Vol. 76 Tuesday, No. 192 October 4, 2011

Pages 61249–61554

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 76, No. 192

Tuesday, October 4, 2011

Agricultural Marketing Service Definition of Qualifying Country End Product, 61282– RULES 61284 Increased Assessment Rates: PROPOSED RULES Oranges and Grapefruit Grown in Lower Rio Grande Defense Federal Acquisition Regulation Supplements: Valley in Texas, 61249–61251 Contracting With the Canadian Commercial Corp., 61296–61298 Agriculture Department See Agricultural Marketing Service Defense Department See Animal and Plant Health Inspection Service See Defense Acquisition Regulations System See Grain Inspection, Packers and Stockyards NOTICES Administration Senior Executive Service Performance Review Board; See Rural Business-Cooperative Service Membership, 61346

Animal and Plant Health Inspection Service Defense Nuclear Facilities Safety Board RULES NOTICES Tuberculosis in Cattle and Bison; State and Zone Meetings; Sunshine Act, 61346–61347 Designations: Minnesota, 61253–61254 Education Department New Mexico, 61251–61253 NOTICES NOTICES Agency Information Collection Activities; Proposals, Importation Authorizations: Submissions, and Approvals, 61347–61348 Dragon Fruit From Thailand, 61340 Meetings: Importation Authorizations: Advisory Commission on Accessible Instructional Fresh Apricot, Sweet Cherry, and Plumcot Fruit from Materials in Postsecondary Education for Students South Africa, 61340–61341 with Disabilities, 61349–61350 Presidents Advisory Commission on Asian Americans Centers for Disease Control and Prevention and Pacific Islanders, 61348–61349 NOTICES Agency Information Collection Activities; Proposals, Employment Standards Administration Submissions, and Approvals, 61362–61364 See Wage and Hour Division Meetings: Advisory Board on Radiation and Worker Health, 61364 Energy Department Centers for Medicare & Medicaid Services See Federal Energy Regulatory Commission PROPOSED RULES NOTICES Liquid-Immersed and Medium- and Low-Voltage Dry-Type Bundled Payments for Care Improvement Initiative, 61365 Distribution Transformers: Meetings: Negotiated Rulemaking Subcommittee/Working Group Advisory Panel on Outreach and Education, 61365–61366 Meeting, 61288–61289 Coast Guard NOTICES RULES Meetings: Safety Zones: Environmental Management Site-Specific Advisory Annual Firework Displays Within the Captain of the Port, Board, Paducah, 61350 Puget Sound Area of Responsibility, 61263–61266 Response to Defense Nuclear Facilities Safety Board IJSBA World Finals; Lower Colorado River, Lake Havasu, Request for Clarification: Arizona, 61261–61263 Safety Culture at the Waste Treatment and Monte Foundation Fireworks Extravaganza, Aptos, CA, Immobilization Plant, 61350–61351 61259–61261 NOTICES Environmental Protection Agency Agency Information Collection Activities; Proposals, RULES Submissions, and Approvals, 61369–61370 Protection of Stratospheric Ozone: Meetings: Significant New Alternatives Policy Program, 61269– Great Lakes Pilotage Advisory Committee, 61370–61371 61278 PROPOSED RULES Commerce Department Approvals and Promulgations of Air Quality See Foreign-Trade Zones Board Implementation Plans: See International Trade Administration West Virginia; Ohio; Determination of Clean Data for See National Oceanic and Atmospheric Administration 2006 24-Hour Fine Particulate Standard for Steubenville-Weirton Area, 61291–61293 Defense Acquisition Regulations System Mandatory Reporting of Greenhouse Gases: RULES Electronics Manufacturing and Petroleum and Natural Defense Federal Acquisition Regulation Supplements: Gas SystemsTechnical Revisions; Extension of Public Defense Cargo Riding Gang Member, 61279–61282 Comment Period, 61293–61294

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NOTICES Federal Energy Regulatory Commission Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Combined Filings, 61351–61353 Fuel and Fuel Additives, 61354–61355 Petitions for Rate Approvals: Requests for Nominations: Acadian Gas Pipeline System, 61353–61354 National Drinking Water Advisory Council, 61355 Federal Highway Administration Executive Office of the President NOTICES See Trade Representative, Office of United States Environmental Impact Statements; Availability, etc.: Federal Aviation Administration Walton and Bay Counties, FL, 61475–61476 RULES Final Federal Agency Actions on Proposed Highway in Airworthiness Directives: Utah, 61476 Honeywell International Inc. TPE331 Model Turboprop Engines With Certain Dixie Aerospace, LLC Main Federal Railroad Administration Shaft Bearings, 61255–61257 NOTICES Amendment to Description of VOR Federal Airway V–299: Petitions for Waivers of Compliance, 61476–61477 California, 61257–61258 Revisions of Class E Airspace: Federal Reserve System Allakaket, AK, 61258–61259 NOTICES NOTICES Formations of, Acquisitions by, and Mergers of Bank Petitions for Exemption; Summaries of Petitions Received, Holding Companies, 61359–61360 61473–61474 Waivers of Aeronautical Land-Use Assurances: Fish and Wildlife Service Indianapolis International Airport, Indianapolis, IN, PROPOSED RULES 61474–61475 Endangered and Threatened Wildlife and Plants: 12-Month Finding on a Petition To List Calopogon Federal Communications Commission oklahomensis, 61307–61321 RULES 12-Month Finding on Petition To List Amargosa River Agency Information Collection Activities; Proposals, Population of Mojave Fringe-toed Lizard, 61321– Submissions, and Approvals: 61330 Communications Common Carriers; Reporting and Record 12-Month Finding on Petition To List Lake Sammamish Keeping Requirements, 61279 Kokanee Population of Oncorhynchus nerka, 61298– PROPOSED RULES 61307 Programmatic Environmental Assessment, 61295–61296 90-Day Finding on a Petition To List 10 Subspecies of NOTICES Great Basin Butterflies as Threatened or Endangered Agency Information Collection Activities; Proposals, With Critical Habitat, 61532–61554 Submissions, and Approvals, 61356–61359 Endangered Status and Designation of Critical Habitat for Spikedace and Loach Minnow, 61330–61339 Federal Deposit Insurance Corporation Endangered Status for the Alabama Pearlshell, et al., NOTICES With Critical Habitat, 61482–61529 Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 61359 Environmental Assessments; Availability, etc.: Federal Election Commission Dungeness National Wildlife Refuge Comprehensive Conservation Plan, Clallam County, WA, 61378– RULES 61379 When Certain Independent Expenditures Are Publicly Final Recovery Plans: Disseminated for Reporting Purposes: Bexar County Karst Invertebrates, Texas, 61379 Interpretive Rule, 61254–61255 Federal Emergency Management Agency Food and Drug Administration RULES NOTICES Final Flood Elevation Determinations, 61279 Food and Drug Administration Transparency Initiative; PROPOSED RULES Availability: Flood Elevation Determinations, 61295 Draft Proposals To Increase Transparency by Promoting NOTICES Greater Access to the Agency’s Compliance and All-Hazard Position Task Books for Type 3 Incident Enforcement Data, 61366–61367 Management Teams, 61371–61372 Medical Device User Fee and Modernization Act: Emergency and Related Determinations: Web Site Location of Fiscal Year 2012 Proposed Connecticut, 61373–61374 Guidance Development, 61367–61368 Massachusetts, 61374 Meetings: New Hampshire, 61372–61373 International Conference on Harmonization Steering New Jersey, 61373 Committee and Expert Working Group Meetings, Pennsylvania, 61372 61368–61369 Major Disaster and Related Determinations: New Jersey, 61374–61375 Foreign-Trade Zones Board Vermont, 61375 NOTICES NIMS Public Works Resources: Typed Resource Definitions, Temporary/Interim Manufacturing Authority; Approvals: 61376 Foreign-Trade Zone 72, Brevini Wind USA, Inc., 61342

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General Services Administration NOTICES NOTICES Initial Determinations: Environmental Impact Statements; Availability, etc.: Revising List of Products Requiring Federal Contractor Foreign Affairs Security Training Center; Public Scoping Certification as to Forced/Indentured Child Labor, Meetings, 61360 61384–61386

Grain Inspection, Packers and Stockyards Administration Labor Statistics Bureau PROPOSED RULES NOTICES United States Standards for Barley, 61287 Meetings: Data Users Advisory Committee, 61386 Health and Human Services Department See Centers for Disease Control and Prevention Land Management Bureau See Centers for Medicare & Medicaid Services NOTICES See Food and Drug Administration Meetings: PROPOSED RULES Las Cruces District Resource Advisory Council, 61379– Designation of Medically Underserved Populations and 61380 Health Professional Shortage Areas: Proposed Reinstatement of Terminated Oil and Gas Lease Meetings; Negotiated Rulemaking Committee, 61294– WYW163268, Wyoming, 61380 61295 Proposed Reinstatement of Terminated Oil and Gas Lease NOTICES WYW163269,Wyoming, 61380 Agency Information Collection Activities; Proposals, Proposed Reinstatement of Terminated Oil and Gas Lease Submissions, and Approvals, 61360–61361 WYW163275: Findings of Research Misconduct, 61361–61362 Wyoming, 61380–61381 Proposed Reinstatement of Terminated Oil and Gas Lease Homeland Security Department WYW163276,Wyoming, 61381 See Coast Guard Proposed Reinstatement of Terminated Oil and Gas Lease See Federal Emergency Management Agency WYW163277, 61381 PROPOSED RULES Proposed Reinstatement of Terminated Oil and Gas Lease Treatment of Aliens Whose Employment Creation WYW163278, Wyoming, 61381–61382 Immigrant (EB–5) Petitions Were Approved After Proposed Reinstatement of Terminated Oil and Gas Lease January 1, 1995 and Before August 31, 1998; WYW163280, Wyoming, 61382 Correction, 61288 Millennium Challenge Corporation Housing and Urban Development Department NOTICES NOTICES Determination Criteria and Methodology: Agency Information Collection Activities; Proposals, Eligibility of Candidate Countries for Assistance in Fiscal Submissions, and Approvals: Year 2011, 61386–61391 Tribal Colleges and University Programs, 61376–61377 Buy American Exceptions Under the American Recovery National Highway Traffic Safety Administration and Reinvestment Act of 2009, 61377–61378 NOTICES Petitions for Exemptions From Vehicle Theft Prevention Interior Department Standards: See Fish and Wildlife Service Volkswagen Group of America, 61477–61478 See Land Management Bureau See National Park Service National Oceanic and Atmospheric Administration See Reclamation Bureau RULES Accountability Measures and Reduced Season for the South International Trade Administration Atlantic Recreational Sector: NOTICES Golden Tilefish for the 2011 Fishing Year, 61284–61285 Antidumping Duty Administrative Reviews; Amended Fisheries of Caribbean, Gulf of Mexico, and South Atlantic: Final Results: South Atlantic Snapper-Grouper Fishery; 2011–2012 Magnesium Metal From the Russian Federation, 61342– Accountability Measures for Recreational Black Sea 61343 Bass, 61285–61286 Antidumping Duty Orders; Final Results of the Expedited NOTICES Third Five-Year Sunset Reviews: Endangered and Threatened Species: Certain Helical Spring Lock Washers From Taiwan and Take of Anadromous Fish, 61344–61345 the People’s Republic of China, 61343–61344 Meetings: New England Fishery Management Council, 61345 Justice Department Permits: NOTICES Marine Mammals; File No. 16094, 61345–61346 Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Park Service COPS Application Package, 61383–61384 RULES Lodgings of Consent Decrees Under Clean Water Act, 61384 Special Regulations for Bicycle Routes, Fishing and Vessels: Grand Teton National Park, 61266–61269 Labor Department NOTICES See Labor Statistics Bureau National Register of Historic Places; Pending Nominations See Wage and Hour Division and Related Actions, 61382

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Nuclear Regulatory Commission NASDAQ Stock Market LLC, 61441–61444 NOTICES Nasdaq Stock Market LLC, 61416–61419 Agency Information Collection Activities; Proposals, National Stock Exchange, Inc., 61450–61453 Submissions, and Approvals, 61391 New York Stock Exchange LLC, 61457–61460 Applications and Amendments to Facility Operating NYSE Amex LLC, 61422–61425, 61469–61472 Licenses Involving No Significant Hazards NYSE Arca, Inc., 61411–61413, 61463–61466 Considerations, 61391–61401 Atomic Safety and Licensing Board Hearings: State Department Nuclear Innovation North America LLC, South Texas NOTICES Project Units 3 and 4, 61401–61402 Culturally Significant Objects Imported for Exhibition Draft Fiscal Year 2012–2016 Strategic Plan; Availability, Determinations: 61402–61403 The Game of Kings—Medieval Ivory Chessmen from the Meetings; Sunshine Act, 61403 Isle of Lewis, 61472 Determinations: Office of United States Trade Representative Foreign Military Financing for Lebanon, 61472 See Trade Representative, Office of United States Trade Representative, Office of United States Postal Regulatory Commission NOTICES NOTICES Revised Fiscal Year 2011 Tariff-rate Quota Allocations for Post Office Closings, 61403–61406 Refined Sugar, 61472–61473 Postal Service Transportation Department NOTICES See Federal Aviation Administration Meetings; Sunshine Act, 61406 See Federal Highway Administration Presidio Trust See Federal Railroad Administration NOTICES See National Highway Traffic Safety Administration Meetings: Board of Directors, 61406 Treasury Department See Public Debt Bureau Public Debt Bureau NOTICES NOTICES Meetings: Agency Information Collection Activities; Proposals, President’s Council on Jobs and Competitiveness, 61478– Submissions, and Approvals, 61479 61479

Reclamation Bureau Wage and Hour Division NOTICES PROPOSED RULES Meetings: Child Labor Violations—Civil Money Penalties: Colorado River Basin Salinity Control Advisory Council, Child Labor Regulations, Orders and Statements of 61382–61383 Interpretation; Public Hearing, 61289–61291

Rural Business-Cooperative Service NOTICES Separate Parts In This Issue Maximum Loan Amount Available for B and I Guaranteed Loans in Fiscal Year 2012, 61341–61342 Part II Interior Department, Fish and Wildlife Service, 61482– Securities and Exchange Commission 61529 NOTICES Meetings; Sunshine Act, 61406 Part III Self-Regulatory Organizations: Interior Department, Fish and Wildlife Service, 61532– Municipal Securities Rulemaking Board, 61407–61411 61554 Self-Regulatory Organizations; Proposed Rule Changes: BATS Exchange, Inc., 61432–61435, 61466–61469 C2 Options Exchange, Inc., 61453–61457 Chicago Board Options Exchange, Inc., 61447–61450 Reader Aids Chicago Stock Exchange, Inc., 61460–61463 Consult the Reader Aids section at the end of this page for EDGA Exchange, Inc., 61425–61428 phone numbers, online resources, finding aids, reminders, EDGX Exchange, Inc., 61444–61447 and notice of recently enacted public laws. Financial Industry Regulatory Authority, Inc., 61429– To subscribe to the Federal Register Table of Contents 61432 LISTSERV electronic mailing list, go to http:// International Securities Exchange, LLC, 61438–61441 listserv.access.gpo.gov and select Online mailing list NASDAQ OMX BX, Inc., 61435–61438 archives, FEDREGTOC-L, Join or leave the list (or change NASDAQ OMX PHLX LLC, 61413–61416, 61419–61422 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.

7 CFR 906...... 61249 Proposed Rules: 810...... 61287 8 CFR Proposed Rules: 216...... 61288 245...... 61288 9 CFR 77 (2 documents) ...... 61251, 61253 10 CFR Proposed Rules: 431...... 61288 11 CFR 104...... 61254 109...... 61254 14 CFR 39...... 61255 71 (2 documents) ...... 61257, 61258 29 CFR Proposed Rules: 570...... 61289 579...... 61289 33 CFR 165 (3 documents) ...... 61259, 61261, 61263 36 CFR 7...... 61266 40 CFR 82...... 61269 Proposed Rules: 52...... 61291 98...... 61293 42 CFR Proposed Rules: 5...... 61294 44 CFR 67...... 61279 Proposed Rules: 67...... 61295 47 CFR 32...... 61279 52...... 61279 61...... 61279 64...... 61279 69...... 61279 Proposed Rules: 1...... 61295 48 CFR 212...... 61279 247...... 61279 252 (2 documents) ...... 61279, 61282 Proposed Rules: 215...... 61296 225...... 61296 252...... 61296 50 CFR 622 (2 documents) ...... 61284, 61285 Proposed Rules: 17 (6 documents) ...... 61298, 61307, 61321, 61330, 61482, 61532

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Rules and Regulations Federal Register Vol. 76, No. 192

Tuesday, October 4, 2011

This section of the FEDERAL REGISTER Avenue, SW., STOP 0237, Washington, The Texas orange and grapefruit contains regulatory documents having general DC 20250–0237; Telephone: (202) 720– marketing order provides authority for applicability and legal effect, most of which 2491, Fax: (202) 720–8938, or E-mail: the Committee, with the approval of are keyed to and codified in the Code of [email protected]. USDA, to formulate an annual budget of Federal Regulations, which is published under expenses and collect assessments from 50 titles pursuant to 44 U.S.C. 1510. SUPPLEMENTARY INFORMATION: This rule handlers to administer the program. The is issued under Marketing Agreement members of the Committee are The Code of Federal Regulations is sold by and Order No. 906, as amended (7 CFR producers and handlers of Texas the Superintendent of Documents. Prices of part 906), regulating the handling of new books are listed in the first FEDERAL oranges and grapefruit. They are oranges and grapefruit grown in the REGISTER issue of each week. familiar with the Committee’s needs and Lower Rio Grande Valley in Texas, with the costs for goods and services in hereinafter referred to as the ‘‘order.’’ their local area and are thus in a The order is effective under the DEPARTMENT OF AGRICULTURE position to formulate an appropriate Agricultural Marketing Agreement Act budget and assessment rate. The Agricultural Marketing Service of 1937, as amended (7 U.S.C. 601–674), assessment rate is formulated and hereinafter referred to as the ‘‘Act.’’ discussed in a public meeting. Thus, all 7 CFR Part 906 The Department of Agriculture directly affected persons have an [Doc. No. AMS–FV–11–0057; FV11–906–1 (USDA) is issuing this rule in opportunity to participate and provide FR] conformance with Executive Order input. 12866. For the 2004–05 and subsequent fiscal Oranges and Grapefruit Grown in This rule has been reviewed under periods, the Committee recommended, Lower Rio Grande Valley in Texas; Executive Order 12988, Civil Justice and USDA approved, an assessment rate Increased Assessment Rate Reform. Under the marketing order now that would continue in effect from fiscal AGENCY: Agricultural Marketing Service, in effect, orange and grapefruit handlers period to fiscal period unless modified, USDA. in the Lower Rio Grande Valley are suspended, or terminated by USDA subject to assessments. Funds to ACTION: Final rule. upon recommendation and information administer the order are derived from submitted by the Committee or other SUMMARY: This rule increases the such assessments. It is intended that the information available to USDA. assessment rate established for the assessment rate as issued herein will be The Committee met on June 9, 2011, Texas Valley Citrus Committee applicable to all assessable oranges and and unanimously recommended 2011– (Committee) for the 2011–12 and grapefruit beginning on August 1, 2011, 12 expenditures of $1,224,037 and an subsequent fiscal periods from $0.12 to and continue until amended, assessment rate of $0.14 per 7/10-bushel $0.14 per 7/10-bushel carton or suspended, or terminated. carton or equivalent of oranges and equivalent of oranges and grapefruit The Act provides that administrative grapefruit handled. In comparison, last handled. The Committee locally proceedings must be exhausted before year’s budgeted expenditures were administers the marketing order which parties may file suit in court. Under $1,109,037. The assessment rate of $0.14 regulates the handling of oranges and section 608c(15)(A) of the Act, any is $0.02 higher than the rate currently in grapefruit grown in the Lower Rio handler subject to an order may file effect. The Committee recommended a Grande Valley in Texas. Assessments with USDA a petition stating that the higher assessment rate due to an upon orange and grapefruit handlers are order, any provision of the order, or any expected smaller crop and an increase used by the Committee to fund obligation imposed in connection with in budgeted expenses. Budgeted reasonable and necessary expenses of the order is not in accordance with law expenses were increased to provide the program. The fiscal period began on and request a modification of the order additional funding for the Committee’s August 1 and ends July 31. The or to be exempted therefrom. Such Mexican fruit fly program, and also to assessment rate will remain in effect handler is afforded the opportunity for fund a Federal Agriculture Improvement indefinitely unless modified, a hearing on the petition. After the Reform (FAIR) review analysis to be suspended, or terminated. hearing, USDA would rule on the conducted next fiscal period. In 1996, DATES: Effective Date: October 5, 2011. petition. The Act provides that the Congress mandated that every five years FOR FURTHER INFORMATION CONTACT: district court of the United States in any commodity boards established under Belinda G. Garza, Regional Manager, district in which the handler is an the oversight of the Secretary of Texas Marketing Field Office, Marketing inhabitant, or has his or her principal Agriculture pursuant to a commodity Order and Agreement Division, Fruit place of business, has jurisdiction to promotion law should fund an and Vegetable Programs, AMS, USDA; review USDA’s ruling on the petition, independent evaluation of the Telephone: (956) 632–5330, Fax: (956) provided an action is filed not later than effectiveness of their generic promotion 632–5358, or E-mail: 20 days after the date of the entry of the program, which is now commonly [email protected]. ruling. known as a FAIR review. Small businesses may request This rule increases the assessment The Committee projected a reduced information on complying with this rate established for the Committee for crop of 8,750,000 7/10-bushel carton regulation by contacting Laurel May, the 2011–12 and subsequent fiscal equivalents, which would be 289,137 Marketing Order Administration periods from $0.12 to $0.14 per 7/10- 7/10-bushel carton equivalents less than Division, Fruit and Vegetable Programs, bushel carton or equivalent of oranges the 9,039,137 7/10-bushel carton AMS, USDA, 1400 Independence and grapefruit handled. equivalents handled during the 2010–11

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fiscal period. Furthermore, due to severe needed. Further rulemaking will be assessment income which should be cuts in the State of Texas’ budget, the undertaken as necessary. The sufficient to meet anticipated expenses. Texas Department of Agriculture Committee’s 2011–12 budget and those The major expenditures requested the citrus industry’s for subsequent fiscal periods will be recommended by the Committee for the assistance in funding a Mexican fruit fly reviewed and, as appropriate, approved 2011–12 fiscal period include $479,000 trapping program, which is essential to by USDA. for the Mexican Fruit Fly support, the industry’s well-being. Based on a trapping, and bait spray programs; decreased crop estimate and anticipated Final Regulatory Flexibility Analysis $425,000 for promotion; and $250,737 expenditure increases, the Committee Pursuant to requirements set forth in for management, administration, and unanimously recommended that the the Regulatory Flexibility Act (RFA) compliance oversight. Major assessment rate of $0.12 currently in (5 U.S.C. 601–612), the Agricultural expenditures for these items in 2010–11 effect be increased by $0.02. Income Marketing Service (AMS) has were $229,000, $600,000, and $246,737, derived from handler assessments and considered the economic impact of this respectively. interest should be adequate to cover rule on small entities. Accordingly, The increased assessment rate budgeted expenses. AMS has prepared this final regulatory recommended by the Committee was The major expenditures flexibility analysis. due to a reduced crop estimate (8.75 recommended by the Committee for the The purpose of the RFA is to fit million 7/10-bushel carton equivalents 2011–12 fiscal period include $479,000 regulatory actions to the scale of of oranges and grapefruit), and an for the Mexican fruit fly support, business subject to such actions in order increase in budgeted expenditures to trapping, and bait spray programs; that small businesses will not be unduly provide additional funding for the $425,000 for promotion; and $250,737 or disproportionately burdened. Mexican fruit fly program and a FAIR for management, administration, and Marketing orders issued pursuant to the analysis. With anticipated assessment compliance oversight. In comparison, Act, and the rules issued thereunder, are income of $1,225,000, and anticipated major expenditures for these items in unique in that they are brought about expenditures of $1,224,037, funds in the 2010–11 (last fiscal period) were through group action of essentially reserve would be kept within the $229,000, $600,000, and $246,737, small entities acting on their own maximum of one fiscal period’s respectively. behalf. expenses permitted by the order The assessment rate recommended by (§ 906.35). There are approximately 177 the Committee was derived by dividing In arriving at its recommended producers of oranges and grapefruit in anticipated expenditures by estimated budget, the Committee considered the production area and approximately shipments of Texas oranges and alternative expenditure levels based 12 handlers subject to regulation under grapefruit. As mentioned earlier, orange upon the relative need of the Mexican the marketing order. Small agricultural and grapefruit shipments for the 2011– fruit fly trapping and promotion producers are defined by the Small 12 fiscal period are estimated at 8.75 programs to the Texas citrus industry. million 7/10-bushel carton equivalents, Business Administration (SBA) (13 CFR The assessment rate of $0.14 per 7/10- which should provide $1,225,000 in 121.201) as those having annual receipts bushel carton equivalent was then assessment income. Income generated less than $750,000, and small determined by dividing the total through the $0.14 assessment rate and agricultural service firms are defined as recommended budget by the quantity of interest would be more than sufficient those whose annual receipts are less assessable oranges and grapefruit, to meet anticipated expenses than $7,000,000. estimated at 8.75 million 7/10 bushel ($1,224,037). Reserve funds at the end of An updated Texas citrus industry carton equivalents for the 2011–12 fiscal 2011–12 are projected at $283,774, well profile shows that 6 of the 12 handlers period. Considering assessment revenue below one fiscal period’s expenses, (50 percent) would be considered large and interest, total revenue would be which would be within the maximum businesses under SBA’s definition, and approximately $2,463 above the reserve amount permitted under the the remaining 6 handlers (50 percent) anticipated expenses, which the order (§ 906.35). would be considered small businesses. Committee determined to be acceptable. The assessment rate established in Of the approximately 177 producers A review of historical information this rule will continue in effect within the production area, few have from recent seasons (2008–2010) and indefinitely unless modified, sufficient acreage to generate sales in preliminary information pertaining to suspended, or terminated by USDA excess of $750,000. Thus, half of the the current fiscal period indicates that upon recommendation and information handlers and the majority of producers the season average packinghouse door submitted by the Committee or other of Texas oranges and grapefruit may be price for the 2011–12 fiscal period could available information. classified as small entities. likely range from $6.24 to $8.23 per Although this assessment rate will be This rule increases the assessment 7/10-bushel carton equivalent of Texas in effect for an indefinite period, the rate established for the Committee and oranges, and from $10.90 to $15.55 for Committee will continue to meet prior collected from handlers for the 2011–12 Texas grapefruit. Therefore, the to or during each fiscal period to and subsequent fiscal periods from estimated assessment revenue for the recommend a budget of expenses and $0.12 to $0.14 per 7/10-bushel carton or 2011–12 fiscal period as a percentage of consider recommendations for equivalent of oranges and grapefruit. total grower (packinghouse door) modification of the assessment rate. The The Committee unanimously revenue could range between 1.7 and dates and times of Committee meetings recommended 2011–12 expenditures of 2.2 percent for oranges and between 0.9 are available from the Committee or $1,224,037 and an assessment rate of and 1.3 percent for grapefruit. USDA. Committee meetings are open to $0.14 per 7/10-bushel carton or This action increases the assessment the public and interested persons may equivalent handled. The quantity of obligation imposed on handlers. While express their views at these meetings. assessable oranges and grapefruit for the assessments impose some additional USDA will evaluate Committee 2011–12 fiscal period is estimated at costs on handlers, the costs are minimal recommendations and other available 8.75 million 7/10-bushel carton and uniform on all handlers. Some of information to determine whether equivalents. Thus, the $0.14 assessment the additional costs may be passed on modification of the assessment rate is rate should provide $1,225,000 in to producers. However, these costs are

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offset by the benefits derived by the information and recommendation DEPARTMENT OF AGRICULTURE operation of the order. In addition, the submitted by the Committee and other Committee’s meeting was widely available information, it is hereby found Animal and Plant Health Inspection publicized throughout the Texas orange that this rule, as hereinafter set forth, Service and grapefruit industry and all will tend to effectuate the declared interested persons were invited to policy of the Act. 9 CFR Part 77 attend the meeting and participate in [Docket No. APHIS–2011–0093] Committee deliberations on all issues. Pursuant to 5 U.S.C. 553, it is also found and determined that good cause Like all Committee meetings, the June 9, Tuberculosis in Cattle and Bison; State exists for not postponing the effective 2011, meeting was a public meeting and and Zone Designations; New Mexico all entities, both large and small, were date of this rule until 30 days after able to express views on this issue. publication in the Federal Register AGENCY: Animal and Plant Health In accordance with the Paperwork because: (1) The 2011–12 fiscal period Inspection Service, USDA. Reduction Act of 1995, (44 U.S.C. began on August 1, 2011, and the ACTION: Interim rule and request for chapter 35), the order’s information marketing order requires that the rate of comments. collection requirements have been assessment for each fiscal period apply previously approved by the Office of to all assessable oranges and grapefruit SUMMARY: We are amending the bovine Management and Budget (OMB) and handled during such fiscal period; (2) tuberculosis regulations regarding State assigned OMB No. 0581–0189 (Generic the Committee needs to have sufficient and zone classifications by reclassifying a zone in New Mexico consisting of Fruit Crops—Mandatory). No changes in funds to pay its expenses, which are Curry and Roosevelt Counties. We have those requirements as a result of this incurred on a continuous basis; and (3) action are necessary. Should any determined that the zone meets the handlers are aware of this rule which criteria for accredited-free status. Since changes become necessary, they would was unanimously recommended by the be submitted to OMB for approval. the remainder of the State is already Committee at a public meeting and is This rule imposes no additional classified as accredited free, the entire reporting or recordkeeping requirements similar to other assessment rate actions State of New Mexico is now classified on either small or large Texas orange issued in past years. Also, a 10-day as accredited free. This action relieves and grapefruit handlers. As with all comment period was provided for in the certain restrictions on the interstate Federal marketing order programs, proposed rule. movement of cattle and bison from reports and forms are periodically List of Subjects in 7 CFR Part 906 Curry and Roosevelt Counties in New reviewed to reduce information Mexico. requirements and duplication by Grapefruit, Marketing agreements, DATES: This interim rule is effective industry and public sector agencies. As Oranges, Reporting and recordkeeping October 4, 2011. We will consider all noted in the initial regulatory flexibility requirements. comments that we receive on or before analysis, USDA has not identified any For the reasons set forth in the December 5, 2011. relevant Federal rules that duplicate, preamble, 7 CFR part 906 is amended as ADDRESSES: You may submit comments overlap, or conflict with this final rule. AMS is committed to complying with follows: by either of the following methods: • Federal eRulemaking Portal: Go to the E-Government Act, to promote the PART 906—ORANGES AND http://www.regulations.gov/ use of the Internet and other GRAPEFRUIT GROWN IN LOWER RIO #!documentDetail;D=APHIS-2011-0093- information technologies to provide 0001. increased opportunities for citizen GRANDE VALLEY IN TEXAS • Postal Mail/Commercial Delivery: access to Government information and Send your comment to Docket No. services, and for other purposes. ■ 1. The authority citation for 7 CFR A proposed rule concerning this part 906 continues to read as follows: APHIS–2011–0093, Regulatory Analysis and Development, PPD, APHIS, Station action was published in the Federal Authority: 7 U.S.C. 601–674. Register on August 10, 2011 (76 FR 3A–03.8, 4700 River Road Unit 118, 49381). Copies of the proposed rule ■ 2. Section 906.235 is revised to read Riverdale, MD 20737–1238. Supporting documents and any were also mailed or sent via facsimile to as follows: comments we receive on this docket all orange and grapefruit handlers. § 906.235 Assessment rate. may be viewed at http:// Finally, the proposal was made www.regulations.gov/ available through the Internet by USDA On and after August 1, 2011, an #!docketDetail;D=APHIS-2011-0093 or and the Office of the Federal Register. A assessment rate of $0.14 per 7/10-bushel in our reading room, which is located in 10-day comment period ending August carton or equivalent is established for room 1141 of the USDA South Building, 22, 2011, was provided for interested oranges and grapefruit grown in the 14th Street and Independence Avenue, persons to respond to the proposal. No Lower Rio Grande Valley in Texas. SW., Washington, DC. Normal reading comments were received. A small business guide on complying Dated: September 29, 2011. room hours are 8 a.m. to 4:30 p.m., with fruit, vegetable, and specialty crop David R. Shipman, Monday through Friday, except marketing agreements and orders may Acting Administrator, Agricultural Marketing holidays. To be sure someone is there to be viewed at: http://www.ams.usda.gov/ Service. help you, please call (202) 690–2817 before coming. MarketingOrdersSmallBusinessGuide. [FR Doc. 2011–25493 Filed 10–3–11; 8:45 am] FOR FURTHER INFORMATION CONTACT: Dr. Any questions about the compliance BILLING CODE 3410–02–P guide should be sent to Laurel May at Kathleen Orloski, Senior Staff the previously mentioned address in the Veterinarian, Ruminant Health FOR FURTHER INFORMATION CONTACT Programs, Veterinary Services, APHIS, section. 2150 Centre Avenue, Building B3E20, After consideration of all relevant Fort Collins, CO 80526; (970) 494–7221. material presented, including the SUPPLEMENTARY INFORMATION:

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Background Docket No. APHIS–2008–0124), we After the comment period closes, we Bovine tuberculosis is a contagious amended the tuberculosis regulations will publish another document in the and infectious granulomatous disease for cattle and bison by dividing New Federal Register. The document will caused by the bacterium Mycobacterium Mexico into two zones for tuberculosis. include a discussion of any comments bovis. Although commonly defined as a At the time, the entire State was we receive and any amendments we are chronic debilitating disease, bovine classified as modified accredited making to the rule. tuberculosis can occasionally assume an advanced. The interim rule established all of New Mexico except Curry and Executive Order 12866 and Regulatory acute, rapidly progressive course. While Roosevelt Counties as an accredited-free Flexibility Act any body tissue can be affected, lesions zone. The area comprising Curry and are most frequently observed in the This interim rule is subject to Roosevelt Counties, along New Mexico’s lymph nodes, lungs, intestines, liver, Executive Order 12866. However, for eastern border with Texas, was spleen, pleura, and peritoneum. this action, the Office of Management recognized as a separate zone that Although cattle are considered to be the and Budget has waived its review under continued to have modified accredited true hosts of M. bovis, the disease has Executive Order 12866. advanced status. In accordance with the Regulatory been reported in several other species of We have received from the State of both domestic and nondomestic Flexibility Act, we have analyzed the New Mexico a request to reclassify the potential economic effects of this action animals, as well as in humans. modified accredited advanced zone. At the beginning of the past century, on small entities. The analysis is Based on the findings of a review of the summarized below. The full analysis tuberculosis caused more losses of tuberculosis eradication program in livestock than all other livestock may be viewed on the Regulations.gov New Mexico conducted during May Web site (see ADDRESSES above for diseases combined. This prompted the through July of 2011, APHIS has establishment in the United States of the instructions for accessing determined that the zone meets the Regulations.gov) or obtained from the National Cooperative State/Federal criteria for advancement of status Bovine Tuberculosis Eradication person listed under FOR FURTHER contained in the regulations. INFORMATION CONTACT. Program for tuberculosis in livestock. State animal health officials in New In carrying out the national Mexico have demonstrated that the Advancing the status of the former eradication program, the Animal and State enforces and complies with the modified accredited advanced zone in Plant Health Inspection Service (APHIS) provisions of the UMR. The State of New Mexico will reduce the interstate issues and enforces regulations. The New Mexico has demonstrated that the movement restrictions for cattle and regulations require the testing of cattle modified accredited advanced zone has bison originating from Curry and and bison for tuberculosis, define the zero percent prevalence of cattle and Roosevelt Counties. Herd owners in the Federal tuberculosis status levels for bison herds affected with tuberculosis area will no longer have to test their States or zones (accredited-free, and has had no findings of tuberculosis cattle and bison for bovine tuberculosis modified accredited advanced, modified in any cattle or bison in the zone since in order to move them interstate. accredited, accreditation preparatory, the last affected herd completed a test- Tuberculosis testing, including and nonaccredited), provide the criteria and-remove herd plan and was released veterinary fees, costs about $10 to $15 for attaining and maintaining those from quarantine in July 2009. Therefore, per head. The annual cost savings status levels, and contain testing and New Mexico has demonstrated that the associated with the removal of those movement requirements for cattle and zone within the State previously tests for the 1,621 herds in the affected bison leaving States or zones of a classified as modified accredited area are expected to be between particular status level. These regulations advanced meets the criteria for $662,000 and $993,000, or from $408 to are contained in 9 CFR part 77 and in accredited-free status as set forth in the $613 per herd on average. In addition, the Bovine Tuberculosis Eradication definition of accredited-free State or tuberculosis testing costs represent no Uniform Methods and Rules, 1999 zone in § 77.5 of the regulations. more than about 1.7 percent of the (UMR), which is incorporated by Based on our evaluation of New average value of the cattle tested ($870 reference into the regulations. Mexico’s request, we are classifying the per head on January 1, 2010). The status of a State or zone is based zone composed of Curry and Roosevelt Under these circumstances, the on its prevalence of tuberculosis in Counties as accredited free, which Administrator of the Animal and Plant cattle and bison, the effectiveness of the results in the entire State of New Health Inspection Service has State’s tuberculosis eradication Mexico having an accredited-free determined that this action will not program, and the degree of the State’s classification. have a significant economic impact on compliance with standards for cattle a substantial number of small entities. Immediate Action and bison contained in the UMR. The Executive Order 12372 regulations provide that a State may Immediate action is warranted to request partitioning into specific relieve restrictions on the interstate This program/activity is listed in the geographic regions or zones with movement of cattle and bison from Catalog of Federal Domestic Assistance different status designations (commonly Curry and Roosevelt Counties in New under No. 10.025 and is subject to referred to as split-State status) if bovine Mexico. Under these circumstances, the Executive Order 12372, which requires tuberculosis is detected in a portion of Administrator has determined that prior intergovernmental consultation with a State and the State demonstrates that notice and opportunity for public State and local officials. (See 7 CFR part it meets certain criteria with regard to comment are contrary to the public 3015, subpart V.) zone classification. interest and that there is good cause Executive Order 12988 under 5 U.S.C. 553 for making this Request for Advancement of Modified action effective less than 30 days after This rule has been reviewed under Accredited Advanced Zone publication in the Federal Register. Executive Order 12988, Civil Justice In an interim rule effective and We will consider comments we Reform. This rule has no retroactive published in the Federal Register on receive during the comment period for effect and does not require March 23, 2009 (74 FR 12055–12058, this interim rule (see DATES above). administrative proceedings before

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parties may file suit in court challenging the remainder of the State is already establishment in the United States of the this rule. classified as accredited free, the entire National Cooperative State/Federal State of Minnesota is now classified as Bovine Tuberculosis Eradication Paperwork Reduction Act accredited free. This action relieves Program for tuberculosis in livestock. This rule contains no new certain restrictions on the interstate In carrying out the national information collection or recordkeeping movement of cattle and bison from the eradication program, the Animal and requirements under the Paperwork area of Minnesota that was previously Plant Health Inspection Service (APHIS) Reduction Act of 1995 (44 U.S.C. 3501 classified as modified accredited issues and enforces regulations. The et seq.). advanced for tuberculosis. regulations require the testing of cattle and bison for tuberculosis, define the List of Subjects in 9 CFR Part 77 DATES: This interim rule is effective October 4, 2011. We will consider all Federal tuberculosis status levels for Animal diseases, Bison, Cattle, comments that we receive on or before States or zones (accredited-free, Reporting and recordkeeping December 5, 2011. modified accredited advanced, modified requirements, Transportation, accredited, accreditation preparatory, ADDRESSES: You may submit comments Tuberculosis. and nonaccredited), provide the criteria by either of the following methods: Accordingly, we are amending 9 CFR • Federal eRulemaking Portal: Go to for attaining and maintaining those status levels, and contain testing and part 77 as follows: http://www.regulations.gov/ movement requirements for cattle and #!documentDetail;D=APHIS-2011-0100- PART 77—TUBERCULOSIS bison leaving States or zones of a 0001. particular status level. These regulations ■ • Postal Mail/Commercial Delivery: 1. The authority citation for part 77 are contained in 9 CFR part 77 and in continues to read as follows: Send your comment to Docket No. APHIS–2011–0100, Regulatory Analysis the Bovine Tuberculosis Eradication Authority: 7 U.S.C. 8301–8317; 7 CFR 2.22, Uniform Methods and Rules, 1999 and Development, PPD, APHIS, Station 2.80, and 371.4. (UMR), which is incorporated by 3A–03.8, 4700 River Road Unit 118, reference into the regulations. § 77.7 [Amended] Riverdale, MD 20737–1238. The status of a State or zone is based Supporting documents and any ■ 2. Section 77.7 is amended as follows: on its prevalence of tuberculosis in comments we receive on this docket ■ a. In paragraph (a), by adding the cattle and bison, the effectiveness of the may be viewed at http:// words ‘‘New Mexico,’’ after the words State’s tuberculosis eradication www.regulations.gov/ ‘‘New Jersey,’’. program, and the degree of the State’s #!docketDetail;D=APHIS-2011-0100 or ■ b. By removing and reserving compliance with standards for cattle in our reading room, which is located in paragraph (b)(2). and bison contained in the UMR. The room 1141 of the USDA South Building, regulations provide that a State may § 77.9 [Amended] 14th Street and Independence Avenue, request partitioning into specific SW., Washington, DC. Normal reading ■ 3. In § 77.9, paragraph (b)(3) is geographic regions or zones with room hours are 8 a.m. to 4:30 p.m., removed. different status designations (commonly Monday through Friday, except referred to as split-State status) if bovine Done in Washington, DC, this 30th day of holidays. To be sure someone is there to September 2011. tuberculosis is detected in a portion of help you, please call (202) 690–2817 a State and the State demonstrates that Gregory L. Parham, before coming. Administrator, Animal and Plant Health it meets certain criteria with regard to FOR FURTHER INFORMATION CONTACT: Inspection Service. zone classification. Dr. C. William Hench, Senior Staff [FR Doc. 2011–25687 Filed 10–3–11; 8:45 am] Veterinarian, Ruminant Health Request for Advancement of Modified BILLING CODE 3410–34–P Programs, Veterinary Services, APHIS, Accredited Advanced Zone 2150 Centre Avenue, Building B–3E20, In an interim rule effective and Fort Collins, CO 80526; (970) 494–7378. DEPARTMENT OF AGRICULTURE published in the Federal Register on SUPPLEMENTARY INFORMATION: October 10, 2008 (73 FR 60099–60102, Docket No. APHIS–2008–0117), we Animal and Plant Health Inspection Background Service amended the tuberculosis regulations Bovine tuberculosis is a contagious for cattle and bison by dividing 9 CFR Part 77 and infectious granulomatous disease Minnesota into two zones for caused by the bacterium Mycobacterium tuberculosis. We classified the zone in [Docket No. APHIS–2011–0100] bovis. Although commonly defined as a the northwest corner of the State chronic debilitating disease, bovine Tuberculosis in Cattle and Bison; State consisting of portions of Lake of the tuberculosis can occasionally assume an and Zone Designations; Minnesota Woods, Roseau, Marshall, and Beltrami acute, rapidly progressive course. While Counties as modified accredited, and AGENCY: Animal and Plant Health any body tissue can be affected, lesions the remainder of the State as modified Inspection Service, USDA. are most frequently observed in the accredited advanced. ACTION: Interim rule and request for lymph nodes, lungs, intestines, liver, Subsequently, in an interim rule comments. spleen, pleura, and peritoneum. effective and published in the Federal Although cattle are considered to be the Register on October 1, 2010 (75 FR SUMMARY: We are amending the bovine true hosts of M. bovis, the disease has 60586–60588, Docket No. APHIS–2010– tuberculosis regulations regarding State been reported in several other species of 0097), we reclassified the modified and zone classifications by reclassifying both domestic and nondomestic accredited zone as modified accredited a zone in Minnesota consisting of animals, as well as in humans. advanced, and the remainder of the portions of Lake of the Woods, Roseau, At the beginning of the past century, State as accredited free. Marshall, and Beltrami Counties. We tuberculosis caused more losses of We have received from the State of have determined that the zone meets the livestock than all other livestock Minnesota a request to reclassify the criteria for accredited-free status. Since diseases combined. This prompted the modified accredited advanced zone as

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accredited free. Based on the findings of on small entities. The analysis is PART 77—TUBERCULOSIS a review of the tuberculosis eradication summarized below. The full analysis program in Minnesota conducted during may be viewed on the Regulations.gov ■ 1. The authority citation for part 77 June and July 2011, APHIS has Web site (see ADDRESSES above for continues to read as follows: determined that the zone meets the instructions for accessing Authority: 7 U.S.C. 8301–8317; 7 CFR criteria for advancement of status Regulations.gov) or obtained from the 2.22, 2.80, and 371.4. contained in the regulations. person listed under FOR FURTHER State animal health officials in INFORMATION CONTACT. § 77.7 [Amended] Minnesota have demonstrated that the Advancing the status of the former ■ 2. Section 77.7 is amended as follows: State enforces and complies with the modified accredited advanced zone in ■ a. In paragraph (a), by adding the provisions of the UMR. The State of Minnesota will reduce the interstate word ‘‘Minnesota,’’ after the word Minnesota has demonstrated that the movement restrictions for cattle and ‘‘Massachusetts,’’. modified accredited advanced zone has bison originating from portions of Lake ■ b. By removing paragraph (b)(3). zero percent prevalence of cattle and of the Woods, Roseau, Marshall, and bison herds affected with tuberculosis Beltrami Counties. Herd owners in the § 77.9 [Amended] and has had no findings of tuberculosis area will no longer have to test their ■ 3. In § 77.9, paragraph (b)(2) is in any cattle or bison in the zone since cattle and bison for bovine tuberculosis removed and reserved. the last affected herd in the zone was in order to move them interstate. depopulated in January 2009. Therefore, Done in Washington, DC, this 30th day of Tuberculosis testing, including September 2011. Minnesota has demonstrated that the veterinary fees, costs about $10 to $15 Gregory L. Parham, zone within the State previously per head. The annual cost savings classified as modified accredited associated with the removal of those Administrator, Animal and Plant Health Inspection Service. advanced meets the criteria for tests for the 254 herds in the affected accredited-free status as set forth in the area is expected to be between $110,280 [FR Doc. 2011–25688 Filed 10–3–11; 8:45 am] definition of accredited-free State or and $165,420, or from $434 to $651 per BILLING CODE 3410–34–P zone in § 77.5 of the regulations. herd on average. In addition, Based on our evaluation of tuberculosis testing costs represent no Minnesota’s request, we are classifying more than about 1.7 percent of the FEDERAL ELECTION COMMISSION the zone consisting of portions of Lake average value of the cattle tested, which of the Woods, Roseau, Marshall, and was $870 per head on January 1, 2010. 11 CFR Parts 104 and 109 Beltrami Counties as accredited free, Under these circumstances, the [Notice 2011–13] which results in the entire State of Administrator of the Animal and Plant Minnesota having an accredited-free Health Inspection Service has Interpretive Rule on When Certain classification. determined that this action will not Independent Expenditures Are Immediate Action have a significant economic impact on ‘‘Publicly Disseminated’’ for Reporting a substantial number of small entities. Purposes Immediate action is warranted to relieve restrictions on the interstate Executive Order 12372 AGENCY: Federal Election Commission. movement of cattle and bison from This program/activity is listed in the ACTION: Notice of interpretive rule. portions of Lake of the Woods, Roseau, Catalog of Federal Domestic Assistance Marshall, and Beltrami Counties in under No. 10.025 and is subject to SUMMARY: The Federal Election Minnesota. Under these circumstances, Executive Order 12372, which requires Commission is issuing guidance on the Administrator has determined that intergovernmental consultation with when independent expenditure prior notice and opportunity for public State and local officials. (See 7 CFR part communications that take the form of comment are contrary to the public 3015, subpart V.) yard signs, mini-billboards, handbills, interest and that there is good cause t-shirts, hats, buttons, and similar items under 5 U.S.C. 553 for making this Executive Order 12988 are ‘‘publicly disseminated’’ for action effective less than 30 days after This rule has been reviewed under purposes of certain reporting publication in the Federal Register. Executive Order 12988, Civil Justice requirements in Commission We will consider comments we Reform. This rule has no retroactive regulations. receive during the comment period for effect and does not require DATES: Effective October 4, 2011. this interim rule (see DATES above). administrative proceedings before FOR FURTHER INFORMATION CONTACT: Ms. After the comment period closes, we parties may file suit in court challenging Amy Rothstein, Assistant General will publish another document in the this rule. Counsel, Ms. Cheryl A.F. Hemsley or Federal Register. The document will Paperwork Reduction Act Mr. Theodore M. Lutz, Attorneys, 999 E include a discussion of any comments Street, NW., Washington, DC 20463, we receive and any amendments we are This rule contains no new (202) 694–1650 or (800) 424–9530. making to the rule. information collection or recordkeeping requirements under the Paperwork SUPPLEMENTARY INFORMATION: An Executive Order 12866 and Regulatory Reduction Act of 1995 (44 U.S.C. 3501 independent expenditure is ‘‘an Flexibility Act et seq.). expenditure by a person for a This interim rule is subject to communication expressly advocating List of Subjects in 9 CFR Part 77 Executive Order 12866. However, for the election or defeat of a clearly this action, the Office of Management Animal diseases, Bison, Cattle, identified candidate that is not made in and Budget has waived its review under Reporting and recordkeeping cooperation, consultation, or concert Executive Order 12866. requirements, Transportation, with, or at the request or suggestion of, In accordance with the Regulatory Tuberculosis. a candidate, a candidate’s authorized Flexibility Act, we have analyzed the Accordingly, we are amending 9 CFR committee, or their agents, or a political potential economic effects of this action part 77 as follows: party committee or its agents.’’ 11 CFR

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100.16; see also 2 U.S.C. 431(17). expenditure communications that take it create or remove any rights, duties, or Political committees and other persons the form of items such as yard signs, obligations. The provisions of the making independent expenditures mini-billboards, handbills, t-shirts, hats, Regulatory Flexibility Act, which apply (‘‘Filers’’) must file reports disclosing buttons, as ‘‘publicly disseminated’’ on when notice and comment are required their independent expenditures at any reasonable date starting with the by the Administrative Procedures Act or certain regular intervals. See 2 U.S.C. date the Filer receives or exercises another statute, do not apply. See 5 434(a)(4) and (c); 11 CFR 104.4 and control over the items in the usual and U.S.C. 603(a). 109.10(b). In addition, Filers must normal course of dissemination, up to Dated: September 29, 2011. report all independent expenditures that and including the date that the On behalf of the Commission. aggregate more than certain dollar communications are actually Cynthia L. Bauerly, amounts during certain reporting disseminated to the public.2 Reasonable Chair, Federal Election Commission. periods within either 24 hours or 48 dates that may be treated as the date of hours of the date on which the person public dissemination include, but are [FR Doc. 2011–25568 Filed 10–3–11; 8:45 am] makes or contracts to make independent not limited to (1) The date that a Filer BILLING CODE 6715–01–P expenditures. 2 U.S.C. 434(g). The receives delivery of the communication, Commission’s regulation requires that (2) the date that a Filer distributes the Filers ‘‘ensure that the Commission communication to its members or DEPARTMENT OF TRANSPORTATION receives these reports by [either 24 employees for later public Federal Aviation Administration hours or 48 hours] following the date on dissemination, (3) the date that a Filer which a communication that constitutes distributes the communications to its 14 CFR Part 39 an independent expenditure is publicly affiliate or member organizations for distributed or otherwise publicly later public dissemination, (4) the date [Docket No. FAA–2011–0935; Directorate disseminated.’’ 11 CFR 104.4(b)(2); see as of which the Filer authorizes its Identifier 2011–NE–28–AD; Amendment 39– also 11 CFR 104.4(c), and (f), and members or employees to display the 16813; AD 2011–18–51R1] 109.10(c) and (d). communication, or (5) the date of actual RIN 2120–AA64 The actual public dissemination date public dissemination, if that date is of independent expenditure known to the Filer.3 In no event, Airworthiness Directives; Honeywell communications that take the form of however, may a Filer choose a date that International Inc. TPE331 Model items such as yard signs, mini- is later than the actual date of Turboprop Engines With Certain Dixie billboards, handbills, t-shirts, hats, and dissemination. Similarly, in no event Aerospace, LLC Main Shaft Bearings buttons may be difficult to ascertain, may a Filer choose a date that is however, particularly where the items AGENCY: Federal Aviation subsequent to the date of the election to Administration (FAA), DOT. are disseminated in stages or where the which the independent expenditure ACTION: Final rule; request for Filer is an organization that purchases communication pertains. comments. the items from a vendor, and then The Commission believes that this retains the items for a period of time interpretation of its regulations provides SUMMARY: We are revising an existing before distributing them to affiliate or Filers with an administratively emergency airworthiness directive (AD) member organizations or to individuals, workable method for determining the for all Honeywell International Inc. such as the organization’s employees, date of dissemination for these types of TPE331 model turboprop engines with a members or customers, to wear or independent expenditure part manufacturer approval (PMA) display in public. For this reason, the communications, consistent with the replacement Dixie Aerospace, LLC main Commission is issuing this notice to ‘‘[c]ongressional intent to emphasize shaft bearing part number (P/N) clarify that a range of acceptable dates and ensure timely disclosure’’ of 3108098–1WD, installed. That may be used as the public dissemination independent expenditures. Explanation emergency AD was not published in the date 1 for these forms of independent and Justification for Final Rules on Federal Register, but was sent to all expenditure communications for both Independent Expenditure Reporting, 67 known U.S. owners and operators of individual and organizational Filers. For purposes of the reporting FR 12834, 12837 (Mar. 20, 2002). these engines. That AD currently requirements in 11 CFR 104.4(b)(2), (c), This document is an interpretive rule requires an inspection of the airplane and (f), and 109.10(c) and (d), the announcing the general course of action records to determine if a Dixie Commission hereby clarifies that the that the Commission intends to follow. Aerospace, LLC main shaft bearing, P/N Filer may report independent This interpretive rule does not 3108098–1WD, is installed in the constitute an agency action requiring engine, and if installed, removal of that 1 This notice focuses on the date on which notice of proposed rulemaking, bearing from service, before further independent expenditures are ‘‘publicly opportunities for public participation, flight. This AD requires the same disseminated,’’ rather than the date on which they prior publication, or delay in effective actions. This AD revision was prompted are ‘‘publicly distributed.’’ Generally, independent date under 5 U.S.C. 553 of the by the need to list the affected bearings expenditures that are made public by broadcast, cable or satellite are ‘‘publicly distributed.’’ See 11 Administrative Procedures Act. It does by serial number (S/N) in the AD for CFR 100.29(b)(2); see also Explanation and not bind the Commission or any clarification. We are issuing this AD to Justification for Final Rules on Bipartisan Campaign members of the general public, nor does correct the unsafe condition on these Reform Act of 2002 Reporting, 68 FR 404, 407 (Jan. products. 3, 2003). In contrast, all other forms of independent 2 expenditure communications, such as those made Once the public dissemination date is DATES: This AD is effective October 19, public in newspapers, magazines, or via handbills established, independent expenditure 2011. are considered to be ‘‘publicly disseminated.’’ See communications must be reported pursuant to 11 Explanation and Justification for Final Rules on CFR 104.4(b)(2), (c), and (f), and 109.10(c) and (d). We must receive comments on this Bipartisan Campaign Reform Act of 2002 Reporting, 3 The Commission notes that, for any given AD by November 18, 2011. 68 FR 404, 407 (Jan. 3, 2003). This particular rule independent expenditure communication, Filers ADDRESSES: You may send comments, interprets ‘‘publicly disseminated’’ for those items should list the same date of dissemination on their using the procedures found in 14 CFR that do not have an inherent date certain for public regularly scheduled FEC reports as the date they dissemination, such as yard signs, mini-billboards, listed on their 24- and 48-Hour Independent 11.43 and 11.45, by any of the following handbills, t-shirts, hats, and buttons. Expenditure reports. methods:

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• Federal eRulemaking Portal: Go to this AD as ‘‘products’’) when an unsafe specifically invite comments on the http://www.regulations.gov. Follow the condition exists in a product; and that overall regulatory, economic, instructions for submitting comments. unsafe condition is likely to exist or environmental, and energy aspects of • Fax: 202–493–2251. develop in other products of the same this AD. We will consider all comments • Mail: U.S. Department of type design. Therefore, although the received by the closing date and may Transportation, Docket Operations, unsafe condition is caused by the failure amend this AD because of those M–30, West Building Ground Floor, of certain PMA parts manufactured by comments. Room W12–140, 1200 New Jersey Dixie Aerospace, LLC, for the product We will post all comments we Avenue, SE., Washington, DC 20590. affected, we must include the type receive, without change, to http://www. • Hand Delivery: Deliver to Mail certificate (TC) holder’s legal name in regulations.gov, including any personal address above between 9 a.m. and the subject line of the AD. For this AD, information you provide. We will also 5 p.m., Monday through Friday, except the TC holder is Honeywell post a report summarizing each Federal holidays. International Inc. substantive verbal contact we receive Examining the AD Docket Actions Since AD 2011–18–51 Was about this AD. You may examine the AD docket on Issued Costs of Compliance the Internet at http://www.regulations. We are revising Emergency AD 2011– We estimate that this AD will require gov; or in person at the Docket 18–51 with this final rule because we 1,000 engines installed on airplanes of Operations Office between 9 a.m. and determined the need to list the affected U.S. registry to have their records 5 p.m., Monday through Friday, except bearings by serial number (S/N) in the inspected, and the inspection will take Federal holidays. The AD docket AD for clarification. about 0.5 hour per engine. We also contains this AD, the regulatory FAA’s Determination estimate that one engine will require the evaluation, any comments received, and affected main shaft bearing to be other information. The street address for We are issuing this AD because we removed from service. We also estimate the Docket Operations Office (phone: evaluated all relevant information and that it will take about 24 work-hours per 800–647–5527) is in the ADDRESSES determined the unsafe condition engine to remove the bearing from section. Comments will be available in described previously is likely to exist or service and that the average labor rate is the AD docket shortly after receipt. develop in other products of the same $85 per work-hour. A replacement type design. FOR FURTHER INFORMATION CONTACT: bearing will cost about $5,750. Based on Juanita Craft, Aerospace Engineer, FAA, AD Requirements these figures, we estimate the total cost Atlanta Aircraft Certification Office, This AD requires an inspection of of the AD to U.S. operators to be 1701 Columbia Avenue, College Park, records to determine if certain S/N Dixie $50,290. GA 30337; phone: 404–474–5584; fax: Aerospace, LLC main shaft bearings, Authority for This Rulemaking 404–474–5606; e-mail: juanita.craft@ P/N 3108098–1WD, are installed in faa.gov. Honeywell International Inc. TPE331 Title 49 of the United States Code SUPPLEMENTARY INFORMATION: model turboprop engines. Within 10 specifies the FAA’s authority to issue rules on aviation safety. Subtitle I, Discussion operating hours, affected bearings must be removed from service. section 106, describes the authority of On August 17, 2011, we issued the FAA Administrator. Subtitle VII: Emergency AD 2011–18–51, for all FAA’s Justification and Determination Aviation Programs describes in more Honeywell International Inc. TPE331 of the Effective Date detail the scope of the Agency’s model turboprop engines with a PMA An unsafe condition exists that authority. replacement Dixie Aerospace, LLC main requires the immediate adoption of this We are issuing this rulemaking under shaft bearing, P/N 3108098–1WD, AD. The FAA has found that the risk to the authority described in subtitle VII, installed. That AD requires inspection the flying public justifies waiving notice part A, subpart III, section 44701: of the airplane records to determine if and comment prior to adoption of this ‘‘General requirements.’’ Under that a Dixie Aerospace, LLC main shaft rule because the bearing failure section, Congress charges the FAA with bearing, part number (P/N) 3108098– mechanism is severe and sudden. promoting safe flight of civil aircraft in 1WD, is installed in the engine, and if Therefore, we find that notice and air commerce by prescribing regulations installed, removal of that bearing from opportunity for prior public comment for practices, methods, and procedures service, before further flight. That are impracticable and that good cause the Administrator finds necessary for emergency AD resulted from an exists for making this amendment safety in air commerce. This regulation excessive failure rate of PMA main shaft effective in less than 30 days. is within the scope of that authority bearings, P/N 3108098–1WD, because it addresses an unsafe condition manufactured by Dixie Aerospace, LLC. Comments Invited that is likely to exist or develop on That emergency AD was not published This AD is a final rule that involves products identified in this rulemaking in the Federal Register, but was sent to requirements affecting flight safety and action. all known U.S. owners and operators of we did not provide you with notice and Regulatory Findings these engines. This AD requires the an opportunity to provide your same actions. We are issuing this AD to comments before it becomes effective. This AD will not have federalism prevent engine main rotor seizure However, we invite you to send any implications under Executive Order resulting in engine damage, shutdown, written data, views, or arguments about 13132. This AD will not have a and damage to the airplane. this AD. Send your comments to an substantial direct effect on the States, on Under 14 CFR 39.1, the Engine & address listed under the ADDRESSES the relationship between the national Propeller Directorate is only authorized section. Include the docket number government and the States, or on the to issue airworthiness directives that FAA–2011–0935 and Directorate distribution of power and apply to aircraft engines, propellers, or Identifier 2011–NE–28–AD at the responsibilities among the various appliances (hereinafter referred to in beginning of your comments. We levels of government.

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For the reasons discussed above, I Adoption of the Amendment FAA–2011–0935; Directorate Identifier certify that this AD: Accordingly, under the authority 2011–NE–28–AD. (1) Is not a ‘‘significant regulatory delegated to me by the Administrator, Effective Date action’’ under Executive Order 12866, the FAA amends 14 CFR part 39 as (a) This AD is effective October 19, 2011. (2) Is not a ‘‘significant rule’’ under follows: DOT Regulatory Policies and Procedures Affected ADs (44 FR 11034, February 26, 1979), PART 39—AIRWORTHINESS (b) This AD revises emergency AD 2011– DIRECTIVES (3) Will not affect intrastate aviation 18–51. in Alaska, and ■ 1. The authority citation for part 39 Applicability (4) Will not have a significant continues to read as follows: (c) This AD applies to all Honeywell economic impact, positive or negative, Authority: 49 U.S.C. 106(g), 40113, 44701. International Inc. TPE331 model turboprop on a substantial number of small entities engines with the serial numbers (S/Ns) of under the criteria of the Regulatory § 39.13 [Amended] part manufacturer approval (PMA) Flexibility Act. replacement Dixie Aerospace, LLC main shaft ■ 2. The FAA amends § 39.13 by adding List of Subjects in 14 CFR Part 39 bearings, part number (P/N) 3108098–1WD, the following new airworthiness listed by S/N in Table 1 of this AD, installed. Air transportation, Aircraft, Aviation directive (AD): Bearings having the P/N 3108098–1, but not safety, Incorporation by reference, 2011–18–51R1 Honeywell International the WD at the end of the P/N, are not affected Safety. Inc.: Amendment 39–16813; Docket No. by this AD.

TABLE 1—AFFECTED S/NSOFDIXIE AEROSPACE, LLC MAIN SHAFT BEARINGS, P/N 3108098–1WD

A10–1727 A10–1762 A10–1764 A10–1770 A10–1771 A10–1775 A10–1776 A10–1780 A10–1786 A10–1789 A10–1796 A10–1798 A10–1799 A10–1800 A10–1801 A10–1803 A10–1804 A10–1805 A10–1809 A10–1810 A10–1811 A10–1814 A10–1818 A10–1822 A10–1825

Unsafe Condition Columbia Avenue, College Park, GA 30337; Administration, 800 Independence (d) This AD revision was prompted by the phone: 404–474–5584; fax: 404–474–5606; Avenue, SW., Washington, DC 20591; need to list the affected bearings by S/N in e-mail: [email protected]. telephone: (202) 267–8783. the AD for clarification. We are issuing this Issued in Burlington, Massachusetts, on SUPPLEMENTARY INFORMATION: AD to prevent engine main rotor seizure September 16, 2011. resulting in engine damage, shutdown, and Background damage to the airplane. Peter A. White, Manager, Engine & Propeller Directorate, A review of the description of VOR Compliance Aircraft Certification Service. Federal airway V–299 found that (e) Comply with this AD within the [FR Doc. 2011–25481 Filed 10–3–11; 8:45 am] wording excluding the airspace within compliance times specified, unless already BILLING CODE 4910–13–P restricted area R–2519 from the airway done. was incorrectly deleted in a previous (f) For all airplanes with a Honeywell rule amending V–299 that removed International Inc. TPE331 model turboprop DEPARTMENT OF TRANSPORTATION engine installed, where the engine was reference to another restricted area, R–2520. See (52 FR 5947; February 27, overhauled or replaced since February 1, Federal Aviation Administration 2010: 1987). The exclusionary wording had (1) Within 10 operating hours, inspect the previously been included in the airplane records to determine if any of the 14 CFR Part 71 description of V–299 (45 FR 335; S/Ns of Dixie Aerospace, LLC main shaft [Docket No. FAA–2011–1015; Airspace January 2, 1980). bearing, P/N 3108098–1WD, listed in Table 1 Docket No. 10–AWP–13] of this AD, are installed in the engine. The Rule (2) Remove all S/Ns of Dixie Aerospace, Amendment to Description of VOR This action amends Title 14 Code of LLC main shaft bearings listed in Table 1 of Federal Airway V–299; CA this AD, from service, before further flight. Federal Regulations (14 CFR) part 71 to AGENCY: Federal Aviation amend the regulatory text of VOR Installation Prohibition Administration (FAA), DOT. Federal airway V–299 by inserting the (g) After the effective date of this AD, do ACTION: Final rule; technical words ‘‘is excluded’’ following the not install any of the bearings listed in Table amendment. words ‘‘* * * the airspace within 1 of this AD into any engine. R–2519 below 5,000 feet MSL. * * *’’ Alternative Methods of Compliance SUMMARY: This action amends the This is an administrative change to (AMOCs) description of VOR Federal airway insert wording inadvertently omitted (h) The Manager, Atlanta Aircraft V–299 by reinserting wording that from the airway description; therefore, Certification Office, FAA, has the authority to excludes the airspace in restricted area notice and public procedures under 5 approve AMOCs for this AD, if requested R–2519 from the airway. U.S.C. 533(b) are unnecessary. using the procedures found in 14 CFR 39.19. DATES: Effective date 0901 UTC October VOR Federal airways are published in Related Information 4, 2011. paragraph 6010 of FAA Order 7400.9V (i) For further information about this AD, FOR FURTHER INFORMATION CONTACT: Paul dated August 9, 2011, and effective contact: Juanita Craft, Aerospace Engineer, Gallant, Airspace, Regulations and ATC September 15, 2011, which is Atlanta Aircraft Certification Office, FAA, Procedures Group, Office of Airspace incorporated by reference in 14 CFR Atlanta Aircraft Certification Office, 1701 Services, Federal Aviation 71.1. The VOR Federal airway listed in

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this document will be subsequently PART 71—DESIGNATION OF CLASS A, the annual revision of FAA Order published in the Order. B, C, D, AND E AIRSPACE AREAS; AIR 7400.9 and publication of conforming The FAA has determined that this TRAFFIC SERVICE ROUTES; AND amendments. regulation only involves an established REPORTING POINTS FOR FURTHER INFORMATION CONTACT: body of technical regulations for which Martha Dunn, AAL–538G, Federal ■ 1. The authority citation for part 71 frequent and routine amendments are Aviation Administration, 222 West 7th continues to read as follows: necessary to keep them operationally Avenue, Box 14, Anchorage, AK 99513– current. Therefore, this regulation: (1) Is Authority: 49 U.S.C. 106(g), 40103, 40113, 7587; telephone number (907) 271– not a ‘‘significant regulatory action’’ 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 5898; fax: (907) 271–2850; e-mail: under Executive Order 12866; (2) is not 1963 Comp., p. 389. [email protected]. Internet a ‘‘significant rule’’ under Department of address: http://www.faa.gov/about/ Transportation (DOT) Regulatory § 71.1 [Amended] office_org/headquarters_offices/ato/ Policies and Procedures (44 FR 11034; _ ■ 2. The incorporation by reference in service units/systemops/fs/alaskan/ February 26, 1979); and (3) does not 14 CFR 71.1 of the Federal Aviation rulemaking/. warrant preparation of a regulatory Administration Order 7400.9V, Airspace SUPPLEMENTARY INFORMATION: evaluation as the anticipated impact is Designations and Reporting Points, so minimal. Since this is a routine History dated August 9, 2011, and effective matter that will only affect air traffic September 15, 2011, is amended as On Friday, July 29, 2011, the FAA procedures and air navigation, it is follows: published a notice of proposed certified that this rule, when rulemaking (NPRM) in the Federal promulgated, will not have a significant Paragraph 6010 VOR Federal Airways Register to revise Class E airspace at economic impact on a substantial V–299 [Amended] Allakaket, AK (76 FR 45477). number of small entities under the Interested parties were invited to criteria of the Regulatory Flexibility Act. From Los Angeles, CA, INT Los Angeles participate in this rulemaking 291° and Fillmore, CA, 163° radials; Ventura, The FAA’s authority to issue rules proceeding by submitting written regarding aviation safety is found in CA; Fillmore; to Gorman, CA. The airspace within R–2519 more than 3 statute miles W comments on the proposal to the FAA. Title 49 of the United States Code. of Ventura 155° and 331° radials, and the A comment was received that reference Subtitle I, section 106 describes the airspace within R–2519 below 5,000 feet to Class E2 airspace should be removed authority of the FAA Administrator. MSL is excluded. The portion outside the as it is not applicable to Allakaket. The Subtitle VII, Aviation Programs, United States has no upper limit. FAA agrees and has removed those describes in more detail the scope of the references. agency’s authority. Issued in Washington, DC, on September Class E airspace areas are published 27, 2011. This rulemaking is promulgated in paragraph 6005 of FAA Order Gary A. Norek, under the authority described in subtitle 7400.9V, Airspace Designations and VII, part A, subpart I, section 40103. Acting Manager, Airspace, Regulations and Reporting Points, signed September 9, ATC Procedures Group. Under that section, the FAA is charged 2011, and effective September 15, 2011, with prescribing regulations to assign [FR Doc. 2011–25415 Filed 10–3–11; 8:45 am] which is incorporated by reference in 14 the use of the airspace necessary to BILLING CODE 4910–13–P CFR 71.1. The Class E airspace ensure the safety of aircraft and the designations listed in this document efficient use of airspace. This regulation will be published subsequently in the DEPARTMENT OF TRANSPORTATION is within the scope of that authority as Order. With the exception of editorial it amends an airway description in Federal Aviation Administration changes, and the changes described California to keep it current to ensure above, this rule is the same as that the safety of aircraft operations within 14 CFR Part 71 proposed in the NPRM. the National Airspace System. [Docket No. FAA–2011–0756; Airspace The Rule Environmental Review Docket No. 11–AAL–09] This action amends Title 14 Code of The FAA has determined that this Federal Regulations (14 CFR) part 71 by Revision of Class E Airspace; action qualifies for categorical exclusion revising Class E airspace at the Allakaket, AK under the National Environmental Allakaket Airport, Allakaket, AK, to Policy Act in accordance with FAA AGENCY: Federal Aviation accommodate the amendment of a Order 1050.1E, Environmental Impacts: Administration (FAA), DOT. standard instrument approach Polices and Procedures, paragraph 311a. ACTION: Final rule. procedure. The additional Class E This airspace action is not expected to airspace provides adequate controlled cause any potentially significant SUMMARY: This action revises Class E airspace extending upward from 700 environmental impacts, and no airspace at Allakaket, AK, to and 1,200 feet above the surface is extraordinary circumstances exist that accommodate the amendment of one necessary for the safety and warrant preparation of an Standard Instrument Approach management of IFR operations at the environmental assessment. Procedure at the Allakaket Airport. The airport. FAA is taking this action to enhance The FAA has determined that this List of Subjects in 14 CFR Part 71 safety and management of Instrument regulation only involves an established Airspace, Incorporation by reference, Flight Rules (IFR) operations at the body of technical regulations for which Navigation (air). Allakaket Airport. frequent and routine amendments are DATES: Effective 0901 UTC, December necessary to keep them operationally Adoption of the Amendment 15, 2011. The Director of the Federal current. It, therefore—(1) Is not a In consideration of the foregoing, the Register approves this incorporation by ‘‘significant regulatory action’’ under Federal Aviation Administration reference action under title 1, Code of Executive Order 12866; (2) is not a amends 14 CFR part 71 as follows: Federal Regulations, part 51, subject to ‘‘significant rule’’ under DOT

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Regulatory Policies and Procedures (44 AAL AK E5 Allakaket, AK [Revised] FOR FURTHER INFORMATION CONTACT: If FR 11034; February 26, 1979); and (3) Allakaket Airport, AK you have questions on this temporary does not warrant preparation of a (Lat. 66°33′07″ N., long. 152°37′20″ W.) rule, call or e-mail Ensign William regulatory evaluation as the anticipated That airspace extending upward from 700 Hawn, U.S. Coast Guard Sector San impact is so minimal. Because this is a feet above the surface within an 8.6-mile Francisco; telephone (415) 399–7442 or routine matter that will only affect air radius of the Allakaket Airport, AK and that e-mail at D11-PF- traffic procedures and air navigation, it airspace extending upward from 1,200 feet [email protected]. If you have is certified that this rule will not have above the surface within a 71-mile radius of questions on viewing the docket, call a significant economic impact on a the Allakaket Airport, AK. Renee V. Wright, Program Manager, substantial number of small entities Issued in Anchorage, AK, on September 21, Docket Operations, telephone (202) under the criteria of the Regulatory 2011. 366–9826. Flexibility Act. Marshall G. Severson, SUPPLEMENTARY INFORMATION: The FAA’s authority to issue rules Acting Manager, Alaska Flight Services. regarding aviation safety is found in Regulatory Information Title 49 of the United States Code. [FR Doc. 2011–25160 Filed 10–3–11; 8:45 am] The Coast Guard is issuing this Subtitle 1, section 106 describes the BILLING CODE 4910–13–P temporary final rule without prior authority of the FAA Administrator. notice and opportunity to comment Subtitle VII, Aviation Programs, pursuant to authority under section 4(a) describes in more detail the scope of the DEPARTMENT OF HOMELAND of the Administrative Procedure Act agency’s authority. SECURITY (APA) (5 U.S.C. 553(b)). This provision This rulemaking is promulgated authorizes an agency to issue a rule under the authority described in subtitle Coast Guard without prior notice and opportunity to VII, part A, subpart 1, section 40103, comment when the agency for good Sovereignty and use of airspace. Under 33 CFR Part 165 cause finds that those procedures are that section, the FAA is charged with [Docket No. USCG–2011–0805] ‘‘impracticable, unnecessary, or contrary prescribing regulations to ensure the to the public interest.’’ Under 5 U.S.C. safe and efficient use of the navigable RIN 1625–AA00 553(b)(B), the Coast Guard finds that good cause exists for not publishing a airspace. This regulation is within the Safety Zone; Monte Foundation notice of proposed rulemaking (NPRM) scope of that authority because it creates Fireworks Extravaganza, Aptos, CA Class E airspace sufficient in size to with respect to this rule because the contain aircraft executing instrument AGENCY: Coast Guard, DHS. event would occur before the rulemaking process would be procedures for the Allakaket Airport, ACTION: Temporary final rule. AK and represents the FAA’s continuing completed. Because of the dangers effort to safely and efficiently use the SUMMARY: The Coast Guard is posed by the pyrotechnics used in this navigable airspace. establishing a temporary safety zone in fireworks display, the safety zone is the specified navigable waters near necessary to provide for the safety of List of Subjects in 14 CFR Part 71 Seacliff State Beach Pier in Aptos, event participants, spectators, spectator Airspace, Incorporation by reference, California in support of the Monte craft, and other vessels transiting the Navigation (air). Foundation Fireworks Extravaganza. event area. For the safety concerns noted, it is impracticable to publish an Adoption of the Amendment This safety zone is established to ensure the safety of participants and spectators NPRM prior to the event. In consideration of the foregoing, the from the dangers associated with the Under 5 U.S.C. 553(d)(3), the Coast Federal Aviation Administration pyrotechnics. Unauthorized persons or Guard finds that good cause exists for amends 14 CFR part 71 as follows: vessels are prohibited from entering making this rule effective less than 30 days after publication in the Federal PART 71—DESIGNATION OF CLASS A, into, transiting through, or remaining in the safety zone without permission of Register. Due to the need for immediate B, C, D, AND E AIRSPACE AREAS; AIR action, the safety zone is necessary to TRAFFIC SERVICE ROUTES; AND the Captain of the Port or their designated representative. protect life, property and the REPORTING POINTS environment; therefore, a 30-day notice DATES: This rule is effective from 9 p.m. is impracticable. Delaying the effective ■ 1. The authority citation for 14 CFR through 10 p.m. on October 7, 2011. date would be contrary to the safety part 71 continues to read as follows: ADDRESSES: Documents indicated in this zone’s intended objectives of protecting Authority: 49 U.S.C. 106(g), 40103, 40113, preamble as being available in the persons and vessels involved in the 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– docket are part of docket USCG–2011– event, and enhancing public and 1963 Comp., p. 389. 0805 and are available online by going maritime safety. to http://www.regulations.gov, selecting § 71.1 [Amended] the Advanced Docket Search option on Basis and Purpose ■ 2. The incorporation by reference in the right side of the screen, inserting Rudolph F. Monte Foundation will 14 CFR 71.1 of Federal Aviation USCG–2011–0805 in the Docket ID box, sponsor the Monte Foundation Administration Order 7400.9V, pressing Enter, and then clicking the Fireworks Extravaganza on October 7, Airspace Designations and Reporting item in the Docket ID column. They are 2011, in the navigable waters around Points, signed September 9, 2011, and also available for inspection or copying Seacliff State Beach Pier near Aptos, effective September 15, 2011, is at the Docket Management Facility (M– CA. During the fireworks display the amended as follows: 30), U.S. Department of Transportation, safety zone will extend to 1,000 feet West Building Ground Floor, Room around the pier located at position Paragraph 6005 Class E airspace extending W12–140, 1200 New Jersey Avenue, SE., 36°58′11.2″ N, 121°54′36.79″ W (NAD upward from 700 feet or more above the Washington, DC 20590, between 9 a.m. 83). The fireworks display is meant for surface of the earth. and 5 p.m., Monday through Friday, entertainment purposes. This safety * * * * * except Federal holidays. zone is issued to establish a temporary

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restricted area on the waters Small Entities Federalism surrounding the fireworks launch site Under the Regulatory Flexibility Act A rule has implications for federalism during the fireworks display. This (5 U.S.C. 601–612), we have considered under Executive Order 13132, restricted area around the launch site is whether this rule would have a Federalism, if it has a substantial direct necessary to protect spectators, vessels, significant economic impact on a effect on State or local governments and and other property from the hazards substantial number of small entities. would either preempt State law or associated with the pyrotechnics. The The term ‘‘small entities’’ comprises impose a substantial direct cost of Coast Guard has granted the event small businesses, not-for-profit compliance on them. We have analyzed sponsor a marine event permit for the organizations that are independently this rule under that Order and have fireworks display. owned and operated and are not determined that it does not have implications for federalism. Discussion of Rule dominant in their fields, and governmental jurisdictions with Unfunded Mandates Reform Act The fireworks display will occur from populations of less than 50,000. 9 p.m. until 9:25 p.m. on October 7, The Coast Guard certifies under The Unfunded Mandates Reform Act 2011, during which the safety zone will 5 U.S.C. 605(b) that this rule will not of 1995 (2 U.S.C. 1531–1538) requires extend 1,000 feet from the nearest point have a significant economic impact on Federal agencies to assess the effects of of the pier at position 36°58′11.2″ N, a substantial number of small entities. their discretionary regulatory actions. In 121°54′36.79″ W (NAD 83). At 10 p.m. This rule may affect owners and particular, the Act addresses actions that may result in the expenditure by a on October 7, 2011 the safety zone shall operators of pleasure craft engaged in State, local, or tribal government, in the terminate. recreational activities and sightseeing. This rule will not have a significant aggregate, or by the private sector of The effect of the temporary safety economic impact on a substantial $100,000,000 (adjusted for inflation) or zone will be to restrict navigation in the number of small entities for several more in any one year. Though this rule vicinity of the fireworks site until the reasons: (i) Vessel traffic can pass safely will not result in such an expenditure, conclusion of the scheduled display. around the area, (ii) vessels engaged in we do discuss the effects of this rule Except for persons or vessels authorized recreational activities and sightseeing elsewhere in this preamble. by the Coast Guard Patrol Commander, have ample space outside of the effected Taking of Private Property no person or vessel may enter or remain portion of the areas off San Francisco, This rule will not cause a taking of in the restricted area. These regulations CA to engage in these activities, (iii) this private property or otherwise have are needed to keep spectators and rule will encompass only a small taking implications under Executive vessels a safe distance from the portion of the waterway for a limited Order 12630, Governmental Actions and fireworks display to ensure the safety of period of time, and (iv) the maritime Interference with Constitutionally participants, spectators, and transiting public will be advised in advance of this Protected Property Rights. vessels. safety zone via Broadcast Notice to Regulatory Analyses Mariners. Civil Justice Reform Assistance for Small Entities This rule meets applicable standards We developed this rule after in sections 3(a) and 3(b)(2) of Executive considering numerous statutes and Under section 213(a) of the Small Order 12988, Civil Justice Reform, to executive orders related to rulemaking. Business Regulatory Enforcement minimize litigation, eliminate Below we summarize our analyses Fairness Act of 1996 (Pub. L. 104–121), ambiguity, and reduce burden. based on 13 of these statutes and we offer to assist small entities in executive orders. understanding the rule so that they can Protection of Children better evaluate its effects on them and Regulatory Planning and Review We have analyzed this rule under participate in the rulemaking process. Executive Order 13045, Protection of This rule is not a significant Small businesses may send comments Children from Environmental Health regulatory action under section 3(f) of on the actions of Federal employees Risks and Safety Risks. This rule is not Executive Order 12866, Regulatory who enforce, or otherwise determine an economically significant rule and Planning and Review, as supplemented compliance with Federal regulations to does not create an environmental risk to by Executive Order 13563, Improving the Small Business and Agriculture health or risk to safety that may Regulation and Regulatory Review, and Regulatory Enforcement Ombudsman disproportionately affect children. and the Regional Small Business does not require an assessment of Indian Tribal Governments potential costs and benefits under Regulatory Fairness Boards. The Ombudsman evaluates these actions section 6(a)(3) of that Executive Order This rule does not have tribal annually and rates each agency’s 12866 or under section 1 of Executive implications under Executive Order responsiveness to small business. If you Order 13563. The Office of Management 13175, Consultation and Coordination wish to comment on actions by and Budget has not reviewed it under with Indian Tribal Governments, employees of the Coast Guard, call that those Orders. because it does not have a substantial 1–888–REG–FAIR (1–888–734–3247). direct effect on one or more Indian Although this rule restricts access to The Coast Guard will not retaliate tribes, on the relationship between the the waters encompassed by the safety against small entities that question or Federal Government and Indian tribes, zone, the effect of this rule will not be complain about this rule or any policy or on the distribution of power and significant because the local waterway or action of the Coast Guard. responsibilities between the Federal users will be notified via public Government and Indian tribes. Broadcast Notice to Mariners to ensure Collection of Information the safety zone will result in minimum This rule calls for no new collection Energy Effects impact. The entities most likely to be of information under the Paperwork We have analyzed this rule under affected are pleasure craft engaged in Reduction Act of 1995 (44 U.S.C. 3501– Executive Order 13211, Actions recreational activities. 3520). Concerning Regulations That

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Significantly Affect Energy Supply, For the reasons discussed in the (d) Effective period. This section is Distribution, or Use. We have preamble, the Coast Guard amends 33 effective from 9 p.m. through 10 p.m. on determined that it is not a ‘‘significant CFR part 165 as follows: October 7, 2011. energy action’’ under that order because PART 165—REGULATED NAVIGATION Dated: September 21, 2011. it is not a ‘‘significant regulatory action’’ Cynthia L. Stowe, under Executive Order 12866 and is not AREAS AND LIMITED ACCESS AREAS Captain, U.S. Coast Guard, Captain of the likely to have a significant adverse effect Port San Francisco. on the supply, distribution, or use of ■ 1. The authority citation for part 165 [FR Doc. 2011–25545 Filed 10–3–11; 8:45 am] energy. The Administrator of the Office continues to read as follows: BILLING CODE 9110–04–P of Information and Regulatory Affairs Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. has not designated it as a significant Chapter 701; 50 U.S.C. 191, 195; 33 CFR energy action. Therefore, it does not 1.05–1(g), 6.04–1, 6.04–6, and 160.5; Pub. L. DEPARTMENT OF HOMELAND 107–295, 116 Stat. 2064; Department of require a Statement of Energy Effects SECURITY under Executive Order 13211. Homeland Security Delegation No. 0170.1. ■ Coast Guard Technical Standards 2. Add temporary § 165.T11–437 to read as follows: The National Technology Transfer 33 CFR Part 165 and Advancement Act (NTTAA) § 165.T11–437 Safety zone; Monte Foundation Fireworks Extravaganza, Aptos, [Docket No. USCG–2011–0838] (15 U.S.C. 272 note) directs agencies to CA. use voluntary consensus standards in RIN 1625–AA00 their regulatory activities unless the (a) Location. This temporary safety agency provides Congress, through the zone is established for the waters Safety Zone; IJSBA World Finals; Lower Colorado River, Lake Havasu, Office of Management and Budget, with around Seacliff State Beach Pier near AZ an explanation of why using these Aptos, CA. The fireworks launch site will be located at position 36°58′11.2″ standards would be inconsistent with AGENCY: Coast Guard, DHS. N, 121°54′36.79″ W (NAD 83). The applicable law or otherwise impractical. ACTION: Temporary final rule. Voluntary consensus standards are temporary safety zone applies to the technical standards (e.g., specifications nearest point of the Seacliff State Beach SUMMARY: ° ′ ″ The Coast Guard is of materials, performance, design, or Pier at position 36 58 11.2 N, ° ′ ″ establishing a temporary safety zone on operation; test methods; sampling 121 54 36.79 W (NAD 83). From 9 p.m. the navigable waters of Lake Havasu on procedures; and related management until 10 p.m. on October 7, 2011, the the lower Colorado River in support of systems practices) that are developed or area to which the temporary safety zone the International Jet Sports Boating adopted by voluntary consensus applies will encompass the navigable Association (IJSBA) World Finals. This standards bodies. This rule does not use waters around the pier within a radius temporary safety zone is necessary to technical standards. Therefore, we did of 1,000 feet. provide for the safety of the not consider the use of voluntary (b) Definitions. As used in this participants, crew, spectators, consensus standards. section, ‘‘designated representative’’ participating vessels, and other vessels means a Coast Guard Patrol and users of the waterway. Persons and Environment Commander, including a Coast Guard vessels are prohibited from entering We have analyzed this rule under coxswain, petty officer, or other officer into, transiting through, or anchoring Department of Homeland Security on a Coast Guard vessel or a Federal, within this temporary safety zone unless Management Directive 023–01 and State, or local officer designated by or authorized by the Captain of the Port or Commandant Instruction M16475.lD, assisting the Captain of the Port San his designated representative. which guide the Coast Guard in Francisco (COTP) in the enforcement of DATES: This rule is effective from 6 a.m. complying with the National the safety zone. on October 1, 2011 through 7 p.m. on Environmental Policy Act of 1969 (c) Regulations. (1) Under the general October 9, 2011. (NEPA) (42 U.S.C. 4321–4370f), and regulations in 33 CFR part 165, subpart ADDRESSES: Documents indicated in this have concluded this action is one of a C, entry into, transiting, or anchoring preamble as being available in the category of actions that do not within this safety zone is prohibited docket are part of docket USCG–2011– individually or cumulatively have a unless authorized by the COTP or the 0838 and are available online by going significant effect on the human COTP’s designated representative. to http://www.regulations.gov, inserting environment. This rule is categorically (2) The safety zone is closed to all USCG–2011–0838 in the ‘‘Keyword’’ excluded, under figure 2–1, paragraph vessel traffic, except as may be box, and then clicking ‘‘Search.’’ They (34)(g), of the Instruction. This rule permitted by the COTP or a designated are also available for inspection or involves establishing, disestablishing, or representative. copying at the Docket Management changing Regulated Navigation Areas (3) Vessel operators desiring to enter Facility (M–30), U.S. Department of and security or safety zones. An or operate within the safety zone must Transportation, West Building Ground environmental analysis checklist and a contact the COTP or a designated Floor, Room W12–140, 1200 New Jersey categorical exclusion determination are representative to obtain permission to Avenue, SE., Washington, DC 20590, available in the docket where indicated do so. Vessel operators given permission between 9 a.m. and 5 p.m., Monday under ADDRESSES. to enter or operate in the safety zone through Friday, except Federal holidays. List of Subjects in 33 CFR Part 165 must comply with all directions given to FOR FURTHER INFORMATION CONTACT: If them by the COTP or a designated you have questions on this temporary Harbors, Marine safety, Navigation representative. Persons and vessels may rule, call or e-mail Petty Officer Shane (water), Reporting and recordkeeping request permission to enter the safety Jackson, Waterways Management, U.S. requirements, Security measures, and zone on VHF–16 or through the 24-hour Coast Guard Sector San Diego, Coast Waterways. Command Center at (415) 399–3547. Guard; telephone 619–278–7267, e-mail

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[email protected]. If you have 34°28.32′ N, 114°21.71′ W; along the This safety zone will not have a questions on viewing the docket, call shoreline to significant economic impact on a Renee V. Wright, Program Manager, 34°28.49′ N, 114°21.33′ W. substantial number of small entities for Docket Operations, telephone 202–366– This safety zone is necessary to the following reasons. Vessel traffic can 9826. provide for the safety of the pass safely around the safety zone. SUPPLEMENTARY INFORMATION: participants, crew, spectators, Before the activation of the zone, the participating vessels, and other vessels Coast Guard would publish a local Regulatory Information and users of the waterway. Persons and notice to mariners (LNM). The Coast Guard is issuing this vessels will be prohibited from entering Assistance for Small Entities temporary final rule without prior into, transiting through, or anchoring notice and opportunity to comment within this safety zone unless Under section 213(a) of the Small pursuant to authority under section 4(a) authorized by the Captain of the Port or Business Regulatory Enforcement of the Administrative Procedure Act his designated representative. Fairness Act of 1996 (Pub. L. 104–121), (APA) (5 U.S.C. 553(b)). This provision we offer to assist small entities in Regulatory Analyses authorizes an agency to issue a rule understanding the rule so that they can without prior notice and opportunity to We developed this rule after better evaluate its effects on them and comment when the agency for good considering numerous statutes and participate in the rulemaking process. cause finds that those procedures are executive orders related to rulemaking. Small businesses may send comments ‘‘impracticable, unnecessary, or contrary Below we summarize our analyses on the actions of Federal employees to the public interest.’’ Under 5 U.S.C. based on 13 of these statutes or who enforce, or otherwise determine 553(b)(B), the Coast Guard finds that executive orders. compliance with, Federal regulations to good cause exists for not publishing a the Small Business and Agriculture Regulatory Planning and Review notice of proposed rulemaking (NPRM) Regulatory Enforcement Ombudsman with respect to this rule because prior This rule is not a significant and the Regional Small Business notice was impracticable. The logistical regulatory action under section 3(f) of Regulatory Fairness Boards. The details of the marine event were not Executive Order 12866, Regulatory Ombudsman evaluates these actions finalized or presented to the Coast Planning and Review, as supplemented annually and rates each agency’s Guard in enough time to draft and by Executive Order 13563, Improving responsiveness to small business. If you publish an NPRM. As such, the event Regulation and Regulatory Review, and wish to comment on actions by will occur before the rulemaking does not require an assessment of employees of the Coast Guard, call 1– process could be completed. potential costs and benefits under 888–REG–FAIR (1–888–734–3247). The Under 5 U.S.C. 553(d)(3), the Coast section 6(a)(3) of that Executive Order Coast Guard will not retaliate against Guard finds that good cause exists for 12866 or under section 1 of Executive small entities that question or complain making this rule effective less than 30 Order 13563. The Office of Management about this rule or any policy or action days after publication in the Federal and Budget has not reviewed it under of the Coast Guard. Register. Delaying the effective date those Orders. Collection of Information would be contrary to the public interest This determination is based on the because immediate action is needed to size and location of the safety zone. This rule calls for no new collection ensure public safety. Commercial vessels will not be of information under the Paperwork hindered by the safety zone. Reduction Act of 1995 (44 U.S.C. 3501– Basis and Purpose Recreational vessels will not be allowed 3520). The International Jet Sports Boating to transit through the designated safety Federalism Association is sponsoring the IJSBA zone during the specified times. World Finals. The event will consist of Small Entities A rule has implications for federalism 300 to 750 personal watercrafts racing in under Executive Order 13132, a circular course. The race will be Under the Regulatory Flexibility Act Federalism, if it has a substantial direct broken down into heats of one to (5 U.S.C. 601–612), we have considered effect on State or local governments and twenty. The sponsor will provide five whether this rule would have a would either preempt State law or course marshal and rescue vessels, as significant economic impact on a impose a substantial direct cost of well as four perimeter safety boats for substantial number of small entities. compliance on them. We have analyzed the duration of this event. This The term ‘‘small entities’’ comprises this rule under that Order and have temporary safety zone is necessary to small businesses, not-for-profit determined that it does not have provide for the safety of the organizations that are independently implications for federalism. participants, crew, spectators, owned and operated and are not participating vessels, and other vessels dominant in their fields, and Unfunded Mandates Reform Act and users of the waterway. governmental jurisdictions with The Unfunded Mandates Reform Act populations of less than 50,000. Discussion of Rule of 1995 (2 U.S.C. 1531–1538) requires The Coast Guard certifies under 5 Federal agencies to assess the effects of The Coast Guard is establishing a U.S.C. 605(b) that this rule will not have their discretionary regulatory actions. In temporary safety zone that will be a significant economic impact on a particular, the Act addresses actions enforced from 6 a.m. through 7 p.m. on substantial number of small entities. that may result in the expenditure by a October 1, 2011 through October 9, This rule will affect the following State, local, or tribal government, in the 2011. entities, some of which might be small aggregate, or by the private sector of The limits of the safety zone will be entities: the owners or operators of $100,000,000 or more in any one year. as follows: vessels intending to transit or anchor in Though this rule will not result in such 34°28.49′ N, 114°21.33′ W; a portion of the lower Colorado River at an expenditure, we do discuss the 34°28.55′ N, 114°21.56′ W; Lake Havasu from October 1, 2011 effects of this rule elsewhere in this 34°28.43′ N, 114°21.81′ W; through October 9, 2011. preamble.

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Taking of Private Property technical standards (e.g., specifications 7 p.m. on October 1, 2011 through This rule will not cause a taking of of materials, performance, design, or October 9, 2011. If the event concludes private property or otherwise have operation; test methods; sampling prior to the scheduled termination time, taking implications under Executive procedures; and related management the Captain of the Port will cease Order 12630, Governmental Actions and systems practices) that are developed or enforcement of this safety zone and will Interference with Constitutionally adopted by voluntary consensus announce that fact via Broadcast Notice Protected Property Rights. standards bodies. to Mariners. This rule does not use technical (c) Definitions. The following Civil Justice Reform standards. Therefore, we did not definition applies to this section: This rule meets applicable standards consider the use of voluntary consensus designated representative, means any in sections 3(a) and 3(b)(2) of Executive standards. commissioned, warrant, or petty officer of the Coast Guard on board Coast Order 12988, Civil Justice Reform, to Environment minimize litigation, eliminate Guard, Coast Guard Auxiliary, and ambiguity, and reduce burden. We have analyzed this rule under local, state, and federal law enforcement Department of Homeland Security vessels who have been authorized to act Protection of Children Management Directive 023–01 and on the behalf of the Captain of the Port. We have analyzed this rule under Commandant Instruction M16475.lD, (d) Regulations. (1) Entry into, transit Executive Order 13045, Protection of which guide the Coast Guard in through or anchoring within this safety Children from Environmental Health complying with the National zone is prohibited unless authorized by Risks and Safety Risks. This rule is not Environmental Policy Act of 1969 the Captain of the Port of San Diego or an economically significant rule and (NEPA) (42 U.S.C. 4321–4370f), and his designated representative. does not create an environmental risk to have concluded this action is one of a (2) Mariners requesting permission to health or risk to safety that may category of actions that do not transit through the safety zone may disproportionately affect children. individually or cumulatively have a request authorization to do so from the significant effect on the human Indian Tribal Governments Patrol Commander (PATCOM). The environment. This rule is categorically PATCOM may be contacted on VHF–FM This rule does not have tribal excluded, under figure 2–1, paragraph Channel 16. implications under Executive Order (34)(g), of the Instruction. This rule (3) All persons and vessels shall 13175, Consultation and Coordination involves the establishment of a safety comply with the instructions of the with Indian Tribal Governments, zone. An environmental analysis Coast Guard Captain of the Port or his because it does not have a substantial checklist and a categorical exclusion designated representative. direct effect on one or more Indian determination are available in the (4) Upon being hailed by U.S. Coast tribes, on the relationship between the docket where indicated under Guard patrol personnel by siren, radio, Federal Government and Indian tribes, ADDRESSES. flashing light, or other means, the or on the distribution of power and operator of a vessel shall proceed as List of Subjects in 33 CFR Part 165 responsibilities between the Federal directed. Government and Indian tribes. Harbors, Marine safety, Navigation (5) The Coast Guard may be assisted Energy Effects (water), Reporting and recordkeeping by other federal, state, or local agencies. requirements, Security measures, Dated: September 17, 2011. We have analyzed this rule under Waterways. Executive Order 13211, Actions P.J. Hill, For the reasons discussed in the Concerning Regulations That Captain, U.S. Coast Guard, Acting Captain preamble, the Coast Guard amends 33 Significantly Affect Energy Supply, of the Port San Diego. CFR part 165 as follows: Distribution, or Use. We have [FR Doc. 2011–25547 Filed 9–29–11; 4:15 pm] determined that it is not a ‘‘significant PART 165—REGULATED NAVIGATION BILLING CODE 9110–04–P energy action’’ under that order because AREAS AND LIMITED ACCESS AREAS it is not a ‘‘significant regulatory action’’ under Executive Order 12866 and is not ■ 1. The authority citation for part 165 DEPARTMENT OF HOMELAND likely to have a significant adverse effect continues to read as follows: SECURITY on the supply, distribution, or use of Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Coast Guard energy. The Administrator of the Office Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; of Information and Regulatory Affairs 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. 33 CFR Part 165 has not designated it as a significant 107–295, 116 Stat. 2064; Department of energy action. Therefore, it does not Homeland Security Delegation No. 0170.1. [Docket No. USCG–2010–0842] require a Statement of Energy Effects ■ 2. Add temporary § 165.T11–438 to RIN 1625–AA00 under Executive Order 13211. read as follows: Safety Zones; Annual Firework Technical Standards § 165.T11–438 IJSBA World Finals; Lower Displays Within the Captain of the The National Technology Transfer Colorado River, Lake Havasu, AZ Port, Puget Sound Area of and Advancement Act (NTTAA) (15 (a) Location. The limits of the safety Responsibility U.S.C. 272 note) directs agencies to use zone will be as follows: voluntary consensus standards in their 34°28.49′ N, 114°21.33′ W; AGENCY: Coast Guard, DHS. regulatory activities unless the agency 34°28.55′ N, 114°21.56′ W; ACTION: Final rule. provides Congress, through the Office of 34°28.43′ N, 114°21.81′ W; Management and Budget, with an 34°28.32′ N, 114°21.71′ W; along the SUMMARY: The Coast Guard is amending explanation of why using these shoreline to our regulations to correct the standards would be inconsistent with 34°28.49′ N, 114°21.33′ W. coordinates for four firework displays. applicable law or otherwise impractical. (b) Enforcement Period. This section This action is necessary to prevent Voluntary consensus standards are will be enforced from 6 a.m. through injury and to protect life and property

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of the maritime public from the hazards Basis and Purpose Small Entities associated with the firework displays. During the enforcement periods, entry The coordinates currently codified Under the Regulatory Flexibility Act into, transit through, mooring, or under this section do not correctly (5 U.S.C. 601–612), we have considered anchoring within these zones is reflect the location of where the whether this rule would have a prohibited unless authorized by the displays actually occur. The Coast significant economic impact on a Captain of the Port, Puget Sound or Guard is amending the coordinates to substantial number of small entities. Designated Representative. list the correct coordinates for the The term ‘‘small entities’’ comprises DATES: This rule is effective November locations. small businesses, not-for-profit 3, 2011. organizations that are independently Background owned and operated and are not ADDRESSES: Documents indicated in this dominant in their fields, and preamble as being available in the On February 25, 2010 we published a governmental jurisdictions with docket are part of docket USCG–2010– notice of proposed rulemaking (NPRM) populations of less than 50,000. 0842 and are available online by going entitled Safety Zones; Annual Firework to http://www.regulations.gov, inserting Displays Within the Captain of the Port, Therefore, the Coast Guard certifies USCG–2010–0842 in the ‘‘Keyword’’ Puget Sound Area of Responsibility in under 5 U.S.C. 605(b) that this proposed box, and then clicking ‘‘Search.’’ They the Federal Register (75 FR 8566). We rule, if promulgated, will not have a are also available for inspection or received 00 comments on the proposed significant economic impact on a copying at the Docket Management rule. On June 15, 2010 the Coast Guard substantial number of small entities. Facility (M–30), U.S. Department of published a document in the Federal This rule would not affect any small Transportation, West Building Ground Register (75 FR 33700), establishing entities since this rule does not involve Floor, Room W12–140, 1200 New Jersey safety zones for fireworks displays creating any new safety zones but Avenue, SE., Washington, DC 20590, within the Captain of the Port, Puget instead amends the current coordinates between 9 a.m. and 5 p.m., Monday Sound Area of Responsibility. That to reflect the appropriate coordinates of through Friday, except Federal holidays. notice provided a table which listed the the locations. FOR FURTHER INFORMATION CONTACT: If coordinates of each firework display. Assistance for Small Entities you have questions on this rule, call or The submitted coordinates differed from e-mail Ensign Anthony P. LaBoy, USCG the actual coordinates for four of the Under section 213(a) of the Small Sector Puget Sound Waterways fireworks displays. This rule changes Business Regulatory Enforcement Management Division, Coast Guard; the coordinates listed for four displays Fairness Act of 1996 (Pub. L. 104–121), telephone 206–217–6323, e-mail to the proper position. During the we offer to assist small entities in [email protected]. If enforcement periods, entry into, transit understanding the rule so that they can you have questions on viewing the through, mooring, or anchoring within better evaluate its effects on them and docket, call Renee V. Wright, Program these zones is prohibited unless participate in the rulemaking process. Manager, Docket Operations, telephone authorized by the Captain of the Port, 202–366–9826. Puget Sound or Designated Collection of Information SUPPLEMENTARY INFORMATION: Representative. This rule calls for no new collection Regulatory Information Discussion of Rule of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501– The Coast Guard is issuing this final The Coast Guard is amending 33 CFR 3520). rule without prior notice and 165.1332 to correct coordinates listed opportunity to comment pursuant to for four firework displays that occur Federalism authority under section 4(a) of the annually within the Captain of the Port, A rule has implications for federalism Administrative Procedure Act (APA) Puget Sound Area of Responsibility. (5 U.S.C. 553(b)). This provision under Executive Order 13132, authorizes an agency to issue a rule Regulatory Analyses Federalism, if it has a substantial direct without prior notice and opportunity to effect on State or local governments and comment when the agency for good We developed this rule after would either preempt State law or cause finds that those procedures are considering numerous statutes and impose a substantial direct cost of ‘‘impracticable, unnecessary, or contrary executive orders related to rulemaking. compliance on them. We have analyzed to the public interest.’’ Under 5 U.S.C. Below we summarize our analyses this rule under that Order and have 553(b)(B), the Coast Guard finds that based on 13 of these statutes or determined that it does not have good cause exists for not publishing a executive orders. implications for federalism. notice of proposed rulemaking (NPRM) Regulatory Planning and Review Unfunded Mandates Reform Act with respect to this rule because it is unnecessary and contrary to the public This rule is not a significant The Unfunded Mandates Reform Act interest. This action is a technical regulatory action under section 3(f) of of 1995 (2 U.S.C. 1531–1538) requires amendment to the rule to reflect the Executive Order 12866, Regulatory Federal agencies to assess the effects of appropriate coordinates of these Planning and Review, as supplemented their discretionary regulatory actions. In locations. The new coordinates listed by Executive Order 13563, Improving particular, the Act addresses actions below are the actual location that these Regulation and Regulatory Review, and that may result in the expenditure by a displays have occurred without does not require an assessment of State, local, or tribal government, in the comment or objections from the potential costs and benefits under aggregate, or by the private sector of maritime public in past years. This section 6(a)(3) of that Executive Order $100,000,000 (adjusted for inflation) or action is also necessary to prevent 12866 or under section 1 of Executive more in any one year. Though this rule injury and to protect life and property Order 13563. The Office of Management will not result in such an expenditure, of the maritime public from the hazards and Budget has not reviewed it under we do discuss the effects of this rule associated with the firework displays. that those Orders. elsewhere in this preamble.

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Taking of Private Property determined that it is not a ‘‘significant which guide the Coast Guard in This rule will not cause a taking of energy action’’ under that order because complying with the National private property or otherwise have it is not a ‘‘significant regulatory action’’ Environmental Policy Act of 1969 taking implications under Executive under Executive Order 12866, as (NEPA) (42 U.S.C. 4321–4370f), and Order 12630, Governmental Actions and supplemented by Executive Order have concluded this action is one of a Interference with Constitutionally 13563, and is not likely to have a category of actions that do not Protected Property Rights. significant adverse effect on the supply, individually or cumulatively have a distribution, or use of energy. The significant effect on the human Civil Justice Reform Administrator of the Office of environment. This rule is categorically This rule meets applicable standards Information and Regulatory Affairs has excluded, under figure 2–1, paragraph in sections 3(a) and 3(b)(2) of Executive not designated it as a significant energy (34)(g), of the Instruction. This rule Order 12988, Civil Justice Reform, to action. Therefore, it does not require a involves amending the coordinates of minimize litigation, eliminate Statement of Energy Effects under four firework displays codified under 33 ambiguity, and reduce burden. Executive Order 13211. CFR 165.1332. An environmental analysis checklist and a categorical Technical Standards Protection of Children exclusion determination are available in We have analyzed this rule under The National Technology Transfer the docket where indicated under Executive Order 13045, Protection of and Advancement Act (NTTAA) (15 ADDRESSES. Children from Environmental Health U.S.C. 272 note) directs agencies to use List of Subjects in 33 CFR Part 165 Risks and Safety Risks. This rule is not voluntary consensus standards in their an economically significant rule and regulatory activities unless the agency Harbors, Marine safety, Navigation does not create an environmental risk to provides Congress, through the Office of (water), Reporting and recordkeeping health or risk to safety that may Management and Budget, with an requirements, Security measures, disproportionately affect children. explanation of why using these Waterways. standards would be inconsistent with Indian Tribal Governments For the reasons discussed in the applicable law or otherwise impractical. preamble, the Coast Guard amends 33 This rule does not have tribal Voluntary consensus standards are CFR part 165, as follows: implications under Executive Order technical standards (e.g., specifications 13175, Consultation and Coordination of materials, performance, design, or PART 165—REGULATED NAVIGATION with Indian Tribal Governments, operation; test methods; sampling AREAS AND LIMITED ACCESS AREAS because it does not have a substantial procedures; and related management direct effect on one or more Indian systems practices) that are developed or ■ 1. The authority citation for part 165 tribes, on the relationship between the adopted by voluntary consensus continues to read as follows: Federal Government and Indian tribes, standards bodies. Authority: 33 U.S.C 1231; 46 U.S.C. or on the distribution of power and This rule does not use technical Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; responsibilities between the Federal standards. Therefore, we did not 33 CFR 1.05–1(g), 6.04–1, 6.04–6, 160.5; Pub. Government and Indian tribes. consider the use of voluntary consensus L. 107–295, 116 Stat. 2064; Department of standards. Homeland Security Delegation No. 0170.1 Energy Effects We have analyzed this rule under Environment ■ 2. In § 165.1332, revise the following Executive Order 13211, Actions We have analyzed this rule under entries in the table in (a)(1) to read as Concerning Regulations That Department of Homeland Security follows: Significantly Affect Energy Supply, Management Directive 023–01 and (a) * * * Distribution, or Use. We have Commandant Instruction M16475.lD, (1) * * *

Event name Event location Latitude Longitude

City of Anacortes ...... Fidalgo Bay ...... 48°30.016′ N 122°36.154′ W

******* City of Kenmore Fireworks ...... Lake Forest Park ...... 47°45.25′ N 122°15.75′ W

******* Vashon Island Fireworks ...... Quartermaster Harbor ...... 47°24.0′ N 122°27.0′ W

******* Friday Harbor Independence ...... Friday Harbor ...... 48°32.255′ N 123°0.654′ W

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* * * * * established in 1929, but at that time road. Commenters often noted that this Dated: September 12, 2011. included only the mountains and was particularly true for families with S.J. Ferguson, several of the lakes at their base. In young children and visitors who are not 1943, Jackson Hole National Monument experienced bicyclists. Captain, U.S. Coast Guard, Captain of the was established by presidential Among the issues that were raised Port, Puget Sound. proclamation, including much of the during the planning process were the [FR Doc. 2011–25344 Filed 10–3–11; 8:45 am] valley to the east of the mountains. In potential effects of the pathway system BILLING CODE 9110–04–P 1950, Congress combined the 1929 park on the park’s wildlife. Although wildlife and the national monument into the is abundant and often visible from park present-day national park. roads, it is well documented that DEPARTMENT OF THE INTERIOR The Park supports diverse and animals respond differently to the abundant populations of wildlife, and is presence of pedestrians and bicyclists National Park Service world renowned for its opportunities to than they do to motor vehicle traffic. view elk, moose, bison, pronghorn, The potential for reducing the 36 CFR Part 7 grizzly and black bears, grey wolves, effectiveness of habitat and displacing RIN 1024–AD75 and coyotes. Other species such as wildlife from areas located near the trumpeter swans, bald eagles, and many pathways was a significant concern for Special Regulations; Areas of the species of waterfowl and small many individuals and organizations that National Park System, Grand Teton mammals are also abundant. commented during the planning National Park, Bicycle Routes, Fishing Visitors to the Park typically process. Furthermore, in light of the and Vessels participate in several types of activities, Park’s abundant wildlife, concerns were including: scenic touring, viewing raised regarding the potential for AGENCY: National Park Service, Interior. wildlife, hiking, mountain climbing, fly surprise and potentially dangerous ACTION: Final rule. fishing, float trips, bicycling, and other encounters between bicyclists and large forms of recreation consistent with animals, including grizzly bears. SUMMARY: This rule designates certain enjoyment of the Park’s resources. The The ROD sets forth the Park’s decision multi-use pathways in Grand Teton Park includes several major developed for the development of an extended National Park (Park) as routes for areas, five campgrounds, almost 200 system of multi-use pathways within bicycle use. National Park Service (NPS) miles of hiking trails, 140 miles of the park. The system will include 39 regulations require issuance of a special paved roads, and 70 miles of unpaved miles of pathways between the south regulation to designate bicycle routes roads. Visitation to the Park has park boundary and Colter Bay via the that are located off park roads and remained relatively constant over the Teton Park Road, as well as a 3-mile outside developed areas. The first two last decade averaging approximately 2.5 segment along the Moose-Wilson Road segments of a planned multi-use million recreational visitors, mostly between the Granite Canyon Entrance pathway system have been constructed between the months of May and and the Laurance S. Rockefeller and are generally located within 50 feet September. Preserve. In general, pathways will be of existing park roads. Separating In April 2000, the Park undertook a constructed within 50 feet of the road, bicycle traffic from lanes used for motor transportation study to collect basic except that the segments between North vehicle travel will reduce real and information regarding transportation Jenny Lake Junction and Colter Bay, and perceived safety hazards, which will issues in the Park. The study along the Moose-Wilson Road will be enhance opportunities for non- subsequently served as a foundation for constructed in very close proximity to motorized enjoyment of the park and a transportation planning process that the roads, generally within the existing encourage the use of alternate was initiated in September 2001. The engineered and previously disturbed transportation. This rule also revises Transportation Plan/Final road corridors. NPS special regulations regarding Environmental Impact Statement (FEIS) The preferred alternative in the FEIS, fishing and vessels in certain Park was released in September 2006. A subsequently adopted in the ROD, waters to reflect current operating Record of Decision (ROD) selecting addressed the concerns regarding practices and management objectives. Alternative 3a was signed on March 12, wildlife through a combination of DATES: This regulation is effective 2007, and a notice of the decision was research and monitoring, construction November 3, 2011. published in the Federal Register on phasing, and the requirement that April 24, 2007 (72 FR 20365). A full certain portions of the pathway system FOR FURTHER INFORMATION CONTACT: Gary description of the alternatives that were would be constructed within the M. Pollock, Management Assistant, considered, the environmental impacts existing road corridors. Specifically, the Grand Teton National Park, 307–739– associated with the project, and public ROD includes a significant emphasis on 3428. involvement can be found online at wildlife research and monitoring to SUPPLEMENTARY INFORMATION: http://www.nps.gov/grte/parkmgmt/ provide a detailed understanding of the tranplan. effects of pathway development. Background Although the planning effort and ROD Monitoring and research activities began Grand Teton National Park is located addressed a variety of transportation- in 2007 to provide a pre-construction in northwest Wyoming and related issues, a major focus was on the baseline, and continued through 2010. encompasses approximately 310,000 development of a system of multi-use The phased approach to construction of acres. Located just south of Yellowstone pathways to improve opportunities for the pathway system will allow National Park, Grand Teton is at the non-motorized activities within the information obtained from the research heart of the Greater Yellowstone Park. Bicycling has become increasingly and monitoring program to be integrated Ecosystem, and includes the iconic popular in the Park, and many visitors into the design and operation of future mountains of the Teton Range, the broad and others who commented during the pathway segments. valley of Jackson Hole, numerous lakes, planning process expressed concerns The first phase of pathways was and a 40-mile segment of the Snake over the risks that are present when constructed during the summer and fall River. The park was originally bicycles and motor vehicles share the of 2008. These segments extend from

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the Dornan’s inholding near Park conveyed to the United States in rulemaking without affecting the intent headquarters in Moose along the Teton November 2007. This rule removes the of the rule. Park Road to the South Jenny Lake area, now-unnecessary provision that allowed Summary of Economic Analysis a distance of approximately 8 miles. motorboat use on Phelps Lake. Additional segments may be This rule also removes the provision The NPS published a report in March constructed and designated as funds in 36 CFR 7.22(b) that allows authorized 2009 entitled ‘‘Cost-Benefit and become available. marine bait dealers, all of which are Regulatory Flexibility Analyses: Proposed Regulations Designating Rationale for the Final Rule Park concessioners, to keep certain species of fish taken from Jackson Lake Pathways for Multi-Use in Grand Teton This rule complies with 36 CFR 4.30, and sell them as bait. The NPS National Park.’’ The report presents the which requires the NPS to designate determined this provision to be cost-benefit and regulatory flexibility bicycle routes outside of developed unnecessary and inconsistent with NPS analyses of the regulatory action areas through the promulgation of a Management Policies, and the practice associated with designating certain special regulation. Section 4.30 further was discontinued several years ago. pathways for multi-use, including specifies that such routes may be bicycle use, pursuant to the Grand designated only upon ‘‘* * * a written Summary of and Responses to Public Teton National Park Transportation Plan determination that such use is Comments (NPS 2006). Quantitative analyses were consistent with the protection of a park The NPS published a proposed rule not conducted due to a lack of available area’s natural, scenic and aesthetic on October 5, 2009 (74 FR 51099) and data, and because the additional cost of values, safety considerations and accepted public comments through conducting quantitative analyses was management objectives and will not December 4, 2009. Comments were not considered to be reasonably related disturb wildlife or park resources.’’ The accepted through the mail, hand to the expected increase in the quantity Superintendent has made such a delivery, and through the Federal and/or quality of relevant information. determination and found that the eRulemaking Portal: http:// Nevertheless, the NPS believes that the designation of the pathway segments www.regulations.gov. A total of three (3) cost-benefit and regulatory flexibility between Moose and South Jenny Lake as comments were received, all of them analyses provide an adequate a route for bicycle use is consistent with from individuals. assessment of all relevant costs and the requirements of 36 CFR 4.30. One of the comments supported the benefits associated with the regulatory This rule also makes several changes action. to the special regulations for the Park, proposed rule but opposed NPS regulation of bicycle use and other uses. The results of the cost-benefit analysis as set forth in 36 CFR 7.22, to reflect indicate that the costs of the regulatory current operating practices and changes The NPS recognizes that individuals have a variety of opinions regarding the action are justified by the associated to the Park’s land status. The rule closes benefits. Additionally, this regulatory Phelps Lake to the operation of motor regulation of activities within units of action will not have an annual boats, consistent with all other the National Park System, but notes that economic effect of $100 million or more, backcountry lakes in the Park. This such regulations are necessary for the and will not adversely affect an change is prompted by the change in proper administration of such areas. economic sector, productivity, jobs, the land status for the area surrounding the A second comment supported the environment, or other units of southern half of the lake. proposed rule and noted that the Prior to November 2007, these lands pathway system will benefit persons government. This regulatory action will were a private inholding within the park with disabilities. The NPS agrees with improve economic efficiency. known as the JY Ranch, owned by the comment. The full report is available for review Laurance S. Rockefeller and, subsequent A third comment supported the on the Park Web site, http:// to his death, by his estate. The property proposed rule and suggested the www.nps.gov/grte. functioned as a family guest ranch and adoption of safety and etiquette rules for Drafting Information: The primary retreat for the Rockefeller family since pathway users, such as travelling at a author of this rule was Gary M. Pollock, the 1930s, where guests typically safe speed, keeping right except to pass, Management Assistant, Grand Teton engaged in activities such as hiking, giving a clear warning when passing, National Park. horseback riding, and boating on Phelps and moving off the trail when stopped. Compliance With Other Laws and Lake. The ranch included a boathouse The NPS will provide information to Executive Orders on the lakeshore where motorboats were pathway users on proper etiquette and Regulatory Planning and Review kept during the summer. The Park’s establish additional rules regulating the (Executive Order 12866) special regulations authorized the use of use of the pathway consistent with the motorboats on Phelps Lake, thereby requirements of 36 CFR 1.5 and 1.7. This document is not a significant allowing the JY Ranch to continue a use rule and is not subject to review by the Changes From the Proposed Rule that had existed prior to the Park’s Office of Management and Budget under establishment. No other motorboat use The term motorboat in the proposed Executive Order 12866. occurred on the lake since it was rule is changed to power-driven vessel (1) This rule will not have an effect of inaccessible to park visitors except on in the final rule, as the term power- $100 million or more on the economy. foot or horseback. driven vessel is defined by the NPS in It will not adversely affect, in a material Before his death, Mr. Rockefeller 36 CFR 1.4 and use here is consistent way, the economy, productivity, made a decision to donate the property with language in 36 CFR part 3 competition, jobs, the environment, to the United States for inclusion within pertaining to Boating and Water Use public health or safety, or State, local, the Park. In accordance with Mr. activities within NPS areas system- or tribal governments or communities. Rockefeller’s wishes, all buildings, wide. Further, the rule language in the (2) This rule will not create a serious roads, and other development were final rule is changed slightly and inconsistency or otherwise interfere removed by his estate, and a system of formatted differently than in the with an action taken or planned by trails to allow visitors to enjoy the area proposed rule to improve clarity and another agency. Since this is an agency- was constructed. The property was consistency with contemporary specific change, implementing actions

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under this rule will not interfere with Takings (Executive Order 12630) considered, the environmental impacts plans by other agencies, local Under the criteria in Executive Order associated with the project, and public government plans, policies, or controls. 12630, the rule does not have significant involvement can be found online at (3) This rule does not alter the takings implications. A taking http://www.nps.gov/grte/parkmgmt/ budgetary effects of entitlements, grants, implication assessment is not required. tranplan or by contacting the user fees, or loan programs or the rights No taking of personal property will Superintendent, Grand Teton National or obligations of their recipients. This occur as a result of this rule. Park, P.O. Drawer 170, Moose, Wyoming rule exclusively affects the use of 83012. Federalism (Executive Order 13132) bicycles and motorboats within the Information Quality Act (IQA) Park. No grants or other forms of Under the criteria in Executive Order monetary supplement are involved. 13132, the rule does not have sufficient In developing this rule we did not conduct or use a study, experiment, or (4) This rule does not raise novel legal federalism implications to warrant the survey requiring peer review under the or policy issues. This rule simply preparation of a Federalism summary IQA (Pub. L. 106–554). implements the NPS general bicycle impact statement. A Federalism regulation at 36 CFR 4.30 requiring summary impact statement is not Effects on the Energy Supply (Executive rulemaking for the designation of required. This rule only affects use of Order 13211) bicycle routes in Grand Teton National NPS administered lands and waters. It has no outside effects on other areas. This rule is not a significant energy Park. action under the definition in Executive Regulatory Flexibility Act (RFA) Civil Justice Reform (Executive Order Order 13211. A Statement of Energy 12988) Effects is not required. The Department of the Interior This rule complies with the certifies that this document will not List of Subjects in 36 CFR Part 7 requirements of Executive Order 12988. have a significant economic effect on a Specifically, this rule: National parks, Reporting and substantial number of small entities (a) Meets the criteria of section 3(a) recordkeeping requirements. under the RFA (5 U.S.C. 601 et seq.). requiring that all regulations be For the reasons given in the preamble, This certification is based on reviewed to eliminate errors and 36 CFR part 7 is amended as set forth information contained in the report ambiguity and be written to minimize below: titled ‘‘Cost-Benefit and Regulatory litigation; and Flexibility Analyses: Proposed (b) Meets the criteria of section 3(b)(2) PART 7—SPECIAL REGULATIONS, Regulations Designating Pathways for requiring that all regulations be written AREAS OF THE NATIONAL PARK Multi-Use in Grand Teton National in clear language and contain clear legal SYSTEM Park,’’ which is available for review on standards. the Park Web site at: http:// ■ 1. The authority citation for part 7 www.nps.gov/grte. Consultation With Indian Tribes continues to read as follows: (Executive Order 13175) Small Business Regulatory Enforcement Authority: 16 U.S.C. 1, 3, 9a, 460(q), Fairness Act (SBREFA) Under the criteria in Executive Order 462(k); Sec. 7.96 also issued under 36 U.S.C. 13175, we have evaluated this rule and 501–511, D.C. Code 10–137 (2001) and D.C. This rule is not a major rule under 5 determined that it has no potential Code 50–2201 (2001). U.S.C. 804(2), the SBREFA. This rule: effects on federally recognized Indian ■ 2. Amend § 7.22 to revise paragraphs (a) Does not have an annual effect on tribes. Representatives of the eleven (b)(3) and (e)(1), redesignate paragraphs the economy of $100 million or more. tribes affiliated with the Park were (e)(2) through (e)(4) as (e)(3) through (b) Will not cause a major increase in consulted during the preparation of the (e)(5), and add new paragraphs (e)(2) costs or prices for consumers, FEIS for the project. and (h) to read as follows: individual industries, Federal, State, or Paperwork Reduction Act (PRA) § 7.22 Grand Teton National Park. local government agencies, or This rule does not contain * * * * * geographic regions. information collection requirements, (b) * * * (c) Does not have significant adverse and a submission under the PRA is not (3) Bait: (i) The use or possession of effects on competition, employment, required. fish eggs or fish for bait is prohibited on investment, productivity, innovation, or or along the shores of all park waters, National Environmental Policy Act the ability of U.S.-based enterprises to except: (NEPA) compete with foreign-based enterprises. (ii) It is permissible to possess or use Unfunded Mandates Reform Act In April 2000, the Park undertook a the following dead, non-game fish as (UMRA) transportation study to collect basic bait on or along the shores of Jackson information regarding transportation Lake: This rule does not impose an issues in the Park. The study (A) Redside Shiner unfunded mandate on State, local, or subsequently served as a foundation for (B) Speckled Dace tribal governments or the private sector a transportation planning process that (C) Longnose Dace of more than $100 million per year. The was initiated in September 2001. The (D) Piute Sculpin rule does not have a significant or Transportation Plan/Final (E) Mottled Sculpin unique effect on State, local or tribal Environmental Impact Statement (FEIS) (F) Utah Chub governments or the private sector. A was released in September 2006. A (G) Utah Sucker statement containing the information Record of Decision (ROD) selecting (H) Bluehead Sucker required by the UMRA (2 U.S.C. 1531 et Alternative 3a was signed on March 12, (I) Mountain Sucker seq.) is not required. It addresses public 2007, and a notice of the decision was * * * * * use of national park lands, and imposes published in the Federal Register on (e) Vessels. (1) Power-driven vessels no requirements on other agencies or April 24, 2007 (72 FR 20365). A full are prohibited on all park waters except governments. description of the alternatives that were Jackson Lake and Jenny Lake.

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(2) On Jenny Lake: for use in the refrigeration and air D. Additional Information About the SNAP (i) Operating a power-driven vessel conditioning, solvent cleaning and fire Program 1 Appendix A—Summary of Decisions for New using a motor exceeding 7 ⁄2 suppression sectors. Acceptable Substitutes horsepower is prohibited, except: DATES: This determination is effective (ii) An NPS authorized boating on October 4, 2011. I. Listing of New Acceptable Substitutes concessioner may operate power-driven ADDRESSES: EPA has established a vessels under conditions specified by This section presents EPA’s most docket for this action under Docket ID recent acceptable listing decisions for the Superintendent. No. EPA–HQ–OAR–2003–0118 * * * * * substitutes in the refrigeration and air (continuation of Air Docket A–91–42). conditioning, solvent cleaning, and fire (h) Where may I ride a bicycle in All electronic documents in the docket Grand Teton National Park? (1) You suppression sectors. For copies of the are listed in the index at http:// full list of ozone-depleting substance may ride a bicycle on park roads, in www.regulations.gov. Although listed in parking areas, and upon designated (ODS) substitutes in all industrial the index, some information is not sectors, visit EPA’s Ozone Layer routes established within the park in publicly available, i.e., Confidential accordance with § 4.30(a) of this Protection Web site at http:// Business Information (CBI) or other www.epa.gov/ozone/snap/lists/ chapter. The following routes are information whose disclosure is designated for bicycle use: index.html. restricted by statute. Publicly available The sections below discuss each (i) The paved multi-use pathway docket materials are available either alongside Dornan Road between substitute listing in detail. Appendix A electronically at http:// contains a table summarizing today’s Dornan’s and the Teton Park Road. www.regulations.gov or in hard copy at (ii) The paved multi-use pathway listing decisions for new substitutes. the EPA Air Docket (No. A–91–42), The statements in the ‘‘Further alongside the Teton Park Road between EPA/DC, EPA West, Room 3334, 1301 Dornan Road (Dornan’s Junction) and Information’’ column in the table Constitution Ave., NW., Washington, provide additional information, but are the South Jenny Lake developed area. DC. The Public Reading Room is open (2) The Superintendent may open or not legally binding under section 612 of from 8:30 a.m. to 4:30 p.m., Monday the Clean Air Act (CAA). In addition, close designated routes, or portions through Friday, excluding legal thereof, or impose conditions or the ‘‘further information’’ may not be a holidays. The telephone number for the comprehensive list of other legal restrictions for bicycle use after taking Public Reading Room is (202) 566–1744, into consideration the location of or obligations you may need to meet when and the telephone number for the Air using the substitute. Although you are impacts on wildlife, the amount of snow Docket is (202) 566–1742. cover or other environmental not required to follow recommendations FOR FURTHER INFORMATION CONTACT: conditions, public safety, and other in the ‘‘further information’’ column of Margaret Sheppard by telephone at factors, under the criteria and the table to use a substitute consistent (202) 343–9163, by facsimile at (202) procedures of §§ 1.5 and 1.7 of this with section 612 of the CAA, EPA 343–2338, by e-mail at chapter. strongly encourages you to apply the [email protected], or by mail information when using these Dated: September 22, 2011. at U.S. Environmental Protection substitutes. In many instances, the Eileen Sobeck, Agency, Mail Code 6205J, 1200 information simply refers to standard Acting Assistant Secretary for Fish and Pennsylvania Avenue, NW., operating practices in existing industry Wildlife and Parks. Washington, DC 20460. Overnight or and/or building-code standards. [FR Doc. 2011–25394 Filed 10–3–11; 8:45 am] courier deliveries should be sent to the However, some of these statements may BILLING CODE 4310–CT–P office location at 1310 L Street, NW., refer to obligations that are enforceable 10th floor, Washington, DC 20005. or binding under federal or state For more information on the Agency’s programs other than the SNAP program. ENVIRONMENTAL PROTECTION process for administering the SNAP Many of these statements, if adopted, AGENCY program or criteria for evaluation of would not require significant changes to substitutes, refer to the original SNAP existing operating practices. 40 CFR Part 82 rulemaking published in the Federal You can find submissions to EPA for Register on March 18, 1994 (59 FR the use of the substitutes listed in this [EPA–HQ–OAR–2003–0118; FRL–9474–4] 13044). Notices and rulemakings under document and other materials RIN 2060–AG12 the SNAP program, as well as other EPA supporting the decisions in this action publications on protection of in docket EPA–HQ–OAR–2003–0118 at Protection of Stratospheric Ozone: stratospheric ozone, are available at http://www.regulations.gov. acceptability Determination 26 for EPA’s Ozone Depletion World Wide Significant New Alternatives Policy Web site at http://www.epa.gov/ozone/ A. Refrigeration and Air Conditioning Program including the SNAP portion at http:// 1. Hot Shot 2 www.epa.gov/ozone/snap/. AGENCY: Environmental Protection EPA’s decision: EPA finds Hot Shot 2 Agency (EPA). SUPPLEMENTARY INFORMATION: is acceptable as a substitute for CFC–12, ACTION: Determination of acceptability. I. Listing of New Acceptable Substitutes CFC–11, CFC–113, CFC–114, R–13B1, R– A. Refrigeration and Air Conditioning 500, R–502, HCFC–22 and HCFC blends, SUMMARY: This Determination of B. Solvent Cleaning including those containing HCFC–22 Acceptability expands the list of C. Fire Suppression and/or HCFC–142b, for use in retrofit acceptable substitutes for ozone- II. Section 612 Program equipment in: A. Statutory Requirements and Authority depleting substances under the U.S. • Centrifugal chillers for the SNAP Program • Environmental Protection Agency’s B. EPA’s Regulations Implementing Reciprocating and screw chillers (EPA) Significant New Alternatives Section 612 • Industrial process refrigeration Policy (SNAP) program. The C. How the Regulations for the SNAP • Ice skating rinks determinations concern new substitutes Program Work • Cold storage warehouses

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• Refrigerated transport concentrations, the substitute may cause substitutes in the same refrigeration and • Retail food refrigeration irregular heartbeat. The substitute could air conditioning end uses for which we • Vending machines cause asphyxiation if air is displaced by are finding it acceptable, such as HFC– • Commercial ice machines vapors in a confined space. These 134a with a GWP of 1,430, R–410A with • Residential dehumidifiers potential health effects are common to a GWP of 2,100 and R–404A with a • Household and light commercial air many refrigerants. GWP of 3,930. Flammability and conditioning and heat pumps EPA anticipates that Hot Shot 2 will toxicity risks are low, as discussed Hot Shot 2 is a blend by weight of be used consistent with the above. Thus, EPA finds Hot Shot 2 79.3 percent HFC–134a, which is also recommendations specified in the acceptable in the end uses listed above known as 1,1,1,2-tetrafluoroethane (CAS Material Safety Data Sheets (MSDSs) for because the overall environmental and Reg. No. 811–97–2), 19.5 percent HFC– the blend and for the individual human health risk posed by Hot Shot 2 125, which is also known as 1,1,1,2,2- components. For the blend, the is lower than or comparable to the risks pentafluoroethane (CAS Reg. No. 354– manufacturer recommends an posed by other substitutes found 33–6), and 1.7 percent R–600, which is acceptable exposure limit (AEL) of 1000 acceptable in the same end uses. also known as n-butane (CAS Reg. No. ppm on an 8-hour time-weighted 106–97–8). You may find the average. For both HFC–134a and HFC– 2. R–407F submission under Docket item EPA– 125, the American Industrial Hygiene EPA’s decision: EPA finds R–407F is HQ–OAR–2003–0118–0271 at http:// Association (AIHA) recommends acceptable as a substitute for HCFC–22 www.regulations.gov. workplace environmental exposure and HCFC blends, including those Environmental information: Hot Shot limits (WEELs) of 1000 ppm on an 8- containing HCFC–22 and/or HCFC– 2 has no ozone depletion potential hour time-weighted average. Similarly, 142b, for use in new and retrofit (ODP). Its components (HFC–134a, for R–600 the American Conference of equipment in: HFC–125, and R–600) have 100-year Governmental Industrial Hygienists • Industrial process refrigeration integrated (100-yr) global warming (ACGIH) has established a threshold • Ice skating rinks potentials (GWPs) of 1,430,1 3,500, and limit value (TLV) of 1,000 ppm on an • Industrial process air conditioning 4 respectively. If these values are 8-hour time-weighted average. The • Cold storage warehouses weighted by mass percentage, then Hot National Institute for Occupational • Refrigerated transport Shot 2 has a GWP of about 1,820. Of the Safety and Health (NIOSH) has a • Retail food refrigeration • three components of Hot Shot 2, R–600 recommended exposure limit (REL) of Commercial ice machines is defined as a volatile organic • Household refrigerators and freezers 800 ppm for R–600 on a 10-hour time- • compound (VOC) under CAA weighted average. EPA anticipates that Motor vehicle air conditioning regulations (see 40 CFR 51.100(s)) (buses and passenger trains only) users will be able to meet workplace • addressing the development of State exposure limits (WEELs, TLVs, RELs Household and light commercial air Implementation Plans (SIPs) to attain and manufacturer AELs) and address conditioning and heat pumps and maintain the national ambient air R–407F, marketed under the trade potential health risks by following ® ® quality standards. The emissions of this name Genetron LT or Genetron requirements and recommendations in TM refrigerant will be limited given it is the MSDS and other safety precautions Performax LT, is a weighted blend of subject to the venting prohibition under common to the refrigeration and air 30 percent HFC–32, which is also section 608(c)(2) of the CAA and EPA’s conditioning industry. known as difluoromethane (CAS Reg. implementing regulations codified at 40 Comparison to other refrigerants: Hot No. 75–10–5), 30 percent HFC–125, CFR 82.154(a)(1).2 Considering the Shot 2 is not ozone-depleting in contrast which is also known as 1,1,1,2,2- small expected emissions of this to CFC–12, CFC–11, CFC–113, CFC–114 pentafluoroethane (CAS Reg. No. 354– refrigerant and particularly of the VOC (with ODPs ranging from 0.58 to 1.0 3), 33–6), and 40 percent HFC–134a, which component, use of Hot Shot 2 is not R–13B1 (with an ODP of 15.9), HCFC– is also known as 1,1,1,2- expected to pose any significant adverse 22 (with an ODP of 0.04), R–500 (with tetrafluoroethane (CAS Reg. No. 811– impacts on local air quality. an ODP of 0.074) and R–502 (with an 97–2). You may find the submission Flammability information: While the ODP of 0.334), the ozone-depleting under Docket item EPA–HQ–OAR– component R–600, isobutane, is a substances which it replaces, and 2003–0118–0264 at http:// hydrocarbon that is flammable, Hot Shot comparable to a number of other www.regulations.gov. 2 as formulated and in the worst-case acceptable non-ozone-depleting Environmental information: R–407F fractionation formulation is not substitutes for these end uses such as has no ODP. HFC–32, HFC–125, and flammable. HFC–134a, R–410A, and R–404A. Hot HFC–134a have GWPs of 675, 3500, and Toxicity and exposure data: Potential Shot 2’s GWP of about 1,820 is lower 1430, respectively. If these values are health effects of this substitute include than or comparable to those of the weighted by mass percentage, then R– drowsiness or dizziness. The substitute substances it is replacing, including 407F has a GWP of about 1,820. The may also irritate the skin or eyes or CFC–12, CFC–11, CFC–113, CFC–114, contribution of this refrigerant blend to cause frostbite. At sufficiently high R–13B1, R–500, R–502, and HCFC–22, greenhouse gas emissions will be with GWPs ranging from 1,810 to limited given it is subject to the venting 1 Unless otherwise stated, all GWPs in this 10,900. Furthermore, the GWP of Hot prohibition under section 608(c)(2) of document are from: IPCC, 2007: Climate Change Shot 2 is lower than or comparable to the CAA and EPA’s implementing 2007: The Physical Science Basis. Contribution of that of other non-ozone-depleting regulations codified at 40 CFR Working Group I to the Fourth Assessment Report 82.154(a)(1), which limit emissions of of the Intergovernmental Panel on Climate Change (Solomon, S., D. Qin, M. Manning, Z. Chen, M. 3 Unless otherwise stated, all ODPs in this refrigerant substitutes. Marquis, K.B. Averyt, M. Tignor and H.L. Miller document are from: WMO (World Meteorological R–407F does not contain any VOCs as (eds.)). Cambridge University Press, Cambridge, Organization), Scientific Assessment of Ozone defined under CAA regulations (see 40 United Kingdom and New York, NY, USA. This Depletion: 2010, Global Ozone Research and CFR 51.100(s)) addressing the document is accessible at http://www.ipcc.ch/ Monitoring Project–Report No. 52, 516 pp., Geneva, publications_and_data/ar4/wg1/en/contents.html. Switzerland, 2011. This document is accessible at development of SIPs to attain and 2 For more information, including definitions, see http://ozone.unep.org/Assessment_Panels/SAP/ maintain the national ambient air 40 CFR part 82 subpart F. Scientific_Assessment_2010/index.shtml. quality standards.

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Flammability information: While the R–507A as an acceptable alternative for recommendations in the MSDS and component HFC–32 is moderately various CFCs (e.g., CFC–12) and CFC- other safety precautions common to the flammable, R–407F as formulated and in containing blends (e.g., R–500 and R– refrigeration and air conditioning the worst-case fractionation formulation 502) in several refrigeration and air industry. is not flammable. conditioning end uses and as an Comparison to Other Refrigerants: R– Toxicity and exposure data: Potential alternative for HCFC–22 and blends in 507A is not ozone-depleting, in contrast health effects of this substitute include the very low temperature refrigeration to R–13B1 (with an ODP of 15.9), the drowsiness or dizziness. The substitute end use. (March 18, 1994, 59 FR 13044; ozone-depleting substance which it may also irritate the skin or eyes or August 26, 1994, 59 FR 44240; January replaces, and in contrast to NARM–502 cause frostbite. At sufficiently high 13, 1995, 60 FR 3318; September 5, and R–403B, substitutes for this end use concentrations, the substitute may cause 1996, 61 FR 47012; December 20, 2002, that contain HCFC–22 with an ODP of irregular heartbeat. The substitute could 67 FR 77927). Today’s decision finds R– 0.04. R–507A’s GWP of about 3,850 is cause asphyxiation if air is displaced by 507A acceptable as a substitute for R– well below that of R–13B1 with a GWP vapors in a confined space. These 13B1 (also known as halon 1301) in the of 7,140 and lower than or comparable potential health effects are common to very low temperature refrigeration end to that of other non-ozone-depleting many refrigerants. use.4 substitutes for R–13B1 in the very low The AIHA has established WEELs of Environmental information: The ODP temperature refrigeration end use, such 1000 ppm on an 8-hour time-weighted of R–507A is zero. The GWPs of HFC– as R–508A with a GWP of 13,200, average for each of the components of 125 and HFC–143a are about 3,400 and NARM–502 with a GWP of 2,380, and R–407F. The manufacturer also 4,300, respectively. If these values are R–403B with a GWP of 1,500. recommends an AEL of 1000 ppm on an weighted by mass percentage, then R– Flammability and toxicity risks are low, 8-hour time-weighted average for each 507A has a GWP of 3,850. The as discussed above. Thus, EPA finds R– of the R–407F components. EPA contribution of this refrigerant blend to 507A acceptable in the very low anticipates that users will be able to greenhouse gas emissions will be temperature refrigeration end use for meet AIHA’s WEELs and the limited given it is subject to the venting retrofit equipment because the overall manufacturer’s recommended AELs and prohibition under section 608(c)(2) of environmental and human health risk address potential health risks by the CAA and EPA’s implementing posed by R–507A is lower than or following requirements and regulations codified at 40 CFR comparable to the risks posed by other recommendations in the MSDS and 82.154(a)(1), which limit emissions of substitutes found acceptable in the same other safety precautions common to the refrigerant substitutes. end use. refrigeration and air conditioning R–507A does not contain any VOCs as B. Solvent Cleaning industry. defined under CAA regulations (see 40 Comparison to other refrigerants: R– CFR 51.100(s)) addressing the 1. Perfluorobutyl Iodide (PFBI) 407F is not ozone-depleting in contrast development of SIPs to attain and to HCFC–22 (with an ODP of 0.04) and EPA’s decision: EPA finds maintain the national ambient air HCFC–142b (with an ODP of 0.06), the perfluorobutyl iodide (PFBI) is quality standards. acceptable as a substitute for CFC–113, ozone-depleting substances which it Flammability Information: While the replaces, and comparable to a number of methyl chloroform, and HCFC–225ca, component HFC–143a is moderately HCFC–225cb, and blends thereof for use other acceptable non-ozone-depleting flammable, R–507A as formulated and substitutes in these end uses (e.g., R– in: in the worst-case fractionation • Metal cleaning. 410A and R–404A). R–407F’s GWP of formulation is not flammable. • about 1,820 is comparable to that of Electronics cleaning. Toxicity and Exposure Data: Potential • Precision cleaning. HCFC–22 with a GWP of 1,810 and health effects of this substitute include PFBI is also known as lower than or comparable to that of headache, nausea, dizziness, 1,1,1,2,2,3,3,4,4-nonafluoro-4-iodo- other non-ozone-depleting substitutes drowsiness, or loss of consciousness. butane (CAS Reg. No. 423–39–2). This for HCFC–22 in the same refrigeration The substitute may also irritate the skin substitute was submitted to EPA under and air conditioning end uses, such as or eyes or cause frostbite. At sufficiently the trade name Capstone® 4–I as a R–410A with a GWP of 2,100 and R– high concentrations, the substitute may fluorinated iodide mixture containing 404A with a GWP of 3,930. cause irregular heartbeat or rapid greater than 99 percent PFBI. You may Flammability and toxicity risks are low, heartbeat. The substitute could cause find the submission under Docket item as discussed above. Thus, EPA finds R– asphyxiation if air is displaced by EPA–HQ–OAR–2003–0118–0269 at 407F acceptable in the end uses listed vapors in a confined space. These http://www.regulations.gov. above because the overall potential health effects are common to Environmental information: PFBI has environmental and human health risk many refrigerants. an ODP of less than 0.005. PFBI has a posed by R–407F is lower than or EPA anticipates that R–507A will be GWP of less than 5 relative to CO2 and comparable to the risks posed by other used consistent with the an atmospheric lifetime of a few days 5. substitutes found acceptable in the same recommendations specified in the PFBI is currently defined as a VOC end uses. MSDSs for the blend and the individual under Clean Air Act regulations (see 40 3. R–507A components. All components of the CFR 51.100(s)) addressing the EPA’s decision: EPA finds R–507A is blend have WEELs of 1,000 ppm, as development of SIPs to attain and acceptable as a substitute for R–13B1 for established by AIHA. EPA anticipates maintain the national ambient air use in retrofit equipment in very low that users will be able to meet AIHA’s quality standards. Many States temperature refrigeration. WEELs and address potential health currently, in particular those with areas R–507A, also known as R–507, is a risks by following requirements and that are violating the ozone NAAQS, blend of 50% by weight HFC–125 4 EPA received a test marketing notification for 5 ODP, GWP and atmospheric lifetime for PFBI (1,1,1,2,2-pentafluoroethane) and 50% this use, accessible under Docket item EPA–HQ– are from information provided in the submission by weight HFC–143a (1,1,1- OAR–2003–0118–0266 at http:// under Docket item EPA–HQ–OAR–2003–0118–0269 trifluoroethane). EPA previously listed www.regulations.gov. at http://www.regulations.gov.

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have regulations governing the VOC Comparison to other solvents: PFBI’s hereinafter, collectively referring to content of solvents. ODP of less than 0.005 is below that of them as ‘‘both Firebane® 1115 Some evidence shows that the CFC–113 (with an ODP of 0.85) and formulations.’’ The manufacturer of substitute can cause aquatic toxicity, lower than or comparable to that of both Firebane® 1115 formulations has 6 with an LC50 of 2 mg/l in a 96-hour test other substitutes for CFC–113 in metals, claimed their composition as CBI. You on fathead minnows under laboratory electronics, and precision cleaning such may find the submissions under Docket conditions. Due to PFBI’s low solubility as HCFC–225ca with an ODP of 0.02, items EPA–HQ–OAR–2003–0118–0255 in water, high vapor pressure and high HCFC–225cb with an ODP of 0.03, and and EPA–HQ–OAR–2003–0118–0256 at volatility, it is not likely to accumulate HFE–7100 with an ODP of zero. PFBI’s http://www.regulations.gov. in surface water at concentrations high GWP of less than 5 is well below that Environmental information: Both enough to be toxic to fish 7. To address of CFC–113 with a GWP of 6,130 and is Firebane® 1115 formulations have zero the potential for toxicity to fish, the EPA lower than that of other substitutes for ODP and zero GWP. Therefore, both recommends that users follow CFC–113 in the listed end uses, such as Firebane® 1115 formulations are not recommendations in the manufacturer’s HCFC–225ca with a GWP of 1,220, expected to pose any significant adverse MSDS, including: HCFC–225cb with a GWP of 595, and impacts on the ozone layer or climate. • ® Collect the spent solvent for HFE–7100 with a GWP of 297. PFBI has In the case of both Firebane 1115 reclamation or incineration; formulations, it is expected that all of • a lower LC50 for fish than some other Incinerate materials that contain or acceptable solvents in these end uses the constituents would rapidly are contaminated with the solvent; (e.g., 7280 to 8120 mg/l for acetone 8, aerosolize during expulsion from the • Send solvent-contaminated 40.7 to 66.8 mg/l for trichloroethylene,9 container and then settle as a liquid on wastewater to a wastewater treatment and greater than 7.9 mg/l for HFE– surfaces. After settling, cleanup would facility to prevent the solvent from 10 7100 ) and an LC50 higher than for involve washing or rinsing of surfaces. entering waterways; and The substitutes are readily • Do not dispose of the solvent by some other acceptable substitutes (e.g., 11 biodegradable and have an releasing it into waterways. 0.7 mg/l for d-limonene ). EPA expects that following the disposal exceptionally low biological oxygen EPA anticipates that PFBI will be recommendations in the manufacturer’s demand 12 (BOD) level for wastewater disposed of consistent with regulations MSDS can sufficiently address this risk. and low chemical oxygen demand. pertaining to the definition of hazardous ® Flammability and toxicity risks are low, Discharge of either Firebane 1115 waste under the Resource Conservation as discussed above. Thus, EPA finds formulation is, therefore, not expected and Recovery Act (RCRA) as well as PFBI acceptable in the end uses listed to contribute to surface water with the recommendations above. contamination or generation of solid Flammability information: PFBI is not above because the overall risk to human health and the environment posed by waste. flammable. Of the constituents of both Firebane Toxicity and exposure data: Potential PFBI is lower than or comparable to the 1115® formulations, only one has not health effects of this substitute include risks posed by other substitutes found been exempted as a VOC under the CAA cough, shortness of breath, central acceptable in the same end uses. (40 CFR 51.100(s)). Potential emissions nervous system depression, dizziness, C. Fire Suppression of VOCs from the use of substitutes for confusion, incoordination, drowsiness, ® halons in the fire extinguishing and or unconsciousness. The substitute may 1. Firebane All-Weather 1115 and ® explosion prevention sector are likely to also irritate the skin or eyes. At Firebane 1115 be insignificant relative to VOCs from sufficiently high concentrations, the ® EPA’s decision: EPA finds Firebane all other sources (i.e., other industries, substitute may cause irregular heartbeat ® All-Weather 1115 and Firebane 1115 mobile sources, and biogenic sources). or fluid in the lungs. These potential acceptable as substitutes for halon 1211 health effects are common to many Even at full market penetration, and for use as streaming agents. given typical annual emission rates for solvents. Because the formulations of Firebane® EPA anticipates that PFBI will be ® halon substitute fire suppressants, All-Weather 1115 and Firebane 1115 estimated annual VOC emissions from used consistent with the are very similar and share the same ® recommendations specified in the both formulations of Firebane 1115 are human health and environmental risks, not expected to pose any significant manufacturer’s MSDS. EPA and the we are listing them together and, manufacturer both recommend an adverse impacts on local air quality. Flammability information: Both acceptable exposure limit of 375 ppm 8 Fisher Scientific, 2001. Material Safety Data ® over an 8-hour time-weighted average Sheet for acetone. Updated March 19, 2001. Firebane 1115 formulations are non- for PFBI. Users should be aware of Available at http://www.mhatt.aps.anl.gov/dohn/ flammable. additional exposure limits that may be msds/acetone.html. Toxicity and exposure data: The 9 associated with byproducts in PFBI NPS, 1997. Irwin, R.J., M. VanMouwerik, L. majority of the constituents of the Stevens, M.S. Seese, and W. Basham. 1997. Firebane® 1115 formulations are solutions, such as iodine. EPA Environmental Contaminants Encyclopedia. anticipates that users will be able to National Park Service, Water Resources Division, classified by the U.S. Food and Drug meet the workplace exposure limits Fort Collins, Colorado. Administration (FDA) as ‘‘Generally (manufacturer AEL and EPA 10 Material Safety Data Sheet for 3MTM NovecTM Recognized as Safe (GRAS)’’ recommendation) and address potential 7100 Engineered Fluid. March 17, 2011. compounds, and the remaining Downloaded from http://multimedia.3m.com/mws/ constituents are FDA-approved for use health risks by following requirements mediawebserver?mwsId=SSS and recommendations in the MSDSs SSuUn_zu8l00xl8mBm8mePv70k17zHvu9lxtD7 as direct and/or indirect food additives. and other safety precautions common in SSSSSS—on August 10, 2011. HFE–7100’s LC50 for These compounds are commonly used the solvent cleaning industry. fish (fathead minnow) is reported as being greater in food, pharmaceutical, or cosmetic than its saturation concentration in water. applications. Individual constituents 11 Toxicity of eight terpenes to fathead minnows 6 may cause gastrointestinal discomfort (if LC50 is defined as the concentration at which (Pimephales promelas), daphnids (Daphnia 50% of the test animals die. magna), and algae (Selenastrum capricornutum). 7 For more information see the risk screen for AScI Corporation and U.S. Environmental 12 BOD is the amount of oxygen consumed by PFBI provided in the Docket at http:// Protection Agency, Environmental Research microorganisms as they decompose organic www.regulations.gov. Laboratory–Duluth. 1990. materials in water.

