Vol. 78 Thursday, No. 2 January 3, 2013

Pages 255–660

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 78, No. 2

Thursday, January 3, 2013

Agricultural Marketing Service NOTICES NOTICES Meetings: Standards for Grades of Eggplant, 283 Environmental Laboratory Advisory Board, 299 Agriculture Department Executive Office of the President See Agricultural Marketing Service See Presidential Documents See Food Safety and Inspection Service See Rural Utilities Service Federal Aviation Administration NOTICES PROPOSED RULES Agency Information Collection Activities; Proposals, Airworthiness Directives: Submissions, and Approvals, 281–283 REIMS AVIATION S.A. Airplanes, 275–277

Census Bureau Federal Communications Commission RULES RULES Resumption of the Population Estimates Challenge Program, Radio Broadcasting Services: 255–260 Maysville, GA, 266–267

Centers for Disease Control and Prevention Federal Energy Regulatory Commission NOTICES NOTICES Agency Information Collection Activities; Proposals, Combined Filings, 296–299 Submissions, and Approvals, 305–308 Federal Mine Safety and Health Review Commission Centers for Medicare & Medicaid Services NOTICES NOTICES Meetings; Sunshine Act, 299–300 Medicare Program: Hospital and Vendor Readiness for Electronic Health Federal Reserve System Records Hospital Inpatient Quality Data Reporting, NOTICES 308–310 Changes in Bank Control: Acquisitions of Shares of Bank or Bank Holding Coast Guard Company, 300 RULES Formations of, Acquisitions by, and Mergers of Bank Moving Security Zones around Escorted Vessels: Holding Companies, 300 Lower Mississippi River, 261–263 Safety Zones: Federal Trade Commission TEMCO Grain Facilities; Columbia and Willamette NOTICES Rivers, 263–266 Proposed Consent Orders: Commerce Department IDEXX Laboratories, Inc., 300–303 See Census Bureau See International Trade Administration Fish and Wildlife Service See National Institute of Standards and Technology RULES See National Oceanic and Atmospheric Administration Endangered and Threatened Wildlife and Plants: See Patent and Trademark Office Designation of Critical Habitat for Southwestern Willow Flycatcher, 344–534 Defense Department PROPOSED RULES NOTICES Endangered and Threatened Wildlife and Plants: Meetings: Reclassification of Continental U.S. Breeding Population Defense Intelligence Agency Advisory Board, 295 of Wood Stork from Endangered to Threatened; Correction, 278–279 Education Department NOTICES Food and Drug Administration Membership: PROPOSED RULES National Advisory Committee on Institutional Quality Nicotine Replacement Therapies and Smoking-Cessation and Integrity, 295–296 Products: Report to Congress on Innovative Products and Energy Department Treatments for Tobacco Dependence; Public Hearing, See Federal Energy Regulatory Commission 277 NOTICES Environmental Protection Agency Guidance for Industry on Providing Regulatory Submissions PROPOSED RULES in Electronic Format: NPDES Permit Regulation and Effluent Limitations Certain Human Pharmaceutical Product Applications, etc. Guidelines Standards: Using Electronic Common Technical Document Concentrated Animal Feeding Operations, 277–278 Specifications, 310–311

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Food Safety and Inspection Service National Institute of Standards and Technology NOTICES NOTICES 2013 Rate Changes for Basetime, Overtime, Holiday, and Meetings: Laboratory Services Rates, 283–285 National Conference on Weights and Measures, 290–292 Visiting Committee on Advanced Technology, 292 General Services Administration NOTICES National Institutes of Health Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Meetings: Office of Citizen Services and Innovative Technologies; Center for Scientific Review, 312–313 Data.gov Feedback Mechanisms, 304–305 National Cancer Institute, 312–314 Proposal to Lease Space, GSA Form 1364, 303–304 National Institute of Allergy and Infectious Diseases, 314

Health and Human Services Department National Oceanic and Atmospheric Administration See Centers for Disease Control and Prevention RULES See Centers for Medicare & Medicaid Services Fisheries of the Exclusive Economic Zone Off Alaska: See Food and Drug Administration Inseason Adjustment to 2013 Bering Sea and Aleutian See National Institutes of Health Islands Pollock, Atka Mackerel, and Pacific Cod See Substance Abuse and Mental Health Services Total, 270–274 Administration Inseason Adjustment to 2013 Gulf of Alaska Pollock and Pacific Cod Total Allowable Catch Amounts, 267– Homeland Security Department 270 See Coast Guard Fisheries Off West Coast States; Pacific Coast Groundfish See U.S. Customs and Border Protection Fishery: RULES 2013–2014 Biennial Specifications and Management Provisional Unlawful Presence Waivers of Inadmissibility Measures, 580–644 for Certain Immediate Relatives, 536–578 PROPOSED RULES Atlantic Highly Migratory Species: Housing and Urban Development Department 2006 Consolidated Highly Migratory Species Fishery Management Plan; Amendment 5, 279–280 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Nuclear Regulatory Commission Continuum of Care Program Application – Technical NOTICES Submission, 315–316 Agency Information Collection Activities; Proposals, Order of Succession for the Office of Housing, 316–317 Submissions, and Approvals, 319–320 Redelegation of Authority to the Deputy Assistant Secretary Applications: for Housing Counseling, 317–318 Arkansas Nuclear One, Units 1 and 2; Creation of Holding Company and Transfer of Facility Operating Licenses, etc., 328–330 Interior Department Grand Gulf Nuclear Station, Unit 1; Creation of Holding See Fish and Wildlife Service Company and Transfer of Facility Operating License, See Land Management Bureau etc., 325–328 River Bend Station, Unit 1; Creation of Holding Company International Trade Administration and Transfer of Facility Operating License, etc., 320– NOTICES 322 Antidumping Duty Administrative Reviews; Results, Waterford Steam Electric Station, Unit 3; Creation of Extensions, Amendments, etc.: Holding Company and Transfer of Facility Operating Circular Welded Carbon Steel Pipes and Tubes from License and Opportunity for Hearing, 323–325 Turkey, 286–287 Antidumping or Countervailing Duty Orders, Findings, or Patent and Trademark Office Suspended Investigations: NOTICES Advance Notification of Sunset Reviews, 287–288 Roundtable Events for Partnership for Enhancement of Opportunity to Request Administrative Review, 288–290 Quality of Software-Related Patents, 292–295

Land Management Bureau Presidential Documents NOTICES EXECUTIVE ORDERS Filings of Plats of Surveys: Government Agencies and Employees: Eastern States; North Carolina, 318–319 Rates of Pay; Adjustment (EO 13635), 649–660 ADMINISTRATIVE ORDERS Maritime Administration Government Agencies and Employees: NOTICES Federal Employee Pay Schedules and Rates Requested Administrative Waivers of Coastwise Trade (Memorandum of December 21, 2012), 645–647 Laws: Vessel HALCYON, 337 Public Debt Bureau NOTICES Mine Safety and Health Federal Review Commission Agency Information Collection Activities; Proposals, See Federal Mine Safety and Health Review Commission Submissions, and Approvals, 341

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Rural Utilities Service U.S. Customs and Border Protection NOTICES NOTICES Environmental Impact Statements; Availability, etc.: Reopenings of Application Periods: Healy Power Generation Unit 2, Healy, AK, 285–286 Air Cargo Advance Screening Pilot Program, 315 Securities and Exchange Commission NOTICES Self-Regulatory Organizations; Proposed Rule Changes: Separate Parts In This Issue ICE Clear Europe Ltd., 330–335 New York Stock Exchange LLC, 335–337 Part II Substance Abuse and Mental Health Services Interior Department, Fish and Wildlife Service, 344–534 Administration

NOTICES Part III Laboratories and Instrumented Initial Testing Facilities that Homeland Security Department, 536–578 Meet Minimum Standards, etc., 314–315 Part IV Surface Transportation Board Commerce Department, National Oceanic and Atmospheric NOTICES Administration, 580–644 Abandonment Exemptions: CSX Transportation, Inc., Ewing Township, Mercer County, NJ, 338 Part V Acquisitions and Operation Exemptions: Presidential Documents, 645–647, 649–660 Buckeye Hammond Railroad, LLC from Buckeye Partners, L.P., 338–339

Transportation Department Reader Aids See Federal Aviation Administration Consult the Reader Aids section at the end of this page for See Maritime Administration phone numbers, online resources, finding aids, reminders, See Surface Transportation Board and notice of recently enacted public laws. Treasury Department To subscribe to the Federal Register Table of Contents See Public Debt Bureau LISTSERV electronic mailing list, go to http:// NOTICES listserv.access.gpo.gov and select Online mailing list Agency Information Collection Activities; Proposals, archives, FEDREGTOC-L, Join or leave the list (or change Submissions, and Approvals, 339–341 settings); then follow the instructions.

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CFR PARTS AFFECTED IN THIS ISSUE

A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.

3 CFR Executive Orders: 13635 (superseded by EO 13594)...... 649 Administrative Orders: Memorandums: Memorandum of December 21, 2012 ...... 647 8 CFR 103...... 536 212...... 536 14 CFR Proposed Rules: 39...... 275 15 CFR 90...... 255 21 CFR Proposed Rules: 15...... 277 33 CFR 165 (2 documents) ...... 261, 263 40 CFR Proposed Rules: 9...... 277 63...... 277 80...... 277 85...... 277 122...... 277 123...... 277 412...... 277 47 CFR 73...... 266 50 CFR 17...... 344 660...... 580 679 (2 documents) ...... 267, 270 Proposed Rules: 17...... 278 635...... 279

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Rules and Regulations Federal Register Vol. 78, No. 2

Thursday, January 3, 2013

This section of the FEDERAL REGISTER income estimates. The program that alternative approaches. In the previous contains regulatory documents having general used those estimates, the General decade, the Census Bureau modified the applicability and legal effect, most of which Revenue Sharing program, was standard methodology to accommodate are keyed to and codified in the Code of eliminated for the States in 1980 and challenges by allowing housing unit Federal Regulations, which is published under was not reauthorized for local 50 titles pursuant to 44 U.S.C. 1510. based estimates to supplant cohort- governments after fiscal year 2000. component based estimates at the The Code of Federal Regulations is sold by DATES: This Final Rule is effective on county level, and eliminating key sets of the Superintendent of Documents. Prices of February 4, 2013. population controls generally imposed new books are listed in the first FEDERAL FOR FURTHER INFORMATION CONTACT: Mr. on county and subcounty estimates. The REGISTER issue of each week. Rodger V. Johnson, Chief, Local evaluations show that the challenge Government Estimates and Migration procedure used in the previous decade Processing Branch, Population Division, resulted in less accurate estimates of the DEPARTMENT OF COMMERCE U.S. Census Bureau, Room 6H480, Mail population of governmental units. This Bureau of the Census Stop 8800, Washington, DC 20233– has led the Census Bureau to revise the 8800, by telephone on (301) 763–2461, challenge process to no longer accept 15 CFR Part 90 by FAX (301) 763–2516, or by email at estimates developed from methods [email protected]. different from those used by the Census [Docket Number 111215758–2650–04] SUPPLEMENTARY INFORMATION: Bureau. In the revised challenge process, the Census Bureau will only RIN 0607–AA51 Background accept a challenge when the evidence Resumption of the Population The Census Bureau is mandated to provided identifies the use of incorrect Estimates Challenge Program release population estimates annually in data, processes, or calculations in the accordance with Title 13 of the United estimates. AGENCY: Bureau of the Census, States Code (U.S.C.). These estimates are The Census Bureau is resuming the Department of Commerce. based upon the most recent Decennial Population Estimates Challenge Program ACTION: Final rule. Census of Population and Housing and compiled from the most current to provide eligible governmental units SUMMARY: The Bureau of the Census administrative and survey data available the opportunity to challenge population (Census Bureau) is resuming the for that purpose. As part of its estimates for 2011 and subsequent Population Estimates Challenge Program authorization, the Census Bureau offers years. Previously, the Census Bureau to provide eligible governmental units an opportunity for local units of general- published a final rule on January 4, the opportunity to file requests for the purpose government (hereinafter 2010, in the Federal Register (75 FR 44) review of population estimates for 2011 collectively ‘‘governmental unit’’) to to announce that beginning on February and subsequent years. The Census challenge these official estimates 3, 2010, the Census Bureau would Bureau is amending its regulations to: through its Population Estimates temporarily suspend the Population Update references to the method by Challenge Program. Under this program, Estimates Challenge Program during the which population estimates are a sub-state governmental unit may decennial census year and the following officially released; clarify when a challenge their population estimate by year to accommodate the taking of the challenge of a population estimate can submitting additional data to the Census 2010 Census, and indefinitely suspend be requested; specify who may file a Bureau for evaluation. If the additional the Per Capita Income Estimates request for a population estimate data are accepted during the review Challenge Program. The suspension of challenge; remove all references to the period by the Census Bureau, resulting the program was followed up on August per capita income estimates program in an updated population estimate, the 10, 2012, by the Census Bureau with a and the Office of General Revenue Census Bureau will provide a written Notice of Proposed Rulemaking and Sharing; change the regulation title of a notification to the governmental unit Request for Comments in the Federal current program from ‘‘Procedure for and publish the revised estimate at Register (77 FR 47783) for its program, Challenging Certain Population and www.census.gov. If the additional data entitled ‘‘Resumption of the Population Income Estimates’’ to ‘‘Procedure for are not accepted for a revised estimate, Estimates Challenge Program and Challenging Population Estimates’’ to the Census Bureau will notify the Proposed Changes to the Program.’’ In reflect the removal of the per capita governmental unit. In those instances that announcement, the Census Bureau income estimates program; revise the where a non-functioning county-level proposed resuming the Population requirements of the challenge process; government or statistical equivalent Estimates Challenge Program in 2012 to and remove all references to a formal exists, the State member agencies of the provide eligible entities the opportunity challenge process. The changes to the Federal-State Cooperative for to file requests for the review of procedure for the Population Estimates Population Estimates (FSCPE) program population estimates for 2011 and Challenge Program clarify and may represent the area. subsequent years. The proposal was streamline the procedures for local units Changes to the challenge process for available for comment during a 30-day of general-purpose government. The this decade are based on results of period that ended on September 10, Census Bureau is removing the evaluations of the accuracy of the 2012. The Census Bureau has now references for the per capita income Census Bureau’s current methodology reviewed these comments and estimates changes because the Census for producing population estimates responded to them below in this final Bureau no longer produces per capita compared with the accuracy of rule.

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Summary of Comments and Responses estimates program that focuses upon challenge program essentially The Census Bureau received eight sets improving the accuracy of the estimates. meaningless by cutting off any options of comments during the comment Commenter 2. The commenter wrote for localities to offer an alternative period. A summary of these comments in with concern towards one part of the approach for county-level population and the detailed responses by the notice that stated that ‘‘sub-state estimates; the commenter offered governmental units be the sole entity to Census Bureau are provided below: several comments to support this Commenter 1. The commenter stated request a challenge * * * for their viewpoint. The commenter stated that that the Census Bureau’s proposal respective jurisdictions.’’ The ‘‘no one estimates methodology has greatly reduces the opportunities for commenter noted that in states of the proven itself to be accurate for all types localities to challenge county-level Northeast, counties exist that do not of areas in the country’’ and that population estimates that the Census serve legally as functioning general- ‘‘reliance on a single Administrative Bureau initially produces through the purpose governmental units. In such Records (ADREC) method for instances, there would be no cohort-component or Administrative production of county population functioning governmental body to Records (ADREC) method. The estimates and a variation of the housing represent the area. In these states or in commenter agreed that this method unit method for subcounty estimates certain counties within them, often the overall produced the most accurate simply ignores the fact that alternative only governmental units in place are county-level estimates, as compared to methods and data sources can produce minor civil divisions in the form of the 2010 Census counts, nevertheless, quality estimates at any given point in towns or equivalent areas that are the commenter pointed out that there time and for any given area.’’ The subdivisions of their respective commenter argued that the proposal not were exceptions in which a housing counties. The commenter requested that to allow alternative estimates was to unit based method did produce an the Census Bureau reconsider this rule some degree influenced by potential estimate closer to the 2010 Census and provide for some flexibility in the difficulty that the Census Bureau would results. The commenter also suggested rule in order to allow State level experience in incorporating alternate that the Census Bureau continue to representation of these non-functioning challenges into the existing production pursue research on alternate methods of counties should the state representative environment that the Census Bureau population estimation in the event that find issues with regard to the uses to produce the estimates in the first these methods that were proven to be population estimates and the place. The commenter stated that the less useful at one point in time, may be components. Census Bureau should allow alternative more useful in the future. More Response 2. The Census Bureau based estimates that meet certain tests of specifically, the commenter suggested acknowledges the issue and concurs the accuracy of these methods against that the Census Bureau consider a pilot that it is necessary to implement established decennial census results. program in which a small cross-section appropriate wording changes to define a Finally, the commenter suggested noting of jurisdictions, with participation role for States to represent these non- the FSCPE member agencies as a through the FSCPE member agencies, functioning governmental units for the potential technical resource available to provide information towards the next purposes of the challenge program. sub-state governmental units. round of evaluative studies. None of the counties in Connecticut or Response 3. During the temporary Response 1. The Census Bureau Rhode Island are classified by the suspension the Population Estimates acknowledges that a variant of the Census Bureau as active functioning and the Per Capita Income Estimates housing unit based method did produce general-purpose governmental units; in Challenge Programs attendant to the more accurate results in some instances, Massachusetts, nine of its fourteen 2010 Census, the Census Bureau as compared to the 2010 Census. counties are not classified as active evaluated the 2010 population estimates However, the ADREC method functioning general-purpose and the methods used to create them. consistently produced county-level governmental units. In Maine, New These evaluations also were meant to estimates closer to the 2010 Census Hampshire, and Vermont, the Census inform the redesign of the challenge results, whereas the housing unit based Bureau classifies all counties as active program. As part of this process, the population estimates were upwardly functioning general-purpose Census Bureau assessed the county- biased. The program changes will governmental units. In Alaska, the level population estimates produced enable eligible governmental units to county-equivalent Census Areas are with the ADREC and housing unit focus their comments upon the data statistical units and therefore may need methods against 2010 Census results. used to produce population estimates representation by the State government (These results were publicly released on and to provide alternative or should an issue arise with regard to the Census Bureau’s Web site). supplemental data to the Census Bureau their estimates and component data. It was clear that the best overall and to evaluate for use in revising the The Census Bureau has amended the defensible approach to estimation of original estimate under the existing regulations in this final rule to recognize county-level governmental units was methodology. Incorporating this the FSCPE member agencies in the through the ADREC method. In challenge-based data systematically challenge program in order to present addition, it also became clear that the each year will improve the credibility appropriate data on behalf of these non- employment of a variation on the and accuracy of the subsequent functioning entities. The Census Bureau housing unit based method generally estimates and contribute to a longer- will continue to monitor legal status produced estimates that were more term goal of continuous improvement in changes in the future that may result in biased than the ADREC method when the estimation process. The Census one or more counties changing from compared to the 2010 Census results. Bureau accepts the suggestion to active, general-purpose governmental The evaluations also did not identify a continue to work with the FSCPE units into non-functioning clear-cut means to determine for any member agencies, county, and local governmental entities to ensure given county or equivalent when a governments to maintain a research coverage by the FSCPE member housing unit based method would yield agenda that addresses alternate methods agencies. a more accurate estimate than that of estimation, not as official estimates, Commenter 3. The commenter stated produced by the ADREC method. Given but to help inform a population that the proposal would make the these factors, it became evident that in

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redesigning the challenge program, the representation for non-functioning identify alternate approaches to the Census Bureau needed to build a county-level entities. The commenter current estimates that are based upon process that would capture the most also requested that we continue to systematically identifiable and unbiased accurate demographic components that accept housing conversion data for non- criteria. were consistent and complementary residential to residential use and accept Commenter 8. The eighth commenter with the existing estimates program locally documented data on suggested that the Census Bureau clarify methodologies. The Census Bureau did demolitions. in its challenge program documentation not accept the assertion from the Response 6. The Census Bureau that the FSCPE member agencies be commenter that the Census Bureau concurs with the sixth commenter on specified as a potential technical should accept alternative methods with the issue of non-functioning county- resource to localities that are a provision for testing against decennial level entities. Please see Response to contemplating challenging a population census results. However, the Census Commenter 2. In response to the second estimate. The second point from this Bureau has indicated its willingness to concern about conversions of non- commenter was that the challenge work with localities through the FSCPE residential to residential units and program from the previous decade member agencies to provide information demolitions, the Census Bureau will added approximately 770,000 people to towards the next round of evaluative continue to accept properly documented the national estimate. In addition, the studies. Please see Response to data, including basic street address and commenter suggested that the Bureau Commenter 1. unit (apartment, etc.) designations of the look at a threshold based on the Commenter 4. The commenter converted units. Data that are to estimates evaluation research that provided essentially the same substitute or replace the Census Bureau would allow an estimate challenge observation as the second commenter estimated housing loss figures must using other data and methods, with regard to the representation for include residential housing specifically the housing estimate, if the non-functioning counties or statistical condemnations, demolitions, and/or difference between the two estimates equivalents. units that are uninhabitable, in order to exceeded that threshold. Finally, the Response 4. The Census Bureau be as comprehensive in scope as the commenter suggested that the Census concurs with the fourth commenter. original survey data used to estimate Bureau engage the FSCPE member Please see Response to Commenter 2. housing loss. agencies as technical experts in Commenter 5. The commenter Commenter 7. The commenter is reviewing a challenge and/or another supports the rule change from reliance opposed to the exclusion of housing state agency that may have expertise to upon alternative estimates to a process based methods to estimate county-level help review the alternative estimate. whereby governmental units provide governmental units. The commenter Response 8. The Census Bureau evidence of the use of incorrect data, would like the Census Bureau to concurs with the first suggestion that we processes, or calculations in the continue to leave open the option for a incorporate into the program estimates and not necessarily alternative challenging county-level governmental documentation that FSCPE member estimates. The commenter expressed unit to provide a housing based agencies could assist a locality in concern for the potential of a challenge alternative as opposed to providing mounting a challenge. In regard to the to be denied because a full explication updated data for the Census Bureau’s second point, we note that the of the criteria, standards, and regular cohort component (ADREC) based additional population incorporated into processes the Census Bureau employs to estimate. The writer also expressed the the national total did not systematically generate the population estimates was view ‘‘that the proposed policy flies in address the error of closure between the not available in the notice. Therefore, the face of all available scientific 2000 and the 2010 Census nor did it the commenter requested that the evidence as well as good judgment.’’ address shortfalls in the identification of Census Bureau recognize an advisory Response 7. The Census Bureau immigration, therefore, it cannot be role to the Census Bureau by the FSCPE consulted a variety of stakeholders on judged as a positive aspect of the former member agencies to ‘‘to gauge how well the elements of the proposal in order to challenge program to emulate. The third the challenge and estimates program design a program based upon the suggestion is one that we will consider complement each other.’’ The evaluation research conducted during as part of the ongoing research agenda commenter also requested that outside the 2010 Census. The research with the FSCPE member agencies and experts like the FSCPE member agencies conducted jointly by the Census Bureau others, but not to produce an official be provided with all communications and its partners in the FSCPE pointed to revised estimate to replace the ADREC between the Census Bureau and the the overall accuracy of the ADREC method results. The Census Bureau also challenging governmental unit, method when compared to the 2010 accepts the suggestion that the FSCPE suggested that the FSCPE member Census results. However, as stated in member agencies also be consulted to agencies could advise the Census the third response, the research assist in evaluating challenges from Bureau on changes in either the evaluations also did not identify a clear- their respective sub-state governments. Estimates or the Challenge program, as cut means to determine for any given This is substantially the same response they have excellent knowledge of the county or equivalent when a housing as that to the fifth commenter. estimates process and can represent the based method would yield a more Changes From Proposed Rule interests of local governmental units. accurate estimate than that produced by Response 5. The Census Bureau the ADREC method. The Census Bureau As commenters noted in their appreciates the expression of support has designed a program with guiding comments, the proposed rule made no for the new challenge program. As principles to govern outcomes more provision for representation of counties stated in the responses to other consistent with the current evaluation in selected states of the Northeast that comments, the Census Bureau will results. The Census Bureau also will do not serve legally as functioning appropriately consult with the FSCPE continue to conduct research work with general-purpose governmental units. In member agencies during the course of the FSCPE and others towards the next such instances, no functioning county- the program. evaluation period to improve upon the level governmental body exists to Commenter 6. The commenter was challenge and estimates programs and, represent the area. The commenters concerned about the lack of if possible, to determine means to requested that the Census Bureau

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provide for some flexibility in the rule the Census Bureau’s Internet site (rather equivalent that comprise each state. in order to allow State-level than published in the Federal Register). Therefore, sub-state governmental units representation of these non-functioning Section 90.6 reduces the time period are the most appropriate level to request counties with regard to the population when a challenge to a population a challenge of the population estimates estimates and the components. The estimate may be filed from 180 days to for their respective jurisdictions. In Census Bureau acknowledged the issue, 90 days after the release of the estimates addition, the Census Bureau and the noted that it also existed for some parts by the Census Bureau. In the Census state governments have formally of Alaska, and agreed to implement Bureau’s judgment, 90 days are established and have maintained a long- appropriate wording changes to define a sufficient for an applicant to review the term working relationship through the role for States to represent these non- population estimate and to submit Federal-State Cooperative for functioning governmental units in the additional data to update the population Population Estimates (FSCPE). State challenge program. Specifically, the estimate. This change ensures that, in agencies, designated by their respective Census Bureau added a new definition most instances, the Census Bureau governors, work in cooperation with the for the term non-functioning reviews and incorporates accepted data Census Bureau to produce population governmental units at paragraph (f) to into subsequent estimates releases in a estimates. The Census Bureau initiates Section § 90.3, and re-designated the timely manner. the process of preparing population language formerly at paragraph (f) in Section 90.8 specifies that the types of estimates by updating population new paragraph (g). Paragraph (g) also data that are submitted must be information from the most recent acknowledges non-functioning consistent with the criteria, standards, decennial census with information governmental units as an eligible and regular processes the Census found in the annual administrative governmental unit for the purposes of Bureau employs to generate the records of Federal and state agencies. the challenge program. The Census population estimate. The Census Bureau The Federal agencies provide tax Bureau also revised Section § 90.5 to will provide additional Web-based records, Medicare records, and some acknowledge non-functioning information describing the data that are vital statistics and group quarters governmental units. required and how the governmental unit information. The FSCPE member may contact the Census Bureau. Section agencies supply vital statistics and Summary of Provisions Implemented § 90.8 specifies what methods can be information about group quarters like by This Final Rule used in the challenge process. college dorms or prisons. The Census Section 90.9 specifies that the Census Bureau combines census base data, The Census Bureau is resuming the Bureau will work with the governmental administrative records, and selected Population Estimates Challenge Program unit to verify the data that it has survey data to produce current to provide governmental units the submitted, evaluate the data submitted, population estimates consistent with the opportunity to challenge population and render its decision in writing to the last decennial census results. Moreover, estimates for 2011 and subsequent governmental unit. The Census Bureau the Census Bureau provides preliminary years. The Census Bureau is amending will also post the revised population its regulations to: (1) Update references estimate at www.census.gov. governmental unit estimates to the to the method by which population Furthermore, new § 90.5 specifies FSCPE member agencies for review and estimates are officially released; (2) who may file a request for a challenge comment to resolve data processing clarify when a challenge of a population to a population estimate. Under the issues identified during that period. estimate can be requested; (3) specify revised regulations, the chief executive Under the challenge program, the who may file a request for a population officer or highest elected official of the FSCPE member agencies, appointed by estimate challenge; (4) remove all requesting governmental unit is the only their respective governors, will be references to per capita income individual authorized to submit such eligible to represent counties or estimates and the Office of General requests. This change ensures that statistical equivalents that do not Revenue Sharing; (5) change the persons authorized by law to commit function as active general-purpose regulation title of a current program the governmental unit to a particular governmental units. This situation from ‘‘Procedure for Challenging Certain course of action have approved the exists in Connecticut, Rhode Island, for Population and Income Estimates’’ to request for a challenge prior to selected counties in Massachusetts, and ‘‘Procedure for Challenging Population submission to the Census Bureau. The for the Census Areas in Alaska. For the Estimates’’ to reflect the removal of the Census Bureau revises all applicable purposes of this program, the District of per capita income estimates program; (6) sections of the Population Estimates Columbia is treated as a statistical revise the requirements of the challenge Challenge Program regulations to equivalent of a county and, therefore, process; and (7) remove all references to specify that the sub-state governmental also eligible to participate. a formal challenge process. units be the sole entity to request a Existing §§ 90.9 through 90.18 are These changes to the regulations challenge for the population estimates deleted. In the Census Bureau’s clarify the procedure for seeking a for their respective jurisdictions. In the judgment, these sections are population estimate challenge by a event that a county-level governmental unnecessary, as the Population governmental unit and to make the unit or statistical equivalent is not an Estimates Challenge Program does not regulations clearer by eliminating out- active general-purpose government, the include a formal challenge process. This of-date provisions. The Census Bureau FSCPE member agency may serve as change is consistent with the in § 90.6 is updating references to the sponsor of the challenge and the procedures advanced in § 90.8 and method by which population estimates governor will serve as the highest § 90.9 to specify the required data and are officially released to reflect elected official. Additional detail on this to verify that data are accurate and widespread use of the Internet (rather exception is noted in the following complete before the Census Bureau than the Federal Register) for paragraph. reviews the data and renders its disseminating official demographic Under the method employed by the decision on whether or not to update data. For example, governmental units Census Bureau, state-level population the population estimate. Ending the may initiate the challenge process after estimates are a summary of the formal process removes a redundant the population estimates are posted on estimates for each county or statistical procedure and, therefore, enables the

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Census Bureau to render a more timely Program was eliminated for the States in income from the regulations. The decision during the review and update 1980 under the State and Local Fiscal Census Bureau is changing the titling of process. The Census Bureau is Assistance Act Amendments of 1980 the program to reflect the fact that the eliminating all references to the per (Pub. L. 96–604, section 2, 94 Stat. 3516 Census Bureau no longer generates per capita income estimates program and (1980)), and was not reauthorized for capita income estimates previously the General Revenue Sharing Program local governments after fiscal year 2000 mandated by law. from its regulations at 15 CFR part 90 (See Pub. L. 103–322, section 31001, The Census Bureau is making minor because the Census Bureau no longer 108 Stat. 1796, 1859 (1994)). Due to the technical changes to the regulations, produces per capita income estimates. discontinuation of the General Revenue such as renumbering sections and The Census Bureau generated the per Sharing Program, the Census Bureau no heading titles to reconcile the changes capita income estimates for the General longer needs to generate and publish per proposed in this rule. The following Revenue Sharing Program, pursuant to capita income estimates. In order to chart reflects the renumbering of Section 109(a) of the State and Local avoid any confusion regarding the status sections and revisions to heading titles, Fiscal Assistance Act of 1972 (Pub. L. of the per capita income estimates with new and revised sections noted in 92–512, section 109(a), 86 Stat. 919, 929 program, the Census Bureau is parentheses, for the public’s (1972)). The General Revenue Sharing eliminating all references to per capita convenience:

Former Effective February 4, 2013

PART 90 PROCEDURE FOR CHALLENGING CERTAIN POPU- PART 90 PROCEDURE FOR CHALLENGING POPULATION ESTI- LATION AND INCOME ESTIMATES. MATES 90.1 Scope and applicability ...... 90.1 Scope and applicability. 90.2 Policy of the Census Bureau ...... 90.2 Policy of the Census Bureau. 90.3 Definitions ...... 90.3 Definitions. 90.4 General ...... 90.4 General. (New) 90.5 Who may file a challenge. 90.5 When an informal challenge may be filed ...... 90.6 When a challenge may be filed. 90.6 Where to file challenge ...... (Revised) 90.7 Where to file a challenge. 90.7 Evidence required ...... (Revised) 90.8 Evidence required. 90.8 Review of challenge ...... (Revised) 90.9 Review of challenge. 90.9 When formal procedure may be invoked ...... (Deleted). 90.10 Form of formal challenge and time limit for filing ...... (Deleted). 90.11 Appointment of hearing officer ...... (Deleted). 90.12 Qualifications of hearing officer ...... (Deleted). 90.13 Offer of hearing ...... (Deleted). 90.14 Hearing ...... (Deleted). 90.15 Decision by Director ...... (Deleted). 90.16 Notification of adjustment ...... (Deleted). 90.17 Timing for hearing and decision ...... (Deleted). 90.18 Representation ...... (Deleted).

Regulatory Flexibility Act Paperwork Reduction Act (PRA), 44 ■ 3. Revise 15 CFR part 90 to read as The Chief Counsel for Regulation of U.S.C., Chapter 35. Notwithstanding any follows: other provision of the law, no person is the Department of Commerce certified PART 90—PROCEDURE FOR to the Chief Counsel for Advocacy of the required to respond to, nor shall any person be subject to a penalty for failure CHALLENGING POPULATION Small Business Administration during ESTIMATES the proposed rule stage that this action to comply with, a collection of would not have a significant economic information subject to the requirements Sec. impact on a substantial number of small of the PRA, unless that collection of 90.1 Scope and applicability. entities. The factual basis for this information displays a currently valid 90.2 Policy of the Census Bureau. determination was published in the OMB Control Number. 90.3 Definitions. 90.4 General. proposed rule and is not repeated here. List of Subjects in 15 CFR part 90 90.5 Who may file a challenge. No comments were received regarding 90.6 When a challenge may be filed. the certification. As a result, a Administrative practice and 90.7 Where to file a challenge. regulatory flexibility analysis was not procedure, Census data, Population 90.8 Evidence required. required and none was prepared. census, Statistics. 90.9 Review of challenge. Executive Orders For the reasons stated in the Authority: 13 U.S.C. 4 and 181. preamble, the Census Bureau is This rule has been determined to be amending 15 CFR part 90 to read as § 90.1 Scope and applicability. not significant for purposes of Executive follows: Between decennial censuses, the Order 12866. This rule does not contain Census Bureau annually prepares policies with federalism implications as PART 90—[AMENDED] statistical estimates of the number of that term is defined in Executive Order people residing in states and their 13132. ■ 1. The authority citation for part 90 governmental units. In general, these continues to read as follows: estimates are developed by updating the Paperwork Reduction Act Authority: 13 U.S.C. 4 and 181. population counts produced in the most This notice of final rulemaking does recent decennial census with not contain a collection of information ■ 2. Lift the stay on part 90 published demographic components of change subject to the requirements of the at 75 FR 46, Jan. 4, 2010. data and/or other indicators of

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population change. These rules § 90.5 Who may file a challenge. births, deaths, migration, and change in prescribe the administrative procedure A request for a challenge of a the group quarters population. The available to governmental units to population estimate generated by the Census Bureau will consider a challenge request a challenge to the most current Census Bureau may be filed only by the based on additional information on one of these estimates. chief executive officer or highest elected or more of the components of change or official of a governmental unit. In those § 90.2 Policy of the Census Bureau. about the group quarters population in instances where the FSCPE member a locality. It is the policy of the Census Bureau agency represents a non-functioning (c) For minor civil divisions and to provide the most accurate population county or statistical equivalent, the estimates possible given the constraints governor will serve as the chief incorporated places, the Census Bureau of time, money, and available statistical executive officer or highest elected uses a housing unit method to distribute techniques. It is also the policy of the official. the county population. The components Census Bureau to provide governmental in this method include housing units, units the opportunity to seek a review § 90.6 When a challenge may be filed. occupancy rates, and persons per and provide additional data to these (a) A request for a challenge to a household plus an estimate of the estimates and to present evidence population estimate may be filed any population in group quarters. The relating to the accuracy of the estimates. time up to 90 days after the release of Census Bureau will consider a challenge § 90.3 Definitions. the estimate by the Census Bureau. based on data related to changes in an Publication by the Census Bureau on its As used in this part (except where the area’s housing stock, such as data on Web site (www.census.gov) shall context clearly indicates otherwise) the demolitions, condemned units, constitute release. Documentation following definitions shall apply: uninhabitable units, building permits, (a) Census Bureau means the U.S. requesting a challenge of any estimate or mobile home placements or other Census Bureau, Department of may also be filed any time up to 90 days comparable housing inventory based Commerce. after the date the Census Bureau, on its data. The Census Bureau will also (b) Population Estimates Challenge own initiative, revises that estimate. consider a challenge based on (b) If, however, a governmental unit means, in accordance with this part, the additional information about the group has a sufficiently meritorious reason for process a governmental unit may use to quarters population in a locality. provide additional input data for the not filing in a timely manner, the Census Bureau’s population estimate Census Bureau has the discretion to (d) The Census Bureau will also and the submission of substantive accept the late request. provide a guide on its Web site as a reference for governmental units to use documentation in support thereof. § 90.7 Where to file a challenge. (c) Director means Director of the in developing their data as evidence to Census Bureau, or an individual A request for a population estimate support a challenge to the population designated by the Director to perform challenge must be prepared in writing estimate. In addition, a governmental under this part. by the governmental unit and filed with unit may address any additional (d) Population estimate means a the Chief, Population Division, Census questions by contacting the Census statistically developed calculation of the Bureau, Room 5H174, Mail Stop 8800, Bureau at the address provided in Washington, DC 20233. The number of people living in a § 90.7. governmental unit to update the governmental unit must designate a preceding census or earlier estimate. contact person who can be reached by § 90.9 Review of challenge. (e) A governmental unit means the telephone during normal business hours The Chief, Population Division, government of a county, municipality, should questions arise with regard to Census Bureau, or the Chief’s designee township, incorporated place, or other the submitted materials. shall review the evidence provided with minor civil division, which is a unit of § 90.8 Evidence required. general-purpose government below the the request for the population estimate State. (a) The governmental unit shall challenge, shall work with the (f) A non-functioning county or provide whatever evidence it has governmental unit to verify the data statistical equivalent means a sub-state relevant to the request at the time of provided by the governmental unit, and entity that does not function as an active filing. The Census Bureau may request evaluate the data to resolve the issues general-purpose governmental unit. further evidence when necessary. The raised by the governmental unit. This situation exists in Connecticut, evidence submitted must be consistent Thereafter, the Census Bureau shall Rhode Island, for selected counties in with the criteria, standards, and regular respond in writing with a decision to Massachusetts, and for the Census Areas processes the Census Bureau employs to accept or deny the challenge. In the in Alaska. generate the population estimate. The event that the Census Bureau finds that (g) For the purposes of this program, Census Bureau has revised the challenge the population estimate should be process to no longer accept estimates an eligible governmental unit also updated, it will also post the revised developed from methods different from includes the District of Columbia and estimate on the Census Bureau’s Web those used by the Census Bureau. In the non-functioning counties or statistical site (www.census.gov). equivalents represented by a FSCPE revised challenge process, the Census member agency. Bureau will only accept a challenge Dated: December 26, 2012. when the evidence provided identifies Thomas L. Mesenbourg, Jr., § 90.4 General. the use of incorrect data, processes, or Acting Director, Bureau of the Census. This part provides a procedure for a calculations in the estimates. [FR Doc. 2012–31598 Filed 1–2–13; 8:45 am] governmental unit to request a challenge (b) For counties and statistical of a population estimate of the Census equivalents, the Census Bureau uses a BILLING CODE 3510–07–P Bureau. The Census Bureau, upon cohort-component of change method to receipt of the appropriate produce population estimates. Each documentation, will attempt to resolve year, the components of change are the estimate with the governmental unit. updated. These components include

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DEPARTMENT OF HOMELAND Coast Guard; telephone (504) 365–2392, to carry oil or hazardous materials in SECURITY email [email protected]. If you bulk, and vessels carrying liquefied have questions on viewing or submitting hazardous gas as defined in 33 CFR part Coast Guard material to the docket, call Renee V. 127 have been deemed by the COTP Wright, Program Manager, Docket New Orleans to require escort protection 33 CFR Part 165 Operations, telephone (202) 366–9826. during transit between mile marker 88.0 and mile marker 106.0 of the Lower [Docket Number USCG–2012–1078] SUPPLEMENTARY INFORMATION: Mississippi River, between January and Table of Acronyms RIN 1625–AA87 April, 2013. Establishment of a moving DHS—Department of Homeland Security security zone allows the Coast Guard to Moving Security Zone Around FR—Federal Register provide enhanced security of escorted Escorted Vessels on the Lower NPRM—Notice of Proposed Rulemaking vessels during transit, thereby Mississippi River A. Regulatory History and Information protecting the escorted vessels and the public from destruction, loss, or injury AGENCY: Coast Guard, DHS. The Coast Guard is issuing this final from sabotage or other subversive acts, ACTION: Temporary final rule. rule without prior notice and accidents, or other causes of similar opportunity to comment pursuant to nature. When considering this rule the SUMMARY: The Captain of the Port of authority under section 4(a) of the Coast Guard considered the alternative New Orleans (COTP New Orleans) is Administrative Procedure Act (APA) (5 option of vessel traffic restrictions establishing a Moving Security Zone on U.S.C. 553(b)). This provision during the transit of vessels deemed in the Mississippi river, mile marker 88.0 authorizes an agency to issue a rule need of escorts. We determined that through mile marker 106.0, extending without prior notice and opportunity to establishment of a moving security zone 300 yards on all sides of vessels being comment when the agency for good provides for enhanced protection of escorted by one or more Coast Guard cause finds that those procedures are escorted vessels while causing little if assets or other federal, state, or local law ‘‘impracticable, unnecessary, or contrary any disruption to other routine enforcement agency assets. A vessel to the public interest.’’ Under 5 U.S.C. navigation since most vessels will be may request permission of the COTP 553(b)(B), the Coast Guard finds that allowed to transit within the outer 250 New Orleans or the on-scene Coast good cause exists for not publishing a yards of the security zone once a Guard or enforcement agency asset to notice of proposed rulemaking (NPRM) deviation to the rule is requested and enter the security zone, and if with respect to this rule. Based on a risk granted. permitted, must proceed at the evaluation conducted on December 4, The legal basis and authorities for this minimum safe speed and must comply 2012, the Coast Guard has decided that rule are found in 33 U.S.C. 1231, 46 with the orders of the COTP New a moving security zone regulation is U.S.C. Chapter 701, 3306, 3703; 50 Orleans or the on-scene asset. The COTP required from on or about January 1 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, New Orleans will inform the public of until March 31, 2013. This security zone 6.04–6, and 160.5; Public Law 107–295, the existence or status of the security is required to protect escorted vessels 116 Stat. 2064; and Department of zones around escorted vessels in the and personnel from destruction, loss, or Homeland Security Delegation No. regulated area by Marine Safety injury from sabotage or other subversive 0170.1, which collectively authorize the Information Bulletins or Broadcast acts, accidents, or other causes of Coast Guard to propose, establish, and Notice to Mariners. This moving similar nature. The NPRM process define regulatory safety zones. security zone is necessary to protect would unnecessarily delay the effective C. Discussion of the Final Rule vessels deemed to be in need of escort dates and would be contrary to public protection by the COTP New Orleans for interest by delaying or foregoing the The Coast Guard is establishing security reasons. necessary protections required for the moving security zones for escorted DATES: This rule is effective from escorted vessels and personnel. vessels to protect the escorted vessels January 1, 2013, through March 31, Under 5 U.S.C. 553(d)(3), the Coast and personnel. While this rule is 2013. Guard finds that good cause exists for effective, when an escorted vessel is making this rule effective less than 30 transiting between miles 88 and 106 on ADDRESSES: Documents mentioned in days after publication in the Federal the Lower Mississippi River, there will this preamble are part of docket [USCG– Register. This temporary final rule is be a 300-yard security zone around the 2012–1078]. To view documents needed to protect escorted vessels and escorted vessel. The COTP New Orleans mentioned in this preamble as being personnel from destruction, loss, or may permit persons and vessels to available in the docket, go to http:// injury from sabotage or other subversive transit through the security zone at a www.regulations.gov, type the docket acts, accidents, or other causes of a minimum safe speed, so long as no number in the ‘‘SEARCH’’ box and click similar nature. The 30-day notice period vessel or person enters within the 50- ‘‘SEARCH.’’ Click on Open Docket would be impracticable and yard portion of the security zone closest Folder on the line associated with this unnecessarily delay the effective dates to the vessel. Permission to enter the rulemaking. You may also visit the and protections required for these security zone may be requested from the Docket Management Facility in Room escorted vessels and personnel. COTP New Orleans through the on- W12–140 on the ground floor of the scene Coast Guard or enforcement Department of Transportation West B. Basis and Purpose agency asset, via VHF–FM Ch.12, VHF– Building, 1200 New Jersey Avenue SE., The purpose of this rule is to provide FM Ch. 67, or the Coast Guard Vessel Washington, DC 20590, between 9 a.m. enhanced protection of escorted vessels Traffic Center at (504) 365–2330. The and 5 p.m., Monday through Friday, on a portion of the Lower Mississippi COTP New Orleans will inform the except Federal holidays. River between January and April 2013. public of the existence or status of the FOR FURTHER INFORMATION CONTACT: If Certain vessels, including high capacity security zones around escorted vessels you have questions on this rule, call or passenger vessels, vessels carrying in the regulated area by Marine Safety email Lieutenant Commander (LCDR) certain dangerous cargoes as defined in Information Bulletins or Broadcast Kenneth Blair, Sector New Orleans, U.S. 33 CFR part 60, tank vessels constructed Notice to Mariners. Coast Guard assets

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or other Federal, State or local law mile marker 106.0 of the Lower Federalism, if it has a substantial direct enforcement agency assets will be Mississippi River, extending 300 yards effect on the States, on the relationship clearly identified by lights, vessel in all directions of an escorted vessel. between the national government and markings, or with agency insignia. This security zone would not have a the States, or on the distribution of significant economic impact on a power and responsibilities among the D. Regulatory Analyses substantial number of small entities for various levels of government. We have We developed this rule after the following reasons. This security analyzed this rule under that Order and considering numerous statutes and zone would be activated, and thus determined that this rule does not have executive orders related to rulemaking. subject to enforcement, for only those implications for federalism. Below we summarize our analyses times when a vessel is under escort. The based on a number of these statutes or security zone location is within the New 6. Protest Activities executive orders. Orleans Harbor Vessel Service Area that The Coast Guard respects the First 1. Regulatory Planning and Review requires vessels transiting to check in Amendment rights of protesters. when entering the area or when Protesters are asked to contact the This rule is not a significant departing berth. This pre-existing check person listed in the FOR FURTHER regulatory action under section 3(f) of in requirement will assist in granting INFORMATION CONTACT section to Executive Order 12866, Regulatory early permission for deviation from the coordinate protest activities so that your Planning and Review, as supplemented rule allowing vessels to pass through the message can be received without by Executive Order 13563, Improving zone. Although the safety zone would jeopardizing the safety or security of Regulation and Regulatory Review, and apply 300 yards around the escorted people, places, or vessels. does not require an assessment of vessel and encompass almost the entire 7. Unfunded Mandates Reform Act potential costs and benefits under width of the river, traffic would be section 6(a)(3) of Executive Order 12866 allowed to pass through the zone with The Unfunded Mandates Reform Act or under section 1 of Executive Order the permission of the Captain of the of 1995 (2 U.S.C. 1531–1538) requires 13563. The Office of Management and Port. Before the activation of the zone, Federal agencies to assess the effects of Budget has not reviewed it under those we would issue maritime advisories their discretionary regulatory actions. In Orders. It is not ‘‘significant’’ under the widely available to users of the river. particular, the Act addresses actions regulatory policies and procedures of that may result in the expenditure by a the Department of Homeland Security 3. Assistance for Small Entities State, local, or tribal government, in the (DHS). The impact of this security zone Under section 213(a) of the Small aggregate, or by the private sector of will be minimal as the zone will only be Business Regulatory Enforcement $100,000,000 (adjusted for inflation) or enforced for short periods of time while Fairness Act of 1996 (Pub. L. 104–121), more in any one year. Though this rule escorted vessels transit through an 18- we want to assist small entities in will not result in such an expenditure, mile stretch of the Lower Mississippi understanding this rule. If the rule we do discuss the effects of this rule River. Other vessel traffic on the river would affect your small business, elsewhere in this preamble. will be able to transit through the outer organization, or governmental 8. Taking of Private Property 250 yards of the security zone with the jurisdiction and you have questions permission of the COTP. Additionally, concerning its provisions or options for This rule will not cause a taking of the security zone location is within the compliance, please contact the person private property or otherwise have New Orleans Harbor Vessel Service listed in the FOR FURTHER INFORMATION taking implications under Executive Area that requires vessels transiting to CONTACT, above. Order 12630, Governmental Actions and check in when entering the area or Small businesses may send comments Interference with Constitutionally when departing berth. This pre-existing on the actions of Federal employees Protected Property Rights. check in requirement will assist in who enforce, or otherwise determine 9. Civil Justice Reform granting early permission for deviation compliance with, Federal regulations to from the rule allowing vessels to pass the Small Business and Agriculture This rule meets applicable standards through the zone. Regulatory Enforcement Ombudsman in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to 2. Impact on Small Entities and the Regional Small Business Regulatory Fairness Boards. The minimize litigation, eliminate The Regulatory Flexibility Act of 1980 Ombudsman evaluates these actions ambiguity, and reduce burden. (RFA), 5 U.S.C. 601–612, as amended, annually and rates each agency’s 10. Protection of Children requires federal agencies to consider the responsiveness to small business. If you potential impact of regulations on small wish to comment on actions by We have analyzed this rule under entities during rulemaking. The term employees of the Coast Guard, call 1– Executive Order 13045, Protection of ‘‘small entities’’ comprises small 888–REG–FAIR (1–888–734–3247). The Children from Environmental Health businesses, not-for-profit organizations Coast Guard will not retaliate against Risks and Safety Risks. This rule is not that are independently owned and small entities that question or complain an economically significant rule and operated and are not dominant in their about this rule or any policy or action does not create an environmental risk to fields, and governmental jurisdictions of the Coast Guard. health or risk to safety that may with populations of less than 50,000. disproportionately affect children. The Coast Guard certifies under 5 4. Collection of Information 11. Indian Tribal Governments U.S.C. 605(b) that this rule will not have This rule will not call for a new a significant economic impact on a collection of information under the This rule does not have tribal substantial number of small entities. Paperwork Reduction Act of 1995 (44 implications under Executive Order This rule will affect the following U.S.C. 3501–3520). 13175, Consultation and Coordination entities, some of which may be small with Indian Tribal Governments, entities: the owners and operators of 5. Federalism because it does not have a substantial vessels intending to transit in the A rule has implications for federalism direct effect on one or more Indian vicinity of mile marker 88.0 through under Executive Order 13132, tribes, on the relationship between the

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Federal Government and Indian tribes, § 165.T08–1078 Moving Security Zone DEPARTMENT OF HOMELAND or on the distribution of power and around escorted vessels on the Lower SECURITY responsibilities between the Federal Mississippi River. Government and Indian tribes. (a) Location. The following areas are Coast Guard 12. Energy Effects security zones: Navigable waters of the Lower Mississippi River, from mile 33 CFR Part 165 This action is not a ‘‘significant marker 88.0 to mile marker 106.0, [Docket Number USCG–2012–1068] energy action’’ under Executive Order extending 300 yards in all directions of 13211, Actions Concerning Regulations escorted vessels. Escorted vessels will RIN 1625–AA00 That Significantly Affect Energy Supply, be escorted by one or more Coast Guard Safety Zones; TEMCO Grain Facilities; Distribution, or Use. assets or other federal, state, or local law Columbia and Willamette Rivers 13. Technical Standards enforcement agency assets clearly identifiable by lights, vessel markings, AGENCY: Coast Guard, DHS. This rule does not use technical or with agency insignia. ACTION: Temporary final rule. standards. Therefore, we did not (b) Effective Period. This rule is SUMMARY: The Coast Guard is consider the use of voluntary consensus effective January 1, 2013 through March standards. establishing temporary safety zones 31, 2013. around the TEMCO grain facilities on 14. Environment (c) Regulations. (1) Under the general the Columbia River in Kalama, WA and regulations in § 165.33 of this part, the Willamette River in Portland, OR. We have analyzed this rule under vessels are prohibited from entering or These safety zones extend to the waters Department of Homeland Security transiting the security zones described of the Columbia and Willamette Rivers, Management Directive 023–01 and in paragraph (a) of this temporary respectively, approximately between the Commandant Instruction M16475.lD, section, § 165.T08–1078. navigable channel and the facility which guide the Coast Guard in (2) If granted permission to enter a described. These safety zones are being complying with the National established to ensure that protest Environmental Policy Act of 1969 security zone, a vessel must operate at the minimum speed necessary to activities relating to a labor dispute (NEPA) (42 U.S.C. 4321–4370f), and involving these facilities do not create have determined that this action is one maintain a safe course, unless required to maintain speed by the Navigation hazardous navigation conditions for of a category of actions that do not vessels in the navigable channel or individually or cumulatively have a Rules, and shall proceed as directed by the Coast Guard. When within the vessels attempting to moor at the significant effect on the human facilities. environment. This rule involves the security zone, no vessel or person is establishment of a moving security zone allowed within 50 yards of the escorted DATES: This rule is effective January 3, around escorted vessels. This rule is vessel unless authorized by the Coast 2013 and has been enforced with actual categorically excluded from further Guard. notice since December 7, 2012 and it review under paragraph 34(g) of Figure (3) Persons or vessels requiring will be enforced until February 4, 2013. 2–1 of the Commandant Instruction. An deviations from this rule must request ADDRESSES: Documents mentioned in environmental analysis checklist permission from the Captain of the Port this preamble are part of docket [USCG– supporting this determination and a New Orleans through the on-scene Coast 2012–1068]. To view documents Categorical Exclusion Determination are Guard or other enforcement agency mentioned in this preamble as being available in the docket where indicated asset, via VHF–FM Ch. 12, VHF–FM Ch. available in the docket, go to http:// under ADDRESSES. We seek any 67, or the Coast Guard Vessel Traffic www.regulations.gov, type the docket comments or information that may lead Center at (504) 365–2330. number in the ‘‘SEARCH’’ box and click to the discovery of a significant (4) All persons and vessels granted ‘‘SEARCH.’’ Click on Open Docket environmental impact from this rule. permission to enter a security zone must Folder on the line associated with this rulemaking. You may also visit the E. List of Subjects in 33 CFR Part 165 comply with the instructions of the Captain of the Port New Orleans and Docket Management Facility in Room Harbors, Marine safety, Navigation designated personnel. Designated W12–140 on the ground floor of the (water), Reporting and recordkeeping personnel include commissioned, Department of Transportation West requirements, Security measures, warrant and petty officers of the U.S. Building, 1200 New Jersey Avenue SE., Waterways. Coast Guard, and local, state, and Washington, DC 20590, between 9 a.m. federal law enforcement officers on and 5 p.m., Monday through Friday, For the reasons discussed in the clearly identified law enforcement except Federal holidays. preamble, the Coast Guard amends 33 agency vessels. FOR FURTHER INFORMATION CONTACT: If CFR part 165 as follows: (d) Informational broadcasts. The you have questions on this rule, call or email Ensign Ian P. McPhillips, PART 165—REGULATED NAVIGATION Captain of the Port or a designated Waterways Management Division, AREAS AND LIMITED ACCESS AREAS representative will inform the public through marine safety information Marine Safety Unit Portland, U.S. Coast Guard; telephone (503) 240–9319, email ■ 1. The authority citation for part 165 bulletins or broadcast notices to [email protected]. If you have continues to read as follows: mariners of the enforcement of the security zone. questions on viewing or submitting Authority: 33 U.S.C. 1231; 46 U.S.C. material to the docket, call Renee V. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; Dated: December 19, 2012. Wright, Program Manager, Docket 33 CFR 1.05–1, 6.06–1, 6.05–6 and 160.5; P.W. Gautier, Operations, telephone (202) 366–9826. Pub. L. 107–295, 116 stat. 2064; Department Captain, U.S. Coast Guard, Captain of the SUPPLEMENTARY INFORMATION: of Homeland Security Delegation No. 0170.1. Port New Orleans. ■ 2. Add temporary § 165.T08–1078 to [FR Doc. 2012–31559 Filed 1–2–13; 8:45 am] Table of Acronyms read as follows: BILLING CODE 9110–04–P DHS Department of Homeland Security

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FR Federal Register intended to ensure that protestors are by Executive Order 13563, Improving NPRM Notice of Proposed Rulemaking not injured due to the effects of the Regulation and Regulatory Review, and A. Regulatory History and Information strong river currents around the does not require an assessment of facilities’ docks, piers, and wharves. potential costs and benefits under The Coast Guard is issuing this final section 6(a)(3) of Executive Order 12866 C. Discussion of the Final Rule rule without prior notice and or under section 1 of Executive Order opportunity to comment pursuant to This rule establishes temporary safety 13563. The Office of Management and authority under section 4(a) of the zones around the TEMCO grain facility Budget has not reviewed it under those Administrative Procedure Act (APA) (5 located on the Columbia River in Orders. Although this rule will restrict U.S.C. 553(b)). This provision Kalama, WA and the TEMCO grain access to the regulated areas, the effect authorizes an agency to issue a rule facility located on the Willamette River of this rule will not be significant without prior notice and opportunity to in Portland, OR. because: (i) The safety zones are limited comment when the agency for good The safety zone around the TEMCO in size; (ii) the official on-scene patrol cause finds that those procedures are grain facility in Kalama, WA is enclosed may authorize access to the safety ‘‘impracticable, unnecessary, or contrary by three lines and the shoreline: line zones; (iii) the safety zones will effect to the public interest.’’ Under 5 U.S.C. one starting on the shoreline at 45– limited geographical locations for a 553(b)(B), the Coast Guard finds that 59′10″ N/122–50′09″ W then heading limited time; and (iv) the Coast Guard good cause exists for not publishing a 150 yards offshore to 45–59′09″ N/122– will make notifications via maritime notice of proposed rulemaking (NPRM) 50′14″ W then heading up river 385 advisories so mariners can adjust their with respect to this rule because to do yards to 45–58′58″ N/122–50′07″ then plans accordingly. so would be impracticable since delayed heading 150 yards to the shoreline promulgation may result in injury or ending at 45–59′00″ N/122–50′01″ W. In 2. Impact on Small Entities damage to the maritime public, vessel essence, these boundaries extend from The Regulatory Flexibility Act of 1980 crews, the vessels themselves, the the shoreline of the facility 150 yards (RFA), 5 U.S.C. 601–612, as amended, facilities, and law enforcement onto the river from each corner of the requires federal agencies to consider the personnel from protest activities that facility and encompass all waters and potential impact of regulations on small could occur prior to conclusion of a structures therein. No person or vessel entities during rulemaking. The term notice and comment period. may enter or remain in the safety zone ‘‘small entities’’ comprises small Under 5 U.S.C. 553(d)(3), the Coast unless authorized by the Sector businesses, not-for-profit organizations Guard finds that good cause exists for Columbia River Captain of the Port or that are independently owned and making this rule effective less than 30 his designated representatives. operated and are not dominant in their days after publication in the Federal The safety zone around the TEMCO fields, and governmental jurisdictions Register because to do otherwise would grain facility in Portland, OR is also with populations of less than 50,000. be impracticable since the arrival of enclosed by three lines and the The Coast Guard certifies under 5 U.S.C. grain-shipment vessels cannot be shoreline: line one starting on the 605(b) that this rule will not have a delayed by the Coast Guard and protest shoreline at 45–32′10″ N/122–40′34″ W significant economic impact on a activities are unpredictable and then heading 150 yards offshore to 45– substantial number of small entities. potentially volatile and may result in 32′09″ N/122–40′39″ W then heading up This rule will not have a significant injury to persons, property, or the river 275 yards to 45–32′01″ N/122– economic impact on a substantial environment. Delaying the effective date 40′33″ then heading 150 yards to the number of small entities for the until 30 days after publication may shoreline ending at 45–32′04″ N/122– following reasons: (i) The safety zones mean that grain-shipment vessels 40′28″ W. In essence, these boundaries are limited in size; (ii) the official on- calling on the Columbia Grain or United extend from the shoreline of the facility scene patrol may authorize access to the Grain Corporation facilities will have 150 yards onto the river from each safety zones; (iii) the safety zones will arrived and/or departed before the end corner of the facility and encompass all effect limited geographical locations for of a 30-day period. This delay would waters and structures therein. No person a limited time; and (iv) the Coast Guard eliminate the safety zones’ effectiveness or vessel may enter or remain in the will make notifications via maritime and usefulness in protecting persons, safety zone unless authorized by the advisories so mariners can adjust their property, and the safe navigation of Sector Columbia River Captain of the plans accordingly. maritime traffic during the 30-day Port or his designated representatives. 3. Assistance for Small Entities period. This rule has been enforced with Under section 213(a) of the Small B. Basis and Purpose actual notice since December 7, 2012 and it will be enforced until 30 days Business Regulatory Enforcement These safety zones are being from date of publication in the Federal Fairness Act of 1996 (Pub. L. 104–121), implemented to help ensure the safe Register. we want to assist small entities in navigation of maritime traffic on the understanding this rule. If the rule Columbia and Willamette Rivers while D. Regulatory Analyses would affect your small business, grain-shipment vessels transit to and We developed this rule after organization, or governmental from the TEMCO grain facilities. These considering numerous statutes and jurisdiction and you have questions safety zones apply equally to all executive orders related to rulemaking. concerning its provisions or options for waterway users and are intended to Below we summarize our analyses compliance, please contact the person allow maximum use of the waterway based on these statutes and executive listed in the FOR FURTHER INFORMATION consistent with safe navigation and to orders. CONTACT, above. ensure that protestors and other river Small businesses may send comments users are not injured by deep-draft 1. Regulatory Planning and Review on the actions of Federal employees vessels with maneuvering This rule is not a significant who enforce, or otherwise determine characteristics with which they may be regulatory action under section 3(f) of compliance with, Federal regulations to unfamiliar. In addition, these safety Executive Order 12866, Regulatory the Small Business and Agriculture zones around the grain facilities are Planning and Review, as supplemented Regulatory Enforcement Ombudsman

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and the Regional Small Business Irving Facility from the shoreline at 45– 12. Energy Effects Regulatory Fairness Boards. The 32′10″ N/122–40′34″ W a line heading Ombudsman evaluates these actions offshore 150 yards to 45–32′09″ N/122– This action is not a ‘‘significant annually and rates each agency’s 40′39″ W then heading up river 275 energy action’’ under Executive Order responsiveness to small business. If you yards to 45–32′01″ N/122–40′33″ then 13211, Actions Concerning Regulations wish to comment on actions by heading to the shoreline, ending at 45– That Significantly Affect Energy Supply, employees of the Coast Guard, call 1– 32′04″ N/122–40′28″ W. Distribution, or Use. 888–REG–FAIR (1–888–734–3247). The Protesters are asked to contact the 13. Technical Standards Coast Guard will not retaliate against person listed in the FOR FURTHER small entities that question or complain INTFORMATION CONTACT section to This rule does not use technical about this rule or any policy or action coordinate protest activities so that your standards. Therefore, we did not of the Coast Guard. message can be received without consider the use of voluntary consensus 4. Collection of Information jeopardizing the safety or security of standards. This rule will not call for a new people, places or vessels. 14. Environment collection of information under the 7. Unfunded Mandates Reform Act Paperwork Reduction Act of 1995 (44 We have analyzed this rule under U.S.C. 3501–3520). The Unfunded Mandates Reform Act Department of Homeland Security of 1995 (2 U.S.C. 1531–1538) requires Management Directive 023–01 and 5. Federalism Federal agencies to assess the effects of Commandant Instruction M16475.lD, A rule has implications for federalism their discretionary regulatory actions. In which guide the Coast Guard in under Executive Order 13132, particular, the Act addresses actions complying with the National Federalism, if it has a substantial direct that may result in the expenditure by a Environmental Policy Act of 1969 effect on State or local governments and State, local, or tribal government, in the (NEPA) (42 U.S.C. 4321–4370f), and would either preempt State law or aggregate, or by the private sector of have determined that this action is one impose a substantial direct cost of $100,000,000 (adjusted for inflation) or of a category of actions that do not compliance on them. more in any one year. Though this rule individually or cumulatively have a We believe that this rule and the will not result in such an expenditure, significant effect on the human process by which it was drafted adhere we do discuss the effects of this rule environment. This rule involves the to the federalism principles outlined in elsewhere in this preamble. establishment of temporary safety zones Executive Order 13132. The Coast around the Columbia Grain facility on Guard has coordinated with the officials 8. Taking of Private Property the Willamette River in Portland, OR from the states of Oregon and This rule will not cause a taking of and the United Grain Corporation Washington in drafting this rule. By private property or otherwise have facility on the Columbia River in allowing state enforcement of this rule, taking implications under Executive Vancouver, WA. This rule is it is in accord with paragraph (h) of Order 12630, Governmental Actions and categorically excluded from further section 2 of the Executive Order, which Interference with Constitutionally review under paragraph 34(g) of Figure encourages recognition of responsibility Protected Property Rights. 2–1 of the Commandant Instruction. An of localities and their sub-units to environmental analysis checklist pursue objectives through their own 9. Civil Justice Reform supporting this determination and a Categorical Exclusion Determination are means. This rule puts no obligation on This rule meets applicable standards available in the docket where indicated state or municipal governments, but in sections 3(a) and 3(b)(2) of Executive under ADDRESSES. We seek any simply allows for their participation in Order 12988, Civil Justice Reform, to comments or information that may lead enforcement activities. minimize litigation, eliminate to the discovery of a significant ambiguity, and reduce burden. 6. Protest Activities environmental impact from this rule. The Coast Guard respects the First 10. Protection of Children Amendment rights of protesters. In List of Subjects in 33 CFR Part 165 We have analyzed this rule under preparing this temporary rule, the Coast Harbors, Marine safety, Navigation Guard carefully considered the rights of Executive Order 13045, Protection of Children from Environmental Health (water), Reporting and recordkeeping lawful protestors. The safety zones requirements, Waterways. created by this rule do not prohibit Risks and Safety Risks. This rule is not members of the public from assembling an economically significant rule and For the reasons discussed in the on shore or expressing their points of does not create an environmental risk to preamble, the Coast Guard amends 33 view from locations on shore. In health or risk to safety that may CFR part 165 as follows: addition, the Captain of the Port has disproportionately affect children. PART 165—REGULATED NAVIGATION identified waters adjacent to this safety 11. Indian Tribal Governments zone where those desiring to do so can AREAS AND LIMITED ACCESS AREAS assemble and express their views This rule does not have tribal without compromising the safety implications under Executive Order ■ 1. The authority citation for part 165 navigational safety. These suggested 13175, Consultation and Coordination continues to read as follows: protest areas are as follows: TEMCO with Indian Tribal Governments, Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Kalama Facility from the shoreline at because it does not have a substantial Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 45–59′10″ N/122–50′09″ W a line direct effect on one or more Indian 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; heading offshore 150 yards to 45–59′09″ tribes, on the relationship between the Pub. L. 107–295, 116 Stat. 2064; Department N/122–50′14″ W then heading up river Federal Government and Indian tribes, of Homeland Security Delegation No. 0170.1. 350 yards to 45–58′58″ N/122–50′07″ W or on the distribution of power and then heading to the shoreline, ending at responsibilities between the Federal ■ 2. Add § 165.T13.237 to read as 45–59′00″ N/122–50′01″ W. TEMCO Government and Indian tribes. follows:

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§ 165.T13.237 Safety Zones; TEMCO Grain from December 7, 2012 and will be Law Enforcement Officer, Oregon Law Facilities; Columbia and Willamette Rivers. enforced until 30 days from date of Enforcement Officer, or Washington (a) Definitions. As used in this publication in the Federal Register. Law Enforcement Officer may enforce section: They will be activated for enforcement the rules contained in this section (1) Federal Law Enforcement Officer as described in paragraph (d) of this pursuant to 46 U.S.C. 70118. In means any employee or agent of the section. addition, the Captain of the Port may be United States government who has the (d) Enforcement periods. (1) The assisted by other federal, state, or local authority to carry firearms and make Sector Columbia River Captain of the agencies in enforcing this section. warrantless arrests and whose duties Port will cause notice of the (h) Waiver. The Sector Columbia involve the enforcement of criminal enforcement of these safety zones to be River Captain of the Port may waive any laws of the United States. made by all appropriate means to effect of the requirements of this section for (2) Navigable waters of the United the widest publicity among the affected any vessel or class of vessels upon States means those waters defined as segments of the public as practicable, in finding that operational conditions or such in 33 CFR part 2. accordance with 33 CFR 165.7. Such other circumstances are such that (3) Navigation Rules means the means of notification may include, but application of this section is Navigation Rules, International-Inland. are not limited to, Broadcast Notices to unnecessary or impractical for the (4) Official Patrol means those Mariners or Local Notices to Mariners. purpose of port safety or environmental persons designated by the Captain of the The Sector Columbia River Captain of safety. Port to monitor a safety zone, permit the Port will issue a Broadcast Notice to entry into the zone, give legally Mariners and Local Notice to Mariners Dated: December 7, 2012. enforceable orders to persons or vessels notifying the public when enforcement B.C. Jones, within the zone and take other actions of these safety zones is suspended. Captain, U.S. Coast Guard, Captain of the authorized by the Captain of the Port. (2) Upon notice of enforcement by the Port, Sector Columbia River. Federal Law Enforcement Officers Sector Columbia River Captain of the [FR Doc. 2012–31561 Filed 1–2–13; 8:45 am] authorized to enforce this section are Port the Coast Guard will enforce these BILLING CODE 9110–04–P designated as the Official Patrol. safety zones in accordance with rules (5) Public vessel means vessels set out in this section. Upon notice of owned, chartered, or operated by the suspension of enforcement by the Sector FEDERAL COMMUNICATIONS United States, or by a State or political Columbia River Captain of the Port, all COMMISSION subdivision thereof. persons and vessels are authorized to (6) Oregon Law Enforcement Officer enter, transit, and exit the safety zones, 47 CFR Part 73 means any Oregon Peace Officer as consistent with the Navigation Rules. defined in Oregon Revised Statutes (e) Regulation. (1) In accordance with [MB Docket No. 12–270; RM–11676; DA 12– 2024] section 161.015. the general regulations in § 165.23 of (7) Washington Law Enforcement this part, entry into or movement within Radio Broadcasting Services; Officer means any General Authority these zones is prohibited unless Maysville, GA Washington Peace Officer, Limited authorized by the Sector Columbia River Authority Washington Peace Officer, or Captain of the Port, the official patrol, AGENCY: Federal Communications Specially Commissioned Washington or other designated representatives of Commission. Peace Officer as defined in Revised the Captain of the Port. ACTION: Final rule. Code of Washington section 10.93.020. (2) To request authorization to enter (b) Locations. The following areas are or operate within these safety zones SUMMARY: The Audio Division, at the safety zones: contact the on-scene official patrol on request of Appalachian Broadcasting (1) TEMCO Kalama: All navigable VHF–FM channel 16 or 13. Company, Inc., allots Channel 265A at waters of the United States within the Authorization will be granted based on Maysville, Georgia, as the community’s Sector Columbia River Captain of the the necessity of access and consistent second local service. A staff engineering Port Zone enclosed by three lines and with safe navigation. analysis confirms that Channel 265A the shoreline: Line one starting on the (3) Vessels authorized to enter or can be allotted to Maysville consistent shoreline at 45–59′10″ N/122–50′09″ W operate within these safety zones shall with the minimum distance separation then heading 150 yards offshore to 45– operate at the minimum speed requirements of the Rules with a site 59′09″ N/122–50′14″ W then heading up necessary to maintain a safe course and restriction 13.4 kilometers (8.3 miles) river 385 yards to 45–58′58″ N/122– shall proceed as directed by the on- northwest of the community. The 50′07″ then heading 150 yards to the scene official patrol. The Navigation reference coordinates for Channel 265A shoreline ending at 45–59′00″ N/122– Rules shall apply at all times within the at Maysville are 34–20–16 NL and 83– 50′01″ W. safety zones. 39–52 WL. (2) TEMCO Portland: All navigable (f) Exemption. Public vessels as DATES: Effective January 27, 2013. waters of the United States within the defined in paragraph (a) of this section ADDRESSES: Secretary, Federal Sector Columbia River Captain of the are exempt from complying with Communications Commission, 445 12th Port Zone enclosed by three lines and paragraph (e) of this section. Street SW., Washington, DC 20554. the shoreline: Line one starting on the (g) Enforcement. Any Coast Guard shoreline at 45–32′10″ N/122–40′34″ W commissioned, warrant, or petty officer FOR FURTHER INFORMATION CONTACT: then heading 150 yards offshore to 45– may enforce the rules in this section. In Rolanda F. Smith, Media Bureau, (202) 32′09″ N/122–40′39″ W then heading up the navigable waters of the United 418–2700. river 275 yards to 45–32′01″ N/122– States to which this section applies, SUPPLEMENTARY INFORMATION: This is a 40′33″ then heading 150 yards to the when immediate action is required and synopsis of the Commission’s Report shoreline ending at 45–32′04″ N/122– representatives of the Coast Guard are and Order, adopted December 13, 2012, 40′28″ W. not present or are not present in and released December 14, 2012. The (c) Effective period. The safety zones sufficient force to provide effective full text of this Commission decision is created in this section will be in effect enforcement of this section, any Federal available for inspection and copying

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during normal business hours in the ACTION: Temporary rule; inseason information (e.g., name, address, etc.), FCC’s Reference Information Center at adjustment; request for comments. confidential business information, or Portals II, CY–A257, 445 12th SW., otherwise sensitive information Washington, DC 20554. This document SUMMARY: NMFS is adjusting the 2013 submitted voluntarily by the sender will may also be purchased from the total allowable catch (TAC) amounts for be publicly accessible. NMFS will Commission’s duplicating contractors, the Gulf of Alaska (GOA) pollock and accept anonymous comments (enter Best Copy and Printing, Inc., 445 12th Pacific cod fisheries. This action is ‘‘N/A’’ in the required fields if you wish Street SW., Room CY–B402, necessary because NMFS has to remain anonymous). Attachments to Washington, DC 20554, telephone 1– determined these TACs are incorrectly electronic comments will be accepted in 800–378–3160 or via email specified, and will ensure the GOA Microsoft Word, Excel, or Adobe PDF www.BCPIWEB.com. This document pollock and Pacific cod TACs are the file formats only. appropriate amounts based on the best does not contain proposed information available scientific information for FOR FURTHER INFORMATION CONTACT: Josh collection requirements subject to the pollock and Pacific cod in the GOA. Keaton, 907–586–7228. Paperwork Reduction Act of 1995, This action is consistent with the goals SUPPLEMENTARY INFORMATION: NMFS Public Law 104–13. The Commission and objectives of the Fishery manages the groundfish fishery in the will send a copy of this Report and Management Plan for Groundfish of the GOA exclusive economic zone Order in a report to be sent to Congress Gulf of Alaska. according to the Fishery Management and the Government Accountability DATES: Effective 1200 hrs, Alaska local Plan for Groundfish of the Gulf of Office pursuant to the Congressional Alaska (FMP) prepared by the North Review Act, see 5 U.S.C. 801(a)(1)(A). time (A.l.t.), December 28, 2012, until the effective date of the final 2013 and Pacific Fishery Management Council List of Subjects in 47 CFR Part 73 2014 harvest specifications for GOA (Council) under authority of the Magnuson-Stevens Fishery Radio, Radio broadcasting. groundfish, unless otherwise modified or superseded through publication of a Conservation and Management Act. Federal Communications Commission. notification in the Federal Register. Regulations governing fishing by U.S. Nazifa Sawez, Comments must be received at the vessels in accordance with the FMP Assistant Chief, Audio Division, Media following address no later than 4:30 appear at subpart H of 50 CFR part 600 Bureau. p.m., A.l.t., January 18, 2013. and 50 CFR part 679. For the reasons discussed in the ADDRESSES: You may submit comments The final 2012 and 2013 harvest preamble, the Federal Communications on this document, identified by FDMS specifications for groundfish in the GOA Commission amends 47 CFR part 73 as Docket Number NOAA–NMFS–2012– (77 FR 15194, March 14, 2012) set the follows: 0252 by any of the following methods: 2013 pollock TAC at 125,334 metric • Electronic Submission: Submit all tons (mt) and the 2013 Pacific cod TAC PART 73—RADIO BROADCAST electronic public comments via the at 68,250 mt in the GOA. In December SERVICES Federal e-Rulemaking Portal. Go to 2012, the North Pacific Fishery www.regulations.gov/ Management Council (Council) ■ 1. The authority citation for part 73 #!docketDetail;D=NOAA-NMFS-2012- recommended a 2013 pollock TAC of continues to read as follows: 0252, click the ‘‘Comment Now!’’ icon, 121,046 mt for the GOA, which is less Authority: 47 U.S.C. 154, 303, 334, 336 complete the required fields, and enter than the 125,334 mt established by the and 339. or attach your comments. final 2012 and 2013 harvest • specifications for groundfish in the § 73.202 [Amended] Mail: Address written comments to Glenn Merrill, Assistant Regional GOA. The Council also recommended a ■ 2. Section 73.202(b), the Table of FM Administrator, Sustainable Fisheries 2013 Pacific cod TAC of 60,600 mt for Allotments under Georgia, is amended Division, Alaska Region NMFS, Attn: the GOA, which is less than the 68,250 by adding Channel 265A at Maysville. Ellen Sebastian. Mail comments to P.O. mt established by the final 2012 and [FR Doc. 2012–31563 Filed 1–2–13; 8:45 am] Box 21668, Juneau, AK 99802–1668. 2013 harvest specifications for BILLING CODE 6712–01–P • Fax: Address written comments to groundfish in the GOA. The Council’s Glenn Merrill, Assistant Regional recommended 2013 TACs, and the area Administrator, Sustainable Fisheries and seasonal apportionments, are based on the Stock Assessment and Fishery DEPARTMENT OF COMMERCE Division, Alaska Region NMFS, Attn: Ellen Sebastian. Fax comments to 907– Evaluation report (SAFE), dated National Oceanic and Atmospheric 586–7557. November 2012, which NMFS has • Administration Hand delivery to the Federal determined is the best available Building: Address written comments to scientific information for these fisheries. 50 CFR Part 679 Glenn Merrill, Assistant Regional Steller sea lions occur in the same Administrator, Sustainable Fisheries location as the pollock and Pacific cod [Docket No. 111207737–2141–02] Division, Alaska Region NMFS, Attn: fisheries and are listed as endangered Ellen Sebastian. Deliver comments to under the Endangered Species Act RIN 0648–XC422 709 West 9th Street, Room 420A, (ESA). Pollock and Pacific cod are a Fisheries of the Exclusive Economic Juneau, AK. principal prey species for Steller sea Zone Off Alaska; Inseason Adjustment Instructions: Comments sent by any lions in the GOA. The seasonal to the 2013 Gulf of Alaska Pollock and other method, to any other address or apportionment of pollock and Pacific Pacific Cod Total Allowable Catch individual, or received after the end of cod harvest is necessary to ensure the Amounts the comment period, may not be groundfish fisheries are not likely to considered by NMFS. All comments cause jeopardy of extinction or adverse AGENCY: National Marine Fisheries received are a part of the public record modification of critical habitat for Service (NMFS), National Oceanic and and will generally be posted for public Steller sea lions. The regulations at Atmospheric Administration (NOAA), viewing on www.regulations.gov § 679.20(a)(5)(iv) specify how the Commerce. without change. All personal identifying pollock TAC will be apportioned. The

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regulations at § 679.20(a)(6)(ii) and pollock and Pacific cod TACs are (77 FR 15194, March 14, 2012) is § 679.20(a)(12)(i) specify how the Pacific incorrectly specified. Consequently, revised consistent with this adjustment. cod TAC will be apportioned. pursuant to § 679.25(a)(1)(iii), the Pursuant to § 679.20(a)(5)(iv), Table 4 In accordance with § 679.25(a)(1)(iii) Regional Administrator is adjusting the of the final 2012 and 2013 harvest and (a)(2)(i)(B), the Administrator, 2013 GOA pollock TAC to 121,046 mt specifications for groundfish in the GOA Alaska Region, NMFS (Regional and the 2013 GOA Pacific cod TAC to (77 FR 15194, March 14, 2012) is Administrator), has determined that, 60,600 mt. Therefore, Table 2 of the revised for the 2013 TACs of pollock in based on the November 2012 SAFE final 2012 and 2013 harvest the Central and Western Regulatory report for this fishery, the current GOA specifications for groundfish in the GOA Area of the GOA.

Pursuant to § 679.20(a)(6)(ii) and depending on the annual performance sector harvested greater than 90 percent § 679.20(a)(12)(i), Table 6 of the final of the jig sector. NMFS has proposed of its initial 2012 allocation in the 2012 and 2013 harvest specifications for increasing the jig sector’s Pacific cod Central GOA. Therefore, as described in groundfish in the GOA (77 FR 15194, allocation in the Western GOA to 2.5 the proposed 2013 and 2014 harvest March 14, 2012) is revised for the 2013 percent of the annual Pacific cod TAC. specifications for the GOA (December 5, seasonal apportionments and allocation This includes a base allocation of 1.5 2012, 77 FR 72297), the final 2013 and of Pacific cod TAC in the GOA percent and an additional 1.0 percent 2014 Pacific cod sector allocations may consistent with this adjustment. because this sector harvested greater be adjusted to incorporate the increased The proposed 2013 and 2014 harvest than 90 percent of its initial 2012 allocation to the jig sector. The specifications for groundfish of the GOA allocation in the Western GOA. NMFS proposed increased percentage were published in the Federal Register also has proposed increasing the jig allocations to the jig sectors in the on December 5, 2012 (77 FR 72297). In sector’s Pacific cod allocation in the accordance with the FMP, the annual jig Central GOA to 2.0 percent of the Western and Central GOA are not sector allocations may increase to up to annual Pacific cod TAC. This includes included in the following table. 6 percent of the annual Western and a base allocation of 1.0 percent and an BILLING CODE 3510–22–P Central GOA Pacific cod TACs additional 1.0 percent because this

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BILLING CODE 3510–22–C requirement to provide prior notice and responding to the most recent fisheries Classification opportunity for public comment data in a timely fashion and would pursuant to the authority set forth at 5 allow for harvests that exceed the This action responds to the best U.S.C. 553(b)(B) as such requirement is appropriate allocations for Pacific cod available information recently obtained impracticable and contrary to the public based on the best scientific information from the fishery. The Assistant interest. This requirement is available. NMFS was unable to publish Administrator for Fisheries, NOAA impracticable and contrary to the public a notice providing time for public (AA), finds good cause to waive the interest as it would prevent NMFS from comment because the most recent,

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relevant data only became available as DATES: Effective 1200 hrs, Alaska local Plan for Groundfish of the Bering Sea of December 27, 2012, and additional time (A.l.t.), December 28, 2012, until and Aleutian Islands Management Area time for prior public comment would the effective date of the final 2013 and (FMP) prepared by the North Pacific result in conservation concerns for the 2014 harvest specifications for BSAI Fishery Management Council under ESA-listed Steller sea lions. groundfish, unless otherwise modified authority of the Magnuson-Stevens The AA also finds good cause to or superseded through publication of a Fishery Conservation and Management waive the 30-day delay in the effective notification in the Federal Register. Act. Regulations governing fishing by date of this action under 5 U.S.C. Comments must be received at the U.S. vessels in accordance with the FMP 553(d)(3). This finding is based upon following address no later than 4:30 appear at subpart H of 50 CFR part 600 the reasons provided above for waiver of p.m., A.l.t., January 18, 2013. and 50 CFR part 679. prior notice and opportunity for public ADDRESSES: You may submit comments The final 2012 and 2013 harvest comment. on this document, identified by FDMS specifications for groundfish in the Under § 679.25(c)(2), interested Docket Number NOAA-NMFS-2012- BSAI (77 FR 10669, February 23, 2012) persons are invited to submit written 0253 by any of the following methods: set the 2013 BSAI pollock TAC at comments on this action to the above • Electronic Submission: Submit all 1,220,900 metric tons (mt), the 2013 address until January 18, 2013. electronic public comments via the BSAI Atka mackerel TAC at 42,083 mt, This action is required by § 679.20 Federal e-Rulemaking Portal. Go to and the 2013 BSAI Pacific cod TAC at and § 679.25 and is exempt from review www.regulations.gov/ 262,900 mt. In December 2012, the under Executive Order 12866. #!docketDetail;D=NOAA-NMFS-2012- North Pacific Fishery Management Council (Council) recommended a 2013 Authority: 16 U.S.C. 1801 et seq. 0253, click the ‘‘Comment Now!’’ icon, complete the required fields, and enter BSAI pollock TAC of 1,266,100 mt, Dated: December 28, 2012. or attach your comments. which is more than the 1,220,900 mt Lindsay Fullenkamp, • Mail: Address written comments to TAC established by the final 2012 and Acting Deputy Director, Office of Sustainable Glenn Merrill, Assistant Regional 2013 harvest specifications for Fisheries, National Marine Fisheries Service. Administrator, Sustainable Fisheries groundfish in the BSAI. The Council [FR Doc. 2012–31627 Filed 12–28–12; 4:15 pm] Division, Alaska Region NMFS, Attn: also recommended a 2013 BSAI Atka BILLING CODE 3510–22–P Ellen Sebastian. Mail comments to P.O. mackerel TAC of 25,920 mt, which is Box 21668, Juneau, AK 99802–1668. less than the 42,083 mt TAC established • Fax: Address written comments to by the final 2012 and 2013 harvest DEPARTMENT OF COMMERCE Glenn Merrill, Assistant Regional specifications for groundfish in the Administrator, Sustainable Fisheries BSAI. Furthermore, the Council National Oceanic and Atmospheric Division, Alaska Region NMFS, Attn: recommended a 2013 BSAI Pacific cod Administration Ellen Sebastian. Fax comments to 907– TAC of 260,000 mt, which is less than 586–7557. the 262,900 mt TAC established by the 50 CFR Part 679 • Hand delivery to the Federal final 2012 and 2013 harvest specifications for groundfish in the [Docket No. 111207737–2141–02] Building: Address written comments to Glenn Merrill, Assistant Regional BSAI. The Council’s recommended 2013 RIN 0648–XC423 Administrator, Sustainable Fisheries TACs, and the area and seasonal Division, Alaska Region NMFS, Attn: apportionments, are based on the Stock Fisheries of the Exclusive Economic Ellen Sebastian. Deliver comments to Assessment and Fishery Evaluation Zone Off Alaska; Inseason Adjustment 709 West 9th Street, Room 420A, report (SAFE), dated November 2012, to the 2013 Bering Sea and Aleutian Juneau, AK. which NMFS has determined is the best Islands Pollock, Atka Mackerel, and Instructions: Comments sent by any available scientific information for these Pacific Cod Total Allowable Catch other method, to any other address or fisheries. Steller sea lions occur in the same Amounts individual, or received after the end of location as the pollock, Atka mackerel, the comment period, may not be AGENCY: National Marine Fisheries and Pacific cod fisheries and are listed considered by NMFS. All comments Service (NMFS), National Oceanic and as endangered under the Endangered received are a part of the public record Atmospheric Administration (NOAA), Species Act (ESA). Pollock, Atka and will generally be posted for public Commerce. mackerel, and Pacific cod are a viewing on www.regulations.gov ACTION: principal prey species for Steller sea Temporary rule; inseason without change. All personal identifying lions in the BSAI. The seasonal adjustment; request for comments. information (e.g., name, address, etc.), apportionment of pollock, Atka confidential business information, or SUMMARY: NMFS is adjusting the 2013 mackerel, and Pacific cod harvest is total allowable catch (TAC) amounts for otherwise sensitive information necessary to ensure the groundfish the Bering Sea and Aleutian Islands submitted voluntarily by the sender will fisheries are not likely to cause jeopardy (BSAI) pollock, Atka mackerel, and be publicly accessible. NMFS will of extinction or adverse modification of Pacific cod fisheries. This action is accept anonymous comments (enter critical habitat for Steller sea lions. The necessary because NMFS has ‘‘N/A’’ in the required fields if you wish regulations at § 679.20(a)(5) specify how determined these TACs are incorrectly to remain anonymous). Attachments to the BS pollock TAC will be specified, and will ensure the BSAI electronic comments will be accepted in apportioned. The regulations at pollock, Atka mackerel, and Pacific cod Microsoft Word, Excel, or Adobe PDF § 679.20(a)(7) specify how the BSAI TACs are the appropriate amounts based file formats only. Pacific cod TAC will be apportioned. on the best available scientific FOR FURTHER INFORMATION CONTACT: Josh The regulations at § 679.20(a)(8) specify information. This action is consistent Keaton, 907–586–7228. how the BSAI Atka mackerel TAC will with the goals and objectives of the SUPPLEMENTARY INFORMATION: NMFS be apportioned. Fishery Management Plan for manages the groundfish fishery in the In accordance with § 679.25(a)(1)(iii), Groundfish of the Bering Sea and BSAI exclusive economic zone (a)(2)(i)(B), and (a)(2)(iv), the Aleutian Islands Management Area. according to the Fishery Management Administrator, Alaska Region, NMFS

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(Regional Administrator), has to 25,920 and the 2013 BSAI Pacific cod specifications for groundfish in the determined that, based on the November TAC to 260,000 mt. Therefore, Table 1 BSAI (77 FR 10669, February 23, 2012) 2012 SAFE report for this fishery, the of the final 2012 and 2013 harvest and reallocation (77 FR 12214, February current BSAI pollock, Atka mackerel, specifications for groundfish in the 29, 2012) is revised for the 2013 BSAI and Pacific cod TACs are incorrectly BSAI (77 FR 10669, February 23, 2012) allocations of pollock TAC to the specified. Pursuant to § 679.25(a)(1)(iii), is revised consistent with this directed pollock fisheries and to the the Regional Administrator is adjusting adjustment. Community Development Quota (CDQ) the 2013 BSAI pollock TAC to 1,266,100 Pursuant to § 679.20(a)(5)(i), Table 3 directed fishing allowances consistent mt, the 2013 BSAI Atka mackerel TAC of the final 2012 and 2013 harvest with this adjustment.

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BILLING CODE 3510–22–P BSAI (77 FR 10669, February 23, 2012) CDQ reserve, incidental catch Pursuant to § 679.20(a)(8), Table 4 of and reallocation (77 FR 61300, October allowance, and Amendment 80 the final 2012 and 2013 harvest 9, 2012) is revised for the 2013 seasonal allocation of the BSAI Atka mackerel specifications for groundfish in the and spatial allowances, gear shares, TAC.

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Pursuant to § 679.20(a)(7), Table 5b of BSAI (77 FR 10669, February 23, 2012) cod TAC consistent with this the final 2012 and 2013 harvest is revised for the 2013 gear shares and adjustment. specifications for groundfish in the seasonal allowances of the BSAI Pacific

BILLING CODE 3510–22–C opportunity for public comment allow for harvests that exceed the Classification pursuant to the authority set forth at 5 appropriate allocations for pollock, Atka U.S.C. 553(b)(B) as such requirement is mackerel, and Pacific cod in the BSAI This action responds to the best impracticable and contrary to the public based on the best scientific information available information recently obtained interest. This requirement is available. NMFS was unable to publish from the fishery. The Assistant impracticable and contrary to the public a notice providing time for public Administrator for Fisheries, NOAA interest as it would prevent NMFS from comment because the most recent, (AA), finds good cause to waive the responding to the most recent fisheries relevant data only became available as requirement to provide prior notice and data in a timely fashion and would of December 26, 2012, and additional

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time for prior public comment would prior notice and opportunity for public Authority: 16 U.S.C. 1801 et seq. result in conservation concerns for the comment. Dated: December 28, 2012. ESA-listed Steller sea lions. Under § 679.25(c)(2), interested persons are invited to submit written Lindsay Fullenkamp, The AA also finds good cause to comments on this action to the above Acting Deputy Director, Office of Sustainable waive the 30-day delay in the effective address until January 18, 2013. Fisheries, National Marine Fisheries Service. date of this action under 5 U.S.C. This action is required by § 679.20 [FR Doc. 2012–31635 Filed 12–28–12; 4:15 pm] 553(d)(3). This finding is based upon and § 679.25 and is exempt from review BILLING CODE 3510–22–P the reasons provided above for waiver of under Executive Order 12866.

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Proposed Rules Federal Register Vol. 78, No. 2

Thursday, January 3, 2013

This section of the FEDERAL REGISTER and 5 p.m., Monday through Friday, substantive verbal contact we receive contains notices to the public of the proposed except Federal holidays. about this proposed AD. issuance of rules and regulations. The For service information identified in Discussion purpose of these notices is to give interested this proposed AD, contact REIMS persons an opportunity to participate in the rule making prior to the adoption of the final Aviation Industries, Ae´rodrome de The European Aviation Safety Agency rules. Reims Prunay, 51360 Prunay, France; (EASA), which is the Technical Agent telephone: 03.26.48.46.65; fax: for the Member States of the European 03.26.49.18.57; Internet: http:// Community, has issued AD No. 2012– DEPARTMENT OF TRANSPORTATION www.geciaviation.com/en/. You may 0164, dated August 28, 2012 (referred to review copies of the referenced service after this as ‘‘the MCAI’’), to correct an Federal Aviation Administration information at the FAA, Small Airplane unsafe condition for the specified Directorate, 901 Locust, Kansas City, products. The MCAI states: 14 CFR Part 39 Missouri 64106. For information on the During maintenance, fretting has been [Docket No. FAA–2012–1346; Directorate availability of this material at the FAA, found between the elevator pushrod Identifier 2012–CE–047–AD] call (816) 329–4148. assembly and horizontal tail structure on Reims F406 aeroplanes. In addition, bending RIN 2120–AA64 Examining the AD Docket was found on a pushrod assembly Part You may examine the AD docket on Number (P/N) 6015034–1. The investigation Airworthiness Directives; REIMS has not yet established the exact cause(s) of Aviation S.A. Airplanes the Internet at http:// www.regulations.gov; or in person at the these occurrences. This condition, if not detected and AGENCY: Federal Aviation Docket Management Facility between 9 corrected, could lead to failure of a pushrod Administration (FAA), Department of a.m. and 5 p.m., Monday through and consequent jamming of the elevator Transportation (DOT). Friday, except Federal holidays. The AD controls, possibly resulting in loss of control ACTION: Notice of proposed rulemaking docket contains this proposed AD, the of the aeroplane. (NPRM). regulatory evaluation, any comments For the reasons described above, this AD received, and other information. The requires inspection of the pushrods and SUMMARY: We propose to adopt a new street address for the Docket Office horizontal tail structure to detect fretting, airworthiness directive (AD) for REIMS (telephone (800) 647–5527) is in the bending or eccentricity and, depending on findings, replacement with a serviceable AVIATION S.A. Model F406 airplanes. ADDRESSES section. Comments will be pushrod, or repair. This AD also requires the This proposed AD results from available in the AD docket shortly after mandatory continuing airworthiness return on replaced pushrods to RAI for receipt. investigation. information (MCAI) originated by an FOR FURTHER INFORMATION CONTACT: This AD is considered to be an interim aviation authority of another country to Albert Mercado, Aerospace Engineer, action and further AD action may follow. identify and correct an unsafe condition FAA, Small Airplane Directorate, 901 on an aviation product. The MCAI You may obtain further information Locust, Room 301, Kansas City, describes the unsafe condition as by examining the MCAI in the AD Missouri 64106; telephone: (816) 329– fretting (wear and/or chafing) found docket. 4119; fax: (816) 329–4090; email: between the elevator pushrod assembly [email protected]. Relevant Service Information and horizontal tail structure, which could cause the elevator pushrod to jam SUPPLEMENTARY INFORMATION: REIMS Aviation Industries has issued and could result in loss of control. We Service Bulletin No. F406–70, dated Comments Invited are issuing this proposed AD to require July 16, 2012. The actions described in actions to address the unsafe condition We invite you to send any written this service information are intended to on these products. relevant data, views, or arguments about correct the unsafe condition identified DATES: We must receive comments on this proposed AD. Send your comments in the MCAI. to an address listed under the this proposed AD by February 19, 2013. FAA’s Determination and Requirements ADDRESSES section. Include ‘‘Docket No. ADDRESSES: You may send comments by of the Proposed AD any of the following methods: FAA–2012–1346; Directorate Identifier • Federal eRulemaking Portal: Go to 2012–CE–047–AD’’ at the beginning of This product has been approved by http://www.regulations.gov. Follow the your comments. We specifically invite the aviation authority of another instructions for submitting comments. comments on the overall regulatory, country, and is approved for operation • Fax: (202) 493–2251. economic, environmental, and energy in the United States. Pursuant to our • Mail: U.S. Department of aspects of this proposed AD. We will bilateral agreement with this State of Transportation, Docket Operations, M– consider all comments received by the Design Authority, they have notified us 30, West Building Ground Floor, Room closing date and may amend this of the unsafe condition described in the W12–140, 1200 New Jersey Avenue SE., proposed AD because of those MCAI and service information Washington, DC 20590. comments. referenced above. We are proposing this • Hand Delivery: U.S. Department of We will post all comments we AD because we evaluated all Transportation, Docket Operations, M– receive, without change, to http:// information and determined the unsafe 30, West Building Ground Floor, Room regulations.gov, including any personal condition exists and is likely to exist or W12–140, 1200 New Jersey Avenue SE, information you provide. We will also develop on other products of the same Washington, DC 20590, between 9 a.m. post a report summarizing each type design.

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Costs of Compliance on a substantial number of small entities insufficient, or looseness at riveted end fittings is found on the elevator pushrods, We estimate that this proposed AD under the criteria of the Regulatory Flexibility Act. contact REIMS Aviation Industries at the would affect 7 products of U.S. registry. address specified in paragraph (h) of this AD We also estimate that it would take List of Subjects in 14 CFR Part 39 for a repair scheme and incorporate the about 4 work-hours per product to Air transportation, Aircraft, Aviation repair scheme. comply with the basic requirements of (3) Before further flight after the inspection safety, Incorporation by reference, required in paragraph (f)(1) of this AD, if this proposed AD. The average labor Safety. rate is $85 per work-hour. bending or eccentricity of an elevator Based on these figures, we estimate The Proposed Amendment pushrod is found that exceeds the allowable limits, replace each affected elevator pushrod the cost of this proposed AD on U.S. Accordingly, under the authority with a serviceable part following REIMS operators to be $2,380, or $340 per delegated to me by the Administrator, Aviation Industries Service Bulletin No. product. the FAA proposes to amend 14 CFR part F406–70, dated July 16, 2012. In addition, we estimate that any 39 as follows: necessary follow-on actions would take (g) Other FAA AD Provisions about 2.5 work-hours and require parts PART 39—AIRWORTHINESS The following provisions also apply to this costing $1,900, for a cost of $2,112.50 DIRECTIVES AD: per product. We have no way of (1) Alternative Methods of Compliance (AMOCs): The Manager, Standards Office, determining the number of products ■ 1. The authority citation for part 39 continues to read as follows: FAA, has the authority to approve AMOCs that may need these actions. for this AD, if requested using the procedures Authority for This Rulemaking Authority: 49 U.S.C. 106(g), 40113, 44701. found in 14 CFR 39.19. Send information to ATTN: Albert Mercado, Aerospace Engineer, Title 49 of the United States Code § 39.13 [Amended] FAA, Small Airplane Directorate, 901 Locust, specifies the FAA’s authority to issue ■ 2. The FAA amends § 39.13 by adding Room 301, Kansas City, Missouri 64106; rules on aviation safety. Subtitle I, the following new AD: telephone: (816) 329–4119; fax: (816) 329– 4090; email: [email protected]. Before section 106, describes the authority of REIMS Aviation S.A.: Docket No. FAA– using any approved AMOC on any airplane the FAA Administrator. ‘‘Subtitle VII: 2012–1346; Directorate Identifier 2012– to which the AMOC applies, notify your Aviation Programs,’’ describes in more CE–047–AD. appropriate principal inspector (PI) in the detail the scope of the Agency’s (a) Comments Due Date FAA Flight Standards District Office (FSDO), authority. or lacking a PI, your local FSDO. We are issuing this rulemaking under We must receive comments by February 19, 2013. (2) Airworthy Product: For any requirement the authority described in ‘‘Subtitle VII, in this AD to obtain corrective actions from Part A, Subpart III, section 44701: (b) Affected ADs a manufacturer or other source, use these General requirements.’’ Under that None. actions if they are FAA-approved. Corrective section, Congress charges the FAA with actions are considered FAA-approved if they promoting safe flight of civil aircraft in (c) Applicability are approved by the State of Design Authority air commerce by prescribing regulations This AD applies to Reims Aviation S.A. (or their delegated agent). You are required Model F406 airplanes, serial numbers F406– to assure the product is airworthy before it for practices, methods, and procedures is returned to service. the Administrator finds necessary for 0001 through F406–0096, certificated in any category. (3) Reporting Requirements: For any safety in air commerce. This regulation reporting requirement in this AD, a federal is within the scope of that authority (d) Subject agency may not conduct or sponsor, and a because it addresses an unsafe condition Air Transport Association of America person is not required to respond to, nor that is likely to exist or develop on (ATA) Code 27: Flight Controls. shall a person be subject to a penalty for failure to comply with a collection of products identified in this rulemaking (e) Reason action. information subject to the requirements of This AD was prompted by reports of the Paperwork Reduction Act unless that Regulatory Findings fretting (wear and/or chafing) found between collection of information displays a current the elevator pushrod assembly and horizontal valid OMB Control Number. The OMB We determined that this proposed AD tail structure. We are issuing this AD to Control Number for this information would not have federalism implications detect and correct any discrepancies with the collection is 2120–0056. Public reporting for under Executive Order 13132. This elevator pushrod assembly and the horizontal this collection of information is estimated to proposed AD would not have a tail structure, which could cause the elevator be approximately 5 minutes per response, substantial direct effect on the States, on pushrod to fail. Failure of the elevator including the time for reviewing instructions, the relationship between the national pushrod could cause the flight control to jam, completing and reviewing the collection of Government and the States, or on the which could result in loss of control. information. All responses to this collection of information are mandatory. Comments distribution of power and (f) Actions and Compliance responsibilities among the various concerning the accuracy of this burden and Unless already done, do the following suggestions for reducing the burden should levels of government. actions: be directed to the FAA at: 800 Independence For the reasons discussed above, I (1) Within the next 4 months after the Ave. SW., Washington, DC 20591, Attn: certify this proposed regulation: effective date of this AD, inspect the elevator Information Collection Clearance Officer, (1) Is not a ‘‘significant regulatory pushrod assemblies, part number (P/N) AES–200. action’’ under Executive Order 12866, 6015034–1, and the horizontal tail structure (h) Related Information (2) Is not a ‘‘significant rule’’ under following the Accomplishment Instructions the DOT Regulatory Policies and in REIMS Aviation Industries Service Refer to MCAI European Aviation Safety Procedures (44 FR 11034, February 26, Bulletin No. F406–70, dated July 16, 2012. Agency (EASA) AD No. 2012–0164, dated (2) Before further flight after the inspection August 28, 2012, and REIMS Aviation 1979), required in paragraph (f)(1) of this AD, if Industries Service Bulletin No. F406–70, (3) Will not affect intrastate aviation fretting is found on the horizontal tail dated July 16, 2012, for related information. in Alaska, and structure, or the clearance between the For service information related to this AD, (4) Will not have a significant elevator pushrod assemblies and the contact REIMS Aviation Industries, economic impact, positive or negative, horizontal tail structure is found to be Ae´rodrome de Reims Prunay, 51360 Prunay,

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France; telephone: 03.26.48.46.65; fax: Evaluation and Research, Food and Dated: December 27, 2012. 03.26.49.18.57; Internet: http:// Drug Administration, 10903 New Leslie Kux, www.geciaviation.com/en/. You may review Hampshire Ave. Bldg. 22, Rm. 3219, Assistant Commissioner for Policy. copies of the referenced service information at the FAA, Small Airplane Directorate, 901 Silver Spring, MD 20993, 301–796– [FR Doc. 2012–31578 Filed 1–2–13; 8:45 am] Locust, Kansas City, Missouri 64106. For 3980, FAX: 301–796–2310, email: BILLING CODE 4160–01–P information on the availability of this [email protected]. material at the FAA, call (816) 329–4148. SUPPLEMENTARY INFORMATION: Issued in Kansas City, Missouri, on ENVIRONMENTAL PROTECTION December 27, 2012. I. Background AGENCY John Colomy, Acting Manager, Small Airplane Directorate, In the Federal Register of November 40 CFR Parts 9, 63, 80, 85, 122, 123, Aircraft Certification Service. 28, 2012, FDA published a document and 412 [FR Doc. 2012–31602 Filed 1–2–13; 8:45 am] announcing a public meeting on [EPA–HQ–OW–2012–0813, FRL–9764–8] BILLING CODE 4910–13–P December 17, 2012, and the opening of a public docket to receive comments Section 610 Review of NPDES Permit related to the implementation of section Regulation and Effluent Limitations DEPARTMENT OF HEALTH AND 918 of the FD&C Act (21 U.S.C. 387r), Guidelines Standards for Concentrated HUMAN SERVICES as amended by the Tobacco Control Act Animal Feeding Operations (CAFOs); (Pub. L. 111–31). Under Section 918(a), Extension of Comment Period Food and Drug Administration the Secretary of the Department of AGENCY: Environmental Protection Health and Human Services (the Agency (EPA). 21 CFR Part 15 Secretary of HHS) is required to ACTION: Extension of public comment [Docket No. FDA–2012–N–1148] consider certain new approval period. mechanisms and additional indications Food and Drug Administration Actions for NRTs. Several NRTs, including SUMMARY: On October 31, 2012 the EPA Related to Nicotine Replacement nicotine-containing gums, patches, and published a request for comments on a Therapies and Smoking-Cessation lozenges, are already marketed for Regulatory Flexibility Act section 610 Products; Report to Congress on smoking cessation. Section 918(b) review titled, Section 610 Review of Innovative Products and Treatments requires that the Secretary of HHS, after NPDES Permit Regulation and Effluent for Tobacco Dependence; Public consultation with recognized scientific, Limitations Guidelines Standards for Hearing; Extension of Comment Period medical, and public health experts, Concentrated Animal Feeding AGENCY: Food and Drug Administration, submit a report to Congress examining Operations (CAFOs). As initially HHS. how best to regulate, promote, and published in the Federal Register, ACTION: Notification of public hearing; encourage the development of written comments were to be submitted Extension of comment period. ‘‘innovative products and treatments to the EPA on or before December 31, (including nicotine-based and non- 2012 (a 60-day public comment period). SUMMARY: The Food and Drug nicotine-based products and Since publication, the EPA has received Administration (FDA) is extending the treatments)’’ to better achieve the a request for additional time to submit comment period for the notice of public following three goals: (1) Total comments. Therefore, the EPA is hearing that appeared in the Federal abstinence from tobacco use, (2) extending the public comment period Register of November 28, 2012 (77 FR reductions in consumption of tobacco, for 60 days until March 1, 2013. 70955). In the public hearing notice, and (3) reductions in the harm DATES: The public comment period for FDA requested comments on FDA associated with continued tobacco use. the review published October 31, 2012 consideration of applicable approval FDA will consider the information it (77 FR 65840) is being extended for 60 mechanisms and additional indications obtains from the public hearing and days to March 1, 2013 in order to for nicotine replacement therapies related docket submissions in its provide the public additional time to (NRTs), and input on a report to implementation of the requirements of submit comments and supporting Congress examining the regulation and information. development of innovative products and section 918, including in drafting the ADDRESSES: treatments for tobacco dependence. The report to Congress required by section Comments: Submit your comments, Agency is taking this action to allow 918(b). identified by Docket ID No. EPA–HQ– interested persons additional time to II. Submission of Comments OW–2012–0813, by one of the following submit comments. methods: Interested persons may submit either DATES: Submit either electronic or • http://www.regulations.gov: Follow electronic comments regarding this written comments by January 16, 2013. the on-line instructions for submitting document to http://www.regulations.gov ADDRESSES: Submit electronic comments. comments to http:// or written comments to the Division of • Email: [email protected], www.regulations.gov. Submit written Dockets Management (see ADDRESSES). It Attention Docket ID No. EPA–HQ–OW– comments to the Division of Dockets is only necessary to send one set of 2012–0813. Management (HFA–305), Food and Drug comments. Identify comments with the • Fax: (202) 566–9744. Administration, 5630 Fishers Lane, Rm. docket number found in brackets in the • Mail: Water Docket, Environmental 1061, Rockville, MD 20852. Identify heading of this document. Received Protection Agency, Mailcode: 28221T, comments with the docket number comments may be seen in the Division Attention Docket ID No. EPA–HQ–OW– found in brackets in the heading of this of Dockets Management between 9 a.m. 2012–0813, 1200 Pennsylvania Ave. document. and 4 p.m., Monday through Friday, and NW., Washington, DC 20460. FOR FURTHER INFORMATION CONTACT: will be posted to the docket at http:// • Hand Delivery: EPA Docket Center, Ayanna Augustus, Center for Drug www.regulations.gov. EPA West, Room 3334, 1301

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Constitution Avenue NW., Washington, NW., Washington, DC 20004. The Public EPA made revisions to the CAFO DC, Attention Docket ID No. EPA–HQ– Reading Room is open from 8:30 a.m. to regulations in 2008 (73 FR 70418) and OW–2012–0813. Such deliveries are 4:30 p.m., Monday through Friday, 2012 (77 FR 44494). In promulgating the accepted only during the Docket excluding federal holidays. The 2008 regulatory revision, the EPA Center’s normal hours of operation, and telephone number for the Public certified that the 2008 rule would not special arrangements should be made Reading Room is (202) 566–1744, and have a significant adverse economic for deliveries of boxed information. the telephone number for the Water impact on a substantial number of small Instructions: Direct your comments to Docket is (202) 566–2426. entities. In promulgating the 2012 Docket ID No. EPA–HQ–OW–2012– FOR FURTHER INFORMATION CONTACT: For regulatory revision, the 2012 rule was 0813. The EPA’s policy is that all additional information contact, Hema not subject to the RFA because the RFA comments received will be included in Subramanian, Office of Wastewater applies only to rules subject to notice the public docket without change and Management (4203M), U.S. and comment rulemaking requirements could be made available online at Environmental Protection Agency, 1200 under the Administrative Procedure Act www.regulations.gov, including any Pennsylvania Ave. NW., Washington, (APA) or any other statute, and the 2012 personal information provided, unless DC 20460; telephone number: (202) rule was not subject to notice and the comment includes information 564–5041; fax number: (202) 564–6384; comment requirements. Both rules claimed to be Confidential Business email address: reduced the potential impact of the Information (CBI) or other information [email protected]. EPA’s CAFO regulations on small whose disclosure is restricted by statute. entities by reducing the universe of SUPPLEMENTARY INFORMATION: Do not submit information that you CAFOs that must apply for NPDES consider to be CBI or otherwise I. General Information permits. Although the EPA has made protected through www.regulations.gov these subsequent revisions to the CAFO or email. The www.regulations.gov Web Section 610 of the Regulatory Flexibility Act requires that an agency regulations, the scope of this 610 review site is an ‘‘anonymous access’’ system, is limited to the impacts on small which means that the EPA will not review, within 10 years of promulgation, each rule that has or will entities of the 2003 CAFO Rule as know your identity or contact amended. information unless you provide it in the have a significant economic impact on body of your comment. If you send an a substantial number of small entities II. Extension of Comment Period for the email comment directly to the EPA (SISNOSE). The EPA undertakes section Section 610 Review of the 2003 CAFO without going through 610 reviews to decide whether the Rule agency should continue a rule www.regulations.gov your email address The EPA is extending the deadline for unchanged, amend it, or withdraw it. will be automatically captured and submitting comments on the section 610 We encourage small entities to provide included as part of the comment that is review of the CAFO Rule to March 1, comments on the need to change these placed in the public docket and made 2013. The original deadline for rules, and in particular, how the rules available on the Internet. If you submit comments, based on a 60-day comment could be made clearer, more effective, or an electronic comment, the EPA period, was December 31, 2012. The if there is need to remove conflicting or recommends that you include your EPA’s decision responds to a request to overlapping requirements with other name and other contact information in extend the comment deadline. The EPA Federal or State regulations. the body of your comment and with any believes that this 60-day extension will The EPA promulgated revised disk or CD–ROM you submit. If the EPA assist in providing an adequate amount regulations for CAFOs on February 12, cannot read your comment because of of additional time for the public to 2003 (68 FR 7175). The ‘‘2003 CAFO technical difficulties and cannot contact review the action and to provide written Rule’’ expanded the number of you for clarification, the EPA might not comments. be able to consider your comment. operations covered by the CAFO Electronic files should avoid the use of regulations and included requirements Dated: December 19, 2012. special characters, any form of to address the land application of Alexander Cristofaro, encryption, and be free of any defects or manure from CAFOs. The 2003 CAFO Director, Office of Regulatory Policy and viruses. For additional information Rule required all CAFOs to seek NPDES Management. about the EPA’s public docket visit the permit coverage. The EPA developed a [FR Doc. 2012–31091 Filed 1–2–13; 8:45 am] EPA Docket Center homepage at http: Final Regulatory Flexibility Analysis BILLING CODE 6560–50–P //www.epa.gov/epahome/dockets.htm. (FRFA) for the 2003 CAFO Rule. In the For additional instructions on 2003 CAFO Rule, the EPA took several submitting comments, go to the steps to minimize its impacts on small DEPARTMENT OF THE INTERIOR SUPPLEMENTARY INFORMATION section of businesses, including regulatory this document. revisions designed to focus on the Fish and Wildlife Service Docket: All documents in the docket largest producers, eliminating the are listed in the www.regulations.gov ‘‘mixed’’ animal calculation for 50 CFR Part 17 index. Although listed in the index, operations with more than a single [Docket No. FWS–R4–ES–2012–0020; some information is not publicly animal type for determining which 92220–1113–0000–C6] available, e.g., CBI or other information AFOs are CAFOs, raising the duck whose disclosure is restricted by statute. threshold for dry manure handling duck RIN 1018–AX60 Certain other material, such as operations, and adopting a dry-litter Endangered and Threatened Wildlife copyrighted material, will be publicly chicken threshold higher than proposed. and Plants; Reclassification of the available only in hard copy. Publicly Subsequently, a series of court Continental United States Breeding available docket materials are available decisions based on legal challenges to Population of the Wood Stork From either electronically in the rulemaking have limited the Endangered to Threatened; Correction www.regulations.gov or in hard copy at requirement for NPDES permit coverage the Water Docket, EPA/DC, EPA West, specifically to CAFOs that discharge. In AGENCY: Fish and Wildlife Service, Room 3334, 1301 Constitution Ave. response to these court decisions, the Interior.

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ACTION: Proposed rule and notice of www.regulations.gov to search for our obligations and the 2006 Consolidated petition finding; correction. docket using the incorrect docket HMS FMP as amended. The proposed number, which actually did not appear measures include changes to SUMMARY: On December 26, 2012, we, anywhere on the regulations.gov site. commercial quotas and species groups, the U.S. Fish and Wildlife Service, However, users who searched based on the creation of several time/area published a proposed rule and petition key words (e.g., species name) rather closures, a change to an existing time/ finding to reclassify the continental than on the incorrect docket number area closure, an increase in the United States (U.S.) breeding population were able to find the document and recreational minimum size restrictions, of wood stork from endangered to comment successfully. These comments and the establishment of recreational threatened under the Endangered have been placed into the correct reporting for certain species of sharks. Species Act of 1973, as amended (Act). docket. Therefore, if you already Comments received by NMFS will be In that publication, we supplied an submitted a comment via considered in the development and incorrect docket number for regulations.gov, you need not resubmit finalization of Amendment 5 to the 2006 commenters to use when they send us it. Consolidated HMS FMP. This notice comments. The correct docket number announces the rescheduling of the is FWS–R4–ES–2012–0020. Commenting via U.S. Mail or Hand- Delivery Louisiana public hearing and the DATES: We will accept comments addition of two public hearings in received or postmarked on or before We also asked commenters submitting Maryland and Texas. hardcopy comments to refer to this February 25, 2013. We must receive DATES: Written comments will be incorrect docket number in their requests for a public hearing in writing, accepted until February 12, 2013. Public at the address shown in the FOR FURTHER comments. However, comments we received by U.S. mail or hand delivery hearings, conference calls, and an HMS INFORMATION CONTACT section, by Advisory Panel meeting for the February 11, 2013. will be routed to the correct docket. If you already submitted a hardcopy Amendment 5 proposed rule will be ADDRESSES: You may submit comments comment, you need not resubmit it. held from December 2012 to February by one of the following methods: 2013. See SUPPLEMENTARY INFORMATION • Federal eRulemaking Portal: http:// Background for meeting dates, times, and locations. www.regulations.gov. Follow the For the petition finding and proposed ADDRESSES: Additional and rescheduled instructions for submitting comments rule, please see our original Federal public hearings will be held in on Docket No. FWS–R4–ES–2012–0020. Maryland, Texas, and Louisiana. See • Register document at 77 FR 75947. U.S. mail or hand-delivery: Public SUPPLEMENTARY INFORMATION for dates, Comments Processing, Attn: FWS–R4– Sara Prigan, times, and locations. ES–2012–0020; Division of Policy and Federal Register Liaison. You may submit comments on this Directives Management; U.S. Fish and [FR Doc. 2012–31718 Filed 1–2–13; 1:55 pm] document, identified by NOAA–NMFS– Wildlife Service; 4401 N. Fairfax Drive, BILLING CODE 4310–55–P 2012–0161, by any of the following Suite 222; Arlington, VA 22203. methods: FOR FURTHER INFORMATION CONTACT: • Electronic Submission: Submit all Field Supervisor, North Florida DEPARTMENT OF COMMERCE electronic public comments via the Ecological Services Field Office, 7915 National Oceanic and Atmospheric Federal e-Rulemaking Portal. Go to Baymeadows Way, Suite 200, Administration http://www.regulations.gov/ Jacksonville, FL 32256; telephone 904– #!documentDetail;D=NOAA-NMFS- 731–3336; facsimile 904–731–3045. If 50 CFR Part 635 2012-0161, click the ‘‘Comment Now!’’ you use a telecommunications device icon, complete the required fields, and for the deaf, please call the Federal RIN 0648–BB29 enter or attach your comments. Information Relay Service at 800–877– • Mail: Submit written comments to 8339, 24 hours a day, 7 days a week. Atlantic Highly Migratory Species; Peter Cooper, SF1/NMFS/NOAA, 2006 Consolidated Highly Migratory SUPPLEMENTARY INFORMATION: Highly Migratory Species Management Species Fishery Management Plan; Division, 1315 East-West Highway, Correction of Error Amendment 5 Silver Spring, MD 20910. Please mark On December 26, 2012 (77 FR 75947), AGENCY: National Marine Fisheries the outside of the envelope ‘‘Comments we published a petition finding and Service (NMFS), National Oceanic and on the Draft Amendment 5 to the 2006 proposed rule to reclassify the Atmospheric Administration (NOAA), Consolidated HMS FMP.’’ • continental U.S. breeding population of Commerce. Fax: 301–713–1917; Attn: Peter wood stork from endangered to ACTION: Notice of public hearings. Cooper. threatened under the Act (16 U.S.C. Instructions: Comments must be 1531 et seq.). In that publication, we SUMMARY: On November 26, 2012, submitted by one of the above methods supplied an incorrect docket number for NMFS published a proposed rule for to ensure that the comments are commenters to use when they send us Amendment 5 to the 2006 Consolidated received, documented, and considered comments. We are publishing this Highly Migratory Species (HMS) Fishery by NMFS. Comments sent by any other notice to clarify that the correct docket Management Plan (FMP) in response to method, to any other address or number is FWS–R4–ES–2012–0020. several shark stock assessments that individual, or received after the end of However, if you already submitted a were completed from 2009 to 2012. As the comment period, may not be comment, you need not resubmit it. described in the proposed rule, NMFS is considered. All comments received are proposing measures that would reduce a part of the public record and generally Commenting Online fishing mortality and effort in order to will be posted for public viewing on In our December Federal Register rebuild overfished Atlantic shark www.regulations.gov without change. publication, we inadvertently asked species while ensuring that a limited All personal identifying information commenters wishing to submit sustainable shark fishery can be (e.g., name, address, etc.) submitted comments online via http:// maintained consistent with our legal voluntarily by the sender will be

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publicly accessible. Do not submit 2006 Consolidated HMS FMP based on Request for Comments confidential business information, or several shark stock assessments that otherwise sensitive or protected were completed from 2009 to 2012. The Public hearings in Florida (2), information. NMFS will accept assessments for Atlantic blacknose, Louisiana, Massachusetts, New Jersey, anonymous comments (enter ‘‘N/A’’ in dusky, and scalloped hammerhead and North Carolina were recently the required fields if you wish to remain sharks indicated that these species are announced in the Federal Register to anonymous). Attachments to electronic overfished and experiencing provide the opportunity for public comments will be accepted in Microsoft overfishing. As described in the comment on the measures described in Word or Excel, WordPerfect, or Adobe proposed rule, NMFS is proposing the proposed rule and draft Amendment PDF file formats only. measures that would reduce fishing 5 (77 FR 73608; December 11, 2012). FOR FURTHER INFORMATION CONTACT: mortality and effort in order to rebuild NMFS will also hold two public Peter Cooper, Guy´ DuBeck, Jennifer overfished Atlantic shark species while conference calls/webinars to provide Cudney or Karyl Brewster-Geisz at 301– ensuring that a limited sustainable shark individuals opportunities to submit 427–8503. fishery can be maintained consistent public comment if they are unable to SUPPLEMENTARY INFORMATION: The with our legal obligations and the 2006 attend a public hearing. NMFS has Atlantic shark fisheries are managed Consolidated HMS FMP. The proposed rescheduled the public hearing in under the Magnuson-Stevens Act. measures include changes to Louisiana due to a previously scheduled Management of these species is commercial quotas and species groups, event in the New Orleans area, which described in the 2006 Consolidated the creation of several time/area may affect constituent traveling to the HMS FMP and its amendments, which closures, a change to an existing time/ public hearing location. Also, NMFS are implemented by regulations at 50 area closure, an increase in the announces two additional public recreational minimum size restrictions, CFR part 635. Copies of the 2006 hearings that will be held in Maryland and the establishment of recreational Consolidated HMS FMP and and Texas. The Maryland public hearing amendments are available from NMFS reporting for certain species of sharks. will be held in conjunction with a state on request (see FOR FURTHER Any comments received during the stakeholder meeting being held by the INFORMATION CONTACT). comment period will be considered in On November 26, 2012, NMFS the development and finalization of Maryland Department of Natural published a proposed rule (77 FR Amendment 5 to the 2006 Consolidated Resources on Draft Amendment 5. 70552) for draft Amendment 5 to the HMS FMP.

TABLE 1—DATES, TIMES AND LOCATIONS OF UPCOMING ADDITIONAL AND RESCHEDULED PUBLIC HEARINGS.

Venue Date/time Meeting locations Location contact information

Public Hearing ...... January 15, 2013 ...... Belle Chasse, LA ...... Belle Chasse Auditorium, 8398 Hwy 23, Belle Chasse, 5 p.m.–8 p.m...... LA 70037. Public Hearing ...... January 30, 2013 ...... Ocean Pines, MD...... Ocean Pines Branch, Worcester County Library, 5 p.m.–8 p.m...... 11107 Cathell Road, Ocean Pines, MD 21811, (410) 208–4014. Public Hearing ...... February 7, 2013 ...... Houston, TX...... Clear Lake City-County Freeman Branch Library, 5 p.m.–8 p.m...... 16616 Diana Lane, Houston, Texas 77062, 281– 488–1906

NMFS welcomes comments on any if certain otherwise prohibited gear is NMFS representative will structure the aspect of, or alternative considered, in properly stowed and inoperable. meeting so that all attending members of the proposed rule. NMFS is specifically the public will be able to comment, if Public Hearing Code of Conduct seeking comments on the administration they choose, regardless of the of dusky shark bycatch caps program in The public is reminded that NMFS controversial nature of the subject(s). select areas given limited additional expects participants at public hearings Attendees are expected to respect the observer program resources; the name of and on phone conferences to conduct ground rules, and those that do not will reconfigured groupings of sharks that themselves appropriately. At the be asked to leave the meeting. would continue to be managed beginning of each meeting, a Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. collectively in the reminder of what is representative of NMFS will explain the 1801 et seq. currently the large coastal shark ground rules (e.g., alcohol is prohibited complex for quota monitoring purposes; from the meeting room; attendees will Dated: December 27, 2012. suggestions for improving angler be called to give their comments in the Lindsay Fullenkamp, identification of shark species and order in which they registered to speak; Acting Deputy Director, Office of Sustainable reducing dusky shark mortality in the each attendee will have an equal Fisheries, National Marine Fisheries Service. recreational fishery; and whether NMFS amount of time to speak; attendees may [FR Doc. 2012–31629 Filed 12–28–12; 4:15 pm] should permit the transit of closed areas not interrupt one another; etc.). The BILLING CODE 3510–22–P

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Notices Federal Register Vol. 78, No. 2

Thursday, January 3, 2013

This section of the FEDERAL REGISTER the collection of information unless it DEPARTMENT OF AGRICULTURE contains documents other than rules or displays a currently valid OMB control proposed rules that are applicable to the number. Submission for OMB Review; public. Notices of hearings and investigations, Comment Request committee meetings, agency decisions and Animal and Plant Health Inspection rulings, delegations of authority, filing of Service December 27, 2012. petitions and applications and agency The Department of Agriculture has statements of organization and functions are Title: Stakeholder/Customer submitted the following information examples of documents appearing in this Satisfaction Survey. collection requirement(s) to OMB for section. OMB Control Number: 0579–0360. review and clearance under the Summary of Collection: In 2003, the Paperwork Reduction Act of 1995, Public Law 104–13. Comments DEPARTMENT OF AGRICULTURE Plant Health Program (PHP) unit, Plant Protection and Quarantine, Animal and regarding (a) whether the collection of Submission for OMB Review; Plant Health Inspection Service information is necessary for the proper Comment Request (APHIS), obtained from the performance of the functions of the International Organization of agency, including whether the December 28, 2012. Standardization (ISO, nongovernmental information will have practical utility; The Department of Agriculture has worldwide network of national (b) the accuracy of the agency’s estimate submitted the following information standards institutes) certification in the of burden including the validity of the collection requirement(s) to OMB for ISO 9001;2008 standard for its permit methodology and assumptions used; (c) review and clearance under the services. To meet the ISO 9001;2008 ways to enhance the quality, utility and Paperwork Reduction Act of 1995, standards, an organization must clarity of the information to be Public Law 104–13. Comments demonstrate its ability to consistently collected; (d) ways to minimize the regarding (a) whether the collection of provide a product that meets customer burden of the collection of information information is necessary for the proper quality requirements and applicable on those who are to respond, including performance of the functions of the regulatory requirements, while aiming through the use of appropriate agency, including whether the to enhance customer satisfaction automated, electronic, mechanical, or information will have practical utility; through effective application of the other technological collection (b) the accuracy of the agency’s estimate system, including processes for techniques or other forms of information of burden including the validity of the continual improvement of its technology. methodology and assumptions used; (c) Comments regarding this information ways to enhance the quality, utility and performance. In order to remain in compliance with Clause 8.2.1 (Customer collection received by February 4, 2013 clarity of the information to be will be considered. Written comments collected; (d) ways to minimize the Satisfaction) of the ISO 9001;2008 standard, PHP must measure the should be addressed to: Desk Officer for burden of the collection of information Agriculture, Office of Information and on those who are to respond, including performance of its quality management system by monitoring information Regulatory Affairs, Office of through the use of appropriate Management and Budget (OMB), New automated, electronic, mechanical, or related to customer perception in relationship to customer requirements. Executive Office Building, 725–17th other technological collection Street NW., Washington, DC 20502. techniques or other forms of information PHP has determined that the best method for obtaining this information is Commenters are encouraged to submit technology should be addressed to: Desk their comments to OMB via email to: Officer for Agriculture, Office of through the use of stakeholder/customer _ satisfaction surveys. OIRA [email protected] or Information and Regulatory Affairs, fax (202) 395–5806 and to Departmental Office of Management and Budget Need and Use of the Information: PHP Clearance Office, USDA, OCIO, Mail (OMB), will collect information from the survey Stop 7602, Washington, DC 20250– _ OIRA [email protected] or to solicit stakeholder and customer 7602. Copies of the submission(s) may fax (202) 395–5806 and to Departmental feedback with regards to their be obtained by calling (202) 720–8958. Clearance Office, USDA, OCIO, Mail satisfaction with the regulatory services An agency may not conduct or Stop 7602, Washington, DC 20250– of Permit Services and Pest Permit sponsor a collection of information 7602. Comments regarding these Evaluations. unless the collection of information information collections are best assured Description of Respondents: Business displays a currently valid OMB control of having their full effect if received or other for-profit. number and the agency informs within 30 days of this notification. Number of Respondents: 500. potential persons who are to respond to Copies of the submission(s) may be the collection of information that such obtained by calling (202) 720–8958. Frequency of Responses: Reporting: persons are not required to respond to An agency may not conduct or On occasion. the collection of information unless it sponsor a collection of information Total Burden Hours: 48. displays a currently valid OMB control unless the collection of information number. displays a currently valid OMB control Ruth Brown, number and the agency informs Departmental Information Collection Animal Plant and Health Inspection potential persons who are to respond to Clearance Officer. Service the collection of information that such [FR Doc. 2012–31641 Filed 1–2–13; 8:45 am] Title: Brucellosis Program. persons are not required to respond to BILLING CODE 3410–34–P OMB Control Number: 0579–0047.

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Summary of Collection: The Animal including trainers, riders, or owners. Clearance Office, USDA, OCIO, Mail Health Protection Act (AHPA) of 2002 is Management of shows, sales, Stop 7602, Washington, DC 20250– the primary Federal law governing the exhibitions, or auctions must identify 7602. Comments regarding these protection of animal health. The AHPA sored horses to prevent their information collections are best assured is contained in Title X, Subtitle E, participation under the Horse Protection of having their full effect if received Sections 10401–18 of Public Law 107– Act. within 30 days of this notification. 171, May 13 2002, the Farm Security Need and Use of the Information: Copies of the submission(s) may be and Rural Investment Act of 2002. APHIS will collect information at obtained by calling (202) 720–8681. Brucellosis is an infectious disease of specified intervals from Horse Industry An agency may not conduct or animals and humans caused by bacteria Organizations (HIO) and show sponsor a collection of information of the genus Brucella. Veterinary management. HIOs must maintain an unless the collection of information Services, a division with USDA’s acceptable Designated Qualified Person displays a currently valid OMB control Animal and Plant Health Inspection (DQP) program and recordkeeping number and the agency informs Service (APHIS), is responsible for system as outlined in the regulations. potential persons who are to respond to administering regulations intended to Information provided by the HIOs the collection of information that such protect the health of the U.S. livestock through DQPs allows APHIS to monitor persons are not required to respond to population. The continued presence of and enforce the Horse Protection Act, its the collection of information unless it brucellosis in a herd seriously threatens regulations, and certifying programs. displays a currently valid OMB control the health, welfare, and economic Description of Respondents: Business number. or other for-profit. viability of the livestock industry. There Forest Service is no economically feasible treatment for Number of Respondents: 1.514. Frequency of Responses: brucellosis in livestock. The Title: Application and Permit for Non- Recordkeeping; Reporting: Quarterly; Cooperative State-Federal Brucellosis Federal Commercial Use of Roads, Monthly; Annually. Trails and Areas Restricted by Eradication Program is a national Total Burden Hours: 2,266. program to eliminate this serious Regulation or Order. OMB Control Number: 0596–0016. disease of livestock. APHIS will collect Ruth Brown, Summary of Collection: Authority for information using various forms. Departmental Information Collection permits for use of National Forest Need and Use of the Information: Clearance Officer. System (NFS) roads, trails, and areas on APHIS will use the information [FR Doc. 2012–31566 Filed 1–2–13; 8:45 am] NFS lands restricted by order or collected from the forms to demonstrate BILLING CODE 3410–34–P regulation drives from the National that program requirements are being met Forest Roads and Trails Act (16 U.S.C. for State and herd status. APHIS also 532–538). The authority for the Road DEPARTMENT OF AGRICULTURE uses the information to demonstrate that Use Permit process comes from 36 CFR program-allowed activities, such as 212.5, 36 CFR 212.9 and 36 CFR 261.54. testing, vaccinating, and movement, are Submission for OMB Review; Comment Request Section 212.9 authorizes the Forest being conducted in accordance with Service (FS) to develop a road system program rules. Without the information, December 28, 2012. with private holders that is mutually APHIS would not be able to conduct an The Department of Agriculture has beneficial to both parties. The FS effective bovine brucellosis surveillance submitted the following information transportation system includes and eradication program. collection requirement(s) to OMB for approximately 380,000 miles of roads. Description of Respondents: Business; review and clearance under the These roads are grouped into five State, Local or Tribal Government. Paperwork Reduction Act of 1995, Number of Respondents: 89,464. maintenance levels. Level one includes Frequency of Responses: Public Law 104–13. Comments roads, which are closed and maintained Recordkeeping; Reporting: On occasion; regarding (a) whether the collection of only to protect the environment to level Quarterly; Monthly. information is necessary for the proper five, which is maintained for safe Total Burden Hours: 252,331. performance of the functions of the passenger car use. The roads usually agency, including whether the provide the only access to commercial Animal and Plant Health Inspection information will have practical utility; products including timber and minerals Service (b) the accuracy of the agency’s estimate found on both Federal and private lands Title: Horse Protection Regulations. of burden including the validity of the within and adjacent to National Forests. OMB Control Number: 0579–0056. methodology and assumptions used; (c) Annual maintenance not performed Summary of Collection: 9 CFR Part 11, ways to enhance the quality, utility and becomes a backlog that creates a Regulations, implement the Horse clarity of the information to be financial burden for the FS. To remedy Protection Act of 1970 (Pub. L. 91–540), collected; (d) ways to minimize the the backlog and pay for needed as amended July 13, 1976 (Pub. L. 94– burden of the collection of information maintenance the FS requires 360), and are authorized under Section on those who are to respond, including commercial users to apply and pay for 9 of the Act. The Horse Protection through the use of appropriate a permit to use the FS Road System. Legislation was enacted to prevent automated, electronic, mechanical, or Maintenance resulting from commercial showing, exhibiting, selling, or other technological collection use is accomplished through collection auctioning of ‘‘sore’’ horses, and certain techniques and other forms of of funds or requiring the commercial transportation of sore horses in information technology should be users to perform the maintenance. connection therewith at horse shows, addressed to: Desk Officer for Need and Use of the Information: horse exhibitions, horse sales, and horse Agriculture, Office of Information and Information is collected from auctions. A sore horse is a horse that has Regulatory Affairs, Office of individuals, corporations, or received pain-provoking practices that Management and Budget (OMB), organizations on the FS–7700–40 cause the horse to have an accentuated, Washington, DC, ‘‘Application for a Permit for Use of high stepping gait. Sored horses cannot [email protected] or Roads, Trails and Areas Restricted by be entered in an event by any person, fax (202) 395–5806 and to Departmental Regulation or Order’’ along with FS–

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7700–40a ‘‘Commercial Use Standards for Grades of Eggplant are The United States Standards for Attachment’’ or FS–7700–40b ‘‘Oversize available through the Specialty Crops Grades of Eggplant will be effective 30 Vehicle Attachment’’ if applicable. The Inspection Division Web site at http:// days after publication of this notice in forms provide identifying information www.ams.usda.gov/freshinspection. the Federal Register. about the applicant such as, the name; SUPPLEMENTARY INFORMATION: Section Authority: 7 U.S.C. 1621–1627. address; and telephone number; 203(c) of the Agricultural Marketing Act description of mileage of roads; purpose of 1946 (7 U.S.C. 1621–1627), as Dated: December 28, 2012. of use; use schedule; and plans for amended, directs and authorizes the Rex A. Barnes, future use. FS will use the information Secretary of Agriculture ‘‘to develop and Administrator, Agricultural Marketing to prepare the applicant’s permit, FS– improve standards of quality, condition, Service. 7700–41 or FS–7700–48, to identify the quantity, grade and packaging and [FR Doc. 2012–31611 Filed 1–2–13; 8:45 am] road maintenance that is the direct recommend and demonstrate such BILLING CODE 3410–02–P result of the applicant’s traffic, to standards in order to encourage calculate any applicable collections for uniformity and consistency in recovery of past Federal investments in commercial practices.’’ AMS is DEPARTMENT OF AGRICULTURE roads and assure that the requirements committed to carrying out this authority Food Safety and Inspection Service are met. Without the Road Use Permit, in a manner that facilitates the the backlog of maintenance would marketing of agricultural commodities [Docket Number FSIS–2012–0048] increase and the FS would have great and makes copies of official standards RIN 0583–AD40 difficulty providing the transportation available upon request. The United system necessary to meet our mission. States Standards for Grades of Fruits 2013 Rate Changes for the Basetime, Description of Respondents: Business and Vegetables not connected with Overtime, Holiday, and Laboratory or other for-profit; Individuals or Federal Marketing Orders or U.S. Import Services Rates households; State, Local or Tribal Requirements, no longer appear in the Government; Not-for-profit institutions. Code of Federal Regulations, but are AGENCY: Food Safety and Inspection Number of Respondents: 2000. maintained by USDA, AMS, Fruit and Service, USDA. Frequency of Responses: Reporting: Vegetable Programs, and are available ACTION: Notice. On occasion. on the internet at www.ams.usda.gov/ Total Burden Hours: 196. freshinspection. SUMMMARY: The Food Safety and AMS is revising the voluntary United Inspection Service (FSIS) is announcing Charlene Parker, States Standards for Grades of Eggplant the 2013 rates it will charge meat and Departmental Information Collection procedures that appear in Part 36, Title poultry establishments, egg products Clearance Officer. 7 of the Code of Federal Regulations (7 plants, and importers and exporters for [FR Doc. 2012–31640 Filed 1–2–13; 8:45 am] CFR part 36). providing voluntary, overtime, and BILLING CODE 3410–11–P holiday inspection and identification, Background and Comments certification, and laboratory services. On February 9, 2012, AMS published The 2013 basetime, overtime, holiday, DEPARTMENT OF AGRICULTURE a notice in the Federal Register (77 FR and laboratory services rates will be 6774), soliciting comments regarding Agricultural Marketing Service applied on the first FSIS pay period at amending the varietal characteristic the beginning of the calendar year, [Doc. Number FV–11–0052] requirement in the U.S. Fancy and No. January 13, 2013. 1 grades, removing the unclassified DATES: FSIS will charge the rates United States Standards for Grades of section, and any other possible revision announced in this notice beginning Eggplant to the United States Standards for January 13, 2013. Grades of Eggplant. The public AGENCY: Agricultural Marketing Service, comment period closed on April 9, FOR FURTHER INFORMATION CONTACT: For USDA. 2012, with no responses. further information contact Michael ACTION: Final notice. Based on the information gathered, Toner, Director, Budget Division, Office AMS believes that permitting mixed of Management, FSIS, U.S. Department SUMMARY: The Agricultural Marketing colors and/or type packs will facilitate of Agriculture, Room 2159 South Service (AMS), of the Department of the marketing of eggplant by providing Building, 1400 Independence Avenue Agriculture (USDA), is revising the the industry with more flexibility that SW., Washington, DC 20250–3700; voluntary United States Standards for reflects current marketing practices and Telephone (202) 720–8700, Fax (202) Grades of Eggplant. AMS has reviewed consumer demand. Therefore, AMS will 690–4155. the fresh fruit and vegetable grade revise provisions concerning the ‘‘U.S. SUPPLEMENTARY INFORMATION: standards for usefulness in serving the Fancy’’ and ‘‘U.S. No. 1’’ grades by Background industry. As a result, AMS will amend adding ‘‘except when specified as a the similar varietal characteristic mixed or specialty pack’’ to the similar On April 12, 2011, FSIS published a requirement in the U.S. Fancy and No. varietal characteristics requirement. In final rule amending its regulations to 1 grades to allow mixed colors and/or addition, AMS will remove the establish formulas for calculating the types of eggplant when designated as a ‘‘Unclassified’’ category from the rates it charges meat and poultry mixed or specialty pack. In addition, standards. establishments, egg products plants, and AMS will remove the ‘‘Unclassified’’ The official grade of a lot of eggplant importers and exporters for providing category from the standards. covered by these standards will be voluntary, overtime, and holiday DATES: Effective Date: February 4, 2013. determined by the procedures set forth inspection and identification, FOR FURTHER INFORMATION CONTACT: in the Regulations Governing certification, and laboratory services (76 Dave Horner, Standardization Branch, Inspection, Certification, and Standards FR 20220). Specialty Crops Inspection Division, of Fresh Fruits, Vegetables and Other In the final rule, FSIS stated that it (540) 361–1128. The United States Products (Sec. 51.1 to 51.61). would use the formulas to calculate the

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annual rates, publish the rates in 16,663,724)]= $27.83 + ($27.83 * 1.9% benefits are health insurance, Federal Register notices prior to the (calendar year 2013 Cost of Living retirement, life insurance, and Thrift start of each calendar year, and apply Increase)) =$28.36 * 1.5 = $42.54 + Savings Plan basic and matching the rates on the first FSIS pay period at $8.96 (benefits rate) + $.70 (travel and contributions. the beginning of the calendar year. operating rate) + $17.15 (overhead The calculation for the 2013 benefits This notice provides the 2013 rates, rate) + $.01 (bad debt allowance rate) rate per hour per program employee is: which will be applied starting on = $69.36. [FY 2012 Direct Benefits/(Total Regular January 13, 2013. Holiday Rate = The quotient of hours + Total Overtime hours + Total Holiday hours) ($171,649,295/ 2013 Rates and Calculations dividing the Office of Field Operations (OFO) plus Office of International 19,514,555)] = $8.80 + ($8.80 * 1.9% The following table lists the 2013 Affairs (OIA) inspection program (calendar year 2013 Cost of Living Rates per hour, per employee, by type personnel’s previous fiscal year’s Increase) = $8.96. of service: regular direct pay by the previous fiscal Travel and Operating Rate: The year’s regular hours, plus that quotient quotient of dividing the previous fiscal 2013 Rate year’s total direct travel and operating (estimates multiplied by the calendar year’s Service rounded to reflect percentage of cost of living increase, costs by the previous fiscal year’s total billable quarters) multiplied by 2, plus the benefits rate, hours (regular, overtime, and holiday), plus the travel and operating rate, plus plus that quotient multiplied by the Basetime ...... $55.18 the overhead rate, plus the allowance calendar year’s percentage of inflation. Overtime ...... 69.36 for bad debt rate. The calculation for the 2013 travel Holiday ...... 83.54 The calculation for the 2013 holiday and operating rate per hour per program Laboratory ...... 69.01 rate per hour per program employee employee is: calculation is: [FY 2012 Total Direct Travel and FSIS determined the 2013 rates using Operating Costs/(Total Regular hours the following calculations: [FY 2012 OFO and OIA Regular Direct Pay divided by Regular Hours + Total Overtime hours + Total Basetime Rate = The quotient of Holiday hours) ($13,351,831/ dividing the Office of Field Operations ($463,760,597/16,663,724)]= $27.83 + ($27.83 * 1.9% (calendar year 2013 19,514,555)] = $.68 + ($.68 * 1.6% (OFO) plus Office of International (2013 Inflation) = $.70. Affairs (OIA) inspection program Cost of Living Increase)) =$28.36 * 2 Overhead Rate: The quotient of personnel’s previous fiscal year’s = $56.72 + $8.96(benefits rate) + $.70 dividing the previous fiscal year’s regular direct pay by the previous fiscal (travel and operating rate) + $17.15 indirect costs plus the previous fiscal year’s regular hours, plus the quotient (overhead rate) + $.01 (bad debt year’s information technology (IT) costs multiplied by the calendar year’s allowance rate) = $83.54. in the Public Health Data percentage of cost of living increase, Laboratory Services Rate = The Communication Infrastructure System plus the benefits rate, plus the travel quotient of dividing the Office of Public Fund plus the previous fiscal year’s and operating rate, plus the overhead Health Science (OPHS) previous fiscal year’s regular direct pay by the OPHS Office of Management Program cost in rate, plus the allowance for bad debt the Reimbursable and Voluntary Funds rate. previous fiscal year’s regular hours, plus the quotient multiplied by the calendar plus the provision for the operating The calculation for the 2013 basetime balance less any Greenbook costs (i.e., rate per hour per program employee is: year’s percentage cost of living increase, plus the benefits rate, plus the travel costs of USDA support services prorated [FY 2012 OFO and OIA Regular Direct to the service component for which fees Pay divided by the previous fiscal and operating rate, plus the overhead rate, plus the allowance for bad debt are charged) that are not related to food year’s Regular Hours ($463,760,597/ inspection by the previous fiscal year’s 16,663,724)] = $27.83 + ($27.83 * rate. The calculation for the 2013 total hours (regular, overtime, and 1.9% (calendar year 2013 Cost of laboratory services rate per hour per holiday) worked across all funds, plus Living Increase)) = $28.36 + program employee is: the quotient multiplied by the calendar $8.96(benefits rate) + $.70 (travel and [FY 2012 OPHS Regular Direct Pay/ year’s percentage of inflation. operating rate) + $17.15 (overhead The calculation for the 2013 overhead OPHS Regular hours ($22,908,043/ rate) + $.01 (bad debt allowance rate) rate per hour per program employee is: = $55.18. 553,403)] = $41.39 + ($41.39 * 1.9% (calendar year 2013 Cost of Living [FY 2012 Total Overhead/(Total Regular Overtime Rate = The quotient of Increase)) = $42.18 + $8.96 (benefits hours + Total Overtime hours + Total dividing the Office of Field Operations rate) + $.70 (travel and operating rate) Holiday hours)($329,449,845/ (OFO) plus Office of International + $17.15 (overhead rate) + $.01 (bad 19,514,555)] = $16.88 + ($16.88 * Affairs (OIA) inspection program debt allowance rate) = $69.01. 1.6% (2013 Inflation) = $17.15. personnel’s previous fiscal year’s Allowance for Bad Debt Rate = regular direct pay by the previous fiscal Calculations for the Benefits, Travel Previous fiscal year’s total allowance for year’s regular hours, plus that quotient and Operating, Overhead, and bad debt (for example, debt owed that multiplied by the calendar year’s Allowance for Bad Debt Rates is not paid in full by plants and percentage of cost of living increase, These rates are components of the establishments that declare bankruptcy) multiplied by 1.5, plus the benefits rate, basetime, overtime, holiday, and divided by previous fiscal year’s total plus the travel and operating rate, plus laboratory services rates formulas. hours (regular, overtime, and holiday) the overhead rate, plus the allowance Benefits Rate: The quotient of worked. for bad debt rate. dividing the previous fiscal year’s direct The 2013 calculation for bad debt rate The calculation for the 2013 overtime benefits costs by the previous fiscal per hour per program employee is: rate per hour per program employee is: year’s total hours (regular, overtime, and [FY 2012 Total Bad Debt/(Total Regular [FY 2012 OFO and OIA Regular Direct holiday), plus that quotient multiplied hours + Total Overtime hours + Total Pay divided by previous fiscal year’s by the calendar year’s percentage cost of Holiday hours) = ($286,335/ Regular Hours ($463,760,597/ living increase. Some examples of direct 19,514,555)] = $.01.

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Additional Public Notification DEPARTMENT OF AGRICULTURE water and wastewater in rural areas that qualify for federal assistance. During the FSIS will announce this notice online Rural Utilities Service 1994 USDA reorganization, the former through the FSIS Web page located at Rural Electrification Administration http://www.fsis.usda.gov/ Supplemental Final Environmental (REA) utility programs were regulations_&_policies/ Impact Statement for Healy Power _ _ consolidated under RUS. The RUS Federal Register Notices/index.asp. Generation Unit #2, Healy, AK Electric Program is authorized to make FSIS will also make copies of this AGENCY: Rural Utilities Service, USDA. loans and loan guarantees that finance Federal Register publication available the construction of electric distribution, ACTION: Notice of Intent to Prepare a through the FSIS Constituent Update, Supplemental Final Environmental transmission, and generation facilities, which is used to provide information Impact Statement. including system improvements and regarding FSIS policies, procedures, replacements required to furnish and regulations, Federal Register notices, SUMMARY: The Rural Utilities Service improve electric service in rural areas, FSIS public meetings, and other types of (RUS), an agency within the U.S. as well as demand side management, information that could affect or would Department of Agriculture (USDA), energy conservation programs, and on- be of interest to constituents and intends to prepare a supplemental final grid and off-grid renewable energy stakeholders. The Constituent Update is environmental impact statement (SFEIS) systems. communicated via Listserv, a free to update information in the Department GVEA is a not-for-profit cooperative electronic mail subscription service for of Energy’s (DOE’s) ‘‘Final formed in 1946 with financing from industry, trade groups, consumer Environmental Impact Statement for the REA to provide electric service to rural interest groups, health professionals, Proposed Healy Clean Coal Project’’ communities in interior Alaska. Because and other individuals who have asked (FEIS), completed in 1993. The FEIS GVEA is an RUS borrower, RUS holds to be included. The Update is also evaluated potential impacts to the liens on GVEA assets and transfers of available on the FSIS Web page. In human environment from DOE’s borrower assets in which RUS holds an addition, FSIS offers an electronic mail proposal to partially fund the Healy interest require lien accommodations. subscription service which provides Clean Coal Project (HCCP) in AIDEA provides support for the Alaska automatic and customized access to cooperation with the Alaska Industrial Energy Authority whose mission is to selected food safety news and Development and Export Authority reduce the cost of energy in Alaska. information. This service is available at (AIDEA). The DOE published a Record AIDEA partially funded HCCP in http://www.fsis.usda.gov/ of Decision for HCCP in 1994, and in cooperation with DOE’s Clean Coal News_&_Events/Email_Subscription/. 1997 Healy Unit #2 was constructed as Technology Program. AIDEA currently Options range from recalls to export a major modification to the existing owns Healy Unit #2 and wishes to sell information to regulations, directives Healy power plant, now known as Healy it to GVEA. and notices. Customers can add or Unit #1. Healy Unit #1 is a 25 megawatt RUS’s predecessor, REA, was a delete subscriptions themselves, and (MW) coal-fired boiler that has been cooperating agency on DOE’s FEIS for have the option to password protect owned and operated by Golden Valley HCCP, because it had administrative their accounts. Electric Association (GVEA) since 1967. actions related to its lien interests in USDA Nondiscrimination Statement Healy Unit #2 is a 50 MW coal-fired GVEA holdings. Recently, AIDEA and steam generator owned by AIDEA, GVEA reached an agreement for GVEA The U.S. Department of Agriculture which underwent test operation for two to purchase Unit #2. Subsequent to the (USDA) prohibits discrimination in all years as part of DOE’s Clean Coal transfer of ownership, GVEA’s its programs and activities on the basis Technology Program. Unit #2 has been subsidiary, Tri-Valley Electrical of race, color, national origin, gender, in warm layup since late 1999. Cooperative (Tri-VEC), would begin religion, age, disability, political beliefs, DATES: The Draft SFEIS is scheduled for generating electrical power for sexual orientation, and marital or family publication in February 2013. A notice commercial use in GVEA’s service status. (Not all prohibited bases apply to of availability will be published in the territory. all programs.) Federal Register announcing the review GVEA proposes to install additional Persons with disabilities who require period of the SFEIS. emission controls to both Unit #1 and alternative means for communication of ADDRESSES: You may submit comments Unit #2 and to operate Unit #2 for the program information (Braille, large on the SFEIS by any of the following remainder of the plant’s operational life. print, audiotape, etc.) should contact methods: Mail: Deirdre M. Remley, GVEA plans to request financial USDA’s Target Center at 202–720–2600 Environmental Protection Specialist, assistance from RUS to purchase and (voice and TTY). RUS, Water and Environmental install additional emission control devices. Additionally, actions GVEA To file a written complaint of Programs, Engineering and may request from RUS include any or discrimination, write USDA, Office of Environmental Staff, 1400 Independence Avenue SW., Stop 1571, all of the following: the Assistant Secretary for Civil Rights, • 1400 Independence Avenue SW., Washington, DC 20250–1571; Approve a Power Sales Agreement Washington, DC 20250–9410 or call Telephone: (202) 720–9640; or email: from Tri-VEC to GVEA as required 202–720–5964 (voice and TTY). USDA [email protected]. under Section 5(c) of RUS Loan Contract dated February 2, 2004 between GVEA is an equal opportunity provider and FOR FURTHER INFORMATION CONTACT: employer. and the United States of America. Deirdre Remley: (202) 720–9640, • Approve a release of RUS’s existing Done at Washington, DC, on: December 26, [email protected]. lien on the HCCP site at the time of its 2012. SUPPLEMENTARY INFORMATION: RUS sale to Tri-VEC from GVEA, as provided Alfred V. Almanza, makes loans and loan guarantees to to RUS under the Restated Mortgage and Administrator. finance new infrastructure and upgrades Security Agreement dated February 2, [FR Doc. 2012–31556 Filed 1–2–13; 8:45 am] to existing facilities in the areas of 2004, between GVEA and the United BILLING CODE 3410–DM–P electricity, telecommunications, and States of America.

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• Providing financial assistance to Administration, International Trade following Harmonized Tariff Schedule GVEA or Tri-VEC for purchase and Administration, U.S. Department of of the United States (‘‘HTSUS’’) installation of emission control Commerce, 14th Street and Constitution subheadings: 7306.30.10.00, equipment. Avenue NW., Washington, DC 20230; 7306.30.50.25, 7306.30.50.32, As applicable, the SFEIS will telephone: (202) 482–4161. 7306.30.50.40, 7306.30.50.55, document changes in the affected SUPPLEMENTARY INFORMATION: 7306.30.50.85, and 7306.30.50.90. environment and environmental Although the HTSUS subheadings are consequences that may have occurred Background provided for convenience and customs since the FEIS was published in 1993. On December 5, 2012, pursuant to 19 purposes, our written description of the The FEIS is available on GVEA’s Web CFR 351.224(c), Borusan alleged that the scope of this proceeding is dispositive.7 site at http://www.gvea.com/energy/ Department committed a ministerial Amended Final Results of Review hccp, and the SFEIS will incorporate error and requested that the Department this document by reference and include correct this error.3 Specifically, Borusan After analyzing Borusan’s comments, only those topics that have changed alleged that the margin program we have determined, in accordance with since the FEIS was finalized. contains a programming error in section 751(h) of Act and 19 CFR Dated: December 4, 2012. identifying the month of sale for U.S. 351.224, that the Department made a Mark S. Plank, sales with the result that U.S. sales are ministerial error in the calculation for Borusan regarding the assignment of the Director, Engineering and Environmental matched first to home market sales in a Staff, USDA/Rural Utilities Service. month outside of the 90–60 day sales month for U.S. and home market 4 sales.8 In particular, the Department [FR Doc. 2012–31643 Filed 1–2–13; 8:45 am] window. On December 10, 2012, U.S. Steel correctly stated in the final results that, BILLING CODE P Corporation (U.S. Steel) submitted consistent with our practice, we comments on Borusan’s ministerial implemented certain changes to include error allegation.5 In its submission, U.S. home market sales starting on November DEPARTMENT OF COMMERCE Steel contends that, if the Department 1, 2009; however, in so doing, we did not implement these changes to the U.S. International Trade Administration accepts Borusan’s proposed changes to the margin calculations, the Department sales data such that sales made in [A–489–501] also should make an additional contemporaneous months in the home modification to the margin program to market and U.S. market would be Circular Welded Carbon Steel Pipes ensure that the targeted dumping matched for calculation of the weighted and Tubes From Turkey; Amended analysis is performed correctly.6 average dumping margin.9 Therefore, Final Results of Antidumping Duty the Department finds that it made a Administrative Review; 2010 to 2011 Scope of the Order clerical error when it inadvertently The products covered by the order failed to subtract home market sales AGENCY: Import Administration, prices from U.S. sales prices made in International Trade Administration, include circular welded non-alloy steel contemporaneous months to calculate Department of Commerce. pipes and tubes, of circular cross- section, not more than 406.4 millimeters the weighted-average dumping margin. SUMMARY: On December 6, 2012, the (16 inches) in outside diameter, The Department also finds that U.S. Department of Commerce (the regardless of wall thickness, surface Steel is correct that the margin program Department) published its final results finish (black, galvanized, or painted), or must be updated to ensure that the of the administrative review of the end finish (plain end, beveled end, targeted dumping analysis is performed antidumping duty order on circular threaded and coupled). Those pipes and correctly.10 The Department has now welded carbon steel pipes and tubes tubes are generally known as standard corrected these errors and, from Turkey for the period of review pipe, though they may also be called consequently, Borusan’s final weighted- (POR) May 1, 2010, through April 30, structural or mechanical tubing in average dumping margin. 1 2011. We are amending our final certain applications. All carbon steel In accordance with section 751(h) of results to correct a ministerial error pipes and tubes within the physical the Act, we are amending the final made in the calculation of the weighted- description outlined above are included results of the antidumping duty average dumping margin for the in the scope of this order, except for line 2 administrative review of circular Borusan Group (Borusan), pursuant to pipe, oil country tubular goods, boiler welded carbon steel pipes and tubes section 751(h) of the Tariff Act of 1930, tubing, cold-drawn or cold-rolled from Turkey for the period May 1, 2010, as amended (the Act). mechanical tubing, pipe and tube through April 30, 2011. As a result of DATES: Effective Date: January 3, 2013. hollows for redraws, finished correcting the ministerial error FOR FURTHER INFORMATION CONTACT: scaffolding, and finished rigid conduit. discussed above, the following Christopher Hargett, AD/CVD Imports of these products are weighted-average dumping margin Operations, Office 3, Import currently classifiable under the applies:

1 See Circular Welded Carbon Steel Pipes and 3 See Letter to the Department from Borusan Turkey: Notice of Final Results of Antidumping Tubes from Turkey; Final Results of Antidumping entitled ‘‘Ministerial Error Allegation Submitted on Duty Administrative Review, 76 FR 76939 Duty Administrative Review; 2010 to 2011, 77 FR Behalf of Borusan Mannesmann Boru Sanayi ve (December 9, 2011). 72818 (December 6, 2012) (Final Results). Ticaret A.S.,’’ dated December 5, 2012. 8 See Analysis Memorandum for the Borusan 2 The Borusan Group includes the following 4 See id. at 2–3. Group, dated concurrently with this notice entities: Borusan Mannesmann Boru Sanayi ve 5 See Letter to the Department from U.S. Steel Ticaret A.S., Borusan Birlesik Boru Fabrikalari San (Borusan Calc Memo). regarding the ministerial error allegation submitted ve Tic., Borusan Istikbal Ticaret T.A.S., Boruson 9 See Final Results, 77 FR at 72818, and Gemlik Boru Tesisleri A.S., Borusan Ihracat Ithalat by Borusan, dated December 10, 2012. accompanying Issues and Decision Memorandum at 6 ve Dagitim A.S., Borusan Ithicat ve Dagitim A.S., See id. at 2. Comment 2. 7 and Tubeco Pipe and Steel Corporation. See Final For the complete scope of this review, see 10 See Borusan Calc Memo. Results, 77 FR at 72818. Certain Welded Carbon Steel Pipe and Tube From

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Final weighted-average Amended final weighted- Exporter/ dumping margin average dumping margin manufacturer (percent) (percent)

Borusan ...... 6.05 3.55

Assessment for consumption, on or after the DEPARTMENT OF COMMERCE Pursuant to section 751(a)(2)(A) of the publication date, as provided by section International Trade Administration Act and 19 CFR 351.212(b), the 751(a)(2)(C) of the Act: (1) For Borusan, the cash deposit rate will be the rate Department will determine, and CBP Antidumping or Countervailing Duty listed above; (2) for all other companies, shall assess, antidumping duties on all Order, Finding, or Suspended the cash deposit rate will be the appropriate entries of subject Investigation; Advance Notification of merchandise in accordance with the respective rates established in the final Sunset Reviews amended final results of this review. results.12 These cash deposit The Department intends to issue requirements, when imposed, shall AGENCY: Import Administration, assessment instructions to CBP 15 days remain in effect until further notice. International Trade Administration, after the date of publication of these Department of Commerce. amended final results of review. Notification to Importers For assessment purposes, the Background This notice serves as a final reminder Department applied the assessment rate Every five years, pursuant to section to importers of their responsibility calculation method adopted in 751(c) of the Tariff Act of 1930, as Antidumping Proceedings: Calculation under 19 CFR 351.402(f)(2) to file a amended (‘‘the Act’’), the Department of of the Weighted-Average Dumping certificate regarding the reimbursement Commerce (‘‘the Department’’) and the Margin and Assessment Rate in Certain of antidumping duties prior to International Trade Commission Antidumping Proceedings: Final liquidation of the relevant entries automatically initiate and conduct a Modification, 77 FR 8101 (February 14, during this review period. Failure to review to determine whether revocation 2012). comply with this requirement could of a countervailing or antidumping duty We calculated importer-specific rates result in the Secretary’s presumption order or termination of an investigation based on the ratio of the total amount of that reimbursement of antidumping suspended under section 704 or 734 of dumping calculated for the examined duties occurred and the subsequent the Act would be likely to lead to sales for a given importer to the total increase in antidumping duties by the continuation or recurrence of dumping entered value of such sales. If an amount of antidumping duties or a countervailable subsidy (as the case importer-specific assessment rate is zero reimbursed. may be) and of material injury. or de minimis (i.e., less than 0.50 Upcoming Sunset Reviews for February percent), the Department will instruct Notification to Interested Parties 2013 CBP to liquidate that importer’s entries This notice serves as the only The following Sunset Reviews are of subject merchandise without regard reminder to parties subject to to antidumping duties, in accordance scheduled for initiation in February administrative protective order (‘‘APO’’) with 19 CFR 351.106(c)(2). 2013 and will appear in that month’s The Department clarified its of their responsibility concerning the Notice of Initiation of Five-Year Sunset ‘‘automatic assessment’’ regulation on disposition of proprietary information Review. May 6, 2003.11 disclosed under APO in accordance This clarification will Antidumping Duty Proceedings apply to entries of subject merchandise with 19 CFR 351.305(a)(3). Timely during the POR produced by companies written notification of the return or Sodium Hexametaphosphate from included in these amended final results destruction of APO materials or China (A–570–908) (1st Review) conversion to judicial protective order is of review for which the reviewed Department Contact companies did not know their hereby requested. Failure to comply merchandise was destined for the with the regulations and the terms of an Jennifer Moats (202) 482–5047 United States. In such instances, we will APO is a sanctionable violation. Countervailing Duty Proceedings instruct CBP to liquidate unreviewed We are issuing and publishing these No Sunset Review of countervailing entries at the country-specific, all-others amended final results of administrative duty orders is scheduled for initiation in rate established in the less-than-fair- review and notice in accordance with February 2013. value (‘‘LTFV’’) investigation if there is sections 751(a)(1) and (h), and 777(i)(1) no rate for the intermediate of the Act. Suspended Investigations company(ies) involved in the Dated: December 26, 2012. No Sunset Review of suspended transaction. investigations is scheduled for initiation Lynn Fischer Fox, Cash Deposit Requirements in February 2013. Deputy Assistant Secretary for Policy and The following cash deposit The Department’s procedures for the Negotiations. conduct of Sunset Reviews are set forth requirements will be effective upon [FR Doc. 2012–31638 Filed 1–2–13; 8:45 am] publication of this notice of amended in 19 CFR 351.218. Guidance on final results of the administrative review BILLING CODE 3510–DS–P methodological or analytical issues for all shipments of subject merchandise relevant to the Department’s conduct of entered or withdrawn from warehouse, Sunset Reviews is set forth in the Department’s Policy Bulletin 98.3— 11 See Antidumping and Countervailing Duty Policies Regarding the Conduct of Five- Proceedings: Assessment of Antidumping Duties, 68 year (‘‘Sunset’’) Reviews of FR 23954 (May 6, 2003). 12 See Final Results, 77 FR at 72820. Antidumping and Countervailing Duty

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Orders; Policy Bulletin, 63 FR 18871 Commerce (‘‘the Department’’) conduct respondents in the Wooden Bedroom (April 16, 1998). The Notice of Initiation an administrative review of that Furniture review in the publication of of Five-Year (‘‘Sunset’’) Reviews antidumping or countervailing duty the initiation Federal Register notice. provides further information regarding order, finding, or suspended In the event the Department decides what is required of all parties to investigation. it is necessary to limit individual participate in Sunset Reviews. All deadlines for the submission of examination of respondents and Pursuant to 19 CFR 351.103(c), the comments or actions by the Department conduct respondent selection under Department will maintain and make discussed below refer to the number of section 777A(c)(2) of the Act: available a service list for these calendar days from the applicable In general, the Department has found proceedings. To facilitate the timely starting date. that determinations concerning whether particular companies should be preparation of the service list(s), it is Respondent Selection requested that those seeking recognition ‘‘collapsed’’ (i.e., treated as a single as interested parties to a proceeding In the event the Department limits the entity for purposes of calculating contact the Department in writing number of respondents for individual antidumping duty rates) require a within 10 days of the publication of the examination for administrative reviews substantial amount of detailed Notice of Initiation. initiated pursuant to requests made for information and analysis, which often Please note that if the Department the orders identified below, except for require follow-up questions and receives a Notice of Intent to Participate the review of the antidumping duty analysis. Accordingly, the Department from a member of the domestic industry order on Wooden Bedroom Furniture will not conduct collapsing analyses at within 15 days of the date of initiation, from the People’s Republic of China (A– the respondent selection phase of this the review will continue. Thereafter, 570–890), as discussed below, the review and will not collapse companies any interested party wishing to Department intends to select at the respondent selection phase unless participate in the Sunset Review must respondents based on U.S. Customs and there has been a determination to provide substantive comments in Border Protection (‘‘CBP’’) data for U.S. collapse certain companies in a response to the notice of initiation no imports during the period of review. We previous segment of this antidumping later than 30 days after the date of intend to release the CBP data under proceeding (i.e., investigation, initiation. Administrative Protective Order administrative review, new shipper This notice is not required by statute (‘‘APO’’) to all parties having an APO review or changed circumstances but is published as a service to the within five days of publication of the review). For any company subject to this international trading community. initiation notice and to make our review, if the Department determined, decision regarding respondent selection or continued to treat, that company as Dated: December 5, 2012. within 21 days of publication of the collapsed with others, the Department Christian Marsh, initiation Federal Register notice. will assume that such companies Deputy Assistant Secretary for Antidumping Therefore, we encourage all parties continue to operate in the same manner and Countervailing Duty Operations. interested in commenting on respondent and will collapse them for respondent [FR Doc. 2012–31543 Filed 1–2–13; 8:45 am] selection to submit their APO selection purposes. Otherwise, the BILLING CODE 3510–DS–P applications on the date of publication Department will not collapse companies of the initiation notice, or as soon for purposes of respondent selection. thereafter as possible. The Department Parties are requested to (a) identify DEPARTMENT OF COMMERCE invites comments regarding the CBP which companies subject to review data and respondent selection within International Trade Administration previously were collapsed, and (b) five days of placement of the CBP data provide a citation to the proceeding in Antidumping or Countervailing Duty on the record of the review. which they were collapsed. Further, if Order, Finding, or Suspended If the Department limits the number companies are requested to complete of respondents selected for individual Investigation; Opportunity To Request the Quantity and Value Questionnaire examination in the administrative Administrative Review for purposes of respondent selection, in review of the antidumping duty order general each company must report AGENCY: Import Administration, on Wooden Bedroom Furniture from the volume and value data separately for International Trade Administration, People’s Republic of China (A–570– itself. Parties should not include data Department of Commerce. 890), it intends to select respondents for any other party, even if they believe FOR FURTHER INFORMATION CONTACT: based on volume data contained in they should be treated as a single entity Brenda E. Waters, Office of AD/CVD responses to quantity and value with that other party. If a company was Operations, Customs Unit, Import questionnaires since the units used to collapsed with another company or Administration, International Trade measure import quantities are not companies in the most recently Administration, U.S. Department of consistent for the HTSUS headings completed segment of this proceeding Commerce, 14th Street and Constitution identified in the scope of this case. In where the Department considered Avenue NW., Washington, DC 20230, the past the Department has limited the collapsing that entity, complete quantity telephone: (202) 482–4735. number of quantity and value and value data for that collapsed entity questionnaires issued in the Wooden must be submitted. Background Bedroom Furniture review based on Each year during the anniversary CBP data. However, we have received Deadline for Withdrawal of Request for month of the publication of an comments concerning this practice and Administrative Review antidumping or countervailing duty are considering the respondent selection Pursuant to 19 CFR 351.213(d)(1), a order, finding, or suspended process and information that must be party that has requested a review may investigation, an interested party, as submitted by all respondents. We ask withdraw that request within 90 days of defined in section 771(9) of the Tariff that parties wishing to comment on this the date of publication of the notice of Act of 1930, as amended (‘‘the Act’’), process or to the petitioner’s December initiation of the requested review. The may request, in accordance with 19 CFR 3, 2012 submission do so by January 31, regulation provides that the Department 351.213, that the Department of 2013. We will detail all requirements for may extend this time if it is reasonable

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to do so. In order to provide parties demonstrates that an extraordinary parties will be aware of the manner in additional certainty with respect to circumstance has prevented it from which the Department intends to when the Department will exercise its submitting a timely withdrawal request. exercise its discretion in the future. discretion to extend this 90-day Determinations by the Department to Opportunity to Request a Review: Not deadline, interested parties are advised extend the 90-day deadline will be later than the last day of January 2013,1 that, with regard to reviews requested made on a case-by-case basis. interested parties may request on the basis of anniversary months on The Department is providing this administrative review of the following or after January 2013, the Department notice on its Web site, as well as in its orders, findings, or suspended does not intend to extend the 90-day ‘‘Opportunity to Request Administrative investigations, with anniversary dates in deadline unless the requestor Review’’ notices, so that interested January for the following periods:

Period of Review

Antidumping Duty Proceedings BRAZIL: Prestressed Concrete Steel Wire Strand A–351–837 ...... 1/1/12–12/31/12 INDIA: Prestressed Concrete Steel Wire Strand A–533–828 ...... 1/1/12–12/31/12 MEXICO: Prestressed Concrete Steel Wire Strand A–201–831 ...... 1/1/12–12/31/12 REPUBLIC OF KOREA: Prestressed Concrete Steel Wire Strand A–580–852 ...... 1/1/12–12/31/12 THAILAND: Prestressed Concrete Steel Wire Strand A–549–820 ...... 1/1/12–12/31/12 SOUTH AFRICA: Ferrovanadium A–791–815 ...... 1/1/12–12/31/12 THE PEOPLE’S REPUBLIC OF CHINA: Crepe Paper Products A–570–895 ...... 1/1/12–12/31/12 Ferrovanadium A–570–873 ...... 1/1/12–12/31/12 Folding Gift Boxes A–570–866 ...... 1/1/12–12/31/12 Multilayered Wood Flooring 2 A–570–970 ...... 5/26/11—11/30/12 Potassium Permanganate A–570–001 ...... 1/1/12–12/31/12 Wooden Bedroom Furniture A–570–890 ...... 1/1/12–12/31/12 Countervailing Duty Proceedings ARGENTINA: Honey 3 C–357–813 ...... 1/1/12–8/1/12 THE PEOPLE’S REPUBLIC OF CHINA: Certain Oil Country Tubular Goods C–570–944 ...... 1/1/12–12/31/12 Circular Welded Carbon Quality Steel Line Pipe C–570–936 ...... 1/1/12–12/31/12 Suspension Agreements MEXICO: Fresh Tomatoes A–201–820 ...... 1/1/12–12/31/12 RUSSIA: Certain Cut-To-Length Carbon Steel Plate A–821–808 ...... 1/1/12–12/31/12

In accordance with 19 CFR the interested party must state has clarified its practice with respect to 351.213(b), an interested party as specifically, on an order-by-order basis, the collection of final antidumping defined by section 771(9) of the Act may which exporter(s) the request is duties on imports of merchandise where request in writing that the Secretary intended to cover. intermediate firms are involved. The conduct an administrative review. For Please note that, for any party the public should be aware of this both antidumping and countervailing Department was unable to locate in clarification in determining whether to duty reviews, the interested party must prior segments, the Department will not request an administrative review of specify the individual producers or accept a request for an administrative merchandise subject to antidumping exporters covered by an antidumping review of that party absent new findings and orders. See also the Import finding or an antidumping or information as to the party’s location. Administration Web site at http:// Moreover, if the interested party who countervailing duty order or suspension ia.ita.doc.gov. files a request for review is unable to agreement for which it is requesting a locate the producer or exporter for All requests must be filed review. In addition, a domestic which it requested the review, the electronically in Import interested party or an interested party interested party must provide an Administration’s Antidumping and described in section 771(9)(B) of the Act explanation of the attempts it made to Countervailing Duty Centralized must state why it desires the Secretary locate the producer or exporter at the Electronic Service System (‘‘IA to review those particular producers or same time it files its request for review, ACCESS’’) on the IA ACCESS Web site exporters.4 If the interested party in order for the Secretary to determine at http://iaaccess.trade.gov. See intends for the Secretary to review sales if the interested party’s attempts were Antidumping and Countervailing Duty of merchandise by an exporter (or a reasonable, pursuant to 19 CFR Proceedings: Electronic Filing producer if that producer also exports 351.303(f)(3)(ii). Procedures; Administrative Protective merchandise from other suppliers) As explained in Antidumping and Order Procedures, 76 FR 39263 (July 6, which were produced in more than one Countervailing Duty Proceedings: 2011). Further, in accordance with 19 country of origin and each country of Assessment of Antidumping Duties, 68 CFR 351.303(f)(l)(i), a copy of each origin is subject to a separate order, then FR 23954 (May 6, 2003), the Department request must be served on the petitioner

1 Or the next business day, if the deadline falls Flooring from PRC (A–570–970) incorrectly. The 4 If the review request involves a non-market on a weekend, federal holiday or any other day correct period of review for this case is listed above. economy and the parties subject to the review when the Department is closed. 3 In the notice of opportunity to request request do not qualify for separate rates, all other 2 In the notice of opportunity to request administrative reviews that published on December exporters of subject merchandise from the non- 3, 2012 (77 FR 71579) the Department listed the market economy country who do not have a administrative reviews that published on December period of review for case Honey from Argentina (C– separate rate will be covered by the review as part 3, 2012 (77 FR 71579) the Department listed the 357–813) incorrectly. The correct period of review of the single entity of which the named firms are period of review for case Multilayered Wood for this case is listed above. a part.

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and each exporter or producer specified King Street, Charleston, South Carolina develop specifications, tolerances, and in the request. 29403. other requirements for devices used in The Department will publish in the FOR FURTHER INFORMATION CONTACT: Ms. retail sales of electricity for recharging Federal Register a notice of ‘‘Initiation Carol Hockert, Chief, NIST, Office of vehicles and in sub-metering of Administrative Review of Weights and Measures, 100 Bureau applications and the use of Global Antidumping or Countervailing Duty Drive, Stop 2600, Gaithersburg, MD Positioning System (GPS) devices for Order, Finding, or Suspended 20899–2600. You may also contact Ms. fare determinations in the vehicle-for- Investigation’’ for requests received by Hockert at (301) 975–5507 or by email hire industry (e.g., taxis and the last day of January 2013. If the at [email protected]. The meetings limousines). Also included are notices Department does not receive, by the last are open to the public, but a paid about efforts to establish methods of sale day of January 2013, a request for registration is required. Please see for pressurized containers and to review of entries covered by an order, NCWM Publication 15 ‘‘Interim Meeting develop test procedures for verifying the finding, or suspended investigation Agenda’’ (www.ncwm.net) to view the net contents of printer ink and toner listed in this notice and for the period meeting agendas, registration forms and cartridges. These notices are intended to identified above, the Department will hotel reservation information. make interested parties aware of these instruct CBP to assess antidumping or SUPPLEMENTARY INFORMATION: development projects and to make them countervailing duties on those entries at aware that reports on the status of the a rate equal to the cash deposit of (or Publication of this notice on the NCWM’s behalf is undertaken as a project will be given at the Interim bond for) estimated antidumping or Meeting. The notices are also presented countervailing duties required on those public service; NIST does not endorse, approve, or recommend any of the to invite the participation of entries at the time of entry, or manufacturers, experts, consumers, withdrawal from warehouse, for proposals or other information contained in this notice or in the users and others who may be interested consumption and to continue to collect in these efforts. the cash deposit previously ordered. publications of the NCWM. The NCWM is an organization of The Specifications and Tolerances For the first administrative review of Committee (S&T Committee) will any order, there will be no assessment weights and measures officials of the states, counties, and cities of the United consider proposed amendments to NIST of antidumping or countervailing duties Handbook 44, ‘‘Specifications, on entries of subject merchandise States, federal agencies, and representatives from the private sector. Tolerances, and other Technical entered, or withdrawn from warehouse, Requirements for Weighing and for consumption during the relevant These meetings bring together government officials and representatives Measuring Devices.’’ Those items provisional-measures ‘‘gap’’ period, of address weighing and measuring the order, if such a gap period is of business, industry, trade associations, and consumer organizations on subjects devices used in commercial applicable to the period of review. applications, that is, devices that are This notice is not required by statute related to the field of weights and measures technology, administration used to buy from or sell to the public but is published as a service to the or used for determining the quantity of international trading community. and enforcement. NIST participates to encourage cooperation between federal product sold among businesses. Issues Dated: December 21, 2012. agencies and the states in the on the agenda of the NCWM Laws and Christian Marsh, development of legal metrology Regulations Committee (L&R Deputy Assistant Secretary for Antidumping requirements. NIST also promotes Committee) relate to proposals to amend and Countervailing Duty Operations. uniformity among the states in laws, NIST Handbook 130, ‘‘Uniform Laws [FR Doc. 2012–31544 Filed 1–2–13; 8:45 am] regulations, methods, and testing and Regulations in the area of Legal BILLING CODE 3510–DS–P equipment that comprise the regulatory Metrology and Engine Fuel Quality’’ control of commercial weighing and and NIST Handbook 133, ‘‘Checking the measuring devices, packaged goods, and Net Contents of Packaged Goods.’’ DEPARTMENT OF COMMERCE other trade and commerce issues. NCWM Specifications and Tolerances National Institute of Standards and The following are brief descriptions of Committee Technology some of the significant agenda items that will be considered along with other The following items are proposals to amend NIST Handbook 44: National Conference on Weights and issues at the NCWM Interim Meeting. Measures 98th Interim Meeting Comments will be taken on these and Scales other issues during several public AGENCY: National Institute of Standards comment sessions. At this stage, the Item 320–1: S.6.4. Railway Track Scales and Technology, Commerce. items are proposals. This meeting also and Appendix D—Definitions ACTION: Notice. includes work sessions in which the Railway track scales are used Committees may also accept comments, throughout the country for the SUMMARY: The 2013 Interim Meeting of and where they will finalize determination of freight charges and for the National Conference on Weights and recommendations for NCWM commercial transactions for a wide Measures (NCWM) will be held January consideration and possible adoption at variety of commodities (e.g., coal, grains 27 to 30, 2013. This notice contains its 2013 Annual Meeting that will be and chemicals) totaling billions of information about significant items on held at the Seelbach Hilton Hotel dollars each year. The intent of this the NCWM Committee agendas, but located at 500 South Fourth Street in proposal is to amend NIST Handbook 44 does not include all agenda items. As a Lexington, Kentucky, on July 14–18, to recognize changes to the definition of result, the items are not consecutively 2013. The Committees may withdraw or how nominal capacity is determined for numbered. carryover items that need additional railway track scales. The new definition DATES: The meeting will be held January development. was recently developed by Committee 27 to 30, 2013. Some of the items listed below 34—Scales, of the American Railway ADDRESSES: The meeting will be held at provide notice of projects under Engineering and Maintenance-of-Way the Francis Marion Hotel located at 387 development by groups working to Association and approved for inclusion

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in the American Association of DLE or DGE in retail fuel sales would years and is used to sell the same Railroads (AAR) Scale Handbook. make it easier for consumers to make products sold in aerosol containers (e.g., Adoption of the proposed revision will price, value, and fuel economy sunscreen, wound wash, shaving cream, ensure that NIST Handbook 44 is comparisons between an equivalent liter and car products). Some BOV packages consistent with the AAR Scale or gallon of compressed natural gas and have their net contents declared in Handbook, thus, ensuring uniformity in diesel fuel. See also Item 337–2: S.1.2. terms of fluid volume. Section 10.3. state laws and regulations, which apply Compressed Natural Gas Dispensers, currently requires aerosols and similar to railway scales, that are used S.1.3.1.1., Compressed Natural Gas Used pressurized containers to disclose their extensively in interstate commerce. as an Engine Fuel, and S.5.2. Marking of net quantity in terms of weight. Because Vehicle Tank Meters Gasoline Volume Equivalent Conversion BOV containers (net contents in fluid Factor, and Item 232–1: Section 2.27. volume) are being used to sell the same Item 331–2: T.4. Product Depletion Test Retail Sales of Natural Gas Sold as a type of products dispensed from aerosol The vehicle tank meters mounted on Vehicle Fuel in the Laws and containers (net contents in weight), multi-compartment tank trucks are used Regulations Committee Agenda. consumers are unable to make value comparisons. to deliver a wide variety of fuels and Use of GPS Systems for Fare other products to businesses and Determinations—Developing Item Item 232–6: Packaged Printer Ink and consumers alike (e.g., diesel fuel, home Toner Cartridges heating fuel). A product depletion test is Item 360–6: Global Positioning Systems conducted to ensure that the for Fare Determinations in the Vehicle This proposal was originally intended performance accuracy of a meter for Hire Industry to establish a method of sale for inkjet remains within tolerance when one This item is presented to raise and toner cartridges to ensure that compartment in the tank truck empties awareness of work that is underway to consumers are informed about the net of product and the delivery is continued amend Section 5.54. ‘‘Taximeters’’ to quantity of contents of packages and so from another compartment. This incorporate specifications, tolerances, they can make value comparisons. The proposal would amend NIST Handbook user and other technical requirements original proposals would have required 44 to base the product depletion test for devices that incorporate Global manufacturers (and aftermarket refillers) tolerances on the meter’s maximum Positioning Satellite (GPS) systems, and to declare net quantities to facilitate flow rate (a marking required on all associated software commercially to both value comparison by consumers meters), rather than the marked meter compute fares or fees based upon and verification by weights and size (this marking is required for meters distance and/or time measurements. measures officials, and to ensure equity manufactured in 2009 or later). The GPS systems and applications designed between buyer and seller and fair intent of this proposal is to ensure to compute fares based upon distance competition between sellers, consistent application of the tolerances and/or time measurements are being manufacturers and refillers. At the 2012 to product depletion tests conducted on introduced into the vehicle for-hire NCWM Annual Meeting a newly formed older and newer meters. It will also industry (e.g., taxicabs, limousines) Printer Ink and Toner Cartridge eliminate an unintentional gap that across the country. Appropriate Gravimetric Package Testing Task Group allows an unreasonably large tolerance technical and device accuracy (Task Group) met to consider test to be applied to small meters. requirements must be developed for methods that could be used to verify the net contents of packages. The Task Mass Flow Meters manufacturers and users of these devices, and for weights and measures Group will report on its progress at the Item 337–1: Appendix D—Definitions: officials so that consumers can be meeting. See also Item 260–3 Diesel Liter and Diesel Gallon assured of accurate fares associated with Gravimetric Testing of Printer Ink and Equivalents of Natural Gas the transportation service provided and Toner Cartridges for more information. In 1994 both liter and gallon to enable consumers to make value Retail Sale of Electricity for Vehicle equivalents for gasoline (based on an comparisons between competing Recharging—Developing Item ‘‘average’’ equivalent energy content services. developed by the industry) were Item 270–2: Uniform Method of Sale NCWM Laws and Regulations established by the NCWM based on the Regulation, Section 2.XX. Retail Sale of Committee (L & R Committee) industry’s request to provide a means Electricity/Vehicle for consumers to make value and fuel The following items are proposals to A workgroup on retail sales of economy comparisons between amend NIST Handbook 130 or NIST electricity for vehicle recharging has compressed natural gas (CNG) and a Handbook 133: been formed to engage manufacturers, liter or gallon of gasoline in order to NIST Handbook 130—Uniform users and others involved in vehicle promote broader acceptance and use of Regulation for the Method of Sale of recharging and the weights and CNG as a vehicle fuel. This proposal Commodities measures community in helping to would establish a ‘‘diesel liter develop a proposed method of sale for equivalent (DLE)’’ and a ‘‘diesel gallon Item 231–2: Section 10.3. Aerosols and electricity sold at the retail level to equivalent (DGE)’’ and equivalent mass Similar Pressurized Containers recharge vehicles. Any stakeholder, values for these units when they are This proposal is intended to provide including vehicle and device used in retail vehicle refueling an appropriate method of sale (i.e., the manufacturers, consumers, public applications. The use of these units is to product must be offered for sale by utility commissions, weights and inform consumers that a DLE or DGE of either weight or fluid volume but not measures officials, smart grid experts, ‘‘compressed’’ or ‘‘liquefied’’ natural gas both) for packages utilizing the Bag on and all others interested in the contains approximately the same Valve (BOV) technology. BOV means a development of a method of sale for amount of energy they would receive if pressurized package where a propellant electricity and other requirements for they purchased a liter or gallon of diesel is not expelled with the product when devices use to sell electricity to recharge fuel. The submitter of this proposal the valve is activated. BOV packaging vehicles are invited to participate in this believes that adoption and use of the has been in the marketplace for many effort. In addition to method of sale

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requirements, the workgroup will Standards and Technology (NIST), will Individuals and representatives of consider proposals for specifications, meet in open session on Wednesday, organizations who would like to offer tolerances, and user requirements for February 6, 2013, from 11:00 a.m. to comments and suggestions related to the measuring devices, and possible 5:00 p.m. Eastern Time and Thursday, Committee’s affairs are invited to requirements for device security and February 7, 2013, from 8:30 a.m. to request a place on the agenda. On information posting requirements (e.g., 11:15 a.m. Eastern Time. The VCAT is February 7, approximately one-half hour information on service fees, charging composed of fifteen members appointed will be reserved in the morning for rates and how to contact the party by the Under Secretary of Commerce for public comments and speaking times responsible for the device). A work Standards and Technology who are will be assigned on a first-come, first- group report will be presented at the eminent in such fields as business, serve basis. The amount of time per meeting. research, new product development, speaker will be determined by the Uniform Engine Fuels and Automotive engineering, labor, education, number of requests received, but is Lubricants Regulation management consulting, environment, likely to be about 3 minutes each. The and international relations. exact time for public comments will be Item 237–2: Section 2.1.4. Minimum DATES: The VCAT will meet on included in the final agenda that will be Antiknock Index (AKI), Section 2.1.5. posted on the NIST Web site at http:// Minimum Motor Octane Number and Wednesday, February 6, 2013, from 11:00 a.m. to 5:00 p.m. Eastern Time www.nist.gov/director/vcat/agenda.cfm. Table 1. Minimum Antiknock Index Questions from the public will not be Requirements and Thursday, February 7, 2013, from 8:30 a.m. to 11:15 a.m. Eastern Time. considered during this period. Speakers This is a proposal to discontinue the who wish to expand upon their oral obsolete practice of altitude de-rating of ADDRESSES: The meeting will be held in statements, those who had wished to octane, to establish a national octane the Portrait Room, Administration speak, but could not be accommodated baseline, and to establish uniform Building, at NIST, 100 Bureau Drive, on the agenda, and those who were octane labeling requirements. The Gaithersburg, Maryland, 20899. Please unable to attend in person are invited to proposal will amend the Engine Fuels note admittance instructions under the submit written statements to VCAT, and Automotive Lubricants Regulation SUPPLEMENTARY INFORMATION section of NIST, 100 Bureau Drive, MS 1060, to bring it into agreement with efforts this notice. Gaithersburg, Maryland, 20899, via fax underway in the ASTM Gasoline and FOR FURTHER INFORMATION CONTACT: at 301–216–0529 or electronically by Oxygenates Subcommittee to include a Stephanie Shaw, VCAT, NIST, 100 email to [email protected]. minimum motor octane number (MON) Bureau Drive, Mail Stop 1060, All visitors to the NIST site are performance limit in its specifications Gaithersburg, Maryland 20899–1060, required to pre-register to be admitted. for gasoline. Vehicles manufactured telephone number 301–975–2667. Ms. Please submit your name, time of after 1984 include engine computer Shaw’s email address is arrival, email address and phone controls that maintain optimal [email protected]. number to Stephanie Shaw by 5:00 p.m. performance when they use gasoline Eastern Time, Thursday, January 31, SUPPLEMENTARY INFORMATION: with an octane of 87 AKI or higher. The 2013. Non-U.S. citizens must also current practice of altitude de-rating of Authority: 15 U.S.C. 278 and the Federal submit their country of citizenship, title, octane, results in octanes below 87 AKI Advisory Committee Act, as amended, 5 employer/sponsor, and address. Ms. which reduces a vehicle’s efficiency and U.S.C. App. Shaw’s email address is fuel economy. Increasingly, more The purpose of this meeting is for the [email protected] and her phone vehicles are boosted (turbocharged/ VCAT to review and make number is 301–975–2667. supercharged) eliminating the intake air recommendations regarding general Dated: December 28, 2012. effects caused by altitude. Additionally, policy for NIST, its organization, its Willie E. May, consumers using gasoline with an budget, and its programs within the Associate Director for Laboratory Programs. octane AKI below 87 may void their framework of applicable national [FR Doc. 2012–31597 Filed 1–2–13; 8:45 am] vehicle warranty. policies as set forth by the President and BILLING CODE 3510–13–P Dated: December 28, 2012. the Congress. The agenda will include Willie E. May, an update on NIST followed by Associate Director for Laboratory Programs. presentations and discussions on the DEPARTMENT OF COMMERCE [FR Doc. 2012–31596 Filed 1–2–13; 8:45 am] Administration’s priorities for 2013 in BILLING CODE 3510–13–P science and technology and in United States Patent and Trademark manufacturing, NIST’s safety metrics, Office and NIST’s activities related to the [Docket No. PTO–P–2012–0052] DEPARTMENT OF COMMERCE Manufacturing Extension Partnership and the Baldrige Performance Request for Comments and Notice of National Institute of Standards and Excellence Program. The VCAT Roundtable Events for Partnership for Technology Subcommittee on Safety will review its Enhancement of Quality of Software- recommendations for deliberation by Related Patents Visiting Committee on Advanced the Committee. The meeting will also Technology include presentations and discussions AGENCY: United States Patent and AGENCY: National Institute of Standards on the VCAT agenda for 2013 and initial Trademark Office, Commerce. and Technology, Department of observations, findings, and ACTION: Request for comments. Notice of Commerce. recommendations for the 2012 VCAT meetings. ACTION: Notice of Public Meeting. Annual Report. The agenda may change to accommodate Committee business. SUMMARY: The United States Patent and SUMMARY: The Visiting Committee on The final agenda will be posted on the Trademark Office (USPTO) seeks to Advanced Technology (VCAT or NIST Web site at http://www.nist.gov/ form a partnership with the software Committee), National Institute of director/vcat/agenda.cfm. community to enhance the quality of

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software-related patents (Software The New York City event will be held approximate time that the speaker’s Partnership). Members of the public are at: New York University, Henry presentation is scheduled to begin. invited to participate. The Software Kaufman Management Center, Faculty Speakers must then send the final Partnership will be an opportunity to Lounge, Room 11–185, 44 West 4th St., electronic copies of their presentations bring stakeholders together through a New York, NY 10012. in Microsoft PowerPoint or Microsoft series of roundtable discussions to share Comments: Written comments should Word to ideas, feedback, experiences, and be sent by electronic mail addressed to [email protected] by insights on software-related patents. To [email protected]. February 1, 2013, so that the commence the Software Partnership and Comments may also be submitted by presentation can be displayed at the to provide increased opportunities for mail addressed to: Mail Stop events. all to participate, the USPTO is Comments—Patents, Commissioner for The USPTO plans to make the sponsoring two roundtable events with Patents, P.O. Box 1450, Alexandria, VA roundtable events available via Web identical agendas, one in Silicon Valley, 22313–1450, marked to the attention of cast. Web cast information will be and the other in New York City. Each Seema Rao, Director Technology Center available on the USPTO’s Internet Web roundtable event will provide a forum 2100. Although comments may be site before the events. The written for an informal and interactive submitted by mail, the USPTO prefers to comments and list of the event discussion of topics relating to patents receive comments via the Internet. participants and their affiliations will be that are particularly relevant to the The comments will be available for posted on the USPTO’s Internet Web software community. While public public inspection at the Office of the site at www.uspto.gov. attendees will have the opportunity to Commissioner for Patents, located in If you need special accommodations provide their individual input, group Madison East, Tenth Floor, 600 Dulany due to a disability, please inform the consensus advice will not be sought. Street, Alexandria, Virginia, and will be contact persons identified below. available via the USPTO Internet Web For these initial roundtable events, FOR FURTHER INFORMATION CONTACT: site at http://www.uspto.gov. Because this notice sets forth several topics to Seema Rao, Director Technology Center comments will be available for public begin the Software Partnership 2100, by telephone at 571–272–3174, or inspection, information that is not discussion. The first topic relates to how by electronic mail message at desired to be made public, such as an to improve clarity of claim boundaries [email protected] or Matthew J. address or phone number, should not be that define the scope of patent Sked, Legal Advisor, by telephone at included in the comments. Parties who protection for claims that use functional (571) 272–7627, or by electronic mail would like to rely on confidential message at [email protected]. language. The second topic requests that information to illustrate a point are the public identify additional topics for requested to summarize or otherwise SUPPLEMENTARY INFORMATION: future discussion by the Software submit the information in a way that I. Purpose of Notice: This notice is Partnership. The third topic relates to a will permit its public disclosure. directed to announcing the Software forthcoming Request for Comments on Registration: Two separate roundtable Partnership which is a cooperative effort Preparation of Patent Applications and events will occur, with the first in between the USPTO and the software offers an opportunity for oral Silicon Valley and the second event in community to explore ways to enhance presentations on the Request for New York City. Registration is required, the quality of software-related patents. Comments at the Silicon Valley and and early registration is recommended The Software Partnership will New York City roundtable events. because seating is limited. There is no commence with the two bi-coastal Written comments are requested in fee to register for the roundtable events, roundtable events. The initial topics response to the first two discussion and registration will be on a first-come, selected for comment and discussion topics. Written comments on the third first-served basis. Registration on the have been chosen based on input the discussion topic must be submitted as day of the event will be permitted on a USPTO has received regarding software- directed in the forthcoming Request for space-available basis beginning 30 related patents. The input has been Comments on Preparation of Patent minutes before the event. gleaned from public commentary on Applications. To register, please send an email patent quality, dialogue with stakeholders that have requested that DATES: Events: The Silicon Valley event message to will be held on Tuesday, February 12, [email protected] the USPTO take a closer look at the 2013, beginning at 9 a.m. Pacific and provide the following information: quality of software-related patents, and Standard Time (PST) and ending at 12 (1) Your name, title, and if applicable, from insight based on court cases in p.m. PST. The New York City event will company or organization, address, which software-related patents have be held on Wednesday, February 27, phone number, and email address; (2) been the subject of litigation. The public 2013, beginning at 9 a.m. Eastern which roundtable event you wish to is invited to provide comments on these Standard Time (e.s.t.) and ending at 12 attend (Silicon Valley or New York initial topics and to identify future p.m. e.s.t. City); and (3) if you wish to make an topics for discussion. oral presentation at the event, the II. Background on Initiative to Comments: To be ensured of specific topic or issue to be addressed Enhance Quality of Software-Related consideration, written comments must and the approximate desired length of Patents: The USPTO is continuously be received on or before March 15, 2013. your presentation. Each attendee, even seeking ways to improve the quality of No public hearing will be held. if from the same organization, must patents. A quality patent is defined, for Registration: Registration for both register separately. purposes of this notice, as a patent: (a) roundtable events is requested by The USPTO will attempt to For which the record is clear that the February 4, 2013. accommodate all persons who wish to application has received a thorough and ADDRESSES: Events: The Silicon Valley make a presentation at the roundtable complete examination, addressing all event will be held at: Stanford events. After reviewing the list of issues on the record, all examination University, Paul Brest Hall, 555 speakers, the USPTO will contact each having been done in a manner lending Salvatierra Walk, Stanford, CA 94305– speaker prior to the event with the confidence to the public and patent 2087. amount of time available and the owner that the resulting patent is most

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likely valid; (b) for which the protection initiatives, public education or constitute sufficient definiteness under granted is of proper scope; and (c) examiner training. First, written and 35 U.S.C. 112(b) in order for the claim which provides sufficiently clear notice oral comments are sought on input boundaries to be clear? In particular: to the public as to what is protected by regarding improving the clarity of claim (a) Is it necessary for the claim the claims. boundaries for software-related claims element to also recite structure Software-related patents pose unique that use functional language by focusing sufficiently specific for performing the challenges from both an examination on 35 U.S.C. 112 (b) and (f) during function? and an enforcement perspective. One of prosecution of patent applications. (b) If not, what structural disclosure is the most significant issues with software Second, written and oral comments are necessary in the specification to clearly inventions is identifying the scope of sought on future topics for the Software link that structure to the recited coverage of the patent claims, which Partnership to address. Third, oral function and to ensure that the bounds define the boundaries of the patent comments are sought on the of the invention are sufficiently property right. Software by its nature is forthcoming Request for Comments on demarcated? operation-based and is typically Preparation of Patent Applications to 3. Should claims that recite a embodied in the form of rules, the extent that the topics of that notice computer for performing certain operations, algorithms or the like. particularly pertain to software-related functions or configured to perform Unlike hardware inventions, the patents. certain functions be treated as invoking elements of software are often defined The initial topics for which the 35 U.S.C. 112(f) although the elements using functional language. While it is USPTO is requesting written and, if are not set forth in conventional means- permissible to use functional language desired, oral comments are as follows: plus-function format? in patent claims, the boundaries of the Topic 1: Establishing Clear Boundaries Topic 2: Future Discussion Topics for functional claim element must be the Software Partnership discernible. Without clear boundaries, for Claims That Use Functional patent examiners cannot effectively Language The USPTO is seeking public input ensure that the claims define over the The USPTO seeks comments on how on topics related to enhancing the prior art, and the public is not to more effectively ensure that the quality of software-related patents to be adequately notified of the scope of the boundaries of a claim are clear so that discussed at future Software Partnership patent rights. Compliance with 35 the public can understand what subject events. The topics will be used in an U.S.C. 112(b) (second paragraph prior to matter is protected by the patent claim effort to extend and expand the dialogue enactment of the Leahy-Smith America and the patent examiner can identify between the public and the USPTO Invents Act (AIA)) ensures that a claim and apply the most pertinent prior art. regarding enhancing quality of software- is definite. Specifically, comments are sought on related patents. The Software There are several ways to draft a claim the following questions. It is requested Partnership is intended to provide on- effectively using functional language that, where possible, specific claim going, interactive opportunities and a and comply with section 112(b). One examples and supporting disclosure be forum for engagement with the USPTO way is to modify the functional provided to illustrate the points made. and the public on software-related language with structure that can 1. When means-plus-function style patents. Therefore, to plan future events, perform the recited function. Another claiming under 35 U.S.C. 112(f) is used the USPTO seeks input on which topics, way is to invoke 35 U.S.C. 112(f) (sixth in software-related claims, indefinite and in what order of priority, are of paragraph pre-AIA) and employ so- claims can be divided into two distinct most interest to the public. Input called ‘‘means-plus-function’’ language. groups: claims where the specification gathered from these events, may be used Under section 112(f), an element in a discloses no corresponding structure; as the basis for internal training efforts claim for a combination may be and claims where the specification and quality initiatives. One potential expressed as a means or step for discloses structure but that structure is topic for future discussion is how performing a specified function without inadequate. In order to specify adequate determinations of obviousness or non- the recital of structure, material or acts structure and comply with 35 U.S.C. obviousness of software inventions can in support thereof, and shall be 112(b), an algorithm must be expressed be improved. Another potential topic is construed to cover the corresponding in sufficient detail to provide means to how to provide the best prior art structure, material, or acts described in accomplish the claimed function. In resources for examiners beyond the the specification and equivalents general, are the requirements of 35 body of U.S. Patents and U.S. Patent thereof. As is often the case with U.S.C. 112(b) for providing Publications. Additional topics are software-related claims, an issue can corresponding structure to perform the welcomed. arise as to whether sufficient structure claimed function typically being Another topic for which the USPTO is is present in the claim or in the complied with by applicants and are requesting oral comment at the specification, when section 112(f) is such requirements being applied roundtable events is as follows: invoked, in order to satisfy the properly during examination? In requirements of section 112(b) requiring Topic 3: Oral Presentations on particular: Preparation of Patent Applications clearly defined claim boundaries. (a) Do supporting disclosures Defining the structure can be critical to adequately define any structure In the near future, the USPTO will setting clear claim boundaries. corresponding to the claimed function? issue a Request for Comments on III. Topics for Public Comment and (b) If some structure is provided, what Preparation of Patent Applications. The Discussion at the Roundtable Events: should constitute sufficient ‘structural’ purpose of this forthcoming Request for The USPTO is seeking input on the support? Comments is to seek public input on following topics relating to enhancing (c) What level of detail of algorithm whether certain practices could or the quality of software-related patents. should be required to meet the sufficient should be used during the preparation These initial topics are intended to be structure requirement? of an application to place the the first of many topics to be explored 2. In software-related claims that do application in the best possible in a series of roundtables that may not invoke 35 U.S.C. 112(f) but do recite condition for examination and whether ultimately be used for USPTO quality functional language, what would the use of these practices would assist

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the public in determining the scope of disclose algorithms in support of to the public. The meeting necessarily the claims as well as the meaning of the computer-implemented claim includes discussions of classified claim terms in the specification. To limitations, such as C-like pseudo-code information relating to DIA’s ensure proper consideration, written or XML-like schemas for textual intelligence operations including its comments to the forthcoming Request notation and Unified Modeling support to current operations. for Comments should only be submitted Language (UML) for graphical notation. DATES: The meeting will be held on in response to that notice to Quality Dated: December 27, 2012. January 22, 2013, from 9:00 a.m. to 4:00 _ Applications [email protected]. David J. Kappos, p.m. However, registrants may make oral Under Secretary of Commerce for Intellectual ADDRESSES: The meeting will be held at presentations at the Silicon Valley and Property and Director of the United States Joint-Base Bolling-Anacostia, New York City roundtable events on the Patent and Trademark Office. Washington, DC. topics related to the forthcoming [FR Doc. 2012–31594 Filed 1–2–13; 12:09 pm] FOR FURTHER INFORMATION CONTACT: Ms. Request for Comments to the extent that BILLING CODE 3510–16–P the topics pertain to software-related Ellen M. Ardrey, (202) 231–0800, inventions. Note particularly two Designated Federal Officer, DIA Office for Congressional and Public Affairs, questions from the forthcoming Request DEPARTMENT OF DEFENSE for Comments, which are previewed Pentagon 1A874, Washington, DC below. Oral comments are requested on Office of the Secretary 20340–5100. the advantages and disadvantages of Committee’s Designated Federal applicants employing the following Federal Advisory Committee; Defense Officer: Ms. Ellen M. Ardrey, (202) 231– practices when preparing patent Intelligence Agency (DIA) Advisory 0800, DIA Office for Congressional and applications as they relate to software Board; Closed Meeting Public Affairs, Pentagon 1A874, claims. Washington, DC 20340–5100. • AGENCY: DIA, Department of Defense [email protected]. Expressly identifying clauses (DoD). within particular claim limitations for ACTION: Meeting notice. SUPPLEMENTARY INFORMATION: which the inventor intends to invoke 35 Purpose of the Meeting U.S.C. 112(f) and pointing out where in SUMMARY: Under the provisions of the the specification corresponding Federal Advisory Committee Act of For the Advisory Board to discuss structures, materials, or acts are 1972 (5 U.S.C. Appendix 2 (2001)), the DIA operations and capabilities in disclosed that are linked to the Government in the Sunshine Act of support of current intelligence identified 35 U.S.C. 112(f) claim 1976 (5 U.S.C. 552b), and 41 CFR 102– operations. limitations; and 3.10, DoD hereby announces that the Agenda • Using textual and graphical DIA Advisory Board will meet on notation systems known in the art to January 22, 2013. The meeting is closed January 22, 2013:

9:00 a.m...... Call to Order ...... Ms. Ellen M. Ardrey, Designated Federal Officer, Mrs. Mary Margaret Graham, Chaiman. 9:00 a.m...... Administrative Business. 10:00 a.m...... Classified Discussion with Director, DIA ..... LTG Michael T. Flynn, USA, Director, DIA. 11:30 a.m...... Working Lunch. 12:45 p.m...... Classified Briefing ...... DIA Staff. 1:30 p.m...... Advisory Board Work Session. 3:30 p.m...... Classified Discussion with Director, DIA ..... LTG Michael T. Flynn, USA, Director, DIA. 4:00 p.m...... Wrap-up/Adjourn.

Pursuant to 5 U.S.C. 552b, as shall be submitted to the Designated under FOR FURTHER INFORMATION amended, and 41 CFR 102–3.155, the Federal Official for the DIA Advisory CONTACT. Director, DIA, has determined that the Board. The Designated Federal Official Dated: December 28, 2012. meeting shall be closed to the public. will ensure that written statements are Aaron Siegel, The Director, DIA, in consultation with provided to the Board for its the DIA Office of the General Counsel, consideration. Written statements may Alternate OSD Federal Register Liaison Officer, Department of Defense. has determined in writing that the also be submitted in response to the public interest requires that all sessions stated agenda of planned board [FR Doc. 2012–31579 Filed 1–2–13; 8:45 am] of the Board’s meetings be closed to the meetings. Statements submitted in BILLING CODE 5001–06–P public because they include discussions response to this notice must be received of classified information and matters by the Designated Federal Officer at covered by 5 U.S.C. 552b(c)(1). least five calendar days prior to the DEPARTMENT OF EDUCATION Written Statements meeting which is the subject of this notice. Written statements received after National Advisory Committee on Pursuant to 41 CFR 102–3.105(j) and that date may not be provided or Institutional Quality and Integrity: 102–3.140, and section 10(a)(3) of the considered by the Board until its next Notice of Membership Federal Advisory Board Committee Act meeting. All submissions provided of 1972, the public or interested before that date will be presented to the AGENCY: National Advisory Committee organizations may submit written Board before the meeting that is subject on Institutional Quality and Integrity, statements at any time to the DIA of this notice. Contact information for Office of Postsecondary Education, Advisory Board regarding its missions the Designated Federal Officer is listed Department of Education. and functions. All written statements

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What is the purpose of this notice? Who are the current members of the • Anne D. Neal, J.D., President, The purpose of this notice is to list committee? American Council of Trustees and the members of the National Advisory Alumni, Washington, DC. The current members of the NACIQI • Committee on Institutional Quality and are: Cameron C. Staples, J.D., President Integrity (NACIQI). This notice is and Chief Executive Officer (CEO), New required under Section 114(e)(1) of the Members Appointed by Secretary of England Association of Schools and Higher Education Act (HEA) of 1965, as Education Arne Duncan With Terms Colleges, Bedford, Massachusetts. • amended. Expiring September 30, 2013 Larry N. Vanderhoef, Ph.D., • Jamienne S. Studley, J.D., NACIQI Chancellor Emeritus, University of What is the role of NACIQI? Chair, President and Chief Executive California—Davis, Davis, California. The NACIQI is established under Officer (CEO), Public Advocates, Inc., How can I obtain additional Section 114 of the HEA, and is San Francisco, California. information? composed of 18 members appointed— • Earl Lewis, Ph.D., Provost and (A) On the basis of the individuals’ Executive Vice President for Academic If you have any specific questions experience, integrity, impartiality, and Affairs, Emory University, Atlanta, about the NACIQI, please contact Carol good judgment; Georgia. Griffiths, Executive Director, NACIQI (B) From among individuals who are • Susan D. Phillips, Ph.D., Provost Committee, telephone (202) 219–7009, representatives of, or knowledgeable and Vice President for Academic fax (202) 502–7874, email: concerning, education and training Affairs, The State University of New [email protected], between 9:00 beyond secondary education, York at Albany, Albany, New York. a.m. and 5:00 p.m., Monday through representing all sectors and types of • Beter-Aron Shimeles, Student Friday. institutions of higher education; and, Member, Operations Coordinator, Peer Electronic Access to This Document: (C) On the basis of the individuals’ Health Exchange NYC, Brooklyn, NY. The official version of this document is technical qualifications, professional • Frank H. Wu, J.D., Chancellor and the document published in the Federal standing, and demonstrated knowledge Dean, University of California, Hastings Register. Free Internet access to the in the fields of accreditation and College of the Law, San Francisco, official edition of the Federal Register administration of higher education. California. and the Code of Federal Regulations is The NACIQI meets at least twice a year • Federico Zaragoza, Ph.D., Vice available via the Federal Digital System and provides recommendations to the Chancellor of Economic and Workforce at www.gpo.gov/fdsys. At this site you Secretary of Education pertaining to: Development, Alamo Community can view this document, as well as all • The establishment and enforcement College District, San Antonio, Texas. other documents of this Department of the standards of accrediting agencies published in the Federal Register, in Members Appointed by Speaker of the or associations under subpart 2 of part text or Adobe Portable Document House of Representatives With Terms H of Title IV, HEA. Format (PDF). To use PDF, you must Expiring September 30, 2014 • The recognition of specific have Adobe Acrobat Reader, which is accrediting agencies or associations. • Arthur J. Rothkopf, J.D., NACIQI available free at the site. • The preparation and publication of Vice-Chair, President Emeritus, You may also access documents of the the list of nationally recognized Lafayette College, Easton, Pennsylvania. Department published in the Federal accrediting agencies and associations. (Mr. Rothkopf resides in Washington, • Register by using the article search The eligibility and certification DC) feature at: www.federalregister.gov. • process for institutions of higher Arthur Keiser, Ph.D., Chancellor, Specifically, through the advanced education under Title IV of the HEA. Keiser University, Fort Lauderdale, • search feature at this site, you can limit The relationship between (1) Florida. your search to documents published by • accreditation of institutions of higher William E. Kirwan, Ph.D., the Department. education and the certification and Chancellor, University System of eligibility of such institutions, and (2) Maryland, College Park, Maryland. Dated: December 27, 2012. State licensing responsibilities with • William Pepicello, Ph.D., President, Arne Duncan, respect to such institutions. University of Phoenix, Phoenix, Secretary of Education. • Any other advisory functions Arizona. [FR Doc. 2012–31620 Filed 1–2–13; 8:45 am] relating to accreditation and • Carolyn G. Williams, Ph.D., BILLING CODE 4000–01–P institutional eligibility that the President Emeritus, Bronx Community Secretary may prescribe by regulation. College, City University of New York, Bronx, New York. DEPARTMENT OF ENERGY What are the terms of office for the • committee members? George T. French, Jr., Ph.D., President, Miles College, Fairfield, Federal Energy Regulatory The term of office of each member is Alabama. Commission six years, except that the terms of office for the initial members of the Committee Members Appointed by President Pro Combined Notice of Filings #1 shall be three years for members Tempore of the Senate With Terms appointed by the Secretary; four years Expiring September 30, 2016 Take notice that the Commission for members appointed by the Speaker • Bruce Cole, Ph.D., Senior Fellow, received the following electric rate of the House of Representatives; and six Hudson Institute, Washington, DC. filings: years for members appointed by the • Jill Derby, Ph.D., Governance Docket Numbers: ER10–2294–003; President Pro Tempore of the Senate. Consultant, Association of Governing ER11–3808–002; ER11–3980–002. Any member appointed to fill a vacancy Boards of Colleges and Universities. Applicants: ORNI 18 LLC, ORNI 39 occurring prior to the expiration of the • Wilfred McClay, Ph.D., SunTrust LLC, ORNI 14 LLC. term for which the member’s Bank Chair of Excellence in Humanities, Description: Notice of Non-Material predecessor was appointed is appointed University of Tennessee at Chattanooga, Change-in-Status of ORNI 18 LLC, et al. for the remainder of the term. Chattanooga, Tennessee. Filed Date: 12/21/12.