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excessively ingested), or minor irritation the overall environmental and human specifies that training for safe handling to the eyes, skin, and/or respiratory health risk posed by Firebane® 1115 and procedures be provided to all employees tract. Firebane® All-Weather 1115 is lower that would be likely to dispose of either Given the low toxicity of its than or comparable to the risks posed by Firebane® formulation at cleanup. In constituents, both formulations of other substitutes found acceptable in the addition, the use of an extinguisher is Firebane® 1115 are not expected to pose same end use. expected to be infrequent (i.e., in case of a fire emergency), and therefore a significant risk to personnel during 2. Firebane® 1170 and Firebane® 1179 manufacture, installation and discharges at end-use would be ® EPA’s decision: EPA finds Firebane infrequent. Therefore, EPA expects that maintenance. To minimize worker ® exposure to any chemicals during 1170 and Firebane 1179 acceptable as following the safe handling and disposal manufacture, installation, and substitutes for halon 1211 for use as recommendations in the manufacturer’s maintenance through an accidental streaming agents. MSDS would protect against significant ® Because the formulations of Firebane harm to surface water during release or spill, EPA recommends the ® following: 1170 and Firebane 1179 are very manufacture, end-use or at cleanup. ® • Proper personal protective similar and share the same human Of the constituents of both Firebane equipment (PPE) be used during health and environmental risks, they are formulations, only one has not been handling of the substitute (e.g., goggles, being listed together and, hereinafter, exempted as a VOC under the CAA (40 collectively referred to in this section as CFR 51.000). Potential emissions of gloves); ® • ‘‘both Firebane formulations.’’ The VOCs from the use of substitutes for Adequate ventilation should be in ® place; manufacturer of both Firebane halons in the fire extinguishing and • All spills should be cleaned up formulations has claimed their explosion prevention sector are likely to immediately in accordance with good composition as CBI. You may find the be insignificant relative to VOCs from submissions under Docket items EPA– industrial hygiene practices; all other sources (i.e., other industries, HQ–OAR–2003–0118–0260 and EPA– • Training for safe handling mobile sources, and biogenic sources). HQ–OAR–2003–0118–0270 at http:// procedures should be provided to all Even at full market penetration, and www.regulations.gov. employees that would be likely to given typically annual emission rates for Environmental information: Both halon substitute fire suppressants, handle containers of or extinguishing ® ® Firebane formulations have zero ODP estimated annual VOC emissions from units filled with Firebane 1115 or ® ® and zero GWP. Therefore, both both Firebane formulations are not Firebane All-Weather 1115; and ® • Firebane formulations are not expected expected to pose any significant adverse In case of an inadvertent discharge, to pose any significant adverse impacts workers should immediately follow the impact on local air quality. on the ozone layer or climate. Flammability information: Both instructions listed in the manufacturer’s At manufacture, EPA believes that ® MSDS. Firebane formulations are non- regulatory requirements on industrial flammable. The above recommendations are all wastewater discharges are sufficient to Toxicity and exposure data: The contained in the manufacturers’s MSDS. prevent the unlikely release of the majority of the constituents of both EPA also recommends that use of these substitute to surface water during the Firebane® formulations are composed of systems should be in accordance with manufacturing operations of both FDA-classified GRAS compounds, and ® the latest edition of NFPA 10 Standard Firebane formulations. Because of the the remaining constituents are FDA- for Portable Extinguishers. BOD level of these formulations, approved for use as direct or indirect ® ® ® Firebane 1115 and Firebane All- discharges of either Firebane food additives. These compounds are Weather 1115 are not expected to cause formulation that result in release to commonly used in food, significant harm to human health when waterways could result in relatively pharmaceutical, or cosmetic used as streaming agents in portable fire high BOD in the waterways. However, applications. Individual constituents extinguishers. As described above, the neither Firebane® formulation is ® may cause gastrointestinal discomfort (if constituents of both Firebane 1115 expected to pose significant harm to the excessively ingested), or minor irritation formulations are composed of environment, provided that proper to the eyes, skin, and/or respiratory compounds with low toxicity. Their use disposal procedures are followed. As tract. Given the low toxicity of their as streaming agents is not expected to with the majority of halon substitutes, constituents, both Firebane® pose any significant adverse health their physicochemical properties make formulations are not expected to pose a effects when the recommended safety it unlikely that the substitutes would be significant risk to personnel during precautions are followed. released to surface water. manufacture, installation and Comparison to other fire During discharge, the constituents of ® ® maintenance. To minimize worker suppressants: Both Firebane 1115 both Firebane formulations would exposure to any chemicals during formulations have zero ODP and GWP rapidly aerosolize during expulsion manufacture, installation, and in contrast to halon 1211 (with an ODP from the container and then settle as a maintenance through an accidental of 7.1 and a GWP of 1,890), the ODS liquid on surfaces. After settling, release or spill, EPA recommends the which they replace. Compared to other cleanup would involve washing or following: substitutes for halon 1211, such as rinsing of surfaces. It is recommended • Proper Level C or higher PPE be ® HCFC Blend B (with ODP of roughly that discharges of either Firebane used during handling of the substitute 0.01 and GWP of roughly 80), HFC– formulation not be released to (e.g., goggles, gloves); 227ea (with ODP of 0 and GWP of waterways. Further, during cleanup, it • Adequate ventilation should be in 3,220), and HFC–236fa (with an ODP of is recommended that discharges of place; 0 and GWP of 9,810), both Firebane® either Firebane® formulation be • All spills should be cleaned up 1115 formulations have less impact on collected (e.g., mopped) and sealed in immediately in accordance with good the atmosphere. Toxicity risks are low, containers and then disposed of in industrial hygiene practices; as discussed above. Thus, we find that accordance with local, state, and federal • Training for safe handling Firebane® 1115 and Firebane® All- requirements and as specified in the procedures should be provided to all Weather 1115 are acceptable because manufacturer’s MSDS. The MSDS also employees that would be likely to

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handle containers of or extinguishing Toxicity and exposure data: The Depending on the fire suppression units filled with Firebane® 1170 or majority of the constituents in the requirement, several generators may be ® ® Firebane 1179; and Firebane 1179 formulation are FDA- stacked inside an N2 tower in a room, • In case of an inadvertent discharge, classified GRAS compounds, and the or a single generator may be bracketed workers should immediately follow the remaining constituents are FDA- inside a vehicle. You may find the instructions listed in the MSDS for approved for use as direct or indirect submission under Docket item EPA– Firebane® 1170 or for Firebane® 1179. food additives. These compounds are HQ–OAR–2003–0118–0253 at http:// The above recommendations are all commonly used in food, www.regulations.gov. included in the manufacturer’s MSDSs. pharmaceutical, or cosmetic Environmental information: The ® EPA also recommends that use of these applications. Individual constituents constituents of the N2 Towers System systems should be in accordance with may cause gastrointestinal discomfort (if are solids before use and therefore have the latest edition of NFPA 10 Standard excessively ingested), or minor irritation zero ODP and zero GWP. Further, the to the eyes, skin, and/or respiratory ODP of each of the post-activation for Portable Extinguishers. ® Firebane® 1170 and Firebane® 1179 tract. Given the low toxicity of its constituents of the N2 Towers System are not expected to cause harm to constituents, EPA expects no significant is zero, and the GWPs of post-activation adverse health effects when the constituents are 1 or less. human health when used as streaming ® agents in portable fire extinguishers. recommended safety precautions and The N2 Towers System does not EPA expects no significant adverse normal industry practices are applied contain any VOCs as defined under health effects when the recommended and use of the substitute is in CAA regulations (see 40 CFR 51.100(s)) safety precautions and normal industry accordance with the manufacturer’s addressing the development of SIPs to ® attain and maintain the national practices are applied and use of the MSDS. See the listing for Firebane ambient air quality standards. substitutes is in accordance with the 1179 above in section C.2 for further Accordingly, use of the N2 Towers® manufacturer’s MSDSs. information. Comparison to other fire System is not expected to pose any Comparison to other fire suppressants: Firebane® 1179 has zero significant adverse impacts on local air suppressants: Both Firebane® 1170 and ODP and GWP in contrast to halon 1301 quality. Firebane® 1179 have zero ODP and (with an ODP of 16 and a GWP of Flammability information: The N2 GWP in contrast to halon 1211 (with an ® 7,140), the ozone-depleting substance Towers System generates products that ODP of 7.1 and a GWP or 1,890), the which it replaces, and comparable to are non-flammable. ODS they replace. Compared to other other acceptable non-ozone-depleting Toxicity and exposure data: The substitutes for halon 1211, such as ® substitutes (e.g., Inert Gas 541, HFC– potential health risks of the N2 Towers HCFC Blend B (with an ODP of roughly 227ea and HFC–125). Firebane® 1179’s System come from its production of 0.01 and GWP of roughly 80), HFC– GWP is comparable to or less than that nitrogen gas, an inert gas that at 227ea (with an ODP of 0 and GWP of for other non-ozone depleting sufficiently high levels can cause 3,220), and HFC–236fa (with an ODP of asphyxiation. The N2 Towers® System ® substitutes for halon 1301, such as Inert 0 and GWP of 9,810), both Firebane Gas 541, HFC–227ea or HFC–125, with is designed to ensure that the oxygen formulations have less impact on the GWPs of less than 1, 3,220, and 3,500, concentration in any protected space atmosphere. Toxicity risks are low, as respectively. Toxicity risks are low, as will not fall below 12 percent over the discussed above. Thus, we find that 5-minute discharge period, consistent ® ® discussed above. Thus, we find that Firebane 1170 and Firebane 1179 are Firebane® 1179 is acceptable because with the health criteria in NFPA acceptable because the overall the overall environmental and human Standard 2001 for Clean Agent Fire environmental and human health risk health risk posed by Firebane® 1179 is Extinguishing Systems. EPA ® ® posed by Firebane 1170 and Firebane lower than or comparable to the risks recommends that use of this system 1179 is lower than or comparable to the posed by other substitutes found should be in accordance with the safe risks posed by other substitutes found acceptable in the same end use. exposure guidelines for inert gas acceptable in the same end use. systems in the latest edition of NFPA ® 4. N2 Towers Inert Gas Generator Fire 2001, specifically the requirements for 3. Firebane 1179 Total Flooding ® Suppression System (N2 Towers residual oxygen levels, and that use ® EPA’s decision: EPA finds Firebane System) should be in accordance with the 1179 acceptable as a substitute for EPA’s decision: EPA finds the N2 relevant operational requirements in halon 1301 for total flooding uses in Towers Inert Gas Generator Fire NFPA Standard 2010 for Aerosol both occupied and unoccupied areas. Suppression System (N2 Towers® Extinguishing Systems. EPA also The manufacturer of Firebane® 1179 System) is acceptable as a substitute for recommends that Section VIII of the has claimed its composition as CBI. You halon 1301 for total flooding uses in OSHA Technical Manual be consulted may find the submission under Docket both occupied and unoccupied areas. as well as all information from the item EPA–HQ–OAR–2003–0118–0270 at The N2 Towers® System is a fire manufacturer for information on http://www.regulations.gov. suppression system that pyrotechnically selecting the appropriate types of PPE to Environmental information: generates nitrogen (N2, CAS Reg. No. be worn by personnel involved in the Firebane® 1179 has zero ODP and zero 7727–37–9). It is designed for use with manufacture, installation, and GWP. Firebane® 1179 is expected to Class A and B fires (ordinary maintenance of the N2 Towers® System. aerosolize rapidly during expulsion combustible materials fires and Comparison to other fire from the fire suppression system and flammable liquids fires, respectively). suppressants: The N2 Towers® System then settle as a liquid on surfaces. After The N2 Towers® System is an inert gas is not ozone-depleting in contrast to settling, cleanup would involve washing system designed for total flooding halon 1301 (with an ODP of 16 and a or rinsing of surfaces. See the listing for applications for fires in normally GWP of 7,140), the ODS which it ® Firebane 1179 above in section C.2 for occupied or unoccupied spaces. Each N2 replaces, and comparable to other further information. generator unit contains a large number acceptable non-ozone-depleting Flammability information: Firebane® of small propellant grain discs that substitutes (e.g., Inert Gas 541, HFC– 1179 is non-flammable. generate nitrogen gas when activated. 227ea and HFC–125). The GWPs of the

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post-activation constituents of the N2 to grant or deny a petition. Where the major industrial use sectors must Towers® System range from zero to Agency grants the petition, EPA must provide notice to the Agency, including three which are comparable to or less publish the revised lists within an health and safety information on the than the GWPs for other non-ozone additional six months. substitute, at least 90 days before depleting substitutes for halon 1301, introducing it into interstate commerce 4. 90-Day Notification such as Inert Gas 541, HFC–227ea or for significant new use as an alternative. HFC–125, with GWPs of less than 1, Section 612(e) directs EPA to require This requirement applies to the persons 3,220, and 3,500, respectively. Toxicity any person who produces a chemical planning to introduce the substitute into risks are low, as discussed above. Thus, substitute for a class I substance to interstate commerce,13 which typically we find that the N2 Towers® System is notify the Agency not less than 90 days are chemical manufacturers but may acceptable because the overall before new or existing chemicals are include importers, formulators, environmental and human health risk introduced into interstate commerce for equipment manufacturers, and end- posed by the N2 Towers® System is significant new uses as substitutes for a users 14. The regulations identify certain lower than or comparable to the risks class I substance. The producer must narrow exemptions from the notification posed by other substitutes found also provide the Agency with the requirement, such as research and acceptable in the same end use. producer’s unpublished health and development and test marketing (40 safety studies on such substitutes. CFR 82.176(b)(4) and (5), respectively). II. Section 612 Program The Agency has identified four 5. Outreach A. Statutory Requirements and possible decision categories for Authority for the SNAP Program Section 612(b)(1) states that the substitutes that are submitted for Section 612 of the Clean Air Act Administrator shall seek to maximize evaluation: Acceptable; acceptable (CAA) requires EPA to develop a the use of federal research facilities and subject to use conditions; acceptable program for evaluating alternatives to resources to assist users of class I and subject to narrowed use limits; and ozone-depleting substances. EPA refers II substances in identifying and unacceptable (40 CFR 82.180(b)). Use to this program as the Significant New developing alternatives to the use of conditions and narrowed use limits are Alternatives Policy (SNAP) program. such substances in key commercial both considered ‘‘use restrictions’’ and The major provisions of section 612 are: applications. are explained in the paragraphs below. Substitutes that are deemed acceptable 6. Clearinghouse 1. Rulemaking with no use restrictions (no use Section 612(c) requires EPA to Section 612(b)(4) requires the Agency conditions or narrowed use limits) can promulgate rules making it unlawful to to set up a public clearinghouse of be used for all applications within the replace any class I substance (i.e., alternative chemicals, product relevant end uses within the sector. chlorofluorocarbon, halon, carbon substitutes, and alternative After reviewing a substitute, the tetrachloride, methyl chloroform, manufacturing processes that are Agency may determine that a substitute methyl bromide, and available for products and is acceptable only if certain conditions hydrobromofluorocarbon) or class II manufacturing processes which use in the way that the substitute is used are substance (i.e., class I and II substances. met to minimize risks to human health hydrochlorofluorocarbon) with any B. EPA’s Regulations Implementing and the environment. EPA describes substitute that the Administrator Section 612 such substitutes as ‘‘acceptable subject determines may present adverse effects to use conditions.’’ Entities that use to human health or the environment On March 18, 1994, EPA published these substitutes without meeting the where the Administrator has identified the original rulemaking (59 FR 13044) associated use conditions are in an alternative that (1) Reduces the which established the process for violation of EPA’s SNAP regulations. overall risk to human health and the administering the SNAP program and For some substitutes, the Agency may environment, and (2) is currently or issued EPA’s first lists identifying permit a narrowed range of use within potentially available. acceptable and unacceptable substitutes an end-use or sector. For example, the in the major industrial use sectors Agency may limit the use of a substitute 2. Listing of Unacceptable/Acceptable (subpart G of 40 CFR part 82). These to certain end-uses or specific Substitutes sectors—refrigeration and air applications within an industry sector. Section 612(c) requires EPA to conditioning; foam blowing; cleaning EPA describes these substitutes as publish a list of the substitutes solvents; fire suppression and explosion ‘‘acceptable subject to narrowed use unacceptable for specific uses and to protection; sterilants; aerosols; limits.’’ The Agency requires the user of publish a corresponding list of adhesives, coatings and inks; and a narrowed-use substitute to acceptable alternatives for specific uses. tobacco expansion—are the principal The list of acceptable substitutes may be industrial sectors that historically 13 As defined at 40 CFR 82.104, ‘‘interstate found at http://www.epa.gov/ozone/ consumed the largest volumes of ODS. commerce’’ means the distribution or transportation snap/lists/index.html and the lists of Section 612 of the CAA requires EPA of any product between one state, territory, possession or the District of Columbia, and another substitutes that are ‘‘unacceptable,’’ to ensure that substitutes found state, territory, possession or the District of ‘‘acceptable subject to use conditions,’’ acceptable do not present a significantly Columbia, or the sale, use or manufacture of any and ‘‘acceptable subject to narrowed use greater risk to human health and the product in more than one state, territory, possession limits’’ are in subpart G of 40 CFR part environment than other substitutes that or District of Columbia. The entry points for which a product is introduced into interstate commerce 82. are currently or potentially available. are the release of a product from the facility in 3. Petition Process C. How the Regulations for the SNAP which the product was manufactured, the entry into a warehouse from which the domestic manufacturer Section 612(d) grants the right to any Program Work releases the product for sale or distribution, and at person to petition EPA to add a Under the SNAP regulations, anyone the site of United States Customs clearance. 14 As defined at 40 CFR 82.172, ‘‘end-use’’ means substance to, or delete a substance from, who plans to market or produce a processes or classes of specific applications within the lists published in accordance with substitute to replace a class I substance major industrial sectors where a substitute is used section 612(c). The Agency has 90 days or class II substance in one of the eight to replace an ODS.

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demonstrate that no other acceptable without restrictions because such D. Additional Information About the substitutes are available for the specific listings neither impose any sanction nor SNAP Program application by conducting prevent anyone from using a substitute. comprehensive studies. A person using Many SNAP listings include For copies of the comprehensive a substitute that is acceptable subject to ‘‘Comments’’ or ‘‘Further Information’’ SNAP lists of substitutes or additional narrowed use limits in applications and to provide additional information on information on SNAP, refer to EPA’s end-uses that are not consistent with the substitutes. Since this additional Ozone Depletion Web site at: http:// narrowed use limit is using the information is not part of the regulatory www.epa.gov/ozone/snap/index.html. substitute in an unacceptable manner decision, these statements are not For more information on the Agency’s and is in violation of section 612 of the binding for use of the substitute under process for administering the SNAP CAA and EPA’s SNAP regulations. the SNAP program. However, regulatory program or criteria for evaluation of The Agency publishes its SNAP requirements so listed are binding under substitutes, refer to the March 18, 1994, program decisions in the Federal other regulatory programs (e.g., worker SNAP final rulemaking (59 FR 13044), Register (FR). EPA publishes decisions protection regulations promulgated by codified at 40 CFR part 82, subpart G. concerning substitutes that are deemed the Occupational Safety and Health A complete chronology of SNAP acceptable subject to use restrictions Administration (OSHA)). The ‘‘Further decisions and the appropriate citations (use conditions and/or narrowed use Information’’ classification does not is found at: http://www.epa.gov/ozone/ limits), or substitutes deemed necessarily include all other legal snap/chron.html. unacceptable, as proposed rulemakings obligations pertaining to the use of the to provide the public with an substitute. While the items listed are not List of Subjects in 40 CFR Part 82 opportunity to comment, before legally binding under the SNAP publishing final decisions. program, EPA encourages users of Environmental protection, In contrast, EPA publishes decisions substitutes to apply all statements in the Administrative practice and procedure, concerning substitutes that are deemed ‘‘Further Information’’ column in their Air pollution control, Reporting and acceptable with no restrictions in use of these substitutes. In many recordkeeping requirements. ‘‘notices of acceptability’’ or instances, the information simply refers Dated: September 27, 2011. ‘‘determinations of acceptability,’’ rather to sound operating practices that have than as proposed and final rules. As already been identified in existing Elizabeth Craig, described in the March 18, 1994, rule industry and/or building codes or Acting Director, Office of Atmospheric initially implementing the SNAP standards. Thus many of the statements, Programs. program, EPA does not believe that if adopted, would not require the Appendix A: Summary of Acceptable rulemaking procedures are necessary to affected user to make significant Decisions list alternatives that are acceptable changes in existing operating practices.

REFRIGERATION AND AIR CONDITIONING

End-Use Substitute Decision Further information 1

Centrifugal chillers (retrofit only) ..... Hot Shot 2 as a substitute for Acceptable ...... The manufacturer has an acceptable exposure CFC–11, CFC–12, CFC–114, limit of 1,000 ppm over an 8-hour time-weighted R–500, HCFC–22 and HCFC average for Hot Shot 2. blends, including those con- taining HCFC–22 and/or HCFC–142b. Reciprocating and screw chillers Hot Shot 2 as a substitute for Acceptable ...... The manufacturer has an acceptable exposure (retrofit only). CFC–12, R–500, R–502, limit of 1,000 ppm over an 8-hour time-weighted HCFC–22 and HCFC blends, average for Hot Shot 2. including those containing HCFC–22 and/or HCFC–142b. Industrial process refrigeration (ret- Hot Shot 2 as a substitute for Acceptable ...... The manufacturer has an acceptable exposure rofit only). CFC–11, CFC–12, CFC–113, limit of 1,000 ppm over an 8-hour time-weighted CFC–114, R–13B1, R–500, R– average for Hot Shot 2. 502, HCFC–22 and HCFC blends, including those con- taining HCFC–22 and/or HCFC–142b. Industrial process refrigeration (ret- R–407F as a substitute for Acceptable ...... The American Industrial Hygiene Association rofit and new). HCFC–22 and HCFC blends, (AIHA) has established workplace environmental including those containing exposure limits (WEELs) of 1,000 ppm over an HCFC–22 and/or HCFC–142b. 8-hour time-weighted average for each of R– 407F’s individual components. Ice skating rinks (retrofit only) ...... Hot Shot 2 as a substitute for Acceptable ...... The manufacturer has an acceptable exposure CFC–12, R–500, R–502, limit of 1,000 ppm over an 8-hour time-weighted HCFC–22 and HCFC blends, average for Hot Shot 2. including those containing HCFC–22 and/or HCFC–142b. Ice skating rinks (retrofit and new) R–407F as a substitute for Acceptable ...... The AIHA has established WEELs of 1,000 ppm HCFC–22 and HCFC blends, over an 8-hour time-weighted average for each including those containing of R–407F’s individual components. HCFC–22 and/or HCFC–142b.

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REFRIGERATION AND AIR CONDITIONING—Continued

End-Use Substitute Decision Further information 1

Industrial process air conditioning R–407F as a substitute for Acceptable ...... The AIHA has established WEELs of 1,000 ppm (retrofit and new). HCFC–22 and HCFC blends, over an 8-hour time-weighted average for each including those containing of R–407F’s individual components. HCFC–22 and/or HCFC–142b. Cold storage warehouses (retrofit Hot Shot 2 as a substitute for Acceptable ...... The manufacturer has an acceptable exposure only). CFC–12, R–500, R–502, limit of 1,000 ppm over an 8-hour time-weighted HCFC–22 and HCFC blends, average for Hot Shot 2. including those containing HCFC–22 and/or HCFC–142b. Cold storage warehouses (retrofit R–407F as a substitute for Acceptable ...... The AIHA has established WEELs of 1,000 ppm and new). HCFC–22 and HCFC blends, over an 8-hour time-weighted average for each including those containing of R–407F’s individual components. HCFC–22 and/or HCFC–142b. Refrigerated transport (retrofit only) Hot Shot 2 as a substitute for Acceptable ...... The manufacturer has an acceptable exposure CFC–12, R–500, R–502, limit of 1,000 ppm over an 8-hour time-weighted HCFC–22 and HCFC blends, average for Hot Shot 2. including those containing HCFC–22 and/or HCFC–142b. Refrigerated transport (retrofit and R–407F as a substitute for Acceptable ...... The AIHA has established WEELs of 1,000 ppm new). HCFC–22 and HCFC blends, over an 8-hour time-weighted average for each including those containing of R–407F’s individual components. HCFC–22 and/or HCFC–142b. Retail food refrigeration (retrofit Hot Shot 2 as a substitute for Acceptable ...... The manufacturer has an acceptable exposure only). CFC–12, R–500, R–502, limit of 1,000 ppm over an 8-hour time-weighted HCFC–22 and HCFC blends, average for Hot Shot 2. including those containing HCFC–22 and/or HCFC–142b. Retail food refrigeration (retrofit and R–407F as a substitute for Acceptable ...... The AIHA has established WEELs of 1,000 ppm new). HCFC–22 and HCFC blends, over an 8-hour time-weighted average for each including those containing of R–407F’s individual components. HCFC–22 and/or HCFC–142b. Vending machines (retrofit only) ..... Hot Shot 2 as a substitute for Acceptable ...... The manufacturer has an acceptable exposure CFC–12, R–500, R–502, limit of 1,000 ppm over an 8-hour time-weighted HCFC–22 and HCFC blends, average for Hot Shot 2. including those containing HCFC–22 and/or HCFC–142b. Commercial ice machines (retrofit Hot Shot 2 as a substitute for Acceptable ...... The manufacturer has an acceptable exposure only). CFC–12, R–500, R–502, limit of 1,000 ppm over an 8-hour time-weighted HCFC–22 and HCFC blends, average for Hot Shot 2. including those containing HCFC–22 and/or HCFC–142b. Commercial ice machines (retrofit R–407F as a substitute for Acceptable ...... The AIHA has established WEELs of 1,000 ppm and new). HCFC–22 and HCFC blends, over an 8-hour time-weighted average for each including those containing of R–407F’s individual components. HCFC–22 and/or HCFC–142b. Residential dehumidifiers (retrofit Hot Shot 2 as a substitute for Acceptable ...... The manufacturer has an acceptable exposure only). CFC–12, R–500, HCFC–22 limit of 1,000 ppm over an 8-hour time-weighted and HCFC blends, including average for Hot Shot 2. those containing HCFC–22 and/or HCFC–142b. Household refrigerators and freez- R–407F as a substitute for Acceptable ...... The AIHA has established WEELs of 1,000 ppm ers (retrofit and new). HCFC–22 and HCFC blends, over an 8-hour time-weighted average for each including those containing of R–407F’s individual components. HCFC–22 and/or HCFC–142b. Motor vehicle air conditioning (ret- R–407F as a substitute for Acceptable ...... The AIHA has established WEELs of 1,000 ppm rofit and new-bus and passenger HCFC–22 and HCFC blends, over an 8-hour time-weighted average for each trains only). including those containing of R–407F’s individual components. HCFC–22 and/or HCFC–142b. Household and light commercial air Hot Shot 2 as a substitute for Acceptable ...... The manufacturer has an acceptable exposure conditioning and heat pumps (ret- CFC–12, R–502, HCFC–22 limit of 1,000 ppm over an 8-hour time-weighted rofit only). and HCFC blends, including average for Hot Shot 2. those containing HCFC–22 and/or HCFC–142b. Household and light commercial air R–407F as a substitute for CFC– Acceptable ...... The AIHA has established WEELs of 1,000 ppm conditioning and heat pumps (ret- 12, R–502, HCFC–22 and over an 8-hour time-weighted average for each rofit and new). HCFC blends, including those of R–407F’s individual components. containing HCFC–22 and/or HCFC–142b.

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REFRIGERATION AND AIR CONDITIONING—Continued

End-Use Substitute Decision Further information 1

Very low temperature refrigeration R–507A as a substitute for R– Acceptable ...... The AIHA has established WEELs of 1,000 ppm (retrofit). 13B1. over an 8-hour time-weighted average for each of R–507A’s individual components. 1 Users should observe recommendations in the manufacturer’s MSDS and guidance for all listed refrigerants.

SOLVENT CLEANING

End-Uses Substitute Decision Further information

Metals cleaning ...... Perfluorobutyl iodide (PFBI) as a Acceptable ...... PFBI has an ODP of less than 0.005 and a 100- substitute for CFC–113, methyl year global warming potential of less than 5. Its chloroform, and HCFC–225ca, Chemical Abstracts Service Registry number HCFC–225cb, and blends (CAS Reg. No.) is 423–39–2. thereof. Electronics cleaning ...... EPA recommends an acceptable exposure limit of 375 ppm over an 8-hour time-weighted average for PFBI. Precision cleaning ...... Observe recommendations in the manufacturer’s MSDS and guidance for using this substitute, particularly with respect to disposal consider- ations. EPA recommends that spent solvent is collected for reclamation or incineration, mate- rials that contain or contaminated with solvents are incinerated, and that solvent-contaminated wastewater is sent to a wastewater treatment fa- cility to prevent the solvent from entering water- ways. PFBI is currently defined as a volatile organic com- pound (VOC) under CAA regulations (see 40 CFR 51.100(s)) addressing the development of State Implementation Plans (SIPs) to attain and maintain the national ambient air quality stand- ards.

FIRE SUPPRESSION

End-Use Substitute Decision Further information 12

Total flooding systems (occupied Firebane® 1179 as a substitute Acceptable ...... EPA recommends that use of this system should and unoccupied areas). for halon 1301. be in accordance with the manufacturer’s MSDS. N2 Towers® System as a sub- Acceptable ...... EPA recommends that use of this system should stitute for halon 1301. be in accordance with the safe exposure guide- lines for inert gas systems in the latest edition of NFPA 2001 Standard on Clean Agent Fire Extin- guishing Systems, specifically the requirements for residual oxygen levels, and use should be in accordance with the NFPA Standard 2010 for Aerosol Extinguishing Systems. Streaming agents ...... Firebane® All-Weather 1115 and Acceptable ...... EPA recommends that use of these systems be in Firebane® 1115 as substitutes accordance with the latest edition of NFPA 10 for halon 1211. Standard for Portable Extinguishers. Firebane® 1170 and Firebane® Acceptable ...... EPA recommends that use of these systems be in 1179 as substitutes for halon accordance with the latest edition of NFPA 10 1211. Standard for Portable Extinguishers. 1 EPA recommends that users consult Section VIII of the OSHA Technical Manual for information on selecting the appropriate types of per- sonal protective equipment for all listed fire suppression agents. EPA has no intention of duplicating or displacing OSHA coverage related to the use of personal protective equipment (e.g., respiratory protection), fire protection, hazard communication, worker training or any other occupa- tional safety and health standard with respect to halon substitutes. 2 Use of all listed fire suppression agents should conform to relevant OSHA requirements, including 29 CFR part 1910, subpart L, sections 1910.160 and 1910.162.

[FR Doc. 2011–25391 Filed 10–3–11; 8:45 am] BILLING CODE 6560–50–P

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DEPARTMENT OF HOMELAND Division, Wireline Competition Bureau, information, has been most recently SECURITY at [email protected]. approved to be: SUPPLEMENTARY INFORMATION: On June For 3060–0370: 859 responses, for a Federal Emergency Management 23 2000, OMB approved the information total of 859 hours, and no annual costs. Agency collection requirements contained in For 3060–0742: 10,001,890 responses, § 32.2000 of title 47 of the United States 44 CFR Part 67 for a total of 672,516 hours and Code as a revision to OMB Control $13,423,321 in annual costs. [Docket ID FEMA–2011–0002] Number 3060–0370. On September 12, 2000, OMB For 3060–0298: 1,160 responses, for a Final Flood Elevation Determinations approved the information collection total annual burden of 58,000 hours, and $945,400 in annual costs. Correction requirements contained in § 52.33 of title 47 of the United States Code as a For 3060–1096: 1,896 responses, for a In rule document 2011–15507, revision to OMB Control Number 3060– total of 15,800 hours, and no annual beginning on page 36373, in the issue of 0370. costs. Wednesday June 22, 2011, make the On October 22, 2002 OMB approved An agency may not conduct or following corrections: the information collection requirements sponsor a collection of information § 67.11 [Corrected] contained in § 52.33(a)(3) of title 47 of unless it displays a current valid OMB the United States Code as a revision to 1. On page 36379, in the first column Control Number. No person shall be OMB Control Number 3060–0742. subject to any penalty for failing to of the table for Clinton County, Iowa, On May 25, 2005, OMB approved the ‘‘Unincorporated Areas of Clinton comply with a collection of information information collection requirements subject to the Paperwork Reduction Act, County’’ should not have appeared. contained in §§ 61.38(b)(4), 61.41(c), (d) 2. On the same page, in the first which does not display a current, valid and (e) and 69.123 of title 47 of the column of the table for Muscatine OMB Control Number. The foregoing United States Code as a revision to OMB County, Iowa, ‘‘Unincorporated Areas of notice is required by the Paperwork Control Number 3060–0298. Muscatine County, Iowa’’ should not Reduction Act of 1995, Public Law 104– On February 5, 2007, OMB approved have appeared. 13, October 1, 1995, and 44 U.S.C. 3507. the information collection requirements [FR Doc. C1–2011–15507 Filed 10–3–11; 8:45 am] contained in § 64.5001 of title 47 of the List of Subjects in 47 CFR Parts 32, 52, BILLING CODE 1505–01–D United States Code as a new collection, 61, 64, and 69 OMB Control Number 3060–1096. These information collection requirements Communications common carriers, FEDERAL COMMUNICATIONS required OMB approval to become reporting and Recordkeeping COMMISSION effective. The Commission publishes requirements, Telephone, this document as an announcement of Telecommunications, Uniform system 47 CFR Parts 32, 52, 61, 64, and 69 those approvals. If you have any of accounts. comments on the burden estimates Federal Communications Commission. Communications Common Carriers, listed below, or how the Commission Reporting and Recordkeeping Marlene H. Dortch, can improve the collections and reduce Requirements, Telephone, Secretary. any burdens caused thereby, please Telecommunications, Uniform System [FR Doc. 2011–25586 Filed 10–3–11; 8:45 am] contact Thomas Butler, Federal of Accounts BILLING CODE 6712–01–P Communications Commission, Room 5– AGENCY: Federal Communications C458, 445 12th Street, SW., Washington, Commission. DC 20554. Please include the OMB ACTION: Final rule; announcement of Control Numbers, 3060–0370, 3060– DEPARTMENT OF DEFENSE effective date. 0742, 3060–0298, and 3060–1096 in your correspondence. The Commission Defense Acquisition Regulations SUMMARY: This document announces the will also accept your comments via the System approval of the Office of Management Internet if you send them to and Budget (OMB) for information [email protected]. 48 CFR Parts 212, 247, and 252 collection requirements in the sections To request materials in accessible outlined in the DATES section. formats for people with disabilities RIN 0750–AG25 DATES: Effective October 4, 2011, the (Braille, large print, electronic files, following regulations have been audio format), send an e-mail to Defense Federal Acquisition approved by OMB: [email protected] or call the Consumer & Regulation Supplement; Defense 32.2000—64 FR 50007, September 15, Governmental Affairs Bureau at (202) Cargo Riding Gang Member (DFARS 1999. 418–0530 (voice, (202) 419–0432 (TTY). Case 2007–D002) 52.33—63 FR 35161, June 29, 1998. Synopsis: As required by the 52.33(a)(3)—67 FR 40620, June 13, Paperwork Reduction Act of 1995 (44 AGENCY: Defense Acquisition 2002. U.S.C. 3507), the FCC is notifying the Regulations System, Department of 61.38(b)(4)—69 FR 25336, May 6, public that it received OMB approval for Defense (DoD). 2004. the information collection requirements 61.41(c), (d) and (e)—69 FR 25336, described above. The OMB Control ACTION: Final rule. May 6, 2004. Numbers are 3060–0370, 3060–0742, 64.5001—71 FR 43673, August 2, 3060–0298 and 3060–1096. The total SUMMARY: DoD is adopting as final, with 2006. annual reporting burden for respondents changes, an interim rule amending the 69.123—69 FR 25336, May 6, 2004. for these collections of information, Defense Federal Acquisition Regulation FOR FURTHER INFORMATION CONTACT: including the time for gathering and Supplement (DFARS) to implement Lynne Hewitt Engledow, Pricing Policy maintaining the collection of section 3504 of the National Defense

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Authorization Act for Fiscal Year 2009. practicable to existing contracts, applied to riding gang members on U.S.- Section 3504 addresses requirements consistent with FAR 1.108(d). flag freight vessels generally under 46 that apply to riding gang members and U.S.C. 8106. It is, therefore, II. Discussion and Analysis DoD-exempted individuals who perform recommended that the language of the work on U.S.-flag vessels under DoD Two respondents submitted a total of proposed clause be amended to read as contracts for transportation services. three comments on the interim rule. A follows to reinforce DoD’s role in the The final rule also makes an discussion of the comments received approval process: administrative change to a cross- and the resulting changes made to the ‘‘The Contractor shall submit the reference. rule follows. name and other necessary information for a background check to the DoD DATES: Effective Date: October 4, 2011. A. Background Checks Contracting Officer or his designee for FOR FURTHER INFORMATION CONTACT: These comments relate to the clause approval.’’ Meredith Murphy, telephone 703–602– at 252.247–7027(c)(2) as promulgated, DoD response: The contracting officer 1302. which requires that any individual who or designee is not the approving official SUPPLEMENTARY INFORMATION: is exempted by paragraph (c)(1) of the for the background check. The clause clause from the requirements imposed I. Background has been revised to state that ‘‘the on riding gang members by 46 U.S.C. Contractor is required to submit the DoD published an interim rule at 75 8106 must pass a DoD background name and other biographical FR 65437 on October 25, 2010, to check before going aboard a vessel. With information necessary to the implement section 3504 of the National regard to these exempt individuals, the Government official specified in the Defense Authorization Act (NDAA) for contractor shall submit the name and contract for the purposes of conducting Fiscal Year (FY) 2009 (Pub. L. 110–417). ‘‘other necessary information’’ for a a background check.’’ The Government Section 3504 amended section 1018 of background check to the Government official specified in the contract could the NDAA for FY 2007 (Pub. L. 109– official specified in the contract. be the program manager, contracting 364). Comment: One respondent officer, or other designee depending Section 3504 addresses requirements recommended that, in order to ensure upon the contract and agency. Contact that apply to riding gang members and consistency of information required information for the specific DoD law DoD-exempted individuals who perform across DoD contracting agencies, the enforcement agency approving the work on U.S.-flag vessels under DoD final rule include guidelines as to what background check, COMSC N34 contracts for transportation services is considered ‘‘additional necessary (Director of Force Protection for Military documented under chapter 121, title 46 information’’ in the case of an alien to Sealift Command), and specific U.S.C. Section 3504 also applies to be employed on a vessel under procedural guidance for DoD personnel commercial contracts for carriage of subparagraphs (i)–(iv) of paragraph obtaining the background check is cargo by a U.S.-flag vessel documented (c)(1). Such guidelines could, for contained in the DFARS companion under chapter 121 of title 46 U.S.C. example, be constructed to be limited/ resource, Procedures, Guidance, and Such riding gang members must hold a consistent with the types of personal Information (PGI), at PGI 247.5. U.S. Merchant Mariner’s Document identifying and employment-related issued under 46 U.S.C., chapter 73, or information required to obtain a U.S. B. Language Inconsistency a transportation security card issued nonimmigrant visa for an individual to Comment: DFARS 252.247–7027(a) under section 70105 of such title. enter the U.S. temporarily for business defines ‘‘riding gang member’’ as it is Section 3504 also permits exemptions as required for an alien to be eligible for defined at 46 U.S.C. 8106. That statutory for certain individuals, provided a issuance of a transportation security definition of ‘‘riding gang member’’ background check of the individual is card under 46 U.S.C. 70105, including describes an individual who does not conducted. inter alia, a C–1/D Crewman Visa. perform certain duties and ‘‘has not U.S. law requires crews of DoD Response: The clause at 252.247– been issued a Merchant Mariner’s predominantly U.S. citizens aboard 7027 has been revised to state that the Document * * *.’’ One respondent U.S.-flag vessels. For many years, contractor will submit the name and noted that DFARS 252.247–7027(b) foreign nationals have been utilized on other ‘‘biographical’’ information states ‘‘Notwithstanding 46 U.S.C. 8106, U.S.-flag vessels as members of ‘‘riding necessary to the Government official the Contractor shall ensure each riding gangs’’ who perform work beyond specified in the contract for the gang member holds a valid U.S. standard vessel maintenance and repair purposes of conducting a background Merchant Mariner’s Document issued while ships are underway. In 2006, check. The term biographical under 46 U.S.C. chapter 73, or a Congress prohibited the use of such encompasses the following examples of transportation security card * * *.’’ foreign riding personnel on board information required, such as last DoD response: The implementing vessels that are under contract with DoD (previous and current), first, and middle language of the interim rule is unless DoD complied with certain name, date of birth, social security consistent with the statutory language. limitations (The Coast Guard and account number, passport number, and Section 3504 of the NDAA for FY 2009, Maritime Transportation Act of 2006, nationality listed on the passport, as Public Law 110–417, required the Pub. L. 109–241). The exceptions applicable. Secretary of Defense to include clauses provided to DoD in 2006 did not match Comment: A respondent commented in certain contracts implementing the those applicable to other U.S.-flag on the ‘‘approving official specified in riding gang member provisions of 46 vessels. The NDAA for FY 2009 made it the contract.’’ The underlying rationale U.S.C. 8106 and requiring that riding clear that the exceptions available to for the exemptions provided by section gang members be issued a Merchant DoD are complete exemptions both from 3504 of the FY 2009 NDAA, was to grant Mariner’s Document or a transportation the DoD-specific riding gang limitations DoD greater flexibility to allow security card. As such, the interim rule and those generally applicable to U.S.- individuals to perform functions merely implements the requirement of flag vessels. unrelated to the operation or the statute. Contracting officers are encouraged to maintenance of the vessel transporting The initial legislative proposal that apply this rule to the maximum extent DoD cargoes, outside the parameters resulted in section 3504 contained a

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section-by-section analysis that exemptions for the use of riding gang PART 212—ACQUISITION OF specifically identified the apparent members on U.S.-flag vessels under COMMERCIAL ITEMS inconsistency noted by the respondent. charter or contract to DoD for the DoD determined that Congress intended carriage of DoD cargo. The requirements 212.301 [Amended] for the language in 46 U.S.C. 8106 in the of the rule will apply to entities ■ 2. Amend section 212.301 in definition of ‘‘riding gang member’’ interested in receiving DoD contracts for paragraph (f)(iv)(D) by removing the title pertaining to the Merchant Mariner’s carriage of DoD cargo. of the clause ‘‘Radio Frequency Document to be modified, as applicable, The rule requires the contractor to Identification’’ and adding in its place to DoD in 10 U.S.C. 1018 by requiring ensure that each riding gang member ‘‘Passive Radio Frequency that each riding gang member have holds a valid U.S. Merchant Mariner’s Identification’’ and by removing either a Merchant Mariner’s Document Document issued under 46 U.S.C. paragraph (f)(iv)(M). or a transportation security card. chapter 73, or a transportation security Accordingly, the ‘‘Notwithstanding 46 PART 247—TRANSPORTATION card issued under section 70105 of such U.S.C. 8106’’ language of DFARS title. Any individual who is exempt ■ 252.247–7027 accurately implements 3. Amend section 247.574 by revising from these requirements must pass a section 3504 and is consistent with paragraph (f) to read as follows: DoD background check before going Congressional intent. aboard the vessel. With regard to these 247.574 Solicitation provisions and C. Other Changes exempt individuals, the contractor shall contract clauses. The final rule adds clause 252.247– submit the name and other necessary * * * * * (f) Use the clause at 252.247–7027, 7027, Riding Gang Member identifying information for a Riding Gang Member Requirements, in Requirements, to the list of clauses at background check to the approving solicitations and contracts for the 252.212–7001 that are required to official specified in the contract. charter of, or contract for carriage of implement statutes or executive orders There is no reporting or cargo by, a U.S.-flag vessel documented applicable to defense acquisitions of recordkeeping requirement established under chapter 121 of title 46 U.S.C. commercial items because section 3504 by this rule. This rule does not Follow the procedures at PGI 247.574. also applies to commercial contracts for duplicate, overlap, or conflict with any carriage of cargo by a U.S.-flag vessel other Federal rules. DoD anticipates that PART 252—SOLICITATION documented under chapter 121 of title there will be limited, if any, additional PROVISIONS AND CONTRACT 46 U.S.C. and, in a related change, costs imposed on small businesses. No CLAUSES removes it from the list at 212.301(f). comments were received in response to Additionally, the final rule revises the the initial regulatory flexibility analysis ■ 4. Amend section 252.212–7001 by cross-reference to 252.211–7006 at as published in the interim rule. removing the clause date ‘‘(SEP 2011)’’ 212.301(f)(iv)(D) to reflect the correct and adding in its place ‘‘(OCT 2011)’’ title of the clause. Interested parties may obtain a copy of the FRFA from the point of contact and adding paragraph (b)(30) to read as III. Executive Orders 12866 and 13563 named herein. A copy of the FRFA has follows: Executive Orders (E.O.s) 12866 and been submitted to the Chief Counsel for 252.212–7001 Contract Terms and 13563 direct agencies to assess all costs Advocacy of the Small Business Conditions Required to Implement Statutes and benefits of available regulatory Administration. or Executive Orders Applicable to Defense Acquisitions of Commercial Items. alternatives and, if regulation is V. Paperwork Reduction Act necessary, to select regulatory * * * * * approaches that maximize net benefits The rule does not impose any (b) * * * (including potential economic, information collection requirements that (30) ll 252.247–7027, Riding Gang environmental, public health and safety require the approval of the Office of Member Requirements (OCT 2011) effects, distributive impacts, and Management and Budget under the (Section 3504 of Pub. L. 110–417). equity). E.O. 13563 emphasizes the Paperwork Reduction Act (44 U.S.C. * * * * * importance of quantifying both costs chapter 35). ■ 5. Amend section 252.247–7027 by and benefits, of reducing costs, of removing the clause date ‘‘(OCT 2010)’’ List of Subjects in 48 CFR Parts 212, harmonizing rules, and of promoting and adding in its place ‘‘(OCT 2011)’’ 247, and 252 flexibility. This is a significant and revising paragraph (c)(2) to read as regulatory action and, therefore, was Government procurement. follows: subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Ynette R. Shelkin, 252.247–7027 Riding Gang Member Requirements. Review, dated September 30, 1993. This Editor, Defense Acquisition Regulations rule is not a major rule under 5 U.S.C. System. * * * * * 804. (c) * * * Accordingly, the interim rule (2) Any individual who is exempt IV. Regulatory Flexibility Act amending 48 CFR parts 212, 247, and under paragraph (c)(1) of this clause DoD does not expect this final rule to 252, which was published at 75 FR must pass a DoD background check have a significant economic impact on 65437 on October 25, 2010, is adopted before going aboard the vessel. a substantial number of small entities as a final rule with the following (i) The Contractor shall— within the meaning of the Regulatory changes: (A) Render all necessary assistance to U.S. Armed Forces personnel with Flexibility Act, 5 U.S.C. 601, et seq. DoD ■ has prepared a final regulatory 1. The authority citation for 48 CFR respect to the identification and flexibility analysis (FRFA), which is parts 212, 247, and 252 continues to screening of exempted individuals. This summarized as follows: read as follows: will require, at a minimum, the The objective of the rule is to provide Authority: 41 U.S.C. 1303 and 48 CFR Contractor to submit the name and other authorization, restrictions, and chapter 1. biographical information necessary to

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the Government official specified in the available off-the-shelf item’’ or reference Business Act, which in turn allows the contract for the purposes of conducting the definition in the FAR, because there U.S. Small Business Administration a background check; and is nothing that says that the definitions (SBA) Administrator to specify detailed (B) Deny access or immediately in the FAR necessarily apply to the definitions or standards (5 U..S.C 601(3) remove any individual(s) from the DFARS. and 15 U.S.C. 632(a)). The SBA vessel deemed unsuitable for any reason Response: The DFARS implements regulations at 13 CFR 121.105 discuss by Military Sealift Command Force and supplements the FAR (see FAR who is a small business: ‘‘(a)(1) Except Protection personnel. The Contractor subpart 1.3). Unless the DFARS for small agricultural cooperatives, a agrees to replace any such individual specifically makes a statement to the business concern eligible for assistance promptly and require such replacements contrary, everything in the FAR is the from SBA as a small business is a to fully comply with all screening basis upon which the DFARS is built. business entity organized for profit, requirements. No change to the rule is necessary on with a place of business located in the (ii) The head of the contracting the basis of this comment. United States, and which operates activity may waive this requirement if III. Other Changes primarily within the United States or the individual possesses a valid U.S. which makes a significant contribution Merchant Mariner’s Document issued As a technical update, the more recent to the U.S. economy through payment of under 46 U.S.C. chapter 73, or a definition of ‘‘qualifying country’’ in taxes or use of American products, transportation security card issued 225.003 is incorporated in two of the materials or labor.’’ under section 70105 of such title. clauses changed by the final rule, rather The comparable change has already * * * * * than citing to the list of qualifying been enacted for the benefit of U.S. countries at 225.872–1. This has no [FR Doc. 2011–25233 Filed 10–3–11; 8:45 am] manufacturers of COTS items. practical impact, because the two lists BILLING CODE 5001–06–P contain the same countries. The VI. Paperwork Reduction Act definition was added to DFARS 225.003 The rule does not impose any DEPARTMENT OF DEFENSE to reduce confusion, because the list at information collection requirements that DFARS 225.872–1 is split into two require the approval of the Office of Defense Acquisition Regulations paragraphs, (a) and (b), which Management and Budget under 44 System sometimes leads to misinterpretation of U.S.C. (chapter 35). the status of countries that are listed in 48 CFR Part 252 paragraph (b). List of Subjects in 48 CFR Part 252 RIN 0750–AH21 IV. Executive Orders 12866 and 13563 Government procurement. Executive Orders (E.O.s) 12866 and Ynette R. Shelkin, Defense Federal Acquisition 13563 direct agencies to assess all costs Editor, Defense Acquisition Regulations Regulation Supplement; Definition of and benefits of available regulatory System. ‘‘Qualifying Country End Product’’ alternatives and, if regulation is (DFARS Case 2011–D028) Therefore, 48 CFR part 252 is necessary, to select regulatory amended as follows: AGENCY: Defense Acquisition approaches that maximize net benefits Regulations System, Department of (including potential economic, PART 252—SOLICITATION Defense (DoD). environmental, public health and safety PROVISIONS AND CONTRACT ACTION: Final rule. effects, distributive impacts, and CLAUSES equity). E.O. 13563 emphasizes the ■ SUMMARY: DoD is issuing a final rule importance of quantifying both costs 1. The authority citation for 48 CFR amending the Defense Federal and benefits, of reducing costs, of part 252 continues to read as follows: Acquisition Regulation Supplement harmonizing rules, and of promoting Authority: 41 U.S.C. 1303 and 48 CFR (DFARS) to revise the definition of flexibility. This is not a significant chapter 1. ‘‘qualifying country end product.’’ This regulatory action and, therefore, was not 252.212–7001 [Amended] final rule eliminates the component test subject to review under section 6(b) of for qualifying country end products that E.O. 12866, Regulatory Planning and ■ 2. Amend section 252.212–7001 as are commercially available off-the-shelf Review, dated September 30, 1993. This follows: items. rule is not a major rule under 5 U.S.C. ■ a. Remove the clause date ‘‘(SEP DATES: Effective date: October 4, 2011. 804. 2011)’’ and add in its place ‘‘(OCT FOR FURTHER INFORMATION CONTACT: 2011)’’; Amy G. Williams, telephone 703–602– V. Regulatory Flexibility Act ■ b. In paragraph (b)(6)(i), remove the 0328. DoD certifies that this rule will not clause date ‘‘(JAN 2009)’’ and add in its SUPPLEMENTARY INFORMATION: have a significant impact on a place ‘‘(OCT 2011)’’ and in paragraph substantial number of small entities (b)(6)(ii), remove the clause date ‘‘(DEC I. Background within the meaning of the Regulatory 2010)’’ and add in its place ‘‘(OCT DoD published a proposed rule in the Flexibility Act, 5 U.S.C. 601, et seq., 2011)’’; Federal Register at 76 FR 32845 on June because the rule only affects ■ c. In paragraph (b)(12)(i), remove the 6, 2011, to amend the definition of manufacturers of COTS items in clause date ‘‘(JUN 2011)’’ and add in its qualifying country end product. One qualifying countries, removing an place ‘‘(OCT 2011)’’, in paragraph comment was received in response to administrative burden for the qualifying (b)(12)(ii), remove the clause date ‘‘(SEP the proposed rule. country manufacturer and the 2008)’’ and add in its place ‘‘(OCT Government personnel acquiring the 2011)’’, and in paragraph (b)(12)(iii), II. Discussion and Analysis of Public items. No domestic entities will be remove the clause date ‘‘(DEC 2010)’’ Comment impacted by this rule. For the definition and add in its place ‘‘(OCT 2011)’’; and Comment: The respondent stated that of ‘‘small business,’’ the Regulatory ■ d. In paragraph (b)(15)(i), remove the we need to define ‘‘commercially Flexibility Act refers to the Small clause date ‘‘(DEC 2010)’’ and add in its

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place ‘‘(OCT 2011)’’, in paragraph quantities of a satisfactory quality are Germany, Greece, Israel, Italy, (b)(15)(ii), remove the clause date ‘‘(JUL not mined, produced, or manufactured Luxembourg, Netherlands, Norway, 2009)’’ and add in its place ‘‘(OCT in the United States; or Portugal, Spain, Sweden, Switzerland, 2011)’’, and in paragraphs (b)(15)(iii) (B) The end product is a COTS item. Turkey, United Kingdom of Great and (b)(15)(iv), remove the clause date * * * * * Britain and Northern Ireland. ‘‘(DEC 2010)’’ and add in its place Qualifying country end product ■ 4. Amend section 252.225–7021 as ‘‘(OCT 2011)’’. means— follows: (i) An unmanufactured end product ■ 3. Amend section 252.225–7001 as ■ a. Remove the clause date ‘‘(JUN mined or produced in a qualifying follows: 2011)’’ and add in its place ‘‘(OCT ■ a. Remove the clause date ‘‘(SEP 2011)’’; country; or 2011)’’ and add in its place ‘‘(OCT ■ b. In paragraph (a), remove the (ii) An end product manufactured in 2011)’’; number preceding each definition, add a qualifying country if— ■ b. In paragraph (a), remove the in alphabetical order the definition for (A) The cost of the following types of number preceding each definition and ‘‘Commercially available off-the-shelf components exceeds 50 percent of the revise the definitions for ‘‘Qualifying (COTS) item’’, and revise the definitions cost of all its components: country’’ and ‘‘Qualifying country end for ‘‘Qualifying country’’ and (1) Components mined, produced, or product; ‘‘Qualifying country end product; manufactured in a qualifying country. ■ c. In Alternate I, remove the clause ■ c. In Alternate I, revise the clause (2) Components mined, produced, or date ‘‘(DEC 2010)’’ and add in its place date, revise the introductory text, and, manufactured in the United States. ‘‘(OCT 2011)’’ and in paragraph (a), in paragraph (a), remove the number (3) Components of foreign origin of a remove the numbers preceding each preceding the definition; class or kind for which the Government definition. d. In Alternate II, remove the clause has determined that sufficient and date ‘‘(DEC 2010)’’ and add in its place reasonably available commercial 252.225–7001 Buy American Act and ‘‘(OCT 2011)’’ and, in paragraph (a), quantities of a satisfactory quality are Balance of Payments Program. remove the numbers preceding the not mined, produced, or manufactured * * * * * definitions. in the United States; or (a) * * * (B) The end product is a COTS item. Qualifying country means a country 252.225–7021 Trade Agreements. * * * * * with a reciprocal defense procurement * * * * * memorandum of understanding or (a) * * * ALTERNATE I (OCT 2011) international agreement with the United Commercially available off-the-shelf As prescribed in 225.1101(6)(ii), add States in which both countries agree to (COTS) item. (i) Means any item of the following definition to paragraph (a) remove barriers to purchases of supplies supply (including construction material) of the basic clause and substitute the produced in the other country or that is— following paragraph (c) for paragraph (c) services performed by sources of the (A) A commercial item (as defined in of the basic clause: other country, and the memorandum or paragraph (1) of the definition of agreement complies, where applicable, ‘‘commercial item’’ in section 2.101 of * * * * * with the requirements of section 36 of the Federal Acquisition Regulation); ■ 5. Amend section 252.225–7036 as the Arms Export Control Act (22 U.S.C. (B) Sold in substantial quantities in follows: 2776) and with 10 U.S.C. 2457. the commercial marketplace; and ■ a. Remove the clause date ‘‘(DEC Accordingly, the following are (C) Offered to the Government, under 2010)’’ and add in its place ‘‘(OCT qualifying countries: a contract or subcontract at any tier, 2011)’’; Australia, Austria, Belgium, Canada, without modification, in the same form ■ b. In paragraph (a), remove the Denmark, Egypt, Finland, France, in which it is sold in the commercial numbers preceding the definitions and Germany, Greece, Israel, Italy, marketplace; and revise the definition for ‘‘Qualifying Luxembourg, Netherlands, Norway, (ii) Does not include bulk cargo, as country end product’’; defined in section 4 of the Shipping Act Portugal, Spain, Sweden, Switzerland, ■ c. In Alternate I, revise the clause of 1984 (46 U.S.C. 40102), such as Turkey, United Kingdom of Great date, revise the introductory text, and, agricultural products and petroleum Britain and Northern Ireland. in paragraph (a), remove the number products. * * * * * preceding the definition; and Qualifying country end product * * * * * ■ d. In Alternates II and III, remove the means— Qualifying country means a country clause date ‘‘(DEC 2010)’’ and add in its (i) An unmanufactured end product with a reciprocal defense procurement place ‘‘(OCT 2011)’’ and in paragraph mined or produced in a qualifying memorandum of understanding or (a), remove the numbers preceding the country; or international agreement with the United definitions. (ii) An end product manufactured in States in which both countries agree to a qualifying country if— remove barriers to purchases of supplies 252.225–7036 Buy American Act—Free (A) The cost of the following types of produced in the other country or Trade Agreements—Balance of Payments Program. components exceeds 50 percent of the services performed by sources of the cost of all its components: other country, and the memorandum or * * * * * (1) Components mined, produced, or agreement complies, where applicable, (a) * * * manufactured in a qualifying country. with the requirements of section 36 of Qualifying country end product (2) Components mined, produced, or the Arms Export Control Act (22 U.S.C. means— manufactured in the United States. 2776) and with 10 U.S.C. 2457. (i) An unmanufactured end product (3) Components of foreign origin of a Accordingly, the following are mined or produced in a qualifying class or kind for which the Government qualifying countries: country; or has determined that sufficient and Australia, Austria, Belgium, Canada, (ii) An end product manufactured in reasonably available commercial Denmark, Egypt, Finland, France, a qualifying country if—

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(A) The cost of the following types of other supporting documentation may be on an evaluation of golden tilefish components exceeds 50 percent of the obtained from Catherine Bruger, NMFS, recreational landings for the 2010 cost of all its components: Southeast Regional Office, 263 13th fishing year. (1) Components mined, produced, or Avenue South, St. Petersburg, FL 33701; Finalized landings data from the manufactured in a qualifying country. telephone: 727–824–5305. NMFS Southeast Fisheries Science (2) Components mined, produced, or FOR FURTHER INFORMATION CONTACT: Center indicate that the recreational manufactured in the United States. Catherine Bruger, telephone: 727–824– golden tilefish ACL was exceeded by (3) Components of foreign origin of a 5305, fax: 727–824–5308, e-mail: 2,805 fish in 2010. Therefore, this class or kind for which the Government [email protected]. temporary rule implements an AM to has determined that sufficient and reduce the fishing season for the SUPPLEMENTARY INFORMATION: The reasonably available commercial recreational golden tilefish component snapper-grouper fishery of the South quantities of a satisfactory quality are of the snapper-grouper fishery from Atlantic is managed under the Fishery not mined, produced, or manufactured October 6, 2011 until January 1, 2012. Management Plan for the Snapper- in the United States; or As a result of this reduced season, the Grouper Fishery of the South Atlantic (B) The end product is a COTS item. recreational sector for golden tilefish Region (FMP). Golden tilefish are * * * * * will be closed effective 12:01 a.m., local managed under this FMP. The FMP was time October 6, 2011. ALTERNATE I (OCT 2011) prepared by the South Atlantic Fishery The 2012 recreational fishing season Management Council and is As prescribed in 225.1101(11)(i)(B), for golden tilefish will begin on January implemented under the authority of the 1, 2012, through December 31, 2012, add the following definition to Magnuson-Stevens Fishery paragraph (a) and substitute the unless AMs are implemented due to an Conservation and Management Act ACL overage and a reduced fishing following paragraph (c) for paragraph (c) (Magnuson-Stevens Act) by regulations of the basic clause: season is specified through notification at 50 CFR part 622. in the Federal Register. * * * * * Background Commencing 12:01 a.m., local time on [FR Doc. 2011–25234 Filed 10–3–11; 8:45 am] October 6, 2011, the bag limit and BILLING CODE 5001–06–P The 2006 reauthorization of the possession limits specified in 50 CFR Magnuson-Stevens Act implemented 622.39(d)(1)(ii) and (d)(2), respectively, new requirements that ACLs and AMs are zero and apply to all recreational DEPARTMENT OF COMMERCE be established to end overfishing and harvest or possession of golden tilefish prevent overfishing from occurring. in or from the South Atlantic exclusive National Oceanic and Atmospheric AMs are management controls to economic zone. Administration prevent ACLs from being exceeded, and to correct or mitigate overages of the Classification 50 CFR Part 622 ACL if they occur. The Administrator, Southeast Region, On December 30, 2010, NMFS issued NMFS, (RA) has determined this [Docket No. 0907271173–0629–03] a final rule (75 FR 82280) to implement temporary rule is necessary for the RIN 0648–XA701 Amendment 17B to the FMP conservation and management of the (Amendment 17B). Amendment 17B South Atlantic golden tilefish Accountability Measures and Reduced established ACLs for eight snapper- component of the South Atlantic Season for the South Atlantic grouper species in the FMP that are snapper-grouper fishery and is Recreational Sector of Golden Tilefish undergoing overfishing, including consistent with the Magnuson-Stevens for the 2011 Fishing Year golden tilefish, and AMs to be Act and other applicable laws. implemented if these ACLs are reached This action is taken under 50 CFR AGENCY: National Marine Fisheries or exceeded. 622.43(a) and is exempt from review Service (NMFS), National Oceanic and The recreational ACL for golden under Executive Order 12866. Atmospheric Administration (NOAA), tilefish, implemented through These measures are exempt from the Commerce. Amendment 17B, is 1,578 fish. In procedures of the Regulatory Flexibility ACTION: Temporary rule. accordance with regulations at 50 CFR Act because the temporary rule is issued 622.49(b)(1)(ii), if the ACL is exceeded, without opportunity for prior notice and SUMMARY: NMFS implements the Regional Administrator (RA) will comment. accountability measures (AMs) for the publish a notice to reduce the length of Pursuant to 5 U.S.C. 553(b)(B), there recreational sector of golden tilefish in the following fishing season by the is good cause to waive the requirements the South Atlantic for the 2011 fishing amount necessary to ensure landings do to provide prior notice and opportunity year through this temporary final rule. not exceed the recreational sector ACL for public comment on this temporary This rule reduces the length of the 2011 in the following fishing year. rule. Such procedures are unnecessary recreational fishing season for golden Additionally, in accordance with these because the AMs established by tilefish based on the 2010 recreational regulations, the recreational landings Amendment 17B and located at 50 CFR annual catch limit (ACL) overage, and as are evaluated relative to the ACL as 622.49(b)(1)(ii) have already been a result closes the recreational sector. follows: For 2010, only 2010 subject to notice and comment and This action is necessary to reduce recreational landings will be compared authorize the AA to file a notification overfishing of the South Atlantic golden to the ACL; in 2011, the average of 2010 with the Office of the Federal Register tilefish resource. and 2011 recreational landings will be to reduce the duration of the DATES: This rule is effective October 6, compared to the ACL; and in 2012 and recreational fishing season the following 2011 until 12:01 a.m., local time on subsequent fishing years, the most fishing year if an overage occurs in the January 1, 2012. recent 3-year running average prior fishing year. All that remains is to ADDRESSES: Copies of the final rule for recreational landings will be compared notify the public of the reduced Amendment 17B, the Environmental to the ACL. Therefore this temporary recreational fishing season for golden Assessment for Amendment 17B, and final rule is being implemented based tilefish for the 2011 fishing year.

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Additionally, there is a need to Assessment for Amendment 17B, and accordance with the regulations at 50 immediately notify the public of the other supporting documentation may be CFR 622.49 (b)(5)(ii)(C), as follows. For reduced recreational fishing season for obtained from Catherine Bruger, NMFS, 2010, only 2010 recreational landings golden tilefish for the 2011 fishing year, Southeast Regional Office, 263 13th will be compared to the ACL; in 2011, since golden tilefish are overfished and Avenue South, St. Petersburg, FL 33701; the average of 2010 and 2011 undergoing overfishing and this waiver telephone: 727–824–5305. recreational landings will be compared will help further protect the South FOR FURTHER INFORMATION CONTACT: to the ACL; and in 2012 and subsequent Atlantic golden tilefish resource. Also, Catherine Bruger, telephone: 727–824– fishing years, the most recent 3-year providing prior notice and opportunity 5305, fax: 727–824–5308, e-mail: running average recreational landings for public comment on this action [email protected]. will be compared to the ACL. would be contrary to the public interest For the 2010–2011 fishing year (June SUPPLEMENTARY INFORMATION: because many of those affected by the The 1, 2010–May 31, 2011), the recreational length of the recreational fishing season, snapper-grouper fishery of the South ACL for black sea bass was projected to particularly charter vessel and headboat Atlantic is managed under the Fishery be reached by February 12, 2011. In operations, book trips for clients in Management Plan for the Snapper- accordance with the regulations at 50 advance and, therefore need as much Grouper Fishery of the South Atlantic CFR 622.49 (b)(5)(ii)(A), NMFS time as possible to adjust business plans Region (FMP). The FMP was prepared published a temporary rule to close the to account for the reduced recreational by the South Atlantic Fishery black sea bass recreational sector on fishing season. Management Council (Council) and is February 12, 2011 (76 FR 5717, For the aforementioned reasons, the implemented under the authority of the February 2, 2011) for the remainder of AA also finds good cause to waive the Magnuson-Stevens Fishery the 2010–2011 fishing year. 30-day delay in the effectiveness of this Conservation and Management Act Additionally, recent finalized landings action under 5 U.S.C. 553(d)(3). (Magnuson-Stevens Act) by regulations data from the NMFS Southeast Fisheries at 50 CFR part 622. Authority: 16 U.S.C. 1801 et seq. Science Center (SEFSC) estimate that Background the 2010–2011 recreational ACL was Dated: September 29, 2011. exceeded by 67,253 lb (30,505 kg), Steven Thur, The 2006 reauthorization of the gutted weight. Therefore, NMFS reduces Acting Director, Office of Sustainable Magnuson-Stevens Act established new the black sea bass recreational sector Fisheries, National Marine Fisheries Service. requirements that ACLs and ACL for the 2011–2012 fishing year by [FR Doc. 2011–25536 Filed 9–29–11; 4:15 pm] accountability measures (AMs) be 67,253 lb (30,505 kg) to 341,747 lb BILLING CODE 3510–22–P implemented to end overfishing and (155,014 kg) effective October 4, 2011, prevent overfishing from occurring. through May 31, 2012. AMs are management controls to If recreational landings during the DEPARTMENT OF COMMERCE prevent ACLs from being exceeded, and 2011–2012 fishing year, as estimated by correct or mitigate the ACL if an overage the SEFSC Science and Research National Oceanic and Atmospheric occurs. Administration Director (SRD), reach the revised 2011– On December 30, 2010, NMFS issued 2012 recreational ACL of 341,747 lb a final rule (75 FR 82280) to implement 50 CFR Part 622 (155,014 kg), gutted weight, and black Amendment 17B to the FMP sea bass are overfished, the AA will file [Docket No. 0907271173–0629–03] (Amendment 17B). Amendment 17B a notification with the Office of the established ACLs for eight snapper- RIN 0648–XA698 Federal Register to close the recreational grouper species in the FMP that are sector for black sea bass for the Fisheries of the Caribbean, Gulf of undergoing overfishing, including black remainder of the fishing year. The 2012– Mexico, and South Atlantic; South sea bass, and AMs if these ACLs are 2013 recreational ACL for black sea bass Atlantic Snapper-Grouper Fishery; reached or exceeded. will return to the 2010–2011 The recreational ACL for black sea 2011–2012 Accountability Measures for recreational ACL amount, unless AMs bass, implemented through Amendment Recreational Black Sea Bass are implemented due to an overage. 17B, is 409,000 lb (185,519 kg), gutted AGENCY: National Marine Fisheries weight. In accordance with regulations Classification Service (NMFS), National Oceanic and at 50 CFR 622.49 (b)(5)(ii)(A), when the The Administrator, Southeast Region, Atmospheric Administration (NOAA), recreational ACL is reached or projected NMFS, (RA) has determined this Commerce. to be reached, and black sea bass are temporary rule is necessary for the ACTION: Temporary rule. classified as overfished, the Assistant conservation and management of the Administrator for Fisheries, NOAA (AA) South Atlantic black sea bass SUMMARY: NMFS implements will file a notification with the Office of component of the South Atlantic accountability measures (AMs) for the Federal Register to close the snapper-grouper fishery and is recreational black sea bass in the South recreational sector for black sea bass for consistent with the Magnuson-Stevens Atlantic for the 2011–2012 fishing year the remainder of the fishing year. In Act and other applicable laws. through this temporary final rule. This accordance with the regulations at 50 The temporary rule has been rule reduces the 2011–2012 recreational CFR 622.49 (b)(5)(ii)(B), if black sea bass determined to be not significant for annual catch limit (ACL) for black sea recreational landings exceed the ACL, purposes of Executive Order 12866. bass based on the 2010–2011 without regard to overfished status, the These measures are exempt from the recreational ACL overage. This action is AA will file a notification with the procedures of the Regulatory Flexibility necessary to reduce overfishing of the Office of the Federal Register, at or near Act because the temporary rule is issued South Atlantic black sea bass resource. the beginning of the following fishing without opportunity for prior notice and DATES: This rule is effective October 4, year, to reduce the ACL for that fishing comment. 2011, through May 31, 2012. year by the amount of the previous Pursuant to 5 U.S.C. 553(b)(B), there ADDRESSES: Copies of the final rule for year’s overage. Recreational landings is good cause to waive the requirements Amendment 17B, the Environmental will be evaluated relative to the ACL, in to provide prior notice and opportunity

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for public comment on this temporary year. Additionally, there is a need to time as possible to adjust business plans rule. Such procedures are unnecessary immediately notify the public of the to account for the revised ACL. because the AMs established by reduced recreational ACL since black For the aforementioned reasons, the Amendment 17B and located at 50 CFR sea bass are overfished and undergoing AA also finds good cause to waive the 622.49(b)(5)(ii) authorize the AA to file overfishing and this waiver will help to 30-day delay in the effectiveness of this a notification with the Office of the provide timely notice to further protect action under 5 U.S.C. 553(d)(3). Federal Register to reduce the the South Atlantic black sea bass recreational ACL the following fishing resource. Also, providing prior notice Authority: 16 U.S.C. 1801 et seq. year if an overage occurs in the prior and opportunity for public comment on Dated: September 29, 2011. fishing year. The final rule for this action would be contrary to the Steven Thur, Amendment 17B implementing this AM public interest because many of those was subject to notice and comment, and affected by the recreational season ACL, Acting Director, Office of Sustainable all that remains is to notify the public particularly charter vessel and headboat Fisheries, National Marine Fisheries Service. of the reduced recreational ACL for operations, book trips for clients in [FR Doc. 2011–25562 Filed 10–3–11; 8:45 am] black sea bass for the 2011–2012 fishing advance and, therefore need as much BILLING CODE 3510–22–P

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Proposed Rules Federal Register Vol. 76, No. 192

Tuesday, October 4, 2011

This section of the FEDERAL REGISTER telephone number will be automatically provided in GIPSA’s Grain Inspection contains notices to the public of the proposed captured and included as part of the Handbook, Book II, Chapter 2, ‘‘Barley,’’ issuance of rules and regulations. The comment that is placed in the public which also includes standardized purpose of these notices is to give interested docket and made available on the procedures for additional quality persons an opportunity to participate in the Internet. Also, all personal identifying rule making prior to the adoption of the final attributes not used to determine grade, rules. information (for example, name, such as dockage and moisture content. address, etc.) voluntarily submitted by Together, the grading standards and the commenter may be publicly testing procedures allow buyers and DEPARTMENT OF AGRICULTURE accessible. Do not submit confidential sellers to communicate quality business information or otherwise requirements, compare barley quality Grain Inspection, Packers and sensitive or protected information. using equivalent forms of measurement Stockyards Administration Electronic submissions should avoid and assist in price discovery. the use of special characters, avoid any 7 CFR Part 810 form of encryption, and be free of any GIPSA’s grading and inspection defects or viruses, since these may services are provided through a network Request for Public Comment on the prevent GIPSA from being able to read of Federal, State, and private United States Standards for Barley and understand, and thus consider your laboratories that conduct tests to AGENCY: Grain Inspection, Packers and comment. determine the quality and condition of Stockyards Administration, USDA. All comments will also be available barley. These tests are conducted in for public inspection at the above accordance with applicable standards ACTION: Advance notice of proposed address during regular business hours (7 rulemaking. using approved methodologies and can CFR 1.27(b)). Please call the GIPSA be applied at any point in the marketing SUMMARY: The Department of Management and Budget Services staff chain. Furthermore, the tests yield Agriculture’s (USDA) Grain Inspection, (202) 720–7486 for an appointment to rapid, reliable and consistent results. In Packers and Stockyards Administration view the comments. addition, GIPSA-issued certificates (GIPSA) is reviewing the United States FOR FURTHER INFORMATION CONTACT: describing the quality and condition of (U.S.) Standards for Barley under the Patrick McCluskey at GIPSA, USDA, graded barley are accepted as prima United States Grain Standards Act 10383 N. Ambassador Dr., Kansas City, facie evidence in all Federal courts. U.S. (USGSA). To ensure that standards and MO 64153; Telephone (816) 659–8403; barley standards and the affiliated official grading practices remain Fax Number (816) 872–1258; e-mail grading and testing services offered by relevant, GIPSA invites interested [email protected]. GIPSA verify that a seller’s barley meets parties to comment on whether the SUPPLEMENTARY INFORMATION: specified requirements, and ensure that current barley standards and grading customers receive the quality of barley practices need to be changed. Executive Order 12866 they purchased. DATES: Comments must be received on This rule has been determined to be or before January 3, 2012. exempt for the purposes of Executive In order for U.S. standards and grading procedures for barley to remain ADDRESSES: You may submit your Order 12866, and therefore has not been written or electronic comments on this reviewed by the Office of Management relevant, GIPSA is issuing this advance notice to: and Budget (OMB). notice of proposed rulemaking to invite • interested parties to submit comments, Internet: Go to http://www. Background regulations.gov and follow the on-line ideas, and suggestions on all aspects of instruction for submitting comments. Under the authority of the USGSA (7 the U.S. barley standards and inspection • Mail: Dexter Thomas, GIPSA, U.S.C. 76), GIPSA establishes standards procedures. for barley and other grains regarding USDA, 1400 Independence Avenue, Authority: 7 U.S.C. 71–87k. SW., Room 2530–S, Washington, DC kind, class, quality and condition. The 20250–3642. barley standards, established by USDA J. Dudley Butler, • Fax: (202) 690–2173. on August 24, 1926, were last revised in Administrator, Grain Inspection, Packers and All comments will become a matter of 1997 and appear in the USGSA Stockyards Administration. public record and should be identified regulations at 7 CFR 810.201–810.207. [FR Doc. 2011–25468 Filed 10–3–11; 8:45 am] as ‘‘U.S. barley standards ANPR The standards facilitate barley comments,’’ making reference to the marketing and define U.S. barley quality BILLING CODE 3410–KD–P date and page number of this issue of in the domestic and global marketplace. the Federal Register. All comments The standards define commonly used received become the property of the industry terms; contain basic principles Federal government, are a part of the governing the application of standards, public record, and will generally be such as the type of sample used for a posted to http://www.regulations.gov particular quality analysis; specify without change. If you send an e-mail grades, grade requirements, special comment directly to GIPSA without grades and special grade requirements, going through http://www.regulations. such as garlicky barley and blighted gov, or you submit a comment to GIPSA barley. Official procedures for via fax, the originating e-mail address or determining grading factors are

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DEPARTMENT OF HOMELAND DEPARTMENT OF ENERGY process will be less adversarial and SECURITY better suited to resolving the complex 10 CFR Part 431 technical issues raised by this 8 CFR Parts 216 and 245 RIN 1904–AC62 rulemaking. An important virtue of [CIS No. 2484–09; Docket No. USCIS–2009– negotiated rulemaking is that it allows 0029] Efficiency and Renewables Advisory expert dialog that is much better than Committee, Appliance Standards traditional techniques at getting the RIN 1615–AA90 Subcommittee Negotiated Rulemaking facts and issues right and will result in a proposed rule that will effectively Treatment of Aliens Whose Subcommittee/Working Group for Liquid-Immersed and Medium- and reflect Congressional intent. Employment Creation Immigrant (EB– A regulatory negotiation will enable 5) Petitions Were Approved After Low-Voltage Dry-Type Distribution Transformers DOE to engage in direct and sustained January 1, 1995 and Before August 31, dialog with informed, interested, and 1998; Correction AGENCY: Department of Energy, Office of affected parties when drafting the AGENCY: U.S. Citizenship and Energy Efficiency and Renewable proposed regulation that is then Immigration Services, DHS. Energy. presented to the public for comment. ACTION: Notice of open meeting. Gaining this early understanding of all ACTION: Proposed rule; correction. parties’ perspectives allows DOE to SUMMARY: This document announces an SUMMARY: The Department of Homeland address key issues at an earlier stage of open meeting of two Negotiated Security corrects an inadvertent error the process, thereby allowing more time Rulemaking Working Groups; one contained in the proposed rule titled for an iterative process to resolve issues. concerning Liquid Immersed and Treatment of Aliens Whose A rule drafted by negotiation with Medium-Voltage Dry-Type Distribution Employment Creation Immigrant (EB–5) informed and affected parties is more Transformers and the second addressing Petitions Were Approved After January likely to maximize benefits while Low-Voltage Dry-Type Distribution 1, 1995 and Before August 31, 1998 minimizing unnecessary costs than one Transformers. The Liquid Immersed and published in the Federal Register on conceived or drafted without the Medium-Voltage Dry-Type Group (MV September 28, 2011. The docket number opportunity for sustained dialog among Group) and the Low-Voltage Dry-Type referenced in the proposed rule should interested and expert parties. DOE Group (LV Group) are working groups read ‘‘DHS Docket No. USCIS–2009– anticipates that there will be a need for within the Appliance Standards 0029’’. fewer substantive changes to a proposed Subcommittee of the Efficiency and rule developed under a regulatory DATES: You must submit written Renewables Advisory Committee negotiation process prior to the comments on or before November 28, (ERAC). The purpose of the MV and LV publication of a final rule. 2011. Groups is to discuss and, if possible, To the maximum extent possible, FOR FURTHER INFORMATION CONTACT: reach consensus on a proposed rule for consistent with the legal obligations of Alexandra Haskell, Adjudications regulating the energy efficiency of the Department, DOE will use the Officer, Business, Employment and distribution transformers, as authorized consensus of the advisory committee or Trade Services, Service Center by the Energy Policy Conservation Act subcommittee as the basis for the rule Operations, U.S. Citizenship and (EPCA) of 1975, as amended, 42 U.S.C. the Department proposes for public Immigration Services, Department of 6313(a)(6)(C) and 6317(a). notice and comment. Homeland Security, 20 Massachusetts DATES: Purpose of the Meeting: To continue Avenue, NW., Mailstop 2060, Wednesday, October 12, 2011; 9 a.m.– the process of seeking consensus on a Washington, DC 20259–2060, telephone 5 p.m. proposed rule for setting standards for (202) 272–8410. Thursday, October 13, 2011; 9 a.m.– the energy efficiency of liquid immersed and medium- and low-voltage dry type SUPPLEMENTARY INFORMATION: 5 p.m. Friday, October 14, 2011; 9 a.m.–5 p.m. distribution transformers, as authorized by the Energy Policy Conservation Act Need for Correction ADDRESSES: National Rural Electric On September 28, 2011, the Cooperative Association, 4301 Wilson (EPCA) of 1975, as amended, 42 U.S.C. Department of Homeland Security Blvd., Arlington, VA 22203. 6313(a)(6)(C) and 6317(a). Tentative Agenda: The MV Group published a proposed rule in the FOR FURTHER INFORMATION CONTACT: John will meet at 9 a.m. and will conclude at Federal Register at 76 FR 59927 Cymbalsky, U.S. Department of Energy, 5 p.m. on Wednesday, October 12, 2011, proposing to amend its regulations Office of Building Technologies (EE–2J), and reconvene from 9 a.m. through governing the employment creation 1000 Independence Avenue, SW., 12 p.m. on Thursday, October 13, 2011. (EB–5) immigrant classification. There Washington, DC 20585–0121. Phone The LV Group will meet from 2 p.m. was an inadvertent error in the (202) 287–1692 or e-mail: through 5 p.m. on Thursday, October document. The docket number [email protected]. 13, 2011, and reconvene on Friday, referenced should be changed to read SUPPLEMENTARY INFORMATION: October 14, 2011, from 9 a.m. through ‘‘DHS Docket No. USCIS–2009–0029’’ Background: The Department of 5 p.m. The tentative agenda for the instead of ‘‘DHS Docket No. DHS–2009– Energy (DOE) has decided to use the meetings includes continued discussion 0029’’. negotiated rulemaking process to regarding the analyses of alternate Dated: September 28, 2011. develop proposed energy efficiency standard levels and negotiation efforts Sunday Aigbe, standards for distribution transformers. to address the perceived issues. Chief Regulatory Products Division, Office of The primary reasons for using the Public Participation: Members of the the Executive Secretariat, U.S. Citizenship negotiated rulemaking process for public are welcome to observe the and Immigration Services, Department of developing a proposed Federal standard business of the meetings and to make Homeland Security. is that stakeholders strongly support a comments related to the issues being [FR Doc. 2011–25463 Filed 10–3–11; 8:45 am] consensual rulemaking effort and DOE discussed at appropriate points, when BILLING CODE 9111–97–P believes such a regulatory negotiation called on by the moderator. The

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facilitator will make every effort to hear Department proposes to revise the child on the Internet. It is the submitter’s the views of all interested parties, labor regulations issued pursuant to the responsibility to safeguard his or her within limits, required for the orderly Fair Labor Standards Act (FLSA) which information. Because we continue to conduct of business. To attend the set forth the criteria for the permissible experience delays in receiving mail in meeting and/or to make oral statements employment of minors under 16 years of the Washington, DC area, interested regarding any of the items on the age in agricultural and under 18 years parties are strongly encouraged to agenda, please send an e-mail to: in nonagricultural occupations. The transmit their requests to speak at the [email protected]. Please include ‘‘MV NPRM proposes to implement specific public hearing electronically via and LV Work Group 101211’’ in the recommendations made by the National [email protected] or to submit them subject line of the message. Please be Institute for Occupational Safety and by mail early. For additional sure to specify which working group Health, increase parity between the information on submitting comments on discussion you will be attending. In the agricultural and nonagricultural child the proposed rule and the rulemaking e-mail, please provide your name, labor provisions, and also address other process, see the ‘‘Public Participation’’ organization, citizenship, and contact areas that can be improved, which were heading of the SUPPLEMENTARY information. Space is limited. identified by the Department’s own INFORMATION section of this document. Participation in the meeting is not a enforcement actions. The NPRM was Docket: For access to the docket to prerequisite for submission of written published in the Federal Register on read the proposed rule, background comments. ERAC invites written September 2, 2011, and the comment documents or comments received, go to comments from all interested parties. If period runs through November 1, 2011. the Federal eRulemaking Portal at you would like to file a written DATES: The public hearing will be held http://www.regulations.gov. statement with the committee, you may on October 14, 2011 from 10 a.m.– FOR FURTHER INFORMATION CONTACT: do so either by submitting a hard or 12 noon, EST in Tampa, Florida. All Information regarding this notice is electronic copy before or after the requests to speak at the hearing must be available from the following sources: meeting. Electronic copy of written received by 5 p.m. EST, October 11, Press inquiries. Contact Michael statements should be e-mailed to: 2011. Kravitz, Director of Communications, [email protected]. This notice is being ADDRESSES: Persons interested in Room S–3502, U.S. Department of published less than 15 days prior to the presenting testimony at this public Labor, 200 Constitution Avenue, NW., meeting date due to programmatic hearing must submit notice of their Washington, DC 20210; telephone: 202– issues and members’ availability that intent to participate in the hearing and 693–0051. had to be resolved prior to the meeting their name, title, organization, and e- General and technical information. date. mail address using one of the following Contact Arthur M. Kerschner, Jr., Chief, Minutes: The minutes of the meeting methods: Branch of Child Labor, Room S–3510, will be available for public review at Electronic. You may submit requests U.S. Department of Labor, 200 http://www.erac.energy.gov. to speak at the public hearing and Constitution Avenue, NW., Washington, Issued in Washington, DC, on September requests for special accommodations to DC 20210; telephone: 202–693–0072. 28, 2011. attend the hearing at: Copies of this Federal Register notice. LaTanya R. Butler, [email protected]. This Federal Register notice, as well as Acting Deputy Committee Management Regular Mail, express delivery, hand news releases and other relevant Officer. (courier) delivery, and messenger information, are available on the WHD [FR Doc. 2011–25499 Filed 10–3–11; 8:45 am] service. You may submit requests to web site at http://www.dol.gov/whd/. Questions of interpretation and/or BILLING CODE 6450–01–P speak at the public hearing and requests for special accommodations to attend enforcement of regulations issued by the hearing to: Wage and Hour Division, this agency or referenced in this notice may be directed to the nearest WHD DEPARTMENT OF LABOR attention: Division of Regulations, Legislation, and Interpretation, U.S. District Office. Locate the nearest office Wage and Hour Division Department of Labor, Room S–3502, 200 by calling the WHD toll-free help line at Constitution Avenue, NW., Washington, (866) 4US–WAGE ((866) 487–9243) 29 CFR Parts 570 and 579 DC 20210. between 8 a.m. and 5 p.m. in your local Instructions: Please submit one copy time zone, or log onto the WHD Web RIN 1235–AA06 of your request by only one method. All site for a nationwide listing of WHD requests received must include the District and Area Offices at: http:// Public Hearing on Child Labor www.dol.gov/whd/america2.htm. Regulations, Orders and Statements of agency name (Wage and Hour Division) Interpretation; Child Labor Violations— and Regulatory Information Number SUPPLEMENTARY INFORMATION: The Civil Money Penalties identified above for the subject NPRM was published in the Federal rulemaking (1235–AA06). All comments Register on September 2, 2011, and the AGENCY: Wage and Hour Division, and requests to speak will be posted comment period runs through Labor. without change to http:// November 1, 2011. (76 FR 54836). ACTION: Notice of public hearing. www.regulations.gov, including any Comments on the rule can be personal information provided. electronically submitted through that SUMMARY: The Wage and Hour Division Consequently, prior to including any time at http://www.regulations.gov. (WHD) will hold a public hearing on its individual’s personal information such Public Participation: The WHD is Notice of Proposed Rulemaking as Social Security Number, home proposing to revise the child labor (NPRM), Child Labor Regulations, address, telephone number, e-mail regulations issued pursuant to the Orders and Statements of Interpretation; addresses and medical data in the FLSA, which set forth the criteria for the Child Labor Violations—Civil Money submission, the Department urges permissible employment of minors Penalties to give interested persons an commenters carefully to consider that under 18 years of age in agricultural and opportunity to present comments on the their submissions are a matter of public nonagricultural occupations. (29 CFR proposed rule. In the NPRM, the record and will be publicly accessible parts 570 and 579). The proposed rule,

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background documents, and comments agricultural and nonagricultural perform work otherwise prohibited to received on the proposal are available at employment—that are so important to that age group. The terms and www.regulations.gov. To comment their development and transition to conditions for employing such electronically on federal rulemakings, adulthood. The federal child labor apprentices and student-learners are go to the Federal eRulemaking Portal at provisions were enacted to ensure that detailed in § 570.50(b) and (c). In the http://www.regulations.gov, which will when young people work, the work is recently published NPRM, the allow you to find, review, and submit safe, age appropriate, and does not Department proposes to create two new comments on federal documents that are jeopardize their schooling. The NPRM, nonagricultural HOs, one concerning open for comment and published in the published September 2, 2011 in the the employment of youth in certain Federal Register. The comment period Federal Register, continues the facilities within farm-product raw for this rulemaking runs through Department’s tradition of encouraging materials wholesale trade industries, as November 1, 2011. compliance with the child labor recommended by National Institute for The public hearing will be held on provisions and fostering permissible Occupational Safety and Health October 14, 2011, beginning at 10 a.m. and appropriate job opportunities for (NIOSH) in its 2002 Report, and another at the Tampa Port Authority, 1101 working youth that are healthy, safe, addressing the use of electronic devices, Channelside Drive, #400, Tampa, FL and not detrimental to their education. including communication devices, 33602. Persons interested in speaking at (76 FR 54836). As mentioned, the while operating or assisting to operate this public hearing must submit by Department’s proposals arise from the certain power-driven equipment, 5 p.m., EST, October 11, 2011, the enforcement experiences of the Wage including motor vehicles. following information: (1) A written and Hour Division, specific B. Child Labor Provisions for request to be heard; and (2) An outline recommendations made by the National Employment in Agriculture of the topics to be discussed, indicating Institute for Occupational Safety and the time allocated to each topic. To Health, and a commitment to provide The FLSA, since its enactment in facilitate the receipt and processing of young hired farm workers with the same 1938, has applied child labor standards requests, WHD encourages interested level of workplace protections afforded to the employment of youth in persons to submit their requests and their peers who are employed in agriculture that differ from those outlines electronically to nonagricultural industries. applied to youth employed in [email protected]. It should be noted nonagricultural occupations. FLSA that, while reasonable efforts will be A. Child Labor Provisions for section 3(f) defines agriculture as made to accommodate requests to speak Employment in Nonagriculture including ‘‘farming in all its branches on the specified issues, it may be The child labor provisions of the and among other things includes the necessary to limit the number of those FLSA, 29 U.S.C. 201 et seq., establish a cultivation and tillage of the soil, speaking and/or the amount of time minimum age of 16 years for dairying, the production, cultivation, allocated to each speaker in order to employment in nonagricultural growing, and harvesting of any adhere to the hearing format. Any occupations, but the Secretary of Labor agricultural or horticultural persons not afforded an opportunity to is authorized to provide by regulation commodities (including commodities testify will have an opportunity to for 14- and 15-year-olds to work in defined as agricultural commodities in submit a written statement on the suitable occupations other than section 1141j(g) of [U.S.C.] Title 12), the specified issues for the record. The manufacturing or mining, and during raising of livestock, bees, fur-bearing hearing will be open to the general periods and under conditions that will animals, or poultry, and any practices public. not interfere with their schooling or (including any forestry or lumbering Persons submitting requests and health and well-being. The FLSA operations) performed by a farmer or on outlines on paper should send or deliver provisions permit 16- and 17-year-olds a farm as an incident to or in their requests and outlines to the Wage to work in the nonagricultural sector conjunction with such farming and Hour Division, attention: Division without hours or time limitations, operations, including preparation for of Regulations, Legislation, and except in certain occupations found and market, delivery to storage or to market Interpretation, U.S. Department of declared by the Secretary to be or to carriers for transportation to Labor, Room S–3502, 200 Constitution particularly hazardous, or detrimental to market.’’ The Department’s regulations Avenue, NW., Washington, DC 20210. the health or well-being of such at 29 CFR part 780 explain the meaning All requests and outlines submitted to workers. of these terms, including a description the Department will be available to the The regulations concerning of what constitutes primary agriculture public online at http:// nonagricultural hazardous occupations and secondary agriculture under section www.regulations.gov. are contained in subpart E of 29 CFR 3(f). However, the FLSA, when enacted, The Department will prepare an part 570 (29 CFR 570.50–.68). These also included a broad exemption from agenda indicating the order of the Hazardous Occupations Orders (HOs) the child labor provisions for youth presentation of oral comments and apply on either an industry basis, under 16 years of age employed in testimony. In the absence of special specifying the occupations in a agriculture. circumstances, presenters will be particular industry that are prohibited, In 1966, Congress amended the FLSA allotted an equal amount of time for or an occupational basis, irrespective of and, among other things, authorized the presenting oral comments and the industry in which the work is Secretary to create Agricultural testimony. Information about the agenda performed. The seventeen Hazardous Occupations Orders (Ag will be posted on http:// nonagricultural HOs were adopted H.O.s) (Pub. L. 89–601, § 203). The www.regulations.gov on or after October individually during the period of 1939 newly enacted FLSA section 13(c)(2) 12, 2011. through 1963. Seven of these HOs, stated that ‘‘[t]he provisions of section specifically HOs 5, 8, 10, 12, 14, 16, and 12 relating to child labor shall apply to Background 17, contain limited exemptions that an employee below the age of sixteen The Department is committed to permit the employment of 16- and 17- employed in agriculture in any helping youth enjoy positive and year-old apprentices and student- occupations that the Secretary of Labor challenging work experiences—both in learners under particular conditions to finds and declares to be particularly

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hazardous for the employment of Deputy Administrator for the Wage and A. http://www.regulations.gov. Follow children below the age of sixteen, Hour Division, U. S. Department of the on-line instructions for submitting except where such employee is Labor, pursuant to sections 3 and 13 of comments. employed by his parent or by a person the Fair Labor Standards Act (29 U.S.C. B. E-mail: standing in place of his parent on a farm 203, 213). [email protected]. C. Mail: EPA–R03–OAR–2011–0556, owned or operated by such parent or Signed at Washington, DC, this 28th day of person.’’ It is important to note that the September 2011. Cristina Fernandez, Associate Director, Office of Air Program Planning, amendment created a minimum age of Nancy J. Leppink, 16 for the permissible performance of Mailcode 3AP30, U.S. Environmental Deputy Administrator, Wage and Hour Protection Agency, Region III, 1650 hazardous work in agricultural Division. occupations, although 18 remained the Arch Street, Philadelphia, Pennsylvania minimum age for the performance of [FR Doc. 2011–25472 Filed 10–3–11; 8:45 am] 19103. hazardous work in nonagricultural BILLING CODE 4510–27–P D. Hand Delivery: At the previously- employment. This statutory difference listed EPA Region III address. Such remains to this day. The Department deliveries are only accepted during the published a final rule implementing ENVIRONMENTAL PROTECTION Docket’s normal hours of operation, and FLSA § 213(c) in the Federal Register AGENCY special arrangements should be made on January 7, 1970 (35 FR 221), which for deliveries of boxed information. became effective on February 6, 1970. 40 CFR Part 52 Instructions: Direct your comments to Docket ID No. EPA–R03–OAR–2011– The Ag H.O.s established by that final [EPA–R03–OAR–2011–0556; FRL–9473–4] rule have never been revised and are 0556. EPA’s policy is that all comments received will be included in the public identical to the current Ag H.O.s now Approval and Promulgation of Air docket without change, and may be contained in 29 CFR 570.71. Quality Implementation Plans; West The Department proposes to not only made available online at http:// Virginia; Ohio; Determination of Clean www.regulations.gov, including any accept all of the agricultural hazardous Data for the 2006 24-Hour Fine occupations order recommendations personal information provided, unless Particulate Standard for the the comment includes information made by the National Institute for Steubenville-Weirton Area Occupational Safety and Health but to claimed to be Confidential Business expand several of them. The NPRM AGENCY: Environmental Protection Information (CBI) or other information proposes to eliminate two exemptions Agency (EPA). whose disclosure is restricted by statute. Do not submit information that you that currently allow 14- and 15-year-old ACTION: Proposed rule. hired farm workers to operate tractors consider to be CBI or otherwise and certain other farm equipment after SUMMARY: EPA is proposing to protected through http:// receiving limited training and the determine that the two-state www.regulations.gov or e-mail. The successful completion of a practical Steubenville-Weirton, nonattainment http://www.regulations.gov Web site is examination. The proposal would also area for the 2006 24-hour fine an ‘‘anonymous access’’ system, which strengthen a student-learner exemption particulate matter (PM2.5) National means EPA will not know your identity for 14- and 15-year-old hired farm Ambient Air Quality Standard (NAAQS) or contact information unless you workers by modeling it after the same has clean data for the 2006 24-hour provide it in the body of your comment. If you send an e-mail comment directly exemption that is available to 16- and PM2.5 NAAQS. This proposed 17-year-old youths employed in determination is based upon quality to EPA without going through http:// nonagricultural work places. assured, quality controlled, and certified www.regulations.gov, your e-mail The Department’s proposals apply ambient air monitoring data showing address will be automatically captured only to young hired farm workers and that this area has monitored attainment and included as part of the comment that is placed in the public docket and in no way change the statutory parental of the 2006 PM2.5 NAAQS based on the exemptions applicable to children of 2008–2010 data available in EPA’s Air made available on the Internet. If you any age who are employed on a farm Quality System (AQS) database. If this submit an electronic comment, EPA owned or operated by their parent. proposed determination is made final, recommends that you include your the requirements for the Steubenville- name and other contact information in C. The Assessment of Child Labor Civil Weirton area to submit an attainment the body of your comment and with any Money Penalties (29 CFR Part 579) demonstration, associated reasonably disk or CD–ROM you submit. If EPA The Department proposes to revise 29 available control measures (RACM), a cannot read your comment due to CFR part 579 to provide additional reasonable further progress plan (RFP), technical difficulties and cannot contact transparency to its child labor civil contingency measures, and other you for clarification, EPA may not be money penalty assessment process by planning State Implementation Plans able to consider your comment. incorporating the primary provisions of (SIPs) related to attainment of the Electronic files should avoid the use of Wage and Hour Division Field standard shall be suspended for so long special characters, any form of Assistance Bulletin 2010–1 (available at as the area continues to meet the 2006 encryption, and be free of any defects or viruses. http://www.dol.gov/whd/FieldBulletins/ 24-hour PM2.5 NAAQS. This action is fab2010_1.pdf). The Department being taken under the Clean Air Act Docket: All documents in the believes this proposal will increase the (CAA). electronic docket are listed in the http:// public’s understanding of the child www.regulations.gov index. Although labor civil money penalty assessment DATES: Written comments must be listed in the index, some information is process while preserving national received on or before November 3, 2011. not publicly available, i.e., CBI or other consistency in its administration. ADDRESSES: Submit your comments information whose disclosure is regarding the two-state Steubenville- restricted by statute. Certain other Authority and Signature Weirton area, identified by Docket ID material, such as copyrighted material, This document was prepared under Number EPA–R03–OAR–2011–0556 by is not placed on the Internet and will be the direction of Nancy J. Leppink, one of the following methods: publicly available only in hard copy

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form. Publicly available docket assured, quality controlled, and certified nonattainment for the 2006 PM2.5 materials are available either ambient air monitoring data showing NAAQS until such time as EPA electronically in http:// that this area has monitored attainment determines that this area meets the CAA www.regulations.gov or in hard copy of the 2006 PM2.5 NAAQS based on the requirements for redesignation to during normal business hours at the Air 2008–2010 data in EPA’s AQS database. attainment. Protection Division, U.S. Environmental II. What is the effect of this action? III. What is the background for this Protection Agency, Region III, 1650 action? Arch Street, Philadelphia, Pennsylvania If this determination is made final, under the provisions of EPA’s PM2.5 19103. The 2006 PM2.5 NAAQS set forth at 40 FOR FURTHER INFORMATION CONTACT: In implementation rule (see 40 CFR section CFR 50.13 became effective on Region III, Asrah Khadr, Office of Air 51.1004(c)), the requirements for the December 18, 2006 (71 FR 61144) and Program Planning, Environmental Steubenville-Weirton nonattainment promulgated a 24-hour standard of 35 Protection Agency, Region III, 1650 area to submit an attainment micrograms per cubic meter (mg/m3) Arch Street, Philadelphia, PA 19103– demonstration, associated RACM, a RFP based on a 3-year average of the 98th plan, contingency measures, and any 2023. The telephone number is (215) percentile of 24-hour concentration. On other planning SIPs related to 814–2071. Ms. Khadr can also be December 14, 2009 (74 FR 58688), EPA attainment of the 2006 PM NAAQS reached via electronic mail at 2.5 made designation determinations, as would be suspended for so long as the [email protected]. In Region V, required by CAA section 107(d)(1), for area continues to meet the 2006 24-hour Carolyn Persoon, Air Planning and the 2006 24-hour PM NAAQS. The PM NAAQS. Furthermore, as 2.5 Maintenance Section, Air Programs 2.5 Steubenville-Weirton area is designated described below, a final clean data Branch (AR–18J), Environmental as nonattainment for the 2006 24-hour determination would not be equivalent Protection Agency, Region V, 77 West PM2.5 NAAQS. Jackson Boulevard, Chicago, Illinois to the redesignation of this area to IV. What is EPA’s analysis of the 60604–3507. Ms. Persoon’s telephone attainment of the 2006 24-hour PM2.5 relevant air quality data? number is (312) 353–8290. Ms. Persoon NAAQS. If EPA subsequently determines that can also be reached via electronic mail this area is in violation of the 2006 24- EPA has reviewed the ambient air at [email protected]. monitoring data, consistent with the hour PM2.5 NAAQS, the basis for the SUPPLEMENTARY INFORMATION: suspension of the specific requirements, requirements contained in 40 CFR part Throughout this document whenever set forth at 40 CFR section 51.1004(c), 50 and recorded in EPA’s AQS database ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean would no longer exist and this area for the Steubenville-Weirton PM2.5 EPA. would thereafter have to address the nonattainment area from 2008 through The following outline is provided to pertinent requirements. the present time. On the basis of that aid in locating information in this This clean data determination that review, EPA has concluded that this preamble. EPA proposes with this Federal Register area meets the 2006 24-hour PM2.5 I. What action is EPA taking? notice, that the air quality data shows NAAQS based on the 2008–2010 data II. What is the effect of this action? attainment of the 2006 24-hour PM2.5 available in EPA’s AQS database. III. What is the background for this action? NAAQS, is not equivalent to the Under EPA regulations in 40 CFR part IV. What is EPA’s analysis of the relevant air redesignation of this area to attainment. 50, section 50.13 and in accordance quality data? V. What’s EPA’s proposed action? This proposed action, if finalized, will with Appendix N, the 24-hour primary VI. What are the statutory and Executive not constitute a redesignation to and secondary PM2.5 standards are met Order reviews? attainment under section 107(d)(3) of when the 98th percentile 24-hour the CAA, because we would not yet concentration is less than or equal to 35 I. What action is EPA taking? have an approved maintenance plan for mg/m3. Table 1 shows the design values EPA is proposing to determine that this area as required under section 175A for the 2006 24-hour PM2.5 NAAQS for the Steubenville-Weirton PM2.5 of the CAA, nor a determination that the years 2008–2010. EPA’s review of nonattainment area has clean data for this area has met the other requirements the data indicates that the Steubenville- the 2006 24-hour PM2.5 NAAQS. This for redesignation. The designation status Weirton PM2.5 nonattainment area meets determination is based upon quality of this area would remain the 2006 PM2.5 NAAQS.

TABLE 1—2008–2010 DAILY AVERAGE CONCENTRATIONS IN THE STEUBENVILLE-WEIRTON AREA 1

State County Site No. Design value (μg/m3)

Ohio ...... Jefferson ...... 390810017 30.0 Ohio ...... Jefferson ...... 390811001 28.0 West Virginia ...... Brooke ...... 540090005 31.0 West Virginia ...... Brooke ...... 540090011 31.0 West Virginia ...... Hancock ...... 540291004 31.0

1 The publicly available PM2.5 AQS data and information is available as part of EPA’s AirTrends Site at: http://www.epa.gov/airtrends/ values.html.

V. What’s EPA’s proposed action? section 51.1004(c), if EPA finalizes this and any other planning SIPs related to determination, it will suspend the the attainment of the 2006 PM2.5 EPA is proposing to determine that requirements for this area to submit an NAAQS, so long as this area continues the Steubenville-Weirton nonattainment attainment demonstration, associated to meet the standard. EPA is soliciting area has clean data for the 2006 24-hour RACM, a RFP, contingency measures, public comments on the issues PM2.5 NAAQS. As provided in 40 CFR

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discussed in this document. These November 9, 2000), because the SIP is • Mail: Environmental Protection comments will be considered before not approved to apply in Indian Country Agency, EPA Docket Center (EPA/DC), taking final action. located in the state, and EPA notes that Mail Code 28221T, Attention Docket ID it will not impose substantial direct No. EPA–HQ–OAR–2011–0512, 1200 VI. What are the statutory and costs on tribal governments or preempt Pennsylvania Avenue, NW., Executive Order reviews? tribal law. Washington, DC 20460. Under the CAA, the Administrator is • Hand/Courier Delivery: EPA Docket required to approve a SIP submission List of Subjects in 40 CFR Part 52 Center, Public Reading Room, EPA West that complies with the provisions of the Environmental protection, Air Building, Room 3334, Attention Docket CAA and applicable Federal regulations. pollution control, Particulate matter, ID No. EPA–HQ–OAR–2011–0512, 1301 42 U.S.C. 7410(k); 40 CFR 52.02(a). Reporting and recordkeeping Constitution Avenue, NW., Washington, Thus, in reviewing SIP submissions, requirements. DC 20004. Such deliveries are only EPA’s role is to approve state choices, Authority: 42 U.S.C. 7401 et seq. accepted during the docket’s normal provided that they meet the criteria of hours of operation, and special the CAA. Accordingly, this action Dated: August 8, 2011. arrangements should be made for merely proposes to approve state law as C. Early, deliveries of boxed information. meeting Federal requirements and does Acting Regional Administrator, Region III. Instructions: Direct your comments to not impose additional requirements Dated: September 6, 2011. Docket ID No. EPA–HQ–OAR–2011– beyond those imposed by state law. For Susan Hedman, 0512, Mandatory Reporting of that reason, this proposed action: Regional Administrator, Region V. Greenhouse Gases: Petroleum and • Natural Gas Systems. EPA’s policy is Is not a ‘‘significant regulatory [FR Doc. 2011–25111 Filed 10–3–11; 8:45 am] action’’ subject to review by the Office that all comments received will be BILLING CODE 6560–50–P of Management and Budget under included in the public docket without Executive Order 12866 (58 FR 51735, change and may be made available October 4, 1993); ENVIRONMENTAL PROTECTION online at http://www.regulations.gov, • Does not impose an information AGENCY including any personal information collection burden under the provisions provided, unless the comment includes of the Paperwork Reduction Act (44 40 CFR Part 98 information claimed to be confidential U.S.C. 3501 et seq.); business information (CBI) or other • Is certified as not having a [EPA–HQ–OAR–2011–0512; FRL–9474–8] information whose disclosure is significant economic impact on a RIN 2060–AR09 restricted by statute. Do not submit substantial number of small entities information that you consider to be CBI under the Regulatory Flexibility Act Extension of Public Comment Period: or otherwise protected through http:// (5 U.S.C. 601 et seq.); Mandatory Reporting of Greenhouse www.regulations.gov or e-mail. The • Does not contain any unfunded Gases: Technical Revisions to the http://www.regulations.gov Web site is mandate or significantly or uniquely Electronics Manufacturing and the an ‘‘anonymous access’’ system, which affect small governments, as described Petroleum and Natural Gas Systems means EPA will not know your identity in the Unfunded Mandates Reform Act Categories of the Greenhouse Gas or contact information unless you of 1995 (Pub. L. 104–4); Reporting Rule provide it in the body of your comment. • Does not have Federalism If you send an e-mail comment directly AGENCY: implications as specified in Executive Environmental Protection to EPA without going through http:// Order 13132 (64 FR 43255, August 10, Agency (EPA). www.regulations.gov your e-mail 1999); ACTION: Extension of public comment address will be automatically captured • Is not an economically significant period. and included as part of the comment regulatory action based on health or that is placed in the public docket and SUMMARY: On September 9, 2011, EPA safety risks subject to Executive Order made available on the Internet. If you published a proposed action, Mandatory 13045 (62 FR 19885, April 23, 1997); submit an electronic comment, EPA Reporting of Greenhouse Gases: • Is not a significant regulatory action recommends that you include your Technical Revisions to the Electronics subject to Executive Order 13211 (66 FR name and other contact information in Manufacturing and the Petroleum and 28355, May 22, 2001); the body of your comment and with any • Is not subject to requirements of Natural Gas Systems Categories of the disk or CD–ROM you submit. If EPA Section 12(d) of the National Greenhouse Gas Reporting Rule. In this cannot read your comment due to Technology Transfer and Advancement action, EPA is extending the comment technical difficulties and cannot contact Act of 1995 (15 U.S.C. 272 note) because period for that action until October 24, you for clarification, EPA may not be application of those requirements would 2011. able to consider your comment. be inconsistent with the CAA; and DATES: Comments must be received on Electronic files should avoid the use of • Does not provide EPA with the or before October 24, 2011. special characters, any form of discretionary authority to address, as ADDRESSES: You may submit your encryption, and be free of any defects or appropriate, disproportionate human comments, identified by Docket ID No. viruses. health or environmental effects, using EPA–HQ–OAR–2011–0512 by any of the Docket: All documents in the docket practicable and legally permissible following methods: are listed in the http:// methods, under Executive Order 12898 • Federal eRulemaking Portal: http:// www.regulations.gov index. Although (59 FR 7629, February 16, 1994). www.regulations.gov. Follow the online listed in the index, some information is In addition, this proposed rulemaking instructions for submitting comments. not publicly available, e.g., CBI or other that the Steubenville-Weirton PM2.5 • E-mail: GHG_Reporting_Rule_Oil information whose disclosure is nonattainment area has clean data for [email protected]. Include restricted by statute. Certain other the 2006 24-hour PM2.5 standard does Docket ID No. EPA–HQ–OAR–2011– material, such as copyrighted material, not have tribal implications as specified 0512 in the subject line of the message. will be publicly available for viewing at by Executive Order 13175 (65 FR 67249, • Fax: (202) 566–9744. the EPA Docket Center. Publicly

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available docket materials are available submitting public comment on that rule Status: The meeting will be open to either electronically in http:// is October 11, 2011. EPA is extending the public. www.regulations.gov or in hard copy at that deadline to October 24, 2011. This Purpose: The purpose of the the EPA Docket Center, EPA/DC, EPA extension will provide the general Negotiated Rulemaking Committee on West Building, Room 3334, 1301 public additional time for public Designation of Medically Underserved Constitution Ave., NW., Washington, participation. Populations and Health Professional DC. This Docket Facility is open from Shortage Areas is to establish criteria List of Subjects in 40 CFR Part 98 8:30 a.m. to 4:30 p.m., Monday through and a comprehensive methodology for Friday, excluding legal holidays. The Environmental protection, Designation of Medically Underserved telephone number for the Public Administrative practice and procedure, Populations and Primary Care Health Reading Room is (202) 566–1744, and Greenhouse gases, Incorporation by Professional Shortage Areas, using a the telephone number for the Air Docket reference, Suppliers, Reporting and Negotiated Rulemaking (NR) process. It is (202) 566–1742. recordkeeping requirements. is hoped that use of the NR process will FOR FURTHER INFORMATION CONTACT: Dated: September 27, 2011. yield a consensus among technical experts and stakeholders on a new rule Carole Cook, Climate Change Division, Elizabeth Craig, Office of Atmospheric Programs (MC– for designation of medically Acting Director, Office of Atmospheric underserved populations and primary 6207J), Environmental Protection Programs. Agency, 1200 Pennsylvania Ave., NW., care health professions shortage areas, [FR Doc. 2011–25500 Filed 10–3–11; 8:45 am] which would be published as an Interim Washington, DC 20460; telephone BILLING CODE 6560–50–P number: (202) 343–9263; fax number: Final Rule in accordance with Section (202) 343–2342; e-mail address: 5602 of the Affordable Care Act, Public [email protected]. For Law 111–148. Agenda: The meeting will be held on technical questions, please see the DEPARTMENT OF HEALTH AND Wednesday, October 12, and Thursday, Greenhouse Gas Reporting Program Web HUMAN SERVICES October 13, 2011. This will be the last site http://www.epa.gov/climatechange/ meeting of the Committee, and the main emissions/ghgrulemaking.html. To 42 CFR Part 5 purpose will be to review the draft submit a question, select Rule Help Negotiated Rulemaking Committee on report reflecting their decisions and Center, followed by Contact Us. To Designation of Medically Underserved deliberations prior to this meeting. The obtain information about the public Populations and Health Professional meeting will include a review of the hearing or to register to speak at the Shortage Areas; Notice of Meeting major recommendations (regarding new public hearing, please go to http:// methodologies) for the designation of www.epa.gov/climatechange/emissions/ AGENCY: Health Resources and Services Health Professional Shortage Areas and ghgrulemaking.html. Alternatively, you Administration, HHS. Medically Underserved Areas, the may contact Carole Cook at 202–343– ACTION: Negotiated Rulemaking justification and support for these 9263. Committee meeting. decisions, and the approval of the draft SUPPLEMENTARY INFORMATION: report (to be prepared in final Worldwide Web (WWW). In addition SUMMARY: In accordance with section discussion of various components) of a to being available in the docket, an 10(a)(2) of the Federal Advisory possible methodology for identifying electronic copy of today’s notice will Committee Act (Pub. L. 92–463), notice areas of shortage and underservice, also be available through the WWW. is hereby given of the following meeting based on the recommendations of the Following the Administrator’s signature, of the Negotiated Rulemaking Committee in the previous meeting. The a copy of this action will be posted on Committee on Designation of Medically final agenda will be available on the EPA’s greenhouse gas reporting rule Underserved Populations and Health Committee’s Web site: http:// Web site at http://www.epa.gov/climate Professional Shortage Areas. www.hrsa.gov/advisorycommittees/ change/emissions/ghgrulemaking.html. DATES: Meetings will be held on October shortage/. Agenda items are subject to Additional information on submitting 12, 2011, 9:30 a.m. to 6 p.m. and change as priorities dictate. comments. To expedite review of your October 13, 2011, 9 a.m. to 6 p.m. All Members of the public will have the comments by Agency staff, you are meeting times are Eastern Daylight Time opportunity to provide comments encouraged to send a separate copy of (E.D.T.). during the meeting on the afternoon of your comments, in addition to the copy ADDRESSES: Meetings will be held at the the last day. Requests from the public, you submit to the official docket, to Sheraton Suites Old Town Alexandria, to make oral comments or to provide Carole Cook, U.S. EPA, Office of 801 North Saint Asaph Street, written comments to the Committee, Atmospheric Programs, Climate Change Alexandria, Virginia 22314; 703–836– should be sent to LaCrystal McNair (at Division, Mail Code 6207–J, 4700. the contact address above) at least 10 Washington, DC 20460, telephone (202) days prior to the first day of the 343–9263, e-mail address: FOR FURTHER INFORMATION CONTACT: For meeting, Wednesday, October 12, 2011. [email protected]. more information, please contact La The meetings will be open to the public Background on Today’s Action. In Crystal McNair, National Center for as indicated above, with attendance this action, EPA is providing notice that Health Workforce Analysis, Bureau of limited to the space available. it is extending the public comment Health Professions, Health Resources Individuals who plan to attend and period on the action published on and Services Administration, Room 9– need special assistance, such as sign September 9, 2011 (76 FR 56010), 49, Parklawn Building, 5600 Fishers language interpretation or other Mandatory Reporting of Greenhouse Lane, Rockville, Maryland 20857, reasonable accommodations, should Gases: Technical Revisions to the Telephone (301) 443–3578, E-mail: notify the contact person at least 10 Electronics Manufacturing and the [email protected], or visit http:// days prior to the meeting. Petroleum and Natural Gas Systems www.hrsa.gov/advisorycommittees/ The Committee is working under tight Categories of the Greenhouse Gas shortage/. timeframes in order to meet the Reporting Rule. The current deadline for SUPPLEMENTARY INFORMATION: reporting requirements in the Affordable

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Care Act. Due to the complexity of the D–3’’ should read ‘‘Black Fork Creek FEDERAL COMMUNICATIONS issue, the Committee requested an Tributary D–3’’. COMMISSION additional meeting for a final review of 7. On the same page, in the same the key decisions and draft report prior section, in the same table, in the same 47 CFR Part 1 to its submission to the Secretary by column, in the eighth entry ‘‘Tributary [WT Docket No. 08–61, WT Docket No. 03– October 31, 2011. The logistical D–4’’ should read ‘‘Black Fork Creek 187; DA 11–1608] challenges of scheduling an additional Tributary D–4’’. meeting after it was requested in August 8. On the same page, in the same Programmatic Environmental 2011 hindered an earlier publication of section, in the same table, in the same Assessment this meeting notice. column, in the ninth entry ‘‘Tributary D–5’’ should read ‘‘Black Fork Creek AGENCY: Federal Communications Dated: September 27, 2011. Tributary D–5’’. Commission. Reva Harris, 9. On page 53085, in the same section, ACTION: Proposed rule; extension of Acting Director, Division of Policy and in the same table, in the same column, comment period. Information Coordination. in the second entry ‘‘Tributary G–1’’ SUMMARY: [FR Doc. 2011–25465 Filed 10–3–11; 8:45 am] should read ‘‘Gilley Creek Tributary G– This document grants a motion requesting an extension of time BILLING CODE 4165–15–P 1’’. 10. On the same page, in the same to file comments in response to a draft section, in the same table, in the same programmatic environmental DEPARTMENT OF HOMELAND column, in the ninth entry ‘‘Tributary assessment (PEA) of the Antenna SECURITY 11’’ should read ‘‘West Mud Creek Structure Registration (ASR) program. Tributary 11’’. The purpose of the PEA is to evaluate Federal Emergency Management 11. On the same page, in the same the potential environmental effects of Agency section, in the same table, in the same the Commission’s ASR program. column, in the tenth entry ‘‘Tributary Owners of structures that are taller than 44 CFR Part 67 B’’ should read ‘‘West Mud Creek 200 feet above ground level or that may Tributary B’’. interfere with the flight path of a nearby [Docket ID FEMA–2011–0002; Internal 12. On the same page, in the same airport must register those structures Agency Docket No. FEMA–B–1213] section, in the same table, in the same with the FCC. Proposed Flood Elevation column, in the eleventh entry DATES: Comments on the proposed rule Determinations ‘‘Tributary M–1’’ should read ‘‘West published at 76 FR 54422, September 1, Mud Creek Tributary M–1’’. 2011, are now due on or before Correction 13. On the same page, in the same November 2, 2011. In proposed rule document 2011– section, in the same table, in the same ADDRESSES: You may submit comments, 21709 appearing on pages 53082–53086 column, in the twelfth entry ‘‘Tributary identified by WT Docket No. 08–61; WT in the issue of August 25, 2011, make M–2’’ should read ‘‘West Mud Creek Docket No. 03–187, by any of the the following correction: Tributary M–2’’. following methods: 14. On the same page, in the same • Electronic Filers: Comments may be PART 67—[CORRECTED] section, in the same table, in the same filed electronically using the Internet by column, in the thirteenth entry accessing the Commission’s Electronic 1. On page 53084, in § 67.4, in the ‘‘Tributary M–A’’ should read ‘‘West Comment Filing System (‘‘ECFS’’): table for ‘‘Smith County, Texas and Mud Creek Tributary M–A’’. http://www.fcc.gov/cgb/ecfs/, through a Incorporated Areas’’, in the first 15. On the same page, in the same link on the PEA Web site: http:// column, in the second entry ‘‘Tributary section, in the same table, in the same www.fcc.gov/pea, or via the Federal BF–1’’ should read ‘‘Black Fork Creek column, in the fourteenth entry eRulemaking Portal: http:// Tributary BF–1’’. ‘‘Tributary M–A.1’’ should read ‘‘West www.regulations.gov. 2. On the same page, in the same Mud Creek Tributary M–A.1’’. • Paper Filers: Parties who choose to section, in the same table, in the same 16. On the same page, in the same file by paper must file an original and column, in the third entry ‘‘Tributary section, in the same table, in the same four copies of each filing. If more than BF–M–1’’ should read ‘‘Black Fork column, in the fifteenth entry one docket or rulemaking number Creek Tributary BF–M–1’’. ‘‘Tributary M–A.2’’ should read ‘‘West appears in the caption of this 3. On the same page, in the same Mud Creek Tributary M–A.2’’. proceeding, filers must submit two section, in the same table, in the same 17. On the same page, in the same additional copies for each additional column, in the fourth entry ‘‘Tributary section, in the same table, in the same docket or rulemaking number. D’’ should read ‘‘Black Fork Creek column, in the sixteenth entry Filings can be sent by hand or Tributary D’’. ‘‘Tributary M–C’’ should read ‘‘West messenger delivery, by commercial 4. On the same page, in the same Mud Creek Tributary M–C’’. overnight courier, or by first-class or section, in the same table, in the same 18. On the same page, in the same overnight U.S. Postal Service mail. All column, in the fifth entry ‘‘Tributary D– section, in the same table, in the same filings must be addressed to the 1’’ should read ‘‘Black Fork Creek column, in the seventeenth entry Commission’s Secretary, Office of the Tributary D–1’’. ‘‘Tributary M–C.1’’ should read ‘‘West Secretary, Federal Communications 5. On the same page, in the same Mud Creek Tributary M–C.1’’. Commission. section, in the same table, in the same 19. On the same page, in the same Æ All hand-delivered or messenger- column, in the sixth entry ‘‘Tributary D– section, in the same table, in the same delivered paper filings for the 2’’ should read ‘‘Black Fork Creek column, in the eighteenth entry Commission’s Secretary must be Tributary D–2’’. ‘‘Tributary M–C.2’’ should read ‘‘West delivered to FCC Headquarters at 445 6. On the same page, in the same Mud Creek Tributary M–C.2’’. 12th St., SW., Room TW–A325, column, in the same table, in the same [FR Doc. C1–2011–21709 Filed 10–3–11; 8:45 am] Washington, DC 20554. All hand column, in the seventh entry ‘‘Tributary BILLING CODE 1505–01–P deliveries must be held together with

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rubber bands or fasteners. Any ADDRESSES: Submit comments Regulation (FAR) relating to cost or envelopes must be disposed of before identified by DFARS Case 2011–D049, pricing data were revised (76 FR 53135, entering the building. The filing hours using any of the following methods: published August 30, 2010). The final are 8 a.m. to 7 p.m. Æ Regulations.gov: http:// rule under FAR Case 2005–036, FAC Æ Commercial overnight mail (other www.regulations.gov. Submit comments 2005–45, redefined ‘‘cost or pricing than U.S. Postal Service Express Mail via the Federal eRulemaking portal by data’’ to mean all cost or pricing data and Priority Mail) must be sent to 9300 entering ‘‘DFARS Case 2011–D049’’ and added a new term for ‘‘certified cost East Hampton Drive, Capitol Heights, under the heading ‘‘Enter keyword or or pricing data.’’ Previously, the term MD 20743. ID’’ and selecting ‘‘Search.’’ Select the ‘‘cost or pricing data’’ had been defined Æ U.S. Postal Service first-class, link ‘‘Submit a Comment’’ that to mean only what is now defined as Express, and Priority mail must be corresponds with ‘‘DFARS Case 2011– ‘‘certified cost or pricing data.’’ addressed to 445 12th Street, SW., D049.’’ Follow the instructions provided Throughout the FAR, the term ‘‘cost or Washington, DC 20554. at the ‘‘Submit a Comment’’ screen. pricing data’’ was generally replaced FOR FURTHER INFORMATION CONTACT: Please include your name, company with the new term ‘‘certified cost or Aaron Goldschmidt, Wireless name (if any), and ‘‘DFARS Case 2011– pricing data.’’ The same final rule also Telecommunications Bureau, (202) 418– D049’’ on your attached document. replaced the term ‘‘information other Æ E-mail: [email protected]. Include 7146, or e-mail than cost or pricing data’’ with the new DFARS Case 2011–D049 in the subject [email protected]. term ‘‘data other than certified cost or line of the message. Æ pricing data.’’ The new definition of SUPPLEMENTARY INFORMATION: The FCC Fax: 703–602–0350. these terms in the FAR is significant Æ Mail: Defense Acquisition has established a Web site, http:// because the conforming changes to the Regulations System, Attn: Amy G. www.fcc.gov/pea, which contains DFARS, currently being processed Williams, OUSD (AT&L) DPAP/DARS, information and downloadable under DFARS Case 2011–D040, Room 3B855, 3060 Defense Pentagon, documents relating to the PEA process, Definition of Cost or Pricing Data, are including the Draft PEA. The Web site Washington, DC 20301–3060. Comments received generally will be not yet implemented. Therefore, this also allows individuals to contact the rule includes conforming changes to Commission. See original published posted without change to http:// www.regulations.gov, including any DFARS 215.4, in order to ensure that it document (proposed rule published at is clear that only submission of certified 76 FR 54422, September 1, 2011). personal information provided. To confirm receipt of your comment(s), cost or pricing data has been waived for Federal Communications Commission. please check http:// the Canadian Commercial Corporation Matthew Nodine, www.regulations.gov, approximately and its subcontractors. Chief of Staff, Wireless Telecommunications two to three days after submission to FAR 15.402 and FAR 15.403–3 Bureau. verify posting (except allow 30 days for address requiring data other than [FR Doc. 2011–25576 Filed 9–30–11; 11:15 am] posting of comments submitted by certified cost or pricing data. FAR BILLING CODE 6712–01–P mail). 15.402 emphasizes obtaining no more FOR FURTHER INFORMATION CONTACT: data than is necessary to establish a fair Amy G. Williams, telephone 703–602– and reasonable price. Generally, no DEPARTMENT OF DEFENSE 0328. additional data is required from the offeror if the price is based on adequate Defense Acquisition Regulations SUPPLEMENTARY INFORMATION: price competition. FAR System I. Background 15.402(a)(2)(ii)(A) and FAR 15.403– 3(a)(1)(iv) both address the exceptions This proposed rule implements a 48 CFR Parts 215, 225, and 252 to obtaining data related to prices, i.e., recommendation of a bilateral integrated FAR 15.403–1(b)(1) (prices based on RIN 0750–AH42 product team on cost or pricing data, adequate price competition) or FAR including representatives from the U.S. 15.403–1(b)(2) (prices set by law or Defense Federal Acquisition Government and Canada. Regulation Supplement: Contracting With some exceptions, as provided at regulation). None of these exceptions With the Canadian Commercial DFARS 225.870–1(c), the Canadian provides a general exception to the Corporation (DFARS Case 2011–D049) Commercial Corporation awards and requirement to obtain data other than administers DoD contracts with certified cost or pricing data based on a AGENCY: Defense Acquisition contractors located in Canada. waiver of the requirement to provide Regulations System, Department of DoD has waived the requirement for certified cost or pricing data. In fact, Defense (DoD). the Canadian Commercial Corporation FAR 15.403–3(a)(1)(ii) clearly states that ACTION: Proposed rule. and its subcontractors to submit in those acquisition that do not require certified cost or pricing data (see DFARS certified cost or pricing data (e.g., when SUMMARY: DoD is proposing to amend 215.403–1(c)(4)(C)). However, the a waiver has been granted), the the Defense Federal Acquisition requirement to submit data other than contracting officer shall obtain data Regulation Supplement (DFARS) to certified cost or pricing data has not other than certified cost or pricing data clarify the requirements for the been waived for the Canadian from the offeror to the extent necessary Canadian Commercial Corporation to Commercial Corporation and its to determine a fair and reasonable price submit data other than certified cost or subcontractors. The purpose of this rule if the contracting officer determines that pricing data. is to clarify the requirement to submit adequate data from sources other than DATES: Comment Date: Comments on data other than certified cost or pricing the offeror are not available. FAR the proposed rule should be submitted data. 15.403–3(a)(1)(v) recommends in writing to the address shown below consideration of the guidance in section on or before December 5, 2011, to be II. Discussion and Analysis 3.3, chapter 3, volume I, of the Contract considered in the formation of a final Effective on October 1, 2010, the Pricing Reference Guide, available at rule. definitions in the Federal Acquisition http://www.acq.osd.mil/dpap/cpf/

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contract_pricing_reference_guides.html. and reasonable (see FAR 15.403– V. Paperwork Reduction Act The contracting officer would not 3(a)(2)). The rule contains information usually require all of the listed items, III. Executive Orders 12866 and 13563 collection requirements that require the but would select only those items approval of the Office of Management necessary in order to determine that the Executive Orders (E.O.s) 12866 and and Budget under the Paperwork price is fair and reasonable. 13563 direct agencies to assess all costs Reduction Act (44 U.S.C. chapter 35); In order to facilitate requests for data and benefits of available regulatory however, these changes to the DFARS other than certified cost or pricing data alternatives and, if regulation is do not impose additional information when contracting with the Canadian necessary, to select regulatory collection requirements to the Commercial Corporation, this rule approaches that maximize net benefits paperwork burden previously approved proposes a new provision, Requirement (including potential economic, under OMB Control Number 9000–0013, for Submission of Data Other Than environmental, public health and safety Cost or Pricing Data Requirements and Certified Cost or Pricing Data— effects, distributive impacts, and Information Other Than Cost or Pricing Canadian Commercial Corporation, for equity). E.O. 13563 emphasizes the Data. use in appropriate solicitations with the importance of quantifying both costs Canadian Commercial Corporation, and and benefits, of reducing costs, of List of Subjects in 48 CFR Parts 215, a comparable clause, Requirement for harmonizing rules, and of promoting 225, and 252 Submission of Data Other Than flexibility. This is a significant Government procurement. Certified Cost or Pricing Data— regulatory action and, therefore, was Modifications—Canadian Commercial subject to review under section 6(b) of Ynette R. Shelkin, Corporation, to be included in contracts E.O. 12866, Regulatory Planning and Editor, Defense Acquisition Regulations to cover modifications that may require Review, dated September 30, 1993. This System. submission of data other than certified rule is not a major rule under 5 U.S.C. Therefore, 48 CFR parts 215, 225, and cost or pricing data. This provision and 804. 252 are amended as follows: clause are a tailored version of Alternate 1. The authority citation for 48 CFR IV. Regulatory Flexibility Act IV of— parts 215, 225, and 252 continues to • FAR 52.215–20, Requirements for DoD does not expect this rule to have read as follows: Certified Cost or Pricing Data and Data a significant economic impact on a Authority: 41 U.S.C. 1303 and 48 CFR Other than Certified Cost or Pricing substantial number of small entities chapter 1. Data; and within the meaning of the Regulatory • FAR 52.215–21, Requirements for Flexibility Act, 5 U.S.C. 601, et seq., PART 215—CONTRACTING BY Certified Cost or Pricing Data and Data because it only impacts Canadian NEGOTIATION Other than Certified Cost or Pricing business concerns. No domestic entities 2. Amend section 215.403–1 by Data—Modification. will be impacted by this rule. For the revising the heading and revising The provision and clause both require definition of ‘‘small business’’, the paragraph (c)(4)(C) to read as follows: the following information: Regulatory Flexibility Act refers to the • Profit rate or fee (as applicable). Small Business Act, which in turn 215.403–1 Prohibition on obtaining • Analysis provided by Public Works allows the U.S. Small Business certified cost or pricing data (10 U.S.C. and Government Services Canada to Administration (SBA) Administrator to 2306a and 41 U.S.C. chapter 35). Canadian Commercial Corporation to specify detailed definitions or * * * * * determine a fair and reasonable price standards. 5 U.S.C. 601(3) and 15 U.S.C. (c) * * * (comparable to the analysis required by 632(a). The SBA regulations at 13 CFR (4) * * * FAR 15.404–1). 121.105 discuss who is a small business: (C) DoD has waived the requirement • Data other than certified cost or ‘‘(a)(1) Except for small agricultural for submission of certified cost or pricing data necessary to permit an cooperatives, a business concern eligible pricing data for the Canadian adequate determination by the U.S. for assistance from SBA as a small Commercial Corporation and its contracting officer that the proposed business is a business entity organized subcontractors (but see 215.408(3) and price is fair and reasonable. (The U.S. for profit, with a place of business 225.870–4(d)). contracting officer must insert a located in the United States, and which * * * * * description of the data required, in operates primarily within the United 3. Amend section 215.408 by adding accordance with the guidance at States or which makes a significant paragraph (3) to read as follows: 15.403–3(a)(1).) contribution to the U.S. economy 215.408 Solicitation provisions and The rule prescribes use of this through payment of taxes or use of contract clauses. American products, materials or labor.’’ provision and clause in solicitations and * * * * * contracts for sole source acquisitions Therefore, an initial regulatory (3) When contracting with the from the Canadian Commercial flexibility analysis has not been Canadian Commercial Corporation— Corporation that are expected to result performed. DoD invites comments from (i) Use the provision at 252.215– in cost-reimbursement contracts small business concerns and other 70XX, Requirement for Data Other Than expected to exceed the simplified interested parties on the expected Certified Cost or Pricing Data— acquisition threshold or fixed-price impact of this rule on small entities. (A) In solicitations for sole source contracts expected to exceed $500 DoD will also consider comments acquisitions that are— million. The provision and clause may from small entities concerning the (1) Cost-reimbursement, if the also be used in other solicitations and existing regulations in subparts affected contract value is expected to exceed the contracts if the head of the contracting by this rule in accordance with 5 U.S.C. simplified acquisition threshold; or activity, or designee no lower than one 610. Interested parties must submit such (2) Fixed-price, if the contract value is level above the contracting officer, comments separately and should cite 5 expected to exceed $500 million; or determines that such data is needed in U.S.C 610 (DFARS Case 2011–D049), in (B) In other solicitations, if the head order to determine that the price is fair correspondence. of the contracting activity, or designee

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no lower than one level above the other than certified cost or pricing data the data required in accordance with 15.403– contracting officer, determines that data exclusively through the Canadian 3(a)(1)]. other than certified cost or pricing data Commercial Corporation. (End of clause.) is needed in order to determine that the * * * * * [FR Doc. 2011–25237 Filed 10–3–11; 8:45 am] price is fair and reasonable (see FAR BILLING CODE 5001–06–P 15.403–3(a)(2)); and PART 252—SOLICITATION (ii) Use the clause at 252.215–70YY, PROVISIONS AND CONTRACT CLAUSES Requirement for Data Other Than DEPARTMENT OF THE INTERIOR Certified Cost or Pricing Data— 5. Add section 252.215–70XX to read Modifications—Canadian Commercial as follows: Fish and Wildlife Service Corporation— (A) In solicitations and contracts for 252.215–70XX Requirement for 50 CFR Part 17 sole source acquisitions that are— Submission of Data Other Than Certified (1) Cost-reimbursement, if the Cost or Pricing Data—Canadian [FWS–R1–ES–2008–0048; MO 92210–0–0008 contract value is expected to exceed the Commercial Corporation. B2] simplified acquisition threshold; or As prescribed at 215.408(3), use the Endangered and Threatened Wildlife (2) Fixed-price, if the contract value is following provision: and Plants; 12-Month Finding on a expected to exceed $500 million; or REQUIREMENT FOR SUBMISSION OF Petition To List the Lake Sammamish (B) In other solicitations and DATA OTHER THAN CERTIFIED Kokanee Population of Oncorhynchus contracts, if the head of the contracting COST OR PRICING DATA— nerka as an Endangered or Threatened activity, or designee no lower than one CANADIAN COMMERCIAL Distinct Population Segment level above the contracting officer, CORPORATION (DATE) determines that it is reasonably certain AGENCY: Fish and Wildlife Service, that data other than certified cost or (a) Submission of certified cost or pricing Interior. pricing data will be needed in order to data is not required. ACTION: Notice of a 12-month petition determine that the price of (b) Canadian Commercial Corporation shall finding. obtain and provide the following: modifications is fair and reasonable (see (1) Profit rate or fee (as applicable). FAR 15.403–3(a)(2)). SUMMARY: We, the U.S. Fish and (2) Analysis provided by Public Works and Wildlife Service (Service), announce a Government Services Canada to the Canadian PART 225—FOREIGN ACQUISITION Commercial Corporation to determine a fair 12-month finding on a petition to list and reasonable price (comparable to the the Lake Sammamish kokanee, 4. Amend section 225.870–4 by analysis required at FAR 15.404–1). Oncorhynchus nerka, as an endangered redesignating paragraph (c) as paragraph (3) Data other than certified cost or pricing or threatened species under the (d) and adding new paragraph (c) to data necessary to permit a determination by Endangered Species Act of 1973, as read as follows: the U.S. Contracting Officer that the amended (Act). After review of all proposed price is fair and reasonable [U.S. 225.870–4 Contracting procedures. available scientific and commercial Contracting Officer to insert description of information, we find that the Lake * * * * * the data required in accordance with 15.403– 3(a)(1)]. Sammamish kokanee population is not (c) Requirement for data other than a listable entity under the Act and, certified cost or pricing data. (1) DoD (End of provision) therefore, listing is not warranted. We has waived the requirement for 6. Add section 252.215–70YY to read ask the public to continue to submit to submission of certified cost or pricing as follows: us any new information that becomes data for the Canadian Commercial available concerning the taxonomy, Corporation and its subcontractors (see 252.215–70YY Requirement for Submission of Data Other Than Certified biology, ecology, and status of Lake 215.403–1(c)(4)(C)). Sammamish kokanee, and to support (2) The Canadian Commercial Cost or Pricing Data—Modifications— Canadian Commercial Corporation. cooperative conservation efforts for this Corporation is not exempt from the population. requirement to submit data other than As prescribed at 215.408(3), use the DATES: certified cost or pricing data, as defined following clause: The finding announced in this document was made on October 4, 2011. in FAR 2.101. In accordance with FAR REQUIREMENT FOR SUBMISSION OF ADDRESSES: This finding is available on 15.403–3(a)(1)(ii), the contracting officer DATA OTHER THAN CERTIFIED the Internet at http:// shall require submission of data other COST OR PRICING DATA— www.regulations.gov at docket number than certified cost or pricing data from MODIFICATIONS—CANADIAN [FWS–R1–ES–2008–0048]. Supporting the offeror, to the extent necessary to COMMERCIAL CORPORATION documentation we used to prepare this determine a fair and reasonable price. (DATE) (3) The contracting officer shall use finding is available for public the provision at 252.215–70XX, (a) Submission of certified cost or pricing inspection, by appointment, during data is not required. Requirement for Data Other Than normal business hours at the U.S. Fish (b) Canadian Commercial Corporation shall and Wildlife Service, Washington Fish Certified Cost or Pricing Data— obtain and provide the following: Canadian Commercial Corporation, and (1) Profit rate or fee (as applicable). and Wildlife Office, 510 Desmond the clause at 252.215–70YY, (2) Analysis provided by Public Works and Drive, SE., Suite 102, Lacey, WA 98503. Requirement for Data Other Than Government Services Canada to the Canadian Please submit any new information, Certified Cost or Pricing Data— Commercial Corporation to determine a fair materials, comments, or questions Modifications—Canadian Commercial and reasonable price (comparable to the concerning this finding to the above Corporation, as prescribed at analysis required at FAR 15.404–1). address. (3) Data other than certified cost or pricing 215.408(3)(i) and (ii), respectively. data necessary to permit a determination by FOR FURTHER INFORMATION CONTACT: Ken (4) Except for contracts described in the U.S. Contracting Officer that the Berg, Manager, Project Leader, 225.870–1(c)(1) through (4), Canadian proposed price is fair and reasonable [U.S. Washington Fish and Wildlife Office, suppliers will provide required data Contracting Officer to insert description of U.S. Fish and Wildlife Service (see

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ADDRESSES) by telephone at 360–753– and stated that we anticipated making Species Information 6039; or by facsimile at 360–753–9405. an initial finding within 90 days as to Taxonomy and Range Persons who use a telecommunications whether the petition contained device for the deaf (TDD), may call the substantial information indicating that Oncorhynchus nerka (Order Federal Information Relay Service the action may be warranted. We also Salmoniformes, Family Salmonidae), is (FIRS) at 800–877–8339. advised that our initial review of the native to watersheds in the north Pacific SUPPLEMENTARY INFORMATION: petition did not indicate that an from southern Kamchatka to Japan in the western Pacific, and from Alaska to Background emergency listing situation existed, but that if conditions changed and we the Columbia River in North America (Page and Burr 1991, p. 52; Taylor et al. Section 4(b)(3)(B) of the Endangered determined that emergency listing was 1996, pp. 402–403). There are three life Species Act of 1973, as amended (Act) warranted, an emergency rule may be forms of this species, which are (16 U.S.C. 1531 et seq.) requires that, for developed. Funding became available to any petition to revise the Lists of discussed in greater detail below: (1) work on the 90-day finding on October Anadromous (ocean-going) sockeye; (2) Endangered and Threatened Wildlife 1, 2007. We published a notice of 90- and Plants that contains substantial residual sockeye, and (3) kokanee. The day finding in the Federal Register on scientific or commercial information kokanee life form was at one time May 6, 2008 (73 FR 24915), determining that listing the species may be thought to be a separate subspecies that the petition presented substantial warranted, we make a finding within (Oncorhynchus nerka kennerlyi, 12 months of the date of receipt of the scientific information indicating that Suckley 1861), and that taxonomy petition on whether the petitioned listing the Lake Sammamish kokanee continues to be reflected in some action is: (a) Not warranted; (b) may be warranted, and that we were scientific papers and other studies warranted; or (c) warranted, but initiating a status review of the species (Robertson 1961; McLellan et al. 2001; immediate proposal of a regulation and opening a 60-day public comment Carruth et al. 2000; Maiolie et al. 1996). implementing the petitioned action is period. On December 14, 2009, we However, kokanee and sockeye are precluded by other pending proposals to received a 60-day notice of intent to sue formally recognized as the same species determine whether species are from the Center for Biological Diversity (O. nerka) by the scientific community, threatened or endangered, and over the Service’s failure to make a 12- and in the integrated taxonomic data expeditious progress is being made to month finding as required by the Act system (ITIS) (http://www.itis.gov/ add or remove qualified species from (CBD v. Ken Salazar, U.S. District Court, servlet/SingleRpt/SingleRpt?search_ the Lists of Endangered and Threatened District of Oregon, CV 10–0176–JO). A topic=TSN&search_value=161979). Wildlife and Plants. Section 4(b)(3)(C) of complaint was filed with the court on Despite their recognized conspecific the Act requires that we treat a petition February 17, 2010. status, sympatric populations of sockeye for which the requested action is found We received comments and and kokanee (those that occur in the to be warranted but precluded as though information from the following same or overlapping geographic areas) resubmitted on the date of such finding; individuals and organizations in are biologically and genetically distinct that is, requiring a subsequent finding to response to the 90-day finding: King (Foote et al. 1989, in Young et al. 2004, be made within 12 months. Such 12- County Department of Natural p. 63). Based on the best available month findings must be published in Resources and Parks, James Mattila, information, we consider the Lake the Federal Register. This notice Trout Unlimited, Snoqualmie Indian Sammamish kokanee population to constitutes our 12-month finding for the Tribe, Save Lake Sammamish, Friends belong to the species Oncorhynchus nerka. petition to list the Lake Sammamish of Pine Lake Creek, Washington population of kokanee. Department of Fish and Wildlife, and Kokanee Evolution Previous Federal Actions Sno-King Watershed Council. We have All kokanee populations are On July 9, 2007, we received a fully considered the comments and evolutionarily derived from sockeye petition from Trout Unlimited; the City information presented by these salmon. Sockeye salmon (anadromous of Issaquah, Washington; King County, commentors in this finding. In addition, Oncorhynchus nerka) give rise to Washington; People for Puget Sound; during our status assessment, we kokanee over evolutionary timeframes Save Lake Sammamish; the Snoqualmie generally found that much more (hundreds to thousands of years) as a Tribe; and the Wild Fish Conservancy information was available on the status result of isolation or selective pressures requesting that all wild, indigenous, of sockeye populations, compared to related to difficulty of migration and naturally spawned kokanee kokanee populations at the rangewide lake productivity (Wood et al. 2008, pp. (Oncorhynchus nerka) in Lake scale, which may be related to the 208–210). All kokanee are at the end of Sammamish, Washington, be listed as a commercial importance of sockeye a long chain of events where individuals threatened or endangered species under salmon. To evaluate whether the of the anadromous sockeye entered a the Endangered Species Act. The population of kokanee in Lake lake and selective pressures founded a petition clearly identified itself as such Sammamish qualifies as a listable entity residual sockeye population, then and included the requisite identification under the Act, we must first determine selective pressures or perhaps a geologic information for the petitioners, as if it satisfies the criteria for being a event selected for a kokanee population. required in 50 CFR 424.14(a). Included distinct population segment. Under the The evolution of the O. nerka forms is in the petition was supporting Policy Regarding the Recognition of unidirectional, and established resident, information regarding the species’ Distinct Vertebrate Population Segments migratory, or kokanee forms generally declining numbers, reduced (DPS Policy), which was published in do not create successful progeny of the productivity, a decline in the quantity the Federal Register on February 7, other forms (Wood et al. 2008, pp. 209– and quality of their habitat, and 1996 (61 FR 4722), we are required to 210). narrowing temporal, spatial, and genetic evaluate the discreteness and Taylor et al. (1996, pp. 411–414), diversity. We acknowledged the receipt significance of the petitioned entity found multiple episodes of independent of the petition in a letter to the against the rest of the taxon, at the divergence between sockeye and petitioners dated September 24, 2007, rangewide scale. kokanee throughout their current range.