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Accession Number: 20121221–5316. Description: Updated Market Power Comments Due: 5 p.m. ET 1/11/13. Comments Due: 5 p.m. ET 1/11/13. Analysis of AV Solar Ranch 1, LLC, et Docket Numbers: ER13–616–000. Docket Numbers: ER10–3063–001. al. for the Southwest Power Pool Inc. Applicants: Pacific Gas and Electric Applicants: Green Country Energy, Region. Company. LLC. Filed Date: 12/21/12. Description: Existing Transmission Description: Green Country Energy, Accession Number: 20121221–5329. Contract (ETC) Rate Filing 2013 to be LLC submits Triennial Market Power Comments Due: 5 p.m. ET 2/19/13. effective 3/1/2013. Update for the Southwest Power Pool, Docket Numbers: ER12–2701–001. Filed Date: 12/21/12. Inc. Region. Applicants: Pacific Gas and Electric Accession Number: 20121221–5258. Filed Date: 12/21/12. Company. Comments Due: 5 p.m. ET 1/11/13. Accession Number: 20121221–5186. Description: Transmission Owner Docket Numbers: ER13–616–001. Comments Due: 5 p.m. ET 2/19/13. Rate Case 2013 (TO14) Compliance Applicants: Pacific Gas and Electric Docket Numbers: ER12–574–000. Filing to be effective 5/1/2013. Company. Applicants: ITC Midwest LLC. Filed Date: 12/21/12. Description: Existing Transmission Description: Filing of a Refund Report Accession Number: 20121221–5070. Contract (ETC) Rate Filing 2013, First to be effective N/A. Comments Due: 5 p.m. ET 1/11/13. Amendment to be effective 3/1/2013. Filed Date: 12/21/12. Docket Numbers: ER13–263–001. Filed Date: 12/21/12. Accession Number: 20121221–5148. Applicants: Midwest Independent Accession Number: 20121221–5301. Comments Due: 5 p.m. ET 1/11/13. Transmission System Operator, Inc. Comments Due: 5 p.m. ET 1/11/13. Docket Numbers: ER12–718–003. Description: 12–21–12 Attachment Docket Numbers: ER13–616–002. Applicants: PJM Interconnection, MM Amendment to be effective 1/1/ Applicants: Pacific Gas and Electric L.L.C. and New York Independent 2013. Company. System Operator, Inc. Filed Date: 12/21/12. Description: Existing Transmission Description: Joint Waiver Request of Accession Number: 20121221–5302. Contract (ETC) Rate Filing 2013, Second PJM Interconnection, L.L.C. and New Comments Due: 5 p.m. ET 1/11/13. Amendment to be effective 3/1/2013. York Independent System Operator, Inc. Docket Numbers: ER13–286–001. Filed Date: 12/21/12. Filed Date: 12/24/12. Applicants: AEP Generating Accession Number: 20121221–5303. Accession Number: 20121224–5111. Company. Comments Due: 5 p.m. ET 1/11/13. Comments Due: 5 p.m. ET 1/4/13. Description: Unit Power Agreements Docket Numbers: ER13–617–000. Docket Numbers: ER12–2178–003; Amendment of Pending to be effective Applicants: Shooting Star Wind ER10–2172–014; ER11–2016–009; 12/31/2012. Project, LLC. ER10–2184–014; ER10–2183–011; Filed Date: 12/21/12. Description: Compliance Filing of ER10–1048–011; ER10–2176–015; Accession Number: 20121221–5098. Revised Market-Based Rate Tariff to be ER10–2192–014; ER11–2056–008; Comments Due: 5 p.m. ET 1/11/13. effective 1/1/2013. Filed Date: 12/21/12. ER10–2178–014; ER10–2174–014; Docket Numbers: ER13–534–001. ER11–2014–011; ER11–2013–011; Accession Number: 20121221–5267. Applicants: Mammoth One, LLC. Comments Due: 5 p.m. ET 1/11/13. ER10–3308–013; ER10–1020–010; Description: Mammoth One LLC ER10–1145–010; ER10–1144–009; Amendment to Petition to be effective 2/ Docket Numbers: ER13–618–000. ER10–1078–010; ER10–1080–010; 1/2013. Applicants: WPS Westwood ER11–2010–011 ER10–1081–010; ER10– Filed Date: 12/21/12. Generation, LLC. Description: Notice of Non-Material 2180–014; ER11–2011–010; ER12–2528– Accession Number: 20121221–5173. Change to be effective 12/20/2012. 002; ER11–2009–010; ER10–1143–010; Comments Due: 5 p.m. ET 1/11/13. ER12–1829–003 ER11–2007–009; ER12– Filed Date: 12/21/12. 1223–008; ER11–2005–011. Docket Numbers: ER13–613–000. Accession Number: 20121221–5272. Applicants: AV Solar Ranch 1, LLC, Applicants: Pacific Gas and Electric Comments Due: 5 p.m. ET 1/11/13. Baltimore Gas and Electric Company, Company. Docket Numbers: ER13–619–000. Cassia Gulch Wind Park, CER Description: Transmission Access Applicants: PacifiCorp. Generation, LLC, CER Generation II, Charge Balancing Account Adjustment Description: BPA General Transfer LLC, Commonwealth Edison Company, (TACBAA) 2013 to be effective 5/1/ Agreement (West) to be effective 12/31/ Constellation Energy Commodities 2013. 2012. Group, Inc, Constellation Energy Filed Date: 12/21/12. Filed Date: 12/21/12. Commodities Group Maine, LLC, Accession Number: 20121221–5114. Accession Number: 20121221–5284. Constellation Mystic Power, LLC, Comments Due: 5 p.m. ET 1/11/13. Comments Due: 5 p.m. ET 1/11/13. Constellation NewEnergy, Inc., Docket Numbers: ER13–614–000. Docket Numbers: ER13–620–000. Constellation Power Source Generation, Applicants: Kincaid Generation, Applicants: Northern States Power Inc., Cow Branch Wind Power, L.L.C., L.L.C. Company, a Wisconsin corporation. CR Clearing, LLC, Criterion Power Description: Initial Rate Schedules Description: Partners, LLC, Exelon Framingham LLC, (35.12) to be effective 3/1/2013. 20121221_G3_Bloomer_ESA to be Exelon Generation Company, LLC, Filed Date: 12/21/12. effective 12/21/2012. Exelon New Boston, LLC, Exelon West Accession Number: 20121221–5215. Filed Date: 12/24/12. Medway, LLC, Exelon Wind 4, LLC, Comments Due: 5 p.m. ET 1/11/13. Accession Number: 20121224–5000. Handsome Lake Energy, LLC, Harvest Docket Numbers: ER13–615–000. Comments Due: 5 p.m. ET 1/14/13. WindFarm, LLC, High Mesa Energy, Applicants: High Mesa Energy, LLC. Docket Numbers: ER13–621–000. LLC, Michigan Wind 1, LLC, PECO Description: Compliance Filing of Applicants: Pacific Gas and Electric Energy Company, Shooting Star Wind Revised Market-Based Rate Tariff to be Company. Project, LLC, Tuana Springs Energy, effective 1/1/2013. Description: CCSF IA–2013 Annual LLC, Wildcat Wind, LLC, Wind Capital Filed Date: 12/21/12. Transmission Rate Adjustment to be Holdings, LLC, Exelon Wyman, LLC. Accession Number: 20121221–5245. effective 1/1/2013.

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Filed Date: 12/24/12. requirements, interventions, protests, Filed Date: 12/13/12. Accession Number: 20121224–5001. service, and qualifying facilities filings Accession Number: 20121213–5134. Comments Due: 5 p.m. ET 1/14/13. can be found at: http://www.ferc.gov/ Comments Due: 5 p.m. ET 12/28/12. Docket Numbers: ER13–622–000. docs-filing/efiling/filing-req.pdf. For Any person desiring to intervene or Applicants: Pacific Gas and Electric other information, call (866) 208–3676 protest in any of the above proceedings Company. (toll free). For TTY, call (202) 502–8659. must file in accordance with Rules 211 Description: 2nd Amendment to Dated: December 26, 2012. and 214 of the Commission’s Extend the PG&E–SVP Interconnection Nathaniel J. Davis, Sr., Regulations (18 CFR 385.211 and Agreement to be effective 2/28/2013. 385.214) on or before 5:00 p.m. Eastern Deputy Secretary. Filed Date: 12/24/12. time on the specified comment date. Accession Number: 20121224–5002. [FR Doc. 2012–31580 Filed 1–2–13; 8:45 am] Protests may be considered, but Comments Due: 5 p.m. ET 1/14/13. BILLING CODE 6717–01–P intervention is necessary to become a Take notice that the Commission party to the proceeding. received the following electric securities DEPARTMENT OF ENERGY filings: Filings in Existing Proceedings Docket Numbers: ES13–12–000. Federal Energy Regulatory Docket Numbers: RP12–1065–001. Applicants: Steckman Ridge, LP. Applicants: ITC Midwest LLC. Commission Description: ITC Midwest LLC Description: RP12–1065–000 submits Application Under Section 204 Combined Notice of Filings Compliance Filing to be effective 3/1/ of the Federal Power Act for 2013. Authorization to Issue Debt Securities. Take notice that the Commission has Filed Date: 12/13/12. Filed Date: 12/21/12. received the following Natural Gas Accession Number: 20121213–5039. Accession Number: 20121221–5318. Pipeline Rate and Refund Report filings: Comments Due: 5 p.m. ET 12/28/12. Docket Numbers: RP12–1086–001. Comments Due: 5 p.m. ET 1/11/13. Filings Instituting Proceedings Take notice that the Commission Applicants: Pine Needle LNG received the following foreign utility Docket Numbers: RP13–415–000. Company, LLC. company status filings: Applicants: Texas Eastern Description: Pine Needle Order No. Transmission, LP. 587–V (NAESB 2.0) Second Compliance Docket Numbers: FC13–1–000; FC13– Description: Texas Eastern to be effective 12/1/2012. 2–000; FC13–3–000; FC13–4–000; Transmission, LP submits tariff filing Filed Date: 12/13/12. FC13–5–000; FC13–6–000. per 154.403: EPC FEB 2013 FILING to be Accession Number: 20121213–5070. Applicants: Pacific Northern Gas Ltd., effective 2/1/2013. Comments Due: 5 p.m. ET 12/28/12. AtlaGas Utilities Inc., Heritage Gas Ltd., Filed Date: 12/27/12. Docket Numbers: RP12–1094–001. McNair Creek Hydro Limited Accession Number: 20121227–5048. Applicants: Bobcat Gas Storage. Partnership, AtlaGas Pipeline Comments Due: 5 p.m. ET 1/8/13. Description: RP12–1094–000 Partnership, Bear Mountain Wind Compliance Filing to be effective 3/1/ Limited Partnership. Docket Numbers: RP12–308–000. Applicants: Golden Pass Pipeline 2013. Description: Self-Certification of Filed Date: 12/13/12. foreign utility company subsidiaries of LLC. Description: Annual Report of Penalty Accession Number: 20121213–5036. AltaGas Ltd. Comments Due: 5 p.m. ET 12/28/12. Filed Date: 12/21/12. Revenue and Costs of Golden Pass to be Docket Numbers: RP12–1096–001. Accession Number: 20121221–5042. effective N/A. Applicants: Egan Hub Storage, LLC. Comments Due: 5 p.m. ET 1/11/13. Filed Date: 12/13/12. Accession Number: 20121213–5086. Description: RP12–1096–000 Take notice that the Commission Comments Due: 5 p.m. ET 12/28/12. Compliance Filing to be effective 3/1/ received the following public utility Docket Numbers: RP13–385–000. 2013. holding company filings: Filed Date: 12/13/12. Applicants: Gulf South Pipeline Docket Numbers: PH13–6–000. Accession Number: 20121213–5037. Applicants: Enbridge Inc. Company, LP. Comments Due: 5 p.m. ET 12/28/12. Description: Enbridge Inc. submits Description: Amendment to Neg Rate Agmt (Sequent 34693–13) to be effective Docket Numbers: RP12–1099–001. FERC–65B Waiver Notification, et al. Applicants: Saltville Gas Storage 12/18/2012. Filed Date: 12/21/12. Company L.L.C. Filed Date: 12/13/12. Accession Number: 20121221–5327. Description: Filed Date: 12/13/2012. Accession Number: 20121213–5027. Comments Due: 5 p.m. ET 1/11/13. Accession Number: 20121213–5038. The filings are accessible in the Comments Due: 5 p.m. ET 12/28/12. Comments Due: 5 p.m. ET 12/28/12. Commission’s eLibrary system by Docket Numbers: RP13–386–000. Docket Numbers: RP13–1–001. clicking on the links or querying the Applicants: Texas Eastern Applicants: KO Transmission docket number. Transmission, LP. Company. Any person desiring to intervene or Description: Termination of KGen Description: Compliance Filing in protest in any of the above proceedings Hinds Non-Conforming Agreement to be Docket No. RP13–1 to be effective 12/1/ must file in accordance with Rules 211 effective 12/13/2012. 2012. and 214 of the Commission’s Filed Date: 12/13/12. Filed Date: 12/13/12. Regulations (18 CFR 385.211 and Accession Number: 20121213–5103. Accession Number: 20121213–5019. 385.214) on or before 5:00 p.m. Eastern Comments Due: 5 p.m. ET 12/28/12. Comments Due: 5 p.m. ET 12/28/12. time on the specified comment date. Docket Numbers: RP13–387–000. Docket Numbers: RP13–106–001. Protests may be considered, but Applicants: Ozark Gas Transmission, Applicants: Young Gas Storage intervention is necessary to become a L.L.C. Company, Ltd. party to the proceeding. Description: KGen-Entergy Arkansas Description: Young NAESB 2.0 eFiling is encouraged. More detailed Permanent Release to be effective 12/13/ Compliance Filing to be effective 12/1/ information relating to filing 2012. 2012.

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Filed Date: 12/13/12. accreditation issues and/or FEDERAL MINE SAFETY AND HEALTH Accession Number: 20121213–5104. environmental monitoring or REVIEW COMMISSION Comments Due: 5 p.m. ET 12/28/12. measurement issues are encouraged and Docket Numbers: RP13–60–002. should be sent to Ms. Lara P. Phelps, Sunshine Act Notice Applicants: Tennessee Gas Pipeline Designated Federal Official, U.S. EPA, December 28, 2012. Company, L.L.C. 109 T. W. Alexander Drive, Mail Code TIME AND DATE: 10:00 a.m., Thursday, Description: NAESB V2.0 Compliance E243–05, Research Triangle Park, NC January 17, 2013 (to commence shortly 12–13–12 to be effective 12/1/2012. 27709 or emailed to after completion of meeting on first Filed Date: 12/13/12. [email protected]. Accession Number: 20121213–5069. scheduled case). Comments Due: 5 p.m. ET 12/28/12. SUPPLEMENTARY INFORMATION: For 2013, PLACE: The Richard V. Backley Hearing Docket Numbers: RP13–81–002. teleconference only meetings will be Room, Room 511N, 1331 Pennsylvania Applicants: Caledonia Energy February 20, 2013 at 1:00 p.m. ET; Avenue NW., Washington, DC 20004 Partners, L.L.C. March 20, 2013 at 1:00 p.m. ET; April (entry from F Street entrance). Description: Correction to FERC Gas 17, 2013 at 1:00 p.m. ET; May 15, 2013 STATUS: Open. Tariff to Comply with FERC Order No. at 1:00 p.m. ET; June 19, 2013 at 1:00 MATTERS TO BE CONSIDERED: The 587–V to be effective 12/1/2012. p.m. ET; July 17, 2013 at 1:00 p.m. ET; Commission will consider and act upon Filed Date: 12/13/12. September 18, 2013 at 1:00 p.m. ET; the following in open session: Accession Number: 20121213–5133. October 16, 2013 at 1:00 p.m. ET; Clintwood Elkhorn Mining Co. v. Comments Due: 5 p.m. ET 12/28/12. November 20, 2013 at 1:00 p.m. ET; and Secretary of Labor, Docket Nos. KENT Any person desiring to protest in any December 18, 2013 at 1:00 p.m. ET to 2011–40–R, et al. (Issues include of the above proceedings must file in discuss the ideas and views presented at whether the Administrative Law Judge accordance with Rule 211 of the the previous ELAB meetings, as well as erred in dismissing a citation because it Commission’s Regulations (18 CFR new business. Items to be discussed by was issued during an investigation 385.211) on or before 5:00 p.m. Eastern ELAB over these coming meetings rather than during an inspection.) time on the specified comment date. include: (1) Issues in continuing the Any person attending this meeting The filings are accessible in the expansion of national environmental who requires special accessibility features and/or auxiliary aids, such as Commission’s eLibrary system by accreditation; (2) ELAB support to the sign language interpreters, must inform clicking on the links or querying the Agency’s on issues relating to docket number. the Commission in advance of those measurement and monitoring for all needs. Subject to 29 CFR 2706.150(a)(3) eFiling is encouraged. More detailed programs; and (3) follow-up on some of information relating to filing and 2706.160(d). ELAB’s past recommendations and requirements, interventions, protests, CONTACT PERSON FOR MORE INFO: Jean issues. In addition to these and service can be found at: http:// Ellen (202) 434–9950/(202) 708–9300 teleconferences, ELAB will be hosting www.ferc.gov/docs-filing/efiling/filing- for TDD Relay/1–800–877–8339 for toll req.pdf. For other information, call (866) their two face-to-face meetings with free. 208–3676 (toll free). For TTY, call (202) teleconference line also available on Emogene Johnson, 502–8659. January 14, 2013 at the Hyatt Regency Denver in Denver, CO at 8:00 a.m. Administrative Assistant. Dated: December 27, 2012. Mountain Time and on August 5, 2013 [FR Doc. 2012–31690 Filed 12–31–12; 11:15 am] Nathaniel J. Davis, Sr., at the Hyatt Regency San Antonio in BILLING CODE 6735–01–P Deputy Secretary. San Antonio, TX at 9:00 a.m. Central [FR Doc. 2012–31612 Filed 1–2–13; 8:45 am] Time. BILLING CODE 6717–01–P FEDERAL MINE SAFETY AND HEALTH Members of the public are invited to REVIEW COMMISSION listen to the teleconference calls, and time permitting, will be allowed to ENVIRONMENTAL PROTECTION Sunshine Act Meeting Notice comment on issues discussed during AGENCY this and previous ELAB meetings. Those December 28, 2012. [FRL–9765–2] persons interested in attending should TIME AND DATE: 10:00 a.m., Thursday, call Lara P. Phelps on (919) 541–5544 to January 17, 2013. Environmental Laboratory Advisory obtain teleconference information. For PLACE: The Richard V. Backley Hearing Board Meeting Dates and Agenda information on access or services for Room, Room 511N, 1331 Pennsylvania AGENCY: Environmental Protection individuals with disabilities, please Avenue NW., Washington, DC 20004 Agency (EPA). contact Lara P. Phelps on the number (entry from F Street entrance). ACTION: Notice of teleconference and above. To request accommodation of a STATUS: Open. face-to-face meetings. disability, please contact Lara P. Phelps, MATTERS TO BE CONSIDERED: The preferably at least 10 days prior to the Commission will consider and act upon SUMMARY: The Environmental Protection meeting, to give the EPA as much time the following in open session: Secretary Agency’s Environmental Laboratory as possible to process your request. of Labor v. Consolidation Coal Co., Advisory Board (ELAB), as previously Dated: December 18, 2012. Docket No. WEVA 2009–371. (Issues announced, holds teleconference include whether the Administrative meetings the third Wednesday of each Glenn Paulson, Law Judge erred in concluding that month at 1:00 p.m. Eastern Time (ET) EPA Science Advisor. certain violations of safety standards and two face-to-face meetings each [FR Doc. 2012–31536 Filed 1–2–13; 8:45 am] were ‘‘significant and substantial.’’) calendar year. BILLING CODE 6560–50–P Any person attending this meeting FOR FURTHER INFORMATION CONTACT: who requires special accessibility Written comments on laboratory features and/or auxiliary aids, such as

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sign language interpreters, must inform FEDERAL RESERVE SYSTEM FEDERAL TRADE COMMISSION the Commission in advance of those [File No. 101 0023] needs. Subject to 29 CFR 2706.150(a)(3) Formations of, Acquisitions by, and and 2706.160(d). Mergers of Bank Holding Companies IDEXX Laboratories, Inc.; Analysis of CONTACT PERSON FOR MORE INFO: Jean Proposed Consent Order To Aid Public Ellen (202) 434–9950/(202) 708–9300 The companies listed in this notice Comment for TDD Relay/1–800–877–8339 for toll have applied to the Board for approval, AGENCY: free. pursuant to the Bank Holding Company Federal Trade Commission. Act of 1956 (12 U.S.C. 1841 et seq.) ACTION: Proposed Consent Agreement. Emogene Johnson, (BHC Act), Regulation Y (12 CFR Part Administrative Assistant. SUMMARY: The consent agreement in this 225), and all other applicable statutes matter settles alleged violations of [FR Doc. 2012–31684 Filed 12–31–12; 11:15 am] and regulations to become a bank federal law prohibiting unfair or BILLING CODE 6735–01–P holding company and/or to acquire the deceptive acts or practices or unfair assets or the ownership of, control of, or methods of competition. The attached the power to vote shares of a bank or Analysis to Aid Public Comment bank holding company and all of the FEDERAL RESERVE SYSTEM describes both the allegations in the banks and nonbanking companies draft complaint and the terms of the Change in Bank Control Notices; owned by the bank holding company, consent order—embodied in the consent Acquisitions of Shares of a Bank or including the companies listed below. agreement—that would settle these Bank Holding Company The applications listed below, as well allegations. as other related filings required by the DATES: Comments must be received on The notificants listed below have Board, are available for immediate or before January 24, 2013. applied under the Change in Bank inspection at the Federal Reserve Bank ADDRESSES: Interested parties may file a Control Act (12 U.S.C. 1817(j)) and indicated. The applications will also be comment at https:// § 225.41 of the Board’s Regulation Y (12 ftcpublic.commentworks.com/ftc/ CFR 225.41) to acquire shares of a bank available for inspection at the offices of idexxlabconsent online or on paper, by or bank holding company. The factors the Board of Governors. Interested following the instructions in the that are considered in acting on the persons may express their views in Request for Comment part of the notices are set forth in paragraph 7 of writing on the standards enumerated in SUPPLEMENTARY INFORMATION section the Act (12 U.S.C. 1817(j)(7)). the BHC Act (12 U.S.C. 1842(c)). If the below. Write ‘‘IDEXX, File No. 101 The notices are available for proposal also involves the acquisition of 0023’’ on your comment and file your immediate inspection at the Federal a nonbanking company, the review also comment online at https:// Reserve Bank indicated. The notices includes whether the acquisition of the ftcpublic.commentworks.com/ftc/ also will be available for inspection at nonbanking company complies with the idexxlabconsent by following the the offices of the Board of Governors. standards in section 4 of the BHC Act instructions on the Web-based form. If Interested persons may express their (12 U.S.C. 1843). Unless otherwise you prefer to file your comment on views in writing to the Reserve Bank noted, nonbanking activities will be paper, mail or deliver your comment to indicated for that notice or to the offices conducted throughout the United States. the following address: Federal Trade of the Board of Governors. Comments Unless otherwise noted, comments Commission, Office of the Secretary, must be received not later than January regarding each of these applications Room H–113 (Annex D), 600 18, 2013. must be received at the Reserve Bank Pennsylvania Avenue NW., Washington, A. Federal Reserve Bank of Kansas indicated or the offices of the Board of DC 20580. City (Dennis Denney, Assistant Vice Governors not later than January 29, FOR FURTHER INFORMATION CONTACT: Lisa President) 1 Memorial Drive, Kansas 2013. Kopchik (202–326–3139), FTC, Bureau City, Missouri 64198–0001: of Competition, 600 Pennsylvania 1. Davis Family Trust; Steven C. A. Federal Reserve Bank of St. Louis Avenue NW., Washington, DC 20580. Davis, P.C.; the Steven C. Davis (Glenda Wilson, Community Affairs Succession Trust; the Ricky J. Davis Officer) P.O. Box 442, St. Louis, SUPPLEMENTARY INFORMATION: Pursuant Succession Trust; and the Kenneth R. Missouri 63166–2034: to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and Davis Succession Trust, all of Oklahoma 1. M&P Community Bancshares, Inc., FTC Rule 2.34, 16 CFR 2.34, notice is City, Oklahoma; and Scott R. Duncan, 401(k) Employee Stock Ownership Plan, Oklahoma City, Oklahoma, as trustee of hereby given that the above-captioned to acquire additional shares of M&P consent agreement containing a consent the Steven C. Davis Succession Trust, Community Bancshares, Inc., for a total the Ricky J. Davis Succession Trust, and order to cease and desist, having been of ownership of up to 37 percent and filed with and accepted, subject to final the Kenneth R. Davis Succession Trust, thereby indirectly control Merchants to become a part of the group acting in approval, by the Commission, has been and Planters Bank, all of Newport, placed on the public record for a period concert to acquire control of First Arkansas. Commercial Bancshares, Inc., and of thirty (30) days. The following thereby acquire control of First Board of Governors of the Federal Reserve Analysis to Aid Public Comment Commercial Bank, both of Edmond, System, December 28, 2012. describes the terms of the consent Oklahoma. Robert deV. Frierson, agreement, and the allegations in the complaint. An electronic copy of the Board of Governors of the Federal Reserve Secretary of the Board. full text of the consent agreement System, December 28, 2012. [FR Doc. 2012–31576 Filed 1–2–13; 8:45 am] package can be obtained from the FTC Robert deV. Frierson, BILLING CODE 6210–01–P Home Page (for December 21, 2012), on Secretary of the Board. the World Wide Web, at http:// [FR Doc. 2012–31575 Filed 1–2–13; 8:45 am] www.ftc.gov/os/actions.shtm. A paper BILLING CODE 6210–01–P copy can be obtained from the FTC

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Public Reference Room, Room 130–H, comments online. To make sure that the public record for 30 days for receipt of 600 Pennsylvania Avenue NW., Commission considers your online comments from interested members of Washington, DC 20580, either in person comment, you must file it at https:// the public. Comments received during or by calling (202) 326–2222. ftcpublic.commentworks.com/ftc/ this period will become part of the You can file a comment online or on idexxlabconsent by following the public record. After 30 days, the paper. For the Commission to consider instructions on the web-based form. If Commission will again review the your comment, we must receive it on or this Notice appears at http:// Agreement and comments received, and before January 24, 2013. Write ‘‘IDEXX, www.regulations.gov/#!home, you also will decide whether it should withdraw File No. 101 0023’’ on your comment. may file a comment through that Web from the Agreement or make final the Your comment—including your name site. Order contained in the Agreement. and your state—will be placed on the If you file your comment on paper, IDEXX has already entered into a non- public record of this proceeding, write ‘‘IDEXX, File No. 101 0023’’ on exclusive distribution agreement with including, to the extent practicable, on your comment and on the envelope, and MWI Veterinarian Supply Co., Inc. the public Commission Web site, at mail or deliver it to the following (‘‘MWI’’), and that distribution http://www.ftc.gov/os/ address: Federal Trade Commission, agreement has been incorporated into publiccomments.shtm. As a matter of Office of the Secretary, Room H–113 the terms of the proposed Order. discretion, the Commission tries to (Annex D), 600 Pennsylvania Avenue The purpose of this Analysis to Aid remove individuals’ home contact NW., Washington, DC 20580. If possible, Public Comment is to invite and information from comments before submit your paper comment to the facilitate public comment concerning placing them on the Commission Web Commission by courier or overnight the proposed Order. It is not intended site. service. to constitute an official interpretation of Because your comment will be made Visit the Commission Web site at the Agreement and proposed Order or in public, you are solely responsible for http://www.ftc.gov to read this Notice any way to modify their terms. making sure that your comment does and the news release describing it. The The Agreement is for settlement not include any sensitive personal FTC Act and other laws that the purposes only and does not constitute information, like anyone’s Social Commission administers permit the an admission by IDEXX that the law has Security number, date of birth, driver’s collection of public comments to been violated as alleged in the license number or other state consider and use in this proceeding as Complaint or that the facts alleged in identification number or foreign country appropriate. The Commission will the Complaint, other than jurisdictional equivalent, passport number, financial consider all timely and responsive facts, are true. account number, or credit or debit card public comments that it receives on or number. You are also solely responsible before January 24, 2012. You can find I. The Complaint for making sure that your comment does more information, including routine The Complaint makes the following not include any sensitive health uses permitted by the Privacy Act, in allegations. information, like medical records or the Commission’s privacy policy, at other individually identifiable health http://www.ftc.gov/ftc/privacy.htm. A. Industry Background information. In addition, do not include Point of care (‘‘POC’’) diagnostic Analysis of Agreement Containing any ‘‘[t]rade secret or any commercial or products include rapid assay tests, financial information which * * * is Consent Order To Aid Public Comment equipment and supplies that permit a privileged or confidential,’’ as discussed The Federal Trade Commission has companion animal veterinarian to test, in Section 6(f) of the FTC Act, 15 U.S.C. accepted for public comment an diagnose and treat certain conditions 46(f), and FTC Rule 4.10(a)(2), 16 CFR Agreement Containing Consent Order to such as heartworm during a single office 4.10(a)(2). In particular, do not include Cease and Desist (‘‘Agreement’’) with visit. POC diagnostic products provide competitively sensitive information IDEXX Laboratories, Inc. (‘‘IDEXX’’). real-time results that cannot be obtained such as costs, sales statistics, The Agreement seeks to resolve charges through other testing alternatives, such inventories, formulas, patterns, devices, that IDEXX engaged in exclusionary as services offered by outside reference manufacturing processes, or customer conduct to maintain its monopoly labs. names. power in the companion animal Veterinarians are the primary If you want the Commission to give diagnostic testing equipment and consumers of POC diagnostic products. your comment confidential treatment, supplies industry in violation of Section Veterinarians use POC diagnostic you must file it in paper form, with a 5 of the Federal Trade Commission Act, products to assess the general health of request for confidential treatment, and 15 U.S.C. 45. animals and to identify pathologies. you have to follow the procedure Specifically, the proposed Complaint Veterinarians perform diagnostic testing explained in FTC Rule 4.9(c), 16 CFR that accompanies the Agreement at veterinary clinics with instruments or 4.9(c).1 Your comment will be kept (‘‘Complaint’’) alleges that IDEXX has test kits manufactured and sold by confidential only if the FTC General used its monopoly power to impose IDEXX and its competitors. POC testing Counsel, in his or her sole discretion, exclusive deals with its distributors. As provides veterinarians and pet owners grants your request in accordance with a result, IDEXX has foreclosed rivals the medical advantage and convenience the law and the public interest. from key distribution channels and of almost-immediate results. Postal mail addressed to the limited competition in the relevant As of 2009, more than 75% of Commission is subject to delay due to market, leading to higher prices, lower veterinarians used POC diagnostic heightened security screening. As a output, reduced innovation and testing. Each year, veterinarians in the result, we encourage you to submit your diminished consumer choice. United States purchase approximately The Commission anticipates that the $500 million worth of POC diagnostic 1 In particular, the written request for confidential competitive issues described in the products. treatment that accompanies the comment must Complaint will be resolved by accepting There are no close substitutes for POC include the factual and legal basis for the request, diagnostic products. Although and must identify the specific portions of the the proposed Order, subject to final comment to be withheld from the public record. See approval, contained in the Agreement. veterinarians can purchase some FTC Rule 4.9(c), 16 CFR 4.9(c). The Agreement has been placed on the diagnostic services by sending

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specimens to outside laboratories, POC B. The Respondent diagnostic products that the distributors testing allows veterinarians to provide IDEXX Laboratories, Inc. is a would otherwise choose to sell. As a timely, state-of-the-art care. corporation with its principal place of result, IDEXX has foreclosed its Veterinarians value faster results, business located in Westbrook, Maine. competitors from distributors that sell particularly when testing is associated IDEXX develops, manufactures and sells over 85% of all products purchased with emergencies, pre-surgery, and for diagnostic products to veterinarians through distribution by companion diagnoses of conditions that may require through distributors. IDEXX has animal veterinary clinics in the United the veterinarians to perform follow-up monopoly power in the POC diagnostic States, and those competitors are testing or dispense or prescribe products market. impeded from effectively and efficiently medicine as soon as possible. IDEXX’s core business is companion marketing their POC diagnostic Nearly all veterinarians buy their animal diagnostics, including POC products to veterinarians. IDEXX’s exclusionary practices have supplies, including POC diagnostic instruments and their related blocked rivals from the most efficient products, from distributors who consumables, rapid assay test kits sales channel. IDEXX has used its specialize in supplying companion (SNAP© tests), digital radiography exclusionary practices to successfully animal veterinary clinics. Veterinarians equipment, practice management diminish, marginalize or force its overwhelmingly prefer to buy through software, and diagnostic services competitors from the U.S. market. distributors because of the efficiency through wholly owned and operated and customer service they offer. Other IDEXX intentionally engages more reference laboratories. IDEXX’s share of distribution than it needs, even though purchasing options are less efficient and the POC diagnostic products market has more costly. that excess distribution is costly and been at least 70% during each of the inefficient for IDEXX. Nevertheless, Most veterinarians buy a majority of past five years (2006–2011). No other their equipment and supplies from a IDEXX continues to engage the excess firm had more than a 20% share of the distribution because it allows IDEXX to preferred distributor. More than 75% of relevant market in those same five years. veterinarians name Butler Schein block its rivals from using those Animal Health (‘‘Butler’’), Webster C. IDEXX’s Conduct distributors and insulates IDEXX from competition from its rivals. Thus, Veterinary Supply, Inc. (‘‘Webster’’), IDEXX bars its distributors from IDEXX maintains its monopoly and MWI, Midwest Veterinary Supply, Inc. carrying any competing POC diagnostic harms both distributors who would (‘‘Midwest’’), or Victor Medical testing products. IDEXX distributors prefer to offer a greater variety of POC Company (‘‘Victor’’), as their preferred include all three of the major, national diagnostic products, and veterinarians distributor. Combined, these top tier distributors of these products and the who could buy cheaper, superior, and distributors sell more than 85%, by two large, regional distributors named more convenient POC diagnostic revenue, of the products sold to above. As noted previously, these products. IDEXX’s exclusionary acts and companion animal veterinarians in the distributors sell 85% of equipment and practices require competing United States. supplies that companion animal manufacturers to settle for less efficient Butler, Webster and MWI are veterinarians buy through distributors. recognized by manufacturers, means to sell their products to distributors and veterinarians as the pre- D. Competitive Impact of IDEXX’s veterinarians. eminent national companion animal Conduct IDEXX’s exclusionary acts and veterinary supply distributors in the Because IDEXX has a broad line of practices erect significant barriers to United States. There are no other products and a dominant position in the entry for those manufacturers that have distributors that provide equivalent POC market, large distributors need to developed, would otherwise have levels of service to manufacturers and carry the IDEXX line. While distributors developed, or offered for sale POC regularly visit veterinarians in as wide need to carry the IDEXX line, they diagnostic products that would compete a geographic area as Butler, Webster or would prefer to carry competing with IDEXX products, thereby resulting MWI. Midwest and Victor are large, products as well. However, by insisting in reduced choice for veterinarians. regional distributors, also with strong that distributors make an ‘‘all-or- II. Legal Analysis reputations for high-quality service. nothing’’ choice, IDEXX compels The offense of monopolization under IDEXX and other POC diagnostic distributors to forgo competitors’ § 2 of the Sherman Act has two product manufacturers use distributors products. The features of the market that elements: (1) the possession of because distributors provide important make anticompetitive exclusion monopoly power in the relevant market; services to the manufacturer and are the possible—IDEXX’s status as a ‘‘must and (2) the willful acquisition, most efficient way for the manufacturer carry’’ supplier coupled with its enhancement or maintenance of that to channel their products to insistence on exclusivity—have endured power through exclusionary conduct.2 veterinarians. Manufacturers who do for many years, and thus the relatively Exclusive dealing by a monopolist is not use distributors face more short nominal duration of IDEXX’s condemned when the challenged significant obstacles to sales, marketing distribution contracts has not mitigated conduct significantly impairs the ability and delivery than manufacturers who the anticompetitive effects of the of rivals to compete effectively with the use distributors. exclusive deals. respondent and thus limits the ability of The top tier distributors provide IDEXX’s control of distributors means those rivals to constrain the exercise of better services to their manufacturer that it forecloses its competition from monopoly power.3 clients than other distributors. Those effectively and efficiently reaching large better services can include, but are not segments of the veterinarian market, and 2 Verizon Commc’ns v. Law Offices of Curtis v. limited to, more sales, better sales and forces veterinarians to incur greater Trinko LLP., 540 U.S. 398, 407 (2004); United States inventory data transfer, more costs to obtain non-IDEXX products. v. Grinnell Corp., 384 U.S. 563, 570–71 (1966). experienced sales representatives, better IDEXX has used its monopoly power, 3 See, e.g., Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585,605 & n.32 (1985) market forecasting, more timely the threat of termination, and explicit (exclusionary conduct ‘‘tends to impair the payments, and more frequent visits to agreements to prevent those top tier opportunities of rivals’’ but ‘‘either does not further veterinarian clients. distributors from selling rival POC competition on the merits or does so in an

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The Complaint alleges that IDEXX has marketing efforts may generate some agreement to the Commission at least monopoly power and used it to create consumer interest in the product thirty (30) days before it is signed. competitive harm. IDEXX’s policy of category as a whole—and not just in Further, if the non-exclusive national requiring exclusivity from its IDEXX’s own products—this is a part of distributor merges with, acquires, or is distributors has foreclosed its rivals the natural competitive process. This acquired by a distributor that has an from over 85 percent of available sales type of consumer response does not exclusive distribution arrangement with opportunities at this level of the raise a free-riding concern sufficient to IDEXX, the non-exclusive distribution distribution chain. This foreclosure is justify the substantial anticompetitive agreement stays in effect. particularly significant because nearly effects found here.7 By direction of the Commission, all POC diagnostics are sold to III. The Order Commissioner Ohlhausen abstaining. veterinarians through distributors, and Richard C. Donohue, Together with the distribution other channels to the veterinarians are Acting Secretary. inconvenient, impractical and more agreement between IDEXX and MWI expensive for both the veterinarians and Veterinary Supply, Inc., signed in [FR Doc. 2012–31571 Filed 1–2–13; 8:45 am] IDEXX’s competitors. September 2012, the proposed Consent BILLING CODE 6750–01–P A monopolist may rebut a showing of Order is designed to make the market competitive harm by demonstrating that for POC diagnostic testing products the challenged conduct is reasonably more competitive. Generally, the Order GENERAL SERVICES necessary to achieve a pro-competitive prohibits IDEXX from maintaining ADMINISTRATION benefit.4 Any proffered justification, if exclusive distribution arrangements [OMB Control No. 3090–0086; Docket 2012– proven, must be balanced against the with all three national distributors. 0001; Sequence 18] harm caused by the challenged Specifically, Part II of the Order conduct.5 In this case, however, no pro- addresses this core provision. Part III General Services Administration competitive efficiency justifies IDEXX’s imposes reporting requirements for four Acquisition Regulation; Information exclusionary and anticompetitive years. Parts IV and V impose other Collection; Proposal To Lease Space, conduct. Further, IDEXX cannot show reporting and compliance requirements. GSA Forms 1364A, 1364A–1, 1364B, that the exclusive arrangements were Unless otherwise indicated, the Order 1364C, 1364D reasonably necessary to achieve a will expire in ten years. AGENCY: Office of the Chief Acquisition procompetitive benefit. The Order defines the ‘‘national A concern about interbrand free- Officer, General Services distributors’’ as Butler, MWI and Administration (GSA). riding also does not justify the Webster, so long as they continue to ACTION: Notice of request for comments substantial anticompetitive effects distribute companion animal POC 6 regarding an extension of an found here. Free-riding might occur if, diagnostic equipment and supplies. information collection requirement for for example, IDEXX provided a great Starting in January, 2013, MWI can an existing OMB clearance. deal of training or services to its distribute both IDEXX products and distributors, and if the training or competitive products. Either IDEXX or SUMMARY: Under the provisions of the services help promote the product MWI can terminate the agreement. If the Paperwork Reduction Act, the General category as a whole rather than just parties agree that MWI will return to an Services Administration will be IDEXX’s product. In such an instance, exclusive arrangement with IDEXX, submitting to the Office of Management promotion of the competitors’ products IDEXX must have a non-exclusive and Budget (OMB) a request to review would ‘‘free-ride’’ on IDEXX’s activities. agreement with one of the two other and approve an extension of a In this case, however, the vast majority national distributors. previously approved information of IDEXX’s promotional efforts are All future non-exclusive agreements collection requirement for Proposal to relevant to IDEXX’s products only, between IDEXX and a national Lease Space, GSA Form 1364. The thereby reducing the risk of free-riding distributor must meet the requirements General Services Administration (GSA) by IDEXX’s competitors. While IDEXX’s of the Order. Paragraph II.B requires that has various mission responsibilities such an agreement begin with a two related to the acquisition and provision unnecessarily restrictive way’’) (citations omitted); year term, and provide for additional Lorain Journal Co. v. United States, 342 U.S. 143, of real property management, and 151–54 (1951) (condemning newspaper’s refusal to renewal terms of at least one year; that disposal of real and personal property. deal with customers that also advertised on rival IDEXX shall not urge, induce, coerce, These mission responsibilities generate radio station because it harmed the radio station’s threaten, pressure, penalize, withhold ability to compete); United States v. Microsoft, 253 requirements that are realized through F.3d 34, 68–71 (DC Cir. 2001) (condemning the sale of product, or otherwise the solicitation and award of leasing exclusive agreements because they prevented rivals retaliate against the non-exclusive contracts. Individual solicitations and from ‘‘pos[ing] a real threat to Microsoft’s national distributor in order to limit its resulting contracts may impose unique monopoly’’); United States v. Dentsply, 399 F.3d sales of other manufacturers’ products. 181, 191 (3d Cir. 2005) (‘‘test is not total foreclosure information collection/reporting but whether the challenged practices bar a Paragraph II.B also requires IDEXX to requirements on contractors, not substantial number of rivals or severely restrict the notify the Federal Trade Commission required by regulation, but necessary to market’s ambit’’); LePage’s, Inc. v. 3M, 324 F.3d about the termination of any non- (1) evaluate whether the physical 141, 159–60 (3d Cir. 2003) (same). exclusive distribution agreement. attributes of offered properties meet the 4 E.g., Microsoft, 253 F.3d at 59. Paragraph II.C orders that IDEXX show 5 Government’s requirements and (2) Id. any future non-exclusive distribution 6 ‘‘Interbrand free-riding’’ occurs when a compare the owner/offeror’s price manufacturer provides services, training, or other proposal against competing offers. incentives in the promotion of its products for 7 See United States v. Dentsply Int’l, Inc., 277 F. DATES: which it cannot easily charge its dealer, and that Supp. 2d 387, 445 (D. Del. 2003), aff’d in rel. part, Submit comments on or before: dealer ‘‘free-rides’’ on these demand-generating 399 F.3d at 196–97; Marvel, Exclusive Dealing, 25 March 4, 2013. services by substituting a cheaper, more profitable J.L. & ECON. at 8 (explaining that an interbrand ADDRESSES: Submit comments product made by another manufacturer that does free-riding justification ‘‘does not apply if the identified by Information Collection not invest in comparable services. See generally, promotional investment is purely brand specific. In Howard P. Marvel, Exclusive Dealing, 25 J.L. & such cases, the dealer will not be in a position to 3090–0086, Proposal to Lease Space, ECON. 1, 8 (1982). switch customers from brand to brand.’’). GSA Forms 1364A, 1364A–1, 1364B,

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1364C and 1364D by any of the national leased portfolio. Four of the offerors to understand (e.g., accessibility following methods: lease models require offerors to and seismic standards, flood plain • Regulations.gov: http:// complete a GSA Form 1364. The new compliance, asbestos). The 1364C also www.regulations.gov. Submit comments versions of GSA Form 1364 require the limits the collection of tenant via the Federal eRulemaking portal by submission of information specifically improvement overhead fees to the inputting ‘‘Information Collection 3090– aligned with the leasing models and architect/engineering fees and lessor’s 0086, Proposal to Lease Space, GSA avoid mandating submission of project management fees. Form 1364D’’ under the heading ‘‘Enter information that is not required for use B. Annual Reporting Burden Keyword or ID’’ and selecting ‘‘Search’’. in evaluation and award under each Select the link ‘‘Submit a Comment’’ model. The Simplified Lease Model Respondents: 3565. that corresponds with ‘‘Information uses GSA Forms 1364A and 1364A–1. Responses per Respondent: 1. Collection 3090–0086, Proposal to Lease This model obtains a firm, fixed price Hours per Response: 2.4238 (average). Space, GSA Form 1364’’. Follow the for rent, which includes the cost of Total Burden Hours: 8641. instructions provided at the ‘‘Submit a tenant improvement construction. Obtaining Copies of Proposals: Comment’’ screen. Please include your Therefore, leases using the Simplified Requesters may obtain a copy of the name, company name (if any), and model do not include post-award tenant information collection documents from ‘‘Information Collection 3090–0086, improvement cost information on the the General Services Administration, Proposal to Lease Space, GSA Form form. Regulatory Secretariat, 1275 First Street 1364’’ on your attached document. The 1364A includes rental rate NE., Washington, DC 20417, telephone • Fax: 202–501–4067. components and cost data that becomes (202) 501–4755. Please cite OMB • Mail: General Services part of the lease contract and that is Control No. 3090–0086, GSA Form Administration, Regulatory Secretariat necessary to satisfy GSA pricing policy 1364, Proposal to Lease Space, in all (MVCB), 1275 First Street NE., requirements. correspondence. The 1364A–1 is a checklist that Washington, DC 20417. ATTN: Hada Dated: December 21, 2012. Flowers/IC 3090–0086, Proposal to addresses technical requirements as referenced in the Request for Lease Joseph A. Neurauter, Lease Space, GSA Form 1364D. Director, Office of Acquisition Policy & Senior Instructions: Please submit comments Proposals. The 1364A–1 is separate from the proposal itself and maintained Procurement Executive (MV). only and cite Information Collection [FR Doc. 2012–31622 Filed 1–2–13; 8:45 am] 3090–0086, Proposal to Lease Space, in the lease file; it does not become an BILLING CODE 6820–61–P GSA Form 1364, in all correspondence exhibit to the lease. The 1364A–1 may related to this collection. All comments contain proprietary offeror information that cannot be released under the received will be posted without change GENERAL SERVICES to http://www.regulations.gov, including Freedom of Information Act. The Streamlined Lease Model uses ADMINISTRATION any personal and/or business GSA Form 1364B. The Streamlined confidential information provided. [OMB Control No. 3090–0284; Docket 2012– Lease model is a unique model that was 0001; Sequence 14] FOR FURTHER INFORMATION CONTACT: Ms. designed to support small to mid-size Kathy Rifkin, Procurement Analyst, leases up to $500,000 average net Office of Citizen Services and General Services Acquisition Policy annual rent and occupancies that fall Innovative Technologies; Submission Division, GSA (816) 823–2170 or via under Interagency Security Committee for OMB Review; Data.gov Feedback email at [email protected]. Security Levels I, II, and III. The Mechanisms SUPPLEMENTARY INFORMATION: Streamlined Lease model is not used for AGENCY: General Services projects requiring lease construction or A. Purpose Administration (GSA). leases employing the best value trade-off The approval is requested for 5 evaluation process. ACTION: Notice of a request for versions of the form, GSA Forms 1364A, The Standard Lease Model, which comments regarding an extension of an 1364A–1, 1364B, 1364C, and 1364D. relies on an allowance instead of firm existing information collection. These forms are used to obtain fixed pricing for initial tenant SUMMARY: Under the provisions of the information for offer evaluation and improvements, uses GSA Form 1364C. Paperwork Reduction Act, the General lease award purposes regarding property The 1364C captures an offeror’s Services Administration will be being offered for lease to house Federal proposed interest rate and amortization submitting to the Office of Management agencies. This includes financial aspects period for the tenant improvements, in and Budget (OMB) a request to review of offers for analysis and negotiation, addition to the lessor’s overhead fees. such as real estate taxes, adjustments for The Succeeding and Superseding and approve a previously approved vacant space, and offerors’ construction Lease Model uses GSA Form 1364D. information collection requirement overhead fees. These leases are negotiated with the regarding Data.gov Feedback These Form 1364 versions are existing lessor after advertisements and Mechanisms. A notice was published in products of a GSA Lease Reform cost benefit analyses result in a the Federal Register at 77 FR 59614, on Initiative to improve the lease determination that such a lease is in the September 28, 2012. No comments were acquisition process for GSA, client best interests of the government. The received. agencies, and the private sector. Process form has less data input required than DATES: Submit comments on or before: reform over the past 2 years has brought for a Standard lease; it also includes February 4, 2013. reform to GSA leasing by implementing current rental rate information, supplied ADDRESSES: Submit comments a variety of enhancements and by the Government. identified by Information Collection improvements to the methods by which The 1364A–1, 1364B, and 1364C 3090–0284, Data.gov Feedback GSA procures space. As a direct result summarize an offeror’s technical Mechanisms, by any of the following of the reform, five new lease contract compliance with some important methods: models have been developed that are statutory and regulatory requirements to • Regulations.gov: http:// targeted to meet the needs of the make the overall offer process easier for www.regulations.gov. Submit comments

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via the Federal eRulemaking portal by specific additional efforts that GSA (4) Pages for visitors to advise how searching the OMB control number. could make to reduce the paperwork they leverage the datasets in new and Select the link ‘‘Submit a Comment’’ burden for very small businesses different ways to build applications, that corresponds with ‘‘Information affected by this collection. conduct analysis, and perform research, Collection 3090–0284, Data.gov (5) Pages for visitors to rate the benefit What should I consider when I prepare Feedback Mechanisms’’. Follow the of the reported new solutions, etc. my comments for GSA? instructions provided at the ‘‘Submit a B. Annual Reporting Burden Comment’’ screen. Please include your You may find the following name, company name (if any), and suggestions helpful for preparing your Number of Respondents: 9882. ‘‘Information Collection 3090–0284, comments. Total Annual Responses: 9882. Data.gov Feedback Mechanisms’’ on 1. Explain your views as clearly as Average Hours per Response: 0.017. your attached document. possible and provide specific examples. Total Burden Hours: 168. • Fax: 202–501–4067. 2. Describe any assumptions that you Obtaining Copies of Proposals: • Mail: General Services used. Requesters may obtain a copy of the Administration, Regulatory Secretariat 3. Provide copies of any technical information collection documents from (MVCB), 1275 First Street NE., information and/or data you used that the General Services Administration, Washington, DC 20417. ATTN: Hada support your views. Regulatory Secretariat Division (MVCB), 4. If you estimate potential burden or Flowers/IC 3090–0284, Data.gov 1275 First Street NE., Washington, DC costs, explain how you arrived at the Feedback Mechanisms. 20417, telephone (202) 501–4755. Please estimate that you provide. cite OMB Control No. 3090–0284, Instructions: Please submit comments 5. Offer alternative ways to improve only and cite Information Collection Data.gov Feedback Mechanisms, in all the collection activity. correspondence. 3090–0284, Data.gov Feedback 6. Make sure to submit your Mechanisms, in all correspondence comments by the deadline identified Dated: December 19, 2012. related to this collection. All comments under DATES. Casey Coleman, received will be posted without change 7. To ensure proper receipt by GSA, Chief Information Officer. to http://www.regulations.gov, including be sure to identify the ICR title on the [FR Doc. 2012–31621 Filed 1–2–13; 8:45 am] any personal and/or business first page of your response. You may BILLING CODE 6820–WY–P confidential information provided. also provide the Federal Register FOR FURTHER INFORMATION CONTACT: citation. Marion Royal, General Services Data.gov is inspired by the President’s DEPARTMENT OF HEALTH AND Administration, Office of Citizen program for ‘‘Open Government’’ and HUMAN SERVICES Services and Innovative Technologies, ‘‘Transparency’’. In response to the 1275 First Street NE., Washington, DC President’s direction to improve the Centers for Disease Control and 20417; telephone number: 202–208– transparency of government, the Federal Prevention 4643; fax number: 202–357–0077; email Chief Information Officer (CIO) Council [60 Day–13–0739] address: [email protected]. created a Web site/portal that improves SUPPLEMENTARY INFORMATION: public access to a wide variety of U.S. Proposed Data Collections Submitted A. Purpose Government data. Data.gov is a public- for Public Comment and friendly Web site that provides Recommendations Pursuant to section 3506(c)(2)(A) of descriptions of the federal datasets, the PRA, GSA specifically solicits information on how to access the In compliance with the requirement comments and information to enable it datasets, points of contact information, of Section 3506(c)(2)(A) of the to: metadata information, interactive Paperwork Reduction Act of 1995 for (i) Evaluate whether the proposed datasets, ‘‘Communities’’ areas centered opportunity for public comment on collection of information is necessary on specific topics, and links to publicly proposed data collection projects, the for the proper performance of the accessible applications that leverage the Centers for Disease Control and functions of the Agency, including datasets. This information collection Prevention (CDC) will publish periodic whether the information will have request is being submitted in order to summaries of proposed projects. To practical utility; fulfill the public feedback aspects of this request more information on the (ii) Evaluate the accuracy of the important initiative. Data.gov visitors proposed projects or to obtain a copy of Agency’s estimate of the burden of the will be provided opportunities to the data collection plans and proposed collection of information, provide feedback and ratings in the instruments, call 404–639–7570 or send including the validity of the spirit of the President’s open comments to Ron Otten, 1600 Clifton methodology and assumptions used; government and transparency initiative. Road, MS D–74, Atlanta, GA 30333 or (iii) Enhance the quality, utility, and Examples of feedback mechanisms are: send an email to [email protected]. clarity of the information to be (1) A five-star rating system to give Comments are invited on: (a) Whether collected; and visitors information about which the proposed collection of information (iv) Minimize the burden of the datasets other visitors found most useful is necessary for the proper performance collection of information on those who and interesting on the Data.gov Web of the functions of the agency, including are to respond, including through the page, whether the information shall have use of appropriate automated electronic, (2) A ‘‘Suggest Other Datasets’’ entry practical utility; (b) the accuracy of the mechanical, or other technological page for the public to submit ideas for agency’s estimate of the burden of the collection techniques or other forms of datasets with an optional contact email proposed collection of information; (c) information technology, e.g., permitting address provided for those visitors ways to enhance the quality, utility, and electronic submission of responses. In wishing to identify themselves, clarity of the information to be particular, GSA is requesting comments (3) A ‘‘Contact Us’’ entry page with an collected; and (d) ways to minimize the from very small businesses (those that optional contact email address for those burden of the collection of information employ less than 25) on examples of visitors wishing to identify themselves, on respondents, including through the

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use of automated collection techniques of program results. Through a health performance activities including or other forms of information cooperative agreement program programmatic and financial technology. Written comments should (Program Announcement DP08–802 and information. State oral health programs be received within 60 days of this DP10–1012), CDC has provided funding have used the MIS to submit their notice. to 20 states to strengthen their core oral required semi-annual reports to CDC Proposed Project health infrastructure and capacity. CDC (CDC Oral Health Management funding also helps states reduce health Information System, OMB No. 0920– CDC Oral Health Management disparities among high-risk populations 0739, exp. 5/31/2013). The last report Information System (OMB No. 0920– including, but not limited to, those of under the current Funding Opportunity 0739, exp. 5/31/2013)—Extension— lower socioeconomic status (SES), Announcement (FOA) is due on October National Center for Chronic Disease Hispanic Americans, African 31, 2013. Prevention and Public Health Promotion Americans, and other ethnic groups. CDC is requesting OMB approval to (NCDDPHP), Centers for Disease Control extend clearance for the MIS until and Prevention (CDC). NCCDPHP is currently pursuing a key initiative to improve the efficiency and December 31, 2013. Information will be Background and Brief Description effectiveness of CDC project officers reported to CDC once during this The CDC seeks to improve the oral who oversee the state and territorial oral period. The extension will allow CDC to health of the nation by targeting efforts health programs. An electronic receive final reports from the state oral to improve the infrastructure of state management information system (MIS) health programs and to provide any and territorial oral health departments, to support program management, technical assistance or follow-up strengthen and enhance program consulting and evaluation has been support that may be needed to produce capacity related to monitoring the developed in support of the cooperative accurate final reports. The estimated population’s oral health status and agreement. The MIS provides a central burden per response is 11 hours. behaviors, develop effective programs to repository of information, such as the All information will be collected improve the oral health of children and plans of the state or territorial oral electronically. There is no change to the adults, evaluate program health programs (their goals, objectives, estimated number of respondents or the accomplishments, and inform key performance milestones and indicators), burden per response. There are no costs stakeholders, including policy makers, as well as state and territorial oral to respondents other than their time.

ESTIMATED ANNUALIZED BURDEN HOURS

Average Number of Number of burden per Total burden Type of respondents respondents responses per response (in hours) respondent (in hours)

State Oral Health Programs ...... 20 1 11 220

Dated: December 27, 2012. the data collection plans and Background and Brief Description Ron A. Otten, instruments, call 404–639–7570 and send comments to Ron Otten, 1600 The Laboratory Response Network Director, Office of Scientific Integrity (OSI), (LRN) was established by the Office of the Associate Director for Science Clifton Road MS–D74, Atlanta, GA (OADS), Office of the Director, Centers for 30333 or send an email to [email protected]. Department of Health and Human Disease Control and Prevention. Comments are invited on (a) whether Services (HHS), Centers for Disease [FR Doc. 2012–31600 Filed 1–2–13; 8:45 am] the proposed collection of information Control and Prevention (CDC) in accordance with Presidential Decision BILLING CODE 4163–18–P is necessary for the proper performance of the functions of the agency, including Directive 39, which outlined national whether the information shall have a anti-terrorism policies and assigned DEPARTMENT OF HEALTH AND practical utility; (b) the accuracy of the specific missions to Federal HUMAN SERVICES agency’s estimate of the burden of the departments and agencies. The LRN’s proposed collection of information; (c) mission is to maintain an integrated Centers for Disease Control and ways to enhance the quality, utility, and national and international network of Prevention clarity of the information to be laboratories that can respond to suspected acts of biological, chemical, [60 Day–13–0850] collected; and (d) ways to minimize the burden of the collection of information or radiological threats and other public health emergencies. Proposed Data Collections Submitted on respondents, including through the for Public Comment and use of automated collection techniques When Federal, State and local public Recommendations or other forms of information health laboratories voluntarily join the technology. Written comments should LRN, they assume specific In compliance with the requirement be received within 60 days of this responsibilities and are required to of Section 3506(c)(2)(A) of the notice. provide information to the LRN Program Paperwork Reduction Act of 1995 for Office at CDC. Each laboratory must opportunity for public comment on Proposed Project submit and maintain complete proposed data collection projects, the Laboratory Response Network (LRN) information regarding the testing Centers for Disease Control and (OMB No. 0920–0850, Exp. 5/31/ capabilities of the laboratory. Prevention (CDC) will publish periodic 2013)—Extension—National Center for Biennially, laboratories are required to summaries of proposed projects. To Emerging and Zoonotic Infections review, verify and update their testing request more information on the (NCEZID, Centers for Disease Control capability information. Complete testing proposed projects or to obtain a copy of and Prevention (CDC). capability information is required in

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order for the LRN Program Office to Proficiency Testing Challenges or Program Office requires these results in determine the ability of the Network to Validation Studies. LRN Laboratories order to track the progression of a respond to a biological or chemical participate in multiple Proficiency bioterrorism event and respond in the threat event. The sensitivity of all Testing Challenges, Exercises and/or most efficient and effective way possible information associated with the LRN Validation Studies every year consisting and for data sharing with other Federal requires the LRN Program Office to of five to 500 simulated samples partners involved in the response. The obtain personal information about all provided by the LRN Program Office. It number of samples tested during a individuals accessing the LRN Web site. is necessary to conduct such challenges response to a possible event could range In addition, the LRN Program Office in order to verify the testing capability from 10,000 to more than 500,000 must be able to contact all laboratory of the LRN Laboratories. samples depending on the length and personnel during an event so each The rarity of biological or chemical breadth of the event. Since there is laboratory staff member that obtains agents perceived to be of bioterrorism potentially a large range in the number access to the restricted LRN Web site concern prevent some LRN Laboratories of samples for a surge event, CDC from maintaining proficiency as a result must provide his or her contact estimates the annualized burden for this of day-to-day testing. Simulated samples information to the LRN Program Office. event will be 2,250,000 hours or 625 As a requirement of membership, LRN are therefore distributed to ensure responses per respondent. Laboratories must report all biological proficiency across the LRN. The results and chemical testing results to the LRN obtained from testing these simulated Semiannually the LRN Program Office Program at CDC using a CDC developed samples must also be entered into may conduct a Special Data Call to software tool called the LRN Results Results Messenger for evaluation by the obtain additional information from LRN Messenger. This information is essential LRN Program Office. Member Laboratories in regards to for surveillance of anomalies, to support During a surge event resulting from a biological or chemical terrorism response to an event that may involve bioterrorism or chemical terrorism preparedness. Special Data Calls are multiple agencies and to manage limited attack, LRN Laboratories are also conducted using the LRN Web site. resources. LRN Laboratories must also required to submit all testing results There is no cost to the respondents participate in and report results for using LRN Results Messenger. The LRN other than their time.

ESTIMATED ANNUALIZED BURDEN HOURS

Average Number of Number of burden per Total Type of respondents Form name respondents responses per response burden respondent (in hrs) (in hrs)

Public Health Laboratories ...... Biennial Requalification ...... 150 1 2 300 Public Health Laboratories...... General Surveillance Testing Re- 150 25 24 90,000 sults. Public Health Laboratories ...... Proficiency Testing/Validation Test- 150 5 56 42,000 ing Results. Public Health Laboratories ...... Surge Event Testing Results ...... 150 625 24 2,250,000 Public Health Laboratories ...... Special Data Call ...... 150 10 2 3,000

Total ...... 2,385,300

Dated: December 20, 2012. Chapter 35). To request a copy of these from health departments and Ron Otten, requests, call (404) 639–7570 or send an community-based organizations (CBOs) Director, Office of Science Integrity, Office email to [email protected]. Send written who receive federal funds for HIV of the Associate Director for Science, Office comments to CDC Desk Officer, Office of prevention activities. Grantees have the of the Director, Centers for Disease Control Management and Budget, Washington, option of key-entering or uploading data and Prevention. DC 20503 or by fax to (202) 395–5806. to a CDC-provided web-based software [FR Doc. 2012–31182 Filed 1–2–13; 8:45 am] Written comments should be received application (EvaluationWeb®). BILLING CODE 4163–18–P within 30 days of this notice. The following changes have occurred Proposed Project since project 0920–0696 has been DEPARTMENT OF HEALTH AND National HIV Prevention Program implemented:(1) The previous reporting HUMAN SERVICES Monitoring and Evaluation (NHM&E) system (PEMS) has been replaced by a (OMB 0920–0696, Expiration 08/31/ more efficient reporting software. (2) Centers for Disease Control and Many data variables that were Prevention 2013)—Revision—National Center for HIV/AIDS, Viral Hepatitis, STD, and TB previously required or optional but [30 Day–13–0696] Prevention (NCHHSTP), Centers for reported have been deleted in order to Disease Control and Prevention (CDC). reduce data reporting burden on Agency Forms Undergoing Paperwork grantees. Other variables have been Reduction Act Review Background and Brief Description added or modified to adapt to changes The Centers for Disease Control and CDC is requesting a 3-year approval in HIV prevention and the National Prevention (CDC) publishes a list of for revision to the previously approved HIV/AIDS Strategic Plan. (3) reporting information collection requests under project. has been changed from quarterly to review by the Office of Management and The purpose of this revision is to semiannual. (4) the number of grantees Budget (OMB) in compliance with the continue collecting standardized HIV has changed as new FOAs were Paperwork Reduction Act (44 U.S.C. prevention program evaluation data awarded.

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The evaluation and reporting process for HIV prevention to report non- CDC HIV prevention program grantees is necessary to ensure that CDC receives identifying, client-level and aggregate- will collect, enter or upload, and report standardized, accurate, thorough level, standardized evaluation data to: agency-identifying information, budget evaluation data from both health (1) Accurately determine the extent to data, intervention information, and department and CBO grantees. For these which HIV prevention efforts are carried client demographics and behavioral risk reasons, CDC developed standardized out, what types of agencies are characteristics with an estimate of NHM&E variables through extensive providing services, what resources are 200,846 burden hours. Data collection consultation with representatives from allocated to those services, to whom will include searching existing data health departments, CBOs, and national services are being provided, and how sources, gathering and maintaining data, partners (e.g., The National Alliance of these efforts have contributed to a document compilation, review of data, State and Territorial AIDS Directors, reduction in HIV transmission; (2) and data entry or upload into the web- Urban Coalition of HIV/AIDS improve ease of reporting to better meet based system. Prevention Services, and National these data needs; and (3) be accountable There are no additional costs to Minority AIDS Council). to stakeholders by informing them of respondents other than their time. The CDC requires CBOs and health HIV prevention activities and use of total estimated annual burden hours are departments who receive federal funds funds in HIV prevention nationwide. 206,226.

ESTIMATED ANNUALIZED BURDEN HOURS

Average Number of Number of burden per Type of respondents Form name respondents responses per response respondent (in hours)

Health jurisdictions ...... Agency Data ...... 69 2 1377 HE/RR Data ...... 69 2 67 HIV Testing Data ...... 69 2 1,229 NEM&E Data Training ...... 69 2 52 Community-based Organizations ...... Agency Data ...... 200 2 30/60 HE/RR Data ...... 200 2 20 NHM&E Data Training ...... 200 2 20

Dated: December 27, 2012. Reporting Document Architecture 4. By hand or courier. Alternatively, Ron A. Otten, (QRDA) Category I. you may deliver (by hand or courier) Director, Office of Scientific Integrity (OSI), DATES: The information solicited in this your written comments ONLY to the Office of the Associate Director for Science document must be received at the following addresses: (OADS), Office of the Director, Centers for address provided below, no later than 5 a. For delivery in Washington, DC— Disease Control and Prevention. p.m. eastern standard time (e.s.t.) on Centers for Medicare & Medicaid [FR Doc. 2012–31599 Filed 1–2–13; 8:45 am] January 22, 2013. Services, Department of Health and BILLING CODE 4163–18–P ADDRESSES: In commenting, refer to file Human Services, Room 445–G, Hubert code CMS–3278–NC. Because of staff H. Humphrey Building, 200 and resource limitations, we cannot Independence Avenue SW., DEPARTMENT OF HEALTH AND accept comments by facsimile (FAX) Washington, DC 20201. HUMAN SERVICES transmission. (Because access to the interior of the You may submit comments in one of Centers for Medicare & Medicaid Hubert H. Humphrey Building is not four ways (please choose only one of the Services readily available to persons without ways listed): Federal government identification, 1. Electronically. You may submit commenters are encouraged to leave [CMS–3278–NC] electronic comments on this regulation their comments in the CMS drop slots to http://www.regulations.gov. Follow located in the main lobby of the Medicare Program; Request for the ‘‘Submit a comment’’ instructions. Information on Hospital and Vendor building. A stamp-in clock is available 2. By regular mail. You may mail for persons wishing to retain a proof of Readiness for Electronic Health written comments to the following Records Hospital Inpatient Quality filing by stamping in and retaining an address only: Centers for Medicare & extra copy of the comments being filed.) Data Reporting Medicaid Services, Department of Health and Human Services, Attention: b. For delivery in Baltimore, MD— AGENCY: Centers for Medicare & CMS–3278–NC, P.O. Box 8013, Centers for Medicare & Medicaid Medicaid Services (CMS), HHS. Baltimore, MD 21244–8013. Services, Department of Health and ACTION: Request for information. Please allow sufficient time for mailed Human Services, 7500 Security comments to be received before the Boulevard, Baltimore, MD 21244–1850. SUMMARY: This document is a request for close of the comment period. If you intend to deliver your information from hospitals, electronic 3. By express or overnight mail. You comments to the Baltimore address, call health record (EHR) vendors, and other may send written comments to the telephone number (410) 786–9994 in interested parties regarding hospital following address only: Centers for advance to schedule your arrival with readiness beginning calendar year 2014 Medicare & Medicaid Services, one of our staff members. discharges to electronically report Department of Health and Human Comments erroneously mailed to the certain patient-level data under the Services, Attention: CMS–3278–NC, addresses indicated as appropriate for Hospital Inpatient Quality Reporting Mail Stop C4–26–05, 7500 Security hand or courier delivery may be delayed (IQR) Program using the Quality Boulevard, Baltimore, MD 21244–1850. and received after the comment period.

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For information on viewing public • Adopt data standards to facilitate outcomes, patient perspectives on care, comments, see the beginning of the hospitals’ capturing, transmitting, and and efficiency that relate to services SUPPLEMENTARY INFORMATION section. formatting data elements consistently furnished in an inpatient acute care FOR FURTHER INFORMATION CONTACT: and clearly. hospital setting in order to receive the Maria Harr, (410) 786–6710. The Health Information Technology full annual payment update (APU). for Economic and Clinical Health SUPPLEMENTARY INFORMATION: Sections 1886(b)(3)(B)(viii)(I) of the Act (HITECH) Act, part of the American Inspection of Public Comments: All states that the applicable percentage Recovery and Reinvestment Act of 2009 comments received before the close of increase, for FY 2007 and each (ARRA, Pub. L. 111–5), authorized the comment period are available for subsequent fiscal year, shall be reduced Medicare and Medicaid incentive viewing by the public, including any by 2.0 percentage points (or, beginning payments to eligible professionals and personally identifiable or confidential with FY 2015, by one-quarter of such eligible hospitals when they adopt and applicable percentage increase business information that is included in meaningfully use CEHRT, as well as a comment. We post all comments (determined without regard to sections payment adjustments under Medicare 1886(b)(3)(B)(ix), (xi), or (xii) of the received before the close of the beginning in 2015 for failure to comment period on the following Web Act)) for any subsection (d) hospital that demonstrate meaningful use. We have does not submit quality data in a form site as soon as possible after they have promulgated regulations establishing been received: http:// and manner, and at a time, specified by the criteria for Stage 1 and Stage 2 of the Secretary. www.regulations.gov. Follow the search meaningful use. More than 120,000 instructions on that Web site to view eligible health care professionals and II. Solicitation for Information public comments. more than 3,300 hospitals have We are soliciting information from Comments received timely will also qualified to participate in the program hospitals, EHR vendors, and other be available for public inspection as and receive an incentive payment since interested parties on a variety of subject they are received, generally beginning it began in January 2011. matters. approximately 3 weeks after publication The EHR Incentive Program Stage 2 The following questions are intended of a document, at the headquarters of final rule (77 FR 53968) outlines our for all hospitals, EHR vendors, and other the Centers for Medicare & Medicaid commitment to aligning quality interested parties: Services, 7500 Security Boulevard, measurement and reporting programs, • How do hospitals and vendors Baltimore, Maryland 21244, Monday including the Hospital IQR program, the perceive the alignment of EHR-based through Friday of each week from 8:30 Physician Quality Reporting System reporting and hospital quality reporting a.m. to 4 p.m. To schedule an (PQRS), the Children’s Health Insurance programs? What are the foreseen appointment to view public comments, Program (CHIP), and the Pioneer benefits and challenges? phone 1–800–743–3951. Accountable Care Organization (ACO) • Do hospitals and vendors envision I. Background Model. The automatic collection and being able to meet the criteria for reporting of data elements for many reporting clinical quality measures We are interested in increasing measures through CEHRT is expected to electronically for the EHR Incentive efficiency and reducing the burden greatly simplify reporting for various Program as set forth in the EHR associated with hospital collection and quality reporting programs. We envisage Incentive Program—Stage 2 final rule submission of patient-level data on that hospitals will be able to switch (77 FR 53968) and any related guidance clinical quality measures (CQMs) and primarily to EHR-based reporting of issued? If not, what are the issues in are exploring ways that hospitals might clinical quality data for many measures meeting the requirements and what be able to report data on a subset of that are currently manually chart- additional information is needed? Hospital Inpatient Quality Reporting abstracted and submitted to CMS for the We are specifically soliciting (IQR) Program measures specified under Hospital IQR Program. comments from hospitals and other section 1886(b)(3)(B)(viii) of the Social The Hospital IQR Program (http:// interested parties on the following Security Act (the Act) using the same www.qualitynet.org/dcs/ topics: certified electronic health record ContentServer?cid=113811 • Is the hospital planning to adopt technology (CEHRT) that is used for 5987129&pagename=Qnet EHR technology that has been certified reporting under the Electronic Health Public%2FPage%2FQnetTier to the 2014 Edition EHR certification Record (EHR) Incentive Program as 2&c=Page), which is authorized by criteria during or before calendar year authorized by section 4102 of the section 1886(b)(3)(B)(viii) of the Act, is (CY) 2014? American Recovery and Reinvestment intended to equip patients with hospital • Is the hospital aware of the payment Act of 2009 (ARRA). The goals of quality of care information to make adjustments authorized under the aligning quality measurement and informed decisions about healthcare HITECH Act beginning in FY 2015 for reporting among our quality reporting options and is also intended to failing to demonstrate meaningful use programs are all of the following: encourage hospitals and clinicians to under the Medicare EHR Incentive • Streamline our quality reporting improve the quality of inpatient care Program? programs through automatic collection provided to all patients. Hospital IQR • Is the hospital planning to and reporting of data on CQMs using Program data is available to consumers electronically report CQM data— CEHRT. on the Hospital Compare Web site specifically venous thromboembolism • Reduce burden to hospitals by (http://www.hospitalcompare.hhs.gov/). (VTE) and stroke (STK) and emergency allowing them to use EHRs to submit Under the Hospital IQR Program, department (ED) measures—under the data on CQMs that are adopted for both subsection (d) hospitals report data on Medicare EHR Incentive Program in FY the Hospital IQR Program and the EHR selected quality measures to CMS. In 2014? Incentive Program. selecting measures for the program, we • Is the hospital already participating • Develop a single set of electronic strive to be consistent with the priorities in or planning to participate in the 2013 specifications for CQMs adopted under identified in the National Quality Medicare EHR Incentive Program multiple quality reporting programs. Strategy. Subsection (d) hospitals report Electronic Reporting Pilot for Eligible • Support quality care improvement. quality measures of process, structure, Hospitals and Critical Access Hospitals

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(CAHs) (‘‘Pilot’’)? The pilot provides certified systems? If yes, what guidance the draft guidance. The draft guidance eligible hospitals and CAHs with an for random sampling has been describes how FDA plans to implement opportunity to meet the CQM reporting employed, if any? If no, what barriers the requirements for the electronic requirements of the Medicare EHR are presented by adding this submission of applications for certain Incentive Program through electronic functionality to your currently certified human pharmaceutical products and is submission of CQM data. The pilot is a systems? being issued for public comment. In its voluntary electronic reporting method final form, this document will also III. Response to Comments used to satisfy the CQM reporting supersede the guidance titled requirements for the Medicare EHR Because of the large number of public ‘‘Guidance for Industry Providing Incentive Program. If not, what barriers comments we normally receive on Regulatory Submissions in Electronic prevent the hospital from participating? Federal Register documents, we are not Format—Human Pharmaceutical • Does the hospital plan to report able to acknowledge or respond to them Product Applications and Related data leveraging any state health individually. We will consider all Submissions Using the eCTD information exchange (HIE) initiative? comments we receive by the date and Specifications’’ that was issued in • Does the hospital plan to report time specified in the DATES section of October 2005 and revised in April 2006 data leveraging the Nationwide Health this request for information, and, when and June 2008. Information Network (NwHIN) we proceed with a subsequent DATES: Although you can comment on Exchange, which is now the eHealth document, we will respond to the any guidance at any time (see 21 CFR Exchange? comments in that document. 10.115(g)(5)), to ensure that the Agency • Will the hospital use a third party (Catalog of Federal Domestic Assistance considers your comment on this draft to report quality data required under the Program No. 93.773, Medicare—Hospital guidance before it begins work on the EHR Incentive Program? Insurance; and Program No. 93.774, final version of the guidance, submit • Are there operational challenges to Medicare—Supplementary Medical either electronic or written comments electronically reporting quality data? If Insurance Program) on the draft guidance by March 4, 2013. so, does the hospital have mitigation Dated: December 21, 2012. ADDRESSES: Submit written requests for plans to overcome these challenges? Marilyn Tavenner, single copies of the documents to the • Has the hospital chief information Acting Administrator, Centers for Medicare Division of Drug Information, Center for officer (CIO) and/or chief operating & Medicaid Services. Drug Evaluation and Research, Food officer (COO) prioritized electronically [FR Doc. 2012–31582 Filed 12–28–12; 11:15 am] and Drug Administration, 10903 New reporting quality data over the next 3 BILLING CODE 4120–01–P Hampshire Ave., Bldg. 51, Rm. 2201, years (2013 through 2015)? Silver Spring, MD 20993–0002 or the • Are there any evaluation or data Office of Communication, Outreach and validation methodologies that have been DEPARTMENT OF HEALTH AND Development (HFM–40), Center for used by the hospital to assess the HUMAN SERVICES Biologics Evaluation and Research, accuracy and reliability of clinical Food and Drug Administration, 1401 process of care quality data using QRDA Food and Drug Administration Rockville Pike, Suite 200N, Rockville, category I standards? • What barriers and opportunities [Docket No. FDA–2012–D–1256] MD 20852–1448. Send one self- would be created by including sampling addressed adhesive label to assist that Draft Revision of Guidance for Industry office in processing your requests. See criteria for electronically reported on Providing Regulatory Submissions measures under the EHR Incentive the SUPPLEMENTARY INFORMATION section in Electronic Format—Certain Human for electronic access to the documents. Program? Pharmaceutical Product Applications We are specifically soliciting Submit electronic comments on the and Related Submissions Using the comments from EHR vendors and other draft guidance to http:// Electronic Common Technical interested parties in the following areas: www.regulations.gov. Submit written Document Specifications; Availability • Is the EHR vendor’s technology comments to the Division of Dockets Management (HFA–305), Food and Drug currently certified under the Office of AGENCY: Food and Drug Administration, Administration, 5630 Fishers Lane, Rm. the National Coordinator for Health HHS. 1061, Rockville, MD 20852. Information Technology (ONC) Health ACTION: Notice. Information Technology (HIT) FOR FURTHER INFORMATION CONTACT: Certification Program to the 2001 SUMMARY: The Food and Drug Virginia Hussong, Center for Drug Edition EHR Certification Criteria? Does Administration (FDA) is announcing the Evaluation and Research, Food and the vendor intend to have its EHR availability of draft guidance for Drug Administration, 10903 New technology certified to the 2014 Edition industry entitled ‘‘Providing Regulatory Hampshire Ave., Bldg. 22, Rm. 1161, EHR Certification Criteria? If so, when? Submissions in Electronic Format— Silver Spring, MD 20993, email: • What are the top three operational Certain Human Pharmaceutical Product [email protected]; challenges facing EHR vendors over the Applications and Related Submissions or next 3 years (2013 through 2015)? Of Using the eCTD Specifications.’’ The Stephen Ripley, Center for Biologics those identified, does the EHR vendor draft guidance announced in this notice Evaluation and Research (HFM–17), have mitigation plans to overcome these is being issued in accordance with the Food and Drug Administration, 1401 challenges? Food and Drug Administration Safety Rockville Pike, Suite 200N, Rockville, • Are there any evaluation or data and Innovation Act (FDASIA) which MD 20852, 301–827–6210. validation methodologies that have been amended the Federal Food, Drug, and SUPPLEMENTARY INFORMATION: used to assess the accuracy and Cosmetic Act (the FD&C Act) to require reliability of clinical process of care that certain submissions under the I. Background quality data using QRDA category I FD&C Act and Public Health Service Act The electronic Common Technical standards? (PHS Act) be submitted in electronic Document (eCTD) is an International • Have vendors included random format, beginning no earlier than 2 years Conference on Harmonisation (ICH) sampling functionalities in currently after publication of the final version of standard based on specifications

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developed by ICH and its member practice (GGP) regulations, such as the There may be new costs, including parties. FDA’s Center for Drug requirement that guidances not establish capital costs or operating and Evaluation and Research (CDER) and legally enforceable responsibilities. See maintenance costs, which would result Center for Biologics Evaluation and 21 CFR 10.115(d). from the requirements under FDASIA Research (CBER) have been receiving At the same time, the draft guidance and the final guidance, because some submissions in the eCTD format since also provides guidance on FDA’s sponsors and applicants would have to 2003, and the eCTD has been the interpretation of the statutory electronic convert from paper-based submissions recommended format for electronic submission requirement and the to electronic submissions. In accordance submissions to CDER and CBER since Agency’s current thinking on the best with the PRA, prior to publication of the January 1, 2008. The majority of new means for implementing other aspects of final guidance document, FDA intends electronic submissions are now received the electronic submission program. to solicit public comment and obtain in eCTD format. Therefore, to the extent that the draft OMB approval for any costs that are FDASIA (Pub. L. 112–144, 126 Stat. guidance includes provisions that are 993 (2012)), signed by the President on new or that would represent material not part of the requirements under modifications to these previously July 9, 2012, amended the FD&C Act to section 745A(a), it is being issued in approved collections of information add section 745A, titled ‘‘Electronic accordance with FDA’s GGP regulation found in FDA regulations. Format for Submissions.’’ Section (21 CFR 10.115). Such parts of the draft 745A(a)(1) of the FD&C Act requires that guidance, when finalized, will represent III. Comments submissions under section 505(b), (i), or the Agency’s current thinking on this (j) of the FD&C Act, and submissions topic, and do not create or confer any Interested persons may submit either under sections 351(a) or (k) of the PHS rights for or on any person and do not electronic comments to http:// Act, be submitted to FDA in electronic operate to bind FDA or the public. You www.regulations.gov or written format no earlier than 24 months after can use an alternative approach for comments regarding this document to FDA issues the final guidance described these recommendations if such an the Division of Dockets Management in this section. approach would satisfy the (see ADDRESSES). It is only necessary to In accordance with section 745A(a)(1) requirements of the applicable statutes send one set of comments. Identify of the FD&C Act, FDA is issuing this and regulations. The use of the word draft guidance, announcing its comments with the docket number should in the draft guidance means that determination that submission types found in brackets in the heading of this something is suggested or identified in this draft guidance must be document. Received comments may be recommended, but not required. submitted electronically (except for seen in the Division of Dockets Accordingly, the final guidance will submissions that are exempted), in a Management between 9 a.m. and 4 p.m., format that FDA can process, review, contain both binding and nonbinding Monday through Friday, and will be and archive. Currently, the Agency can provisions. posted to the docket at http:// process, review, and archive electronic II. Paperwork Reduction Act of 1995 www.regulations.gov. submissions made using the eCTD IV. Electronic Access version 3.2.2 specifications. The draft guidance refers to Requirements for electronic submission collections of information that are subject to review by the Office of Persons with access to the Internet will be phased in according to the may obtain the document at either following schedule: (1) 24 months after Management and Budget (OMB) under the Paperwork Reduction Act of 1995 http://www.fda.gov/Drugs/Development publication of the final version of this ApprovalProcess/FormsSubmission draft revised guidance, the requirements (the PRA) (44 U.S.C. 3501–3520). The Requirements/ElectronicSubmissions/ will apply to new drug application draft guidance pertains to sponsors and ucm253101.htm, http://www. (NDA), abbreviated new drug applicants making regulatory application (ANDA), and biologics submissions to FDA in electronic format regulations.gov, or http://www.fda.gov/ license application (BLA) submissions for NDAs, ANDAs, BLAs, INDs, master BiologicsBloodVaccines/ and (2) 36 months after publication of files, and advertising and promotional GuidanceComplianceRegulatory the final guidance, the requirements labeling. The information collection Information/Guidances/default.htm. will apply to investigational new drug discussed in the draft guidance is Persons with access to the Internet application (IND) submissions. Section contained in our IND regulations (21 may obtain the document at either 745A(a) of the FD&C Act does not apply CFR part 312) and approved under OMB http://www.fda.gov/Drugs/Development control number 0910–0014, our NDA to master files and advertising and ApprovalProcess/FormsSubmission regulations (including ANDAs) (21 CFR promotional labeling submissions. Requirements/ElectronicSubmissions/ part 314) and approved under OMB However, FDA accepts and strongly ucm253101.htm, http:// encourages the submission of master control number 0910–0001, and our BLA regulations (21 CFR part 601) and www.regulations.gov, or files and advertising and promotional http://www.fda.gov/Biologics labeling materials electronically, as approved under OMB control number BloodVaccines/GuidanceCompliance described in the draft guidance. 0910–0338. In Section 745A(a), Congress granted Sponsors and applicants have been RegulatoryInformation/Guidances/ explicit authorization to FDA to submitting NDAs, ANDAs, BLAs, and default.htm. implement the statutory electronic INDs electronically since 2003, and the Dated: December 27, 2012. submission requirements by specifying majority of these submissions are Leslie Kux, the format for such submissions in already received in electronic format. Assistant Commissioner for Policy. guidance. To the extent that the draft Under FDASIA, sponsors and applicants [FR Doc. 2012–31577 Filed 12–31–12; 8:45 am] guidance provides such requirements will be required to make all of these under section 745A(a) of the FD&C Act, submissions electronically. These BILLING CODE 4160–01–P indicated by the use of the words must requirements will be phased in over 2 or required, it is not subject to the usual and 3 year periods after the issuance of restrictions in FDA’s good guidance the final guidance.

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DEPARTMENT OF HEALTH AND Programs Review Branch, Division of Rooms 9 and 10, 31 Center Drive, Bethesda, HUMAN SERVICES Extramural Activities, National Cancer MD 20892. Institute, NIH, 6116 Executive Blvd. Room Contact Person: Sheila A. Prindiville, MD, National Institutes of Health 8131, Bethesda, MD 20892, 301–594–1402, MPH, Director, Coordinating Center for [email protected]. Clinical Trials, Office of the Director, National Cancer Institute; Notice of Name of Committee: National Cancer National Cancer Institute, National Institutes of Health, 6120 Executive Blvd., 3rd Floor Closed Meetings Institute Special Emphasis Panel, NCI Program Project Meeting III. Suite, Bethesda, MD 20892, 301–451–5048, Pursuant to section 10(d) of the Date: February 19–20, 2013. [email protected]. Federal Advisory Committee Act, as Time: 8:00 a.m. to 5:00 p.m. Information is also available on the amended (5 U.S.C. App.), notice is Agenda: To review and evaluate grant Institute’s/Center’s home page: http:// hereby given of the following meetings. applications. deainfo.nci.nih.gov/advisory/ctac/ctac.htm, Place: Hilton Washington/Rockville, 1750 where an agenda and any additional The meetings will be closed to the information for the meeting will be posted public in accordance with the Rockville Pike, Rockville, MD 20852. Contact Person: Jeannette F. Korczak, when available. provisions set forth in sections Ph.D., Scientific Review Officer, Research Any interested person may file written 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Programs Review Branch, Division of comments with the committee by forwarding as amended. The grant applications and Extramural Activities, National Cancer the statement to the Contact Person listed on the discussions could disclose Institute, NIH, 6116 Executive Blvd., Room this notice. The statement should include the confidential trade secrets or commercial 8115, Bethesda, MD 20892, 301–496–9767, name, address, telephone number and when [email protected]. applicable, the business or professional property such as patentable material, affiliation of the interested person. and personal information concerning (Catalogue of Federal Domestic Assistance (Catalogue of Federal Domestic Assistance Program Nos. 93.392, Cancer Construction; individuals associated with the grant Program Nos. 93.392, Cancer Construction; 93.393, Cancer Cause and Prevention applications, the disclosure of which 93.393, Cancer Cause and Prevention Research; 93.394, Cancer Detection and would constitute a clearly unwarranted Research; 93.394, Cancer Detection and invasion of personal privacy. Diagnosis Research; 93.395, Cancer Diagnosis Research; 93.395, Cancer Treatment Research; 93.396, Cancer Biology Treatment Research; 93.396, Cancer Biology Name of Committee: National Cancer Research; 93.397, Cancer Centers Support; Research; 93.397, Cancer Centers Support; Institute Special Emphasis Panel, U.S.— 93.398, Cancer Research Manpower; 93.399, 93.398, Cancer Research Manpower; 93.399, China Program for Biomedical Collaborative Cancer Control, National Institutes of Health, Cancer Control, National Institutes of Health, Research (R01). HHS) HHS) Date: January 28, 2013. Time: 8:00 a.m. to 5:00 p.m. Dated: December 27, 2012. Dated: December 27, 2012. Agenda: To review and evaluate grant Melanie J. Gray, Melanie J. Gray, applications. Program Analyst, Office of Federal Advisory Program Analyst, Office of Federal Advisory Place: Hilton Washington/Rockville, 1750 Committee Policy. Committee Policy. Rockville Pike, Rockville, MD 20852. [FR Doc. 2012–31551 Filed 1–2–13; 8:45 am] [FR Doc. 2012–31550 Filed 1–2–13; 8:45 am] Contact Person: Zhiqiang Zou, MD, Ph.D., BILLING CODE 4140–01–P Scientific Review Officer, Special Review BILLING CODE 4140–01–P and Logistics Branch, Division of Extramural Activities, National Cancer Institute, NIH, 6116 Executive Blvd., Room 8055A, MSC DEPARTMENT OF HEALTH AND DEPARTMENT OF HEALTH AND 8329, Bethesda, MD 20892, 301–402–9415, HUMAN SERVICES HUMAN SERVICES [email protected]. National Institutes of Health Name of Committee: National Cancer National Institutes of Health Institute Special Emphasis Panel, NCI SPORE National Cancer Institute; Notice of III. Center for Scientific Review; Notice of Date: February 6–7, 2013. Meeting Closed Meetings Time: 8:00 a.m. to 5:00 p.m. Pursuant to section 10(a) of the Pursuant to section 10(d) of the Agenda: To review and evaluate grant Federal Advisory Committee Act, as Federal Advisory Committee Act, as applications. amended (5 U.S.C. App.), notice is Place: Bethesda North Marriott Hotel & amended (5 U.S.C. App.), notice is Conference Center, Montgomery County hereby given of a meeting of the hereby given of the following meetings. Conference Center Facility, 5701 Marinelli National Cancer Institute Clinical Trials The meetings will be closed to the Road, North Bethesda, MD 20852. and Translational Research Advisory public in accordance with the Contact Person: David G. Ransom, Ph.D., Committee. provisions set forth in sections Scientific Review Officer, Research Programs The meeting will be open to the 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Review Branch, Division of Extramural public, with attendance limited to space as amended. The grant applications and Activities, National Cancer Institute, NIH, available. Individuals who plan to the discussions could disclose 6116 Executive Blvd., Room 8133, Bethesda, attend and need special assistance, such confidential trade secrets or commercial MD 20892–8328, 301–451–4757, as sign language interpretation or other property such as patentable material, [email protected]. reasonable accommodations, should and personal information concerning Name of Committee: National Cancer notify the Contact Person listed below individuals associated with the grant Institute Special Emphasis Panel, NCI SPORE applications, the disclosure of which II. in advance of the meeting. Date: February 6–7, 2013. Name of Committee: National Cancer would constitute a clearly unwarranted Time: 8:00 a.m. to 5:00 p.m. Institute Clinical Trials and Translational invasion of personal privacy. Agenda: To review and evaluate grant Research Advisory Committee. Name of Committee: Integrative, applications. Date: March 13, 2013. Functional and Cognitive Neuroscience Place: Bethesda North Marriott Hotel & Time: 9:00 a.m. to 4:00 p.m. Integrated Review Group Neurotoxicology Conference Center, Montgomery County Agenda: Strategic Discussion of NCI’s and Alcohol Study Section. Conference Center Facility, 5701 Marinelli Clinical and Translational Research Date: February 4, 2013. Road, North Bethesda, MD 20852. Programs. Time: 8:00 a.m. to 6:00 p.m. Contact Person: Wlodek Lopaczynski, MD, Place: National Institutes of Health, Agenda: To review and evaluate grant Ph.D., Scientific Review Officer, Research Building 31, C-Wing, 6th Floor, Conference applications.

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Place: Sheraton Delfina Santa Monica Name of Committee: Oncology 2— Dated: December 27, 2012. Hotel, 530 West Pico Boulevard, Santa Translational Clinical Integrated Review David Clary, Monica, CA 90405. Group, Clinical Oncology Study Section. Program Analyst, Office of Federal Advisory Contact Person: Christine Melchior, Ph.D., Date: February 4, 2013. Committee Policy. Scientific Review Officer, Center for Time: 8:00 a.m. to 6:00 p.m. [FR Doc. 2012–31553 Filed 1–2–13; 8:45 am] Scientific Review, National Institutes of Agenda: To review and evaluate grant BILLING CODE 4140–01–P Health, 6701 Rockledge Drive, Room 5176 applications. MSC 7844, Bethesda, MD 20892, (301) 435– Place: Crowne Plaza Tyson’s Corner, 1960 1713, [email protected]. Chain Bridge Road, Mclean, VA 22102. DEPARTMENT OF HEALTH AND Name of Committee: Digestive, Kidney and Contact Person: Malaya Chatterjee, Ph.D., HUMAN SERVICES Urological Systems Integrated Review Group Scientific Review Officer, Center for Clinical, Integrative and Molecular Scientific Review, National Institutes of Gastroenterology Study Section. National Institutes of Health Health, 6701 Rockledge Drive, Room 6192, Date: February 4, 2013. Time: 8:00 a.m. to 7:00 p.m. MSC 7804, Bethesda, MD 20892, 301–806– National Cancer Institute; Notice of Agenda: To review and evaluate grant 2515, [email protected]. Meeting applications. Name of Committee: Risk, Prevention and Place: Residence Inn Bethesda, 7335 Health Behavior Integrated Review Group, Pursuant to section 10(a) of the Wisconsin Avenue, Bethesda, MD 20814. Behavioral Medicine, Interventions and Federal Advisory Committee Act, as Contact Person: Mushtaq A. Khan, Ph.D., Outcomes Study Section. amended (5 U.S.C. App.), notice is Scientific Review Officer, Center for Date: February 4–5, 2013. hereby given of a meeting of the Scientific Review, National Institutes of Time: 8:00 a.m. to 5:00 p.m. National Cancer Institute Board of Health, 6701 Rockledge Drive, Room 2176, Agenda: To review and evaluate grant Scientific Advisors ad hoc MSC 7818, Bethesda, MD 20892, 301–435– applications. Subcommittee on HIV and AIDS 1778, [email protected]. Place: Doubletree Guest Suites Santa Malignancy. Name of Committee: Digestive, Kidney and Monica, 1707 Fourth Street, Santa Monica, The meeting will be open to the Urological Systems Integrated Review Group, CA 90401. public, with attendance limited to space Pathobiology of Kidney Disease Study Contact Person: Lee S. Mann, Ph.D., Section. available. Individuals who plan to Scientific Review Officer, Center for attend and need special assistance, such Date: February 4, 2013. Scientific Review, National Institutes of Time: 8:00 a.m. to 7:00 p.m. as sign language interpretation or other Health, 6701 Rockledge Drive, Room 3186, Agenda: To review and evaluate grant reasonable accommodations, should MSC 7848, Bethesda, MD 20892, 301–435– applications. notify the Contact Person listed below 0677, [email protected]. Place: Hyatt Regency Bethesda, One in advance of the meeting. Bethesda Metro Center, 7400 Wisconsin Name of Committee: Cell Biology Avenue, Bethesda, MD 20814. Integrated Review Group, Development—2 Name of Committee: National Cancer Institute Board of Scientific Advisors Ad hoc Contact Person: Atul Sahai, Ph.D., Study Section. Subcommittee on HIV and AIDS Malignancy. Scientific Review Officer, Center for Date: February 4–5, 2013. Date: February 14, 2013. Scientific Review, National Institutes of Time: 8:00 a.m. to 5:00 p.m. Time: 9:00 a.m. to 4:00 p.m. Health, 6701 Rockledge Drive, Room 2188, Agenda: To review and evaluate grant Agenda: Discussion of HIV and AIDS MSC 7818, Bethesda, MD 20892, 301–435– applications. Malignancy. 1198, [email protected]. Place: Embassy Suites at the Chevy Chase Place: National Institutes of Health, Name of Committee: Oncology 2— Pavilion, 4300 Military Road NW., Natcher Building, Conference Room A, 45 Translational Clinical Integrated Review Washington, DC 20015. Center Drive, Bethesda, MD 20892. Group, Developmental Therapeutics Study Contact Person: Rass M. Shayiq, Ph.D., Contact Person: Robert Yarchoan, MD, Section. Scientific Review Officer, Center for Director, HIV/AIDS Management Branch, Date: February 4–5, 2013. Scientific Review, National Institute of NIH/NCI, Building 10, Room 10S255, 10 Time: 8:00 a.m. to 6:00 p.m. Health, 6701 Rockledge Drive, Room 2182, Center Drive, Bethesda, MD 20892–186, 301– Agenda: To review and evaluate grant MSC 7818, Bethesda, MD 20892, (301) 435– 496–0328, [email protected]. applications. 2359, [email protected]. Any interested person may file written Place: Sheraton La Jolla Hotel, 3299 comments with the committee by forwarding Holiday Court, La Jolla, CA 92037. Name of Committee: Center for Scientific the statement to the Contact Person listed on Contact Person: Sharon K. Gubanich, Review Special Emphasis Panel, RFA Panel: this notice. The statement should include the Ph.D., Scientific Review Officer, Center for Investigations on Primary Immunodeficiency name, address, telephone number and when Scientific Review, National Institutes of Diseases. applicable, the business or professional Health, 6701 Rockledge Drive, Room 6214, Date: February 4, 2013. affiliation of the interested person. MSC 7804, Bethesda, MD 20892, (301) 408– Time: 12:00 p.m. to 3:00 p.m. In the interest of security, NIH has 9512, [email protected]. Agenda: To review and evaluate grant instituted stringent procedures for entrance Name of Committee: Cell Biology applications. onto the NIH campus. All visitor vehicles, Integrated Review Group, Molecular and Place: National Institutes of Health, 6701 including taxicabs, hotel, and airport shuttles Integrative Signal Transduction Study Rockledge Drive, Bethesda, MD 20892, will be inspected before being allowed on Section. (Virtual Meeting). campus. Visitors will be asked to show one Date: February 4, 2013. Contact Person: Scott Jakes, Ph.D., form of identification (for example, a Time: 8:00 a.m. to 5:00 p.m. Scientific Review Officer, Center for government-issued photo ID, driver’s license, or passport) and to state the purpose of their Agenda: To review and evaluate grant Scientific Review, National Institutes of visit. applications. Health, 6701 Rockledge Drive, Room 4198, Place: Embassy Suites Chevy Chase, 4300 Information is also available on the MSC 7812, Bethesda, MD 20892, 301–495– Institute’s/Center’s home page: http:// Military Road Northwest, Washington, DC 1506, [email protected]. 20015. deainfo.nci.nih.gov/advisory/bsa/bsa.htm, Contact Person: Raya Mandler, Ph.D., (Catalogue of Federal Domestic Assistance where an agenda and any additional Scientific Review Officer, Center for Program Nos. 93.306, Comparative Medicine; information for the meeting will be posted Scientific Review, National Institutes of 93.333, Clinical Research, 93.306, 93.333, when available. Health, 6701 Rockledge Drive, Room 5134, 93.337, 93.393–93.396, 93.837–93.844, (Catalogue of Federal Domestic Assistance MSC 7840, Bethesda, MD 20892, (301) 402– 93.846–93.878, 93.892, 93.893, National Program Nos. 93.392, Cancer Construction; 8228, [email protected]. Institutes of Health, HHS) 93.393, Cancer Cause and Prevention

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Research; 93.394, Cancer Detection and DEPARTMENT OF HEALTH AND Instrumented Initial Testing Facilities Diagnosis Research; 93.395, Cancer HUMAN SERVICES (IITF) must meet in order to conduct Treatment Research; 93.396, Cancer Biology drug and specimen validity tests on Research; 93.397, Cancer Centers Support; Substance Abuse and Mental Health urine specimens for Federal agencies. 93.398, Cancer Research Manpower; 93.399, Services Administration To become certified, an applicant Cancer Control, National Institutes of Health, Laboratory/IITF must undergo three HHS) Current List of Laboratories and rounds of performance testing plus an Dated: December 27, 2012. Instrumented Initial Testing Facilities on-site inspection. To maintain that Melanie J. Gray, Which Meet Minimum Standards To certification, a Laboratory/IITF must Program Analyst, Office of Federal Advisory Engage in Urine Drug Testing for participate in a quarterly performance Committee Policy. Federal Agencies testing program plus undergo periodic, [FR Doc. 2012–31552 Filed 1–2–13; 8:45 am] AGENCY: Substance Abuse and Mental on-site inspections. BILLING CODE 4140–01–P Health Services Administration, HHS. Laboratories and Instrumented Initial Testing Facilities (IITF) in the applicant ACTION: Notice. stage of certification are not to be DEPARTMENT OF HEALTH AND SUMMARY: The Department of Health and considered as meeting the minimum HUMAN SERVICES Human Services (HHS) notifies Federal requirements described in the HHS agencies of the Laboratories and Mandatory Guidelines. A Laboratory/ National Institutes of Health Instrumented Initial Testing Facilities IITF must have its letter of certification (IITF) currently certified to meet the from HHS/SAMHSA (formerly: HHS/ National Institute of Allergy and standards of the Mandatory Guidelines NIDA) which attests that it has met Infectious Diseases; Notice of Closed for Federal Workplace Drug Testing minimum standards. Meeting Programs (Mandatory Guidelines). The In accordance with the Mandatory Mandatory Guidelines were first Guidelines dated November 25, 2008 Pursuant to section 10(d) of the published in the Federal Register on (73 FR 71858), the following Federal Advisory Committee Act, as April 11, 1988 (53 FR 11970), and Laboratories and Instrumented Initial amended (5 U.S.C. App.), notice is subsequently revised in the Federal Testing Facilities (IITF) meet the hereby given of the following meeting. Register on June 9, 1994 (59 FR 29908); minimum standards to conduct drug The meeting will be closed to the September 30, 1997 (62 FR 51118); and specimen validity tests on urine public in accordance with the April 13, 2004 (69 FR 19644); November specimens: provisions set forth in sections 25, 2008 (73 FR 71858); December 10, Instrumented Initial Testing Facilities 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., 2008 (73 FR 75122); and on April 30, (IITF) as amended. The grant applications and 2010 (75 FR 22809). the discussions could disclose A notice listing all currently certified None. confidential trade secrets or commercial Laboratories and Instrumented Initial Laboratories property such as patentable material, Testing Facilities (IITF) is published in and personal information concerning the Federal Register during the first ACL Laboratories, 8901 W. Lincoln individuals associated with the grant week of each month. If any Laboratory/ Ave., West Allis, WI 53227, 414–328– applications, the disclosure of which IITF’s certification is suspended or 7840/800–877–7016, (Formerly: would constitute a clearly unwarranted revoked, the Laboratory/IITF will be Bayshore Clinical Laboratory) ACM Medical Laboratory, Inc., 160 invasion of personal privacy. omitted from subsequent lists until such Elmgrove Park, Rochester, NY 14624, time as it is restored to full certification Name of Committee: National Institute of 585–429–2264 Allergy and Infectious Diseases Special under the Mandatory Guidelines. If any Laboratory/IITF has withdrawn Advanced Toxicology Network, 3560 Emphasis Panel, ‘‘NIAID Investigator Air Center Cove, Suite 101, Memphis, Initiated Program Applications (P01).’’ from the HHS National Laboratory TN 38118, 901–794–5770/888–290– Date: January 30, 2013. Certification Program (NLCP) during the Time: 12:00 p.m. to 4:00 p.m. past month, it will be listed at the end 1150 Aegis Analytical Laboratories, 345 Hill Agenda: To review and evaluate grant and will be omitted from the monthly Ave., Nashville, TN 37210, 615–255– applications. listing thereafter. Place: National Institutes of Health, 6700B This notice is also available on the 2400, (Formerly: Aegis Sciences Rockledge Drive, Bethesda, MD 20817, Internet at http:// Corporation, Aegis Analytical (Telephone Conference Call). www.workplace.samhsa.gov and http:// Laboratories, Inc.) Contact Person: Nancy Vazquez- www.drugfreeworkplace.gov. Alere Toxicology Services, 1111 Newton Maldonado, Ph.D., Scientific Review Officer, St., Gretna, LA 70053, 504–361–8989/ Scientific Review Program, DEA/NIAID/NIH/ FOR FURTHER INFORMATION CONTACT: Mrs. 800–433–3823, (Formerly: Kroll DHHS, 6700B Rockledge Drive, MSC–7616, Giselle Hersh, Division of Workplace Laboratory Specialists, Inc., Bethesda, MD 20892–7616, 301–496–3253, Programs, SAMHSA/CSAP, Room Laboratory Specialists, Inc.) [email protected]. 2–1042, One Choke Cherry Road, Alere Toxicology Services, 450 (Catalogue of Federal Domestic Assistance Rockville, Maryland 20857; 240–276– Southlake Blvd., Richmond, VA Program Nos. 93.855, Allergy, Immunology, 2600 (voice), 240–276–2610 (fax). 23236, 804–378–9130, (Formerly: and Transplantation Research; 93.856, SUPPLEMENTARY INFORMATION: The Microbiology and Infectious Diseases Kroll Laboratory Specialists, Inc., Research, National Institutes of Health, HHS) Mandatory Guidelines were initially Scientific Testing Laboratories, Inc.; developed in accordance with Executive Kroll Scientific Testing Laboratories, Dated: December 27, 2012. Order 12564 and section 503 of Public Inc.) David Clary, Law 100–71. The ‘‘Mandatory Baptist Medical Center-Toxicology Program Analyst, Office of Federal Advisory Guidelines for Federal Workplace Drug Laboratory, 11401 I–30, Little Rock, Committee Policy. Testing Programs’’, as amended in the AR 72209–7056, 501–202–2783, [FR Doc. 2012–31549 Filed 1–2–13; 8:45 am] revisions listed above, requires strict (Formerly: Forensic Toxicology BILLING CODE 4140–01–P standards that Laboratories and Laboratory Baptist Medical Center)

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Clinical Reference Lab, 8433 Quivira University of Texas Medical Branch, Canadian laboratories will continue under Road, Lenexa, KS 66215–2802, 800– Clinical Chemistry Division; UTMB DOT authority. The responsibility for 445–6917 Pathology-Toxicology Laboratory) conducting quarterly performance testing Doctors Laboratory, Inc., 2906 Julia Pacific Toxicology Laboratories, 9348 plus periodic on-site inspections of those LAPSA-accredited laboratories was Drive, Valdosta, GA 31602, 229–671– DeSoto Ave., Chatsworth, CA 91311, transferred to the U.S. HHS, with the HHS’ 2281 800–328–6942, (Formerly: Centinela NLCP contractor continuing to have an active DrugScan, Inc., 200 Precision Road, Hospital Airport Toxicology role in the performance testing and Suite 200, Horsham, PA 19044, 800– Laboratory) laboratory inspection processes. Other 235–4890 Pathology Associates Medical Canadian laboratories wishing to be ElSohly Laboratories, Inc., 5 Industrial Laboratories, 110 West Cliff Dr., considered for the NLCP may apply directly Park Drive, Oxford, MS 38655, 662– Spokane, WA 99204, 509–755–8991/ to the NLCP contractor just as U.S. 236–2609 800–541–7891 x7 laboratories do. Gamma-Dynacare Medical Phamatech, Inc., 10151 Barnes Canyon Upon finding a Canadian laboratory to be Laboratories,* a Division of the qualified, HHS will recommend that DOT Road, San Diego, CA 92121, 858–643– certify the laboratory (Federal Register, July Gamma-Dynacare Laboratory 5555 16, 1996) as meeting the minimum standards Partnership, 245 Pall Mall Street, Quest Diagnostics Incorporated, 1777 of the Mandatory Guidelines published in the London, ONT, Canada N6A 1P4, 519– Montreal Circle, Tucker, GA 30084, Federal Register on April 30, 2010 (75 FR 679–1630 800–729–6432, (Formerly: SmithKline 22809). After receiving DOT certification, the Laboratory Corporation of America Beecham Clinical Laboratories; laboratory will be included in the monthly Holdings, 7207 N. Gessner Road, SmithKline Bio-Science Laboratories) list of HHS-certified laboratories and Houston, TX 77040, 713–856–8288/ Quest Diagnostics Incorporated, 400 participate in the NLCP certification 800–800–2387 Egypt Road, Norristown, PA 19403, maintenance program. Laboratory Corporation of America 610–631–4600/877–642–2216, Janine Denis Cook, Holdings, 69 First Ave., Raritan, NJ (Formerly: SmithKline Beecham Chemist, Division of Workplace Programs, 08869, 908–526–2400/800–437–4986, Clinical Laboratories; SmithKline Bio- Center for Substance Abuse Prevention, (Formerly: Roche Biomedical Science Laboratories) SAMHSA. Laboratories, Inc.) Quest Diagnostics Incorporated, 8401 [FR Doc. 2012–31573 Filed 1–2–13; 8:45 am] Laboratory Corporation of America Fallbrook Ave., West Hills, CA 91304, BILLING CODE 4160–20–P Holdings, 1904 Alexander Drive, 818–737–6370, (Formerly: SmithKline Research Triangle Park, NC 27709, Beecham Clinical Laboratories) 919–572–6900/800–833–3984, Redwood Toxicology Laboratory, 3650 DEPARTMENT OF HOMELAND (Formerly: LabCorp Occupational Westwind Blvd., Santa Rosa, CA SECURITY Testing Services, Inc., CompuChem 95403, 707–570–4434 Laboratories, Inc.; CompuChem South Bend Medical Foundation, Inc., U.S. Customs and Border Protection Laboratories, Inc., a Subsidiary of 530 N. Lafayette Blvd., South Bend, Roche Biomedical Laboratory; Roche IN 46601, 574–234–4176 x1276 Reopening of Application Period for CompuChem Laboratories, Inc., a Southwest Laboratories, 4625 E. Cotton Participation in the Air Cargo Advance Member of the Roche Group) Center Boulevard, Suite 177, Phoenix, Screening (ACAS) Pilot Program Laboratory Corporation of America AZ 85040, 602–438–8507/800–279– Holdings, 1120 Main Street, 0027 Correction Southaven, MS 38671, 866–827–8042/ STERLING Reference Laboratories, 2617 In notice document 2012–30922, 800–233–6339, (Formerly: LabCorp East L Street, Tacoma, Washington appearing on page 76064 in the issue of Occupational Testing Services, Inc.; 98421, 800–442–0438 Wednesday, December 26, 2012, make MedExpress/National Laboratory Toxicology & Drug Monitoring the following correction: Center) Laboratory, University of Missouri In the second column, in the first line, LabOne, Inc. d/b/a Quest Diagnostics, Hospital & Clinics, 301 Business Loop ‘‘January 8, 2013’’ is corrected to read 10101 Renner Blvd., Lenexa, KS 70 West, Suite 208, Columbia, MO ‘‘January 10, 2013’’. 66219, 913–888–3927/800–873–8845, 65203, 573–882–1273 In the third column, in the 8th line, (Formerly: Quest Diagnostics U.S. Army Forensic Toxicology Drug ‘‘January 8, 2013’’ is corrected to read Incorporated; LabOne, Inc.; Center for Testing Laboratory, 2490 Wilson St., ‘‘January 10, 2013’’. Laboratory Services, a Division of Fort George G. Meade, MD 20755– [FR Doc. C1–2012–30922 Filed 1–2–13; 8:45 am] LabOne, Inc.) 5235, 301–677–7085 BILLING CODE 1505–01–D MedTox Laboratories, Inc., 402 W. The following laboratory voluntarily County Road D, St. Paul, MN 55112, withdrew from the NLCP on December 651–636–7466/800–832–3244 31, 2012: DEPARTMENT OF HOUSING AND MetroLab-Legacy Laboratory Services, Maxxam Analytics,* 6740 Campobello URBAN DEVELOPMENT 1225 NE 2nd Ave., Portland, OR Road, Mississauga, ON, Canada L5N 97232, 503–413–5295/800–950–5295 [Docket No. FR–5604–N–17] Minneapolis Veterans Affairs Medical 2L8, 905–817–5700, (Formerly: Center, Forensic Toxicology Maxxam Analytics Inc., NOVAMANN Notice of Proposed Information; Laboratory, 1 Veterans Drive, (Ontario), Inc.) Collection for Public Comment; Minneapolis, MN 55417, 612–725– * The Standards Council of Canada (SCC) Continuum of Care Program 2088 voted to end its Laboratory Accreditation Application—Technical Submission National Toxicology Laboratories, Inc., Program for Substance Abuse (LAPSA) effective May 12, 1998. Laboratories certified AGENCY: Office of the Assistant 1100 California Ave., Bakersfield, CA through that program were accredited to Secretary for Community Planning and 93304, 661–322–4250/800–350–3515 conduct forensic urine drug testing as Development, HUD. One Source Toxicology Laboratory, Inc., required by U.S. Department of ACTION: Notice of proposed information 1213 Genoa-Red Bluff, Pasadena, TX Transportation (DOT) regulations. As of that collection. 77504, 888–747–3774, (Formerly: date, the certification of those accredited

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SUMMARY: The proposed information Title of Proposal: Continuum of Care hours of response: Once a project is collection requirement described below Program Application—Technical conditionally awarded, all applicants will be submitted to the Office of Submission. with new projects must complete the Management and Budget (OMB) for Description of the need for the appropriate Technical Submission review, as required by the Paperwork information proposed: This submission forms in e-snaps to receive funding. Reduction Act. The Department is is to request a reinstatement with Each type of project will require a soliciting public comments on the revisions of an expired information unique set of forms to meet compliance, subject proposal. collection for reporting burden and so the estimates below represent an DATES: Comments Due Date: February associated with the Technical average of applicants that have several 26, 2013. Submission phase of the Continuum of forms to complete. We are anticipating Care (CoC) Program Application. This a maximum of 750 responses this year, ADDRESSES: Interested persons are submission is limited to the Technical with each respondent completing only 1 invited to submit comments regarding Submission process under the CoC technical submission at 8 hours per this proposal. Comments should refer to Program interim rule, formerly under response for a total of 6,000 hours. the proposal by name/or OMB Control the Supportive Housing Program and While much of the content remains the number and should be sent to: Colette the Shelter Plus Care Program and same as in the previous collection, we Pollard, Departmental Reports changed to match the new program have estimated that the move to an Management Officer, QDAM, name created through the HEARTH Act. electronic collection will save a Department of Housing and Urban Applicants who are successful in the minimum average of 1 hour per Development, 451 7th Street SW., Room Continuum of Care Program Homeless response, for a total savings of 750 4160, Washington, DC 20410–5000; Assistance Grant competition are hours. telephone (202) 402–3400, (this is not a required to submit more detailed Status of proposed information toll-free number) or email Ms. Pollard at technical information before grant collection: Reinstatement, with change, [email protected] for a copy of agreement. The information to be of previously approved collection for proposed forms, or other available collected will be used to ensure that which approval has expired. information. Persons with hearing or technical requirements are met prior to speech impairments may access this the execution of a grant agreement. The Authority: Section 3506 of the Paperwork number through TTY by calling the toll- technical requirements relate to a more Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended. free Federal Information Relay Service extensive description of the budgets for at (800) 877–8339. supportive services and operations, as Dated: December 20, 2012. FOR FURTHER INFORMATION CONTACT: Ann well as acquisition, rehabilitation, new Mark Johnston, Marie Oliva, Director, Office of Special construction, rental assistance, leasing, Deputy Assistant Secretary for Special Needs Needs Assistance Programs, Office of and sources of financing Programs. Community Planning and Development, documentation. HUD will use this [FR Doc. 2012–31184 Filed 12–27–12; 8:45 am] Department of Housing and Urban detailed information to determine if a BILLING CODE 4210–67–P Development, 451 7th Street SW., Room project is financially feasible and 7262, Washington, DC 20410; telephone whether all proposed activities are (202) 708–1590 (This is not a toll-free eligible. DEPARTMENT OF HOUSING AND number). All information collected is used to URBAN DEVELOPMENT carefully consider conditional SUPPLEMENTARY INFORMATION: The applicants for funding. If HUD collects [Docket No. FR–5673–D–01] Department will submit the proposed less information, or collected it less information collection to OMB for frequently, the Department could not Order of Succession for the Office of review, as required by the Paperwork make a final determination concerning Housing Reduction Act of 1995 (44 U.S.C. the eligibility of applicants for grant AGENCY: Office of the Assistant Chapter 35, as amended). This Notice is funds and conditional applicants would Secretary for Housing—Federal Housing soliciting comments from members of not be eligible to sign grant agreements Commissioner, HUD. the public and affected agencies and receive funding. To see the ACTION: Notice of Order of Succession. concerning the proposed collection of regulations for the new CoC Program information to: (1) Evaluate whether the and applicable supplementary SUMMARY: In this notice, the Acting proposed collection of information is documents, visit HUD’s Homeless Assistant Secretary for Housing necessary for the proper performance of Resource Exchange CoC page at http:// designates the Order of Succession for the functions of the agency, including www.hudhre.info/coc/. The statutory the Office of Housing. This Order of whether the information will have provisions and the implementing Succession supersedes all prior Orders practical utility; (2) evaluate the interim rule (also found at 24 CFR part of Succession for the Assistant Secretary accuracy of the agency’s estimate of the 587) that govern the program require the for Housing, including that published burden of the proposed collection of information provided by the Technical on June 20, 2012 (77 FR 37237). information; (3) enhance the quality, Submission. utility, and clarity of the information to DATES: Effective Date: December 28, Agency Form Numbers: HUD–40090– 2012. be collected; and (4) minimize the 3a, HUD–40090–3b. burden of the collection of information Members of the affected public: FOR FURTHER INFORMATION CONTACT: on those who are to respond, including Conditional recipients of new CoC Laura Marin, Acting General Deputy through the use of appropriate Program grant awards, including Assistant Secretary, Office of Housing, automated collection techniques or nonprofit organizations, local and state Department of Housing and Urban other forms of information technology; governments. Development, 451 Seventh Street SW., e.g., permitting electronic submission of Estimation of the total number of Room 9110, Washington, DC 20410– responses. hours needed to prepare the information 0500; telephone number 202–402–2689 This Notice also lists the following collection including number of (this is not a toll-free number). Persons information: respondents, frequency of response, and with hearing or speech impairments

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may call HUD’s toll-free Federal Relay Section B. Authority Superseded Act of 1968 (12 U.S.C. 1701x et Service at 800–877–8339. This Order of Succession supersedes seq.)(1968 Act). Other statutory SUPPLEMENTARY INFORMATION: The all prior Orders of Succession for the authority also requires HUD to provide, Acting Assistant Secretary for Housing Assistant Secretary for Housing, or cause to be provided, counseling for the Department of Housing and including that published on June 20, assistance, including sections 255(f) and Urban Development is issuing this 2012 (77 FR 37237). (l) of the National Housing Act (relating to Home Equity Conversion Mortgages) Order of Succession of officials Authority: Section 7(d), Department of authorized to perform the functions and (12 U.S.C. 1715z–20) and section 2128 Housing and Urban Development Act, 42 of the Housing and Economic Recovery duties of the Office of Housing when, by U.S.C. 3535(d). Act of 2008 (relating to a pre- reason of absence, disability, or vacancy Dated: December 28, 2012. in office, the Acting Assistant Secretary homeownership counseling Carol J. Galante, is not available to exercise the powers demonstration project) (12 U.S.C. 1701x or perform the duties of the office. This Acting Assistant Secretary for Housing-— note). Other authority for HUD’s Federal Housing Commissioner. Order of Succession is subject to the housing counseling program is provisions of the Federal Vacancies [FR Doc. 2012–31628 Filed 1–2–13; 8:45 am] referenced in section 1442 of the Dodd- Reform Act of 1998 (5 U.S.C. 3345– BILLING CODE 4210–67–P Frank Act (Pub. L. 111–203, approved 3349d). This publication supersedes the July 21, 2010). As the primary authority Order of Succession notice published on for HUD’s housing counseling program, DEPARTMENT OF HOUSING AND June 20, 2012 (77 FR 37237). section 106 is funded annually through URBAN DEVELOPMENT appropriations action under a specific Accordingly, the Acting Assistant appropriations account for housing Secretary for Housing designates the [Docket No. FR–5672–D–01] counseling. Activities under section 106 following Order of Succession: Redelegation of Authority to the include pre-purchase and post-purchase Section A. Order of Succession Deputy Assistant Secretary for homeownership counseling, default and Housing Counseling foreclosure prevention counseling, Subject to the provisions of the counseling for renter households, Federal Vacancies Reform Act of 1998, AGENCY: Office of the Assistant counseling in connection with reverse during any period when, by reason of Secretary for Housing—Federal Housing mortgages and counseling to protect absence, disability, or vacancy in office, Commissioner, HUD. consumers from mortgage fraud. the Acting Assistant Secretary for ACTION: Notice of redelegation of Counseling is provided through HUD- Housing for the Department of Housing uthority. approved housing counseling agencies and Urban Development is not available which receive grants from HUD to SUMMARY: The Dodd-Frank Wall Street to exercise the powers or perform the provide these services. duties of the Office of the Assistant Reform and Consumer Protection Act of Secretary for Housing, the following 2010 (Dodd-Frank Act), amends section Subtitle D of Title XIV of the Dodd- officials within the Office of Housing 106 of the Housing and Urban Frank Act, which consists of sections are hereby designated to exercise the Development Act of 1968 and 1440 through 1452, makes several powers and perform the duties of the authorizes the establishment of an amendments to strengthen HUD’s Acting Assistant Secretary for Housing, Office of Housing Counseling in the housing counseling program. Section including the authority to waive Department of Housing and Urban 1442 amends section 4 of the regulations: Development. This Notice describes Department of Housing and Urban specific organizational steps that HUD Development Act (42 U.S.C. 3533) (1) General Deputy Assistant (Department of HUD Act) to establish an Secretary for Housing; has taken to establish an Office of Housing Counseling and redelegates Office of Housing Counseling within (2) Deputy Assistant Secretary for HUD specifically devoted to Single Family Housing; authority to the Deputy Assistant Secretary for Housing Counseling, a new administration and oversight of housing (3) Deputy Assistant Secretary for position established to have primary counseling agencies, individual Multifamily Housing; responsibility within HUD for all counselors and the counseling services (4) Deputy Assistant Secretary for activities and matters relating to offered under the program. Sections Housing Counseling; homeownership and rental housing 1443, 1444, 1445 and 1448 of the Dodd- (5) Associate General Deputy counseling consistent with section 1442 Frank Act amend section 106 of the Assistant Secretary for Housing; of the Dodd-Frank Act. 1968 Act to improve the effectiveness of HUD’s housing counseling program by, (6) Deputy Assistant Secretary for DATES: Effective Date: December 28, among other things, defining certain Risk Management and Regulatory 2012. Affairs; commonly used terms in the program; FOR FURTHER INFORMATION CONTACT: ensuring that HUD-approved counselors (7) Deputy Assistant Secretary for Office of the Deputy Assistant Secretary provide counseling covering the entire Finance and Budget; for Housing Counseling, 451 7th Street process of homeownership from the (8) Deputy Assistant Secretary for SW., Room 9224, Washington, DC, purchase of a home to its disposition, Operations; 20410, Telephone: 202–708–0317. (This ensuring that rental or homeownership (9) Deputy Assistant Secretary for is not a toll-free number). Persons with counseling required under certain HUD Healthcare Programs. hearing or speech impairments may programs is administered in accordance These officials shall perform the access this number by calling HUD’s with procedures established by HUD, functions and duties of the office in the toll-free Federal Relay Service number and requiring that all HUD-related order specified herein, and no official at 800–877–8339. homeownership counseling and rental shall serve unless all other officials SUPPLEMENTARY INFORMATION: In general, housing counseling is provided by whose position titles precede his/hers in HUD’s major program for housing HUD-certified housing counseling this order are unable to act by reason of counseling is authorized by section 106 agencies through HUD-certified housing absence, disability, or vacancy in office. of the Housing and Urban Development counselors.

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Under delegations of authority internal and external relationships. Section C. Authority Excepted published in the Federal Register on Three offices report to the Office of the The authority redelegated in Section June 20, 2012 (77 FR 37252), the Deputy Assistant Secretary for Housing B does not include the authority to sue authority for carrying out section 106 of Counseling: or be sued or to appoint members of any the Housing and Urban Development • The Office of Policy and Grant advisory committee established to Act of 1968 and other counseling Administration. This office carries out advise the Office of the Deputy provisions established in National research and evaluation activities, grant Assistant Secretary for Housing Housing Act programs was delegated making and administration functions, Counseling. The authority redelegated from the Secretary of HUD to the development of program policies, in Section B does not include authority Assistant Secretary for Housing-Federal procedures and regulations, and to issue or waive any statutory or Housing Commissioner and the General coordination with other offices within regulatory requirement for the program. Deputy Assistant Secretary for Housing- and without HUD which operate Deputy Federal Housing Commissioner. housing counseling programs. The office Section D. Authority to Redelegate In turn, this authority was redelegated is headed by an Office Director and a The authority redelegated in Section to the Deputy Assistant Secretary for Deputy Office Director. B may be redelegated to the Office Single Family Programs and the • The Office of Outreach and Directors and Deputy Directors Associate Deputy Assistant Secretary commensurate with the respective and through them to certain managers Capacity Building. This office conducts outreach, education, training and functions of their office and may be within that organization. further redelegated as appropriate. To implement the Dodd-Frank Act consultation services for program and consolidate responsibility for participants, including housing Section E. Authority Superseded counseling agencies and state and local homeownership and rental housing This redelegation supersedes all governments. The office develops counseling within HUD, the Department previous redelegations of authority with assessed its existing organizational marketing and educational campaigns respect to homeownership and rental framework for providing housing and provides training, technical housing counseling including the counseling services and, with the assistance, and program materials to redelegation of authority published on approval of the Congress, determined to program participants. The office June 20, 2012 (77 FR 37252). establish a new Office of the Deputy provides a central point of contact for Assistant Secretary for Housing program participants. The office ensures Authority: Section 7(d) of the Department Counseling located within the Office of that evaluation results are integrated of Housing and Urban Development Act (42 Housing. The Office of Housing into its outreach activities. The office is U.S.C. 3535(d)); Section 4(g) of the Counseling would continue and expand headed by a Director and Deputy Department of Housing and Urban Development Act (42 U.S.C. 3533(g)), as upon the major homeownership and Director. amended by Section 1442 of the Dodd-Frank rental counseling services already • The Office of Oversight and Wall Street Reform and Consumer Protection performed by the Office of Housing. The Accountability. Functions of the office Act of 2010. functions of the new office are described include review of applications for Dated: December 28, 2012. in Section A., below. approval of agencies and counselors, Today’s notice also redelegates Carol J. Galante, monitoring and evaluation of agencies authority from the Assistant Secretary Acting Assistant Secretary for Housing— and grantees to ensure compliance with for Housing to the Deputy Assistant Federal Housing Commissioner. counseling program requirements, Secretary for Housing Counseling to [FR Doc. 2012–31626 Filed 1–2–13; 8:45 am] tracking and oversight of grant funds, carry out the major homeownership and BILLING CODE 4210–67–P and initiating actions to remove or rental housing counseling programs, sanction non-compliant program including section 106 activities. To the participants. The office assists with extent that today’s notice redelegates DEPARTMENT OF THE INTERIOR program evaluation, grant making, and authority to administer HUD’s housing counseling program, this notice certification functions. The office is Bureau of Land Management headed by a Director and Deputy supersedes the redelegation of authority [LLES956000–L14200000–BJ0000] to the Deputy Assistant Secretary for Director. Single Family Housing published on Section B. Authority Delegated Eastern States: Filing of Plat of Survey, June 20, 2012, with respect to North Carolina homeownership and rental housing The Assistant Secretary for Housing— counseling. Federal Housing Commissioner hereby AGENCY: Bureau of Land Management, redelegates to the Deputy Assistant Interior. Section A. Office of the Deputy Secretary for Housing Counseling and ACTION: Notice. Assistant Secretary for Housing the Associate Deputy Assistant Counseling Secretary for Housing Counseling the SUMMARY: The Bureau of Land The Office of the Deputy Assistant authority to sign documents, establish Management (BLM) will file the plat of Secretary for Housing Counseling, procedures for, and carry out all survey of the land described below in directed by a Deputy Assistant Secretary enumerated functions in connection the BLM—Eastern States office in for Housing Counseling and an with homeownership counseling and Springfield, Virginia, 30 calendar days Associate Deputy Assistant Secretary for rental housing counseling, including but from the date of publication in the Housing Counseling, provides overall not limited to making grants, Federal Register. program and grant management, policy conducting demonstration and outreach FOR FURTHER INFORMATION CONTACT: direction, and strategy (including projects, evaluating program Bureau of Land Management—Eastern outreach activities) for homeownership performance, imposing sanctions on States, 7450 Boston Boulevard, and rental housing counseling program participants, developing Springfield, Virginia 22153. Attn: (including certification) and also certification requirements and providing Dominica Van Koten. Persons who use provides direction and coordination of training and technical assistance. a telecommunications device for the

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deaf (TDD) may call the Federal submitted to OMB for review the Chad Whiteman, Desk Officer, Office of Information Relay Service (FIRS) at 1– following proposal for the collection of Information and Regulatory Affairs 800–877–8339 to contact the above information under the provisions of the (3150–0052), NEOB–10202, Office of individual during normal business Paperwork Reduction Act of 1995 (44 Management and Budget, hours. The FIRS is available 24 hours a U.S.C. Chapter 35). The NRC hereby Washington, DC 20503. day, 7 days a week, to leave a message informs potential respondents that an Comments can also be emailed to or question with the above individual. agency may not conduct or sponsor, and [email protected] or You will receive a reply during normal that a person is not required to respond submitted by telephone at 202–395– business hours. to, a collection of information unless it 4718. SUPPLEMENTARY INFORMATION: The displays a currently valid OMB control The NRC Clearance Officer is survey was requested by the Bureau of number. The NRC published a Federal Tremaine Donnell, 301–415–6258. Indian Affairs, Eastern Region. Register Notice with a 60-day comment Dated at Rockville, Maryland, this 28th day The lands surveyed are: period on this information collection on of December 2012. Swain County, North Carolina September 21, 2012 (77 FR 58586). For the Nuclear Regulatory Commission. 1. Type of submission, new, revision, Tremaine Donnell, The plats of survey represent the or extension: Extension. dependent resurvey of a portion of the NRC Clearance Officer, Office of Information 2. The title of the information Services. Qualla Indian Boundary, lands held in collection: NRC Form 790, Classification [FR Doc. 2012–31618 Filed 1–2–13; 8:45 am] trust for the Eastern Band of Cherokee Record. Indians, Swain County, in the State of 3. Current OMB approval number: BILLING CODE 7590–01–P North Carolina, and was accepted 3150–0052. December 19, 2012. 4. The form number if applicable: NUCLEAR REGULATORY NRC Form 790. Swain County, North Carolina COMMISSION 5. How often the collection is The plat of survey represents the required: On occasion. [Docket No. NRC–2012–0190] dependent resurvey of a portion of the 6. Who will be required or asked to Qualla Indian Boundary, lands held in report: NRC licensees, contractors, and Agency Information Collection trust for the Eastern Band of Cherokee certificate holders who classify and Activities: Submission for the Office of Indians, Swain County, in the State of declassify NRC information. Management and Budget (OMB) North Carolina, and was accepted 7. An estimate of the number of Review; Comment Request December 17, 2012. annual responses: 2,500. AGENCY: Nuclear Regulatory We will place copies of the plats we 8. The estimated number of annual Commission. described in the open files. They will be respondents: 11 (9 NRC licensees and available to the public as a matter of licensees’ contractors and two certificate ACTION: Notice of the OMB review of information. holders). information collection and solicitation If BLM receives a protest against a 9. An estimate of the total number of of public comment. survey, as shown on the plat, prior to hours needed annually to complete the SUMMARY: The U.S. Nuclear Regulatory the date of the official filing, we will requirement or request: 125. Commission (NRC) has recently stay the filing pending our 10. Abstract: Completion of the NRC submitted to OMB for review the consideration of the protest. Form 790 is a mandatory requirement We will not officially file the plat following proposal for the collection of for NRC licensees, contractors, and only information under the provisions of the until the day after we have accepted or certificate holder who classifies and dismissed all protests and they have Paperwork Reduction Act of 1995 (44 declassifies NRC information in U.S.C. chapter 35). The NRC hereby become final, including decisions on accordance with Executive Order 13526, appeals. informs potential respondents that an ‘‘Classified National Security agency may not conduct or sponsor, and Dated: December 27, 2012. Information,’’ the Atomic Energy Act, that a person is not required to respond Dominica Van Koten, and implementing directives. to, a collection of information unless it Chief Cadastral Surveyor. The public may examine and have displays a currently valid OMB control copied for a fee publicly available [FR Doc. 2012–31583 Filed 1–2–13; 8:45 am] number. The NRC published a Federal documents, including the final BILLING CODE P Register Notice with a 60-day comment supporting statement, at the NRC’s period on this information collection on Public Document Room, Room O–1F21, September 21, 2012 (77 FR 58585). One White Flint North, 11555 Rockville NUCLEAR REGULATORY 1. Type of submission, new, revision, Pike, Rockville, Maryland. OMB COMMISSION or extension: Extension. clearance requests are available at the 2. The title of the information [Docket No. NRC–2012–0178] NRC worldwide Web site: http:// collection: NRC Form 531, ‘‘Request for www.nrc.gov/public-involve/doc- Agency Information Collection Taxpayer Identification Number.’’ comment/omb/. The document will be 3. Current OMB approval number: Activities: Submission for the Office of available on the NRC home page site for 3150–0188. Management and Budget (OMB) 60 days after the signature date of this 4. The form number if applicable: Review; Comment Request notice. NRC Form 531. AGENCY: Nuclear Regulatory Comments and questions should be 5. How often the collection is Commission. directed to the OMB reviewer listed required: One time from each applicant ACTION: Notice of the OMB review of below by February 4, 2013. Comments or individual to enable the Department information collection and solicitation received after this date will be of the Treasury to process electronic of public comment. considered if it is practical to do so, but payments or collect debts owed to the assurance of consideration cannot be Government. SUMMARY: The U.S. Nuclear Regulatory given to comments received after this 6. Who will be required or asked to Commission (NRC) has recently date. report: All individuals doing business

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with the U.S. Nuclear Regulatory For the Nuclear Regulatory Commission. SUPPLEMENTARY INFORMATION: Commission, including contractors and Tremaine Donnell, I. Accessing Information and recipients of credit, licenses, permits, NRC Clearance Officer, Office of Information Submitting Comments and benefits. Services. 7. An estimate of the number of [FR Doc. 2012–31619 Filed 1–2–13; 8:45 am] A. Accessing Information annual responses: 300. BILLING CODE 7590–01–P Please refer to Docket ID NRC–2012– 8. The estimated number of annual 0318 when contacting the NRC about respondents: 300. the availability of information regarding 9. An estimate of the total number of NUCLEAR REGULATORY this document. You may access hours needed annually to complete the COMMISSION information related to this document, requirement or request: 25. 10. Abstract: The Debt Collection [Docket Nos. 50–458; NRC–2012–0318] which the NRC possesses and are Improvement Act of 1996 requires that publicly available, by any of the Consideration of Approval of following methods: agencies collect taxpayer identification Application Regarding Proposed • numbers (TINs) from individuals who Federal Rulemaking Web Site: Go to Creation of a Holding Company and http://www.regulations.gov and search do business with the Government, Transfer of Facility Operating License including contractors and recipients of for Docket ID NRC–2012–0318. and Opportunity for a Hearing; River • NRC’s Agencywide Documents credit, licenses, permits, and benefits. Bend Station, Unit 1 Access and Management System The TIN will be used to process all (ADAMS): You may access publicly electronic payments (refunds) made to AGENCY: Nuclear Regulatory available documents online in the NRC licensees by electronic funds transfer by Commission. Library at http://www.nrc.gov/reading- the Department of the Treasury. The ACTION: Request for license transfer; rm/adams.html. To begin the search, Department of the Treasury will use the opportunity to comment; opportunity to select ‘‘ADAMS Public Documents’’ and TIN to determine whether the refund request a hearing and petition for leave then select ‘‘Begin Web-based ADAMS can be used to administratively offset to intervene. Search.’’ For problems with ADAMS, any delinquent debts reported to the please contact the NRC’s Public Treasury by other government agencies. DATES: Comments must be filed by Document Room (PDR) reference staff at In addition, the TIN will be used to February 4, 2013. A request for a 1–800–397–4209, 301–415–4737, or by collect and report to the Department of hearing must be filed by January 23, email to [email protected]. The the Treasury any delinquent 2013. application dated September 27, 2012, indebtedness arising out of the ADDRESSES: You may access information is available electronically under licensee’s or applicant’s relationship and comment submissions related to ADAMS Accession No. ML12275A013. with the NRC. this document, which the NRC • NRC’s PDR: You may examine and The public may examine and have possesses and are publicly available, by copied for a fee publicly available purchase copies of public documents at searching on http://www.regulations.gov the NRC’s PDR, Room O1–F21, One documents, including the final under Docket ID NRC–2012–0318. You supporting statement, at the NRC’s White Flint North, 11555 Rockville may submit comments by any of the Pike, Rockville, Maryland 20852. Public Document Room, Room O–1F21, following methods: One White Flint North, 11555 Rockville • Federal rulemaking Web site: Go to B. Submitting Comments Pike, Rockville, Maryland. OMB http://www.regulations.gov and search Please include Docket ID NRC–2012– clearance requests are available at the for Docket ID NRC–2012–0318. Address 0318 in the subject line of your NRC worldwide Web site: http:// questions about NRC dockets to Carol comment submission, in order to ensure www.nrc.gov/public-involve/doc- Gallagher; telephone: 301–492–3668; that the NRC is able to make your comment/omb/. The document will be email: [email protected]. comment submission available to the available on the NRC home page site for • Mail comments to: Cindy Bladey, public in this docket. 60 days after the signature date of this Chief, Rules, Announcements, and The NRC cautions you not to include notice. Directives Branch (RADB), Office of identifying or contact information that Comments and questions should be Administration, Mail Stop: TWB–05– you do not want to be publicly directed to the OMB reviewer listed B01M, U.S. Nuclear Regulatory disclosed in you comment submission. below by February 4, 2013. Comments Commission, Washington, DC 20555– The NRC will post all comment received after this date will be 0001. submissions at http:// considered if it is practical to do so, but • Fax comments to: RADB at 301– www.regulations.gov as well as enter the assurance of consideration cannot be 492–3446. comment submissions into ADAMS. given to comments received after this For additional direction on accessing The NRC does not routinely edit date. information and submitting comments, comment submissions to remove Chad Whiteman, Desk Officer, Office of see ‘‘Accessing Information and identifying or contact information. Information and Regulatory Affairs Submitting Comments’’ in the If you are requesting or aggregating (3150–0188), NEOB–10202, Office of SUPPLEMENTARY INFORMATION section of comments from other persons for Management and Budget, this document. submission to the NRC, then you should Washington, DC 20503. FOR FURTHER INFORMATION CONTACT: inform those persons not to include Comments can also be emailed to Alan Wang, Project Manager, Plant identifying or contact information that [email protected] or Licensing Branch IV, Division of they do not want to be publicly submitted by telephone at 202–395– Operating Reactor Licensing, Office of disclosed in their comment submission. 4718. Nuclear Reactor Regulation, U.S. Your request should state that the NRC The NRC Clearance Officer is Nuclear Regulatory Commission, does not routinely edit comment Tremaine Donnell, 301–415–6258. Washington, DC 20555. Telephone: submissions to remove such information Dated at Rockville, Maryland, this 28th day 301–415–1445; fax number: 301–415– before making the comment of December, 2012. 2102; email: [email protected]. submissions available to the public or

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entering the comment submissions into establishment of a new holding extent of the petitioner’s interest in the ADAMS. company will not affect the proceeding. The petition should be qualifications of the licensee to hold the submitted to the Commission by January II. Introduction license, and that the transfer is 23, 2013. The petition must be filed in The U.S. Nuclear Regulatory otherwise consistent with applicable accordance with the filing instructions Commission (NRC or the Commission) provisions of law, regulations, and in section IV of this document, and is considering the issuance of an order orders issued by the Commission should meet the requirements for under section 50.80 of Title 10 of the pursuant thereto. petitions for leave to intervene set forth Code of Federal Regulations (10 CFR) As provided in 10 CFR 2.1315, unless in this section, except that under approving the direct transfer of the otherwise determined by the 2.309(h)(2) a State, local governmental Facility Operating License, which is Commission with regard to a specific body, or Federally-recognized Indian numbered NPF–47, for the River Bend application, the Commission has tribe does not need to address the Station, Unit 1 (RBS), and associated determined that any amendment to the standing requirements in 10 CFR Independent Spent Fuel Storage license of a utilization facility which 2.309(d) if the facility is located within Installation, currently held by Entergy does no more than conform the license its boundaries. A State, local Gulf States Louisiana, LLC (EGS–LA), as to reflect the transfer action involves no governmental body, Federally- owner and Entergy Operations, Inc. significant hazards consideration. No recognized Indian Tribe, or agency (EOI), as licensed operator of RBS. The contrary determination has been made thereof may also have the opportunity to direct transfer of the RBS license would with respect to this specific license participate under 10 CFR 2.315(c). be to a new limited liability company amendment application. In light of the Requests for hearing, petitions for also named Entergy Gulf States generic determination reflected in 10 leave to intervene, and motions for leave Louisiana, LLC (New EGS–LA). CFR 2.1315, no public comments with to file new or amended contentions that According to an application for respect to significant hazards are filed after the 20-day deadline will approval filed by EOI on behalf of EGS– considerations are being solicited, not be entertained absent a LA, New EGS–LA would acquire notwithstanding the general comment determination by the presiding officer ownership of the facility previously procedures contained in 10 CFR 50.91. that the filing demonstrates good cause owned by EGS–LA following approval The filing of requests for hearing and by satisfying the following three factors of the proposed license transfer. EOI petitions for leave to intervene, and in 10 CFR 2.309(c)(1): (i) The would remain responsible for the written comments with regard to the information upon which the filing is operation and maintenance of RBS. license transfer application, are based was not previously available; (ii) In addition, the Commission is also discussed below. the information upon which the filing is considering approving associated based is materially different from indirect license transfers to the extent III. Opportunity To Request a Hearing; Petition for Leave To Intervene information previously available; and such would be affected by a formation (iii) the filing has been submitted in a of a new intermediary holding Within 20 days from the date of timely fashion based on the availability company. According to an application publication of this notice, any person(s) of the subsequent information. for approval filed by EOI, on behalf of whose interest may be affected by the EGS–LA, Entergy Corporation will Commission’s action on the application IV. Electronic Submissions (E-Filing) remain as the ultimate parent company, may request a hearing and intervention All documents filed in NRC but a new, intermediate company, via electronic submission through the adjudicatory proceedings, including a Entergy Utilities Holdings, LLC, a NRC’s E-filing system. Requests for a request for hearing, a petition for leave Delaware limited liability company, will hearing and petitions for leave to to intervene, any motion or other be created, which will be the direct intervene should be filed in accordance document filed in the proceeding prior parent company of New EGS–LA and with the Commission’s rules of practice to the submission of a request for EOI. The New EGS–LA will own the set forth in Subpart C ‘‘Rules of General hearing or petition to intervene, and facility and EOI would remain Applicability: Hearing Requests, documents filed by interested responsible for the operation and Petitions to Intervene, Availability of governmental entities participating maintenance of RBS. Documents, Selection of Specific under 10 CFR 2.315(c), must be filed in No physical changes to the RBS Hearing Procedures, Presiding Officer accordance with the NRC’s E-Filing rule facility or operational changes are being Powers, and General Hearing (72 FR 49139; August 28, 2007). The E- proposed in the application. Management for NRC Adjudicatory Filing process requires participants to Pursuant to 10 CFR 50.80, no license, Hearings,’’ of 10 CFR part 2. In submit and serve all adjudicatory or any right thereunder, shall be particular, such requests and petitions documents over the internet, or in some transferred, directly or indirectly, must comply with the requirements set cases to mail copies on electronic through transfer of control of the forth in 10 CFR 2.309, which is storage media. Participants may not license, unless the Commission shall available at the NRC’s PDR, located at submit paper copies of their filings give its consent in writing. The O1F21, 11555 Rockville Pike (first unless they seek an exemption in Commission will approve an floor), Rockville, Maryland 20852. The accordance with the procedures application for the direct transfer of a NRC regulations are accessible described below. license, if the Commission determines electronically from the NRC Library on To comply with the procedural that the proposed transferee is qualified the NRC’s public Web site at http:// requirements of E-Filing, at least 10 to hold the license, and that the transfer www.nrc.gov/reading-rm/doc- days prior to the filing deadline, the is otherwise consistent with applicable collections/cfr/. participant should contact the Office of provisions of law, regulations, and A State, local governmental body, the Secretary by email at orders issued by the Commission Federally-recognized Indian Tribe, or [email protected], or by telephone pursuant thereto. The Commission will agency thereof may submit a petition to at 301–415–1677, to request (1) a digital approve an application for the indirect the Commission to participate as a party identification (ID) certificate, which transfer of a license, if the Commission under 10 CFR 2.309(h)(1) and (2). The allows the participant (or its counsel or determines that the proposed petition should state the nature and representative) to digitally sign

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documents and access the E-Submittal confirming receipt of the document. The available to the public at http:// server for any proceeding in which it is E-Filing system also distributes an email ehd1.nrc.gov/ehd/, unless excluded participating; and (2) advise the notice that provides access to the pursuant to an order of the Commission, Secretary that the participant will be document to the NRC’s Office of the or the presiding officer. Participants are submitting a request or petition for General Counsel and any others who requested not to include personal hearing (even in instances in which the have advised the Office of the Secretary privacy information, such as social participant, or its counsel or that they wish to participate in the security numbers, home addresses, or representative, already holds an NRC- proceeding, so that the filer need not home phone numbers in their filings, issued digital ID certificate). Based upon serve the documents on those unless an NRC regulation or other law this information, the Secretary will participants separately. Therefore, requires submission of such establish an electronic docket for the applicants and other participants (or information. With respect to hearing in this proceeding if the their counsel or representative) must Secretary has not already established an apply for and receive a digital ID copyrighted works, except for limited electronic docket. certificate before a hearing request/ excerpts that serve the purpose of the Information about applying for a petition to intervene is filed so that they adjudicatory filings and would digital ID certificate is available on the can obtain access to the document via constitute a Fair Use application, NRC’s public Web site at http:// the E-Filing system. participants are requested not to include www.nrc.gov/site-help/e-submittals/ A person filing electronically using copyrighted materials in their apply-certificates.html. System the NRC’s adjudicatory E-Filing system submission. requirements for accessing the E- may seek assistance by contacting the The Commission will issue a notice or Submittal server are detailed in the NRC Meta System Help Desk through order granting or denying a hearing NRC’s ‘‘Guidance for Electronic the ‘‘Contact Us’’ link located on the request or intervention petition, Submission,’’ which is available on the NRC’s public Web site at designating the issues for any hearing NRC’s public Web site at http://www.nrc.gov/site-help/e- that will be held and designating the http://www.nrc.gov/site-help/e- submittals.html, by email to Presiding Officer. A notice granting a submittals.html. Participants may [email protected], or by a toll- attempt to use other software not listed free call to 1–866–672–7640. The NRC hearing will be published in the Federal on the Web site, but should note that the Meta System Help Desk is available Register and served on the parties to the NRC’s E-Filing system does not support between 8 a.m. and 8 p.m., Eastern hearing. unlisted software, and the NRC Meta Time, Monday through Friday, Within 30 days from the date of System Help Desk will not be able to excluding government holidays. publication of this notice, persons may offer assistance in using unlisted Participants who believe that they submit written comments regarding the software. have a good cause for not submitting license transfer application, as provided If a participant is electronically documents electronically must file an for in 10 CFR 2.1305. The Commission submitting a document to the NRC in exemption request, in accordance with will consider and, if appropriate, accordance with the E-Filing rule, the 10 CFR 2.302(g), with their initial paper respond to these comments, but such participant must file the document filing requesting authorization to comments will not otherwise constitute using the NRC’s online, Web-based continue to submit documents in paper part of the decisional record. Comments submission form. In order to serve format. Such filings must be submitted should be submitted to the Secretary, documents through the Electronic by: (1) First class mail addressed to the Information Exchange System, users Office of the Secretary of the U.S. Nuclear Regulatory Commission, will be required to install a Web Commission, U.S. Nuclear Regulatory Washington, DC 20555–0001, Attention: browser plug-in from the NRC’s public Commission, Washington, DC 20555– Rulemakings and Adjudications Staff, Web site. Further information on the 0001, Attention: Rulemaking and and should cite the publication date and Web-based submission form, including Adjudications Staff; or (2) courier, page number of this Federal Register the installation of the Web browser express mail, or expedited delivery notice. plug-in, is available on the NRC’s public service to the Office of the Secretary, For further details with respect to this Web site at Sixteenth Floor, One White Flint North, application, see the application dated http://www.nrc.gov/site-help/e- 11555 Rockville Pike, Rockville, September 27, 2012. submittals.html. Maryland 20852, Attention: Rulemaking Once a participant has obtained a and Adjudications Staff. Participants Dated at Rockville, Maryland, this 21st day digital ID certificate and a docket has filing a document in this manner are of December 2012. been created, the participant can then responsible for serving the document on For the Nuclear Regulatory Commission. submit a request for hearing or petition all other participants. Filing is Nageswaran Kalyanam, for leave to intervene. Submissions considered complete by first-class mail Project Manager, Plant Licensing Branch IV, should be in Portable Document Format as of the time of deposit in the mail, or Division of Operating Reactor Licensing, (PDF) in accordance with NRC guidance by courier, express mail, or expedited Office of Nuclear Reactor Regulation. available on the NRC’s public Web site delivery service upon depositing the [FR Doc. 2012–31616 Filed 1–2–13; 8:45 am] at http://www.nrc.gov/site-help/e- document with the provider of the BILLING CODE 7590–01–P submittals.html. A filing is considered service. A presiding officer, having complete at the time the documents are granted an exemption request from submitted through the NRC’s E-Filing using E-Filing, may require a participant system. To be timely, an electronic or party to use E-Filing if the presiding filing must be submitted to the E-Filing officer subsequently determines that the system no later than 11:59 p.m. Eastern reason for granting the exemption from Time on the due date. Upon receipt of use of E-Filing no longer exists. a transmission, the E-Filing system Documents submitted in adjudicatory time-stamps the document and sends proceedings will appear in NRC’s the submitter an email notice electronic hearing docket which is

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NUCLEAR REGULATORY the availability of information regarding Code of Federal Regulations (10 CFR) COMMISSION this document. You may access approving the direct transfer of the information related to this document, Facility Operating License, which is [Docket No. 50–382; NRC–2012–0317] which the NRC possesses and are numbered NPF–38, for the Waterford Notice of Consideration of Approval of publicly available, by any of the Steam Electric Station, Unit 3 (WF3), following methods: and associated Independent Spent Fuel Application Regarding Proposed • Creation of a Holding Company and Federal Rulemaking Web Site: Go to Storage Installation, currently held by Transfer of Facility Operating License http://www.regulations.gov and search Entergy Louisiana, LLC (ELL), as owner for Docket ID NRC–2012–0317. and Entergy Operations, Inc. (EOI), as and Opportunity for a Hearing; • Waterford Steam Electric Station, NRC’s Agencywide Documents licensed operator of WF3. The direct Unit 3 Access and Management System transfer of the WF3 license would be to (ADAMS): You may access publicly a new limited liability company also AGENCY: Nuclear Regulatory available documents online in the NRC named Entergy Louisiana, LLC (New Commission. Library at http://www.nrc.gov/reading- ELL). According to an application for ACTION: Request for license transfer; rm/adams.html. To begin the search, approval filed by EOI on behalf of ELL, opportunity to comment; opportunity to select ‘‘ADAMS Public Documents’’ and New ELL would acquire ownership of request a hearing and petition for leave then select ‘‘Begin Web-based ADAMS the facility previously owned by ELL to intervene. Search.’’ For problems with ADAMS, following approval of the proposed please contact the NRC’s Public license transfer. EOI would remain DATES: Comments must be filed by Document Room (PDR) reference staff at responsible for the operation and February 4, 2013. A request for a 1–800–397–4209, 301–415–4737, or by maintenance of WF3. hearing must be filed by January 23, email to [email protected]. The In addition, the Commission is also 2013. application dated September 27, 2012, considering approving associated ADDRESSES: You may access information is available electronically under indirect license transfers to the extent and comment submissions related to ADAMS Accession No. ML12275A013. such would be affected by a formation • this document, which the NRC NRC’s PDR: You may examine and of a new intermediary holding possesses and are publicly available, by purchase copies of public documents at company. According to an application searching on http://www.regulations.gov the NRC’s PDR, Room O1–F21, One for approval filed by EOI, on behalf of under Docket ID NRC–2012–0317. You White Flint North, 11555 Rockville ELL, Entergy Corporation will remain as may submit comments by any of the Pike, Rockville, Maryland 20852. the ultimate parent company, but a new, intermediate company, Entergy Utilities following methods: B. Submitting Comments • Federal rulemaking Web site: Go to Holdings, LLC, a Delaware limited http://www.regulations.gov and search Please include Docket ID NRC–2012– liability company, would be created, for Docket ID NRC–2012–0317. Address 0317 in the subject line of your which will be the direct parent questions about NRC dockets to Carol comment submission, in order to ensure company of New ELL and EOI. New ELL Gallagher; telephone: 301–492–3668; that the NRC is able to make your will own the facility and EOI would email: [email protected]. comment submission available to the remain responsible for the operation • Mail comments to: Cindy Bladey, public in this docket. and maintenance of WF3. Chief, Rules, Announcements, and The NRC cautions you not to include No physical changes to the WF3 Directives Branch (RADB), Office of identifying or contact information that facility or operational changes are being Administration, Mail Stop: TWB–05– you do not want to be publicly proposed in the application. Pursuant to 10 CFR 50.80, no license, B01M, U.S. Nuclear Regulatory disclosed in you comment submission. or any right thereunder, shall be Commission, Washington, DC 20555– The NRC will post all comment transferred, directly or indirectly, 0001. submissions at http:// • Fax comments to: RADB at 301– www.regulations.gov as well as enter the through transfer of control of the 492–3446. comment submissions into ADAMS. license, unless the Commission shall For additional direction on accessing The NRC does not routinely edit give its consent in writing. The information and submitting comments, comment submissions to remove Commission will approve an see ‘‘Accessing Information and identifying or contact information. application for the direct transfer of a Submitting Comments’’ in the If you are requesting or aggregating license, if the Commission determines SUPPLEMENTARY INFORMATION section of comments from other persons for that the proposed transferee is qualified this document. submission to the NRC, then you should to hold the license, and that the transfer is otherwise consistent with applicable FOR FURTHER INFORMATION CONTACT: inform those persons not to include provisions of law, regulations, and Alan Wang, Project Manager, Plant identifying or contact information that orders issued by the Commission Licensing Branch IV, Division of they do not want to be publicly pursuant thereto. The Commission will Operating Reactor Licensing, Office of disclosed in their comment submission. approve an application for the indirect Nuclear Reactor Regulation, U.S. Your request should state that the NRC transfer of a license, if the Commission Nuclear Regulatory Commission, does not routinely edit comment determines that the proposed Washington, DC 20555. Telephone: submissions to remove such information establishment of a new holding 301–415–1445; fax: 301–415–2102; before making the comment company will not affect the email: [email protected]. submissions available to the public or entering the comment submissions into qualifications of the licensee to hold the SUPPLEMENTARY INFORMATION: ADAMS. license, and that the transfer is I. Accessing Information and otherwise consistent with applicable II. Introduction Submitting Comments provisions of law, regulations, and The U.S. Nuclear Regulatory orders issued by the Commission A. Accessing Information Commission (NRC or the Commission) pursuant thereto. Please refer to Docket ID NRC–2012– is considering the issuance of an order As provided in 10 CFR 2.1315, unless 0317 when contacting the NRC about under section 50.80 of Title 10 of the otherwise determined by the

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Commission with regard to a specific body, or Federally-recognized Indian establish an electronic docket for the application, the Commission has tribe does not need to address the hearing in this proceeding if the determined that any amendment to the standing requirements in 10 CFR Secretary has not already established an license of a utilization facility which 2.309(d) if the facility is located within electronic docket. does no more than conform the license its boundaries. A State, local Information about applying for a to reflect the transfer action involves no governmental body, Federally- digital ID certificate is available on the significant hazards consideration. No recognized Indian Tribe, or agency NRC’s public Web site at http:// contrary determination has been made thereof may also have the opportunity to www.nrc.gov/site-help/e-submittals/ with respect to this specific license participate under 10 CFR 2.315(c). apply-certificates.html. System amendment application. In light of the Requests for hearing, petitions for requirements for accessing the E- generic determination reflected in 10 leave to intervene, and motions for leave Submittal server are detailed in the CFR 2.1315, no public comments with to file new or amended contentions that NRC’s ‘‘Guidance for Electronic respect to significant hazards are filed after the 20-day deadline will Submission,’’ which is available on the considerations are being solicited, not be entertained absent a NRC’s public Web site at http:// notwithstanding the general comment determination by the presiding officer www.nrc.gov/site-help/e- procedures contained in 10 CFR 50.91. that the filing demonstrates good cause submittals.html. Participants may The filing of requests for hearing and by satisfying the following three factors attempt to use other software not listed petitions for leave to intervene, and in 10 CFR 2.309(c)(1): (i) The on the Web site, but should note that the written comments with regard to the information upon which the filing is NRC’s E-Filing system does not support license transfer application, are based was not previously available; (ii) unlisted software, and the NRC Meta discussed below. the information upon which the filing is System Help Desk will not be able to based is materially different from offer assistance in using unlisted III. Opportunity To Request a Hearing; information previously available; and software. Petition for Leave To Intervene (iii) the filing has been submitted in a If a participant is electronically Within 20 days from the date of timely fashion based on the availability submitting a document to the NRC in publication of this notice, any person(s) of the subsequent information. accordance with the E-Filing rule, the whose interest may be affected by the participant must file the document Commission’s action on the application IV. Electronic Submissions (E-Filing) using the NRC’s online, Web-based may request a hearing and intervention All documents filed in NRC submission form. In order to serve via electronic submission through the adjudicatory proceedings, including a documents through the Electronic NRC’s E-filing system. Requests for a request for hearing, a petition for leave Information Exchange System, users hearing and petitions for leave to to intervene, any motion or other will be required to install a Web intervene should be filed in accordance document filed in the proceeding prior browser plug-in from the NRC’s public with the Commission’s rules of practice to the submission of a request for Web site. Further information on the set forth in Subpart C ‘‘Rules of General hearing or petition to intervene, and Web-based submission form, including Applicability: Hearing Requests, documents filed by interested the installation of the Web browser Petitions to Intervene, Availability of governmental entities participating plug-in, is available on the NRC’s public Documents, Selection of Specific under 10 CFR 2.315(c), must be filed in Web site at http://www.nrc.gov/site- Hearing Procedures, Presiding Officer accordance with the NRC’s E-Filing rule help/e-submittals.html. Powers, and General Hearing (72 FR 49139; August 28, 2007). The E- Once a participant has obtained a Management for NRC Adjudicatory Filing process requires participants to digital ID certificate and a docket has Hearings,’’ of 10 CFR Part 2. In submit and serve all adjudicatory been created, the participant can then particular, such requests and petitions documents over the internet, or in some submit a request for hearing or petition must comply with the requirements set cases to mail copies on electronic for leave to intervene. Submissions forth in 10 CFR 2.309, which is storage media. Participants may not should be in Portable Document Format available at the NRC’s PDR, located at submit paper copies of their filings (PDF) in accordance with NRC guidance O1F21, 11555 Rockville Pike (first unless they seek an exemption in available on the NRC’s public Web site floor), Rockville, Maryland 20852. The accordance with the procedures at http://www.nrc.gov/site-help/e- NRC regulations are accessible described below. submittals.html. A filing is considered electronically from the NRC Library on To comply with the procedural complete at the time the documents are the NRC’s public Web site at http:// requirements of E-Filing, at least ten submitted through the NRC’s E-Filing www.nrc.gov/reading-rm/doc- (10) days prior to the filing deadline, the system. To be timely, an electronic collections/cfr/. participant should contact the Office of filing must be submitted to the E-Filing A State, local governmental body, the Secretary by email at system no later than 11:59 p.m. Eastern Federally-recognized Indian Tribe, or [email protected], or by telephone Time on the due date. Upon receipt of agency thereof may submit a petition to at 301–415–1677, to request (1) a digital a transmission, the E-Filing system the Commission to participate as a party identification (ID) certificate, which time-stamps the document and sends under 10 CFR 2.309(h)(1) and (2). The allows the participant (or its counsel or the submitter an email notice petition should state the nature and representative) to digitally sign confirming receipt of the document. The extent of the petitioner’s interest in the documents and access the E-Submittal E-Filing system also distributes an email proceeding. The petition should be server for any proceeding in which it is notice that provides access to the submitted to the Commission by January participating; and (2) advise the document to the NRC’s Office of the 23, 2013. The petition must be filed in Secretary that the participant will be General Counsel and any others who accordance with the filing instructions submitting a request or petition for have advised the Office of the Secretary in section IV of this document, and hearing (even in instances in which the that they wish to participate in the should meet the requirements for participant, or its counsel or proceeding, so that the filer need not petitions for leave to intervene set forth representative, already holds an NRC- serve the documents on those in this section, except that under issued digital ID certificate). Based upon participants separately. Therefore, 2.309(h)(2) a State, local governmental this information, the Secretary will applicants and other participants (or

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their counsel or representative) must copyrighted works, except for limited ADDRESSES: You may access information apply for and receive a digital ID excerpts that serve the purpose of the and comment submissions related to certificate before a hearing request/ adjudicatory filings and would this document, which the NRC petition to intervene is filed so that they constitute a Fair Use application, possesses and are publicly available, by can obtain access to the document via participants are requested not to include searching on http://www.regulations.gov the E-Filing system. copyrighted materials in their under Docket ID NRC–2012–0319. You A person filing electronically using submission. may submit comments by any of the the NRC’s adjudicatory E-Filing system The Commission will issue a notice or following methods: may seek assistance by contacting the order granting or denying a hearing • Federal rulemaking Web site: Go to NRC Meta System Help Desk through request or intervention petition, http://www.regulations.gov and search the ‘‘Contact Us’’ link located on the designating the issues for any hearing for Docket ID NRC–2012–0319. Address NRC’s public Web site at http:// that will be held and designating the questions about NRC dockets to Carol www.nrc.gov/site-help/e- Presiding Officer. A notice granting a Gallagher; telephone: 301–492–3668; submittals.html, by email to hearing will be published in the Federal email: [email protected]. [email protected], or by a toll- Register and served on the parties to the • Mail comments to: Cindy Bladey, free call to 1–866–672–7640. The NRC hearing. Chief, Rules, Announcements, and Meta System Help Desk is available Within 30 days from the date of Directives Branch (RADB), Office of between 8 a.m. and 8 p.m., Eastern publication of this notice, persons may Administration, Mail Stop: TWB–05– Time, Monday through Friday, submit written comments regarding the B01M, U.S. Nuclear Regulatory excluding government holidays. license transfer application, as provided Commission, Washington, DC 20555– Participants who believe that they for in 10 CFR 2.1305. The Commission 0001. • have a good cause for not submitting will consider and, if appropriate, Fax comments to: RADB at 301– documents electronically must file an respond to these comments, but such 492–3446. exemption request, in accordance with comments will not otherwise constitute For additional direction on accessing 10 CFR 2.302(g), with their initial paper part of the decisional record. Comments information and submitting comments, filing requesting authorization to should be submitted to the Secretary, see ‘‘Accessing Information and continue to submit documents in paper U.S. Nuclear Regulatory Commission, Submitting Comments’’ in the format. Such filings must be submitted Washington, DC 20555–0001, Attention: SUPPLEMENTARY INFORMATION section of by: (1) first class mail addressed to the Rulemakings and Adjudications Staff, this document. Office of the Secretary of the and should cite the publication date and FOR FURTHER INFORMATION CONTACT: Commission, U.S. Nuclear Regulatory page number of this Federal Register Alan Wang, Project Manager, Plant Commission, Washington, DC 20555– notice. Licensing Branch IV, Division of 0001, Attention: Rulemaking and For further details with respect to this Operating Reactor Licensing, Office of Adjudications Staff; or (2) courier, application, see the application dated Nuclear Reactor Regulation, U.S. express mail, or expedited delivery September 27, 2012. Nuclear Regulatory Commission, service to the Office of the Secretary, Washington, DC 20555. Telephone: Sixteenth Floor, One White Flint North, Dated at Rockville, Maryland, this 21st day of December 2012. 301–415–1445; fax number: 301–415– 11555 Rockville Pike, Rockville, 2102; email: [email protected]. Maryland 20852, Attention: Rulemaking For the Nuclear Regulatory Commission. SUPPLEMENTARY INFORMATION: and Adjudications Staff. Participants Nageswaran Kalyanam, filing a document in this manner are Project Manager, Plant Licensing Branch IV, I. Accessing Information and responsible for serving the document on Division of Operating Reactor Licensing, Submitting Comments all other participants. Filing is Office of Nuclear Reactor Regulation. A. Accessing Information considered complete by first-class mail [FR Doc. 2012–31617 Filed 1–2–13; 8:45 am] as of the time of deposit in the mail, or BILLING CODE 7590–01–P Please refer to Docket ID NRC–2012– by courier, express mail, or expedited 0319 when contacting the NRC about delivery service upon depositing the the availability of information regarding document with the provider of the NUCLEAR REGULATORY this document. You may access service. A presiding officer, having COMMISSION information related to this document, granted an exemption request from which the NRC possesses and are using E-Filing, may require a participant [Docket Nos. 50–416; NRC–2012–0319] publicly available, by any of the or party to use E-Filing if the presiding following methods: officer subsequently determines that the Consideration of Approval of • Federal Rulemaking Web Site: Go to reason for granting the exemption from Application Regarding Proposed http://www.regulations.gov and search use of E-Filing no longer exists. Creation of a Holding Company and for Docket ID NRC–2012–0319. Documents submitted in adjudicatory Transfer of Facility Operating License • NRC’s Agencywide Documents proceedings will appear in NRC’s and Conforming Amendment and Access and Management System electronic hearing docket which is Opportunity for a Hearing; Grand Gulf (ADAMS): You may access publicly available to the public at http:// Nuclear Station, Unit 1 available documents online in the NRC ehd1.nrc.gov/ehd/, unless excluded Library at http://www.nrc.gov/reading- pursuant to an order of the Commission, ACTION: Request for license transfer; rm/adams.html. To begin the search, or the presiding officer. Participants are opportunity to comment; opportunity to select ‘‘ADAMS Public Documents’’ and requested not to include personal request a hearing and petition for leave then select ‘‘Begin Web-based ADAMS privacy information, such as social to intervene. Search.’’ For problems with ADAMS, security numbers, home addresses, or please contact the NRC’s Public home phone numbers in their filings, DATES: Comments must be filed by Document Room (PDR) reference staff at unless an NRC regulation or other law February 4, 2013. A request for a 1–800–397–4209, 301–415–4737, or by requires submission of such hearing must be filed by January 23, email to [email protected]. The information. With respect to 2013. application dated September 27, 2012,

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is available electronically under for administrative purposes to reflect application, the Commission has ADAMS Accession No. ML12275A013. the proposed direct transfer. The determined that any amendment to the • NRC’s PDR: You may examine and proposed amendment would replace license of a utilization facility which purchase copies of public documents at references to SERI in the license with does no more than conform the license the NRC’s PDR, Room O1–F21, One references to System Energy Resource, to reflect the transfer action involves no White Flint North, 11555 Rockville LLC, to reflect the proposed transfer. In significant hazards consideration. No Pike, Rockville, Maryland 20852. addition, the proposed amendment contrary determination has been made B. Submitting Comments would replace references to Entergy with respect to this specific license Mississippi, Inc., in the license with amendment application. In light of the Please include Docket ID NRC–2012– Entergy Mississippi, LLC. Entergy generic determination reflected in 10 0319 in the subject line of your Mississippi, Inc., is referenced in the CFR 2.1315, no public comments with comment submission, in order to ensure license, however, is not a licensee respect to significant hazards that the NRC is able to make your entity. considerations are being solicited, comment submission available to the In addition, the Commission is also notwithstanding the general comment public in this docket. considering approving the associated procedures contained in 10 CFR 50.91. The NRC cautions you not to include indirect license transfer to the extent The filing of requests for hearing and identifying or contact information that such would be affected by a formation petitions for leave to intervene, and you do not want to be publicly of a new intermediary holding written comments with regard to the disclosed in your comment submission. company. According to an application license transfer application, are The NRC will post all comment for approval filed by EOI, on behalf of discussed below. submissions at http:// SERI, Entergy Corporation will remain III. Opportunity To Request a Hearing; www.regulations.gov as well as enter the as the ultimate parent company, but a Petition for Leave To Intervene comment submissions into ADAMS. new, intermediate company, Entergy The NRC does not routinely edit Utilities Holdings, LLC, a Delaware Within 20 days from the date of comment submissions to remove limited liability company, will be publication of this notice, any person(s) identifying or contact information. created, which will be the direct parent whose interest may be affected by the If you are requesting or aggregating company of SERL and EOI. SERL and Commission’s action on the application comments from other persons for South Mississippi Electric Power may request a hearing and intervention submission to the NRC, then you should Association will own the facility and via electronic submission through the inform those persons not to include EOI will remain responsible for the NRC’s E-filing system. Requests for a identifying or contact information that operation and maintenance of GGNS. hearing and petitions for leave to they do not want to be publicly No physical changes to the GGNS intervene should be filed in accordance disclosed in their comment submission. facility or operational changes are being with the Commission’s rules of practice Your request should state that the NRC proposed in the application. set forth in Subpart C ‘‘Rules of General does not routinely edit comment Pursuant to 10 CFR 50.80, no license, Applicability: Hearing Requests, submissions to remove such information or any right thereunder, shall be Petitions to Intervene, Availability of before making the comment transferred, directly or indirectly, Documents, Selection of Specific submissions available to the public or through transfer of control of the Hearing Procedures, Presiding Officer entering the comment submissions into license, unless the Commission shall Powers, and General Hearing ADAMS. give its consent in writing. The Management for NRC Adjudicatory Commission will approve an Hearings,’’ of 10 CFR Part 2. In II. Introduction application for the direct transfer of a particular, such requests and petitions The U.S. Nuclear Regulatory license, if the Commission determines must comply with the requirements set Commission (the Commission) is that the proposed transferee is qualified forth in 10 CFR 2.309, which is considering the issuance of an order to hold the license, and that the transfer available at the NRC’s PDR, located at under section 50.80 Title 10 of the Code is otherwise consistent with applicable O1F21, 11555 Rockville Pike (first of Federal Regulations (10 CFR) provisions of law, regulations, and floor), Rockville, Maryland 20852. The approving the direct transfer of the orders issued by the Commission NRC regulations are accessible Facility Operating License, NPF–29, for pursuant thereto. The Commission will electronically from the NRC Library on the Grand Gulf Nuclear Station, Unit 1 approve an application for the indirect the NRC’s public Web site at http:// (GGNS), and associated Independent transfer of a license, if the Commission www.nrc.gov/reading-rm/doc- Spent Fuel Storage Installation, determines that the proposed collections/cfr/. currently held by System Energy establishment of a new holding A State, local governmental body, Resources, Inc. (SERI), and South company will not affect the Federally-recognized Indian Tribe, or Mississippi Electric Power Association, qualifications of the licensee to hold the agency thereof may submit a petition to as owners and Entergy Operations, Inc. license, and that the transfer is the Commission to participate as a party (EOI), as licensed operator of GGNS. otherwise consistent with applicable under 10 CFR 2.309(h)(1) and (2). The The direct transfer of the GGNS license provisions of law, regulations, and petition should state the nature and would be to a new limited liability orders issued by the Commission extent of the petitioner’s interest in the company, System Energy Resource, LLC pursuant thereto. proceeding. The petition should be (SERL). According to an application for Before issuance of the proposed submitted to the Commission by January approval filed by EOI on behalf of SERI, conforming license amendment, the 23, 2013. The petition must be filed in SERL would acquire ownership of the Commission will have made findings accordance with the filing instructions facility previously owned by SERI required by the Atomic Energy Act of in section IV of this document, and following approval of the proposed 1954, as amended (the Act), and the should meet the requirements for license transfer. EOI would remain Commission’s regulations. petitions for leave to intervene set forth responsible for the operation and As provided in 10 CFR 2.1315, unless in this section, except that under maintenance of GGNS. The Commission otherwise determined by the 2.309(h)(2) a State, local governmental is also considering amending the license Commission with regard to a specific body, or Federally-recognized Indian

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tribe does not need to address the hearing in this proceeding if the apply for and receive a digital ID standing requirements in 10 CFR Secretary has not already established an certificate before a hearing request/ 2.309(d) if the facility is located within electronic docket. petition to intervene is filed so that they its boundaries. A State, local Information about applying for a can obtain access to the document via governmental body, Federally- digital ID certificate is available on the the E-Filing system. recognized Indian Tribe, or agency NRC’s public Web site at http:// A person filing electronically using thereof may also have the opportunity to www.nrc.gov/site-help/e-submittals/ the NRC’s adjudicatory E-Filing system participate under 10 CFR 2.315(c). apply-certificates.html. System may seek assistance by contacting the Requests for hearing, petitions for requirements for accessing the E- NRC Meta System Help Desk through leave to intervene, and motions for leave Submittal server are detailed in the the ‘‘Contact Us’’ link located on the to file new or amended contentions that NRC’s ‘‘Guidance for Electronic NRC’s public Web site at http:// are filed after the 20-day deadline will Submission,’’ which is available on the www.nrc.gov/site-help/e- not be entertained absent a NRC’s public Web site at http:// submittals.html, by email to determination by the presiding officer www.nrc.gov/site-help/e- [email protected], or by a toll- that the filing demonstrates good cause submittals.html. Participants may free call to 1–866–672–7640. The NRC by satisfying the following three factors attempt to use other software not listed Meta System Help Desk is available in 10 CFR 2.309(c)(1): (i) The on the Web site, but should note that the between 8 a.m. and 8 p.m., Eastern information upon which the filing is NRC’s E-Filing system does not support Time, Monday through Friday, based was not previously available; (ii) unlisted software, and the NRC Meta excluding government holidays. the information upon which the filing is System Help Desk will not be able to Participants who believe that they based is materially different from offer assistance in using unlisted have a good cause for not submitting information previously available; and software. documents electronically must file an (iii) the filing has been submitted in a If a participant is electronically exemption request, in accordance with timely fashion based on the availability submitting a document to the NRC in 10 CFR 2.302(g), with their initial paper of the subsequent information. accordance with the E-Filing rule, the filing requesting authorization to participant must file the document continue to submit documents in paper IV. Electronic Submissions (E-Filing) using the NRC’s online, Web-based format. Such filings must be submitted All documents filed in NRC submission form. In order to serve by: (1) First class mail addressed to the adjudicatory proceedings, including a documents through the Electronic Office of the Secretary of the request for hearing, a petition for leave Information Exchange System, users Commission, U.S. Nuclear Regulatory to intervene, any motion or other will be required to install a Web Commission, Washington, DC 20555– document filed in the proceeding prior browser plug-in from the NRC’s public 0001, Attention: Rulemaking and to the submission of a request for Web site. Further information on the Adjudications Staff; or (2) courier, hearing or petition to intervene, and Web-based submission form, including express mail, or expedited delivery documents filed by interested the installation of the Web browser service to the Office of the Secretary, governmental entities participating plug-in, is available on the NRC’s public Sixteenth Floor, One White Flint North, under 10 CFR 2.315(c), must be filed in Web site at http://www.nrc.gov/site- 11555 Rockville Pike, Rockville, accordance with the NRC’s E-Filing rule help/e-submittals.html. Maryland 20852, Attention: Rulemaking (72 FR 49139; August 28, 2007). The E- Once a participant has obtained a and Adjudications Staff. Participants Filing process requires participants to digital ID certificate and a docket has filing a document in this manner are submit and serve all adjudicatory been created, the participant can then responsible for serving the document on documents over the Internet, or in some submit a request for hearing or petition all other participants. Filing is cases to mail copies on electronic for leave to intervene. Submissions considered complete by first-class mail storage media. Participants may not should be in Portable Document Format as of the time of deposit in the mail, or submit paper copies of their filings (PDF) in accordance with NRC guidance by courier, express mail, or expedited unless they seek an exemption in available on the NRC’s public Web site delivery service upon depositing the accordance with the procedures at http://www.nrc.gov/site-help/e- document with the provider of the described below. submittals.html. A filing is considered service. A presiding officer, having To comply with the procedural complete at the time the documents are granted an exemption request from requirements of E-Filing, at least 10 submitted through the NRC’s E-Filing using E-Filing, may require a participant days prior to the filing deadline, the system. To be timely, an electronic or party to use E-Filing if the presiding participant should contact the Office of filing must be submitted to the E-Filing officer subsequently determines that the the Secretary by email at system no later than 11:59 p.m. Eastern reason for granting the exemption from [email protected], or by telephone Time on the due date. Upon receipt of use of E-Filing no longer exists. at 301–415–1677, to request (1) a digital a transmission, the E-Filing system Documents submitted in adjudicatory identification (ID) certificate, which time-stamps the document and sends proceedings will appear in NRC’s allows the participant (or its counsel or the submitter an email notice electronic hearing docket which is representative) to digitally sign confirming receipt of the document. The available to the public at http:// documents and access the E-Submittal E-Filing system also distributes an email ehd1.nrc.gov/ehd/, unless excluded server for any proceeding in which it is notice that provides access to the pursuant to an order of the Commission, participating; and (2) advise the document to the NRC’s Office of the or the presiding officer. Participants are Secretary that the participant will be General Counsel and any others who requested not to include personal submitting a request or petition for have advised the Office of the Secretary privacy information, such as social hearing (even in instances in which the that they wish to participate in the security numbers, home addresses, or participant, or its counsel or proceeding, so that the filer need not home phone numbers in their filings, representative, already holds an NRC- serve the documents on those unless an NRC regulation or other law issued digital ID certificate). Based upon participants separately. Therefore, requires submission of such this information, the Secretary will applicants and other participants (or information. With respect to establish an electronic docket for the their counsel or representative) must copyrighted works, except for limited

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excerpts that serve the purpose of the hearing must be filed by January 23, Document Room (PDR) reference staff at adjudicatory filings and would 2013. 1–800–397–4209, 301–415–4737, or by email to [email protected]. The constitute a Fair Use application, ADDRESSES: You many access participants are requested not to include information and comment submissions application dated September 27, 2012, copyrighted materials in their related to this document, which the is available electronically under ADAMS Accession No. ML12275A013. submission. NRC possesses and are publicly • NRC’s PDR: You may examine and The Commission will issue a notice or available, by searching on http:// order granting or denying a hearing purchase copies of public documents at www.regulations.gov under Docket ID the NRC’s PDR, Room O1–F21, One request or intervention petition, NRC–2012–0320. You may submit designating the issues for any hearing White Flint North, 11555 Rockville comments by any of the following Pike, Rockville, Maryland 20852. that will be held and designating the methods: Presiding Officer. A notice granting a • Federal rulemaking Web site: Go to B. Submitting Comments hearing will be published in the Federal http://www.regulations.gov and search Please include Docket ID NRC–2012– Register and served on the parties to the for Docket ID NRC–2012–0320. Address hearing. 0320 in the subject line of your questions about NRC dockets to Carol comment submission, in order to ensure Within 30 days from the date of Gallagher; telephone: 301–492–3668; publication of this notice, persons may that the NRC is able to make your email: [email protected]. comment submission available to the submit written comments regarding the • Mail comments to: Cindy Bladey, license transfer application, as provided public in this docket. Chief, Rules, Announcements, and The NRC cautions you not to include for in 10 CFR 2.1305. The Commission Directives Branch (RADB), Office of identifying or contact information that will consider and, if appropriate, Administration, Mail Stop: TWB–05– you do not want to be publicly respond to these comments, but such B01M, U.S. Nuclear Regulatory disclosed in you comment submission. comments will not otherwise constitute Commission, Washington, DC 20555– The NRC will post all comment part of the decisional record. Comments 0001. submissions at http:// should be submitted to the Secretary, • Fax comments to: RADB at 301– www.regulations.gov as well as enter the U.S. Nuclear Regulatory Commission, 492–3446. comment submissions into ADAMS. Washington, DC 20555–0001, Attention: For additional direction on accessing The NRC does not routinely edit Rulemakings and Adjudications Staff, information and submitting comments, comment submissions to remove and should cite the publication date and see ‘‘Accessing Information and identifying or contact information. page number of this Federal Register Submitting Comments’’ in the If you are requesting or aggregating notice. SUPPLEMENTARY INFORMATION section of comments from other persons for For further details with respect to this this document. submission to the NRC, then you should application, see the application dated inform those persons not to include September 27, 2012. FOR FURTHER INFORMATION CONTACT: Alan Wang, Project Manager, Plant identifying or contact information that Dated at Rockville, Maryland, this 21st day Licensing Branch IV, Division of they do not want to be publicly of December 2012. Operating Reactor Licensing, Office of disclosed in their comment submission. For the Nuclear Regulatory Commission. Nuclear Reactor Regulation, U.S. Your request should state that the NRC Nageswaran Kalyanam, Nuclear Regulatory Commission, does not routinely edit comment Project Manager, Plant Licensing Branch IV, Washington, DC 20555. Telephone: submissions to remove such information Division of Operating Reactor Licensing, 301–415–1445; fax number: 301–415– before making the comment Office of Nuclear Reactor Regulation. 2102; email: [email protected]. submissions available to the public or [FR Doc. 2012–31615 Filed 1–2–13; 8:45 am] SUPPLEMENTARY INFORMATION: entering the comment submissions into BILLING CODE 7590–01–P ADAMS. I. Accessing Information and Submitting Comments II. Introduction NUCLEAR REGULATORY The U.S. Nuclear Regulatory A. Accessing Information COMMISSION Commission (the Commission) is Please refer to Docket ID NRC–2012– considering the issuance of an order [Docket Nos. 50–313 and 50–368; NRC– 0320 when contacting the NRC about under section 50.80 of Title 10 of the 2012–0320] the availability of information regarding Code of Federal Regulations (10 CFR) Consideration of Approval of this document. You may access approving the direct transfer of the Application Regarding Proposed information related to this document, Renewed Facility Operating Licenses, Creation of a Holding Company and which the NRC possesses and are which are numbered DPR–51 and NPF– Transfer of Renewed Facility Operating publicly available, by any of the 6, for the Arkansas Nuclear One, Units Licenses and Conforming following methods: 1 and 2 (ANO–1, ANO–2), and • Amendments and Opportunity for a Federal Rulemaking Web Site: Go to associated Independent Spent Fuel Hearing; Arkansas Nuclear One, Units http://www.regulations.gov and search Storage Installation, currently held by 1 and 2 for Docket ID NRC–2012–0320. Entergy Arkansas, Inc. (EAI), as owner • NRC’s Agencywide Documents and Entergy Operations, Inc. (EOI), as AGENCY: Nuclear Regulatory Access and Management System licensed operator of ANO–1 and ANO– Commission. (ADAMS): You may access publicly 2. The direct transfer of the ANO–1 and ACTION: Request for license transfer; available documents online in the NRC ANO–2 licenses would be to a new opportunity to comment; opportunity to Library at http://www.nrc.gov/reading- limited liability company, Entergy request a hearing and petition for leave rm/adams.html. To begin the search, Arkansas, LLC (EAL). According to an to intervene. select ‘‘ADAMS Public Documents’’ and application for approval filed by EOI on then select ‘‘Begin Web-based ADAMS behalf of EAI, EAL would acquire DATES: Comments must be filed by Search.’’ For problems with ADAMS, ownership of the facility following February 4, 2013. A request for a please contact the NRC’s Public approval of the proposed license

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transfer. EOI would remain responsible does no more than conform the license its boundaries. A State, local for the operation and maintenance of to reflect the transfer action involves no governmental body, Federally- ANO–1 and ANO–2. The Commission is significant hazards consideration. No recognized Indian Tribe, or agency also considering amending the license contrary determination has been made thereof may also have the opportunity to for administrative purposes to reflect with respect to this specific license participate under 10 CFR 2.315(c). the proposed direct transfer. The amendment application. In light of the Requests for hearing, petitions for proposed amendment would replace generic determination reflected in 10 leave to intervene, and motions for leave references to EAI in the license with CFR 2.1315, no public comments with to file new or amended contentions that references to Entergy Arkansas, LLC, to respect to significant hazards are filed after the 20-day deadline will reflect the proposed transfer. considerations are being solicited, not be entertained absent a In addition, the Commission is also notwithstanding the general comment determination by the presiding officer considering approving associated procedures contained in 10 CFR 50.91. that the filing demonstrates good cause indirect license transfers to the extent The filing of requests for hearing and by satisfying the following three factors such would be affected by a formation petitions for leave to intervene, and in 10 CFR 2.309(c)(1): (i) The of a new intermediary holding written comments with regard to the information upon which the filing is company. According to an application license transfer application, are based was not previously available; (ii) for approval filed by EOI, on behalf of discussed below. the information upon which the filing is EAI, Entergy Corporation will remain as based is materially different from III. Opportunity To Request a Hearing; the ultimate parent company, but a new, information previously available; and Petition for Leave To Intervene intermediate company, Entergy Utilities (iii) the filing has been submitted in a Holdings, LLC, a Delaware limited Within 20 days from the date of timely fashion based on the availability liability company, will be created, publication of this notice, any person(s) of the subsequent information. which will be the direct parent whose interest may be affected by the IV. Electronic Submissions (E-Filing) company of EAL and EOI. EAL will own Commission’s action on the application the facility and EOI would remain may request a hearing and intervention All documents filed in NRC responsible for the operation and via electronic submission through the adjudicatory proceedings, including a maintenance of ANO–1 and ANO–2. NRC’s E-filing system. Requests for a request for hearing, a petition for leave No physical changes to the ANO–1 hearing and petitions for leave to to intervene, any motion or other and ANO–2 facility or operational intervene should be filed in accordance document filed in the proceeding prior changes are being proposed in the with the Commission’s rules of practice to the submission of a request for application. set forth in Subpart C ‘‘Rules of General hearing or petition to intervene, and Pursuant to 10 CFR 50.80, no license, Applicability: Hearing Requests, documents filed by interested or any right thereunder, shall be Petitions to Intervene, Availability of governmental entities participating transferred, directly or indirectly, Documents, Selection of Specific under 10 CFR 2.315(c), must be filed in through transfer of control of the Hearing Procedures, Presiding Officer accordance with the NRC’s E-Filing rule license, unless the Commission shall Powers, and General Hearing (72 FR 49139; August 28, 2007). The E- give its consent in writing. The Management for NRC Adjudicatory Filing process requires participants to Commission will approve an Hearings,’’ of 10 CFR part 2. In submit and serve all adjudicatory application for the direct transfer of a particular, such requests and petitions documents over the internet, or in some license, if the Commission determines must comply with the requirements set cases to mail copies on electronic that the proposed transferee is qualified forth in 10 CFR 2.309, which is storage media. Participants may not to hold the license, and that the transfer available at the NRC’s PDR, located at submit paper copies of their filings is otherwise consistent with applicable O1F21, 11555 Rockville Pike (first unless they seek an exemption in provisions of law, regulations, and floor), Rockville, Maryland 20852. The accordance with the procedures orders issued by the Commission NRC regulations are accessible described below. pursuant thereto. The Commission will electronically from the NRC Library on To comply with the procedural approve an application for the indirect the NRC’s public Web site at http:// requirements of E-Filing, at least 10 transfer of a license, if the Commission www.nrc.gov/reading-rm/doc- days prior to the filing deadline, the determines that the proposed collections/cfr/. participant should contact the Office of establishment of a new holding A State, local governmental body, the Secretary by email at company will not affect the Federally-recognized Indian Tribe, or [email protected], or by telephone qualifications of the licensee to hold the agency thereof may submit a petition to at 301–415–1677, to request (1) a digital license, and that the transfer is the Commission to participate as a party identification (ID) certificate, which otherwise consistent with applicable under 10 CFR 2.309(h)(1) and (2). The allows the participant (or its counsel or provisions of law, regulations, and petition should state the nature and representative) to digitally sign orders issued by the Commission extent of the petitioner’s interest in the documents and access the E-Submittal pursuant thereto. proceeding. The petition should be server for any proceeding in which it is Before issuance of the proposed submitted to the Commission by January participating; and (2) advise the conforming license amendment, the 23, 2013. The petition must be filed in Secretary that the participant will be Commission will have made findings accordance with the filing instructions submitting a request or petition for required by the Atomic Energy Act of in section IV of this document, and hearing (even in instances in which the 1954, as amended (the Act), and the should meet the requirements for participant, or its counsel or Commission’s regulations. petitions for leave to intervene set forth representative, already holds an NRC- As provided in 10 CFR 2.1315, unless in this section, except that under issued digital ID certificate). Based upon otherwise determined by the 2.309(h)(2) a State, local governmental this information, the Secretary will Commission with regard to a specific body, or Federally-recognized Indian establish an electronic docket for the application, the Commission has tribe does not need to address the hearing in this proceeding if the determined that any amendment to the standing requirements in 10 CFR Secretary has not already established an license of a utilization facility which 2.309(d) if the facility is located within electronic docket.

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Information about applying for a can obtain access to the document via participants are requested not to include digital ID certificate is available on the the E-Filing system. copyrighted materials in their NRC’s public Web site at http:// A person filing electronically using submission. www.nrc.gov/site-help/e-submittals/ the NRC’s adjudicatory E-Filing system The Commission will issue a notice or apply-certificates.html. System may seek assistance by contacting the order granting or denying a hearing requirements for accessing the E- NRC Meta System Help Desk through request or intervention petition, Submittal server are detailed in the the ‘‘Contact Us’’ link located on the designating the issues for any hearing NRC’s ‘‘Guidance for Electronic NRC’s public Web site at http:// that will be held and designating the Submission,’’ which is available on the www.nrc.gov/site-help/e- Presiding Officer. A notice granting a NRC’s public Web site at http:// submittals.html, by email to hearing will be published in the Federal www.nrc.gov/site-help/e- [email protected], or by a toll- Register and served on the parties to the submittals.html. Participants may free call to 1–866–672–7640. The NRC hearing. attempt to use other software not listed Meta System Help Desk is available Within 30 days from the date of on the Web site, but should note that the between 8 a.m. and 8 p.m., Eastern publication of this notice, persons may NRC’s E-Filing system does not support Time, Monday through Friday, submit written comments regarding the unlisted software, and the NRC Meta excluding government holidays. license transfer application, as provided System Help Desk will not be able to Participants who believe that they for in 10 CFR 2.1305. The Commission offer assistance in using unlisted have a good cause for not submitting will consider and, if appropriate, software. documents electronically must file an respond to these comments, but such If a participant is electronically exemption request, in accordance with comments will not otherwise constitute submitting a document to the NRC in 10 CFR 2.302(g), with their initial paper part of the decisional record. Comments accordance with the E-Filing rule, the filing requesting authorization to should be submitted to the Secretary, participant must file the document continue to submit documents in paper U.S. Nuclear Regulatory Commission, using the NRC’s online, Web-based format. Such filings must be submitted Washington, DC 20555–0001, Attention: submission form. In order to serve by: (1) first class mail addressed to the Rulemakings and Adjudications Staff, documents through the Electronic Office of the Secretary of the and should cite the publication date and Information Exchange System, users Commission, U.S. Nuclear Regulatory page number of this Federal Register will be required to install a Web Commission, Washington, DC 20555– notice. browser plug-in from the NRC’s public 0001, Attention: Rulemaking and For further details with respect to this Web site. Further information on the Adjudications Staff; or (2) courier, application, see the application dated Web-based submission form, including express mail, or expedited delivery September 27, 2012. the installation of the Web browser service to the Office of the Secretary, plug-in, is available on the NRC’s public Sixteenth Floor, One White Flint North, Dated at Rockville, Maryland, this 21st day Web site at http://www.nrc.gov/site- 11555 Rockville Pike, Rockville, of December 2012. help/e-submittals.html. Maryland 20852, Attention: Rulemaking For the Nuclear Regulatory Commission. Once a participant has obtained a and Adjudications Staff. Participants Nageswaran Kalyanam, digital ID certificate and a docket has filing a document in this manner are Project Manager, Plant Licensing Branch IV, been created, the participant can then responsible for serving the document on Division of Operating Reactor Licensing, submit a request for hearing or petition all other participants. Filing is Office of Nuclear Reactor Regulation. for leave to intervene. Submissions considered complete by first-class mail [FR Doc. 2012–31614 Filed 1–2–13; 8:45 am] should be in Portable Document Format as of the time of deposit in the mail, or BILLING CODE 7590–01–P (PDF) in accordance with NRC guidance by courier, express mail, or expedited available on the NRC’s public Web site delivery service upon depositing the at http://www.nrc.gov/site-help/e- document with the provider of the SECURITIES AND EXCHANGE submittals.html. A filing is considered service. A presiding officer, having COMMISSION complete at the time the documents are granted an exemption request from submitted through the NRC’s E-Filing using E-Filing, may require a participant [Release No. 34–68540; File No. SR–ICEEU– 2012–18] system. To be timely, an electronic or party to use E-Filing if the presiding filing must be submitted to the E-Filing officer subsequently determines that the Self-Regulatory Organizations; ICE system no later than 11:59 p.m. Eastern reason for granting the exemption from Clear Europe Limited; Notice of Filing Time on the due date. Upon receipt of use of E-Filing no longer exists. and Immediate Effectiveness of a transmission, the E-Filing system Documents submitted in adjudicatory Proposed Rule Change To Amend time-stamps the document and sends proceedings will appear in NRC’s SPAN Margin Parameters for ICE OTC the submitter an email notice electronic hearing docket which is Natural Gas Liquids Contracts confirming receipt of the document. The available to the public at http:// E-Filing system also distributes an email ehd1.nrc.gov/ehd/, unless excluded December 27, 2012. notice that provides access to the pursuant to an order of the Commission, Pursuant to Section 19(b)(1) of the document to the NRC’s Office of the or the presiding officer. Participants are Securities Exchange Act of 1934 General Counsel and any others who requested not to include personal (‘‘Act’’),1 and Rule 19b-4 thereunder,2 have advised the Office of the Secretary privacy information, such as social notice is hereby given that on December that they wish to participate in the security numbers, home addresses, or 19, 2012, ICE Clear Europe Limited proceeding, so that the filer need not home phone numbers in their filings, (‘‘ICE Clear Europe’’) filed with the serve the documents on those unless an NRC regulation or other law Securities and Exchange Commission participants separately. Therefore, requires submission of such (‘‘Commission’’) the proposed rule applicants and other participants (or information. With respect to change as described in Items I, II and III their counsel or representative) must copyrighted works, except for limited below, which Items have been prepared apply for and receive a digital ID excerpts that serve the purpose of the certificate before a hearing request/ adjudicatory filings and would 1 15 U.S.C. 78s(b)(1). petition to intervene is filed so that they constitute a Fair Use application, 2 17 CFR 240.19b–4.

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primarily by ICE Clear Europe. ICE Clear promote the prompt and accurate Electronic Comments Europe filed the proposal pursuant to clearance and settlement of securities • Section 19(b)(3)(A)(iii) of the Act,3 and transactions and, to the extent Use the Commission’s Internet Rule 19b-4(f)(4)(ii) thereunder,4 so that applicable, derivative agreements, comment form (http://www.sec.gov/ the proposal was effective upon filing contracts, and transactions. ICE Clear rules/sro.shtml) or with the Commission. The Commission Europe believes that the proposed • Send an email to rule- is publishing this notice to solicit change with respect to Energy Futures [email protected]. Please include File comments on the proposed change from Products is consistent with the Number SR–ICEEU–2012–18 on the interested persons. requirements of the Act and the rules subject line. and regulations thereunder applicable to I. Self-Regulatory Organization’s ICE Clear Europe, in particular, with Paper Comments Statement of the Terms of Substance of Section 17A(b)(3)(F),8 because improved the Proposed Rule Change • margining of NGL contracts protects Send paper comments in triplicate The purpose of the change is to investors and the public interest. to Elizabeth M. Murphy, Secretary, amend SPAN Margin Parameters for ICE Securities and Exchange Commission, OTC Natural Gas Liquids (NGL) B. Self-Regulatory Organization’s 100 F Street NE., Washington, DC Contracts. All capitalized terms not Statement on Burden on Competition 20549–1090. defined herein are defined in the ICE ICE Clear Europe does not believe the Clear Europe Rules. proposed change would have any All submissions should refer to File impact, or impose any burden, on Number SR–ICEEU–2012–18. This file II. Self-Regulatory Organization’s competition. number should be included on the Statement of the Purpose of, and subject line if email is used. To help the Statutory Basis for, the Proposed Rule C. Self-Regulatory Organization’s Commission process and review your Change Statement on Comments on the comments more efficiently, please use In its filing with the Commission, ICE Proposed Rule Change Received From Members, Participants or Others only one method. The Commission will Clear Europe included statements post all comments on the Commission’s concerning the purpose of and basis for Written comments relating to the Internet Web site (http://www.sec.gov/ the proposed rule change and discussed proposed change have not been solicited rules/sro.shtml). Copies of the any comments it received on the or received. ICE Clear Europe will notify submission, all subsequent proposed rule change. The text of these the Commission of any written amendments, all written statements statements may be examined at the comments received by ICE Clear Europe. places specified in Item IV below. ICE with respect to the proposed rule III. Date of Effectiveness of the Clear Europe has prepared summaries, change that are filed with the Proposed Rule Change and Timing for set forth in sections A, B, and C below, Commission, and all written Commission Action of the most significant aspects of these communications relating to the statements.5 The foregoing rule change has become proposed rule change between the effective upon filing pursuant to Section Commission and any person, other than A. Self-Regulatory Organization’s 19(b)(3)(A)(iii) of the Act 9 and Rule those that may be withheld from the Statement of the Purpose of, and 19b–4(f)(4)(ii) 10 thereunder because it public in accordance with the Statutory Basis for, the Proposed Rule primarily affects the futures clearing provisions of 5 U.S.C. 552, will be Change operations of the clearing agency with available for Web site viewing and In addition to providing clearing respect to futures that are not security printing in the Commission’s Public services for credit default swaps, ICE futures, and does not significantly affect Reference Room, 100 F Street NE., Clear Europe also provides clearing any securities clearing operations of the Washington, DC 20549, on official services for non-securities contracts in clearing agency or any related rights or business days between the hours of energy and emissions markets (‘‘Energy obligations of the clearing agency or 10:00 a.m. and 3:00 p.m. Copies of such Futures Products’’). SPAN® 6 is a risk persons using such service. At any time filings will also be available for evaluation and margin framework within 60 days of the filing of the inspection and copying at the principal algorithm employed to calculate proposed rule change, the Commission Original Margin for certain Energy summarily may temporarily suspend office of ICE Clear Europe and on ICE Futures Products. As of September 20, such rule change if it appears to the Clear Europe’s Web site at https:// 2011, ICE Clear Europe changed the Commission that such action is www.theice.com/publicdocs/ _ SPAN margin parameters for ICE OTC necessary or appropriate in the public regulatory filings/ NGL Contracts. All updated SPAN® interest, for the protection of investors, ICEU_SEC_121912_2012–18.pdf. margin parameters can be found at: or otherwise in furtherance of the All comments received will be posted https://www.theice.com/ purposes of the Act.11 without change; the Commission does clear_europe_span_parameters.jhtml. not edit personal identifying 7 IV. Solicitation of Comments Section 17A(b)(3)(F) of the Act information from submissions. You Interested persons are invited to requires, among other things, that the should submit only information that rules of a clearing agency be designed to submit written data, views, and arguments concerning the foregoing, you wish to make available publicly. All submissions should refer to File 3 15 U.S.C. 78s(b)(3)(A)(iii). including whether the proposed rule 4 17 CFR 240.19b–4(f)(4)(ii). change is consistent with the Act. Number SR–ICEEU–2012–18 and 5 The Commission has modified the text of the Comments may be submitted by any of should be submitted on or before summaries prepared by ICE Clear Europe. the following methods: January 24, 2013. 6 SPAN is a registered trademark of Chicago Mercantile Exchange Inc., used herein under license. Chicago Mercantile Exchange Inc. assumes 8 15 U.S.C. 78q–1(b)(3)(F). no responsibility in connection with the use of 9 15 U.S.C. 78s(b)(3)(A)(iii). SPAN by any person or entity. 10 17 CFR 240.19b–4(f)(4)(ii). 7 15 U.S.C. 78q–1(b)(3)(F). 11 15 U.S.C. 78s(b)(3)(C).

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For the Commission, by the Division of any comments it received on the following SPAN Combined Contract Trading and Markets, pursuant to delegated proposed rule change. The text of these pairings: authority.12 statements may be examined at the • BRN/BSP, Brent Futures/Brent Elizabeth M. Murphy, places specified in Item IV below. ICE Option vs. Brent First Line Swap/Brent Secretary. Clear Europe has prepared summaries, Average Price Option. [FR Doc. 2012–31568 Filed 1–2–13; 8:45 am] set forth in sections A, B, and C below, • GAS/GSP, Gas Oil Futures/Gas Oil BILLING CODE 8011–01–P of the most significant aspects of these Option vs. Gas Oil Front Line Swap/Gas statements.5 Oil Average Price Option. • ULS/ULA, Low-Sulphur Gas Oil A. Self-Regulatory Organization’s SECURITIES AND EXCHANGE Futures/Low Sulphur Gas Oil Option vs. Statement of the Purpose of, and COMMISSION Low Sulphur Gas Oil Front Line Swap/ Statutory Basis for, the Proposed Rule Low-Sulphur Gas Oil Average Price [Release No. 34–68542; File No. SR–ICEEU– Change Option. 2012–20] In addition to providing clearing • WBS/WSP, WTI Future/WTI Option Self-Regulatory Organizations; ICE services for credit default swaps, ICE vs. WTI First Line Swap/WTI Average Clear Europe Limited; Notice of Filing Clear Europe also provides clearing Price Option. and Immediate Effectiveness of services for non-securities contracts in Going forward, ICE Clear Europe will Proposed Rule Change Related to energy and emissions markets (‘‘Energy notify Clearing Members of the SPAN Margin Methodology Futures Products’’). Position Allocation applicable Volatility Credit rates in due Methodology is an enhancement to the course. Inter-contract spreads in respect Enhancements to Inter-Contract ® 6 Credits and Average Option Pricing SPAN for the ICE Margining of all other products are unaffected. At end of day on April 6, 2012, the Model for Energy Clearing Members algorithm employed to calculate Original Margin for certain Energy Clearing House enabled the Average December 27, 2012. Futures Products. This feature is Price Option model for Options on Pursuant to Section 19(b)(1) of the applied for certain Energy Futures Brent, Gas Oil, Low-Sulphur Gas Oil Securities Exchange Act of 1934 Products where the position in such a and WTI First Line Swaps (Commodity (‘‘Act’’),1 and Rule 19b–4 thereunder,2 product can be better represented as one Codes I, GSP, ULA and R). notice is hereby given that on December or more positions in alternate products As of April 9, 2012, a modified Black 19, 2012, ICE Clear Europe Limited for the purposes of calculating Original 76 pricing model has been used to (‘‘ICE Clear Europe’’) filed with the Margin. This Position Allocation determine scanning losses in respect of Securities and Exchange Commission Methodology will result in new Average Price Options. This model (‘‘Commission’’) the proposed rule enhanced positions, but the SPAN reflects the risk reduction inherent change as described in Items I, II and III margin calculation algorithm itself has within these options during the below, which Items have been prepared not been changed. These changes will averaging period prior to final primarily by ICE Clear Europe. ICE Clear impact both the algorithm employed settlement. This change has no impact Europe filed the proposal pursuant to and the format of SPAN for ICE Array on Clearing Member systems as this Section 19(b)(3)(A)(iii) of the Act,3 and Files (‘‘SPAN Array Files’’) published change is reflected within the SPAN Rule 19b–4(f)(4)(ii) thereunder,4 so that by ICE Clear Europe and will necessitate Array Files and requires no changes to the proposal was effective upon filing changes to the applications used by any software or algorithms within the Energy Clearing Members to calculate SPAN methodology. with the Commission. The Commission ® is publishing this notice to solicit margin on their Proprietary and All updated SPAN margin comments on the proposed change from Customer positions. ICE Clear Europe parameters can be found at: https:// interested persons. has updated the original technical www.theice.com/ specification, at the request of Clearing clear_europe_span_parameters.jhtml. I. Self-Regulatory Organization’s Members, in order to provide further ICE Clear Europe has also published Statement of the Terms of Substance of clarification and examples relating to test SPAN Array Files conforming to the the Proposed Rule Change implementation of Volatility Credit. new SPAN Array File Format, v2.5, The purpose of the change is to As of April 2, 2012, a change to the which incorporates credit rates in implement changes to the SPAN® for calculation of the inter-contract credit respect of the product pairings ICE Margining algorithm employed to that implements an additional credit, identified above. The test files are calculate Original Margin (‘‘Margin’’) on the Volatility Credit, was made. The available from the file download service Clearing Member positions. All change to the Inter-Contract Credit (AFTS) and are located in the ‘‘/test’’ capitalized terms not defined herein are algorithm yields an additional credit sub-directory of the standard SPAN defined in the ICE Clear Europe Rules. that is included in the existing inter- Array download location on AFTS. contract credit. Since April 2, 2012, the These files are named according to the II. Self-Regulatory Organization’s SPAN Arrays published by ICE Clear test file naming convention below: Statement of the Purpose of, and Europe include the Volatility Risk IPEmmddT.csv.zip or Statutory Basis for, the Proposed Rule Credit Rate (the Offset Rate) within the IPEmmddT.sp5.zip, where, • Change type 14 records. mmdd represents the business Since March 30 2012, the Volatility month and day; In its filing with the Commission, ICE • Clear Europe included statements Credit is introduced in respect of the The sp5 file is of the same format concerning the purpose of and basis for as the pa5 format file that Members the proposed rule change and discussed 5 The Commission has modified the text of the might download from the CME ftp site. summaries prepared by ICE Clear Europe. Section 17A(b)(3)(F) of the Act 7 6 SPAN is a registered trademark of Chicago 12 17 CFR 200.30–3(a)(12). requires, among other things, that the Mercantile Exchange Inc., used herein under 1 rules of a clearing agency be designed to 15 U.S.C. 78s(b)(1). license. Chicago Mercantile Exchange Inc. assumes 2 17 CFR 240.19b–4. no responsibility in connection with the use of promote the prompt and accurate 3 15 U.S.C. 78s(b)(3)(A)(iii). SPAN by any person or entity. SPAN is a risk 4 17 CFR 240.19b–4(f)(4)(ii). evaluation and margin framework algorithm. 7 15 U.S.C. 78q–1(b)(3)(F).

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clearance and settlement of securities Electronic Comments SECURITIES AND EXCHANGE transactions and, to the extent • Use the Commission’s Internet COMMISSION applicable, derivative agreements, comment form (http://www.sec.gov/ contracts, and transactions. ICE Clear rules/sro.shtml) or [Release No. 34–68541; File No. SR–ICEEU– Europe believes that the proposed • Send an email to rule- 2012–19] change with respect to Energy Futures [email protected]. Please include File Products is consistent with the Number SR–ICEEU–2012–20 on the Self-Regulatory Organizations; ICE requirements of the Act and the rules subject line. Clear Europe Limited; Notice of Filing and regulations thereunder applicable to and Immediate Effectiveness of ICE Clear Europe, in particular, with Paper Comments Proposed Rule Change Related to Section 17A(b)(3)(F),8 because improved • Send paper comments in triplicate Delivery Margin Rates for Physically margining protects investors and the to Elizabeth M. Murphy, Secretary, Deliverable Contracts for Energy public interest. Securities and Exchange Commission, Clearing Members 100 F Street NE., Washington, DC B. Self-Regulatory Organization’s 20549–1090. December 27, 2012. Statement on Burden on Competition All submissions should refer to File Pursuant to Section 19(b)(1) of the ICE Clear Europe does not believe the Number SR–ICEEU–2012–20. This file Securities Exchange Act of 1934 proposed change would have any number should be included on the (‘‘Act’’),1 and Rule 19b–4 thereunder,2 impact, or impose any burden, on subject line if email is used. To help the notice is hereby given that on December competition. Commission process and review your 19, 2012, ICE Clear Europe Limited C. Self-Regulatory Organization’s comments more efficiently, please use (‘‘ICE Clear Europe’’) filed with the Statement on Comments on the only one method. The Commission will Securities and Exchange Commission Proposed Rule Change Received From post all comments on the Commission’s (‘‘Commission’’) the proposed rule Members, Participants or Others Internet Web site (http://www.sec.gov/ change as described in Items I, II and III rules/sro.shtml). Copies of the below, which Items have been prepared Written comments relating to the submission, all subsequent primarily by ICE Clear Europe. ICE Clear proposed change have not been solicited amendments, all written statements Europe filed the proposal pursuant to or received. ICE Clear Europe will notify with respect to the proposed rule Section 19(b)(3)(A)(iii) of the Act,3 and the Commission of any written change that are filed with the Rule 19b–4(f)(4)(ii) thereunder,4 so that comments received by ICE Clear Europe. Commission, and all written the proposal was effective upon filing III. Date of Effectiveness of the communications relating to the with the Commission. The Commission Proposed Rule Change and Timing for proposed rule change between the is publishing this notice to solicit Commission Action Commission and any person, other than comments on the proposed change from those that may be withheld from the interested persons. The foregoing rule change has become public in accordance with the effective upon filing pursuant to Section provisions of 5 U.S.C. 552, will be I. Self-Regulatory Organization’s 19(b)(3)(A)(iii) of the Act 9 and Rule available for Web site viewing and Statement of the Terms of Substance of 19b–4(f)(4)(ii) 10 thereunder because it printing in the Commission’s Public the Proposed Rule Change primarily affects the futures clearing Reference Room, 100 F Street NE., The purpose of the change is to operations of the clearing agency with Washington, DC 20549, on official implement enhancements to the respect to futures that are not security business days between the hours of margining of physically deliverable futures, and does not significantly affect 10:00 a.m. and 3:00 p.m. Copies of such positions that have expired and are in any securities clearing operations of the filings will also be available for tender/delivery. The new delivery clearing agency or any related rights or inspection and copying at the principal margin rates and contingent variation obligations of the clearing agency or office of ICE Clear Europe and on ICE margin price sources have been persons using such service. At any time Clear Europe’s Web site at https:// proposed by ICE Clear Europe. All within 60 days of the filing of the www.theice.com/publicdocs/ capitalized terms not defined herein are proposed rule change, the Commission _ regulatory filings/ defined in the ICE Clear Europe Rules. summarily may temporarily suspend ICEU_SEC_121912_2012-20.pdf. such rule change if it appears to the All comments received will be posted II. Self-Regulatory Organization’s Commission that such action is without change; the Commission does Statement of the Purpose of, and necessary or appropriate in the public not edit personal identifying Statutory Basis for, the Proposed Rule interest, for the protection of investors, information from submissions. You Change or otherwise in furtherance of the should submit only information that 11 In its filing with the Commission, ICE purposes of the Act. you wish to make available publicly. All Clear Europe included statements submissions should refer to File IV. Solicitation of Comments concerning the purpose of and basis for Number SR–ICEEU–2012–20 and the proposed rule change and discussed Interested persons are invited to should be submitted on or before any comments it received on the submit written data, views, and January 24, 2013. arguments concerning the foregoing, proposed rule change. The text of these including whether the proposed rule For the Commission, by the Division of statements may be examined at the Trading and Markets, pursuant to delegated places specified in Item IV below. ICE change is consistent with the Act. authority.12 Clear Europe has prepared summaries, Comments may be submitted by any of Elizabeth M. Murphy, the following methods: set forth in sections A, B, and C below, Secretary. 8 15 U.S.C. 78q–1(b)(3)(F). [FR Doc. 2012–31570 Filed 1–2–13; 8:45 am] 1 15 U.S.C. 78s(b)(1). 9 15 U.S.C. 78s(b)(3)(A)(iii). BILLING CODE 8011–01–P 2 17 CFR 240.19b–4. 10 17 CFR 240.19b–4(f)(4)(ii). 3 15 U.S.C. 78s(b)(3)(A)(iii). 11 15 U.S.C. 78s(b)(3)(C). 12 17 CFR 200.30–3(a)(12). 4 17 CFR 240.19b–4(f)(4)(ii).

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of the most significant aspects of these Futures Products’’). ICE Clear Europe parameters can be found at https:// statements.5 implemented enhancements to the www.theice.com/ margining of physically deliverable A. Self-Regulatory Organization’s ClearEuropeSpanParameterFiles.shtml positions for certain Energy Futures Statement of the Purpose of, and in the Deliverable Contracts Security Products that have expired and are in Rates file. All of the SPAN® 6 margin Statutory Basis for, the Proposed Rule tender/delivery. In doing so, ICE Clear Change parameters for positions that are not in Europe has eliminated the use of SPAN tender/delivery remain unchanged. In addition to providing clearing for calculating margin for physically- services for credit default swaps, ICE deliverable positions and instead Data from the sources referenced Clear Europe also provides clearing replaced it with calculation of a separate below will be used in connection with services for non-securities contracts in Delivery Margin for certain Energy the Contingent Variation Margin energy and emissions markets (‘‘Energy Futures Products. The Delivery Margin calculations.

ICE physical Description Platts code Description code

Y ...... UK Base ...... AASTN00 ...... Base Week Ahead + 1. P ...... UK Peak ...... AASTP00 ...... Peak Week Ahead + 1. M ...... UK Nat Gas ...... NGAAC00 ...... Balance of Month. TTF ...... TTF Nat Gas ...... GTFTM01 ...... Prompt Month. NGM ...... NCG Nat Gas ...... GERTM00 ...... Prompt Month. GPM ...... Gaspool Nat Gas ...... GBBTM00 ...... Prompt Month.

The mid-prices are used and C. Self-Regulatory Organization’s including whether the proposed rule calculated where only bid and offer Statement on Comments on the change is consistent with the Act. prices are available. Rounding Proposed Rule Change Received From Comments may be submitted by any of conventions will be the same as those Members, Participants, or Others the following methods: that currently apply to the relevant Written comments relating to the Electronic Comments future contracts. proposed change have not been solicited • Use the Commission’s Internet 7 or received. ICE Clear Europe will notify Section 17A(b)(3)(F) of the Act comment form (http://www.sec.gov/ requires, among other things, that the the Commission of any written comments received by ICE Clear Europe. rules/sro.shtml) or rules of a clearing agency be designed to • Send an email to rule- promote the prompt and accurate III. Date of Effectiveness of the [email protected]. Please include File clearance and settlement of securities Proposed Rule Change and Timing for Number SR–ICEEU–2012–19 on the transactions and, to the extent Commission Action subject line. applicable, derivative agreements, The foregoing rule change has become contracts, and transactions. ICE Clear Paper Comments effective upon filing pursuant to Section • Europe believes that the proposed 19(b)(3)(A)(iii) of the Act 9 and Rule Send paper comments in triplicate change with respect to Energy Futures 19b–4(f)(4)(ii) 10 thereunder because it to Elizabeth M. Murphy, Secretary, Products is consistent with the primarily affects the futures clearing Securities and Exchange Commission, requirements of the Act and the rules operations of the clearing agency with 100 F Street NE., Washington, DC and regulations thereunder applicable to respect to futures that are not security 20549–1090. ICE Clear Europe, in particular, with futures, and does not significantly affect All submissions should refer to File Section 17A(b)(3)(F),8 because any securities clearing operations of the Number SR–ICEEU–2012–19. This file enhancements to the margining of clearing agency or any related rights or number should be included on the physically deliverable positions for obligations of the clearing agency or subject line if email is used. To help the certain Energy Futures Products that persons using such service. At any time Commission process and review your have expired and are in tender/delivery within 60 days of the filing of the comments more efficiently, please use protects investors and the public proposed rule change, the Commission only one method. The Commission will interest. summarily may temporarily suspend post all comments on the Commission’s such rule change if it appears to the Internet Web site (http://www.sec.gov/ B. Self-Regulatory Organization’s Commission that such action is rules/sro.shtml). Copies of the Statement on Burden on Competition necessary or appropriate in the public submission, all subsequent amendments, all written statements ICE Clear Europe does not believe the interest, for the protection of investors, or otherwise in furtherance of the with respect to the proposed rule proposed change would have any purposes of the Act.11 change that are filed with the impact, or impose any burden, on Commission, and all written competition. IV. Solicitation of Comments communications relating to the Interested persons are invited to proposed rule change between the submit written data, views, and Commission and any person, other than arguments concerning the foregoing, those that may be withheld from the

5 The Commission has modified the text of the no responsibility in connection with the use of 8 15 U.S.C. 78q–1(b)(3)(F). summaries prepared by ICE Clear Europe. SPAN by any person or entity. SPAN is a risk 9 15 U.S.C. 78s(b)(3)(A)(iii). 6 SPAN is a registered trademark of Chicago evaluation and margin framework algorithm. 10 17 CFR 240.19b–4(f)(4)(ii). Mercantile Exchange Inc., used herein under 7 15 U.S.C. 78q–1(b)(3)(F). 11 license. Chicago Mercantile Exchange Inc. assumes 15 U.S.C. 78s(b)(3)(C).

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public in accordance with the I. Self-Regulatory Organization’s suffered extensive damage as a result of provisions of 5 U.S.C. 552, will be Statement of the Terms of Substance of Hurricane Sandy. The type of damage available for Web site viewing and the Proposed Rule Change that was sustained will require the printing in the Commission’s Public The Exchange proposes to amend its third-party carrier to rebuild the Reference Room, 100 F Street NE., Price List to provide relief for Floor infrastructure that supports the Washington, DC 20549, on official brokers from the Annual Telephone telephone services, rather than engage business days between the hours of Line Charge and the Annual Fee for in repairs of the existing lines.4 In 10:00 a.m. and 3:00 p.m. Copies of such November and December 2012, which addition to the damage to telephone filings will also be available for the Exchange proposes to become lines, internet bandwidth has been inspection and copying at the principal operative as of November 1, 2012. The reduced considerably. The Exchange office of ICE Clear Europe and on ICE text of the proposed rule change is notes that it is waiving the fee for Floor Clear Europe’s Web site at https:// available on the Exchange’s Web site at brokers only because off-Floor member www.theice.com/publicdocs/ www.nyse.com, at the principal office of firms were not impacted by these _ _ _ regulatory filings/ICEU SEC the Exchange, and at the Commission’s services. In addition, DMMs are on the _ 121912 2012-19.pdf. Public Reference Room. Floor but do not engage in an agency All comments received will be posted business with customers from the Floor without change; the Commission does II. Self-Regulatory Organization’s and, therefore, were not impacted by the not edit personal identifying Statement of the Purpose of, and telecommunications issues. The information from submissions. You Statutory Basis for, the Proposed Rule proposed waiver would be $33.33 for should submit only information that Change each month. you wish to make available publicly. All In its filing with the Commission, the Currently, member organizations are submissions should refer to File self-regulatory organization included charged an Annual Fee of $40,000 per Number SR–ICEEU–2012–19 and statements concerning the purpose of, license (the equivalent of $3,333.33 per should be submitted on or before and basis for, the proposed rule change month) for the first two licenses held by January 24, 2013. and discussed any comments it received a member organization and $25,000 per For the Commission, by the Division of on the proposed rule change. The text license (the equivalent of $2,083.33 per Trading and Markets, pursuant to delegated of those statements may be examined at month) for additional licenses held by a authority.12 the places specified in Item IV below. member organization. The Exchange Elizabeth M. Murphy, The Exchange has prepared summaries, proposes to provide a monthly credit of Secretary. set forth in sections A, B, and C below, $2,000 for the first and second Floor [FR Doc. 2012–31569 Filed 1–2–13; 8:45 am] of the most significant parts of such broker licenses held by a member statements. BILLING CODE 8011–01–P organization and a monthly credit of A. Self-Regulatory Organization’s $500 for each additional Floor broker Statement of the Purpose of, and license held by a member organization SECURITIES AND EXCHANGE Statutory Basis for, the Proposed Rule for November and December 2012 COMMISSION Change because of the impact of Hurricane Sandy on Floor brokers. For example, a [Release No. 34–68538; File No. SR–NYSE– 1. Purpose member organization with only one 2012–71] The Exchange proposes to amend its Floor broker license would receive a $2,000 credit in November and Self-Regulatory Organizations; New Price List to provide relief for Floor December 2012, and a member York Stock Exchange LLC; Notice of brokers from the Annual Telephone organization with three Floor broker Filing and Immediate Effectiveness of Line Charge and the Annual Fee for licenses would receive a total of $4,500 Proposed Rule Change Amending the November and December 2012, which in credits for November and December Price List To Waive Certain Fees for the Exchange proposes to become 2012. Floor Brokers for November and operative as of November 1, 2012. December 2012 Currently, member organizations are As stated above, Hurricane Sandy had charged an Annual Telephone Line a disproportionate impact on Floor December 27, 2012. Charge of $400 per phone number. The brokers compared with off-Floor Pursuant to Section 19(b)(1) 1 of the Exchange proposes to waive the fee for member firms and DMMs, including Securities Exchange Act of 1934 (the Floor brokers for November and limited telephone service, no direct ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 December 2012 on a prorated basis customer telephone lines, limited notice is hereby given that December 17, because Hurricane Sandy affected the Internet service, intermittent cellular 2012, New York Stock Exchange LLC ability of Floor brokers to communicate telephone service at the Exchange, and (‘‘NYSE’’ or the ‘‘Exchange’’) filed with with customers from the Floor. the Securities and Exchange The Exchange has been advised by its 4 The Exchange filed a rule change to temporarily Commission (the ‘‘Commission’’) the third-party carrier that the damage to suspend those aspects of Rules 36.20, 36.21, and the telephone connections is very 36.30 that would not permit Floor brokers and proposed rule change as described in Designated Market Makers (‘‘DMMs’’) to use Items I and II below, which Items have extensive, and as a result, the telephone personal portable phone devices on the Floor been prepared by the self-regulatory line connections for Floor brokers still following the aftermath of Hurricane Sandy and organization. The Commission is are not fully operational and may not be during the period that phone service was not fully so for at least another month, and functional. See Securities Exchange Act Release No. publishing this notice to solicit 68137 (November 1, 2012), 77 FR 66893 (November comments on the proposed rule change possibly longer, given the type of work 7, 2012) (SR–NYSE–2012–58). The temporary from interested persons. that needs to be completed to restore the suspension was subsequently extended for Floor telephone services. In particular, the brokers and DMMs, and again extended for Floor brokers after the Exchange was able to restore 12 Exchange notes that the telephone lines 17 CFR 200.30–3(a)(12). service for DMMs. See Securities Exchange Act 1 15 U.S.C. 78s(b)(1). that support both the wired and wireless Release No. 68161 (November 5, 2012), 77 FR 67704 2 15 U.S.C. 78a. connections for Floor brokers are based (November 13, 2012) (SR–NYSE–2012–61) and File 3 17 CFR 240.19b–4. in an area of lower Manhattan that No. SR–NYSE–2012–64.

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persistent busy signals.5 As a result, provide relief for Floor brokers in this are conducting their regular business on Floor brokers face greater operating regard. the Floor. The Exchange further believes challenges and have experienced The Exchange believes the proposed that the proposed waiver and credit do reduced activity from certain accounts change to the Annual Telephone Line not permit unfair discrimination and customers compared with pre- Charge and Annual Fee for Floor because they would provide relief for Hurricane Sandy levels. Therefore, brokers is equitable and not unfairly Floor brokers that have been Floor brokers are not getting the full discriminatory because Floor brokers disproportionally impacted in their benefit of their licenses. are the only class of member ability to operate as agents for customers The proposed waivers would apply organization that was affected by the during this time of unprecedented retroactively and would be reflected in telecommunications issues, which has weather disruptions. the December 2012 and January 2013 impacted their ability to conduct their regular business and has resulted in B. Self-Regulatory Organization’s billing statements. Statement on Burden on Competition The proposed changes are not reduced activity from certain accounts otherwise intended to address any other and customers. Therefore, it is equitable The Exchange does not believe that problem, and the Exchange is not aware and not unfairly discriminatory to offer the proposed rule change will impose of any significant problem that the the fee waiver and credit only to Floor any burden on competition that is not affected member organizations would brokers, which is the only class of Floor necessary or appropriate in furtherance have in complying with the proposed members not getting the full benefit of of the purposes of the Act. changes. their licenses. In addition, the Exchange C. Self-Regulatory Organization’s believes that because communications 2. Statutory Basis Statement on Comments on the with customers is a vital part of a Floor Proposed Rule Change Received From The Exchange believes that the broker’s role as agent, during the period Members, Participants, or Others proposed rule change is consistent with when phone service continues to be No written comments were solicited Section 6(b) of the Act,6 in general, and intermittent, Floor brokers should or received with respect to the proposed furthers the objectives of Section 6(b)(4) receive relief from the Annual rule change. of the Act,7 in particular, because it Telephone Line Charge. provides for the equitable allocation of The Exchange believes that the III. Date of Effectiveness of the reasonable dues, fees, and other charges proposed monthly credit of $2,000 for Proposed Rule Change and Timing for among its members and issuers and the first and second licenses held by a Commission Action Floor broker for November and other persons using its facilities and Because the proposed rule change does not unfairly discriminate between December 2012 is reasonable because all Floor brokers hold at least one license, does not: (i) Significantly affect the customers, issuers, brokers, or dealers. protection of investors or the public The Exchange also believes that the and as such, all member organizations that have a Floor broker license will interest; (ii) impose any significant proposed rule change is consistent with burden on competition; and (iii) become Section 6(b)(5) of the Act,8 in particular, receive at least a $2,000 per month credit for November and December operative prior to 30 days from the date because it is designed to prevent on which it was filed, or such shorter fraudulent and manipulative acts and 2012. The Exchange believes that the proposed monthly credit of $500 for time as the Commission may designate, practices, to promote just and equitable if consistent with the protection of principles of trade, to foster cooperation each additional Floor broker license held by a member organization for investors and the public interest, the and coordination with persons engaged proposed rule change has become in regulating, clearing, settling, November and December 2012 is reasonable because it will provide effective pursuant to Section 19(b)(3)(A) processing information with respect to, additional compensation to a member of the Act 9 and Rule 19b–4(f)(6)(iii) and facilitating transactions in organization that holds and pays for thereunder.10 securities, to remove impediments to, more than two Floor broker licenses. In A proposed rule change filed under and perfect the mechanisms of, a free 11 addition, the Exchange believes that the Rule 19b–4(f)(6) normally does not and open market and a national market proposed credits are equitable and not become operative prior to 30 days after system and, in general, to protect unfairly discriminatory because member the date of the filing. However, pursuant investors and the public interest and 12 organizations that hold only one or two to Rule 19b–4(f)(6)(iii), the because it is not designed to permit Floor broker licenses are generally Commission may designate a shorter unfair discrimination between smaller and are less able to absorb the time if such action is consistent with the customers, issuers, brokers, or dealers. operating impact resulting from the protection of investors and the public The Exchange believes that waiving infrastructure damage caused by interest. The Exchange has asked the the Annual Telephone Line Charge and Hurricane Sandy. In addition, member Commission to waive the 30-day providing a monthly credit for the organizations that hold more than two operative delay so that the proposal may Annual Fee for Floor brokers for Floor broker licenses pay a reduced become operative immediately upon November and December 2012 is Annual Fee for additional licenses, and filing. The Commission believes that reasonable because Hurricane Sandy therefore, it is equitable and not unfairly waiving the 30-day operative delay is affected the ability of Floor brokers to discriminatory to provide a lower communicate with customers and the monthly credit for each additional Floor 9 15 U.S.C. 78s(b)(3)(A). ease with which they could represent broker license. 10 17 CFR 240.19b–4(f)(6)(iii). In addition, Rule public orders on the Floor. Therefore, The Exchange believes that the 19b–4(f)(6) requires a self-regulatory organization to the Exchange believes it is reasonable to give the Commission written notice of its intent to proposed relief for Floor brokers file the proposed rule change, along with a brief removes impediments to and perfects description and text of the proposed rule change, 5 As part of the proposed rule change, the the mechanism of a free and open at least five business days prior to the date of filing Exchange proposes to renumber the footnotes in the of the proposed rule change, or such shorter time Price List accordingly. market and national market system as designated by the Commission. The Exchange 6 15 U.S.C. 78f(b). because it would provide relief for Floor has satisfied this requirement. 7 15 U.S.C. 78f(b)(4). brokers that are experiencing ongoing 11 17 CFR 240.19b–4(f)(6). 8 15 U.S.C. 78f(b)(5). issues with telephone service while they 12 17 CFR 240.19b–4(f)(6)(iii).

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consistent with the protection of provisions of 5 U.S.C. 552, will be All comments will become part of this investors and the public interest. The available for Web site viewing and docket and will be available for Commission notes that doing so will printing in the Commission’s Public inspection and copying at the above allow the Exchange to provide the Reference Room, 100 F Street NE., address between 10 a.m. and 5 p.m., proposed relief during the billing period Washington, DC 20549, on official E.T., Monday through Friday, except in which the Floor brokers were business days between the hours of federal holidays. An electronic version affected. Therefore, the Commission 10:00 a.m. and 3:00 p.m. Copies of the of this document and all documents hereby waives the 30-day operative filing also will be available for entered into this docket is available on delay and designates the proposal inspection and copying at the principal the World Wide Web at http:// operative upon filing.13 office of the Exchange. All comments www.regulations.gov. At any time within 60 days of the received will be posted without change; filing of such proposed rule change, the the Commission does not edit personal FOR FURTHER INFORMATION CONTACT: Commission summarily may identifying information from Linda Williams, U.S. Department of temporarily suspend such rule change if submissions. You should submit only Transportation, Maritime it appears to the Commission that such information that you wish to make Administration, 1200 New Jersey action is necessary or appropriate in the available publicly. All submissions Avenue SE., Room W23–453, public interest, for the protection of should refer to File Number SR–NYSE– Washington, DC 20590. Telephone 202– investors, or otherwise in furtherance of 2012–71 and should be submitted on or 366–0903, Email the purposes of the Act. before January 24, 2013. [email protected]. IV. Solicitation of Comments For the Commission, by the Division of SUPPLEMENTARY INFORMATION: As Trading and Markets, pursuant to delegated described by the applicant the intended Interested persons are invited to 14 authority. service of the vessel HALCYON is: submit written data, views, and Lynn M. Powalski, Intended Commercial Use of Vessel: arguments concerning the foregoing, Deputy Secretary. including whether the proposed rule ‘‘Private yacht charters.’’ [FR Doc. 2012–31572 Filed 1–2–13; 8:45 am] change is consistent with the Act. Geographic Region: ‘‘Florida.’’ BILLING CODE 8011–01–P Comments may be submitted by any of The complete application is given in the following methods: DOT docket MARAD–2012–0114 at Electronic Comments DEPARTMENT OF TRANSPORTATION http://www.regulations.gov. Interested parties may comment on the effect this • Use the Commission’s Internet Maritime Administration action may have on U.S. vessel builders comment form (http://www.sec.gov/ or businesses in the U.S. that use U.S.- rules/sro.shtml); or [Docket No. MARAD–2012–0114] • flag vessels. If MARAD determines, in Send an email to rule- accordance with 46 U.S.C. 12121 and [email protected]. Please include File Requested Administrative Waiver of the Coastwise Trade Laws: Vessel MARAD’s regulations at 46 CFR Part Number SR–NYSE–2012–71 on the 388, that the issuance of the waiver will subject line. HALCYON; Invitation for Public Comments have an unduly adverse effect on a U.S.- Paper Comments vessel builder or a business that uses AGENCY: Maritime Administration, U.S.-flag vessels in that business, a • Send paper comments in triplicate Department of Transportation. waiver will not be granted. Comments to Elizabeth M. Murphy, Secretary, should refer to the docket number of Securities and Exchange Commission, ACTION: Notice. this notice and the vessel name in order 100 F Street NE., Washington, DC SUMMARY: As authorized by 46 U.S.C. for MARAD to properly consider the 20549–1090. 12121, the Secretary of Transportation, comments. Comments should also state All submissions should refer to File as represented by the Maritime the commenter’s interest in the waiver Number SR–NYSE–2012–71. This file Administration (MARAD), is authorized application, and address the waiver number should be included on the to grant waivers of the U.S.-build criteria given in § 388.4 of MARAD’s subject line if email is used. To help the requirement of the coastwise laws under regulations at 46 CFR Part 388. Commission process and review your certain circumstances. A request for comments more efficiently, please use such a waiver has been received by Privacy Act only one method. The Commission will MARAD. The vessel, and a brief Anyone is able to search the post all comments on the Commission’s description of the proposed service, is electronic form of all comments Internet Web site (http://www.sec.gov/ listed below. received into any of our dockets by the rules/sro.shtml.) Copies of the DATES: Submit comments on or before name of the individual submitting the submission, all subsequent February 4, 2013. comment (or signing the comment, if amendments, all written statements ADDRESSES: Comments should refer to submitted on behalf of an association, with respect to the proposed rule docket number MARAD–2012–0114. business, labor union, etc.). You may change that are filed with the Written comments may be submitted by review DOT’s complete Privacy Act Commission, and all written hand or by mail to the Docket Clerk, Statement in the Federal Register communications relating to the U.S. Department of Transportation, published on April 11, 2000 (Volume proposed rule change between the Docket Operations, M–30, West 65, Number 70; Pages 19477–78). Commission and any person, other than Building Ground Floor, Room W12–140, By Order of the Maritime Administrator. those that may be withheld from the 1200 New Jersey Avenue SE., public in accordance with the Washington, DC 20590. You may also Dated: December 28, 2012. send comments electronically via the Thomas M. Hudson, 13 For purposes only of waiving the 30-day Assistant Secretary, Maritime Administration. operative delay, the Commission has considered the Internet at http://www.regulations.gov. proposed rule’s impact on efficiency, competition, [FR Doc. 2012–31637 Filed 1–2–13; 8:45 am] and capital formation. See 15 U.S.C. 78c(f). 14 17 CFR 200.30–3(a)(12). BILLING CODE 4910–81–P

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DEPARTMENT OF TRANSPORTATION revocation under 49 U.S.C. 10502(d) consummation has not been effected by must be filed. CSXT’s filing of a notice of Surface Transportation Board Provided no formal expression of consummation by January 3, 2014, and [Docket No. AB 55 (Sub-No. 724X)] intent to file an offer of financial there are no legal or regulatory barriers assistance (OFA) has been received, this to consummation, the authority to CSX Transportation, Inc.; exemption will be effective on February abandon will automatically expire. Abandonment Exemption—in Ewing 2, 2013, unless stayed pending Board decisions and notices are Township, Mercer County, NJ reconsideration. Petitions to stay that do available on our Web site at not involve environmental issues,1 www.stb.dot.gov. CSX Transportation, Inc. (CSXT) has formal expressions of intent to file an Decided: December 26, 2012. filed a verified notice of exemption OFA under 49 CFR 1152.27(c)(2),2 and under 49 CFR part 1152 subpart F— By the Board, Rachel D. Campbell, trail use/rail banking requests under 49 Director, Office of Proceedings. Exempt Abandonments to abandon an CFR 1152.29 must be filed by January Jeffrey Herzig, approximately 1.67-mile rail line on its 14, 2013. Petitions to reopen or requests Northern Region, Albany Division, for public use conditions under 49 CFR Clearance Clerk. Trenton Subdivision, between milepost 1152.28 must be filed by January 23, [FR Doc. 2012–31606 Filed 1–2–13; 8:45 am] QAT 32.82, near the connection to 2013, with the Surface Transportation BILLING CODE 4915–01–P CSXT’s main line located near Railroad Board, 395 E Street SW., Washington, Avenue and Water Drive, and the end of DC 20423–0001. the track at milepost QAT 34.49, in A copy of any petition filed with the DEPARTMENT OF TRANSPORTATION Ewing Township, Mercer County, N.J. Board should be sent to CSXT’s Surface Transportation Board (the Line). The Line traverses United representative: Louis E. Gitomer, Law States Postal Service Zip Codes 08628 Offices of Louis E. Gitomer, LLC, 600 [Docket No. FD 35697] and 08618, and includes the West Baltimore Avenue, Suite 301, Towson, Trenton Station located at milepost MD 21204. Buckeye Hammond Railroad, L.L.C.; QAT 33. If the verified notice contains false or Acquisition and Operation Exemption; In the notice, CSXT explains that, misleading information, the exemption Buckeye Partners, L.P. following abandonment, it intends to is void ab initio. Buckeye Hammond Railroad, L.L.C. reclassify a 1.40-mile portion of the Line CSXT has filed environmental and (BHRR), a noncarrier, has filed a verified between milepost QAT 32.80 and historic reports that address the effects, notice of exemption under 49 CFR milepost QAT 34.20 as industry lead if any, of the abandonment on the 1150.31 1 to acquire from Buckeye track for future transportation needs. environment and historic resources. Partners, L.P., a noncarrier, and to CSXT also intends to transfer the OEA will issue an environmental operate approximately 6,797 feet (1.29 remaining 0.29-mile portion of the Line assessment (EA) by January 8, 2013. miles) of track,2 existing railroad right- to the Christina Seix Academy to be Interested persons may obtain a copy of of-way, and bulk liquid transloading used as a roadway for access to the the EA by writing to OEA (Room 1100, facilities in Hammond, Ind. BHRR will school. CSXT states that the Line may Surface Transportation Board, interchange traffic with the Indiana be suitable for other public purposes, Washington, DC 20423–0001) or by Harbor Belt Railroad Company. but may be subject to reversionary calling OEA at (202) 245–0305. The transaction may be consummated Assistance for the hearing impaired is interests. on or after January 17, 2013 (30 days CSXT has certified that: (1) No local available through the Federal after the notice of exemption was filed). traffic has moved over the Line for at Information Relay Service at 1–800– BHRR certifies that its projected least two years; (2) any overhead traffic 877–8339. Comments on environmental annual revenues as a result of this can be rerouted over other lines; (3) no and historic preservation matters must transaction will not exceed those that formal complaint filed by a user of rail be filed within 15 days after the EA would qualify it as a Class III rail carrier service on the Line (or by a state or local becomes available to the public. and will not exceed $5 million. government entity acting on behalf of Environmental, historic preservation, If the verified notice contains false or such user) regarding cessation of service public use, or trail use/rail banking misleading information, the exemption over the Line either is pending with the conditions will be imposed, where is void ab initio. Petitions to revoke the Surface Transportation Board (Board) or appropriate, in a subsequent decision. exemption under 49 U.S.C. 10502(d) Pursuant to the provisions of 49 CFR with any U.S. District Court or has been may be filed at any time. The filing of 1152.29(e)(2), CSXT shall file a notice of decided in favor of complainant within a petition to revoke will not consummation with the Board to signify the two-year period; and (4) the automatically stay the effectiveness of that it has exercised the authority requirements at 49 CFR 1105.7(c) the exemption. Petitions to stay must be granted and fully abandoned the line. If (environmental report), 49 CFR 1105.11 filed no later than January 10, 2013 (at (transmittal letter), 49 CFR 1105.12 least seven days before the exemption 1 The Board will grant a stay if an informed (newspaper publication), and 49 CFR becomes effective). 1152.50(d)(1) (notice to governmental decision on environmental issues (whether raised by a party or by the Board’s Office of Environmental An original and 10 copies of all agencies) have been met. Analysis (OEA) in its independent investigation) pleadings, referring to Docket No. FD As a condition to this exemption, any cannot be made before the exemption’s effective 35697, must be filed with the Surface employee adversely affected by the date. See Exemption of Out-of-Serv. Rail Lines, 5 Transportation Board, 395 E Street SW., abandonment shall be protected under I.C.C.2d 377 (1989). Any request for a stay should be filed as soon as possible so that the Board may Oregon Short Line Railroad— take appropriate action before the exemption’s 1 The notice was initially filed on December 6, Abandonment Portion Goshen Branch effective date. 2012, but it did not meet the Board’s regulatory Between Firth & Ammon, in Bingham & 2 Each OFA must be accompanied by the filing requirements. BHRR filed supplements on Bonneville Counties, Idaho, 360 I.C.C. fee, which is currently set at $1,600. See December 17 and 18, 2012. Because the notice was Regulations Governing Fees for Servs. Performed in not complete until the December 18 filing, that date 91 (1979). To address whether this Connection with Licensing & Related Servs.—2012 will be considered the actual filing date. condition adequately protects affected Update, EP 542 (Sub-No. 20) (STB served July 27, 2 Applicant states that the track does not have employees, a petition for partial 2012). designated mileposts.

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Washington, DC 20423–0001. In financial institutions providing capital Bank Holding Companies/Financial addition, a copy of each pleading must and financial services to underserved Holding Companies, Brokers, and be served on David C. Dillon, 111 West markets. Dealers to Foreign Residents;’’ TIC BL– Washington Street, Suite 1023, Chicago, Affected Public: Private Sector: 2 ‘‘Monthly Report of Customers’ U.S. IL 60602. Businesses or other for-profits; not-for- Dollar Liabilities to Foreigners;’’ TIC Board decisions and notices are profit institutions. BQ–1 ‘‘Quarterly Report of Customers’ available on our Web site at Estimated Total Burden Hours: U.S. Dollar Claims on Foreigners;’’ TIC www.stb.dot.gov. 20,000. BQ–2 ‘‘Part 1: Quarterly Report of Decided: December 26, 2012. Foreign Currency Liabilities and Claims Robert Dahl, of Depository Institutions, Bank Holding By the Board, Rachel D. Campbell, Treasury PRA Clearance Officer. Director, Office of Proceedings. Companies/Financial Holding [FR Doc. 2012–31581 Filed 1–2–13; 8:45 am] Companies, Brokers and Dealers, and of Jeffrey Herzig, BILLING CODE 4810–70–P Their Domestic Customers Visa-A-Vis Clearance Clerk. Foreigners’’ and ‘‘Part 2: The Report of [FR Doc. 2012–31439 Filed 1–2–13; 8:45 am] Customers’ Foreign Currency Liabilities BILLING CODE 4915–01–P DEPARTMENT OF THE TREASURY to Foreigners;’’ and TIC BQ–3 ‘‘Quarterly Report of Maturities of Proposed Collections; Comment Selected Liabilities of Depository DEPARTMENT OF THE TREASURY Requests Institutions, Bank Holding Companies/ AGENCY: Departmental Offices; Financial Holding Companies, Brokers, Submission for OMB Review; Department of the Treasury. and Dealers to Foreigners.’’ Comment Request OMB Numbers: 1505–0017 (TIC BC), SUMMARY: The Department of the 1505–0019 (TIC BL–1), 1505–0018 (TIC Treasury, as part of its continuing effort December 28, 2012. BL–2), 1505–0016 (TIC BQ–1), 1505– to reduce paperwork burdens, invites The Department of the Treasury will 0020 (TIC BQ–2), and 1505–0189 (TIC the general public and other Federal submit the following information BQ–3). collection request to the Office of agencies to comment on revisions of an Abstract: Forms BC, BL–1, BL–2, BQ– Management and Budget (OMB) for information collection that are proposed 1, BQ–2, BQ–3 are part of the Treasury review and clearance in accordance for approval by the Office of International Capital (TIC) reporting with the Paperwork Reduction Act of Management and Budget. The Office of system, which is required by law (22 1995, Public Law 104–13, on or after the International Affairs within the U.S.C. 286f; 22 U.S.C. 3103; E.O. 10033; date of publication of this notice. Department of the Treasury is soliciting 31 CFR 128) and are designed to collect DATES: Comments should be received on comments concerning the revisions of timely information on international or before February 4, 2013 to be assured the Treasury International Capital (TIC) portfolio capital movements. These of consideration. Forms BC, BL–1, BL–2, BQ–1, BQ–2, forms are filed by all U.S.-resident ADDRESSES: Send comments regarding and BQ–3 (called the ‘‘TIC B forms’’). banks, other depository institutions, the burden estimate, or any other aspect DATES: Written comments should be brokers and dealers, and Bank Holding of the information collection, including received on or before March 4, 2013 to Companies/Financial Holding suggestion for reducing the burden, to be assured of consideration. Companies (BHC/FHC). On the monthly (1) Office of Information and Regulatory ADDRESSES: Direct all written comments forms, these organizations report their Affairs, Office of Management and to Dwight Wolkow, International own claims on (BC), their own liabilities Budget, Attention: Desk Officer for Portfolio Investment Data Systems, to (BL–1), and their U.S. customers’ Treasury, New Executive Office Department of the Treasury, Room 5422, liabilities to (BL–2) foreign residents, Building, Room 10235, Washington, DC 1500 Pennsylvania Avenue NW., denominated in U.S. dollars. On the 20503, or email at Washington, DC 20220. In view of quarterly forms, these organizations [email protected] and possible delays in mail delivery, please report their U.S.-resident customers’ (2) Treasury PRA Clearance Officer, also notify Mr. Wolkow by email U.S. dollar claims on foreign residents 1750 Pennsylvania Ave. NW., Suite ([email protected]), fax (BQ–1), and their own and their 8140, Washington, DC 20220, or email (202–622–2009) or telephone (202–622– domestic customers’ claims and at [email protected]. 1276). liabilities with foreign residents, where all claims and liabilities are FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT: denominated in foreign currencies (BQ– Copies of the submission(s) may be Copies of the proposed forms and 2). On the quarterly BQ–3 form, these obtained by calling (202) 927–5331, instructions are available on the organizations report the remaining email at [email protected], or the entire Treasury’s TIC Forms Web page, maturities of all their own U.S. dollar information collection request maybe http://www.treasury.gov/resource- and foreign currency liabilities found at www.reginfo.gov. center/data-chart-center/tic/Pages/ (excluding securities) to foreign forms.aspx. Requests for additional Community Development Financial residents. This information is necessary information should be directed to Mr. Institutions (CDFI) Fund for compiling the U.S. balance of Wolkow. OMB Number: 1559–0021. payments accounts and the U.S. Type of Review: Revision of a SUPPLEMENTARY INFORMATION: international investment position, and currently approved collection. Titles: Treasury International Capital for use in formulating U.S. international Title: Financial Assistance (FA) and (TIC) Form BC ‘‘Monthly Report of U.S. financial and monetary policies. Technical Assistance (TA) Component Dollar Claims of Depository Institutions, Current Actions: As a consequence of Application—CDFI Program. Bank Holding Companies/Financial the recent global financial crisis, Abstract: The CDFI Fund provides Holding Companies, Brokers, and international reporting standards for financial assistance in the form of Dealers on Foreigners;’’ TIC BL–1 collecting and reporting economic and grants, loans, equity investments and ‘‘Monthly Report of U.S. Dollar financial data have been enhanced, deposits to community development Liabilities of Depository Institutions, especially regarding each country’s

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external claims and liabilities. TIC as the consolidation/combination rules, column 10. In the second ‘‘of which’’ forms are consequently revised to reflect valuation rules, and reporting the item for ‘‘Total U.S.—Resident Bank the new standards. Provided below is a location of foreign counterparties. Debt; Loans to Banks’’ (8141–8), data are list of the revisions to reporting forms (e) Except for the TIC BQ–3, the list reportable in columns 3, 6, 9 and10. and instructions, effective beginning of countries for reporting the location of This item previously collected data for with reports as of June 30, 2013. foreign counterparties will be increased only the ‘‘Grand Total’’ column The following changes apply to all by six. This is the result of deleting (Column 10). TIC B forms: Netherlands Antilles (3720–6), 3. In the ‘‘of which’’ item at the end (a) The ‘‘who must report’’ section of removing ‘‘Montenegro’’ from ‘‘Serbia of the form for ‘‘Total U.S.—Resident the instructions is revised. Beginning and Montenegro (1321–8),’’ and adding Bank Debt; Short-Term Negotiable with the reports as of June 30, 2013, the Kosovo (1347–1), Montenegro (1362–5), Securities Issued by Banks’’ (8142–6), organizations required to file the TIC B Bonaire, Sint Eustatius and Saba (3616– data are reportable in columns 2, 5, 8 forms will include all types of U.S.- 1), Curac¸ao (3618–8), St. Martin and St. and10. This item previously collected resident financial institutions Barthelemy (3647–1), Sint Maarten data for only the ‘‘Grand Total’’ column (including, but not limited to banks, (3619–6), and South Sudan (5339–2). (f) (Column 10). other depository institutions, brokers/ These changes (a) through (l) will be 4. The sixth row of the ‘‘of which’’ dealers, bank/financial holding effective beginning with the reports as items, that was previously labeled companies, investment banks, insurance of June 30, 2013. ‘‘Liabilities of Other U.S. Debtor companies, credit card issuers, money Sectors,’’ is now labeled ‘‘Liabilities of market funds, pension funds, private (g) Changes to Form BC U.S.-Resident Non-Bank Financial equity funds, hedge funds, trusts, 1. As a result of the action in (a) Institutions (NBFIs)’’ and a new code finance companies, mortgage above, the title of Form BC is changed has been added in the code column. companies, commodity brokers and to ‘‘Report of U.S. Dollar Claims of Data are reportable only in column 10. dealers, investment advisors and Financial Institutions on Foreign Previously, there was no data collected managers, loan brokers). More Residents.’’ on this row. specifically, all financial institutions 2. In the ‘‘of which’’ items at the end 5. The seventh row (8150–3), which that previously filed TIC C forms (form of the form, a new row has been added was previously labeled ‘‘Other short- CQ–1 and form CQ–2) will file TIC B to collect ‘‘Claims on Foreign-Resident term negotiable securities’’ is now forms beginning with the reports as of Non-Bank Financial Institutions.’’ Data labeled ‘‘Short-term Negotiable June 30, 2013. Those financial are reportable in columns 4, 5, 6, 8 and Securities issued by NBFIs.’’ Data are institutions changing from filing the TIC 9. reportable only in columns 2, 5, 8 and C forms to filing the TIC B forms will 3. In the ‘‘of which’’ items at the end 10. This item previously collected data not be required to file the TIC C forms of the form, a new row has been added for only the ‘‘Grand Total’’ column after the reports as of May 31, 2013. to collect ‘‘Unpaid Insurance Claims.’’ (Column 10). This change affecting many U.S.- Data are reportable in columns 3, 5, 6 6. The eighth row (8155–8), which resident financial institutions, from and 8. was previously labeled ‘‘Loans to reporting on the TIC C forms to Others,’’ is now labeled ‘‘Loans to (h) Changes to Form BL–1 reporting on the TIC B forms, is NBFIs.’’ Data are reportable only in designed to improve the coverage of 1. As a result of the action in (a) columns 3, 6, 9 and 10. This item international financial transactions and above, the title of Form BL–1 is changed previously collected data for only the positions in the U.S. balance of to ‘‘Report of U.S. Dollar Liabilities of ‘‘Grand Total’’ column (Column 10). payments and in the U.S. international Financial Institutions to Foreign investment position, and reflects the Residents.’’ (j) Changes to Form BQ–1 change in the international statistical 2. In the ‘‘of which’’ items at the end 1. As a result of the action in (a) standards to include in portfolio of the form, a new row has been added above, the title of Form BQ–1 is changed investment (PI) most international to collect ‘‘Liabilities to Foreign- to ‘‘Report of Customers’ U.S. Dollar positions between financial institutions. Resident Non-Bank Financial Claims on Foreign Residents.’’ All financial transactions and positions Institutions.’’ Data are reportable in 2. In the ‘‘of which’’ items at the end between U.S. residents and foreign columns 5 through 9. of the form, a new row has been added residents are either PI or direct 3. In the ‘‘of which’’ items at the end to collect ’’Claims of U.S.-Resident Non- investment (DI), and all organizations of the form, a new row has been added Bank Financial Institutions.’’ Data are with such positions (above the amounts to collect ‘‘Unpaid Insurance Claims reportable in columns 1, 2, 3, 4 and 5. declared exempt in the reporting and Prepaid Insurance Premiums.’’ Data (k) Changes to Form BQ–2 instructions), must report them to either are reportable in columns 2, 4, 6, 7 and the TIC (which collects PI information) 8. 1. As a result of the action in (a) or BEA (which collects DI information). above, the title caption of Form BQ–2, (b) The instructions for these forms (i) Changes to Form BL–2 Part I, is changed to ‘‘Report of Foreign have been updated to add guidance for 1. As a result of the action in (a) Currency Liabilities and Claims of U.S. reporting on the new ‘‘of which’’ rows above, the title of Form BL–2 is changed Financial Institutions, and of their described in (g) through (l) below and to ‘‘Report of Customers’ U.S. Dollar Domestic Customers’ Foreign Currency the new section and columns described Liabilities to Foreign Residents.’’ Claims with Foreign Residents’’ and the in (l). (c) The General Instructions have 2. In the memorandum section at the title caption of Part II is changed to been reorganized and contain new end of the current form, the eight rows ‘‘Report of Customers’ Foreign Currency guidance on reporting accrued interest are changed to eight ‘‘of which’’ rows Liabilities to Foreign Residents.’’ and insurance/reinsurance business, that have the same eleven columns as 2. In the ‘‘of which’’ items at the end and on where to report. (d) Several do the other rows in the form. The first, of the form, a new row has been added sections of the instructions, including fourth and fifth ‘‘Of Which’’ rows to collect claims and liabilities the glossary, incorporate changes to (8102–7, 8144–2, 8146–9) are denominated in Swiss francs. Data are clarify the reporting requirements, such unchanged and data are reportable in reportable in columns 1 through 6.

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3. In the ‘‘of which’’ items at the end and is estimated to be generally twice as DATES: Written comments should be of the form, a new row has been added many hours for major data reporters as received on or before March 2, 2013 to to collect ‘‘Unpaid Insurance Claims for other reporters. be assured of consideration. and Prepaid Insurance Premiums.’’ Data Estimated Total Annual Burden ADDRESSES: Direct all written comments are reportable in columns 2 and 4. Hours: BC, 35,856 hours for 12 reports to Bureau of the Public Debt, Bruce A. 4. In the ‘‘of which’’ items at the end per year; BL–1, 29,484 hours for 12 Sharp, 200 Third Street A4–A, of the form, a new row has been added reports per year; BL–2, 7,920 hours for Parkersburg, WV 26106–1328, or to collect ‘‘Claims on/Liabilities to 12 reports per year; BQ–1, 963 hours for [email protected]. The Foreign-Resident Banks.’’ Data are 4 reports per year, BQ–2, 3,938 hours for opportunity to make comments online is reportable in columns 1 through 7. 4 reports per year, and BQ–3, 1,872 also available at www.pracomment.gov. 5. In the ‘‘of which’’ items at the end hours for 4 reports per year. FOR FURTHER INFORMATION CONTACT: of the form, a new row has been added Request for Comments: Comments Requests for additional information or to collect ’’Claims on/Liabilities to submitted in response to this notice will copies should be directed to Bruce A. Foreign-Resident Non-Bank Financial be summarized and/or included in the Sharp, Bureau of the Public Debt, 200 Institutions.’’ Data are reportable in request for Office of Management and Third Street A4–A, Parkersburg, WV columns 1 through 7. Budget approval. All comments will 26106–1328, (304) 480–8150. become a matter of public record. The (l) Changes to Form BQ–3 SUPPLEMENTARY INFORMATION: public is invited to submit written Form Numbers and Title: PD F 5354— 1. The name of the form is changed comments concerning: (a) Whether to ‘‘Report of Maturities of Selected FHA Transaction Request; PD F 5366— Forms BC, BL–1, BL–2, BQ–1, BQ–2, FHA New Account Request; PD F Claims and Liabilities of Financial and BQ–3 are necessary for the proper Institutions with Foreign Residents’’. 5367—FHA Debenture Transfer Request. performance of the functions of the OMB Number: 1535–0102. This and the following revisions of the Office, including whether the Abstract: The information is used to form respond to the changes in (a) above information will have practical uses; (b) (1) Establish a book-entry account; (2) and to international reporting standards the accuracy of the above estimate of the change information on a book-entry calling for reporting of maturities of burdens; (c) ways to enhance the account; and (3) transfer ownership of a claims and liabilities. quality, usefulness and clarity of the book-entry account on the HUD system, 2. The title ‘‘Part 1: Liabilities to information to be collected; (d) ways to maintained by the Federal Reserve Bank Foreign Residents—Remaining minimize the reporting and/or record of Philadelphia. Maturities’’ is added at the top of page keeping burdens on respondents, Current Actions: None. 2 to describe the existing one-half page including the use of information Type of Review: Extension. table that collects information on technologies to automate the collection Affected Public: Individuals or liabilities. of the data; and (e) estimates of capital Households. 3. A new section is added on page 2 or start-up costs of operation, Estimated Number of Respondents: of the form entitled ‘‘Part 2: Claims on maintenance and purchase of services to 300. Foreign Residents—Remaining provide information. Estimated Time per Respondent: 10 Maturities’’ that collects information on minutes. claims. The new section has three rows Dwight Wolkow, Estimated Total Annual Burden labeled: ‘‘Demand Deposits, Arrears, Administrator, International Portfolio Hours: 50. Resale Agreements Under Continuing Investment Data Systems. Request for Comments: Comments Contract, and Items With No Fixed [FR Doc. 2012–31564 Filed 1–2–13; 8:45 am] submitted in response to this notice will Maturity;’’ ‘‘Maturing in 1 Year or Less;’’ BILLING CODE 4810–25–P be summarized and/or included in the and ‘‘Maturing In Over 1 Year.’’ The request for OMB approval. All new section has four columns for data comments will become a matter of entry with the following titles: column DEPARTMENT OF THE TREASURY public record. Comments are invited on: 1 is ‘‘Non-Negotiable Foreign Deposits & (a) Whether the collection of Bureau of the Public Debt Brokerage Balances [reported on BC information is necessary for the proper (col. 1) & BQ–2, Part 1 (col. 3)];’’ column Proposed Information Collection; performance of the functions of the 2 is ‘‘Resale Agreements & Other Claims Comment Request agency, including whether the [reported on BC (cols. 3, 5) & BQ–2, Part information shall have practical utility; 1 (col. 4)];’’ column 3 is ‘‘Loan Claims ACTION: Notice and request for (b) the accuracy of the agency’s estimate Excluding Resale Agreements [reported comments. of the burden of the collection of on BC (cols. 3, 5) & BQ–2, Part 1 (col. information; (c) ways to enhance the 4)];’’ and column 4 is ‘‘Grand Total [sum SUMMARY: The Department of the quality, utility, and clarity of the of columns 1–3].’’ Treasury, as part of its continuing effort information to be collected; (d) ways to Type of Review: Revision of a to reduce paperwork and respondent minimize the burden of the collection of currently approved collection. burden, invites the general public and information on respondents, including Affected Public: Business or other for- other Federal agencies to take this through the use of automated collection profit organizations. opportunity to comment on proposed techniques or other forms of information Forms BC, BL–1, BL–2, BQ–1, BQ–2, and/or continuing information technology; and (e) estimates of capital and BQ–3. collections, as required by the or start-up costs and costs of operation, Estimated Number of Respondents: Paperwork Reduction Act of 1995, maintenance, and purchase of services BC, 302; BL–1, 348; BL–2, 80; BQ–1, 77; Public Law 104–13 (44 U.S.C. to provide information. BQ–2, 149 and BQ–3, 117. 3506(c)(2)(A). Currently the Bureau of Estimated Average Time per the Public Debt within the Department Dated: December 28, 2012. Respondent per Filing: BC, 9.9 hours; of the Treasury is soliciting comments Bruce A. Sharp, BL–1, 7.1 hours; BL–2, 8.25 hours; BQ– concerning collections of information Bureau Clearance Officer . 1, 3.1 hours; BQ–2, 6.6 hours; and BQ– required to comply with the terms and [FR Doc. 2012–31625 Filed 1–2–13; 8:45 am] 3, 4.0 hours. The average time varies, conditions of FHA debentures. BILLING CODE 4810–39–P

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Part II

Department of the Interior

Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Southwestern Willow Flycatcher; Final Rule

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DEPARTMENT OF THE INTERIOR telephone 602–242–0210; facsimile environmental consequences resulting 602–242–2513. from the proposed action of designating Fish and Wildlife Service The coordinates or plot points or both revised critical habitat for the flycatcher. from which the critical habitat maps are We announced the availability of the 50 CFR Part 17 generated are included in the draft economic analysis and draft [Docket No. FWS–R2–ES–2011–0053; administrative record for this critical environmental assessment in the 4500030114] habitat designation and are available at Federal Register on July 12, 2012 (77 FR http://www.fws.gov/southwest/es/ 41147), allowing the public to provide RIN 1018–AX43 arizona, www.regulations.gov at Docket comments on our analyses. We have No. FWS–R2–ES–2011–0053, and at the considered the comments and have Endangered and Threatened Wildlife Arizona Ecological Services Office (see completed the final economic analysis and Plants; Designation of Critical FOR FURTHER INFORMATION CONTACT). and final environmental assessment Habitat for Southwestern Willow Any additional tools or supporting concurrently with this final Flycatcher information that we may develop for determination. AGENCY: Fish and Wildlife Service, this critical habitat designation will also Peer review and public comment. We Interior. be available at the Fish and Wildlife sought comments from independent specialists to ensure that our ACTION: Final rule. Service Web site and Field Office set out above, and may also be included in the designation is based on scientifically SUMMARY: We, the U.S. Fish and preamble or at http:// sound data and analyses. We obtained Wildlife Service (Service), designate www.regulations.gov. opinions from four knowledgeable individuals with scientific expertise to revised critical habitat for the FOR FURTHER INFORMATION CONTACT: review our technical assumptions, southwestern willow flycatcher Steve Spangle, Field Supervisor, U.S. (Empidonax traillii extimus) (flycatcher) analysis, and whether or not we had Fish and Wildlife Service, Arizona used the best available information. under the Endangered Species Act. In Ecological Services Office, 2321 West total, approximately 1,975 stream These peer reviewers generally Royal Palm Rd., Suite 103, Phoenix, AZ concurred with our methods and kilometers (1,227 stream miles) are 85021; telephone 602–242–0210; being designated as critical habitat. conclusions and provided additional facsimile 602–242–2513. If you use a information, clarifications, and These areas are designated as stream telecommunications device for the deaf segments, with the lateral extent suggestions to improve this final rule. (TDD), call the Federal Information Information we received from peer including the riparian areas and streams Relay Service (FIRS) at 800–877–8339. that occur within the 100-year review is incorporated in this final SUPPLEMENTARY INFORMATION: floodplain or flood-prone areas revised designation. We also considered encompassing a total area of Executive Summary all comments and information received approximately 84,569 hectares (208,973 from the public during the comment Why we need to publish a rule. This period. acres). The critical habitat is located on is a final rule to revise the designation a combination of Federal, State, tribal, of critical habitat for the southwestern Previous Federal Actions and private lands in Inyo, Kern, Los willow flycatcher (flycatcher). Under The flycatcher was listed as Angeles, Riverside, Santa Barbara, San the Endangered Species Act (Act), any endangered under the Act (16 U.S.C. Bernardino, San Diego, and Ventura species that is determined to be an 1531 et seq.) on February 27, 1995 (60 Counties in California; Clark, Lincoln, endangered or threatened species FR 10694). On July 22, 1997, we and Nye Counties in southern Nevada; requires critical habitat to be designated, published a final critical habitat Kane, San Juan, and Washington to the maximum extent prudent and designation for the flycatcher along 964 Counties in southern Utah; Alamosa, determinable. Designations and river km (599 river mi) in Arizona, Conejos, Costilla, and La Plata Counties revisions of critical habitat can only be California, and New Mexico (62 FR in southern Colorado; Apache, Cochise, completed by issuing a rule. 39129). We published a correction Gila, Graham, Greenlee, La Paz, The revised critical habitat areas we notice on August 20, 1997, on the lateral Maricopa, Mohave, Pima, Pinal, Santa are designating in this rule constitute extent of critical habitat (62 FR 44228). Cruz, and Yavapai Counties in Arizona; our current best assessment of the areas As a result of a 1998 lawsuit from the and Catron, Grant, Hidalgo, Mora, Rio that meet the definition of flycatcher New Mexico Cattle Growers’ Arriba, Socorro, Taos, and Valencia critical habitat. In total, we are Association, on October 19, 2005 (70 FR Counties in New Mexico. The effect of designating as flycatcher critical habitat 60886), we published a revised final this regulation is to conserve the approximately 1,975 stream kilometers flycatcher critical habitat rule for flycatcher’s habitat under the (km) (1,227 stream miles (mi)) portions of Arizona, California, New Endangered Species Act. encompassing a total area of Mexico, Nevada, and Utah, totaling DATES: This rule becomes effective on approximately (84,569 hectares (ha), approximately 48,896 ha (120,824 ac) or February 4, 2013. (208,973 acres (ac)) in 24 Management 1,186 km (737 mi). River segments were ADDRESSES: This final rule is available Units. designated as critical habitat in 15 of the on the Internet at http:// We have prepared an economic 32 Management Units described in the www.regulations.gov, Docket No. FWS– analysis and environmental assessment Recovery Plan (Service 2002, p. 63). R2–ES–2011–0053. Comments and for the designation of critical habitat. In We were sued by the Center for materials received, as well as supporting order to consider economic impacts, we Biological Diversity over our 2005 documentation used in preparing this have prepared an analysis of the critical habitat rule, and on July 13, final rule, are available for public economic impacts of the critical habitat 2010, we agreed to redesignate critical inspection, by appointment, during designations and related factors. The habitat. The resulting settlement left the normal business hours, at the U.S. Fish purpose of the environmental existing critical habitat designation from and Wildlife Service, Arizona Ecological assessment, prepared pursuant to the 2005 in effect. We proposed a flycatcher Services Office, 2321 West Royal Palm National Environmental Policy Act critical habitat revision on August 15, Rd., Suite 103, Phoenix, AZ 85021; (NEPA), is to identify and disclose the 2011 (76 FR 50542), and additional

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proposal information was included in Distribution by foraging, migrating, and dispersing our July 12, 2012 (77 FR 41147), rule flycatchers for food, cover, and shelter. reopening the comment period. We The known geographical area At the time of listing, breeding sites requested and received an extension to historically occupied by migrating and in California, Nevada, Utah, and allow a final rule to be delivered to the breeding flycatchers includes southern Colorado described by Unitt (1987, pp. California, southern Nevada, southern Federal Register by December 14, 2012. 149–152) were adopted as the Utah, southern Colorado, Arizona, New subspecies’ northern boundary. Background Mexico, western Texas, and extreme However, the collection and analysis of northwestern Mexico (Hubbard 1987, genetic material across this part of the Additional background information pp. 6–10; Unitt 1987, pp. 144–152; flycatcher’s range has since refined this on the flycatcher, beyond what is Browning 1993, pp. 248, 250). The boundary (Paxton 2000, pp. 3, 18–20), provided below, can be found in the flycatcher’s current range is similar to and reduced the extent of the northern proposed revision of flycatcher critical the historical range, but the quantity of boundary of the southwestern habitat published on August 15, 2011 suitable habitat within that range is subspecies in Utah and Colorado (76 FR 50542), as well as the final reduced from historical levels (Service (Service 2002, Figure 3). Territories flycatcher critical habitat rule published 2002, pp. 7–10). Flycatchers nest within once believed to be held by in the Federal Register on October 19, the southwestern United States from southwestern willow flycatchers in Utah 2005 (70 FR 60886); our October 12, about May to September (Sogge et al. and Colorado are now more accurately 2004, proposed critical habitat rule (69 2010, p. 11). known to be occupied by a different, FR 60706); the Southwestern Willow At the time of listing in February 1995 non-listed willow flycatcher subspecies. Flycatcher Recovery Plan (Recovery (60 FR 10694), the distribution and As a result, the southwestern Plan) (Service 2002, entire); our first abundance of nesting flycatchers, their subspecies’ range only occurs in the flycatcher critical habitat designation, natural history, and areas occupied by southernmost portions of Utah and published July 22, 1997 (62 FR 39129), breeding, nonbreeding, migrating, and Colorado. This genetic work also and August 20, 1997 (62 FR 44228); the dispersing flycatchers were not well confirmed the identity of southwestern final flycatcher listing rule (60 FR known. In February 1995, 359 breeding willow flycatcher subspecies throughout 10694, February 27, 1995); the 10-year territories were known only from the rest of its range. flycatcher study in central Arizona California, Arizona, and New Mexico. The USGS has continued to collect (Paxton et al. 2007, entire); the 2007 Unitt (1987, p. 156) estimated the entire genetic information to help refine the rangewide status report (Durst et al. population was ‘‘well under a 1000 northern boundary of the subspecies’ 2008, entire); and flycatcher survey pairs, more likely 500,’’ and 230 to 500 range in Utah, Colorado, and New protocol and natural history summary breeding territories (see definition Mexico (Paxton et al. 2007a, entire). (Sogge et al. 2010, entire). Other reports below) were estimated to exist in the They reconfirmed the genetic markers can be retrieved from the U.S. July 23, 1993, flycatcher listing proposal that identify differences among Geological Survey’s (USGS) flycatcher (58 FR 39495, p. 39498). flycatcher subspecies, with breeding sites clustering into two groups site at http://sbsc.wr.usgs.gov/cprs/ At the end of 2007, 1,299 flycatcher separated approximately along the research/projects/swwf. breeding territories were estimated to currently recognized boundary; occur throughout southern California, Taxonomy however, they noted a distinct genetic southern Nevada, southern Utah, boundary line between the subspecies The flycatcher, from the taxonomic southern Colorado, Arizona, and New order Passeriformes, is one of four does not exist (Paxton et al. 2007a, p. Mexico (Durst et al. 2008, p. 4). Some 17). Instead of a distinct boundary, they subspecies of the willow flycatcher of the flycatcher breeding sites (see suggested that the boundary should be currently recognized (Hubbard 1987, pp. definition below) having the highest thought of as a ‘‘region of genetic 3–6; Unitt 1987, pp. 137–144), although number of territories are found along the overlap’’ (Paxton et al. 2007a, p. 17). Browning (1993, p. 248) suggests a middle Rio Grande and upper Gila River They also described that this genetic possible fifth subspecies (Empidonax in New Mexico, and Roosevelt Lake and overlap region will likely widen and traillii campestris) in the central and the San Pedro and Gila River confluence contract over time based upon habitat midwestern United States. area in central Arizona. changes (Paxton et al. 2007a, p. 17). An Species Description A breeding site is simply an area additional complication in refining the along the river that has been described subspecies’ northern boundary is that The flycatcher is a small, insect-eating while surveying for flycatcher territories this region is sparsely populated with generalist (Service 2002, p. 26), (Service 2002, p. C–4; Sogge et al. 2010, breeding flycatchers, and therefore only neotropical migrant bird. It grows to p. 34). A breeding site can contain none, minimal information is available that about 15 centimeters (5.8 inches) in only one, or many territories. However, would help narrow down the location of length. It eats a wide range of within this final rule, we refer to a boundary (Paxton et al. 2007a, p.16). invertebrate prey including flying, and breeding sites as areas where flycatcher We continue to seek out territories and ground- and vegetation-dwelling, insect territories were detected. A territory is collect genetic samples to further our species of terrestrial and aquatic origins defined as a discrete area defended by understanding of this area, but we (Drost et al. 2003, pp. 96–102). The a single flycatcher or pair of flycatchers currently recognize the northern flycatcher spends the winter in within a single breeding season (Sogge geographic boundary of the flycatcher as locations such as southern Mexico, et al. 2010, p. 34). The territory is described in the Recovery Plan (Service Central America, and probably South usually evidenced by the presence of a 2002, Figures 3, 4). America (Ridgely and Gwynne 1989, p. singing male, and possibly one or more All willow flycatcher subspecies 303; Stiles and Skutch 1989, pp. 321– mates (Sogge et al. 2010, p. 34). When spend time migrating in the United 322; Howell and Webb 1995, pp. 496– we discuss locations occupied by States from April to June and from July 497; Unitt 1997, pp. 70–73; flycatchers, those are locations not just through September. Willow flycatchers, Koronkiewicz et al. 1998, p. 12; Unitt of those areas used as breeding like most small, migratory, insect-eating 1999, p. 14). territories, but also of those areas used birds, require food-rich stopover areas

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in order to replenish energy reserves Life History moving from the Basin and Mojave and continue their northward or Flycatchers are believed to exist and Recovery Units to the Lower Colorado southward migration (Finch et al. 2000, interact as groups of metapopulations Recovery Unit and from the Lower pp. 71, 78, and 79; Service 2002, pp. E– (Service 2002, p. 72). A metapopulation Colorado Recovery Unit to the Gila 3, 42). Migration stopover areas are is a group of geographically separate Recovery Unit. The USGS assimilated all of the likely critically important for flycatcher flycatcher breeding populations flycatcher movement information and productivity and survival (Sogge et al. connected to each other by immigration concluded that rapid colonization and 1997, p. 13; Yong and Finch 1997, p. and emigration (Service 2002, p. 72). increased metapopulation stability 253; Service 2002, pp. E–3, 19). Flycatcher populations are most stable could be accomplished by establishing where many connected sites or large Habitat breeding sites within 30 to 40 km (18 to populations exist (Service 2002, p. 72). 25 mi) of each other (Paxton et al. 2007, Metapopulation persistence or stability The flycatcher currently breeds in p. 4). Flycatchers at breeding sites areas from near sea level to over 2,600 is more likely to improve by adding configured in this way would be able to meters (m) (8,500 feet (ft)) (Durst et al. more breeding sites rather than adding regularly disperse to new breeding sites 2008, p. 14) in vegetation alongside more territories to existing sites (Service or move between known breeding sites rivers, streams, or other wetlands 2002, p. 72). This would distribute birds within the same year or from year-to- (riparian habitat). It establishes nesting across a greater geographical range, year. This proximity of sites would territories, builds nests, and forages minimize risk of simultaneous increase the connectivity and stability of where mosaics of relatively dense and catastrophic population loss, and avoid the metapopulation and smaller, more expansive growths of trees and shrubs genetic isolation (Service 2002, p. 72). distant breeding sites. are established, near or adjacent to Flycatchers have higher site fidelity surface water or underlain by saturated (to a local area) than nest fidelity (to a Recovery Planning soil (Sogge et al. 2010, p. 4). Habitat specific nest location) and can move Because the breeding range of the characteristics such as dominant plant among sites within stream drainages flycatcher encompasses a broad species, size and shape of habitat patch, and between drainages (Kenwood and geographic area with much site tree canopy structure, vegetation height, Paxton 2001, pp. 29–31). Within- variation, the Recovery Plan divides the and vegetation density vary widely drainage movements are more common flycatcher’s range into six Recovery among breeding sites. Nests are than between-drainage movements Units, each of which are further typically placed in trees where the plant (Kenwood and Paxton 2001, p. 18). subdivided into four to seven growth is most dense, where trees and Juvenile flycatchers were the group of Management Units (for a total of 32 shrubs have vegetation near ground flycatchers that moved (dispersed) the Management Units) (Service 2002, pp. level, and where there is a low-density farthest to new and distant breeding 61–63). This provides an organizational canopy. Some of the more common tree sites from the area where they hatched strategy to ‘‘characterize flycatcher and shrub species currently known to (Paxton et al. 2007, p. 74). The USGS’s populations, structure recovery goals, comprise nesting habitat include 10-year flycatcher study in central and facilitate effective recovery actions Gooddings willow (Salix gooddingii), Arizona (Paxton et al. 2007, entire) is that should closely parallel the physical, coyote willow (Salix exigua), Geyer’s the key movement study that has biological, and logistical realities on the willow (Salix geyeriana), arroyo willow generated these conclusions, augmented ground’’ (Service 2002, p. 61). Recovery (Salix lasiolepis), red willow (Salix by other flycatcher banding and re- Units are defined based on large laevigata), yewleaf willow (Salix sighting studies (Sedgwick 2004, p. watershed and hydrologic units. Within taxifolia), boxelder (Acer negundo), 1103; McLeod et al. 2008, p. 110). each Recovery Unit, Management Units tamarisk (also known as saltcedar, The difference in flycatcher dispersal are based on watershed or major Tamarix ramosissima), and Russian distance among different study areas drainage boundaries at the Hydrologic and regions reflects the varying spatial olive (Elaeagnus angustifolia) (Service Unit Code Cataloging Unit level arrangement of breeding habitat, 2002, p. D–2). While there are (standard watershed boundaries which illustrating how dispersal tendencies are exceptions, generally flycatchers are not have already been defined for other influenced by the geographic found nesting in areas without willows, purposes). The ‘‘outer’’ boundaries of distribution of habitat at the stream some Recovery Units and Management tamarisk, or both. segment, drainage, and landscape scales Units were defined by the flycatcher’s Use of riparian habitats along major (Paxton et al. 2007, p. 75). While range boundaries. Recovery goals are drainages in the Southwest during USGS’s study focused its effort in recommended for 29 of the 32 migration has been documented (Sogge central Arizona at two of the largest Management Units, and this designation et al. 1997, pp. 3–4; Yong and Finch breeding sites, it also included multiple of critical habitat is organized 1997, p. 253; Johnson and O’Brien 1998, auxiliary sites (up to 444 km (275 mi) geographically within these Recovery p. 2; McKernan and Braden 1999, p. 17; away), along with other researchers and Units and Management Units (see Koronkiewicz et al. 2004, pp. 9–11). surveyors across the flycatcher’s range ‘‘Methodology Overview’’ section Many of the willow flycatchers found paying attention to whether flycatchers below). migrating are detected in riparian were banded or not. As a result, the The Service’s 2002 Recovery Plan habitats or patches (small areas of broad scope of the study of flycatcher provides reasonable actions riparian vegetation) that would be movement extends broadly beyond a recommended to recover the flycatcher unsuitable for nest placement (the localized, regional area, where habitat and provides two criteria, either of vegetation structure is too short or configuration dominates the results. which can be met, in order to consider sparse, or the patch of vegetation is too Banded flycatchers from season to downlisting the species to threatened small). In these drainages, migrating season (and sometimes within season) (Service 2002, pp. 77–78). The first flycatchers may use a variety of riparian were recorded moving from 50 m (150 alternative for downlisting requires habitats, including ones dominated by feet) to 444 km (275 mi) to try to nest. reaching a total population of 1,500 native or exotic plant species, or Some long-distance season-to-season flycatcher territories geographically mixtures of both (Service 2002, p. E–3). movement records captured flycatchers distributed among all Recovery Units

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and maintained for 3 years with habitat Summary of Changes From Proposed areas total approximately 900.2 ha protections (Service 2002, pp. 77–78). Rule (2,224.5 ac), and they do not represent Habitat protections include a variety of In developing the final revised areas that currently have or can develop options such as habitat conservation flycatcher critical habitat designation, flycatcher habitat. As a result, we plans (HCPs), conservation easements, we reviewed public comments received determined that these locations were or safe harbor agreements. The second on the proposed August 15, 2011 (76 FR not essential for flycatcher conservation alternative approach for downlisting 50542), revision to critical habitat and and do not include them in this final calls for reaching a population of 1,950 the draft economic analysis, draft revised critical habitat designation. (4) In Arizona, in response to territories also strategically distributed environmental assessment, and comments, we reevaluated information among all Recovery and Management proposed revisions document made through maps, reports, and site-specific Units for 5 years without additional available to the public published on July knowledge about the proposed segments habitat protection (Service 2002, pp. 77– 12, 2012 (77 FR 41147). We also of the San Francisco River in the San 78). conducted further evaluation of lands Francisco Management Unit (76 FR In order to delist this flycatcher proposed as critical habitat; refined our 50542, August 15, 2011, p. 50576). This subspecies (to remove it from the List of mapping methodologies; and excluded evaluation resulted in determining that Endangered and Threatened Wildlife), areas from the final designation a 2.7-km (1.7-mi) segment of the San the Recovery Plan recommends that a pursuant to section 4(b)(2) of the Act (16 Francisco River at Luna Lake, Arizona, minimum of 1,950 territories are U.S.C. 1531 et seq.). We are making the which we proposed for designation, following changes to the final rule from geographically distributed among all does not contain the essential physical the proposed August 15, 2011, revision Recovery and Management Units, and or biological features of flycatcher and subsequent July 12, 2012, that twice the amount of habitat is habitat, and it does not appear to have document. provided to maintain these territories the ability to develop into flycatcher over time. Second, these habitats must Proposed Areas Removed From Final nesting habitat. The habitat surrounding be protected from threats to assure Designation Luna Lake is comprised of cattails and maintenance of these populations and meadow grasses, and a narrow section (1) We excluded a number of river of stream downstream from the lake habitat for the foreseeable future segments and reservoir bottoms under through development and primarily consists of conifers. As a section 4(b)(2) of the Act that we result, we determined that this portion implementation of conservation identified as being considered for of the San Francisco River was not management agreements (Service 2002, exclusion in the proposed rule (see essential for flycatcher conservation and pp. 79–80). Third, all of these delisting Exclusions section below). In this final do not include it in this final revised criteria must be accomplished and their rule, we did not exclude every area that critical habitat designation. effectiveness demonstrated for a period was identified in the proposed rule as (5) In Arizona, in response to of 5 years (Service 2002, pp. 79–80). being considered for exclusion. For a comments, we reevaluated This critical habitat designation is complete discussion and analysis of approximately 6.8 ha (16.8 ac) of land structured to allow the Service to work areas excluded and an explanation of within the proposed segment along toward achieving the numerical, the basis for exclusion see the Pinal Creek, representing about 4 geographical, and habitat-related Exclusions section. This is the primary percent of the land outside of the recovery goals. source of reduction in the total Freeport McMoRan (FMC) administered Twice the amount of suitable habitat designated critical habitat area Pinal Creek Management Area. These is needed to support the numerical compared to what we identified in the lands are located primarily at the proposal. territory goals because the long-term perimeter of the floodplain and end of (2) In California, based on information persistence of flycatcher populations the proposed segment. Because of their received from public comments, we cannot be assured by protecting only placement, these lands provide limited reviewed maps and reports and those habitats in which flycatchers value for the flycatcher outside of the reevaluated Little Tujunga Creek in the currently breed (Service 2002, p. 80). It conservation area. As a result, we Santa Clara Management Unit. We determined that these disconnected is important to recognize that most discovered that the 2.2-km (1.4-mi) flycatcher breeding habitats are portions of the Pinal Creek floodplain segment of the Little Tujunga Creek is were not essential for flycatcher susceptible to future changes in site not essential for the flycatcher because conservation and do not include them hydrology (natural or human-related), it provides minimal habitat, in this final revised critical habitat human impacts such as development or metapopulation stability, and designation. fire, and natural catastrophic events prevention against catastrophic loss. As (6) In Nevada, we reevaluated the such as flood or drought (Service 2002, a result, we determined that it was not 17.3-km (10.8-mi) stream and other p. 80). Furthermore, as the vegetation at essential for flycatcher conservation and bodies of water in Pahranagat Valley sites matures, it can lose the structural did not include it in this final revised (hereinafter referred to as the Pahranagat characteristics that make it suitable for critical habitat designation. River in this final rule) proposed in the breeding flycatchers (Service 2002, p. (3) In California, we reevaluated Pahranagat National Wildlife Refuge 80). These and other factors can destroy mapped information and proposed (NWR) in the Pahranagat Management or degrade breeding sites, such that one critical habitat along the Santa Ana Unit (76 FR 50542, August 15, 2011, p. cannot expect any given breeding site to River within the Prado Basin in the 50570). Based on our reevaluation, we remain suitable in perpetuity (Service Santa Ana Management Unit (76 FR determined that the southern 13.7 km 2002, p. 80). Thus, it is necessary to 50542, August 15, 2011, pp. 50563– (8.5 mi) of this segment is not essential have additional suitable habitat 50564). We detected, through additional for flycatcher conservation. The habitat available to which flycatchers can analysis, several groundwater recharge along this segment consists of open readily move if displaced by such ponds and areas at, or below, the 154- water, marsh, wet meadow, alkali flats, habitat loss or change (Service 2002, p. m (505-ft) elevation line that will be and upland salt desert shrub. The water 80). subject to regular inundation. These along this segment is standing, is

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ephemeral, or has been channelized in land interspersed with Southern Ute portion meets the quantity of habitat ditches. These areas do not currently tribal land along the Los Pinos River and territories identified as essential for consist of riparian tree and shrub within the San Juan Management Unit this Management Unit (refer to our species and are unlikely to develop the that, upon further analysis, we do not Criteria Used To Identify Critical necessary vegetation for flycatcher consider critical habitat because they Habitat section). Therefore, we are not habitat in the future. As a result, we are not essential for flycatcher including this portion in the designation determined that these locations were conservation. At the perimeter of for this Management Unit. not essential for flycatcher conservation Southern Ute tribal lands along the Los More specifically, although the and do not include it in this final Pinos River, but outside of tribal segment contains some elements of the revised critical habitat designation. jurisdiction, are collectively about 2.7 physical or biological features of (7) In Nevada, within the Pahranagat intermittent river km (1.7 mi) of private flycatcher habitat along the reservoir Management Unit, we inaccurately lands. Additionally, at the southern end edge, the habitat features in the described the Key Pittman Wildlife Area of the Southern Ute Reservation, downstream portion are not essential to as a 6.3-km (3.9-mi) single stream approximately 1.2 km (0.8 mi) or less of flycatcher conservation because the segment along the Pahranagat River (76 scattered private land parcels occur. number of flycatcher territories and FR 50542, August 15, 2011, p. 50570) Individually, these parcels are at the amount of habitat in the farther and also inaccurately described the area perimeter of the floodplain, are small in upstream portion of this segment have we were considering for exclusion, size, and are not contiguous. already far exceeded the recovery goals under section 4(b)(2) of the Act, as a Collectively, they represent a small for this Management Unit. The recovery single 4.0-km (2.5-mi) segment (76 FR fraction of the area we considered for goals in this Management Unit are for 50542, p. 50583). The Key Pittman critical habitat along the Los Pinos 100 flycatcher territories, and the most Wildlife Area is more accurately River. As result of their small size and recent survey data from 2012 found 327 described as being comprised of two limited extent of habitat, we do not territories in this management unit separate stream segments, one 2.5 km consider these segments essential to (USBR 2012, p. 1). Only 33 of these (1.6 mi) long and the other 1.4 km (0.9 flycatcher conservation and do not territories occurred in the downstream mi) long. Between these two portions of include them in this final revised portion along Elephant Butte Reservoir. the Key Pittman Wildlife Area is a 2.4- critical habitat designation. Therefore, the upstream portion of the km (1.5-mi) segment of private land, (10) In Colorado, there are five small proposed segment within Socorro which consists of agricultural fields, parcels of BLM land on the Rio Grande County has about three times more and limited water and riparian habitat. in the San Luis Valley Management Unit flycatcher territories than the recovery Therefore, because of the lack of both that were included in the proposed goals for this management unit. As a flycatcher habitat and likelihood of critical habitat. The farthest upstream result, the lower portion of this segment, developing flycatcher habitat in the section is west of Del Norte and is 300 where reservoir inundation is more future, this area between the separate m (980 feet) long. The other four parcels likely, and flycatcher habitat may be portions of the Key Pittman Wildlife are south of Alamosa NWR near the less persistent over time, is not needed Area should not have been identified as Conejos and Costilla County border. The to reach recovery goals in this an essential area for flycatcher boundary of the first parcel does not management unit. This is consistent conservation, and we do not include it intersect with the river but is within the with other areas (such as the Roosevelt in our final critical habitat designation. lateral extent of proposed critical habitat Management Unit) where we used the We are excluding the two stream and constitutes 3.73 ha (9.21 ac). The numerical and habitat-related recovery segments on Key Pittman Wildlife Area second parcel is 135 m (443 feet) long. goals from the Recovery Plan, along under section 4(b)(2) of the Act (see The third parcel is 0.96 km (0.59 mi) with the current and previous number Exclusions section). long. The boundary of the fourth parcel of known flycatcher territories, to guide (8) In Colorado, we reevaluated also does not intersect the river but is the endpoints of critical habitat information about the habitat on the Los within the lateral extent of proposed segments along areas with large Pinos River in the San Juan critical habitat and constitutes 2.77 ha populations (see ‘‘Methodology Management Unit (76 FR 50542, August (6.85 ac). Because these five small, Overview,’’ ‘‘Areas with Large 15, 2011, p. 50571) through maps, scattered, and limited sections of habitat Populations’’). As a result, we have reports, and site visits (Ireland T. 2012, are not essential to flycatcher recovery, determined this downstream 31.4 km entire). We found that the northern 9.1- we do not include them in this final (19.5 mi) portion of the Rio Grande in km (5.6-mi) portion of the Los Pinos revised critical habitat designation. Elephant Butte Reservoir does not meet River is at a high elevation, with a steep (11) In New Mexico, in response to our criteria for, and, therefore, the stream slope, and the vegetation comments, we reevaluated information definition of, critical habitat for the composition is not consistent with about the Elephant Butte Reservoir flycatcher, and we have removed it from flycatcher habitat. The plant species portion of the proposed 211.8-km-km our final critical habitat designation. adjacent to this stream are mostly (131.6-mi) Rio Grande segment in the comprised of those not used by nesting Middle Rio Grande Management Unit Other Changes flycatchers (such as alders and conifers). (76 FR 50542, August 15, 2011). This (12) In California, after further Therefore, this segment does not evaluation resulted in our determination analysis of maps and using information currently consist of the riparian tree and that the downstream 31.4 km (19.5 mi) received during comments, we have shrub species used by flycatchers, and of the proposed segment within the made three revisions to the approximate it is unlikely to develop them in the active conservation pool of Elephant stream lengths along tribal lands within future. As a result, we determined that Butte Reservoir is not critical habitat. the San Diego Management Unit. These this portion of the Los Pinos River was The 31.4 km (19.5 mi) downstream lands were subsequently excluded from not essential for flycatcher conservation, portion of the proposed segment that is our final designation under section and do not include it in this final within the active storage pool of 4(b)(2) of the Act (see Exclusions revised critical habitat designation. Elephant Butte Reservoir is not section). (9) In Colorado, there is a collection necessary for the conservation of We incorrectly described the length of of checker-boarded parcels of private flycatcher, as the Unit without this the San Diego River occurring along the

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Barona Group of Capitan Grande Band within the San Diego Management Unit in length that was represented as a of Mission Indians of the Barona (76 FR 50542, August 15, 2011, p. lateral extent of the Conejos River in Reservation, California and the Viejas 50565). The upper San Ysabel River this final critical habitat designation. (Baron Long) Group of Capitan Grande segment that is contiguous with This area included a portion of the Rio Mission Indians of the Viejas Temescal Creek should more accurately Grande National Forest in addition to Reservation, California, as 4.7 km (2.9 be described as 8.7-km (5.4-mi) segment, private land. mi) (76 FR 50542, August 15, 2011, p. not the 9.8-km (6.1-mi) segment (21) While mapping the lateral extent 55082). We have corrected the distance described in our proposal. of critical habitat, some side drainages, to 0.9 km (0.6 mi) along the San Diego (16) In California, we inaccurately tributaries, or washes were included River, consisting of approximately 9.0 described the length of a proposed within our electronic maps that extend ha (22 ac) to accurately reflect tribal segment of the Can˜ ada Gobernadora beyond the confluence of the streams ownership of these lands being Creek within the San Diego we described in the proposal. These excluded under section 4(b)(2) of the Management Unit (76 FR 50542, August areas sometimes extended well beyond Act (see Exclusions section). 15, 2011, p. 50565). The mapped the reasonable confluence area, We incorrectly described the length of Can˜ ada Gobernadora Creek segment sometimes about 3 km (1.9 mi) up a the San Luis Rey River occurring along inadvertently included a portion of San tributary. For example, portions of San the tribal lands of the Pala Band of Juan Creek. As a result, the portion of Juan or San Francisquito Creeks in Luisen˜ o Mission Indians, California, as San Juan Creek is not included in this California, or West Clear Creek and 3.7 km (2.3 mi) (76 FR 50542, August designation, and our Can˜ ada Beaver Creek in Arizona, occurred on 15, 2011, p. 55082). We have corrected Gobernadora Creek segment is now our electronic maps. We did not the distance to 8.3 km (5.2 mi) along the more accurately a 4.7-km (2.9-mi) describe these segments in the text of San Luis Rey River, to accurately reflect segment, not the 5.9-km (3.7-mi) the proposed rule, because they were tribal ownership of these lands being segment described in our proposal. not intended to be part of our proposal. excluded under section 4(b)(2) of the (17) In Arizona, while we identified We have truncated these segments to the Act (see Exclusions section). San Carlos Apache tribal lands as areas best of our ability in the final critical We incorrectly described the length of we were considering for exclusion habitat maps, so only those habitats on the San Luis Rey River occurring along under section 4(b)(2) of the Act, we the rivers described are included in the the tribal lands of the Rincon Band of received new information about parcels final designation. The removal of these Luisen˜ o Mission Indians, California, as of San Carlos Apache tribal lands along segments resulted in an overall minor 2.4 km (1.5 mi) (76 FR 50542, August the lower San Pedro River between the reduction in the amount of critical 15, 2011, p. 55082). We have corrected Aravaipa Creek and Gila River habitat. the distance to 4.3 km (2.7 mi) along the confluence, totaling about 1.0 km (0.6 (22) While mapping the lengths of San Luis Rey River, to accurately reflect mi) and 75 ha (185 ha). Subsequently, stream segments electronically, the tribal ownership of these lands being we have included these separate parcels results can vary as GIS programs excluded under section 4(b)(2) of the in our exclusion analysis, and are attempt to account for the bends and Act (see Exclusions section). excluding them under section 4(b)(2) of turns along a stream. Additionally, the (13) In California, we inadvertently the Act (see Exclusions section). irregular shape of properties and the did not include the Pala Band of (18) In New Mexico, we inaccurately exclusion or revision of segments Luisen˜ o Mission Indians’ tribal fee identified and mapped the location of caused challenges in trying to accurately lands, currently being brought into trust, Navajo Nation (Ramah Navajo) as just describe a length of a stream segment. for exclusion from the revised critical south of Zuni Pueblo. The most Even when the end points of a segment habitat designation under section downstream portion of the Zuni River is did not change, as we continued to (4)(b)(2) of the Act. Subsequently, we not on Navajo Nation (Ramah Navajo) reassess and recalculate stream lengths received information from them lands, but more accurately part of Zuni and round to the nearest tenth, a change explaining where these fee lands are Pueblo. This portion of the Zuni River in a few tenths of a kilometer or mile located, have included them in our on Zuni Pueblo is excluded from this sometimes occurred. Therefore, there is exclusion analysis, and are excluding final revised designation of critical expected to be some minor change in them under section 4(b)(2) of the Act habitat under section 4(b)(2) of the Act stream lengths between our proposal (see Exclusions section). (see Exclusions section). and this final rule. (14) In California, we inaccurately (19) In New Mexico, we inaccurately (23) Although we attempted to described the length of a proposed described the length of a proposed remove as many developed areas as segment of the Santa Ynez River within segment of the Gila River within the possible (areas that have no the Santa Ynez Management Unit Upper Gila Management Unit (76 FR conservation value as flycatcher habitat) within the unit description portion of 50542, August 15, 2011, p. 50574). The before publishing the proposed rule, we our proposed rule (76 FR 50542, August Gila River segment from the were not able to eliminate all developed 15, 2011, p. 50563). However, we downstream end of the Middle Gila Box areas. Since publication of the proposed correctly described the end points on Canyon near the Town of Red Rock rule and the receipt of more accurate the maps within the Federal Register downstream across the Arizona State mapping data and information, we were notice and maps and electronic maps line through the Town of Duncan, able to further refine the designation, provided on the Internet and at http:// Arizona, should more accurately be which has resulted in a more precise www.regulations.gov. The lower Santa described as 65.3-km (40.6-mi) segment, delineation of habitat containing the Ynez River segment above Vandenberg not the 62.2-km (38.7-mi) segment physical or biological features necessary Air Force Base should more accurately described in our proposal. to support flycatcher life-history be described as 42.3-km (26.3-mi) (20) In Colorado, we included an area requirements. This resulted in a minor segment, not the 27.6-km (17.2-mi) within our electronic map of the reduction for some segments from the segment described in our proposal. proposed rule along the Conejos River amounts of critical habitat published in (15) In California, we inaccurately that was an error. As a result of the proposed rule. However, it is not described the length of a proposed correcting that error, we are not possible to remove each and every one segment of the Santa Ysabel River including an area about 1.6 km (1 mi) of these developed areas even at the

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refined mapping scale used; therefore, Federal landowners. Where a landowner (published in the Federal Register on the maps of the designation may contain requests Federal agency funding or July 1, 1994 (59 FR 34271)), the areas that do not contain the physical or authorization for an action that may Information Quality Act (section 515 of biological features necessary for the affect a listed species or critical habitat, the Treasury and General Government flycatcher. These areas, which include the consultation requirements of section Appropriations Act for Fiscal Year 2001 locations such as roads, cement pads, 7(a)(2) of the Act would apply, but even (Pub. L. 106–554; H.R. 5658)), and our utility substations, agricultural fields, in the event of a destruction or adverse associated Information Quality housing, etc., are not critical habitat and modification finding, the obligation of Guidelines, provide criteria, establish are therefore excluded by text in this the Federal action agency and the procedures, and provide guidance to final rule. landowner is not to restore or recover ensure that our decisions are based on the species, but to implement the best scientific data available. They Critical Habitat reasonable and prudent alternatives to require our biologists, to the extent Background avoid destruction or adverse consistent with the Act and with the use modification of critical habitat. of the best scientific data available, to Critical habitat is defined in section 3 Under the first prong of the Act’s use primary and original sources of of the Act as: definition of critical habitat, areas information as the basis for (1) The specific areas within the within the geographical area occupied recommendations to designate critical geographical area occupied by the by the species at the time it was listed habitat. species, at the time it is listed in are included in a critical habitat When we are determining which areas accordance with the Act, on which are designation if they contain physical or should be designated as critical habitat, found those physical or biological biological features (1) which are our primary source of information is features: essential to the conservation of the generally the information developed (a) Essential to the conservation of the species and (2) which may require during the listing process for the species, and special management considerations or species. Additional information sources (b) Which may require special protection. For these areas, critical may include the recovery plan for the management considerations or habitat designations identify, to the species, articles in peer-reviewed protection; and extent known using the best scientific journals, conservation plans developed (2) Specific areas outside the and commercial data available, those by States and counties, scientific status geographical area occupied by the physical or biological features that are surveys and studies, biological species at the time it is listed, upon a essential to the conservation of the assessments, other unpublished determination that such areas are species (such as space, food, cover, and materials, or experts’ opinions or essential for the conservation of the protected habitat). In identifying those personal knowledge. species. physical and biological features within Habitat is dynamic, and species may Conservation, as defined under an area, we focus on the principal move from one area to another over section 3 of the Act, means to use and biological or physical constituent time. This is particularly true for the the use of all methods and procedures elements (primary constituent elements flycatcher because its riparian that are necessary to bring an such as roost sites, nesting grounds, vegetation it uses is prone to alteration endangered or threatened species to the seasonal wetlands, water quality, tide, and regrowth from periodic disturbance, point at which the measures provided soil type) that are essential to the such as flooding. We recognize that pursuant to the Act are no longer conservation of the species. Primary critical habitat designated at a particular necessary. Such methods and constituent elements are those specific point in time may not include all of the procedures include, but are not limited elements of the physical or biological habitat areas that we may later to, all activities associated with features that provide for a species’ life- determine are necessary for the recovery scientific resources management such as history processes and are essential to of the species. For these reasons, a research, census, law enforcement, the conservation of the species. critical habitat designation does not habitat acquisition and maintenance, Under the second prong of the Act’s signal that habitat outside the propagation, live trapping, and definition of critical habitat, we can designated area is unimportant or may transplantation, and, in the designate critical habitat in areas not be needed for recovery of the extraordinary case where population outside the geographical area occupied species. Areas that are important to the pressures within a given ecosystem by the species at the time it is listed, conservation of the species, both inside cannot be otherwise relieved, may upon a determination that such areas and outside the critical habitat include regulated taking. are essential for the conservation of the designation, will continue to be subject Critical habitat receives protection species. For example, an area currently to: (1) Conservation actions under section 7 of the Act through the occupied by the species but that was not implemented under section 7(a)(1) of requirement that Federal agencies occupied at the time of listing may be the Act; (2) regulatory protections ensure, in consultation with the Service, essential to the conservation of the afforded by the requirement in section that any action they authorize, fund, or species and may be included in the 7(a)(2) of the Act for Federal agencies to carry out is not likely to result in the critical habitat designation. We insure their actions are not likely to destruction or adverse modification of designate critical habitat in areas jeopardize the continued existence of critical habitat. The designation of outside the geographical area occupied any endangered or threatened species; critical habitat does not affect land by a species only when a designation and (3) section 9 of the Act’s ownership or establish a refuge, limited to its range would be inadequate prohibitions on taking any individual of wilderness, reserve, preserve, or other to ensure the conservation of the the species, including taking caused by conservation area. Such designation species. actions that affect habitat. Federally does not allow the government or public Section 4 of the Act requires that we funded or permitted projects affecting to access private lands. Such designate critical habitat on the basis of listed species outside their designated designation does not require the best scientific and commercial data critical habitat areas may still result in implementation of restoration, recovery, available. Further, our Policy on jeopardy findings in some cases. These or enhancement measures by non- Information Standards Under the Act protections and conservation tools will

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continue to contribute to recovery of of this subspecies were determined from plant growth, which form the this species. Similarly, critical habitat studies of flycatcher behavior and environment essential to flycatcher designations made on the basis of the habitat use throughout the bird’s range conservation. best available information at the time of (see Background section). The hydrologic regime (stream flow designation will not control the In general, the physical or biological pattern) and supply of (and interaction direction and substance of future features of critical habitat for nesting between) surface and subsurface water recovery plans, HCPs, or other species flycatchers are found in the riparian is a driving factor in the long-term conservation planning efforts if new areas within the 100-year floodplain or maintenance, growth, recycling, and information available at the time of flood-prone area. Flycatchers use regeneration of flycatcher habitat these planning efforts calls for a riparian habitat for feeding, sheltering, (Service 2002, p. 16). As streams reach different outcome. and cover while breeding, migrating, the lowlands, their gradients typically and dispersing. It is important to Physical or Biological Features flatten and surrounding terrain opens recognize that flycatcher habitat is into broader floodplains (Service 2002, In accordance with section 3(5)(A)(i) ephemeral in its presence, and its p. 32). In these geographic settings, the and 4(b)(1)(A) of the Act and regulations distribution is dynamic in nature stream-flow patterns (frequency, at 50 CFR 424.12, in determining which because riparian vegetation is prone to magnitude, duration, and timing) will areas within the geographical area periodic disturbance (such as flooding) provide the necessary stream-channel occupied by the species at the time of (Service 2002, p. 17). Even with the conditions (wide configuration, high listing to designate as critical habitat, dynamic shifts in habitat conditions, sediment deposition, periodic we consider the physical or biological one or more of the primary constituent inundation, recharged aquifers, lateral features essential to the conservation of elements described below are found channel movement, and elevated the species and which may require throughout each of the units that we are groundwater tables throughout the special management considerations or designating as critical habitat. floodplain) that result in the Flycatcher habitat may become protection. These include, but are not development of flycatcher habitat (Poff unsuitable for breeding through limited to: et al. 1997, pp. 770–772; Service 2002, maturation or disturbance of the (1) Space for individual and p. 16). Allowing the river to flow over riparian vegetation, but it may remain population growth and for normal the width of the floodplain, when suitable for use during migration or for behavior; overbank flooding occurs, is integral to (2) Food, water, air, light, minerals, or foraging. This situation may be only allow deposition of fine moist soils, other nutritional or physiological temporary, and vegetation may cycle water, nutrients, and seeds that provide requirements; back into suitability as breeding habitat the essential material for plant (3) Cover or shelter; (Service 2002, p. 17). Therefore, it is not (4) Sites for breeding, reproduction, or practical to assume that any given germination and growth. An abundance rearing (or development) of offspring; breeding habitat area will remain and distribution of fine sediments and suitable over the long term or persist in extending farther laterally across the (5) Habitats that are protected from the same location (Service 2002, p. 17). floodplain and deeper underneath the disturbance or are representative of the Over a 5-year period, flycatcher habitat surface retains much more subsurface historical, geographical, and ecological can, in optimum conditions, germinate, water, which in turn supplies water for distributions of a species. be used for migration or foraging, the development of the vegetation that We derive the specific physical or continue to grow, and eventually be provides flycatcher habitat and micro- biological features essential for the used for nesting. Thus, flycatcher habitat conditions (Service 2002, p. 16). flycatcher from studies of this species’ habitat that is not currently suitable for The interconnected interaction between habitat, ecology, and life history as nesting at a specific time, but is useful groundwater and surface water described below. Additional for foraging and migration, can still be contributes to the quality of riparian information can be found in the final important for flycatcher conservation. vegetation community (structure and listing rule published in the Federal Feeding sites and migration stopover plant species) and will influence the Register on February 27, 1995 (60 FR areas are important components for the germination, density, vigor, 10694), and the Flycatcher Recovery flycatcher’s survival, productivity, and composition, and the ability of Plan (Service 2002, entire), Survey health, and they can also be areas where vegetation to regenerate and maintain Protocol and Natural History Summary new breeding habitat develops as itself (Arizona Department of Water (Sogge et al. 2010, entire), and the 10- nesting sites are lost or degraded Resources 1994, pp. 31–32). year central Arizona ecology study (Service 2002, p. 42). These In many instances, flycatcher (Paxton et al. 2007, entire). successional cycles of habitat change are breeding sites occur along streams In general, the areas designated as important for long-term persistence of where human impacts are minimized critical habitat are designed to provide flycatcher habitat. enough to allow more natural processes sufficient riparian habitat for breeding, Based on our current knowledge of to create, recycle, and maintain non-breeding, territorial, dispersing, and the life history and ecology of the flycatcher habitat. However, there are migrating flycatchers in order to reach flycatcher and the relationship of its also breeding sites that are supported by the geographic distribution, abundance, life-history functions to its habitat, as various types of supplemental water and habitat-related recovery goals summarized in the Background section including agricultural and urban run- described in the Recovery Plan (Service above and in more detail in the off, treated water outflow, irrigation or 2002, pp. 77–85). We are not Recovery Plan (Service 2002, Chapter diversion ditches, reservoirs, and dam designating any areas as critical habitat II), it is important to recognize the outflows (Service 2002, p. D–15). solely because they serve as a migration interconnected nature of the physical or Although the waters provided to these habitat. Instead, the areas we are biological features that provide the habitats might be considered designating serve a variety of functions, primary constituent elements of critical ‘‘artificial,’’ they are often important for including habitat to be used by habitat. Specifically, we consider the maintaining the habitat in appropriate migrating flycatchers. The habitat relationships between river function, condition for breeding flycatchers components important for conservation hydrology, floodplains, aquifers, and within the existing environment.

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In considering the specific physical or incidence of extreme high sea level extreme drought of 2002 caused near biological features essential for (excludes tsunamis), intense tropical complete reproductive failure of the 146 flycatcher conservation, it is also cyclone activity, and the area affected flycatcher territories at Roosevelt Lake important to consider longer-term by droughts in various regions of the in central Arizona (Smith et al. 2003, processes that may influence habitat world (IPCC 2007b, p. 8). pp. 8, 10), and caused a dramatic rise in changes over time, such as climate Changes in climate can have a variety the prevalence of non-breeding and change. Climate change is a long-term of direct and indirect ecological impacts unpaired flycatchers (Paxton et al. 2007, shift in the statistics of the weather on species, and can exacerbate the p. 4). While extreme drought during a (including its averages). In its Fourth effects of other threats. Climate- single year can generate impacts to Assessment Report, the associated environmental changes to the breeding success, drought can also have Intergovernmental Panel on Climate landscape, such as decreased stream localized short-term benefits in some Change (IPCC) defines climate change flows, increased water temperatures, regulated environments. For instance, at as, ‘‘a change in the state of the climate reduced snowpack, and increased fire some reservoirs (such as Roosevelt Lake, that can be identified by changes in the frequency, affect species and their Arizona, and Lake Isabella, California), mean and/or variability of its properties habitats. The vulnerability of a species drought led to reduced water storage, and that persists for an extended period, to climate change impacts is a function which increased the exposure of wet typically decades or longer’’ (Solomon of the species’ sensitivity to those soils at the lake’s perimeter. Continued et al. 2007, p. 943). Changes in climate changes, its exposure to those changes, drought in those areas allowed the already are occurring. Examples of and its capacity to adapt to those exposed areas to grow vegetation and observed changes in the physical changes. The best available science is become new flycatcher nesting habitat environment include an increase in used to evaluate the species’ response to (Ellis et al. 2008, p. 44). These short- global average sea level and declines in these stressors. We recognize that future term and localized habitat increases are mountain glaciers and average snow climate change may present a particular not likely sustainable with persistent cover in both the northern and southern challenge evaluating habitat conditions drought or long-term predictions of a hemispheres (IPCC 2007a, p. 30). At for species like the flycatcher because drier environment, because of the continental, regional, and ocean basin the additional stressors may push overall importance of the presence of scales, observed changes in long-term species beyond their ability to survive surface water and elevated groundwater trends of other aspects of climate in their present location. needed to grow dense riparian forests include: a substantial increase in Exactly how climate change will for flycatcher habitat. As a result, we precipitation in eastern parts of North affect precipitation in the specific areas expect long-term climate trends American and South America, northern with flycatcher habitat is uncertain. associated with a drier climate to have However, consistent with recent Europe, and northern and central Asia; an overall negative effect on the observations of regional effects of declines in precipitation in the available rangewide habitat for climate change, the projections Mediterranean, southern Africa, and flycatchers. presented for the Southwest predict parts of southern Asia; and an increase Considering these issues and other warmer, drier, and more drought-like in intense tropical cyclone activity in information regarding the biology and conditions (Hoerling and Eischeid 2007, the North Atlantic since about 1970 ecology of the species, we have p. 19; Seager et al. 2007, p. 1181). For (IPCC 2007a, p. 30). determined that the flycatcher requires example, climate simulations of the the essential physical or biological Projections of climate change globally Palmer Drought Severity Index (a features described below. and for broad regions through the 21st calculation of the cumulative effects of century are based on the results of precipitation and temperature on Space for Individual and Population modeling efforts using state-of-the-art surface moisture balance) for the Growth and for Normal Behavior Atmosphere-Ocean General Circulation Southwest for the periods of 2006 to Streams of lower gradient and more Models and various greenhouse gas 2030 and 2035 to 2060 show an increase open valleys with a wide and broad emissions scenarios (Meehl et al. 2007, in drought severity with surface floodplain are the geological settings p. 753; Randall et al. 2007, pp. 596– warming. Additionally, drought still that are known to support flycatcher 599). As is the case with all models, increases even during wetter breeding habitat from near sea level to there is uncertainty associated with simulations because of the effect of heat- about 2,600 m (8,500 ft) in elevation in projections due to assumptions used related moisture loss through southern California, southern Nevada, and other features of the models. evaporation and evapotranspiration southern Utah, southern Colorado, However, despite differences in (Hoerling and Eischeid 2007, p. 19). Arizona, and New Mexico (Service assumptions and other parameters used Annual mean precipitation is likely to 2002, p. 7). Lands with moist conditions in climate change models, the overall decrease in the Southwest, as is the that support riparian plant communities surface air temperature trajectory is one length of snow season and snow depth are areas that provide flycatcher habitat. of increased warming in comparison to (IPCC 2007b, p. 887). Most models Conditions like these typically develop current conditions (Meehl et al. 2007, p. project a widespread decrease in snow in lower elevation floodplains as well as 762; Prinn et al. 2011, p. 527). Among depth in the Rocky Mountains and where streams enter impoundments, the IPCC’s projections for the 21st earlier snowmelt (IPCC 2007b, p. 891). either natural (such as beaver ponds) or century are the following: (1) It is In summary, we expect that climate human-made (reservoirs). Low-gradient virtually certain there will be warmer change will result in a warmer, drier stream conditions may also occur at and more frequent hot days and nights climate, and reduced surface water high elevations, as in the marshy over most of the earth’s land areas; (2) across the flycatcher’s range. mountain meadows supporting it is very likely there will be increased In the recent past, drought has had flycatchers in the headwaters of the frequency of warm spells and heat both negative and positive effects on Little Colorado River near Greer, waves over most land areas, and the breeding flycatchers and their habitat, Arizona, or the flat-gradient portions of frequency of heavy precipitation events which can provide insight into how the upper Rio Grande in south-central will increase over most areas; and (3) it climate change may affect flycatchers Colorado and northern New Mexico is likely that increases will occur in the and flycatcher habitat. For example, the (Service 2002, p. 32). Sometimes, the

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low-gradient wider floodplain exists Food, Water, Air, Light, Minerals, or Water only at the habitat patch itself within a Other Nutritional or Physiological Flycatcher nesting habitat is largely stream that is otherwise steeper in Requirements associated with perennial (persistent) gradient (Service 2002, p. D–12). Food stream flow that can support the Relatively steep, confined streams can expanse of vegetation characteristics also support flycatcher breeding habitat The flycatcher is somewhat of an needed by breeding flycatchers, but (Service 2002, p. D–13). For instance, a insect generalist (Service 2002, p. 26), there are exceptions. Flycatcher nesting portion of the San Luis Rey River in taking a wide range of invertebrate prey habitat can persist on intermittent including flying, and ground- and California supports a substantial (ephemeral) streams that retain local vegetation-dwelling species of terrestrial flycatcher population and stands out conditions favorable to riparian and aquatic origins (Drost et al. 2003, among flycatcher habitats as having a vegetation (Service 2002, p. D–12). The pp. 96–102). Wasps and bees relatively high gradient and being range and variety of stream flow (Hymenoptera) are common food items, confined in a fairly narrow, steep-sided conditions (frequency, magnitude, as are flies (Diptera), beetles valley (Service 2002, p. D–13). Even a duration, and timing) (Poff et al. 1997, (Coleoptera), butterflies, moths and steep, confined canyon or mountain pp. 770–772) that will establish and caterpillars (Lepidoptera), and stream may present local conditions maintain flycatcher habitat can arise in spittlebugs (Homoptera) (Beal 1912, pp. where just a small area less than a different types of both regulated and 60–63; McCabe 1991, pp. 119–120). hectare (acre) in size of flycatcher unregulated flow regimes throughout its Plant foods such as small fruits have breeding habitat may develop (Service range (Service 2002, p. D–12). Also, also been reported (Beal 1912, pp. 60– flow conditions that will establish and 2002, p. D–13). Such sites are important 63; Roberts 1932, p. 20; Imhof 1962, p. individually and in aggregate to maintain flycatcher habitat can be 268), but are not a significant food achieved in regulated streams, contribute to metapopulation stability, during the breeding season (McCabe site connectivity, and gene flow (Service depending on scale of operation and the 1991, pp. 119–120). Diet studies of adult interaction of the primary physical 2002, p. D–13). Flycatchers can occupy flycatchers (Drost et al. 1998, p.1; DeLay very small, isolated habitat patches and characteristics of the landscape (Service et al. 1999, p. 216) found a wide range 2002, p. D–12). may occur in fairly high densities of prey taken. Major prey items were within those small patches. In the Southwest, hydrological small (flying ants) (Hymenoptera) to conditions at a flycatcher breeding site Many willow flycatchers are found large (dragonflies) (Odonata) flying can vary remarkably within a season along streams using riparian habitat insects, with Diptera and Hemiptera and between years (Service 2002, p. D– during migration (Yong and Finch 1997, (true bugs) comprising half of the prey 12). At some locations, particularly p. 253; Service 2002, p. E–3). Migration items. Willow flycatchers also took non- during drier years, water or saturated stopover areas can be similar to flying species, particularly Lepidoptera soil is only present early in the breeding breeding habitat or riparian habitats larvae. From an analysis of the season (May and part of June) (Service with less vegetation density and flycatcher diet along the South Fork of 2002, p. D–12). At other sites, vegetation abundance compared to areas for nest the Kern River, California (Drost et al. may be immersed in standing water placement (the vegetation structure is 2003, p. 98), flycatchers consumed a during a wet year but be hundreds of too short or sparse or the patch is too variety of prey from 12 different insect meters from surface water in dry years small) (Service 2002, p. E–3). For groups. Flycatchers have been identified (Service 2002, p. D–12). This is example, many locations where migrant targeting seasonal hatchings of aquatic particularly true of reservoir sites such flycatchers were detected on the lower insects along the Salt River arm of as the Kern River at Lake Isabella, Colorado River (LCR) (Koronkiewicz et Roosevelt Lake, Arizona (Paxton et al. California; Roosevelt Lake, Arizona; and al. 2004, pp. 9–11) and throughout 2007, p. 75). Elephant Butte Reservoir, New Mexico Arizona in 2004 (Munzer et al. 2005, Flycatcher food availability may be (Service 2002, p. D–12). Similarly, Appendix C) were areas surveyed for largely influenced by the density and where a river channel has changed territories, but none were detected. Such species of vegetation, proximity to and naturally, there may be a total absence migration stopover areas, even though presence of water, saturated soil levels, of water or visibly saturated soil for not used for breeding, are critically and microclimate features such as several years. In such cases, the riparian important resources affecting temperature and humidity (Service vegetation and any flycatchers breeding productivity and survival (Service 2002, 2002, pp. 18, D–12). Flycatchers forage within it may persist for several years p. E–3). The variety of riparian habitat within and above the tree canopy, along (Service 2002, p. D–12). occupied by migrant flycatchers ranges the patch edge, in openings within the In some areas, natural or managed from small patches with shorter and territory, over water, and from tall trees hydrologic cycles can create temporary sparser vegetation to larger more as well as herbaceous ground cover flycatcher habitat, but may not be able complex breeding habitats. (Bent 1960, pp. 209–210; McCabe 1991, to support it for an extended amount of Therefore, based on the information p. 124). Flycatchers employ a ‘‘sit and time, or may support varying amounts above, we identify streams of lower wait’’ foraging tactic, with foraging of habitat at different points in the gradient and more open valleys with a bouts interspersed with longer periods cycle. Some dam operations create wide or broad floodplain an essential of perching (Prescott and Middleton varied situations that allow different physical or biological feature of 1988, p. 25). plant species to thrive when water is flycatcher habitat. In some instances, Therefore, based on the information released below a dam, held in a lake, or streams in relatively steep, confined above, we identify the presence of a removed from a lakebed, and areas can also support flycatcher wide range of invertebrate prey, consequently, varying degrees of breeding habitat (Service 2002, p. D–13). including flying and ground- and flycatcher habitat are available as a These areas support the abundance of vegetation-dwelling species of terrestrial result of dam operations (Service 2002, riparian vegetation used for flycatcher and aquatic origins to be an essential p. 33). The riparian vegetation that nesting, foraging, dispersal, and physical or biological feature of constitutes flycatcher breeding habitat migration. flycatcher habitat. requires substantial water (Service 2002,

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p. D–12). Because flycatcher breeding extensive (Arizona Department of Water dispersing, and migrating flycatchers as habitat is often where there is slow- Resources 1994, p. 31). essential physical or biological features moving or still water, these slow and The abundance and distribution of of flycatcher habitat. still water conditions may also be fine sediment deposited on floodplains Sites for Breeding, Reproduction, or important in influencing the production is critical for the development, Rearing (or Development) of Offspring of insect prey base for flycatcher food abundance, distribution, maintenance, (Service 2002, p. D–12). These slow- and germination of the plants that grow Reproduction and Rearing of Offspring moving water situations can also be into flycatcher habitat (Service 2002, p. Riparian habitat characteristics such managed or mimicked through 16). Fine sediments provide seed beds as dominant plant species, size and manipulated supplemental water to facilitate the growth of riparian shape of habitat patches, tree canopy originating from sources such as vegetation for flycatcher habitat. In structure, vegetation height, and agricultural return flows or irrigation almost all cases, moist or saturated soil vegetation density are important canals (Service 2002, p. D–15). is present at or near breeding sites parameters of flycatcher breeding during wet and non-drought years Therefore, based on the information habitat, although they may vary widely (Service 2002, p. 11). The saturated soil above, we identify flowing streams with at different sites (Service 2002, p. D–1). and adjacent surface water may be a wide range of stream flow conditions The accumulating knowledge of present early in the breeding season, but that support expansive riparian flycatcher breeding sites reveals only damp soil is present by late June vegetation as an essential physical important areas of similarity, which or early July (Service 2002, p. D–3). feature of flycatcher habitat. The most constitute the basic concept of what is Microclimate features (temperature and common stream flow conditions are suitable breeding habitat (Service 2002, humidity) facilitated by moist or largely perennial (persistent) stream p. D–2). These habitat features are saturated soil, are believed to play an flow with a natural hydrologic regime generally discussed below. important role where flycatchers are (frequency, magnitude, duration, and Flycatchers nest in thickets of trees detected and nest, their breeding timing). However, in the Southwest, and shrubs ranging in height from 2 m success, and availability and abundance hydrological conditions can vary, to 30 m (6 to 98 ft) (Service 2002, p. D– of food resources (Service 2002, pp. 18, causing some flows to be intermittent, 3). Lower-stature thickets (2–4 m or 6– but the floodplain can retain surface D–12). Therefore, based on the information 13 ft tall) tend to be found at higher moisture conditions favorable to above, we identify elevated subsurface elevation sites, with tall-stature habitats expansive and flourishing riparian groundwater taZbles and appropriate at middle- and lower-elevation riparian vegetation. These appropriate floodplain fine sediments as essential forests (Service 2002, p. D–2). Nest sites conditions can be supported by physical or biological features of typically have dense foliage at least managed water sources and flycatcher habitat. These features from the ground level up to hydrological cycles that mimic key provide water and seedbeds for the approximately 4 m (13 ft) above ground, components of the natural hydrologic germination, growth, and maintenance although dense foliage may exist only at cycle. of expansive growth of riparian the shrub level, or as a low, dense tree Sites for Germination or Seed Dispersal vegetation needed by the flycatcher. canopy (Service 2002, p. D–3). Regardless of the plant species’ Subsurface hydrologic conditions may Cover or Shelter composition or height, breeding sites in some places (particularly at the more Riparian vegetation (described more usually consist of dense vegetation in arid locations of the Southwest) be in detail within the ‘‘Sites for Breeding, the patch interior, or an aggregate of equally important to surface water Reproduction, or Rearing (or dense patches interspersed with conditions in determining riparian Development) of Offspring’’ section) openings creating a mosaic that is not vegetation patterns (Lichivar and also provides the flycatcher cover and uniformly dense (Service 2002, p. 11). Wakely 2004, p. 92). Where shelter while migrating and nesting. Common tree and shrub species groundwater levels are elevated to the Placing nests in dense vegetation currently known to comprise nesting point that riparian forest plants can provides cover and shelter from habitat include Gooddings willow, directly access those waters, it can be an predators or nest parasites that would coyote willow, Geyer’s willow, arroyo area for breeding, non-breeding, seek out flycatcher adults, nestlings, or willow, red willow, yewleaf willow, territorial, dispersing, foraging, and eggs. Similarly, using riparian pacific willow (Salix lasiandra), migrating flycatchers. Elevated vegetation for cover and shelter during boxelder, tamarisk, and Russian olive groundwater helps create moist soil migration provides food-rich stopover (Service 2002, pp. D–2, D–11). Other conditions believed to be important for areas, a place to rest, and shelter or plant species used for nesting have been nesting conditions and prey populations cover along migratory flights (Service buttonbush (Cephalanthus (Service 2002, pp. 11, 18), as further 2002, pp. D–14, F–16). Riparian occidentalis), cottonwood, stinging discussed below. vegetation used by migrating flycatchers nettle (Urtica dioica), alder (Alnus Depth to groundwater plays an can sometimes be less dense and rhombifolia, Alnus oblongifolia, Alnus important part in the distribution of abundant than areas used for nesting tenuifolia), velvet ash (Fraxinus riparian vegetation (Arizona Department (Service 2002, p. D–19). However, velutina), poison hemlock (Conium of Water Resources 1994, p. 31) and, migration stopover areas, even though maculatum), blackberry (Rubus consequently, flycatcher habitat. The not used for breeding, may be critically ursinus), seep willow (Baccharis greater the depth to groundwater below important resources affecting local and salicifolia, Baccharis glutinosa), oak the land surface, the less abundant the regional flycatcher productivity and (Quercus agrifolia, Quercus riparian vegetation (Arizona Department survival (Service 2002, p. D–19). chrysolepis), rose (Rosa californica, of Water Resources 1994, p. 31). Therefore, based on the information Rosa arizonica, Rosa multiflora), Localized, perched aquifers (a saturated above, we identify riparian tree and sycamore (Platanus wrightii), giant reed area that sits above the main water shrub species (described in more detail (Arundo donax), false indigo (Amorpha table) can and do support some riparian below) that provide cover and shelter californica), Pacific poison ivy habitat, but these systems are not for nesting, breeding, foraging, (Toxicodendron diversilobum), grape

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(Vitis arizonica), Virginia creeper riparian vegetation improvement extends out from larger patches) or (Parthenocissus quinquefolia), Siberian projects focus on the eradication or during migration for foraging, cover, and elm (Ulmus pumila), and walnut control of tamarisk. The implementation shelter (Sogge and Tibbitts 1994, p. 16; (Juglans hindsii) (Service 2002, pp. D– of these projects requires careful Sogge and Marshall 2000, p. 53). 3, D–5, D–9). Other species used by evaluation (see Special Management Therefore, based on the information nesting flycatchers may become known Considerations or Protections below) above, we identify a variety of riparian over time as more studies and surveys and success can rely on the tree and shrub species as essential occur. improvement of the physical or physical or biological features of Canopy density (the amount of cover biological features included in this flycatcher habitat. Typically, dense provided by tree and shrub branches determination associated with river flow expansive riparian forests provide measured from the ground) at various and groundwater (Service 2002, habitat to place nests. Riparian nest sites ranged from 50 to 100 percent Appendices H and K). vegetation of broader quality, with a (Service 2002, p. D–3). Flycatcher Flycatchers have been recorded mosaic of open spaces, typically breeding habitat can be generally nesting in patches as small as 0.1 ha surround locations to place nests or organized into three broad habitat (0.25 ac) along the Rio Grande, and as along river segments and provide types—those dominated by native large as 70 ha (175 ac) in the upper Gila vegetation for foraging, perching, vegetation (typically willow), by exotic River, New Mexico (Service 2002, p. dispersal, and migration, and habitat (nonnative) vegetation (typically salt 17). The mean reported size of that can develop into nesting areas cedar), and those with mixed native and flycatcher breeding patches was 8.6 ha through time. those dominated by exotic plants (21.2 ac), with the majority of sites Primary Constituent Elements for (typically salt cedar and willow). toward the smaller end, as evidenced by Flycatcher These broad habitat descriptors reflect a median patch size of 1.8 ha (4.4 ac) the fact that flycatchers inhabit riparian (Service 2002, p. 17). Mean patch size Under the Act and its implementing habitats dominated by both native and of breeding sites supporting 10 or more regulations, we are required to identify nonnative plant species. Salt cedar and flycatcher territories was 24.9 ha (62.2 the physical or biological features Russian olive are two exotic plant ac). Aggregations of occupied breeding essential to flycatcher conservation in species used by flycatchers for nest patches within a breeding site may areas occupied at the time of listing, placement and also foraging and shelter create a riparian mosaic as large as 200 focusing on the features’ primary (Service 2002, p. D–4). The riparian ha (494 ac), such as areas like the Kern constituent elements. Primary patches used by breeding flycatchers River (Whitfield 2002, p. 2), Alamo constituent elements are those specific vary in size and shape (Service 2002, p. Lake, Roosevelt Lake (Paradzick et al. elements of the physical or biological D–2). They may be relatively dense, 1999, pp. 6–7), and Lake Mead features that provide for a species’ life- linear, contiguous stands or irregularly- (McKernan 1997, p. 13). history processes and are essential to shaped mosaics of dense vegetation Flycatchers can cluster their the conservation of the species. with open areas (Service 2002, pp. D– territories into small portions of riparian Based on our current knowledge of 2–D–11). sites (Whitfield and Enos 1996, p. 2; the physical or biological features and Flycatchers use tamarisk (or salt Sogge et al. 1997, p. 24), and major habitat characteristics required to cedar) and Russian olive for nest portions of the site may only be used sustain the species’ life-history placement, foraging, roosting, cover, briefly or not at all in any given year. processes, we determine that the migration, and dispersal. Fewer than Habitat modeling based on remote primary constituent elements specific to half (44 percent) of the known sensing and electronic Geographic the flycatcher are: flycatcher territories occur in habitat Information System (GIS) data has (1) Primary Constituent Element 1— patches that are greater than 90 percent found that breeding site occupancy at Riparian vegetation. Riparian habitat native vegetation in composition (Durst reservoir sites in Arizona is influenced along a dynamic river or lakeside, in a et al. 2008, p.15). About 50 percent of by vegetation characteristics of habitat natural or manmade successional all known flycatcher territories are adjacent to the actual nesting areas environment (for nesting, foraging, located at breeding sites that include (Hatten and Paradzick 2003, pp. 774, migration, dispersal, and shelter) that is mixtures of native and exotic plant 782); therefore, areas adjacent to nest comprised of trees and shrubs (that can species (mostly tamarisk) (Durst et al. sites can be an important component of include Gooddings willow, coyote 2008, p.15). In many of these areas, a breeding site. How size and shape of willow, Geyer’s willow, arroyo willow, exotic plant species are significant riparian patches relate to factors such as red willow, yewleaf willow, pacific contributors to the habitat structure by flycatcher nest-site selection and willow, boxelder, tamarisk, Russian providing the dense lower strata fidelity, reproductive success, olive, buttonbush, cottonwood, stinging vegetation that flycatchers prefer (Durst predation, and brood parasitism is nettle, alder, velvet ash, poison et al. 2008, p.15). A USGS comparative unknown (Service 2002, p. D–11). hemlock, blackberry, seep willow, oak, study (Sogge et al. 2005, p. 1) found no With only some exceptions, rose, sycamore, false indigo, Pacific difference in flycatcher physiology, flycatchers are generally not found poison ivy, grape, Virginia creeper, immunology, site fidelity, productivity, nesting in confined floodplains Siberian elm, and walnut) and some or survivorship between flycatchers (typically those bound within a narrow combination of: nesting in tamarisk-dominated habitat canyon) (Hatten and Paradzick 2003, p. (a) Dense riparian vegetation with versus native-dominated habitats. 780) or where only a single narrow strip thickets of trees and shrubs that can Tamarisk habitats vary with respect to of riparian vegetation less than range in height from about 2 to 30 m suitability for breeding flycatchers approximately 10 m (33 ft) wide (about 6 to 98 ft). Lower-stature thickets across their range, just as do native develops (Service 2002, p. D–11). While (2 to 4 m or 6 to 13 ft tall) are found habitats (Sogge et al. 2005, p.1). While riparian vegetation too mature, too at higher elevation riparian forests and the literature refutes or questions the immature, or of lesser quality in tall-stature thickets are found at middle- negative environmental impacts of abundance and breadth may not be used and lower-elevation riparian forests; tamarisk (Glenn and Nagler 2005, pp. 1– for nesting, it can be used by breeding (b) Areas of dense riparian foliage at 2; USGS 2010, pp. vi–xviii), many flycatchers for foraging (especially if it least from the ground level up to

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approximately 4 m (13 ft) above ground maintain metapopulation stability, denominations of 25. The goal for some or dense foliage only at the shrub or tree connectivity, and gene flow, and to Management Units may be as few as 25 level as a low, dense canopy; protect against catastrophic loss. All territories or as many as 325. (c) Sites for nesting that contain a river segments designated as flycatcher With this designation of critical dense (about 50 percent to 100 percent) critical habitat are either: (1) Within the habitat, we intend to identify the tree or shrub (or both) canopy (the known range of the subspecies, physical or biological features essential amount of cover provided by tree and representing areas known to be to the conservation of the species, shrub branches measured from the occupied at the time of listing; or (2) through the identification of the ground); essential areas for the conservation of features’ primary constituent elements (d) Dense patches of riparian forests the species not known to be occupied by sufficient to support the life-history that are interspersed with small the flycatcher at the time of listing, but processes of the species. openings of open water or marsh or now may or may not be known to have areas with shorter and sparser Special Management Considerations or flycatchers present. These areas contain Protections vegetation that creates a variety of at least one the primary constituent habitat that is not uniformly dense. elements of the physical or biological When designating critical habitat, we Patch size may be as small as 0.1 ha features essential for the conservation of assess whether the specific areas within (0.25 ac) or as large as 70 ha (175 ac). the subspecies. It is important to the geographical area occupied by the (2) Primary Constituent Element 2— recognize that the primary constituent species at the time of listing contain Insect prey populations. A variety of elements such as riparian vegetation features that are essential to the insect prey populations found within or with trees and shrubs of a certain type conservation of the species and which adjacent to riparian floodplains or moist and insect prey populations are present may require special management considerations or protection. environments, which can include: flying throughout the river segments selected, As mentioned briefly or referenced in ants, wasps, and bees (Hymenoptera); but the specific quality of riparian dragonflies (Odonata); flies (Diptera); this rule, the flycatcher and its habitat habitat for nesting (which involve are threatened by a multitude of factors true bugs (Hemiptera); beetles elements such as specific configuration (Coleoptera); butterflies, moths, and occurring at once. Threats to those of riparian foliage, sites for nesting, and features that define critical habitat caterpillars (Lepidoptera); and interspersion of small openings), spittlebugs (Homoptera). (elements of physical or biological migration, foraging, and shelter will not features) are caused by various factors. With this critical habitat designation, remain constant in condition or location we intend to identify the physical or We believe the essential features within over time due to succession (plant the critical habitat areas will require biological features essential to the germination and growth) and the conservation of the species, through the some level of management or protection dynamic environment in which they (or both) to address the current and identification of the features’ primary exist. constituent elements sufficient to future threats and maintain the quality, support the life-history processes of the In order to reach the goal of quantity, and arrangement of the species. conserving the subspecies by recovering elements of physical or biological an adequate geographical distribution features essential to flycatcher Physical or Biological Features and that represents ecological diversity of conservation. Primary Constituent Elements Summary the flycatcher populations, the Essential features in need of special The discussion above outlines those distribution and abundance of management occur not only at the physical or biological features essential flycatcher habitat and breeding immediate locations where the to flycatcher conservation and presents populations must improve across the 29 flycatcher may be present, but at our rationale as to why those features Management Units (see Background additional areas needed to reach were selected. The primary constituent section). The recovery goal is 1,950 recovery goals and areas that can elements described above are results of flycatcher territories geographically and provide for normal population the dynamic river or lakeside numerically distributed in the fluctuations and habitat succession that environment that germinates, develops, appropriate Management Units along may occur in response to natural and maintains, and regenerates the riparian with twice the habitat needed to unpredictable events. The flycatcher forest and provides food for breeding, maintain these territories (see may be dependent upon habitat non-breeding, dispersing, territorial, and Background section). Also, these areas components beyond the immediate migrating flycatchers. must hold these populations for a areas where individuals of the species Anthropogenic factors such as dams, number of years and be protected occur if they are important in irrigation ditches, or agricultural field through conservation agreements or maintaining ecological processes such return flow can assist in providing or other means. The most recent rangewide as hydrologic regimes; plant mimicking the conditions that support flycatcher assessment estimated that germination, growth, maintenance, and flycatcher habitat. In regulated there were about 1,300 flycatcher regeneration (succession); environments, riparian vegetation territories (Durst et al. 2008, p. 13). The sedimentation; groundwater elevations; improvement projects associated with Lower Colorado, Upper Colorado, and plant health and vigor; or maintenance planting, irrigation, and cultivation may Basin and Range Recovery Units need of prey populations. also require manual manipulation to the most growth in known territories The designation of critical habitat maintain suitability over the long term. and habitat to reach recovery goals. does not imply that lands outside of Because the flycatcher exists in While there is still great variance in the critical habitat do not play an important disjunct breeding populations across a known number of territories within the role in flycatcher conservation. Federal wide geographic and elevation range Coastal California, Gila, and Rio Grande activities outside of critical habitat are and its habitat is subject to dynamic Recovery Units, these areas are closer in still subject to review under section 7 of events (such as flooding and drying), the number of territories and amount of the Act if they may affect the flycatcher quantity and spatial arrangement of habitat to the established recovery goals. or its critical habitat (such as critical habitat river segments described The numeric territory goals established groundwater pumping, developments, below are essential for the flycatcher to per Management Unit are in watershed condition). Prohibitions of

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section 9 of the Act also continue to (5) Manage exotic plant species, such germination, growth, and maintenance apply both inside and outside of as tamarisk or Russian olive, by of preferred vegetation. designated critical habitat. reducing conditions that allow exotics (8) Manage or reduce the occurrence, A detailed discussion of threats to the to be successful, and restoring or spread, and effects of biocontrol agents flycatcher and its habitat can be found reestablishing conditions that allow on flycatcher habitat. Exotic biocontrol in the final listing rule (60 FR 10694, native plants to thrive. Throughout the tamarisk leaf beetle insects (leaf beetles) February 27, 1995), the previous critical range of the flycatcher, the success of were brought into and released in many habitat designations (62 FR 39129, July exotic plants within river floodplains is locations throughout the western United 22, 1997; 70 FR 60886, October 19, largely a symptom of land and water States. This specific U.S. Department of 2005), and the final Recovery Plan management (for example, groundwater Agriculture program was terminated in (Service 2002, pp. 33–42, Appendix F). withdrawal, surface water diversion, 2010, largely because these insects are Some of the special management actions dam operation, and unmanaged grazing) moving farther and thriving in the that may be needed for essential features that has created conditions favorable to southwestern United States (within the of flycatcher habitat are briefly exotic plants over native plants. Special flycatcher’s breeding range) where it summarized below. management may include the following was initially believed they would not (1) Restore adequate water-related actions: eliminate or reduce dewatering persist (APHIS 2010, p. 2). However, elements to improve and expand the stressors such as surface water diversion leaf beetles still exist within the United quality, quantity, and distribution of and groundwater pumping to increase States, and specifically within the riparian habitat. Special management stream flow and groundwater northern range of the flycatcher in may: increase efficiency of groundwater elevations; reduce salinity levels by Nevada, Arizona, and New Mexico. It is management; use urban water outfall modifying agricultural practices and unknown to what extent these leaf and irrigation delivery and tail waters restoring natural hydrologic regimes and beetles will continue to move for vegetation improvement; maintain, flushing flood flows; in regulated throughout the Southwest. Their overall improve, provide, or reestablish streams, restore more natural hydrologic impact or benefit to the flycatcher, instream flows to expand the quality, regimes that favor germination and flycatcher habitat, and other wildlife distribution, and abundance of riparian growth of native plant species. Improve species is also unknown, but there are vegetation; increase the width between timing of water draw down in lake predictions that the beetles could occur levees to expand the active channel bottoms to coincide with the seed throughout the western United States during overbank flooding; and manage dispersal and germination of native and into northern Mexico (Tracy et al. regulated river flows to more closely species; and restore ungulate herbivory 2008, pp. 1–3). There is concern about effects to the flycatcher in places resemble the natural hydrologic regime. to intensities and levels under which throughout much of its range where the (2) Retain riparian vegetation in the native riparian species are more landscape does not support healthy floodplain. Special management may competitive. (6) Manage fire to maintain and native riparian vegetation (even in the include the following actions: avoid enhance habitat quality and quantity. absence of tamarisk). Along the Virgin clearing channels for flood flow Special management may include the River in southwestern Utah, flycatcher conveyance or plowing of flood plains; following actions: suppress fires that breeding attempts have failed and implement projects to minimize occur; and reduce risk of fire by concurrent with leaf beetle impacts to clearing of vegetation (including exotic restoring elevated groundwater levels, the vegetation (Paxton et al. 2010, p.1). vegetation) to help ensure that desired base flows, flooding, and natural Rangewide, tamarisk is a habitat native species and exotic vegetation hydrologic regimes in order to prevent component of over half of all known persist until an effective riparian drying of riparian areas and more flycatcher territories (Durst et al. 2007, vegetation improvement plan can be flammable exotic plant species from p. 15). Therefore, it would be beneficial implemented. developing; and reduce risk of to prevent purposeful or accidental (3) Manage biotic elements and recreational fires. intra- or interstate transport of leaf processes. Special management may (7) Evaluate and conduct exotic plant beetles to locations that would increase include the following actions: manage species removal and native plant the likelihood of beetles dispersing to livestock grazing to increase flycatcher species management on a site-by-site flycatcher habitat. Similarly, because habitat quality and quantity by basis. If habitat assessments reveal a insects can travel or be moved large determining appropriate areas, seasons, sustained increase in exotic plant distances, prevent the additional release and use consistent within the natural abundance, conduct an evaluation of the of leaf beetles (in all their varieties) into historical norm and tolerances; underlying causes and conduct the environment where they can reconfigure grazing units, improve vegetation improvement under eventually occur within flycatcher fencing, and improve monitoring and measures described in the Recovery habitat. Where leaf beetle-related documentation of grazing practices; Plan (Service 2002, Appendices H and impacts may occur or are happening, manage wild and feral hoofed-mammals K). Remove exotics only if: underlying consider the previous items in this list (ungulates) (e.g., elk, horses, burros) to causes for dominance have been and the Recovery Plan for strategies to increase flycatcher habitat quality and addressed; there is evidence that exotic help improve the germination and quantity; and manage keystone species species will be replaced by vegetation of growth of native plants (Service 2002, p. such as beaver to restore desired higher functional value; and the action Appendix K). processes to increase habitat quality and is part of an overall vegetation quantity. improvement plan. Native riparian Criteria Used To Identify Critical (4) Protect riparian areas from vegetation improvement plans should Habitat recreational impacts. Special include: a staggered approach to create As required by section 4(b)(1)(A) of management may include actions such mosaics of different aged successional the Act, we use the best scientific and as managing trails, campsites, off-road tree and shrub stands; consideration of commercial data available to designate vehicles, and fires to prevent habitat whether the sites are presently occupied critical habitat. We review available development and degradation in by nesting flycatchers; and management information pertaining to the habitat flycatcher habitat. of stressors that can improve the requirements of the species (or in this

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instance, a willow flycatcher segments. The lateral extent of each to 25 mi) of each other will have higher subspecies). In accordance with the Act river segment occurs within the 100- metapopulation connectivity, and there and its implementing regulation at 50 year floodplain (see Physical or is a higher probability of colonization of CFR 424.12(e), we consider whether Biological Features section) and is new habitats that are within this designating additional areas—outside further described below (see Lateral distance (Paxton et al. 2007, p. 76). those currently occupied as well as Extent section). Therefore, designating Sometimes, flycatchers can even move those occupied at the time of listing— stream segments as critical habitat will to a very distant location, dispersing as are necessary to ensure the conservation provide for the variety of flycatcher uses far as 444 km (275 mi) from a previous of this flycatcher subspecies. As defined and allow for ever-changing streamside year’s nesting area (Paxton et al. 2007, under section 3(5)(A)(i) of the Act, we vegetation habitat quality (in location p. 2). These year-to-year movements are are designating critical habitat in areas and abundance). facilitated by the dynamic nature of within the geographical area known to flycatcher habitat, changing in quality Occupancy at the Time of Listing be occupied by nesting flycatchers at the and location over time. More dramatic time of listing in 1995 that contain the We identified areas occupied at the changes in habitat quality caused by essential physical or biological features time of listing in 1995 as those streams events such as flooding or inundation and require special management or where flycatcher territories were can force flycatchers to move their protections. As defined under section detected in any one season from surveys breeding location, thus causing them to 3(5)(A)(ii) of the Act, we also are conducted from 1991 to 1994 (Sogge use broader locations and habitat designating specific areas outside the and Durst 2008). The flycatcher quality. geographical area occupied by nesting rangewide database (Sogge and Durst Therefore, for this wide-ranging bird, flycatchers at the time of listing (but that 2008) is the authoritative source for it is difficult to precisely determine are within its known historical breeding determining territories because our 1995 known occupied areas due to the distribution), because such areas are flycatcher listing rule did not list all following considerations: (1) The essential for the conservation of the known data regarding flycatcher flycatcher’s neotropical migratory habits species as supported by the distribution and abundance. We of occupying stopover areas along geographical and numerical flycatcher considered a broader area to be streams upstream of, downstream of, territory and habitat-related recovery occupied than just the specific site and between breeding sites; and (2) the goals established in the Recovery Plan where a territory was located because season-to-season variation in habitat (Service 2002, pp. 84–85). flycatchers are a neotropical migrant quality and subsequent lack of specific traveling between Central America (and nest-site fidelity. As a result, for the Stream Segments as Critical Habitat possibly northern South America) and purpose of this critical habitat We are designating ‘‘stream segments’’ the United States using migration designation, we believe it is most as the descriptor for the designated area stopover areas for food, cover, and conservative and reasonable to conclude of flycatcher critical habitat (which in shelter, and they are known to move to that any stream segment along a stream some areas also includes exposed different nest areas from year to year. where flycatcher territories were reservoir bottoms). Stream segments are Because flycatchers are neotropical detected from 1991 to 1994 also be appropriate for delineating critical migrants that occupy riparian areas considered occupied at the time of habitat because in addition to providing along rivers while traveling between listing. Those stream segments stream-side vegetation for flycatchers to wintering and breeding grounds, we considered occupied at the time of place nests, stream segments satisfy expect that abundant small areas along listing and those considered not other various flycatcher life needs long stretches of stream can be occupied at the time of listing that we adjacent to or between nesting sites irregularly occupied by migrant are designating as revised critical (foraging habitat, streams, elevated flycatchers from year-to-year. North- habitat are organized by Recovery and groundwater tables, moist soils, flying and south-bound migrating flycatchers Management Units (see below) and insects, and other alluvial floodplain are frequently found occupying stopover described briefly in the unit habitats) (see Physical or Biological areas along streams upstream of, descriptions below. All of the stream Features section). Also, the dynamic downstream of, and between known segments occupied at the time of listing processes of riparian vegetation breeding sites (Yong and Finch 1997, contain one or more of the primary succession (loss and regrowth) and river pp. 265–266; Service 2002, pp. E2–E3; constituent elements supported by the hydrology allow for stream segments to Koronkiewicz et al. 2004, pp. 9–11). In physical or biological features, which provide both current and future areas Arizona, migrant flycatchers were may require special management for flycatcher habitat to grow. Riparian detected at 204 sites statewide along 15 considerations, or protection as vegetation in these segments is expected of 19 river drainages surveyed for described above. We also include to naturally expand and contract from nesting flycatchers over a 10-year period whether flycatcher territories were flooding, inundation, drought, and the (Ellis et al. 2008, p. 26). Over 600 detected on stream segments not known resulting changes in the extent and migrant willow flycatchers (subspecies to be occupied at the time of listing (but location of floodplains and river not known) were detected along the are essential for flycatcher channels (Service 2002, pp. 18, D–13– length of the LCR in 2004 (Ellis et al. conservation). D–15). Therefore, while one or more of 2008, p. 26), where only a relatively few the physical or biological features are known breeding sites and territories Recovery Plan Guidance currently present, over time these exist. We relied heavily on the Recovery habitat features will fluctuate in quality Similarly, flycatchers are known to Plan (Service 2002) to help identify the or location throughout these stream have fidelity to a larger area along areas that we are designating as revised segments. Management of stream flows stream drainages (rather than specific critical habitat because the Recovery and other anthropogenic (manmade) nest site fidelity), and can move their Plan represents a compilation of the best factors, such as agricultural practices or territory locations about 30 to 40 km (18 scientific data available to us. We dam operations, can also influence the to 25 mi) from year to year (Paxton et particularly used the information from location and quality of the riparian al. 2007, p. 4). Locations with breeding the Recovery Plan, such as distribution vegetation in many of these stream habitat that are within 30 to 40 km (18 and abundance of flycatchers, flycatcher

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natural history and habitat needs, and and designate areas that are essential to specific areas where habitat quality and stream segments with substantial flycatcher conservation. Three of the 32 quantity improved. As a result of more recovery value, to help identify stream Management Units (Lower Gila, Pecos, extensive surveys and research, and in segments with features essential to and Texas) do not have any goals particular re-establishing known flycatcher conservation. identified in the Recovery Plan because occupancy of breeding sites in Nevada, The Recovery Plan’s strategy, of either the lack of habitat, the inability Utah, and Colorado, the extent of rationale, and science for conservation for habitat to recover, or the streams known to be used by migrating, of the flycatcher guided our efforts to determination that meaningful non-breeding, and dispersing identify essential features (elements in populations could not be established flycatchers has also expanded. sufficient quantity and spatial and persist. Therefore, no critical Following the most recent rangewide arrangement) and areas of critical habitat was proposed or designated estimate in 2007, 1,299 territories were habitat (Service 2002, pp. 61–95). within these three Management Units. described occurring in California, Because of the wide distribution of this Numerical flycatcher territory recovery Nevada, Utah, Colorado, Arizona, and bird and the dynamic nature of its goals for each of the 29 Management New Mexico (Durst et al. 2008, p. 4). habitat, it was important to designate Unit vary throughout the flycatcher’s Additional sites have been detected in critical habitat in areas throughout all of range from as few as 25 territories to as the following years, but an updated the breeding range of the flycatcher that many as 325 (Service 2002, pp. 84–85). rangewide estimate has not yet been have stated recovery goals. This In relying on these recovery goals and compiled. widespread distribution of habitat is strategies, we used a methodology with The locations of breeding sites were intended to allow flycatchers to two basic strategies to identify areas generated from standardized flycatcher function as a group of metapopulations, and, subsequently, river segments surveys conducted from 1991 to 2010. realize gene flow throughout its range, within those areas to propose and There has been a standardized survey provide ecological connectivity among consider as critical habitat. First, we protocol since the 1995 listing of the disjunct populations, allow for breeding identified areas based upon the flycatcher that biologists have used to site colonization potential, and prevent presence of large breeding populations confirm the presence of flycatcher catastrophic population losses. and areas with multiple small breeding territories that has produced reliable The Recovery Plan (Service 2002, pp. populations that when found in and accurate information (Tibbitts et al. 74–76) identifies important factors to proximity, form a large population. 1994, p. 1; Sogge et al. 1997, p. 1; Sogge consider in minimizing the likelihood of Once these areas were established, we et al. 2010, p. 1). To help ensure the extinction. These factors were also identified the specific end points of the protocol is being used properly, the considered in our approach to stream segments of flycatcher habitat. Service and our partners provide annual designating areas for critical habitat: (1) Second, for those Management Units training on protocol implementation The territory is the appropriate unit of with a specific number of territories and flycatcher status, identification, and measure for numerical flycatcher required to meet recovery goals, but no, natural history. recovery goals; (2) populations should or very few, known flycatcher be distributed throughout the bird’s territories, we used information from A variety of sources were used to range; (3) populations should be the Recovery Plan (Service 2002, pp. determine breeding site location and distributed close enough to each other 86–92) and other relevant sources to information from 1991 to 2010. The to allow for movement among them; (4) identify river segments with flycatcher Recovery Plan (Service 2002), the USGS large populations contribute most to habitat. The results of this strategy were flycatcher rangewide database (Sogge metapopulation stability, while smaller the identification of streams that: (1) and Durst 2008), the 2007 flycatcher populations can contribute to Were within the geographical area rangewide report (Durst et al. 2008), and metapopulation stability when arrayed known to be occupied by flycatchers at recent survey information for the 2008, in a matrix with high connectivity; (5) the time of listing with elements of the 2009, and 2010 breeding seasons were as the population of a site increases, the physical or biological features; (2) the all used as authoritative sources of potential to disperse and colonize identification of essential areas that information on breeding flycatcher increases; (6) increase and decrease in were not known to be occupied by distribution and abundance. The one population affects other flycatchers at the time of listing but that flycatcher rangewide database populations; (7) some Recovery and also include elements of the physical or developed and maintained by USGS Management Units have stable biological features of critical habitat; (Sogge and Durst 2008) compiles the metapopulations, but others do not; (8) and (3) the identification of areas for results of surveys conducted throughout maintaining or augmenting (or both) critical habitat that have never been the bird’s range since 1991. The most existing populations is a greater priority known to be occupied by flycatchers but recent rangewide assessment of than establishing new populations; and are essential for the conservation of the flycatcher distribution and abundance (9) establishing habitat close to existing flycatcher in order to meet recovery analyzed by USGS (Durst et al. 2008) breeding sites increases the chance of goals. estimates the number of territories that colonization. occur following the 2007 breeding Areas With Large Populations season, taking into account that the Methodology Overview To identify the areas with flycatcher entire range of the flycatcher is not Our goal was to propose stream habitat in each Management Unit, we surveyed completely in any single year. segments as critical habitat within 29 of first considered specific areas that are A summary of known historical the 32 Management Units (which are known since 1991 to have had large breeding records can be found in the geographic areas clustered within 6 populations of nesting flycatchers. Since Recovery Plan (Service 2002, pp. 8–10). Recovery Units) in order to meet the the time of listing in 1995, the known We also evaluated data in reports specific numerical flycatcher territory distribution and abundance of submitted during section 7 and habitat-related recovery goals flycatcher territories has increased consultations and by biologists holding (Service 2002, pp. 84–85), which are the primarily due to increased survey effort section 10(a)(1)(A) recovery permits; same criteria that we are using to (Durst et al. 2008, p. 4). Population research published in peer-reviewed identify physical or biological features increases have also been detected at articles, agency reports, and databases;

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and regional GIS coverages and habitat smaller separate flycatcher breeding add to our large population area, models. sites and the distance from large generate an additional 35-km (22-mi) We also examined 2008 to 2010 data populations to evaluate these areas as radius and extend our area, and so on. that the Service in Arizona, Nevada, critical habitat. In other words, how We also used this 35-km (22-mi) radius Utah, and Colorado compiled and much area around breeding sites should to identify those highly connected entered into separate databases and be considered as critical habitat? To breeding sites with a small number of spreadsheets and data from the USGS determine these distances, we examined territories that together equaled a large and U.S. Bureau of Reclamation (USBR) the known between-year movements of flycatcher population. for California and New Mexico, banded adult and juvenile flycatchers. Following the identification of these respectively. These data were The USGS’s 10-year flycatcher study in areas that surround large flycatcher compatible and therefore able to be central Arizona is the key movement populations, we determined where added to results of the 2007 USGS study that has generated these flycatcher habitat occurred on streams rangewide database (Sogge and Durst conclusions (Paxton et al. 2007, pp. 59– and where to establish end points for 2008) and report (Durst et al. 2008, 80), augmented by other flycatcher critical habitat. We used the Recovery entire) to identify breeding site banding and re-sighting studies Plan and other literature sources and locations, territory abundance and (Sedgwick 2004, p. 1103; McLeod et al. local knowledge to identify stream distribution, and large populations. 2008, pp. 93–112). These studies found segments. In combination with these However, these additional 3 years of that flycatchers have higher site fidelity areas of flycatcher habitat, we then raw data have not been synthesized by than nest fidelity and can move among considered the numerical and habitat- USGS into their overall USGS breeding sites within drainages and related recovery goals, and current and rangewide database (Sogge and Durst between drainages (Kenwood and previous number of known territories. 2008) and analyzed (consistent with Paxton 2001, pp. 30–31). Within- We also considered site-specific Durst et al. 2008, entire) to estimate the drainage movements are more common knowledge of these streams, aerial overall existing number of territories than between-drainage movements photography, agency reports, and input across the flycatcher’s range in a single (Paxton et al. 2007, p. 77). Juveniles from other resource managers. The year. Since this newer information has disperse the farthest and were the only proximity and connectivity of segments not be analyzed along with the group of flycatchers to connect very to known populations and remainder of the data, the data up to distant populations (Paxton et al. 2007, metapopulation stability were also key 2007 were the best available information p. 74). Banded flycatchers from season- aspects of the flycatcher’s natural for us to identify the overall number of to-season were recorded moving across history we considered in delineating estimated territories known to occur a wide area from 50 m (150 feet) to 444 river segment end points. across a geographic area, such as a km (275 mi) (Paxton et al. 2007, p. 2). In both the Roosevelt and Middle Rio Management Unit or Recovery Unit. Because of the broad range of Grande Management Units, our methods Therefore, the best available information flycatcher movements, it is a challenge identified a large population area where for estimating the number of territories to apply a single distance to characterize the current number of flycatcher rangewide is the compiled information the degree of connectivity of separated territories needed to reach management up through the 2007 breeding season flycatcher breeding sites. However, unit recovery goals has been surpassed (Durst et al. 2008, entire; Sogge and USGS (Paxton et al. 2007, pp. 4, 76, 84, by two and three times, respectively. In Durst 2008). 139, 140) assimilated all of the order to identify stream segments and In order to identify areas with large movement information and concluded end points for critical habitat that flycatcher populations, we first that rapid colonization of flycatcher supports our recovery goals in this considered and defined a ‘‘large’’ breeding sites and increased unique situation, we considered population. We defined a large metapopulation stability could be additional factors such as the known population as a single breeding site or accomplished by establishing breeding fluctuation and persistence of territories collection of smaller connected breeding sites within 30 to 40 km (18 to 25 mi) over time (such as those associated with sites that support 10 or more territories of each other. Flycatchers at these reservoir inundation), territory in a single year. We selected 10 or more breeding sites can disperse or move proximity, and metapopulation stability. territories to identify a large population between sites within the same year or Both Management Units have large because the flycatcher population from year-to-year. This proximity of flycatcher populations located within viability analysis indicates a breeding these sites would increase the the conservation space of reservoirs, site exhibits greatest long-term stability connectivity and stability of the which can produce a large amount of with at least 10 territories (Service 2002, metapopulation and smaller, more habitat and number of territories. But p. 72). Large populations persist longer distant breeding sites. the persistence of these reservoir than small ones, and produce more As a result of USGS’s conclusion, we habitats and territories can also be dispersers capable of emigrating to other decided to use 35 km (22 mi), the lessened as a result of precipitation, populations or colonizing new areas average of the reported range, as a river inflow, and dam operations that (Service 2002, p. 74). In addition, radius to identify an area surrounding affect habitat availability over time. smaller populations with high known large flycatcher breeding sites Therefore, because of the dynamic connectivity to other small populations and the distance to connect smaller fluctuation of habitat and territories can provide as much or more stability populations to identify a large within these reservoirs, we selected than a single isolated larger population population. Because there was no areas of habitat that overall can contain with the same number of territories distinction by USGS of a distance a greater number of territories than are because of the potential to disperse within this 30 to 40 km (18 to 25 mi) identified in the Recovery Plan in order colonizers throughout the network of range that was more valuable to to meet the goals for habitat and breeding sites (Service 2002, p. 75). flycatchers, we believe the average is the territory persistence over time. These Once the distribution and abundance best representation. After a large habitats included portions of reservoirs of flycatcher breeding sites were population area was established, we and streamside habitat outside of these identified and mapped, we considered determined whether other breeding sites reservoirs, which together, can support the degree of connectivity to assign in proximity occurred. If so, this would the goals of territory and habitat

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persistence through time when lake history. We also sought information tributaries in Arizona and southern elevations remain high. With the from other sources through this critical Nevada and Utah found migrating number of current territories far habitat designation process. The flycatchers in consecutive years exceeding recovery goals in these Recovery Plan identified portions of occurring in nearly all study areas and Management Units, we found that some streams for each Management Unit that over half of the survey sites (McLeod et occupied habitats at the perimeter of our would contribute significantly toward al. 2005, pp. 9–11; Koronkiewicz et al. large population areas became less recovery (Service 2002, pp. 86–92). 2006, pp. 11–13). Similarly, migratory important to reach recovery goals. These streams were not listed for the flycatcher movement was regularly Because of the unique situation where purpose of designating critical habitat detected along the Middle Rio Grande the number of territories exceeds the nor were they intended to be the only (Yong and Finch 1997, p. 255). As a numerical goals established in the streams that were important for result of these factors, we expect similar Recovery Plan, we did not identify some recovery, but they did identify streams flycatcher migration behavior for the portions of stream segments with of substantial recovery value. Also, we other major drainages where flycatchers territories along the Rio Grande and Salt have generated additional information breed throughout its range and where River as critical habitat. Although these since the Recovery Plan was completed these locations are included within this areas were occupied at the time of about river segments and whether they designation. Therefore, flycatcher listing and had some of the elements of have or do not have substantial recovery migration habitat is captured within our physical and biological features, they value. Still, the list of stream segments methods for identifying critical habitat were determined not to be essential for described in the Recovery Plan (Service to reach recovery goals, because: (1) We flycatcher conservation and were not 2002, pp. 86–92) provides important are designating areas as broader river included as critical habitat. guidance, especially for Management segments; (2) our areas will be Nearly the entire areas of the San Units where there are few known geographically located across a broad Diego and Santa Ana Management Units flycatcher sites, to guide our critical area of the Southwest encompassing in the Coastal California Recovery Unit habitat designation. Site-specific most of the range of the flycatcher; and were identified as a large population knowledge of these streams, aerial (3) we are identifying areas surrounding area because of the wide distribution photography, agency reports, and input territory and breeding sites where and proximity of occupied streams from other resource managers were also migrant flycatchers are most often segments within them. In contrast to considered. The proximity and detected. other Management Units, our methods connectivity of segments to known Lateral Extent were unable to distinguish more specific populations and metapopulation areas to designate within these stability were also key aspects of the For the lateral extent or width of Management Units. flycatcher’s natural history we flycatcher critical habitat, we Also, our methodology discussed considered in delineating these areas. considered the variety of purposes above was unable to distinguish areas The streams designated as revised riparian habitat serves the flycatcher; within some Management Units where flycatcher critical habitat are described the dynamic nature of rivers and neither large populations nor small below. Those streams not within the riparian habitat; the relationship populations with high connectivity geographical area known to be occupied between the location of rivers, flooding, were known to occur. For example, in at the time of listing were determined to and riparian habitat; and the expected the Amargosa, Santa Cruz, San be essential for flycatcher conservation. boundaries, over time, of these habitats. Francisco, Hassayampa and Agua Fria, The condition or quality of riparian San Juan, Powell, and Lower Rio Grande Migratory Habitat habitat that flycatchers use adjacent to Management Units, there are no known Habitat for migrating flycatchers is streams for breeding, feeding, sheltering, breeding sites with 10 or more captured in this revised designation by cover, dispersal, and migration stopover flycatcher territories, nor are any known our approach to identify critical habitat areas varies. Riparian habitat is territories in high connectivity that as ‘‘river segments’’ and distributing dependent on the location of river create a large population. Similarly, in segments across the flycatcher’s channels, floodplain soils, subsurface some Management Units a large breeding range within the southwestern water, and floodplain shape, and is population and surrounding area was United States. We are currently unable driven by the wide variety of high, identified, but that area was found not to distinguish the value of specific medium, and low flow events. In to be of adequate size to include enough locations along particular streams for addition, manmade factors such as river segments needed to support the flycatcher migration, because stopover diversion ditches or agricultural return number of territories called for in the areas contain broad habitat quality in flows can also influence riparian recovery goals. This situation occurred wide-ranging locations, are only for vegetation distribution. Over time, river in the Little Colorado, Santa Ynez, and short-term use, and have uncertain channels can braid or move from one Santa Clara Management Units. In all of occurrence from year-to-year (Finch et side of the floodplain to the other. these cases, we used the guidance from al. 2000, pp. 73, 76–77). Additionally, Flooding occurs at periodic frequencies the Recovery Plan, local knowledge flycatchers are difficult to distinguish that recharge aquifers and that deposit about habitat, and other information from other flycatcher species and and moisten fine floodplain soils which available to identify additional stream subspecies during migration (Finch et create seedbeds for riparian vegetation segments as important to meet recovery al. 2000, pp. 71–72). Migrant flycatchers germination and growth within these goals, and therefore, essential for the can sometimes be found in unusual boundaries. conservation of flycatcher. locations away from riparian areas In this designation, we consider the When generating the river segments in (Finch et al. 2000, p. 76), but many, if riparian zone where flycatcher habitat the situations where there were few not most, are detected while searching occurs to be the area surrounding the territories to help guide us, we relied for nesting flycatchers (McLeod et al. select river segment that is directly heavily upon recommendations and 2005, pp. 9–11; Ellis et al. 2008, pp. 26– influenced by river functions. The strategies provided in the Recovery Plan 27). An extensive study of flycatcher present boundaries, for mapping and local knowledge of habitat habitat use along the LCR (from Lake purposes, of the lateral extent or conditions, maps, and flycatcher natural Mead to Mexico) and some of its major riparian zone (in other words, the

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surrogate for the delineation of the structures and stations, mining, and strategies describe the importance of lateral boundaries of critical habitat extraction. flycatcher habitat to support stable and within stream segments) were derived growing breeding populations, to Mapping by one of two methods. The area was provide migration stopover areas, to either captured from existing digital When determining critical habitat protect against simultaneous data sources (listed below) or created boundaries within this final rule, we catastrophic loss, to maintain gene flow, through expert visual interpretation of made every effort to avoid including to prevent isolation and extirpation, and remotely sensed data (aerial developed areas such as lands covered to provide colonizers to use new areas. photographs and satellite imagery—also by buildings, pavement, and other Also, the Recovery Plan describes the listed below). GIS technology was structures because such lands lack importance of habitat that supports large utilized throughout the lateral extent physical or biological features for the breeding populations of flycatchers and determination. ESRI, Inc. ArcInfo 8.3 flycatcher. These types of developments small populations that, when in was used to perform all mapping are not often found adjacent to rivers proximity, equal a large population. To functions and image interpretation. Pre- within floodplains, and may not be achieve these goals, the Recovery Plan existing data sources used to assist in found on recent maps. The scale of the describes a recovery strategy of the process of delineating the lateral maps we prepared under the parameters distributing flycatcher habitat that could extent of the riparian zones for this for publication within the Code of hold a specific minimum number of designation included: (1) National Federal Regulations may not reflect the breeding territories across 29 different Wetlands Inventory digital data from the removal of such developed lands. Any Management Units in portions of mid-1980s, 2001, and 2002; (2) Federal such developed lands inadvertently left California, Nevada, Utah, Colorado, Emergency Management Agency 1995, inside critical habitat boundaries shown Arizona, and New Mexico. Q3 100 year flood data; (3) U.S. Census on the maps of this final rule have been We therefore created criteria and Bureau Topologically Integrated excluded by text in the rule and are not methodology to identify areas Geographic Encoding and Referencing designated as critical habitat. Therefore, surrounding large populations and (TIGER); and (4) 2000 digital data. The a Federal action involving these small populations, in proximity, that riparian zone is anticipated to occur developed lands will not trigger section equaled a large population. We used a within the 100-year floodplain. 7 consultation with respect to critical 35-km (22-mi) distance as a radius to Where pre-existing data may not have habitat and the requirement of no identify areas around large flycatcher been available to readily define riparian adverse modification unless the specific populations (those with at least 10 zones, visual interpretation of remotely action would affect the physical or territories) and small populations in sensed data was used to define the biological features in the adjacent high connectivity that together equal a lateral extent. Data sources used in this critical habitat. large population. included: (1) Terraserver online Digital The critical habitat designation is We chose to generate critical habitat Orthophoto Quarter Quads, black and defined by the map or maps, as in ‘‘river segments’’ to account for the white, 1990s era and 2001; (2) USGS modified by any accompanying dynamic aspects of flycatcher riparian Digital Orthophoto Quarter Quads 1997; regulatory text, presented at the end of habitat, the changing locations of (3) USGS aerial photographs, 1 meter, this document in the rule portion. We flycatcher habitat due to these dynamic color-balanced, and true color, 2002; (4) include more detailed information on conditions, population growth, and the Landsat 5 and Landsat 7 Thematic the boundaries of the critical habitat variety of other life-history needs such Mapper, bands 4, 2, 3, 1990–2000; (5) designation in the preamble of this as nest placement, foraging, dispersing, Emerge Corp, 1 meter, true color document. We will make the cover, shelter, and migration habitat. imagery, 2001; (6) Local Agency coordinates or plot points or both on Once these broad areas were Partnership, 2 foot, true color, 2000; and which each map is based available to established, we identified stream (7) NWI aerial photographs, 2001–2002. the public on http:// segments with flycatcher habitat that we We refined all lateral extents for this www.regulations.gov at Docket No. believe will support the numerical designation by creating electronic maps FWS–R2–ES–2011–0053 on our Internet territory and habitat-related recovery of the lateral extent and attributing them site at http://www.fws.gov/southwest/es/ goals for the 29 Management Units according to the following riparian sub- arizona/, and at the field office described in the Recovery Plan. classifications. Riparian developed responsible for the designation (see FOR Some Management Units with areas, as defined below, are not FURTHER INFORMATION CONTACT above). recovery goals do not have known large included in our critical habitat populations or small populations that designation since these areas do not Summary of Criteria Used To Identify equal a large population in high contain the primary constituent Critical Habitat connectivity. Also, in some elements (see Primary Constituent Our initial steps and approach in Management Units, an area may not Elements for the Flycatcher section generating areas for flycatcher critical contain enough habitat to reach the above), are not considered essential to habitat were to identify areas: (1) number of territories stated in the flycatcher conservation and, therefore, Known to be within the specific Recovery Plan. In these instances, we do not meet the definition of critical geographic area occupied by the relied upon the Recovery Plan guidance habitat. We separated riparian areas into flycatcher at the time of listing (from (recovery strategy, stream identification, the following two categories: (1) surveys occurring from 1991 to 1994) and habitat descriptions), flycatcher Riparian Vegetated: This class is used to that contain the physical or biological detections, and local expertise in habitat describe areas still in natural features which may require special quality to identify river segments unvegetated wetlands, water bodies, and management or protections; and (2) that considered essential for the any undeveloped or unmanaged lands are essential to flycatcher conservation conservation of the species. within the approximate riparian zone. based on the Recovery Plan goals. The lateral extent of river segments (2) Riparian Developed: This class is Following the evaluation of the two designated as critical habitat represent used to describe all developed areas, factors above, our goal was to the riparian zone, which is an area that such as urban and suburban incorporate the conservation strategies is most directly influenced by river development, agriculture, utility described in the Recovery Plan. These functions and is anticipated to occur

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within the 100-year floodplain. We designated stream segments occur in and Santa Maria Rivers (including created these boundaries from existing California, Nevada, Utah, Colorado, upper Alamo Lake), Arizona. digital sources and visual interpretation. Arizona and New Mexico and include a Upper Colorado Recovery Unit in Overall, these designated stream total of approximately 1,975 km (1,227 Arizona, Utah, Colorado, and New segments represent flycatcher habitat mi) of streams. The following list Mexico known to be occupied at the time of represents the names of the portions of listing and essential areas that have high streams that are being designated as (13) San Juan Management Unit—Los recovery value. The designated areas flycatcher critical habitat organized by Pinos River, Colorado; San Juan River support stable and growing breeding Recovery and Management Unit. In (north bank), Utah. populations, provide migration stopover order to help further understand the (14) Powell Management Unit—Paria areas, protect against simultaneous location of these designated stream River, Utah. catastrophic loss, maintain gene flow, segments, please see the associated Gila Recovery Unit in Arizona and New prevent isolation and extirpation, and maps found within the Regulation Mexico encourage colonizers to use new areas. Promulgation section of this final rule. All stream segments provide habitat for (15) Verde Management Unit—Verde Coastal California Recovery Unit in a wide distribution of flycatcher River, Arizona. California territories, including areas for (16) Roosevelt Management Unit— population growth to meet numerical (1) Santa Ynez Management Unit— Salt River and Tonto Creek, Arizona. and habitat-related recovery goals. The Santa Ynez River and Mono Creek. (17) Middle Gila and San Pedro designated areas also support other (2) Santa Clara Management Unit— Management Unit—Gila River and San important flycatcher needs such as Santa Clara River, Ventura River, Piru Pedro River, Arizona. migration, dispersal, foraging, and Creek, Castaic Creek, Big Tujunga (18) Upper Gila Management Unit— shelter to reach the geographic Canyon, and San Gabriel River. Gila River in Arizona and New Mexico. distribution and habitat-related recovery (3) Santa Ana Management Unit— (19) Santa Cruz Management Unit— goals. Bear Creek, Mill Creek, Oak Glen Creek, Santa Cruz River, Empire Gulch, and We are designating as critical habitat San Timoteo Creek, Santa Ana River Cienega Creek, Arizona. lands that we have determined were (including portions of Prado Basin), (20) San Francisco Management occupied at the time of listing and Waterman Creek, and Bautista Creek. Unit—San Francisco River, Arizona and contain sufficient elements of physical (4) San Diego Management Unit— New Mexico. or biological features to support life- Santa Margarita River, DeLuz Creek, San (21) Hassayampa and Agua Fria history processes essential for the Luis Rey River, Pilgrim Creek, Agua Management Unit—Hassayampa River, conservation of the species (as defined Hedionda Creek, Santa Ysabel Creek, Arizona. under section 3(5)(A)(i) of the Act), and Temescal Creek, Temecula Creek, Rio Grande Recovery Unit in New lands outside of the geographical area Sweetwater River, and San Diego River. Mexico and Colorado occupied at the time of listing that we Basin and Mojave Recovery Unit in have determined are essential for (22) San Luis Valley Management California and Nevada flycatcher conservation (as defined Unit—Conejos River and Rio Grande, under section 3(5)(A)(ii) of the Act). The (5) Kern Management Unit—South Colorado. occupied stream segments are Fork Kern River (including upper Lake (23) Upper Rio Grande Management designated based on sufficient elements Isabella) and Canebrake Creek, Unit—Coyote Creek, Rio Grande, Rio of physical or biological features being California. Grande del Rancho, and Rio Fernando, present to support flycatcher life (6) Mojave Management Unit—Deep New Mexico. processes. Some segments contain all of Creek, Holcomb Creek, Mojave River, (24) Middle Rio Grande Management the identified elements of physical or and West Fork Mojave River, California. Unit—Rio Grande, New Mexico. biological features and support multiple (7) Salton Management Unit—San Table 1 below lists all the streams life processes. Some segments contain Felipe Creek and Mill Creek, California. included in this revised designation and only some elements of the physical or (8) Amargosa Management Unit— whether they are considered occupied at biological features necessary to support Willow Creek, California; Amargosa the time of listing and whether they are the flycatcher’s particular use of that River, California and Nevada; and five currently considered occupied. habitat. separate riparian areas within Ash We note which streams were within Meadows National Wildlife Refuge, the geographical area known to be Final Critical Habitat Designation Nevada. occupied at time of listing, based upon We are designating stream segments our criteria (1991–1994), and are in 24 Management Units found in six Lower Colorado Recovery Unit in therefore being designated under section Recovery Units as flycatcher critical Nevada, California and Arizona Border, 3(5)(A)(i) of the act because they contain habitat. Following our evaluation and Arizona, Utah, and New Mexico essential physical or biological features analysis under section 4(b)(2) of the Act, (9) Little Colorado Management that require special management or stream segments in five Management Unit—Little Colorado River and West protections. Streams not known to be Units (Owens, Middle Colorado, Hoover Fork Little Colorado River, Arizona. occupied at the time of listing are being to Parker Dam, Parker Dam to Southerly (10) Virgin Management Unit—Virgin designated as critical habitat under International Border, and Lower Rio River, Nevada, Arizona, and Utah. section 3(5)(A)(ii) of the act because Grande Management Units) where (11) Pahranagat Management Unit— they are essential for the conservation of recovery goals occur and critical habitat Pahranagat River, Nevada. the species. We also note which streams was proposed were excluded in their (12) Bill Williams Management Unit— have had flycatcher territories detected entirety (see Exclusions section). The Big Sandy River, Bill Williams River, between 1991 and 2010.

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TABLE 1—PORTION OF STREAMS DESIGNATED FOR FLYCATCHER CRITICAL HABITAT

Known to be occupied at Territories de- Recovery unit Management unit Portion of streams time of listing tected (1991– (1991–1994) 2010)

Coastal California ...... Santa Ynez ...... Mono Creek ...... No No. Santa Ynez River ...... Yes Yes. Santa Clara ...... Big Tujunga Canyon ...... No No. Castaic Creek ...... No No. Piru Creek ...... No Yes. San Gabriel River ...... No Yes. Santa Clara River ...... Yes Yes. Ventura River ...... No No. Santa Ana ...... Bautista Creek ...... No Yes. Bear Creek ...... No Yes. Mill Creek ...... No Yes. Oak Glen Creek ...... No Yes. San Timoteo Creek ...... No Yes. Santa Ana River ...... No Yes. Waterman Creek ...... No Yes. San Diego ...... Agua Hedionda Creek ...... No Yes. DeLuz Creek ...... No Yes. Pilgrim Creek ...... Yes Yes San Diego River ...... No Yes. San Luis Rey River ...... Yes Yes. Santa Margarita River ...... No Yes. Santa Ysabel Creek ...... No Yes. Sweetwater River ...... No Yes. Temecula Creek ...... No Yes. Temescal Creek ...... No No. Basin and Mojave ...... Kern ...... Canebrake Creek ...... No Yes. South Fork Kern River ...... Yes Yes. Mohave ...... Deep Creek ...... No No. West Fork Mojave River ...... No No. Holcomb Creek ...... No Yes. Mojave River ...... No Yes. Salton ...... Mill Creek ...... No Yes. San Felipe Creek ...... No Yes. Amargosa ...... Amargosa River ...... No Yes. Willow Creek ...... No No. Ash Meadows Riparian Areas ...... No Yes. Lower Colorado ...... Little Colorado ...... Little Colorado River ...... Yes Yes. West Fork Little Colorado River .... No No. Virgin ...... Virgin River ...... No Yes. Pahranagat ...... Pahranagat River ...... No Yes. Bill Williams ...... Big Sandy River ...... Yes Yes. Bill Williams River ...... Yes Yes. Santa Maria River ...... Yes Yes. Upper Colorado ...... San Juan ...... San Juan River ...... No Yes. Los Pinos River ...... No Yes. Powell ...... Paria River ...... No No. Gila ...... Verde ...... Verde River ...... Yes Yes. Roosevelt ...... Tonto Creek ...... Yes Yes. Salt River ...... Yes Yes. Middle Gila and San Pedro ...... San Pedro River ...... Yes Yes. Gila River ...... Yes Yes. Upper Gila ...... Gila River ...... Yes Yes. Santa Cruz ...... Santa Cruz River ...... No No. Cienega Creek ...... No Yes. Empire Gulch ...... No Yes. San Francisco ...... San Francisco River ...... Yes Yes. Hassayampa and Agua Fria ...... Hassayampa River ...... No Yes. Rio Grande ...... San Luis Valley ...... Rio Grande ...... Yes Yes. Conejos River ...... No Yes. Upper Rio Grande ...... Coyote Creek ...... Yes Yes. Rio Fernando ...... No Yes. Rio Grande ...... Yes Yes. Rio Grande Del Rancho ...... Yes Yes. Middle Rio Grande ...... Rio Grande ...... Yes Yes.

Approximate land ownership in each habitat occurs is provided below in State where the designated critical Table 2.

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TABLE 2—LAND OWNERSHIP, BY STATE, OF REVISED DESIGNATED CRITICAL HABITAT AREAS FOR SOUTHWESTERN WILLOW FLYCATCHER, LISTED AS APPROXIMATE STREAM LENGTHS IN KM (MI); AND APPROXIMATE AREA IN HA (AC)

State Federal State Private Other/Unclassified Total

AZ ...... 365 (227); 9,869 50 (31); 3,012 (7,443) ... 369 (229); 19,436 0 (0); 0 (0) ...... 784 (487); 32,317 (24,387). (48,026). (79,856). CA ...... 188 (117); 2,688 (6,642) 26 (16); 619 (1,529) ...... 78 (48); 1,089 (2,692) ... 316 (196); 11,470 609 (378); 15,866 (28,342). (39,205). CO ...... 43 (27); 4,063 (10,040) 0 (0); 0 (0) ...... 7 (5); 221 (547) ...... 0 (0); 0 (0) ...... 51 (31); 4,284 (10,586). NV ...... 29 (18); 1,451 (3,584) ... 7 (4); 649 (1,603) ...... 19 (12); 1,383 (3,416) ... 0 (0); 0 (0) ...... 54 (34); 3,482 (8,603). NM ...... 125 (78); 6,318 (15,613) 29 (18); 4,780 (11,812) 248 (154); 14,817 0 (0); 0 (0) ...... 402 (250); 25,916 (36,613). (64,039). UT ...... 41 (25); 1,544 (3,816) ... 0 (0); 15 (38) ...... 35 (22); 1,146 (2,831) ... 0 (0); 0 (0) ...... 76 (47); 2,705 (6,685).

Total ...... 791 (492); 25,933 112 (69); 9,075 (22,424) 756 (470); 38,091 316 (196); 11,470 1,975 (1,227); 84,569 (64,082). (94,125). (28,342). (208,973). Notes: No tribal lands were included in the final revised designation. Totals do not sum because some stream segments have different owner- ship on each side of the bank resulting in those segments being counted twice. Other/Unclassified includes some local government ownership and unclassified segments (where land ownership was not available).

specific information about the southwes.htm. We also note in our occurrence of flycatcher territories descriptions which stream segments Critical Habitat Unit Descriptions within that large population area. If which were proposed for critical habitat We present brief descriptions below there was no known large flycatcher were exempted under section 4(a)(3) of all critical habitat units and reasons nesting population, we provide under the Act or were excluded from why they meet the definition of critical information about known flycatcher critical habitat under section 4(b)(2) of habitat for the flycatcher. The units are distribution and abundance with that the Act. For more explanation of why organized by Recovery Unit and then Management Unit. We next present any stream is being exempted or Management Unit. For each Recovery those stream segments we are excluded, see the discussions under the Unit we provide a broad overview of the designating as critical habitat and Exemptions and Exclusions sections recent distribution and abundance of appropriate location and length below. flycatcher territories. Based upon our descriptions. Any stream segments we All of the designated stream segments criteria, we also specifically list those designate that were not known to be provide flycatcher habitat for breeding, streams designated as critical habitat occupied at the time of listing, we feeding, sheltering, and migration, and within that Recovery Unit that were described as an ‘‘essential’’ segment for subsequently provide metapopulation known to be occupied by flycatchers at flycatcher conservation in order to reach stability, gene flow of the subspecies, the time of listing, and possess the the stated recovery goals for this protection against catastrophic physical or biological features that may Management Unit. We reiterate the population losses, and connectivity require special management description of those designated between neighboring Management Units considerations or protection. Detailed segments that were known to be and Recovery Units (Service 2002, pp. site and territory summary information occupied by flycatchers at the time of 74–75, 86–92). They also provide used for Recovery and Management listing. Finally, we explain how the habitat to help meet the numerical and Units are primarily generated from the critical habitat designation of stream habitat-related goals identified in the USGS Rangewide Database (Sogge and segments supports the science and Recovery Plan (Service 2002, pp. 77– Durst 2008, entire) and Flycatcher conservation goals established in the 92). Most of the segments are a subset Rangewide Report (Durst et al. 2008, Recovery Plan, and for those streams not of those identified in the Recovery Plan entire). occupied at the time of listing, we offer as areas that provide substantial Because of the abundance of information supporting why they are recovery value (Service 2002, pp. D–12– information presented in each considered essential for flycatcher D–15). Since completion of the Management Unit description, this conservation. Recovery Plan, additional segments of paragraph is a brief overview of the For each stream segment being substantial recovery value have been order of information presented in each designated as critical habitat, we identified through continued survey, unit description. For each Management identify the State and County where it analysis, and habitat evaluation, and Unit, we begin by stating the numerical occurs and list the stream length being have been included in this designation territory goal described in the Recovery designated rounded up to the nearest when needed to reach recovery goals. Plan and, in many instances, a brief note tenth of a kilometer and mile. The The distribution and abundance of about flycatcher territory distribution. specific beginning and ending points of territories and habitat within each We next explain whether the each designated stream segment can be designated segment are expected to shift Management Unit supported a large found below in the combination of over time as a result of natural flycatcher nesting population (as textual descriptions and associated disturbance events such as flooding that defined in the Criteria Used To Identify maps for each critical habitat unit in the reshape floodplains, river channels, and Critical Habitat, ‘‘Areas with Large Regulation Promulgation section of this riparian habitat (Service 2002, pp. 18, Populations’’ section) in order to document. In addition, GIS data for all D–11–D–13, D–15). establish the areas where we initially designated stream segments, which focused our selection of stream include more specific lateral extent Coastal California Recovery Unit segments to propose as critical habitat. critical habitat information, may be This Recovery Unit stretches along For Management Units where there was downloaded online at http:// the coast of southern California from a large population, we provide more www.fws.gov/southwest/es/arizona/ just north of Point Conception south to

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the Mexico border. In 2002, 167 flycatcher territories was detected on boundaries of Vandenberg AFB. We are flycatcher territories were estimated to the lower Santa Ynez River in 1996, but exempting this portion of the river from occur in this Recovery Unit (14 percent the known number of territories has designation as critical habitat, under of the rangewide total) (Sogge et al. fluctuated greatly from year-to-year section 4(a)(3) of the Act, based on the 2003); however the most recent 2007 (from 1 to 26) (Sogge and Durst 2008). implementation of their Integrated rangewide assessment estimated that the As a result, more critical habitat than Natural Resources Management Plan number of territories has declined to just the large population area is (INRMP) which provides a benefit to the 120 (9 percent of rangewide total) (Durst expected to be needed to meet the flycatcher (see Exemptions section et al. 2008, p. 12). Since the completion Recovery Plan goal of 75 territories. below). of the Recovery Plan, territories have To help reach the Recovery Plan Santa Clara Management Unit, been distributed along 15 relatively goals, we identified two additional areas California small watersheds, mostly in the of flycatcher habitat on the upper Santa southern third of the Recovery Unit Ynez River that are considered occupied The Recovery Plan describes a goal of (Service 2002, p. 64; Sogge and Durst at the time of listing and a short segment 25 flycatcher territories in the Santa 2008). Unlike most other Recovery of Mono Creek farther upstream outside Clara Management Unit (Service 2002, Units, the Coastal California Unit of our large population area (near p. 84). Flycatcher territories have been possesses many streams in proximity to Gibraltar Reservoir) that was not detected in small numbers and one another. However, most breeding occupied at the time of listing. As a sporadically over a broad area in this sites are small (fewer than five result, we are designating three Santa Management Unit. territories); the largest populations Ynez River segments and a segment of There are no large flycatcher nesting occur along the San Luis Rey, Santa Mono Creek as flycatcher critical populations in the Santa Clara Margarita, and Santa Ynez Rivers habitat. The lower 42.3-km (26.3-mi) Management Unit to help guide us (Service 2002, p. 64). In 2001, all Santa Ynez River segment occurs toward a critical habitat area. As a territories occurred in habitats immediately upstream from Vandenberg result, we sought known flycatcher dominated by native plants, and over 60 AFB. The upper 6.1-km (3.8-mi) and territories and breeding sites, guidance percent were on government-managed 7.6-km (4.7-mi) segments of the Santa from the Recovery Plan, and knowledge lands (Federal, State, and local) (Service Ynez River occur near Gibraltar about stream habitat to determine 2002, p. 64). This Recovery Unit Reservoir. We are also designating the critical habitat segments that may be contains the Santa Ynez, Santa Clara, lowest 2.6 km (1.6 mi) of Mono Creek, within the geographical area known to Santa Ana, and San Diego Management also in Santa Barbara County. be occupied at the time of listing and Units. The stream segments designated The stream segments along the Santa others essential for flycatcher as critical habitat are described below Ynez River were occupied by conservation (see below). Flycatcher under their appropriate Management flycatchers at the time of listing and territories have been detected in small Units. contain the physical or biological numbers in the Santa Clara Management Based upon our occupancy criteria features essential to the conservation of Unit, ranging from zero to seven (see above) within the Coastal California the species which may require special territories annually between 1995 and Recovery Unit, the Santa Ynez (1991), management considerations or 2001 (Sogge and Durst 2008). Three Santa Clara (1994), and San Luis Rey protection, for the reasons described breeding sites have been detected on the (1993) Rivers, and Pilgrim Creek (1994) above. Mono Creek was not occupied at Santa Clara River and two breeding sites are streams that were within the the time of listing, but is an essential each on Piru Creek and the San Gabriel geographical area known to be occupied area for flycatcher conservation in order River (Sogge and Durst 2008). at the time of listing (1991–1994) (Sogge to help meet recovery goals (see below). We are designating as critical habitat and Durst 2008) where we are The Santa Ynez River and its a 75.2 km (46.7 mi) segment of the Santa designating critical habitat segments. tributaries (including Mono Creek and Clara River in Ventura and Los Angeles Below we identify that each listed item other unnamed tributaries) were Counties. These segments were within described in our Special Management described as having substantial recovery the geographical area known to be Considerations or Protection section value in the Recovery Plan (Service occupied by flycatchers at the time of (see above) applies to the streams 2002, p. 86). The Santa Ynez River and listing (Sogge and Durst 2008) and have described in each Management Unit Mono Creek segments are anticipated to the physical or biological features within the Coastal California Recovery provide habitat for metapopulation essential to the conservation of the Unit. stability, gene connectivity through this species which may require special Santa Ynez Management Unit, portion of the flycatcher’s range, management consideration or California protection against catastrophic protection, for the reasons described The Recovery Plan describes a goal of population loss, and population growth above. We are also designating as 75 flycatcher territories in the Santa and colonization potential. As a result, flycatcher critical habitat segments of Ynez Management Unit (Service 2002, these river segments and associated the Ventura River (27.5 km, 17.1 mi) in p. 84). The Santa Ynez River is the only flycatcher habitat are anticipated to Ventura County; and segments of stream in this Management Unit known support the strategy, rationale, and Castaic Creek (4.8 km, 3.0 mi), Piru to have flycatcher territories (Sogge and science of flycatcher conservation in Creek (41.9 km, 26.0 mi), Big Tujunga Durst 2008). order to meet territory and habitat- (4.9 km, 3.0 mi) Canyon, and the San We identified a large flycatcher related recovery goals. Gabriel River (14.2 km, 8.8 mi) in Los nesting population surrounding the A 14.7-km (9.1-mi) portion of the Angeles County. These segments were lowest portion of the Santa Ynez River lower Santa Ynez River segment that not occupied at the time of listing, but in Santa Barbara County, California. was occupied at the time of listing and are essential for flycatcher conservation Flycatcher territories were detected on contains the physical or biological in order to help meet recovery goals, as the Santa Ynez River in 1991 (Sogge and features essential to the conservation of explained below. Durst 2008). A total of four breeding the species which may require special The Santa Clara, Ventura, and San sites are known to occur within our management considerations or Gabriel Rivers, Piru Creek and Big large population area. A high of 26 protection, occurs within the Tujunga Canyon, were identified in the

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Recovery Plan as having substantial Throughout the entire Management designation under section 4(b)(2) of the recovery value in the Santa Clara Unit, a high of 49 territories was Act (see Exclusions section below). Management Unit (Service 2002, p. 86). detected in 2001 (Sogge and Durst Habitat with features essential for the Together with Castaic Creek, these six 2008), but limited on-the-ground flycatcher was also identified within the stream segments are essential to surveys only detected one territory in boundaries of the Ramona Band of flycatcher conservation because they are 2007 (Sogge and Durst 2008). In 2007, Cahuilla Reservation on Bautista Creek. anticipated to provide habitat for Durst et al. (2008, p. 12) estimated that We are excluding these tribal lands from metapopulation stability, gene 28 territories occurred in this the critical habitat designation under connectivity through this portion of the Management Unit. The combination of section 4(b)(2) of the Act (see Exclusions flycatcher’s range, protection against these streams provides riparian habitat section below). catastrophic population loss, and for breeding, migrating, dispersing, non- This diverse and widely distributed population growth and colonization breeding and territorial flycatchers, group of seven streams was identified in potential. As a result, these river metapopulation stability, gene flow, the Recovery Plan (although Oak Glen segments and associated flycatcher connectivity, population growth, and Creek was not specifically named as a habitat are anticipated to support the prevention against catastrophic loss. tributary to the Santa Ana River) as strategy, rationale, and science of The Santa Ana River is the single areas of substantial recovery value flycatcher conservation in order to meet largest river system in southern (Service 2002, p. 86). Together, these territory and habitat-related recovery California with flycatchers distributed stream segments are essential for goals. throughout the stream from its flycatcher conservation because they are Habitat along the Santa Clara River headwaters and tributaries in the San anticipated to provide habitat for east of Interstate 5 (4.4 km, 2.7 mi) with Bernardino Mountains in San metapopulation stability, gene features essential for flycatcher Bernardino County, downstream to connectivity through this portion of the conservation, owned and managed by Riverside County. We are designating flycatcher’s range, protection against Newall Land and Farming Company, is three segments—an upper 42.5-km catastrophic population loss, and excluded from this critical habitat (26.4-mi) segment in the San Bernardino provide for population growth and designation based upon the habitat National Forest, a middle 13.4-km (8.3- colonization potential. As a result, these management provided under a mi) segment in San Bernardino County river segments and associated flycatcher conservation easement (see Exclusions (just above the Riverside County line), habitat are anticipated to support the section below). and a lower 1.9 km (1.2 mi) portion strategy, rationale, and science of (consisting of about 4 separate parcels) flycatcher conservation in order to meet Santa Ana Management Unit, California located about 2.3 km (1.4 mi) northeast territory and habitat-related recovery The Recovery Plan describes a goal of of Prado Basin flood control dam—of goals. 50 flycatcher territories in the Santa Ana the Santa Ana River in San Bernardino San Diego Management Unit, California Management Unit (Service 2002, p. 84). County and other segments with high Flycatcher territories have been detected connectivity near its headwaters. In San The Recovery Plan describes a goal of from the headwaters and tributaries of Bernardino County we are designating 125 flycatcher territories in the San the Santa Ana River in the San 5.2 km (3.2 mi) of Waterman Creek Diego Management Unit (Service 2002, Bernardino Mountains in San (including portions of the Left and Right p. 84). Flycatcher territories have been Bernardino County, California, down to Fork), 14.7 km (9.2 mi) of Bear Creek, detected throughout this Management breeding sites in Riverside County at 4.1 km (2.6 mi) of San Timoteo Creek, Unit primarily along the rivers and Prado Basin and other nearby separate 19.3 km (12.0 mi) of Mill Creek, and 4.7 tributaries of the largest river drainages streams. None of the seven streams km (2.9 mi) of Oak Glen Creek as critical in the area, such as the San Luis Rey, (eight stream segments) within the Santa habitat. Santa Margarita, and San Diego Rivers. Ana Management Unit were within the We are designating three segments of We identified a large flycatcher geographical area known to be occupied Bautista Creek on Federal Lands within nesting population that includes nearly at listing; however, all seven streams the San Bernardino National Forest. The all of the streams within the San Diego have had territories identified since most eastern segment occurs for 2.0 km Management Unit. Within the San Diego listing. (1.3 mi), upstream of the Ramona Band Management Unit, about 24 breeding We identified a large flycatcher of Cahuilla Reservation. West of tribal sites are known to occur (Durst et al. nesting population that surrounds the land is an 11.4-km (7.1-mi) stream 2008, p. 12). A high of 86 flycatcher Santa Ana River and its tributaries in segment that extends through the San territories were detected in 2001 (Sogge San Bernardino and Riverside Counties. Bernardino National Forest until a and Durst 2008). In 2003, Durst et al. Because of the wide distribution and segment of private land occurs. West of (2005, p. 10) estimated a total of 100 close proximity of flycatcher territories, this portion of private land is another territories for the entire San Diego nearly all the streams within the Santa San Bernardino National Forest segment Management Unit, with 86 territories on Ana Management Unit were included in that is 5.9 km (3.7 mi) long. San Luis Rey and Santa Margarita the large population area. A survey in Portions of the Santa Ana Watershed Rivers. In 2007, Durst et al. (2008, p. 11) 2007 detected 30 breeding sites along in Riverside County identified as being estimated a total of 77 territories at 24 the Santa Ana River (Durst et al. 2008, essential for flycatcher conservation (the breeding sites for the entire San Diego p. 11). Since 1995, flycatcher territories lower Santa Ana River (including Prado Management Unit, with 69 territories at have been detected along the Santa Ana Basin), San Timoteo Creek, and Bautista 12 breeding sites on these two river River, and tributaries such as Bear Creek) fall within the boundaries of the drainages. Creek, Mill Creek, Oak Glen Creek, Western Riverside County Multiple Within this large population area, we Waterman Creek, San Timoteo Creek, Species Habitat Conservation Plan identified flycatcher habitat on 18 and Bautista Creek (Sogge and Durst (Western Riverside County MSHCP). All different streams within the San Diego 2008). While breeding sites are non-Federal and tribal lands that fall Management Unit that occur in San numerous, the number of territories within the Western Riverside County Diego, Riverside, and Orange Counties, detected at each site was typically less Multispecies Habitat Conservation Plan California. The streams we identified in than five (Sogge and Durst 2008). are being excluded from critical habitat San Diego County are: San Mateo Creek,

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Cristianitos Creek, San Onofre Creek, mi) and then downstream along the Proposed critical habitat on Can˜ ada Las Flores Creek, Las Pulgas Creek, mainstem Agua Hedionda Creek for 2.5 Gobernadora Creek identified within the Fallbrook Creek, Santa Margarita River, km (1.6 mi). A single breeding site and boundaries of the Orange County DeLuz Creek, San Luis Rey River (two flycatcher territory was detected on Southern Subarea Plan is being segments), Pilgrim Creek, Agua Agua Hedionda Creek in 1998 and 1999 excluded from this critical habitat Hedionda Creek, San Dieguito River, (Sogge and Durst 2008). The segments of designation under section 4(b)(2) of the Santa Ysabel Creek, San Diego River Agua Hedionda Creek were not within Act (see Exclusions section below). (two segments), Temescal Creek, and the geographical area known to be Proposed critical habitat on the San Sweetwater River. A segment of occupied at the time of listing, but are Luis Rey River was identified within the Temecula Creek travels across San essential for conservation in order to boundaries of tribal lands of the Pala Diego and Riverside Counties and a meet recovery goals. Band of Luisen˜ o Mission, Rincon Band Can˜ ada Gobernadora Creek segment We are designating joining segments of Luisen˜ o Mission Indians, and La Jolla occurs in Orange County. of Temescal Creek (7.6 km, 4.7 mi) and Band of Luisen˜ o Indians. We are The longest two streams in the San Santa Ysabel River (6.5 km, 4.0 mi) in excluding these tribal lands from the Diego Management Unit are the San San Diego County. Both segments are critical habitat designation under Luis Rey and Santa Margarita Rivers, found upstream of known breeding sites section 4(b)(2) of the Act (see Exclusions which contain the largest numbers of (within areas that were proposed as section below). flycatcher territories within this critical habitat but are being excluded Proposed critical habitat on the San Management Unit. In addition to these from the revised final designation). Diego River was identified within the two streams, we are designating a These two upstream segments currently boundaries of tribal lands of the Barona collection of smaller streams within the provide habitat for dispersing and Group of Capitan Grande Band of Unit. migrating flycatchers and locations for Mission Indians and the Viejas (Baron We are designating a 9.3-km (5.8-mi) population growth or discovery of Long) Group of Capitan Grande Band of segment of the Santa Margarita River undetected territories. Mission Indians of the Capitan Grande and a 3.3-km (2.1-mi) segment of De Luz Band of Diegueno Mission Indians. We We are designating a 5.2-km (3.2-mi) Creek in San Diego County, upstream of are excluding these tribal lands from the segment of Temecula Creek in San Marine Corps Base, Camp Pendleton critical habitat designation under Diego County. Two breeding sites are (Camp Pendleton). Territories have been section 4(b)(2) of the Act (see Exclusions known from Temecula Creek, with one detected on the Santa Margarita River section below). occurring on the designated segment. on Camp Pendleton. The segment Critical habitat considered within the Territories were first detected in 1997, upstream from Camp Pendleton boundaries of Marine Corps Base, Camp and Sogge and Durst (2008) reported a maintains a diversity of riparian Pendleton on Cristianitos Creek, San single territory for 2003. A 2007 survey vegetation used by dispersing and Mateo Creek, San Onofre Creek, Los of Temecula Creek did not identify any migrating flycatchers and the ability to Flores/Las Pulgas Creek, Pilgrim Creek, develop breeding habitat for population territories (Sogge and Durst 2008). DeLuz Creek, and the Santa Margarita growth or discovery of undetected On the San Diego River north of the River was exempted from this critical territories. El Capitan Reservoir, we are designating habitat designation (76 FR 50542, We are designating seven segments of a 3.8-km (2.4-mi) segment downstream August 15, 2011, p. 50579). Critical the San Luis Rey River and a 5-km (3.1- and 2.2-km (1.4-mi) segment upstream habitat considered on portions of the mi) segment of Pilgrim Creek in San of land (proposed but excluded from Santa Margarita River located within the Diego County. Four separate upper San flycatcher critical habitat) that is jointly boundaries of the Seal Beach Naval Luis Rey segments of critical habitat managed by the Barona Group of Weapons Station, Fallbrook Detachment occur upstream (7.4 km, 4.6 mi), Capitan Grande Band of Mission Indians was also exempted from this critical between (0.8 km, 0.5 mi and 0.9 km, 0.6 and the Viejas (Baron Long) Group of habitat designation (76 FR 50542, mi), and downstream (3.1 km, 1.9 mi) of Capitan Grande Band of Mission August 15, 2011, p. 50580) (see the La Jolla Band of Luisen˜ o Indians and Indians. Territories in this stream were Exemptions section below). the Rincon Band of Luisen˜ o Mission not identified at listing, but two The San Luis Rey River and Pilgrim Indians tribal lands from Lake Henshaw territories were detected in 2001 (USGS Creek are the only streams in this downstream to the Puma Valley Country 2007). management unit within the Club. The western most three segments Proposed critical habitat on the San geographical area known to be occupied of the San Luis Rey River (30.8 km, 19.1 Dieguito River, San Diego River, non- by flycatchers at the time of listing. The mi; 5.1 km; 3.2 mi; and 8.5 km, 5.3 mi) Federal lands on the Sweetwater River, remaining critical habitat stream occur surrounding the Pala Band of and a portion of Santa Ysabel Creek segments will help reach flycatcher Luisen˜ o Mission Indians tribal lands within the boundaries of the San Diego recovery goals within the San Diego from Interstate 5 upstream to the Puma County MSCP are being excluded from Management Unit. Collectively, these Valley Country Club. Flycatcher this critical habitat designation under segments contain essential features for breeding sites have been detected since section 4(b)(2) of the Act. However, we breeding, non-breeding, territorial, 1991 on Pilgrim Creek and the San Luis are designating 4.5 km (2.8 mi) of migrating, and dispersing flycatchers Rey River. Durst et al. (2008, p. 11) federally owned lands on the and help provide metapopulation reported 55 territories from the San Luis Sweetwater River within the boundaries stability, population growth, gene flow, Rey River drainage. A 2007 survey of of the San Diego County MSCP (see connectivity, and protection against Pilgrim Creek did not identify any Exclusions section below). catastrophic losses. territories (Durst et al. 2008, p. 28). Proposed critical habitat on Agua We are designating a segment of Agua Hedionda Creek identified within the Basin and Mojave Recovery Unit Hedionda Creek, which include small boundaries of the City of Carlsbad’s The Basin and Mojave Recovery Unit portions of the right and left forks. The Habitat Management Plan is being is comprised of a broad geographic area upstream forks extend from La Mirada excluded from this critical habitat including the arid interior lands of Drive (right fork) (0.4 km, 0.2 mi) and designation under section 4(b)(2) of the southern California and a small portion Sycamore Avenue (left fork) (1.0 km, 0.6 Act (see Exclusions section below). of extreme southwestern Nevada. In

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2002, there were a total of 69 known The Owens River is the only stream flycatcher conservation. Canebrake flycatcher territories estimated to occur identified in the Recovery Plan as Creek (a tributary to the South Fork (7 percent of the rangewide total), but having substantial recovery value Kern River) was not within the have declined to an estimated 51 within the Owens Management Unit geographical area known to be occupied territories in 2007 (Durst et al. 2008. (Service 2002, p. 88). The Owens River at the time of listing, but territories were p.12). With the exception of breeding segment is anticipated to provide detected in 1998 (Sogge and Durst sites on the Owens and Kern Rivers, all habitat for metapopulation stability, 2008). known breeding sites have fewer than gene connectivity through this portion We are designating as critical habitat five territories (Service 2002, p.64). As of the flycatcher’s range, protection a 23.6-km (14.6-mi) portion of the South of 2002, all flycatcher territories were in against catastrophic population loss, Fork Kern River (including the upper riparian habitats dominated by native and population growth and colonization 1.0-km (0.6-mi) portion of Lake Isabella) plants, and approximately 70 percent potential. As a result, this river segment and a 1.7-km (1.0-mi) segment of are on privately owned lands (Service and associated flycatcher habitat is Canebrake Creek in Kern County, 2002, p. 64). Because there has been anticipated to support the strategy, California. Along this segment of the little change in the amount of known rationale, and science of flycatcher South Fork Kern River, two pieces of flycatcher breeding sites since conservation in order to meet territory private land that are woven within this completion of the Recovery Plan and the and habitat-related recovery goals. segment, the Hafenfeld Ranch (0.30 km, number of estimated territories has The flycatcher habitat essential for 0.20 mi of stream on the south side of declined, flycatcher habitat use and conservation identified along the Owens the river) and Sprague Ranch (4.0 km, land ownership are likely similar today. River is being managed by the Los 2.5 mi on north side of the river), are The Recovery Unit contains the Owens, Angeles Department of Water and Power being excluded from the final Kern, Mojave, Salton, and Amargosa (LADWP) and is being conserved designation (see below and Exclusions Management Units. through implementation of their section). Based upon our occupancy criteria Southwestern Willow Flycatcher The South Fork Kern River segment (see above), within the Basin and Conservation Strategy. LADWP entered was the lone segment identified within Mojave Recovery Unit, the South Fork into a Memorandum of Understanding this Management Unit as having Kern (1993) and Owens Rivers (1993) with the Service to implement these substantial recovery value in the are streams that were within the conservation actions. As a result, the Recovery Plan (Service 2002, p. 88). The geographical area known to be occupied entire 128.5-km (79.8-mi) Owens River, South Fork Kern River and the in Inyo and Mono Counties, California, at the time of listing (1991–1994) (Sogge additional Canebrake Creek segment are is being excluded from this critical and Durst 2008). Below we identify that important for flycatcher conservation habitat designation (see Exclusions each listed item described in our because they are anticipated to provide section below). Special Management Considerations or habitat for metapopulation stability, Protection section (see above) applied to Kern Management Unit, California gene connectivity through this portion the streams described in each The Recovery Plan describes a goal of of the flycatcher’s range, protection Management Unit within the Basin and 75 flycatcher territories in the Kern against catastrophic population loss, Mojave Recovery Unit. Management Unit (Service 2002, p. 84). and population growth and colonization potential. As a result, these river Owens Management Unit, California The South Fork Kern River and Canebrake Creek within Kern County, segments and associated flycatcher The Recovery Plan describes a goal of California, are the only streams known habitat are anticipated to support the 50 flycatcher territories in the Owens to have flycatcher territories within this strategy, rationale, and science of Management Unit (Service 2002, p. 84). Management Unit. flycatcher conservation in order to meet The Owens River is the only stream in We identified a large flycatcher territory and habitat-related recovery the Management Unit known to have nesting population along the lower goals. flycatcher territories and is the most portion of the South Fork Kern River. Flycatcher habitat on the Hafenfeld northern in the Basin and Mojave Flycatchers were first detected nesting Ranch along the South Fork of the Kern Recovery Unit. on the South Fork Kern River in 1993 River is being excluded under section We identified a large flycatcher and have been detected annually 4(b)(2) of the Act due to a conservation nesting population along the Owens through at least 2007 (Sogge and Durst easement established with the National River within Mono and Inyo Counties, 2008). A high of 38 territories were Resource Conservation Service (NRCS) California. Nesting flycatchers have detected in 1997 within this specific to protecting flycatcher habitat. been detected at four sites within this Management Unit (Sogge and Durst As a result of the habitat protections area, with a high of 29 territories 2008). The South Fork Kern River is provided through this easement, this detected in 1999 (Sogge and Durst within the geographical area known to property is being excluded from this 2008). Within this large population area, be occupied by flycatchers at the time critical habitat designation (see we proposed as critical habitat a 128.5- of listing, and contains the physical or Exclusions section below). km (79.9-mi) continuous segment of the biological features essential to the Flycatcher habitat on the Sprague Owens River (from Long Valley Dam to conservation of the species, which may Ranch along the South Fork of the Kern just north of Tinemaha Reservoir). require special management River is being excluded under section This segment of the Owens River is considerations or protection, as 4(b)(2) of the Act due to protections within the geographical area known to described above. assured by their long-term commitments be occupied by flycatchers at the time Because of the need to increase the to management programs specific to the of listing, and contains the physical or abundance of flycatcher territories to riparian habitat and needs of the biological features essential to the reach recovery goals in the Kern flycatcher. The Sprague Ranch was conservation of the species, which may Management Unit, we also identified a acquired specifically for flycatcher require special management small portion of Canebrake Creek in conservation and is co-managed by the considerations or protection, for the Kern County within our large Corps, the California Department of Fish reasons described above. population areas as being essential to and Game (CDFG), and the National

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Audubon Society (Audubon) (see gene connectivity through this portion essential to flycatcher conservation Exclusions section below). of the flycatcher’s range, protection because they are anticipated to provide against catastrophic population loss, habitat for metapopulation stability, Mojave Management Unit, California and population growth and colonization gene connectivity through this portion The Recovery Plan describes a goal of potential. As a result, these river of the flycatcher’s range, protection 25 territories in the Mojave Management segments and associated flycatcher against catastrophic population loss, Unit (Service 2002, p. 84). The Mojave habitat are anticipated to support the and population growth and colonization River and Holcomb Creek are the only strategy, rationale, and science of potential. As a result, these river streams known to have flycatcher flycatcher conservation in order to meet segments and associated flycatcher territories within the Mojave territory and habitat-related recovery habitat are anticipated to support the Management Unit (Sogge and Durst goals. strategy, rationale, and science of 2008). flycatcher conservation in order to meet Salton Management Unit, California There are no large flycatcher nesting territory and habitat-related recovery populations in the Mojave Management The Recovery Plan describes a goal of goals. Unit to help guide us toward a critical 25 flycatcher territories in the Salton A small portion of San Felipe Creek habitat area, and no areas were known Management Unit (Service 2002, p. 84). (1.6 km, 1.0 mi) that occurs within the to be occupied at the time of listing. A single known flycatcher breeding site Iipay Nation of Santa Ysabel, California Therefore, to identify the areas that occurs along San Felipe Creek in this (formerly the Santa Ysabel Band of would contribute to meeting recovery Management Unit. Diegueno Mission Indians of the Santa goals for this Management Unit, we There are no large flycatcher nesting Ysabel Reservation), was identified as used information based on currently populations solely in the Salton having features essential to the known flycatcher territories and Management Unit, and no areas were flycatcher. Because of our partnership breeding sites, guidance from the within the geographical area known to with the Tribe toward conservation of Recovery Plan, and knowledge about be occupied at the time of listing. flycatcher habitat, the portion of San stream habitat to determine areas However, portions of the Salton Felipe Creek that occurs on the Iipay essential for flycatcher conservation. Management Unit were part of a large Nation lands is being excluded from the Flycatchers were first detected nesting population area because of the final critical habitat designation under on the Mojave River in 1995 and proximity of flycatcher territories in the section 4(b)(2) of the Act (see Exclusions Holcomb Creek in 1999. A total of five adjacent San Diego and Santa Ana section below). breeding sites occur along the Mojave Management Units. Therefore, to River and one site at Holcomb Creek identify the areas that would contribute Amargosa Management Unit, California (Sogge and Durst 2008). A high of 12 to meeting recovery goals for this and Nevada territories were detected at these Management Unit, we used information The Recovery Plan describes a goal of breeding sites in 2001 (Sogge and Durst based on currently known flycatcher 25 flycatcher territories in the Amargosa 2008). In addition, we found additional territories and breeding sites, guidance Management Unit (Service 2002, p. 84). areas that would contribute to meeting from the Recovery Plan, and knowledge Flycatcher territories have been detected recovery goals in the West Fork Mojave about stream habitat to determine areas in small numbers within this River and Deep Creek. essential for flycatcher conservation (see Management Unit. We are designating as flycatcher below). From 1998 to 2002, flycatcher There are no large flycatcher nesting critical habitat a 35.7-km (22.2-mi) territories were detected in small populations in the Amargosa segment of the Mojave River, an 11.2-km numbers (2 to 4 territories) at single Management Unit to help guide us (6.9-mi) segment of the West Fork breeding site on San Felipe Creek toward a critical habitat area, and no Mojave River, a 19.6-km (12.2-mi) within this Management Unit (Sogge areas were within the geographical area segment of Holcomb Creek, and a 20.0- and Durst 2008). known to be occupied at the time of km (12.5-mi) segment of Deep Creek We are designating as flycatcher listing. Therefore, to identify the areas (including Mojave River Forks critical habitat a 19.7-km (12.3-mi) that would contribute to meeting Reservoir) in San Bernardino County, segment of San Felipe Creek and a short recovery goals for this Management California, near the Town of Victorville. 0.9-km (0.6 mi) segment of Mill Creek in Unit, we used information based on Deep Creek connects Holcomb Creek San Diego County, California. This short currently known flycatcher territories with the Mojave Forks Reservoir. All of portion of Mill Creek is connected to the and breeding sites, guidance from the these segments were not within the Mill Creek segment within the Santa Recovery Plan, and knowledge about geographical area known to be occupied Ana Management Unit. We find that stream habitat to determine areas at the time of listing, but are essential both of the segments are essential for essential for flycatcher conservation (see for flycatcher conservation because they flycatcher conservation because they below). will help meet recovery goals. will help meet recovery goals. Within the Amargosa Management Three of these streams (Mojave River, Although the San Felipe Creek Unit, one breeding site has been West Fork Mojave River, and Deep segment proposed as critical habitat was detected on the Amargosa River and two Creek) were identified as having the only river segment identified in the breeding sites are known within the Ash substantial recovery value in the Recovery Plan as having substantial Meadows NWR (Sogge and Durst 2008). Recovery Plan (Service 2002, p. 88). recovery value (Service 2002, p. 88), the From 1998 to 2007, one to seven Holcomb Creek was not specifically additional Mill Creek segment was territories were detected at these identified in the Recovery Plan, but identified within the Santa Ana breeding sites within this Management since flycatcher territories have been Management Unit as having substantial Unit (Sogge and Durst 2008). Therefore, detected there we find it also important recovery value (Service 2002, p.88). As we sought additional areas for critical to meet recovery goals. Together, these a result, the San Felipe and Mill Creek habitat that could contribute to recovery four critical habitat segments are segments, along with the other goals in this Management Unit. essential to flycatcher conservation populations and river segments in We refined our proposal within the because they are anticipated to provide proximity within the adjacent San Diego Amargosa Management Unit in our July habitat for metapopulation stability, and Santa Ana Management Units are 12, 2012 (77 FR 41147), Notice of

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Availability, by identifying five specific 150 territories were estimated to occur We identified a large flycatcher stream segments and their management within this Recovery Unit (also 11 nesting population surrounding the within the Ash Meadows NWR, in Nye percent of the rangewide total) (Durst et Little Colorado River, near the Town of County, Nevada. These areas were not al. 2008, p. 12). Most sites included Greer in Apache County, Arizona. within the geographical area known to fewer than 5 territories; the largest Flycatcher territories have been detected be occupied by the flycatcher at the time populations (most of which are fewer along the Little Colorado River, Zuni of listing. than 10 territories) are found on the Bill River, and Rio Nutria since 1993. A high We are designating as flycatcher Williams, Virgin, and Pahranagat Rivers of 16 territories were detected on these critical habitat five areas on the Ash (Service 2002, p. 64). Approximately 69 river segments in 1996, but known Meadows NWR in Nye County, Nevada: percent of territories are found on territories have declined, with only two Soda Spring segment (0.5 km, 0.3 mi); government-managed lands and 8 and six territories detected in 2005 and Lower Fairbanks segment (0.8 km, 0.5 percent are on tribal lands (Service 2006, respectively (Sogge and Durst mi); Crystal Reservoir segment (0.5 km, 2002, p. 64). Habitat characteristics 2008). Because of the need to increase 0.3 mi); North Tubbs segment (0.2 km, range from purely native (including the abundance of flycatcher territories to 0.1 mi); and South Tubbs segment (0.4 high-elevation and low-elevation reach recovery goals, we also identified km, 0.2 mi). We are also designating willow) to exotic (primarily tamarisk)- the Zuni River and Rio Nutria in segments of the Amargosa River (12.3 dominated stands (Service 2002, p. 64). McKinley County, New Mexico, and the km, 7.7 mi) and Willow Creek (3.5 km, Because of the similarity in abundance West Fork Little Colorado River, in 2.2 mi) in Inyo and San Bernardino and distribution of territories since Apache County, Arizona. No flycatcher Counties, California. No known 2002, these land ownership and habitat- territories are known from the West breeding sites have yet to be detected on use statistics are likely similar today. Fork Little Colorado River. the Amargosa River and Willow Creek This Recovery Unit contains the Little We are designating as flycatcher segments in California. None of the Colorado, Middle Colorado, Virgin, critical habitat a contiguous 8.8-km (5.5- segments were within the geographical Pahranagat, Bill Williams, Hoover to mi) segment of the West Fork Little area known to be occupied at the time Parker Dam, and Parker Dam to Colorado River and a 17.6-km (10.9-mi) of listing. Southerly International Border segment of the Little Colorado River. The Ash Meadows NWR and the Management Units. This West Fork and Little Colorado Amargosa River in California, were River segment begins where USFS Based upon our occupancy criteria described in the Recovery Plan as (Forest Service) Road 113 crosses the (see above), within the Lower Colorado having substantial recovery value West Fork and extends downstream to Recovery Unit, the Colorado (1993), (Service 2002, p. 88). Willow Creek was its confluence with the Little Colorado Little Colorado (1993), Bill Williams also determined to be essential in order River, through the Town of Greer, and (1994), Big Sandy (1994), Santa Maria to reach recovery goals in this ends at the Diversion Ditch. The Little Management Unit. Together, these (1994), and Zuni (1993) Rivers, and Rio Colorado River was within the segments are essential to flycatcher Nutria (1993) are streams that were geographical area known to be occupied conservation because they are within the geographical area known to at the time of listing, and contains the anticipated to provide habitat for be occupied at the time of listing (1991– physical or biological features essential metapopulation stability, gene 1994) (Sogge and Durst 2008) where we to the conservation of the species which connectivity through this portion of the proposed critical habitat segments. At may require special management flycatcher’s range, protection against the time of listing only specific sites on considerations or protection, as catastrophic population loss, and the Colorado River within the Middle described above. The West Fork Little population growth and colonization Colorado Management Unit were known Colorado River is not within the potential. As a result, these river to be specifically occupied with geographical area known to be occupied segments and associated flycatcher territories, but based upon our criteria at the time of listing, but is essential to habitat are anticipated to support the and the wide-ranging nature of this bird flycatcher conservation of the flycatcher strategy, rationale, and science of as a neotropical migrant and its use of in order to meet recovery goals, as flycatcher conservation in order to meet migration stop-over habitat, we also described above. territory and habitat-related recovery consider the Colorado River within the The Little Colorado River and the goals. Hoover to Parker Dam and Parker Dam West Fork Little Colorado River to Southerly International Border segments were identified in the Lower Colorado Recovery Unit Management Units occupied at the time Recovery Plan as areas with substantial This is a geographically large and of listing. Below we identify that each recovery value (Service 2002, p. 89). ecologically diverse Recovery Unit, listed item described in our Special These two stream segments are encompassing the Colorado River and Management Considerations or anticipated to provide habitat for its major tributaries (such as the Virgin, Protection section (see above) applies to metapopulation stability, gene Pahranagat, Muddy, and Little Colorado the streams described in each connectivity through this portion of the Rivers) from the high-elevation streams Management Unit within the Lower flycatcher’s range, protection against in White Mountains of East-Central Colorado Recovery Unit. catastrophic population loss, and Arizona and Central Western New Little Colorado Management Unit, population growth and colonization Mexico to the mainstem Colorado River Arizona and New Mexico potential. As a result, these river through the Grand Canyon downstream segments and associated flycatcher through the arid lands along the LCR to The Recovery Plan describes a goal of habitat are anticipated to support the the Mexico border (Service 2002, p. 64). 50 flycatcher territories in the Little strategy, rationale, and science of In 2002, despite its size, the Lower Colorado Management Unit (Service flycatcher conservation in order to meet Colorado Recovery Unit had only 127 2002, p. 84). Flycatcher territories have territory and habitat-related recovery known flycatcher territories (11 percent been detected on the Little Colorado and goals. of the rangewide total), most of which Zuni Rivers and Rio Nutria within this Proposed segments along the Rio occur away from the mainstem Colorado large area along the New Mexico and Nutria (55.4 km, 34.4 mi) and Zuni River (Sogge et al. 2003, p. 10). In 2007, Arizona border (Sogge and Durst 2008). River (35.8 km, 22.2 mi), occurring on

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Zuni Pueblo in New Mexico, are within River we are designating as critical science of flycatcher conservation in the geographical area known to be habitat within the Virgin River order to meet territory and habitat- occupied by flycatchers at the time of Management Unit is anticipated to related recovery goals. listing, and contain the physical or provide habitat for metapopulation The conservation space of Lake Mead biological features essential to the stability, gene connectivity through this and the Colorado River immediately conservation of the species which may portion of the flycatcher’s range, upstream is within the planning area of require special management protection against catastrophic the LCR Multi-Species Conservation considerations or protection. Because of population loss, and population growth Plan (LCR MSCP) up to full pool our partnership with Zuni Pueblo and colonization potential. As a result, elevation of Lake Mead. The full pool toward wildlife conservation, and their this river segment and associated elevation is defined by water surface development, completion, and flycatcher habitat are anticipated to elevation 1,229 feet National Geodetic implementation of actions described in support the strategy, rationale, and Vertical Datum, which extends up to their Flycatcher Management Plan, we science of flycatcher conservation in near river mile 235 at Separation have excluded the Rio Nutria and Zuni order to meet territory and habitat- Canyon. The Hualapai Nation, which River stream segments that occur on related recovery goals. also occurs within this segment, is also Zuni Pueblo under section 4(b)(2) of the within the planning area of the LCR Middle Colorado Management Unit, Act (see Exclusions section below). MSCP. The Nation developed, Arizona completed, and is implementing actions Virgin Management Unit, Utah, Arizona The Recovery Plan describes a goal of described in their Flycatcher and Nevada 25 flycatcher territories in the Middle Management Plan. As a result of the The Recovery Plan describes a goal of Colorado Management Unit (Service upper portion of Lake Mead and the 100 flycatcher territories in the Virgin 2002, p. 84). Colorado River through river mile 235 Management Unit (Service 2002, p. 84). We identified a large flycatcher being included in the planning area of Flycatcher territories have been detected nesting population along the lower the LCR MSCP, this entire segment is along a broad area of the Virgin River portion of the Colorado River within the being excluded from this critical habitat within this Management Unit through Grand Canyon (including upper Lake designation under section 4(b)(2) of the the States of Utah, Arizona, and Nevada Mead) in Mohave County, Arizona. Act (see Exclusions section below). (Sogge and Durst 2008). Flycatchers were first detected nesting We identified a large flycatcher along the Colorado River within the Pahranagat Management Unit, Nevada nesting population along an essential Middle Colorado Management Unit in The Recovery Plan describes a goal of segment of the Virgin River where it 1993. A total of 16 breeding sites have 50 flycatcher territories in the occurs through Washington County, been detected in our selected segment Pahranagat Management Unit (Service Utah; Mohave County, Arizona; and through 2007. Also, a high of 16 2002, p. 84). Clark County, Nevada. Flycatchers were territories was detected within this We identified a large flycatcher first detected nesting on this portion of Management Unit in 1998 (Sogge and nesting population along the Pahranagat the Virgin River in 1995. A total of Durst 2008), but has declined to an River and the Muddy River. Flycatchers seven breeding sites have been detected estimated 4 territories in 2007 (Durst et were first detected nesting on these within this large population area al. 2008, p. 12). portions of the Pahranagat and Muddy through 2007 (Durst et al. 2008, p. 12). We proposed as critical habitat a 74.1- Rivers in 1997. Through 2007, a total of Also, a high of 43 territories were km (46.0-mi) segment of the Colorado three breeding sites were known to estimated to occur within this River that extends from the middle of occur within these segments, with a Management Unit in 2007 (Durst et al. Lake Mead upstream to Colorado River high of 38 territories detected in 2006 2008, p. 12), most occurring within the Mile 243. This entire segment is within (Sogge and Durst 2008). State of Nevada, although territories are the full pool elevation of Lake Mead. We are designating as flycatcher also known along the Virgin River in The Colorado River in Mohave County, critical habitat a 3.6-km (2.3-mi) Utah and Arizona. Arizona, is within the geographical area segment of the Pahranagat River through We are designating as flycatcher known to be occupied by flycatchers at the Pahranagat NWR in Nye County, critical habitat a 152.0-km (94.4-mi) the time of listing, and contains the Nevada. This segment is not within the segment (total length) of the Virgin physical or biological features essential geographical area known to be occupied River that begins at Berry Springs in to the conservation of the species which at the time of listing, but is being Washington County, Utah, continues may require special management designated as critical habitat because it 47.5 km (29.5 mi) through the State of considerations or protection, as is essential for flycatcher conservation Utah, then extends 56.0 km (34.8 mi) described above. in order to meet recovery goals in the through the Town of Littlefield and the This Middle Colorado River segment Pahranagat Management Unit. State of Arizona, and then 48.4 km (30.0 was identified as having substantial The Pahranagat River segment was mi) through the State of Nevada until it recovery value in the Recovery Plan identified as having substantial recovery ends at Colorado River Mile 280 at the (Service 2002, p. 89). The portion of the value in the Recovery Plan (Service upper end of Lake Mead, Clark County, Colorado River we proposed as critical 2002, pp. 89–90). This essential river Nevada. This segment is not within the habitat, within the Middle Colorado segment we are designating as critical geographical area known to be occupied Management Unit, is anticipated to habitat within the Pahranagat at the time of listing, but is being provide habitat for metapopulation Management Unit is anticipated to designated as critical habitat because it stability, gene connectivity through this provide habitat for metapopulation is essential for flycatcher conservation portion of the flycatcher’s range, stability, gene connectivity through this in the Virgin River Management Unit in protection against catastrophic portion of the flycatcher’s range, order to meet recovery goals. population loss, and population growth protection against catastrophic The Virgin River was identified as and colonization potential. As a result, population loss, and population growth having substantial recovery value in the this river segment and associated and colonization potential. As a result, Recovery Plan (Service 2002, p. 89). flycatcher habitat are anticipated to this river segment and associated This essential segment of the Virgin support the strategy, rationale, and flycatcher habitat is anticipated to

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support the strategy, rationale, and Alamo Dam, closer to the Colorado (Sogge and Durst 2008). Through 2007, science of flycatcher conservation in River, we are designating as critical a total of 6 breeding sites occurred order to meet territory and habitat- habitat a 12.4 km (7.7 mi) of the Bill within this segment (Durst 2008, p. 12) related recovery goals. Williams River from Casten˜ eda Wash with a high of 34 territories detected in The Pahranagat River (2.5 km, 1.6 mi downstream of Planet Ranch to the 2004 (Sogge and Durst 2008). and 1.4 km, 0.9 mi) segments within the middle of the Bill Williams NWR, where These segments of the Colorado River Key Pittman State Wildlife Area in it meets the boundary of the LCR MSCP and Bill Williams River were identified Lincoln County and the 3.1-km (1.9-mi) planning area. All of these areas are as having substantial recovery value in Muddy River segment within the within the geographical area known to the Recovery Plan (Service 2002, p. 90). boundaries of the Overton State Wildlife be occupied by flycatchers at the time These river segments are anticipated to Area in Clark County, Nevada, were also of listing, and contain the physical or provide flycatcher habitat for identified as being essential to biological features essential for the metapopulation stability, gene flycatcher conservation. As a result of conservation of the species which may connectivity through this portion of the the State of Nevada’s management of the require special management flycatcher’s range, protection against Key Pittman and Overton State Wildlife considerations or protection, as catastrophic population loss, and Areas for wildlife and riparian habitat described above. population growth and colonization for the flycatcher, both of these The Big Sandy, Santa Maria, and Bill potential. As a result, these river proposed segments in this Management Williams Rivers were identified as segments and associated flycatcher Unit are being excluded from this having substantial recovery value in the habitat are anticipated to support the designation under section 4(b)(2) of the Recovery Plan (Service 2002, p. 90). strategy, rationale, and science of Act (see Exclusions section below). These river segments we are designating flycatcher conservation in order to meet within the Bill Williams Management territory and habitat-related recovery Bill Williams Management Unit, Unit are anticipated to provide habitat goals. Arizona for metapopulation stability, gene These segments of the Colorado River The Recovery Plan describes a goal of connectivity through this portion of the (107.0 km, 66.4 mi) and Bill Williams 100 flycatcher territories in the Bill flycatcher’s range, protection against River (1.7 km, 1.0 mi) are within the Williams Management Unit (Service catastrophic population loss, and geographical area known to be occupied 2002, p. 84). Flycatcher territories are population growth and colonization by flycatchers at the time of listing, and distributed across a broad area of the potential. As a result, these river contain the physical or biological Bill Williams Management Unit. segments and associated flycatcher features essential to the conservation of We identified a large flycatcher habitat is anticipated to support the the species, which may require special nesting population in the Bill Williams strategy, rationale, and science of management considerations or Management Unit. It encompasses areas flycatcher conservation in order to meet protection. The entirety of the segments along the Big Sandy River near the territory and habitat-related recovery proposed as flycatcher critical habitat Town of Wikieup in Mohave County; goals. occur within the planning area of the the Big Sandy, Santa Maria, and Bill An 8.9-km (5.6-mi) section of the LCR MSCP. The Fort Mojave and Williams Rivers at the upper end of lower Bill Williams River within the Chemehuevi Tribes also occur within Alamo Lake in La Paz County; and along Bill Williams River NWR is also within this segment and are also within the the Bill Williams River between Alamo the geographical area known to be planning area of the LCR MSCP. These Dam and the Colorado River in La Paz occupied by flycatchers at the time of tribes have developed, completed, and and Mohave Counties. Flycatchers were listing, and contains the physical or are implementing actions described in first detected nesting on the Big Sandy, biological features essential to the their Flycatcher Management Plans. As Santa Maria, and Bill Williams Rivers in conservation of the species, which may a result of the flycatcher conservation 1994 (Sogge and Durst 2008). Through require special management occurring along the Colorado River and 2007, a total of 9 breeding sites occurred considerations or protection. This Bill Williams River as a result of being within these segments with a high of 61 portion of the Bill Williams River occurs included within the planning area of the territories detected in 2004 (Sogge and within the planning area of the LCR LCR MSCP, these entire segments are Durst 2008). Since 2007, an additional MSCP. As a result of the conservation being excluded from this critical habitat breeding site was discovered on the provided the flycatcher within the LCR designation under section 4(b)(2) of the upper Big Sandy River and an MSCP planning area, this portion of the Act (see Exclusions section below). additional two sites discovered along Bill Williams River is being excluded Parker Dam to Southerly International the Bill Williams River. from this critical habitat designation Border Management Unit, Arizona and We are designating as flycatcher under section 4(b)(2) of the Act (see California critical habitat a 35.3-km (21.9-mi) Exclusions section below). segment of the upper Big Sandy River The Recovery Plan describes a goal of from the Town of Wikieup to Groom Hoover to Parker Dam Management 150 flycatcher territories in the Parker Peak Wash in La Paz County, Arizona. Unit, Arizona and California Dam to Southerly International Border At upper Alamo Lake where the Big The Recovery Plan describes a goal of Management Unit (Service 2002, p. 84). Sandy (9.6 km, 6.0 mi), Santa Maria (8.4 50 flycatcher territories in the Hoover to We identified a large flycatcher km, 5.2 mi), and Bill Williams Rivers Parker Dam Management Unit (Service nesting population along the Colorado (5.4 km, 3.3 mi) converge, we are 2002, p. 84). River within La Paz and Yuma Counties, designating collectively, a 23.4-km We identified a large flycatcher Arizona, and San Bernardino, Riverside, (14.5-mi) portion of these three streams nesting population along the Colorado and Imperial Counties, California. in La Paz County. Between Alamo Dam River (and a small portion of the Bill Flycatcher territories were first detected and the Colorado River, we are Williams River) within Mohave and La on this portion of the Colorado River in designating as critical habitat a 17.8-km Paz Counties, Arizona, and San 1995 (Sogge and Durst 2008). Through (11.0-mi) segment of the Bill Williams Bernardino County, California. 2007, a total of 16 breeding sites River near Lincoln Ranch in La Paz and Flycatchers were first detected on this occurred within this Management Unit Mohave Counties, Arizona. Also below portion of the Colorado River in 1995 (Durst 2008, p.12), with a high of 15

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territories detected in 1996 (Sogge and probably a function of relatively low Los Pinos River that we considered Durst 2008). In 2007, it was estimated survey effort rather than an accurate essential for flycatcher conservation and that only one territory occurred within reflection of the bird’s actual numbers were considering for flycatcher critical this Management Unit (Sogge and Durst and distribution (Service 2002, p. 64). habitat (see Summary of Changes from 2008). Much willow riparian habitat occurs Proposed Rule above). This segment of the Colorado River along drainages within this Recovery We are designating as flycatcher was identified as having substantial Unit and remains to be surveyed critical habitat a segment of the Los recovery value in the Recovery Plan (Service 2002, p. 64). The Upper Pinos River in La Plata County, (Service 2002, p. 90). This portion of the Colorado Recovery Unit contains the Colorado (7.2 km, 4.5 mi), and the LCR is anticipated to provide flycatcher Powell and San Juan Management habitat for metapopulation stability, Units. northern bank of the San Juan River in gene connectivity through this portion Based upon our occupancy criteria San Juan County, Utah (43.5 km, 27.0 of the flycatcher’s range, protection (see above), within the Upper Colorado mi). The Los Pinos River segment begins against catastrophic population loss, Recovery Unit, no streams were known at a private road crossing of the Los and population growth and colonization to be occupied at the time of listing Pinos River west of the Pine River potential. As a result, this portion of the (1991–1994) (Sogge and Durst 2008). Ranch Road, approximately 3.7 km (2.3 LCR and associated flycatcher habitat is Below we identify that each listed item mi) north of Highway 160 near the town anticipated to support the strategy, described in our Special Management of Bayfield, and ends at the northern rationale, and science of flycatcher Considerations or Protection section boundary of Southern Ute tribal land. conservation in order to meet territory (see above) applies to the streams The north bank of the San Juan River in and habitat-related recovery goals. described in each Management Unit Utah occurs from the Navajo Nation The LCR within the Parker to within the Upper Colorado Recovery boundary downstream to Chinle Creek. Southerly International Border Unit. These segments were not within the Management Unit is within the geographical area known to be occupied geographical area known to be occupied San Juan Management Unit, Colorado, New Mexico, Arizona, and Utah at the time of listing, but are essential by flycatchers at the time of listing, and for flycatcher conservation in order to contains the physical or biological The Recovery Plan describes a goal of help meet recovery goals in this features essential to flycatcher 25 flycatcher territories in the San Juan Management Unit. conservation which may require special Management Unit (Service 2002, p. 84). management considerations or Flycatcher territories have been detected These segments of the San Juan and protection. The entirety of the segments in small numbers over a broad area of Los Pinos Rivers were identified as proposed as flycatcher critical habitat the southwestern Colorado and having substantial recovery value in the occurs within the planning area of the northwestern New Mexico within the Recovery Plan (Service 2002, p. 88). LCR MSCP. The Colorado Indian and Management Unit. These essential river segments are Quechan (Fort Yuma) tribal lands occur There were no large flycatcher nesting anticipated to provide flycatcher habitat within these segments and are also populations in the San Juan for metapopulation stability, gene within the planning area of the LCR Management Unit to help guide us connectivity through this portion of the MSCP. These tribes have developed, toward a critical habitat area, and no flycatcher’s range, protection against completed, and are implementing areas were known to be occupied at the catastrophic population loss, and actions described in their Flycatcher time of listing. Therefore, to identify the population growth and colonization Management Plans. As a result of the areas that would contribute to meeting potential. As a result, these river flycatcher conservation occurring along recovery goals for this Management segments and associated flycatcher the Colorado River from being included Unit, we used information based on habitat are anticipated to support the within the planning area of the LCR known flycatcher territories and strategy, rationale, and science of MSCP, these segments are being breeding sites, guidance from the flycatcher conservation in order to meet excluded from this critical habitat Recovery Plan, and knowledge about territory and habitat-related recovery designation under section 4(b)(2) of the stream habitat to determine critical goals. habitat segments that may be essential Act (see Exclusions section below). Segments along the Los Pinos River for flycatcher conservation (see below). that occur on Southern Ute tribal land Upper Colorado Recovery Unit In 2007, 10 territories were estimated to The Upper Colorado Recovery Unit is occur (within a total of 3 breeding sites) in Colorado, and San Juan River on the comprised of a broad geographic area along the Los Pinos River in Navajo Nation in New Mexico and Utah covering much of the Four Corners area southwestern Colorado in La Plata (southern bank), were not within the of southeastern Utah and southwestern County, Colorado, and along the San geographical area known to be occupied Colorado, with smaller portions of Juan River in San Juan County, New by flycatchers at the time of listing, but northwestern Arizona and northeastern Mexico (Durst et al. 2008, p. 13). essential for flycatcher conservation in New Mexico. Ecologically, this area may Through 2007, no known breeding sites order to meet recovery. Because of our be an intergradation area between the have yet to be detected in the Utah partnership with the Southern Ute Tribe southwestern willow flycatcher portion of this Management Unit (Sogge and Navajo Nation toward wildlife subspecies and the Great Basin willow and Durst 2008). conservation, and their development, flycatcher subspecies (Service 2002, p. Following our August 15, 2011, completion, and implementation of 64). Flycatchers are only known to proposal, we reevaluated the Los Pinos actions described in their Flycatcher breed at five breeding sites across this River segment following further habitat Management Plans, we have excluded broad Recovery Unit, representing an analysis (Ireland, T. 2012, entire) and the portions of the Los Pinos River in estimated high of 10 territories determined that the upper portion of Colorado and San Juan River in New occurring in 2007 (Durst et al. 2008, this stream contained habitat, Mexico and Utah (south bank) that p.13). However, this low number of vegetation, and features that do not occur tribal lands under section 4(b)(2) breeding sites and territories (less than support flycatcher habitat. As a result, of the Act (see Exclusions section 1 percent of the rangewide total) is this reduced the overall length of the below).