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As ancestral anadromous sockeye around age four. Sympatric kokanee and generally remain east of the populations expanded to new river sockeye populations are typically International Dateline and south of the systems, those that could not access the temporally or spatially separated. In Aleutian Islands, while those from Asia marine environment on a regular basis cases where they are not, assortative originate in freshwater habitats from evolved into the non anadromous mating by body size usually leads to Cape Navarin Peninsula in the Bering kokanee form or developed a sympatric assortative mating by type (Gustafson et Sea to north of Sakhalin Island in the population of the non anadromous al. 1997, p. 30). Said another way, Sea of Okhotsk. Most sockeye from kokanee form. This has resulted in sockeye are typically larger and spawn Canadian rivers spend 2 years in the native kokanee populations typically with other sockeye, while kokanee are ocean, while those from other rivers being genetically more similar to their smaller and spawn with other kokanee. spend 1, 3 or 4 years (Hart 1973, p. 121). sympatric (occupying the same Both kokanee and anadromous Native populations of kokanee, each geographic area without interbreeding) sockeye turn from silver to bright red associated with a specific nursery lake, sockeye populations than to kokanee in during maturation, while the head is likely occurred historically over most of other river systems (Taylor et al. 1996, olive green and the fins are blackish red the range of sockeye salmon within the pp. 401, 413–414). However, there are (Craig and Foote 2001, p. 381). Columbia River to the Yukon River exceptions (e.g., Lake Ozette, Typically, resident or ‘‘residual systems. Native kokanee populations are Washington) where native sympatric sockeye’’ (progeny of anadromous not widespread in Alaska (McGurk kokanee and sockeye populations were sockeye that do not migrate to sea but 2000, p. 1801) or Asia (McPhail 2007, p. determined to be genetically dissimilar, are not kokanee) turn from silver to 288). There are said to be well over 500 which suggests in these cases that they green (Foote et al. 2004, p. 70). kokanee populations in British were established through a different Although adult kokanee resemble Columbia (B.C.) (McPhail 2007, p. 295). founding event (Winans et al. 1996, pp. sockeye salmon, they have significant No native kokanee are known from the 655–656). morphological and physiological B.C. portion of the Yukon River (B.C. differences. Kokanee are more efficient Ministry of Fisheries 1998, p. 17), and Differences Between Sockeye and at extracting carotinoids from food although introduction activities have Kokanee resources; have higher gill raker counts, spread kokanee throughout the Sockeye salmon are primarily which is known to be an inherited trait; province, only two natural populations anadromous, migrating to the Pacific and are normally smaller in size at are known from the Mackenzie River Ocean following hatching and rearing in maturity than sockeye because they are system (McPhail 2007, p. 289). Kokanee freshwater. Most populations are confined to freshwater environments, have been widely introduced across associated with a natal lake. They spend which are less productive than the North America, including areas outside 2 to 3 years in marine waters before ocean (Burgner 1991, p. 59; Gustafson et their larger geographic distribution and returning to freshwater environments to al. 1997, p. 29; Craig and Foote 2001, p. farther inland in States and provinces spawn and die. Some progeny within 387; Leary et al. 1985 in Wood 1995, p. where they occur naturally (Scott and each sockeye population may remain in 203). Kokanee maintain a constant egg Crossman 1973, p. 167). freshwater throughout their lifecycle size, while increasing egg number with Sammamish River/Lake Sammamish and are called ‘‘residual sockeye’’ or increasing body size; sockeye increase Watershed Kokanee Population ‘‘residuals’’ (Gustafson et al. 1997, p. both egg number and egg size with Groupings 20). Unlike sockeye, kokanee are non increasing body size. It is thought that anadromous and spend their entire lives this characteristic may be related to the Lake Sammamish kokanee in freshwater habitats (Meehan and less energetically costly kokanee distribution (the petitioned entity): Lake Bjorn 1991, pp. 56–57). Ricker (1938) spawning migrations and the smaller Washington is the dominant feature of first used the terms ‘‘residual sockeye’’ particle size of spawning gravel that can the greater Lake Washington/Lake and ‘‘residuals’’ to refer to these be exploited (McGurk 2000, p. 1802). Sammamish Basin and is fed by two resident, non migratory progeny of Other studies have demonstrated that major drainage systems. The Cedar anadromous salmon (Quinn 2005, p. under-yearling sockeye salmon exhibit River watershed at the south end of the 210). These ‘‘residuals’’ were much superior swimming ability compared to lake, and the Sammamish River/Lake smaller at maturity than the kokanee (Taylor and Foote 1991). Sammamish watershed at the north end anadromous fish because growing Further, although kokanee appear to of the lake. Surface water discharge conditions in the lakes are generally have maintained some degree of from Lake Sammamish is by way of the poorer than those at sea (Quinn 2005, p. seasonal adaptation to saltwater, which Sammamish River at the north end of 210). Wood (1995) hypothesizes that the is part of the smoltification process of the lake, which ultimately flows into evolution of sockeye populations may anadromous salmonids (complex Lake Washington. The four major proceed from postglacial colonization physiological changes that enable tributaries that discharge into the by ocean-type fish, to lake-type juvenile salmon to make the transition Sammamish River are Swamp Creek, populations if a suitable lake is present, from freshwater to saltwater), North Creek, Little Bear Creek, and Bear and then to kokanee if there is some genetically there are significant Creek. The major tributary to Lake combination of good growing conditions differences in the timing (delayed) and Sammamish is Issaquah Creek, which and an arduous migration (Quinn 2005, duration (short-lived) compared to enters at the south end of the lake and pp. 301–302). Kokanee young are sockeye (Foote et al. 1992, pp. 106–108). contributes approximately 70 percent of spawned in freshwater streams and the inflow to the lake (Kerwin 2001, p. subsequently migrate to a nursery lake Sockeye and Kokanee Distribution 425). Native kokanee historically (Burgner 1991, pp. 35–37), where they Sockeye occur in watersheds in the spawned in tributaries located remain until maturity. In some cases north Pacific from southern Kamchatka throughout Lake Washington and Lake kokanee are spawned along the to Japan in the western Pacific, and from Sammamish. Although the Sammamish shoreline of the nursery lake itself (Scott Alaska to the Columbia River in North River and Cedar River (Walsh Lake) and Crossman 1973, p.168). When America (Page and Burr 1991, p. 52; drainages have been included within mature, they return to natal freshwater Taylor et al. 1996, pp. 402–403). the current distribution of native streams to spawn and die, typically Sockeye salmon of Canadian origin kokanee in prior assessments (Gustafson

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et al. 1997, p. 123; Berge and Higgins indicate possible beach spawning returns as low as 64 in 1997, and as high 2003, p. 3), their current spawning within the lake. as 4,702 in 2003 (Trout Unlimited et al. distribution in the Lake Washington/ 2007, p. 18). Annual spawner returns Sammamish River/Lake Sammamish Lake Sammamish Basin appears to be averaged 946 fish, with a median return Watershed Kokanee Escapement of 594 fish during this period (Trout limited to portions of the Lake Surveys Sammamish drainage. For the purposes Unlimited et al. 2007, p. 16). From 2004 of this finding, we are analyzing a Summer/early-run: Berggren (1974, p. to 2007, the average spawner return was petitioned entity that includes the 9) and Pfeifer (1995, pp. 8–9, 21–22) 463 fish, although in two of the four native kokanee population found in the report escapements (the number of fish spawning streams currently used by the Lake Sammamish drainage. arriving at a natal stream or river to winter/late-run (Laughing Jacobs Creek spawn) of summer/early-run Issaquah Although the major tributary to Lake and Pine Lake Creek), there were fewer Creek kokanee numbering in the Sammamish is Issaquah Creek, there are than 70 fish counted annually in each thousands during the 1970s. Since 1980, also several smaller tributaries to Lake stream (Jackson 2009). In 2008, the the escapement of early-run kokanee in Sammamish used for spawning by estimated spawner return was 42 Issaquah Creek has ‘‘plummeted kokanee, including Ebright Creek, Pine individuals with none observed in Pine dramatically’’ (Berge and Higgins 2003, Lake Creek, Laughing Jacobs Creek, and Lake Creek and only one kokanee p. 18). Between 1998 and 2001, only Lewis Creek (Berge and Higgins 2003, p. observed in Laughing Jacobs Creek three summer/early-run kokanee redds (Jackson 2009, pp. 1–6). This 5). Kokanee in the Sammamish River/ (gravel nests of fish eggs) were observed Lake Sammamish watershed (referred to represented the lowest escapement for in Issaquah Creek (Berge and Higgins this population on record, although in by the petitioners as the Lake 2003, p. 18). The last time summer/ Sammamish population) are separated 2009 the estimated spawner return was early-run kokanee were observed was 1,655 individuals, which was the largest into three groups: (1) Summer/early-run; during the summer of 2000, when only (2) fall/middle-run; and, (3) winter/late- escapement recorded since 2003 two individuals were recorded (Jackson 2010, p. 11). The longest run, based on spawn timing and (Washington Trout 2004, p. 3). In July location (Berge and Higgins 2003, p. 3; accessible spawning stream currently 2001 and 2002, the Washington used by the winter/late-run, Lewis Young et al. 2004, p. 66). Summer/early- Department of Fish and Wildlife Creek, is 0.75 mile (mi) (1.2 kilometers run kokanee spawn during late summer installed a fish weir across Issaquah (km)), and the combined spawning (August through September) in Issaquah Creek in an attempt to capture all reaches of the core spawning streams Creek, and are the only run of kokanee migrating summer/early-run kokanee (Lewis Creek, Laughing Jacobs Creek, known to spawn in that creek, although and spawn them in a hatchery for a and Ebright Creek) total less than 1.0 introduced sockeye salmon spawn there supplementation program. No kokanee mile (1.6 km) (Jackson 2006, p. 5). in October. Fall/middle-run kokanee were observed or captured (WDFW Winter/late run propagation efforts have spawn in late September through 2002, pp. 5–7). Further, there were no recently been implemented, and are November, primarily in larger summer/early-run kokanee observed described below. Sammamish River tributaries including during spawner surveys conducted in Swamp Creek, North Creek, Bear Creek, 2003 (Washington Trout 2004, p. 2), Winter/Late Run Propagation Efforts Little Bear Creek, and Cottage Lake leading King County and Washington In the fall of 2009, approximately Creek (Berge and Higgins 2003, pp. 21– Department of Fish and Wildlife 35,000 eggs were harvested from mature 25). Winter/late-run kokanee spawn biologists to conclude that the summer/ kokanee collected from Lewis, Ebright, from late fall into winter (October early-run is functionally extinct (Berge and Laughing Jacobs Creeks by teams through January) in Lake Sammamish and Higgins 2003, p. 33; Jackson 2006, from the Issaquah Creek salmon tributaries including Lewis Creek, p. 1). hatchery. The eggs were shipped to the Ebright Creek, and Laughing Jacobs Fall/middle-run: In the 1940s, the fall/ Cedar River and Chambers Creek Creek (Berge and Higgins 2003, pp. 26– middle-run kokanee was estimated to hatcheries in Washington State for 29). Some winter/late-run spawning number from 6,000 to as many as 30,000 development into fry, for use in kokanee have also been recorded in spawners in Bear Creek, a tributary to supplementing the native kokanee Vasa Creek, Pine Lake (Trout Unlimited the Sammamish River (Connor et al. population in Lake Sammamish. In et al. 2007, p. 9), and Tibbetts Creek 2000, pp. 13–14), although these March 2010, approximately 14,000 (Berge and Higgins 2003, pp. 5, 30) in estimates are confounded by the high kokanee fry were released into Lewis, the recent past. Berge and Higgins numbers of out-of-basin and in-basin Ebright, and Laughing Jacobs Creeks; (2003, p. 5) identified George Davis, kokanee introductions during this time another release of 20,000 fry into the Zaccuse, and Alexander’s Creeks as part period. Between 1917 and 1969, more same creeks was done on April 14, of the historical spawning distribution than 44 million kokanee were 2010. The eventual success of these for winter/late-run kokanee. On at least introduced into Bear Creek and its efforts remains to be determined one occasion, kokanee, presumed to be tributaries, 35 million of which (http://www.issaquahpress.com/2010/ winter/late-run based on spawn timing, originated from Lake Whatcom in 04/20/the-fish-journal-bar-codes-help- were observed spawning in Lake northwestern Washington (Gustafson et kokanee-salmon-in-their-survival/ Sammamish near the mouth of Ebright al. 1997, pp. 3–113). However, the #more-21481). Creek (Berge and Higgins 2003, p. 33), introduced kokanee were unable to suggesting that some degree of beach persist, and by the 1970s the native Sockeye and Kokanee Abundance spawning may also occur within the kokanee fall/middle-run was also Trends lake. More recently, what appears to be considered extinct by biologists from Quinn 2005 (p. 319) indicated the winter/late-run kokanee have been Washington Department of Game (now estimated average annual abundance of observed entering the lower reach of part of Washington Department of Fish sockeye salmon per region (catch and George Davis Creek at dusk (Nickel and Wildlife) (Fletcher 1973, p. 1). escapement of wild and hatchery fish) 2009) but then retreating back to Lake Winter/late-run: From 1996 to 2006, from 1981 to 2000 to be 83 million fish Sammamish during the day apparently the winter/late-run kokanee have had (Japan 0.0 million, Russia 10.0 million, without spawning. This may further highly variable spawner returns with Western Alaska 50.4 million, Central

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Alaska 20.3 million, and Southeast in 2010 were entering the ocean as the remaining time is spent in marine Alaska to California 19.3 million). The juveniles; and waters. The FWS has Act authority over estimated catch and escapement of (3) the occurrence of a major volcanic species that spend the major portion of North American sockeye salmon from eruption in Alaska’s Aleutian Islands in their lifetimes on land or in fresh water, 1951 through 2001 was 51.4 million fish 2008, which resulted in ash fertilizing or that spent part of their lifetimes in from 1,400 populations, averaging the ocean and triggering an algal bloom estuarine waters if a major portion of the approximately 37,000 fish per that possibly enhanced forage value and remaining time is spent on land or in population (Quinn 2005, p. 321). availability (Simon Fraser University et fresh water (USFWS and NOAA, 1974). Sockeye populations inhabiting the al. 2010, p. 2). Evolutionarily Significant Unit (ESU) southern portions of their range are in The Snake River sockeye and Distinct Population Segment (DPS) decline, whereas those in the northerly Evolutionarily Significant Unit (ESU) Policies regions are generally stable. In has remained at very low levels of only southwestern British Columbia, one- a few hundred fish, though there have In addition to the DPS policy, NOAAF third of the sockeye spawning runs been recent increases in the number of applies the ESU policy (56 FR 58612; known since the early 1950s have been hatchery-reared fish returning to spawn. November 20, 1991), which was lost or have decreased to such low Data quality for the Ozette Lake sockeye adopted prior to adoption of the U. S. numbers that spawners are not ESU make differentiating between the Fish and Wildlife Service and National consistently monitored (Ridell 1993, in number of hatchery and natural Marine Fisheries Service DPS Policy. Wood 1995, p. 195). These trends in spawners difficult, but in either case the The ESU policy considers a stock of number and magnitude of spawning size of the population is small, though Pacific salmon to be a distinct runs imply a loss of genetic diversity, possibly growing. Both the Snake River population and hence a ‘‘species’’ under through the loss of both locally adapted and Ozette Lake ESUs were listed as the Act, if it represents an ESU of the subpopulations and genetic variation endangered and threatened, biological species. A stock must satisfy due to low effective population sizes respectively, under the Act by the two criteria to be considered an ESU: (Wood 1995, p. 195). Subpopulations in National Marine Fisheries Service (now (1) It must be substantially the Hecata Strait–Queen Charlotte NOAA Fisheries (NOAAF) under their reproductively isolated from other Sound, Georgia Basin/Vancouver Island ESU policy (56 FR 58612; November 20, conspecific population units; and (2) It Area, Skeena River and Fraser River, 1991), (http://www.nmfs.noaa.gov/pr/ must represent an important component decreased in abundance considerably species/fish/sockeyesalmon.htm). in the evolutionary legacy of the over the last three generations. Towards We are unaware of average annual species. Under the ESU policy, the the northern end of their distribution, abundance records for kokanee; evolutionary legacy of a species is the sockeye were generally characterized by however, there are said to be well over genetic variability that is a product of stable-to-increasing trends in adult 500 kokanee populations in British past evolutionary events and which abundance. There were several notable Columbia (McPhail 2007, p. 295). No represents the reservoir upon which exceptions, however, to the north-to- native kokanee are known from the B.C. future evolutionary potential depends. south risk gradient, including portion of the Yukon River (B.C. This criteria would be met for purposes subpopulations in the Columbia and in Ministry of Fisheries 1998, p. 17), and of the ESU policy if the population eastern Washington State. Many of these although introduction activities have contributed substantially to the are supported through some level of spread kokanee throughout the ecological/genetic diversity of the artificial enhancement, however, which province, only two natural populations species as a whole (i.e., extinction of the may mask declines in wild populations are known from the Mackenzie River population would represent a (Rand 2008 (IUCN Red List Supporting system (McPhail 2007, p. 289). There significant loss to the ecological/genetic Documentation, O. nerka, (http:// are numerous introduced kokanee diversity of the species). In making this determination, NOAAF considers www.iucnredlist.org/apps/redlist/ populations maintained through whether: (1) The population is details/135301/0)). hatchery introductions to support genetically distinct from other Although Fraser River stocks as well recreational fisheries; kokanee have conspecific populations; (2) the as other West Coast sockeye salmon been widely introduced across North stocks had record returns in 2010 population occupies unusual or America, including areas outside their (Northwest Indian Fisheries distinctive habitat; and (3) the larger geographic distribution and Commission (NWIFC 2010, p. 1) population shows evidence of unusual farther inland in States and provinces (http://nwifc.org/2010/09/large-fraser- or distinctive adaptation to its where they occur naturally (Scott and sockeye-run-doesnt-make-up-for- environment. Crossman 1973, p. 167). decades-of-poor-fishing/), prior to this NOAAF states that while conclusive year most Fraser River stocks have Regulatory Context and Agency evidence does not yet exist regarding exhibited declining trends in Responsibilities the relationship of resident and productivity beginning as early as 1960 anadromous forms of Oncorhynchus National Oceanic and Atmospheric (Fisheries and Oceans Canada (DFO) nerka, the available evidence suggests Administration and U.S. Fish and 2010, p. 1). Following returns are that resident sockeye and kokanee Wildlife Service Regulatory Jurisdiction expected to again be poor for the next should not be included in listed under the Endangered Species Act 3 years (NWIFC 2010, p. 1). The three anadromous sockeye ESUs in cases factors that likely contributed to this Under a 1974 Memorandum of where the strength and duration of record return are: Understanding between the U.S. Fish reproductive isolation would provide (1) Large number of offspring and Wildlife Service (FWS) and the the opportunity for adaptive divergence resulting from the 6th largest spawning National Marine Fisheries Service (now in sympatry (64 FR 14530; March 25, escapement since 1952 as a result of NOAAF), NOAAF has Act authority 1999). However, NOAAF does include reduced fisheries in 2006; over species that either reside the major those resident/residual sockeye within (2) Favorable changes in coastal ocean portion of their lifetimes in marine ESUs that spawn with, or adjacent to, conditions toward cool temperatures in waters or spend part of their lifetime in sockeye salmon in the same ESU. early 2008 when sockeye that returned estuarine waters if the major portion of NOAAF interprets an ESU as a

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population that is substantially population segment in relation to the separated; where that is not the case, reproductively isolated from conspecific remainder of the species to which it assortative mating by body size usually populations (populations of the same belongs; (2) the significance of the leads to assortative mating by type species), which represents an important population segment to the species to (Gustafson et al. 1997, p. 30) (e.g., component of the evolutionary legacy of which it belongs; and (3) the population sockeye are typically larger and spawn the species. Although Lake Sammamish segment’s conservation status in relation with other sockeye, while kokanee are kokanee are also Pacific salmon, we to the Act’s standards for listing, smaller and spawn with other kokanee). have no authority under NOAAF’s ESU delisting, or reclassification. Our Historically, a heritable tendency to policy, and have evaluated the status of regulations provide further guidance for remain in a lake system rather than the Lake Sammamish kokanee determining whether a particular taxon migrate to sea may have promoted population under the DPS policy. or population is a species for the genetic divergence between kokanee NOAAF acknowledges the DPS policy purposes of the Act: ‘‘The Secretary and sockeye forms as they specialized takes a somewhat different approach shall rely on standard taxonomic for their freshwater and marine habitat. from the ESU policy to identifying distinctions and the biological expertise These genetic differences would be conservation units, which may result, in of the Department and the scientific some cases, in the identification of community concerning the relevant reinforced by size-specific preferences different conservation units. Although taxonomic group’’ (50 CFR 424.11). for breeding sites, accompanied by the the DPS and ESU policies are Kokanee are classified as evolution of isolating mechanisms to consistent, they will not necessarily Oncorhynchus nerka, which is the same reduce interbreeding between the forms result in the same delineation of DPSs taxonomic species as sockeye salmon. (Quinn p. 210). Kokanee in Lake under the Act. The statutory term Because the kokanee life history form Sammamish are geographically isolated ‘‘distinct population segment’’ is not itself is not recognized taxonomically as from other kokanee, and within Lake used in the scientific literature and does a distinct species or subspecies, to Sammamish, kokanee and sockeye are not have a commonly understood determine whether the kokanee further isolated by genetic and meaning therein. NOAAF’s ESU policy population in Lake Sammamish reproductive behavior (Young et al. and the joint DPS policy apply constitutes a DPS, and thus a listable 2004, pp. 72–73). somewhat different criteria, with the entity under the Act, we evaluate this Conclusion: Available data indicate result that their application may lead to population’s discreteness and that the Lake Sammamish population is different outcomes in some cases. The significance with respect to the taxon to geographically and reproductively ESU policy relies on ‘‘substantial which it belongs (in other words, all isolated from other native kokanee and reproductive isolation’’ to delineate a Oncorhynchus nerka (sockeye and sockeye populations, and genetically group of organisms, and emphasizes the kokanee) populations rangewide). and ecologically discrete from other consideration of genetic and other Accordingly, each of the factors relevant information in evaluating the evaluated in this finding have been Oncorhynchus nerka populations, level of reproductive exchange among considered within that context. although a transplanted sockeye potential ESU components. The DPS Under the DPS policy, a population population was introduced during the policy does not rely on reproductive segment of a vertebrate taxon may be 1930s to the 1950s (NOAA 1997, p. ix). isolation to determine ‘‘discreteness,’’ considered discrete if it satisfies either Discreteness Factor 2 Examination but rather on the marked separation of of the following factors: the population segment from other Discreteness Factor 1: The population This factor is not applicable to the populations of the same taxon as a is markedly separated from other discreteness analysis for the Lake consequence of biological factors (61 FR populations of the same taxon as a Sammamish kokanee population, as the 4725; February 7, 1996). In addition, the consequence of physical, physiological, petitioned Oncorhynchus nerka DPS policy also considers the ecological, or behavioral factors population is not delimited by significance of the discrete population (quantitative measures of genetic or international governmental boundaries segment to the taxon to which it morphological discontinuity may within which differences in control of belongs, which may produce a different provide evidence of this separation). exploitation, management of habitat, result than the important evolutionary Discreteness Factor 2: The population conservation status, or regulatory is delimited by international legacy component considered by mechanisms exist that are significant in governmental boundaries within which NOAAF under the ESU policy. light of Section 4(a)(1)(D) of the Act. differences in control of exploitation, Distinct Population Segment Policy management of habitat, conservation Discreteness Analysis Summary Defining a Species Under the Act status, or regulatory mechanisms exist The kokanee population in Lake Section 3(16) of the Act defines that are significant in light of Section Sammamish has been determined to be ‘‘species’’ to include ‘‘any subspecies of 4(a)(1)(D) of the Act. discrete as a result of its marked fish or wildlife or plants, and any Lake Sammamish Kokanee separation from other populations of the distinct population segment of any Discreteness Analysis species of vertebrate fish or wildlife same taxon as a consequence of which interbreeds when mature.’’ Under Discreteness Factor 1 Examination physical, physiological, ecological, or the DPS policy, three elements are Patterns of genetic variation behavioral factors. There are no considered in the decision regarding the demonstrate that the sockeye and international governmental boundaries establishment and classification of a kokanee within lakes are usually more within which differences in control of population of a vertebrate species as a closely related to each other than they exploitation, management of habitat, possible DPS. These are applied are to members of their form in other conservation status, or regulatory similarly for additions to and removal lakes (Foote et al. 1989; Taylor et al. mechanisms exist that are significant in from the Lists of Endangered and 1996 in Quinn 2005 p. 212). Sympatric light of Section 4(a)(1)(D) of the Act. Threatened Wildlife and Plants. These kokanee and sockeye populations are Accordingly, this discreteness criterion elements are: (1) The discreteness of a typically temporally or spatially is not applicable to our evaluation.

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Lake Sammamish Kokanee Significance are characterized by low concentrations stratify in summer with surface Analysis of nutrients, limited plant production, temperatures near 20 degrees Celsius (C) Under the DPS policy, a little accumulation of organic sediment (60 degrees Fahrenheit (F)), and remain determination as to whether the Lake on the bottom, an abundance of mixed without freezing in winter, to Sammamish kokanee population is a dissolved oxygen, and good water lakes in the interior and northern listable entity under the Act must first clarity. Oligotrophic lakes are also latitudes that are ice-covered for at least consider its discreteness and typically located at high elevations in half the year and have summer significance with regard to the interior areas where energetic costs of temperatures barely above 10 degrees C remainder of the taxon, which includes anadromous migration are high (Wood (50 degrees F). Oncorhynchus nerka 1995, pp. 202–203). In addition to Lake occupies lakes that range in elevation all other sockeye salmon and kokanee Sammamish, the two other known from essentially sea level to 2,000 m populations throughout the range of the exceptions are Lake Ozette in (6,550 ft), and in area from 1 to 2,600 biological species. If a population Washington, which has been square kilometers (0.6 to 1,615 square segment is considered discrete under characterized as oligotrophic to miles), which includes coastal lakes one or more of the conditions listed in mesotrophic (or meso-oligotrophic) from Washington to Alaska and lakes in the Service’s DPS policy, its biological (Ritchie and Bourgeois 2010, p. 5), and the interior of the Columbia, Fraser, and and ecological significance is Lake Osoyoos, which straddles the Skeena river systems (Quinn 2005, p. considered in light of Congressional Washington and B.C border in the 173). Anadromous O. nerka do not guidance that the authority to list a DPS interior Columbia Basin, which has occur naturally in Japan, although other be used sparingly, while encouraging been characterized as a mesotrophic populations are distributed among the conservation of genetic diversity. In system (Gustafson et al. 1997, p. 57). several lakes. Native populations occur carrying out this examination, we Although we were unable to find in Akan and Chimikeppu Lakes (Kogura consider available scientific evidence of comprehensive information on et al. 2011, pp. 2–3), and O. nerka also the population segment’s importance to limnology as it relates to lake systems occurs in Lake Toya, a large oligotrophic the taxon to which it belongs. This occupied by O. nerka, within the known lake located in a caldera in the central consideration may include, but is not and studied kokanee lakes, Lake area of Hokkaido, in Northern Japan limited to: (1) Its persistence in an Sammamish is the only mesotrophic, (Sakano et al., 1998, p. 173). Based on ecological setting unusual or unique for easily accessible coastal lake, where our analysis, we are not aware of any the taxon; (2) evidence that its loss energetic costs of migration are scientific evidence suggesting or would result in a significant gap in the minimal, that is known to support a demonstrating that the presence of an O. range of the taxon; (3) evidence that it native kokanee population in the nerka population in a mesotrophic lake is the only surviving natural occurrence coterminous United States. Mesotrophic is beyond the normal range of variability of the taxon that may be more abundant lakes containing Oncorhynchus nerka that would be expected from a species elsewhere as an introduced population populations appear to be rare in coastal that occupies the diversity of habitat outside of its historical range; or (4) British Columbia (Shortreed 2007, p. vi; types where it has been documented, or evidence that the discrete segment Woodruff 2010, pp. 47, 56). We would that this may represent an important differs markedly from other populations also expect mesotrophic lakes that trait from an adaptation/evolutionary of the species in its genetic support kokanee to be rare or absent perspective. characteristics (FR 61 4721; February 7, within the northern portion of the In addition, NOAAF (1997, p. 20) 1996). A population segment needs to species’ range and at higher elevations, states that Oncorhynchus nerka exhibits satisfy only one of these criteria to be since lakes with the lowest productivity the greatest diversity in selection of considered significant. Furthermore, are either at high altitudes or high spawning habitat among the Pacific since the list of criteria is not latitudes (Brylinsky and Mann 1973, p. salmon, and great variation in river exhaustive, other criteria may be used if 2). One research biologist with the entry timing and the duration of holding appropriate. NOAAF Northwest Fishery Science in lakes prior to spawning. The species’ Significance Factor 1: Persistence of Center, commented that most sockeye adaptation to a greater diversity of lake the discrete population segment in an salmon nursery lakes are typically environments for adult spawning and ecological setting unusual or unique for strongly nutrient limited (i.e., juvenile rearing has resulted in the the taxon. oligotrophic), and kokanee are not evolution of complex timing for Significance Factor 1 Examination common in easily accessible coastal incubation, fry emergence, spawning, lakes where the energetic costs of and adult lake entry that often involves (A) The Lake Washington/Lake migration are minimal (Gustafson 2009. intricate patterns of adult and juvenile Sammamish Basin is a large, pers comm.). migration and orientation not seen in interconnected lake system containing Although the presence of the other Oncorhynchus species. two low-elevation mesotrophic lakes petitioned entity in a mesotrophic lake Conclusion: Oncorhynchus nerka (Edmondson 1979, pp. 234–235; Welch appears to be atypical, we do not have exhibiting differing life-history forms et al. 1977, p. 301). Mesotrophic lakes information on the percentage or extent occupy a variety of ecosystems and are characterized by an intermediate of mesotrophic lakes occupied by O. watersheds in the north Pacific from concentration of nutrients, moderate nerka throughout the range of the taxon, southern Kamchatka to Japan in the plant production, some organic and therefore cannot determine whether western Pacific, and from Alaska to the sediment accumulation, some loss of this is actually an unusual or unique Columbia River in North America (Page dissolved oxygen in the lower waters, setting for O. nerka. However, it is well- and Burr 1991, p. 52; Taylor et al. 1996, and moderate water clarity. Other lake documented that the species occupies pp. 402–403). We acknowledge Lake systems that support or have supported lakes with a wide range of thermal Sammamish represents a complex native sockeye populations (and by regimes and other physical attributes ecological setting. However, the association their native kokanee (McPhail 2007, pp. 288, 295; Scott and available information indicates O. nerka populations) are typically oligotrophic Crossman 1973, p. 167; Mullen 1986 pp. occurs in a wide geographical range, in nature (Mullan 1986, pp. 71–73; 71–73; Quinn 2005, p. 171). These and habitat varies with respect to Quinn 2005, p. 171). Oligotrophic lakes include coastal lakes in Washington that continental setting, latitude, elevation,

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and type(s) of waters used to support Since Lake Sammamish is located close to marine waters where the kokanee the species’ physical and biological to marine waters and is historically and form may be dominant over the needs. Given the available information presently capable of accommodating anadromous form of O. nerka across the on the diversity and extent of ecological anadromous migration, the expectation range of the taxon. However, given the settings O. nerka occupies within the would be that this should be a sockeye- available information on the diversity rest of its range, the best scientific dominated system. The fact that and extent of ecological settings of O. information available does not suggest kokanee appears to have been the more nerka throughout the rest of its range, that Lake Sammamish represents a common Oncorhynchus nerka life form there is no information that would unique or unusual setting that may have in the Lake Washington/Lake suggest the apparent dominance of the special significance relative to the taxon Sammamish system historically suggests kokanee life form over the anadromous as a whole. there may have been at least some form in Lake Sammamish (at least since (B) The kokanee life form has partial or periodic barrier to at least the late 19th century) supports historically been more abundant than anadromous sockeye in the past (Young a conclusion that Lake Sammamish the sockeye life form in Lake et al. 2004, p. 1). constitutes a unique or unusual setting Sammamish, although a larger number Comparing Lake Sammamish to other that is significant to the taxon. of the sockeye life form would be nearby water bodies, Lake Whatcom and Significance Factor 2: Evidence that expected because of the relatively easy Lake Ozette are geographically near the loss of the population would result access to marine waters. Reports in the marine waters and support native in a significant gap in the range of the literature are equivocal as to whether kokanee populations; however, there are taxon. sockeye salmon were historically differences. Lake Whatcom is Significance Factor 2 Examination present in the Lake Sammamish basin oligotrophic (Matthews et al. 2002, p. prior to the construction of the Lake 107), and has an outlet that presents a Lake Sammamish kokanee represent 1 Washington Ship Canal, although long-standing natural barrier to of 11 known native kokanee populations kokanee were described as numerous anadromous migration. Lake Ozette, within the southern extent of their (NOAA 1997, pp. 73–75). Hendry (1995) although also near marine waters, is North American range, and currently, in NOAA 1997 (p. 75), stated that meso-oligotrophic and dominated by we believe the best available limited runs of sockeye salmon were sockeye. information identifies 9 extant native probably present at the turn of the Although the dominant presence of kokanee populations that occur in the century in the Lake Washington/Lake kokanee in a system where a greater coterminous United States (Lake Ozette, Sammamish drainage, and that it is abundance of the sockeye life form WA; Lake Sammamish, WA; Lake ‘‘certainly unlikely that large would be expected is notable, this does Whatcom, WA; Chilliwack Lake, WA; populations were present.’’ Young not necessarily lead to a conclusion that Chain Lake, WA; Osoyoos Lake, WA; (2004, p. 1) stated the Lake Sammamish/ Lake Sammamish represents a unique or Stanley Lake, ID; Redfish Lake, ID; and Lake Washington watershed supported unusual ecological setting. Quinn (2005, Alturas Lake, ID). The number of only small populations of sockeye, but pp. 10–11), states that all salmon are kokanee populations in other areas large populations of kokanee in the habitat generalists, and populations within the range of the taxon is less well period from 1890 to 1920. In addition, tend to be very productive (i.e., when known, but there are said to be well the oral history of the Snoqualmie the population is below its carrying over 500 kokanee populations in British Indian Tribe once characterized kokanee capacity, each salmon produces many Columbia (McPhail 2007, p. 295) alone. as being so abundant that Tribal surviving offspring). They spawn and At one time there were kokanee in Lake members could stand in the tributaries rear in bodies of water ranging from tiny Washington as well as three different of Lake Sammamish and scoop up the creeks above waterfalls in the runs of kokanee in Lake Sammamish. ‘‘little red fish’’ in their hands mountains, or streams discharging All other native kokanee that inhabited (Snoqualmie Indian Tribe and Trout directly into saltwater, to large rivers, the Lake Washington Basin are thought Unlimited 2008, p. 10). and from small beaver ponds and to be extinct, and the prevailing As ancestral sockeye populations ephemeral wetlands to the largest lakes evidence indicates that only the winter/ expanded to new river systems, those of the region. They are found in a late-run kokanee in the Lake that could not access the marine number of large rivers as well as in Sammamish Basin remain (Berge and environment on a regular basis evolved thousands of smaller streams. Higgins 2003, p. 33; Jackson 2006, p. 1; into the non anadromous kokanee form Oncorhynchus nerka is the second most Warheit and Bowman 2008, p. 3). (Taylor et al. 1996, pp. 411–414). abundant Pacific salmon species, having Conclusion: The Lake Sammamish Kokanee populations are typically a primary spawning range from the kokanee population is one of three located at high elevations in interior Columbia River to the Kuskokwim River native kokanee populations (Lake areas where energetic costs of in Alaska. In Asia they range from the Sammamish, Lake Whatcom, and anadromous migration are high or Kuril Islands to the area of the Anadyr Chilliwack Lake) that evolved from where productive lakes can support River, but the heart of their distribution sockeye populations within the Puget both types (Wood 1995, pp. 202–203). In is the Kamchatka Peninsula and Sound and the Strait of Georgia Basin areas closer to and with easy access to tributaries of the Bering Sea. They regions. If Lake Sammamish kokanee marine waters, sockeye populations spawn in coastal systems and also were to become extirpated, two other typically dominate and kokanee are not ascent as far as 1,600 km (994 mi) to native kokanee populations would common, since the energetic costs of Redfish Lake, Idaho (Quinn 2005, p. 14). persist from this evolutionary arm of the migration are minimal (Gustafson 2009, We have no information on whether taxon, and there are other native pers comm.), and marine waters are there are any other lake systems that are kokanee populations in the southern much more productive. At higher predominately occupied by the kokanee extent of their North American range, latitudes, productivity (and growing life form that would be expected to be although each of these populations opportunities) is greater at sea than in dominated by sockeye. expresses differences in their geographic freshwater, as is evidenced by the more Conclusion: We have insufficient and biological characteristics. The loss rapid growth of salmon at sea than in information to determine the extent of of Lake Sammamish kokanee, when streams and lakes (Quinn 2005, p. 6). waterbodies with relatively easy access considered in relation to Oncorhynchus

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nerka throughout the remainder of the day Grand Coulee dam, and the Purcell which was first reported at fish species’ range would mean the loss of a lobe that blocked the North Fork, Clark hatcheries in Oregon and Washington in very small geographic portion of the River near Cabinet Gorge on the Idaho- the 1950s. The causative virus now entire range of the taxon, since this Montana border. Postglacial (the time exists in many wild and farmed species occurs in watersheds in the following a glacial period) adaptive salmonid stocks in the Pacific north Pacific from southern Kamchatka evolution occurred multiple times, Northwest region of North America, and to Japan in the western Pacific, and from resulting in native kokanee populations has spread to Europe and some Asian Alaska to the Columbia River in North being genetically more similar to their countries. IHN virus (IHN) affects America (Page and Burr 1991, p. 52; sympatric (i.e., occupying the same rainbow/steelhead trout (O. mykiss), Taylor et al. 1996, pp. 402–403). Due to geographic area without interbreeding) cutthroat trout (Salmo clarki), brown the broad geographic range of O. nerka, sockeye populations than kokanee in trout (Salmo trutta), Atlantic salmon the wide diversity of habitats available other river systems (Taylor et al. 1996, (Salmo salar), and Pacific salmon to the species, and the fact that this pp. 401, 413–414). including chinook (O. tshawytscha), population is one of several O. nerka Conclusion: Lake Sammamish sockeye/kokanee (O. nerka), chum (O. populations within this portion of the kokanee may be 1 of only 11 remaining keta), masou/yamame (O. masou), range, we find the gap in the range native kokanee populations that evolved amago (O. rhodurus), and coho (O. resulting from the loss of the Lake from the southern race of sockeye and kisutch) (Iowa State University, 2007, p. Sammamish population would not be 1 of 3 that evolved in the Puget Sound/ 1). Over 40 million kokanee were significant. Georgia Basin region. Given the introduced into the Sammamish basin Significance Factor 3: Evidence that presumed large number of kokanee from the Lake Whatcom Hatchery the population represents the only populations across the range of between 1940 and 1978 (Young et al. surviving natural occurrence of a taxon Oncorhynchus nerka (e.g., 500 kokanee 2004, p. 65); however, these introduced that may be more abundant elsewhere as populations in British Columbia alone stocks have not been successful. The an introduced population outside of its (McPhail 2007, p. 295)), based on the Lake Sammamish kokanee population historical range. genetic information currently available, remains extant, whereas transplanted the Lake Sammamish kokanee Significance Factor 3 Examination stocks were unable to persist (Young et population does not differ markedly al. 2004, p. 1). The reasons are Since the taxon is widespread, there from other O. nerka populations with unknown, and there has been some are 11 known populations of native respect to the variability beyond the speculation that this could be related to kokanee in the coterminous United species’ norm of distribution, such that a disease resistance function to IHN; States within the historic range, and at they should be considered biologically however, this theory has not been least 500 kokanee populations in B.C., or ecologically significant based on confirmed. This speculation is based on Lake Sammamish kokanee do not genetic characteristics. Although each Young et al. 2004 (p. 3), who stated, represent the only surviving natural O. nerka population likely expresses ‘‘We note that the Lake Washington/ occurrence of the taxon. some degree of genetic distinctiveness Lake Sammamish Basin is an IHN Significance Factor 4: Evidence that because of differing responses to the population differs markedly from positive environment and that Lake evolutionary pressures, Lake Whatcom is IHN free. We speculate that other populations of the species in its Sammamish kokanee do not genetic characteristics. IHN vulnerability might explain the demonstrate any unique or unusual apparent lack of success of the Lake genetic distinctiveness beyond that Significance Factor 4 Examination Whatcom kokanee introductions, which would be expected between other however, confirmation or refutation Relatively large genetic differences populations throughout the range of the would require further study.’’ However, occur among the largest sockeye salmon taxon. When measuring this evidence while these authors speculated as to the stocks in northwestern, coastal against the DPS standard, we are vulnerability of Lake Whatcom kokanee Canadian, and southeastern parts of the required to look for evidence of marked to IHN, it does not follow that Lake species’ range (Wood 1995, p. 197). differentiation of this Lake Sammamish Sammamish kokanee are, therefore, Surveys of genetic variation throughout kokanee population segment compared resistant to, or tolerant of, the disease. the range of Oncorhynchus nerka to other populations of Oncorhynchus We were also unable to find any provide new insights about colonization nerka throughout the range of the taxon. patterns following the last glaciation More importantly, scientific information additional studies regarding disease and the extent of reproductive isolation to indicate that the genetic divergence resistance or disease tolerance of the among spawning locations (Wood 1995, observed in the Lake Sammamish Lake Sammamish kokanee, so this idea p. 196). Evidence from geological kokanee population segment confers a remains merely speculative at this time. studies and the distribution of fitness advantage or otherwise Even assuming that Lake Sammamish freshwater fish assemblages strongly contributes to the biological or kokanee may be resistant to IHN, this suggests that modern sockeye salmon ecological importance of this does not mean disease resistance is populations are derived primarily from population, in relation to the taxon as a unique to kokanee in the Lake a northern race that survived glaciation whole, is lacking. With the additional Washington/Lake Sammamish system. in the Bering Sea area and a southern consideration that the authority to list We were unable to find any information race that survived south of the DPSs be used ‘‘sparingly,’’ we conclude on IHN presence in other lakes within Cordilleran Ice Sheet in the Columbia this population segment of O. nerka the range of Oncorhynchus nerka, so River (Wood et al. 2008, p. 208). This does not meet the significance element were unable to determine whether a 4,000-feet thick (1,219-meters) ice sheet of this factor. presumed resistance or tolerance to IHN expanded southward into Northern (as evidenced by presence of a Washington, Idaho and Montana and Other Potential Significance Factors population of O. nerka in IHN-positive had three main lobes. The Puget lobe Examined lakes) is unusual such that a population that scoured out the Puget Sound, the (A) Disease resistance: Infectious evidencing this disease resistance or Okanogan lobe that blocked the hematopoietic necrosis (IHN) is a tolerance would be significant to the Columbia River at the site of the present serious viral disease of salmonid fish, taxon as a whole.

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Conclusion: Although disease O. nerka populations across the range of Authority resistance or tolerance may be important the species (see sockeye and kokanee The authority for this action is the to the long-term viability of abundance trends above), and the Endangered Species Act of 1973, as Oncorhynchus nerka at some scale, the presence of bimodal run timing in other amended (16 U.S.C. 1531 et seq.). relevant question for this finding is populations, we conclude the presence whether the Lake Sammamish kokanee of multiple run timings in Lake Dated: September 23, 2011. population is significant to the taxon as Sammamish is not significant to the Rowan W. Gould, a whole (i.e., all O. nerka populations taxon. Acting Director, U.S. Fish and Wildlife and life history forms throughout the Service. range of the species). Given that there is DPS Conclusion [FR Doc. 2011–25595 Filed 10–3–11; 8:45 am] no evidence indicating that the Lake On the basis of the best available BILLING CODE 4310–55–P Sammamish kokanee are disease information, we conclude that the Lake resistant or disease tolerant, and that we Sammamish kokanee population were unable to find any information on segment is discrete due to marked DEPARTMENT OF THE INTERIOR IHN presence in other lakes containing separation as a consequence of physical, O. nerka populations in order to ecological, physiological, or behavioral Fish and Wildlife Service determine whether Lake Sammamish is factors according to the 1996 DPS atypical, we conclude that the policy. However, on the basis of the four 50 CFR Part 17 hypothesized disease resistance or significance elements in the 1996 DPS [Docket No. FWS–R3–ES–2010–0034; MO tolerance of the Lake Sammamish policy, we conclude this discrete 92210–0–0008] kokanee population does not meet the population segment is not significant to significance element of the DPS policy. the remainder of the taxon and Endangered and Threatened Wildlife (B) Multiple run spawning timings: therefore, does not qualify as a DPS and Plants; 12-Month Finding on a Multiple run timings allow kokanee and under our 1996 DPS policy. As such, we Petition To List Calopogon other salmonid populations the ability find the Lake Sammamish kokanee oklahomensis as Threatened or to exploit a range of available habitats population is not a listable entity under Endangered and reduce risks to extirpation (e.g., the Act. AGENCY: Fish and Wildlife Service, stochastic events, predation, variable Interior. climate) by diversifying spawning Finding ACTION: distribution over space and time. The In making this finding, we considered Notice of 12-month petition Lake Sammamish/Lake Washington information provided by the petitioners, finding. kokanee population historically had at as well as other information available to SUMMARY: We, the U.S. Fish and least three distinct run timings us concerning the Lake Sammamish Wildlife Service, announce a 12-month expressed in different locations within kokanee population. We have carefully finding on a petition to list Calopogon the basin. The expression of multiple- assessed the best scientific and oklahomensis (Oklahoma grass pink run timings within populations appears commercial information available orchid) under the Endangered Species to be rare across the range of kokanee, regarding the status and threats to the Act of 1973, as amended. After review especially among tributaries (Wood Lake Sammamish kokanee population. of the best available scientific and 2009, pers comm.), although there are at We reviewed the petition and commercial information, we find that least a few other kokanee populations unpublished scientific and commercial listing Calopogon oklahomensis is not that are known to exhibit this trait information. We also consulted with warranted at this time. However, we ask (Shepard 1999). In addition, the Federal and State land managers, and the public to submit to us any new literature indicates that other kokanee scientists having expertise with information that becomes available populations have run timings that occur Oncorhynchus nerka. This 12-month concerning the threats to Calopogon during similar times of the year as do finding reflects and incorporates oklahomensis or its habitat at any time. the run timings of the Lake Sammamish information received from the public DATES: The finding announced in this kokanee (Scott and Crossman 1973, p. following our 90-day finding or document was made on October 4, 2011. 167). With regard to the taxon-wide obtained through consultation or examination, NOAAF (1997, p. 20) ADDRESSES: This finding is available on literature research. the Internet at http:// states that Oncorhynchus nerka exhibits On the basis of that review, we have www.regulations.gov at Docket Number the greatest diversity in selection of determined that the Lake Sammamish FWS–R3–ES–2010–0034. Supporting spawning habitat among the Pacific kokanee does not meet the elements of documentation used in preparing this salmon, and great variation in river our 1996 DPS policy as being a valid finding is available for public entry timing and the duration of holding DPS. Consequently, we find the Lake inspection, by appointment, during in lakes prior to spawning. Bimodal run Sammamish kokanee population is not normal business hours at the U.S. Fish timing (two spawning runs in a single a listable entity under the Act, and that and Wildlife Service, Chicago, Illinois season) for O. nerka populations have listing is not warranted. been demonstrated in the Russian River Ecological Services Field Office, 1250 in Alaska (Nelson 1979, p. 3), the References South Grove, Suite 103, Barrington, IL Klukshu River, Yukon Territory (Fillatre A complete list of all references cited 60010. Please submit any new et al. 2003, p. 1), and Karluk Lake on is available at http:// information, materials, comments, or Kodiak Island, Alaska (Schmidt et al. www.regulations.gov, or upon request questions concerning this finding to the 1998, p. 744). from the Washington Fish and Wildlife above address. Conclusion: Under the DPS policy, we Office (see ADDRESSES). FOR FURTHER INFORMATION CONTACT: Ms. are required to evaluate the Lake Louise Clemency, Field Supervisor, Sammamish kokanee population Author Chicago, Illinois Ecological Services segment’s significance relative to the The primary authors of this document Field Office (see ADDRESSES); by taxon as a whole. Therefore, given the are staff of Region 1, Pacific Region, U.S. telephone at 847–381–2253; or by available information on the number of Fish and Wildlife Service. facsimile at 847–381–2285. Persons who

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use a telecommunications device for the Species Information (Dr. Douglas Goldman) observed several morphological and ecological deaf (TDD) may call the Federal Taxonomy and Species Description Information Relay Service (FIRS) at characteristics, which he believed were 800–877–8339. Calopogon oklahomensis, commonly inconsistent with true C. tuberosus or C. known as the Oklahoma grass pink or barbatus. These characteristics included SUPPLEMENTARY INFORMATION: prairie grass pink, is a terrestrial species corm (a modified underground stem) of orchid (family Orchidaceae) native to Background shape and formation, average leaf width, the United States and primarily leaf length verses inflorescence (a Section 4(b)(3)(B) of the Act (16 occurring in the south-central United branching stem with flowers) length, U.S.C. 1531 et seq.), requires that, for States. It is a member of the genus bud characterization, anthesis (the any petition to revise the Federal Lists Calopogon, a group of terrestrial orchids period from flowering to fruiting), floral of Endangered and Threatened Wildlife known as grass pinks. fragrance, dorsal sepal description, The number of species identified as and Plants that contains substantial lateral sepal description, distal portion belonging to the genus Calopogon has scientific or commercial information of labellum disc (portion of the lower varied since the genus was identified by that listing the species may be petal that is attached to the center of the Linnaeus in 1753 (Correll 1978, p. 167). flower), and stigma (where deposited warranted, we make a finding within 12 The first species of the current genus months of the date of receipt of the pollen germinates) characteristics (Table Calopogon, was identified by Linnaeus 1) (Goldman 1995, pp. 37–39). In petition. In this finding, we will as Limodorum tuberosum in 1753 determine that the petitioned action is: addition, although C. oklahomensis may (Correll 1978, p. 167). In 1788, Walter occur in close geographic proximity to (1) Not warranted, (2) warranted, or (3) originally identified Ophrys barbata, warranted, but the immediate proposal C. tuberosus, they are temporally with Ames (1908) later changing the isolated, as C. oklahomensis flowers at of a regulation implementing the name to Calopogon barbatus, which was different times of the year than C. petitioned action is precluded by other subsequently accepted and conserved tuberosus (Goldman 1995, p. 40). In pending proposals to determine whether (Correll, 1978, p. 167). Calopogon Missouri, C. oklahomensis blooms from multiflorus was first described by species are threatened or endangered, early May to June, whereas C. tuberosus Lindley in 1840 (Correll 1978, p. 169). and expeditious progress is being made blooms from mid-June to early July In 1860, Chapman identified and to add or remove qualified species from (Summers 1987 in Goldman 1995, p. described Calopogon pallidus (Correll the Federal Lists of Endangered and 40). Goldman (1995, p. 40) ascertained 1978, p. 171). By 1888, Limodorum Threatened Wildlife and Plants. Section from herbarium label data that in tuberosum was accepted and given the 4(b)(3)(C) of the Act requires that we eastern Texas and western Louisiana, C. conserved name of Calopogon tuberosus treat a petition for which the requested oklahomensis blooms from March to action is found to be warranted but (L) by Britton, Sterns, and Poggenburg (Jarvis and Cribb 2009, p. 368). In 1933, early May, whereas C. tuberosus blooms precluded as though resubmitted on the Small (pp. 363–399) recognized six from May to June. Calopogon date of such finding, that is, requiring a species of Calopogon based on minor oklahomensis was subsequently subsequent finding to be made within variations, which Correll (1978, p. 167) described, by Goldman, as unique and 12 months. We must publish these 12- believed were difficult to interpret. By distinct from all other species of month findings in the Federal Register. 1950, Correll, taking a more Calopogon, with a large geographic range, many consistent morphological Previous Federal Actions conservative approach, recognized four species of Calopogon: C. barbatus, C. features, and temporal isolation from its On May 28, 2008, we received a multiflorus, C. pallidus, and C. occasional associate, Calopogon petition dated May 22, 2008, from Dr. pulchellus, with two variants of C. tuberosus (Goldman 1995, p. 41). Douglas Goldman of the Harvard pulchellus, the more northern variant, In addition to timing of flower University Herbaria requesting that latifolius, and the more southern emergence and a suite of morphological Calopogon oklahomensis be listed as variant, simpsonii Ames (1904) (Correll features differing from Calopogon threatened or endangered under the Act. 1978, pp. 167–176). The former species, tuberosus and C. barbatus, C. Included in the petition was supporting C. pulchellus, is now considered a oklahomensis has been shown to have information regarding the species’ variant of C. tuberosus, that being, C. unique genetic characteristics. Genetic analysis has shown C. oklahomensis to taxonomy and ecology, historical and tuberosus var. tuberosus. By 1989, it be hexaploid (having six sets of current distribution, present status, and was recognized that Calopogon tuberosus encompassed two variants, chromosomes), where all other taxa actual and potential causes of decline. variant simpsonii (southern variant) and within Calopogon are diploid We acknowledged the receipt of the variant tuberosus (northern variant). (consisting of two sets of chromosomes), petition in a letter to Dr. Douglas The four species, C. barbatus, C. suggesting that this species may be an Goldman, dated September 15, 2008. In multiflorus, C. pallidus, and C. alloploid (number of chromosomes is that letter we also stated that due to tuberosus, were thought to compose the doubled in the hybrid), possibly derived funding constraints in fiscal year 2008, genus Calopogon until Goldman (1995, from ancient hybridization between C. we would not be able to begin p. 37) proposed a fifth species, C. barbatus and C. tuberosus (Goldman processing the petition at that time. oklahomensis. 2000, p. 79). Recent genetic analyses by Funding became available in fiscal Goldman (1995, p. 41) asserts that Goldman et al. (2004a, p. 719), however, year 2010, wherein work began on the morphological and phenological concluded that if hybrid in origin, the 90-day finding. The 90-day finding was variation of the genus Calopogon in the cross is ancient, and it may be prudent published on August 24, 2010 (75 FR midwestern States was not previously to conclude that the origin and affinities 51969). This notice constitutes the 12- recognized by Correll (1978) or Luer of C. oklahomensis remain uncertain month finding on the May 22, 2008, (1975) (Goldman 1995, p. 41) and that (Goldman et al. 2004a, p. 719). Trapnell petition to list Calopogon oklahomensis while examining herbarium specimens et al. (2004, p. 314) conducted as threatened or endangered. from eastern Texas, western Louisiana, additional genetic testing for genetic and northward to central Missouri, he variation among the five species of the

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terrestrial orchid genus Calopogon, with from all other Calopogon (Brown 2006, on the lip (Brown 2006, p. 22; Goldman results indicating that C. oklahomensis p. 22; Goldman 1995, p. 41; Goldman 1995, p. 39). The labellum disk is is the most genetically diverse species of 2002, pp. 601–602), and, therefore, a pinkish with a basal region of short to the five species tested. listable entity under the Act. long yellow hairs, above which there is The review of Calopogon Calopogon oklahomensis is a a triangular region of short, stout, oklahomensis is complete, and the name terrestrial plant growing (6 to 14 inches pinkish hairs, which extend to the is accepted by Govaerts (1999) and (in) (15 to 36 centimeters (cm)) tall labellum apex (terminal end of the Govaerts (2003). Recognition of C. (Brown 2006, p. 22). It has a forked lower petal) (Goldman 1995, p. 39). oklahomensis as the fifth Calopogon corm, with the new corm at the base of species was affirmed in Flora of North the leaf and the inflorescence rapidly Calopogon oklahomensis has a America (Goldman 2002, pp. 601–602), growing distally at the time of anthesis winged column with two soft pollinia (a and reaffirmed by Brown (2006, p. 21; (Goldman 1995, p. 39). It has one or two mass of pollen grains) (Goldman 2000, 2008, p. 177), who describes the genus leaves, which are lanceolate, slender, p. 3). The stigma is flat against the Calopogon as being composed of five and 0.2 to 0.6 in (0.5 to 1.5 cm) wide column surface (Goldman 1995, p. 40), species: C. barbatus, C. multiflorus, C. by 3 to 14 in (7 to 35 cm) long (Brown and the species blooms April pallidus, C. tuberosus, and C. 2006, p. 22; Goldman 1995, p. 37). The throughout May or June (Brown 2006, p. oklahomensis (Brown 2006, p. 21). leaf is almost always as long as or longer 22). Calopogon oklahomensis flowers Currently, Govaerts et al. (2011, entire) than the inflorescence (Goldman 1995, produce little or no nectar and offer no and Kartesz (2011, in press) also p. 39). The flower buds are deeply pollen reward; they attract pollinators recognize C. oklahomensis as a distinct grooved longitudinally, waxy, and shiny using showy yellow and pink lip hairs species. with elongated acuminate apices that resemble a mass of pollen. When an For these reasons, we accept the (narrowing to a point at the tip). The insect lands on the labellum, if it is characterization of Calopogon flower has three to seven non-resupinate heavy enough, the labellum swings oklahomensis as a distinct species of flowers (labellum is uppermost) that are down and the insect’s posterior comes Calopogon, with a large geographic fragrant (smelling of citronella) and into contact with the sticky pollinia range, many consistent morphological open simultaneously, with the color located on the end of the column features, temporal isolation in flower being highly variable, from lilac blue to (Trapnell et al. 2004, p. 308). The tiny, timing from other species in the genus bright magenta pink or, in the form dustlike seeds are wind dispersed Calopogon, and genetic differentiation albiflorus, white. All have a golden crest (Trapnell et al. 2004, p. 308).

TABLE 1—COMPARISON OF 11 CHARACTERS USED TO DISTINGUISH CALOPOGON OKLAHOMENSIS FROM C. TUBEROSUS AND C. BARBATUS, OBTAINED FROM GOLDMAN’S PERSONAL OBSERVATIONS, CORRELL (1978), AND LUER (1972, 1975) (GOLDMAN 1995, P. 39)

Character Calopogon oklahomensis Calopogon tuberosus Calopogon barbatus

Corm ...... Forked ...... Spherical ...... Spherical. New corm forming distally at an- Yes ...... No ...... No. thesis. Average leaf width (range)* ...... 7 mm (0.28 inches) (5–15 mm (10 mm (0.39 inches) (4–37 mm 2 mm (0.08 inches) (1–4 mm (0.20–0.59 inches)). 0.16–1.46 inches)). (0.04–0.16 inches)). Leaf length vs. inflorescence About equal ...... Usually shorter ...... Shorter. length. Buds ...... Grooved longitudinally, acu- Generally smooth, acute or Smooth, acute or apiculate, waxy. minate, very waxy. apiculate, waxy. Anthesis ...... Flowers open in rapid succession Flowers open in slow succession Flowers open in rapid succession. Floral fragrance ...... Yes ...... No ...... No. Dorsal sepal* ...... Lanceolate, average 19 mm × 6 Oblong-elliptical, average 22 mm Oblong-elliptical, average 16 mm mm (0.75 inches × 0.24 × 8 mm (0.87 inches × 0.31 × 5 mm (0.63 inches × 0.20 inches), straight to reflexed inches), straight. inches), straight to reflexed backwards. backwards. Lateral sepals * ...... Acuminate, grooved longitudinally, Apiculate, smooth, straight ...... Apiculate, longitudinally grooved, recurved backwards. recurved backwards. Distal portion of labellum disc ...... Same color as most of flower, tri- White, generally circular region of Same color as most of flower, tri- angular region of short, pink short, white, yellow, or orange angular, region of short, pink hairs. hairs. hairs. Stigma ...... Flat against column surface ...... Most often perpendicular to col- Flat against column surface. umn surface. * Based on 60 herbarium specimens of Calopogon oklahomensis, 60 specimens of C. tuberosus, and 30 specimens of C. barbatus, collected throughout the geographic range of each species.

Distribution and Population Status Goldman (1995, p. 41) based his Minnesota, Mississippi, Missouri, description of the species’ range on Oklahoma, South Carolina, Tennessee, Calopogon oklahomensis was collected specimens in six States Texas, and Wisconsin) (Goldman 2008a, originally thought to be restricted to the (Arkansas, Kansas, Louisiana, Missouri, pp. 2–3). Brown (2006, p. 22) identifies prairies of the south-central States; Oklahoma, and Texas), and the historical range of C. oklahomensis however, herbarium specimens hypothesized that overall, the historical as occurring in only 10 States (Arkansas, (Goldman 1995, pp. 37, 40–41) indicate range covered 17 States (Alabama, Illinois, Iowa, Kansas, Louisiana, that it was previously much more Arkansas, Florida, Georgia, Iowa, Minnesota, Missouri, Oklahoma, Texas, widespread (Brown 2006, p. 22). Illinois, Indiana, Kansas, Louisiana, and Wisconsin) and does not list this

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species as occurring in Florida, South however, the source of this information (Arkansas, Illinois, Iowa, Kansas, Carolina, Georgia, Alabama, Indiana, is also Goldman (2008a). Louisiana, Mississippi, Missouri, Tennessee, or Mississippi. NatureServe Goldman (2008a, pp. 2–3) states that Oklahoma, Tennessee, Texas, and (2011) identifies the historical range of there are 233 historical occurrences Wisconsin (Table 2). This 11-State the species in 14 States (Alabama, from 17 States (Table 2). A thorough historical range, which is based on a Arkansas, Illinois, Iowa, Indiana, review of the available information on review of actual occurrences rather than Kansas, Louisiana, Minnesota, the distribution of Calopogon the generalized range discussion Mississippi, Missouri, Oklahoma, oklahomensis, however, indicates that presented above, is what we used in Tennessee, Texas, and Wisconsin); there are 86 to 90 historical occurrences conducting our assessment of the of C. oklahomensis from 11 States species’ status.

TABLE 2—A COMPARISON OF INFORMATION ON HISTORICAL AND EXTANT OCCURRENCES OF CALOPOGON OKLAHOMENSIS, BASED ON GOLDMAN’S (2008b, P. 3) REVIEW OF HERBARIUM SPECIMENS AS PROVIDED IN THE PETITION AND INFOR- MATION AVAILABLE TO THE SERVICE, PRIMARILY FROM STATE DATABASES

Number of Number of historical Estimated extant Estimated extant State Last observed historical records populations populations (Goldman) records (based on State (Goldman) (based on State (Goldman) databases) databases)

AL * ...... 1887 5 0 0 0 AR ...... 1995 22 25 3 to 5 17 FL * ...... 1882 1 0 0 0 GA * ...... 1943 1 0 0 0 IA ...... 1941 8 3 to 6 0 0 IL ...... 2006? 42 7 1 2 IN * ...... 1933 15 0 0 0 KS ...... 1980 1 1 0 0 LA ...... 1996 22 3 3 to 6 0 MN * ...... 1884 5 0 0 0 MO ...... 1994 16 2 4 to 6 11 MS ...... 2006 4 1 2 to 3 3 OK ...... 2004 53 24 10? 6 SC * ...... ? 1 0 0 0 TN ...... 1939 2 1 0 0 TX ...... 2004 27 12 to 13 1 to 3 1 WI ...... 1987 8 7? 1 1

Total ...... 233 86 to 90 25 to 35 41 * The Service does not consider these States to be within the historical range for the species.

The historical range suggested by oklahomensis as occurring in Georgia Goldman (2008a, p. 3) estimates 25 to Goldman (2008a, p. 6) includes the (Pattavina 2009, pers. comm.), we do 35 extant Calopogon oklahomensis States of Florida and Georgia. Goldman not include Georgia in the range of C. populations from 8 States (Arkansas, (2008a, p. 6) describes one historical oklahomensis. Illinois, Louisiana, Missouri, herbarium specimen of Calopogon There are no confirmed specimens Mississippi, Oklahoma, Texas, and oklahomensis from Florida, dated 1882 from South Carolina for this species Wisconsin) (Table 2). The Service and labeled only as ‘‘Florida’’ for the (Holling 2011, pers. comm.; Pittman cannot confirm Goldman’s information locality. He hypothesizes that it may 2011, pers. comm.); however, there is regarding extant populations of C. have been collected from the western one specimen (probably over 200 years oklahomensis in Louisiana. The Service Florida panhandle (Goldman 2008a, p. old) housed at the herbarium at the has information from Goldman’s 6). This record is questionable because Royal Botanic Gardens, Kew, which is personal collection data (provided as Florida has no other information or marked simply as ‘‘S.C.,’’ but without supplemental information to the records regarding historical or extant information on collector, locality, or petition (Goldman 2008b)) of three occurrences of C. oklahomensis in the date (Goldman 2010, pers. comm.). We specimens from Louisiana dated 1995 to State (Brown 2011, pers. comm.; do not include South Carolina in the 1996. More recent information, Johnson 2011, pers. comm.; Knight current or historical range of Calopogon however, is not available regarding the 2009, pers. comm.; Halupa 2009, pers. oklahomensis because we have no other sites from where these specimens comm.). Based on the lack of records, information of C. oklahomensis as originated. we believe this species is not a occurring in South Carolina (Holling Alabama has no extant occurrences of component of the Florida flora and, 2011, pers. comm.). Calopogon oklahomensis (Everson 2009, therefore, do not include Florida in the We do not have comprehensive pers. comm.; Schotz 2011, pers. comm.). range for this species. survey information for Calopogon Goldman (2008a, p. 5) asserts that this Goldman (2008a, p. 6) states that one oklahomensis. Therefore, we do not species was collected in Alabama a specimen of Calopogon oklahomensis know the full extent of the species’ handful of times in the late 1800s, near was collected in southwestern Georgia distribution or if the distribution has the town of Mount Vernon, but over a by Robert Thorne in 1947. As in the case changed over time. The following few visits to this area in the last 10 of Florida, because we have no other paragraphs outline the distribution and years, the species has not been found, historical or extant records of C. status information that is available. even under favorable conditions.

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Arkansas has 25 documented comm.; 2011c, pers. comm.). The current studies in Missouri on historical occurrences of Calopogon second and third colonies were last population size, success of oklahomensis, of these, 17 are extant surveyed in 2006, with one population reproduction, or other indicators of populations (Witsell 2009, pers. comm.). estimated at 11 to 50 individuals and status (Yatskievych 2009, pers. comm.). Illinois has seven historical the other population estimated at 101 to Oklahoma has 24 historical specimens, which perhaps were 1,000 individuals (Wiggers 2011b, pers. populations of Calopogon oklahomensis originally misidentified as Calopogon comm.; 2011c, pers. comm.). The fourth from 15 counties, with 6 sites having pulchellus and C. tuberosus, then, in Poplar Creek colony size is unknown extant populations, 5 of which occur on 1999, determined to be C. oklahomensis (Wiggers 2011c, pers. comm.). The private land (Hoagland et al. 2004, by Goldman (Phillippe 2010, pers. minimum population size of all the entire; Buthod 2010, pers. comm.). The comm.). Currently, Illinois has two Poplar Creek colonies is estimated at site of the sixth C. oklahomensis extant populations of C. oklahomensis 113 individuals (Wiggers 2011c, pers. population in Oklahoma is owned by (Phillippe et al. 2008, p. 11; Armstrong comm.). the State of Oklahoma and used by the 2010, pers. comm.; Kieninger 2010, In Mississippi, the Clear Creek Department of Corrections as the Jess pers. comm.; Catchpole 2010, pers. population includes two colonies, one Dunn Prison. comm.). of which was last surveyed in 1999, Tennessee acknowledges a single There is one record of Calopogon with a population estimate of 11 to 50 occurrence of Calopogon oklahomensis oklahomensis collected in Lake County, individual plants, and the other colony in the Tennessee Natural Heritage Indiana. It was originally (in 1912) last surveyed in 2004, with a population Program Geographic Information System identified in the Indiana Natural estimate of 1 to 10 individuals (Wiggers (GIS) database. It was last observed in Heritage Database as C. pulchellus, 2011b, pers. comm.; 2011c, pers. 1937, with no details available in the however, it was later (in 1999) comm.). The minimum population size record regarding location or abundance determined to be C. oklahomensis by of all Clear Creek colonies is 12 (Call 2009, pers. comm.). To our Goldman (Phillippe 2010, pers. comm.). individuals (Wiggers 2011c, pers. knowledge, the species has not been Indiana has records of the closely comm.). recorded in Tennessee for more than 20 related congener, C. puchellus, that The Pearces Creek population in years, and is possibly extirpated from were collected prior to C. oklahomensis Mississippi consists of two colonies of the State (Call 2009, pers. comm.). being described as a unique species Calopogon oklahomensis, both with a Texas has historical records of 12 to (Deam 1940, p. 347; King 2009, pers. population estimate of 1 to 10 13 specimens of C. oklahomensis from comm.). We have no information of individuals, with one colony last 12 counties, including information from extant C. oklahomensis populations in surveyed in 1999 and the other last the University of Texas herbarium Indiana. surveyed in 2004 (Wiggers 2011b, pers. database, which lists only 5 specimens There are no known extant comm.; 2011c, pers. comm.). The collected from 1927 to 1965 (Poole populations of Calopogon oklahomensis minimum population size of both 2008, pers. comm.). It is believed that in Iowa. Our information indicates that Pearces Creek colonies is two some of the sites from where the only historical records exist, but we do individuals (Wiggers 2011c, pers. specimens were collected may no longer not know how many historical records comm.). The total Camp Shelby be extant (Poole 2008, pers. comm.; Best exist. The species is believed to be population estimate of C. oklahomensis 2009, pers. comm.). The most recent extirpated in the State (Pearson 2009, is 127 individuals; however, this is only specimen from Brazos County, Texas, pers. comm.). a rough estimate, as current population was last observed by Goldman in 2004 Kansas has one historical record of counts are unavailable (Wiggers 2011b, (Goldman 2008a, p. 9). Although this Calopogon oklahomensis from Cherokee pers. comm.). Within Camp Shelby, species is not tracked in Texas, we County, dated May 1980 (Freeman 2011, there may be other areas of C. assume presence of C. oklahomensis at pers. comm.). This specimen was oklahomensis located within an ‘‘impact the Brazos County site because it was annotated as C. oklahomensis by area’’ (an area containing unexploded last observed in 2004, although no Goldman in 1999 (Freeman 2008, pers. ordnance), which has been protected further surveys have taken place since comm.). This site and other prairie hay from active training, draining, and then. We acknowledge that there may be meadows in the county have been clearing since World War I (Wiggers other extant sites of C. oklahomensis in searched for C. oklahomensis over the 2011a, pers. comm.; Lyman 2011a, pers. Texas, but because this species is not past 30 years, with no populations of comm.). Surveys have not been tracked in Texas, we have no this species located (Freeman 2011, conducted in this ‘‘impact area’’ due to information other than what is stated pers. comm.). its restricted access (Wiggers 2011b, above. Mississippi has three known extant pers. comm.). In Wisconsin, records indicate that populations of Calopogon oklahomensis In Missouri, prior to describing Calopogon oklahomensis was located at the Camp Shelby Joint Forces Calopogon oklahomensis as distinct historically known from seven sites in Training Center (Camp Shelby), a from C. tuberosus, C. oklahomensis was five counties between 1872 and 2005 National Guard installation operating not tracked in the Missouri Natural (Anderson 2010a, pers. comm.; under a special use permit on U.S. Heritage Database. Once C. tuberosus Anderson 2010b, pers. comm.). Forest Service land. These three was split into the two species, Missouri Currently, Greene Prairie at the populations are separated by more than began tracking only the rarer and range- University of Wisconsin-Madison 1 mile (1.6 kilometers (km)) each and limited C. tuberosus (Yatskievych 2009, Arboretum supports perhaps the only occur in three separate watersheds; pers. comm.; Kruse 2010, pers. comm.); extant population of C. oklahomensis in therefore, they are considered separate however, the Missouri Botanical Garden Wisconsin (Anderson 2010a, pers. populations (Wiggers 2011b, pers. indicates that Missouri has at least 11 comm.). The plants at Greene Prairie comm.). The Poplar Creek population sites with extant populations of C. originated from a site in Sauk County includes four separate colonies. One oklahomensis (Yatskievych 2009, pers. near Sauk City, but the exact location is colony was last surveyed in 2004, with comm.). At least 10 of the 11 extant sites unknown. Wisconsin’s historical an estimated population of 1 to 10 occur on public lands that are managed collections do not contain specific site individuals (Wiggers 2011b, pers. as native prairie, however, there are no information other than they originated

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from Dane, Grant, Monroe, Sauk, and Habitat some drying, but if drought or other Waukesha Counties (Anderson 2010a, Calopogon oklahomensis inhabits a disturbance strikes while they are pers. comm.; Anderson 2010b, pers. variety of habitats, including moist to forming new leaves or flowering, they comm.). Although the Arboretum seasonally dry-mesic prairies; tallgrass can be severely damaged or killed. The population is not naturally occurring, it and coastal prairies; prairie- second growing point, by initiating up is considered a self-sustaining haymeadows; upland prairies; savannas; to a few months later when introduction and relocation, which is open woodlands (e.g., post oak- environmental conditions may have valuable for biodiversity conservation blackjack oak woodlands); hillside improved, seems to be an adaptation to (O’Connor 2011, pers. comm.). seepage bogs; edges of bogs; and survive springtime drought or other disturbance such as fires or grazing The Minnesota Department of Natural occasionally pine plantations, acidic (Goldman 2008a, p. 5). Most other Resource’s Rare Features Database wet barrens, or claypan savannas vascular plants survive such contains no records for this species (Goldman 1995, p. 40; Brown 2006, p. disturbance by resprouting from (Delphey 2009, pers. comm.). 22). The species is not found in the multiple tiny, dormant buds, or forming wetter habitats preferred by most of the Based on the information described new buds. Therefore, Calopogon may be other species in the genus (Goldman above regarding locations of extant more vulnerable to local extirpation 1995, p. 40; Brown 2006, p. 22; populations, we believe the current because of the limitation of having only Goldman 2008, p. 2). It is also found in range of Calopogon oklahomensis two growing points (Goldman 2008a, prairie remnants such as those beside includes the seven States of Arkansas, p. 5). Illinois, Mississippi, Missouri, railroads, as well as other mowed Oklahoma, Texas, and Wisconsin. meadows, savannas (e.g., longleaf pine Summary of Information Pertaining to The State Natural Heritage programs (Pinus palustris) savannas), and wetland the Five Factors and NatureServe (NatureServe 2010c, p. savanna borders (NatureServe 2010b, p. Section 4 of the Act (16 U.S.C. 1533) 3) rank Calopogon oklahomensis as S1 10). The upland prairies often contain and implementing regulations (50 CFR in Illinois, Mississippi, and Texas. The ‘‘pimple mounds’’ (naturally occurring part 424) set forth procedures for adding S1 designation indicates the species is low, flattened, circular to oval, species to, removing species from, or considered critically imperiled because domelike, mounds composed of loose, reclassifying species on the Federal of extreme rarity (5 or fewer occurrences sandy loam or loamy sand lying either Lists of Endangered and Threatened or less than 1,000 individuals) or on a more or less flat or slightly, but Wildlife and Plants. Under section because of extreme vulnerability to noticeably depressed, clayey B horizon 4(a)(1) of the Act, a species may be extinction due to some natural or (subsoil layer)). In Arkansas, Missouri, determined to be endangered or human-made factor. The Arkansas and and Oklahoma, the species occupies threatened based on any of the Oklahoma State Natural Heritage moist to seasonally dry-mesic prairies following five factors: Programs rank C. oklahomensis and high-quality hay meadow (A) The present or threatened populations in Arkansas and Oklahoma associated with pimple mounds destruction, modification, or as S2, meaning the species is considered (Goldman 2008a, p. 8). curtailment of its habitat or range; imperiled because of rarity (6 to 20 Biology (B) Overutilization for commercial, occurrences of less than 3,000 recreational, scientific, or educational Calopogon oklahomensis occurs individuals) or because of vulnerability purposes; sporadically at known locations, with to extinction due to some natural or (C) Disease or predation; the number of flowering plants varying man-made factor (NatureServe 2010c, p. (D) The inadequacy of existing dramatically from year to year. The 3). In Wisconsin, the State Natural regulatory mechanisms; or number of flowering plants may depend (E) Other natural or manmade factors Heritage program ranks C. oklahomensis on management practices; for example, affecting its continued existence. as SH, meaning the species is possibly abundance of C. oklahomensis increases In making this finding, information extirpated in that State (NatureServe significantly after a fire has occurred pertaining to Calopogon oklahomensis 2010c. p. 3). These State heritage (Goldman 2008a, p. 10). Calopogon in relation to the five factors provided program rankings are not legal oklahomensis appears to thrive under in section 4(a)(1) of the Act is discussed designations and do not confer State relatively frequent fires (every 1 to 3 below. In considering what factors regulatory protection to this species. years), particularly dormant-season might constitute threats, we must look This species is either not State ranked burns; late-season haymeadow mowing, beyond the mere exposure of the species or is under review in the States of Iowa, where most or all of the above-ground to the factor to determine whether the Minnesota, and Missouri (NatureServe vegetation is removed once every 1 to 2 species responds to the factor in a way 2010c). In Missouri, the species is not years, with no thatch left behind; and that causes actual impacts to the tracked by the State; however, status light grazing (Osborne 2010, pers. species. If there is exposure to a factor, surveys for Calopogon oklahomensis are comm.). The species also appears to but no response, or only a positive being conducted in 2011 (Yatskievych respond favorably to summer haying response, that factor is not a threat. If 2009, pers. comm.; 2011, pers. comm.). (late June or July) on prairie remnants there is exposure and the species Based on the available information, as managed as hayfields (Osborne 2010, responds negatively, the factor may be summarized above, we believe the pers. comm.). a threat and we then attempt to historical range of Calopogon Goldman (2008a, pp. 4–5) describes determine how significant a threat it is. oklahomensis includes 11 States the genus Calopogon as having two If the threat is significant, it may drive (Arkansas, Iowa, Illinois, Kansas, growing points, which means that the or contribute to the risk of extinction of Louisiana, Mississippi, Missouri, plant has two chances for reproductive the species such that the species Oklahoma, Tennessee, Texas, and success in a given year. He has observed warrants listing as threatened or Wisconsin), and the current range that if both growing points initiate, they endangered as those terms are defined includes 7 States (Arkansas, Illinois, do so at different times, one earlier in by the Act. This does not necessarily Missouri, Oklahoma, Mississippi, Texas, the season and one slightly later. When require empirical proof of a threat. The and Wisconsin). dormant, Calopogon corms can survive combination of exposure and some

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corroborating evidence of how the destruction by various measures, as oklahomensis blooms, and the Railroad species is likely impacted could suffice. further described below. In Arkansas, 9 Prairie was surveyed in 2009, with 3 C. The mere identification of factors that of the 17 extant occurrences of C. oklahomensis plants found (ANHC could impact a species negatively is not oklahomensis occur in high-quality, 2011). sufficient to compel a finding that unplowed tallgrass prairie remnants One Calopogon oklahomensis listing is appropriate; we require (Leone 2011, pers. comm.; Witsell 2010, population in Arkansas occurs on the evidence that these factors are operative pers. comm.; Osborne 2010, pers. Fort Chaffee Maneuver Training Center threats that act on the species to the comm.), which are currently protected (Fort Chaffee). Management specifically point that the species meets the and managed on 9 State Natural Areas for C. oklahomensis does not occur at definition of threatened or endangered in five counties. The Arkansas Natural Fort Chaffee; however, Fort Chaffee has under the Act. Heritage Commission (ANHC) is the largest known population of the In making our 12-month finding on charged with the responsibility of federally endangered American burying the petition to list Calopogon protecting the best of the last remaining beetle (Nicrophorus americanus) and is oklahomensis, we considered and vestiges of the State’s natural implementing a ‘‘Conservation Plan for evaluated the best available scientific communities through its System of the American Burying Beetle’’ (CPABB and commercial information. Natural Areas. Natural Areas are lands 2010) (Leone 2011, pers. comm.). The Factor A. The Present or Threatened specifically managed to preserve, and goal of the Conservation Plan is to Destruction, Modification, or sometimes restore, rare natural maintain existing populations of the Curtailment of Its Habitat or Range communities. These nine State Natural American burying beetle, with Areas have specific ‘‘conservation sustainable habitat. American burying Some habitats of Calopogon visions’’ that guide site management in beetles require large tracts of open oak oklahomensis, such as tallgrass prairie, maintaining native prairie communities woodland and prairie, some of which remnant prairie, prairie-haymeadow, (ANHC 2010, pp. 10–88). In addition, and mowed meadow, have historically are also occupied by C. oklahomensis at ANHC rules and regulations prohibit the suffered destruction across their entire Fort Chaffee. The Conservation Plan collection or removal of plants range through development, plowing, outlines a strategy that limits long-term (including fruits, nuts, or edible plant lowering of the water table, fire and short-term habitat loss, parts), animals, fungi, rocks, minerals, suppression, construction, and fragmentation, and degradation to the fossils, archaeological artifacts, soil, conversion to nonnative grasses. greatest extent possible (CPABB 2010, p. downed wood, or any other natural Appropriate management for these 31). Another strategy in the material, alive or dead (ANHC 2010, habitats (typically burning or haying) to Conservation Plan uses fire as a p. 1). Although these ‘‘conservation prevent the encroachment of woody management tool and evaluates the vegetation and nonnative species is visions’’ do not specifically address effects that fire has on the habitat crucial for the continued existence of management for C. oklahomensis, they (CPABB 2010, p. 36). Such fire prairie-dependent species within these include appropriate management for the management is also beneficial to C. habitats, including C. oklahomensis. continued existence of C. oklahomensis oklahomensis habitat (Goldman 2008a, Because these habitats are the preferred at these sites, through burning or haying p. 10). habitat of C. oklahomensis, and because to prevent the encroachment of woody Because the Conservation Plan proper management of prairie habitat on vegetation and nonnative species. manages for American burying beetle public land cannot be ensured, and is Of the 9 extant Calopogon habitat, including prairie, its even less ensured on private land, it is oklahomensis populations within implementation also will benefit reasonable to conclude that overall Arkansas State Natural Areas, C. Calopogon oklahomensis, which occurs habitat of C. oklahomensis has been oklahomensis was last observed in 2002 in that prairie habitat. Although the modified and destroyed in the past, and at Baker Prairie with 75 to 100 plants in Conservation Plan does not specifically could foreseeably continue into the bloom, in Searles Prairie in 2003 with address C. oklahomensis, this plan future. However, this threat does not at least 35 plants in bloom, Chesney includes appropriate management tools rise to the level where listing C. Prairie in 2003 had several hundred C. to manage for the continued existence of oklahomensis as threatened or oklahomensis plants in bloom, and C. oklahomensis at this site. endangered is warranted, as discussed Cherokee Prairie had several hundred to Arkansas has seven additional below. at least 1,000 plants in 2003 (Arkansas Calopogon oklahomensis populations There are 41 extant sites supporting Natural Heritage Commission (ANHC) that occur on private land (Table 3), of populations of Calopogon oklahomensis 2011). In 2008, three other C. which four are managed as hayfield, two within the 7-State range (Arkansas, oklahomensis populations surveyed at are managed for prairie, and one is Illinois, Mississippi, Missouri, three different Natural Areas (Downs mowed (Leone 2011, pers. comm.). Oklahoma, Texas, and Wisconsin) of the Prairie, Konecny Prairie, and Roth These seven populations are not species (Table 3). Many of the remaining Prairie) had 5, 12, and more than 50 currently protected from conversion to populations of C. oklahomensis occur blooming plants, respectively (ANHC other uses, and habitat destruction or within high-quality habitat, which is 2011). The H.E. Flanagan Prairie, modification may be a threat to these C. protected from further modification and surveyed in 2007, had hundreds of C. oklahomensis populations.

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TABLE 3—EXTANT CALOPOGON OKLAHOMENSIS POPULATION INFORMATION BY STATE

Est. extant Site/location NA Current habitat management plan Protection State pops. = Natural Area Land ownership and future plans status Threats

AR ...... 1 Cherokee Prairie AR Natural Herit- The conservation vision is to re- Yes. NA. age Commis- store and protect biological di- sion. versity representative of tallgrass prairies of the western Arkansas Valley by maintaining natural ecosystem processes. AR ...... 1 Chesney Prairie AR Natural Herit- The conservation vision is to re- Yes. NA. age Commis- store and protect biological di- sion. versity representative of North- west Arkansas prairies by main- taining natural ecosystem proc- esses. AR ...... 1 Downs Prairie AR Natural Herit- The conservation vision is to main- Yes ...... Factor B (poach- NA. age Commis- tain representative communities ing at one sion. and species related to the State Natural landform, hydrology, fire, and Area). other ecosystem processes of the Grand Prairie. AR ...... 1 H. E. Flanagan AR Natural Herit- The conservation vision is to re- Yes. Prairie NA. age Commis- store and protect the biological sion. diversity representative of tallgrass prairies of the western Arkansas Valley by maintaining natural ecosystem processes. AR ...... 1 Konecny Prairie AR Natural Herit- The conservation vision is to main- Yes. NA. age Commis- tain the integrity of this remnant sion. of tallgrass prairie community representative of the vegetation and biota of the Grand Prairie. AR ...... 1 Railroad Prairie AR Natural Herit- The conservation vision is to main- Yes. NA. age Commis- tain a representative transect of sion. communities and species related to the landform, hydrology, fire and other ecosystem processes of the Grand Prairie of eastern Arkansas. AR ...... 1 Roth Prairie NA AR Natural Herit- The conservation vision is to work Yes. age Commis- in conjunction with Arkansas sion. State University to maintain the viability and associated biologi- cal diversity of a remnant tallgrass prairie in the Grand Prairie of eastern Arkansas. AR ...... 1 Searles Prairie AR Natural Herit- The conservation vision is to pro- Yes. NA. age Commis- tect the biological diversity char- sion. acteristic of a tallgrass prairie remnant on the Springfield Pla- teau of the Ozark Mountains. AR ...... 1 Baker Prairie NA AR Natural Herit- The conservation vision is to main- Yes. age Commis- tain a mosaic of prairie commu- sion and The nities and associated ecological Nature Conser- diversity buffered from the vancy (TNC). stresses of nearby development. C. oklahomensis falls on a tract owned by TNC. AR ...... 1 Ft. Chaffee Mili- Department of This site has an Integrated Natural Yes. tary Base. Defense. Resource Management Plan and an American burying beetle (ABB) Conservation Plan. The goal of the ABB plan is to main- tain existing populations with sustainable habitat. ABBs re- quire large tracts of open oak woodland and prairie. AR ...... 1 Gray ...... Private ...... Managed as prairie ...... No ...... Factor A (No land protection status). AR ...... 1 Crossett Airport.. Private ...... Mowed ...... No ...... Factor A (No land protection status).

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TABLE 3—EXTANT CALOPOGON OKLAHOMENSIS POPULATION INFORMATION BY STATE—Continued

Est. extant Site/location NA Current habitat management plan Protection State pops. = Natural Area Land ownership and future plans status Threats

AR ...... 1 Burt Prairie ...... Private ...... Managed as hayfield ...... No ...... Factor A (No land protection status). AR ...... 1 McFarren ...... Private ...... Managed as hayfield ...... No ...... Factor A (No land protection status). AR ...... 1 Stump ...... Private ...... Managed as hayfield ...... No ...... Factor A (No land protection status). AR ...... 1 Halijan ...... Private ...... Managed as hayfield ...... No ...... Factor A (No land protection status). AR ...... 1 Weber Prairie ..... Private ...... Managed as hayfield ...... No ...... Factor A (No land protection status). IL ...... 1 Hitt’s Siding Prai- ...... Managed by the Nature Preserves Yes ...... Factor C (preda- rie Nature Pre- with regular burns, and control tion). serve. of exotic species (woody and herbaceous). IL ...... 1 Braidwood Na- ...... Managed by the Forest Preserve Yes. ture Preserve. District of Will County with reg- ular burns, and control of exotic species (woody and herba- ceous). MO ...... 8 ...... 2 to 3 sites Managed by MO Department of Yes. owned by TNC. Conservation for prairie habitat. MO ...... 2 Coyne Prairie ..... MO Prairie Foun- Managed for prairie habitat ...... Yes. dation. MO ...... 1 ...... Private ...... No management plan in effect ...... No ...... Factor A (No land protection status; lack of management). MS ...... 3 Camp Shelby U.S. Forest Serv- No known management plan in ef- Yes. Joint Forces ice/Dept. of fect, however portions of these Training Cen- Defense with populations receive incidental ter. special use protection because they are lo- permit. cated within a 165 foot buffer for the federally endangered Isoetes louisianensis (Louisiana quillwort). OK ...... 5 ...... Private ...... No known management plans in No ...... Factor A (No effect. land protection status; devel- opment and/or conversion to fescue for grazing use). OK ...... 1 ...... State of Okla- No known management plans in ? homa/Dept. of effect. Corrections. TX ...... 1 College Station, City owned park No known management plan in ef- No ...... Factor A (No Brazos County. fect. land protection status; devel- opment; lack of appropriate management). WI ...... 1 Greene Prairie ... University of Wis- Managed for prairie habitat ...... Yes. consin Arbo- retum.

Total ...... 41

Illinois has two extant Calopogon Nature Preserve is the strongest preserve its natural state and to oklahomensis populations, which occur protection given to land in Illinois, and perpetuate natural conditions. Illinois within designated Illinois Nature provides permanent protection. The Nature Preserves are managed for native Preserves (Table 3). This designation landowner retains custody of the plant communities. This type of affords land protection only to high- property, but voluntarily restricts future management is appropriate for the quality natural areas. Dedication as a uses of the land in perpetuity to continued existence of C. oklahomensis

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at these sites, as the species occurs records of the species from the last 30 because they occur on private land. The within native prairie communities. years; however, there are currently six private land, as currently managed, does In Mississippi, all three extant extant sites of Calopogon oklahomensis not afford the species any land Calopogon oklahomensis populations in Oklahoma (Table 3) (Buthod 2010, protection status or certainty on future occur on U.S. Forest Service (USFS) pers. comm.) Buthod (2010, pers. land use, nor does it provide an land (Table 3), with a special use permit comm.) indicates that portions of C. obligation for management, such as issued to the Camp Shelby. Under the oklahomensis habitat in Oklahoma are burning or mowing, conducive to the Act, the USFS must ensure that being converted to fescue and being continued existence of C. oklahomensis. activities they implement, fund, or used for grazing, as five of the six extant In Texas, there is one extant permit are not likely to jeopardize the populations are on private land. The site population of C. oklahomensis located continued existence of a listed species. of the sixth C. oklahomensis population in Brazos County, which exists in a city- Federal agencies are also instructed to in Oklahoma is owned by the State of owned park near College Station, Texas implement programs for the Oklahoma and used by the Department (Goldman 2008a, p. 9). We have no conservation of listed species. Portions of Corrections (Table 3) as the Jess Dunn information on the management of the of two of the C. oklahomensis Prison. Current information indicates site other than Goldman (2008a, p. 9) populations (Poplar Creek and Clear that the prison grounds have no native believes the site is not burned, even Creek) in Mississippi and on USFS land grass pasture and are actively hayed and occasionally, and, therefore, is receive incidental protection from growing fescue (Frye 2011, pers. experiencing tree and shrub future forest clearing and development comm.). In 2009 and 2010, personnel encroachment. because they are located within the 165- from the Oklahoma Biological Survey In Wisconsin, Calopogon foot (ft) (50-meter (m)) buffer of the and the Oklahoma Natural Heritage oklahomensis occurs within the federally endangered Isoetes collected information on the status of University of Wisconsin Arboretum’s louisianensis (Louisiana quillwort) extant C. oklahomensis populations on Greene Prairie. Greene Prairie is not (Lyman 2011, pers. comm.; Wiggers private land in Oklahoma (Buthod 2010, specifically managed for C. 2011b, pers. comm.). This buffer was pers. comm.). Two populations of C. oklahomensis, but it is managed to established in the Federal recovery plan oklahomensis exist in Bryan County, maintain native prairie communities, for I. louisianensis and includes Oklahoma. One of those population’s which is the preferred habitat of C. restricted timber harvest and riparian sites is described as having native oklahomensis. zone protection to ensure that habitat prairie hay meadow elements, but C. Summary of Factor A conditions are not altered, such as oklahomensis could not be located at changes in ambient light, increase in this site (Buthod 2011, pers. comm.). The destruction and modification of sediment load from runoff, or alteration This site is on the outskirts of Durant, Calopogon oklahomensis habitat, of stream flow from debris deposition Oklahoma, where the land is currently specifically tallgrass prairie, remnant (USFWS 1996, p. 18). Because these not in use, but exhibits evidence of prairie, prairie-haymeadow, and mowed populations of C. oklahomensis occur disturbance from pipeline construction, meadow, has historically occurred within the 165-ft (50-m) buffer for I. and is expected to be developed for rangewide. Furthermore, the destruction louisianensis, the protections in place commercial or private use (Buthod and modification of some types of C. for the quillwort also protect those 2011, pers. comm.). The second C. oklahomensis habitat (tallgrass prairie, portions of the Poplar Creek and Clear oklahomensis population in Bryan remnant prairie, prairie haymeadow, Creek populations of C. oklahomensis County, Oklahoma, was surveyed in and mowed meadow) currently (FEIS 2008). May 2010. It has some native prairie hay continues rangewide. However, of the Missouri has experienced declines in meadow elements, but is used for hay. 41 extant C. oklahomensis populations, prairie habitat (less than 0.5 percent of Calopogon oklahomensis could not be 26 are on land that is protected, and original prairie acreage remains), located at that site in 2010 (Buthod although those sites may not be possibly resulting in Calopogon 2011, pers. comm.). managed specifically for C. oklahomensis being uncommon in this Two other Calopogon oklahomensis oklahomensis, the management focuses State. At least 10 of the 11 extant sites populations occur in LeFlore County, on the continued existence of native in Missouri occur on public lands Oklahoma. Surveys conducted in May prairie communities, which benefits C. managed as native prairie (Table 3) 2009 indicated 20 plants of C. oklahomensis as its preferred habitat is (Yatskievych 2009, pers. comm.). oklahomensis at one LeFlore County native prairie communities. Therefore, Although C. oklahomensis is considered site, which is mowed for hay (Buthod we believe this threat may only be uncommon in Missouri, it is not 2011, pers. comm.). The other site in applicable to 15 of the 41 extant considered so rare as to be tracked. LeFlore County had one C. populations in 4 (Arkansas, Oklahoma, Therefore, population status studies in oklahomensis plant observed in native Missouri, and Texas) of the 7 States Missouri have not been conducted. Even prairie hay meadow with mima mounds where the species currently occurs so, Yatskievych (2009, pers. comm.) (natural domelike soil mounds) (Buthod (Table 3). believes the existing sites are reasonably 2011, pers. comm.). Of the 15 extant populations that may secure. Kruse (2010, pers. comm.) The fifth Calopogon oklahomensis be threatened by destruction or believes that management of public population in Oklahoma that is on modification of habitat, 14 populations prairies will ensure the stable and private land is in Muskogee County. occur on private land with no land continued existence of Missouri’s Over 50 stems of C. oklahomensis (80 protection status, and we have no populations of C. oklahomensis (Kruse percent in bloom) were seen in May information on the land protection 2010, pers. comm.). This species is 2009 (Buthod 2011, pers. comm.). The status for one other population that reported from a number of prairie site is mowed for hay and also has mima occurs on land owned by the State of preserves in southwestern Missouri, and mounds. Oklahoma Department of Corrections. likely is more secure in Missouri than The destruction, modification, or The 14 populations that occur on any other State (Goldman 2008a, p. 3). curtailment of Calopogon oklahomensis private land, and that are documented Goldman (2008a, p. 8) believes habitat may be a threat for at least five as having no land protection status, may Oklahoma had the greatest number of of Oklahoma’s six extant populations be threatened by destruction or

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modification of habitat from drainage, We have no other information sale plants or plant products of clearing, plowing, development, and regarding overutilization of this species endangered species. In addition, lack of management, including the for commercial, recreational, scientific, Illinois’s two extant Calopogon conversion to fescue for grazing (Table or educational purposes. Because oklahomensis sites occur on dedicated 3). In Arkansas, where 7 of those 14 poaching of plants is known to have Nature Preserve land, which affords the populations occur, 4 sites are managed occurred at only 1 extant Calopogon species additional protections. Only as hayfield, 2 as prairie, and 1 is oklahomensis population and does not high-quality natural areas qualify for mowed. The management of these seven appear to have adversely impacted that this land protection status. Dedication extant Calopogon oklahomensis population, poaching does not as a Nature Preserve is the strongest populations on private land may be constitute a threat to the species protection that can be given to land in adequate to maintain their continued throughout its range. In summary, a Illinois, and provides permanent existence. review of the best available information protection. The landowner retains Fourteen populations of Calopogon indicates that C. oklahomensis is not custody of the property, but voluntarily oklahomensis occur on private land, threatened by overutilization for restricts future uses of the land in which are not protected from commercial, recreational, scientific, or perpetuity to preserve its natural state destruction or modification of habitat. educational purposes throughout its and to perpetuate natural conditions. Habitat destruction and modification, range. In the State of Tennessee, Calopogon however, have not been linked to Factor C. Disease or Predation oklahomensis is considered endangered widespread declines throughout the and possibly extirpated, as it has not Disease and herbivory by insects, range of the species. The majority of C. been seen in the State for the past 20 wildlife, or livestock was documented oklahomensis populations (26 years. It is possible that C. oklahomensis for Calopogon oklahomensis at only one populations) occur on protected, public may no longer occur in Tennessee, location. At Hitt’s Siding Prairie Nature however, if it is determined that the land that is managed for native plant Preserve, the State of Illinois has communities. These 26 protected species still persists in Tennessee, documented deer browse on the species under Tennessee Code Annotated 70–8– populations occur in 5 (Arkansas, and seed capsule destruction by weevils Mississippi, Missouri, Illinois, and 309, it is a violation for any person, (Masi 2010, pers. comm.). We do not other than the landowner, lessee, or Wisconsin) of the 7 States within the know how widespread this herbivory species’ current range. Furthermore, other person entitled to possession, or may be or if it resulted in detrimental the manager, in the case of publicly although the 14 populations that occur effects on C. oklahomensis as deer and on private land are not specifically owned land, or a person with the weevils naturally feed on many plant written permission of the landowner or protected from habitat destruction, we species. We have no other evidence of have no information indicating that manager, to knowingly uproot, dig, take, unnatural levels of predation for this remove, damage, destroy, possess, or these 14 populations are expected to be species, and we do not have any destroyed in the future. Therefore, a otherwise disturb for any purpose any information indicating that disease endangered species (Tenn. Code Ann. review of the best available information impacts C. oklahomensis. In summary, a indicates that although some 2011). review of the best available information Despite the lack of regulatory populations of C. oklahomensis may be indicates that C. oklahomensis is not threatened by habitat destruction or mechanisms to protect Calopogon threatened by disease or predation oklahomensis in most States, we found modification, the continued existence of throughout its range. the species is not threatened throughout that there are no threats that are placing all of its range by the present or Factor D. The Inadequacy of Existing the species at risk (Factors A, B, C, and threatened destruction, modification, or Regulatory Mechanisms E) that require regulatory mechanisms to curtailment of its habitat or range, or There are no Federal laws that protect the species. Therefore, we do not likely to become so. specifically protect Calopogon consider the inadequacy of regulatory mechanisms a threat to this species. We Factor B. Overutilization for oklahomensis. At the State level, of the seven States within the current range of conclude that the best scientific and Commercial, Recreational, Scientific, or commercial information available Educational Purposes the species, C. oklahomensis is currently protected by State regulations indicates that Calopogon oklahomensis In Arkansas, poaching of Calopogon only in Illinois, where it is State listed is not threatened throughout its range oklahomensis was observed at one State as endangered. The species is also State due to the inadequacy of existing Natural Area (Down’s Prairie) in recent listed as endangered in Tennessee, but regulatory mechanisms. years (Osborne 2010, pers. comm.). In the species is believed to be extirpated Factor E. Other Natural or Manmade this case, a number of obvious and fresh there. Factors Affecting Its Continued shovel holes were observed in the center The Illinois Endangered Species Existence of a patch of C. oklahomensis during the Protection Act requires State and blooming period (Osborne 2010, pers. municipal agencies taking actions that Small, Isolated Populations comm.). The poaching was noted as a might affect State or federally listed Goldman (2008a, pp. 4–5) describes one-time event, and C. oklahomensis species (including plants) to avoid, Calopogon species as having a unique persisted at this location after the minimize, or mitigate impacts to the biology that makes small or widely incident (Osborne 2011, pers. comm.). listed species (http://www.ilga.gov/ scattered populations more vulnerable This State Natural Area is regularly legislation/lcs/ilcs3.asp?ActID=1730& to extirpation. A Calopogon corm monitored with no additional poaching ChapterID=43&Print=True accessed on contains only two growing points observed, but it is difficult to determine 09/06/2011). Furthermore, it is unlawful compared to other vascular plants, the true impact of this one-time in the State of Illinois for any person to which have multiple tiny, dormant buds poaching event as population numbers take plants on the List of Endangered (Goldman 2008a, pp. 4–5). Because of C. oklahomensis fluctuate greatly and Threatened Species in Illinois Calopogon does not form new buds, this from one year to the next (Osborne without the express written permission species has only two chances for 2011, pers. comm.). of the landowner, or to sell or offer for success at perpetuating the plant

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through the next winter (Goldman and Soule´ 1986, pp. 25–33). The monitoring of the species is difficult, 2008a, pp. 4–5). Therefore, the species problems associated with small and long-term population abundance may be particularly vulnerable to population size and vulnerability to datasets are absent. stochastic events, which, if they occur at random demographic fluctuations or Unique features of the species’ a certain time (when the buds have natural catastrophes are further biology increase its vulnerability to formed or are forming), may destroy the magnified by synergistic interactions extirpation because it now exists in chance for the plant to reproduce that with other potential threats, such as small, isolated populations. However, year. Historically, the species most those discussed above under Factor A. we have population density information likely relied on a widespread mosaic of Despite evolutionary adaptations for only for some populations, and for some large populations, and thus some rarity, habitat loss and degradation years, in three (Arkansas, Mississippi, populations were able to escape local or increase a species’ vulnerability to and Oklahoma) of the seven States regional droughts, allowing the species extinction (Noss and Cooperrider 1994, (Arkansas, Illinois, Mississippi, to persist and recolonize the drought- pp. 58–62). Historically, Calopogon Missouri, Oklahoma, Texas, and affected areas. This species now consists oklahomensis was more widespread. An Wisconsin) where Calopogon of smaller populations that may be important benefit of this greater oklahomensis is believed to be extant. geographically disconnected from each historical range resulted in an advantage Populations may be large enough to other. Existence in small, isolated of redundancy: Additional populations withstand stochastic events. In addition, populations can render species separated by some distance likely because C. oklahomensis is not tracked vulnerable to local, regional, or allowed some populations to be spared in four of the seven States where it widespread extirpation due to the impacts of localized or more discrete exists, and there is, thus, likely uncontrollable natural forces, including catastrophic events, such as drought. unsurveyed potential habitat, there may local or regional climate perturbation However, this advantage of redundancy be other, as yet unknown populations of such as drought. Such an event could may be lost with the reduction in C. C. oklahomensis. Although C. eliminate most or all of a small oklahomensis range. Additionally, the oklahomensis may be exposed to a population. unique biological features of C. potential threat from small population Species that are known from few, oklahomensis described by Goldman size and fragmented habitats, we have widely dispersed locations are (2008a, pp. 4–5), which limit no evidence of a response to this factor. inherently more vulnerable to extinction reproduction and the ability to Rangewide, C. oklahomensis habitat is than widespread species because of the recolonize, may make this species more fragmented compared to historical higher risks from genetic bottlenecks, vulnerable to the effects of small occurrences of the species, and it’s random demographic fluctuations, and population sizes and fragmented unique biology may make it more localized catastrophes such as long-term habitats. vulnerable to extirpation than other drought (Lande 1988, p. 1455; Pimm et vascular plants; however, we have no al. 1988, p. 757; Mangel and Tier 1994, Our assessment of this species’ status information that this threat may act on p. 607). These problems are further is complicated by the fact that we have this species to the point that the species magnified when populations are few limited information regarding itself may be at risk or likely to become and restricted to a limited geographic population sizes of Calopogon so. area, and the number of individuals is oklahomensis. Although C. Climate Change very small. Populations with these oklahomensis may be considered characteristics face an increased uncommon, it is not considered so rare The Intergovernmental Panel on likelihood of stochastic extinction due as to be tracked by most States. (This Climate Change (IPCC) was established to changes in demography, the may also be due to the recent in 1988 by the World Meteorological environment, genetics, or other factors, recognition of C. oklahomensis as a Organization and the United Nations in a process described as an ‘‘extinction distinct species). Therefore, population Environment Program in response to vortex’’ by Gilpin and Soule´ (1986, pp. status studies have not been regularly growing concerns about climate change 24–25). Small, isolated populations conducted across its range for the 41 and, in particular, the effects of global often exhibit a reduced level of genetic extant populations. Throughout the warming. The IPCC Fourth Assessment variability or genetic depression due to range of C. oklahomensis (the States of Report (IPCC 2007, entire) synthesized inbreeding, which diminishes the Arkansas, Illinois, Mississippi, the projections of the Coupled Model species’ capacity to adapt and respond Missouri, Oklahoma, Texas, and Intercomparison Project (CMIP) Phase 3, to environmental changes, thereby Wisconsin), we have limited population a coordinated large set of climate model lessening the probability of long-term status information for three States runs performed at modeling centers persistence (Soule´ 1987, pp. 4–7). (Arkansas, Mississippi and Oklahoma). worldwide using 22 global climate Inbreeding depression as the result of Further complicating the availability of models (Ray et al. 2010, p. 11). Based on isolated, small populations can result in population data, the number of these projections, the IPCC has death, decreased fertility, smaller body flowering plants annually can vary concluded that the warming of the size, loss of vigor, reduced fitness, and dramatically at any C. oklahomensis climate system is unequivocal, as various chromosome abnormalities site, with this species not appearing evidenced from observations of (Smith 1974, p. 350). some years (Witsell 2009, pers. comm.). increases in global average air and ocean Although changes in the environment In addition, because this species was temperatures, widespread melting of may cause populations to fluctuate relatively recently identified (1995), C. snow and ice, and rising global average naturally, small and low-density oklahomensis specimens have been sea level (IPCC 2007, pp. 6, 30; Karl et populations are more likely to fluctuate confused for other Calopogon species, al. 2009, p. 17). Changes in the global below a minimum viable population especially C. tuberosus, due to the climate system during the 21st century (the minimum or threshold number of difficulty in distinguishing the two are likely to be larger than those individuals needed in a population to species (Goldman 1995, pp. 37–41; observed during the 20th century (IPCC persist in a viable state for a given Goldman et al. 2004b pp. 37–38; 2007, p. 19). Several scenarios are interval) (Shaffer 1981, p. 131; Shaffer Anderson 2010a, pers. comm.). For virtually certain or very likely to occur and Samson 1985, pp. 148–150; Gilpin these reasons, meaningful long-term in the 21st century including: (1) Over

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most land, weather will be warmer, with change may in turn affect the habitat oklahomensis. We reviewed the fewer cold days and nights, and more conditions for C. oklahomensis. For petition, information available in our frequent hot days and nights; (2) areas example, fire frequency may be files, other available published and affected by drought will increase; and influenced by climate change (Logan unpublished information, and we (3) the frequency of warm spells and and Powell 2001, p. 170; Westerling et consulted with species and habitat heat waves over most land areas will al. 2006, pp. 942–943) and may in turn experts, and other Federal, State, and likely increase (IPCC 2007, pp. 13, 53). increase suitable habitat of C. tribal agencies. In instances for which a direct cause oklahomensis, as it is believed that The available information indicates and effect relationship between global frequent burns tend to increase that C. oklahomensis is a fairly wide- climate change and regional effects to a population numbers of C. oklahomensis ranging species with relatively stable, specific species has not been (Goldman 2008, p. 10). Impacts of protected populations in much of its documented, we rely primarily on specific events on C. oklahomensis and current range. Based on our review of synthesis documents (e.g., IPCC 2007, its habitat have not been analyzed. the best available scientific and entire; Karl et al. 2009, entire) to inform Climate change is likely to affect commercial information pertaining to our evaluation of the extent that multiple variables that may influence the five factors, we find that despite regional impacts due to climate change the suitability of habitat for C. range reductions that have resulted in may affect our species. These synthesis oklahomensis. As habitat conditions smaller, disconnected populations, and documents present the consensus view have fluctuated in the past, and C. the species’ reproductive biology, which of climate change experts from around oklahomensis has persisted throughout may make it more vulnerable to the world. Typically, the projections of these fluctuations, this species should extirpation through stochastic events, downscaled models agree with the be able to persist so long as climate the threats, either individually or in projections of the global climate models change does not result in extreme combination, are not of sufficient (Ray et al. 2010, p. 25). Climate change changes to important characteristics of imminence, intensity, or magnitude to projections are based on models with the species habitat or life cycle, such as indicate that Calopogon oklahomensis is assumptions and are not absolute. the complete loss of prairie habitat or in danger of extinction (endangered), or Portions of the global climate change the complete loss of available moisture likely to become endangered within the models can be used to predict changes at a crucial life stage. At this time, the foreseeable future (threatened), at the regional-landscape scale; best available scientific information throughout all of its range. however, this approach contains higher does not indicate that impacts from Significant Portion of the Range levels of uncertainty than using global climate change are likely to be a threat models to examine changes on a larger to the species to the point that the Having determined that Calopogon scale. The uncertainty arises due to species may be at risk or likely to oklahomensis is not in danger of various factors related to difficulty in become so. extinction or likely to become so within applying data to a smaller scale, and to the foreseeable future throughout all of the paucity of information in these Summary of Factor E its range, we must next consider models such as regional weather Based on our evaluation, we find that whether there are any significant patterns, local physiographic Calopogon oklahomensis is not portions of the range where C. conditions, life stages of individual threatened by other natural or manmade oklahomensis is in danger of extinction species, generation time of species, and factors. Calopogon oklahomensis may or is likely to become in danger of species reactions to changing carbon be more vulnerable to other natural or extinction in the foreseeable future. The dioxide levels. Additionally, global manmade factors such as genetic Act defines ‘‘endangered species’’ as climate models do not incorporate a bottlenecks, random demographic any species which is ‘‘in danger of variety of plant-related factors that fluctuations, climate change, and extinction throughout all or a significant could be informative in determining localized catastrophes such as long-term portion of its range,’’ and ‘‘threatened how climate change could affect plant drought because of its unique biology species’’ as any species which is ‘‘likely species (e.g., effect of elevated carbon and because populations may be small to become an endangered species within dioxide on plant water-use efficiency, and fragmented from each other. At this the foreseeable future throughout all or the life stage at which the limit affects time, the best available information on a significant portion of its range.’’ The the species (seedling versus adult), the long-term population abundance does definition of ‘‘species’’ is also relevant lifespan of the species, and the not enable us to make a connection to this discussion. The Act defines the movement of other organisms into the between the species unique biology and term ‘‘species’’ as follows: ‘‘The term species’ range) (Shafer et al. 2001, p. small population size and the potential ‘species’ includes any subspecies of fish 207). impacts outlined above. For this reason, or wildlife or plants, and any distinct Regional landscapes also can be a review of the best available population segment [DPS] of any examined by downscaling global information indicates that threats species of vertebrate fish or wildlife climate models. Global climate models considered under Factor E may act on which interbreeds when mature.’’ The can play an important role in C. oklahomensis, but not to the point phrase ‘‘significant portion of its range’’ characterizing the types of changes that that the species is at risk now or now (SPR) is not defined by the statute, and may occur, so that the potential impacts or likely to become so. we have never addressed in our on natural systems can be assessed regulations: (1) The consequences of a (Shafer et al. 2001, p. 213). Finding determination that a species is either Climate change is likely to affect the As required by the Act, we considered endangered or likely to become so habitat of Calopogon oklahomensis, but the five factors in assessing whether throughout a significant portion of its we lack scientific information on what Calopogon oklahomensis is threatened range, but not throughout all of its those changes may ultimately mean for or endangered throughout all of its range; or (2) what qualifies a portion of the status of the species. Climate change range. We examined the best scientific a range as ‘‘significant.’’ effects are not limited to the timing and and commercial information available Two recent district court decisions amount of precipitation; other factors regarding the past, present, and future have addressed whether the significant potentially influenced by climate threats faced by Calopogon portion of its range language allows the

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Service to list or protect less than all plain meaning of the key definitions of entire species), and the likelihood that members of a defined ‘‘species’’: the Act; it does not conflict with some habitat types are less susceptible Defenders of Wildlife v. Salazar, 729 F. established past agency practice (i.e., to certain threats, contributing to Supp. 2d 1207 (D. Mont. 2010), prior to the March 16, 2007, resiliency (the ability of the species to concerning the Service’s delisting of the Memorandum Opinion issued by the recover from disturbance). None of these Northern Rocky Mountain gray wolf (74 Solicitor of the Department of the concepts is intended to be mutually FR 15123, Apr. 2, 2009); and WildEarth Interior, ‘‘The Meaning of ‘In Danger of exclusive, and a portion of a species’ Guardians v. Salazar, 2010 U.S. Dist. Extinction Throughout All or a range may be determined to be LEXIS 105253 (D. Ariz. Sept. 30, 2010), Significant Portion of Its Range’ ’’) as no ‘‘significant’’ due to its contributions concerning the Service’s 2008 finding consistent, long-term agency practice under any one of these concepts. on a petition to list the Gunnison’s has been established; and it is consistent For the purposes of this finding, we prairie dog (73 FR 6660, Feb. 5, 2008). with the judicial opinions that have determine if a portion’s biological The Service had asserted in both of most closely examined this issue. contribution is so important that the these determinations that it had Having concluded that the phrase portion qualifies as ‘‘significant’’ by authority, in effect, to protect only some ‘‘significant portion of its range’’ asking whether, without that portion, members of a ‘‘species,’’ as defined by provides an independent basis for the representation, redundancy, or the Act (i.e., species, subspecies, or listing and protecting the entire species, resiliency of the species would be so DPS), under the Act. Both courts ruled we next turn to the meaning of impaired that the species would have an that the determinations were arbitrary ‘‘significant’’ to determine the threshold increased vulnerability to threats to the and capricious on the grounds that this for when such an independent basis for point that the overall species would be approach violated the plain and listing exists. in danger of extinction (i.e., would be unambiguous language of the Act. The Although there are potentially many ‘‘endangered’’). Conversely, we would courts concluded that reading the ways to determine whether a portion of not consider the portion of the range at significant portion of its range language a species’ range is ‘‘significant,’’ we issue to be ‘‘significant’’ if there is to allow protecting only a portion of a conclude, for the purposes of this sufficient resiliency, redundancy, and species’ range is inconsistent with the finding, that the significance of the representation elsewhere in the species’ Act’s definition of ‘‘species.’’ The courts portion of the range should be range that the species would not be in concluded that once a determination is determined based on its biological danger of extinction throughout its made that a species (i.e., species, contribution to the conservation of the range if the population in that portion subspecies, or DPS) meets the definition species. For this reason, we describe the of the range in question became of ‘‘endangered species’’ or ‘‘threatened threshold for ‘‘significant’’ in terms of extirpated (extinct locally). species,’’ it must be placed on the list an increase in the risk of extinction for We recognize that this definition of in its entirety and the Act’s protections the species. We conclude that a ‘‘significant’’ establishes a threshold applied consistently to all members of biologically based definition of that is relatively high. On the one hand, that species (subject to modification of ‘‘significant’’ best conforms to the given that the consequences of finding protections through special rules under purposes of the Act, is consistent with a species to be endangered or threatened sections 4(d) and 10(j) of the Act). judicial interpretations, and best in a significant portion of its range Consistent with that interpretation, ensures species’ conservation. Thus, for would be listing the species throughout and for the purposes of this finding, we the purposes of this finding, a portion its entire range, it is important to use a interpret the phrase ‘‘significant portion of the range of a species is ‘‘significant’’ threshold for ‘‘significant’’ that is of its range’’ in the Act’s definitions of if its contribution to the viability of the robust. It would not be meaningful or ‘‘endangered species’’ and ‘‘threatened species is so important that, without appropriate to establish a very low species’’ to provide an independent that portion, the species would be in threshold whereby a portion of the basis for listing; thus there are two danger of extinction. range can be considered ‘‘significant’’ situations (or factual bases) under which We evaluate biological significance even if only a negligible increase in a species would qualify for listing: a based on the principles of conservation extinction risk would result from its species may be endangered or biology using the concepts of loss. Because nearly any portion of a threatened throughout all of its range; or redundancy, resiliency, and species’ range can be said to contribute a species may be endangered or representation. Resiliency describes the some increment to a species’ viability, threatened in only a significant portion characteristics of a species that allow it use of such a low threshold would of its range. If a species is in danger of to recover from periodic disturbance. require us to impose restrictions and extinction throughout a significant Redundancy (having multiple expend conservation resources portion of its range, it, the species, is an populations distributed across the disproportionately to conservation ‘‘endangered species.’’ The same landscape) may be needed to provide a benefit: listing would be rangewide, analysis applies to ‘‘threatened species.’’ margin of safety for the species to even if only a portion of the range of Therefore, the consequence of finding withstand catastrophic events. minor conservation importance to the that a species is endangered or Representation (the range of variation species is imperiled. On the other hand, threatened in only a significant portion found in a species) ensures that the it would be inappropriate to establish a of its range is that the entire species species’ adaptive capabilities are threshold for ‘‘significant’’ that is too shall be listed as endangered or conserved. Redundancy, resiliency, and high. This would be the case if the threatened, respectively, and the Act’s representation are not independent of standard were, for example, that a protections shall be applied across the each other, and some characteristic of a portion of the range can be considered species’ entire range. species or area may contribute to all ‘‘significant’’ only if threats in that We conclude, for the purposes of this three. For example, distribution across a portion result in the entire species’ finding, that interpreting the significant wide variety of habitats is an indicator being currently endangered or portion of its range phrase as providing of representation, but it may also threatened. Such a high bar would not an independent basis for listing is the indicate a broad geographic distribution give the significant portion of its range best interpretation of the Act because it contributing to redundancy (decreasing phrase independent meaning, as the is consistent with the purposes and the the chance that any one event affects the Ninth Circuit held in Defenders of

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Wildlife v. Norton, 258 F.3d 1136 (9th way. If the threats to the species are will help us monitor C. oklahomensis Cir. 2001). essentially uniform throughout its and encourage its conservation. If an The definition of ‘‘significant’’ used in range, no portion is likely to warrant emergency situation develops for C. this finding carefully balances these further consideration. Moreover, if any oklahomensis or any other species, we concerns. By setting a relatively high concentration of threats applies only to will act to provide immediate threshold, we minimize the degree to portions of the species’ range that protection. which restrictions will be imposed or clearly would not meet the biologically resources expended that do not based definition of ‘‘significant,’’ such References Cited contribute substantially to species portions will not warrant further A complete list of references cited is conservation. But we have not set the consideration. available on the Internet at http:// threshold so high that the phrase ‘‘in a In determining whether Calopogon www.regulations.gov and upon request significant portion of its range’’ loses oklahomensis is threatened or from the Chicago, Illinois Fish and independent meaning. Specifically, we endangered in a significant portion of its Wildlife Office (see ADDRESSES). have not set the threshold as high as it range, we first addressed whether any Author was under the interpretation presented portions of the range of C. oklahomensis by the Service in the Defenders warrant further consideration. We have The primary author of this notice is a litigation. Under that interpretation, the no evidence that any particular staff member of the Chicago, Illinois portion of the range would have to be population or portion of the range of C. Ecological Services Field Office. so important that current imperilment oklahomensis is critical to the species’ Authority there would mean that the species survival. Calopogon oklahomensis may would be currently imperiled actually occur continuously across its The authority for this section is everywhere. Under the definition of known range, but consistent, range-wide section 4 of the Endangered Species Act ‘‘significant’’ used in this finding, the surveys have not been done. The of 1973, as amended (16 U.S.C. 1531 et portion of the range need not rise to population areas delineated in this seq.). such an exceptionally high level of document were derived from existing Dated: September 23, 2011. biological significance. (We recognize data and information; however, Rowan Gould, that if the species is imperiled in a information on the species’ distribution Acting Director, Fish and Wildlife Service. portion that rises to that level of and numbers may change with more [FR Doc. 2011–25530 Filed 10–3–11; 8:45 am] biological significance, then we should survey effort. Other than the potential BILLING CODE 4310–55–P conclude that the species is in fact threat of habitat destruction and imperiled throughout all of its range, modification, which is concentrated on and that we would not need to rely on private land, other potential threats to DEPARTMENT OF THE INTERIOR the significant portion of its range the species are essentially uniform language for such a listing.) Rather, throughout its range. The 14 C. Fish and Wildlife Service under this interpretation we ask oklahomensis populations that occur on whether the species would be in danger private lands, which are not specifically 50 CFR Part 17 of extinction everywhere without that protected from habitat destruction or portion, i.e., if the species was modification, are not contiguous, but [Docket No. FWS–R8–ES–2007–0023; MO 92210–0–0008–B2] completely extirpated from that portion. scattered throughout the range of the The range of a species can species. Other than the land ownership, Endangered and Threatened Wildlife theoretically be divided into portions in there is nothing unique about these 14 and Plants; 12-Month Finding on a an infinite number of ways. However, populations that would contribute to the Petition to List the Amargosa River there is no purpose to analyzing resiliency, redundancy, or Population of the Mojave Fringe-Toed portions of the range that have no representation of the species—they have Lizard as an Endangered or reasonable potential to be significant the same biological characteristics that Threatened Distinct Population and threatened or endangered. To contribute to the species resiliency to Segment identify only those portions that warrant periodic disturbance; even in their further consideration, we determine absence, there are multiple, stable and AGENCY: Fish and Wildlife Service, whether there is substantial information protected populations distributed Interior. indicating that: (1) The portions may be throughout the species’ range; and they ACTION: Notice of 12-month petition ‘‘significant,’’ and (2) the species may be do not contain unique genetic, finding. in danger of extinction there or likely to morphological, physiological, become so within the foreseeable future. behavioral, or ecological diversity of the SUMMARY: We, the U.S. Fish and Depending on the biology of the species, species that is not represented in the Wildlife Service (Service), announce a its range, and the threats it faces, it protected populations. Therefore, we 12-month finding on a petition to list might be more efficient for us to address find that C. oklahomensis is not in the Amargosa River population of the the significance question first or the danger of extinction now, nor is it likely Mojave fringe-toed lizard (Uma status question first. Thus, if we to become endangered within the scoparia) located in San Bernardino determine that a portion of the range is foreseeable future throughout all or a County, California, as an endangered or not ‘‘significant,’’ we do not need to significant portion of its range. threatened distinct population segment determine whether the species is Therefore, listing C. oklahomensis as (DPS), under the Endangered Species endangered or threatened there; if we threatened or endangered under the Act Act of 1973, as amended (Act). After a determine that the species is not is not warranted at this time. thorough review of all available endangered or threatened in a portion of We request that you submit any new scientific and commercial information, its range, we do not need to determine information concerning the status of, or we find that the Amargosa River if that portion is ‘‘significant.’’ In threats to, Calopogon oklahomensis to population of the Mojave fringe-toed practice, a key part of the portion status our Chicago, Illinois Fish and Wildlife lizard does not constitute a DPS under analysis is whether the threats are Office (see ADDRESSES) whenever it our 1996 policy and, therefore, is not a geographically concentrated in some becomes available. New information listable entity under the Act. We ask the

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public to continue to submit to us any publish these 12-month findings in the sand self-burial (Hollingsworth and new information concerning the status Federal Register. Beaman 1999, p. 1). The hind feet have of, and threats to, the Amargosa River a series of elongated scales fringing the Previous Federal Actions population of this species and the lateral edges of the third and fourth species overall. This information will We received a petition dated April 10, digits; these fringes widen the toes, help us to monitor and encourage the 2006, from the Center for Biological giving the lizard additional support for ongoing management of this species. Diversity (CBD) and Ms. Sylvia locomotion on sand, and serve as ‘‘sand Papadakos-Morafka requesting that the DATES: The finding announced in the shoes.’’ The fringes also assist in the document was made on October 4, 2011. Amargosa River population of the lizard’s movements beneath the surface Mojave fringe-toed lizard (Uma of the sand (Norris 1958, p. 253). Self- ADDRESSES: This finding is available on scoparia) located in San Bernardino burial by fringe-toed lizards is presumed the Internet at http:// County, California, be listed as an to be defensive; there is no evidence to www.regulations.gov at Docket Number endangered or threatened distinct suggest that self-burial is FWS–R8–ES–2007–0023 and at http:// population segment (DPS) under the Act thermoregulatory or used for subsurface www.fws.gov/ventura/. Supporting (CBD and Papadakos-Morafka 2006). hunting as exhibited by other genera of documentation we used in preparing According to the petition, the Amargosa sand lizards (Pough 1970, p. 153). Nasal this finding is available for public River population is limited to Ibex and valves restrict the entrance of sand into inspection, by appointment, during Dumont dunes and Coyote Holes, which the lizard’s nasal passages. The nasal normal business hours at the U.S. Fish are located at the northern end of the passages are also specialized for desert and Wildlife Service, Ventura Fish and entire range of the species. On January living; they are convoluted and have Wildlife Office, 2493 Portola Road, 10, 2008, the Service made its 90-day absorbing surfaces that reduce moisture Suite B, Ventura, CA 93003; telephone finding (73 FR 1855), concluding that loss through the nasal openings 805–644–1766, extension 372; facsimile the petition did present substantial (Stebbins 1944, p. 316). Other 805–644–3958. Please submit any new scientific or commercial information to adaptations to a sand environment information, materials, comments, or indicate that the Amargosa River include smooth skin surface, a wedge- questions concerning this finding to the population of the Mojave fringe-toed shaped head, and well-developed eye above street address. lizard may be a DPS based on genetic and ear flaps (Pough 1970, p. 145). FOR FURTHER INFORMATION CONTACT: evidence, which may meet both the The Mojave fringe-toed lizard’s Michael McCrary, Listing and Recovery discreteness and significance criteria of smooth skin is patterned with small, Coordinator, U.S. Fish and Wildlife the DPS policy (61 FR 4722; February 7, black circles and flecks. Both sides of Service, Ventura Fish and Wildlife 1996), and, thus, may be a listable entity the belly have a conspicuous black spot, Office (see ADDRESSES section). Persons under the Act. Additionally, the Service the underside of the tail has black bars, who use a telecommunications device found the petition presented substantial and both sides of the throat have for the deaf (TDD) may call the Federal scientific or commercial information crescent-shaped markings. The Information Relay Service (FIRS) at that listing the Amargosa River concealing coloration of fringe-toed 800–877–8339. population of the Mojave fringe-toed lizards is striking and is one of the best examples of this phenomenon among SUPPLEMENTARY INFORMATION: lizard as endangered or threatened may be warranted. With publication of the North American vertebrates. Adults of Background 90-day finding, the Service initiated a the species have a yellow-green wash on the belly and pink on the sides during Section 4(b)(3)(B) of the Endangered status review of the Amargosa River population of the Mojave fringe-toed breeding periods, but during other times Species Act of 1973, as amended (Act) of year, the Mojave fringe-toed lizard’s (16 U.S.C. 1531 et seq.), requires that, lizard and solicited scientific and commercial information regarding this color mimics the sand dunes on which for any petition to revise the Lists of they dwell (Norris 1958, p. 253). The Endangered and Threatened Wildlife population. To ensure that this finding is based on Mojave fringe-toed lizard is and Plants that contains substantial distinguished from other fringe-toed scientific and commercial information the latest information and incorporates the opinions of the scientific lizard species by the dark black spot on that the petitioned action may be each side of the belly and the crescent- warranted, we make a finding within 12 community, the Service considered information provided by the public and shaped markings present on the sides of months of the date of our receipt of the the throat. The small black circles over petition. In this finding, we determine additional information and data in our files that, combined, provided the basis the shoulders do not unite to form lines that the petitioned action is: (1) Not as they do in the very closely related warranted; (2) warranted; or for the status review for the Amargosa River population of the Mojave fringe- species, Uma notata. (3) warranted, but the immediate Mojave fringe-toed lizards are toed lizard. proposal of a regulation implementing omnivorous throughout their lives. They the petitioned action is precluded by Species Information primarily feed on insects but will also other pending proposals to determine eat seeds and flowers (Stebbins 1944, p. Species Biology whether species are endangered or 329). Annual plants provide forage threatened, and expeditious progress is The Mojave fringe-toed lizard is in the during the springtime; however, their being made to add or remove qualified North American spiny lizard family availability diminishes during the species from the Lists of Endangered (Phrynosomatidae). This medium-sized summer as vegetation dries up (Stebbins and Threatened Wildlife and Plants. lizard, which may reach a snout-to-vent 1944, p. 329). Mojave fringe-toed lizards Section 4(b)(3)(C) of the Act requires length of up to 4.5 inches (112 derive most of their water from that we treat a petition for which the millimeters), is highly adapted to a arthropods and plants they ingest. requested action is found to be sand-dwelling existence (Norris 1958, p. The Mojave fringe-toed lizard is warranted but precluded as though 253). As part of its adaptation to living diurnal (active during the day) and has resubmitted on the date of such finding; in sand, the Mojave fringe-toed lizard’s daily activity patterns that are that is, it requires a subsequent finding body and tail are dorsoventrally (top to temperature-dependent. The actual to be made within 12 months. We must bottom) compressed, which facilitates ambient temperature range in which the

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Mojave fringe-toed lizard is active has dwelling plants and production of Desert and the northwestern reaches of not been documented. However, it is leaves and flowers that provide the Sonoran Desert characterized by documented that the Mojave fringe-toed nutrients, moisture, and protective palo verde (Cercidium floridum), lizard is likely active when its internal cover to the lizards, and thus enhances mesquite (Prosopis chilensis), creosote body temperature is between 79 and 112 reproductive activity (Mayhew 1966, bush (Larrea tridentata), white bur sage degrees Fahrenheit (26 and 44 degrees pp. 119–120). Breeding coloration and (Franseria sp.), indigo bush (Dalea sp.), Celsius) (Hollingsworth and Beaman increase in testis size indicate the male and numerous species of annuals. The 1999, p. 3). In March and April, Mojave breeding period, which typically occurs Mojave fringe-toed lizard inhabits areas fringe-toed lizards are active fewer between April and late June. Female of wind-blown sand, including dunes, hours than other species of fringe-toed breeding colors are displayed between washes, hillsides, margins of dry lakes, lizards due to cooler temperatures in the April and September (Mayhew 1966, and flats with sandy hummocks that Mojave Desert. From May to September, pp. 115–117). Ovarian egg counts also form around bases of vegetation they move about in the mornings and fluctuate in response to rainfall and (Hollingsworth and Beaman 1999, p. 8). late afternoons but retreat underground food availability, with reduced egg Fringe-toed lizards (Uma spp.), when temperatures are high. counts and fewer juveniles following including the Mojave fringe-toed lizard, Hibernation occurs from November to dry winters. There is also evidence to likely select active sand dune areas and February (Mayhew 1966, pp. 120–121). suggest that female lizards may have other areas of wind-blown, The Mojave fringe-toed lizard more than one brood per year (Mayhew intermediate-sized grains of sand, generally reaches sexual maturity 1966, p. 118). because those conditions facilitate self- during the second summer following burying and respiration while under the Species Range, Habitat, and Dispersal hatching. Reproductive activity in both sand (Pough 1970, p. 154). Based on the sexes varies from year-to-year and tends The Mojave fringe-toed lizard is scientific literature, the Mojave fringe- to increase with higher rainfall; winter endemic to the deserts of southern toed lizard is currently known to occur rainfall (October to March) in particular California and a small area across the at more than 35 sand dunes localities in seems to be the critical reason for the Colorado River in western Arizona. The southern California and one dune in increased reproductive activity. The Mojave fringe-toed lizard occurs in the western Arizona (Figure 1). moisture promotes germination in sand- lower Sonoran life zones of the Mojave BILLING CODE 4310–55–P

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BILLING CODE 4310–55–C

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On April 10, 2006, we received a dunes, and in a few cases, sandy habitat reason, Red Pass Dune appears twice in petition to list the Amargosa River associated with dry lakes and washes. the phylogenetic tree developed by population of Mojave fringe-toed lizard Murphy et al. (2006, p. 233), once in the Genetics as an endangered or threatened DPS Amargosa River clade and once in the under the Act. The petition defined the Mojave fringe-toed lizard Mojave River drainage system clade. Amargosa River population as Mojave phylogenetics have been studied by However, Murphy et al.’s (2006, p. 241) fringe-toed lizards occurring at Ibex Murphy et al. (2006, pp. 226–247) and overall conclusion was that the Dunes, Dumont Dunes, and Coyote more recently by Gottscho (2010, pp. 1– Amargosa River population is Holes (Figure 1). Subsequent to the 81). Phylogenetics is the study of the genetically distinct from other Mojave submittal of the petition, and as part of evolutionary relationships between fringed-toed lizard populations. the status review conducted for this groups of organisms, such as families, Gottscho (2010, pp. 9–18) also studied finding, Mojave fringe-toed lizards were subfamilies, genera, and species, based the relationships between different found in new locations for which there on genetic material. Murphy et al. populations of Mojave fringe-toed are no historical records of occurrence. (2006, pp. 231–233) analyzed the lizards but based his analysis on nuclear Based on their proximity to the three relationships between different DNA instead of on mitochondrial DNA. petitioned dunes, several of the new populations of Mojave fringe-toed Nuclear DNA is inherited from both the locations are part of the Amargosa River lizards based on mitochondrial DNA. female and male; thus each tissue population and, as hereafter described Mitochondrial DNA is inherited from sample had genetic information in this finding, the Amargosa River the female parent and not the male; inherited from both the mother and population includes the following thus, the genetic information reflects the father as opposed to mitochondrial newly discovered occupied dunes: Little matrilineal history. In the mitochondrial DNA, which has genetic information Dumont Dunes, located about 3 miles DNA study, tissue samples from 79 inherited from the mother only. (mi) (4.8 kilometers (km)) southwest of lizards were collected from 21 major Gottscho conducted his DNA analysis Dumont Dunes (Glenn 2008, in litt.); dune systems, including 1 dune in on tissue samples collected from lizards Valjean Dunes, located about 4 mi (6.4 Arizona, known to be occupied by the at 20 major dune systems throughout km) southeast of Dumont Dunes Mojave fringe-toed lizard as verified by the range of the species. Fifteen (Encinas 2008, in litt.); the sandy area collections in the California Academy of unlinked DNA sequences (or loci) from between Dumont and Valjean dunes Sciences and Los Angeles County each tissue sample were analyzed to (Encinas 2008, in litt.); and three Museum of Natural History. Murphy et determine genetic divergence between unnamed dunes located roughly al. (2006, p. 232) detected 52 unique population locations. Unlinked DNA midway between Valjean Dunes and haplotypes among the 21 dune systems sequences represent random segments Coyote Holes (Encinas 2008, in litt.) sampled. A haplotype is a set of closely of DNA that are not typically inherited (Figure 1). linked genetic markers on a single together and thus represent independent Additionally, new records of Mojave chromosome that tend to be inherited samples of genetic variation across the fringe-toed lizards have also expanded together. The number of tissue samples entire genome. Based on the nuclear the areas known to be occupied at Ibex collected per dune was small, with three DNA sequences from the 15 loci, Dunes, Dumont Dunes, and Coyote or fewer samples collected from the Gottscho developed 15 gene trees for the Holes (Glenn 2008, in litt.). Although majority (57 percent) of dunes (Murphy Mojave fringe-toed lizard, and none of not part of the Amargosa River et al. 2006, p. 230). Based on these gene trees showed evidence of population, Mojave fringe-toed lizards mitochondrial DNA sequence data from genetic divergence between the have also been recently found at an two mitochondrial genes, Murphy et al. Amargosa River population and other unnamed dune between Red Pass Dune (2006) developed a phylogenetic tree (a Mojave fringed-toed lizard populations and Silver Lake (Glenn 2008, in litt.) diagram consisting of branches that (Gottscho 2010, pp. 54–68). Gottscho (Figure 1). In aerial photographs, we represent genetic relationships, similar (2010, p. 26) found that ‘‘No geographic also noted the presence of other dune in appearance to a family tree) for the structuring within U. scoparia is formations and wind-blown sand areas Mojave fringe-toed lizard. evident, particularly between the southeast of Ibex Dune, northwest of Murphy et al. (2006, pp. 232–233) Mojave and Amargosa populations, Valjean Dunes, between Silver Lake and concluded that the lizards from the 21 which is expected given that they have Red Pass Dune, and between Red Pass dune systems consisted of 6 genetically 0% sequence divergence.’’ Thus, based Dune and Cronese Lakes. The physical related groupings or clades. One of the on his analysis of 15 nuclear DNA loci, characteristics and structure of these six is the Amargosa River clade, which Gottscho found no evidence that the areas appear to be similar to habitat Murphy determined consists of Ibex and Amargosa River population of Mojave known to be occupied by the Mojave Dumont Dunes, Coyote Holes, and Red fringed-toed lizard was genetically fringe-toed lizard. However, these areas Pass Dune (Murphy et al. 2006, p. 234). distinct from other Mojave fringed-toed have not yet been surveyed for the Red Pass Dune is geographically lizard populations (see Distinct presence of Mojave fringe-toed lizards. associated with the Mojave River Vertebrate Population Segment (DPS) Dispersal of Mojave fringe-toed drainage system clade, which is the next section for additional discussion of lizards between populations is poorly population to the south of the Amargosa research results of Gottscho (2010) and studied. No specimen of fringe-toed River population. Although Murphy et Murphy et al. (2006)). lizard has been captured more than al. (2006, pp. 232–233) classified lizards approximately 150 feet (ft) (46 meters from the Amargosa River population as Distinct Vertebrate Population Segment (m)) from wind-blown sand deposits constituting a separate genetic clade (DPS) (Norris 1958, p. 257). Norris believed than lizards in the Mojave River Section 3(16) of the Act defines that fringe-toed lizards are totally drainage system, the population of ‘‘species’’ to include ‘‘any subspecies of restricted to areas of wind-blown sand. Mojave fringe-toed lizards occurring at fish or wildlife or plants, and any For this reason, Mojave fringe-toed Red Pass Dune is unique in that it distinct population segment of any lizards, in the absence of intervening shares a haplotype with both the species of vertebrate fish or wildlife suitable habitat, have historically been Amargosa River clade and the Mojave which interbreeds when mature’’ (16 considered to be restricted to active River drainage system clade. For this U.S.C. 1532 (16)). Under the joint DPS

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policy of the Service and National ecological, or behavioral factors. approximately 17 mi (27 km) from the Marine Fisheries Service (61 FR 4722; Quantitative measures of genetic or next nearest location known to be February 7, 1996), three elements are morphological discontinuity may occupied by the species (Silver Lake, considered in the decision concerning provide evidence of this separation.’’ Figure 1). the establishment and classification of a Although absolute separation is not As also noted above in the ‘‘Species possible DPS. These are applied required under our DPS Policy, the use Range, Habitat, and Dispersal’’ section, similarly for additions to or removal of the term ‘‘markedly’’ in the Policy there are other dunes and areas of from the List of Endangered and indicates that the separation must be suitable wind-blown sand that could Threatened Wildlife. These elements strikingly noticeable or conspicuous. allow for movement of lizards between include: As part of the status review associated populations. Two dry lakes, the larger (1) The discreteness of a population in with this finding, we have examined the Silurian Lake and a smaller, unnamed relation to the remainder of the species Amargosa River population of Mojave lake, lie between the Amargosa River to which it belongs; fringed-toed lizard and expanded the population at Dumont Dune and the (2) The significance of the population definition of this population to include Mojave River drainage population at segment to the species to which it the newly discovered occupied dunes, Silver Lake, all of which are connected belongs; and as described above in the ‘‘Species by a dry streambed. In the past, Norris (3) The population segment’s Range, Habitat, and Dispersal’’ section. (1958, p. 263) personally observed this conservation status in relation to the We have examined the Amargosa River area covered in sand and occupied by Act’s standards for listing, delisting, or population of the Mojave fringe-toed Mojave fringe-toed lizards and reclassification (i.e., Is the population lizard to determine if it is markedly specifically mentioned dunes at Silurian segment, when treated as if it were a separated from other populations of the Lake being occupied. He noted species, endangered or threatened?). same taxon. migration between river drainages was Under the DPS Policy, we must first The important question with regard to allowed across low divides, such as the determine whether the population discreteness under our DPS policy is divide between the Mojave and the qualifies as a DPS; this requires a whether or not the Amargosa River Amargosa Rivers when sand shadows finding that the population is both: (1) population is markedly separated from (an accumulation of sand formed in the Discrete in relation to the remainder of other populations of Mojave fringed- shelter of a fixed obstruction, such as the species to which it belongs; and (2) toed lizard. The Amargosa River clumps of vegetation) and blow-ups biologically and ecologically significant population could be found to be were present (Norris 1958, p. 316). Sand to the species to which it belongs. If the markedly physically separated if the dunes are highly dynamic and population meets the first two criteria distance between any part of that continually moving, in some cases, under the DPS policy, we then proceed population and any other population is moving several meters per year (Norris to the third element in the process, greater than the distance the lizard is 1958, p. 262). This dune movement may which is to evaluate the population believed to be able to travel across areas have accounted for the species’ segment’s conservation status in relation without suitable habitat (i.e., without movement and occupancy of the low to the Act’s standards for listing as an windblown sand). Mojave fringe-toed divide between the Mojave and endangered or threatened species. The lizard movement among dunes is Amargosa River drainages, providing a DPS evaluation in this finding concerns considered unlikely in the absence of corridor between populations (Norris the Amargosa River population as it has nearby areas of wind-blown sand. 1958, p. 263). However, based on our been defined herein. Mojave fringe-toed lizards have review of aerial photos taken historically been considered to be subsequent to Norris’ observations, Discreteness restricted to active dunes and, in a few suitable dune habitat does not appear to Under the DPS Policy, a population cases, sandy habitat associated with dry currently exist around Silurian Lake. segment of a vertebrate taxon may be lakes and washes (Hollingsworth and Gottscho (2010, p. 31) also noted that considered discrete if it satisfies either Beaman 1999, p. 3). the low-divide area between the Mojave one of the following conditions: As noted above in the ‘‘Species Range, and Amargosa River drainages that (1) It is markedly separated from other Habitat, and Dispersal’’ section, surveys Norris referred to in 1958 as being populations of the same taxon as a conducted subsequent to the submittal covered by sand and occupied by consequence of physical, physiological, of the petition show that there are more Mojave fringe-toed lizards does not ecological, or behavioral factors. Mojave fringe-toed lizards in the appear to be covered by sand or Quantitative measures of genetic or Amargosa River area than was occupied by Mojave fringe-toed lizards morphological discontinuity may previously thought. New locations with currently. Therefore, at the present time, provide evidence of this separation. documented Mojave fringe-toed lizards the Amargosa River population appears (2) It is delimited by international include Little Dumont Dunes, Valjean to be physically isolated from other governmental boundaries within which Dunes, the area between Dumont and populations of Mojave fringed-toed differences in control of exploitation, Valjean dunes, and three unnamed lizards. management of habitat, conservation dunes located between Valjean Dunes Thus, based on the best scientific and status, or regulatory mechanisms exist and Coyote Holes (Glenn 2008, in litt.; commercial information currently that are significant in light of section Encinas 2008, in litt.) (Figure 1). The available, we believe that the 17 mi (27 4(a)(1)(D) of the Act. Mojave fringe-toed lizard is also now km) of unsuitable habitat between the known to occur in additional areas of Amargosa River population and the next Markedly Separated From Other Ibex Dunes, Dumont Dunes, and Coyote nearest area known to be currently Populations of the Taxon Holes (Encinas 2008, in litt.). In occupied by the species is beyond the Under the first test of discreteness in combination, these new areas have dispersal capability of the species, and our DPS policy, a population segment expanded the range of the Amargosa we conclude that the Amargosa River may be considered discrete if it is River population beyond what was population is markedly physically ‘‘markedly separated from other described in the petition. However, the separated from other populations. populations of the same taxon as a expanded Amargosa River population, Therefore, we have determined that the consequence of physical, physiological, including these new areas, is still Amargosa River population of the

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Mojave fringe-toed lizard meets the segment’s significance may include, but species (73 FR 1855; January 10, 2008). discreteness element of our DPS policy. is not limited to the following: The Amargosa River population is the (1) Persistence of the discrete most northerly population of the International Boundaries population segment in an ecological species, and as such, the loss of the A population segment of a vertebrate setting unusual or unique for the taxon, Amargosa River population would not species may be considered discrete if it (2) Evidence that loss of the discrete result in the isolation of any other is delimited by international population segment would result in a populations to the south. governmental boundaries across which significant gap in the range of a taxon, The Amargosa River population is a differences in control of exploitation, (3) Evidence that the discrete peripheral population, and peripheral management of habitat, conservation population segment represents the only populations can be important in species status, or regulatory mechanisms exist surviving natural occurrence of a taxon conservation if they are genetically that are significant in light of section that may be more abundant elsewhere as divergent from populations in the 4(a)(1)(D) of the Act. The range of the an introduced population outside its central portion of the species’ range Mojave fringe-toed lizard occurs solely historical range, or (Lesica and Allendorf 1995, pp. 753– within the continental United States (4) Evidence that the discrete 760; Lomolino and Channell 1998, pp. and is not delimited by international population segment differs markedly 481–484; Fraser 2000, pp. 49–53). governmental boundaries. Therefore, the from other populations of the species in Peripheral populations that are spatially Amargosa River population of Mojave its genetic characteristics. distant from central populations may be A population segment needs to satisfy fringe-toed lizard does not satisfy this exposed to different environmental only one of these criteria to be condition. conditions and thus different natural considered significant. Furthermore, the selection forces, which in some Summary for Discreteness list of criteria is not exhaustive; other populations may result in unique criteria may be used as appropriate. We find that the Amargosa River adaptations that may be important for Here we evaluate the four potential the species in adapting to future population is markedly physically factors suggested by our DPS policy in environmental changes. However, as separated from other populations evaluating significance. discussed above, habitat and climate in because of the limited dispersal the area occupied by the Amargosa capability of the Mojave fringe-toed Persistence of the Discrete Population River population are similar to lizard and the absence of intervening Segment in an Ecological Setting environmental conditions elsewhere in habitat that could provide for the Unusual or Unique for the Taxon the species’ range. If different natural regular movement of lizards between Available information does not selection pressures were acting on the this population and other populations. indicate that differences exist in the Amargosa River population, differences Consequently, and based upon review of ecological setting between the Amargosa in morphological, behavioral, or the best available information, the River population and other populations physiological characteristics might be Service finds that the Amargosa River within the species’ range. The habitat expected between Amargosa River population meets the discreteness occupied by the Amargosa River Mojave fringed-toed lizards and Mojave element of our DPS policy. population is wind-blown sand, which fringed-toed lizards in other populations Significance is typical of other populations of Mojave to the south, but there is no available fringed-toed lizard. There is no evidence of such differences. Evidence Because we have determined that the difference in climate or other physical of genetic differences is discussed Amargosa River population of Mojave or biological factors between the below. fringe-toed lizard is discrete under our Amargosa River population and the We conclude that the loss of the DPS policy, we will next consider its Silver Lake population, which is located Amargosa River population would not biological and ecological significance to 17 mi (27 km) to the south but is part result in a significant gap in the range the taxon to which it belongs in light of of the Mojave River drainage of the species because the population Congressional guidance that the population. There is no available represents only a small percentage (less authority to list DPSs be used information that would suggest the than 5 percent) of the species’ range, ‘‘sparingly’’ while encouraging the existence of any morphological, and potential loss of the population conservation of genetic diversity. To behavioral, or physiological differences would not result in the isolation of any evaluate whether a discrete vertebrate between individuals from the Amargosa other Mojave fringed-toed lizard population may be significant to the River population and individuals from populations. Peripheral populations can taxon to which it belongs, we consider other Mojave fringed-toed lizard have conservation value, but available available scientific evidence of the populations. We therefore determine evidence does not indicate that population segment’s importance to the that the Amargosa River population of individuals from the Amargosa River taxon to which it belongs. Because the Mojave fringe-toed lizard does not population have unique morphological, precise circumstances are likely to vary meet the significance element of the behavioral, or physiological adaptations considerably from case to case, the DPS DPS policy based on this factor. that may be significant to the species’ policy does not describe all the classes conservation. of information that might be used in Evidence that Loss of the Discrete determining the biological and Population Segment Would Result in a Whether the Population Represents the ecological importance of a discrete Significant Gap in the Range of a Taxon Only Surviving Natural Occurrence of population. However, the DPS policy We estimate that the areas covered by the Taxon describes four possible classes of wind-blown sand habitat at Ibex and The Amargosa River population is not information that provide evidence of a Dumont dunes and Coyote Holes, along the only surviving natural occurrence of population segment’s biological and with the newly discovered areas that the species. Mojave fringe-toed lizards ecological importance to the taxon to constitute the Amargosa River are known to occur at more than 35 which it belongs. As specified in the population as defined herein, make up sand dune complexes in California, and DPS policy (61 FR 4722), this less than 5 percent of the total wind- one in Arizona, all of which are consideration of the population blown sand habitat occupied by the naturally occurring within the species’

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historical range. Consequently, we and Barrowclough 2008, p. 2109). fringed-toed lizard populations at 15 conclude that the Amargosa River Genetic drift is change in the frequency independent nuclear loci. He concluded population of the Mojave fringe-toed of a gene variant, or allele, within a that lack of genetic divergence is best lizard does not meet this factor of the population due to random sampling. explained by past gene flow between significance criterion of the DPS policy. Zink and Barrowclough (2008, pp. Mojave fringed-toed lizard populations 2107–2121) concluded that Evidence That the Discrete Population (Gottscho 2010, pp. 26–34). He noted mitochondrial DNA is more likely than Segment Differs Markedly From Other that the lack of a single fixed difference nuclear DNA to reveal more recent Populations of the Species in Its Genetic between the Amargosa River population evolutionary splits and that nuclear Characteristics and Mojave River population was not markers are more lagging indicators of unexpected given that the Mojave River Two studies have compared genetic changes in population structure. overflows into the Amargosa River characteristics between the Amargosa Another implication of the differences when its current terminus at Silver Lake River population and other Mojave between mitochondrial and nuclear reaches capacity, and no mountains fringed-toed lizard populations (see DNA is that mitochondrial DNA is a exist that might have impeded the ‘‘Genetics’’ section). One study, based single molecule with a single specific movement of sand dunes and lizards on analysis of mitochondrial DNA, history that, for various reasons, can between these drainages in historical found that individuals from the differ from the true evolutionary history times (Gottscho 2010, p. 26). Gottscho Amargosa River population possessed of the species or population (Ballard (2010, pp. 32–33) noted that although unique haplotypes and differed and Whitlock 2004, p. 734). For sand dune complexes may seem isolated genetically from other Mojave fringed- example, because mitochondrial DNA is today, in geologic time (evolutionary toed lizard populations (Murphy et al. inherited only from the mother, time) they have moved across the 2006, pp. 226–247). Another study, mitochondrial DNA patterns might be a landscape regularly with changing based on analysis of 15 nuclear DNA biased portrayal of the overall lineage climate. loci, found no genetic divergence history of the species if the species We conclude that the results of between the Amargosa River population exhibits different dispersal patterns Murphy et al. (2006) do not reflect deep and other Mojave fringed-toed lizard between males and females (Avis 2004, genetic divergence between the populations (Gottscho 2010, pp. 21–68). pp. 274–277; Zink and Barrowclough Amargosa River population and other Different patterns of genetic variation 2008, p. 2108). Indeed, sex-biased Mojave fringed-toed lizard populations, between mitochondrial and nuclear dispersal is known to occur in various DNA analyses are not uncommon lizard species (Doughty et al. 1994, pp. as evidenced by the shared haplotypes (Moore 1995, pp. 718–726; Avise 2004, 227–229; Johansson et al. 2008, p. 4426; from the Amargosa River clade and pp. 273–276, 372–380; Ballard and Urqhhart 2008, p. 2). In Mojave fringe- Mojave River drainage clades at the Red Whitlock 2004, pp. 729–744; Bazin et al. toed lizards, although the dispersal of Pass Dune location, which is located 2006, pp. 570–572; Zink and males compared to that of females has outside of the Amargosa River drainage Barrowclough 2008, pp. 2107–2121). not been studied, males do display (see Genetics section). We conclude that Mitochondrial and nuclear DNA differ territorial behavior causing rival males the results of Murphy et al. (2006) and in important aspects. Genes in the to be pushed out of their territory Gottscho (2010) are best explained by mitochondrial genome evolve as a single (Carpenter 1963, p. 406). In addition, relatively recent evolutionary linkage unit (Allendorf and Luikart there is evidence that the home ranges population divergence between the 2007, p. 159). Mitochondrial DNA of male Mojave fringe-toed lizards are Amargosa River population and Mojave analysis thus yields only a single gene larger than those of females (Penrod et River drainage populations: the tree, and single gene trees potentially al. 2008, p. 47). Because it is likely that relatively recent divergence has been misrepresent the taxon’s evolutionary Mojave fringe-toed lizard males disperse enough for subtle differences in the history (Ballard and Whitlock 2004, p. farther than females, we would expect mitochondrial DNA to develop, as 734; Zink and Barrowclough 2008, p. more gene flow to occur among nuclear indicated by the Murphy et al. (2006) 2108). For most animal species, genes than among mitochondrial genes study, but not enough for differences in including the Mojave fringed-toed because mitochondrial genes are only the nuclear DNA genetic markers to lizard, individuals inherit inherited from the female. As a result of develop, as indicated by the Gottscho mitochondrial DNA from only the reduced female dispersal, gene flow (2010) study (Gottscho 2011, pers. mother; nuclear DNA is inherited from among mitochondrial genes may be comm.). We find that the best available both mother and father (Allendorf and reduced compared to nuclear gene flow information is not indicative of marked Luikart 2007, p. 159). These and other in species with sex-biased dispersal differences in genetic characteristics differences between mitochondrial and patterns (Avise 2004, pp. 273–276; between the Amargosa River population nuclear DNA have led some to caution Gottscho 2010, p. 32). Reduced flow of and other Mojave fringed-toed lizard against the sole use of mitochondrial mitochondrial genes compared to populations because: (1) The Gottshco DNA analysis when trying to nuclear genes would be expected to (2010) study, which showed no genetic understand the phylogeography or result in greater genetic divergence differentiation between the Amargosa evolutionary history of a species or between individuals and populations in River population and other Mojave population (Moore 1995, pp. 718–726; mitochondrial DNA-based studies fringed-toed lizard populations, was Hare 2001, pp. 700–706; Ballard and compared to nuclear DNA-based based on analysis of multiple, Whitlock 2004, pp. 729–744; Bazin et al. studies, which is consistent with the independent nuclear gene loci, whereas 2006, 570–572). pattern observed in the Murphy et al. the Murphy et al. (2006) study was One of the implications of the (2006, pp. 226–247) mitochondrial based on analysis of a single differences between mitochondrial and DNA-based study and the Gottscho mitochondrial gene locus and thus may nuclear DNA is that genetic drift will (2010, pp. 1–81) nuclear DNA-based not present a full and accurate cause divergence between isolated study. representation of the population’s populations to occur more slowly at Gottscho (2010, pp. 21–68) found zero evolutionary history (see discussion nuclear gene loci than at mitochondrial percent genetic divergence between the above of potential limitations of gene loci (Hare 2001, pp. 701–702; Zink Amargosa population and other Mojave mitochondrial DNA studies); (2) the

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results of Murphy et al. (2006) are not importance to the Mojave fringe-toed isolation of other Mojave fringed-toed indicative of deeply divergent genetic lizard species. lizard populations; and the population differentiation, as evidenced by the Overall, based on our review of the area makes up only a small portion of shared haplotypes from the Amargosa factors for significance as summarized the entire species’ range. The Amargosa River clade and Mojave River drainage herein, we find that the Amargosa River River population does not represent the clades at the Red Pass Dune location. population of the Mojave fringe-toed only surviving natural occurrence of a lizard does not satisfy the Summary for Significance taxon that may be more abundant considerations of the DPS policy for elsewhere as an introduced population Based on the best information being significant in relation to the outside its historical range. Although an available, we do not find that the remainder of the taxon. analysis of mitochondrial DNA showed Amargosa River population occurs in a Determination of Distinct Population genetic differences between individuals unique ecological setting because the Segment in the Amargosa River population and population occurs in an ecological Based on the best scientific and individuals in other Mojave fringed-toed setting similar to other nearby commercial data available, we find that lizard populations (Murphy et al. 2006, populations. Climate and habitat within the Amargosa River population of pp. 226–247), this study found that the Amargosa River population area are Mojave fringed-toed lizard meets the individuals from a population area in similar to climate and habitat in nearby discreteness element of our 1996 DPS the Mojave River drainage (Red Pass population areas within the Mojave policy, but not the significance element. Dune) had shared haplotypes from the River drainage. We also do not find that To qualify as a DPS under the Services’ Amargosa River clade and Mojave River the loss of the Amargosa River 1996 DPS policy, a population must drainage clades. A recent study that population would result in a significant meet both the discreteness and analyzed nuclear DNA found zero gap in the range of the species because significance elements of the policy. genetic divergence between lizards in the loss of the population would not Therefore, the Amargosa River the Amargosa River population and result in the isolation of other Mojave population does not qualify as a DPS lizards in other Mojave fringed-toed fringed-toed lizard populations, and the under our DPS policy and is not a lizard populations at all 15 independent Amargosa River population makes up listable entity under the Act. Because nuclear loci analyzed (Gottscho 2010, only a small percentage (less than 5 the population does not qualify as a pp. 26–30). The best available percent) of the entire range of the DPS, we will not proceed with an species. The Amargosa River population information does not indicate that evaluation of the status of the individuals from the Amargosa River is not the only surviving natural population under the Act. occurrence of the taxon, as all known population possess unique evolutionary areas currently occupied by the species Finding adaptations as there are no known (see Figure 1) are naturally occurring We have carefully assessed the best morphological, physiological, or populations within the historical range scientific and commercial information behavioral differences between of the species. We also find that the available for the Amargosa River individuals from the Amargosa River Amargosa River population does not population of the Mojave fringe-toed population and other Mojave fringed- differ markedly from other Mojave lizard, including information in the toed lizard populations. We conclude fringed-toed lizard populations in its petition, and available published and that the best scientific and commercial genetic characteristics. One study found unpublished scientific and commercial data available do not indicate that the evidence of certain genetic differences information. This 12-month finding Amargosa River population differs between the Amargosa River population reflects and incorporates information markedly from other populations of the and other Mojave fringed-toed lizard that we received from the public and species in its genetic characteristics. populations (Murphy et al. (2006)), and interested parties or that we obtained We have determined that the another study found evidence of no through consultation, literature Amargosa River population, while genetic differentiation between research, and field visits. markedly separated from other existing populations (Gottscho (2010)). We On the basis of this review, we have populations of Mojave fringe-toed lizard conclude that in total, the best available determined that the Amargosa River and thus discrete, does not meet the data from these studies does not rise to population of Mojave fringe-toed lizard, significance element of our 1996 DPS the level of meeting the standard of although discrete according to our DPS policy and, therefore, does not qualify marked differences in genetic policy, does not meet the significance as a DPS and is not a listable entity characteristics between the Amargosa element of our 1996 DPS policy. The under the Act. Therefore, we find that River population and other Mojave best available scientific and commercial the petitioned action to list the fringed-toed lizard populations. We also information does not indicate that the Amargosa River population of Mojave note that there is no evidence of Amargosa River population occurs in an fringe-toed lizard as an endangered or morphological, physiological, or ecological setting unusual or unique for threatened species under the Act is not behavioral differences between the taxon; climate and habitat in the warranted. individuals from the Amargosa River Amargosa River population area are population and individuals from other similar to climate and habitat of nearby We request that you submit any new Mojave fringed-toed lizard populations; populations, and we are not aware of information concerning the status of, or such differences may be expected if differences in behavior, physiology, or threats to, this species to our Ventura Mojave fringed-toed lizards from the morphology between lizards in the Fish and Wildlife Office (see ADDRESSES Amargosa River population possessed Amargosa River population and nearby section) whenever it becomes available. unique evolutionary adaptations. populations. The best available New information will help us monitor Moreover, the best available scientific information also does not indicate that this species and promote its evidence does not indicate any other loss of the Amargosa River population conservation. If an emergency situation classes of information that may provide would result in a significant gap in the develops for this or any other species, evidence of the Amargosa River range of the species; loss of the we will act to provide immediate population’s biological and ecological population would not result in the protection.

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References Cited all interested parties an opportunity to use a telecommunications device for the A complete list of all references cited comment simultaneously on the deaf (TDD) may call the Federal in this document is available on the proposed rule, revisions to the proposed Information Relay Service (FIRS) at Internet at http://www.regulations.gov, rule, the associated DEA and draft EA, (800) 877–8339. or upon request from the Field and the amended required SUPPLEMENTARY INFORMATION: determinations section. Comments Supervisor, Ventura Fish and Wildlife Public Comments Office (see ADDRESSES section). previously submitted need not be resubmitted and will be fully We will accept written comments and Authors considered in preparation of the final information during this reopened The primary authors of this notice are rule. comment period on our proposed the staff members of the Ventura Fish DATES: Comment submission: We will uplisting and designation of critical and Wildlife Office (see ADDRESSES consider comments received on or habitat for the spikedace and loach section). before November 3, 2011. Comments minnow that was published in the Federal Register on October 28, 2010 Authority must be received by 11:59 p.m. Eastern Time on the closing date. Any (75 FR 66482), our draft economic The authority for this action is section comments that we receive after the analysis and draft environmental 4 of the Endangered Species Act of closing date may not be considered in assessment of the proposed designation, 1973, as amended (16 U.S.C. 1531 et the final decision on this action. and the amended required seq.). Public hearing: We will hold a public determinations provided in this Dated: September 23, 2011. hearing on the critical habitat proposal, document. We will consider Rowan Gould, draft economic analysis, and draft information and recommendations from Acting Director, Fish and Wildlife Service, environmental assessment, preceded by all interested parties. We are particularly interested in comments [FR Doc. 2011–25561 Filed 10–3–11; 8:45 am] an informational session. The informational session will be held from concerning: BILLING CODE 4310–55–P 3 to 4:30 p.m., followed by a public (1) The factors that are the basis for hearing from 6:30 to 8 p.m., on October making a listing determination for a DEPARTMENT OF THE INTERIOR 17, 2011. species under section 4(a) of the ADDRESSES: Document availability: You Endangered Species Act of 1973, as Fish and Wildlife Service may obtain a copy of the DEA or EA at amended (Act) (16 U.S.C. 1531 et seq.), http://www.regulations.gov at Docket which are: (a) The present or threatened 50 CFR Part 17 No. FWS–R2–ES–2010–0072 or by destruction, modification, or contacting the person listed under FOR curtailment of its habitat or range; (b) [Docket No. FWS–R2–ES–2010–0072; MO Overutilization for commercial, 92210–0–0009–B4] FURTHER INFORMATION CONTACT. Comment submission: You may recreational, scientific, or educational RIN 1018–AX17 submit comments by one of the purposes; (c) Disease or predation; (d) following methods: The inadequacy of existing regulatory Endangered and Threatened Wildlife • Federal eRulemaking Portal: http:// mechanisms; or (e) Other natural or and Plants; Endangered Status and www.regulations.gov. Follow the manmade factors affecting its continued Designation of Critical Habitat for instructions for submitting comments to existence. Spikedace and Loach Minnow; Revised Docket No. FWS–R2–ES–2010–0072. (2) Additional information concerning Proposed Rule • U.S. mail or hand-delivery: Public the range, distribution, and population AGENCY: Fish and Wildlife Service, Comments Processing, Attn: FWS–R2– size of this species, including the Interior. ES–2010–0072, Division of Policy and locations of any additional populations ACTION: Proposed rule; revision and Directives Management, U.S. Fish and of this species. reopening of the comment period. Wildlife Service, 4401 N. Fairfax Drive, (3) Any information on the biological Suite 222, Arlington, VA 22203. or ecological requirements of the SUMMARY: We, the U.S. Fish and Public hearing: The public hearing of species. Wildlife Service, announce the October 17, 2011, will be held at the (4) The reasons why we should or reopening of the October 28, 2010, Apache Gold Convention Center should not designate habitat as ‘‘critical public comment period on the proposed (Geronimo Room), located five miles habitat’’ under section 4 of the designation of critical habitat and east of Globe, Arizona on Highway 70. Endangered Species Act of 1973, as proposed endangered status for the People needing reasonable amended (Act) (16 U.S.C. 1531 et seq.) spikedace (Meda fulgida) and loach accommodations in order to attend and including whether there are threats to minnow (Tiaroga cobitis) under the participate in the public hearings the species from human activity, the Endangered Species Act of 1973, as should contact Steve Spangle, Arizona degree of which can be expected to amended (Act). We also announce the Ecological Services Office, at (602) 242– increase due to the designation, and availability of a draft economic analysis 0210 as soon as possible (see FOR whether that increase in threat (DEA) and draft environmental FURTHER INFORMATION CONTACT). In order outweighs the benefit of designation assessment (EA) on the proposed to allow sufficient time to process such that the designation of critical designation of critical habitat for requests, please call no later than one habitat may not be prudent. spikedace and loach minnow, and an week before the hearing date. (5) Specific information on: amended required determinations FOR FURTHER INFORMATION CONTACT: (a) The amount and distribution of section of the proposal. We are also Steve Spangle, Field Supervisor, U.S. spikedace and loach minnow habitat; announcing a revision to proposed Fish and Wildlife Service, Arizona (b) What areas occupied at the time of critical habitat units 6 (San Francisco Ecological Services Office, 2321 W. listing and containing features essential River Subbasin) and 8 (Gila River Royal Palm Road, Suite 103, Phoenix, to the conservation of the species Subbasin) for loach minnow. We are AZ 85021; telephone (602) 242–0210; should be included in the designation reopening the comment period to allow facsimile (602) 242–2513. Persons who and why;

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(c) Special management You may submit your comments and (70 FR 75546), and on March 21, 2007, considerations or protections that materials concerning the proposed rule, we published a final critical habitat features essential to the conservation of DEA, or draft environmental assessment designation (72 FR 13356) for the spikedace and loach minnow, as by one of the methods listed in spikedace and loach minnow. The 2007 identified in this proposal, may require, ADDRESSES. We will not consider designation was challenged in Coalition including managing for the potential comments sent by e-mail or fax or to an of Arizona/New Mexico Counties for effects of climate change; and address not listed in ADDRESSES. Stable Economic Growth v. Salazar, (d) What areas not occupied at the If you submit a comment via http:// (D.N.M.), which was consolidated with time of listing are essential for the www.regulations.gov, your entire another lawsuit brought by the Center conservation of the species and why. comment—including any personal for Biological Diversity. Both parties (6) Land use designations and current identifying information—will be posted contested the validity of the or planned activities in the subject areas on the Web site. We will post all designation, but for different reasons. and their possible impacts on proposed hardcopy comments on http:// We filed a motion for voluntary remand critical habitat. www.regulations.gov as well. If you of the final rule on February 2, 2009, in (7) Any probable economic, national submit a hardcopy comment that order to reconsider the final rule in light security, or other impacts of designating includes personal identifying of a recently issued Department of the any area that may be included in the information, you may request at the top Interior Solicitor’s Opinion, which final designation. We are particularly of your document that we withhold this discusses the Secretary of the Interior’s interested in any impacts on small information from public review. authority to exclude areas from a critical entities or families, and the benefits of However, we cannot guarantee that we habitat designation under section 4(b)(2) including or excluding areas that exhibit will be able to do so. of the Act. On May 4, 2009, the Court these impacts. Comments and materials we receive, granted our motion for voluntary as well as supporting documentation we (8) Whether we could improve or remand, but retained the 2007 critical used in preparing the proposed rule, modify our approach to designating habitat designation pending DEA, and draft environmental critical habitat in any way to provide for promulgation of a new designation. assessment will be available for public greater public participation and On October 28, 2010, we published a inspection on http:// understanding, or to better proposed rule to designate critical www.regulations.gov at Docket No. habitat for the spikedace and loach accommodate public concerns and FWS–R2–ES–2010–0072, or by minnow (75 FR 66482). We proposed comments. appointment, during normal business 1,168 kilometers (km) (726 miles (mi)) (9) Information on whether the benefit hours, at the U.S. Fish and Wildlife of streams as critical habitat for of an exclusion of any particular area Service, Arizona Ecological Services spikedace, and 1,172.4 km (728.5 mi) of outweighs the benefit of inclusion under Office (see FOR FURTHER INFORMATION streams as critical habitat for loach section 4(b)(2) of the Act. We CONTACT). You may obtain copies of the minnow. Of this total mileage, 874 km specifically solicit the delivery of proposed rule and the DEA on the (543 mi) of streams are overlapping spikedace- and loach minnow-specific Internet at http://www.regulations.gov at (proposed for designation for both management plans for areas included in Docket Number FWS–R2–ES–2010– species). We are revising critical habitat this proposed designation. Management 0072, or by mail from the Arizona unit 6 (San Francisco River Subbasin) plans considered in previous critical Ecological Services Office (see FOR for loach minnow by adding 22.8 km habitat exclusions for spikedace and FURTHER INFORMATION CONTACT). (14.2 mi) to the San Francisco River. In loach minnow are available through the Background addition, we are proposing 31.4 km contact information listed in FOR (19.5 mi) of Bear Creek for loach FURTHER INFORMATION CONTACT. It is our intent to discuss only those minnow in Grant County, New Mexico. (10) Information on the projected and topics directly relevant to the This would be an addition to critical reasonably likely impacts of climate designation of critical habitat for the habitat unit 8 (Gila River subbasin). The change on spikedace and loach minnow spikedace and loach minnow in this explanation for these proposed changes and on the critical habitat areas we are document. For more information on are discussed below. The October 28, proposing. previous Federal actions concerning the 2010, proposal had a 60-day comment If you submitted comments or spikedace and loach minnow, refer to period, ending December 27, 2010. We information on the proposed rule (75 FR the proposed designation of critical received two requests for public 66482) during the initial comment habitat published in the Federal hearing, and have scheduled a public period from October 28, 2010, to Register on October 28, 2010 (75 FR hearing on the date specified above in December 27, 2010, please do not 66482). For more information on the DATES and at the location specified resubmit them. We will incorporate spikedace and loach minnow or their above in ADDRESSES. We will submit for them into the public record as part of habitat, refer to the final listing rule publication in the Federal Register a this comment period, and we will fully published in the Federal Register on (51 final critical habitat designation for consider them in the preparation of our FR 23769, July 1, 1986 (spikedace), and spikedace and loach minnow on or final determination. Our final 51 FR 39468, October 28, 1986 (loach before October 28, 2011. determination concerning critical minnow), and the previous critical We are notifying the public of several habitat will take into consideration all habitat designation (72 FR 13356, March changes made to the proposed listing written comments and any additional 21, 2007), which are available online rule. First, in the proposed rule, we information we receive during both from the Arizona Ecological Services defined occupied areas as those streams comment periods. On the basis of public Office (see FOR FURTHER INFORMATION for which we have species records up to comments, we may, during the CONTACT). The recovery plans for 1986, when they were first listed (51 FR development of our final determination, spikedace and loach minnow were both 39468, October 28, 1986, for loach find that areas proposed are not finalized in 1991, and we have initiated minnow; and 51 FR 23769, July 1, 1986, essential, are appropriate for exclusion updates and revisions for both plans. for spikedace), as well as areas under section 4(b)(2) of the Act, or are On December 20, 2005, we published determined to be occupied since listing. not appropriate for exclusion. a proposed critical habitat designation To improve clarity, we are revising the

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definition. We propose to include as variation, which is important for minnow are known to persist. After the occupied those areas which were species’ fitness and adaptive capability. receipt of agency and public comments identified as occupied for each species Our inability to identify unoccupied and our internal review, we have also in the original listing documents, as streams that would provide connections been made aware of loach minnow well as any additional areas determined between occupied areas is a result of the records in Bear Creek from 2006. Bear to be occupied after 1986. Our reasoning highly degraded condition of Creek would be categorized as a 1a for the inclusion of these additional unoccupied habitat and the uncertainty stream under the ruleset found in the areas (post-1986) is that it is likely that of stream corridor restoration potential. proposed rule because of the records of those areas were occupied at the time of We also acknowledge that other areas, loach minnow from 2005 and 2006. the original listings, but had not been outside of the critical habitat Given the presence of loach minnow in detected in surveys. This change in designation, may be necessary for long- the upper portion of Bear Creek, in this definition does not result in a change to term conservation. These areas will be revised proposed rule in unit 8, we any of the areas included or excluded as subject to future on-the-ground recovery propose to include 31.4 km (19.5 mi) of critical habitat in the proposed rule, and actions and opportunities under section Bear Creek from the confluence with the the total amount designated as critical 7(a)(1) of the Act. Furthermore, we will Gila River upstream to the confluence habitat will not change, except for the address the issue of restoration of with Sycamore and North Fork Walnut addition of critical habitat along the San genetic exchange in our revised creeks. We recognize that portions of Francisco River discussed below. Recovery Plan. this stream are intermittent, but also However, some of the areas previously Third, we would like to correct an acknowledge that streams with identified as occupied habitat in the error we made in the October 28, 2010, intermittent flows can function as proposed rule may now be classified as proposed rule. The error is within Unit connective corridors through which the essential unoccupied habitat. 6 (San Francisco River Subbasin), and species may move when the area is Second, we would like to provide applies to the amount of stream miles wetted. We will continue to solicit clarification regarding the criteria that designated as critical habitat for loach additional information on this stream we used to identify critical habitat in minnow on the San Francisco River. On segment during the open comment our proposed rule. We based our pp. 66515, 66533 (legal description), period to aid us in making a criteria, in part, on a preliminary and 66534 (map), we state that 181.0 km determination of the suitability of assessment of steps necessary to achieve (112.3 mi) of the San Francisco River, including this stream in the final rule. recovery of spikedace and loach from the confluence with the Gila River We have a final clarification on the minnow. We refer to these criteria as a in Greenlee County, Arizona, upstream language used in our proposed rule. ruleset and the elements are described to the confluence with the Tularosa Under the Act and its implementing in the ‘‘Criteria Used to Identify Critical River in Catron County, New Mexico, is regulations, we are required to identify Habitat’’ section of the proposed rule included in the designation. We the physical and biological features (October 28, 2010, 75 FR 66482). One of intended to use the same area described (PBFs) essential to the conservation of the criteria used evaluates the potential in the 2007 final rule (72 FR 13356); that spikedace and loach minnow in areas of a stream segment to ‘‘connect to other is, 203.5 km (126.5 mi) of the San occupied at the time of listing, focusing occupied areas, which will enhance Francisco River, from the confluence on the features’ primary constituent genetic exchange between populations.’’ with the Gila River upstream to the elements (PCEs). We consider PCEs to In the proposed rule, we identified the mouth of the Box, a canyon above the be the elements of physical and following three segments under this town of Reserve in Catron County, New biological features that, when laid out in criterion: Granite Creek in the Verde Mexico. This will add 22.8 km (14.2 mi) the appropriate quantity and spatial River Subbasin for both species; and to the current designation for loach arrangement to provide for a species’ Deer Creek and Turkey Creek for loach minnow. The total amount of designated life-history processes, are essential to minnow in the San Pedro Subbasin. habitat for loach minnow is 1,164 km the conservation of the species. We After additional review, we conclude (723 mi), rather than the 1,141 km (709 outline the appropriate quantities and that these three segments do not connect mi) referred to in the October 28, 2010, spatial arrangements of the elements in to other occupied areas, and there are no proposed rule. The unit descriptions, the Physical and Biological Features other unoccupied stream segments in legal description, and map will be (PBFs) section of the October 28, 2010, the proposed rule that connect occupied corrected in the final rule. The stream proposed rule. For example, spawning habitats. At this time, we are unable to miles (181.0 km (112.3)) of the San substrate would be considered an identify other areas that could serve as Francisco River designated for essential feature, while the specific connective corridors between occupied spikedace will remain the same. composition (sand, gravel, and cobble) and unoccupied habitat. Therefore, we Fourth, we are going to propose an and level of embeddedness are the are removing this criterion as an additional stream segment in New elements (PCEs) of that feature. element of the rule set. The removal of Mexico for loach minnow. In our Section 3 of the Act defines critical this criterion does not alter the October 28, 2010, proposed rule, Bear habitat as the specific areas within the proposed rule or the amount of critical Creek in Grant County, New Mexico, geographical area occupied by a species, habitat being proposed, except for the was not included in the proposed at the time it is listed in accordance revision within unit 6, as the areas critical habitat designation. Although with the Act, on which are found those proposed meet one or more of the we had records of loach minnow physical or biological features essential remaining criteria outlined in the occurrence in Bear Creek in 2005, we to the conservation of the species and ruleset. concluded that most of the stream was that may require special management We acknowledge the absence of intermittent and that loach minnow considerations or protection, and connective corridors in the proposed were not likely to persist there over specific areas outside the geographical designation. We continue to believe that time. We also concluded that the loach area occupied by a species at the time both loach minnow and spikedace minnow in Bear Creek likely moved it is listed, upon a determination that conservation will require genetic upstream during a period of high flow such areas are essential for the exchange between the remaining when Bear Creek was temporarily conservation of the species. If the populations to allow for genetic connected to the Gila River where loach proposed rule is made final, section 7 of

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the Act will prohibit destruction or impacts that are reasonably likely to National Marine Fisheries Service’s adverse modification of critical habitat occur as a result of the critical habitat 1986 joint regulations implementing the by any activity funded, authorized, or designation. The identification of the interagency consultation provisions of carried out by any Federal agency. probable incremental effects of a critical section 7 of the Act (50 CFR 402). Those Federal agencies proposing actions habitat designation involves comparing regulations govern the assessment of affecting critical habitat must consult the economic and other relevant Federal actions that may have adverse with us on the effects of their proposed impacts that would be present without impacts on listed species or their critical actions, under section 7(a)(2) of the Act. the designation of a particular area as habitat. They interpret and implement critical habitat with what would be the statute’s prohibitions against actions Consideration of Impacts Under Section expected if the particular area is that are likely to jeopardize the 4(b)(2) of the Act included in the designation—in other continued existence of listed species or Section 4(b)(2) of the Act requires that words, a comparison of the world with result in destruction or adverse we designate or revise critical habitat and without critical habitat. A key modification of critical habitat. based upon the best scientific data aspect of this comparison requires However, two key definitions available, after taking into consideration identifying, at a general level, the (‘‘jeopardize the continued existence of’’ the economic impact, impact on additional protections for species (e.g., and ‘‘destruction or adverse national security, or any other relevant project modification or conservation modification’’) had been defined in a impact of specifying any particular area measures) or changes in behavior (e.g., similar manner in that they each as critical habitat. We may exclude an increased awareness that may result in evaluated impacts on both survival and area from critical habitat if we reinitiations of consultation, or recovery of a species. determine that the benefits of excluding additional consultations, under section Moreover, our general practice had the area outweigh the benefits of 7 of the Act; compliance with other laws been to infrequently designate critical including the area as critical habitat, such as State environmental oversight habitat in areas where the species was provided such exclusion will not result regulations) and the corresponding costs not currently present; because in the extinction of the species. and impacts to society that may result consultation under the jeopardy When considering the benefits of as a consequence of the critical habitat standard can occur wherever the species inclusion for an area, we consider the designation. The scope of probable is present, this limited the additional regulatory benefits that area impacts, then, is inevitably determined circumstances in which a consultation would receive from the protection from by the purpose and function of critical under the adverse-modification adverse modification or destruction as a habitat as understood at the time of standard would take place without a result of actions with a Federal nexus designation and the conservation concomitant consultation under the (activities conducted, funded, measures in place prior to the jeopardy standard. Because the section permitted, or authorized by Federal designation for the particular species 7 prohibition against Federal agency agencies), the educational benefits of and its habitat. actions that may result in ‘‘destruction mapping areas containing essential The Service traditionally understood or adverse modification’’ is the most features that aid in the recovery of the the first sentence of section 4(b)(2) of significant and direct protection listed species, and any benefits that may the Act to require consideration of only afforded by a critical habitat result from designation due to State or those impacts that are solely attributable designation, equating the two standards Federal laws that may apply to critical to—that would not occur ‘‘but for’’—the while making them occur in habitat. proposed critical habitat designation. conjunction with each other made it When considering the benefits of Under this approach, known as the practically impossible to distinguish the exclusion, we consider, among other ‘‘incremental effects analysis’’ protections stemming from critical things, whether exclusion of a specific (otherwise referred to by the courts as habitat (i.e., incremental effects) from area is likely to result in conservation; the ‘‘baseline approach’’), the Service those afforded a species by it being the continuation, strengthening, or isolates the probable impacts that would listed as an endangered or threatened encouragement of partnerships; or result solely from the designation species (i.e., baseline effects). implementation of a management plan. (incremental effects) from those that As a result, case law significantly The final decision on whether to stem also from other causes, such as the influenced the Service’s methodology exclude any areas will be based on the underlying listing determination or for evaluating the probable economic best scientific data available at the time other conservation measures being effects of a critical habitat designation. of the final designation, including implemented for the species and its In 2001, the United States Court of information obtained during the habitat (baseline effects). Once Appeals for the Tenth Circuit held that, comment period and information about identified, the resulting incremental in light of the narrow role reserved for the economic impact of designation. effects of the designation are then used critical habitat under the regulations Accordingly, we have prepared a draft in the balancing analysis, if one is and the Service’s view at the time, the economic analysis (DEA) concerning the conducted, under the second sentence Service was legally precluded from proposed critical habitat designation, of section 4(b)(2) for evaluating the relying on the incremental-effects which is available for review and benefits of including a particular area approach. New Mexico Cattle Growers comment (see ADDRESSES). in, or excluding it from, critical habitat, Ass’n v. United States Fish & Wildlife and for evaluating compliance with the Serv., 248 F.3d 1277, 1283–85 (10th Cir. Draft Economic Analysis required determinations. 2001). The court specifically identified To consider the economic impacts ‘‘of However, the application of this the source of the problem as being specifying any particular area as critical relatively straightforward paradigm had ‘‘FWS’s long held policy position that habitat,’’ as section 4(b)(2) of the Act become problematic by the late 1990s, [critical habitat determinations] are requires, the Service must first identify in light of our interpretations and unhelpful, duplicative, and the probable economic impacts that practices that had the effect of unnecessary.’’ The court held that this stem from a designation (50 CFR minimizing the role of critical habitat in position was rooted in the 424.19). We have interpreted ‘‘probable safeguarding species’ recovery. This interpretations of the ‘‘jeopardy economic impacts’’ to be those potential stemmed in part from the Service’s and standard’’ and the ‘‘adverse

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modification standard’’ in 50 CFR the incremental effects (baseline that are incremental to, or result solely 402.02, which the court saw as being approach) in 2001 no longer applied, from, the designation itself. The Service defined either to be ‘‘virtually identical’’ and that our consideration of ‘‘but for’’ also believes that the use of an or such that the latter was subsumed impacts in the increment above the incremental-effects analysis is sufficient into the ‘‘jeopardy standard.’’ baseline is permissible under the Act to fulfill the requirement under section To satisfy section 4(b)(2) of the Act in (Arizona Cattle Growers Ass’n v. 4(b)(2) of the Act. However, given that light of the then-current regulations, the Salazar, 606 F.3d 1160, 1173 (9th Cir. we do not have a new definition of court ruled that the Service must 2010). It, therefore, held, in light of this ‘‘destruction or adverse modification,’’ consider all impacts that stem in any change in circumstances, that ‘‘the FWS there may be certain circumstances way from the proposed critical habitat may employ the baseline approach in where we may want to evaluate impacts designation, even if they are also analyzing a critical habitat designation.’’ beyond those that are solely partially caused (or, caused In so holding, the court noted that the incremental. Such is the case with ‘‘coextensively’’) by listing. In other baseline approach is ‘‘more logical spikedace and loach minnow, where we words, even if there was no ‘‘but for’’ than’’ the coextensive approach. The have extensive case law and economic impact as a result of critical Ninth Circuit further reaffirmed its determinations of effects that suggest we habitat designation, the Service was still conclusion in Home Builders Ass’n of evaluate not only incremental effects, required to consider the coextensive Northern California v. U.S. Fish & but also coextensive effects. While we economic impacts. The court did not Wildlife Serv. 616 F.3d 983 (9th Cir. think that the incremental effects define ‘‘coextensive’’ economic analysis; 2010), in which plaintiffs challenged the approach is appropriate and meets the however, the Services interpreted use of the Service’s incremental-effects intent of the Act, we have taken a ‘‘coextensive’’ to be the sum of (baseline) approach. The Court held that conservative approach in this instance anticipated baseline and incremental the Service properly analyzed the to ensure that we are fully evaluating economic impacts. As a consequence, economic impacts of the critical habitat the probable effects of this designation. following the New Mexico Cattle designation for vernal pool species and The Service attempted to clarify the Growers decision, the Service began to stated that the plain language of the Act difference between the jeopardy and apply a coextensive approach that directs the agency to consider only adverse modification standards for the evaluated all costs related to the those impacts caused by the critical spikedace and loach minnow critical conservation of the species and its habitat designation itself. habitat in our Incremental Effects habitat, including those attributed to the In 2008, the Solicitor for the Memorandum. This memorandum species being listed as an endangered or Department of the Interior drafted a outlined typical conservation actions, threatened species. Memorandum Opinion summarizing project modifications, and minimization Meanwhile, other courts began to case law on the Secretary’s authority to measures that would be requested by conclude that the definition of exclude areas from a critical habitat the Service to meet the ‘‘not likely to ‘‘destruction or adverse modification’’ designation under section 4(b)(2) of the destroy or adversely modify’’ standard, in the 1986 regulations did not Act, including the appropriate use of above what would be requested to avoid adequately fulfill the statute’s economic analyses in critical habitat jeopardy to the species. This evaluation conservation purpose. In fact, the Ninth determinations. [Department of the of the incremental effects as outlined in Circuit in Gifford Pinchot Task Force v. Interior Solicitor Memorandum, October the Incremental Effects Memorandum U.S. Fish & Wildlife Service, 378 F.3d 3, 2008, The Secretary’s Authority to has been used as the basis to develop 1059 (9th Cir.), modified, 387 F.3d 968 Exclude Areas from a Critical Habitat the draft economic analysis of this (9th Cir. 2004), invalidated the Designation under Section 4(b)(2) of the proposed designation of critical habitat. regulatory definition of ‘‘destruction or Endangered Species Act (Opinion M– The purpose of the draft economic adverse modification.’’ Following the 37016)] In this opinion, the Solicitor analysis is to identify and analyze the Ninth Circuit’s decision, most district concluded that— probable incremental economic impacts court decisions have rejected associated with the proposed critical coextensive economic analyses. For the reasoning in the Cape Hatteras line of habitat designation for the spikedace cases persuasive for the proposition that ‘‘to example, the court in Cape Hatteras find the true cost of a designation, the world and loach minnow. The analysis focuses Access Pres. Alliance v DOI, 344 F. with the designation must be compared to on quantification of the incremental Supp. 2d 108, 128–30 (D.D.C. 2004) the world without it.’’ Cape Hatteras, 344 F. costs of this rulemaking, but provides (Cape Hatteras) found that an Supp. 2d at 130. The purpose of excluding information on expected costs of evaluation of the incremental effect of a an area from critical habitat is to avoid the conservation efforts expected to occur critical habitat designation was impacts of the designation, or to realize the under the regulatory baseline as context. reasonable and permissible. In that benefits that the Secretary determines will The ‘‘incremental’’ economic impacts decision the court stated, ‘‘[t]he baseline flow from that exclusion. Benefits of are those not expected to occur absent exclusion are often in the form of avoiding approach is a reasonable method for a cost imposed by the designation. By the designation of critical habitat for the assessing the actual costs of a particular definition, when impacts are completely spikedace and loach minnow. For a critical habitat designation. To find the ‘‘coextensive’’, ‘‘such that they will occur further description of the methodology true cost of a designation, the world even if the area is not designated, any ‘‘cost’’ of the analysis, see Chapter 2, with the designation must be compared imposed by the designation will not be ‘‘Framework for Analysis,’’ of the draft to the world without it. * * * In order avoided if the area at issue is excluded. economic analysis. to calculate the costs above the baseline, Therefore, exclusion of the area based on The draft economic analysis provides those that are the ‘‘but for’’ result of such costs would serve no purpose. estimated costs of the reasonably designation, the agency may need to Consistent with recent case law and probable incremental economic impacts consider the economic impact of listing the 2008 Solicitors Memorandum of the proposed critical habitat and other events that contribute to and Opinion, the Service concludes that the designation for the spikedace and loach fall below the baseline.’’ appropriate analysis to consider minnow over the next 20 years, which Similarly, in 2010, the Ninth Circuit economic impacts of a critical habitat was determined to be the appropriate concluded that the faulty underlying designation is to limit the evaluation of period for analysis because limited premises that led to the invalidation of the probable economic effects to those planning information is available for

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most activities to forecast activity levels expected to provide baseline protections we receive during the comment period for projects beyond a 20-year timeframe. to the spikedace and loach minnow. on the environmental consequences It also notes that the timeframe over (2) $0.1 million to $2.6 million resulting from our designation of critical which certain future impacts can be (annualized at a seven percent discount habitat. rate) related to grazing-related forecast may be a shorter period. The Required Determinations—Amended draft economic analysis quantifies conservation efforts, including riparian economic impacts of spikedace and fencing construction and maintenance. In our proposed rule, we indicated loach minnow conservation efforts (3) $1.7 to $3.0 million (annualized at that we would defer our determination associated with the following categories a seven percent discount rate) in other of compliance with several statutes and of activity: species management efforts, including executive orders until the information (1) Water management: Including activities undertaken by the U.S. Bureau concerning potential economic impacts agricultural, municipal, and industrial of Reclamation, the Arizona Game and of the designation and potential effects water diversions. Other affected Fish Department, and the New Mexico on landowners and stakeholders became activities may include flood control and Department of Game and Fish. available in the DEA and the draft dam operation and maintenance. As we stated earlier, we are soliciting environmental assessment. We have (2) Grazing: Particularly, increased data and comments from the public on now made use of the DEA data to make sedimentation and erosion related to the draft economic analysis, as well as these initial determinations. In this grazing on Bureau of Land Management all aspects of the proposed rule and our document, we affirm the information in and U.S. Forest Service lands. amended required determinations. We our proposed rule concerning Executive (3) Mining: In particular, copper may revise the proposed rule or Order (E.O.) 12866 (Regulatory Planning mining operations along Eagle Creek supporting documents to incorporate or and Review), E.O. 13132 (Federalism), previously have expressed concerns address information we receive during E.O. 12988 (Civil Justice Reform), E.O. about the potential for critical habitat the public comment period. In 13211 (Energy, Supply, Distribution, designation to affect ongoing operations. particular, we may exclude an area from and Use), the Unfunded Mandates (4) Species management: Including critical habitat if we determine that the Reform Act (2 U.S.C. 1501 et seq.), the installation of fish barriers, native benefits of excluding the area outweigh Paperwork Reduction Act of 1995 (44 species recovery, annual monitoring, the benefits of including the area, U.S.C. 3501 et seq.), and the President’s and impacts to sportfishing. provided the exclusion will not result in memorandum of April 29, 1994, (5) Residential and commercial the extinction of this species. ‘‘Government-to-Government Relations with Native American Tribal development: Including construction in Draft Environmental Assessment riparian areas and runoff from roads and Governments’’ (59 FR 22951). However, golf courses. The purpose of this draft EA, based on the DEA data and the draft (6) Transportation: Particularly prepared pursuant to the National environmental assessment, we are construction and maintenance of Environmental Policy Act (NEPA), is to amending our required determination bridges, roads, and culverts. identify and disclose the environmental concerning the Regulatory Flexibility (7) Fire Management. Including consequences resulting from the Act (5 U.S.C. 601 et seq.), E.O. 12630 increased ash, change in water proposed action of designating critical (Takings), and National Environmental temperature, debris flows, and the use habitat for the spikedace and loach Policy Act (42 U.S.C. 4321 et seq.). of chemical flame retardants. minnow. In the draft EA, three The draft economic analysis also alternatives are evaluated: Alternative Regulatory Flexibility Act describes various concerns expressed by A, the proposed rule with exclusion Under the Regulatory Flexibility Act, Arizona Tribes concerning possible areas; Alternative B, proposed rule as amended by the Small Business restrictions on their water rights or without exclusion areas; and the no Regulatory Enforcement Fairness Act (5 water management, but does not action alternative. Under Alternative A, U.S.C. 802(2)), whenever an agency is quantify potential tribal impacts, except critical habitat segments flowing required to publish a notice of additional administrative costs. through tribal and other lands could rulemaking for any proposed or final Total incremental impacts for all of potentially be excluded in the final rule rule, it must prepare and make available the above activities are estimated to be based on economic impact, national for public comment a regulatory $2.29 to $47.2 million over 20 years security, or other relevant impacts. The flexibility analysis that describes the ($202,000 to $4.16 million annually) potential exclusion areas discussed in effect of the rule on small entities (i.e., using a real rate of seven percent. the proposed rule include stream small businesses, small organizations, However, as discussed above, we are segments that flow through Yavapai- and small government jurisdictions). taking a more conservative approach in Apache, White Mountain Apache, and However, no regulatory flexibility that we are also evaluating coextensive San Carlos tribal lands and through analysis is required if the head of an effects (the sum of baseline and lands owned by Freeport-McMoRan. agency certifies the rule will not have a incremental effects). Coextensive effects Alternative B is the current proposal, significant economic impact on a are estimated to be $75.29 to $169.2 and the no action alternative is substantial number of small entities. million over 20 years ($6.602 to $15.16 equivalent to the 2007 final rule Based on our DEA of the proposed million annualized) using a real rate of designating critical habitat for spikedace designation, we provide our analysis for seven percent. Quantified baseline costs and loach minnow. The no action determining whether the proposed rule are primarily associated with: alternative is required by NEPA for would result in a significant economic (1) Water conservation and protection comparison to the other alternatives impact on a substantial number of small measures that are currently ongoing at analyzed in the draft EA. entities. Based on comments we receive, Fort Huachuca related to the San Pedro As we stated earlier, we are soliciting we may revise this determination as part River unit ($4.4 million, annualized at data and comments from the public on of our final rulemaking. a seven percent discount rate). Many of the draft EA, as well as all aspects of the According to the Small Business these actions have been undertaken at proposed rule. We may revise the Administration, small entities include the Fort to be protective of the proposed rule or supporting documents small organizations, such as Huachuca water umbel, but are to incorporate or address information independent nonprofit organizations;

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small governmental jurisdictions, incremental impacts are anticipated for seq.) in connection with designating including school boards and city and mining, species management, critical habitat under the Act. We town governments that serve fewer than transportation, or fire management published a notice outlining our reasons 50,000 residents; and small businesses activities. The DEA concluded that for this determination in the Federal (13 CFR 121.201). Small businesses incremental impacts may be borne by Register on October 25, 1983 (48 FR include manufacturing and mining water management, grazing, and 49244). This position was upheld by the concerns with fewer than 500 development activities. The analysis U.S. Court of Appeals for the Ninth employees, wholesale trade entities estimates that 92 small entities may be Circuit (Douglas County v. Babbitt, 48 with fewer than 100 employees, retail affected by the rule, each with estimated F.3d 1495 (9th Cir. 1995), cert. denied and service businesses with less than $5 revenues ranging from $750,000 to $6.4 516 U.S. 1042 (1996)).] However, when million in annual sales, general and million per entity. Depending on the the range of the species includes States heavy construction businesses with less activity, annualized impacts may within the Tenth Circuit, such as that of than $27.5 million in annual business, represent between 0 percent and 1.18 the Spikedace and Loach minnow, special trade contractors doing less than percent of annual revenues. Please refer under the Tenth Circuit ruling in Catron $11.5 million in annual business, and to the DEA of the proposed critical County Board of Commissioners v. U.S. agricultural businesses with annual habitat designation for a more detailed Fish and Wildlife Service, 75 F.3d 1429 sales less than $750,000. To determine discussion of potential economic (10th Cir. 1996), we will undertake a if potential economic impacts to these impacts. NEPA analysis for critical habitat small entities are significant, we In summary, we have considered designation. In accordance with the considered the types of activities that whether the proposed designation Tenth Circuit, we have completed a might trigger regulatory impacts under would result in a significant economic draft environmental assessment to this designation as well as types of impact on a substantial number of small identify and disclose the environmental project modifications that may result. In entities. Information for this analysis consequences resulting from the general, the term ‘‘significant economic was gathered from the Small Business proposed designations of critical habitat impact’’ is meant to apply to a typical Administration, stakeholders, and the for the Spikedace and Loach minnow. small business firm’s business Service. For the above reasons and Our preliminary determination is that operations. based on currently available the designations of critical habitat for To determine if the proposed information, we certify that, if the Spikedace and Loach minnow designation of critical habitat for the promulgated, the proposed designation would not have direct impacts on the spikedace and loach minnow would would not have a significant economic environment. However, we will further affect a substantial number of small impact on a substantial number of small evaluate this issue as we complete our entities, we considered the number of business entities. Therefore, an initial final environmental assessment. small entities affected within particular regulatory flexibility analysis is not types of economic activities, such as required. List of Subjects in 50 CFR Part 17 mining, species management, Takings—Executive Order 12630 Endangered and threatened species, transportation, and fire management In accordance with E.O. 12630 Exports, Imports, Reporting and activities, water management, grazing, recordkeeping requirements, and development. In order to determine (Government Actions and Interference Transportation. whether it is appropriate for our agency with Constitutionally Protected Private to certify that this rule would not have Property Rights), we have analyzed the Regulation Promulgation a significant economic impact on a potential takings implications of Accordingly, we propose to further substantial number of small entities, we designating critical habitat for the amend part 17, subchapter B of chapter considered each industry or category Spikedace and Loach minnow in a I, title 50 of the Code of Federal individually. In estimating the numbers takings implications assessment. Critical Regulations, as proposed to be amended of small entities potentially affected, we habitat designations do not affect also considered whether their activities landowner actions that do not require at 75 FR 66482, October 28, 2010, as have any Federal involvement. Critical Federal funding or permits, nor do they follows: habitat designation will not affect preclude development of habitat PART 17—ENDANGERED AND activities that do not have any Federal conservation programs or issuance of THREATENED WILDLIFE AND PLANTS involvement; designation of critical incidental take permits to allow actions habitat only affects activities conducted, that do require Federal funding or 1. The authority citation for part 17 funded, permitted, or authorized by permits to go forward. The takings continues to read as follows: Federal agencies. In areas where the implications assessment concludes that Authority: 16 U.S.C. 1361–1407; 16 U.S.C. species are present, Federal agencies these proposed designations of critical 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– already are required to consult with us habitat do not pose significant takings 625, 100 Stat. 3500; unless otherwise noted. under section 7 of the Act on activities implications for lands within or affected they fund, permit, or implement that by the designations. However, we will 2. Amend § 17.95(e), in the entry for may affect the species. If we finalize this further evaluate this issue as we ‘‘Loach minnow (Tiaroga cobitis),’’ by proposed critical habitat designation, complete our final economic analysis, revising paragraphs (6), (12)(i) and (v), consultations to avoid the destruction or and review and revise this assessment and (14)(vi) and by adding paragraph adverse modification of critical habitat as appropriate. (14)(vii) to read as follows: would be incorporated into the existing § 17.95 Critical habitat—fish and wildlife. consultation process. National Environmental Policy Act In the DEA, we evaluated the (NEPA) * * * * * potential economic effects on small It is our position that, outside the (e) Fishes. entities resulting from implementation jurisdiction of the U.S. Court of Appeals * * * * * of conservation actions related to the for the Tenth Circuit, we do not need to proposed designation of critical habitat prepare environmental analyses as Loach minnow (Tiaroga cobitis) for the spikedace and loach minnow. No defined by NEPA (42 U.S.C. 4321 et * * * * *

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(6) Note: Index map for loach minnow critical habitat units follows: BILLING CODE 4310–55–P

* * * * * the confluence with the Gila River in upstream to Township 6 South, Range (12) * * * Arizona in Township 5 South, Range 29 19 West, section 2 in New Mexico. (i) San Francisco River for East, southeast quarter of section 21 * * * * * approximately 202.6 km (125.9 mi) of (v) Note: Map of Unit 6, San Francisco the San Francisco River extending from Subbasin, follows:

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* * * * * Township 15 South, Range 17 West, South, Range 15 West, northeast quarter (14) * * * center of section 33 upstream to the of section 15. (vi) Bear Creek for approximately 31.4 confluence with Sycamore and North (vii) Note: Map of Unit 8, Gila River km (19.5 mi) extending from the Fork Walnut creeks at Township 16 Subbasin, follows: confluence with the Gila River at

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* * * * * Authority Dated: September 20, 2011. The authority for this action is the Rachel Jacobson, Endangered Species Act of 1973 (16 Acting Assistant Secretary for Fish and U.S.C. 1531 et seq.). Wildlife and Parks. [FR Doc. 2011–25083 Filed 10–3–11; 8:45 am] BILLING CODE 4310–55–C

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Notices Federal Register Vol. 76, No. 192

Tuesday, October 4, 2011

This section of the FEDERAL REGISTER introduced into and spread within the Thailand and accompanied by a contains documents other than rules or United States. phytosanitary certificate (PC) attesting proposed rules that are applicable to the Section 319.56–4 of the regulations that the fruit received the required public. Notices of hearings and investigations, contains a performance-based process irradiation treatment. committee meetings, agency decisions and for approving the importation of • If the irradiation treatment is to be rulings, delegations of authority, filing of commodities that, based on the findings petitions and applications and agency applied upon arrival in the United statements of organization and functions are of a pest risk analysis (PRA), can be States, each consignment of fruit must examples of documents appearing in this safely imported subject to one or more be inspected by the NPPO of Thailand section. of the designated phytosanitary prior to departure and accompanied by measures listed in paragraph (b) of that a PC. section. Under that process, APHIS • This commodity is subject to DEPARTMENT OF AGRICULTURE publishes a notice in the Federal inspection at the U.S. port of entry. Register announcing the availability of These conditions will be listed in the Animal and Plant Health Inspection the PRA that evaluates the risks Fruits and Vegetables Import Service associated with the importation of a Requirements database (available at particular fruit or vegetable. Following http://www.aphis.usda.gov/favir). In [Docket No. APHIS–2011–0047] the close of the 60-day comment period, addition to these specific measures, APHIS may authorize the importation of dragon fruit from Thailand will be Notice of Decision To Authorize the the fruit or vegetable subject to the subject to the general requirements Importation of Dragon Fruit From identified designated measures if: (1) No listed in § 319.56–3 that are applicable Thailand Into the Continental United comments were received on the PRA; (2) to the importation of all fruits and States the comments on the PRA revealed that vegetables. Further, for fruits and no changes to the PRA were necessary; vegetables requiring treatment as a AGENCY: Animal and Plant Health or (3) changes to the PRA were made in condition of entry, the phytosanitary Inspection Service, USDA. response to public comments, but the treatments regulations in 7 CFR part 305 ACTION: Notice. changes did not affect the overall contain administrative and procedural conclusions of the analysis and the requirements that must be observed in SUMMARY: We are advising the public of Administrator’s determination of risk. our decision to authorize the connection with the application and In accordance with that process, we certification of specific treatments. importation into the continental United published a notice 1 in the Federal States of dragon fruit (multiple genera Register on June 30, 2011 (76 FR 38349, Authority: 7 U.S.C. 450, 7701–7772, and and species) from Thailand. Based on 7781–7786; 21 U.S.C. 136 and 136a; 7 CFR Docket No. APHIS–2011–0047), in 2.22, 2.80, and 371.3. the findings of a pest risk analysis, which we announced the availability, which we made available to the public for review and comment, of a PRA that Done in Washington, DC, this 28th day of for review and comment through a evaluates the risks associated with the September 2011. previous notice, we believe that the importation into the continental United Kevin Shea, application of one or more designated States of dragon fruit (multiple genera Acting Administrator, Animal and Plant phytosanitary measures will be and species) from Thailand. We Health Inspection Service. sufficient to mitigate the risks of solicited comments on the notice for 60 [FR Doc. 2011–25489 Filed 10–3–11; 8:45 am] introducing or disseminating plant pests days ending on August 29, 2011. We did BILLING CODE 3410–34–P or noxious weeds via the importation of not receive any comments by that date. dragon fruit from Thailand. Therefore, in accordance with the DATES: Effective Date: October 4, 2011. regulations in § 319.56–4(c)(2)(ii), we DEPARTMENT OF AGRICULTURE are announcing our decision to FOR FURTHER INFORMATION CONTACT: Ms. Animal and Plant Health Inspection authorize the importation into the Claudia Ferguson, Regulatory Policy Service Specialist, Regulations, Permits, and continental United States of dragon fruit Manuals, PPQ, APHIS, 4700 River Road from Thailand subject to the following [Docket No. APHIS–2011–0039] Unit 133, Riverdale, MD 20737–1236; phytosanitary measures: • (301) 734–0754. The dragon fruit may be imported Notice of Decision To Authorize the into the continental United States in Importation of Fresh Apricot, Sweet SUPPLEMENTARY INFORMATION: commercial consignments only. Cherry, and Plumcot Fruit From South Background • The dragon fruit must be irradiated Africa Into the Continental United in accordance with 7 CFR part 305 with States Under the regulations in ‘‘Subpart— a minimum absorbed dose of 400 Gy. Fruits and Vegetables’’ (7 CFR 319.56– • If the irradiation treatment is AGENCY: Animal and Plant Health 1 through 319.56–51, referred to below applied outside the United States, each Inspection Service, USDA. as the regulations), the Animal and consignment of fruit must be jointly ACTION: Notice. Plant Health Inspection Service (APHIS) inspected by APHIS and the national SUMMARY: of the U.S. Department of Agriculture plant protection organization (NPPO) of We are advising the public of prohibits or restricts the importation of our decision to authorize the fruits and vegetables into the United 1 To view the notice and the PRA, go to http:// importation into the continental United States from certain parts of the world to www.regulations.gov/#!docketDetail;D=APHIS– States of fresh apricot, sweet cherry, and prevent plant pests from being 2011–0047. plumcot fruit from South Africa. Based

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on the findings of a pest risk analysis, with the importation into the We are also updating the PPQ which we made available to the public continental United States of fresh Treatment Manual as discussed earlier for review and comment through a apricot, sweet cherry, and plumcot fruit in this document. previous notice, we believe that the from South Africa. The pest risk The phytosanitary conditions listed application of one or more designated analysis consisted of a risk assessment above will also be listed in the Fruits phytosanitary measures will be identifying pests of quarantine and Vegetables Import Requirements sufficient to mitigate the risks of significance that could follow the database (available at http:// introducing or disseminating plant pests pathway of importation of fresh apricot, www.aphis.usda.gov/favir). In addition or noxious weeds via the importation of sweet cherry, and plumcot fruit from to these specific measures, fresh apricot, fresh apricot, sweet cherry, and plumcot South Africa into the United States and sweet cherry, and plumcot fruit from fruit from South Africa. We are also a risk management document South Africa will be subject to the revising a treatment schedule in the identifying phytosanitary measures to general requirements listed in § 319.56– Plant Protection and Quarantine be applied to those commodities to 3 that are applicable to the importation Treatment Manual. mitigate the pest risk. In accordance of all fruits and vegetables. Further, for DATES: Effective Date: November 3, with 7 CFR 305.3(a)(1), we also fruits and vegetables requiring treatment 2011. provided notice that we had determined as a condition of entry, the that it was necessary to revise treatment phytosanitary treatment regulations in 7 FOR FURTHER INFORMATION CONTACT: Ms. schedule T107–e in the Plant Protection CFR part 305 contain administrative and Dorothy C. Wayson, Senior Regulatory and Quarantine (PPQ) Treatment procedural requirements that must be Coordination Specialist, Regulations, Manual 2 to include plumcots among the observed in connection with the Permits, and Manuals, PPQ, APHIS, commodities to which that treatment application and certification of specific 4700 River Road Unit 141, Riverdale, schedule may be applied and the treatments. MD 20737; (301) 734–0772. Mediterranean and the Bezzi fruit fly Authority: 7 U.S.C. 450, 7701–7772, and SUPPLEMENTARY INFORMATION: among the pests it is intended to 7781–7786; 21 U.S.C. 136 and 136a; 7 CFR Background eliminate. We solicited comments on 2.22, 2.80, and 371.3. the notice for 60 days ending on Under the regulations in ‘‘Subpart— Done in Washington, DC, this 28th day of August 1, 2011. We did not receive any September 2011. Fruits and Vegetables’’ (7 CFR 319.56– comments. 1 through 319.56–51, referred to below Kevin Shea, Therefore, in accordance with the as the regulations), the Animal and Acting Administrator, Animal and Plant regulations in 319.56–4(c)(2)(ii), we are Plant Health Inspection Service (APHIS) Health Inspection Service. announcing our decision to authorize of the U.S. Department of Agriculture [FR Doc. 2011–25490 Filed 10–3–11; 8:45 am] the importation into the continental prohibits or restricts the importation of BILLING CODE 3410–34–P United States of fresh apricot, sweet fruits and vegetables into the United cherry, and plumcot fruit from South States from certain parts of the world to Africa subject to the following prevent plant pests from being DEPARTMENT OF AGRICULTURE phytosanitary measures: introduced into and spreading within • Rural Business-Cooperative Service the United States. Under that process, The fruit must be imported as a APHIS may publish a notice in the commercial consignment, as defined in Maximum Loan Amount Available for Federal Register announcing the 319.56–2. B&I Guaranteed Loans in Fiscal Year availability of a pest risk analysis that • Each consignment of fruit must be 2012 evaluates the risks associated with the accompanied by a phytosanitary importation of a particular fruit or certificate issued by the national plant AGENCY: Rural Business-Cooperative vegetable. Following the close of the protection organization of South Africa. Service, USDA. 60-day comment period, APHIS may For apricots and plumcots only, the ACTION: Notice. authorize the importation of the fruit or phytosanitary certificate must include SUMMARY: 7 CFR 4279.119(a)(1) allows vegetable subject to the risk-mitigation an additional declaration stating that the the Rural Development Administrator, measures identified in the pest risk fruit was inspected and found free of at the Administrator’s discretion, to analysis if: (1) No comments were cinch bug (Macchiademus diplopterus). grant an exception to the $10 million received on the pest risk analysis; (2) • Apricots and plumcots must be cold limit for Business and Industry (B&I) the comments on the pest risk analysis treated for fruit flies (Ceratitis spp.) and guaranteed loans of $25 million or less revealed that no changes to the pest risk false codling moth (Thaumatotibia under certain circumstances. Due to the analysis were necessary; or (3) changes leucotreta) in accordance with 7 CFR limited program funds that will be to the pest risk analysis were made in part 305. available for Fiscal Year 2012 for the response to public comments, but the • Sweet cherries must be cold treated B&I Guaranteed Loan Program, the changes did not affect the overall for the Mediterranean fruit fly (Ceratitis Administrator has decided not to grant conclusions of the analysis and the capitata) in accordance with 7 CFR part exceptions to the $10 million limit Administrator’s determination of risk. 305. during FY 2012 in an effort to make In accordance with that process, we • guaranteed loan funds go farther and to published a notice 1 in the Federal Each consignment of fruit is subject provide financing assistance to as many Register on June 1, 2011 (76 FR 31577– to inspection upon arrival in the United projects as possible. Limiting 31578, Docket No. APHIS–2011–0039), States. guaranteed loans to $10 million or less in which we announced the availability, 2 will allow the Agency to guarantee more for review and comment, of a pest risk The Treatment Manual is available on the Internet at http://www.aphis.usda.gov/ loans and target smaller loans/projects analysis evaluating the risks associated import_export/plants/manuals/index.shtml or by impacting more small businesses and contacting the Animal and Plant Health Inspection 1 To view the notice and the pest risk analysis, Service, Plant Protection and Quarantine, Manuals will assist the Agency to conserve scarce go to http://www.regulations.gov/ Unit, 92 Thomas Johnson Drive, Suite 200, funding dollars at a time when there is #!docketDetail;D=APHIS-2011-0039. Frederick, MD 21702. unprecedented interest in the program.

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Any applications that have been Dated: September 27, 2011. VSMPO–AVISMA Corporation covering received as of the date of publication of Andrew McGilvray, the period April 1, 2009, through March this notice will be given full Executive Secretary. 31, 2010,’’ concurrently with this notice. consideration. [FR Doc. 2011–25533 Filed 10–3–11; 8:45 am] Amended Final Results of the Review BILLING CODE 3510–DS–P DATES: Effective Dates: October 4, 2011. As a result of our correction of FOR FURTHER INFORMATION CONTACT: ministerial errors, we determine that, for Brenda Griffin, e-mail DEPARTMENT OF COMMERCE the period April 1, 2009, through March [email protected], Rural 31, 2010, a weighted-average dumping Development, Business Programs, International Trade Administration margin of 22.38 percent exists for Business and Industry Division, STOP AVISMA. 3224, 1400 Independence Avenue, SW., [A–821–819] Assessment Rates Washington, DC 20250–3224; telephone Magnesium Metal from the Russian The Department shall determine and (202) 690–6802. Federation: Amended Final Results of U.S. Customs and Border Protection SUPPLEMENTAL INFORMATION: This action Antidumping Duty Administrative (CBP) shall assess antidumping duties has been reviewed and determined not Review to be a rule or regulation as defined in on all appropriate entries. In accordance Executive Order 12866 as amended by AGENCY: Import Administration, with 19 CFR 351.212(b)(1), we have Executive Order 13258. International Trade Administration, calculated an importer-specific Department of Commerce. assessment rate for AVISMA reflecting Dated: September 28, 2011. these amended final results of review. DATES: Effective Date: October 4, 2011. Judith A. Canales, The Department clarified its Administrator, Rural Business-Cooperative FOR FURTHER INFORMATION CONTACT: ‘‘automatic assessment’’ regulation on Service. Hermes Pinilla, AD/CVD Operations, May 6, 2003. This clarification will [FR Doc. 2011–25563 Filed 10–3–11; 8:45 am] Office 5, Import Administration, apply to entries of subject merchandise International Trade Administration, BILLING CODE 3410–XY–P during the POR produced by AVISMA U.S. Department of Commerce, 14th for which AVISMA did not know its Street and Constitution Avenue, NW., merchandise was destined for the Washington, DC 20230; telephone: (202) United States. In such instances, we will DEPARTMENT OF COMMERCE 482–3477. instruct CBP to liquidate unreviewed SUPPLEMENTARY INFORMATION: entries of merchandise produced by Foreign-Trade Zones Board Background AVISMA at the all-others rate if there is no rate for the intermediate [Docket T–3–2011] On September 13, 2011, the company(ies) involved in the Department of Commerce (the transaction. For a full discussion of this Foreign-Trade Zone 72 Temporary/ Department) published the final results clarification, see Antidumping and Interim Manufacturing Authority of the administrative review of the Countervailing Duty Proceedings: Brevini Wind USA, Inc., (Wind Turbine antidumping duty order on magnesium Assessment of Antidumping Duties, 68 Gear Boxes); Notice of Approval metal from the Russian Federation. See FR 23954 (May 6, 2003). Magnesium Metal from the Russian The Department intends to issue On July 14, 2011, the Executive Federation: Preliminary Results of instructions to CBP 15 days after the Secretary of the Foreign-Trade Zones Antidumping Duty Administrative publication of these amended final (FTZ) Board filed an application Review, 76 FR 56396 (September 13, results of review. submitted by the Indianapolis Airport 2011) (Final Results). Authority, grantee of FTZ 72, requesting We received a timely allegation of Cash-Deposit Requirements temporary/interim manufacturing (T/ ministerial errors pursuant to 19 CFR Because we revoked the order IM) authority, on behalf of Brevini Wind 351.224(c) from US Magnesium LLC, the effective April 15, 2010, no cash deposit USA, Inc., to manufacture wind turbine petitioner, alleging that we relied on for estimated antidumping duties on gear boxes under FTZ procedures unadjusted cost data to calculate future entries of subject merchandise is within FTZ 72—Site 14, in Yorktown, constructed value for the respondent, required. Indiana. PSC VSMPO–AVISMA Corporation The application was processed in (AVISMA), and that we inadvertently Notifications accordance with T/IM procedures, as set constructed value selling expenses to This notice serves as a final reminder authorized by FTZ Board Orders 1347 zero in the calculations. We agree with to importers of their responsibility (69 FR 52857, 8/30/04) and 1480 (71 FR the petitioner that the alleged errors are under 19 CFR 351.402(f) to file a 55422, 9/22/06), including notice in the ministerial errors. Therefore, we are certificate regarding the reimbursement Federal Register inviting public hereby amending the Final Results with of antidumping duties prior to comment (76 FR 43260, 7/20/2011). The respect to AVISMA to correct liquidation of the relevant entries FTZ staff examiner reviewed the ministerial errors in our calculation of during this review period. Failure to application and determined that it AVISMA’s weighted-average margin in comply with this requirement could meets the criteria for approval under accordance with 19 CFR 351.224(e). result in the Department’s presumption T/IM procedures. Pursuant to the For details regarding the ministerial that reimbursement of antidumping authority delegated to the FTZ Board errors, see the memorandum from duties occurred and the subsequent Executive Secretary in the above- Hermes Pinilla to the File entitled assessment of doubled antidumping referenced Board Orders, the ‘‘Administrative Review of the duties. application is approved, effective this Antidumping Duty Order on This notice also serves as a reminder date, until September 27, 2013, subject Magnesium Metal from the Russian to parties subject to administrative to the FTZ Act and the Board’s Federation—Amended Final Results protective order (APO) of their regulations, including Section 400.28. Analysis Memorandum for PSC responsibility concerning the

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disposition of proprietary information FOR FURTHER INFORMATION CONTACT: for screws or bolts; and (3) provide a disclosed under APO in accordance Joshua Morris, AD/CVD Operations, hardened bearing surface. The scope with 19 CFR 351.305(a)(3). Timely Office 1, Import Administration, does not include internal or external notification of destruction of APO International Trade Administration, tooth washers, nor does it include materials or conversion to judicial U.S. Department of Commerce, 14th spring lock washers made of other protective order is hereby requested. Street and Constitution Avenue, NW., metals, such as copper. Failure to comply with the regulations Washington, DC 20230; telephone (202) Lock washers subject to the orders are and the terms of an APO is a 482–1779. currently classifiable under subheadings sanctionable violation. SUPPLEMENTARY INFORMATION: 7318.21.0000 and 7318.21.0030 of the We are issuing and publishing this Harmonized Tariff Schedule of the determination and notice in accordance Background United States (‘‘HTSUS’’). Although the with sections 751(a)(1) and 777(i) of the On June 1, 2011, the Department HTSUS subheading is provided for Tariff Act of 1930, as amended, and 19 published the notice of initiation of the convenience and customs purposes, the CFR 351.224(e). third sunset review of the antidumping written description of the scope of this 1 Dated: September 27, 2011. duty orders on lock washers from proceeding is dispositive. Taiwan and the PRC pursuant to section Ronald K. Lorentzen, Analysis of Comments Received 751(c) of the Tariff Act of 1930, as Deputy Assistant Secretary for Import All issues raised in these reviews are Administration. amended (‘‘the Act’’). See Initiation of Five-Year (‘‘Sunset’’) Review, 76 FR addressed in the Issues and Decision [FR Doc. 2011–25532 Filed 10–3–11; 8:45 am] 31588 (June 1, 2011). On June 13, 2011, Memorandum (‘‘Decision BILLING CODE 3510–DS–P the Department received a notice of Memorandum’’) from Christian Marsh, intent to participate in both of these Deputy Assistant Secretary for Antidumping and Countervailing Duty DEPARTMENT OF COMMERCE reviews from Shakeproof Assembly Components Division of Illinois Tool Operations, to Ronald K. Lorentzen, International Trade Administration Works Inc. (‘‘Shakeproof’’), within the Deputy Assistant Secretary for Import deadline specified in 19 CFR Administration, dated concurrently [A–583–820, A–570–822] 351.218(d)(1)(i). Shakeproof, Petitioner with this notice, which is hereby in these proceedings, claimed interested adopted by this notice. The issues Certain Helical Spring Lock Washers party status for both of these reviews discussed in the Decision Memorandum From Taiwan and the People’s under section 771(9)(C) of the Act, as a include the likelihood of continuation Republic of China: Final Results of the producer of the domestic like product. or recurrence of dumping and the Expedited Third Five-Year Sunset On June 30, 2011, the Department magnitude of the margins likely to Reviews of the Antidumping Duty received a complete substantive prevail if the orders were revoked. Orders response from Petitioner for both Parties can find a complete discussion reviews within the deadline specified in of all issues raised in these reviews and AGENCY: Import Administration, 19 CFR 351.218(d)(3)(i). We received no the corresponding recommendations in International Trade Administration, substantive responses from any this public memorandum, which is on Department of Commerce. respondent interested parties. As a file in the Central Records Unit in room DATES: Effective Date: October 4, 2011. result, pursuant to section 751(c)(3)(B) 7046 of the main Department building. SUMMARY: On June 1, 2011, the of the Act and 19 CFR In addition, a complete version of the Department of Commerce 351.218(e)(1)(ii)(C)(2), the Department Decision Memorandum can be accessed (‘‘Department’’) initiated the third conducted expedited sunset reviews of directly on the Internet at http:// sunset reviews of the antidumping duty these antidumping duty orders. www.ia.ita.doc.gov/frn. The paper copy orders on certain helical spring lock and electronic version of the Decision Scope of the Orders washers (‘‘lock washers’’) from Taiwan Memorandum are identical in content. and the People’s Republic of China The products covered by the orders (‘‘PRC’’). The Department has conducted are lock washers of carbon steel, of Final Results of Review expedited sunset reviews of these carbon alloy steel, or of stainless steel, Pursuant to sections 752(c)(1) and (3) orders. As a result of these reviews, the heat-treated or non-heat-treated, plated of the Act, we determine that revocation Department finds that revocation of the or non-plated, with ends that are off- of the antidumping duty orders on lock antidumping duty orders would likely line. Lock washers are designed to: (1) washers from Taiwan and the PRC lead to a continuation or recurrence of Function as a spring to compensate for would be likely to lead to continuation dumping at the margins identified in the developed looseness between the or recurrence of dumping at the ‘‘Final Results of Review’’ section of this component parts of a fastened assembly; following weighted-average percentage notice. (2) distribute the load over a larger area margins:

Margin Manufacturers/producers/exporters (percent)

Lock Washers From Taiwan

Spring Lake Enterprises Co., Ltd ...... 31.93 Ceimiko Industrial Co., Ltd ...... 31.93 Par Excellence Industrial Co., Ltd ...... 31.93 All-Others ...... 31.93

1 On September 30, 1997, the Department into the United States in an uncut, coil form are within the scope of the orders. See Notice of Scope determined that lock washers which are imported Rulings, 62 FR 62288 (November 21, 1997).

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Margin Exporters (percent)

Lock Washers from the PRC

Hangzhou Spring Washer Co., Ltd. a/k/a Zhejiang Wanxin Group Co., Ltd. Co., Ltd. a/k/a Hangzhou Spring Washer Plant (‘‘HSWP’’) ...... 69.88 HSWP via IFI Morgan Limited ...... 69.88 HSWP via Carway Development Ltd ...... 69.88 HSWP via Midway Fasteners Ltd ...... 69.88 HSWP via Linkwell Industry Co., Ltd ...... 69.88 HSWP via Fastwell Industry Co., Ltd ...... 69.88 HSWP via Sunfast International Corp ...... 69.88 HSWP via Winner Standard Parts Co., Ltd ...... 69.88 PRC-wide ...... 128.63

This notice also serves as the only searching the permit number within the County of Santa Cruz, Environmental reminder to parties subject to Search Database page. The applications, Health Services on August 30, 2011. administrative protective order (‘‘APO’’) issued permits and supporting Permit 15824 authorizes snorkel of their responsibility concerning the documents are also available upon surveys, capture by backpack return or destruction of proprietary written request or by appointment: electrofishing and seining, handling information disclosed under APO in Protected Resources Division, NMFS, (measuring), scale sampling, marking accordance with 19 CFR 351.305. 777 Sonoma Avenue, Room 325, Santa (fin-clipping), and release of juvenile Timely notification of the return or Rosa, CA 95404 (ph: (707) 575–6097, Central California Coast (CCC) coho destruction of APO materials or fax: (707) 578–3435). salmon, Central California Coast (CCC) steelhead, and South-California Coast conversion to judicial protective orders FOR FURTHER INFORMATION CONTACT: (S–CCC) steelhead, henceforth referred is hereby requested. Failure to comply Jeffrey Jahn at 707–575–6097, or e-mail: to as ESA-listed salmonids. Permit with the regulations and terms of an [email protected]. APO is a violation which is subject to 15824 authorizes unintentional lethal sanction. SUPPLEMENTARY INFORMATION: take of: Juvenile ESA-listed salmonids We are issuing and publishing the Authority not to exceed one percent of the total final results and notice in accordance number of fish captured. Permit 15824 with sections 751(c), 752(c), and The issuance of permits and permit does not authorize any non-lethal or 777(i)(1) of the Act. modifications, as required by the lethal take of adult ESA-listed Endangered Species Act of 1973 (16 salmonids. Dated: September 27, 2011. U.S.C. 1531–1543) (ESA), is based on a Permit 15824 is for research to be Ronald K. Lorentzen finding that such permits/modifications: conducted in the San Lorenzo River, Deputy Assistant Secretary for Import (1) Are applied for in good faith; (2) Aptos Creek, Soquel Creek, and Administration. would not operate to the disadvantage Corralitos Creek in Santa Cruz County, [FR Doc. 2011–25594 Filed 10–3–11; 8:45 am] of the listed species which are the California. The main purpose of the BILLING CODE 3510–DS–P subject of the permits; and (3) are project is to track habitat conditions and consistent with the purposes and site densities of juvenile salmonids in policies set forth in section 2 of the these watersheds. Permit 15824 expires DEPARTMENT OF COMMERCE ESA. Authority to take listed species is on December 31, 2016. subject to conditions set forth in the Permit 16318 National Oceanic and Atmospheric permits. Permits and modifications are Administration issued in accordance with and are A notice of the receipt of an RIN 0648–XA742 subject to the ESA and NMFS application for a scientific research regulations (50 CFR parts 222–226) permit renewal (16318) was published Endangered and Threatened Species; governing listed fish and wildlife in the Federal Register on June 1, 2011 Take of Anadromous Fish permits. (76 FR 31590). Permit 16318 was issued to Hagar Environmental Science (HES) AGENCY: National Marine Fisheries Species Covered in This Notice on August 30, 2011. Service (NMFS), National Oceanic and This notice is relevant to federally Permit 16318 authorizes HES to take Atmospheric Administration (NOAA), juvenile ESA-listed salmonids Commerce. endangered Central California Coast coho salmon (Oncorhyncus kisutch), associated with three research projects ACTION: Issuance of two scientific threatened Central California Coast consisting of lagoon surveys and stream research permits. steelhead (O. mykiss), and threatened surveys in Santa Cruz, Monterey, and San Luis Obispo counties in central SUMMARY: Notice is hereby given that South-Central California Coast steelhead (O. mykiss). California. The data from lagoon and NMFS has issued Permit 15824 to Santa stream surveys will be used to track Cruz County Environmental Health Permits Issued salmonid spawning and rearing Services and Permit 16318 to Hagar Permit 15824 conditions in lagoons and streams, Environmental Science. prioritize restoration and conservation ADDRESSES: The approved application A notice of the receipt of an efforts, and inform land and water use for each permit is available on the application for a scientific research decisions. Applications and Permits for Protected permit (15824) was published in the Under Permit 16318, authorized Species (APPS), https:// Federal Register on June 1, 2011 (76 FR research methods include snorkel apps.nmfs.noaa.gov Web site by 31590). Permit 15824 was issued to the surveys, electrofishing, scale sampling,

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passive integrated transponder (PIT) England Fishery Management Plans. upon written request or by appointment tagging, anesthetizing, and handling of The Committee and Panel will comment in the following offices: fish. Permit 16318 does not authorize on draft NOAA Enforcement Priority Permits, Conservation and Education any intentional lethal take of ESA-listed Setting Process. Some of the actions that Division, Office of Protected Resources, salmonids. Permit 16318 authorizes the Committee and Panel may be asked NMFS, 1315 East-West Highway, Room unintentional lethal take of juvenile to review are: Scallop management 13705, Silver Spring, MD 20910; phone ESA-listed salmonids associated with measures (Framework 24 and (301) 427–8401; fax (301) 713–0376; and research activities not to exceed one Amendment 16); Herring Amendment 5 percent of the annual total expected take management measures-preliminary Alaska Region, NMFS, P.O. Box for each species associated with review; Hake (Whiting) incidental 21668, Juneau, AK 99802–1668; phone electrofishing and not to exceed two possession limits when Total Allowable (907) 586–7221; fax (907) 586–7249. percent of the annual total expected take Landings are reached; Skate species FOR FURTHER INFORMATION CONTACT: associated with beach seining and identification at sea and at the dock. Tammy Adams or Joselyd Garcia-Reyes, marking/tagging procedures. Permit They also plan to schedule meetings for (301) 427–8401. 16318 expires on December 31, 2016. next year. Other business may be Dated: September 29, 2011. discussed. SUPPLEMENTARY INFORMATION: On July Although non-emergency issues not Angela Somma, 29, 2011, notice was published in the contained in this agenda may come Federal Register (76 FR 45514) that a Chief, Endangered Species Division, Office before this group for discussion, those of Protected Resources, National Marine request for a permit to conduct research Fisheries Service. issues may not be the subject of formal on harbor seals (Phoca vitulina) action during this meeting. Action will [FR Doc. 2011–25558 Filed 10–3–11; 8:45 am] throughout their range in Alaska, be restricted to those issues specifically BILLING CODE 3510–22–P including Southeast Alaska, Gulf of identified in this notice and any issues Alaska, and Bering Sea, had been arising after publication of this notice submitted by the above-named that require emergency action under DEPARTMENT OF COMMERCE applicant. The requested permit has section 305(c) of the Magnuson-Stevens been issued under the authority of the Fishery Conservation and Management National Oceanic and Atmospheric Marine Mammal Protection Act of 1972, Administration Act, provided the public has been notified of the Council’s intent to take as amended (16 U.S.C. 1361 et seq.), and RIN 0648–XA745 final action to address the emergency. the regulations governing the taking and importing of marine mammals (50 CFR New England Fishery Management Special Accommodations part 216). Council; Public Meeting This meeting is physically accessible The permitted takes include aerial AGENCY: National Marine Fisheries to people with disabilities. Requests for surveys for population census and radio Service (NMFS), National Oceanic and sign language interpretation or other tracking; ground surveys for photo- Atmospheric Administration (NOAA), auxiliary aids should be directed to Paul identification, counts and behavioral Commerce. J. Howard (see ADDRESSES) at least 5 observations; vessel approaches of ACTION: Notice; public meeting. days prior to the meeting date. animals equipped with telemetry Authority: 16 U.S.C. 1801 et seq. equipment; vessel surveys for radio SUMMARY: The New England Fishery tracking; and capture by entanglement Management Council’s (Council) Dated: September 28, 2011. Tracey L. Thompson, in a net in the water or by hoop net or Groundfish Committee will meet to dip net on land. Captured animals will: consider actions affecting New England Acting Director, Office of Sustainable be restrained (chemical or physical); be fisheries in the exclusive economic zone Fisheries, National Marine Fisheries Service. weighed and measured; have biological (EEZ). [FR Doc. 2011–25419 Filed 10–3–11; 8:45 am] samples collected (blood, milk (lactating DATES: BILLING CODE 3510–22–P The meeting will be held on females), blubber, skin, muscle, hair, Thursday, October 20, 2011 at 9:30 a.m. mucus membrane swabs, stomach ADDRESSES: The meeting will be held at DEPARTMENT OF COMMERCE lavage, tooth and vibrissae); be the Sheraton Harborside Hotel, 250 administered deuterated water; have Market Street, Portsmouth, NH 03801; National Oceanic and Atmospheric measurement of blubber via ultrasound; telephone: (603) 431–2300; fax: (603) Administration be marked with flipper identification 433–5649. tags; and have internal (PIT tags) or Council address: New England RIN 0648–XA599 external scientific instruments attached. Fishery Management Council, 50 Water Marine Mammals; File No. 16094 Street, Mill 2, Newburyport, MA 01950. Tissue samples will be collected from subsistence harvested animals and other FOR FURTHER INFORMATION CONTACT: Paul AGENCY: National Marine Fisheries mortalities and some samples will be J. Howard, Executive Director, New Service (NMFS), National Oceanic and exported to Canada for analysis. The England Fishery Management Council; Atmospheric Administration (NOAA), permit is valid through December 31, telephone: (978) 465–0492. Commerce. 2016. SUPPLEMENTARY INFORMATION: The items ACTION: Notice; issuance of permit. of discussion in the agenda are: In compliance with the National The Committee and Advisory Panel SUMMARY: Notice is hereby given that a Environmental Policy Act of 1969 (42 will review gear stowage regulations. permit has been issued to the Alaska U.S.C. 4321 et seq.), a final There will be a request for comments on Department of Fish and Game, Juneau, determination has been made that the vessel and gear marking. There will be AK to conduct research on marine activity proposed is categorically an open comment period for the fishing mammals. excluded from the requirement to industry, concerning Compliance and ADDRESSES: The permit and related prepare an environmental assessment or Effectiveness of Regulations for New documents are available for review environmental impact statement.

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Dated: September 28, 2011. Keith West Assistant Inspector General Plutonium Facility Seismic Safety, P. Michael Payne, for Audit Services, Department of which was issued on October 26, 2009. Chief, Permits, Conservation and Education Education The Board will also examine the status Division, Office of Protected Resources, Dated: September 28, 2011. of emergency preparedness at the National Marine Fisheries Service. Aaron Siegel, laboratory and will receive testimony [FR Doc. 2011–25557 Filed 10–3–11; 8:45 am] concerning how well NNSA and its Alternate OSD Federal Register Liaison BILLING CODE 3510–22–P Officer, Department of Defense. contractor are prepared to respond to site emergencies, including threats from [FR Doc. 2011–25457 Filed 10–3–11; 8:45 am] natural phenomena. The Board is also BILLING CODE 5001–06–P interested in lessons learned from the DEPARTMENT OF DEFENSE events at the Fukushima Daiichi complex, the recent Las Conchas fire, Office of the Secretary DEFENSE NUCLEAR FACILITIES and the 2000 Cerro Grande fire and the SAFETY BOARD actions taken to incorporate these Senior Executive Service Performance Sunshine Act Notice lessons learned at the site-wide level Review Board and in defense nuclear facility AGENCY: Department of Defense Office AGENCY: Defense Nuclear Facilities operations. During Session II, the Board of Inspector General, Department of Safety Board. will examine NNSA’s efforts to mitigate Defense (DoD). ACTION: Notice of public hearing and risks to public and worker safety posed by existing aging defense nuclear ACTION: Notice. meeting. facilities and NNSA’s efforts to ensure SUMMARY: Pursuant to the provisions of SUMMARY: This notice announces the the integration of safety-in-design for the ‘‘Government in the Sunshine Act’’ appointment of the members of the modern replacement facilities. The (5 U.S.C. 552b), notice is hereby given Senior Executive Service (SES) Board will receive testimony on the of the Defense Nuclear Facilities Safety Performance Review Board (PRB) for the operations and safety basis at existing Board’s (Board) public hearing and Department of Defense Office of LANL defense nuclear facilities, meeting described below. The Board Inspector General (DoD OIG), as including the Chemistry and Metallurgy will conduct a public hearing and required by 5 U.S.C. 4314(c)(4). The Research Building, Area G in Technical meeting pursuant to 42 U.S.C. 2286b PRB provides fair and impartial review Area-54, and the Radioactive Liquid and invites any interested persons or of SES performance appraisals and Waste Treatment Facility. The Board groups to present any comments, makes recommendations regarding will also receive testimony on the technical information, or data performance ratings and performance integration of safety-in-design for the concerning safety issues related to the awards to the Inspector General. Chemistry and Metallurgy Research matters to be considered. Replacement project, the new DATES: Effective Date: October 1, 2011. TIME AND DATE OF MEETING: Session I: 1– Transuranic Waste Facility, and the FOR FURTHER INFORMATION CONTACT: Ms. 5 p.m., November 17, 2011; Session II: Radioactive Liquid Waste Treatment Phyllis Hughes, Director, Human 7–9 p.m., November 17, 2011. Facility Upgrade project. The public Capital Advisory Services, PLACE: Santa Fe Community Convention hearing portion of this proceeding is Administration and Management, DoD Center, 201 West Marcy Street, Santa Fe, authorized by 42 U.S.C. 2286b. OIG, 400 Army Navy Drive, Arlington, New Mexico 87501. Parking will be CONTACT PERSON FOR MORE INFORMATION: VA 22202, (703) 602–4516. available at no cost. Brian Grosner, General Manager, SUPPLEMENTARY INFORMATION: In STATUS: Open. While the Government in Defense Nuclear Facilities Safety Board, accordance with 5 U.S.C. 4314(c)(4), the the Sunshine Act does not require that 625 Indiana Avenue, NW., Suite 700, following executives are appointed to the scheduled discussion be conducted Washington, DC 20004–2901, (800) 788– the DoD OIG, PRB: in a meeting, the Board has determined 4016. This is a toll-free number. Kathy Buller Deputy Inspector that an open meeting in this specific SUPPLEMENTARY INFORMATION: Public General, (Foreign Service) Peace case furthers the public interests participation in the hearing is invited. Corps underlying both the Sunshine Act and The Board is setting aside thirty minutes Asa E. Cunningham Assistant the Board’s enabling legislation. at the end of each session of the hearing Inspector General for Inspections and MATTERS TO BE CONSIDERED: In this for presentations and comments from Special Investigations, Department of public hearing and meeting, the Board the public. Requests to speak may be Labor wishes to further explore safety matters submitted in writing or by telephone. Richard K. Delmar Counsel to the and gather other information related to The Board asks that commentators Inspector General, Department of the public and worker health and safety for describe the nature and scope of their Treasury defense nuclear facilities at the Los oral presentations. Those who contact Maria A. Freedman Assistant Inspector Alamos National Laboratory (LANL). the Board prior to close of business on General for Audit, Department of the During Session I, the Board will November 10, 2011, will be scheduled Treasury examine the seismic safety of the to speak at the session of the hearing Glenn P. Harris Counsel to the Plutonium Facility. The Board will most relevant to their presentations. At Inspector General, Small Business receive testimony on National Nuclear the beginning of Session I, the Board Administration Security Administration (NNSA) actions will post a schedule for speakers at the Elizabeth Martin General Counsel, to address Plutonium Facility seismic entrance to the hearing room. Anyone United States Postal Service vulnerabilities that lead to severe who wishes to comment or provide Mary Mitchelson Deputy Inspector postulated accident scenarios. The technical information or data may do so General, Department of Education Board is also interested in the status of in writing, either in lieu of, or in Daniel J. O’Rourke Assistant Inspector actions identified in NNSA’s response addition to, making an oral General for Investigations, Small to the Board’s Recommendation 2009–2, presentation. The Board Members may Business Administration Los Alamos National Laboratory question presenters to the extent

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deemed appropriate. Documents will be 400 Maryland Avenue, SW., LBJ, knowledge about best school leadership accepted at the meeting or may be sent Washington, DC 20202–4537. Please and teaching practices, is authorized by to the Board’s Washington, DC, office. note that written comments received in Public Law 107–110 (January 8, 2002), The Board will hold the record open response to this notice will be Part D—Fund for the Improvement of until December 19, 2011, for the receipt considered public records. Education, Subpart 1, Sec. 5411(b)(5). of additional materials. A transcript of SUPPLEMENTARY INFORMATION: Section Copies of the proposed information the meeting, along with DVD video 3506 of the Paperwork Reduction Act of collection request may be accessed from recordings of both sessions, will be 1995 (44 U.S.C. chapter 35) requires that http://edicsweb.ed.gov, by selecting the made available by the Board for Federal agencies provide interested ‘‘Browse Pending Collections’’ link and inspection and viewing by the public at parties an early opportunity to comment by clicking on link number 4702. When the Board’s Washington office and at the on information collection requests. The you access the information collection, Department of Energy’s (DOE) public Director, Information Collection click on ‘‘Download Attachments’’ to reading room at the DOE Federal Clearance Division, Regulatory view. Written requests for information Building, 1000 Independence Avenue, Information Management Services, should be addressed to U.S. Department SW., Washington, DC 20585. The Board Office of Management, publishes this of Education, 400 Maryland Avenue, specifically reserves its right to further notice containing proposed information SW., LBJ, Washington, DC 20202–4537. schedule and otherwise regulate the collection requests at the beginning of Requests may also be electronically course of the meeting and hearing, to the Departmental review of the mailed to [email protected] or faxed recess, reconvene, postpone, or adjourn information collection. The Department to 202–401–0920. Please specify the the meeting and hearing, conduct of Education is especially interested in complete title of the information further reviews, and otherwise exercise public comment addressing the collection and OMB Control Number its power under the Atomic Energy Act following issues: (1) Is this collection when making your request. Individuals who use a of 1954, as amended. necessary to the proper functions of the telecommunications device for the deaf Department; (2) will this information be Dated: September 30, 2011. (TDD) may call the Federal Information processed and used in a timely manner; Jessie H. Roberson, Relay Service (FIRS) at 1–800–877– (3) is the estimate of burden accurate; Vice Chairman. 8339. (4) how might the Department enhance [FR Doc. 2011–25782 Filed 9–30–11; 4:15 pm] the quality, utility, and clarity of the [FR Doc. 2011–25554 Filed 10–3–11; 8:45 am] BILLING CODE 3670–01–P information to be collected; and (5) how BILLING CODE 4000–01–P might the Department minimize the burden of this collection on the DEPARTMENT OF EDUCATION respondents, including through the use DEPARTMENT OF EDUCATION Notice of Proposed Information of information technology. Notice of Submission for OMB Review Collection Requests Dated: September 29, 2011. AGENCY: Department of Education. Darrin King, AGENCY: Department of Education. ACTION: Comment request. Director, Information Collection Clearance ACTION: Comment request. Division, Privacy, Information and Records SUMMARY: The Director, Information Management Services, Office of Management. SUMMARY: The Department of Education Collection Clearance Division, Privacy, (the Department), in accordance with Office of Communications and Information and Records Management the Paperwork Reduction Act of 1995 Outreach Services, Office of Management, invites comments on the submission for OMB (PRA) (44 U.S.C. 3506(c)(2)(A)), Type of Review: Extension. review as required by the Paperwork provides the general public and Federal Title of Collection: National Blue Reduction Act of 1995 (Pub. L. 104–13). agencies with an opportunity to Ribbon Schools Program. comment on proposed and continuing OMB Control Number: 1860–0506. DATES: Interested persons are invited to collections of information. This helps Agency Form Number(s): N/A. submit comments on or before the Department assess the impact of its Frequency of Responses: Once. November 3, 2011. information collection requirements and Affected Public: State, Local or Tribal ADDRESSES: Written comments should minimize the reporting burden on the Government; Not-for-profit institutions be addressed to the Office of public and helps the public understand (public and private elementary, middle Information and Regulatory Affairs, the Department’s information collection and high schools). Attention: Education Desk Officer, requirements and provide the requested Total Estimated Number of Annual Office of Management and Budget, 725 data in the desired format. The Director, Responses: 413. 17th Street, NW, Room 10222, New Information Collection Clearance Total Estimated Annual Burden Executive Office Building, Washington, Division, Privacy, Information and Hours: 16,420. DC 20503, be faxed to (202) 395–5806 or Records Management Services, Office of Abstract:. The National Blue Ribbon e-mailed to Management, invites comments on the Schools Program honors public and [email protected] with a proposed information collection private elementary, middle and high cc: to [email protected]. Please note requests as required by the Paperwork schools where students achieve at high that written comments received in Reduction Act of 1995. levels or where the achievement gap is response to this notice will be DATES: Interested persons are invited to narrowing among all student subgroups. considered public records. submit comments on or before Each year since 1982, the U.S. SUPPLEMENTARY INFORMATION: Section December 5, 2011. Department of Education (ED) has 3506 of the Paperwork Reduction Act of ADDRESSES: Comments regarding burden sought out schools where students 1995 (44 U.S.C. Chapter 35) requires and/or the collection activity attain and maintain high academic that the Office of Management and requirements should be electronically goals, including those that beat the Budget (OMB) provide interested mailed to [email protected] or odds. The Program, part of a larger ED Federal agencies and the public an early mailed to U.S. Department of Education, effort to identify and disseminate opportunity to comment on information

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collection requests. The OMB is Office of Management and Budget’s Dates: October 15, 2011. particularly interested in comments (OMB) clearance for (1) A spring 2012 Time: 9 a.m.–3 p.m. P.D.T. which: (1) Evaluate whether the first-grade national data collection; (2) a ADDRESSES: The Commission will meet proposed collection of information is fall 2012 second-grade data collection in Las Vegas, Nevada at a specific venue necessary for the proper performance of with the same 30 percent subsample for to be determined. Members of the public the functions of the agency, including which data will be collected in the fall seeking entrance to the meeting location whether the information will have 2011 first-grade collection; and (3) a 60- should e-mail their request to Kate. practical utility; (2) Evaluate the day Federal Register notice waiver for [email protected] by October 7, 2011. accuracy of the agency’s estimate of the the next OMB clearance package to be Additional updates as to the specific burden of the proposed collection of submitted in June of 2012 for the spring meeting location will be available on the information, including the validity of 2013 second-grade data collection, Commission’s Web site at http://www2. the methodology and assumptions used; recruitment for the spring 2014 third- ed.gov/about/inits/list/asian-americans- (3) Enhance the quality, utility, and grade data collection, and tracking initiative/index.html. clarity of the information to be students for the spring 2014 third-grade Phone: 202–453–5508. and spring 2015 fourth-grade data collected; and (4) Minimize the burden FOR FURTHER INFORMATION CONTACT: Kate of the collection of information on those collection. Moraras, White House Initiative on Copies of the information collection who are to respond, including through Asian Americans and Pacific Islanders, submission for OMB review may be the use of appropriate automated, 400 Maryland Avenue, SW., accessed from the RegInfo.gov Web site electronic, mechanical, or other Washington, DC 20202; telephone: (202) at http://www.reginfo.gov/public/do/ technological collection techniques or 453–5508 fax: 202–453–5632 or by e- other forms of information technology. PRAMain or from the Department’s Web site at http://edicsweb.ed.gov, by mail at [email protected]. Dated: September 29, 2011. selecting the ‘‘Browse Pending SUPPLEMENTARY INFORMATION: The Darrin King, Collections’’ link and by clicking on President’s Advisory Commission on Director, Information Collection Clearance link number 4677. When you access the Asian Americans and Pacific Islanders Division, Privacy, Information and Records information collection, click on is established under Executive Order Management Services, Office of Management. ‘‘Download Attachments’’ to view. 13515, dated October 14, 2009. Per E.O. Institute of Education Sciences Written requests for information should 13515, the Commission shall provide be addressed to U.S. Department of advice to the President, through the Type of Review: Revision. Education, 400 Maryland Avenue, SW., Secretaries of Education and Commerce, Title of Collection: Early Childhood LBJ, Washington, DC 20202–4537. as Co-Chairs of the Initiative, on: (i) The Longitudinal Study Kindergarten Class Requests may also be electronically development, monitoring, and of 2010–11 (ECLS–K:2011) Spring First- mailed to the Internet address coordination of executive branch efforts Grade and Fall Second-Grade Data [email protected] or faxed to 202– to improve the quality of life of AAPIs Collections. 401–0920. Please specify the complete through increased participation in OMB Control Number: 1850–0750. title of the information collection and Federal programs in which such persons Agency Form Number(s): N/A. OMB Control Number when making may be underserved; (ii) the Frequency of Responses: Annually. your request. compilation of research and data related Affected Public: Individuals or Individuals who use a to AAPI populations and Households. telecommunications device for the deaf subpopulations; (iii) the development, Total Estimated Number of Annual (TDD) may call the Federal Information monitoring, and coordination of Federal Responses: 143,138. Relay Service (FIRS) at 1–800–877– efforts to improve the economic and Total Estimated Annual Burden 8339. community development of AAPI Hours: 49,128. [FR Doc. 2011–25556 Filed 10–3–11; 8:45 am] businesses; and (iv) strategies to Abstract: The Early Childhood BILLING CODE 4000–01–P increase public and private-sector Longitudinal Study, Kindergarten Class collaboration, and community of 2010–11 (ECLS–K:2011), sponsored involvement in improving the health, by the National Center for Education DEPARTMENT OF EDUCATION education, environment, and well-being Statistics within the Institute of of AAPIs. Education Sciences of the U.S. President’s Advisory Commission on Department of Education, is a survey Asian Americans and Pacific Islanders Agenda that focuses on children’s early school AGENCY: U.S. Department of Education, The purpose of the meeting is to experiences beginning with President’s Advisory Commission on discuss strategic planning; review work kindergarten and continuing through Asian Americans and Pacific Islanders. of the White House Initiative on Asian the fifth grade. It includes the collection Americans and Pacific Islanders; and ACTION: Notice of an open meeting. of data from parents, teachers, school determine key strategies to help meet administrators, and non-parental care SUMMARY: The notice sets forth the the Commission’s charge as established providers, as well as direct child schedule and agenda of the meeting of in E.O. 13515. assessments. Like its sister study, the the President’s Advisory Commission Additional Information Early Childhood Longitudinal Study, on Asian Americans and Pacific Kindergarten Class of 1998–99, the Islanders (Commission). The notice also Individuals who will need ECLS–K:2011 is exceptionally broad in describes the functions of the accommodations for a disability in order its scope and coverage of child Commission. Notice of the meeting is to attend the meeting (e.g., interpreting development, early learning, and school required by section 10(a)(2) of the services, assistive listening devices, or progress, drawing together information Federal Advisory Committee Act and material in alternative format) should from multiple sources to provide rich intended to notify the public of its notify Kate Moraras at (202) 453–5508, data about the population of children opportunity to attend. no later than Wednesday, October 5, who were kindergartners in the 2010–11 Dates: October 13, 2011. 2011. We will attempt to meet requests school year. This submission requests Time: 9 a.m.–5:30 p.m. P.DT. for accommodations after this date, but,

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cannot guarantee their availability. The utilizing VoiP (Voice Over Internet electronic files in specialized formats meeting site is accessible to individuals Protocol). The login address for and files used in producing with disabilities. members of the public is https:// instructional materials in specialized Records are kept of all Commission aimpsc.ilinc.com/join/vfhzhzk. This formats, and a list of possible entities proceedings and are available for public login information is also provided via qualified to administer such inspection at the office of the White the Commission’s public listserv at clearinghouse, repository, or network; House Initiative on Asian Americans [email protected] and posted at (IV) the feasibility of establishing and Pacific Islanders, U.S. Department the following site: http://www2.ed.gov/ market-based solutions involving of Education, 400 Maryland Avenue, about/bdscomm/list/aim/index.html. collaborations among publishers of SW., Washington, DC 20202, Monday– FOR FURTHER INFORMATION CONTACT: instructional materials, producers of Friday during the hours of 8:30 a.m. to Elizabeth Shook, Program Specialist, materials in specialized formats, and 5 p.m. Office of Special Education and institutions of higher education; (V) Electronic Access to this Document: Rehabilitative Services, United States solutions utilizing universal design; and You may view this document, as well as Department of Education, 550 12th (VI) solutions for low-incidence, high- all other documents of this Department Street, SW., Washington, DC 20202; cost requests for instructional materials published in the Federal Register, in telephone: (202) 245–7642, fax: 202– in specialized formats. text or Adobe Portable Document 245–7638. During the meeting, the Commission will review and approve the final draft Format (PDF) on the internet at the SUPPLEMENTARY INFORMATION: The of the Commission’s report to Congress following site: http://www.ed.gov/news/ Advisory Commission on Accessible and the Secretary. Given the limited fedregister/index.html. To use PDF you Instructional Materials in Postsecondary meeting time, the Commission does not must have Adobe Acrobat Reader, Education for Students with Disabilities which is available free at this site. If you anticipate that there will be an (the Commission) is established under opportunity for public comment during have questions about using PDF, call the Section 772 of the Higher Education U.S. Government Printing Office (GPO), the teleconference meeting. Members of Opportunity Act, Public Law 110–315, the public are encouraged to submit toll free at 1–866–512–1800; or in the dated August 14, 2008. The Commission Washington, DC area at 202–512–0000. written comments to the AIM is established to (a) conduct a Commission Web site at Martha Kanter, comprehensive study, which will—(I) [email protected], and the Under Secretary. assess the barriers and systemic issues Commission will respond to the that may affect, and technical solutions [FR Doc. 2011–25466 Filed 10–3–11; 8:45 am] comments if possible. Members of the available that may improve, the timely BILLING CODE 4000–01–P public who would like to offer delivery and quality of accessible comments as part of the meeting may instructional materials for submit written comments to DEPARTMENT OF EDUCATION postsecondary students with print [email protected] or by mail to disabilities, as well as the effective use Advisory Commission on Accessible Advisory Commission on Accessible of such materials by faculty and staff; Instructional Materials in Postsecondary Instructional Materials in and (II) make recommendations related Education for Students with Disabilities, Postsecondary Education for Students to the development of a comprehensive 550 12th St., SW., Room PCP–5113, With Disabilities approach to improve the opportunities Washington, DC 20202. All submissions for postsecondary students with print will become part of the public record. AGENCY: U.S. Department of Education, disabilities to access instructional Office of Special Education and Members of the public may also join the materials in specialized formats in a Commission’s list serv at Rehabilitative Services, Advisory timeframe comparable to the availability [email protected]. Commission on Accessible Instructional of instructional materials for Detailed minutes of the meeting, Materials in Postsecondary Education postsecondary nondisabled students. including summaries of the activities of for Students with Disabilities. In making recommendations for the the closed sessions and related matters ACTION: Notice of an open meeting via study, the Commission shall consider— that are informative to the public and conference call. (I) how students with print disabilities consistent with the policy of section 5 may obtain instructional materials in U.S.C. 552b(c) will be available to the SUMMARY: The notice sets forth the accessible formats within a timeframe public. Records are kept of all schedule and agenda of the meeting of comparable to the availability of Commission proceedings and are the Advisory Commission on Accessible instructional materials for nondisabled available for public inspection at the Instructional Materials in Postsecondary students; and to the maximum extent Office of Special Education and Education for Students with Disabilities. practicable, at costs comparable to the Rehabilitative Services, United States The notice also describes the functions costs of such materials for nondisabled Department of Education, 550 12th of the Commission. Notice of the students; (II) the feasibility and Street, SW., Washington, DC 20202, meeting is required by section 10(a)(2) technical parameters of establishing Monday–Friday during the hours of 8 of the Federal Advisory Committee Act standardized electronic file formats, a.m. to 4:30 p.m. and is intended to notify the public of such as the National Instructional its opportunity to attend. Materials Accessibility Standard as Additional Information DATES: October 24, 2011. defined in Section 674(e)(3) of the Individuals who will need Time: 11 a.m.–5 p.m., Eastern Individuals with Disabilities Education accommodations for a disability in order Standard Time. Act, to be provided by publishers of to listen to the meeting (e.g., ADDRESSES: The Commission will meet instructional materials to producers of interpreting services, assistive listening via conference call on October 24, 2011. materials in specialized formats, devices, or material in alternative Members of the public have the option institutions of higher education, and format) should notify Elizabeth Shook at of participating in the open meeting eligible students; (III) the feasibility of (202) 245–7642, no later than October remotely. Remote access will be establishing a national clearinghouse, 14, 2011. We will make every attempt to provided via an internet webinar service repository, or file-sharing network for meet requests for accommodations after

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this date, but, cannot guarantee their • Liaisons’ Comments. DEPARTMENT OF ENERGY availability. The conference call will be • Administrative Issues: DOE Response to Defense Nuclear accessible to individuals with Æ Presentation by Kentucky Research Facilities Safety Board’s Request for disabilities. Consortium for Energy and Environment Clarification on Recommendation Electronic Access to this Document: (KRCEE): Ground Water Model. You may view this document, as well as 2011–1, Safety Culture at the Waste Æ Presentation by Swift & Staley: all other documents of this Department Treatment and Immobilization Plant Environmental Information Center. published in the Federal Register, in • AGENCY: Department of Energy. text or Adobe Portable Document Subcommittee Chairs’ Comments. Format (PDF) on the internet at the • Public Comments. ACTION: Notice. • following site: http://www.ed.gov/news/ Final Comments. SUMMARY: On August 12, 2011, the fedregister/index.html. To use PDF you • Adjourn. Defense Nuclear Facilities Safety Board must have Adobe Acrobat Reader, Breaks Taken As Appropriate. (DNFSB) requested clarification on which is available free at this site. If you Public Participation: The EM SSAB, DOE’s response to Recommendation have questions about using PDF, call the Paducah, welcomes the attendance of 2011–1, Safety Culture at the Waste U.S. Government Printing Office (GPO), the public at its advisory committee Treatment and Immobilization Plant. In toll free at 1–866–512–1800; or in the meetings and will make every effort to accordance with section 315(b) of the Washington, DC area at 202–512–0000. accommodate persons with physical Atomic Energy Act of 1954, as amended, Dated: September 28, 2011. disabilities or special needs. If you 42 U.S.C. 2286d(b), the following Alexa Posny, require special accommodations due to represents the Secretary of Energy’s Assistant Secretary, Office of Special a disability, please contact Reinhard clarification response to the DNFSB’s Education and Rehabilitative Services. Knerr as soon as possible in advance of request. [FR Doc. 2011–25542 Filed 10–3–11; 8:45 am] the meeting at the telephone number ADDRESSES: Send comments, data, BILLING CODE 4000–01–P listed above. Written statements may be views, or arguments concerning the filed with the Board either before or Secretary’s response to: Defense Nuclear after the meeting. Individuals who wish Facilities Safety Board, 625 Indiana DEPARTMENT OF ENERGY to make oral statements pertaining to Avenue, NW., Suite 700, Washington, agenda items should contact Reinhard DC 20004 within thirty (30) days from Environmental Management Site- Knerr at the telephone number listed the date of this publication. Specific Advisory Board, Paducah above. Requests must be received as FOR FURTHER INFORMATION CONTACT: Mr. soon as possible prior to the meeting John Vorderbrueggen, Nuclear Engineer, AGENCY: Department of Energy. and reasonable provision will be made Departmental Representative to the ACTION: Notice of open meeting. to include the presentation in the Defense Nuclear Facilities Safety Board, agenda. The Deputy Designated Federal SUMMARY: Office of Health, Safety and Security, This notice announces a Officer is empowered to conduct the U.S. Department of Energy, 1000 meeting of the Environmental meeting in a fashion that will facilitate Independence Avenue, SW., Management Site-Specific Advisory the orderly conduct of business. Washington, DC 20585. Board (EM SSAB), Paducah. The Individuals wishing to make public Federal Advisory Committee Act (Pub. comments will be provided a maximum Issued in Washington, DC, on September L. No. 92–463, 86 Stat. 770) requires of five minutes to present their 19, 2011. that public notice of this meeting be comments. The EM SSAB, Paducah, Mari-Josette Campagnone, announced in the Federal Register. will hear public comments pertaining to Departmental Representative to the Defense DATES: Thursday, October 20, 2011, 6 its scope (clean-up standards and Nuclear Facilities Safety Board, Office of p.m. environmental restoration; waste Health, Safety and Security. ADDRESSES: Barkley Centre, 111 management and disposition; September 19, 2011 Memorial Drive, Paducah, Kentucky stabilization and disposition of non- The Honorable Peter S. Winokur 42001. stockpile nuclear materials; excess Chairman facilities; future land use and long-term FOR FURTHER INFORMATION CONTACT: Defense Nuclear Facilities Safety Board stewardship; risk assessment and Reinhard Knerr, Deputy Designated 625 Indiana Avenue, NW, Suite 700 management; and clean-up science and Washington, DC 20004–2901 Federal Officer, Department of Energy technology activities). Comments Dear Mr. Chairman: Paducah Site Office, Post Office Box outside of the scope may be submitted 1410, MS–103, Paducah, Kentucky via written statement as directed above. This letter responds to your August 42001. Phone (270) 441–6825. 12, 2011 letter, which requested Minutes: Minutes will be available by clarification on four areas identified in SUPPLEMENTARY INFORMATION: writing or calling Reinhard Knerr at the our original June 30, 2011, response to Purpose of the Board: The purpose of address and phone number listed above. your Recommendation 2011–1, Safety the Board is to make recommendations Minutes will also be available at the Culture at the Waste Treatment and to DOE–EM and site management in the following Web site: http:// Immobilization Plant (WTP). As you areas of environmental restoration, www.pgdpcab.energy.gov/ know, because this issue is of such great waste management, and related 2011Meetings.html. activities. importance to the Department of Energy Issued at Washington, DC on September (DOE), I have designated Deputy Tentative Agenda 28, 2011. Secretary Poneman as the Responsible • Call to Order, Introductions, Review LaTanya R. Butler, Manager for this Recommendation, and of Agenda. Acting Deputy Committee Management he has already begun our efforts to • Deputy Designated Federal Officer’s Officer. address the issues our staffs have Comments. [FR Doc. 2011–25559 Filed 10–3–11; 8:45 am] discussed. The Department appreciates • Federal Coordinator’s Comments. BILLING CODE 6450–01–P the opportunity to provide further

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clarification and believes that keeping Board that such perceptions can have a Steven Chu avenues of communication open will material effect on the safety culture at a [FR Doc. 2011–25523 Filed 10–3–11; 8:45 am] help improve our safety culture. In our site and in a community. In developing BILLING CODE 6450–01–P previous correspondence, the our Implementation Plan on Department conveyed its acceptance of Recommendation 2011–1, the DOE the Recommendation 2011–1 and now therefore will continue to work to DEPARTMENT OF ENERGY offers the following clarification in the establish a strong safety culture that areas requested: takes the power of perceptions fully into Federal Energy Regulatory 1. DOE’s present assessment of the account. Commission safety culture at WTP in light of the 4. The independence, public stature, Combined Notice of Filings #1 additional sources of supporting and leadership experience of the information now available to DOE. implementation team that will be called Take notice that the Commission The Department has reviewed the upon to provide safety culture insights incoming public comments and received the following electric rate and assessments to the Secretary and filings: additional WTP safety culture-related Senior DOE leadership. information. On one hand, we are Docket Numbers: ER11–4008–001. pleased that individuals have felt We accept the implicit premise of the Applicants: Public Service Company encouraged to step forward and express request, i.e., that the independence, of New Mexico. their concerns, to the extent that stature, and leadership experience of the Description: Public Service Company indicates that our broad message implementation team that will be called of New Mexico submits tariff filing per welcoming such input is being heard. upon to provide safety culture insights 35: ANPP HVS Part. Agreement Rate On the other hand, the content of many and assessments to the Secretary and Schedule 117 to be effective 9/7/2011. of these messages shows that we need Senior DOE leadership is of crucial Filed Date: 09/23/2011. to continue to improve WTP’s safety importance. In this regard, the review Accession Number: 20110923–5002. culture. The Department will also team members are selected based on Comment Date: 5 p.m. Eastern Time continue to evaluate the efficacy of their technical competence, objectivity, on Friday, October 14, 2011. applicable DOE and contractor policies experience in safety management, Docket Numbers: ER11–2224–010. and procedures, including the executive leadership, and a clear Applicants: New York Independent procedures for resolving differing understanding of corporate culture. DOE System Operator, Inc. professional opinions and other recognizes the heightened need to Description: New York Independent employee concerns. include ‘‘knowledgeable others’’ in the System Operator, Inc. submits tariff 2. DOE’s current understanding of the safety culture review process. The filing per 35: NYISO Compliance Filing conclusions of the HSS report. Department will therefore engage Regarding ICAP Demand Curves to be The Health, Safety and Security (HSS) independent industry safety culture effective 9/15/2011. report, like all reports based on experts to evaluate the Implementation Filed Date: 09/22/2011. interviews, captured a snapshot in time. Plan (IP), and also to evaluate the Accession Number: 20110922–5121. The report reflected the views of the quality of major IP deliverables. Comment Date: 5 p.m. Eastern Time interviewees as they perceived the Both DOE and Bechtel National on Monday, October 3, 2011. existing situation, as interpreted by the Incorporated (BNI) will be performing Docket Numbers: ER11–4606–000. report’s authors. As your letter implies, safety culture reviews at WTP. The Applicants: Dragon Energy, LLC. given our steadfast commitment to Department welcomes BNI’s initiative in Description: Dragon Energy, LLC safety we must continually update data engaging qualified industry experts. submits tariff filing per 35.1: FERC and refresh conclusions based on what DOE will monitor and cooperate with— Electric MBR Baseline Tariff Filing to be we learn. We have done that by but not partner in—the BNI review in effective 9/22/2011. reviewing the incoming comments we order to gauge the validity of the BNI Filed Date: 09/22/2011. have received during the Deputy process. DOE will also examine the Accession Number: 20110922–5107. Secretary’s July visit to Hanford and results of the review for relevant Comment Date: 5 p.m. Eastern Time subsequently through other channels; as findings. on Thursday, October 13, 2011. noted above, these have made clear that Of course, BNI’s activities are not a Docket Numbers: ER11–4607–000. we have more work to do. That is why substitute for DOE-directed reviews, we have asked HSS to conduct a follow- Applicants: Energy Cooperative of which is why we are undertaking our New York, Inc. on safety culture review at WTP as part own assessment concurrently. The HSS of its broader extent-of-condition review Description: Energy Cooperative of review will also help update our New York, Inc submits tariff filing per across the DOE complex. Those reviews understanding of the current status of are scheduled to begin later this month, 35.1: ECNY MBR Re-File to be effective nuclear safety culture at WTP. The 9/22/2011. and we will apply what we learn in results of the HSS review will, of those reviews to continue our efforts to Filed Date: 09/22/2011. course, be shared with the Board upon Accession Number: 20110922–5113. improve the safety culture at Hanford. its completion. 3. DOE’s present understanding and Comment Date: 5 p.m. Eastern Time response to Sub-recommendation 3. I hope this clarification is helpful. We on Thursday, October 13, 2011. DOE understands the distinction are enthusiastic about our work toward Docket Numbers: ER11–4608–000. being made by the Board that there is a the shared goal of safety excellence Applicants: New York Industrial difference between judging the merits of throughout the DOE complex. Given the Energy Buyers, LLC. a particular case between opposing importance of this issue, I hope you will Description: New York Industrial parties still in dispute, and the effect continue to work closely with Deputy Energy Buyers, LLC submits tariff filing that the perceptions of that Secretary Poneman as we strengthen our per 35.1: NYIEB MBR Re-File to be controversy—regardless of the merits of efforts to promote a strong safety culture effective 9/22/2011. the underlying case—may have on a at WTP and across the DOE complex. Filed Date: 09/22/2011. community. We also agree with the Sincerely, Accession Number: 20110922–5117.

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Comment Date: 5 p.m. Eastern Time The filings are accessible in the Transporter’s Use Gas Annual on Thursday, October 13, 2011. Commission’s eLibrary system by Adjustment to be effective 11/1/2011. Docket Numbers: ER11–4609–000. clicking on the links or querying the Filed Date: 09/23/2011. Applicants: Triton Power Michigan docket number. Accession Number: 20110923–5053 LLC. Any person desiring to intervene or Comment Date: 5 p.m. Eastern Time Description: Triton Power Michigan protest in any of the above proceedings on Wednesday, October 05, 2011. LLC submits tariff filing per 35.1: must file in accordance with Rules 211 Docket Numbers: RP11–2584–000. Baseline eTariff Filing Pursuant to and 214 of the Commission’s Applicants: Texas Gas Transmission, Order No. 714 to be effective 9/22/2011. Regulations (18 CFR 385.211 and LLC. Filed Date: 09/22/2011. 385.214) on or before 5 p.m. Eastern Description: Texas Gas Transmission, Accession Number: 20110922–5118. time on the specified comment date. LLC submits tariff filing per 154.204: Comment Date: 5 p.m. Eastern Time Protests may be considered, but Storage Update Filing to be effective 11/ on Thursday, October 13, 2011. intervention is necessary to become a 1/2011. Docket Numbers: ER11–4610–000. party to the proceeding. Filed Date: 09/23/2011. Applicants: PJM Interconnection, eFiling is encouraged. More detailed Accession Number: 20110923–5054. LLC. information relating to filing Comment Date: 5 p.m. Eastern Time Description: PJM Interconnection, requirements, interventions, protests, on Wednesday, October 05, 2011. LLC submits tariff filing per service, and qualifying facilities filings Docket Numbers: RP11–2585–000. 35.13(a)(2)(iii): Queue Position V3–036; can be found at: http://www.ferc.gov/ Applicants: Venice Gathering System, Original Service Agreement Nos. 3059 & docs-filing/efiling/filing-req.pdf. For LLC. 3060 to be effective 8/23/2011. other information, call (866) 208–3676 Description: Venice Gathering System, Filed Date: 09/22/2011. (toll free). For TTY, call (202) 502–8659. LLC submits tariff filing per 154.204: Accession Number: 20110922–5120. Dated: September 23, 2011. Section 31, Off-System Capacity to be Comment Date: 5 p.m. Eastern Time Nathaniel J. Davis, Sr., effective 10/24/2011. on Thursday, October 13, 2011. Filed Date: 09/23/2011. Deputy Secretary. Accession Number: 20110923–5084. Docket Numbers: ER11–4611–000. [FR Doc. 2011–25439 Filed 10–3–11; 8:45 am] Applicants: Idaho Power Company. Comment Date: 5 p.m. Eastern Time Description: Idaho Power Company BILLING CODE 6717–01–P on Wednesday, October 05, 2011. submits tariff filing per 35.13(a)(2)(iii): Docket Numbers: RP11–2586–000. BPA NITSA Oct 2011 to be effective 10/ DEPARTMENT OF ENERGY Applicants: Columbia Gas 1/2011. Transmission, LLC. Filed Date: 09/22/2011. Federal Energy Regulatory Description: Columbia Gas Accession Number: 20110922–5122. Commission Transmission, LLC submits tariff filing Comment Date: 5 p.m. Eastern Time per 154.204: Negotiated Rate Service on Thursday, October 13, 2011. Combined Notice of Filings Agreement—NJR to be effective 9/24/ Docket Numbers: ER11–4612–000. 2011. Take notice that the Commission has Applicants: Barrick Goldstrike Mines Filed Date: 09/23/2011. received the following Natural Gas Inc. Accession Number: 20110923–5097 Pipeline Rate and Refund Report filings: Description: BARRICK GOLDSTRIKE Comment Date: 5 p.m. Eastern Time MINES INC. Notice of Cancellation of Filings Instituting Proceedings on Wednesday, October 05, 2011. Market-Based Rate Tariff Issued. Docket Numbers: RP11–2587–000. Filed Date: 09/23/2011. Docket Numbers: RP11–2581–000. Applicants: USG Pipeline Company. Accession Number: 20110923–5015. Applicants: CenterPoint Energy Gas Description: USG Pipeline Company Comment Date: 5 p.m. Eastern Time Transmission Company, LLC. submits tariff filing per 154.204: on Friday, October 14, 2011. Description: CenterPoint Energy Gas Negotiated Rate filing with CDNAG to Transmission Company, LLC submits Docket Numbers: ER11–4613–000. be effective 10/24/2011. Applicants: DB Energy Trading LLC. tariff filing per 154.403(d)(2): CEGT Filed Date: 09/23/2011. Description: DB Energy Trading LLC LLC—Fuel Tracker Filing, to be effective Accession Number: 20110923–5141. submits tariff filing per 35.1: DB Energy 11/1/2011. Comment Date: 5 p.m. Eastern Time Trading LLC Rate Schedule FERC No. 1 Filed Date: 09/23/2011. on Wednesday, October 05, 2011. Baseline Filing to be effective 9/23/ Accession Number: 20110923–5051 Docket Numbers: RP11–2589–000. 2011. Comment Date: 5 p.m. Eastern Time Applicants: Gulf Crossing Pipeline Filed Date: 09/23/2011. on Wednesday, October 05, 2011. Company LLC. Accession Number: 20110923–5036. Docket Numbers: RP11–2582–000. Description: Gulf Crossing Pipeline Comment Date: 5 p.m. Eastern Time Applicants: Viking Gas Transmission Company LLC submits tariff filing per on Friday, October 14, 2011. Company 154.204: Create PAL Service to be Docket Numbers: ER11–4614–000. Description: Viking Gas Transmission effective 11/1/2011. Applicants: Discount Energy Group, Company submits tariff filing per Filed Date: 09/26/2011. LLC. 154.204: Semi Annual FLRP—Fall 2011 Accession Number: 20110926–5066. Description: Discount Energy Group, to be effective 11/1/2011. Comment Date: 5 p.m. Eastern Time LLC submits tariff filing per 35.1: Filed Date: 09/23/2011. on Tuesday, October 11, 2011. Discount Energy FERC Electric Tariff, Accession Number: 20110923–5052. Docket Numbers: RP11–2590–000. Volume No. 1 Baseline to be effective 9/ Comment Date: 5 p.m. Eastern Time Applicants: Dominion Cove Point 23/2011. on Wednesday, October 05, 2011. LNG, LP. Filed Date: 09/23/2011. Docket Numbers: RP11–2583–000. Description: Dominion Cove Point Accession Number: 20110923–5049. Applicants: Guardian Pipeline, LLC. LNG, LP submits tariff filing per Comment Date: 5 p.m. Eastern Time Description: Guardian Pipeline, LLC 154.203: DCP—2011 Revenue Crediting on Friday, October 14, 2011. submits tariff filing per 154.204: 2011 Report to be effective N/A.

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Filed Date: 09/26/2011. Description: Tennessee Gas Pipeline requirements, interventions, protests, Accession Number: 20110926–5079. Company submits tariff filing per: and service can be found at: http:// Comment Date: 5 p.m. Eastern Time Quality Interchangeability Settlement www.ferc.gov/docs-filing/efiling/filing- on Tuesday, October 11, 2011. Pro Forma to be effective 12/31/9998. req.pdf. For other information, call (866) Any person desiring to intervene or Filed Date: 09/22/2011. 208–3676 (toll free). For TTY, call (202) protest in any of the above proceedings Accession Number: 20110922–5090. 502–8659. must file in accordance with Rules 211 Initial Comment Date: 5 p.m. Eastern Dated: September 23, 2011. Time on Monday, October 03, 2011. and 214 of the Commission’s Nathaniel J. Davis, Sr., Regulations (18 CFR § 385.211 and Reply Comment Date: 5 p.m. Eastern Time on Tuesday, October 11, 2011. Deputy Secretary. § 385.214) on or before 5 p.m. Eastern [FR Doc. 2011–25441 Filed 10–3–11; 8:45 am] time on the specified comment date. Docket Numbers: RP11–2577–000. BILLING CODE 6717–01–P Protests may be considered, but Applicants: Dominion Transmission, intervention is necessary to become a Inc. Description: Dominion Transmission, party to the proceeding. DEPARTMENT OF ENERGY Inc. submits tariff filing per 154.204: Filings in Existing Proceedings DTI—Abandonment of X–71 and X–72 Federal Energy Regulatory Docket Numbers: RP11–2486–001. to be effective 11/1/2011. Commission Filed Date: 09/22/2011. Applicants: Algonquin Gas [Docket No. PR11–129–000] Transmission, LLC. Accession Number: 20110922–5088. Comment Date: 5 p.m. Eastern Time Description: Algonquin Gas on Tuesday, October 04, 2011. Acadian Gas Pipeline System; Notice Transmission, LLC submits tariff filing of Petition for Rate Approval per 154.205(b): Amendment to ConEd Docket Numbers: RP11–2578–000. 2011–09–01 Releases to be effective 9/ Applicants: Guardian Pipeline, L.L.C. Take notice that on September 26, 1/2011. Description: Guardian Pipeline, L.L.C. 2011, Acadian Gas Pipeline System Filed Date: 09/26/2011. submits tariff filing per 154.204: EPC (Acadian) filed a petition pursuant to Accession Number: 20110926–5089. Semi Annual Adjustment—Fall 2011 to section 284.123 of the Commission’s Comment Date: 5 p.m. Eastern Time be effective 11/1/2011. regulations, a petition for approval of on Tuesday, October 11, 2011. Filed Date: 09/22/2011. rates for transportation services Accession Number: 20110922–5096. Any person desiring to protest in any authorized under Section 311(a)(2) of Comment Date: 5 p.m. Eastern Time the Natural Gas Policy Act of 1978 and the above proceedings must file in on Tuesday, October 04, 2011. accordance with Rule 211 of the a revised Statement of Operating Docket Numbers: RP11–2579–000. Commission’s Regulations (18 CFR Conditions, as more fully described in Applicants: Mississippi Hub, LLC. 385.211) on or before 5 p.m. Eastern the application. Description: Annual Penalty time on the specified comment date. Any person desiring to participate in Disbursement Report of Mississippi The filings are accessible in the this rate filing must file in accordance Hub, LLC. Commission’s eLibrary system by with Rules 211 and 214 of the Filed Date: 09/23/2011. Commission’s Rules of Practice and clicking on the links or querying the Accession Number: 20110923–5016. docket number. Procedure (18 CFR 385.211 and Comment Date: 5 p.m. Eastern Time 385.214). Protests will be considered by eFiling is encouraged. More detailed on Wednesday, October 05, 2011. information relating to filing the Commission in determining the requirements, interventions, protests, Docket Numbers: RP11–2580–000. appropriate action to be taken, but will and service can be found at: http:// Applicants: CenterPoint Energy— not serve to make protestants parties to www.ferc.gov/docs-filing/efiling/filing- Mississippi River Transmission, LLC. the proceeding. Any person wishing to req.pdf. For other information, call (866) Description: CenterPoint Energy— become a party must file a notice of 208–3676 (toll free). For TTY, call (202) Mississippi River Transmission, LLC intervention or motion to intervene, as 502–8659. submits tariff filing per 154.403(d)(2): appropriate. Such notices, motions, or 2011 Fuel Adjustment Filing to be protests must be filed on or before the Dated: September 27, 2011. effective 11/1/2011. date as indicated below. Anyone filing Nathaniel J. Davis, Sr., Filed Date: 09/23/2011. an intervention or protest must serve a Deputy Secretary. Accession Number: 20110923–5022. copy of that document on the Applicant. [FR Doc. 2011–25440 Filed 10–3–11; 8:45 am] Comment Date: 5 p.m. Eastern Time Anyone filing an intervention or protest BILLING CODE 6717–01–P on Wednesday, October 05, 2011. on or before the intervention or protest Any person desiring to intervene or date need not serve motions to intervene protest in any of the above proceedings or protests on persons other than the DEPARTMENT OF ENERGY must file in accordance with Rules 211 Applicant. and 214 of the Commission’s The Commission encourages Federal Energy Regulatory Regulations (18 CFR 385.211 and electronic submission of protests and Commission 385.214) on or before 5 p.m. Eastern interventions in lieu of paper using the ‘‘eFiling’’ link at http://www.ferc.gov. Combined Notice of Filings time on the specified comment date. Protests may be considered, but Persons unable to file electronically Take notice that the Commission has intervention is necessary to become a should submit an original and 7 copies received the following Natural Gas party to the proceeding. of the protest or intervention to the Pipeline Rate and Refund Report filings: The filings are accessible in the Federal Energy Regulatory Commission, Commission’s eLibrary system by 888 First Street, NE., Washington, DC Filings Instituting Proceedings clicking on the links or querying the 20426. Docket Numbers: RP11–1942–000. docket number. This filing is accessible on-line at Applicants: Tennessee Gas Pipeline eFiling is encouraged. More detailed http://www.ferc.gov, using the Company. information relating to filing ‘‘eLibrary’’ link and is available for

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review in the Commission’s Public Air Quality, mail code 6406J, to, a collection of information, unless it Reference Room in Washington, DC. Environmental Protection Agency, 1200 displays a currently valid OMB control There is an ‘‘eSubscription’’ link on the Pennsylvania Ave., NW., Washington, number. The OMB control numbers for Web site that enables subscribers to DC 20460; telephone number: 202–343– EPA’s regulations in title 40 of the CFR, receive e-mail notification when a 9027; fax number 202–343–2801; e-mail after appearing in the Federal Register document is added to a subscribed address: [email protected]. when approved, are listed in 40 CFR docket(s). For assistance with any FERC SUPPLEMENTARY INFORMATION: EPA has part 9, are displayed either by Online service, please e-mail submitted the following ICR to OMB for publication in the Federal Register or [email protected], or call review and approval according to the by other appropriate means, such as on (866) 208–3676 (toll free). For TTY, call procedures prescribed in 5 CFR 1320.12. the related collection instrument or (202) 502–8659. On Wednesday, May 18, 2011 (76 FR form, if applicable. The display of OMB Comment Date: 5 p.m. Eastern Time 28768), EPA sought comments on this control numbers in certain EPA on Tuesday, October 11, 2011. ICR pursuant to 5 CFR 1320.8(d). EPA regulations is consolidated in 40 CFR Dated: September 27, 2011. received no comments. Any additional part 9. Abstract: Gasoline combustion is the Kimberly D. Bose, comments on this ICR should be submitted to EPA and OMB within 30 major source of air pollution in most Secretary. urban areas. In the 1990 amendments to [FR Doc. 2011–25474 Filed 10–3–11; 8:45 am] days of this notice. EPA has established a public docket the Clean Air Act (Act), section 211(k), BILLING CODE 6717–01–P Congress required that gasoline for this ICR under Docket ID No. EPA– dispensed in nine areas with severe air HQ–OAR–2003–0213, which is quality problems, and areas that opt-in, available for online viewing at http:// ENVIRONMENTAL PROTECTION be reformulated to reduce toxic and www.regulations.gov, or in person AGENCY ozone-forming emissions. Congress also viewing at the Office of Air and required that, in the process of [EPA–HQ–OAR–2003–0213; FRL–9474–9] Radiation Docket in the EPA Docket producing reformulated gasoline (RFG), Center (EPA/DC), EPA West, Room dirty components removed in the Agency Information Collection 3334, 1301 Constitution Ave., NW., reformulation process not be ‘‘dumped’’ Activities; Submission to OMB for Washington, DC. The EPA/DC Public Review and Approval; Comment into the remainder of the country’s Reading Room is open from 8:30 a.m. to gasoline, known as conventional Request; Fuel and Fuel Additives 4:30 p.m., Monday through Friday, (Renewal) gasoline (CG). The Environmental excluding legal holidays. The telephone Protection Agency (EPA) promulgated AGENCY: Environmental Protection number for the Reading Room is 202– regulations at 40 CFR part 80, subpart Agency (EPA). 566–1744, and the telephone number for D—Reformulated Gasoline, Subpart E— the Office of Air and Radiation Docket ACTION: Notice. Anti-Dumping, and Subpart F—Attest is 202–566–1742. Engagements, implementing the SUMMARY: In compliance with the Use EPA’s electronic docket and statutory requirements, which include Paperwork Reduction Act (PRA) (44 comment system at http:// standards for RFG (80.41) and CG U.S.C. 3501 et seq.), this document www.regulations.gov, to submit or view (80.101). The regulations also contain announces that an Information public comments, access the index reporting and recordkeeping Collection Request (ICR) has been listing of the contents of the docket, and requirements for the production, forwarded to the Office of Management to access those documents in the docket importation, transport and storage of and Budget (OMB) for review and that are available electronically. Once in gasoline, in order to demonstrate approval. This is a request to renew an the system, select ‘‘docket search,’’ then compliance and facilitate compliance existing approved collection. The ICR, key in the docket ID number identified and enforcement. The program is run by which is abstracted below, describes the above. Please note that EPA’s policy is the Office of Transportation and Air nature of the information collection and that public comments, whether Quality, Office of Air and Radiation. its estimated burden and cost. submitted electronically or in paper, Enforcement is done by the Air will be made available for public DATES: Additional comments may be Enforcement Division, Office of submitted on or before November 3, viewing at http://www.regulations.gov Regulatory Enforcement, Office of 2011. as EPA receives them and without Enforcement and Compliance change, unless the comment contains Assurance. This program excludes ADDRESSES: Submit your comments, copyrighted material, confidential California, which has separate referencing Docket ID No. EPA–HQ– business information (CBI), or other requirements for gasoline. OAR–2003–0213, to (1) EPA online information whose public disclosure is The United States has an annual using http://www.regulations.gov (our restricted by statute. For further gasoline consumption of about 133 preferred method), by e-mail to a-and- information about the electronic docket, billion gallons, of which about 30% is [email protected] or by mail to: EPA go to http://www.regulations.gov. RFG. In 2009 EPA received reports from Docket Center, Environmental Title: Fuel and Fuel Additives 255 refineries, 60 importer facilities/ Protection Agency, Air and Radiation (Renewal). facility groups, 44 oxygenate blending Docket, Mail code: 28221T, 1200 ICR numbers: EPA ICR No. 1591.25, facilities, 21 independent laboratory Pennsylvania Ave., NW., Washington, OMB Control No. 2060–0277. facilities, and the RFG Survey DC 20460, and (2) OMB by mail to: ICR Status: This ICR is currently Association, Inc. under this program. Office of Information and Regulatory scheduled to expire on 10/31/11. Under Burden Statement: The annual public Affairs, Office of Management and OMB regulations, the Agency may reporting and recordkeeping burden for Budget (OMB), Attention: Desk Officer continue to conduct or sponsor the this collection of information is for EPA, 725 17th Street, NW., collection of information while this estimated to average 2.4 hours per Washington, DC 20503. submission is pending at OMB. An response. Burden means the total time, FOR FURTHER INFORMATION CONTACT: Jose Agency may not conduct or sponsor, effort, or financial resources expended M. Solar, Office of Transportation and and a person is not required to respond by persons to generate, maintain, retain,

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or disclose or provide information to or solicits nominations to fill five (5) new candidates, the agency encourages for a Federal agency. This includes the vacancies through December 15, 2014. nominations of women and men of all time needed to review instructions; To maintain the representation required racial and ethnic groups. develop, acquire, install, and utilize by statute, nominees will be selected to All nominations will be fully technology and systems for the purposes represent: State and local agencies (one considered, but applicants need to be of collecting, validating, and verifying vacancy), organizations or groups aware of the specific representation information, processing and demonstrating an active interest in the required by statute: State and local maintaining information, and disclosing field of public water supply and public agencies concerned with public water and providing information; adjust the health protection (two vacancies), and supply (one vacancy), organizations or existing ways to comply with any the general public (two vacancies). groups demonstrating an active interest previously applicable instructions and DATES: Nominations should be in the field of public water supply and requirements which have subsequently submitted on or before October 31, public health protection (two vacancies, changed; train personnel to be able to 2011. one associated with small, rural public respond to a collection of information; water systems), and the general public search data sources; complete and ADDRESSES: Submit nominations to (two vacancies). Other criteria used to review the collection of information; Suzanne Kelly, Designated Federal evaluate nominees will include: and transmit or otherwise disclose the Officer, National Drinking Water • Background and experience that information. Advisory Council, U.S. Environmental would help members to contribute to Respondents/Affected Entities: Protection Agency, Office of Ground the diversity of perspectives (e.g., Refiners, Oxygenate Blenders, and Water and Drinking Water (Mail Code geographic, economic, social and Importers of Gasoline; Requirements for 4601–M), 1200 Pennsylvania Avenue, cultural); • parties in the Gasoline Distribution NW., Washington, DC 20460. You may Demonstrated experience with Network. also e-mail nominations with the subject drinking water issues at the national, Estimated Number of Respondents: line NDWACResume2012 at State or local level; and • 4,068. [email protected]. Excellent interpersonal, oral and Frequency of Response: Once, FOR FURTHER INFORMATION CONTACT: written communication and consensus- Quarterly, Annually, on Occasion. E-mail your questions to Jacquelyn building skills. Estimated Total Annual Hour Burden: Springer, at [email protected] Nominations must include a resume, 127,041. or call 202–564–9904. providing the nominee’s background, Estimated Total Annual Cost: SUPPLEMENTARY INFORMATION: experience and educational $38,686,442, which includes National Drinking Water Advisory qualifications, as well as a brief $24,713,032 annualized capital or O&M Council: The Council was created by statement (one page or less) describing costs, and $13,973,410 in labor costs. Congress on December 16, 1974, as part the nominee’s interest in serving on the Changes in the Estimates: There is no of the Safe Drinking Water Act of 1974, Council. Nominees should be identified change in the hour estimated burden Public Law 93–523, 42 U.S.C. 300j–5 by name, occupation, position, current currently identified in the OMB and is operated in accordance with the business address, and e-mail and Inventory of Approved ICR Burdens. provisions of the Federal Advisory telephone number. Interested candidates may self nominate. Dated: September 28, 2011. Committee Act (FACA), 5 U.S.C. App.2. Persons selected for membership will The Council consists of 15 members, John Moses, receive compensation for travel and a including a Chairperson, appointed by Director, Collection Strategies Division. nominal daily compensation (if EPA’s Deputy Administrator. Five [FR Doc. 2011–25502 Filed 10–3–11; 8:45 am] appropriate) while attending meetings. members represent the general public; BILLING CODE 6560–50–P Additionally, selected candidates will five members represent appropriate be required to fill out the ‘‘Confidential State and local agencies concerned with Financial Disclosure Form for EPA water hygiene and public water supply; ENVIRONMENTAL PROTECTION Special Government Employees.’’ This and five members represent private AGENCY confidential form allows government organizations or groups demonstrating officials to determine whether there is a [FRL–9475–2] an active interest in the field of water statutory conflict between that person’s hygiene and public water supply, of National Drinking Water Advisory public responsibilities (which includes which two members shall represent Council; Request for Nominations membership on an EPA Federal small, rural public water systems. The advisory committee) and private AGENCY: current list of members is available on Environmental Protection interests and activities, or the the EPA Web site at: http:// Agency (EPA). appearance of a lack of impartiality, as water.epa.gov/drink/ndwac/. ACTION: Request for Nominations. defined by Federal regulation. The Council meets face-to-face twice Other sources, in addition to this SUMMARY: The EPA invites nominations each year, generally in the spring and Federal Register notice, may also be from a diverse range of qualified fall. Additionally, members may be utilized in the solicitation of nominees. candidates to be considered for a three- asked to participate in teleconference To help the EPA in evaluating the year appointment to the National meetings or ad hoc workgroups to effectiveness of its outreach efforts, Drinking Water Advisory Council develop policy recommendations, please tell us how you learned of this (Council). The 15 member Council was advice letters and reports to address opportunity. established by the Safe Drinking Water specific program issues. Act (SDWA) to provide practical and Member Nominations: Any interested Dated: September 28, 2011. independent advice, consultation and person and/or organization may Cynthia C. Dougherty, recommendations to the EPA nominate qualified individuals for Director, Office of Ground Water and Drinking Administrator on the activities, membership. The EPA values and Water. functions, policies, and regulations welcomes diversity. In an effort to [FR Doc. 2011–25501 Filed 10–3–11; 8:45 am] required by the SDWA. This notice obtain nominations of diverse BILLING CODE 6560–50–P

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FEDERAL COMMUNICATIONS to [email protected]. Include in collection titled, ‘‘Establishment of COMMISSION the comments the OMB control number Policies and Service Rules for the as shown in the SUPPLEMENTARY Broadcasting-Satellite Service at the Information Collection Being INFORMATION section below. 17.3–17.7 GHz Frequency Band and at Submitted for Review and Approval to FOR FURTHER INFORMATION CONTACT: For the 17.7–17.8 GHz Frequency Band the Office of Management and Budget additional information or copies of the Internationally, and at the 24.75–25.25 GHz Frequency Band for Fixed Satellite AGENCY: Federal Communications information collection, contact Cathy Commission. Williams at (202) 418–2918. To view a Services Providing Feeder Links to the Broadcasting-Satellite Service and for ACTION: copy of this information collection Notice and request for the Satellite Services Operating Bi- comments. request (ICR) submitted to OMB: (1) Go to the web page http://www.reginfo.gov/ directionally in the 17.3–17.8 GHz SUMMARY: The Federal Communications public/do/PRAMain, (2) look for the Frequency Band (17/24 GHz BSS).’’ On Commission (FCC), as part of its section of the Web page called June 14, 2011, the Commission released continuing effort to reduce paperwork ‘‘Currently Under Review,’’ (3) click on a Second Report and Order (Order) burdens, invites the general public and the downward-pointing arrow in the titled, ‘‘In the Matter of The other Federal agencies to take this ‘‘Select Agency’’ box below the Establishment of Policies and Service opportunity to comment on the ‘‘Currently Under Review’’ heading, (4) Rules for the Broadcasting-Satellite following information collection, as select ‘‘Federal Communications Service at the 17.3–17.7 GHz Frequency required by the Paperwork Reduction Commission’’ from the list of agencies Band and at the 17.7–17.8 Frequency Act (PRA) of 1995. An agency may not presented in the ‘‘Select Agency’’ box, Band Internationally, and at the 24.75– conduct or sponsor a collection of (5) click the ‘‘Submit’’ button to the 25.25 GHz Frequency Band for Fixed information unless it displays a right of the ‘‘Select Agency’’ box, (6) Satellite Services Providing Feeder currently valid control number. No when the list of FCC ICRs currently Links to the Broadcasting-Satellite person shall be subject to any penalty under review appears, look for the OMB Service and for the Satellite Services for failing to comply with a collection control number of this ICR and then Operating Bi-directionally in the 17.3– of information subject to the PRA that click on the ICR Reference Number. A 17.8 GHz Frequency Band’’ IB Docket does not display a valid control number. copy of the FCC submission to OMB No. 06–123, FCC 11–93. A total of 8 companies have applied Comments are requested concerning (a) will be displayed. Whether the proposed collection of to the Commission to provide SUPPLEMENTARY INFORMATION: information is necessary for the proper Broadcasting Satellite Service (BSS) or OMB Control No.: 3060–1097. are currently authorized by the performance of the functions of the Title: Service Rules and Policies for Commission, including whether the Commission to provide Direct Broadcast the Broadcasting Satellite Service (BSS). Satellite Service (DBS). information shall have practical utility; Form No.: Not Applicable. (b) the accuracy of the Commission’s This Order contains the following Type of Review: Revision of a new information collection burden estimate; (c) ways to enhance currently approved collection. the quality, utility, and clarity of the requirements for which we seek OMB Respondents: Business or other for- approval: information collected; (d) ways to profit entities. minimize the burden of the collection of Number of Respondents: 8 New Information Collection information on the respondents, respondents; 48 responses. Requirements including the use of automated Estimated Time per Response: 2 47 CFR 25.114(d)(15) (iv)—Applicants collection techniques or other forms of hours—36 hours. filing for a space station authorization information technology; and (e) ways to Frequency of Response: On occasion must file the information required in further reduce the information reporting requirement. Section 26.264(a)–(b). collection burden on small business Obligation to Respond: Required to 47 CFR 25.114(d)(18)—Applicants concerns with fewer than 25 employees. obtain or retain benefits. The filing for a space station authorization in The FCC may not conduct or sponsor Commission has statutory authority for the Direct Broadcast Satellite service or a collection of information unless it the information collection requirements the 17/24 GHz broadcasting-satellite displays a currently valid control under Sections 1, 4(i), 4(j), 7(a), 301, service, must provide maximum orbital number. No person shall be subject to 303(c), 303(f), 303(g), 303(r), 303(y) and eccentricity calculations. any penalty for failing to comply with 308 of the Communications Act of 1934, 47 CFR 25.264(a)—Each applicant for a collection of information subject to the as amended, 47 U.S.C. 151, 154(i), a space station license in the 17/24 GHz PRA that does not display a valid Office 154(j), 157(a), 301, 303(c), 303(f), 303(g), broadcasting-satellite service (BSS) must of Management and Budget (OMB) 303(r), 303(y), and 308. provide a series of tables or graphs with control number. Total Annual Burden: 848 hours. its application, that contain the DATES: Written comments should be Total Annual Cost: $43,200 annual predicted transmitting antenna off-axis submitted on or before November 3, costs. gain information for each transmitting 2011. If you anticipate that you will be Privacy Act Impact Assessment: No antenna in the 17.3–17.8 GHz frequency submitting comments, but find it impact(s). band. Using a Cartesian coordinate difficult to do so within the period of Nature and Extent of Confidentiality: system wherein the X-axis is defined as time allowed by this notice, you should In general, there is no need for tangent to the geostationary orbital arc advise the contacts below as soon as confidentiality pertaining to the with the positive direction pointing possible. information collection requirements in east, i.e., in the direction of travel of the ADDRESSES: Direct all PRA comments to this collection. satellite; the Y-axis is defined as parallel Nicholas A. Fraser, OMB, via fax 202– Needs and Uses: The Federal to a line passing through the geographic 395–5167, or via e-mail Communications Commission north and south poles of the Earth, with [email protected]; and (‘‘Commission’’) is requesting that the the positive direction pointing south; to Cathy Williams, FCC, via e-mail Office of Management and Budget and the Z-axis is defined parallel to a [email protected]/mailto: [email protected] and (OMB) approve a new information line passing through the center of the

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Earth, with the positive direction (2) The pfd calculations must take subsequently-filed U.S. DBS space pointing toward the Earth, the applicant into account the maximum longitudinal station refers to any Direct Broadcast must provide the predicted transmitting station-keeping tolerance, orbital Satellite service space station antenna off-axis antenna gain inclination and orbital eccentricity of application that was filed with the information: both the 17/24 GHz BSS and DBS space Commission (or authorization granted (1) In the X–Z plane, i.e., the plane of stations, and must: by the Commission) after the 17/24 GHz the geostationary orbit, over a range of (i) Identify each prior-filed U.S. DBS BSS operator submitted the predicted ± 30 Degrees from the positive and space station at whose location the data required by paragraphs (a)–(b) of negative X-axes in increments of 5 coordination threshold pfd level of ¥ this section, but prior to the time the 17/ degrees or less. 117 dBW/m[FN2]/100 kHz is 24 GHz BSS operator submitted the (2) In planes rotated from the X–Z exceeded; and measured data required in this plane about the Z-axis, over a range of (ii) Demonstrate the extent to which up to ±60 degrees relative to the the applicant’s transmissions in the paragraph. Subsequently-filed U.S. DBS equatorial plane, in increments of 10 17.3–17.8 GHz band exceed the space stations may include foreign- degrees or less. threshold pfd level of ¥117 dBW/ licensed DBS space stations seeking (3) In both polarizations. m[FN2]/100 kHz at those prior-filed authority to serve the United States (4) At a minimum of three U.S. DBS space station locations. market. The term does not include any measurement frequencies determined (3) If the calculated pfd level is in applications (or authorizations) that with respect to the entire portion of the excess of the threshold level of ¥117 have been denied, dismissed, or are 17.3–17.8 GHz frequency band over dBW/m[FN2]/100 kHz at the location of otherwise no longer valid, nor does it which the space station is designed to any prior-filed U.S. DBS space station, include foreign-licensed DBS space transmit: 5 MHz above the lower edge the applicant must also provide with its stations that have not filed applications of the band; at the band center application certification that all affected with the Commission for market access frequency; and 5 MHz below the upper DBS operators acknowledge and do not in the United States. edge of the band. object to the applicants higher off-axis (2) The pfd calculations must take (5) Over a greater angular pfd levels. No such certification is measurement range, if necessary, to into account the maximum longitudinal required in cases where the DBS and 17/ station-keeping tolerance, orbital account for any planned spacecraft 24 GHz BSS assigned operating inclination and orbital eccentricity of orientation bias or change in operating frequencies do not overlap. orientation relative to the reference 47 CFR 25.264(c)—No later than nine both the 17/24 GHz BSS and DBS space coordinate system. The applicant must months prior to launch, each 17/24 GHz stations, and must: also explain its reasons for doing so. BSS space station applicant or (i) Identify each prior-filed U.S. DBS 47 CFR 25.264(b)—Each applicant for authorization holder must confirm the space station at whose location the a space station license in the 17/24 GHz predicted transmitting antenna off-axis coordination threshold pfd level of BSS must provide power flux density gain information provided in ¥117 dBW/m[FN2]/100 kHz is (pfd) calculations with its application accordance with § 25.114(d)(15)(iv) by exceeded; and that are based upon the predicted off- submitting measured transmitting (ii) Demonstrate the extent to which axis transmitting antenna gain antenna off-axis gain information over information submitted in accordance the applicant’s or licensee’s the angular ranges, measurement transmissions in the 17.3–17.8 GHz with paragraph (a) of this section, as frequencies and polarizations described follows: band exceed the threshold pfd level of in paragraphs (a)(1)–(5) of this section. ¥117 dBW/m[FN2]/100 kHz at those (1) The pfd calculations must be The transmitting antenna off-axis gain prior-filed U.S. DBS space station provided at the location of all prior-filed information should be measured under locations. U.S. DBS space stations where the conditions as close to flight applicant’s pfd level exceeds the configuration as possible. 47 CFR 25.264(f)—The 17/24 GHz ¥ coordination trigger of 117 dBW/ 4.47 CFR 25.264(d)—No later than BSS applicant or licensee must modify m[FN2]/100 kHz in the 17.3–17.8 GHz nine months prior to launch, each 17/ its license, or amend its application, as band. In this rule, the term prior-filed 24 GHz BSS space station applicant or appropriate, based upon new U.S. DBS space station refers to any authorization holder must provide pfd information: Direct Broadcast Satellite service space calculations based upon the measured (1) If the pfd levels submitted in station application that was filed with transmitting antenna off-axis gain accordance with paragraph (d) of this the Commission (or authorization information that is submitted in section, are in excess of those submitted granted by the Commission) prior to the accordance with paragraph (c) of this filing of the 17/24 GHz BSS application in accordance with paragraph (b) of this section as follows: section at the location of any prior-filed containing the predicted off-axis (1) The pfd calculations must be or subsequently-filed U.S. DBS space transmitting antenna gain information. provided: The term prior-filed U.S. DBS space (i) At the location of all prior-filed station as defined in paragraphs (b)(1) station does not include any U.S. DBS space stations as defined in and (d)(1) of this section, or applications (or authorizations) that paragraph (b)(1) of this section, where (2) If the 17/24 GHz BSS operator have been denied, dismissed, or are the applicant’s pfd level in the 17.3– adjusts its operating parameters in otherwise no longer valid. Prior-filed 17.8 GHz band exceeds the coordination accordance with paragraphs (e)(1)(ii) or U.S. DBS space stations may include trigger of ¥117 dBW/m[FN2]/100 kHz; (e)(2)(ii) of this section. foreign-licensed DBS space stations and Federal Communications Commission. seeking authority to serve the United (ii) At the location of any States market, but do not include subsequently-filed DBS U.S. DBS space Marlene H. Dortch, foreign-licensed DBS space stations that station where the applicant’s pfd level Secretary, Office of the Secretary, Office of have not filed applications with the in the 17.3–17.8 GHz band exceeds the Managing Director. Commission for market access in the coordination trigger of ¥117 dBW/ [FR Doc. 2011–25460 Filed 10–3–11; 8:45 am] United States. m[FN2]/100 kHz. In this rule, the term BILLING CODE 6712–01–P