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Powell Management Unit, Utah and known territories grew to 659 within specifically occupied by nesting birds, Arizona this Recovery Unit (50 percent of the but based upon our criteria and the The Recovery Plan describes a goal of estimated rangewide total) (Durst et al. wide-ranging nature of this neotropical 25 flycatcher territories in the Powell 2008, p. 12). migrant, the Gila River within the Many breeding sites have small Management Unit (Service 2002, p. 84). Hassayampa and Agua Fria Management numbers of territories within the Gila No flycatcher territories have been Unit is also considered occupied at the Recovery Unit, but along sections of the detected in this Management Unit time of listing. Below we identify that upper and middle Gila River, lower San each listed item described in our (Sogge and Durst 2008). Pedro River, lower Tonto Creek, and the There were no large flycatcher nesting Special Management Considerations or Tonto Creek and Salt River confluence Protection section (see above) applies to populations in the Powell Management within the water conservation space of the streams described in each Unit to help guide us toward a critical Roosevelt Lake, abundant breeding sites Management Unit within the Gila habitat area, and no areas were known occur over a relatively broad geographic Recovery Unit. to be occupied at the time of listing. range that together comprise many Therefore, to identify the areas that flycatcher territories. Following the Verde Management Unit, Arizona would contribute to meeting recovery 2007 rangewide estimate (Durst et al. The Recovery Plan describes a goal of goals for this Management Unit, we 2008, p. 12), the Upper Gila, Middle 50 flycatcher territories in the Verde used information based on guidance Gila and San Pedro, and Roosevelt Management Unit (Service 2002, p. 85). from the Recovery Plan and available Management Units had surpassed We identified a large flycatcher information about stream habitats to numerical recovery goals. Within the nesting population along the Verde determine critical habitat segments that Gila Recovery Unit, there are River within Yavapai, Gila, and may be essential for flycatcher concentrations of flycatcher territories Maricopa Counties, Arizona. conservation (see below). in the Cliff-Gila Valley, New Mexico, Flycatchers were first detected nesting We are designating as flycatcher and at Roosevelt Lake, Arizona, that can on the Verde River in 1993; a total of six critical habitat a segment of the Paria be some of the largest across its range. breeding sites are known and are spread River in Kane County, Utah (19.0 km, Flycatcher territories in the Gila out from the Verde Valley near the 11.8 mi). This Paria River segment Recovery Unit occurred primarily on towns of Clarkdale and Camp Verde and occurs from its confluence with lands managed by private and Federal downstream near Horseshoe Lake Cottonwood Wash and ends at Highway land managers and in a variety of (Sogge and Durst 2008). A high of 23 89. This segment was not within the habitat types dominated by both native territories were detected within this geographical area known to be occupied and exotic plants. In 2001, private lands Management Unit in 2005 (Sogge and by flycatchers at the time of listing. This hosted 50 percent of the territories Durst 2008). river segment may be able develop and (mostly on the San Pedro River and Gila We are designating as flycatcher sustain flycatcher habitat and territories River), including one of the largest critical habitat five separate segments of and therefore is essential to flycatcher known flycatcher populations, in the the Verde River (three segments on conservation in order to help meet Cliff-Gila Valley, New Mexico (Service upper Verde River and two segments recovery goals in this Management Unit. 2002, p. 65). Almost the remaining 50 along the middle Verde River). Along This segment of the Paria River was percent of the territories were on the upper Verde River through the identified as having substantial recovery government-managed lands (Service Verde Valley, in Yavapai County, we are value in the Recovery Plan (Service 2002, p. 65). While in 2001 (Service designating a 42.0-km (26.1-mi) segment 2002, p. 88). This essential river 2002, p. 65), 58 percent of territories of the that occurs from above Tuzigoot segment is anticipated to provide were in habitats dominated by native National Monument near the Town of flycatcher habitat for metapopulation plants, flycatchers in this Recovery Unit Clarkdale, downstream through the stability, gene connectivity through this also make extensive use of exotic (77 towns of Cottonwood to the north end portion of the flycatcher’s range, territories) or exotic-dominated (108 of Yavapai Apache tribal land. At the protection against catastrophic territories) vegetation (primarily southern end of Yavapai Apache tribal population loss, and population growth tamarisk). Because the current land the next segment (15.3 km, 9.5 mi) and colonization potential. As a result, distribution of breeding sites in this extends toward Camp Verde where it this river segment and associated Recovery Unit is similar, we believe meets the north end of another, separate flycatcher habitat are anticipated to these statistics are mostly accurate piece of Yavapai Apache tribal land. At support the strategy, rationale, and today. This Recovery Unit contains the the southern end of this additional piece science of flycatcher conservation in Verde, Hassayampa and Agua Fria, of Yavapai Apache tribal land, the third order to meet territory and habitat- Roosevelt, San Francisco, Upper Gila, and last river segment along the upper related recovery goals. Middle Gila and San Pedro, and Santa Verde River extends 14.0 km (8.7 mi) to Cruz Management Units. Beasley Flat. We are also designating a Gila Recovery Unit Based upon our occupancy criteria 46.3-km (28.8-mi) segment in the The Gila Recovery Unit includes the (see above), within the Gila Recovery middle Verde River that extends from Gila River watershed, from its Unit, the Gila (1993), San Pedro (1993), the East Verde River confluence down headwaters in southwestern New San Francisco (1993), Verde (1993), and to the upper end of Horseshoe Lake. The Mexico downstream across the State of Salt (1993) Rivers, and Tonto Creek last (6.7 km, 4.2 mi) segment of the Arizona toward the confluence with the (1993) are streams that were within the Verde River designated as flycatcher Colorado River, in southwest Arizona geographical area known to be occupied critical habitat occurs from Horseshoe (Service 2002, p. 65). In 2002, 588 at the time of listing (1991–1994) (Sogge Dam and ends a short distance flycatcher territories (51 percent of the and Durst 2008) where we are downstream to the USGS gauging estimated rangewide total) were designating critical habitat segments. At station and cable crossing. These estimated to occur, distributed primarily the time of listing, only specific sites on segments of the Verde River are within on the Gila and lower San Pedro Rivers the Gila River within the Middle Gila the geographical area known to be (Sogge et al. 2003, pp. 10–11). From the and San Pedro and Upper Gila occupied by flycatchers at the time of latest rangewide estimate, the number of Management Units were known to be listing, and contain the physical or

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biological features essential to the flycatcher’s range where the recovery Roosevelt Lake HCP planning area conservation of the species which may goal was smaller than the known through the implementation of this HCO require special management number of territories at the time of the and the management support from the considerations or protection, as Recovery Plan completion. As a result, Tonto National Forest, the length of described above. river segments and the lakebed together Roosevelt Lake is being excluded from The Verde River was the lone river provide habitat that allow flycatcher this critical habitat designation under identified within this Management Unit territories to persist over time due to section 4(b)(2) of the Act (see Exclusions as having substantial recovery value in dynamic river and lake flooding events. section below). the Recovery Plan (Service 2002, p. 91). For example, a high of 196 flycatcher Essential flycatcher habitat along These river segments are anticipated to territories occurred in 2004 (mostly Pinal Creek (5.8 km, 3.6 mi), not within provide flycatcher habitat for within the conservation space of the geographical area known to be metapopulation stability, gene Roosevelt Lake), but in the following occupied at the time of listing, managed connectivity through this portion of the years after the lake level was raised, the by FMC, is being excluded under flycatcher’s range, protection against known number of territories declined to section 4(b)(2) of the Act due to our catastrophic population loss, and 75 in 2007 (Sogge and Durst 2008). conservation partnership and their population growth and colonization Since the raising of the water level in implementation of a management plan potential. As a result, these river Roosevelt Lake, flycatchers have specific to protecting flycatcher habitat segments and associated flycatcher expanded their known distribution (see Exclusions section below). habitat are anticipated to support the throughout adjacent areas along Tonto Middle Gila and San Pedro Management strategy, rationale, and science of Creek, Salt River, and Pinal Creek Unit, Arizona flycatcher conservation in order to meet (Sogge and Durst 2008). territory and habitat-related recovery We are designating as flycatcher The Recovery Plan describes a goal of goals. critical habitat a segment of lower Tonto 150 flycatcher territories in the Middle The conservation space of Horseshoe Creek and a segment of the upper Salt Gila and San Pedro Management Unit Lake is within the planning area of the River. The lower Tonto Creek segment (Service 2002, p. 85). Horseshoe and Bartlett Dams HCP. As a extends for 49.0-km (30.5-mi) and We identified a large flycatcher result of the management and protection occurs from the south end of the Town nesting population surrounding the Gila provided flycatcher habitat within the of Gisela downstream to the western and San Pedro River confluence area conservation space of Horseshoe Lake high-water-mark side of the within Cochise, Pima, Pinal, and Gila due to its inclusion in the HCP, this conservation space of Roosevelt Lake. Counties, Arizona. Flycatchers were portion of the Verde River (9.6 km, 6.0 On the eastern side of Roosevelt Lake, first detected nesting in this mi) is being excluded from this critical we are designating a 38.9-km (24.2-mi) Management Unit in 1993, with habitat designation under section 4(b)(2) segment from the Salt River confluence abundant breeding sites occurring of the Act (see Exclusions section with Cherry Creek downstream to the throughout this Management Unit. A below). high water mark of the conservation high of 195 territories was detected in Two separate sections (2.1 km, 1.3 mi space of Roosevelt Lake. These segments 2005 (Sogge and Durst 2008). and 0.7 km, 0.4 mi) of the upper Verde are within the geographical area known We are designating as flycatcher River occur on Yavapai Apache tribal to be occupied by flycatchers at the time critical habitat the lowest 126.2-km lands. Because of our partnership with of listing, and contain the physical or (78.4-mi) segment of the middle and the Yavapai Apache Tribe toward biological features essential to the lower San Pedro River across portions of wildlife conservation, and their conservation of the species which may Cochise, Pima, and Pinal Counties, development, completion, and require special management Arizona, and a 80.6-km (50.1-mi) Gila implementation of actions described in considerations or protection, as River segment that extends from near their Flycatcher Management Plan, we described above. Dripping Springs Wash downstream have excluded these two sections of the The segments of Tonto Creek and the past the San Pedro and Gila River Verde River that occur on their tribal Salt River were identified as having confluence to the Ashehurst Hayden lands under section 4(b)(2) of the Act substantial recovery value in the Diversion Dam in Gila and Pinal (see Exclusions section below). Recovery Plan (Service 2002, p. 91). Counties, Arizona. The Gila and San These segments are anticipated to Pedro Rivers are within the geographical Roosevelt Management Unit, Arizona provide flycatcher habitat for area known to be occupied by The Recovery Plan describes a goal of metapopulation stability, gene flycatchers at the time of listing, and 50 flycatcher territories in the Roosevelt connectivity through this portion of the contain the physical or biological Management Unit (Service 2002, p. 85). flycatcher’s range, protection against features essential to the conservation of We identified a large flycatcher catastrophic population loss, and the species which may require special nesting population surrounding the population growth and colonization management considerations or Roosevelt Lake area along Tonto Creek, potential. As a result, these river protection, as described above. the Salt River, and Pinal Creek in Gila segments and associated flycatcher The San Pedro and Gila Rivers were and Pinal Counties, Arizona. habitat are anticipated to support the the only two rivers identified within Flycatchers were first detected nesting strategy, rationale, and science of this Management Unit as having on Tonto Creek and the Salt River flycatcher conservation in order to meet substantial recovery value in the within the conservation space of territory and habitat-related recovery Recovery Plan (Service 2002, p. 91). Roosevelt Lake in 1993 (Sogge and Durst goals. These river segments are anticipated to 2008). The confluence of Tonto Creek and provide flycatcher habitat for Because of the anticipated water level the Salt River (29.1 km, 18 mi) that metapopulation stability, gene fluctuations at Roosevelt Lake, which make up Roosevelt Lake below the connectivity through this portion of the inundates many flycatcher territories elevation of 2151 feet, occurs within the flycatcher’s range, protection against and limits the number of territories that planning area of the Roosevelt Lake catastrophic population loss, and can be sustained over time, this is the HCP. As a result of the conservation population growth and colonization only Management Unit within the provided the flycatcher within the potential. As a result, these river

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segments and associated flycatcher stretch of stream in the Cliff-Gila Valley, implementation of actions described in habitat are anticipated to support the New Mexico, which extends into the their Flycatcher Management Plan, we strategy, rationale, and science of Gila National Forest, there are checker- have excluded the 31.3 km (19.5 mi) flycatcher conservation in order to meet boarded lands that occur within the portion of the Gila River (upstream of territory and habitat-related recovery final designation and are excluded from the San Carlos Reservoir) that occurs goals. critical habitat (U-Bar Ranch). A fourth within their tribal lands under section Parcels of San Carlos Apache lands, Arizona Gila River segment occurs 4(b)(2) of the Act (see Exclusions section totaling about 0.9 km (0.6 mi) and 75 ha through the Safford Valley in Gila, below). Also because of our tribal trust (185 ha) occur along the lower San Graham, and Pinal Counties. responsibilities with both the San Carlos Pedro River between the Aravaipa Creek The most upstream Gila River Apache Tribe and Gila River Indian and Gila River confluence. Because of flycatcher critical habitat segment Community (GRIC), we are excluding our partnership with the San Carlos extends for 16.9 km (10.5 mi) from the the Federal land that occurs along the Apache Tribe toward wildlife Turkey Creek-Gila River confluence on Gila River (26.8 km, 16.6 mi) within the conservation, and their development, the Gila National Forest, New Mexico, conservation space of San Carlos completion, and implementation of downstream to the upstream boundary Reservoir under section 4(b)(2) of the actions described in their Flycatcher of the U-Bar Ranch in the Cliff-Gila Act (see Exclusions section below). Management Plan, we have excluded Valley, New Mexico. We are excluding Because of the development, these parcels along the San Pedro River the U-Bar Ranch from this point completion, and implementation of that occur on their tribal lands under downstream for approximately 26.4 km actions described in FMC’s Flycatcher section 4(b)(2) of the Act (see Exclusions (16.4 mi) to the last U-Bar Ranch parcel, Management Plan for the U-Bar Ranch section below). which occurs just within the Gila in the Cliff-Gila Valley, New Mexico, we National Forest Boundary. Along this are excluding the 13.8 km (8.6 mi) Upper Gila Management Unit, Arizona approximate 26.4 km (16.4 mi) stretch of portions of the Gila River occurring on and New Mexico the Gila River, the U-Bar Ranch contains these lands under section 4(b)(2) of the The Recovery Plan describes a goal of about 13.6 km (8.6 mi) of check-boarded Act due to our conservation partnership 325 flycatcher territories in the Upper property which is not included in the and their implementation of a Gila Management Unit (Service 2002, p. final designation; a 12.8 km (8.0 mi) management plan specific to protecting 85). Flycatcher territories are known portion of stream is included within the flycatcher habitat (see Exclusions throughout the Gila River in New final designation. The second Gila River section below). Mexico and Arizona within this segment extends from the downstream Santa Cruz Management Unit, Arizona Management Unit. boundary of the U-Bar Ranch within the We identified a large flycatcher Gila National Forest for 6.0 km (3.7 mi) The Recovery Plan describes a goal of nesting population across a broad area to the upstream end of the middle Gila 25 flycatcher territories in the Santa of the upper Gila River occurring within Box, New Mexico. The third segment Cruz Management Unit (Service 2002, p. Gila, Pinal, Graham, and Greenlee begins at the Gila River gauging station 84). Counties, Arizona, and Grant and above the Town of Red Rock in Grant There were no large flycatcher nesting Hildalgo Counties, New Mexico. County, New Mexico, at the populations in the Santa Cruz Flycatchers were first detected nesting downstream end of the middle Gila Box Management Unit to help guide us in this Management Unit in 1993 (Sogge and extends for 65.3 km (40.6 mi) into toward a critical habitat area, and no and Durst 2008). Flycatcher territories at Hidalgo County, New Mexico, and just areas were known to be occupied at the 22 breeding sites occur throughout three across the New Mexico-Arizona State time of listing. Therefore, to identify the separate river segments of the Gila line through the town of Duncan in areas that would contribute to meeting River, with a high of 329 territories Greenlee County, Arizona. A fourth Gila recovery goals for this Management estimated following the 2007 breeding River segment extends for 76.4 km (47.5 Unit, we used information based on season (Durst et al. 2008, p. 12). A single mi) from the upper end of Earven Flat known flycatcher territories and breeding site along the most upstream in Arizona, above the Town of Safford, breeding sites, guidance from the segment in the Cliff-Gila Valley in Grant through the Safford Valley to the San Recovery Plan, and knowledge about County, New Mexico, has held over 200 Carlos Apache tribal boundary in Gila, stream habitat to determine critical flycatcher territories in a single season Graham, and Pinal Counties, Arizona. habitat segments that may be essential (Sogge and Durst 2008). The Gila River These Gila River segments were for flycatcher conservation. A single is within the geographical area known identified in the Recovery Plan as areas flycatcher territory was detected on to be occupied by flycatchers at the time with substantial recovery value (Service Cienega Creek in 2001 (Sogge and Durst of listing, and contains the physical or 2002, p. 91) and are anticipated to 2008) and Empire Gulch in 2011 (a biological features essential to the provide flycatcher habitat for tributary to Cienega Creek). No conservation of the species which may metapopulation stability, gene flycatcher territories have been detected require special management connectivity through this portion of the on the Santa Cruz River. considerations or protection, as flycatcher’s range, protection against Within Pima and Santa Cruz described above. catastrophic population loss, and Counties, Arizona, we are designating We are designating four Gila River population growth and colonization flycatcher critical habitat along Cienega stream segments as flycatcher critical potential. As a result, these river Creek, Empire Gulch, and the Santa habitat between the Turkey Creek-Gila segments and associated flycatcher Cruz River. Within Las Cienegas River confluence on the Gila National habitat are anticipated to support the National Conservation Area in Pima Forest, New Mexico, and the San Carlos strategy, rationale, and science of County, we are designating a 17.9-km Apache tribal Land boundary, Arizona. flycatcher conservation in order to meet (11.1-mi) segment of Cienega Creek and There are three segments we are territory and habitat-related recovery two segments of Empire Gulch; an designating as flycatcher critical habitat goals. isolated 0.4-km (0.3-mi) upper segment that occur almost entirely on the upper Because of our partnership with the of Empire Gulch and a second 1.3-km Gila River in southwestern New Mexico San Carlos Apache Tribe and their (0.8-mi) lower segment of Empire Gulch (Grant and Hildalgo Counties). Within a development, completion, and that connects to Cienega Creek. Along

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the Santa Cruz River, we are designating management considerations or territories ranging from one and three a 26.7-km (16.6-mi) segment from the protection, as described above. (Sogge and Durst 2008). Nogales Waste Water Treatment Plant to We are designating as flycatcher We are designating as flycatcher Chavez Siding Road in Santa Cruz critical habitat four segments of the San critical habitat a 7.4-km (4.6-mi) County, Arizona. These segments were Francisco River in Arizona and New segment of the Hassayampa River that not within the geographical area known Mexico. We are designating two occurs south of the Highway 60 Bridge to be occupied at the time of listing; segments of the San Francisco River in the Town of Wickenburg in Maricopa however, they are essential to flycatcher between the Town of Alpine, Arizona, County, Arizona. This segment was not conservation because they may be able and Centerfire Creek in Catron County, within the geographical area known to to develop and sustain flycatcher habitat New Mexico, that are separated by a 2.7 be occupied at the time of listing; and territories to help meet recovery km (1.7 mi) area at Luna Lake, Arizona. however, it is essential for flycatcher goals in this Management Unit. These two segments extend for 11.3-km conservation because it will help meet The Santa Cruz River and Cienega (7.0-mi) west of Luna Lake in Apache recovery goals in this Management Unit. Creek segments were identified in the County, Arizona, and beginning just The Hassayampa River was identified Recovery Plan as areas with substantial downstream of Luna Lake, for 28.2-km in the Recovery Plan as having recovery value (Service 2002, p. 91), (17.5.mi) in Apache County and Catron substantial recovery value (Service while the adjacent Empire Gulch was County. A third 36.4-km (22.6-mi) 2002, p. 91). This river segment is only recently detected as having a segment extends from the Deep Creek anticipated to provide flycatcher habitat flycatcher territory. These segments are confluence to San Francisco Hot for metapopulation stability, gene anticipated to provide flycatcher habitat Springs, in Catron County, New Mexico. connectivity through this portion of the for metapopulation stability, gene The fourth, 36.7-km (22.8-mi) segment flycatcher’s range, protection against connectivity through this portion of the extends from the Arizona and New catastrophic population loss, and flycatcher’s range, protection against Mexico State line border to the western population growth and colonization potential. As a result, this segment and catastrophic population loss, and boundary of the Apache-Sitgreaves associated flycatcher habitat are population growth and colonization National Forest, in Apache County, anticipated to support the strategy, potential. As a result, these river Arizona. segments and associated flycatcher rationale, and science of flycatcher These San Francisco River segments habitat are anticipated to support the conservation in order to meet territory were identified in the Recovery Plan as strategy, rationale, and science of and habitat-related recovery goals. having substantial recovery value flycatcher conservation in order to meet The 8.7 km (5.4 mi) Gila River (Service 2002, pp. 90–91). These San territory and habitat-related recovery segment that occurs within the Tres Francisco River segments are goals. Rios Safe Harbor Agreement Area will anticipated to provide flycatcher habitat be excluded under section 4(b)(2) of the San Francisco Management Unit, for metapopulation stability, gene Act (see Exclusions section below) as a Arizona and New Mexico connectivity through this portion of the result of the habitat development and The Recovery Plan describes a goal of flycatcher’s range, protection against management by the City of Phoenix 25 flycatcher territories in the San catastrophic population loss, and associated with their Safe Harbor Francisco Management Unit (Service population growth and colonization Agreement with the Service. 2002, p. 84). Small numbers of potential. As a result, these river flycatcher territories are known to occur segments and associated flycatcher Rio Grande Recovery Unit along the San Francisco River in this habitat are anticipated to support the This Recovery Unit primarily Management Unit in both Arizona and strategy, rationale, and science of includes the Rio Grande watershed from New Mexico. flycatcher conservation in order to meet its headwaters in southern Colorado There were no known large flycatcher territory and habitat-related recovery downstream to the Pecos River nesting populations in the San goals. confluence in Texas. Other areas and Francisco Management Unit to help Hassayampa and Agua Fria Management drainages that occur within this guide us toward a critical habitat area. Unit, Arizona Recovery Unit include the Rio Grande Therefore, to identify the areas that in Texas and Pecos watershed in New would contribute to meeting recovery The Recovery Plan describes a goal of Mexico and Texas. No recovery goals goals for this Management Unit, we 25 flycatcher territories in the were established for Management Units used information based on known Hassayampa and Agua Fria Management in those areas, so no critical habitat is flycatcher territories and breeding sites, Unit (Service 2002, p. 84). being designated in those areas. guidance from the Recovery Plan, and There were no large flycatcher nesting There have been large increases in the knowledge about stream habitat to populations in the Hassayampa and number of estimated and known determine critical habitat segments for Agua Fria Management Unit to help territories within the Rio Grande flycatcher conservation (see below). guide us toward a critical habitat area. Recovery Unit, primarily due to Four flycatcher breeding sites have been Therefore, to identify the areas that increasing population numbers within detected on these river segments, with would contribute to meeting recovery the Middle Rio Grande Management the first territories found in 1993 (Sogge goals for this Management Unit, we Unit. In 2002, a total of 197 territories and Durst 2008). The number of used information based on known (17 percent of the rangewide total) were territories detected has fluctuated flycatcher territories and breeding sites, estimated to occur within the Recovery annually between one and seven from guidance from the Recovery Plan, and Unit, primarily occurring along the 1993 to 2007 (Sogge and Durst 2008). knowledge about stream habitat to mainstem Rio Grande (Sogge et al. The San Francisco River is within the determine critical habitat segments that 2003). At the end of the 2007 breeding geographical area known to be occupied may be essential for flycatcher season, the Recovery Unit had increased by flycatchers at the time of listing, and conservation (see below). A single to an estimated 230 territories (17 contains the physical or biological breeding site along the Hassayampa percent of the rangewide total), features essential for the conservation of River was detected within this primarily due to territory increases in the species which may require special Management Unit, with the number of the Middle Rio Grande (Durst et al.

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2008, p.13). In the subsequent years, the Luis Valley Management Unit is also flycatcher habitat are anticipated to number of known territories has considered occupied at the time of support the strategy, rationale, and continued to increase within the Middle listing. Below we identify that each science of flycatcher conservation in Rio Grande Management Unit with listed item described in our Special order to meet territory and habitat- approximately 350 territories detected Management Considerations or related recovery goals. in 2009, with most territories detected Protection section (see above) applies to Large sections of non-federal lands within the San Marcial reach near the streams described in each occur along both the Rio Grande and Elephant Butte Reservoir (Moore and Management Unit within the Rio Conejos River within the conservation Ahlers 2010, p. 1). Grande Recovery Unit. planning area established by the San Both the San Luis Valley Management Luis Valley Partnership and within their Unit in southern Colorado and Middle San Luis Valley Management Unit, HCP; as a result, we excluded 184.5 km Rio Grande Management Unit in New Colorado (114.7 mi) constituting 27,566.6 ha Mexico have surpassed their numerical The Recovery Plan describes a goal of (68,118.2 ac) of habitat along the territory goals. A total of 50 territories 50 flycatcher territories in the San Luis Conejos River and Rio Grande within are needed in the San Luis Valley Valley Management Unit (Service 2002, this conservation and planning area Management Unit and 56 territories p. 85). under section 4(b)(2) of the Act (see were estimated to occur in 2007 (Durst We identified a large flycatcher Exclusions). et al. 2008, p. 13). In the Middle Rio nesting population in the San Luis Upper Rio Grande Management Unit, Grande Management Unit, the Valley in Costilla, Conejos, Alamosa, New Mexico numerical goal of 100 territories has and Rio Grande Counties, Colorado. been surpassed with about 350 Flycatchers were first detected nesting The Recovery Plan describes a goal of territories detected in 2009 (Moore and in this Management Unit in 1997, and 75 flycatcher territories in the Upper Rio Ahlers 2010, p.1). a high of 71 territories were detected Grande Management Unit (Service 2002, Most sites are in habitats dominated along the Rio Grande and Conejos River p. 85). by native plants, while habitat in 2003 (Sogge and Durst 2008). We identified a large flycatcher dominated by exotic plants include We are designating as flycatcher nesting population on the upper Rio primarily tamarisk or Russian olive critical habitat two segments of the Rio Grande in Taos, Santa Fe, and Mora (Service 2002, p. 65). In 2001, 43 of the Grande, which are within close Counties, New Mexico. Flycatchers 56 nests (77 percent) that were proximity to each other, within the San were first detected nesting in this described in the middle and lower Rio Luis Valley. The northern-most segment Management Unit in 1993, and a high of Grande in New Mexico, used tamarisk on the Rio Grande is an 18.4-km (11.4- 39 territories were detected in 2000 as the nest substrate (Service 2002, p. mi) segment constituting 3,377 ha (8345 along the Rio Grande, Rio Grande Del 65). In 2001, government-managed lands ac) within the Alamosa NWR. The more Rancho, and Coyote Creek (Sogge and accounted for 63 percent of the southerly segment is on BLM land (on Durst 2008). These segments are within territories in this unit; tribal lands the west side of the Rio Grande) and is the geographical area known to be supported an additional 23 percent 20.4 km (12.7 mi) long constituting occupied by flycatchers at the time of (Service 2002). While the number of 182.8 ha (451.7 ac). The Rio Grande is listing, and contain the physical or territories has increased, the known within the geographical area known to biological features essential for the distribution of sites is similar. As a be occupied by flycatchers at the time conservation of the species which may result, we expect a larger proportion of of listing, and contains the physical or require special management territories to occur on government- biological features essential for the considerations or protection. Flycatcher managed lands in the Middle Rio conservation of the species that may territories were recently detected on the Grande Management Unit. require special management Rio Fernando, which was not within the This Recovery Unit contains the San considerations or protection, as geographical area known to be occupied Luis Valley, Upper Rio Grande, Middle described above. by flycatchers at the time of listing, but Rio Grande, and Lower Rio Grande We are also designating as flycatcher is considered essential for conservation. Management Units. critical habitat three segments in close We are designating as flycatcher Based upon our occupancy criteria proximity on the Conejos River that, in critical habitat a collection of Upper Rio (see above), within the Rio Grande total, are 4.7-km (2.9-mi) long Grande Management Unit river Recovery Unit, the Rio Grande (1993), constituting 502.9 ha (1242.7 ac). The segments along the Rio Grande, Rio Rio Grande del Rancho (1993), and Conejos River was not within the Grande del Rancho, Coyote Creek, and Coyote Creek (1993) are streams that geographical area known to be occupied Rio Fernando. We are designating a were within the geographical area at the time of listing; however, it is 46.8-km (29.1-mi) Rio Grande segment known to be occupied at the time of essential for flycatcher conservation that extends from the Taos Junction listing (1991–1994) (Sogge and Durst because it will help meet recovery goals Bridge (State Route 520) downstream to 2008) where we are designating critical in this Management Unit. the northern boundary of the San Juan habitat segments. These streams have The Rio Grande and the Conejos River (Ohkay Ohwingeh) Pueblo, and a 1.1 km the physical or biological features of segments were identified within this (0.4 mi) segment of the Rio Grande critical habitat that may require special Management Unit as having substantial between the San Juan (Ohkay management considerations or recovery value in the Recovery Plan Ohwingeh) and Santa Clara Pueblos. We protection. (Service 2002, p. 92). These river are also designating as flycatcher critical At the time of listing, only specific segments are anticipated to provide habitat an 11.9-km (7.4-mi) segment of sites on the Rio Grande within the flycatcher habitat for metapopulation the Rio Grande del Rancho from Sarco Upper, Middle, and Lower Rio Grande stability, gene connectivity through this Canyon downstream to the Arroyo Management Units were known to be portion of the flycatcher’s range, Miranda confluence, and a 10.7-km (6.6- specifically occupied by nesting birds, protection against catastrophic mi) segment of Coyote Creek from above but based upon our criteria and the population loss, and population growth Coyote Creek State Park downstream to wide-ranging nature of this neotropical and colonization potential. As a result, the second bridge on State Route 518, migrant, the Rio Grande within the San these river segments and associated upstream from Los Cocas. Additionally,

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we are designating a 0.4-km (0.2-mi) downstream of the power-line crossing habitat, through development and segment of the Rio Fernando that is is included within the designation). protection of habitat and water located about 3.2 km (2.0 mi) upstream This Rio Grande segment was transaction agreements, we are from the Rio Lucero confluence. identified as having substantial recovery excluding this segment from the final Rio Grande, Rio Grande del Rancho, value in the Recovery Plan (Service designation of revised flycatcher critical and Coyote Creek were identified within 2002, p. 92). This segment of the Rio habitat under section 4(b)(2) of the Act this Management Unit as having Grande is anticipated to provide (see Exclusions section below). substantial recovery value in the flycatcher habitat for metapopulation Recovery Plan (Service 2002, p. 92). stability, gene connectivity through this Effects of Critical Habitat Designation These three segments, along with the portion of the flycatcher’s range, Section 7 Consultation essential Rio Fernando segment, are protection against catastrophic Section 7(a)(2) of the Act requires anticipated to provide flycatcher habitat population loss, and population growth Federal agencies, including the Service, for metapopulation stability, gene and colonization potential. As a result, to ensure that any action they fund, connectivity through this portion of the this river segment and associated authorize, or carry out is not likely to flycatcher’s range, protection against flycatcher habitat are anticipated to jeopardize the continued existence of catastrophic population loss, and support the strategy, rationale, and population growth and colonization science of flycatcher conservation in any endangered species or threatened potential. As a result, these river order to meet territory and habitat- species or result in the destruction or segments and associated flycatcher related recovery goals. adverse modification of designated habitat are anticipated to support the critical habitat of such species. In Lower Rio Grande Management Unit, strategy, rationale, and science of addition, section 7(a)(4) of the Act New Mexico flycatcher conservation in order to meet requires Federal agencies to confer with territory and habitat-related recovery The Recovery Plan describes a goal of the Service on any agency action which goals. 25 flycatcher territories in the Lower Rio is likely to jeopardize the continued Due to the our partnership with the Grande Management Unit (Service 2002, existence of any species proposed to be Santa Clara, San Juan, and San Ildefonso p. 84). listed under the Act or result in the Pueblos and their conservation efforts There were no large flycatcher nesting destruction or adverse modification of on the Rio Grande, we are excluding populations in the lower Rio Grande proposed critical habitat. these pueblos from the final flycatcher Management Unit to help guide us Decisions by the 5th and 9th Circuit critical habitat designation under toward a critical habitat area. Therefore, Courts of Appeals have invalidated our section 4(b)(2) of the Act (see Exclusions to identify the areas that would regulatory definition of ‘‘destruction or section below). contribute to meeting recovery goals for adverse modification’’ (50 CFR 402.02) this Management Unit, we used (see Gifford Pinchot Task Force v. U.S. Middle Rio Grande Management Unit, information based on known flycatcher Fish and Wildlife Service, 378 F. 3d New Mexico territories and breeding sites, guidance 1059 (9th Cir. 2004) and Sierra Club v. The Recovery Plan describes a goal of from the Recovery Plan, and knowledge U.S. Fish and Wildlife Service et al., 245 100 flycatcher territories in the Middle about stream habitat to determine F.3d 434, 442 (5th Cir. 2001)), and we Rio Grande Management Unit (Service critical habitat segments that may be do not rely on this regulatory definition 2002, p. 85). essential for flycatcher conservation (see when analyzing whether an action is We identified a large flycatcher below). Between 1993 and 2007, three likely to destroy or adversely modify nesting population on the middle Rio breeding sites had been detected along critical habitat. Under the statutory Grande in Valencia and Socorro the lower Rio Grande in Sierra and Dona provisions of the Act, we determine Counties, New Mexico. Flycatcher Ana Counties, New Mexico, with the destruction or adverse modification on territories were first detected in this first territories found in 1993 (Sogge and the basis of whether, with Management Unit in 1993. In 2007, a Durst 2008). During this time period the implementation of the proposed Federal high of 230 territories were detected number of known flycatcher territories action, the affected critical habitat (Sogge and Durst 2008), and since then detected annually fluctuated between would continue to serve its intended the population has grown to about 350 zero and eight (Sogge and Durst 2008). conservation role for the species. territories (Moore and Ahlers 2010, p. However, in 2011 the number of If a Federal action may affect a listed 1). The Rio Grande is within the territories detected within the Lower species or its critical habitat, the geographical area known to be occupied Rio Grande Management Unit increased responsible Federal agency (action by flycatchers at the time of listing, and due to improved survey effort (Service agency) must enter into consultation contains the physical or biological 2012, p. 32) and in 2012 is believed to with us. Examples of actions that are features essential for the conservation of have reached 25 territories (Hill, D. subject to the section 7 consultation the species which may require special 2012, pers. comm.). The Rio Grande is process are actions on State, tribal, management considerations or within the geographical area known to local, or private lands that require a protection, as described above. be occupied by flycatchers at the time Federal permit (such as a permit from We are designating as critical habitat of listing, and contains the physical or the Corps under section 404 of the Clean a 180.4-km (112.1-mi) segment of the biological features essential for the Water Act (33 U.S.C. 1251 et seq.) or a Rio Grande that extends from below conservation of the species which may permit from the Service under section Isleta Pueblo and the Bernalillo and require special management 10 of the Act) or that involve some other Valencia County line downstream past considerations or protection, as Federal action (such as funding from the Bosque del Apache and Sevilleta NWRs described above. Federal Highway Administration, and into the upper part of Elephant The lower Rio Grande, from Caballo Federal Aviation Administration, or the Butte Reservoir ending in Socorro Dam to Leasburg Dam (74.2 km, 46.1 Federal Emergency Management County about 3.2 km (2.0 mi) north of mi), was also proposed as critical Agency). Federal actions not affecting the Sierra County line, New Mexico habitat in this management unit. listed species or critical habitat, and (about 14.4 km, 9.0 mi of the upper part However, as a result of the commitment actions on State, tribal, local, or private of Elephant Butte Reservoir, to comprehensively manage flycatcher lands that are not federally funded or

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authorized, do not require section 7 Application of the ‘‘Adverse impoundment, groundwater pumping, consultation. Modification’’ Standard dam construction and operation, or any As a result of section 7 consultation, The key factor related to the adverse other activity which negatively changes we document compliance with the modification determination is whether, the frequency, magnitude, duration, requirements of section 7(a)(2) through with implementation of the proposed timing, or abundance of surface flow our issuance of: Federal action, the affected critical (and also subsurface groundwater (1) A concurrence letter for Federal habitat would continue to serve its elevation). These activities could actions that may affect, but are not intended conservation role for the permanently eliminate available likely to adversely affect, listed species species. Activities that may destroy or riparian habitat and food availability or or critical habitat; or adversely modify critical habitat are degrade the general suitability, quality, (2) A biological opinion for Federal those that alter the physical or structure, abundance, longevity, and actions that may affect and are likely to biological features to an extent that vigor of riparian vegetation and adversely affect, listed species or critical appreciably reduces the conservation microhabitat components necessary for habitat. value of critical habitat for the nesting, migrating, food, cover, and When we issue a biological opinion flycatcher. As discussed above, the role shelter. concluding that a project is likely to of critical habitat is to support life- (4) Actions that permanently destroy jeopardize the continued existence of a history needs of the species and provide or alter flycatcher habitat. Such listed species and/or destroy or for the conservation of the species. activities could include, but are not adversely modify critical habitat, we Section 4(b)(8) of the Act requires us limited to, discharge of fill material, provide reasonable and prudent to briefly evaluate and describe, in any draining, ditching, tiling, pond alternatives to the project, if any are proposed or final regulation that construction, and stream channelization identifiable, that would avoid the designates critical habitat, activities (due to roads, construction of bridges, likelihood of jeopardy and/or involving a Federal action that may impoundments, discharge pipes, destruction or adverse modification of destroy or adversely modify such stormwater detention basins, dikes, critical habitat. We define ‘‘reasonable habitat, or that may be affected by such levees, and others). These activities and prudent alternatives’’ (at 50 CFR designation. could permanently eliminate available 402.02) as alternative actions identified Activities that may affect critical riparian habitat and food availability or during consultation that: habitat, when carried out, funded, or degrade the general suitability, quality, (1) Can be implemented in a manner authorized by a Federal agency, should structure, abundance, longevity, and consistent with the intended purpose of result in consultation for the flycatcher. vigor of riparian vegetation and the action, These activities include, but are not microhabitat components necessary for (2) Can be implemented consistent limited to: nesting, migrating, food, cover, and with the scope of the Federal agency’s (1) Actions that would remove, thin, shelter. legal authority and jurisdiction, or destroy riparian flycatcher habitat, (5) Actions that result in alteration of (3) Are economically and without implementation of an effective flycatcher habitat from improper technologically feasible, and riparian habitat management plan livestock or ungulate management. Such (4) Would, in the Director’s opinion, resulting in the development of riparian activities could include, but are not avoid the likelihood of jeopardizing the vegetation of equal or better flycatcher limited to, unrestricted ungulate access continued existence of the listed species quality in abundance and extent. Such and use of riparian vegetation; excessive and/or avoid the likelihood of activities could include, but are not ungulate use of riparian vegetation destroying or adversely modifying limited to, removing, thinning, or during the non-growing season (i.e., leaf critical habitat. destroying riparian vegetation by drop to bud break); overuse of riparian Reasonable and prudent alternatives mechanical (mowing, cutting), chemical habitat and upland vegetation due to can vary from slight project (herbicides or burning), or biological insufficient herbaceous vegetation (low- modifications to extensive redesign or (grazing, biocontrol agents) means. growing, non-woody plants) available to relocation of the project. Costs These activities could reduce the livestock; and improper herding, water associated with implementing a amount or extent of riparian habitat development, or other livestock reasonable and prudent alternative are needed by flycatchers for sheltering, management actions. These activities similarly variable. feeding, breeding, and migrating. can reduce the volume and composition Regulations at 50 CFR 402.16 require (2) Actions that would appreciably of riparian vegetation, prevent Federal agencies to reinitiate diminish habitat value or quality regeneration of riparian plant species, consultation on previously reviewed through direct or indirect effects. Such physically disturb nests, alter floodplain actions in instances where we have activities could include, but are not dynamics, facilitate brood parasitism listed a new species or subsequently limited to, degradation of watershed and (laying eggs in flycatcher nests) by designated critical habitat that may be soil characteristics; diminishing river brown-headed cowbirds, alter affected and the Federal agency has surface and subsurface flow; negatively watershed and soil characteristics, alter retained discretionary involvement or altering river flow regimes; introduction stream shape, and facilitate the growth control over the action (or the agency’s of exotic plants, animals, or insects; or of flammable exotic plant species. discretionary involvement or control is habitat fragmentation from recreation Exemptions authorized by law). Consequently, activities. These activities could reduce Federal agencies sometimes may need to or fragment the amount or extent of Application of Section 4(a)(3) of the Act request reinitiation of consultation with riparian habitat needed by flycatchers The Sikes Act Improvement Act of us on actions for which formal for sheltering, feeding, breeding, and 1997 (Sikes Act) (16 U.S.C. 670a) consultation has been completed, if migrating. required each military installation that those actions with discretionary (3) Actions that would negatively alter includes land and water suitable for the involvement or control may affect the surface or subsurface river flow. conservation and management of subsequently listed species or Such activities could include, but are natural resources to complete an INRMP designated critical habitat. not limited to, water diversion or by November 17, 2001. An INRMP

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integrates implementation of the management; fish and wildlife habitat under section 101 of the Sikes Act (16 military mission of the installation with enhancement or modification; wetland U.S.C. 670a), if the Secretary determines stewardship of the natural resources protection, enhancement, and in writing that such plan provides a found on the base. Each INRMP restoration where necessary to support benefit to the species for which critical includes: fish and wildlife; and enforcement of habitat is proposed for designation.’’ (1) An assessment of the ecological applicable natural resource laws. We consult with the military on the needs on the installation, including the The National Defense Authorization development and implementation of need to provide for the conservation of Act for Fiscal Year 2004 (Pub. L. 108– INRMPs for installations with listed listed species; 136) amended the Act to limit areas species. We analyzed INRMPs (2) A statement of goals and priorities; eligible for designation as critical developed by military installations (3) A detailed description of habitat. Specifically, section 4(a)(3)(B)(i) located within the range of the critical management actions to be implemented of the Act (16 U.S.C. 1533(a)(3)(B)(i)) habitat designation for the flycatcher to to provide for these ecological needs; now provides: ‘‘The Secretary shall not determine if they meet the criteria for and designate as critical habitat any lands or exemption from critical habitat under (4) A monitoring and adaptive other geographical areas owned or section 4(a)(3) of the Act. The following management plan. controlled by the Department of areas are Department of Defense lands Among other things, each INRMP Defense, or designated for its use, that with completed, Service-approved must, to the extent appropriate and are subject to an integrated natural INRMPs within the proposed revised applicable, provide for fish and wildlife resources management plan prepared critical habitat designation.

TABLE 3—AREAS EXEMPTED FROM CRITICAL HABITAT UNDER SECTION 4(B)(3) OF THE ACT BY CRITICAL HABITAT UNIT

Areas meeting the Management Specific area definition of critical Areas exempted in unit habitat in km (mi) km (mi)

Santa Ynez ...... Vandenberg AFB INRMP ...... 14.7 km (9.1 mi) ...... 14.7 km (9.1 mi). San Diego ...... Camp Pendleton INRMP ...... 76.1 km (47.3 mi) ..... 76.1 km (47.3 mi). San Diego ...... Camp Pendleton INRMP/Fallbrook Naval Base INRMP shared boundary ...... 7.5 km (4.7 mi) ...... 7.5 km (4.7 mi). San Diego ...... Fallbrook Naval Base INRMP ...... 3.2 km (2.0 mi) ...... 3.2 km (2.0 mi).

Vandenberg AFB—Santa Ynez INRMP); (4) removal of exotic plant Based on the above considerations, Management Unit, California species; and (5) implementation of and in accordance with section Vandenberg AFB has an approved brown-headed cowbird management. 4(a)(3)(B)(i) of the Act, we have INRMP. The U.S. Air Force is Further, VAFB’s environmental staff determined that conservation efforts committed to working closely with the reviews projects and enforces existing identified in the 2011 INRMP for VAFB Service and California Department of regulations and orders that, through provide a benefit to the flycatcher and Fish and Game to continually refine the their implementation, avoid and its habitat. Therefore, lands subject to existing INRMP as part of the Sikes minimize impacts to natural resources, the INRMP for VAFB, which includes Act’s INRMP review process. Based on including flycatchers and their habitat. the lands leased from the Department of our review of the INRMP for this In addition, VAFB’s INRMP provides Defense by other parties, are exempt military installation, and in accordance protection to riparian habitats for from critical habitat designation under with section 4(a)(3)(B)(i) of the Act, we flycatchers by excluding cattle from section 4(a)(3) of the Act, and we are not have determined that the portion of the wetlands and riparian areas through the including approximately 14.7 km (9.1 Santa Ynez River within this installation and maintenance of fencing. mi) of the Santa Ynez River in this installation, identified as meeting the VAFB’s INRMP specifies periodic revised critical habitat designation because of this exemption. definition of critical habitat, is subject to monitoring of the distribution and the INRMP, and that conservation abundance of flycatcher populations on Marine Corps Base Camp Pendleton efforts identified in this INRMP will the base. (MCB Camp Pendleton)—San Diego provide a benefit to the flycatcher. Management Unit, California Therefore, lands within this installation Habitat features essential to flycatcher are exempt from critical habitat conservation exist on VAFB; however, The primary mission of Marine Corps designation under section 4(a)(3)(B) of designating critical habitat on this Base Camp Pendleton (MCB Camp the Act. We are not including military installation may impact its Pendleton) is military training. It is the approximately 14.7 km (9.1 mi) of mission of launching and tracking of Marine Corps’ premier amphibious riparian habitat on VAFB in this revised satellites and testing and evaluating training installation and its only west critical habitat designation because of missile systems, and therefore affect the coast amphibious assault training this exemption. nation’s military readiness. Activities center. The installation has been VAFB completed an INRMP in 2011, occurring on VAFB are currently being conducting air, sea, and ground assault which includes benefits for flycatchers conducted in a manner that minimizes training since World War II. MCB Camp through: (1) Avoidance of flycatchers impacts to flycatchers. This military Pendleton occupies over 50,586 ha and their habitat, whenever possible, in installation has an approved INRMP (125,000 ac) of coastal southern project planning; (2) scheduling of that provides a benefit to the flycatcher, California in the northwest corner of activities that may affect flycatchers and VAFB has committed to work San Diego County. Aside from nearly outside of the peak breeding period; (3) closely with the Service and the State 4,047 ha (10,000 ac) that is developed, measures for protection of riparian wildlife agency to continually refine most of the installation is largely zones (see Wetlands and Riparian their existing INRMP as part of the Sikes undeveloped land that is used for Habitats Management Plan Section in Act’s INRMP review process. training. MCB Camp Pendleton is

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situated between two major overlapping and close association with avoid degradation and loss of habitat metropolitan areas: Los Angeles, 132 km MCB Camp Pendleton and its INRMP, quality. (82 mi) to the north; and San Diego, 61 and both reference and inclusion of These measures are established or km (38 mi) to the south. Nearby urban conservation described in MCB Camp ongoing aspects of existing programs, areas include the City of Oceanside to Pendleton’s riparian biological opinion Base directives (such as the Riparian the south, the unincorporated (1–6–95–F–02; see USMC 2006, pp. 2– Ecosystem Conservation Plan), or community of Fallbrook to the east, and 4 and discussion below). measures that are being implemented as the City of San Clemente to the The MCB Camp Pendleton INRMP a result of previous consultations. MCB northwest. Aside from a portion of the incorporates measures outlined in a Camp Pendleton implements MCB Camp Pendleton’s border that is riparian biological opinion (Service installation directives to avoid and shared with the San Mateo Canyon 1995), which includes addressing the minimize adverse effects to the Wilderness Area on the Cleveland installation’s Riparian Ecosystem flycatcher, such as: National Forest and the Naval Weapons Conservation Plan (USMC 2007, (1) Assuring that aircraft operations Station Seal Beach—Detachment Appendix C). The Riparian Ecosystem shall not be conducted lower than an Fallbrook (Fallbrook Naval Weapons Conservation Plan was designed to altitude of 300 ft (91 m) over occupied Station), surrounding land use is urban maintain and enhance the biological riparian areas, to the maximum extent development, rural residential diversity of the riparian ecosystem on practical; development, and agricultural farming MCB Camp Pendleton, including habitat (2) Limiting vehicle operations to and ranching. In addition to military areas used by flycatchers. The existing roads in riparian areas; (3) Requiring helicopters to operate in training and associated activities and conceptual approach behind this excess of 61 m (200 ft) above ground infrastructure to support training, conservation plan is to sustain and level over riparian areas except during portions of MCB Camp Pendleton are restore riparian ecosystem dynamics so take-off or landing, from March 15 to leased to private and public entities and that natural plant and animal August 31; agencies. The largest single leaseholder communities on MCB Camp Pendleton (4) Restricting ground troops on the installation is California State are sufficiently resilient to coexist with movement in riparian areas to existing Parks, which includes a 50-year real current and future military training crossings, trails, and roads; and estate lease granted on September 1, activities (Service 1995, Appendix 1, p. (5) Prohibiting bivouacking in 1971, for 809 ha (2,000 ac) that 44). Under the reasonable and prudent riparian areas. encompasses San Onofre State Beach. measures of the riparian biological Current environmental regulations Requirements to the lessees are to opinion, implementation of the Riparian and restrictions apply to all endangered manage natural resources on leased Ecosystem Conservation Plan by the and threatened species on the lands in support of objectives and Marine Corps is nondiscretionary installation (including flycatcher) and consistent with the philosophies of (Service 1995, p. 31; USMC 2007, are provided to all users of ranges and MCB Camp Pendleton’s INRMP (USMC Appendix L; USMC 2006, Appendix E, training areas to guide activities and 2007, pp. 2–29). pp. 63–64). Areas or habitat containing protect the species and its habitat. First, The MCB Camp Pendleton INRMP features essential to the conservation of specific conservation measures are was prepared to assist installation staff flycatchers addressed by the applied to flycatcher and its habitat (as and users in their efforts to rehabilitate conservation plan, the Riparian BO, or outlined above). Second, MCB Camp and conserve natural resources while MCB Camp Pendleton’s INRMP include Pendleton’s environmental security staff maintaining consistency with the use of the Santa Margarita River and portions reviews projects and enforces existing MCB Camp Pendleton to train Marines, of the following creeks: Cristianitos, San regulations and orders that, through and sets the agenda for managing Mateo, San Onofre, Los Flores, Las their implementation, avoid and natural resources on MCB Camp Pulgas, Fallbrook, Pilgrim, and DeLuz minimize impacts to natural resources, Pendleton (USMC 2007, p. ES–1). The (70 FR 60886; October 19, 2005). including the flycatcher and its habitat. INRMP also provides ecosystem-based As described in Appendix F of the Third, MCB Camp Pendleton provides management to preserve, improve, and MCB Camp Pendleton INRMP (USMC training to personnel on environmental enhance ecosystem integrity on the 2007, pp. F–58–F–67), the following awareness for sensitive resources on the installation (USMC 2007, pp. 1–13). management practices and conservation base, including the flycatcher and its MCB Camp Pendleton completed its measures provide an indirect or direct habitat. As a result of these regulations INRMP in 2001, followed by a revised benefit for the flycatcher: and restrictions, activities occurring on and updated version in 2007 (USMC (1) Annual monitoring of population MCB Camp Pendleton are currently 2007), to address conservation and levels and distributions of the conducted in a manner that minimizes management recommendations within flycatcher; impacts to flycatcher habitat. the scope of the installation’s military (2) Incorporating survey data into the Based on the above considerations, mission, including conservation GIS species distribution database to and in accordance with section measures for flycatchers (USMC 2007, update the Environmental Operations 4(a)(3)(B)(i) of the Act, we have Appendix F, Section F.1, pp. F1–F5). Maps and utilize in conservation determined that conservation efforts Additionally, Marine Corps Air Station awareness and education programs; identified in the 2007 INRMP for MCB Camp Pendleton (MCAS Camp (3) Exotic vegetation control including Camp Pendleton (and MCAS Camp Pendleton) is fully encompassed within Arundo donax (giant reed) and Tamarix Pendleton INRMP as outlined above) MCB Camp Pendleton and recognizes spp. removal and control; will provide a benefit to the flycatcher itself as a separate installation with its (4) Exotic animal control (annual and riparian habitat on MCB Camp own INRMP that also provides a benefit cowbird control activities); Pendleton. Therefore, lands within this to the flycatcher and its habitat. MCAS (5) Programmatic instructions that installation are exempt from critical Camp Pendleton and its INRMP is limit impacts to flycatcher and its habitat designation under section 4(a)(3) assumed part of this discussion within habitat; and of the Act. We are not including the remainder of this exemption (6) Monitoring groundwater levels approximately 76.1 km (47.3 mi) of discussion for flycatcher due to its and basin withdrawals managed to habitat on MCB Camp Pendleton and an

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additional 7.5 km (4.7 mi) area shared flycatcher (Navy 2006, Chapter 3, pp. Exclusions with the adjacent Naval Weapons 110–112). Areas or habitat containing Application of Section 4(b)(2) of the Act Station Seal Beach—Detachment features essential to the conservation of Fallbrook (Fallbrook Naval Weapons flycatchers within the boundaries of Section 4(b)(2) of the Act states that Station) in this revised critical habitat Fallbrook Naval Weapons Station occur the Secretary shall designate and make designation because of this exemption. along portions of Pilgrim Creek and the revisions to critical habitat on the basis Naval Weapons Station Seal Beach– Santa Margarita River. of the best available scientific data after Detachment Fallbrook (Fallbrook Naval taking into consideration the economic Weapons Station)—San Diego The flycatcher primarily receives impact, national security impact, and Management Unit, California protection from activities at Fallbrook any other relevant impact of specifying Fallbrook Naval Weapons is the Naval Weapons Station because no any particular area as critical habitat. primary west coast supply point of training occurs on the installation. The The Secretary may exclude an area from ordnance for the U.S. Marine Corps and INRMP’s management and conservation critical habitat if he determines that the the large deck amphibious assault ships measures for the flycatcher consist of benefits of such exclusion outweigh the of the Pacific Fleet. Fallbrook Naval avoidance and minimization measures, benefits of specifying such area as part Weapons Station also has the only west applied to infrastructure development of the critical habitat, unless he coast maintenance facility for air- and maintenance to protect the determines, based on the best scientific launched missiles for the Pacific Fleet. flycatcher, that are part of the NEPA (42 data available, that the failure to The installation encompasses U.S.C. 4321 et seq.) approval process designate such area as critical habitat approximately 3,582 ha (8,852 ac) and is (Navy 2006, Chapter 3, pp. 110–112). will result in the extinction of the located within the southern foothills of The flycatcher also receives indirect species. In making that determination, the Santa Ana Mountains of northern protection through management and the statute on its face, as well as the San Diego County, adjacent to the conservation measures for the least legislative history are clear that the unincorporated community of Bell’s vireo such as: (1) Protection of Secretary has broad discretion regarding Fallbrook, California. It is bounded to flycatcher habitat through protection of which factor(s) to use and how much the north, west, and much of the south a subset of least Bell’s vireo priority weight to give to any factor. In considering whether to exclude a by MCB Camp Pendleton, with the management areas; (2) fencing that Santa Margarita River forming the particular area from the designation, we protects priority areas from cattle common border on the north between identify the benefits of including the grazing; (3) a Fire Management Plan that the two properties. Other than training area in the designation, identify the lands on MCB Camp Pendleton, provides a higher priority protection for benefits of excluding the area from the surrounding land use includes semi- riparian habitat, due to the limited designation, and evaluate whether the rural agricultural lands that include amount of riparian habitat on Fallbrook benefits of exclusion outweigh the plant nurseries, avocado and citrus Naval Weapons Station, such as core benefits of inclusion. If the analysis groves, vineyards, and limited urban areas of least Bell’s vireo and flycatcher indicates that the benefits of exclusion development. habitat; (4) consideration of prescribed outweigh the benefits of inclusion, the In the previous final critical habitat burns and livestock grazing as tools for Secretary may exercise his discretion to designation for flycatcher, we exempted the establishment of a buffer area exclude the area only if such exclusion Fallbrook Naval Weapons Station from between riparian habitat and would not result in the extinction of the the designation under section 4(a)(3)(B) shrublands; (5) timing and location species. of the Act because it was subject to an protections associated with prescribed When identifying the benefits of INRMP prepared under section 101 of burns; (6) assessment and mapping of inclusion for an area, we consider the the Sikes Act (16 U.S.C. 670a) that we riparian habitat to determine suitability additional regulatory benefits that area determined to provide a benefit to the for least Bell’s vireo occupation; and (7) would receive from the protection from flycatcher (70 FR 60886; October 19, implementation of nonnative vegetation adverse modification or destruction as a 2005). The INRMP was prepared to control measures, including removal of result of actions with a Federal nexus; assist installation staff and users in their Arundo donax (giant reed) (Navy 2006, the educational benefits of mapping efforts to support mission operations pp. 3–118). essential habitat for recovery of the and accommodate increased military listed species; and any benefits that may Based on the above considerations, mission requirements for national result from a designation due to State or and in accordance with section security and emergency homeland Federal laws that may apply to critical security, while meeting all 4(a)(3)(B)(i) of the Act, we have habitat. environmental compliance determined that conservation efforts The principal benefit of including an responsibilities. The INRMP also identified in the 2006 INRMP for area in a critical habitat designation is provides ecosystem-based management Fallbrook Naval Weapons Station the requirement for Federal agencies to to preserve, protect, and enhance provide a benefit to the flycatcher and ensure actions they fund, authorize, or natural resources on the installation, riparian habitat on the installation. carry out are not likely to result in the and provides the organizational support Therefore, lands subject to the INRMP destruction or adverse modification of and communication links necessary for for the Fallbrook Naval Weapons Station any designated critical habitat, the effective planning, implementation, and are exempt from critical habitat regulatory standard of section 7(a)(2) of administration of the installation’s designation under section 4(a)(3) of the the Act under which consultation is natural resources. The Fallbrook Naval Act. We are not including completed. Federal agencies must also Weapons Station completed its INRMP approximately 3.2 km (2.0 mi) of habitat consult with us on actions that may in 2006 (which was updated from an on Pilgrim Creek and portions of the affect a listed species to ensure their INRMP developed by the Naval Santa Margarita River that lie within the proposed actions are not likely to Ordnance Center Pacific Division in boundaries of the Fallbrook Naval jeopardize the continued existence of 1996) to address conservation and Weapons Station in this revised critical such species. The analysis of effects to management of its natural resources, habitat designation because of this critical habitat is a separate step and including conservation measures for the exemption. different standard from that of the

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effects to the species. Therefore, the that provides equal to or more expectation that the conservation difference in outcomes of these two conservation than a critical habitat management strategies and actions analyses represents the regulatory designation would provide. contained in a management plan will be benefit of critical habitat. In the case of the flycatcher, the implemented into the future; whether The two regulatory standards are benefits of critical habitat include the conservation strategies in the plan different and, significantly, the factors public awareness of flycatcher presence are likely to be effective; and whether that are reviewed under each standard and the importance of habitat the plan contains a monitoring program are different as well. The jeopardy protection. Where a Federal nexus or adaptive management to ensure that analysis investigates the action’s impact exists, the designation of critical habitat the conservation measures are effective to survival and recovery of the species may also increase habitat protection for and can be adapted in the future in with a focus on how the action affects the flycatcher, which may, in some response to new information. attributes such as numbers, distribution, cases, allow the species to move into After identifying the benefits of and reproduction of the species. On the currently unoccupied areas. other hand, the adverse-modification In practice, a Federal nexus exists inclusion and the benefits of exclusion, analysis investigates the action’s effects primarily on Federal lands or for we carefully weigh the two sides to to the designated habitat’s contribution projects undertaken by Federal agencies evaluate whether the benefits of to recovery with a focus on the or permits issued by Federal agencies. exclusion outweigh those of inclusion. conservation role the habitat plays for Since the flycatcher was listed in 1995, If our analysis indicates that the benefits the listed species. This difference in the we have been consulting with Federal of exclusion outweigh the benefits of two consultation standards and focus of agencies on their effects to the inclusion, we then determine whether review, in some instances, will lead to flycatcher both for projects on Federal exclusion would result in extinction. If different conclusions. Thus, critical lands, and for projects on privately exclusion of an area from critical habitat habitat designations may provide greater owned lands that had a Federal nexus will result in extinction, we will not benefits to the recovery of a species than to trigger consultation under section 7 of exclude it from the designation. would listing alone because it will the Act. These consultations have, in Based on the information provided by provide another and alternative focus on some instances, resulted in entities seeking exclusion, as well as factors affecting listed species. comprehensive conservation planning any additional public comments we Nonetheless, for many species (in at for specific areas across the species’ received, we evaluated whether certain least some locations) the outcome of range (i.e., Sprague Ranch in Kern lands in the proposed critical habitat these analyses in terms of any required Management Unit). These plans can were appropriate for exclusion from this habitat protections will be similar provide sufficient flycatcher habitat final designation pursuant to section because effects to habitat will often also protection for recovery of the species. 4(b)(2) of the Act. Table 4 below result in effects to the species. When we evaluate the existence of a provides the areas, streams, and When identifying the benefits of conservation plan when considering the approximate stream lengths (km, mi) of exclusion, we consider, among other benefits of exclusion, we consider a lands that meet the definition of critical things, whether exclusion of a specific variety of factors, including but not habitat but are being excluded under area is likely to result in conservation; limited to, whether the plan is finalized; section 4(b)(2) of the Act from the final the continuation, strengthening, or how it provides for the conservation of critical habitat rule. An explanation of encouragement of partnerships; or the essential physical or biological the basis for each exclusion is provided implementation of a management plan features; whether there is a reasonable below.

TABLE 4—PLAN TYPE, STREAM SEGMENTS, AND APPROXIMATE STREAM LENGTH EXCLUDED FROM FLYCATCHER CRITICAL HABITAT UNDER SECTION 4(b)(2) OF THE ACT BY MANAGEMENT UNIT

Approximate stream length Management unit and basis for exclusion Streams segments excluded excluded in km (mi)

Santa Clara Management Unit

Newhall Land and Farm Conservation Easement ...... Santa Clara River ...... 4.4 (2.7)

Santa Ana Management Unit

Western Riverside County Multiple Species HCP ...... Santa Ana River ...... 30.0 (18.6) San Timoteo Creek ...... 21.4 (13.3) Bautista Creek (two segments) ...... 3.1 (1.9) Temecula Creek (see San Diego Management Unit). Ramona Band of Cahuilla Partnership ...... Bautista Creek ...... 0.4 (0.3)

San Diego Management Unit

San Diego County Multiple Species HCP ...... San Dieguito River ...... 9.2 (5.7) San Diego River ...... 9.6 (6.0) Santa Ysabel Creek (upper) ...... 2.4 (1.5) Santa Ysabel Creek (lower) ...... 1.1 (0.7) Sweetwater River ...... 2.1 (1.3) Western Riverside County Multiple Species HCP ...... Temecula Creek (including Vail Lake) ...... 18.7 (11.6) Orange County Southern Subregional HCP ...... Can˜ada Gobernadora Creek ...... 4.7 (2.9) City of Carlsbad Habitat Management Plan ...... Agua Hedionda Creek (two segments) ...... 3.2 (2.0) 2.1 (1.3)

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TABLE 4—PLAN TYPE, STREAM SEGMENTS, AND APPROXIMATE STREAM LENGTH EXCLUDED FROM FLYCATCHER CRITICAL HABITAT UNDER SECTION 4(b)(2) OF THE ACT BY MANAGEMENT UNIT—Continued

Approximate stream length Management unit and basis for exclusion Streams segments excluded excluded in km (mi)

La Jolla Band of Luisen˜o Indians Management Plan ...... San Luis Rey River ...... 11.6 (7.2) Rincon Band of Luisen˜o Mission Indians Management Plan .... San Luis Rey River ...... 4.3 (2.7) Pala Band of Luisen˜o Mission Indians Partnership ...... San Luis Rey River 6.9 km (4.3 mi) segment plus four sepa- 8.3 (5.2) rate nearby parcels totaling an additional 1.4 km (0.9 mi). The Barona and Viejas Groups of Capitan Grande Band of San Diego River ...... 0.9 (0.6) Diegueno Mission Indians Partnership.

Owens Management Unit

Los Angeles Department of Water and Power Management Owens River ...... 128.5 (79.8) Plan.

Kern Management Unit

Sprague Ranch Management Plan ...... South Fork Kern River (north side) ...... 4.0 (2.5) Hafenfeld Ranch Management Plan ...... South Fork Kern River (south side) ...... 0.30 (0.20)

Salton Management Unit

Iipay Nation of Santa Ysabel Partnership ...... San Felipe Creek ...... 1.6 (1.0)

Little Colorado Management Unit

Zuni Pueblo Management Plan ...... Rio Nutria ...... 35.8 (22.2) Zuni River ...... 55.4 (34.4)

Middle Colorado Management Unit

LCR MSCP, including Hualapai Nation ...... Colorado River, including upper Lake Mead ...... 74.1 (46.0)

Pahranagat Management Unit

Key Pittman State Wildlife Area Management Plan ...... Pahranagat River (two segments) ...... 2.5 (1.6) 1.4 (0.9) Overton State Wildlife Area Management Plan ...... Muddy River ...... 3.1 (1.9)

Bill Williams Management Unit

LCR MSCP ...... Bill Williams River ...... 8.9 (5.6)

Hoover to Parker Dam Management Unit

LCR MSCP, including Fort Mojave and Chemehuevi Tribes .... Colorado River ...... 107.0 (66.4) LCR MSCP ...... Bill Williams River ...... 1.7 (1.0)

Parker Dam to Southerly International Border Management Unit

LCR MSCP, including Colorado River Indian Tribes and Colorado River (two segments) ...... 65.0 (40.4) Quechan (Fort Yuma) Indian Tribe. 148.0 (92.0)

San Juan Management Unit

Navajo Nation Management Plan ...... San Juan River (New Mexico) ...... 3.5 (2.2) San Juan River, (Utah)—43.5 km (27.0 mi) of south bank 51.6 (32.1) plus 8.1 km (5.1 mi) of both banks on eastern most portion of segment. Southern Ute Tribe Management Plan ...... Los Pinos River ...... 25.9 (16.1)

Verde Management Unit

Salt River Project Horseshoe and Bartlett Dams HCP ...... Verde River (Horseshoe Lake) ...... 9.6 (6.0) Yavapai-Apache Management Plan ...... Verde River (two segments) ...... 2.1 (1.3) 0.7 (0.4)

Roosevelt Management Unit

Salt River Project Roosevelt Lake HCP ...... Tonto Creek (Roosevelt Lake) ...... 12.8 (7.9) Salt River (Roosevelt Lake) ...... 16.3 (10.1) Freeport McMoRan Pinal Creek Management Plan ...... Pinal Creek ...... 5.8 (3.6)

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TABLE 4—PLAN TYPE, STREAM SEGMENTS, AND APPROXIMATE STREAM LENGTH EXCLUDED FROM FLYCATCHER CRITICAL HABITAT UNDER SECTION 4(b)(2) OF THE ACT BY MANAGEMENT UNIT—Continued

Approximate stream length Management unit and basis for exclusion Streams segments excluded excluded in km (mi)

Middle Gila and San Pedro Management Unit

San Carlos Apache Tribal Management Plan ...... San Pedro River (dispersed parcels) ...... 0.9 (0.6)

Upper Gila Management Unit

U-Bar Ranch Management Plan ...... Gila River (dispersed parcels) ...... 13.8 (8.6) San Carlos Apache Tribal Management Plan ...... Gila River ...... 31.3 (19.5) San Carlos Reservoir ...... Gila River (San Carlos Reservoir) ...... 26.8 (16.6)

Hassayampa and Agua Fria Management Unit

Tres Rios Safe Harbor Agreement ...... Gila River ...... 8.7 (5.4)

San Luis Valley Management Unit

San Luis Valley Partnership ...... Rio Grande ...... 119.5 (74.3) Conejos River ...... 64.9 (40.4)

Upper Rio Grande Management Unit

San Ildefonso Pueblo Management Plan ...... Rio Grande ...... 7.7 (4.8) Santa Clara Pueblo Partnership ...... Rio Grande ...... 10.2 (6.4) San Juan Pueblo (Ohkay Owingeh) Partnership ...... Rio Grande ...... 9.3 (5.8)

Lower Rio Grande Management Unit

Elephant Butte Irrigation District Canalization and Conserva- Rio Grande ...... 74.2 (46.1) tion Project.

Total ...... 1,270.4 (789.6) Note: Because of the odd shape of some properties excluded, the exclusion of just the south bank of a portion of the San Juan River, and other areas adjusted described in the Summary of Changes section, this total will not, when added to the amount of designated critical habitat, equal the total overall amount of stream length proposed as critical habitat.

Please note that we identified some specifying any particular area as critical impacts associated specifically with the areas within our proposed rule and habitat. In order to consider economic designation of critical habitat for the subsequent July 12, 2012, publication impacts, we prepared a draft economic species. The incremental conservation that we considered for exclusion under analysis of the entire proposed critical efforts and associated impacts are those section 4(b)(2) of the Act, but after habitat designation (which include areas not expected to occur absent the further analysis, we did not exclude we were considering for exclusion) and designation of critical habitat for the from this flycatcher critical habitat related factors (Industrial Economics species. In other words, the incremental revision. In some instances, we did not 2012, entire). costs are those attributable solely to the exclude an entire area we considered The intent of the final economic designation of critical habitat above and (Clark County HCP–Virgin River; Alamo analysis (FEA) is to quantify the beyond the baseline costs; these are the Lake State Wildlife Area–Big Sandy, economic impacts of all potential costs we consider in the final Santa Maria, and Bill Williams River; conservation efforts for the flycatcher; designation of critical habitat. The South Fork Kern River Wildlife Area– some of these costs will likely be analysis looks retrospectively at Kern River, including upper Lake incurred regardless of whether we baseline impacts incurred since the Isabella; and Elephant Butte Reservoir– designate critical habitat (baseline). The species was listed, and forecasts both Rio Grande) and in others, we did not economic impact of the final critical baseline and incremental impacts likely exclude a portion of the lands we habitat designation is analyzed by to occur with the designation of critical identified for consideration (Overton comparing scenarios both ‘‘with critical habitat. For a further description of the Wildlife Area–Virgin River, and habitat’’ and ‘‘without critical habitat.’’ methodology of the analysis, see Newhall Farm and Land–Santa Clara The ‘‘without critical habitat’’ scenario Chapter 2, ‘‘Framework for the River and Castaic Creek). Explanations represents the baseline for the analysis, Analysis,’’ of the economic analysis. for our conclusions can be found in the considering protections already in place The FEA also addresses how potential Summary of Comments and for the species (e.g., under the Federal economic impacts are likely to be Recommendations section of this final listing and other Federal, State, and distributed, including an assessment of rule. local regulations). The baseline, any local or regional impacts of habitat therefore, represents the costs incurred conservation and the potential effects of Exclusions Based on Economic Impacts regardless of whether critical habitat is conservation activities on government Under section 4(b)(2) of the Act, we designated. The ‘‘with critical habitat’’ agencies, private businesses, and consider the economic impacts of scenario describes the incremental individuals. The FEA measures lost

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economic efficiency associated with activities. Incremental impacts may activities are estimated to occur in the residential and commercial reach $5.8 million over 20 years. California Management Units. Areas development and public projects and likely to see the greatest development Water Management activities, such as economic impacts on pressure include Santa Barbara, water management and transportation Impacts to water management Ventura, Los Angeles, Riverside, San projects, Federal lands, small entities, activities may be the next largest of any Bernardino, and San Diego Counties, and the energy industry. Decision- of the affected economic activities; California, and Mohave County, makers can use this information to however, the majority of the impact of Arizona. assess whether the effects of the conservation efforts to protect flycatcher Because the revised critical habitat is designation might unduly burden a will occur even if critical habitat is not located within the 100-year floodplain, particular group or economic sector. designated (they are baseline impacts). the Federal Emergency Management The economic analysis provides All but two of the major dams and Agency will regulate real estate estimated costs of the foreseeable reservoirs within flycatcher proposed development in any critical habitat we potential economic impacts of the revised critical habitat, the Hansen Dam eventually designate. As a result, critical habitat designation for the and the Mojave Dam, are located along additional restrictions may be imposed flycatcher over the next 20 years (2012– river segments where the species’ by individual or local jurisdictions. The 2031), which, for most parts of the presence is either currently addressed, restrictions or regulations may require analysis, was determined to be the or otherwise well known to project flood control facilities or other special appropriate period for analysis. This is proponents and managing agencies. engineering, often making development because limited planning information is Associated impacts in these areas are in floodways impractical and available for most activities to forecast therefore assumed to be baseline, where prohibitively expensive. Due to existing activity levels for projects beyond a 20- most conservation activities and development restrictions, lands within year timeframe. The economic analysis associated costs will occur regardless of critical habitat that can be feasibly estimates impacts to water management whether critical habitat is designated. developed will be limited to areas activities, however, over a 30-year Incremental impacts over the next 30 where real estate demand is high period (2012–2041). years (assuming a 7 percent discount enough to justify the costs associated rate) range from $1.4 million to $9.6 with developing the floodplain. The FEA quantifies economic impacts million. These incremental impacts Incremental impacts to residential of flycatcher conservation efforts include the costs of conservation efforts development are estimated at $810,000 associated with the following categories associated with section 7 consultations over 20 years. These are related to of economic activity: (1) Water or the development of HCPs, as well as reduced land value associated with the management activities; (2) livestock administrative efforts to consider need to set aside land on-site for the grazing; (3) residential and related potential adverse modification of habitat flycatcher; the need to implement development; (4) tribal activities; (5) as part of future section 7 consultations. additional project modifications, such transportation; (6) mining and oil and as cowbird trapping, fencing, gas development; and (7) recreation Livestock Grazing monitoring, and habitat management; activities. The total potential Impacts to grazing activities are likely time delays; and administrative costs. incremental economic impacts for all of to be smaller relative to water and Because of the availability of alternative the categories in areas proposed as transportation activities, but are lands that are not designated as critical revised critical habitat over the next 20 anticipated to affect a broader habitat in these regions, these costs are years range from $11 million to $19 geographic area. Grazing currently likely to be borne by existing million ($950,000 to $1.7 million occurs in nearly all of the Management landowners in the form of reduced annualized), assuming a 7 percent Units that are included in this final value for their existing properties. The discount rate. A very brief summary of critical habitat revision. As a result, estimated impacts would be felt the estimated impacts within each some impacts may be experienced in immediately, in 2012, upon the effective category is provided below. Please refer most units. On Federal lands, date of this final rule (see DATES), and to the draft economic analysis for a reductions in grazing allotments are reflect the change in the future, comprehensive discussion of the possible depending on the specific productive use of the properties. potential impacts. conditions within the unit. The Tribal Activities Transportation estimated potential, present value incremental costs range from $2.2 Incremental impacts to tribal Our analysis suggests that million to $3.5 million over the 20-year activities of approximately $660,000 are transportation activities, such as road time period of the analysis. Impacts estimated to be associated with and bridge construction and include the administrative costs of administrative impacts over the 20-year maintenance, may experience the largest consultation with the Service, the lost time frame of the analysis. However, impacts. Transportation projects were value of grazing permits associated with tribal concerns focus on the potential more difficult to forecast, resulting in reductions in authorized Animal Unit- impact that the designation could have potential overstatement of the impacts. Months, costs of constructing and on their ability to make use of natural Our impact estimates were based on an maintaining fencing, and costs of resources, including water rights, on increased level of consultation activity cowbird trapping. their sovereign lands. The absence of (and resulting project modifications for some cost information related to flycatcher conservation efforts) that is Residential and Commercial potential impacts of flycatcher critical higher than the historical record of past Development habitat on tribal lands results in a activities. Transportation agencies at the Residential and related development probable underestimate of future costs Federal, State, and local level could activities are likely to be smaller in to tribal entities. Lands belonging to 19 incur costs associated with monitoring magnitude than grazing impacts; tribes included within the boundaries of and education activities, fencing, habitat however estimated impacts are proposed revised critical habitat under management and creation, timing concentrated over a smaller geographic consideration for exclusion from the restrictions, and administrative area. Nearly all impacts to development final designation, are subsequently

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excluded under section 4(b)(2) of the Lake Roosevelt; however, baseline a consultation under section 7 of the Act (see Exclusions section). economic impacts in these areas are Act; likely to be limited to $1.9 million over (2) There is a reasonable expectation Mining, and Oil and Gas Development 20 years. In addition, management that the conservation management In 2005, potential impacts to oil and activities at a picnic site in the San strategies and actions will be gas development were not identified as Bernardino National Forest results in implemented for the foreseeable future, a significant issue and thus were not present value baseline costs of $39,000. based on past practices, written considered in the previous economic A copy of the FEA with supporting guidance, or regulations; and analysis. However, proposed revised documents may be obtained by (3) The plan provides conservation critical habitat in the San Juan contacting the Arizona Ecological strategies and measures consistent with Management Unit in San Juan County, Service’s Office (see ADDRESSES) or by currently accepted principles of Utah, and La Plata County, Colorado, downloading from the Internet at http:// conservation biology. generated concern, because this area www.regulations.gov at Docket No. We believe that the following HCPs, serves as a highly developed source of FWS–R2–ES–2011–0053. plans, agreements, and partnerships oil and natural gas, with hundreds of fulfill the above criteria or otherwise existing wells. Due to the level of Exclusions Based on National Security provide benefits that outweigh the existing protections in riparian areas Impacts benefits from inclusion as critical required by, or agreed to by, oil and gas Under section 4(b)(2) of the Act, we habitat and are excluding these areas. We organize the following discussion of developers and land and resource consider whether there are lands owned exclusions below by Management Unit. managers, no project modification costs or managed by the Department of We will note below where a discussion are expected as a result of the Defense where a national security will occur if HCPs occur across multiple designation of revised flycatcher critical impact might exist. All Department of Management Units or we consolidate habitat. However, baseline Defense lands that met the definition of administrative costs of $33,000 for one multiple lands into a single discussion. flycatcher critical habitat were formal and six informal consultations exempted from designation (see Summary of Exclusions are expected due to limited oil and gas Exemptions section above). In addition activities, including seismic studies and Santa Clara Management Unit we found no other proposed areas that pipeline construction and maintenance. had national security impacts. Newhall Land and Farming Company In addition to baseline costs, the Consequently, the Secretary is not Natural River Management Plan analysis forecasts $11,000 in exercising his discretion to exclude any incremental administrative costs to Newhall Land and Farming Company areas from this final designation based consider adverse modification as part of (Newall LFC) has developed a Natural on impacts on national security. these consultations. River Management Plan (NRMP) While few active mineral mining Exclusions Based on Other Relevant (Valencia Company 1998, entire) for the activities occur within revised critical Impacts long-term conservation and habitat, the mining industry has management of the biological resources expressed concern that water use by Under section 4(b)(2) of the Act, we within their lands, including a portion existing or potential mining operations consider any other relevant impacts, in of the Santa Clara River (including the could be affected by flycatcher addition to economic impacts and Santa Clara-San Francisquito Creek conservation activities, particularly the impacts on national security. We confluence) that we proposed as designation of critical habitat. There are consider a number of factors including flycatcher critical habitat. The Corps currently no data that indicate whether whether the landowners have developed and CDFG approved the NRMP in 1998. existing or future diversions of water for any HCPs or other management plans The NRMP provides management mining activities (including for the area, or whether there are measures designed to protect, restore, groundwater pumping) reduce stream conservation partnerships that would be monitor, manage, and enhance habitat flow or modify hydrologic conditions to encouraged by designation of, or for multiple species, including the the degree that adversely impacts the exclusion from, critical habitat. In flycatcher, that occur along the main flycatcher and its riparian habitat. As addition, we look at any tribal issues, stem of the Santa Clara River within the such, the analysis does not quantify the and consider the government-to- Santa Clara Management Unit. probability or extent to which water use government relationship of the United Protective measures for flycatcher for mining purposes would need to be States with tribal entities. We also habitat in the NRMP include: (1) The curtailed or modified to remedy impacts consider any social impacts that might creation of new riverbed areas, to flycatcher. Additionally, impacts to occur because of the designation. including planting wetland mitigation extractive mining operations, such as We have excluded areas from critical sites; (2) revegetation of riparian areas; sand and gravel pits, that cause direct habitat based on land and resource (3) removal of invasive plants such as habitat loss may occur as the result of management plans, conservation plans giant reed (Arundo donax) and tamarisk critical habitat designation. However, or agreements, or other conservation (Tamarix sp.); (4) protecting wetlands project modification costs associated partnerships where the benefits of from urban runoff by establishing a with these operations are uncertain due exclusion from critical habitat outweigh revegetated upland buffer between to the limited consultation history, and, the benefits of including an area from developed areas and the river; (5) as a result, our analysis is unable to critical habitat. We consider a current implementing a Drainage Quality forecast economic impacts for mining land management or conservation plan Management Plan with Best activities. (HCPs as well as other types) to provide Management Practices to ensure water adequate management or protection if it quality within the river corridor; and (6) Recreation meets the following criteria: implementing the biological mitigation Incremental impacts to recreational (1) The plan is complete and provides measures for the Newhall Ranch activities are unlikely to result from the the same or better level of protection Specific Plan that includes restricting designation. In the baseline, activities from adverse modification or pets and off-road vehicles from the area may be affected at Lake Isabella and destruction than that provided through and restricting access to the river

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corridor by limiting hiking and biking to Summary of Comments and including these areas in critical habitat the river trail system. Recommendations section below). would be minimal. Of particular importance to the Below is an analysis of the relative Another important benefit of conservation of the flycatcher and its benefits of inclusion and exclusion of including lands in a critical habitat habitat under the NRMP is the inclusion 4.4 km (2.7 mi) of the Santa Clara designation is that the designation can of substantial conservation easements. Management Unit for which the serve to educate landowners, agencies, Conservation easements within the Secretary is exercising his discretion to tribes, and the public regarding the proposed Santa Clara Management Unit exclude from this final revised critical potential conservation value of an area, boundaries that have already been habitat designation under section 4(b)(2) and may help focus conservation efforts conveyed to the CDFG over of the Act. on areas of high conservation value for approximately 4.4 km (2.7 mi) of the certain species. Any information about Santa Clara River corridor east of Benefits of Inclusion—Newhall LFC the flycatcher that reaches a wide Interstate 5 (I–5). These easements will As discussed above under audience, including parties engaged in ensure substantial protection and Application of Section 4(b)(2) of the Act, conservation activities, is valuable. The provide for long-term management of Federal agencies, in consultation with designation of critical habitat may also flycatcher habitat so it will remain in a the Service, must ensure that their strengthen or reinforce some Federal natural condition in perpetuity. Use of actions are not likely to jeopardize the laws, such as CEQA, or the Clean Water the easement is limited to the continued existence of any listed Act. These laws analyze the potential preservation and enhancement of native species or result in the destruction or for projects to significantly affect the species and their habitats, including the adverse modification of any designated environment. Critical habitat may signal flycatcher and its habitat. Based on the critical habitat of such species. The the presence of sensitive habitat that placement of the conservation easement, difference in the outcomes of the could otherwise be missed in the review the physical and biological features that jeopardy analysis and the adverse process for these other environmental are essential to flycatcher conservation modification analysis represents the laws. are protected along this 4.4-km (2.7-mi) regulatory benefit and costs of critical We believe that there would be little segment of the Santa Clara River within habitat. educational and informational benefit the proposed Santa Clara Management The Santa Clara River is known to gained from including these portions of Unit. Three flycatcher breeding sites are have flycatcher territories and the the Santa Clara River within the known to occur along the Santa Clara portion of the river that is being designation because this area is well River and the stream was known to be evaluated for exclusion has undergone known as an important area for occupied at the time of listing. section 7 consultation under the flycatcher management and recovery. The NRMP combined with the jeopardy standard related to the NMRP The process of proposing and finalizing completed conservation easements and conservation easements. Critical revised critical habitat provided the provides for the flycatcher and the habitat along the Santa Clara River may opportunity for peer review and public physical and biological features provide a regulatory benefit for the comment; this process is valuable to essential to flycatcher habitat flycatcher under section 7 of the Act land owners and managers, such as conservation, and addresses when there is a Federal nexus present Newhall LFC, in prioritizing conservation issues from a coordinated, for a project that might adversely conservation and management of integrated perspective rather than a modify critical habitat. Because these identified areas. Additionally, because piecemeal, project-by-project approach, lands are privately owned, future managing agencies and partners such as thus resulting in coordinated landscape- Federal actions would likely be limited. the Corps, CDFG, and Newhall LFC’s scale conservation that can contribute to Yet, projects in wetland areas could developed and are implementing a long- genetic diversity by preserving covered require a 404 Corps permit under the term conservation easement that species populations, habitat, and Clean Water Act (33 U.S.C. 1251 et seq.) addresses flycatcher habitat, minimal interconnected linkage areas that and evaluation under section 7 of the additional educational benefits or support recovery of the flycatcher and Act for both jeopardy and adverse additional support for implementing other listed species. Additionally, we modification since flycatchers are other environment regulations are have completed section 7 consultation known to occur along the Santa Clara expected to be realized in these areas. under the Act on the effects of the River. In summary, we believe that NRMP on the flycatcher and found that However, as a result of the designating critical habitat would it would not jeopardize the continued establishment and implementation of provide minimal regulatory benefits existence of the species. protections associated with the under section 7(a)(2) of the Act for these The conservation easement under the conservation easement managed under 4.4 km (2.7 mi) along the Santa Clara NRMP provides permanent protection to Newhall LFC’s NRMP (which include River because of the long-term approximately 4.4 km (2.7 mi) of the the involvement of the Corps), it is protection and management established Santa Clara River, or about 15 percent unlikely that future Federal actions through Newhall LFC’s conservation of Newhall LFC lands proposed as would impact the overall goal of the easement. Because Newhall LFC and the critical habitat within the Santa Clara easements) for 4.4 km (2.7 mi) of the managing agencies not only expressly Management Unit. Approximately 689 Santa Clara River and cause adverse addressed flycatcher conservation in the ha (1,702 ac), or 85 percent, of Newhall modification of flycatcher critical easement, but also were fully engaged in LFC lands in the Santa Clara habitat. If actions that could affect the rulemaking process for designating Management Unit, representing other flycatchers and their habitat do occur, it critical habitat, few additional portions of the Santa Clara River (12.2 is likely that the protections provided educational benefits or support for other km, 8.8 mi) and Castaic Creek (4.8 km, the species and its habitat under section environmental regulations would be 3.0 mi), were also proposed as critical 7(a)(2) of the Act would be largely realized under these circumstances. habitat, but because they are not redundant with the protections offered currently conserved and managed by the NRMP and conservation Benefits of Exclusion—Newhall LFC through finalized easements, they are easement. Thus, we expect the A considerable benefit from excluding designated as critical habitat (see incremental regulatory benefit of a portion of Newhall LFC along the

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Santa Clara River as flycatcher critical designation are small. The conservation will not go extinct as a result of habitat is the maintenance and easement on portions of the Santa Clara exclusion from critical habitat strengthening of ongoing conservation River that encompass approximately 4.4 designation. Therefore, based on the partnerships. We believe conservation km (2.7 mi) of the Santa Clara above discussion, the Secretary is benefits would be realized by: (1) Management Unit, are already managed exercising his discretion to exclude Continuing and strengthening of our and conserved under the NRMP, and approximately 4.4 km (2.7 mi) of land effective working relationship with provide a long-term benefit to the in the Santa Clara Management Unit Newhall LFC to promote voluntary, flycatcher. There is also minimal from this final revised critical habitat proactive conservation of the flycatcher educational or ancillary benefit of designation. and its habitat as opposed to reactive designating critical habitat in this regulation; (2) allowance for continued conservation easement; education Santa Ana Management Unit meaningful collaboration and information regarding the importance of Western Riverside County Multiple cooperation in working toward species the easement was identified during the Species Habitat Conservation Plan recovery, including conservation development and implementation of (MSHCP) benefits that might not otherwise occur; Newhall LFC’s NRMP. Similarly, the The Western Riverside County and (3) encouragement of additional incremental regulatory benefit provided MSHCP is a comprehensive, multi- conservation easements and other by a critical habitat designation is jurisdictional plan encompassing conservation and management plan minimized because it is partially approximately 510,000 ha (1,260,000 ac) development in the future on Newhall redundant with the existing protection of the County of Riverside west of the LFC’s other lands for this and other within the conservation easement under San Jacinto Mountains (Dudek and federally listed and sensitive species. the NRMP. Therefore, we do not believe Associates Inc. 2003, p. 1.1). The The NRMP and associated critical habitat designation for the Western Riverside County MSHCP is a conservation easement provides flycatcher within the conservation subregional plan under the State’s substantial protection and management easement will provide significant Natural Community Conservation for the flycatcher and the physical and regulatory, educational, or ancillary Planning Act (NCCP) and was biological features essential to the benefits for these areas. conservation of the species, and The exclusion of NRMP conserved developed in cooperation with the addresses conservation issues from a and managed areas in the Santa Clara CDFG (Dudek and Associates Inc. 2003, coordinated, integrated perspective Management Unit will benefit the p. 1.1). The Western Riverside County rather than a piecemeal, project-by- partnership that we have with Newhall MSHCP is a multi-species conservation project approach (as would occur under LFC and other participating property program designed to minimize and section 7 of the Act), thus resulting in owners, and encourage the conservation mitigate the effects of expected habitat coordinated landscape-scale of lands associated with the loss and associated incidental take of conservation that can contribute to development and implementation of 146 listed and nonlisted ‘‘covered genetic diversity by preserving covered future conservation management plans. species’’, including the flycatcher species populations, habitat, and In summary, we find that excluding (Dudek and Associates Inc. 2003, p. interconnected linkage areas that areas from critical habitat that are 1.17). Conservation of the flycatcher is support recovery of the flycatcher and receiving both long-term conservation addressed in the Western Riverside other listed species. and management for the purpose of County MSHCP. A section 10(a)(1)(B) Additionally, many landowners protecting the flycatcher in the Santa permit for the Western Riverside County perceive critical habitat as an unfair and Clara Management Unit will preserve MSHCP was issued to 22 permittees on unnecessary regulatory burden given the our partnership with Newhall LFC and June 22, 2004, for a period of 75 years expense and time involved in encourage the conservation of lands (Service 2004, p. 1). Currently, there are developing and implementing associated with development. These 27 permittees for the Western Riverside conservation and management plans on partnership benefits are significant and County MSHCP. private lands. Exclusion of Newhall LFC outweigh the small potential regulatory, When fully implemented, the Western lands that are in conservation easements educational, and ancillary benefits of Riverside County MSHCP will conserve and managed by the NRMP will also including these portions of the Santa approximately 61,917 ha (153,000 ac) of strengthen the partnership between the Clara Management Unit in final revised new conservation lands (Additional Service and Newhall LFC, which may critical habitat for the flycatcher. Reserve Lands) in addition to the encourage other conservation Therefore, this conservation easement approximately 140,246 ha (347,000 ac) partnerships between our two entities in provides greater protection of flycatcher of pre-existing natural and open space the future. breeding and foraging habitat than could areas (Public/Quasi-Public (PQP) lands) In summary, we believe excluding be gained through the project-by-project (Dudek and Associates Inc. 2003, p. lands from critical habitat that are analysis through a designation of critical 1.16–1.17). The PQP lands include those covered by the NRMP conservation habitat. under the ownership of public or quasi- easements could provide the significant public agencies, primarily the USFS, Exclusion Will Not Result in Extinction benefit of maintaining our existing Corps, and Bureau of Land Management of the Species—Newhall LFC partnership and fostering new ones. (BLM), as well as permittee-owned or We determined that exclusion of 4.4 controlled open-space areas managed by Weighing Benefits of Exclusion Against km (2.7 mi) of the Santa Clara River in the State of California, Riverside Benefits of Inclusion—Newhall LFC the Santa Clara Management Unit from County, and Orange County Water We reviewed and evaluated the the final revised critical habitat District. The Additional Reserve Lands benefits of inclusion and benefits of designation for the flycatcher will not are not fully mapped or precisely exclusion for all lands owned by result in extinction of the species. These delineated (‘‘hard-lined’’); rather they Newhall LFC proposed as critical areas are permanently conserved and are textual descriptions of habitat habitat for the flycatcher. The benefits of managed to provide a benefit to the necessary to meet the conservation goals including conserved and managed lands flycatcher and its habitat, thus for all covered species within the in the final flycatcher critical habitat providing assurances that the species boundaries of the approximately

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202,343 ha (500,000 ac) Western management for those lands (Western Act. Thus, it is difficult to differentiate Riverside County MSHCP Conservation Riverside County Regional Conservation meaningfully between measures Area and are determined as Authority et al. 2003, p. 51). The 1995 implemented solely to minimize implementation of the Western final listing rule for the flycatcher impacts to critical habitat from those Riverside County MSHCP occurs. identified the most significant threats to implemented to minimize impacts to In our analysis of the effects to the species are the loss, modification, the flycatcher. Therefore, in the case of flycatcher for the issuance of the and fragmentation of its habitat, and the flycatcher, we believe any additional Western Riverside County MSHCP brood-parasitism by the brown-headed regulatory benefits of critical habitat permit, we acknowledged that specific cowbird (60 FR 10694; February 27, designation are minimized because the conservation objectives would be 1995). The Western Riverside County regulatory benefits from designation can provided in the Western Riverside MSHCP helps to address these threats be essentially indistinguishable from the County MSHCP to ensure that suitable through a regional planning effort, and benefits already afforded through habitat and known populations of outlines species-specific objectives and sections 7 and 9 of the Act. flycatcher would persist (Service 2004, criteria for flycatcher conservation. Another possible benefit of including p. 326). To this effect the specific In summary, the Western Riverside lands in a critical habitat designation is conservation objectives in the Western County MSHCP provides a that the designation can serve to educate Riverside County MSHCP for the comprehensive habitat-based approach landowners and the public regarding the flycatcher include conserving at least to the protection of covered species, potential conservation value of an area, 4,282 ha (10,580 ac) of core habitat including the flycatcher, by focusing on and may help focus conservation efforts (breeding and migration habitat) and lands essential for the long-term on areas of high conservation value for linkage areas (connection between core conservation of the covered species and certain species. Any information about areas) in the Western Riverside County appropriate management of those lands the flycatcher and its habitat that MSHCP Conservation Area (Dudek and (Western Riverside County Regional reaches a wide audience, including Associates Inc. 2003, p. B.475). The Conservation Authority et al. 2003, p. parties engaged in conservation Western Riverside County MSHCP will 51). activities, is valuable. In the case of the provide for conservation of 100 percent flycatcher, however, there have already Benefits of Inclusion—Western of breeding habitat for the flycatcher, been multiple occasions when the Riverside County MSHCP including a 100-m (328-ft) buffer public has been educated about the adjacent to breeding areas (Dudek and As discussed above under species. The Western Riverside County Associates Inc. 2003, p. B.475; Service Application of Section 4(b)(2) of the Act, MSHCP was developed over a 5-year 2004, pp. 27–28). In addition, the Federal agencies, in consultation with period, and has been in place for almost Western Riverside County MSHCP the Service, must ensure that their a decade. Implementation of the subarea requires compliance with a Riparian- actions are not likely to jeopardize the plans is formally reviewed yearly Riverine Areas and Vernal Pool policy continued existence of any listed through publicly available annual that contains provisions requiring 100 species or result in the destruction or reports, again providing extensive percent avoidance and long-term adverse modification of any designated opportunity to educate the public and management and protection of breeding critical habitat of such species. The landowners about the location of, and habitat not included in the conservation difference in the outcomes of the efforts to conserve, essential flycatcher areas, unless a Biologically Equivalent jeopardy analysis and the adverse habitat. As discussed above, the or Superior Preservation Determination modification analysis represents the permittees and stakeholders of the can demonstrate that a proposed regulatory benefit and costs of critical Western Riverside County MSHCP are alternative will provide equal or greater habitat. aware of the value of these lands to conservation benefits than avoidance The streams being evaluated are flycatcher conservation, and (Dudek and Associates Inc. 2003, p. known to be occupied by flycatchers conservation measures are already in B.475; Service 2004, pp. 26–28). In and have undergone section 7 place to protect essential occurrences of addition to these efforts, monitoring consultation under the jeopardy the flycatcher and its habitat. efforts would occur at least every 3 standard related to the Western Furthermore, essential habitat covered years to identify breeding and nesting Riverside County MSHCP. Portions of by the Western Riverside County sites; cowbird trapping would occur, if the proposed stream segments of the MSHCP was included in the previous necessary; and harmful nonnative Santa Ana River, Temecula Creek and proposed designation of critical habitat vegetation, such as giant reed (Arundo San Timoteo Creek, and the entirety of published in the Federal Register on donax) would be removed. the proposed Bautista Creek segment, October 12, 2004 (69 FR 60706) and the In our 2004 biological opinion we occur within the Western Riverside proposed designation published in the evaluated the effects of the Western County MSHCP boundary. These stream Federal Register on August 15, 2011 (76 Riverside County MSHCP on the segments were not within the FR 50542). Additionally, this flycatcher and its habitat that is found geographical area known to be occupied publication was announced in a press within the plan boundaries, and at the time of listing. Following listing, release and information was posted on determined the plan will not jeopardize flycatcher territories were detected the Service’s Web site, which ensured the continued existence of the flycatcher within these segments. As a result of that the proposal reached a wide (Service 2004, p. 227). In addition, we those territory detections and the audience. Therefore, much of the acknowledged in section 14.10 of the criteria we established, based upon educational benefits of critical habitat Implementing Agreement (IA) for the flycatcher dispersal, migration, and designation (such as providing Western Riverside County MSHCP that movement behaviors, these segments are information to the County of Riverside the plan provides a comprehensive, now considered occupied. and other stakeholders on areas habitat-based approach to the protection Therefore, regardless of critical important to the long-term conservation of covered species, including the habitat designation, these segments will of this species) have largely been flycatcher, by focusing on lands be subject to section 7 consultation realized through development and essential for the long-term conservation under the jeopardy standard as well as ongoing implementation of the Western of the covered species and appropriate the take prohibitions in section 9 of the Riverside County MSHCP, through both

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rules proposing these areas as critical Benefits of Exclusion—Western destruction or adverse modification of habitat, and through the Service’s public Riverside County MSHCP critical habitat. Furthermore, this plan outreach efforts. The benefits of excluding from critical goes beyond that requirement by Critical habitat designation can also habitat designation the stream segments including active management and result in ancillary conservation benefits within the boundaries of the Western protection of essential habitat areas. By to the flycatcher by triggering additional Riverside County MSHCP are significant excluding the stream segments within the boundaries of the Western Riverside review and conservation through other and include: (1) Conservation County MSHCP from critical habitat Federal and State laws such as the Clean management objectives for the designation, we are eliminating a Water Act and CEQA. These laws flycatcher and its habitat identified in the MSHCP, described above; (2) redundant layer of regulatory review for analyze the potential for projects to projects covered by the Western significantly affect the environment. continued and strengthened effective working relationships with all Western Riverside County MSHCP and However, essential habitat within encouraging new voluntary partnerships western Riverside County has been Riverside County MSHCP permittees and stakeholders to promote the with other landowners and jurisdictions identified in the Western Riverside to protect the flycatcher and other listed County MSHCP and is either already conservation of the flycatcher and its habitat; (3) continued meaningful species. As discussed above, the protected or targeted for protection prospect of potentially avoiding a future under the plans and thus we conclude collaboration and cooperation in working toward recovery of this species, designation of critical habitat provides a the potential regulatory benefits including conservation benefits that meaningful incentive to plan resulting from designation of critical might not otherwise occur; (4) proponents to extend voluntary habitat would be negligible. Thus encouragement of other entities within protections to endangered and review of development proposals the range of the flycatcher to complete threatened species and their habitats affecting essential habitat under CEQA HCPs; and (5) encouragement of under a conservation plan. Achieving by the County of Riverside already takes additional HCPs and other conservation comprehensive landscape-level into account the importance of this plan development in the future on other protection for listed species, such as the habitat to the species and the private lands that include the flycatcher flycatcher through their inclusion in protections required for the species and and other federally listed species. regional conservation plans, provides a its habitat under the MSHCP. As Additionally, the Orange County key conservation benefit to the species. discussed above, we conclude the Water District (OCWD) and the Corps Our ongoing partnerships with the potential regulatory benefits resulting cooperatively manage the lands within County of Riverside and permittees and from designation of critical habitat the Prado Flood Control Basin. Prado stakeholders of the regional Western would be negligible because the Basin is a core habitat area and supports Riverside County MSHCP, and the outcome of a future section 7 the largest known population of the landscape-level multiple species consultation would not result in greater flycatcher within the boundaries of the conservation planning efforts they conservation for flycatcher essential Western Riverside County MSHCP promote, are essential to achieve long- habitat than currently is provided under (Service 2004, p. 49). The benefits of term conservation of the flycatcher. the Western Riverside County MSHCP. excluding non-Federal lands within the As noted earlier, some permittees and Based on the above discussion, we Prado Flood Control Basin from critical stakeholders of the Western Riverside believe section 7 consultations for habitat designation are significant and County MSHCP permittees have expressed the view that critical habitat critical habitat designation conducted include: (1) That the conservation designation of lands covered by the under the standards required by the management objectives for the Western Riverside County MSHCP Ninth Circuit Court in the Gifford flycatcher and its habitat identified by the OCWD, described above; (2) devalues the conservation efforts of plan Pinchot Task Force v. U.S. Fish and continued and strengthened effective proponents and the partnerships Wildlife Service decision would provide working relationships with all Western fostered through the development and little conservation benefit and would be Riverside County MSHCP’s jurisdictions implementation of the plans, and would largely redundant with those benefits and stakeholders to promote the discourage development of additional attributable to listing as well as those conservation of the flycatcher and its HCPs and other conservation plans in already provided by the Western habitat; (3) continued meaningful the future. Permittees and stakeholders Riverside County MSHCP. Therefore, collaboration and cooperation in of the Western Riverside County we determine the regulatory benefits of working toward recovering this species, MSHCP have repeatedly stated that designating those stream segments as including conservation benefits that exclusion of lands covered by the plan flycatcher critical habitat, such as might not otherwise occur; and (4) would prove beneficial to our protection afforded through the section encouragement of additional HCP and partnership (WRCRCA 2011, p. 7). The 7(a)(2) consultation process, are other conservation plan development in Service has previously found that: (1) minimal. We also conclude that the the future on other private lands. Implementation of the avoidance, educational and ancillary benefits of We developed close partnerships with minimization, and mitigation measures designating essential habitat covered by the County of Riverside and other identified in the Western Riverside the Western Riverside County MSHCP stakeholders through the development County MSHCP will reduce impacts to would be minor because the location of of the Western Riverside County the flycatcher; (2) the conservation essential habitat for this species within MSHCP, which incorporates appropriate objectives for the flycatcher, as Western Riverside County and the protections and management (described described above, will be met; (3) the importance of conserving such habitat is above) for the flycatcher and its habitat, proposed action is not likely to well known through development and and the physical or biological features jeopardize the continued existence of implementation of the MSHCP and the essential to the conservation of this the species; and (4) the Western independent regulatory protection species. Those protections are Riverside County MSHCP provides a already provided under CEQA and the consistent with statutory mandates comprehensive, habitat-based approach Western Riverside County MSHCP. under section 7 of the Act to avoid to the protection of Covered Species,

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including the flycatcher (WRCRA et al. would result from critical habitat protection afforded through the section 2003, p. 51; Service 2004, p. 227). The designation are largely redundant with 7(a)(2) consultation process, are Service finds this plan is currently being the regulatory, educational, and minimal. We also conclude that the implemented. Where an existing HCP ancillary benefits already afforded educational and ancillary benefits of provides protection for a species and its through the Western Riverside County designating essential habitat covered by essential habitat within the plan area, MSHCP and under Federal and State the Western Riverside County MSHCP the benefits of preserving existing law. The outcome of any future section would be minor because the location of partnerships by excluding the covered 7 consultation would not result in essential habitat for this species within lands from critical habitat are most greater conservation for flycatcher Western Riverside County and the significant. Under these circumstances, essential habitat than currently is importance of conserving such habitat is excluding lands owned by or under the provided under the Western Riverside well known through development and jurisdiction of the permittees of the County MSHCP. implementation of the MSHCP and the Western Riverside County MSHCP and In contrast to the minor benefits of independent regulatory protection other stakeholders within the boundary inclusion, the benefits of excluding already provided under CEQA and the of the Western Riverside County lands covered by the Western Riverside Western Riverside County MSHCP. MSHCP promotes positive working County MSHCP from critical habitat Exclusion Will Not Result in Extinction relationships and eliminates impacts to designation are significant. Exclusion of of the Species—Western Riverside existing and future partnerships while these lands will help preserve the County MSHCP encouraging development of additional partnerships we developed with local HCPs for other species. jurisdictions and project proponents We determine that the exclusion of Large-scale HCPs, such as the Western through the development and ongoing stream segments within the boundaries Riverside County MSHCP, take many implementation of the Western of the Western Riverside County years to develop, and foster a strategic Riverside County MSHCP, and aid in MSHCP from the designation of critical ecosystem-based approach to habitat fostering future partnerships for the habitat for the flycatcher will not result conservation planning by addressing benefit of listed species. Designation of in extinction of the species. The Service conservation issues through a lands covered by the Western Riverside continues to review all Federal project coordinated approach. If local County MSHCP and cooperating proposals impacting riparian habitat jurisdictions were to require landowners stakeholders may discourage other occupied by the flycatcher through the to individually obtain incidental take partners from seeking, amending, or section 7 process, and will ensure that permits (ITPs) under section 10 of the completing NCCP–HCP plans that cover all development carried out does not Act prior to the issuance of a building the flycatcher and other listed species. jeopardize the continued existence of permit, the local jurisdiction would Designation of critical habitat does not the flycatcher. Thus, the section 7 incur no costs associated with the require that management or recovery process and protection provided by the landowner’s need for an ITP. However, actions take place on the lands included Western Riverside County MSHCP and this approach would result in in the designation. However, the cooperating stakeholders provide uncoordinated, project-by-project Western Riverside County MSHCP will assurances that this species will not go conservation that would be less likely to provide significant conservation and extinct as a result of excluding these achieve listed species recovery as management of the flycatcher and its lands from the critical habitat conservation measures would be habitat, and help achieve recovery of designation. Therefore, based on the determined on a project-by-project basis this species through habitat protections outlined above and per the instead of on a comprehensive, enhancement and management, provisions laid out in the landscape-level scale. We, therefore, functional connections to adjoining Implementation Agreement, to the believe that fostering with local habitat, and species monitoring efforts. extent consistent with the requirements jurisdictions to encourage the Additional HCPs or other species- of section 4(b)(2) of the Act, the development of regional HCPs affords habitat plans potentially fostered by this Secretary is exercising his discretion to proactive landscape-level conservation exclusion would also help to recover exclude from critical habitat, 30.0 km for multiple species. The exclusion from this and other federally listed species. (18.6 mi) of non-Federal lands on the critical habitat designation of covered In consideration of the relevant Santa Ana River (including Prado lands subject to protection and impact to current and future Basin), 21.4 km (13.3 mi) of San management under such plans will partnerships, as summarized in the Timoteo Creek (Canyon), 3.5 km (2.2 mi) promote these partnerships and result in Benefits of Exclusion—Western of non-Federal lands on Bautista Creek, greater protection for listed species, Riverside County MSHCP section above, and 18.7 km (11.6 mi) of Temecula including the flycatcher, than would be we determine the significant benefits of Creek (including Vail Lake) within the achieved through section 7 consultation. exclusion outweigh the minor benefits planning area boundary of the Western of critical habitat designation, because Riverside County MSHCP. Benefits of Exclusion Outweigh the any section 7 consultations for critical Ramona Band of Cahuilla Partnership Benefits of Inclusion—Western habitat designation conducted under the Riverside County MSHCP standards required by the Ninth Circuit Please see the end of this section for We reviewed and evaluated the Court in the Gifford Pinchot Task Force a discussion about our partnership with exclusion of stream segments within the v. U.S. Fish and Wildlife Service tribes from the Santa Ana, San Diego, boundaries of the Western Riverside decision would provide little and Salton Management Units. County MSHCP from our revised conservation benefit and would be San Diego Management Unit designation of critical habitat, and we largely redundant with those benefits determined the benefits of excluding attributable to listing as well as those San Diego Multiple Species these lands outweigh the benefits of already provided by the Western Conservation Program (MSCP)—County including them. The benefits of Riverside County MSHCP. Therefore, of San Diego Subarea Plan including these lands in the designation we determine the regulatory benefits of The San Diego MSCP is a are small because the regulatory, designating those stream segments as comprehensive, multi-jurisdictional educational, and ancillary benefits that flycatcher critical habitat, such as plan encompassing approximately

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235,626 ha (582,243 ac) of the County of avoidance, minimization, and segments of the Sweetwater and San San Diego (County of San Diego 1997, mitigation including restrictions on Dieguito Rivers that we proposed to p. 2.1). The San Diego MSCP is a clearing of occupied habitat during designate as flycatcher critical habitat subregional plan under the State’s NCCP breeding season (Service 1998, p. 36). occur within the San Diego MSCP and was developed in cooperation with Unavoidable impacts will be mitigated boundary. All of these segments were the County of San Diego and CDFG to ensure no net loss of wetlands not within the geographical area known (County of San Diego 1997, p. 1.1). The (Service 1998, p. 37). Area specific to be occupied at the time of listing. San Diego MSCP is a multi-species management directives will include Following listing, flycatcher territories conservation program designed to measures to provide appropriate were detected within these stream minimize and mitigate the effects of successional habitat, upland buffers for segments. As a result of those territory expected habitat loss and associated all known populations, cowbird control, detections and the criteria we incidental take of 85 federally listed and specific measures to protect against established, based upon flycatcher sensitive species, including the detrimental edge effects to this species, dispersal, migration, and movement flycatcher (County of San Diego 1997, p. and monitoring (Service 1998, p. 37). behaviors, these segments are now 1.1). Conservation of the flycatcher is In our 1998 biological opinion, we considered occupied. addressed in the San Diego MSCP. A evaluated the effects of the plan on the Therefore, regardless of critical section 10(a)(1)(B) permit was issued to flycatcher and its habitat that is found habitat designation, the segments will the County of San Diego under the San within the plan boundaries, and we be subject to a section 7 consultation Diego MSCP on March 12, 1998, for a determined the anticipated take is not under the jeopardy standard as well as period of 50 years (Service 1998, pp. 1– likely to jeopardize the flycatcher the take prohibitions in section 9 of the 14). When fully implemented, the San (Service 1998, p. 64). Furthermore, Act. Thus, it is difficult to differentiate Diego MSCP will conserve section 1.7 of the Implementation meaningfully between measures approximately 69,574 ha (171,920 ac) of Agreement for the County of San Diego implemented solely to minimize preserve lands within the Multi-Habitat Subarea Plan states that the plan impacts to critical habitat from those Planning Area (MHPA) (City of San provides comprehensive, long-term implemented to minimize impacts to Diego Subarea Plan), Pre-Approved habitat conservation for the protection the flycatcher. Therefore, in the case of Mitigation Areas (PAMA) (County of of multiple species, including the the flycatcher, we believe any additional San Diego Subarea Plan), and Mitigation flycatcher, and the preservation of regulatory benefits of critical habitat Area (City of Poway Subarea Plan). natural vegetation communities (County designation would be minimal because The County of San Diego has both of San Diego 1998, p. 2). The 1995 the regulatory benefits from designation ‘‘hardline’’ boundaries as well as listing rule for the flycatcher identified are essentially indistinguishable from preserve areas that without ‘‘hardline’’ the most significant threats to the the benefits already afforded through boundaries. In areas where the species are the loss, modification, and sections 7 and 9 of the Act. ‘‘hardline’’ boundaries are not defined, fragmentation of its habitat, and brood- Another possible benefit of including the County’s Subarea Plan identifies parasitism by the brown-headed lands in a critical habitat designation is areas where mitigation activities should cowbird (60 FR 10694; February 27, that the designation can serve to educate be focused to assemble its preserve areas 1995). landowners and the public regarding the or the PAMA. Those areas of the County In summary, the County of San Diego potential conservation value of an area, of San Diego Subarea preserve, and Subarea Plan incorporates special and may help focus conservation efforts other San Diego MSCP subarea management considerations necessary on areas of high conservation value for preserves that are either conserved or to manage the covered species, certain species. Any information about designated for inclusion in the preserves including the flycatcher, in a manner the flycatcher and its habitat that under the plan, are referred to as the that will provide for the conservation of reaches a wide audience, including MSCP preserve in this discussion. When the species within the plan area (County parties engaged in conservation completed the public sector (Federal, of San Diego 1998, p. 23). activities, is valuable. In the case of the State, and local government) and private flycatcher, however, there have already Benefits of Inclusion—San Diego landowners will have contributed been multiple occasions when the County MSCP 44,010 ha (108,750 ac) to the MSCP public has been educated about the preserve. Currently and in the future, As discussed above under species. The framework of the regional Federal and State governments, local Application of Section 4(b)(2) of the Act, San Diego MSCP was developed over a jurisdictions and special districts, and Federal agencies, in consultation with 7-year period, while the City and managers of privately owned lands will the Service, must ensure that their County subarea plans have been in manage and monitor their lands in the actions are not likely to jeopardize the place for over a decade. Implementation MSCP preserve for species and habitat continued existence of any listed of the subarea plans is formally protection (County of San Diego 1997, p. species or result in the destruction or reviewed yearly through publicly 2–1). adverse modification of any designated available annual reports and a public Specific conservation objectives in the critical habitat of such species. The meeting, again providing extensive County of San Diego Subarea Plan for difference in the outcomes of the opportunity to educate the public and the flycatcher include preserving and jeopardy analysis and the adverse landowners about the location of, and managing 1,344 ha (3,322 ac) of riparian modification analysis represents the efforts to conserve essential flycatcher habitat within the preserve planning regulatory benefit and costs of critical habitat. As discussed above, the permit area (Service 1998, p. 36). Additionally, habitat. holders of the City and County Subarea the County of San Diego Subarea Plan The streams we evaluated are known Plans are aware of the value of these requires surveys for the species, and to be occupied by flycatchers and have lands to flycatcher conservation, and occupied habitat will be identified and undergone section 7 consultation under conservation measures are already in avoided to the maximum extent the jeopardy standard related to the San place to protect essential occurrences of practicable (Service 1998, p. 37). Direct Diego County MSCP. Portions of the San the flycatcher and its habitat. effects to the flycatcher will be Diego River’s and Santa Ysabel Creek’s Furthermore, essential habitat within minimized through the requirement of stream segments and entire proposed the boundaries of the County of San

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Diego Subarea Plan was included in the determine the regulatory benefits of areas within the boundaries of the proposed designation published in the designating those stream segments as County of San Diego Subarea Plan. The Federal Register on August 15, 2011 (76 flycatcher critical habitat, such as SDCWA HCP is a multi-species FR 50542). This publication was protection afforded through the section conservation program designed to announced in a press release and 7(a)(2) consultation process, are minimize and mitigate the effects of information was posted on the Service’s minimal. We also conclude that the expected habitat loss and associated Web site, which ensured that the educational and ancillary benefits of incidental take of 63 listed and proposal reached a wide audience. designating essential habitat covered by nonlisted ‘‘covered species,’’ including Therefore, the educational benefits of the County of San Diego Subarea plan the flycatcher (SDCWA 2011, p. ES.1). critical habitat designation (such as would be minor because the location of By excluding the approximately 24.5 km providing information to the County of essential habitat for this species within (15.2 mi) of stream segments within the San Diego and other stakeholders on San Diego County and the importance of boundaries of the County of San Diego areas important to the long-term conserving such habitat is well known Subarea Plan from critical habitat conservation of this species) have through development and designation, we are eliminating a largely been realized through implementation of the subarea plans redundant layer of regulatory review for development and ongoing and the independent regulatory projects covered by the County of San implementation of the HCP, by protection already provided under Diego Subarea Plan and encouraging proposing these areas as critical habitat, CEQA and the County of San Diego new voluntary partnerships with other and through the Service’s public Subarea Plan. landowners and jurisdictions to protect outreach efforts. the flycatcher and other listed species. Critical habitat designation can also Benefits of Exclusion—San Diego County MSCP As discussed above, the prospect of result in ancillary conservation benefits potentially avoiding a future to the flycatcher by triggering additional The benefits of excluding from designation of critical habitat provides a review and conservation through other designated flycatcher critical habitat the meaningful incentive to plan Federal and State laws. Critical habitat collection of streams totaling proponents to extend voluntary designation can also result in ancillary approximately 24.5 km (15.2 mi) within protections to endangered and conservation benefits to the flycatcher the boundaries of the County of San threatened species and their habitats by triggering additional review and Diego Subarea Plan are significant and under a conservation plan. Achieving conservation through other Federal and include: (1) Conservation management comprehensive landscape-level objectives for the flycatcher and its State laws such as the Clean Water Act protection for listed species, such as the habitat identified in the MSCP, and CEQA. These laws analyze the flycatcher through their inclusion in summarized above; (2) continued and potential for projects to significantly regional conservation plans, provides a strengthened effective working affect the environment. However, key conservation benefit to the species. relationships with all San Diego MSCP essential habitat within San Diego Our ongoing partnerships with the permittees and stakeholders to promote County has been identified in the County of San Diego, SDCWA, other the conservation of the flycatcher and Subarea Plan and is either already MSCP participants, and the landscape- its habitat; (3) continued meaningful protected or targeted for protection level multiple species conservation collaboration and cooperation in under the plans and thus we conclude planning efforts they promote, are working toward recovery of this species, the potential regulatory benefits essential to achieve long-term resulting from designation of critical including conservation benefits that conservation of the flycatcher. habitat would be negligible. Thus might not otherwise occur; (4) review of development proposals encouragement of other entities within As noted earlier, some MSCP affecting essential habitat under CEQA the range of the flycatcher to complete permittees have expressed the view that by the San Diego County already takes HCPs or subarea plans under the MSCP; critical habitat designation of lands into account the importance of this and (5) encouragement of additional covered by the MSCP devalues the habitat to the species and the HCP and other conservation plan conservation efforts of plan proponents protections required for the species and development in the future on other and the partnerships fostered through its habitat under the Subarea Plan. As private lands that include the flycatcher the development and implementation of discussed above, we conclude the and other federally listed species. the plans, and would discourage potential regulatory benefits resulting We developed close partnerships with development of additional HCPs and from designation of critical habitat the County of San Diego and several other conservation plans in the future. would be negligible because the other stakeholders through the Permittees of the County of San Diego outcome of a future section 7 development of the San Diego MSCP, Subarea Plan have repeatedly stated that consultation would not result in greater which incorporates appropriate exclusion of lands covered by the plan conservation for flycatcher essential protections and management (described would prove beneficial to our habitat than currently is provided under above) for the flycatcher, its habitat, and partnership (SDCWA 2011a, pp. 1–5). the County of San Diego Subarea Plan. the physical or biological features The Service has previously found that: Based on the above discussion, we essential to the conservation of this (1) Implementation of the avoidance, believe section 7 consultations for species. Those protections are minimization, and mitigation measures critical habitat designation conducted consistent with statutory mandates identified in the County of San Diego under the standards required by the under section 7 of the Act to avoid Subarea Plan will reduce impacts to the Ninth Circuit Court in the Gifford destruction or adverse modification of flycatcher; (2) the conservation Pinchot Task Force v. U.S. Fish and critical habitat. Furthermore, this plan objectives for the flycatcher, Wildlife Service decision would provide goes beyond that requirement by summarized above, will be met; (3) the little conservation benefit and would be including active management and proposed action is not likely to largely redundant with those benefits protection of essential habitat areas. jeopardize the continued existence of attributable to listing as well as those Additionally, the San Diego County the species; and (4) the County of San already provided by the County of San Water Authority (SDCWA) has also Diego Subarea Plan incorporates special Diego Subarea Plan. Therefore, we completed an HCP, which includes management considerations necessary

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to manage the ‘‘covered species,’’ would result from critical habitat provide assurances that this species will including the flycatcher, in a manner designation are largely redundant with not go extinct as a result of excluding that will provide for the conservation of the regulatory, educational, and these lands from the critical habitat the species within the plan area (County ancillary benefits already afforded designation. Therefore, based on the of San Diego 1998, p. 23; Service 1998, through the County of San Diego above discussion and to the extent pp. 36, 60). Where an existing HCP Subarea Plan and under Federal and consistent with the requirements of provides protection for a species and its State law. In contrast to the minor section 4(b)(2) of the Act, the Secretary essential habitat within the plan area, benefits of inclusion, the benefits of is exercising his discretion to exclude the benefits of preserving existing excluding lands covered by the County from critical habitat, 9.2 km (5.7 mi) of partnerships by excluding the covered of San Diego Subarea Plan from critical the San Dieguito River, 9.6 km (6.0 mi) lands from critical habitat are most habitat designation are significant. of the San Diego River, 2.1 km (1.3 mi) significant. Under these circumstances, Exclusion of these lands will help of non-Federal lands on the Sweetwater excluding lands owned by or under the preserve the partnerships we developed River, 2.4 km (1.5 mi) of upper Santa jurisdiction of the permittees of an HCP with local jurisdictions and project Ysabel Creek, and 1.1 km (0.7 mi) of promotes positive working relationships proponents through the development lower Santa Ysabel Creek within the and eliminates impacts to existing and and ongoing implementation of the planning area boundary for County of future partnerships while encouraging County of San Diego Subarea Plan, and San Diego Subarea lands. development of additional HCPs for aid in fostering future partnerships for Western Riverside County Multiple other species. the benefit of listed species. Designation Species HCP Large-scale HCPs, including the of lands covered by the County of San County of San Diego Subarea Plan, take Diego Subarea Plan may discourage For the analysis of the exclusion of many years to develop, and foster a other partners from seeking, amending, streams in the San Diego Management strategic ecosystem-based approach to or completing NCCP–HCP plans that Unit under the Western Riverside habitat conservation planning by cover the flycatcher and other listed County Multiple Species HCP, see the addressing conservation issues through species. Designation of critical habitat related discussion under the Summary a coordinated approach. If local does not require that management or of Exclusions, Santa Ana Management jurisdictions were to require landowners recovery actions take place on the lands Unit. to individually obtain ITPs under included in the designation. The County Orange County Southern Subregional section 10 of the Act prior to the of San Diego Subarea Plan, however, HCP issuance of a building permit, the local will provide significant conservation jurisdiction would incur no costs and management of the flycatcher and The Orange County Southern associated with the landowner’s need its habitat, and help achieve recovery of Subregion HCP is a comprehensive, for an ITP. However, this approach this species through habitat large-scale plan encompassing would result in uncoordinated, project- enhancement and management, approximately 34,811 ha (86,021 ac) of by-project conservation that would be functional connections to adjoining land in southern Orange County. This less likely to achieve listed species habitat, and species monitoring efforts. HCP is a subregional plan under the recovery as conservation measures Additional HCPs or other species State’s NCCP and was developed in would be determined on a project-by- habitat plans potentially fostered by this cooperation with the CDFG. The Orange project basis instead of on a exclusion would also help to recover County Southern Subregion HCP was comprehensive, landscape-level scale. this and other federally listed species. developed in support of applications for We, therefore, want to continue to foster Therefore, in consideration of the incidental take permits by Orange partnerships with local jurisdictions to relevant impact to current and future County, Rancho Mission Viejo (RMV), encourage the development of regional partnerships, as summarized in the and the Santa Margarita Water District HCPs that afford proactive landscape- Benefits of Exclusion—County of San in connection with proposed residential level conservation for multiple species. Diego Subarea Plan under the San Diego development and related actions in We believe the exclusion from critical MSCP section above, we determine the southern Orange County. The Orange habitat designation of covered lands significant benefits of exclusion County Southern Subregion HCP is a subject to protection and management outweigh the minor benefits of critical multi-species conservation program that under such plans will promote these habitat designation. minimizes and mitigates the effects of partnerships and result in greater expected habitat loss and associated protection for listed species, including Exclusion Will Not Result in Extinction incidental take of 32 covered species, the flycatcher, than would be achieved of the Species—San Diego County including the flycatcher. Conservation through section 7 consultation. MSCP of the flycatcher is addressed in the We determine that the exclusion of Orange County Southern Subregion Benefits of Exclusion Outweigh the 24.5 km (15.2 mi) of stream segments HCP. A section 10(a)(1)(B) permit for the Benefits of Inclusion—San Diego within the boundaries of the County of Orange County Southern Subregion HCP County MSCP San Diego Subarea Plan from the on January 10, 2007, was issued for a We reviewed and evaluated the designation of critical habitat for the period of 75 years (Service 2007, p. 1). exclusion of approximately 24.5 km flycatcher will not result in extinction of When fully implemented, the Orange (15.2 mi) of stream segments within the the species. The Service continues to County Southern Subregion HCP will boundaries of the County of San Diego review all Federal project proposal conserve approximately 12,313 ha Subarea Plan from our revised impacting riparian habitat occupied by (30,426 ac) of Habitat Reserve and 1,803 designation of critical habitat, and we the flycatcher through the section 7 ha (4,456 ac) of supplemental open determined the benefits of excluding process, and will ensure that all space areas, which will consist these lands outweigh the benefits of development carried out does not primarily of land owned by Rancho including them. The benefits of jeopardize the continued existence of Mission Viejo and three pre-existing including these lands in the designation the flycatcher. Thus, the section 7 County parks (Service 2007, pp. 10, 19). are small because the regulatory, process and protection provided by the The Orange County Southern Subregion educational, and ancillary benefits that County of San Diego Subarea Plan HCP provides for a large, biologically

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diverse and permanent habitat reserve County Southern Subregion HCP on the prohibitions in section 9 of the Act. that will protect: (1) Large blocks of flycatcher and its habitat found within Thus, it is difficult to differentiate natural vegetation communities that the plan boundaries, and determined meaningfully between measures provide habitat for the covered species; the plan will not jeopardize the implemented solely to minimize (2) ‘‘important’’ and ‘‘major’’ continued existence of the flycatcher impacts to critical habitat from those populations of the covered species in (Service 2007, p. 123). In addition, we implemented to minimize impacts to key locations; (3) wildlife corridors and acknowledged in section 10.3.4 of the the flycatcher. Therefore, in the case of habitat linkages that connect the large IA for the Orange County Southern the flycatcher, we believe any additional habitat blocks and covered species Subregion HCP that the plan provides a regulatory benefits of critical habitat populations to each other, the Cleveland comprehensive habitat-based approach designation would be minimal because National Forest, and the adjacent to the protection of covered species and the regulatory benefits from designation Orange County Central-Coastal NCCP– their habitats by focusing on the lands are essentially indistinguishable from HCP; and (4) the underlying and aquatic resource areas essential for the benefits already afforded through hydrogeomorphic processes that the long-term conservation of the sections 7 and 9 of the Act. support the major vegetation covered species (including the Another possible benefit of including communities providing habitat for the flycatcher), and by providing for lands in a critical habitat designation is covered species, including the appropriate management for those lands that the designation can serve to educate flycatcher (Service 2007, p. 10). (Service 2007, p. 64). landowners and the public regarding the Specific conservation objectives in the In summary, the Orange County potential conservation value of an area, Orange County Southern Subregion HCP Southern Subregion HCP provides a and may help focus conservation efforts for the flycatcher include preserving comprehensive, habitat-based approach on areas of high conservation value for and managing 249 ha (615 ac) of nesting to the protection of covered species and certain species. Any information about and foraging habitat within the Habitat their habitats, including the flycatcher, the flycatcher and its habitat that Reserve (Service 2007, p. 120). by focusing on lands and aquatic reaches a wide audience, including Conserved land in the Habitat Reserve resources essential for the long-term parties engaged in conservation will be maintained and managed in conservation of the covered species and activities, is valuable. In the case of the perpetuity for the benefit of the appropriate management of those lands flycatcher, however, there have already flycatcher and other species covered by (Orange County Southern Subregion been multiple occasions when the the plan. To offset any loss of riparian HCP 2003, p. 64). public has been educated about the habitat for the flycatcher at the Prima Benefits of Inclusion—Orange County species. The planning process for the Deshecha Landfill and within the Southern Subregion HCP Orange County Southern Subregion HCP Habitat Reserve, an additional 4 ha (10 began in 1992, when the County of ac) of willow riparian habitat within the As discussed above under Orange formally enrolled its Landfill will be created and managed, in Application of Section 4(b)(2) of the Act, unincorporated area in the NCCP perpetuity, for species covered by the Federal agencies, in consultation with program, and then signed a Planning Orange County Southern Subregion the Service, must ensure that their Agreement with CDFG and the Service HCP, including the flycatcher. actions are not likely to jeopardize the in 1993. Planning efforts were delayed Therefore, 100 percent of flycatcher continued existence of any listed for a time, but scoping and planning locations in the Lower Can˜ ada species or result in the destruction or Gobernadora ‘‘important’’ population in adverse modification of any designated meetings continued. The Orange County a ‘‘key’’ location will be included in the critical habitat of such species. The Southern Subregion HCP was finalized Habitat Reserve (Service 2007, p. 123). difference in the outcomes of the in 2006. As discussed above, the permit Management actions for the flycatcher jeopardy analysis and the adverse holders of the Orange County Southern within the Habitat Reserve will include modification analysis represents the Subregion HCP are aware of the value of the control of nonnative species through regulatory benefit and costs of critical these lands to the conservation the implementation of a control plan, habitat. flycatcher, and conservation measures including cowbird trapping and The stream we evaluated is known to are already in place to protect essential management of nonnative plant species be occupied by flycatchers and has occurrences of the flycatcher and its that occur in riparian habitats (Service undergone section 7 consultation under habitat. 2007, p. 121). Any clearing of riparian the jeopardy standard related to the Furthermore, essential habitat covered habitat will occur outside of breeding Orange County Southern Subregion by the Orange County Southern season; however, if clearing must take HCP. The proposed stream segment of Subregion HCP was included in the place during breeding season, focused Can˜ ada Gobernadora Creek is entirely proposed designation published in the surveys will be conducted and measures located within the HCP boundary. Federal Register on August 15, 2011 (76 implemented to avoid impacts to Can˜ ada Gobernadora Creek was not FR 50542). This publication was flycatcher nests and young (Service within the geographical area known to announced in a press release and 2007, p. 121). The Orange County be occupied at the time of listing. information was posted on the Service’s Southern Subregion HCP requires Following listing, flycatcher territories Web site, which ensured that the periodic reviews to assess the effects of were detected within this stream proposal reached a wide audience. grazing for fuel modification purposes segment. As a result of those territory Therefore, the educational benefits of and make recommendations to detections and the criteria we critical habitat designation (such as maximize benefit to covered species, established, based upon flycatcher providing information to the County of including the flycatcher (Service 2007, dispersal, migration, and movement Orange and other stakeholders on areas p. 121). Monitoring for the flycatcher behaviors, this segment is now important to the long-term conservation will also be conducted on county considered occupied. of this species) have largely been parklands within the Habitat Reserve Therefore, regardless of critical realized through development and (Service 2007, p. 121). habitat designation, this segment will be ongoing implementation of the Orange In our 2007 biological opinion, we subject to a section 7 consultation under County Southern Subregion HCP, by evaluated the effects of the Orange the jeopardy standard as well as the take proposing these areas as critical habitat,

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and through the Service’s public Benefits of Exclusion—Orange County flycatcher through their inclusion in outreach efforts. Southern Subregion HCP regional conservation plans, provides a Critical habitat designation can also The benefits of excluding from key conservation benefit to the species. result in ancillary conservation benefits designated critical habitat the Our ongoing partnerships with the to the flycatcher by triggering additional approximately 4.7 km (2.9 mi) of County of Orange and the subregional review and conservation through other Can˜ ada Gobernadora Creek within the Orange County Southern Subregion HCP Federal and State laws such as the Clean boundaries of the Orange County participants, and the landscape-level multiple species conservation planning Water Act and CEQA. These laws Southern Subregion HCP are significant efforts they promote, are essential to analyze the potential for projects to and include: (1) Conservation achieve long-term conservation of the significantly affect the environment. management objectives for the flycatcher and its habitat identified in flycatcher. However, essential habitat within the As noted earlier, some Orange County the HCP, described above; (2) continued County of Orange has been identified in Southern Subregion HCP permittees and strengthened effective working the Orange County Southern Subregion have expressed the view that critical relationships with all Orange County HCP and is either already protected or habitat designation of lands covered by Southern Subregion HCP permittees and targeted for protection under the plans, an HCP devalues the conservation stakeholders to promote the and thus we conclude the potential efforts of plan proponents and the conservation of the flycatcher and its regulatory benefits resulting from partnerships fostered through the habitat; (3) continued meaningful designation of critical habitat would be development and implementation of the collaboration and cooperation in negligible. Thus review of development plans, and would discourage proposals affecting essential habitat working toward recovery of this species, development of additional HCPs and under CEQA by the County of Orange including conservation benefits that other conservation plans in the future. already takes into account the might not otherwise occur; (4) Permittees of the Orange County importance of this habitat to the species encouragement of other entities within Southern Subregion HCP have and the protections required for the the range of the flycatcher to complete repeatedly stated that exclusion of lands species and its habitat under the HCPs; and (5) encouragement of covered by the plan would prove Subregion plan. As discussed above, we additional HCP and other conservation beneficial to our partnership (RMV conclude the potential regulatory plan development in the future on other 2011, pp. 1–7). The Service has benefits resulting from designation of private lands that include the flycatcher previously found that: (1) critical habitat would be negligible and other federally listed species. Implementation of the avoidance, because the outcome of a future section We developed close partnerships with minimization, and mitigation measures 7 consultation would not result in the County of Orange and several other identified in the Orange County greater conservation for flycatcher stakeholders through the development Southern Subregion HCP will reduce essential habitat than currently is of the Orange County Southern impacts to the flycatcher; (2) the provided under the Orange County Subregion HCP, which incorporates conservation objectives for the appropriate protections and Southern Subregion HCP. flycatcher, as summarized above, will be management (described above) for the Based on the above discussion, we met; (3) the proposed action is not likely flycatcher, its habitat, and the physical to jeopardize the continued existence of believe section 7 consultations for or biological features essential to the critical habitat designation conducted the species; (4) the Orange County conservation of this species. Those Southern Subregion HCP provides a under the standards required by the protections are consistent with statutory comprehensive, habitat-based approach Ninth Circuit Court in the Gifford mandates under section 7 of the Act to to the protection of covered species and Pinchot Task Force v. U.S. Fish and avoid destruction or adverse their habitats, including the flycatcher, Wildlife Service decision would provide modification of critical habitat. by focusing on lands and aquatic little conservation benefit and would be Furthermore, this plan goes beyond that resources essential for the long-term largely redundant with those benefits requirement by including active conservation of the covered species and attributable to listing as well as those management and protection of essential appropriate management of those lands already provided by the Orange County habitat areas. By excluding the (Southern Orange County Subregion Southern Subregion HCP. Therefore, we approximately 4.7 km (2.9 mi) of HCP 2003, p. 64; Service 2007, pp. 123– determine the regulatory benefits of Can˜ ada Gobernadora Creek within the 124). designating the stream segment of boundaries of the Orange County Where an existing HCP provides Can˜ ada Gobernadora Creek as flycatcher Southern Subregion HCP from critical protection for a species and its essential critical habitat, such as protection habitat designation, we are eliminating habitat within the plan area, the benefits afforded through the section 7(a)(2) a redundant layer of regulatory review of preserving existing partnerships by consultation process, are minimal. We for projects covered by the Orange excluding the covered lands from also conclude that the educational and County Southern Subregion HCP and critical habitat are most significant. ancillary benefits of designating encouraging new voluntary partnerships Under these circumstances, excluding essential habitat covered by the Orange with other landowners and jurisdictions lands owned by or under the County Southern Subregion HCP would to protect the flycatcher and other listed jurisdiction of the permittees of an HCP be minor because the location of species. As discussed above, the promotes positive working relationships essential habitat for this species within prospect of potentially avoiding a future and eliminates impacts to existing and Orange County and the importance of designation of critical habitat provides a future partnerships while encouraging conserving such habitat is well known meaningful incentive to plan development of additional HCPs for through development and proponents to extend voluntary other species. implementation of the Subregional plan protections to endangered and Large-scale HCPs, such as the Orange and the independent regulatory threatened species and their habitats County Southern Subregion HCP, take protection already provided under under a conservation plan. Achieving many years to develop, and foster an CEQA and the Orange County Southern comprehensive landscape-level ecosystem-based approach to habitat Subregion HCP. protection for listed species, such as the conservation planning by addressing

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conservation issues through a management of the flycatcher and its the effects of expected habitat loss and coordinated approach. If local habitat, and help achieve recovery of associated incidental take of 77 jurisdictions were to require landowners this species through habitat federally listed and sensitive species, to individually obtain ITPs under enhancement and management, including the flycatcher. Conservation section 10 of the Act prior to the functional connections to adjoining of the flycatcher is addressed in the issuance of a building permit, the local habitat, and species monitoring efforts. subregional plan and in the Carlsbad jurisdiction would incur no costs Additional HCPs or other species- HMP. A section 10(a)(1)(B) permit for associated with the landowner’s need habitat plans potentially fostered by this Carlsbad HMP was issued on November for an ITP. However, this approach exclusion would also help to recover 9, 2004, for a period of 50 years (Service would result in uncoordinated, patchy this and other federally listed species. 2004a, p. 19). conservation that would be less likely to Therefore, in consideration of the When fully implemented, the achieve listed species recovery, and relevant impact to current and future Carlsbad HMP will conserve almost certainly would result in less partnerships, as summarized in the approximately 9,943 ha (24,570 ac) of protection for listed plant species, Benefits of Exclusion—Orange County land within the City of Carlsbad and which do not require an ITP. We, Southern Subregion HCP section above, proposes to establish approximately therefore, want to continue to foster we determine the significant benefits of 2,746 ha (6,786 ac) of habitat preserve partnerships with local jurisdictions to exclusion outweigh the minor benefits to mitigate the impacts of public and encourage the development of regional of critical habitat designation. private development (Service 2004a, p. HCPs that afford proactive landscape- 19). The majority of the preserve (2,399 Exclusion Will Not Result in Extinction level conservation for multiple species, ha, 5,928 ac) consists of ‘‘hard-lined’’ of the Species—Orange County including voluntary protections for areas designated for 100 percent Southern Subregion HCP covered plant species. We believe the conservation (Service 2004a, p. 19). Up exclusion from critical habitat We determine that the exclusion of to 223 ha (550 ac) would be conserved designation of covered lands subject to 4.7 km (2.9 mi) of Can˜ ada Gobernadora on lands designated as standards areas, protection and management under such Creek within the boundaries of the which are areas that have established plans will promote these partnerships Orange County Southern Subregion HCP assured levels of conservation through and result in greater protection for listed from the designation of critical habitat applying biological criteria (rather than species, including the flycatcher, than for the flycatcher will not result in delineating the project footprint by a would be achieved through section 7 extinction of the species. The Service ‘‘hard-line’’). Additionally, consultation. continues to review all Federal project approximately 125 ha (308 ac) would be proposals review all Federal project conserved outside of the City of Benefits of Exclusion Outweigh the proposals impacting riparian habitat Carlsbad’s Subarea to help offset Benefits of Inclusion—Orange County occupied by the flycatcher through the impacts that would occur within the Southern Subregion HCP section 7 process, and will ensure that City’s Subarea and outside of the City, We reviewed and evaluated the all development carried out does not but within the San Diego MHCP benefits of inclusion and exclusion of jeopardize the continued existence of planning area (Service 2004a, p. 19). approximately 4.7 km (2.9 mi) of the flycatcher. Thus, the section 7 Specific conservation objectives in the Can˜ ada Gobernadora Creek from critical process and protection provided by the Carlsbad HMP for the flycatcher include habitat designation for the flycatcher for Orange County Southern Subregion HCP conserving 200 ha (494 ac) of riparian lands owned by or under the provide assurances that this species will habitat and 10 ha (25 ac) of oak jurisdiction of Orange County Southern not go extinct as a result of excluding woodland within the preserve (Service Subregion HCP permittees. The benefits these lands from the critical habitat 2004a, p. 174). Mandatory surveys will of including these lands in the designation. Therefore, based on the be conducted for proposed projects in or designation are small because the above discussion, the Secretary is adjacent to suitable habitat outside of regulatory, educational, and ancillary exercising his discretion to exclude 4.7 preserve areas (Service 2004a, p. 175). benefits that would result from the km (2.9 mi) of stream segment within Flycatcher habitat will be managed to critical habitat are largely redundant the boundaries of Orange County restrict activities that cause degradation, with the regulatory, educational, and Southern Subregion HCP from this final including livestock grazing, human ancillary benefits already afforded critical habitat designation. disturbance, clearing or alteration of through the Orange County Southern riparian vegetation, brown-headed San Diego Multiple Habitat Subregion HCP and under Federal and cowbird parasitism, and insufficient Conservation Program (MHCP)— State laws. In contrast to the minor water levels leading to loss of riparian Carlsbad Habitat Management Plan benefits of inclusion, the benefits of habitat and surface water (Service excluding lands covered by the Orange (HMP) 2004a, pp. 175–176). Area-specific County Southern Subregion HCP from The San Diego MHCP is a management directives shall include critical habitat designation are comprehensive, large-scale, and measures to provide appropriate significant. Exclusion of these lands will multijurisdictional planning program flycatcher habitat, cowbird control, and help preserve the partnerships we encompassing approximately 45,279 ha specific measures to protect against developed with local jurisdictions and (111,908 ac) of land within seven detrimental edge effects, and removal of project proponents through the jurisdictions in northwestern San Diego nonnative plant species (Service 2004a, development and ongoing County, California, including the cities p. 176). Human access to flycatcher- implementation of the Orange County of Carlsbad, Encinitas, Escondido, occupied breeding habitat is restricted Southern Subregion HCP. Designation of Oceanside, San Marcos, Solana Beach, during the breeding season (May 1— critical habitat does not require that and Vista. The San Diego MHCP is a September 15) except for qualified management or recovery actions take subregional plan under the State of researchers or land managers place on the lands included in the California’s NCCP and was developed in performing essential preserve designation. The Orange County cooperation with CDFG. The San Diego management, monitoring, or research Southern Subregion HCP, however, will MHCP is a multi-species conservation functions (Service 2004a, p. 176). provide significant conservation and program that minimizes and mitigates Additionally, any projects that require

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placing equipment or personnel in or were detected within this stream Therefore, the educational benefits of adjacent to sensitive habitats would also segment. As a result of those territory critical habitat designation (such as include restrictions on timing to ensure detections and the criteria we providing information to the City of that any impacts to breeding habitat established, based upon flycatcher Carlsbad and other stakeholders on would occur prior to the initiation of the dispersal, migration, and movement areas important to the long-term breeding season (Service 2004a, p. 176). behaviors, this segment is now conservation of this species) have In our 2004 biological opinion, we considered occupied. largely been realized through evaluated the effects of the Carlsbad Therefore, regardless of critical development and ongoing HMP on the flycatcher and its habitat habitat designation, the segment will be implementation of the Carlsbad HMP, that is found within the plan subject to a section 7 consultation under by proposing these areas as critical boundaries, and determined the HMP the jeopardy standard as well as the take habitat, and through the Service’s public will not adversely affect proposed prohibitions in section 9 of the Act. outreach efforts. critical habitat for the flycatcher Thus, it is difficult to differentiate Critical habitat designation can also (Service 2004a, p. 52). We also meaningfully between measures result in ancillary conservation benefits determined that the plan will not implemented solely to minimize to the flycatcher by triggering additional jeopardize the continued existence of impacts to critical habitat from those review and conservation through other the flycatcher (Service 2004a, p. 59). implemented to minimize impacts to Federal and State laws such as the Clean Furthermore, we acknowledged in the flycatcher. Therefore, in the case of Water Act and CEQA. These laws section 1.8 of the IA for the Carlsbad the flycatcher, we believe any additional analyze the potential for projects to HMP that the plan provides a regulatory benefits of critical habitat significantly affect the environment. comprehensive, long-term approach for designation would be minimal because However, essential habitat within the the conservation and management of the regulatory benefits from designation City of Carlsbad has been identified in species, including the flycatcher, and are essentially indistinguishable from the Carlsbad HMP and is either already their habitat (Service 2004a, p. 2). The the benefits already afforded through protected or targeted for protection 1995 final listing rule for the flycatcher sections 7 and 9 of the Act. under the plans and thus we conclude identified the most significant threats to Another possible benefit of including the potential regulatory benefits the species are the loss, modification, lands in a critical habitat designation is resulting from designation of critical and fragmentation of its habitat, and that the designation can serve to educate habitat would be negligible. Thus brood parasitism by the brown-headed landowners and the public regarding the review of development proposals cowbird (60 FR 10693; February 27, potential conservation value of an area, affecting essential habitat under CEQA 1995). The Carlsbad HMP helps to and may help focus conservation efforts by the City of Carlsbad already takes address these threats through a regional on areas of high conservation value for into account the importance of this planning effort, and outlines species- certain species. Any information about habitat to the species and the specific objectives and criteria for the the flycatcher and its habitat that protections required for the species and conservation of flycatcher. reaches a wide audience, including its habitat under the Subregion plan. In summary, the Carlsbad HMP parties engaged in conservation However, as discussed above, we incorporates special management activities, is valuable. In the case of the conclude the potential regulatory actions necessary to manage ‘‘covered flycatcher, however, there have already benefits resulting from designation of species’’ and their habitats, including been multiple occasions when the critical habitat would be negligible the flycatcher, in a manner that will public has been educated about the because the outcome of a future section provide for the conservation of the species. The framework of the regional 7 consultation would not result in species (City of Carlsbad 2004, p. 17). San Diego MHCP was developed over a greater conservation for flycatcher 6-year period and both the San Diego essential habitat than currently is Benefits of Inclusion—Carlsbad HMP MHCP and the Carlsbad HMP have been provided under the Carlsbad HMP. As discussed above under in place for almost a decade. Based on the above discussion, we Application of Section 4(b)(2) of the Act, Implementation of the subarea plans is believe section 7 consultations for Federal agencies, in consultation with formally reviewed yearly through critical habitat designation conducted the Service, must ensure that their publicly available annual reports and a under the standards required by the actions are not likely to jeopardize the public meeting, again providing Ninth Circuit Court in the Gifford continued existence of any listed extensive opportunity to educate the Pinchot Task Force v. U.S. Fish and species or result in the destruction or public and landowners about the Wildlife Service decision would provide adverse modification of any designated location of, and efforts to conserve, little conservation benefit and would be critical habitat of such species. The essential flycatcher habitat. As largely redundant with those benefits difference in the outcomes of the discussed above, the permit holders of attributable to listing as well as those jeopardy analysis and the adverse the Carlsbad HMP are aware of the value already provided by the Carlsbad HMP. modification analysis represents the of these lands to the conservation the Therefore, we determine the regulatory regulatory benefit and costs of critical flycatcher, and conservation measures benefits of designating a segment of habitat. are already in place to protect essential Agua Hedionda Creek as flycatcher The stream we evaluated is known to occurrences of the flycatcher and its critical habitat, such as protection be occupied by flycatchers and has habitat. afforded through the section 7(a)(2) undergone section 7 consultation under Furthermore, essential habitat covered consultation process, are minimal. We the jeopardy standard related to the by the Carlsbad HMP was included in also conclude that the educational and Carlsbad HMP. The proposed Agua the proposed designation published in ancillary benefits of designating Hedionda Creek stream segment occurs the Federal Register on August 15, 2011 essential habitat covered by the within, but extends beyond the HCP (76 FR 50542). This publication was Carlsbad HMP would be minor because boundary. Agua Hedionda Creek was announced in a press release and the location of essential habitat for this not within the geographical area known information was posted on the Service’s species within San Diego County and to be occupied at the time of listing. Web site, which ensured that the the importance of conserving such Following listing, flycatcher territories proposal reached a wide audience. habitat is well known through

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development and implementation of the key conservation benefit to the species. therefore, want to continue to foster Subregional Plan and the independent Our ongoing partnerships with the City partnerships with local jurisdictions to regulatory protection already provided of Carlsbad and the landscape-level encourage the development of regional under CEQA and the Carlsbad HMP. multiple species conservation planning HCPs that afford proactive landscape- efforts they promote, are essential to Benefits of Exclusion—Carlsbad HMP level conservation for multiple species, achieve long-term conservation of the including voluntary protections for The benefits of excluding from flycatcher. covered plant species. We believe the designated critical habitat the As noted earlier, some HCP exclusion from critical habitat approximately 5.3 km (3.3 mi) of Agua permittees have expressed the view that designation of covered lands subject to Hedionda Creek within the boundaries critical habitat designation of lands protection and management under such of the Carlsbad HMP are significant and covered by an HCP devalues the plans will promote these partnerships include: (1) Conservation management conservation efforts of plan proponents objectives for the flycatcher and its and the partnerships fostered through and result in greater protection for listed habitat identified in the HCP, described the development and implementation of species, including the flycatcher, than above; (2) continued and strengthened the plans, and would discourage would be achieved through section 7 effective working relationships with all development of additional HCPs and consultation. HCP permittees and stakeholders to other conservation plans in the future. Benefits of Exclusion Outweigh the promote the conservation of the The Service has previously found that: Benefits of Inclusion—Carlsbad HMP flycatcher and its habitat; (3) continued (1) Implementation of the avoidance, meaningful collaboration and minimization, and mitigation measures We reviewed and evaluated the cooperation in working toward recovery identified in the Carlsbad HMP will benefits of inclusion and exclusion of of this species, including conservation reduce impacts to the flycatcher; (2) the approximately 5.3 km (3.3 mi) of Agua benefits that might not otherwise occur; conservation objectives for the Hedionda Creek from critical habitat (4) encouragement of other entities flycatcher, as stated above, will be met; designation for the flycatcher for lands within the range of the flycatcher to (3) the proposed action is not likely to owned by or under the jurisdiction of complete HCPs; and (5) encouragement jeopardize the continued existence of Carlsbad HMP permittees. The benefits of additional HCP and other the species; and (4) the Carlsbad HMP of including these lands in the conservation plan development in the incorporates special management designation are small because the future on other private lands that actions necessary to manage ‘‘covered regulatory, educational, and ancillary include the flycatcher and other species’’ and their habitats, including benefits that would result from the federally listed species. the flycatcher, in a manner that will critical habitat are largely redundant We developed close partnerships with provide for the conservation of the with the regulatory, educational, and the city of Carlsbad and several other species (City of Carlsbad 2004, p. 17; stakeholders through the development Service 2004, pp. 69). ancillary benefits already afforded of the HMP, which incorporates Where an existing HCP provides through the Carlsbad HMP and under appropriate protections and protection for a species and its essential Federal and State laws. In contrast to management (described above) for the habitat within the plan area, the benefits the minor benefits of inclusion, the flycatcher its habitat, and the physical of preserving existing partnerships by benefits of excluding lands covered by or biological features essential to the excluding the covered lands from the Carlsbad HMP from critical habitat conservation of this species. Those critical habitat are most significant. designation are significant. Exclusion of protections are consistent with statutory Under these circumstances, excluding these lands will help preserve the mandates under section 7 of the Act to lands owned by or under the partnerships we developed with local avoid destruction or adverse jurisdiction of the permittees of an HCP jurisdictions and project proponents modification of critical habitat. promotes positive working relationships through the development and ongoing Furthermore, this plan goes beyond that and eliminates impacts to existing and implementation of the Carlsbad HMP. requirement by including active future partnerships while encouraging Designation of critical habitat does not management and protection of essential development of additional HCPs for require that management or recovery habitat areas. By excluding the other species. actions take place on the lands included approximately 5.3 km (3.3 mi) of stream Large-scale HCPs, such as the San in the designation. The Carlsbad HMP, within the boundaries of the Carlsbad Diego MHCP, and subregional plans in however, will provide significant HMP from critical habitat designation, development under its framework, such conservation and management of the we are eliminating a redundant layer of as the Carlsbad HMP, take many years flycatcher and its habitat, and help regulatory review for projects covered to develop and foster an ecosystem- achieve recovery of this species through by the Carlsbad HMP and encouraging based approach to habitat conservation habitat enhancement and management, new voluntary partnerships with other planning by addressing conservation landowners and jurisdictions to protect issues through a coordinated approach. functional connections to adjoining the flycatcher and other listed species. If local jurisdictions were to require habitat, and species monitoring efforts. As discussed above, the prospect of landowners to individually obtain ITPs Additional HCPs or other species- potentially avoiding a future under section 10 of the Act prior to the habitat plans potentially fostered by this designation of critical habitat provides a issuance of a building permit, the local exclusion would also help to recover meaningful incentive to plan jurisdiction would incur no costs this and other federally listed species. proponents to extend voluntary associated with the landowner’s need Therefore, in consideration of the protections to endangered and for an ITP. However, this approach relevant impact to current and future threatened species and their habitats would result in uncoordinated, patchy partnerships, as summarized in the under a conservation plan. Achieving conservation that would be less likely to Benefits of Exclusion—Carlsbad HMP comprehensive landscape-level achieve listed species recovery, and under the MHCP section above, we protection for listed species, such as the almost certainly would result in less determine the significant benefits of flycatcher through their inclusion in protection for listed plant species, exclusion outweigh the minor benefits regional conservation plans, provides a which do not require an ITP. We, of critical habitat designation.

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Exclusion Will Not Result in Extinction (from Long Valley Dam to just north of Owens Valley, when combined they of the Species—Carlsbad HMP Tinemaha Reservoir). include the entire Owens Management In 2005, the LADWP, in partnership We determine that the exclusion of Unit. with the Service, developed a The LORP is a large-scale habitat 5.3 km (3.3 mi) of Agua Hedionda Creek Conservation Strategy for the management project that includes the within the boundaries of the Carlsbad Southwestern Willow Flycatcher Owens River from south of Tinemaha HMP from the designation of critical (Conservation Strategy) (LADWP 2005, Reservoir to the Owens River Delta. The habitat for the flycatcher will not result pp. 1–12) and signed a Memorandum of goal of the LORP is to establish a in extinction of the species. The Service Understanding (MOU) with the Service healthy, functioning Lower Owens River continues to review all Federal project (LADWP and Service 2005, pp. 1–3) to riverine-riparian ecosystem to benefit proposals impacting riparian habitat implement this Conservation Strategy in biodiversity and threatened and occupied by the flycatcher through the the Owens Management Unit. endangered species, with the intent of section 7 process, and will ensure that Consistent with the recommendations in achieving sufficient recovery to warrant all development carried out does not the Recovery Plan (Service 2002), the delisting while providing for the jeopardize the continued existence of LADWP has and continues to continuation of sustainable uses the flycatcher. Thus, the section 7 implement measures in the including recreation, livestock grazing, process and protection provided by the Conservation Strategy with the goal of agriculture, and other activities Carlsbad HMP provide assurances that promoting the establishment of 50 (LADWP and Inyo County 2011, Chap. this species will not go extinct as a flycatcher territories in the Owens 1 p.11, Chap. 2 p. 51). LORP result of excluding these lands from the Management Unit. These measures, implementation includes the release of critical habitat designation. Therefore, which would enhance and maintain water from the Los Angeles Aqueduct to based on the above discussion, the riparian habitat for the flycatcher, the Lower Owens River to enhance Secretary is exercising his discretion to include establishing riparian pastures riparian habitats along the Owens River, exclude 5.3 km (3.3 mi) of stream within and managing grazing utilization rates, flooding approximately 202 ha (500 ac) the boundaries of Carlsbad HMP from prohibiting grazing in riparian pastures in the Blackrock Waterfowl this final critical habitat designation. during the breeding season for the Management Area, and maintenance of La Jolla Band of Luisen˜ o Indians flycatcher and the growing season for several lakes and ponds. The LORP Management Plan riparian plants, monitoring the requires annual monitoring of condition of riparian habitat annually, hydrologic flows of the Owens River, Please see the end of this section for prohibiting overnight camping in water quality, and certain vegetation a discussion about our partnership with riparian habitat in the Owens types such as riparian scrub, riparian tribes from the Santa Ana, San Diego, Management Unit, prohibiting cutting or forest, tamarisk, etc. (LADWP and Inyo and Salton Management Units. gathering of firewood in riparian habitat County 2011, Chap. 6 pp. 2–3). It also Rincon Band of Luisen˜ o Mission along the Owens River, substantially requires adaptive management; if Indians Management Plan reducing vehicle access along and to the monitoring indicates the LORP goals are Owens River and providing not being achieved, management actions Please see the end of this section for walkthrough access only to the river, can change to attain the goals. The a discussion about our partnership with supplying personnel and equipment for LORP also requires the preparation of tribes from the Santa Ana, San Diego, fire suppression activities with the goal annual reports to document the progress and Salton Management Units. of avoiding or minimizing impacts to in achieving the project’s goals. The Pala Band of Luisen˜ o Mission Indians riparian habitat during suppression 2010 annual report provided the Partnership activities, placing a high priority on fire following information on woody suppression in riparian habitat, and riparian habitat in the LORP area. The Please see the end of this section for implementing management actions in first seasonal habitat flow was released a discussion about our partnership with burned riparian areas to facilitate quick in 2010, and was timed to occur with tribes from the Santa Ana, San Diego, recovery of these habitats. Through the seed release of woody riparian and Salton Management Units. Conservation Strategy, the LADWP also vegetation. There was an increase of 252 The Barona and Viejas Groups of prohibits dumping on its lands and ha (626 ac) inundated above base flow Capitan Grande Band of Diegueno cleans up unauthorized dumpsites as conditions that provided areas for Mission Indians Partnership soon as they are identified, treats and recruitment of woody riparian species. monitors exotic weed infestations on During the seasonal habitat flow, about Please see the end of this section for LADWP lands, and has a policy to limit 78.9 percent of floodplains and 29.9 a discussion about our partnership with urban or agricultural development percent of low terraces of the Lower tribes from the Santa Ana, San Diego, within riparian habitat along the Owens Owens River were inundated (LADWP and Salton Management Units. River. The LADWP has consistently and Inyo County 2011, Chap. 3 p. 23). Owens Management Unit implemented and continues to Recruitment of woody riparian Los Angeles Department of Water and implement the Conservation Strategy to vegetation is occurring slowly along the benefit the flycatcher. Lower Owens River (Chap. 4 p. 19). Power Management Plan Subsequent to the Conservation The development and implementation The LADWP manages about 126,262 Strategy and MOU with the Service, the of the LORP included and continues to ha (312,000 ac) of upland, aquatic, and LADWP has prepared and is include extensive public and riparian habitat in Inyo and Mono implementing two additional land stakeholder involvement. Because a Counties, California. Their land management plans, the Lower Owens Draft Environmental Impact Report management responsibilities include River Plan (LORP) and the Owens (EIR)-Environmental Impact Statement much of the riparian habitat along the Valley Land Management Plan (EIS) was prepared to comply with the Owens River and many of its tributaries. (OVLMP). These management plans CEQA and NEPA, public involvement We proposed a 128.5-km (79.8-mi) incorporated the measures in the included the publication of a Notice of continuous segment of flycatcher Conservation Strategy. Although each Preparation of an EIR and a Notice of critical habitat along the Owens River planning area covers a portion of the Intent for an EIS. A public scoping

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meeting was held. The Draft EIR–EIS (LADWP and Ecosystem Sciences 2010, owned, with little Federal involvement, was distributed for public review and Chap. 1 p. 11). A team of scientists from there are few catalysts for evaluation of comment and two public meetings were the LADWP and others will, in actions under section 7 of the Act and held. In addition, the annual reports are consultation with scientists from the a potential critical habitat designation. distributed for information and California Department of Fish and Game The Service is reviewing a developing comment. Numerous stakeholders have and other agencies and individual HCP from the LADWP and associated been involved in the project’s experts, analyze the data from reference incidental take permit under section 10 development and implementation, and sites between years and baseline of the Act that includes actions along the public has been and continues to be conditions to: (1) Identify problems or the Owens River and the flycatcher as informed about the LORP through conditions which are not meeting goals a covered species. During the permit extensive media coverage. or expectations; (2) determine if authorization process, the Service In 2010, the LADWP incorporated the contingency monitoring is needed; (3) would complete section 7 consultation measures in the Conservation Strategy determine the most appropriate for the issuance of this section 10 HCP into the Owens Valley Land adaptive management action(s); (4) permit, evaluating the impacts to listed Management Plans (OVLMP). The compile this information and present species and designated critical habitat. Owens Valley Land Management Plans the team’s conclusions and However, little if any conservation (OVLMP) provide management recommendations to the LADWP benefit from a critical habitat direction for resources on about 101,172 managers; and (5) oversee the designation would be provided through ha (250,000 ac) of non-urban City of Los implementation of adaptive this process because the LADWP is Angeles-owned lands in Inyo County, management measures (LADWP and already implementing actions in the California, excluding the LORP area. Ecosystem Sciences 2010, Chap. 9 p. 3). Conservation Strategy, which include The OVLMP are overarching resource applicable tasks in the Recovery Plan. If management plans that with the LORP Benefits of Inclusion—Los Angeles additional conservation actions were Plan require monitoring and managing Department of Water and Power Lands identified, they would be incorporated resources from Pleasant Valley As discussed above under in the incidental take permit. They Reservoir to Owens Lake. Application of Section 4(b)(2) of the Act, would not be obtained through the The OVLMP describes the Federal agencies, in consultation with section 7 consultation process. management of key resource areas on the Service, must ensure that their Therefore, we are not aware of any lands managed by the LADWP, such as actions are not likely to jeopardize the Federal agency that has recently or is River-Riparian Management, Grazing continued existence of any listed likely to authorize, fund, or carry out a Management, Recreation Management, species or result in the destruction or discretionary action in the Owens Habitat Conservation Plan (HCP), Fire adverse modification of any designated Management Unit in the foreseeable Management, Commercial Use critical habitat of such species. The future with the exception of the Service. Management, and Monitoring and difference in the outcomes of the The designation of critical habitat will Adaptive Management. Riparian areas, jeopardy analysis and the adverse likely provide minimal conservation irrigated meadows, and sensitive plant modification analysis represents the benefit to the flycatcher because the or animal habitats were a priority in the regulatory benefit and costs of critical Owens River is privately owned and development of the OVLMP (LADWP habitat. therefore, there are few catalysts for and Ecosystem Sciences 2010, Chap. 1 The Owens River is known to be federal actions to occur (which our p. 4). The development of the OVLMP occupied by flycatchers and therefore, if record supports), and because the included public review and public and a Federal action or permitting occurs, flycatcher and its habitat is being stakeholder meetings. The HCP chapter there is a catalyst for evaluation under conserved through the implementation is currently being reviewed prior to its section 7 of the Act. Because the Owens of their Conservation Strategy. release for public comment under River and surrounding land is privately Another benefit of including lands in section 10(a)(1)(B) of the Act. The owned by the City of Los Angeles and a critical habitat designation is the flycatcher, endangered least Bell’s vireo, managed by the LADWP, there may only designation can serve to educate the and candidate yellow-billed cuckoo be limited benefits from the designation landowner and the public regarding the (Coccyzus americanus) are three of flycatcher critical habitat along the potential conservation value of an area, obligate riparian species addressed in Owens River, because no Federal agency and may help focus conservation efforts the HCP. manages land along this section of the to designated areas of high conservation The OVLMP’s goals include the Owens River and few Federal agencies value for those species. The process of sustainable uses and health of the carry out discretionary actions. proposing and finalizing the original Owens Valley ecosystem and the Within the past decade, we are aware and this revised critical habitat rule protection and enhancement of of one Federal agency that funded a provided the Service with the endangered and threatened species’ discretionary action (Environmental opportunity to evaluate and refine the habitat (LADWP and Ecosystem Protection Agency grant) and one that physical and biological features Sciences 2010, p. Chap. 1, 4, 10), which permitted a discretionary action (Corps essential to the conservation of the includes habitat for the flycatcher. section 404 permit under the Clean species within the geographic area These goals are based on the premise Water Act). Under section 404 of the occupied by it at the time of listing and that sustainable land and water use Clean Water Act, the Corps authorizes evaluate whether there are other areas management will protect existing the deposition of dredged or fill material essential for the conservation of the resources and lead to more desirable into waters of the United States through species. The designation process ecological conditions for upland and issuance of a permit. Although there included peer review and public riverine-riparian systems on LADWP- was a Federal nexus for both of these comment on the identified physical and managed lands in Inyo County (LADWP actions, the section 7 consultation biological features and geographic areas. and Ecosystem Sciences 2010, Chap 1 p. process resulted in a determination that This process is valuable to landowners 7). The OVLMP also requires monitoring their implementation would not affect and managers in developing and adaptive management to ensure that species listed under the Act. Therefore, conservation management plans for the goals of the plans are achieved because these lands are privately identified areas, other occupied habitat,

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and suitable habitat that may not have benefits that might not otherwise occur; conservation than we would achieve by been included in the Service’s (4) encouragement of other local multiple site-by-site, project-by-project determination of essential habitat. agencies, organizations, and private section 7 consultations involving The educational benefits of landowners to complete conservation consideration of critical habitat. designating lands managed by the plans that benefit the flycatcher and There is limited Federal involvement LADWP are small because, as discussed other federally listed species; (5) in the Owens Management Unit. In the above, the LADWP is aware of the value encouragement of additional past, the EPA provided grants that were of its lands to flycatcher conservation conservation plan development in the applied to implementing environmental has worked with the Service, California future on other private lands that compliance; constructing the pump Department of Fish and Game, other include the flycatcher and other station, water control and measuring agencies and organizations, and the federally listed species, and (6) relieving facilities, and fences; and modifying the public, and currently implements landowners from any additional river intake structure for LORP management measures to conserve this regulatory burden that might be implementation. The Corps issued a species and its habitat. Further, much of imposed by critical habitat designation. permit under the Clean Water Act to the LADWP lands were included in both LADWP’s implementation of their construct and modify some of these the original October 12, 2004, proposed Conservation Strategy, LORP, and facilities and to conduct maintenance designation (69 FR 60706) and the OVLMP, are consistent with the activities in wetland areas for LORP August 15, 2011, revised proposed recovery objectives for the flycatcher. implementation (EPA and LADWP designation (76 FR 50542), which The LORP and OVLMP took years to 2004, entire). Although there was a reached a wide audience. In addition, develop in cooperation with several Federal nexus, the section 7 there have been and continue to be local and State agencies, organizations, consultation process for these proposed processes that involve and educate and the public. Additionally, these actions resulted in a determination that stakeholders and the public in the plans provide conservation benefits for their implementation would not affect development and implementation of the other listed species and unlisted species listed under the Act including LORP and OVLMP, which have a goal sensitive species. the flycatcher. Since the of benefiting the flycatcher and its Imposing an additional regulatory implementation of these activities for habitat. The educational benefits that review by designating critical habitat the LORP, we are not aware of any other might follow critical habitat designation may undermine many of these discretionary actions with a Federal (such as providing information to conservation efforts and may undermine nexus in the Owens Management Unit. LADWP managers on areas important to the conservation efforts and Therefore, we anticipate there will also the long-term conservation of the partnerships with State and local likely be limited future section 7 flycatcher) were largely provided by the agencies, organizations, and private consultations under the Act. The Conservation Strategy, the original landowners that would otherwise exception is the LADWP’s request for an designation process in 2004–2005 and benefit the flycatcher in this and other incidental take permit from the Service publication of the revised critical Management Units and benefit other under section 10(a)(1)(B) of the Act from habitat in 2011 (76 FR 50542). species. the development of a HCP. As part of Because of the continued commitment Designation of critical habitat on the permit evaluation process, the by the LADWP to manage their lands in lands managed by the LADWP in the Service must conduct an internal a manner that promotes flycatcher Owens Management Unit could also be section 7 consultation. Therefore, we do conservation, and because monitoring viewed as a disincentive to those not expect the consultation process and adaptive management are entities currently developing or under section 7 of the Act to occur in conducted to ensure the goals of the considering developing similar plans. this management unit in the future Conservation Strategy, LORP, and One of the incentives for undertaking except with the Service under section OVLMP are being met, we believe the conservation is greater ease of 10(a)(1)(B) of the Act. We believe the designation of lands managed by the permitting where listed species are conservation benefits for the flycatcher LADWP in the Owens Management Unit affected. Excluding LADWP lands in the that would occur as a result of as critical habitat would provide few if Owens Management Unit will also designating 128.5 km (79.8 mi) along the any additional regulatory and preserve a partnership between the Owens River as critical habitat is conservation benefits to the species. Service and the LADWP, which may minimal compared to the overall encourage other conservation Benefits of Exclusion—Los Angeles conservation benefits for the species partnerships between our two entities in that are and will be realized through the Department of Water and Power Lands the future. continued implementation of the The benefits of excluding about 128.5 Conservation Strategy, LORP, and Benefits of Exclusion Outweigh the km (79.8 mi) of LADWP lands from OVLMP. critical habitat designation are Benefits of Inclusion—Los Angeles Furthermore, the educational benefits considerable. They include: (1) A strong Department of Water and Power Lands of critical habitat designation, including likelihood for the continued As discussed in the Benefits of informing the LADWP and the public of implementation of objectives identified Inclusion—Los Angeles Department of areas important for the long-term in the SWWF Conservation Strategy, Water and Power Lands section above, conservation of the species, have been Owens Valley Management Plan, and we believe the regulatory benefits of and continue to be accomplished Lower Owens River Management Plan; designating critical habitat along the through notices of public comment (2) continued and strengthened working Owens River would be minimized periods associated with the original relationship with the LADWP and because of the implementation of flycatcher critical habitat rule (69 FR stakeholders to promote the LADWP’s Conservation Strategy, LORP, 60706), the revised proposed rule (76 FR conservation of the flycatcher and its and OVLMP. These plans address 50542), and the extensive public habitat; (3) continued meaningful conservation issues from a coordinated, involvement process associated with the collaboration and cooperation in integrated perspective rather than a development and implementation of the working toward recovering the piecemeal, project-by-project approach LORP and OVLMP. For these reasons, flycatcher, including conservation and will achieve more flycatcher we believe that designating critical

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habitat has little benefit in areas covered Kern Management Unit Ranch. The Sprague Ranch contains by the Conservation Strategy, LORP, and Sprague Ranch Management Plan existing riparian forest that can support OVLMP. and maintain nesting territories and Section 4(b)(2) of the Act requires us The exclusion of the LADWP lands migrating and dispersing flycatchers. to consider other relevant impacts, in Other portions of the Ranch require from flycatcher critical habitat will help addition to economic impacts, of management in order to become nesting preserve the partnerships that we designating critical habitat. The Sprague flycatcher habitat. Activities such as developed with the LADWP. Much of Ranch, included in the Kern the historic and current range and Management Unit, warrants exclusion cowbird trapping, exotic vegetation habitat of the flycatcher occurs on non- from the final designation of critical control, and native tree plantings are federal lands. Our goal of recovering the habitat under section 4(b)(2) of the Act other management activities expected to flycatcher cannot occur without the because we have determined that the occur. The Ranch is currently being help of numerous non-federal benefits of excluding Sprague Ranch managed in accordance with the terms landowners. Therefore, these from flycatcher critical habitat and conditions of the biological partnerships with non-federal designation will outweigh the benefits opinions (cited above) specifically for landowners are critical for flycatcher of including it in the final designation the benefit of the flycatcher and a conservation. In the Owens based on the long-term protections management plan prepared Management Unit, the major landowner afforded for flycatcher habitat. The cooperatively by the agencies and Audubon. is the LADWP. Recovering the following represents our rationale for excluding the Sprague Ranch from the flycatcher in this unit cannot occur The Sprague Ranch is managed final designated critical habitat for the without their help and cooperation. pursuant to a conservation plan dated flycatcher in the Kern Management This partnership may also help January 25, 2005. This plan was Unit. prepared in partnership with the encourage new partnerships with other The Sprague Ranch is an Service, National Fish and Wildlife landowners and jurisdictions. approximately 1,772-ha (4,380-ac) Foundation (NFWF), CDFG, WCB, the We reviewed and evaluated the parcel which was purchased in a public- Packard Foundation and Audubon to exclusion of 128.5 km (79.8 mi) of the private partnership by Audubon, CDFG, provide consistent management of lands Owens River from final revised critical and the Corps in 2005. Approximately acquired in the Kern Management Unit habitat designation for the flycatcher, 672 ha (1,662 ac) of the Sprague Ranch in compliance with the biological and based on the above considerations are owned in fee by Audubon and opinions issued by the Service. and consistent with the direction approximately 1,100 ac (2,718 ac) Management actions required for the provided in section 4(b)(2) of the Act, owned in fee by CDFG. The proposed Sprague Ranch include: Demographic we have determined that the benefits of critical habitat designation included approximately 4.0 km (2.5 mi) or 313 ha surveys, cowbird trapping, nonnative excluding the Owens River within the (774 ac) of the Sprague Ranch. The vegetation removal, livestock exclusion, Owens Management Unit outweigh the Corps funding used to purchase and hydrologic improvement, planting of benefits of including them. As discussed manage Sprague Ranch was as a result native vegetation, noxious weed control above, LADWP’s Conservation Strategy, of biological opinions for the long-term activities, flood irrigating low-lying LORP, and OVLMP will provide for the operation of Lake Isabella Dam and areas, upgrading of fencing, upgrading enhancement and management of Reservoir (Service 1996, 2000, 2005) irrigation systems, monitoring, and habitat for and features essential to specifically to provide habitat for and reporting. These measures will assist in flycatcher conservation. conservation of the flycatcher. The improvement, management, and Exclusion Will Not Result in Extinction vegetation on the Sprague Ranch is conservation of flycatcher habitat. of the Species—Los Angeles Department willow (Salix sp.) and Fremont Habitat assessments have been cottonwood, open water, wet meadows, of Water and Power Lands, Owens conducted on the property which and grasslands. During the periods of River, California concluded that approximately 168 ha time flycatcher habitat is not available (414 ac) of land are currently available We do not believe that this exclusion as result of periodic inundation from as potential breeding habitat, and would result in the extinction of the Isabella Dam and Reservoir operations, another approximately 227 ha (561 ac) species because the implementation of Sprague Ranch is expected to provide were identified as potentially restorable the Conservation Strategy, LORP, and habitat for the flycatcher. The Corps to support a mosaic of habitat that could funding was used to generate OVLMP conserve the flycatcher and its be used by flycatchers during post- partnership challenge funding from the habitat along the Owens River through breeding dispersal and migration. By State of California Wildlife Conservation the management, monitoring, and using the available water supply and Board (WCB) and resulted in the adaptive management practices acquisition of the larger ranch property, distribution system, managing grazing described above. As a result of ongoing which provides additional benefits to practices, removing invasive non-native management and conservation of the the flycatcher. plant species, and planting riparian flycatcher and its habitat on LADWP The Sprague Ranch is located vegetation, the Sprague Ranch has the lands in Inyo and Mono Counties immediately north and adjacent to the potential for improvement of through development and Kern River Preserve (KRP), which is approximately 395 ha (975 ac) into a implementation of the Conservation owned and operated by Audubon, and mosaic of habitat similar to the Kern Strategy, LORP, and OVLMP, the shares a common border with the KRP River Preserve (KRP) and the South Fork Secretary has determined to use his of over 4.8 km (3 mi). Together these co- Wildlife Area (SFWA). In addition, the discretion to exclude the 128.5 km (79.8 managed lands provide opportunities water supply and distribution system of mi) of the Owens River managed by the for flycatcher breeding, feeding, and the Sprague Ranch has a beneficial LADWP in the Owens Management Unit sheltering. The flycatcher occurs effect on the hydrology that supports the from critical habitat under section throughout the Kern Management Unit, riparian habitats within the KRP and the 4(b)(2) of the Act. which includes portions of the Sprague SFWA.

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Benefits of Inclusion—Sprague Ranch tribes, and the public regarding the of the flycatcher in the Kern As discussed above under potential conservation value of an area, Management Unit. Therefore, we believe Application of Section 4(b)(2) of the Act, and may help focus conservation efforts that flycatcher habitat located within Federal agencies, in consultation with on areas of high conservation value for properties covered by management the Service, must ensure that their certain species. Any information about plans or conservation strategies that actions are not likely to jeopardize the the flycatcher that reaches a wide protect or enhance its habitat will continued existence of any listed audience, including parties engaged in benefit substantially from voluntary species or result in the destruction or conservation activities, is valuable. The landowner management actions. Because the conservation benefits of adverse modification of any designated designation of critical habitat may also critical habitat are primarily regulatory critical habitat of such species. The strengthen or reinforce some Federal or prohibitive in nature, the Service difference in the outcomes of the laws such as the Clean Water Act and contends that where consistent with the jeopardy analysis and the adverse CEQA. These laws analyze the potential for projects to significantly affect the discretion provided by the Act, it is modification analysis represents the environment. Critical habitat may signal necessary to implement policies that regulatory benefit and costs of critical the presence of sensitive habitat that provide positive incentives to private habitat. landowners to voluntarily conserve The Kern River is known to be could otherwise be missed in the review natural resources and that remove or occupied by flycatchers and therefore, if process for these other environmental reduce disincentives to conservation a Federal action or permitting occurs, laws. We believe that there would be little (Wilcove et al. 1996, pp. 1–15; Bean there is a catalyst for evaluation under educational and informational benefit 2002, pp. 1–7). Thus, we believe it is section 7 of the Act. Through section 7 gained from including this portion of essential for the recovery of the consultation, some minimal benefit the Kern River within the designation flycatcher to build on continued could occur from a critical habitat because the Sprague Ranch was conservation activities such as these designation at the Sprague Ranch. The purchased specifically for flycatcher with proven partners, and to provide Sprague Ranch may have additional habitat, and therefore it is well known positive incentives for other private conservation value above sustaining as an important area for flycatcher landowners who might be considering existing populations because it is being management and recovery. Also, implementing voluntary conservation managed to not only maintain existing managing agencies such as the Corps, activities but have concerns about habitat, but also to improve, protect, and CDFG, and Audubon are implementing incurring incidental regulatory or possibly expand upon the amount of a long-term management plan that economic impacts. nesting habitat that would provide for addresses flycatcher habitat, therefore The Benefits of Exclusion Outweigh the growth of existing populations. the educational benefits or additional Benefits of Inclusion—Sprague Ranch Expansion of existing populations in support for implementing other these areas would be an element of environment regulations from a critical Based on the above considerations we recovering the flycatcher. However, habitat designation are not expected to have determined that the benefits of because this piece of land was be realized in this area. excluding the Sprague Ranch from purchased and is being managed critical habitat in the Kern Management specifically for flycatcher habitat, Benefits of Exclusion—Sprague Ranch Unit outweigh the benefits of including federal actions are unlikely to occur to We believe the conservation benefits it as critical habitat for the flycatcher. which would prevent these goals from that would be realized by foregoing The Sprague Ranch was purchased occurring. The implementation of future designation of critical habitat for the specifically to manage habitats for the management actions to improve flycatcher on the Sprague Ranch flycatcher and is jointly managed by the flycatcher habitat on Sprague Ranch are include: (1) Continuance and Corps, CDFG, and Audubon in unlikely to require section 7 strengthening of our effective working accordance with the terms and consultation between the Corps (the relationship with the Corps, CDFG, and conditions of the biological opinions likely federal action agency) and the Audubon to promote flycatcher that have resulted in a positive working Service, because all habitat conservation and its habitat as opposed partnership. The strategy of the improvement and management actions to reactive redundant regulation; (2) managing partnership is to implement are not likely to result in adverse effects allowance for continued meaningful management and habitat improvement to the flycatcher or its habitat collaboration and cooperation in measures to achieve flycatcher (Tolleffson, R. 2012, pers. comm.). As a working toward species recovery; and conservation goals. There are little result, any rare Federal action that may (3) encouragement of additional additional educational or regulatory result in formal consultation will likely conservation for the flycatcher and other benefits of including these lands as result in only discretionary conservation federally listed and sensitive species. critical habitat. The Kern River is well recommendations (i.e., adverse The flycatcher occurs on both public known by the public and managing modification threshold is not likely to and private lands throughout the Kern agencies for its value and importance to be reached). Therefore, we believe there Management Unit, but the Sprague the flycatcher. Likewise, there will be is an extremely low probability of Ranch is somewhat unique in that it is little additional Federal regulatory mandatory elements (i.e., reasonable a partnership between the Corps, CDFG, benefit to the species because (a) there and prudent alternatives) arising from Audubon, and the Service. The is a low likelihood that the Sprague formal section 7 consultations that management of Sprague Ranch is Ranch will be negatively affected to any include consideration of designated conducted in accordance with the terms significant degree by Federal activities flycatcher critical habitat, and as a and conditions of a biological opinion, that were not consulted on in the result, the benefits of inclusion are which require actions for the existing biological opinions pursuant to minimized. conservation of flycatchers. section 7 consultation requirements, Another important benefit of Proactive conservation efforts and and (b) the Sprague Ranch is being including lands in a critical habitat partnerships with private or non- managed in accordance with the terms designation is that the designation can Federal entities are necessary to prevent and conditions of the biological serve to educate landowners, agencies, the extinction and promote the recovery opinions and we believe that based on

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ongoing management activities there process provide assurance that the recorded in 1996, between the would be no additional requirements species will not go extinct. In addition, landowner and the NRCS under pursuant to a consultation that the flycatcher is protected from take authority of the Wetland Reserve addresses critical habitat. under section 9 of the Act. The Program. The purpose of the easement We believe the conservation measures exclusion leaves these protections is to ‘‘* * * restore, protect, manage, for the flycatcher that are occurring or unchanged from those that would exist maintain, and enhance the functional will be used in the future on the if the excluded areas were designated as values of wetlands and other lands, and Sprague Ranch (i.e., demographic critical habitat. for the conservation of natural values surveys, cowbird trapping, nonnative Another reason that exclusion of these including fish and wildlife habitat, vegetation removal, livestock exclusion, lands will not result in extinction of the water quality improvement, flood water hydrologic improvement, planting of species is that critical habitat is being retention, groundwater recharge, open native vegetation, monitoring, and designated for the flycatcher in other space, aesthetic values, and reporting) provide as many, and likely areas along the Kern River that will be environmental education. It is the intent more, overall benefits than would be accorded the protection from adverse of NRCS to give the Landowner the achieved through implementing section modification by Federal actions using opportunity to participate in restoration 7 consultations on a project-by-project the conservation standard based on the and management activities in the basis under a critical habitat Ninth Circuit decision in Gifford easement area.’’ designation. This is because Pinchot. Additionally, the flycatcher The second conservation easement of management that is occurring or that is occurs on other adjacent lands protected approximately 57 ha (140 ac) was planning to occur will be the same and managed either explicitly for the recorded in 2007, between the activities that would be implemented in subspecies, or indirectly through more landowner and CRT as a result of order to maintain or improve flycatcher general objectives to protect natural biological opinions for the long-term habitat. habitat values. This provides protection operation of Lake Isabella Dam and In conclusion, we find that the from extinction while conservation Reservoir (Service 1996, 2000, 2005) exclusion of critical habitat on the measures are being implemented. specifically to provide habitat and Sprague Ranch would most likely have conservation for the flycatcher. The Hafenfeld Ranch Management Plan a net positive conservation effect on the purposes of the easement includes: (1) recovery and conservation of the Hafenfeld Ranch is approximately 100 Protection of the riparian area flycatcher when compared to the ha (247 ac) in size and lies on and historically used by breeding positive conservation effects of a critical adjacent to the South Fork Kern River. flycatchers; (2) continuation of flows habitat designation. As described above, Within the larger ranch are two into the riparian area; and (3) protection the overall benefits to the flycatcher of perpetual conservation easements that of riparian habitat. An endowment to a critical habitat designation for this were placed for the purposes of riparian implement these purposes was granted property is relatively small. In contrast, and wetland vegetation protection and by the Corps to the National Fish and we believe that this exclusion will flycatcher conservation. The landowner Wildlife Foundation to be utilized by enhance our existing partnership with granted these easements willingly and CRT. the Corps, CDFG, and Audubon, and it in partnership with Department of The Hafenfeld conservation easement, will set a positive example and could Agriculture-Natural Resource recorded in favor of CRT under provide positive incentives to other Conservation Service (NRCS), the authorities of the biological opinion non-Federal landowners who may be Service, Corps, and California issued to the Corps, is managed considering implementing voluntary Rangeland Trust (CRT). Approximately pursuant to a conservation plan dated conservation activities on their lands. 0.3 km (0.2 mi) or about 49 ha (122 ac) January 25, 2005. This plan was We conclude there is a higher likelihood of the Hafenfeld Ranch was proposed prepared in partnership with the of beneficial conservation activities for designation of flycatcher critical Service, NFWF, CDFG, WCB, the occurring in these and other areas for habitat. Packard Foundation, and Audubon to the flycatcher without designated The Hafenfeld Ranch is part of a provide consistent management of lands critical habitat than there would be with continuous corridor of flycatcher habitat acquired in the Kern Management Unit. designated critical habitat on the along the south fork of the Kern River Management activities that will protect, Sprague Ranch. that connects the east and west maintain, and improve flycatcher segments of the KRP. The dominant habitat include: (1) Limiting public Exclusion Will Not Result in Extinction vegetation in the Kern Management Unit access to the site, (2) managing grazing, of the Species—Sprague Ranch is willow (Salix sp.) and cottonwood (3) protection of the site from We believe that exclusion of these (Populus fremontii). Other plant development or encroachment, (4) lands will not result in the extinction of communities of the Kern Management maintenance of the site as permanent the subspecies because the flycatcher Unit include open water, wet meadow, open space that has been left already occupies the Sprague Ranch and and riparian uplands. Portions of the predominantly in its natural vegetative other portions of the Kern River and Hafenfeld Ranch are seasonally flooded, state, and (5) the spreading of flood there is a long-term commitment by forming a mosaic of wetland waters which promotes the moisture proven land management partners to communities throughout the area. The regime and wetland and riparian manage this property specifically for the remainder of the property consists of vegetation determined to be essential for flycatcher. Actions that might adversely wet meadow and riparian upland flycatcher conservation. Other affect the subspecies, while not habitats, consistent with the character of prohibitions of the easements which anticipated to occur within this habitat along the south fork Kern River would benefit flycatcher conservation property, are expected to have a Federal and the Kern Management Unit. include: (1) Haying, mowing or seed nexus, and would thus undergo a Flycatchers have been recorded harvesting; (2) altering the grassland, section 7 consultation with the Service. throughout the south fork Kern River woodland, wildlife habitat, or other The jeopardy standard of section 7 and and the Hafenfeld Ranch. natural features; (3) dumping refuse, routine implementation of habitat The first conservation easement of wastes, sewage, or other debris; (4) preservation through the section 7 approximately 38 ha (93 ac) was harvesting wood products; (5) draining,

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dredging, channeling, filling, leveling, likely result in only discretionary meaningful collaboration and pumping, diking, or impounding water conservation recommendations (i.e., cooperation in working toward species features or altering the existing surface adverse modification threshold is not recovery, including conservation water drainage or flows naturally likely to be reached). Therefore, we benefits that might not otherwise occur; occurring within the easement area; and believe there is an extremely low and (3) encouragement of additional (6) building or placing structures on the probability of mandatory elements (i.e., conservation easements and other easement. Funding for the reasonable and prudent alternatives) conservation and management plan implementation of the conservation arising from formal section 7 development in the future on the plan is assured by an endowment held consultations that include consideration Hafenfeld Ranch and other lands for the by NFWF and through commitments by of designated flycatcher critical habitat, flycatcher and other federally listed and NRCS, CRT, and the Hafenfeld Ranch and as a result, the benefits of inclusion sensitive species. under provisions of the Conservation are minimized. The flycatcher occurs on public and Easement. Another important benefit of private lands throughout the Kern including lands in a critical habitat Management Unit. Proactive voluntary Benefits of Inclusion—Hafenfeld Ranch designation is that the designation can conservation efforts by private or non- As discussed above under serve to educate landowners, agencies, Federal entities are necessary to prevent Application of Section 4(b)(2) of the Act, tribes, and the public regarding the the extinction and promote the recovery Federal agencies, in consultation with potential conservation value of an area, of the flycatcher in the Kern the Service, must ensure that their and may help focus conservation efforts Management Unit. actions are not likely to jeopardize the on areas of high conservation value for Proactive conservation efforts and continued existence of any listed certain species. Any information about partnerships with private or non- species or result in the destruction or the flycatcher that reaches a wide Federal entities are necessary to prevent adverse modification of any designated audience, including parties engaged in the extinction and promote the recovery critical habitat of such species. The conservation activities, is valuable. The of the flycatcher in the Kern difference in the outcomes of the designation of critical habitat may also Management Unit. Therefore, we believe jeopardy analysis and the adverse strengthen or reinforce some Federal that flycatcher habitat located within modification analysis represents the laws such as the Clean Water Act and private properties, like the Hafenfeld regulatory benefit and costs of critical CEQA. These laws analyze the potential Ranch, covered by management plans or habitat. for projects to significantly affect the conservation strategies that protect or The Kern River is known to be environment. Critical habitat may signal enhance its habitat will benefit occupied by flycatchers and therefore, if the presence of sensitive habitat that substantially from voluntary landowner a Federal action or permitting occurs, could otherwise be missed in the review management actions. there is a catalyst for evaluation under process for these other environmental Because the conservation benefits of section 7 of the Act. Through section 7 laws. critical habitat are primarily regulatory consultation, some minimal benefit We believe that there would be little or prohibitive in nature, the Service could occur from a flycatcher critical educational and informational benefit believes that where consistent with the habitat designation at the Hafenfeld gained from including this portion of discretion provided by the Act, it is Ranch. The Hafenfeld Ranch may have the Kern River within the designation necessary to implement policies that additional conservation value above because the Hafenfeld Ranch provide positive incentives to private sustaining existing flycatcher established conservation easements that landowners to voluntarily conserve populations because it is being managed addressed the flycatcher and its habitat, natural resources and that remove or to not only maintain existing habitat, and therefore it is well known as an reduce disincentives to conservation but also to improve, protect, and important area for flycatcher (Wilcove et al. 1996, 1–15; Bean 2002, possibly expand upon the amount of management and recovery. Also, 1–7). Thus, we believe it is essential for nesting habitat that would provide for managing agencies such as the Corps, the recovery of the flycatcher to build growth of existing populations. NRCS, Service, CRT, and CDFG were on continued conservation activities Expansion of existing populations in involved with establishing these such as these with proven partners, like these areas would be an element of easements and development of a long- the Hafenfeld Ranch, and to provide recovering the flycatcher. However, term management plan that addresses positive incentives for other private because these lands are privately owned flycatcher habitat; therefore the landowners who might be considering and not under federal management, the educational benefits or additional implementing voluntary conservation occurrence of federal actions that would support for implementing other activities but have concerns about generate evaluation under section 7 and environment regulations from a critical incurring incidental regulatory or a critical habitat designation are habitat designation are not expected to economic impacts. expected to be limited. Additionally, the be realized in this area. established conservation easements The Benefits of Exclusion Outweigh the goals (‘‘* * * restore, protect, manage Benefits of Exclusion—Hafenfeld Ranch Benefits of Inclusion—Hafenfeld Ranch * * * the functional values * * * for We believe conservation benefits Based on the above considerations, the conservation of * * * fish and would be realized by foregoing we have determined that the benefits of wildlife habitat * * *’’) are intended to designation of critical habitat for the excluding the Hafenfeld Parcel from protect riparian vegetation and the flycatcher at the Hafenfeld Ranch critical habitat in the Kern Management flycatcher. As result, it is not likely that include: (1) Continuance and Unit outweigh the benefits of including federal actions or the easement holder strengthening of our effective working it as critical habitat for the flycatcher. would allow actions that would result relationship with the Hafenfeld Ranch The Hafenfeld Parcel is currently in depreciable diminishment or a long- and the Corps, CRT, and CDFG to operating under a conservation plan to term reduction of the capability of the promote voluntary, proactive implement conservation measures and habitat to recover existing populations. conservation of the flycatcher and its achieve important conservation goals As a result, any rare Federal action that habitat as opposed to reactive through the conservation measures may result in formal consultation will regulation; (2) allowance for continued described above, as well as land and

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water management efforts such as from a critical habitat designation on the Little Colorado Management Unit willow planting and management of Hafenfeld Ranch are relatively small. In Zuni Pueblo Management Plan surface flows to achieve the optimal contrast, we believe that this exclusion flooding regime for the enhancement of will enhance our existing partnership Please see the end of this section for important riparian and wetland habitat with these landowners, and it will set a a discussion about tribes from the Little for the flycatcher. positive example and provide positive Colorado, San Juan, Verde, Upper Gila, The Service believes the additional incentives to other non-Federal and Upper Rio Grande Management regulatory and educational benefits of landowners who may be considering Units that submitted Management Plans. including these lands as critical habitat implementing voluntary conservation Middle Colorado, Bill Williams, are relatively small. The Service activities on their lands. We conclude Hoover to Parker Dam, and Parker Dam anticipates that the conservation there is a higher likelihood of beneficial to Southerly International Boundary Management Units, Arizona, California, strategies will continue to be conservation activities occurring in and Nevada. implemented in the future, and that the these and other areas for the flycatcher funding for these activities will be without designated critical habitat than Lower Colorado River Multi-Species apportioned in accordance with the there would be with designated critical Conservation Plan provisions of the Conservation Plan. habitat on these properties. The designation of critical habitat can The LCR MSCP (2004, entire) was serve to educate the general public as Exclusion Will Not Result in Extinction developed for areas along the LCR along well as conservation organizations of the Species—Hafenfeld Ranch the borders of Arizona, California, and Nevada from the conservation space of regarding the potential conservation We believe that exclusion of these value of an area, but this goal is already Lake Mead to Mexico (and a small lands will not result in the extinction of portion of the lower Bill Williams River being accomplished through the the subspecies because the flycatcher identification of this area in the in Arizona), in the Counties of La Paz, already occupies the Hafenfeld Ranch Mohave, and Yuma in Arizona; Conservation Plan described above. and other portions of the Kern River and Likewise, there will be little additional Imperial, Riverside, and San Bernardino there is a long-term commitment by Counties in California; and Clark Federal regulatory benefit to the species proven land management partners to because (a) there is a low likelihood that County in Nevada. The LCR MSCP manage this property for the flycatcher. primarily addresses activities associated the Hafenfeld Parcel will be negatively Actions that might adversely affect the affected to any significant degree by with water storage, delivery, diversion, subspecies, while not anticipated to and hydroelectric production (water Federal activities requiring section 7 occur within this property, are expected consultation, and (b) we believe that management), and the conservation of to have a Federal nexus, and would thus species affected by those actions. The based on ongoing management activities undergo a section 7 consultation with there would be no additional Secretary of the Interior (Secretary) the Service. The jeopardy standard of signed the Record of Decision on April requirements pursuant to a consultation section 7 and routine implementation of that addresses critical habitat. 2, 2005. Discussions began on the habitat preservation through the section development of this HCP in 1994, but an Excluding these privately owned 7 process provide assurance that the lands with conservation strategies from important catalyst was a 1997 jeopardy species will not go extinct. In addition, biological opinion for the flycatcher critical habitat may, by way of example, the flycatcher is protected from take provide positive social, legal, and issued to the USBR for LCR operations under section 9 of the Act. The (Service 1997, entire). As a result, economic incentives to other non- exclusion leaves these protections Federal landowners who own lands that flycatcher conservation and unchanged from those that would exist development of flycatcher habitat is a could contribute to listed species if the excluded areas were designated as recovery if voluntary conservation significant part of the LCR MSCP. The critical habitat. measures on these lands are LCR MSCP covers a 50-year period of Another reason that exclusion of the implemented. time from 2005 to 2055. We believe the conservation measures Hafenfeld Ranch will not result in The Federal agencies whose water for the flycatcher on the Hafenfeld extinction of the species is that critical management activities are addressed Ranch that include the activities habitat is being designated for the through the LCR MSCP are the USBR, described above that include land and flycatcher in other areas along the Kern Bureau of Indian Affairs (BIA), National water management actions to enhance River that will be accorded the Park Service (NPS), BLM, Western Area important riparian and wetland habitat protection from adverse modification by Power Administration, and Service. The provide as much, and likely more Federal actions using the conservation non-Federal permittees covered in comprehensive benefits as would be standard based on the Ninth Circuit Arizona are: The Arizona Department of achieved through implementing section decision in Gifford Pinchot. Water Resources; Arizona Electric 7 consultation on a project-by-project Additionally, the flycatcher occurs on Power Cooperative Inc.; Arizona Game basis under a critical habitat other adjacent lands protected and and Fish Department (AGFD); Arizona designation. This is because they land managed either explicitly for the Power Authority; Central Arizona Water managers are already implementing subspecies, or indirectly through more Conservation District; Cibola Valley actions that improve and maintain general objectives to protect natural Irrigation and Drainage District; City of flycatcher habitat. habitat values. This provides protection Bullhead City; City of Lake Havasu City; In conclusion, we find that the from extinction while conservation City of Mesa; City of Somerton; City of exclusion of critical habitat on the measures are being implemented. Yuma; Electrical District No. 3, Pinal Hafenfeld Parcel would most likely have Salton Management Unit County, Arizona; Golden Shores Water a net positive conservation effect on the Conservation District; Mohave County recovery and conservation of the Iipay Nation of Santa Ysabel Partnership Water Authority; Mohave Valley flycatcher when compared to the Please see the end of this section for Irrigation and Drainage District; Mohave positive conservation effects of a critical a discussion about our partnership with Water Conservation District; North Gila habitat designation. As described above, tribes from the Santa Ana, San Diego, Valley Irrigation and Drainage District; the overall benefits to the flycatcher and Salton Management Units. Salt River Project Agricultural

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Improvement and Power District; Town perfected rights, water delivery dam operations and channel of Fredonia; Town of Thatcher; Town of contracts, or other Federal or Secretarial maintenance without the ability to Wickenburg; Unit ‘‘B’’ Irrigation and reservations of water), and generation of change dam operations to re-create the Drainage District; Wellton-Mohawk hydroelectric power. The extent of these physical river conditions needed for Irrigation and Drainage District; Yuma actions and their status as discretionary flycatcher riparian habitat. The County Water Users’ Association; Yuma or non-discretionary was discussed in regulation of the Colorado River alters Irrigation District; and Yuma Mesa the LCR MSCP Biological Assessment the magnitude, frequency, duration, and Irrigation and Drainage District. The (LCR MSCP 2004a, pp. 2–1—2–68). timing of river flow, thereby impacting permittees covered in California are: The Law of the River, discussed the ability to replenish aquifers, elevate The City of Needles, the Coachella above, came into play during the 1997 groundwater, move sediment, and grow Valley Water District, the Colorado section 7 consultation between USBR extensive riparian forests (Poff et al. River Board of California, the Imperial and the Service (Service 1997, entire). 1997, pp. 769–781). The effect of this Irrigation District, the Los Angeles The underlying facts of this 1997 river regulation, combined with stream Department of Water and Power, the section 7 consultation illustrate the kind channelization, has further armored Palo Verde Irrigation District, the San of environmental issues which occur stream banks, incised the river channel, Diego County Water Authority, the along the LCR due to BOR’s lack of and thus disconnected the stream from Southern California Edison Company, discretion to modify its water the floodplain. Under existing the Southern California Public Power management duties. The decline of Lake conditions, dams prevent flood flows Authority, Bard Water District, and The Mead water levels during several years from occurring and existing regulated Metropolitan Water District of Southern of drought created conditions for flows cannot extend beyond the river California. The permittees covered in flycatcher habitat to become established channel onto the floodplain. The Nevada are: The Colorado River in the exposed lakebed. This flycatcher Flycatcher Recovery Team recognized Commission of Nevada, the Nevada habitat, used by nesting flycatchers, was these challenges along the LCR and Department of Wildlife (NDOW), Basic later partially inundated as the lake understood that creating and managing Water Company, and the Southern water levels rose in years with more nesting habitat was a viable recovery Nevada Water Authority. rainfall and/or snowmelt. Some strategy because of the flexibility the The LCR MSCP also addresses the flycatcher nests fell into Lake Mead flycatcher demonstrated in using habitat BIA’s water management activities on when the willows supporting them gave created in manmade altered situations the multiple tribal lands that are part of way due to being inundated by water for (reservoir inflows, agriculture return the LCR MSCP’s planning area long periods. During the 1997 section 7 flows, irrigation ditches). As a result, (Hualapai, Fort Mojave, Chemehuevi, consultation, the Service found that the LCR MSCP partners are using Colorado River, Quechan, and Cocopah USBR’s continued operations on the agricultural fields adjacent to the river Tribes). LCR would jeopardize the continued channel with existing water rights to The Secretary is vested with the existence of the flycatcher. The Service cultivate and manage riparian habitat responsibility to manage the main-stem provided USBR with a reasonable and specifically for the benefit of nesting waters of the LCR pursuant to a body of prudent alternative that called upon and migrating flycatchers. law commonly referred to as the ‘‘Law USBR to release water from Lake Mead of the River’’ (LOR). The LOR includes, to avoid inundating the willows. USBR The flycatcher is a key species in the but is not limited to a variety of Federal then advised the Service that USBR did LCR MSCP where the permittees will and State laws, interstate compacts, an not have legal discretion to release create and maintain 1,639 ha (4,050 ac) international treaty, court decisions, water from Lake Mead due to its legal of flycatcher habitat within the planning Federal contracts, Federal and State requirements to store water for various area, which includes NWRs, tribal regulations, and multi-party agreements other parties. The Service then provided lands, and other Federal and private extending at least as far back as 1899 a different reasonable and prudent lands (from Lake Mead to Mexico). The with the River and Harbors Act of 1899. alternative to USBR, which required intent is to create, within the Lake Mead The most relevant components of the USBR to procure and protect 567 ha to Mexico LCR MSCP planning area, LOR for this discussion are the Colorado (1,400 ac) of alternative habitat, thousands of acres of protected and River Compact of 1922, the Boulder preferably on the LCR, no later than managed riparian habitat that can be Canyon Project Act of 1928, the January 1, 2001. The reasonable and used by territorial, breeding, non- California Seven Party Agreement of prudent alternative also required USBR breeding, foraging, dispersing, and 1931, the 1944 Water Treaty between to provide additional long-term migrating flycatchers and reach the the United States and Mexico, The mitigation measures through (1) conservation goals established in the Upper Colorado River Basin Compact of acquisition of additional flycatcher Recovery Plan within the legal and 1948, the Colorado River Storage Project habitat and (2) continued development physical limitations existing along the Act of 1956, the 1964 Supreme Court of the LCR MSCP. The Secretary of LCR. The development of flycatcher Decree in Arizona v. California, and the Interior’s reliance on this second habitat will primarily occur within the Colorado River Basin Project Act of reasonable and prudent alternative was Management Units (Hoover to Parker 1968. The Secretary serves as upheld by the Ninth Circuit Court of and Parker to Southerly International ‘‘Watermaster’’ related to LCR Appeals in Southwest Center for Border) that are the most significant operations and management of the and Biological Diversity v. U.S. Bureau of portion of the LCR MSCP action area. has vested those discretionary and non- Reclamation, 143 F.3d 515 (9th Cir. Streams in the Middle Colorado discretionary actions with the USBR for 1998). (Colorado River-Lake Mead), Virgin implementation. Principally, these Because of requirements under the (Virgin River), Pahranagat (Muddy actions include river regulation, Law of the River that protect the River), and Bill Williams (Bill Williams improvement of navigation, flood regulation and delivery of Colorado River) Management Units in Arizona, control, providing for storage, delivery River water to the western United Utah, and Nevada, are briefly and accounting of Colorado River water States, the most challenging task for the represented within the LCR planning to entities within the state LCR MSCP partners is to overcome the area. Management and tasks associated apportionments (entities with present environmental impacts from decades of with the development of these habitats

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will result in improving and Since implementation of the LCR Management Plan (1994–2014) (Service maintaining essential migration MSCP in 2005, flycatchers have 1994, pp. 137–156) are to: ‘‘* * * stopover habitat, improving meta- occurred in abundance as migrants restore and maintain the natural population stability of nesting throughout the length of the LCR; diversity * * *’’; ‘‘* * * achieve populations, and reducing the risk of however territories along the LCR threatened and endangered species catastrophic losses due to wildfire. within the Lake Mead to Mexico recovery * * *’’; ‘‘* * * revegetate Overall, these 1,639 ha (4,050 ac) are planning area have been detected only substantial amounts of habitat with anticipated to meet the flycatcher at the Havasu and Bill Williams River native mixes of vegetation leading to conservation goals recommended in the NWRs and within the Lake Mead biological diversity; ‘‘* * * enhance use Recovery Plan. National Recreation Area (MacLeod et of Colorado River water and protect In addition to flycatcher habitat al. 2008, pp. 89–92). A few lone existing water rights holdings * * *’’; creation, provisions are made in the flycatcher territories, with no nesting ‘‘* * * ensure only compatible and LCR MSCP to provide funds to ensure recorded, were detected at various other appropriate activities occur * * * and the maintenance of flycatcher habitat in locations along the LCR below Hoover * * * regulate all activities * * * that suitable nesting conditions through the Dam prior to the LCR MSCP’s are potentially harmful to refuge Habitat Management Fund and to implementation (Service 2002, Fig. 8). resources’’; and to ‘‘* * * effect conduct additional survey, research, As a result of implementing updated improvements to funding and staffing management, monitoring of flycatchers, survey protocols and with additional that will result in long lasting flycatcher habitat, and flycatcher-related information, these lone territories enhancements to habitat and wildlife issues. (primarily south of the Bill Williams resources * * * leading to achievement Since implementing the LCR MSCP in River) have yet to be detected (McLeod of the goals of this plan and the goals 2005, the partners have conducted et al. 2008, pp. 89–92; McLeod and of the NWR System.’’ multiple flycatcher projects to satisfy Koronkiewicz 2009, pp. 54–56; 2010, Service—Bill Williams NWR the MSCP’s goals and objectives. pp. 46–47; McLeod and Pelligrini 2011, Flycatcher surveys and monitoring has pp. 51–52; 2012, pp. 43–44). The Bill Williams NWR consists of been conducted annually throughout In 2011, flycatcher surveys occurred 2,471 ha (6,105 ac) (Service 1994, p. 34) the LCR MSCP planning area (McLeod at 64 sites along 15 study areas and as a tributary of the LCR located et al. 2008, pp. 77–92, 113–122; McLeod throughout the entire LCR planning area below Alamo Dam, includes the largest and Pelligrini 2011, pp. 13–51, 77–91; and its tributaries (USBR 2012, p. 207). flood-regenerated riparian forest on the 2012, pp. 7–43, 71–84). Research has Flycatchers (migrants and territorial LCR. The Bill Williams NWR contains been completed evaluating cowbird flycatchers) were detected at 47 of the approximately 931 ha (2,300 ac) of control and the effects of nest predation 64 sites (USBR 2012, p. 208). From 2009 cottonwood, willow, mesquite, and salt (Ryan and White 2006, entire; Theimer to 2011, along the main-stem of the LCR cedar woodlands and terrace et al. 2010, entire); the flycatcher’s a maximum of two flycatcher territories shrublands. It is described by the insect prey base (Wiesenborn and occurred at Topock Marsh at Havasu Executive Order establishing the area Heydon 2007, entire; Wiesenborn et al. NWR. ‘‘* * * as a refuge and breeding ground 2008, entire; Wiesenborn 2010, entire); Conservation and development of for migratory birds and other wildlife.’’ and the subspecies identity of migrating flycatcher habitat is also a priority for From 1994 to 2007, 1 to 15 flycatcher flycatchers (Paxton et al. 2005, entire). land managers within the MSCP territories (and migrant flycatchers) Additionally, flycatcher habitat planning area. In particular, the Bill were detected on the NWR annually evaluations have been conducted to Williams River, Havasu, Cibola, and (USGS 2008). Habitat goals are to assist in the development of mitigation Imperial NWRs and the Hualapai, protect, maintain, and, if possible, sites (BioWest 2006, entire; Calvert Chemehuevi, Fort Mojave, CRIT, and enhance habitats, particularly those for 2008, entire; USBR 2012, p. 208). In Quechan Tribes are implementing neo-tropical migrants, endangered 2011, an attempt to improve flycatcher conservation strategies to manage species, and other species of concern. nesting habitat at Topock Marsh on the existing riparian resources (see below). Havasu NWR occurred by attempting to Similarly, the land management Service—Havasu NWR improve moist soil conditions and strategies of the BLM (Service 2006, pp. The Havasu NWR consists of 15,551 vegetation quality by pumping water 12–13; 2007, p. 15; 2009, pp. 20–21) and ha (38,427 ac) (Service 1994, p. 33) and onto the ground’s surface underneath NPS (Service 2004b, pp. 47–49) (also some of the NWRs goals have been to vegetation (USBR 2012, p. 208). LCR MSCP partners) have focused on identify specific areas where flycatcher To date, 547 ha (1,352 ac) have been preserving existing riparian habitat. All habitat will be maintained, improved, acquired and managed to develop of these entities face similar challenges protected, and managed, because as riparian habitat through the LCR individually as the LCR MSCP partners keystone woody riparian species, its planning area in parts of Arizona and do collectively; the alteration of habitat is a specific NWR goal. California (USBR 2012, p. 72). Migrant Colorado River flow provides a Havasu NWR riparian habitat flycatchers have been found using these considerable hurdle in improving management and maintenance projects riparian habitats, but nesting territories riparian habitat quality. are underway and will continue in order have yet to be detected. The LCR MSCP to provide a flycatcher conservation partners continue to acquire, develop, U.S. Fish and Wildlife Service National benefit. For example, approximately 40 study, manage, and enhance riparian Wildlife Refuges—Bill Williams River, ha (100 ac) in the Beal Unit and 20 ha mitigation habitat sites to meet the Havasu, Cibola, and Imperial NWRs (50 ac) in the Pintail Unit are being MSCP’s flycatcher goals. Another The Bill Williams, Havasu, Cibola, restored and managed for woody benefit of the LCR MSCP is that other and Imperial NWRs currently operate riparian vegetation. During the 2004 covered and sensitive riparian obligate under a Comprehensive Management fiscal year, a total of 8,765 cottonwoods, bird species have been found nesting in Plan (Service 1994, entire) that has been 4,800 Goodding’s willows, 4,065 Coyote these mitigation sites such as yellow- evaluated under NEPA and section 7 of willow, and 940 mesquites were planted billed cuckoo, yellow warbler, and the Act. Some of the goals included in in the Beal Unit. In the Pintail Unit, Bell’s vireo (USBR 2012, pp. 237–249). the LCR NWRs Comprehensive during the 2004 fiscal year, 1,650