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FEDERAL COMMUNICATIONS to [email protected]. Include in 185, FCC 11–110 (‘‘LPTV Digital Second COMMISSION the comments the OMB control number Report and Order’’). The LPTV Digital as shown in the SUPPLEMENTARY Second Report and Order contains rules Information Collections Being INFORMATION section below. and policies for low power stations Submitted for Review and Approval to FOR FURTHER INFORMATION CONTACT: For (‘‘LPTV’’) to transition from analog to the Office of Management and Budget additional information or copies of the digital broadcasting and states that low AGENCY: Federal Communications information collection, contact Cathy power television, TV translator, and Commission. Williams at (202) 418–2918. To view a Class A television stations operating pursuant to Special Temporary ACTION: Notice and request for copy of this information collection Authority (STA) must comply with the comments. request (ICR) submitted to OMB: (1) Go to the web page http://www.reginfo.gov/ requirements for feeable ancillary or SUMMARY: The Federal Communications public/do/PRAMain, (2) look for the supplementary services in Section Commission (FCC), as part of its section of the Web page called 73.624(g) (using FCC Form 317). This continuing effort to reduce paperwork ‘‘Currently Under Review,’’ (3) click on requirement is being submitted to the burdens, invites the general public and the downward-pointing arrow in the Office of Management and Budget other Federal agencies to take this ‘‘Select Agency’’ box below the (OMB) for review and approval. opportunity to comment on the ‘‘Currently Under Review’’ heading, (4) OMB Control Number: 3060–0386. following information collection, as select ‘‘Federal Communications Title: Special Temporary required by the Paperwork Reduction Commission’’ from the list of agencies Authorization (STA) Requests; Act (PRA) of 1995. An agency may not presented in the ‘‘Select Agency’’ box, Notifications; and Informal Filings; conduct or sponsor a collection of (5) click the ‘‘Submit’’ button to the Sections 1.5, 73.1615, 73.1635, 73.1740, information unless it displays a right of the ‘‘Select Agency’’ box, (6) and 73.3598; CDBS Informal Forms; currently valid control number. No when the list of FCC ICRs currently Section 74.788; Low Power Television, person shall be subject to any penalty under review appears, look for the OMB TV Translator and Class A Television for failing to comply with a collection control number of this ICR and then Digital Transition Notifications; FCC of information subject to the PRA that click on the ICR Reference Number. A Form 337. does not display a valid control number. copy of the FCC submission to OMB Form Number: FCC Form 337. Comments are requested concerning (a) will be displayed. Type of Review: Revision of a Whether the proposed collection of currently approved collection. SUPPLEMENTARY INFORMATION: information is necessary for the proper Respondents: Business or other for OMB Control Number: 3060–0906. profit entities; not for profit institutions; performance of the functions of the Title: 47 CFR 73.624(g), FCC Form Commission, including whether the State, local or Tribal government. 317. Number of Respondents and information shall have practical utility; Form Number: FCC Form 317. (b) the accuracy of the Commission’s Responses: 6,509 respondents; 6,509 Type of Review: Revision of a responses. burden estimate; (c) ways to enhance currently approved collection. the quality, utility, and clarity of the Estimated Hours per Response: 0.5 to Respondents: Business or other for 4 hours. information collected; (d) ways to profit entities; not for profit institutions; minimize the burden of the collection of Frequency of Response: On occasion State, local or Tribal government. reporting requirement; one time information on the respondents, Number of Respondents and including the use of automated reporting requirement. Responses: 9,391 respondents; 18,782 Total Annual Burden: 5,325 hours. collection techniques or other forms of responses. information technology; and (e) ways to Total Annual Cost: $2,126,510. Estimated Hours per Response: 2–4 Obligation To Respond: Required to further reduce the information hours. obtain or retain benefits. The statutory collection burden on small business Frequency of Response: authority for this information collection concerns with fewer than 25 employees. Recordkeeping requirement; annual The FCC may not conduct or sponsor is contained in Sections 1, 4(i) and (j), reporting requirement; one time a collection of information unless it 7, 301, 302, 303, 307, 308, 309, 312, 316, reporting requirement. displays a currently valid control 318, 319, 324, 325, 336 and 337 of the Total Annual Burden: 56,346 hours. number. No person shall be subject to Communications Act of 1934, as Total Annual Cost: $1,408,650. any penalty for failing to comply with amended. Obligation To Respond: Required to Nature and Extent of Confidentiality: a collection of information subject to the obtain or retain benefits. The statutory There is no need for confidentiality with PRA that does not display a valid Office authority for this information collection this collection of information. of Management and Budget (OMB) is contained in Sections 154(i), 301, 303, Privacy Act Assessment: No impact(s). control number. 336 and 403 of the Communications Act Needs and Uses: On July 15, 2011, the DATES: Written comments should be of 1934, as amended. Commission adopted the Second Report submitted on or before November 3, Nature and Extent of Confidentiality: and Order, In the Matter of Amendment 2011. If you anticipate that you will be There is no need for confidentiality with of Parts 73 and 74 of the Commission’s submitting comments, but find it this collection of information. Rules to Establish Rules for Digital Low difficult to do so within the period of Privacy Act Assessment: No impact(s). Power Television Translator, and time allowed by this notice, you should Needs and Uses: On July 15, 2011, the Television Booster Stations and to advise the contacts below as soon as Commission adopted the Second Report Amend Rules for Digital Class A possible. and Order, In the Matter of Amendment Television Stations, MB Docket No. 03– ADDRESSES: Direct all PRA comments to of Parts 73 and 74 of the Commission’s 185, FCC 11–110 (‘‘LPTV Digital Second Nicholas A. Fraser, OMB, via fax 202– Rules to Establish Rules for Digital Low Report and Order’’). The LPTV Digital 395–5167, or via e-mail Power Television Translator, and Second Report and Order contains rules [email protected]; and Television Booster Stations and to and policies for low power stations to Cathy Williams, FCC, via e-mail Amend Rules for Digital Class A (‘‘LPTV’’) to transition from analog to [email protected] mail to: [email protected] and Television Stations, MB Docket No. 03– digital broadcasting and states that low

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power television, TV translator, and • E-mail: [email protected] Include Dated at Washington, DC, this 28th day of Class A television stations that have not the name of the collection in the subject September 2011. already transitioned to digital must line of the message. Federal Deposit Insurance Corporation. submit a notification to the Commission • Mail: Gary A. Kuiper (202–898– Robert E. Feldman, (through an informal filing) of their 3877), Counsel, Room F–1086, Federal Executive Secretary. decision to either flash cut on their Deposit Insurance Corporation, 550 17th [FR Doc. 2011–25434 Filed 10–3–11; 8:45 am] existing analog channel or to continue Street, NW., Washington, DC 20429. BILLING CODE 6714–01–P operating their digital companion • Hand Delivery: Comments may be channel and return their analog license. hand-delivered to the guard station at This requirement is being submitted to the rear of the 17th Street Building the Office of Management and Budget (located on F Street), on business days FEDERAL RESERVE SYSTEM (OMB) for review and approval. between 7 a.m. and 5 p.m. Formations of, Acquisitions by, and Federal Communications Commission. All comments should refer to the Mergers of Bank Holding Companies Marlene H. Dortch, relevant OMB control number. A copy Secretary, Office of the Secretary, Office of of the comments may also be submitted The companies listed in this notice Managing Director. to the OMB desk officer for the FDIC: have applied to the Board for approval, [FR Doc. 2011–25461 Filed 10–3–11; 8:45 am] Office of Information and Regulatory pursuant to the Bank Holding Company Affairs, Office of Management and BILLING CODE 6712–01–P Act of 1956 (12 U.S.C. 1841 et seq.) Budget, New Executive Office Building, (BHC Act), Regulation Y (12 CFR part Washington, DC 20503. 225), and all other applicable statutes FOR FURTHER INFORMATION CONTACT: Gary and regulations to become a bank FEDERAL DEPOSIT INSURANCE A. Kuiper, at the FDIC address above. holding company and/or to acquire the CORPORATION SUPPLEMENTARY INFORMATION: Proposal assets or the ownership of, control of, or to renew the following currently the power to vote shares of a bank or Agency Information Collection approved collections of information: bank holding company and all of the Activities: Submission for OMB Title: Prompt Corrective Action. banks and nonbanking companies Review; Comment Request OMB Number: 3064–0115. owned by the bank holding company, Frequency of Response: On occasion. including the companies listed below. AGENCY: Federal Deposit Insurance Affected Public: Insured depository The applications listed below, as well Corporation (FDIC). institutions. as other related filings required by the ACTION: Notice of information collection Estimated Number of Respondents: Board, are available for immediate to be submitted to OMB for review and 50. inspection at the Federal Reserve Bank approval under the Paperwork Estimated Time per Response: 4 indicated. The application also will be Reduction Act. hours. available for inspection at the offices of Total Annual Burden: 200 hours. the Board of Governors. Interested SUMMARY: In accordance with General Description of Collection: The persons may express their views in requirements of the Paperwork Prompt Corrective Action provisions in writing on the standards enumerated in Reduction Act of 1995 (‘‘PRA’’), 44 Section 38 of the Federal Deposit the BHC Act (12 U.S.C. 1842(c)). If the U.S.C. 3501 et seq., the FDIC may not Insurance Act (12 U.S.C. 1831o) permits proposal also involves the acquisition of conduct or sponsor, and the respondent and, in some cases requires, the FDIC a nonbanking company, the review also is not required to respond to, an and other federal banking agencies to includes whether the acquisition of the information collection unless it displays take certain supervisory actions when nonbanking company complies with the a currently valid Office of Management FDIC-insured institutions fall within standards in section 4 of the BHC Act and Budget (OMB) control number. The one of five capital categories. They also (12 U.S.C. 1843). Unless otherwise FDIC, as part of its continuing effort to restrict or prohibit certain activities and noted, nonbanking activities will be reduce paperwork and respondent require the submission of a capital conducted throughout the United States. burden, invites the general public and restoration plan when an insured Unless otherwise noted, comments other Federal agencies to take this institution becomes undercapitalized. regarding each of these applications opportunity to comment on the renewal must be received at the Reserve Bank Request for Comment of existing information collections, as indicated or the offices of the Board of required by the PRA. On July 20, 2011 Comments are invited on: (a) Whether Governors not later than October 28, (76 FR 43330), the FDIC solicited public the collection of information is 2011. comment for a 60-day period on renewal necessary for the proper performance of A. Federal Reserve Bank of San of the following information collection: the FDIC’s functions, including whether Francisco (Kenneth Binning, Vice Prompt Corrective Action (OMB No. the information has practical utility; (b) President, Applications and 3064–0115). No comments were the accuracy of the estimates of the Enforcement) 101 Market Street, San received. Therefore, the FDIC hereby burden of the information collection, Francisco, California 94105–1579: gives notice of submission of its including the validity of the 1. Carpenter Fund Manager GP, LLC; requests for renewal to OMB for review. methodology and assumptions used; (c) Carpenter Fund Management Company, ways to enhance the quality, utility, and LLC; Carpenter Community BancFund, DATES: Comments must be submitted on clarity of the information to be L.P.; Carpenter Community BancFund— or before November 3, 2011. collected; and (d) ways to minimize the A, L.P.; Carpenter Community ADDRESSES: Interested parties are burden of the information collection on BancFund—CA, L.P.; SCJ, Inc.; and invited to submit written comments to respondents, including through the use CCFW, Inc., all in Irvine, California; to the FDIC by any of the following of automated collection techniques or acquire an additional 6 percent, for a methods: other forms of information technology. total of 37.6 percent, of Manhattan • http://www.FDIC.gov/regulations/ All comments will become a matter of Bancorp, and thereby indirectly acquire laws/federal/notices.html. public record. additional voting shares of Bank of

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Manhattan, N.A., both in El Segundo, N 8th Street, Philadelphia, PA 19107 effects will also be analyzed. California. (215) 446–4815, [email protected]. Additionally, GSA will undertake any Board of Governors of the Federal Reserve SUPPLEMENTARY INFORMATION: consultations required by applicable System, September 29, 2011. Background: The purpose of the laws or regulations, including the Robert deV. Frierson, proposed FASTC at Fort Pickett is to National Historic Preservation Act. This notice announces the initiation Deputy Secretary of the Board. consolidate existing dispersed training functions into a single suitable location of the scoping process to identify [FR Doc. 2011–25514 Filed 10–3–11; 8:45 am] community concerns and issues that BILLING CODE 6210–01–P to improve training efficiency and enhance training operations. The should be addressed in the FASTC EIS. proposed FASTC is needed to establish Federal, state, local agency a facility from which DOS Bureau of representatives and interested parties or GENERAL SERVICES persons are encouraged to provide ADMINISTRATION Diplomatic Security may conduct a wide array of law enforcement and comments on the proposed action [Notice–R03–2011–01; Docket 2011–0006; security training to meet the increased during the 30-day scoping period Sequence 18] demand for well trained personnel. October 4, 2011 though November 3, The proposed FASTC is expected to 2011. These comments should clearly Notice of Intent To Prepare an describe specific issues or topics of Environmental Impact Statement for train 8,000–10,000 students per year and include both hard skills training, environmental concern that the the Foreign Affairs Security Training commenter believes GSA should such as driving tracks, firing ranges, Center (FASTC) and To Announce consider. mock urban environmental, and Public Scoping Meetings No decision will be made to explosives ranges; soft skills training, implement any alternative until the AGENCY: U.S. General Services such as classrooms, simulation labs, and NEPA process is completed and a Administration (GSA). a fitness center; and support facilities Record of Decision is signed. ACTION: Notice. such as administrative offices, dormitories, a dining hall, and Dated: September 22, 2011. SUMMARY: Pursuant to the National emergency response facilities. Leonard Purzycki, Environmental Policy Act (NEPA) of During the initial planning process, Director, Facilities Management & Services 1969, as implemented by the Council on GSA conducted a comprehensive site Programs, U.S. GSA, Mid-Atlantic Region. Environmental Quality regulations (40 evaluation process that identified and [FR Doc. 2011–25458 Filed 10–3–11; 8:45 am] Code of Federal Regulations [CFR] parts evaluated 41 candidate sites in the BILLING CODE 6820–AE–P 1500–1508), the GSA announces its vicinity of the Washington, DC area. intent to prepare an Environmental GSA identified land at Fort Pickett and Impact Statement (EIS) to analyze and Pickett Park in Nottoway County, DEPARTMENT OF HEALTH AND assess the environmental impacts of site Virginia, as the only potentially suitable HUMAN SERVICE acquisition and development of the location for the proposed FASTC United States Department of State facility. Office of the Secretary (DOS), Bureau of Diplomatic Security, GSA is focusing the proposed Agency Information Collection the Foreign Affairs Security Training development of the FASTC on two Activities: Proposed Collection; Center (FASTC) at the Virginia Army adjacent available parcels, an Comment Request; Generic Clearance National Guard’s Maneuver Training approximately 750 acre Fort Pickett for the Collection of Qualitative Center at Fort Pickett and Pickett Park Local Reuse Authority (LRA) parcel 9 Feedback on Agency Service Delivery in Nottoway County, Virginia. DOS, owned by Nottoway County, and an United States Army Corps of Engineers, approximately 900 acre Virginia Army AGENCY: Office of the Secretary, Office United States Environmental Protection National Guard parcel referred to as of the National Coordinator for Health Agency and National Guard Bureau are Maneuver Area 21/20. The proposed Information Technology (ONC), HHS. cooperating agencies in this EIS. project would be constructed in phases. ACTION: 30-Day notice of submission of DATES: A public scoping meeting in Possible action alternatives that will information collection approval from open house format will be held on be evaluated in the EIS are alternative the Office of Management and Budget October 18, 2011 from 6:30 p.m. to 8:30 layouts for construction of facilities for and request for comments. p.m. to provide the public with an hard skills training, soft skills training, opportunity to provide comments, ask life support and infrastructure on the SUMMARY: As part of a Federal questions, and discuss concerns LRA parcel 9 and 21/20 parcels at Fort Government-wide effort to streamline regarding the scope of the EIS with GSA Pickett. A ‘‘No Action Alternative’’, in the process to seek feedback from the and DOS representatives. which DOS would continue their public on service delivery, the Office of ADDRESSES: GSA will hold a public training programs as currently the Secretary, Office of the National scoping meeting at the Blackstone conducted without constructing FASTC, Coordinator for Health Information Armory, 1008 Darvills Rd., Blackstone, will also be evaluated. Technology (ONC), HHS has submitted VA 23824 from 6:30 p.m. to 8:30 p.m. Resource areas to be addressed in the a Generic Information Collection Written comments concerning the FASTC EIS will include, but not be Request (Generic ICR): ‘‘Generic scope of the EIS may be mailed to limited to: air quality, noise, land use, Clearance for the Collection of Abigail Low, GSA Project Manager, 20 socioeconomics, traffic, infrastructure Qualitative Feedback on Agency Service N 8th Street, Philadelphia, PA 19107, and community services, natural Delivery’’ to OMB for approval under via e-mail to [email protected]. More resources, biological resources, cultural the Paperwork Reduction Act (PRA) (44 detailed information on the FASTC resources and safety and environmental U.S.C. 3501 et. seq.). program is available at http:// hazards. The analysis will evaluate DATES: Comments must be submitted www.state.gov/recovery/fastc. direct, indirect and cumulative impacts. November 3, 2011. FOR FURTHER INFORMATION CONTACT: Relevant and reasonable measures that ADDRESSES: Written comments may be Abigail Low, GSA Project Manager; 20 could avoid or mitigate environmental submitted to

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[email protected], or call to have, such collections may still be oversight review, and an admission by the Reports Clearance Officer on (202) eligible for submission for other generic the Respondent, ORI found that Dr. 690–5683. Send written comments and mechanisms that are designed to yield Scott Weber, former Assistant Professor, recommendations for the proposed quantitative results. Health and Community Systems, School information collections within 30 days The Agency received 0 comments of Nursing, UP, engaged in research of this notice directly to the OS OMB were received in response to the 60-day misconduct by (1) plagiarizing text and Desk Officer; faxed to OMB at 202–395– notice published in the Federal Register falsifying data from two publications 5806. of December 22, 2010 (75 FR 80542). supported by U.S. Public Health Service FOR FURTHER INFORMATION CONTACT: To Below we provide the Department of (PHS) funding (P30 MH60570; HS5 request additional information, please Health and Human Services, projected SM52671; PHS employee generated contact [email protected], average estimates for the next three article) in two unpublished or call the Reports Clearance Office on years:1 manuscripts, and (2) including (202) 690–6162. Current Actions: New collection of significant portions of that plagiarized information. text in two grant applications to the SUPPLEMENTARY INFORMATION: Type of Review: New Collection. Title: FedStrive Employee Wellness National Institutes of Health (NIH) (1 Affected Public: Individuals and L30 NR010444–01; 1 R03 HD062761– Program Social Media Survey. Households, Businesses and Abstract: The information collection 01). Organizations, State, Local or Tribal ORI found that the Respondent activity will garner qualitative customer Government. engaged in research misconduct by and stakeholder feedback in an efficient, plagiarizing text, falsifying data and timely manner, in accordance with the Average Expected Annual Number of references, and fabricating data from Administration’s commitment to Activities two publications (Mufson, L., Dorta, improving service delivery. By Respondents: 3000. K.P., Wickramaratne, P., Nomura, Y., qualitative feedback we mean Annual Responses: 3000. Olfson, M., Weissman, M.M. ‘‘A information that provides useful Frequency of Response: Once per randomized effectiveness trial of insights on perceptions and opinions, Request. interpersonal psychotherapy for but are not statistical surveys that yield Average Minutes per Response: 5. depressed adolescents.’’ Arch Gen quantitative results that can be Burden Hours: 250 total. Psychiatry 61(6):577–84, 2004 June; generalized to the population of study. An agency may not conduct or hereafter referred to as ‘‘Mufson et al. This feedback will provide insights into sponsor, and a person is not required to 2004;’’ and Cho, M.J., Mos´cicki, E.K., customer or stakeholder perceptions, respond to, a collection of information Narrow, W.E., Rae, D.S., Locke, B.Z., experiences and expectations, provide unless it displays a currently valid Regier, D.A. ‘‘Concordance between two an early warning of issues with service, Office of Management and Budget measures of depression in the Hispanic or focus attention on areas where control number. Health and Nutrition Examination communication, training or changes in Keith Tucker, Survey.’’ Soc Psychiatry Psychiatr operations might improve delivery of Epidemiol. 28(4):156–63, 1993 August; products or services. These collections Office of the Secretary, Paperwork Reduction Act Clearance Officer. hereafter referred to as ‘‘Cho et al., will allow for ongoing, collaborative and 1993’’) supported by PHS in two journal actionable communications between the [FR Doc. 2011–25143 Filed 10–3–11; 8:45 am] BILLING CODE P article submissions. Specifically, ORI Agency and its customers and found that the Respondent plagiarized stakeholders. It will also allow feedback more than 90 percent of the text from to contribute directly to the DEPARTMENT OF HEALTH AND Mufson et al. 2004 in a manuscript improvement of program management. HUMAN SERVICES entitled ‘‘A randomized effectiveness Feedback collected under this generic trial of psychiatric-mental health nurse clearance will provide useful Office of the Secretary practitioner-administered interpersonal information, but it will not yield data psychotherapy for sexual minority that can be generalized to the overall Findings of Research Misconduct adolescents with depression in primary population. This type of generic care clinics’’ and submitted to the AGENCY: Office of the Secretary, HHS. clearance for qualitative information Journal of the American Academy of will not be used for quantitative ACTION: Notice. Nurse Practitioners (JAANP MS). information collections that are SUMMARY: Notice is hereby given that Furthermore, the Respondent designed to yield reliably actionable the Office of Research Integrity (ORI) plagiarized approximately 66 percent of results, such as monitoring trends over has taken final action in the following the text from Cho et al. 1993 in a time or documenting program case: manuscript entitled ‘‘Assessing the performance. Such data uses require Scott Weber, Ed.D., MSN, University diagnostic predictive power of a more rigorous designs that address: the of Pittsburgh: Based on the letters from screening tool for depression: target population to which the Research Integrity Officer at the Concordance between the CES–D and generalizations will be made, the University of Pittsburgh (UP), ORI’s DIS in the Parent Identity Survey’’ and sampling frame, the sample design submitted to the Journal of GLBT Family (including stratification and clustering), 1 The 60-day notice included the following Studies (JGMS MS). the precision requirements or power estimate of the aggregate burden hours for this In both manuscripts, the Respondent calculations that justify the proposed generic clearance federal-wide: falsified and fabricated tables and sample size, the expected response rate, Average Expected Annual Number of Activities: figures by using all or nearly all of the methods for assessing potential non- 25,000. data in tables and graphs from the Average Number of Respondents per Activity: response bias, the protocols for data 200. plagiarized articles while altering collection, and any testing procedures Annual Responses: 5,000,000. numbers and changing text to represent that were or will be undertaken prior Frequency of Response: Once per Request. data as if from another subject fielding the study. Depending on the Average Minutes per Response: 30. population; he also copied most of the degree of influence the results are likely Burden Hours: 2,500,000. original bibliographic references but

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falsified 35% of the copied references DEPARTMENT OF HEALTH AND Vital Statistics of the National Center for from JAANP MS and 25% of the copied HUMAN SERVICES Health Statistics, CDC. The collection of references from JGMS MS, by changing the data is authorized by 42 U.S.C. 242k. volume numbers and/or publication Centers for Disease Control and This submission requests approval to years, apparently to hinder detection of Prevention collect the monthly and annually the plagiarism. The data fabrication [60Day–11–0213] summary statistics for three years. occurred when the Respondent altered The Monthly Vital Statistics Report or added values to Table 2 in each Proposed Data Collections Submitted forms provide counts of monthly manuscript describing the demographic for Public Comment and occurrences of births, deaths, infant characteristics of the study population Recommendations deaths, marriages, and divorces. Similar that was never studied. In compliance with the requirement data have been published since 1937 and are the sole source of these data at ORI also finds that the Respondent of Section 3506(c)(2)(A) of the the National level. The data are used by engaged in research misconduct by Paperwork Reduction Act of 1995 for opportunity for public comment on the Department of Health and Human plagiarizing text from Cho et al. 1993 in Services and by other government, two NIH grant applications (1 L30 proposed data collection projects, the Centers for Disease Control and academic, and private research and NR010444–01 and 1 R03 HD062761–01) commercial organizations in tracking by copying substantial word-for-word Prevention (CDC) will publish periodic summaries of proposed projects. To changes in trends of vital events. portions of the text describing the test request more information on the Respondents for the Monthly Vital instrument to be used in the proposed proposed project or to obtain a copy of Statistics Report Form are registration study without citing the Cho et al. 1993 data collection plans and instruments, officials in each State and Territory, the paper. call the CDC Reports Clearance Officer District of Columbia, and New York Dr. Weber has voluntarily agreed for on 404–639–5960 or send comments to City. In addition, local (county) officials a period of three (3) years, beginning on Daniel Holcomb, CDC Reports Clearance in New Mexico who record marriages September 7, 2011: Officer, 1600 Clifton Road, MS–D74, occurring and divorces and annulments Atlanta, GA 30333 or send an e-mail to granted in each county of New Mexico (1) To exclude himself from any will use this form. This form is also contracting or subcontracting with any [email protected]. Comments are invited on: (a) Whether designed to collect counts of monthly agency of the United States Government the proposed collection of information occurrences of births, deaths, infant and from eligibility or involvement in is necessary for the proper performance deaths, marriages, and divorces nonprocurement programs of the United of the functions of the agency, including immediately following the month of States Government referred to as whether the information shall have occurrence. ‘‘covered transactions’’ pursuant to practical utility; (b) the accuracy of the The Annual Vital Statistics HHS’ Implementation (2 CFR part 376 et agency’s estimate of the burden of the Occurrence Report Form collects final seq.) of OMB Guidelines to Agencies on proposed collection of information; (c) annual counts of marriages and divorces Governmentwide Debarment and ways to enhance the quality, utility, and by month for the United States and for Suspension, 2 CFR part 180 (collectively clarity of the information to be each State. The statistical counts the ‘‘Debarment Regulations’’); and collected; and (d) ways to minimize the requested on this form differ from (2) to exclude himself from serving in burden of the collection of information provisional estimates obtained on the any advisory capacity to PHS including, on respondents, including through the Monthly Vital Statistics Report Form in but not limited to, service on any PHS use of automated collection techniques that they represent complete counts of or other forms of information advisory committee, board, and/or peer marriages, divorces, and annulments technology. Written comments should review committee, or as a consultant. occurring during the months of the prior be received within 60 days of this year. These final counts are usually FOR FURTHER INFORMATION CONTACT: notice. available from State or county officials Director, Division of Investigative Proposed Project about eight months after the end of the Oversight, Office of Research Integrity, data year. The data are widely used by National Vital Statistics Report Forms 1101 Wootton Parkway, Suite 750, government, academic, private research, (OMB No. 0920–0213, Expiration Date Rockville, MD 20852, (240) 453–8800. and commercial organizations in April 30, 2012)—Extension—National tracking changes in trends of family John Dahlberg, Ph.D., Center for Health Statistics (NCHS), formation and dissolution. Respondents Director, Division of Investigative Oversight, Centers for Disease Control and Prevention (CDC). for the Annual Vital Statistics Office of Research Integrity. Occurrence Report Form are registration [FR Doc. 2011–25537 Filed 10–3–11; 8:45 am] Background and Brief Description officials in each State and Territory, the BILLING CODE 4150–31–P The compilation of national vital District of Columbia, and New York statistics dates back to the beginning of City. the 20th century and has been There are no costs to respondents conducted since 1960 by the Division of other than their time.

ESTIMATED ANNUALIZED BURDEN HOURS

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

State, Territory and New Mexico Monthly Vital Statistics Report ...... 91 12 10/60 182 County officials.

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ESTIMATED ANNUALIZED BURDEN HOURS—Continued

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

State, Territory and other officials .... Annual Vital Statistics Occurrence 58 1 30/60 29 Report.

Total ...... 211

Dated: September 28, 2011. unimproved sanitation facilities with performance indicators. Performance Daniel Holcomb, 20% of that population not using any indicators are a way to measure the Reports Clearance Officer, Centers for Disease type of sanitation facility. performance of disaster-related water Control and Prevention. Sustainability of WASH interventions and sanitation programs. [FR Doc. 2011–25621 Filed 10–3–11; 8:45 am] ties in to goal 7 of the Millennium Four indicators will be used in this BILLING CODE 4163–18–P Development Goals developed by the evaluation. To measure the water United Nations Development Program, intervention we will estimate (1) the to ensure environmental sustainability. percent of households with access to an DEPARTMENT OF HEALTH AND Specifically, it is to ‘‘reduce by half the improved water source. The sanitation HUMAN SERVICES proportion of the population without indicator measures (2) the percent of sustainable access to safe drinking water households with access to improved Centers for Disease Control and and basic sanitation’’ by 2015. sanitation. Hygiene education is Prevention In addition to this issue, significant evaluated using two indicators, (3) the percent of households with appropriate [30-Day–11–11AA] natural disasters such as hurricanes and tropical storms have the potential to hand washing behavior and (4) the Agency Forms Undergoing Paperwork completely destroy infrastructure. In percent of the population using hygienic Reduction Act Review 1998, Central America (El Salvador, sanitation facilities. Guatemala, Honduras, and Nicaragua) The sustainability evaluation will first The Centers for Disease Control and was struck by Hurricane Mitch. After conduct a face-to-face interview with Prevention (CDC) publishes a list of the hurricane, the American Red Cross the community leaders and/or members information collection requests under (ARC) responded to the disaster and of the water board from a maximum of review by the Office of Management and provided community- and household- sixteen communities. Budget (OMB) in compliance with the Second, a cross-sectional household level WASH to hundreds of Paperwork Reduction Act (44 U.S.C. survey (n=256) will be administered communities. What began as a disaster Chapter 35). To request a copy of these across all four countries with a response/reconstruction program in requests, call the CDC Reports Clearance randomly selected female head of 1998, has developed into a study of the Officer at (404) 639–5960 or send an e- household. This survey contains long-term sustainability of WASH mail to [email protected]. Send written questions on water use, access and interventions. comments to CDC Desk Officer, Office of availability; sanitation access, use and This research will focus on assessing Management and Budget, Washington, maintenance; and hygiene education- up to 16 communities that were DC or by fax to (202) 395–5806. Written when was the last time it was presented provided WASH interventions by the comments should be received within 30 to the community, what topics were ARC post-Hurricane Mitch. This survey days of this notice. discussed, when was it provided and by will help to evaluate the key factors that whom. The household interview will Proposed Project help communities to maintain their record data using a personal data Central America Water and Sanitation infrastructure. The results will be used assistant (PDA), reviewed each day and Program Sustainability Evaluation and to improve ARC programs as well as to then transferred into one electronic Qualitative Interview—NEW—National help guide other non-governmental database for statistical analysis and Center for Environmental Health agencies on how to best maximize their calculation of the indicators. The survey (NCEH), Centers for Disease Control and investments to ensure long–term will be done with the female head of Prevention (CDC). community health. household and take approximately 30 to This research includes four 45 minutes. Background and Brief Description components which will be done in each Third, a qualitative key informant There is little information available community: (1) A community survey interview with randomly selected on the longevity of infrastructure and with community leaders and/or the female head of household (n=32), will hygiene behavior change after water, local water board; (2) a cross-sectional be conducted to gather study sanitation and hygiene education quantitative household survey and participants thoughts and opinions on (WASH) interventions are provided. qualitative key informant interview; (3) the WASH services provided to them Sustainability of these WASH water sampling and analysis of and their community. This survey will interventions is a crucial factor in community water sources/systems and be administered verbally and responses maintaining the health and well-being stored household water; and (4) an will be tape recorded and should take of a community. infrastructure inspection of the approximately 45 minutes to 1 hour In the Latin American and Caribbean community water system and sanitation complete. region, 20% of the rural population in facilities. United States Agency for Every household surveyed in each 2008 had no access to an improved International Development (USAID) country will include qualitative testing drinking water source. Forty-five indicators were used as the basis for of drinking water that is stored in the percent of this population also has measuring WASH interventions using home (n=288). Total coliforms and E.

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coli will be determined using a standard Lastly, an infrastructure evaluation for survey and activity independent of pre-measured Hach test kit. In addition, each community will be done by CDC input or assistance from community community water sources and water personnel using a checklist. This leaders or study participants. samples within the distribution system evaluation will help to determine the There is no cost to respondents to will be sampled (n=32). A total of 320 strengths and weaknesses of the water participate in the sustainability water samples will be completed. and sanitation systems for each evaluation other than their time. The Additional testing will include community. total estimated annual burden hours are measuring free chlorine in the The infrastructure survey and water community water system if chlorine is sampling activity is not included in the 240. being used (n=16). burden table as CDC will complete this

ESTIMATED ANNUALIZED BURDEN HOURS

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

Community group-men and women ...... Community survey ...... 16 1 1 Female head of household ...... Quantitative household survey 256 1 45/60 Female head of household ...... Key informant interview ...... 32 1 1

Dated: September 28, 2011. which have been promulgated by the Petition Evaluations Update for the Daniel Holcomb, Department of Health and Human December 2011 Advisory Board Reports Clearance Officer, Centers for Disease Services (HHS) as a final rule; advice on Meeting; and Board Correspondence. Control and Prevention. methods of dose reconstruction, which The agenda is subject to change as [FR Doc. 2011–25495 Filed 10–3–11; 8:45 am] have also been promulgated by HHS as priorities dictate. BILLING CODE 4163–18–P a final rule; advice on the scientific validity and quality of dose estimation This meeting is open to the public. In and reconstruction efforts being the event an individual wishes to DEPARTMENT OF HEALTH AND performed for purposes of the provide comments, written comments HUMAN SERVICES compensation program; and advice on must be submitted prior to the meeting. petitions to add classes of workers to the Any written comments received will be Centers for Disease Control and Special Exposure Cohort (SEC). provided at the meeting and should be Prevention In December 2000, the President submitted to the contact person below delegated responsibility for funding, in advance of the meeting. Advisory Board on Radiation and staffing, and operating the Advisory Worker Health (ABRWH or Advisory Contact Person for More Information: Board to HHS, which subsequently Board), National Institute for Theodore M. Katz, M.P.A., Executive delegated this authority to the CDC. Occupational Safety and Health Secretary, NIOSH, CDC, 1600 Clifton NIOSH implements this responsibility (NIOSH) Road, NE., Mailstop E–20, Atlanta, for CDC. The charter was issued on Georgia 30333, Telephone: (513) 533– August 3, 2001, renewed at appropriate In accordance with section 10(a)(2) of 6800, Toll Free 1(800)CDC–INFO, E- intervals, most recently, August 3, 2011, the Federal Advisory Committee Act mail [email protected]. (Pub. L. 92–463), the Centers for Disease and will expire on August 3, 2013. Control and Prevention (CDC), Purpose: This Advisory Board is The Director, Management Analysis announces the following meeting for the charged with (a) Providing advice to the and Services Office, has been delegated aforementioned committee: Secretary, HHS, on the development of the authority to sign Federal Register Time and date: 11 a.m.–3 p.m., guidelines under Executive Order notices pertaining to announcements of October 20, 2011. 13179; (b) providing advice to the meetings and other committee Place: Audio Conference Call via FTS Secretary, HHS, on the scientific management activities, for both the Conferencing. The USA toll-free, dial-in validity and quality of dose Centers for Disease Control and number is 1–866–659–0537 and the pass reconstruction efforts performed for this Prevention, and the Agency for Toxic code is 9933701. program; and (c) upon request by the Substances and Disease Registry. Secretary, HHS, advising the Secretary Status: Open to the public. In the Dated: September 27, 2011. event an individual wishes to provide on whether there is a class of employees comments, written comments must be at any Department of Energy facility Elaine L. Baker, submitted prior to the meeting. who were exposed to radiation but for Director, Management Analysis and Services Background: The Advisory Board was whom it is not feasible to estimate their Office, Centers for Disease Control and established under the Energy Employees radiation dose, and on whether there is Prevention. Occupational Illness Compensation reasonable likelihood that such [FR Doc. 2011–25482 Filed 10–3–11; 8:45 am] Program Act of 2000 to advise the radiation doses may have endangered BILLING CODE 4163–18–P President on a variety of policy and the health of members of this class. technical functions required to Matters To Be Discussed: The agenda implement and effectively manage the for the conference call includes: NIOSH new compensation program. Key SEC Petition Evaluations for Pantex functions of the Advisory Board include Plant (Amarillo, Texas) and Hangar 481 providing advice on the development of (Kirtland Air Force Base); Subcommittee probability of causation guidelines, and Work Group Updates; DCAS SEC

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DEPARTMENT OF HEALTH AND mechanisms for developing these Dated: September 28, 2011. HUMAN SERVICES partnerships. Donald M. Berwick, On August 23, 2011 we posted a Administrator, Centers for Medicare & Centers for Medicare & Medicaid request for applications (RFA) on the Medicaid Services. Services Innovation Center Web site. In addition, [FR Doc. 2011–25531 Filed 9–30–11; 4:15 pm] [CMS–5504–N2] on August 25, 2011 we published a BILLING CODE 4120–01–P notice requesting applications in the Bundled Payments for Care Federal Register [76 FR 53137] to Improvement Initiative participate in the Bundled Payment for DEPARTMENT OF HEALTH AND Care Improvement initiative. This HUMAN SERVICES AGENCY: Centers for Medicare & initiative seeks proposals from health Medicaid Services (CMS), HHS. care providers who wish to align Centers for Medicare & Medicaid ACTION: Notice of extension of incentives between hospitals, Services deadlines. physicians and nonphysician [CMS–7022–N] practitioners in order to better SUMMARY: This notice extends the coordinate care throughout an episode Medicare, Medicaid, and Children’s deadlines for the submission of the of care. RFAs will test episode-based Health Insurance Programs; Meeting of Bundled Payments for Care payment for acute care and associated the Advisory Panel on Outreach and Improvement ‘‘Model 1’’ letters of intent post-acute care, using both retrospective Education (APOE), November 17, 2011 and applications. and prospective bundled payment DATES: Letter of Intent Submission methods. The RFA requests applications AGENCY: Centers for Medicare & Deadline: For Model 1 of this initiative, to test models centered around acute Medicaid Services (CMS), HHS. interested organizations must submit a care; these models will inform the ACTION: Notice of meeting. nonbinding letter of intent by October 6, design of future models, including care SUMMARY: 2011 as described on the CMS improvement for chronic conditions. This notice announces a Innovation Center Web site http:// For more details, see the RFA, which is meeting of the Advisory Panel on www.innovations.cms.gov/areas-of- available on the Innovation Center Web Outreach and Education (APOE) (the focus/patient-care-models/bundled- site at http://www.innovations.cms.gov/ Panel) in accordance with the Federal payments-for-care-improvement.html. areas-of-focus/patient-care-models/ Advisory Committee Act. The Panel Application Submission Deadline: For bundled-payments-for-care- advises and makes recommendations to Model 1 of this initiative, applications improvement.html. the Secretary of Health and Human must be received on or before November Services and the Administrator of the 18, 2011. II. Provisions of the Notice Centers for Medicare & Medicaid ADDRESSES: Letter of Intents and The CMS Innovation Center has Services on opportunities to enhance Applications should be submitted received much interest and a large the effectiveness of consumer education electronically in searchable PDF format number of inquiries about the BPCI strategies concerning Medicare, via encrypted e-mail to the following e- initiative announced on the CMS Web Medicaid, and the Children’s Health mail address by the date specified in the site and in the Federal Register. There Insurance Program (CHIP). This meeting DATES section of this notice: have also been many requests to allow is open to the public. [email protected]. for some additional time to prepare DATES: Meeting Date: Thursday, Applications and appendices will only applications for Model 1 of the BPCI November 17, 2011 from 8:30 a.m. to be accepted via e-mail. initiative. Based on the feedback from 4 p.m., Eastern Standard Time (EST). FOR FURTHER INFORMATION CONTACT: the community of potential applicants Deadline for Meeting Registration, [email protected] for and our continued commitment to work Presentations and Comments: Thursday, questions regarding the application in partnership with our stakeholders, November 3, 2011, 5 p.m., Eastern process of the Bundled Payments for the Innovation Center has modified the Daylight Time (EDT). Care Improvement initiative. deadlines relating to Model 1 of the Deadline for Requesting Special Accommodations: Thursday, November SUPPLEMENTARY INFORMATION: initiative: (1) The letter of intent will be due on or before October 6, 2011; and 3, 2011, 5 p.m., EDT. I. Background (2) the application will be due on or ADDRESSES: Meeting Location: The We are committed to achieving the before November 18, 2011. Embassy Row Hotel, 2015 three-part aim of better health, better We have announced the deadline Massachusetts Avenue, NW., health care, and reduced expenditures extensions via the CMS Web site and via Washington, DC 20036. through continuous improvement for listserv. Therefore we also wanted to Meeting Registration, Presentations, Medicare, Medicaid and Children’s announce the extensions of the and Written Comments: Jennifer Health Insurance Program beneficiaries. deadlines via the Federal Register. Kordonski, Designated Federal Official (DFO), Division of Forum and Beneficiaries can experience improved III. Collection of Information Conference Development, Office of health outcomes and patient experience Requirements when health care providers work in a Communications, Centers for Medicare coordinated and patient-centered Section 1115A(d)(3) of the Act & Medicaid Services, 7500 Security manner. To this end, CMS is interested specifies that the requirements of the Boulevard, Mailstop S1–13–05, in partnering with providers who are Paperwork Reduction Act of 1995 do Baltimore, MD 21244–1850 or contact working to redesign patient care to not apply with respect to the testing and Ms. Kordonski via e-mail at mailto: deliver these aims. Episode payment evaluation of payment and service [email protected]. approaches that reward providers who delivery models, or the expansion of REGISTRATION: The meeting is open to take accountability for the three-part these models. the public, but attendance is limited to aim at the level of individual patient Authority: Section 1115A of the Social the space available. Persons wishing to care for an episode are potential Security Act. attend this meeting must register by

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contacting the DFO at the address listed Medicare, Medicaid and the Children’s President, Healthcare Information and in the ADDRESSES section of this notice Health Insurance Program (CHIP). Management System Society; Julie or by telephone at number listed in the • Enhancing the Federal Bode¨n Schmidt, Associate Vice FOR FURTHER INFORMATION CONTACT government’s effectiveness in informing President, National Association of section of this notice, by the date listed Medicare, Medicaid, and CHIP Community Health Centers; Alan in the DATES section of this notice. consumers, providers and stakeholders Spielman, President & Chief Executive Individuals requiring sign language pursuant to education and outreach Officer, URAC; Winston Wong, Medical interpretation or other special programs of issues regarding these and Director, Community Benefit Director, accommodations should contact the other health coverage programs, Kaiser Permanente and Darlene Yee- DFO at the address listed in the including the appropriate use of public- Melichar, Professor & Coordinator, San ADDRESSES section of this notice by the private partnerships to leverage the Francisco State University. date listed in the DATES section of this resources of the private sector in The agenda for the November 17, notice. educating beneficiaries, providers and 2011 meeting will include the stakeholders. following: FOR FURTHER INFORMATION CONTACT: • Expanding outreach to vulnerable • Recap of the Previous (July 28, Jennifer Kordonski, (410) 786–1840, or and underserved communities, 2011) Meeting on the Internet at http://www.cms.gov/ • _ including racial and ethnic minorities, Listening Session with CMS FACA/04 APOE.asp for additional in the context of Medicare, Medicaid, Leadership information. Press inquiries are handled and CHIP education programs. • Affordable Care Act Initiatives through the CMS Press Office at (202) • Assembling and sharing an • An opportunity for public comment 690–6145. information base of ‘‘best practices’’ for • Next Steps SUPPLEMENTARY INFORMATION: helping consumers evaluate health plan Individuals or organizations that wish options. to make a 5-minute oral presentation on In accordance with section 10(a) of • the Federal Advisory Committee Act Building and leveraging existing an agenda topic should submit a written (FACA), this notice announces a community infrastructures for copy of the oral presentation to the DFO information, counseling and assistance. at the address listed in the ADDRESSES meeting of the Advisory Panel on • Outreach and Education (APOE) (the Drawing the program link between section of this notice by the date listed Panel). Section 9(a)(2) of the Federal outreach and education, promoting in the DATES section of this notice. The Advisory Committee Act authorizes the consumer understanding of health care number of oral presentations may be coverage choices and facilitating Secretary of Health and Human Services limited by the time available. consumer selection/enrollment, which (the Secretary) to establish an advisory Individuals not wishing to make a in turn support the overarching goal of panel if the Secretary determines that presentation may submit written improved access to quality care, the panel is ‘‘in the public interest in comments to the DFO at the address including prevention services, connection with the performance of listed in the ADDRESSES section of this envisioned under health care reform. duties imposed * * * by law.’’ Such notice by the date listed in the DATES The current members of the Panel are: section of this notice. duties are imposed by section 1804 of Samantha Artiga, Principal Policy the Social Security Act (the Act), Authority: Section 222 of the Public Health Analyst, Kaiser Family Foundation; Service Act (42 U.S.C. 217a) and section requiring the Secretary to provide Joseph Baker, President, Medicare informational materials to Medicare 10(a) of Pub. L. 92–463 (5 U.S.C. App. 2, sec. Rights Center; Philip Bergquist, 10(a) and 41 CFR 102–3). beneficiaries about the Medicare Manager, Health Center Operations, program, and section 1851(d) of the Act, (Catalog of Federal Domestic Assistance CHIPRA Outreach & Enrollment Project Program No. 93.733, Medicare—Hospital requiring the Secretary to provide for and Director, Michigan Primary Care ‘‘activities * * * to broadly disseminate Insurance Program; and Program No. 93.774, Association, Marjorie Cadogan, Medicare—Supplementary Medical information to [M]edicare beneficiaries Executive Deputy Commissioner, Insurance Program) * * * on the coverage options provided Department of Social Services; Jonathan Dated: September 28, 2011. under [Medicare Advantage] in order to Dauphine, Senior Vice President, AARP; Donald M. Berwick, promote an active, informed selection Barbara Ferrer, Executive Director, among such options.’’ Boston Public Health Commission; Administrator, Centers for Medicare & Medicaid Services. The Panel is also authorized by Shelby Gonzales, Senior Health section 1114(f) of the Act (42 U.S.C. Outreach Associate, Center on Budget & [FR Doc. 2011–25544 Filed 10–3–11; 8:45 am] 1314(f)) and section 222 of the Public Policy Priorities; Jan Henning, Benefits BILLING CODE 4120–01–P Health Service Act (42 U.S.C. 217a). The Counseling & Special Projects Secretary signed the charter establishing Coordinator, North Central Texas this Panel on January 21, 1999 (64 FR DEPARTMENT OF HEALTH AND Council of Governments’ Area Agency HUMAN SERVICES 7899, February 17, 1999) and approved on Aging; Warren Jones, Executive the renewal of the charter on January 21, Director, Mississippi Institute for Food and Drug Administration 2011 (76 FR 11782, March 3, 2011). Improvement of Geographic Minority Pursuant to the amended charter, the Health; Cathy Kaufmann, Administrator, [Docket No. FDA–2009–N–0247] Panel advises and makes Oregon Health Authority; Sandy Food and Drug Administration recommendations to the Secretary of Markwood, Chief Executive Officer, Health and Human Services and the Transparency Initiative: Draft National Association of Area Agencies Proposals for Public Comment to Administrator of the Centers for on Aging; Miriam Mobley-Smith, Dean, Medicare & Medicaid Services (CMS) Increase Transparency By Promoting Chicago State University, College of Greater Access to the Agency’s concerning optimal strategies for the Pharmacy; Ana Natal-Pereira, Associate following: Compliance and Enforcement Data; Professor of Medicine, University of Availability • Developing and implementing Medicine & Dentistry of New Jersey; education and outreach programs for Megan Padden, Vice President, Sentara AGENCY: Food and Drug Administration, individuals enrolled in, or eligible for, Health Plans; David W. Roberts, Vice- HHS.

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ACTION: Notice of availability; request information easily accessible, comments with the docket number for comments. downloadable, and searchable online. In found in brackets in the heading of this that memorandum, the President document. Received comments may be SUMMARY: As part of the Transparency highlighted the achievements of the seen in the Division of Dockets Initiative, the Food and Drug Environmental Protection Agency (EPA) Management between 9 a.m. and 4 p.m., Administration (FDA) is announcing the and the Department of Labor (DOL) in Monday through Friday. availability of a report entitled ‘‘Food developing Web sites (http://www.epa- Dated: September 27, 2011. and Drug Administration Transparency echo.gov and http://ogesdw.dol.gov, Leslie Kux, Initiative: Draft Proposals for Public respectively) that make their regulatory Comment to Increase Transparency By compliance information more accessible Acting Assistant Commissioner for Policy. Promoting Greater Access to the to the public. [FR Doc. 2011–25354 Filed 10–3–11; 8:45 am] Agency’s Compliance and Enforcement FDA responded to the Presidential BILLING CODE 4160–01–P Data.’’ This report includes eight draft Memorandum on Regulatory proposals to make FDA’s publicly Compliance in a memorandum to the available compliance and enforcement Department of Health and Human DEPARTMENT OF HEALTH AND data more accessible and user-friendly. Services (HHS), on May 6, 2011 (FDA HUMAN SERVICES FDA is seeking public comment on Response). The FDA Response Food and Drug Administration these draft proposals. The Transparency summarized the actions that the Agency Task Force will ultimately recommend already had implemented, as well as [Docket No. FDA–2007–N–0270; formerly specific draft proposals to the those that were underway or proposed, Docket No. 2007N–0357] Commissioner of Food and Drugs (the to make its regulatory compliance and Commissioner) for consideration based enforcement information more Medical Device User Fee and on the comments it receives, the accessible to the public. FDA took those Modernization Act; Notice to Public of feasibility of the draft proposal, relative actions in response to the Presidential Web Site Location of Fiscal Year 2012 priority, and available resources. Memorandum on Transparency and Proposed Guidance Development DATES: Submit either electronic or Open Government, 74 FR 4685 (January AGENCY: Food and Drug Administration, written comments by December 2, 2011. 26, 2009), which the President issued in HHS. January 2009, and as part of FDA’s own ADDRESSES: Submit electronic ACTION: Notice. comments to http://www.regulations. Transparency Initiative, which the gov. Submit written comments to the Commissioner, Dr. Margaret A. SUMMARY: The Food and Drug Division of Dockets Management (HFA– Hamburg, launched in June 2009. Administration (FDA) is announcing the In the FDA response, the Agency also 305), Food and Drug Administration, Web site location where the Agency will committed to examining the manner in 5630 Fishers Lane, rm. 1061, Rockville, post a list of guidance documents the which EPA and DOL disclose MD 20852. All comments should be Center for Devices and Radiological compliance and enforcement identified with the docket number Health (CDRH) is considering for information to determine whether there found in brackets at the heading of this development. In addition, FDA has are additional steps FDA could take to document and the draft proposal(s) that established a docket where stakeholders make comparable information more the comments address. may provide comments and/or draft accessible. Specifically, FDA stated that language for those topics as well as FOR FURTHER INFORMATION CONTACT: Lisa it would: (1) Within 150 days (by M. Dwyer, Office of the Commissioner, suggestions for new or different October 3, 2011), issue proposals for guidances. Food and Drug Administration, 10903 public comment, if it concluded that New Hampshire Ave., Bldg. 32, rm. there were additional opportunities to DATES: Submit either electronic or 4228, Silver Spring, MD 20993, 301– increase the transparency of its written comments at any time. 796–4709, FAX: 301–847–8616, e-mail: compliance and enforcement data and ADDRESSES: Submit electronic [email protected]. (2) within 270 days (January 31, 2012), comments on the draft guidance to SUPPLEMENTARY INFORMATION: determine whether to adopt those http://www.regulations.gov. Submit written comments to the Division of I. Background proposals. After meeting with EPA and DOL to Dockets Management (HFA–305), Food FDA is announcing the availability of discuss their methods for making and Drug Administration, 5630 Fishers a report entitled ‘‘FDA Transparency compliance and enforcement data more Lane, rm. 1061, Rockville, MD 20852. Initiative: Draft Proposals for Public accessible, FDA has determined that FOR FURTHER INFORMATION CONTACT: Comment to Increase Transparency By there are additional steps that it could Philip Desjardins, Center for Devices Promoting Greater Access to the Food take to make its own information more and Radiological Health, Food and Drug and Drug Administration’s Compliance transparent and accessible to the public. Administration, 10903 New Hampshire and Enforcement Data.’’ FDA is This report contains FDA’s draft Ave., Bldg. 66, rm. 5452, Silver Spring, responsible for a broad range of proposals for public comment. MD 20993–0002, 301–796–5678. compliance and enforcement activities. Increasing the transparency of these II. Comments I. Background activities allows the public to better Interested persons may submit to the During negotiations over the understand the Agency’s decisions, and Division of Dockets Management (see reauthorization of the Medical Device it promotes accountability of the Agency ADDRESSES) either electronic or written User Fee and Modernization Act and the regulated industry. comments regarding this document. It is (MDUFMA), FDA agreed, in return for On January 18, 2011, President only necessary to send one set of additional funding from industry, to Obama issued a Presidential comments. It is no longer necessary to meet a variety of quantitative and Memorandum on Regulatory send two copies of mailed comments. qualitative goals intended to help get Compliance, 76 FR 3825 (January 21, Identify the draft proposal(s) which safe and effective medical devices to 2011), requiring Federal Agencies to your comment addresses by the number market more quickly. These make publicly available compliance assigned to the proposal. Identify commitments include annually posting

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a list of guidance documents that CDRH planned guidance development is public input prior to the next Steering is considering for development and included in the annual Agency-wide Committee and Expert Working Group providing stakeholders an opportunity notice issued by FDA under its good meetings in Seville, Spain, scheduled to provide comments and/or draft guidance practices (21 CFR 10.115(f)(5)). on November 5 through 10, 2011, at language for those topics, or suggestions This CDRH list, however, will be which discussion of the topics for new or different guidances. This focused exclusively on device-related underway and the future of ICH will notice announces the Web site location guidances and will be made available on continue. of the list of guidances on which CDRH FDA’s Web site prior to the beginning of Date and Time: The public meeting is intending to work over the next fiscal each FY from 2008 to 2012. To access will be held on October 25, 2011, from year (FY). We note that the Agency is the list of the guidance documents 2 p.m. to 4 p.m. not required to issue every guidance on CDRH is considering for development in Location: The public meeting will be the list, nor is it precluded from issuing FY 2012, visit FDA’s Web site http:// held at the Washington Theater room at guidance documents that are not on the www.fda.gov/MedicalDevices/Device the Hilton Washington DC/Rockville list. The list includes topics that RegulationandGuidance/Overview/ Hotel & Executive Meeting Center, 1750 currently have no guidance associated MedicalDeviceUserFeeand Rockville Pike, Rockville, MD 20852. with them, topics where updated ModernizationActMDUFMA/ Contact Person: All participants must guidance may be helpful, and topics for ucm109196.htm. register with Kimberly Franklin, Office which CDRH has already issued level 1 of the Commissioner, Food and Drug II. Request for Comments drafts that may be finalized following Administration, 10903 New Hampshire review of public comments. We will Interested persons may submit to the Ave., Silver Spring, MD 20993–0002, e- consider stakeholder comments as we Division of Dockets Management (see mail: [email protected], or prioritize our guidance efforts. ADDRESSES) either electronic or written FAX: 301–595–7937. FDA and CDRH priorities are subject comments regarding this document. It is Registration and Requests for Oral to change at any time. Topics on this only necessary to send one set of Presentations: Send registration and past guidance priority lists may be comments. It is no longer necessary to information (including name, title, firm removed or modified based on current send two copies of mailed comments. name, address, telephone, and fax priorities. We also note that CDRH’s Identify comments with the docket number), written material, and requests experience over the years has shown number found in brackets in the to make oral presentations to the contact that there are many reasons CDRH staff heading of this document. Received person (see Contact Person) by October does not complete the entire annual comments may be seen in the Division 21, 2011. agenda of guidances it undertakes. Staff of Dockets Management between 9 a.m. Interested persons may present data, are frequently diverted from guidance and 4 p.m., Monday through Friday. information, or views orally or in development to other activities, writing, on issues pending at the public Dated: September 29, 2011. meeting. Public oral presentations will including review of premarket Nancy K. Stade, submissions or postmarket problems. In be scheduled between approximately Deputy Director for Policy, Center for Devices 3:30 p.m. and 4 p.m. Time allotted for addition, the center is required each and Radiological Health. year to issue a number of guidances that oral presentations may be limited to 10 [FR Doc. 2011–25507 Filed 10–3–11; 8:45 am] it cannot anticipate at the time the minutes. Those desiring to make oral annual list is generated. These may BILLING CODE 4160–01–P presentations should notify the contact involve newly identified public health person (see Contact Person) by October issues as well as special control 21, 2011, and submit a brief statement DEPARTMENT OF HEALTH AND of the general nature of the evidence or guidance documents for de novo HUMAN SERVICES classifications of devices. It will be arguments they wish to present, the helpful, therefore, to receive comments Food and Drug Administration names and addresses, telephone that indicate the relative priority of number, fax, and e-mail of proposed different guidance topics to interested [Docket No. FDA–2011–N–0002] participants, and an indication of the approximate time requested to make stakeholders. Preparation for International Through feedback from stakeholders, their presentation. Conference on Harmonization Steering including draft language for guidance If you need special accommodations Committee and Expert Working Group documents, CDRH expects to be able to due to a disability, please contact Meetings in Seville, Spain; Regional better prioritize and more efficiently Kimberly Franklin (see Contact Person) Public Meeting draft guidances that will be useful to at least 7 days in advance. industry and other stakeholders. This AGENCY: Food and Drug Administration, Transcripts: Please be advised that as will be the fifth annual list CDRH has HHS. soon as a transcript is available, it will be accessible at http:// posted. FDA intends to update the list ACTION: Notice of public meeting. each year. www.regulations.gov. It may be viewed FDA invites interested persons to The Food and Drug Administration at the Division of Dockets Management submit comments on any or all of the (FDA) is announcing a public meeting (HFA–305), Food and Drug guidance documents on the list. FDA entitled ‘‘Preparation for ICH Steering Administration, 5630 Fishers Lane, Rm. has established a docket where Committee and Expert Working Group 1061, Rockville, MD. A transcript will comments about the FY 2012 list, draft Meetings in Seville, Spain’’ to provide also be available in either hardcopy or language for guidance documents on information and receive comments on on CD–ROM, after submission of a those topics, and suggestions for new or the International Conference on Freedom of Information request. Written different guidances may be submitted Harmonization (ICH) as well as the requests are to be sent to Division of (see ADDRESSES). FDA believes this upcoming meetings in Seville, Spain. Freedom of Information (ELEM–1029), docket is an important tool for receiving The topics to be discussed are the topics 12420 Parklawn Dr., Element Bldg., information from interested parties and for discussion at the forthcoming ICH Rockville, MD 20857. for sharing this information with the Steering Committee Meeting. The SUPPLEMENTARY INFORMATION: The ICH public. Similar information about purpose of the meeting is to solicit was established in 1990 as a joint

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regulatory/industry project to improve, Dated: September 28, 2011. Ground Floor, 1200 New Jersey Avenue, through harmonization, the efficiency of Leslie Kux, SE., Washington, DC, between 9 a.m. the process for developing and Acting Assistant Commissioner for Policy. and 5 p.m., Monday through Friday, registering new medicinal products in [FR Doc. 2011–25480 Filed 10–3–11; 8:45 am] except Federal holidays. You may also Europe, Japan, and the United States BILLING CODE 4160–01–P find the docket on the Internet at without compromising the regulatory http://www.regulations.gov. obligations of safety and effectiveness. A copy of the ICR is available through In recent years, many important DEPARTMENT OF HOMELAND the docket on the Internet at http:// initiatives have been undertaken by SECURITY www.regulations.gov. Additionally, regulatory authorities and industry copies are available from: Commandant associations to promote international Coast Guard (CG–611), Attn: Paperwork Reduction harmonization of regulatory Act Manager, U.S. Coast Guard, 2100 [USCG–2011–0914] 2nd Street, SW., Stop 7101, Washington, requirements. FDA has participated in DC 20593–7101. many meetings designed to enhance Information Collection Request to harmonization and is committed to Office of Management and Budget FOR FURTHER INFORMATION CONTACT: Ms. seeking scientifically based harmonized Kenlinishia Tyler, Office of Information AGENCY: Coast Guard, DHS. technical procedures for pharmaceutical Management, telephone 202–475–3652, development. One of the goals of ACTION: Sixty-day notice requesting or fax 202–475–3929, for questions on harmonization is to identify and then comments. these documents. Contact Ms. Renee V. Wright, Program Manager, Docket reduce differences in technical SUMMARY: In compliance with the requirements for medical product Operations, 202–366–9826, for Paperwork Reduction Act of 1995, the questions on the docket. development among regulatory U.S. Coast Guard intends to submit an SUPPLEMENTARY INFORMATION: Agencies. ICH was organized to provide Information Collection Request (ICR) to an opportunity for harmonization the Office of Management and Budget Public Participation and Request for initiatives to be developed with input (OMB), Office of Information and Comments from both regulatory and industry Regulatory Affairs (OIRA), requesting representatives. ICH is concerned with This Notice relies on the authority of approval of revisions to the following the Paperwork Reduction Act of 1995; harmonization among three regions: The collection of information: 1625–0015, European Union, Japan, and the United 44 U.S.C. Chapter 35, as amended. An Bridge Permit Application Guide. Our ICR is an application to OIRA seeking States. The six ICH sponsors are the ICR describes the information we seek European Commission; the European the approval, extension, or renewal of a to collect from the public. Before Coast Guard collection of information Federation of Pharmaceutical Industries submitting this ICR to OIRA, the Coast Associations; the Japanese Ministry of (Collection). The ICR contains Guard is inviting comments as information describing the Collection’s Health, Labor, and Welfare; the Japanese described below. Pharmaceutical Manufactures purpose, the Collection’s likely burden DATES: Comments must reach the Coast Association; the Centers for Drug on the affected public, an explanation of Guard on or before December 5, 2011. Evaluation and Research and Biologics the necessity of the Collection, and Evaluation and Research, FDA; and the ADDRESSES: You may submit comments other important information describing Pharmaceutical Research and identified by Coast Guard docket the Collection. There is one ICR for each Manufacturers of America. The ICH number [USCG–2011–0914] to the Collection. Secretariat, which coordinates the Docket Management Facility (DMF) at The Coast Guard invites comments on preparation of documentation, is the U.S. Department of Transportation whether this ICR should be granted provided by the International (DOT). To avoid duplicate submissions, based on the Collection being necessary Federation of Pharmaceutical please use only one of the following for the proper performance of Manufacturers Associations. The ICH means: Departmental functions. In particular, Steering Committee includes (1) Online: http:// the Coast Guard would appreciate representatives from each of the ICH www.regulations.gov. comments addressing: (1) The practical sponsors and Health Canada, the (2) Mail: DMF (M–30), DOT, West utility of the Collection; (2) the accuracy European Free Trade Area and the Building Ground Floor, Room W12–140, of the estimated burden of the World Health Organization. The ICH 1200 New Jersey Avenue, SE., Collection; (3) ways to enhance the process has achieved significant Washington, DC 20590–0001. quality, utility, and clarity of harmonization of the technical (3) Hand delivery: Same as mail information subject to the Collection; requirements for the approval of address above, between 9 a.m. and 5 and (4) ways to minimize the burden of pharmaceuticals for human use in the p.m., Monday through Friday, except the Collection on respondents, three ICH regions. Federal holidays. The telephone number including the use of automated is 202–366–9329. collection techniques or other forms of The current ICH process and structure (4) Fax: 202–493–2251. To ensure information technology. In response to can be found at the following Web site: your comments are received in a timely your comments, we may revise this ICR http://www.ich.org. (FDA has verified manner, mark the fax, to attention Desk or decide not to seek approval of the Web site addresses in this Officer for the Coast Guard. revisions of the Collection. We will document, but FDA is not responsible The DMF maintains the public docket consider all comments and material for any subsequent changes to the Web for this Notice. Comments and material received during the comment period. sites after this document publishes in received from the public, as well as We encourage you to respond to this the Federal Register.) documents mentioned in this Notice as request by submitting comments and The agenda for the public meeting being available in the docket, will related materials. Comments must will be made available on the Internet become part of the docket and will be contain the OMB Control Number of the at http://www.fda.gov/Drugs/ available for inspection or copying at ICR and the docket number of this NewsEvents/ucm248489.htm. room W12–140 on the West Building request, [USCG–2011–0914], and must

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be received by December 5, 2011. We Privacy Act if the committee completes its business. will post all comments received, Anyone can search the electronic Written material and requests to make without change, to http:// form of comments received in dockets oral presentations should reach us on or www.regulations.gov. They will include by the name of the individual before October 14, 2011. any personal information you provide. submitting the comment (or signing the ADDRESSES: The meeting will be held at We have an agreement with DOT to use comment, if submitted on behalf of an Coast Guard Headquarters, 2100 2nd their DMF. Please see the ‘‘Privacy Act’’ association, business, labor union, etc.). Street Southwest, Washington, District paragraph below. You may review a Privacy Act statement of Columbia 20593, in conference room Submitting Comments regarding Coast Guard public dockets in 51309. All visitors to Coast Guard the January 17, 2008, issue of the Headquarters will have to pre-register to If you submit a comment, please Federal Register (73 FR 3316). be admitted to the building. Please include the docket number [USCG– provide your name, telephone number Information Collection Request 2011–0914], indicate the specific and organization by close of business on section of the document to which each Title: Bridge Permit Application October 14, 2011, to the contact person comment applies, providing a reason for Guide. listed in FOR FURTHER INFORMATION each comment. If you submit a comment OMB Control Number: 1625–0015. CONTACT: below. Additionally, all online via http://www.regulations.gov, it Summary: The collection of visitors to Coast Guard Headquarters will be considered received by the Coast information is a request for a bridge must produce valid photo identification Guard when you successfully transmit permit submitted as an application for for access to the facility. the comment. If you fax, hand deliver, approval by the Coast Guard of any For information on facilities or or mail your comment, it will be proposed bridge project. An applicant services for individuals with disabilities considered as having been received by must submit to the Coast Guard a letter or to request special assistance at the the Coast Guard when it is received at of application along with letter-size meeting, contact the person listed in FOR the DMF. We recommend you include drawings (plans) and maps showing the FURTHER INFORMATION CONTACT: below as your name, mailing address, an e-mail proposed project and its location. soon as possible. address, or other contact information in Need: 33 U.S.C. 401, 491, and 525 To facilitate public participation, we the body of your document so that we authorize the Coast Guard to approve are inviting public comment on the can contact you if we have questions plans and locations for all bridges and issues to be considered by the regarding your submission. causeways that go over navigable waters committee as listed in the ‘‘Agenda’’ of the United States. section below. Comments must be You may submit your comments and Forms: None. submitted in writing no later than material by electronic means, mail, fax, Respondents: Public and private October 14, 2011, and must be or hand delivery to the DMF at the owners of bridges over navigable waters identified by [USCG–2011–XXXX] and address under ADDRESSES; but please of the United States. may be submitted by one of the submit them by only one means. To Frequency: On occasion. following methods: submit your comment online, go to Burden Estimate: The estimated • Federal eRulemaking Portal: http:// http://www.regulations.gov, and type burden is 10,760 hours a year. www.regulations.gov. Follow the ‘‘USCG–2011–0914’’ in the ‘‘Keyword’’ instructions for submitting comments. box. If you submit your comments by Dated: September 29, 2011. • R.E. Day, Fax: 202–493–2251. mail or hand delivery, submit them in • Mail: Docket Management Facility an unbound format, no larger than 81⁄2 Rear Admiral, U.S. Coast Guard, Assistant Commandant for Command, Control, (M–30), U.S. Department of by 11 inches, suitable for copying and Transportation, West Building Ground electronic filing. If you submit Communications, Computers and Information Technology. Floor, Room W12–140, 1200 New Jersey comments by mail and would like to [FR Doc. 2011–25543 Filed 10–3–11; 8:45 am] Avenue, SE., Washington DC 20590– know that they reached the Facility, 0001. BILLING CODE 9110–04–P please enclose a stamped, self-addressed • Hand Delivery: Same as mail postcard or envelope. We will consider address above between 9 a.m. and 5 all comments and material received DEPARTMENT OF HOMELAND p.m., Monday through Friday, except during the comment period and will SECURITY Federal holidays. The telephone number address them accordingly. is 202–366–9329. To avoid duplication, Viewing Comments and Documents Coast Guard please use only one of these four methods. [USCG–2011–0948] To view comments, as well as Instructions: All submissions received documents mentioned in this Notice as Great Lakes Pilotage Advisory must include the words ‘‘Department of being available in the docket, go to Committee Homeland Security’’ and the docket http://www.regulations.gov, click on the number for this action. Comments ‘‘read comments’’ box, which will then AGENCY: Coast Guard, DHS. received will be posted without become highlighted in blue. In the ACTION: Committee Management; Notice alteration at http://www.regulations.gov, ‘‘Keyword’’ box insert ‘‘USCG–2011– of Federal Advisory Committee Meeting. including any personal information 0914’’ and click ‘‘Search.’’ Click the provided. You may review a Privacy Act ‘‘Open Docket Folder’’ in the ‘‘Actions’’ SUMMARY: The Great Lakes Pilotage notice regarding our public dockets in column. You may also visit the DMF in Advisory Committee (GLPAC) will meet the January 17, 2008, issue of the Room W12–140 on the ground floor of on October 18, 2011, in Washington, Federal Register (73 FR 3316). the DOT West Building, 1200 New District of Columbia. The meeting will Docket: For access to the docket to Jersey Avenue, SE., Washington, DC be open to the public. read documents or comments related to 20590, between 9 a.m. and 5 p.m., DATES: GLPAC will meet on Tuesday, this notice, go to http:// Monday through Friday, except Federal October 18, 2011, from 9 a.m. to 4 p.m. www.regulations.gov, and use ‘‘USCG– holidays. Please note the meeting may close early 2011–XXXX’’ as your search term.

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A public comment period will be held Discussion of relocating the Great eRulemaking Portal at http:// during the meeting on October 18, 2011, Lakes Pilotage Division physical office www.regulations.gov, and will include from 10 a.m. to 11 a.m., and speakers from Washington, DC to the Great Lakes any personal information you provide. are requested to limit their comments to region. Therefore, submitting this information 5 minutes. Please note that the public Election of Chairman and Vice- makes it public. You may wish to read comment period may end before the Chairman of the Great Lakes Pilotage the Privacy Act notice that is available time indicated, following the last call Advisory Committee for a 2 year term. via a link in the footer of http:// for comments. Contact the individual Materials relating to these issues www.regulations.gov. listed below to register as a speaker. appears in the docket, http:// Docket: For access to the docket to FOR FURTHER INFORMATION CONTACT: Mr. www.regulations.gov. Use ‘‘USCG– read background documents or David Dean, GLPAC Assistant 2011–XXXX’’ as your search term. comments received, go to the Federal Designated Federal Officer (ADFO), Dated: September 27, 2011. eRulemaking Portal at http:// Commandant (CG–5522), U.S. Coast D. A. Goward, www.regulations.gov. Submitted Guard Headquarters, 2100 Second comments may also be inspected at Director Marine Transportation Systems Street, SW., Stop 7580, Washington, DC Management, U.S. Coast Guard. FEMA, Office of Chief Counsel, Room 20593–7580; telephone 202–372–1533, 835, 500 C Street, SW., Washington, DC [FR Doc. 2011–25464 Filed 10–3–11; 8:45 am] fax 202–372–1909, or e-mail at 20472. BILLING CODE 9110–04–P [email protected]. If you have FOR FURTHER INFORMATION CONTACT: Tom questions on viewing or submitting Smith, National Integration Center, material to the docket, call Renee V. DEPARTMENT OF HOMELAND National Preparedness Directorate, Wright, Program Manager, Docket SECURITY Protection and National Preparedness, Operations, telephone 202–366–9826. 500 C Street, SW., Washington, DC SUPPLEMENTARY INFORMATION: Notice of Federal Emergency Management 20472. Phone: 202–646–3850 or e-mail: this meeting is given under the Federal Agency FEMA–[email protected]. Advisory Committee Act, 5 U.S.C. App. [Docket ID FEMA–2011–0018] SUPPLEMENTARY INFORMATION: The All- (Pub. L. 92–463). GLPAC was Hazard Position Task Books for Type 3 established under the authority of 46 All-Hazard Position Task Books for Incident Management Teams were U.S.C. 9307, as amended, and makes Type 3 Incident Management Teams developed to assist personnel achieve recommendations to the Secretary of qualifications in the All-Hazard ICS Homeland Security and the Coast Guard AGENCY: Federal Emergency positions. The position task books also on matters relating to Great Lakes Management Agency; DHS. provide the documentation necessary pilotage, including review of proposed ACTION: Notice of availability; request for agencies and organizations to Great Lakes pilotage regulations and for comments. evaluate their personnel and certify policies. their personnel as qualified to the GLPAC expects to meet twice per year SUMMARY: The All-Hazard Position Task positions. The position task books but may also meet at other times at the Books for Type 3 Incident Management supplement the qualification call of the Secretary. Further Teams were developed to assist requirements contained in the NIMS Job information about GLPAC is available personnel achieve qualifications in the Titles, which specify any Education, by searching on ‘‘Great Lakes Pilotage All-Hazard Incident Command System Training, Experience, Physical/Medical Advisory Committee’’ at http:// (ICS) positions. The position task books Fitness, Currency, and Licensure/ www.fido.gov/facadatabase/. supplement the qualification Certification for each position. The requirements contained in the National Agenda position task books have been derived Incident Management System (NIMS), from National Wildfire Coordinating The GLPAC will meet to review, Job Titles. discuss and formulate recommendations Group position task books to leverage DATES: Comments must be received by their successful experience in managing on the following issues: November 3, 2011. Discussion of the comprehensive the qualifications of their personnel. bridge hour study of Great Lakes ADDRESSES: You may submit comments, The position task books in this initial pilotage operations. This study will identified by Docket ID FEMA–2011– group contain: include: 0018, by one of the following methods: 1. Incident Commander. 1. Evaluation of current bridge hour Federal eRulemaking Portal: http:// 2. Public Information Officer. definition and standards used in the www.regulations.gov. Follow the 3. Safety Officer. ratemaking process. instructions for submitting comments. 4. Liaison Officer. 2. Replacing the current standard with E-mail: FEMA–[email protected]. 5. Operations Section Chief. a broader, more inclusive, work hour Include Docket ID FEMA–2011–0018 in 6. Planning Section Chief definition and developing new the subject line of the message. 7. Finance/Administration Section standards for use in measuring pilot Fax: 703–483–2999. Chief. work load to more accurately establish Mail/Hand Delivery/Courier: 8. Logistics Section Chief. rates. Legislation, Regulations, & Policy 9. Service Branch Director/Support Status of the 2012 Appendix A Division, Office of Chief Counsel, Branch Director. ratemaking rule, the Notice of Proposed Federal Emergency Management 10. Branch Director (Operations Rulemaking which was published Agency, Room 835, 500 C Street, SW., Section). August 4, 2011 (76 FR 47095; Washington, DC 20472. 11. Division/Group Supervisor. correction, Aug. 16, 2011, 76 FR 50713. Instructions: All submissions received 12. Unit Leader. Status of the audits for the 2013 must include the agency name and 13. Strike Team/Task Force Leader. Appendix A ratemaking rule. docket ID. Regardless of the method 14. Technical Specialist. Status of the Memorandum of used for submitting comments or The All-Hazard Position Task Books Arrangements between the U.S. and material, all submissions will be posted, for Type 3 Incident Management Teams Canada. without change, to the Federal are available for reviewing at http://

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www.regulations.gov under docket ID designated areas. Specifically, you are DEPARTMENT OF HOMELAND FEMA–2011–0018. FEMA is accepting authorized to provide assistance for SECURITY comments during this public comment emergency protective measures (Category B), period and will incorporate them, as limited to direct Federal assistance, under Federal Emergency Management appropriate, to finalize and release the the Public Assistance program. This Agency assistance excludes regular time costs for All-Hazard Position Task Books for [Internal Agency Docket No. FEMA–3333– Type 3 Incident Management Teams. subgrantees’ regular employees. EM; Docket ID FEMA–2011–0001] Consistent with the requirement that Authority: 6 U.S.C. 320. Federal assistance is supplemental, any New Hampshire; Emergency and Dated: September 20, 2011. Federal funds provided under the Stafford Related Determinations W. Craig Fugate, Act for Public Assistance will be limited to Administrator, Federal Emergency 75 percent of the total eligible costs. In order AGENCY: Federal Emergency Management Agency. to provide Federal assistance, you are hereby Management Agency, DHS. [FR Doc. 2011–25578 Filed 10–3–11; 8:45 am] authorized to allocate from funds available ACTION: Notice. BILLING CODE 9111–46–P for these purposes such amounts as you find necessary for Federal emergency assistance SUMMARY: This is a notice of the and administrative expenses. Presidential declaration of an DEPARTMENT OF HOMELAND Further, you are authorized to make emergency for the State of New SECURITY changes to this declaration for the approved Hampshire (FEMA–3333–EM), dated assistance to the extent allowable under the August 27, 2011, and related Federal Emergency Management Stafford Act. determinations. Agency DATES: Effective Date: August 27, 2011. The Federal Emergency Management FOR FURTHER INFORMATION CONTACT: [Internal Agency Docket No. FEMA–3339– Agency (FEMA) hereby gives notice that EM; Docket ID FEMA–2011–0001] Peggy Miller, Office of Response and pursuant to the authority vested in the Recovery, Federal Emergency Pennsylvania; Emergency and Related Administrator, Department of Homeland Management Agency, 500 C Street, SW., Determinations Security, under Executive Order 12148, Washington, DC 20472, (202) 646–3886. as amended, Ed Smith, of FEMA is SUPPLEMENTARY INFORMATION: Notice is AGENCY: Federal Emergency appointed to act as the Federal Management Agency, DHS. hereby given that, in a letter dated Coordinating Officer for this declared August 27, 2011, the President issued an ACTION: Notice. emergency. emergency declaration under the SUMMARY: This is a notice of the The following areas of the authority of the Robert T. Stafford Presidential declaration of an Commonwealth of Pennsylvania have Disaster Relief and Emergency emergency for the Commonwealth of been designated as adversely affected by Assistance Act, 42 U.S.C. 5121–5208 Pennsylvania (FEMA–3339–EM), dated this declared emergency: (the Stafford Act), as follows: August 29, 2011, and related Bucks, Chester, Delaware, Lehigh, Luzerne, I have determined that the emergency determinations. Monroe, Montgomery, Northampton, conditions in certain areas of the State of DATES: Effective Date: August 29, 2011. Philadelphia, Pike, Sullivan, Wayne, and New Hampshire resulting from Hurricane Wyoming Counties for emergency protective Irene beginning on August 26, 2011, and FOR FURTHER INFORMATION CONTACT: continuing, are of sufficient severity and measures (Category B), limited to direct Peggy Miller, Office of Response and magnitude to warrant an emergency Recovery, Federal Emergency Federal assistance, under the Public declaration under the Robert T. Stafford Management Agency, 500 C Street, SW., Assistance program. Disaster Relief and Emergency Assistance Washington, DC 20472, (202) 646–3886. The following Catalog of Federal Domestic Act, 42 U.S.C. 5121 et seq. (‘‘the Stafford SUPPLEMENTARY INFORMATION: Notice is Assistance Numbers (CFDA) are to be used Act’’). Therefore, I declare that such an emergency exists in the State of New hereby given that, in a letter dated for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Hampshire. August 29, 2011, the President issued an You are authorized to provide appropriate emergency declaration under the Brown Fund; 97.032, Crisis Counseling; assistance for required emergency measures, authority of the Robert T. Stafford 97.033, Disaster Legal Services; 97.034, authorized under Title V of the Stafford Act, Disaster Relief and Emergency Disaster Unemployment Assistance (DUA); to save lives and to protect property and Assistance Act, 42 U.S.C. 5121–5208 97.046, Fire Management Assistance Grant; public health and safety, and to lessen or (the Stafford Act), as follows: 97.048, Disaster Housing Assistance to avert the threat of a catastrophe in the Individuals and Households in Presidentially designated areas. Specifically, you are I have determined that the emergency Declared Disaster Areas; 97.049, authorized to provide assistance for conditions in certain areas of the Presidentially Declared Disaster Assistance— emergency protective measures (Category B), Commonwealth of Pennsylvania resulting Disaster Housing Operations for Individuals including direct Federal assistance, under the from Hurricane Irene beginning on August Public Assistance program. This assistance and Households; 97.050, Presidentially 26, 2011, and continuing, are of sufficient excludes regular time costs for subgrantees’ severity and magnitude to warrant an Declared Disaster Assistance to Individuals regular employees. emergency declaration under the Robert T. and Households—Other Needs; 97.036, Consistent with the requirement that Stafford Disaster Relief and Emergency Disaster Grants—Public Assistance Federal assistance is supplemental, any Assistance Act, 42 U.S.C. 5121 et seq. (‘‘the (Presidentially Declared Disasters); 97.039, Federal funds provided under the Stafford Stafford Act’’). Therefore, I declare that such Hazard Mitigation Grant. Act for Public Assistance will be limited to an emergency exists in the Commonwealth of 75 percent of the total eligible costs. In order Pennsylvania. W. Craig Fugate, to provide Federal assistance, you are hereby You are authorized to provide appropriate Administrator, Federal Emergency authorized to allocate from funds available assistance for required emergency measures, Management Agency. for these purposes such amounts as you find authorized under Title V of the Stafford Act, [FR Doc. 2011–25549 Filed 10–3–11; 8:45 am] necessary for Federal emergency assistance to save lives and to protect property and and administrative expenses. public health and safety, and to lessen or BILLING CODE 9111–23–P Further, you are authorized to make avert the threat of a catastrophe in the changes to this declaration for the approved

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assistance to the extent allowable under the Recovery, Federal Emergency Disaster Unemployment Assistance (DUA); Stafford Act. Management Agency, 500 C Street, SW., 97.046, Fire Management Assistance Grant; The Federal Emergency Management Washington, DC 20472, (202) 646–3886. 97.048, Disaster Housing Assistance to Individuals and Households in Presidentially Agency (FEMA) hereby gives notice that SUPPLEMENTARY INFORMATION: Notice is Declared Disaster Areas; 97.049, pursuant to the authority vested in the hereby given that, in a letter dated Presidentially Declared Disaster Assistance— Administrator, Department of Homeland August 27, 2011, the President issued an Disaster Housing Operations for Individuals Security, under Executive Order 12148, emergency declaration under the and Households; 97.050, Presidentially as amended, Craig A. Gilbert, of FEMA authority of the Robert T. Stafford Declared Disaster Assistance to Individuals is appointed to act as the Federal Disaster Relief and Emergency and Households—Other Needs; 97.036, Coordinating Officer for this declared Assistance Act, 42 U.S.C. 5121–5208 Disaster Grants—Public Assistance emergency. (the Stafford Act), as follows: (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.) The following areas of the State of I have determined that the emergency New Hampshire have been designated conditions in certain areas of the State of W. Craig Fugate, as adversely affected by this declared New Jersey resulting from Hurricane Irene emergency: beginning on August 26, 2011, and Administrator, Federal Emergency continuing, are of sufficient severity and Management Agency. Belknap, Carroll, Cheshire, Coos, Grafton, [FR Doc. 2011–25581 Filed 10–3–11; 8:45 am] Hillsborough, Merrimack, Rockingham, magnitude to warrant an emergency declaration under the Robert T. Stafford BILLING CODE 9111–23–P Strafford, and Sullivan Counties for Disaster Relief and Emergency Assistance emergency protective measure (Category B), Act, 42 U.S.C. 5121 et seq. (‘‘the Stafford including direct federal assistance, under the Act’’). Therefore, I declare that such an Public Assistance program. DEPARTMENT OF HOMELAND emergency exists in the State of New Jersey. SECURITY (The following Catalog of Federal Domestic You are authorized to provide appropriate Assistance Numbers (CFDA) are to be used assistance for required emergency measures, for reporting and drawing funds: 97.030, Federal Emergency Management authorized under Title V of the Stafford Act, Agency Community Disaster Loans; 97.031, Cora to save lives and to protect property and Brown Fund; 97.032, Crisis Counseling; public health and safety, and to lessen or [Internal Agency Docket No. FEMA–3331– 97.033, Disaster Legal Services; 97.034, avert the threat of a catastrophe in the EM; Docket ID FEMA–2011–0001] Disaster Unemployment Assistance (DUA); designated areas. Specifically, you are 97.046, Fire Management Assistance Grant; authorized to provide assistance for Connecticut; Emergency and Related 97.048, Disaster Housing Assistance to emergency protective measures (Category B), Determinations Individuals and Households in Presidentially including direct Federal assistance, under the Declared Disaster Areas; 97.049, Public Assistance program. This assistance AGENCY: Federal Emergency Presidentially Declared Disaster Assistance— excludes regular time costs for subgrantees’ Management Agency, DHS. Disaster Housing Operations for Individuals regular employees. ACTION: Notice. and Households; 97.050, Presidentially Consistent with the requirement that Declared Disaster Assistance to Individuals Federal assistance is supplemental, any SUMMARY: This is a notice of the and Households—Other Needs; 97.036, Federal funds provided under the Stafford Presidential declaration of an Disaster Grants—Public Assistance Act for Public Assistance will be limited to (Presidentially Declared Disasters); 97.039, 75 percent of the total eligible costs. In order emergency for the State of Connecticut Hazard Mitigation Grant.) to provide Federal assistance, you are hereby (FEMA–3331–EM), dated August 27, authorized to allocate from funds available 2011, and related determinations. W. Craig Fugate, for these purposes such amounts as you find DATES: Effective Date: August 27, 2011. Administrator, Federal Emergency necessary for Federal emergency assistance FOR FURTHER INFORMATION CONTACT: Management Agency. and administrative expenses. Peggy Miller, Office of Response and [FR Doc. 2011–25553 Filed 10–3–11; 8:45 am] Further, you are authorized to make Recovery, Federal Emergency BILLING CODE 9110–23–P changes to this declaration for the approved assistance to the extent allowable under the Management Agency, 500 C Street, SW., Stafford Act. Washington, DC 20472, (202) 646–3886. DEPARTMENT OF HOMELAND The Federal Emergency Management SUPPLEMENTARY INFORMATION: Notice is SECURITY Agency (FEMA) hereby gives notice that hereby given that, in a letter dated pursuant to the authority vested in the August 27, 2011, the President issued an Federal Emergency Management Administrator, Department of Homeland emergency declaration under the Agency Security, under Executive Order 12148, authority of the Robert T. Stafford Disaster Relief and Emergency [Internal Agency Docket No. FEMA–3332– as amended, William L. Vogel, of FEMA EM; Docket ID FEMA–2011–0001] is appointed to act as the Federal Assistance Act, 42 U.S.C. 5121–5208 Coordinating Officer for this declared (the Stafford Act), as follows: New Jersey; Emergency and Related emergency. I have determined that the emergency Determinations The following areas of the State of conditions in the State of Connecticut New Jersey have been designated as resulting from Hurricane Irene beginning on AGENCY: Federal Emergency adversely affected by this declared August 26, 2011, and continuing, are of Management Agency, DHS. emergency: sufficient severity and magnitude to warrant ACTION: Notice. an emergency declaration under the Robert T. All counties in the State of New Jersey for Stafford Disaster Relief and Emergency SUMMARY: This is a notice of the emergency protective measures (Category B), Assistance Act, 42 U.S.C. 5121 et seq. (‘‘the Presidential declaration of an including direct Federal assistance, under the Stafford Act’’). Therefore, I declare that such emergency for the State of New Jersey Public Assistance program. an emergency exists in the State of (FEMA–3332–EM), dated August 27, (The following Catalog of Federal Domestic Connecticut. 2011, and related determinations. Assistance Numbers (CFDA) are to be used You are authorized to provide appropriate for reporting and drawing funds: 97.030, assistance for required emergency measures, DATES: Effective Date: August 27, 2011. Community Disaster Loans; 97.031, Cora authorized under Title V of the Stafford Act, FOR FURTHER INFORMATION CONTACT: Brown Fund; 97.032, Crisis Counseling; to save lives and to protect property and Peggy Miller, Office of Response and 97.033, Disaster Legal Services; 97.034, public health and safety, and to lessen or

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avert the threat of a catastrophe in the DEPARTMENT OF HOMELAND assistance to the extent allowable under the designated areas. Specifically, you are SECURITY Stafford Act. authorized to provide assistance for The Federal Emergency Management emergency protective measures (Category B), Federal Emergency Management Agency (FEMA) hereby gives notice that including direct Federal assistance, under the Agency pursuant to the authority vested in the Administrator, Department of Homeland Public Assistance program. This assistance [Internal Agency Docket No. FEMA–3330– Security, under Executive Order 12148, as excludes regular time costs for subgrantees’ EM; Docket ID FEMA–2011–0001] amended, James N. Russo, of FEMA is regular employees. appointed to act as the Federal Coordinating Consistent with the requirement that Massachusetts; Emergency and Officer for this declared emergency. Federal assistance is supplemental, any Related Determinations Federal funds provided under the Stafford The following areas of the Act for Public Assistance will be limited to AGENCY: Federal Emergency Commonwealth of Massachusetts have 75 percent of the total eligible costs. In order Management Agency, DHS. been designated as adversely affected by to provide Federal assistance, you are hereby ACTION: Notice. this declared emergency: authorized to allocate from funds available Emergency protective measures (Category for these purposes such amounts as you find SUMMARY: This is a notice of the B), including direct Federal assistance, under necessary for Federal emergency assistance Presidential declaration of an the Public Assistance program for the entire and administrative expenses. emergency for the Commonwealth of Commonwealth of Massachusetts. Further, you are authorized to make Massachusetts (FEMA–3330–EM), dated The following Catalog of Federal Domestic changes to this declaration for the approved August 26, 2011, and related Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, assistance to the extent allowable under the determinations. Community Disaster Loans; 97.031, Cora Stafford Act. DATES: Effective Date: August 26, 2011. Brown Fund; 97.032, Crisis Counseling; FOR FURTHER INFORMATION CONTACT: The Federal Emergency Management 97.033, Disaster Legal Services; 97.034, Peggy Miller, Office of Response and Disaster Unemployment Assistance (DUA); Agency (FEMA) hereby gives notice that Recovery, Federal Emergency 97.046, Fire Management Assistance Grant; pursuant to the authority vested in the Management Agency, 500 C Street, SW., 97.048, Disaster Housing Assistance to Administrator, Department of Homeland Washington, DC 20472, (202) 646–3886. Individuals and Households In Presidentially Security, under Executive Order 12148, Declared Disaster Areas; 97.049, SUPPLEMENTARY INFORMATION: Notice is Presidentially Declared Disaster Assistance— as amended, Gary Stanley, of FEMA is hereby given that, in a letter dated appointed to act as the Federal Disaster Housing Operations for Individuals August 26, 2011, the President issued an and Households; 97.050, Presidentially Coordinating Officer for this declared emergency declaration under the Declared Disaster Assistance to Individuals emergency. authority of the Robert T. Stafford and Households—Other Needs; 97.036, The following areas of the State of Disaster Relief and Emergency Disaster Grants—Public Assistance Connecticut have been designated as Assistance Act, 42 U.S.C. 5121–5208 (Presidentially Declared Disasters); 97.039, adversely affected by this declared (the Stafford Act), as follows: Hazard Mitigation Grant. emergency: I have determined that the emergency W. Craig Fugate, All eight counties in the State of conditions in the Commonwealth of Administrator, Federal Emergency Massachusetts resulting from Hurricane Irene Connecticut for emergency protective Management Agency. beginning on August 26, 2011, and [FR Doc. 2011–25552 Filed 10–3–11; 8:45 am] measures (Category B), including direct continuing, are of sufficient severity and federal assistance, under the Public magnitude to warrant an emergency BILLING CODE 9111–23–P Assistance program. declaration under the Robert T. Stafford The following Catalog of Federal Domestic Disaster Relief and Emergency Assistance Assistance Numbers (CFDA) are to be used Act, 42 U.S.C. 5121 et seq. (‘‘the Stafford DEPARTMENT OF HOMELAND for reporting and drawing funds: 97.030, Act’’). Therefore, I declare that such an SECURITY Community Disaster Loans; 97.031, Cora emergency exists in the Commonwealth of Brown Fund; 97.032, Crisis Counseling; Massachusetts. Federal Emergency Management 97.033, Disaster Legal Services; 97.034, You are authorized to provide appropriate Agency assistance for required emergency measures, Disaster Unemployment Assistance (DUA); authorized under Title V of the Stafford Act, [Internal Agency Docket No. FEMA–4021– 97.046, Fire Management Assistance Grant; to save lives and to protect property and DR; Docket ID FEMA–2011–0001] 97.048, Disaster Housing Assistance to public health and safety, and to lessen or Individuals and Households In Presidentially avert the threat of a catastrophe in the New Jersey; Major Disaster and Declared Disaster Areas; 97.049, designated areas. Specifically, you are Related Determinations Presidentially Declared Disaster Assistance— authorized to provide assistance for Disaster Housing Operations for Individuals emergency protective measures (Category B), AGENCY: Federal Emergency and Households; 97.050, Presidentially including direct Federal assistance, under the Management Agency, DHS. Declared Disaster Assistance to Individuals Public Assistance program. This assistance ACTION: Notice. and Households—Other Needs; 97.036, excludes regular time costs for subgrantees’ regular employees. Disaster Grants—Public Assistance SUMMARY: This is a notice of the Consistent with the requirement that Presidential declaration of a major (Presidentially Declared Disasters); 97.039, Federal assistance is supplemental, any Hazard Mitigation Grant. Federal funds provided under the Stafford disaster for the State of New Jersey Act for Public Assistance will be limited to (FEMA–4021–DR), dated August 31, W. Craig Fugate, 75 percent of the total eligible costs. In order 2011, and related determinations. Administrator, Federal Emergency to provide Federal assistance, you are hereby DATES: Effective Date: August 31, 2011. Management Agency. authorized to allocate from funds available FOR FURTHER INFORMATION CONTACT: [FR Doc. 2011–25560 Filed 10–3–11; 8:45 am] for these purposes such amounts as you find necessary for Federal emergency assistance Peggy Miller, Office of Response and BILLING CODE 9111–23–P and administrative expenses. Recovery, Federal Emergency Further, you are authorized to make Management Agency, 500 C Street, SW., changes to this declaration for the approved Washington, DC 20472, (202) 646–3886.

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SUPPLEMENTARY INFORMATION: Notice is 97.046, Fire Management Assistance Grant; will be limited to 75 percent of the total hereby given that, in a letter dated 97.048, Disaster Housing Assistance to eligible costs in the designated areas. August 31, 2011, the President issued a Individuals and Households in Presidentially The Department of Homeland Security, major disaster declaration under the Declared Disaster Areas; 97.049, Federal Emergency Management Agency Presidentially Declared Disaster Assistance— (FEMA), will coordinate Federal assistance authority of the Robert T. Stafford Disaster Housing Operations for Individuals efforts and designate specific areas eligible Disaster Relief and Emergency and Households; 97.050, Presidentially for such assistance. The Federal Coordinating Assistance Act, 42 U.S.C. 5121 et seq. Declared Disaster Assistance to Individuals (the ‘‘Stafford Act’’), as follows: and Households—Other Needs; 97.036, Officer will be Mr. Craig A. Gilbert of FEMA. He will consult with you and assist in the I have determined that the damage in Disaster Grants—Public Assistance execution of the FEMA-State Agreement for certain areas of the State of New Jersey (Presidentially Declared Disasters); 97.039, resulting from Hurricane Irene beginning on Hazard Mitigation Grant.) disaster assistance governing the expenditure of Federal funds. August 27, 2011, and continuing, is of W. Craig Fugate, sufficient severity and magnitude to warrant a major disaster declaration under the Robert Administrator, Federal Emergency The time period prescribed for the T. Stafford Disaster Relief and Emergency Management Agency. implementation of section 310(a), Assistance Act, 42 U.S.C. 5121 et seq. (the [FR Doc. 2011–25564 Filed 10–3–11; 8:45 am] Priority to Certain Applications for ‘‘Stafford Act’’). Therefore, I declare that such BILLING CODE 9111–23–P Public Facility and Public Housing a major disaster exists in the State of New Assistance, 42 U.S.C. 5153, shall be for Jersey. a period not to exceed six months after In order to provide Federal assistance, you DEPARTMENT OF HOMELAND the date of this declaration. are hereby authorized to allocate from funds SECURITY available for these purposes such amounts as The Federal Emergency Management you find necessary for Federal disaster Federal Emergency Management Agency (FEMA) hereby gives notice that assistance and administrative expenses. Agency pursuant to the authority vested in the You are authorized to provide Individual Administrator, under Executive Order Assistance and Public Assistance in the [Internal Agency Docket No. FEMA–4022– 12148, as amended, Craig A. Gilbert, of designated areas and Hazard Mitigation DR; Docket ID FEMA–2011–0001] throughout the State. Direct Federal FEMA is appointed to act as the Federal assistance is authorized. Consistent with the Vermont; Major Disaster and Related Coordinating Officer for this declared requirement that Federal assistance is Determinations disaster. supplemental, any Federal funds provided The following areas of the State of under the Stafford Act for Public Assistance, AGENCY: Federal Emergency Vermont have been designated as Hazard Mitigation, and Other Needs Management Agency, DHS. Assistance will be limited to 75 percent of adversely affected by this declared ACTION: Notice. the total eligible costs. major disaster: Further, you are authorized to make SUMMARY: This is a notice of the Chittenden, Rutland, Washington, and changes to this declaration for the approved Windsor Counties for Individual Assistance. assistance to the extent allowable under the Presidential declaration of a major Stafford Act. disaster for the State of Vermont Addison, Bennington, Caledonia, (FEMA–4022–DR), dated September 1, Chittenden, Essex, Franklin, Lamoille, The time period prescribed for the 2011, and related determinations. Orange, Orleans, Rutland, Washington, implementation of section 310(a), DATES: Windham, and Windsor Counties for Public Priority to Certain Applications for Effective Date: September 1, 2011. Assistance. Direct federal assistance is Public Facility and Public Housing authorized for Public Assistance. Assistance, 42 U.S.C. 5153, shall be for FOR FURTHER INFORMATION CONTACT: All counties within the State of Vermont a period not to exceed six months after Peggy Miller, Recovery Directorate, are eligible to apply for assistance under the the date of this declaration. Federal Emergency Management Hazard Mitigation Grant Program. The Federal Emergency Management Agency, 500 C Street, SW., Washington, (The following Catalog of Federal Domestic Agency (FEMA) hereby gives notice that DC 20472, (202) 646–3886. Assistance Numbers (CFDA) are to be used pursuant to the authority vested in the SUPPLEMENTARY INFORMATION: Notice is for reporting and drawing funds: 97.030, Administrator, under Executive Order hereby given that, in a letter dated Community Disaster Loans; 97.031, Cora 12148, as amended, William L. Vogel, of September 1, 2011, the President Brown Fund; 97.032, Crisis Counseling; FEMA is appointed to act as the Federal declared a major disaster under the 97.033, Disaster Legal Services; 97.034, Coordinating Officer for this major authority of the Robert T. Stafford Disaster Unemployment Assistance (DUA); disaster. Disaster Relief and Emergency 97.046, Fire Management Assistance Grant; The following areas of the State of Assistance Act, 42 U.S.C. 5121–5207 97.048, Disaster Housing Assistance to New Jersey have been designated as (the Stafford Act), as follows: Individuals and Households in Presidentially adversely affected by this major disaster: I have declared a major disaster under the Declared Disaster Areas; 97.049, Bergen, Essex, Morris, Passaic, and Robert T. Stafford Disaster Relief and Presidentially Declared Disaster Assistance— Somerset Counties for Individual Assistance. Emergency Assistance Act, 42 U.S.C. 5121 et Disaster Housing Operations for Individuals Atlantic, Cape May, Cumberland, and seq. (the ‘‘Stafford Act’’), for the State of and Households; 97.050, Presidentially Salem Counties. Direct federal assistance is Vermont due to damage resulting from Declared Disaster Assistance to Individuals authorized for Public Assistance. Tropical Storm Irene beginning on August and Households—Other Needs; 97.036, All counties within the State of New Jersey 29, 2011, and continuing. I have authorized Disaster Grants—Public Assistance are eligible to apply for assistance under the Federal relief and recovery assistance in the (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant Program. affected area. Hazard Mitigation Grant. (The following Catalog of Federal Domestic Individual Assistance, Public Assistance, Assistance Numbers (CFDA) are to be used and Hazard Mitigation will be provided. W. Craig Fugate, for reporting and drawing funds: 97.030, Consistent with the requirement that Federal Administrator, Federal Emergency Community Disaster Loans; 97.031, Cora assistance is supplemental, any Federal Management Agency. Brown Fund; 97.032, Crisis Counseling; funds provided under the Stafford Act for 97.033, Disaster Legal Services; 97.034, Public Assistance, Hazard Mitigation, and [FR Doc. 2011–25573 Filed 10–3–11; 8:45 am] Disaster Unemployment Assistance (DUA); Other Needs Assistance under Section 408 BILLING CODE 9110–23–P

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DEPARTMENT OF HOMELAND 0021. For access to the docket to read Dated: September 20, 2011. SECURITY background documents or comments W. Craig Fugate, received, go to the Federal eRulemaking Administrator, Federal Emergency Federal Emergency Management Portal at http://www.regulations.gov. Management Agency. Agency Submitted comments may also be [FR Doc. 2011–25575 Filed 10–3–11; 8:45 am] [Docket ID: FEMA–2011–0021] inspected at FEMA, Office of Chief BILLING CODE 9111–46–P Counsel, Room 840, 500 C Street, SW., NIMS Public Works Resources: Typed Washington, DC 20472. Resource Definitions (FEMA 508–7) II. Background DEPARTMENT OF HOUSING AND AGENCY: Federal Emergency URBAN DEVELOPMENT Management Agency, DHS. The National Incident Management System (NIMS) provides a consistent [Docket No. FR–5486–N–22] ACTION: Notice of availability; request nationwide template to enable Federal, for comment. Notice of Proposed Information State, Tribal, and local governments, Collection for Public Comment: Tribal SUMMARY: nongovernmental organizations, and the The Federal Emergency Colleges and University Programs Management Agency (FEMA) is private sector to work together to requesting public comments on the prevent, protect against, respond to, AGENCY: Office of the Assistant NIMS Public Works Resources: Typed recover from, and mitigate the effects of Secretary for Public Development and Resource Definitions (FEMA 508–7). incidents, regardless of cause, size, Research, HUD. DATES: Comments must be received by location, or complexity. The Federal ACTION: Notice. November 3, 2011. Emergency Management Agency SUMMARY: ADDRESSES: Comments must be (FEMA) is requesting public comments The proposed information identified by Docket ID FEMA–2011– on the NIMS Public Works Resources: collection requirement described below 0021 and may be submitted by one of Typed Resource Definitions (FEMA 508– will be submitted to the Office of the following methods: 7). This document supports the Management and Budget (OMB) for Federal eRulemaking Portal: http:// Resource Management Component of review, as required by the Paperwork www.regulations.gov. Follow the NIMS. Emergency management and Reduction Act. The Department is instructions for submitting comments. incident response activities require soliciting public comments on the Please note that this proposed policy is carefully managed resources (personnel, subject proposal. not a rulemaking and the Federal teams, facilities, equipment, and/or DATES: Comment Due Date: December 5, eRulemaking Portal is being utilized supplies) to meet incident needs. 2011. only as a mechanism for receiving Utilization of the standardized resource ADDRESSES: Interested persons are comments. management concepts such as typing, invited to submit comments regarding Mail/Hand Delivery/Courier: Office of inventorying, organizing, and tracking this proposal. Comments should refer to Chief Counsel, Federal Emergency will facilitate the dispatch, deployment, the proposal by name and/or OMB Management Agency, Room 840, 500 C and recovery of resources before, Control Number and should be sent to: Street, SW., Washington, DC 20472. during, and after an incident. Susan Brunson, Office of University FOR FURTHER INFORMATION CONTACT: Resource typing is defined as Partnerships, Department of Housing Mike Forgy, Branch Chief; 999 E Street, categorizing, by capability, the resources and Urban Development, 451 7th Street, NW., Washington, DC 20463; 202–646– requested, deployed, and used in SW., Room 8226, Washington, DC 2840 (phone); [email protected]. incidents. Resource users at all levels 20410–6000. SUPPLEMENTARY INFORMATION: use these standards to identify and SUPPLEMENTARY INFORMATION: The inventory resources. Resource kinds Department of Housing and Urban I. Public Participation may be divided into subcategories (e.g. Development will submit the proposed Instructions: All submissions received Public Works) to define more precisely extension of information collection to must include the agency name and the capabilities needed to meet specific OMB for review, as required by the docket ID. Regardless of the method requirements. Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended). used for submitting comments or FEMA seeks comment on the material, all submissions will be posted, This Notice is soliciting comments proposed policy. Based on the without change, to the Federal from members of the public and affected comments received, FEMA may make eRulemaking Portal at http:// agencies concerning the proposed appropriate revisions to the proposed www.regulations.gov, and will include collection of information to: (1) Evaluate policy. Although FEMA will consider any personal information you provide. whether the proposed collection of any comments received in the drafting Therefore, submitting this information information is necessary for the proper of the final policy, FEMA will not makes it public. You may wish to read performance of the functions of the provide a response to comments the Privacy Act notice, which can be agency, including whether the document. When or if FEMA issues a viewed by clicking on the ‘‘Privacy information will have practical utility; final policy, FEMA will publish a notice Notice’’ link in the footer of http:// (2) evaluate the accuracy of the agency’s of availability in the Federal Register www.regulations.gov. estimate of the burden of the proposed You may submit your comments and and make the final policy available at collection of information; (3) enhance material by the methods specified in the http://www.regulations.gov and it will the quality, utility, and clarity of the be posted to the NIMS Resource Center ADDRESSES section. Please submit your information to be collected; and (4) comments and any supporting material at http://www.fema.gov/nims. The final minimize the burden of the collection of by only one means to avoid the receipt policy will not have the force or effect information on those who are to and review of duplicate submissions. of law. respond; including through the use of Docket: The proposed policy is Authority: 6 U.S.C. 312; Homeland appropriate automated collection available in docket ID FEMA–2011– Security Presidential Directive (HSPD)—5. techniques or other forms of information

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technology, e.g., permitting electronic ensure they meet statutory and program Estimation of the total number of submission of responses. goals and requirements. hours needed to prepare the information This Notice also lists the following Agency Form Numbers: HUD_96010. collection including number of information: respondents, frequency of response, and Members of the Affected Public: Title of Proposal: Tribal College and hours of response: Information pursuant Tribal Colleges and Universities (TCU) Universities Program. to grant award will be submitted once OMB Control Number: 2528–0215. that meet the definition of a TCU Description of the Need for the established in Title III of the 1998 a year. The following chart details the Information and Proposed Use: The Amendments to Higher Education Act respondent burden on an annual and information is being collected to of 1965 (Pub. L. 105–244, approved semi-annual basis: monitor performance of grantees to October 7, 1998).

Number of Total annual Hours per respondents responses response Total hours

Applicants ...... 0 0 0 0 Quarterly Reports ...... 15 60 10 600 Final Reports ...... 5 1 15 75 Recordkeeping ...... 15 1 5 75

Total ...... 59 750

Status of the proposed information FOR FURTHER INFORMATION CONTACT: the cost of the overall project by more collection: Pending OMB approval. Donald J. LaVoy, Deputy Assistant than 25 percent. Section 1605(c) Authority: Pub. L. 105–244. Secretary for Office of Field Operations, provides that if the head of a Federal Office of Public and Indian Housing, department or agency makes a Dated: September 24, 2011. Department of Housing and Urban determination pursuant to section Raphael W. Bostic, Development, 451 7th Street, SW., 1605(b), the head of the department or Assistant Secretary for Policy Development. Room 4112, Washington, DC 20410– agency shall publish a detailed written [FR Doc. 2011–25574 Filed 10–3–11; 8:45 am] 4000, telephone number 202–402–8500 justification in the Federal Register. BILLING CODE 4210–67–P (this is not a toll-free number); or Dominique G. Blom, Deputy Assistant In accordance with section 1605(c) of Secretary for Public Housing the Recovery Act and OMB’s DEPARTMENT OF HOUSING AND Investments, Office of Public Housing implementing guidance published on URBAN DEVELOPMENT Investments, Office of Public and Indian April 23, 2009 (74 FR 18449), this notice advises the public that, on August 19, [Docket No. FR–5374–N–33] Housing, Department of Housing and Urban Development, 451 7th Street, 2011, the following exceptions were Buy American Exceptions Under the SW., Room 4130, Washington, DC granted: American Recovery and Reinvestment 20410–4000, telephone number 202– 1. Cambridge Housing Authority. Act of 2009 402–8500 (this is not a toll-free Upon request of the Cambridge Housing number). Persons with hearing- or Authority, HUD granted an exception to AGENCY: Office of the Assistant speech-impairments may access this Secretary for Public and Indian applicability of the Buy American number through TTY by calling the toll- requirements with respect to work, Housing, HUD. free Federal Information Relay Service ACTION: Notice. using CFRFC grant funds, in connection at 800–877–8339. with the Harry S. Truman Apartments SUMMARY: In accordance with the SUPPLEMENTARY INFORMATION: Section project. The exception was granted by American Recovery and Reinvestment 1605(a) of the Recovery Act provides HUD on the basis that the relevant Act of 2009 (Pub. L. 111–05, approved that none of the funds appropriated or manufactured goods, Venstar February 17, 2009) (Recovery Act), and made available by the Recovery Act may ColorTouch programmable limiting implementing guidance of the Office of be used for a project for the thermostats, are not produced in the Management and Budget (OMB), this construction, alteration, maintenance, or U.S. in sufficient and reasonably notice advises that certain exceptions to repair of a public building or public available quantities or of satisfactory the Buy American requirement of the work unless all of the iron, steel, and quality. Recovery Act have been determined manufactured goods used in the project applicable for work using Capital Fund are produced in the United States. 2. Denver Housing Authority. Upon Recovery Formula and Competition Section 1605(b) provides that the Buy request of the Denver Housing (CFRFC) grant funds. Specifically, American requirement shall not apply Authority, HUD granted an exception to exceptions were granted to the in any case or category in which the applicability of the Buy American Cambridge Housing Authority of head of a Federal department or agency requirements with respect to work, Cambridge, MA for the purchase and finds that: (1) Applying the Buy using CFRFC grant funds, in connection installation of Venstar ColorTouch American requirement would be with its 1099 Osage Apartments project. programmable limiting thermostats for inconsistent with the public interest; (2) The exception was granted by HUD on the Harry S. Truman Apartments iron, steel, and the relevant the basis that the relevant manufactured project, and to the Denver Housing manufactured goods are not produced in goods (refrigerators and microwaves) are Authority for the purchase and the U.S. in sufficient and reasonably not produced in the U.S. in sufficient installation of refrigerators and available quantities or of satisfactory and reasonably available quantities or of microwave ovens for its 1099 Osage quality, or (3) inclusion of iron, steel, satisfactory quality. Apartments project. and manufactured goods will increase

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Dated: September 27, 2011. SUPPLEMENTARY INFORMATION: encourage input in the form of issues, Deborah Hernandez, concerns, ideas, and suggestions for the Introduction General Deputy Assistant Secretary for Public future management of Dungeness and Indian Housing. With this notice, we initiate our Refuge. [FR Doc. 2011–25577 Filed 10–3–11; 8:45 am] process for developing a CCP/EA for We will conduct the environmental BILLING CODE 4210–67–P Dungeness NWR. This notice complies review of this project and develop an with our CCP policy to (1) Advise other EA in accordance with the requirements Federal and State agencies, Tribes, and of the National Environmental Policy DEPARTMENT OF THE INTERIOR the public of our intention to conduct Act of 1969, as amended (NEPA) (42 detailed planning on this refuge and (2) U.S.C. 4321 et seq.); NEPA regulations Fish and Wildlife Service obtain suggestions and information on (40 CFR parts 1500–1508); other the scope of issues to consider in the appropriate Federal laws and [FWS–R1–R–2011–N099; 1265–0000–10137– environmental document and during S3] regulations; and our policies and development of the CCP. procedures for compliance with those Dungeness National Wildlife Refuge, Background laws and regulations. Clallam County, WA; Comprehensive Dungeness Refuge Conservation Plan and Environmental The CCP Process Assessment The National Wildlife Refuge System The refuge was established in 1915 as Administration Act of 1966 (16 U.S.C. a ‘‘refuge, preserve, and breeding AGENCY: Fish and Wildlife Service, 668dd–668ee) (Refuge Administration ground for native birds’’ (Executive Interior. Act), as amended by the National Order 2123). The refuge’s approved ACTION: Notice of intent; request for Wildlife Refuge System Improvement boundary encompasses 773 acres of comments. Act of 1997, requires us to develop a sand spit, tidelands, and upland forest habitat along Washington’s Strait of SUMMARY: We, the U.S. Fish and CCP for each national wildlife refuge. The purpose for developing a CCP is to Juan de Fuca; of this, the Service Wildlife Service (Service), intend to manages 325 acres through perpetual prepare a comprehensive conservation provide refuge managers with a 15-year plan for achieving refuge purposes and easements and owns and manages plan (CCP) and environmental approximately 448 acres. assessment (EA) for Dungeness National contributing toward the mission of the Habitat types found on the refuge Wildlife Refuge (Refuge or NWR) in National Wildlife Refuge System, include beach, bluffs, coastal strand, Clallam County, Washington. We consistent with sound principles of fish eelgrass beds, mudflats, coastal lagoon, provide this notice in compliance with and wildlife management, conservation, salt marsh, natural and constructed our CCP policy to advise other Federal legal mandates, and our policies. In freshwater wetlands, and mixed conifer and State agencies, Tribes, and the addition to outlining broad management forests. At 5.5-miles (8.9 kilometers), public of our intentions and to obtain direction on conserving wildlife and Dungeness Spit is the longest natural suggestions and information on the their habitats, CCPs identify compatible sand spit in the United States. scope of issues to consider in the wildlife-dependent recreational Graveyard Spit, which is attached to planning process. opportunities available to the public, including opportunities for hunting, Dungeness Spit, is designated as a DATES: To ensure consideration, please fishing, wildlife observation and Research Natural Area due to the quality send your written comments by photography, and environmental of its native plant community, which November 3, 2011. We will announce education and interpretation. We will provides an excellent representation of opportunities for public input in local review and update the CCP at least coastal strand. The refuge’s eelgrass news media throughout the CCP every 15 years in accordance with the beds are important over-wintering and process. Refuge Administration Act. staging areas for Brant. Numerous other ADDRESSES: Additional information Each unit of the National Wildlife birds use the refuge during migration concerning the refuge is available on our Refuge System was established for and winter, including dabbling and Web site: http://www.fws.gov/ specific purposes. We use these diving ducks, shorebirds, and bald washingtonmaritime/dungeness/. Send purposes as the foundation for eagles. Dungeness Refuge also provides your comments or requests for more developing and prioritizing the breeding habitat for black information by any of the following management goals and objectives for oystercatchers, pigeon guillemots, and methods: each refuge within the National Wildlife forest birds. Harbor seals use the refuge E-mail: Refuge System (NWRS), and to to pup, haulout, and molt. [email protected]. determine how the public can use each Scoping: Preliminary Issues, Concerns, Include ‘‘Dungeness NWR CCP’’ in the refuge. The planning process is a way and Opportunities subject line of the message. for us and the public to evaluate Fax: Attn: Kevin Ryan, Project Leader, management goals and objectives that We have identified preliminary (360) 457–9778. will ensure the best possible approach issues, concerns, and opportunities that U.S. Mail: Kevin Ryan, Project Leader, to wildlife, plant, and habitat we may address in the CCP. We have Dungeness National Wildlife Refuge, conservation, while providing for briefly summarized these issues below. 715 Holgerson Road, Sequim, WA wildlife-dependent recreation During public scoping, we may identify 98382. opportunities that are compatible with additional issues. In-Person Drop-off: You may drop off each refuge’s establishing purposes and • Should we actively manage the comments during regular business hours the mission of the NWRS. Dawley Unit’s forest to enhance old at the above address. Our CCP process provides growth forest characteristics and/or FOR FURTHER INFORMATION CONTACT: participation opportunities for the marbled murrelet habitat, and if so, Kevin Ryan, Project Leader, phone (360) public; Tribal, State, and local how? 457–8451, or e-mail governments; agencies; and • Should we enhance the refuge’s [email protected]. organizations. At this time we eelgrass beds, and/or mitigate

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anticipated impacts to the eelgrass beds DEPARTMENT OF THE INTERIOR Final Recovery Plan from climate change? The final recovery plan includes Fish and Wildlife Service • How can we reduce marine debris scientific information about the species and derelict fishing gear on and adjacent and provides objectives and actions to the refuge? [FWS–R2–ES–2011–N183; 21450–1113– needed to recover the Bexar County 0000–C2] • How can we reduce the risks of and karst invertebrates and to ultimately remove them from the list of threatened impacts from oil spills and other Final Recovery Plan, Bexar County and endangered species. It also has contaminants on the refuge? Karst Invertebrates • incorporated public and peer review Which invasive species should be comments as applicable. Recovery our highest priorities for monitoring and AGENCY: Fish and Wildlife Service, Interior. actions designed to achieve these control measures? How can we prevent objectives include reducing threats to ACTION: Notice of document availability. the introduction and dispersal of the species by securing an adequate invasive plants and animals? SUMMARY: quantity and quality of habitat. This • We, the Fish and Wildlife How should we address the Service, announce the availability of our includes selecting caves or cave clusters anticipated impacts of climate change final recovery plan, for the nine Bexar that represent the range of the species and sea level rise on the refuge’s County Karst Invertebrates under the and potential genetic diversity for the wildlife and habitat in the CCP and Endangered Species Act of 1973, as nine species, and then preserving these environmental document? amended (Act). These species occur in karst habitats, including their drainage • What research or monitoring Bexar County, Texas. basins and surface communities upon which they rely. Some of the changes studies are needed to improve wildlife ADDRESSES: You may download the from the draft recovery plan include and habitat management? recovery plan from the internet at http: changes in the acreage requirements for • How can we reduce human-caused //www.fws.gov/endangered/species/ medium and high quality preserves as wildlife disturbance impacts on and recovery-plans.html, or you may obtain well as the configuration of the adjacent to the refuge, and improve a copy from Cyndee Watson, U.S. Fish preserves required to meet the recovery compliance with refuge regulations? and Wildlife Service, 10711 Burnet criteria. Because many aspects of the Road, Suite #200, Austin, TX (512–490– • How can we improve the refuge’s population dynamics and habitat 0057 ext. 223). environmental and cultural education requirements of the species are poorly and interpretation programs, FOR FURTHER INFORMATION CONTACT: understood, recovery is also dependant partnerships, and other priority public Adam Zerrenner, at the above address; on incorporating research findings into uses that are compatible with the by phone at 512–490–0057, ext. 249; or adaptive management actions. Because _ refuge’s conservation purposes? How by e-mail at Adam [email protected]. three of these species are known to can we enhance opportunities for SUPPLEMENTARY INFORMATION: occur in only one cave, full recovery people with disabilities to experience may not be possible for these species. refuge resources? Background Authority Public Meetings Recovering endangered or threatened animals and plants to the point where We developed our final recovery plan We will give the public an they are again secure, self-sustaining under the authority of section 4(f) of the opportunity to provide input at a public members of their ecosystems is a Act, 16 U.S.C. 1533(f). We publish this meeting. You can obtain the schedule primary goal of our endangered species notice under section 4(f) Endangered from our Web site or the project leader program and the Act (16 U.S.C. 1531 et Species Act of 1973, as amended (16 (see ADDRESSES). We will also announce seq.). Recovery means improvement of U.S.C. 1531 et seq.). the public meeting through other media the status of listed species to the point Authority: 16 U.S.C. 1531 et seq. outlets. In addition, you may send at which listing is no longer appropriate Dated: September 13, 2011. comments anytime during the planning under the criteria set out in section process by mail, e-mail, or fax (see 4(a)(1) of the Act. The Act requires the Joy E. Nicholopoulos, ADDRESSES). development of recovery plans for listed Acting Regional Director, Southwest Region, species, unless such a plan would not Fish and Wildlife Service. Public Availability of Comments promote the conservation of a particular [FR Doc. 2011–25483 Filed 10–3–11; 8:45 am] Before including your address, phone species. BILLING CODE 4310–55–P number, e-mail address, or other Species’ History personal identifying information in your DEPARTMENT OF THE INTERIOR comment, you should be aware that The following nine Bexar County your entire comment—including your karst invertebrates were listed as Bureau of Land Management personal identifying information—may endangered species on December 26, be made publicly available at any time. 2000 (65 FR 81419): Rhadine exilis, R. [LLNML00000 L13110000.XH0000] infernalis, Batrisodes venyivi, Texella While you can ask us in your comment Notice of Public Meeting, Las Cruces to withhold your personal identifying cokendolpheri, Neoleptoneta microps, Cicurina baronia, C. madla, C. venii, District Resource Advisory Council information from public review, we Meeting, New Mexico cannot guarantee that we will be able to and C. vespera. These invertebrates are do so. troglobites, spending their entire lives AGENCY: Bureau of Land Management, underground. They inhabit caves and Dated: August 16, 2011. Interior. mesocaverns (humanly impassable ACTION: Notice of Public Meeting. Robyn Thorson, voids in karst limestone) in Bexar Regional Director, Region 1, Portland, Oregon. County, Texas. They are characterized SUMMARY: In accordance with the [FR Doc. 2011–25317 Filed 10–3–11; 8:45 am] by small or absent eyes and pale Federal Land Policy and Management BILLING CODE 4310–55–P coloration. Act and the Federal Advisory

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Committee Act of 1972, the U.S. amended, the Bureau of Land Company LLC for competitive oil and Department of the Interior, Bureau of Management (BLM) received a petition gas lease WYW163269 for land in Big Land Management (BLM), Las Cruces for reinstatement from Pogo Producing Horn County, Wyoming. The petition District Resource Advisory Council Company LLC for competitive oil and was filed on time and was accompanied (RAC), will meet as indicated below. gas lease WYW163268 for land in Big by all the rentals due since the date the DATES: The meeting date is October 20, Horn County, Wyoming. The petition lease terminated under the law. 2011, at the BLM Las Cruces District was filed on time and was accompanied FOR FURTHER INFORMATION CONTACT: Office, 1800 Marquess Street, Las by all the rentals due since the date the Bureau of Land Management, Julie L. Cruces, NM 88005, from 9 a.m.–4 p.m. lease terminated under the law. Weaver, Chief, Fluid Minerals The public may send written comments FOR FURTHER INFORMATION CONTACT: Adjudication, at (307) 775–6176. to the RAC at the above address. Bureau of Land Management, Julie L. Persons who use a telecommunications FOR FURTHER INFORMATION CONTACT: Weaver, Chief, Fluid Minerals device for the deaf (TDD) may call the Rena Gutierrez, BLM Las Cruces Adjudication, at (307) 775–6176. Federal Information Relay Service District, 1800 Marquess Street, Las Persons who use a telecommunications (FIRS) at 1–800–877–8339 to contact the Cruces, NM 88005, 575–525–4338. device for the deaf (TDD) may call the above individual during normal Persons who use a telecommunications Federal Information Relay Service business hours. The FIRS is available 24 device for the deaf (TDD) may call the (FIRS) at 1–800–877–8339 to contact the hours a day, 7 days a week, to leave a Federal Information Relay Service above individual during normal message or question with the above (FIRS) at 1–800–877–8229 to contact the business hours. The FIRS is available 24 individual. You will receive a reply above individual during normal hours a day, 7 days a week, to leave a during normal business hours. business hours. The FIRS is available 24 message or question with the above SUPPLEMENTARY INFORMATION: The lessee hours a day, 7 days a week, to leave a individual. You will receive a reply has agreed to the amended lease terms message or question with the above during normal business hours. for rentals and royalties at rates of $10 individual. You will receive a reply SUPPLEMENTARY INFORMATION: The lessee per acre or fraction thereof, per year and during normal business hours. has agreed to the amended lease terms 162⁄3 percent, respectively. The lessee SUPPLEMENTARY INFORMATION: The 10- for rentals and royalties at rates of $10 has paid the required $500 member RAC advises the Secretary of per acre or fraction thereof, per year and administrative fee and $159 to the Interior, through the BLM, on a 162⁄3 percent, respectively. The lessee reimburse the Department for the cost of variety of planning and management has paid the required $500 this Federal Register notice. The lessee issues associated with public land administrative fee and $159 to has met all the requirements for management in New Mexico. Planned reimburse the Department for the cost of reinstatement of the lease as set out in agenda items include a welcome and this Federal Register notice. The lessee Sections 31(d) and (e) of the Mineral introduction of new Council members, has met all the requirements for Lands Leasing Act of 1920 (30 U.S.C. election of officers, overview and reinstatement of the lease as set out in 188), and the BLM is proposing to procedures of resource advisory Sections 31(d) and (e) of the Mineral reinstate lease WYW163269 effective councils, issues and concerns in the Lands Leasing Act of 1920 (30 U.S.C. June 1, 2011, under the original terms BLM Las Cruces District and future 188), and the BLM is proposing to and conditions of the lease and the project work for the RAC. A half-hour reinstate lease WYW163268 effective increased rental and royalty rates cited public comment period during which June 1, 2011, under the original terms above. The BLM has not issued a valid the public may address the Council is and conditions of the lease and the lease to any other interest affecting the scheduled to begin at 2:30 p.m. on increased rental and royalty rates cited lands. above. The BLM has not issued a valid October 20, 2011. All RAC meetings are Julie L. Weaver, open to the public. Depending on the lease to any other interest affecting the Chief, Branch of Fluid Minerals Adjudication. number of individuals wishing to lands. [FR Doc. 2011–25369 Filed 10–3–11; 8:45 am] comment and time available, the time Julie L. Weaver, for individual oral comments may be BILLING CODE 4310–22–P Chief, Branch of Fluid Minerals Adjudication. limited. [FR Doc. 2011–25372 Filed 10–3–11; 8:45 am] Bill Childress, BILLING CODE 4310–22–P DEPARTMENT OF THE INTERIOR District Manager, Las Cruces. [FR Doc. 2011–25496 Filed 10–3–11; 8:45 am] Bureau of Land Management BILLING CODE 4310–VC–P DEPARTMENT OF THE INTERIOR [WY–923–1310–FI; WYW163275]

Bureau of Land Management Notice of Proposed Reinstatement of DEPARTMENT OF THE INTERIOR [WY–923–1310–FI; WYW163269] Terminated Oil and Gas Lease WYW163275, Wyoming Bureau of Land Management Notice of Proposed Reinstatement of AGENCY: Bureau of Land Management, [WY–923–1310–FI; WYW163268] Terminated Oil and Gas Lease WYW163269, Wyoming Interior. Notice of Proposed Reinstatement of ACTION: Notice. AGENCY: Bureau of Land Management, Terminated Oil and Gas Lease SUMMARY: Under the provisions of the WYW163268, Wyoming Interior. ACTION: Notice. Mineral Leasing Act of 1920, as AGENCY: Bureau of Land Management, amended, the Bureau of Land Interior. SUMMARY: Under the provisions of the Management (BLM) received a petition ACTION: Notice. Mineral Leasing Act of 1920, as for reinstatement from Pogo Producing amended, the Bureau of Land Company LLC for competitive oil and SUMMARY: Under the provisions of the Management (BLM) received a petition gas lease WYW163275 for land in Big Mineral Leasing Act of 1920, as for reinstatement from Pogo Producing Horn County, Wyoming. The petition

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was filed on time and was accompanied FOR FURTHER INFORMATION CONTACT: Adjudication, at (307) 775–6176. by all the rentals due since the date the Bureau of Land Management, Julie L. Persons who use a telecommunications lease terminated under the law. Weaver, Chief, Fluid Minerals device for the deaf (TDD) may call the FOR FURTHER INFORMATION CONTACT: Adjudication, at (307) 775–6176. Federal Information Relay Service Bureau of Land Management, Julie L. Persons who use a telecommunications (FIRS) at 1–800–877–8339 to contact the Weaver, Chief, Fluid Minerals device for the deaf (TDD) may call the above individual during normal Adjudication, at (307) 775–6176. Federal Information Relay Service business hours. The FIRS is available 24 Persons who use a telecommunications (FIRS) at 1–800–877–8339 to contact the hours a day, 7 days a week, to leave a device for the deaf (TDD) may call the above individual during normal message or question with the above Federal Information Relay Service business hours. The FIRS is available 24 individual. You will receive a reply (FIRS) at 1–800–877–8339 to contact the hours a day, 7 days a week, to leave a during normal business hours. above individual during normal message or question with the above SUPPLEMENTARY INFORMATION: The lessee business hours. The FIRS is available 24 individual. You will receive a reply has agreed to the amended lease terms hours a day, 7 days a week, to leave a during normal business hours. for rentals and royalties at rates of $10 message or question with the above SUPPLEMENTARY INFORMATION: The lessee per acre or fraction thereof, per year and individual. You will receive a reply has agreed to the amended lease terms 162⁄3 percent, respectively. The lessee during normal business hours. for rentals and royalties at rates of $10 has paid the required $500 SUPPLEMENTARY INFORMATION: The lessee per acre or fraction thereof, per year and administrative fee and $159 to has agreed to the amended lease terms 162⁄3 percent, respectively. The lessee reimburse the Department for the cost of for rentals and royalties at rates of $10 has paid the required $500 this Federal Register notice. The lessee per acre or fraction thereof, per year and administrative fee and $159 to has met all the requirements for 162⁄3 percent, respectively. The lessee reimburse the Department for the cost of reinstatement of the lease as set out in has paid the required $500 this Federal Register notice. The lessee Sections 31(d) and (e) of the Mineral administrative fee and $159 to has met all the requirements for Lands Leasing Act of 1920 (30 U.S.C. reimburse the Department for the cost of reinstatement of the lease as set out in 188), and the BLM is proposing to this Federal Register notice. The lessee Sections 31(d) and (e) of the Mineral reinstate lease WYW163277 effective has met all the requirements for Lands Leasing Act of 1920 (30 U.S.C. June 1, 2011, under the original terms reinstatement of the lease as set out in 188), and the BLM is proposing to and conditions of the lease and the Sections 31(d) and (e) of the Mineral reinstate lease WYW163276 effective increased rental and royalty rates cited Lands Leasing Act of 1920 (30 U.S.C. June 1, 2011, under the original terms above. The BLM has not issued a valid 188), and the BLM is proposing to and conditions of the lease and the lease to any other interest affecting the reinstate lease WYW163275 effective increased rental and royalty rates cited lands. above. The BLM has not issued a valid June 1, 2011, under the original terms Julie L. Weaver, and conditions of the lease and the lease to any other interest affecting the Chief, Branch of Fluid Minerals Adjudication. increased rental and royalty rates cited lands. [FR Doc. 2011–25396 Filed 10–3–11; 8:45 am] above. The BLM has not issued a valid Julie L. Weaver, lease to any other interest affecting the BILLING CODE 4310–22–P Chief, Branch of Fluid Minerals Adjudication. lands. [FR Doc. 2011–25370 Filed 10–3–11; 8:45 am] Julie L. Weaver, BILLING CODE 4310–22–P DEPARTMENT OF THE INTERIOR Chief, Branch of Fluid Minerals Adjudication. Bureau of Land Management [FR Doc. 2011–25376 Filed 10–3–11; 8:45 am] BILLING CODE 4310–22–P DEPARTMENT OF THE INTERIOR [WY–923–1310–FI; WYW163278]

Bureau of Land Management Notice of Proposed Reinstatement of DEPARTMENT OF THE INTERIOR [WY–923–1310–FI; WYW163277] Terminated Oil and Gas Lease WYW163278, Wyoming Bureau of Land Management Notice of Proposed Reinstatement of AGENCY: Bureau of Land Management, [WY–923–1310–FI; WYW163276] Terminated Oil and Gas Lease WYW163277, Wyoming Interior. ACTION: Notice of Proposed Reinstatement of Notice. AGENCY: Bureau of Land Management, Terminated Oil and Gas Lease Interior. SUMMARY: Under the provisions of the WYW163276, Wyoming ACTION: Notice. Mineral Leasing Act of 1920, as AGENCY: Bureau of Land Management, amended, the Bureau of Land Interior. SUMMARY: Under the provisions of the Management (BLM) received a petition Mineral Leasing Act of 1920, as for reinstatement from Pogo Producing ACTION: Notice. amended, the Bureau of Land Company LLC for competitive oil and SUMMARY: Under the provisions of the Management (BLM) received a petition gas lease WYW163278 for land in Big Mineral Leasing Act of 1920, as for reinstatement from Pogo Producing Horn County, Wyoming. The petition amended, the Bureau of Land Company LLC for competitive oil and was filed on time and was accompanied Management (BLM) received a petition gas lease WYW163277 for land in Big by all the rentals due since the date the for reinstatement from Pogo Producing Horn County, Wyoming. The petition lease terminated under the law. Company LLC for competitive oil and was filed on time and was accompanied FOR FURTHER INFORMATION CONTACT: gas lease WYW163276 for land in Big by all the rentals due since the date the Bureau of Land Management, Julie L. Horn County, Wyoming. The petition lease terminated under the law. Weaver, Chief, Fluid Minerals was filed on time and was accompanied FOR FURTHER INFORMATION CONTACT: Adjudication, at (307) 775–6176. by all the rentals due since the date the Bureau of Land Management, Julie L. Persons who use a telecommunications lease terminated under the law. Weaver, Chief, Fluid Minerals device for the deaf (TDD) may call the

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Federal Information Relay Service business hours. The FIRS is available 24 identifying information—may be made (FIRS) at 1–800–877–8339 to contact the hours a day, 7 days a week, to leave a publicly available at any time. While above individual during normal message or question with the above you can ask us in your comment to business hours. The FIRS is available 24 individual. You will receive a reply withhold your personal identifying hours a day, 7 days a week, to leave a during normal business hours. information from public review, we message or question with the above SUPPLEMENTARY INFORMATION: The lessee cannot guarantee that we will be able to individual. You will receive a reply has agreed to the amended lease terms do so. during normal business hours. for rentals and royalties at rates of $10 J. Paul Loether, SUPPLEMENTARY INFORMATION: The lessee per acre or fraction thereof, per year and 2 Chief, National Register of Historic Places, has agreed to the amended lease terms 16 ⁄3 percent, respectively. The lessee National Historic Landmarks Program. for rentals and royalties at rates of $10 has paid the required $500 per acre or fraction thereof, per year and administrative fee and $159 to CONNECTICUT 162⁄3 percent, respectively. The lessee reimburse the Department for the cost of Fairfield County has paid the required $500 this Federal Register notice. The lessee Cassidy House, 891 Ellsworth St., Bridgeport, administrative fee and $159 to has met all the requirements for 11000749 reimburse the Department for the cost of reinstatement of the lease as set out in Long Ridge Village Historic District this Federal Register notice. The lessee Sections 31(d) and (e) of the Mineral (Boundary Increase), 1–130 Mill Rd., 189– has met all the requirements for Lands Leasing Act of 1920 (30 U.S.C. 247 Old Long Ridge Rd., 1257–1306 Rock reinstatement of the lease as set out in 188), and the BLM is proposing to Rimmon Rd., Stamford, 11000750 Sections 31(d) and (e) of the Mineral reinstate lease WYW163280 effective Webb, David Jr. and Sarah, House, 1161 Lands Leasing Act of 1920 (30 U.S.C. June 1, 2011, under the original terms Ponus Ridge, New Canaan, 11000751 188), and the BLM is proposing to and conditions of the lease and the NEW YORK reinstate lease WYW163278 effective increased rental and royalty rates cited June 1, 2011, under the original terms above. The BLM has not issued a valid Monroe County and conditions of the lease and the lease to any other interest affecting the First Baptist Church, 124 Main St., increased rental and royalty rates cited lands. Brockport, 11000752 above. The BLM has not issued a valid Julie L. Weaver Rensselaer County lease to any other interest affecting the Gifford Farmstead, (Farmsteads of Pittstown, lands. Chief, Branch of Fluid Minerals Adjudication. [FR Doc. 2011–25395 Filed 10–3–11; 8:45 am] New York MPS) 276 Gifford Rd., Tomhannock, 11000753 Julie L. Weaver, BILLING CODE 4310–22–P Chief, Branch of Fluid Minerals Adjudication. Steuben County [FR Doc. 2011–25377 Filed 10–3–11; 8:45 am] Cottages at Central Point, 14681–14697 BILLING CODE 4310–22–P DEPARTMENT OF THE INTERIOR Keuka Village Rd., Wayne, 11000754 National Park Service Westchester County West Somers Methodist Episcopal Church DEPARTMENT OF THE INTERIOR [NPS–WASO–NRNHL–0911–8438; 2280– and Cemetery, 199 Tomahawk St., Somers, 665] Bureau of Land Management 11000755 [WY–923–1310–FI; WYW163280] National Register of Historic Places; UTAH Notification of Pending Nominations Davis County Notice of Proposed Reinstatement of and Related Actions Terminated Oil and Gas Lease Farmington Main Street Historic District, Nominations for the following Approx. Main St. from 200 S. to 600 N., WYW163280, Wyoming properties being considered for listing along 600 North St. to Park Ln. and 100 AGENCY: Bureau of Land Management, or related actions in the National North St. from Main St. to 100 W., Interior. Register were received by the National Farmington, 11000756 ACTION: Notice. Park Service before September 10, 2011. Morgan County Pursuant to section 60.13 of 36 CFR Part Morgan Union Pacific Depot, 98 N. SUMMARY: Under the provisions of the 60, written comments are being Commercial St., Morgan, 11000757 Mineral Leasing Act of 1920, as accepted concerning the significance of amended, the Bureau of Land the nominated properties under the WISCONSIN Management (BLM) received a petition National Register criteria for evaluation. Brown County for reinstatement from Pogo Producing Comments may be forwarded by United Steckart and Falck Double Block, 112–118 N. Company LLC for competitive oil and States Postal Service, to the National Broadway, De Pere, 11000758 gas lease WYW163280 for land in Big Register of Historic Places, National [FR Doc. 2011–25467 Filed 10–3–11; 8:45 am] Horn County, Wyoming. The petition Park Service, 1849 C St. NW., MS 2280, BILLING CODE 4312–51–P was filed on time and was accompanied Washington, DC 20240; by all other by all the rentals due since the date the carriers, National Register of Historic lease terminated under the law. Places, National Park Service, 1201 Eye DEPARTMENT OF THE INTERIOR FOR FURTHER INFORMATION CONTACT: St. NW., 8th floor, Washington DC Bureau of Land Management, Julie L. 20005; or by fax, 202–371–6447. Written Bureau of Reclamation Weaver, Chief, Fluid Minerals or faxed comments should be submitted Adjudication, at (307) 775–6176. by October 19, 2011. Before including Colorado River Basin Salinity Control Persons who use a telecommunications your address, phone number, e-mail Advisory Council device for the deaf (TDD) may call the address, or other personal identifying AGENCY: Bureau of Reclamation, Federal Information Relay Service information in your comment, you Interior. (FIRS) at 1–800–877–8339 to contact the should be aware that your entire ACTION: Notice of public meeting. above individual during normal comment—including your personal

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SUMMARY: The Colorado River Basin Protection Agency will each present a 145 N Street, NE., Washington, DC Salinity Control Advisory Council progress report and a schedule of 20530. (Council) was established by the activities on salinity control in the Written comments and suggestions Colorado River Basin Salinity Control Colorado River Basin. The Council will from the public and affected agencies Act of 1974 (Pub. L. 93–320) (Act) to discuss salinity control activities, the concerning the proposed collection of receive reports and advise Federal contents of the reports, and the Basin information are encouraged. Your agencies on implementing the Act. In States Program created by Public Law comments should address one or more accordance with the Federal Advisory 110–246, which amended the Act. of the following four points: Committee Act, the Bureau of —Evaluate whether the proposed Public Disclosure Reclamation announces that the Council collection of information is necessary will meet as detailed below. The Before including a name, address, for the proper performance of the meeting of the Council is open to the telephone number, e-mail address, or functions of the agency, including public. other personal identifying information whether the information will have in the comment, please be advised that DATES: The Council will convene the practical utility; the entire comment—including personal meeting on Tuesday, October 25, 2011, —Evaluate the accuracy of the agency’s identifying information—may be made at 1 p.m. and recess at approximately 5 estimate of the burden of the publicly available at any time. While it p.m. The Council will reconvene the proposed collection of information, can be requested to withhold personal meeting on Wednesday, October 26, including the validity of the identifying information from public 2011, at 8:30 a.m. and adjourn the methodology and assumptions used; review, Reclamation cannot guarantee —Enhance the quality, utility, and meeting at approximately 11:30 a.m. that this will happen. clarity of the information to be ADDRESSES: The meeting will be held in Dated: September 2, 2011. collected; and Santa Fe, New Mexico, in the New —Minimize the burden of the collection Brent Rhees, Mexico State Capitol Building, in room of information on those who are to 309. The Capitol Building is located at Deputy Regional Director, Upper Colorado respond, including through the use of Region. the corner of streets Old Santa Fe Trail appropriate automated, electronic, and Paseo de Peralta. Send written [FR Doc. 2011–25620 Filed 10–3–11; 8:45 am] mechanical, or other technological comments to Mr. Kib Jacobson, Bureau BILLING CODE 4310–MN–P collection techniques or other forms of Reclamation, Upper Colorado of information technology, e.g., Regional Office, 125 South State Street, permitting electronic submission of Room 6107, Salt Lake City, Utah 84138– DEPARTMENT OF JUSTICE responses. 1147; telephone (801) 524–3753; Overview of This Information facsimile (801) 524–3847; e-mail at: [OMB Number 1103–0098] [email protected]. Collection FOR FURTHER INFORMATION CONTACT: Kib Agency Information Collection (1) Type of Information Collection: Jacobson, telephone (801) 524–3753; Activities: Revision of a Previously Revision of a previously approved facsimile (801) 524–3847; e-mail at: Approved Collection, With Change; collection, with change; comments [email protected]. Comments Requested; COPS requested. Application Package (2) Title of the Form/Collection: COPS SUPPLEMENTARY INFORMATION: Any Application Package. member of the public may file written ACTION: 60-Day notice of information (3) Agency form number, if any, and statements with the Council before, collection under review. the applicable component of the during, or up to 30 days after the Department sponsoring the collection: meeting either in person or by mail. To The Department of Justice (DOJ) None. U.S. Department of Justice Office the extent that time permits, the Council Office of Community Oriented Policing of Community Oriented Policing chairman will allow public presentation Services (COPS), will be submitting the Services. of oral comments at the meeting. To following information collection request (4) Affected public who will be asked allow full consideration of information to the Office of Management and Budget or required to respond, as well as a brief by Council members, written notice (OMB) for review and approval in abstract: Law enforcement agencies and must be provided at least 5 days prior accordance with the Paperwork other public and private entities that to the meeting. Any written comments Reduction Act of 1995. The revision of apply for COPS Office grants or received prior to the meeting will be a previously approved information cooperative agreements will be asked to provided to Council members at the collection is published to obtain complete the COPS Application meeting. comments from the public and affected Package. The COPS Application Package The purpose of the meeting is to agencies. includes all of the necessary forms and discuss the accomplishments of Federal The purpose of this notice is to allow instructions that an applicant needs to agencies and make recommendations on for 60 days for public comment until review and complete to apply for COPS future activities to control salinity. December 5, 2011. This process is grant funding. The package is used as a Council members will be briefed on the conducted in accordance with 5 CFR standard template for all COPS status of salinity control activities and 1320.10. programs. receive input for drafting the Council’s If you have comments, especially on (5) An estimate of the total number of annual report. The Bureau of the estimated public burden or respondents and the amount of time Reclamation, Bureau of Land associated response time, suggestions, estimated for an average respondent to Management, U.S. Fish and Wildlife or need a copy of the proposed respond/reply: It is estimated that 4,200 Service, and United States Geological information collection instrument with respondents annually will complete the Survey of the Department of the Interior; instructions or additional information, form within 9.4 hours. the Natural Resources Conservation please contact Ashley Hoornstra, (6) An estimate of the total public Service of the Department of Department of Justice Office of burden (in hours) associated with the Agriculture; and the Environmental Community Oriented Policing Services, collection: There are an estimated 39

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total annual burden hours associated Justice, Washington, DC 20044–7611, or Labor and Human Trafficking (OCFT) with this collection. by faxing or e-mailing a request to Tonia via one of the methods described below If additional information is required Fleetwood ([email protected]), by 5 p.m., December 3, 2011. contact: Jerri Murray, Department fax no. (202) 514–0097, phone To Submit Information, or For Further Clearance Officer, United States confirmation number (202) 514–1547. In Information, Contact: Information Department of Justice, Justice requesting a copy from the Consent submitted to the Department should be Management Division, Policy and Decree Library, please enclose a check submitted directly to OCFT, Bureau of Planning Staff, Two Constitution in the amount of $12.00 (25 cents per International Labor Affairs, U.S. Square, 145 N Street, NE., Room 2E– page reproduction cost) payable to the Department of Labor at (202) 693–4843 508, Washington, DC 20530. United States Treasury or, if by e-mail (this is not a toll free number). Comments, identified as ‘‘Docket No. Jerri Murray, or fax, please forward a check in that DOL–2011–0006,’’ may be submitted by Department Clearance Officer, PRA, U.S. amount to the Consent Decree Library at the stated address. any of the following methods: Department of Justice. • Federal eRulemaking Portal: http:// [FR Doc. 2011–25485 Filed 10–3–11; 8:45 am] Robert E. Maher, Jr., www.regulations.gov. The portal BILLING CODE 4410–AT–P Assistant Section Chief, Environmental includes instructions for submitting Enforcement Section, Environment and comments. Parties submitting responses Natural Resources Division. electronically are encouraged not to DEPARTMENT OF JUSTICE [FR Doc. 2011–25450 Filed 10–3–11; 8:45 am] submit paper copies. • Notice of Lodging of Consent Decree BILLING CODE 4410–15–P Facsimile (fax): OCFT at 202–693– Under the Clean Water Act 4830. • Mail, Express Delivery, Hand Notice is hereby given that on DEPARTMENT OF LABOR Delivery, and Messenger Service (2 September 28, 2011, a proposed Consent copies): Rachel Rigby/Charita Castro at Decree (the ‘‘Consent Decree’’) in United Notice of Initial Determination Revising U.S. Department of Labor, OCFT, States of America v. Trident Seafoods the List of Products Requiring Federal Bureau of International Labor Affairs, Corporation, Civil Action No. 11–1616, Contractor Certification as to Forced/ 200 Constitution Avenue, NW., Room was lodged with the United States Indentured Child Labor Pursuant to S–5317, Washington, DC 20210. District Court for the Western District of Executive Order 13126 • E-mail: [email protected]. Washington. The case is a civil action SUPPLEMENTARY INFORMATION: AGENCY: under Section 309 of the Clean Water Bureau of International Labor Act, 33 U.S.C. 1319 (‘‘CWA’’), for Affairs (ILAB), Department of Labor. I. Information Sought violations of CWA Section 301(a), 33 ACTION: Request for comments. The Department is requesting public U.S.C. 1311(a), and violations of the comment on the revisions to the List SUMMARY: This initial determination permit conditions and limitations of the proposed below, as well as any other National Pollutant Discharge proposes to revise the list required by issue related to the fair and effective Elimination System (‘‘NPDES’’) permits Executive Order No. 13126 implementation of Executive Order (EO) issued to Trident by the EPA under (‘‘Prohibition of Acquisition of Products 13126. This notice is a general Section 402(a) of the CWA, 33 U.S.C. Produced by Forced or Indentured Child solicitation of comments from the 1342(a). To resolve Trident’s liability, Labor’’) in accordance with the public. All submitted comments will be the Consent Decree requires, and Department of Labor’s ‘‘Procedural made a part of the public record and Trident has agreed to pay a civil penalty Guidelines for the Maintenance of the will be available for inspection on of $2.5 million and to perform specified List of Products Requiring Federal http://www.regulations.gov. injunctive measures to reduce its Contractor Certification as to Forced or In conducting research for this initial discharge of seafood processing wastes Indentured Child Labor.’’ Under the determination, the Department and to address sea floor waste piles procurement regulations implementing considered a wide variety of materials created by its discharges. this Executive Order, federal contractors based on its own research or originating For thirty (30) days after the date of who supply products on the list from other U.S. Government agencies, this publication, the Department of published by the Department of Labor foreign governments, international Justice will receive comments relating to must certify that they have made a good organizations, non-governmental the Consent Decree. Comments should faith effort to determine whether forced organizations (NGOs), U.S. Government- be addressed to the Assistant Attorney or indentured child labor was used to funded technical assistance and field General, Environment and Natural produce the items listed. This notice research projects, academic research, Resources Division, and either e-mailed proposes to add 3 new items to the list independent research, media and other to [email protected] or that the Department of Labor sources. The Department of State and mailed to P.O. Box 7611, U.S. preliminarily believes might have been U.S. embassies and consulates abroad Department of Justice, Washington, DC mined, produced or manufactured by also provide important information by 20044–7611. In either case, the forced or indentured child labor. The gathering data from contacts, comments should refer to United States Department of Labor invites public conducting site visits and reviewing of America v. Trident Seafoods comment on this initial determination. local media sources. For this initial Corporation, DJ. Ref. 90–5–1–1–2002/2. The Department will consider all public determination, the Department also During the comment period, the comments prior to publishing a final sought additional information from the Consent Decree may be examined on the determination updating the list of public through a call for information following Department of Justice website: products, made in consultation and published in the Federal Register on http://www.justice.gov/enrd/ cooperation with the Department of April 25, 2011. Consent_Decrees.html. A copy of the State and the Department of Homeland In developing the revised List, the Consent Decree may also be obtained by Security. Department’s review focused on mail from the Consent Decree Library, DATES: Information should be submitted information concerning the use of P.O. Box 7611, U.S. Department of to the Office of Child Labor, Forced forced or indentured child labor that

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was available from the above sources. A criteria for inclusion of a product on the individuals and on the Department’s lack of information does not, by itself, List contained in the Procedural own initiative. When proposing to establish that forced or indentured child Guidelines discussed above. The update the List, the Department of Labor labor is not being used in a particular Department is also interested in public must publish in the Federal Register a country or for a particular product. The comments relating to whether products notice of initial determination, which Department’s ability to gather relevant initially determined to be on the List are includes any proposed alteration to the information is constrained by available designated with appropriate specificity List. The Department will consider all resources and information about and whether alternative designations public comments prior to the working conditions in some countries is would better serve the purposes of EO publication of a final determination of difficult or impossible to obtain, for a 13126. an updated list, which is made in variety of reasons. For example, some The documents and sources providing consultation and cooperation with the governments are unable or unwilling to the preliminary basis for adding these Departments of State and Homeland cooperate with international efforts or goods and countries to the List are Security. with the efforts of NGOs to uncover and available on the Internet at http:// On January 18, 2001, pursuant to address labor exploitation such as www.dol.gov/ILAB/regs/eo13126/ Section 3 of the EO 13126, the Federal forced or indentured child labor. main.htm. Acquisition Regulatory Council Institutions or organizations that might Following receipt and consideration published a final rule to implement uncover such information, such as of comments on the additions to the List specific provisions of EO 13126 that independent news media, trade unions set out above, the Department of Labor, requires, among other things, that and NGOs may not exist or may not be in consultation and cooperation with federal contractors who supply products able to operate freely. the Departments of State Homeland that appear on the List certify to the As outlined in the Procedural Security, will issue a final contracting officer that the contractor, Guidelines, several factors were determination in the Federal Register. or, in the case of an incorporated weighed in determining whether or not The Department of Labor intends to contractor, a responsible official of the a product should be placed on the continue to revise the List periodically contractor, has made a good faith effort revised list: The nature of the to add and/or delete products as to determine whether forced or information describing the use of forced warranted by the receipt of new and indentured child labor was used to or indentured child labor; the source of credible information. mine, produce or manufacture any the information; the date of the II. Background product furnished under the contract and that, on the basis of those efforts, information; the extent of corroboration On June 12, 1999 President Clinton of the information by other sources; the contractor is unaware of any such signed EO 13126, which was published use of child labor. See 48 CFR Subpart whether the information involved more in the Federal Register on June 16, 1999 than an isolated incident; and whether 22.15. (64 FR 32383). EO 13126 declared that On September 11, 2009, the recent and credible efforts are being it was ‘‘the policy of the United States Department of Labor published an made to address forced or indentured Government * * * that the executive initial determination in the Federal child labor in a particular country or agencies shall take appropriate actions Register proposing to update the List to industry. to enforce the laws prohibiting the include 29 products from 21 countries. This notice constitutes the initial manufacture or importation of goods, The Notice requested public comments determination updating the EO 13126 wares, articles, and merchandise mined, for a period of 90 days. Public list issued May 31, 2011. produced or manufactured wholly or in comments were received and reviewed Based on recent, credible and part by forced or indentured child by all relevant agencies and a final appropriately corroborated information labor.’’ Pursuant to EO 13126, and determination was issued on July 20, from various sources, the Departments following public notice and comment, 2010 that included all products of Labor, State, and Homeland Security the Department of Labor published in proposed in the initial determination have preliminarily concluded that there the January 18, 2001 Federal Register a except for carpets from India. Carpets is a reasonable basis to believe that the list of products (the ‘‘List’’), along with from India were excluded from the final following products, identified by their their respective countries of origin, that determination based on public countries of origin, might have been the Department, in consultation and comments that provided sufficient mined, produced, or manufactured by cooperation with the Departments of information on a reduction of forced forced or indentured child labor: State and Treasury (whose relevant child labor in this sector to warrant responsibilities are now within the further consideration before placing Product Country Department of Homeland Security), had carpets on the List. 75 FR 42164. Bricks ...... Afghanistan. a reasonable basis to believe might have On December 16, 2010, The Cassiterite ...... Democratic Republic of the been mined, produced or manufactured Department of Labor published an Congo. with forced or indentured child labor initial determination in the Federal Coltan ...... Democratic Republic of the (66 FR 5353). The Department also Register proposing to update the List to Congo. published the ‘‘Procedural Guidelines add one product to the List and remove for Maintenance of the List of Products one product from the List. The Notice The Department invites public Requiring Federal Contractor requested public comments for a period comment on whether these products Certification as to Forced or Indentured of 60 days. Public comments were (and/or other products, regardless of Child Labor’’ (Procedural Guidelines) on received and reviewed by all relevant whether they are mentioned in this January 18, 2001, which provide agencies, and a final determination was Notice) should be included or removed procedures for the maintenance, review issued on May 31, 2011 that included from the revised List of products and, as appropriate, revision of the List all revisions proposed in the initial requiring federal contractor certification (66 FR 5351). determination. 76 FR 31365. as to the use of forced or indentured The Procedural Guidelines provide The current List and the Procedural child labor. To the extent possible, that the List may be updated through Guidelines can be accessed on the comments provided should address the consideration of submissions by Internet at http://www.dol.gov/ILAB/

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regs/eo13126/main.htm or can be 1 p.m. Discuss initiative, support policies and programs that obtained from: OCFT, Bureau of Competitiveness measures in the advance the prospects of such countries International Labor Affairs, Room S– International Price Program. achieving lasting economic growth and 5317, U.S. Department of Labor, 200 2 p.m. Request for DUAC suggestions poverty reduction. The Act requires the Constitution Avenue, NW., Washington, for improving Data Access/Query Tools Millennium Challenge Corporation DC 20210; telephone: (202) 693–4843; and Output Formats on the BLS Web (‘‘MCC’’) to take a number of steps in fax (202) 693–4830. site. determining what countries will be 3 p.m. Discuss initiative, selected as eligible for MCA compact III. Definitions Consolidating BLS Publications. assistance for fiscal year 2012 (‘‘FY12’’) Under Section 6(c) of EO 13126: 4 p.m. Request for DUAC suggestions based on the countries’ demonstrated ‘‘Forced or indentured child labor’’ for reaching targeted industries with commitment to just and democratic means all work or service— low data collection response rates. governance, economic freedom, and (1) exacted from any person under the 5 p.m. Wrap-up. investing in their people, as well as age of 18 under the menace of any The meeting is open to the public. MCC’s opportunity to reduce poverty penalty for its nonperformance and for Any questions concerning the meeting and generate economic growth in the which the worker does not offer himself should be directed to Kathy Mele, Data country. These steps include the voluntarily; or Users Advisory Committee, on 202– submission of reports to the (2) performed by any person under 691–6102. Individuals who require congressional committees specified in the age of 18 pursuant to a contract the special accommodations should contact the Act and publication of notices in the enforcement of which can be Ms. Mele at least two days prior to the Federal Register that identify: The countries that are ‘‘candidate accomplished by process or penalties. meeting date. countries’’ for MCA assistance for FY12 Signed at Washington, DC, this 19th day of Kimberley D. Hill, based on their per-capita income levels September, 2011. Chief, Division of Management Systems, and their eligibility to receive assistance Carol Pier, Bureau of Labor Statistics. under U.S. law. This report also Associate Deputy Undersecretary, Bureau of [FR Doc. 2011–25402 Filed 10–3–11; 8:45 am] identifies countries that would be International Labor Affairs. BILLING CODE 4510–24–P candidate countries but for specified [FR Doc. 2011–24622 Filed 10–3–11; 8:45 am] legal prohibitions on assistance (section BILLING CODE 4510–28–P 608(a) of the Act; 22 U.S.C. § 7707(a)); MILLENNIUM CHALLENGE The criteria and methodology that CORPORATION MCC’s Board of Directors (‘‘the Board’’) DEPARTMENT OF LABOR will use to measure and evaluate the [MCC FR 11–10] policy performance of the candidate Bureau of Labor Statistics Report on the Criteria and countries consistent with the Data Users Advisory Committee; Methodology for Determining the requirements of section 607 of the Act Notice of Meeting and Agenda Eligibility of Candidate Countries for (22 U.S.C. 7706) in order to determine Millennium Challenge Account ‘‘MCA eligible countries’’ from among The Bureau of Labor Statistics Data Assistance in Fiscal Year 2011 the ‘‘candidate countries’’ (section Users Advisory Committee will meet on 608(b) of the Act); and Tuesday, October 25, 2011. The meeting AGENCY: Millennium Challenge The list of countries determined by will be held in the Postal Square Corporation. the Board to be ‘‘MCA eligible Building, 2 Massachusetts Avenue, NE., ACTION: Notice. countries’’ for FY12, with justification Washington, DC. for eligibility determination and SUMMARY: The Committee provides advice to the This report to Congress is selection for compact negotiation, Bureau of Labor Statistics from the provided in accordance with Section including which of the MCA eligible points of view of data users from 608(b) of the Millennium Challenge Act countries the Board will seek to enter various sectors of the U.S. economy, of 2003, as amended, 22 U.S.C. 7707(b) into MCA compacts (section 608(d) of including the labor, business, research, (the ‘‘Act’’). the Act). academic, and government Dated: September 29, 2011. This report sets out the criteria and communities, on technical matters Melvin F. Williams, Jr., methodology to be applied in determining eligibility for FY12 MCA related to the collection, analysis, VP/General Counsel and Corporate Secretary, dissemination, and use of the Bureau’s Millennium Challenge Corporation. assistance. statistics, on its published reports, and Report on the Criteria and Methodology Criteria and Methodology for FY12 on the broader aspects of its overall for Determining the Eligibility of The Board will base its selection of mission and function. Candidate Countries for Millennium eligible countries on several factors The meeting will be held in Meeting Challenge Account Assistance in Fiscal including the country’s overall Rooms 1, 2, and 3 of the Postal Square Year 2012 performance in three broad policy Building Conference Center. The categories—Ruling Justly, Encouraging Summary schedule and agenda for the meeting are Economic Freedom, and Investing in as follows: This report to Congress is provided in People; MCC’s opportunity to reduce 8:30 a.m. Registration. accordance with section 608(b) of the poverty and generate economic growth 8:45 a.m. Introductions and Welcome. Millennium Challenge Act of 2003, as in a country; and the availability of 9 a.m. Commissioner’s Introduction. amended, 22 U.S.C. 7707(b) (the ‘‘Act’’). funds to MCC. 9:45 a.m. Follow-up from Past The Act authorizes the provision of Section 607 of the Act requires that Recommendations. Millennium Challenge Account the Board’s determination of eligibility 10:45 a.m. Discuss initiative, Current (‘‘MCA’’) assistance to countries that be based ‘‘to the maximum extent Employment Statistics data by size enter into a Millennium Challenge possible, upon objective and class. Compact with the United States to quantifiable indicators of a country’s

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demonstrated commitment’’ to the above the median 1 in relation to its changes to the revised indicators criteria set out in the Act. peers on at least half of the indicators include one substitution in Ruling For FY12, there will be two groups of in each of the three policy categories Justly; two additions in Economic candidate countries—low income and above the median on the Control of Freedom; and three substitutions/ countries (‘‘LIC’’) and lower-middle Corruption indicator. The Board may additions in Investing in People. income countries (‘‘LMIC’’). As outlined exercise discretion in evaluating and Specific definitions of the indicators in the Report on Countries that are translating the indicators into a final list and their sources are set out in the Candidates for Millennium Challenge of eligible countries and, in this respect, attached Annex A. the Board may also consider whether Account Eligibility for Fiscal Year 2012 Status Quo any adjustments should be made for and Countries that would be Candidates data gaps, lags, trends or other Civil Liberties but for Legal Prohibitions (August weaknesses in particular indicators. Political Rights 2011), LIC candidates refer to those Where necessary, the Board may also Voice and Accountability countries that have a per capita income take into account other data and Government Effectiveness equal to or less than $1,915 and are not quantitative and qualitative information Rule of Law ineligible to receive United States to determine whether a country Control of Corruption economic assistance under part I of the performed satisfactorily in relation to its Inflation Foreign Assistance Act of 1961 by peers in a given category Fiscal Policy reason of the application of any (‘‘supplemental information’’). Through Business Start-Up provision of the Foreign Assistance Act this report, the Board publically affirms Trade Policy or any other provision of law. LMIC that it remains strongly committed to Regulatory Quality candidates are those countries that have identifying countries for MCC eligibility Land Rights and Access a per capita income between $1,916 and that have demonstrated sound policies Public Expenditure on Health $3,975 and are not ineligible to receive in each of the three policy categories. Public Expenditure on Primary United States economic assistance For FY12, MCC will implement a Education under the same stipulations. number of changes that modify the Immunization Rates Girls’ Primary Education Completion Changes to the Criteria and overall evaluation of candidate country performance. While improvements to Natural Resource Management Methodology for FY12 the selection criteria and methodology Revised MCC reviews all of its indicators are critical, MCC is also mindful of the Civil Liberties annually to ensure the best measures are need to provide countries with a fairly Political Rights being used and, from time to time, stable set of policy criteria to meet, if Freedom of Information recommends changes or refinements if MCC is to create significant incentives for reform. Therefore, for this year of Government Effectiveness MCC identifies better indicators or Rule of Law improved sources of data. MCC takes transition, the Board of Directions will consider countries’ performance based Control of Corruption into account public comments received Inflation on the previous year’s criteria and on two sets of criteria and methodologies in FY12: the status quo Fiscal Policy methodology and consults with a broad Business Start-Up range of experts in the development set of indicators and decisions rules, and a revised set. Both of these are Trade Policy community and within the U.S. Regulatory Quality Government. In assessing new outlined below. By encouraging the Board to consider how countries would Land Rights and Access indicators, MCC favors those that: (1) Access to Credit Are developed by an independent third have performed under the previous system, as well as how countries Gender in the Economy party; (2) utilize objective and high perform under the new system, MCC Public Expenditure on Health quality data that rely upon an Public Expenditure on Primary will provide a transition year that analytically rigorous methodology; (3) Education allows countries to learn how they are are publicly available; (4) have broad Immunization Rates being measured, engage in dialogue country coverage; (5) are comparable Girls’ Education: with MCC about performance, and Primary Education Completion (LICs) across countries; (6) have a clear solicit feedback from the institutions Secondary Education Enrolment theoretical or empirical link to that produce these indicators. economic growth and poverty It is important to recognize that all of (LMICs) reduction; (7) are policy linked (i.e., MCC’s indicators have limitations, Child Health measure factors that governments can including these revised indicators. Over Natural Resource Protection influence within a two to three year the next year, MCC intends to continue Methodology horizon); and (8) have broad consistency working with the indicator institutions Similarly, in FY12 the Board will in results from year to year. There have to ensure the data and methodology are apply a status quo methodology, and a been numerous noteworthy the best available. improvements to data quality and revised methodology to the respective availability as a result of MCC’s Indicators indicator groupings. These are described application of the indicators and the In FY12 the Board will use two sets below. regular dialogue MCC has established of indicators to assess the policy Status Quo with the indicator institutions. performance of individual countries. In making its determination of These indicators are grouped under the MCC also annually reviews the eligibility with respect to a particular three policy categories listed below. The methodology used to evaluate country candidate country, the Board will performance. Since FY04, the 1 consider whether a country performs methodology has been that the Board The only exception is the Inflation indicator, which uses an absolute threshold of 15% as above the median in relation to its considers whether a country performs opposed to the median as its performance standard. income level peers (LIC or LMIC) on at

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least three of the indicators in each of whereby the Board may consider the poverty and generate economic growth the Ruling Justly, Encouraging indicator performance of countries that in the country, the funds available to Economic Freedom, and Investing in transitioned from the LIC to the LMIC MCC to carry out compact assistance, People categories, and above the median category both relative to their LMIC and the country’s track record of on the Control of Corruption indicator. peers as well as in comparison to the performance implementing its prior One exception to this methodology is current fiscal year’s LIC pool for a compact. To assess implementation of a that the median is not used for the period of three years. prior compact, MCC recommends that Inflation indicator. Instead, to pass the the Board consider the nature of the Supplementary Information Inflation indicator a country’s inflation country partnership with MCC, the rate must be under an absolute Consistent with the Act, the degree to which the country has threshold of 15 percent. The Board may indicators will be the predominant basis demonstrated a commitment and also take into consideration whether a for determining which countries will be capacity to achieve program results, and country performs substantially below eligible for MCA assistance. However, the degree to which the country has the median on any indicator (i.e., below the Board may exercise discretion when implemented the compact in accordance the 25th percentile) and has not taken evaluating performance on the with MCC’s core policies and standards. appropriate measures to address this indicators and determining a final list of Continuing Policy Performance shortcoming. eligible countries. Where necessary, the Board also may take into account other Country partners that are developing Revised quantitative and qualitative information or implementing a compact are expected In making its determination of (supplemental information) to to seek to maintain and improve policy eligibility with respect to a particular determine whether a country performed performance. MCC recognizes that candidate country, the Board will satisfactorily in relation to its peers in country partners may not meet the consider whether a country performs a given income category. There are eligibility criteria from time to time due above the median or absolute threshold elements of the criteria set out in the to a number of factors, such as changes on at least half of the indicators and at Act for which there is either limited in the peer-group median; transition least one indicator per category, above quantitative information (e.g., the rights into a new income category (e.g., from the median on the Control of Corruption of people with disabilities) or no well- LIC to LMIC); numerical declines in indicator, and above the absolute developed performance indicator. Until score that are within the statistical threshold on either the Civil Liberties or such data and/or indicators are margin of error; slight declines in policy Political Rights indicators. Indicators developed, the Board may rely on performance; revisions or corrections of with absolute thresholds in lieu of a additional data and qualitative data; the introduction of new sub-data median include a) Inflation, on which a information to assess policy sources; or changes in the indicators country’s inflation rate must be under a performance. For example, the State used to measure performance. None of fixed ceiling of 15 percent; b) Department Human Rights Report these factors alone signifies a significant Immunization Rates (LMICs only), on contains qualitative information to make policy reversal nor warrants suspension which an LMIC must have an assessment on a variety of criteria or termination of eligibility and/or immunization coverage above 90%; c) outlined by Congress, such as the rights assistance. Political Rights, on which countries of people with disabilities, the treatment However, countries that demonstrate must score above 17 and d) Civil of women and children, workers rights, a significant policy reversal may be Liberties, on which countries must score and human rights. Similarly, MCC may issued a warning, suspension, or above 25. The Board will also take into consult a variety of third party sources termination of eligibility and/or consideration whether a country to better understand the domestic assistance. According to MCC’s performs substantially worse in any potential for private sector led authorizing legislation, ‘‘[a]fter category (Ruling Justly, Investing in investment and growth. consultation with the Board, the Chief People, or Economic Freedoms) than The Board may also consider whether Executive Officer may suspend or they do on the overall scorecard. supplemental information should be terminate assistance in whole or in part Further details on how this considered to make up for data gaps, for a country or entity * * * if * * * methodology differs from the status quo lags, trends, or other weaknesses in the country or entity has engaged in a can be found in Annex B. particular indicators. As additional pattern of actions inconsistent with the information in the area of corruption, criteria used to determine the eligibility Other Considerations for the Board of the Board may consider how a country of the country or entity. * * *’’ This Directors is evaluated by supplemental sources pattern of actions need not be captured Approach to Income Classification like Transparency International’s in the indicators for MCC to take action. Transition Corruption Perceptions Index, the Potential Future Changes Each year a number of countries shift Global Integrity Report, and the income groups, and some countries Extractive Industry Transparency MCC will continue to explore formerly classified as LICs suddenly Initiative among others, as well as on potential changes to the indicators for face new, higher performance standards the defined indicator. future years. There are important areas in the LMIC group. As a result, they of policy performance in which typically perform worse relative to Consideration for Subsequent Compacts indicators have not yet been developed, LMIC countries, than they did compared Countries nearing the end of compact or expanded, to the degree needed for to other LIC countries, even if in implementation may be considered for inclusion in the MCC selection system. absolute terms they maintained or eligibility for a subsequent compact. In MCC would not envision expanding the improved their performance over the determining eligibility for subsequent number of indicators beyond the current previous year. To address the challenges compacts, MCC recommends that the twenty indicators. However, MCC associated with sudden changes in Board consider, among other factors, the remains interested in indicators that performance standards for these country’s policy performance using the measure policy performance related to countries, MCC has adopted an methodology and criteria described educational quality, maternal health, approach to income category transition above, the opportunity to reduce environmental degradation, budget

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transparency, and more actionable of Law, and Government Effectiveness); sustainable economic growth and indicators of corruption, which could be and combat corruption (Political Rights, reduction of poverty and thus provide a used to substitute for existing indicators Civil Liberties, Rule of Law, Freedom of sound environment for the use of MCA in the future or as supplemental Information, and Control of Corruption); funds. The indicators are not goals in information. While we have reviewed Section 607(b)(2): Economic freedom, themselves; rather they are proxy some indicators with promise— including a demonstrated commitment measures of policies that are linked to including education policy and quality to economic policies that—encourage broad-based sustainable economic indicators piloted by the World Bank’s citizens and firms to participate in growth. The indicators were selected Education for All, measures of maternal global trade and international capital based on their (i) relationship to health from the World Health markets (Fiscal Policy, Inflation, Trade economic growth and poverty Organization or the United Nations Policy, and Regulatory Quality); reduction, (ii) the number of countries (including skilled birth attendants or promote private sector growth (Inflation, they cover, (iii) transparency and process indicators regarding access to Business Start-Up, Fiscal Policy, Land availability, and (iv) relative soundness emergency obstetric care), preliminary Rights and Access, Access to Credit, and objectivity. Where possible, the data on air pollution provided by NASA Gender in the Economy, and Regulatory indicators are developed by satellites, assessments of budget Quality); strengthen market forces in the independent sources. transparency by Open Budget Index, economy (Fiscal Policy, Inflation, Trade Ruling Justly and corruption assessments published Policy, Business Start-Up, Land Rights by Global Integrity—none of these and Access, Access to Credit, and Civil Liberties: Independent experts indicators have sufficient periodicity Regulatory Quality); and respect worker rate countries on: freedom of and country coverage to be incorporated rights, including the right to form labor expression; association and into MCC’s scorecard at this time. unions (Civil Liberties and Gender in organizational rights; rule of law and It should be noted that the new the Economy); human rights; and personal autonomy Freedom of Information indicator Section 607(b)(3): Investments in the and economic rights, among other adopted as part of the revised people of such country, particularly things. Source: Freedom House methodology draws on independent, women and children, including Political Rights: Independent experts third party data, but is compiled by programs that—promote broad-based rate countries on: the prevalence of free MCC, similar to how MCC compiles primary education (Girls’ Primary and fair elections of officials with real third party data for the Land Rights and Education Completion, Girls’ Secondary power; the ability of citizens to form Access indicator. MCC welcomes the Education, and Public Expenditure on political parties that may compete fairly efforts of third party institutions to Primary Education); strengthen and in elections; freedom from domination improve and publish similar and build capacity to provide quality public by the military, foreign powers, improved indicators. health and reduce child mortality totalitarian parties, religious hierarchies (Immunization Rates, Public and economic oligarchies; and the Relationship to Legislative Criteria Expenditure on Health, and Child political rights of minority groups, Within each policy category, the Act Health); and promote the protection of among other things. Source: Freedom sets out a number of specific selection biodiversity and the transparent and House criteria. As indicated above, a set of sustainable management and use of Voice and Accountability (status quo objective and quantifiable policy natural resources (Natural Resource indicators only): An index of surveys indicators is used to determine Protection). and expert assessments that rate eligibility for MCA assistance and countries on: the ability of institutions measure the relative performance by Annex A: Indicator Definitions to protect civil liberties; the extent to candidate countries against these MCC is incorporating six new which citizens of a country are able to criteria. The Board’s approach to measures into the selection criteria and participate in the selection of determining eligibility ensures that dropping two previous measures. MCC’s governments; and the independence of performance against each of these Board of Directors approved these the media, among other things. Source: criteria is assessed by at least one of the changes for the FY12 selection process, Worldwide Governance Indicators objective indicators. Most are addressed though the Board will also consider how (World Bank/Brookings) by multiple indicators. The specific countries perform on the previous set of Freedom of Information (revised indicators appear in parentheses next to indicators. This gradual integration of indicators only): Measures the legal and the corresponding criterion set out in the indicators was designed to provide practical steps taken by a government to the Act. adequate notice to compact, threshold enable or allow information to move Section 607(b)(1): Just and democratic and candidate countries of the new freely through society; this includes governance, including a demonstrated measures and their performance before measures of press freedom, national commitment to —promote political the new indicators fully replaced the freedom of information laws, and the pluralism, equality and the rule of law previous indicators. A brief summary of extent to which a county is filtering (Political Rights, Civil Liberties, and the indicators follows; a detailed internet content or tools. Source: Rule of Law, Gender in the Economy); rationale for the adoption of these Freedom House/FRINGE Special/Open respect human and civil rights, indicators can be found in the Public Net Initiative including the rights of people with Guide to the Indicators (available at Government Effectiveness: An index disabilities (Political Rights, Civil http://www.mcc.gov). of surveys and expert assessments that Liberties, and Freedom of Information); The following indicators will be used rate countries on: the quality of public protect private property rights (Civil to measure candidate countries’ service provision; civil servants’ Liberties, Regulatory Quality, Rule of demonstrated commitment to the competency and independence from Law, and Land Rights and Access); criteria found in section 607(b) of the political pressures; and the encourage transparency and Act. The indicators are intended to government’s ability to plan and accountability of government (Political assess the degree to which the political implement sound policies, among other Rights, Civil Liberties, Freedom of and economic conditions in a country things. Source: Worldwide Governance Information, Control of Corruption, Rule serve to promote broad-based Indicators (World Bank/Brookings)

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Rule of Law: An index of surveys and market framework provide secure land Natural Resource Management (status expert assessments that rate countries tenure and equitable access to land in quo indicators only): An index made up on: the extent to which the public has rural areas and the time and cost of of four indicators: eco-region protection, confidence in and abides by the rules of property registration in urban and peri- access to improved water, access to society; the incidence and impact of urban areas. Source: The International improved sanitation, and child (ages 1– violent and nonviolent crime; the Fund for Agricultural Development and 4) mortality. Source: The Center for effectiveness, independence, and the International Finance Corporation International Earth Science Information predictability of the judiciary; the Access to Credit (revised indicators Network and the Yale Center for protection of property rights; and the only): An index that rates countries on Environmental Law and Policy enforceability of contracts, among other rules and practices affecting the Natural Resource Protection (revised things. Source: Worldwide Governance coverage, scope and accessibility of indicators only): Assesses whether Indicators (World Bank/Brookings) credit information available through countries are protecting up to 10 percent Control of Corruption: An index of either a public credit registry or a of all their biomes (e.g., deserts, tropical surveys and expert assessments that rate private credit bureau; as well as legal rainforests, grasslands, savannas and countries on: ‘‘grand corruption’’ in the rights in collateral laws and bankruptcy tundra). Source: The Center for political arena; the frequency of petty laws. Source: International Finance International Earth Science Information corruption; the effects of corruption on Corporation Network and the Yale Center for the business environment; and the Gender in the Economy (revised Environmental Law and Policy tendency of elites to engage in ‘‘state indicators only): An index that Child Health (revised indicators only): capture’’, among other things. Source: measures the extent to which laws An index made up of three indicators: Worldwide Governance Indicators provide men and women equal capacity access to improved water, access to improved sanitation, and child (ages 1– (World Bank/Brookings) to generate income or participate in the 4) mortality. Source: The Center for economy, including the capacity to Encouraging Economic Freedom International Earth Science Information access institutions, get a job, register a Inflation: The most recent average Network and the Yale Center for business, sign a contract, open a bank annual change in consumer prices. Environmental Law and Policy account, choose where to live, and Source: The International Monetary travel freely. Source: International Annex B: Changes to the Methodology Fund’s World Economic Outlook Finance Corporation Database New Absolute Thresholds Fiscal Policy: The overall budget Investing in People Political Rights: Countries that receive balance divided by GDP, averaged over Public Expenditure on Health: Total a score above 17 will be considered as a three-year period. The data for this expenditures on health by government passing this indicator. The median will measure come primarily from IMF at all levels divided by GDP. Source: no longer be calculated or utilized. country reports or, where public IMF The World Health Organization Civil Liberties: Countries that receive data are outdated or unavailable, are a score above 25 will be considered as provided directly by the recipient Immunization Rates: The average of DPT3 and measles immunization passing this indicator. The median will government with input from U.S. no longer be calculated or utilized. missions in host countries. All data are coverage rates for the most recent year available. Source: The World Health Immunization Rates: Lower middle cross-checked with the IMF’s World income countries (LMICs) that exceed Economic Outlook database to try to Organization and the United Nations Children’s Fund an immunization coverage rate of 90% ensure consistency across countries and will be considered as passing this Total Public Expenditure on Primary made publicly available. Source: indicator. The median will no longer be Education: Total expenditures on International Monetary Fund Country calculated or utilized for countries primary education by government at all Reports, National Governments, and the classified as LMICs. International Monetary Fund’s World levels divided by GDP. Source: The Economic Outlook Database United Nations Educational, Scientific New Democratic Rights Hard Hurdle Business Start-Up: An index that rates and Cultural Organization and National In making its determination of countries on the time and cost of Governments eligibility with respect to a particular complying with all procedures officially Girls’ Primary Completion Rate: The candidate country, the Board will required for an entrepreneur to start up number of female students enrolled in consider whether a country performs and formally operate an industrial or the last grade of primary education above the thresholds described above on commercial business. Source: minus repeaters divided by the either Political Rights or Civil Liberties. population in the relevant age cohort International Finance Corporation Require Countries to Pass Half of the Trade Policy: A measure of a (gross intake ratio in the last grade of Indicators Overall country’s openness to international primary). Source: United Nations trade based on weighted average tariff Educational, Scientific and Cultural In making its determination of rates and non-tariff barriers to trade. Organization eligibility with respect to a particular Source: The Heritage Foundation Girls Secondary Education (revised candidate country, the Board will Regulatory Quality: An index of indicators only): The number of female consider whether a country performs surveys and expert assessments that rate pupils enrolled in lower secondary above the median or absolute threshold countries on: the burden of regulations school, regardless of age, expressed as a on at least half of the indicators and at on business; price controls; the percentage of the population of females least one indicator per category. In order government’s role in the economy; and in the theoretical age group for lower to maintain a focus on the breadth of foreign investment regulation, among secondary education. Lower middle sound policy performance, the Board other areas. Source: Worldwide income counties (LMICs) will be will also take into consideration Governance Indicators (World Bank) assessed on this indicator instead of whether a country performs Land Rights and Access: An index Girls Primary Completion Rates. Source: substantially worse on any category that rates countries on the extent to United Nations Educational, Scientific (Ruling Justly, Investing in People, or which the institutional, legal, and and Cultural Organization Economic Freedoms).

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As with the current selection system, 9. An estimate of the total number of NUCLEAR REGULATORY the Board may exercise discretion in hours needed annually to complete the COMMISSION evaluating and translating the indicators requirement or request: 50. [NRC–2011–0230] into a final list of eligible countries and, 10. Abstract: NRC Form 445, ‘‘Request in this respect, the Board may also for Approval of Foreign Travel,’’ is Biweekly Notice Applications and consider whether any adjustments supplied by consultants, contractors, Amendments to Facility Operating should be made for data gaps, lags, and NRC invited travelers who must Licenses Involving No Significant trends or other weaknesses in particular Hazards Considerations indicators. Where necessary, the Board travel to foreign countries in the course may also take into account other data of conducting business for the NRC. In Background accordance with 48 CFR part 20, ‘‘NRC and quantitative and qualitative Pursuant to Section 189a. (2) of the information to determine whether a Acquisition Regulation,’’ contractors traveling to foreign countries are Atomic Energy Act of 1954, as amended country performed satisfactorily in (the Act), the U.S. Nuclear Regulatory required to complete this form. The relation to its peers in a given category Commission (the Commission or NRC) information requested includes the (‘‘supplemental information’’). is publishing this regular biweekly name of the Office Director/Regional [FR Doc. 2011–25540 Filed 9–29–11; 4:15 pm] notice. The Act requires the Administrator or Chairman, as BILLING CODE 9211–03–P Commission publish notice of any appropriate, the traveler’s identifying amendments issued, or proposed to be information, purpose of travel, listing of issued and grants the Commission the NUCLEAR REGULATORY the trip coordinators, other NRC authority to issue and make COMMISSION travelers and contractors attending the immediately effective any amendment same meeting, and a proposed itinerary. to an operating license upon a [Docket No. NRC–2011–0123] The public may examine and have determination by the Commission that Agency Information Collection copied for a fee publicly available such amendment involves no significant Activities: Submission for the Office of documents, including the final hazards consideration, notwithstanding Management and Budget (OMB) supporting statement, at the NRC’s the pendency before the Commission of Review; Comment Request Public Document Room, Room O–1F21, a request for a hearing from any person. One White Flint North, 11555 Rockville This biweekly notice includes all AGENCY: Nuclear Regulatory Pike, Rockville, Maryland. OMB notices of amendments issued, or proposed to be issued from September Commission. clearance requests are available at the 7, 2011, to September 21, 2011. The last ACTION: Notice of the OMB review of NRC Web site: http://www.nrc.gov/ information collection and solicitation biweekly notice was published on public-involve/doc-comment/omb/ September 20, 2011 (76 FR 58303). of public comment. index.html. The document will be ADDRESSES: Please include Docket ID available on the NRC home page site for SUMMARY: The U.S. Nuclear Regulatory NRC–2011–0230 in the subject line of 60 days after the signature date of this Commission (NRC) has recently your comments. For additional submitted to OMB for review the notice. instructions on submitting comments following proposal for the collection of Comments and questions should be and instructions on accessing information under the provisions of the directed to the OMB reviewer listed documents related to this action, see Paperwork Reduction Act of 1995 (44 below by November 3, 2011. Comments ‘‘Submitting Comments and Accessing U.S.C. Chapter 35). The NRC hereby received after this date will be Information’’ in the SUPPLEMENTARY informs potential respondents that an considered if it is practical to do so, but INFORMATION section of this document. agency may not conduct or sponsor, and assurance of consideration cannot be You may submit comments by any one that a person is not required to respond given to comments received after this of the following methods: • to, a collection of information unless it date. Federal Rulemaking Web site: Go to displays a currently valid OMB control http://www.regulations.gov and search number. The NRC published a Federal Chad Whiteman, Desk Officer, Office for documents filed under Docket ID Register Notice with a 60-day comment of Information and Regulatory Affairs NRC–2011–0230. Address questions period on this information collection on (3150–0193), NEOB–10202, Office of about NRC dockets to Carol Gallagher, June 14, 2011 (76 FR 34762). Management and Budget, Washington, telephone: 301–492–3668; e-mail: 1. Type of submission, new, revision, DC 20503. [email protected]. or extension: Extension. Comments can also be e-mailed to • Mail comments to: Cindy Bladey, 2. The title of the information [email protected] or submitted Chief, Rules, Announcements, and collection: NRC Form 445—Request for by telephone at 202–395–4718. Directives Branch (RADB), Office of Approval of Official Foreign Travel. Administration, Mail Stop: TWB–05– The NRC Clearance Officer is 3. Current OMB approval number: B01M, U.S. Nuclear Regulatory Tremaine Donnell, 301–415–6258. 3150–0193. Commission, Washington, DC 20555– 4. The form number if applicable: Dated at Rockville, Maryland, this 27th day 0001. NRC Form 445. of September, 2011. • Fax comments to: RADB at 301– 5. How often the collection is For the Nuclear Regulatory Commission. 492–3446. required: On occasion. Tremaine Donnell, SUPPLEMENTARY INFORMATION: 6. Who will be required or asked to NRC Clearance Officer, Office of Information report: Non-Federal consultants, Submitting Comments and Accessing Services. Information contractors and invited travelers. [FR Doc. 2011–25462 Filed 10–3–11; 8:45 am] 7. An estimate of the number of Comments submitted in writing or in BILLING CODE 7590–01–P annual responses: 50. electronic form will be posted on the 8. The estimated number of annual NRC Web site and on the Federal respondents: 50. rulemaking Web site, http://

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www.regulations.gov. Because your any accident previously evaluated; or petition; and the Secretary or the Chief comments will not be edited to remove (3) involve a significant reduction in a Administrative Judge of the Atomic any identifying or contact information, margin of safety. The basis for this Safety and Licensing Board will issue a the NRC cautions you against including proposed determination for each notice of a hearing or an appropriate any information in your submission that amendment request is shown below. order. you do not want to be publicly The Commission is seeking public As required by 10 CFR 2.309, a disclosed. comments on this proposed petition for leave to intervene shall set The NRC requests that any party determination. Any comments received forth with particularity the interest of soliciting or aggregating comments within 30 days after the date of the petitioner in the proceeding, and received from other persons for publication of this notice will be how that interest may be affected by the submission to the NRC inform those considered in making any final results of the proceeding. The petition persons that the NRC will not edit their determination. should specifically explain the reasons comments to remove any identifying or Normally, the Commission will not why intervention should be permitted contact information, and therefore, they issue the amendment until the with particular reference to the should not include any information in expiration of 60 days after the date of following general requirements: (1) The their comments that they do not want publication of this notice. The name, address, and telephone number of publicly disclosed. Commission may issue the license the requestor or petitioner; (2) the You can access publicly available amendment before expiration of the 60- nature of the requestor’s/petitioner’s documents related to this document day period provided that its final right under the Act to be made a party using the following methods: determination is that the amendment to the proceeding; (3) the nature and • NRC’s Public Document Room involves no significant hazards extent of the requestor’s/petitioner’s (PDR): The public may examine and consideration. In addition, the property, financial, or other interest in have copied, for a fee, publicly available Commission may issue the amendment the proceeding; and (4) the possible documents at the NRC’s PDR, Room O1– prior to the expiration of the 30-day effect of any decision or order which F21, One White Flint North, 11555 comment period should circumstances may be entered in the proceeding on the Rockville Pike, Rockville, Maryland change during the 30-day comment requestor’s/petitioner’s interest. The 20852. period such that failure to act in a petition must also identify the specific • NRC’s Agencywide Documents timely way would result, for example in contentions which the requestor/ Access and Management System derating or shutdown of the facility. petitioner seeks to have litigated at the (ADAMS): Publicly available documents Should the Commission take action proceeding. created or received at the NRC are prior to the expiration of either the Each contention must consist of a available online in the NRC Library at comment period or the notice period, it specific statement of the issue of law or http://www.nrc.gov/reading-rm/ will publish in the Federal Register a fact to be raised or controverted. In adams.html. From this page, the public notice of issuance. Should the addition, the requestor/petitioner shall can gain entry into ADAMS, which Commission make a final No Significant provide a brief explanation of the bases provides text and image files of the Hazards Consideration Determination, for the contention and a concise NRC’s public documents. If you do not any hearing will take place after statement of the alleged facts or expert have access to ADAMS or if there are issuance. The Commission expects that opinion which support the contention problems in accessing the documents the need to take this action will occur and on which the requestor/petitioner located in ADAMS, contact the NRC’s very infrequently. intends to rely in proving the contention PDR reference staff at 1–800–397–4209, Within 60 days after the date of at the hearing. The requestor/petitioner 301–415–4737, or by e-mail to publication of this notice, any person(s) must also provide references to those [email protected]. whose interest may be affected by this specific sources and documents of • Federal Rulemaking Web site: action may file a request for a hearing which the petitioner is aware and on Public comments and supporting and a petition to intervene with respect which the requestor/petitioner intends materials related to this notice can be to issuance of the amendment to the to rely to establish those facts or expert found at http://www.regulations.gov by subject facility operating license. opinion. The petition must include searching on Docket ID NRC–2011– Requests for a hearing and a petition for sufficient information to show that a 0230. leave to intervene shall be filed in genuine dispute exists with the accordance with the Commission’s applicant on a material issue of law or Notice of Consideration of Issuance of ’’Rules of Practice for Domestic fact. Contentions shall be limited to Amendments to Facility Operating Licensing Proceedings’’ in 10 CFR part matters within the scope of the Licenses, Proposed No Significant 2. Interested person(s) should consult a amendment under consideration. The Hazards Consideration Determination, current copy of 10 CFR 2.309, which is contention must be one which, if And Opportunity for a Hearing available at the NRC’s PDR, located at proven, would entitle the requestor/ The Commission has made a One White Flint North, Room O1–F21, petitioner to relief. A requestor/ proposed determination that the 11555 Rockville Pike (first floor), petitioner who fails to satisfy these following amendment requests involve Rockville, Maryland 20852. NRC requirements with respect to at least one no significant hazards consideration. regulations are accessible electronically contention will not be permitted to Under the Commission’s regulations in from the NRC Library on the NRC Web participate as a party. Title 10 of the Code of Federal site at http://www.nrc.gov/reading-rm/ Those permitted to intervene become Regulations (10 CFR), 50.92, this means doc-collections/cfr/. If a request for a parties to the proceeding, subject to any that operation of the facility in hearing or petition for leave to intervene limitations in the order granting leave to accordance with the proposed is filed by the above date, the intervene, and have the opportunity to amendment would not (1) Involve a Commission or a presiding officer participate fully in the conduct of the significant increase in the probability or designated by the Commission or by the hearing. consequences of an accident previously Chief Administrative Judge of the If a hearing is requested, the evaluated; or (2) create the possibility of Atomic Safety and Licensing Board Commission will make a final a new or different kind of accident from Panel, will rule on the request and/or determination on the issue of no

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significant hazards consideration. The which is available on the agency’s submittals.html, by e-mail at final determination will serve to decide public Web site at http://www.nrc.gov/ [email protected], or by a toll- when the hearing is held. If the final site-help/e-submittals.html. Participants free call at 1–866–672–7640. The NRC determination is that the amendment may attempt to use other software not Meta System Help Desk is available request involves no significant hazards listed on the Web site, but should note between 8 a.m. and 8 p.m., Eastern consideration, the Commission may that the NRC’s E-Filing system does not Time, Monday through Friday, issue the amendment and make it support unlisted software, and the NRC excluding government holidays. immediately effective, notwithstanding Meta System Help Desk will not be able Participants who believe that they the request for a hearing. Any hearing to offer assistance in using unlisted have a good cause for not submitting held would take place after issuance of software. documents electronically must file an the amendment. If the final If a participant is electronically exemption request, in accordance with determination is that the amendment submitting a document to the NRC in 10 CFR 2.302(g), with their initial paper request involves a significant hazards accordance with the E-Filing rule, the filing requesting authorization to consideration, then any hearing held participant must file the document continue to submit documents in paper would take place before the issuance of using the NRC’s online, Web-based format. Such filings must be submitted any amendment. submission form. In order to serve by: (1) first class mail addressed to the All documents filed in NRC documents through the Electronic Office of the Secretary of the adjudicatory proceedings, including a Information Exchange System, users Commission, U.S. Nuclear Regulatory request for hearing, a petition for leave will be required to install a Web Commission, Washington, DC 20555– to intervene, any motion or other browser plug-in from the NRC Web site. 0001, Attention: Rulemaking and document filed in the proceeding prior Further information on the Web-based Adjudications Staff; or (2) courier, to the submission of a request for submission form, including the express mail, or expedited delivery hearing or petition to intervene, and installation of the Web browser plug-in, service to the Office of the Secretary, documents filed by interested is available on the NRC’s public Web Sixteenth Floor, One White Flint North, governmental entities participating site at http://www.nrc.gov/site-help/e- 11555 Rockville Pike, Rockville, under 10 CFR 2.315(c), must be filed in submittals.html. Maryland, 20852, Attention: accordance with the NRC E-Filing rule Once a participant has obtained a Rulemaking and Adjudications Staff. (72 FR 49139, August 28, 2007). The E- digital ID certificate and a docket has Participants filing a document in this Filing process requires participants to been created, the participant can then manner are responsible for serving the submit and serve all adjudicatory submit a request for hearing or petition document on all other participants. documents over the internet, or in some for leave to intervene. Submissions Filing is considered complete by first- cases to mail copies on electronic should be in Portable Document Format class mail as of the time of deposit in storage media. Participants may not (PDF) in accordance with the NRC the mail, or by courier, express mail, or submit paper copies of their filings guidance available on the NRC public expedited delivery service upon unless they seek an exemption in Web site at http://www.nrc.gov/site- depositing the document with the accordance with the procedures help/e-submittals.html. A filing is provider of the service. A presiding described below. considered complete at the time the officer, having granted an exemption To comply with the procedural documents are submitted through the request from using E-Filing, may require requirements of E-Filing, at least 10 NRC’s E-Filing system. To be timely, an a participant or party to use E-Filing if days prior to the filing deadline, the electronic filing must be submitted to the presiding officer subsequently participant should contact the Office of the E-Filing system no later than 11:59 determines that the reason for granting the Secretary by e-mail at p.m. Eastern Time on the due date. the exemption from use of E-Filing no [email protected], or by telephone Upon receipt of a transmission, the E- longer exists. at 301–415–1677, to request (1) A digital Filing system time-stamps the document Documents submitted in adjudicatory identification (ID) certificate, which and sends the submitter an e-mail notice proceedings will appear in NRC’s allows the participant (or its counsel or confirming receipt of the document. The electronic hearing docket which is representative) to digitally sign E-Filing system also distributes an e- available to the public at http:// documents and access the E-Submittal mail notice that provides access to the ehd1.nrc.gov/ehd/, unless excluded server for any proceeding in which it is document to the NRC Office of the pursuant to an order of the Commission, participating; and (2) advise the General Counsel and any others who or the presiding officer. Participants are Secretary that the participant will be have advised the Office of the Secretary requested not to include personal submitting a request or petition for that they wish to participate in the privacy information, such as social hearing (even in instances in which the proceeding, so that the filer need not security numbers, home addresses, or participant, or its counsel or serve the documents on those home phone numbers in their filings, representative, already holds an NRC- participants separately. Therefore, unless an NRC regulation or other law issued digital ID certificate). Based upon applicants and other participants (or requires submission of such this information, the Secretary will their counsel or representative) must information. With respect to establish an electronic docket for the apply for and receive a digital ID copyrighted works, except for limited hearing in this proceeding if the certificate before a hearing request/ excerpts that serve the purpose of the Secretary has not already established an petition to intervene is filed so that they adjudicatory filings and would electronic docket. can obtain access to the document via constitute a Fair Use application, Information about applying for a the E-Filing system. participants are requested not to include digital ID certificate is available on A person filing electronically using copyrighted materials in their NRC’s public Web site at http:// the agency’s adjudicatory E-Filing submission. www.nrc.gov/site-help/e-submittals/ system may seek assistance by Petitions for leave to intervene must apply-certificates.html. System contacting the NRC Meta System Help be filed no later than 60 days from the requirements for accessing the E- Desk through the ‘‘Contact Us’’ link date of publication of this notice. Non- Submittal server are detailed in NRC’s located on the NRC Web site at http:// timely filings will not be entertained ‘‘Guidance for Electronic Submission,’’ www.nrc.gov/site-help/e- absent a determination by the presiding

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officer that the petition or request does not involve any design or physical new failure modes for the ADVs and should be granted or the contentions changes to the facility, including the does not affect the interaction between should be admitted, based on a ADV lines and their associated ADVs, the ADVs and any other system. balancing of the factors specified in 10 block valves, pneumatic controllers, Therefore, the proposed change does CFR 2.309(c)(1)(i)–(viii). instrument power circuits, or control not create the possibility of a new or For further details with respect to this circuits. The design and functional different kind of accident from any license amendment application, see the performance requirements, operational previously evaluated. application for amendment which is characteristics, and reliability of the 3. Does the proposed amendment available for public inspection at the ADV lines remain unchanged. involve a significant reduction in a NRC’s PDR, located at One White Flint Therefore, there is no impact on the margin of safety? North, Room O1–F21, 11555 Rockville design safety function of the ADVs to Response: No. Pike (first floor), Rockville, Maryland open (which mitigates certain The proposed amendment will revise 20852. Publicly available documents postulated accidents by providing TS 3.7.4, to require four ADV lines be created or received at the NRC are Reactor Coolant System heat removal) OPERABLE in MODES 1, 2, and 3, as accessible electronically through nor on the design safety function of the well as in MODE 4, when a SG is relied ADAMS in the NRC Library at http:// ADVs to close (which mitigates certain upon for heat removal. The proposed www.nrc.gov/reading-rm/adams.html. postulated accidents by providing change to TS 3.7.4 is consistent with the Persons who do not have access to containment isolation). Furthermore, PVNGS UFSAR Chapters 6 and 15 safety ADAMS or who encounter problems in there is no change with respect to an analyses. The proposed change does not accessing the documents located in inadvertent opening of an ADV (as a alter the manner in which safety limits ADAMS, should contact the NRC PDR potential transient initiator). or limiting safety system settings are Reference staff at 1–800–397–4209, 301– With regard to the consequences of determined. No changes to instrument 415–4737, or by e-mail to postulated design basis accidents and and/or system actuation setpoints are [email protected]. the equipment required for mitigation of involved. Safety and Branch Technical those accidents, the proposed TS Position (BTP) RSB 5–1 analysis Arizona Public Service Company, et al., changes involve no design or physical acceptance criteria are not impacted by Docket Nos. STN 50–528, STN 50–529, changes to the ADV lines or any other this change and the proposed change and STN 50–530, Palo Verde Nuclear equipment required for accident will not permit plant operation in a Generating Station, Units 1, 2, and 3, mitigation. The proposed ADV TS configuration outside the design basis. Maricopa County, Arizona change does not affect any design basis Therefore, the proposed change does Date of Amendment Request: June 22, analysis or the results of those analyses. not involve a significant reduction in 2011. The change provides additional the margin of safety. Description of Amendment Request: assurance that ADVs will be available as The NRC staff has reviewed the The amendments would revise required. licensee’s analysis and, based on that Technical Specification (TS) 3.7.4, Therefore, the proposed change does review, it appears that the three ‘‘Atmospheric Dump Valves (ADVs).’’ not involve a significant increase in the standards of 10 CFR 50.92(c) are Specifically, the amendment would probability or consequences of an satisfied. Therefore, the NRC staff revise the Limiting Condition for accident previously analyzed. proposes to determine that the request Operation for TS 3.7.4, with 2. Does the proposed change create for amendments involves no significant corresponding revisions to the TS the possibility of a new or different kind hazards consideration. Conditions, Required Actions, and of accident from any accident Attorney for Licensee: Michael G. Completion Times associated with one previously evaluated? Green, Senior Regulatory Counsel, or more inoperable ADV lines. The Response: No. Pinnacle West Capital Corporation, P.O. proposed change would require four The proposed amendment will revise Box 52034, Mail Station 8695, Phoenix, ADV lines to be operable in MODES 1, TS 3.7.4, to require four ADV lines be Arizona 85072–2034. 2, and 3, as well as in MODE 4 when OPERABLE in MODES 1, 2, and 3, as NRC Branch Chief: Michael T. a steam generator (SG) is relied upon for well as in MODE 4, when a SG is relied Markley. upon for heat removal. The proposed heat removal. Detroit Edison, Docket No. 50–341, Basis for Proposed No Significant change to TS 3.7.4 is consistent with the Fermi 2, Monroe County, Michigan Hazards Consideration Determination: PVNGS UFSAR Chapters 6 and 15 safety As required by 10 CFR 50.91(a), the analyses. The proposed change does not Date of Amendment Request: August licensee has provided its analysis of the involve any design or physical changes 12, 2011. issue of no significant hazards to the facility, including the ADV lines Description of Amendment Request: consideration, which is presented and their associated ADVs, block valves, The proposed amendment would revise below: pneumatic controllers, instrument TS 3.8.3, ‘‘Diesel Fuel Oil and Starting 1. Does the proposed amendment power circuits, or control circuits. No Air,’’ by relocating the current stored involve a significant increase in the physical alteration of the plant is diesel fuel oil numerical volume probability or consequences of an involved. The proposed change does not requirements from the Technical accident previously evaluated? involve or introduce any changes to Specifications (TS) to the TS Bases so Response: No. plant procedures that could cause a new that it may be modified under licensee The proposed amendment will revise or different kind of accident from any control. The TS is modified so that the TS 3.7.4, to require four ADV lines be previously evaluated. The proposed stored diesel fuel oil inventory will OPERABLE in MODES 1, 2, and 3, as change ensures that the ADVs perform require that a 7 day supply be available well as in MODE 4, when a SG is relied their intended functions during all for each diesel generator. Condition A in upon for heat removal. The proposed design basis accidents for which they the Action table and Surveillance change to TS 3.7.4 is consistent with the are credited. The proposed change does Requirement (SR) 3.8.3.1 are revised to PVNGS UFSAR [Updated Final Safety not involve the creation of any new or reflect the above change. Analysis Report] Chapters 6 and 15 different kind of accident initiator. The Basis for Proposed No Significant safety analyses. The proposed change proposed change does not create any Hazards Consideration Determination:

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As required by 10 CFR 50.91(a), the 3. Does the proposed change involve 1. Does the proposed change involve licensee has provided its analysis of the a significant reduction in a margin of a significant increase in the probability issue of no significant hazards safety? or consequences of an accident consideration, which is presented Response: No previously evaluated? below: The proposed change relocates the Response: No. 1. Does the proposed change involve volume of diesel fuel oil required to The proposed change continues to a significant increase in the probability support 7 day operation of the onsite implement the Waterford 3 Steam or consequences of an accident diesel generators, and the volume Generator (SG) Program performance previously evaluated? equivalent to a 6 day supply, and one criteria for tube structural integrity, Response: No hour day tank supply to licensee accident induced leakage, and The proposed change relocates the control. As the bases for the existing operational leakage for the replacement volume of diesel fuel oil required to limits on diesel fuel oil are not changed, SGs. Meeting the performance criteria support 7 day operation of the onsite no change is made to the accident provides reasonable assurance that the diesel generators, and the volume analysis assumptions and no margin of replacement SG tubing will remain equivalent to a 6 day supply, to licensee safety is reduced as part of this change. capable of fulfilling its specific safety control. The specific volume of fuel oil Therefore, the proposed change does function of maintaining reactor coolant equivalent to a 7 and 6 day supply is not involve a significant reduction in a system (RCS) pressure boundary calculated using the NRC-approved margin of safety. integrity throughout each operating methodology described in Regulatory The NRC staff has reviewed the cycle and in the unlikely event of a Guide 1.137, Revision 1, ‘‘Fuel-Oil licensee’s analysis and, based on this design basis accident. Systems for Standby Diesel Generators’’ review, it appears that the three Sufficient SG tube structural margin and ANSI–N195 1976, ‘‘Fuel Oil standards of 10 CFR 50.92(c) are above the 40 [percent (%)] SG tube Systems for Standby Diesel-Generators’’ satisfied. Therefore, the NRC staff plugging criteria is retained for the based on the diesel generator proposes to determine that the replacement SGs to ensure that the manufacturer’s consumption values amendment request involves no probability of an accident is unchanged. including consideration of minimum significant hazards consideration. The replacement SGs are designed with required energy content. Because the Attorney for Licensee: Bruce R. substantial margin to burst. Therefore, requirement to maintain a 7 day supply Masters, DTE Energy, General Council— the proposed change does not affect the of diesel fuel oil is not changed and is Regulatory, 688 WCB, One Energy Plaza, probability of a[n] SGTR [steam consistent with the assumptions in the Detroit, MI 48226–1279. generator tube rupture] accident. The accident analyses, and the actions taken NRC Branch Chief: Robert J. extension of the SG tube inspection when the volume of fuel oil are less Pascarelli. frequency after initial inspection is than a 6 day supply have not changed, Entergy Operations, Inc., Docket No. 50– based on the low likelihood of having neither the probability nor the 382, Waterford Steam Electric Station, potential tube flaws and is considered to consequences of any accident Unit 3 (Waterford 3), St. Charles Parish, be an acceptable inspection period to previously evaluated will be affected. Louisiana preserve pressure boundary integrity. As The proposed change also relocates a result, there will be no affect on the the volume of diesel fuel oil required to Date of amendment request: July 20, previous dose analysis reported in the support one hour of diesel generator 2011. Updated Final Safety Analysis Report operation at full load in the day tank. Description of Amendment Request: [(UFSAR)] and the consequences of any The specific volume and time is not Entergy Operations, Inc. (the licensee), accident are unchanged. changed and is consistent with the will be replacing the two Waterford 3 Therefore, this change does not existing plant design basis to support steam generators (SGs) during the 18th involve a significant increase in the the emergency diesel generator under refueling outage which will commence probability or consequences of an accident loading conditions. in the fall of 2012. The existing accident previously evaluated. Therefore, the proposed change does Waterford 3 Technical Specification 2. Does the proposed change create not involve a significant increase in the (TS) 6.5.9, ‘‘Steam Generator (SG) the possibility of a new or different kind probability or consequences of an Program,’’ contains an alternate repair of accident from any accident accident previously evaluated. criterion for SG tube inspections that is previously evaluated? 2. Does the proposed change create no longer applicable to the replacement Response: No. the possibility of a new or different kind SGs. Additionally, the replacement SGs Steam generator tube rupture events of accident from any accident will contain improved Alloy 690 have already been postulated and previously evaluated? thermally treated (TT) tubing material. analyzed in the Waterford 3 [UFSAR]. Response: No Therefore, the SG tubing inservice The improved Alloy 690TT SG tubing The change does not involve a inspection frequencies may be extended material in the Waterford 3 replacement physical alteration of the plant (i.e., no beyond that currently allowed by the SG reduces the likelihood of creating new or different type of equipment will Waterford TSs. The proposed new or different types of tubing flaws. be installed) or a change in the methods amendment would modify TS 3/4.4.4, The proposed changes do not reduce the governing normal plant operation. The ‘‘Steam Generator (SG) Tube Integrity,’’ design requirements of the SG tubes that change does not alter assumptions made TS 6.5.9, and TS 6.9.1.5, ‘‘Steam would affect the current accident in the safety analysis but ensures that Generator Tube Inspection Report,’’ to analysis. The proposed amendment the diesel generator operates as assumed reflect the above changes. does not impact any other plant systems in the accident analysis. The proposed Basis for Proposed No Significant or components. The SG tube inspection change is consistent with the safety Hazards Consideration Determination: TS requirements assure that potential analysis assumptions. As required by 10 CFR 50.91(a), the tubing flaws will be detected prior to Therefore, the proposed change does licensee has provided its analysis of the affecting tube integrity and the RCS not create the possibility of a new or issue of no significant hazards pressure boundary. different kind of accident from any consideration, which is presented Therefore, the proposed change does accident previously evaluated. below: not create the possibility of a new or

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different kind of accident from any 1. Does the proposed change involve performed at the same frequency as is previously evaluated. a significant increase in the probability currently required by the TS, only the 3. Does the proposed change involve or consequences of an accident method of performing the check will be a significant reduction in a margin of previously evaluated? changed. Consequently, core reactivity safety? Response: No. assumptions made in safety analyses Response: No. The proposed TS change does not will continue to be adequately verified. The structural integrity, accident affect any plant systems, structures, or Therefore, the proposed amendment induced leakage, and operational components designed for the prevention does not therefore involve a significant leakage performance criteria required by or mitigation of previously evaluated reduction in a margin of safety. the Waterford 3 technical specifications accidents. The amendment would only The NRC staff has reviewed the provide substantial design margin for change how the reactivity anomaly licensee’s analysis and, based on this assuring SG tube integrity against the check is performed. Verifying that the review, it appears that the three possibility of a[n] SG tube pressure core reactivity is consistent with standards of 10 CFR 50.92(c) are boundary failure. The analyzed 55% predicted values ensures that accident satisfied. Therefore, the NRC staff structural limit provides sufficient and transient safety analyses remain proposes to determine that the margin above the SG tube plugging valid. This amendment changes the LCO amendment request involves no criteria of 40% for consideration of eddy 3.1.2 and Surveillance Requirement (SR) significant hazards consideration. current measurement uncertainty and 3.1.2.1 requirements such that the check Attorney for Licensee: Mr. Bradley J. allowance for inspection cycle flaw is performed by a direct comparison of Fewell, Associate General Counsel, growth. The proposed change removes keff rather than by comparing predicted Exelon Generation Company, LLC, 4300 an existing alternate repair criterion that to actual control rod density. On-line Winfield Road, Warrenville, IL 60555. is not applicable to the replacement SGs core monitoring systems, such as the NRC Branch Chief: Jacob I. and establishes appropriate SG tube one currently in use at Clinton Power Zimmerman. subsequent inspection periods Station, Unit 1 (CPS), are capable of Indiana Michigan Power Company (the consistent with the new SG tubing performing the direct measurement of licensee), Docket Nos. 50–315 and 50– design. The replacement SGs will reactivity. 316, Donald C. Cook Nuclear Plant continue to meet their required Therefore, since the reactivity (CNP), Units 1 and 2, Berrien County, performance criteria. The Waterford 3 anomaly check will continue to be Michigan SG tube inspection program will assure performed by a viable method, the Date of amendment request: July 1, that this margin is maintained through proposed amendment does not involve 2011, as supplemented on September 2, the operational life of the plant. a significant increase in the probability Therefore, the proposed change does 2011. or consequence of any previously Description of amendment request: not involve a significant reduction in a evaluated accident. Currently CNP Units 1 and 2 have a fire margin of safety. 2. Does the proposed change create protection program that is based on The NRC staff has reviewed the the possibility of a new or different kind compliance with 10 CFR 50.48(a), 10 licensee’s analysis and, based on this of accident from any accident CFR 50.48(b), 10 CFR Part 50, Appendix review, it appears that the three previously evaluated? standards of 10 CFR 50.92(c) are Response: No. R, NRC guidance document Branch satisfied. Therefore, the NRC staff This TS amendment request does not Technical Position APCSB 9.5–1 proposes to determine that the involve any changes to the operation, Appendix A, and a license condition for amendment request involves no testing, or maintenance of any safety- each unit. The proposed amendment significant hazards consideration. related or otherwise important to safety, would transition the CNP fire protection Attorney for Licensee: Joseph A. system. All systems that are important program to a new risk-informed, Aluise, Associate General Council— to safety will continue to be operated performance-based alternative per 10 Nuclear, Entergy Services, Inc., 639 and maintained within their design CFR 50.48(c) which incorporates by Loyola Avenue, New Orleans, Louisiana bases. The proposed changes to LCO reference the National Fire Protection 70113. 3.1.2 and SR 3.1.2.1 will only provide Association (NFPA) Standard 805 NRC Branch Chief: Michael T. a new, efficient method of detecting an (NFPA 805), ‘‘Performance-Based Markley. unexpected change in core reactivity. Standard for Fire Protection for Light Since all systems continue to be Water Reactor Electric Generating Exelon Generation Company, LLC, operated within their design bases, no Plants—2001.’’ In the rulemaking that Docket No. 50–461, Clinton Power new failure modes are introduced, nor led to promulgation of 10 CFR 50.48(c), Station, Unit 1, DeWitt County, Illinois is the possibility of a new or different the NRC stated that NFPA 805 provides Date of Amendment Request: June 13, kind of accident created. an acceptable alternative to 10 CFR 2011. 3. Does the proposed change involve 50.48(b), and satisfies 10 CFR 50.48(a) Description of Amendment Request: a significant reduction in a margin of and General Design Criterion 3 of The proposed amendment would revise safety? Appendix A to 10 CFR Part 50. Upon the Limiting Condition for Operation Response: No. approval of the transition to NFPA 805, (LCO) 3.1.2, ‘‘Reactivity Anomalies,’’ This proposed TS amendment the CNP licensing basis per 10 CFR through a revision to the method for proposes to change the method for 50.48(b) and 10 CFR Part 50, Appendix calculating core reactivity for the performing the reactivity anomaly R will be superseded. To achieve the purpose of performing an anomaly surveillance from a comparison of transition to the new requirements check. predicted to actual control rod density outlined in NFPA 805, the licensee is Basis for Proposed No Significant to a comparison of predicted to actual implementing the methodology Hazards Consideration Determination: keff. The direct comparison of keff identified in Nuclear Energy Institute As required by 10 CFR 50.91(a), the provides a more direct method of (NEI) document 04–02, ‘‘Guidance for licensee has provided its analysis of the calculating any differences in the Implementing a Risk-informed, issue of no significant hazards expected core reactivity. The reactivity Performance-Based Fire Protection consideration which is presented below: anomaly check will continue to be Program Under 10 CFR 50.48(c).’’

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Basis for Proposed No Significant limiting safety system settings, or Control of Surveillance Frequencies’’ Hazards Consideration Determination: limiting conditions for operation are (ADAMS Accession No. ML071360456). As required by 10 CFR 50.91(a), the determined. The proposed change does Basis for Proposed No Significant licensee has provided its analysis of the not involve any safety analysis Hazards Consideration Determination: issue of no significant hazards acceptance criteria in the current CNP As required by 10 CFR 50.91(a), the consideration. The NRC staff performed licensing basis, and does not adversely licensee has provided its analysis of the its own analysis, which is presented affect existing plant safety margins or issue of no significant hazards below: the reliability of equipment assumed to consideration (consistent with the no 1. Does the proposed change involve mitigate accidents in the UFSAR. significant hazards consideration a significant increase in the probability Therefore, the proposed change does published in the Federal Register on or consequences of an accident not involve a significant reduction in a July 6, 2009 (74 FR 31996) for TSTF– previously evaluated? margin of safety. 425, Revision 3), which is presented Response: No. The NRC staff has reviewed the below: Upon approval by the NRC staff, the licensee’s analysis and, based on the 1. Does the proposed change involve risk-informed and performance-based NRC staff’s own analysis, it appears that a significant increase in the probability NFPA 805 fire protection program will the three standards of 10 CFR 50.92(c) or consequences of any accident provide the same level of safety as the are satisfied. Therefore, the NRC staff previously evaluated? current licensing basis. None of the proposes to determine that the proposed Response: No. accidents evaluated in the CNP Updated amendment involves no significant The proposed change relocates the Final Safety Analysis Report (UFSAR) hazards consideration. specified frequencies for periodic surveillance requirements to licensee were postulated to be initiated by fire Attorney for Licensee: James M. Petro, control under a new Surveillance protection equipment or elements of the Jr., Senior Nuclear Counsel, Indiana Frequency Control Program. fire protection program. Thus, the Michigan Power Company, One Cook Surveillance frequencies are not an proposed transition of the fire Place, Bridgman, MI 49106. initiator to any accident previously protection licensing basis to NFPA 805 NRC Branch Chief: Robert J. evaluated. As a result, the probability of will not involve any change, increase or Pascarelli. decrease, in the probability of any accident previously evaluated is not previously evaluated accidents. Luminant Generation Company LLC, significantly increased. The systems and Elements or equipment of the CNP Docket Nos. 50–445 and 50–446, components required by the technical fire protection program have no impact Comanche Peak Nuclear Power Plant, specifications for which the surveillance in the evaluation of the consequences of Units 1 and 2, Somervell County, Texas frequencies are relocated are still required to be operable, meet the accidents in the UFSAR; thus, the Date of Amendment Request: August acceptance criteria for the surveillance consequences of the previously 1, 2011, as supplemented by letter dated requirements, and be capable of evaluated accidents will remain the August 17, 2011. same regardless of whether the current performing any mitigation function Brief Description of Amendments: The fire protection licensing basis or NFPA assumed in the accident analysis. As a proposed change requests the adoption 805 is in place. result, the consequences of any accident of an approved change to the Standard Therefore, the proposed licensing previously evaluated are not Technical Specifications (STS) for basis change will not lead to any significantly increased. Westinghouse Plants (NUREG–1431), to change, increase or decrease, of the Therefore, the proposed change does allow relocation of specific technical consequences of previously evaluated not involve a significant increase in the specification (TS) surveillance accidents. probability or consequences of an 2. Does the proposed change create frequencies to a licensee-controlled accident previously evaluated. the possibility of a new or different kind program. The proposed change is 2. Does the proposed change create of accident from any accident described in and consistent with the the possibility of a new or different kind previously evaluated? U.S. Nuclear Regulatory Commission of accident from any previously Response: No. (NRC)-approved Technical Specification evaluated? The proposed change of the fire Task Force (TSTF) Traveler 425–A, Response: No. protection licensing basis to NFPA 805 Revision 3, ‘‘Relocate Surveillance No new or different accidents result pertains only to the fire protection Frequencies to Licensee Control—Risk from utilizing the proposed change. The program and equipment (e.g., modifying Informed Technical Specifications Task changes do not involve a physical fire wrap, modifying control circuitry of Force (RI–TSTF) Initiative 5b’’ alteration of the plant (i.e., no new or certain fire protection systems, changing (Agencywide Documents Access and different type of equipment will be the carbon dioxide system from manual Management System (ADAMS) installed) or a change in the methods actuation to automatic). The proposed Accession No. ML090850642). The governing normal plant operation. In change does not affect structures, Notice of Availability of TSTF–425, addition, the changes do not impose any systems, or components that were Revision 3 was published in the Federal new or different requirements. The involved with previously evaluated Register on July 6, 2009 (74 FR 31996). changes do not alter assumptions made accidents. The proposed change would relocate in the safety analysis. The proposed Therefore, the proposed change does surveillance frequencies to a licensee- changes are consistent with the safety not create the possibility of a new or controlled program termed as the analysis assumptions and current plant different kind of accident from any Surveillance Frequency Control operating practice. previously evaluated. Program (SFCP). This change is Therefore, the proposed changes do 3. Does the proposed change involve applicable to licensees using not create the possibility of a new or a significant reduction in a margin of probabilistic risk guidelines contained different kind of accident from any safety? in NRC-approved Nuclear Energy accident previously evaluated. Response: No. Institute (NEI) 04–10, Revision 1, ‘‘Risk- 3. Does the proposed change involve The proposed change does not alter Informed Technical Specifications a significant reduction in the margin of the manner in which safety limits, Initiative 5b, Risk-Informed Method for safety?

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Response: No. Basis for Proposed No Significant Notice of Consideration of Issuance of The design, operation, testing Hazards Consideration Determination: Amendment to Facility Operating methods, and acceptance criteria for As required by 10 CFR 50.91(a), the License, Proposed No Significant systems, structures, and components licensee has provided its analysis of the Hazards Consideration Determination, (SSCs), specified in applicable codes issue of no significant hazards and Opportunity for A Hearing in and standards (or alternatives approved consideration, which is presented connection with these actions was for use by the NRC) will continue to be below: published in the Federal Register as met as described in the plant licensing 1. Does the proposed amendment indicated. basis (including the Final Safety involve a significant increase in the Unless otherwise indicated, the Analysis Report and Bases to TS), since probability or consequences of an Commission has determined that these these are not affected by changes to the accident previously evaluated? amendments satisfy the criteria for surveillance frequencies. Similarly, Response: No. categorical exclusion in accordance there is no impact to safety analysis The proposed amendment is a title with 10 CFR 51.22. Therefore, pursuant acceptance criteria as described in the change only. There is no reduction in to 10 CFR 51.22(b), no environmental plant licensing basis. To evaluate a commitments in the Physical Security impact statement or environmental change in the relocated surveillance Plan therefore; the proposed assessment need be prepared for these frequency, Luminant Power [Luminant amendment does not involve a amendments. If the Commission has Generation Company LLC] will perform significant increase in the probability or prepared an environmental assessment a probabilistic risk evaluation using the consequences of an accident previously under the special circumstances guidance contained in NRC approved evaluated. provision in 10 CFR 51.22(b) and has NEI 04–10, Rev. 1 in accordance with 2. Does the proposed amendment made a determination based on that the TS SFCP. NEI 04–10, Rev. 1, create the possibility of a new or assessment, it is so indicated. For further details with respect to the methodology provides reasonable different kind of accident from any action see (1) The applications for acceptance guidelines and methods for accident previously evaluated? amendment, (2) the amendment, and (3) evaluating the risk increase of proposed Response: No. the Commission’s related letter, Safety changes to surveillance frequencies The proposed amendment is a title Evaluation and/or Environmental consistent with Regulatory Guide 1.177 change only. There is no reduction in Assessment as indicated. All of these [‘‘An Approach for Plant-Specific, Risk- commitments in the Physical Security items are available for public inspection Informed Decision-making: Technical Plan therefore; the proposed at the NRC’s Public Document Room Specifications,’’ August 1998 (ADAMS amendment does not create the (PDR), located at One White Flint North, Accession No. ML003740176)]. possibility of a new or different kind of Therefore, the proposed changes do Room O1–F21, 11555 Rockville Pike accident from any accident previously not involve a significant reduction in a (first floor), Rockville, Maryland 20852. evaluated. margin of safety. Publicly available documents created or The NRC staff has reviewed the 3. Does the proposed amendment received at the NRC are accessible licensee’s analysis and, based on this involve a significant reduction in a electronically through the Agencywide review, it appears that the three margin of safety? Documents Access and Management standards of 10 CFR 50.92(c) are Response: No. System (ADAMS) in the NRC Library at satisfied. Therefore, the NRC staff The NRC staff has reviewed the http://www.nrc.gov/reading-rm/ proposes to determine that the licensee’s analysis and, based on this adams.html. If you do not have access amendment request involves no review, it appears that the three to ADAMS or if there are problems in significant hazards consideration. standards of 10 CFR 50.92(c) are accessing the documents located in Attorney for Licensee: Timothy P. satisfied. Therefore, the NRC staff ADAMS, contact the PDR Reference Matthews, Esq., Morgan, Lewis and proposes to determine that the staff at 1–800–397–4209, 301–415–4737 Bockius, 1800 M Street, NW., amendment request involves no or by e-mail to [email protected]. Washington, DC 20036. significant hazards consideration. NRC Branch Chief: Michael T. Attorney for Licensee: Joseph Fay, Calvert Cliffs Nuclear Power Plant, LLC, Markley. Yankee Atomic Electric Company, 362 Docket Nos. 50–317 and 50–318, Calvert Injun Hollow Road, East Hampton, Cliffs Nuclear Power Plant, Units 1 and Yankee Atomic Electric Company, Connecticut, 06424–3099. 2, Calvert County, Maryland, Date of Docket No. 50–29, Yankee Nuclear NRC Branch Chief: Michael D. Waters. Application for Amendments: May 11, Power Station, Franklin County, 2011 Massachusetts. Notice of Issuance of Amendments to Facility Operating Licenses Brief Description of Amendments: The Date of Amendment Request: August amendments revise a note to Technical 10, 2011. During the period since publication of Specification (TS) 3.3.1, ‘‘Reactor Description of Amendment Request: the last biweekly notice, the Protective System (RPS) The amendment proposes to revise Commission has issued the following Instrumentation—Operating,’’ to change License Condition C(3) ‘‘Physical amendments. The Commission has the value at which the RPS trip Protection’’. It is proposed to update the determined for each of these function, Steam Generator Pressure— title of the Physical Security Plan, from amendments that the application Low, is bypassed from 785 psig to 785 the ‘‘Yankee Nuclear Power Station complies with the standards and psia. The revision corrects an Defueled Security Plan’’ Revision 0, requirements of the Atomic Energy Act administrative error that occurred dated October 13, 1992, and ‘‘Yankee of 1954, as amended (the Act), and the during Calvert Cliffs’ conversion to the Defueled Security Training and Commission’s rules and regulations. Improved Standard TSs. Qualification Plan’’ Revision 0, dated The Commission has made appropriate Date of Issuance: September 8, 2011. October 13, 1992, to the ‘‘Physical findings as required by the Act and the Effective Date: As of the date of Security Plan for Yankee Rowe Commission’s rules and regulations in issuance to be implemented within 45 Independent Spent Fuel Storage 10 CFR Chapter I, which are set forth in days. Installation.’’ the license amendment. Amendment Nos.: 300 and 277.

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Renewed Facility Operating License Duke Power Company LLC, Docket Nos. Date of Initial Notice in Federal Nos. DPR–53 and DPR–69: Amendments 50–369 and 50–370, McGuire Nuclear Register: December 28, 2010 (75 FR revised the License and Technical Station, Units 1 and 2, Mecklenburg 81669). Specifications. County, North Carolina The Commission’s related evaluation Federal Date of Initial Notice in Date of Application for Amendments: of the amendment is contained in a Register: June 14, 2011 (76 FR 34766). May 28, 2010, as supplemented by Safety Evaluation Dated September 19, The Commission’s related evaluation letters dated November 15, 2010, March 2011. of these amendments is contained in a No Significant Hazards Consideration 23, 2011, and May 2, 2011. Safety Evaluation dated September 8, Comments Received: No. Brief Description of Amendments: The 2011. No Significant Hazards Consideration amendments revised the Technical Entergy Operations, Inc., System Energy Comments Received: No. Specifications to allow manual Resources, Inc., South Mississippi operation of the containment spray Electric Power Association, and Entergy Dominion Energy Kewaunee, Inc. Docket system and to change the setpoints for Mississippi, Inc., Docket No. 50–416, No. 50–305, Kewaunee Power Station, the refueling water storage tank. Grand Gulf Nuclear Station, Unit 1, Kewaunee County, Wisconsin Date of Issuance: September 12, 2011. Claiborne County, Mississippi Date of Application for Amendment: Effective Date: As of the date of Date of Application for Amendment: July 12, 2010, as supplemented by issuance and shall be implemented April 6, 2011. letters dated August 5, 2010, September prior to the first entry into Mode 4 after Brief Description of Amendment: The 23, 2010, November 10, 2010, December the refueling outage where all of the amendment modified the Technical 13, 2010, April 4, 2011, and May 17, modifications associated with the Specifications (TSs) to define a new 2011. amendment have been completed. time limit for restoring inoperable Brief Description of Amendment: The Amendment Nos.: 265/245. reactor coolant system (RCS) leakage amendment approves the Cyber Security Renewed Facility Operating License detection instrumentation to operable Plan (CSP) and associated Nos. NPF–9 and NPF–17: Amendments status; establish alternate methods of implementation schedule, and revises revised the Licenses and the Technical monitoring RCS leakage when one or the license condition regarding physical Specifications. more required monitors are inoperable; protection to reflect such approval. The Date of Initial Notice in Federal and make TS Bases changes which amendment specifies that the licensee Register: October 5, 2010 (75 FR reflect the proposed changes and more fully implement and maintain in effect 61524). The supplements dated accurately reflect the contents of the all provisions of the Commission- November 15, 2010, March 23, 2011, facility design basis related to approved CSP as required by 10 CFR and May 2, 2011, provided additional operability of the RCS leakage detection 73.54. information that clarified the instrumentation. These changes are Date of Issuance: August 31, 2011. application, did not expand the scope of consistent with NRC-approved Revision Effective Date: This license the application as originally noticed, 3 to Technical Specification Task Force amendment is effective as of the date of and did not change the staff’s original (TSTF) Change Traveler TSTF–514, its issuance. The implementation of the proposed no significant hazards ‘‘Revise BWR [Boiling-Water Reactor] CSP, including the key intermediate consideration determination. Operability Requirements and Actions milestone dates and the full The Commission’s related evaluation for RCS Leakage Instrumentation,’’ as implementation date, shall be in of the amendments is contained in a part of the consolidated line item accordance with the implementation Safety Evaluation dated September 12, improvement process. schedule submitted by the licensee on 2011. Date of Issuance: September 12, 2011. April 4, 2011, and approved by the NRC No Significant Hazards Consideration Effective Date: As of the date of staff with this license amendment. All Comments Received: No. issuance and shall be implemented subsequent changes to the NRC- Entergy Nuclear Operations, Inc., within 90 days of issuance. approved CSP implementation schedule Docket No. 50–286, Indian Point Amendment No: 187. will require prior NRC approval Nuclear Generating Unit No. 3, Facility Operating License No. NPF– pursuant to 10 CFR 50.90. Westchester County, New York 29: The amendment revised the Facility Amendment Nos.: 210. Operating License and Technical Facility Operating License No. DPR– Date of application for amendment: Specifications. 43: The amendment revised the October 6, 2010. Date of Initial Notice in Federal Renewed Facility Operating License. Brief description of amendment: The Register: May 3, 2011 (76 FR 24928). Date of Initial Notice in Federal amendment revised the note in The Commission’s related evaluation Register: November 9, 2010 (75 FR Surveillance Requirement 3.5.4.1 for the of the amendment is contained in a 68834). The supplemental letters Refueling Water Storage Tank (RWST) Safety Evaluation dated September 12, contain clarifying information, did not Technical Specification (TS). 2011. change the scope of the license Specifically, the amendment will No Significant Hazards Consideration amendment request, did not change the require monitoring of the RWST Comments Received: No. NRC staff’s initial proposed finding of temperature every 24 hours when the no significant hazards consideration RWST heating steam supply isolation Exelon Generation Company, LLC, determination, and did not expand the valves are not locked closed. Docket No. 50–289, Three Mile Island scope of the original Federal Register Date of Issuance: September 19, 2011. Nuclear Station, Unit 1 (TMI–1), notice. Effective Date: As of the date of Dauphin County, Pennsylvania The Commission’s related evaluation issuance, and shall be implemented Date of Application for Amendment: of the amendment is contained in a within 30 days. September 24, 2010, supplemented by Safety Evaluation dated August 31, Amendment No.: 244. letters dated March 18, 2011, April 21, 2011. Facility Operating License No. DPR– 2011, and May 27, 2011. No Significant Hazards Consideration 64: The amendment revised the License Brief Description of Amendment: The Comments Received: No. and the Technical Specifications. amendment revises Technical

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Specification 3.4.1.2.3, to allow up to PPL Susquehanna, LLC, Docket Nos. 50– revises surveillance requirements two Main Steam Safety Valves (MSSVs) 387 and 50–388, Susquehanna Steam related to testing of the Oscillation per steam generator to be inoperable Electric Station, Units 1 and 2, Luzerne Power Range Monitor. with no required reduction in power County, Pennsylvania Date of Issuance: September 14, 2011. level. It also revises the required Date of Application for Amendments: Effective Date: As of the date of maximum overpower trip setpoints for April 8, 2011. issuance, to be implemented within 90 any additional inoperable MSSVs Brief Description of Amendments: The days. consistent with the plant transient amendments revised and added a new Amendment No.: 190. analysis. The change requires that with Condition C to Technical Specification Facility Operating License No. NPF– less than four MSSVs associated with (TS) 3.4.6, ‘‘RCS [Reactor Coolant 57: The amendment revised the either steam generator operable, the System] Leakage Detection Technical Specifications and the plant would be required to be brought Instrumentation’’ and revise the Facility Operating License. to the hot shutdown condition. associated TS Bases. New Condition C Date of Initial Notice in Federal Date of Issuance: September 14, 2011. is applicable when the primary Register: January 10, 2011 (76 FR Effective Date: Immediately, and shall containment atmosphere gaseous 1466). The letter dated April 28, 2011, be implemented within 60 days. radiation monitor is the only operable provided clarifying information that did Amendment No.: 277. TS-required instrument monitoring RCS not change the initial proposed no Renewed Facility Operating License leakage, i.e., TS-required particulate and significant hazards consideration No. DPR–50: Amendment revised the sump monitors are inoperable. New determination or expand the application license and the technical specifications. Condition C Required Actions require beyond the scope of the original Federal Date of initial Notice in Federal monitoring RCS leakage by obtaining Register notice. Register: November 30, 2010 (75 FR and analyzing grab samples of the The Commission’s related evaluation 74096). primary containment atmosphere every of the amendments is contained in a The supplements dated March 18, 12 hours, monitoring RCS leakage using Safety Evaluation dated September 14, 2011, April 21, 2011, and May 27, 2011, administrative means every 12 hours, 2011. provided additional information that and taking action to restore monitoring No Significant Hazards Consideration clarified the application, did not expand capability using another monitor within Comments Received: No. the scope of the application as originally 7 days. Additionally, minor editorial Virginia Electric and Power Company, noticed, and did not change the NRC revisions are proposed to ensure Docket Nos. 50–338 and 50–339, North staff’s original proposed no significant continuity of the TS format. These Anna Power Station, Units 1 and 2, hazards determination. changes are the result of new Condition Louisa County, Virginia The Commission’s related evaluation C and consist of re-lettering existing of the amendment is contained in a Conditions C and D as Conditions D and Date of application for amendment: Safety Evaluation dated September 14, E, respectively. July 12, 2010, as supplemented by 2011. Date of Issuance: September 8, 2011. letters dated August 5, 2010, September No Significant Hazards Consideration Effective Date: As of the date of 23, 2010, November 10, 2010, December Comments Received: No. issuance to be implemented within 60 13, 2010, April 4, 2011, and May 17, 2011. NextEra Energy Duane Arnold, LLC, days. Amendment Nos.: 256 for Unit 1 and Brief Description of Amendment: The Docket No. 50–331, Duane Arnold amendments approve the cyber security Energy Center, Linn County, Iowa 236 for Unit 2. Facility Operating License Nos. NPF– plan (CSP) and associated Date of Application for Amendment: 14 and NPF–22: The amendments implementation schedule, and revise October 15, 2010. revised the Licenses and Technical the license condition regarding physical Brief Description of Amendment: The Specifications. protection to reflect such approval. The amendment modifies the Duane Arnold Date of initial Notice in Federal amendments specify that the licensee Energy Center Renewed Facility Register: May 31, 2011 (76 FR 31376). fully implement and maintain in effect Operating License No. DPR–49 to The Commission’s related evaluation all provisions of the Commission- remove the parent company guarantee of the amendments is contained in a approved CSP as required by 10 CFR Licensing Condition and apply other Safety Evaluation dated September 8, 73.54. administrative changes to the formatting 2011. Date of Issuance: August 31, 2011. of the affected renewed license pages. No Significant Hazards Consideration Effective Date: These license Date of Issuance: September 8, 2011. Comments Received: No. amendments are effective as of the date Effective Date: As of the date of of issuance. The implementation of the issuance and shall be implemented PSEG Nuclear LLC, Docket No. 50–354, CSP, including the key intermediate within 30 days. Hope Creek Generating Station, Salem milestone dates and the full Amendment No.: 279. County, New Jersey implementation date, shall be in Renewed Facility Operating License Date of Application for Amendment: accordance with the implementation No. DPR–49: The amendment did not September 22, 2010, as supplemented schedule submitted by the licensee on revise the Technical Specifications. by letter dated April 28, 2011. April 4, 2011, and approved by the NRC Date of initial notice in Federal Brief description of Amendments: The staff with this license amendment. All Register: February 22, 2011 (76 FR amendment allows Hope Creek subsequent changes to the NRC- 9825). Generating Station to operate at a approved CSP implementation schedule The Commission’s related evaluation reduced feedwater temperature for will require prior NRC approval of the amendment is contained in a purposes of extending the normal fuel pursuant to 10 CFR 50.90. Safety Evaluation dated September 8, cycle. The amendment also allows Amendment Nos.: 264 (for Unit 1) and 2011. operation with feedwater heaters out-of- 245 (for Unit 2). No Significant Hazards Consideration service at any time during the operating Facility Operating License Nos. NPF– Comments Received: No. cycle. In addition, the amendment 4 and NPF–7: The amendments revised

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the Renewed Facility Operating determination, and did not expand the scheduled to be heard in August 2011. Licenses. scope of the original Federal Register The Board deferred—without objection Date of Initial Notice in Federal notice. by NINA or Staff—hearing this Register: December 7, 2010 (75 FR The Commission’s related evaluation contention in August 2011 because 76047). The supplemental letters of the amendment is contained in a Intervenors’ expert witness was contain clarifying information, did not safety evaluation dated August 31, 2011. unavailable as a result of a medical change the scope of the license No Significant Hazards Consideration emergency. This contention, referred to amendment request, did not change the Comments Received: No. as DEIS–1–G, relates to accounting for NRC staff’s initial proposed finding of Dated at Rockville, Maryland, this 22nd energy efficient building code rules in no significant hazards consideration day of September 2011. the assessment of a need for power. determination, and did not expand the For the Nuclear Regulatory Commission. B. Date, Time, and Location of scope of the original Federal Register Joseph G. Giitter, Evidentiary Hearing notice. Director, Division of Operating Reactor The Commission’s related evaluation Licensing, Office of Nuclear Reactor The Board will conduct this 2 of the amendment is contained in a Regulation. evidentiary hearing beginning at 9:30 safety evaluation dated August 31, 2011. [FR Doc. 2011–25492 Filed 10–3–11; 8:45 am] a.m., Eastern Daylight Time (EDT) on Monday, October 31, 2011, at the No Significant Hazards Consideration BILLING CODE 7590–01–P Comments Received: No. Atomic Safety and Licensing Board Panel Hearing Room, Two White Flint Virginia Electric and Power Company, et North Building, Third Floor, Room T– al., Docket Nos. 50–280 and 50–281, NUCLEAR REGULATORY COMMISSION 3B45, 11545 Rockville Pike, Rockville, Surry Power Station, Units 1 and 2, Maryland. The hearing will continue Surry County, Virginia [Docket Nos. 52–12–COL and 52–13–COL; day-to-day until concluded. Date of Application for Amendment: ASLBP No. 09–885–08–COL–BD01] Any members of the public who plan to attend the evidentiary hearing are July 12, 2010, as supplemented by Atomic Safety and Licensing Board; In advised that security measures will be letters dated August 5, 2010, September the Matter of Nuclear Innovation North employed at the entrance to the facility, 23, 2010, November 10, 2010, December America LLC (South Texas Project including searches of hand-carried 13, 2010, April 4, 2011, and May 17, Units 3 and 4); Evidentiary Hearing to items such as briefcases or backpacks. 2011. Receive Testimony and Exhibits Brief Description of Amendment: The Regarding the Application C. Submitting Written Limited amendments approve the cyber security Appearance Statements plan (CSP) and associated September 28, 2011. implementation schedule, and revises As provided in 10 CFR 2.315(a), any Before Administrative Judges: Michael the license condition regarding physical person (other than a party or the M. Gibson, Chairman, Gary S. Arnold, protection to reflect such approval. The representative of a party to this Dr. Randall J. Charbeneau. amendments specify that the licensee proceeding) may submit a written fully implement and maintain in effect Notice statement setting forth his or her position on matters of concern relating all provisions of the Commission- (Notice of Hearing and Opportunity to approved CSP as required by 10 CFR to this proceeding. Although these Submit Written Limited Appearance statements do not constitute testimony 73.54. Statements) Date of Issuance: August 31, 2011. or evidence, they nonetheless may help Effective Date: These license On October 31, 2011, the Atomic the Board or the parties in their amendments are effective as of the date Safety and Licensing Board will consideration of the issues in this of issuance. The implementation of the convene an evidentiary hearing to proceeding. CSP, including the key intermediate receive testimony and exhibits regarding A written limited appearance milestone dates and the full the application of Nuclear Innovation statement may be submitted at any time implementation date, shall be in North America LLC (NINA) for and should be sent to the Office of the accordance with the implementation combined licenses for the construction Secretary using one of the methods schedule submitted by the licensee on and operation of two new nuclear prescribed below: April 4, 2011, and approved by the NRC reactor units on an existing site near Bay Mail: Office of the Secretary, staff with this license amendment. All City, Texas. In addition, in accordance Rulemakings and Adjudications Staff, subsequent changes to the NRC- with 10 CFR 2.315(a), the Board will U.S. Nuclear Regulatory Commission, approved CSP implementation schedule entertain written limited appearance Washington, DC 20555–0001. Fax: (301) 415–1101 (verification will require prior NRC approval statements from members of the public in connection with this proceeding. (301) 415–1966). pursuant to 10 CFR 50.90. E-mail: [email protected]. Amendment Nos.: 276 (for Unit 1) and Finally, the Board gives notice that it may hold oral argument on a new In addition, using the same method of 276 (for Unit 2) service, a copy of the written limited Facility Operating License Nos. DPR– contention proposed by Intervenors 1 appearance statement should be sent to 32 and DPR–37: The amendments related to the Fukushima Dai-ichi the Chairman of this Licensing Board as revised the Renewed Facility Operating accident. follows: License. A. Matters to be Considered at Mail: Administrative Judge Michael Date of initial notice in Federal Evidentiary Hearing M. Gibson, Atomic Safety and Licensing Register: December 7, 2010 (75 FR Board Panel, Mail Stop T–3 F23, U.S. 76047). The supplemental letters This evidentiary hearing will consider Nuclear Regulatory Commission, contain clarifying information did not an environmental contention originally Washington, DC 20555–0001. change the scope of the license 1 Intervenors are the Sustainable Energy and amendment request, did not change the Economic Development Coalition, the South Texas 2 NINA, NRC Staff, and Intervenors will be parties NRC staff’s initial proposed finding of Association for Responsible Energy, and Public to the hearing and will present witnesses and no significant hazards consideration Citizen. evidentiary material.

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Fax: (301) 415–5599 (verification availability of and requesting comment should not include any information in (301) 415–7332). on draft NUREG–1614, Volume 5. ‘‘U.S. their comments that they do not want E-mail: [email protected] and Nuclear Regulatory Commission, FY publicly disclosed. [email protected]. 2012–2016 Strategic Plan,’’ dated You can access publicly available D. Notice of Oral Argument September 2011. The NRC’s draft FY documents related to this document 2012–2016 strategic plan describes the using the following methods: The Board may hold oral argument on agency’s mission and strategic objective, • NRC’s Public Document Room Intervenors’ newly proffered which remain unchanged. The NRC’s (PDR): The public may examine and Fukushima-related contention priority continues to be ensuring the have copied, for a fee, publicly available immediately after the conclusion of the adequate protection of public health and documents at the NRC’s PDR, O1–F21, evidentiary hearing. As with hearing safety, and promoting the common One White Flint North, 11555 Rockville attendance, members of the public are defense and security. Pike, Rockville, Maryland 20852. welcome to attend oral argument, • DATES: Submit comments on the draft NRC’s Agencywide Documents subject to facility security protocol. strategic plan by November 2, 2011. Access and Management System E. Availability of Documentary Comments received after the above date (ADAMS): Publicly available documents Information Regarding the Proceeding will be considered if it is practical to do created or received at the NRC are available online in the NRC Library at NINA’s application and various Staff so, but the NRC is able to assure http://www.nrc.gov/reading-rm/ documents relating to the application consideration only for comments adams.html. From this page, the public are available on the NRC Web site at received on or before this date. can gain entry into ADAMS, which http://www.nrc.gov/reactors/new- ADDRESSES: Please include Docket ID provides text and image files of the reactors/col/south-texas-project.html. NRC–2011–0233 in the subject line of NRC’s public documents. If you do not These and other documents relating to your comments. For additional have access to ADAMS or if there are this proceeding are available for public instructions on submitting comments problems in accessing the documents inspection at the Commission’s Public and instructions on accessing located in ADAMS, contact the NRC’s Document Room, located at One White documents related to this action, see PDR reference staff at 1–800–397–4209, Flint North, 11555 Rockville Pike (first ‘‘Submitting Comments and Accessing 301–415–4737, or by e-mail to floor), Rockville, MD 20852, or Information’’ in the SUPPLEMENTARY [email protected]. The draft electronically from the publicly INFORMATION section of this document. strategic plan is available electronically available records component of NRC’s You may submit comments by any one under ADAMS Accession No. document system (ADAMS). ADAMS is of the following methods: ML11270A135. accessible from the NRC Web site at • Federal Rulemaking Web Site: Go to • Federal Rulemaking Web Site: http://www.nrc.gov/reading-rm/ http://www.regulations.gov and search Public comments and supporting adams.html (the Public Electronic for documents filed under Docket ID materials related to this notice can be Reading Room). Persons who do not NRC–2011–0233. Address questions found at http://www.regulations.gov by have access to ADAMS or who about NRC dockets to Carol Gallagher, searching on Docket ID NRC–2011– encounter problems in accessing the telephone: 301–492–3668; e-mail: 0233. Some publications in the NUREG documents located in ADAMS should [email protected]. series that are posted at NRC’s Web site contact the NRC Public Document Room • Mail comments to: Cindy Bladey, address http://www.nrc.gov/reading-rm/ reference staff by telephone at (800) Chief, Rules, Announcements, and doc-collections are updated regularly 397–4209 or (301) 415–4737 (available Directives Branch (RADB), Office of and may differ from the last printed between 8 a.m. and 4 p.m., Eastern Time Administration, Mail Stop: TWB–05– version. (E.T.), Monday through Friday except B01M, U.S. Nuclear Regulatory federal holidays), or by e-mail to Commission, Washington, DC 20555– FOR FURTHER INFORMATION CONTACT: [email protected]. 0001. James E. Coyle, Planning and It is so ordered. • Fax comments to: RADB at 301– Performance Management Branch, September 28, 2011. 492–3446. Division of Planning and Budget, Office For the Atomic Safety and Licensing SUPPLEMENTARY INFORMATION: of the Chief Financial Officer, U.S. Nuclear Regulatory Commission, Board. Submitting Comments and Accessing Washington, DC 20555–0001; telephone: Michael M. Gibson, Information Administrative Judge. 301–415–6087, e-mail: Comments submitted in writing or in [email protected]. [FR Doc. 2011–25488 Filed 10–3–11; 8:45 am] electronic form will be posted on the BILLING CODE 7590–01–P NRC Web site and on the Federal Background rulemaking Web site, http:// The Government Performance and Results Act Modernization Act of 2010 NUCLEAR REGULATORY www.regulations.gov. Because your (GRPAMA) requires that an agency’s COMMISSION comments will not be edited to remove any identifying or contact information, strategic plan be updated for submission [NRC–2011–0233] the NRC cautions you against including to the Congress and the President every any information in your submission that four years. The NRC is developing a Draft Nuclear Regulatory Commission you do not want to be publicly new strategic plan for FY 2012–2016 to Fiscal Year 2012–2016 Strategic Plan disclosed. replace the agency’s existing strategic AGENCY: Nuclear Regulatory The NRC requests that any party plan. Commission. soliciting or aggregating comments The NRC’s draft FY 2012–2016 ACTION: Draft NUREG; request for received from other persons for strategic plan describes the agency’s comment. submission to the NRC inform those mission and strategic objective, which persons that the NRC will not edit their remain unchanged. The NRC’s priority SUMMARY: The U.S. Nuclear Regulatory comments to remove any identifying or continues to be ensuring the adequate Commission (NRC) is announcing the contact information, and therefore, they protection of public health and safety,

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and promoting the common defense and STATUS: Public and Closed. Week of October 31, 2011—Tentative security. The draft strategic plan reflects the Week of October 3, 2011 Tuesday, November 1, 2011 agency’s Safety and Security goals, and Thursday, October 6, 2011 9 a.m. Briefing on the Fuel Cycle their associated strategic outcomes. The Oversight Program (Public goals continue to accurately describe the 9 a.m. Briefing on NRC International Meeting). (Contact: Margie Kotzalas, agency’s core functions and therefore Activities (Public Meeting). 301–492–3550.) remain essentially unchanged. This (Contact: Karen Henderson, 301– This meeting will be webcast live at focus on Safety and Security ensures 415–0202.) the Web address—http://www.nrc.gov. that the NRC remains a strong, This meeting will be webcast live at Week of November 7, 2011—Tentative independent, stable, and effective the Web address—http://www.nrc.gov. regulator. There are no meetings scheduled for The draft strategic plan addresses the Week of October 10, 2011—Tentative the week of November 7, 2011. challenges the NRC will face due to Tuesday, October 11, 2011 * The schedule for Commission changes in the regulatory environment. meetings is subject to change on short This includes the review of applications 9 a.m. Briefing on the Japan Near Term notice. To verify the status of meetings, to construct and operate new nuclear Task Force Report—Prioritization of call (recording)—(301) 415–1292. power plants including small modular Recommendations (Public Meeting). Contact person for more information: reactors, while continuing to ensure the (Contact: Rob Taylor, 301–415– Rochelle Bavol, (301) 415–1651. safe and secure operation of the existing 3172.) The NRC Commission Meeting licensed facilities, as well as addressing This meeting will be webcast live at Schedule can be found on the Internet any national policy decisions related to the Web address—http://www.nrc.gov. at: http://www.nrc.gov/public-involve/ the management of radioactive waste. public-meetings/schedule.html. The draft Strategic Plan also describes Wednesday, October 12, 2011 The NRC provides reasonable the agency’s Organizational Excellence 9 a.m. Mandatory Hearing—South accommodation to individuals with Objectives of Openness, Regulatory Carolina Electric & Gas Company disabilities where appropriate. If you Effectiveness, and Operational and South Carolina Public Service need a reasonable accommodation to Excellence, which characterize the Authority (Also Referred to as participate in these public meetings, or manner in which the agency intends to Santee Cooper); Combined Licenses need this meeting notice or the achieve its mission. The NRC for Virgil C. Summer Nuclear transcript or other information from the encourages all interested parties to Station, Units 2 and 3 (Public public meetings in another format (e.g., comment on the draft strategic plan. Meeting). (Contact: Rochelle Bavol, braille, large print), please notify Bill The draft strategic plan establishes the 301–415–1651.) Dosch, Chief, Work Life and Benefits agency’s long-term strategic direction Branch, at 301–415–6200, TDD: 301– and outcomes. It provides a foundation This meeting will be webcast live at 415–2100, or by e-mail at to guide the NRC’s work and to allocate the Web address—http://www.nrc.gov. [email protected]. Determinations the NRC’s resources. Thursday, October 13, 2011 on requests for reasonable Stakeholder feedback will be valuable accommodation will be made on a case- in helping the Commission develop a 9 a.m. Continued from Previous Day— by-case basis. final plan that has the benefit of the Mandatory Hearing—South Carolina This notice is distributed many views in the regulated civilian Electric & Gas Company and South electronically to subscribers. If you no nuclear industry. Carolina Public Service Authority longer wish to receive it, or would like The final version of NUREG–1614, (Also Referred to as Santee Cooper); to be added to the distribution, please Volume 5, is expected to be released in Combined Licenses for Virgil C. contact the Office of the Secretary, the spring of 2012. Summer Nuclear Station, Units 2 Washington, DC 20555 (301–415–1969), Dated at Rockville, Maryland, this 28 day and 3 (Public Meeting). (Contact: or send an e-mail to of September 2011. Rochelle Bavol, 301–415–1651.) [email protected]. For the Nuclear Regulatory Commission. This meeting will be webcast live at Dated: September 29, 2011. Jennifer Golder, the Web address—http://www.nrc.gov. Rochelle Bavol, Director, Division of Planning and Budget, Policy Coordinator, Office of the Secretary. Office of the Chief Financial Officer. Week of October 17, 2011—Tentative [FR Doc. 2011–25683 Filed 9–30–11; 4:15 pm] [FR Doc. 2011–25491 Filed 10–3–11; 8:45 am] Tuesday, October 18, 2011 BILLING CODE 7590–01–P BILLING CODE 7590–01–P 9 a.m. Briefing on Browns Ferry Unit 1 (Public Meeting). (Contact: NUCLEAR REGULATORY Eugene Guthrie, 404–997–4662.) POSTAL REGULATORY COMMISSION COMMISSION This meeting will be webcast live at [Docket No. A2011–86; Order No. 878] the Web address—http://www.nrc.gov. [NRC–2011–0006]. Post Office Closing Thursday, October 20, 2011 Sunshine Federal Register Notice AGENCY: Postal Regulatory Commission. 1:30 p.m. NRC All Employees Meeting ACTION: Notice. AGENCY HOLDING THE MEETINGS: Nuclear (Public Meeting), Marriott Bethesda Regulatory Commission; North Hotel, 5701 Marinelli Road, SUMMARY: This document informs the DATE: Weeks of October 3, 10, 17, 24, 31, Rockville, MD 20852. public that an appeal of the closing of November 7, 2011. Week of October 24, 2011—Tentative the Redfield, New York post office has PLACE: Commissioners’ Conference been filed. It identifies preliminary Room, 11555 Rockville Pike, Rockville, There are no meetings scheduled for steps and provides a procedural Maryland. the week of October 24, 2011. schedule. Publication of this document

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will allow the Postal Service, regular postal services to the community by contacting the Commission’s docket petitioners, and others to take (see 39 U.S.C. 404(d)(2)(A)(iii)). section at [email protected] or via appropriate action. After the Postal Service files the telephone at 202–789–6846. administrative record and the DATES: Administrative record due (from The Commission reserves the right to Commission reviews it, the Commission Postal Service): October 11, 2011; redact personal information which may may find that there are more legal issues deadline for notices to intervene: infringe on an individual’s privacy than those set forth above, or that the rights from documents filed in this October 21, 2011. See the Procedural Postal Service’s determination disposes Schedule in the SUPPLEMENTARY proceeding. of one or more of those issues. The Intervention. Persons, other than INFORMATION section for other dates of deadline for the Postal Service to file the interest. Petitioners and respondent, wishing to applicable administrative record with be heard in this matter are directed to ADDRESSES: Submit comments the Commission is October 11, 2011. file a notice of intervention. See 39 CFR electronically by accessing the ‘‘Filing See 39 CFR 3001.113. In addition, the 3001.111(b). Notices of intervention in Online’’ link in the banner at the top of due date for any responsive pleading by this case are to be filed on or before the Commission’s Web site (http:// the Postal Service to this notice is October 24, 2011. A notice of www.prc.gov) or by directly accessing October 11, 2011. intervention shall be filed using the the Commission’s Filing Online system Application for Suspension of Internet (Filing Online) at the at https://www.prc.gov/prc-pages/filing- Determination. In addition to their Commission’s Web site unless a waiver online/login.aspx. Commenters who Petition, the Petitioners filed an is obtained for hardcopy filing. See 39 cannot submit their views electronically application for suspension of the Postal CFR 3001.9(a) and 3001.10(a). Service’s determination (see 39 CFR should contact the person identified in Further procedures. By statute, the 3001.114). Commission rules allow for the FOR FURTHER INFORMATION CONTACT Commission is required to issue its the Postal Service to file an answer to section as the source for case-related decision within 120 days from the date such application within 10 days after information for advice on alternatives to it receives the appeal. See 39 U.S.C. electronic filing. the application is filed. The Postal Service shall file an answer to the 404(d)(5). A procedural schedule has FOR FURTHER INFORMATION CONTACT: application no later than October 3, been developed to accommodate this Stephen L. Sharfman, General Counsel, 2011. statutory deadline. In the interest of at 202–789–6820 (case-related Availability; Web site posting. The expedition, in light of the 120-day information) or [email protected] Commission has posted the appeal and decision schedule, the Commission may (electronic filing assistance). supporting material on its Web site at request the Postal Service or other http://www.prc.gov. Additional filings participants to submit information or SUPPLEMENTARY INFORMATION: Notice is memoranda of law on any appropriate hereby given that, pursuant to 39 U.S.C. in this case and participants’ submissions also will be posted on the issue. As required by the Commission 404(d), on September 23, 2011, the rules, if any motions are filed, responses Commission received a petition for Commission’s Web site, if provided in electronic format or amenable to are due 7 days after any such motion is review and application for suspension filed. See 39 CFR 3001.21. of the Postal Service’s determination to conversion, and not subject to a valid protective order. Information on how to It is ordered: close the Redfield post office in 1. The Postal Service shall file an Redfield, New York. The petition was use the Commission’s Web site is available online or by contacting the answer to the application for suspension filed by the Redfield Citizens of the Postal Service’s determination no Committee, Kathleen M. Gallo, Martha Commission’s webmaster via telephone at 202–789–6873 or via electronic mail later than October 3, 2011. A. Harvey and Tanya M. Yerdon at [email protected]. 2. The Postal Service shall file the (Petitioners) and is postmarked The appeal and all related documents applicable administrative record September 20, 2011. The Commission are also available for public inspection regarding this appeal no later than hereby institutes a proceeding under 39 in the Commission’s docket section. October 11, 2011. U.S.C. 404(d)(5) and establishes Docket Docket section hours are 8 a.m. to 4:30 3. Any responsive pleading by the No. A2011–86 to consider Petitioners’ p.m., eastern time, Monday through Postal Service to this notice is due no appeal. If Petitioners would like to Friday, except on Federal government later than October 11, 2011. further explain their position with holidays. Docket section personnel may supplemental information or facts, 4. The procedural schedule listed be contacted via electronic mail at prc- below is hereby adopted. Petitioners may either file a Participant [email protected] or via telephone at Statement on PRC Form 61 or file a brief 5. Pursuant to 39 U.S.C. 505, James F. 202–789–6846. Callow is designated officer of the with the Commission no later than Filing of documents. All filings of October 28, 2011. Commission (Public Representative) to documents in this case shall be made represent the interests of the general Category of issues apparently raised. using the Internet (Filing Online) public. Petitioners contend that: (1) The Postal pursuant to Commission rules 9(a) and 6. The Secretary shall arrange for Service failed to consider the effect of 10(a) at the Commission’s Web site, publication of this notice and order in the closing on the community (see 39 http://www.prc.gov, unless a waiver is the Federal Register. U.S.C. 404(d)(2)(A)(i)); and (2) the Postal obtained. See 39 CFR 3001.9(a) and Service failed to consider whether or 3001.10(a). Instructions for obtaining an By the Commission. not it will continue to provide a account to file documents online may be Shoshana M. Grove, maximum degree of effective and found on the Commission’s Web site or Secretary.

PROCEDURAL SCHEDULE

September 23, 2011 ...... Filing of Appeal. October 3, 2011 ...... Deadline for the Postal Service to file an answer responding to application for suspension. October 11, 2011 ...... Deadline for the Postal Service to file the applicable administrative record in this appeal.

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PROCEDURAL SCHEDULE—Continued October 11, 2011 ...... Deadline for the Postal Service to file any responsive pleading. October 24, 2011 ...... Deadline for notices to intervene (see 39 CFR 3001.111(b)). October 28, 2011 ...... Deadline for Petitioners’ Form 61 or initial brief in support of petition (see 39 CFR 3001.115(a) and (b)). November 17, 2011 ...... Deadline for answering brief in support of the Postal Service (see 39 CFR 3001.115(c)). December 2, 2011 ...... Deadline for reply briefs in response to answering briefs (see 39 CFR 3001.115(d)). December 9, 2011 ...... Deadline for motions by any party requesting oral argument; the Commission will schedule oral argument only when it is a necessary addition to the written filings (see 39 CFR 3001.116). January 12, 2012 ...... Expiration of the Commission’s 120-day decisional schedule (see 39 U.S.C. 404(d)(5)).

[FR Doc. 2011–25486 Filed 10–3–11; 8:45 am] Commission hereby institutes a using the Internet (Filing Online) BILLING CODE 7710–FW–P proceeding under 39 U.S.C. 404(d)(5) pursuant to Commission rules 9(a) and and establishes Docket No. A2011–87 to 10(a) at the Commission’s Web site, consider Petitioner’s appeal. If http://www.prc.gov, unless a waiver is POSTAL REGULATORY COMMISSION Petitioner would like to further explain obtained. See 39 CFR 3001.9(a) and [Docket No. A2011–87; Order No. 879] her position with supplemental 3001.10(a). Instructions for obtaining an information or facts, Petitioner may account to file documents online may be Post Office Closing either file a Participant Statement on found on the Commission’s Web site or PRC Form 61 or file a brief with the by contacting the Commission’s docket AGENCY: Postal Regulatory Commission. Commission no later than October 28, section at [email protected] or via ACTION: Notice. 2011. telephone at 202–789–6846. SUMMARY: This document informs the Category of issues apparently raised. The Commission reserves the right to public that an appeal of the closing of Petitioner contends that the Postal redact personal information which may the Pomfret Center, Connecticut post Service failed to consider the effect of infringe on an individual’s privacy office has been filed. It identifies the closing on the community. See 39 rights from documents filed in this preliminary steps and provides a U.S.C. 404(d)(2)(A)(i). proceeding. procedural schedule. Publication of this After the Postal Service files the Intervention. Persons, other than document will allow the Postal Service, administrative record and the Petitioner and respondent, wishing to be petitioners, and others to take Commission reviews it, the Commission heard in this matter are directed to file appropriate action. may find that there are more legal issues a notice of intervention. See 39 CFR than the one set forth above, or that the 3001.111(b). Notices of intervention in DATES: Administrative record due (from Postal Service’s determination disposes this case are to be filed on or before Postal Service): October 11, 2011; deadline for notices to intervene: of one or more of those issues. The October 24, 2011. A notice of October 24, 2011. See the Procedural deadline for the Postal Service to file the intervention shall be filed using the applicable administrative record with Internet (Filing Online) at the Schedule in the SUPPLEMENTARY the Commission is October 11, 2011. Commission’s Web site unless a waiver INFORMATION section for other dates of interest. See 39 CFR 3001.113. In addition, the is obtained for hardcopy filing. See 39 due date for any responsive pleading by CFR 3001.9(a) and 3001.10(a). ADDRESSES: Submit comments the Postal Service to this notice is Further procedures. By statute, the electronically by accessing the ‘‘Filing October 11, 2011. Commission is required to issue its Online’’ link in the banner at the top of Availability; Web site posting. The decision within 120 days from the date the Commission’s Web site (http:// Commission has posted the appeal and it receives the appeal. See 39 U.S.C. www.prc.gov) or by directly accessing supporting material on its Web site at 404(d)(5). A procedural schedule has the Commission’s Filing Online system http://www.prc.gov. Additional filings been developed to accommodate this at https://www.prc.gov/prc-pages/filing- in this case and participants’ statutory deadline. In the interest of online/login.aspx. Commenters who submissions also will be posted on the expedition, in light of the 120-day cannot submit their views electronically Commission’s Web site, if provided in decision schedule, the Commission may should contact the person identified in electronic format or amenable to request the Postal Service or other the FOR FURTHER INFORMATION CONTACT conversion, and not subject to a valid participants to submit information or section as the source for case-related protective order. Information on how to memoranda of law on any appropriate information for advice on alternatives to use the Commission’s Web site is issue. As required by the Commission electronic filing. available online or by contacting the rules, if any motions are filed, responses FOR FURTHER INFORMATION CONTACT: Commission’s webmaster via telephone are due 7 days after any such motion is Stephen L. Sharfman, General Counsel, at 202–789–6873 or via electronic mail filed. See 39 CFR 3001.21. at 202–789–6820 (case-related at [email protected]. It is ordered: information) or [email protected] The appeal and all related documents 1. The Postal Service shall file the (electronic filing assistance). are also available for public inspection applicable administrative record SUPPLEMENTARY INFORMATION: Notice is in the Commission’s docket section. regarding this appeal no later than hereby given that, pursuant to 39 U.S.C. Docket section hours are 8 a.m. to 4:30 October 11, 2011. 404(d), on September 23, 2011, the p.m., eastern time, Monday through 2. Any responsive pleading by the Commission received a petition for Friday, except on Federal government Postal Service to this notice is due no review of the Postal Service’s holidays. Docket section personnel may later than October 11, 2011. determination to close the Pomfret be contacted via electronic mail at prc- 3. The procedural schedule listed Center post office in Pomfret Center, [email protected] or via telephone at below is hereby adopted. Connecticut. The petition was filed by 202–789–6846. 4. Pursuant to 39 U.S.C. 505, Derrick Tima Smith (Petitioner) and is Filing of documents. All filings of D. Dennis is designated officer of the postmarked September 9, 2011. The documents in this case shall be made Commission (Public Representative) to

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represent the interests of the general 5. The Secretary shall arrange for By the Commission. public. publication of this notice and order in Shoshana M. Grove, the Federal Register. Secretary.

PROCEDURAL SCHEDULE

September 23, 2011 ...... Filing of Appeal. October 11, 2011 ...... Deadline for the Postal Service to file the applicable administrative record in this appeal. October 11, 2011 ...... Deadline for the Postal Service to file any responsive pleading. October 24, 2011 ...... Deadline for notices to intervene (see 39 CFR 3001.111(b)). October 28, 2011 ...... Deadline for Petitioners’ Form 61 or initial brief in support of petition (see 39 CFR 3001.115(a) and (b)). November 17, 2011 ...... Deadline for answering brief in support of the Postal Service (see 39 CFR 3001.115(c)). December 2, 2011 ...... Deadline for reply briefs in response to answering briefs (see 39 CFR 3001.115(d)). December 9, 2011 ...... Deadline for motions by any party requesting oral argument; the Commission will schedule oral argument only when it is a necessary addition to the written filings (see 39 CFR 3001.116). January 9, 2012 ...... Expiration of the Commission’s 120-day decisional schedule (see 39 U.S.C. 404(d)(5)).

[FR Doc. 2011–25503 Filed 10–3–11; 8:45 am] is hereby given that a public meeting of Sunshine Act, Public Law 94–409, that BILLING CODE 7710–FW–P the Presidio Trust Board of Directors the Securities and Exchange will be held commencing 6:30 p.m. on Commission will hold a Closed Meeting Wednesday, October 19, 2011, at the on Thursday, October 6, 2011 at 9:30 POSTAL SERVICE Golden Gate Club, 135 Fisher Loop, a.m. Presidio of San Francisco, California. Commissioners, Counsel to the Board of Governors; Sunshine Act The Presidio Trust was created by Commissioners, the Secretary to the Meeting Congress in 1996 to manage Commission, and recording secretaries approximately eighty percent of the will attend the Closed Meeting. Certain DATE AND TIME: Tuesday, October 18, former U.S. Army base known as the staff members who have an interest in 2011, at 10 a.m. Presidio, in San Francisco, California. the matters also may be present. The purposes of this meeting are to PLACE: Washington, DC, at U.S. Postal The General Counsel of the take action on the minutes of a previous Service Headquarters, 475 L’Enfant Commission, or his designee, has Plaza, SW. Board meeting, to provide the Chairperson’s report, to provide the certified that, in his opinion, one or STATUS: Closed. Executive Director’s report, to take more of the exemptions set forth in 5 MATTERS TO BE CONSIDERED: action on the Archaeological Collections U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) Policy, to provide project updates, and and 17 CFR 200.402(a)(3), (5), (7), 9(ii) Tuesday, October 18, at 10 a.m. and (10), permit consideration of the (Closed) to receive public comment on other matters in accordance with the Trust’s scheduled matters at the Closed 1. Strategic Issues. Public Outreach Policy. Meeting. 2. Financial Matters. Individuals requiring special Commissioner Paredes, as duty 3. Pricing. accommodation at this meeting, such as officer, voted to consider the items 4. Personnel Matters and needing a sign language interpreter, listed for the Closed Meeting in a closed Compensation Issues. should contact Mollie Matull at session. 5. Governors’ Executive Session— 415.561.5300 prior to October 12, 2011. The subject matter of the Closed Discussion of prior agenda items and Time: The meeting will begin at 6:30 Meeting scheduled for Thursday, Board Governance. p.m. on Wednesday, October 19, 2011. October 6, 2011 will be: CONTACT PERSON FOR MORE INFORMATION: ADDRESSES: The meeting will be held at Institution and settlement of injunctive Julie S. Moore, Secretary of the Board, the Golden Gate Club, 135 Fisher Loop, actions; U.S. Postal Service, 475 L’Enfant Plaza, Presidio of San Francisco. SW., Washington, DC 20260–1000. Institution and settlement of FOR FURTHER INFORMATION CONTACT: administrative proceedings; and Telephone (202) 268–4800. Karen Cook, General Counsel, the Presidio Trust, 34 Graham Street, P.O. Other matters relating to enforcement Julie S. Moore, proceedings. Secretary. Box 29052, San Francisco, California 94129–0052, Telephone: 415–561–5300. At times, changes in Commission [FR Doc. 2011–25622 Filed 9–30–11; 11:15 am] priorities require alterations in the BILLING CODE 7710–12–P Dated: September 28, 2011. Karen A. Cook, scheduling of meeting items. General Counsel. For further information and to ascertain what, if any, matters have been PRESIDIO TRUST [FR Doc. 2011–25487 Filed 10–3–11; 8:45 am] added, deleted or postponed, please BILLING CODE 4310–4R–P Notice of Public Meeting contact: The Office of the Secretary at (202) AGENCY: The Presidio Trust. SECURITIES AND EXCHANGE 551–5400. ACTION: Notice of Public Meeting. COMMISSION Dated: September 29, 2011. SUMMARY: Elizabeth M. Murphy, In accordance with § 103(c)(6) Sunshine Act Meeting of the Presidio Trust Act, 16 U.S.C. Secretary. 460bb appendix, and in accordance Notice is hereby given, pursuant to [FR Doc. 2011–25659 Filed 9–30–11; 11:15 am] with the Presidio Trust’s bylaws, notice the provisions of the Government in the BILLING CODE 8011–01–P

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SECURITIES AND EXCHANGE the Board’s fiscal years commencing municipal securities dealer, or COMMISSION October 1, 2012 and ending September municipal advisor, and that the 30, 2014, which would provide that individual has no relationship with any [Release No. 34–65424, File No. SR–MSRB– 2011–11] Board members who were elected prior such entity, whether compensatory or to July 2011 and whose terms end on or otherwise, that reasonably could affect Self-Regulatory Organizations; after September 30, 2012 may be the independent judgment or decision Municipal Securities Rulemaking considered for term extensions not making of the individual. The rule Board; Order Granting Approval of exceeding two years, in order to further provided that the Board, or by Amendments to Rule A–3, on facilitate the transition to three delegation, its Nominating and Membership on the Board staggered classes of seven Board Governance Committee, could also members per class. The transitional determine that additional circumstances September 28, 2011. provision would further provide that involving the individual could I. Introduction Board members would be nominated for constitute a material business term extensions by a Special relationship with an MSRB regulated On August 11, 2011, the Municipal Nominating Committee formed pursuant entity. Securities Rulemaking Board (‘‘MSRB’’ to Rule A–6, on committees of the In finding that the proposed rule or ‘‘Board’’), filed with the Securities Board, and that the Board would then change was reasonable and consistent and Exchange Commission vote on each proposed term extension. with the requirements of the Exchange (‘‘Commission’’), pursuant to Section The selection of Board members whose Act, in that it provided for fair 19(b)(1) of the Securities Exchange Act terms would be extended would be representation of public representatives of 1934 (‘‘Exchange Act’’),1 and Rule consistent with ensuring that the Board and MSRB regulated entities, the 19b–4 thereunder,2 a proposed rule is in compliance with the composition Commission noted that the MSRB had change consisting of amendments to requirements of revised Section (a) of committed to monitor the effectiveness Rule A–3, on membership on the Board, Rule A–3 during such extension of the structure of the Board to in order to establish a permanent Board periods. determine to what extent, if any, structure of 21 Board members divided In an order approving changes to proposed changes might be appropriate. into three classes, each class being MSRB Rule A–3 to comply with the Additionally, in its response to comprised of seven members who provisions of the Dodd-Frank Wall comment letters to the transitional rule would serve three year terms. The Street Reform and Consumer Protection proposal, the MSRB suggested that, at proposed rule change was published for Act 5 (the ‘‘Dodd-Frank Act’’) requiring the end of the transitional period, the comment in the Federal Register on the Board to have a majority of MSRB would be in a better position to August 23, 2011.3 The Commission independent public members and make long-term decisions regarding received three comment letters municipal advisor representation,6 the representation, size and related matters. regarding the proposed rule change and Commission approved a transitional While the transitional period has not yet the MSRB’s response to these comment provision of the rule that increased the concluded, the Board believes it is now letters.4 Board from 15 to 21 members, 11 of in a position to establish a permanent This order approves the proposed rule structure. A more complete description change. whom would be independent public members and 10 of whom would be of the proposal is provided in the II. Background and Description of members representing regulated entities. Commission’s Notice. Proposal Of the public members, at least one III. Discussion of Comments and The purpose of the proposed rule would be representative of municipal MSRB’s Response change is to make changes to MSRB entities, at least one would be The Commission received three Rule A–3 as are necessary and representative of institutional or retail comment letters and a response from the investors, and at least one would be a appropriate to establish a permanent MSRB to the comment letters.7 The member of the public with knowledge of Board structure of 21 Board members comment letters and the MSRB’s or experience in the municipal industry. divided into three classes, each class responses are discussed in greater detail Of the regulated members, at least one being comprised of seven members who below. would serve three year terms. The terms would be representative of broker- would be staggered and, each year, one dealers, at least one would be A. Comments Regarding Board Size class would be nominated and elected representative of bank dealers, and at SIFMA opposed a permanent Board of to the Board of Directors. least one, but not less than 30 percent 21 members. SIFMA stated that such a Rule A–3 would include a transitional of the regulated members, would be Board is too big, would result in provision, Rule A–3(h), applicable for representative of municipal advisors problems filling the ‘‘public’’ seats with that are not associated with broker- qualified members, and would impose 1 15 U.S.C. 78s(b)(1). dealers or bank dealers. unnecessary costs. SIFMA noted that 2 17 CFR 240.19b–4. The Commission also approved a the 21-member Board exceeds the 3 See Securities Exchange Act Release No. 65158 provision in MSRB Rule A–3 that statutory minimum Board size provided (August 18, 2011), 76 FR 52724 (the ‘‘Commission’s defined an independent public member Notice’’). in the Dodd-Frank Act, and believes any 4 See letter from Colette J. Irwin-Knott, President, as one with no material business deviation from the Board size referenced National Association of Independent Public relationship with an MSRB regulated in the statute should be for compelling Finance Advisors (‘‘NAIPFA’’), dated September 12, entity, meaning that, within the last two reasons. SIFMA believes that a Board 2011; letter from Michael Decker, Managing years, the individual was not associated Director and Co-Head of Municipal Securities, that includes 11 public representatives Securities Industry and Financial Markets with a municipal securities broker, will create challenges in terms of Association (‘‘SIFMA’’), dated September 13, 2011; recruiting candidates for Board seats letter from Susan Gaffney, Director, Federal Liaison 5 Public Law 111–203, 124 Stat. 1376 (2010). with sufficient knowledge and expertise Center, Government Finance Officers Association 6 See Securities Exchange Act Release No. 63025 (‘‘GFOA’’), dated September 16, 2011; and letter (September 30, 2010), 75 FR 61806 (October 6, in the municipal securities market so as from Lawrence P. Sandor, Senior Associate General 2010) (File No. SR–MSRB–2010–08) (‘‘Transitional Counsel, MSRB, dated September 19, 2011. Board Approval’’). 7 See supra note 4.

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to contribute effectively in the Board’s number.9 Although a 21-member Board most often used types of debt (e.g., discussions. SIFMA also stated that the would entail higher costs than a smaller general obligation bonds, revenue MSRB’s resources would be better Board, the larger Board would allow bonds, etc.). directed to key initiatives to improve greater representation of the interests of GFOA also stated that having the functioning of the market than to the various sectors of the municipal adequate independent financial advisors maintaining a larger Board with higher securities market, and, as stated by the on the Board is essential and that the costs attributable to travel and related MSRB, the larger Board size is not number of such independent financial expenses for Board meetings and other inconsistent with industry norms. The advisor representatives should be no events. SIFMA urged the MSRB to MSRB also believes the 21-member less than the number of those restore the Board to 15 members in the Board has worked efficiently and representing banks and broker-dealers; future. effectively during the transition GFOA further recommended allowing The MSRB responded that it provided period.10 only those financial advisors who are a strong justification for a 21-member unaffiliated with broker-dealers and B. Comments Regarding Board banks to serve as the municipal advisor Board in its proposed rule change. In Composition the proposal, the MSRB stated that, representatives on the Board. given the diversity of municipal entities, All three commenters raised concerns In addition, GFOA said that, in order broker-dealers, bank dealers, and about the Board’s composition. NAIPFA for a public Board member to be municipal advisors, a Board of 21 agreed with the rule’s requirement that considered ‘‘independent’’ from a members provides more flexibility to there be at least one municipal advisor regulated entity, such member should provide representation from various representative who is not associated have had no material business sectors of the markets. The MSRB also with a broker-dealer in each elected relationship with a regulated entity for the past five years, rather than the two stated that, at a 21-member level, the class of board members, but commented years provided for in Rule A–3. GFOA Board would be similar in size to its that the Board’s composition of seven said that this two-year bar is set too low counterpart, the Board of Governors of broker-dealer and bank dealer members to guarantee that a public board member the Financial Industry Regulatory compared to three municipal advisor has true independence, and that other Authority, and that a Board of 21 members did not constitute ‘‘fair criteria may also be needed to ensure members is appropriate and consistent representation’’ of municipal advisors as that any particular independent board with industry norms. The MSRB does was called for by the Dodd-Frank Act. SIFMA opposed the proposal’s position be filled by a professional that not agree with SIFMA’s comment mandate that at least 30 percent of has significant experience in the concerning the difficulty of filling the ‘‘regulated’’ members of the Board be particular community for which he or ‘‘public’’ seats with individuals with representatives of municipal advisor she serves on the Board. sufficient knowledge and expertise in firms that are not broker-dealers or bank The MSRB stated that it has carefully the municipal securities market. The dealers. SIFMA indicated that there is considered the interests of municipal MSRB stated that the municipal no comparable minimum for advisors, broker-dealers, and bank securities market is replete with representatives of broker-dealers or bank dealers as regulated entities, the MSRB’s individuals who, while satisfying Rule dealers, noted that the 30 percent obligation to write rules that protect A–3’s definition of ‘‘independent,’’ are minimum representation for municipal investors and municipal entities, and very knowledgeable about the workings advisors exceeds the statutory the statutory mandate that there be fair of the municipal securities market and minimum, and stated that the MSRB representation on the Board of broker- have devoted a considerable amount of offered no justification for this dealers, bank dealers, municipal their time to the improvement of that provision. advisors, and the public. The MSRB market, and that previous MSRB GFOA stated that the MSRB should indicated that while the statute requires searches for public Board members have ensure that there is adequate issuer that there be at least one municipal elicited strong responses from such representation on its Board in light of advisor representative on the Board, it is public servants. the MSRB’s new mission to protect the view of the Board that no less than The MSRB also stated that the municipal entities and obligated 30 percent of the members representing additional costs associated with a larger persons in addition to investors. GFOA regulated entities should be municipal Board were not substantial, and acknowledged that the Dodd-Frank Act advisors that are not associated with estimated the incremental cost of the states that the Board must be comprised broker-dealers or bank dealers. The larger Board at approximately one of ‘‘at least’’ one issuer and ‘‘at least’’ MSRB did not agree with SIFMA’s percent of its budget. The Board further one investor, but recommended that, if comment that the level of representation stated that it does not consider such the Board remains at 21 members, the of municipal advisors is additional costs to be an impediment to Board should include four issuers, four disproportionately large, noting that the the fulfillment of its key initiatives, and investors, and three general public development of rules for municipal that the larger Board contributes members. GFOA also stated that the advisors is not complete and that it is significantly to those initiatives. issuer positions should be filled by essential that municipal advisors The Commission finds that the 21- qualified and long-standing participate in the development of rules member Board size is not inconsistent representatives of various-sized state that affect them. The MSRB also did not with the Exchange Act. Section and local governments so that there agree with NAIPFA’s comment that this 15B(b)(2)(B)(iii) of the Exchange Act would be a balanced representation of level of representation of municipal provides that the rules of the Board may the issuer community. GFOA further advisors is disproportionately small, in increase the number of Board members stated that these issuer representatives relation to the representation of broker- over the default 15-member Board should generally come from general dealers and bank dealers, stating that structure set forth in the Exchange Act,8 purpose governments that issue the because many broker-dealers and bank provided that such number is an odd dealers engage in municipal advisory 9 See 15 U.S.C. 78o–4(b)(2)(B)(iii) (as amended by activities, it is inappropriate to assume 8 See 15 U.S.C. 78o–4(b)(1) (as amended by the the Dodd-Frank Act). that the interests of the municipal Dodd-Frank Act). 10 See Commission’s Notice. advisor Board representatives and the

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broker-dealer and bank dealer Board As noted in the Transitional Board at least one would be a bank representatives are adverse. Approval,13 previously, the Commission representative, and at least one, and not The MSRB believes that the proposal has considered whether the proposed less than 30 percent of the total adequately addresses GFOA’s concerns governance rules of an SRO are regulated representatives (i.e., three out about the adequacy of issuer consistent with the Exchange Act’s of 10), would be an advisor representation on the Board and its requirements under Sections 6 and 15A representative. Section 15B(b)(2)(B)(i) of proposed independence standards. The for fair representation of SRO members the Exchange Act requires the Board to MSRB does not believe that Rule A–3 generally.14 For example, the consist of a majority of public should be amended to provide for a Commission has approved an SRO’s representatives, leaving a minority of greater minimum number of municipal governance rules that require that the the Board available to achieve ‘‘fair entity representatives than that SRO’s members as a whole be able to representation’’ of the three sub- mandated by the Exchange Act, and select at least 20 percent of the total categories of regulated representatives.17 noted that they have a mandate to number of directors of the exchange’s or Accordingly, ‘‘fair representation’’ of protect all municipal entities. The association’s board.15 In addition, the each of the sub-categories must MSRB also noted that the proposed rule Commission has previously found SRO necessarily mean something less than language already addresses GFOA’s rules that provide sub-categories of the 20 percent standard, in relation to concern that municipal advisor regulated persons with the right to an entire board, previously approved by representatives not be broker-dealers or select a specified number of directors to the Commission for SRO members bank dealers. Further, the MSRB be consistent with the Exchange Act.16 generally under Sections 6 and 15A of believes that no change to the definition Under the MSRB proposal, of the 10 the Exchange Act. of ‘‘independent’’ in Rule A–3 is regulated representatives, at least one The Commission also notes that warranted because the definition is would be a broker-dealer representative, Section 15B(b)(1) of the Exchange Act already more stringent than the sets forth minimum representation definition used by other self-regulatory 13 See supra, note 6. requirements for bank, broker-dealer 14 Section 6(b)(3) of the Exchange Act provides and advisor representatives.18 It does organizations (‘‘SROs’’), and because the that: ‘‘An exchange shall not be registered as a definition strikes the right conservative national securities exchange unless the Commission not mandate the specific number of any balance of ensuring sufficient determines that * * * (3) The rules of the exchange class of representatives that should independence while not permanently assure a fair representation of its members in the serve on the Board, nor does it set forth restricting knowledgeable individuals. selection of its directors and administration of its maximum Board composition or affairs and provide that one or more directors shall representation requirements.19 Thus, as The Commission finds that the be representative of issuers and investors and not proposed Board composition is be associated with a member of the exchange, with the interpretation of ‘‘fair broker, or dealer.’’ 15 U.S.C. 78f(b)(3). Section representation’’ with respect to other consistent with the requirements of the 15A(b)(4) of the Exchange Act contains an identical Exchange Act, and the rules and SROs, the Commission has flexibility in requirement with respect to the rules of a national determining what constitutes ‘‘fair regulations thereunder applicable to the securities association. See 15 U.S.C. 78o–3(b)(4). MSRB, including the fair representation 15 See, e.g., Securities Exchange Act Release No. representation’’ for purposes of the requirements of the Exchange Act. 58324 (August 7, 2008), 73 FR 46936 (August 12, Board’s composition under Section 15B 2008) (stating that ‘‘the requirement under BSE By- Section 15B(b)(2)(B) of the Exchange of the Exchange Act. Based on the Laws that at least 20% of the BSE Directors constraints of Section 15B(b)(2)(B)(i) Act requires, among other things, that represent members * * * [is] designed to ensure the rules of the Board establish fair the fair representation of BSE members on the BSE noted above, and the Commission’s procedures for the nomination and Board’’); Securities Exchange Act Release No. 53128 consideration of ‘‘fair representation’’ in (January 13, 2006), 71 FR 3550 (January 23, 2006) election of members of the Board and other contexts, the Commission believes (stating that ‘‘the requirement in [Nasdaq’s] By- that the MSRB’s proposal to ensure that assure fair representation in such Laws that twenty percent of the directors be nominations and elections of public ‘Member Representative Directors’ * * * provides representatives of municipal advisors representatives, broker-dealer for the fair representation of members in the (that are not associated with a broker, selection of directors * * * consistent with the dealer or municipal securities dealer), representatives, bank representatives, requirement in section 6(b)(3) of the Exchange and advisor representatives.11 which first became subject to MSRB Section Act’’); Securities Exchange Act Release No. 48946 20 15B(b)(2)(B)(i) of the Exchange Act (December 17, 2003), 68 FR 74678 (December 24, rulemaking in the Dodd-Frank Act, provides that the number of public 2003) (stating that the amended Constitution of the would constitute at least 30 percent of New York Stock Exchange, which gives Exchange representatives of the Board must at all the directors that may be representative members the ability to nominate no less than 20% of the three sub-categories of regulated times exceed the total number of of the directors on the Board, satisfies the Section regulated representatives.12 6(b)(3) fair representation requirement); see also representatives, is reasonable, and Securities Exchange Act Release No. 50699 consistent with Section 15B(b)(2)(B) of The MSRB proposes that the (November 18, 2004), 69 FR 71126 (December 8, the Exchange Act.21 permanent Board, like the current Board 2004) (stating that ‘‘[c]onsistent with the fair representation requirement, the [Commission’s] operating under the transitional rule for 17 See 15 U.S.C. 78o–4(b)(2)(B)(i) (as amended by the Board’s fiscal years commencing proposed [SRO] governance rules would require that the Nominating Committee administer a fair the Dodd-Frank Act). October 1, 2010 and ending September process that provides members with the 18 See 15 U.S.C. 78o–4(b)(1) (as amended by the 30, 2012, consist of 11 public opportunity to select at least 20% of the total Dodd-Frank Act). representatives and 10 regulated number of directors ‘member candidates’) * * * 19 See id. representatives. Of those 10 regulated This ‘20% standard’ for member candidates 20 See 15 U.S.C. 78o-4(b)(2) (as amended by the comports with previously-approved SRO rule Dodd-Frank Act). In addition, the Dodd-Frank Act representatives, the MSRB proposes that changes that raised the issue of fair amended Section 15B of the Exchange Act to at least one, and not less than 30 percent representation’’). require municipal advisors to register with the shall be advisor representatives (i.e., 16 See, e.g., Securities Exchange Act Release No. Commission as of October 1, 2010. See Securities three out of 10). 56145 (July 26, 2007), 72 FR 42169 (August 1, 2007) Exchange Act Release No. 62824 (September 1, (approving the composition of the FINRA (f/k/a 2010), 75 FR 54465 (September 8, 2010) (adopting NASD) Board of Governors to include three small interim final temporary Rule 15Ba2–6T under the 11 See 15 U.S.C. 78o–4(b)(2)(B) (as amended by firm Governors, one mid-size firm Governor, and Exchange Act to require the temporary registration the Dodd-Frank Act). three large-firm Governors, elected by members of of municipal advisors on Form MA–T). 12 See 15 U.S.C. 78o–4(b)(2)(B)(i) (as amended by FINRA according to their classification as a small 21 See 15 U.S.C. 78o-4(b)(2)(B) (as amended by the the Dodd-Frank Act). firm, mid-size firm, or large firm). Dodd-Frank Act).

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In finding that the transitional Board various Board processes. NAIPFA governance processes. The Board does was reasonable and consistent with the requested that the MSRB’s Board not believe that there have been requirements of the Exchange Act, the member selection and leadership inconsistencies between statements Commission noted that the MSRB had processes become more transparent in made by MSRB leadership and actions committed to monitor the effectiveness order to ensure that the public interest of the Board. The MSRB stated that its of the structure of the Board to is being served. The MSRB responded Board meetings are closed to the public determine to what extent, if any, by noting that the Board recently made in order to promote free and frank proposed changes in representation the application process for Board discussion on all topics and to promote might be appropriate.22 Based on its members more transparent by an environment in which impartial experience during the transitional establishing a policy of publishing the judgment may be exercised. However, period, the MSRB has determined that names of all applicants on the Board’s the Board indicated that it is exploring the current transitional Board website within one week of the other alternatives to promote composition is working effectively and publication of the names of the new transparency, as transparency is an efficiently.23 Accordingly, the Board members. NAIPFA also expressed important priority of the Board. Commission believes that the proposed concern that the Board members who Although the provisions of the Board composition, like the transitional are to serve on the Special Nominating proposed rule change do not directly Board composition, complies with the Committee to be established as part of relate to the transparency of Board Exchange Act.24 The Commission also the proposed rule have already been processes, the Commission notes that agrees that allotting at least 30 percent selected, and expressed concerns the Board has indicated that it is of the regulated entity positions to regarding the process by which the exploring alternatives to promote municipal advisors that are not Special Nominating Committee transparency. associated with broker-dealers or bank members were selected. The MSRB IV. Discussion and Commission dealers, which is higher than the responded to the concerns about the Findings minimum representation of municipal Special Nominating Committee by advisors required by the Dodd-Frank stating that the selection complied with The Commission has carefully Act,25 will assist the Board in its MSRB Rule A–6(a), which permits the considered the proposed rule change, rulemaking process with respect to Board to establish special committees by the comment letters received, and the municipal advisors, and will help resolution, and noting that the members MSRB’s response to the comment letters inform the Board’s decisions regarding who were selected for the Special and finds that the proposed rule change other municipal advisory activities Nominating Committee for term is consistent with the requirements of while not detracting from the Board’s extensions were the only Board the Exchange Act and the rules and ability to continue its existing members who met their criteria of being regulations thereunder applicable to the rulemaking duties with respect to ‘‘disinterested’’ in the selection process MSRB.27 In particular, the proposed rule broker-dealer and bank activity in the because of their ineligibility for a term change is consistent with Section municipal securities market. The extension. 15B(b)(1) of the Act,28 which requires, Commission also agrees with the MSRB NAIPFA also requested that the MSRB among other things, that the Board shall that the existing definition of utilize a more transparent process with consist of at least eight public ‘‘independent of any municipal regard to future rulemaking by giving representatives (with at least one securities broker, municipal securities member firms more information about investor representative, at least one the rules the MSRB addresses at dealer or municipal advisor’’ in Rule A– issuer representative, and at least one particular Board meetings and providing 3, which was not changed by the general public representative) and seven the timeline with which the MSRB proposed rule change, strikes a regulated representatives (with at least anticipates rule releases. NAIPFA reasonable balance of ensuring one broker-dealer representative, at least suggested that the MSRB post meeting sufficient independence while not one bank representative, and at least one agendas at least 48 hours in advance of permanently restricting knowledgeable advisor representative). a meeting date, and allow for public individuals. In approving the The proposed rule change is also attendance at Board meetings and independence definition in Rule A–3, consistent with Section 15B(b)(2)(B) of public participation in Board conference the Commission noted that the two-year the Act,29 which provides that the calls. In addition, NAIPFA requested MSRB’s rules shall: cooling off period is a minimum that the MSRB act to ensure that requirement and would allow the Board, statements made by leadership are Establish fair procedures for the or by delegation, its Nominating consistent with the actions of the Board. nomination and election of members of the Committee, to determine additional GFOA also stated that there is a need Board and assure fair representation in such circumstances involving the individual for greater transparency with Board nominations and elections of public representatives, broker dealer that would constitute a ‘‘material practices. GFOA suggested that the business relationship’’ with a municipal representatives, bank representatives, and Board hold their meetings in public and advisor representatives. Such rules— securities broker, municipal securities allow for outside participation. GFOA 26 (i) Shall provide that the number of public dealer, or municipal advisor. also suggested that Board meeting representatives of the Board shall at all times C. Comments Regarding Transparency agendas be made available well before exceed the total number of regulated of Board Processes the scheduled meetings, and that the representatives and that the membership meeting minutes be published within 10 shall at all times be as evenly divided in NAIPFA and GFOA expressed business days of each meeting. number as possible between public concerns about the transparency of The MSRB responded that it believes representatives and regulated representatives; its rulemaking process provides 22 See Transitional Board Approval, supra note 6. considerable opportunities for full 27 In approving this proposed rule change, the 23 See Commission’s Notice. Commission notes that it has considered the 24 See Transitional Board Approval, supra note 6. public involvement and comment on proposed rule’s impact on efficiency, competition 25 See 15 U.S.C. 78o-4(b)(1) (as amended by the regulatory initiatives, and that the Board and capital formation. 15 U.S.C. 78c(f). Dodd-Frank Act). is careful to consider all feedback 28 15 U.S.C. 78o–4(b)(1). 26 See Transitional Board Approval, supra note 6. regarding potential improvements to its 29 15 U.S.C. 78o–4(b)(2)(B).