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cottonwoods and 1,175 willows were planted in 2003, the area has shown use The conservation measures proposed in planted. In the 1,619 ha (4,000 ac) by migrant flycatchers and has these plans are similar and include tasks Topock Unit, habitat exists and is being continued to be maintained and such as: Flycatcher surveys; monitoring; managed for nesting flycatchers and monitored (Strickland 2005, pp. 2–3; research; education; implementing laws, wading birds, and the 202 ha (500 ac) Seese 2006, p. 1). policies, and agreements; minimizing Whiskey Slough Unit is also targeted for Protection of existing sites through disturbance; habitat protection; fire flycatcher management. fire management and replacement of management; maintaining and In addition to the specific Havasu poor quality salt cedar to less flammable improving flycatcher nesting habitat; NWR vegetation management, and higher quality native plant species implementing small-scale habitat additional NWR tasks occur in order to is occurring as part of Cibola NWR’s enhancement projects; minimizing improve habitat quality and persistence. management efforts. Reducing the unauthorized recreational impacts; and Specific water management to mimic amount of unsuitable salt cedar and cowbird trapping (if appropriate). the natural hydrology is needed for replacing it with native mesquite, woody vegetation and to maintain cottonwoods, and willows, provides National Park Service—Lake Mead conditions and prey for nesting improved habitat value for flycatchers National Recreation Area flycatchers. Management of feral pigs and other passerines and reduces the The NPS’s Lake Mead National that can harm and destroy vegetation is risk of wildfire. In 2006 and 2007, the Recreation Area’s Land Management needed to protect habitat. Additionally, NWR began to assess, plan, and Plan (Service 2002a, p. 6) and Fire management of exotic woody and weed rehabilitate riparian vegetation that Management Plan (Service 2004b, pp. species such as salt cedar and Johnson burned from the lightening caused 2,145 47–49; 2011, p. 23) include flycatcher grass occurs to reduce risks of fire in ha (5,300 ac) Cibola and Walter fires management goals within the LCR riparian areas. (Seese 2006, p. 14). MSCP planning area. In and around Service—Cibola NWR Service—Imperial NWR Lake Mead, flycatcher habitat is limited to tributary inflow and the Colorado The Cibola NWR consists of The Imperial NWR consists of 10,168 River inflow where the lake rises and approximately 6,745 ha (16,667 ac) ha (25,125 ac) (Service 1994, pp. 34–35) lowers. The NPS’s management (Service 1994, p. 34) and some of their and manages for a variety of habitat strategies, first identified in the 2004 main objectives are the development of types that provide locations for Fire Management Plan, include the wetland, riverine, riparian, moist soil, waterfowl, wading birds, passerines, identification and survey of flycatcher and agricultural habitat in order to and other species. Fifteen Management habitat, breeding site closures, and maintain the natural abundance and Units (totaling about 648 ha, 1,600 ac) avoidance of these suitable and diversity of native species, habitats and are targeted for riparian obligate occupied sites from adverse impacts communities which are found in the passerines obligate. Not all areas of associated with fire management. Due to LCR floodplain (with emphasis on trust these Units are dedicated specifically to the remote nature of flycatcher areas resources, endangered and threatened woody riparian habitat. Flycatcher and the limited watercraft access, species, and other species of concern). habitat management includes recreation and fire risk is anticipated to As a result, flycatcher migratory and maintenance of woody riparian be low (no fires have occurred within nesting habitat, as well as habitat for vegetation, and development and flycatcher habitat since 1976). Also other passerine species is specifically protection of habitat through methods included is the overall strategy of identified as important to maintain, such as planting, salt cedar control, and riparian habitat protection, the seeding preserve, and restore. A single prescribed burns. The Backwater and management to improve habitat flycatcher territory and migrating Riversedge Management Unit has an quality of sites, and control of cowbird flycatchers have been detected on the additional 2,270 ha (5,609 ac) of salt populations. Cibola NWR. cedar, willow, remnant cottonwoods, Some primary Cibola NWR goals are and scattered marshes for flycatchers. Native American Tribes—Hualapai, Fort to maintain existing native riparian One to five flycatcher territories were Mojave, Chemehuevi, Colorado Indian woodland and establish and manage an detected over 3 years on the NWR Tribes, and Quechan average of 20 ha (50 ac) annually between 1996 and 2003 (Sogge and Tribes—Hualapai Tribe through seeding and planting native Durst 2008) as well as migrating mesquite, cottonwood, and willow trees, flycatchers (Macleod et al. 2008, pp. 73– The Hualapai Tribe occurs alongside and associated understory plants. Three 76). the Colorado River on the south side of different NWR Management Units that the channel in the Middle Colorado contain approximately 323 ha (800 ac), Bureau of Land Management—Yuma, Management Unit at the upper most 6 ha (15 ac), and 40 ha (100 ac) of Havasu, and Arizona Strip Resource portion of the Lake Mead conservation habitat are designated for development Districts space within the LCR MSCP planning to native mesquite, cottonwood, and Parts of the Yuma, Havasu, and area. The Tribe completed a Flycatcher willows. Between the fall of 2010 and Arizona Strip BLM Districts occur Management Plan in 2005 (Hualapai spring of 2011, several management within the LCR MSCP planning area Tribe 2004, entire) and developed a activities occurred to improve and from Lake Mead to Mexico (and the 2012 update (Hualapai Tribe 2012, enhance wildlife and riparian habitats lower Bill Williams River). These entire). The Hualapai Tribal Council has within the NWR with over 12,000 trees Districts have consulted with the adopted the implementation of their planted over 20 ha (50 ac) (Rimer 2011, Service under section 7 of the Act on Flycatcher Management Plan. p. 1). the implementation of their resource The Hualapai’s Flycatcher Previous plantings and habitat plans (Service 2006, pp. 12–13; 2007a, Management Plan’s objectives are to maintenance has occurred, which has p. 15; 2009, pp. 20–21). These plans preserve riparian vegetation, conduct resulted in improved flycatcher habitat provide the broad flycatcher habitat improvement activities with conditions. At one 7 ha (17.8 ac) field conservation measures originating in available funds, ensure that existing where about 7,100 one-gallon other guidance documents such as the land uses (which presently include cottonwood and willow trees were Recovery Plan and the LCR MSCP plan. recreational activities) will not disturb

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flycatchers or reduce habitat quality, Colorado River within the Hoover to backwater areas, limitations on grazing, and conduct flycatcher surveys. Parker Management Unit. The and campsite placement. The Hualapai Tribe has been Chemehuevi Tribe completed a The Flycatcher Management Plan implementing their Flycatcher Flycatcher Management Plan in 2005 identifies the continued management of Management Plan, which has the overall (Chemehuevi Indian Tribe 2005, entire). the Ahakhav Tribal Preserve, a 546-ha goal to support conservation of the The Chemehuevi Tribe committed to (1,350-ac) area of riparian vegetation. flycatcher on Hualapai lands. Like other flycatcher conservation actions such as This Preserve was established in 1995 locations along the Middle and LCR, controlling wild fire, improving native and is managed to conserve the CRITs riparian habitat quality is affected by plant presence through habitat biological and cultural resources, river regulation. While riparian habitat improvement and management projects, promote environmental education, and has been preserved within tribal lands, minimizing recreational habitat impacts, provide recreational opportunities for they note that recent drought combined and collaborating with the Service to the tribal community and general with a decline in Lake Mead water level improve flycatcher habitat conditions. public. The Ahakhav Tribal Preserve has reduced overall flycatcher habitat The Flycatcher Management Plan possesses the highest potential for quality. The Tribe has prevented habitat addresses the management of tamarisk eventual colonization by nesting degradation and flycatcher disturbance and native willow, cottonwood, and flycatchers. The Tribe is actively from recreationists and helicopter tour mesquite to maximize native plant converting tamarisk-dominated operators through implementation of presence. Management will be done in vegetation within the Preserve to signs and buffer zones. Surveys for cooperative work effort with the Service combinations of cottonwood, willow, flycatchers occurred annually from 1997 to identify habitat improvement sites and mesquite. through 2008, but no surveys have and provide early control response to Tribes—Quechan (Fort Yuma) Indian occurred since due to lack of funding. wild fires that would result in no net Tribe The Tribe will continue to seek funding loss or permanent changes detrimental The Quechan Tribe occurs within the to continue surveys and habitat to flycatcher or its habitat as specified LCR MSCP planning area along the improvement activities. by the Recovery Plan. Any permanent Colorado River within the Parker to river or lakeshore land use changes, Tribes—Fort Mojave Tribe Southerly International Border such as recreational or other The Fort Mojave Tribe occurs within Management Unit. The Quechan Tribe developments, will take flycatcher the LCR MSCP planning area along the completed a Flycatcher Management habitat into account and will be done in Colorado River in the Hoover to Parker Plan in 2005 (Quechan Tribe 2005, mutual consultation with the Service so Management Unit above Lake Havasu. entire). as to design plans that minimize The Fort Mojave Tribe completed a The Quechan Tribe will manage detrimental impacts to habitat Flycatcher Management Plan in 2005 riparian saltcedar that is intermixed requirements. Their Flycatcher (Fort Mojave Tribe 2005, entire), and with cottonwood, willow, mesquite, and Management Plan identifies continued modified that plan with a 2012 update arrowweed to maximize potential value cooperation between the Tribe and (Fort Mojave Tribe 2012, entire). The for nesting flycatchers. Any permanent Service to ensure continued Fort Mojave Tribal Council authorized land use changes for recreation or other management of or to improve habitat and approved the implementation of the reasons will consider the biological conditions. Continued monitoring of updated Flycatcher Management Plan needs of the flycatcher and support habitat and flycatchers and long-term and the continued management of lands flycatcher conservation needs as long as management of native plants (e.g., that do or can support flycatchers. consistent with tribal cultural and The Fort Mojave Indian Tribe has cottonwood, mesquite, and willow), economic needs. The Tribe will consult committed to continue riparian habitat within funding constraints, will result with the Service to develop and design protection and described portions of in no net habitat loss or permanent plans that minimize impacts to seven different areas of tribal land, habitat modification and will avoid flycatcher habitat. The intent of these totaling about 991 ha (2,448 ac), that detrimental impacts to the flycatcher as measures is to ensure no net loss of have or could have flycatcher habitat. specified in the Recovery Plan. flycatcher habitat. The Tribe identified the intent to Tribes—Colorado River Indian Tribe Benefits of Inclusion—Lower Colorado continue to establish and developing (CRIT) River Multi-Species Conservation Plan riparian habitat improvement sites, to manage for native riparian plant species The CRIT occurs within the LCR As discussed above under in appropriate locations, and to MSCP planning area along the Colorado Application of Section 4(b)(2) of the Act, continue to provide wildfire response to River within the Parker to Southerly Federal agencies, in consultation with protect riparian habitats. International Border Management Unit. the Service, must ensure that their The Tribe commented in their The CRIT completed a 2005 Flycatcher actions are not likely to jeopardize the submitted comments and updated Management Plan (CRIT 2005, entire) continued existence of any listed Flycatcher Management Plan that and produced a draft 2012 update (CRIT species or result in the destruction or implementation of their 2005 2012, entire). adverse modification of any designated Management Plan was effective and The CRIT’s Flycatcher Management critical habitat of such species. The since its completion, no net loss in Plan describes a collection of flycatcher difference in the outcomes of the riparian habitat has occurred. A 321-ha management tasks. CRIT biologists have jeopardy analysis and the adverse (794-ac) section of tribal land, in attended flycatcher survey training and modification analysis represents the cooperation with the USBR, is expect to assess habitat quality, conduct regulatory benefit and costs of critical specifically being managed to support breeding bird surveys and identify and habitat. flycatcher habitat. protect flycatcher migration habitat. The streams being evaluated within Migration habitat will be managed the LCR MSCP planning area are known Tribes—Chemehuevi Tribe through fire restrictions, fire to be occupied by flycatchers and have The Chemehuevi Tribe occurs within suppression, restrictions on the use of undergone section 7 consultation under the LCR MSCP planning area along the gasoline-powered boats in sensitive the jeopardy standard related to the LCR

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MSCP. There may be some minor stream flow has caused habitat be missed in the review process for benefits by the designation of critical degradation and the ‘‘Law of The River’’ these other environmental laws. habitat along the length of the LCR for prevents any change in water We believe that there would be little land management actions because of the management that can improve the educational and information benefit or additional review required by federal riparian forest, land management conservation from reinforcing other actions; most likely those occurring on agencies are unable to impact these river environmental laws and regulations Service NWRs, BLM, and NPS land (the flow conditions, nor are they able to gained from including the LCR MSCP most prominent Federal land managers impact river flow conditions through planning area within the flycatcher within the action area). The flycatcher is non-discretionary mandatory reasonable critical habitat designation, because this well known as a listed species using the and prudent measures or alternatives is a well-known flycatcher management LCR for migration and for nesting. resulting from any possible future and recovery area. Through the Because these Federal agencies manage section 7 consultation. development and implementation of the open space for public use and wildlife, We also believe there would be few LCR MSCP, the development and the types of actions evaluated would additional benefits would be derived completion of the Recovery Plan, the mostly be associated with recreation, from including the five tribes within the 2005 flycatcher critical habitat proposal, habitat management, and public access, LCR MSCP planning area as flycatcher the development of land management and possibly some land resource use. critical habitat, beyond what will be plans, and the creation of flycatcher The benefits of flycatcher critical achieved through the implementation of specific tribal management plans, the their management plans. The principal value of the LCR and riparian habitat for habitat designation on lands managed benefit of any designated critical habitat the flycatcher is well established. by Federal partners within the LCR is that activities in and affecting such Consequently, we believe that the MSCP planning area are limited. USBR habitat require consultation under informational benefits have already manages lower Colorado River water section 7 of the Act. Such consultation occurred through past actions even storage, river regulation, and channel would ensure that adequate protection though the LCR MSCP planning area is maintenance such that the river stays is provided to avoid destruction or not designated as critical habitat. The within its incised channel and can no adverse modification of critical habitat. importance of the LCR MSCP planning longer flow onto the adjacent No different than our description above, area for flycatcher conservation and to floodplain. As a result of the ‘‘Law of we expect that the degraded meet conservation goals established for The River,’’ USBR has no discretion to environmental baseline caused by water the LCR Recovery and Management change these water management actions storage, river regulation, and channel Units is well understood by managing to allow a better functioning stream to maintenance would cause similar agencies, Native American tribes, improve the riparian forest. Improving evaluations and conclusions in section private industry, and public, State, and the duration, magnitude, and timing of 7 consultations on tribal lands within local governments. river flow would generate overbank the LCR MSCP planning area. However, The conservation and enhancement of flooding, create and recycle riparian our consultation history to date shows riparian habitat is a primary land habitat, and, therefore, improve the that other than development of the LCR management target of the LCR MSCP quality and abundance of flycatcher MSCP and accompanying section 7 partners, land management agencies, habitat. Because of the lack of flooding consultation, no formal consultations and tribal governments along the LCR and the prevention of overbank flows, with the BIA or other agencies on MSCP planning area because of the the floodplain can no longer support the flycatchers or its habitat have occurred previous and long-term impacts pre-dam riparian forest. While land on tribal lands within the LCR MSCP attributed to LCR regulation. These land managers (BLM, NPS, and Service planning area. Additionally, because management agencies and LCR MSCP NWRs) along the LCR floodplain do these tribes are also implementing their partners represent a large proportion of exercise discretionary actions on their Flycatcher Management Plans that the land ownership and management lands, the success of their conservation preserves existing habitat, similarly within the LCR MSCP planning area and actions and impacts of other actions to within the limitations caused by land surrounding the Colorado River. restore pre-dam riparian forests are regulation of the Colorado River, there Additionally, water delivery to western limited by the impacts of water are likely few regulatory benefits to be States is one of the uses of the Colorado management. Overall, the riparian forest gained from a designation of flycatcher River, and those providers are LCR and flycatcher habitat managed by these critical habitat. MSCP partners. As a result, of the broad land management agencies are not Another important benefit of land ownership along and surrounding expected to be harmed further by site- including lands in a critical habitat the Colorado River, and water delivery specific land management actions designation is that the designation can interests, each of these entities is well because the quality of vegetation has serve to educate landowners, agencies, aware of the importance of the LCR for already been degraded. To the extent tribes, and the public regarding the the flycatcher, the importance of that remaining patches of riparian potential conservation value of an area, maintaining water quality, and the habitat and flycatcher habitat continue and may help focus conservation efforts challenges to improve riparian habitat to exist, they are of great value for on areas of high conservation value for as a result of river regulation, and flycatcher conservation. As a result, past certain species. Any information about therefore the educational benefit and section 7 consultations on land the flycatcher that reaches a wide support of other laws and regulations is management agency actions within the audience, including parties engaged in minimized. For the reasons described proposed critical habitat along the LCR conservation activities, is valuable. The above and more specifically, because show that land management agencies designation of critical habitat may also formal section 7 consultations will conserve existing riparian vegetation strengthen or reinforce some Federal likely result in only discretionary and explore innovative strategies laws such as the Clean Water Act. These conservation recommendations due to outside of the restrictions on water laws analyze the potential for projects to existing management efforts, we believe management to improve vegetation significantly affect the environment. there is a low probability of mandatory quality that could be used by Critical habitat may signal the presence elements arising from formal section 7 flycatchers. Because the regulated of sensitive habitat that could otherwise consultations. Therefore, we find the

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section 7 consultation process for a The LCR MSCP will help generate partnerships with others. Concerns over designation of critical habitat is unlikely important status and trend information perceived added regulation potentially to result in additional protections for for flycatcher recovery. In addition to imposed by critical habitat harms this the flycatcher on lands within the LCR specific flycatcher conservation actions, collaborative relationship by leading to MSCP planning area (which includes the development and implementation of distrust. Our experience has NPS, Service, BLM, tribal lands, and this HCP provides regular monitoring of demonstrated that successful non-Federal lands). flycatcher habitat, distribution, and completion of one HCP has resulted in abundance over the 50-year permit. the development of other conservation Benefits of Exclusion—Lower Colorado Failure to exclude the LCR MSCP efforts and HCPs with other landowners. River Multi-Species Conservation Plan planning area could be a disincentive Partners associated with the LCR MSCP The benefits of excluding the LCR for other entities contemplating also established HCPs with the Service from the Lake Mead high water mark to partnerships as it would be perceived as in central Arizona. Mexico (including a small portion of the a way for the Service to impose There are additional considerable lower Bill Williams River in Arizona) additional regulatory burdens once benefits from excluding the five tribes from being designated as critical habitat conservation strategies have already along the LCR, and other than are considerable, and include the been agreed to. Private entities are landowners and partners within the conservation measures described above motivated to work with the Service LCR MSCP planning area. The benefits (land acquisition, management, and collaboratively to develop voluntary of excluding tribal Lands from development) and those associated with HCPs because of the regulatory certainty designated critical habitat specifically implementing conservation through provided by an incidental take permit include the advancement of our Federal enhancing and developing partnerships. under section 10(a)(1)(B) of the Act with Indian Trust obligations and our A small benefit of excluding the LCR the No Surprises Assurances. This deference to tribes to develop and from critical habitat includes some collaboration often provides greater implement tribal conservation and reduction in administrative costs conservation benefits than could be natural resource management plans for associated with engaging in the critical achieved through strictly regulatory their lands and resources, which habitat portion of section 7 approaches, such as critical habitat includes the flycatcher. Benefits consultations. Administrative costs designation. The conservation benefits associated with excluding tribes and include time spent in meetings, resulting from this collaborative other land owners and managers also preparing letters and biological approach are built upon a foundation of include: (1) The maintenance of assessments, and in the case of formal mutual trust and understanding. It has effective working relationships to consultations, the development of the taken considerable time and effort to promote the conservation of the critical habitat component of a establish this foundation of mutual trust flycatcher and its habitat; (2) the biological opinion. However we and understanding, which is one reason allowance for continued meaningful anticipate that the costs to perform the it often takes several years to develop a collaboration and cooperation; (3) the additional critical habitat and associated successful HCP. Excluding this area provision of conservation benefits to adverse modification analysis would not from critical habitat would help riparian ecosystems and the flycatcher be significant. promote and honor that trust by and its habitat that might not otherwise The exclusion of the LCR from critical providing greater certainty for occur; and (4) the reduction or habitat as a result of the LCR MSCP can permittees that once appropriate elimination of administrative and/or help facilitate other cooperative conservation measures have been agreed project modification costs as analyzed conservation activities with other to and consulted on for listed and in the economic analysis. similarly situated dam operators or sensitive species additional consultation During the development of the 2011 landowners. Continued cooperative will not be necessary. flycatcher critical habitat proposal, our relations with the three States and a HCP permittees and stakeholders previous 2005 flycatcher critical habitat myriad of stakeholders is expected to submitted comments that they view proposal, and other previous efforts influence other future partners and lead critical habitat designation along the such as development of the Recovery to greater conservation than would be LCR as unwarranted and an unwelcome Plan, we have met and communicated achieved through multiple site-by-site, intrusion to river operations, and an in other ways with tribes to discuss how project-by-project efforts, and associated erosion of the regulatory certainty that they might be affected by the regulations section 7 consultations. With the is provided by their incidental take associated with flycatcher management, current degraded condition of the permit and the No Surprises assurances. flycatcher recovery, and the designation environmental baseline and limitations Additionally, the LCR MSCP partners of critical habitat. As such, we associated with changes to dam and stakeholders sent comments of established relationships specific to operations, the commitment to develop support for exclusion of all the LCR flycatcher conservation. As part of our and manage over 1,600 ha (4,000 ac) of MSCP partners within the planning relationship, we provided technical flycatcher habitat is significant. The area, specifically Service NWRs because assistance to each of these tribes to benefits of excluding lands within the they were not initially identified as develop measures to conserve the LCR MSCP plan area from critical locations we were considering for flycatcher and its habitat on their lands. habitat designation include recognizing exclusion. Having applicants These measures are contained within the value of conservation benefits understand the Service’s commitment the management and conservation plans associated with these HCP actions; will encourage continued partnerships that we have in our supporting record encouraging actions that benefit with these permittees that could result for this decision (see discussion above). multiple species; encouraging local in additional conservation plans or These proactive actions were conducted participation in development of new additional lands enrolled in HCPs. in accordance with Secretarial Order HCPs; and facilitating the cooperative Our collaborative relationships with 3206, ‘‘American Indian Tribal Rights, activities provided by the Service to the LCR MSCP permittees clearly make Federal-Tribal Trust Responsibilities, landowners, communities, and counties a difference in our partnership with the and the Endangered Species Act’’ (June in return for their voluntary adoption of numerous stakeholders involved and 5, 1997); the relevant provision of the the HCP. influence our ability to form Departmental Manual of the Department

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of the Interior (512 DM 2); and LCR operations. The Law of the River, permittees from California, Arizona, and Secretarial Order 3317, ‘‘Department of which protects the regulation and Nevada that took about a decade to Interior Policy on Consultation with delivery of Colorado River water to the complete. Therefore, managing agencies, Indian Tribes’’ (December 1, 2011). We western United States, prevents altering States, counties, cities, and other believe that these tribes should be the the regulation of the Colorado River for stakeholders are aware of the governmental entities to manage and the benefit of a more naturally importance of the LCR for the promote flycatcher conservation on functioning system, which can create flycatcher. For these reasons, we believe their lands. During our communication and recycle flycatcher habitat. As a that designation of critical habitat along with these tribes, we recognized and result, the development of the LCR the LCR MSCP planning area would endorsed their fundamental right to MSCP and its Implementing Agreement provide little additional educational provide for tribal resource management are designed to ensure flycatcher benefit or benefit from other laws and activities, including those relating to conservation within the planning area regulations. riparian ecosystems. and includes management measures to Covered activities under the LCR The benefits of excluding this HCP protect, restore, enhance, manage, and MSCP are not the only possible impacts from critical habitat designation include monitor flycatcher habitat (along the to flycatcher habitat along the LCR. relieving Federal agencies, State Colorado River and at mitigation sites). There are continued projects developed, agencies, landowners, tribes, The adequacy of LCR MSCP carried out, funded, and permitted by communities, and counties of any conservation measures to protect the Federal agencies such as USBR and additional regulatory burden for water flycatcher and its habitat have BLM that are not covered by the LCR management actions that might be undergone evaluation under section 7 MSCP. Fire management, habitat imposed by critical habitat. The LCR consultation under the Act, including restoration, recreation, and other MSCP took many years to develop and, proposed critical habitat in 2005 prior to activities have the ability to adversely upon completion, became a river long approval of the plan, reaching a non- affect the flycatcher and critical habitat. conservation plan that is consistent with jeopardy and no adverse modification Minor changes in habitat restoration, the flycatcher recovery objectives within conclusion. Therefore, the benefit of fire management, and recreation could the planning area. This HCP provides including the LCR MSCP planning area occur as result of a critical habitat flycatcher conservation benefits and to require section 7 consultation for designation in the form of additional commitments toward habitat critical habitat is minimized. discretionary conservation development and management, and The commitment by the LCR MSCP recommendations to reduce impacts to flycatcher surveys and studies that partners to flycatcher conservation critical habitat. Therefore, if the LCR could not be achieved through project- throughout the Lake Mead to Mexico was designated as critical habitat, there by-project section 7 consultations. planning area (and a portion of the may be some benefit through Imposing an additional regulatory lower Bill Williams River) is consultation under the adverse review after the HCP is completed, considerable. The LCR MSCP commits modification standard for actions not solely as a result of the designation of to developing, managing, and protecting covered by the LCR MSCP. But, as critical habitat, may undermine 1,639 ha (4,050 ac) of flycatcher nesting explained above, the habitat along the conservation efforts and partnerships in habitat within the boundaries of their LCR is so degraded that it is unlikely many areas. In fact, it could result in the planning area. As described above, that a section 7 consultation under an loss of species’ benefits if future much of these habitats are expected to adverse modification standard would participants abandon the voluntary HCP occur within agricultural fields adjacent result in mandatory elements (i.e., process. Designation of critical habitat to river. The culmination of these efforts reasonable and prudent alternatives) along the LCR could be viewed as a is anticipated to surpass goals within the LCR MSCP planning area. disincentive to those entities currently recommended in the Recovery Plan; In reaching the conclusion that developing HCPs or contemplating them maintain, develop and improve benefits of exclusion of the LCR MSCP in the future. migration, dispersal, sheltering, and planning area outweigh the benefits of foraging habitat; develop inclusion as flycatcher critical habitat, Benefits of Exclusion Outweigh the metapopulation stability; and protect we have weighed the benefits of Benefits of Inclusion—Lower Colorado against catastrophic losses. including these lands as critical habitat River Multi-Species Conservation Plan Additional riparian habitat along the with an operative HCP and management We have determined that the benefits river that can be used by flycatchers, by NWRs, tribal Lands, and others, and of excluding the LCR MSCP planning mostly as migratory habitat and also as without critical habitat. Implementation area along the LCR within the States of nesting habitat, occurring across of flycatcher conservation included Arizona, California, and Nevada from thousands of hectares (acres), will within the LCR MSCP planning area, the conservation space of Lake Mead to collectively be restored, managed, and combined with the conservation efforts Mexico (and a small portion of the maintained on NWRs (Havasu, Cibola, of other land managers, is anticipated to lower Bill Williams River in Arizona) Imperial, and Bill Williams River), result in over 1,639 ha (4,050 ac) of from the designation of flycatcher Federal lands (NPS and BLM), and tribal flycatcher habitat. Excluding the LCR critical habitat on all Federal, State, lands (Hualapai, Colorado River, within the LCR MSCP planning area tribal, and non-Federal lands outweigh Chemehuevi, Fort Mojave, and would eliminate some small additional the benefits of inclusion, and will not Quechan—Fort Yuma) along the LCR administrative effort and cost during the result in extinction of the flycatcher. within the area covered by the LCR consultation process pursuant to section Under section 7 of the Act, critical MSCP. 7 of the Act. Excluding the LCR MSCP habitat designation will provide little This HCP involved public planning area would continue to help additional benefit to the flycatcher participation through public notices and foster development of future HCPs and within the boundaries of the LCR MSCP. comment periods associated with the strengthen our relationship with The catalyst for the LCR MSCP was NEPA process prior to being approved. Arizona, California, and Nevada largely a result of the jeopardy Additionally, this HCP is one of the permittees and stakeholders, biological opinion (Service 1997, entire) largest HCPs in the country, with an eliminating regulatory uncertainty for the flycatcher to the USBR for its extensive list of stakeholders and associated with permittees and

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stakeholders. Excluding the LCR MSCP Commission purchased portions of the Annual flycatcher surveys at Key planning area eliminates any possible area in 1962 and 1966, using Federal Pittman continue to be coordinated by risk to water storage, delivery, diversion Aid in Wildlife and Sport Fish NDOW through the Endangered Species and hydroelectric production to Restoration Act funds, primarily for Act Traditional Section 6 Funds Arizona, California, and Nevada, and waterfowl hunting, and as a secondary Program. A total of 11 to 18 flycatcher therefore significant potential economic goal, to improve habitat for waterfowl territories per year have been costs due to a critical habitat and other wetland species. Pursuant to documented at Key Pittman from 2007 designation. We have therefore Federal Aid regulations, the property to 2011, a large increase from the 2 pairs concluded that the benefits to the must continue to serve the purpose for documented in 1999. Flycatcher flycatcher and its habitat as result of the which it was purchased (16 U.S.C. 669– territories at Key Pittman are important improvement, maintenance, and 669i; 50 Stat. 917). for the recovery of the species as they management activities attributed to the The NDOW first conducted flycatcher account for approximately half of the LCR MSCP, and those additional efforts surveys at Key Pittman in 1999. and total number of known territories conducted by NWRs, tribes, and other observed the successful nesting of two throughout the Pahranagat Management land managers, outweigh those that pairs of flycatchers. At that time, Unit. would result from the addition of a approximately 0.57 ha (1.4 ac) of Although active plantings have not critical habitat designation. We have suitable coyote willow habitat existed. yet been completed, NDOW may plan therefore excluded these lands from the Over the last decade, the vegetation has future habitat enhancement projects final critical habitat designation matured and now provides 1.4 ha (3.6 dependent on funding opportunities. pursuant to section 4(b)(2) of the Act. ac) of suitable habitat consisting of 15 NDOW has successfully managed to small stands of coyote willow patches increase the health of existing willow Exclusion Will Not Result in Extinction surrounded by dry upland scrub and patches, which has encouraged the of the Species—Lower Colorado River bulrush marsh along the western edge of recruitment of willows. As previously Multi-Species Conservation Plan Nesbitt Lake. described, NDOW has enhanced Exclusion of the Colorado River A management plan for Key Pittman, existing willows with the completion of within the LCR MSCP planning area which included strategies for managing their fencing project. will not result in extinction of the flycatcher habitat, was completed in April 2005, to provide a framework for Benefits of Inclusion—Key Pittman flycatcher. The amount of land being State Wildlife Area established as result of implementing implementing management actions for the LCR MSCP, combined with the next 10 years (NDOW 2005, entire). As discussed above under management by other land managers, is Specific strategies identified in the plan Application of Section 4(b)(2) of the Act, Federal agencies, in consultation with anticipated to be able to reach recovery to maintain and enhance riparian the Service, must ensure that their goals established for these LCR systems to benefit the flycatcher and actions are not likely to jeopardize the Management Units. The Implementation other neotropical migratory birds continued existence of any listed Agreement establishes a 50-year include: (1) Fencing of willow habitat species or result in the destruction or commitment to accomplish these tasks. patches along Nesbitt Lake; (2) adverse modification of any designated Overall, we expect greater flycatcher maintenance of high water levels at critical habitat of such species. The conservation through these Nesbitt Lake from April 15 through difference in the outcomes of the commitments than through project-by- August 1 to inundate the flycatcher jeopardy analysis and the adverse project evaluation implemented through habitat and to encourage the modification analysis represents the a critical habitat designation. As a result establishment of willows; (3) commitment to monitor the population regulatory benefit and costs of critical of the commitment toward flycatcher status of the flycatcher at Key Pittman; habitat. conservation, we do not expect that and (4) planting of cottonwood, coyote The stream within the Key Pittman exclusion will result in extinction of the willow, and ash throughout Key Wildlife Area being addressed is known flycatcher. Pittman. to be occupied by flycatchers and has Pahranagat Management Unit This management plan has been been evaluated under section 7 of the effectively implemented to improve Act related to the receipt of Federal Key Pittman State Wildlife Area flycatcher habitat at Key Pittman. In funding toward land management. We Management Plan 2008, NDOW completed fencing to believe there is minimal benefit from Key Pittman Wildlife Management exclude livestock grazing from the designating critical habitat for the Area (Key Pittman) is located in coyote willow patches along the west flycatcher at Key Pittman. As previously Pahranagat Valley in Lincoln County, side of Nesbitt Lake, and currently discussed, the principal benefit of Nevada, and encompasses 539 ha (1,332 maintains the fence annually. Since the designated critical habitat is that ac) of diverse habitats. The entirety of fencing was completed, monitoring of activities affecting that habitat require the water in Key Pittman originates at the willows has shown an increase in consultation under section 7 of the Act Hiko Springs and is delivered to health, vigor, and expansion of the if a Federal action is involved. Such Frenchy Lake, Nesbitt Lake, patches. consultation would ensure adequate impoundments, and irrigated fields via NDOW implements a water protection is provided to avoid pipes and ditches. The majority of management plan that typically destruction or adverse modification of Pahranagat Valley is in private inundates the willow patches with critical habitat. Annually, NDOW ownership with modified systems of water from the lake in mid-April to consults with the Service regarding the springs, outflow ditches, agricultural ensure habitat conditions are suitable distribution of federal funds to NDOW fields, ponds, and urban development. for breeding flycatchers. As water is under the Wildlife and Sport Fish We proposed 3.9 km (2.5 mi) of area slowly lowered from the lake Restoration Program and Endangered occurring in Key Pittman as critical throughout the breeding season, the Species Act Traditional Section 6 Funds habitat. water recedes 20 to 30 m from the Program. During these consultations, The NDOW owns and manages Key willow patches, leaving moist soil by NDOW coordinates with the Service to Pittman. The Nevada Fish and Game the end of June or July. incorporate conservation measures to

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protect flycatcher habitat at Key Pittman research, managing property, and positive incentives to non-Federal and to ensure population status working with private landowners landowners and land managers to monitoring continues. Beyond these towards wildlife conservation. The voluntarily conserve natural resources consultations, NDOW has not initiated NDOW has demonstrated a willingness and to remove or reduce disincentives any section 7 consultations or to develop, maintain, and manage Key to conservation (Wilcove et al. 1996, pp. implemented any projects that may Pittman flycatcher habitat, as well as 1–14; Bean 2002, p. 2). Thus, we believe negatively affect flycatchers or their habitat for other sensitive and non-listed it is vital for flycatcher recovery to build habitat at Key Pittman. Based on the species. on continued conservation activities limited consultation history, and land The success of NDOW’s Key Pittman such as these with a proven partner, and management commitments to support management of habitat protection and to provide positive incentives for other flycatcher habitat, any additional benefit development has resulted in flycatcher non-Federal land managers who might afforded to flycatcher habitat from habitat protection, an increase in be considering implementing voluntary consulting on designated critical habitat territories, and a large portion of the conservation activities but have at Key Pittman is negligible. known territories within the Pahranagat concerns about incurring incidental Another important benefit of Management Unit. NDOW has also regulatory, administrative, or economic including lands in a critical habitat effectively partnered with private impacts. Flycatcher habitat conservation designation is that the designation can landowners in the Pahranagat Valley. at Key Pittman is established through serve to educate landowners, agencies, These positive partnerships between planning documents, has a long record tribes, and the public regarding the private, State, and Federal organizations of success, and resulted in successful potential conservation value of an area, will encourage conservation practices flycatcher breeding sites. and may help focus conservation efforts for flycatcher habitat across land on areas of high conservation value for management boundaries. Exclusion of Benefits of Exclusion Outweigh Benefits certain species. Any information about this area from the designation will of Inclusion—Key Pittman State the flycatcher that reaches a wide maintain and strengthen the partnership Wildlife Area audience, including parties engaged in between the Service and the NDOW and We have determined that the benefits conservation activities, is valuable. The further flycatcher conservation efforts. of exclusion of all Key Pittman lands designation of critical habitat may also Our collaborative relationship with within the Pahranagat Management NDOW makes a difference in our strengthen or reinforce some Federal Unit, which include the 3.9 km (2.5 km) partnership with the numerous laws such as the Clean Water Act. These stream segment beginning at Hiko stakeholders involved with flycatcher laws analyze the potential for projects to Springs that travels down through management and recovery and also significantly affect the environment. Frenchy and Nesbitt Lakes outweigh the influences our ability to form Critical habitat may signal the presence benefits of inclusion and will not result partnerships with others. Concerns over of sensitive habitat that could otherwise in extinction of the flycatcher. In perceived added regulation potentially be missed in the review process for making this exclusion, we have weighed these other environmental laws. imposed by critical habitat could harm the benefits of including these lands as The Service and NDOW are familiar this collaborative relationship. critical habitat and the benefits without with the flycatcher within Key Pittman. The benefits of excluding Key Pittman The Service and NDOW have addressed include some minimal reduction in critical habitat. the flycatcher in prior section 7 administrative costs associated with The benefits of designating critical consultations for Federal Aid toward engaging in section 7 consultations for habitat for the flycatcher within Key funding for Key Pittman management critical habitat where NDOW may Pittman are relatively small in actions. NDOW conducts flycatcher receive Federal funding. Administrative comparison to the benefits of exclusion. surveys within Key Pittman and costs include additional time spent in We find that including this stream addressed the flycatcher and protecting meetings and preparing letters, and in segment as critical habitat would result and improving its habitat within their the case of biological assessments and in minimal, if any additional benefits to Management Plan. Because of the informal and formal consultations, the the flycatcher. Because any potential overall conservation awareness and development of those portions of these impacts to flycatcher habitat from future implementation of conservation actions documents that specifically address the projects with a Federal nexus will be associated with the Key Pittman critical habitat designation. The NDOW addressed through a section 7 management plan, we believe there is and FWS staff can, more appropriately, consultation with the Service under the little educational benefit or support for use these limited funds toward jeopardy standard, we believe that the other laws and regulations attributable continuing to manage and improve incremental conservation and regulatory to critical habitat beyond those benefits NDOW lands for their stated purpose: benefit of designated critical habitat on already achieved from listing the wildlife conservation. Key Pittman would largely be redundant flycatcher under the Act. Because so many important flycatcher with the combined benefits of listing areas occur on lands managed by non- and existing management. We believe Benefits of Exclusion—Key Pittman Federal entities, collaborative past, present, and future coordination State Wildlife Area relationships are essential for flycatcher with NDOW has provided and will A considerable benefit from excluding recovery. The flycatcher and its habitat continue to provide sufficient education Key Pittman as flycatcher critical habitat are expected to benefit substantially regarding flycatcher habitat is the maintenance and strengthening of from voluntary land management conservation needs on these lands, such ongoing conservation partnerships. In actions that implement appropriate and that there would be minimal additional addition to the effort for Key Pittman, effective conservation strategies. The educational benefit or support from NDOW has a significant partnership role conservation benefits of critical habitat other laws and regulations from by developing and implementing are primarily regulatory or prohibitive designation of critical habitat. flycatcher management guidance, in nature. Where consistent with the Therefore, the incremental conservation conducting project assessment, discretion provided by the Act, the and regulatory benefits of designating implementing recovery strategies, Service believes it is necessary to critical habitat within Key Pittman are conducting flycatcher surveys and implement policies that provide minimal.

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Because Key Pittman is a State- stream segment under the NDOW The Muddy River area of OWMA is managed wildlife area, it is not expected management pursuant to section 4(b)(2) managed in part for intensive that land use changes would occur that of the Act outweigh any benefits that development, agriculture, and wildlife. would alter the preservation of these would result from designating these Water from the Muddy River is lands. NDOW has provided assurance areas as critical habitat. controlled on the north side of OWMA through conservation actions and by a diversion structure that releases Exclusion Will Not Result in Extinction consultations that the habitat at Key water through a channel to ditches that of the Species—Key Pittman State Pittman will be protected and enhanced. distribute water to fields. Regular Wildlife Area As previously described, NDOW’s maintenance is conducted to keep the existing management plan has We find that the exclusion of this channel clear of silt and debris in order effectively guided the implementation stream segment within Key Pittman will to reduce water from backing up above of projects to ensure the protection of not lead to the extinction of the OWMA during flood events. Water key flycatcher habitat at Key Pittman. flycatcher. Flycatcher habitat protection management on the Muddy River side of NDOW strategies to protect and improve and recovery is supported due to OWMA is guided by a plan that is flycatcher habitat have resulted in an NDOW’s long-term management of Key adjusted each year based on projected increase in the abundance of territories Pittman. NDOW has a long track record water supplies and is highly controlled at Key Pittman since exclusion from of Key Pittman management that has by Lake Mead water levels as managed critical habitat designation in 2005. resulted in an increase in flycatcher by BOR. Also, commitments through NDOW’s territories. Additionally, the long-term Occupied breeding flycatcher habitat implementation of their Key Pittman protection of flycatcher habitat at Key on the Muddy River side of OWMA Management Plan will continue to foster Pittman is supported because the occurs primarily within a 200-meter the maintenance, development, and landscape will be preserved as open (660-ft) span of the main channel of the survey of flycatcher habitat. Also, space due to its inclusion within a Muddy River and consists of mixed because the flycatcher occurs on these Wildlife Area. As a result of these tamarisk and willow habitat. Prior to lands with these management actions conservation and management actions, 2005, limited surveys for flycatchers and conservation in place, we anticipate exclusion of streams with Key Pittman were conducted. From 2005 to 2011, 4 that any formal section 7 consultations will not result in extinction of the to 7 flycatcher territories per year have conducted on critical habitat would flycatcher. been documented in these riparian only likely result in discretionary Overton State Wildlife Area (Muddy areas. An OWMA management plan, which conservation recommendations. River) Management Plan The benefits of excluding Key Pittman included strategies for managing from critical habitat are considerable. The Overton Wildlife Management flycatcher habitat, was completed in Key Pittman management, in Area (OWMA) is located in Clark December 2000, to provide a framework cooperation and coordination with the County, Nevada, and is managed by the for implementing management actions Service, are based on appropriate land State of Nevada’s Department of for the next 10 years (Nevada and water management strategies Wildlife (NDOW). Stretches of both the Department of Conservation and described in the Recovery Plan. These Muddy River and Virgin River run Wildlife Resources, 2000, entire). This land and water management strategies through OWMA. OWMA encompasses a plan is targeted for revision in the near of protecting and improving flycatcher wide diversity of habitats within its future. Specific strategies identified in and wildlife habitat within Key Pittman 7,146 ha (17,657 ac). Approximately 20 the plan to maintain and enhance demonstrate an ongoing management percent of lands comprising OWMA are riparian systems to benefit the commitment. Exclusion of these lands owned by the State of Nevada, and 80 flycatcher and other neotropical from critical habitat will help preserve percent are lands leased from BOR and migratory birds at OWMA include: (1) and strengthen the conservation NPS. Funding for the operation and Selecting sites with dependable water partnership we have developed with maintenance of OWMA results sources to plant a minimum of one NDOW, reinforce those we are building primarily (74 percent) from Federal Aid willow patch per year at least 0.10 ha with other entities, and foster future in Wildlife Restoration Act funds with (0.25 ac) in size; establish native black partnerships and development of an additional 25 percent funded by the and coyote willow in patches and management plans. In contrast, State, and 1 percent funded by Federal inundate them at 2 to 3 week intervals; inclusion as critical habitat may Aid in Sport Fish Restoration Act funds. and (2) use volunteer groups of native negatively impact our relationships with Pursuant to Federal Aid regulations, the riparian and upland riparian species to NDOW and other existing or future property must continue to serve the establish plantings. partners. We are committed to working purpose for which it is funded, in this Between 2000 and 2002, willow with NDOW to further flycatcher case for waterfowl as well as other plantings were implemented along conservation and other endangered and wetland species (16 U.S.C. 669–669i; 50 several ponds and fields on the Muddy threatened species. Therefore, in Stat. 917). River side of OWMA. Two of the three consideration of the relevant impact to Within the OWMA, we identified plantings were impacted due to beavers, our partnership and NDOW’s ongoing segments of both the Muddy River (3.1 but one planting survived and currently conservation management practices, we km, 1.9 mi) included the Pahranagat provides migratory habitat for determine that the considerable benefits Management Unit and Virgin River (6.5 flycatchers. An additional 2 acres of of exclusion outweigh the benefits of km, 4.0 mi) included in the Virgin willows were established around inclusion in the critical habitat Management Unit as proposed critical various ponds and are flooded designation. habitat and segments we were periodically throughout the growing After weighing the benefits of considering for exclusion. Following season. Future sites will be considered including the 3.9-km (2.5-mi) stream our analysis, we concluded that we for plantings and seeding as water segment within Key Pittman as would not exclude the Virgin River delivery systems are improved and flycatcher critical habitat against the segment under section 4(b)(2) of the Act funding opportunities become available. benefit of exclusion, we have concluded (see Summary of Issues and During the flycatcher breeding season that the benefits of excluding this Recommendations section). in 2005, NDOW bulldozed a 0.30-ha

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(0.74-ac) area along the Muddy River to distribution of Federal funds to OWMA of the need to address and correct the repair damage to a water control system under the Wildlife Sport Fish situation that led to alteration flycatcher caused by floods occurring in the winter Restoration Program and Endangered habitat in 2005, OWMA has increased of 2004 to 2005. This work occurred Species Act Traditional Section 6 Funds its overall flycatcher conservation mostly in occupied flycatcher habitat, Program. During these informal awareness. With the continued where one known territory was located. consultations, NDOW has coordinated implementation of conservation actions Additional repair work was with the Service to incorporate associated with their OWMA implemented over the winter of 2007 to conservation measures to protect management plan, we believe there is 2008, and involved using heavy flycatcher habitat at OWMA and to little educational benefit or support for equipment to dredge two stretches of ensure population status monitoring other laws and regulations attributable the channel of the Muddy River. This continues. These procedures generated to critical habitat beyond those benefits resulted in the removal of a 10-to 15-m the opportunity to discuss the land already achieved from listing the (30-to 50-ft) swath of vegetation along a management actions that altered flycatcher under the Act. 0.75-km (0.47-mi) long stretch of the flycatcher habitat in 2005, and put in Benefits of Exclusion—Overton State western bank of the river. Although not place procedures to prevent them from Wildlife Area completed during the breeding season, occurring in the future. Beyond these the dredging ended upstream within 10 informal consultations, NDOW has not A considerable benefit from excluding m (30 ft) of a nest area that had been initiated any formal section 7 OWMA as flycatcher critical habitat is active from 2005 to 2007, and then consultations at OWMA. Based on the the maintenance and strengthening of resumed downstream within 5 m (16 ft) limited formal consultation history, ongoing conservation partnerships. In of another nest. close coordination, and the overall addition to the effort for OWMA, NDOW Since the winter 2007 to 2008 repair management success of flycatcher has a significant partnership role by work, NDOW has worked closely with habitat along the Muddy River, any developing and implementing flycatcher the Service through section 7 additional benefit afforded to flycatcher management guidance, conducting consultations to develop conservation habitat from consulting on designated project assessment, implementing measures to ensure future operations critical habitat at OWMA is likely recovery strategies, conducting and maintenance activities along the negligible. Beyond these consultations, flycatcher surveys and research, Muddy River of OWMA do not NDOW has not sought any section 7 managing property, and working with negatively impact occupied flycatcher consultations with the Service at private landowners towards wildlife habitat. NDOW also intends to OWMA. Based on the limited formal conservation. The NDOW has incorporate these conservation measures consultation history, any additional demonstrated a willingness to develop, in future revisions of the OWMA benefit afforded flycatcher habitat from maintain, and manage portions of the management plan. consulting on designated critical habitat Muddy River for flycatcher habitat, as well as habitat for other sensitive and Benefits of Inclusion—Overton State at Overton is negligible. Another important benefit of non-listed species. Wildlife Area including lands in a critical habitat Our collaborative relationship with As discussed above under designation is that the designation can NDOW makes a difference in our Application of Section 4(b)(2) of the Act, serve to educate landowners, agencies, partnership with the numerous Federal agencies, in consultation with tribes, and the public regarding the stakeholders involved with flycatcher the Service, must ensure that their potential conservation value of an area, management and recovery and also actions are not likely to jeopardize the and may help focus conservation efforts influences our ability to form continued existence of any listed on areas of high conservation value for partnerships with others. Concerns over species or result in the destruction or certain species. Any information about perceived added regulation potentially adverse modification of any designated the flycatcher that reaches a wide imposed by critical habitat could harm critical habitat of such species. The audience, including parties engaged in this collaborative relationship. difference in the outcomes of the conservation activities, is valuable. The Exclusion of this area from the jeopardy analysis and the adverse designation of critical habitat may also designation would maintain and modification analysis represents the strengthen or reinforce some Federal strengthen the partnership between the regulatory benefit and costs of critical laws such as the Clean Water Act. These Service and the NDOW and further habitat. laws analyze the potential for projects to flycatcher conservation efforts. The The stream within the OWMA being significantly affect the environment. success of NDOW’s OWMA addressed is known to be occupied by Critical habitat may signal the presence management of habitat protection and flycatchers and has been evaluated of sensitive habitat that could otherwise development has resulted in a persistent under section 7 of the Act related to the be missed in the review process for population of flycatcher territories, an receipt of Federal funding toward land these other environmental laws. important component to the recovery of management. We believe there is The Service and NDOW are familiar flycatchers in the Pahranagat minimal benefit from designating with the flycatcher within OWMA. The Management Unit and the LCR Recovery critical habitat for the flycatcher along Service and NDOW have addressed the Unit. NDOW is a key partner to the the Muddy River within OWMA. As flycatcher in prior section 7 Service in species conservation previously discussed, the principal consultations for Federal Aid toward throughout the State of Nevada and benefit of designated critical habitat is funding for OWMA management manages important flycatcher habitat at that activities affecting that habitat actions. NDOW conducts flycatcher OWMA. Because some of the lands at require consultation under section 7 of surveys within OWMA and addressed OWMA are leased, NDOW partners with the Act if a Federal action is involved. the flycatcher and protecting and BOR and NPS to manage OWMA for Such consultation would ensure improving its habitat within their multiple-use objectives. Additionally, adequate protection is provided to avoid Management Plan. NDOW manages NDOW coordinates with private destruction or adverse modification of flycatcher habitat and conducts landowners to address wildlife and critical habitat. Annually, NDOW has flycatcher surveys at both the OWMA habitat management concerns that cross consulted with the Service regarding the and Key Pittman Wildlife Area. Because ownership boundaries. These positive

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partnerships between private, State, and their stated purpose, wildlife in discretionary conservation Federal organizations will encourage conservation. recommendations. conservation practices for flycatcher The benefits of excluding OWMA Benefits of Exclusion Outweigh Benefits habitat across land management from critical habitat are considerable. of Inclusion—Overton State Wildlife boundaries. Excluding OWMA from OWMA management, in cooperation Area critical habitat designation will enhance and coordination with the Service, are these existing working relationships. We have determined that the benefits based on appropriate land and water These positive partnerships between of excluding 3.1 km (1.9 mi) of the management strategies described in the private, State, and Federal organizations Muddy River on OWMA lands within Recovery Plan. These land and water will encourage conservation practices the Pahranagat Management Unit management strategies of protecting and for flycatcher habitat across land outweigh the benefits of inclusion and improving flycatcher and wildlife management boundaries. will not result in extinction of the habitat within OWMA demonstrate an Because so many important flycatcher flycatcher. In making this exclusion, we ongoing management commitment. areas occur on lands managed by non- have weighed the benefits of including Exclusion of these lands from critical Federal entities, collaborative these lands as critical habitat and the habitat will help preserve and relationships are essential for flycatcher benefits without critical habitat. strengthen the conservation partnership recovery. The flycatcher and its habitat The benefits of designating critical we have developed with NDOW, are expected to benefit substantially habitat for the flycatcher within OWMA reinforce those we are building with from voluntary land management are relatively small in comparison to the other entities, and foster future actions that implement appropriate and benefits of exclusion. We find that partnerships and development of effective conservation strategies. The including the Muddy River stream management plans. In contrast, conservation benefits of critical habitat segment as critical habitat would result inclusion as critical habitat may are primarily regulatory or prohibitive in minimal, if any additional benefits to negatively impact our relationships with in nature. Where consistent with the the flycatcher. Because any potential NDOW and other existing or future discretion provided by the Act, the impacts to flycatcher habitat from future partners. We are committed to working Service believes it is necessary to projects with a Federal nexus will be with NDOW to further flycatcher implement policies that provide addressed through a section 7 conservation and other endangered and positive incentives to non-Federal consultation with the Service under the threatened species. Therefore, in landowners and land managers to jeopardy standard, we believe that the consideration of the relevant impact to voluntarily conserve natural resources incremental conservation and regulatory our partnership and NDOW’s ongoing and to remove or reduce disincentives benefit of designated critical habitat on conservation management practices, we to conservation (Wilcove et al. 1996, pp. OWMA would largely be redundant determine that the considerable benefits 1–14; Bean 2002, p. 2). Thus, we believe with the combined benefits of listing of exclusion outweigh the benefits of it is vital for flycatcher recovery to build and existing management. We believe inclusion in the critical habitat on continued conservation activities past, present, and future coordination designation. such as these with a proven partner, and with NDOW has provided and will After weighing the benefits of to provide positive incentives for other continue to provide sufficient education including 3.1 km (1.9 mi) of the Muddy non-Federal land managers who might regarding flycatcher habitat River within OWMA as flycatcher be considering implementing voluntary conservation needs on these lands, such critical habitat against the benefit of conservation activities but have that there would be minimal additional exclusion, we have concluded that the concerns about incurring incidental educational benefit or support from benefits of excluding this stream regulatory, administrative, or economic other laws and regulations from segment under the NDOW management impacts. Flycatcher habitat conservation designation of critical habitat. pursuant to section 4(b)(2) of the Act at Key Pittman is established through Therefore, the incremental conservation outweigh any benefits that would result planning documents, has a long record and regulatory benefits of designating from designating these areas as critical of success, and resulted in successful critical habitat within OWMA are habitat. minimal. flycatcher breeding sites. Exclusion Will Not Result in Extinction The benefits of excluding OWMA Because OWMA is a State-managed of the Species—Overton State Wildlife include some minimal reduction in wildlife area, the preservation of these Area administrative costs associated with lands for wildlife is not expected to engaging in section 7 consultations for change. NDOW has provided assurance We find that the exclusion of this critical habitat where NDOW may through conservation actions and Muddy River stream segment within receive Federal funding. The costs consultations that the habitat at OWMA OWMA will not lead to the extinction associated with section 7 consultation will be protected and enhanced. As of the flycatcher. Flycatcher habitat for critical habitat would include a previously described, NDOW’s existing protection and recovery is supported small increase in time and money spent management plan has effectively guided due to NDOW’s long-term management. in preparing the applicable documents the implementation of projects to ensure NDOW has a long track record of required during the Federal Aid funding the maintenance of flycatcher OWMA management that has resulted cycle. Administrative costs also include populations at OWMA. Commitments in the maintenance of flycatcher additional time spent in meetings and through NDOW’s implementation of territories and the development of preparing letters, and in the case of their OWMA Management Plan will additional habitat. Additionally, the biological assessments and informal and continue to foster the maintenance, long-term protection of flycatcher formal consultations, the development development, and survey of flycatcher habitat at OWMA is supported because of those portions of these documents habitat. Also, because the flycatcher the landscape will be preserved as open that specifically address the critical occurs on these lands with these space due to its inclusion within a habitat designation. The NDOW and management actions and conservation Wildlife Area. As a result of these FWS staff can, more appropriately, use in place, we anticipate that any formal conservation and management actions, these limited funds toward continuing section 7 consultations conducted on exclusion of the Muddy River will not to manage and improve NDOW land for critical habitat would only likely result result in extinction of the flycatcher.

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San Juan Management Unit stored behind Horseshoe Dam for a portions of the Verde River upstream Navajo Nation Management Plan period of 50 years. and downstream of Horseshoe Lake, The action area, as described in the flycatcher populations at Horseshoe Please see the end of this section for Horseshoe Bartlett HCP, prepared for Lake will help to meet the 50 territory a discussion about tribes from the Little SRP by ERO Resources Corporation and habitat-related recovery goals Colorado, San Juan, Verde, Upper Gila, (ERO and SRP 2008, entire), extends recommended in the Recovery Plan and Upper Rio Grande Management farther from the location of these dams (Service 2002, p. 85). Units that submitted Management Plans. to areas where the impacts of water The 50-year Horseshoe Bartlett HCP Southern Ute Tribe Management Plan storage and delivery may occur because conservation strategy focuses primarily of the impacts to other species caused on the protection and management of Please see the end of this section for by water regulation. Specific flycatcher- flycatcher habitat within the Horseshoe a discussion about tribes from the Little related impacts were only identified Lake conservation space through Colorado, San Juan, Verde, Upper Gila, within the high water mark of the modified dam operations; acquisition and Upper Rio Grande Management Horseshoe Lake conservation space and management of flycatcher habitat Units that submitted Management Plans. between 2,026 feet in elevation and outside of Horseshoe Lake; and the Verde Management Unit Horseshoe Dam. The area within implementation of measures to conserve Horseshoe Lake is Federal land Verde River water. SRP will modify dam Salt River Project Horseshoe and Bartlett managed by the USFS. A tri-party operations to make flycatcher habitat Dams HCP agreement between SRP, USFS, and available earlier in the nesting season Pursuant to the 1917 contract between USBR (1979, entire) establishes a and to maintain riparian vegetation at Salt River Project (SRP) and the United framework to maintain these water higher elevations within the States of America, the United States set storage areas for their intended purpose. conservation space whenever possible. aside land along the Verde River in Periodic changes in the level of the A 61-ha (150-ac) parcel of flycatcher Maricopa and Gila Counties, Arizona, lake water of the Horseshoe Lake habitat was acquired along the upper for the purpose of developing irrigation conservation space due to dam Gila River near Fort Thomas, outside of facilities for SRP. Bartlett Dam was operations and water storage can result the Verde Management Unit, and an constructed in the 1930s, and Horseshoe in the establishment and maintenance of additional 20 ha (50 ac) is being Dam was completed in 1945. The nesting flycatcher habitat. This is pursued for acquisition nearby. SRP’s United States turned over and vested in because flycatchers nest or otherwise water supply protection program will SRP the authority to care for, operate, use vegetation that grows in the dry focus on special projects to specifically and maintain all project facilities, of lakebed within the conservation space. benefit mitigation habitat such as which Horseshoe and Bartlett Dams Rising water levels or excessive drying ground water testing and modeling in became integral components. SRP is two can cause temporary losses and the vicinity of mitigation lands, entities: the Salt River Project unavailability of this nesting habitat. development and support of instream Agricultural Improvement and Power The amount and timing of water stored flow water rights, and research on the District, a political subdivision of the in Horseshoe Lake can vary widely from relationship between hydrology, habitat, state of Arizona; and the Salt River year-to-year because of the relatively and covered species under the HCP. Valley Water Users’ Association, a small amount of water storage space in The non-jeopardy conclusion private corporation. The District Horseshoe Lake, the erratic nature of provided in our intra-service section 7 provides electricity to nearly 934,000 precipitation and run-off, and the arid biological opinion, required in order to retail customers in the Phoenix area. It nature of the Sonoran Desert. issue the Horseshoe Bartlett HCP operates or participates in 11 major It is estimated that between 24 to 182 permit, was based upon the persistence power plants and numerous other ha (60 to 450 ac) of flycatcher nesting of varying degrees of occupied nesting generating stations, including thermal, habitat will occur annually within the flycatcher habitat within the Horseshoe nuclear, natural gas and hydroelectric high water mark of Horseshoe Lake over Lake conservation space (under full sources. SRP delivers an average of 1 the 50-year permit period of this HCP operation of Horseshoe and Bartlett million acre-feet of water each year for (ERO and SRP 2008, p. 120). The annual Dams with an HCP) that, along with use on more than 97,000 ha (240,000 average of flycatcher habitat estimated other areas within the Verde acres) or 970 square km (375 square mi) to occur within the lake is 105 ha (260 Management Unit, could reach the of shareholder lands, plus additional ac) (ERO and SRP 2008, p. 120). numerical (50 territories) and habitat- contract lands with water rights to the Since completion of the Horseshoe related goals established in the Recovery Salt and Verde rivers. Most of SRP’s and Bartlett Dams HCP, a Horseshoe Plan. Sections of the Verde River deliveries are to cities and urban Lake fill-event occurred and confirmed upstream and downstream of Horseshoe irrigation uses, supplying much of the our expectations about the continued Lake along the Verde River within the water for the Phoenix metropolitan persistence of flycatcher habitat and Tonto National Forest and farther population of more than 2.6 million territories. While Horseshoe Lake water upstream throughout the Verde Valley people. levels and flycatcher territory numbers also occur within the Verde We proposed a 9.6 km (6.0 mi) fluctuate, territories continue to persist; Management Unit and can contribute segment of the Verde River within the the number of territories at Horseshoe areas with flycatcher habitat toward conservation space of Horseshoe Lake as Lake ranged from 6 territories in 2003, reaching recovery goals (Service 2002, flycatcher critical habitat. to a high of 20 in 2005, and most p. 91). The Service issued an HCP permit to recently 10 in 2011 (SRP 2012, p. 16). SRP under section 10(a)(1)(B) of the Act Under more favorable low water Benefits of Inclusion—Horseshoe and in 2008 for the operation of Horseshoe storage lake conditions, the area Bartlett Dams HCP and Bartlett Dams. For the flycatcher between the existing pool and the high As discussed above under specifically, incidental take is water mark has supported the largest Application of Section 4(b)(2) of the Act, authorized as a result of the impacts to population of flycatchers known on the Federal agencies, in consultation with nesting habitat and breeding attempts Verde River (approximately 20 the Service, must ensure that their from raising and lowering of the water territories). Along with the other actions are not likely to jeopardize the

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continued existence of any listed impacts to flycatchers and flycatcher discussed by management agencies species or result in the destruction or habitat, including how these may affect while meeting to discuss to discuss the adverse modification of any designated flycatcher recovery within the Verde status of the flycatcher and current critical habitat of such species. The Management Unit. The conservation management issues occurring in difference in the outcomes of the strategies in the Horseshoe and Bartlett Roosevelt Lake and other nearby areas. jeopardy analysis and the adverse Dams HCP included habitat acquisition Consequently, we believe that the modification analysis represents the to account for each hectare (acre) of informational benefits have already regulatory benefit and costs of critical flycatcher habitat affected, management, occurred through past actions even habitat. and monitoring (see above). We though this area is not designated as The Horseshoe Lake area being concluded that Horseshoe Dam critical habitat. The importance of evaluated is known to be occupied by operations, while causing incidental Horseshoe Lake for conservation of the flycatchers and has undergone section 7 take of flycatchers periodically, will flycatcher, its importance to the Verde consultation under the jeopardy support the development of flycatcher Management Unit, and to the standard related to the Horseshoe and habitat over time, creating conditions population of flycatchers in the State of Bartlett Dams HCP and USFS actions. that, along with the other portions of the Arizona has already been realized by There may be some minor benefits by Verde River within the Management managing agencies, including the the designation of critical habitat within Unit, can be anticipated to reach goals public, State and local governments, Horseshoe Lake, primarily because of established in the Recovery Plan. and Federal agencies. the additional review required by USFS Because of the non-jeopardy analysis Benefits of Exclusion—Horseshoe and management of the lake bottom. completed in our section 7 consultation, Bartlett Dams HCP However, the USFS management has continued function of Horseshoe Lake to appropriately managed recreation, establish flycatcher habitat for recovery, The benefits of excluding the area access, land use, and wildfire that has and the comprehensive conservation within the high-water mark (below an conserved flycatcher habitat since the strategies implemented in the HCP, we elevation of 618 m, 2026 feet) of flycatcher was listed. The remote believe there is a low probability of Horseshoe Lake from being designated location of Horseshoe Lake makes it a mandatory elements (i.e., reasonable as critical habitat are considerable, and destination that is difficult for the and prudent alternatives) arising from include the conservation measures public to get to, and therefore reduces formal section 7 consultations that described above (dam operation its public popularity and potential land- include consideration of Horseshoe Dam modifications, land acquisition and use stressors. Within the conservation operations on designated flycatcher management, and water conservation space of Horseshoe Lake, there is no critical habitat at Horseshoe Lake. efforts) and those associated with cattle grazing, or road and camping Another important benefit of implementing conservation through developments; recreation activities at including lands in a critical habitat enhancing and developing partnerships. the lake is mostly focused on angling. designation is that the designation can The Horseshoe Bartlett HCP has and Additionally, because the purpose of the serve to educate landowners, agencies, will continue to help generate important conservation space of Horseshoe Lake is tribes, and the public regarding the status and trend information and to store water, it prevents significant potential conservation value of an area, conservation toward flycatcher land and water altering actions, such as and may help focus conservation efforts recovery. SRP will modify dam the development of permanent on areas of high conservation value for operations to make flycatcher habitat structures within this open space area. certain species. Any information about available earlier in the nesting season, We recently evaluated Tonto National the flycatcher that reaches a wide purchase and manage 81 ha (200 ac) of Forest’s Land Resource Plan (Service audience, including parties engaged in habitat for flycatcher recovery, and 2012, entire) and concluded that the conservation activities, is valuable. The implement water protection programs majority of the USFS’s standards and designation of critical habitat may also on the Verde River. In addition to those guidelines were found to benefit the strengthen or reinforce some Federal specific flycatcher conservation actions, flycatcher, and they would not laws such as the Clean Water Act. These the development and implementation of jeopardize the flycatcher or adversely laws analyze the potential for projects to this HCP provides regular monitoring of modify critical habitat. As a result, significantly affect the environment. flycatcher habitat, distribution, and because of the conservation associated Critical habitat may signal the presence abundance over the 50-year permit at with implementing the HCP, flycatcher of sensitive habitat that could otherwise Horseshoe Lake. SRP is currently territories occurring within the be missed in the review process for implementing innovative monitoring of Horseshoe Lake conservation space, and these other environmental laws. riparian habitat abundance and supporting USFS management, we We believe that there would be little flycatcher habitat suitability through believe these incremental benefits of a educational and informational benefit satellite image-based models (Hatten critical habitat designation are gained from including Horseshoe Lake and Paradzick 2003, entire; SRP 2012, minimized. Formal consultations will within the designation, because this pp. 13–14). likely result in only discretionary area is well known as an important area Because of the importance of the conservation recommendations due to for flycatcher management and Horseshoe Lake conservation space for existing appropriate management; recovery. For example, flycatcher water storage, there is no expectation therefore we believe there is a low habitat research has occurred at that any considerable development or probability of mandatory elements (i.e., Horseshoe Lake by Arizona State changes to the landscape would result reasonable and prudent alternatives) University and SRP; the Horseshoe in reducing the overall water storage arising from formal section 7 Bartlett HCP was developed over space, and therefore the overall ability consultations evaluating flycatcher multiple years and was completed in to develop riparian vegetation. critical habitat at Horseshoe Lake. 2008; and the Horseshoe Lake area was Horseshoe Dam operates in a way that We have evaluated Horseshoe Lake proposed as flycatcher critical habitat in continues moves water out of the Dam operations through 2004 and excluded in 2005. reservoir downstream to Bartlett Lake implementation of the Horseshoe and Additionally, since the early 2000s, and canals in order to continuously Bartlett Dams HCP, and considered Horseshoe Lake flycatchers have been create water storage conservation space,

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and therefore area for flycatcher habitat approach are built upon a foundation of biological opinion. However, because to grow. Constant lake levels, which are mutual trust and understanding. It takes the flycatcher occurs at Horseshoe Lake, not the desired condition at Horseshoe considerable time and effort to establish consultations evaluating jeopardy to the Lake for water storage or flycatcher this foundation of mutual trust and flycatcher would be expected to occur habitat development, will not create understanding, which is one reason it regardless of a critical habitat abundant flycatcher habitat. On the often takes several years to develop a designation, and those costs to perform contrary, dynamic lake levels that successful HCP. Excluding this area the additional analysis are not expected mimic the function of flooding on river from critical habitat would help to be significant. systems are essential for creating habitat promote and honor that trust by Benefits of Exclusion Outweigh the conditions needed by nesting providing greater certainty for Benefits of Inclusion—Horseshoe flycatchers within Horseshoe Lake. permittees that once appropriate Bartlett Dams HCP We determined in our intra-Service conservation measures have been agreed section 7 consultation jeopardy analysis to and consulted on for the flycatcher We have determined that the benefits for issuance of the Horseshoe Bartlett that additional consultation will not be of exclusion of the conservation space of HCP permit that dam operations would necessary. Horseshoe Lake below 618 m (2,026 not result in jeopardy to the flycatcher. Through the development of the feet) in elevation from the designation of One of the primary conservation values Horseshoe Bartlett HCP, we have flycatcher critical habitat on Federal of critical habitat is to help sustain generated additional partnerships with lands managed by the USFS, as existing flycatcher populations. The SRP and its stakeholders by developing identified in the Horseshoe Bartlett threshold for reaching destruction or collaborative conservation strategies for HCP, outweigh the benefits of inclusion adverse modification at Horseshoe Lake, the flycatcher and the habitat upon and will not result in extinction of the in an area where nesting flycatchers which it depends for breeding, flycatcher. This is because current dam occur, would typically result in the sheltering, foraging, migrating, and operations, management, and inability for the habitat to sustain dispersing. The strategies within the conservation efforts maintain the populations. Similarly, the threshold to HCP seek to achieve conservation goals physical or biological features necessary jeopardize the continued existence of for the flycatcher and its habitat, and to develop, maintain, recycle, and the species would also typically result thus can be of greater conservation protect flycatcher habitat essential to its in the inability of the habitat to sustain benefit than the designation of critical conservation. In making this finding, we local populations. Flycatcher habitat, which does not require specific have weighed the benefits of including populations have persisted within the actions. Continued cooperative relations these lands as critical habitat with an high water mark at Horseshoe Lake with SRP and its stakeholders is operative HCP and management by the throughout increases and decreases in expected to influence other future USFS, and without critical habitat. water storage. Ever since nesting partners and lead to greater The benefits of designating critical flycatchers were detected in 2002, conservation than would be achieved habitat for the flycatcher at Horseshoe flycatcher territories have persisted through multiple site-by-site, project-by- Lake are relatively small in comparison within the Horseshoe Lake and project, section 7 consultations. For to the benefits of exclusion. We find that additional territories have been detected example, soon after completing the including Horseshoe Lake would result along the Verde River. The expanding Roosevelt HCP, we partnered with SRP in very minimal, if any additional and contracting flycatcher habitat and its stakeholders to develop the benefits to the flycatcher, because within the lake combined with dynamic Horseshoe and Bartlett Dam HCP where Horseshoe Dam operations will habitat upstream and downstream along the flycatcher conservation was a key continue to foster the maintenance, the Verde River support the overall component. The benefits of excluding development, and necessary recycling of flycatcher population within the Verde lands within the Horseshoe and Bartlett habitat for the flycatcher in the long- Management Unit. Therefore, the Dam HCP area from critical habitat term due to the dynamic nature of water outcome of consultation under section 7 designation include recognizing the storage and delivery. USFS management of the Act on Horseshoe and Bartlett value of conservation benefits fosters the presence of flycatcher Dam operations with critical habitat associated with HCP actions; habitat, and there is virtually no risk of designated would not likely be encouraging actions that benefit changes to the landscape within the materially different compared to the multiple species; encouraging local Horseshoe Lake conservation space. As listing of the species alone. participation in development of new a result, we anticipate that formal Failure to exclude Horseshoe Lake HCPs; and facilitating the cooperative section 7 consultations conducted on could be a disincentive for other entities activities provided by the Service to critical habitat will only likely result in contemplating partnerships, as it would landowners, communities, and counties discretionary conservation be perceived as a way for the Service to in return for their voluntary adoption of recommendations. impose additional regulatory burdens the HCP. Concerns over perceived The benefits of excluding Horseshoe once conservation strategies have added regulation potentially imposed by Lake from inclusion as critical habitat already been agreed to. Private entities critical habitat could harm this are considerable and varied. Excluding are motivated to work with the Service collaborative relationship. Horseshoe Lake will continue to help collaboratively to develop voluntary A benefit of excluding Horseshoe foster development of future HCPs and HCPs because of the regulatory certainty Lake from critical habitat includes a strengthen our partnership with provided by an incidental take permit small reduction in administrative costs Horseshoe Bartlett HCP permittees and under section 10(a)(1)(B) of the Act with associated with engaging in the critical stakeholders. Excluding Horseshoe Lake the ‘‘No Surprises’’ assurances. This habitat portion of section 7 also eliminates regulatory uncertainty collaboration often provides greater consultations. Administrative costs associated with the permittees HCP and conservation benefits than could be include time spent in meetings, the operation of Horseshoe and Bartlett achieved through strictly regulatory preparing letters and biological Dams for water storage and flood approaches, such as critical habitat assessments, and in the case of formal control. The conservation benefits of designation. The conservation benefits consultations, the development of the implementing the Horseshoe and resulting from this collaborative critical habitat component of a Bartlett Dam HCP are considerable and

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include acquisition and management of permit that operations would not result sources. SRP delivers an average of 1 flycatcher habitat, modifications of in jeopardy. We also determined that million acre-feet (AF) of water each year Horseshoe Dam operations to facilitate while Horseshoe Dam operations will for use on more than 240,000 acres or the persistence of flycatcher habitat, and cause incidental take of flycatchers and 375 square miles of shareholder lands, long-term monitoring of flycatcher cause fluctuations in habitat abundance plus additional contract lands with habitat and territories. These and quality, reservoir operations will water rights to the Salt and Verde rivers. conservation measures are substantial also create a dynamic environment that Most of SRP’s deliveries are to cities and and will result in greater flycatcher fosters the long-term persistence of urban irrigation uses, supplying much conservation benefits than what could habitat. It was estimated that during the of the water for the Phoenix be accomplished from a project-by- life of the permit, an annual average of metropolitan population of more than project evaluation through the 105 ha (260 ac) flycatcher habitat would 2.6 million. The Record of Decision for incremental benefits of a critical habitat persist, ranging from 24 to 182 ha (60 to the HCP was dated February 27, 2003. designation. Excluding Horseshoe Lake 450 ac). The number of territories could The associated incidental take permit will also eliminate some additional fluctuate greatly, but considering the authorizes incidental take of the administrative effort and cost during the 4.5-ha (11-ac) neighborhood used during flycatcher caused by the raising and consultation process pursuant to section the HCP development to describe an lowering of the water stored by 7 of the Act. area used per flycatcher territory (ERO Roosevelt Dam for a period of 50 years. After weighing the benefits of and SRP 2008, p. 111), about 20 The action area, as described in SRPs including Horseshoe Lake as flycatcher territories could be expected to persist Roosevelt Dam HCP (SRP 2002, p. ES– critical habitat against the benefit of about 50 percent of the time over the 1), is the perimeter of Roosevelt Lake’s exclusion, we have concluded that the HCP permit period (ERO and SRP 2008, high water mark below the 2,151 foot benefits of excluding the conservation p. 121). USFS management has elevation point. The land within the space of Horseshoe Lake below an continued to foster the maintenance and Roosevelt Lake perimeter is Federal elevation 618 m (2026 feet), underneath development of flycatcher habitat land and managed by the USFS. the coverage of the Horseshoe Bartlett through land management actions that The Roosevelt Lake nesting flycatcher HCP and with the support of USFS protect habitat and reduce habitat population, depending on the year, can management, outweigh those that would stressors. Our recent evaluation of the be one of the largest across the result from designating this area as Tonto National Forest’s Land subspecies range (approximately 150 critical habitat. We have therefore Management Resource Plan concluded territories, plus an unknown number of excluded these lands from this final that the majority of USFS standards and unmated floating/non-breeding critical habitat designation pursuant to guidelines would benefit the flycatcher flycatchers and fledglings). During lower water years, by moving water into section 4(b)(2) of the Act. and their implementation would not As mentioned below in our evaluation downstream lakes, Roosevelt Dam can jeopardize the flycatcher or adversely of SRP’s Roosevelt HCP, SRP requested expose broad areas of flat gradient modify critical habitat. that their flycatcher mitigation property floodplain where riparian vegetation along the upper Gila River purchased as Yavapai-Apache Management Plan can grow at both the Salt River and part of the measures to implement the Please see the end of this section for Tonto Creek inflows. The areas at each Horseshoe Bartlett Dams HCP be a discussion about tribes from the Little end of the lake are estimated to be able designated as critical habitat. The Colorado, San Juan, Verde, Upper Gila, to establish as much as 506 ha (1,250 ac) mitigation property is not located and Upper Rio Grande Management of occupied flycatcher nesting habitat within the Horseshoe lakebed, and may Units that submitted Management Plans. within its high water mark. benefit from section 7 consultation. The cycles of germination, growth, Therefore, based upon the comments Roosevelt Management Unit maintenance, and loss of flycatcher received from SRP and the likely benefit Salt River Project Roosevelt Lake HCP habitat within the perimeter of of future section 7 consultation, the Roosevelt Lake are dependent on how Secretary exercises his discretion under The Roosevelt Dam HCP was and when the lake recedes due to the section 4(b)(2) of the Act, and permitted to SRP under section amount of water in-flow, and determines that the mitigation 10(a)(1)(B) of the Act in 2003, for the subsequent storage capacity and properties acquired by SRP along the operation of Roosevelt Dam in Gila and delivery needs caused by Roosevelt Dam Gila River are included in this final Maricopa Counties, Arizona. Pursuant operations. The process of flycatcher designation as flycatcher critical habitat. to the 1917 contract between SRP and habitat inundation and drying through the United States of America, the United raising and lowering of lake levels can Exclusion Will Not Result in Extinction States turned over and vested in SRP the be more exaggerated than the dynamic of the Species—Horseshoe and Bartlett authority to care for, operate, and flooding that occurs on free-flowing Dams HCP maintain all project facilities, of which streams, yet those dynamic processes We find that the exclusion of the Roosevelt Dam is an integral within the lake’s high water mark mimic conservation space of Horseshoe Lake component. SRP is two entities: The those that occur on a river and are will not lead to the extinction of the Salt River Project Agricultural important to develop and maintain flycatcher, nor hinder its recovery Improvement and Power District, a expansive flycatcher habitat and because Horseshoe and Bartlett Dam political subdivision of the State of populations. Even in the expected high- operations combined with the Arizona; and the Salt River Valley Water water years, some high quality riparian preservation of open space within the Users’ Association, a private habitat would persist at Roosevelt Lake lake and USFS land management will corporation. The District provides providing flycatcher nesting ensure the long-term persistence and electricity to nearly 934,000 retail opportunities. protection of flycatcher habitat at customers in the Phoenix area. It The 50-year Roosevelt Dam HCP Horseshoe Lake. We determined in our operates or participates in 11 major conservation strategy focuses primarily intra-Service section 7 biological power plants and numerous other on: (1) The acquisition and management opinion for the issuance of the generating stations, including thermal, of flycatcher habitat outside of Horseshoe and Bartlett Dams HCP nuclear, natural gas, and hydroelectric Roosevelt Lake; (2) the protection of

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existing habitat within the Roosevelt nesting habitat) would be present within establishes a framework to maintain Lake conservation space; and (3) the the Roosevelt Lake conservation space these water storage areas for their creation of riparian habitat adjacent to during the life of the permit, which intended purpose. Roosevelt Lake. Outside of the Roosevelt could support 45 to 90 flycatcher During completion of the 2005 Management Unit, a minimum of 607 ha territories (Service 2003, p. 51). Even in flycatcher critical habitat rule, SRP (1,500 ac) of flycatcher habitat is to be a worse case flood event, causing the requested that all of their flycatcher acquired and managed by SRP on the lake to fill to capacity, 15 to 30 mitigation properties purchased before San Pedro, Verde, and Gila Rivers, along flycatcher territories are expected to the publication of our final 2005 critical with implementation of conservation persist. Under more favorable habitat habitat be designated as critical habitat. measures to protect up to an additional conditions, the area between the SRP has made the same request during 304 ha (750 ac) of flycatcher habitat. existing pool and the high water mark this revision of critical habitat. Flycatcher habitat was to be created and could support one of the largest nesting Benefits of Inclusion—Roosevelt Lake maintained at Roosevelt Lake (outside of flycatcher populations throughout the the impacts of water storage) at the subspecies’ range. Adjacent streams As discussed above under adjacent Rock House Farm. Also, outside of the high water mark (Tonto Application of Section 4(b)(2) of the Act, because the USFS has management Creek, Salt River, Cherry Creek, Rye Federal agencies, in consultation with authority over dry land within the Creek, etc.) also occur within the the Service, must ensure that their lakebed, SRP would fund a USFS Forest Roosevelt Management Unit and actions are not likely to jeopardize the Protection Officer to patrol and improve contribute areas with flycatcher habitat continued existence of any listed protection of flycatcher habitat in the and territories toward reaching recovery species or result in the destruction or Roosevelt lakebed from adverse goals. adverse modification of any designated activities such as fire ignition from When the Roosevelt Dam HCP was critical habitat of such species. The human neglect, improper vehicle use, completed in 2003, lake levels were difference in the outcomes of the and other unauthorized actions that near their lowest and flycatcher jeopardy analysis and the adverse could harm habitat. As a result of these populations were most abundant. Since modification analysis represents the conservation commitments, the HCP completion of the HCP, a lake-fill event regulatory benefit and costs of critical provides an additional level of occurred and confirmed our habitat. protection of flycatcher habitat at expectations about the persistence of The Roosevelt Lake area is known to Roosevelt Lake that would not flycatcher habitat and territories. In be occupied by flycatchers and has otherwise be available. 2005, water levels rose to nearly full undergone section 7 consultation under As identified in the HCP, flycatcher capacity, which caused reductions and the jeopardy standard related to the properties have been acquired along the changes in the distribution and Roosevelt Lake HCP and USFS actions. lower San Pedro and Gila River (Middle abundance of flycatcher populations in There may be some minor benefits from Gila/San Pedro Management Unit) and the Roosevelt Lake Management Unit the designation of critical habitat within along the Verde River (Verde consistent with the habitat estimations Roosevelt Lake, primarily because it Management Unit) (SRP 2012a, pp. 17– and conclusions developed in the would require the Service and USFS to 20). SRP has surpassed its required 910 Roosevelt HCP. During the 2011 perform additional review of USFS ha-credits (2,250 ac) to date, by overall breeding, season SRP (2012a, pp. 7–8) management within the exposed portion accruing 1,049 ha-credits (2,591 ac). ran the multi-scaled, satellite-image- of the lake bottom through a critical They have acquired 745 ha (1,842 ac) of based flycatcher habitat suitability habitat consultation under section 7 of riparian habitat and 177 ha-credits (429 model (Hatten and Paradzick 2003, the Act. These USFS management ac) of buffer lands and water rights. entire) and estimated that 34 ha (85 ac) actions are typically associated with They have also developed 8 ha (20 ac) of potentially suitable flycatcher recreation management and access, as of flycatcher habitat at Rock House Farm breeding habitat existed below the well as resource use. However, the types (which holds flycatcher territories) and Roosevelt Lake high water mark. These and extent of USFS actions within the acquired 121 ha-credits (300 ac) from changes in water storage resulted in a Roosevelt Lake conservation space are funding the USFS employee to help on- minimum of 26 flycatcher territories somewhat limited because the purpose the-ground management Roosevelt Lake supported within the Roosevelt Lake of the conservation space of Roosevelt flycatchers (SRP 2012a, pp. 13–20). high water mark in 2011, and additional Lake is to store water. Additionally, The Service completed a section 7 territories on the Tonto Arm of because of the persistence of abundant consultation under the Act in order to Roosevelt Lake that are likely flycatcher territories at Roosevelt Lake, issue the Roosevelt Section 10 HCP influenced by the elevated water levels USFS management has appropriately permit. The Service’s conclusion that (SRP 2012a, p. 9). managed recreation, access, land use, issuance of the section 10 permit for the Once water recedes and uncovers the and wildfire in a manner that has HCP would not jeopardize the species ground where flycatcher habitat can conserved flycatcher habitat since was based upon the Service’s grow, the USFS is the primary land listing. For example, the Tonto National determination that varying degrees of manager. Since the listing of the Forest implements seasonal access occupied nesting flycatcher habitat flycatcher, the Tonto National Forest restrictions surrounding flycatcher within the Roosevelt Lake conservation has managed resource use, wildfire, and habitat at Roosevelt Lake to reduce space (under full operation of Roosevelt recreation, activities that can impact habitat stressors such as wildfire, Dam with an HCP) would persist, and flycatcher habitat, through improved trampling, and unauthorized road use when combined with other areas within fencing and access management. and creation. We recently evaluated the Roosevelt Lake Management Unit, Through the Roosevelt HCP, the USFS Tonto National Forest’s Land Resource could reach the numerical (50 Protection Officer adds additional Plan (Service 2012, pp. 29–44) and territories) and habitat-related goals management to help monitor and concluded that the majority of the established in the Recovery Plan. An manage authorized and unauthorized USFS’s standards and guidelines were average of 121 to 162 ha (300 to 400 ac) actions that could affect flycatcher found to benefit the flycatcher and they of flycatcher habitat (thus about 60 to 81 habitat. A tri-party agreement between would not jeopardize the flycatcher or ha, 150 to 200 ac of occupied flycatcher SRP, USFS, and USBR (1979, entire) adversely modify critical habitat. For

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these reasons and because formal We believe that there would be little is also currently implementing consultations will likely result in only educational and informational benefit innovative monitoring of riparian discretionary conservation gained from including Roosevelt Lake habitat abundance and flycatcher recommendations due to existing within the designation because this area habitat suitability through satellite appropriate management, we believe is well known as an important area for image-based models (Hatten and there is a low probability of mandatory flycatcher management and recovery. Paradzick 2003, entire; SRP 2012a, pp. elements (i.e., reasonable and prudent For example, extensive flycatcher 7–8). alternatives) arising from formal section research has occurred at Roosevelt Lake Because of the importance of the 7 consultations that include through much of the late 1990s and Roosevelt Lake conservation space for consideration of designated critical early 2000s by USGS, USBR, and AGFD; water storage, there is no expectation habitat for the flycatcher at Roosevelt the Roosevelt Dam HCP was developed that any considerable development or Lake. in 2003; periodic news articles were changes to the landscape would result We have evaluated Roosevelt Lake published on the development of the in reducing the overall water storage Dam operations through Roosevelt Dam HCP; and the Roosevelt space, and therefore the overall ability implementation of the Roosevelt HCP, Lake area was proposed as flycatcher to develop riparian vegetation. and considered impacts to flycatchers critical habitat in 2004 and excluded in Roosevelt Dam operates in a way that and flycatcher habitat, including how 2005. Additionally, since the mid- continues to move water out of the these may affect flycatcher recovery 1990s, SRP, USFS, USBR, AGFD, and reservoir to downstream lakes and within the Roosevelt Management Unit. the Service have met annually to canals in order to continuously create The conservation strategies in the discuss the status of the flycatcher and water storage conservation space at Roosevelt HCP included considerable current management issues occurring in Roosevelt Lake, and therefore area for habitat acquisition to account for each the Roosevelt Lake area. Consequently, riparian vegetation (i.e., flycatcher hectare (acre) of flycatcher habitat we believe that the informational habitat) to grow. Constant lake levels affected, management, and monitoring benefits have already occurred through would not have resulted in the creation (see above). We concluded that past actions even though this area is not of the hundreds of acres of flycatcher Roosevelt Dam operations, while designated as critical habitat. The habitat between 1995 and 2004 (Ellis et causing incidental take of flycatchers importance of Roosevelt Lake for al. 2008, p. i). On the contrary, dynamic periodically, will support the conservation of the flycatcher, and its lake levels, similar to river systems, are important for the creation and development of flycatcher habitat over importance to the Roosevelt maintenance of abundant flycatcher time, creating conditions that, along Management Unit and to the population of flycatchers in the State of Arizona has habitat at this location. with the other streams within the We determined in our intra-Service Management Unit, can be anticipated to already been realized by managing agencies, including the public, State and section 7 consultation jeopardy analysis reach goals established in the Recovery for issuance of the Roosevelt Dam HCP Plan. Because of the non-jeopardy local governments, and Federal agencies. permit that dam operations would not analysis completed in our section 7 result in jeopardy to the flycatcher. One consultation, the continued function of Benefits of Exclusion—Roosevelt Lake of the primary conservation values of Roosevelt Lake to establish flycatcher The benefits of excluding the area critical habitat is to help sustain existing habitat for recovery, and the within the high-water mark (below an flycatcher populations. The threshold comprehensive conservation strategies elevation of 655 m, 2150 feet) of for reaching destruction or adverse implemented in the HCP, we believe Roosevelt Dam from being designated as modification at Roosevelt Lake, in an there is a low probability of mandatory critical habitat are considerable, and area where so many flycatchers occur, elements (i.e., reasonable and prudent include the conservation measures would typically result in the inability alternatives) arising from formal section described above (land acquisition and for the habitat to sustain populations for 7 consultations that include management, and habitat development) recovery. Similarly, the threshold to consideration of Roosevelt Dam and those associated with implementing jeopardize the continued existence of operations on designated flycatcher conservation through enhancing and the species would also typically result critical habitat at Roosevelt Lake. developing partnerships. in the inability of the habitat to sustain Another important benefit of The implementation of the Roosevelt local populations. Flycatcher including lands in a critical habitat HCP has and will continue to help populations have persisted within the designation is that the designation can generate important status and trend high water mark at Roosevelt Lake serve to educate landowners, agencies, information and conservation for throughout increases and decreases in tribes, and the public regarding the flycatcher recovery. As described above, water storage and have subsequently potential conservation value of an area, SRP has surpassed its required 910 ha- expanded along streams adjacent to and may help focus conservation efforts credits (2,250 ac) to date, by accruing Roosevelt Lake (Salt River, Tonto Creek, on areas of high conservation value for 745 ha (1,842 ac) of riparian habitat and Pinal Creek, Cherry Creek, Rye Creek). certain species. Any information about 174 ha-credits (429 ac) of buffer lands In 2011, the Roosevelt Lake the flycatcher that reaches a wide and water rights. They have also Management Unit supported at least 100 audience, including parties engaged in developed 8 ha (20 ac) of flycatcher territories on these streams. The conservation activities, is valuable. The habitat at Rock House Farm and funded expanding and contracting flycatcher designation of critical habitat may also a USFS employee to help on-the-ground habitat within the lake combined with strengthen or reinforce some Federal management of Roosevelt Lake dynamic habitat along adjacent streams laws such as the Clean Water Act. These flycatchers (SRP 2012a, pp.15–16). In support the overall flycatcher laws analyze the potential for projects to addition to these specific flycatcher population within the Roosevelt significantly affect the environment. conservation actions, the development Management Unit and the Recovery Critical habitat may signal the presence and implementation of this HCP Plan’s 50-territory goal. Therefore, of sensitive habitat that could otherwise provides regular monitoring of because Roosevelt Dam operations be missed in the review process for flycatcher habitat, distribution, and mimic the stream functions that support these other environmental laws. abundance over the 50-year permit. SRP flycatcher habitat, and because of the

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implementation of Roosevelt HCP to develop the Horseshoe and Bartlett will continue to foster the maintenance, conservation actions and management Dam HCP where the flycatcher development, and necessary recycling of support from the USFS, the outcome of conservation was a key component. The habitat for the flycatcher in the long consultation under section 7 of the Act benefits of excluding lands within the term due to the dynamic nature of water with the Roosevelt Lake conservation Roosevelt Lake HCP area from critical storage and delivery. USFS management space with critical habitat designated habitat designation include recognizing fosters the maintenance and would not likely be materially different the value of conservation benefits development of flycatcher habitat, and compared to the listing of the species associated with HCP actions; there is virtually no risk of changes to alone. encouraging actions that benefit the landscape within the Roosevelt Lake Failure to exclude Roosevelt Lake multiple species; encouraging local conservation space. As a result, we could be a disincentive for other entities participation in development of new anticipate that formal section 7 contemplating partnerships, as it would HCPs; and facilitating the cooperative consultations conducted on critical be perceived as a way for the Service to activities provided by the Service to habitat would only likely result in impose additional regulatory burdens landowners, communities, and counties discretionary conservation once conservation strategies have in return for their voluntary adoption of recommendations. already been agreed to. Private entities the HCP. Concerns over perceived The benefits of excluding Roosevelt are motivated to work with the Service added regulation potentially imposed by Lake from inclusion as critical habitat collaboratively to develop voluntary critical habitat could harm this are considerable. Excluding Roosevelt HCPs because of the regulatory certainty collaborative relationship. Lake would continue to help foster provided by an incidental take permit A benefit of excluding Roosevelt Lake development of future HCPs and under section 10(a)(1)(B) of the Act with from critical habitat includes a small strengthen our partnership with the ‘‘No Surprises’’ assurances. This reduction in administrative costs Roosevelt HCP permittees and collaboration often provides greater associated with engaging in the critical stakeholders. Excluding Roosevelt Lake conservation benefits than could be habitat portion of section 7 also eliminates regulatory uncertainty achieved through strictly regulatory consultations. Administrative costs associated with the permittees’ HCP and approaches, such as critical habitat include time spent in meetings, the operation of Roosevelt Dam for designation. The conservation benefits preparing letters and biological water storage and flood control. The resulting from this collaborative assessments, and in the case of formal conservation benefits of implementing approach are built upon a foundation of consultations, the development of the the Roosevelt HCP are considerable and mutual trust and understanding. It takes critical habitat component of a include significant acquisition and considerable time and effort to establish biological opinion. However, because management of flycatcher habitat, this foundation of mutual trust and the flycatcher occurs at Roosevelt Lake, creation of flycatcher habitat adjacent to understanding, which is one reason it consultations are expected to occur Roosevelt Lake, on-the-ground often takes several years to develop a regardless of a critical habitat protection of flycatcher habitat, and successful HCP. Excluding this area designation, and those costs to perform long-term monitoring of flycatcher from critical habitat will help promote the additional analysis are not expected habitat and territories. These and honor that trust by providing to be significant. conservation measures are substantial greater certainty for permittees that once and will result in greater flycatcher Benefits of Exclusion Outweigh the appropriate conservation measures have conservation benefits than what could Benefits of Inclusion—Roosevelt Lake been agreed to and consulted on for the be accomplished from a project-by- flycatcher that additional consultation We have determined that the benefits project evaluation through the will not be necessary. of exclusion of the conservation space of incremental benefits of a critical habitat Through the development of the Roosevelt Lake below 655 m (2,151 feet) designation. Also, excluding Roosevelt Roosevelt Dam HCP, we have generated in elevation from the designation of Lake will eliminate some additional, but additional partnerships with SRP and flycatcher critical habitat on Federal minimal, administrative effort and cost its stakeholders by developing land managed by the USFS, as during the consultation process collaborative conservation strategies for identified in the Roosevelt Dam HCP, pursuant to section 7 of the Act. the flycatcher and the habitat upon outweigh the benefits of inclusion, and After weighing the benefits of which it depends for breeding, will not result in extinction of the including Roosevelt Lake as flycatcher sheltering, foraging, migrating, and flycatcher because current dam critical habitat against the benefit of dispersing. The strategies within the operations, management, and exclusion, we have concluded that the Roosevelt HCP seek to achieve conservation efforts maintain the benefits of excluding the conservation conservation goals for the flycatcher and physical or biological features necessary space of Roosevelt Lake below an its habitat, and will achieve greater to develop, maintain, recycle, and elevation 655 m (2151 feet), underneath conservation benefit than the protect flycatcher habitat essential to its the coverage of the Roosevelt HCP and designation of critical habitat and conservation. In making this finding, we with the support of USFS management, multiple site-by-site, project-by-project, have weighed the benefits of including outweigh those that would result from section 7 consultations, which is these lands as critical habitat with an designating this area as critical habitat. unlikely to require specific actions. operative HCP and management by the We have therefore excluded these lands Continued cooperative relations with USFS, and the same situation without from the final critical habitat SRP and its stakeholders are expected to critical habitat. designation pursuant to section 4(b)(2) influence other future partners. Our The benefits of designating critical of the Act. experience has demonstrated that habitat for the flycatcher at Roosevelt As mentioned above, during successful completion of one HCP has Lake are relatively small in comparison development of the 2005 flycatcher resulted in the development of other to the benefits of exclusion. We find that critical habitat designation, SRP conservation efforts and HCPs with including Roosevelt Lake as critical requested that all of their flycatcher other landowners. For example, soon habitat would result in very minimal, if mitigation properties purchased before after completing the Roosevelt HCP, we any, additional benefits to the the publication of our final 2005 critical partnered with SRP and its stakeholders flycatcher. Roosevelt Dam operations habitat designation, be designated as

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critical habitat. They have made the County, Arizona. Along this Pinal Creek total riparian vegetation volume within same request on mitigation properties in segment, FMC is actively implementing the mitigation area (FMC 2012, p. 11). connection with this revision. The the Water Quality Assurance Revolving Soon after implementing these mitigation properties are not located Fund (WQARF) Remedial Action management actions and development within the Roosevelt lakebed, and may Program required by the Arizona of improved riparian habitat quality, benefit from section 7 consultation on Department of Environmental Quality territorial flycatchers were attracted to their management. Therefore, based Consent Order issued in April 1998. the site and have persisted from 2004 upon the comments received from SRP The primary purpose of this Remedial through 2011 (2 to 8 territories and the likely benefit of future section Action Program is the monitoring, annually) (FMC 2012, p.14). 7 consultation, the Secretary exercises extraction, and treatment of FMC submitted a flycatcher his discretion under section 4(b)(2) of contaminated Pinal Creek groundwater. management plan for the proposed the Act, and determines that the Groundwater contamination near the segment of Pinal Creek (FMC 2012, mitigation properties acquired by SRP Towns of Globe and Miami was first entire), committing to continue along the San Pedro, Gila, and Verde discovered in the 1930s. The first area- implementing the land management Rivers are included in this final wide investigation of groundwater and actions initiated through the Corps designation as flycatcher critical habitat. surface water contamination was permit that have resulted in the initiated in 1979, and completed in improved abundance, distribution, and Exclusion Will Not Result in Extinction 1981. In 1989, the site was listed on the quality of riparian habitat for nesting of the Species—Roosevelt Lake WQARF Priority List by the State of flycatchers for the life of the water We find that the exclusion of the Arizona. Also in 1989, the Pinal Creek remediation project. The life of the conservation space of Roosevelt Lake Group (an alliance of local mining water remediation project and will not lead to the extinction of the companies) was formed to conduct the accompanying land management actions flycatcher, nor hinder its recovery remedial investigations and begin are estimated to occur for at least the because Roosevelt Dam operations remedial actions in 1990. A next 10 years and possibly longer (Tress combined with the preservation of open groundwater feasibility study and J. 2012, pers. comm.). FMC will space within the lake and USFS land recommended remedial action plan continue to eliminate cattle access to the management will ensure the long-term were completed by 1997. riparian area during the spring and fall persistence and protection of flycatcher The remedial action plan proposed growing season in order to reduce the habitat at Roosevelt Lake. We groundwater extraction at two locations grazing pressure on flycatcher habitat. determined in our intra-Service section to provide upstream and downstream Also, exotic plant management will 7 biological opinion for the issuance of containment of the contamination reduce the occurrence of flammable the Roosevelt HCP permit that plume. In November 1999, the Lower plants and reduce the potential impacts operations would not result in jeopardy. Pinal Creek Treatment Plant was of wildfire within the riparian area. We determined that, while Roosevelt completed, and contaminated FMC will implement and enforce a strict Dam operations will cause incidental groundwater extraction at the leading ‘‘no trespassing’’ policy for Pinal Creek. take due to operations that cause edge of the plume began. In January Fencing and maintenance of fencing fluctuations in habitat abundance and 2001, a groundwater barrier was will minimize trespass recreational quality, reservoir operations also create constructed across lower Pinal Creek to pressure on riparian vegetation. FMC a dynamic environment that fosters the provide downstream containment of the will also monitor vegetation and long-term persistence of habitat. It was plume. Full-scale groundwater conduct flycatcher surveys within this estimated that during the life of the extraction for treatment began just above Pinal Creek segment. permit, an average amount of habitat to the barrier. In June 2001, a second support 45 to 90 flycatcher territories groundwater well field was constructed Benefits of Inclusion—Pinal Creek would be present throughout the life of to provide upstream containment of the As discussed above under the 50-year permit and even in a worst contaminated groundwater plume, and a Application of Section 4(b)(2) of the Act, case flood event with maximum water second treatment plant (the Diamond H Federal agencies, in consultation with storage, 15 to 30 territories could Treatment Plant) was constructed to the Service, must ensure that their persist. USFS management has treat the water captured at Kiser Basin. actions are not likely to jeopardize the continued to foster the maintenance and The Corps authorized the discharge of continued existence of any listed development of flycatcher habitat fill material to waters of the United species or result in the destruction or through land management actions that States that was required to implement adverse modification of any designated reduce habitat stressors. Our recent remediation activities using Nationwide critical habitat of such species. The evaluation of the Tonto National Permit (NWP) 38. The Corps’ difference in the outcomes of the Forest’s Land Management Resource authorization to use NWP 38 for jeopardy analysis and the adverse Plan concluded that the majority of remediation activities at Pinal Creek modification analysis represents the USFS standards and guidelines would included project specific requirements regulatory benefit and costs of critical benefit the flycatcher and their to implement a mitigation and habitat. implementation would not jeopardize monitoring plan. The Corps permits Pinal Creek is known to be occupied the flycatcher or adversely modify required control of exotic riparian plant by flycatchers and therefore, if a Federal critical habitat. species and improved cattle action or permitting occurs, there is a management in order to foster the catalyst for evaluation under section 7 Freeport McMoRan Pinal Creek development of native riparian habitat. of the Act. It is possible that in the Management Plan As a result of the water remediation future, federal funding or permitting FMC, a private mining company, and land management actions could occur on this privately owned and which acquired Phelps Dodge associated with the Corps’ permit, managed segment of Pinal Creek where Corporation in 2007, has ownership and riparian habitat flourished in quality a critical habitat designation may management responsibility for the and quantity. From 1999 to 2007, these benefit flycatcher habitat. For example, segment of Pinal Creek proposed as water and land management actions a Corps permit was needed to flycatcher critical habitat in Gila resulted in an 88 percent increase in implement FMC’s remediation program

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within Pinal Creek. At that time, Pinal technical recovery team. The and habitat monitoring detect Creek was not known to be a stream implementation of the Clean Water Act significant positive or negative changes where flycatcher territories could occur was a catalyst in generating flycatcher in the numbers of nesting flycatchers or and the riparian vegetation was not habitat along Pinal Creek. But now, in key habitat parameters, they will dense or abundant enough to expect because of FMC’s existing conservation confer with the Service regarding the territorial flycatchers to be present. awareness and implementation of impacts of such changes and will adopt Implementation of the habitat conservation actions, we believe there is alternative conservation measures to management conditions included in the little educational benefit or support for promote flycatcher habitat. Exclusion of Corps permit was a significant other environmental laws and this area from the designation will contributing factor in causing flycatcher regulations attributable to flycatcher maintain and strengthen the partnership habitat to become established. However, critical habitat beyond those achieved between the Service and FMC. now that flycatchers are known to occur from listing the species under the Act Our collaborative relationship with along Pinal Creek, the benefits of a and FMC’s continued conservation FMC makes a difference in our critical habitat designation are reduced efforts. partnership with the numerous to the possible incremental benefit of Overall, the benefits of designating stakeholders involved with flycatcher critical habitat because the designation flycatcher critical habitat within FMC’s management and recovery and would no longer be the sole catalyst for privately owned lands along Pinal Creek influences our ability to form initiating section 7 consultation. We do are minimal. FMC and other managing partnerships with others. Concerns over not have any previous records of section agencies are aware of the occurrence of perceived added regulation potentially 7 consultations addressing flycatchers the flycatcher along Pinal Creek; imposed by critical habitat could harm and their habitat along Pinal Creek. therefore the educational benefits and this collaborative relationship. support for implementation of other Also, because this stream segment is Because so many important areas with environmental laws and regulations privately owned and is primarily being flycatcher habitat occur on private from a critical habitat designation is managed for environmental remediation lands, collaborative relationships with minimized. Because this land is and habitat improvement, we do not private landowners will be essential in privately owned and is the target of anticipate future Federal actions to order to recover the flycatcher. The impact the current remediation action or environmental clean-up and habitat flycatcher and its habitat are expected to habitat improvements associated with management improvements, there is benefit substantially from voluntary the Corps permit and continued little likelihood of Federal actions landowner management actions that flycatcher management actions. Because occurring and interfering with these implement appropriate and effective of the lack of past section 7 efforts. Additionally, FMC has a long- conservation strategies. The consultations within this Pinal Creek term commitment to environmental conservation benefits of critical habitat segment of privately owned land, the clean-up and land management actions are primarily regulatory or prohibitive reduced likelihood of future federal that helped create habitat to support in nature. Where consistent with the actions altering the current environment flycatcher territories. Therefore, the discretion provided by the Act, the clean-up and management of this stream incremental benefits of a flycatcher segment, the presence of flycatcher critical habitat designation along Pinal Service believes it is necessary to territories, and the commitment to Creek would be minimal. implement policies that provide positive incentives to private continue implementing land Benefits of Exclusion—Pinal Creek management actions that maintain landowners to voluntarily conserve flycatcher habitat, the benefits of a A considerable benefit from excluding natural resources and that remove or critical habitat designation on this lower FMC-owned Pinal Creek lands as reduce disincentives to conservation segment of Pinal Creek are minimized. flycatcher critical habitat is the (Wilcove et al. 1996, 1–15; Bean 2002, Another important benefit of maintenance and strengthening of 1–7). Thus, we believe it is essential for including lands in a critical habitat ongoing conservation partnerships. FMC the flycatcher recovery to build on designation is that it can serve to has demonstrated a partnership with the continued conservation activities such educate landowners, agencies, tribes, Service by becoming a conservation as these with a proven partner, and to and the public regarding the potential partner in the development and provide positive incentives for other conservation value of an area, and may implementation of the Recovery Plan, private landowners who might be help focus conservation efforts on areas and by solidifying their conservation considering implementing voluntary of high value for certain species. Any actions in management plans submitted conservation activities, but who have information about the flycatcher that to us for the flycatcher along the upper concerns about incurring incidental reaches a wide audience, including Gila River at the U-Bar Ranch in New regulatory or economic impacts. parties engaged in conservation Mexico (see below) and for the Weighing Benefits of Exclusion Against activities, is valuable. The designation spikedace and loach minnow (2007 and Benefits of Inclusion—Pinal Creek of critical habitat may also strengthen or 2011). They have also have reinforce some Federal laws such as the demonstrated a willingness to conserve We have determined that the benefits Clean Water Act. These laws analyze the flycatchers and the flycatcher habitat at of exclusion of Pinal Creek on private potential for projects to significantly Pinal Creek and to partner with us by lands managed by FMC, with the affect the environment. Critical habitat exploring the initial stages of a habitat implementation of their management may signal the presence of sensitive conservation plan. plan, outweigh the benefits of inclusion, habitat that could otherwise be missed The success of FMC’s management is and will not result in extinction of the in the review process for these other demonstrated in the development of flycatcher because current management environmental laws. riparian areas that provide habitat for efforts maintain the physical or At FMC properties in both Arizona nesting flycatchers. Additional evidence biological features necessary to develop, and New Mexico, FMC has helped fund of the partnership between FMC and the maintain, recycle, and protect essential flycatcher studies, cooperated with Service is shown by FMC’s commitment habitat essential for flycatcher conducting status surveys, and to provide for adaptive management, conservation. In making this finding, we coordinated with the flycatcher such that if future flycatcher surveys have weighed the benefits of exclusion

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against the benefits of including these further flycatcher conservation and and coordination with the Service in lands as critical habitat. other endangered and threatened connection with future resource We believe past, present, and future species. FMC will continue to management activities based on coordination with FMC has provided implement their management plans and adaptive management principles, and will continue to provide sufficient play an active role to protect flycatchers including, if necessary, the development education regarding flycatcher habitat and their habitat. Therefore, in of additional flycatcher conservation conservation needs on these lands, such consideration of the relevant impact to measures in coordination with the that there would be minimal additional our partnership with FMC, and the Service at a total cost of up to $500,000. educational benefit from designation of ongoing conservation management We proposed a 13.8-km (8.6-mi) critical habitat. Further, because any practices of FMC, we determined that segment of the Gila River along FMC’s potential impacts to flycatcher habitat the significant benefits of exclusion Ranch as flycatcher critical habitat. from future projects with a Federal outweigh the benefits of inclusion in the Flycatcher territories have been nexus will be addressed through a critical habitat designation. detected along the Gila River and the section 7 consultation with the Service After weighing the benefits of Upper Gila Management Unit since under the jeopardy standard, we believe including as flycatcher critical habitat 1993. The distribution and that the incremental conservation and against the benefit of exclusion, we have configuration of flycatcher habitat is regulatory benefit of designated critical concluded that the benefits of excluding unique at the Ranch, with many of the habitat on FMC-owned lands would the approximate 5.8 km (3.6 mi) of Pinal territories found in the canopies of largely be redundant with the combined Creek with long-term FMC management mature boxelder trees located along benefits of listing and existing commitments outweigh those that irrigation ditches outside of the river management. Therefore, the incremental would result from designating this area channel. At no other location conservation and regulatory benefits of as critical habitat. We have therefore throughout their breeding range do designating critical habitat on FMC excluded these lands from this final flycatchers nest nearly 20 m (60 feet) lands along Pinal Creek are minimal. critical habitat designation pursuant to above the ground. In 1999, a high of 262 The benefits of designating critical section 4(b)(2) of the Act. territories at 8 sites were detected along habitat for the flycatcher along Pinal this portion of the upper Gila River; the Creek are relatively small in comparison Exclusion Will Not Result in Extinction Ranch had 209 of these territories. In to the benefits of exclusion. The of the Species—Pinal Creek 2003, 191 territories at 8 sites were operation of the Lower Pinal Creek We also find that the exclusion of detected on the Gila River stream Treatment Plant remedial activities, these lands will not lead to the segments proposed as critical habitat long-term land management extinction of the flycatcher, nor hinder and the Ranch had 123 of these commitments, and continuation of a its recovery because long-term FMC territories. In 2011, this area had 174 conservation partnership will continue water and land management territories, and it remains an important to help foster the maintenance and commitments will ensure the long-term site for the conservation and recovery of development of flycatcher habitat. We persistence and protection of flycatcher the flycatcher in the Upper Gila anticipate that greater flycatcher habitat at Pinal Creek. While future Management Area. conservation can be achieved through section 7 consultations along this Pinal Because the Ranch is a working cattle these management actions and Creek are likely to be rare, the jeopardy and farming ranch, the management of relationships than through standard of section 7 of the Act and cattle is a primary component of their implementation of critical habitat routine implementation of conservation Management Plan. Eight pastures that designation on a project-by-project basis measures through the section 7 process incorporate approximately 1,372 ha (3,390 ac) are managed annually for on private land where the occurrence of due to the occurrence of flycatchers on implementation of critical habitat operation of livestock and farming this property provide assurances that designation due to federal funding or enterprises. The management consists of the flycatcher will not go extinct as a permitting is anticipated to be rare. a multifaceted and highly flexible rest- result of excluding these lands from the On the other hand, the benefits of rotation system utilizing both native critical habitat designation. excluding FMC-owned lands along forage and irrigated fields, that can be Pinal Creek from critical habitat are Upper Gila Management Unit modified based upon current considerable. FMC’s management plan Freeport McMoRan U-Bar Ranch conditions. Grazing use of river bottom establishes a framework for cooperation Management Plan pastures is monitored by daily visual and coordination with the Service in inspections. Use of these pastures is connection with resource management FMC owns the U-Bar Ranch (Ranch) limited to ensure that forage utilization activities based on adaptive near the Town of Cliff, in Grant County, levels are moderate and over-use does management principles. Most New Mexico, within the Upper Gila not occur. In addition, the riparian areas importantly, the management plan Management Area. This property was are monitored regularly, and riparian indicates a continuing commitment to formerly owned by Phelps Dodge vegetation is allowed to propagate along ongoing management that has resulted mining company. Through FMC and the river as well as in irrigation ditches. in nesting flycatcher habitat. Exclusion their long-time lessee, Mr. David Some specific management practices, of these lands from critical habitat will Ogilvie, FMC has developed a varying in different pastures, which help preserve and strengthen the Flycatcher Management Plan relate to the flycatcher and its habitat conservation partnership we have (Management Plan) for the Ranch which are: (1) Grazing is limited to November developed with FMC, reinforce those we formalizes a long-term commitment and through April to reduce impacts to are building with other entities, and describes management practices to vegetation and avoid negative impacts foster future partnerships and conserve one of the largest known during migration and nesting season; (2) development of management plans flycatcher population’s across its animal units are adjusted to protect and whereas inclusion will negatively breeding range over the past decade maintain the riparian vegetation needed impact our relationships with FMC and (FMC 2012a, entire). In addition, FMC’s by the flycatcher; (3) the irrigation other existing or future partners. We are Management Plan is intended to ditches are maintained, along with the committed to working with FMC to establish a framework for cooperation vegetation, to benefit the flycatcher; (4)

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habitat management efforts follow flood Federal agencies, in consultation with educate landowners, agencies, tribes, events that destroy habitat; and (5) the Service, must ensure that their and the public regarding the potential herbicide and pesticides are only used actions are not likely to jeopardize the conservation value of an area, and may in rare circumstances and are not used continued existence of any listed help focus conservation efforts on areas near flycatcher territories during species or result in the destruction or of high value for certain species. Any breeding season. Because much of the adverse modification of any designated information about the flycatcher that vegetation the flycatcher uses is located critical habitat of such species. The reaches a wide audience, including high above the ground in mature trees difference in the outcomes of the parties engaged in conservation above the influence of cattle grazing, jeopardy analysis and the adverse activities, is valuable. The designation this provides greater compatibility of modification analysis represents the of critical habitat may also strengthen or ranch operations and the maintenance regulatory benefit and costs of critical reinforce some Federal laws such as the of overstory flycatcher habitat. These habitat. Clean Water Act. These laws analyze the flexible and adaptive management The U-Bar Ranch along the Gila River potential for projects to significantly practices have resulted in the is known to be occupied by flycatchers affect the environment. Critical habitat expansion, protection, and successful and therefore, if a Federal action or may signal the presence of sensitive continuance of a large flycatcher permitting occurs, there is a catalyst for habitat that could otherwise be missed population. evaluation under section 7 of the Act. It in the review process for these other In 1995, flooding impacted the is possible that in the future, Federal environmental laws Bennett Farm Fields in the 162-ha (400- funding or permitting could occur on At FMC properties in both Arizona ac) River Pasture. The Ranch then this privately owned and managed and New Mexico, FMC has helped fund implemented the Bennett Restoration segment of the Ranch where a critical flycatcher studies, cooperated with Project, a creation of a mosaic of habitat designation may benefit conducting status surveys, and different-aged vegetation with dense flycatcher habitat. Because the Ranch is coordinated with the flycatcher patches of young willows and privately owned, only actions with a technical recovery team. Because of cottonwoods occurring in manmade Federal nexus would result in an FMC’s existing conservation awareness oxbows situated between irrigated and evaluation of critical habitat under and implementation of conservation dry-land pastures and the Gila River. section 7 of the Act. As discussed above, actions, we believe there is little Water is continuously present and the the principal benefit of any designated educational benefit or support for other project has become a marshy habitat critical habitat is that activities affecting environmental laws and regulations that now supports one of the higher habitat require consultation under attributable to flycatcher critical habitat number of flycatcher territories on the section 7 of the Act if a Federal action beyond those achieved from listing the Ranch. The 2004 and 2011 surveys is involved. Such consultation would species under the Act and FMC’s recorded 35 territories at the Bennett ensure that adequate protection is continued Ranch conservation efforts. Restoration Site. provided to avoid destruction or adverse Benefits of Exclusion—U-Bar Ranch The second-most successful nesting modification of critical habitat. These site on the Ranch is in the Lower River actions would most likely occur from A considerable benefit from excluding Pasture. A feature of this riparian area the Corps implementing the Clean FMC-owned Ranch lands as flycatcher is the amount of water it receives from Water Act, possibly Federal funding to critical habitat is the maintenance and adjacent irrigated fields. The Ranch has help implement a cost-share project or strengthening of ongoing conservation rehydrated ditches and no longer grant funding, and maybe, less likely, partnerships. FMC has demonstrated a follows past land-use practices, which actions occurring on the adjacent Gila partnership with the Service by involved active clearing of woody National Forest. However, to date, we participating in the development and vegetation from ditch banks. The Ranch are not aware of any formal section 7 implementation of the Recovery Plan, has developed tree growth and a consultation that has occurred that and by solidifying their conservation network of riparian habitat in addressed the flycatcher on the Ranch. actions in management plans submitted connection with the ditch-banks that Because of the Ranch’s conservation to us for the flycatcher at the Ranch attract breeding flycatchers. actions in developing flycatcher habitat, (2005 and 2012) and Pinal Creek in Besides implementing compatible the compatibility between existing Arizona (2012), and for the spikedace land management practices, FMC and ranch activities and flycatcher and loach minnow (2007 and 2011). the Ranch have supported annual management, and their commitment to They have also have demonstrated a flycatcher surveys and research in the implement their Management Plan, it is willingness and commitment to Gila valley since 1994. Surveyors are unlikely that actions would be proposed conserve the flycatchers and the trained and permitted in coordination that would alter the operation of this flycatcher habitat at the Ranch with with the Service and survey results are Ranch and the associated flycatcher potential financial contribution of up to submitted to the Service in annual habitat. Because of the lack of past $500,000. reports. Flycatcher research on the section 7 consultations on this privately The success of the Ranch’s Ranch has included: nest monitoring owned Ranch, the reduced likelihood of management is demonstrated in the (sites, substrate, and success), diet, future federal actions altering the maintenance of off-channel habitat and microhabitat use, climatic influences on current management that supports continued management and creation of breeding, cowbird parasitism, and flycatcher habitat, the presence of other riparian areas that provide distribution and characteristics of flycatcher territories, and the flycatcher nesting habitat. While the territories. Permits for studies are commitment to continue implementing number of flycatcher territories can coordinated with the Service and land management actions that maintain fluctuate over time, this area has reports are submitted to us for review flycatcher habitat, the benefits of a consistently maintained a large number, and comment. critical habitat designation on the Ranch typically exceeding 100 and in some are minimized. years just over 250 territories. The Benefits of Inclusion—U-Bar Ranch Another important benefit of Ranch continues to survey and evaluate As discussed above under including lands in a critical habitat territory numbers and share that Application of Section 4(b)(2) of the Act, designation is that it can serve to important information with the Service.

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Understanding the distribution and We believe past, present, and future flycatcher conservation and other abundance of flycatcher territories is a coordination with FMC and the Ranch endangered and threatened species. key component to tracking recovery of has provided and will continue to FMC and the Ranch will continue to the flycatcher. Exclusion of this area provide sufficient education regarding implement their management plans and from the designation will maintain and flycatcher habitat conservation needs on play an active role to protect flycatchers strengthen the partnership between the these lands, such that there would be and their habitat. Therefore, in Service and FMC. minimal additional educational benefit consideration of the relevant impact to Our collaborative relationship with from designation of critical habitat. our partnership with FMC and the FMC makes a difference in our Further, because any potential impacts Ranch, and their ongoing conservation partnership with the numerous to flycatcher habitat from future projects management practices, we determined stakeholders involved with flycatcher with a Federal nexus will be addressed that the significant benefits of exclusion management and recovery, and through a section 7 consultation with outweigh the benefits of inclusion in the influences our ability to form the Service under the jeopardy standard, critical habitat designation. partnerships with others. Concerns over we believe that the incremental After weighing the benefits of perceived added regulation potentially conservation and regulatory benefit of including the Ranch along the Gila imposed by critical habitat could harm designated critical habitat on FMC- River as flycatcher critical habitat this collaborative relationship. owned Ranch lands would largely be against the benefit of exclusion, we have Because so many important areas with redundant with the combined benefits concluded that the benefits of excluding flycatcher habitat occur on private of listing and existing management. the approximate 13.8-km (8.6-mi) lands, collaborative relationships with Therefore, the incremental conservation segment of the Gila River with long-term private landowners will be essential in and regulatory benefits of designating FMC management commitments order to recover the flycatcher. The critical habitat on FMC lands at the outweigh those that would result from flycatcher and its habitat are expected to Ranch are minimal. designating this area as critical habitat. The benefits of designating critical benefit substantially from voluntary We have therefore excluded these Ranch habitat for the flycatcher at the Ranch landowner management actions that lands from this final critical habitat are relatively small in comparison to the implement appropriate and effective designation pursuant to section 4(b)(2) benefits of exclusion. The existing and conservation strategies. The of the Act. long-term land management conservation benefits of critical habitat commitments and continuation of a Exclusion Will Not Result in Extinction are primarily regulatory or prohibitive conservation partnership will continue of the Species—U-Bar Ranch in nature. Where consistent with the to foster the maintenance and We also find that the exclusion of discretion provided by the Act, the development of flycatcher habitat and Service believes it is necessary to flow of important recovery information. these Ranch lands will not lead to the implement policies that provide We anticipate that greater flycatcher extinction of the flycatcher, nor hinder positive incentives to private conservation can be achieved through its recovery because long-term FMC landowners to voluntarily conserve these management actions and water and land management natural resources and that remove or relationships than through commitments will ensure the long-term reduce disincentives to conservation implementation of critical habitat persistence and protection of flycatcher (Wilcove et al. 1996, 1–15; Bean 2002, designation on a project-by-project basis habitat at the Ranch on the Gila River. 1–7). Thus, we believe it is essential for on private land where the occurrence of While the expectation of abundant the flycatcher recovery to build on implementation of critical habitat future section 7 consultations at Ranch continued conservation activities such designation due to federal funding or are likely to be rare, the jeopardy as these with a proven partner, and to permitting is anticipated to be rare. standard of section 7 of the Act and provide positive incentives for other On the other hand, the benefits of routine implementation of conservation private landowners who might be excluding FMC-owned Ranch lands measures through the section 7 process considering implementing voluntary along the Gila River from critical habitat due to the occurrence of flycatchers on conservation activities, but have are considerable. FMC and the Ranch’s this property provide assurances that concerns about incurring incidental management plan establishes a the flycatcher will not go extinct as a regulatory or economic impacts. framework for cooperation and result of excluding these lands from the critical habitat designation. Weighing Benefits of Exclusion Against coordination with the Service in the Benefits of Inclusion—U-Bar Ranch connection with resource management San Carlos Reservoir activities based on adaptive We have determined that the benefits management principles. Most We proposed 26.8 km (16.6 mi) of the of exclusion of the Ranch on private importantly, the management plan Gila River within the conservation space lands managed by FMC along the Gila indicates a continuing commitment to of San Carlos Reservoir, impounded by River in New Mexico, with the ongoing management that has resulted Coolidge Dam, as critical habitat for the implementation of their management in nesting flycatcher habitat. Exclusion flycatcher. Coolidge Dam and the San plan, outweigh the benefits of inclusion, of these lands from critical habitat will Carlos Reservoir lake bottom (up to and will not result in extinction of the help preserve and strengthen the elevation 773 m, 2,535 ft) are located on flycatcher because current management conservation partnership we have Federal land within Pinal, Gila, and and conservation efforts maintain the developed with FMC and the Ranch, Graham Counties, Arizona (Service unique off-channel habitat and the reinforce those we are building with 2004c, p. 4). The BIA owns the San physical or biological features necessary other entities, and foster future Carlos Reservoir land in fee simple title to develop, maintain, recycle, and partnerships and development of as the owner and operator of the San protect flycatcher habitat essential to its management plans whereas inclusion Carlos Irrigation Project. The Federal conservation. In making this finding, we will negatively impact our relationships Government purchased the land for the have weighed the benefits of exclusion with FMC and other existing or future Coolidge Dam site from the San Carlos against the benefits of including these partners. We are committed to working Apache Tribe. Consequently, the dam lands as critical habitat. with FMC and the Ranch to further sits on federal property, but lies within

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the confines of the San Carlos Apache the seasonal, flashy nature of river flows conducted by the San Carlos Apache Reservation. produce reservoir levels that can Recreation and Wildlife Department At the time of publication of our fluctuate dramatically (USBR 2004, p. since 2000 (Service 2004c, p. 13), with proposed rule (76 FR 50542, August 15, 12). However, the reservoir rarely fills to the support of USBR, AGFD, and USGS. 2011, p. 50593) the land ownership of capacity; flood flows have filled the As result of Coolidge Dam and San the conservation space of San Carlos reservoir to capacity 8 times during 5 Carlos Reservoir occurring near the Reservoir was mistakenly described as years since storage began in 1928. Water border of the upper Gila Management San Carlos Apache tribal land, and this levels have stayed above 0.06 cubic km Unit and Middle Gila and San Pedro was reflected in documents made (50,000 acre-feet) in 29 of the last 67 Management Units, their operation available to the public for comment. The years, while drawdown to less than one plays a role in the overall development, draft economic analysis prepared by percent of capacity has occurred in 27 persistence, and recycling of flycatcher Industrial Economics, Inc., discussed years during the same period (USBR habitat (Service 2004c, pp. 14–19). ownership and operation of the 2004, p. 12). Total dry-up of the Similar to what occurs at other lakes in Reservoir by the BIA for the purposes of Reservoir was recorded 21 times in 12 Arizona, such as Roosevelt and providing irrigation water to the GRIC years between 1945 and 1972 (USBR Horseshoe, Coolidge Dam can and other downstream farmers. These 2004, p. 12). Since the onset of drought periodically store and release large ownership issues have been resolved beginning in the mid-1990s, and amounts of water that can mimic flood with the help of public comments and especially from the early 2000s, the flows within the lakebed, spreading our review of San Carlos Apache Tribe conservation pool of the reservoir has water over a large area and stimulating v. United States, 272 F. Supp. 2d 860 (D. typically been low—often around 5 the growth of abundant flycatcher Az. 2003), which discusses the percent capacity (USBR 2004, p. 12). In habitat. Additionally, continuing to Reservoir’s creation and subsequent January 2004, the Reservoir had move water downstream, with periodic history. dropped to its lowest level in 26 years flooding, can help create and maintain Coolidge Dam was constructed in (USBR 2004, p. 13). As a result, the Gila flycatcher habitat. As of the most recent 1929, for the purpose of storing water to River often runs unaltered, and the rangewide flycatcher report, these units be used for agricultural irrigation of reservoir are not inundated as a result contained 329 and 233 flycatcher lands in the Casa Grande Valley in of water storage through much of the territories on non-tribal land, central Arizona for the Pima and conservation space of San Carlos respectively (Durst et al. 2008, p. 12). Maricopa Indians (now known as GRIC) Reservoir. Nevertheless, the These numbers surpass the 325 (Upper and the non-Indian farmers living in the conservation space within the Reservoir Gila Management Unit) and 150 (Middle San Carlos Irrigation and Drainage must remain open. Gila and San Pedro Management Unit) District (SCIDD) (Service 2004c, p.4). Release of water from Coolidge Dam numerical territory goals for each The rights to the water stored in the is dependent on irrigation demand, the Management Unit. As of completion of Reservoir were determined through availability of SCIP-owned stored water, USGS’s 2007 Rangewide Report, the water rights litigation brought by the and the amount of water flowing from Gila River had the highest number of United States in 1925, and defined in the San Carlos and Gila Rivers (USBR known breeding sites (50) and territories 1935, by what is known as the Globe 2004, p. 12). Chronic drought since 1999 throughout the flycatcher’s range (Durst Equity Decree. Under the Globe Equity had severely reduced inflows to the et al. 2008, p. 11). Decree, a Gila Water Commissioner is Reservoir and depleted supplies of San Carlos Apache Tribe and Its charged to operate a ‘‘call system’’ that stored water available to downstream Relationship to Waters in San Carlos determines how much surface water irrigators (USBR 2004, p. 13). On a Apache Reservation each party to the Decree may use on any seasonal basis, these effects are most particular day, which determines pronounced in the weeks preceding the Prior to 1992, there was no intent whether water is to be stored in or summer monsoon, when irrigation established by the Globe Equity Decree released from the Reservoir. Coolidge demand is high and natural river flow or legislation that Coolidge Dam be Dam and the San Carlos Reservoir are is low (USBR 2004, p. 13). operated for any purpose other than operated by the BIA as part of the San River flows in the Southwest are irrigation (USBR 2004, p. 5). However, Carlos Irrigation Project (SCIP), under typically appropriated, which means the San Carlos Apache Water Rights the supervision of the Water that individuals, corporations, and Settlement Act of 1992 allows the Tribe Commissioner. government entities own, within State to exchange its Central Arizona Project Major inflows into San Carlos and Federal law, the rights to withdraw water allocation for irrigation water Reservoir are from the Gila and San and use the water within a specific set releases from San Carlos Reservoir, and Carlos Rivers. Water released from of allocations and priorities (Service grants the Tribe permission to store Coolidge Dam flows approximately 109 2004c, p. 5). These rights may be bought exchanged water in the Reservoir to km (68 mi) down the Gila River where and sold pursuant to State and Federal maintain a permanent pool for fish, it is diverted at the Ashurst-Hayden law. Such sales or exchanges are wildlife, and recreation (USBR 2004, p. Diversion Dam into the Florence-Casa typically related to the use of water for 5). All such water exchanges must be Grande Canal, which ultimately delivers municipal, industrial, or agricultural authorized by the Gila River irrigation water to both GRIC and SCIDD use, but there are certain instances Commissioner after consultation with lands through a series of lateral and sub- wherein water may be purchased or other parties to the Globe Equity Decree, lateral canals (Service 2004c, p. 4). exchanged for the benefit of fish and and are subject to approval by USBR When at full capacity, 1.07 cubic km wildlife resources (Service 2004c, p. 5). acting on behalf of the Secretary (USBR (867,400 acre-feet) of water, San Carlos 2004, p. 5). Reservoir can be one of the largest lakes Status of the Flycatcher and San Carlos The United States has an Indian trust in Arizona with 254 km (158 mi) of Reservoir responsibility to protect and maintain shoreline. The conservation space of the Flycatcher population size and rights reserved by or granted to Indian reservoir is shallow, as a result, when territory information is the proprietary tribes or individual Indians by treaties, full the stored water can spread over a information of the San Carlos Apache statutes, and Executive Orders, which very broad area. Irrigation demand and Tribe and are based upon surveys are sometimes further interpreted

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through court decisions and regulations. Carlos Reservoir would result in the San Carlos Apache Tribe, to This trust responsibility requires all incidental take of the bald eagle and the maintain a minimum pool in San Carlos Federal agencies ensure their actions flycatcher downstream of Coolidge Dam Reservoir. The action, which never afford reasonable protection of Indian due to impacts to their habitat (Service ended up occurring, would have led to trust assets (USBR 2004, p. 37). 2004c, pp. 42–44); however because of the holding of water within San Carlos A severe drawdown in 1990 was the short-term nature of the impacts, the Reservoir to preserve the existing lake in averted when Congress directed BIA to lack of water flowing from San Carlos exchange for the delivery of water to use SCIP power revenues to purchase Reservoir would not jeopardize either GRIC from the Central Arizona Project. 0.04 cubic km (30,000 acre-feet) of species (Service 2004c, pp. 19–20, 30). As described above, we anticipated that Central Arizona Project water (water Because of the small amount of water while the action would result in short- diverted from the Colorado River and storage within the reservoir, no effects term harm to the flycatcher, it would stored in Arizona) to exchange for San to either species using habitat along the not result in jeopardy. Although this Carlos Reservoir water (USBR 2004, p. Gila River within the conservation space question has not been finally 12). Regional drought in 1997 and from of San Carlos Reservoir or water stored determined as a matter of law, the 1999 through 2003 required additional behind Coolidge Dam were anticipated USBR’s view is that because the San water exchanges with SCIP users to to be affected by the relatively small Carlos Reservoir and Coolidge Dam are establish and conserve a minimum pool amount of additional water stored owned and operated by the BIA solely (USBR 2004, p. 12). (Service 2004c, p. 17). for the benefit of SCIP water users Federal land within San Carlos (USBR 2004, p. 37), the operation of Reservoir is surrounded by the 730,000 Gila River Riparian Areas Upstream of San Carlos Reservoir Coolidge Dam to meet the irrigation ha (1.8 million ac) of the San Carlos demand of SCIP is a nondiscretionary Apache Tribal Reservation. The BIA, We also proposed 14.0 km (8.7 mi) of function provided for under the San who owns the lake bottom and operates the Gila River upstream of the San Carlos Project Act of 1924 and the Coolidge Dam, does not administer a Carlos Reservoir as flycatcher critical Decree (USBR 2004, p. 37). permit, recreation, or access program for habitat. That portion of the Gila River is Furthermore, the BIA has never initiated these Federal lands. Because located on San Carlos Apache tribal section 7 consultation on the effects to recreationists must enter the San Carlos land (see Tribal Management Plans listed species caused by the operation of Apache Indian Reservation and acquire below). Coolidge Dam. Additionally, because a recreation permit before reaching the Benefits of Inclusion—San Carlos the lakebed is meant for water storage, San Carlos Reservoir lake bottom, access Reservoir we do not anticipate other agencies to the lakebed is largely regulated by the As discussed above under implementing a significant amount of San Carlos Apache Tribe. The San Federal actions that would conflict with Carlos Apache Tribe Recreation and Application of Section 4(b)(2) of the Act, its goal or that could be affected by Wildlife Department (SCATRWD) Federal agencies, in consultation with dynamic water levels. For example, the administers recreational use permits on the Service, must ensure that their Federal Highway Administration is San Carlos Apache tribal lands actions are not likely to jeopardize the expected to not develop any rights-of- (SCATRWD 2009, entire). The continued existence of any listed way within the lake bottom, and the SCATRWD describes specific numbered species or result in the destruction or Corps is not anticipated to frequently areas or units of their land where their adverse modification of any designated issue any Clean Water Act permits for various rules and regulations apply. A critical habitat of such species. The dredge-and-fill actions. To date, no recreation permit is required for non- difference in the outcomes of the projects requiring formal section 7 tribal members to allow entry except for jeopardy analysis and the adverse hunting and fishing (specific permits are modification analysis represents the consultation have been initiated by required for those activities) (SCATRWD regulatory benefit and costs of critical these two agencies or other Federal 2009, entire). The SCATRWD habitat. agencies implementing actions within administers fishing licenses for San The Gila River is known to be the San Carlos Reservoir lakebed. Carlos Reservoir, but does not include occupied by flycatchers and therefore, if Therefore, with the intended use of the Federal land within the conservation a Federal action or permitting occurs, conservation space within San Carlos space of San Carlos Reservoir within there is a catalyst for evaluation under Reservoir for water storage; the any of their units for other recreational section 7 of the Act. Should we preservation of the reservoir’s uses. Other than a store and marina designate critical habitat along the Gila conservation space as open space; the located closer toward Coolidge Dam and River on Federal land within the San limited, on-the-ground actions adjacent to the reservoir, no paved Carlos Reservoir conservation space on implemented by the BIA; the possibility roads, developed camping areas, or Federal land, our section 7 consultation that BIA dam operations are non- other designed recreation centers are history indicates that there may be discretionary; and only a single formal known to occur within the San Carlos some, but few regulatory benefits to the section 7 consultation initiated since the Reservoir conservation space. flycatcher. As described above, even flycatcher was listed, we anticipate that with flycatchers occurring throughout there is little, if any, additional benefit Proposed 2003 CAP Water Exchange this portion of the Gila River, the of a critical habitat designation within With the San Carlos Apache Tribe frequency of formal flycatcher-related San Carlos Reservoir. USBR initiated consultation under section 7 consultations has been rare. Another important benefit of section 7 of the Act with the Service on Our records show that a single formal including lands in a critical habitat a proposed water exchange between the consultation on flycatchers occurred for designation is that it can serve to San Carlos Apache Tribe and the actions associated with San Carlos educate landowners, agencies, tribes, Central Arizona Project in 2003, and the Reservoir (Service 2004c, entire). As and the public regarding the potential Service completed a biological opinion mentioned above, this formal conservation value of an area, and may (Service 2004c, entire). We concluded consultation with the USBR was a help focus conservation efforts on areas that stopping downstream Gila River discretionary proposed water exchange, of high value for certain species. Any flow in order to store more water at San between the Central Arizona Project and information about the flycatcher that

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reaches a wide audience, including associated with flycatcher management, designation of flycatcher critical habitat. parties engaged in conservation flycatcher recovery, and the designation We view this as a substantial benefit activities, is valuable. The designation of critical habitat. As such, we since we have developed a cooperative of critical habitat may also strengthen or established relationships specific to working relationship with these tribes reinforce some Federal laws such as the flycatcher conservation. To further our for the mutual benefit of flycatcher Clean Water Act. These laws analyze the conservation partnerships, we have conservation and other endangered and potential for projects to significantly provided technical assistance to tribes threatened species. affect the environment. Critical habitat to develop measures to conserve the We indicated in the proposed rule may signal the presence of sensitive flycatcher and its habitat on their lands. that our final decision regarding the habitat that could otherwise be missed While we did not propose any exclusions of tribal lands under section in the review process for these other flycatcher critical habitat on GRIC lands, 4(b)(2) of the Act would consider tribal environmental laws. GRIC described their support for management and the recognition of their At San Carlos Reservoir, the flycatcher recovery and the importance capability to appropriately manage their SCATRWD, along with support from of the flycatcher to their traditions and own resources, and the government-to- USGS, AGFD, and the USBR have culture (Lewis B. 2011, entire). The San government relationship of the United conducted flycatcher surveys. USBR in Carlos Apache Tribe submitted a States with tribal entities (76 FR 50542, administering the Central Arizona Flycatcher Management Plan August 15, 2011, p. 50584). As noted Project and the BIA as Coolidge Dam (SCATRWD 2012, entire). These above, while the San Carlos Reservoir operators are fully aware of the proactive actions were conducted in lakebed is Federal land, the purpose of importance of San Carlos Reservoir and accordance with Secretarial Order 3206, this reservoir is to store water for the Coolidge Dam to flycatcher habitat and ‘‘American Indian Tribal Rights, GRIC. Additionally, water storage recovery due to their involvement in the Federal-Tribal Trust Responsibilities, supports wildlife, jobs, and the water transfer described above. Because and the Endangered Species Act’’ (June economy at San Carlos Apache tribal of this overall awareness by tribal, 5, 1997); the relevant provision of the land. We also acknowledged our Federal, and State entities, we believe Departmental Manual of the Department responsibilities to work directly with there is little educational benefit or of the Interior (512 DM 2); and tribes in developing programs for support for other environmental laws Secretarial Order 3317, ‘‘Department of healthy ecosystems, our need to remain and regulations attributable to flycatcher Interior Policy on Consultation with sensitive to Indian culture, and to make critical habitat beyond those achieved Indian Tribes’’ (December 1, 2011). information available to tribes (76 FR from listing the species under the Act. During our communication with these 50542, August 15, 2011, p. 50596). tribes, we recognized and endorsed their We coordinated and communicated Benefits of Exclusion—San Carlos with the San Carlos Apache Tribe fundamental right to provide for tribal Reservoir throughout the revision of flycatcher resource management activities, The benefits of excluding San Carlos critical habitat by providing them including those relating to riparian Reservoir are unique because, while the information on: Implementation of habitat. San Carlos Reservoir lakebed is Federal section 4(b)(2) of the Act; the Recovery land, it was acquired for the purpose of The designation of critical habitat on Plan; Management Plan templates, water storage for the GRIC. this piece of Federal land would be guidance, and review; critical habitat Additionally, San Carlos Reservoir has expected to adversely impact our schedules, related documents, and become an important part of the San working relationship with these tribes, public hearings; and our interest in Carlos Apache Tribe because it because the San Carlos Reservoir consulting with them on a government- generates income through its lakebed supports the storage of water, to-government basis at their request. We recreational value, and nearby stores, an important tribal resource for both also followed up our correspondence lodging, and gaming facilities. GRIC and the San Carlos Apache Tribe. with telephone calls and electronic mail Therefore, San Carlos Reservoir is a During our discussions and in the to assist with any questions. Because significant trust asset to both GRIC and comments we received from tribes and GRIC was not included within the areas the San Carlos Apache Tribe. As a their representatives on the proposed proposed as critical habitat, the content result, the benefits from exclusion are designation of critical habitat, we were of our coordination was not as detailed. more clearly attributed to our trust informed that critical habitat would be However, we met with GRIC and responsibility and overall conservation viewed as an intrusion on their discussed this unique situation with relationships with tribes. As a result, the sovereign abilities to manage natural these Federal lands. During the benefits of excluding San Carlos resources in accordance with their own comment period, we received input Reservoir from designation of critical policies, customs, and laws, and in the from many tribes noting that the habitat primarily include: (1) The case of GRIC, a potential impact to their beneficial cooperative working advancement of our Federal Indian federally mandated water deliveries. relationships between the Service and Trust obligations; and (2) the The perceived future restrictions tribes have assisted in the conservation maintenance of effective collaboration (whether realized or not) of a critical of listed species and other natural and cooperation to promote the habitat designation could have a resources. GRIC representatives and the conservation of the flycatcher and its damaging effect to coordination efforts, San Carlos Apache Tribe indicated that habitat, and other species. possibly preventing actions that might critical habitat designation on this During the development of the maintain, improve, or restore habitat for Federal land would amount to flycatcher critical habitat proposal (and the flycatcher and other species. To this additional regulation of tribal trust coordination for other critical habitat end, we found that tribes would prefer resources, and would be viewed as an proposals) and other efforts such as to work with us on a government-to- unwarranted and unwanted. We development of the Recovery Plan, we government basis. For these reasons, we conclude that our working relationships have met and communicated with believe that our working relationships with these tribes on a government-to- various tribes, including GRIC and the with these tribes would be better government basis have been extremely San Carlos Apache Tribe to discuss how maintained if the San Carlos Reservoir beneficial in implementing natural they might be affected by the regulations lakebed is excluded from the resource programs of mutual interest,

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and that these productive relationships scientific and commercial data Hassayampa and Agua Fria Management would be compromised by critical available, that the failure to designate Unit habitat designation at San Carlos such area as critical habitat will result City of Phoenix Safe Harbor Agreement Reservoir. in the extinction of the species for Tres Rios Ecosystem Restoration concerned.’’ We have determined that Benefits of Exclusion Outweigh the Site, Gila River exclusion of the Gila River within the Benefits of Inclusion—San Carlos San Carlos Reservoir lakebed from the The City of Phoenix, in cooperation Reservoir critical habitat designation will not with the Corps, has developed a Project The benefits of designating the Gila result in the extinction of the flycatcher. Cooperation Agreement (PCA), and in River within the San Carlos Reservoir Discretionary Federal activities on these partnership with the Service, are lakebed as critical habitat are limited to areas that may affect the flycatcher will finalizing a Safe Harbor Agreement the incremental benefits gained through still require consultation under section (SHA) for the Tres Rios Ecosystem the regulatory requirement to consult 7 of the Act. Section 7(a)(2) of the Act Restoration Project along the Gila River under section 7 and consideration of the requires Federal agencies to ensure that in Maricopa County, Arizona. The Tres need to avoid adverse modification of activities they authorize, fund, or carry Rios Ecosystem Restoration site is critical habitat, as well as agency and out are not likely to jeopardize the downstream of the Salt River, Agua Fria, educational awareness, and continued existence of listed species. and Gila River confluence. The goal of implementation of other laws and Therefore, even without critical habitat these agreements is to maintain and regulations. However, as discussed in designation on these lands, enhance riparian and wetland habitat, detail above, we believe these benefits discretionary activities that occur on and manage roads, trails, water delivery are minimized because of the these lands cannot jeopardize the systems, flood control capacity, and limitations of federal actions occurring continued existence of the flycatcher. storm water facilities within 375 ha (927 within the conservation space of San Although flycatchers are known to ac) of City of Phoenix owned land. Carlos Reservoir; the operation of occur within and downstream of San Through the PCA the City of Phoenix Coolidge Dam that has allowed Carlos Reservoir, our record signed with Corps in 2004, the Corps numerical flycatcher territory recovery demonstrates that formal section 7 committed 6.2 million dollars towards goals to be achieved in the Management consultations rarely occur at San Carlos project construction (which include Units it influences; and the limited Reservoir. Because of the size of the San riparian habitat and stream discretion BIA may have with Coolidge Carlos Reservoir conservation space and improvements), while the City of Dam operations. Coolidge Dam operations that mimic Phoenix committed to the long-term The benefits of excluding the San flood flows within the lake and deliver Carlos Reservoir lakebed from management of these habitats, including water downstream, the number of supplying treated wastewater at a cost of designation as flycatcher critical habitat flycatcher territories has continued to 1.3 million dollars annually. The SHA also include the importance of our remain high. Following the most recent between the Service and the City of partnerships and tribal lands for rangewide assessment of the Phoenix establishes maintenance and flycatcher recovery and our distribution and abundance of management of these habitats for the responsibility to afford reasonable flycatcher territories, the Gila River conservation benefit of the flycatcher, protection of Native American trust upstream and downstream of San Carlos without penalty under the Act. The assets. While the lakebed of San Carlos Reservoir supports the most number of initial stages of the habitat improvement Reservoir is Federal land, the water breeding sites and flycatcher territories project have already begun, and the resources it supports are essential (over 550) throughout the flycatcher’s notice of availability for public review components to both the San Carlos range (Durst et al. 2008, p. 11). The most Apache Tribe and GRIC. These tribes recent estimate of the number of of the draft SHA was published in the play an important partnership role in territories exceeds those needed to reach Federal Register on July 10, 2012 (77 FR managing their lands for flycatcher recovery goals (Durst et al. 2008, p. 11). 40628), and the final is anticipated to be recovery. Without their cooperation, This has occurred while San Carlos signed in the winter of 2012 or 2013. land management, and ability to share Reservoir has not been previously been The proposed term of the SHA is for a information, achieving flycatcher designated as critical habitat. 50-year period. recovery goals will become much more Accordingly, we have determined that Prior to the development and difficult. Our conservation partnership excluding San Carlos Reservoir will not initiation of these conservation efforts, with tribes also includes the result in the extinction of the flycatcher the enrolled lands were owned and advancement and support of our Federal and that these Federal lands that were operated by private landowners for a Indian Trust obligations and the acquired to support a tribal trust variety of resource uses. Predominant maintenance of effective collaboration resource should be excluded under uses included sand and gravel mining, and cooperation to promote the subsection 4(b)(2) of the Act because the agricultural uses, and residences. These conservation of the flycatcher and its benefits of excluding these lands from activities, in addition to the interruption habitat. In conclusion, we find that the critical habitat for the flycatcher of the river’s natural flood regime benefits of excluding Federal land outweigh the benefits of their inclusion, caused by upstream dams and within the Gila River lakebed of San and the exclusion of these lands from diversions, have resulted in reduced Carlos Reservoir from a flycatcher the designation will not result in the quality and function of the river and critical habitat designation outweigh the extinction of the species. associated riparian habitat. Flycatchers benefits of including these areas. were detected within these private San Carlos Apache Tribal Management lands, but not with frequency. Some Exclusion Will Not Result in Extinction Plan vegetation structurally suitable for of the Species—San Carlos Reservoir Please see the end of this section for nesting was present, but past land and The Secretary, under section 4(b)(2) of a discussion about tribes from the Little water uses reduced the overall quality of the Act may exclude areas from the Colorado, San Juan, Verde, Upper Gila, riparian habitat. Between 1995 and critical habitat designation only if it is and Upper Rio Grande Management 2003, individual migrant flycatchers determined, ‘‘based on the best Units that submitted Management Plans. were detected three times, and two

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territorial males were detected a single PCA, no other consultations have been of Phoenix and Corps have a long-term time. initiated for this area since the commitment to implement habitat The enrolled lands are now owned by flycatcher has been listed under the Act. improvement and land and water the City of Phoenix. The Because of the lack of past section 7 management actions at Tres Rios, which implementation of actions through the consultations in this area and the are the types of actions recommended in PCA by the Corps and the City of commitment by the City of Phoenix to the Recovery Plan to conserve the Phoenix and long-term habitat improve and manage the Tres Rios Area, flycatcher. Because of these long-term management by the City of Phoenix the benefit of implementing a critical stream and riparian habitat attempts to restore stream function, habitat designation in this area through improvement commitments, we do not reliable water, and riparian vegetation to section 7 consultations is limited. anticipate future federally funded this segment of the Gila River. It also Another important benefit of actions reversing these habitat attempts to restore flood protection and including lands in a critical habitat improvements. As a result of the habitat passive recreation. Project construction designation is that the designation can improvement goals of the Tres Rios within the Tres Rios area includes serve to educate landowners, agencies, Project, there is a low probability of channel formation and habitat tribes, and the public regarding the mandatory elements arising from formal development. Improvements include potential conservation value of an area, section 7 consultations and therefore creating wetland and riparian biotic and may help focus conservation efforts any outcome from a critical habitat communities, including mesquite on areas of high conservation value for designation would more likely result in bosque, cottonwood/willow forest, certain species. Any information about discretionary conservation freshwater marsh, floodplain terrace, the flycatcher that reaches a wide recommendations. We also believe that and open water. After the conservation audience, including parties engaged in the informational benefits have already measures are implemented, the lands conservation activities, is valuable. The occurred through past actions and will be managed with the primary goal designation of critical habitat may also discussion of inclusion of the flycatcher of habitat conservation. Passive strengthen or reinforce some Federal within a SHA. Therefore, the recreation activities will be managed laws such as the Clean Water Act. These incremental benefits of a flycatcher with the goal of having minimal impact laws analyze the potential for projects to critical habitat designation for the Tres to the habitat. significantly affect the environment. Rios Ecosystem Restoration Project Critical habitat may signal the presence Benefits of Inclusion—Tres Rios would be minimal. of sensitive habitat that could otherwise Ecosystem Restoration Site be missed in the review process for Benefits of Exclusion—Tres Rios As discussed above under these other environmental laws. Ecosystem Restoration Site Application of Section 4(b)(2) of the Act, The City of Phoenix, during the A considerable benefit from excluding Federal agencies, in consultation with development of the SHA has conducted the Tres Rios Restoration Site as the Service, must ensure that their flycatcher surveys along this segment. flycatcher critical habitat is the actions are not likely to jeopardize the The Corps and AGFD are also involved maintenance and strengthening of continued existence of any listed in the Tres Rios Area and are aware of ongoing conservation partnerships. In species or result in the destruction or the importance of this segment for addition to the effort for Tres Rios Area, adverse modification of any designated flycatcher recovery. The City of Phoenix the City of Phoenix has demonstrated a critical habitat of such species. The has also participated with the Service as partnership with the Service by difference in the outcomes of the a stakeholder in the development of the developing and implementing a jeopardy analysis and the adverse Roosevelt Dam and Horseshoe and different SHA with the Service for the modification analysis represents the Bartlett Dam HCPs, where the flycatcher Rio Salado Habitat Restoration Project. regulatory benefit and costs of critical was a primary species of conservation. Through these processes, they have habitat. The AGFD has been regularly involved demonstrated a willingness to develop, Lands being evaluated for exclusion with flycatcher surveys, management, maintain, and manage Gila River in this segment of the Gila River have and research Statewide, including the flycatcher habitat, as well as habitat for been occupied by migrating and nesting Tres Rios Area. The listing of the other listed species. flycatchers and are subject to section 7 flycatcher and development of the Tres The success of the City of Phoenix’s consultation requirements of the Act Rios Area and associated SHA has riparian habitat management has yet to under the jeopardy standard. The City of caused the managing agencies in this be realized because their project is just Phoenix owns and manages much of area to be fully aware of the inclusion beginning; we estimate that it may take this reach of the Gila River. Because of of the flycatcher in implementing other 5 years following implementation for the financial commitment by the Corps, environmental laws and regulations. flycatcher habitat to be established. The the PCA between the Corps and City of Because of the City of Phoenix, Corps, City of Phoenix’s conservation strategy Phoenix, and the upcoming SHA and AGFD’s conservation awareness is a combination of water and land partnership with the Service, we do not and implementation of conservation management actions that can be anticipate there being many actions associated with their PCA and expected to maintain existing riparian consultations along this section of river development of the SHA, we believe habitat, reduce habitat stressors, and that would affect the long-term success there are minimal educational benefits improve areas for nesting flycatchers. of this habitat improvement project. It is attributable to critical habitat beyond Overall, we expect greater flycatcher possible that other projects impacting those achieved from listing the species conservation through these non-federally owned areas within the under the Act and the City of Phoenix’s commitments than through project-by- Tres Rios Area such as the State of continued conservation efforts. project evaluation implemented through Arizona lands might require section 7 In summary, we do not believe that a critical habitat designation. consultation for effects to critical habitat designating flycatcher critical habitat Our collaborative relationship with if they require Federal permitting or use within the Tres Rios Ecosystem the City of Phoenix makes a difference Federal funds. However, outside of the Restoration Area along the Gila River in in our partnership with the numerous implementation of the stream and Maricopa County, Arizona, will provide stakeholders involved with flycatcher habitat restoration actions through the meaningful additional benefits. The City management and recovery and

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influences our ability to form commitments through their PCA and that the benefits of exclusion outweigh partnerships with others. Additional developing SHA support the the benefits of inclusion in the critical evidence of the partnership between the conservation goals established in the habitat designation. City of Phoenix and the Service is Recovery Plan by creating and managing After weighing the benefits of shown by the City of Phoenix’s flycatcher habitat. The principal benefit including the Tres Rios Ecosystem willingness to agree to a long-term of including an area in a critical habitat Restoration Site along the Gila River as commitment, through implementation designation is the requirement for flycatcher critical habitat against the of the 50-year SHA, to assess habitat Federal agencies to ensure actions they benefit of exclusion, we have concluded quality and survey flycatcher habitat on fund, authorize, or carry out are not that the benefits of excluding this Gila an annual basis. Concerns over likely to result in the destruction or River segment outweigh those that perceived added regulation potentially adverse modification of any designated would result from designating this area imposed by critical habitat could harm critical habitat. Our flycatcher section 7 as critical habitat. We have therefore this collaborative relationship. consultation history shows that besides excluded these lands from this final Exclusion of this area from the the implementation of this habitat critical habitat designation pursuant to designation would maintain and restoration project, there have been no section 4(b)(2) of the Act. strengthen the partnership between the other flycatcher-related consultations Service and the City of Phoenix. for this location. We expect to complete Exclusion Will Not Result in Extinction Because so many important lands a consultation for the completion of of the Species—Tres Rios Ecosystem with flycatcher habitat occur on non- SHA in the winter of 2012 or 2013. We Restoration Site federal lands, collaborative have no information to anticipate this We find that the exclusion of the Gila relationships with these landowners limited amount of consultation would River within the Tres Rios Ecosystem will be essential in order to recover the change in the future. Based upon the Restoration Site will not lead to the flycatcher. The flycatcher and its habitat limited number of previous extinction of the flycatcher. The City of are expected to benefit substantially consultations in the Tres Rios Area, Phoenix has developed and committed from voluntary landowner management combined with the long-term through their PCA with the Corps to actions that implement appropriate and commitment to improve stream and long-term management of this property effective conservation strategies. The riparian habitat conditions, we for open space, and wildlife habitat and conservation benefits of critical habitat anticipate that any formal section 7 conservation. The City of Phoenix’s are primarily regulatory or prohibitive consultations conducted on critical developing SHA with the Service also in nature. Where consistent with the habitat would likely result in commits to 50 years of land and water discretion provided by the Act, the discretionary conservation management to this habitat Service believes it is necessary to recommendations. improvement project, and we anticipate implement policies that provide We believe past, present, and future the improved quality of riparian habitat positive incentives to non-federal coordination with the City of Phoenix will result in a conservation benefit for landowners to voluntarily conserve has provided and will continue to the flycatcher. Overall, we expect natural resources and that remove or provide sufficient education regarding greater flycatcher conservation through reduce disincentives to conservation flycatcher habitat conservation needs on these commitments than what could (Wilcove et al. 1996, 1–15; Bean 2002, these lands, such that there would be occur through project-by-project 1–7). Thus, we believe it is essential for minimal additional educational benefit evaluation implemented through a flycatcher recovery to build on or support of other laws and regulations critical habitat designation. As a result continued conservation activities such from designation of critical habitat. of the commitment toward flycatcher as these with a proven partner, and to On the other hand, the benefits of habitat improvement and conservation, excluding Tres Rios Ecosystem provide positive incentives for other we do not expect that exclusion will Restoration portion of the Gila River non-federal landowners who might be result in extinction of the flycatcher. considering implementing voluntary from critical habitat are considerable. conservation activities but have The City of Phoenix’s developing SHA San Luis Valley Management Unit concerns about incurring incidental establishes a framework for cooperation San Luis Valley Conservation regulatory or economic impacts. and coordination with the Service in Partnerships and Habitat Conservation connection with resource management Plan Weighing Benefits of Exclusion Against activities based on appropriate land and Benefits of Inclusion—Tres Rios water management strategies described Two flycatcher critical habitat Ecosystem Restoration Site in the Recovery Plan. Exclusion of these segments were proposed in the San Luis In reaching the conclusion that lands from critical habitat will help Valley Management Unit in Colorado: a benefits of excluding lands within the preserve and strengthen the 159.4-km (99.0-mi) segment of the Rio Gila River Tres Rios Ecosystem conservation partnership we have Grande constituting about 23,330 ha Restoration Site managed by the City of developed with the City of Phoenix, (57,650 ac), and a 69.8-km (43.4-mi) Phoenix outweigh the benefits of reinforce those we are building with segment of the Conejos River inclusion as flycatcher critical habitat, other entities, and foster future constituting about 9,450 ha (23,352 ac) we have weighed the benefits of partnerships and development of (76 FR 50542, August 15, 2011, p. including these lands as critical habitat management plans. We are committed 50576). The proposed critical habitat in with the implementation of their SHA to working with the City of Phoenix to the San Luis Valley included federal management plan against the same further flycatcher conservation and lands managed by the BLM and the situation without critical habitat. other endangered and threatened Alamosa portion of the Alamosa, Monte Including this Tres Rios Ecosystem species. Therefore, in consideration of Vista, and Baca NWR Complex. For the Restoration segment of the Gila River as the relevant impact to our partnership reasons explained below, we are flycatcher critical habitat would result with the City of Phoenix, and their excluding the non-Federal portions of in minimal, if any additional anticipated fulfillment of a long-term proposed critical habitat (Rio Grande; incremental regulatory benefits to the commitment to implement conservation 119.5 km, 74.3 mi and Conejos River; flycatcher. The long-term management management practices, we determine 64.9 km, 40.4 mi) in the San Luis Valley

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Management Unit of the flycatcher District will be the administrator of the Rio Grande and 724. 4 ha (1,797.4 ac) based on conservation partnerships in SLVRHCP, which was completed in under conservation easements for the the San Luis Valley evidenced by the November 2012. Conejos River, comprising about 11.2 newly completed San Luis Valley The covered activities are estimated to percent of non-federal lands included in Regional Habitat Conservation Plan impact 123 ha (304 ac) that will be the designation within the San Luis (SLVRHCP) and many additional mitigated at a 1:1 ratio by the Valley. Additionally, there are 984.7 ha conservation partnerships with applicants. Mitigation will be in the (2,433.2 ac) of non-federal lands numerous entities in the San Luis form of conservation easements, habitat designated as critical habitat within Valley. We are not excluding the federal restoration and enhancements, and State Wildlife Areas along the Rio lands within the San Luis Valley management agreements. The majority Grande and 64.0 ha (158.1 ac) of the Management Unit. of covered activities are expected to Conejos River within State Wildlife impact narrow habitat patches or Areas, comprising about 3.2 percent of San Luis Valley Regional Habitat otherwise marginal habitat for the Conservation Plan the non-federal lands included within flycatcher. Consequently, mitigation the designation within the San Luis The species covered in the SLVRHCP measures will conserve, restore, or Valley. Other conservation partnerships are the flycatcher and a candidate enhance habitat to a higher quality for actions are described in the text below. species, the western U.S. distinct flycatchers than the impacted habitat. The local communities of the San population segment of the yellow-billed This mitigation strategy will provide Luis Valley have a history of proactive cuckoo (Coccyzus americanus). The riparian habitat essential to maintaining and collaborative conservation dating SLVRHCP covers nearly 400 stream km all physical or biological features or back to the establishment of the Great (250 mi) constituting 1.17 million ha primary constituent elements necessary Sand Dunes National Monument in (2.9 million ac) and extends well to sustain flycatcher populations. 1932. These efforts have led to the beyond the stream segments on the Rio As part of implementing the establishment of the Alamosa and Grande and Conejos River that were SLVRHCP, the District will actively Monte Vista NWRs, local habitat proposed as critical habitat. provide outreach to landowners, local protection efforts, numerous private The SLVRHCP covers three categories communities, private and public conservation programs, and the of activities: (1) Routine agriculture utilities, and other stakeholders to acquisition of the Baca Ranch to allow activities (grazing, fence construction provide them with the information and the creation of the Baca NWR and Great and maintenance, ditch clearing and tools to develop an understanding of Sand Dunes National Park and Preserve. maintenance, water facility this SLVRHCP. Outreach objectives The legacy of these ongoing efforts is maintenance, new small-scale water include explaining the benefits to found in the existing mosaic of facility construction, and water landowners and the community, protected lands that sustain the rare management and administration); (2) reducing the long-term impacts of species such as the flycatcher in the San small community infrastructure covered and non-covered activities on Luis Valley, and are enhanced through activities (vegetation removal from riparian habitat, and gaining support for the SLVRHCP’s strategic and floodways, levee construction and SLVRHCP mitigation programs. collaborative conservation approach. In maintenance, sediment removal, Significant outreach efforts are to be the following discussion, we describe infrastructure construction, carried out by the District within the ongoing conservation partnerships in infrastructure maintenance, and road first 6 months of implementation of the four categories: conservation programs and bridge maintenance); and (3) SLVRHCP. and initiatives, conservation easements, riparian conservation and restoration Both compliance and effectiveness State Wildlife Areas, and riparian and activities (channel shaping and monitoring are built into the SLVRHCP. wetlands restoration efforts. stabilization, habitat creation and Valley-wide habitat monitoring as well restoration, weed management, and as parcel-specific habitat monitoring Conservation Programs and Initiatives wetland creation and management). and species monitoring will be Conservation Programs—San Luis Large commercial or residential conducted and will be used to Valley Wetlands Focus Area Committee developments, large water development determine if management needs to be projects, sanitation or industrial water adapted to successfully mitigate covered The San Luis Valley Wetlands Focus impoundments, new highway activities and maintain habitat into the Area Committee (WFAC) was formed as construction, and projects on non- future. an advisory group to the Colorado Federal lands requiring a Federal permit Department of Wildlife, now Colorado are not covered by the SLVRHCP. Additional San Luis Valley Parks and Wildlife (CPW) in 1990. The Service cooperated with the Conservation Partnerships When the CPW created its Statewide SLVRHCP permittees for 9 years in This section describes the many Colorado Wetlands Program and development and review of the ongoing conservation partnership efforts Wetlands Initiative (now Wetland SLVRHCP. The permit applicants (in addition to the SLVRHCP) in the San Wildlife Conservation Program), WFAC include the Rio Grande Water Luis Valley that protect and enhance groups were formed within the San Luis Conservation District (District); wetland and riparian habitat, and Valley to provide a Valley-wide forum Alamosa, Conejos, Costilla, Rio Grande, contribute to the conservation and for wetlands and riparian conservation Mineral and Saguache Counties; the enhancement of habitat for the ideas and research, raise funds, and municipalities of Alamosa, Del Norte, flycatcher. In total, the conservation optimize collaboration and avoid Monte Vista, and South Fork; and the partnerships discussed below cover the duplication amongst conservation State of Colorado Department of Natural entire San Luis Valley and the entire groups. The WFAC group includes Resources. The State of Colorado extent of the two proposed critical several local conservation organizations: received section 6 planning grants habitat units, except for the Federal the Federal, State, and local land under the Act on behalf of the District lands discussed above. Combined, there management and wildlife agencies; in 2004, 2005, and 2009 for the District are 2,950.4 ha (7,290.4 ac) of non-federal water and soil conservation districts; and their consultants to complete the lands designated as critical habitat and numerous local farmers, ranchers, HCP and associated documents. The under conservation easements along the and interested citizens. Since a large

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extent of the Valley’s water and includes all 38.9 km (24.2 mi) south of to the specific parameters of the wetlands are components of private Alamosa NWR, which includes 17.5 km easement. Easement terms and agricultural operations, the WFAC (10.8 mi) of private land and 21.4 km management requirements vary between works closely with private landowners (13.4 mi) of BLM land, constituting properties, and are developed on a case- to enhance and sustain wetlands and 1,833.3 ha (4,530.2 ac) of proposed by-case basis, although, at a minimum, riparian areas. The collaborative work critical habitat. the easements preclude development in helps to conserve wetlands thus The Rio Grande Natural Area Act riparian areas. Of the numerous conserving essential riparian habitat for required assembly of a commission to conservation easements throughout the the flycatcher. facilitate implementation of the Natural San Luis Valley, several include Area Act. The Rio Grande Natural Area flycatcher habitat. The acreage of Conservation Programs—Rio Grande Commission is composed of nine conservation easements within Initiative members including the BLM Colorado proposed flycatcher critical habitat is In 2006, the WFAC and the Rio State Director; Alamosa/Monte Vista/ described above. Grande Headwaters Land Trust (RiGHT) Baca NWR Complex Manager; As of July 2012, 9,087.8 ac (3,677.8 began a focused effort to protect and representatives from the Colorado ha) of riparian habitat within proposed improve riparian and wetland habitat on Division of Wildlife (CPW), Colorado critical habitat was protected by private lands along the Rio Grande by Division of Water Resources, Rio Grande conservation easements (ERO Resources implementing conservation easements Water Conservation District; and four Corporation 2012). Out of this acreage, or other means. The Rio Grande members of the public. 7,290.4 ac (2,950.4 ha) is on the Rio Initiative is a partnership between The Natural Area Act also calls for the Grande, and 1,797.4 (727.4 ha) is on the RiGHT, Ducks Unlimited, The Nature development of Natural Area Conejos River. Protected riparian habitat Conservancy (TNC), the Colorado Management Plans. The BLM and the within conservation easements on Cattleman’s Agricultural Land Trust Commission are preparing two private lands constitutes about 11.2 (CCALT), and others. The goal of the Rio management plans, one for BLM land percent of proposed critical habitat Grande Initiative is to work with and one for private lands. The Natural overall, or 12.7 percent on the Rio individual landowners to voluntarily Area Act directs the management plans Grande and 7.7 percent on the Conejos protect land and habitat along the Rio to include the following: River. These conservation easements Grande corridor (see Conservation • Consideration of other Federal, provide long-term conservation Easements section below for more State, and local plans. flycatcher habitat in the areas where details). • Measures that encourage county they occur. A further description of Since its initiation, the Rio Grande governments (Costilla and Conejos these conservation easement holders Initiative partners have raised more than Counties) to adopt and implement land and the amount of land under easement $10 million dollars in Federal, State, use policies that are consistent with the is provided below. and private funding and have protected management of the Natural Area. over 18 properties and 5,504 ha (13,600 • Measures to encourage and assist Conservation Easements—Rio Grande ac) of land along the Rio Grande, some private landowners in the Natural Area Headwaters Land Trust (RiGHT) of which is within proposed critical with the implementation of the RiGHT focuses on the protection of habitat. Notable conservation successes management plan. agricultural land and water resources, within the area proposed as flycatcher • A list of property that should be and is the only locally based land trust critical habitat area include the River preserved, restored, managed, that operates in the San Luis Valley. Valley Ranch I (237 ha, 585 ac) near the developed, maintained, or acquired to Priority areas include the Rio Grande Rio Grande-Shriver-Wright SWA, the further the purposes of the natural area. corridor and the Rock Creek corridor to 415-ha (1,025-ac) Gilmore Ranch near • Policies for resource management to the west of the Monte Vista NWR. Alamosa, and the 1,352-ha (3,341-ac) protect the resources and natural values RiGHT has been the lead entity in the Cross Arrow Ranch at the confluence of of the Natural Area. Rio Grande Initiative and holds the Rio Grande and Conejos River. The Rio Grande Natural Area easements on about 213.5 ha (527.6 ac) These conservation easements will planning and implementation process of land within proposed critical habitat. conserve flycatcher habitat. will provide an additional framework for riparian habitat conservation and Conservation Easements—Ducks Conservation Programs—Rio Grande management along the Rio Grande, Unlimited Natural Area including the high-quality habitat areas Ducks Unlimited currently holds On October 12, 1996, the Rio Grande south of the Alamosa NWR. easements on eight properties totaling Natural Area Act was signed into law Management of the Natural area serves about 225.5 ha (557.1 ac) within (Pub. L.109–337; 16 U.S.C. 460). The to conserve flycatcher habitat in the area proposed critical habitat along the Rio Rio Grande Natural Area Act established we proposed as critical habitat. Grande corridor. Ducks Unlimited is conservation along a 53-km (33-mi) focusing on the Rio Grande corridor to Conservation Easements stretch of the Rio Grande from the protect its important wetland and southern boundary of the Alamosa NWR Conservation easements are riparian habitat and is a partner in the to the New Mexico State line, extending restrictions that landowners voluntarily Rio Grande Initiative. 0.4 km (0.25 mi) on either side of the place on their properties to protect river. The purpose of the Natural Area environmental resources and restrict Conservation Easements—Other is to conserve, restore, and protect the future development. Easements are Other conservation easements also natural, historic, cultural, scientific, generally held by a qualified exist within proposed critical habitat. scenic, wildlife, and recreational conservation organization (for example TNC holds an easement on about 400 ha resources along the Rio Grande. The a land trust) or Federal or local (1,000 ac) of the Gilmore Ranch near Natural Area includes about 4,000 ha government entity, and are usually Alamosa on the Rio Grande. As part of (10,000 ac) of both Federal (BLM) and granted in perpetuity. Conservation the Rio Grande Initiative, the Colorado private land. With regards to proposed easements allow continued private Cattleman’s Agricultural Land Trust critical habitat, the Natural Area ownership and use of the land, subject holds a 650-ha (1,600-ac) easement

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within proposed critical habitat in Rio culminated in over 8.1 km (5 mi) of Federal nexus would likely have to Grande County on the Rio Grande. The habitat restoration that has benefited the evaluate the impacts of their future Natural Resources Conservation Service flycatcher. A diversion replacement projects under a section 7 consultation has several existing and numerous project within proposed critical habitat using the jeopardy standard. The Corps, potential conservation easements on a has recently been initiated that will BLM, NRCS, and other Federal agencies variety of properties providing riparian benefit flycatcher habitat by restoring have already addressed the flycatcher in habitat in the Valley. Most of these 600 m (2,000 feet) of riparian habitat past section 7 consultations concerning easements and potential easements are and a 0.8-ha (2-ac) wetland beneficial to land management actions on federal and along the Rio Grande between Del Norte the flycatcher (Rio Grande Headwaters non-federal lands within the San Luis and the Conejos River confluence. The Restoration Project 2012, entire). Valley. We expect these agencies would likely consult for future activities that existing conservation easements cover Habitat Improvement—Partners for Fish would affect flycatcher critical habitat. about 26.9 ha (66.5 ac) of land in and Wildlife proposed critical habitat. These consultations are usually resolved The Service’s Partners for Fish and at an ‘‘informal’’ level, as the Federal State Wildlife Areas Wildlife program (PFW) has supported agencies typically design their projects The State of Colorado has SWAs or habitat protection and enhancement to avoid adverse effects to the other State lands that are covered under efforts, including conservation flycatcher. All of the area being the SLVRHCP. SWAs are managed easements and habitat improvement considered for exclusion is either specifically for conservation of wildlife. projects, on numerous properties in the privately owned or is owned by a State SWA land within proposed critical San Luis Valley. The PFW program uses or other non-Federal entity. In contrast habitat includes a total of 1,048.7 ha Federal money to help private to Federal lands, the occurrence of a (2,591 ac), including 984.7 ha (2,433.2 landowners restore, enhance, and federal nexus on private lands are less ac) on the Rio Grande (two SWAs) and conserve important wildlife habitat. A frequent and are typically more 64.0 ha (158.1 ac) on the Conejos River major focus of this program in the San associated with site-specific actions (one SWA). CPW does not have any Luis Valley is on conservation of permitted by the Corps or with project flycatcher-specific management plans in riparian habitats, primarily in areas funding from the NRCS. As a result, this their SWA plans, but their goal is to north of the Town of Alamosa. The reduces the extent of the potential keep the riparian and wetland habitat Service enters into contracts with regulatory benefit of including these on the SWAs intact and functioning landowners to provide financial non-federal areas in the critical habitat (Basagoitia 2012, pers. comm.). This assistance in exchange for specified designation. Therefore, in the case of the management will provide benefits by conservation measures such as flycatcher habitat on non-Federal lands conserving flycatcher habitat. excluding grazing and fencing riparian (State, local government, and private areas. The lengths of the contracts vary lands) in the San Luis Valley, we Riparian and Wetlands Restoration from a few years to perpetual easements; believe the incremental benefits of Efforts most contracts are for 10 years. critical habitat designation are minimal Restoration—Rio Grande Headwaters Within proposed critical habitat, PFW when compared to the conservation and Restoration Project easements or contracts cover regulatory benefits already derived from approximately 825.6 ha (2,040 ac), the species being listed. The Rio Grande Headwaters which includes 603 ha (1,490 ac) along Another important benefit of Restoration Project (Restoration Project) the Rio Grande and 222.6 ha (550 ac) including lands in a critical habitat has been active since 1999. In 2001, the along the Conejos River. These projects designation is that the designation can Restoration Project completed a study to typically involve habitat management serve to educate landowners, agencies, determine what was needed to improve efforts including riparian fencing, tribes, and the public regarding the the river. The focus of the study and deferred grazing, and water control potential conservation value of an area, restoration include the Rio Grande from structures that allow for natural and may help focus conservation efforts the upstream corporate limit of the regeneration. Willow plantings are also on areas of high conservation value for Town of South Fork, Colorado, to the conducted where warranted. Flycatcher certain species. Any information about Alamosa-Conejos County line. In 2004, habitat is conserved by these PFW the flycatcher that reaches a wide a Rio Grande Watershed Strategic Plan agreements. audience, including parties engaged in was developed to implement needs conservation activities, is valuable. The Benefits of Inclusion—San Luis Valley identified in the 2001 study. The designation of critical habitat for the Conservation Partnerships Strategic Plan takes a comprehensive flycatcher in the San Luis Valley may approach to the river’s functions; its As discussed above under strengthen or reinforce some Federal goals include maintaining or improving Application of Section 4(b)(2) of the Act, laws such as the Clean Water Act. These water quality, timing stream flows to Federal agencies, in consultation with laws analyze the potential for projects to mimic a natural hydrograph, improving the Service, must ensure that their significantly affect the environment. the function and reliability of diversion actions are not likely to jeopardize the Critical habitat may signal the presence structures, protecting the 100-year continued existence of any listed of sensitive habitat that could otherwise floodplain from flood damage and species or result in the destruction or be missed in the review process for development impacts, maintaining or adverse modification of any designated these other environmental laws. enhancing river function to provide critical habitat of such species. The The areas being excluded have a long recreation opportunity, complementing difference in the outcomes of the history of conservation, including for efforts of other agencies and groups, and jeopardy analysis and the adverse the benefit of the flycatcher. Therefore, seeking funding to implement the modification analysis represents the most landowners are already aware of projects. The Restoration Project has regulatory benefit and costs of critical the need for the conservation of the raised over $2,000,000 in grants for six habitat. species and its habitat. In addition, the cost-share riparian stabilization projects Because the flycatcher occurs within outreach efforts that are forthcoming at 29 sites within the area proposed as the Rio Grande and Conejos River from the SLVRHCP will provide an critical habitat. These efforts have corridors, project proponents with a enhanced effort for public outreach to

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benefit flycatcher conservation. These achieving recovery of the flycatcher. We The Benefits of Exclusion Outweigh the existing and future outreach efforts will also learn more about the status of Benefits of Inclusion—San Luis Valley minimize the educational benefits that the flycatcher on non-Federal lands Conservation Partnerships would be gained by designating the through implementing the SLVRHCP, The benefits of including the non- areas as flycatcher critical habitat. providing a basis to pursue further federal portions of the San Luis Valley In summary, we do not believe that recovery actions such as habitat critical habitat units in the designation designating flycatcher critical habitat protection, restoration, and other are small and are outweighed by the within the non-Federal lands of the San beneficial management actions for the regulatory, educational, and ancillary Luis Valley along the Rio Grande and flycatcher. Without the SLVRHCP, we benefits already afforded through the Conejos River in Colorado will provide likely would not have access to private SLVRHCP, CPW management, and meaningful additional benefits. There lands to conduct surveys if the land was partnership actions. The SLVRHCP already exists long-term commitment to designated as critical habitat. provides for conservation and implement habitat improvement and The efforts and funding to date in land and water management actions in development of the SLVRHCP, as well management of the areas that contain the San Luis Valley, which were as the history of conservation efforts the physical or biological features recently reinforced with the SLVRHCP. through additional partnerships, essential to flycatcher conservation and The ongoing efforts are the types of demonstrate the commitments of the will help achieve recovery of this actions recommended in the Recovery San Luis Valley residents to provide for species. Exclusion of these lands from Plan to conserve the flycatcher. Because flycatcher conservation and the growth critical habitat will help preserve the of these long-term stream and riparian and persistence of its habitat. A partnerships we have developed with habitat improvement commitments, we considerable benefit of excluding non- the SLVRHCP applicants, other do not anticipate future federally Federal lands in the San Luis Valley as stakeholders, and project proponents funded actions reversing these habitat flycatcher critical habitat is the and may foster future partnerships to improvements. As a result of the maintenance and strengthening of the benefit of the flycatcher and other ongoing habitat conservation efforts, ongoing conservation partnerships. species. The SLVRHCP applicants and there is a low probability of mandatory These partnerships benefit the associated stakeholders have informed elements arising from formal section 7 flycatcher as well as habitat for other us that designating critical habitat consultations and, therefore, any sensitive and non-listed species by within the SLVRHCP permit area will outcome from a critical habitat providing opportunities for harm the working relationship created designation would more likely result in conservation, management, and by the partnership and undermine the discretionary conservation restoration on non-Federal lands that conservation efforts that are already recommendations. We also believe that would not exist absent these strong underway. Thus, the San Luis Valley the informational benefits have already partnerships. partnerships provide a greater benefit to occurred through past actions and The success of the CPW management the flycatcher than would be provided inclusion of the flycatcher within the on SWAs has resulted in flycatcher by designating critical habitat. SLVRHCP. Therefore, the incremental habitat protection and the occurrence of After weighing the benefits of benefits of a flycatcher critical habitat one of the largest nesting sites within including the non-Federal lands along designation for the San Luis Valley the San Luis Valley Management Unit. the Rio Grande and Conejos River as would be minimal. Exclusion of SWAs or other State land flycatcher critical habitat against the from the designation would maintain, benefit of exclusion, we have concluded Benefits of Exclusion—San Luis Valley and strengthen the partnership between that the benefits of excluding these Conservation Partnerships the Service and CPW. segments outweigh those benefits that The proposed critical habitat The flycatcher and its habitat are would result from designating this area segments on the Rio Grande and expected to benefit substantially from as critical habitat. We have therefore Conejos River have been the focus of voluntary landowner management excluded these lands from this final conservation related activities for a actions that implement appropriate and critical habitat designation pursuant to number of years due to the species’ effective conservation strategies. The section 4(b)(2) of the Act. listing, ongoing development of the conservation benefits of critical habitat Exclusion Will Not Result in Extinction SLVRHCP, and additional conservation are primarily regulatory or prohibitive of the Species—San Luis Valley partnerships in the area as described in nature. Where consistent with the Conservation Partnerships above. Excluding the non-Federal lands discretion provided by the Act, the along the Rio Grande and the Conejos Service believes it is necessary to We find that the exclusion of the non- River in Colorado from the critical implement policies that provide Federal lands along the Rio Grande habitat designation will sustain and positive incentives to non-Federal (119.5 km, 74.3 mi) and Conejos River enhance the conservation partnerships landowners and land managers to (64.9 km, 40.4 mi) will not lead to the between the Service and the applicants voluntarily conserve natural resources extinction of the flycatcher. The for the SLVRHCP. Both the District and and that remove or reduce disincentives SLVRHCP has committed numerous the Conejos Water Conservancy District to conservation (Wilcove et al. 1996, 1– entities to engage in management and submitted public comment letters on the 15; Bean 2002, 1–7). Thus, we believe it conservation efforts that are expected to proposed critical habitat designation is essential for flycatcher recovery to develop, maintain, and manage riparian stating that designating critical habitat build on continued conservation habitat for the benefit of flycatchers. would harm these working activities such as these with proven Overall, we expect greater flycatcher relationships. The willingness of the partners, and to provide positive conservation through these District and other applicants to work incentives for other non-Federal land commitments than what could occur with the Service through the SLVRHCP managers who might be considering through project-by-project evaluation on ways to mitigate and manage habitat implementing voluntary conservation implemented through a critical habitat for the flycatcher will continue to activities but have concerns about designation. As a result of the reinforce incentives for conservation incurring incidental regulatory or commitment toward flycatcher habitat efforts and thus contribute towards economic impacts. improvement and conservation, we do

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not expect that exclusion will result in was constructed by the USBR including Grande is already providing habitat extinction of the flycatcher. the canals, laterals, drains, waste-ways, benefits to the flycatcher. operation and maintenance roads on Although many organizations are Upper Rio Grande Management Unit both riverbanks, and structures. State currently partnering to implement San Ildefonso Pueblo Management Plan statutes provide for the equitable flycatcher habitat improvement efforts, Please see the end of this section for distribution of water from the Elephant the key factor in creating and a discussion about tribes from the Little Butte Reservoir to all of its water users maintaining flycatcher habitat is the Colorado, San Juan, Verde, Upper Gila, and generally govern how EBID operates ability to periodically inundate the and Upper Rio Grande Management and manages the water it provides to its riparian vegetation with water from the Units that submitted Management Plans. users. Rio Grande. IBWC and other partners do Prior to the listing of the flycatcher, not own the water rights necessary to Santa Clara Pueblo Partnership IBWC’s management of the lower Rio provide water to the sites where Please see the end of this section for Grande emphasized canalization to restoration efforts are occurring. a discussion about our tribal facilitate efficient water deliveries and Therefore EBID and EP#1 are conservation partnership from the flood control. As a result, the channel voluntarily working with the National Upper Rio Grande Management Unit. narrowed and degraded, with limited Fish and Wildlife Foundation (NFWF) areas for overbank flooding to support to develop a water transaction program San Juan Pueblo (Ohkay Owingeh) expansive native riparian communities. that will allow IBWC and other partners Partnership The vast majority of floodplains, which to purchase or lease water that can be Please see the end of this section for would have formerly supported native used to flood flycatcher riparian habitat a discussion about our tribal riparian vegetation, including some similar to an agricultural crop. Because conservation partnership from the flycatcher habitat, are now subject to of the importance of water to develop Upper Rio Grande Management Unit. substantial human impacts by and maintain flycatcher habitat, agriculture, urbanization, recreation, participation by EBID is crucial to the Lower Rio Grande Management Unit vegetation encroachment and continued habitat improvement of this Elephant Butte Irrigation District management, grazing, fire, and other river reach for the benefit of the Canalization and Conservation Project stressors. flycatcher. The water transaction The lower Rio Grande Canalization program by EBID will allow for a greater In New Mexico, along the lower Rio and Conservation Project includes 30 number of acres to become flycatcher Grande downstream of Caballo Dam, the riparian improvement sites, 12 of which habitat. Elephant Butte Irrigation District (EBID) are specifically designed to create The IBWC management plan will also and the El Paso County Water flycatcher nesting habitat across 69 ha manage flycatcher breeding habitat and Improvement District No. 1 (EP#1) (171 ac). These habitat improvement implement measures to protect nesting manages the water from the Rio Grande sites are to be established by 2019. sites from human disturbance during stored in Elephant Butte Reservoir for Additionally, the practice of mowing the breeding season, and protect against agricultural use, and the International willow trees will cease, which should detrimental edge effects by not mowing Boundary and Water Commission also add to the distribution and willows in their right-of-ways. With (IBWC) (a Federal Agency) is abundance of riparian vegetation. Plus, riparian habitat restoration and the responsible for maintaining levees and willow trees will be planted in areas ability to provide water and protection channel irrigation facilities, and with favorable hydrological conditions, to these sites, the recovery goals for the floodway management needed to deliver and flycatcher surveys will occur, as Lower Rio Grande Management Unit water from the Rio Grande to water will vegetation monitoring. Restoration can be met. rights holders downstream. Together, efforts will also physically reconnect The number of flycatcher territories the EBID, EP#1, and IBWC are planning old river channels and lower incised detected annually in this reach from a large-scale riparian habitat banks to the main river channel where 1993 to 2010 ranged from 0 to 9 (Durst improvement project along the lower appropriate. et al. 2008; Service 2012, pp. 33–34). Rio Grande from Percha Dam to As part of the Canalization and The number of territories detected has American Dam (termed the lower Rio Conservation Project, IBWC will work been relatively stable; however fire and Grande Elephant Butte Irrigation District with other partners to implement a other vegetation changes likely reduced Canalization and Conservation Project). flycatcher management plan for the the quality habitat at Selden Canyon, as Within this portion of the lower Rio lower reach of the Rio Grande that no detections were reported in 2010 Grande, we proposed a 74.2-km (46.1- requires flycatcher habitat goals be (Service 2012a, p. 33–34). mi) segment from Caballo Dam to Ft. maintained throughout the reach. The IBWC has sponsored recent flycatcher Selden as flycatcher critical habitat. goal is to provide flycatcher habitat in surveys along the lower Rio Grande The lower Rio Grande south of the Lower Rio Grande Management (Blackburn 2010, p. 1–3; 2011, p. 1–4) Caballo Reservoir is managed by the Unit, while still delivering water, as resulting in an increase in the overall IBWC, whose mission is to provide bi- required by IBWC and EBID. IBWC, survey efforts, known breeding sites, national solutions to issues that arise USBR, EP#1, and EBID, along with the and estimated total number of during the application of United States- San Andres NWR, New Mexico State territories. Blackburn (2010, p. 1–3; Mexico treaties regarding boundary Parks (NMSP), the New Mexico 2011, p.1–4) identified additional demarcation, national ownership of Interstate Stream Commission (ISC), and territories on or near Bailey’s Point Bar waters, sanitation, water quality, and New Mexico Audubon have partnered and near Crow Canyon. In 2012, a total flood control in the border region. Water to establish flycatcher habitat in this of 25 territories were detected, enough deliveries to downstream water users for reach of the river. Several planting to meet the numerical territory recovery irrigation and other purposes are projects have placed hundreds of young goal in the Lower Rio Grande managed by EBID (a quasi-municipal cottonwood trees on the floodways Management Unit (Hill, D. 2012, pers. agency of the State of New Mexico). between the levees. The concerted effort comm.). This increase may reflect EBID operates, maintains, and owns the by multiple agencies and groups to survey effort, as well as an increase in irrigation distribution system, which improve habitat in this reach of the Rio riparian habitat quality following the

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reduction of grazing and habitat mowing the Recovery Plan. Any future federal toward flycatcher recovery; and (3) the (SWCA Environmental Consultants projects implemented by other agencies development of a water transaction 2011, p. 16). Also, dispersal of with less prominent responsibilities program that provides irrigation water flycatchers pioneering new breeding along the lower Rio Grande, such as to flycatcher restoration sites that might areas originating from the nearby large Federal Highway Administration, or not otherwise occur. The restoration population from the Middle Rio Grande from the BLM on surrounding lands, activities and conservation objectives Management Unit may have also would require evaluation using the created by IBWC and other non-federal contributed. jeopardy standard under section 7 of the partners is currently meeting the Act. However, because flycatchers occur flycatcher territory recovery goal Benefits of Inclusion—Canalization and along the lower Rio Grande and due to component described in the Recovery Conservation Project the long-term and extensive flycatcher Plan, and is expected, with improved As discussed above under habitat conservation benefits resulting water availability to vegetation, to meet Application of Section 4(b)(2) of the Act, from the EBID’s Canalization and the habitat-related recovery goal for this Federal agencies, in consultation with Conservation Project, the incremental Management Unit. the Service, must ensure that their benefits of designating critical habitat EBID’s constituents view critical actions are not likely to jeopardize the from Caballo Dam to Leasburg Dam are habitat designation as an intrusion on continued existence of any listed limited. their abilities to manage their water species or result in the destruction or Another important benefit of rights. Through fostering a cooperative adverse modification of any designated including lands in a critical habitat working relationship with EBID, IBWC critical habitat of such species. The designation is that the designation can and others conducting surveys and difference in the outcomes of the serve to educate landowners, agencies, habitat monitoring, and undertaking jeopardy analysis and the adverse tribes, and the public regarding the habitat restoration and enhancement modification analysis represents the potential conservation value of an area, projects, are realizing flycatcher regulatory benefit and costs of critical and may help focus conservation efforts conservation benefits. Without EBID’s habitat. on areas of high conservation value for support in carrying out these restoration The Rio Grande within the Lower Rio certain species. Any information about efforts and implementing the water Grande Management Unit area is known the flycatcher that reaches a wide transaction program, significant to be occupied by flycatchers and has audience, including parties engaged in conservation benefits to the flycatcher undergone section 7 consultation under conservation activities, is valuable. The could be lost. For these reasons, we the jeopardy standard related to the designation of critical habitat may also believe that fostering our working lower Rio Grande Elephant Butte strengthen or reinforce some Federal relationship with EBID and their Irrigation District Canalization and laws such as the Clean Water Act. These constituents is important to maintain Conservation Project. There may be laws analyze the potential for projects to flycatcher conservation benefits. some minor benefits from the significantly affect the environment. As a result of the amount of important designation of critical habitat along the Critical habitat may signal the presence flycatcher recovery areas located on lower Rio Grande, primarily because it of sensitive habitat that could otherwise private lands or with non-federal would require Federal agencies to be missed in the review process for resources, proactive voluntary perform additional review of their these other environmental laws. conservation efforts have and will project implementation. While this area We believe that there would be little continue to be important to achieve was not previously designated as educational and informational benefit flycatcher recovery. As the water flycatcher critical habitat, the IBWC (the gained from including the Lower Rio manager for the lower Rio Grande, primary federal agency affecting Grande within the designation because EBID’s willingness to participate and flycatcher habitat along the lower Rio this area is well known as an important coordinate the water transaction Grande) has already undergone section area for flycatcher management and program is crucial to creating successful 7 consultation under the jeopardy recovery. For example, the collection of flycatcher restoration sites. Their standard due to the occurrence of federal agencies and stakeholders agreement to work with IBWC, NFWF, flycatchers along the lower Rio Grande. integral to water and land management and others demonstrates that If this segment were designated as along the lower Rio Grande are involved meaningful, collaborative, and flycatcher critical habitat, IBWC would in conducting flycatcher surveys, have cooperative work for the flycatcher and likely reinitiate consultation on their previously initiated section 7 its habitat will continue within their ongoing management responsibilities. consultation, and have planned and are jurisdiction. The development of the Because one of the primary threats to implementing flycatcher conservation water transaction program may not the flycatcher is habitat loss and actions. Consequently, we believe that occur if critical habitat were designated. degradation, section 7 consultation the informational benefits and support Therefore, we believe that the results of process under the Act would evaluate for implementing other environment these voluntary restoration activities effects of the action on flycatcher regulations have already occurred will promote long-term protection and habitat. With the implementation of the through past actions even though this conserve the flycatcher and its habitat flycatcher conservation actions included area is not designated as critical habitat. within the lower Rio Grande in the Canalization and Conservation Management Unit. The benefits of Project, which are expected to result in Benefits of Exclusion—Canalization and excluding this area from critical habitat more breeding habitat, territories, Conservation Project will encourage the continued breeding pairs, and nesting success, we The benefits of excluding the lower cooperation and development of the concluded the project would not Rio Grande between Caballo Dam to water transaction program, which will jeopardize the flycatcher or adversely Leasburg from designated critical allow IBWC to provide water to the modify proposed critical habitat habitat include: (1) Continued and flycatcher restoration sites. If this area is (Service 2012a, pp. 61–62). We also strengthened effective working designated as critical habitat, we believe concluded that these flycatcher relationships with IBWC, EBID, it is unlikely that EBID’s constituents conservation actions would support the Audubon, and other stakeholders and will support the water transaction habitat and territory goals established in partners; (2) meaningful collaboration program.

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Excluding the lower Rio Grande area management plan, along with our close designating these occupied areas as that is within the jurisdiction of IBWC coordination with IBWC, EBID and flycatcher critical habitat are minimal. from the critical habitat designation will other partners, addresses the identified Furthermore, the conservation provide significant benefits to the threats to flycatchers and the objectives identified by the IBWC Plan, flycatcher through sustaining and geographical areas that contain the in conjunction with our partnership enhancing the working relationship physical or biological features essential with the EBID and others, will provide between the Service, IBWC, EBID, and to its conservation. a greater benefit to the species than other stakeholders. The willingness of Exclusion of these lands from critical critical habitat designation. We also IBWC and EBID to work with the habitat will help preserve the conclude that the educational and Service on innovative ways to manage partnerships we have developed with ancillary benefits of designating critical the flycatcher and develop flycatcher local jurisdictions and project habitat for the flycatcher between habitat will reinforce our partnership, proponents through the development Caballo and Leasburg Dams would be which is important in order to achieve and ongoing implementation of their minor because of the partnership flycatcher recovery. We can often conservation plan. These partnerships established between the Service and achieve greater conservation through are focused on flycatcher conservation IBWC, and the management objectives voluntary actions than through and securing conservation benefits that identified in the biological assessment implementing a critical habitat will lead to recovery. Furthermore, and biological opinion. Therefore, in regulation on a project-by-project basis. these partnerships aid in fostering consideration of the relevant impact to By excluding the Rio Grande south of future partnerships for the benefit of current and future partnerships, as Caballo Dam in New Mexico from listed species that do not occur on summarized in the Benefits of Exclusion critical habitat designation, we are also Federal lands and thus are less likely to section above, we determined the encouraging new partnerships with result in a section 7 consultation. significant benefits of exclusion other landowners and jurisdictions to Because we now have a sustainable outweigh the benefits of critical habitat protect the flycatcher and other listed or flycatcher population along the lower designation. sensitive species. We consider this Rio Grande, we are relying on the voluntary partnership in conservation conservation efforts of the many Exclusion Will Not Result in Extinction vital to our understanding of the status stakeholders to create, manage, and of the Species—Canalization and of species on non-Federal lands and maintain flycatcher habitat to contribute Conservation Project necessary for us to implement recovery to reaching recovery goals. We expect We determine that the exclusion of actions such as habitat protection and that the results of implementing these the lower Rio Grande between Caballo restoration, and beneficial management flycatcher conservation actions will Dam and Leasburg Dam from the actions for species. generate benefits beyond those that designation of critical habitat for the could be achieved from project-by- flycatcher will not result in extinction of Benefits of Exclusion Outweigh the project evaluation through a critical the species because current Benefits of Inclusion—Canalization and habitat designation. conservation efforts under IBWC’s Conservation Project The conservation gains to the restoration plan adequately protects the We have reviewed and evaluated the flycatcher identified south of Caballo geographical areas containing the lower Rio Grande from Caballo Dam to Dam are more beneficial than physical or biological features essential Leasburg Dam in New Mexico, and have designation of critical habitat because of to flycatcher conservation. In our concluded that the benefits of exclusion the development of the water biological opinion, the Service under section 4(b)(2) of the Act transaction program. This explicit determined that implementation of the outweigh the benefits of including these benefit will not be realized without IBWC Canalization and Conservation areas as flycatcher critical habitat. The EBID’s voluntary participation. The Project and associated flycatcher incremental regulatory benefits of water users (farmers), who are currently restoration plans was not likely to result including these lands within the critical supportive of the restoration efforts in in jeopardy to flycatcher or adversely habitat designation are minimized the southern reach of the Rio Grande, modify proposed critical habitat because the regulatory, educational, and will be reluctant to continue (Service 2012a, pp. 61–62), and is likely ancillary benefits that would result from participation in the conservation efforts to benefit the species. It is anticipated critical habitat designation are similar to if critical habitat is designated. It will be that the implementation of these the benefits already afforded through necessary for EBID’s constituents to projects will support reaching the the IBWC management plan and support the water transaction program, flycatcher territory and habitat goals protections associated with the listing of in order for it to be successful. If critical established in the Recovery Plan. the flycatcher. The implementation of habitat is designated, the constituents Therefore, based on the benefits the IBWC collaborative conservation are unlikely to support the efforts of the described above, we have determined project provides for significant water transaction program. Our that this exclusion will not result in the conservation, management, partnership, along with the biological extinction of the flycatcher, and the improvement, and protection of the opinion for IBWC’s canalization project Secretary is exercising his discretion physical or biological features essential and restoration sites (which includes under section 4(b)(2) of the Act to to flycatcher conservation in order to the flycatcher management plan and the exclude the entire proposed segment of achieve flycatcher recovery goals. water transaction program), ensures the lower Rio Grande from Caballo Dam The Service has created close implementation of the protections and to Leasburg Dam from this final critical partnerships through the development management actions identified within habitat designation. of IBWC’s restoration plan, which their plan. Therefore, the relative incorporates protections and benefits of excluding critical habitat on Tribal Management Plans management objectives for the these lands are substantial and outweigh In this section, we first provide an flycatcher and the habitat upon which it the benefits of including the area as overview of the conservation actions depends for breeding, sheltering, and critical habitat. described in the flycatcher management foraging activities. The conservation We have determined that the plans being implemented by the La Jolla strategy identified in IBWC’s additional regulatory benefits of and Rincon Band of Luisen˜ o Mission

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Indians in California; Navajo Nation in Luis Rey River and to establish this Lower Colorado Recovery Unit, Little New Mexico and Utah; San Carlos open space as a reserve for Colorado Management Unit Apache and Yavapai-Apache Tribes in environmental and cultural purposes; Zuni Pueblo Arizona; Southern Ute Tribe in (3) management of native vegetation that The Zuni Department of Natural Colorado; and Zuni and San Ildefonso could improve the quality and Resources (2012, entire), on behalf of Pueblos in New Mexico. These plans abundance of riparian habitat, and were either admitted to the supporting The Zuni Pueblo (Zuni), developed and decrease the risk of wildfire; (4) submitted a Flycatcher Management record during the open comment period reducing the impact of recreation in for the proposed rule or were already Plan to the Service in October 2012. riparian areas by continuing to educate Zuni and the Service have a common part of our files and submitted during tribal members and campground visitors the development of the 2005 flycatcher interest in promoting healthy through outreach programs, brochures, ecosystems and protecting the flycatcher critical habitat designation. Based upon and newsletters; and (5) working to our occupancy criteria for this rule, all and its habitat. Zuni described that their discourage the use of off-road vehicles of the streams identified on these tribal cultural and spiritual beliefs are tied to in riparian areas through education, lands either are known to have wetlands and riparian areas, and, flycatcher territories or are expected to movement or closure of roads, and therefore, have committed to continue be used by migrant flycatchers. After an development of tribal ordinances. to manage riparian corridors benefiting all riparian obligate species, including introduction of the conservation efforts Rincon Band of Luisen˜ o Mission of each of these tribal lands, discussed the flycatcher. Indians The Zuni’s Flycatcher Management in order of the Recovery and Plan describes their approach to Management Units, we then collectively The Rincon Band of Luisen˜ o Mission managing the flycatcher and its habitat Indians Reservation is located in analyze the benefits of including the on tribal land, which includes a 55.4-km tribal lands within the critical habitat northern San Diego County, California, (34.4-mi) segment of the Zuni River and designation and the benefits of in the San Diego Management Unit, and a 35.8-km (22.2-mi) segment of the Rio excluding these areas. We conclude contains an approximately 4.3-km (2.7- Nutria proposed as critical habitat in with analysis comparing the benefits of mi) stream segment along the San Luis McKinley and Cibola Counties, New inclusion with the benefits of exclusion Rey River proposed as willow flycatcher Mexico. This Management Plan was of these tribal lands. critical habitat. The Rincon Band of developed in accordance with the The tribes (Hualapai, Chemehuevi, Luisen˜ o Indians completed a Flycatcher Recovery Plan (Service 2002, entire), Fort Mojave, CRIT, and Quechan—Fort Tribal Resource Conservation and which is the primary resource for Yuma) included in the planning area for Management Plan (Rincon Band of conservation practices. the LCR MSCP are discussed above Luisen˜ o Mission Indians 2005, entire) The Zuni Department of Natural within the evaluation of the LCR MSCP and confirmed through their letter Resources has actively managed known for exclusion under section 4(b)(2) of submitted during the proposed rule’s flycatcher habitat in order to conserve the Act. comment period, the plan’s ongoing and protect the continued presence of Coastal California Recovery Unit, San implementation toward flycatcher flycatchers on Zuni Pueblo. Zuni has Diego Management Unit conservation. supported research studies to improve their understanding of flycatcher La Jolla Band of Luisen˜ o Mission The Rincon Band of Luisen˜ o Mission territory abundance, site fidelity, year- Indians Indian’s Management Plan addresses to-year movements, and survival. Zuni The La Jolla Band of Luisen˜ o Indians potential threats to flycatcher habitat has protected these riparian areas with Reservation is located in northern San through implementation of a variety of known territories by preventing major Diego County, California, in the San protective measures including: (1) land altering and development Diego Management Unit, and contains Management of native vegetation that activities; implementing seasonal an approximately 11.6-km (7.2-mi) could improve the quality and buffers when needed; providing stream segment along the San Luis Rey abundance of riparian habitat, and education to tribal members; and River that was proposed as flycatcher decrease the risk of wildfire; (2) removal managing cattle through annual review critical habitat. The La Jolla Band of of all trash and debris from the San Luis of grazing, rotational grazing practices, Luisen˜ o Indians completed a Flycatcher Rey River; (3) excluding activities in the and livestock exclusions. Zuni has also Management Plan (La Jolla Band of floodplain, such as mining and livestock used introduction of beavers to elevate Luisen˜ o Indians 2005, entire) and grazing, which could remove or reduce ground water tables, thereby increasing confirmed through their letter submitted the quality of riparian habitat; (4) the amount of water available for during the proposal’s comment period exclusion of unauthorized recreational riparian plants that flycatcher rely upon. that the plan has ongoing uses and off-road vehicle use from the Zuni will continue to survey for implementation. riparian area; and (5) education of the flycatchers in known areas and also The La Jolla Band of Luisen˜ o Indians’ public through development of signs, other habitats that exhibit suitable Flycatcher Management Plan provides boundaries, and other measures to habitat characteristics. Their objectives guidelines for the protection and prevent unauthorized recreational use. by continuing these surveys is to be able management of flycatcher habitat. The to conserve and protect the flycatcher Tribe’s Flycatcher Management Plan Additionally, the Tribe is currently and its habitat from possible land describes a collection of measures, coordinating with the Service to altering actions such as over utilization, protections, and efforts they are and will develop a Reservation-wide HCP to habitat manipulation, fire, or be undertaking to protect flycatcher provide conservation benefits to mechanical or chemical treatments. riparian habitat which includes: (1) federally listed, unlisted, and rare Zuni has also begun to develop 12 Maintaining permanent staff to address species, including the federally different riparian habitat areas that may environmental issues, of which a endangered flycatcher. be used by nesting flycatchers. A 49-ha Master’s level biologist is employed; (2) (120-ac) wetland-riparian habitat area is maintaining open space along the San being established with cottonwood and

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willow trees by using treated affluent and temporary disturbances. Biological mitigating the adverse effects through from the wastewater treatment plant. preserves are landscapes of high the implementation of projects such as This habitat is being developed partially wildlife value and little or no current the planting of willows in affected to replace areas where vegetation development or disturbance, or are riparian habitats, will be a priority. needed to be reduced in order to reduce particularly important for one or more The NNDFW does not anticipate any hazardous fuel loads. Zuni has created protected species. Permanent or prescribed burns in potential flycatcher 5 of the 12 habitat sections and continue temporary development within habitat, and would not approve a to see improvement in the growth of biological preserves is prohibited unless prescribed burn in known flycatcher cottonwood and willow. It is their it is compatible with the management of habitat without consultation with the objective that with the continued those areas as wildlife habitat. Highly Service. development of these habitats, breeding sensitive habitats are areas that contain The Navajo Nation described that flycatchers will use the area. a high degree of habitat or resources while livestock grazing is a traditional importance for one or more protected way of life for the Navajo People, the Upper Colorado Recovery Unit, San species and have been relatively Navajo Nation recognizes that Juan Management Unit undisturbed by development. management is needed to address Navajo Nation Permanent development is not impacts that grazing has on vegetation flycatchers rely upon. The Nation can The Navajo Nation submitted a prohibited, but those developments must demonstrate that impacts to withdraw riparian habitat from grazing management plan that recognizes the use and has previously worked with flycatcher as a species in need of protected species will be minimal, and the NNDFW strongly urges relocating other Navajo agencies to reduce and protection on the Navajo Nation (Navajo projects to less sensitive habitats if eliminate grazing in important habitats Nation 2012, entire). Their plan uses possible. along the San Juan River. Efforts are conservation techniques recommended Although NNDFW makes a strong underway by Navajo policy makers and in the Recovery Plan and applies to all effort to avoid impacts to riparian agencies to address past grazing impacts appropriate streams administered by the habitats through project evaluation, on the Navajo Nation and to improve Navajo Nation, including a 3.5-km (2.2- some necessary developments may protection and enforcement of Navajo mi) segment proposed as critical habitat occur and efforts will be made to resources and ecosystems. For example, along the San Juan River within San reduce, minimize, or mitigate potential this year the Navajo Departments of Juan County, New Mexico, and a 51.6- project impacts. When a project could Resource Enforcement and Agriculture, km (32.1-mi) segment along the San disturb nesting flycatchers or their in the Division of Natural Resources, Juan River in San Juan County, Utah habitat, NNDFW requires the project partnering with local chapters (43.5 km, 27.0 mi of the south bank on sponsor to adhere to protocol surveys (municipal subdivisions of the Navajo the eastern portion of the segment and and avoidance restrictions. Projects with government), have been conducting 8.1 km, 5.1 mi of both banks of the the potential to disturb flycatchers or roundups to reduce overgrazing by remaining western portion of the affect its habitat require two years of stray, feral, and unpermitted livestock. segment). The Navajo Nation surveys. NNDFW prohibits activities Additionally, the Navajo Nation and the Department of Fish and Wildlife within 0.4 km (0.25 mi) of a known nest BIA have been conducting public (NNDFW) described that they will or 0.4 km (0.25 mi) of potential nesting outreach regarding grazing impacts and review their flycatcher management habitat (if a nest is not known) during the necessity of immediate and plan every 5 years for effectiveness, and, the breeding season. Alteration of proactive steps to be taken to reduce in consideration of the current status of riparian habitat within 0.4 km (0.25 mi) grazing pressure and restore the flycatcher under Navajo and Federal of a known breeding area is prohibited productivity of Navajo Nation law, they will revise and extend the year-round. When riparian habitats will rangelands. plan accordingly. be affected NNDFW seeks mitigation to Southern Ute Tribe The NNDFW has authority with enhance or improve similar habitats regard to endangered and threatened elsewhere. Of particular importance to The Southern Ute Tribal Flycatcher species protection and all temporary NNDFW is enhancement of riparian Management Plan (Management Plan), and permanent developments must habitats for the benefit of tribally or developed by the Southern Ute Division receive clearance from NNDFW. The federally protected species, and any of Wildlife Resource Management (2012, Navajo Nation evaluates a project’s such projects get high priority. entire), was adopted by their Tribal potential impact on protected wildlife Existing recreational use on the Council in July 2012. The Tribe or their habitat by using their Natural Navajo Nation by boaters, campers, or manages its lands within the Heritage Database and various tribal and hikers is not a primary stressor to Reservation in a manner that protects Federal wildlife protection regulations. flycatcher habitat. Recreation primarily and conserves natural resources, The Navajo Nation’s regulatory process occurs along stream segments in including habitats for endangered and divides their land into six separate land canyon, where habitat for flycatcher threatened species. status categories based on their territories is not expected. The Southern Ute’s Management Plan biological sensitivity and uses these The introduction of nonnative describes their comprehensive and categories to manage actions in a way species, including those for weed or integrated approach in managing the that minimizes impacts to sensitive invasive species management, is flycatcher and its habitat on tribal land. species and habitats. currently prohibited by NNDFW This includes the 25.9-km (16.1-mi) Proposed flycatcher critical habitat policies and will be both a criminal and segment of the Los Pinos River proposed segments along the San Juan River falls civil offense in the Navajo Nation Fish as flycatcher critical habitat in La Plata into areas the Navajo Nation has and Wildlife Code proposed County, Colorado. This Management delineated as either as a biological amendments (pending approval by the Plan can be amended when determined preserve or a highly sensitive area Navajo Nation Council) (Navajo Nation necessary by the Department and (Navajo Nation 2012, p. 28). These areas 2012, p. 25). The NNDFW recognizes Council to reflect new information such are provided the greatest degree of the potential impacts to riparian habitat as the flycatcher’s biology, distribution, protection from permanent development from the tamarisk leaf beetle, and or abundance.