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(ii) shall specify the length or lengths of SECURITIES AND EXCHANGE simplify the $1 Strike Price Program terms members shall serve; COMMISSION (‘‘Program’’). (iii) may increase the number of members In 2003, the Commission issued an which shall constitute the whole Board, [Release No. 34–65418; File No. SR– order permitting the Exchange to NYSEArca–2011–66] provided that such number is an odd establish the Program on a pilot basis.3 number; and Self-Regulatory Organizations; NYSE At that time, the underlying stock had (iv) shall establish requirements regarding Arca, Inc.; Notice of Filing and to close at or below $20 on the previous the independence of public representatives. Immediate Effectiveness of Proposed trading day in order to qualify for the Program. The range of available $1 The Commission believes that the Rule Change Amending Commentary strike price intervals was limited to a proposal provides for fair representation .04 to Rule 6.4 in Order To Simplify the $1 Strike Price Program range between $3 and $20 and no strike of public representatives, broker- price was permitted that was greater dealers, bank dealers and municipal September 28, 2011. than $5 from the underlying stock’s advisors consistent with the Exchange Pursuant to Section 19(b)(1) of the closing price on the previous trading Act, and that providing a minimum Securities Exchange Act of 1934 (the day. Series in $1 strike price intervals number of non-dealer municipal advisor ‘‘Act’’) 1 and Rule 19b–4 thereunder,2 were not permitted within $0.50 of an representatives—at least 30 percent of notice is hereby given that, on existing strike. In addition, the the regulated representatives—is September 26, 2011, NYSE Arca, Inc. Exchange was limited to selecting five reasonable, and consistent with the (the ‘‘Exchange’’ or ‘‘NYSE Arca’’) filed (5) classes and reciprocal listing was Exchange Act. The Commission notes with the Securities and Exchange permitted. Furthermore, Long-Term that the proposal provides that the Commission (the ‘‘Commission’’) the Equity Option Series (‘‘LEAPS’’) in $1 number of public representatives on the proposed rule change as described in strike price intervals were not permitted Board shall exceed the total number of Items I and II below, which Items have for classes selected to participate in the regulated representatives by one so that been prepared by the Exchange. The Program. Commission is publishing this notice to the membership shall be as evenly The Exchange renewed the pilot solicit comments on the proposed rule divided as possible between public program on a yearly basis and, in 2008, change from interested persons. representatives and regulated the Exchange adopted the pilot program 4 representatives—11 to 10. The proposal I. Self-Regulatory Organization’s on a permanent basis. At that time, the specifies the length of terms that Board Statement of the Terms of Substance of Program was expanded to increase the members will serve—three years— the Proposed Rule Change upper limit of the permissible strike price range from $20 to $50. In addition, which is consistent with the length of The Exchange proposes to amend the number of class selections per the terms served by Board members Commentary .04 to Rule 6.4 in order to exchange was increased from five (5) to prior to the adoption of the Dodd-Frank simplify the $1 Strike Price Program. ten (10). The text of the proposed rule change is Act. The proposal increases the size of Since the Program was made available on the Exchange’s Web site at the Board from 15 to 21, consistent with permanent, the number of class http://www.nyse.com, at the Exchange’s the size of the Board during the selections per exchange has been principal office, on the Commission’s transitional period that commenced on increased from ten (10) classes to 55 Web site at http://www.sec.gov, and at October 1, 2010. Finally, the proposal classes 5 and subsequently increased the Commission’s Public Reference maintains the existing requirement from 55 classes to 150 classes.6 Room. regarding the independence of public The most recent expansion of the representatives. II. Self-Regulatory Organization’s Program was approved by the Statement of the Purpose of, and Commission in early 2011 and increased V. Conclusion Statutory Basis for, the Proposed Rule the number of $1 strike price intervals It is therefore ordered, pursuant to Change permitted within the $1 to $50 range.7 Section 19(b)(2) of the Exchange Act,30 In its filing with the Commission, the Amendments To Simplify Non-LEAPS that the proposed rule change (SR– self-regulatory organization included Rule Text MSRB–2011–11) be, and it hereby is, statements concerning the purpose of These numerous expansions have approved. and basis for the proposed rule change and discussed any comments it received resulted in very lengthy rule text that For the Commission, by the Division of on the proposed rule change. The text the Exchange believes is complicated Trading and Markets, pursuant to delegated of those statements may be examined at and difficult to understand. The authority.31 the places specified in Item IV below. Exchange believes that the proposed Elizabeth M. Murphy, The Exchange has prepared summaries, changes to simplify the rule text of the Secretary. set forth in sections A, B, and C below, Program would benefit market [FR Doc. 2011–25478 Filed 10–3–11; 8:45 am] of the most significant parts of such 3 See Securities Exchange Act Release No. 48045 BILLING CODE 8011–01–P statements. (June 17, 2003), 68 FR 37594 (June 24, 2003) (SR– A. Self-Regulatory Organization’s PCX–2003–28). 4 See Securities Exchange Act Release No. 57130 Statement of the Purpose of, and (January 10, 2008), 73 FR 3302 (January 17, 2008) Statutory Basis for, the Proposed Rule (SR–NYSEArca–2008–04). Change 5 See Securities Exchange Act Release No. 59587 (March 17, 2009), 74 FR 12414 (March 24, 2009) 1. Purpose (SR–NYSEArca–2009–10). The Exchange is proposing to amend 6 See Securities Exchange Act Release No. 62450 (July 2, 2010), 75 FR 39712 (July 12, 2010) (SR– Commentary .04 to Rule 6.4 in order to NYSEArca–2010–66). 7 See Securities Exchange Act Release No. 63770 30 15 U.S.C. 78s(b)(2). 1 15 U.S.C. 78s(b)(1). (January 25, 2011), 76 FR 5627 (February 1, 2011) 31 17 CFR 200.30–3(a)(12). 2 17 CFR 240.19b–4. (SR–NYSEArca–2010–106).

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participants since the Program will be Amendments To Simplify LEAPS Rule prohibition applies to non-LEAPS and easier to understand and would Text LEAPS. The Exchange proposes to maintain the expansions made to the The early 2011 expansion of the maintain this prohibition and codify it Program, including those in early 2011. Program permitted for some limited in paragraph (a) to Commentary .04 to Through the current proposal, the listing of LEAPS in $1 strike price Rule 6.4 (Program Description). Exchange also hopes to make intervals for classes that participate in For ease of reference, the Exchange is administration of the Program easier, the Program. The Exchange is proposing proposing to add the headings ‘‘Program e.g., system programming efforts. To to maintain the expansion as to LEAPS, Description,’’ ‘‘Initial and Additional simplify the rules of the Program and, but simplify the language and provide Series’’ and ‘‘LEAPS’’ to Commentary as a proactive attempt to mitigate any examples of the simplified rule text. .04 to Rule 6.4. unintentional listing of improper These changes are set forth in proposed The Exchange is proposing to more strikes, the Exchange is proposing the new paragraph (b)(v) to Commentary .04 accurately reflect the nature of the following streamlining amendments: Program and is proposing to make • to Rule 6.4. When the price of the underlying For stocks in the Program, the stylistic changes throughout stock is equal to or less than $20, permit Exchange may list one $1 strike price Commentary .04 to Rule 6.4 by $1 strike price intervals with an exercise interval between each standard $5 strike renaming the Program ‘‘The $1 Strike price up to 100% above and 100% price interval, with the $1 strike price Price Interval Program’’ and by adding below the price of the underlying interval being $2 above the standard the phrase ‘‘price interval.’’ stock.8 The Exchange proposes to reorganize Æ strike for each interval above the price However, the above restriction of the underlying stock, and $2 below certain text of Commentary .04 to Rule would not prohibit the listing of at least the standard strike for each interval 6.4 and portions of the Delisting Policy five (5) strike prices above and below below the price of the underlying stock therein in order to better organize the price of the underlying stock per (‘‘$2 wings’’). For example, if the price Commentary .04. This would include expiration month in an option class.9 moving current paragraph (b) out of Æ of the underlying stock is $24.50, the For example, if the price of the Exchange may list the following Commentary .04 and instead including underlying stock is $2, the Exchange standard strikes in $5 intervals: $15, the text as new Commentary .13 to Rule would be permitted to list the following $20, $25, $30 and $35. Between these 6.4. series: $1, $2, $3, $4, $5, $6 and $7.10 Lastly, the Exchange is making • standard $5 strikes, the Exchange may When the price of the underlying list the following $2 wings: $18, $27 and technical changes to Commentary .04 to stock is greater than $20, permit $1 $32.14 Rule 6.4, e.g., replacing the word strike price intervals with an exercise In addition, the Exchange may list the ‘‘security’’ with the word ‘‘stock.’’ price up to 50% above and 50% below $1 strike price interval which is $2 The Exchange represents that it has the price of the underlying security up above the standard strike just below the the necessary systems capacity to to $50.11 • underlying price at the time of listing. support the increase in new options For the purpose of adding strikes In the above example, since the series that would result from the under the Program, the ‘‘price of the standard strike just below the proposed streamlining changes to the underlying stock’’ shall be measured in underlying price ($24.50) is $20, the Program. the same way as ‘‘the price of the Exchange may list a $22 strike. The 2. Statutory Basis underlying security’’ is, as set forth in Exchange may add additional LEAP Rule 6.4A(b)(1).12 The Exchange believes that the • strikes as the price of the underlying Prohibit the listing of additional stock moves, consistent with the proposed rule change is consistent with series in $1 strike price intervals if the Options Listing Procedures Plan Section 6(b) of the Act,15 in general, and underlying stock closes at or above $50 (‘‘OLPP’’). furthers the objectives of Section 6(b)(5) in its primary market and provide that of the Act,16 in particular, because it is additional series in $1 strike price Non-Substantive Amendments to Rule designed to promote just and equitable intervals may not be added until the Text principles of trade, remove underlying stock closes again below The early 2011 expansion of the impediments to and perfect the $50.13 Program prohibited the listing of $2.50 mechanisms of a free and open market strike price intervals for classes that and a national market system and, in 8 See proposed new paragraph (b)(i) to participate in the Program. This general, to protect investors and the Commentary .04 to Rule 6.4. 9 Id. public interest. In particular, the interpretations among the exchanges that have 10 Id. proposed rule change seeks to reduce adopted similar programs. The $50 price criterion 11 See proposed new paragraph (b)(ii) to for additional series was intended when the investor confusion and to simplify the Commentary .04 to Rule 6.4. Program was originally established (as a pilot) in provisions of the $1 Strike Price Interval 12 See proposed new paragraph (b)(iii) to 2003. See supra note 4 (‘‘the Exchange may list an Program. Commentary .04 to Rule 6.4. Rule 6.4A(b)(1) additional expiration month for a $1 strike series provides, ‘‘[t]he price of the underlying security is provided that the underlying strike price closes B. Self-Regulatory Organization’s measured by: (1) For intra-day add-on series and b[e]low $20 on its primary market on expiration Statement on Burden on Competition next-day series additions, the daily high and low of Friday. If the underlying closes at or above $20 on all prices reported by all national securities expiration Friday, the Exchange would not list an The Exchange believes that the exchanges; (2) for new expiration months, the daily additional month for $1 strike series until the stock proposed rule change is consistent with high and low of all prices reported by all national again closes below $20.’’). Section 6(b) of the Act,17 in general, and securities exchanges on the day the Exchange 14 The Exchange notes that a $2 wing is not determines its preliminary notification of new permitted between the standard $20 and $25 strikes furthers the objectives of Section 6(b)(5) series; and (3) for options series to be added as a in the above example. This is because the $2 wings of the Act,18 in particular, because it is result of pre-market trading, the most recent share are added based on reference to the price of the designed to promote just and equitable price reported by all national securities exchanges underlying and as being between the standard between 8:45 a.m. and 9:30 a.m. Eastern Time.’’ strikes above and below the price of the underlying 15 13 See proposed new paragraph (b)(iv) to stock. Since the price of the underlying stock 15 U.S.C. 78f(b). Commentary .04 to Rule 6.4. The Exchange believes ($24.50) straddles the standard strikes of $20 and 16 15 U.S.C. 78f(b)(5). that it is important to codify this additional series $25, no $2 wing is permitted between these 17 15 U.S.C. 78f(b). criterion because there have been conflicting standard strikes. 18 15 U.S.C. 78f(b)(5).

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principles of trade, remove investors, or otherwise in furtherance of submitted on or before October 25, impediments to and perfect the the purposes of the Act. If the 2011. mechanisms of a free and open market Commission takes such action, the For the Commission, by the Division of and a national market system and, in Commission shall institute proceedings Trading and Markets, pursuant to delegated general, to protect investors and the to determine whether the proposed rule authority.23 public interest. In particular, the should be approved or disapproved. Elizabeth M. Murphy, proposed rule change seeks to reduce IV. Solicitation of Comments Secretary. investor confusion and to simplify the [FR Doc. 2011–25475 Filed 10–3–11; 8:45 am] provisions of the $1 Strike Price Interval Interested persons are invited to Program. submit written data, views, and BILLING CODE 8011–01–P arguments concerning the foregoing, C. Self-Regulatory Organization’s including whether the proposed rule Statement on Comments on the change is consistent with the Act. SECURITIES AND EXCHANGE Proposed Rule Change Received From Comments may be submitted by any of COMMISSION Members, Participants, or Others the following methods: [Release No. 34–65420; File No. SR–Phlx– No written comments were solicited Electronic Comments 2011–128] or received with respect to the proposed • rule change. Use the Commission’s Internet Self-Regulatory Organizations; Notice comment form (http://www.sec.gov/ III. Date of Effectiveness of the of Filing and Immediate Effectiveness rules/sro.shtml); or of Proposed Rule Change by NASDAQ Proposed Rule Change and Timing for • Send an e-mail to rule- Commission Action OMX PHLX LLC Regarding [email protected]. Please include File Simplification of the Exchange’s $1 Because the foregoing proposed rule Number SR–NYSEArca–2011–66 on the Strike Price Program change does not significantly affect the subject line. protection of investors or the public Paper Comments September 28, 2011. interest, does not impose any significant • Pursuant to Section 19(b)(1) of the burden on competition, and, by its Send paper comments in triplicate Securities Exchange Act of 1934 (the terms, does not become operative for 30 to Elizabeth M. Murphy, Secretary, ‘‘Act’’) 1 and Rule 19b–4 thereunder,2 days from the date on which it was Securities and Exchange Commission, notice is hereby given that, on filed, or such shorter time as the 100 F Street, NE., Washington, DC September 27, 2011, NASDAQ OMX Commission may designate, it has 20549–1090. PHLX LLC (‘‘Phlx’’ or ‘‘Exchange’’) filed become effective pursuant to Section All submissions should refer to File with the Securities and Exchange 19(b)(3)(A) of the Act 19 and Rule 19b– Number SR–NYSEArca–2011–66. This Commission (‘‘SEC’’ or ‘‘Commission’’) 4(f)(6) thereunder.20 file number should be included on the the proposed rule change as described The Exchange has requested that the subject line if e-mail is used. To help the in Items I and II below, which Items Commission waive the 30-day operative Commission process and review your have been prepared by the Exchange. delay. The Commission believes that comments more efficiently, please use The Commission is publishing this waiver of the operative delay is only one method. The Commission will notice to solicit comments on the consistent with the protection of post all comments on the Commission’s proposed rule change from interested investors and the public interest Internet Web site (http://www.sec.gov/ persons. because the proposal is substantially rules/sro.shtml). Copies of the similar to that of another exchange that submission, all subsequent I. Self-Regulatory Organization’s has been approved by the amendments, all written statements Statement of the Terms of Substance of Commission.21 Therefore, the with respect to the proposed rule the Proposed Rule Change Commission designates the proposal change that are filed with the The Exchange is filing with the operative upon filing.22 Commission, and all written Commission a proposal to modify At any time within 60 days of the communications relating to the Commentary .05 to Phlx Rule 1012 filing of the proposed rule change, the proposed rule change between the (Series of Options Open for Trading) to Commission summarily may Commission and any person, other than simplify the Exchange’s $1 Strike Price temporarily suspend such rule change if those that may be withheld from the Program (the ‘‘$1 Strike Program’’ or it appears to the Commission that such public in accordance with the ‘‘Program’’). action is necessary or appropriate in the provisions of 5 U.S.C. 552, will be The Exchange requests that the public interest, for the protection of available for website viewing and Commission waive the 30-day operative printing in the Commission’s Public delay period contained in Exchange Act 19 15 U.S.C. 78s(b)(3)(A). Reference Room, 100 F Street, NE., Rule 19b–4(f)(6)(iii).3 20 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– Washington, DC 20549, on official The text of the proposed rule change 4(f)(6)(iii) requires the Exchange to give the business days between the hours of 10 Commission written notice of the Exchange’s intent is available on the Exchange’s Web site to file the proposed rule change, along with a brief a.m. and 3 p.m. Copies of such filing at http:// description and text of the proposed rule change, also will be available for inspection and nasdaqomxphlx.cchwallstreet.com/ at least five business days prior to the date of filing copying at the principal office of the NASDAQOMXPHLX/Filings/, at the of the proposed rule change, or such shorter time Exchange. All comments received will as designated by the Commission. The Exchange Exchange’s principal office, on the has satisfied the five-day prefiling requirement. be posted without change; the Commission’s Web site at http:// 21 See Securities Exchange Act Release No. 65383 Commission does not edit personal www.sec.gov, and at the Commission’s (September 22, 2011) (SR–CBOE–2011–040) (order identifying information from Public Reference Room. approving proposed rule change to simplify the $1 submissions. You should submit only Strike Price Interval Program). information that you wish to make 23 22 For purposes only of waiving the 30-day 17 CFR 200.30–3(a)(12). operative delay, the Commission has considered the publicly available. All submissions 1 15 U.S.C. 78s(b)(1). proposed rule’s impact on efficiency, competition, should refer to File Number SR– 2 17 CFR 240.19b–4. and capital formation. See 15 U.S.C. 78c(f). NYSEArca–2011–66 and should be 3 17 CFR 240.19b–4(f)(6)(iii).

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II. Self-Regulatory Organization’s the Program was expanded to increase underlying stock’’ shall be measured in Statement of the Purpose of, and the upper limit of the permissible strike the same way as ‘‘the price of the Statutory Basis for, the Proposed Rule price range from $20 to $50. In addition, underlying security’’ set forth in Change the number of class selections per subparagraph (a) of Commentary .10 to exchange was increased from five (5) to Rule 1012.14 In its filing with the Commission, the • Exchange included statements ten (10). Since the Program was made Prohibit the listing of additional concerning the purpose of and basis for permanent, the number of class series in $1 strike price intervals if the the proposed rule change and discussed selections per exchange has been underlying stock closes at or above $50 any comments it received on the increased from ten (10) classes to 55 in its primary market and provide that 8 proposed rule change. The text of these classes. The number of class selections additional series in $1 strike price statements may be examined at the per exchange has been last expanded to intervals may not be added until the 9 places specified in Item IV below. The 150 classes in 2010. underlying stock closes again below 15 Exchange has prepared summaries, set Amendments To Simplify Non-LEAPS $50. forth in sections A, B, and C below, of Rule Text Amendments To Simplify LEAPS Rule the most significant aspects of such The development and expansion of Text statements. the Program has resulted in very lengthy The 2010 expansion of the Program A. Self-Regulatory Organization’s rule text that is complicated and could permitted for some limited listing of Statement of the Purpose of, and be difficult to understand. The LEAPS in $1 strike price intervals for Statutory Basis for, the Proposed Rule Exchange believes that the proposed classes that participate in the Program. Change changes to simplify the rule text of the The Exchange is proposing to maintain Program will benefit market participants 1. Purpose the expansion as to LEAPS, but simplify since the Program will be easier to the language and provide examples of The purpose of this proposed rule understand and will maintain the the simplified rule text. These changes change is to modify Commentary .05 to expansions that were made to the are set forth in proposed subparagraph Phlx Rule 1012 to simplify the Program in 2010. Through the current (a)(i)(B)(5) of Commentary .05 to Rule Exchange’s $1 Strike Program. proposal, the Exchange also hopes to 1012. In 2003, the Commission issued an make administration of the Program For stocks in the Program, the order permitting the Exchange to easier (e.g., system programming 4 Exchange may list one $1 strike price establish the Program on a pilot basis. efforts). To simply the rules of the interval between each standard $5 strike At that time, the underlying stock had Program and, as a proactive attempt to interval, with the $1 strike price interval to close at $20 on the previous trading mitigate any unintentional listing of being $2 above the standard strike for day in order to qualify for the Program. improper strikes, the Exchange is each interval above the price of the The range of available $1 strike price proposing the following streamlining underlying stock, and $2 below the intervals was limited to a range between amendments: standard strike for each interval below $3 and $20 and no strike price was • When the price of the underlying the price of the underlying stock (‘‘$2 permitted that was greater than $5 from stock is equal to or less than $20, permit wings’’). For example, if the price of the the underlying stock’s closing price on $1 strike price intervals with an exercise underlying stock is $24.50, the the previous trading day. Series in $1 price up to 100% above and 100% Exchange may list the following strike price intervals were not permitted below the price of the underlying standard strikes in $5 intervals: $15, within $0.50 of an existing strike. In 10 stock. $20, $25, $30 and $35. Between these addition, the Exchange was limited to Æ However, the above restriction standard $5 strikes, the Exchange may selecting five (5) classes and reciprocal would not prohibit the listing of at least list the following $2 wings: $18, $27 and listing was permitted. Furthermore, five (5) strike prices above and below $32.16 LEAPS 5 in $1 strike price intervals were the price of the underlying stock per not permitted for classes selected to expiration month in an option class.11 Æ 14 See proposed new subparagraph (a)(i)(B)(3) of participate in the Program. The For example, if the price of the Commentary .05 to Rule 1012. Subparagraph (a) of Exchange renewed the pilot program on underlying stock is $2, the Exchange Commentary .10 to Rule 1012 provides, in relevant a yearly basis.6 would be permitted to list the following part, that the price of the underlying security is In 2008, the Program was expanded series: $1, $2, $3, $4, $5, $6 and $7.12 measured by: (i) For intra-day add-on series and • next-day series additions, the daily high and low of and the Commission granted permanent When the price of the underlying all prices reported by all national securities 7 approval of the Program. At that time, stock is greater than $20, permit $1 exchanges; (ii) for new expiration months, the daily strike price intervals with an exercise high and low of all prices reported by all national 4 See Securities Exchange Act Release No. 48013 price up to 50% above and 50% below securities exchanges on the day the Exchange (June 11, 2003), 68 FR 35933 (June 17, 2003) (SR– determines to list a new series; and (iii) for option the price of the underlying security up series to be added as a result of pre-market trading, Phlx–2002–55) (approval of pilot program). 13 5 to $50. the most recent share price reported by all national Long-Term Equity Anticipation Securities • (LEAPS) are long-term options that generally have For the purpose of adding strikes securities exchanges between 8:45 a.m. and 9:30 up to thirty-nine months from the time they are under the Program, the ‘‘price of the a.m. Eastern Time. listed until expiration. Commentary .03 to Rule 15 The Exchange believes that other markets that 1012. Long-term FLEX options and index options have $1 strike programs will submit similar 8 See Securities Exchange Act Release No. 59590 are considered separately in Rules 1079(a)(6) and proposals to the Commission, and therefore (March 17, 2009), 74 FR 12412 (March 24, 2009) 1101A(b)(iii), respectively. proposes the $50 dollar prohibition in this filing for (SR–Phlx–2009–21). 6 Securities Exchange Act Release Nos. 49801 purposes of uniformity. The Exchange intends, 9 See Securities Exchange Act Release No. 62420 (June 3, 2004), 69 FR 32652 (June 10, 2004) (SR– however, to subsequently propose an amendment to (June 30, 2010), 75 FR 39593 (July 9, 2010) (SR– Phlx–2004–38); 51768 (May 31, 2005), 70 FR 33250 the $50 prohibition so that it would not impede Phlx–2010–72). (June 7, 2005) (SR–Phlx–2005–35); 53938 (June 5, addition series in $1 strike price intervals in certain 10 2006), 71 FR 34178 (June 13, 2006) (SR–Phlx–2006– See proposed new subparagraph (a)(i)(B)(1) of circumstances (e.g. stock gapping). 36); and 55666 (April 25, 2007), 72 FR 23879 (May Commentary .05 to Rule 1012. 16 The Exchange notes that a $2 wing is not 1, 2007) (SR–Phlx–2007–29). 11 Id. permitted between the standard $20 and $25 strikes 7 See Securities Exchange Act Release No. 57111 12 Id. in the above example. This is because the $2 wings (January 8, 2008), 73 FR 2297 (January 14, 2008) 13 See proposed new subparagraph (a)(i)(B)(2) of are added based on reference to the price of the (SR–Phlx–2008–01). Commentary .05 to Rule 1012. underlying and as being between the standard

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In addition, the Exchange may list the necessary or appropriate in furtherance IV. Solicitation of Comments $1 strike price interval which is $2 of the purposes of the Act. above the standard strike just below the Interested persons are invited to underlying price at the time of listing. C. Self-Regulatory Organization’s submit written data, views, and In the above example, since the Statement on Comments on the arguments concerning the foregoing, standard strike just below the Proposed Rule Change Received From including whether the proposed rule underlying price ($24.50) is $20, the Members, Participants, or Others change is consistent with the Act. Exchange may list a $22 strike. The No written comments were either Comments may be submitted by any of Exchange may add additional long-term solicited or received. the following methods: options series strikes as the price of the Electronic Comments underlying stock moves, consistent with III. Date of Effectiveness of the the OLPP. Proposed Rule Change and Timing for • Use the Commission’s Internet Commission Action Non-Substantive Amendments to Rule comment form (http://www.sec.gov/ Text Because the foregoing proposed rule rules/sro.shtml); or • The 2010 expansion of the Program change does not significantly affect the Send an e-mail to rule- prohibited the listing of $2.50 strike protection of investors or the public [email protected]. Please include File price intervals for classes that interest, does not impose any significant Number SR–Phlx–2011–128 on the participate in the Program. This burden on competition, and, by its subject line. terms, does not become operative for 30 prohibition applies to non-LEAP and Paper Comments LEAPS. The Exchange proposes to days from the date on which it was maintain this prohibition and codify it filed, or such shorter time as the • Send paper comments in triplicate in proposed new subparagraph (a)(i)(A) Commission may designate, it has to Elizabeth M. Murphy, Secretary, of Commentary .05 to Rule 1012. become effective pursuant to Section 19 Securities and Exchange Commission, For ease of reference, the Exchange is 19(b)(3)(A) of the Act and Rule 19b– 100 F Street, NE., Washington, DC 4(f)(6) thereunder.20 proposing to add the headings ‘‘$1 20549–1090. Strike Price Interval Program,’’ ‘‘Initial The Exchange has requested that the All submissions should refer to File and Additional Series,’’ and ‘‘LEAPS’’ to Commission waive the 30-day operative Number SR–Phlx–2011–128. This file Commentary .05 of Rule 1012. And delay. The Commission believes that finally, the Exchange is making non- waiver of the operative delay is number should be included on the substantive, technical changes to the consistent with the protection of subject line if e-mail is used. To help the proposed rule such as replacing the investors and the public interest Commission process and review your word ‘‘security’’ with the word ‘‘stock.’’ because the proposal is substantially comments more efficiently, please use The Exchange represents that it has similar to that of another exchange that only one method. The Commission will the necessary systems capacity to has been approved by the post all comments on the Commission’s support the increase in new options Commission.21 Therefore, the Internet Web site (http://www.sec.gov/ series that will result from the proposed Commission designates the proposal rules/sro.shtml). Copies of the streamlining changes to the Program. operative upon filing.22 submission, all subsequent amendments, all written statements 2. Statutory Basis At any time within 60 days of the filing of the proposed rule change, the with respect to the proposed rule The Exchange believes that its Commission summarily may change that are filed with the proposal is consistent with Section 6(b) temporarily suspend such rule change if Commission, and all written of the Act 17 in general, and furthers the it appears to the Commission that such communications relating to the objectives of Section 6(b)(5) of the Act 18 action is necessary or appropriate in the proposed rule change between the in particular, in that it is designed to public interest, for the protection of Commission and any person, other than promote just and equitable principles of investors, or otherwise in furtherance of those that may be withheld from the trade, to remove impediments to and the purposes of the Act. If the public in accordance with the perfect the mechanism of a free and Commission takes such action, the provisions of 5 U.S.C. 552, will be open market and a national market Commission shall institute proceedings available for Web site viewing and system, and, in general to protect to determine whether the proposed rule printing in the Commission’s Public investors and the public interest. In should be approved or disapproved. Reference Room, 100 F Street, NE., particular, the proposed rule change Washington, DC 20549, on official seeks to reduce investor confusion and 19 15 U.S.C. 78s(b)(3)(A). business days between the hours of 10 to simplify the provisions of the $1 20 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– a.m. and 3 p.m. Copies of such filing Strike Program. 4(f)(6)(iii) requires the Exchange to give the Commission written notice of the Exchange’s intent also will be available for inspection and B. Self-Regulatory Organization’s to file the proposed rule change, along with a brief copying at the principal office of the Statement on Burden on Competition description and text of the proposed rule change, Exchange. All comments received will at least five business days prior to the date of filing be posted without change; the The Exchange does not believe that of the proposed rule change, or such shorter time the proposed rule change will impose as designated by the Commission. The Commission Commission does not edit personal any burden on competition not has waived the five-day prefiling requirement in identifying information from this case. submissions. You should submit only 21 See Securities Exchange Act Release No. 65383 strikes above and below the price of the underlying (September 22, 2011) (SR–CBOE–2011–040) (order information that you wish to make stock. Since the price of the underlying stock approving proposed rule change to simplify the $1 publicly available. All submissions ($24.50) straddles the standard strikes of $20 and Strike Price Interval Program). should refer to File Number SR–Phlx– $25, no $2 wing is permitted between these 22 For purposes only of waiving the 30-day 2011–128 and should be submitted on standard strikes. operative delay, the Commission has considered the 17 15 U.S.C. 78f(b). proposed rule’s impact on efficiency, competition, or before October 25, 2011. 18 15 U.S.C. 78f(b)(5). and capital formation. See 15 U.S.C. 78c(f).

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For the Commission, by the Division of II. Self-Regulatory Organization’s existing market-wide circuit breakers. Trading and Markets, pursuant to delegated Statement of the Purpose of, and Among other things, the Committee authority.23 Statutory Basis for, the Proposed Rule noted that the interrelatedness of Elizabeth M. Murphy, Change today’s highly electronic markets Secretary. In its filing with the Commission, the warrants the need to review the present [FR Doc. 2011–25476 Filed 10–3–11; 8:45 am] Exchange included statements operation of the system-wide circuit breakers now in place. Specifically, the BILLING CODE 8011–01–P concerning the purpose of and basis for the proposed rule change and discussed Committee recommended that the any comments it received on the markets consider replacing the Dow SECURITIES AND EXCHANGE proposed rule change. The text of these Jones Industrial Average (‘‘DJIA’’) with ® COMMISSION statements may be examined at the the S&P 500 Index (‘‘S&P 500’’), places specified in Item IV below. The revising the 10%, 20%, and 30% Exchange has prepared summaries, set decline percentages, reducing the length [Release No. 34–65435; File No. SR– of trading halts, and allowing halts to be NASDAQ–2011–131] forth in sections A, B, and C below, of the most significant aspects of such triggered up to 3:30 p.m.9 Self-Regulatory Organizations; The statements. The exchanges and FINRA have taken Nasdaq Stock Market LLC; Notice of A. Self-Regulatory Organization’s into consideration the Committee’s Filing of Proposed Rule Change To Statement of the Purpose of, and recommendations, and with some Revise the Methodology for Statutory Basis for, the Proposed Rule modifications, have proposed changes Determining When to Halt Trading Due Change to market-wide circuit breakers that the to Extraordinary Market Volatility Exchange believes will provide for a 1. Purpose more meaningful measure in today’s September 28, 2011. The Exchange proposes to amend faster, more electronic markets, of when Pursuant to Section 19(b)(1) of the Exchange Rule 4121 to revise the to halt stocks on a market-wide basis as Securities Exchange Act of 1934 current methodology for determining a result of rapid market declines. (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 when to halt trading in all stocks due to Background notice is hereby given that on extraordinary market volatility. The September 27, 2011, The NASDAQ Exchange is proposing this rule change The Exchange adopted Rule 4121 Stock Market LLC (‘‘NASDAQ’’ or in consultation with other equity, when it registered as an exchange in ‘‘Exchange’’) filed with the Securities options, and futures markets, the January of 2006.10 Rule 4121 provides and Exchange Commission (‘‘SEC’’ or Financial Industry Regulatory that upon SEC request Nasdaq will halt ‘‘Commission’’) the proposed rule Authority, Inc. (‘‘FINRA’’), and staffs of all domestic trading in both securities change as described in Items I and II, the Commission and the Commodity listed on Nasdaq and securities traded below, which Items have been prepared Futures Trading Commission. on Nasdaq pursuant to unlisted trading Since May 6, 2010, when the markets by the Exchange. The Commission is privileges if other major securities experienced excessive volatility in an publishing this notice to solicit markets initiate marketwide trading abbreviated time period, i.e., the ‘‘flash comments on the proposed rule change halts in response to extraordinary crash,’’ the exchanges and FINRA have from interested persons. market conditions. In effect, the implemented market-wide measures Exchange agreed via Rule 4121 to abide I. Self-Regulatory Organization’s designed to restore investor confidence by marketwide halts called for by the Statement of the Terms of Substance of by reducing the potential for excessive SEC in conjunction with other listing the Proposed Rule Change market volatility. Among the measures markets. The standards governing such adopted include pilot plans for stock- halts were adopted in 1988 as part of an The Exchange, pursuant to Section by-stock trading pauses 5 and related effort by the securities and futures 19(b)(1) of the Act 3 and Rule 19b–4 changes to the clearly erroneous markets to implement a coordinated thereunder,4 proposes to amend execution rules 6 and more stringent means to address potentially Exchange Rule 4121 to revise the market maker quoting requirements.7 In destabilizing market volatility.11 methodology for determining when to addition, on April 5, 2011, the equities The purpose of a marketwide halt, as halt trading in all stocks due to exchanges and FINRA filed a plan embodied in Rule 4121, is to enable pursuant to Rule 608 of Regulation NMS extraordinary market volatility. The market participants to establish an to address extraordinary market proposal is made in conjunction with all equilibrium between buying and selling volatility (the ‘‘Limit Up-Limit Down national securities exchanges and the interest and to ensure that market Plan’’).8 As proposed, the Limit Up- Financial Industry Regulatory Authority participants have an opportunity to Limit Down Plan is designed to prevent (‘‘FINRA’’). become aware of and respond to trades in individual NMS stocks from The text of the proposed rule change significant price movements. occurring outside specified price bands. is available on the Exchange’s Web site Importantly, the market-wide circuit The Joint CFTC–SEC Advisory breakers were not intended to prevent at http://nasdaq.cchwallstreet.com, at Committee on Emerging Regulatory markets from adjusting to new price the principal office of the Exchange, at Issues (‘‘Committee’’) has recommended levels; rather, they provide for a speed the Commission’s Public Reference that, in addition to the initiatives Room, and at the Commission’s Web already adopted or proposed, the site at http://www.sec.gov. 9 See Summary Report of the Committee, markets should consider reforming the ‘‘Recommendations Regarding Regulatory Responses to the Market Events of May 6, 2010’’ 23 17 CFR 200.30–3(a)(12). 5 NASDAQ Rule 4120(a)(11). (Feb, 18, 2011). 1 15 U.S.C. 78s(b)(1). 6 NASDAQ Rule 11890. 10 See Securities Exchange Act Release No. 53128 2 17 CFR 240.19b–4. 7 NASDAQ Rule 4613. (Jan. 13, 2006). 3 15 U.S.C. 78s(b)(1). 8 See Securities Exchange Act Release No. 64547 11 See Securities Exchange Act Release No. 26198 4 17 CFR 240.19b–4. (May 25, 2011), 76 FR 31647 (June 1, 2011). (Oct. 19, 1988).

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bump for extremely rapid market Accordingly, the Exchange proposes to once, on October 27, 1997.15 declines.12 amend Rule 4121 to create the following Accordingly, to reflect the potential that The current standard, set forth in the standards: (i) Replace the DJIA with the a lower, yet still significant decline may rules of other exchanges,13 provides for S&P 500; (ii) replace the quarterly warrant a market-wide trading halt, the Level 1, 2, and 3 declines and specified calendar recalculation of Rule 80B Exchange proposes to lower the market trading halts following such declines. triggers with daily recalculations; (iii) decline percentage thresholds. The values of Levels 1, 2 and 3 are replace the 10%, 20%, and 30% market As further proposed, the Exchange calculated at the beginning of each decline percentages with 7%, 13%, and would halt trading based on a Level 1 calendar quarter, using 10%, 20% and 20% market decline percentages; (iv) or Level 2 Market Decline only once per 30%, respectively, of the average closing modify the length of the trading halts day. For example, if a Level 1 Market value of the DJIA for the month prior to associated with each market decline Decline were to occur and trading were the beginning of the quarter. Each level; and (v) modify the times when a halted, following the reopening of percentage calculation is rounded to the trading halt may be triggered. The trading, the Exchange would not halt nearest fifty points to create the Levels’ Exchange believes that these proposed the market again unless a Level 2 trigger points. The values then remain amendments update the rule to reflect Market Decline were to occur. Likewise, in effect until the next quarterly today’s high-speed, highly electronic following the reopening of trading after calculation, notwithstanding whether trading market while still ensuring that a Level 2 Market Decline, the Exchange the DJIA has moved and a Level 1, 2, or market participants have an opportunity would not halt trading again unless a 3 decline is no longer equal to an actual to become aware of and respond to Level 3 Market Decline were to occur, 10%, 20%, or 30% decline in the most significant price movements. at which point, trading in all stocks recent closing value of the DJIA. would be halted until the primary First, the Exchange proposes to Once a marketwide circuit breaker is market opens the next trading day. replace the DJIA with the S&P 500. The in effect, trading in all stocks halt for the Fourth, to correspond with the lower Exchange believes that because the S&P time periods specified below: percentages associated with triggering a 500 is based on the trading prices of 500 trading halt, the Exchange also proposes stocks, as compared to the 30 stocks that Level 1 Halt to shorten the length of the market-wide comprise the DJIA, the S&P 500 trading halts associated with each Level. anytime before 2 p.m.—one hour; represents a broader base of securities As proposed, a Level 1 or 2 Market at or after 2 p.m. but before 2:30 against which to measure whether Decline occurring after 9:30 a.m. Eastern p.m.—30 minutes; extraordinary market-wide volatility is and up to and including 3:25 p.m. at or after 2:30 p.m.—trading shall occurring. In addition, as noted by the Eastern, would result in a trading halt continue, unless there is a Level 2 Committee, using an index that Halt. in all stocks for 15 minutes. correlates closely with derivative The Exchange believes that by Level 2 Halt products, such as the E–Mini and SPY, reducing the percentage threshold, will allow for a better cross-market anytime before 1 p.m.—two hours; coupled with the reduced length of a measure of market volatility. at or after 1 p.m. but before 2 p.m.— trading halt, the proposed rule would one hour; Second, the Exchange proposes to allow for trading halts for serious at or after 2 p.m.—trading shall halt change the recalculation of the trigger market declines, while at the same time, and not resume for the rest of the values from once every calendar quarter would minimize disruption to the day. to daily. The Exchange believes that market by allowing for trading to updating the trigger values daily will continue after the proposed more- Level 3 Halt better reflect current market conditions. abbreviated trading halt. The Exchange at any time—trading shall halt and In particular, a daily recalculation will believes that in today’s markets, where not resume for the rest of the day. ensure that the percentage drop triggers trading information travels in micro- Unless stocks are halted for the relate to current market conditions, and second speed, a 15-minute trading halt remainder of the trading day, price are not compared to what may be stale strikes the appropriate balance between indications are disseminated during a market conditions. As noted in the the need to halt trading for market Rule 80B trading halt for stocks that proposed rule, the daily calculations of participants to assess the market, while comprise the DJIA. the trigger values will be published at the same time reducing the time that before the trading day begins.14 the market is halted. Proposed Amendments Third, the Exchange proposes to Finally, because the proposed Level 1 As noted above, the Exchange, other decrease the current Level 1, 2, and 3 and Level 2 trading halts will now be 15 equities, options, and futures markets, declines of 10%, 20%, and 30% to a minutes, the Exchange proposes and FINRA propose to amend the Level 1 Market Decline of 7%, a Level amending the rule to allow for a Level market-wide circuit breakers to take into 2 Market Decline of 13%, and Level 3 1 or 2 Market Decline to trigger a trading consideration the recommendations of Market Decline of 20%. In particular, as halt up to 3:25 p.m. (or, in the case of the Committee, and to provide for more demonstrated by the May 6, 2010 flash scheduled early closure, at 12:25 p.m.). meaningful measures in today’s markets crash, the current Level 1 10% decline Under the current rule, a trading halt of when to halt trading in all stocks. may be too high a threshold before cannot be triggered after 2:30 p.m., and determining whether to halt trading this time corresponds to the need for the 12 Id. across all securities. In fact, since markets both to reopen following a 30- 13 The rule was last amended in 1998, when adoption, the markets have halted only minute halt and to engage in a fair and declines based on specified point drops in the DJIA orderly closing process. However, as the were replaced with the current methodology of using a percentage decline that is recalculated 14 The Exchange and other markets will advise via markets experienced on May 6, 2010, quarterly. See Securities Exchange Act Release No. Trader Update the specific methodology for 39846 (April 9, 1998), 63 FR 18477 (April 15, 1998) publishing the daily calculations, as well as the 15 At that time, the triggers were based on (SR–NYSE–98–06, SR–Amex–98–09, SR–BSE–98– manner by which the markets will halt trading in absolute declines in the DJIA (350 point decrease 06, SR–CHX–98–08, SR–NASD–98–27, and SR– all stocks should a Rule 4121 trading halt be for a Level 1 halt and 550 point decrease for a Level Phlx–98–15). triggered. 2 halt).

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even if the Level 1 decline had occurred change also is designed to support the approved, the proposed NMS Plan to that day, because the market decline principles of Section 11A(a)(1) 18 of the establish a limit-up/limit-down occurred after 2:30 p.m., it would not Act in that it seeks to assure fair mechanism for individual securities? 20 have triggered a halt under the current competition among brokers and dealers • To what extent could the rule. The Committee recommended that and among exchange markets. The concurrent triggering of single stock trading halts be triggered up to 3:30 p.m. Exchange believes that the proposed circuit breakers in many S&P 500 Index The Exchange agrees that the proposed rule meets these requirements in that it stocks lead to difficulties in calculating amendments must strike the appropriate promotes transparency and uniformity the index? Would the triggering of many balance between permitting trading across markets concerning decisions to single stock circuit breakers in a general halts as late in the day as feasible pause [sic] trading in a security when market downturn cause the index without interrupting the closing there are significant price movements. calculation to become stale and thereby process. delay the triggering of the market-wide Accordingly, to accommodate existing B. Self-Regulatory Organization’s circuit breaker? Exchange rules concerning closing Statement on Burden on Competition • Should the market-wide circuit procedures, including the publication of The Exchange does not believe that breaker be triggered if a sufficient imbalance information beginning at 3:50 the proposed rule change will impose number of single-stock circuit breakers p.m. and the restrictions on entry and any burden on competition not or price limits are triggered, and cancellation of market on close necessary or appropriate in furtherance materially affect calculations of the S&P (‘‘MOC’’) and limit on close (‘‘LOC’’) of the purposes of the Act. 500 Index? orders after 3:45 p.m.,16 the Exchange • Should market centers implement C. Self-Regulatory Organization’s proposes that the last Level 1 or Level rules that mandate cancellation of Statement on Comments on the 2 Market Decline trading halt should pending orders in the event a market- Proposed Rule Change Received From begin no later than 3:25 p.m. (or, in the wide circuit breaker is triggered? If so, Members, Participants, or Others case of scheduled early closure, at 12:25 should such a rule require cancellation p.m.). The Exchange proposes 3:25 p.m. No written comments were either of all orders or only certain order types as the cut-off time so that there is time solicited or received. (e.g., limit orders)? Should all trading following the 15-minute trading halt for III. Date of Effectiveness of the halts trigger such cancellation policies the markets to reopen before the 3:45 Proposed Rule Change and Timing for or should the cancellation policies cut-off for entry and cancellation of Commission apply only to a Level 3 Market Decline? MOC and LOC orders under Exchange • Should some provision be made to rules. Action end the regular trading session if a Under the proposed rule, a Level 3 Within 45 days of the date of market decline suddenly occurs after Market Decline would halt trading for publication of this notice in the Federal 3:25 p.m. but does not reach the 20% the remainder of the trading day, level? Register or within such longer period (i) • including any trading that may take As the Commission may designate up to In the event of a Level 3 Market place after 4 p.m., Eastern, and would 90 days of such date if it finds such Decline, should some provision be made not resume until the next trading day. longer period to be appropriate and for the markets to hold a closing In addition to these proposed auction? publishes its reasons for so finding or • changes, the Exchange proposes to add (ii) as to which the Exchange consents, Should the primary market have a to Rule 4121 how the markets will the Commission will: longer period (e.g., 30 minutes) to reopen following a 15-minute trading (A) By order approve or disapprove reopen trading following a Level 2 halt. In particular, the Exchange such proposed rule change, or Market Decline before trading resumes proposes that if the primary market in other venues? (B) Institute proceedings to determine • halts trading in all stocks, all markets whether the proposed rule change In the event of a Level 3 Market will halt trading in those stocks until should be disapproved. Decline, should the markets wait for the the primary market has resumed trading primary market to reopen trading in a or notice has been provided by the IV. Solicitation of Comments particular security on the next trading primary market that trading may Interested persons are invited to day before trading in that security resume. As further proposed, if the submit written data, views, and resumes? primary market does not re-open a arguments concerning the foregoing, Comments may be submitted by any security within 15 minutes following including whether the proposed of the following methods: the end of the trading halt, other changes to the market-wide circuit Electronic Comments markets may resume trading in that breaker regime are consistent with the • Use the Commission’s Internet security. Act. The Commission specifically comment form (http://www.sec.gov/ requests comment on the following: 2. Statutory Basis • As discussed above, the proposed rules/sro.shtml); or • Send an e-mail to rule- The statutory basis for the proposed rule change would narrow the [email protected]. Please include File rule change is Section 6(b)(5) of the percentage market declines that would Number SR–NASDAQ–2011–131 on the Act,17 which requires the rules of an trigger a market-wide halt in trading. subject line. exchange to promote just and equitable How would the proposed changes principles of trade, to remove interact with the existing single-stock 19 NASDAQ–2011–067; SR–NYSE–2011–21; SR– impediments to and perfect the circuit breaker pilot program or, if NYSEAmex–2011–32; SR–NYSEArca–2011–26; SR– mechanism of a free and open market NSX–2011–06; SR–Phlx–2011–64) (approving the and a national market system and, in 18 15 U.S.C. 78k–1(a)(1). ‘‘Phase III Pilot Program’’). The Phase III Pilot general, to protect investors and the 19 See Securities Exchange Act Release No. 64735 Program has been extended through January 2012. public interest. The proposed rule (June 23, 2011), 76 FR 38243 (June 29, 2011) (SR– See, e.g., Securities Exchange Act Release 65094 BATS–2011–016; SR–BYX–2011–011; SR–BX– (August 10, 2011), 76 FR 50779 (August 16, 2011) 2011–025; SR–CBOE–2011–049; SR–CHX–2011–09; (SR–NASDAQ–2011–011). 16 See NASDAQ Rule 4754(b). SR–EDGA–2011–15; SR–EDGX–2011–14; SR– 20 See Securities Exchange Act Release No. 64547 17 15 U.S.C. 78f(b)(5). FINRA–2011–023; SR–ISE–2011–028; SR– (May 25, 2011), 76 FR 31647 (June 1, 2011).

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Paper Comments SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s Statement of the Purpose of, and • COMMISSION Send paper comments in triplicate Statutory Basis for, the Proposed Rule to Elizabeth M. Murphy, Secretary, [Release No. 34–65434; File No. SR–Phlx– Change Securities and Exchange Commission, 2011–129] 100 F Street, NE., Washington, DC 1. Purpose 20549–1090. Self-Regulatory Organizations; Notice The Exchange proposes to amend of Filing of Proposed Rule Change by Exchange Rule 133 to revise the current All submissions should refer to File NASDAQ OMX PHLX LLC Relating to Number SR–NASDAQ–2011–131. This methodology for determining when to Trading Halts Due to Extraordinary halt trading in all stocks due to file number should be included on the Market Volatility extraordinary market volatility. The subject line if e-mail is used. To help the September 28, 2011. Exchange is proposing this rule change Commission process and review your in consultation with other equity, comments more efficiently, please use Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 options, and futures markets, the only one method. The Commission will Financial Industry Regulatory post all comments on the Commission’s (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 notice is hereby given that on Authority, Inc. (‘‘FINRA’’), and staffs of Internet Web site (http://www.sec.gov/ the Commission and the Commodity rules/sro.shtml). Copies of the September 27, 2011, NASDAQ OMX PHLX LLC (‘‘Phlx’’ or ‘‘Exchange’’) filed Futures Trading Commission. submission, all subsequent Since May 6, 2010, when the markets amendments, all written statements with the Securities and Exchange Commission (‘‘SEC’’ or ‘‘Commission’’) experienced excessive volatility in an with respect to the proposed rule the proposed rule change as described abbreviated time period, i.e., the ‘‘flash change that are filed with the in Items I and II, below, which Items crash,’’ the exchanges and FINRA have Commission, and all written have been prepared by the Exchange. implemented market-wide measures communications relating to the The Commission is publishing this designed to restore investor confidence proposed rule change between the notice to solicit comments on the by reducing the potential for excessive Commission and any person, other than proposed rule change from interested market volatility. Among the measures those that may be withheld from the persons. adopted include pilot plans for stock- public in accordance with the by-stock trading pauses 3 and related provisions of 5 U.S.C. 552, will be I. Self-Regulatory Organization’s changes to the clearly erroneous available for Web site viewing and Statement of the Terms of Substance of execution rules.4 In addition, on April printing in the Commission’s Public the Proposed Rule Change 5, 2011, the equities exchanges and Reference Room, 100 F Street, NE., The Exchange proposes to amend FINRA filed a plan pursuant to Rule 608 Washington, DC 20549, on official Exchange Rule 133 to revise the of Regulation NMS to address business days between the hours of 10 methodology for determining when to extraordinary market volatility (the 5 a.m. and 3 p.m. Copies of such filing halt trading in all stocks due to ‘‘Limit Up-Limit Down Plan’’). As also will be available for inspection and extraordinary market volatility. The proposed, the Limit Up-Limit Down copying at the principal office of the proposal is made in conjunction with all Plan is designed to prevent trades in individual NMS stocks from occurring Exchange. All comments received will national securities exchanges and the outside specified price bands. be posted without change; the Financial Industry Regulatory Authority Commission does not edit personal (‘‘FINRA’’). The Joint CFTC–SEC Advisory Committee on Emerging Regulatory identifying information from The text of the proposed rule change Issues (‘‘Committee’’) has recommended submissions. You should submit only is available on the Exchange’s Web site at http://www.nasdaqtrader.com/ that, in addition to the initiatives information that you wish to make micro.aspx?id=PHLXRulefilings, at the already adopted or proposed, the publicly available. All submissions principal office of the Exchange, at the markets should consider reforming the should refer to File Number SR– Commission’s Public Reference Room, existing market-wide circuit breakers. NASDAQ–2011–131 and should be and at the Commission’s Web site at Among other things, the Committee submitted on or before October 25, http://www.sec.gov. noted that the interrelatedness of 2011. today’s highly electronic markets II. Self-Regulatory Organization’s warrants the need to review the present For the Commission, by the Division of Statement of the Purpose of, and Trading and Markets, pursuant to delegated operation of the system-wide circuit Statutory Basis for, the Proposed Rule authority.21 breakers now in place. Specifically, the Change Elizabeth M. Murphy, Committee recommended that the In its filing with the Commission, the markets consider replacing the Dow Secretary. Exchange included statements Jones Industrial Average (‘‘DJIA’’) with [FR Doc. 2011–25517 Filed 10–3–11; 8:45 am] concerning the purpose of and basis for the S&P 500® Index (‘‘S&P 500’’), BILLING CODE 8011–01–P the proposed rule change and discussed revising the 10%, 20%, and 30% any comments it received on the decline percentages, reducing the length proposed rule change. The text of these of trading halts, and allowing halts to be statements may be examined at the triggered up to 3:30 p.m.6 places specified in Item IV below. The Exchange has prepared summaries, set 3 PHLX Rule 3120. forth in sections A, B, and C below, of 4 PHLX Rule 3312. the most significant aspects of such 5 See Securities Exchange Act Release No. 64547 statements. (May 25, 2011), 76 FR 31647 (June 1, 2011). 6 See Summary Report of the Committee, ‘‘Recommendations Regarding Regulatory 1 15 U.S.C. 78s(b)(1). Responses to the Market Events of May 6, 2010’’ 21 17 CFR 200.30–3(a)(12). 2 17 CFR 240.19b–4. (Feb, 18, 2011).

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The exchanges and FINRA have taken decline in the most recent closing value correlates closely with derivative into consideration the Committee’s of the DJIA. products, such as the E-Mini and SPY, recommendations, and with some Once a marketwide circuit breaker is will allow for a better cross-market modifications, have proposed changes in effect, trading in all stocks halt for the measure of market volatility. to market-wide circuit breakers that the time periods specified below: Second, the Exchange proposes to Exchange believes will provide for a Level 1 Halt change the recalculation of the trigger more meaningful measure in today’s values from once every calendar quarter faster, more electronic markets, of when Anytime before 2 p.m.—one hour; to daily. The Exchange believes that to halt stocks on a market-wide basis as at or after 2 p.m. but before 2:30 updating the trigger values daily will a result of rapid market declines. p.m.—30 minutes; better reflect current market conditions. at or after 2:30 p.m.—trading shall In particular, a daily recalculation will Background continue, unless there is a Level 2 Halt. ensure that the percentage drop triggers The Exchange adopted Rule 133 in Level 2 Halt relate to current market conditions, and October 1988 as part of an effort by the Anytime before 1 p.m.—two hours; are not compared to what may be stale securities and futures markets to at or after 1 p.m. but before 2 p.m.— market conditions. As noted in the implement a coordinated means to one hour; proposed rule, the daily calculations of address potentially destabilizing market at or after 2 p.m.—trading shall halt the trigger values will be published before the trading day begins.10 volatility.7 Rule 133 provides for and not resume for the rest of the day. market-wide halts in trading at specified Third, the Exchange proposes to Level 3 Halt decrease the current Level 1, 2, and 3 levels in order to promote stability and declines of 10%, 20%, and 30% to a investor confidence during a period of At any time—trading shall halt and Level 1 Market Decline of 7%, a Level significant stress. As the Commission not resume for the rest of the day. 2 Market Decline of 13%, and Level 3 noted in its approval order, Rule 133 Unless stocks are halted for the Market Decline of 20%. In particular, as was intended to enable market remainder of the trading day, price demonstrated by the May 6, 2010 flash participants to establish an equilibrium indications are disseminated during a crash, the current Level 1 10% decline between buying and selling interest and Rule 80B trading halt for stocks that may be too high a threshold before to ensure that market participants have comprise the DJIA. determining whether to halt trading an opportunity to become aware of and Proposed Amendments across all securities. In fact, since respond to significant price movements. As noted above, the Exchange, other adoption, the markets have halted only Importantly, the market-wide circuit once, on October 27, 1997.11 breakers were not intended to prevent equities, options, and futures markets, and FINRA propose to amend the Accordingly, to reflect the potential that markets from adjusting to new price a lower, yet still significant decline may levels; rather, they provide for a speed market-wide circuit breakers to take into consideration the recommendations of warrant a market-wide trading halt, the bump for extremely rapid market Exchange proposes to lower the market declines.8 the Committee, and to provide for more meaningful measures in today’s markets decline percentage thresholds. 9 In its current form, the rule provides of when to halt trading in all stocks. As further proposed, the Exchange for Level 1, 2, and 3 declines and Accordingly, the Exchange proposes to would halt trading based on a Level 1 specified trading halts following such amend Rule 133 to create the following or Level 2 Market Decline only once per declines. The values of Levels 1, 2 and standards: (i) Replace the DJIA with the day. For example, if a Level 1 Market 3 are calculated at the beginning of each S&P 500; (ii) replace the quarterly Decline were to occur and trading were calendar quarter, using 10%, 20% and calendar recalculation of Rule 133 halted, following the reopening of 30%, respectively, of the average closing triggers with daily recalculations; (iii) trading, the Exchange would not halt value of the DJIA for the month prior to replace the 10%, 20%, and 30% market the market again unless a Level 2 the beginning of the quarter. Each decline percentages with 7%, 13%, and Market Decline were to occur. Likewise, percentage calculation is rounded to the 20% market decline percentages; (iv) following the reopening of trading after nearest fifty points to create the Levels’ modify the length of the trading halts a Level 2 Market Decline, the Exchange trigger points. The Exchange associated with each market decline would not halt trading again unless a disseminates the new trigger levels level; and (v) modify the times when a Level 3 Market Decline were to occur, quarterly to the media and via an trading halt may be triggered. The at which point, trading in all stocks Information Memo and is [sic] available Exchange believes that these proposed would be halted until the primary on the Exchange’s website. The values amendments update the rule to reflect market opens the next trading day. then remain in effect until the next today’s high-speed, highly electronic Fourth, to correspond with the lower quarterly calculation, notwithstanding trading market while still ensuring that percentages associated with triggering a whether the DJIA has moved and a market participants have an opportunity trading halt, the Exchange also proposes Level 1, 2, or 3 decline is no longer to become aware of and respond to to shorten the length of the market-wide equal to an actual 10%, 20%, or 30% significant price movements. trading halts associated with each Level. First, the Exchange proposes to As proposed, a Level 1 or 2 Market 7 See Securities Exchange Act Release No. 26198 replace the DJIA with the S&P 500. The Decline occurring after 9:30 a.m. Eastern (Oct. 19, 1988). Exchange believes that because the S&P 8 Id. 500 is based on the trading prices of 500 10 The Exchange and other markets will advise via 9 The rule was last amended in 1998, when Trader Update the specific methodology for declines based on specified point drops in the DJIA stocks, as compared to the 30 stocks that publishing the daily calculations, as well as the were replaced with the current methodology of comprise the DJIA, the S&P 500 manner by which the markets will halt trading in using a percentage decline that is recalculated represents a broader base of securities all stocks should a Rule 133 trading halt be quarterly. See Securities Exchange Act Release No. against which to measure whether triggered. 39846 (April 9, 1998), 63 FR 18477 (April 15, 1998) 11 At that time, the triggers were based on (SR–NYSE–98–06, SR–Amex-98–09, SR–BSE–98– extraordinary market-wide volatility is absolute declines in the DJIA (350 point decrease 06, SR–CHX–98–08, SR–NASD–98–27, and SR– occurring. In addition, as noted by the for a Level 1 halt and 550 point decrease for a Level Phlx–98–15). Committee, using an index that 2 halt).

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and up to and including 3:25 p.m. including any trading that may take 90 days of such date if it finds such Eastern, would result in a trading halt place after 4:00 p.m., Eastern, and longer period to be appropriate and in all stocks for 15 minutes. would not resume until the next trading publishes its reasons for so finding or The Exchange believes that by day. (ii) as to which the Exchange consents, reducing the percentage threshold, In addition to these proposed the Commission will: coupled with the reduced length of a changes, the Exchange proposes to add (A) By order approve or disapprove trading halt, the proposed rule would to Rule 133 how the markets will reopen such proposed rule change, or allow for trading halts for serious following a 15-minute trading halt. In (B) Institute proceedings to determine market declines, while at the same time, particular, the Exchange proposes that if whether the proposed rule change would minimize disruption to the the primary market halts trading in all should be disapproved. market by allowing for trading to stocks, all markets will halt trading in continue after the proposed more- those stocks until the primary market IV. Solicitation of Comments abbreviated trading halt. The Exchange has resumed trading or notice has been Interested persons are invited to believes that in today’s markets, where provided by the primary market that submit written data, views, and trading information travels in micro- trading may resume. As further arguments concerning the foregoing, second speed, a 15-minute trading halt proposed, if the primary market does including whether the proposed strikes the appropriate balance between not re-open a security within 15 changes to the market-wide circuit the need to halt trading for market minutes following the end of the trading breaker regime are consistent with the participants to assess the market, while halt, other markets may resume trading Act. The Commission specifically at the same time reducing the time that in that security. requests comment on the following: the market is halted. • As discussed above, the proposed 2. Statutory Basis Finally, because the proposed Level 1 rule change would narrow the and Level 2 trading halts will now be 15 The statutory basis for the proposed percentage market declines that would minutes, the Exchange proposes rule change is Section 6(b)(5) of the trigger a market-wide halt in trading. amending the rule to allow for a Level Act,12 which requires the rules of an How would the proposed changes 1 or 2 Market Decline to trigger a trading exchange to promote just and equitable interact with the existing single-stock halt up to 3:25 p.m. (or, in the case of principles of trade, to remove circuit breaker pilot program 14 or, if scheduled early closure, at 12:25 p.m.). impediments to and perfect the approved, the proposed NMS Plan to Under the current rule, a trading halt mechanism of a free and open market establish a limit-up/limit-down cannot be triggered after 2:30 p.m., and and a national market system and, in mechanism for individual securities? 15 this time corresponds to the need for the general, to protect investors and the • To what extent could the markets both to reopen following a 30- public interest. The proposed rule concurrent triggering of single stock minute halt and to engage in a fair and change also is designed to support the circuit breakers in many S&P 500 Index orderly closing process. However, as the principles of Section 11A(a)(1) 13 of the stocks lead to difficulties in calculating markets experienced on May 6, 2010, Act in that it seeks to assure fair the index? Would the triggering of many even if the Level 1 decline had occurred competition among brokers and dealers single stock circuit breakers in a general that day, because the market decline and among exchange markets. The market downturn cause the index occurred after 2:30 p.m., it would not Exchange believes that the proposed calculation to become stale and thereby have triggered a halt under the current rule meets these requirements in that it delay the triggering of the market-wide rule. The Committee recommended that promotes transparency and uniformity circuit breaker? trading halts be triggered up to 3:30 p.m. across markets concerning decisions to • Should the market-wide circuit The Exchange agrees that the proposed pause [sic] trading in a security when breaker be triggered if a sufficient amendments must strike the appropriate there are significant price movements. balance between permitting trading number of single-stock circuit breakers halts as late in the day as feasible B. Self-Regulatory Organization’s or price limits are triggered, and without interrupting the closing Statement on Burden on Competition materially affect calculations of the S&P 500 Index? process. The Exchange does not believe that • Accordingly, to accommodate existing Should market centers implement the proposed rule change will impose rules that mandate cancellation of rules of other exchanges concerning any burden on competition not closing procedures, including the pending orders in the event a market- necessary or appropriate in furtherance wide circuit breaker is triggered? If so, publication of imbalance information of the purposes of the Act. beginning at 3:50 p.m. and the should such a rule require cancellation restrictions on entry and cancellation of C. Self-Regulatory Organization’s of all orders or only certain order types market on close (‘‘MOC’’) and limit on Statement on Comments on the (e.g., limit orders)? Should all trading close (‘‘LOC’’) orders after 3:45 p.m., the Proposed Rule Change Received From halts trigger such cancellation policies Exchange proposes that the last Level 1 Members, Participants, or Others 14 or Level 2 Market Decline trading halt No written comments were either See Securities Exchange Act Release No. 64735 should begin no later than 3:25 p.m. (or, (June 23, 2011), 76 FR 38243 (June 29, 2011) (SR– solicited or received. BATS–2011–016; SR–BYX–2011–011; SR–BX– in the case of scheduled early closure, 2011–025; SR–CBOE–2011–049; SR–CHX–2011–09; at 12:25 p.m.). The Exchange proposes III. Date of Effectiveness of the SR–EDGA–2011–15; SR–EDGX–2011–14; SR– 3:25 p.m. as the cut-off time so that Proposed Rule Change and Timing for FINRA–2011–023; SR–ISE–2011–028; SR– there is time following the 15-minute Commission Action NASDAQ–2011–067; SR–NYSE–2011–21; SR– NYSEAmex–2011–32; SR–NYSEArca–2011–26; SR– trading halt for the markets to reopen Within 45 days of the date of NSX–2011–06; SR–Phlx–2011–64) (approving the before the 3:45 cut-off for entry and publication of this notice in the Federal ‘‘Phase III Pilot Program’’). The Phase III Pilot cancellation of MOC and LOC orders Register or within such longer period (i) Program has been extended through January 2012. under Exchange rules. See, e.g., Securities Exchange Act Release 65094 as the Commission may designate up to (August 10, 2011), 76 FR 50779 (August 16, 2011) Under the proposed rule, a Level 3 (SR–NASDAQ–2011–011). Market Decline would halt trading for 12 15 U.S.C. 78f(b)(5). 15 See Securities Exchange Act Release No. 64547 the remainder of the trading day, 13 15 U.S.C. 78k–1(a)(1). (May 25, 2011), 76 FR 31647 (June 1, 2011).

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or should the cancellation policies copying at the principal office of the II. Self-Regulatory Organization’s apply only to a Level 3 Market Decline? Exchange. All comments received will Statement of the Purpose of, and • Should some provision be made to be posted without change; the Statutory Basis for, the Proposed Rule end the regular trading session if a Commission does not edit personal Change market decline suddenly occurs after identifying information from In its filing with the Commission, the 3:25 p.m. but does not reach the 20% submissions. You should submit only self-regulatory organization included level? information that you wish to make • statements concerning the purpose of, In the event of a Level 3 Market publicly available. All submissions and basis for, the proposed rule change Decline, should some provision be made should refer to File Number SR–Phlx– and discussed any comments it received for the markets to hold a closing 2011–129 and should be submitted on on the proposed rule change. The text auction? or before October 25, 2011. of those statements may be examined at • Should the primary market have a For the Commission, by the Division of the places specified in Item IV below. longer period (e.g., 30 minutes) to Trading and Markets, pursuant to delegated The Exchange has prepared summaries, reopen trading following a Level 2 authority.16 set forth in sections A, B, and C below, Market Decline before trading resumes Elizabeth M. Murphy, of the most significant parts of such in other venues? Secretary. statements. • In the event of a Level 3 Market Decline, should the markets wait for the [FR Doc. 2011–25515 Filed 10–3–11; 8:45 am] A. Self-Regulatory Organization’s primary market to reopen trading in a BILLING CODE 8011–01–P Statement of the Purpose of, and particular security on the next trading Statutory Basis for, the Proposed Rule day before trading in that security Change SECURITIES AND EXCHANGE resumes? COMMISSION 1. Purpose Comments may be submitted by any of the following methods: [Release No. 34–65432; File No. SR– The Exchange proposes to amend NYSEAMEX–2011–73] NYSE Amex Equities Rule 80B to revise Electronic Comments the current methodology for • Use the Commission’s Internet Self-Regulatory Organizations; NYSE determining when to halt trading in all comment form (http://www.sec.gov/ Amex LLC; Notice of Filing of stocks due to extraordinary market rules/sro.shtml); or Proposed Rule Change Amending volatility. The Exchange is proposing • Send an e-mail to rule- NYSE Amex Equities Rule 80B To this rule change in consultation with [email protected]. Please include File Revise the Current Methodology for other equity, options, and futures Number SR–Phlx–2011–129 on the Determining When To Halt Trading in markets, the Financial Industry subject line. All Stocks Due to Extraordinary Market Regulatory Authority, Inc. (‘‘FINRA’’), Volatility and staffs of the Commission and the Paper Comments Commodity Futures Trading September 28, 2011. • Send paper comments in triplicate Commission. Pursuant to Section 19(b)(1) 1 of the to Elizabeth M. Murphy, Secretary, Since May 6, 2010, when the markets Securities Exchange Act of 1934 (the Securities and Exchange Commission, experienced excessive volatility in an ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 100 F Street, NE., Washington, DC abbreviated time period, i.e., the ‘‘flash notice is hereby given that, on 20549–1090. crash,’’ the exchanges and FINRA have September 27, 2011, NYSE Amex LLC All submissions should refer to File implemented market-wide measures (the ‘‘Exchange’’ or ‘‘NYSE Amex’’) filed designed to restore investor confidence Number SR–Phlx–2011–129. This file with the Securities and Exchange number should be included on the by reducing the potential for excessive Commission (the ‘‘Commission’’) the market volatility. Among the measures subject line if e-mail is used. To help the proposed rule change as described in Commission process and review your adopted include pilot plans for stock- Items I and II below, which Items have by-stock trading pauses 4 and related comments more efficiently, please use been prepared by the self-regulatory only one method. The Commission will changes to the clearly erroneous organization. The Commission is 5 post all comments on the Commission’s execution rules and more stringent publishing this notice to solicit 6 Internet Web site (http://www.sec.gov/ market maker quoting requirements. In comments on the proposed rule change addition, on April 5, 2011, the equities rules/sro.shtml). Copies of the from interested persons. submission, all subsequent exchanges and FINRA filed a plan amendments, all written statements I. Self-Regulatory Organization’s pursuant to Rule 608 of Regulation NMS with respect to the proposed rule Statement of the Terms of Substance of to address extraordinary market change that are filed with the the Proposed Rule Change volatility (the ‘‘Limit Up-Limit Down Plan’’).7 As proposed, the Limit Up- Commission, and all written The Exchange proposes to NYSE communications relating to the Limit Down Plan is designed to prevent Amex Equities Rule 80B to revise the trades in individual NMS stocks from proposed rule change between the current methodology for determining Commission and any person, other than occurring outside specified price bands. when to halt trading in all stocks due to The Joint CFTC–SEC Advisory those that may be withheld from the extraordinary market volatility. The text public in accordance with the Committee on Emerging Regulatory of the proposed rule change is available Issues (‘‘Committee’’) has recommended provisions of 5 U.S.C. 552, will be at the Exchange, the Commission’s available for Web site viewing and that, in addition to the initiatives Public Reference Room, and http:// already adopted or proposed, the printing in the Commission’s Public www.nyse.com. Reference Room, 100 F Street, NE., 4 NYSE Amex Equities Rule 80C. Washington, DC 20549, on official 16 17 CFR 200.30–3(a)(12). 5 NYSE Amex Equities Rule 128. business days between the hours of 10 1 15 U.S.C. 78s(b)(1). 6 NYSE Amex Equities Rule 104(a)(1)(B). a.m. and 3 p.m. Copies of such filing 2 15 U.S.C. 78a. 7 See Securities Exchange Act Release No. 64547 also will be available for inspection and 3 17 CFR 240.19b–4. (May 25, 2011), 76 FR 31647 (June 1, 2011).

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markets should consider reforming the respond to significant price movements. Proposed Amendments existing market-wide circuit breakers. Importantly, the market-wide circuit As noted above, the Exchange, other Among other things, the Committee breakers were not intended to prevent equities, options, and futures markets, noted that the interrelatedness of markets from adjusting to new price and FINRA propose to amend the today’s highly electronic markets levels; rather, they provide for a speed market-wide circuit breakers to take into warrants the need to review the present bump for extremely rapid market consideration the recommendations of operation of the system-wide circuit declines.10 the Committee, and to provide for more breakers now in place. Specifically, the In its current form,11 NYSE Amex meaningful measures in today’s markets Committee recommended that the Equities Rule 80B provides for Level 1, of when to halt trading in all stocks. markets consider replacing the Dow 2, and 3 declines and specified trading Accordingly, the Exchange proposes to Jones Industrial Average (‘‘DJIA’’) with halts following such declines. The ® amend NYSE Amex Equities Rule 80B the S&P 500 Index (‘‘S&P 500’’), values of Levels 1, 2 and 3 are as follows: (i) Replace the DJIA with the revising the 10%, 20%, and 30% calculated at the beginning of each S&P 500; (ii) replace the quarterly decline percentages, reducing the length calendar quarter, using 10%, 20% and calendar recalculation of Rule 80B of trading halts, and allowing halts to be 30%, respectively, of the average closing triggers with daily recalculations; (iii) triggered up to 3:30 p.m.8 value of the DJIA for the month prior to replace the 10%, 20%, and 30% market The exchanges and FINRA have taken the beginning of the quarter. Each decline percentages with 7%, 13%, and into consideration the Committee’s percentage calculation is rounded to the 20% market decline percentages; (iv) recommendations, and with some nearest fifty points to create the Levels’ modify the length of the trading halts modifications, have proposed changes trigger points. The Exchange associated with each market decline to market-wide circuit breakers that the disseminates the new trigger levels level; and (v) modify the times when a Exchange believes will provide for a quarterly to the media and via an trading halt may be triggered. The more meaningful measure in today’s Information Memo and is available on Exchange believes that these proposed faster, more electronic markets, of when the Exchange’s Web site.12 The values amendments update the rule to reflect to halt stocks on a market-wide basis as then remain in effect until the next today’s high-speed, highly electronic a result of rapid market declines. quarterly calculation, notwithstanding trading market while still meeting the whether the DJIA has moved and a Background original purpose of Rule 80B: to ensure Level 1, 2, or 3 decline is no longer The Exchange adopted Amex Rule that market participants have an equal to an actual 10%, 20%, or 30% 117 in October 1988 as part of an effort opportunity to become aware of and decline in the most recent closing value by the securities and futures markets to respond to significant price movements. implement a coordinated means to of the DJIA. Once a Rule 80B circuit breaker is in First, the Exchange proposes to address potentially destabilizing market replace the DJIA with the S&P 500. The volatility.9 At the same time, the New effect, trading in all stocks halt for the time periods specified below: Exchange believes that because the S&P York Stock Exchange LLC (‘‘NYSE’’) 500 is based on the trading prices of 500 adopted NYSE Rule 80B. NYSE Rule Level 1 Halt stocks, as compared to the 30 stocks that 80B provides for market-wide halts in comprise the DJIA, the S&P 500 trading at specified levels in order to Anytime before 2 p.m.—one hour; At or after 2 p.m. but before 2:30 p.m.— represents a broader base of securities promote stability and investor against which to measure whether confidence during a period of 30 minutes; At or after 2:30 p.m.—trading shall extraordinary market-wide volatility is significant stress. As the Commission occurring. In addition, as noted by the noted in its approval order, NYSE Rule continue, unless there is a Level 2 Halt. Committee, using an index that 80B and Amex Rule 117 were intended correlates closely with derivative to enable market participants to Level 2 Halt products, such as the E-Mini and SPY, establish an equilibrium between Any time before 1 p.m.—two hours; will allow for a better cross-market buying and selling interest and to measure of market volatility. ensure that market participants have an At or after 1 p.m. but before 2 p.m.—one opportunity to become aware of and hour; Second, the Exchange proposes to At or after 2 p.m.—trading shall halt and change the recalculation of the trigger 8 See Summary Report of the Committee, not resume for the rest of the day. values from once every calendar quarter to daily. The Exchange believes that ‘‘Recommendations Regarding Regulatory Level 3 Halt Responses to the Market Events of May 6, 2010’’ updating the trigger values daily will (Feb, 18, 2011). The Exchange notes that NYSE At any time—trading shall halt and not better reflect current market conditions. Euronext submitted a comment letter to the Committee that recommended, among other things, resume for the rest of the day. In particular, a daily recalculation will reform of the market-wide circuit breaker rules. See Unless stocks are halted for the ensure that the percentage drop triggers Letter to Elizabeth Murphy, Secretary, Commission, remainder of the trading day, price relate to current market conditions, and from Janet M. Kissane, SVP and Corporate are not compared to what may be stale Secretary, NYSE Euronext (July 19, 2010). The indications are disseminated during a proposed reforms set forth in this rule proposal Rule 80B trading halt for stocks that market conditions. As noted in the differ slightly from the changes recommended in comprise the DJIA. proposed rule, the daily calculations of that comment letter, and represent consensus the trigger values will be published among the markets of how to address reform of the 13 market-wide circuit breakers. 10 Id. before the trading day begins. 9 See Securities Exchange Act Release No. 26198 11 The rule was last amended in 1998, when Third, the Exchange proposes to (Oct. 19, 1988) (SR–CBOE–88–14, SR–NASD–88– declines based on specified point drops in the DJIA decrease the current Level 1, 2, and 3 46, SR–NYSE–88–22, SR–NYSE–88–23, SR–NYSE– were replaced with the current methodology of declines of 10%, 20%, and 30% to a 88–24, and SR–Amex–88–24). In December 2008, using a percentage decline that is recalculated pursuant to NYSE Amex Rule 0(b), all NYSE Amex quarterly. See Securities Exchange Act Release No. Equities Trading Systems transactions, including 39846 (April 9, 1998), 63 FR 18477 (April 15, 1998) 13 The Exchange and other markets will advise via trading halts due to extraordinary volatility, are (SR–NYSE–98–06, SR–Amex–98–09, SR–BSE–98– Trader Update the specific methodology for governed by NYSE Amex Equities rules. 06, SR–CHX–98–08, SR–NASD–98–27, and SR– publishing the daily calculations, as well as the Accordingly, NYSE Amex Equities Rule 80B, which Phlx–98–15). manner by which the markets will halt trading in is identical to NYSE Rule 80B, is now the operative 12 See e.g., NYSE Regulation Information Memos all stocks should a Rule 80B trading halt be rule in place of NYSE Amex Rule 117. 11–19 (June 30, 2011) and 11–10 (March 31, 2011). triggered.

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Level 1 Market Decline of 7%, a Level amending the rule to allow for a Level halts, the Exchange proposes to delete 2 Market Decline of 13%, and Level 3 1 or 2 Market Decline to trigger a trading NYSE Amex Rule 117 as moot. Market Decline of 20%. In particular, as halt up to 3:25 p.m. Under the current The Exchange proposes to implement demonstrated by the May 6, 2010 flash rule, a trading halt cannot be triggered the changes to Rule 80B at the same crash, the current Level 1 10% decline after 2:30 p.m., and this time time that the Limit Up-Limit Down may be too high a threshold before corresponds to the need for the markets Plan, if approved, is implemented. determining whether to halt trading both to reopen following a 30-minute 2. Statutory Basis across all securities. In fact, since halt and to engage in a fair and orderly adoption, the markets have halted only closing process. However, as the The basis under the Act for these once, on October 27, 1997.14 markets experienced on May 6, 2010, proposed rule changes are [sic] the Accordingly, to reflect the potential that even if the Level 1 decline had occurred requirement under Section 6(b)(5)16 that a lower, yet still significant decline may that day, because the market decline an Exchange have rules that are warrant a market-wide trading halt, the occurred after 2:30 p.m., it would not designed to promote just and equitable Exchange proposes to lower the market have triggered a halt under the current principles of trade, to remove decline percentage thresholds. rule. The Committee recommended that impediments to and perfect the As further proposed, the Exchange trading halts be triggered up to 3:30 p.m. mechanism of a free and open market would halt trading based on a Level 1 The Exchange agrees that the proposed and a national market system and, in or Level 2 Market Decline only once per amendments must strike the appropriate general, to protect investors and the day. For example, if a Level 1 Market balance between permitting trading public interest. Specifically, this rule Decline were to occur and trading were halts as late in the day as feasible proposal supports the objectives of halted, following the reopening of without interrupting the closing perfecting the mechanism of a free and trading, the Exchange would not halt process. open market and the national market the market again unless a Level 2 Accordingly, to accommodate existing system because it promotes uniformity Market Decline were to occur. Likewise, Exchange rules concerning closing across markets concerning when and following the reopening of trading after procedures, including the publication of how to halt trading in all stocks as a a Level 2 Market Decline, the Exchange imbalance information beginning at 3:45 result of extraordinary market volatility. would not halt trading again unless a p.m. and the restrictions on entry and B. Self-Regulatory Organization’s Level 3 Market Decline were to occur, cancellation of market on close Statement on Burden on Competition at which point, trading in all stocks (‘‘MOC’’) and limit on close (‘‘LOC’’) would be halted until the primary orders after 3:45 p.m.,15 the Exchange The Exchange does not believe that market reopens the next trading day. proposes that the last Level 1 or Level the proposed rule change will impose Fourth, to correspond with the lower 2 Market Decline trading halt should be any burden on competition that is not percentages associated with triggering a 3:25 p.m. The Exchange proposes 3:25 necessary or appropriate in furtherance trading halt, the Exchange also proposes p.m. as the cut-off time so that there is of the purposes of the Act. to shorten the length of the market-wide time following the 15-minute trading C. Self-Regulatory Organization’s trading halts associated with each Level. halt for the markets to reopen before the Statement on Comments on the As proposed, a Level 1 or 2 Market 3:45 cut-off for entry and cancellation of Proposed Rule Change Received From Decline occurring after 9:30 a.m. Eastern MOC and LOC orders under Exchange Members, Participants, or Others and up to and including 3:25 p.m. rules. No written comments were solicited Eastern, or in the case of an early As with current Level 3 declines, or received with respect to the proposed scheduled close, 12:25 p.m. Eastern, under the proposed rule, a Level 3 rule change. would result in a trading halt in all Market Decline would halt trading for stocks for 15 minutes. the remainder of the trading day, III. Date of Effectiveness of the The Exchange believes that by including any trading that may take Proposed Rule Change and Timing for reducing the percentage threshold, place after 4 p.m., Eastern, and would Commission Action coupled with the reduced length of a not resume until the next trading day. Within 45 days of the date of trading halt, the proposed rule would In addition to these proposed allow for trading halts for serious publication of this notice in the Federal changes, the Exchange proposes to add Register or within such longer period (i) market declines, while at the same time, to Rule 80B how the markets will would minimize disruption to the As the Commission may designate up to reopen following a 15-minute trading 90 days of such date if it finds such market by allowing for trading to halt. In particular, similar to the continue after the proposed more- longer period to be appropriate and reopening procedures set forth in Rule publishes its reasons for so finding or abbreviated trading halt. The Exchange 80C, the Exchange proposes that if the believes that in today’s markets, where (ii) as to which the self-regulatory primary market halts trading in all organization consents, the Commission trading information travels in micro- stocks, all markets will halt trading in second speed, a 15-minute trading halt will: those stocks until the primary market (A) by order approve or disapprove strikes the appropriate balance between has resumed trading or notice has been the proposed rule change, or the need to halt trading for market provided by the primary market that (B) institute proceedings to determine participants to assess the market, while trading may resume. As further whether the proposed rule change at the same time reducing the time that proposed, if the primary market does should be disapproved. the market is halted. not re-open a security within 15 Finally, because the proposed Level 1 minutes following the end of the trading IV. Solicitation of Comments and Level 2 trading halts will now be 15 halt, other markets may resume trading Interested persons are invited to minutes, the Exchange proposes in that security. submit written data, views, and Finally, because NYSE Amex Equities arguments concerning the foregoing, 14 At that time, the triggers were based on Rule 80B governs market-wide trading absolute declines in the DJIA (350 point decrease including whether the proposed for a Level 1 halt and 550 point decrease for a Level 2 halt). 15 See NYSE Amex Equities Rule 123C. 16 15 U.S.C. 78f(b)(5).

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changes to the market-wide circuit • In the event of a Level 3 Market For the Commission, by the Division of breaker regime are consistent with the Decline, should the markets wait for the Trading and Markets, pursuant to delegated 19 Act. The Commission specifically primary market to reopen trading in a authority. requests comment on the following: particular security on the next trading Elizabeth M. Murphy, • As discussed above, the proposed day before trading in that security Secretary. rule change would narrow the resumes? [FR Doc. 2011–25513 Filed 10–3–11; 8:45 am] percentage market declines that would BILLING CODE 8011–01–P Comments may be submitted by any trigger a market-wide halt in trading. How would the proposed changes of the following methods: interact with the existing single-stock Electronic Comments SECURITIES AND EXCHANGE circuit breaker pilot program 17 or, if COMMISSION • approved, the proposed NMS Plan to Use the Commission’s Internet [Release No. 34–65431; File No. SR–EDGA– establish a limit-up/limit-down comment form (http://www.sec.gov/ 2011–31] mechanism for individual securities? 18 rules/sro.shtml); or • To what extent could the • Send an e-mail to rule- Self-Regulatory Organizations; EDGA concurrent triggering of single stock [email protected]. Please include File Exchange, Inc.; Notice of Filing of Proposed Rule Change by EDGA circuit breakers in many S&P 500 Index Number SR–NYSEAMEX–2011–73 on Exchange, Inc. To Amend EDGA Rule stocks lead to difficulties in calculating the subject line. the index? Would the triggering of many 11.14 To Revise the Current single stock circuit breakers in a general Paper Comments Methodology for Determining When To market downturn cause the index Halt Trading in All Stocks Due to • calculation to become stale and thereby Send paper comments in triplicate Extraordinary Market Volatility delay the triggering of the market-wide to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, September 28, 2011. circuit breaker? Pursuant to Section 19(b)(1) of the • Should the market-wide circuit 100 F Street, NE., Washington, DC 20549–1090. Securities Exchange Act of 1934 (the breaker be triggered if a sufficient ‘‘Act’’),1 and Rule 19b–4 thereunder,2 number of single-stock circuit breakers All submissions should refer to File notice is hereby given that on or price limits are triggered, and Number SR–NYSEAMEX–2011–73. This September 27, 2011 EDGA Exchange, materially affect calculations of the S&P file number should be included on the Inc. (the ‘‘Exchange’’ or ‘‘EDGA’’) filed 500 Index? subject line if e-mail is used. To help the with the Securities and Exchange • Should market centers implement Commission process and review your Commission (‘‘Commission’’) the rules that mandate cancellation of comments more efficiently, please use proposed rule change as described in pending orders in the event a market- Items I and II below, which items have wide circuit breaker is triggered? If so, only one method. The Commission will post all comments on the Commission’s been prepared by the Exchange. The should such a rule require cancellation Commission is publishing this notice to of all orders or only certain order types Internet Web site (http://www.sec.gov/ rules/sro.shtml). Copies of the solicit comments on the proposed rule (e.g., limit orders)? Should all trading change from interested persons. halts trigger such cancellation policies submission, all subsequent or should the cancellation policies amendments, all written statements I. Self-Regulatory Organization’s apply only to a Level 3 Market Decline? with respect to the proposed rule Statement of the Terms of Substance of • Should some provision be made to change that are filed with the the Proposed Rule Change end the regular trading session if a Commission, and all written The Exchange proposes to amend market decline suddenly occurs after communications relating to the Exchange Rule 11.14 to revise the 3:25 p.m. but does not reach the 20% proposed rule change between the current methodology for determining level? Commission and any person, other than when trading in all stocks will be halted • In the event of a Level 3 Market those that may be withheld from the due to extraordinary market volatility. Decline, should some provision be made public in accordance with the The text of the proposed rule change is for the markets to hold a closing provisions of 5 U.S.C. 552, will be attached as Exhibit 5 3 and is available auction? available for Web site viewing and on the Exchange’s Web site at http:// • Should the primary market have a printing in the Commission’s Public www.directedge.com, at the Exchange’s longer period (e.g., 30 minutes) to Reference Room, 100 F Street, NE., principal office, and at the Public reopen trading following a Level 2 Washington, DC 20549, on official Reference Room of the Commission. Market Decline before trading resumes business days between the hours of 10 II. Self-Regulatory Organization’s in other venues? a.m. and 3 p.m. Copies of such filing Statement of the Purpose of, and also will be available for inspection and Statutory Basis for, the Proposed Rule 17 See Securities Exchange Act Release No. 64735 Change (June 23, 2011), 76 FR 38243 (June 29, 2011) (SR– copying at the principal office of the BATS–2011–016; SR–BYX–2011–011; SR–BX– Exchange. All comments received will In its filing with the Commission, the 2011–025; SR–CBOE–2011–049; SR–CHX–2011–09; be posted without change; the Exchange included statements SR–EDGA–2011–15; SR–EDGX–2011–14; SR– Commission does not edit personal FINRA–2011–023; SR–ISE–2011–028; SR– concerning the purpose of, and basis for, NASDAQ–2011–067; SR–NYSE–2011–21; SR– identifying information from the proposed rule change and discussed NYSEAmex–2011–32; SR–NYSEArca-2011–26; SR– submissions. You should submit only any comments it received on the NSX–2011–06; SR–Phlx–2011–64) (approving the information that you wish to make proposed rule change. The text of these ‘‘Phase III Pilot Program’’). The Phase III Pilot Program has been extended through January 2012. publicly available. All submissions See, e.g., Securities Exchange Act Release 65094 should refer to File Number SR– 19 17 CFR 200.30–3(a)(12). (August 10, 2011), 76 FR 50779 (August 16, 2011) NYSEAMEX–2011–73 and should be 1 15 U.S.C. 78s(b)(1). 2 (SR–NASDAQ–2011–011). submitted on or before October 25, 17 CFR 240.19b–4. 18 See Securities Exchange Act Release No. 64547 3 The Commission notes that Exhibit 5 is attached (May 25, 2011), 76 FR 31647 (June 1, 2011). 2011. to the filing, not to this Notice.

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statements may be examined at the markets consider replacing the Dow each calendar quarter by the primary places specified in Item IV below. The Jones Industrial Average (‘‘DJIA’’) with listing market, using 10%, 20% and self-regulatory organization has the S&P 500® Index (‘‘S&P 500’’), 30%, respectively, of the average closing prepared summaries, set forth in revising the 10%, 20% and 30% decline value of the DJIA for the month prior to Sections A, B and C below, of the most percentages, reducing the length of the beginning of the quarter. Each significant aspects of such statements. trading halts, and allowing halts to be percentage calculation is rounded to the triggered up to 3:30 p.m.8 nearest fifty points to create the levels’ A. Self-Regulatory Organization’s The exchanges and FINRA have taken trigger points. The primary listing Statement of the Purpose of, and into consideration the Committee’s markets disseminate the new trigger Statutory Basis for, the Proposed Rule recommendations, and with some levels quarterly to the media, via Change modifications, have proposed changes information memos and publication on 1. Purpose to market-wide circuit breakers. The their websites. The values then remain Exchange believes these proposed in effect until the next quarterly The Exchange proposes to amend changes will provide for a more Exchange Rule 11.14 to revise the calculation, notwithstanding whether meaningful measure, in today’s faster, the DJIA has moved and a Level 1, 2 or current methodology for determining more electronic markets, of when to halt when trading in all stocks will be halted 3 decline is no longer equal to an actual stocks on a market-wide basis as a result 10%, 20% or 30% decline in the most due to extraordinary market volatility. of rapid market declines. The Exchange is proposing this rule recent closing value of the DJIA. Once a Rule 11.14 circuit breaker is in change in consultation with other Background effect, trading in all stocks halt for the equity, options and futures markets, the EDGA Rule 11.14 provides for market- time periods specified below: Financial Industry Regulatory wide halts in trading at specified levels Authority, Inc. (‘‘FINRA’’) and staffs of in order to promote stability and Level 1 Halt the Commission and the Commodity investor confidence during a period of Anytime before 2 p.m.—one hour; at Futures Trading Commission. significant stress. As the Commission or after 2 p.m. but before 2:30 p.m.—30 Since May 6, 2010, when the markets noted in its approval order for the minutes; at or after 2:30 p.m.—trading experienced excessive volatility in an analogous rule from the New York Stock shall continue, unless there is a Level 2 abbreviated time period, i.e., the ‘‘flash Exchange (‘‘NYSE’’),9 the rule was Halt. crash,’’ the exchanges and FINRA have intended to enable market participants implemented market-wide measures to establish equilibrium between buying Level 2 Halt designed to restore investor confidence and selling interest and to ensure that Anytime before 1 p.m.—two hours; at by reducing the potential for excessive market participants have an opportunity or after 1 p.m. but before 2 p.m.—one market volatility. Among the measures to become aware of and respond to hour; at or after 2 p.m.—trading shall adopted include pilot plans for stock- significant price movements. halt and not resume for the rest of the by-stock trading pauses 4 and related Importantly, the market-wide circuit day. changes to the clearly erroneous breakers were not intended to prevent execution rules 5 and more stringent markets from adjusting to new price Level 3 Halt market maker quoting requirements. 6 In levels; rather, they provide for a speed At any time—trading shall halt and addition, on April 5, 2011, the equities bump for extremely rapid market not resume for the rest of the day. exchanges and FINRA filed a plan declines.10 Unless stocks are halted for the pursuant to Rule 608 of Regulation NMS In its current form,11 the rule provides remainder of the trading day, price to address extraordinary market for Level 1, 2 and 3 declines and indications are disseminated by the volatility (the ‘‘Limit Up-Limit Down specified trading halts following such primary listing market during a Rule Plan’’).7 As proposed, the Limit Up- declines (each a ‘‘Level 1, 2 or 3 Halt,’’ 11.14 trading halt for stocks that Limit Down Plan is designed to prevent respectively). The values of Levels 1, 2 comprise the DJIA. trades in individual NMS stocks from and 3 are calculated at the beginning of Proposed Amendments occurring outside specified price bands. The Joint CFTC–SEC Advisory 8 See Summary Report of the Committee, As noted above, the Exchange, other ‘‘Recommendations Regarding Regulatory equities, options, and futures markets, Committee on Emerging Regulatory Responses to the Market Events of May 6, 2010’’ Issues (‘‘Committee’’) has recommended (Feb, 18, 2011). The Exchange notes that NYSE and FINRA propose to amend the that, in addition to the initiatives Euronext submitted a comment letter to the market-wide circuit breakers to take into already adopted or proposed, the Committee that recommended, among other things, consideration the recommendations of reform of the market-wide circuit breaker rules. See the Committee, and to provide for more markets should consider reforming the Letter to Elizabeth Murphy, Secretary, Commission, existing market-wide circuit breakers. from Janet M. Kissane, SVP and Corporate meaningful measures in today’s markets Among other things, the Committee Secretary, NYSE Euronext (July 19, 2010). The of when to halt trading in all stocks. noted that the interrelatedness of proposed reforms set forth in this rule proposal Accordingly, the Exchange proposes to differ slightly from the changes recommended in amend Rule 11.14 as follows: (i) Replace today’s highly electronic markets that comment letter, and represent consensus warrants the need to review the present among the markets of how to address reform of the the DJIA with the S&P 500; (ii) replace operation of the system-wide circuit market-wide circuit breakers. the quarterly calendar recalculation of breakers now in place. Specifically, the 9 See NYSE Rule 80B. Rule 11.14 triggers with daily Committee recommended that the 10 See Securities Exchange Act Release No. 26198 recalculations; (iii) replace the 10%, (Oct. 19, 1988). 20% and 30% market decline 11 NYSE Rule 80B was last amended in 1998, 4 EDGA Rule 11.14. when declines based on specified point drops in the percentages with 7%, 13% and 20% 5 EDGA Rule 11.13. DJIA were replaced with the current methodology market decline percentages (each a 6 See SR–EDGA–2011–29 (August 30, 2011) of using a percentage decline that is recalculated ‘‘Level 1, 2 or 3 Market Decline,’’ (mirroring the market making standards in other quarterly. See Securities Exchange Act Release No. respectively); (iv) modify the length of exchange rules, such as NYSE Rule 104(a)(1)(B), 39846 (April 9, 1998), 63 FR 18477 (April 15, 1998) Nasdaq Rule 4613(a), and BATS Rule 11.8(d)(2)). (SR–NYSE–98–06, SR–Amex–98–09, SR–BSE–98– the trading halts associated with each 7 See Securities Exchange Act Release No. 64547 06, SR–CHX–98–08, SR–NASD–98–27, and SR– market decline level; and (v) modify the (May 25, 2011), 76 FR 31647 (June 1, 2011). Phlx–98–15). times when a trading halt may be

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triggered. The Exchange believes that once per day. For example, if a Level 1 Accordingly, to accommodate existing these proposed amendments update the Market Decline was to occur and trading primary listing market rules concerning rule to reflect today’s high-speed, highly was halted, following the re-opening of closing procedures, including the electronic trading market while still trading, trading would not halt again publication of imbalance information meeting the original purpose of the rule: unless a Level 2 Market Decline was to beginning at 3:45 p.m. and the To ensure that market participants have occur. Likewise, following the re- restrictions on entry and cancellation of an opportunity to become aware of and opening of trading after a Level 2 Market market on close (‘‘MOC’’) and limit on respond to significant price movements. Decline, trading would not be halted close (‘‘LOC’’) orders after 3:45 p.m., 15 First, the Exchange proposes to again unless a Level 3 Market Decline the Exchange proposes that the last replace the DJIA with the S&P 500. The was to occur, at which point, trading in Level 1 or Level 2 Market Decline Exchange believes that because the S&P all stocks would be halted until the trading halt should be 3:25 p.m. The 500 is based on the trading prices of 500 primary listing market opens the next Exchange proposes 3:25 p.m. as the cut- stocks, as compared to the 30 stocks that trading day. off time so that there is time following comprise the DJIA, the S&P 500 Fourth, to correspond with the lower the 15-minute trading halt for the represents a broader base of securities percentages associated with triggering a markets to re-open before the 3:45 p.m. against which to measure whether trading halt, the Exchange also proposes cut-off for entry and cancellation of extraordinary market-wide volatility is to shorten the length of the market-wide MOC and LOC orders under primary occurring. In addition, as noted by the trading halts associated with each level. listing market rules.16 Committee, using an index that As proposed, a Level 1 or 2 Market As with current Level 3 declines, correlates closely with derivative Decline occurring after 9:30 a.m. Eastern under the proposed rule, a Level 3 products, such as the E–Mini and SPDR Time (‘‘ET’’) 14 and up to and including Market Decline would halt trading for S&P 500 Exchange-Traded Fund 3:25 p.m. ET, would result in a trading the remainder of the trading day, (‘‘SPY’’), will allow for a better cross- halt in all stocks for 15 minutes. including any trading that may take market measure of market volatility. The Exchange believes that by place after 4 p.m. and would not resume Second, the Exchange proposes to reducing the percentage threshold, until the next trading day. change the recalculation of the trigger coupled with the reduced length of a In addition to these proposed values from once every calendar quarter trading halt, the proposed rule would changes, the Exchange proposes to add to daily. The Exchange believes that allow for trading halts for serious to Rule 11.14 how the markets will re- updating the trigger values daily will market declines, while at the same time, open following a 15-minute trading halt. better reflect current market conditions. would minimize disruption to the In particular, similar to the re-opening In particular, a daily recalculation will market by allowing for trading to procedures set forth in Rule 11.14, the ensure that the percentage drop triggers continue after the proposed more- Exchange proposes that if the primary abbreviated trading halt. The Exchange relate to current market conditions, and listing market halts trading in all stocks, believes that in today’s markets, where are not compared to what may be stale all markets will halt trading in those trading information travels in micro- market conditions. As noted in the stocks until the primary listing market second speeds, a 15-minute trading halt proposed rule, the daily calculations of has resumed trading or notice has been strikes the appropriate balance between the trigger values will be published provided by the primary listing market the need to halt trading for market before the trading day begins.12 that trading may resume. As further participants to assess the market, while Third, the Exchange proposes to proposed, if the primary listing market at the same time reducing the time that decrease the current Level 1, 2 and 3 does not re-open a security within 15 the market is halted. declines of 10%, 20% and 30% to a minutes following the end of the trading Finally, because the proposed Level 1 halt, other markets may resume trading Level 1 Market Decline of 7%, a Level and Level 2 trading halts will now be 15 2 Market Decline of 13% and Level 3 in that security. minutes, the Exchange proposes As a result of the proposed changes Market Decline of 20%. In particular, as amending the rule to allow for a Level demonstrated by the May 6, 2010 flash described above, the Exchange proposes 1 or 2 Market Decline to trigger a trading to delete Interpretations and Policies crash, the current Level 1 10% decline halt up to 3:25 p.m. Under the current may be too high a threshold for .01–.04 to Rule 11.14, move rule, a trading halt cannot be triggered Interpretations and Policies .03 and .04 determining whether to halt trading after 2:30 p.m., and this time across all securities. In fact, since into the rule text of Rule 11.14 as corresponds to the need for the markets sections (c)(1) and (f), respectively, and adoption, the markets have halted only both to re-open following a 30-minute once, on October 27, 1997.13 re-number existing Interpretation and halt and to engage in a fair and orderly Policy .05 to Rule 11.14 as Accordingly, to reflect the potential that closing process. However, as the a lower, yet still significant decline may Interpretation and Policy .01 to Rule markets experienced on May 6, 2010, 11.14. In addition, a conforming warrant a market-wide trading halt, the even if the Level 1 decline had occurred Exchange proposes to lower the market amendment is proposed to be made in that day, because the market decline Rule 11.13(c)(1) to re-number the cross- decline percentage thresholds. occurred after 2:30 p.m., it would not As further proposed, trading on the reference to Interpretation .05 of Rule have triggered a halt under the current 11.14 as Interpretation .01 of Rule 11.14. Exchange will be halted based on a rule. The Committee recommended that Level 1 or Level 2 Market Decline only trading halts be triggered up to 3:30 p.m. 2. Statutory Basis The Exchange agrees that the proposed The basis under the Act for these 12 The primary listing markets will advise via Trader Update the specific methodology for amendments must strike the appropriate proposed rule changes are [sic] the publishing the daily calculations, as well as the balance between permitting trading requirement under Section 6(b)(5) 17 manner by which the markets will halt trading in halts as late in the day as feasible that an Exchange have rules that are all stocks should a Rule 11.14 trading halt be without interrupting the closing designed to promote just and equitable triggered. 13 At that time, the triggers were based on process. absolute declines in the DJIA (350 point decrease 15 See, e.g., NYSE Rule 123C. for a Level 1 halt and 550 point decrease for a Level 14 The Exchange notes that all times listed 16 Id. 2 halt). throughout this filing are in Eastern Time. 17 15 U.S.C. 78f(b)(5).

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principles of trade, to remove approved, the proposed NMS Plan to • Send an e-mail to rule- impediments to and perfect the establish a limit-up/limit-down [email protected]. Please include File mechanism of a free and open market mechanism for individual securities? 19 Number SR–EDGA–2011–31 on the and a national market system and, in • To what extent could the subject line. general, to protect investors and the concurrent triggering of single stock public interest. Specifically, this rule circuit breakers in many S&P 500 Index Paper Comments proposal supports the objectives of stocks lead to difficulties in calculating • Send paper comments in triplicate perfecting the mechanism of a free and the index? Would the triggering of many to Elizabeth M. Murphy, Secretary, open market and the national market single stock circuit breakers in a general Securities and Exchange Commission, system because it promotes uniformity market downturn cause the index across markets concerning when and calculation to become stale and thereby 100 F Street, NE., Washington, DC how to halt trading in all stocks as a delay the triggering of the market-wide 20549–1090. result of extraordinary market volatility. circuit breaker? All submissions should refer to File • B. Self-Regulatory Organization’s Should the market-wide circuit Number SR–EDGA–2011–31. This file Statement on Burden on Competition breaker be triggered if a sufficient number should be included on the number of single-stock circuit breakers subject line if e-mail is used. To help the The proposed rule change does not or price limits are triggered, and impose any burden on competition that Commission process and review your materially affect calculations of the S&P comments more efficiently, please use is not necessary or appropriate in 500 Index? furtherance of the purposes of the Act. • only one method. The Commission will Should market centers implement post all comments on the Commission’s rules that mandate cancellation of C. Self-Regulatory Organization’s Internet Web site (http://www.sec.gov/ pending orders in the event a market- Statement on Comments on the rules/sro.shtml). Copies of the wide circuit breaker is triggered? If so, Proposed Rule Change Received From submission, all subsequent Members, Participants, or Others should such a rule require cancellation of all orders or only certain order types amendments, all written statements The Exchange has not solicited, and (e.g., limit orders)? Should all trading with respect to the proposed rule does not intend to solicit, comments on halts trigger such cancellation policies change that are filed with the this proposed rule change. The Commission, and all written Exchange has not received any or should the cancellation policies apply only to a Level 3 Market Decline? communications relating to the unsolicited written comments from • proposed rule change between the members or other interested parties. Should some provision be made to end the regular trading session if a Commission and any person, other than III. Date of Effectiveness of the market decline suddenly occurs after those that may be withheld from the Proposed Rule Change and Timing for 3:25 p.m. but does not reach the 20% public in accordance with the Commission Action level? provisions of 5 U.S.C. 552, will be • Within 45 days of the date of In the event of a Level 3 Market available for Web site viewing and publication of this notice in the Federal Decline, should some provision be made printing in the Commission’s Public Register or within such longer period (i) for the markets to hold a closing Reference Room, 100 F Street, NE., as the Commission may designate up to auction? Washington, DC 20549, on official 90 days of such date if it finds such • Should the primary market have a business days between the hours of 10 longer period to be appropriate and longer period (e.g., 30 minutes) to a.m. and 3 p.m. Copies of such filing publishes its reasons for so finding or reopen trading following a Level 2 also will be available for inspection and (ii) as to which the self-regulatory Market Decline before trading resumes copying at the principal office of the organization consents, the Commission in other venues? • Exchange. All comments received will will: In the event of a Level 3 Market be posted without change; the Decline, should the markets wait for the (a) By order approve or disapprove Commission does not edit personal primary market to reopen trading in a such proposed rule change; or identifying information from (b) institute proceedings to determine particular security on the next trading whether the proposed rule change day before trading in that security submissions. You should submit only should be disapproved. resumes? information that you wish to make Comments may be submitted by any publicly available. All submissions IV. Solicitation of Comments of the following methods: should refer to File Number SR–EDGA– Interested persons are invited to 2011–31 and should be submitted on or submit written data, views, and Electronic Comments before October 25, 2011. • arguments concerning the foregoing, Use the Commission’s Internet For the Commission, by the Division of including whether the proposed comment form (http://www.sec.gov/ Trading and Markets, pursuant to delegated changes to the market-wide circuit rules/sro.shtml); or authority.20 breaker regime are consistent with the Elizabeth M. Murphy, Act. The Commission specifically BATS–2011–016; SR–BYX–2011–011; SR–BX– requests comment on the following: 2011–025; SR–CBOE–2011–049; SR–CHX–2011–09; Secretary. • As discussed above, the proposed SR–EDGA–2011–15; SR–EDGX–2011–14; SR– [FR Doc. 2011–25512 Filed 10–3–11; 8:45 am] FINRA–2011–023; SR–ISE–2011–028; SR– rule change would narrow the NASDAQ–2011–067; SR–NYSE–2011–21; SR– BILLING CODE 8011–01–P percentage market declines that would NYSEAmex–2011–32; SR–NYSEArca–2011–26; SR– trigger a market-wide halt in trading. NSX–2011–06; SR–Phlx–2011–64) (approving the How would the proposed changes ‘‘Phase III Pilot Program’’). The Phase III Pilot Program has been extended through January 2012. interact with the existing single-stock See, e.g., Securities Exchange Act Release 65094 18 circuit breaker pilot program or, if (August 10, 2011), 76 FR 50779 (August 16, 2011) (SR–NASDAQ–2011–011). 18 See Securities Exchange Act Release No. 64735 19 See Securities Exchange Act Release No. 64547 (June 23, 2011), 76 FR 38243 (June 29, 2011) (SR– (May 25, 2011), 76 FR 31647 (June 1, 2011). 20 17 CFR 200.30–3(a)(12).

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SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s FINRA and the other SROs filed a plan COMMISSION Statement of the Purpose of, and pursuant to Rule 608 of SEC Regulation Statutory Basis for, the Proposed Rule NMS to address extraordinary market [Release No. 34–65430; File No. SR–FINRA– 2011–054] Change volatility (the ‘‘Limit Up-Limit Down Plan’’).7 As proposed, the Limit Up- 1. Purpose Self-Regulatory Organizations; Limit Down Plan is designed to prevent Financial Industry Regulatory FINRA is proposing to amend Rule trades in individual NMS stocks from Authority, Inc.; Notice of Filing of 6121 (Trading Halts Due to occurring outside specified price bands. Proposed Rule Change To Update Rule Extraordinary Market Volatility) to The Joint CFTC–SEC Advisory 6121 (Trading Halts Due to update the methodology for determining Committee on Emerging Regulatory Extraordinary Market Volatility) and when to halt trading due to Issues (‘‘Committee’’) has recommended Amend Rule 6440 (Trading and extraordinary market volatility and Rule that, in addition to the initiatives 6440 (Trading and Quotation Halt in Quotation Halt in OTC Equity already adopted or proposed, the SROs OTC Equity Securities) to provide Securities) consider reforming the existing market- specifically that FINRA will halt trading wide circuit breakers. Among other September 28, 2011. in all OTC Equity Securities pursuant to things, the Committee noted that the Pursuant to Section 19(b)(1) of the its authority under Rule 6440(a)(3) 3 interrelatedness of today’s highly Securities Exchange Act of 1934 until the market-wide circuit breaker no electronic markets warrants a review of (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 longer is in effect for NMS stocks.4 the present operation of the system- notice is hereby given that on FINRA is proposing this rule change in wide circuit breakers now in place. September 27, 2011, Financial Industry consultation with the self-regulatory Specifically, the Committee Regulatory Authority, Inc. (‘‘FINRA’’) organizations (‘‘SROs’’) and staffs of the recommended that the SROs consider filed with the Securities and Exchange Commission and the Commodity replacing the Dow Jones Industrial Commission (‘‘SEC’’ or ‘‘Commission’’) Futures Trading Commission (‘‘CFTC’’). Average (‘‘DJIA’’) with the S&P 500® the proposed rule change as described Since May 6, 2010, when the markets Index (‘‘S&P 500’’), revising the 10%, in Items I, II, and III below, which Items experienced excessive volatility in an 20% and 30% decline percentages, have been prepared by FINRA. The abbreviated time period, i.e., the ‘‘flash reducing the length of trading halts, and Commission is publishing this notice to crash,’’ FINRA and the national allowing halts to be triggered up to 3:30 solicit comments on the proposed rule securities exchanges (‘‘other SROs’’) p.m.8 change from interested persons. have implemented market-wide FINRA and the other SROs have taken measures designed to restore investor into consideration the Committee’s I. Self-Regulatory Organization’s confidence by reducing the potential for recommendations and, with some Statement of the Terms of Substance of excessive market volatility. The modifications, are proposing changes to the Proposed Rule Change measures adopted include pilot plans address market-wide circuit breakers. 5 FINRA is proposing to update Rule for stock-by-stock trading pauses and FINRA believes that this proposal will 6121 (Trading Halts Due to related changes to the clearly erroneous 6 provide for a more meaningful measure Extraordinary Market Volatility) (i) To rules. In addition, on April 5, 2011, in today’s faster, more electronic reflect changes to market-wide circuit markets, of when to halt stocks on a breaker triggers for NMS stocks, and (ii) 3 Rule 6440(a)(3) provides that FINRA may halt quoting and trading in an OTC Equity Security if market-wide basis as a result of rapid amend Rule 6440 (Trading and it determines that an ‘‘extraordinary event’’ has market declines. Quotation Halt in OTC Equity occurred or is ongoing that has had a material effect Securities) to provide specifically for a on the market for the OTC Equity Security or has Background halt in trading in all OTC Equity caused or has the potential to cause major In 1988, the SEC approved several disruption to the marketplace and/or significant Securities when a market-wide circuit uncertainty in the settlement and clearance process. SRO rule proposals that provided for breaker is in effect for NMS stocks. 4 On October 7, 2008, FINRA filed a Uniform market-wide circuit breakers at The text of the proposed rule change Practice Code Advisory that provides notice that specified levels to promote stability and is available on FINRA’s Web site at FINRA will halt trading in OTC Equity Securities investor confidence during a period of http://www.finra.org, at the principal under Rule 6440(a)(3) (formerly Rule 6460(a)(3)) if there is a market-wide halt in trading in NMS significant stress, along with a policy office of FINRA and at the stocks. See Securities Exchange Act Release No. statement by FINRA (then known as Commission’s Public Reference Room. 58754 (October 8, 2008); 73 FR 61178 (October 15, NASD) that provided trading halt 2008) (Notice of Filing and Immediate Effectiveness II. Self-Regulatory Organization’s authority in the event of severe market of SR–FINRA–2008–049) (‘‘OTC Circuit Breaker declines.9 These measures were adopted Statement of the Purpose of, and Filing’’). In the OTC Circuit Breaker Filing, FINRA Statutory Basis for, the Proposed Rule stated that FINRA considers a market-wide halt in the trading of exchange-listed securities to be an (September 10, 2010); 75 FR 56641 (September 16, Change ‘‘extraordinary event’’ under paragraph (a)(3) and, 2010) (Order Approving SR–FINRA–2010–032); See In its filing with the Commission, therefore, FINRA will halt quoting and trading in Securities Exchange Act Release No. 65101 (August FINRA included statements concerning OTC Equity Securities under these circumstances. 11, 2011), 76 FR 51097 (August 17, 2011) (Order The instant proposed rule change codifies this Approving SR–FINRA–2011–039). the purpose of and basis for the interpretation in the text of FINRA Rule 6440. 7 See Securities Exchange Act Release No. 64547 proposed rule change and discussed any 5 See FINRA Rule 6121.01 (Trading Pauses); See (May 25, 2011), 76 FR 31647 (June 1, 2011). comments it received on the proposed Securities Exchange Act Release No. 62251 (June 8 See Summary Report of the Committee, rule change. The text of these statements 10, 2010), 75 FR 34183 (June 16, 2010) (Order Recommendations Regarding Regulatory Responses Approving SR–FINRA–2010–025); See Securities to the Market Events of May 6, 2010 (February 18, may be examined at the places specified Exchange Act Release No. 62883 (September 10, 2011). in Item IV below. FINRA has prepared 2010); 75 FR 56608 (September 16, 2010) (Order 9 See Securities Exchange Act Release No. 26198 summaries, set forth in sections A, B, Approving SR–FINRA–2010–033); See Securities (October 19, 1988), 53 FR 41637 (October 24, 1988) and C below, of the most significant Exchange Act Release No. 64735 (June 23, 2011), 76 (Order Approving SR–NASD–88–46). FINRA’s aspects of such statements. FR 38243 (June 29, 2011) (Order Approving SR– Policy Statement on Market Closings (‘‘Policy FINRA–2011–023). Statement’’) provided, among other things, that 6 See FINRA Rule 11892 (Clearly Erroneous when other major securities markets initiate market- 1 15 U.S.C. 78s(b)(1). Transactions in Exchange-Listed Securities); See wide trading halts in response to extraordinary 2 17 CFR 240.19b–4. Securities Exchange Act Release No. 62885 Continued

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as part of an effort by the securities and until the market-wide circuit breaker no trading day. As proposed, a Level 1 or futures markets to implement a longer is in effect for NMS stocks. a Level 2 Market Decline may trigger a coordinated means to address FINRA’s proposed parameters and market-wide circuit breaker after 9:30 potentially destabilizing market thresholds for market-wide circuit a.m. Eastern and up to and including volatility.10 breakers for trading otherwise than on 3:25 p.m. Eastern, or in the case of an On October 7, 2008, FINRA an exchange would track those being early scheduled close, 12:25 p.m. permanently adopted a new rule—Rule proposed by the other SROs. Eastern.15 The proposed rule would 6121—that authorizes FINRA to halt First, FINRA and the other SROs require that members halt quoting and over-the-counter trading in NMS stocks propose to use the S&P 500 as the trading otherwise than on an exchange if other major U.S. securities markets benchmark index for the market-wide in any NMS stock as of the time the initiate market-wide trading halts in circuit breakers.13 FINRA believes that market-wide trading halt is publicly response to their rules or extraordinary because the S&P 500 is based on the disseminated. market conditions, or if otherwise trading prices of 500 stocks, it Third, as proposed, a Level 1 or a directed by the SEC.11 Rule 6121 represents a broader base of securities Level 2 Market Decline would result in provides for a halt in trading otherwise against which to measure whether a market-wide circuit breaker in trading than on an exchange in any NMS stock extraordinary market-wide volatility is otherwise than on an exchange in all to promote stability and investor occurring. NMS stocks and all OTC Equity confidence during a period of Second, FINRA proposes to reference Securities for the duration of 15 significant stress. the triggers by the primary markets that minutes. When a primary listing market As the Commission noted in the establish a Level 1 Market Decline of halts trading in all NMS stocks for a Order Approving SR–NASD–88–46, 7%, a Level 2 Market Decline of 13% Level 1 or a Level 2 Market Decline, circuit breakers were intended to enable and a Level 3 Market Decline of 20%. FINRA’s halt on trading otherwise than market participants to establish an As demonstrated by the May 6, 2010 on an exchange in all NMS stocks equilibrium between buying and selling flash crash, the SROs believe that the would continue until trading has interest and to ensure that market current Level 1 10% decline may be too resumed on the primary listing market. participants have an opportunity to high a threshold before determining If, however, the primary listing market become aware of and respond to whether to halt trading across all does not reopen trading within 15 significant price movements. securities. Since adoption, the minutes following the end of the 15- Importantly, the circuit breakers were exchanges have halted only once, on minute halt period, FINRA may permit not intended to prevent markets from October 27, 1997.14 Accordingly, to the resumption of trading otherwise adjusting to new price levels; rather, reflect the potential that a lower, yet than on an exchange in that security if they provide a speed bump for still significant decline may warrant a trading in the security has commenced extremely rapid market declines.12 market-wide trading halt, the SROs are on at least one other national securities proposing to lower the decline exchange. Proposed Amendments Following a market-wide circuit percentage thresholds. breaker due to a Level 1 or a Level 2 As noted above, FINRA and the other FINRA and the other SROs would halt Market Decline, trading in OTC Equity SROs are proposing amendments to trading based on a Level 1 or a Level 2 Securities would remain halted until the their respective rules to take into Market Decline only once per day. For market-wide circuit breaker no longer is consideration the recommendations of example, if a Level 1 Market Decline in effect for NMS stocks, even if some the Committee, and to provide for more was to occur and trading otherwise than individual NMS stocks have not yet meaningful measures in today’s markets on an exchange in all NMS stocks and in determining when to halt trading in resumed trading, for example, due to all OTC Equity Securities was halted, significant imbalances in those stocks on a market-wide basis. following the reopening of trading on Accordingly, FINRA is proposing, in securities. The proposed rule would the primary listing market or the require that members halt quoting and coordination with the other SROs, to commencement of trading by another update the methodology for determining trading in all OTC Equity Securities as national securities exchange, FINRA of the time the market-wide trading halt the trigger for market-wide circuit would not halt market-wide trading breakers for trading otherwise than on in NMS stocks is publicly disseminated. again unless a Level 2 Market Decline FINRA and the other SROs believe an exchange in all NMS stocks and to was to occur. Likewise, following the provide specifically that FINRA will that the proposed percentage resumption of trading after a Level 2 thresholds—coupled with the proposed halt trading in all OTC Equity Securities Market Decline, FINRA would not halt duration of the market-wide circuit trading otherwise than on an exchange breakers for Level 1 and Level 2 Market market conditions, FINRA will, upon SEC request, in all NMS stocks and all OTC Equity halt domestic trading in all securities in equity and Declines—allows for trading halts for equity-related securities in the OTC market. As part Securities again unless a Level 3 Market serious market declines, while at the of the approval order, the SEC requested that Decline was to occur, at which point all FINRA impose a trading halt as quickly as trading otherwise than on an exchange 15 As the markets experienced on May 6, 2010, practicable whenever the NYSE and other equity in all NMS stocks and all OTC Equity even if the Level 1 decline had occurred that day, markets have suspended trading. The language in Securities would be halted until the because the market decline occurred after 2:30 p.m., the Policy Statement was subsequently codified, on it would not have triggered a market-wide circuit a pilot basis, in Interpretive Material (IM) 4120–3 primary listing market opens the next breaker under the other SROs’ existing rules. The (later renumbered IM–4120–4). See Securities Committee recommended that trading halts be Exchange Act Release No. 39846 (April 9, 1998), 63 13 The current rules of the exchanges use the triggered up to 3:30 p.m and FINRA and the other FR 18477 (April 15, 1998) (Order Approving SR– DJIA, not the S&P 500. The Committee noted that SROs agree that the proposed amendments must NASD–98–27). The IM–4120–3 pilot, which also using an index that correlates closely with strike the appropriate balance between permitting was extended numerous times, expired on April 30, derivative products, such as the E–Mini and SPY, trading halts as late in the day as feasible, without 2002. will allow for a better cross-market measure of interrupting the closing process. The SROs are 10 See Order Approving SR–NASD–88–46. market volatility. proposing 3:25 p.m. as the cut-off time so that there 11 See Securities Exchange Act Release No. 58753 14 At that time, the triggers were based on is time following the 15-minute trading halt for the (October 8, 2008), 73 FR 61177 (October 15, 2008) absolute declines in the DJIA (350 point decrease markets to reopen before the 3:45 cut-off for entry (Order Approving SR–FINRA–2008–048). for a Level 1 halt and 550 point decrease for a Level and cancellation of certain orders under other 12 See Order Approving SR–NASD–88–46. 2 halt). SROs’ rules.

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same time minimizing disruption to the C. Self-Regulatory Organization’s • Should the market-wide circuit markets by allowing for trading to Statement on Comments on the breaker be triggered if a sufficient continue after the halt. FINRA and the Proposed Rule Change Received From number of single-stock circuit breakers other SROs believe that in today’s Members, Participants, or Others or price limits are triggered, and markets, where trading information may Written comments were neither materially affect calculations of the S&P travel at a speed of micro-seconds, a 15- solicited nor received. 500 Index? minute trading halt for a Level 1 and a • Should market centers implement Level 2 Market Decline strikes the III. Date of Effectiveness of the rules that mandate cancellation of appropriate balance between halting Proposed Rule Change and Timing for pending orders in the event a market- trading for market participants to assess Commission Action wide circuit breaker is triggered? If so, the market and minimizing the time Within 45 days of the date of should such a rule require cancellation needed for an effective halt. publication of this notice in the Federal of all orders or only certain order types Upon the occurrence of a Level 3 Register or within such longer period (i) (e.g., limit orders)? Should all trading Market Decline occurring at any time as the Commission may designate up to halts trigger such cancellation policies during the trading day, FINRA would 90 days of such date if it finds such or should the cancellation policies halt trading otherwise than on an longer period to be appropriate and apply only to a Level 3 Market Decline? • exchange in all NMS stocks until the publishes its reasons for so finding or Should some provision be made to primary listing market opens the next (ii) as to which the self-regulatory end the regular trading session if a trading day. As is the case with a Level organization consents, the Commission market decline suddenly occurs after 1 or Level 2 Market Decline, upon the will: 3:25 p.m. but does not reach the 20% (A) By order approve or disapprove level? occurrence of a Level 3 Market Decline, • the proposed rule would require such proposed rule change, or In the event of a Level 3 Market members to halt quoting and trading in (B) Institute proceedings to determine Decline, should some provision be made all OTC Equity Securities as of the time whether the proposed rule change for the markets to hold a closing the market-wide trading halt in NMS should be disapproved. auction? • Should the primary market have a stocks is publicly disseminated. FINRA IV. Solicitation of Comments would halt trading in all OTC Equity longer period (e.g., 30 minutes) to Interested persons are invited to Securities until such time that the reopen trading following a Level 2 submit written data, views, and market-wide circuit breaker no longer is Market Decline before trading resumes arguments concerning the foregoing, in effect for NMS stocks, even if some in other venues? including whether the proposed • In the event of a Level 3 Market individual NMS stocks have not yet changes to the market-wide circuit Decline, should the markets wait for the resumed trading, for example, due to breaker regime are consistent with the primary market to reopen trading in a significant imbalances in those Act. The Commission specifically particular security on the next trading securities. requests comment on the following: day before trading in that security 2. Statutory Basis • As discussed above, the proposed resumes? rule change would narrow the Comments may be submitted by any FINRA believes that the proposed rule percentage market declines that would of the following methods: change is consistent with the provisions trigger a market-wide halt in trading. of Section 15A(b)(6) of the Act,16 which How would the proposed changes Electronic Comments requires, among other things, that interact with the existing single-stock • Use the Commission’s Internet FINRA rules must be designed to circuit breaker pilot program 17 or, if comment form (http://www.sec.gov/ prevent fraudulent and manipulative approved, the proposed NMS Plan to rules/sro.shtml); or acts and practices, to promote just and establish a limit-up/limit-down • Send an e-mail to rule- equitable principles of trade and, in mechanism for individual securities? 18 [email protected]. Please include File general, to protect investors and the • To what extent could the Number SR–FINRA–2011–054 on the public interest. Specifically, this concurrent triggering of single stock subject line. proposal promotes uniformity circuit breakers in many S&P 500 Index Paper Comments concerning when and how to halt stocks lead to difficulties in calculating trading in all stocks as a result of the index? Would the triggering of many • Send paper comments in triplicate extraordinary market volatility. FINRA single stock circuit breakers in a general to Elizabeth M. Murphy, Secretary, believes that the proposed rule change market downturn cause the index Securities and Exchange Commission, is consistent with the market-wide calculation to become stale and thereby 100 F Street, NE., Washington, DC circuit breaker rules of other SROs and delay the triggering of the market-wide 20549–1090. will promote the goal of investor circuit breaker? All submissions should refer to File protection by further providing for a Number SR–FINRA–2011–054. This file coordinated means to address 17 See Securities Exchange Act Release No. 64735 number should be included on the potentially destabilizing market (June 23, 2011), 76 FR 38243 (June 29, 2011) (SR– subject line if e-mail is used. To help the BATS–2011–016; SR–BYX–2011–011; SR–BX– volatility. 2011–025; SR–CBOE–2011–049; SR–CHX–2011–09; Commission process and review your B. Self-Regulatory Organization’s SR–EDGA–2011–15; SR–EDGX–2011–14; SR– comments more efficiently, please use FINRA–2011–023; SR–ISE–2011–028; SR– Statement on Burden on Competition only one method. The Commission will NASDAQ–2011–067; SR–NYSE–2011–21; SR– post all comments on the Commission’s NYSEAmex–2011–32; SR–NYSEArca–2011–26; SR– FINRA does not believe that the NSX–2011–06; SR–Phlx–2011–64) (approving the Internet Web site (http://www.sec.gov/ proposed rule change will result in any ‘‘Phase III Pilot Program’’). The Phase III Pilot rules/sro.shtml). Copies of the burden on competition that is not Program has been extended through January 2012. submission, all subsequent necessary or appropriate in furtherance See, e.g., Securities Exchange Act Release 65094 amendments, all written statements (August 10, 2011), 76 FR 50779 (August 16, 2011) of the purposes of the Act. (SR–NASDAQ–2011–011). with respect to the proposed rule 18 See Securities Exchange Act Release No. 64547 change that are filed with the 16 15 U.S.C. 78o–3(b)(6). (May 25, 2011), 76 FR 31647 (June 1, 2011). Commission, and all written

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communications relating to the Rule 11.18, entitled ‘‘Trading Halts Due volatility (the ‘‘Limit Up-Limit Down proposed rule change between the to Extraordinary Market Volatility,’’ to Plan’’).6 As proposed, the Limit Up- Commission and any person, other than revise the current methodology for Limit Down Plan is designed to prevent those that may be withheld from the determining when to halt trading in all trades in individual NMS stocks from public in accordance with the stocks due to extraordinary market occurring outside specified price bands. provisions of 5 U.S.C. 552, will be volatility. The Joint CFTC–SEC Advisory available for Web site viewing and The text of the proposed rule change Committee on Emerging Regulatory printing in the Commission’s Public is available at the Exchange’s Web site Issues (‘‘Committee’’) has recommended Reference Room, 100 F Street, NE., at http://www.batstrading.com, at the that, in addition to the initiatives Washington, DC 20549, on official principal office of the Exchange, and at already adopted or proposed, the business days between the hours of 10 the Commission’s Public Reference markets should consider reforming the a.m. and 3 p.m. Copies of such filing Room. existing market-wide circuit breakers. also will be available for inspection and II. Self-Regulatory Organization’s Among other things, the Committee copying at the principal office of Statement of the Purpose of, and noted that the interrelatedness of FINRA. All comments received will be Statutory Basis for, the Proposed Rule today’s highly electronic markets posted without change; the Commission Change warrants the need to review the present does not edit personal identifying operation of the system-wide circuit information from submissions. You In its filing with the Commission, the breakers now in place. Specifically, the should submit only information that Exchange included statements Committee recommended that the you wish to make publicly available. All concerning the purpose of and basis for markets consider replacing the Dow submissions should refer to File the proposed rule change and discussed Jones Industrial Average (‘‘DJIA’’) with Number SR–FINRA–2011–054 and any comments it received on the the S&P 500® Index (‘‘S&P 500’’), should be submitted on or before proposed rule change. The text of these revising the 10%, 20%, and 30% October 25, 2011. statements may be examined at the decline percentages, reducing the length places specified in Item IV below. The of trading halts, and allowing halts to be For the Commission, by the Division of Exchange has prepared summaries, set Trading and Markets, pursuant to delegated triggered up to 3:30 p.m.7 authority.19 forth in Sections A, B, and C below, of The exchanges and FINRA have taken Elizabeth M. Murphy, the most significant parts of such into consideration the Committee’s statements. Secretary. recommendations, and with some [FR Doc. 2011–25511 Filed 10–3–11; 8:45 am] A. Self-Regulatory Organization’s modifications, have proposed changes BILLING CODE 8011–01–P Statement of the Purpose of, and to market-wide circuit breakers that the Statutory Basis for, the Proposed Rule Exchange believes will provide for a Change more meaningful measure in today’s SECURITIES AND EXCHANGE faster, more electronic markets, of when 1. Purpose COMMISSION to halt stocks on a market-wide basis as The Exchange proposes to amend a result of rapid market declines. [Release No. 34–65429; File No. SR–BYX– BYX Rule 11.18 to revise the current 2011–025] methodology for determining when to Background Self-Regulatory Organizations; BATS halt trading in all stocks due to The market-wide halt rules currently Exchange, Inc.; Notice of Filing of a extraordinary market volatility. The in effect were initially adopted in Proposed Rule Change To Modify the Exchange is proposing this rule change October 1988 as part of an effort by the Rule for Halting Trading in All Stocks in consultation with other equity, securities and futures markets to Due to Extraordinary Market Volatility options, and futures markets, the implement a coordinated means to Financial Industry Regulatory address potentially destabilizing market September 28, 2011. Authority, Inc. (‘‘FINRA’’), and staffs of volatility.8 Accordingly, BYX Rule 11.18 Pursuant to Section 19(b)(1) of the the Commission and the Commodity provides for market-wide halts in Securities Exchange Act of 1934 (the Futures Trading Commission. trading at specified levels in order to ‘‘Act’’),1 and Rule 19b–4 thereunder,2 Since May 6, 2010, when the markets promote stability and investor notice is hereby given that on experienced excessive volatility in an confidence during a period of September 27, 2011, BATS Y-Exchange, abbreviated time period, i.e., the ‘‘flash significant stress. As the Commission Inc. (the ‘‘Exchange’’ or ‘‘BYX’’) filed crash,’’ the exchanges and FINRA have noted in its approval order for the with the Securities and Exchange implemented market-wide measures current market-wide halt rule, the rule Commission (‘‘Commission’’) the designed to restore investor confidence proposed rule change as described in by reducing the potential for excessive 6 See Securities Exchange Act Release No. 64547 Items I and II below, which Items have market volatility. Among the measures (May 25, 2011), 76 FR 31647 (June 1, 2011). been prepared by the Exchange. The adopted include pilot plans for stock- 7 See Summary Report of the Committee, ‘‘Recommendations Regarding Regulatory 3 Commission is publishing this notice to by-stock trading pauses and related Responses to the Market Events of May 6, 2010’’ solicit comments on the proposed rule changes to the clearly erroneous (Feb, 18, 2011). The Exchange notes that NYSE change from interested persons. execution rules 4 and more stringent Euronext submitted a comment letter to the market maker quoting requirements.5 In Committee that recommended, among other things, I. Self-Regulatory Organization’s reform of the market-wide circuit breaker rules. See addition, on April 5, 2011, the equities Statement of the Terms of Substance of Letter to Elizabeth Murphy, Secretary, Commission, exchanges and FINRA filed a plan from Janet M. Kissane, SVP and Corporate the Proposed Rule Change pursuant to Rule 608 of Regulation NMS Secretary, NYSE Euronext (July 19, 2010). The The Exchange is filing with the to address extraordinary market proposed reforms set forth in this rule proposal Commission a proposal to modify BYX differ slightly from the changes recommended in that comment letter, and represent consensus 3 BYX Rule 11.18(d) (under the proposal, to be re- among the markets of how to address reform of the 19 17 CFR 200.30–3(a)(12). numbered as Rule 11.18(e)). market-wide circuit breakers. 1 15 U.S.C. 78s(b)(1). 4 BYX Rule 11.17. 8 See Securities Exchange Act Release No. 26198 2 17 CFR 240.19b–4. 5 BYX Rule 11.8(d). (Oct. 19, 1988).

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was intended to enable market Unless stocks are halted for the Third, the Exchange proposes to participants to establish equilibrium remainder of the trading day, price decrease the current Level 1, 2, and 3 between buying and selling interest and indications are disseminated during a declines of 10%, 20%, and 30% to a to ensure that market participants have Rule 11.18 market-wide trading halt for Level 1 Market Decline of 7%, a Level an opportunity to become aware of and stocks that comprise the DJIA. 2 Market Decline of 13%, and Level 3 respond to significant price movements. Market Decline of 20%. In particular, as Proposed Amendments Importantly, the market-wide circuit demonstrated by the May 6, 2010 flash breakers were not intended to prevent As noted above, the Exchange, other crash, the current Level 1 10% decline markets from adjusting to new price equities, options, and futures markets, may be too high a threshold before levels; rather, they provide for a speed and FINRA propose to amend the determining whether to halt trading bump for extremely rapid market market-wide circuit breakers to take into across all securities. In fact, since declines.9 consideration the recommendations of adoption, the markets have halted only In its current form,10 the rule provides the Committee, and to provide for more once, on October 27, 1997.13 for Level 1, 2, and 3 declines and meaningful measures in today’s markets Accordingly, to reflect the potential that specified trading halts following such of when to halt trading in all stocks. a lower, yet still significant decline may declines. The values of Levels 1, 2 and Accordingly, the Exchange proposes to warrant a market-wide trading halt, the 3 are calculated at the beginning of each amend Rule 11.18 as follows: (i) Replace Exchange proposes to lower the market calendar quarter, using 10%, 20% and the DJIA with the S&P 500; (ii) replace decline percentage thresholds. 30%, respectively, of the average closing the quarterly calendar recalculation of As further proposed, the Exchange value of the DJIA for the month prior to Rule 11.18 triggers with daily would halt trading based on a Level 1 the beginning of the quarter. Each recalculations: (iii) replace the 10%, or Level 2 Market Decline only once per percentage calculation is rounded to the 20%, and 30% market decline day. For example, if a Level 1 Market nearest fifty points to create the Levels’ percentages with 7%, 13%, and 20% Decline were to occur and trading were trigger points. The New York Stock market decline percentages; (iv) modify halted, following the reopening of Exchange LLC (‘‘NYSE’’) currently the length of the trading halts associated trading, the Exchange would not halt disseminates the new trigger levels with each market decline level; and (v) the market again unless a Level 2 quarterly to the media and via an modify the times when a trading halt Market Decline were to occur. Likewise, Information Memo and is [sic] available may be triggered. The Exchange believes following the reopening of trading after on the NYSE’s Web site.11 The values that these proposed amendments update a Level 2 Market Decline, the Exchange then remain in effect until the next the rule to reflect today’s high-speed, would not halt trading again unless a quarterly calculation, notwithstanding highly electronic trading market while Level 3 Market Decline were to occur, whether the DJIA has moved and a still meeting the original purpose of the at which point, trading in all stocks Level 1, 2, or 3 decline is no longer market-wide trading halt rule: to ensure would be halted until the primary equal to an actual 10%, 20%, or 30% that market participants have an listing market opens the next trading decline in the most recent closing value opportunity to become aware of and day. of the DJIA. respond to significant price movements. Fourth, to correspond with the lower Once a Rule 11.18 market-wide circuit First, the Exchange proposes to percentages associated with triggering a breaker is in effect, trading in all stocks replace the DJIA with the S&P 500. The trading halt, the Exchange also proposes halt for the time periods specified Exchange believes that because the S&P to shorten the length of the market-wide below: 500 is based on the trading prices of 500 trading halts associated with each Level. stocks, as compared to the 30 stocks that Level 1 Halt As proposed, a Level 1 or 2 Market comprise the DJIA, the S&P 500 Decline occurring after 9:30 a.m.14 and Anytime before 2 p.m.—one hour; at represents a broader base of securities up to and including 3:25 p.m., or in the or after 2 p.m. but before 2:30 p.m.—30 against which to measure whether case of an early scheduled close, 12:25 minutes; at or after 2:30 p.m.—trading extraordinary market-wide volatility is p.m., would result in a trading halt in shall continue, unless there is a Level 2 occurring. In addition, as noted by the all stocks for 15 minutes. Halt. Committee, using an index that The Exchange believes that by Level 2 Halt correlates closely with derivative reducing the percentage threshold, products, such as the E–Mini and SPY, coupled with the reduced length of a Anytime before 1 p.m.—two hours; at will allow for a better cross-market trading halt, the proposed rule would or after 1 p.m. but before 2 p.m.—one measure of market volatility. allow for trading halts for serious hour; at or after 2 p.m.—trading shall Second, the Exchange proposes to market declines, while at the same time, halt and not resume for the rest of the change the recalculation of the trigger would minimize disruption to the day. values from once every calendar quarter market by allowing for trading to Level 3 Halt to daily. The Exchange believes that continue after the proposed more- updating the trigger values daily will abbreviated trading halt. The Exchange at any time—trading shall halt and better reflect current market conditions. not resume for the rest of the day. believes that in today’s markets, where In particular, a daily recalculation will trading information travels in micro- ensure that the percentage drop triggers 9 Id. second speed, a 15-minute trading halt 10 The rule was last amended in 1998, when relate to current market conditions, and declines based on specified point drops in the DJIA are not compared to what may be stale calculations, as well as the manner by which the were replaced with the current methodology of market conditions. As noted in the markets will halt trading in all stocks should a Rule using a percentage decline that is recalculated proposed rule, the daily calculations of 11.18 market-wide trading halt be triggered. quarterly. See Securities Exchange Act Release No. 13 At that time, the triggers were based on 39846 (April 9, 1998), 63 FR 18477 (April 15, 1998) the trigger values will be published absolute declines in the DJIA (350 point decrease 12 (SR–NYSE–98–06, SR–Amex–98–09, SR–BSE–98– before the trading day begins. for a Level 1 halt and 550 point decrease for a Level 06, SR–CHX–98–08, SR–NASD–98–27, and SR– 2 halt). Phlx–98–15). 12 The Exchange and other markets will advise 14 As set forth in proposed paragraph (g) to Rule 11 See, e.g., NYSE Regulation Information Memos [sic] provide notice to market participants regarding 11.18, all times referenced in the rule and in this 11–19 (June 30, 2011) and 11–10 (March 31, 2011). the specific methodology for publishing the daily proposal are Eastern Time.

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strikes the appropriate balance between and regulations thereunder that are interact with the existing single-stock the need to halt trading for market applicable to a national securities circuit breaker pilot program 17 or, if participants to assess the market, while exchange, and, in particular, with the approved, the proposed NMS Plan to at the same time reducing the time that requirements of Section 6(b) of the establish a limit-up/limit-down the market is halted. Act.15 In particular, the proposal is mechanism for individual securities? 18 Finally, because the proposed Level 1 consistent with Section 6(b)(5) of the • To what extent could the and Level 2 trading halts will now be Act,16 because it would promote just concurrent triggering of single stock 15 minutes, the Exchange proposes and equitable principles of trade, circuit breakers in many S&P 500 Index amending the rule to allow for a Level remove impediments to, and perfect the stocks lead to difficulties in calculating 1 or 2 Market Decline to trigger a trading mechanism of, a free and open market the index? Would the triggering of many halt up to 3:25 p.m., or in the case of and a national market system. single stock circuit breakers in a general an early scheduled close, 12:25 p.m. Specifically, this rule proposal supports market downturn cause the index Under the current rule, a trading halt the objectives of perfecting the calculation to become stale and thereby cannot be triggered after 2:30 p.m., and mechanism of a free and open market delay the triggering of the market-wide this time corresponds to the need for the and the national market system because circuit breaker? markets both to reopen following a 30- it promotes uniformity across markets • Should the market-wide circuit minute halt and to engage in a fair and concerning when and how to halt breaker be triggered if a sufficient orderly closing process. However, as the trading in all stocks as a result of number of single-stock circuit breakers markets experienced on May 6, 2010, extraordinary market volatility. or price limits are triggered, and even if the Level 1 decline had occurred materially affect calculations of the S&P that day, because the market decline B. Self-Regulatory Organization’s 500 Index? occurred after 2:30 p.m., it would not Statement on Burden on Competition • Should market centers implement have triggered a halt under the current The Exchange does not believe that rule. The Committee recommended that rules that mandate cancellation of the proposed rule change imposes any pending orders in the event a market- trading halts be triggered up to 3:30 p.m. burden on competition. The Exchange agrees that the proposed wide circuit breaker is triggered? If so, amendments must strike the appropriate C. Self-Regulatory Organization’s should such a rule require cancellation balance between permitting trading Statement on Comments on the of all orders or only certain order types halts as late in the day as feasible Proposed Rule Change Received From (e.g., limit orders)? Should all trading without interrupting the closing Members, Participants, or Others halts trigger such cancellation policies process. The Exchange has neither solicited or should the cancellation policies Accordingly, to accommodate existing nor received written comments on the apply only to a Level 3 Market Decline? • Exchange rules concerning closing proposed rule change. Should some provision be made to procedures, the Exchange proposes that end the regular trading session if a the last Level 1 or Level 2 Market III. Date of Effectiveness of the market decline suddenly occurs after Decline trading halt should be 3:25 Proposed Rule Change and Timing for 3:25 p.m. but does not reach the 20% p.m., or in the case of an early Commission Action level? scheduled close, 12:25 p.m. Within 45 days of the date of • In the event of a Level 3 Market As with current Level 3 declines, publication of this notice in the Federal Decline, should some provision be made under the proposed rule, a Level 3 Register or within such longer period (i) for the markets to hold a closing Market Decline would halt trading for As the Commission may designate up to auction? the remainder of the trading day, 90 days of such date if it finds such • Should the primary market have a including any trading that may take longer period to be appropriate and longer period (e.g., 30 minutes) to place after 4:00 p.m., and would not publishes its reasons for so finding or reopen trading following a Level 2 resume until the next trading day. (ii) as to which the Exchange consents, Market Decline before trading resumes In addition to these proposed the Commission will: in other venues? changes, the Exchange proposes to add A. By order approve or disapprove • In the event of a Level 3 Market to Rule 11.18 how the markets will such proposed rule change, or Decline, should the markets wait for the reopen following a 15-minute market- B. Institute proceedings to determine primary market to reopen trading in a wide trading halt. In particular, similar whether the proposed rule change particular security on the next trading to the reopening procedures set forth in should be disapproved. day before trading in that security current Rule 11.18(d), the Exchange resumes? proposes that if the primary listing IV. Solicitation of Comments market halts trading in all stocks, all Interested persons are invited to Comments may be submitted by any markets will halt trading in those stocks submit written data, views, and of the following methods: until the primary listing market has arguments concerning the foregoing, resumed trading or notice has been including whether the proposed 17 See Securities Exchange Act Release No. 64735 (June 23, 2011), 76 FR 38243 (June 29, 2011) (SR– provided by the primary listing market changes to the market-wide circuit BATS–2011–016; SR–BYX–2011–011; SR–BX– that trading may resume. As further breaker regime are consistent with the 2011–025; SR–CBOE–2011–049; SR–CHX–2011–09; proposed, if the primary listing market Act. The Commission specifically SR–EDGA–2011–15; SR–EDGX–2011–14; SR– does not re-open a security within 15 requests comment on the following: FINRA–2011–023; SR–ISE–2011–028; SR– • NASDAQ–2011–067; SR–NYSE–2011–21; SR– minutes following the end of the trading As discussed above, the proposed NYSEAmex–2011–32; SR–NYSEArca–2011–26; SR– halt, other markets may resume trading rule change would narrow the NSX–2011–06; SR–Phlx–2011–64) (approving the in that security. percentage market declines that would ‘‘Phase III Pilot Program’’). The Phase III Pilot trigger a market-wide halt in trading. Program has been extended through January 2012. 2. Statutory Basis See, e.g., Securities Exchange Act Release 65094 How would the proposed changes (August 10, 2011), 76 FR 50779 (August 16, 2011) The Exchange believes that its (SR–NASDAQ–2011–011). proposal is consistent with the 15 15 U.S.C. 78f(b). 18 See Securities Exchange Act Release No. 64547 requirements of the Act and the rules 16 15 U.S.C. 78f(b)(5). (May 25, 2011), 76 FR 31647 (June 1, 2011).

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Electronic Comments SECURITIES AND EXCHANGE forth in sections A, B, and C below, of the most significant aspects of such • COMMISSION Use the Commission’s Internet statements. comment form (http://www.sec.gov/ [Release No. 34–65428; File No. SR–BX– rules/sro.shtml); or 2011–068] A. Self-Regulatory Organization’s • Statement of the Purpose of, and Send an e-mail to rule- Self-Regulatory Organizations; Statutory Basis for, the Proposed Rule [email protected]. Please include File NASDAQ OMX BX, Inc.; Notice of Filing Change Number SR–BYX–2011–025 on the of Proposed Rule Change To Revise subject line. the Methodology for Determining 1. Purpose When to Halt Trading Due to Paper Comments The Exchange proposes to amend Extraordinary Market Volatility Exchange Rule 4121 to revise the • Send paper comments in triplicate September 28, 2011. current methodology for determining to Elizabeth M. Murphy, Secretary, Pursuant to Section 19(b)(1) of the when to halt trading in all stocks due to Securities and Exchange Commission, Securities Exchange Act of 1934 extraordinary market volatility. The 100 F Street, NE, Washington, DC (‘‘Act’’),1 and Rule 19b–4 2 thereunder, Exchange is proposing this rule change 20549–1090. notice is hereby given that on in consultation with other equity, options, and futures markets, the All submissions should refer to File September 27, 2011, NASDAQ OMX BX, Inc. (‘‘BX’’ or ‘‘Exchange’’) filed Financial Industry Regulatory Number SR–BYX–2011–025. This file Authority, Inc. (‘‘FINRA’’), and staffs of number should be included on the with the Securities and Exchange Commission (‘‘SEC’’ or ‘‘Commission’’) the Commission and the Commodity subject line if e-mail is used. To help the the proposed rule change as described Futures Trading Commission. Commission process and review your in Items I, II, and III, below, which Items Since May 6, 2010, when the markets comments more efficiently, please use have been prepared by the Exchange. experienced excessive volatility in an only one method. The Commission will The Commission is publishing this abbreviated time period, i.e., the ‘‘flash post all comments on the Commission’s notice to solicit comments on the crash,’’ the exchanges and FINRA have Internet Web site (http://www.sec.gov/ proposed rule change from interested implemented market-wide measures rules/sro.shtml). Copies of the persons. designed to restore investor confidence submission, all subsequent by reducing the potential for excessive amendments, all written statements I. Self-Regulatory Organization’s market volatility. Among the measures with respect to the proposed rule Statement of the Terms of Substance of adopted include pilot plans for stock- change that are filed with the the Proposed Rule Change by-stock trading pauses 5 and related Commission, and all written The Exchange, pursuant to Section changes to the clearly erroneous communications relating to the 19(b)(1) of the Act 3 and Rule 19b–4 execution rules 6 and more stringent 7 proposed rule change between the thereunder,4 proposes to amend market maker quoting requirements. In Commission and any person, other than Exchange Rule 4121 to revise the addition, on April 5, 2011, the equities those that may be withheld from the methodology for determining when to exchanges and FINRA filed a plan public in accordance with the halt trading in all stocks due to pursuant to Rule 608 of Regulation NMS to address extraordinary market provisions of 5 U.S.C. 552, will be extraordinary market volatility. The volatility (the ‘‘Limit Up-Limit Down available for Web site viewing and proposal is made in conjunction with all Plan’’).8 As proposed, the Limit Up- printing in the Commission’s Public national securities exchanges and the Financial Industry Regulatory Authority Limit Down Plan is designed to prevent Reference Room, 100 F Street, NE., trades in individual NMS stocks from Washington, DC 20549, on official (‘‘FINRA’’). The text of the proposed rule change occurring outside specified price bands. business days between the hours of is available on the Exchange’s Web site The Joint CFTC–SEC Advisory 10 a.m. and 3 p.m. Copies of such filing at http:// Committee on Emerging Regulatory also will be available for inspection and nasdaqomxbx.cchwallstreet.com, at the Issues (‘‘Committee’’) has recommended copying at the principal office of the principal office of the Exchange, and at that, in addition to the initiatives Exchange. All comments received will the Commission’s Public Reference already adopted or proposed, the be posted without change; the Room. markets should consider reforming the Commission does not edit personal existing market-wide circuit breakers. identifying information from II. Self-Regulatory Organization’s Among other things, the Committee submissions. You should submit only Statement of the Purpose of, and noted that the interrelatedness of information that you wish to make Statutory Basis for, the Proposed Rule today’s highly electronic markets publicly available. All submissions Change warrants the need to review the present should refer to File Number SR–BYX– In its filing with the Commission, the operation of the system-wide circuit 2011–025 and should be submitted on Exchange included statements breakers now in place. Specifically, the or before October 25, 2011. concerning the purpose of and basis for Committee recommended that the the proposed rule change and discussed markets consider replacing the Dow For the Commission, by the Division of any comments it received on the Jones Industrial Average (‘‘DJIA’’) with Trading and Markets, pursuant to delegated proposed rule change. The text of these the S&P 500® Index (‘‘S&P 500’’), authority.19 statements may be examined at the revising the 10%, 20%, and 30% Elizabeth M. Murphy, places specified in Item IV below. The decline percentages, reducing the length Secretary. Exchange has prepared summaries, set [FR Doc. 2011–25510 Filed 10–3–11; 8:45 am] 5 BX Rule 4120(a)(11). 1 15 U.S.C. 78s(b)(1). 6 BILLING CODE 8011–01–P BX Rule 11890. 2 17 CFR 240.19b–4. 7 BX Rule 4613. 3 15 U.S.C. 78s(b)(1). 8 See Securities Exchange Act Release No. 64547 19 17 CFR 200.30–3(a)(12). 4 17 CFR 240.19b–4. (May 25, 2011), 76 FR 31647 (June 1, 2011).