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The Southern Ute Division of Wildlife Gila Recovery Unit, Verde Management roads or recreation sites have been Resource Management is involved in Unit created. Similarly, any new housing internal tribal project review. Prior to Yavapai-Apache Nation areas have been directed to avoid review, all land use, management, and construction within the river corridor. The Yavapai-Apache Nation development activities on tribal lands The Yavapai-Apache Nation has completed a Flycatcher Management require review and comment by tribal conducted continued education, Plan in 2005, and updated their plan in resource experts and formal approval by information gathering, and partnering. 2012 (Yavapai Apache Nation 2012, The Nation has emphasized the Tribal Council. As described in their entire). The Yavapai-Apache Nation Management Plan, all projects that importance of protecting the Verde Tribal Council approved the River within tribal youth education could adversely affect sensitive implementation of their updated resources, such as flycatcher habitat, are programs. The Nation has also installed Management Plan in September 2012. measurement devices to evaluate the mitigated to the maximum extent The Yavapai and Apache people depth of the Verde River groundwater in practicable. describe that they have valued and order to address river flows necessary to A primary goal of the Southern Ute protected the Verde River, and the 2.8- maintain or improve the riparian habitat Tribe, as reflected in their Management km (1.7-mi) portions of the stream on quality. The Yavapai-Apache Nation has Plan, is to protect flycatcher habitat and Yavapai-Apache tribal lands proposed also continued to strengthen its territories, focusing on maintaining the as flycatcher critical habitat within partnership with the Service by hosting complex vegetation structure and Yavapai County, Arizona, since time a meeting on the Service’s Verde River immemorial. hydrologic conditions, which represent conservation strategies. The Nation has The Nation continues to preserve committed to cooperatively discussing and support flycatcher habitat. Loss of those portions of the Verde River under and examining future projects with the habitat will be minimized by locating its jurisdiction along with the plants Service that could impact the flycatcher land-use and development outside of and animals associated with the River. or its habitat. flycatcher habitat areas. Management The Nation has a common interest with and protection of habitat include such the Service in promoting healthy Gila Recovery Unit, Upper Gila strategies as establishing seasonal ecosystems for endangered and Management Unit buffers around territories; designating threatened species, including the San Carlos Apache Tribe Tribal Conservation Areas; minimizing flycatcher. recreation impacts; suppressing and The Management Plan specifically The San Carlos Apache Tribe reducing occurrence of wildfire; and addresses and presents assurances for Flycatcher Management Plan, developed managing cattle grazing through implementation of flycatcher habitat by the SCATRWD (2012, entire), was exclusion, fencing, or conservative use. conservation. The Nation will take steps adopted by their Tribal Council in 2005, and was updated and adopted by the The Management Plan indicates that to protect flycatcher habitat along the Verde River through zoning, Council in September 2012. The Tribe flycatcher habitat improvements will implementing tribal ordinances and describes that it highly values its also be a goal along the Los Pinos River. code requirements, and carrying out wildlife and natural resources, which it Habitat creation and enhancement measures identified in the Recovery is charged to preserve and protect under efforts will focus on restoring native Plan. their Tribal Constitution. Consequently, plant communities through planting and The purpose of the Nation’s the Tribe has managed wildlife habitat improving the hydrologic conditions Flycatcher Management Plan is to on its tribal lands, including endangered that favor the establishment of native promote the physical and biological and threatened species habitat. San plants. The Tribe will pursue grants for features that will maintain flycatcher Carlos Apache tribal land includes the habitat improvements, seek habitat. Their strategy is not to allow 31.3-km (19.5-mi) segment of the Gila improvement of in-stream flow, and any net loss or permanent impacts to River upstream of the conservation explore introduction of beavers in order flycatcher habitat by implementing space of San Carlos Lake proposed as to raise groundwater elevation. measures from the Recovery Plan. flycatcher critical habitat in Graham The Southern Ute’s Management Plan Recreation and access to riparian areas County, and a small disconnected also describes that they will continue to will be managed to ensure no net loss portion (1 km, 0.6 mi) of the San Pedro conduct surveys for flycatcher and of habitat. Fire within riparian areas River north of Aravaipa Creek in Pinal County Arizona. conduct research in support of will be suppressed and also managed by reducing fire risks. The Tribe will Please note that as a result of new flycatcher conservation. The Tribe will cooperate with the Service to monitor information we received from ensure that all surveyors have the and survey habitat for breeding and comments, we have now updated our appropriate training to conduct migrating flycatchers, conduct research, land ownership information, and have flycatcher surveys and will conduct and perform habitat management, correctly identified that the BIA owns period surveys throughout the cowbird trapping, or other beneficial the conservation space or lakebed of San Reservation for flycatcher territories. flycatcher management activities. Carlos Lake. Please see San Carlos They will maintain their data in Since 2005, the Yavapai-Apache Reservoir within this Exclusion section electronic databases and coordinate and Nation has concluded that through for our separate 4(b)(2) exclusion share non-sensitive information with implementation of their Flycatcher analysis of the conservation space of the Service and others. They will Management Plan, there has been no net San Carlos Lake, which is owned by the continue to support research to better loss of flycatcher habitat. Since 2005, no BIA. understand flycatcher distribution and cattle grazing has occurred within the The purpose of their Management other actions that can improve tribal Verde River corridor. If any future Plan is to provide a comprehensive and conservation and management of the grazing is permitted, it will be integrated approach in managing the flycatcher. conducted appropriately with fences, flycatcher and its habitat, with the and in a manner to protect flycatcher overall goal of protecting and securing habitat quality. Also, no new access areas of suitable and potentially suitable

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flycatcher habitat on San Carlos Apache territories to the construction site in and riparian habitat. They entered into tribal land. In addition, it serves as a order to assess the potential impacts, an agreement in 2005 with the nearby guide to evaluate projects that may and measures were included in the pueblos and the Corps to protect impact the flycatcher and its habitat. section 7 biological opinions to reduce riparian habitat, in part, by conducting Strategies for managing flycatcher and minimize effects to flycatcher a watershed feasibility study on tribal habitat are based on guidelines outlined habitat. lands. The Pueblo has also collaborated in the Recovery Plan. This Management The San Carlos Apache’s Soil and with other agencies, such as the BIA and Plan can be amended when determined Moisture Conservation Program (SMCP) Service, on conducting flycatcher necessary by the Department and has been pursuing two of the Tribe’s surveys and evaluation of riparian Council to reflect new information on many objectives for natural resource rehabilitation management project the flycatcher’s biology, survey health: noxious weed removal and proposals and environmental methodologies, or tribal goals and restoring native vegetation. In 2005, the assessments (70 FR 60886; October 19, objectives for flycatcher management. SMCP initiated an effort to eradicate or 2005, p. 60958). Through the implementation of their reduce salt cedar in riparian areas where Benefits of Inclusion—Tribal Lands Management Plan, tribal ordinances and it was not yet a dominant portion of the codes, the Tribe will protect and Implementing Flycatcher Management habitat. The goals were to improve Plans manage known flycatcher habitat, native vegetation, wildlife diversity, including areas proposed as critical riparian health, and culturally As discussed above under habitat along the Gila River. The San important plants without using harsh, Application of Section 4(b)(2) of the Act, Carlos Recreation and Wildlife intrusive methods of weed removal. The Federal agencies, in consultation with Department will monitor riparian Tribe consulted the Recovery Plan the Service, must ensure that their habitat, survey for flycatchers (in during project planning to guide habitat actions are not likely to jeopardize the accordance with current protocols), and improvement in flycatcher breeding continued existence of any listed manage suitable and potentially suitable habitat. species or result in the destruction or flycatcher habitat. The Tribe assures no adverse modification of any designated net flycatcher habitat loss, permanent Rio Grande Recovery Unit, Upper Rio critical habitat of such species. The modification, or adverse impacts will Grande Management Unit difference in the outcomes of the occur as described in the Recovery Plan. San Ildefonso Pueblo jeopardy analysis and the adverse The Recovery Plan will also be a modification analysis represents the reference guide for any habitat The San Ildefonso Pueblo, located in regulatory benefit and costs of critical management activities or projects. The Rio Arriba County, New Mexico, habitat. Tribe, through the San Carlos Recreation completed and adopted a 2011 The streams that are being evaluated and Wildlife Department, will confer addendum to their 2005 Integrated that occur within these tribal lands are with tribal and Federal agencies, when Resource Management Plan, focusing known to be occupied by flycatchers appropriate, before performing specifically on flycatcher habitat and therefore, if a Federal action or management activities to control or management (San Ildefonso Pueblo permitting occurs, there is a catalyst for replace salt cedar with native willow, 2012, entire). The San Ildefonso Pueblo evaluation under section 7 of the Act. cottonwood, or mesquite depending on described that their motivation to repair Our section 7 consultation history the capability of the site, in order to and protect their land is strong, with across the flycatcher’s range shows that avoid or minimize detrimental impacts. their culture and tradition obligating since listing in 1995, four formal Since the Plan’s development in 2005, them to be stewards of the land, water, consultations have occurred for actions the San Carlos Apache Tribe has and wildlife, including the 7.7 km (4.8 conducted on tribal lands that resulted consistently conducted annual mi) of the Rio Grande proposed as in adverse effects to flycatchers. No flycatcher surveys and is committed to flycatcher critical habitat. formal flycatcher consultations have continue future surveys. A database has The San Ildefonso Pueblo’s been conducted with the BIA, a likely been developed to maintain survey data addendum provides the management source of federal funding for Native allowing the Tribe to evaluate flycatcher goals for long-term management of the American tribes. The two most recent populations and trends over multiple Tribe’s natural resources, including the formal section 7 consultations were years. Flycatcher locations are flycatcher’s habitat, based on the with the Federal Highway electronically mapped to assess density Recovery Plan. Their flycatcher Administration implementing bridge and habitat use. management goals are to: (1) Restore improvements on tribal lands in The results of the Tribe’s flycatcher water-related elements to improve Arizona. We have conducted informal surveys have assisted in identifying quality, distribution, and abundance of consultations with agencies potential project impacts in order to riparian habitat; (2) retain riparian implementing actions on tribal lands, avoid and minimize effects to habitat and minimize vegetation provided tribes technical assistance on flycatchers and their habitat. The removal; (3) manage livestock grazing project implementation, and the Corps Recreation and Wildlife Department, a through better fencing to improve the has coordinated with pueblos on clearinghouse for all project reviews, quality and quantity of riparian habitat; projects; however, overall, since listing has evaluated multiple projects since (4) protect riparian habitat from in 1995, formal section 7 consultations 2005, some of which were associated recreation impacts; (5) improve have been rare on tribal lands. Because with Federal funding and resulted in abundance of native plant species; (6) of how tribes and pueblos have chosen informal and formal section 7 suppress fires that may occur in riparian to manage and conserve their lands and consultations with the Service. In 2009, areas; (7) coordinate with others to the lack of past section 7 consultation the Federal Highway Administration improve flycatcher populations; and (8) history, we do not anticipate that tribal consulted with the Service on two minimize threats to migratory actions would considerably change in bridge improvement projects. Using flycatchers. the future, generating a noticeable survey data, tribal, FHWA, and Service The San Ildefonso Pueblo is increase in section 7 consultations that biologists were able to determine the collaborating with nearby pueblos and would cause impacts to flycatchers and location and proximity of flycatcher agencies on improving stream function flycatcher habitat. Therefore, with

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migratory and territorial flycatchers Federal laws such as the Clean Water to promote the conservation of the using these tribal lands and few formal Act. These laws require analysis of the flycatcher and its habitat, and other section 7 consultations completed, the potential for proposed projects to species. effect of a critical habitat designation on significantly affect the environment. During the development of the these lands is minimized. Critical habitat may signal the presence flycatcher critical habitat proposal (and Were we to designate critical habitat of sensitive habitat that could otherwise coordination for other critical habitat on these tribal lands, our section 7 be missed in the review process for proposals) and other efforts such as consultation history indicates that there these other environmental laws. development of the Recovery Plan, we may be some, but few, regulatory Finally, there is the possible benefit have met and communicated with benefits to the flycatcher. As described that additional funding could be various tribes and pueblos to discuss above, even with flycatchers occurring generated for habitat improvement by an how they might be affected by the on these tribal lands, the frequency of area being designated as critical habitat. regulations associated with flycatcher formal flycatcher-related section 7 Some funding sources may rank a management, flycatcher recovery, and consultations has been rare. Projects project higher if the area is designated the designation of critical habitat. As initiated by Federal agencies in the past as critical habitat. Tribes or pueblos such, we established relationships that were associated with maintenance often seek additional sources of funding specific to flycatcher conservation. As of rights-of-way or water management in order to conduct wildlife-related part of our relationship, we have such as those initiated by Federal conservation activities. Therefore, provided technical assistance to these Highway Administration or the USBR having an area designated as critical tribes and pueblos to develop measures may occur on tribal lands in the future. habitat could improve the chances of to conserve the flycatcher and its habitat When we review projects addressing the receiving funding for flycatcher habitat- on their lands. These measures are flycatcher pursuant to section 7 of the related projects. However, areas where contained within the management plans Act, we commonly examine nesting, migrating, dispersing, or that we have in our supporting record conservation measures associated with foraging flycatchers occur, as is the case for this decision. These proactive the project for consistency with here, may also provide benefits when actions were conducted in accordance strategies described within the Recovery projects are evaluated for receipt of with Secretarial Order 3206, ‘‘American Plan. Where there is consistency with funding. Indian Tribal Rights, Federal-Tribal managing habitat and implementing Therefore, because of the Trust Responsibilities, and the conservation measures recommended in implementation of tribal management Endangered Species Act’’ (June 5, 1997); the Recovery Plan (as is the case for plan conservation, rare initiation of the relevant provision of the these tribes), it would be unlikely that formal section 7 consultations, the Departmental Manual of the Department a consultation would result in a occurrence of territorial and migrant of the Interior (512 DM 2); and determination of adverse modification flycatchers on tribal lands, and overall Secretarial Order 3317, ‘‘Department of of critical habitat. Therefore, when the coordination with tribes on flycatcher- Interior Policy on Consultation with threshold for adverse modification is related issues, it is anticipated that there Indian Tribes’’ (December 1, 2011). We not reached, only additional may be some, but limited, benefits from believe that these tribes and pueblos conservation recommendations could including these tribal lands in a should be the governmental entities to result out of a section 7 consultation, flycatcher critical habitat designation. manage and promote flycatcher but such measures would be The principal benefit of any designated conservation on their lands. During our discretionary on the part of the Federal critical habitat is that activities in and communication with these tribes and agency. affecting such habitat require pueblos, we recognized and endorsed Another important benefit of consultation under section 7 of the Act. their fundamental right to provide for including lands in a critical habitat Such consultation would ensure that tribal resource management activities, designation is that the designation can adequate protection is provided to avoid including those relating to riparian serve to educate landowners and the destruction or adverse modification of habitat. public regarding the potential critical habitat. However, with tribes We received tribal management plans conservation value of an area, and it and pueblos implementing measures specific to the flycatcher and its habitat may help focus management efforts on that conserve flycatcher habitat from eight tribes and pueblos (we areas of high value for certain species. combined with the rarity of Federal address an additional five tribes that Any information about the flycatcher actions resulting in formal section 7 developed management plans within that reaches a wide audience, including consultations, the benefits of a critical the LCR MSCP exclusion analysis). All parties engaged in conservation habitat designation are minimized. of the proposed critical habitat segments activities, is valuable. These tribes and we identified on lands managed by Benefits of Exclusion—Tribal Lands pueblos are currently working with the tribes and pueblos that provided Service to address flycatcher habitat and Implementing Flycatcher Management management plans are where migratory conservation, participate in working Plans flycatchers have been recorded (or are groups, and exchange management The benefits of excluding these tribal anticipated to occur) or where territories information. Because these tribes and lands from designated critical habitat have also been detected. Tribes have pueblos have developed flycatcher include: (1) The advancement of our expressed that their lands, and specific Management Plans, have been Federal Indian Trust obligations and our specifically riparian habitat, are involved with the critical habitat deference to tribes to develop and connected to their cultural and religious designation process, and are aware of implement tribal conservation and beliefs, and as a result they have a the value of their lands for flycatcher natural resource management plans for strong commitment and reverence conservation, the educational benefits of their lands and resources, which toward its stewardship and a flycatcher critical habitat designation includes the flycatcher; (2) the conservation. Many tribes recognize that are minimized. conservation benefits to the flycatcher their management of riparian habitat Another possible benefit of the and its habitat that might not otherwise and conservation of the flycatcher are designation of critical habitat is that it occur; and (3) the maintenance of common goals they share with the may strengthen or reinforce some effective collaboration and cooperation Service, and their Management Plans

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are based on strategies found in the establish this cooperative relationship’’ natural resource programs. We conclude Recovery Plan. Some of the common (Peck 2011, p. 2). For these reasons, we that our working relationships with Management Plans strategies are believe that our working relationships these tribes on a government-to- maintaining riparian conservation areas, with these tribes would be better government basis have been extremely preserving habitat, improving habitat, or maintained if we excluded their lands beneficial in implementing natural having no net loss of riparian habitat. from the designation of flycatcher resource programs of mutual interest, Tribes also have project-by-project critical habitat. We view this as a and that these productive relationships review processes in place that allow substantial benefit since we have would be compromised by critical evaluation and implementation of developed a cooperative working habitat designation of these tribal lands. conservation measures to minimize, or relationship with the tribes and pueblos In addition to flycatcher management eliminate adverse impacts. Some tribes for the mutual benefit of flycatcher plans, we anticipate future management have natural resource departments, conservation and other endangered and plans to include conservation efforts for which have experienced biologists, threatened species. other listed species and their habitats. conduct flycatcher surveys, and We indicated in the proposed rule We believe that many tribes and pueblos maintain databases on the quality of that our final decision regarding the are willing to work cooperatively with habitat throughout tribal lands and the exclusions of tribal lands under 4(b)(2) us and others to benefit other listed status and occurrence of migratory and of the Act would consider tribal species, but only if they view the territorial flycatchers. Having this management and the recognition of their relationship as mutually beneficial. information available to tribes creates capability to appropriately manage their Consequently, the development of effective conservation through any own resources, and the government-to- future voluntarily management actions project review process. The government relationship of the United for other listed species may be implementation of their Management States with tribal entities (76 FR 50542; compromised if these tribal lands are Plans has been coordinated and August 15, 2011, p. 50584). We also designated as critical habitat for the approved through appropriate tribal acknowledged our responsibilities to flycatcher. Thus, a benefit of excluding processes, such as tribal councils. work directly with tribes in developing these lands would be future Overall, these commitments toward programs for healthy ecosystems, that conservation efforts that would benefit management of flycatcher habitat likely tribal lands are not subject to the same other listed species. controls as Federal public lands, our accomplish greater conservation than Benefits of Exclusion Outweigh the need to remain sensitive to Indian would be available through the Benefits of Inclusion—Tribal Lands culture, and to make information implementation of a designation of Implementing Flycatcher Management available to tribes (76 FR 50542; August critical habitat on a project-by-project Plans basis. 15, 2011, p. 50596). We identified all tribal land included within the proposal The benefits of including these tribes The designation of critical habitat on as areas we were considering for and pueblos in the critical habitat these tribal or pueblo lands would be exclusion and our continued designation are limited to the expected to adversely impact our coordination with tribes and pueblos incremental benefits gained through the working relationship with these tribes. (76 FR 50542; August 15, 2011, pp. regulatory requirement to consult under During our discussions with these tribes 50582–50583). section 7 and consideration of the need and from comments we received on the We coordinated and communicated to avoid adverse modification of critical proposed designation of critical habitat, with tribes and pueblos throughout the habitat, agency and educational many informed us that critical habitat revision of flycatcher critical habitat by awareness, potential additional grant would be viewed as an intrusion on providing them information on: funding, and the implementation of their sovereign abilities to manage Implementation of section 4(b)(2) of the other law and regulations. However, as natural resources in accordance with Act; the Recovery Plan; Management discussed in detail above, we believe their own policies, customs, and laws. Plan templates, guidance, and review; these benefits are minimized because For example, the Rincon Tribe states critical habitat schedules, related they are provided for through other that ‘‘A critical habitat designation on documents, and public hearings; and mechanisms, such as (1) the the Reservation would have an our interest in consulting with them on advancement of our Federal Indian unfortunate and substantial negative a government-to-government basis at Trust obligations; (2) the conservation impact on the working relationship the their request. We also followed up our benefits to the flycatcher and its habitat Service and the Rincon band have correspondence with telephone calls from implementation of flycatcher established’’ (Mazzetti 2011, p. 3). The and electronic mail to assist with any management plans; and (3) the perceived restrictions of a critical questions. During the comment period, maintenance of effective collaboration habitat designation could have a we received input from many tribes and and cooperation to promote the damaging effect on coordination efforts, BIA offices expressing the view that conservation of the flycatcher and its possibly preventing actions that might designating flycatcher critical habitat on habitat. maintain, improve, or restore habitat for tribal land would adversely affect the The benefits of excluding these areas the flycatcher and other species. To this Service’s working relationship with all from being designated as flycatcher end, we found that tribes would prefer tribes. Many noted that beneficial critical habitat are more significant and to work with us on a government-to- cooperative working relationships include encouraging the continued government basis. The La Jolla Band of between the Service and tribes have implementation of tribal management Luisen˜ o Indians wrote that ‘‘* * * we assisted in the conservation of listed and conservation measures such as believe that proper consultation and species and other natural resources. monitoring, survey, habitat management partnering, rather than regulation, will They indicated that critical habitat and protection, and fire-risk reduction best achieve the desired result of designation on these tribes or pueblos activities that are planned for the future conservation,’’ and ‘‘La Jolla and the would amount to additional Federal or are currently being implemented. Service, in partnership with the BIA, regulation of sovereign Nations’ lands, These programs will allow the tribes to have worked hard to erase the and would be viewed as an unwarranted manage their natural resources to perception of past negative issues, and and unwanted intrusion into tribal benefit riparian habitat for the

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flycatcher, without the perception of developed in the Recovery Plan, we approximately 11.2 km (7.0 mi) of Federal Government intrusion. This have concluded that this exclusion from stream segments comprised of tribal philosophy is also consistent with our critical habitat will not result in the lands. As described in our analysis published policies on Native American extinction of the flycatcher. below, this conclusion was reached after natural resource management. The Accordingly, we have determined that considering the relevant impacts of exclusion of these areas will likely also these tribes and pueblos should be specifying these areas as critical habitat. provide additional benefits to the excluded under subsection 4(b)(2) of the The longstanding and distinctive flycatcher and other listed species that Act because the benefits of excluding relationship between the Federal and would not otherwise be available these lands from critical habitat for the tribal governments is defined by without the Service’s maintaining a flycatcher outweigh the benefits of their treaties, statutes, executive orders, cooperative working relationship with inclusion, and the exclusion of these judicial decisions, and agreements, other tribes and pueblos. In conclusion, lands from the designation will not which differentiate tribal governments we find that the benefits of excluding result in the extinction of the species. from the other entities that deal with, or these tribal lands (La Jolla and Rincon are affected by, the U.S. Government. Tribal Conservation Partnerships, Band of Luisen˜ o Mission Indians in This relationship has given rise to a Southern California California; Navajo Nation in New special Federal trust responsibility Mexico and Utah; San Carlos Apache We determined approximately 11.2 involving the legal responsibilities and and Yavapai-Apache Tribes in Arizona; km (7.0 mi) of stream segments owned, obligations of the United States toward Southern Ute Tribe in Colorado; and administered by, or set aside for the sole Indian tribes with respect to Indian Zuni and San Ildefonso Pueblos in New and exclusive use of certain Southern lands, tribal trust resources, and the Mexico) from critical habitat California tribes (Ramona Band of exercise of tribal rights. Pursuant to designation outweigh the benefits of Cahuilla (0.4, km, 0.3 mi); the Pala Band these authorities, lands have been including these areas. of Luisen˜ o Mission Indians of the Pala retained by Indian tribes or have been Reservation (8.3 km, 5.3 mi); the Barona set aside for tribal use. These lands are Exclusion Will Not Result in Group of Capitan Grande Band of managed by Indian tribes in accordance Extinction—Tribal Lands Implementing Mission Indians and the Viejas (Baron with tribal goals and objectives within Flycatcher Management Plans Long) Group of Capitan Grande Band of the framework of applicable treaties and As noted above, the Secretary, under Mission Indians, which jointly manage laws. Secretarial Order 3317, section 4(b)(2) of the Act, may exclude the Capitan Grande Band of Diegueno ‘‘Department of Interior Policy on areas from the critical habitat Mission Indians Reservation (0.9 km, Consultation with Indian Tribes’’ designation unless it is determined, 0.3 mi); and the Iipay Nation of Santa (December 1, 2011), outlines the ‘‘based on the best scientific and Ysabel (1.6 km, 1.0 mi)) contain the policies and the responsibilities of the commercial data available, that the physical or biological features essential Department of Interior in matters failure to designate such area as critical to the flycatcher conservation, and affecting tribal interests. In accordance habitat will result in the extinction of therefore meet the definition of critical with Secretarial Order 3317; Secretarial the species concerned.’’ We have habitat under the Act. While none of Order 3206, ‘‘American Indian Tribal determined that exclusion of these these southern California tribes Rights, Federal-Tribal Trust tribes and pueblos from the critical submitted a formal management plan Responsibilities, and the Endangered habitat designation will not result in the identifying specific flycatcher Species Act’’ (June 5, 1997); and the extinction of the flycatcher. First, conservation measures, our relationship relevant provision of the Departmental Federal activities on these areas that and partnership with these tribes is Manual of the Department of the Interior may affect the flycatcher will still important in order to cooperate towards (512 DM 2), we believe that fish, require consultation under section 7 of flycatcher recovery, provide technical wildlife, and other natural resources on the Act. Section 7(a)(2) of the Act assistance on implementing flycatcher tribal lands are better managed under requires Federal agencies to ensure that conservation actions, and share tribal authorities, policies, and activities they authorize, fund, or carry information on flycatcher distribution programs, than through Federal out are not likely to jeopardize the and abundance (Service 2002, Appendix regulation wherever possible and continued existence of listed species. N). During the comment periods, some practicable. We also recognize our Therefore, even without critical habitat of these tribes did provide some unique responsibility to promote tribal designation on these lands, activities information about conservation and sovereignty and self-governance. Based that occur on these lands cannot educational efforts, which we identify on this philosophy, we believe that, in jeopardize the continued existence of in each tribe’s introduction (see below). most cases, designation of tribal lands as the flycatcher. Even so, our record When conducting our analysis under critical habitat would provide very little demonstrates that formal section 7 section 4(b)(2) of the Act, with regard to additional benefit to the flycatcher. consultations rarely occur on tribal these tribal lands, we considered several Furthermore, we believe designating lands, which is likely as a result of factors, including Executive Order these tribal lands would have an impact existing conservation planning. Second, 13175, Presidential Memorandum (74 on Federal policies promoting tribal each of these tribes and pueblos have FR 57879; November 9, 2009), sovereignty and self-governance because committed to protecting and managing Secretarial Order 3206, our existing and designation is often viewed by tribes as flycatcher habitat according to their future partnerships with tribes, and an unwarranted and unwanted intrusion management plans and natural resource existing conservation strategies or into tribal self-governance, thus management objectives. We believe this actions that tribes are currently compromising the government-to- commitment accomplishes greater implementing. We also took into government relationship important to conservation than would be available consideration any conservation actions achieving our mutual goals of managing through the implementation of a that are planned as a result of ongoing for healthy ecosystems upon which the designation of critical habitat on a government-to-government viability of endangered and threatened project-by-project basis. With the consultations with tribes. Under section species populations depend. implementation of these conservation 4(b)(2) of the Act, the Secretary is Section 4(b)(2) of the Act allows the measures, based upon strategies exercising his discretion to exclude Secretary to exclude areas from critical

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habitat based on economic impacts, consultation requirements of the Act in flycatcher, and other covered species by impacts to National security, or other the future. minimizing or mitigating for impacts to relevant impacts if the Secretary Although currently there is no these species of their habitat. The Tribe determines that the benefits of such flycatcher management plan for these is currently coordinating with the exclusion outweigh the benefits of tribal lands, the Service, BIA, and tribe Service in the initial stages of the THCP designating the area as critical habitat, are currently coordinating to discuss development. unless such exclusion will result in the flycatcher management on the Also, The Pala Environmental extinction of the species. In the decision reservation and will work together to Protection Agency has developed an Center for Biological Diversity, v. promote conservation of the species and education program for tribal members to Norton, 240 F. Supp. 2d 1090 (D. Ariz. its habitat. The Ramona Band of ensure awareness of habitat and 2003), the court held that a positive Cahuilla, California, has developed draft resource constraints on the Reservation working relationship with Indian tribes conservation measures that benefit the (Smith 2011, p. 4). is a relevant impact that can be flycatcher and its habitat and has stated, Barona Group of Capitan Grande Band considered when weighing the relative ‘‘the Ramona Band of Cahuilla invites of Mission Indians of the Barona benefits of a critical habitat designation the Department to work with the tribe Reservation, California and the Viejas (also see Center for Biological Diversity to devise and adopt its plan’’ (Gomez (Baron Long) Group of Capitan Grande v. U. S. Fish and Wildlife Service, No. 2012, p. 2). Mission Indians of the Viejas 09–CV–2216 W (S.D. Cal. Sept, 26, Coastal California Recovery Unit; San Reservation, California (Capitan Grande 2011)). In the case of the flycatcher, Diego Management Unit Reservation) critical habitat designation would have The Barona Group of Capitan Grande an adverse impact on our relationship Pala Band of Luisen˜ o Mission Indians of the Pala Reservation Band of Mission Indians and the Viejas with the affected tribes. Most tribes we (Baron Long) Group of Capitan Grande consulted expressed concern about the The Pala Band of Luisen˜ o Mission Band of Mission Indians jointly manage intrusion into tribal sovereignty that Indians of the Pala Reservation, the Capitan Grande Reservation. The critical habitat designation represents. California, is located in northern San Capitan Grande Reservation is located Comments received from tribes Diego County, California, in the San in San Diego County, California, in the reaffirmed this concern and stated they Diego Management Unit. Approximately San Diego Management Unit, and would view critical habitat designation 8.3 km (5.2 mi) of the San Luis Rey contains an approximately 0.9 km (0.6 on their lands as an unwanted intrusion, River that meets the definition of mi) stream segment along the San Diego which would have a negative impact on flycatcher critical habitat is on tribal River that meets the definition of tribal sovereignty and self-governance land, which includes tribal reservation flycatcher critical habitat. Tribal lands and on the relationship between the lands and pending fee-to-trust lands, of jointly managed by the Barona Group of tribe and the Service. This response was the Pala Band of Luisen˜ o Mission Capitan Grande Band of Mission Indians consistent with responses the Service Indians of the Pala Reservation, of the Barona Reservation, California received from Indian tribes in past California. Tribal lands of the Pala Band and the Viejas (Baron Long) Group of designations (for example, revised of Mission Indians along the San Luis Capitan Grande Mission Indians of the critical habitat designation for the Rey River were within the geographical Viejas Reservation, California, along the arroyo toad (76 FR 7246, February 9, area known to be occupied by the San Diego River were not within the 2011)). In addition, exclusion of tribal flycatcher at the time of listing, are geographical area known to be occupied lands would also have the benefit of currently considered occupied, and will by the flycatcher at the time of listing, promoting a positive relationship be subject to the consultation but have since had documented between the Service and the tribes (in requirements of the Act in the future. occupancy and are currently considered accordance with Secretarial Order The tribe developed a management occupied and will be subject to the 3206), with a very small reduction in plan in 2005, which is currently being consultation requirements of the Act. the benefits of designation (primarily implemented to guide management and Although currently there is no the loss of section 7 consultation to land use on the reservation. Although flycatcher management plan for the consider adverse modification of critical the Tribe has not developed a Capitan Grande Reservation, the habitat). management plan specifically Service, BIA, and both Tribes are addressing the flycatcher, they have currently coordinating to discuss Coastal California Recovery Unit; Santa developed a management plan for the flycatcher management on the Ana Management Unit federally endangered arroyo toad reservation and will work together to The Ramona Band of Cahuilla (Anaxyrus californicus), which provides promote conservation of the species and ancillary benefits to the flycatcher such its habitat. The Tribes have also been The Ramona Band of Cahuilla, as: (1) Maintenance of designated open working closely with the BIA on a fuel California, is located in northern space and waterways along the San Luis reduction project for fire safety Riverside County, in the Santa Ana Rey River; (2) discouraging development purposes, which provide an ancillary Management Unit, and contains an within the San Luis Rey River; and (3) benefit to the flycatcher by reducing the approximately 0.4-km (0.3–mi) stream removal of nonnative species. likelihood of fire that might affect segment along Bautista Creek that meets Additionally, in 2010, the Tribe was flycatcher habitat. the definition of flycatcher critical awarded a Tribal Wildlife Grant to Additionally, as discussed in habitat. Tribal lands of the Ramona develop a tribal Habitat Conservation comments we received from the Barona Band of Cahuilla, California, along Plan (THCP), in cooperation with the Group of Capitan Grande Band of Bautista Creek were not within the Service. The purpose of the THCP is to Mission Indians and the Viejas (Baron geographical area known to be occupied protect the Tribe’s natural resources, Long) Group of Capitan Grande Mission by the flycatcher at the time of listing, through the permitting of any incidental Indians, the Tribes have not developed but have since had documented take occurring during land this stream segment, nor do they have occupancy and are currently considered development, in return for providing any intention to. They described that occupied and will be subject to the coverage to listed species, including the this portion of the San Diego River is

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not inhabited and is very remote, and analyses will be similar, because effects designation, published July 22, 1997 (62 use by outside parties is not permitted to habitat will often also result in effects FR 39129), and August 20, 1997 (62 FR and is only accessed for hunting and to the species. While some of these 44228); the final flycatcher listing rule cultural activities by tribal members. stream segments on southern California (60 FR 10694, February 27, 1995). In tribal lands were known to be occupied addition, because of our efforts Coastal California Recovery Unit; Salton by flycatchers at the time of listing and coordinating with these southern Management Unit others were not, all of them have since California tribes on the proposed rule, The Iipay Nation of Santa Ysabel had documented occupancy and are we believe educational benefits have The Iipay Nation of Santa Ysabel, currently considered occupied by our largely been realized on lands California Reservation is located in criteria established within this rule with controlled by or set aside for the sole eastern San Diego County, California, in either the known occurrence of and exclusive use of tribes. In an effort the Salton Management Unit, and territories or the likelihood of being to demonstrate our commitment to work contains an approximately 1.6-km (1.0- used by migrating flycatchers, and closely with the tribes as a partner in mi) stream segment along San Felipe therefore will be subject to the protecting species while also respecting Creek that meets the definition of consultation requirements of the Act in tribal status, the Service is conducting the future. Though a jeopardy and ongoing coordination with all the flycatcher critical habitat. Tribal lands adverse modification analysis must affected southern California tribes. We of the Iipay Nation of Santa Ysabel, satisfy two different standards, any believe our ongoing coordination with California, along San Felipe Creek were modifications to proposed actions the tribes should provide sufficient not within the geographical area known resulting from a section 7 consultation future education about the flycatcher to be occupied by the flycatcher at the to minimize or avoid impacts to the and its habitat, facilitate development of time of listing, but have since had flycatcher would be habitat based, as the management plans (for reservations that documented occupancy and are flycatcher is primarily dependent on a do not currently have management currently considered occupied and will properly functioning hydrological plans), and promote flycatcher be subject to the consultation regime. For example, because the stream conservation on tribal lands. requirements of the Act in the future. segments we identified as essential in An additional benefit to designating Although currently there is no southern California are considered critical habitat is to ensure that listed flycatcher management plan for the occupied, any impact to riparian habitat species, such as the flycatcher, have Iipay Nation of Santa Ysabel, the would directly affect the species essential habitat available that provides Service, BIA, and Tribe are currently because it is wholly dependent on for breeding, sheltering, feeding and coordinating to discuss flycatcher riparian habitat for breeding, sheltering, rearing to achieve recovery goals. In management on the reservation and will feeding and rearing. keeping with our tribal trust work together to promote conservation Another possible benefit of including responsibility, Secretarial Order 3206 of the species and its habitat. The Iipay these southern California tribal lands as states that when designating critical Nation of Santa Ysabel, California, has critical habitat is the public education habitat, we shall evaluate and document coordinated and collaborated with the regarding the potential conservation the extent to which the conservation Service by attending tribal coordination value of an area that may help focus needs of listed species can be achieved quarterly meetings. The meetings conservation efforts on areas of high by limiting the designation to other facilitate routine communication among conservation value for certain species. lands. For the flycatcher, the Recovery the Service, BIA, and tribal governments Any information about the flycatcher Plan identifies a minimum number of on upcoming rulemakings, species and its habitat that reaches a wide territories per Management Unit that reviews, consultation with other Federal audience, including parties engaged in must be met for the reclassification and agencies, or any other endangered conservation activities, is valuable. The recovery of the species (Service 2002, p. species issues that may be of interest or inclusion of tribal lands in the 84). A minimum number of 50 concern tribes. These meetings also flycatcher proposed critical habitat rule territories must be met for the Santa Ana provide a forum to discuss any fish or can be beneficial to the species because Management Unit, 125 territories for the wildlife resource management issues or the proposed rule identifies those lands San Diego Management Unit, and 25 for concerns tribal governments may have that are essential to the conservation of the Salton Management Unit (Service and would like to discuss with or seek the flycatcher and which may require 2002, p. 84). the technical assistance of the Service. special management considerations or Within the Santa Ana Management Benefits of Inclusion—Southern protection. The process of proposing Unit, approximately 3,815 ha (9,451 ac) of lands were identified as essential to California Tribal Partnerships and finalizing revised critical habitat provides the opportunity for peer the flycatcher. The Ramona Band of As discussed above under review and public comment on habitat Cahuilla, located within this Application of Section 4(b)(2) of the Act, we determined meets the definition of management unit, only consists of 1.8 Federal agencies, in consultation with critical habitat. This process is valuable ha (4.4 ac) of land identified as essential the Service, must ensure that their to land owners and managers in to the flycatcher. Within the San Diego actions are not likely to jeopardize the prioritizing conservation and Management Unit, approximately 3,827 continued existence of any listed management of identified areas. ha (9,459 ac) of lands were identified as species or result in the destruction or However, in the case of the flycatcher, essential to the flycatcher. The Barona adverse modification of any designated the educational benefits have largely Group of Capitan Grande Band of critical habitat of such species. The been realized by the previous efforts Mission Indians of the Barona difference in the outcomes of the including the previous critical habitat Reservation, the Viejas (Baron Long) jeopardy analysis and the adverse designation published in the Federal Group of Capitan Grande Mission modification analysis represents the Register on October 19, 2005 (70 FR Indians of the Viejas Reservation, and regulatory benefit and costs of critical 60886); our October 12, 2004, proposed the Pala Band of Luisen˜ o Mission habitat. critical habitat rule (69 FR 60706); the Indians of the Pala Reservation, located However, for some species, and in Recovery Plan (Service 2002, entire); within this management unit, only some locations, the outcome of these our first flycatcher critical habitat consists of 283 ha (700 ac) of land

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identified as essential to the flycatcher. In accordance with the Presidential Benefits of Exclusion Outweigh the Within the Salton Management Unit, memorandums of April 29, 1994, and Benefits of Inclusion—Southern approximately 312 ha (772 ac) of lands November 9, 2009, we believe that, to California Tribal Partnerships were identified as essential to the the maximum extent possible, tribes are We reviewed and evaluated the flycatcher. The Iipay Nation of Santa the appropriate governmental entities to benefits of inclusion and the benefits of Ysabel, located within this management manage their lands and tribal trust exclusion of these southern California unit, only consists of 9.0 ha (22.1 ac) of resources, and that we are responsible tribal lands as flycatcher critical habitat. land identified as essential to the for strengthening government-to- Including these tribal lands in the final flycatcher. Therefore, the proposed government relationships with tribes. revised critical habitat designation for tribal lands represent a very small Because of the unique government-to- the flycatcher would likely provide amount of the essential flycatcher government relationship between Indian minimal additional protection under habitat available in these Management tribes and the United States, it is section 7(a)(2) of the Act when there is Units. important for us to establish and a Federal nexus, and the designation The designation of flycatcher critical maintain an effective working will also not likely add benefits as an habitat may also trigger some of the relationship and mutual partnership educational tool for tribal members provisions in other secondary laws such with these southern California tribes to regarding the flycatcher and the as State environmental laws if they promote the conservation of the physical and biological features analyze the potential for projects to flycatcher and other sensitive species. essential to its conservation. We believe significantly affect the environment. Maintaining positive working past and future coordination with these The additional protections associated relationships with tribes is key to southern California tribes will provide with critical habitat may be beneficial in implementing natural resource sufficient education regarding flycatcher areas not currently conserved or programs of mutual interest, including habitat conservation needs. We also addressed by management plans. habitat conservation planning efforts. Critical habitat may signal the presence During the public comment period, anticipate limited ancillary benefit from of sensitive habitat that could otherwise we received comments from tribes other environmental laws if these areas be missed in the review process for expressing their view that critical are designated as critical habitat because these other environmental laws. habitat designation is an unwarranted of the listing of the flycatcher as an However, we believe that fish, wildlife, and unwanted intrusion into tribal self- endangered species and the educational and other natural resources on tribal governance. This sentiment has been awareness of these tribes. Absent critical lands are better managed under tribal expressed by other tribes in previous habitat on tribal lands, future projects authorities, policies, and programs than rulemakings (such as the 2007 proposed requiring Federal funding, through Federal regulation wherever critical habitat designation for authorization, or permits would still be possible and practicable. peninsular bighorn sheep (72 FR 57739; subject to consultation under section The stream segments we identified as October 10, 2007), 2009 proposed 7(a)(2) of the Act to ensure such projects essential on these southern California critical habitat designation for Casey’s will not jeopardize the continued tribal lands are considered occupied. As June beetle (74 FR 32857; July 09, 2009), existence of the flycatcher; therefore, we a result, we find that the incremental and 2009 proposed revised critical believe the additional limited regulatory regulatory benefits of critical habitat habitat designation for arroyo toad (74 incremental benefit of designating designation on these tribal lands may be FR 52612; October 13, 2009). Critical critical habitat on these southern minimal. Additionally, we believe the habitat designation on these southern California tribal lands is minimized. In educational benefits of critical habitat California tribes would potentially addition, the proposed tribal lands as designation on these southern California damage our working relationship with essential to the flycatcher represents a tribal lands may have been realized the tribes. We believe excluding these very small portion of essential habitats through publication of the listing rule southern California tribes from critical in each effected management unit. for the flycatcher, previous critical habitat will help preserve the Therefore, in keeping with our tribal habitat designations, the proposed rule relationships we have worked to trust responsibilities as stated in to revise critical habitat, and Recovery develop and are currently building with Secretarial Order 3206, we believe that Plan. Therefore, we find the limited the tribes, and foster future the conservation needs of the flycatcher incremental regulatory and educational partnerships. can be achieved by limiting the benefits of critical habitat designation to Therefore, we believe significant designation to other non-tribal lands. be largely redundant with that provided benefits would be realized by forgoing Conversely, the benefits of excluding by listing, previous critical habitat designation of critical habitat on tribal these southern California tribal lands as designations, and past recovery lands managed by these southern flycatcher critical habitat are significant. planning efforts. California tribes. These benefits include: Exclusion of these lands from critical (1) Continuation and strengthening of habitat will help preserve the Benefits of Exclusion—Southern our effective working relationships with partnership we have developed with the California Tribal Partnerships the tribes to promote conservation of the tribes and strengthen those we are Under Secretarial Order 3206, flycatcher and its habitat; (2) allowing building with other tribes, and foster American Indian Tribal Rights, Federal- for continued meaningful collaboration future partnerships and development of Tribal Trust Responsibilities, and the and cooperation in working toward management plans. These tribes and the Act, we recognize that we must carry recovering this species, including BIA emphasized through comment out our responsibilities under the Act in conservation benefits that might not letters their belief that designation of a manner that harmonizes the Federal otherwise occur; and (3) encouragement critical habitat on tribal land trust responsibility to tribes and tribal of other tribes to complete management undermines tribal sovereign sovereignty while striving to ensure that plans in the future on other reservations governmental authority and interferes tribes do not bear a disproportionate for this, and other federally listed and with the cooperative government-to- burden for the conservation of listed sensitive species, and engage in government trust relationship between species, so as to avoid or minimize the meaningful collaboration and the tribes and the United States. We are potential for conflict and confrontation. cooperation. committed to working with our tribal

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partners to further the conservation of Tribal Conservation Partnerships, New of the flycatcher. In addition, based on the flycatcher and other endangered and Mexico the long-term goals of restoring threatened species. The partnerships we Rio Grande Recovery Unit, Upper Rio additional wetland and native habitat, have and are developing with these Grande Management Unit the Pueblo has shown that it is southern California tribes will help managing its resources to meet its Both the Ohkay Owingeh (formerly facilitate cooperation towards flycatcher traditional and cultural needs, while referred to as the San Juan Pueblo) and addressing the conservation needs of the recovery, implementation of flycatcher the Santa Clara Pueblo occur adjacent to conservation actions, and the sharing flycatcher. Currently, both the Ohkay each other along the upper Rio Grande Owingeh and Santa Clara information on flycatcher distribution in New Mexico. Because they share and abundance. Therefore, in Environmental Affairs Department similar locations, habitat conditions, employs tribal members who work on consideration of the relevant impact to issues, and concerns, and they can holistic habitat improvement and our government-to-government cooperate and implement similar management, which includes relationship with these southern projects from similar sources, our endangered and threatened species and California tribes and our current and exclusion analysis for these two pueblos their habitat. future conservation partnerships, we is combined below. Neither of these The long-term goal of riparian determined the significant benefits of pueblos submitted a flycatcher specific management on Ohkay Owingeh Pueblo exclusion outweigh the benefits of management plan, because they manage is to make significant additions of critical habitat designation. their lands in a holistic manner. wetland areas for breeding flycatchers, In summary, we find that the However, they both have established as well as implement innovative conservation partnerships with the exclusion of these southern California management techniques, decrease fire Service and have implemented tribal lands from this final revised hazards by restoring native vegetation, conservation and recovery actions for critical habitat will preserve our share information with other habitat the improvement of riparian habitat and managers, utilize habitat managment partnership with the tribe and foster the flycatcher. As a result, in order to projects in the education of the tribal future collaborative efforts to conserve reduce replication of similar text, we community and surrounding and recover the flycatcher. These have combined our exclusion analysis community, and provide a working and partnership benefits are significant and for these pueblos below. training environment for the people of outweigh the limited potential Ohkay Owingeh Pueblo (San Juan) the Pueblo. regulatory and educational benefits of In June of 1993, the flycatcher was including 11.2 km (7.0 mi) of stream Ohkay Owingeh Pueblo is located documented on the west side of the Rio within these southern California tribal along the Rio Grande just north of Grande at Ohkay Owingeh Pueblo as a lands as flycatcher critical habitat. Espanola in Rio Arriba County, New biological assessment was being Mexico, and adjoins the lands of Santa prepared for the proposed NM 74 Bridge Exclusion Will Not Result in Extinction Clara Pueblo. The Ohkay Owingeh project. The project proposed to replace of the Species—Southern California Pueblo includes the southern or an existing bridge and two-lane road Tribal Partnerships downstream end of the Velarde reach of section with a newly located bridge and the Rio Grande, and comprises the We determined that the exclusion of two-lane road with shoulders. largest contiguous area of generally 11.2 km (7.0 mi) of stream along these Subsequent evaluations indicated that a intact riparian woodland, as well as the viable population of flycatchers was southern California tribal lands from largest riparian area under the control of utilizing the area. this revised final designation of a single landowner, within the Velarde The presence of the flycatcher flycatcher critical habitat will not result reach. A total of about 16.6 km (10.3 mi) prompted the Pueblo to manage and in extinction of the species. The of the Rio Grande are located within the improve riparian habitat and associated jeopardy standard of section 7(a)(2) of Pueblo and over 450 ha (1100 acres) of wetlands for the flycatcher. Habitat the Act and routine implementation of riparian habitat are still extant within within the Pueblo is much degraded conservation measures through the the Pueblo boundaries. We proposed a relative to historic conditions for two section 7 consultation process due to 9.3-km (5.8-mi) segment of the Rio main reasons: (1) River channelization flycatcher and other federally listed Grande on Ohkay Owingeh Pueblo as that has caused drying of the floodplain species occupancy provide assurances flycatcher critical habitat. desiccation, cessation of overbank that this species will not go extinct as While the Ohkay Owingeh Pueblo flooding, and disruption of river a result of exclusion from critical habitat does not have a flycatcher specific function processes; and (2) intensive designation. Additionally, the combined Management Plan, they have invasion by nonnative trees, primarily amount of these tribal lands and implemented flycatcher habitat Russian olives. The increasing individually within their Management management and protection measures. frequency and severity of fires in the Rio Units represents a small portion of the We have consolidated information on Grande riparian area, accompanied by overall amount of stream segments the past, present, and future voluntary changes in vegetation and the water designated within the Santa Ana, San measures, habitat improvement projects, regime, underscored the urgency the Diego, and Salton Management Units. and management to conserve the need to reduce habitat stressors and Therefore, based on the above flycatcher and its habitat on lands of improve stream function and riparian Ohkay Owingeh Pueblo. habitat. discussion the Secretary is exercising Based on their traditional beliefs and The Ohkay Owingeh Pueblo his discretion to exclude approximately ties to the bosque (or riparian area), the immediately began management and 11.2 km (7.0 mi) along stream segments Ohkay Owingeh Pueblo continues to conservation projects to benefit the within these southern California tribal protect, conserve, and improve the flycatcher following the bridge project. lands from this final revised critical riparian habitat the flycatcher relies One ha (2 ac) of native riparian habitat designation. upon. The Pueblo has invested a vegetation were planted on the significant amount of ongoing time and reclaimed old roadway; 0.1 ha (0.22 ac) effort to address the needs and recovery of riparian vegetation were planted

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adjacent to the new bridge; 0.4 ha (1 ac) Grande on Santa Clara Pueblo as In 2006 and 2008, the Santa Clara of riparian woodland was restored flycatcher critical habitat. Pueblo received a Tribal Wildlife Grant adjacent to the project; and wetland While the Santa Clara Pueblo does not from the Service to help develop multi- restoration, which included open water have a flycatcher specific Management storied riparian vegetation. These and saturated soils, was developed at Plan, they have implemented flycatcher projects occurred at two separate three sites encompassing another 0.4 ha habitat management and protection locations (Big Rock Pond and Barrancos (1 ac). measures. We have consolidated Arroyo), but both focused on reducing Since 1999, the Pueblo has initiated information on the past, present, and hazardous fuels, removal of trash, and or completed a variety of habitat future voluntary measures, restoration wetland and riparian habitat expansion improvement and conservation projects, projects, and management to conserve and enhancement. The Barrancos including further wetland creation and the flycatcher and its habitat. Arroyo Project resulted in planting over expansion, flycatcher habitat The Rio Grande is an integral part of 30,000 native shrubs, trees, and enhancement with vegetation and open the Santa Clara Pueblo’s history, herbaceous wetland plants. In 2008, the water, and management to improve the culture, and continued preservation as a Santa Clara Pueblo received a ‘‘Habitat occurrence of native riparian habitat. homeland. They view all of their natural Enhancement Award’’ from the New These projects were funded through resources, including the Rio Grande Mexico Riparian Council due to the various programs of the Environmental riparian area, as important to the Pueblo’s outstanding riparian habitat Protection Agency, Wildland Urban survival of the Santa Clara people. Many improvement work. Interface Collaborative Forest of the various vegetative communities As mentioned above, in 2005 the Restoration Program, Endangered within the Pueblo and the innumerable Santa Clara Pueblo, along with the Species Act Collaborative Program, wildlife species they support have adjacent pueblos of Ohkay Owingeh and significant traditional and spiritual Service Partners for Fish and Wildlife San Ildefonso partnered with the Corps value to the tribal people. Program, and the State of New Mexico. by entering into an agreement to protect In June of 1993, the flycatcher was In total, these projects addressed 301 ha and improve riparian habitat, in part, by documented on the west side of the Rio conducting a watershed feasibility (744 ac) of habitat on the Pueblo with Grande north of the NM 74 Bridge as a direct and indirect benefits to the study. This feasibility study, explores biological assessment was being ways to holistically developed projects flycatcher. The project implementations prepared for the proposed bridge include conservation, monitoring, and to improve the function of the river and project. The project proposed to replace reduce impacts of flooding that is management for the flycatcher into the an existing bridge and two-lane road anticipated to improve overall riparian future. These efforts contribute to the section with a newly located bridge and habitat conditions, including those for long-term goals of recovery for the two-lane road with shoulders. the flycatcher. flycatcher. In addition to the habitat Subsequent evaluations indicated that a work, the Pueblo supports flycatcher viable population of flycatchers was Benefits of Inclusion—Ohkay Owingeh surveys and nest monitoring on the utilizing the area and was nesting on the and Santa Clara Pueblo Pueblo lands. site at Ohkay Owingeh Pueblo, but As discussed above under In 2004, the Pueblo sponsored a adjacent to Santa Clara Pueblo. We have Application of Section 4(b)(2) of the Act, multi-organization riparian restoration determined in the criteria described in Federal agencies, in consultation with conference on their lands and are this rule, that the upper Rio Grande the Service, must ensure that their collaborating with nearby pueblos and through the Santa Clara Pueblo is actions are not likely to jeopardize the agencies on improving stream function occupied by flycatchers because of the continued existence of any listed and riparian habitat. Their management detections of flycatcher territories species or result in the destruction or efforts and flycatcher conservation were throughout the length of the Rio Grande, adverse modification of any designated highlighted at the conference. As such, and its migratory, dispersal, and critical habitat of such species. The the Service and its partners gained foraging behavior. difference in the outcomes of the valuable information about restoring Over the last 11 years, the Santa Clara jeopardy analysis and the adverse flycatcher habitat and management Pueblo has restored riparian habitat for modification analysis represents the techniques that can be applied to other the good of the entire landscape and regulatory benefit and costs of critical riparian areas. In 2005, they formalized associated wetlands for the flycatcher. habitat. this effort by entering into an agreement The Santa Clara Pueblo has partnered The Rio Grande within the upper Rio with the nearby pueblos and the Corps with the Service, BIA, USFS, New Grande Management Units is known to to protect and improve riparian habitat, Mexico Natural Resource Department, be occupied by flycatchers and in part, by conducting a watershed and New Mexico Association of therefore, if a Federal action or feasibility study on tribal lands. Conservation Districts. Habitat within permitting occurs, there is a catalyst for the Pueblo is degraded relative to evaluation under section 7 of the Act. Santa Clara Pueblo historic conditions for two main Our section 7 consultation history at the Santa Clara Pueblo, is located in Rio reasons: (1) River channelization that pueblos of Ohkay Owingeh and Santa Arriba County, New Mexico, and has caused drying of the floodplain, Clara shows that since listing, no formal adjoins the lands of Ohkay Owingeh cessation of overbank flooding, and section 7 consultations addressing the Pueblo. The Santa Clara, Ohkay disruption of river function processes; flycatcher have occurred implementing Owingeh, and San Ildefonso Pueblos and (2) intensive invasion by nonnative federal actions. We have conducted form nearly a contiguous segment of the trees, primarily Russian olives. The informal consultations with agencies Rio Grande. The Santa Clara Pueblo increasing frequency and severity of implementing actions or providing encompasses more than 21,449 ha fires in the Rio Grande riparian habitat, funding on the pueblos, provided the (53,000 ac) of diverse vegetative accompanied by changes in vegetation technical assistance on project communities, including approximately and the water regime, underscores the implementation, and the Corps has 714 ha (1,764 ac) of riparian habitat urgency of to reduce habitat stressors coordinated with the pueblos along the along the Rio Grande. We proposed a and improve the quality of riparian upper Rio Grande on projects. However, 10.2-km (6.4-mi) segment of the Rio habitat. overall, since listing in 1995, no formal

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section 7 consultations have occurred at no previous formal section 7 coordination for other critical habitat the pueblos of Ohkay Owingeh and consultations completed, the effect of a proposals) and other efforts such as Santa Clara. Effects to the flycatcher critical habitat designation on these development of the Recovery Plan, we from federal projects have all resulted in lands is minimized. have met and communicated with the insignificant and discountable Another important benefit of pueblos to discuss how they might be conclusions because conservation including lands in a critical habitat affected by the regulations associated measures have focused on habitat designation is that the designation can with flycatcher management, flycatcher improvement and management for the serve to educate landowners, agencies, recovery, and the designation of critical flycatcher and its habitat. Because of tribes, and the public regarding the habitat. As such, we established how the Pueblo has chosen to manage potential conservation value of an area, relationships specific to flycatcher and conserve their lands and the lack of and may help focus conservation efforts conservation. As part of our past section 7 consultation history, we on areas of high conservation value for relationship, we have provided do not anticipate that actions by the certain species. Any information about technical assistance to develop pueblos would considerably change in the flycatcher that reaches a wide measures to conserve the flycatcher and the future, generating a noticeable audience, including parties engaged in its habitat on their lands. These increase in section 7 consultations that conservation activities, is valuable. The proactive actions were conducted in would cause impacts to flycatchers and designation of critical habitat may also accordance with Secretarial Order 3206, flycatcher habitat. Therefore, with strengthen or reinforce some Federal ‘‘American Indian Tribal Rights, migratory and territorial flycatchers laws such as the Clean Water Act. These Federal-Tribal Trust Responsibilities, using the pueblos and no formal section laws analyze the potential for projects to and the Endangered Species Act’’ (June 7 consultations completed, the effect of significantly affect the environment. 5, 1997); the relevant provision of the a critical habitat designation on these Critical habitat may signal the presence Departmental Manual of the Department lands is minimized. of sensitive habitat that could otherwise of the Interior (512 DM 2); and be missed in the review process for Should we designate critical habitat Secretarial Order 3317, ‘‘Department of these other environmental laws. on the pueblos, our previous section 7 Interior Policy on Consultation with The pueblos are very familiar with the Indian Tribes’’ (December 1, 2011). We consultation history indicates that there flycatcher and their habitat needs, and could be some, but likely few, believe that the pueblos of Ohkay are working with the Service to address Owingeh and Santa Clara should be the regulatory benefits to the flycatcher. As flycatcher management and recovery. described above, even with flycatchers governmental entities to manage and Further, Pueblo lands were included in promote flycatcher conservation on occurring on the pueblos, no formal the proposed designation in 2004 and flycatcher-related section 7 their lands. During our communication during this current designation process. with the pueblos of Ohkay Owingeh and consultations have occurred. Projects Representatives from the pueblos have Santa Clara, we recognized and initiated by Federal agencies in the attended meetings with the Service endorsed their fundamental right to future could be associated with actions discussing the flycatcher, its habitat and provide for tribal resource management associated with maintenance of rights- recovery, and critical habitat. Thus, the activities, including those relating to of-way, water management, or educational benefits that might follow riparian habitat. implementation of grants or funding of critical habitat designation, such as habitat improvement projects. When we providing information to the pueblos on We have coordinated and collaborated review projects addressing the areas that are important for the long- with the pueblos of Ohkay Owingeh and flycatcher pursuant to section 7 of the term survival and conservation of the Santa Clara on the management and Act, we commonly examine species, may have already been recovery of the flycatcher and their conservation measures associated with provided. For these reasons, we believe habitat and have established a the project for consistency with there is little educational benefit or conservation partnership. The pueblos strategies described within the Recovery support for other laws and regulations have expressed that their lands, and Plan. Where there is consistency with attributable to critical habitat beyond specifically riparian habitat, are managing habitat and implementing those benefits already achieved from connected to their cultural and religious appropriate conservation measures, it listing the flycatcher under the Act. beliefs, and as a result they have a would be unlikely that a consultation strong commitment and reverence would result in a determination of Benefits of Exclusion—Ohkay Owingeh toward its stewardship and adverse modification of critical habitat. and Santa Clara Pueblo conservation. Many tribes and pueblos Therefore, when the threshold for The benefits of excluding the pueblos recognize that their management of adverse modification is not reached, of Ohkay Owingeh and Santa Clara from riparian habitat and conservation of the only additional conservation designated critical habitat include: (1) flycatcher are common goals they share recommendations could result from a The advancement of our Federal Indian with the Service. The pueblos’ section 7 consultation, but such Trust obligations and our deference to management actions are evidence of measures would be discretionary on the tribes to develop and implement tribal their commitment toward measures to part of the Federal agency. Because of conservation and natural resource improve habitat consistent with how the pueblos have chosen to manage management plans for their lands and strategies found in the Recovery Plan. and conserve their lands and the lack of resources, which includes the Some of the common management plans a past formal section 7 consultation flycatcher; (2) the conservation benefits strategies are maintaining riparian history, we do not anticipate that the to the flycatcher and its habitat that conservation areas, preserving habitat, pueblos’ actions would considerably might not otherwise occur; and (3) the improving habitat, reducing occurrence change in the future, generating a maintenance of effective collaboration of fire, and conducting flycatcher noticeable increase in section 7 and cooperation to promote the surveys. The Ohkay Owingeh and Santa consultations that would cause impacts conservation of the flycatcher and its Clara Environmental Affairs to flycatchers and flycatcher habitat. habitat, and other species. Departments implement conservation Therefore, with migratory and territorial During the development of the measures to improve riparian habitat flycatchers using these tribal lands and flycatcher critical habitat proposal (and conditions. Having information on the

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distribution and abundance of schedules, related documents, and are minimized because they are flycatchers available to pueblos creates public hearings; and our interest in provided for through other mechanisms, effective conservation through any consulting with them on a government- such as (1) the advancement of our project review process. to-government basis at their request. We Federal Indian Trust obligations; (2) the The designation of critical habitat on also followed up our correspondence conservation benefits to the flycatcher the pueblos of Ohkay Owingeh and with telephone calls and electronic mail and its habitat from implementation of Santa Clara would be expected to to assist with any questions. During the flycatcher conservation actions; and (3) adversely impact our working comment period, we received input the maintenance of effective relationship. During our discussions from many tribes and pueblos and BIA collaboration and cooperation to with the pueblos and from comments offices expressing the view that promote the conservation of the we received on the proposed designating flycatcher critical habitat on flycatcher and its habitat. designation of critical habitat, they tribal land would adversely affect the The benefits of excluding the pueblos informed us that critical habitat would Service’s working relationship with all of Ohkay Owingeh and Santa Clara from be viewed as an intrusion on their tribes. Many noted that beneficial being designated as flycatcher critical sovereign abilities to manage natural cooperative working relationships habitat are more significant and include resources in accordance with their own between the Service and tribes have encouraging the continued policies, customs, and laws. The assisted in the conservation of listed implementation of tribal management perceived restrictions of a critical species and other natural resources. and conservation measures such as habitat designation could have a more They indicated that critical habitat monitoring, survey, habitat management damaging effect to coordination efforts, designation on these tribes or pueblos and protection, and fire-risk reduction possibly preventing actions that might would amount to additional Federal activities that are planned for the future maintain, improve, or restore habitat for regulation of sovereign Nations’ lands, or are currently being implemented. the flycatcher and other species. To this and would be viewed as an unwarranted Overall, these conservation actions and end, we found the pueblos of Ohkay and unwanted intrusion into tribal management of flycatcher habitat likely Owingeh and Santa Clara would prefer natural resource programs. We conclude accomplishes greater conservation than to work with us on a government-to- that our working relationships with the would be available through the government basis. For these reasons, we pueblos of Ohkay Owingeh and Santa implementation of a designation of believe that our working relationships Clara on a government-to-government critical habitat on a project-by-project with would be better maintained if they basis has been extremely beneficial in basis (especially when these formal were excluded from the designation of implementing natural resource section 7 consultations rarely occur). flycatcher critical habitat. We view this programs of mutual interest, and that These programs will allow the pueblos as a substantial benefit since we have these productive relationships would be to manage their natural resources to developed a cooperative working compromised by a critical habitat benefit riparian habitat for the relationship for the mutual benefit of designation of these lands. flycatcher, without the perception of flycatcher conservation and other We have an effective working Federal Government intrusion. This endangered and threatened species. relationship with the pueblos of Ohkay philosophy is also consistent with our We indicated in the proposed rule Owingeh and Santa Clara, which was published policies on Native American that our final decision regarding the established and has evolved through natural resource management. The exclusions of tribal lands under 4(b)(2) informal consultations. We believe that exclusion of these areas will likely also of the Act would consider tribal the pueblos of Ohkay Owingeh and provide additional benefits to the management and the recognition of their Santa Clara are willing to work flycatcher and other listed species that capability to appropriately manage their cooperatively with us and others to would not otherwise be available own resources, and the government-to- benefit other listed species, but only if without the Service’s maintaining a government relationship of the United they view the relationship as mutually cooperative working relationship. In States with tribal entities (76 FR 50542, beneficial. Consequently, the conclusion, we find that the benefits of August 15, 2011, p. 50584). We also development of future voluntary excluding the pueblos of Ohkay acknowledged our responsibilities to management actions for other listed Owingeh and Santa Clara from critical work directly with tribes in developing species may be compromised if these habitat designation outweigh the programs for healthy ecosystems, that lands are designated as critical habitat benefits of including these areas. tribal lands are not subject to the same for the flycatcher. Thus, a benefit of Exclusion Will Not Result in Extinction controls as Federal public lands, our excluding these lands is future of the Species—Ohkay Owingeh and need to remain sensitive to Indian conservation efforts that would benefit Santa Clara Pueblo culture, and to make information other listed species. available to tribes (76 FR 50542, August We have determined that exclusion of 15, 2011, p. 50596). We identified all Benefits of Exclusion Outweigh the the pueblos of Ohkay Owingeh and tribal land included within the proposal Benefits of Inclusion—Ohkay Owingeh Santa Clara will not result in extinction as areas we were considering for and Santa Clara Pueblo of the species. First, Federal activities exclusion and our continued The benefits of including the pueblos on this area that may affect the coordination with tribes and pueblos of Ohkay Owingeh and Santa Clara in flycatcher will require evaluation under (76 FR 50542, August 15, 2011, pp. the critical habitat designation are section 7 of the Act, because the 50582–50583). limited to the incremental benefits flycatcher occurs on these lands. We coordinated and communicated gained through the regulatory Section 7(a)(2) of the Act requires with the pueblos of Ohkay Owingeh and requirement to consult under section 7 Federal agencies to ensure that activities Santa Clara throughout the revision of and consideration of the need to avoid they authorize, fund, or carry out are not flycatcher critical habitat by providing adverse modification of critical habitat, likely to jeopardize the continued them information on: Implementation of agency and educational awareness, and existence of listed species. Therefore, section 4(b)(2) of the Act; the Recovery the implementation of other law and even without critical habitat designation Plan; Management Plan templates, regulations. However, as discussed in on this land, federal activities that occur guidance, and review; critical habitat detail above, we believe these benefits on these lands cannot jeopardize the

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continued existence of the flycatcher. Peer Review Comments along the Middle Rio Grande in New Second, the pueblos are committed to In accordance with our peer review Mexico, researchers have not witnessed protecting and managing Pueblo lands policy published on July 1, 1994 (59 FR the type of breeding flycatcher and species found on those lands 34270), we solicited independent movements within years or between according to their tribal, cultural, and opinions from five knowledgeable years reported in Paxton et al. (2007, p. natural resource management objectives, individuals who have expertise with the 76). Shifts in territories may occur; which provide conservation benefits for species, with the geographic region however the statement in the proposal the species and its habitat. In short, the where the subspecies occurs, or that flycatchers ‘‘regularly’’ will pueblos are committed to greater familiarity with the principles of disperse or move to new breeding sites conservation measures on their land conservation biology. Of the five 30 to 40 km (18 to 25 mi) away within a particular basin within the same year than would be available through the individuals contacted, four responded. may be an overstatement. The reviewer designation of critical habitat. The peer reviewers that submitted wrote that based on the detection and Accordingly, we have determined that comments supported the science used to establishment of flycatcher territories the pueblos of Ohkay Owingeh and develop the proposal and provided us along the Middle Rio Grande, Santa Clara should be excluded under with comments, which are included in flycatchers do not appear to regularly section 4(b)(2) of the Act because the the summary below and incorporated disperse more than a few kilometers or benefits of exclusion outweigh the into the final rule, as appropriate. We miles, and in general are not likely to benefits of inclusion and will not cause received comments from the peer disperse more than 16 to 24 km (10 to the extinction of the species. reviewers during the comment period 15 mi). Therefore, a reduction in the Summary of Comments and on our proposed rule. Peer reviewer geographic extent of population Recommendations comments are addressed in the connectivity should be considered. following summary and incorporated We requested written comments from Our Response: In order to determine into the final rule as appropriate. the connectivity of small separate the public on the proposed designation Comment (1): Peer reviewers of critical habitat for the flycatcher flycatcher breeding sites and the commented that we made good use of distance from large populations to during two comment periods. The first the current data, published and gray comment period associated with the evaluate for critical habitat, we used the literature, expert opinion, and the known between-year movements of publication of the proposed rule (76 FR Recovery Plan (Service 2002, entire). 50542) opened on August 15, 2011, and banded adult and juvenile flycatchers Peer reviewers agreed with our reported from USGS (Paxton et al. 2007, closed on October 14, 2011. We also justification to designate critical habitat requested comments on the proposed p. 76). This study is the most as river segments, our definition of a comprehensive banding and movement critical habitat designation and large population, and that small associated draft economic analysis and study conducted on the flycatcher, populations in close proximity equaled occurring over a decade and involving draft environmental assessment during a a large population. With one the banding and tracking of over 1,500 comment period that opened on July 12, clarification (see below), peer reviewers flycatchers (Paxton et al. 2007, p. 1). 2012, and closed on September 10, 2012 agreed with our rationale to use a 35-km From one season to the next, flycatchers (77 FR 41147). We did receive one (22-mi) radius to determine the degree have returned very near to the area request for a public hearing from Globe of connectivity to assign smaller previously used (50 m (150 feet)) and County. We held a public hearing on separate flycatcher breeding sites and have moved as far away as 444 km (275 August 16, 2012, in San Carlos, Arizona. the distance from large populations to mi). However, more common were We also contacted appropriate Federal, evaluate for designation of areas as movements toward the lower end of State, and local agencies; scientific critical habitat. All reviewers who these two extremes. As opposed to using organizations; and other interested provided input agreed with our the word ‘‘regularly’’ as the peer parties and invited them to comment on approach to use the Recovery Plan and reviewer noticed, we could have more the proposed rule, draft economic expert opinion to select critical habitat accurately described that ‘‘locations analysis, and draft environmental segments where few or no territories with breeding habitat that are within 30 assessment during these comment were known. Additionally, all peer to 40 km (18 to 25 mi) of each other will periods. reviewers agreed with our identification have higher meta-population During the two comment periods, we of the importance of migration habitat connectivity, and there is a higher received over 240 comment letters on and how we included it within the probability of colonization of new the proposed critical habitat designation. Peer reviewers agreed with habitats that are within this distance designation, draft economic analysis, or how we identified and categorized (Paxton et al. 2007, p. 76).’’ As a result draft environmental assessment. During special management considerations or of this change in wording, we believe the August 16, 2012, public hearing, no protections (see below for a clarifying the flycatcher movements detected in individuals or organizations made comment) as well as our description of New Mexico are more accurately comments on the designation of revised the lateral extend of critical habitat. captured and the intent of our statement critical habitat for the flycatcher. All Our Response: We believe we have is clearer. substantive information provided considered and applied to this Further, the shorter between-year during comment periods has either been designation the best available scientific distances detected on the Rio Grande in incorporated directly into this final and commercial information regarding New Mexico may be a result of the determination or addressed below. the flycatcher. recent success of nesting flycatchers at Comments we received were grouped Comment (2): One peer reviewer those sites. As USGS reported, ‘‘the into several general issues specifically discussed the 35-km (22-mi) radius to higher a flycatcher’s productivity in one relating to the proposed critical habitat determine connectivity, provided year, the more likely it was to return to designation for the flycatcher and are information on results of flycatcher the same territory the following year. addressed in the following summary movements in New Mexico, and Those individuals that had higher than and incorporated into the final rule as commented on our use of the term normal reproductive success and appropriate. ‘‘regularly.’’ The reviewer discussed that showed territory fidelity continued to

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reproduce above average, while those found in the Recovery Plan (Service partners was very helpful, and enabled that did poorly and moved tended to do 2002, Appendices H and K). us to refine our understanding of habitat better than in the previous year (Paxton essential to the conservation of the Comments From States et al. 2007, p. 76).’’ species, and in the case of occupied Comment (3): One peer reviewer Section 4(i) of the Act states, ‘‘the habitat, habitat that contains physical or discussed that it may be appropriate to Secretary shall submit to the State biological features that may require describe the relative importance of the agency a written justification for his special management considerations or list of special management failure to adopt regulations consistent protections. We based the proposed rule considerations and protections. The with the agency’s comments or on the best available information at that reviewer was concerned that because we petition.’’ Accordingly, we provided time; we requested technical input from referred to the elimination or reduction notice about our proposed rule to all six a variety of partners, including the of exotic plants, this could be construed States where critical habitat was States, to help us refine the final critical as having additional importance for proposed (California, Nevada, Arizona, habitat designation. The final rule has flycatcher conservation. The reviewer Utah, New Mexico, and Colorado). been adjusted accordingly, including described that the research does not Comments we received from States modifying boundaries of critical habitat support any difference in flycatcher regarding the proposal to designate units, based on our partners’ site- health, reproductive success, or revised critical habitat for the flycatcher specific biological expertise with the survivorship when comparing nesting are addressed below. We received species (see Summary of Changes from flycatcher use of native vegetation to comments from State agencies of Proposed Rule section). habitat dominated with exotic tamarisk. Arizona, Nevada, New Mexico, and Comment (6): Although reevaluation Our Response: We agree with the Colorado. We also received a comment of recovery goals is not included in the reviewer that the science demonstrates from Utah Governor’s office. Two State proposed rule, the New Mexico that flycatchers can be equally agencies (AGFD and New Mexico Department of Game and Fish suggests successful in both suitable exotic Department of Game and Fish) establishing recovery goals in the future tamarisk and native vegetation (Sogge et expressed specific support for the for the Pecos River and designating al. 2005, p. 1). Many of the previous Service’s approach to designating Rattlesnake Springs, Eddy County, New beliefs associated with adverse impacts critical habitat for the flycatcher. Mexico, as critical habitat. of tamarisk on reducing water supply Comment (4): The Service has failed Our Response: The Recovery Plan and impacting wildlife populations to cooperate or consult with State and does not currently have recovery goals were largely overstated or inaccurate local agencies prior to designating or a management unit established for (Shafroth et al. 2010, pp. viii-xi). critical habitat for the flycatcher as the Pecos River, therefore, we did not As a result, it is not our intention to required under sections 2(c)(2) and propose any areas in the Pecos River suggest that removal or elimination of 7(a)(2) of the Act. ‘‘Consultation with drainage as critical habitat. The small tamarisk is a preferred flycatcher affected States,’’ where required by population of flycatcher territories at management need. On the contrary, we statute but not defined by Congress, Rattlesnake Springs continues to be believe that because of the sustained means something more than the monitored by the New Mexico interest in the removal of tamarisk, our invitation of comments from the public; Department of Game and Fish and inclusion of this item is to provide the commenter cited California Carlsbad Caverns National Park. measures that reduces the Wilderness Coalition v. United States Although this location is not included implementation of poorly designed Dept. of Energy, 631 F.3d 1072, 1087 within units where goals have been projects, reduces temporal impacts to (9th Cir. 2011) in support of this established, these areas and territories flycatcher habitat, and identifies argument. are still subject to consultation under strategies and considerations that would Our Response: During this the jeopardy provisions of section 7 of result in successful projects with designation process, we requested the Act and may play a role in recovery improved overall habitat quality. information from, and coordinated with regards to source population and For a number of reasons, we believe development of, the proposed critical population stability. that flycatcher habitat that is comprised habitat designation with appropriate Comment (7): The Colorado of tamarisk requires special State resource agencies in Arizona, Department of Natural Resources urges management considerations and Utah, Nevada, California, New Mexico, an assessment of the genetic status and protections. Tamarisk can be more and Colorado. The Service received distribution of the flycatcher. Further, flammable than native vegetation, and substantial information from a variety of other commenters noted that there are there may be widespread future impacts partners, including the States, to help us questions associated with the northern to flycatcher habitat associated with the refine the final critical habitat portion of the flycatcher’s range and the tamarisk leaf beetle. In order to address designation. The final rule has been boundaries of the range of the these issues, where flycatcher habitat is adjusted, accordingly, including southwestern subspecies. comprised of tamarisk, it is important to modifying boundaries of critical habitat Our Response: We are familiar with understand that reducing the proportion units, based on information provided this issue, and the collection and of tamarisk may be largely dependent on from peer review and public comments analysis of genetic information from reducing land or water management on site specific biological expertise on breeding flycatchers and history of stressors that may be preventing native the flycatcher. A summary of comments adjustment of the northern boundary in vegetation from flourishing. As a result, from States is provided below. Utah and Colorado is discussed within our special management considerations Comment (5): We received several the proposed rule. Following the and protections emphasize retaining comments from State resource agencies analysis of flycatcher genetic material native and exotic vegetation, while presenting site-specific information on across the northern part of the bird’s improving the distribution, abundance, areas that should or should not be range (Paxton 2000, pp. 3, 18–20), the and quality of flycatcher habitat by considered as critical habitat and areas northern boundary of this southwestern improving hydrologic conditions and that we should consider for exclusion. subspecies in Utah and Colorado was reducing land management stressors. Our Response: The information reduced (Service 2002, Figure 3). As a We encourage implementing strategies received from our State resource agency result, the southwestern subspecies’

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range only occurs in the southernmost habitat and territories appears to be flycatcher territories at Alamo Lake and portions of Utah and Colorado. This is limited. Although we did not designate downstream along the Bill Williams consistent with morphological it as critical habitat, it can still River. The Corps maintains an characteristics of museum specimens, contribute to flycatcher recovery and is obligation to consult under section 7 of where Behle (1985, pp. 54–57) argued subject to evaluation of Federal actions the Act on their current operations, and that flycatchers in northernmost Utah under the jeopardy standards of section those uncertain future operations or were E. t. adastus, those in the extreme 7 of the Act. activities that may adversely modify southern part of the State were E. t. Comment (9): The NDOW critical habitat. As a result, the extimus. recommended that the Service consider consultation requirement provides some The U.S. Geological Survey has excluding the proposed critical habitat benefit to flycatcher conservation. In continued to collect genetic information areas within the Pahranagat NWR from addition, we expect that ongoing to help refine the northern boundary of the final critical habitat designation. conservation efforts in this area will the subspecies’ range in Utah, Colorado, Our Response: We have reevaluated continue with or without critical habitat and New Mexico (Paxton et al. 2007a, the habitat at the Pahranagat NWR and designation, limiting the benefits of entire). They reconfirmed the genetic our final designation is reduced from excluding the area. Consequently, after markers that identify differences among the amount that was proposed (see reviewing the best available flycatcher subspecies, with breeding Summary of Changes from Proposed information, we have determined that sites clustering into two groups Rule section). The remaining area is the benefits of including these Federal separated approximately along the owned and managed by the Service. In lands as critical habitat outweigh the currently recognized boundary. A general, we found there are benefits to benefits of excluding this area. complication in refining the subspecies’ including federally owned area in the Comment (11): Multiple commenters northern boundary is that this region is designation of critical habitat because of questioned the proposed designations sparsely populated with breeding the Federal agencies’ obligation to on the Paria and San Juan Rivers. flycatchers, and therefore only minimal consult under section 7 of the Act on Specifically, one commenter asserted information is available (Paxton et al. activities that may adversely modify that the habitat along the Paria and San 2007a, p. 16). We encourage the survey critical habitat. The consultation Juan Rivers is not suitable for breeding and detection of flycatcher territories requirement provides some benefit to populations of flycatchers and should and collection of genetic samples to flycatcher conservation. We expect that not be incorporated into a critical further our understanding of this area, ongoing conservation efforts in this area habitat designation. Survey notes but we currently recognize the northern will continue with or without critical indicated that these segments are geographic boundary of the flycatcher as habitat designation, limiting the benefits ephemeral and dominated by exotic described in the Recovery Plan (Service of excluding the area. Consequently, we vegetation. Survey hours resulted in 2002, Figures 3, 4). have not determined that the benefits of only rare observations of migrant Comment (8): The Utah Governor’s excluding these areas outweigh the flycatchers, and the Utah Governor’s office recommended that the Service benefits of including these areas. office contends there is no evidence of analyze the habitat value of Kanab Creek Comment (10): AGFD supports willow flycatcher occupancy ever on the from the Highway 89 Bridge to the exclusion of Upper Alamo Lake Area Utah portion of the San Juan River and Stateline, as Utah Division of Wildlife from designation of critical habitat, specifically questioned the rationale for Resources’ surveys detect flycatchers including sections of the Bill Williams, designating the San Juan River as using this segment and some flycatchers Santa Maria, and Big Sandy Rivers that critical habitat when no nesting areas have remained through the breeding are included under the existing Alamo occur on the river. season. Lake State Wildlife Area Management Our Response: The Paria and San Juan Our Response: Kanab Creek occurs Plan. Rivers are a part of the Upper Colorado within the Middle Colorado Our Response: We identified this area Recovery Unit, primarily occurring Management Unit. From 2000 to 2007, as an area for possible exclusion in our throughout the Four Corners area of a single site was surveyed seven times proposed rule based on the existence of Utah, Colorado, Arizona, and New (Sogge and Durst 2008). No flycatcher a management plan. We continue to Mexico. We recognize that limited territories were detected in 6 years, and acknowledge that excluding this area information exists for this area, and, two territories were detected in 2002 would provide benefits to our through our proposed rule, we sought (Sogge and Durst 2008). Our partnership with AGFD. The Alamo additional information. We have results methodology focused on identifying State Wildlife Area has a successful from site-specific, project-related areas of habitat that are important for management plan that provides for surveys, but we are not familiar with reaching the numerical territory and maintenance of flycatcher habitat and any comprehensive or long-term surveys habitat-related goals described in the other species. Although recreation and along these streams. The flycatcher has Recovery Plan. We proposed just over wildlife at Alamo Lake is managed by been detected in this area in the past 74 km (46 mi) along the Colorado River the AGFD under agreement with the (likely as a migrant), no nesting as flycatcher critical habitat within the Corps, the conservation space of Alamo flycatchers have been detected here. Middle Colorado River Management Lake and Alamo Dam is owned and the The Flycatcher Recovery Team Unit. We believe these areas are capable dam operated by the Corps. Alamo Dam discussed that the low number of of reaching the 25 territory goal is operated primarily for flood control breeding sites and territories within the established in the Recovery Plan. (as compared to water storage and Upper Colorado Recovery Unit is We expect that in some Management delivery for other reservoirs) and probably a function of relatively low Units, critical habitat will not be typically remains at low levels, survey effort rather than an accurate designated in all locations where permitting occupancy of flycatcher reflection of the bird’s actual numbers flycatcher habitat occurs or may occur, habitat. The Corps has consulted with and distribution (Service 2002, p. 64) or where territories have been detected. the Service in the past on dam and that much willow riparian habitat While this portion of Kanab Creek has operations and the potential effects to occurs along drainages within this had nesting flycatcher habitat, the the flycatcher. To date, those operations Recovery Unit and remains to be reliability and abundance of flycatcher have supported the maintenance of surveyed (Service 2002, p. 64).

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Because the flycatcher is an unsuitable due to the presence of two flycatcher, and incremental impacts in endangered species, recognized by both roads, an operating farm, and an active this area are limited to administrative the Service and the State of Utah, it is gravel pit. The heavily traveled costs. expected that their distribution and Cottonwood Road directly abuts the Comment (14): State agencies from abundance is diminished. The absence Paria River segment for 6 km (4 mi). Colorado and New Mexico, the USBR, of detecting recent flycatcher territories Flycatcher territories were lost when and other commenters asked the Service along the San Juan River in Utah is bridges were built across riparian areas to exclude the area on the Rio Grande believed to be partly due to its rarity as (Service 2002, p. 37), and the lateral within Elephant Butte Reservoir in an endangered species and also to the presence of these roads is far more Sierra and Socorro Counties, New relatively low survey effort (Service intrusive than a bridge. Given that the Mexico, under section 4(b)(2) of the Act. 2002, p. 64). Unitt’s (1987, p. 150) Service has not studied the effects of a The reasons for exclusion as outlined by document, titled ‘‘Empidonax traillii road on potential habitat, the USBR fall under four categories: (1) extimus: An Endangered Subspecies,’’ commenter believed it would be Treaty obligations and national security summarized some of the recent Utah arbitrary for the Service to designate the considerations; (2) benefits of a historical distribution, describing Paria River segment. The comment management plan; (3) water storage and flycatcher summer nesting season stated that the farm and gravel pit on 2.4 persistence of primary constituent occurrence along the Virgin, San Juan, km (1.5 mi) greatly reduce the size of elements; and (4) economic value of and Colorado Rivers. the entire segment, and the continuing water deliveries. Further, the Colorado In contrast to our 2005 designation of human activity in the narrow corridor Department of Natural Resources flycatcher critical habitat, where we did renders the Paria River segment commented that the designation of not propose or designate critical habitat unsuitable. Therefore, the Paria River critical habitat on the Rio Grande could in the Upper Colorado Recovery Unit, lacks the listed primary constituent affect the Rio Grande Compact between the objective of this revision was to elements and is unsuitable due to the New Mexico, Texas, and Colorado. propose critical habitat in a distribution narrow canyon and human disturbance. Our Response: As part of the revised and abundance to meet Recovery Plan Our Response: While human activities critical habitat, the Service proposed a goals. The Recovery Team established can negatively impact willow flycatcher 211-km (131-mi) segment of the Rio goals of 25 flycatcher territories in both habitat, some willow flycatcher Grande, within the Middle Rio Grande the San Juan and Powell Management territories persist within urban areas Management Unit, that includes a 45.7- Units, the only Management Units and adjacent to human disturbance. km (28.4-mi) portion within Elephant within the Upper Colorado Recovery Therefore, the presence of the road, Butte Reservoir. Over time, as the lake Unit. gravel pit, and farm do not preclude the at Elephant Butte has declined, there Although these segments of the Paria Paria River from consideration as has been an increase of willows and River and the San Juan River were not critical habitat. other trees in the delta of Elephant Butte within the geographical area known to Comment (13): The Utah Governor’s Reservoir, and also an increase in be occupied by flycatchers at the time office also expressed concern about the flycatcher territories within the of listing, these areas may be able to potential economic impacts of reservoir pool and north of the reservoir sustain flycatcher habitat and territories designating critical habitat along the pool where the habitat is supported by and therefore are essential to flycatcher San Juan River in San Juan County, the low-flow conveyance channel. The conservation in order to help meet Utah (San Juan Management Unit). area within and north of Elephant Butte recovery goals in these Management Specifically, the entities state that Reservoir supports the largest known Units. These areas were identified as existing land use activities include river population of flycatchers in the range of having substantial recovery value in the rafting and camping, livestock grazing, the subspecies. In our proposed rule, we Recovery Plan and are anticipated to oil and gas exploration and production, also identified this location as an area provide flycatcher habitat for sand and gravel extraction, irrigated we were considering for exclusion metapopulation stability, gene farming, habitat management of under section 4(b)(2) of the Act due to connectivity through these portions of wildland fire fuels, and mining. In potential impact on water operations. the flycatcher’s range, protection against addition, private property values could After reviewing the best available catastrophic population loss, and be affected. scientific information, we have population growth and colonization Our Response: Potential economic determined that the benefits of potential. As a result, these river impacts associated with these activities including the Elephant Butte Reservoir segments and associated flycatcher are discussed in the draft economic as critical habitat outweigh the benefits habitats are anticipated to support the analysis. Specifically, recreation-related of excluding this area in the final strategy, rationale, and science of enterprises and agricultural activity designation, as discussed in the flycatcher conservation in order to meet undertaken by the Navajo Nation are following paragraphs. territory and habitat-related recovery discussed in paragraphs 353 through With regard to treaty obligations and goals. 355 of the draft economic analysis. national security considerations, USBR We agree that tamarisk occurs within Potential impacts to development provided information describing their these streams, but as described in the activities on the Navajo Reservation commitments for water delivery, proposed and this final rule, tamarisk (utilities, transportation, sewer including deliveries to Mexico. They (and Russian olive) provides suitable management, and residential assert that designation of critical habitat habitat for flycatchers in either development) are discussed in would impact their ability to meet these monotypic stands or mixed with native paragraph 432. Additional potential commitments and lead to national vegetation. While flycatcher habitat is transportation impacts are discussed in security issues. We have no information most commonly associated with paragraph 501. Finally, oil and gas which suggests that designation of perennial streams, flycatcher territories development in this management unit critical habitat in this area would do occur along intermittent streams that are discussed extensively in Chapter 8. preclude USBR from meeting their can go dry during the breeding season. Our evaluation found that all of these commitments under these treaties, nor Comment (12): We also received a activities will only result in baseline do we have any indication from the comment that the Paria River is costs (associated with the listing of the Department of Defense that designation

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in this area may present a national species), not the incremental impact of analysis is that critical habitat will not security concern. critical habitat designation. The require changes in water level USBR provided a conservation plan rationale for this conclusion is that, operations or loss of storage capacity. for the flycatcher during the comment because the area is currently occupied, The commenter states that this period for the proposed critical habitat consultation under the jeopardy assumption is illogical, incorrect, and designation. The plan includes standard is required with or without inconsistent with Office of Management provisions to monitor flycatcher critical habitat, and that project and Budget (OMB) guidelines for populations and their habitat, to modifications that may be required to Federal agencies conducting an maintain at least 100 territories, and to avoid adverse modification are not economic analysis of proposed proceed with future habitat creation and likely to differ practically from project regulations, which are required to apply restoration plans over the next 10 years. modifications that may be required to the ‘‘best assessment of the way the However, we are not aware that the avoid jeopardy. In total, the economic world would look absent the proposed provisions or measures in the plan have analysis found that $25,000 in action.’’ The commenter states that no been implemented and shown to be incremental impacts may occur at evidence or logic is evident in the report effective. We expect to consult under Elephant Butte Reservoir associated that supports the assumptions that the section 7 with USBR on the ongoing with the administrative costs of operating pool will not require changes operations of the reservoir and their completing consultations under the in water level operations or loss of management plan within two years to adverse modification standard. storage capacity. address any discretionary actions by Consequently, we determined that the Our Response: The commenter is USBR that may affect the flycatcher. The benefits of including this area from correct that the assumption in the results of this consultation and ongoing designation of critical habitat outweigh economic analysis that water operations management efforts could affect what is the benefits of excluding the area, and will not change as a result of critical considered critical habitat in this area in thus, this area is included in the final habitat designation for flycatcher is key any future critical habitat analysis. As a designation of critical habitat. to the analysis. However, the reasons for consequence, we may revise critical Although the Secretary chose not to this assumption are articulated in habitat in the future as our resources exercise his discretion to exclude the Chapter 3 of the economic analysis. The allow. Rio Grande within Elephant Butte reasons are repeated here. First, in areas With regard to water storage and Reservoir in its entirety under section where flycatcher presence is known, an elements of essential physical and 4(b)(2) of the Act, we did reevaluate the extensive consultation history exists biological features, USBR provided Rio Grande within the Middle Rio with regard to impacts of flycatcher on information documenting that habitats Grande Management Unit and found water management, with at least 35 and their primary constituent elements that the most downstream portions of formal consultations on water actions are temporary and dependent on the the river segment within Elephant Butte being conducted on flycatcher since level of the reservoir and, as such, these Reservoir in the Middle Rio Grande 1996. Several habitat conservation plans areas should not be considered essential Management Unit did not meet our (HCPs) already exist for flycatcher to the conservation of the species. The criteria for, and therefore, our definition related to water management issues, proposed critical habitat rule explains of, flycatcher critical habitat. We found some covering large river stretches, that the dynamic nature of riparian that the 31.4-km (19.5-mi) downstream including the Lower Colorado Multi- vegetation, dependent as it is on portion of the proposed segment within Species Conservation Program. On the hydrological conditions, is an important the active storage pool of Elephant Butte Middle Rio Grande, a long-term characteristic of flycatcher habitat. This Reservoir contains some of the elements biological opinion has been issued is also true of dynamic habitats along of physical or biological features of addressing flycatcher and the Rio reservoirs that vary in water elevation flycatcher habitat along the reservoir Grande silvery minnow, and a large stage. As a result, the shoreline areas of edge. However, in the Middle Rio Middle Rio Grande Endangered Species reservoirs can provide the essential Grande Management Unit, the habitat Collaborative Program exists. On the physical and biological features that features in this most downstream Kern, Salt, and Verde Rivers, HCPs have define flycatcher critical habitat. portion are not essential to flycatcher been developed related to operations of Therefore, it would not be appropriate conservation because the number of water management facilities. All of the to exclude the area from consideration flycatcher territories and amount of existing plans have included as critical habitat based solely on the habitat in the farther upstream portion conservation actions for the flycatcher, premise that some elements of the (about 180 km, 112 mi) of this segment and many have included habitat habitat may be temporary in nature. have already far exceeded the recovery mitigation, but none to date has Finally, USBR provided extensive goals for this management unit. As a required changes to water operations for information documenting the economic result, the most downstream portion of flycatcher such that downstream flow to value of the water deliveries they the Rio Grande in Elephant Butte water users have been affected. Due to facilitate including both the value of the Reservoir is not necessary for the the extensive history of management of water itself and the value of the water conservation of flycatcher, as the Unit flycatcher through incidental take in income to users. There is no without this portion meets the quantity permit development, the economic disputing the economic value of the of habitat and territories identified as analysis assumes that, in areas where water deliveries; however, there is no essential for this Management Unit flycatcher territories have been detected, information to suggest that designation (refer to our Criteria Used To Identify water managers will pursue an of critical habitat will disrupt those Critical Habitat section). Therefore, we incidental take permit or statement for water deliveries. Specifically on point, are not including this portion in the current operations as part of an HCP or the economic analysis investigated this designation for this Management Unit section 7 biological opinion. issue and determined that any impacts (see Summary of Changes from The 2005 economic analysis to water resources from Elephant Butte Proposed Rule). considered the potential for flycatcher Reservoir would be associated with Comment (15): The New Mexico conservation to result in changes to dam baseline costs (costs attributable to Interstate Stream Commission states that operations in order to avoid adverse listing the flycatcher as an endangered a key assumption of the economic effects on flycatcher habitat. However,

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management agencies have asserted in occupied by the species, or where the riparian habitat along the Middle Rio some cases that they lack legal species is otherwise currently managed Grande riparian corridor and the Upper discretion to release water for flycatcher for, are assumed to be limited to the Rio Grande Basin should be included in management purposes. For example, in additional, minor administrative costs the economic analysis. Defenders of Wildlife v. Norton, 257 F. of considering the potential for the Our Response: USBR estimates that Supp. 2d 53 (D.D.C. 2003), the Federal project to adversely modify critical recreation users spend, in aggregate, district court held that USBR lacked habitat. between 1 and 2 million user-days at discretion to provide water for species Comment (16): The New Mexico Elephant Butte each year and spend in the Colorado Delta because USBR Interstate Stream Commission states that approximately $26.28 per day in the was precluded from changing Colorado the costs incurred by water officials, region. The Agency states that if the River operations by the Colorado River including developing new State or local surface water elevation is lowered, compact. Other court cases addressing law, ordinances, or policy to protect fewer recreation user days will occur. section 7 consultation between USBR sensitive habitat within the storage pool We have not included this estimate in and the Service have upheld the use of at Elephant Butte Reservoir are not our economic analysis, because the off-site mitigation, as is often addressed in the economic analysis. Service does not anticipate that the contemplated in incidental take permits Our Response: The economic analysis surface water elevation of the reservoir for the flycatcher, and allowed USBR to includes estimated costs of efforts to will decrease as a result of the presence raise the level of the lake above existing manage flycatchers at Elephant Butte of the flycatcher or designated critical flycatcher habitat (see Southwest Center Reservoir of $10.1 to $84.7 million. To habitat (see paragraphs 99 and 176 v. U.S. Bureau of Reclamation, 143 F.3d calculate this, we use the reservoir’s through 178 of the draft economic 515, (9th Cir. 1998) and Southwest large storage capacity and the cost per analysis). Center for Biological Diversity v. U.S. acre-foot of management efforts, Comment (18): The New Mexico Bureau of Reclamation, 6 F. Supp. 2d developed as part of biological opinions Interstate Stream Commission inquired 1119 (D.Az. 1997)). Based on these and HCPs developed elsewhere, as a about the Rio Fernando within the findings, it appears unlikely that proxy. While the analysis does not Upper Rio Grande Management Unit flycatcher conservation efforts, attempt to parse out the costs by specific and sought clarification on stream regardless of critical habitat designation, use, the per-acre-foot cost was conditions and the importance of this will result in changes in dam operations developed from estimates that area for flycatcher recovery. Our Response: Flycatcher territories beyond those conservation activities incorporated program management were detected along the Rio Fernando in outlined in an incidental take permit. costs. In Chapter 3, the final economic 2008, and are still known to occur. Therefore, the analysis does not analysis now acknowledges that some costs may be associated with the Although this stream segment is estimate the potential magnitude of development of law, ordinances, or relatively short, there is sufficient impacts associated with changes in dam policies by managing agencies related to habitat to support several nesting pairs. operations, such as maintaining water flycatcher management. Because the Within the Upper Rio Grande levels at an elevation at or below population of flycatchers is very large at Management Unit, the recovery goal is flycatcher habitat areas, or the cost of Elephant Butte, and agencies are already 75 territories and the known single year replacing water supplies, either under aware and conducting consultations on high is 39 territories, detected in 2000. the baseline or incrementally due to the flycatcher both at the Reservoir and The Rio Grande, Rio Grande del Rancho, critical habitat designation. in areas downstream, and because the and Coyote Creek were identified within As noted in Chapter 2 of the draft Service does not anticipate that this Management Unit as having economic analysis, the Service states requirements to protect critical habitat substantial recovery value in the that in a scenario where a section 7 will differ from requirements to protect Recovery Plan (Service 2002, p. 92). consultation resulted in both a jeopardy the species in areas that are already These three segments, along with the and adverse modification finding under being managed for the species, costs are essential Rio Fernando segment, are each different standard, it is likely that attributed to the baseline, as they would anticipated to provide flycatcher habitat conservation measures by the Federal be anticipated to occur even absent for metapopulation stability, gene agency that might be required to avoid critical habitat for flycatcher. connectivity through this portion of the jeopardy would be similar to those Comment (17): The New Mexico flycatcher’s range, protection against required to avoid adverse modification. Interstate Stream Commission states that catastrophic population loss, and As noted in Chapters 2 and 3 of the draft Elephant Butte Reservoir is a known population growth and colonization economic analysis, the Service found no and highly valued recreational area that potential. As a result, these river instances where actual project attracts regional visitors seeking boating, segments and associated flycatcher modifications were previously required camping, fishing, and other recreational habitat are anticipated to support the to avoid destruction or adverse activities that are supported by well- strategy, rationale, and science of modification of critical habitat in a established marinas and commercial flycatcher conservation in order to meet review of the past consultation record businesses at the reservoir and nearby territory and habitat-related recovery for flycatcher both with and without towns. Designation of the proposed goals. critical habitat. As such, in areas where critical habitat will reduce the surface Comment (19): The New Mexico flycatcher territories have been detected water area available for boaters and Department of Agriculture suggested or flycatcher presence is known, this water content for fish species within the that the Service provide an analysis that analysis assumes that a future HCP or reservoir, imposing a direct and recognizes the agricultural industry in section 7 consultation will be developed negative economic impact on visitation the environmental assessment. or undertaken, but that resulting and revenues. The value of this lost Our Response: The impacts conservation efforts will not differ than recreation was provided in earlier envisioned in the comment letter related those that would have occurred absent public comment by USBR and should be to the availability of irrigation water. critical habitat. That is, quantified included in the economic analysis. While the economic analysis does not incremental impacts of future Furthermore, lost recreational revenue include a chapter specifically titled consultations in the areas either associated with the designation of ‘‘agriculture,’’ Chapter 3 discusses

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potential impacts on water management, expanded to include the entirety of the should consider the impacts of critical including irrigation diversions, in great creek from the headwaters downstream habitat designation on the proposed detail. We do not anticipate changes in because this is high-quality habitat National Recreation Area. the amount of water available as a result where flycatchers have been Our Response: The NPS’s study, of the listing or designation. Rather, the documented. including its recommendations, is water projects have historically obtained Our Response: The BLM provided us scheduled to be transmitted to Congress incidental take permits by completing new information during the comment this year. At this time, given the HCPs that generally involve acquiring period about a breeding flycatcher uncertainty associated with the various mitigation lands and various detected on Empire Gulch (a tributary to alternatives proposed in the study and management activities. Because changes the headwaters of Cienega Creek) and likely action taken by Congress, we are in flow are not anticipated, impacts to habitat quality for breeding and unable to estimate the potential effects downstream agricultural users are not migrating flycatchers along Cienega of the designated critical habitat on anticipated. Creek. We discussed these comments recreational opportunities arising from a Comment (20): The New Mexico with the BLM, incorporated their National Recreation Area. However, a Department of Agriculture disagrees recommendations into our proposal discussion of the study and possible with the statement in the draft within our July 12, 2012, amendments action by Congress has been added to environmental assessment that to the proposed rule (76 FR 41147, p. Chapter 10 of the final economic ‘‘potential impacts to the quality of the 41151), and subsequently have included analysis. environment are not likely to be highly two short segments of Empire Gulch and Comment (25): The Corps requested controversial’’ and, instead, suggests the a longer segment of Cienega Creek in we exclude the South Fork Kern River ‘‘potential impacts * * * may result in our final designation (see Critical (including upper Lake Isabella) and varying degrees of controversy.’’ Habitat Unit Descriptions, Gila Canebrake Creek, California, located Our Response: The environmental Recovery Unit section above). within the South Fork Kern River assessment acknowledges prior Comment (23): A commenter stated Wildlife Area, as well as Hafenfeld and controversy. The Service believes that, that under the recent consultation for Sprague Ranches, from the revised with the combination of exclusions and Nationwide Aerial Application of Fire critical habitat designation, because voluntary conservation measures in Retardant on USFS lands, retardant use current management of Lake Isabella place, the likely impacts of the proposed within flycatcher critical habitat on Reservoir benefits flycatcher habitat and designation would not be highly national forests would be avoided. The a designation could impact the controversial. The Service understands commenter stated that, although the management purpose of the reservoir for that, given the prior history of proposed critical habitat was not flood control and water supply. The designation, some level of controversy considered in that analysis, it too will commenter indicated that the Sprague may result. likely be avoided by the same size buffer and Hafenfeld properties are managed zones. However, the commenter under a conservation easement or Comments From Federal Agencies believes that newly designated critical management plan to benefit flycatchers. Comment (21): One commenter stated habitat identified in the final rule will The commenter also noted that Lake that they oppose the designation of need to be reviewed by the individual Isabella Reservoir is managed in critical habitat on military lands. national forests at that time to determine compliance with all terms and Our Response: Within this revision, if there would need to be any exceptions conditions of the Service’s 2000 we identified important streams for or modifications to the standard buffer biological opinion on long-term flycatcher habitat and recovery to zones. The commenter states that the operations of Lake Isabella Reservoir propose as critical habitat at national forests will consult as that addressed effects to the flycatcher Vandenberg Air Force Base within the appropriate at that time, and the new and its critical habitat designated at that Santa Ynez Management Unit and areas will then be included in fire time. Marine Corps Base Camp Pendleton and retardant avoidance maps prior to the Our Response: On the basis of the Naval Weapons Station Seal Beach upcoming fire season. conservation easement and management Detachment Fallbrook (Fallbrook Naval Our Response: We appreciate the plan in place with private partnerships, Weapons Station) within the San Diego commenter’s information and the Sprague Ranch and Hafenfeld Ranch Management Unit. After the willingness to incorporate this final have been excluded from this final identification of these lands, we critical habitat designation into designation (see Exclusions section evaluated the conservation and consideration of fire retardant use on above). management of these lands by these USFS lands. We look forward to However, the South Fork Kern military installations as provided in working with the USFS for future Wildlife Area is owned by the Corps their INRMPs. We described and discussion of fire retardant use and and managed by the USFS. In contrast evaluated the conservation measures for avoidance of its use on National Forest to the non-federally owned Sprague each of these installations in our System lands that might affect this Ranch and Hafenfeld Ranch, there is proposal and this final rule and revised critical habitat designation for additional benefit to including the concluded that each provides a benefit the flycatcher. federally owned portions of the South to the flycatcher and its habitat. As a Comment (24): One commenter noted Fork Kern River in the designation of result, we conclude that the areas we that the NPS is currently conducting a critical habitat because of the Federal identified as important for the flycatcher special resource study of the San agencies obligation to consult under habitat are exempt from critical habitat Gabriel River watershed and the San section 7 of the Act on activities that designation under section 4(a)(3) of the Gabriel Mountains regarding the may adversely modify critical habitat. Act (see Application of Section 4(a)(3) formation of the San Gabriel Region The Corps has consulted with the of the Act section above). National Recreation Area in California. Service in the past on dam operations, Comment (22): A Federal agency The purpose of such action would be to the potential effects to the flycatcher, suggested that the Cienega Creek increase recreational opportunities in and implemented reasonable and segment in southern Arizona within the the area, including riding, cycling, prudent measures described in those Santa Cruz Management Unit should be hiking and picnicking. The Service associated biological opinions.

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Conservation measures included off-site with Federal land managers identified Our Response: Section 10.3.11 of the land conservation efforts rather than allotments that are unlikely to face draft economic analysis provides a modifying reservoir operations. The future grazing restrictions or riparian detailed discussion of the costs Corps maintains an obligation to consult exclusions, due to either manmade (e.g., associated with reduced recreational under section 7 of the Act on their fencing, roads, or seasonal use) or opportunities in the Tonto National current operations, and those uncertain natural (e.g., steep canyons or Forest. We estimate lost direct future operations or activities that may unsuitable habitat) features. No impacts expenditures of approximately $400,000 adversely modify critical habitat. As a are anticipated in these areas. annually (2010 dollars) based on data result, the consultation requirement Comment (28): The USFS provided provided by the USFS on the number of provides some benefit to flycatcher detailed information on grazing fishing and hunting trips taken prior to conservation. We expect that ongoing allotment management and conservation the closures, the availability of conservation efforts in this area will strategies as relevant to the flycatcher substitute locations, and published continue with or without critical habitat economic analysis. estimates of average trip expenditures in designation, limiting the benefits of Our Response: The draft economic each county in Arizona. These costs are excluding the area. Consequently, after analysis identified allotments that were attributed to the listing of the species reviewing the best available unlikely to face future grazing (baseline), not the designation of critical information, we have determined that restrictions or riparian exclusions, due habitat (incremental), because USFS the benefits of including this area as to either manmade (e.g., fencing, roads, began implementing these seasonal critical habitat outweigh the benefits of or seasonal use) or natural (e.g., steep restrictions prior to the original excluding this area. canyons or unsuitable habitat) features, designation of critical habitat in these Furthermore, Canebrake Creek lies through communication with land areas. within a California Department of Fish managers at the USFS and the BLM. The Comment (31): The USFS states that and Game Ecological Reserve and is information provided in public camping along the shoreline of Lake well upstream and not within the comment by this entity is consistent Roosevelt, and fishing along the Salt jurisdiction of the Corps’ management with the information and assumptions River and the Tonto Creek confluence of Lake Isabella Reservoir. There is no used in the draft economic analysis. and Roosevelt Lake, could be affected by the designation. management plan specifically Comment (29): As holders of the addressing flycatcher habitat in this Our Response: As discussed above, grazing permit for the Dagger Allotment area, thus we have determined that the section 10.3.11 of the draft economic in the Tonto National Forest, Cherry benefits of including Canebrake Creek analysis provides a detailed discussion Creek Cattle Company commented that outweigh the benefits of excluding this of the costs associated with reduced there is no evidence to indicate that area. recreational opportunities on the Salt Comment (26): The USFS identified a grazing poses a threat to the species. River, Tonto Creek, or Lake Roosevelt. camping area at Luna Lake in the San They stated they have yet to be shown The USFS has been implementing Francisco Management Unit and a case in which cattle have negatively seasonal restrictions at Roosevelt Lake requested that it be excluded from the affected the bird’s welfare. Instead, there since 1998. Thus, the designation of designation due to the lack of primary are case studies that demonstrate that critical habitat is not expected to result constituent elements. the flycatcher actually benefits from the in additional, incremental impacts to Our Response: This recreation site presence of water improvements and recreational users. We have excluded had not previously been considered in insect populations that are a result of Roosevelt Lake from the final the draft economic analysis. We have grazing activity. An example is a study designation of flycatcher critical habitat added a discussion of the site and its of the U-Bar Ranch in the Gila River under section 4(b)(2) of the Act as a use to section 10.4 of the draft economic Valley, where the highest density of the result of the implementation of SRP’s analysis. In addition, this area was species occurred in an area with grazing Roosevelt Dam HCP and the supporting found not to be essential for present. management conducted by the USFS conservation of the flycatcher and has Our Response: The Recovery Plan (see Exclusions section below). been removed from the final designation (2002, pp. 35–36, 114–116) discusses Comment (32): The USFS identified (see Summary of Changes from the the issues, impacts, and evidence an area of the Los Padres National Proposed Rule section above). regarding the compatibility of grazing Forest located within the proposed Comment (27): Several individuals with flycatcher life history. The Service Santa Ynez Management Unit as heavily state that current management strategies believes that carefully managed and used for recreation. Specifically, it for grazing operations within the Tonto closely monitored, light-to-conservative writes that the area between Live Oak National Forest provide sufficient rest to levels of grazing within critical habitat picnic area and the Gibraltar Dam allow for conservation of riparian during the non-growing season may be experiences heavy recreational use for habitat. One comment also states that compatible with flycatcher recovery picnics and swimming, especially in the some areas within the middle Salt River (Service 2002, Appendix G). summer when several thousand visitors region are not suitable for grazing. Comment (30): Multiple individuals may enter this area in one day. In Our Response: The Service believes commented on the economic impact of addition, the three developed recreation that carefully managed and closely historical closures of recreational areas sites require annual maintenance such monitored, light-to-conservative levels along the Salt River and Tonto Creek by as fire hazard reduction and clearing of of grazing within critical habitat during the USFS for the protection of the the hardened crossings after high winter the non-growing season may be flycatcher. These areas were popular flows. The USFS is concerned that the compatible with flycatcher recovery locations that generated local spending designation of critical habitat could (Service 2002, Appendix G). Thus, and jobs related to the provision of fuel, curtail use or maintenance of these complete loss of grazing opportunities is lodging, food, and equipment. They popular sites. Finally, the agency notes not anticipated. Section 4.3 of the draft estimate annual lost expenditures by that there are no records of flycatchers economic analysis describes the recreational users of $47,123,599. No in the area. estimation of economic impacts information is provided regarding the Our Response: Future formal section associated with grazing. Communication derivation of this estimate. 7 consultation on the recreational

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activities taking place in this area is the flycatcher. Several groups, including representatives, including making unlikely. If the USFS requests technical the Santa Domingo Pueblo (Service presentations at tribal wildlife assistance or informal consultation, we 2008) and the Pueblo of San Felipe conferences in Arizona and New Mexico are unlikely to recommend (Service 2007b), have been funded to about the upcoming critical habitat modifications to these activities, remove nonnative plants and refurbish revision and our related policies. In because the stream segment in question habitats along the Rio Grande. These California, the Service attended is used for migratory purposes, rather projects provide proper water flow and meetings with all seven tribes that could than nesting. Furthermore, there may be bank stabilization for the silvery be affected by critical habitat. a benefit to continued recreation at the minnow while also creating native Following publication of our August site in terms of educating visitors about habitat structure for the flycatcher. 15, 2011, proposal (76 FR 50542), and the flycatcher and its habitat needs. If Comment (34): We received a throughout the process to revise critical technical assistance or informal suggestion to add the U.S. Department habitat, we continued communicating consultation occurs, the majority of the of Agriculture and NPS to the list of with tribes and pueblos verbally and in costs would be attributed to the baseline agencies likely to enter into section 7 writing. We contacted each tribe and scenario because the area is considered consultations with the Service under the pueblo formally in writing, and to be occupied by the species. In No Action Alternative in the draft informally via telephone and electronic addition, Federal agencies are aware of environmental assessment. mail; offered government-to-government the potential presence of the species Our Response: The USFS is the consultation at their request; and because the Santa Ynez River segment Federal bureau within the U.S. provided a copy of the proposal. In was previously designated as critical Department of Agriculture that would September 2011, we sent a letter to the habitat. We have added a discussion of be likely to consult with the Service, leader of each tribe and pueblo with an this site to chapter 10 of the final and this agency is already listed. We updated draft flycatcher management economic analysis. have added the NPS to this list and plan template, flycatcher literature, and Comment (33): USBR commented that noted other places in the environmental further guidance on how to develop and the ‘‘Fisheries’’ section of the assessment where actions by the NPS implement a flycatcher management environmental assessment should not could be considered in section 7 plan for our consideration for exclusion focus on just the Colorado River consultations for flycatcher critical under section 4(b)(2) of the Act. We fisheries, as several other river systems habitat. followed up this letter with electronic such as the Rio Grande have conflicting Comments Related to Tribal Lands messages and phone calls to tribes and uses between the fisheries and pueblos providing additional flycatcher. The discussion does not Comment (35): A variety of comments management plan guidance. We later represent the full issues associated with from tribes and others stated that they provided tribes and pueblos an update conflicts between existing fish such as oppose the designation of critical on our schedule for completion of the the Rio Grande silvery minnow habitat on tribal lands. We also received designation, opportunities for (Hybognathus amarus) and the some comments that we did not submitting management plans, an offer flycatcher. adequately coordinate with tribes based of technical assistance on management Our Response: Along the middle Rio on our government-to-government plans, and information about seeking Grande, revised flycatcher critical relationship. exclusion from the critical habitat habitat overlaps with critical habitat for Our Response: It is important for the designation. the Rio Grande silvery minnow, which Service to work and communicate with Following our July 12, 2012, notice of is only found in the section of the Rio tribes and pueblos potentially impacted availability for the draft economic Grande between Cochiti Dam and by the designation of critical habitat. We analysis and draft environmental Elephant Butte Reservoir (68 FR 8088, support and recognize tribal sovereign assessment (77 FR 41147), we again sent February 19, 2003). Both the flycatcher authority and each tribe’s inherent a letter to the leader of each tribe and and silvery minnow have experienced power to manage and control their pueblo, dated July 30, 2012, to notify loss of habitat from stream natural resources. In accordance with them of the opportunity to comment on modifications along the river system Secretarial Order 3206 and the Service’s the process, offer government-to that include agriculture development, Native American Policy, we consult government consultation, and inform water diversion, impoundments, and with tribes when actions taken under them of the dates and locations of the livestock grazing (68 FR 8088, February the Act may affect tribal lands, tribal public hearing and open house meeting. 19, 2003, pp. 8088–8089, 8127). Because trust resources, or the exercise of Representatives from local Service field of potential conflicting interests American Indian tribal rights as defined offices in Arizona, California, Colorado, between current and future water users in the Secretarial Order. and New Mexico contacted tribes and and protected species, a collaborative Prior to our publication of the pueblos in person, during meetings, and group called the Middle Rio Grande proposed revision of flycatcher critical through electronic mail and telephone Endangered Species Collaborative habitat, the Service’s Regional Directors calls to inform them about the proposed Program was developed. This group sent letters to the leader of each tribe rule and offered help with development consists of local, regional, tribal, and and pueblo that could be affected by the of flycatcher management plans. Federal organizations whose goals are to rule, provided information about our Representatives from the BIA also alleviate jeopardy for the protected intention to propose revised flycatcher coordinated with the Service to provide species while still providing for current critical habitat, and offered the their guidance and assistance. In many and future water users (Middle Rio opportunity to initiate government-to- cases, the Service assisted tribes in the Grande Endangered Species government consultations regarding the development of flycatcher management Collaborative Program 2010). process. We also explained our plans. USBR has overseen several restoration exclusion policies under section 4(b)(2) In November 2011, we met with a projects, funded by the Middle Rio of the Act and provided other relevant representative from the San Ildefonso Grande Endangered Species information to assist tribes and pueblos Pueblo in New Mexico at their request. Collaborative Program, to enhance in cooperating in this process. We also We also met with and had habitat for both the silvery minnow and communicated informally with tribal teleconferences with representatives

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from the GRIC of Arizona in October Capitan Grande Band of Mission Indians Canyon Landfill, just west of the Pala 2012. We had additional meetings with of the Barona Reservation, California, Reservation, because the construction all of the tribes in California. While and the Viejas (Baron Long) Group of and operation of a landfill at this preparing to publish the proposed rule, Capitan Grande Band of Mission Indians location would segregate the San Luis we made presentations to tribal wildlife of the Viejas Reservation, California, in Rey population of flycatcher into east conferences, attended by tribal staff in the proposed rule for the flycatcher. We and west subpopulations and that the New Mexico and Arizona about the have revised the boundaries of this effect on gene flow caused by such development of the upcoming critical segment to appropriately reflect the area segregation should be included in the habitat proposal and our exclusion of tribal lands considered for critical analysis of the designation in this area. process. habitat to an approximately 0.9 km (0.6 The Tribe believes it is highly likely that Overall, we provided detailed mi) stream segment of the San Diego the mountain stream in Gregory Canyon correspondence and coordination, and River (upper) and consisting of provides habitat that the flycatcher communicated with the 19 tribes and approximately 9.0 ha (22 ac) of the would use as an adjunct to the primary pueblos where we proposed critical Capitan Grande Reservation. See riparian corridor, extending its use by habitat. We also provided more general Summary of Changes from the Proposed the species up the canyon, and that this correspondence to other nearby tribes Rule above for further discussion. location should be designated critical not included in the proposed Comment (38): The Viejas (Baron habitat for the flycatcher. designation and coordinated with them Long) Group of Capitan Grande Band of Our Response: We agree that Gregory at their request. We subsequently Mission Indians of the Viejas Canyon provides riparian habitat that excluded, under section (4)(b)(2) of the Reservation, California, expressed the flycatcher may use. However, Act, all of the 19 tribes and pueblos that concern that the Service and the BIA Gregory Canyon was not identified as were included within the proposed did not make a greater effort to comply necessary for recovery in the Recovery designation (see Exclusions section). We with directives obligating Federal Plan, and we do not believe the area is intend to keep working to improve our agencies to consult with tribes when essential to the conservation of the relationships with tribes and the BIA taking actions that impact tribes, species; therefore, we did not propose following the tenets of Secretarial Order particularly those involving tribal lands the area as critical habitat. In developing 3206 and Executive Order 13175. and the management of biological the critical habitat determination, the Comment (36): The Southern Ute resources. The Tribe cited Secretarial Service used the Recovery Plan, as well Indian Tribe, Fort Mojave Indian Tribe, Order 3206 and Executive Order 13175, as information from peer-reviewed Pueblo de San Ildefonso, Yavapai- Consultation and Coordination with journals, conservation plans developed Apache Nation, Hualapai Department of Indian Tribal Governments (Nov. 9, by States and counties, scientific status Natural Resources, Navajo Nation, 2000), as outlining the Service’s surveys and studies, biological Pueblo of Zuni, and the San Carlos responsibility to communicate with assessments, and other unpublished Apache Tribe each submitted to the Tribes regarding actions that may affect materials and expert opinion or Service a copy of their respective tribal lands as far in advance as personal knowledge. management plans for the flycatcher. practicable. According to the Tribe, the Comment (40): The Ramona Band of Many included amendments or Service’s track record on the proposed Cahuilla, California, indicated that they revisions to ensure adequate designation fails to meet these have developed a draft conservation conservation for the flycatcher and its obligations, and, had such notification measure regarding the species that will habitat. and consultation occurred, the Service serve as the appropriate resource Our Response: We appreciate these would have obtained sufficient management plan for the Ramona efforts, and appropriate sections of this information to exclude the tribe from Indian Reservation and other tribal rule and economic analysis have been the proposed designation. The Tribe lands. The Ramona Band of Cahuilla revised to reflect conservation efforts requested full consultation going stated that it invites the Service to work reflected in the respective plans. forward, expressed appreciation of the with the Tribe to devise and adopt its Comment (37): The Barona Group of Service’s recent efforts in this regard, plan. Capitan Grande Band of Mission Indians and anticipates that intergovernmental Our Response: We appreciate the of the Barona Reservation, California, discussions will continue. Tribe’s invitation and look forward to stated that our description of the portion Our Response: The Service makes working cooperatively with the Ramona of the ‘‘San Diego River (upper)’’ area every effort to coordinate with tribes Band of Cahuilla, California, in the being considered for exclusion from this well in advance of taking any action development and adoption of their critical habitat designation was which may affect tribes or tribal lands. management plan for the flycatcher. confusing. The Tribe noted that the area The Service met with both tribes on Comment (45): The Barona Band of being considered for exclusion is June 16, 2011, prior to publication of the Mission Indians comments that the draft described as 4.7 km (2.9 mi) and 82.4 ha proposed rule; have kept in contact with economic analysis does not explain why (203.7 ac) in the supplementary table the tribes via email concerning the uniquely tribal values described in the (on page 2 of 5), under the heading possible development of management report are not monetized, and, therefore, ‘‘Areas Considered for Exclusion,’’ but plans for the flycatcher; and have met the report provides an incomplete the area, as shown on the proposed with the tribes at quarterly meetings. We assessment of costs and renders the map, is nearly identical to that of 37 ha appreciate the feedback provided by the economic analysis legally inadequate. (92 ac) excluded from critical habitat for Viejas (Baron Long) Group of Capitan Our Response: The draft economic the arroyo toad (Anaxyrus californicus). Grande Band of Mission Indians of the analysis is unable to monetize impacts Our Response: The Service Viejas Reservation, California, and will for which economic data are not readily inadvertently included in these continue to foster effective available in published academic calculations lands not within the communications with tribes. literature or from other sources. boundary of the Capitan Grande Band of Comment (39): The Pala Band of Furthermore, new primary research, Diegueno Mission Indians Reservation Luisen˜ o Mission Indians of the Pala such as complex surveys eliciting values (Capitan Grande Reservation), which is Reservation, California, expressed for the unique amenities provided to jointly managed by the Barona Group of concern regarding the proposed Gregory tribes by reservation lands, is beyond

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the scope of this analysis. The uniquely BCA [benefit-cost analysis]. If some of critical habitat. This exhibit indicates tribal values described in the draft the primary benefit categories cannot be which benefits may occur in each economic analysis are difficult to define expressed in monetary units, you management unit, in order for the in scope and scale, and necessary should also conduct a Cost-Effectiveness Service to compare to costs when economic data are not readily available. Analysis (CEA). In unusual cases where determining exclusions. It also indicates To address the Barona Band of Mission no quantified information on benefits, whether such benefits are likely to occur Indians’ concern that such values will costs and effectiveness can be produced, in the baseline, or result incrementally not be considered in the rulemaking the regulatory analysis should present a from the designation of critical habitat. process, however, we include a note qualitative discussion of the issues and Comment (48): The GRIC and another regarding these ‘‘uniquely tribal values’’ evidence.’’ Both benefit-cost analysis commenter state that the economic into exhibit 6–1 of the draft economic and cost-effectiveness analysis require analysis fails to assess potential impacts analysis, so that unquantified values can measurement of the effectiveness of the to the GRIC from potential changes to be considered in combination with regulation in quantitative terms. Benefit- downstream water availability from the quantified administrative costs. cost analysis simply takes the next step San Carlos Reservoir. Comment (46): Maps show that of monetizing the value to the public of Our Response: As stated in Chapter 3 flycatchers are present on GRIC lands in the improvements. of the economic analysis, water users Arizona; however, there are no critical The primary purpose of this critical that receive deliveries from the San habitat designations on lands managed habitat designation is to support the Carlos Reservoir could be affected by by the GRIC. The GRIC Tribal Historic long-term conservation of the flycatcher. critical habitat designation if reservoir Preservation Office supports designation As described in section 11.1 of the draft operations are modified such that less of lands as critical habitat for the economic analysis, quantification and water is available for irrigation or other flycatcher. monetization of this conservation community uses. Reductions in Our Response: While we believe it is benefit require information on the available water to the GRIC could result reasonable to anticipate that migrating incremental change in the probability of in reductions in irrigated crop acres for or dispersing flycatchers occur along the conservation resulting from the end users, if farmers are unable to section of the lower Gila River where designation. Such information is not switch to less water-intensive crops or the GRIC occurs, we are not currently available, and as a result, quantification find substitute water sources. If less aware of flycatcher territories on these of the primary benefit of critical habitat water is available for community use, lands. We have not proposed critical designation is not possible. The Service restrictions on municipal or domestic habitat on GRIC lands. At the Tribe’s does not believe that conducting use could result. However, as stated in request, we are available to provide our additional research on the benefits of Chapter 3, due to the extensive technical assistance about flycatchers, flycatcher conservation is within the consultation history on the flycatcher flycatcher habitat, management, and scope of this economic analysis. allowing for habitat mitigation in lieu of surveys. Section 11.1.3 of the draft economic changing water operations, and a Comment (47): The GRIC indicates analysis discusses potential ancillary previous Service suggestion than an that the economic analysis fails to benefits. Although economic literature HCP or section 7 consultation be properly assess direct and ancillary does exist that monetizes similar developed related to San Carlos benefits of the rulemaking. Specifically, benefits, these studies are necessarily Reservoir operations, the analysis finds the Community raises the following site-specific. For example, using that future modifications to the concerns: (1) Regarding direct benefits, benefits transfer techniques to estimate operations of the San Carlos Reservoir to the draft economic analysis fails to changes in residential property value avoid adverse modification of critical conduct an adequate assessment of based on the existing economic habitat for flycatcher are unlikely. these benefits. Even in the case where literature would require knowledge of Instead, the analysis assumes than an benefits are not quantifiable, options the characteristics of the specific lands HCP or section 7 consultation and such as conducting a threshold analysis preserved as a result of the designation incidental take permit will be developed or doing additional research, outlined in of critical habitat, including proximity that allow for habitat mitigation. To Circular A–4, were not properly to residential properties and the amount approximate the cost of developing an considered. As a result, the draft of existing open space in the area. HCP, the analysis applies that range of economic analysis does not indicate that Without knowing where lands will be incidental take permit costs, which also any direct or indirect benefit results preserved (e.g., through mitigation fees) incorporate the acquisition of mitigation from the proposed designation. (2) as a result of this designation, it is lands. Applying this estimate, total costs Regarding ancillary benefits, the draft impossible to estimate such benefits. for Coolidge Dam are approximately economic analysis provides no Similarly, quantifying benefits $4.25 to $35.7 million. Because changes monetary, or non-monetary associated with improved water quality in dam operations are not anticipated, quantification for the listed ancillary would require information regarding impacts of critical habitat designation to benefits, and no discussion of their baseline water quality, hydrologic and water deliveries to the GRIC or SCIDD relative importance. In addition, many chemical modeling to estimate changes related to the San Carlos Reservoir are of the ancillary benefits are not a result in water quality, and risk analysis to not expected. of the designation, are overstated or determine avoided human health risk Comment (49): The San Carlos duplicative. based on changes to water quality. Apache Tribe expresses concern that the The Santa Clara Pueblo also disagree These types of analyses are beyond the draft economic analysis did not evaluate with the inclusion of certain categories scope of the draft economic analysis. As its assumptions using sensitivity of benefits as ancillary to the proposed a result, ancillary benefits associated analysis. Furthermore, this comment critical habitat because these benefits with the designation of critical habitat states that aggregating impacts occurring are already realized absent the are discussed qualitatively. Specifically, on both tribal and non-tribal lands designation. section 11.3 and exhibit 11–1 in the results in the marginalization of Our Response: The OMB Circular A– draft economic analysis provide a list disproportionate impacts to tribes. 4 (p. 10) states, ‘‘For all * * * major and discussion of the potential ancillary Our Response: As shown in exhibit rulemakings, you should carry out a benefits associated with the proposed ES–4 and exhibit ES–5 of the draft

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economic analysis, the analysis presents with Circular A–4 standards for the Our Response: Although Isleta Pueblo a range of possible impacts, resulting appropriate definition of the lands have contained several nesting from variation in key assumptions, in ‘‘foreseeable future’’ for this analysis. pairs of flycatchers and each territory is high and low impact scenarios. For water projects where an important, we believe there is sufficient Although the draft economic analysis incidental take permit has been issued, habitat and territories within the Middle does aggregate estimates of impacts we forecast costs over the remaining Rio Grande Management Unit to meet occurring on both tribal and non-tribal period of the permit, because future and exceed recovery goals farther lands, paragraph 322 and section 6.1 of management of the resource is relatively downstream. We have not included any the draft economic analysis explain that, certain. For all other water projects, we lands within the Isleta Pueblo in the due to the unique characteristics of forecast costs over a 30-year period. proposal and clarified the language in tribal economies, economic impacts to Given the nature of these projects, the final rule regarding the northern tribes are evaluated differently from where multiple stakeholders and boundary of this critical habitat impacts on non-tribal lands. government entities often negotiate over segment. Furthermore, quantified baseline and decisions regarding how to manage and It is important to note, however, that incremental costs that could be incurred allocate resources, changes in the absent any critical habitat, the flycatcher by the tribes in the future are separately foreseeable use of the water tend to will still receive protection in the future presented in exhibit 6–1 of the draft occur less frequently than changes in due to its status as a listed species under economic analysis. other types of economic activity. In the Act. Thus, any costs that will occur Comment (50): The GRIC states that contrast, other activities, such as future due to the listing of the species, the proposed rule indicates on its maps, transportation projects, may be more regardless of whether critical habitat is as does the economic analysis, that difficult to forecast beyond 20 years. designated, are attributed to the critical habitat is being proposed on In the case of the San Carlos Irrigation baseline. Appendix C and paragraphs 66 Community lands, but this area is Project, which delivers water to the through 73 of the draft economic neither addressed in the proposed rule, GRIC, it is unlikely that flows to the analysis provide the process used by the nor is it assessed in the economic Community will be affected by the Service and applied in the economic analysis. The Community provides presence of the flycatcher. The Service analysis to distinguish actions that will information regarding the related has previously suggested that if water occur as a result of the species’ listing. Comment (54): The Santa Clara economic impacts they will realize if transfers result in a loss of downstream Pueblo states that the list of economic this portion of the Salt River is flycatcher habitat, additional habitat activities that the draft economic designated, including potential impacts could be acquired on the San Pedro analysis includes as potentially to its ability to grow riparian mesquite, River as part of an HCP (see paragraphs a culturally and economically occurring on the reservation is 170 through 173 of the draft economic significant crop. incomplete. The Pueblo believes that a analysis). We include the potential costs Our Response: The Service is not higher level of economic activity is designating critical habitat for the of such efforts in paragraph 173 of the likely to occur in the area. The Pueblo flycatcher on any portion of the draft economic analysis. foresees the possibility of activities such Community’s land. Any apparent Comment (52): The GRIC stated that, as, but not limited to, groundwater inclusion of Community land on maps in the environmental assessment, the pumping, livestock grazing, agriculture, in the proposed rule or draft economic Service failed to provide any flood control, recreation development, analysis was unintentional. meaningful analysis of how the and future additions or renovations to Comment (51): The GRIC indicates proposed rule will impact water their existing hotel and casino. The that the time period of the analysis is delivery obligations under the San Pueblo is particularly concerned that both inconsistent and too short. The Carlos Project Act, which requires that the Service properly considers potential period of analysis is inconsistent in that the Reservoir ‘‘provid[e] water for the impacts to groundwater pumping, even the baseline uses an analytical period of irrigation of lands allotted to the Pima if monetization of impacts is not 50 years, whereas the incremental Indians on the Gila River Reservation.’’ possible at this time. As a result, the analysis uses varying periods. Further, Our Response: With the measures estimate of four formal consultations per this time period is too short in that the described in the ‘‘Water Resources’’ and year is an underestimate of the likely period of analysis for the San Carlos ‘‘Tribal Resource’’ sections of the level of consultation activity that the Reservoir should be indefinite since the environmental assessment, it is unlikely Pueblo will undergo. GRIC intends to use the reservoir, and that the Service would conclude an Our Response: Section 6.4.16 of the the San Carlos Irrigation District has adverse modification determination to draft economic analysis has been contracts, in perpetuity. However, if it is flycatcher critical habitat from San updated to reflect a higher level of impractical to use an indefinite period, Carlos Irrigation District operations. consultation activity on affected the analysis should note that in reality Therefore, it is not anticipated that the portions of the Santa Clara Pueblo, and the Community could realize impacts Service would require the BIA, through to highlight the Pueblo’s concerns resulting from a change to reservoir section 7 consultation, to change current regarding potential impacts to management in perpetuity. San Carlos Irrigation District operations. groundwater. The number of Our Response: In response to the Comment (53): Some commenters are consultations has been increased to 10, Community’s concern that the period of concerned about the clarity of the or approximately one every other year analysis is too short and too variable, we description of the northern boundary of for the 20-year period of the analysis, to refer the commenter to section 2.3.5 the Middle Rio Grande river segment in account for additional expected (paragraph 87) of the economic analysis. New Mexico near the Bernalillo County activities on proposed reservation land. In general, the analysis makes the best line and the Isleta Pueblo. Additionally, Comment (55): Two tribes express use of available data and information, commenters sought clarity on the concern regarding the definition of which in some cases dictates the time distribution of flycatcher territories in baseline conditions and costs in the period of the analysis (for example, in this area and how critical habitat may draft economic analysis. One entity the analysis of water impacts). The draft apply to lands between the Isleta states the baseline should include economic analysis, however, complies Pueblo-Bernalillo County lines. existing flycatcher critical habitat in

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order to properly reflect the current economic impacts have occurred as a whether an agency’s action is likely to conditions. Another suggests that it is result of the presence of the flycatcher. result in the destruction or adverse incorrect to assume that the presence of Past economic impacts related to modification of habitat which is the species was the impetus for flycatcher conservation have included determined by the Service to be critical conservation actions already costs of administrative efforts, surveying to the conservation of the species (16 undertaken, and that conservation and monitoring, and cowbird trapping. U.S.C. 1536(a)(2)). We agree with the efforts should therefore not be These costs are expected to continue in commenter that to perform this analysis, considered baseline costs. the future with or without critical we consider how the proposed action is Our Response: According to OMB’s habitat. Some additional consultation likely to affect the function of the Circular A–4, the baseline should be the could occur if critical habitat were critical habitat in serving the intended best assessment of the way the world designated. However, given our ongoing conservation role. will look (in the future) absent the relationship with the San Carlos Apache Comment (59): Some commented that proposed rule. The revised designation Tribe and the information provided in the Service did not adequately notify will replace the existing critical habitat their Management Plan, we have landowners where proposed critical regulation. Thus, the Secretary has the determined that the benefits of habitat was located. discretion to exclude from the final rule excluding lands on the San Carlos Our Response: Due to the large scope areas that were designated in 2005. In Apache Reservation outweigh the of the proposed designation, it was not other words, absent an explicit decision benefits of inclusion. possible to contact each individual from the Secretary to designate an area Comment (57): The Santa Clara landowner within the proposed as part of the final rule, in the future, Pueblo indicates that the draft economic designation. We believe we contacted critical habitat protections will no analysis improperly states that the the appropriate Federal, State, and local longer apply. Thus, comparison of a Service contacted each tribe to solicit agencies; tribes; scientific organizations; world with the designation as proposed information on the likely impacts of the elected officials; and other interested in 2011 to a world without critical designation. Santa Clara Pueblo parties including other landowners, as habitat (the baseline scenario) is maintains that informal contact from best we could, and invited them to appropriate for the purposes of the contractor staff to the tribes does not comment on the proposed rule. We sent economic analysis. respect the government-to-government out over 1,100 pieces of mail for each Comment (56): Activities occurring on relationship the Service should published notice in the Federal tribal lands, unlike activities occurring maintain with tribal entities. Register. We contacted these groups by in other geographic areas where critical Our Response: The Service has letter and electronic mail at the time of habitat may be designated, almost maintained contact with the Santa Clara publication of the proposed rule (76 FR always have a Federal nexus for section Pueblo and other tribal governments 50542, August 15, 2011); and again 7 consultation. As a result, the San through letters, phone calls, and emails, when we reopened the comment period Carlos Apache Tribe is likely to and has provided the Tribe with notice to announce the availability of the draft experience significant economic of publication dates of various economic analysis and draft impacts. documents. We provided numerous environmental assessment, and to notify Our Response: Paragraph 325 in opportunities to engage in government- the public of the location of a public section 6 of the draft economic analysis to-government discussions regarding hearing (77 FR 41147, July 12, 2012). explains that because all tribal lands our proposal, and we continue our We held a public hearing at the request overlapping proposed critical habitat are openness to do so. We appreciate the of Gila County, in San Carlos, Arizona, located within areas occupied by the comment and are fully responsible for on August 16, 2012. In order to inform flycatcher, which would include strengthening government-to- the general public, notices were flycatcher territories, and migrating and government relationships with tribes. published in the Federal Register and dispersing flycatchers. As a result, local newspapers, and we widely Other Comments Related to the Act and where the species occupancy is well distributed news releases and posted known, the Service considers all costs Implementing Regulations and Policy them on the Internet. A web page of associated with conservation measures Comment (58): Since the definition of flycatcher critical habitat materials was to be baseline (see chapter 2 of the ‘‘destruction or adverse modification of maintained at Arizona Ecological economic analysis). This would pertain critical habitat’’ has been invalidated, Services Web site http://www.fws.gov/ to activities on tribal lands with a the Service must revise the definition to southwest/es/arizona. Additional Federal nexus. As a result, we assume focus on whether, with the flycatcher critical habitat materials, that future incremental impacts on tribal implementation of an agency’s proposed including public comments, are lands will be limited to the additional action (taking into consideration habitat available at http://www.regulations.gov. administrative effort of addressing management, conservation or other Comment (60): Several commenters critical habitat in section 7 consultation. offsetting measures), the critical habitat expressed the willingness of a variety of Specifically, the draft economic remaining would continue to serve its water agencies (Bear Valley Mutual analysis (paragraphs 444 and following intended conservation role for the Water Company, City of Redlands, City in section 6.4.15) discusses this concern species. of Riverside, City of San Bernardino using text from a comment submitted Our Response: The Service is working Municipal Water Department, East previously by the San Carlos Apache to update the regulatory definition of Valley Water District, San Bernardino Tribe. The full extent of flycatcher adverse modification since it was Valley Municipal Water District, San occupancy on San Carlos Indian invalidated by several Courts of Appeal, Bernardino Valley Water Conservation Reservation is unknown due to the including the Ninth Circuit and the District, Western Municipal Water proprietary nature of tribal survey Fifth Circuit. At this time (without District, West Valley Water District, and information. However, the information updated regulatory language), we are Yucaipa Valley Water District) to work contained in the management plan, as analyzing whether destruction or with the Service to provide for well as the section 7 consultation adverse modification would occur based flycatcher conservation. history, does not indicate that on the statutory language of the Act Our Response: The Service significant management requirements or itself, which requires us to consider appreciates the agencies’ willingness to

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work with the Service to conserve the thorough consideration of the facts. The naturally irregular, patchy, and flycatcher and its habitat. We believe Recognize and disclose that the dynamic distribution of flycatcher partnerships with other agencies are redesignation of critical habitat will habitat within riparian corridors, vital to providing conservation of our cause the otherwise unnecessary combined with the habitat-related and shared natural resources, and look expenditure of funds by local territory recovery goals and important forward to working with the agencies in governments and private citizens. migration habitat likely accounts for a pursuit of this goal. Our Response: The designation or larger area than what is perceived to be Comment (61): There is no reference revision of critical habitat does not needed in order to accomplish the in the proposed rule to the requirement impose a legally binding duty on non- territory component of the Recovery set forth in the Federal Land and Policy Federal Government entities or private Plan’s targets. In other words, because of Management Act for values parties. The Service completed an the dynamic aspects of flycatcher management. The Service must adhere economic analysis and made its findings habitat due to flooding, changing river to the requirements as set forth in that available for public comment. locations, and land uses, we are unable legislation including mitigation efforts Consequently, we do not believe that to specifically target patches of habitat for all the promised values. this rule will significantly or uniquely within riparian corridors. Instead, we Our Response: The Federal Land and affect small governments for reasons identified the boundaries (riparian area) Policy Management Act of 1976, as explained in the sections of this rule where this habitat is expected to occur amended (43 U.S.C. 1701), established entitled Regulatory Flexibility Act (5 over time. the BLM’s multiple-use mandate to U.S.C. 601 et seq.) and Unfunded Additionally, a comparison of the serve present and future generations. Mandates Reform Act (2 U.S.C. 1501 et 2011 proposal to the 2005 final Section 102(a)(8) states that public lands seq.). designation is inappropriate because our must ‘‘be managed in a manner that will 2011 proposal does not incorporate any Other Comments Related to Biology, protect the quality of scientific, scenic, section 4(b)(2) exclusions from the final Methodology, and Critical Habitat historical, ecological, environmental, air designation. In the 2011 proposed rule Designation and atmospheric, water resource, and and 2012 notice of availability, we archeological values.’’ In section 103(e), Comment (64): Several commented identified 1,451.5 km (901.9 mi) stream ‘‘public lands’’ is defined generally as that the critical habitat in the proposed miles that we considered for exclusion land administered by the BLM. There rule is excessive, capable of supporting from the final designation (76 FR 50542, are no provisions in the Federal Land some 100,000 flycatcher territories, in August 15, 2011; 77 FR 41147, July 12, and Policy Management Act that are contrast to the current number of 2012). The exclusions we are making in applicable to the Service in general or territories (approximately 1,300) and the this final rule are discussed in the the designation of critical habitat Recovery Plan goal of 1,950 territories. Exclusions section. specifically. Similar comments were received that Comment (65): Some commenters Comment (62): The implementing generally pointed out that the amount questioned the scientific evidence used agreements for both the Orange County and location of areas identified in the by the Service. Southern Subregion HCP and the critical habitat proposal were Our Response: In designating Western Riverside County MSHCP state significantly larger than our 2005 flycatcher critical habitat, we believe we that, to the extent consistent with other designation, and there was no have used the best available scientific agency priorities, staffing, and funding discussion or analysis of the difference. and commercial information, including constraints, the Service intends to Our Response: Our specific results of numerous surveys, peer- reassess and revise the boundaries of methodology used to identify areas reviewed literature, unpublished reports existing designated critical habitat and proposed as flycatcher critical habitat by scientists and biological consultants, any proposed critical habitat of covered was described in the proposed rule (76 habitat suitability models, a species designated within the HCP FR 50542, August 15, 2011, pp. 50552– stakeholder-driven Recovery Plan, and boundaries. 50558). This approach duplicated much expert opinion from biologists with Our Response: The implementing of what was identified and designated extensive experience studying the agreements indicate that the Service in 2005, with additional proposed areas flycatcher and its habitat. We believe intends to reassess and revise the primarily targeting locations needed in the peer reviewer support for our use of boundaries of existing designated order to reach specific territory and the best available science to develop critical habitat and any proposed critical habitat-related recovery goals for each this critical habitat designation confirms habitat of covered species within HCP management unit. our approach. boundaries. However, due to current The science provided in the Recovery Comment (66): One commenter funding and priority limitations, the Plan (Service 2002, entire) and our expressed concern that the quality of the Service cannot reassess or revise all knowledge of the distribution and maps was poor and, therefore, made it critical habitat designations for multiple abundance of territories, use of river difficult for the public to adequately species concurrently. In revising this corridors for migration, year-to-year comment on the proposed revisions. current designation of critical habitat for movements, habitat use within Map quality makes it difficult to the flycatcher, the Service is responding territories, and Recovery Plan goals proceed with land and water to litigation and the subsequent helped guide our approach and management projects such as fuel settlement agreement in which we provided support for the segments reduction or fire management. agreed that the Service would revise proposed and designated as critical Similarly, some commenters critical habitat for the flycatcher. habitat. In some locations, especially recommended more detailed maps to Comment (63): The Service has found Management Units where there is determine where the primary that the redesignation does not create a limited information on flycatcher constituent elements of critical habitat Federal mandate as defined under the distribution and abundance, we sought may be absent at locations such as road, Unfunded Mandates Reform Act (2 additional information through the campgrounds, bridges, or where the U.S.C. 1501 et seq.). However, the designation process and used our best bird’s status is uncertain. Service needs to complete a financial professional judgment to identify and Our Response: In the proposed rule plan in an honest manner and with a designate river segments. (76 FR 50542; August 15, 2011), we

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described where people can view small areas along long stretches of for the flycatcher, the Service failed to enhanced color maps and retrieve site- stream can be occasionally used by recognize private land ownership in specific boundaries of the critical migrant flycatchers from year to year. California, specifically as it relates to habitat proposal in GIS format. These North and south-bound migrating areas downstream of Morris Dam on the color maps and electronic GIS flycatchers are frequently found San Gabriel River and adjacent to the information files could be viewed or occupying stopover areas along streams Big Tujunga Wash Mitigation Area, in retrieved by visiting http://www. upstream of, downstream of, and Los Angeles County. regulations.gov or http://www.fws.gov/ between known breeding sites. Our Response: The Service southwest/es/arizona. The maps within Therefore, for this wide-ranging bird, inadvertently excluded data for private the proposed rule identified every river it is difficult to precisely determine landownership in California in the segment and provided the UTM location known occupied areas due to the proposed rule. We have made the and landmarks for each endpoint; following considerations: (1) The appropriate changes in this final rule County, State, and Management Unit flycatcher’s neotropical migratory habits (see TABLE 2). boundaries; and other important of occupying stopover areas along Comment (70): One commenter wrote common landmarks (e.g., towns, streams upstream of, downstream of, that the southwestern willow flycatcher highways, lakes). Color maps posted and between breeding sites; and (2) the is not recognized as a valid subspecies online at the Arizona Ecological season-to-season variation in habitat by the American Ornithologists’ Union Services Office Web site included all the quality and subsequent lack of specific (AOU), and differences in same information as those found in the nest-site fidelity. As a result, for the morphological measures between proposed rule, with additional color- purpose of this critical habitat flycatcher species and subspecies are coded information on land ownership designation, we believe it is most flawed. and areas considered for exclusion conservative and reasonable to conclude Our Response: We are not familiar under section 4(b)(2) of the Act. The that any segment along a stream where with any issue within the AOU, or the boundary for our lateral extent of flycatcher territories were detected from scientific community in general, over 1991 to 1994 also be considered critical habitat was also provided within the recognition of the southwestern occupied at the time of listing. the electronic GIS information. subspecies of the willow flycatcher. The Comment (67): A few comments At the time of listing, only specific 1957, fifth edition of the AOU Checklist pointed out technical errors such as sites on the Colorado River within the is the most recent version of the places where the proposed rule includes Middle Colorado Management Unit checklist that addressed subspecies. In a written description of the lands were known to have territories. 1973, the AOU separated the Traill’s proposed for inclusion and exclusion in However, based upon our criteria and flycatcher (Empidonax traillii) into the the designation, but the associated maps the wide-ranging nature of this bird as willow (Empidonax traillii) and alder do not always match the written a neotropical migrant (and it occupying (Empidonax alnorum) flycatcher. The description. migration stop-over habitat), we also Our Response: We appreciate consider the Colorado River within the AOU has yet to provide any subspecies commenters bringing those issues to our Hoover to Parker Dam and Parker Dam updates since its 1957 version. attention and have made corrections as to Southerly International Border However, other entities have needed. Please refer to the Summary of Management Units as occupied at the subsequently provided up-to-date and Changes from Proposed Rule section time of listing. AOU-endorsed descriptions. Today, the where we have corrected a number of Following listing and prior to the Clements Checklist presents more than mapping errors from the proposed rule. implementation of the LCR MSCP, 9,930 species of birds recognized by the Comment (68): There is an error in flycatcher territories were detected scientific and birding communities, Table 1 of the proposed rule regarding along the LCR mainstem below Hoover including the AOU. The southwestern breeding flycatchers from Parker Dam to Dam, primarily at Havasu NWR, but also subspecies of the willow flycatcher is the Southerly International Boundary. as mostly single territories sporadically recognized within the Clements This area has not been known to be distributed from Lake Mohave to Yuma Checklist (http://www.birds.cornell.edu/ occupied by breeding flycatchers since (Service 2002, Figure 8). clementschecklist/). Similarly, an the 1930s, and no nests have been Since implementation of the LCR additional authority on subspecies is the detected from 1991 to 2010. This area MCSP in 2005, flycatchers have list of The Birds of North America should be listed as ‘‘No’’ in the first occurred in abundance as migrants (http://www.bna.birds.cornell.edu/bna/ column (Known to be occupied at the throughout the length of the LCR; ). The Birds of North America time of listing (1991–1994)) and ‘‘No’’ in however, flycatcher territories within description of species and subspecies the second column (Territories detected the Lake Mead to Mexico planning area also provides taxonomic information (1991–2010)). have only been detected at the Havasu and is supported by the AOU, Cornell Our Response: We identified areas and Bill Williams River NWRs and Laboratory of Ornithology, and occupied at the time of listing at those within the Lake Mead National Academy of Natural Sciences. The streams (not portions of streams) where Recreation Area (MacLeod et al. 2008, flycatcher is also recognized in the Birds flycatcher territories were detected in pp. 89–92). As a result of implementing of North America resource as a any one season in surveys conducted updated survey protocols and with subspecies of the willow flycatcher. from 1991 to 1994 (Sogge and Durst additional information, these lone We are unfamiliar with any issue 2008). We considered a broader area to territories (primarily south of the Bill about flycatcher morphological be occupied than just the specific site Williams River along the LCR) have not measurements. We recommend where a territory was located because been detected since 2005 (MacLeod et reviewing the willow flycatcher flycatchers, as a neotropical migrant, al. 2008, pp. 89–92; MacLeod and summary, including the discussion travel between Central America and the Koronkiewicz 2009, pp. 54–56; 2010, about measurements (and subspecies) United States. Because flycatchers pp. 46–47; MacLeod and Pelligrini 2011, found in The Birds of North America’s occupy riparian areas along rivers while pp. 51–52; 2012, pp. 43–44). willow flycatcher life history traveling between wintering and Comment (69): In Table 2 of the description (Sedgwick 2000, entire). breeding grounds, we expect that many proposed rule to revise critical habitat This account can be acquired from The

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Birds of North America Online at Grande) were all used as authoritative Lake Mead near Pearce Ferry, or the http://www.bna.birds.cornell.edu/bna/. sources of information on breeding Muddy River. Commenters expressed Comment (71): The Service fails to flycatcher distribution and abundance. concern that these areas do not possess acknowledge work by F. Merriam Bailey The flycatcher rangewide database the primary constituent elements of (1928), McLeod et al. (2009), Ellis et al. developed and maintained by USGS essential features and contain habitat (2008), and others documenting an (Sogge and Durst 2008) compiles the that is temporary and not essential for expansion of the species. results of surveys conducted throughout the conservation of the species. Further, Our Response: We agree that the the bird’s range from 1991 through Federal agencies may not have number of known flycatcher territories 2007. We also examined 2008 to 2010 discretion to manage some of these and breeding sites has increased since data that the Service in Arizona, areas. its listing in 1995. The recent work Nevada, Utah, New Mexico, and Our Response: Flycatcher habitat is conducted by McLeod and Colorado, compiled and entered into naturally ephemeral and its mosaic-like Koronkiewicz (2009) and Ellis et al. separate databases and spreadsheets. distribution is dynamic because riparian (2008) have both been reviewed and are However, these post-2007 flycatcher vegetation is typically prone to periodic cited within the proposed and final data were difficult to comprehensively disturbance (i.e., flooding) (Service rules. We are uncertain exactly which F. incorporate into this rule because they 2002, p. 17). Flooding is a necessary Merriam Bailey document is referenced have not yet been analyzed and function in order to recycle habitat and within this comment, but it could be synthesized into the overall rangewide create vegetation in a structure and The Birds of New Mexico. Within our database. Therefore, much of our density needed for nest placement, to flycatcher life history summary compiled rangewide information ends replenish aquifers, and to distribute described above, we cited sources such following the 2007 breeding season. appropriate soils that create seed beds as Hubbard (1987, pp. 6–10), Unitt Comment (73): The IPCC models of for the germination and growth of (1987, pp. 144–152), and Browning climate change are neither accurate nor flycatcher habitat. The range and variety (1993, pp. 248, 250), that provided reliable. of stream flow conditions (frequency, flycatcher specific information. The Our Response: We addressed these magnitude, duration, and timing) (Poff historical breeding range of the models within our proposed rule (76 FR et al. 1997, pp. 770–772) that establish flycatcher includes southern California, 50542, August 15, 2011, pp. 50547– and maintain flycatcher habitat can southern Nevada, southern Utah, 50548), stating, ‘‘as is the case with all arise in both regulated and unregulated Arizona, New Mexico, western Texas, models, there is uncertainty associated flow regimes throughout its range southwestern Colorado, and extreme with projections due to assumptions (Service 2002, p. D–12). Because of their northwestern Mexico. The flycatcher’s used and other features of the models. dynamic water storage operations, the current range is similar to the historical However, despite differences in dams that operate the reservoirs range. In 1995, only 359 flycatcher assumptions and other parameters used identified in this comment, and others territories were known from California, in climate change models, the overall within the flycatcher’s range, can help Arizona, and New Mexico. Unitt (1987, surface air temperature trajectory is one establish extensive riparian habitat p. 156) estimated the entire of increased warming in comparison to within the conservation space of the southwestern subspecies was ‘‘well current conditions (Meehl et al. 2007, p. lake when the water recedes. These under 1,000 pairs, more likely 500.’’ In 762; Prinn et al. 2011, p. 527).’’ The processes have developed the riparian the July 23, 1993, flycatcher listing Service will continue to follow and habitat and prey components described proposal (58 FR 39495, p. 39498), 230 assess the science behind climate in the primary constituent elements of to 500 territories were estimated to change and update our summaries as essential physical or biological features exist. Following the 2007 breeding new information is published. that support flycatcher territories. season, USGS (Durst et al. 2008, p. 4) Comment (74): The Service’s Flycatcher habitat can be supported by estimated that 1,299 flycatcher suggestion of the need to suppress fire managed water that mimics key territories were known to exist is entirely archaic and dangerous. components of the natural hydrologic rangewide. The reason for the increase Our Response: The Recovery Plan cycle creating varying amounts of in the number of known territories is a (Service 2002, Appendix L) provides a flycatcher habitat important for its combination of improved survey effort description of land use and management recovery. and technique combined with improved actions that have led to the increased We acknowledge that in some management and population growth. occurrence of fires in riparian areas. The instances the discretion of a Federal Comment (72): Final reports are Service’s expectation of fire agency with regards to water available for the Lower Colorado River, management is consistent with the management may be limited. When Gila River, and Rio Grande for the years needs of the flycatcher, our policies action agencies evaluate their 2007 to 2010. Data from surveys under the Act, and implementation of responsibilities under the Act, conducted after 2007 would be useful to emergency actions, such as those distinguishing to what extent their incorporate into the proposal due to associated with fire management to agency has discretion is an important changes in bird numbers and bird use in preclude dangerous situations that consideration to determine their overall these areas. would place human life or property in proposed action and effects analysis Our Response: A variety of sources jeopardy. Our fire management when consulting with the Service under were used to determine breeding site recommendations focus on improving section 7 of the Act. location and information from 1991 to habitat conditions that would reduce Comment (76): One commenter 2010. The Recovery Plan (Service 2002), fire in riparian areas and return them to asserted that critical habitat designation the USGS flycatcher rangewide database a less frequent and more natural fire has little impact or effect to species in (Sogge and Durst 2008), the 2007 regime. remote areas or where public access is flycatcher rangewide report (Durst et al. Comment (75): The Service should limited. 2008), and recent survey information for not designate critical habitat in areas Our Response: The commenter did the 2008, 2009, and 2010 breeding that have ephemeral habitat such as not specify which areas were the subject seasons (including those from the Lower Horseshoe Reservoir, the confluence of of this comment. However, we proposed Colorado River, Gila River, and Rio the Virgin River and Lake Mead, upper areas as critical habitat that we

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determined meet the definition of that areas surrounding flood control Our Response: We have examined this critical habitat under the Act (see structures can similarly trap sediment area and are uncertain about the amount Critical Habitat, Background). It may be and water that facilitates the of marsh vegetation (e.g., cattails, etc.) true that limited benefits of critical development of riparian habitat. We and limited woody vegetation from habitat may be seen in some areas, and encourage coordination with the Service which flycatchers can nest, perch, and this is information that can be to help provide technical assistance to forage and to what extent this additional considered in an exclusion analysis of evaluate these areas. area provides essential habitat for any given area (see Exclusions). Comment (78): One commenter states nesting flycatchers. Comment (77): The proposed rule that habitat areas within existing power Our methodology focused on states that critical habitat does not line corridors and rights-of-way that are identifying areas of habitat that are include manmade structures such as required to be maintained under important for reaching the numerical aqueducts, roads, and other paved areas; existing Federal energy laws and territory and habitat-related goals however, some proposed stream regulations are not essential to the described in the Recovery Plan. We reaches, such as the San Gabriel River, conservation of the species because they proposed just over 98 km (61 mi) of do include manmade flood control currently do not, and in the future stream segments collectively along the channels, levees, and concrete drop cannot, contain the primary constituent Rio Grande, Coyote Creek, Rio Grande structures that require maintenance by elements of essential features; these Del Ranch, and Rio Fernando as the Corps including the occasional corridors should be identified and flycatcher critical habitat within the removal of deposited sediments. These removed from the final critical habitat Upper Rio Grande Management Unit. areas should be removed from the final designation. Similarly, several We believe these areas are capable of critical habitat designation. comments suggested exclusion of right- reaching the 75 territory goal Our Response: In the development of of-way corridors adjacent to bridges. established in the Recovery Plan. this final rule, we have reviewed lands Our Response: When determining In some Management Units, included in our proposal and, to the proposed critical habitat boundaries, we especially those with more abundant extent practicable, have revised and made efforts to avoid including habitat like the Upper Rio Grande removed developed areas from critical developed areas such as lands covered Management Unit, not all locations habitat that we determined do not by buildings, pavement, and other where flycatcher habitat occurs or may contain physical or biological features structures because such lands lack the occur, or areas where territories have essential for the conservation of the primary elements of physical or been detected, were designated as species (see Summary of Changes From biological features and primary critical habitat. Regardless of whether the Proposed Rule section, above). We constituent elements for flycatcher an area is designated as critical habitat, made every effort to remove all habitat. These types of developments those areas can still be important developed areas, such as housing are not typically found adjacent to rivers flycatcher habitats that contribute to developments, roads, and other lands within floodplains and, when they do recovery and are subject to section 7 of not reasonably believed to contain, or be occur, may be missing from or the Act. capable of supporting, the physical or inaccurately represented in existing Comment (80): One commenter was biological features essential for map sources. As a result, because of the concerned that the protection of flycatcher conservation. However, due large scope of this designation and the invertebrate prey as an essential to the limitations in technology, it is not limitations of maps, any such developed physical or biological feature is possible to remove every one of these lands, such as cement pads which precluded by current Service policy and developed areas. Nor does the Service support transmission or power poles or projects relative to the use of aquatic have the ability to ground truth and roads left inside critical habitat pesticides within the areas proposed for confirm each recommended developed boundaries, are not considered critical habitat designation in both area for removal. As a result, even at the designated as critical habitat because Arizona and New Mexico. The uses of refined mapping scale, the maps of the they lack the necessary physical or rotenone and antimycin A have been final designation may still include biological features. Therefore, a Federal sanctioned by the Service for the developed areas that do not contain action involving these developed lands treatment of aquatic communities for these features (see Criteria Used to would not trigger section 7 consultation native fish restoration, although both Identify Critical Habitat section). with respect to critical habitat or the substances have been proven to Developed areas that do not contain the prohibition of adverse modification, decimate aquatic invertebrate physical or biological features essential unless the specific action would affect assemblages. for the conservation of the species the physical or biological features in the Our Response: The flycatcher is an within the boundaries of critical habitat adjacent critical habitat. However, if insect-eating generalist (Service 2002, p. are not considered to be critical habitat, lands surrounding these developed 26), eating a wide range of invertebrate and, thus, actions in those areas would areas that fall within rights-of-way have prey including flying, and ground- and not trigger consultation unless they the physical and biological features to vegetation-dwelling insect species of affected adjacent critical habitat. develop the primary constituent terrestrial and aquatic origins (Drost et However, as described within this elements of flycatcher critical habitat, al. 2003, pp. 96–102). Wasps and bees rule, some developed areas, such as then they would be subject to are common food items, as are flies, irrigation ditches, levees, or reservoir consultation. beetles, butterflies, moths and bottoms, and the influence of Comment (79): One commenter caterpillars, and spittlebugs (Beal 1912, manipulated water, such as agricultural supported the addition of a 0.40-km pp. 60–63; McCabe 1991, pp. 119–120). return flow or treated waste water create (0.25-mi) segment of the Rio Fernando Diet studies of adult flycatchers found a conditions that support riparian habitat de Taos in the upper Rio Grande wide range of prey taken from small used by the flycatcher. In some Management Unit in New Mexico as flying ants to large dragonflies, with true instances, these areas can provide critical habitat, but also recommended bugs comprising half of the prey items unanticipated, but important expanding this critical habitat area to (Drost et al. 1998, p. 1; DeLay et al. opportunities for flycatcher include a marsh across from and west of 1999, p. 216). Willow flycatchers also conservation and recovery. It is possible Baca Park. took the larvae of non-flying species.

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From an analysis of the flycatcher diet territories have been documented on the against catastrophic loss. As a result, we along the South Fork of the Kern River, San Gabriel River since 1991. determined that it was not essential for California (Drost et al. 2003, p. 98), Comment (82): One commenter stated flycatcher conservation and removed it flycatchers consumed prey from 12 that, because the proposed reaches of from our critical habitat designation. different insect groups. Therefore, while Big Tujunga Wash and Little Tujunga Comment (83): One commenter stated the flycatcher is known to consume Wash in the Santa Clara Management that the north end of Recapture aquatic insects, it is an insect generalist Unit, California, have never been Reservoir and Recapture Canyon (a and is reliant on a variety of insects, occupied by flycatchers, it appears they tributary of the San Juan River) near many of which are not aquatic in their are being considered for critical habitat Blanding, Utah, appears to be potential origin. designation because they are within 35 flycatcher habitat, but the commenter The use of piscicides (chemicals that km (22 mi) of the Santa Clara River and was unaware if the area is occupied by kill fish) in fisheries management have the San Gabriel River. The commenter willow flycatchers. long prompted concerns over the stated that the areas between the Santa Our Response: We have no potential human health and ecological Clara River and San Gabriel River are documented or anecdotal reports of impacts. In June 2011, the AGFD urbanized and that there are features willow flycatchers at Recapture Director authorized the Rotenone that could serve as significant obstacles Reservoir or Canyon, in southwest Utah, Review Advisory Committee to advise to flycatcher migration between the within the San Juan Management Unit, and make recommendations regarding Santa Clara River, Big and Little nor was this area identified within the the use of rotenone and other piscicides Tujunga Washes, and the San Gabriel Recovery Plan. Typically, narrow for Arizona fisheries and aquatic River. Additionally, the commenter canyons can have abundant riparian wildlife management. Antimycin A is states that because the flycatchers are habitat, but not the expansive amounts no longer commercially available, not occupying Big Tujunga Wash, and it of floodplain and habitat needed for limiting current use to small supplies is unlikely they will, it is likely the flycatchers to establish territories. We held in inventory by some State and flycatchers are also not occupying or did however; identify and propose as critical habitat areas along the San Juan Federal fish and wildlife service going to occupy Little Tujunga Wash. River in Utah and New Mexico, as well agencies. Only rotenone formulations The commenter indicated that the as the Los Pinos River in Colorado, are currently available for purchase. proposed rule clearly stated it is not where flycatcher territories and migrant Four subcommittees were formed to designating areas as critical habitat flycatchers have been detected within provide technical expertise, opinion, solely because they are serving as this Management Unit. We encourage and analyses on the use of piscicides. In migration habitat. Therefore, the continued evaluation, survey, and December 2011, a final report was commenter believes that the cited reaches in Big and Little Tujunga management of new areas for flycatcher issued which confirmed the continued Washes do not meet the criteria for recovery and conservation. However, at use of piscicides. The report also critical habitat that is essential for the this time, without better information recommended that applications of survival of the flycatcher. about the about the quantity and quality rotenone be consistent with U.S. Our Response: While the Big Tujunga of the habitat for the willow flycatcher Environmental Protection Agency Wash is not considered to be occupied, at Recapture Reservoir and Canyon, we labeling requirements, appropriate State it is included in the final critical habitat will not propose it for critical habitat. and Federal laws and regulations, and designation because it is considered to Comment (84): One commenter noted the Rotenone Standard Operating be essential to the conservation of the that the Los Angeles County Flood Procedures manual. As both rotenone species. The Santa Clara, Ventura, and Control District is required by and antimycin A have impacts to non- San Gabriel Rivers, Piru Creek and Big environmental regulatory agencies to target aquatic organisms (including food Tujunga Canyon, were identified in the remove nonnative vegetation on lands resources for the flycatcher), an Recovery Plan as having substantial proposed for critical habitat designation evaluation of potential impacts to all recovery value in the Santa Clara at the Big Tujunga Wash Mitigation species in the area, including the Management Unit (Service 2002, p. 86). Area. Additionally, the commenter flycatcher would be required for any These areas are essential to flycatcher stated that a permit is required to proposed Federal action involving use conservation because they are conduct nonnative vegetation removal of these piscicides. anticipated to provide habitat for at the proposed area of Morris Reservoir Comment (81): The Service relied on metapopulation stability, gene and stated the San Gabriel River also incorrect information to classify the connectivity through this portion of the contains nonnative vegetation, such as occupancy status of the San Gabriel flycatcher’s range, protection against tamarisk and Arundo donax (giant River as no territories have been catastrophic population loss, and reed), and, in the past, portions of this detected on the river since 1991. population growth and colonization area, which are proposed for critical Our Response: In the proposed rule, potential. As a result, these river habitat designation, have been the Service stated that ‘‘* * * we refer segments and associated flycatcher mitigation locations for several District to breeding sites as areas where habitat are anticipated to support the projects. The commenter goes on to state flycatcher territories were detected. A strategy, rationale, and science of that the Service’s proposed restrictions territory is defined as a discrete area flycatcher conservation in order to meet on nonnative vegetation removal could defended by a resident single flycatcher territory and habitat-related recovery potentially interfere with the District’s or pair of flycatchers within a single goals. permit requirements and threaten to breeding season.’’ In determining Based on these comments, we undo years of effort and significant whether this area had been occupied reviewed maps and reports and expense by the District to restore since 1991, we used data from the reevaluated Little Tujunga Creek. We riparian habitat. The commenter USGS. This information was analyzed discovered that the 2.2-km (1.4-mi) believes that the critical habitat by Durst et al. (2008, p. 11), and it was segment of the Little Tujunga Creek is designation will conflict with determined that the San Gabriel River not essential for the flycatcher because maintenance of flood protection has had an established territory. it provides minimal habitat, facilities of the Corps at Big Tujunga Therefore, the Service concludes that metapopulation stability, or prevention Wash, Hansen Flood Control Basin, San

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Gabriel River, and the Santa Fe Flood habitat-related recovery goals described critical habitat designation. We Control Basin. in the Recovery Plan. For a full designate critical habitat in areas Our Response: The Service discussion of the analysis of the impacts outside the geographical area occupied acknowledges the concerns expressed of the designation on water supply by a species only when a designation by the commenter. The proposed operations, see Comment 15. limited to its range would be inadequate designation of critical habitat for the Comment (86): Several commenters to ensure the conservation of the flycatcher does not require that stated that designating critical habitat species, as defined by the Flycatcher restrictions be placed on nonnative immediately above Seven Oaks Dam Recovery Plan in the case with the vegetation removal. Rather, the threatens the ability of the water flycatcher. proposed rule does discuss some special agencies to put their recently obtained If a finding is made that an area is management considerations or actions State-issued appropriative water rights essential to the conservation of a that may be needed for essential features to use by developing and maintaining a species, we may include such areas as of flycatcher habitat, such as conservation pool behind the Dam. critical habitat even if they were not minimizing the clearing of vegetation Our Response: Thank you for your known to be occupied at the time of (including nonnatives) in some areas, as recommendations. The end point for listing, are not occupied currently, or do a recommendation. Additionally, we this critical habitat segment along the not currently contain the essential identify support for conservation Santa Ana River is the same that was habitat features. The Santa Ana measures that reduce habitat stressors finalized in our 2005 flycatcher critical Management Unit consists of a diverse that can allow native plants to flourish. habitat designation. We are not and widely distributed group of seven The Service will work closely with Los including an area immediately behind streams that were identified in the Angeles County Flood Control District Seven Oaks Dam in final critical habitat Recovery Plan as areas of substantial and any other partners to ensure that designation, but leave approximately 50 recovery value (although Oak Glen flycatcher conservation efforts are m (164 ft) distance between Seven Oaks Creek was not specifically named as a compatible with the needs of Dam and the critical habitat end point. tributary to the Santa Ana River) maintenance of flood control facilities. Comment (87): The Service’s (Service 2002, p. 86). Comment (85): Areas in Los Angeles determination that the proposed habitat The Santa Ana Management Unit, County are included in the proposed in the Santa Ana Management Unit is which is primarily comprised of the critical habitat because other lands essential for the conservation of the Santa Ana River drainage, specifically throughout the flycatcher’s range are so species is not supported by the best has a recovery goal of 50 flycatcher deficient that the Service cannot meet available scientific data for any of the territories. We proposed as critical Recovery Plan objectives otherwise. Los proposed stream segments in the Santa habitat segments along the lower Angeles County should not be burdened Ana Management Unit. The best portion of the Santa Ana River within with critical habitat designation for the available evidence from a recent survey Riverside County, which we were flycatcher and its restrictions for this demonstrates that most of the proposed mostly excluded under section 4(b)(2) of reason, especially considering the critical habitat in the Santa Ana the Act based on the Western Riverside significant adverse impacts to Los Management Unit is either completely County MSHCP (see Exclusions Angeles County’s flood protection and barren or fails to meet the minimum section), and also proposed areas within water supply. requirements for suitable riparian the San Bernardino National Forest. Our Response: In developing the habitat. If a geographical area is Areas within the middle portion of the critical habitat determination, the uninhabitable, it follows that it is not Santa Ana River were not proposed as Service did not solely rely on the currently occupied by the flycatcher, critical habitat. Recovery Plan, but also used and it cannot therefore be designated Since the flycatcher was listed, the information from peer-reviewed absent a finding that the occupied stream segments proposed as flycatcher journals, conservation plans developed portions of the habitat are inadequate critical habitat have since be found to by States and counties, scientific status (50 CFR 424.12(e)). The Service has possess flycatcher territories from the surveys and studies, biological made no such finding, and the best lower portions of the Santa Ana River assessments, and other unpublished available evidence would not support drainage near Prado Dam to the upper materials and expert opinion or such a finding. portion and tributaries within the San personal knowledge. The Service used Our Response: Section 3(5)(A)(i) of Bernardino National Forest. A total of the Recovery Plan for the flycatcher to the Act provides for the designation of 30 flycatcher breeding sites were known help identify those areas that contain critical habitat in specific areas within within this Management Unit, with a the physical or biological features the geographical area occupied by the high of 49 territories detected in 2001. essential for the conservation of the species, at the time it is listed which Together, these stream segments are species to guide our decision. There are contain the physical or biological essential for flycatcher conservation numerous drainages in the flycatcher’s features essential to the conservation of because they are anticipated to provide range that have the physical or a species, and which may require habitat for metapopulation stability, biological features essential for the special management considerations or gene connectivity through this portion flycatcher; however, the analysis for the protection. Under section 3(5)(A)(ii) of of the flycatcher’s range, protection Recovery Plan identified those the Act’s definition of critical habitat, against catastrophic population loss, drainages that are most vital to recovery we can designate critical habitat in areas and provide for population growth and of the species, including segments outside the geographical area occupied colonization potential. As a result, these within the boundaries of Los Angeles by the species at the time it is listed, river segments and associated flycatcher County. The areas proposed for upon a determination that such areas habitat are anticipated to support the designation as critical habitat were are essential for the conservation of the strategy, rationale, and science of designed to provide sufficient riparian species. For example, an area currently flycatcher conservation in order to meet habitat for breeding, non-breeding, occupied by the species but that was not territory and habitat-related recovery territorial, dispersing, and migrating occupied at the time of listing may be goals. flycatchers in order to reach the essential for the conservation of the Comment (88): The proposed rule geographic distribution, abundance, and species and may be included in the fails to distinguish between currently

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occupied and unoccupied areas within (Service 2002) was developed using Comment (90): The Service’s finding the Santa Ana Management Unit. If the information from 58 individuals from that the proposed stream segments in Service meant to suggest that all numerous scientific agencies and the Santa Ana Management Unit are proposed critical habitat in the Santa stakeholders, including data on habitat essential for flycatcher conservation is Ana Management Unit is currently assessments and surveys. The Recovery contradicted by the discussion of occupied, then this conclusion is Plan identifies specific river reaches, potential effects of climate change on contradicted by the best available within Management Units, where flycatcher habitat included in the scientific data, which reveal that about recovery efforts should be focused and proposed rule. If climate change will two-thirds of the proposed habitat is where substantial recovery value exists cause increased warming, increasingly either completely barren or lacking in of currently or potentially suitable frequent warm spells and heat waves, riparian habitat capable of supporting habitat (Service 2002, p. 86). Even so, in greater frequency of heavy-precipitation flycatchers. To support the designation developing the critical habitat events, decreased stream flows, and of the Santa Ana Management Unit as determination, the Service did not greater frequency of fires, as asserted in currently occupied, the Service must at solely rely on the Recovery Plan, but the proposed rule, then the riparian least demonstrate, with the best also used information from peer- habitat scattered throughout the stream available scientific data, that each reviewed journals, conservation plans segments in question is likely to segment proposed for designation is developed by States and counties, decrease, reducing habitat available for currently used by the flycatcher. scientific status surveys and studies, flycatcher breeding, foraging, migration, Unoccupied areas in the Santa Ana biological assessments, and other and shelter. Management Unit should be removed unpublished materials and expert Our Response: The Service does not from the final designation, or properly opinion or personal knowledge. As believe that the discussion of the supported as presently unoccupied discussed above, we have determined potential effects of climate change to the habitat. that, while the Santa Ana Management flycatcher contradicts the essential Our Response: While the proposed Unit was not within the geographical nature of the stream segments identified critical habitat segments within the area known to be occupied at the time in the Santa Ana Management Unit. The Santa Ana Management Unit were not of listing, the area is essential to the discussion in the proposed rule within the geographical area known to conservation of the species, flycatcher concerning the various effects of climate be occupied at the time of listing, all of territories have been detected change states that these actions may the segments have been known to be throughout the lower and upper present a challenge evaluating habitat occupied at some time since listing (see portions of the river drainage (Service conditions for the flycatcher. The the ‘‘Santa Ana Management Unit, 2002, figure 5; p. 8, 67, 84, and 86), and Service also states in the proposed rule California’’ discussion above). is appropriately identified as critical that exactly how climate change will Additionally, under the definition of habitat. affect precipitation in the specific areas critical habitat provided in the Act, an with flycatcher habitat is uncertain. All In the definition of critical habitat area need not be currently occupied in potential threats to the flycatcher and its under the Act, areas that were occupied order to be included in a critical habitat habitat are taken into consideration at the time of listing and not occupied designation. If an area meets the when identifying areas for critical at the time of listing are treated definition of critical habitat as habitat designation, and we state in the separately. Areas that are included in interpreted for any given species (see proposed rule that these areas may Criteria Used to Identify Critical Habitat critical habitat because they were not require special management section above), the area should be known to be occupied at the time of considerations. proposed as critical habitat regardless of listing, yet are determined to be Comment (91): Several commenters its current occupancy status. essential to the conservation of the asserted that California’s State Water Comment (89): Several commenters species, need not have the features Resources Board Decision 1649 supports were concerned with the Service’s essential to the conservation of the a conclusion that the Santa Ana reliance on the Recovery Plan to justify species. As such, a finding that an area Management Unit is not essential proposing portions of the Santa Ana contains the essential habitat features habitat for the flycatcher and that Seven Management Unit as critical habitat. that may require special management is Oaks Dam and Prado Dam do not The commenters asserted that there are not required for areas that were not require special management no data, habitat assessments, or survey known to be occupied at the time of considerations or protections. The results in either the Recovery Plan or in listing. commenters stated that the Service must the proposed rule to support a In our discussion of the physical or consider State Water Resources Board conclusion that substantial recovery biological features essential for the Decision 1649 because it is required to value exists in the listed stream conservation of the species in the do so by section 2(c)(2) of the Act, segments in the Santa Ana Management proposed rule, we stated that flycatcher which obligates the Service to cooperate Unit, and, that by relying so heavily on habitat that is not currently suitable for with State and local agencies to resolve Recovery Plan, the Service has failed to nesting at a specific time, but is useful water resource issues in concert with consider the physical or biological for foraging and migration, can still be conservation of endangered species. features essential for the conservation of important for flycatcher conservation. Additionally, the best available the species, special management Feeding sites and migration stopover scientific evidence demonstrates special considerations, and the current best areas are important components for the management of the flood control and available scientific data regarding the flycatcher’s survival, productivity, and water conservation operations at Seven actual features of the specific stream health, and they can also be areas where Oaks Dam or Prado Dam would have segments themselves. new breeding habitat develops as negligible benefit to the species while Our Response: The Service has used nesting sites are lost or degraded severely damaging existing water rights the best available scientific data in our (Service 2002, p. 42). These and local water supplies. determination of stream segments that successional cycles of habitat change are Our Response: The commenters meet the definition of critical habitat for important for long-term conservation of asserted that the State Water Resources the flycatcher. The Recovery Plan flycatcher habitat. Board Decision 1649 determined the

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area is not essential. However, the State within and adjacent to the San Gabriel breadth or width to support any but Water Resources Board Decision 1649 River Unit encourage riparian transient or migratory individuals. language was not used in the context of conditions and the physical and biotic The commenters additionally pointed critical habitat as defined under section conditions favorable and beneficial to out that the Service’s 2002 biological 3 of the Act. A designation of critical the flycatcher. opinion on operations for Seven Oaks habitat is made by the Service in Our Response: The Service agrees that Dam and the possible effects on the accordance with the provisions of the dam operations can cause water to flycatcher concluded that operation of Act and its implementing regulations. spread out over a wider area more the dam for flood control purposes was Critical habitat designation is not consistently than there would be not likely to adversely affect the required under and is not governed by without the dam, potentially causing the flycatcher. The commenter believes the State law. When we conduct a critical development of riparian habitat over a inclusion of Seven Oaks Dam and habitat analysis, we use the best large area. However, depending on how Reservoir in the proposed rule is available scientific data to determine the each dam is operated, flycatcher habitat therefore inconsistent with the Service’s specific areas within the geographical may or may not be able to develop due own assessment of impacts of dam area occupied by a species, at the time to the amount and length of time water operations on the flycatcher. it is listed in accordance with the Act, is stored or covers the floodplain or lake Our Response: The Service included on which are found those physical or bottom. Additionally, some dams divert the areas in question in the vicinity of biological features essential for the water from a river such that stream Seven Oaks Dam in the proposed conservation of the species which may flows downstream of the dam are not revised critical habitat designation for require special management consistent or substantial enough, and flycatcher because we determined these considerations or protection; and sometimes water rarely returns to the areas are essential for the conservation specific areas outside the geographical river channel, thereby removing the of the species based on habitat area occupied by a species at the time opportunities for habitat to persist. conditions and information provided in it is listed, upon a determination that Therefore, we do not agree with the the flycatcher recovery plan, not such areas are essential for the commenters’ assertions that operations because we believe dam operations are of the Seven Oaks Dam and Prado Dam conservation of the species (see Critical adversely impacting the species, as the or water management practices within Habitat section above). commenter suggested (see Criteria Used The State Water Board is not charged and adjacent to the San Gabriel River To Identify Critical Habitat section with the legal responsibility to designate Unit will necessarily benefit the above). Additionally, as discussed in the critical habitat, and Decision 1649 does flycatcher by increasing the amount of response above concerning the not incorporate critical habitat as suitable riparian habitat or that designation of the physical dam and defined by the Act (as we did in the designation of critical habitat will reservoir, the Service is not designating proposed revised critical habitat rule compromise current operations. critical habitat on manmade features and in this final rule). Thus, any Comment (93): Several commenters that do not contain the physical or decision made by the State under State stated that the environmental impacts law regarding ‘‘essential’’ flycatcher and mitigation associated with the biological features essential for the habitat cannot supersede this final construction and operation of Seven conservation of the species for the critical habitat analysis and designation. Oaks Dam were addressed in the 1988 flycatcher, or the reservoir behind Seven We further note that State Water ‘‘Phase II General Design Memorandum Oaks Dam (see Summary of Changes Resources Board Decision 1649 (2009, p. on the Santa Ana River Mainstem From the Proposed Rule above for 23) specifically states that any analysis Including Santiago Creek, California, further discussion). of impacts of potential water Main Report and Supplemental Comment (94): Several commenters conservation operations (i.e., water Environmental Impact Statement’’ (EIS). asserted that the critical habitat diversion or holding water for sale) on The commenters asserted that the designation in the Santa Ana River, endangered species must ensure all mitigation required by the supplemental including its associated tributaries, appropriate agencies have been EIS continues to sufficiently address the above and below Seven Oaks Dam, may consulted. As a result of the California biological impacts from operations of prevent public agencies from providing Regional Water Quality Control Board’s the Seven Oaks Dam. and maintaining safe passage of large decision, specific analysis of water The commenters also stated that the flood flows and will impact the ongoing diversions or holding water for 2000 final biological assessment construction, operation, and conservation by Federal Agencies must completed by the Corps to evaluate the maintenance of several elements of the be evaluated under section 7 of the Act biological impacts of post-dam Santa Ana River Mainstem Flood for effects on the flycatcher and its operations at Seven Oaks Dam Control Project. The commenters habitat. It is through section 7 determined that in Subarea 1 (which expressed concern that the designation consultation that we will evaluate the includes the dam and reservoir pool/ of critical habitat would place impacts of the proposed water diversion inundation area, and encompasses the significant restrictions on operations or conservation operations on the 100-year floodplain up to an elevation and management and potentially affect flycatcher and its designated critical of about 790 m (2,580 ft)), operations of the lives and property of millions of habitat. Seven Oaks Dam for flood control, citizens. The commenters also assert Comment (92): Several commenters would have no effect on the flycatcher. that any restriction of the operation of asserted that the current operations of The commenter added that the Corps- Seven Oaks Dam risks flooding on the both Seven Oaks Dam and Prado Dam determined Subarea 1 lacked suitable Santa Ana River, including the potential benefit the species by increasing the habitat for the flycatcher, and that damage to infrastructure operated by the availability of suitable riparian habitat, although emergent riparian vegetation water management agencies which would be compromised by the occurred in one portion of Subarea 1 downstream of Seven Oaks Dam, and proposed designation of the Santa Ana (Santa Ana Canyon), the Corps ignores the congressional purpose of Management Unit. Similarly, one determined that no adverse impact to authorizing and funding the commenter noted that the existing and the flycatcher was anticipated because construction of the Santa Ana Mainstem ongoing water management practices the patches were not of sufficient Project for the express purpose of

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preventing flood damage to life and Comment (96): A commenter Comment (98): Many commenters property. expressed concern that critical habitat identified particular areas that they Our Response: Under section 7 of the designation would restrict or eliminate believed should not be designated Act, a Federal agency consults with the the continuation of riparian because critical habitat will Service to ensure activities it undertakes management efforts such as wildland unnecessarily burden the regulated do not adversely modify designated fuels reduction projects, and biological public and will overload Service staff critical habitat. However, section 7(p) of and mechanical control of tamarisk and with implementation of the designation. the Act, concerning Presidentially Russian olive. Specifically, many private landowners declared disaster areas, allows for Our Response: Designation of critical with water diversions, cattle ranches, emergency actions to be taken without habitat has no impact on decisions that and agricultural property, plus residents section 7 consultation in the event of an private landowners make on their land in areas dependent on recreation to ‘‘emergency situation which does not that do not require Federal funding or support local economies throughout the allow the ordinary procedures of this permits. Federal agencies that flycatcher’s range, commented that this section to be followed.’’ Thus, the undertake, fund, or permit activities that designation would cause them harm Service does not anticipate that any may affect critical habitat are required to economically, could limit the ability of consultation in this area would require consult with the Service to ensure such farmers and ranchers to till productive that species conservation take actions do not adversely modify or farmland, could limit use of fertile precedence over protection of human destroy designated critical habitat. grazing land, could restrict the life or property. Our consultation record Critical habitat does not close any utilization of critical water rights, and since 1995 has demonstrated that the public or private lands to most could delay projects through the listing of the flycatcher or designation of activities; critical habitat designation regulatory process. critical habitat has not resulted in the only serves to identify areas essential to Our Response: Pursuant to the Act, inability to protect existing flood control flycatcher conservation. Should projects we are statutorily required to designate structures or operations. The Service be proposed for these areas that require critical habitat for a federally listed believes that flycatcher conservation, Federal funding or permitting, the species if it is determined to be both the requirements of Federal agencies to Federal agency would be required to prudent and determinable. We made a evaluate and consult on potential disclose the potential negative impacts determination that critical habitat was adverse effects to the flycatcher and its to flycatchers or their primary both prudent and determinable in our critical habitat can be compatible with constituent elements. previous designation for the flycatcher the maintenance of flood control (62 FR 39129, July 22, 1997). We further Our environmental assessment for the structures and operations (see Comment note that we were previously under proposed rule (section 3.5.2.1) 15 for more explanation regarding court order to revise flycatcher critical concludes that there would be minimal impacts to water operations). habitat (69 FR 60706, October 12, 2004; Comment (95): One commenter impacts on fire risk reduction projects 76 FR 60886, October 19, 2005) and requested that the Service buffer its and wildland fire suppression projects. reached a settlement agreement with critical habitat designation by removing Conservation activities and measures, plaintiffs and the Court for this current from critical habitat the area 60 m (200 such as appropriate seasonal timing and revision (our proposal was published at ft) from the center line of a highway to avoiding occupied locations, are 76 FR 50542, August 15, 2011). Please minimize any disturbance to the critical limitations that will continue to allow see the Previous Federal Actions section habitat that might occur as a result of fire management goals to be achieved. for a discussion of the litigation history any routine maintenance and repair Furthermore, this rule and the Recovery concerning this designation. work. Plan supports proposed management Critical habitat designations do not Our Response: We identified the actions that reduce the land constitute or create a regulatory burden, lateral extent of all proposed lands for management actions that result in the by themselves, in terms of Federal laws critical habitat designation as those increase in exotic plant species and and regulations on private landowners areas within the boundaries of the 100- supports actions that improve landscape carrying out private activities, but in year floodplain that currently support, conditions allowing native plants to certain areas they may trigger additional or have the possibility to support, the flourish. State regulatory reviews and other physical or biological features essential Other Comments Related to Exclusion requirements. For example, actions for the flycatcher. We identified that Areas occurring in critical habitat in California existing paved roadways that may occur may be subject to additional regulatory within the critical habitat boundaries Comment (97): One commenter does reviews under the California where habitat could not be established, not support the exclusion of properties Environmental Quality Act (California would not be considered critical habitat, under section 4(b)(2) of the Act. Public Resources Code, sections 21000– even though we were unable to identify Our Response: Exclusion of areas 21178, and Title 14 CCR, section 753, and extract those locations from our from final designation of critical habitat and Chapter 3, sections 15000–15387) designation. However, routine is provided for under section 4(b)(2) of and other State laws and regulations. maintenance activities on roadways or the Act, when a determination is made When a private action requires Federal adjacent to roadways could affect that the benefits of excluding any area approval, permit, or is federally funded, critical habitat or the flycatcher from critical habitat outweigh the the critical habitat designation may depending on the type of activity, extent benefits of including that area in critical impose a Federal regulatory burden for of maintenance, season of work, habitat, provided that exclusion of that private landowners; absent Federal development of temporal access roads, area from critical habitat will not result approval, permits, or funding, the or any number of various actions. The in extinction of the species. Please see designation should not affect farming impacts to the flycatcher or to its the Application of Section 4(b)(2) of the and ranching activities on private lands. designated critical habitat must be Act section for a full discussion of the Similarly, a Federal nexus could result considered by any Federal agency areas we have determined are in the designation affecting future land planning to conduct or permit such appropriate to exclude from the final use plans, and the designation may activities. designation of critical habitat. trigger State requirements which could

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impact such plans. However, we note other land. This allowance for by the Federal action agency under that lands included in the proposal are relocation of the deed restriction to section 7 of the Act. Our consultation waterways with limited development other lands does not provide long-term record since 1995 has demonstrated that (housing or commercial structures) conservation and management of the the listing of the flycatcher or potential. As explained in this rule, we area. As a result, we have determined designation of critical habitat has not are required to and have developed an that the benefits of including these 16 resulted in the inability to protect economic analysis of the effects of this ha (39 ac) outweigh the benefits of existing flood control structures or designation pursuant to section 4(b)(2) excluding this area. Thus, this area is operations. The Service believes that of the Act. Our economic analysis included in this final designation of flycatcher conservation resulting from considers the issues raised by the critical habitat. the requirement of Federal agencies to commenters. We also evaluated the approximately evaluate and consult on potential Comment (99): We received a request 136 ha (336 ac) of Ventura County adverse effects to the flycatcher and its to exclude Newhall Land and Farming Floodplain lands restrictive covenant. critical habitat can be compatible with Company along the Santa Clara River One aspect of this restrictive covenant the maintenance of flood control and Castaic Creek in Los Angeles and that may benefit the flycatcher in the structures and operations. Ventura Counties, California, under future is farmland that may be scoured The Service is very sensitive to the section 4(b)(2) of the Act, as a result of by the river will not be converted back need to allow response efforts necessary the establishment and implementation to farmland after the scouring event has to avoid imminent loss of human life or of a collection of conservation occurred. However, due to the property. Section 7 of the Act also easements. We also identified this uncertainty on when this may occur in allows for emergency consultations in location in our July 12, 2012, amended the future and the fact that the 136 ha response to an act of God, disasters, proposal (77 FR 41147) as an area we (336 ac) is not currently receiving long- casualties, national defense, or security were considering for exclusion under term conservation and management to emergencies (such as to expedite section 4(b)(2) of the Act. The benefit the flycatcher, we determined measures required to ensure human commenter stated that land owned by that the benefits of including these areas health and safety) (50 CFR 402.05). Newhall Land and Farming Company from designation of critical habitat Emergency consultation procedures within the Santa Clara River outweigh the benefits of excluding these allow action agencies to incorporate Management Unit is already protected areas. Thus, these areas are included in endangered species concerns into their through existing, pending, and future the final designation of critical habitat. actions during the response to an conservation easements and other None of the remaining 537 ha (1,327 emergency. If a Federal agency must management measures. ac) of Newhall Land and Farming take emergency action that may affect a Our Response: In developing this Company lands are in conservation listed species or critical habitat, the revised final designation, we have easements or restrictive covenants at the agency would contact the Service to considered Newhall Land and Farming present time to benefit the flycatcher; identify actions that could be Company’s comments regarding therefore, these areas were not excluded implemented to minimize take of listed exclusion from critical habitat. We from the final critical habitat species while responding to the determined that approximately 807 ha designation under section 4(b)(2) of the emergency. The Federal action agency (1,993 ac) of land within the Santa Clara Act. would initiate formal consultation after River Management Unit owned by Comment (100): One commenter the fact and provide necessary Newhall Land and Farming Company asserted the Santa Ana River levees documentation to the Service for an meet the definition of critical habitat should be excluded from critical habitat after-the-fact biological opinion that under the Act. In our exclusion analysis designation because levee operations documents the effects of the emergency under section 4(b)(2) of the Act, we and maintenance activities are required response on listed species or critical evaluated Newhall’s lands that have by the Corps and certain maintenance habitat. Therefore, we do not believe been placed in conservation easements activities require authorization from delays due to section 7 consultation on and are currently under a long-term both the Corps and the Environmental levee operations and maintenance management plan (see Exclusions Protection Agency. Any designation of activities should pose a significant risk section above). Of the 807 ha (1,993 ac) critical habitat would require avoidance, to human health and safety, and we did of land along the Santa Clara River minimization, and conservation for not exclude any areas from this final owned by Newhall Land and Farming impacts to areas designated as critical critical habitat designation on the basis Company within the Santa Clara River habitat, and would initiate the section 7 of section 7 consultation on these Management Unit, 118 ha (291 ac) are consultation process. This would likely activities. in conservation easements at the present prevent or delay the maintenance of Comment (101): The San Diego time and are being managed under the these critical flood control facilities, County Water Authority is requesting long-term Natural River Management required by the Corps, and thereby pose exclusion because areas along the San Plan. We determined that the benefits of a potential threat to public health and Luis Rey River and along Agua exclusion from critical habitat outweigh safety. Hedionda Creek where existing right-of- the benefits of inclusion for a 4.4 km Our Response: The determination of way pipelines cross the streams would (2.7 mi) portion of the Santa Clara River whether levee operations or require maintenance operations; the east of Interstate 5 (see Exclusions maintenance may adversely affect the areas are not known to contain section). areas designated as critical habitat for flycatchers; and any adverse effects to An additional 16 ha (39 ac) are the flycatcher is evaluated on a project- physical or biological features essential located within the Turkey Ranch specific basis by the Federal action for the conservation of the species in conservation easement of the Resource agency and the Service. Consultation on these areas would be minor and Management Development Plan; existing or future Federal projects, such temporary. however, according to the deed as operations and maintenance of levees Our Response: The existing right-of- restriction, under certain circumstances, for flood control conducted by the way pipelines are within the the owner will have the right to relocate Corps, if determined to be necessary, geographical range of the flycatcher all or a part of the deed restriction to would either be reinitiated or initiated identified at listing, have had

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documented occupancy since listing, flycatcher, there are no species-specific Nevada, is within the planning area for and intersect some stream reaches such management actions, other than the 30-year incidental take permit for as the San Luis Rey River and Agua monitoring, that currently benefit the the Clark County MSHCP issued in Hedionda Creek. Some of the areas in flycatcher. Furthermore, a regulatory 2001, to Clark County, the cities of Clark question are covered by the San Diego benefit of inclusion exists because we County, and Nevada Department of County Water Authority HCP, but also anticipate a Federal nexus (with the Transportation. The Clark County fall within the boundaries of the San Corps under the Clean Water Act) for MSHCP permit authorized incidental Diego County Subarea Plan under the section 7 consultation for activities in take of 2 listed species and 76 unlisted Multiple Species Conservation Plan and this area. Designation of this area as species in the event they become listed the Carlsbad HMP. After carefully critical habitat would provide a benefit during the permit term. balancing the considerations involved by providing an additional level of Incidental take of six riparian bird in determining whether lands should be review of proposed activities that might species, including the flycatcher, was included or excluded from the adversely modify habitat that contains conditioned in the issuance of the Clark designation of critical habitat, we have the physical or biological features County MSHCP permit because a large concluded that the benefits of excluding essential for the conservation of the proportion of the species’ total habitat areas within the boundaries of the San species. Therefore, we have determined in Clark County is located on lands that Diego County Subarea Plan under the that the benefits of including the San have little or no protective status. The Multiple Species Conservation Plan and Gabriel River between Morris Reservoir Clark County MSHCP estimated 50 Carlsbad HMP outweigh the benefits of and Santa Fe Dam from final revised percent of the total riparian habitat in inclusion (see Exclusions for further critical habitat outweigh the benefits of the County was located on private or discussion). Regarding the areas outside excluding this area. Thus, this area is local government-controlled land the boundaries of the San Diego County included in this final designation of classified as unmanaged or managed for Subarea Plan under the Multiple critical habitat. multiple uses, where conservation Species Conservation Plan and Carlsbad Comment (103): One commenter actions specific to these areas to ensure HMP, we do not believe the requested an exclusion of lands located adequate protection for the riparian maintenance operations would negate at the Big Tujunga Wash Mitigation birds were not in place. Consequently, the value of these areas in the Area in California from critical habitat the Service’s permit conditioned conservation of the species. As a result, designation because the area has been incidental take of these birds on the we have determined that the benefits of working under a master plan since 2000, completion of a conservation inclusion outweigh the benefits of with the cooperation and knowledge of management plan that would: (1) exclusion of these areas. Thus, these the Service, to preserve and enhance Identify the management and portions of the San Luis Rey River and riparian habitat. monitoring actions needed for riparian Agua Hedionda Creek outside the San Our Response: We appreciate the habitats and associated covered species Diego County Subarea Plan under the conservation that the Big Tujunga Wash along the Virgin River; and (2) identify Multiple Species Conservation Plan and Mitigation Area has benefitted multiple the acquisition of private lands in desert Carlsbad HMP are included in this final species and their habitats, including the riparian habitats. The total number and designation of critical habitat. flycatcher, and look forward to their location of acres to be acquired was to Comment (102): One commenter continued cooperation with the Service. be identified in the conservation requests exclusion from critical habitat We anticipate a Federal nexus for management plan through the MSHCP’s designation on the proposed segment section 7 consultation (with the Corps Adaptive Management Process and between Morris Reservoir and Santa Fe under the Clean Water Act) for activities agreed to by the permittees, the land Dam on the San Gabriel River in at this mitigation site. Designation of management agencies involved in the California because the area is this area as critical habitat would implementation of the MSHCP, and the unoccupied and of poor quality, and the provide a benefit by providing an Service. recent completion of a Flycatcher additional level of review of proposed In 2004, the City of Mesquite initiated Management Plan for the proposed activities that might adversely modify development of a separate aquatic and segment on the San Gabriel River habitat that contains the physical or riparian HCP (Virgin River HCP) in addresses flycatcher conservation in this biological features essential for the response to the disposal of segment. conservation of the species. Also, approximately 4,047 ha (10,000 ac) of Our Response: We consider this area conservation actions are likely to nearby BLM land. This HCP was to be occupied (see Response to continue in this area with or without initiated because of potential effects Comment 81 for more information). critical habitat designation, limiting the from development of this land on listed Additionally, although the area in benefits of exclusion. Therefore, we species associated with the Virgin River question was not occupied at the time determined that the benefits of that are not included in the Clark of listing, the area is within the including this area from designation of County MSHCP. It was anticipated by geographical range of the species, has critical habitat outweigh the benefits of the Clark County MSHCP permittees been occupied since listing, contains the excluding the area. Thus, this area is and the Service that completion of the physical or biological features essential included in the final designation of Virgin River HCP would fulfill the to flycatcher conservation, and was critical habitat. original intent in the Clark County identified in the Recovery Plan as being Comment (104): We received MSHCP permit for the permittees to essential for flycatcher recovery (see comments recommending we exclude develop a Virgin River conservation Criteria Used To Identify Critical the Virgin River in Clark County, management plan. Therefore, in order to Habitat section above). We have Nevada, as a result of the Clark County avoid redundant planning efforts, Clark reviewed the submitted management MSHCP. We identified this location in County completed a Conservation plan and have determined that although our proposal as an area we were Management Assessment in November it was effective immediately (September considering for exclusion under section 2008, with Service concurrence, 5, 2012), and there are ongoing 4(b)(2) of the Act. fulfilling their permit term and management actions that benefit Our Response: The entire proposed condition for completing a conservation multiple species’ habitat, including the Virgin River segment in Clark County, management plan for the Virgin River.

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This assessment focused on species in lands leased from USBR and the NPS. In addition, there may be Federal the upland areas along the Virgin River Funding for the operation and involvement in the funding of the rather than the riparian and aquatic maintenance of Overton WMA results management of the area that could species occurring in the 100-year primarily from Federal Aid in Wildlife provide benefits of including the area in floodplain of the river, as that would be Restoration Act funds (74 percent) with critical habitat. the focus of the Virgin River HCP. an additional 25 percent funded by the Based on the above factors, we The Virgin River HCP is currently State, and 1 percent funded by Federal determined that the benefits of under development but is not yet Aid in Sport Fish Restoration Act funds. including Overton WMA land (6.5 km completed. Therefore, conservation Pursuant to Federal Aid regulations, the (4.0 mi)) occurring along the Virgin actions that would minimize and property must continue to serve the River from designation of critical habitat mitigate impacts specific to Virgin River purpose for which it is funded, in this outweigh the benefits of excluding the riparian and aquatic species occurring case for waterfowl and other wetland area. Thus, this area is included in the in the river and its 100-year floodplain, species (16 U.S.C. 669–669i; 50 Stat. final designation of critical habitat. including the flycatcher, are not yet in 917). Other Comments Related to Economic place. Overton WMA lands along the Virgin Impacts and Analysis Additionally, while the MSHCP River occur in an important flycatcher planning area encompasses the entire breeding area known as Mormon Mesa. Comment (106): One entity segment of the Virgin River in Nevada, Other lands in this area are managed by representing mining interests states that much of the riparian habitat along this BLM, USBR, Clark County, and multiple any restriction or interruption imposed segment occurs on lands managed by private entities. This area is on water transportation and diversions entities other than the MSHCP undeveloped and subject to flooding to maintain critical habitat would have permittees, including the BLM, NPS, events and river flows that provide a a dramatic impact on mining operations. and State of Nevada. Although these relatively natural mosaic of habitats Further, any such restrictions are agencies are signatories to the MSHCP’s including cattail marshes and riparian attributable solely to the designation of Implementing Agreement, they retain forest consisting of tamarisk, Gooddings critical habitat. management authority and are willow, and coyote willow. Due to flood Our Response: Nearly all of the ultimately responsible for activities events, suitable habitat and occupied mining sites located in or near proposed occurring on their lands and impacts sites have shifted over the years, but all critical habitat are in areas occupied by associated with those activities, such as breeding sites have been located within the flycatcher where Federal agencies livestock grazing and recreational a 1-km (0.62-mi) wide floodplain and are already aware of the presence of the activities. In addition, other activities 6.6-km (4.1-mi) long stretch of the river. species. Thus, any future section 7 that negatively affect the habitat, such as A management plan for Overton consultations related to the mining water resource development, are not WMA, which included strategies for operations would occur regardless of covered activities under the MSHCP and managing flycatcher habitat, was whether critical habitat is designated. not under the jurisdiction or authority completed in December 2000, to provide Furthermore, as described in the of the permittees, and threats, such as a framework for implementing Service’s memorandum provided in the occurrence and spread of biocontrol management actions for the next 10 Appendix C of the draft economic agents, are not under the control of any years. This plan is targeted for revision analysis, project modifications likely to of the land managers or owners. in the future. The main strategy be requested to avoid adverse Therefore, threats to the flycatcher and identified in the plan to benefit modification are likely to be similar to its habitat not under the control, flycatcher (and other neotropical modifications requested to avoid responsibility, or authority of the migratory birds) along the Virgin River jeopardy. Thus, the incremental effects MSHCP permittees remain a concern of Overton WMA is to maintain and of the designation in these cases are and have yet to be addressed. enhance dense patches of coyote willow likely to be limited to minor Based on the above factors, we for occupied and breeding habitat for administrative costs. determined that the benefits of flycatcher. Currently, no enhancement One exception is the Morenci Mine in including this area from designation of projects have been implemented by the the San Francisco Management Unit. critical habitat outweigh the benefits of NDOW at Mormon Mesa although the The flycatcher occupies this unit; excluding the area. Thus, this area is NDOW is in the initial stages of however, the area was not previously included in the final designation of developing plans with the USBR to proposed for critical habitat designation, critical habitat. remove tamarisk and plant native and there is no history of formal section Comment (105): We received requests riparian species in their place along the 7 consultation in the area. Thus, we to exclude segments of the Virgin River Virgin River of Overton WMA. assume the designation would increase within the Overton Wildlife Up until recently, natural conditions the awareness of Federal agencies of the Management Area (WMA) in Clark have maintained suitable flycatcher need to consider impacts to flycatcher, County, Nevada, and we identified this habitat at Mormon Mesa; therefore, the and future section 7 consultations location in our proposal as an area we NDOW has not yet implemented would be attributable to the designation. were considering for exclusion under projects here. Recently, impacts from This site is located 11 km (7 mi) section 4(b)(2) of the Act. the tamarisk leaf beetle in the area has southwest of proposed critical habitat; Our Response: Overton WMA is significantly reduced suitable flycatcher thus, consultation would be required if located in Clark County, Nevada, and is breeding habitat. This area continues to a Federal action occurs and a hydrologic managed by the NDOW. Stretches of be threatened by the overutilization and link is established showing an effect on both the Muddy River and Virgin River trampling of riparian vegetation by the flycatcher or its critical habitat. As run through Overton WMA. Overton livestock, surface and noise disturbance described in paragraphs 570 through WMA encompasses a wide diversity of from recreational activities, and water 571 of the draft economic analysis, we habitats within its 7,146 ha (17,657 ac). resource development. These issues are lack the specific data and models to Approximately 20 percent of lands not addressed by current conservation determine how streamflow in proposed comprising Overton WMA are owned by efforts, minimizing the benefits of critical habitat may be affected. This site the State of Nevada, and 80 percent are excluding the area from critical habitat. is discussed in greater detail in

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paragraphs 587 through 589 of the draft habitat. In the draft economic analysis, Comment (111): A commenter economic analysis. the Service, therefore, should not rely provides a copy of FMC’s Lower Pinal In addition, two of the potential mine on consultations on mining activities Creek Riparian Management and sites identified in exhibit 9–1 of the that were undertaken prior to the Monitoring Plan. This management plan draft economic analysis area are located Gifford Pinchot ruling as evidence of addresses conservation of flycatcher in unoccupied areas where impacts potential future impacts. habitat at FMC’s Miami Mine and would be considered incremental to the Our Response: Prior consultations adjacent land in Gila County, Arizona. designation. The first, located in the provide evidence of the types of project Response: Chapter 9 of the draft Powell Management Unit in Utah, is modifications that may be requested to economic analysis has been revised to listed as an ‘‘occurrence,’’ suggesting it avoid jeopardizing the species. As the reference FMC’s Lower Pinal Creek is not an active mine. The second, Gifford Pinchot court decision did not Riparian Management and Monitoring located in the Santa Clara Management affect the definition of ‘‘jeopardy,’’ the Plan. Unit, was identified as an active sand historical record remains informative. Comment (112): Catron County, New and gravel mine in 2005 by USGS, but The Service’s memorandum in Mexico, is concerned that the critical was not found in the State of Appendix C of the draft economic habitat revision will place unnecessary California’s online database of mines. analysis provides its rational for burden and constraints on proposed Thus, this site may also be inactive. As determining that, in the case of the Arizona Water Settlement Act projects. discussed in paragraph 571 of the draft flycatcher, additional project Specifically, they are concerned about economic analysis, sand and gravel modifications are unlikely in most the implementation of projects to operations do not utilize large volumes circumstances to be requested to avoid improve irrigation ditches and stabilize of surface water and, although they may adverse modification. stream channels along the San Francisco disturb habitat over relatively small Comment (109): One entity River near the Towns of Alma and Luna, areas, are unlikely to pose a major threat representing mining interests states that New Mexico. Catron County is also concerned that historic use of irrigation to the species. the draft economic analysis assesses the Comment (107): One entity water from San Francisco River will be likelihood of future impacts to mining representing mining interests states that prohibited by court order or by cost, and resulting from the designation by the rationale presented in the draft that this is a potential indirect limiting the analysis to mines located economic analysis for why it is difficult unrecognized takings issue. directly within critical habitat. Limiting to predict potential constraints on water Our Response: Projects under the the analysis this way allows the Service use to accommodate flycatcher concerns Arizona Water Settlement Act and other to bolster its determination that the is flawed, and the mere identification of federally funded projects occurring likelihood of future impact to the at-risk commodities is an irrelevant along the San Francisco River will mining industry is low. exercise absent quantification of those require evaluation of not only the impacts. Our Response: Paragraphs 574 flycatcher, but other federally listed Our Response: The Service through 594 of the draft economic species such as loach minnow (Tiaroga respectfully disagrees that potential analysis describe mining operations cobitis) and spikedace (Meda fulgida) effects on water use related to mining located outside of proposed critical under the Act. We have worked operations is predictable and easily habitat that may affect the habitat (see successfully on other stream projects in modeled. As stated in paragraph 571 of summary in exhibit 9–2). this area to minimize impacts to the draft economic analysis, Comment (110): A commenter states federally listed species and also meet hydrological models explaining the that the economic analysis of impacts to project needs. We anticipate that with relationship between groundwater the mining industry is inadequate and the mutual cooperation and pumping and surface water diversions fails to include the Rosemont Mine. The collaboration of stakeholders, action and flycatcher habitat health are not commenter provides information on the agencies, and the Service, the revision readily available. In the absence of such economic importance of the Rosemont of critical habitat will not add models, information about the resources Mine to the State of Arizona. additional burdens. potentially affected is useful to the Our Response: The draft economic Comment (113): The Elephant Butte decisionmaker. Furthermore, as analysis is unable to quantify economic Irrigation District primarily seeks summarized at the end of Chapter 9 of impacts to the mining industry in protection of the water supply it the draft economic analysis, of the Chapter 9 because of the uncertainty administers and the water rights of its identified mines that have previously over how future water withdrawals may members against the effects that could raised concerns about proposed critical affect the flycatcher and its habitat. be imposed under the Act; the District habitat for the flycatcher, all but one are However, the draft economic analysis also seeks protection against any located in areas where section 7 provides qualitative information disruption of their system and seeks consultations would be undertaken due regarding potential impacts to the assurance that the Act will not be used to the presence of the listed species mining industry. Because the Rosemont to gain a higher allocation for absent designated critical habitat. Mine is currently in the permitting environmental water in times of Comment (108): One entity process and is not yet active, it is drought. representing mining interests states that difficult to forecast the potential Our Response: The Elephant Butte the court decision in Gifford Pinchot impacts of critical habitat designation. Irrigation District would be covered Task Force v. United States Fish and The proposed mine site lies under the International Boundary Water Wildlife Service, 378 F.3d 1059 (9th Cir. approximately 48 km (30 mi) southeast Commission’s section 7 biological 2004), amended by 387 F.3d 968 (9th of Tucson along the Santa Rita opinion for the water transaction Cir. 2004), ‘‘raises the bar’’ in terms of Mountains, and is approximately 16 km network that is being developed to the potential impacts of critical habitat (10 mi) west of proposed critical habitat provide water to flycatcher restoration because an activity that does not in Cienega Creek. Chapter 9 of the draft sites. The Service expects only that the jeopardize the species’ continued economic analysis has been revised to obligations within the biological survival nevertheless may be prohibited include information on the Rosemont opinion for their Canalization Project be because it will adversely modify critical Mine. met, and nothing further is expected to

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be required. Our section 7 consultation potential changes in operation and value associated with land set-asides included a conference on critical maintenance of Seven Oaks Dam and that may be required for projects in habitat. In addition, the proposed area maintenance of the Santa Ana River critical habitat; costs of implementing in the Lower Rio Grande is excluded levees. One entity also expressed additional project modifications, such from the final designation (see concern that the costs of consultations as cowbird trapping; and potential time Exclusions). associated with the maintenance of the delay impacts related to the need to Comment (114): A group of entities levees were not included in the draft comply with CEQA requirements. Due state that the economic analysis economic analysis. to a high level of baseline restrictions to incorrectly indicates that Seven Oaks Our Response: With regard to flood development in the floodplain, this Dam is covered under the Western control, the Act does not expect species analysis limits development impacts to Riverside County MSHCP. The entities conservation to take precedence over areas where population density is high, argue that, because the dam does not fall protection of human life or property. and the availability of substitute land is under this MSHCP, the $43 million in For example, section 7(p) of the Act, low. Most of these are urbanized areas estimated impacts to its operations concerning Presidentially declared in California units. In sum, the should be attributed to the incremental disaster areas, allows for emergency estimated impacts to development are rather than baseline scenario. actions to be taken without section 7 approximately $51 million over a 20- Our Response: The final economic consultation in the event of an year period of time, with the most analysis has been revised to clarify that ‘‘emergency situation which does not substantial category of costs being lost operation of Seven Oaks Dam is not allow the ordinary procedures of this land values, totaling over $35 million. covered by the MSHCP. Nonetheless, section to be followed.’’ Likewise, Estimated impacts in the Santa Ana impacts to operations at this dam are routine maintenance required to ensure Management Unit are $18 million, of considered baseline. As the comment the proper functioning of levees would which $13 million are associated with correctly points out, baseline impacts not be prohibited. Therefore, economic land set-asides. The majority of all costs, occur in those areas where flycatcher impacts that potentially could result however, are attributed to the baseline, territories have been detected and where from a catastrophic flood event, such as as flycatcher presence in areas subject to flycatcher presence is well known. loss of life or property value, are not development in the floodplain is well Flycatcher presence is assumed to be quantified because management actions known and critical habitat impacts are well known within the vicinity of Seven to prevent catastrophic flooding are not not expected to differ greatly from those Oaks Dam for the following reasons: (1) expected to be precluded due to expected under the listing alone. Flycatcher territories have been detected designation of critical habitat for the Comment (116): One commenter along the Santa Ana River segment; (2) flycatcher. We have included additional submitted an analysis that identifies and critical habitat for flycatcher was text in the final economic analysis estimates the economic impacts that designated in areas immediately discussing the potential for economic would be incurred in Kern County, upstream of the dam in 2005; (3) San impacts associated with flood control California, if Isabella Reservoir Bernardino Valley Municipal Water activities. Operations were changed to avoid District and Western Municipal Water With regard to a potential loss in adversely modifying proposed critical District’s May 2007 presentation to the water supplies, the final economic habitat for flycatcher. California State Water Resources analysis has been revised to Our Response: The final economic Control Board discusses critical habitat acknowledge the concerns about the analysis now includes, in Chapter 3, a for flycatcher upstream of the dam; (4) potential impact of flycatcher critical summary of the analysis provided by the decision awarding the San habitat on the Supplemental Water the commenter, which acknowledges Bernardino Valley Municipal Water Project at Seven Oaks Dam, recognizing the potential economic impacts of District and Western Municipal Water that impacts could be significant in the changing water operations at Lake District the water rights to implement event that critical habitat precludes the Isabella Reservoir. However, as stated in the Supplemental Water Project development of this project. That said, Chapter 3, due to the known presence specifically includes mitigation there have been multiple court of the flycatcher, extensive consultation measures for flycatcher, as well as an decisions where Federal agencies have history on the species, and existence of explicit statement that ‘‘habitat on the successfully argued that they lack the a completed section 7 consultation for perimeter of the desiccation area will discretion to release water to address the operations at Lake Isabella Reservoir continue to provide habitat for the concerns under the Act. In other cases, in which the Corps purchased nearby endangered southwestern willow courts have upheld the use of off-site property for flycatcher conservation to flycatcher’’; and (5) the agencies are mitigation while allowing USBR to raise reduce and minimize impacts in lieu of required to develop a MSHCP for the the level of the lake above existing modifying its operations, the analysis supplemental water project under the flycatcher habitat. Based on these court finds that the likelihood of future terms of the decision awarding them the decisions, the analysis considers it modifications to Lake Isabella Reservoir water rights. Based on this information, highly unlikely that the designation of Operations to accommodate flycatcher the proposal does not appear to provide critical habitat for the flycatcher will and its habitat is very low. new information about the presence of result in the release of water or the loss Comment (117): Several commenters flycatcher in these areas. Therefore, the of water supplies at Seven Oaks Dam. expressed concern that the economic analysis continues to attribute these Given that the presence of the analysis did not adequately address impacts to the baseline scenario. flycatcher or its critical habitat is not potential impacts of critical habitat Comment (115): A group of expected to affect the availability of designation for flycatcher on operations commenters state that the analysis did water stored at Seven Oaks Dam, future at Elephant Butte Reservoir and planned not fully analyze potential costs lost development due to a lack of activities on the Lower Rio Grande. associated with the loss of local water available water is unlikely. With respect Commenters requested that potential supplies, restricted development, and to development, the draft economic impacts on the Elephant Butte Pilot potential flood damage on the Santa analysis estimates four types of costs to Project, environmental water Ana River. In particular, these potential projects occurring in critical transactions program, and Rio Grande commenters are concerned about habitat: Consultation costs; lost land Canalization project should be

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considered. One commenter states that the species is currently managed for in Conservation Service and the Farm the incremental analysis is incomplete this unit, management actions for the Service Agency. These agencies provide and inaccurate through omission of the flycatcher associated with this unit are funding and technical assistance for direct, indirect, and induced costs considered to be baseline. agriculture-related activities. It is associated with the many effects a Comment (119): Several comments possible that, fearing that receiving critical habitat designation in Elephant state that the economic analysis does Federal funding would potentially Butte Reservoir may have on water not adequately address the impact of require them to bear the burden of operations in New Mexico. flycatcher critical habitat on agricultural maintaining fish habitat, irrigators could Our Response: The draft economic activities. One comment states that the decline participation in Federal analysis in Chapter 3 has been revised economic consequences of reduced programs. Natural Resource to more fully incorporate a discussion water availability for agriculture caused Conservation Service staff state that if about planned and ongoing actions, by critical habitat designation would that were to occur, funds not allocated conservation efforts, and potential cause detrimental impacts to local within proposed critical habitat would impacts at Elephant Butte Reservoir and communities in New Mexico. One likely be reallocated within the State, in the Lower Rio Grande Management commenter states that the economic and the Natural Resource Conservation Unit. analysis does not adequately address the Service questions the assumption that Comment (118): One commenter impacts of critical habitat designation farmers would refuse funding to avoid states that the draft economic analysis on farming operations related to impacts a Federal nexus, particularly as its does not address costs associated with to delay or denial of a Federal loan or awards typically go to farmers who wish releases from Morris Reservoir, which other Federal assistance. Two to promote conservation. As a result, are also necessary for the aquifer commenters state that the economic these potential impacts are not included recharge operations at the San Gabriel analysis fails to address potential in estimated costs. Canyon Spreading Grounds and the San impacts to the San Carlos Irrigation and Comment (120): One commenter Gabriel River unit. The commenter Drainage District. states that the economic analysis is void states that the Watermaster and County Our Response: Chapter 4 of the of any impacts assessment related to documented reasonably foreseeable economic analysis describes and current and projected agricultural, costs associated with the designation of quantifies potential impacts on ranching municipal, and industrial water uses critical habitat for flycatcher in the San activities. A section has been included within the watersheds of each critical Gabriel River unit, which have been in Chapter 3 of the final economic habitat unit. Specifically, the analysis of improperly excluded from the draft analysis to specifically address potential impacts in the Verde Management Unit economic analysis. The draft economic impacts to crop agriculture. As stated in fails to mention any potential impacts analysis may not have considered costs the analysis, irrigators that utilize from municipal water use projects, related to lower volumes of water surface water could be affected by agriculture, and other anticipated associated with restriction on dam critical habitat designation if reservoir residential development in that releases and decreases in instream operations that provide water for watershed. percolation. The draft economic irrigation are modified such that less Our Response: Chapter 3 of the final analysis did not include post-fire and water is available for irrigation. economic analysis has been revised to subsequent periodic sediment removal Reductions in available water to water more directly discuss potential impacts projects at Big Tujunga and Morris districts could result in corresponding to crop agriculture and urban water Reservoirs. reductions in irrigated crop acres for uses. Municipal water projects in the Our Response: While the draft end users, if farmers are unable to Verde Management Unit are specifically economic analysis was correct in stating switch to less water-intensive crops or addressed. that the Santa Fe Dam is the only water find substitute water sources. However, With respect to residential and related management facility within the as stated in Chapter 3, due to the development, section 5.2.3 of the draft proposed critical habitat area along the extensive consultation history on the economic analysis contains a discussion San Gabriel River, the final economic flycatcher allowing for habitat of projected residential development in analysis in Chapter 3 has been revised mitigation in lieu of changing water the Verde Management Unit. to more fully incorporate a discussion operations, the analysis finds that future Specifically, one consultation is forecast about potential impacts to the San modifications to the operations of related to the construction of a Gabriel River system, including reservoirs to avoid adverse modification wastewater treatment plant for the City operations at Cogswell, San Gabriel, and of critical habitat for flycatcher are of Cottonwood. This section also Morris Dam/reservoirs. The previous unlikely. Therefore, the impacts of describes the history of the Verde Valley estimates of costs provided for San critical habitat designation on irrigators Ranch Development at Peck’s Lake, in Gabriel River unit from this commenter are also unlikely as a result of critical an area owned by FMC. The draft were developed for the Santa Ana habitat designation. Instead, the analysis economic analysis concludes that sucker and predicated on the finds that a more likely scenario is that development on this land is not viable, assumption that sediment removal habitat mitigation and other due to a remanded National Pollutant projects at upstream dams would be conservation efforts will be undertaken. Discharge Elimination System permit, precluded. However we have no The expected conservation efforts are and land use objectives of the local evidence to suggest that such measures not expected to affect water deliveries. planning department. would be relevant to the downstream The quantified impacts also do not Comment (121): One commenter proposed critical habitat for the include potential losses in Federal states that the analysis of economic flycatcher. Nonetheless, we have Natural Resource Conservation Service impacts must include all current and included a description of past and and Farm Service Agency funding. potential water withdrawals and land potential future costs associated with Agricultural activities on private lands uses that may affect critical habitat, Santa Ana sucker management may be supported by voluntary regardless of whether they are within activities, as estimated by the Service’s participation in a number of programs critical habitat. The commenter states economic analysis, in this unit. Because sponsored by Federal agencies, that the scope of the economic analysis flycatcher presence is well-known, and including the Natural Resource is limited to the activities occurring

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within the proposed critical habitat, changing operations and maintenance of ‘‘residential and related development though critical habitat can be deemed to facilities (e.g., vegetative clearing activities’’ in Chapter 5 of the economic affect water uses that take many miles schedules). One exception is the San analysis. Costs estimates for these lands from critical habitat. Limiting the scope Luis Rey Flood Control Project, where include administrative costs related to of analysis to certain types of water changes in vegetative clearing activities potential future consultations, as well as management activities occurring within were altered to accommodate flycatcher project modifications that were or immediately adjacent to critical concerns during section 7 consultation estimated on a per consultation basis. habitat dramatically understates the involving critical habitat, which has Comment (124): The Service failed to impact of critical habitat, rendering the resulted in a reduction in flood control consider in its identification of the economic analysis useless in informing capacity of the project from 270 years to economic benefits of excluding areas the decision making. approximately 100 years. However, no economic benefit of maintaining the Our Response: The economic analysis flood damages have resulted from this local water supply and the present must use the best available information change to date, and the Service is levels of flood protection for heavily to assess potential impacts to critical currently in ongoing discussions with populated areas such as Los Angeles habitat designation, whether or not the Corps in an attempt to reach an County. The Service has not consulted those impacts are generated from within agreement that allows the project to the District or stakeholders in Los the designation. The draft economic reach the 270-year flood control Angeles County in its preparation of the analysis does address potential water projection as originally proposed. draft economic analysis of the proposed management issues related to water Further, the Act does not expect species designation. management structures and actions conservation to take precedence over Response: Due to the broad area located upstream of proposed critical protection of human life or property (see included in this critical habitat habitat units (e.g., the San Gabriel River section 7(p) of the Act). designation, some parties were not Unit and Lower Rio Grande Units). Comment (123): Designation of contacted directly. However, through However, because the analysis does not proposed critical habitat for flycatcher mailing lists, press releases, and other anticipate that changes to water may inhibit Metropolitan Water sources, we believe that our outreach operations are likely to occur as a result District’s ability to provide water to its efforts were sufficient. The Service of critical habitat designation for the 26 member agencies by restricting received two comment letters from the flycatcher, few impacts to downstream access to its right-of-ways, including Los Angeles Department of Public users are anticipated. The final access roads that it uses for routine Works and a letter from Metropolitan economic analysis now includes a operations, maintenance, and repairs. Water District of Southern California. discussion of potential impacts to Ongoing projects include replacement Substantial edits were made to the groundwater users in several major and rebuilding of siphon transition economic analysis as a result of these irrigation districts with connections to structures and blow-off valves. and other public comments; we have no proposed critical habitat areas. The final Our Response: The draft economic data indicating that designating critical economic analysis also now includes a analysis in Chapter 3 has been revised habitat would have significant impacts discussion of potential impacts to crop to acknowledge overlap with on human health and safety. irrigation, flood control, and Metropolitan Water District properties Comment (125): The proposed hydropower facilities that have the in the proposed Santa Clara River, Big designation is multi-generational in potential to be affected by critical Tujunga Creek, San Gabriel River, nature, which, according to Circular A– habitat for flycatcher. Waterman Creek, Santa Ana River, and 4, lends itself to a lower discount rate Comment (122): One comment states San Timoteo Creek units. Flycatcher of 1 to 2 percent. that the proposed critical habitat will presence is well-known or the species is Our Response: The commenting entity inhibit public agencies from providing otherwise currently managed for in all is correct that lower discount rates may and maintaining safe passage of of these units, except for Big Tujunga be appropriate where inter-generational perennial and large flood flows through Canyon, which is unoccupied. A impacts are likely to occur. However, communities with large urban previous economic analysis for the we generally do not forecast impacts populations. The economic analysis Santa Ana sucker anticipated that the beyond a 20- to 30-year time period should consider that critical habitat for Metropolitan Water District may prepare (with the exception of four dam projects flycatcher could result in decreased an HCP for that species related to its where baseline costs extend 50 years flood protection from dam operation ongoing operations. While it is unclear into the future). Thus, we apply the and channel maintenance restrictions, whether a permit or Federal nexus OMB’s recommended discount rate of 7 increased channel costs associated with would exist for many Metropolitan percent and test the sensitivity of this mitigation requirements, and efforts, it is possible that a nexus could rate using a rate of 3 percent. constrained construction windows from occur for some actions. To the extent Comment (126): One entity states that nesting season restrictions and lost that Metropolitan expects only to the proposed designation of critical access to water in Los Angeles County. conduct work on existing facilities, habitat threatens the financial viability The commenter states that many reaches those facilities would not be considered of the Cherry Creek Cattle Company in Los Angeles County are within active, critical habitat and would not require operation, which holds a grazing permit engineered, flood protection facilities or conservation efforts. Metropolitan’s on the Dagger Allotment in the Tonto downstream of flood protection dams ability to provide water to its member National Forest. The designation of and reservoirs. agencies is not anticipated to be affected critical habitat is expected to place a Our Response: Chapter 3 of the by critical habitat designation. Impacts significant economic burden on this economic analysis has been revised to related to administrative or other operation. specifically discuss potential impacts of conservation efforts in the Big Tujunga Our Response: The Dagger Allotment critical habitat designation on flood Canyon segment would be attributed to is located on the Salt River within the control projects. In the past, flood the designation of critical habitat. Lands Roosevelt Management Unit and is control projects in flycatcher habitat owned by Metropolitan in the Big considered occupied by the flycatcher. areas have generally resulted in habitat Tujunga segment were included in the Exhibit 2–3 of the draft economic mitigation off-site, rather than in analysis as part of lands conducting analysis identifies this stream segment

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as unlikely to have incremental analysis assumes grazing restrictions reflects new acreage estimates of economic impacts, except for the will be proportional to the acres of each Newhall land ownership and portion of administrative costs to allotment located within proposed management in the Santa Clara address adverse modification in section critical habitat. Additionally, the draft Management Unit with respect to the 7 consultation, as a result of the species economic analysis considers costs to potential for development in that area. occupancy and public awareness. As a grazing entities in the Small Business Please see response to Comment 100 result, all costs associated with Impacts Analysis presented in above for discussion of Newhall Land conservation efforts for grazing activities Appendix A. Pages A–10 through A–13 and Farming areas that were excluded are considered baseline impacts that of the draft economic analysis describe from the final designation of critical result from the listing of the species and the analysis of impacts to small grazing habitat. not the designation of critical habitat. entities. Comment (131): The Foothills-Eastern On page A–9 of the draft economic Comment (129): Two entities state and San Joaquin Hills Transportation analysis, the Small Business Impacts generally that significant economic Corridor Agencies believe that the draft Analysis estimates annualized impacts to grazing and agricultural economic analysis improperly excludes incremental administrative impacts of operations are likely. This comment also the State Road 241 Completion Project approximately $480 per grazing entity. expresses concern that economic from consideration of economic impacts This translates to 1.21 percent of impacts cannot be adequately evaluated resulting from the proposed rule. The average annual revenues per grazing due to uncertainty over the conservation Service’s claim that the project is not entity. efforts likely to be requested following viable is outdated and is based on Comment (127): One entity provides the designation of critical habitat. inaccurate information. As such, the information on the management of Our Response: Sections 2.3 and 4.2 of draft economic analysis should evaluate ranching and agricultural lands on the the draft economic analysis describe the the costs associated with the project privately owned Rancho Temescal. In types of incremental impacts expected modifications and alternatives in the particular, this comment states that to occur following the designation of recent planning documents. Rancho Temescal is in the process of critical habitat. Specifically, the draft Our Response: We have updated the developing a safe harbor agreement with economic analysis considers project discussion of the State Road 241 the Service. This comment also modification costs associated with Completion Project found at paragraphs expresses concern over the regulatory grazing reductions, fencing construction 496 through 498 of the draft economic burden to Rancho Temescal that would and maintenance, and cowbird trapping, analysis to include additional result from the designation of critical and the administrative impacts of information provided by these agencies habitat. section 7 consultation. Pages A–10 regarding their progress towards Our Response: The draft economic through A–13 of the draft economic identifying a viable alternative. In analysis generally estimates costs analysis describe the analysis of impacts addition, we have included in that associated with grazing on Federal lands to small grazing entities. Exhibit A–3 of discussion information provided by only, due to the lack of a Federal nexus the draft economic analysis presents the these agencies regarding the potential for section 7 consultation on private results of the Small Business Impacts cost of future section 7 consultations ranching lands. However, text has been Analysis, which estimates annualized considering the flycatcher and its added describing this pursuit of a safe incremental administrative impacts of habitat. harbor agreement and potential approximately $480 per grazing entity. Comment (132): An estimate of associated costs. This translates to 1.21 percent of impacts associated with the State Road Comment (128): One organization average annual revenues per grazing 241 Completion Project provided states that grazing operations should be entity. previously by the Foothills-Eastern and considered small entities, and the draft Impacts to agricultural operations San Joaquin Hills Transportation economic analysis should estimate the would occur if changes in the Corridor Agencies was inappropriately overall effect on the community of management of water operations affect excluded from the draft economic grazing restrictions. This comment the availability of water for farming analysis based on the assumption that estimates annual economic losses of activities. For additional discussion of the subunit would be excluded from the $2.8 million to Gila County associated such impacts, see our responses to final rule. with preclusion of grazing on six specific comments on water Our Response: The Transportation allotments. management activities, such as Corridor Agencies are correct that the Our Response: Section 4.6 of the draft reservoirs, irrigation districts, Service should estimate the impacts of economic analysis estimates regional groundwater pumping, and flood areas proposed for exclusion from economic impacts associated with control activities. critical habitat designation under grazing restrictions. For the Roosevelt Comment (130): Newhall Land and section 4(b)(2) of the Act in order to Management Unit, where the allotments Farming provided updated information provide information regarding the mentioned by the organization are regarding existing easements and potential avoided costs, or benefits of located, all regional impacts associated preservation agreements, including exclusion. However, in this case, the with grazing restrictions are considered identification of a new area of private Transportation Corridor Agencies’ baseline impacts; that is, these impacts floodplain ownership in proposed information regarding potential costs may occur even absent the designation critical habitat which will be placed in were not excluded from the draft of critical habitat. These baseline a restrictive covenant for floodplain economic analysis because the subunit regional economic impacts are conservation. was considered for exclusion. Rather, as estimated to be $56,000 annually, as Our Response: Section 5.2.3 of the stated in the draft economic analysis shown in exhibit 4–13 of the draft draft economic analysis has been (section 7.5, paragraphs 496 through economic analysis. In contrast to the updated to reflect the addition of 498), costs were not assessed for the analysis provided in the comment, the Newhall’s land holdings to areas Transportation Corridor Agencies’ draft economic analysis does not considered for exclusion in the revised project due to the fact that the project assume that all grazing will be proposed rule (77 FR 41147, July 12, was not considered likely to occur precluded. Instead, the draft economic 2012). The final economic analysis also within the period of the analysis. This

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section has been updated to include forecast these conditions into the future because there are no pipelines, additional information regarding over the time frame of the analysis, distribution facilities, power grid continued efforts to identify and receive recognizing that such projections are stations, and other such energy approval for an alternative route. subject to uncertainty. This baseline infrastructure within the boundaries of Potential costs identified by the projection recognizes that flycatcher the proposed critical habitat areas. This Transportation Corridor Agencies are habitat is already subject to a variety of assertion is not correct because the areas discussed, but are not added to the total Federal, State, and local protections proposed for critical habitat designation impacts in that subunit, due to the regardless of the designation of critical include proposed power lines and three remaining significant uncertainty habitat. hydroelectric power generation stations. regarding the likelihood of the project. Throughout the draft economic The commenter goes on to assert that Comment (133): The draft economic analysis, we provide information about the Service’s proposal to restrict dam analysis fails to use the Tenth Circuit the cost of actions that provide baseline operations will impact water delivery to co-extensive impacts methodology to protection to the habitat. This these hydroelectric facilities; therefore, evaluate the proposed rule’s economic information provides context to the the role of hydroelectric facilities and impacts and instead adopts the decision-maker regarding the regulatory thus impacts to them become more incremental approach for the draft environment, and, in many cases, significant. economic analysis. quantification of the baseline includes Response: As discussed above in Our Response: As described in joint costs benefiting multiple species. previous responses, we do not Chapter 2 of the draft economic For example, baseline efforts include anticipate that flycatcher conservation analysis, we separately estimate both the implementation of multiple-species efforts will result in changes in dam the baseline and incremental costs of HCPs benefiting dozens of listed operations beyond those conservation the proposed rule. The co-extensive species, or the completion of section 7 activities outlined in an incidental take costs of the proposed rulemaking are consultations addressing multiple permit. In the past, such activities have simply the sum of both estimates. The species. While we focus on costs focused on habitat mitigation in lieu of draft economic analysis is therefore in associated specifically with flycatcher, changes to operations. Section A.2 of compliance with the Tenth Circuit many of these joint costs (e.g., the the draft economic analysis specifically Court of Appeals decision per New administrative effort associated with a addresses Executive Order 13211 and Mexico Cattlegrowers Assn. v. U.S. Fish section 7 consultation) are not easily explains that we do not anticipate any and Wildlife Service, 248 F.3d 1277 separable by species. Thus, in order to changes in the timing or amount of (10th Cir. 2001). avoid undercounting costs attributable water spilled at dams with the capacity Comment (134): The draft economic to flycatcher and its habitat, our cost to produce hydropower. Thus, the analysis does not include an evaluation estimates likely include some impacts designation of critical habitat is unlikely of the cumulative impact of multiple that also benefit other species. to affect energy supply. The discussion critical habitat designations, as required Comment (135): Several private of Executive Order 13211 has also been by well-established principals of landowners state that the designation of updated appropriately (see Energy Federal environmental laws such as critical habitat would adversely affect Supply, Distribution, or Use—Executive NEPA. Critical habitat for arroyo toad local communities and successful Order 13211). and thread-leaved brodiaea (Brodiaea ongoing land and wildlife management. Comment (137): The Service’s filifolia) occur in the same area. In The designation of critical habitat has proposal to have dam operations return addition, one commenter stated that the potential to interfere with vested to ‘‘more natural hydrologic regimes’’ although some land owned or water rights in the Salt River watershed, will, if imposed on storm operations, maintained by the San Bernardino undermine existing collaborative result in a return to the significant County Flood Control District may be management efforts, further limit the flooding conditions (which did result in occupied by other Federally listed land base in Gila County, and impose fatalities) that necessitated the species, the extra ‘‘layer’’ of regulation additional economic costs associated construction of the dams in the first associated with the designation of with section 7 consultation, particularly place. This in turn will have a critical habitat for the flycatcher will in the context of livestock grazing significant adverse impact to the create an additional economic burden operations. residents’ quality of life and the region’s for the District to assess and perform Our Response: The draft economic ability to keep jobs at a time when routine maintenance because of analysis addresses impacts to livestock unemployment in Los Angeles County mitigation requirements. grazing in Chapter 4 and impacts on is at 12.5 percent. Further, the Service’s Our Response: The OMB guidelines water rights in Chapter 3. This analysis proposed restrictions on water supply in for best practices concerning the estimates costs associated with grazing the proposed Big Tujunga unit may not conduct of economic analysis of Federal on Federal lands only, due to the lack be possible as the City of Los Angeles’ regulations (Circular A–4) direct of a Federal nexus for section 7 water rights in the Big Tujunga area are agencies to measure the costs of a consultation on private lands. ‘‘pueblo rights,’’ that were granted regulatory action against a baseline, Incremental impacts associated with under international treaty, and the Act which it defines as the ‘‘best assessment section 7 consultation, additional cannot trump international treaties. of the way the world would look absent conservation efforts, and regional Our Response: As discussed above, the proposed action.’’ The baseline economic effects are estimated in this we do not anticipate that flycatcher utilized in the draft economic analysis chapter. Potential impacts associated conservation efforts will result in is the existing state of regulation, prior with the Salt River Project are also changes in dam operations beyond those to the designation of critical habitat, discussed in detail in Chapter 3 of the conservation activities outlined in an which provides protection to the species draft economic analysis. incidental take permit. In the past, such under the Act, as well as under other Comment (136): In its analysis under activities have focused on habitat Federal, State, and local laws and Executive Order 13211, the Service mitigation in lieu of changes to guidelines. To characterize the ‘‘world stated that the proposed critical habitat operations. Furthermore, with regard to without critical habitat,’’ the draft designation will not significantly affect flood control, the Act does not expect economic analysis also endeavors to energy supplies, distribution or use species conservation to take precedence

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over protection of human life or the rule is unlikely to conflict with directly regulated entities, which the property. For example, section 7(p) of mitigation requirements imposed on Service interprets to be Federal the Act, concerning Presidentially flood control projects by the other agencies, which are not small entities declared disaster areas, allows for Federal agencies (see discussion in (see Regulatory Flexibility Act (5 U.S.C. emergency actions to be taken without section 3.2.4 of the final economic 601 et seq.) section below.). Our section 7 consultation in the event of an analysis). analysis goes further, and considers ‘‘emergency situation which does not Comment (139): The Service states impacts to small entities that may be allow the ordinary procedures of this that no regulatory flexibility analysis indirectly affected (e.g., third parties to section to be followed.’’ Likewise, under the Regulatory Flexibility Act (5 section 7 consultations), but only to routine maintenance will not be U.S.C. 601 et seq.) is required if the those entities for which the regulatory prohibited. Therefore, economic proposed critical habitat designation link would be measurably diluted. impacts that potentially could result will not impact a substantial number of Indeed, in response to a similar from a catastrophic flood event, such as small entities (i.e., small businesses, argument to include indirectly regulated loss of life or property value, are not small organizations, and small entities in the analysis of a rule quantified because management actions government jurisdictions). The Service’s promulgated by Environmental to prevent catastrophic flooding are not proposed restrictions on dam operations Protection Agency, the DC District Court expected to be precluded due to and flood protection facility wrote, ‘‘The rule will doubtless have designation of critical habitat for the maintenance have consequences to economic impacts in many sectors of flycatcher. We have included additional communities near and far downstream the economy. But to require an agency text in the final economic analysis of the proposed critical habitat areas in to assess the impact on all of the discussing the potential for economic Los Angeles County. A substantial nation’s small businesses possibly impacts associated with flood control number of small entities depend on the affected by the rule would be to convert activities. flood protection facilities that are every rulemaking process into a massive Furthermore, the Service does not potentially impacted by the proposed exercise in economic modeling, an propose to restrict water supply in the critical habitat designation because they approach we have already rejected. See Big Tujunga subunit. As discussed in get their water supply from the Mid-Tex Elec. Coop., 773 F.2d at 343’’ detail in previous responses, groundwater basins in which the (Cement Kiln Recycling Coalition v. historically, flycatcher concerns have proposed critical habitat areas for Los Environmental Protection Agency, 225 been addressed through mitigation, Angeles County are located. The F. 3d 855, 869 (DC Cir. 2001, at V:50– rather than changes to water operations. Service’s proposal will increase these 52.)). The court limited the analysis to Comment (138): The proposed small entities’ exposure to flood hazards only those small entities to which the designation warrants review and a and their access to their water supply. rule will apply. Thus, the analysis determination of significance by the The Service needs to comply with the presented in Appendix A of the final OMB because: (1) Potential flood Regulatory Flexibility Act and conduct economic analysis complies with the damage to properties in any given year a regulatory flexibility analysis of the Regulatory Flexibility Act. due to the Service’s proposed proposed critical habitat designation. Other Comments Related to the restrictions on dam operations and The analysis should include the Environmental Assessment facility maintenance, combined with the cumulative impact of other Act listings potential loss of groundwater available and critical habitat designations in Los Comment (140): The draft for pumping due to the Service’s Angeles County and in the areas in environmental assessment views proposed pumping restrictions will which the region gets its imported environmental justice impacts only result in significant economic impacts water. The Service also needs to consult through a ‘‘macro lens.’’ Environmental to Los Angeles County; and (2) proposed local flood protection, water supply and justice impacts must be assessed by restrictions on nonnative vegetation business entities, not solely litigious looking at those impacts on us as a removal and maintenance of flood environmental groups, while separate, unique people, and not solely protection facilities do conflict with conducting this analysis. within the context of the entire other Federal agencies’ actions by Response: As discussed in response to designation. conflicting with mitigation requirements prior comments, we do not anticipate Our Response: The environmental imposed by Federal permits issued to that the proposed rule will affect water assessment acknowledges the potential the District and the maintenance operations or flood control capacity. for localized environmental justice activities of the Corps in Big Tujunga Thus, the types of downstream impacts. The potential for economic Wash, Hansen Flood Control basin, San economic impacts contemplated in the impacts that disproportionately affect Gabriel River, and Santa Fe Flood comment are unlikely. low income or minority communities Control Basin. Furthermore, we note that Appendix exists for some activities, to the extent Response: The economic impacts of A of the final economic analysis that there are employment and payroll the proposed critical habitat designation includes an analysis of the potential for impacts of reductions on economic are estimated and reported in the final critical habitat designation to have a activity, and those impacts are economic analysis. The estimate of significant economic impact on a concentrated in the minority or low annualized costs range from less than $1 substantial number of small entities as income communities. As no specific million to $1.7 million. The designation required by the Regulatory Flexibility projects are mandated or authorized by will not result in an annual effect of Act. The appendix discusses the case this designation of critical habitat, and $100 million or more on the economy, law concerning whether indirectly the designation does not directly restrict therefore, this rule is not considered an affected entities (i.e., entities that are land use or land management activities, economically significant rule. We do not not directly subject to the regulation, it is not possible to predict whether anticipate that the flood protection such as the downstream communities such impacts will in fact occur. capabilities of water structures located referenced in this comment) must be However, it is likely that any such in designated critical habitat will be included in the Regulatory Flexibility impacts would be at most minor, in the affected by the regulation for the reasons Act analysis. The case law concludes context of the entire designation, discussed in previous responses. Thus, that the analysis need only include because: (1) The economic impacts

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associated with individual relevant On June 22, 2004, the Service issued a found within the plan boundaries, and projects or actions would be relatively single incidental take permit under determined that implementation of the small; and (2) there would be only a section 10(a)(1)(B) of the Act to 22 plan provides for the conservation of the small number of projects throughout the permittees under the Western Riverside species because it provides for the designation which would create such County MSHCP to be in effect for a conservation of breeding and migration impacts. period of 75 years (Service 2004, entire). flycatcher habitat, the conservation of Comment (141): Impacts based on The Service anticipates the proposed dispersal habitat and adjacent upland biological effects, such as benefits to the actions will affect the flycatcher, areas, surveys for undiscovered flycatcher anticipated under the including the loss of up to 23 percent of populations, and the maintenance and different actions, are not well developed the modeled habitat for this species in potential restoration of suitable habitat in the environmental assessment. For the plan area (Service 2004, p. 227). areas within the conservation area. For example, the document describes areas Within the plan, and through these reasons, critical habitat proposed for exclusion under implementation of the Riparian-Riverine designation would not lead to Alternative B that have some type of Areas and Vernal Pools policy, we incremental effects on habitat conservation or management plan to anticipate no loss of occupied flycatcher management in these areas of concern protect habitat, but there is no habitat or areas otherwise determined to by the District. However, because of the discussion as to why designating critical have long-term conservation value for WRC MSHCP, these areas have been habitat in these habitat areas would the species (Service 2004, p. 227). We excluded from the final critical habitat provide any additional benefit to the concluded in our biological opinion designation (see Exclusions). species or its habitat. (Service 2004, p. 227) that Comment (143): Table 3.4 of the Our Response: The analysis implementation of the plan, as environmental assessment does not associated with evaluating exclusions proposed, was not likely to jeopardize include the federally listed Santa Ana under section 4(b)(2) of the Act, is the continued existence of the River woolly-star (Eriastrum appropriately included within this final flycatcher. Our determination was based densifolium ssp. sanctorum). The rule, rather than a NEPA document. on our conclusion that based on the low proposed critical habitat within the Areas that were considered for level of impact anticipated to Santa Ana River floodplain could result exclusion were locations where the individuals of this species and because in habitat management decisions in benefits of exclusion may outweigh the the impacts associated with loss of the favor of riparian flycatcher habitat, but benefits of inclusion as critical habitat flycatcher’s modeled habitat, when to the detriment of alluvial fan sage (see Exclusion section above). In each viewed in conjunction with the scrub species and the Santa Ana River exclusion analysis included within this protection and management of the woolly-star (Eriastrum densifolium ssp. final rule, we considered a range of MSHCP Conservation Area, are not sanctorum) conservation objectives of possible benefits of inclusion and anticipated to result in an appreciable the Western Riverside County MSHCP. exclusion, and weighed the benefits of reduction in the numbers, reproduction, Our Response: The river processes each in order to determine whether or or distribution of this subspecies that encourage native plant growth and not any particular area will be excluded. throughout its range (Service 2004, p. succession for flycatchers would be Benefits of including an area as critical 227). expected to benefit other native plants habitat are largely derived from the Species-specific flycatcher and wildlife as well. As a result, there regulatory benefits associated with the conservation objectives are included in should not be a conflict between requirements of Federal agencies to the Western Riverside County MSHCP. conservation needs of the different consult with the Service for any actions The MSHCP Conservation Area will species. For example, riparian areas are that may affect the designated critical include at least 4,282 ha (10,580 ac) of dynamic systems, and there are open habitat. flycatcher habitat (breeding and spaces along rivers with soil types Comment (142): The designation of migration habitat) including six core which are not conducive to dense critical habitat within existing flood areas of high-quality habitat and woody plant growth for flycatchers that control facilities would result in interconnecting linkages, including are more appropriate for other types of potential risks to public health and essential segments of the Santa Ana plants, such as sage scrub species or the safety. The proposed critical habitat River, San Timoteo Creek, and woolly-star. Side tributaries with open would likely delay, if not compromise, Temecula Creek (including Vail Lake). washes (wide stream channels without the Riverside County Flood Control and The plan aims to conserve 100 percent regular flow) that may be more Water Conservation District’s ability to of breeding habitat for the flycatcher, conducive to other species are not maintain existing flood control including buffer areas 100 m (328 ft) within our designation of flycatcher facilities. Federal funding related to adjacent to breeding areas. In addition, critical habitat, with the exception of flood control facility repairs could be the Western Riverside County MSHCP areas immediately at the confluence. significantly delayed as well. If flood requires compliance with a Riparian Comment (144): The analysis of control facilities are not properly and Riverine Areas and Vernal Pool Alternative A is based only on maintained or repaired when damaged, policy that contains provisions additional stream segments, as public health and safety could be put at requiring 100 percent avoidance and compared to 2005 designation. This risk. These potential impacts have not long-term management and protection approach may underestimate adverse been addressed in the environmental of breeding habitat not included in the impacts of Alternative A. assessment. conservation areas, unless a Biologically Our Response: The No Action Our Response: The channel Equivalent or Superior Preservation Alternative consists of areas designated maintenance activities described in the Determination can demonstrate that a in 2005. This comports with the District’s letter are covered activities proposed alternative will provide equal requirements under NEPA to analyze within a long-term maintenance or greater conservation benefits than the impacts as if none of the proposed agreement that is currently being avoidance. actions were taken. Alternative A is finalized between the CDFG and the The Service completed an internal defined as the addition of newly District, as part of the implementation of consultation on the effects of the plan proposed critical habitat segments, and the Western Riverside County MSHCP. on the flycatcher and its habitat that is the analysis consists of the incremental

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impact of designating those segments. (FEMA) flood hazard area and required comply with floodplain management The sections on cumulative impacts to purchase flood insurance policies for requirements. consider the impacts of these segments federally secured mortgages. The Our Response: For reasons describe when added to those of past, present, potential flood insurance cost should be above in response to Comment 147, the and reasonably foreseeable future estimated and included in the analysis Service does not expect such remapping actions. of Alternative A. The flood insurance to occur as a result of critical habitat Comment (145): The environmental cost burden within low-income areas designation. assessment appears to be based on the protected by the levees could be Comment (148): The Service must incorrect assumption that suitable or especially severe. evaluate the air quality and greenhouse occupied flycatcher habitat occurs Our Response: The Service believes gas emissions and climate change across the entirety of mapped that the flood control rating for the impacts that may be caused by a critical floodplains and recovery Management levees would not be affected by the habitat designation. Units, and that section 7 consultations designation based on past conservation Response: The designation of critical would currently be required within the efforts and consultation outcomes (see habitat does not affect land ownership entire mapped floodplains and our response to Comment 101 for more or establish a refuge, wilderness, Management Units. Most floodplains explanation). In addition, Service policy reserve, preserve, or other conservation and Management Units (e.g., Santa Ana and precedent demonstrate that areas. The Service must use the best River) include various habitat types maintenance activities necessary to scientific and commercial information such as unvegetated, open channel areas protect against the loss of life or available; we do not believe that critical and areas that are not known to be property are not precluded by the Act. habitat will cause impacts to air quality occupied. If included in the critical The Act does not expect species or changes to greenhouse gas emissions. habitat, these areas would be subject to conservation to take precedence over section 7 consultations, further protection of human life or property. Required Determinations unnecessarily delaying critical flood For example, section 7(p) of the Act, Regulatory Planning and Review control maintenance activities. concerning Presidentially declared (Executive Orders 12866 and 13563) Our Response: The environmental disaster areas, allows for emergency assessment analyzes impacts based on actions to be taken without section 7 Executive Order 12866 provides that the methodology, assumptions, and consultation in the event of an the Office of Information and Regulatory definitions of critical habitat found in ‘‘emergency situation which does not Affairs (OIRA) will review all significant the August 15, 2011, proposed rule (76 allow the ordinary procedures of this rules. The Office of Information and FR 50542, pp. 50553–50558). This section to be followed.’’ Regulatory Affairs has determined that section includes discussion of migratory Examining the section 7 consultation this rule is significant. habitat, lateral extent, and mapping, as history for the Santa Ana sucker, for Executive Order 13563 reaffirms the they relate to coverage of areas within example, related to flood control principles of E.O. 12866 while calling each management unit. operations at Cogswell Dam shows that for improvements in the nation’s Comment (146): Section 3.6.2.3 of the flood protection projects (e.g., sediment regulatory system to promote environmental assessment incorrectly control) have been allowed to continue predictability, to reduce uncertainty, concludes that Alternative B impacts even when critical habitat was and to use the best, most innovative, would be similar to Alternative A. designated for the sucker at that and least burdensome tools for Alternative B would result in the location. Thus, economic impacts that achieving regulatory ends. The exclusion of the existing Santa Ana potentially could result from a executive order directs agencies to River Levee system from critical habitat catastrophic flood event, such as loss of consider regulatory approaches that and avoid the adverse impacts that a life or property value, are not reduce burdens and maintain flexibility critical habitat designation would likely quantified, because management actions and freedom of choice for the public have upon the levees. The to prevent catastrophic flooding are not where these approaches are relevant, environmental assessment should expected to be precluded due to feasible, and consistent with regulatory accurately describe the full extent of the designation of critical habitat for the objectives. E.O. 13563 emphasizes reduced potential adverse impacts flycatcher. As such, while some costs further that regulations must be based provided by Alternative B. may be incurred to complete section 7 on the best available science and that Also, section 3.12.2.2 of the consultations, the functioning of the the rulemaking process must allow for environmental assessment does not levee system is unlikely to be affected public participation and an open address all the potential adverse by the presence of the flycatcher or exchange of ideas. We have developed socioeconomic consequences of designated critical habitat, and, this rule in a manner consistent with Alternative A, which would not exclude therefore, flood insurance premiums these requirements. any of the proposed critical habitat should not change. units. Alternative A would include the Comment (147): Section 3.13.2 of the Regulatory Flexibility Act (5 U.S.C. 601 existing Santa Ana River Levee system environmental assessment does not et seq.) in the critical habitat area. This would address the potential adverse Under the Regulatory Flexibility Act result in possible delays in permits for environmental justice impacts of (RFA; 5 U.S.C. 601 et seq.), as amended levee maintenance activities as well as Alternative A. The potential remapping by the Small Business Regulatory section 7 conservation measures to of existing developed areas behind the Enforcement Fairness Act (SBREFA) of provide riparian vegetation conflicting Santa Ana River Levees as flood hazard 1996 (5 U.S.C 801 et seq.), whenever an with Federal levee certification and areas could adversely impact low agency must publish a notice of maintenance requirements. As a result, income or minority communities. In rulemaking for any proposed or final the levees may be decertified and addition to public health and safety rule, it must prepare and make available approximately 1,300 ha (3,300 ac) of concerns, a remapped floodplain would for public comment a regulatory land (approximately 10,000 residents) increase flood insurance costs and the flexibility analysis that describes the would be remapped and placed in a residential and commercial construction effects of the rule on small entities Federal Emergency Management Agency costs to flood-proof structures and (small businesses, small organizations,

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and small government jurisdictions). circumstances, especially with critical annualized incremental impacts ranging However, no regulatory flexibility habitat designations of limited extent, from $930 to $5,800; however, due to analysis is required if the head of an we may aggregate across all industries the lack of flycatcher habitat or ability agency certifies the rule will not have a and consider whether the total number to establish flycatcher habitat, we have significant economic impact on a of small entities affected is substantial. removed the Luna Lake portion of the substantial number of small entities. In estimating the number of small San Francisco River from critical habitat The SBREFA amended the RFA to entities potentially affected, we also designation (see Summary of Changes require Federal agencies to provide a consider whether their activities have from Proposed Rule above). Therefore, certification statement of the factual any Federal involvement. we anticipate no impacts to this entity basis for certifying that the rule will not Designation of critical habitat only from the critical habitat designation. have a significant economic impact on affects activities authorized, funded, or Livestock Grazing a substantial number of small entities. carried out by Federal agencies. Some In this final rule, we are certifying that kinds of activities are unlikely to have Across the areas proposed as critical the critical habitat designation for the any Federal involvement and so will not habitat, 554 businesses are engaged in flycatcher will not have a significant be affected by critical habitat the beef cattle ranching and farming economic impact on a substantial designation. In areas where the species industry. Of these, 517 or 93 percent, number of small entities. The following is present, Federal agencies already are have annual revenues at or below the discussion explains our rationale. required to consult with us under small business threshold of $750,000, According to the Small Business section 7 of the Act on activities they and thus are considered small. Administration, small entities include authorize, fund, or carry out that may The analysis forecasts a total of three small organizations, such as affect the flycatcher. Federal agencies incremental formal section 7 independent nonprofit organizations; also must consult with us if their consultations; therefore, we assume small governmental jurisdictions, activities may affect critical habitat. three small entities may incur project including school boards and city and Designation of critical habitat, therefore, modification costs as a result of critical town governments that serve fewer than could result in an additional economic habitat designation. These three small 50,000 residents; as well as small impact on small entities due to the entities represent approximately 0.49 businesses. Small businesses include requirement to reinitiate consultation percent of small grazers across the study manufacturing and mining concerns for ongoing Federal activities (see area. A further 29 entities may incur with fewer than 500 employees, Application of the ‘‘Adverse some minor administrative costs wholesale trade entities with fewer than Modification’’ Standard section). associated with informal consultations 100 employees, retail and service In our final economic analysis of the and technical assistance efforts. These businesses with less than $5 million in critical habitat designation, we 29 entities represent approximately 5.6 annual sales, general and heavy evaluated the potential economic effects percent of small grazing entities across construction businesses with less than on small business entities resulting from the study area. $27.5 million in annual business, conservation actions related to the We estimate total annualized impacts special trade contractors doing less than listing of the flycatcher and the to the three entities that may incur $11.5 million in annual business, and designation of critical habitat. The project modification costs of $3,000 to agricultural businesses with annual analysis is based on the estimated $5,300, or $1,000 to $1,800 per entity. sales less than $750,000. To determine impacts associated with the rulemaking Assuming each has annual revenues of if potential economic impacts on these as described in Chapters 3 through 10 $39,800, these annualized impacts per small entities are significant, we and Appendix A of the analysis and small entity are expected to range from consider the types of activities that evaluates the potential for economic 2.51 percent to 4.52 percent of annual might trigger regulatory impacts under impacts related to: (1) Water revenues. The remaining 29 entities are this rule, as well as the types of project management; (2) livestock grazing; (3) expected to incur approximately modifications that may result. In residential and related development; (4) $14,000 in annualized administrative general, the term ‘‘significant economic tribes; (5) transportation; (6) mining, oil, costs, or $480 per entity. Assuming each impact’’ is meant to apply to a typical and gas development; and (7) recreation. company has annual revenues of small business firm’s business Water Management $39,800, annualized impacts per small operations. entity are estimated at 1.21 percent of To determine if the rule could Within areas proposed as critical annual revenues. Therefore, we find that significantly affect a substantial number habitat, approximately 1,599 businesses the designation of critical habitat will of small entities, we consider the are engaged in the water supply and not impact a significant number of number of small entities affected within irrigation industry. Of these, 1,350 or 84 entities in this sector or have a particular types of economic activities percent have annual revenues at or substantial impact on those potentially (e.g., water management, livestock below the small business threshold of affected. grazing, residential and related $7.0 million, and thus are considered development, oil and gas development, small entities. Only one of the dams Residential and Related Development and transportation). We apply the expected to incur incremental impacts Across the areas proposed as critical ‘‘substantial number’’ test individually is not operated by the Federal habitat, 77,348 businesses are engaged to each industry to determine if Government. The Luna Dam in the San in residential and related development. certification is appropriate. However, Francisco Management Unit is owned Of these, 76,516 or nearly 99 percent the SBREFA does not explicitly define by the Luna Irrigation Company. have annual revenues at or below the ‘‘substantial number’’ or ‘‘significant Because revenue information is not relevant small business thresholds for economic impact.’’ Consequently, to publicly available for this company, we their respective North American assess whether a ‘‘substantial number’’ conservatively assume that it is small. Industry Classification System (NAICS) of small entities is affected by this This small entity represents codes, and thus are considered small. designation, this analysis considers the approximately 0.08 percent of the total We assume that one small developer relative number of small entities likely number of small entities. Luna Irrigation will incur costs associated with land set to be impacted in an area. In some Company could be expected to incur asides, time delays, other project

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modification, and administrative parent company of Asarco, Inc., agencies. Under this interpretation, activities as a result of critical habitat employed 23,931 people in 2010. there is no requirement under the RFA designation. This small developer Rosemont Copper anticipates employing to evaluate the potential impacts to represents less than 0.01 percent of up to 444 people directly at the entities not directly regulated, such as small developers across the study area. Rosemont Mine. As of 2011, the parent small businesses. However, Executive The analysis forecasts an additional six company of Rosemont Copper, Augusta Orders 12866 and 13563 direct Federal informal consultations and technical Resource Corporation, employed a total agencies to assess costs and benefits of assistance efforts that are not expected of 56 people throughout Canada and the available regulatory alternatives in to incur land value losses. The six small United States. Therefore, it is unlikely quantitative (to the extent feasible) and entities assumed to participate in these that Augusta Resource Corporation will qualitative terms. Consequently, it is the consultations represent less than 0.01 employ fewer than 500 people following current practice of the Service to assess percent of small developers across the construction of the Rosemont Mine. study area. Across the areas proposed as critical to the extent practicable these potential We estimate total economic impacts habitat, 393 businesses are engaged in impacts if sufficient data are available, of $200,000 to the one small entity that the oil and gas industry. A total of 15 whether or not this analysis is believed may incur costs associated with changes oil and gas companies are located by the Service to be strictly required by to its projects. Assuming the average within La Plata County, Colorado, and the RFA. In other words, while the small entity has annual revenues of San Juan County, Utah, and may be effects analysis required under the RFA approximately $3.5 million, these affected by critical habitat. Of these 15 is limited to entities directly regulated annualized impacts per small entity companies, 11 entities, or by the rulemaking, the effects analysis represent approximately 5.7 percent of approximately 73 percent, employ fewer under the Act, consistent with the EO annual revenues. The remaining six than 500 employees, and thus, are regulatory analysis requirements, can entities are expected to incur considered small. take into consideration impacts to both approximately $11,000 in annualized The analysis forecasts a total of seven directly and indirectly impacted administrative costs, or $1,800 per formal and informal section 7 entities, where practicable and entity. Assuming each company has consultations. Therefore, we assume reasonable. annual revenues of $3.5 million, that seven small oil and gas companies annualized impacts per small entity incur costs incremental administrative In doing so, we focus on the specific represent approximately 0.05 percent of costs associated with section 7 areas being designated as critical habitat annual revenues. Therefore, we find that consultation. These seven small entities and compare the number of small the designation of critical habitat will may incur total administrative costs of business entities potentially affected in not impact a significant number of $200, or $28 per entity. Assuming the that area with other small business entities in this sector or have a average small entity has annual entities in the region, instead of substantial impact on those potentially revenues of approximately $2.2 million, comparing the entities in the area of affected. these annualized impacts per small designation with entities nationally, entity represent less than 0.01 percent of which is more commonly done. This Transportation annual revenues, and, therefore, not analysis results in an estimation of a Impacts to transportation activities are considered a significant impact. higher number of small businesses expected to be incurred largely by Recreation potentially affected. If we were to Federal and State agencies. These calculate that value based on the We examined potential impacts to entities are not considered small. proportion nationally, then our estimate recreational activities, such as hiking, However, the analysis forecasts some would be significantly lower. Following administrative costs associated with camping, picnicking, fishing, hunting, our evaluation of potential effects to roads that may be managed by county or boating, river rafting, and ORV use, and small business entities from this city governments. The analysis forecasts did not forecast any incremental informal and technical assistance efforts impacts; therefore, no incremental rulemaking, we conclude that the in four counties out of the 49 counties impacts to small entities are anticipated. number of potentially affected small in the study area. Of these counties, 3 The Service’s current understanding businesses is not substantial. counties or 75 percent have populations of recent case law is that Federal In summary, we have considered falling below 50,000, and, therefore, are agencies are only required to evaluate whether this revised designation will considered small. Third-party the potential impacts of rulemaking on result in a significant economic effect on administrative costs for these three those entities directly regulated by the a substantial number of small entities. counties total $8,300 on an annualized rulemaking; therefore, they are not Given that this final rule excludes basis. These impacts represent between required to evaluate the potential 1270.4 km (789.6 mi) of stream 0 and 0.06 percent of the respective impacts to those entities not directly segments from final designation, the county’s annual revenues, and, regulated. The designation of critical costs of the critical habitat designation habitat for an endangered or threatened therefore, not considered a significant will likely be even lower. Based on the species only has a regulatory effect impact. above reasoning and currently available where a Federal action agency is Mining, Oil, and Gas Development involved in a particular action that may information, we concluded that this rule We do not forecast incremental affect the designated critical habitat. will not result in a significant economic impacts to mining activities. Moreover, Under these circumstances, only the impact on a substantial number of small the known mining companies pursuing Federal action agency is directly entities. Therefore, we are affirming our activities in the vicinity of critical regulated by the designation, and, certification that the designation of habitat are not small entities. To be therefore, consistent with the Service’s critical habitat for the flycatcher will not considered a small entity in this current interpretation of RFA and recent have a significant economic impact on industry, companies must employ fewer case law, the Service may limit its a substantial number of small entities, than 500 people. FMC employs more evaluation of the potential impacts to and a regulatory flexibility analysis is than 29,700 people. Grupo Mexico, the those identified for Federal action not required.

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Energy Supply, Distribution, or Use— (1) This rule will not produce a in a voluntary Federal aid program, the Executive Order 13211 Federal mandate. In general, a Federal Unfunded Mandates Reform Act would Executive Order 13211 (Actions mandate is a provision in legislation, not apply, nor would critical habitat Concerning Regulations That statute, or regulation that would impose shift the costs of the large entitlement Significantly Affect Energy Supply, an enforceable duty upon State, local, or programs listed above onto State Distribution, or Use) requires agencies tribal governments, or the private sector, governments. (2) We do not believe that this rule to prepare Statements of Energy Effects and includes both ‘‘Federal will significantly or uniquely affect when undertaking certain actions. The intergovernmental mandates’’ and small governments because it would not Office of Management and Budget ‘‘Federal private sector mandates.’’ These terms are defined in 2 U.S.C. produce a Federal mandate of $100 (OMB) has provided guidance for million or greater in any year; that is, it implementing this Executive Order that 658(5)–(7). ‘‘Federal intergovernmental mandate’’ includes a regulation that is not a ‘‘significant regulatory action’’ outlines nine outcomes that may under the Unfunded Mandates Reform constitute ‘‘a significant adverse effect’’ ‘‘would impose an enforceable duty upon State, local, or tribal governments’’ Act. The FEA concludes incremental when compared to not taking the impacts may occur due to regulatory action under consideration. with two exceptions. It excludes ‘‘a condition of Federal assistance.’’ It also administrative costs of section 7 Some dams within the flycatcher consultations for water management, proposed critical habitat area have excludes ‘‘a duty arising from participation in a voluntary Federal livestock grazing, residential and related installed hydroelectric capacity; development, tribal, transportation, however, the conclusion found in our program,’’ unless the regulation ‘‘relates to a then-existing Federal program mining, oil, and gas development, and economic analysis does not forecast any recreation projects; however, these are changes to the timing or amount of under which $500,000,000 or more is provided annually to State, local, and not expected to significantly affect small water spilled at these dams. governments. Incremental impacts With respect to potential impacts to tribal governments under entitlement authority,’’ if the provision would stemming from various species the oil and gas development industry, conservation and development control representatives express concern that ‘‘increase the stringency of conditions of assistance’’ or ‘‘place caps upon, or activities are expected to be borne by development activity in La Plata the Federal Government, State agencies, County, Colorado, and San Juan County, otherwise decrease, the Federal Government’s responsibility to provide with some effects to water and livestock Utah, will be subject to section 7 grazing operators, and land, oil, and gas consultation as a result of the funding,’’ and the State, local, or tribal governments ‘‘lack authority’’ to adjust developers, which are not considered designation. They estimate additional small governments. The designation of per project costs of $20,000, and accordingly. At the time of enactment, these entitlement programs were: critical habitat imposes no obligations potential time delays, associated with on State or local governments. By the consultation activity. Total energy Medicaid; Aid to Families with Dependent Children work programs; definition, Federal agencies are not production from natural gas wells in considered small entities, although the these counties totaled 433 million Mcf Child Nutrition; Food Stamps; Social Services Block Grants; Vocational activities they fund or permit may be (1 Mcf = one thousand cubic feet) in proposed or carried out by small 2010, or approximately 1.6 percent of Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent entities. Consequently, we do not the 26.86 billion Mcf produced in the believe that the critical habitat Living; Family Support Welfare United States in the same year. designation will significantly or Services; and Child Support Based on the protections already uniquely affect small government Enforcement. ‘‘Federal private sector afforded riparian habitat, we project entities. As such, a Small Government mandate’’ includes a regulation that only seven formal and information Agency Plan is not required. consultations over the timeframe for the ‘‘would impose an enforceable duty analysis. Because total present value upon the private sector, except (i) a Takings—Executive Order 12630 incremental administrative costs are condition of Federal assistance or (ii) a In accordance with Executive Order $11,000 over 20 years, costs associated duty arising from participation in a 12630 (Government Actions and with section 7 consultation are unlikely voluntary Federal program.’’ Interference with Constitutionally to increase the cost of energy production The designation of critical habitat Protected Private Property Rights), we in the United States in excess of 1 does not impose a legally binding duty have analyzed the potential takings percent. on non-Federal Government entities or implications of designating critical The economic analysis finds that private parties. Under the Act, the only habitat for the flycatcher in a takings energy-related impacts associated with regulatory effect is that Federal agencies implications assessment. As discussed flycatcher conservation activities within must ensure that their actions do not above, the designation of critical habitat critical habitat are not expected destroy or adversely modify critical affects only Federal actions. Although (Industrial Economics, Inc. 2012, pp. A– habitat under section 7. While non- private parties that receive Federal 17–A18). As such, the designation of Federal entities that receive Federal funding, assistance, or require approval critical habitat is not expected to funding, assistance, or permits, or that or authorization from a Federal agency significantly affect energy supplies, otherwise require approval or for an action may be indirectly impacted distribution, or use. Therefore, this authorization from a Federal agency for by the designation of critical habitat, the action is not a significant energy action, an action, may be indirectly impacted legally binding duty to avoid and no Statement of Energy Effects is by the designation of critical habitat, the destruction or adverse modification of required. legally binding duty to avoid critical habitat rests squarely on the destruction or adverse modification of Federal agency. The takings Unfunded Mandates Reform Act (2 critical habitat rests squarely on the implications assessment concludes that U.S.C. 1501 et seq.) Federal agency. Furthermore, to the this designation of critical habitat for In accordance with the Unfunded extent that non-Federal entities are the flycatcher does not pose significant Mandates Reform Act (2 U.S.C. 1501 et indirectly impacted because they takings implications for lands within or seq.), we make the following findings: receive Federal assistance or participate affected by the designation.

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Federalism—Executive Order 13132 3(b)(2) of the Order. We are designating a review of public comments we In accordance with Executive Order critical habitat in accordance with the received on the August 15, 2011, 13132 (Federalism), this rule does not provisions of the Act. This final rule proposed rule (76 FR 50542). We analyzed the potential impacts of have significant Federalism effects. A uses standard property descriptions and critical habitat designation on the federalism impact summary statement is identifies the elements of physical or following resources and resource not required. In keeping with biological features essential to the management types: Land use and Department of the Interior and conservation of the flycatcher within the management; fish, wildlife, and plants Department of Commerce policy, we designated areas to assist the public in (including endangered and threatened requested information from, and understanding the habitat needs of the species. species); fire management; water coordinated development of, this resources (including water management critical habitat designation with Paperwork Reduction Act of 1995 (44 projects and groundwater pumping); appropriate State resource agencies in U.S.C. 3501 et seq.) livestock grazing; construction and California, Arizona, Nevada, Utah, This rule does not contain any new development; tribal trust resources; soils Colorado, and New Mexico. We collections of information that require and mineral resources; recreation; received comments from state wildlife approval by OMB under the Paperwork socioeconomics; and environmental agencies of Arizona, Nevada, Arizona, Reduction Act of 1995 (44 U.S.C. 3501 justice. We found that the designation of and Colorado. We also received et seq.). This rule will not impose critical habitat for the flycatcher would comments from The State of Utah’s recordkeeping or reporting requirements not have direct impacts on the Governor’s office. We have addressed on State or local governments, environment as designation is not them in the Summary of Comments and individuals, businesses, or expected to impose land use restrictions Recommendations section of the rule. organizations. An agency may not or prohibit land use activities. However, The designation of critical habitat in conduct or sponsor, and a person is not the designation of critical habitat could: areas currently occupied by the required to respond to, a collection of (1) Increase the number of additional flycatcher may impose nominal information unless it displays a section 7 consultations for proposed additional regulatory restrictions to currently valid OMB control number. projects within designated critical those currently in place and, therefore, habitat; (2) increase the number of may have little incremental impact on National Environmental Policy Act (42 U.S.C. 4321 et seq.) reinitiated section 7 consultations for State and local governments and their ongoing projects within designated activities. The designation may have It is our position that, outside the critical habitat; (3) maintain the some benefit to these governments in jurisdiction of the U.S. Court of Appeals flycatcher’s primary constituent that the areas that contain the physical for the Tenth Circuit, we do not need to elements; (4) increase the likelihood of or biological features essential to the prepare environmental analyses greater expenditures of time and Federal conservation of the species are more pursuant to the National Environmental funds to develop measures to prevent clearly defined, and the elements of the Policy Act (NEPA; 42 U.S.C. 4321 et both adverse effects to the species and features of the habitat necessary to the seq.) in connection with designating adverse modification to critical habitat; conservation of the species are critical habitat under the Act. We and (5) indirectly increase the specifically identified. This information published a notice outlining our reasons likelihood of greater expenditure of non- does not alter where and what federally for this determination in the Federal Federal funds by project proponents to sponsored activities may occur. Register on October 25, 1983 (48 FR complete section 7 consultations and to However, it may assist local 49244). This position was upheld by the develop reasonable and prudent governments in long-range planning U.S. Court of Appeals for the Ninth alternatives (to avoid adverse (rather than having them wait for case- Circuit (Douglas County v. Babbitt, 48 modification of critical habitat by by-case section 7 consultations to F.3d 1495 (9th Cir. 1995), cert. denied Federal agencies) that maintain critical occur). 516 U.S. 1042 (1996)). However, when habitat. Such an increase might occur Where State and local governments the range of the species includes States where there is a Federal nexus to require approval or authorization from a within the Tenth Circuit, such as that of actions within areas with no known Federal agency for actions that may flycatcher, under the Tenth Circuit flycatcher territories, or from the affect critical habitat, consultation ruling in Catron County Board of addition of adverse modification under section 7(a)(2) will be required. Commissioners v. U.S. Fish and Wildlife analyses to jeopardy consultations in While non-Federal entities that receive Service, 75 F.3d 1429 (10th Cir. 1996), known flycatcher habitat. Federal funding, assistance, or permits, we prepare an environmental The primary purpose of preparing an or that otherwise require approval or assessment. environmental assessment under NEPA authorization from a Federal agency for We prepared a draft environmental is to determine whether a proposed an action, may be indirectly impacted assessment for flycatcher critical habitat action would have significant impacts by the designation of critical habitat, the designation and notified the public of on the human environment. If legally binding duty to avoid its availability in the Federal Register significant impacts may result from a destruction or adverse modification of on July 12, 2012 (77 FR 41147). We also proposed action, then an environmental critical habitat rests squarely on the accepted public comments on the draft impact statement is required (40 CFR Federal agency. environmental assessment and made 1502.3). Whether a proposed action revisions in response to many of those exceeds a threshold of significance is Civil Justice Reform—Executive Order comments (see Summary of Comment determined by analyzing the context 12988 and Recommendations above). In and the intensity of the proposed action In accordance with Executive Order preparing the environmental (40 CFR 1508.27). Our environmental 12988 (Civil Justice Reform), the Office assessment, we also considered the assessment found that the impacts of the of the Solicitor has determined that the previous critical habitat designation in proposed critical habitat designation rule does not unduly burden the judicial 2005, internal scoping within the would be minor and not rise to a system and that it meets the applicable Service, a review of the previous significant level, so preparation of an standards set forth in sections 3(a) and consultation history of the species, and environmental impact statement is not

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required. Copies of our final Mexico included in the proposed from the Arizona Ecological Services environmental assessment and Finding designation of flycatcher critical habitat. Office (see FOR FURTHER INFORMATION of No Significant Impact can be found At the end of the 2007 flycatcher CONTACT). at http://www.fws.gov/southwest/es/ breeding season, 5 percent of all known Authors arizona, http://www.regulations.gov at breeding sites were administered by Docket No. FWS–R2–ES–2011–0053, Native American Tribes (Durst et al. The primary authors of this and at the Arizona Ecological Services 2007, p. 17). Using the criteria found in rulemaking are the staff members of the Office (see FOR FURTHER INFORMATION the Criteria Used To Identify Critical Arizona Ecological Services Office. CONTACT). Habitat section, we determined that all of the areas proposed for designation on List of Subjects in 50 CFR Part 17 Government-to-Government tribal lands were essential to flycatcher Relationship with Tribes Endangered and threatened species, conservation. We sought government-to- Exports, Imports, Reporting and In accordance with the President’s government consultation with these recordkeeping requirements, memorandum of April 29, 1994 tribes throughout the proposal and Transportation. (Government-to-Government Relations development of this final designation of with Native American Tribal flycatcher critical habitat, and we spoke Regulation Promulgation Governments; 59 FR 22951), Executive to tribal representatives at conferences, Accordingly, we amend part 17, Order 13175 (Consultation and meetings, and public hearings about the subchapter B of chapter I, title 50 of the Coordination With Indian Tribal designation. We communicated with Code of Federal Regulations, as set forth Governments), and the Department of tribes through letters, electronic below: the Interior’s manual at 512 DM 2, we messages, and telephone calls about our readily acknowledge our responsibility exclusion process under section 4(b)2 of PART 17—[AMENDED] to communicate meaningfully with the Act, and we provided templates and recognized Federal tribes on a information to develop management ■ 1. The authority citation for part 17 government-to-government basis. In plans, technical assistance and review continues to read as follows: accordance with Secretarial Order 3206 of management plans, and critical Authority: 16 U.S.C. 1361–1407; 16 U.S.C. of June 5, 1997 (American Indian Tribal habitat designation information and Rights, Federal-Tribal Trust 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– schedule updates. We considered these 625, 100 Stat. 3500; unless otherwise noted. Responsibilities, and the Endangered tribal areas for exclusion from final Species Act), we readily acknowledge critical habitat designation to the extent ■ 2. Amend § 17.11(h) by revising the our responsibilities to work directly consistent with the requirements of entry for ‘‘Flycatcher, southwestern with tribes in developing programs for 4(b)(2) of the Act, and subsequently, willow’’ under ‘‘BIRDS’’ in the List of healthy ecosystems, to acknowledge that excluded all tribal lands from this final Endangered and Threatened Wildlife to tribal lands are not subject to the same designation. read as follows: controls as Federal public lands, to remain sensitive to Indian culture, and References Cited § 17.11 Endangered and threatened wildlife. to make information available to tribes. A complete list of all references cited There were tribal lands in California, is available on the Internet at http:// * * * * * Utah, Arizona, Colorado, and New www.regulations.gov and upon request (h) * * *

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Species Vertebrate pop- ulation where Historic range endangered or Status When listed Critical habitat Special rules Common name Scientific name threatened

******* BIRDS

******* Flycatcher, south- Empidonax traillii U.S.A. (AZ, CA, Entire E ...... 577 17.95(b) NA western willow. extimus. CO, NM, NV, TX, UT), Mexico.

*******

■ 3. In § 17.95, amend paragraph (b) by arroyo willow, red willow, yewleaf (Hymenoptera); dragonflies (Odonata); revising the entry for ‘‘Southwestern willow, pacific willow, boxelder, flies (Diptera); true bugs (Hemiptera); Willow Flycatcher (Empidonax traillii tamarisk, Russian olive, buttonbush, beetles (Coleoptera); butterflies, moths, extimus)’’ to read as follows: cottonwood, stinging nettle, alder, and caterpillars (Lepidoptera); and velvet ash, poison hemlock, blackberry, spittlebugs (Homoptera). § 17.95 Critical habitat—fish and wildlife. seep willow, oak, rose, sycamore, false (3) Critical habitat does not include * * * * * indigo, Pacific poison ivy, grape, (b) Birds. manmade structures (such as buildings, Virginia creeper, Siberian elm, and aqueducts, runways, roads, and other * * * * * walnut) and some combination of: paved areas) and the land on which they (A) Dense riparian vegetation with Southwestern Willow Flycatcher thickets of trees and shrubs that can are located existing within the legal (Empidonax traillii extimus) range in height from about 2 meters (m) boundaries on February 4, 2013. (1) Critical habitat units are depicted to 30 m (about 6 feet (ft) to 98 ft). Lower- (4) Critical habitat map units. Data for Inyo, Kern, Los Angeles, Riverside, stature thickets (2 to 4 m or 6 to 13 ft layers defining map units were created Santa Barbara, San Bernardino, San tall) are found at higher elevation in two steps. First, the linear segments Diego, and Ventura Counties in riparian forests, and tall-stature thickets were mapped from the National California; Clark, Lincoln, and Nye are found at middle- and lower- Hydrologic Dataset using USA Counties in southern Nevada; Kane, San elevation riparian forests; Contiguous Equidistant Conic (North Juan, and Washington Counties in (B) Areas of dense riparian foliage at American Datum 1983) coordinates. southern Utah; Alamosa, Conejos, least from the ground level up to Next, the lateral extents were digitized Costilla, and La Plata Counties in approximately 4 m (13 ft) above ground over the most recent available aerial southern Colorado; Apache, Cochise, or dense foliage only at the shrub or tree photography using Albers Equal Area Gila, Graham, Greenlee, La Paz, level as a low, dense canopy; Conic (North American Datum 1983) Maricopa, Mohave, Pima, Pinal, Santa (C) Sites for nesting that contain a coordinates. The maps in this entry, as Cruz, and Yavapai Counties in Arizona; dense (about 50 percent to 100 percent) modified by any accompanying and Catron, Grant, Hidalgo, Mora, Rio tree or shrub (or both) canopy (the regulatory text, establish the boundaries Arriba, Socorro, Taos, and Valencia amount of cover provided by tree and of the critical habitat designation. The Counties in New Mexico on the maps shrub branches measured from the coordinates or plot points or both on and as described below. ground); which each map is based are available (2) Within these areas, the primary (D) Dense patches of riparian forests to the public at the field office internet constituent elements of the physical and that are interspersed with small site (http://www.fws.gov/southwest/es/ biological features essential to the openings of open water or marsh or arizona/), http://www.regulations.gov at conservation of the southwestern areas with shorter and sparser Docket No. FWS–R2–ES–2011–0053, willow flycatcher consist of two vegetation that creates a variety of components: habitat that is not uniformly dense. and at the Arizona Ecological Services (i) Riparian vegetation. Riparian Patch size may be as small as 0.1 hectare Office. The textual description for each habitat along a dynamic river or (ha) (0.25 acre (ac)) or as large as 70 ha critical habitat unit below includes the lakeside, in a natural or manmade (175 ac). Universal Transverse Mercator (UTM) successional environment (for nesting, (ii) Insect prey populations. A variety zone and UTM easting (E) and northing foraging, migration, dispersal, and of insect prey populations found within (N) coordinate pairs for the starting and shelter) that is comprised of trees and or adjacent to riparian floodplains or ending points. shrubs (that can include Gooddings moist environments, which can include: (5) Index map of southwestern willow willow, coyote willow, Geyer’s willow, flying ants, wasps, and bees flycatcher critical habitat units follows:

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(6) Santa Ynez Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Santa Ynez River (east) ...... 11, 259890, 3821926 ..... 11, 255550, 3823716. Santa Ynez River (middle) ...... 11, 253343, 3823606 ..... 11, 249967, 3824847. Santa Ynez River (west) ...... 10, 759116, 3832075 ..... 10, 732972, 3839168. Mono Creek ...... 11, 258529, 3824766 ..... 11, 258310, 3822974.

(ii) Map of Santa Ynez Management Unit follows:

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(7) Santa Clara Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Ventura River ...... 11, 287996, 3818329 ..... 11, 287559, 3794961. Santa Clara River ...... 11, 354467, 3810419 ..... 11, 291354, 3790556. Piru Creek ...... 11, 339998, 3831805 ..... 11, 335776, 3807951. Castaic Creek ...... 11, 351629, 3813373 ..... 11, 350055, 3809756. Big Tujunga Canyon Creek ...... 11, 376326, 3792941 ..... 11, 372432, 3792049. San Gabriel River ...... 11, 418737, 3781999 ..... 11, 410558, 3775011.

(ii) Map of Santa Clara Management Unit follows:

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(8) Santa Ana Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Santa Ana River (east) ...... 11, 524293, 3778965 ..... 11, 491603, 3775416. Santa Ana River (middle) ...... 11, 476054, 3771257 ..... 11, 465807, 3764349. Santa Ana River (west) ...... 11, 446395, 3755315 ..... 11, 445684, 3754790. Santa Ana River (west) ...... 11, 445183, 3754633 ..... 11, 444806, 3753995. Waterman Creek (left fork) ...... 11, 473453, 3785826 ..... 11, 473755, 3785448.

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Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Waterman Creek (right fork) ...... 11, 474240, 3786803 ..... 11, 473755, 3785448. Waterman Creek ...... 11, 474905, 3782822 ..... 11, 473755, 3785448. Bear Creek ...... 11, 502121, 3788996 ..... 11, 498606, 3779948. Mill Creek ...... 11, 513502, 3770687 ..... 11, 496356, 3772092. Oak Glen Creek ...... 11, 505534, 3767595 ..... 11, 501351, 3768018. San Timoteo Creek ...... 11, 484708, 3762642 ..... 11, 481625, 3764986. Bautista Creek (east) ...... 11, 528791, 3720143 ..... 11, 527304, 3719071. Bautista Creek (middle) ...... 11, 526904, 3718922 ..... 11, 518771, 3721743. Bautista Creek (west) ...... 11, 517140, 3723124 ..... 11, 514531, 3727407.

(ii) Map of Santa Ana Management Unit follows:

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(9) San Diego Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

DeLuz Creek ...... 11, 469888, 3700258 ..... 11, 470085, 3697512. Santa Margarita River ...... 11, 481662, 3699235 ..... 11, 476206, 3695949. Temecula Creek ...... 11, 517749, 3695379 ..... 11, 514170, 3698604. Pilgrim Creek ...... 11, 471495, 3681452 ..... 11, 468703, 3677979. San Luis Rey (a) ...... 11, 521911, 3678001 ..... 11, 515935, 3681292. San Luis Rey (b) ...... 11, 511327, 3681486 ..... 11, 510983, 3681512. San Luis Rey (c) ...... 11, 509443, 3679678 ..... 11, 508633, 3679673. San Luis Rey (d) ...... 11, 503450, 3681703 ..... 11, 502102, 3684334. San Luis Rey (e) ...... 11, 500948, 3684975 ..... 11, 497954, 3689280. San Luis Rey (f) ...... 11, 497754, 3689394 ..... 11, 497376, 3690144.

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Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

San Luis Rey (g) ...... 11, 497295, 3690329 ..... 11, 496153, 3690759. San Luis Rey (h) ...... 11, 496081, 3690813 ..... 11, 495783, 3690993. San Luis Rey (i) ...... 11, 489568, 3690435 ..... 11, 485862, 3687887. San Luis Rey (j) ...... 11, 485350, 3687335 ..... 11, 463676, 3673857. Agua Hedionda Creek (right fork) ...... 11, 478544, 3668255 ..... 11, 478368, 3668540. Agua Hedionda Creek (left fork) ...... 11, 479102, 3668675 ..... 11, 478368, 3668540. Agua Hedionda Creek (east) ...... 11, 478368, 3668540 ..... 11, 477313, 3668413. Agua Hedionda Creek (west) ...... 11, 477300, 3668395 ..... 11, 476338, 3667736. Santa Ysabel River ...... 11, 510002, 3661282 ..... 11, 513775, 3664649. San Diego River (north) ...... 11, 524742, 3650609 ..... 11, 524200, 3648866. San Diego River (south) ...... 11, 524334, 3648051 ..... 11, 521806, 3645774. Sweetwater River (east) ...... 11, 506745, 3622685 ..... 11, 505588, 3621746. Sweetwater River (west) ...... 11, 505445, 3621626 ..... 11, 503989, 3619356.

(ii) Map of San Diego Management Unit follows:

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(10) Kern Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

South Fork Kern River (east) ...... 11, 393579, 3955510 ..... 11, 380211, 3948598. South Fork Kern River (west) ...... 11, 379924, 3948465 ..... 11, 375779, 3947268. Canebrake Creek ...... 11, 395263, 3954472 ..... 11, 393671, 3954409.

(ii) Map of Kern Management Unit follows:

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(11) Mojave Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Mojave River ...... 11, 469646, 3844680 ..... 11, 476583, 3814381. Holcomb Creek ...... 11, 503127, 3796007 ..... 11, 488326, 3794046. Deep Creek ...... 11, 488326, 3794046 ..... 11, 478190, 3800025. West Fork Mojave River ...... 11, 478190, 3800025 ..... 11, 469339, 3796375.

(ii) Map of Mojave Management Unit follows:

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(12) Salton Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

San Felipe Creek ...... 11, 549258, 3662280 ..... 11, 535835, 3672883. Mill Creek ...... 11, 514349, 3770661 ..... 11, 513502, 3770687.

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(ii) Map of Salton Management Unit follows:

(13) Amargosa Management Unit. (i)

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Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Amargosa River ...... 11, 569473, 3967513 ..... 11, 570730, 3958035. Willow Creek ...... 11, 574000, 3962736 ..... 11, 572077, 3960419. Soda Springs—Ash Meadows NWR ...... 11, 559404, 4038346 ..... 11, 559130, 4038028. Lower Fairbanks—Ash Meadows NWR ...... 11, 557831, 4036089 ..... 11, 557907, 4035290. Crystal Reservoir–Ash Meadows NWR ...... 11, 561026, 4028705 ..... 11, 561308, 4028268. North Tubbs—Ash Meadows NWR ...... 11, 562783, 4025401 ..... 11, 562971, 4025329. South Tubbs—Ash Meadows NWR ...... 11, 563507, 4025681 ..... 11, 563484, 4025649.

(ii) Map of Amargosa Management Unit follows:

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(14) Little Colorado Management (i) Unit.

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

West Fork Little Colorado River ...... 12, 636971, 3758442 ..... 12, 642537, 3763668. Little Colorado River ...... 12, 642537, 3763668 ..... 12, 647842, 3773009.

(ii) Map of Little Colorado Management Unit follows:

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(15) Virgin Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Virgin River ...... 12, 288341, 4116050 ..... 12, 201782, 4048748.

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(ii) Map of Virgin Management Unit follows:

(16) Pahranagat Management Unit. (i)

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Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Pahranagat River ...... 11, 666731, 4128006 ..... 11, 665370, 4131144.

(ii) Map of Pahranagat Management Unit follows:

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(17) Bill Williams Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Big Sandy River ...... 12, 261621, 3843406 ..... 12, 259631, 3818574. Big Sandy River (Alamo Lake) ...... 12, 266124, 3806764 ..... 12, 267166, 3799203. Santa Maria River (Alamo Lake) ...... 12, 274410, 3798130 ..... 12, 267166, 3799203. Bill Williams River (Alamo Lake) ...... 12, 263610, 3795533 ..... 12, 267166, 3799203. Bill Williams River (middle) ...... 12, 254565, 3788878 ..... 12, 240599, 3791815. Bill Williams River (west) ...... 12, 229050, 3794316 ..... 11, 219463, 3796378.

(ii) Map of Bill Williams Management Unit follows:

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(18) San Juan Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Los Pinos River ...... 13, 270002, 4121643 ..... 13, 269247, 4127372. San Juan River (north bank) (a) ...... 12, 645196, 4125489 ..... 12, 644259, 4125816. San Juan River (north bank) (b) ...... 12, 643496, 4126221 ..... 12, 643087, 4126308. San Juan River (north bank) (c) ...... 12, 642048, 4126642 ..... 12, 641584, 4126669. San Juan River (north bank) (d) ...... 12, 639237, 4127496 ..... 12, 638861, 4126738.

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Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

San Juan River (north bank) (e) ...... 12, 638284, 4126485 ..... 12, 637792, 4126469. San Juan River (north bank) (f) ...... 12, 637202, 4126657 ..... 12, 637106, 4126797. San Juan River (north bank) (g) ...... 12, 636634, 4127216 ..... 12, 634726, 4127362. San Juan River (north bank) (h) ...... 12, 629380, 4126564 ..... 12, 629093, 4126125. San Juan River (north bank) (i) ...... 12, 625734, 4125285 ..... 12, 625705, 4125263. San Juan River (north bank) (j) ...... 12, 623718, 4124823 ..... 12, 622438, 4124358. San Juan River (north bank) (k) ...... 12, 622161, 4123347 ..... 12, 622295, 4122911. San Juan River (north bank) (l) ...... 12, 622386, 4122629 ..... 12, 622370, 4122575. San Juan River (north bank) (m) ...... 12, 617636, 4121043 ..... 12, 617515, 4120863. San Juan River (north bank) (n) ...... 12, 614411, 4119430 ..... 12, 614122, 4118982. San Juan River (north bank) (o) ...... 12, 614014, 4118335 ..... 12, 613916, 4117990.

(ii) Map of San Juan Management Unit follows:

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(19) Powell Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Paria River ...... 12, 417429, 4120619 ..... 12, 419459, 4107235.

(ii) Map of Powell Management Unit follows:

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(20) Verde Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Verde River (north) (a) ...... 12, 402583, 3854022 ..... 12, 417654, 3832237. Verde River (north) (b) ...... 12, 417505, 3832092 ..... 12, 417501, 3831831. Verde River (north) (c) ...... 12, 417492, 3831154 ..... 12, 417486, 3830684. Verde River (north) (d) ...... 12, 418260, 3830003 ..... 12, 420778, 3821249. Verde River (north) (e) ...... 12, 420842, 3821249 ..... 12, 420946, 3821249.

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Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Verde River (north) (f) ...... 12, 421564, 3821197 ..... 12, 428120, 3814335. Verde River (middle) ...... 12, 438102, 3793821 ..... 12, 432660, 3767298. Verde River (south) ...... 12, 434407, 3760594 ..... 12, 436961, 3756352.

(ii) Map of Verde Management Unit follows:

(21) Roosevelt Management Unit. (i)

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Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Tonto Creek ...... 12, 477856, 3734906 ..... 12, 474349, 3773074. Salt River ...... 12, 500594, 3724174 ..... 12, 518565, 3725825.

(ii) Map of Roosevelt Management Unit follows:

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(22) Middle Gila and San Pedro (i) Management Unit.

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Gila River ...... 12, 527193, 3660545 ..... 12, 476979, 3662407. San Pedro River (d) ...... 12, 566945, 3554766 ..... 12, 525343, 3640631.

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Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

San Pedro River (c) ...... 12, 525384, 3640762 ..... 12, 525584, 3641024. San Pedro River (b) ...... 12, 525629, 3641438 ..... 12, 525358, 3641744. San Pedro River (a) ...... 12, 525001, 3641712 ..... 12, 520287, 3649594.

(ii) Map of Middle Gila and San Pedro Management Unit follows:

(23) Upper Gila Management Unit. (i)

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Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Gila River (east) (a) ...... 12, 734274, 3662473 ..... 12, 728739, 3655290. Gila River (east) (b) ...... 12, 728580, 3655097 ..... 12, 728537, 3655057. Gila River (east) (c) ...... 12, 728427, 3654997 ..... 12, 728137, 3654656. Gila River (east) (d) ...... 12, 728113, 3654588 ..... 12, 727938, 3654314. Gila River (east) (e) ...... 12, 727498, 3653376 ..... 12, 727395, 3653367. Gila River (east) (f) ...... 12, 727387, 3653367 ..... 12, 727033, 3652562. Gila River (east) (g) ...... 12, 726825, 3652154 ..... 12, 726768, 3652095. Gila River (east) (h) ...... 12, 726395, 3651745 ..... 12, 726361, 3651686. Gila River (east) (i) ...... 12, 724538, 3649297 ..... 12, 724416, 3649186. Gila River (east) (j) ...... 12, 723879, 3648880 ..... 12, 723637, 3648711. Gila River (east) (k) ...... 12, 723626, 3648220 ..... 12, 723707, 3648074. Gila River (east) (l) ...... 12, 723726, 3647982 ..... 12, 723726, 3647894. Gila River (east) (m) ...... 12, 723769, 3647188 ..... 12, 725465, 3644450. Gila River (east) (n) ...... 12, 724871, 3643867 ..... 12, 724533, 3643574. Gila River (east) (o) ...... 12, 724794, 3642783 ..... 12, 724788, 3641978. Gila River (east) (p) ...... 12, 724913, 3640498 ..... 12, 724873, 3640376. Gila River (east) (q) ...... 12, 725055, 3639520 ..... 12, 724887, 3639586. Gila River (east) (r) ...... 12, 725319, 3639100 ..... 12, 725232, 3639274. Gila River (east) (s) ...... 12, 725376, 3638811 ..... 12, 724678, 3636350. Gila River (east) (t) ...... 12, 724616, 3636306 ..... 12, 723917, 3635619. Gila River (east) (u) ...... 12, 724979, 3631107 ..... 12, 723787, 3635503. Gila River (middle) ...... 12, 717951, 3623479 ..... 12, 675537, 3624185. Gila River (west) ...... 12, 639563, 3639230 ..... 12, 588063, 3662184.

(ii) Map of Upper Gila Management Unit follows:

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(24) Santa Cruz Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Santa Cruz River ...... 12, 502742, 3480432 ..... 12, 495504, 3501179. Cienega Creek ...... 12, 543034, 3528728 ..... 12, 538757, 3515860. Empire Gulch (west) ...... 12, 534569, 3516911 ..... 12, 534222, 3516970. Empire Gulch (confluence with Cienega Creek) ...... 12, 538826, 3519337 ..... 12, 538662, 3518116.

(ii) Map of Santa Cruz Management Unit follows:

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(25) San Francisco Management Unit. (i)

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

San Francisco River (north) (west segment) ...... 12, 666982, 3748335 ..... 12, 675606, 3745177. San Francisco River (north) (east segment) ...... 12, 678191, 3744748 ..... 12, 699562, 3745269. San Francisco River (middle) (New Mexico) ...... 12, 693857, 3703486 ..... 12, 697331, 3680357. San Francisco River (south) (Arizona) ...... 12, 661571, 3670502 ..... 12, 681790, 3679428.

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(ii) Map of San Francisco Management Unit follows:

(26) Hassayampa and Agua Fria (i) Management Unit.

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Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Hassayampa River ...... 12, 342308, 3757092 ..... 12, 345848, 3751261.

(ii) Map of Hassayampa and Agua Fria Management Unit follows:

(27) San Luis Valley Management (i) Unit.

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Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Conejos River (a) ...... 13, 429852, 4128272 ..... 13, 430156, 4128249. Conejos River (b) ...... 13, 428787, 4127864 ..... 13, 429759, 4128320. Conejos River (c) ...... 13, 426944, 4126743 ..... 13, 428019, 4127483. Conejos River (d) ...... 13, 426839, 4126661 ..... 13, 426944, 4126712. Rio Grande Alamosa NWR (a) ...... 13, 425015, 4146872 ..... 13, 424689, 4146861. Rio Grande Alamosa NWR (b) ...... 13, 425325, 4145894 ..... 13, 425218, 4146803. Rio Grande Alamosa NWR (c) ...... 13, 425993, 4145065 ..... 13, 425968, 4145195. Rio Grande Alamosa NWR (d) ...... 13, 426007, 4144674 ..... 13, 425947, 4144875. Rio Grande Alamosa NWR (e) ...... 13, 426375, 4144517 ..... 13, 426158, 4144551. Rio Grande Alamosa NWR (f) ...... 13, 426597, 4144617 ..... 13, 426539, 4144526. Rio Grande Alamosa NWR (g) ...... 13, 426772, 4144724 ..... 13, 427043, 4144549. Rio Grande Alamosa NWR (h) ...... 13, 427054, 4144318 ..... 13, 427082, 4144368. Rio Grande Alamosa NWR (i) ...... 13, 426927, 4144080 ..... 13, 426966, 4144240. Rio Grande Alamosa NWR (j) ...... 13, 427035, 4143868 ..... 13, 426910, 4143984. Rio Grande Alamosa NWR (k) ...... 13, 427220, 4143816 ..... 13, 427093, 4143789. Rio Grande Alamosa NWR (l) ...... 13, 427393, 4143996 ..... 13, 427293, 4143901. Rio Grande Alamosa NWR (m) ...... 13, 427666, 4143776 ..... 13, 427440, 4144028. Rio Grande Alamosa NWR (n) ...... 13, 427915, 4143464 ..... 13, 427792, 4143694. Rio Grande Alamosa NWR (o) ...... 13, 428181, 4143345 ..... 13, 427986, 4143362. Rio Grande Alamosa NWR (p) ...... 13, 428459, 4143470 ..... 13, 428228, 4143377. Rio Grande Alamosa NWR (q) ...... 13, 428708, 4143582 ..... 13, 428673, 4143555. Rio Grande Alamosa NWR (r) ...... 13, 429166, 4143276 ..... 13, 428800, 4143661. Rio Grande Alamosa NWR (s) ...... 13, 430052, 4142873 ..... 13, 429858, 4142950. Rio Grande Alamosa NWR (t) ...... 13, 430498, 4142399 ..... 13, 430209, 4142812. Rio Grande Alamosa NWR (u) ...... 13, 430614, 4138902 ..... 13, 430557, 4142367. Rio Grande Alamosa NWR (v) ...... 13, 431001, 4137666 ..... 13, 430612, 4138731. Rio Grande Alamosa NWR (w) ...... 13, 432176, 4135160 ..... 13, 431001, 4137611. Rio Grande Alamosa NWR (x) ...... 13, 432643, 4134711 ..... 13, 432171, 4134988. Rio Grande Alamosa NWR (y) ...... 13, 432779, 4134527 ..... 13, 432715, 4134634. Rio Grande Alamosa NWR (z) ...... 13, 432856, 4134398 ..... 13, 432802, 4134495. Rio Grande Alamosa NWR (aa) ...... 13, 432979, 4134165 ..... 13, 432938, 4134250. Rio Grande Alamosa NWR (bb) ...... 13, 433594, 4133899 ..... 13, 433579, 4134077. Rio Grande (south) ...... 13, 434064, 41120967 ... 13, 432747, 4103848.

(ii) Map of San Luis Valley Management Unit follows:

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(28) Upper Rio Grande Management (i) Unit.

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Rio Grande (north) ...... 13, 434154, 4021496 ..... 13, 404034, 3994489. Rio Grande (south) ...... 13, 403328, 3985181 ..... 13, 403319, 3986279. Coyote Creek ...... 13, 479246, 4005468 ..... 13, 480419, 3997620. Rio Grande del Rancho ...... 13, 447971, 4012369 ..... 13, 446044, 4021640. Rio Fernando ...... 13, 447152, 4028423 ..... 13, 446856, 4028320.

(ii) Map of Upper Rio Grande Management Unit follows:

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(29) Middle Rio Grande Management (i) Unit.

Stream segment Start: UTM Zone, E, N End: UTM Zone, E, N

Rio Grande ...... 13, 343067, 3856213 ..... 13, 298922, 3683834.

(ii) Map of Middle Rio Grande Management Unit follows:

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* * * * * Dated: December 11, 2012. Michael J. Bean, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2012–30634 Filed 1–2–13; 8:45 am] BILLING CODE 4310–55–C

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Part III

Department of Homeland Security

8 CFR Parts 103 and 212 Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives; Final Rule

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DEPARTMENT OF HOMELAND Department of Homeland Security, 20 cannot apply for the waiver until after SECURITY Massachusetts Avenue NW., their immigrant visa interviews abroad. Washington, DC 20529–2099, As a result, these immediate relatives 8 CFR Parts 103 and 212 Telephone (202) 272–1470 (this is not a must remain outside of the United [CIS No. 2519–2011; DHS Docket No. toll free number). States, separated from their U.S. citizen spouses, parents, or children, while USCIS–2012–0003] Table of Contents USCIS adjudicates their waiver RIN 1615–AB99 I. Executive Summary applications. In some cases, waiver A. Purpose of the Regulatory Action application processing can take well Provisional Unlawful Presence Waivers B. Summary of the Major Provisions of the over one year, prolonging the separation of Inadmissibility for Certain Regulatory Action of these immediate relatives from their Immediate Relatives C. Costs and Benefits II. Legal Authority U.S. citizen spouses, parents, and AGENCY: U.S. Citizenship and III. Background children. In addition, the action Immigration Services, DHS. A. Notice of Intent required for these immediate relatives to ACTION: Final rule. B. Proposed Rule obtain LPR status in the United States— C. Final Rule departure from the United States to SUMMARY: On April 2, 2012, U.S. IV. Public Comments on Proposed Rule apply for an immigrant visa at a DOS Citizenship and Immigration Services A. Summary of Public Comments consulate abroad—is the very action B. Legal Authority To Implement the that triggers the unlawful presence (USCIS) published a proposed rule to Provisional Unlawful Presence Waiver amend its regulations to allow certain Process inadmissibility grounds under section immediate relatives of U.S. citizens who C. Eligibility for the Provisional Unlawful 212(a)(9)(B)(i) of the Immigration and are physically present in the United Presence Waiver Nationality Act (INA), 8 U.S.C. States to request provisional unlawful D. Filing Requirements and Fees 1182(a)(9)(B)(i). As a result of the often presence waivers prior to departing E. Adjudication lengthy processing times and from the United States for consular F. Denials, Motions To Reopen or uncertainty about whether they qualify processing of their immigrant visa Reconsider, and Appeals for a waiver of the unlawful presence G. Effect of Pending or Approved inadmissibility grounds, many applications. This final rule implements Provisional Unlawful Presence Waivers the provisional unlawful presence H. Automatic Revocation immediate relatives who may qualify for waiver process. It also finalizes I. Comments on Form I–601A, Application an immigrant visa are reluctant to clarifying amendments to other for Provisional Unlawful Presence proceed abroad to seek an immigrant provisions within our regulations. The Waiver visa. Department of Homeland Security J. Miscellaneous Comments K. Comments on Executive Orders 12866/ 2. Provisional Unlawful Presence (DHS) anticipates that these changes Waiver Process will significantly reduce the length of 13563 Analysis V. Regulatory Amendments time U.S. citizens are separated from Through this final rule, DHS is VI. Statutory and Regulatory Requirements changing its current process for the their immediate relatives who engage in A. Unfunded Mandates Reform Act of 1995 consular processing abroad. DHS also filing and adjudication of certain B. Small Business Regulatory Enforcement waivers of inadmissibility for eligible believes that this new process will Fairness Act of 1996 reduce the degree of interchange C. Executive Orders 12866 (Regulatory immediate relatives of U.S. citizens, between the U.S. Department of State Planning and Review) and 13563 who are physically present in the United States but will proceed abroad to (DOS) and USCIS and create greater (Improving Regulation and Regulatory Review) obtain their immigrant visas. The new efficiencies for both the U.S. D. Executive Order 13132 waiver process will allow eligible Government and most provisional E. Executive Order 12988 Civil Justice immediate relatives to apply for a unlawful presence waiver applicants. Reform provisional unlawful presence waiver DHS reminds the public that the filing F. Paperwork Reduction Act while they are still in the United States or approval of a provisional unlawful G. Regulatory Flexibility Act and before they leave to attend their presence waiver application will not: SUPPLEMENTARY INFORMATION: immigrant visa interview abroad. DHS Confer any legal status, protect against anticipates that this new provisional the accrual of additional periods of I. Executive Summary unlawful presence waiver process will unlawful presence, authorize an alien to A. Purpose of the Regulatory Action significantly reduce the time that U.S. enter the United States without securing citizens are separated from their a visa or other appropriate entry 1. Need for the Regulatory Action immediate relatives. USCIS’s approval document, convey any interim benefits Certain spouses, children, and parents of an applicant’s provisional unlawful (e.g., employment authorization, parole, of U.S. citizens (immediate relatives) presence waiver prior to departure also or advance parole), or protect an alien who are in the United States are not will allow the DOS consular officer to from being placed in removal eligible to apply for lawful permanent issue the immigrant visa without further proceedings or removed from the United resident (LPR) status while in the delay, if there are no other grounds of States in accordance with current DHS United States. Instead, these immediate inadmissibility and if the immediate policies governing initiation of removal relatives must travel abroad to obtain an relative is otherwise eligible to be issued proceedings and the use of prosecutorial immigrant visa from the Department of an immigrant visa. discretion. State (DOS) to return to the United DATES: This final rule is effective States to request admission as an LPR, 3. Legal Authority March 4, 2013. and, in many cases, also must request The Homeland Security Act of 2002, FOR FURTHER INFORMATION CONTACT: from the Department of Homeland Public Law 107–296 (Homeland Roselyn Brown-Frei, Office of Policy Security (DHS) a waiver of Security Act of 2002), section 102, 116 and Strategy, Residence and inadmissibility as a result of their Stat. 2135, 6 U.S.C. 112, and INA Naturalization Division, U.S. unlawful presence in the United States. section 103, 8 U.S.C. 1103, charge the Citizenship and Immigration Services, Currently, these immediate relatives Secretary of Homeland Security

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(Secretary) with the administration and and (i), 8 U.S.C. 1182(h) and (i). DHS unlawful presence waiver process and enforcement of the immigration and agrees and has revised the amendment its operational impact, DHS, in naturalization laws. The Secretary is to 8 CFR 212.7(a)(4) to clarify that consultation with DOS and other implementing this provisional unlawful automatic revocation of approved affected agencies, will consider presence waiver process under the waivers upon termination of conditional expanding the provisional unlawful broad authority to administer DHS and resident status only applies to approved presence waiver process to other the authorities provided under the waivers based on INA sections 212(h), 8 categories. Homeland Security Act of 2002, the U.S.C. 1182(h) (waivers for certain 6. Former Section 212.7(e)(4)(ii)(H) immigration and nationality laws, and criminal offenses), and INA section other delegated authority. The 212(i), 8 U.S.C. 1182(i) (waivers for DHS initially proposed to reject a Secretary’s discretionary authority to fraud or willful misrepresentation of a provisional unlawful presence waiver waive the ground of inadmissibility for material fact). See section application if an alien has not indicated unlawful presence can be found in INA 212.7(a)(4)(iv). on the application that the qualifying section 212(a)(9)(B)(v), 8 U.S.C. relative is a U.S. citizen spouse or 3. Section 212.7(e)(1) 1182(a)(9)(B)(v). The regulation parent. See 77 FR at 19922. DHS has governing certain inadmissibility During discussions about the determined that this criterion is more waivers is 8 CFR 212.7. The fee proposed provisional unlawful presence appropriate for an adjudicative decision schedule for provisional unlawful waiver process and how it would affect and that this assessment should not be presence waiver applications is found at aliens in removal proceedings, a made through a review during the 8 CFR 103.7(b)(1)(i)(AA). question arose regarding the authority of intake process. Thus, DHS has deleted Department of Justice (DOJ), Executive this rejection criterion in the final rule. B. Summary of the Major Provisions of Office for Immigration Review (EOIR) 7. Section 212.7(e)(4)(iv) the Regulatory Action immigration judges (IJs) and whether IJs On April 2, 2012, U.S. Citizenship would adjudicate Forms I–601A for DHS proposed excluding aliens from and Immigration Services (USCIS) aliens in removal proceedings. DHS the provisional unlawful presence published a Notice of Proposed determined that it would be more waiver process who were already Rulemaking (NPRM), which outlined efficient and appropriate to have Form scheduled for their immigrant visa the provisional unlawful presence I–601A waivers centralized and interviews with DOS. See 77 FR at waiver process. See Provisional adjudicated by one agency, USCIS, 19921. DHS has retained this Unlawful Presence Waivers of especially given the intended requirement. DHS now adds language to Inadmissibility for Certain Immediate streamlined nature of the process and the final rule to clarify when an alien is Relatives, 77 FR 19902 (April 2, 2012). the need for close coordination with ineligible for a provisional unlawful After careful consideration of the public DOS once a waiver is decided. DHS presence waiver because of a previously comments, DHS adopts most of the therefore added a new paragraph to scheduled immigrant visa interview. proposed regulatory amendments clarify that the Application for USCIS will first look at whether the without change, except for the Provisional Unlawful Presence Waiver, scheduled immigrant visa interview is provisions noted below: Form I–601A, will be filed only with based on the approved immediate USCIS, even if an alien is in removal relative petition (I–130 or I–360) that 1. Section 103.7(c)(3)(i) proceedings before EOIR. See section accompanies the Form I–601A. If it is, In the proposed rule, DHS noted in 212.7(e)(1). USCIS will then look at the Department the supplementary text that applicants of State’s Consular Consolidated for a provisional unlawful presence 4. Section 212.7(e)(2) Database (CCD) to determine the date on waiver cannot seek a fee waiver for the DHS restructured this provision and which the Department of State initially Form I–601A filing fees or the required added language to make clear that acted to schedule the applicant for his biometric fees. See 77 FR at 19910. DHS approval of the provisional unlawful or her immigrant visa interview (i.e., the incorrectly referenced proposed presence waiver is discretionary and date of scheduling itself and not the regulatory text at 8 CFR 103.7(b)(1)(i)(C) does not constitute a grant of any lawful date and time the applicant must appear and inadvertently omitted the correct immigration status or create a period of for the interview). citation to the regulatory provision stay authorized by the Secretary for If the date that the Department of being amended and the amendatory purposes of INA section 212(a)(9)(B), 8 State initially acted to schedule the text. DHS has corrected this error and U.S.C. 1182(a)(9)(B). See section immigrant visa interview is prior to the has included an amendment to 8 CFR 212.7(e)(2)(i). DHS also clarified that a date of publication of this final rule, 103.7(c)(3) in this final rule to clarify pending or approved provisional January 3, 2013, then the alien is that fee waivers are not available for the unlawful presence waiver does not ineligible to apply for a provisional biometric or filing fees for the Form I– authorize any interim benefits such as unlawful presence waiver. If the date 601A. See section 103.7(c)(3)(i). employment authorization or advance that the Department of State initially parole. See section 212.7(e)(2)(ii). acted to schedule the immigrant visa 2. Section 212.7(a)(4)(iv) interview is on or after the publication DHS proposed an amendment to 8 5. Section 212.7(e)(3) date of this final rule, the alien is CFR 212.7(a)(4) to provide that Many commenters asked DHS to eligible to apply for a provisional termination of an alien’s conditional expand eligibility for the provisional unlawful presence waiver. The actual LPR status also would result in unlawful presence waiver process to date and time that the alien is scheduled automatic revocation of an approved other categories of aliens seeking to to appear for the interview is not waiver of inadmissibility. See 77 FR at immigrate to the United States. DHS relevant for the eligibility 19912 and 19921. Several commenters considered the commenters’ suggestions determination. This rule applies even if noted that INA section 216(f), 8 U.S.C. but is limiting the provisional unlawful the alien failed to appear for his or her 1186a(f), only allows for automatic presence waiver to immediate relatives interview, cancelled the interview, or revocation of waivers of inadmissibility of U.S. citizens. After assessing the requested that the interview be approved under INA sections 212(h) effectiveness of the new provisional rescheduled. Therefore, USCIS may

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reject or deny any Form I–601A filed by granted before they depart for their denied or withdrawn, the individual an alien who USCIS determines that the immigrant visa interviews to avoid may file a new Form I–601A, in Department of State initially acted to possible delays in their immigrant visa accordance with the form instructions schedule an initial immigrant visa processing or risk becoming ineligible and with the required fees. The interview for the approved immediate for the immigrant visa based on another applicant’s case must still be pending relative petition upon which the Form ground of inadmissibility. See section with DOS. In the case of a withdrawn I–601A is based, prior to the date of 212.7(e)(2). Finally, DHS has made Form I–601A, USCIS will not refund the publication of this final rule. See section conforming changes to the filing filing fees because USCIS has already 212.7(e)(4)(iv). requirements in section 212.7(e)(5)(i) to undertaken steps to adjudicate the case. An alien who is ineligible to apply for include aliens who are in removal Alternatively, an individual who a provisional unlawful presence waiver proceedings that are administratively withdraws his or her Form I–601A filing because of a previously scheduled closed and have not been recalendared prior to final adjudication, or whose immigrant visa interview may still at the time of filing the Form I–601A.1 Form I–601A is denied, can apply for a qualify for a provisional unlawful traditional waiver by filing Form I–601, presence waiver if he or she has a new 9. Section 212.7(e)(4)(ix) Application for Waiver of Grounds of DOS immigrant visa case because (1) For operational reasons, DHS initially Inadmissibility, with the USCIS DOS terminated the immigrant visa proposed rejecting applications filed by Lockbox, after he or she attends the registration associated with the aliens who previously filed a Form I– immigrant visa interview abroad and previously scheduled interview, and 601A with USCIS. DHS designed the after DOS conclusively determines that they have a new immediate relative provisional unlawful presence waiver the individual is inadmissible on a petition; or (2) the alien has a new process to streamline waiver and ground(s) that is waivable. DHS, immediate relative petition filed on his immigrant visa processing by closely therefore, has removed this provision or her behalf by a different petitioner. tying adjudication of the Form I–601A from the final rule. to the National Visa Center (NVC) 8. Section 212.7(e)(4)(v) 10. Section 212.7(e)(5)(ii) immigrant visa processing schedule. DHS initially proposed excluding all DHS considered the potential impact of DHS corrected a typographical error aliens who were in removal proceedings multiple filings on this schedule, the in the prefatory language to this section, from the provisional unlawful presence possible delays to the immigrant visa removing the term ‘‘application’’ the waiver process, except those whose: (1) process, and the potential for agency second time it appears in the paragraph. Removal proceedings had been backlogs. See section 212.7(e)(5)(ii). terminated or dismissed; (2) Notices to Many commenters, however, 11. Section 212.7(e)(5)(ii)(A) Appear (NTAs) had been cancelled; or expressed concern that limiting the (3) removal proceedings had been program to one-time filings could DHS proposed a list of rejection administratively closed but potentially exclude individuals who criteria for Forms I–601A filed at the subsequently were reopened to grant otherwise would qualify for the Lockbox, including the criterion to voluntary departure. See 77 FR at provisional unlawful presence waiver. reject for failure to pay the required or 19922. In this final rule, DHS has not Upon consideration of these correct fee for the waiver application. used the initial proposed categories of comments, DHS agrees that an alien See 77 FR at 19922. DHS inadvertently aliens above. Rather, DHS has decided could have compelling reasons for filing referenced the biometric fee as a basis to allow aliens in removal proceedings another provisional unlawful presence for rejection in the supplementary to participate in this new provisional application, especially in cases where information. See 77 FR at 19911. DHS unlawful presence waiver process if an alien’s circumstances have changed has modified the regulatory text to make their removal proceedings are or the alien was a victim of individuals clear that a Form I–601A will only be administratively closed and have not or entities not authorized to practice rejected for failure to pay the required been recalendared at the time of filing immigration law. DHS agrees that a one- or correct application filing fee and not the Form I–601A. See section time filing limitation is too restrictive the biometric fee. See section 212.7(e)(4)(v). Aliens whose removal and is removing the single filing 212.7(e)(5)(ii)(A). proceedings are terminated or dismissed limitation. If an individual’s provisional 12. Section 212.7(e)(5)(ii)(G) are covered in the general population of unlawful presence waiver request is aliens who are eligible to apply for a DHS proposed rejecting provisional provisional unlawful presence waiver. 1 DHS recognizes that this is a departure from the unlawful presence waiver applications Aliens who have had their NTAs long-standing principle in immigration law and filed by aliens who were already cancelled by ICE are also covered in the policy that aliens must establish eligibility not only scheduled for their immigrant visa general population of aliens who are at the time of filing but also up until the time USCIS interviews with DOS. See 77 FR at adjudicates the case. See, e.g., Matter of Isidro- eligible to apply for a provisional Zamorano, 25 I&N Dec. 829, 830–31 (BIA 2012) 19921. DHS has retained this unlawful presence waiver, since their (explaining the ‘‘well established’’ principle that requirement. DHS now adds language to removal proceedings were never application for an immigration benefit is the final rule to clarify when an alien is initiated through filing of an NTA with ‘‘continuing’’ and that eligibility is determined at ineligible for a provisional unlawful the time of adjudication, not at the time of EOIR. application). However, DHS believes that a presence waiver because of a previously Through this final rule, the Form I– departure from this general principle is permissible scheduled immigrant visa interview. 601A and its accompanying and warranted in this limited context, especially USCIS will first look at whether the instructions, and additional information since the provisional unlawful presence waiver scheduled immigrant visa interview is process is purely discretionary. Furthermore, the published on the USCIS Web site, DHS provisional unlawful presence waiver is not valid based on the approved immediate also will notify such applicants that, if while the alien remains in the United States. It only relative petition (I–130 or I–360) that granted the provisional unlawful takes effect after the alien departs from the United accompanies the Form I–601A. If it is, presence waiver, applicants should seek States, appears for his or her immigrant visa USCIS will then look at the Department interview, and is determined by DOS to be termination or dismissal of their otherwise eligible for an immigrant visa, in light of of State’s Consular Consolidated removal proceedings. The request for the approved I–601A provisional unlawful presence Database (CCD) to determine the date on termination or dismissal should be waiver. which the Department of State initially

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acted to schedule the applicant for his qualifying for a provisional unlawful approximately $538.1 million at a seven or her immigrant visa interview (i.e., the presence waiver, especially when they percent discount rate. Compared to the date of scheduling itself and not the may have experienced changed current waiver process, this rule date and time the applicant must appear circumstances that would result in requires that provisional unlawful for the interview). extreme hardship to the U.S. citizen presence waiver applicants submit If the date that the Department of spouse or parent. In light of these biometric information. Included in the State initially acted to schedule the concerns, DHS has amended this final total cost estimate is the cost of immigrant visa interview is prior to the rule to allow aliens who are denied a collecting biometrics, which DHS date of publication of this final rule, provisional unlawful presence waiver to estimates will range from approximately January 3, 2013, then the alien is file another Form I–601A, based on the $32.9 million to approximately $56.6 ineligible to apply for a provisional original approved immigrant visa million discounted at seven percent unlawful presence waiver. If the date petition. Denial of an application for a over ten years. Also included in the that Department of State initially acted provisional unlawful presence waiver is total cost estimate are the costs faced by to schedule the immigrant visa without prejudice to the alien filing those who choose to file new interview is on or after the publication another Form I–601A under paragraph provisional unlawful presence waiver date of this final rule, the alien is (e) provided the alien meets all of the applications based on the same eligible to apply for a provisional requirements. The alien’s case must be approved immediate relative petition if unlawful presence waiver. The actual pending with the Department of State, their original Form I–601A is denied or date and time that the alien is scheduled and the alien must notify the withdrawn, which DHS decided to to appear for the interview is not Department of State that he or she allow in response to public comments to relevant for the eligibility intends to file a new Form I–601A. the proposed rule. Individuals that file determination. This rule applies even if 14. Section 212.7(e)(10) a new Form I–601A will still face the the alien failed to appear for his or her biometric and Form I–601A filing fees immigrant visa interview, cancelled the DHS has amended this provision to allow an applicant to withdraw a and opportunity costs, which we interview, or requested that the estimate will range from approximately interview be rescheduled. Therefore, previously-filed provisional unlawful presence waiver application before final $56.2 million to approximately $96.7 USCIS may reject or deny any Form I– million discounted at seven percent 601A filed by an alien if USCIS adjudication and file another Form I– 601A, in accordance with the form over ten years. In addition, as this rule determines that the Department of State, significantly streamlines the current prior to the date of publication of this instructions and with the required filing and biometric services fees. See section process, DHS expects that additional final rule, initially acted to schedule an 212.7(e)(10). applicants will apply for the provisional immigrant visa interview for the unlawful presence waiver. To the extent approved immediate relative petition 15. Section 212.7(e)(14)(iv) that this rule induces new demand for upon which the Form I–601A is based. DHS clarified the language in section immediate relative immigrant visas, See section 212.7(e)(4)(iv). 212.7(e)(14)(v) to specify that a additional immigration benefit forms, An alien who is ineligible to apply for provisional unlawful presence waiver is such as the Petition for Alien Relative, a provisional unlawful presence waiver automatically revoked if the alien, at Form I–130, will be filed compared to because of a previously scheduled any time before or after the approval of the pre-rule baseline. These additional immigrant visa interview may still the provisional unlawful presence forms will involve fees being paid by qualify for a provisional unlawful waiver, or before the immigrant visa is applicants to the Federal Government presence waiver if he or she has a new issued, reenters or attempts to reenter for form processing and additional DOS immigrant visa case because (1) the United States without being opportunity costs of time being incurred DOS terminated the immigrant visa admitted or paroled. See section by applicants to provide the information registration associated with the 212.7(e)(14)(iv). required by the forms. The cost estimate previously scheduled interview, and for this rule also includes the impact of they have a new immediate relative C. Costs and Benefits this induced demand, which DHS petition; or (2) the alien has a new This final rule is expected to result in estimates will range from approximately immediate relative petition filed on his a reduction of the time that U.S. citizens $106.9 million to approximately $384.8 or her behalf by a different petitioner. are separated from their immediate million discounted at seven percent See section 212.7(e)(5)(ii)(G). relatives, thus reducing the financial over ten years. and emotional hardship for these 13. Section 212.7(e)(9) families. In addition, the Federal Estimates for the costs of the rule DHS initially proposed that aliens Government should achieve increased were developed assuming that current who were denied a provisional unlawful efficiencies in processing immigrant demand for requesting waivers of presence waiver could not file a new visas for individuals subject to the grounds of inadmissibility based only Form I–601A. Instead, such aliens unlawful presence inadmissibility bars on unlawful presence is constrained would have to leave the United States under INA section 212(a)(9)(B), 8 U.S.C. because of concerns that families may for their immigrant visa interviews and 1182(a)(9)(B). We expect costs to the endure lengthy separations under the file a Form I–601, Application for Federal government of the provisional current system. Due to uncertainties as Waiver of Grounds of Inadmissibility, unlawful presence waiver process to be to the degree of the current constraint of after the Department of State offset by the additional fee revenue demand, DHS used a range of constraint determined they were inadmissible. collected for form processing. levels with corresponding increases in Some commenters were concerned that DHS estimates the discounted total demand to estimate the costs. The costs limiting aliens to a single filing of an I– ten-year cost of this rule will range from for each increase in demand are 601A would potentially bar aliens from approximately $196 million to summarized below.

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ESTIMATED INCREASE IN COSTS WITH AN INCREASE IN DEMAND OF:

25% 50% 75% 90%

Cost of Biometrics Collection and Processing

10 year Costs Undiscounted ...... $46,803,460 $59,088,534 $71,373,907 $78,746,295 Total 10 year Costs Discounted at 7% ...... 32,907,683 42,030,423 51,153,460 56,628,050 Total 10 year Costs Discounted at 3% ...... 39,926,220 50,653,297 61,380,675 67,818,069

Cost of Biometrics Collection and Processing and Form I–601A for Re-filers

10 year Costs Undiscounted ...... $79,942,420 $100,924,521 $121,908,872 $134,499,783 Total 10 year Costs Discounted at 7% ...... 56,207,656 71,788,866 87,371,675 96,721,450 Total 10 year Costs Discounted at 3% ...... 68,195,707 86,516,943 104,840,098 115,834,193

Costs of Applications for the Additional (Induced) Demand for Immigrant Visas

10 year Costs Undiscounted ...... $143,931,692 $287,854,640 $431,775,838 $518,143,249 Total 10 year Costs Discounted at 7% ...... 106,881,772 213,757,395 320,631,489 384,766,730 Total 10 year Costs Discounted at 3% ...... 125,678,197 251,348,945 377,018,045 452,432,274

Total Costs to New Applicants

10 year Costs Undiscounted ...... $270,677,572 $447,867,695 $625,058,617 $731,389,326 Total 10 year Costs Discounted at 7% ...... 195,997,110 327,576,683 459,156,625 538,116,229 Total 10 year Costs Discounted at 3% ...... 233,800,123 388,519,186 543,238,818 636,084,535

II. Legal Authority would further develop a proposal, were favorable and supported the The Homeland Security Act of 2002, which it would ultimately finalize implementation of the new provisional Public Law 107–296 (Homeland through the rulemaking process. unlawful presence waiver process. A Security Act of 2002), section 102, 116 On January 10, 2012, USCIS few hundred commenters (430) opposed Stat. 2135, 6 U.S.C. 112, and section 103 conducted a stakeholder engagement to the proposed rule, in many instances of the INA, 8 U.S.C. 1103, charge the discuss the Notice of Intent. More than because of a misperception that the Secretary with administration and 900 people participated via telephone provisional unlawful presence waiver enforcement of the immigration and and in person. USCIS provided an process would grant legal status to naturalization laws. The Secretary is overview of how the proposed process aliens not lawfully present in the United implementing this provisional unlawful changes may affect filing and States and allow them to remain in the presence waiver process under the adjudication. USCIS also addressed United States permanently. DHS also broad authority to administer DHS and questions from stakeholders. Topics received 310 comments, some of which the authorities provided under the covered included eligibility, procedures, did not address any aspect of the Homeland Security Act of 2002, the and consequences of an approval or proposed rule or reflect a commenter’s immigration and nationality laws, and denial of a provisional unlawful support or opposition to the proposed other delegated authority. The presence waiver. rule. These 310 commenters also did not make any specific suggestions that Secretary’s discretionary authority to B. Proposed Rule waive the ground of inadmissibility for related to the proposed rule. Finally, On April 2, 2012, DHS published a DHS received a comment in the form of unlawful presence can be found in INA proposed rule in the Federal Register, section 212(a)(9)(B)(v), 8 U.S.C. a petition signed by 118,593 individuals proposing to amend the regulations to who opposed the proposed rule; the 1182(a)(9)(B)(v). The regulation revise the process for applying for governing certain inadmissibility signed petition, however, reflected the waivers of inadmissibility. See 77 FR same misperception 2 about the waivers is 8 CFR 212.7. The fee 19902. DHS received over 4,000 public schedule for provisional unlawful provisional unlawful presence waiver comments to the proposed rule. process as seen in some of the presence waiver applications is found at Comments were submitted by 8 CFR 103.7(b)(1)(i)(AA). comments from others who opposed the individuals, immigrant advocacy rule. groups, attorneys, accredited III. Background In preparing this final rule, DHS representatives, religious organizations considered these public comments and A. Notice of Intent and leaders, individuals in academia, other relevant materials contained in the On January 9, 2012, DHS published a Members of Congress, and members of docket. All comments may be reviewed notice in the Federal Register— the media. Some comments also were at the Federal Docket Management Provisional Waivers of Inadmissibility submitted through mass mailing System (FDMS) at http:// for Certain Immediate Relatives of U.S. campaigns or petitions, expressing Citizens, 77 FR 19902 (Jan. 9, 2012)— support for, or opposition to, the 2 The petition incorrectly summarized the announcing its intent to change the provisional unlawful presence waiver substance and nature of the proposed rule. The current process for certain applications process. DHS counted each petition or petition also erroneously concluded that the for waivers of inadmissibility filed in mass mailing as one comment, but provisional unlawful presence waiver process connection with an immediate relative acknowledged the number of signatures granted aliens not lawfully present in the United States a temporary legal status in the United States immigrant visa application. The notice associated with each comment. and put them on the ‘‘fast track’’ to permanent legal explained the proposed process that Opinions on the proposed rule varied. status—neither of which can occur under this final DHS was considering and that DHS A large number of comments (3,442) rule.

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www.regulations.gov, docket number be separated from the U.S. citizen Executive Branch, to create immigration USCIS–2012–0003. petitioner. Many also agreed that it laws and policy. DHS disagrees with the would relieve the financial burdens that view that this rule exceeds the C. Final Rule the current process places on American Secretary’s legal authority. This final rule adopts most of the families, encourage individuals to Congress has plenary authority over regulatory amendments set forth in the obtain a lawful status, and benefit the immigration and naturalization and, proposed rule without change. The United States generally. Numerous through its legislative power, may enact rationale for the proposed rule and the commenters shared their personal legislation establishing immigration law reasoning provided in its preamble stories about the hardships they and policy. See, e.g., Arizona v. United remain valid with respect to these experienced after being separated from States, 132 S. Ct. 2492, 2498 (2012) regulatory amendments. DHS also has their loved ones, and applauded DHS (‘‘The Government of the United States made several clarifying changes to the for taking a step to reduce such has broad, undoubted power over the regulatory text, based on suggestions scenarios in the future. subject of immigration and the status of from commenters and on policy Several commenters strongly aliens. This authority rests, in part, on decisions made after publication of the disagreed with the proposed provisional the National Government’s proposed rule. The changes to the unlawful presence waiver process, constitutional power to ‘establish an regulatory text are summarized in arguing that the Executive Branch did uniform Rule of Naturalization,’ U.S. Section V below. This final rule also not have the legal authority to make the Const., Art. I, § 8, cl. 4, and its inherent adopts, without change, the regulatory proposed changes without approval power as sovereign to control and amendment clarifying 8 CFR 212.7(a)(1) from Congress. Other commenters conduct relations with foreign and (3). This final rule does not address argued that the proposed rule was nations.’’) (citations omitted); see also comments seeking changes in U.S. laws, unconstitutional. Many commenters Fiallo v. Bell, 430 U.S. 787, 792 (1977). regulations, or agency policies that are who opposed the change believed that The Executive Branch, which includes unrelated to the provisional unlawful the current immigration laws are not DHS, is charged with implementing the presence waiver process or the properly enforced and that DHS favors laws passed by Congress. Through clarifying amendments to 8 CFR illegal aliens over legal immigrants. section 102 of the Homeland Security 212.7(a). This final rule also does not Some commenters also believed that Act of 2002, 106 Stat. 2135, 6 U.S.C. change the procedures or policies of DHS was rewarding illegal behavior by 112, and INA section 103, 8 U.S.C. 1103, other DHS components or federal publishing this rule. These commenters Congress has specifically charged the agencies, or resolve issues outside the stated that this rule would only Secretary with the administration and scope of this rulemaking. After assessing encourage illegal immigration and enforcement of the immigration and the effectiveness of the provisional fraud, would be harmful to the naturalization laws. The Secretary is unlawful presence waiver process and American economy, and that the authorized to promulgate rules and its operational impact, DHS, in Federal Government’s money would be ‘‘perform such other acts as he deems consultation with DOS and other better invested in assisting U.S. citizens necessary for carrying out his authority’’ affected agencies, will consider and legal immigrants, rather than illegal based upon considerations rationally expanding the provisional unlawful aliens and their U.S. citizen families. A related to the immigration laws. INA presence waiver process in the future. few commenters opposed the proposed section 103(a)(3), 8 U.S.C. 1103(a)(3). IV. Public Comments on the Proposed rule because they believed that it is The Secretary has broad discretion to Rule 3 unfair to exclude individuals outside determine the most effective way to the United States from eligibility for the administer the laws. See, e.g., Narenji v. A. Summary of Public Comments proposed provisional unlawful presence Civiletti, 617 F.2d 745, 747 (D.C. Cir. The 60-day public comment period waiver process or because the 1979) (observing that the INA ‘‘need not for the proposed rule ended on June 1, requirements articulated in the rule (for specifically authorize each and every 2012. Commenters included example, the lack of protection from action taken by the Attorney General individuals, immigrant advocacy removal) were too stringent or not [(now Secretary of Homeland Security)], groups, attorneys, and accredited helpful. so long as his action is reasonably representatives, as well as religious DHS has reviewed all of the public related to the duties imposed upon organizations and leaders, individuals comments received in response to the him’’); see also Arizona, 132 S. Ct. at in academia, Members of Congress, and proposed rule and addresses them in 2499 (noting ‘‘broad discretion members of the media. Some comments this final rule. DHS’s responses are exercised by immigration officials’’ also were submitted through mass grouped by subject area, with a focus on under the immigration laws). mailing campaigns or petitions, the most common issues and The provisional unlawful presence expressing support for, or opposition to, suggestions raised by the commenters. waiver process is not a substantive the provisional unlawful presence DHS received few or no comments on change to the immigration laws but a waiver process. The majority of the following topics: (1) The rejection procedural change in the way that a comments came from supporters of the criteria, (2) withdrawals, and (3) the specific type of waiver application can proposed rule who agreed that it would validity of an approved provisional be filed with USCIS. Generally, promote family unity and reduce the unlawful presence waiver. individuals who are required by law to length of time immediate relatives obtain a waiver of inadmissibility must B. Legal Authority To Implement the apply for the waiver through the (spouses, children, and parents of a U.S. Provisional Unlawful Presence Waiver citizen over the age of 21 years) would procedures prescribed by the Secretary, Process as permitted under the Homeland 3 USCIS received some comments prior to the Several commenters questioned Security Act and the INA. Current official comment period, including two letters DHS’s legal authority to implement the waiver filing procedures for an signed by over 200 immigrant advocate provisional unlawful presence waiver individual processing an immigrant visa organizations. Most of the concerns or suggestions process. Commenters argued that the application abroad at a consular post made by the pre-publication commenters were captured through other public comments submitted proposed rule was unconstitutional and require the individual to apply for a during the official period. that it was the role of Congress, not the waiver of grounds of inadmissibility

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while outside the United States and the provisional unlawful presence visas for this category are always after his or her immigrant visa waiver process to immediate relatives. available, but also because it is interview. Under this final rule, DHS is The Congressional commenters stated consistent with Congress’ policy choice permitting a category of aliens—certain that it was unambiguous that Congress to prioritize family reunification of immediate relatives of U.S. citizens who intended the unlawful presence waiver immediate relatives of U.S. citizens over will be pursuing an immigrant visa under section 212(a)(9)(B)(v), 8 U.S.C. other categories of aliens. For example, application at a consular post abroad— 1182(a)(9)(B)(v), to be available to family-sponsored and employment- to file an application for a provisional immediate relatives and certain based categories have annual numerical unlawful presence waiver of preference aliens, including unmarried limits, whereas there are no numerical inadmissibility due to unlawful adult children of U.S. citizens and LPR limits on the availability of immigrant presence under INA section spouses and children. The visas to immediate relatives. Compare 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i), Congressional commenters thought that INA section 201(b)(2)(A)(i), 8 U.S.C. while still in the United States. By DHS’s distinction could not be justified 1151(b)(2)(A)(i), with INA section creating these new filing procedures, based on DHS’s reading of congressional 203(a), (b), 8 U.S.C. 1153(a), (b). DHS anticipates that the immigrant visa intent. Instead, the Congressional Focusing on U.S. citizens as part of this waiver process will become more commenters argued that DHS would be discretionary process also is consistent efficient for the U.S. Government and ignoring clear congressional intent and with permissible distinctions that may for U.S. citizens and their immediate cause the provisional unlawful presence be drawn between U.S. citizens and relatives. It will reduce the length of waiver process to be underutilized by aliens and between classes of aliens in time American families are separated entire categories of persons for whom immigration laws and policies. See, e.g., while the immigrant visa applicant is the waiver is now available. Finally, Fiallo, 430 U.S. at 792; Mathews v. Diaz, going through the immigrant visa many commenters believed that 426 U.S. 67, 81 (1976). process. The applicant may remain in expanding the provisional unlawful DHS also believes that focusing the the United States with his or her family presence waiver process to preference provisional unlawful presence waiver until the time the applicant must depart categories would offer more measurable process on immediate relatives of U.S. from the United States to attend his or benefits to USCIS and DOS and would citizens is consistent with recognized her immigrant visa interview. facilitate legal immigration by government interests in encouraging encouraging a more sizeable population eligible long-time LPRs to naturalize so C. Eligibility for the Provisional to seek to adjust their status. Unlawful Presence Waiver that their spouses, parents, and children Suggestions for additional eligibility under the age of 21 years can become 1. Preference Categories criteria or categories of eligible aliens immediate relatives and also benefit varied but most commenters asked DHS from this new process. See, e.g., City of A large number of commenters to consider expanding eligibility to: (1) Chicago v. Shalala, 189 F.3d 598, 608 focused on who is eligible to participate All preference categories generally; (2) (7th Cir. 1999). in the provisional unlawful presence unmarried sons and daughters of U.S. waiver process. Some commenters citizens who are over the age of 21 Family-sponsored and employment- believed the proposed rule was too years; (3) married sons and daughters or based preference categories have annual restrictive and excluded many siblings of U.S. citizens; (4) spouses and numerical limits. Therefore, preference individuals who also could benefit from minor children of LPRs; (5) parents of categories carry an inherent risk that the new process. Others asked why DHS minor U.S. citizen children; (6) children they may become oversubscribed; if an was not expanding eligibility to all who were brought to the United States individual’s immigrant visa is based families and their close immediate or when young, such as those aliens who upon a preference category, his or her distant relatives such as in-laws, would qualify under the proposed immigrant visa may become unavailable grandparents, aunts and uncles. The Development, Relief and Education for at any given time upon oversubscription commenters also asked why DHS did Alien Minors (DREAM) Act 4; (7) of the preference category. Retrogression not include all family-sponsored or preference aliens who have lived in the of visa availability can have a direct, employment-based immigrants, United States for more than 10 years; (8) adverse impact on agency backlogs and especially if aliens in a particular family members of personnel in the U.S. processing. immigrant visa category had current Armed Forces, including the National DHS appreciates the comments from visa availability. The commenters Guard, reserves, and veterans; and (9) the public on these issues and has given argued that there was no discernible any preference category with current them serious consideration. DHS will difference between immediate relatives visa availability. consider future expansion of the and preference aliens who have current The focus of the provisional unlawful program after DHS and DOS have visa availability. The commenters also presence waiver process is to reduce the assessed the effectiveness of the indicated that the hardships of lengthy impact of the current waiver process on provisional unlawful presence waiver family separation are just as compelling U.S. citizens by reducing the time U.S. process and the operational impact it for LPR families as they are for U.S. citizens are separated from their may have on existing agency processes citizen families. The commenters also immediate relatives. DHS chose to limit and resources See Beach Commc’ns v. asked that, if DHS will not expand the eligibility to immediate relatives of U.S. FCC, 508 U.S. 307, 316 (1993) provisional unlawful presence waiver citizens not only because the immigrant (observing that policymakers ‘‘must be process to all LPR families, DHS should allowed leeway to approach a perceived at least consider expanding the 4 The DREAM Act, a bill that aims to permit problem incrementally’’). For these provisional unlawful presence waiver children of undocumented immigrants, who were reasons, DHS has not adopted the brought to the United States at a young age, to process to LPRs who have U.S. citizen obtain a legal status if they meet certain criteria. commenters’ suggestions. At this time, children. Versions of the DREAM Act have been introduced the provisional unlawful presence Several Congressional commenters and reintroduced on several occasions, including waiver process will remain available argued that there was no compelling, most recently in May 2011, but none has passed only to individuals who are immediate Congress to date. See, e.g., Development, Relief and legal, operational or other rationale that Education for Alien Minors Act of 2011, S. 952, relatives of U.S. citizens (i.e., spouses, would justify DHS’s decision to limit 112th Cong. children, and parents (if the U.S. citizen

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is at least 21 years of age)), as defined return to the United States. Centralizing purpose for creating the provisional in INA section 201(b), 8 U.S.C. 1151(b). Form I–601 filings in this manner also unlawful presence waiver process is to will significantly reduce the current reduce the amount of time U.S. citizens 2. Aliens Outside the United States backlog that exists at USCIS are separated from their immediate Numerous commenters asked DHS to international offices. In addition, as of relatives. Focusing on hardship to U.S. extend eligibility to individuals who are June 4, 2012, when USCIS began to citizens is consistent with permissible currently outside the United States. implement centralized filing of Forms I– distinctions that may be drawn between Commenters argued that immediate 601 for individuals outside of the U.S. citizens and aliens. It also is relatives who had already departed from United States, USCIS had approximately consistent with the Secretary’s authority the United States to consular process or 10,200 cases pending. USCIS has to administer the immigration laws and who voluntarily left the United States to dedicated additional resources on a determine the most efficient means for avoid the consequences of removal temporary basis to expeditiously effectuating the provisional unlawful should not be punished for their process the cases filed prior to presence waiver process. See 77 FR at actions. Some commenters also felt that centralization, as well as those that 19908. Finally, DHS cannot include it was unfair to speed up the process for individuals continue to file at the USCIS children as qualifying relatives for individuals residing illegally in the Field Office in Ciudad Juarez, Mexico purposes of the extreme hardship United States, while not doing anything through December 4, 2012.6 USCIS determination because the statute only for those individuals who departed the anticipates that it will complete permits a showing of extreme hardship United States voluntarily to comply processing of all cases pending in to a spouse or parent as a basis for with the rules. Many commenters USCIS offices abroad within granting the waiver. See INA section shared their personal stories about the approximately six months of the 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). difficulties of long-term separation from effective date of this rule. Only Congress has the power to amend their spouses and the impact it had on For these reasons, DHS did not adopt the immigration laws to add other them and their children. Most the commenters’ suggestions, and individuals who can be qualifying commenters wanted their family individuals who are already outside of relatives for purposes of the extreme members abroad to have the opportunity the United States must pursue a waiver hardship determination. to participate in a faster, more effective of inadmissibility through the current DHS is open to considering expanding process or for DHS to at least provide Form I–601 process. The provisional the provisional unlawful presence some other form of relief to overcome unlawful presence waiver process will waiver process to include lawful the effects of the 3-year and 10-year bars remain available only to those permanent residents as qualifying for these individuals. individuals who are currently in the relatives after DHS has a better DHS recognizes that there are many United States and will be departing for understanding of the impact of the difficulties faced by U.S. citizens when consular processing abroad. provisional unlawful presence waiver their immediate relatives must obtain process on agency resources and waivers while outside the United States. 3. Aliens Who Cannot Establish Extreme operations. DHS, however, believes that creating a Hardship to a U.S. Citizen Spouse or provisional unlawful presence waiver Parent 4. Aliens in Removal Proceedings process abroad would be duplicative of Several commenters objected to the Numerous commenters asked DHS to DOS’s current immigrant visa processes exclusion from the provisional unlawful expand eligibility for the provisional and USCIS’s current Form I–601, presence waiver process of immediate unlawful presence waiver to include Application for Waiver of Grounds of relatives of U.S. citizens who could aliens in removal proceedings. Some Inadmissibility waiver process, which establish extreme hardship only to an commenters suggested that DHS include would not be an efficient use of agency LPR spouse or parent. Commenters anyone who is in removal proceedings, resources. argued that this restriction limited the without further qualifications. Others To alleviate some of the delays in number of individuals who could suggested that DHS include aliens in overseas waiver processing, USCIS benefit from the provisional unlawful removal proceedings if they: (1) Were recently centralized Form I–601 filings presence waiver process and that there granted prosecutorial discretion; (2) such that individuals located outside was no rational basis for the limitation. were the primary caretakers for U.S. the United States now file the Form I– Some also believed that applicants will citizens; (3) were previously granted 601 in the United States where USCIS submit ‘‘weak’’ extreme hardship claims voluntary departure; or (4) had their has sufficient resources at its service relating to a qualifying U.S. citizen cases administratively closed. centers to accommodate filing surges.5 relative when the real hardship would Commenters also believed that the Applicants who need waivers are no be to an LPR spouse or parent. provisional unlawful presence waiver longer required to schedule a ‘‘waiver Commenters also asked that DHS allow process undermines DHS’s ongoing filing’’ appointment with the U.S. individuals to make a showing of prosecutorial discretion initiative. A few Embassy or consulate, which in some extreme hardship to their U.S. citizen commenters also said DHS should cases required applicants to wait up to children. eliminate the requirement that aliens two months just for these waiver filing DHS has carefully considered these with administratively closed cases appointments. Centralization of Form I– comments and the recommended pursue voluntary departure because it 601 filings from abroad should changes. However, DHS will not adopt was too complicated and could result in significantly reduce the time the suggested changes at this time. As separation from a U.S. citizen spouse, individuals must spend abroad, waiting stated in the proposed rule, a primary parent, or child if the alien fails to to receive immigrant visas so they can comply with the terms and conditions 6 USCIS provided a transition period during of voluntary departure. Several 5 As of June 4, 2012, most individuals abroad, which individuals who are processing their commenters criticized the use of who have applied for certain visas and have been immigrant visa applications through the U.S. voluntary departure, arguing that the found inadmissible by a DOS consular officer, must consulate in Ciudad Juarez, Mexico, could file their mail Forms I–601 directly to a USCIS Lockbox I–601 applications either with the Lockbox facility time frames for voluntary departure in facility. For more information, please visit the or at the USCIS Ciudad Juarez Field Office. This many instances would be too short (60 USCIS Web site at www.uscis.gov. transition period ended on December 4, 2012. or 120 days) to cover the time needed

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for the adjudication of the Form I–601A result in the alien being barred under 8 removal proceedings are terminated or and the time the applicant needs to CFR 212.7(e)(3)(v), because the removal dismissed may experience delays in prepare for departure after approval of proceedings would still be pending and their immigrant visa processing or risk the provisional unlawful presence not ‘‘terminated or dismissed.’’ The becoming ineligible for the immigrant waiver request. Other commenters commenter also recommended that the visa based on another ground of suggested that DHS include any alien final rule make clear that USCIS can inadmissibility, such as INA section who has been issued a Notice to Appear only accept a provisional unlawful 212(a)(6)(B), 8 U.S.C. 1182(a)(6)(B) (NTA). They reasoned that, if the presence waiver once DHS, through (failure to attend a removal proceeding purpose of the provisional unlawful ICE’s Office of Chief Counsel, without reasonable cause), or INA presence waiver is to avoid hardship to affirmatively consents to it in the section 212(a)(9)(A), 8 U.S.C. U.S. citizens, it should make no removal proceedings. 1182(a)(9)(A) (aliens who have been difference whether or not an NTA has After careful consideration of all ordered removed or who depart from been issued. One commenter also comments on this issue, DHS has the United States while an order of requested that DHS allow individuals decided to limit eligibility for the removal is outstanding). See Matter of who have a fear of returning to their provisional unlawful presence waiver Sanchez-Herbert, 26 I&N Dec. 43 (BIA home countries to participate in the process to individuals whose removal 2012) (holding that an IJ is required to provisional unlawful presence waiver proceedings are administratively closed issue an in absentia removal order process. and have not been recalendared at the (rather than terminating proceedings) Several immigrant advocacy groups time of filing the Form I–601A. Under even though the alien previously had asked DHS to allow individuals to file its prosecutorial discretion (PD) departed from the United States, if the the provisional unlawful presence policies, ICE has been reviewing cases alien had proper notice of the hearing waiver application before termination of pending before EOIR and all incoming and DHS establishes the alien’s removal proceedings or a grant of cases to ensure that they are aligned removability). ICE intends to work with voluntary departure. The commenters with the agency’s civil enforcement individuals to facilitate the timely argued that allowing individuals to priorities and that ICE is effectively termination or dismissal of an apply for the provisional unlawful using its finite resources. For cases that individual’s removal proceedings once presence waiver while still in ICE determines are not enforcement he or she obtains a provisional unlawful proceedings would ensure that USCIS, priorities, it exercises its discretion presence waiver. and not U.S. Immigration and Customs where appropriate, typically by moving Focusing on this subset of aliens in Enforcement (ICE) or U.S. Customs and for administrative closure. See removal proceedings is consistent with Border Protection (CBP), is the first Memorandum by ICE Director John T. the Department’s established agency to determine if an applicant Morton in his June 17, 2011 enforcement priorities. Individuals who qualifies for the waiver. If the memorandum and the subsequent received administrative closure are applicant’s provisional unlawful November 17, 2011 directive from Peter likely individuals whom ICE or EOIR presence waiver is approved, then the S. Vincent, Principal Legal Advisor to has determined, on a case-by-case basis applicant could seek termination or all attorneys at the ICE Office of Chief or as a matter of policy, to be non- dismissal of his or her case. The Counsel. DHS, however, is not limiting enforcement priorities. This includes advocacy groups stated that many eligibility solely to cases individuals whose cases are deferred individuals subject to removal, whether administratively closed under the ICE through the DACA process. Given that detained or non-detained, were case-by-case review initiative, but also these individuals have been determined unrepresented and could be confused by is allowing any alien whose case is to not be enforcement priorities because the various barriers to filing the administratively closed and has not of their compelling equities (e.g., their provisional unlawful presence waiver been recalendered at the time of filing long-term presence in the United States application. They also argued that the Form I–601A to participate in the or their connection to U.S. citizen allowing an individual to file the provisional unlawful presence waiver relatives), DHS determined that they provisional unlawful presence waiver process. In addition, individuals in should be able to participate in the application while proceedings are removal proceedings whose cases are provisional unlawful presence waiver pending would ensure that deferred pursuant to the Deferred process. DHS may consider expanding unrepresented aliens are not left with Action for Childhood Arrivals (DACA) 7 eligibility for the provisional unlawful having to choose between seeking process may also request that ICE seek presence waiver process to other subsets avenues of relief in removal proceedings administrative closure once USCIS of aliens in removal proceedings in the and pursuing an immigrant visa abroad. defers action in their cases. future and after implementation of this Finally, one commenter asked DHS to If the Form I–601A is approved for an final rule. clarify the three options noted in the alien whose proceedings have been Aliens whose cases are deferred, proposed rule at 8 CFR 212.7(e)(3)(v) administratively closed, the alien whether authorized by ICE or by USCIS through 212.7(e)(3)(vii) (i.e., should seek termination or dismissal of through approval of a Form I–821D, termination/dismissal, cancellation of the proceedings, without prejudice, by Consideration of Deferred Action for NTA, administrative closure with EOIR. The request for termination or Childhood Arrivals, must meet all voluntary departure) for aliens in dismissal should be granted before the requirements under 8 CFR 212.7(e) to removal proceedings. The commenter alien departs for his or her immigrant receive a provisional unlawful presence noted that two of the provisions, 8 CFR visa interview abroad. Applicants who waiver. Deferred action does not 212.7(e)(3)(v) (termination/dismissal) leave the United States before their override or modify the eligibility and 212.7(e)(3)(vii) (administrative requirements specified in this final rule. closure with voluntary departure) in the 7 On June 15, 2012, the Secretary of Homeland Thus, aliens whose cases have been proposed rule, conflicted because aliens Security issued a memorandum to USCIS, CBP, and deferred but have final orders of who chose to pursue voluntary ICE, regarding the exercise of prosecutorial removal or other grounds of discretion with respect to certain individuals who departure would need to have their came to the United States as children. See the inadmissibility beyond unlawful cases recalendared before an IJ. USCIS Web site—www.uscis.gov—for more presence will remain ineligible for a Recalendaring of the alien’s case would information about the DACA process. provisional unlawful presence waiver.

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5. Aliens With Final Orders of Removal admitted is inadmissible under INA application packet to the approved and Previously Removed section 212(a)(9)(C), 8 U.S.C. provisional unlawful presence waiver. Numerous commenters requested that 1182(a)(9)(C), and may have his or her One commenter suggested that aliens DHS allow aliens with final orders of final order of removal reinstated under should be allowed to resubmit the removal to participate in the provisional INA section 241(a)(5), 8 U.S.C. immigrant visa application package to unlawful presence waiver process. The 1231(a)(5). The provisional unlawful the NVC so that they could file the commenters offered a variety of presence waiver is only available to an provisional unlawful presence waiver suggestions, many of which came out of alien who, upon departure from the application. Some commenters also their own personal circumstances. For United States, would be inadmissible asked DHS to give individuals still in example, some commenters suggested only due to accrual of unlawful the United States the option to either that DHS include aliens with final presence under INA section postpone their immigrant visa removal orders who: (1) Are currently 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i). interviews so they could file the detained pending removal; (2) had their Thus, a large percentage of aliens in provisional unlawful presence waiver or removal orders temporarily suspended; removal proceedings will not be eligible proceed with consular processing. Several commenters were concerned (3) are still in the United States and had for a provisional unlawful presence that the time periods for filing and final orders of removal issued within waiver. As a result, DHS has concluded adjudication of a provisional unlawful the last five to 10 years or, alternatively, that, because the success of this new provisional unlawful presence waiver presence waiver application, filing of issued more than 10 years ago; (4) were process relies on its efficient, the immigrant visa application, and determined by DHS to warrant a streamlined approach and close DOS scheduling of the immigrant visa favorable exercise of prosecutorial coordination with the NVC, the interview were too short. The discretion; (5) were previously granted provisional unlawful presence waiver commenters believed that it created voluntary departure; (6) were granted process will not be expanded to include timing issues for immigration law voluntary departure but overstayed by aliens with final removal orders. practitioners in terms of advising their 10 years; (7) are subject to in absentia clients on filing the Form I–601A and final orders of removal due to 6. Aliens With Scheduled Immigrant paying the immigrant visa fee. The ineffective assistance of counsel; (8) Visa Interviews commenters stated that once the have been removed for a noncriminal Several commenters asked DHS to immigrant visa fee was paid, DOS ground of inadmissibility; (9) have include aliens in the provisional would schedule the immigrant visa obtained advanced consent to reapply unlawful presence waiver process interview potentially before USCIS for admission to the United States; or regardless of whether they had an adjudicated the Form I–601A and, as a (10) were previously removed, immigrant visa interview scheduled in result, the applicant would be ineligible regardless of whether the alien is abroad the past. Several commenters objected for the provisional unlawful presence or still inside the United States. A few to this ground of ineligibility, arguing waiver. Finally, one commenter commenters indicated that those with that it was irrational and served no requested that DHS implement a grace final orders of removal should be purpose or was arbitrary, capricious and period of at least one year after included if they are married to U.S. cruel. Several commenters stated that publication of the final rule during citizens and have children. Most many individuals already had cancelled which applicants who had scheduled commenters stated that U.S. citizen their immigrant visa interviews after immigrant visa interviews could family members of aliens with final publication of the Notice of Intent on participate in the provisional unlawful orders of removal face the same January 9, 2012 (77 FR 19902). An presence waiver process. hardships as those with relatives subject immigrant advocacy group asked DHS DHS disagrees that limiting eligibility to inadmissibility based on unlawful to include applicants with previously to aliens who have not had their presence in the United States. scheduled interviews. The group immigrant visa interviews scheduled DHS considered these suggestions and acknowledged that allowing such has no rational basis. DHS considered a has concluded that it will not expand applicants to reschedule immigrant visa number of criteria and restrictions to the provisional unlawful presence interviews would create an additional make the process operationally waiver process to include aliens with administrative burden on DOS, but manageable without creating delays in final removal orders. Generally, aliens believed that it would ensure equity processing of other petitions or who have outstanding final orders of among those immediate relatives applications filed with USCIS or in the removal may be inadmissible on a seeking to legalize their status while DOS immigrant visa process. By variety of grounds other than unlawful minimizing the length of time they are including aliens who were scheduled presence, such as criminal offenses (INA separated from their families. The for an interview prior to the date of section 212(a)(2), 8 U.S.C. 1182(a)(2)) advocacy group also believed that publication of this final rule, the and fraud and misrepresentation (INA failure to include this group would only projected volume of cases could section 212(a)(6)(C), 8 U.S.C. create confusion and ultimately significantly increase and would create 1182(a)(6)(C)). In addition, any alien ineligibility for the very individuals backlogs not only in the provisional who is subject to a final order of who the rule is supposed to help. unlawful presence waiver process, but removal, decides to leave the United Several commenters suggested that also in adjudication of other USCIS States, and subsequently seeks DOS return the immigrant visa benefits. The increased volume would admission, is inadmissible as an alien application packet to the NVC once an also adversely impact DOS and their with a prior removal under INA section alien files a provisional unlawful immigrant visa process. 212(a)(9)(A), 8 U.S.C. 1182(a)(9)(A). presence waiver. Another commenter For these reasons, DHS will not Similarly, any alien who has been suggested that the petitioner should be expand the provisional unlawful ordered removed or who has been allowed to fly to the consulate abroad, presence waiver to include individuals unlawfully present in the United States retrieve the immigrant visa application whose immigrant visa interviews were for an aggregate period of a year or more packet, and return it to the NVC so DHS scheduled before the date of publication and subsequently attempts to enter or could adjudicate the waiver and the of this final rule January 3, 2013. DHS reenter the United States without being NVC could match the immigrant visa now adds language to the final rule to

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clarify when an alien is ineligible for a I–601A will be rejected and returned to application if USCIS has a ‘‘reason to provisional unlawful presence waiver the applicant with the associated filing believe’’ that the alien will be because of a previously scheduled and biometric fees or denied. The Form inadmissible on grounds other than immigrant visa interview. I–601A will be rejected even if the unlawful presence. The commenters USCIS will first look at whether the applicant’s interview is rescheduled argued that DHS should not deny a scheduled immigrant visa interview is after the date of publication of this final provisional unlawful presence waiver based on the approved immediate rule. USCIS will verify with DOS simply because DHS has reason to relative petition (I–130 or I–360) that whether the applicant’s immigrant visa believe that the applicant was convicted accompanies the Form I–601A. If it is, interview was scheduled before the date of a crime, especially since some crimes USCIS will then look at the Department of publication of this final rule. are not automatic bars to admission to of State’s Consular Consolidated the United States in a lawful 7. Aliens With Other Grounds of Database (CCD) to determine the date on immigration status and, upon further Inadmissibility which the Department of State initially review, would not be considered acted to schedule the applicant for his Several commenters asked DHS to convictions or criminal offenses for or her immigrant visa interview (i.e., the consider expanding the provisional immigration purposes. date of scheduling itself and not the unlawful presence waiver process to DHS has considered these comments date and time the applicant must appear include additional grounds of but will not adopt the suggested for the interview). inadmissibility and the waivers changes. The goal of the provisional If the date that the Department of associated with such grounds. These unlawful presence waiver process is to State initially acted to schedule the commenters specifically referenced facilitate immigrant visa issuance for immigrant visa interview is prior to the waivers such as the waiver for certain immediate relatives of U.S. citizens who date of publication of this final rule, criminal grounds of inadmissibility are otherwise admissible 8 to the United January 3, 2013, then the alien is under INA section 212(h), 8 U.S.C. States except for the 3-year and 10-year ineligible to apply for a provisional 1182(h), for fraud and misrepresentation unlawful presence bars, which are unlawful presence waiver. If the date under INA section 212(i), 8 U.S.C. triggered upon departure from the that Department of State initially acted 1182(i), and for alien smuggling under United States. DOS, not USCIS, to schedule the immigrant visa INA section 212(d)(11), 8 U.S.C. determines if an immigrant visa interview is on or after the publication 1182(d)(11). Some commenters applicant is eligible for an immigrant date of this final rule, the alien is suggested that DHS include any waiver visa and whether there are any grounds eligible to apply for a provisional that has the same extreme hardship of inadmissibility that may bar issuance unlawful presence waiver. The actual standard into the provisional unlawful of the immigrant visa. If USCIS were to date and time that the alien is scheduled presence waiver process. Other consider other grounds of to appear for the interview is not commenters believed that it would be inadmissibility beyond unlawful relevant for the eligibility more efficient to resolve all grounds of presence, it would create backlogs in the determination. This rule applies even if inadmissibility at the same time. They adjudication of the provisional unlawful the alien failed to appear for his or her suggested that DHS include all grounds presence waivers and, in turn, adversely interview, cancelled the interview, or of inadmissibility that can be waived impact DOS’s immigrant visa process. In requested that the interview be and currently appear on the Form I–601. particular, to assess an application for a rescheduled. Therefore, USCIS may The commenters believed this change waiver of inadmissibility based on reject or deny any Form I–601A filed by would alleviate the need for aliens to fraud, misrepresentation, or criminal an alien who USCIS determines that the file multiple waiver requests at the time history, an individual generally must Department of State, prior to the date of of their immigrant visa interviews. undergo vetting through an in-person publication of this final rule, initially Several commenters stated that an interview at a USCIS Field Office. Since acted to schedule the alien’s immigrant individual should not be precluded DOS already conducts an in-depth in- visa interview for the approved from filing a provisional unlawful person interview as part of the immediate relative petition upon which presence waiver application if the immigrant visa process, DHS believes the Form I–601A is based. See section individual: (1) Was previously arrested, that such a full review by USCIS would 212.7(e)(4)(iv). especially if there was no conviction or be duplicative of DOS’s efforts. An alien who is ineligible to apply for the conviction was for a crime involving DHS, however, intends to uphold its a provisional unlawful presence waiver moral turpitude (CIMT) that meets the responsibility to protect the integrity because of a previously scheduled petty offense exception under INA and security of the immigration process immigrant visa interview may still section 212(a)(2)(A)(ii), 8 U.S.C. by conducting full background and qualify for a provisional unlawful 1182(a)(2)(A)(ii); (2) violated his or her security checks to assess whether an presence waiver if he or she has a new status; (3) worked without individual may be a threat to national DOS immigrant visa case because (1) authorization; or (4) made a false claim security or public safety. To maintain a DOS terminated the immigrant visa to U.S. citizenship under INA section streamlined process, USCIS will, registration associated with the 212(a)(6)(C)(ii), 8 U.S.C. however, only conduct a limited review previously scheduled interview, and 1182(a)(6)(C)(ii). A few commenters also of the waiver application to determine they have a new immediate relative requested that USCIS make an if: (1) The individual has self-reported a petition; or (2) the alien has a new affirmative finding that a specific ground of inadmissibility that would immediate relative petition filed on his ground of inadmissibility does not render him or her ineligible for the or her behalf by a different petitioner. apply to an applicant. The commenters provisional unlawful presence waiver; DHS has clarified the regulatory text requested that such a finding be either at 8 CFR 212.7(e)(4) and (5)(ii) so that persuasive or binding on DOS consular 8 An alien will not be inadmissible for being aliens clearly understand that if the officers. present in the United States without admission or Department of State scheduled the alien Finally, some commenters were parole under INA section 212(a)(6)(A)(i), 8 U.S.C. 1182(a)(6)(A)(i), or for lacking proper immigrant for his or her initial immigrant visa confused about the effect of the entry documents under INA section 212(a)(7)(A), 8 interview prior to the date of provision that allows USCIS to deny a U.S.C. 1182(a)(7)(A), once he or she leaves the publication of this final rule, the Form provisional unlawful presence waiver United States to attend a consular interview.

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(2) the results of the background checks currently registered for TPS under INA children through school; (5) paying reveal conduct or actions that section 244, 8 U.S.C. 1254a, is taxes; (6) being married to a U.S. citizen potentially would make an individual considered to be maintaining lawful or having U.S. citizen children; or (7) ineligible for an immigrant visa; or (3) nonimmigrant status10 for purposes of owning a home. the individual has engaged in activities adjustment of status or change of status. DHS considered a number of criteria that could impact the discretionary See INA section 244(f)(4), 8 U.S.C. and restrictions to make the process determination regarding whether he or 1254a(f)(4). A grant of TPS, however, operationally manageable without she warrants a favorable exercise of does not cure an unlawful entry prior to creating delays in processing of other discretion. If USCIS determines that the alien’s grant of TPS or any unlawful petitions or applications filed with there is reason to believe that the alien presence the alien may have accrued USCIS or in the DOS/NVC immigrant may be inadmissible to the United prior to being granted TPS. See Serrano visa process. DHS, however, did not States at the time of his or her v. U.S. Att’y Gen., 655 F.3d 1260 (11th adopt these limitations or restrictions. immigrant visa interview based on Cir. 2011). If the TPS beneficiary needs The commenters’ suggestions are another ground of inadmissibility other a waiver of inadmissibility for unlawful already part of the overall analysis of than unlawful presence, USCIS will presence, that alien is in the same whether an individual warrants the deny the request for the provisional position as any other alien who needs grant of the provisional unlawful unlawful presence waiver. USCIS’s a waiver of inadmissibility under INA presence waiver as a matter of determination on the provisional section 212(a)(9)(B)(v), 8 U.S.C. discretion. The factors that play into the unlawful presence waiver is not a 1182(a)(9)(B)(v), at the time of the discretionary analysis are not limited to conclusive finding of inadmissibility. It immigrant visa processing abroad. As a one particular set of factors, see, e.g., also is not an assessment of whether a result, TPS applicants who are Matter of Cervantes-Gonzalez, 22 I. & N. particular crime or pattern of conduct immediate relatives of U.S. citizens can Dec. 560, 566 (BIA 1999); as part of the would ultimately bar an individual from participate in the provisional unlawful application for provisional unlawful obtaining a legal status under the presence waiver process if they are presence waiver, an applicant should immigration laws. pursuing consular processing of an set forth any favorable discretionary Aliens who may have other grounds immigrant visa abroad. factor he or she considers relevant to the of inadmissibility are not precluded 9. Additional Eligibility Criteria adjudication. By setting restrictions on from obtaining a waiver of such grounds the number of years of unlawful (if permitted by law) and ultimately an A few commenters suggested that presence or the date when an individual immigrant visa. The individual can file DHS consider limiting or adding married the U.S. citizen, DHS would a Form I–601, Application for Waiver of eligibility criteria to better prioritize exclude a subset of immediate relatives Grounds of Inadmissibility with the aliens who may be eligible for the of U.S. citizens who are or would be USCIS Lockbox, after he or she attends provisional unlawful presence waiver otherwise eligible. DHS, therefore, has the immigrant visa interview and after process. Two commenters suggested not adopted these suggestions and DOS conclusively determines that the that DHS require an individual to have retains the eligibility criteria listed in 8 individual is inadmissible. If the a minimum amount of time in the CFR 212.7(e)(3). ground(s) of inadmissibility identified United States unlawfully (e.g., two, three, or five years) before he or she D. Filing Requirements and Fees by the DOS consular officer can be could file a provisional unlawful waived, the individual can file a Form 1. Concurrent Filing presence waiver. Another commenter I–601 along with any supporting suggested that DHS limit eligibility to Many commenters asked DHS to documentation or evidence needed to aliens who were married to a U.S. allow concurrent filing of the Form I– demonstrate eligibility for the waiver citizen prior to the effective date of this 130 or Form I–360, Form I–601A, and, and ultimately the immigrant visa. final rule. One commenter suggested if needed, the Form I–212, Application 8. Aliens in Temporary Protected Status limiting the eligibility criteria solely to for Permission to Reapply for Admission Into the United States After Several commenters asked DHS to aliens physically present in the United Deportation or Removal. Several clarify how the provisional unlawful States, who are immediate relatives with commenters noted that USCIS does presence waiver process affects aliens in an approved Form I–130, and who are adjudicate some Form I–212s in the Temporary Protected Status (TPS) and at least 17 years of age. Several United States pursuant to the to ensure that such aliens are included commenters suggested that DHS give regulations at 8 CFR 212.2(j) and in in the provisional unlawful presence priority to aliens who are minors and certain cases may grant the Form I–212 waiver process. DHS does not believe aliens who show good moral character, conditionally in anticipation of the these additions to the eligibility criteria have no criminal record, and individual’s departure. Other are necessary. demonstrate that they have been commenters argued that applicants Any alien who meets the productive and responsible as should be allowed to file the provisional requirements of the provisional evidenced by paying taxes, mortgages, unlawful presence waiver at any stage of unlawful presence waiver process and and self-sufficiency. Finally, several immigrant petition or visa process. who is consular processing abroad can commenters requested that DHS base Several commenters said that DHS obtain a provisional unlawful presence approval of the provisional unlawful could avoid duplicating efforts by waiver regardless of the alien’s current presence waiver on factors such as: (1) processing multiple applications at the status in the United States.9 An alien Having good moral character; (2) having no criminal record; (3) not having same time. The commenters believed it 9 USCIS also received two comments asking abused government benefits; (4) putting was inefficient for DHS not to allow whether alien crewman could apply for a concurrent filing and an injustice to provisional unlawful presence waiver. As stated 10 INA section 244(f)(4), 8 U.S.C. 1254a(f)(4), waiver applicants to maintain separate above, any alien in the United States who qualifies provides that, during the period that an alien is processes for the Form I–601A and as an immediate relative and has an approved Form granted temporary protected status, the alien is I–130 or Form I–360 may apply for the provisional considered as being in or maintaining lawful status Form I–212, especially when the unlawful presence waiver, irrespective of his or her as a nonimmigrant for purposes of adjustment or separate processes have the effect of current immigration status, if otherwise eligible. change of status. increasing the time applicants must

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spend outside the United States and concurrent filing of Forms I–601A and through an immigrant visa if eligible for away from their families. The I–212 is permitted, USCIS in each case the provisional unlawful presence commenters asked DHS to at least would have to request and review the waiver; some of these commenters examine the feasibility of concurrently applicant’s A-file—a process that can believed that this fine or fee would help processing these applications before the cause significant delay. This extra reduce the national debt. alien has to leave for his or her procedural step in turn would create Many opponents of the provisional immigrant visa interview. Finally, one significant delays in USCIS processing unlawful presence waiver process commenter suggested that USCIS should of provisional unlawful presence waiver indicated that the costs of allow applicants to submit the Form I– applications. implementation are too expensive and 601A and Form I–212 prior to the filing Second, individuals currently may that the U.S. Government should not of the Form I–130. file an administrative appeal with the spend money on illegal aliens. The DHS has considered these comments Administrative Appeals Office (AAO) of commenters believed that DHS was but believes that concurrent filing, or a decision denying their Form I–212. using tax money to support the new allowing filing of the Form I–601A Consequently, if concurrent filing of process. Additionally, two commenters before the immediate relative petition, Forms I–601A and I–212 is permitted, recommended that DHS establish a would undercut the efficiencies USCIS and the Form I–212 is denied and an premium processing fee to expedite and DOS will gain through the appeal taken, USCIS would have to hold processing of the provisional unlawful streamlined provisional unlawful the applicant’s Form I–601A until the I– presence waiver. The commenters also presence waiver process. Currently, 212 appeal is decided and, if the suggested that DHS give special Form I–130 denials are appealable to the applicant seeks review in federal court, consideration to federal employees and DOJ, EOIR Board of Immigration until the litigation is resolved. The those currently serving in active duty, Appeals (BIA), and if the alien streamlined Form I–601A process is reserve personnel, and veterans of the challenges the denial, USCIS would designed to avoid these extra procedural U.S. Armed Forces. Some commenters either have to hold the provisional steps, which would create backlogs in believed that individuals who did not unlawful presence waivers until the USCIS adjudication of the provisional commit any felonies should not have to Form I–130 was decided on appeal or unlawful presence waiver. pay a fee. Several commenters stated deny the Form I–601A but reopen it if Form I–212 also is used to seek that the filing fee was either too high or the appeal is decided favorably for the consent to reapply to overcome too low. Some commenters stated that alien. Both scenarios are inefficient and inadmissibility for unlawful reentry DHS should permit fee waivers because could cause USCIS to incur additional after a prior immigration violation the fees were too high; others said that costs for storing the provisional under INA section 212(a)(9)(C), 8 U.S.C. DHS should double the fee to offset the unlawful presence waiver applications 1182(a)(9)(C).11 Aliens who are subject costs for implementing the new process and transferring any A-files or receipt to this ground of inadmissibility cannot because the Form I–601A fee was too files between offices until the seek consent to reapply until they have low. Some commenters also indicated administrative appeal process is been outside of the United States that fee waivers would be appropriate complete. DHS developed this continuously for 10 years. Therefore, for aliens seeking the provisional provisional unlawful presence waiver allowing the Form I–212 to be filed unlawful presence waiver because most process in close coordination with DOS concurrently with the Form I–601A of them have low incomes, and that this to ensure that both agencies could might mistakenly imply that those is especially true for aliens who work in efficiently complete the waiver and inadmissible under INA section the agricultural and similar service immigrant visa process concurrently 212(a)(9)(C) can file in the United States sectors and cannot afford to cover the within a short timeframe. Allowing the and at an earlier time. filing costs required by USCIS. Another filing of the Form I–601A after the Form 2. Filing Fees commenter argued that the elimination I–130 or Form I–360 is approved is more of a fee waiver violated the Due Process efficient for USCIS and often is more One commenter stated that applying Clause of the U.S. Constitution’s Fifth efficient for the applicant as well. the current Form I–601 filing fee to the Amendment because it was not Therefore, DHS will not accept Form I–601A was fiscally irresponsible. legislated by Congress as was done in concurrently filed Forms I–130 and I– The commenter argued that DHS does the context of INA section 245(i), 8 601A, or allow for the filing of the Form not know how many provisional U.S.C. 1255(i). Finally, two commenters I–601A before approval of the unlawful presence waivers it will said that the provisional unlawful immediate relative petition. receive or adjudicate and, therefore, presence waiver process was too Moreover, DHS will not permit cannot accurately determine the case expensive and as a result would be at concurrent filing of Forms I–601A and workload or what resources it will need risk for underuse. I–212. While an individual can obtain to cover the actual costs for adjudicating With regard to the immigrant visa fee advance, conditional consent to reapply the Form I–601A. The commenter that must be paid to DOS, several for inadmissibility under INA section suggested that DHS increase the filing commenters mentioned that the DOS 212(a)(9)(A), 8 U.S.C. 1182(a)(9)(A) fee to $650 plus $85 for the biometric immigrant visa (IV) fee is only valid for (prior removal or departure under order fee to avoid a fiscal shortfall. Several one year. They were concerned that the of removal), while still in the United commenters stated that DHS should period for adjudication of the States, DHS will not incorporate the require provisional unlawful presence provisional unlawful presence waiver Form I–212 in the provisional unlawful waiver applicants to pay a fine or fee might last longer than USCIS expects. presence waiver presence process at this ($5,000 to $20,000) to remain in the The commenters asked DHS to state in time for the following reasons. United States and obtain LPR status the regulation that pending provisional First, most applicants seeking a unlawful presence waiver applications provisional unlawful presence waiver 11 The regulations governing the processing of maintain the validity of the IV fees, so will not have A-files. However, every I– advance, conditional consent to reapply in the that applicants would not forfeit the IV United States at 8 CFR 212.2(j) do not apply to 212 applicant with a prior removal aliens who are subject to this ground of fees and have to repay them in the order has an A-file because he or she inadmissibility. See Matter of Torres-Garcia, 23 I&N future. Some commenters also indicated was in removal proceedings. If Dec. 866 (BIA 2006). that the requirement to pay the

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immigrant visa fee before filing the however, will not, as a matter of waiver of inadmissibility pursuant to provisional unlawful presence waiver discretion, grant fee waivers for the INA section 212(a)(9)(B)(v), 8 U.S.C. was confusing. DHS’s responses to these provisional unlawful presence waiver or 1182(a)(9)(B)(v). views are divided into the four associated biometric fee. Costs to the Federal Government categories below. (ii) Premium Processing of the include the possible costs of additional (i) Authority To Charge Immigration Provisional Unlawful Presence Waiver adjudication personnel associated with Fees increased volume and the associated The Secretary has established a equipment (computers, telephones) and Congress has given the Secretary premium processing fee for certain occupancy costs (if additional space is broad authority to administer and employment-based immigration benefit required). However, we expect these enforce the immigration and requests under INA section 286(u), 8 costs to be offset by the additional fee naturalization laws of the United States. U.S.C. 1356(u). USCIS provides revenue collected for form processing. As part of this broad authority, the premium processing for certain benefit DHS will consider the impact of the Secretary has discretion to set filing fees types if an authorized applicant or provisional unlawful presence waiver for immigration benefits at a level that petitioner pays a surcharge of $1,225 for process workflow and resource will ensure recovery of the full costs of the service. The surcharge is paid in requirements as a normal part of its providing adjudication and addition to the filing fees for the biennial fee review. The biennial fee naturalization services, including immigration benefit requested. USCIS’s review determines if fees for services provided without charge to Premium Processing Service (PPS) immigration benefits are sufficient in asylum applicants and certain other generally provides faster processing light of resource needs and filing trends. immigrant applicants. INA section times and adjudication. USCIS 286(m), 8 U.S.C. 1356(m). The Secretary guarantees 15-calendar-day processing (iv) DOS Immigrant Visa Fee also has authority to set fees needed to to those who choose to use the PPS. In DOS is the agency in charge of NVC recover administrative costs. The fee general, if USCIS cannot make a final revenue collected under INA section procedures. The NVC procedures are decision on the applicant’s benefit outlined in the information materials 286(m), 8 U.S.C. 1356(m), remains request within this period, USCIS will available to DHS to provide immigration that applicants receive from the NVC. refund the PPS fee. See 8 CFR As long as the applicant follows NVC and naturalization benefits and ensures 103.7(e)(2). Even if the PPS fee is the collection, safeguarding, and procedures, and has informed the NVC refunded, USCIS will endeavor to of the filing of the provisional unlawful accounting of fees by DHS. INA section continue expedited processing of the 286(n), 8 U.S.C. 1356(n). presence waiver, as outlined in the NVC underlying benefit request. procedures, the fact that a Form I–601A The Secretary has discretion to waive DHS, however, cannot extend is pending will not result in the filing fees or exempt certain types of premium processing to family-based invalidation of the NVC processes. A benefit requests from the fee applications or to waivers of pending I–601A also will not affect the requirements. The Secretary also has inadmissibility that accompany such validity of DOS immigrant visa fee and broad discretion to waive any fee when applications because INA section applicants will not be required to an individual’s circumstances warrant 286(u), 8 U.S.C. 1356(u), only allows resubmit the DOS immigrant visa fee such a waiver. Aliens who request a fee premium processing for employment- solely due to the Form I–601A waiver are not entitled to the waiver as based petitions and applications. 12 processing, provided the applicant a matter of law, nor do they have a Therefore, DHS is not adopting this complies with all DOS processing cognizable due process interest in a suggestion. DHS, however, reminds requirements. discretionary fee waiver. The denial of applicants that they can request a fee waiver request is a matter of expedited adjudication of a provisional 3. Limitations on Filing of Provisional discretion. The agency also has not unlawful presence waiver in accordance Unlawful Presence Waivers provided for administrative appeals of with current USCIS expedite Many commenters questioned why such discretionary decisions. guidance.13 None of the money used for USCIS DHS would limit the number of adjudication of the provisional unlawful (iii) Fee Level for the Provisional provisional unlawful presence waiver presence waiver comes from Unlawful Presence Waiver applications that could be filed by an appropriated funds. As a fee-based DHS has adopted the current cost for individual applicant. Some commenters agency, USCIS is primarily funded by adjudicating an Application for Waiver stated that many applicants will be applicants seeking immigration benefits. of Ground of Inadmissibility, Form I– unrepresented, and, as a result of their Applicants are required to pay their 601($585), as the initial filing fee that lack of knowledge or understanding of own fees. USCIS uses these fees to will be required for the Form I–601A. the immigration process, could be process applicants benefit requests and DHS decided to set the fee for the denied solely for technical reasons, such to cover its administrative costs. USCIS, provisional unlawful presence waiver as failure to present the proper process to be the same as the current documents. Commenters also stated that 12 One commenter referred to INA section 245(i) Form I–601 waiver application fee some pro se aliens may obtain as an example in which Congress authorized fee inadequate, erroneous, or unscrupulous waivers and asserted that USCIS cannot exclude fee because the population that will be waivers in the provisional unlawful presence eligible for the provisional unlawful legal assistance, which could result in waiver process. Congress has legislated when presence waiver is a subset of those their cases being denied. The certain categories of aliens are exempt from paying individuals who would otherwise have commenters argued that precluding certain immigration fees. The authority, however, to these individuals from filing another waive the provisional unlawful presence waiver to file under the current Form I–601 application fee lies with the Secretary through her process. Also, the adjudication of the Form I–601A would be unduly harsh authorities under INA sections 103 and 286(m), 8 Form I–601A will be comparable to the and that DHS’s duty of fairness to U.S.C. 1103 and 1356(m), among others. The fact applicants should trump the agency’s that Congress has provided for fee waivers in adjudication of a Form I–601 requesting different situations does not preclude the Secretary interest in administrative efficiency and from exercising her discretionary authority not to 13 For guidance on USCIS expedite procedures, finality. Several commenters also provide for fee waivers in the context of this rule. please visit www.uscis.gov. disagreed with the limitation on filing,

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especially when an applicant withdraws with additional evidence or correcting and DOS already collects an applicant’s his or her initial filing. the request before USCIS makes a final biometrics at the U.S. Embassy or One commenter requested that USCIS decision in the case. USCIS will take consulate abroad as part of the return the fee if the waiver application into consideration any evidence immigrant visa application process. is withdrawn. Some commenters also received when making the decision. found it a cumbersome and costly 5. The Minimum Age (17 Years) approach to require individuals whose 4. Biometrics Requirement waivers are denied or withdrawn to file Several commenters were concerned Several commenters objected to the another waiver through the regular about the biometrics requirement and requirement that applicants must be 17 process after the consular interview. A the potential harm to applicants, years of age or older to file a provisional few commenters requested that USCIS especially if they were denied a unlawful presence waiver. The assign another officer to adjudicate a provisional unlawful presence waiver. commenters argued that the requirement new Form I–601A, if the prior One commenter believed that the is confusing and suggested eliminating provisional unlawful presence waiver biometrics requirement should be it altogether. One commenter suggested request was denied or withdrawn. eliminated because it would make changing the minimum age from 17 to Finally, some commenters believed that applicants hesitant to apply for the 18 years old. The commenters asked it was unjust to exclude applicants from provisional unlawful presence waiver DHS to provide clear instructions to the the provisional unlawful presence because of a perceived inherent danger public that individuals do not begin to waiver process if they had pending for undocumented persons to work so accrue unlawful presence until they are adjustment of status applications. closely with the U.S. Government. One 18 years old and stated that it would be DHS appreciates the valid concerns of commenter stated that, when DHS best if applicants judged on their own these commenters and recognizes that if collects biometrics from applicants, it whether and when they should file the it implemented the regulatory text as demands a great amount of personal provisional unlawful presence waiver published in the NPRM, aliens with information that could put applicants at application. compelling circumstances could be risk. The commenter believed that the It is important for DHS to maintain precluded from obtaining a provisional information collected from biometrics the flexibility to reject applications filed unlawful presence waiver. For these could be incriminating and used to by applicants under the age of 17 so reasons, DHS is removing the single- initiate investigations. The commenter these applicants are not precluded from filing limitation. If an individual’s also noted that the proposed rule failed filing another waiver application in the provisional unlawful presence waiver to offer applicants any protection from future. This approach would allow an request is denied or withdrawn, the being placed in removal proceedings. applicant to save the cost for filing an individual may file a new Form I–601A, One commenter claimed that the unnecessary waiver application until in accordance with the form collection of biometrics was another the waiver is actually needed. This instructions and with the required fees. way for DHS to ‘‘find fault’’ with the approach of allowing individuals who The applicant’s case must still be applicant and bar waiver approval. are 17 years or older request a pending with DOS, and the applicant Finally, several commenters believed provisional unlawful presence waiver must notify DOS that he or she intends that DHS should allow all individuals to also enables more efficient processing of to file a new Form I–601A. In the case provide biometrics at a U.S. Embassy or the immigrant visa application for of a withdrawn Form I–601A, USCIS consulate and, therefore, should include immediate relative children who are will not refund the filing fees because aliens outside the United States. under the age of 18 years and therefore USCIS has already undertaken steps to After consideration of these have not yet accrued unlawful presence, adjudicate the case. comments, DHS is not modifying the but who very possibly will turn 18 years Alternatively, an individual who biometrics requirement. Requiring old before the DOS consular interview, withdraws his or her Form I–601A filing collection of biometrics helps USCIS accrue unlawful presence subsequent to or whose Form I–601A is denied can determine if an alien is potentially such time, and potentially trigger the apply for a Form I–601, Application for subject to another ground of bars under INA section 212(a)(9)(B)(i), 8 Waiver of Grounds of Inadmissibility inadmissibility or if there are negative U.S.C. 1182(a)(9)(B)(i), upon a with the USCIS Lockbox, after he or she factors or conduct that may affect departure. If these children must wait attends the immigrant visa interview whether the individual warrants a until they have turned 18 years old and and after DOS conclusively determines favorable exercise of discretion. DHS thereafter accrued at least 180 days of that the individual is inadmissible. If only collects the biographic information unlawful presence to file a Form I– the ground(s) of inadmissibility needed to run such checks and to 601A, it may be the case that by that identified by the DOS consular officer adjudicate any requested immigration time DOS will have already scheduled can be waived, the individual can file a benefit. Requiring biometrics also is a consular interview, thereby precluding Form I–601 along with any supporting consistent with the agency’s the alien from eligibility for this process documentation or evidence needed to enforcement priorities and necessary to and leading to the hardship to U.S. demonstrate eligibility for the waiver ensure that an individual granted a citizen parents that this rulemaking and ultimately the immigrant visa. Form I–601A is not a national security intends to avoid. Since USCIS has now centralized risk or public safety threat. USCIS will adjudication of Forms I–601 filed by continue to follow its existing Notice to 6. Effect of the Child Status Protection aliens abroad, USCIS anticipates that Appear (NTA) policies to determine Act (CSPA) the processing time in the traditional whether the agency will initiate removal Several commenters asked DHS to Form I–601 waiver process will be proceedings against a particular clarify that the Child Status Protection reduced. individual or refer them to ICE. Finally, Act (CSPA) provisions, which protects Applicants and their attorneys or DHS will not permit capture of certain children from aging-out of accredited representatives also are biometrics abroad because the Form I– eligibility for certain immigration reminded that they may address or 601A process is a domestic process that benefits, be applied to the agency’s correct mistakes by supplementing a applies only to aliens who are present definition of ‘‘immediate relative’’ for pending Form I–601A waiver request in the United States at the time of filing, purposes of access to the provisional

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unlawful presence waiver process. DHS they explain the entire process, standard Many commenters believed that clarifies in the Form I–601A of review, and other requirements. The USCIS should automatically find instructions that an applicant will commenters stated that this manual is extreme hardship exists in certain remain eligible for a provisional an invaluable resource and that USCIS circumstances. The commenters argued unlawful presence waiver so long as he should create a similar one for the that extreme hardship should be found or she remains an ‘‘immediate relative’’ provisional unlawful presence waiver based solely on: (1) Separation of the as defined in the INA, as amended by process and make it publicly available. U.S. citizen from his or her immediate the CSPA. Thus, an aged-out child may Extreme hardship is a statutory relative; (2) dangerous conditions in the still qualify as an ‘‘immediate relative’’ requirement that an applicant must applicant’s home country; (3) the fact for purposes of access to the provisional meet to qualify for an unlawful presence that the U.S. citizen and undocumented unlawful presence waiver process as waiver under INA section alien have a U.S. citizen child; (4) the long as the child is classified as an 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). fact that the applicant would be immediate relative under the INA. See The INA does not define the term, and separated from his or her children for INA section 201(f), 8 U.S.C. 1151(f). federal courts have not specifically three or 10 years; (5) being a student in the United States; or (6) the fact that the E. Adjudication defined extreme hardship through case law. The BIA has stated that extreme applicant was brought into the United 1. Extreme Hardship—Standards and hardship is not a definable term of fixed States at a young age and that he or she Training and inflexible meaning, but that the could qualify under the DREAM Act if Numerous commenters questioned elements to establish extreme hardship enacted. Some commenters also DHS’s policy on extreme hardship. are dependent upon the facts and suggested that DHS publish clear Many urged DHS to issue more detailed circumstances of each case. See Matter criteria for extreme hardship and guidance on extreme hardship, arguing of Cervantes-Gonzalez, 22 I&N Dec. 560, include factors such as the length of that the term is unclear and potentially 565 (BIA 1999). When USCIS assesses time an alien has been married, the subjects applicants to arbitrary decision- whether an applicant has established existence of children, the payment of making by USCIS officers. Other extreme hardship, USCIS looks at the taxes, strong ties to the United States and life-long assets, lack of eligibility for commenters indicated that clear totality of the applicant’s circumstances adjustment of status, and the loss of a guidance would allow individuals to and any supporting evidence to business. The commenters believed that better assess their chances for an determine whether the qualifying setting out clear criteria would help approval. One commenter even relative will experience extreme applicants better understand how to provided DHS with a list of suggestions hardship. meet the extreme hardship standard. for consideration when creating new In this final rule, USCIS is not Several Congressional commenters policy guidance on extreme hardship modifying how it makes extreme stated that DHS has already established determinations. A number of hardship determinations or how it a precedent in its regulations that commenters requested that DHS ensure, defines extreme hardship. Consistent includes a presumption of extreme through training, that the extreme with how USCIS currently makes hardship for certain Salvadorans and hardship standard is applied evenly and extreme hardship determinations, Guatemalans under the Nicaraguan consistently, and that extreme hardship USCIS will consider all factors and Adjustment and Central American assessments include consideration of supporting evidence that an applicant Relief Act (NACARA), Public Law 105– the financial and emotional effects of submits with his or her provisional 100, as amended, citing 8 CFR separation. Many commenters thought unlawful presence waiver application. 1240.64(d)(1). These Congressional that the current extreme hardship USCIS also has included in the Form I– commenters believed that DHS could standard applied by USCIS is too rigid 601A instructions examples of factors to include similar regulations and even and should be relaxed. Several help provisional unlawful presence create a rebuttable presumption that an commenters also asked DHS to conduct waiver applicants understand what can extreme hardship requirement has been extensive training for domestic USCIS be provided to establish the required satisfied when applicants would be officers, specifically on country extreme hardship to a U.S. citizen required to remain for prolonged conditions, which are critical to making spouse or parent. USCIS will thoroughly periods of time in dangerous locations. an extreme hardship determination. The train officers to adjudicate provisional The Congressional commenters further commenters stated that USCIS unlawful presence waivers, create argued that DHS could determine if a personnel who adjudicate waivers standard operating procedures specific location was dangerous by whether DOS abroad already are highly trained, have to the Form I–601A process, and awards danger pay to its employees intimate familiarity with specific monitor implementation and conduct serving in such locations, citing 5 U.S.C. country conditions, and are further training if necessary. 5928 (awarding danger pay when there knowledgeable about conditions in the 2. Presumption of Extreme Hardship is a ‘‘civil insurrection, civil war, applicant’s home country. The terrorism, or wartime conditions’’). commenters were concerned that, Several commenters asked DHS to Many commenters also stated that the without extensive training, USCIS apply a presumption of extreme rule should, at a minimum, consider the officers in the United States may adopt hardship if the applicant has to file a dangerousness of a location as a highly- a more restrictive approach. The new Form I–601 waiver application relevant factor during the adjudication. commenters wanted USCIS to ensure because the DOS consular officer One commenter also suggested that that country-specific knowledge is not determined that the applicant was extreme hardship should be found if the lost once waiver processing is moved inadmissible on other grounds that can U.S. citizen has to relocate to a country stateside. Several commenters also be waived. The commenters argued that where Peace Corps does not send its mentioned that USCIS should use the the extreme hardship would already be personnel because it is too dangerous. adjudicator’s manual and standard established as part of the provisional DHS is not modifying how it makes operating procedures created by the unlawful presence waiver application extreme hardship determinations or Refugee, Asylum, and International and USCIS should not have to re- defining extreme hardship for purposes Operations Directorate (RAIO) because adjudicate that aspect of the waiver. of the provisional unlawful presence

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waiver process. DHS also is not creating requirement or approve a provisional adjudicate an immigrant visa shortly presumptions of extreme hardship. As unlawful presence waiver for an after the applicant appears for his or her indicated previously, extreme hardship individual who has not established that interview. DHS also believes that this is not a definable term and elements to he or she meets all the statutory streamlined process will significantly establish extreme hardship are requirements set by Congress. Only shorten the length of time immediate dependent upon the facts and Congress can change the minimum relatives must remain outside the circumstances of each case. Consistent statutory requirements individuals must United States before they can rejoin with existing practice, USCIS will meet to qualify for a waiver of their U.S. citizen relatives. continue to consider all factors and inadmissibility. USCIS, therefore, In most instances, the provisional supporting evidence that an applicant cannot adopt these suggestions. unlawful presence waiver application submits with his or her provisional will be adjudicated at the USCIS 4. Timelines for Adjudication; unlawful presence waiver application in National Benefits Center (NBC). USCIS Interviews assessing if the applicant has will adjudicate the applications based established the requisite extreme Several commenters urged DHS to on the applicant’s responses in the Form hardship. DHS also has included in the establish clear timeframes for I–601A, any supporting documentation, Form I–601A instructions examples of adjudication of the provisional unlawful and any results from background and factors to help provisional unlawful presence waiver and for immigrant visa security checks. The NBC does not presence waiver applicants understand issuance. The commenters stated that conduct on-site interviews. In cases what types of documents can be without a clear pronouncement, the where an interview would be required, provided to establish the required uncertainties about the duration of the USCIS would have to transfer the extreme hardship to a U.S. citizen adjudication process would discourage applicant’s information and A-File/ spouse or parent. applicants from taking advantage of the Receipt File to the local district office In terms of re-adjudicating prior provisional unlawful presence waiver and schedule the applicant for an extreme hardship and discretionary process. Some commenters believed that interview, which could take several determinations, DHS will not alter its it would be beneficial if provisional months. Thus, a requirement to position on this point. Every extreme unlawful presence waiver applicants interview all provisional unlawful hardship determination and could be interviewed to establish presence waiver applicants would discretionary determination is based on extreme hardship and the bona fides of undermine the goal of this new a careful consideration of the evidence the marriage and recommended that streamlined process. Through the of record at the time the determination USCIS interview applicants streamlined provisional unlawful is made. If the DOS consular officer electronically or through a remote presence waiver process, DHS hopes to determines that a new ground of interview process. The commenters also reduce the time it takes for an applicant inadmissibility applies in the suggested combining the interview for to receive a decision from USCIS and applicant’s case, USCIS may consider Form I–130 with the interview for Form complete the immigrant visa process that as a new, material factor when I–601A. One commenter believed that abroad. DHS, however, has reserved its assessing whether the applicant allowing applicants to be interviewed authority to request that a provisional continues to warrant a favorable for the provisional unlawful presence unlawful presence waiver applicant exercise of discretion. As such, USCIS waiver would result in what the appear for an interview. reserves the authority to reopen and commenter called ‘‘more humane 5. Requests for Evidence and Notices of reconsider, on its own motion, an adjudications.’’ Intent To Deny approval or a denial of a provisional DHS declines to adopt these unlawful presence waiver application at suggestions. In terms of processing Several commenters believed that any time, including when new factors times, DHS generally publishes the DHS should generously use Requests for come to light after the provisional estimated processing times for Evidence (RFEs) and Notices of Intent to unlawful presence waiver applicant’s particular immigration benefits and for Deny (NOIDs) to clarify any weaknesses immigrant visa interview. the local offices where an applicant’s or deficiencies in an alien’s provisional case would be adjudicated. See unlawful presence waiver application 3. Eliminating the Extreme Hardship https://egov.uscis.gov/cris/ before USCIS renders a decision. Requirement processTimesDisplayInit.do (USCIS case Otherwise, some eligible applicants Several commenters suggested that processing times). For the provisional might be unnecessarily excluded from DHS completely eliminate the extreme unlawful presence waiver application, the process. Several commenters asked hardship requirement for purposes of USCIS and DOS are coordinating closely DHS to expand the use of RFEs to any the provisional unlawful presence to make sure that the timing of the aspect of the provisional unlawful waiver, rather than try to define it. approval of a provisional unlawful presence waiver application and not just Others argued that immediate relatives presence waiver application is close to limit it to the extreme hardship should not have to prove extreme the time of the scheduled immigrant determination. The commenters hardship at all, especially if married to visa interview abroad. DOS estimates believed that this change would allow a U.S. citizen. that it will schedule the applicant for an applicants to submit all evidence Congress enacted the provisions of the immigrant visa interview within two to necessary to establish eligibility for the INA that describe the statutory three months after approval of the waiver and give USCIS more requirements for obtaining a waiver of provisional unlawful presence waiver information about an applicant’s inadmissibility under INA section and the applicant’s submission of the admissibility rather than automatically 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i). required immigrant visa processing issuing a denial. With respect to NOIDs, See INA section 212(a)(9)(B)(v), 8 U.S.C. documents to DOS. This timeframe several commenters argued that USCIS 1182(a)(9)(B)(v). DHS, as part of the allows the immediate relative the should issue a NOID instead of a denial, Executive Branch, does not have the opportunity to remain united with his especially if other grounds of authority to dispense with any statutory or her U.S. citizen spouse or parent inadmissibility were detected. The requirement. As a result, DHS cannot until shortly before his or her immigrant commenters also stated that USCIS eliminate extreme hardship as a visa interview and will allow DOS to should issue a NOID to at least let the

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applicant know which grounds of required waivers and appeal any denial and must go abroad to apply again with inadmissibility USCIS believes may of the Form I–601 application to the USCIS for a waiver of inadmissibility. come up at the immigrant visa AAO. The commenters also noted that USCIS interview. and DOS would have to coordinate F. Denials, Motions To Reopen or As stated in the proposed rule, DHS processes anyway if the waiver Reconsider, and Appeals is committed to issuing RFEs to address application is denied or when the applications it receives that are missing 1. Denials and Motions To Reopen/ agency elects to reopen and deny the critical information related to extreme Reconsider waiver on its own motion. Finally, hardship or if applications are missing Several commenters stated that USCIS several commenters said that DHS critical information related to whether should not deny a provisional unlawful should give the applicant a chance to the alien merits a favorable exercise of presence waiver solely because there are file a new provisional unlawful discretion. USCIS officers also retain the other grounds of inadmissibility. The presence waiver application if the first discretion to issue an RFE on any issue commenters suggested that USCIS request is denied. The commenters or subject matter, if the adjudicator approve the provisional unlawful noted that most applicants have been in believes that additional evidence will presence waiver and then inform the the United States for extended periods aid in the adjudication. DHS anticipates applicant of any other potential grounds of time and have not traveled abroad that most RFEs will focus on the of inadmissibility or ineligibility because of the uncertainty in the substantive determination on extreme process, the hardships, and potential discovered during adjudication of the hardship and any factors that may dangers in their home countries. provisional unlawful presence waiver establish that the applicant warrants a According to these commenters, if application. Some commenters favorable exercise of discretion. USCIS denied waiver applications for recommended that DHS allow an USCIS will not issue NOIDs in this this group and did not permit a second applicant to file a motion to reopen or provisional unlawful presence waiver filing in the United States, most of these reconsider if the provisional unlawful process, notwithstanding the provisions applicants would simply choose to presence waiver application is denied, of 8 CFR 103.2(b)(16). A NOID provides remain in the United States unlawfully giving the applicant a chance to rebut an applicant or petitioner with an and without status. opportunity to review and rebut DHS’s findings. Several commenters DHS understands the concerns of the derogatory information of which he or and immigrant advocacy groups urged commenters but nonetheless believes she is unaware. In the provisional DHS to loosen restrictions on filing of that allowing motions to reopen or unlawful presence waiver process, motions to reopen or reconsider. The reconsider would undercut the USCIS will not be conducting a full commenters argued that these are due efficiencies USCIS and DOS will gain admissibility assessment and, as a process protections that are ‘‘integral through the streamlined provisional result, will not be issuing a NOID parts of our legal system.’’ The unlawful presence waiver process. DHS describing all possible grounds of commenters urged DHS to allow such also has determined that allowing inadmissibility. USCIS, instead, will be motions especially in cases of changed motions to reopen or reconsider could deciding an individual’s eligibility circumstances, erroneous denials, significantly interfere with the based on his or her responses to the deficient applications filed by pro se operational agreements between USCIS Form I–601A questions and the results applicants, and deficient or improper and DOS and could substantially delay from the applicant’s background and filings by ‘‘notarios’’ and individuals waiver and immigrant visa processing. security checks. Most applicants would not authorized to practice immigration To alleviate some of the commenters’ be aware of their prior criminal or law in the United States. The concerns, however, USCIS has immigration history and the potential commenters recommended that DHS do eliminated the filing limitation initially that these offenses might make them significant public outreach to proposed in the NPRM. Consequently, if ineligible for the requested benefit. If an familiarize potential applicants with the an individual’s provisional unlawful individual’s provisional unlawful new provisional unlawful presence presence waiver request is ultimately presence waiver application is waiver process and ensure that denied, the individual may file a new ultimately denied, the individual may immigrants are aware of notario Form I–601A, in accordance with the file a new Form I–601A, in accordance practices. The commenters also asked form instructions, with the required fees with the form instructions, with the DHS to place warnings in the and any additional documentation that required fees and any additional instructions to the provisional unlawful he or she believes might establish his or documentation that he or she believes presence waiver application and post her eligibility for the waiver. The might establish his or her eligibility for them on the USCIS Web page to help applicant’s case must still be pending the waiver. The applicant’s case must applicants to avoid scams. The with DOS and the applicant must notify still be pending with DOS and the commenters suggested that DHS provide DOS that he or she intends on filing a applicant must notify DOS that he or applicants with links to all 50 State Bar new I–601A. she intends to file a new I–601A. Associations so that applicants may Alternatively, the individual can file Alternatively, the individual can file contact the state bars to ensure that the a Form I–601, Application for Waiver of a Form I–601, Application for Waiver of person assisting them is a licensed Grounds of Inadmissibility with the Grounds of Inadmissibility with the attorney or accredited representative USCIS Lockbox, after he or she attends USCIS Lockbox, after he or she attends who is authorized to practice the immigrant visa interview and after the immigrant visa interview and after immigration law. DOS conclusively determines that the DOS conclusively determines that the With regard to DHS’s concern with individual is inadmissible. individual is inadmissible. At that time, substantial delays in immigrant visa As indicated in the proposed rule, the applicant can make his or her case processing if motions to reopen or DHS is retaining its authority and about whether a particular criminal multiple filings were permitted, the discretion to reopen or reconsider a offense or immigration violation renders commenters stated that DHS would still decision on its own motion. For the the applicant ineligible for the expend additional resources on cases provisional unlawful presence waiver immigrant visa. If needed, the applicant where an applicant is denied a process, USCIS may reopen the decision will have an opportunity to file all provisional unlawful presence waiver and deny or approve the provisional

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unlawful presence waiver at any time if applications have been approved. few commenters urged DHS to allow USCIS finds that the decision was Similarly, consistent with its civil appeals at least in cases in which there issued in error or approval is no longer enforcement priorities, DHS also does were questions of law, errors, or warranted. USCIS will follow the not envision initiating removal changed circumstances. Finally, several requirements of 8 CFR 103.5(a)(5) before proceedings against aliens whose Form commenters stated that DHS, by reopening a case and denying a waiver I–601As are denied or withdrawn prior relegating certain questions of application. to final adjudication. Pursuant to its inadmissibility to either DOS or federal DHS agrees with the need for public existing policy governing issuance of court, was abdicating its authority to outreach and materials specific to the NTAs and referrals to ICE,14 an interpret the law for grounds of provisional unlawful presence waiver individual whose request for a inadmissibility where no waiver is process to help potential applicants provisional unlawful presence waiver is available. avoid being the victims of scams by denied or who withdraws the Form I– DHS disagrees with these positions. individuals who are not authorized to 601A prior to final adjudication will There is no cognizable due process practice immigration law. USCIS has typically be referred to ICE only if he or interest in access to or eligibility for a already begun an initiative, the she is considered a DHS enforcement discretionary, provisional unlawful Unauthorized Practice of Immigration priority—that is, if the individual has a presence waiver of inadmissibility. See, Law (UPIL) initiative, to inform the criminal history, has committed fraud, e.g., Champion v. Holder, 626 F.3d 952, public about individuals who are not or otherwise poses a threat to national 957 (7th Cir. 2010) (‘‘To articulate a due authorized to practice immigration laws security or public safety. Given USCIS’s process claim, [the individual] must and has held several stakeholders existing NTA policy, which demonstrate that she has a protected outreach engagements on the topic. For appropriately focuses USCIS’s referrals liberty or property interest under the more details about this initiative, please to ICE on individuals who are Fifth Amendment. Aliens have a Fifth visit the USCIS Web site at considered DHS enforcement priorities, Amendment right to due process in www.uscis.gov/avoidscams. DHS will not create a some immigration proceedings, but not 2. Denials and Initiation of Removal ‘‘nonremovability’’ clause or in those that are discretionary.’’) Proceedings confidentiality provision to preclude (citations omitted). The provisional automatic initiation of removal Several commenters questioned the unlawful presence waiver process is proceedings. DHS will follow the NTA purely discretionary and no alien has a usefulness of the proposed rule, issuance policy in effect at the time of especially because it did not contain right to obtain a waiver from the the adjudication to determine if it will Secretary of Homeland Security.15 any confidentiality provisions or make initiate removal proceedings against an clear what would happen to an applicant whose Form I–601A Even assuming that such an interest individual if a provisional unlawful provisional unlawful presence waiver exists, none of the commenters cite any presence waiver is denied. Many application is denied. Furthermore, if case or statute that supports the claim thought that undocumented individuals DHS discovers acts, omissions, or post- that the Due Process Clause of the Fifth will be hesitant or deterred from filing approval activity that would meet the Amendment requires an Executive the provisional unlawful presence criteria for NTA issuance or determines agency to provide for administrative waiver as it would expose their status in that the provisional unlawful presence appeal of an agency decision. Section the United States and cause their waiver was granted in error, DHS may 10(c) of the Administrative Procedure families even more stress. Numerous issue an NTA, consistent with DHS’s Act, 5 U.S.C. 704, does permit an agency commenters asked DHS to implement a NTA issuance policy, as well as reopen to provide an administrative appeal and confidentiality provision so that the the provisional unlawful presence if the agency chooses to do so, the denial of the provisional unlawful waiver approval and deny the waiver agency can also, by regulation, make the presence waiver request does not request. filing of an administrative appeal a automatically trigger removal necessary prerequisite to judicial proceedings or notice to ICE that the 3. Appeals review. See Darby v. Cisneros, 509 U.S. individual’s case was denied; others Several commenters argued that DHS 137 (1993). But nothing in section 10(c) requested that DHS include a should permit appeals of denials while or the Darby decision mandates that an ‘‘nonremovability’’ clause in the the applicant is in the United States. agency must provide for an regulatory text. Some commenters also The commenters claimed that denial of administrative appeal.16 In upholding urged USCIS to work closely with CBP a provisional unlawful presence waiver to ensure that CBP will not initiate was equivalent to a final waiver denial 15 Even with respect to ordinary Form I–601 waivers, Congress specifically gave the Secretary removal proceedings against an alien and should be subject to appeal rights who is departing from the United States discretion to decide who should or should not be similar to those allowed for the current granted an unlawful presence waiver under INA to attend the immigrant visa interview. Form I–601 denials that are filed with section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v). DHS is committed to focusing its the AAO. One commenter argued that This discretion is not diminished by the fact that one element of that determination rests on a legal finite enforcement resources on its not allowing aliens to appeal essentially enforcement priorities, including requirement—satisfying the extreme hardship meant that DHS would adjudicate all standard. Even if an applicant establishes extreme individuals who pose a threat to public waivers favorably. The commenter also hardship, the Secretary is not required to favorably safety or national security. As indicated stated that denying appeals would not exercise her discretion in the adjudication of the waiver. See Matter of Mendez-Moralez, 21 I&N Dec. in the proposed rule, DHS will follow meet the due process requirements. A current agency policy for issuance of 296, 301 (BIA 1996) (‘‘Extreme hardship is a requirement for eligibility, but once established it Notices to Appear (NTAs). See 14 See USCIS Memorandum, Revised Guidance is but one favorable discretionary factor to be www.uscis.gov/NTA. However, for the Referral of Cases and Issuance of Notices to considered.’’). consistent with its civil enforcement Appear (NTAs) in cases Involving Inadmissible and 16 To the contrary, the Court’s conclusion in priorities, DHS does not envision Removable Aliens (Nov. 7, 2011), available at: Darby that pursuing an administrative appeal is a http://www.uscis.gov/USCIS/Laws/Memoranda/ prerequisite to judicial review only if required by initiating removal proceedings against Static_Files_Memoranda/ statute or the agency chooses to provide for such aliens or referring aliens to ICE whose NTA%20PM%20(Approved%20as%20final%2011- an administrative appeal and also chooses to make provisional unlawful presence waiver 7-11).pdf. it mandatory strongly suggests that an agency is not

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the BIAs’ practice of ‘‘affirmance commenters requested that aliens not authorization and advance parole. DHS without opinion’’ of immigration judge accrue unlawful presence during the is not altering its position on interim decisions, for example, several courts of pendency of Form I–601A or while benefits as initially stated in the appeals have recognized that Due waiting for their immigrant visa proposed rule. Finally, the grant of a Process does not require an agency to interview. The commenters believed provisional unlawful presence waiver provide for administrative appeal of its that a pending provisional unlawful does not guarantee that an individual decisions. See, e.g., Zhang v. U.S. Dep’t presence waiver application should with an approved immigrant visa will of Justice, 362 F.3d 155, 157 (2d Cir. ‘‘stop the clock’’ on any immigration be admitted to the United States by CBP. 2004); Loulou v. Ashcroft, 354 F.3d 706, violation. Another commenter stated Operationally, USCIS and DOS have 709 (8th Cir. 2003); Falcon Carriche v. that the final rule should clearly specify coordinated closely on this streamlined Ashcroft, 350 F.3d 845, 850 (9th. Cir. that the pendency of a Form I–601A process and the close timeframe 2003); Mendoza v. U.S. Att’y Gen., 327 protects an individual from further between processing of the Form I–601A F.3d 1283, 1289 (11th Cir. 2003); accrual of unlawful presence and places approval and the immigrant visa Albathani v. INS, 318 F.3d 365, 376 (1st the individual in a period of stay application will encourage individuals Cir. 2003); Guentchev v. INS, 77 F.3d authorized by the Secretary described in to speed up the consular process and to 1036, 1037–38 (7th Cir. 1996). INA section 212(a)(9)(B)(ii), 8 U.S.C. depart from the United States as quickly Finally, if USCIS denies an alien’s 1182(a)(9)(B)(ii). Finally, several as possible. Any issuance of interim Form I–601A, the alien has two commenters stated that approval of the benefits or specific authorized periods alternate avenues for obtaining a waiver provisional unlawful presence waiver of stay will hinder this goal and the of inadmissibility: (1) Filing a new Form should guarantee immigrant visa integrity of the program. DHS added I–601A, in accordance with the form issuance and the right to return to the language to the final rule to make clear instructions, with the required fees and United States. that applicants are not eligible for any additional documentation that he or A waiver of inadmissibility is an interim benefits and that a pending or she believes might establish his or her ancillary benefit to a primary approved application for provisional eligibility for the waiver or (2) filing a application that would give an alien unlawful presence waiver does not Form I–601, Application for Waiver of legal immigrant status; the waiver, by authorize any interim benefits. See Grounds of Inadmissibility with the itself, does not convey a legal status. In section 212.7(e)(2). USCIS Lockbox, after he or she attends the provisional unlawful presence DHS reminds the public that the filing the immigrant visa interview and after waiver process, the primary application or approval of a provisional unlawful DOS conclusively determines that the is the immigrant visa over which DOS, presence waiver application will not: (1) individual is inadmissible. The Form I– not USCIS, has jurisdiction. The waiver Confer any legal status; (2) protect 601 is appealable to the AAO. only addresses grounds of against the accrual of additional Appeals should be reserved for inadmissibility (in this instance, unlawful presence; (3) authorize an actions that are based on a unlawful presence) that may preclude alien to enter the United States without comprehensive assessment of the DOS from issuing the immigrant visa at securing a visa or other appropriate applicant’s admissibility. Jurisdiction the time of the applicant’s interview entry document; (4) convey any interim over the final admissibility abroad. If DOS approves the immigrant benefits (e.g., employment determination in the context of the visa, the alien can be admitted to the authorization, advance parole, or Form I–601 lies with the AAO and with United States as a LPR, assuming CBP eligibility to be paroled based solely on DOS in the context of the immigrant determines that he or she is otherwise a pending or approved Form I–601A); or visa eligibility determination. It would admissible and entitled to the (5) protect an alien from being placed in be an inefficient use of resources for immigrant visa classification. See INA removal proceedings or removed from DHS to allow an administrative appeal sections 204(e), 211(a), and 221(h); 8 the United States, in accordance with of a decision that does not take into U.S.C. 1154(e), 1181(a), and 1201(h). current DHS policies governing consideration the full inadmissibility Interim benefits provided on the basis of initiation of removal proceedings and determination or any other factors that something pending with DHS or DOJ are use of prosecutorial discretion. may be discovered during the course of granted only in connection with a H. Automatic Revocation the immigrant visa interview abroad. pending application for an immigration DHS, therefore, is retaining its policy of status within the United States. DHS Several commenters questioned the regulatory text in proposed 8 CFR not affording an administrative appeal does not have authority to issue Social 212.7(a)(4)(iv), which provides for of the denial of a provisional unlawful Security numbers; the Social Security automatic termination of the validity of presence waiver application. Administration has sole jurisdiction over the issuance of Social Security an approved waiver under INA section G. Effect of Pending or Approved numbers. Finally, DHS has no authority 216(f), 8 U.S.C. 1186a(f), when the Provisional Unlawful Presence Waivers to issue driver’s licenses; the issuance of conditional resident status of an alien Many commenters asked USCIS to these types of documents are governed admitted under INA section 216, 8 consider allowing aliens with pending by the laws and regulations of the U.S.C. 1186a, is terminated. The provisional unlawful presence waiver individual U.S. states, which prescribe commenters argued that this provision applications to travel and work while the conditions for obtaining and was contrary to the INA and should be waiting for a decision from USCIS to issuance of identification cards and removed from the final rule. The travel abroad for their immigrant visa drivers’ licenses. commenters noted that under INA interview. Several commenters also As stated in the proposed rule, the section 216(f), 8 U.S.C. 1186a(f), waivers suggested that individuals with pending approval of a provisional unlawful under INA section 212(h), 8 U.S.C. provisional unlawful presence waiver presence waiver does not create a lawful 1182(h) (for certain criminal grounds of applications be given Social Security immigration status, extend any inadmissibility), and INA section 212(i) numbers and driver’s licenses. Some authorized period of stay, protect aliens 8 U.S.C. 1182(h) (for fraud or from removal or law enforcement misrepresentation), are the only types of required to allow for administrative appeal at all, action, or grant any other immigration waivers that are automatically in the absence of a statutory mandate. benefits, including temporary work terminated upon termination of

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conditional resident status. As a result, case. Since the provisional unlawful individual’s removal proceedings are they assert, DHS lacks the authority to presence waiver is a discretionary administratively closed and have not implement this regulatory change when process, DHS will retain its authority on been recalendared at the time of filing Congress has already clearly spoken on revocations and its position on the Form I–601A. DHS is not limiting the matter. automatic revocations. Consistent with eligibility solely to individuals whose A few commenters also argued that 8 CFR 103.2(b)(16), if USCIS discovers cases were closed pursuant to the ICE DHS should eliminate automatic derogatory information that was Prosecutorial Discretion (PD) initiative. revocation or adjudicate revocations unknown to the applicant, USCIS will Any alien whose removal proceedings separate and apart from the provisional provide notice of such information and are administratively closed and have not unlawful presence waiver process. The give the applicant an opportunity to been recalendared at the time of filing commenters believed that it would be respond prior to any decision to deny the Form I–601A, can apply for a more efficient for DHS to reserve the the application. DHS, however, will not provisional unlawful presence waiver. If right to review an approved provisional allow aliens to appeal a decision to USCIS approves the provisional unlawful presence waiver rather than revoke a provisional unlawful presence unlawful presence waiver for an automatically revoke it, especially when waiver. individual whose removal proceedings DOS determines that the applicant is are administratively closed, the subject to another ground of I. Comments on Form I–601A, individual should seek termination or inadmissibility or there are other Application for Provisional Unlawful dismissal of his or her removal negative discretionary factors that were Presence Waiver, and the Form proceedings before departing the United not considered at the time of the Form Instructions States to appear at the immigrant visa I–601A adjudication. The commenters DHS invited the public to comment interview to avoid possible delays in his also opined that DHS would not need to on the proposed rule and the Form I– or her immigrant visa processing or risk re-adjudicate any portion of the waiver 601A and the instructions to accompany becoming ineligible for the immigrant that has the same or lesser standard the form. DHS has considered the visa based on another ground of needed for waiving the newly comments to the Form I–601A and the inadmissibility. DHS has updated the discovered ground of inadmissibility form instructions. While DHS has not form and its instructions accordingly. (e.g., if the new ground of adopted all suggestions made by DHS has incorporated many of the inadmissibility required a showing of comments, below is a list of changes to commenters’ suggested edits while extreme hardship, DHS could simply the form and instructions that DHS rewriting this part of the form to clarify adopt the provisional unlawful presence incorporated as a result of these ambiguities and to correct inaccuracies. waiver determination on extreme comments. DHS also has revised the form and hardship, when adjudicating the waiver instructions to clarify that USCIS ‘‘may’’ request for the new ground of 1. Comments on Form find an applicant ineligible for a inadmissibility). a. Part 1, Information About provisional unlawful presence waiver if DHS agrees that the statute at INA Applicant—Immigration or Criminal USCIS determines that there is reason to section 216(f), 8 U.S.C. 1186a(f), only History Records believe the Department of State may addresses automatic revocation of find the applicant ineligible for a approved waivers under INA sections Several commenters suggested that ground of inadmissibility other than 212(h) or (i). As a result, it has clarified USCIS allow individuals in removal unlawful presence. Regardless of that the amendment to 8 CFR proceedings to apply for provisional whether USCIS approves or denies the 212.7(a)(4), regarding treatment of unlawful presence waivers if their provisional unlawful presence waiver, certain waivers upon the termination of removal proceedings had been an immigrant visa applicant should conditional resident status under INA administratively closed pursuant to present evidence of eligibility and any section 216(f), 8 U.S.C. 1186a(f), and ICE’s Prosecutorial Discretion (PD) documents needed to establish automatic revocation of approved initiative. Several commenters also admissibility to the consular officer at waivers of inadmissibility, only applies stated that this section of the form was the time of his or her immigrant visa to approved waivers based on INA confusing and/or inaccurate. interview. The approval of a provisional sections 212(h) and (i), 8 U.S.C. 1182(h) Specifically, the commenters believed unlawful presence waiver does not and (i), and is revising 8 CFR 212.7(a)(4) this section was inaccurate because it guarantee that the consular officer will accordingly. indicates that an applicant will be find the applicant eligible for an As to revocations, DHS has not ineligible for a provisional unlawful immigrant visa. Also, the denial of a adopted the commenters’ suggestions. presence waiver if the applicant provisional unlawful presence waiver DHS believes that revocation of an answers ‘‘Yes’’ to certain questions does not preclude the applicant from approved case requires an assessment of relating to other possible grounds of filing a new Form I–601A, in the facts and circumstances as they inadmissibility. The commenters also accordance with the form instructions, existed at the time the case was believed the questions were too broad to with the required fees and any approved as well as any newly lead to a firm finding of inadmissibility additional documentation that he or she discovered information that may have and should be amended to say that the believes might establish his or her affected the officer’s decision or applicant ‘‘may’’ not be eligible and that eligibility for the waiver. The discretion at the time of adjudication. USCIS ‘‘may’’ deny the application if applicant’s case must still be pending When USCIS reviews a case for possible the applicant answers ‘‘Yes’’ to those with DOS, and the applicant must notify revocation, USCIS looks at the facts and questions. These commenters also DOS that he or she intends to file a new law at the time the case was approved identified specific inaccuracies and Form I–601A. to determine if the applicant was in fact provided suggested edits to revise this Alternatively, the applicant can file a eligible for the benefit requested. USCIS section. Form I–601, Application for Waiver of also reviews any newly discovered DHS has amended the final rule to Grounds of Inadmissibility with the information to see if it is relevant and indicate that an individual in removal USCIS Lockbox, after his or her could have potentially affected the proceedings may apply for a provisional immigrant visa interview at the U.S. officer’s discretionary assessment in the unlawful presence waiver if the Embassy or consulate abroad. The

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purpose of these eligibility questions is final rule to clarify when an alien is of this final rule. DHS has updated the not for USCIS to pre-adjudicate ineligible for a provisional unlawful form and its instructions accordingly. immigrant visa eligibility, but to limit presence waiver because of a previously c. Part 3, Information About Qualifying the provisional unlawful presence scheduled immigrant visa interview. Relative waiver process to individuals whose USCIS will first look at whether the only potential ground of inadmissibility scheduled immigrant visa interview is Many commenters asked DHS to is based on prior unlawful presence in based on the approved immediate allow eligible applicants to show the United States. All other potential relative petition (I–130 or I–360) that extreme hardship to a LPR spouse or grounds of inadmissibility and/or accompanies the Form I–601A. If it is, parent, if applicable, since the statute ineligibility need to be addressed with USCIS will then look at the Department authorizes a waiver of unlawful the consular officer during the of State’s Consular Consolidated presence based on a showing of extreme immigrant visa interview. Database (CCD) to determine the date on hardship to a spouse or parent who is Finally, one commenter suggested which the Department of State initially either a U.S. citizen or LPR. that the form be enhanced by acted to schedule the applicant for his DHS has considered these comments incorporating a detailed questionnaire, or her immigrant visa interview (i.e., the but is not adopting the suggested similar to that of Form I–601, aimed at date of scheduling itself and not the change. As stated in the proposed rule, a primary purpose for creating the uncovering other potential grounds of date and time the applicant must appear provisional unlawful presence waiver inadmissibility. for the interview). process is to reduce the separation of DHS did not include a detailed If the date that the Department of U.S. citizens and their immediate questionnaire covering every potential State initially acted to schedule the ground of inadmissibility because the relatives. Focusing on hardship to U.S. immigrant visa interview is prior to the citizens is consistent with permissible Form I–601A may only be used to waive date of publication of this final rule, unlawful presence. The purpose of the distinctions that may be drawn between January 3, 2013, then the alien is section entitled ‘‘Immigration or U.S. citizens and aliens. It also is ineligible to apply for a provisional Criminal History Records’’ is to give consistent with the Secretary’s authority unlawful presence waiver. If the date applicants an opportunity to explain to administer the immigration laws and that Department of State initially acted any possible immigration or criminal determine the most efficient means for to schedule the immigrant visa history records which USCIS may effectuating the waiver process. See 77 interview is on or after the publication uncover during routine system and FR at 19908. date of this final rule, the alien is background checks. DHS will not make eligible to apply for a provisional d. Interviews any changes to the form based on this unlawful presence waiver. The actual comment. One commenter suggested that when date and time that the alien is scheduled USCIS requires an interview for a b. Part 2, Information About Immediate to appear for the interview is not provisional unlawful presence waiver, Relative Petitions and Consular relevant for the eligibility USCIS should allow the applicant to Processing determination. This rule applies even if choose to either appear at a local USCIS Many commenters suggested that DHS the alien failed to appear for his or her field office for an in-person interview or allow individuals to cancel or interview, cancelled the interview, or have a video-conferenced interview reschedule their immigrant visa requested that the interview be with an adjudicator at a USCIS service interviews in order to seek a provisional rescheduled. Therefore, USCIS may center using appropriate technology unlawful presence waiver. reject or deny any Form I–601A filed by (e.g., Skype). In response to these suggestions, DHS an alien who USCIS determines that the DHS reviewed these comments but considered a number of criteria and Department of State, prior to the date of did not adopt the suggestions. DHS does restrictions to make the process publication of this final rule, initially not anticipate that many provisional operationally manageable without acted to schedule the alien’s immigrant unlawful presence waiver applicants creating delays in processing of other visa interview for the approved will require an in-person interview. petitions or applications filed with immediate relative petition upon which Also, USCIS does not conduct USCIS or in the DOS immigrant visa the Form I–601A is based. See section interviews at the NBC, namely because process. By including aliens who were 212.7(e)(4)(iv). of its remote location and the type of scheduled for an interview prior to the An alien who is ineligible to apply for benefit requests adjudicated by that publication of this final rule, the a provisional unlawful presence waiver center, which are generally paper-based projected volume of cases could because of a previously scheduled decisions. USCIS also will not conduct significantly increase and would create immigrant visa interview may still video interviews in lieu of in-person backlogs not only in the provisional qualify for a provisional unlawful interviews when such interviews are unlawful presence waiver process, but presence waiver if he or she has a new required. Therefore, DHS will not make also in adjudication of other USCIS DOS immigrant visa case because (1) the suggested change to the form. benefits. The increased volume would DOS terminated the immigrant visa 2. Comments on Instructions also adversely impact DOS and its registration associated with the immigrant visa process. previously scheduled interview, and a. Eligibility Criteria—Pending For these reasons, DHS will not they have a new immediate relative Adjustment Applications expand the provisional unlawful petition; or (2) the alien has a new Several commenters were confused presence waiver to include individuals immediate relative petition filed on his about what it means to have a pending whose immigrant visa interviews were or her behalf by a different petitioner. application for adjustment of status and scheduled before the date of publication USCIS will reject or deny any Form I– did not understand why this would of this final rule January 3, 2013, even 601A filed by an alien who was affect eligibility for a provisional if the consulate or individual cancelled scheduled for an interview prior to the unlawful presence waiver. or rescheduled the immigrant visa date of publication of this final rule, DHS will not remove the restriction interview after the date of publication of even if the alien’s interview is for individuals who have an application this final rule. DHS adds language to the rescheduled after the date of publication for adjustment of status pending with

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USCIS. Individuals who are eligible to instructions to make clear applicants unlawful presence waiver but ineligible obtain LPR status while inside the will remain eligible for a provisional for adjustment of status to remain in the United States through the adjustment of unlawful presence waiver as long as the United States and adjust their status to status process and intend to pursue LPR applicants remain ‘‘immediate a LPR. Several commenters asked DHS status through that process do not need relatives’’ as defined in the INA, as to reinstate INA section 245(i), 8 U.S.C. the provisional unlawful presence amended by the CSPA. Thus, an aged- 1255(i). Others asked if DHS could waiver. The provisional unlawful out child may still qualify as an reduce the number of years an alien presence waiver is only valid for the ‘‘immediate relative’’ for purposes of must remain outside the United States purpose of seeking an immigrant visa access to the provisional unlawful because of unlawful presence under outside the United States. To avoid presence waiver process as long as the INA section 212(a)(9)(B), 8 U.S.C. confusion, DHS has updated the form child is classified as an immediate 1182(a)(9)(B). A few commenters also instructions to clarify that this relative under the INA. asked if DHS could include a waiver of INA section 212(a)(6)(C)(ii), 8 U.S.C. restriction only applies to individuals e. Statement From Applicant with a pending Form I–485, Application 1182(a)(6)(C)(i) (false claim to U.S. to Register Permanent Residence or One commenter suggested adding a citizenship). Some commenters asked Adjust Status. sentence in Part 5 of the instructions to DHS to grant waivers even if the explain that applicants may supplement applicants did not meet all statutory b. Limitations on Filing of Provisional their statements on extreme hardship requirements. One commenter said that Unlawful Presence Waivers and factors warranting a favorable DHS should eliminate the discretionary Many commenters suggested that DHS exercise of discretion with an attached portion of the waiver in its entirety. remove the restriction to the number of letter. DHS added the information as Others wanted DHS to simply grant times an individual may seek a requested to the Form I–601A legal status to individuals married to provisional unlawful presence waiver or instructions. U.S. citizens, irrespective of whether modify it to allow re-filing of the f. Penalties they had an approved petition or provisional unlawful presence waiver needed a provisional unlawful presence application. One commenter suggested adding a waiver. They argued that if an DHS considered these comments and reminder in the instructions that individual is the spouse of a U.S. citizen has changed the final rule to reflect that applicants read the section entitled then such an individual should simply if an individual’s provisional unlawful ‘‘Penalties’’ before the applicant signs be able to become a LPR of the United presence waiver request is denied or the application. DHS added the States. withdrawn prior to final adjudication, reminder on the form and in the form Congress has prescribed the statutory the individual may file a new Form I– instructions, as requested. requirements for obtaining LPR status 601A, in accordance with the form g. Required Documents—Check List through adjustment of status in the instructions, with the required fees and United States. Congress also established One commenter suggested adding a any additional documentation that he or the current grounds of inadmissibility checklist to assist applicants with she believes might establish his or her and the conditions for any waivers information on the types of documents eligibility for the waiver. The associated with such grounds. DHS does and statements that should be submitted applicant’s case must still be pending not have the authority to change or with the provisional unlawful presence with DOS and the applicant must notify dispense with those statutory waiver application. DHS added a DOS of his or her intent to file a new requirements. DHS cannot reinstate INA separate section with a checklist as Form I–601A. section 245(i), 8 U.S.C. 1225(i), or take Alternatively, the individual can file requested. any action that would grant permanent a Form I–601, Application for Waiver of h. Unauthorized Practice of Immigration resident status to individuals who do Grounds of Inadmissibility with the Law not meet the statutory requirements for that status. Only Congress can amend USCIS Lockbox, after he or she attends One commenter suggested adding a the statutory requirements that the immigrant visa interview and after warning regarding the unauthorized individuals must meet to qualify for DOS conclusively determines that the practice of immigration law. individual is inadmissible. DHS has DHS agrees with this suggestion. In adjustment of status. DHS, therefore, updated the form and instructions 2011, USCIS started an initiative—the cannot adopt these recommendations. accordingly. Unauthorized Practice of Immigration However, DHS supports comprehensive immigration reform, and DHS will c. Qualifying Relatives Law (UPIL) initiative—to educate the public about potential fraud and scams implement any legislation that may be One commenter suggested adding in the immigration context. USCIS has enacted by Congress, including any ‘‘child’’ as a qualifying relative for posted information about the UPIL authorized extension of INA section establishing extreme hardship. DHS initiative on its Web site. DHS 245(i), 8 U.S.C. 1225(i). cannot adopt this suggestion because encourages applicants to review the Congress limited the qualifying 2. Fraud Detection and Prevention; information at www.uscis.gov/ relationship for purposes of establishing National Security avoidscams. DHS also has added a link extreme hardship to spouses or parents. Some commenters argued that the to this Web site on the form DHS cannot change this statutory Federal Government’s focus should be instructions. requirement. on enforcement and deterring illegal J. Miscellaneous Comments entry and marriage fraud. Others opined d. Child Status Protection Act that the provisional unlawful presence One commenter asked DHS to clarify 1. Statutory Changes waiver process was a ‘‘back door’’ in the Form I–601A instructions how A large number of supporters of the through which illegal immigrants who the provisional unlawful presence rule indicated that the proposed rule pose a threat to national security could waiver relates to children who benefit did not go far enough. The commenters be granted a waiver and LPR status. from the CSPA. DHS has added asked DHS to allow individuals who A core mission of DHS is to protect language to the Form I–601A were eligible for the provisional national security, public safety, and the

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integrity of the immigration process. petitioner and the conditional the AAO has reduced processing time DHS has a number of preventative permanent resident fail to do so, the from 27 to 19 months, and reduced the measures in place, as provided by law alien’s conditional permanent resident number of cases in the backlog by more and through agency policy, to address status is terminated automatically, and than 1,400. USCIS anticipates this rate matters relating to national security and any waiver granted in connection with of reduction to continue and plans on fraud. DHS incorporates these measures the status under INA sections 212(h) or reducing processing time for waivers to through regulations and standard (i), 8 U.S.C. 1182(h) or (i), is 6 months by June 2013. These various operating procedures that bolster the automatically terminated. Furthermore, efforts demonstrate the Department’s adjudications process. USCIS’s Fraud if USCIS determines that the marriage continued commitment to timely Detection and National Security (FDNS) was entered into to evade the adjudication of waivers and customer Directorate focuses on its fraud and immigration laws, USCIS cannot service with the resources available. national security mission. FDNS approve future petitions for that alien. 4. Other Immigrant Visa Requirements investigates fraud and national security See INA section 204(c), 8 U.S.C. 1154(c). issues relating to the immigration USCIS also reserves the authority, as it A few commenters suggested that benefit process and makes appropriate does generally for other benefit requests, individuals who are eligible for the referrals to ICE, DOJ, and other law to interview the alien and the U.S. provisional unlawful presence waiver enforcement agencies. USCIS has citizen spouse in connection with the should have the option to complete the established standard operating provisional unlawful presence waiver medical examination required for procedures in field offices for referrals application in the exercise of discretion. immigrant visa issuance in either the to FDNS on potential fraud cases that Another preventive measure is the United States or abroad. DHS did not may require additional review. USCIS’s provisional unlawful presence waiver adopt this suggestion. Office of Policy and Strategy is requirement that the applicant appear DOS has jurisdiction for health- responsible for developing future for biometrics capture at a USCIS related inadmissibility determinations benefit fraud assessments. For fraud Application Support Center (ASC). The in the overseas immigrant visa prevention, FDNS has initiated fraud biometrics requirement allows USCIS to application context; DOS, therefore, training for Immigration Services run thorough background and security requires immigrant visa applicants to Officers (ISOs) to detect any patterns or checks on individuals seeking an have the required medical examination increase in fraudulent practices in a immigration benefit to determine if an performed by a DOS-designated panel particular application type or area of the alien is not only potentially subject to physician abroad. See 22 CFR 42.66. United States. Additionally, USCIS other grounds of inadmissibility or not DOS and the Centers for Disease Control already has processes in place, eligible for a favorable exercise of and Prevention within the Department including requiring additional discretion, but also whether the alien of Health and Human Services set the interviews and home site visits, poses a national security or public criteria and parameters for these conducted by specially trained safety risk. medical exams depending on country conditions. While USCIS has designated immigration officers throughout the 3. Backlog Reduction United States, to assess whether a civil surgeons for certifications in other marriage was entered into to evade One commenter suggested that DHS contexts, these civil surgeons are not immigration laws. These processes first clear all application backlogs recognized by DOS and therefore cannot provide strong tools for combating abroad and at the AAO before complete the required medical potential fraud. implementing any new process. examination for purposes of the visa Congress provided several measures Commenters also indicated that DHS issuance abroad. Operationally, aimed at preventing marriage fraud, should give special consideration to allowing provisional unlawful presence focusing especially on the potential for individuals who have a pending waiver waiver applicants to complete the fraud in marriages of less than two application that was filed abroad. medical examination in the United years’ duration. For instance, Congress USCIS has already undertaken several States could cause delays and backlogs mandated that aliens married less than efforts to reduce the backlogs in at DOS. DHS, therefore, will not adopt two years generally are subject to adjudication, both abroad and at the this suggestion. conditional resident status for two years AAO. As of June 4, 2012, USCIS has implemented centralization of certain 5. Departure Requirement and Third- after admission as an immigrant. See Country Processing INA section 216, 8 U.S.C. 1186a; 8 CFR Form I–601 filings in the United States. part 216; 8 CFR 235.11. Once USCIS USCIS has dedicated additional Several commenters asked why approves an immediate relative petition resources on a temporary basis to approved provisional unlawful presence for an alien married to a U.S. citizen, expeditiously process the cases filed waiver applicants are required to return and DOS determines that the alien is prior to centralization. USCIS to their home country to complete the admissible and eligible for an immigrant anticipates that the residual cases filed immigrant visa requirement. The visa, the alien can seek admission to the prior to centralization and during the commenters suggested that these United States as an LPR. If, however, the transition period that recently ended on applicants should not have to travel to alien married the U.S. citizen less than December 4, 2012, will be completed a dangerous place like Ciudad Juarez, two years before the date of admission, within about six months of the effective Mexico, but instead complete their the alien is admitted conditionally for a date of this final rule. By moving most process in a safe third country like two-year period. of the adjudication case load to the Canada. Many commenters said that In general, the U.S. citizen petitioner United States for these cases, USCIS requiring individuals to depart would and the conditional permanent resident expects to reduce the filing and have a significant impact on U.S. citizen must jointly seek to remove the processing times for overseas filers of family members, especially if the conditions within the 90-day period Form I–601. individual is the primary financial immediately preceding the second The AAO has also undertaken various provider for the family. The commenters anniversary of the date the alien backlog reduction efforts in the context also said that departure would cause obtained conditional permanent of administrative appeals. Since July U.S. citizen family members to become residence status. If the U.S. citizen 2011, the waiver adjudication branch of dependent on the U.S. Government if

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the immediate relative had to remain broken immigration system as a whole. applicants and attorneys could file outside of the United States for a While the commenters generally online, they would save money, time, prolonged period of time. Several other supported some type of CIR, their views paper, and the mailing costs that commenters suggested that DHS on what should be included in a CIR bill currently accompany paper filings. The eliminate the departure requirement varied significantly. commenters stated that E-filing is altogether or at least allow provisional Some commenters stated that CIR is consistent with USCIS’s current unlawful presence waiver applicants to needed to legalize the current immigrant Transformation Initiative. be interviewed in the United States or population in the United States and to DHS agrees with the commenters that pick up their immigrant visa at their create guest worker programs that will it should move toward electronic filing country’s embassy in the United States. benefit the U.S. economy. The of immigration benefits. In fact, USCIS Finally, several Congressional commenters argued that legalization already is transforming its immigration commenters urged DHS to coordinate will result in significant economic benefit process and recently launched with DOS so that provisional unlawful benefits to the United States and help its new electronic filing and presence waiver applicants do not have solve many of our current immigration adjudication system known as USCIS to return home. The commenters stated problems. These commenters supported Electronic Immigration System (USCIS that the departure requirement should the idea of reuniting U.S. citizen ELIS). USCIS ELIS allows individuals to be eliminated entirely or, alternatively, families and stated that the establish a USCIS ELIS online account that DOS should identify additional Administration should focus on legal and, currently, to apply online for an consulates for processing of the immigration and naturalization to extension or change of their provisional unlawful presence waiver ensure that immigrants are fully aware nonimmigrant status for certain visa and immigrant visa issuance. The of the rights and opportunities available types. USCIS ELIS also enables USCIS commenters also suggested that DOS’s to them. officers to review and adjudicate online NVC could assign immigrant visa Many commenters opposed the filings from multiple agency locations petitions and provisional unlawful provisional unlawful presence waiver across the country. USCIS believes that presence waiver applications to process because they believed it would the Transformation Initiative is an designated consular posts in safe and encourage illegal immigration and that important step forward for the agency convenient locations, citing the it was a form of ‘‘backdoor amnesty.’’ and is working to expand system authority as part 9 of the Foreign Affairs Some commenters believed that features and functionality in additional Manual (FAM) section 42.61, Note 2.1. Congress should enact stronger releases this calendar year and beyond. Finally, the commenters said that DHS penalties against those who enter In future releases of USCIS ELIS, USCIS should consider using its parole illegally and enforce the current laws will add form types and functions, authority broadly to eliminate the need against those who deliberately violated including waivers of inadmissibility, for immediate family members to travel U.S. immigration law. The commenters gradually expanding the system to cover abroad to obtain an immigrant visa to also believed that the focus should be filing and adjudication of all USCIS which they are entitled under current on border security and legal immigration benefits. USCIS will notify law. immigration, not on aliens who made the public when such expansions and DOS has jurisdiction over consular the choice to come to the United States additions of form types occur. processing and setting the location for illegally. One commenter noted that the K. Comments on the EO 12866/13563 immigrant visa application filing and current immigration policy was not Analysis interviews. See 22 CFR 42.61. DHS, working and that the United States therefore, will not alter this requirement needs a ‘‘comprehensive top down DHS received several comments on and, as stated above, cannot change the rewrite’’ of all the immigration laws. A the volume projection included in the statutory requirements for adjustment of few commenters were opposed to the analysis, especially as it relates to the status in the United States. In response provisional unlawful presence waiver DHS projection of additional demand. to the request for DHS to broadly use its process because they believed it was Many commenters believed that parole authority for provisional politically motivated and not designed application volume is understated. One unlawful presence waiver applicants, to fix the current immigration system. commenter stated that the Federal DHS will continue to exercise its Fixing the current immigration system Government stands to earn over one authority to parole applicants for is a top priority for DHS, and the billion dollars from the change. Another admission into the United States on a Administration is committed to commenter suggested that DHS examine case-by-case basis, reviewing the unique comprehensive immigration reform. rates of use of health care and public circumstances and facts that relate to Congress has the power to amend the education as points for comparison in each individual’s case to determine immigration laws to create a workable determining demand for the provisional whether the individual’s circumstances system that unites families, improves unlawful presence waiver. This warrant a discretionary grant of parole the U.S. economy, and preserves commenter suggested that using based on urgent humanitarian factors or national security and public safety. undocumented immigrant access to as a significant public benefit. INA USCIS will do everything possible to health care and public education as section 212(d)(5), 8 U.S.C. 1182(d)(5). prepare for successful implementation models will reveal that the provisional With this rule, DHS is not changing its of any comprehensive immigration unlawful presence waiver is at risk for current policy on the use of its parole reform legislation and ensure that the underuse. Many commenters noted that authority. integrity of the U.S. immigration system the costs of obtaining an immigrant visa is maintained. limit those who can afford to apply for 6. Comprehensive Immigration Reform the provisional unlawful presence Many commenters, including 7. Transformation waiver and that increasing the cost with numerous individuals who signed group Several commenters urged DHS to required biometric submission is petitions, said that the focus should be convert the provisional unlawful another barrier to participation. A on comprehensive immigration reform presence waiver process and immigrant commenter was concerned the cost of (CIR) rather than a ‘‘patchwork’’ of small visa process to an electronic process. this rule would add to the national debt. initiatives that do not fix the current The commenters believed that if Another commenter argued that current

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immigration laws and the provisional 1. Section 103.7(c)(3)(i) proceedings before EOIR. See section unlawful presence waiver rule 212.7(e)(1).17 disproportionately impact children of In the proposed rule, DHS noted in 4. Section 212.7(e)(2) immigrant families who have a greater the supplementary text that applicants likelihood to be either low-income or for a provisional unlawful presence DHS restructured this provision and living under the poverty line and are not waiver cannot seek a fee waiver for the added language to make clear that as likely to have resources needed to Form I–601A filing fees or the required approval of the provisional unlawful make use of the waiver option. biometric fees. See 77 FR at 19910. DHS presence waiver is discretionary and As stated repeatedly throughout the incorrectly referenced proposed does not constitute a grant of any lawful analysis, DHS was unable to precisely regulatory text at 8 CFR 103.7(b)(1)(i)(C) immigration status or create a period of project application volumes for the and inadvertently omitted the correct stay authorized by the Secretary for provisional unlawful presence waiver citation to the regulatory provision purposes of INA section 212(a)(9)(B), 8 due to unavailability of data on those being amended and the amendatory U.S.C. 1182(a)(9)(B). See section who are unlawfully present. Historical text. DHS has corrected this error and 212.7(e)(2)(i). DHS also clarified that a estimates show only aliens who have has included an amendment to 8 CFR pending or approved provisional taken the steps to obtain an immigrant 103.7(c)(3)(i) in this final rule to clarify unlawful presence waiver does not visa. DHS did conduct a reasonable that fee waivers are not available for the authorize any interim benefits such as methodological approach based on biometric fee or filing fees for the Form employment authorization or advance those who have made use of I–601A. See section 103.7(c)(3)(i). parole. See section 212.7(e)(2)(ii). inadmissibility waivers under the 2. Section 212.7(a)(4)(iv) 5. Section 212.7(e)(3) current process. Many commenters asked DHS to DHS does not believe that using DHS proposed an amendment to 8 expand eligibility for the provisional public health and education records CFR 212.7(a)(4) to provide that unlawful presence waiver process to would better refine our estimates. As the termination of an alien’s conditional other categories of aliens seeking to commenter noted, these services are LPR status also would result in immigrate to the United States. underutilized by undocumented automatic revocation of an approved DHS considered the commenters’ immigrants. Furthermore, neither these waiver of inadmissibility. See 77 FR at suggestions but is limiting the models nor the others that were 19912 and 19921. Several commenters provisional unlawful presence waiver to examined differentiate undocumented noted that INA section 216(f), 8 U.S.C. immediate relatives of U.S. citizens. immigrants with U.S. citizen immediate 1186a(f), only allows for automatic After assessing the effectiveness of the relatives from those undocumented revocation of waivers of inadmissibility provisional unlawful presence waiver immigrants with other immigrant/ approved under INA sections 212(h) process and its operational impact, citizen family compositions. Since only and (i), 8 U.S.C. 1182(h) and (i). DHS DHS, in consultation with DOS and immediate relatives of U.S. citizens may agrees and has revised the amendment other affected agencies, will consider apply for provisional unlawful presence to 8 CFR 212.7(a)(4) to clarify that expanding the provisional unlawful waivers, DHS does not believe that automatic revocation of approved presence waiver process to other using the suggested models will offer a waivers upon termination of conditional categories. more reliable means of estimating the resident status only applies to approved 6. Former Section 212.7(e)(4)(ii)(H) additional demand. waivers based on INA section 212(h), 8 While DHS acknowledges that the U.S.C. 1182(h) (waivers for certain DHS initially proposed to reject a provisional unlawful presence waiver costs of obtaining an immigrant visa criminal offenses) and INA section application if an alien has not indicated may be a constraint on demand, and 212(i), 8 U.S.C. 1182(i) (waivers for on the application that the qualifying agree these costs will have more impact fraud or willful misrepresentation of a relative is a U.S. citizen spouse or on low-income immigrant families, the material fact). See section parent. See 77 FR at 19922. DHS has only additional cost of the provisional 212.7(a)(4)(iv). unlawful presence waiver process determined that this criterion is more beyond the existing waiver process is 3. Section 212.7(e)(1) appropriate for an adjudicative decision the costs incurred for submitting and that this assessment should not be biometrics. Relative to the other costs, During discussions about the made through a review during the biometric costs represent approximately proposed provisional unlawful presence intake process. Thus, DHS has deleted eight percent of the total cost of waiver process and how it would affect this rejection criterion in the final rule. aliens in removal proceedings, a obtaining an immediate relative 7. Section 212.7(e)(4)(iv) immigrant visa. The costs of obtaining question arose regarding the authority of DHS proposed excluding aliens from an immigrant visa are not costs of this DOJ IJs and whether IJs would the provisional unlawful presence rule. Finally, this final rule will not add adjudicate Forms I–601A for aliens in waiver process who were already to the national debt. As explained in the removal proceedings. DHS determined scheduled for their immigrant visa proposed rule at 77 FR 19919, this final that it would be more efficient and rule is not expected to impose appropriate to have Form I–601A waivers centralized and adjudicated by 17 Under 8 CFR 1240.1(a)(1)(ii), immigration additional costs on the federal judges (IJs) have authority to adjudicate certain government since the fee revenues one agency, USCIS, especially given the waiver applications made by aliens in removal collected should offset the form streamlined nature of the process and proceedings. However, IJs will not be adjudicating processing cost. the need for close coordination with provisional unlawful presence waiver applications DOS once a waiver is decided. DHS, under this rule because all aliens who are in V. Regulatory Amendments removal proceedings—including those whose cases therefore, added a new paragraph to were administratively closed and have been DHS adopted most of the proposed clarify that the Application for recalendared or who are subject to an regulatory amendments without change, Provisional Unlawful Presence Waiver, administratively final order of removal are Form I–601A, will be filed only with ineligible for the provisional unlawful presence except for the following provisions waiver by operation of this final rule. See 8 CFR noted below: USCIS even if an alien is in removal 212.7(e)(4).

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interviews with DOS. See 77 FR at from the provisional unlawful presence or the alien was a victim of individuals 19921. DHS has retained this waiver process, except those whose: (1) or entities not authorized to practice requirement. DHS now adds language to Removal proceedings had been immigration law. For these reasons, the final rule to clarify when an alien is terminated or dismissed; (2) Notices to DHS agrees that a one-time filing ineligible for a provisional unlawful Appear (NTAs) had been cancelled; and limitation is too restrictive and is presence waiver because of a previously (3) cases had been administratively removing the single-filing limitation in scheduled immigrant visa interview. closed but subsequently were reopened this final rule. If an individual’s USCIS will first look at whether the to grant voluntary departure. See 77 FR provisional unlawful presence waiver scheduled immigrant visa interview is at 19922. In this final rule, DHS allows request is denied or withdrawn, the based on the approved immediate aliens in removal proceedings to individual may file a new Form I–601A, relative petition (I–130 or I–360) that participate in this new provisional in accordance with the form accompanies the Form I–601A. If it is, unlawful presence waiver process but instructions and with the required fees. USCIS will then look at the Department only if their removal proceedings are The applicant’s case must still be of State’s Consular Consolidated administratively closed and have not pending with DOS, and the applicant Database (CCD) to determine the date on been recalendared at the time of filing must notify DOS that he or she intends which the Department of State initially the Form I–601A. See section to file a new Form I–601A. In the case acted to schedule the applicant for his 212.7(e)(4)(v). Through this final rule, of a withdrawn Form I–601A, USCIS or her immigrant visa interview (i.e., the the Form I–601A and its accompanying will not refund the filing fees because date of scheduling itself and not the instructions, and additional information USCIS has already undertaken steps to date and time the applicant must appear published on the USCIS Web site, DHS adjudicate the case. for the interview). also will notify such applicants that, if Alternatively, an individual who If the date that the Department of granted a provisional unlawful presence withdraws his or her Form I–601A filing State initially acted to schedule the waiver, applicants should seek prior to final adjudication, or whose immigrant visa interview is prior to the termination or dismissal of their Form I–601A is denied, can apply for a date of publication of this final rule, removal proceedings. The request for Form I–601, Application for Waiver of January 3, 2013, then the alien is termination or dismissal should be Grounds of Inadmissibility with the ineligible to apply for a provisional granted before they depart for their USCIS Lockbox, after he or she attends unlawful presence waiver. If the date immigrant visa interviews to avoid the immigrant visa interview and after that Department of State initially acted possible delays in their immigrant visa DOS conclusively determines that the to schedule the immigrant visa processing or risk becoming ineligible individual is inadmissible. DHS, interview is on or after the publication for the immigrant visa based on another therefore, has removed this provision date of this final rule, the alien is ground of inadmissibility. See section from the final rule. eligible to apply for a provisional 212.7(e)(2). Finally, DHS made unlawful presence waiver. The actual conforming changes to the filing 10. Section 212.7(e)(5)(ii) date and time that the alien is scheduled requirements in section 212.7(e)(5)(i) to DHS corrected a typographical error to appear for the interview is not include aliens who are in removal in the prefatory language to this section, relevant for the eligibility proceedings that are administratively removing the term ‘‘application’’ the determination. This rule applies even if closed and have not been recalendared second time it appears in the paragraph. the alien failed to appear for his or her at the time of filing the Form I–601A. See section 212.7(e)(5)(ii). interview, cancelled the interview, or requested that the interview be 9. Section 212.7(e)(4)(ix) 11. Section 212.7(e)(5)(ii)(A) rescheduled. Therefore, USCIS may For operational reasons, DHS initially DHS proposed a list of rejection reject or deny any Form I–601A filed by proposed rejecting applications filed by criteria for Forms I–601A filed at the an alien who USCIS determines that the aliens who had previously filed a Form Lockbox, including the criterion to Department of State, prior to the date of I–601A provisional unlawful presence reject for failure to pay the required or publication of this final rule, initially waiver application with USCIS. DHS correct fee for the waiver application. acted to schedule the alien’s immigrant designed the provisional unlawful See 77 FR 19922. DHS inadvertently visa interview for the approved presence waiver process to streamline referenced the biometric fee as a basis immediate relative petition upon which waiver and immigrant visa processing for rejection in the supplementary the Form I–601A is based. See section by closely tying adjudication of the information. See 77 FR 19911. DHS has 212.7(e)(4)(iv). Form I–601A to the NVC’s immigrant modified the regulatory text to make An alien who is ineligible to apply for visa processing schedule. DHS clear that a Form I–601A will only be a provisional unlawful presence waiver considered the potential impact of rejected for failure to pay the required because of a previously scheduled multiple filings on this schedule, the or correct filing fee and not the immigrant visa interview may still possible delays to the immigrant visa biometric fee. See section qualify for a provisional unlawful process, and the potential for agency 212.7(e)(5)(ii)(A). Individuals who have presence waiver if he or she has a new backlogs. failed to pay the required or correct DOS immigrant visa case because (1) Many commenters, however, biometric fee will be notified of that DOS terminated the immigrant visa expressed concern that limiting the failure. 8 CFR 103.17(b). USCIS will not registration associated with the program to one-time filings could process or adjudicate applications filed previously scheduled interview, and potentially exclude individuals who by individuals who do not pay the they have a new immediate relative otherwise would qualify for the required or correct biometric fee. petition; or (2) the alien has a new provisional unlawful presence waiver. 12. Section 212.7(e)(5)(ii)(G) immediate relative petition filed on his Upon consideration of these or her behalf by a different petitioner. comments, DHS agrees that an alien DHS proposed rejecting provisional could have compelling reasons for filing unlawful presence waiver applications 8. Section 212.7(e)(4)(v) another provisional unlawful presence filed by aliens who were already DHS initially proposed excluding all application, especially in cases where scheduled for their immigrant visa aliens who were in removal proceedings an alien’s circumstances have changed interviews with DOS. See 77 FR at

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19921. DHS has retained this presence waiver could not file a new rule that may result in a $100 million or requirement. DHS now adds language to Form I–601A. Instead, such aliens more expenditure (adjusted annually for the final rule to clarify when an alien is would have to leave the United States inflation) in any one year by State, local, ineligible for a provisional unlawful for their immigrant visa interviews and and tribal governments, in the aggregate, presence waiver because of a previously file a Form I–601, Application for or by the private sector. scheduled immigrant visa interview. Waiver of Grounds of Inadmissibility, Although this rule does exceed the USCIS will first look at whether the after the Department of State $100 million expenditure threshold scheduled immigrant visa interview is determined they were inadmissible. (adjusted for inflation), this rulemaking based on the approved immediate Some commenters were concerned that does not contain such a mandate. The relative petition (I–130 or I–360) that limiting aliens to a single filing of an I– provisional unlawful presence waiver accompanies the Form I–601A. If it is, 601A would potentially bar aliens from process is a voluntary program for aliens USCIS will then look at the Department qualifying for a provisional unlawful that are immediate relatives of U.S. of State’s Consular Consolidated presence waiver, especially when they citizens intending to become legal Database (CCD to determine the date on may have experienced changed permanent residents. The requirements which the Department of State initially circumstances that would result in of Title II of the Act, therefore, do not acted to schedule the applicant for his extreme hardship to the U.S. citizen apply and DHS has not prepared a or her immigrant visa interview (i.e., the spouse or parent. In light of these statement under the Act. date of scheduling itself and not the concerns, DHS has amended this final B. Small Business Regulatory date and time the applicant must appear rule to allow aliens who are denied a Enforcement Fairness Act of 1996 for the interview). provisional unlawful presence waiver to If the date that the Department of file another Form I–601A, based on the DHS considers this rule a major rule as defined by section 804 of the Small State initially acted to schedule the original approved immigrant visa Business Regulatory Enforcement immigrant visa interview is prior to the petition. Denial of an application for a Fairness Act of 1996. DHS was not able date of publication of this final rule, provisional unlawful presence waiver is to estimate with precision the increase January 3, 2013, then the alien is without prejudice to the alien filing in demand due to this rule; therefore, ineligible to apply for a provisional another provisional unlawful presence we estimated costs using range scenario unlawful presence waiver. If the date waiver application under paragraph (e) analysis. The final rule expanded that Department of State initially acted provided the alien meets all of the eligibility for the provisional unlawful to schedule the immigrant visa requirements. The alien’s case must be presence waiver process to aliens in interview is on or after the publication pending with the Department of State date of this final rule, the alien is removal proceedings whose cases have and the alien must notify the been or will be administratively closed, eligible to apply for a provisional Department of State that he or she unlawful presence waiver. The actual provided that the case has not been intends to file a new Form I–601A. date and time that the alien is scheduled recalendared at the time of Form I–601A to appear for the interview is not 14. Section 212.7(e)(10) filing and that the alien is otherwise eligible. Due directly to this expansion, relevant for the eligibility DHS has amended this provision to there is a possibility that the rule will determination. This rule applies even if allow an applicant to withdraw a have an impact on the economy of $100 the alien failed to appear for his or her previously-filed provisional unlawful million or more in the first year of immigrant visa interview, cancelled the presence waiver application prior to implementation. If demand for the interview, or requested that the final adjudication and file another Form provisional unlawful presence waiver interview be rescheduled. Therefore, I–601A. See section 212.7(e)(10). USCIS may reject or deny any Form I– increases by 50 percent, 75 percent, or 601A filed by an alien if USCIS 15. Section 212.7(e)(14)(iv) 90 percent, then the total impact on the economy would be approximately determines that the Department of State, DHS clarified the language in section $107.8 million (undiscounted), $157.8 prior to the date of publication of this 212.7(e)(14)(v) to specify that a million (undiscounted), or $187.7 final rule, initially acted to schedule an provisional unlawful presence waiver is million (undiscounted), respectively, in initial immigrant visa interview for the automatically revoked if the alien, at the first year. By year 2, the total impact approved immediate relative petition any time before or after the approval of to the economy if demand for the upon which the Form I–601A is based. the provisional unlawful presence provisional unlawful presence waiver See section 212.7(e)(4)(iv). waiver, or before the immigrant visa is An alien who is ineligible to apply for increases by 50 percent, 75 percent, or issued, reenters or attempts to reenter 90 percent, is $33.2 million a provisional unlawful presence waiver the United States without being because of a previously scheduled (undiscounted), $45.7 million admitted or paroled. See section (undiscounted), or $53.1 million immigrant visa interview may still 212.7(e)(14)(iv). qualify for a provisional unlawful (undiscounted), respectively. The presence waiver if he or she has a new VI. Statutory and Regulatory impact of the rule is directly associated DOS immigrant visa case because (1) Requirements with the increased demand in legalizing DOS terminated the immigrant visa immigration status by applying for legal A. Unfunded Mandates Reform Act of permanent resident status via consular registration associated with the 1995 previously scheduled interview, and processing and participating in the they have a new immediate relative The Unfunded Mandates Reform Act provisional unlawful presence waiver petition; or (2) the alien has a new of 1995 (UMRA) is intended, among process. The impact includes filing fees, immediate relative petition filed on his other things, to curb the practice of time, and travel costs of complying with or her behalf by a different petitioner. imposing unfunded Federal mandates this final rule. The costs of this final See section 212.7(e)(5)(ii)(G). on State, local, and tribal governments. rule will fall exclusively on alien Title II of the Act requires each Federal immediate relatives of U.S. citizens that 13. Section 212.7(e)(9) agency to prepare a written statement reside in the United States and must DHS initially proposed that aliens assessing the effects of any Federal request a waiver for unlawful presence. who were denied a provisional unlawful mandate in a proposed or final agency This rule will not result in a major

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increase in costs or prices; or significant rule, DOS published an updated fee A key uncertainty that impacts any adverse effects on competition, schedule for consular services which cost estimate of this rule is the employment, investment, productivity, did the following with respect to this uncertainty involving the actual number innovation, or on the ability of United rule: (1) Reduced the immediate relative of people that will avail themselves of States-based companies to compete with visa fee from $330 to $230; (2) increased this streamlined provisional unlawful foreign-based companies in domestic the immigrant visa security surcharge presence waiver process. DHS is not and export markets. fee from $74 to $75; and (3) aware of any data that will allow us to discontinued charging a separate fee for C. Executive Orders 12866 (Regulatory estimate with precision the increase in the immigrant visa surcharge and Planning and Review) and 13563 demand due to this rule. In this final instead embedded the fee in the (Improving Regulation and Regulatory rule DHS has made the careful immigrant visa application fees.18 DHS Review) determination to expand eligible has incorporated these changes and participation to aliens in removal Executive Orders 12866 and 13563 updated data into our final analysis. proceedings whose cases are direct agencies to assess the costs and DHS estimates the discounted total administratively closed and have not benefits of available regulatory ten-year cost of this rule will range from been recalendared at the time of filing alternatives and, if regulation is approximately $196 million to the Form I–601A, and who are necessary, to select regulatory approximately $538.1 million at a seven otherwise eligible for the provisional approaches that maximize net benefits percent discount rate. Compared with unlawful presence waiver. DHS has (including potential economic, the current waiver process, this rule accounted for any potential additions to environmental, public health and safety requires that provisional unlawful the volume estimate as a result of these effects, distributive impacts, and presence waiver applicants submit changes in the final analysis. Statistics equity). Executive Order 13563 biometric information. Included in the compiled by the Department of Justice emphasizes the importance of total cost estimate is the cost of (DOJ) Executive Office of Immigration quantifying both costs and benefits, of collecting biometrics, which we Review (EOIR) indicate there have been reducing costs, of harmonizing rules, estimate will range from approximately a total of 70,276 cases that were and of promoting flexibility. This rule is $32.9 million to approximately $56.6 administratively closed at the a ‘‘significant regulatory action’’ that is million discounted at seven percent immigration courts or the Board of economically significant under section over ten years. Also included in the Immigration Appeals (BIA) where the 3(f)(1) of Executive Order 12866. total cost estimate are the costs faced by sole charge is INA 212(a)(6)(A)(i).19 DHS Accordingly, the Office of Management those who choose to file a new has no way of knowing precisely how and Budget has reviewed this provisional unlawful presence waiver many of the 70,276 cases are immediate regulation. This effort is consistent with application based on the same approved relatives of U.S. citizens and are Executive Order 13563’s call for immediate relative petition if their otherwise eligible for the provisional agencies to ‘‘consider how best to original Form I–601A is denied or unlawful presence waiver, so we have promote retrospective analysis of rules withdrawn, which DHS decided to applied similar range analysis to that may be outmoded, ineffective, allow in response to public comments to estimate the additional population surge insufficient, or excessively burdensome, the proposed rule. Aliens that file a new resulting from the influx of cases and to modify, streamline, expand, or Form I–601A will still face the previously administratively closed. In repeal them in accordance with what biometric and Form I–601A filing fees addition to this static influx that could has been learned.’’ and opportunity costs, which we occur with previously administratively estimate will range from approximately 1. Summary closed cases, permitting aliens in $56.2 million to approximately $96.7 removal proceedings whose cases are The final rule will allow certain million discounted at seven percent administratively closed when this rule immediate relatives of U.S. citizens who over ten years. In addition, as this rule becomes effective or administratively are physically present in the United significantly streamlines the current closed but not recalendared at the time States to apply for a provisional process, DHS expects that additional of filing the Form I–601A could add unlawful presence waiver of the 3-year applicants will apply for the provisional approximately 700 to 2,500, annually, to or 10-year bar for accrual of unlawful unlawful presence waiver compared to our volume estimate. Lastly, allowing presence prior to departing for consular the current waiver process. To the processing of their immigrant visa. This extent that this rule induces new applicants the ability to re-file a Form new provisional unlawful presence demand for immediate relative visas, I–601A if the initial application was waiver process will be available to an additional immigration benefit forms, denied or withdrawn will result in an alien whose only ground of such as the Petitions for Alien Relative, increase to our volume estimates. A inadmissibility is, or would be, the 3- Form I–130, will be filed compared to review of USCIS Form I–601 processing year or 10-year unlawful presence bar. the pre-rule baseline. These additional statistics indicated a denial rate of 34%. DHS anticipates that the changes made forms will involve fees being paid by A review of USCIS completion statistics in this final rule will result in a applicants to the Federal Government for the current I–601 waiver process did reduction in the time that U.S. citizens for form processing and additional not indicate a statistical trend for are separated from their alien immediate opportunity costs of time being incurred withdrawals. DHS has assumed in this relatives, thus reducing the financial by applicants to provide the information final analysis that the same denial rate and emotional hardship for these required by the forms. The cost estimate of 34% will apply for the provisional families. In addition, the Federal for this rule also includes the impact of waiver for unlawful presence Government will achieve increased this induced demand, which we application, and in an effort to present efficiencies in processing immediate estimate will range from approximately the maximum projected impact, has relative visas for individuals subject to $106.9 million to approximately $384.8 the unlawful presence inadmissibility million discounted at seven percent 19 Source: Department of Justice, EOIR, Office of Planning, Analysis, and Technology; statistics bar. over ten years. include cases completed from January 1, 1992– Since publication of the proposed December 5, 2012. Data compiled on December 5, provisional unlawful presence waiver 18 See 77 FR 18907. 2012.

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calculated cost impacts based on the 25%, 50%, 75% and 90% compared to waiver process and also qualitative assumption that every applicant with a the existing waiver process. benefits. The annualized cost of this denied or withdrawn Form I–601A will Table 1 provides an estimate of the rule will range from approximately file a new Form I–601A. For cost annualized cost of this rule, in 2012 $27.9 million annualized to $76.6 estimating purposes, DHS has analyzed dollars, at three percent and seven million (7 percent discount rate) and the cost of an increase in demand of percent discount rates, over the range of approximately $27.4 million to $74.6 demand increases of 25%, 50%, 75%, million (3 percent discount rate). and 90% compared to the existing TABLE 1—ANNUALIZED COSTS AND BENEFITS [2013–2022, dollar amounts expressed in millions]

3% Discount rate 7% Discount rate Range analysis for demand increases by: Range analysis for demand increases by: 25% 50% 75% 90% 25% 50% 75% 90%

COSTS: Annualized monetized costs.... $27.4 $45.5 $63.7 $74.6 $27.9 $46.6 $65.4 $76.6

Annualized quantified, but None None unmonetized costs.

Qualitative (unquantified) costs None None

BENEFITS: Annualized monetized benefits None None

Annualized quantified, but This rule will reduce the amount of time that U.S. citizens are This rule will reduce the amount of time that U.S. citizens are unmonetized benefits. separated from their alien immediate relatives, thus reducing separated from their alien immediate relatives, thus reducing the financial and emotional hardship for these families. the financial and emotional hardship for these families.

Qualitative (unquantified) bene- Federal Government will achieve increased efficiencies by Federal Government will achieve increased efficiencies by fits. streamlining the processing immediate relative visas for indi- streamlining the processing immediate relative visas for indi- viduals subject to the unlawful presence inadmissibility bar. viduals subject to the unlawful presence inadmissibility bar.

2. Problems Addressed by the Rule determines there are no other immediate relatives that self-petition, Currently, aliens undergoing consular impediments to admissibility and that using USCIS Form I–360, as battered processing of their immediate relative the alien is otherwise eligible for spouses and/or children of U.S. citizens visas cannot apply for an unlawful issuance of the immigrant visa, the visa or LPRs are able to seek adjustment of presence waiver until the consular can be immediately issued. DHS status in the United States. While all officer determines that they are anticipates that this process change will immediate relative aliens can choose to inadmissible during their immigrant significantly reduce the amount of time pursue consular processing if they wish, visa interviews. The current unlawful U.S. citizens are separated from their due to the financial strain and family presence waiver process requires these immediate alien relatives. In addition, separation inherently involved in immediate relatives to remain abroad the changes will streamline the consular processing, we have chosen to until USCIS adjudicates the waiver. immigrant visa waiver process, thereby exclude aliens that are eligible to adjust DOS can only issue the immigrant visa increasing efficiencies for both USCIS status in the United States from this upon notification from USCIS that the and DOS in the issuance of immediate economic analysis. waiver has been approved. As relative immigrant visas. In most instances, aliens present in the United States without having been previously mentioned, the processing 3. The Population Affected by the Rule time under the current waiver process admitted or paroled are not eligible to can take over one year. Because of these As explained above, only certain adjust their status and must leave the lengthy processing times, U.S. citizens immediate relatives undergoing United States for immigrant visa may be separated from their immediate consular processing for an immigrant processing at a U.S. Embassy or relative family members for prolonged visa who would be inadmissible based consulate abroad. Because these aliens periods resulting in financial, on accrual of unlawful presence at the are present in the United States without emotional, and humanitarian hardships. time of the immigrant visa interview having been admitted or paroled, many Promoting family unification is an will be eligible to apply under the already have accrued more than 180 important objective of the immigration proposed waiver process. Immediate days of unlawful presence and, if so, laws. See Holder v. Martinez Gutierrez, relatives of U.S. citizens who are would become inadmissible under the 132 S. Ct. 2011, 2019 (2012). seeking adjustment of status in the unlawful presence bars upon their The final rule will permit certain United States are not affected. departure from the United States to immediate relatives to apply for a Immediate relatives who are eligible for attend their immigrant visa interviews. provisional unlawful presence waiver adjustment of status in the United States While there may be limited exceptions, prior to departing from the United generally include those who were the affected population would consist States. USCIS will adjudicate the admitted to the United States on almost exclusively of alien immediate provisional unlawful presence waiver nonimmigrant visas (student, tourist, relatives present in the United States and, if approved, provide notification to etc.) or who were paroled, including without having been admitted or DOS so that it is available to the those who are present in the United paroled. In addition, the final rule consular officer at the immigrant visa States after the expiration of their expands eligibility to aliens in removal interview. If the consular officer authorized periods of stay. In addition, proceedings whose cases are

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administratively closed and have not citizens rather than alien immediate imposed by the current process and been recalendared at the time of filing relatives, or the proportion of persons uncertainty related to the ultimate the Form I–601A and to aliens who are with unlawful presence who are the success of obtaining an approved in receipt of a charging document, relatives of LPRs rather than U.S. inadmissibility waiver. Notice to Appear, that has not yet been citizens.22 Nor do these data indicate The costs associated with normalizing filed with the immigration courts. In how many persons within these families a qualifying immediate relative’s status both of these instances the aliens must are under the age of 18 23 or have also may be a constraint to demand. still meet all other eligibility alternative methods of normalizing their These current costs include: 24 requirements in order to apply for the immigration status without having to 1. Petition for Alien Relative, Form I– provisional unlawful presence waiver. leave the United States and, 130, to establish a qualifying Finally, the final rule removes the one- consequently, are unlikely to be affected relationship to a U.S. citizen; cost to the time filing restriction and allows aliens by the provisional unlawful presence petitioner of fee paid = $420.00. to file a new provisional unlawful waiver process. 2. Application for Waiver of Grounds presence waiver application on the Data from different sources cannot be of Inadmissibility, Form I–601, to obtain same approved immediate relative reliably combined because of a waiver of inadmissibility for unlawful petition if the initial Form I–601A is differences in their total estimates for presence; cost to applicant of fee paid = denied or withdrawn prior to final different categories, the estimation and $585.00. adjudication. collection methodologies used, or other 3. Time and expense of preparing the DHS does not maintain data on the reasons of incompatibility. Absent evidence to support the ‘‘extreme number of immediate relatives present information on the number of aliens hardship’’ requirements for a waiver of in the United States who would qualify who are in the United States without inadmissibility. The evidentiary under the unlawful presence waiver having been inspected and admitted or requirements could include sworn process. The DHS Office of Immigration paroled and who are immediate statements from family members, Statistics (DHS OIS) estimates that the relatives of U.S. citizens, DHS cannot friends and acquaintances, medical population of unauthorized immigrants reliably estimate the affected population records, psychiatric/psychological (those present without admission or of the rule. records, school records, evidence of parole) residing in the United States is 4. Demand illness of family members, financial approximately 11.6 million as of information and tax returns, letters from January 2010.20 While all persons DHS expects that the final rule will teachers, support letters from churches affected by the rule are within the increase demand for both immigrant and community organizations, evidence estimated population of 11.6 million, it visa petitions for alien relatives and of health and emotional problems that is estimated that only a portion are applications for waivers of may result from the separation, and immediate relatives of U.S. citizens who inadmissibility. Existing demand is other such documentation; costs of meet the criteria required for the new constrained by the current process that evidentiary requirements are variable process. requires individuals to leave the United and based on the specific facts of Other estimates are equally States and be separated for individual cases. inconclusive on the number of unpredictable and sometimes lengthy 4. Travel from the United States to the immediate relatives of U.S. citizens who amounts of time from their immediate immediate relative’s home country or are subject to the unlawful presence relatives in the United States in order to country where the visa is being bars. For example, the Pew Hispanic obtain an immigrant visa to become an processed, and any additional living Trust estimates that there are 9.0 million LPR. Immediate relatives eligible for expenses required to support two 21 persons living in mixed status LPR status if issued a waiver of households while awaiting an inadmissibility may be reluctant to avail families in the United States that immigrant visa; cost of travel to themselves of the current process include at least one unauthorized adult consular interview are variable and because of the length of time that they alien and at least one U.S.-born child. dependent upon the specific may be required to wait outside the This, and associated information from circumstances of individual cases. United States before they can be the Pew Hispanic Trust, does not 5. Immigrant visa processing fees paid admitted as LPRs. provide a reliable means for the to: (a) The Department of State ($230), The provisional unlawful presence calculation of how many of the processed on the basis of a USCIS- individuals in these families are U.S. waiver process will allow an immediate relative who meets the eligibility criteria approved I–130 petition; and b) USCIS ($165). Total cost to the applicant of fees 20 to apply for a provisional unlawful Department of Homeland Security, Office of paid = $395.00. Immigration Statistics, Estimates of the presence waiver and receive a decision Unauthorized Immigrant Population Residing in the on that application before departing 6. An Affidavit of Support Under United States: January 2011, available at http:// from the United States for a consular Section 213A of the Act, Form I–864; www.dhs.gov/xlibrary/assets/statistics/ cost to petitioner of fee paid = $88.00. _ _ _ interview. This streamlined process may publications/ois ill pe 2011.pdf. Note: The OIS 7. Other forms, affidavits, etc. as estimate of the unauthorized population residing in reduce the reluctance of aliens who may the United States in January 2010 was revised from wish to obtain an immigrant visa to required for individual applications; a previous OIS estimate of 10.8 million. The revised become an LPR but are deterred by the cost are variable. 2010 estimate of 11.6 million is derived from the The costs listed above are not new to lengthy separation from family members 2010 American Community Survey which uses this rule; they are the current costs faced population estimates based on the 2010 Census, whereas the previously released 2010 estimate was 22 The provisional unlawful presence waiver by aliens who are inadmissible for derived from the 2000 Census. The OIS estimate of process will only be available to alien immediate the unauthorized population residing in the United relatives of U.S. citizens, not to alien relatives of 24 Fees quoted are as of June 2012. Source for States in January 2011 was 11.5 million, a decrease lawful permanent residents. DOS fees: http://travel.state.gov/visa/temp/types/ of 0.87% when compared to the 2010 estimate of 23 In the Pew Hispanic Trust report, Unauthorized types_1263.html#perm. Source for USCIS fees: 11.6 million. Immigrants: Length of Residency, Patterns of http://www.uscis.gov/portal/site/uscis/ 21 Pew Hispanic Trust, Unauthorized Immigrants: Parenthood, ‘‘families’’ are defined as adults age 18 menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/ Length of Residency, Patterns of Parenthood 6 (Dec. and older who live with their minor children (i.e., ?vgnextoid=b1ae408b1c4b3210VgnVCM100000b9 2011), available at http://www.pewhispanic.org/ younger than 18) and unmarried, dependent 2ca60aRCRD&vgnextchannel=b1ae408b files/2011/12/Unauthorized-Characteristics.pdf. children younger than 25. 1c4b3210VgnVCM100000b92ca60aRCRD.

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unlawful presence and must undergo application fees.25 The requirement to those aliens who have taken the steps to consular processing for immediate submit biometrics to DHS in order to obtain an immigrant visa to become relative immigrant visas. apply for a provisional unlawful LPRs. The data are silent, however, on Under the provisional unlawful presence waiver, with the associated that population of aliens who have not presence waiver process, aliens must fee, time, and travel costs, would be a initiated action to become LPRs due to submit biometrics after filing the small portion of the total costs of the current uncertainties and risks. immigrant visa application process. provisional unlawful presence waiver Therefore, we recognize that the As there are no annual limitations on estimates provided may understate what application, along with the the number of immediate relative visas corresponding fee (currently $85.00). may actually occur when this rule that can be issued, the increase in the becomes effective. Submission of biometrics to DHS is annual demand for waivers would be separate from the DOS immigrant visa determined by the size of the affected The current level of demand, shown security surcharge that recovers costs to population and the increased propensity in Table 2, is a result of the existing DOS associated with providing to apply. As previously mentioned, a constraints described previously: the enhanced border security. Since potential increase in demand might be possibility of lengthy separation of publication of the proposed provisional limited, as is current demand, by the immediate relatives and their U.S. unlawful presence waiver rule, DOS costs previously noted. citizen relatives; uncertainty of the published an updated fee schedule for With the absence of an estimate of the ultimate success of obtaining an consular services which did the affected population, we have calculated approved inadmissibility waiver; and following as respects this rule: (1) an estimate for the increase in demand the financial constraints (costs). Because Reduced the immediate relative visa fee based on historical records and of the variability in timing between from $330 to $230; (2) increased the assumptions on the range of demand. when immigrant visa petitions and immigrant visa security surcharge fee Forecasts of demand based on historical waiver applications are submitted and from $74 to $75; and (3) discontinued volumes of immediate relatives who are adjudicated and the time when an charging a separate fee for the seeking waivers for unlawful presence immigrant visa is issued, comparisons immigrant visa surcharge and instead are limited, at best, due to the lack of between the totals within a single year embedded the fee in the immigrant visa data. Historical estimates show only are not meaningful.

TABLE 2—HISTORICAL IMMIGRATION DATA—FISCAL YEARS 2001 THROUGH 2010

Petitions for immediate Immediate Ineligibility Ineligibility Fiscal year relative 27 28 alien relative, visas issued finding overcome form I–130 26

2001 ...... 29 592,027 172,087 5,384 6,157 2002 ...... 321,577 178,142 2,555 3,534 2003 ...... 357,081 154,760 3,301 1,764 2004 ...... 330,514 151,724 4,836 2,031 2005 ...... 290,777 180,432 7,140 2,148 2006 ...... 309,268 224,187 13,710 3,264 2007 ...... 344,950 219,323 15,312 7,091 2008 ...... 412,297 238,848 31,069 16,922 2009 ...... 455,864 227,517 24,886 12,584 2010 ...... 471,791 215,947 22,093 18,826 10 year average ...... 388,615 196,297 13,029 7,432 Ineligibility Findings overcome (10 year average) ...... n/a n/a n/a 57.0% Note: Sums may not total due to rounding. Sources: Petitions for Alien Relative, Form I–130, query of USCIS Performance Analysis System by USCIS’ Office of Performance and Quality, Data Analysis and Reporting Branch. Immediate relative visas issued are from individual annual Report(s) of the Visa Office, Department of State Visa Statistics, accessible at http://travel.state.gov/visa/statistics/statistics_1476.html. Ineligibility data are also from the individual annual report(s) of the Visa Office, Department of State Visa Statistics and appears in Table XX of each annual report.

25 See 77 FR 18907. DHS has revised the cost battered spouses and children covered under the filing volumes. Note: The current filing fee for Form estimates in this final rule to reflect the updated Violence Against Women Act (VAWA) are able to I–360 is $405 for a widow(er) of a U.S. citizen. DOS fee schedule. seek adjustment of status in the United States 27 Both the Ineligibility Finding and Ineligibility 26 Numbers in this column differ from the regardless of whether they have been inspected and Overcome columns refer only to ineligibility in proposed rule (77 FR 19915) as the proposed rule admitted or paroled into the United States, see INA which the grounds of inadmissibility were the 3- inadvertently used data for preference aliens. We’ve section 245(a). Moreover, self-petitioning battered year or the 10-year unlawful presence bar. This corrected the table to account for immediate relative spouses and children typically are exempt from figure is not limited to immigrant petitioners who petitions filed using Form I–130. We note the ten accruing unlawful presence for purposes of INA are immediate relatives of U.S. citizens; it also year average here of 388,615 differs by less than two section 212(a)(9)(B)(i). See INA section includes relatives of LPRs. Ineligibility findings percent from the ten year average of 395,919 used 212(a)(9)(B)(iii)(IV). While beneficiaries of were low between 2001 and 2005/2006 because in the proposed rule. We recognize that immediate many individuals were not seeking immigrant visas relative petitions also can be filed by certain aliens immediate relative petitions for a widow(er) of a using the Petition for Amerasian, Widow(er), or U.S. citizen may avail themselves of the provisional through the consular process overseas; instead, they Special Immigrant, Form I–360. Immediate relative unlawful presence waiver, in the period 2001–2010, adjusted to lawful permanent resident status petitions filed for the Amerasian classification are the ten-year average for these petitions was 594. For stateside under INA section 245(i). filed for aliens that are already outside the United purposes of clarity in the assumptions and the 28 Id. Ineligibility Findings/Ineligibility Overcome States so we do not believe these aliens would future calculations of impact, we have decided not includes alien relatives who are not affected by the benefit from the provisional unlawful presence to include this population in the immediate relative rule. Comparisons between the totals of Ineligibility waiver requirements. Additionally, self-petitioning petition volumes given the relatively negligible Findings/Ineligibility Overcome within a single Continued

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As is evident, each of the data sets in estimated future filings. The current immediate relatives who are unlawfully Table 2 demonstrates a wide variability. OPQ estimate for future waivers of present to initiate actions to obtain an The estimate of future demand under inadmissibility is approximately 24,000 immigrant visa to become LPRs when the new process would be determined per year. Currently, 80 percent (or they otherwise would be reluctant to by the number of ineligibility findings. 19,200) of all waivers of inadmissibility under the current process. As The data for Ineligibility Findings and are filed on the basis of inadmissibility confidence in the new process 30 Ineligibility Overcome in Table 2 refer due to the unlawful presence bars. increases, we would expect demand to only to ineligibility where the grounds This estimate is further confirmed when trend upward. DHS estimates were of inadmissibility were the 3-year or the examining the most recent 5-year period formulated based on general between FY 2006–FY 2010 where the 10-year unlawful presence bar. This assumptions of the level of constraints average unlawful presence ineligibility data, however, also includes alien on demand removed by the rule. DHS finding is approximately 21,400. In light relatives of LPRs (or preference aliens) does not know of any available data that of the recent upward trend of immediate would enable a more precise calculation who are not affected by this rule. DHS relative visas issued and ineligibility has provided the data in Table 2 to of the increases in filing propensities or findings presented in Table 2, OPQ’s an increase in the number of provide historical context noting that estimate of 19,200 applications for inadmissibility findings or the the last three years of ineligibility waivers of unlawful presence represents percentage of inadmissibility findings findings are well above the 10-year as reasonable of an approximation as where the inadmissibility bar is historical average. For this reason, DHS possible for future demand based on overcome. used the estimate for the future filings available data of the current waiver for waivers of inadmissibility made by process. Table 3 indicates the estimate of the USCIS Office of Performance and DHS anticipates that the changes to demand under the current process. This Quality (OPQ), Data Analysis and create a new provisional unlawful is the baseline demand expected in the Reporting Branch, as the basis for the presence waiver process will encourage absence of the rule.

TABLE 3—BASELINE ESTIMATES OF GROWTH IN PETITIONS FOR ALIEN RELATIVES AND INELIGIBILITY FINDINGS BASED ON UNLAWFUL PRESENCE UNDER THE CURRENT PROCESS

Petitions for alien Ineligibility Fiscal year immediate relative, finding 32 Form I–130 31

Year 1 ...... 402,217 19,709 Year 2 ...... 416,294 20,398 Year 3 ...... 430,864 21,112 Year 4 ...... 445,945 21,851 Year 5 ...... 461,553 22,616 Year 6 ...... 477,707 23,408 Year 7 ...... 494,427 24,227 Year 8 ...... 511,732 25,075 Year 9 ...... 529,642 25,952 Year 10 ...... 548,180 26,861

10 Year Totals ...... 4,718,560 231,209 Note: Sums may not total due to rounding.

Based on the data available on on unlawful presence, the alien would reports by the DHS OIS.33 This is an requests for waivers under the current apply for a waiver. Thus, Table 3 imperfect calculation, as the process, Table 3 forecasts the number of represents the baseline totals we expect undocumented population has declined findings of inadmissibility due to in the absence of the provisional since its peak in 2007,34 but because of accrual of unlawful presence. The unlawful presence waiver process. the data association problems noted results presented in Table 3 are meant In these calculations, the petitions for previously, DHS used the 10-year (long to show forecasts for future demand for an alien relative made by U.S. citizens term) compound average growth rate. waivers due to unlawful presence bars are expected to increase annually by the The ineligibility findings in Table 3 under the current process. DHS assumes 3.5 percent compound annual growth are calculated using the estimate of that in every case where a consular rate for the undocumented population 19,200 average annual waivers filed on officer determines inadmissibility based for the previous 10 years based on the basis of unlawful presence, which

year are not meaningful because of the variability 31 The first year estimate for the baseline demand 32 Ineligibility Findings are calculated at the in timing between when an ineligibility finding is of I–130 petitions is the 10 year average of 388,615 USCIS estimate of 0.049 per alien immediate made and when (and if) it is overcome. multiplied by the 3.5 percent compound annual relative petition. 29 The number of Petitions for Alien Relative, growth rate for the undocumented population for 33 DHS Office of Immigration Statistics, Estimates Form I–130, filed in 2001 is high because many the previous 10 years reported in the DHS Office of the Unauthorized Immigrant Population Residing filed petitions in anticipation of the INA section of Immigration Statistics, Estimates of the 245(i) sunset date, which occurred on April 30, in the United States: January 2011. The 3.5 percent 2001. Unauthorized Immigrant Population Residing in the (rounded) compound annual growth rate is 30 The 80 percent estimate was calculated by United States: January 2011. Subsequent years are calculated from the estimated populations of USCIS based on data from all Forms I–601 increased at the same 3.5 percent growth rate. As unauthorized immigrants living in the United States completed by USCIS abroad from August 2010 to a comparison, the U.S. population as a whole rose in 2000 (8.5 million) and in 2010 (11.6 million). October 2011 and comparing those that listed only at a compound annual growth rate of 0.930 percent 34 Id. unlawful presence as an inadmissibility ground. over the same period.

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equates to 0.049 ineligibility findings for escalation of change in this variable. assumption that demand is currently every alien relative petition based on Thus, this estimate of future petitions constrained by 25 percent would mean the 10-year average. Again, these for alien relatives and ineligibility that there would be a 25 percent calculations are imperfect since findings is based on a range of increase from the baseline in the ineligibility findings are based on assumptions concerning the current number of Form I–601A applications for immigrant visas granted for the alien constraint on demand. As a result, Table each year under the new provisional relative population (both immediate 4 provides a scenario analysis utilizing unlawful presence waiver process. The relative and family preference). estimates of various amounts of findings of this range analysis are DHS does not have data available that constraint on demand. For example, an presented in Table 4. would permit an estimation of the

TABLE 4—ESTIMATES OF INADMISSIBILITY FINDINGS REQUIRING AN UNLAWFUL PRESENCE WAIVER, FORM I–601A ASSOCIATED WITH THE INCREASED DEMAND OF THE RULE

Expected demand for Form I–601A with current Year constrained demand of 25 percent 50 percent 75 percent 90 percent

Year 1 ...... 24,636 29,563 34,490 37,446 Year 2 ...... 25,498 30,598 35,697 38,757 Year 3 ...... 26,390 31,669 36,947 40,113 Year 4 ...... 27,314 32,777 38,240 41,517 Year 5 ...... 28,270 33,924 39,578 42,971 Year 6 ...... 29,260 35,111 40,963 44,475 Year 7 ...... 30,284 36,340 42,397 46,031 Year 8 ...... 31,344 37,612 43,881 47,642 Year 9 ...... 32,441 38,929 45,417 49,310 Year 10 ...... 33,576 40,291 47,006 51,036

10-Year Totals ...... 289,012 346,814 404,617 439,298 Note: Numbers may not total due to rounding.

In response to comments on the 212(a)(6)(A)(i).35 DHS has no way of Year 1 to account for estimates of proposed rule, DHS has made the knowing precisely how many of the additional Form I–601A filings from careful determination to expand 70,276 previously administratively aliens whose removal proceedings have participation in the provisional closed cases would be immediate been be administratively closed are: unlawful presence waiver process to relatives of U.S. citizens and otherwise 17,569 (25 percent of 70,276 cases); immediate relative aliens in removal eligible for the provisional unlawful 35,138 (50 percent); 52,707 (75 percent); proceedings whose cases have been or presence waiver. In an effort to be and 63,249 (90 percent). will be administratively closed and have balanced in our estimate, it would be Similarly, DHS estimated increases to the yearly volume projection in order to not been recalendared at the time of incorrect to assume that every removal account for those aliens with cases that filing the Form I–601A. Aliens who are proceeding case that was administratively closed in the past will will be administratively closed and in removal proceedings whose cases therefore eligible to apply for the have been or will be administratively also meet the requirements under the provisional unlawful presence waiver provisional unlawful presence waiver, closed are likely comprised primarily of process. Therefore, we will provide a provided they meet the additional aliens who would need to seek range analysis to estimate the requirements. DHS examined EOIR immigration relief via DOS consular proportion that would be eligible to historical case resolution statistics over processing. Thus, we believe that such participate over a similar range of the five-year period FY 2007–FY 2011 to individuals are also already accounted assumptions as used in calculating determine an appropriate average for in the volume estimates provided induced demand. In this instance, number of cases that are above which were based on historical however, we will assume that removal administratively closed from which to filings of Form I–601 to waive the proceeding cases that are eligible to base this yearly estimate on. Those unlawful presence ground. However, to participate would range from 25–90 findings are presented in Table 5. not understate the volume, we percent, where 25 percent means that 25 examined historical case resolution percent of the administratively closed TABLE 5—NUMBER OF ADMINISTRA- statistics of immigration proceedings cases also meet the remaining TIVELY CLOSED CASES—FISCAL provided by EOIR. Historical statistics provisional unlawful presence waiver YEARS 2007 THROUGH 2011 36 are silent on the volume of cases that requirements. Since cases that were have been administratively closed and administratively closed in the past Fiscal year Number represent a static statistic, we only later recalendared. 2007 ...... 7,966 Based on statistics compiled by EOIR, reflect this potential influx in one year 2008 ...... 8,409 66,365 cases at the immigration court of our volume projections. Thus, the 2009 ...... 7,885 addition made to the volume estimate in level and 3,911 cases at the BIA (for a total of 70,276 cases) were 36 Source: Executive Office for Immigration 35 Source: EOIR, Office of Planning, Analysis, and Review Office of Planning, Analysis, and administratively closed since 1992 Technology; statistics include cases completed from Technology FY 2011 Statistical Year Book February where the sole charge is INA January 1, 1992–December 5, 2012. Data compiled 2012, available at: http://www.justice.gov/eoir/ on December 5, 2012. statspub/fy11syb.pdf.

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TABLE 5—NUMBER OF ADMINISTRA- EOIR’s statistics of administratively on participation rates, DHS has made TIVELY CLOSED CASES—FISCAL closed cases, DHS determined that 35% the following yearly additions to the YEARS 2007 THROUGH 2011 36— of all administratively closed cases were volume estimate of additional Form I– Continued those where the sole charge is unlawful 601A filings to account for those aliens presence.37 Assuming this proportion whose removal proceedings have been Fiscal year Number will continue to hold, we estimate that or will be administratively closed: 692 EOIR would administratively close (25 percent of 5-year average 2,768); 2010 ...... 8,939 2,768 cases per year where the sole 1,384 (50 percent); 2,076 (75 percent); 2011 ...... 6,337 charge is unlawful presence.38 Again, and 2,492 (90 percent). The final 5-yr Average ...... 7,907 DHS has no way of knowing precisely estimate for future filings of the how many of the 2,768 estimated provisional unlawful presence waiver In examining the data over the five- unlawful presence administratively considers both induced demand relative year span (presented in Table 5), there closed cases will be aliens who are to the current process and the is no obvious upward or downward immediate relatives of U.S. citizens and participation rate of aliens in removal trend, so for the purpose of simplifying, otherwise eligible for the provisional proceedings whose cases have been or DHS assumes no growth in this statistic. unlawful presence waiver process. will be administratively closed. This Over the 20-year period of analysis of Applying the same range analysis based final estimate is presented in Table 6.

TABLE 6—FINAL ESTIMATES OF INADMISSIBILITY FINDINGS REQUIRING AN UNLAWFUL PRESENCE WAIVER, FORM I–601A [Table 4 plus an adjustment for aliens in removal proceedings whose cases have been or will be administratively closed and have not been recalendared]

Expected demand for Form I–601A with current Year constrained demand or participation rate of 25 percent 50 percent 75 percent 90 percent

Year 1 ...... 42,897 66,085 89,274 103,188 Year 2 ...... 26,191 31,982 37,774 41,249 Year 3 ...... 27,083 33,053 39,023 42,606 Year 4 ...... 28,007 34,161 40,316 44,010 Year 5 ...... 28,963 35,309 41,655 45,463 Year 6 ...... 29,952 36,496 43,040 46,967 Year 7 ...... 30,976 37,725 44,474 48,524 Year 8 ...... 32,036 38,997 45,957 50,135 Year 9 ...... 33,133 40,313 47,493 51,802 Year 10 ...... 34,269 41,676 49,083 53,528

10-Year Totals ...... 313,501 395,793 478,084 527,467 Note: Numbers may not total due to rounding.

Table 7 is the expected marginal presence waiver process. These when the rule becomes effective in increase in inadmissibility waiver initial estimates are obtained by subtracting Table 6. applications due to the final rule the baseline estimates in Table 3 implementing the provisional unlawful (without the rule) from the estimates

TABLE 7—FINAL ESTIMATES OF THE ADDITIONAL INELIGIBILITY FINDINGS REQUIRING AN INADMISSIBILITY WAIVER UNDER THE RULE (INDUCED DEMAND) 39 [Table 6 minus Table 3]

Additional ineligibility findings requiring an inadmissibility waiver with current constrained demand Year or participation rate of 25 percent 50 percent 75 percent 90 percent

Year 1 ...... 23,189 46,377 69,565 83,479 Year 2 ...... 5,792 11,584 17,375 20,851 Year 3 ...... 5,971 11,941 17,911 21,494 Year 4 ...... 6,155 12,310 18,465 22,159 Year 5 ...... 6,347 12,693 19,039 22,847 Year 6 ...... 6,544 13,088 19,632 23,559

37 Statistic calculated by DHS based on EOIR (rounded)] Similarly, there were a total of 11,279 39 The increased ineligibility findings in Table 6 statistics on administratively closed cases from aliens whose cases have been administratively are the difference in ineligibility findings from the January 1, 1992–December 5, 2012. According to closed at the BIA. Of those, a total of 3,911 cases different assumptions of the level of constrained the EOIR report, there were a total of 189,566 aliens were administratively closed at the BIA where the demand or participation rate (as respects those in whose cases have been administratively closed at sole charge is INA 212(a)(06)(A)(i). [Calculation: removal proceedings whose cases have been immigration court. Of those, a total of 66,365 cases 3,911/11,279 = 0.3468 or 35% (rounded)]. administratively closed) in Table 5 and the baseline were administratively closed at the immigration 38 Calculation: 35% of the 5-year average of court where the sole charge is INA 212(a)(06)(A)(i). administratively closed cases (7,907) = 2,768 ineligibility findings shown in Table 2. [Calculation: 66,365/189,566 = 0.3501 or 35% (rounded).

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TABLE 7—FINAL ESTIMATES OF THE ADDITIONAL INELIGIBILITY FINDINGS REQUIRING AN INADMISSIBILITY WAIVER UNDER THE RULE (INDUCED DEMAND) 39—Continued [Table 6 minus Table 3]

Additional ineligibility findings requiring an inadmissibility waiver with current constrained demand Year or participation rate of 25 percent 50 percent 75 percent 90 percent

Year 7 ...... 6,749 13,498 20,247 24,297 Year 8 ...... 6,961 13,922 20,883 25,060 Year 9 ...... 7,181 14,361 21,541 25,850 Year 10 ...... 7,408 14,815 22,222 26,667

10 Year Totals ...... 82,292 164,583 246,875 296,258 Note: Numbers may not total due to rounding.

Lastly, in response to public Internal USCIS review of I–601 that the alien will file an additional I– comments on the proposed rule, DHS historical application data indicated 601A. We believe that showing the has made the decision to not reject that withdrawals of Form I–601s were maximum volume projections under provisional unlawful presence waiver not a significant occurrence. At this those assumptions will sufficiently applications from aliens who previously time, DHS is unable to project a trend account for those cases that are submitted a Form I–601A application associated with the frequency of cases withdrawn. The volume projection of I– that either was denied or withdrawn. that are denied or withdrawn and later 601A re-filers is shown in Table 8, and This means that an alien can file a new the alien chooses to re-file a waiver is based on a 34% denial rate for all provisional unlawful presence waiver application. In an effort to present the initial filings presented in Table 6. We application on the basis of the original maximum volume projection of I–601A have chosen to present the re-filing approved immediate relative petition. re-filers, we have made the following volume projections separately because DHS has examined USCIS I–601 assumptions: (1) The five-year denial re-filers would be able to base the re- processing data over the 5-year period, rate of 34% calculated for Form I–601s FY 2007–2011. The average denial rate will hold for Form I–601As; and (2) for filed application on the initial over that 5-year period is 34%.40 every I–601A that is denied, we assume immediate relative petition.

TABLE 8—FINAL ESTIMATES OF DENIED OR WITHDRAWN PROVISIONAL UNLAWFUL PRESENCE WAIVER APPLICATIONS WHERE AN ALIEN WOULD RE-FILE A NEW FORM I–601A [Assumes that 34% of all initial applications in Table 6 will be denied or withdrawn]

Estimate of denied or withdrawn applications requiring a re-filed Form I–601A assuming the same demand Year and participation rates of 25 percent 50 percent 75 percent 90 percent

Year 1 ...... 14,585 22,469 30,354 35,084 Year 2 ...... 8,905 10,874 12,844 14,025 Year 3 ...... 9,209 11,239 13,268 14,487 Year 4 ...... 9,523 11,615 13,708 14,964 Year 5 ...... 9,848 12,006 14,163 15,458 Year 6 ...... 10,184 12,409 14,634 15,969 Year 7 ...... 10,532 12,827 15,122 16,499 Year 8 ...... 10,893 13,259 15,626 17,046 Year 9 ...... 11,266 13,707 16,148 17,613 Year 10 ...... 11,652 14,170 16,689 18,200

10-Year Totals ...... 106,593 134,571 162,551 179,341 Note: Numbers may not total due to rounding.

5. Costs costs of the rule emanate from the otherwise would not due to existing increase in the demand created by the constraints previously described under The final rule will require provisional provisional unlawful presence waiver the current I–601 waiver process. unlawful presence waiver applicants to process. These other costs include the submit biometrics to USCIS. This is the For the biometric collection, the fees and preparation costs for forms only new cost applicants will incur immediate relative alien will incur the prepared by individuals who we believe under the provisional unlawful following costs associated with take the initiative to normalize their presence waiver process in comparison submitting biometrics with an to the current waiver process. The other immigration status where they application for the provisional unlawful

40 Source: USCIS Office of Performance and Query of CIS Consolidated Operational Repository for I–601 receipts, approval and denials for FY Quality, Data Analysis and Reporting Branch. 2007—2011; report created December 8, 2011.

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presence waiver: the required USCIS fee DHS rulemakings, we use wage rates as unlawful presence waiver applicant to and the opportunity and mileage costs a mechanism to estimate the be $64.29 for travel to and service at the of traveling to a USCIS ASC to have the opportunity or time valuation costs ASC.44 When the $85.00 biometric fee is biometric recorded. associated with the required biometric added, the total estimated additional The current USCIS fee for collecting collection. The Federal minimum wage cost per provisional unlawful presence and processing biometrics is $85.00. In is currently $7.25 per hour.41 In order to waiver over the current waiver process addition, DHS estimates the opportunity anticipate the full opportunity cost of is $149.29. All other fees charged by costs for travel to an ASC in order to providing biometrics, DHS multiplied USCIS and DOS to apply for immediate have the biometric recorded based on the minimum hourly wage rate by 1.44 relative visas remain the same under the the cost of travel (time and mileage) to account for the full cost of employee current and provisional unlawful plus the average wait time to have the benefits such as paid leave, insurance, presence waiver processes.45 biometric collected. While travel times and retirement, which equals $10.44 per and distances will vary, DHS estimates hour.42 In addition, the cost of travel The incremental costs of the biometric that the average round-trip distance to includes a mileage charge based on the requirement of the rule are computed as an ASC will be 50 miles, and that the estimated 50 mile round trip at the the $149.29 cost per provisional average time for that trip will be 2.5 General Services Administration rate of unlawful presence waiver multiplied by hours. DHS estimates that an alien will $0.555 per mile, which equals $27.75 the total number of applicants for wait an average of one hour for service for each applicant.43 provisional unlawful presence waivers and to have biometrics collected. Using an opportunity cost of time of applying after the final rule is effective. DHS recognizes that the individuals $10.44 per hour and the 3.5 hour This population is represented in Table impacted by the rule are unlawfully estimated time for travel and service 6. The incremental costs of the present and are generally not eligible to and the mileage charge of $27.75, DHS additional biometric requirement are work; however, consistent with other estimates the cost per provisional shown in Table 9.

TABLE 9—COSTS OF BIOMETRIC REQUIREMENT TO IMMEDIATE RELATIVES FILING A PROVISIONAL UNLAWFUL PRESENCE WAIVER APPLICATION [Table 6 multiplied by $149.29]

Additional inadmissibility waiver application fees with current Year constrained demand or participation rate of 25 percent 50 percent 75 percent 90 percent

Year 1 ...... $6,404,093 $9,865,830 $13,327,715 $15,404,937 Year 2 ...... 3,910,054 4,774,593 5,639,280 6,158,063 Year 3 ...... 4,043,221 4,934,482 5,825,744 6,360,650 Year 4 ...... 4,181,165 5,099,896 6,018,776 6,570,253 Year 5 ...... 4,323,886 5,271,281 6,218,675 6,787,171 Year 6 ...... 4,471,534 5,448,488 6,425,442 7,011,703 Year 7 ...... 4,624,407 5,631,965 6,639,523 7,244,148 Year 8 ...... 4,782,654 5,821,862 6,860,921 7,484,654 Year 9 ...... 4,946,426 6,018,328 7,090,230 7,733,521 Year 10 ...... 5,116,019 6,221,810 7,327,601 7,991,195

10-Year Totals Undiscounted ...... 46,803,460 59,088,534 71,373,907 78,746,295

10-Year Totals Discounted at 7.0 percent ...... 32,907,683 42,030,423 51,153,460 56,628,050

10-Year Totals Discounted at 3.0 percent ...... 39,926,220 50,653,297 61,380,675 67,818,069 Note: Numbers may not total due to rounding.

In addition to the costs of the 130) are not costs of this rule. The new this rule. We consider the fee values to biometric requirement, DHS expects fee revenue, however, is that generated be a reasonable proxy for the underlying that the rule will induce an increase in by the additional demand shown in costs of this rule. The additional fees demand for immediate relative visas, Table 7, and from transfers made by and preparation costs are shown in which will generate new fees paid to the applicants to USCIS and DOS to cover Table 10. USCIS and DOS. As the only new the cost of processing the forms. In In determining the preparation cost requirement imposed by this rule on addition to the fees, there are nominal for the forms, different labor rates were provisional unlawful presence waiver preparation costs associated with used depending on the citizenship status of the petitioner. If the form is applicants compared with the current completing the forms. We estimate the completed by the alien immediate waiver process is biometrics, fees amount of these fees and their relative (Form I–601A), the loaded collected for filing forms that are associated preparation costs to give a minimum wage of $10.44 per hour was already required (such as the Form I– more complete estimate of the impact of used. If the form is completed by a U.S.

41 U.S. Dep’t of Labor, Wage and Hour Division. per hour worked for employee compensation and 44 ($10.44 per hour × 3.5 hours) + ($0.555 per mile The minimum wage in effect as of July 24, 2009, costs as a percent of total compensation: Civilian × 50 miles) = $64.29. available at: http://www.dol.gov/dol/topic/wages/ workers, by major occupational and industry group, 45 The Application for a Provisional Waiver of minimumwage.htm. Dec. 2011, available at http://www.bls.gov/ Inadmissibility, Form I–601A, will carry the same 42 U.S. Dep’t of Labor, Bureau of Labor Statistics, news.release/archives/ecec_03142012.htm. USCIS fee as Form I–601. Economic News Release, Table 1. Employer costs 43 See 77 FR 22786.

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citizen, we used the mean hourly wage 1. Cost of Form I–130: Preparation cost 4. Cost of Immigrant Visa: Preparation for ‘‘all occupations’’ as reported by the = ($31.31 × 1.5 hours) = $46.97; cost of Form DS–230 = ($10.44 × 1.0 Bureau of Labor Statistics and then USCIS fee to cover processing costs hour) = $10.44; Processing Fees: adjusted that wage upward to account = $420.00. Total cost = $466.97 DOS fee to cover processing costs = for the costs of employee benefits, such 2. Cost of Form I–601A: Preparation cost $230; USCIS fee to cover processing as annual leave, for a fully loaded = ($10.44 × 1.5 hours) = $15.66; costs = $165. Total cost = $405.44. hourly wage rate of $31.31.46 The times USCIS fee to cover processing costs to complete the forms are based on the Based on the above, the total costs per = $585.00. Total cost = $600.66 estimated burden time reported for the application: ($466.97 + 600.66 + 275.86 individual forms. 3. Cost of Form I–864: Preparation cost + 405.44) = $1,748.93. These costs and appropriate fees paid = ($31.31 × 6.0 hours) = $187.86; to USCIS and DOS are calculated by the DOS fee to cover processing costs = formula: $88.00. Total cost = $275.86

TABLE 10—COSTS FOR PREPARING AND FILING USCIS AND DOS FORMS [Table 7 multiplied by $1,748.93]

Additional preparation costs and filing fees with current constrained Year demand or participation rate of 25 percent 50 percent 75 percent 90 percent

Year 1 ...... $40,555,938 $81,110,127 $121,664,315 $145,998,927 Year 2 ...... 10,129,803 20,259,605 30,387,659 36,466,939 Year 3 ...... 10,442,861 20,883,973 31,325,085 37,591,501 Year 4 ...... 10,764,664 21,529,328 32,293,992 38,754,540 Year 5 ...... 11,100,459 22,199,168 33,297,878 39,957,804 Year 6 ...... 11,444,998 22,889,996 34,334,994 41,203,042 Year 7 ...... 11,803,529 23,607,057 35,410,586 42,493,752 Year 8 ...... 12,174,302 24,348,603 36,522,905 43,828,186 Year 9 ...... 12,559,066 25,116,384 37,673,701 45,209,841 Year 10 ...... 12,956,073 25,910,398 38,864,722 46,638,716

10 Year Totals Undiscounted ...... 143,931,692 287,854,640 431,775,838 518,143,249

10 Year Totals Discounted at 7.0 percent ...... 106,881,772 213,757,395 320,631,489 384,766,730

10 Year Totals Discounted at 3.0 percent ...... 125,678,197 251,348,945 377,018,045 452,432,274 Note: Sums may not total due to rounding.

The totals in Table 10 are calculated extent that this rule allows immediate denied or withdrawn. If an alien by multiplying the induced demand relatives to reduce the time spent in chooses to file a new provisional shown in Table 7 by the $1,748.93 their home country, we expect a unlawful presence waiver application, shown above. DHS acknowledges there proportionate reduction in these costs. the alien would face the biometric costs are additional costs to the existing These cost savings represent a benefit of (including biometric fees and travel to process, such as travel from the United this rule. the ASC to submit biometrics) and the States to the immediate relative’s home In addition, the final rule has fee and preparation costs associated country where the immigrant visa is removed the limitation that allowed with Form I–601A. As previously being processed and the additional aliens to file only one Form I–601A on established, the biometric costs are expense of supporting two households the basis of an approved immediate $149.29 and the Form I–601A costs are while awaiting an immigrant visa. Such relative petition. In response to public $600.66 per applicant. The total costs costs are highly variable and depend on comment, DHS will allow an alien to associated with the estimated the circumstances of the specific file a new Form I–601A based on the petitioner. We did not estimate the same approved immediate relative population volume are presented in impacts of these variable costs. To the petition if the initial Form I–601A is Table 11.

TABLE 11—COSTS ASSOCIATED WITH APPLICANTS THAT RE-FILE FORM I–601A AFTER THE INITIAL FORM I–601A IS DENIED OR WITHDRAWN [Table 8 multiplied by $749.95]

Additional costs for applications that are denied and re-filed over the range Year analysis of 25 percent 50 percent 75 percent 90 percent

Year 1...... $10,938,021 $16,850,627 $22,763,982 $26,311,246 Year 2 ...... 6,678,305 8,154,956 9,632,358 10,518,049 Year 3 ...... 6,906,290 8,428,688 9,950,337 10,864,526

46 The $31.31 rate is calculated by multiplying the 2011 (available at http://www.bls.gov/oes/2011/ may/oes_nat.htm) by the 1.44 fully loaded $21.74 average hourly wage for all occupations May multiplier.

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TABLE 11—COSTS ASSOCIATED WITH APPLICANTS THAT RE-FILE FORM I–601A AFTER THE INITIAL FORM I–601A IS DENIED OR WITHDRAWN—Continued [Table 8 multiplied by $749.95]

Additional costs for applications that are denied and re-filed over the range Year analysis of 25 percent 50 percent 75 percent 90 percent

Year 4 ...... 7,141,774 8,710,669 10,280,315 11,222,252 Year 5 ...... 7,385,508 9,003,900 10,621,542 11,592,727 Year 6 ...... 7,637,491 9,306,130 10,974,768 11,975,952 Year 7 ...... 7,898,473 9,619,609 11,340,744 12,373,425 Year 8 ...... 8,169,205 9,943,587 11,718,719 12,783,648 Year 9 ...... 8,448,937 10,279,565 12,110,193 13,208,869 Year 10 ...... 8,738,417 10,626,792 12,515,916 13,649,090

10-Year Totals Undiscounted ...... 79,942,420 100,924,521 121,908,872 134,499,783

10-Year Totals Discounted at 7.0 percent ...... 56,207,656 71,788,866 87,371,675 96,721,450

10-Year Totals Discounted at 3.0 percent ...... 68,195,707 86,516,943 104,840,098 115,834,193 Note: Sums may not total due to rounding.

The total cost to applicants is shown in Table 12 as the sum of Table 9, Table 10, and Table 11.

TABLE 12—TOTAL COSTS TO APPLICANTS OF THE FINAL RULE [Sum of Tables 9–11]

Estimated total cost at current constrained demand or participation rate of Year 25 percent 50 percent 75 percent 90 percent

Year 1 ...... $57,898,052 $107,826,583 $157,756,013 $187,715,110 Year 2 ...... 20,718,162 33,189,154 45,659,297 53,143,051 Year 3 ...... 21,392,372 34,247,144 47,101,166 54,816,677 Year 4 ...... 22,087,603 35,339,893 48,593,083 56,547,045 Year 5 ...... 22,809,853 36,474,349 50,138,095 58,337,702 Year 6 ...... 23,554,023 37,644,613 51,735,204 60,190,697 Year 7 ...... 24,326,409 38,858,631 53,390,853 62,111,325 Year 8 ...... 25,126,162 40,114,053 55,102,544 64,096,488 Year 9 ...... 25,954,429 41,414,276 56,874,124 66,152,230 Year 10 ...... 26,810,510 42,758,999 58,708,239 68,279,001

10 Year Totals Undiscounted ...... 270,677,572 447,867,695 625,058,617 731,389,326

10 Year Totals Discounted at 7.0 percent ...... 195,997,110 327,576,683 459,156,625 538,116,229

10 Year Totals Discounted at 3.0 percent ...... 233,800,123 388,519,186 543,238,818 636,084,535 Note: Sums may not total due to rounding.

Costs to the Federal Government process workflow and resource for U.S. citizens and their immediate include the possible costs of additional requirements as a normal part of its relatives. In addition to the obvious adjudication personnel associated with biennial fee review. The biennial fee humanitarian and emotional benefits increased volume and the associated review determines if fees for derived from family reunification, we equipment (computers, telephones) and immigration benefits are sufficient in also anticipate significant financial occupancy costs (if additional space is light of resource needs and filing trends. benefits accruing to the U.S. citizen due required). However, we expect these Consequently, we do not believe that to the shortened period he or she would costs to be offset by the additional fee this rule will impose additional costs on have to financially support the alien revenue collected for form processing. the Federal Government. relative abroad. DHS is currently unable As previously explained, DHS has 6. Benefits to estimate the average duration of time adopted the current cost for an immediate relative must spend adjudicating an Application for Waiver The benefits of the rule are the result abroad while awaiting waiver of Ground of Inadmissibility, Form I– of streamlining the immigrant visa adjudication under the current process, 601($585), as the initial filing fee that waiver process. The primary benefits of and so cannot predict how the time will be required for the Form I–601A. the provisional unlawful presence spent apart would be reduced under the DHS will consider the impact of the waiver process changes are qualitative provisional unlawful presence waiver provisional unlawful presence waiver and result from reduced separation time process. As a result of streamlining the

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unlawful presence waiver process, there approval of this newly created originally proposed form I–601A and its also could be workflow efficiencies instrument from OMB. instructions to include the changes as realized by both USCIS and DOS. The DHS submitted Form I–601A to OMB discussed in Part IV (Public Comments new process will enable USCIS to for review. OMB temporarily assigned on the Proposed Rule) and the appendix process and adjudicate the provisional an OMB Control Number, 1615–0123, to of the supporting statement. The revised unlawful presence waivers the form and also filed comments in materials can be viewed at domestically. As a result, USCIS may be accordance with 5 CFR 1320.11(c). DHS www.regulations.gov. able to move a large part of its workload has considered the comments received to Service Centers or field offices with in response to the publication of the G. Regulatory Flexibility Act proposed rule and the comments resources that are less expensive than The Regulatory Flexibility Act of 1980 submitted by OMB concerning the overseas staffing resources and that are (RFA), 5 U.S.C. 601–612, as amended by flexible enough to accommodate filing creation of the Form I–601A. DHS’ response to the comments appears in the Small Business Regulatory surges. In addition, the new provisional Enforcement Fairness Act of 1996, unlawful presence waiver process will this final rule and in an appendix to the supporting statement that accompanies Public Law 104–121 (March 29, 1996), allow DOS to review these cases once, requires Federal agencies to consider as opposed to the current unlawful this rule. USCIS has submitted the supporting statement to OMB as part of the potential impact of regulations on presence process where these cases are small businesses, small governmental reviewed twice, at a minimum. DHS its request for approval of this new information collection instrument. jurisdictions, and small organizations anticipates that the new process will during the development of their rules. make the immigrant visa process more On April 2, 2012, DHS published a The term ‘‘small entities’’ comprises efficient. proposed rule, Provisional Unlawful Presence Waivers of Inadmissibility for small businesses, not-for-profit D. Executive Order 13132 Certain Immediate Relatives, in the organizations that are independently owned and operated and are not This final rule will not have Federal Register at 77 FR 19902. In the PRA section of that rule, DHS dominant in their fields, and substantial direct effects on the States, inadvertently indicated that USCIS governmental jurisdictions with on the relationship between the would be seeking to revise a currently populations of less than 50,000. National Government and the States, or approved information collection on the distribution of power and DHS has reviewed this regulation in instrument. DHS, however, should have responsibilities among the various accordance with the Regulatory indicated that it would be requesting the levels of government. Therefore, in Flexibility Act and certifies that this approval of a new information accordance with section 6 of Executive rule will not have a significant collection instrument, Application for Order 13132, it is determined that this economic impact on a substantial Provisional Unlawful Presence Waiver, rule does not have sufficient federalism number of small entities. The factual Form I–601A. This final rule corrects implications to warrant the preparation basis for this determination is that this that error. rule directly regulates individuals who of a federalism summary impact Despite the inadvertent error in the are the immediate relatives of U.S. statement. notice inserted in the PRA portion of the citizens seeking to apply for an proposed rule, DHS clearly E. Executive Order 12988 Civil Justice unlawful presence waiver of communicated to the public, in other Reform inadmissibility in order to be eligible to parts of the proposed rule, that it was obtain an immigrant visa outside the Section 3(c) of Executive Order 12988 considering the creation of a new United States. The impact is on these requires Executive agencies to review information collection instrument, Form persons as individuals, so that they are regulations in light of applicable I–601A, to be able to collect information standards in section 3(a) and section required from certain immediate not, for purposes of the Regulatory 3(b) to determine whether they are met relatives of U.S. citizens seeking a Flexibility Act, within the definition of or it is unreasonable to meet one or provisional unlawful presence waiver of small entities established by 5 U.S.C. more of them. DHS has completed the the unlawful presence inadmissibility 601(6). DHS received no public required review and determined that, to ground. USCIS received comments from comments challenging this certification. the extent permitted by law, this final the public on the proposed Form I– VII. Amendments rule meets the relevant standards of 601A. Those comments have been Executive Order 12988. addressed under part IV (Public List of Subjects F. Paperwork Reduction Act Comments on Proposed Rule). 8 CFR Part 103 Lastly, DHS has updated the Under the Paperwork Reduction Act supporting statement to reflect a change Administrative practice and of 1995 (PRA), Public Law 104–13, all in the estimate for the number of procedures, Authority delegations Departments are required to submit to respondents that USCIS projected (government agencies), Freedom of the Office of Management and Budget would submit this type of request from Information; Privacy, Reporting and (OMB), for review and approval, any 38,277 respondents to 62,348 recordkeeping requirements, Surety reporting and recordkeeping respondents. This change of the initially bonds. requirements inherent in a rule. See projected estimate is due to the final Public Law 104–13, 109 Stat. 163 (May rule’s expansion of the eligibility 8 CFR Part 212 22, 1995). This final rule requires that criterion initially proposed, which Administrative practice and an applicant requesting a provisional results in an increase of the estimated procedure, Aliens, Immigration, unlawful presence waiver complete an population of aliens that DHS expects Passports and visas, Reporting and Application for Provisional Waiver of could file Form I–601A. With the recordkeeping requirements. Unlawful Presence, Form I–601A. This increase in the total number of form is considered new information respondents, DHS has increased the Accordingly, USCIS amends chapter I collection and is covered under the total annual burden hours to 166,469 of title 8 of the Code of Federal PRA. USCIS is currently seeking hours. In addition, DHS has revised the Regulations as follows.

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PART 103—POWERS AND DUTIES; 103.7(b)(1), and in accordance with the of the waiver is not required when an AVAILABILITY OF RECORDS form instructions. Certain immigrants alien is notified of the termination of may apply for a provisional unlawful residence under section 216 of the Act, ■ 1. The authority citation for part 103 presence waiver of inadmissibility as and no appeal will lie from the decision continues to read as follows: specified in 8 CFR 212.7(e). to terminate the waiver on this basis. If Authority: 5 U.S.C. 301, 552, 552a; 8 * * * * * the alien challenges the termination in U.S.C. 1101, 1103, 1304, 1356, 1365b; 31 (3) Decision. If the waiver application removal proceedings, and the removal U.S.C. 9701; Pub. L. 107–296, 116 Stat. 2135 is denied, USCIS will provide a written proceedings end in the restoration of the (6 U.S.C. 1 et seq.); E.O. 12356, 47 FR 14874, decision and notify the applicant and alien’s status, the waiver will become 15557, 3 CFR, 1982 Comp., p.166; 8 CFR his or her attorney or accredited effective again. part 2. representative and will advise the (v) Nothing in this subsection ■ 2. Section 103.7 is amended by applicant of appeal procedures, if any, precludes USCIS from reopening and revising paragraphs (b)(1)(i)(AA) and in accordance with 8 CFR 103.3. The reconsidering a decision if the decision (c)(3)(i) to read as follows: denial of a provisional unlawful is determined to have been made in § 103.7 Fees. presence waiver is governed by 8 CFR error. * * * * * 212.7(e). * * * * * (b) * * * (4) Validity. (i) A provisional (e) Provisional Unlawful Presence (1) * * * unlawful presence waiver granted Waivers of Inadmissibility for Certain (i) * * * according to paragraph (e) of this Immediate Relatives. The provisions of (AA) Application for Waiver of section is valid subject to the terms and this paragraph (e) are applicable to Ground of Inadmissibility (Form I–601) conditions as specified in paragraph (e) certain aliens who are pursuing and Application for Provisional of this section. In any other case, consular immigrant visa processing as Unlawful Presence Waiver (I–601A). For approval of an immigrant waiver of an immediate relative of a U.S. citizen. filing an application for waiver of inadmissibility under this section (1) Jurisdiction. All applications for a grounds of inadmissibility or an applies only to the grounds of provisional unlawful presence waiver, application for a provisional unlawful inadmissibility, and the related crimes, including an application for a presence waiver: $585. events, or incidents that are specified in provisional unlawful presence waiver the application for waiver. made by an alien in removal * * * * * (c) * * * (ii) Except for K–1 and K–2 proceedings before the Executive Office (3) * * * nonimmigrants and aliens lawfully for Immigration Review, must be filed (i) Biometric Fee, except for the admitted for permanent residence on a with USCIS, with the fees prescribed in biometric fee required for provisional conditional basis, an immigrant waiver 8 CFR 103.7(b), and in accordance with unlawful presence waivers filed under 8 of inadmissibility is valid indefinitely, the form instructions. CFR 212.7(e). even if the applicant later abandons or (2) Provisional Unlawful Presence otherwise loses lawful permanent Waiver; In General. (i) USCIS may * * * * * resident status. adjudicate applications for a provisional PART 212—DOCUMENTARY (iii) For a K–1 or K–2 nonimmigrant, unlawful presence waiver of REQUIREMENTS; NONIMMIGRANTS; approval of the waiver is conditioned on inadmissibility based on section WAIVERS; ADMISSION OF CERTAIN the K–1 nonimmigrant marrying the 212(a)(9)(B)(v) of the Act filed by INADMISSIBLE ALIENS; PAROLE petitioner; if the K–1 nonimmigrant eligible aliens described in paragraph marries the K nonimmigrant petitioner, (e)(3) of this section. USCIS will only ■ 3. The authority citation for part 212 the waiver becomes valid indefinitely, approve such provisional unlawful continues to read as follows: subject to paragraph (a)(4)(iv) of this presence waiver applications in Authority: 8 U.S.C. 1101 and note, 1102, section, even if the applicant later accordance with the conditions outlined 1103, 1182 and note, 1184, 1187, 1223, 1225, abandons or otherwise loses lawful in paragraph (e) of this section. 1226, 1227, 1255, 1359; 8 U.S.C. 1185 note permanent resident status. If the K–1 Consistent with section 212(a)(9)(B)(v) (section 7209 of Pub. L. 108–458); 8 CFR part does not marry the K nonimmigrant of the Act, the decision whether to 2. Section 212.1(q) also issued under section petitioner, the K–1 and K–2 approve a provisional unlawful 702, Pub. L. 110–229, 122 Stat. 754, 854. nonimmigrants remain inadmissible for presence waiver application is purposes of any application for a benefit discretionary and does not constitute a ■ 4. Section 212.7 is amended by: ■ a. Revising paragraphs (a)(1), (a)(3), on any basis other than the proposed grant of a lawful immigration status or and (a)(4); and marriage between the K–1 and the K a period of stay authorized by the ■ b. Adding paragraph (e). nonimmigrant petitioner. Secretary. The revisions and addition read as (iv) For an alien lawfully admitted for (ii) A pending or an approved follows: permanent residence on a conditional provisional unlawful presence waiver basis under section 216 of the Act, does not authorize any interim § 212.7 Waivers of certain grounds of removal of the conditions on the alien’s immigration benefits such as inadmissibility. status renders the waiver valid employment authorization or advance (a)(1) Application. Except as provided indefinitely, even if the applicant later parole. Any application for a travel by 8 CFR 212.7(e), an applicant for an abandons or otherwise loses lawful document or request for employment immigrant visa, adjustment of status, or permanent resident status. Termination authorization that is submitted in a K or V nonimmigrant visa who is of the alien’s status as an alien lawfully connection with a provisional unlawful inadmissible under any provision of admitted for permanent residence on a presence waiver application will be section 212(a) of the Act for which a conditional basis also terminates the rejected. waiver is available under section 212 of validity of a waiver of inadmissibility (3) Eligible aliens. Except as provided the Act may apply for the related waiver based on sections 212(h) or 212(i) of the in paragraph (e)(4) of this section, an by filing the form designated by USCIS, Act that was granted to the alien. alien may be eligible to apply for and with the fee prescribed in 8 CFR Separate notification of the termination receive a provisional unlawful presence

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waiver for the grounds of final order of exclusion or deportation The alien may not appeal or file a inadmissibility under section under former 236 or 242 of the Act (pre- motion to reopen or reconsider an 212(a)(9)(B)(i)(I) or (II) of the Act if he April 1, 1997), or any other provision of abandonment denial under 8 CFR 103.5. or she meets the requirements in this law (including an in absentia removal (7) Burden of proof. The alien has the paragraph. An alien may be eligible to order under section 240(b)(5) of the burden to establish eligibility for the apply for or receive a waiver if he or Act); provisional unlawful presence waiver as she: (vii) The alien is subject to described in this paragraph of this (i) Is present in the United States at reinstatement of a prior removal order section, and under section the time of filing the application for a under section 241(a)(5) of the Act; or 212(a)(9)(B)(v) of the Act, including that provisional unlawful presence waiver, (viii) The alien has a pending the alien merits a favorable exercise of and for biometrics collection at a USCIS application with USCIS for lawful the Secretary’s discretion. ASC; permanent resident status. (8) Adjudication. USCIS will (ii) Upon departure, would be (5) Filing. (i) An application for a adjudicate the provisional unlawful inadmissible only under section provisional unlawful presence waiver of presence waiver application in 212(a)(9)(B)(i) of the Act at the time of the unlawful presence inadmissibility accordance with this paragraph of this the immigrant visa interview; bars under section 212(a)(9)(B)(i)(I) or section and section 212(a)(9)(B)(v) of the (iii) Qualifies as an immediate relative (II) of the Act, including an application Act, except the alien must show extreme under section 201(b)(2)(A)(i) of the Act; by an alien in removal proceedings that hardship to his or her U.S. citizen (iv) Is the beneficiary of an approved are administratively closed and have not spouse or parent. USCIS also may immediate relative petition; been recalendared at the time of filing require the alien and the U.S. citizen (v) Has a case pending with the the Form I–601A, must be filed in petitioner to appear for an interview Department of State based on the accordance with 8 CFR part 103 and on pursuant to 8 CFR 103.2(b)(9). If USCIS approved immediate relative petition the form designated by USCIS. The finds that the alien does not meet the and has paid the immigrant visa prescribed fee under 8 CFR 103.7(b)(1) eligibility requirements for the processing fee as evidenced by a State and supporting documentation must be provisional unlawful presence waiver as Department Visa Processing Fee submitted in accordance with the form described in paragraph (e) of this Receipt; instructions. section, or if USCIS otherwise (vi) Will depart from the United States (ii) An application for a provisional determines in its discretion that a to obtain the immediate relative unlawful presence waiver will be waiver is not warranted, USCIS will immigrant visa; and rejected and the fee and package deny the waiver application. (vii) Meets the requirements for a returned to the alien if the alien: Notwithstanding 8 CFR 103.2(b)(16), waiver provided in section (A) Fails to pay the required filing fee USCIS may deny an application for a 212(a)(9)(B)(v) of the Act, except the for the provisional unlawful presence provisional unlawful presence waiver alien must show extreme hardship to waiver application or to pay the correct without prior issuance of a request for his or her U.S. citizen spouse or parent. filing fee; evidence or notice of intent to deny. (4) Ineligible Aliens. Notwithstanding (B) Fails to sign the provisional (9) Notice of Decision. USCIS will paragraph (e)(3) of this section, an alien unlawful presence waiver application; notify the alien and the alien’s attorney is ineligible for a provisional unlawful (C) Fails to provide his or her family of record or accredited representative of presence waiver under paragraph (e) of name, domestic home address, and date the decision in accordance with 8 CFR this section if: of birth; 103.2(b)(19). USCIS also may notify the (i) USCIS has reason to believe that (D) Is under the age of 17; Department of State. Denial of an the alien may be subject to grounds of (E) Does not include evidence of an application for a provisional unlawful inadmissibility other than unlawful approved petition that classifies the presence waiver is without prejudice to presence under section 212(a)(9)(B)(i)(I) alien as an immediate relative of a U.S. the alien filing another provisional or (II) of the Act at the time of the citizen; unlawful presence waiver application immigrant visa interview with the (F) Fails to include a copy of the fee under paragraph (e) of this section, Department of State; receipt evidencing that the alien has provided the alien meets all of the (ii) The alien is under the age of 17; paid the immigrant visa processing fee requirements in this part, and the alien’s (iii) The alien does not have a case to the Department of State; or case must be pending with the pending with the Department of State, (G) Has indicated on the provisional Department of State. An alien also may based on the approved immediate unlawful presence waiver application elect to file a Form I–601, Waiver of relative petition, and has not paid the that the Department of State initially Grounds of Inadmissibility, pursuant to immigrant visa processing fee; acted to schedule the immigrant visa paragraph (a)(1) of this section after (iv) The Department of State initially interview prior to January 3, 2013, even departing the United States, appearing acted to schedule the immigrant visa if the interview was cancelled or for his or her immigrant visa interview interview prior to January 3, 2013 for rescheduled after January 3, 2013. at the U.S. Embassy or consulate abroad, the approved immediate relative (6) Biometrics. (i) All aliens who and after the Department of State petition on which the provisional apply for a provisional unlawful determines the alien’s admissibility and unlawful presence waiver is based, even presence waiver under this section will eligibility for an immigrant visa. if the interview has since been cancelled be required to provide biometrics in Accordingly, denial of a request for a or rescheduled after January 3, 2013; accordance with 8 CFR 103.16 and provisional unlawful presence waiver is (v) The alien is in removal 103.17, as specified on the form not a final agency action for purposes of proceedings, unless the removal instructions. section 10(c) of the Administrative proceedings are administratively closed (ii) Failure to appear for biometrics Procedure Act, 5 U.S.C. 704. and have not been recalendared at the capture. If an alien fails to appear for (10) Withdrawal of waiver requests. time of filing the Form I–601A; biometrics capture, the provisional An alien may withdraw his or her (vi) The alien is subject to a final unlawful presence waiver application request for a provisional unlawful order of removal issued under section will be considered abandoned and presence waiver at any time before 217, 235, 238, or 240 of the Act or a denied pursuant to 8 CFR 103.2(b)(13). USCIS makes a final decision. Once the

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case is withdrawn, USCIS will close the Department of State consular officer in presence waiver is revoked case and notify the alien and his or her light of the approved provisional automatically if: attorney or accredited representative. unlawful presence waiver. (i) The consular officer determines at The alien may file a new Form I–601A, (ii) Waives the alien’s inadmissibility the time of the immigrant visa interview in accordance with the form under section 212(a)(9)(B) of the Act that the alien is ineligible to receive a instructions and required fees. The only for purposes of the application for visa under section 212(a) of the Act alien’s case must be pending with the an immigrant visa and admission to the other than under section Department of State and the alien must United States as an immediate relative 212(a)(9)(B)(i)(I) or (II) of the Act; notify the Department of State that he or of a U.S. citizen pursuant to the (ii) The immigrant visa petition she intends to file a new Form I–601A. approved immediate relative petition approval associated with the provisional (11) Appeals and Motions To Reopen. (Form I–130 or I–360) upon which the unlawful presence waiver is at any time There is no administrative appeal from provisional unlawful presence waiver revoked, withdrawn, or rendered a denial of a request for a provisional application was based. invalid but not otherwise reinstated for unlawful presence waiver under this (iii) Does not waive any ground of humanitarian reasons or converted to a section. The alien may not file, pursuant inadmissibility other than the grounds widow or widower petition; to 8 CFR 103.5, a motion to reopen or of inadmissibility under section (iii) The immigrant visa registration is reconsider a denial of a provisional 212(a)(9)(B)(i)(I) or (II) of the Act. terminated in accordance with section unlawful presence waiver application (13) Validity. Until the provisional 203(g) of the Act, and has not been under this section. unlawful presence waiver takes full reinstated in accordance with section (12) Approval and Conditions. A effect as provided in paragraph (e)(12) of 203(g) of the Act; or provisional unlawful presence waiver this section, USCIS may reopen and (iv) The alien, at any time before or granted under this section: reconsider its decision at any time. after approval of the provisional (i) Does not take effect unless, and Once a provisional unlawful presence unlawful presence waiver or before an until, the alien who applied for and waiver takes full effect as defined in immigrant visa is issued, reenters or obtained the provisional unlawful paragraph (e)(12) of this section, the attempts to reenter the United States presence waiver: period of unlawful presence for which without being inspected and admitted (A) Departs from the United States; the provisional unlawful presence or paroled. (B) Appears for an immigrant visa waiver is granted is waived indefinitely, interview at a U.S. Embassy or in accordance with and subject to Janet Napolitano, consulate; and paragraph (a)(4) of this section. Secretary. (C) Is determined to be otherwise (14) Automatic Revocation. The [FR Doc. 2012–31268 Filed 1–2–13; 4:18 pm] eligible for an immigrant visa by a approval of a provisional unlawful BILLING CODE 9111–97–P

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Part IV

Department of Commerce

National Oceanic and Atmospheric Administration 50 CFR Part 660 Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2013–2014 Biennial Specifications and Management Measures; Final Rule

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DEPARTMENT OF COMMERCE Groundfish-Halibut/Groundfish-Fishery- ecosystems. The ACLs are based on Management/index.cfm and at the consideration of conservation National Oceanic and Atmospheric Pacific Fishery Management Council’s objectives, socio-economic concerns, Administration Web site at http://www.pcouncil.org. management uncertainty and other factors. All known sources of fishing 50 CFR Part 660 Executive Summary and research catch are counted against [Docket No. 120814338–2711–02] I. Purpose of the Regulatory Action the ACL. This final rule includes ACLs for the This final rule implements the 2013– RIN 0648–BC35 seven overfished species managed 2014 harvest specifications and under the PCGFMP. For the 2013–2014 management measures for groundfish Magnuson-Stevens Act Provisions; biennium two species, canary rockfish species taken in the U.S. exclusive Fisheries Off West Coast States; and Pacific ocean perch (POP), require Pacific Coast Groundfish Fishery; economic zone off the coasts of rebuilding plan changes. These changes 2013–2014 Biennial Specifications and Washington, Oregon, and California. are necessary because the rebuilding Management Measures The purpose of this action is to conserve analyses showed that even in the and manage Pacific Coast groundfish absence of fishing, these two species AGENCY: National Marine Fisheries fishery resources to prevent overfishing, Service (NMFS), National Oceanic and were unlikely to rebuild by the current to rebuild overfished stocks, to ensure target rebuilding year (T ) in their Atmospheric Administration (NOAA), conservation, to facilitate long-term TARGET Commerce. rebuilding plans. Because of the protection of essential fish habitats multispecies nature of the groundfish ACTION: Final rule. (EFH), and to realize the full potential fishery (the ACL of one species can of the Nation’s fishery resources. The influence the ACL and/or access to SUMMARY: This final rule establishes the need for this action is to set catch limit 2013–2014 harvest specifications and another species), the choice of canary specifications and management rockfish and POP harvest rates, and the management measures for groundfish measures for 2013–2014 that are taken in the U.S. exclusive economic resulting ACLs and TTARGETS, were consistent with existing or revised carefully considered by the Pacific zone off the coasts of Washington, overfished species target rebuilding Oregon, and California consistent with Fishery Management Council (Council). years and harvest control rules for all In its final recommendation the Council the Magnuson-Stevens Fishery stocks. These harvest specifications are Conservation and Management Act weighed many factors including set consistent with the optimum yield rebuilding progress, biology of the stock, (MSA) and the Pacific Coast Groundfish (OY) harvest management framework economic impacts, allocations, and the Fishery Management Plan (PCGFMP). described in Chapter 4 of the PCGFMP. need for new or more restrictive This final rule also revises the collection This rule is authorized by 16 U.S.C. management measures. Ultimately, the of management measures in the 1854–55 and by the PCGFMP. Council recommended maintaining the groundfish fishery regulations that are harvest rate in the existing rebuilding intended to keep the total catch of each II. Major Provisions plans for POP and canary rockfish and groundfish species or species complex This final rule contains two types of establishing revised TTARGETS. within the harvest specifications. major provisions. The first are the In order to keep mortality of the DATES: This rule is effective January 1, harvest specifications for all groundfish species managed under the PCGFMP 2013. species and species complexes within the ACLs the Council also ADDRESSES: Information relevant to this (overfishing limits (OFLs), acceptable recommended management measures. final rule, which includes a final biological catches (ABCs), and annual Generally speaking, management environmental impact statement (EIS), catch limits (ACLs)), and the second are measures are intended to rebuild the Record of Decision (ROD), a management measures designed to keep overfished species, prevent ACLs from regulatory impact review (RIR), and a fishing mortality within the ACLs. The being exceeded, and allow for the final regulatory flexibility analysis harvest specifications (OFLs, ABCs, harvest of healthy stocks. Management (FRFA) are available from William ACLs) in this rule have been developed measures include time and area Stelle, Regional Administrator, through a rigorous scientific review and restrictions, gear restrictions, trip or bag Northwest Region, NMFS, 7600 Sand decision-making process, which is limits, size limits, and other Point Way NE., Seattle, WA 98115– described in detail in the proposed rule management tools. Management 0070. Electronic copies of this final rule for this action (77 FR 67974, November measures may vary by fishing sector are also available at the NMFS 14, 2012) and not repeated here. because different fishing sectors require Northwest Region Web site: http:// In summary, the OFL is the maximum different types of management to control www.nwr.noaa.gov. sustainable yield (MSY) harvest level catch. Most of the management and is an estimate of the catch level measures the Council recommended for FOR FURTHER INFORMATION CONTACT: above which overfishing is occurring. 2013–2014 were slight variations to Sarah Williams, phone: 206–526–4646, The ABC is an annual catch existing management measures and do fax: 206–526–6736, or email: specification that is the stock or stock not represent a change from current [email protected]. complex’s OFL reduced by an amount management practices. These types of SUPPLEMENTARY INFORMATION: associated with scientific uncertainty. changes include changes to trip limits, The ACL is a harvest specification set bag limits, closed areas, etc. However, Electronic Access equal to or below the ABC. The ACLs several new management measures were This rule is accessible via the Internet are decided in a manner to achieve OY recommended by the Council and at the Office of the FEDERAL REGISTER from the fishery, which is the amount of proposed by NMFS. Those measures are Web site at https:// fish that will provide the greatest overall described in detail in the proposed rule www.federalregister.gov. Background benefit to the Nation, particularly with for this action. information and documents are respect to food production and This final rule implements the same available at the NMFS Northwest Region recreational opportunities and taking regulations that were described in the Web site at http://www.nwr.noaa.gov/ into account the protection of marine proposed rule with a few exceptions.

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All of these changes are discussed in NMFS should reconsider the open to exceed 2,920 lb per two months in detail below in Changes from the access sablefish trip limits. January–December (Periods 1–6). The Proposed Rule. Response: Trip limits for sablefish are trip limits described above include based on the harvest specifications and modifications that the Council Background area allocations for each year. These recommended at its November meeting, The Pacific Coast Groundfish fishery specifications are based on stock as discussed in Changes from the is managed under the PCGFMP. The assessment information and reflect the Proposed Rule section. PCGFMP was prepared by the Council, best available science. The changes to Comment 2: Two commenters approved on July 30, 1984, and has been harvest specifications for sablefish were requested that NMFS reconsider the amended numerous times. Regulations discussed in the proposed rule. new, lower trip limits for blackgill at 50 CFR part 660, subparts C through Specifically, the proposed rule rockfish in the open access fishery south G, implement the provisions of the described how the 2013 and 2014 of 40°10′ N. lat. Both commenters stated PCGFMP. The PCGFMP requires the coastwide OFLs and ABCs, ACLs, and that they made investments in their gear harvest specifications and management allocations for the areas north and south and fishing vessels because of little measures for groundfish to be set at least of 36° N. lat. were derived. observed fishing effort in their areas and biennially. This final rule is based on The sablefish trip limits in this final an abundance of fish. They state that the the Council’s final recommendations rule are developed to keep catch within much lower blackgill rockfish trip limits that were made at its June 2012 meeting, the new sablefish ACLs. The sablefish would not provide a viable targeting with slight modifications to reflect the ACL for the area north of 36° N. lat. is opportunity and will force fishers to Council’s inseason management decreasing from 5,347 mt in 2012 to target sablefish instead. Both recommendations made at its November 4,012 mt in 2013 and this is the primary commenters also stated that they had 2012 meeting, which are described reason for the decreased sablefish trip very little warning of the proposed below along with other minor changes limits. The sablefish ACL for the area change to blackgill rockfish trip limits. from the proposed rule. north of 36° N. lat. is allocated among Response: In June 2010, the Council The Notice of Availability for the FEIS the various sectors of the groundfish initiated the public process for making for this action was published on October fishery consistent with PCGFMP changes to fishing regulations in the 12, 2012 (77 FR 62235). The final Amendment 6 and Amendment 21; 2013–2014 biennial management cycle, preferred alternative in the FEIS is the these allocations are unchanged from beginning with the adoption of the same as the Council’s preferred previous specifications cycles. Sablefish schedule for new and updated alternative that was described in the trip limits for each sector of the groundfish stock assessments. Since proposed rule for this action. See the groundfish fishery are derived to June 2010, NMFS and the Council have preamble to the proposed rule for achieve, but not exceed, the sablefish solicited public input on the additional background information on allocations for those sectors. Conversely, development of 2013–2014 harvest the fishery and on this final rule. the sablefish ACL for the area south of specifications and management ° Comments and Responses 36 N. lat. is increasing from 1,258 mt measures, including changes to blackgill in 2012 to 1,439 mt in 2013. The rockfish trip limits. All public NMFS published a proposed rule on increase in the ACL is the primary comments were considered by the November 14, 2012 (77 FR 67974) with reason for the increased sablefish trip Council prior to their final a comment period that closed on limits for the area south of 36° N. lat. recommendations in June 2012. NMFS December 5, 2012. NMFS received six The trip limits for sablefish are and the Council also solicited public letters of comment on the proposed rule. anticipated to keep catch below the comment on the Draft Environmental Three letters of comment came from 2013 and 2014 sablefish ACLs. NMFS Impact Statement (Notice of industry requesting reconsideration of disagrees with the commenter that Availability, 77 FR 35961, June 15, trip limits that are proposed to be lower differential trip limits north and south 2012), and no comments were received in 2013–2014 than they were in 2012. of 36° N. lat. are designed to eliminate regarding the proposed changes to One commenter requested that a two- the open access fishery. Based on blackgill rockfish trip limits. month seasonal closure of the nearshore updated information from the stock In 2011, blackgill rockfish was fishery be lifted, and opened under trip assessment, the distribution of the assessed for the first time since 2005. limits during that time of year. sablefish ACLs north and south of 36° The 2011 assessment base model California Department of Fish and Game N. lat differs slightly from that in 2012, estimates that depletion in spawning (CDFG) requested that NMFS reconsider and the SSC also advised the Council output was 30 percent at the start of the regulations that would clarify that that a fuller time series of trawl survey 2011, putting the stock in the landing and offloads must be completed and catch data informing stock biomass precautionary zone (above the 25 prior to beginning a new fishing trip. in the Conception area reduced the percent minimum stock size threshold CDFG also noted a few mistakes in the scientific uncertainty, making the added but below the 40 percent management preamble of the proposed rule. One 50 percent reduction previously taken target). Compared to the 2005 commenter also requested further south of 36° N. lat. unnecessary. assessment, which estimated that consideration of a limited access Sablefish trip limits for the open access depletion had never dropped below 50 program for the open access fishery. fishery north of 36° N. lat. are 300 lb per percent, the new stock assessment NMFS also received a letter of no day, or one landing per week of up to indicates a significantly more comment from the Department of the 700 lb, not to exceed 1,400 lb per two pessimistic view. The new harvest Interior. months in January–October (Periods 1– specifications for blackgill rockfish, Comment 1: NMFS should not 5) and are 300 lb per day, or one landing including their contribution to the drastically reduce the trip limits for per week of up to 300 lb, not to exceed minor slope rockfish complex, are sablefish in the open access fishery 600 lb per two months in November– discussed in the preamble to the north of 36° N. lat. such that they December (Period 6). Sablefish trip proposed rule (77 FR 67974, 67977–80, attempt to eliminate the open access limits for the open access fishery south November 14, 2012). To keep harvest of fishery and simultaneously raise the trip of 36° N. lat., are 300 lb per day, or one blackgill rockfish within the new limits for sablefish south of 36° N. lat. landing per week of up to 1,460 lb, not species-specific harvest guidelines

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(HGs) for the area south of 40°10′ N. lat., Goal 3, Utilization in section 2.1, and changes are made in response to this of 106 mt and 110 mt in 2013 and 2014, the guidance on trip landing limits in comment. respectively, changes to fishery section 6.7.2, of the PCGFMP. Since at CDFG expressed concerns about fiscal management measures were necessary least 2002, there has been a two-month impacts and statements in the EIS that in the non-IFQ fisheries. closure in the nearshore fisheries south CDFG considered to be conflicting, but There are two primary measures used of 40°10′ N. lat. Beginning in 2002, some NMFS notes that one statement to control catch of groundfish in the commercial fishing opportunities were concerns the presence of costs while the non-IFQ fisheries: Area closures and restricted to reduce harvest of other the magnitude of the costs. The trip limits. Appendix C of the EIS for overfished rockfish species. Seasonal quoted text states this measure would the 2013–2014 harvest specifications closures were implemented in the ‘‘increase costs’’ and would result in and management measures indicates limited entry fixed gear and open access ‘‘no considerable change in impacts’’. that reductions in bi-monthly trip limits commercial nearshore fisheries during NMFS believes a small increase in costs, would provide an effective tool to the closed seasons for recreational like the one anticipated in this case, reduce harvest of blackgill rockfish fisheries in the same areas. The Council could result in no considerable change south of 40°10′ N. lat. The Council and NMFS took this action to reduce in impacts. considered a range of blackgill rockfish overall targeting of rockfish using hook CDFG also stated that it was unclear trip limits for both the limited entry and line gears, both commercial and whether the current practice of split fixed gear fishery and the open access recreational, to achieve lower mortality deliveries would still be permissible. fishery. For the open access fishery on overfished species (67 FR 1555, NMFS points out that split deliveries ° ′ south of 40 10 N. lat., available 1574, January 11, 2002). NMFS will are allowed under current federal information on average catch of forward this request to the Council for regulations, although a state may have blackgill rockfish from 2008–2010 consideration and additional analysis more restrictive state regulations. This indicated that a bi-monthly limit and encourages the commenter to follow final rule does not change that. In the between approximately 400 lb (181 kg) up with their representatives on the limited entry fixed gear and open access and 500 lb (227 kg) per two months Council and its advisory bodies; fisheries, how the landing is delivered would keep harvest of blackgill rockfish however, based on the and recorded on a state fish receiving within the open access portion of the recommendations of the Council, this ticket is addressed under state non-trawl allocation. Analyses also final rule does not eliminate the two regulation and should comply with indicated that as long as the blackgill month closure. federal requirements. rockfish trip limit was higher than 400 Regarding the need for the change in Comment 4: CDFG does not support lb per 2 months, less than 10 percent of regulations, NMFS notes that during the applying the requirement for a full open access vessels would see their development of the trawl rationalization offload of fish prior to the catch of blackgill rockfish reduced in program, a prohibition was added to commencement of a new fishing trip to order to comply with the proposed bi- make it explicit that the requirements at the limited entry fixed gear and open monthly limit (475 lb (215 kg) per 2 § 660.11 and § 660.60(h)(2) require all access fisheries. Also, CDFG stated they months). fish to be offloaded before starting a new The trip limits for blackgill rockfish had concerns about conflicting fishing trip. However, the same are anticipated to keep catch below the information in the EIS relative to the prohibition was not implemented for new 2013 and 2014 blackgill rockfish fiscal impacts of this requirement. the limited entry fixed gear and open HGs. For the limited entry fixed gear Response: Existing regulations access fisheries through that rule fishery south of 40°10′ N. lat., this final essentially require a full offload before because that rule focused on the limited rule establishes a species-specific the start of a new fishing trip; these entry trawl fisheries. Therefore, the sublimit within the minor slope rockfish regulations include the definition of prohibition is added as part of this rule limit, for blackgill rockfish of 1,375 lb landing at § 660.11, and specifications and applies to the limited entry fixed (653 kg) per two months, which is and management measures on landings gear and open access fisheries in consistent with the proposed rule. For at § 660.60(h)(2), which apply to the addition to the limited entry trawl the open access fishery south of 40°10′ limited entry fixed gear and open access fisheries (except for processing vessels N. lat., this final rule establishes a fisheries. Specifically, the regulations in the mothership and catcher/processor species-specific sub-limit within the require that once transfer of fish begins sectors). The requirements at § 660.11, minor slope rockfish limit, for blackgill at an offload, all fish onboard are § 660.60(h)(2), and now the prohibition rockfish of 475 lb (215 kg) per two counted as part of that landing and must at § 660.12(a)(11) support catch months, which is also consistent with be recorded as such. While this implies accounting and provide for enforcement the proposed rule. that all fish must be off the vessel before of harvest limits by making it clear Comment 3: The closure of the starting the next fishing trip, a which fishery information (such as California nearshore groundfish fishery prohibition would make it clearer. The vessel monitoring system data, fishery during March and April has a negative new prohibition in § 660.12 corresponds declaration data, observer data, logbook effect on groundfish fishermen because to these existing provisions, makes the data (if applicable), per trip limits, etc.) market demand for fresh fish during requirement explicit, and mirrors the applies to the fish being reported as part those months must be met by other existing prohibitions for the limited of that landing. sources. NMFS should adjust the entry trawl fisheries at Finally, NMFS specifically requested nearshore fishery trip limits to eliminate § 660.112(b)(1)(xv) and (d)(8). Therefore, comments on this issue in the proposed this two-month closure and to allow the as discussed in the EIS, the impacts of rule for this action and only CDFG nearshore fishery to operate year round. the new prohibition in § 660.12 are not submitted comments regarding the Response: Trip limits for nearshore expected to be considerable because matter. No comments were received on species are designed to keep fishing current practices already comply with this issue during the comment period on mortality within nearshore species the existing regulations. Because the the draft EIS or the final EIS. harvest specifications while providing changes to regulations in this rule Comment 5: CDFG noted several year-round fishing opportunity, if essentially correspond to existing inconsistencies between numbers in the possible, consistent with Management regulations and to current practices, no preamble of the proposed rule with

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numbers in the proposed regulations; Decrease sablefish limits in the Limited this fishery and the potential impacts on the numbers in regulation were all Entry Daily Trip Limit (DTL) fishery overall catch levels. The Council’s GMT correct but some incorrect numbers North of 36° N. lat.; (2) Modify trip made model-based landings projections published in the preamble text. limits for sablefish in the Open Access of the OA fixed gear sablefish DTL Response: NMFS acknowledges the fishery North of 36° N. lat.; and, (3) fishery north of 36° N. lat. for 2013. errors in the preamble of the proposed revise Washington State recreational These projections were based on the rule. NMFS has thoroughly reviewed groundfish fishery management most recent information available under the regulations that are implemented in measures in Marine areas 3 and 4 to be the current 2012 trip limit scenario, and this final rule and has found no errors more precautionary. projected a harvest of 88 percent (257 requiring correction from what was mt) of this fishery’s harvest guideline Limited Entry (LE) Fixed Gear Fishery proposed in the regulatory text. (291 mt in 2013) under the status quo Management Measures Comment 6: NMFS should reconsider trip limits. At the November Council the 2007 proposal for a license Sablefish Daily Trip Limit (DTL) Trip meeting, the Groundfish Advisory Sub- limitation program for the open access Limits North of 36° N. lat. panel (GAP) requested an alternative fishery. To ensure that harvest opportunities trip limit structure for the Open Access Response: At its March 2009 meeting, for this stock do not exceed the LE fixed North fishery to facilitate more viable the Council voted for a registration only gear sablefish DTL allocation north of fishing opportunities throughout the program for the open access fishery, and 36° N. lat., the Council considered season when participants are more did not choose to implement a decreases to 2013 trip limits and the active in the fishery, largely due to Federally-permitted limited access potential impacts on overall catch levels weather considerations. The approach program in the commercial open access from trip limits in the proposed rule. the Council recommended was to groundfish fishery. Deciding whether or Since publication of the proposed rule, reduce trip limits in Period 6, in order not to implement a program that limits model-based landings projections of the to increase the limits for Periods 1 participation in the open access fishery LE fixed gear sablefish DTL fishery through 5. was not discussed in the proposed rule north of 36° N. lat. were made for 2013 Therefore, the Council recommended and is not part of this final rule. by the Council’s Groundfish and NMFS is implementing trip limit Comment 7: The United States Management Team (GMT). These changes for the OA fixed gear sablefish Department of the Interior stated they ° projections were made based on the DTL fishery north of 36 N. lat. that have no comments. adjust OA fixed gear sablefish DTL Response: NMFS appreciates the most recent information available under the current 2012 trip limit scenario, and fishery limits from ‘‘300 lb per day (136 Department of the Interior submitting its predicted a harvest attainment of 129 kg), or one landing per week of up to no comment conclusion. percent to 158 percent, depending on 610 lb (277 kg), not to exceed 1,220 lb Changes From the Proposed Rule the range of possible fuel prices which (553 kg) per two months’’ for periods 1– would subsequently affect fishing effort, 6 as suggested in the proposed rule to This final rule contains some ‘‘300 lb (136 kg) per day, or one landing modifications to the proposed rule to in excess of this fishery’s harvest guideline under the status quo trip per week of up to 700 lb (318 kg), not reflect the Council’s inseason to exceed 1,400 lb (635 kg) per 2 recommendations made at its November limits. An overage by the northern LE fixed gear sablefish DTL fishery could months’’ for periods 1–5 and ‘‘300 lb 2012 meeting. This rule also includes (136 kg) per day or one landing per result in an overage of the northern changes to the deficit carryover week up to 300 lb (136 kg), not to provisions as a consequence of the sablefish ACL. Therefore, the Council recommended exceed 600 lbs (272 kg) per two geographic split of lingcod in the months’’ for period 6 in 2013. shorebased IFQ fishery. NMFS made and NMFS is implementing trip limit changes for the LE fixed gear sablefish Washington Recreational Groundfish these minor adjustments to the 2013– ° 2014 harvest specifications and DTL fishery in 2013 north of 36 N. lat. Fishery Management Measures management measures in response to that decrease LE fixed gear sablefish The Washington State Department of updated fishery information and to DTL fishery limits from those suggested Fish and Wildlife (WDFW) briefed the further refine regulations consistent in the proposed rule from ‘‘1,100 lb (499 Council at its September and November with the intent of the proposed kg) per week, not to exceed 4,200 lb meetings that the recreational regulations. (1,905 kg) per 2 months’’ to ‘‘950 lb (431 bottomfish fishery would exceed its The Council reviews the most recent kg) per week, not to exceed 2,850 lb yelloweye rockfish harvest guideline, and best available scientific information (1293 kg) per 2 months’’ for periods 1– and that the state had taken emergency at each of its meetings to determine 6. This change in trip limits is not action to close the fishery in Neah Bay whether potential changes to routine anticipated to increase projected and La Push beginning on September 4 management measures are appropriate. impacts to overfished species and is for the remainder of the year. In order These changes have the intent to anticipated to help maintain mortality to prevent the Washington recreational achieve, to the extent possible, but not levels within the northern sablefish bottomfish fishery from exceeding its exceed, ACLs of target species, while ACL. harvest guideline in 2013 and 2014, fostering the rebuilding of overfished Open Access (OA) Fixed Gear Fishery WDFW requested more precautionary stocks. At its November 3–7 meeting in Management Measures management measures for the Costa Mesa, CA, the Council, in Washington north coast area (Marine consultation with Pacific Coast Treaty Sablefish Daily Trip Limit (DTL) Trip ° Areas 3 and 4), which the Council Indian Tribes and the States of Limits North of 36 N. lat. approved for 2013 and 2014 during its Washington, Oregon, and California, To ensure harvest opportunities for consideration of inseason management recommended changes to the 2013–2014 the OA fixed gear sablefish DTL fishery, measures at its November meeting. proposed groundfish management and that its harvest guideline north of Management measures approved for measures based upon updated fishery 36° N. lat. is attained without being the north coast for 2011–2012 restrict information and subsequent inseason exceeded, the Council considered the recreational bottomfish fishery to management needs. These changes: (1) decreases to trip limits for sablefish in the area shoreward of 20 fathoms from

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June 1 to September 30, except on days program when there is an area to reduce sablefish trip limits are open to the halibut fishery. Management subdivision either within the carryover delayed, higher sablefish trip limits will measures approved for the north coast provisions at § 660.140(e)(5), or within remain in place. If those higher trip for 2013–2014 now restrict the the provisions addressing changes in limits are caught in these commercial recreational bottomfish fishery to the management areas or subdivision of a fisheries early in the year, it could cause area shoreward of 20 fathoms from May species group as specified at severe restrictions and potential 1 to September 30, except on days open § 660.140(c)(3)(vii). The Council and closures later in the year. Additionally, to the halibut fishery. On days that the NMFS will need to consider how if changes to management measures that halibut fishery is open, no bottomfish reallocations affect surplus carryover, could reduce catch of sablefish are except lingcod, Pacific cod, and QS control limits (including aggregate delayed it could increase the risk of sablefish can be retained seaward of 20 non-whiting groundfish species), vessel exceeding the lower 2013 ACL. Because fathoms. The proposed changes to the limits (including aggregate non-whiting this final rule also increases the catch recreational management measures from groundfish species), and potentially, a limits for several species for 2013, the proposed rule are specific to the different solution to deficit carryover. leaving 2012 harvest specifications in north coast (Marine Areas 3 and 4) as However, for deficit carryover an place could unnecessarily delay fishing the majority of Washington states’ immediate solution is necessary because opportunities until later in the year, yelloweye encounters occur in this area. deficit carryover of the previously potentially reducing the total catch for Restricting the bottomfish fishery to coastwide lingcod QP could occur on these species in 2013. Thus, a delay in shallower water, and starting at a more January 1, 2013. The addition of effectiveness could ultimately cause precautionary earlier date, will reduce provisions addressing deficit carryover economic harm to the fishing industry encounters with yelloweye rockfish and in this context is a logicial extension of and associated fishing communities or improve survivability of released fish. what was proposed. Accordingly NMFS result in harvest levels inconsistent with These more restrictive management is implementing changes with this final the best available scientific information. measures are anticipated to allow rule at § 660.140(e)(5)(ii) to not allow As a result of the potential harm to fish Washington to stay within their 2013– carryover of a deficit into the following stocks and fishing communities that 2014 harvest guideline of 2.9 mt. year for an IFQ species that has had a could be caused by delaying the Therefore, the Council recommended change in management areas or effectiveness of this final rule, NMFS and NMFS is implementing changes to subdivision of a species group as finds good cause to waive the 30-day the Washington recreational fisheries for specified at § 660.140(c)(3)(vii). In 2013, delay in effectiveness. 2013–2014 for Marine Areas 3 and 4, to for any vessel account with a negative NMFS also finds good cause to waive restrict the recreational bottomfish balance of coastwide lingcod QP that prior public notice and comment on the fishery to the area shoreward of 20 would have been carried over from changes to the proposed rule in fathoms from May 1 to September 30, 2012, NMFS will assume a balance of response to the Council’s inseason except on days open to the halibut zero rather than a negative balance prior recommendations for revisions to fishery, in which no bottomfish except to any 2013 QP transfers of lingcod into groundfish fishery management lingcod, Pacific cod, and sablefish can that vessel account. This change is measures. NMFS finds good cause be retained seaward of 20 fathoms. expected to impact very few, if any, under 5 U.S.C. 553(b) because notice These adjustments to recreational vessel accounts in 2013. Any biological and comment would be impracticable fishery management measures are not or socioeconomic impacts are expected and contrary to the public interest. expected to result in greater impacts to to be minimal and within the range Providing prior notice and overfished species than originally previously considered. opportunity to comment on the projected through the end of 2013 or Council’s inseason recommendations 2014. Classification would be impracticable because The Administrator, Northwest Region, managing the fishery pursuant to the Geographic Split of Lingcod in the NMFS, has determined that the 2013– best scientific information available Shorebased IFQ Program 2014 groundfish harvest specifications requires that these changes be in place Consistent with what was proposed, and management measures, which this by January 1, 2013. Because the Council NMFS is dividing lingcod management final rule implements, are consistent met in November 2012, there was not north and south of 40°10′ N. lat. with the national standards of the sufficient time after receiving the beginning in 2013. Regulations at Magnuson-Stevens Act and other Council’s recommendations to issue a § 660.140(c)(3)(vii)(A)(1) specify how to applicable laws. proposed rule and allow for public reallocate quota share (QS) for an IFQ NMFS finds good cause to waive the comment before these actions needed to species getting subdivided by area, 30-day delay in effectiveness pursuant be in effect. Affording the time for prior which would be done for QS permits to 5 U.S.C. 553(d)(3), so that this final notice and opportunity for public and their associated QS accounts rule may become effective on January 1, comment would have prevented NMFS beginning in 2013. In the proposed rule, 2013. Leaving the 2012 harvest from managing fisheries using the best NMFS proposed subdivided specifications and management available science to approach, without accumulation limits in the tables that measures in place could cause harm to exceeding, the ACLs for federally describe QS control limits at some stocks because those management managed species in accordance with the § 660.140(d)(4)(i)(C) and the quota measures are not based on the most FMP and applicable law. The Council’s pound (QP) vessel limits at current scientific information; in recommendations are modifications to § 660.140(e)(4)(i), but did not propose a addition, it could cause drastic routine management measures that methodology for subdividing management changes later in the year to adaptively respond to updated fishery accumulation limits in regulation at prevent exceeding some lower 2013 information. If the harvest specifications § 660.140(c)(3)(vii) for use in future harvest specifications once they are contained in this rule become final prior reallocations. Since the proposed rule implemented. For example, the to the Council’s recommend inseason published, NMFS has noted that the sablefish ACL and commercial trip modifications, then harvesting at the regulations also do not specify how to limits for the area north of 36° N. lat. are beginning of 2013 could occur in a address carryover in the shorebased IFQ lower in 2013 than in 2012. If changes manner inconsistent with the most

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recent scientific information, which This final rule has been determined to changes to current reporting, would be contrary to NMFS’ legal be not significant for purposes of recordkeeping, and other complicance mandate under the MSA. Executive Order 12866. requirements. In addition, delaying the A final regulatory flexibility analysis This rule regulates businesses that (FRFA) was prepared. The FRFA harvest groundfish. This rule directly implementation of the Council’s incorporates the IRFA, a summary of the affects limited entry fixed gear permit inseason recommendations to allow for significant issues raised by the public holders, trawl QS and whiting catch prior notice and public comment would comments in response to the IRFA, history endorsed permit holders (which be contrary to the public interest. NMFS’ responses to those comments, includes shorebased whiting Delaying implementation could result in and a summary of the analyses processors), tribal vessels, charterboat potential harm to both fish stocks and completed to support the action. A copy vessels, and open access vessels. QS fishing communities. For example, the of the FRFA is available from NMFS holders are directly affected because the Council’s review of the best available (see ADDRESSES) and a summary of the amount of QP they receive based on information indicated that reduced FRFA, per the requirements of 5 U.S.C. their QS are affected by the ACLs. limited entry commercial trip limits are 604(a), follows: Vessels that fish under the trawl necessary for sablefish in the area north NMFS received no comments to the rationalization program receive their QP ° of 36 N. lat. These reduced limits must RIR/IRFA. While none of the comments from the QS holders, and thus are be in place at the beginning of period 1 specifically addressed the IRFA, the first indirectly affected if they only own (January-February) to reduce the four comments discussed in the final vessel accounts rather than QS. likelihood of exceeding the sablefish rule concerned direct socio-economic Similarly, mothership processors are ACL and minimize the need for drastic implications of this rule on small indirectly affected as they receive the reductions in harvest later in the year, commercial entities. There were fish they process from limited entry which could cause significant economic requests for trip limit adjustments for permits that are endorsed with whiting harm to fishing communities that rely open access sablefish (Comment 1) and catch history assignments. According to on this fishery. The increased for blackgill rockfish (Comment 2), for the Small Business Administration opportunities earlier in the year for the changes in the nearshore California (SBA), a small commercial harvesting OA fixed gear fishery are also important groundfish season (Comment 3), and business is one that has annual receipts to fishing communities and it would be clarification that existing regulations under $4.0 million, a small charter boat contrary to the public interest to not essentially require a full offload before business is one that has annual receipts allow these fishermen access to harvest the start of a fishing trip (Comment 4). under $7.0 million, and a small limits that are based on the best Comments 1–3 reflect requests for processor is one that employs 500 scientific information available. changes that may positively affect one employees or fewer. To determine the Similarly, reducing the potential for set of small entities, but negatively number of small entities potentially yelloweye rockfish mortality to exceed affect others. Trip limits and seasons are affected by this rule, NMFS reviewed the recreational groundfish yelloweye designed to keep catch below 2013– analyses of fish ticket data and limited rockfish harvest guideline is important 2014 ACLs and reflect changes in stock entry permit data. NMFS also reviewed for rebuilding overfished stocks. A delay assessment data, current allocation the EIS associated with this rulemaking. in implementation of the Council’s formulas among the fleets, and striving The EIS includes information on recommendations would impair to achieve the goal of a year-round charterboat, tribal, and open access achievement of the PCGFMP goals and fishery. To keep within the ACLs, fleets, available cost-earnings data objectives of managing for appropriate increases in bimonthly trip limits or developed by Northwest Fisheries harvest levels while providing for increasing a season by two months in Science Center (NWFSC). NMFS also fishing and marketing opportunities. the beginning of the year would need to reviewed responses associated with the Ultimately, taking the time necessary for be balanced against decreasing trip permitting process for the trawl full notice and comment rulemaking limits later in the year or ending the rationalization program—applicants and a delay in effectiveness could cause season earlier in the year. The impacts were asked if they considered economic harm to the fishing industry of the new clarifying regulations on themselves a small business based on and associated fishing communities, in offloading (Comment 4) are not SBA definitions. This rule would addition to adversely affecting fish expected to be considerable because regulate businesses that harvest stocks. current practices already comply with groundfish. the existing regulations which were NMFS makes the following Accordingly, for the reasons stated clarified in this rule. The new conclusions based primarily on analyses above, NMFS also finds good cause to regulations in this rule do not create associated with fish ticket data and waive prior notice and comment on the new requirements but rather clarify limited entry permit data, available changes from the proposed rule. existing practices. employment data provided by NMFS prepared an FEIS for the 2013– NMFS agrees that the Council’s processors, information on the 2014 groundfish harvest specifications choice of preferred alternatives would charterboat and tribal fleets, available and management measures. The best achieve the Council’s objectives industry responses to on-going surveys Environmental Protection Agency while minimizing, to the extent on ownership, current permit published a notice of availability for the practicable, the adverse effects on information, and the EIS associated with FEIS on October 12, 2012 (77 FR harvesters, processors, fishing support this rulemaking. As part of the 622325.) A copy of the FEIS is available industries, and associated communities. permitting process for the trawl online at http://www.pcouncil.org/. In The preamble above provides a rationalization program, applicants were approving the 2013–2014 groundfish statement and need for, and objective of asked if they considered themselves a harvest specifications and management this rule. The MSA provides the small business. QS were initially measures, NMFS issued a Record of statutory basis for this rule. No allocated to 166 limited entry trawl Decision (ROD) identifying the selected duplicative, overlapping, or conflicting permit holders (permits held by catcher alternatives. A copy of the ROD is Federal rules have been identified. This processors did not receive QS, while available from NMFS (see ADDRESSES). final rule would not introduce any one limited entry trawl permit did not

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apply to receive QS) and to 10 whiting to decline by $9.174 million (¥9.8 used the 2011 Pacific halibut processors. 36 limited entry permits also percent) and accounting net revenues by specifications. Pacific halibut have mothership/catcher vessel $4.510 (¥14.7 percent). The nearshore specifications will be known in early endorsements and catch history open access fleet would see projected 2013 and early 2014.) assignments. Because many of these revenues increase by $0.539 million There are no additional projected permits were owned by the same entity, (+12.8 percent). All other shoreside reporting, record-keeping, and other these initial allocations were directed groundfish sectors would compliance requirements of this rule consolidated into 138 QS permits/ experience ex-vessel revenue decreases not already envisioned within the scope accounts. Of the 166 limited entry from no action under the Council’s of current requirements. References to permits that received QS, 25 limited preferred alternative: whiting trawl by collections-of-information made in this entry trawl permits are either owned or $0.278 million (¥1.2 percent), non- action are intended to properly cite closely associated with a ‘‘large’’ whiting trawl by $3.175 million (¥11.8 those collections in Federal regulations, shorebased processing company or with percent), limited entry fixed gear by and not to alter their effect in any way. a non-profit organization that considers $3.782 million (¥19.8 percent), non- No Federal rules have been identified itself a ‘‘large’’ organization. Nine other nearshore open access by $1.436 million that duplicate, overlap, or conflict with permit owners indicated that they were (¥18.7 percent), and Tribal groundfish this action. NMFS issued Biological ‘‘large’’ companies. Almost all of these by $1.042 million (¥8.8 percent). Ex- Opinions under the Endangered Species large companies are associated with the vessel revenues for limited entry fixed Act (ESA) on August 10, 1990, shorebased and mothership whiting gear, non-nearshore open access and November 26, 1991, August 28, 1992, fisheries. The remaining 132 limited Tribal sectors do not vary across the September 27, 1993, May 14, 1996, and entry trawl permits are likely held by action alternatives. Under the preferred December 15, 1999 pertaining to the ‘‘small’’ companies. Of the 10 alternative and alternative 1, angler trips effects of the PCGFMP fisheries on shorebased processing companies coastwide are projected to increase by Chinook salmon (Puget Sound, Snake (whiting first receivers/processors) that 1,700 (+0.3 percent) over no action, with River spring/summer, Snake River fall, received whiting QS, three are ‘‘small’’ all of the increase occurring in the upper Columbia River spring, lower entities. Mendocino and Sonoma County (Fort Columbia River, upper Willamette There are 222 fixed gear limited entry Bragg—Bodega Bay) region of California. River, Sacramento River winter, Central permits with 164 of these permits No change in angler effort is expected in Valley spring, California coastal), coho endorsed for sablefish. Currently 105 of Washington or Oregon. Alternative 1 salmon (Central California coastal, these sablefish permits are stacked onto shows the greatest increase in angler southern Oregon/northern California 42 vessels. Open access vessels are not trips under the action. coastal), chum salmon (Hood Canal federally permitted so counts based on summer, Columbia River), sockeye landings can provide an estimate of the Compared to the status quo as salmon (Snake River, Ozette Lake), and fleet. In 2011, 682 directed open access measured by the no action alternative, steelhead (upper, middle and lower vessels fished while 284 incidental open total ex-vessel revenue under the final Columbia River, Snake River Basin, access vessels fished for a total of 966 regulations is projected to decline by upper Willamette River, central vessels. Over the 2005–2010 period, about 10 percent ($9.2 million) and California coast, California Central 1,583 different directed open access accounting net revenues (vessel Valley, south/central California, vessels fished and 837 different ‘‘profits’’) by 15 percent ($4.5 million). northern California, southern incidental open access vessels fished for This is primarily due to the decline in California). These biological opinions a total of 2,420 different vessels. the sablefish ACLs, which under no have concluded that implementation of According to the EIS, over the 2008– action/status quo alternative sum to the PCGFMP is not expected to 2010 period, 447 to 470 charterboats 6,813 mt, versus 5,451 mt under the jeopardize the continued existence of participated in the groundfish fishery. proposed regulations. This is a 20 any endangered or threatened species The four tribal fleets sum to a total of percent decline in the ACL. Based on under the jurisdiction of NMFS, or 54 longline vessels, 5 whiting trawlers, sablefish prices used in the analysis, result in the destruction or adverse and 5 non-whiting trawlers, for a grand declining sablefish revenues account for modification of critical habitat. total of 64 vessels. Available about 80 percent of the projected NMFS issued a Supplemental information on average revenue per decline of $9 million. Under the Biological Opinion on March 11, 2006 vessel suggests that all the entities in proposed regulations, angler trips concluding that neither the higher these groups can be considered small. coastwide are projected to increase by observed bycatch of Chinook in the The above analysis suggests that there 1,700 (+0.3 percent) compared to no 2005 whiting fishery nor new data are approximately 1,400 small entities action. Under the final regulations, regarding salmon bycatch in the involved in the fishery. income from commercial groundfish groundfish bottom trawl fishery These regulations implement the fishing is projected to decline by $9.274 required a reconsideration of its prior Council’s preferred alternative. The key million (¥10.3 percent). Income ‘‘no jeopardy’’ conclusion. NMFS also economic effects of the Council’s impacts from recreational groundfish reaffirmed its prior determination that alternatives and the other alternatives are expected to increase by $0.136 implementation of the PCGFMP is not were described in detail in the proposed million (+0.2 percent). Combined likely to jeopardize the continued rule for this action. The economic coastwide commercial plus recreational existence of any of the affected ESUs. effects of the Council’s preferred income impacts are expected to Lower Columbia River coho (70 FR alternative were compared with the no decrease by $9.138 million (¥5.6 37160, June 28, 2005) and Oregon action alternative where the no action percent) compared to the no action Coastal coho (73 FR 7816, February 11, alternative reflects maintaining 2011– alternative. (Note that for Pacific 2008) were recently relisted as 2012 harvest specifications and whiting, the 2011 total allowable catch threatened under the ESA. The 1999 management measures into 2013–2014. (TAC) was used for analysis purposes. biological opinion concluded that the Compared with no action, under the The values of the Pacific whiting TACs bycatch of salmonids in the Pacific Council’s preferred alternative, total will be determined in April 2013 and whiting fishery were almost entirely shoreside ex-vessel revenue is projected again in 2014. Similarly, the analysis Chinook salmon, with little or no

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bycatch of coho, chum, sockeye, and considers groundfish management regulations at Tables 1 (North) and 1 steelhead. measures. The regulations at 50 CFR (South) of subpart D, Tables 2 (North) On December 7, 2012, NMFS 660.50(d)(2) further state ‘‘the Secretary and 2 (South) of subpart E, and Tables completed a biological opinion will develop Tribal allocations and 3 (North) and 3 (South) of subpart F set concluding that the groundfish fishery regulations under this paragraph in RCA seasonal boundaries. Fishing is not likely to jeopardize non-salmonid consultation with the affected Tribe(s) prohibitions associated with GCAs are marine species including listed and, insofar as possible, with Tribal in addition to those associated with EFH eulachon, green sturgeon, humpback consensus.’’ The Tribal management Conservation Areas. whales, Steller sea lions, and measures in this final rule have been * * * * * leatherback sea turtles. The opinion also developed following these procedures. Fishery harvest guideline means the concludes that the fishery is not likely List of Subjects in 50 CFR Part 660 harvest guideline or quota after to adversely modify critical habitat for subtracting from the TAC, ACL, or ACT green sturgeon and leatherback sea Fisheries, Fishing, and Indian when specified, any allocation or turtles. An analysis included in the Fisheries. projected catch for the Pacific Coast same document as the opinion Dated: December 20, 2012. treaty Indian Tribes, projected research concludes that the fishery is not likely Alan D. Risenhoover, catch, deductions for fishing mortality to adversely affect green sea turtles, in non-groundfish fisheries, and olive ridley sea turtles, loggerhead sea Director, Office of Sustainable Fisheries, performing the functions and duties of the deductions for EFPs. turtles, sei whales, North Pacific right Deputy Assistant Administrator for * * * * * whales, blue whales, fin whales, sperm Regulatory Programs, National Marine ■ whales, Southern Resident killer Fisheries Service. 3. In § 660.12, paragraphs (a)(11) whales, Guadalupe fur seals, or the through (a)(13) are redesignated as For the reasons set out in the critical habitat for Steller sea lions. (a)(12) through (a)(14) and new As Steller sea lions and humpback preamble, 50 CFR part 660 is amended paragraph (a)(11) is added to read as whales are also protected under the as follows: follows: Marine Mammal Protection Act, PART 660—FISHERIES OFF WEST § 660.12 General groundfish prohibitions. incidental take of these species from the COAST STATES groundfish fishery must be addressed * * * * * under MMPA section 101(a)(5)(E). On ■ 1. The authority citation for part 660 (a) * * * February 27, 2012, NMFS published continues to read as follows: (11) Fail to remove all fish from the notice that the incidental taking of vessel at landing (defined in § 660.11) Steller sea lions in the West Coast Authority: 16 U.S.C. 1801 et seq. and 16 and prior to beginning a new fishing U.S.C. 773 et seq. groundfish fisheries is addressed in trip, except for processing vessels in the NMFS’ December 29, 2010 Negligible Subpart C—West Coast Groundfish catcher/processor or mothership sectors Impact Determination (NID) and this Fisheries of the Pacific whiting fishery. fishery has been added to the list of * * * * * fisheries authorized to take Steller sea ■ 2. In § 660.11, revise the definitions ■ 4. In § 660.40, the introductory text lions. 77 FR 11493 (Feb. 27, 2012). for ‘‘Conservation area(s)’’ paragraph (1), and paragraphs (b), (e) and (f) are NMFS is currently developing MMPA and ‘‘Fishery harvest guideline’’ as revised, paragraph (g) is removed, and authorization for the incidental take of follows: paragraph (h) is redesignated as humpback whales in the fishery. On November 21, 2012, the U.S. Fish § 660.11 General definitions. paragraph (g) to read as follows: and Wildlife Service (FWS) issued a * * * * * § 660.40 Overfished species rebuilding biological opinion concluding that the Conservation area(s) *** plans. (1) Groundfish Conservation Area or groundfish fishery will not jeopardize For each overfished groundfish stock GCA means a geographic area defined the continued existence of the short- with an approved rebuilding plan, this by coordinates expressed in degrees tailed albatross. The (FWS) also section contains the standards to be latitude and longitude, wherein fishing concurred that the fishery is not likely used to establish annual or biennial by a particular gear type or types may to adversely affect the marbled murrelet, ACLs, specifically the target date for be prohibited. Regulations at California least tern, southern sea otter, rebuilding the stock to its MSY level § 660.60(c)(3) describe the various bull trout, nor bull trout critical habitat. and the harvest control rule to be used Pursuant to Executive Order 13175, purposes for which these GCAs may be to rebuild the stock. The harvest control this final rule was developed after implemented. Regulations at § 660.70 rule may be expressed as a ‘‘Spawning meaningful consultation and define coordinates for these polygonal Potential Ratio’’ or ‘‘SPR’’ harvest rate. collaboration with Tribal officials from GCAs: Yelloweye Rockfish Conservation the area covered by the FMP. Under the Areas, Cowcod Conservation Areas, * * * * * Magnuson-Stevens Act at 16 U.S.C. waters encircling the Farallon Islands, (b) Canary rockfish. Canary rockfish 1852(b)(5), one of the voting members of and waters encircling the Cordell Banks. was declared overfished in 2000. The the Pacific Council must be a GCAs also include Bycatch Reduction target year for rebuilding the canary representative of an Indian Tribe with Areas or BRAs and Rockfish rockfish stock to BMSY is 2030. The Federally recognized fishing rights from Conservation Areas or RCAs, which are harvest control rule to be used to the area of the Council’s jurisdiction. In areas closed to fishing by particular gear rebuild the canary rockfish stock is an addition, regulations implementing the types, bounded by lines approximating annual SPR harvest rate of 88.7 percent. FMP establish a procedure by which the particular depth contours. RCA * * * * * Tribes with treaty fishing rights in the boundaries may and do change (e) Pacific Ocean Perch (POP). POP area covered by the FMP request new seasonally according to conservation was declared overfished in 1999. The allocations or regulations specific to the needs. Regulations at §§ 660.70 through target year for rebuilding the POP stock Tribes, in writing, before the first of the 660.74 define RCA boundary lines with to BMSY is 2051. The harvest control rule two meetings at which the Council latitude/longitude coordinates; to be used to rebuild the POP stock is

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an annual SPR harvest rate of 86.4 (6) Other rockfish—(i) Minor estimated harvest under regulations at percent. nearshore rockfish. Minor nearshore § 660.50); projected scientific research (f) Petrale Sole. Petrale sole was rockfish are subject to a 300-lb (136-kg) catch of all groundfish species, declared overfished in 2010. The target trip limit per species or species group, estimates of fishing mortality in non- year for rebuilding the petrale sole stock or to the non-tribal limited entry trip groundfish fisheries and, as necessary, to BMSY is 2016. The harvest control rule limit for those species if those limits are deductions for EFPs. The remaining is the 25–5 default adjustment. less restrictive than 300 lb (136 kg) per amount after these deductions is the * * * * * trip. Limited entry trip limits for waters fishery harvest guideline or quota. (note: 5. In § 660.50, paragraphs (f) off Washington are specified in Table 1 recreational estimates are not deducted introductory text, (f)(2)(ii), (f)(4), (g) (North) to subpart D, and Table 2 here). introductory text, and (g)(5) through (7) (North) to subpart E of this part. * * * * * are revised and paragraphs (f)(6) and (ii) Minor shelf rockfish and minor (j) Fishery set-asides. Annual set- (f)(7) are added to read as follows: slope rockfish. Redstripe rockfish are asides are not formal allocations but subject to an 800 lb (363 kg) trip limit. they are amounts which are not § 660.50 Pacific Coast treaty Indian Minor shelf (excluding redstripe fisheries. available to the other fisheries during rockfish), and minor slope rockfish the fishing year. For Pacific Coast treaty * * * * * groups are subject to a 300 lb (136 kg) Indian fisheries, set-asides will be (f) Pacific Coast treaty Indian fisheries trip limit per species or species group, deducted from the TAC, OY, ACL, or allocations, harvest guidelines, and set- or to the non-tribal limited entry fixed ACT when specified. For the catcher/ asides. Catch amounts may be specified gear trip limit for those species if those processor and mothership sectors of the in this section and in Tables 1a and 2a limits are less restrictive than 300 lb at-sea Pacific whiting fishery, set-asides to subpart C of this part. Trip limits for (136 kg) per trip. Limited entry fixed will be deducted from the limited entry certain species were recommended by gear trip limits are specified in Table 2 trawl fishery allocation. Set-aside the tribes and the Council and are (North) to subpart E of this part. amounts will be specified in Tables 1a specified in paragraph (g) of this (iii) Other rockfish. All other rockfish, through 2d of this subpart and may be section. not listed specifically in paragraph (g) of adjusted through the biennial harvest * * * * * this section, are subject to a 300 lb (136 specifications and management (2) * * * kg) trip limit per species or species measures process. (ii) The Tribal allocation is 401 mt in group, or to the non-tribal limited entry (k) [Reserved] 2013 and 435 in 2014 per year. This trip limit for those species if those limits * * * * * allocation is, for each year, 10 percent are less restrictive than 300 lb (136 kg) ■ 7. In § 660.60, paragraphs (c) of the Monterey through Vancouver area per trip. Limited entry trip limits for introductory text, (c)(1)(i) introductory (North of 36° N. lat.) ACL. The Tribal waters off Washington are specified in text, (c)(3), (d)(1)(ii), (d)(1)(vi), and allocation is reduced by 1.5 percent for Table1 (North) to subpart D, and Table (h)(2) are revised and paragraph (c)(1)(v) estimated discard mortality. 2 (North) to subpart E of this part. is added to read as follows: * * * * * (7) Flatfish and other fish. Trawl (4) Pacific whiting. The tribal vessels are restricted to using small § 660.60 Specifications and management allocation for 2012 is 48,556 mt. The footrope trawl gear. Treaty fishing measures. tribal allocations will be announced vessels using bottom trawl gear are * * * * * annually in the Federal Register. subject to the following limits: For (c) Routine management measures. * * * * * Dover sole, English sole, other flatfish Catch restrictions that are likely to be (6) Petrale sole. For petrale sole, treaty 110,000 lbs (49,895 kg) per 2 months; adjusted on a biennial or more frequent fishing vessels are restricted to a and for arrowtooth flounder 150,000 lbs basis may be imposed and announced fleetwide harvest target of 220 mt each (68,039 kg) per 2 months. The Dover by a single notification in the Federal year. sole and arrowtooth flounder limits in Register if good cause exists under the (7) Yellowtail rockfish. Yellowtail place at the beginning of the season will APA to waive notice and comment, and rockfish taken in the directed tribal mid- be combined across periods and the if they have been designated as routine water trawl fisheries are subject to a fleet to create a cumulative harvest through the two-meeting process catch limit of 677 mt for the entire fleet. target. The limits available to individual described in the PCGFMP. Routine (g) Pacific Coast treaty Indian fisheries vessels will then be adjusted inseason to management measures that may be management measures. Trip limits for stay within the overall harvest target as revised during the fishing year, via this certain species were recommended by well as estimated impacts to overfished process, are implemented in paragraph the tribes and the Council and are species. (h) of this section, and in subparts C specified here. * * * * * through G of this part, including Tables * * * * * ■ 6. In § 660.55, paragraph (k) is 1a through 1c, and 2a through 2c to (5) Yellowtail and widow rockfish. removed and reserved, and paragraphs subpart C, Tables 1 (North) and 1 The Makah Tribe will manage the (b) introductory text and (j) are revised (South) of subpart D, Tables 2 (North) midwater trawl fisheries as follows: to read as follows: and 2 (South) of subpart E, Tables 3 Landings of widow rockfish must not (North) and 3 (South) of subpart F. Most exceed 10 percent of the weight of § 660.55 Allocations. trip, bag, and size limits, and area yellowtail rockfish landed, for a given * * * * * closures in the groundfish fishery have vessel, throughout the year. These limits (b) Fishery harvest guidelines and been designated ‘‘routine,’’ which may be adjusted by the tribe inseason to reductions made prior to fishery means they may be changed rapidly minimize the incidental catch of canary allocations. Prior to the setting of after a single Council meeting. Council rockfish and widow rockfish, provided fishery allocations, the TAC, ACL, or meetings are held in the months of the catch of yellowtail rockfish does not ACT when specified, is reduced by the March, April, June, September, and exceed the fleetwide catch limit Pacific Coast treaty Indian Tribal November. Inseason changes to routine specified in paragraph (f) of this section. harvest (allocations, set-asides, and management measures are announced in

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the Federal Register pursuant to the account may be carried over from one tribal deductions, the Council shall requirements of the Administrative year to the next. The percentage of consider the allocation framework Procedure Act (APA). Changes to trip surplus QP or IBQ pounds, that may be criteria outlined in the PCGFMP and the limits are effective at the times stated in carried over may be modified on a objectives to maintain or extend fishing the Federal Register. Once a change is biennial or more frequent basis, and and marketing opportunities taking into effective, it is illegal to take and retain, may not be higher than 10 percent. account the best available fishery possess, or land more fish than allowed * * * * * information on sector needs. under the new trip limit. This means (3) All fisheries, all gear types—(i) (d) * * * that, unless otherwise announced in the Depth-based management measures. (1) * * * Federal Register, offloading must begin Depth-based management measures, (ii) Close one or more at-sea sectors of before the time a fishery closes or a particularly the setting of closed areas the fishery when a non-whiting more restrictive trip limit takes effect. known as Groundfish Conservation groundfish species with allocations is The following catch restrictions have Areas, may be implemented in any reached or projected to be reached. been designated as routine: fishery that takes groundfish directly or * * * * * (1) * * * incidentally. Depth-based management (vi) Implement Pacific Whiting (i) Trip landing and frequency limits, measures are set using specific Bycatch Reduction Areas, described at size limits, all gear. Trip landing and boundary lines that approximate depth § 660.131(c)(4), when NMFS projects a frequency limits have been designated contours with latitude/longitude sector-specific allocation will be as routine for the following species or waypoints found at §§ 660.70 through reached before the sector’s whiting species groups: widow rockfish, canary 660.74. Depth-based management allocation. rockfish, yellowtail rockfish, Pacific measures and the setting of closed areas * * * * * ocean perch, yelloweye rockfish, black may be used: to protect and rebuild (h) * * * rockfish, blue rockfish, splitnose overfished stocks, to prevent the (2) Landing. As stated at § 660.11 (in rockfish, blackgill rockfish in the area overfishing of any groundfish species by the definition of ‘‘Land or landing’’), south of 40°10’ N. lat., chilipepper, minimizing the direct or incidental once the offloading of any species bocaccio, cowcod, minor nearshore catch of that species, to minimize the begins, all fish aboard the vessel are rockfish or shallow and deeper minor incidental harvest of any protected or counted as part of the landing and must nearshore rockfish, shelf or minor shelf prohibited species taken in the be reported as such. All fish from a rockfish, and minor slope rockfish; DTS groundfish fishery, to extend the fishing landing must be removed from the complex which is composed of Dover season; for the commercial fisheries, to vessel before a new fishing trip begins, sole, sablefish, shortspine thornyheads, minimize disruption of traditional except for processing vessels fishing in longspine thornyheads; petrale sole, rex fishing and marketing patterns; for the the catcher/processor or mothership sole, arrowtooth flounder, Pacific recreational fisheries, to spread the sectors of the Pacific whiting fishery. sanddabs, and the other flatfish available catch over a large number of Transfer of fish at sea is prohibited complex, which is composed of those anglers; to discourage target fishing under § 660.12, unless a vessel is species plus any other flatfish species while allowing small incidental catches participating in the primary whiting listed at § 660.11; Pacific whiting; to be landed; and to allow small fishery as part of the mothership or lingcod; Pacific cod; spiny dogfish; fisheries to operate outside the normal catcher/processor sectors, as described longnose skate; cabezon in Oregon and season. BRAs may be implemented in at § 660.131(a). Catcher vessels in the California and ‘‘other fish’’ as a complex the Pacific whiting fishery: as an mothership sector must transfer all consisting of all groundfish species automatic action for species with a catch from a haul to the same vessel listed at § 660.11 and not otherwise sector specific allocation, consistent registered to an MS permit prior to the listed as a distinct species or species with paragraph (d)(1) of this section; or gear being set for a subsequent haul. group. In addition to the species and as a routine action consistent with the Catch may not be transferred to a tender species groups listed above, sub-limits purposes for implementing depth based vessel. or aggregate limits may be specified, management and the setting of closed * * * * * specific to the Shorebased IFQ Program, areas as described in paragraph (c)(3)(i) ■ for the following species: big skate, 8. In § 660.72, paragraph (j)(2475) is of this section. redesignated as (j)(247). California skate, California scorpionfish, (ii) Non-tribal deductions from the ■ 9. Section 660.73 is amended as leopard shark, soupfin shark, finescale ACL. Changes to the non-tribal amounts follows: codling, Pacific rattail (grenadier), deducted from the TAC, ACLs, or ACT ■ a. Remove paragraphs (h)(58) and ratfish, kelp greenling, shortbelly, and when specified, described at § 660.55 (h)(59), cabezon in Washington. Size limits have (b)(2) through (4) and specified in the ■ b. Redesignate paragraphs (h)(187) been designated as routine for sablefish footnotes to Tables 1a through 1c, and through (h)(191) as (h)(192) through and lingcod. Trip landing and frequency 2a through 2c, to subpart C, have been (h)(196), (h)(60) through (h)(186) as limits and size limits for species with designated as routine to make fish that (h)(61) through (h)(187), and (h)(192) those limits designated as routine may would otherwise go unharvested through (h)(301) as (h)(200) through be imposed or adjusted on a biennial or available to other fisheries during the more frequent basis for the purpose of (h)(309), fishing year. Adjustments may be made ■ keeping landings within the harvest c. Add paragraphs (h)(58) through to provide additional harvest (h)(60), (h)(188) through (h)(191), levels announced by NMFS, and for the opportunities in groundfish fisheries other purposes given in paragraphs (h)(197) through (h)(199), and paragraph when catch in scientific research (l) to read as follows: (c)(1)(i)(A) and (B) of this section. activities, non-groundfish fisheries, and * * * * * EFPs are lower than the amounts that § 660.73 Latitude/longitude coordinates (v) Shorebased IFQ Program surplus were initially deducted off the TAC, defining the 100 fm (183 m) through 150 fm carryover percentage. As specified at ACL, or ACT when specified, during the (274 m) depth contours. § 660.140(e)(5)(i), a percentage of biennial specifications. When * * * * * surplus QP or IBQ pounds in a vessel recommending adjustments to the non- (h) * * *

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(58) 46°58.36′ N. lat., 124°59.82′ W. (20) 48°03.46′ N. lat., 125°22.10′ W. (55) 47°02.89′ N. lat., 124°56.89′ W. long.; long.; long.; (59) 46°56.80′ N. lat., 125°00.00′ W. (21) 48°04.29′ N. lat., 125°20.37′ W. (56) 47°01.04′ N. lat., 124°59.54′ W. long.; long.; long.; (60) 46°56.62′ N. lat., 125°00.00′ W. (22) 48°02.00′ N. lat., 125°18.50′ W. (57) 46°58.47′ N. lat., 124°59.08′ W. long.; long.; long.; ° ′ ° ′ ° ′ ° ′ * * * * * (23) 48 00.01 N. lat., 125 19.90 W. (58) 46 58.36 N. lat., 124 59.82 W. ° ′ ° ′ long.; long.; (188) 39 49.10 N. lat., 124 06.00 W. ° ′ ° ′ ° ′ ° ′ long.; (24) 47 58.75 N. lat., 125 17.54 W. (59) 46 56.80 N. lat., 125 00.00 W. ° ′ ° ′ long.; long.; (189) 39 48.94 N. lat., 124 04.74 W. ° ′ ° ′ ° ′ ° ′ long.; (25) 47 53.50 N. lat., 125 13.50 W. (60) 46 56.62 N. lat., 125 00.00 W. (190) 39°48.60′ N. lat., 124°04.50′ W. long.; long.; (26) 47°48.88′ N. lat., 125°05.91′ W. (61) 46°57.09′ N. lat., 124°58.86′ W. long.; (191) 39°47.95′ N. lat., 124°05.22′ W. long.; long.; (27) 47°48.50′ N. lat., 125°05.00′ W. (62) 46°55.95′ N. lat., 124°54.88′ W. long.; long.; long.; * * * * * (28) 47°45.98′ N. lat., 125°04.26′ W. (63) 46°54.79′ N. lat., 124°54.14′ W. ° ′ ° ′ (197) 39 31.64 N. lat., 123 56.16 W. long.; long.; long.; (29) 47°45.00′ N. lat., 125°05.50′ W. (64) 46°58.00′ N. lat., 124°50.00′ W. (198) 39°31.40′ N. lat., 123°56.70′ W. long.; long.; long.; (30) 47°42.11′ N. lat., 125°04.74′ W. (65) 46°54.50′ N. lat., 124°49.00′ W. (199) 39°32.35′ N. lat., 123°57.42′ W. long.; long.; long.; (31) 47°39.00′ N. lat., 125°06.00′ W. (66) 46°54.53′ N. lat., 124°52.94′ W. * * * * * long.; long.; (l) The 150 fm (274 m) depth contour (32) 47°35.53′ N. lat., 125°04.55′ W. (67) 46°49.52′ N. lat., 124°53.41′ W. used between the U.S. border with long.; long.; Canada and 40°10′ N. lat., modified to (33) 47°30.90′ N. lat., 124°57.31′ W. (68) 46°42.24′ N. lat., 124°47.86′ W. allow fishing in petrale sole areas, is long.; long.; defined by straight lines connecting all (34) 47°29.54′ N. lat., 124°56.50′ W. (69) 46°39.50′ N. lat., 124°42.50′ W. of the following points in the order long.; long.; ° ′ ° ′ ° ′ ° ′ stated: (35) 47 29.50 N. lat., 124 54.50 W. (70) 46 38.17 N. lat., 124 41.50 W. (1) 48°14.96′ N. lat., 125°41.24′ W. long.; long.; ° ′ ° ′ ° ′ ° ′ long.; (36) 47 28.57 N. lat., 124 51.50 W. (71) 46 37.50 N. lat., 124 41.00 W. (2) 48°12.89′ N. lat., 125°37.83′ W. long.; long.; ° ′ ° ′ ° ′ ° ′ long.; (37) 47 25.00 N. lat., 124 48.00 W. (72) 46 36.50 N. lat., 124 38.00 W. ° ′ ° ′ long.; long.; (3) 48 11.49 N. lat., 125 39.27 W. ° ′ ° ′ ° ′ ° ′ long.; (38) 47 23.95 N. lat., 124 47.24 W. (73) 46 33.85 N. lat., 124 36.99 W. ° ′ ° ′ long.; long.; (4) 48 10.00 N. lat., 125 40.65 W. ° ′ ° ′ ° ′ ° ′ long.; (39) 47 23.00 N. lat., 124 47.00 W. (74) 46 33.50 N. lat., 124 29.50 W. ° ′ ° ′ long.; long.; (5) 48 08.72 N. lat., 125 41.84 W. ° ′ ° ′ ° ′ ° ′ long.; (40) 47 21.00 N. lat., 124 46.50 W. (75) 46 32.00 N. lat., 124 31.00 W. (6) 48°07.00′ N. lat., 125°45.00′ W. long.; long.; (41) 47°18.20′ N. lat., 124°45.84′ W. (76) 46°30.53′ N. lat., 124°30.55′ W. long.; long.; long.; (7) 48°06.13′ N. lat., 125°41.57′ W. (42) 47°18.50′ N. lat., 124°49.00′ W. (77) 46°25.50′ N. lat., 124°33.00′ W. long.; ° ′ ° ′ long.; long.; (8) 48 05.00 N. lat., 125 39.00 W. (43) 47°19.17′ N. lat., 124°50.86′ W. (78) 46°23.00′ N. lat., 124°35.00′ W. long.; ° ′ ° ′ long.; long.; (9) 48 04.15 N. lat., 125 36.71 W. (44) 47°18.07′ N. lat., 124°53.29′ W. (79) 46°21.05′ N. lat., 124°37.00′ W. long.; ° ′ ° ′ long.; long.; (10) 48 03.00 N. lat., 125 36.00 W. (45) 47°17.78′ N. lat., 124°51.39′ W. (80) 46°20.64′ N. lat., 124°36.21′ W. long.; ° ′ ° ′ long.; long.; (11) 48 01.65 N. lat., 125 36.96 W. (46) 47°16.81′ N. lat., 124°50.85′ W. (81) 46°20.36′ N. lat., 124°37.85′ W. long.; ° ′ ° ′ long.; long.; (12) 48 01.00 N. lat., 125 38.50 W. (47) 47°15.96′ N. lat., 124°53.15′ W. (82) 46°19.48′ N. lat., 124°38.35′ W. long.; long.; long.; ° ′ ° ′ (13) 47 57.50 N. lat., 125 36.50 W. (48) 47°14.31′ N. lat., 124°52.62′ W. (83) 46°17.87′ N. lat., 124°38.54′ W. long.; long.; long.; (14) 47°56.53′ N. lat., 125°30.33′ W. (49) 47°11.87′ N. lat., 124°56.90′ W. (84) 46°16.15′ N. lat., 124°25.20′ W. long.; long.; long.; (15) 47°57.28′ N. lat., 125°27.89′ W. (50) 47°12.39′ N. lat., 124°58.09′ W. (85) 46°16.00′ N. lat., 124°23.00′ W. long.; long.; long.; (16) 47°59.00′ N. lat., 125°25.50′ W. (51) 47°09.50′ N. lat., 124°57.50′ W. (86) 46°14.87′ N. lat., 124°26.15′ W. long.; long.; long.; (17) 48°01.77′ N. lat., 125°24.05′ W. (52) 47°09.00′ N. lat., 124°59.00′ W. (87) 46°13.37′ N. lat., 124°31.36′ W. long.; long.; long.; (18) 48°02.08′ N. lat., 125°22.98′ W. (53) 47°06.06′ N. lat., 124°58.80′ W. (88) 46°12.08′ N. lat., 124°38.39′ W. long.; long.; long.; (19) 48°03.00′ N. lat., 125°22.50′ W. (54) 47°03.62′ N. lat., 124°55.96′ W. (89) 46°09.46′ N. lat., 124°40.64′ W. long.; long.; long.;

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(90) 46°07.29′ N. lat., 124°40.89′ W. (125) 43°04.60′ N. lat., 124°53.02′ W. (160) 40°38.87′ N. lat., 124°30.18′ W. long.; long.; long.; (91) 46°02.76′ N. lat., 124°44.01′ W. (126) 43°02.64′ N. lat., 124°52.01′ W. (161) 40°38.38′ N. lat., 124°30.18′ W. long.; long.; long.; (92) 46°01.22′ N. lat., 124°43.47′ W. (127) 43°00.39′ N. lat., 124°51.77′ W. (162) 40°37.33′ N. lat., 124°29.27′ W. long.; long.; long.; (93) 45°51.82′ N. lat., 124°42.89′ W. (128) 42°58.00′ N. lat., 124°52.99′ W. (163) 40°35.60′ N. lat., 124°30.49′ W. long.; long.; long.; (94) 45°46.00′ N. lat., 124°40.88′ W. (129) 42°57.56′ N. lat., 124°54.10′ W. (164) 40°37.38′ N. lat., 124°37.14′ W. long.; long.; long.; (95) 45°45.95′ N. lat., 124°40.72′ W. (130) 42°53.93′ N. lat., 124°54.60′ W. (165) 40°36.03′ N. lat., 124°39.97′ W. long.; long.; long.; (96) 45°45.21′ N. lat., 124°41.70′ W. (131) 42°53.26′ N. lat., 124°53.94′ W. (166) 40°31.58′ N. lat., 124°40.74′ W. long.; long.; long.; (97) 45°42.72′ N. lat., 124°41.22′ W. (132) 42°52.31′ N. lat., 124°50.76′ W. (167) 40°30.30′ N. lat., 124°37.63′ W. long.; long.; long.; ° ′ ° ′ ° ′ ° ′ (98) 45 34.50 N. lat., 124 30.28 W. (133) 42 50.00 N. lat., 124 48.97 W. (168) 40°28.22′ N. lat., 124°37.23′ W. long.; long.; long.; ° ′ ° ′ ° ′ ° ′ (99) 45 21.10 N. lat., 124 23.11 W. (134) 42 47.78 N. lat., 124 47.27 W. (169) 40°24.86′ N. lat., 124°35.71′ W. long.; long.; ° ′ ° ′ ° ′ ° ′ long.; (100) 45 20.25 N. lat., 124 22.92 W. (135) 42 46.31 N. lat., 124 43.60 W. (170) 40°23.01′ N. lat., 124°31.94′ W. long.; long.; ° ′ ° ′ ° ′ ° ′ long.; (101) 45 09.69 N. lat., 124 20.45 W. (136) 42 41.63 N. lat., 124 44.07 W. (171) 40°23.39′ N. lat., 124°28.64′ W. long.; long.; ° ′ ° ′ ° ′ ° ′ long.; (102) 45 03.83 N. lat., 124 23.30 W. (137) 42 40.50 N. lat., 124 43.52 W. (172) 40°22.29′ N. lat., 124°25.25′ W. long.; long.; ° ′ ° ′ ° ′ ° ′ long.; (103) 44 56.41 N. lat., 124 27.65 W. (138) 42 38.83 N. lat., 124 42.77 W. (173) 40°21.90′ N. lat., 124°25.18′ W. long.; long.; ° ′ ° ′ ° ′ ° ′ long.; (104) 44 44.47 N. lat., 124 37.85 W. (139) 42 35.36 N. lat., 124 43.22 W. (174) 40°22.02′ N. lat., 124°28.00′ W. long.; long.; ° ′ ° ′ ° ′ ° ′ long.; (105) 44 37.17 N. lat., 124 38.60 W. (140) 42 32.78 N. lat., 124 44.68 W. (175) 40°21.34′ N. lat., 124°29.53′ W. long.; long.; ° ′ ° ′ ° ′ ° ′ long.; (106) 44 35.55 N. lat., 124 39.27 W. (141) 42 32.02 N. lat., 124 43.00 W. (176) 40°19.74′ N. lat., 124°28.95′ W. long.; long.; ° ′ ° ′ ° ′ ° ′ long.; (107) 44 31.81 N. lat., 124 39.60 W. (142) 42 30.54 N. lat., 124 43.50 W. (177) 40°18.13′ N. lat., 124°27.08′ W. long.; long.; long.; (108) 44°31.48′ N. lat., 124°43.30′ W. (143) 42°28.16′ N. lat., 124°48.38′ W. (178) 40°17.45′ N. lat., 124°25.53′ W. long.; long.; long.; (109) 44°12.67′ N. lat., 124°57.87′ W. (144) 42°18.26′ N. lat., 124°39.01′ W. (179) 40°17.97′ N. lat., 124°24.12′ W. long.; long.; long.; (110) 44°08.30′ N. lat., 124°57.84′ W. (145) 42°13.66′ N. lat., 124°36.82′ W. (180) 40°15.96′ N. lat., 124°26.05′ W. long.; long.; (111) 44°07.38′ N. lat., 124°57.87′ W. (146) 42°00.00′ N. lat., 124°35.99′ W. long.; (181) 40°16.90′ N. lat., 124°34.20′ W. long.; long.; ° ′ ° ′ ° ′ ° ′ long.; (112) 43 57.42 N. lat., 124 57.20 W. (147) 41 47.80 N. lat., 124 29.41 W. ° ′ ° ′ long.; long.; (182) 40 16.29 N. lat., 124 34.50 W. ° ′ ° ′ ° ′ ° ′ long.; (113) 43 52.52 N. lat., 124 49.00 W. (148) 41 41.67 N. lat., 124 29.46 W. ° ′ ° ′ long.; long.; (183) 40 14.91 N. lat., 124 33.60 W. ° ′ ° ′ ° ′ ° ′ long.; and (114) 43 51.55 N. lat., 124 37.49 W. (149) 41 22.80 N. lat., 124 29.10 W. ° ′ ° ′ long.; long.; (184) 40 10.00 N. lat., 124 22.96 W. (115) 43°47.83′ N. lat., 124°36.43′ W. (150) 41°13.29′ N. lat., 124°23.31′ W. long. long.; long.; ■ 10. Section 660.74 is amended as (116) 43°31.79′ N. lat., 124°36.80′ W. (151) 41°06.23′ N. lat., 124°22.62′ W. follows: long.; long.; ■ a. Remove paragraph (g)(87), (117) 43°29.34′ N. lat., 124°36.77′ W. (152) 40°55.60′ N. lat., 124°26.04′ W. ■ b. Redesignate paragraphs (g)(88) long.; long.; through (g)(257) as (g)(89) through (118) 43°26.37′ N. lat., 124°39.53′ W. (153) 40°53.97′ N. lat., 124°26.16′ W. (g)(258), long.; long.; ■ c. Add paragraphs (g)(87) through (119) 43°20.83′ N. lat., 124°42.39′ W. (154) 40°53.94′ N. lat., 124°26.10′ W. (g)(88), to read as follows: long.; long.; (120) 43°16.15′ N. lat., 124°44.36′ W. (155) 40°50.31′ N. lat., 124°26.16′ W. § 660.74 Latitude/longitude coordinates defining the 180 fm (329 m) through 250 fm long.; long.; (457 m) depth contours. (121) 43°09.33′ N. lat., 124°45.35′ W. (156) 40°49.82′ N. lat., 124°26.58′ W. long.; long.; * * * * * (122) 43°08.77′ N. lat., 124°49.82′ W. (157) 40°49.62′ N. lat., 124°26.57′ W. (g) * * * ° ′ ° ′ long.; long.; (87) 44 21.73 N. lat., 124 49.82 W. (123) 43°08.83′ N. lat., 124°50.93′ W. (158) 40°45.72′ N. lat., 124°30.00′ W. long.; ° ′ ° ′ long.; long.; (88) 44 17.57 N. lat., 124 55.04 W. (124) 43°05.89′ N. lat., 124°51.60′ W. (159) 40°40.56′ N. lat., 124°32.11′ W. long.; long.; long.; * * * * *

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■ 11a. Tables 1a through 1d, Subpart C, are revised to read as follows: BILLING CODE 3510–22–P

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■ 11b. Tables 2a through 2d, Subpart C, are revised to read as follows

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BILLING CODE 3510–22–C gear authorized for use within a GCA IFQ SPECIES—Continued ■ 12. In § 660.112, the introductory text may not have any other type of trawl and paragraph (b)(1)(xv) are revised to Shortspine thornyhead N. of 34°27′ N. lat. gear on board the vessel. The following ° ′ read as follows: GCAs apply to vessels participating in Shortspine thornyhead S. of 34 27 N. lat. Splitnose rockfish S. of 40°10′ N. lat. the limited entry trawl fishery. § 660.112 Trawl fishery—prohibitions. Widow rockfish Additional closed areas that specifically These prohibitions are specific to the Yelloweye rockfish apply to the Pacific whiting fisheries are Yellowtail rockfish N. of 40°10′ N. lat. limited entry trawl fisheries. General described at § 660.131(c). groundfish prohibitions are defined at * * * * * * * * * * § 660.12. In addition to the general ■ (d) * * * prohibitions specified in § 600.725 of 14. In § 660.140, paragraphs (c)(1) table, (d)(1)(ii) introductory text, (1) * * * this chapter, it is unlawful for any (ii) Annual QP and IBQ pound person or vessel to: (d)(1)(ii)(D), (d)(3)(ii)(B)(3), (d)(4)(i)(C), (e)(4)(i), (e)(5) introductory text, (e)(5)(i), allocations. QP and IBQ pounds will be * * * * * and (e)(5)(ii) introductory text are deposited into QS accounts annually. (b) * * * revised and paragraphs (d)(1)(ii)(A)(3), QS permit owners will be notified of QP (1) * * * deposits via the IFQ Web site and their (xv) Begin a new fishing trip until all (d)(1)(ii)(B)(3) and (d)(1)(ii)(B)(4) are added to read as follows: QS account. QP and IBQ pounds will be fish from an IFQ landing have been issued to the nearest whole pound using offloaded from the vessel, consistent § 660.140 Shorebased IFQ Program. standard rounding rules (i.e., decimal with § 660.12(a)(11). * * * * * amounts less than 0.5 round down and * * * * * (c) * * * 0.5 and greater round up), except that in ■ 13. In § 660.130, paragraphs (d) (1) * * * the first year of the Shorebased IFQ introductory text, (d)(1)(iii), and (e) Program, issuance of QP for overfished introductory text are revised to read as IFQ SPECIES species greater than zero but less than follows: one pound will be rounded up to one Roundfish pound. Rounding rules may affect § 660.130 Trawl fishery—management distribution of the entire shorebased ° ′ measures. Lingcod N. of 40 10 N. lat. trawl allocation. NMFS will distribute Lingcod S. of 40°10′ N. lat. * * * * * such allocations to the maximum extent (d) Sorting. In addition to the Pacific cod Pacific whiting practicable, not to exceed the total requirements at § 660.12(a)(8), the States Sablefish N. of 36° N. lat. allocation. QS permit owners must of Washington, Oregon, and California Sablefish S. of 36° N. lat. transfer their QP and IBQ pounds from may also require that vessels record their QS account to a vessel account in their landings as sorted on their state Flatfish order for those QP and IBQ pounds to landing receipt. Sector-specific sorting be fished. QP and IBQ pounds must be Arrowtooth flounder requirements and exceptions are listed transferred in whole pounds (i.e., no at paragraphs (d)(2) and (d)(3) of this Dover sole English sole fraction of a QP or IBQ pound can be section. Other flatfish stock complex transferred). All QP and IBQ pounds in (1) * * * a QS account must be transferred to a ° ′ Petrale sole (iii) South of 40 10 N. lat. Minor Starry flounder vessel account by September 1 of each shallow nearshore rockfish, minor Pacific halibut (IBQ) N. of 40°10′ N. lat. year in order to be fished, unless there deeper nearshore rockfish, California is a reapportionment of Pacific whiting scorpionfish, chilipepper, bocaccio, Rockfish consistent with § 660.131(h) and splitnose rockfish, Pacific sanddabs, ° ′ paragraph (d)(3) of this section or a cowcod, bronzespotted rockfish, Bocaccio S. of 40 10 N. lat. Canary rockfish release of additional QP consistent with blackgill rockfish and cabezon. Chilipepper S. of 40°10′ N. lat. § 660.60(c) and paragraph (d)(3)(ii)(B)(3) * * * * * Cowcod S. of 40°10′ N. lat. of this section. (e) Groundfish conservation areas Darkblotched rockfish (A) * * * (GCAs) applicable to trawl vessels. A Longspine thornyhead N. of 34°27′ N. lat. (3) In years where the non-tribal GCA, a type of closed area, is a Minor shelf rockfish complex N. of 40°10′ N. deductions from the TAC, ACL, or ACT geographic area defined by coordinates lat. when specified, described at § 660.55(b), Minor shelf rockfish complex S. of 40°10′ N. expressed in degrees of latitude and lat. were too high and would go longitude. The latitude and longitude Minor slope rockfish complex N. of 40°10′ N. unharvested, NMFS may increase the coordinates of the GCA boundaries are lat. shorebased trawl allocation, consistent specified at §§ 660.70 through 660.74. A Minor slope rockfish complex S. of 40°10′ N. with § 660.60(c), and issue additional vessel that is fishing within a GCA lat. QP to QS accounts. listed in this paragraph (e) with trawl Pacific ocean perch N. of 40°10′ N. lat. (B) * * *

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(3) In years where the non-tribal with § 660.60(c), and issue additional and issue additional QP to QS accounts deductions from the TAC, ACL, or ACT QP to QS accounts. as described at paragraph (d)(3)(ii)(B)(3) when specified, described at § 660.55(b), (4) In years where there is of this section. were too high and would go reapportionment of Pacific whiting, * * * * * unharvested, NMFS may increase the specified at § 660.131(h), to the (D) For the trawl fishery, NMFS will shorebased trawl allocation, consistent Shorebased IFQ Program, NMFS will issue QP based on the following increase the shorebased trawl allocation shorebased trawl allocations:

SHOREBASED TRAWL ALLOCATIONS

2013 shorebased 2014 shorebased IFQ species Management area trawl allocation trawl allocation (mt) (mt)

Arrowtooth flounder ...... 3,846.13 3,467.08 BOCACCIO ...... South of 40°10′ N. lat...... 74.90 79.00 CANARY ROCKFISH ...... 39.90 41.10 Chilipepper ...... South of 40°10′ N. lat...... 1,099.50 1,067.25 COWCOD ...... South of 40°10′ N. lat...... 1.00 1.00 DARKBLOTCHED ROCKFISH ...... 266.70 278.41 Dover sole ...... 22,234.50 22,234.50 English sole ...... 6,365.03 5,255.59 Lingcod ...... North of 40°10′ N. lat...... 1,222.57 1,151.68 Lingcod ...... South of 40°10′ N. lat...... 494.41 472.88 Longspine thornyhead ...... North of 34°27′ N. lat...... 1,859.85 1,811.40 Minor shelf rockfish complex ...... North of 40°10′ N. lat...... 508.00 508.00 Minor shelf rockfish complex ...... South of 40°10′ N. lat...... 81.00 81.00 Minor slope rockfish complex ...... North of 40°10′ N. lat...... 776.93 776.93 Minor slope rockfish complex ...... South of 40°10′ N. lat...... 376.11 378.63 Other flatfish complex ...... 4,189.61 4,189.61 Pacific cod ...... 1,125.29 1,125.29 PACIFIC OCEAN PERCH ...... North of 40°10′ N. lat...... 109.43 112.28 Pacific Whiting ...... PETRALE SOLE ...... 2,318.00 2,378.00 Sablefish ...... North of 36° N. lat...... 1,828.00 1,988.00 Sablefish ...... South of 36° N. lat...... 602.28 653.10 Shortspine thornyhead ...... North of 34°27′ N. lat...... 1,385.35 1,371.12 Shortspine thornyhead ...... South of 34°27′ N. lat...... 50.00 50.00 Splitnose rockfish ...... South of 40°10′ N. lat...... 1,518.10 1,575.10 Starry flounder ...... 751.50 755.50 Widow rockfish ...... 993.83 993.83 YELLOWEYE ROCKFISH ...... 1.00 1.00 Yellowtail rockfish ...... North of 40°10′ N. lat...... 2,635.33 2,638.85

* * * * * Regional Administrator makes a (C) The Shorebased IFQ Program (3) * * * decision to reapportion Pacific whiting accumulation limits are as follows: (ii) * * * from the tribal to the non-tribal fishery (B) * * * or NMFS releases additional QP ACCUMULATION LIMITS (3) Transfer of QP or IBQ pounds from consistent with § 660.60(c) and a QS account to a vessel account. QP or paragraph (d)(1)(ii) of this section, the QS and IBQ IBQ pounds must be transferred in following actions will be taken. Species category control limit whole pounds (i.e. no fraction of a QP (in percent) can be transferred). QP or IBQ pounds (i) NMFS will credit QS accounts with must be transferred to a vessel account additional QP proportionally, based on Arrowtooth flounder ...... 10 Bocaccio S. of 40°10′ N. in order to be used. Transfers of QP or the QS percent for a particular QS permit owner and the increase in the lat...... 13 .2 IBQ pounds from a QS account to a Canary rockfish ...... 4.4 vessel account are subject to vessel shorebased trawl allocation specified at ° ′ paragraph (d)(1)(ii)(D) of this section. Chilipepper S. of 40 10 accumulation limits and NMFS’ N. lat...... 10 approval. Once QP or IBQ pounds are (ii) The QS account transfer function Cowcod S. of 40°10′ N. transferred from a QS account to a will be reactivated by NMFS from the lat...... 17 .7 vessel account (accepted by the date that QS accounts are credited with Darkblotched rockfish ..... 4 .5 transferee/vessel owner), they cannot be additional QP to allow permit holders to Dover sole ...... 2 .6 transferred back to a QS account and transfer QP to vessel accounts only for English sole ...... 5 Lingcod: may only be transferred to another those IFQ species with additional QP. ° ′ vessel account. QP or IBQ pounds may N. of 40 10 N. lat...... 2.5 (iii) After December 15, the transfer S. of 40°10′ N. lat...... 2.5 not be transferred from one QS account function in QS accounts will again be Longspine thornyhead: to another QS account. All QP or IBQ inactivated. N. of 34°27′ N. lat...... 6 pounds from a QS account must be * * * * * Minor rockfish complex transferred to one or more vessel N. of 40°10′ N. lat.: accounts by September 1 each year. If, (4) * * * Shelf species ...... 5 after September 1 in any year, the (i) * * * Slope species ...... 5

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ACCUMULATION LIMITS—Continued ACCUMULATION LIMITS—Continued (e) * * * (4) * * * QS and IBQ QS and IBQ Species category control limit Species category control limit (i) Vessel limits. For each IFQ species (in percent) (in percent) or species group specified in this paragraph, vessel accounts may not Minor rockfish complex S. of 36° N. lat. (Con- ° ′ have QP or IBQ pounds in excess of the S. of 40 10 N. lat.: ception area) ...... 10 QP Vessel Limit (Annual Limit) in any Shelf species ...... 9 Shortspine thornyhead: Slope species ...... 6 ° ′ year, and, for species covered by N. of 34 27 N. lat...... 6 Unused QP Vessel Limits (Daily Limit), Other flatfish stock com- S. of 34°27′ N. lat...... 6 may not have QP or IBQ pounds in plex ...... 10 Splitnose rockfish S. of Pacific cod ...... 12 40°10′ N. lat...... 10 excess of the Unused QP Vessel Limit at Pacific halibut (IBQ) N. of Starry flounder ...... 10 any time. The QP Vessel Limit (Annual 40°10′ N. lat...... 5 .4 Limit) is calculated as unused available Pacific ocean perch N. of Widow rockfish ...... 5.1 ° ′ Yelloweye rockfish ...... 5.7 QPs plus used QPs (landings and 40 10 N. lat...... 4 discards) plus any pending outgoing Pacific whiting (shore- Yellowtail rockfish N. of ° ′ side) ...... 10 40 10 N. lat...... 5 transfer of QPs. The Unused QP Vessel Petrale sole ...... 3 Non-whiting groundfish Limits (Daily Limit) is calculated as Sablefish: species ...... 2 .7 unused available QPs plus any pending N. of 36° N. lat. (Mon- outgoing transfer of QPs. These vessel terey north) ...... 3 * * * * * limits are as follows:

VESSEL LIMITS

QP vessel limit (annual Unused QP vessel limit Species category limit) (in percent) (daily limit) (in percent)

Arrowtooth flounder ...... 20 ...... Bocaccio S. of 40°10′ N. lat...... 15 .4 13 .2 Canary rockfish ...... 10 4.4 Chilipepper S. of 40°10′ N. lat...... 15 ...... Cowcod S. of 40°10′ N. lat...... 17 .7 17 .7 Darkblotched rockfish ...... 6 .8 4 .5 Dover sole ...... 3 .9 ...... English sole ...... 7.5 ...... Lingcod: N. of 40°10′ N. lat...... 5.3 ...... S. of 40°10′ N. lat...... 13 .3 ...... Longspine thornyhead: N. of 34°27′ N. lat...... 9 ...... Minor rockfish complex N. of 40°10′ N. lat.: Shelf species ...... 7 .5 ...... Slope species ...... 7.5 ...... Minor rockfish complex S. of 40°10′ N. lat.: Shelf species ...... 13 .5 ...... Slope species ...... 9 ...... Other flatfish complex ...... 15 ...... Pacific cod ...... 20 ...... Pacific halibut (IBQ) N. of 40°10′ N. lat...... 14.4 5.4 Pacific ocean perch N. of 40°10′ N. lat...... 6 4 Pacific whiting (shoreside) ...... 15 ...... Petrale sole ...... 4.5 ...... Sablefish: N. of 36° N. lat. (Monterey north) ...... 4.5 ...... S. of 36° N. lat. (Conception area) ...... 15 ...... Shortspine thornyhead: N. of 34°27′ N. lat...... 9 ...... S. of 34°27′ N. lat...... 9 ...... Splitnose rockfish S. of 40°10′ N. lat...... 15 ...... Starry flounder ...... 20 ...... Widow rockfish ...... 8.5 5.1 Yelloweye rockfish ...... 11.4 5.7 Yellowtail rockfish N. of 40°10′ N. lat...... 7.5 ...... Non-whiting groundfish species ...... 3 .2 ......

* * * * * one year to be covered with QP or IBQ vessel account for the base year, less any (5) Carryover. The carryover provision pounds from a subsequent year, up to a transfers out of the vessel account, any allows a limited amount of surplus QP carryover limit. The carryover limit is QP resulting from reapportionment of or IBQ pounds in a vessel account to be calculated by multiplying the carryover whiting specified at § 660.60(d) or carried over from one year to the next percentage by the cumulative total of QP release of additional QP during the year or allows a deficit in a vessel account in or IBQ pounds (used and unused) in a specified at § 660.60(c)(3)(ii), or any

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previous carryover amounts. The carryover amount to the vessel account for more than one year. Any amount of percentage used for the carryover in the immediately following year once QP or IBQ pounds in a vessel account provision may be changed during the NMFS has completed its end-of-the-year and in excess of the carryover amount biennial specifications and management account reconciliation. If NMFS will expire on December 31 each year measures process, and, for the surplus disagrees with all or part of the Council and will not be available for any future carryover provision specified in recommendation, NMFS will not credit use. paragraph (e)(5)(i) of this section, the the vessel accounts, as appropriate, and (ii) Deficit QP or IBQ pounds. If an percentage is designated as a ‘‘routine will notify the Council in writing, IFQ species is reallocated between the management measure’’ at describing the basis for the decision. base year and the following year due to § 660.60(c)(1)(v) and may be changed NMFS will notify vessel account owners changes in management areas or through an inseason action, but may not through the online IFQ system of any subdivision of a species group as exceed 10 percent. additional QP or IBQ pounds resulting specified at paragraph (c)(3)(vii) of this (i) Surplus QP or IBQ pounds. A from a carryover of surplus pounds, and section, a vessel account will not vessel account with a surplus of QP or will not issue those pounds above the carryover the deficit for that IFQ species IBQ pounds (unused QP or IBQ pounds) vessel limits (specified at paragraph into the following year. A vessel account for any IFQ species at the end of the (e)(4) of this section). If there is a with a deficit (negative balance) of QP fishing year may carryover for use in the decline in the ACL between the base or IBQ pounds for any IFQ species in immediately following year an amount year and the following year in which the the current year may cover that deficit of unused QP or IBQ pounds up to its QP or IBQ pounds would be carried with QP or IBQ pounds from the carry over limit. The carryover limit for over, the carryover amount will be following year without incurring a the surplus is calculated as 10 percent reduced in proportion to the reduction violation if all of the following of the cumulative total QP or IBQ in the ACL. When surplus QP or IBQ conditions are met: pounds (used and unused, less any pounds are issued, those pounds are * * * * * transfers or any previous carryover deposited directly into the vessel ■ 15. Table 1 (North) and Table 1 amounts) in the vessel account at the accounts and do not increase the (South) to part 660, subpart D, are end of the year. Based on a Council shorebased trawl allocation. Surplus QP revised to read as follows: recommendation, NMFS will credit the or IBQ pounds may not be carried over BILLING CODE 3510–22–P

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■ 16. In § 660.230, paragraphs (c)(1), (2) For limited entry fixed gear ■ 17. In § 660.231, the introductory text (c)(2) introductory text, (c)(2)(ii) and vessels, the following species must be and paragraph (b)(3)(i) are revised to (c)(2)(iii) are revised to read as follows: sorted: read as follows: * * * * * § 660.230 Fixed gear fishery— § 660.231 Limited entry fixed gear management measures. (ii) North of 40°10′ N. lat.—POP, sablefish primary fishery. * * * * * yellowtail rockfish, cabezon (Oregon This section applies to the sablefish and California); (c) * * * primary fishery for the limited entry (iii) South of 40°10′ N. lat.—minor fixed gear fishery north of 36° N. lat. (1) In addition to the requirements at shallow nearshore rockfish, minor Limited entry and open access fixed § 660.12(a)(8) the States of Washington, deeper nearshore rockfish, California gear sablefish fishing outside of the Oregon, and California may also require scorpionfish, chilipepper, bocaccio, sablefish primary season north of 36° N. that vessels record their landings as splitnose rockfish, Pacific sanddabs, lat. is governed by management sorted on their state landing receipts. cowcod, bronzespotted rockfish, measures imposed under §§ 660.230, blackgill rockfish and cabezon. 660.232, 660.330 and 660.332. * * * * * * * * * *

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(b) * * * vessel limits for species other than season sablefish limit(s) have been (3) * * * sablefish, and to per vessel limits when taken, or after the close of the primary (i) A vessel participating in the participating in the daily trip limit season, whichever occurs earlier. A primary season will be constrained by fishery for sablefish under § 660.232. In vessel’s primary season cumulative the sablefish cumulative limit 2013, the following annual limits are in limit(s) are considered to be taken when associated with each of the permits effect: Tier 1 at 34,513lb (15,665 kg), the total amount remaining is less than registered for use with that vessel. Tier 2 at 15,688 lb (7,116 kg), and Tier the daily trip limit for sablefish north of During the primary season, each vessel 3 at 8,964 lb (4,066 kg). For 2014 and 36° N. lat., if one is specified, in Table authorized to fish in that season under beyond, the following annual limits are 2 (North) and Table 2 (South) to this paragraph (a) of this section may take, in effect: Tier 1 at 37,441 lb (16,983 kg), subpart. If no daily limit is specified, retain, possess, and land sablefish, up to Tier 2 at 17,019 lb (7,720 kg), and Tier the primary season cumulative limit(s) the cumulative limits for each of the 3 at 9,725 lb (4,411 kg). are considered to be taken when the permits registered for use with that * * * * * total amount remaining is less than 300 vessel (i.e., stacked permits). If multiple ■ 18. In § 660.232, paragraphs (a)(2) and pounds. Any subsequent sablefish limited entry permits with sablefish (a)(3) are revised to read as follows: landings by that vessel will be subject endorsements are registered for use with to the restrictions and limits of the a single vessel, that vessel may land up § 660.232 Limited entry daily trip limit limited entry DTL fishery for sablefish to the total of all cumulative limits (DTL) fishery for sablefish. for the remainder of the fishing year. announced in this paragraph for the (a) * * * (3) No vessel may land sablefish tiers for those permits, except as limited (2) Following the start of the primary against both its primary season by paragraph (b)(3)(ii) of this section. season, all landings made by a vessel cumulative sablefish limits and against Up to 3 permits may be registered for authorized by § 660.231(a) to fish in the the DTL fishery limits within the same use with a single vessel during the primary season will count against the 24 hour period of 0001 hours local time primary season; thus, a single vessel primary season cumulative limit(s) to 2400 hours local time. may not take and retain, possess or land associated with the permit(s) registered * * * * * more than 3 primary season sablefish for use with that vessel. A vessel that is cumulative limits in any one year. A eligible to fish in the sablefish primary ■ 19. Table 2 (North) and Table 2 vessel registered for use with multiple season may fish in the DTL fishery for (South) to part 660, subpart E are limited entry permits is subject to per sablefish once that vessels’ primary revised to read as follows:

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■ 20. In § 660.330, paragraph (c) is lingcod, sablefish, Pacific cod, spiny long as that fishery is open during the revised to read as follows: dogfish, longnose skate, other fish, year, subject to the routine management Pacific whiting, and Pacific sanddabs; measures imposed under § 660.60. § 660.330 Open access fishery— ° ′ management measures. (ii) North of 40 10 N. lat.—POP, (b) Trip limits. (1) Daily and/or yellowtail rockfish, cabezon (Oregon weekly trip limits for the open access * * * * * and California); fishery north and south of 36° N. lat. are (c) Sorting requirements. (1) In ° ′ provided in Tables 3 (North) and 3 addition to the requirements at (iii) South of 40 10 N. lat.—minor (South) of this subpart. § 660.12(a)(8) the States of Washington, shallow nearshore rockfish, minor (2) Trip and/or frequency limits may Oregon, and California may also require deeper nearshore rockfish, chilipepper, be imposed in the limited entry fishery that vessels record their landings as bocaccio, splitnose rockfish, cowcod, on vessels that are not participating in sorted on their state landing receipts. bronzespotted rockfish, blackgill (2) For open access vessels, the rockfish and cabezon. the primary season under § 660.60. following species must be sorted: * * * * * (3) Trip and/or size limits to protect juvenile sablefish in the limited entry or (i) Coastwide—widow rockfish, ■ 21. In § 660.332, paragraphs (a) and open access fisheries also may be canary rockfish, darkblotched rockfish, (b) are revised to read as follows: yelloweye rockfish, shortbelly rockfish, imposed at any time under § 660.60. black rockfish, blue rockfish, minor § 660.332 Open access daily trip limit (4) Trip limits may be imposed in the nearshore rockfish, minor shelf rockfish, (DTL) fishery for sablefish. open access fishery at any time under minor slope rockfish, shortspine and (a) Open access DTL fisheries both § 660.60. longspine thornyhead, Dover sole, north and south of 36° N. lat. Open ■ 22. Tables 3 (North) and 3 (South), to arrowtooth flounder, petrale sole, starry access vessels may fish in the open part 660, subpart F, are revised to read flounder, English sole, other flatfish, access, daily trip limit fishery for as as follows:

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BILLING CODE 3510–22–C and (2), (c)(3)(v)(A)(1) through (3) are (c) * * * ■ 23. In § 660.360, paragraphs revised to read as follows: (1) * * * (c)(1)(i)(D)(1), (c)(1)(iv)(A) and (B), (c)(3) (i) * * * introductory text, (c)(3)(i)(A)(1), and (2), § 660.360 Recreational fishery- (D) * * * (c)(3)(i)(B), (c)(3)(ii)(A)(1) and (2), management measures (1) West of the Bonilla-Tatoosh line (c)(3)(ii)(B) through (D), (c)(3)(iii)(A)(1) * * * * * Between the U.S. border with Canada

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and the Queets River (Washington state greenling. Retention of cowcod, paragraph (c)(3)(iv) of this section Marine Area 3 and 4), recreational yelloweye rockfish, bronzespotted during January–February). Retention of fishing for groundfish is prohibited rockfish, and canary rockfish is canary rockfish, yelloweye rockfish, seaward of a boundary line prohibited in the recreational fishery bronzespotted rockfish and cowcod is approximating the 20 fm (37 m) depth seaward of California all year in all prohibited within the CCA. [Note: contour from May 1 through September areas. For each person engaged in California state regulations also permit 30, except on days when the Pacific recreational fishing in the EEZ seaward recreational fishing for California halibut fishery is open in this area it is of California, the following closed areas, sheephead, ocean whitefish, and all lawful to retain, lingcod, Pacific cod and seasons, bag limits, and size limits greenlings of the genus Hexagrammos sablefish seaward of the 20 fm (37 m) apply: shoreward of the 20 fm (37 m) depth boundary. Days open to Pacific halibut * * * * * contour in the CCAs when the season recreational fishing off Washington are (i) * * * for the RCG complex is open south of announced on the NMFS hotline at (A) * * * 34°27′ N. lat.] It is unlawful to take and (206) 526–6667 or (800) 662–9825. (1) Between 42° N. lat. (California/ retain, possess, or land groundfish Coordinates for the boundary line Oregon border) and 40°10′ N. lat. within the CCAs, except for species approximating the 20 fm (37 m) depth (Northern Management Area), authorized in this section. contour are listed in § 660.71, subpart C. recreational fishing for all groundfish * * * * * (iv) * * * (except ‘‘other flatfish’’ as specified in (ii) * * * (A) Between the U.S./Canada border paragraph (c)(3)(iv) of this section) is (A) * * * and 48°10′ N. lat. (Cape Alava) prohibited seaward of the 20 fm (37 m) (1) Between 42° N. lat. (California/ (Washington Marine Area 4), depth contour along the mainland coast Oregon border) and 40°10′ N. lat. (North recreational fishing for lingcod is open, and along islands and offshore Management Area), recreational fishing for 2013, from April 16 through October seamounts from May 15 through for the RCG complex is open from May 12, and for 2014, from April 16 through October 31 (shoreward of 20 fm is 15 through October 31 (i.e., it’s closed October 15. Lingcod may be no smaller open); and is closed entirely from from January 1 through May 14 and than 24 inches (61 cm) total length. January 1 through May 14- and from from November 1 through December 31. (B) Between 48°10′ N. lat. (Cape November 1 through December 31. (2) Between 40°10′ N. lat. and Alava) and 46°16′ N. lat. (Washington/ (2) Between 40°10′ N. lat. and 38°57.50′ N. lat. (Mendocino Oregon border) (Washington Marine 38°57.50′ N. lat. (Mendocino Management Area), recreational fishing Areas 1–3), recreational fishing for Management Area), recreational fishing for the RCG Complex is open from May lingcod is open for 2013, from March 16 for all groundfish (except ‘‘other 15, 2013 through September 2, 2013 through October 12, and for 2014, from flatfish’’ as specified in paragraph (i.e., it’s closed from January 1 through March 15 through October 18. Lingcod (c)(3)(iv) of this section) is prohibited May 14 and September 3 through may be no smaller than 22 inches (56 seaward of the 20 fm (37 m) depth December 31 in 2013), and from May 15, cm) total length. contour along the mainland coast and 2014 through September 1, 2014 (i.e., * * * * * along islands and offshore seamounts it’s closed from January 1 through May (3) California. Seaward of California, from May 15, 2013 through September 14 and September 2 through December California law provides that, in times 2, 2013 (shoreward of 20 fm is open), 31 in 2014). and areas when the recreational fishery and is closed entirely from January 1, * * * * * is open, there is a 20 fish bag limit for 2013 through May 14, 2013 and from (B) Bag limits, hook limits. In times all species of finfish, within which no September 3, 2013 through December and areas when the recreational season more than 10 fish of any one species 31, 2013; Recreational fishing for for the RCG Complex is open, there is may be taken or possessed by any one groundfish is prohibited seaward of 20 a limit of 2 hooks and 1 line when person. [Note: There are some fm (37 m) and from May 15, 2014 fishing for the RCG complex and exceptions to this rule. The following through September 1, 2014 (shoreward lingcod. The bag limit is 10 RCG groundfish species are not subject to a of 20 fm is open); and is closed entirely Complex fish per day coastwide. bag limit: Petrale sole, Pacific sanddab from January 1, 2014 through May 14, Retention of canary rockfish, yelloweye and starry flounder.] For groundfish 2014 and from September 2, 2014 rockfish, bronzespotted rockfish and species not specifically mentioned in through December 31, 2014. cowcod is prohibited. Within the 10 this paragraph, fishers are subject to the * * * * * RCG Complex fish per day limit, no overall 20-fish bag limit for all species (B) Cowcod conservation areas. The more than 3 may be bocaccio and no of finfish and the depth restrictions at latitude and longitude coordinates of more than 3 may be cabezon. Multi-day paragraph (c)(3)(i) of this section. the Cowcod Conservation Areas (CCAs) limits are authorized by a valid permit Recreational spearfishing for all boundaries are specified at § 660.70. In issued by California and must not federally-managed groundfish, is general, recreational fishing for all exceed the daily limit multiplied by the exempt from closed areas and seasons, groundfish is prohibited within the number of days in the fishing trip. consistent with Title 14 of the California CCAs, except that fishing for ‘‘other (C) Size limits. The following size Code of Regulations. This exemption flatfish’’ is permitted within the CCAs limits apply: cabezon may be no smaller applies only to recreational vessels and as specified in paragraph (c)(3)(iv) of than 15 in (38 cm) total length; and kelp divers provided no other fishing gear, this section. However, recreational and other greenling may be no smaller except spearfishing gear, is on board the fishing for the following species is than 12 in (30 cm) total length. vessel. California state law may provide permitted shoreward of the 20 fm (37 m) (D) Dressing/filleting. Cabezon, kelp regulations similar to Federal depth contour when the season for those greenling, and rock greenling taken in regulations for the following state- species is open south of 34°27′ N. lat.: the recreational fishery may not be managed species: Ocean whitefish, Minor nearshore rockfish, cabezon, kelp filleted at sea. Rockfish skin may not be California sheephead, and all greenlings greenling, lingcod, California removed when filleting or otherwise of the genus Hexagrammos. Kelp scorpionfish, shelf rockfish and ‘‘other dressing rockfish taken in the greenling is the only federally-managed flatfish’’ (subject to gear requirements at recreational fishery. The following

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rockfish filet size limits apply: Brown- Management Area), recreational fishing December 31, in 2013), and from May skinned rockfish fillets may be no for lingcod is open from May 15, 2013 15, 2014 through September 1, 2014 smaller than 6.5 in (16.6 cm). ‘‘Brown- through September 2, 2013 (i.e., it’s (i.e., it’s closed from January 1 through skinned’’ rockfish include the following closed from January 1 through May 14 May 14 and September 2 through species: Brown, calico, copper, gopher, and September 3 through December 31 December 31 in 2014). kelp, olive, speckled, squarespot, and in 2013) and from May 15, 2014 through (2) Between 38°57.50′ N. lat. and yellowtail. September 1, 2014 (i.e., it’s closed from 37°11′ N. lat. (San Francisco * * * * * January 1 through May 14 and Management Area), recreational fishing (iii) * * * September 2 through December 31 in for California scorpionfish is open from (A) * * * 2014). June 1 through December 31 (i.e., it’s (1) Between 42° N. lat. (California/ * * * * * closed from January 1 through May 31). Oregon border) and 40°10′ N. lat. (v) * * * (3) Between 37°11′ N. lat. and 34°27′ (Northern Management Area), (A) * * * N. lat. (Central Management Area), recreational fishing for lingcod is open (1) Between 40°10′ N. lat. and recreational fishing for California from May 15 through October 31 (i.e., 38°57.50′ N. lat. (Mendocino scorpionfish is open from May 1 it’s closed from January 1 through May Management Area), recreational fishing through December 31 (i.e., it’s closed 14 and from November 1 through for California scorpionfish is open from from January 1 through April 30). December 31). May 15 through September 2, 2013 (i.e., * * * * * (2) Between 40°10′ N. lat. and it’s closed from January 1 through May [FR Doc. 2012–31134 Filed 12–28–12; 11:15 am] 38°57.50′ N. lat. (Mendocino 14 and from September 3 through BILLING CODE 3510–22–P

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Part V

The President

Memorandum of December 21, 2012—Federal Employee Pay Schedules and Rates That Are Set by Administrative Discretion Executive Order 13635—Adjustments of Certain Rates of Pay

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Federal Register Presidential Documents Vol. 78, No. 2

Thursday, January 3, 2013

Title 3— Memorandum of December 21, 2012

The President Federal Employee Pay Schedules and Rates That Are Set by Administrative Discretion

Memorandum for the Heads of Executive Departments and Agencies

On December 22, 2010, I issued a memorandum stating that the heads of executive departments and agencies should suspend any increases to any pay systems or pay schedules covering executive branch employees, and should forgo any general increases in covered employees’ rates of pay, that could otherwise take effect as a result of the exercise of administrative discretion during the period beginning on January 1, 2011, and ending on December 31, 2012. In light of section 114 of the Continuing Appropria- tions Resolution, 2013 (Public Law 112–175), I am hereby instructing the heads of executive departments and agencies that they should continue to adhere to this policy through March 27, 2013, the date after which statutory pay adjustments may be made pursuant to section 114 of Public Law 112–175. This memorandum shall be carried out to the extent permitted by law and consistent with executive departments’ and agencies’ legal authorities. This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. The Director of the Office of Personnel Management shall issue any necessary guidance on implementing this memorandum, and is also hereby authorized and directed to publish this memorandum in the Federal Register.

THE WHITE HOUSE, Washington, December 21, 2012

[FR Doc. 2013–00001 Filed 1–2–13; 11:15 am] Billing code 6325–01

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Executive Order 13635 of December 27, 2012 Adjustments of Certain Rates of Pay

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 114(b) of the Con- tinuing Appropriations Resolution, 2013 (Public Law 112–175), which pro- vides that any statutory adjustments to current levels in certain pay schedules for civilian Federal employees may take effect on the first day of the first applicable pay period beginning after the date specified in section 106(3) of Public Law 112–175, it is hereby ordered as follows: Section 1. Statutory Pay Systems. The rates of basic pay or salaries of the statutory pay systems (as defined in 5 U.S.C. 5302(1)), as adjusted under 5 U.S.C. 5303, are set forth on the schedules attached hereto and made a part hereof: (a) The General Schedule (5 U.S.C. 5332(a)) at Schedule 1; (b) The Foreign Service Schedule (22 U.S.C. 3963) at Schedule 2; and (c) The schedules for the Veterans Health Administration of the Department of Veterans Affairs (38 U.S.C. 7306, 7404; section 301(a) of Public Law 102–40) at Schedule 3. Sec. 2. Senior Executive Service. The ranges of rates of basic pay for senior executives in the Senior Executive Service, as established pursuant to 5 U.S.C. 5382, are set forth on Schedule 4 attached hereto and made a part hereof. Sec. 3. Certain Executive, Legislative, and Judicial Salaries. The rates of basic pay or salaries for the following offices and positions are set forth on the schedules attached hereto and made a part hereof: (a) The Executive Schedule (5 U.S.C. 5312–5318) at Schedule 5; (b) The Vice President (3 U.S.C. 104) and the Congress (2 U.S.C. 31) at Schedule 6; and (c) Justices and judges (28 U.S.C. 5, 44(d), 135, 252, and 461(a), and section 140 of Public Law 97–92) at Schedule 7. Sec. 4. Uniformed Services. The rates of monthly basic pay (37 U.S.C. 203(a)) for members of the uniformed services, as adjusted under 37 U.S.C. 1009, and the rate of monthly cadet or midshipman pay (37 U.S.C. 203(c)) are set forth on Schedule 8 attached hereto and made a part hereof. Sec. 5. Locality-Based Comparability Payments. (a) Pursuant to section 5304 of title 5, United States Code, and my authority to implement an alternative level of comparability payments under section 5304a of title 5, United States Code, locality-based comparability payments shall be paid in accordance with Schedule 9 attached hereto and made a part hereof. (b) The Director of the Office of Personnel Management shall take such actions as may be necessary to implement these payments and to publish appropriate notice of such payments in the Federal Register. Sec. 6. Administrative Law Judges. Pursuant to section 5372 of title 5, United States Code, the rates of basic pay for administrative law judges are set forth on Schedule 10 attached hereto and made a part hereof. Sec. 7. Effective Dates. Schedule 8 is effective January 1, 2013. The other schedules contained herein are effective on the first day of the first applicable pay period beginning after the date specified in section 106(3) of Public Law 112–175.

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Sec. 8. Prior Order Superseded. Executive Order 13594 of December 19, 2011, is superseded as of the effective dates specified in section 7 of this order.

THE WHITE HOUSE, Washington, December 27, 2012.

Billing code 3295–F3–P

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[FR Doc. 2013–00002

Filed 1–2–13; 11:15 a.m.] Billing code 6325–01–C

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Reader Aids Federal Register Vol. 78, No. 2 Thursday, January 3, 2013

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JANUARY

Federal Register/Code of Federal Regulations At the end of each month the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. Presidential Documents 26 CFR 3 CFR Executive orders and proclamations 741–6000 Proposed Rules: The United States Government Manual 741–6000 Executive Orders: 1...... 218 Executive Order 13635 Other Services 54...... 218 (superseded by EO 301...... 218 Electronic and on-line services (voice) 741–6020 13594) ...... 649 Privacy Act Compilation 741–6064 Administrative Orders: 741–6043 Public Laws Update Service (numbers, dates, etc.) Memorandums: 33 CFR TTY for the deaf-and-hard-of-hearing 741–6086 Memorandum of 165 ...... 25, 261, 263 December 21, ELECTRONIC RESEARCH 2012 ...... 647 40 CFR World Wide Web 5 CFR Proposed Rules: Full text of the daily Federal Register, CFR and other publications 532...... 1 9...... 277 is located at: www.fdsys.gov. 52...... 37, 45 Federal Register information and research tools, including Public 7 CFR Inspection List, indexes, and links to GPO Access are located at: 63...... 277 www.ofr.gov. 948...... 3 80...... 277 1220...... 1 81...... 51 E-mail Proposed Rules: 85...... 277 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 927...... 34 122...... 277 an open e-mail service that provides subscribers with a digital 1222...... 188, 212 form of the Federal Register Table of Contents. The digital form 123...... 277 412...... 277 of the Federal Register Table of Contents includes HTML and 8 CFR PDF links to the full text of each document. 103...... 536 To join or leave, go to http://listserv.access.gpo.gov and select 44 CFR Online mailing list archives, FEDREGTOC-L, Join or leave the list 212...... 536 (or change settings); then follow the instructions. 67...... 27 PENS (Public Law Electronic Notification Service) is an e-mail 10 CFR service that notifies subscribers of recently enacted laws. Proposed Rules: 47 CFR To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 429...... 152 and select Join or leave the list (or change settings); then follow 430...... 152 73...... 32, 266 the instructions. FEDREGTOC-L and PENS are mailing lists only. We cannot 14 CFR respond to specific inquiries. 50 CFR 39 ...... 5, 7, 9, 15 Reference questions. Send questions and comments about the 17...... 344 Federal Register system to: [email protected] Proposed Rules: 39...... 275 648...... 33 The Federal Register staff cannot interpret specific documents or 660...... 580 regulations. 679...... 267, 270 Reminders. Effective January 1, 2009, the Reminders, including 15 CFR Rules Going Into Effect and Comments Due Next Week, no longer 90...... 255 Proposed Rules: appear in the Reader Aids section of the Federal Register. This 17...... 59, 278 information can be found online at http://www.regulations.gov. 17 CFR 635...... 279 CFR Checklist. Effective January 1, 2009, the CFR Checklist no 23...... 17 660...... 72 longer appears in the Federal Register. This information can be found online at http://bookstore.gpo.gov/. 21 CFR FEDERAL REGISTER PAGES AND DATE, JANUARY 520...... 22 558...... 22 1–254...... 2 Proposed Rules: 255–660...... 3 15...... 277

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text will also be made H.R. 4014/P.L. 112–215 available on the Internet from To amend the Federal Deposit LIST OF PUBLIC LAWS GPO’s Federal Digital System Insurance Act with respect to Public Laws Electronic (FDsys) at http://www.gpo.gov/ information provided to the This is a continuing list of fdsys. Some laws may not yet Bureau of Consumer Financial Notification Service public bills from the current be available. Protection. (Dec. 20, 2012; (PENS) session of Congress which 126 Stat. 1589) have become Federal laws. It H.R. 2467/P.L. 112–212 H.R. 4367/P.L. 112–216 may be used in conjunction Bridgeport Indian Colony Land To amend the Electronic Fund with ‘‘P L U S’’ (Public Laws Trust, Health, and Economic Transfer Act to limit the fee PENS is a free electronic mail Update Service) on 202–741– Development Act of 2012 disclosure requirement for an notification service of newly (Dec. 20, 2012; 126 Stat. 6043. This list is also automatic teller machine to enacted public laws. To available online at http:// 1538) the screen of that machine. subscribe, go to http:// www.archives.gov/federal- H.R. 2838/P.L. 112–213 (Dec. 20, 2012; 126 Stat. listserv.gsa.gov/archives/ register/laws. 1590) Coast Guard and Maritime publaws-l.html The text of laws is not Transportation Act of 2012 S. 1998/P.L. 112–217 (Dec. 20, 2012; 126 Stat. DHS Audit Requirement published in the Federal Note: This service is strictly Register but may be ordered 1540) Target Act of 2012 (Dec. 20, for E-mail notification of new in ‘‘slip law’’ (individual H.R. 3319/P.L. 112–214 2012; 126 Stat. 1591) pamphlet) form from the To allow the Pascua Yaqui S. 3542/P.L. 112–218 laws. The text of laws is not Superintendent of Documents, Tribe to determine the No-Hassle Flying Act of 2012 available through this service. U.S. Government Printing requirements for membership (Dec. 20, 2012; 126 Stat. PENS cannot respond to Office, Washington, DC 20402 in that tribe. (Dec. 20, 2012; 1593) specific inquiries sent to this (phone, 202–512–1808). The 126 Stat. 1588) Last List December 20, 2012 address.

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