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of trading halts, and allowing halts to be 30%, respectively, of the average closing First, the Exchange proposes to triggered up to 3:30 p.m.9 value of the DJIA for the month prior to replace the DJIA with the S&P 500. The The exchanges and FINRA have taken the beginning of the quarter. Each Exchange believes that because the S&P into consideration the Committee’s percentage calculation is rounded to the 500 is based on the trading prices of 500 recommendations, and with some nearest fifty points to create the Levels’ stocks, as compared to the 30 stocks that modifications, have proposed changes trigger points. The values then remain comprise the DJIA, the S&P 500 to market-wide circuit breakers that the in effect until the next quarterly represents a broader base of securities Exchange believes will provide for a calculation, notwithstanding whether against which to measure whether more meaningful measure in today’s the DJIA has moved and a Level 1, 2, or extraordinary market-wide volatility is faster, more electronic markets, of when 3 decline is no longer equal to an actual occurring. In addition, as noted by the to halt stocks on a market-wide basis as 10%, 20%, or 30% decline in the most Committee, using an index that a result of rapid market declines. recent closing value of the DJIA. correlates closely with derivative Background Once a marketwide circuit breaker is products, such as the E-Mini and SPY, in effect, trading in all stocks halt for the will allow for a better cross-market The Exchange adopted Rule 4121 in time periods specified below: measure of market volatility. 2008. Rule 4121 provides that upon SEC Second, the Exchange proposes to request the Exchange will halt all Level 1 Halt change the recalculation of the trigger domestic trading in both securities Anytime before 2 p.m.—one hour; at values from once every calendar quarter listed on Nasdaq and securities traded or after 2 p.m. but before 2:30 p.m.—30 to daily. The Exchange believes that [sic] the Exchange pursuant to unlisted minutes; at or after 2:30 p.m.—trading updating the trigger values daily will trading privileges if other major shall continue, unless there is a Level 2 better reflect current market conditions. securities markets initiate marketwide In particular, a daily recalculation will trading halts in response to Halt. ensure that the percentage drop triggers extraordinary market conditions. In Level 2 Halt relate to current market conditions, and effect, the Exchange agreed via Rule are not compared to what may be stale 4121 to abide by marketwide halts Anytime before 1 p.m.—two hours; at market conditions. As noted in the called for by the SEC in conjunction or after 1 p.m. but before 2 p.m.—one proposed rule, the daily calculations of with other listing markets. The hour; at or after 2 p.m.—trading shall the trigger values will be published standards governing such halts were halt and not resume for the rest of the before the trading day begins.13 adopted in 1988 as part of an effort by day. Third, the Exchange proposes to the securities and futures markets to Level 3 Halt implement a coordinated means to decrease the current Level 1, 2, and 3 address potentially destabilizing market At any time—trading shall halt and declines of 10%, 20%, and 30% to a volatility.10 not resume for the rest of the day. Level 1 Market Decline of 7%, a Level The purpose of a marketwide halt, as Unless stocks are halted for the 2 Market Decline of 13%, and Level 3 embodied in Rule 4121, is to enable remainder of the trading day, price Market Decline of 20%. In particular, as market participants to establish an indications are disseminated during a demonstrated by the May 6, 2010 flash equilibrium between buying and selling Rule 80B trading halt for stocks that crash, the current Level 1 10% decline interest and to ensure that market comprise the DJIA. may be too high a threshold before determining whether to halt trading participants have an opportunity to Proposed Amendments become aware of and respond to across all securities. In fact, since significant price movements. As noted above, the Exchange, other adoption, the markets have halted only Importantly, the market-wide circuit equities, options, and futures markets, once, on October 27, 1997.14 breakers were not intended to prevent and FINRA propose to amend the Accordingly, to reflect the potential that markets from adjusting to new price market-wide circuit breakers to take into a lower, yet still significant decline may levels; rather, they provide for a speed consideration the recommendations of warrant a market-wide trading halt, the bump for extremely rapid market the Committee, and to provide for more Exchange proposes to lower the market declines.11 meaningful measures in today’s markets decline percentage thresholds. The current standard, set forth in the of when to halt trading in all stocks. As further proposed, the Exchange rules of other exchanges,12 provides for Accordingly, the Exchange proposes to would halt trading based on a Level 1 Level 1, 2, and 3 declines and specified amend Rule 4121 to create the following or Level 2 Market Decline only once per trading halts following such declines. standards: (i) Replace the DJIA with the day. For example, if a Level 1 Market The values of Levels 1, 2 and 3 are S&P 500; (ii) replace the quarterly Decline were to occur and trading were calculated at the beginning of each calendar recalculation of Rule 80B halted, following the reopening of calendar quarter, using 10%, 20% and triggers with daily recalculations: (iii) trading, the Exchange would not halt replace the 10%, 20%, and 30% market the market again unless a Level 2 9 See Summary Report of the Committee, decline percentages with 7%, 13%, and Market Decline were to occur. Likewise, ‘‘Recommendations Regarding Regulatory 20% market decline percentages; (iv) following the reopening of trading after Responses to the Market Events of May 6, 2010’’ (Feb, 18, 2011). modify the length of the trading halts a Level 2 Market Decline, the Exchange 10 See Securities Exchange Act Release No. 26198 associated with each market decline would not halt trading again unless a (Oct. 19, 1988). level; and (v) modify the times when a 11 Id. trading halt may be triggered. The 13 The Exchange and other markets will advise via 12 Trader Update the specific methodology for The rule was last amended in 1998, when Exchange believes that these proposed declines based on specified point drops in the DJIA publishing the daily calculations, as well as the were replaced with the current methodology of amendments update the rule to reflect manner by which the markets will halt trading in using a percentage decline that is recalculated today’s high-speed, highly electronic all stocks should a Rule 4121 trading halt be quarterly. See Securities Exchange Act Release No. trading market while still ensuring that triggered. 39846 (April 9, 1998), 63 FR 18477 (April 15, 1998) 14 At that time, the triggers were based on (SR–NYSE–98–06, SR–Amex–98–09, SR–BSE–98– market participants have an opportunity absolute declines in the DJIA (350 point decrease 06, SR–CHX–98–08, SR–NASD–98–27, and SR– to become aware of and respond to for a Level 1 halt and 550 point decrease for a Level Phlx–98–15). significant price movements. 2 halt).

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Level 3 Market Decline were to occur, in the case of scheduled early closure, C. Self-Regulatory Organization’s at which point, trading in all stocks at 12:25 p.m.). The Exchange proposes Statement on Comments on the would be halted until the primary 3:25 p.m. as the cut-off time so that Proposed Rule Change Received From market opens the next trading day. there is time following the 15-minute Members, Participants, or Others Fourth, to correspond with the lower trading halt for the markets to reopen No written comments were either percentages associated with triggering a before the 3:45 cut-off for entry and solicited or received. trading halt, the Exchange also proposes cancellation of MOC and LOC orders to shorten the length of the market-wide under Exchange rules. III. Date of Effectiveness of the trading halts associated with each Level. Proposed Rule Change and Timing for As proposed, a Level 1 or 2 Market Under the proposed rule, a Level 3 Commission Action Decline occurring after 9:30 a.m. Eastern Market Decline would halt trading for Within 45 days of the date of and up to and including 3:25 p.m. the remainder of the trading day, publication of this notice in the Federal Eastern, would result in a trading halt including any trading that may take Register or within such longer period (i) in all stocks for 15 minutes. place after 4 p.m., Eastern, and would The Exchange believes that by not resume until the next trading day. as the Commission may designate up to reducing the percentage threshold, 90 days of such date if it finds such In addition to these proposed longer period to be appropriate and coupled with the reduced length of a changes, the Exchange proposes to add trading halt, the proposed rule would publishes its reasons for so finding or to Rule 4121 how the markets will (ii) as to which the Exchange consents, allow for trading halts for serious reopen following a 15-minute trading market declines, while at the same time, the Commission will: halt. In particular, the Exchange A. By order approve or disapprove would minimize disruption to the proposes that if the primary market market by allowing for trading to such proposed rule change, or halts trading in all stocks, all markets B. Institute proceedings to determine continue after the proposed more- will halt trading in those stocks until abbreviated trading halt. The Exchange whether the proposed rule change the primary market has resumed trading should be disapproved. believes that in today’s markets, where or notice has been provided by the trading information travels in micro- primary market that trading may IV. Solicitation of Comments second speed, a 15-minute trading halt resume. As further proposed, if the strikes the appropriate balance between Interested persons are invited to primary market does not re-open a the need to halt trading for market submit written data, views, and participants to assess the market, while security within 15 minutes following arguments concerning the foregoing, at the same time reducing the time that the end of the trading halt, other including whether the proposed the market is halted. markets may resume trading in that changes to the market-wide circuit Finally, because the proposed Level 1 security. breaker regime are consistent with the Act. The Commission specifically and Level 2 trading halts will now be 15 2. Statutory Basis minutes, the Exchange proposes requests comment on the following: • amending the rule to allow for a Level The statutory basis for the proposed As discussed above, the proposed 1 or 2 Market Decline to trigger a trading rule change is Section 6(b)(5) of the rule change would narrow the halt up to 3:25 p.m. (or, in the case of Securities Exchange Act of 1934 (the percentage market declines that would scheduled early closure, at 12:25 p.m.). ‘‘Act’’),15 which requires the rules of an trigger a market-wide halt in trading. Under the current rule, a trading halt exchange to promote just and equitable How would the proposed changes cannot be triggered after 2:30 p.m., and interact with the existing single-stock principles of trade, to remove 17 this time corresponds to the need for the impediments to and perfect the circuit breaker pilot program or, if markets both to reopen following a 30- mechanism of a free and open market approved, the proposed NMS Plan to establish a limit-up/limit-down minute halt and to engage in a fair and and a national market system and, in mechanism for individual securities? 18 orderly closing process. However, as the general, to protect investors and the • To what extent could the markets experienced on May 6, 2010, public interest. The proposed rule concurrent triggering of single stock even if the Level 1 decline had occurred change also is designed to support the circuit breakers in many S&P 500 Index that day, because the market decline principles of Section 11A(a)(1) 16 of the occurred after 2:30 p.m., it would not stocks lead to difficulties in calculating Act in that it seeks to assure fair have triggered a halt under the current the index? Would the triggering of many competition among brokers and dealers rule. The Committee recommended that single stock circuit breakers in a general and among exchange markets. The trading halts be triggered up to 3:30 p.m. market downturn cause the index Exchange believes that the proposed The Exchange agrees that the proposed calculation to become stale and thereby rule meets these requirements in that it amendments must strike the appropriate delay the triggering of the market-wide promotes transparency and uniformity balance between permitting trading circuit breaker? across markets concerning decisions to halts as late in the day as feasible without interrupting the closing pause trading in a security when there 17 See Securities Exchange Act Release No. 64735 process. are significant price movements. (June 23, 2011), 76 FR 38243 (June 29, 2011) (SR– BATS–2011–016; SR–BYX–2011–011; SR–BX– Accordingly, to accommodate existing B. Self-Regulatory Organization’s 2011–025; SR–CBOE–2011–049; SR–CHX–2011–09; rules at other Exchange [sic] concerning Statement on Burden on Competition SR–EDGA–2011–15; SR–EDGX–2011–14; SR– closing procedures, including the FINRA–2011–023; SR–ISE–2011–028; SR– publication of imbalance information The Exchange does not believe that NASDAQ–2011–067; SR–NYSE–2011–21; SR– NYSEAmex–2011–32; SR–NYSEArca–2011–26; SR– beginning at 3:50 p.m. and the the proposed rule change will impose NSX–2011–06; SR–Phlx–2011–64) (approving the restrictions on entry and cancellation of any burden on competition not ‘‘Phase III Pilot Program’’). The Phase III Pilot market on close (‘‘MOC’’) and limit on necessary or appropriate in furtherance Program has been extended through January 2012. close (‘‘LOC’’) orders after 3:45 p.m., the of the purposes of the Act. See, e.g., Securities Exchange Act Release 65094 (August 10, 2011), 76 FR 50779 (August 16, 2011) Exchange proposes that the last Level 1 (SR–NASDAQ–2011–011). or Level 2 Market Decline trading halt 15 15 U.S.C. 78f(b)(5). 18 See Securities Exchange Act Release No. 64547 should begin no later than 3:25 p.m. (or, 16 15 U.S.C. 78k–1(a)(1). (May 25, 2011), 76 FR 31647 (June 1, 2011).

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• Should the market-wide circuit communications relating to the I. Self-Regulatory Organization’s breaker be triggered if a sufficient proposed rule change between the Statement of the Terms of Substance of number of single-stock circuit breakers Commission and any person, other than the Proposed Rule Change or price limits are triggered, and those that may be withheld from the The Exchange proposes to adopt Rule materially affect calculations of the S&P public in accordance with the 2102(g) to set forth the methodology for 500 Index? provisions of 5 U.S.C. 552, will be • determining when trading in all stocks Should market centers implement available for Web site viewing and will be halted due to extraordinary rules that mandate cancellation of printing in the Commission’s Public market volatility. pending orders in the event a market- Reference Room, 100 F Street, NE., The text of the proposed rule change wide circuit breaker is triggered? If so, Washington, DC 20549, on official is available on the Exchange’s Internet should such a rule require cancellation business days between the hours of 10 Web site at http://www.ise.com, at the of all orders or only certain order types a.m. and 3 p.m. Copies of such filing principal office of the Exchange, at the (e.g., limit orders)? Should all trading Commission’s Public Reference Room, halts trigger such cancellation policies also will be available for inspection and copying at the principal office of the and at the Commission’s Web site at or should the cancellation policies http://www.sec.gov. apply only to a Level 3 Market Decline? Exchange. All comments received will • Should some provision be made to be posted without change; the II. Self-Regulatory Organization’s end the regular trading session if a Commission does not edit personal Statement of the Purpose of, and market decline suddenly occurs after identifying information from Statutory Basis for, the Proposed Rule 3:25 p.m. but does not reach the 20% submissions. You should submit only Change level? information that you wish to make • In its filing with the Commission, the In the event of a Level 3 Market publicly available. All submissions self-regulatory organization included Decline, should some provision be made should refer to File Number SR–BX– statements concerning the purpose of, for the markets to hold a closing 2011–068 and should be submitted on and basis for, the proposed rule change auction? or before October 25, 2011. and discussed any comments it received • Should the primary market have a For the Commission, by the Division of on the proposed rule change. The text longer period (e.g., 30 minutes) to of these statements may be examined at reopen trading following a Level 2 Trading and Markets, pursuant to delegated 19 the places specified in Item IV below. Market Decline before trading resumes authority. Elizabeth M. Murphy, The self-regulatory organization has in other venues? prepared summaries, set forth in • In the event of a Level 3 Market Secretary. sections A, B and C below, of the most Decline, should the markets wait for the [FR Doc. 2011–25509 Filed 10–3–11; 8:45 am] significant aspects of such statements. primary market to reopen trading in a BILLING CODE 8011–01–P particular security on the next trading A. Self-Regulatory Organization’s day before trading in that security Statement of the Purpose of, and resumes? SECURITIES AND EXCHANGE Statutory Basis for, the Proposed Rule Comments may be submitted by any COMMISSION Change of the following methods: 1. Purpose Electronic Comments [Release No. 34–65425; File No. SR–ISE– The Exchange proposes to adopt • Use the Commission’s Internet 2011–61] section (g) of Rule 2102 to set forth the comment form (http://www.sec.gov/ current methodology for determining Self-Regulatory Organizations; rules/sro.shtml); or when trading in all stocks will be halted International Securities Exchange, • Send an e-mail to rule- due to extraordinary market volatility. [email protected]. Please include File LLC; Notice of Proposed Rule Change The Exchange is proposing this rule Number SR–BX–2011–068 on the Related to Trading Halts Due to change in consultation with other subject line. Extraordinary Market Volatility equity, options and futures markets, the Paper Comments September 28, 2011. Financial Industry Regulatory • Authority, Inc. (‘‘FINRA’’) and staffs of Send paper comments in triplicate Pursuant to Section 19(b)(1) of the the Commission and the Commodity to Elizabeth M. Murphy, Secretary, Securities Exchange Act of 1934 Futures Trading Commission. Securities and Exchange Commission, (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 Since May 6, 2010, when the markets 100 F Street, NE., Washington, DC notice is hereby given that on experienced excessive volatility in an 20549–1090. September 27, 2011, the International abbreviated time period, i.e., the ‘‘flash All submissions should refer to File Securities Exchange, LLC (‘‘Exchange’’ crash,’’ the exchanges and FINRA have Number SR–BX–2011–068. This file or ‘‘ISE’’) filed with the Securities and implemented market-wide measures number should be included on the Exchange Commission (‘‘SEC’’ or designed to restore investor confidence subject line if e-mail is used. To help the ‘‘Commission’’) the proposed rule by reducing the potential for excessive Commission process and review your change as described in Items I and II market volatility. Among the measures comments more efficiently, please use below, which Items have been prepared adopted include pilot plans for stock- only one method. The Commission will 3 by the Exchange. The Commission is by-stock trading pauses and related post all comments on the Commission’s publishing this notice to solicit changes to the clearly erroneous Internet Web site (http://www.sec.gov/ 4 comments on the proposed rule change execution rules. In addition, on April rules/sro.shtml). Copies of the from interested persons. 5, 2011, the equities exchanges and submission, all subsequent FINRA filed a plan pursuant to Rule 608 amendments, all written statements of Regulation NMS to address with respect to the proposed rule 19 17 CFR 200.30–3(a)(12). change that are filed with the 1 15 U.S.C. 78s(b)(1). 3 ISE Rule 2102(f). Commission, and all written 2 17 CFR 240.19b–4. 4 ISE Rule 2128.

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extraordinary market volatility (the breakers were not intended to prevent Accordingly, the Exchange proposes to ‘‘Limit Up-Limit Down Plan’’).5 As markets from adjusting to new price adopt Rule 2102(g), which will reflect proposed, the Limit Up-Limit Down levels; rather, they provide for a speed the follows [sic] changes to current Plan is designed to prevent trades in bump for extremely rapid market NYSE Rule 80B: (i) Replace the DJIA individual NMS stocks from occurring declines.7 with the S&P 500; (ii) replace the outside specified price bands. In its current form, the rule provides quarterly calendar recalculation of The Joint CFTC-SEC Advisory for Level 1, 2 and 3 declines and NYSE Rule 80B triggers with daily Committee on Emerging Regulatory specified trading halts following such recalculations; (iii) replace the 10%, Issues (‘‘Committee’’) has recommended declines (each a ‘‘Level 1, 2 or 3 Halt,’’ 20% and 30% market decline that, in addition to the initiatives respectively). The values of Levels 1, 2 percentages with 7%, 13% and 20% already adopted or proposed, the and 3 are calculated at the beginning of market decline percentages (each a markets should consider reforming the each calendar quarter by the primary ‘‘Level 1, 2 or 3 Market Decline,’’ existing market-wide circuit breakers. listing market, using 10%, 20% and respectively); (iv) modify the length of Among other things, the Committee 30%, respectively, of the average closing the trading halts associated with each noted that the interrelatedness of value of the DJIA for the month prior to market decline level; and (v) modify the today’s highly electronic markets the beginning of the quarter. Each times when a trading halt may be warrants the need to review the present percentage calculation is rounded to the triggered. The Exchange believes that operation of the system-wide circuit nearest fifty points to create the levels’ these proposed amendments update the breakers now in place. Specifically, the trigger points. The primary listing rule to reflect today’s high-speed, highly Committee recommended that the markets disseminate the new trigger electronic trading market while still markets consider replacing the Dow levels quarterly to the media, via meeting the original purpose of the rule: Jones Industrial Average (‘‘DJIA’’) with To ensure that market participants have ® information memos and publication on the S&P 500 Index (‘‘S&P 500’’), their Web sites. The values then remain an opportunity to become aware of and revising the 10%, 20% and 30% decline in effect until the next quarterly respond to significant price movements. percentages, reducing the length of calculation, notwithstanding whether First, the Exchange proposes to trading halts, and allowing halts to be the DJIA has moved and a Level 1, 2 or replace the DJIA with the S&P 500. The 6 triggered up to 3:30 p.m. 3 decline is no longer equal to an actual Exchange believes that because the S&P The exchanges and FINRA have taken 10%, 20% or 30% decline in the most 500 is based on the trading prices of 500 into consideration the Committee’s recent closing value of the DJIA. stocks, as compared to the 30 stocks that recommendations, and with some Once a NYSE Rule 80B circuit breaker comprise the DJIA, the S&P 500 modifications, have proposed changes is in effect, trading in all stocks halt for represents a broader base of securities to market-wide circuit breakers. The the time periods specified below: against which to measure whether Exchange believes these proposed extraordinary market-wide volatility is changes will provide for a more Level 1 Halt occurring. In addition, as noted by the meaningful measure, in today’s faster, Anytime before 2 p.m.—one hour; at Committee, using an index that more electronic markets, of when to halt or after 2 p.m. but before 2:30 p.m.—30 correlates closely with derivative stocks on a market-wide basis as a result minutes; at or after 2:30 p.m.—trading products, such as the E–Mini and SPDR of rapid market declines. shall continue, unless there is a Level 2 S&P 500 Exchange-Traded Fund (‘‘SPY’’), will allow for a better cross- Background Halt. market measure of market volatility. New York Stock Exchange (‘‘NYSE’’) Level 2 Halt Second, the Exchange proposes to Rule 80B provides for market-wide halts Anytime before 1 p.m.—two hours; at change the recalculation of the trigger in trading at specified levels in order to or after 1 p.m. but before 2 p.m.—one values from once every calendar quarter promote stability and investor hour; at or after 2 p.m.—trading shall to daily. The Exchange believes that confidence during a period of halt and not resume for the rest of the updating the trigger values daily will significant stress. As the Commission day. better reflect current market conditions. noted in its approval order, the rule was In particular, a daily recalculation will intended to enable market participants Level 3 Halt ensure that the percentage drop triggers to establish equilibrium between buying At any time—trading shall halt and relate to current market conditions, and and selling interest and to ensure that not resume for the rest of the day. are not compared to what may be stale market participants have an opportunity Unless stocks are halted for the market conditions. As noted in the to become aware of and respond to remainder of the trading day, price proposed rule, the daily calculations of significant price movements. indications are disseminated by the the trigger values will be published Importantly, the market-wide circuit primary listing market during a NYSE before the trading day begins.8 Rule 80B trading halt for stocks that Third, the Exchange proposes to 5 See Securities Exchange Act Release No. 64547 comprise the DJIA. decrease the current Level 1, 2 and 3 (May 25, 2011), 76 FR 31647 (June 1, 2011). declines of 10%, 20% and 30% to a 6 See Summary Report of the Committee, Proposed Amendments Level 1 Market Decline of 7%, a Level ‘‘Recommendations Regarding Regulatory Responses to the Market Events of May 6, 2010’’ As noted above, the Exchange, other 2 Market Decline of 13% and Level 3 (Feb, 18, 2011). The Exchange notes that NYSE equities, options, and futures markets, Market Decline of 20%. In particular, as Euronext submitted a comment letter to the and FINRA propose to amend the demonstrated by the May 6, 2010 flash Committee that recommended, among other things, crash, the current Level 1 10% decline reform of the market-wide circuit breaker rules. See market-wide circuit breakers to take into Letter to Elizabeth Murphy, Secretary, Commission, consideration the recommendations of may be too high a threshold for from Janet M. Kissane, SVP and Corporate the Committee, and to provide for more Secretary, NYSE Euronext (July 19, 2010). The meaningful measures in today’s markets 8 The primary listing markets will advise via proposed reforms set forth in this rule proposal Trader Update the specific methodology for differ slightly from the changes recommended in of when to halt trading in all stocks. publishing the daily calculations, as well as the that comment letter, and represent consensus manner by which the markets will halt trading in among the markets of how to address reform of the 7 See Securities Exchange Act Release No. 26198 all stocks should a Rule 11.14 trading halt be market-wide circuit breakers. (Oct. 19, 1988). triggered.

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determining whether to halt trading halt and to engage in a fair and orderly ISE Rule 2102(e) governs trading halts across all securities. In fact, since closing process. However, as the in new derivative securities products adoption, the markets have halted only markets experienced on May 6, 2010, when a temporary interruption occurs once, on October 27, 1997.9 even if the Level 1 decline had occurred in the calculation or wide dissemination Accordingly, to reflect the potential that that day, because the market decline of the intraday indicative value (‘‘IIV’’) a lower, yet still significant decline may occurred after 2:30 p.m., it would not or the value of the underlying index by warrant a market-wide trading halt, the have triggered a halt under the current a major market data vendor. Therefore, Exchange proposes to lower the market rule. The Committee recommended that ISE is clarifying that this subsection decline percentage thresholds. trading halts be triggered up to 3:30 p.m. applies to halts in new derivative As further proposed, trading on the The Exchange agrees that the proposed securities products and proposed ISE Exchange will be halted based on a amendments must strike the appropriate Rule 2102(g) applies to trading halts due Level 1 or Level 2 Market Decline only balance between permitting trading to extraordinary market volatility. once per day. For example, if a Level 1 halts as late in the day as feasible 2. Statutory Basis Market Decline was to occur and trading without interrupting the closing was halted, following the re-opening of process. The statutory basis for the proposed trading, trading would not halt again Accordingly, to accommodate existing rule change is Section 6(b)(5) of the unless a Level 2 Market Decline was to primary listing market rules concerning Act,13 which require that an Exchange occur. Likewise, following the re- closing procedures, including the have rules that are designed to promote publication of imbalance information opening of trading after a Level 2 Market just and equitable principles of trade, to beginning at 3:45 p.m. and the Decline, trading would not be halted remove impediments to and perfect the restrictions on entry and cancellation of again unless a Level 3 Market Decline mechanism of a free and open market market on close (‘‘MOC’’) and limit on was to occur, at which point, trading in and a national market system and, in close (‘‘LOC’’) orders after 3:45 p.m.,11 all stocks would be halted until the general, to protect investors and the the Exchange proposes that the last primary listing market opens the next public interest. Specifically, this rule Level 1 or Level 2 Market Decline trading day. proposal supports the objectives of trading halt should be 3:25 p.m. The Fourth, to correspond with the lower perfecting the mechanism of a free and Exchange proposes 3:25 p.m. as the cut- percentages associated with triggering a open market and the national market off time so that there is time following trading halt, the Exchange also proposes system because it promotes uniformity the 15-minute trading halt for the to shorten the length of the market-wide across markets concerning when and trading halts associated with each level. markets to re-open before the 3:45 p.m. cut-off for entry and cancellation of how to halt trading in all stocks as a As proposed, a Level 1 or 2 Market result of extraordinary market volatility. Decline occurring after 9:30 a.m. Eastern MOC and LOC orders under primary 12 Time (‘‘ET’’) 10 and up to and including listing market rules. B. Self-Regulatory Organization’s As with current Level 3 declines, 3:25 p.m. ET, would result in a trading Statement on Burden on Competition under the proposed rule, a Level 3 halt in all stocks for 15 minutes. Market Decline would halt trading for The proposed rule change does not The Exchange believes that by the remainder of the trading day, impose any burden on competition that reducing the percentage threshold, including any trading that may take is not necessary or appropriate in coupled with the reduced length of a place after 4:00 p.m. and would not furtherance of the purposes of the Act. trading halt, the proposed rule would resume until the next trading day. C. Self-Regulatory Organization’s allow for trading halts for serious In addition to these proposed Statement on Comments on the market declines, while at the same time, changes, the Exchange proposes to add Proposed Rule Change Received From would minimize disruption to the to Rule 2102(g) how the Exchange will Members, Participants, or Others market by allowing for trading to re-open following a 15-minute trading continue after the proposed more- halt and to Rule 2102(f) how the abbreviated trading halt. The Exchange The Exchange has not solicited, and Exchange will re-open following a 10- does not intend to solicit, comments on believes that in today’s markets, where minute trading pause. In particular, the trading information travels in micro- this proposed rule change. The Exchange proposes that if the primary Exchange has not received any second speeds, a 15-minute trading halt listing market halts trading in all stocks, strikes the appropriate balance between unsolicited written comments from the Exchange will halt trading in those members or other interested parties. the need to halt trading for market stocks until the primary listing market participants to assess the market, while has resumed trading or notice has been III. Date of Effectiveness of the at the same time reducing the time that provided by the primary listing market Proposed Rule Change and Timing for the market is halted. that trading may resume. As further Commission Action Finally, because the proposed Level 1 proposed, if the primary listing market and Level 2 trading halts will now be 15 Within 45 days of the date of does not re-open a security within 15 publication of this notice in the Federal minutes, the Exchange proposes minutes following the end of the trading amending the rule to allow for a Level Register or within such longer period (i) halt, or within 10 minutes following the As the Commission may designate up to 1 or 2 Market Decline to trigger a trading end of a trading pause, the Exchange halt up to 3:25 p.m. Under the current 90 days of such date if it finds such may resume trading in that security. longer period to be appropriate and rule, a trading halt cannot be triggered As a result of the proposed changes publishes its reasons for so finding or after 2:30 p.m., and this time described above, the Exchange proposes (ii) as to which the self-regulatory corresponds to the need for the markets to clarify that 2102(e) applies to trading organization consents, the Commission both to re-open following a 30-minute halts in new derivative securities, so as will: to not be confused with newly proposed 9 At that time, the triggers were based on absolute (A) By order approve or disapprove declines in the DJIA (350 point decrease for a Level provisions for trading halts in 2102(g). 1 halt and 550 point decrease for a Level 2 halt). such proposed rule change, or 10 The Exchange notes that all times listed 11 See, e.g., NYSE Rule 123C. throughout this filing are in Eastern Time. 12 Id. 13 15 U.S.C. 78f(b)(5).

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(B) Institute proceedings to determine • In the event of a Level 3 Market should refer to File Number SR–ISE– whether the proposed rule change Decline, should some provision be made 2011–61 and should be submitted on or should be disapproved. for the markets to hold a closing before October 25, 2011. auction? IV. Solicitation of Comments • For the Commission, by the Division of Should the primary market have a Trading and Markets, pursuant to delegated Interested persons are invited to longer period (e.g., 30 minutes) to authority.16 submit written data, views, and reopen trading following a Level 2 Elizabeth M. Murphy, Market Decline before trading resumes arguments concerning the foregoing, Secretary. including whether the proposed in other venues? [FR Doc. 2011–25508 Filed 10–3–11; 8:45 am] changes to the market-wide circuit • In the event of a Level 3 Market breaker regime are consistent with the Decline, should the markets wait for the BILLING CODE 8011–01–P Act. The Commission specifically primary market to reopen trading in a requests comment on the following: particular security on the next trading • day before trading in that security SECURITIES AND EXCHANGE As discussed above, the proposed COMMISSION rule change would narrow the resumes? percentage market declines that would Comments may be submitted by any [Release No. 34–65419 ; File No. SR– trigger a market-wide halt in trading. of the following methods: Nasdaq-2011–133] How would the proposed changes Electronic Comments interact with the existing single-stock Self-Regulatory Organizations; Notice • Use the Commission’s Internet circuit breaker pilot program 14 or, if of Filing and Immediate Effectiveness comment form (http://www.sec.gov/ approved, the proposed NMS Plan to of Proposed Rule Change by The rules/sro.shtml); or NASDAQ Stock Market LLC Regarding establish a limit-up/limit-down • Send an e-mail to rule- mechanism for individual securities? 15 Simplification of the Exchange’s $1 • [email protected]. Please include File Strike Price Program To what extent could the Number SR–ISE–2011–61 on the subject concurrent triggering of single stock line. September 28, 2011. circuit breakers in many S&P 500 Index stocks lead to difficulties in calculating Paper Comments Pursuant to Section 19(b)(1) of the • Securities Exchange Act of 1934 (the the index? Would the triggering of many Send paper comments in triplicate 1 2 single stock circuit breakers in a general ‘‘Act’’) and Rule 19b–4 thereunder, to Elizabeth M. Murphy, Secretary, notice is hereby given that, on market downturn cause the index Securities and Exchange Commission, September 27, 2011, The NASDAQ calculation to become stale and thereby 100 F Street, NE., Washington, DC Stock Market LLC (‘‘NASDAQ’’) filed delay the triggering of the market-wide 20549–1090. circuit breaker? with the Securities and Exchange All submissions should refer to File Commission (‘‘SEC’’ or ‘‘Commission’’) • Should the market-wide circuit Number SR–ISE–2011–61. This file breaker be triggered if a sufficient the proposed rule change as described number should be included on the in Items I and II below, which Items number of single-stock circuit breakers subject line if e-mail is used. To help the or price limits are triggered, and have been prepared by the Exchange. Commission process and review your The Commission is publishing this materially affect calculations of the S&P comments more efficiently, please use 500 Index? notice to solicit comments on the only one method. The Commission will proposed rule change from interested • Should market centers implement post all comments on the Commission’s persons. rules that mandate cancellation of Internet Web site (http://www.sec.gov/ pending orders in the event a market- rules/sro.shtml). Copies of the I. Self-Regulatory Organization’s wide circuit breaker is triggered? If so, submission, all subsequent Statement of the Terms of Substance of should such a rule require cancellation amendments, all written statements the Proposed Rule Change of all orders or only certain order types with respect to the proposed rule NASDAQ is filing with the Securities (e.g., limit orders)? Should all trading change that are filed with the and Exchange Commission (‘‘SEC’’ or halts trigger such cancellation policies Commission, and all written ‘‘Commission’’) a proposal for the or should the cancellation policies communications relating to the NASDAQ Options Market (‘‘NOM’’ or apply only to a Level 3 Market Decline? proposed rule change between the • ‘‘Exchange’’) to amend Chapter IV, Should some provision be made to Commission and any person, other than Supplementary Material .02 to Section 6 end the regular trading session if a those that may be withheld from the (Series of Options Contracts Open for market decline suddenly occurs after public in accordance with the Trading) to simplify the Exchange’s $1 3:25 p.m. but does not reach the 20% provisions of 5 U.S.C. 552, will be Strike Price Program (the ‘‘$1 Strike level? available for Web site viewing and Program’’ or ‘‘Program’’). printing in the Commission’s Public The Exchange requests that the 14 See Securities Exchange Act Release No. 64735 Reference Room, 100 F Street, NE., Commission waive the 30-day operative (June 23, 2011), 76 FR 38243 (June 29, 2011) (SR– Washington, DC 20549, on official BATS–2011–016; SR–BYX–2011–011; SR–BX– delay period contained in Exchange Act 2011–025; SR–CBOE–2011–049; SR–CHX–2011–09; business days between the hours of 10 Rule 19b–4(f)(6)(iii).3 SR–EDGA–2011–15; SR–EDGX–2011–14; SR– a.m. and 3 p.m. Copies of such filing The text of the proposed rule change FINRA–2011–023; SR–ISE–2011–028; SR– also will be available for inspection and is available from NASDAQ’s Web site at NASDAQ–2011–067; SR–NYSE–2011–21; SR– copying at the principal office of the NYSEAmex–2011–32; SR–NYSEArca–2011–26; SR– http://nasdaq.cchwallstreet.com/ NSX–2011–06; SR–Phlx–2011–64) (approving the Exchange. All comments received will Filings/, at NASDAQ’s principal office, ‘‘Phase III Pilot Program’’). The Phase III Pilot be posted without change; the on the Commission’s Web site at http:// Program has been extended through January 2012. Commission does not edit personal See, e.g., Securities Exchange Act Release 65094 identifying information from (August 10, 2011), 76 FR 50779 (August 16, 2011) 16 17 CFR 200.30–3(a)(12). (SR–NASDAQ–2011–011). submissions. You should submit only 1 15 U.S.C.78s(b)(1). 15 See Securities Exchange Act Release No. 64547 information that you wish to make 2 17 CFR 240.19b–4. (May 25, 2011), 76 FR 31647 (June 1, 2011). publicly available. All submissions 3 17 CFR 240.19b–4(f)(6)(iii).

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www.sec.gov, and at the Commission’s the upper limit of the permissible strike • For the purpose of adding strikes Public Reference Room. price range from $20 to $50. In addition, under the Program, the ‘‘price of the the number of class selections per II. Self-Regulatory Organization’s underlying stock’’ shall be measured in exchange was increased from five (5) to Statement of the Purpose of, and the same way as ‘‘the price of the Statutory Basis for, the Proposed Rule ten (10). Since the Program was made underlying security’’ set forth in Change permanent, the number of class Chapter IV, Section 6, subparagraph selections per exchange has been .06(a) of Supplementary Material to In its filing with the Commission, increased from ten (10) classes to 55 Section 6.13 NASDAQ included statements classes.7 The number of class selections • Prohibit the listing of additional concerning the purpose of and basis for per exchange has been last expanded to the proposed rule change and discussed 150 classes in 2010.8 series in $1 strike price intervals if the any comments it received on the underlying stock closes at or above $50 proposed rule change. The text of these Amendments To Simplify Non-LEAPS in its primary market and provide that statements may be examined at the Rule Text additional series in $1 strike price places specified in Item IV below. The development and expansion of intervals may not be added until the NASDAQ has prepared summaries, set the Program has resulted in very lengthy underlying stock closes again below forth in sections A, B, and C below, of rule text that is complicated and could $50.14 the most significant aspects of such be difficult to understand. The statements. Amendments To Simplify LEAPS Rule Exchange believes that the proposed Text A. Self-Regulatory Organization’s changes to simplify the rule text of the Statement of the Purpose of, and Program will benefit market participants The 2010 expansion of the Program Statutory Basis for, the Proposed Rule since the Program will be easier to permitted for some limited listing of Change understand and will maintain the LEAPS in $1 strike price intervals for expansions that were made to the classes that participate in the Program. 1. Purpose Program in 2010. Through the current The Exchange is proposing to maintain The purpose of this proposed rule proposal, the Exchange also hopes to the expansion as to LEAPS, but simplify change is to modify Chapter IV, make administration of the Program the language and provide examples of Supplementary Material .02 to Section 6 easier (e.g., system programming the simplified rule text. These changes to simplify the Exchange’s $1 Strike efforts). To simply the rules of the are set forth in proposed Chapter IV, Program. Program and, as a proactive attempt to Section 6, subparagraph .02(b)(v) of In 2008, the Commission issued an mitigate any unintentional listing of Supplementary Material to Section 6. order permitting the Exchange to improper strikes, the Exchange is establish the Program on a pilot basis.4 proposing the following streamlining For stocks in the Program, the At that time, the underlying stock had amendments: Exchange may list one $1 strike price interval between each standard $5 strike to close at $20 on the previous trading • When the price of the underlying day in order to qualify for the Program. stock is equal to or less than $20, permit interval, with the $1 strike price interval The range of available $1 strike price $1 strike price intervals with an exercise being $2 above the standard strike for intervals was limited to a range between price up to 100% above and 100% each interval above the price of the $3 and $20 and no strike price was below the price of the underlying underlying stock, and $2 below the permitted that was greater than $5 from stock.9 standard strike for each interval below the underlying stock’s closing price on Æ However, the above restriction the price of the underlying stock (‘‘$2 the previous trading day. Series in $1 would not prohibit the listing of at least wings’’). For example, if the price of the strike price intervals were not permitted five (5) strike prices above and below underlying stock is $24.50, the within $0.50 of an existing strike. In the price of the underlying stock per Exchange may list the following addition, the Exchange was limited to expiration month in an option class.10 standard strikes in $5 intervals: $15, selecting five (5) classes and reciprocal Æ For example, if the price of the $20, $25, $30 and $35. Between these listing was permitted. Furthermore, underlying stock is $2, the Exchange standard $5 strikes, the Exchange may LEAPS 5 in $1 strike price intervals were would be permitted to list the following not permitted for classes selected to 13 series: $1, $2, $3, $4, $5, $6 and $7.11 See proposed Chapter IV, Section 6, participate in the Program. • subparagraph .02(b)(iii) of Supplementary Material In 2008, the Program was expanded When the price of the underlying to Section 6. Chapter IV, Section 6, subparagraph and the Commission granted permanent stock is greater than $20, permit $1 .06(a) of Supplementary Material to Section 6 approval of the Program.6 At that time, strike price intervals with an exercise provides, in relevant part, that the price of the price up to 50% above and 50% below underlying security is measured by: (i) For intra-day the Program was expanded to increase add-on series and next-day series additions, the the price of the underlying security up daily high and low of all prices reported by all 12 4 See Securities Exchange Act Release No. 57478 to $50. national securities exchanges; (ii) for new (March 12, 2008), 73 FR 14521 (March 18, 2008) expiration months, the daily high and low of all prices reported by all national securities exchanges (SR–NASDAQ–2007–004 and SR–NASDAQ–2007– 7 See Securities Exchange Act Release No. 59588 on the day the Exchange determines to list a new 080) (order approving). (March 17, 2009), 74 FR 12410 (March 24, 2009) 5 series; and (iii) for option series to be added as a Long-Term Equity Anticipation Securities (SR–NASDAQ–2009–025). (LEAPS) are long term options that generally expire result of pre-market trading, the most recent share 8 See Securities Exchange Act Release No. 62451 from twelve to thirty-nine months from the time price reported by all national securities exchanges (July 6, 2010), 75 FR 40001 (July 13, 2010) (SR– they are listed. Chapter IV, Section 8. Long-term between 8:45 a.m. and 9:30 a.m. Eastern Time. NASDAQ–2010–083). index options are considered separately in Chapter 14 The Exchange believes that other markets that 9 XIV, Section 11. For purposes of the Program, long- See proposed Chapter IV, Section 6, have $1 strike programs will submit similar term options (LEAPS) are considered to be option subparagraph .02(b)(i) of Supplementary Material to proposals to the Commission, and therefore series having greater than nine months until Section 6. proposes the $50 dollar prohibition in this filing for expiration. Chapter IV, Supplementary Material .02 10 Id. purposes of uniformity. The Exchange intends, to Section 6. 11 Id. however, to subsequently propose an amendment to 6 See Securities Exchange Act Release No. 58093 12 See proposed Chapter IV, Section 6, the $50 prohibition so that it would not impede (July 3, 2008), 73 FR 39756 (July 10, 2008) (SR– subparagraph .02(b)(ii) of Supplementary Material addition series in $1 strike price intervals in certain NASDAQ–2008–057). to Section 6. circumstances (e.g. stock gapping).

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list the following $2 wings: $18, $27 and investors and the public interest. In it appears to the Commission that such $32.15 particular, the proposed rule change action is necessary or appropriate in the In addition, the Exchange may list the seeks to reduce investor confusion and public interest, for the protection of $1 strike price interval which is $2 to simplify the provisions of the $1 investors, or otherwise in furtherance of above the standard strike just below the Strike Program. the purposes of the Act. If the underlying price at the time of listing. Commission takes such action, the In the above example, since the B. Self-Regulatory Organization’s Commission shall institute proceedings standard strike just below the Statement on Burden on Competition to determine whether the proposed rule underlying price ($24.50) is $20, the NASDAQ does not believe that the should be approved or disapproved. Exchange may list a $22 strike. The proposed rule change will result in any IV. Solicitation of Comments Exchange may add additional long-term burden on competition that is not options series strikes as the price of the necessary or appropriate in furtherance Interested persons are invited to underlying stock moves, consistent with of the purposes of the Act. submit written data, views, and the OLPP. arguments concerning the foregoing, C. Self-Regulatory Organization’s including whether the proposed rule Non-Substantive Amendments to Rule Statement on Comments on the change is consistent with the Act. Text Proposed Rule Change Received From Comments may be submitted by any of The 2010 expansion of the Program Members, Participants, or Others the following methods: prohibited the listing of $2.50 strike Written comments were neither Electronic Comments price intervals for classes that solicited nor received. • participate in the Program. This Use the Commission’s Internet prohibition applies to non-LEAP and III. Date of Effectiveness of the comment form (http://www.sec.gov/ Proposed Rule Change and Timing for rules/sro.shtml); or LEAPS. The Exchange proposes to • maintain this prohibition and codify it Commission Action Send an e-mail to rule- in proposed Chapter IV, Section 6, Because the foregoing proposed rule [email protected]. Please include File subparagraph .02(a) of Supplementary change does not significantly affect the Number SR–Nasdaq-2011–133 on the Material to Section 6. protection of investors or the public subject line. For ease of reference, the Exchange is interest, does not impose any significant Paper Comments proposing to add the headings ‘‘$1 burden on competition, and, by its • Send paper comments in triplicate Strike Price Interval Program,’’ ‘‘Initial terms, does not become operative for 30 to Elizabeth M. Murphy, Secretary, and Additional Series,’’ and ‘‘LEAPS’’ to days from the date on which it was Securities and Exchange Commission, Chapter IV, Section 6, Supplementary filed, or such shorter time as the 100 F Street, NE., Washington, DC Material to Section 6. And finally, the Commission may designate, it has 20549–1090. Exchange is making non-substantive, become effective pursuant to Section technical changes to the proposed rule 19(b)(3)(A) of the Act 18 and Rule 19b– All submissions should refer to File such as replacing the word ‘‘security’’ 4(f)(6) thereunder.19 Number SR–Nasdaq-2011–133. This file with the word ‘‘stock.’’ The Exchange has requested that the number should be included on the The Exchange also proposes to call Commission waive the 30-day operative subject line if e-mail is used. To help the the Program the $1 Strike Program in delay. The Commission believes that Commission process and review your Supplementary Material .02 to Section 6 waiver of the operative delay is comments more efficiently, please use for purposes of consistency. consistent with the protection of only one method. The Commission will The Exchange represents that it has investors and the public interest post all comments on the Commission’s the necessary systems capacity to because the proposal is substantially Internet Web site (http://www.sec.gov/ support the increase in new options similar to that of another exchange that rules/sro.shtml). Copies of the series that will result from the proposed has been approved by the submission, all subsequent streamlining changes to the Program. Commission.20 Therefore, the amendments, all written statements with respect to the proposed rule 2. Statutory Basis Commission designates the proposal operative upon filing.21 change that are filed with the The Exchange believes that its At any time within 60 days of the Commission, and all written proposal is consistent with Section 6(b) filing of the proposed rule change, the communications relating to the 16 of the Act in general, and furthers the Commission summarily may proposed rule change between the 17 objectives of Section 6(b)(5) of the Act temporarily suspend such rule change if Commission and any person, other than in particular, in that it is designed to those that may be withheld from the promote just and equitable principles of 18 15 U.S.C. 78s(b)(3)(A). public in accordance with the trade, to remove impediments to and 19 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– provisions of 5 U.S.C. 552, will be perfect the mechanism of a free and 4(f)(6)(iii) requires the Exchange to give the available for Web site viewing and open market and a national market Commission written notice of the Exchange’s intent printing in the Commission’s Public to file the proposed rule change, along with a brief system, and, in general to protect description and text of the proposed rule change, Reference Room, 100 F Street, NE., at least five business days prior to the date of filing Washington, DC 20549, on official 15 The Exchange notes that a $2 wing is not of the proposed rule change, or such shorter time business days between the hours of 10 permitted between the standard $20 and $25 strikes as designated by the Commission. The Commission a.m. and 3 p.m. Copies of such filing in the above example. This is because the $2 wings has waived the five-day prefiling requirement in are added based on reference to the price of the this case. also will be available for inspection and underlying and as being between the standard 20 See Securities Exchange Act Release No. 65383 copying at the principal office of the strikes above and below the price of the underlying (September 22, 2011) (SR–CBOE–2011–040) (order Exchange. All comments received will stock. Since the price of the underlying stock approving proposed rule change to simplify the $1 be posted without change; the ($24.50) straddles the standard strikes of $20 and Strike Price Interval Program). Commission does not edit personal $25, no $2 wing is permitted between these 21 For purposes only of waiving the 30-day standard strikes. operative delay, the Commission has considered the identifying information from 16 15 U.S.C. 78f(b). proposed rule’s impact on efficiency, competition, submissions. You should submit only 17 15 U.S.C. 78f(b)(5). and capital formation. See 15 U.S.C. 78c(f). information that you wish to make

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publicly available. All submissions self-regulatory organization has the S&P 500® Index (‘‘S&P 500’’), should refer to File Number SR–Nasdaq- prepared summaries, set forth in revising the 10%, 20% and 30% decline 2011–133 and should be submitted on Sections A, B and C below, of the most percentages, reducing the length of or before October 25, 2011. significant aspects of such statements. trading halts, and allowing halts to be 7 For the Commission, by the Division of triggered up to 3:30 p.m. A. Self-Regulatory Organization’s The exchanges and FINRA have taken Trading and Markets, pursuant to delegated Statement of the Purpose of, and authority.22 into consideration the Committee’s Statutory Basis for, the Proposed Rule recommendations, and with some Elizabeth M. Murphy, Change Secretary. modifications, have proposed changes to market-wide circuit breakers. The [FR Doc. 2011–25505 Filed 10–3–11; 8:45 am] 1. Purpose Exchange believes these proposed BILLING CODE 8011–01–P The Exchange proposes to amend changes will provide for a more Exchange Rule 11.14 to revise the meaningful measure, in today’s faster, current methodology for determining more electronic markets, of when to halt SECURITIES AND EXCHANGE when trading in all stocks will be halted COMMISSION stocks on a market-wide basis as a result due to extraordinary market volatility. of rapid market declines. [Release No. 34–65440; File No. SR–EDGX– The Exchange is proposing this rule 2011–30] change in consultation with other Background equity, options and futures markets, the EDGX Rule 11.14 provides for market- Self-Regulatory Organizations; EDGX Financial Industry Regulatory wide halts in trading at specified levels Exchange, Inc.; Notice of Filing of Authority, Inc. (‘‘FINRA’’) and staffs of in order to promote stability and Proposed Rule Change To Amend the Commission and the Commodity investor confidence during a period of EDGX Rule 11.14 Futures Trading Commission. significant stress. As the Commission Since May 6, 2010, when the markets September 28, 2011. noted in its approval order for the experienced excessive volatility in an Pursuant to Section 19(b)(1) of the analogous rule from the New York Stock abbreviated time period, i.e., the ‘‘flash 8 Securities Exchange Act of 1934 Exchange (‘‘NYSE’’), the rule was crash,’’ the exchanges and FINRA have (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 intended to enable market participants implemented market-wide measures notice is hereby given that on to establish equilibrium between buying designed to restore investor confidence September 27, 2011, EDGX Exchange, and selling interest and to ensure that by reducing the potential for excessive Inc. (the ‘‘Exchange’’ or ‘‘EDGX’’) filed market participants have an opportunity market volatility. Among the measures with the Securities and Exchange to become aware of and respond to adopted include pilot plans for stock- Commission (‘‘Commission’’) the significant price movements. by-stock trading pauses 3 proposed rule change as described in and related Importantly, the market-wide circuit Items I and II, below, which Items have changes to the clearly erroneous breakers were not intended to prevent execution rules 4 and more stringent markets from adjusting to new price been prepared by the Exchange. The 5 Commission is publishing this notice to market maker quoting requirements. In levels; rather, they provide for a speed solicit comments on the proposed rule addition, on April 5, 2011, the equities bump for extremely rapid market declines.9 change from interested persons. exchanges and FINRA filed a plan pursuant to Rule 608 of Regulation NMS In its current form,10 the rule provides I. Self-Regulatory Organization’s to address extraordinary market for Level 1, 2 and 3 declines and Statement of the Terms of Substance of volatility (the ‘‘Limit Up-Limit Down specified trading halts following such the Proposed Rule Change Plan’’).6 As proposed, the Limit Up- declines (each a ‘‘Level 1, 2 or 3 Halt,’’ The Exchange proposes to amend Limit Down Plan is designed to prevent respectively). The values of Levels 1, 2 Exchange Rule 11.14 to revise the trades in individual NMS stocks from and 3 are calculated at the beginning of current methodology for determining occurring outside specified price bands. each calendar quarter by the primary when trading in all stocks will be halted The Joint CFTC–SEC Advisory listing market, using 10%, 20% and due to extraordinary market volatility. Committee on Emerging Regulatory Issues (‘‘Committee’’) has recommended 7 See Summary Report of the Committee, The text of the proposed rule change is ‘‘Recommendations Regarding Regulatory available on the Exchange’s Web site at that, in addition to the initiatives Responses to the Market Events of May 6, 2010’’ http://www.directedge.com, at the already adopted or proposed, the (Feb, 18, 2011). The Exchange notes that NYSE Exchange’s principal office and at the markets should consider reforming the Euronext submitted a comment letter to the existing market-wide circuit breakers. Committee that recommended, among other things, Commission’s Public Reference Room. reform of the market-wide circuit breaker rules. See Among other things, the Committee Letter to Elizabeth Murphy, Secretary, Commission, II. Self-Regulatory Organization’s noted that the interrelatedness of from Janet M. Kissane, SVP and Corporate Statement of the Purpose of, and today’s highly electronic markets Secretary, NYSE Euronext (July 19, 2010). The Statutory Basis for, the Proposed Rule warrants the need to review the present proposed reforms set forth in this rule proposal Change differ slightly from the changes recommended in operation of the system-wide circuit that comment letter, and represent consensus In its filing with the Commission, the breakers now in place. Specifically, the among the markets of how to address reform of the Exchange included statements Committee recommended that the market-wide circuit breakers. concerning the purpose of, and basis for, markets consider replacing the Dow 8 See NYSE Rule 80B. the proposed rule change and discussed Jones Industrial Average (‘‘DJIA’’) with 9 See Securities Exchange Act Release No. 26198 (Oct. 19, 1988). any comments it received on the 10 NYSE Rule 80B was last amended in 1998, 3 proposed rule change. The text of these EDGX Rule 11.14. when declines based on specified point drops in the statements may be examined at the 4 EDGX Rule 11.13. DJIA were replaced with the current methodology places specified in Item IV below. The 5 See SR–EDGX–2011–28 (August 30, 2011) of using a percentage decline that is recalculated (mirroring the market making standards in other quarterly. See Securities Exchange Act Release No. exchange rules, such as NYSE Rule 104(a)(1)(B), 39846 (April 9, 1998), 63 FR 18477 (April 15, 1998) 22 17 CFR 200.30–3(a)(12). Nasdaq Rule 4613(a), and BATS Rule 11.8(d)(2)). (SR–NYSE–98–06, SR–Amex-98–09, SR–BSE–98– 1 15 U.S.C. 78s(b)(1). 6 See Securities Exchange Act Release No. 64547 06, SR–CHX–98–08, SR–NASD–98–27, and SR– 2 17 CFR 240.19b–4. (May 25, 2011), 76 FR 31647 (June 1, 2011). Phlx-98–15).

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30%, respectively, of the average closing rule to reflect today’s high-speed, highly was halted, following the re-opening of value of the DJIA for the month prior to electronic trading market while still trading, trading would not halt again the beginning of the quarter. Each meeting the original purpose of the rule: unless a Level 2 Market Decline was to percentage calculation is rounded to the to ensure that market participants have occur. Likewise, following the re- nearest fifty points to create the levels’ an opportunity to become aware of and opening of trading after a Level 2 Market trigger points. The primary listing respond to significant price movements. Decline, trading would not be halted markets disseminate the new trigger First, the Exchange proposes to again unless a Level 3 Market Decline levels quarterly to the media, via replace the DJIA with the S&P 500. The was to occur, at which point, trading in information memos and publication on Exchange believes that because the S&P all stocks would be halted until the their Web sites. The values then remain 500 is based on the trading prices of 500 primary listing market opens the next in effect until the next quarterly stocks, as compared to the 30 stocks that trading day. calculation, notwithstanding whether comprise the DJIA, the S&P 500 Fourth, to correspond with the lower the DJIA has moved and a Level 1, 2 or represents a broader base of securities percentages associated with triggering a 3 decline is no longer equal to an actual against which to measure whether trading halt, the Exchange also proposes 10%, 20% or 30% decline in the most extraordinary market-wide volatility is to shorten the length of the market-wide recent closing value of the DJIA. occurring. In addition, as noted by the trading halts associated with each level. Once a Rule 11.14 circuit breaker is in Committee, using an index that As proposed, a Level 1 or 2 Market effect, trading in all stocks halts for the correlates closely with derivative Decline occurring after 9:30 a.m. Eastern time periods specified below: products, such as the E–Mini and SPDR Time (‘‘ET’’) 13 and up to and including Level 1 Halt S&P 500 Exchange-Traded Fund 3:25 p.m. E.T., would result in a trading Anytime before 2 p.m.—one hour; (‘‘SPY’’), will allow for a better cross- halt in all stocks for 15 minutes. The Exchange believes that by At or after 2 p.m. but before 2:30 market measure of market volatility. reducing the percentage threshold, p.m.—30 minutes; Second, the Exchange proposes to coupled with the reduced length of a At or after 2:30 p.m.—trading shall change the recalculation of the trigger trading halt, the proposed rule would continue, unless there is a Level 2 values from once every calendar quarter allow for trading halts for serious Halt. to daily. The Exchange believes that market declines, while at the same time, Level 2 Halt updating the trigger values daily will would minimize disruption to the Anytime before 1 p.m.—two hours; better reflect current market conditions. market by allowing for trading to At or after 1 p.m. but before 2 p.m.— In particular, a daily recalculation will continue after the proposed more- one hour; ensure that the percentage drop triggers abbreviated trading halt. The Exchange At or after 2 p.m.—trading shall halt relate to current market conditions, and believes that in today’s markets, where and not resume for the rest of the are not compared to what may be stale trading information travels in micro- day. market conditions. As noted in the second speeds, a 15-minute trading halt Level 3 Halt proposed rule, the daily calculations of strikes the appropriate balance between At any time—trading shall halt and the trigger values will be published the need to halt trading for market not resume for the rest of the day. before the trading day begins.11 Third, the Exchange proposes to participants to assess the market, while Unless stocks are halted for the at the same time reducing the time that remainder of the trading day, price decrease the current Level 1, 2 and 3 declines of 10%, 20% and 30% to a the market is halted. indications are disseminated by the Finally, because the proposed Level 1 Level 1 Market Decline of 7%, a Level primary listing market during a Rule and Level 2 trading halts will now be 15 2 Market Decline of 13% and Level 3 11.14 trading halt for stocks that minutes, the Exchange proposes Market Decline of 20%. In particular, as comprise the DJIA. amending the rule to allow for a Level demonstrated by the May 6, 2010, flash 1 or 2 Market Decline to trigger a trading Proposed Amendments crash, the current Level 1 10% decline halt up to 3:25 p.m. Under the current may be too high a threshold for As noted above, the Exchange, other rule, a trading halt cannot be triggered determining whether to halt trading equities, options, and futures markets, after 2:30 p.m., and this time across all securities. In fact, since and FINRA propose to amend the corresponds to the need for the markets adoption, the markets have halted only market-wide circuit breakers to take into both to re-open following a 30-minute once, on October 27, 1997.12 consideration the recommendations of halt and to engage in a fair and orderly Accordingly, to reflect the potential that the Committee, and to provide for more closing process. However, as the a lower, yet still significant decline may meaningful measures in today’s markets markets experienced on May 6, 2010, warrant a market-wide trading halt, the of when to halt trading in all stocks. even if the Level 1 decline had occurred Exchange proposes to lower the market Accordingly, the Exchange proposes to that day, because the market decline decline percentage thresholds. amend Rule 11.14 as follows: (i) Replace occurred after 2:30 p.m., it would not As further proposed, trading on the the DJIA with the S&P 500; (ii) replace have triggered a halt under the current Exchange will be halted based on a the quarterly calendar recalculation of rule. The Committee recommended that Level 1 or Level 2 Market Decline only Rule 11.14 triggers with daily trading halts be triggered up to 3:30 p.m. once per day. For example, if a Level 1 recalculations; (iii) replace the 10%, The Exchange agrees that the proposed Market Decline was to occur and trading 20% and 30% market decline amendments must strike the appropriate percentages with 7%, 13% and 20% balance between permitting trading market decline percentages (each a 11 The primary listing markets will advise via Trader Update the specific methodology for halts as late in the day as feasible ‘‘Level 1, 2 or 3 Market Decline,’’ publishing the daily calculations, as well as the without interrupting the closing respectively); (iv) modify the length of manner by which the markets will halt trading in process. the trading halts associated with each all stocks should a Rule 11.14 trading halt be Accordingly, to accommodate existing market decline level; and (v) modify the triggered. 12 At that time, the triggers were based on primary listing market rules concerning times when a trading halt may be absolute declines in the DJIA (350 point decrease triggered. The Exchange believes that for a Level 1 halt and 550 point decrease for a Level 13 The Exchange notes that all times listed these proposed amendments update the 2 halt). throughout this filing are in Eastern Time.

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closing procedures, including the mechanism of a free and open market approved, the proposed NMS Plan to publication of imbalance information and a national market system and, in establish a limit-up/limit-down beginning at 3:45 p.m. and the general, to protect investors and the mechanism for individual securities? 18 restrictions on entry and cancellation of public interest. Specifically, this rule • To what extent could the market on close (‘‘MOC’’) and limit on proposal supports the objectives of concurrent triggering of single stock close (‘‘LOC’’) orders after 3:45 p.m.,14 perfecting the mechanism of a free and circuit breakers in many S&P 500 Index the Exchange proposes that the last open market and the national market stocks lead to difficulties in calculating Level 1 or Level 2 Market Decline system because it promotes uniformity the index? Would the triggering of many trading halt should be 3:25 p.m. The across markets concerning when and single stock circuit breakers in a general Exchange proposes 3:25 p.m. as the cut- how to halt trading in all stocks as a market downturn cause the index off time so that there is time following result of extraordinary market volatility. calculation to become stale and thereby the 15-minute trading halt for the delay the triggering of the market-wide B. Self-Regulatory Organization’s markets to re-open before the 3:45 p.m. circuit breaker? Statement on Burden on Competition cut-off for entry and cancellation of • Should the market-wide circuit MOC and LOC orders under primary The proposed rule change does not breaker be triggered if a sufficient listing market rules.15 impose any burden on competition that number of single-stock circuit breakers As with current Level 3 declines, is not necessary or appropriate in or price limits are triggered, and under the proposed rule, a Level 3 furtherance of the purposes of the Act. materially affect calculations of the S&P Market Decline would halt trading for 500 Index? C. Self-Regulatory Organization’s • the remainder of the trading day, Statement on Comments on the Should market centers implement including any trading that may take Proposed Rule Change Received From rules that mandate cancellation of place after 4:00 p.m. and would not Members, Participants, or Others pending orders in the event a market- resume until the next trading day. wide circuit breaker is triggered? If so, In addition to these proposed The Exchange has not solicited, and should such a rule require cancellation changes, the Exchange proposes to add does not intend to solicit, comments on of all orders or only certain order types to Rule 11.14 how the markets will re- this proposed rule change. The (e.g., limit orders)? Should all trading open following a 15-minute trading halt. Exchange has not received any halts trigger such cancellation policies In particular, similar to the re-opening unsolicited written comments from or should the cancellation policies procedures set forth in Rule 11.14, the members or other interested parties. apply only to a Level 3 Market Decline? • Exchange proposes that if the primary III. Date of Effectiveness of the Should some provision be made to listing market halts trading in all stocks, Proposed Rule Change and Timing for end the regular trading session if a all markets will halt trading in those Commission Action market decline suddenly occurs after stocks until the primary listing market 3:25 p.m. but does not reach the 20% has resumed trading or notice has been Within 45 days of the date of level? provided by the primary listing market publication of this notice in the Federal • In the event of a Level 3 Market that trading may resume. As further Register or within such longer period (i) Decline, should some provision be made proposed, if the primary listing market as the Commission may designate up to for the markets to hold a closing does not re-open a security within 15 90 days of such date if it finds such auction? minutes following the end of the trading longer period to be appropriate and • Should the primary market have a halt, other markets may resume trading publishes its reasons for so finding or longer period (e.g., 30 minutes) to in that security. (ii) as to which the self-regulatory reopen trading following a Level 2 As a result of the proposed changes organization consents, the Commission Market Decline before trading resumes described above, the Exchange proposes will: in other venues? to delete Interpretations and Policies (A) By order approve or disapprove • In the event of a Level 3 Market .01–.04 to Rule 11.14, move such proposed rule change, or Decline, should the markets wait for the (B) Institute proceedings to determine Interpretations and Policies .03 and .04 primary market to reopen trading in a whether the proposed rule change into the rule text of Rule 11.14 as particular security on the next trading should be disapproved. sections (c)(1) and (f), respectively, and day before trading in that security re-number existing Interpretation and IV. Solicitation of Comments resumes? Policy .05 to Rule 11.14 as Interested persons are invited to Comments may be submitted by any Interpretation and Policy .01 to Rule submit written data, views, and of the following methods: 11.14. In addition, a conforming arguments concerning the foregoing, Electronic Comments amendment is proposed to be made in including whether the proposed • Rule 11.13(c)(1) to re-number the cross- Use the Commission’s Internet changes to the market-wide circuit comment form (http://www.sec.gov/ reference to Interpretation .05 of Rule breaker regime are consistent with the 11.14 as Interpretation .01 of Rule 11.14. rules/sro.shtml); or Act. The Commission specifically • Send an e-mail to rule- 2. Statutory Basis requests comment on the following: [email protected]. Please include File • As discussed above, the proposed The basis under the Act for these rule change would narrow the SR–EDGA–2011–15; SR–EDGX–2011–14; SR– proposed rule changes are the percentage market declines that would requirement under Section 6(b)(5) 16 FINRA–2011–023; SR–ISE–2011–028; SR– trigger a market-wide halt in trading. NASDAQ–2011–067; SR–NYSE–2011–21; SR– that an Exchange have rules that are How would the proposed changes NYSEAmex–2011–32; SR–NYSEArca–2011–26; SR– designed to promote just and equitable interact with the existing single-stock NSX–2011–06; SR–Phlx–2011–64) (approving the principles of trade, to remove ‘‘Phase III Pilot Program’’). The Phase III Pilot circuit breaker pilot program 17 or, if impediments to and perfect the Program has been extended through January 2012. See, e.g., Securities Exchange Act Release 65094 17 See Securities Exchange Act Release No. 64735 (August 10, 2011), 76 FR 50779 (August 16, 2011) 14 See, e.g., NYSE Rule 123C. (June 23, 2011), 76 FR 38243 (June 29, 2011) (SR– (SR–NASDAQ–2011–011). 15 Id. BATS–2011–016; SR–BYX–2011–011; SR–BX– 18 See Securities Exchange Act Release No. 64547 16 15 U.S.C. 78f(b)(5). 2011–025; SR–CBOE–2011–049; SR–CHX–2011–09; (May 25, 2011), 76 FR 31647 (June 1, 2011).

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Number SR–EDGX–2011–30 on the SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s subject line. COMMISSION Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Paper Comments [Release No. 34–65438; File No. SR–CBOE– Change • Send paper comments in triplicate 2011–087] 1. Purpose to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, Self-Regulatory Organizations; The Exchange proposes to amend its 100 F Street, NE., Washington, DC Chicago Board Options Exchange, rules to revise the current methodology 20549–1090. Incorporated; Notice of Proposed Rule for determining when to halt trading in Change Related to Market-Wide Circuit all stocks and stock options due to All submissions should refer to File Breakers extraordinary market volatility. The Number SR–EDGX–2011–30. This file Exchange is proposing this rule change number should be included on the September 28, 2011. in consultation with other equity, subject line if e-mail is used. To help the Pursuant to Section 19(b)(1) of the options, and futures markets, the Commission process and review your Securities Exchange Act of 1934 Financial Industry Regulatory comments more efficiently, please use (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 Authority, Inc. (‘‘FINRA’’), and staffs of only one method. The Commission will notice is hereby given that on the Commission and the Commodity post all comments on the Commission’s September 27, 2011, the Chicago Board Futures Trading Commission (‘‘CFTC’’). Internet Web site (http://www.sec.gov/ Options Exchange, Incorporated Since May 6, 2010, when the markets rules/sro.shtml). Copies of the (‘‘Exchange’’ or ‘‘CBOE’’) filed with the experienced excessive volatility in an submission, all subsequent Securities and Exchange Commission abbreviated time period, i.e., the ‘‘flash amendments, all written statements (‘‘Commission’’) the proposed rule crash,’’ the exchanges and FINRA have with respect to the proposed rule change as described in Items I and II, implemented market-wide measures change that are filed with the below, which Items have been prepared designed to restore investor confidence Commission, and all written by the Exchange. The Commission is by reducing the potential for excessive communications relating to the publishing this notice to solicit market volatility. Among the measures proposed rule change between the comments on the proposed rule change adopted include pilot plans for stock- Commission and any person, other than from interested persons. by-stock trading pauses 3 and related those that may be withheld from the changes to the stock market clearly public in accordance with the I. Self-Regulatory Organization’s erroneous execution rules 4 and more provisions of 5 U.S.C. 552, will be Statement of the Terms of Substance of stringent stock market maker quoting available for Web site viewing and the Proposed Rule Change requirements.5 In addition, on April 5, printing in the Commission’s Public The Exchange proposes to amend 2011, the equities exchanges and FINRA Reference Room, 100 F Street, NE., filed a plan pursuant to Rule 608 of Exchange Rule 6.3B to revise the current Washington, DC 20549, on official Regulation NMS to address methodology for determining when to business days between the hours of extraordinary market volatility (the halt trading in all stock options trading 10 a.m. and 3 p.m. Copies of such filing ‘‘Limit Up-Limit Down Plan’’).6 As on CBOE and in all stocks trading on the also will be available for inspection and proposed, the Limit Up-Limit Down CBOE Stock Exchange, LLC (‘‘CBSX,’’ copying at the principal office of the Plan is designed to prevent trades in the CBOE’s stock trading facility), due to Exchange. All comments received will individual NMS stocks from occurring extraordinary market volatility. The text be posted without change; the outside specified price bands. of the rule proposal is available on the Commission does not edit personal Exchange’s Web site (http:// The Joint CFTC–SEC Advisory identifying information from www.cboe.org/legal), at the Exchange’s Committee on Emerging Regulatory submissions. You should submit only Issues (‘‘Committee’’) has recommended Office of the Secretary, and at the information that you wish to make that, in addition to the initiatives Commission’s Public Reference Room. publicly available. All submissions already adopted or proposed, the should refer to File Number SR–EDGX– II. Self-Regulatory Organization’s markets should consider reforming the 2011–30 and should be submitted on or Statement of the Purpose of, and existing market-wide circuit breakers. before October 25, 2011. Statutory Basis for, the Proposed Rule Among other things, the Committee noted that the interrelatedness of For the Commission, by the Division of Change today’s highly electronic markets Trading and Markets, pursuant to delegated In its filing with the Commission, the authority.19 warrants the need to review the present self-regulatory organization included operation of the system-wide circuit Elizabeth M. Murphy, statements concerning the purpose of breakers now in place. Specifically, the Secretary. and basis for the proposed rule change Committee recommended that the [FR Doc. 2011–25529 Filed 10–3–11; 8:45 am] and discussed any comments it received markets consider replacing the Dow BILLING CODE 8011–01–P on the proposed rule change. The text Jones Industrial Average (‘‘DJIA’’) with of those statements may be examined at the S&P 500® Index (‘‘S&P 500’’), the places specified in Item IV below. revising the 10%, 20%, and 30% The Exchange has prepared summaries, decline percentages, reducing the length set forth in sections A, B, and C below, of trading halts, and allowing halts to be of the most significant parts of such statements. 3 Exchange Rule 6.3C. 4 Exchange Rule 52.4. 5 Exchange Rules 53.23.01 and 53.56.01. 1 15 U.S.C. 78s(b)(1). 6 See Securities Exchange Act Release No. 64547 19 17 CFR 200.30–3(a)(12). 2 17 CFR 240.19b–4. (May 25, 2011), 76 FR 31647 (June 1, 2011).

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triggered up to 2:30 p.m. (all times specified trading halts following such decline percentages with 7%, 13%, and herein are Central).7 declines. The values of Levels 1, 2 and 20% market decline percentages; (iv) The exchanges and FINRA have taken 3 are calculated at the beginning of each modify the length of the trading halts into consideration the Committee’s calendar quarter, using 10%, 20% and associated with each market decline recommendations, and with some 30%, respectively, of the average closing level; and (v) modify the times when a modifications, have proposed changes value of the DJIA for the month prior to trading halt may be triggered. The to market-wide circuit breakers that the the beginning of the quarter. Each Exchange believes that these proposed Exchange believes will provide for a percentage calculation is rounded to the amendments update the rule to reflect more meaningful measure in today’s nearest fifty points to create the Levels’ today’s high-speed, highly electronic faster, more electronic markets, of when trigger points. The NYSE distributes trading market while still meeting the to halt stocks and stock options on a new trigger levels quarterly to the media original purpose of the market-wide market-wide basis as a result of rapid and via an NYSE Information Memo, circuit breaker rules: to ensure that market declines. and the new trigger levels are also market participants have an opportunity available on the NYSE Web site.12 The to become aware of and respond to Background values then remain in effect until the significant price movements. The Exchange adopted is its rule on next quarterly calculation, First, the Exchange proposes to market-wide trading halts in October notwithstanding whether the DJIA has replace the DJIA with the S&P 500. The 1988 as part of an effort by the securities moved and a Level 1, 2, or 3 decline is Exchange believes that because the S&P and futures markets to implement a no longer equal to an actual 10%, 20%, 500 is based on the trading prices of 500 coordinated means to address or 30% decline in the most recent stocks, as compared to the 30 stocks that potentially destabilizing market closing value of the DJIA. comprise the DJIA, the S&P 500 volatility.8 The rule, currently reflected Once a market-wide circuit breaker is represents a broader base of stocks in Exchange Rule 6.3B, provides for in effect, trading in all securities on the against which to measure whether market-wide halts in trading at specified Exchange, including stock options on extraordinary market-wide volatility is levels in order to promote stability and CBOE and stocks on CBSX, halt for the occurring. In addition, as noted by the investor confidence during a period of time periods specified below: Committee, using an index that significant stress.9 As the Commission Level 1 Halt correlates closely with derivative noted in the 1987 approval order, the Anytime before 2 p.m.—one hour; products, such as the E–Mini and SPY, rule was intended to enable market At or after 2 p.m. but before 2:30 will allow for a better cross-market participants to establish an equilibrium p.m.—30 minutes; measure of market volatility. between buying and selling interest and At or after 2:30 p.m.—trading shall Second, the Exchange proposes to to ensure that market participants have continue, unless there is a Level 2 change the recalculation of the trigger an opportunity to become aware of and Halt. values from once every calendar quarter respond to significant price movements. Level 2 Halt to daily. The Exchange believes that Importantly, the market-wide circuit Anytime before 1 p.m.—two hours; updating the trigger values daily will breakers were not intended to prevent At or after 1 p.m. but before 2 p.m.— better reflect current market conditions. markets from adjusting to new price one hour; In particular, a daily recalculation will levels; rather, they provide for a speed At or after 2 p.m.—trading shall halt ensure that the percentage drop triggers bump for extremely rapid market and not resume for the rest of the relate to current market conditions, and declines.10 day. are not compared to what may be stale In its current form,11 the rule provides Level 3 Halt market conditions. As noted in the for Level 1, 2, and 3 declines and At any time—trading shall halt and proposed rule, the daily calculations of not resume for the rest of the day. the trigger values will be published 7 See Summary Report of the Committee, 13 Proposed Amendments before the trading day begins. ‘‘Recommendations Regarding Regulatory Third, the Exchange proposes to Responses to the Market Events of May 6, 2010’’ As noted above, the Exchange, other (Feb, 18, 2011). The Exchange notes that CBOE decrease the current Level 1, 2, and 3 submitted a comment letter to the Committee that equities, options, and futures markets, declines of 10%, 20%, and 30% to a recommended, among other things, reform of the and FINRA propose to amend the Level 1 Market Decline of 7%, a Level market-wide circuit breaker rules. See Letter to market-wide circuit breakers to take into 2 Market Decline of 13%, and Level 3 Mary Schapiro, Chairman, Commission, and Gary consideration the recommendations of Gensler, Chairman, CFTC, from Edward J. Joyce, Market Decline of 20%. In particular, as President and Chief Operating Officer, CBOE the Committee, and to provide for more demonstrated by the May 6, 2010 flash (August 3, 2010). The proposed reforms set forth in meaningful measures in today’s markets crash, the current Level 1 10% decline this rule proposal differ slightly from the changes of when to halt trading in all stocks and may be too high a threshold before recommended in that comment letter, and represent stock options. Accordingly, the consensus among the markets of how to address determining whether to halt trading reform of the market-wide circuit breakers. Exchange proposes to amend Rule 6.3B across all securities. In fact, since 8 See Securities Exchange Act Release No. 26198 as follows: (i) Replace the DJIA with the adoption, the markets have halted only (Oct. 19, 1988). S&P 500; (ii) replace the quarterly once, on October 27, 1997.14 9 Exchange Rule 6.3B does not currently contain calendar recalculation of Rule 6.3B Accordingly, to reflect the potential that any reference to the specific levels of decline in the triggers with daily recalculations: (iii) DJIA that would trigger a market-wide trading halt. a lower, yet still significant decline may Instead, the rule was amended in 1997 to provide replace the 10%, 20%, and 30% market that a market-wide halt will be triggered on the 13 The Exchange and other markets will advise via Exchange whenever a market-wide halt is in effect were replaced with the current methodology of Circular (or Trader Alert or similar notice) the on the New York Stock Exchange (‘‘NYSE’’). See using a percentage decline that is recalculated specific methodology for publishing the daily Securities Exchange Act Release No. 38221 (January quarterly. See Securities Exchange Act Release No. calculations, as well as the manner by which the 31, 1997), 62 FR 5871 (February 7, 1997)(SR– 39846 (April 9, 1998), 63 FR 18477 (April 15, 1998) markets will halt trading in all stocks and stock CBOE–96–78). (SR–NYSE–98–06, SR–Amex–98–09, SR–BSE–98– options should a Rule 6.3B trading halt be triggered. 10 See note 8, supra. 06, SR–CHX–98–08, SR–NASD–98–27, and SR– 14 At that time, the triggers were based on 11 The methodology for calculating market-wide Phlx–98–15). absolute declines in the DJIA (350 point decrease trading halts was last amended in 1998, when 12 See, e.g., NYSE Regulation Information Memos for a Level 1 halt and 550 point decrease for a Level declines based on specified point drops in the DJIA 11–19 (June 30, 2011) and 11–10 (March 31, 2011). 2 halt).

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warrant a market-wide trading halt, the amendments must strike the appropriate within 15 minutes following the end of Exchange proposes to lower the market balance between permitting trading the trading halt, other markets may decline percentage thresholds. halts as late in the day as feasible resume trading in the options on that As further proposed, the Exchange without interrupting the closing stock if at least one market has resumed would halt trading based on a Level 1 process. traded [sic] in the stock. For all other or Level 2 Market Decline only once per Accordingly, to accommodate certain stock options, e.g., stock index options, day. For example, if a Level 1 Market existing exchange rules concerning the Exchange proposes that if a circuit Decline were to occur and trading were closing procedures, including, for breaker is initiated in all stocks, all halted, following the reopening of example, the publication of imbalance markets shall halt trading in such other trading, the Exchange would not halt information beginning at 2:45 p.m. and stock options and may resume trading the market again unless a Level 2 the restrictions on entry and in such options anytime after the 15- Market Decline were to occur. Likewise, cancellation of market on close minute halt period.17 following the reopening of trading after (‘‘MOC’’) and limit on close (‘‘LOC’’) 2. Statutory Basis a Level 2 Market Decline, the Exchange orders after 2:45 p.m.,15 the Exchange would not halt trading again unless a proposes that the last Level 1 or Level The basis under the Act for these Level 3 Market Decline were to occur, 2 Market Decline trading halt should be proposed rule changes are [sic] the at which point, trading in all stocks and 2:25 p.m. (or, in the case of an early requirement under Section 6(b)(5) 18 stock options would be halted until the scheduled close, 11:25 a.m.). The that an Exchange have rules that are next trading day. Exchange proposes 2:25 p.m. as the cut- designed to promote just and equitable Fourth, to correspond with the lower off time so that there is time following principles of trade, to remove percentages associated with triggering a the 15-minute trading halt for the impediments to and perfect the trading halt, the Exchange also proposes markets to reopen before the 2:45 cut-off mechanism of a free and open market to shorten the length of the market-wide for entry and cancellation of MOC and and a national market system and, in trading halts associated with each Level. LOC orders under exchange rules. general, to protect investors and the As proposed, a Level 1 or 2 Market As with current Level 3 declines, public interest. Specifically, this rule Decline occurring after 8:30 a.m. and up under the proposed rule, a Level 3 proposal supports the objectives of to and including 2:25 p.m. or, in the Market Decline would halt trading for perfecting the mechanism of a free and case of an early scheduled close, 11:25 the remainder of the trading day, open market and the national market a.m., would result in a trading halt in all including any trading that may take system because it promotes uniformity stocks and stock options for 15 minutes. place after 3 p.m., and would not across markets concerning when and The Exchange believes that by resume until the next trading day. how to halt trading in all stocks and reducing the percentage threshold, In addition to these proposed stock options as a result of extraordinary coupled with the reduced length of a changes, the Exchange proposes to add market volatility. trading halt, the proposed rule would to Rule 6.3B how the markets will B. Self-Regulatory Organization’s allow for trading halts for serious reopen following a 15-minute trading Statement on Burden on Competition market declines, while at the same time, halt.16 For stocks, similar to the would minimize disruption to the reopening procedures set forth in Rule CBOE does not believe that the market by allowing for trading to 6.3C, the Exchange proposes that if a proposed rule change will impose any continue after the proposed more- circuit breaker is initiated in all stocks, burden on competition not necessary or abbreviated trading halt. The Exchange all markets will halt trading in those appropriate in furtherance of the believes that in today’s markets, where stocks until the primary listing market purposes of the Act. trading information travels in micro- has resumed trading in the stock or second speed, a 15-minute trading halt C. Self-Regulatory Organization’s notice has been provided by the primary Statement on Comments on the strikes the appropriate balance between listing market that trading may resume. the need to halt trading for market Proposed Rule Change Received From As further proposed, if the primary Members, Participants, or Others participants to assess the market, while listing market does not reopen a stock at the same time reducing the time that within 15 minutes following the end of The Exchange neither solicited nor the market is halted. the trading halt, other markets may received comments on the proposal. Finally, because the proposed Level 1 resume trading in that stock. For options and Level 2 trading halts will now be 15 III. Date of Effectiveness of the overlying stocks, similar to the minutes, the Exchange proposes Proposed Rule Change and Timing for reopening procedures set forth in Rule amending the rule to allow for a Level Commission Action 6.3.06, the Exchange proposes that if a 1 or 2 Market Decline to trigger a trading Within 45 days of the date of circuit breaker is initiated in all stocks, halt up to 2:25 p.m. (or, in the case of publication of this notice in the Federal all markets will halt trading in the an early scheduled close, 11:25 a.m.) Register or within such longer period (i) options on those stocks until the Under the current rule, a trading halt primary listing market has resumed cannot be triggered after 1:30 p.m., and 17 The Exchange understands that other markets trading in the stock or notice has been this time corresponds to the need for the are submitting similar rule changes and revising provided by the primary listing market procedures to address market-wide circuit breakers markets both to reopen following a 30- that trading may resume. If the primary and reopenings for stocks, options and futures. The minute halt and to engage in a fair and listing market does not reopen a stock Exchange believes it is integral that the markets orderly closing process. However, as the have consistent procedures for market-wide circuit markets experienced on May 6, 2010, breakers and reopenings (e.g., our intention is to 15 See, e.g., NYSE Rule 123C. have [sic] same ability to reopen trading in stock even if the Level 1 decline had occurred 16 Upon reopening, a rotation shall be held in index options when futures markets reopen). As a that day, because the market decline each class of options and stock in accordance with result, to the extent it may be necessary, the occurred after 1:30 p.m., it would not the Exchange’s opening procedures, see, e.g., Rules Exchange reserves the right to modify its proposed have triggered a halt under the current 6.3B and 51.3, unless the Exchange concludes that rule change in order to conform its procedures a different method of reopening is appropriate based on a review of the rule change filings and rule. The Committee recommended that under the circumstances, including but not limited procedures of the other equities, options and trading halts be triggered up to 2:30 p.m. to, no rotation, an abbreviated rotation or any other futures markets. The Exchange agrees that the proposed variation in the manner of the rotation. 18 15 U.S.C. 78f(b)(5).

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As the Commission may designate up to halts trigger such cancellation policies copying at the principal office of CBOE. 90 days of such date if it finds such or should the cancellation policies All comments received will be posted longer period to be appropriate and apply only to a Level 3 Market Decline? without change; the Commission does publishes its reasons for so finding or • Should some provision be made to not edit personal identifying (ii) as to which the self-regulatory end the regular trading session if a information from submissions. You organization consents, the Commission market decline suddenly occurs after should submit only information that will: 3:25 p.m. but does not reach the 20% you wish to make publicly available. All (A) By order approve or disapprove level? submissions should refer to File such proposed rule change, or • In the event of a Level 3 Market Number SR–CBOE–2011–087 and (B) Institute proceedings to determine Decline, should some provision be made should be submitted on or before whether the proposed rule change for the markets to hold a closing October 25, 2011. should be disapproved. auction? For the Commission, by the Division of • Should the primary market have a IV. Solicitation of Comments Trading and Markets, pursuant to delegated longer period (e.g., 30 minutes) to authority.21 Interested persons are invited to reopen trading following a Level 2 Elizabeth M. Murphy, submit written data, views, and Market Decline before trading resumes Secretary. arguments concerning the foregoing, in other venues? including whether the proposed • In the event of a Level 3 Market [FR Doc. 2011–25528 Filed 10–3–11; 8:45 am] changes to the market-wide circuit Decline, should the markets wait for the BILLING CODE 8011–01–P breaker regime are consistent with the primary market to reopen trading in a Act. The Commission specifically particular security on the next trading SECURITIES AND EXCHANGE requests comment on the following: day before trading in that security • COMMISSION As discussed above, the proposed resumes? rule change would narrow the Comments may be submitted by any [Release No. 34–65436; File No. SR–NSX– percentage market declines that would of the following methods: 2011–11] trigger a market-wide halt in trading. How would the proposed changes Electronic Comments Self-Regulatory Organizations; interact with the existing single-stock • Use the Commission’s Internet National Stock Exchange, Inc.; Notice circuit breaker pilot program 19 or, if comment form (http://www.sec.gov/ of Filing of Proposed Rule Change To approved, the proposed NMS Plan to rules/sro.shtml); or Revise the Current Methodology for establish a limit-up/limit-down • Send an e-mail to rule- Determining When To Halt Trading in mechanism for individual securities? 20 [email protected]. Please include File All Stocks Due to Extraordinary Market • To what extent could the Number SR–CBOE–2011–087 on the Volatility concurrent triggering of single stock subject line. September 28, 2011. circuit breakers in many S&P 500 Index Paper Comments Pursuant to Section 19(b)(1) of the stocks lead to difficulties in calculating • Securities Exchange Act of 1934 (the the index? Would the triggering of many Send paper comments in triplicate ‘‘Act’’) 1 and Rule 19b–4 thereunder,2 single stock circuit breakers in a general to Elizabeth M. Murphy, Secretary, notice is hereby given that on market downturn cause the index Securities and Exchange Commission, September 27, 2011, National Stock calculation to become stale and thereby 100 F Street, NE., Washington, DC Exchange, Inc. filed with the Securities delay the triggering of the market-wide 20549–1090. and Exchange Commission circuit breaker? All submissions should refer to File • Should the market-wide circuit Number SR–CBOE–2011–087. This file (‘‘Commission’’) the proposed rule breaker be triggered if a sufficient number should be included on the change, as described in Items I and II number of single-stock circuit breakers subject line if e-mail is used. To help the below, which Items have been prepared or price limits are triggered, and Commission process and review your by the Exchange. The Commission is materially affect calculations of the S&P comments more efficiently, please use publishing this notice to solicit 500 Index? only one method. The Commission will comment on the proposed rule change • Should market centers implement post all comments on the Commission’s from interested persons. rules that mandate cancellation of Internet Web site (http://www.sec.gov/ I. Self-Regulatory Organization’s pending orders in the event a market- rules/sro.shtml). Copies of the Statement of the Terms of Substance of wide circuit breaker is triggered? If so, submission, all subsequent the Proposed Rule Change should such a rule require cancellation amendments, all written statements National Stock Exchange, Inc. of all orders or only certain order types with respect to the proposed rule (‘‘NSX®’’ or ‘‘Exchange’’) proposes to (e.g., limit orders)? Should all trading change that are filed with the amend its Rule 11.20A to revise the Commission, and all written current methodology for determining 19 See Securities Exchange Act Release No. 64735 communications relating to the when to halt trading in all stocks due to (June 23, 2011), 76 FR 38243 (June 29, 2011) (SR– proposed rule change between the BATS–2011–016; SR–BYX–2011–011; SR–BX– extraordinary market volatility. 2011–025; SR–CBOE–2011–049; SR–CHX–2011–09; Commission and any person, other than SR–EDGA–2011–15; SR–EDGX–2011–14; SR– those that may be withheld from the II. Self-Regulatory Organization’s FINRA–2011–023; SR–ISE–2011–028; SR– public in accordance with the Statement of the Purpose of, and NASDAQ–2011–067; SR–NYSE–2011–21; SR– provisions of 5 U.S.C. 552, will be Statutory Basis for, the Proposed Rule NYSEAmex–2011–32; SR–NYSEArca–2011–26; SR– NSX–2011–06; SR–Phlx–2011–64) (approving the available for Web site viewing and Change ‘‘Phase III Pilot Program’’). The Phase III Pilot printing in the Commission’s Public In its filing with the Commission, the Program has been extended through January 2012. Reference Room, 100 F Street, NE., Exchange included statements See, e.g., Securities Exchange Act Release 65094 Washington, DC 20549, on official (August 10, 2011), 76 FR 50779 (August 16, 2011) (SR–NASDAQ–2011–011). business days between the hours of 10 21 17 CFR 200.30–3(a)(12). 20 See Securities Exchange Act Release No. 64547 a.m. and 3 p.m. Copies of such filing 1 15 U.S.C. 78s(b)(1). (May 25, 2011), 76 FR 31647 (June 1, 2011). also will be available for inspection and 2 17 CFR 240.19b–4.

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concerning the purpose of and basis for breakers now in place. Specifically, the Euronext’s Web site.7 The values then the proposed rule change and discussed Committee recommended that the remain in effect until the next quarterly any comments it received on the markets consider replacing the Dow calculation, notwithstanding whether proposed rule change. The text of these Jones Industrial Average (‘‘DJIA’’) with the DJIA has moved and a Level 1, 2, or statements may be examined at the the S&P 500® Index (‘‘S&P 500’’), 3 decline is no longer equal to an actual places specified in Item IV below. The revising the 10%, 20%, and 30% 10%, 20%, or 30% decline in the most Exchange has prepared summaries, set decline percentages, reducing the length recent closing value of the DJIA. forth in sections A, B, and C below, of of trading halts, and allowing halts to be Once a Rule 11.20A circuit breaker is the most significant parts of such triggered up to 3:30 p.m. Eastern Time.6 in effect, trading in all stocks halt for the statements. The Exchange, along with other time periods specified below: markets and FINRA, has taken into A. Self-Regulatory Organization’s Level 1 Halt Statement of the Purpose of, and consideration the Committee’s Anytime before 2 p.m.8—one hour; at Statutory Basis for, the Proposed Rule recommendations, and with some or after 2 p.m. but before 2:30 p.m.—30 Change modifications, has proposed changes to market-wide circuit breakers that the minutes; at or after 2:30 p.m.—trading 1. Purpose Exchange believes will provide for a shall continue, unless there is a Level 2 The Exchange proposes to amend more meaningful measure in today’s Halt. Exchange Rule 11.20A to revise the faster, more electronic markets, of when Level 2 Halt current methodology for determining to halt stocks on a market-wide basis as when to halt trading in all stocks due to a result of rapid market declines. Anytime before 1 p.m.—two hours; at or after 1 p.m. but before 2 p.m.—one extraordinary market volatility. The Background Exchange is proposing this rule change hour; at or after 2 p.m.—trading shall in consultation with other equity, NSX Rule 11.20A provides for market- halt and not resume for the rest of the options, and futures markets, the wide halts in trading at specified levels day. Financial Industry Regulatory in order to promote stability and Level 3 Halt Authority, Inc. (‘‘FINRA’’), and staffs of investor confidence during a period of the Securities and Exchange significant stress. As the Commission At any time—trading shall halt and Commission (‘‘SEC’’ or the noted in its approval order, Rule 11.20 not resume for the rest of the day. ‘‘Commission’’) and the Commodity was intended to enable market Unless stocks are halted for the Futures Trading Commission (‘‘CFTC’’). participants to establish an equilibrium remainder of the trading day, price Since May 6, 2010, when the markets between buying and selling interest and indications are disseminated during a experienced excessive volatility in an to ensure that market participants have Rule 11.20A trading halt for stocks that abbreviated time period, i.e., the ‘‘flash an opportunity to become aware of and comprise the DJIA. crash,’’ the exchanges and FINRA have respond to significant price movements. Proposed Amendments implemented market-wide measures Importantly, the market-wide circuit designed to restore investor confidence breakers were not intended to prevent As noted above, the Exchange, other by reducing the potential for excessive markets from adjusting to new price equities, options, and futures markets, market volatility. Among the measures levels; rather, they provide for a speed and FINRA propose to amend the adopted include pilot plans for stock- bump for extremely rapid market market-wide circuit breakers to take into by-stock trading pauses 3 and related declines. consideration the recommendations of changes to the clearly erroneous In its current form, the rule provides the Committee, and to provide for more execution rules 4 and more stringent for Level 1, 2, and 3 declines and meaningful measures in today’s markets market maker quoting requirements. In specified trading halts following such of when to halt trading in all stocks. addition, on April 5, 2011, the equities declines. The values of Levels 1, 2 and Accordingly, the Exchange proposes to exchanges and FINRA filed a plan 3 are calculated at the beginning of each amend Rule 11.20A as follows: (i) pursuant to Rule 608 of Regulation NMS calendar quarter, using 10%, 20% and Replace the DJIA with the S&P 500; (ii) to address extraordinary market 30%, respectively, of the average closing replace the quarterly calendar volatility (the ‘‘Limit Up-Limit Down value of the DJIA for the month prior to recalculation of Rule 11.20A triggers Plan’’).5 As proposed, the Limit Up- the beginning of the quarter. Each with daily recalculations; (iii) replace Limit Down Plan is designed to prevent percentage calculation is rounded to the the 10%, 20%, and 30% market decline trades in individual NMS stocks from nearest fifty points to create the Levels’ percentages with 7%, 13%, and 20% occurring outside specified price bands. trigger points. The new trigger levels are market decline percentages; (iv) modify The Joint CFTC–SEC Advisory disseminated quarterly to the media and the length of the trading halts associated Committee on Emerging Regulatory via an NYSE Euronext Information with each market decline level; and (v) Issues (‘‘Committee’’) has recommended Memo and are available on the NYSE modify the times when a trading halt that, in addition to the initiatives may be triggered. The Exchange believes already adopted or proposed, the 6 See Summary Report of the Committee, that these proposed amendments update markets should consider reforming the ‘‘Recommendations Regarding Regulatory the rule to reflect today’s high-speed, existing market-wide circuit breakers. Responses to the Market Events of May 6, 2010’’ highly electronic trading market while Among other things, the Committee (Feb, 18, 2011). The Exchange notes that NYSE still meeting the original purpose of Euronext submitted a comment letter to the noted that the interrelatedness of Committee that recommended, among other things, Rule 11.20A: to ensure that market today’s highly electronic markets reform of the market-wide circuit breaker rules. See participants have an opportunity to warrants the need to review the present Letter to Elizabeth Murphy, Secretary, Commission, become aware of and respond to operation of the system-wide circuit from Janet M. Kissane, SVP and Corporate significant price movements. Secretary, NYSE Euronext (July 19, 2010). The proposed reforms set forth in this rule proposal 3 NSX Rule 11.20. differ slightly from the changes recommended in 7 See, e.g., NYSE Regulation Information Memos 4 NSX Rule 11.19. that comment letter, and represent consensus 11–19 (June 30, 2011) and 11–10 (March 31, 2011). 5 See Securities Exchange Act Release No. 64547 among the markets of how to address reform of the 8 Please note all referenced times herein are (May 25, 2011), 76 FR 31647 (June 1, 2011). market-wide circuit breakers. Eastern Time.

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First, the Exchange proposes to Level 3 Market Decline were to occur, the markets to reopen before the 3:45 replace the DJIA with the S&P 500. The at which point, trading in all stocks cut-off (and a 12:45 p.m. cut-off time for Exchange believes that because the S&P would be halted until the primary an early scheduled close) for certain 500 is based on the trading prices of 500 market opens the next trading day. stocks under Exchange rules. Fourth, to correspond with the lower stocks, as compared to the 30 stocks that As with current Level 3 declines, percentages associated with triggering a comprise the DJIA, the S&P 500 under the proposed rule, a Level 3 trading halt, the Exchange also proposes represents a broader base of securities Market Decline would halt trading for against which to measure whether to shorten the length of the market-wide trading halts associated with each Level. the remainder of the trading day, extraordinary market-wide volatility is including any trading that may take occurring. In addition, as noted by the As proposed, a Level 1 or 2 Market Decline occurring after 9:30 a.m. and up place after 4:00 p.m., and would not Committee, using an index that resume until the next trading day. correlates closely with derivative to and including 3:25 p.m., would result products, such as the E-Mini and SPY, in a trading halt in all stocks for 15 In addition to these proposed will allow for a better cross-market minutes. changes, the Exchange proposes to add measure of market volatility. The Exchange believes that by to Rule 11.20A how the markets will Second, the Exchange proposes to reducing the percentage threshold, reopen following a 15-minute trading change the recalculation of the trigger coupled with the reduced length of a halt. In particular, similar to the values from once every calendar quarter trading halt, the proposed rule would reopening procedures set forth in Rule to daily. The Exchange believes that allow for trading halts for serious 11.20B(b), the Exchange proposes that if updating the trigger values daily will market declines, while at the same time, the primary market halts trading in all better reflect current market conditions. would minimize disruption to the stocks, all markets will halt trading in In particular, a daily recalculation will market by allowing for trading to those stocks until the primary market ensure that the percentage drop triggers continue after the proposed more- has resumed trading or notice has been relate to current market conditions, and abbreviated trading halt. The Exchange provided by the primary market that are not compared to what may be stale believes that in today’s markets, where trading may resume. As further market conditions. As noted in the trading information travels in micro- proposed, if the primary market does proposed rule, the daily calculations of second speed, a 15-minute trading halt not re-open a security within 15 the trigger values will be published strikes the appropriate balance between minutes following the end of the trading before the trading day begins.9 the need to halt trading for market halt, other markets may resume trading Third, the Exchange proposes to participants to assess the market, while in that security. decrease the current Level 1, 2, and 3 at the same time reducing the time that the market is halted. 2. Statutory Basis declines of 10%, 20%, and 30% to a Finally, because the proposed Level 1 Level 1 Market Decline of 7%, a Level and Level 2 trading halts will now be 15 The basis under the Act for these 2 Market Decline of 13%, and Level 3 minutes, the Exchange proposes proposed rule changes are the Market Decline of 20%. In particular, as amending the rule to allow for a Level requirement under Section 6(b)(5) 11 demonstrated by the May 6, 2010 flash 1 or 2 Market Decline to trigger a trading that an Exchange have rules that are crash, the current Level 1 10% decline halt up to 3:25 p.m. (or in the case of designed to promote just and equitable may be too high a threshold before an early scheduled close, 12:25 p.m.). principles of trade, to remove determining whether to halt trading Under the current rule, a trading halt impediments to and perfect the across all securities. In fact, since cannot be triggered after 2:30 p.m., and mechanism of a free and open market adoption, the markets have halted only this time corresponds to the need for the and a national market system and, in 10 once, on October 27, 1997. markets both to reopen following a 30- general, to protect investors and the Accordingly, to reflect the potential that minute halt and to engage in a fair and public interest. Specifically, this rule a lower, yet still significant decline may orderly closing process. However, as the proposal supports the objectives of warrant a market-wide trading halt, the markets experienced on May 6, 2010, perfecting the mechanism of a free and Exchange proposes to lower the market even if the Level 1 decline had occurred open market and the national market decline percentage thresholds. that day, because the market decline system because it promotes uniformity As further proposed, the Exchange occurred after 2:30 p.m., it would not across markets concerning when and would halt trading based on a Level 1 have triggered a halt under the current how to halt trading in all stocks as a or Level 2 Market Decline only once per rule. The Committee recommended that result of extraordinary market volatility. day. For example, if a Level 1 Market trading halts be triggered up to 3:30 p.m. Decline were to occur and trading were The Exchange agrees that the proposed B. Self-Regulatory Organization’s halted, following the reopening of amendments must strike the appropriate Statement on Burden on Competition trading, the Exchange would not halt balance between permitting trading the market again unless a Level 2 The Exchange does not believe that halts as late in the day as feasible the proposed rule change will impose Market Decline were to occur. Likewise, without interrupting the closing any inappropriate burden on following the reopening of trading after process. competition. a Level 2 Market Decline, the Exchange Accordingly, to accommodate existing would not halt trading again unless a Exchange rules concerning closing C. Self-Regulatory Organization’s procedures, the Exchange proposes that Statement on Comments on the 9 The listing exchanges, has advised the Exchange the last Level 1 or Level 2 Market and other markets that they will issue a circular Proposed Rule Change Received From regarding the specific methodology for publishing Decline trading halt should be 3:25 p.m. Members, Participants, or Others the daily calculations, as well as the manner by (or in the case of an early scheduled which all markets will halt trading in all stocks close, 12:25 p.m.). The Exchange The Exchange has neither solicited should a Rule 11.20A trading halt be triggered. proposes 3:25 p.m. (or in the case of an nor received written comments on the 10 At that time, the triggers were based on proposed rule change. absolute declines in the DJIA (350 point decrease early scheduled close, 12:25 p.m.) as the for a Level 1 halt and 550 point decrease for a Level cut-off time so that there is time 2 halt). following the 15-minute trading halt for 11 15 U.S.C. 78f(b)(5).

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III. Date of Effectiveness of the • Should market centers implement available for Web site viewing and Proposed Rule Change and Timing for rules that mandate cancellation of printing in the Commission’s Public Commission Action pending orders in the event a market- Reference Room, 100 F Street, NE., Within 45 days of the date of wide circuit breaker is triggered? If so, Washington, DC 20549, on official publication of this notice in the Federal should such a rule require cancellation business days between the hours of 10 Register or within such longer period (i) of all orders or only certain order types a.m. and 3 p.m. Copies of such filing As the Commission may designate up to (e.g., limit orders)? Should all trading also will be available for inspection and 90 days of such date if it finds such halts trigger such cancellation policies copying at the principal office of NSX. All comments received will be posted longer period to be appropriate and or should the cancellation policies without change; the Commission does publishes its reasons for so finding or apply only to a Level 3 Market Decline? • Should some provision be made to not edit personal identifying (ii) as to which the self-regulatory end the regular trading session if a information from submissions. You organization consents, the Commission market decline suddenly occurs after should submit only information that will: 3:25 p.m. but does not reach the 20% you wish to make publicly available. All (A) by order approve or disapprove level? submissions should refer to File the proposed rule change, or • In the event of a Level 3 Market Number SR–NSX–2011–11 and should (B) institute proceedings to determine Decline, should some provision be made be submitted on or before October 25, whether the proposed rule change for the markets to hold a closing 2011. should be disapproved. auction? • For the Commission, by the Division of IV. Solicitation of Comments Should the primary market have a Trading and Markets, pursuant to delegated longer period (e.g., 30 minutes) to 14 Interested persons are invited to authority. reopen trading following a Level 2 submit written data, views, and Elizabeth M. Murphy, Market Decline before trading resumes arguments concerning the foregoing, Secretary. in other venues? [FR Doc. 2011–25527 Filed 10–3–11; 8:45 am] including whether the proposed • In the event of a Level 3 Market changes to the market-wide circuit Decline, should the markets wait for the BILLING CODE 8011–01–P breaker regime are consistent with the primary market to reopen trading in a Act. The Commission specifically particular security on the next trading requests comment on the following: SECURITIES AND EXCHANGE • day before trading in that security COMMISSION As discussed above, the proposed resumes? rule change would narrow the Comments may be submitted by any [Release No. 34–65433; File No. SR–C2– percentage market declines that would of the following methods: 2011–024] trigger a market-wide halt in trading. How would the proposed changes Electronic Comments Self-Regulatory Organizations; C2 interact with the existing single-stock • Use the Commission’s Internet Options Exchange, Incorporated; circuit breaker pilot program 12 or, if comment form (http://www.sec.gov/ Notice of Proposed Rule Change approved, the proposed NMS Plan to rules/sro.shtml); or Related to Market-Wide Circuit establish a limit-up/limit-down • Send an e-mail to rule- Breakers mechanism for individual securities? 13 [email protected]. Please include File September 28, 2011. • To what extent could the Number SR–NSX–2011–11 on the Pursuant to Section 19(b)(1) of the concurrent triggering of single stock subject line. Securities Exchange Act of 1934 circuit breakers in many S&P 500 Index (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 stocks lead to difficulties in calculating Paper Comments notice is hereby given that on the index? Would the triggering of many • Send paper comments in triplicate September 27, 2011, the C2 Options single stock circuit breakers in a general to Elizabeth M. Murphy, Secretary, Exchange, Incorporated (‘‘Exchange’’ or market downturn cause the index Securities and Exchange Commission, ‘‘C2’’) filed with the Securities and calculation to become stale and thereby 100 F Street, NE., Washington, DC Exchange Commission (‘‘Commission’’) delay the triggering of the market-wide 20549–1090. the proposed rule change as described circuit breaker? All submissions should refer to File in Items I and II, below, which Items • Should the market-wide circuit Number SR–NSX–2011–11. This file have been prepared by the Exchange. breaker be triggered if a sufficient number should be included on the The Commission is publishing this number of single-stock circuit breakers subject line if e-mail is used. To help the notice to solicit comments on the or price limits are triggered, and Commission process and review your proposed rule change from interested materially affect calculations of the S&P comments more efficiently, please use persons. 500 Index? only one method. The Commission will post all comments on the Commission’s I. Self-Regulatory Organization’s 12 See Securities Exchange Act Release No. 64735 Internet Web site (http://www.sec.gov/ Statement of the Terms of Substance of (June 23, 2011), 76 FR 38243 (June 29, 2011) (SR– rules/sro.shtml). Copies of the the Proposed Rule Change BATS–2011–016; SR–BYX–2011–011; SR–BX– 2011–025; SR–CBOE–2011–049; SR–CHX–2011–09; submission, all subsequent The Exchange proposes to amend SR–EDGA–2011–15; SR–EDGX–2011–14; SR– amendments, all written statements Exchange Rule 6.32.03 to revise the FINRA–2011–023; SR–ISE–2011–028; SR– with respect to the proposed rule current methodology for determining NASDAQ–2011–067; SR–NYSE–2011–21; SR– change that are filed with the NYSEAmex–2011–32; SR–NYSEArca–2011–26; SR– when to halt trading in all stock options NSX–2011–06; SR–Phlx–2011–64) (approving the Commission, and all written on C2 due to extraordinary market ‘‘Phase III Pilot Program’’). The Phase III Pilot communications relating to the volatility. The text of the rule proposal Program has been extended through January 2012. proposed rule change between the is available on the Exchange’s Web site See, e.g., Securities Exchange Act Release 65094 Commission and any person, other than (August 10, 2011), 76 FR 50779 (August 16, 2011) (SR–NASDAQ–2011–011). those that may be withheld from the 14 17 CFR 200.30–3(a)(12). 13 See Securities Exchange Act Release No. 64547 public in accordance with the 1 15 U.S.C. 78s(b)(1). (May 25, 2011), 76 FR 31647 (June 1, 2011). provisions of 5 U.S.C. 552, will be 2 17 CFR 240.19b–4.

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(http://www.c2exchange.com/Legal/ individual NMS stocks from occurring noted in the 1987 approval order, the RuleFilings.aspx), at the Exchange’s outside specified price bands. market-wide circuit breaker rules were Office of the Secretary and at the The Joint CFTC–SEC Advisory intended to enable market participants Commission. Committee on Emerging Regulatory to establish an equilibrium between Issues (‘‘Committee’’) has recommended buying and selling interest and to II. Self-Regulatory Organization’s that, in addition to the initiatives ensure that market participants have an Statement of the Purpose of, and already adopted or proposed, the opportunity to become aware of and Statutory Basis for, the Proposed Rule markets should consider reforming the respond to significant price movements. Change existing market-wide circuit breakers. Importantly, the market-wide circuit Among other things, the Committee In its filing with the Commission, the breakers were not intended to prevent noted that the interrelatedness of markets from adjusting to new price self-regulatory organization included today’s highly electronic markets levels; rather, they provide for a speed statements concerning the purpose of warrants the need to review the present bump for extremely rapid market and basis for the proposed rule change operation of the system-wide circuit declines.10 and discussed any comments it received breakers now in place. Specifically, the In its current form,11 the rule provides on the proposed rule change. The text Committee recommended that the for Level 1, 2, and 3 declines and of those statements may be examined at markets consider replacing the Dow specified trading halts following such the places specified in Item IV below. Jones Industrial Average (‘‘DJIA’’) with declines. The values of Levels 1, 2 and The Exchange has prepared summaries, the S&P 500® Index (‘‘S&P 500’’), 3 are calculated at the beginning of each set forth in sections A, B, and C below, revising the 10%, 20%, and 30% calendar quarter, using 10%, 20% and of the most significant parts of such decline percentages, reducing the length 30%, respectively, of the average closing statements. of trading halts, and allowing halts to be value of the DJIA for the month prior to A. Self-Regulatory Organization’s triggered up to 2:30 p.m. (all times the beginning of the quarter. Each Statement of the Purpose of, and herein are Chicago Time).7 percentage calculation is rounded to the Statutory Basis for, the Proposed Rule The exchanges and FINRA have taken nearest fifty points to create the Levels’ Change into consideration the Committee’s trigger points. The NYSE distributes recommendations, and with some new trigger levels quarterly to the media 1. Purpose modifications, have proposed changes and via an NYSE Information Memo, to market-wide circuit breakers that the and the new trigger levels are also The Exchange proposes to amend its Exchange believes will provide for a available on the NYSE Web site.12 The rules to revise the current methodology more meaningful measure in today’s values then remain in effect until the for determining when to halt trading in faster, more electronic markets, of when next quarterly calculation, all stock options due to extraordinary to halt stocks and stock options on a notwithstanding whether the DJIA has market volatility. The Exchange is market-wide basis as a result of rapid moved and a Level 1, 2, or 3 decline is proposing this rule change in market declines. no longer equal to an actual 10%, 20%, consultation with other equity, options, or 30% decline in the most recent Background and futures markets, the Financial closing value of the DJIA. Industry Regulatory Authority, Inc. The markets’ rules on market-wide Once a market-wide circuit breaker is (‘‘FINRA’’), and staffs of the trading halts were adopted in October in effect, trading in all securities on the Commission and the Commodity 1988 as part of an effort by the securities Exchange, which currently includes Futures Trading Commission (‘‘CFTC’’). and futures markets to implement a only options, halts for the time periods Since May 6, 2010, when the markets coordinated means to address specified below: potentially destabilizing market experienced excessive volatility in an Level 1 Halt abbreviated time period, i.e., the ‘‘flash volatility.8 The rule, currently reflected crash,’’ the exchanges and FINRA have in Exchange Rule 6.32.03, provides for Anytime before 2 p.m.—one hour; at implemented market-wide measures market-wide halts in trading at specified or after 2 p.m. but before 2:30 p.m.—30 designed to restore investor confidence levels in order to promote stability and minutes; at or after 2:30 p.m.—trading by reducing the potential for excessive investor confidence during a period of shall continue, unless there is a Level 2 market volatility. Among the measures significant stress.9 As the Commission Halt. adopted include pilot plans for stock- Level 2 Halt 7 3 See Summary Report of the Committee, by-stock trading pauses and related ‘‘Recommendations Regarding Regulatory Anytime before 1 p.m.—two hours; at changes to the stock market clearly Responses to the Market Events of May 6, 2010’’ or after 1 p.m. but before 2 p.m.—one 4 erroneous execution rules and more (Feb, 18, 2011). The Exchange notes that CBOE, hour; at or after 2 p.m.—trading shall stringent stock market maker quoting C2’s affiliate, submitted a comment letter to the 5 Committee that recommended, among other things, requirements. In addition, on April 5, reform of the market-wide circuit breaker rules. See wide trading halt. Instead, the rule provides that a 2011, the equities exchanges and FINRA Letter to Mary Schapiro, Chairman, Commission, market-wide halt will be triggered on the Exchange filed a plan pursuant to Rule 608 of and Gary Gensler, Chairman, CFTC, from Edward whenever a market-wide halt is in effect on the New Regulation NMS to address J. Joyce, President and Chief Operating Officer, York Stock Exchange (‘‘NYSE’’). 10 extraordinary market volatility (the CBOE (August 3, 2010). The proposed reforms set See note 8, supra. forth in this rule proposal differ slightly from the 11 6 The methodology for calculating market-wide ‘‘Limit Up-Limit Down Plan’’). As changes recommended in that comment letter, and trading halts was last amended by the markets in proposed, the Limit Up-Limit Down represent consensus among the markets of how to 1998, when declines based on specified point drops Plan is designed to prevent trades in address reform of the market-wide circuit breakers. in the DJIA were replaced with the current 8 See Securities Exchange Act Release No. 26198 methodology of using a percentage decline that is (Oct. 19, 1988). Exchange Rule 6.32.03 was adopted recalculated quarterly. See Securities Exchange Act 3 See, e.g., Chicago Board Options Exchange as part of C2’s original rule set when it was Release No. 39846 (April 9, 1998), 63 FR 18477 (‘‘CBOE’’) Rule 6.3C. approved as a registered national securities (April 15, 1998) (SR–NYSE–98–06, SR–Amex-98– 4 See, e.g., CBOE Rule 52.4. exchange on December 10, 2009. 09, SR–BSE–98–06, SR–CHX–98–08, SR–NASD– 5 See, e.g., CBOE Rules 53.23.01 and 53.56.01. 9 Exchange Rule 6.32.03 does not currently 98–27, and SR–Phlx–98–15). 6 See Securities Exchange Act Release No. 64547 contain any reference to the specific levels of 12 See, e.g., NYSE Regulation Information Memos (May 25, 2011), 76 FR 31647 (June 1, 2011). decline in the DJIA that would trigger a market- 11–19 (June 30, 2011) and 11–10 (March 31, 2011).

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halt and not resume for the rest of the the trigger values will be published second speed, a 15-minute trading halt day. before the trading day begins.13 strikes the appropriate balance between Third, the Exchange proposes to the need to halt trading for market Level 3 Halt decrease the current Level 1, 2, and 3 participants to assess the market, while declines of 10%, 20%, and 30% to a At any time—trading shall halt and at the same time reducing the time that Level 1 Market Decline of 7%, a Level not resume for the rest of the day. the market is halted. 2 Market Decline of 13%, and Level 3 Finally, because the proposed Level 1 Proposed Amendments Market Decline of 20%. In particular, as and Level 2 trading halts will now be 15 demonstrated by the May 6, 2010 flash minutes, the Exchange proposes As noted above, the Exchange, other crash, the current Level 1 10% decline amending the rule to allow for a Level equities, options, and futures markets, may be too high a threshold before 1 or 2 Market Decline to trigger a trading and FINRA propose to amend the determining whether to halt trading halt up to 2:25 p.m. (or, in the case of market-wide circuit breakers to take into across all securities. In fact, since an early scheduled close, 11:25 a.m.). consideration the recommendations of adoption, the markets have halted only Under the current rule, a trading halt the Committee, and to provide for more once, on October 27, 1997.14 cannot be triggered after 1:30 p.m., and meaningful measures in today’s markets Accordingly, to reflect the potential that this time corresponds to the need for the of when to halt trading in all stocks and a lower, yet still significant decline may markets both to reopen following a 30- stock options. Accordingly, the warrant a market-wide trading halt, the minute halt and to engage in a fair and Exchange proposes to amend Rule 6.3B Exchange proposes to lower the market orderly closing process. However, as the as follows: (i) Replace the DJIA with the decline percentage thresholds. markets experienced on May 6, 2010, S&P 500; (ii) replace the quarterly As further proposed, the Exchange even if the Level 1 decline had occurred would halt trading based on a Level 1 calendar recalculation of Rule 6.3B that day, because the market decline or Level 2 Market Decline only once per triggers with daily recalculations: (iii) occurred after 1:30 p.m., it would not day. For example, if a Level 1 Market replace the 10%, 20%, and 30% market have triggered a halt under the current Decline were to occur and trading were decline percentages with 7%, 13%, and rule. The Committee recommended that halted, following the reopening of trading halts be triggered up to 2:30 p.m. 20% market decline percentages; (iv) trading, the Exchange would not halt modify the length of the trading halts The Exchange agrees that the proposed the market again unless a Level 2 amendments must strike the appropriate associated with each market decline Market Decline were to occur. Likewise, level; and (v) modify the times when a balance between permitting trading following the reopening of trading after halts as late in the day as feasible trading halt may be triggered. The a Level 2 Market Decline, the Exchange Exchange believes that these proposed without interrupting the closing would not halt trading again unless a process. amendments update the rule to reflect Level 3 Market Decline were to occur, Accordingly, to accommodate certain today’s high-speed, highly electronic at which point, trading in all stock existing exchange rules concerning trading market while still meeting the options would be halted until the next closing procedures, including, for original purpose of the market-wide trading day. example, the publication of imbalance circuit breaker rules: to ensure that Fourth, to correspond with the lower information beginning at 2:45 p.m. and market participants have an opportunity percentages associated with triggering a trading halt, the Exchange also proposes the restrictions on entry and to become aware of and respond to cancellation of market on close significant price movements. to shorten the length of the market-wide trading halts associated with each Level. (‘‘MOC’’) and limit on close (‘‘LOC’’) First, the Exchange proposes to 15 As proposed, a Level 1 or 2 Market orders after 2:45 p.m., the Exchange replace the DJIA with the S&P 500. The Decline occurring after 8:30 a.m. and up proposes that the last Level 1 or Level Exchange believes that because the S&P to and including 2:25 p.m. or, in the 2 Market Decline trading halt should be 500 is based on the trading prices of 500 case of an early scheduled close, 11:25 2:25 p.m. (or, in the case of an early stocks, as compared to the 30 stocks that a.m., would result in a trading halt in all scheduled close, 11:25 a.m.). The comprise the DJIA, the S&P 500 stocks options for 15 minutes. Exchange proposes 2:25 p.m. as the cut- represents a broader base of stocks The Exchange believes that by off time so that there is time following against which to measure whether reducing the percentage threshold, the 15-minute trading halt for the extraordinary market-wide volatility is coupled with the reduced length of a markets to reopen before the 2:45 cut-off occurring. In addition, as noted by the trading halt, the proposed rule would for entry and cancellation of MOC and Committee, using an index that allow for trading halts for serious LOC orders under exchange rules. correlates closely with derivative market declines, while at the same time, As with current Level 3 declines, products, such as the E-Mini and SPY, would minimize disruption to the under the proposed rule, a Level 3 will allow for a better cross-market market by allowing for trading to Market Decline would halt trading for measure of market volatility. continue after the proposed more- the remainder of the trading day, abbreviated trading halt. The Exchange including any trading that may take Second, the Exchange proposes to believes that in today’s markets, where place after 3:00 p.m., and would not change the recalculation of the trigger trading information travels in micro- resume until the next trading day. values from once every calendar quarter In addition to these proposed to daily. The Exchange believes that 13 The Exchange and other markets will advise via changes, the Exchange proposes to add updating the trigger values daily will Circular (or Trader Alert or similar notice) the to Rule 6.3B how the markets will better reflect current market conditions. specific methodology for publishing the daily reopen following a 15-minute trading calculations, as well as the manner by which the In particular, a daily recalculation will 16 markets will halt trading in all stocks and stock halt. For options overlying stocks, ensure that the percentage drop triggers options should a Rule 6.32B trading halt be relate to current market conditions, and triggered. 15 See, e.g., NYSE Rule 123C. are not compared to what may be stale 14 At that time, the triggers were based on 16 Upon reopening, a rotation shall be held in market conditions. As noted in the absolute declines in the DJIA (350 point decrease each class of options in accordance with Exchange for a Level 1 halt and 550 point decrease for a Level Rule 6.11, unless the Exchange concludes that a proposed rule, the daily calculations of 2 halt). Continued

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similar to the reopening procedures set necessary or appropriate in furtherance calculation to become stale and thereby forth in Rule 6.3.06, the Exchange of the purposes of the Act. delay the triggering of the market-wide proposes that if a circuit breaker is circuit breaker? C. Self-Regulatory Organization’s initiated in all stocks, all markets will • Should the market-wide circuit Statement on Comments on the halt trading in the options on those breaker be triggered if a sufficient Proposed Rule Change Received from stocks until the primary listing market number of single-stock circuit breakers Members, Participants, or Others has resumed trading in the stock or or price limits are triggered, and notice has been provided by the primary The Exchange neither solicited nor materially affect calculations of the S&P listing market that trading may resume. received comments on the proposal. 500 Index? • If the primary listing market does not III. Date of Effectiveness of the Should market centers implement reopen a stock within 15 minutes Proposed Rule Change and Timing for rules that mandate cancellation of following the end of the trading halt, Commission Action pending orders in the event a market- other markets may resume trading in the wide circuit breaker is triggered? If so, options on that stock if at least one Within 45 days of the date of should such a rule require cancellation market has resumed traded [sic] in the publication of this notice in the Federal of all orders or only certain order types stock. For all other stock options, e.g., Register or within such longer period (i) (e.g., limit orders)? Should all trading stock index options, the Exchange As the Commission may designate up to halts trigger such cancellation policies proposes that if a circuit breaker is 90 days of such date if it finds such or should the cancellation policies initiated in all stocks, all markets shall longer period to be appropriate and apply only to a Level 3 Market Decline? halt trading in such other stock options publishes its reasons for so finding or • Should some provision be made to and may resume trading in such options (ii) as to which the self-regulatory end the regular trading session if a anytime after the 15-minute halt organization consents, the Commission market decline suddenly occurs after period.17 will: 3:25 p.m. but does not reach the 20% (A) By order approve or disapprove level? 2. Statutory Basis such proposed rule change, or • In the event of a Level 3 Market (B) Institute proceedings to determine Decline, should some provision be made The basis under the Act for these whether the proposed rule change for the markets to hold a closing proposed rule changes are [sic] the should be disapproved. auction? requirement under Section 6(b)(5) 18 • IV. Solicitation of Comments Should the primary market have a that an Exchange have rules that are longer period (e.g., 30 minutes) to designed to promote just and equitable Interested persons are invited to reopen trading following a Level 2 principles of trade, to remove submit written data, views, and Market Decline before trading resumes impediments to and perfect the arguments concerning the foregoing, in other venues? mechanism of a free and open market including whether the proposed • In the event of a Level 3 Market and a national market system and, in changes to the market-wide circuit Decline, should the markets wait for the general, to protect investors and the breaker regime are consistent with the primary market to reopen trading in a public interest. Specifically, this rule Act. The Commission specifically particular security on the next trading proposal supports the objectives of requests comment on the following: • day before trading in that security perfecting the mechanism of a free and As discussed above, the proposed resumes? open market and the national market rule change would narrow the Comments may be submitted by any system because it promotes uniformity percentage market declines that would of the following methods: across markets concerning when and trigger a market-wide halt in trading. how to halt trading in all stock options How would the proposed changes Electronic Comments as a result of extraordinary market interact with the existing single-stock • Use the Commission’s Internet volatility in a manner that is consistent circuit breaker pilot program 19 or, if comment form (http://www.sec.gov/ with that being proposed for stocks. approved, the proposed NMS Plan to rules/sro.shtml); or establish a limit-up/limit-down • B. Self-Regulatory Organization’s Send an e-mail to rule- mechanism for individual securities? 20 [email protected]. Please include File Statement on Burden on Competition • To what extent could the Number SR–C2–2011–024 on the The Exchange does not believe that concurrent triggering of single stock subject line. circuit breakers in many S&P 500 Index the proposed rule change will impose Paper Comments any burden on competition not stocks lead to difficulties in calculating the index? Would the triggering of many • Send paper comments in triplicate single stock circuit breakers in a general different method of reopening is appropriate under to Elizabeth M. Murphy, Secretary, the circumstances, including but not limited to, no market downturn cause the index Securities and Exchange Commission, rotation, an abbreviated rotation or any other 100 F Street, NE., Washington, DC variation in the manner of the rotation. 19 See Securities Exchange Act Release No. 64735 20549–1090. 17 The Exchange understands that other markets (June 23, 2011), 76 FR 38243 (June 29, 2011) (SR– All submissions should refer to File are submitting similar rule changes and revising BATS–2011–016; SR–BYX–2011–011; SR–BX– procedures to address market-wide circuit breakers 2011–025; SR–CBOE–2011–049; SR–CHX–2011–09; Number SR–C2–2011–024. This file and reopenings for stocks, options and futures. The SR–EDGA–2011–15; SR–EDGX–2011–14; SR– number should be included on the Exchange believes it is integral that the markets FINRA–2011–023; SR–ISE–2011–028; SR– subject line if e-mail is used. To help the have consistent procedures for market-wide circuit NASDAQ–2011–067; SR–NYSE–2011–21; SR– Commission process and review your breakers and reopenings (e.g., our intention is to NYSEAmex–2011–32; SR–NYSEArca–2011–26; SR– have same ability to reopen trading in stock index NSX–2011–06; SR–Phlx–2011–64) (approving the comments more efficiently, please use options when futures markets reopen). As a result, ‘‘Phase III Pilot Program’’). The Phase III Pilot only one method. The Commission will to the extent it may be necessary, the Exchange Program has been extended through January 2012. post all comments on the Commission’s reserves the right to modify its proposed rule See, e.g., Securities Exchange Act Release 65094 Internet Web site (http://www.sec.gov/ change in order to conform its procedures based on (August 10, 2011), 76 FR 50779 (August 16, 2011) a review of the rule change filings and procedures (SR–NASDAQ–2011–011). rules/sro.shtml). Copies of the of the other equities, options and futures markets. 20 See Securities Exchange Act Release No. 64547 submission, all subsequent 18 15 U.S.C. 78f(b)(5). (May 25, 2011), 76 FR 31647 (June 1, 2011). amendments, all written statements

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with respect to the proposed rule solicit comments on the proposed rule pursuant to Rule 608 of Regulation NMS change that are filed with the change from interested persons. to address extraordinary market Commission, and all written volatility (the ‘‘Limit Up-Limit Down I. Self-Regulatory Organization’s communications relating to the Plan’’).7 As proposed, the Limit Up- Statement of the Terms of Substance of proposed rule change between the Limit Down Plan is designed to prevent the Proposed Rule Change Commission and any person, other than trades in individual NMS stocks from those that may be withheld from the The Exchange proposes to amend occurring outside specified price bands. public in accordance with the Exchange Rule 80B to revise the current The Joint CFTC–SEC Advisory provisions of 5 U.S.C. 552, will be methodology for determining when to Committee on Emerging Regulatory available for Web site viewing and halt trading in all stocks due to Issues (‘‘Committee’’) has recommended printing in the Commission’s Public extraordinary market volatility. The text that, in addition to the initiatives Reference Room, 100 F Street, NE., of the proposed rule change is available already adopted or proposed, the Washington, DC 20549, on official at the Exchange, the Commission’s markets should consider reforming the business days between the hours of 10 Public Reference Room, and http:// existing market-wide circuit breakers. a.m. and 3 p.m. Copies of such filing www.nyse.com. Among other things, the Committee also will be available for inspection and II. Self-Regulatory Organization’s noted that the interrelatedness of copying at the principal office of the Statement of the Purpose of, and today’s highly electronic markets Exchange. All comments received will Statutory Basis for, the Proposed Rule warrants the need to review the present be posted without change; the Change operation of the system-wide circuit Commission does not edit personal breakers now in place. Specifically, the identifying information from In its filing with the Commission, the Committee recommended that the submissions. You should submit only self-regulatory organization included markets consider replacing the Dow information that you wish to make statements concerning the purpose of, Jones Industrial Average (‘‘DJIA’’) with publicly available. All submissions and basis for, the proposed rule change the S&P 500® Index (‘‘S&P 500’’), should refer to File Number SR–C2– and discussed any comments it received revising the 10%, 20%, and 30% 2011–024 and should be submitted on on the proposed rule change. The text decline percentages, reducing the length or before October 25, 2011. of those statements may be examined at of trading halts, and allowing halts to be the places specified in Item IV below. triggered up to 3:30 p.m.8 For the Commission, by the Division of The Exchange has prepared summaries, Trading and Markets, pursuant to delegated The exchanges and FINRA have taken authority.21 set forth in sections A, B, and C below, into consideration the Committee’s of the most significant parts of such Elizabeth M. Murphy, recommendations, and with some statements. Secretary. modifications, have proposed changes A. Self-Regulatory Organization’s to market-wide circuit breakers that the [FR Doc. 2011–25526 Filed 10–3–11; 8:45 am] Exchange believes will provide for a BILLING CODE 8011–01–P Statement of the Purpose of, and Statutory Basis for, the Proposed Rule more meaningful measure in today’s Change faster, more electronic markets, of when to halt stocks on a market-wide basis as SECURITIES AND EXCHANGE 1. Purpose COMMISSION a result of rapid market declines. The Exchange proposes to amend Background [Release No. 34–65427; File No. SR–NYSE– Exchange Rule 80B to revise the current 2011–48] methodology for determining when to The Exchange adopted Rule 80B in October 1988 as part of an effort by the Self-Regulatory Organizations; New halt trading in all stocks due to extraordinary market volatility. The securities and futures markets to York Stock Exchange LLC; Notice of implement a coordinated means to Filing of Proposed Rule Change Exchange is proposing this rule change in consultation with other equity, address potentially destabilizing market Amending Exchange Rule 80B To 9 options, and futures markets, the volatility. NYSE Rule 80B provides for Revise the Current Methodology For market-wide halts in trading at specified Determining When To Halt Trading in Financial Industry Regulatory Authority, Inc. (‘‘FINRA’’), and staffs of levels in order to promote stability and All Stocks Due to Extraordinary Market investor confidence during a period of Volatility the Commission and the Commodity Futures Trading Commission. significant stress. As the Commission September 28, 2011. Since May 6, 2010, when the markets noted in its approval order, Rule 80B Pursuant to Section 19(b)(1) 1 of the experienced excessive volatility in an abbreviated time period, i.e., the ‘‘flash 7 See Securities Exchange Act Release No. 64547 Securities Exchange Act of 1934 (the (May 25, 2011), 76 FR 31647 (June 1, 2011). 2 3 ‘‘Act’’) and Rule 19b–4 thereunder, crash,’’ the exchanges and FINRA have 8 See Summary Report of the Committee, notice is hereby given that, on implemented market-wide measures ‘‘Recommendations Regarding Regulatory September 27, 2011, New York Stock designed to restore investor confidence Responses to the Market Events of May 6, 2010’’ Exchange LLC (‘‘NYSE’’ or the by reducing the potential for excessive (Feb, 18, 2011). The Exchange notes that NYSE Euronext submitted a comment letter to the ‘‘Exchange’’) filed with the Securities market volatility. Among the measures Committee that recommended, among other things, and Exchange Commission (the adopted include pilot plans for stock- reform of the market-wide circuit breaker rules. See ‘‘Commission’’) the proposed rule by-stock trading pauses 4 and related Letter to Elizabeth Murphy, Secretary, Commission, change as described in Items I and II changes to the clearly erroneous from Janet M. Kissane, SVP and Corporate 5 Secretary, NYSE Euronext (July 19, 2010). The below, which Items have been prepared execution rules and more stringent proposed reforms set forth in this rule proposal by the self-regulatory organization. The market maker quoting requirements.6 In differ slightly from the changes recommended in Commission is publishing this notice to addition, on April 5, 2011, the equities that comment letter, and represent consensus exchanges and FINRA filed a plan among the markets of how to address reform of the market-wide circuit breakers. 21 17 CFR 200.30–3(a)(12). 9 See Securities Exchange Act Release No. 26198 1 15 U.S.C.78s(b)(1). 4 NYSE Rule 80C. (Oct. 19, 1988) (SR–CBOE–88–14, SR–NASD–88– 2 15 U.S.C. 78a. 5 NYSE Rule 128. 46, SR–NYSE–88–22, SR–NYSE–88–23, SR–NYSE– 3 17 CFR 240.19b–4. 6 NYSE Rule 104(a)(1)(B). 88–24, and SR–Amex–88–24).

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was intended to enable market indications are disseminated during a Third, the Exchange proposes to participants to establish an equilibrium Rule 80B trading halt for stocks that decrease the current Level 1, 2, and 3 between buying and selling interest and comprise the DJIA. declines of 10%, 20%, and 30% to a to ensure that market participants have Level 1 Market Decline of 7%, a Level Proposed Amendments an opportunity to become aware of and 2 Market Decline of 13%, and Level 3 respond to significant price movements. As noted above, the Exchange, other Market Decline of 20%. In particular, as Importantly, the market-wide circuit equities, options, and futures markets, demonstrated by the May 6, 2010 flash breakers were not intended to prevent and FINRA propose to amend the crash, the current Level 1 10% decline markets from adjusting to new price market-wide circuit breakers to take into may be too high a threshold before levels; rather, they provide for a speed consideration the recommendations of determining whether to halt trading bump for extremely rapid market the Committee, and to provide for more across all securities. In fact, since declines.10 meaningful measures in today’s markets adoption, the markets have halted only In its current form,11 the rule provides of when to halt trading in all stocks. once, on October 27, 1997.14 for Level 1, 2, and 3 declines and Accordingly, the Exchange proposes to Accordingly, to reflect the potential that specified trading halts following such amend Rule 80B as follows: (i) Replace a lower, yet still significant decline may declines. The values of Levels 1, 2 and the DJIA with the S&P 500; (ii) replace warrant a market-wide trading halt, the 3 are calculated at the beginning of each the quarterly calendar recalculation of Exchange proposes to lower the market calendar quarter, using 10%, 20%, and Rule 80B triggers with daily decline percentage thresholds. 30%, respectively, of the average closing recalculations: (iii) replace the 10%, As further proposed, the Exchange value of the DJIA for the month prior to 20%, and 30% market decline would halt trading based on a Level 1 the beginning of the quarter. Each percentages with 7%, 13%, and 20% or Level 2 Market Decline only once per percentage calculation is rounded to the market decline percentages; (iv) modify day. For example, if a Level 1 Market nearest fifty points to create the Levels’ the length of the trading halts associated Decline were to occur and trading were trigger points. The Exchange with each market decline level; and (v) halted, following the reopening of disseminates the new trigger levels modify the times when a trading halt trading, the Exchange would not halt quarterly to the media and via an may be triggered. The Exchange believes the market again unless a Level 2 Information Memo and is available on that these proposed amendments update Market Decline were to occur. Likewise, the Exchange’s Web site.12 The values the rule to reflect today’s high-speed, following the reopening of trading after then remain in effect until the next highly electronic trading market while a Level 2 Market Decline, the Exchange quarterly calculation, notwithstanding still meeting the original purpose of would not halt trading again unless a whether the DJIA has moved and a Rule 80B: To ensure that market Level 3 Market Decline were to occur, Level 1, 2, or 3 decline is no longer participants have an opportunity to at which point, trading in all stocks equal to an actual 10%, 20%, or 30% become aware of and respond to would be halted until the primary significant price movements. decline in the most recent closing value market opens the next trading day. First, the Exchange proposes to of the DJIA. Fourth, to correspond with the lower replace the DJIA with the S&P 500. The Once a Rule 80B circuit breaker is in percentages associated with triggering a Exchange believes that because the S&P effect, trading in all stocks halt for the trading halt, the Exchange also proposes 500 is based on the trading prices of 500 time periods specified below: to shorten the length of the market-wide stocks, as compared to the 30 stocks that trading halts associated with each Level. Level 1 Halt comprise the DJIA, the S&P 500 As proposed, a Level 1 or 2 Market Anytime before 2 p.m.—one hour; at represents a broader base of securities against which to measure whether Decline occurring after 9:30 a.m. Eastern or after 2 p.m. but before 2:30 p.m.—30 and up to and including 3:25 p.m. minutes; at or after 2:30 p.m.—trading extraordinary market-wide volatility is occurring. In addition, as noted by the Eastern, or in the case of an early shall continue, unless there is a Level 2 scheduled close, 12:25 p.m. Eastern, Halt. Committee, using an index that correlates closely with derivative would result in a trading halt in all Level 2 Halt products, such as the E-Mini and SPY, stocks for 15 minutes. The Exchange believes that by Anytime before 1 p.m.—two hours; at will allow for a better cross-market reducing the percentage threshold, or after 1 p.m. but before 2 p.m.—one measure of market volatility. coupled with the reduced length of a hour; at or after 2 p.m.—trading shall Second, the Exchange proposes to trading halt, the proposed rule would halt and not resume for the rest of the change the recalculation of the trigger allow for trading halts for serious day. values from once every calendar quarter to daily. The Exchange believes that market declines, while at the same time, Level 3 Halt updating the trigger values daily will would minimize disruption to the At any time—trading shall halt and better reflect current market conditions. market by allowing for trading to not resume for the rest of the day. In particular, a daily recalculation will continue after the proposed more- Unless stocks are halted for the ensure that the percentage drop triggers abbreviated trading halt. The Exchange remainder of the trading day, price relate to current market conditions, and believes that in today’s markets, where are not compared to what may be stale trading information travels in micro- 10 Id. market conditions. As noted in the second speed, a 15-minute trading halt 11 The rule was last amended in 1998, when proposed rule, the daily calculations of strikes the appropriate balance between declines based on specified point drops in the DJIA the trigger values will be published the need to halt trading for market were replaced with the current methodology of before the trading day begins.13 participants to assess the market, while using a percentage decline that is recalculated at the same time reducing the time that quarterly. See Securities Exchange Act Release No. 39846 (April 9, 1998), 63 FR 18477 (April 15, 1998) 13 The Exchange and other markets will advise via the market is halted. (SR–NYSE–98–06, SR–Amex–98–09, SR–BSE–98– Trader Update the specific methodology for 06, SR–CHX–98–08, SR–NASD–98–27, and SR– publishing the daily calculations, as well as the 14 At that time, the triggers were based on Phlx–98–15). manner by which the markets will halt trading in absolute declines in the DJIA (350 point decrease 12 See e.g., NYSE Regulation Information Memos all stocks should a Rule 80B trading halt be for a Level 1 halt and 550 point decrease for a Level 11–19 (June 30, 2011) and 11–10 (March 31, 2011). triggered. 2 halt).

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Finally, because the proposed Level 1 The Exchange proposes to implement Act. The Commission specifically and Level 2 trading halts will now be 15 the changes to Rule 80B at the same requests comment on the following: minutes, the Exchange proposes time that the Limit Up-Limit Down • As discussed above, the proposed amending the rule to allow for a Level Plan, if approved, is implemented. rule change would narrow the 1 or 2 Market Decline to trigger a trading percentage market declines that would 2. Statutory Basis halt up to 3:25 p.m. Under the current trigger a market-wide halt in trading. rule, a trading halt cannot be triggered The basis under the Act for these How would the proposed changes after 2:30 p.m., and this time proposed rule changes are [sic] the interact with the existing single-stock corresponds to the need for the markets requirement under Section 6(b)(5) 16 circuit breaker pilot program 17 or, if both to reopen following a 30-minute that an Exchange have rules that are approved, the proposed NMS Plan to halt and to engage in a fair and orderly designed to promote just and equitable establish a limit-up/limit-down closing process. However, as the principles of trade, to remove mechanism for individual securities? 18 markets experienced on May 6, 2010, impediments to and perfect the • To what extent could the even if the Level 1 decline had occurred mechanism of a free and open market concurrent triggering of single stock that day, because the market decline and a national market system and, in circuit breakers in many S&P 500 Index occurred after 2:30 p.m., it would not general, to protect investors and the stocks lead to difficulties in calculating have triggered a halt under the current public interest. Specifically, this rule the index? Would the triggering of many rule. The Committee recommended that proposal supports the objectives of single stock circuit breakers in a general trading halts be triggered up to 3:30 p.m. perfecting the mechanism of a free and market downturn cause the index The Exchange agrees that the proposed open market and the national market calculation to become stale and thereby amendments must strike the appropriate system because it promotes uniformity delay the triggering of the market-wide balance between permitting trading across markets concerning when and circuit breaker? • halts as late in the day as feasible how to halt trading in all stocks as a Should the market-wide circuit without interrupting the closing result of extraordinary market volatility. breaker be triggered if a sufficient process. number of single-stock circuit breakers Accordingly, to accommodate existing B. Self-Regulatory Organization’s or price limits are triggered, and Exchange rules concerning closing Statement on Burden on Competition materially affect calculations of the S&P procedures, including the publication of The Exchange does not believe that 500 Index? • imbalance information beginning at 3:45 the proposed rule change will impose Should market centers implement p.m. and the restrictions on entry and any burden on competition that is not rules that mandate cancellation of cancellation of market on close necessary or appropriate in furtherance pending orders in the event a market- (‘‘MOC’’) and limit on close (‘‘LOC’’) of the purposes of the Act. wide circuit breaker is triggered? If so, orders after 3:45 p.m.,15 the Exchange should such a rule require cancellation proposes that the last Level 1 or Level C. Self-Regulatory Organization’s of all orders or only certain order types 2 Market Decline trading halt should be Statement on Comments on the (e.g., limit orders)? Should all trading 3:25 p.m. The Exchange proposes 3:25 Proposed Rule Change Received From halts trigger such cancellation policies p.m. as the cut-off time so that there is Members, Participants, or Others or should the cancellation policies time following the 15-minute trading No written comments were solicited apply only to a Level 3 Market Decline? halt for the markets to reopen before the or received with respect to the proposed • Should some provision be made to 3:45 cut-off for entry and cancellation of rule change. end the regular trading session if a MOC and LOC orders under Exchange market decline suddenly occurs after rules. III. Date of Effectiveness of the 3:25 p.m. but does not reach the 20% As with current Level 3 declines, Proposed Rule Change and Timing for level? under the proposed rule, a Level 3 Commission Action • In the event of a Level 3 Market Market Decline would halt trading for Within 45 days of the date of Decline, should some provision be made the remainder of the trading day, publication of this notice in the Federal for the markets to hold a closing including any trading that may take Register or within such longer period (i) auction? place after 4 p.m., Eastern, and would As the Commission may designate up to • Should the primary market have a not resume until the next trading day. 90 days of such date if it finds such longer period (e.g., 30 minutes) to In addition to these proposed longer period to be appropriate and reopen trading following a Level 2 changes, the Exchange proposes to add publishes its reasons for so finding or Market Decline before trading resumes to Rule 80B how the markets will (ii) as to which the self-regulatory in other venues? • reopen following a 15-minute trading organization consents, the Commission In the event of a Level 3 Market halt. In particular, similar to the will: Decline, should the markets wait for the reopening procedures set forth in Rule (A) By order approve or disapprove primary market to reopen trading in a 80C, the Exchange proposes that if the the proposed rule change, or primary market halts trading in all (B) Institute proceedings to determine 17 See Securities Exchange Act Release No. 64735 stocks, all markets will halt trading in (June 23, 2011), 76 FR 38243 (June 29, 2011) (SR– whether the proposed rule change BATS–2011–016; SR–BYX–2011–011; SR–BX– those stocks until the primary market should be disapproved. 2011–025; SR–CBOE–2011–049; SR–CHX–2011–09; has resumed trading or notice has been SR–EDGA–2011–15; SR–EDGX–2011–14; SR– provided by the primary market that IV. Solicitation of Comments FINRA–2011–023; SR–ISE–2011–028; SR– trading may resume. As further Interested persons are invited to NASDAQ–2011–067; SR–NYSE–2011–21; SR– NYSEAmex–2011–32; SR–NYSEArca–2011–26; SR– proposed, if the primary market does submit written data, views, and NSX–2011–06; SR–Phlx–2011–64) (approving the not re-open a security within 15 arguments concerning the foregoing, ‘‘Phase III Pilot Program’’). The Phase III Pilot minutes following the end of the trading including whether the proposed Program has been extended through January 2012. halt, other markets may resume trading changes to the market-wide circuit See, e.g., Securities Exchange Act Release 65094 (August 10, 2011), 76 FR 50779 (August 16, 2011) in that security. breaker regime are consistent with the (SR–NASDAQ–2011–011). 18 See Securities Exchange Act Release No. 64547 15 See NYSE Rule 123C. 16 15 U.S.C. 78f(b)(5). (May 25, 2011), 76 FR 31647 (June 1, 2011).

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particular security on the next trading For the Commission, by the Division of and C below, of the most significant day before trading in that security Trading and Markets, pursuant to delegated aspects of such statements. 19 resumes? authority. Elizabeth M. Murphy, A. Self-Regulatory Organization’s Comments may be submitted by any Secretary. Statement of the Purpose of, and of the following methods: [FR Doc. 2011–25525 Filed 10–3–11; 8:45 am] Statutory Basis for, the Proposed Rule Change Electronic Comments BILLING CODE 8011–01–P 1. Purpose • Use the Commission’s Internet comment form (http://www.sec.gov/ SECURITIES AND EXCHANGE The Exchange proposes to amend rules/sro.shtml); or COMMISSION Exchange Article 20, Rule 2 to revise the • Send an e-mail to rule- [Release No. 34–65426; File No. SR–CHX– current methodology for determining [email protected]. Please include File 2011–30] when to halt trading in all stocks due to Number SR–NYSE–2011–48 on the extraordinary market volatility. The subject line. Self-Regulatory Organizations; Exchange is proposing this rule change Chicago Stock Exchange, Inc.; Notice in consultation with other equity, Paper Comments of Filing Proposed Rule Change To options, and futures markets, the Revise the Current Methodology for Financial Industry Regulatory • Send paper comments in triplicate Determining When To Halt Trading in Authority, Inc. (‘‘FINRA’’), and staffs of to Elizabeth M. Murphy, Secretary, All Stocks Due To Extraordinary the Commission and the Commodity Securities and Exchange Commission, Market Volatility Futures Trading Commission. 100 F Street, NE., Washington, DC Since May 6, 2010, when the markets 20549–1090. September 28, 2011. experienced excessive volatility in an Pursuant to Section 19(b)(1) of the All submissions should refer to File abbreviated time period, i.e., the ‘‘flash Securities Exchange Act of 1934 (the crash,’’ the exchanges and FINRA have Number SR–NYSE–2011–48. This file ‘‘Act’’),1 and Rule 19b–4 thereunder,2 implemented market-wide measures number should be included on the notice is hereby given that on designed to restore investor confidence subject line if e-mail is used. To help the September 27, 2011, the Chicago Stock by reducing the potential for excessive Commission process and review your Exchange, Inc. (‘‘Exchange’’ or ‘‘CHX’’) market volatility. Among the measures comments more efficiently, please use filed with the Securities and Exchange adopted include pilot plans for stock- only one method. The Commission will Commission (the ‘‘Commission’’) the by-stock trading pauses 3 post all comments on the Commission’s proposed rule change as described in and related Internet Web site (http://www.sec.gov/ changes to the clearly erroneous Items I and II below, which Items have 4 rules/sro.shtml). Copies of the execution rules and more stringent been prepared by the Exchange. The 5 submission, all subsequent Commission is publishing this notice to market maker quoting requirements. In amendments, all written statements solicit comments on the proposed rule addition, on April 5, 2011, the equities with respect to the proposed rule change from interested persons. exchanges and FINRA filed a plan pursuant to Rule 608 of Regulation NMS change that are filed with the I. Self-Regulatory Organization’s to address extraordinary market Commission, and all written Statement of the Terms of Substance of volatility (the ‘‘Limit Up-Limit Down communications relating to the the Proposed Rule Change Plan’’).6 As proposed, the Limit Up- proposed rule change between the Limit Down Plan is designed to prevent Commission and any person, other than The Exchange proposes [sic] amend Exchange Article 20, Rule 2 to revise the trades in individual NMS stocks from those that may be withheld from the occurring outside specified price bands. public in accordance with the current methodology for determining when to halt trading in all stocks due to The Joint CFTC–SEC Advisory provisions of 5 U.S.C. 552, will be extraordinary market volatility. The text Committee on Emerging Regulatory available for Web site viewing and of this proposed rule change is available Issues (‘‘Committee’’) has recommended printing in the Commission’s Public on the Exchange’s Web site at (http:// that, in addition to the initiatives Reference Room, 100 F Street, NE., www.chx.com), at the Exchange’s Office already adopted or proposed, the Washington, DC 20549, on official of the Secretary and in the markets should consider reforming the business days between the hours of 10 Commission’s Public Reference Room. existing market-wide circuit breakers. a.m. and 3 p.m. Copies of such filing Among other things, the Committee II. Self-Regulatory Organization’s also will be available for inspection and noted that the interrelatedness of Statement of the Purpose of, and copying at the principal office of the today’s highly electronic markets Statutory Basis for, the Proposed Rule Exchange. All comments received will warrants the need to review the present Change be posted without change; the operation of the system-wide circuit Commission does not edit personal In its filing with the Commission, the breakers now in place. Specifically, the identifying information from CHX included statements concerning Committee recommended that the submissions. You should submit only the purpose of and basis for the markets consider replacing the Dow information that you wish to make proposed rule change and discussed any Jones Industrial Average (‘‘DJIA’’) with publicly available. All submissions comments it received regarding the the S&P 500® Index (‘‘S&P 500’’), should refer to File Number SR–NYSE– proposal. The text of these statements revising the 10%, 20%, and 30% 2011–48 and should be submitted on or may be examined at the places specified decline percentages, reducing the length before October 25, 2011. in Item IV below. The CHX has prepared summaries, set forth in sections A, B 3 CHX Article 20, Rule 2(e). 4 CHX Article 20, Rule 10. 19 17 CFR 200.30–3(a)(12). 5 CHX Article 16, Rule 8a(2). 1 15 U.S.C. 78s(b)(1). 6 See Securities Exchange Act Release No. 64547 2 17 CFR 240.19b–4. (May 25, 2011), 76 FR 31647 (June 1, 2011).

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of trading halts, and allowing halts to be the beginning of the quarter. Each original purpose of Article 20, Rule 2: to triggered up to 2:30 p.m. Central Time.7 percentage calculation is rounded to the ensure that market participants have an The exchanges and FINRA have taken nearest fifty points to create the Levels’ opportunity to become aware of and into consideration the Committee’s trigger points. The NYSE disseminates respond to significant price movements. recommendations, and with some the new trigger levels quarterly to the First, the Exchange proposes to modifications, have proposed changes media and via an Information Memo replace the DJIA with the S&P 500. The to market-wide circuit breakers that the and is available on the Exchange’s Web Exchange believes that because the S&P Exchange believes will provide for a site.11 The values then remain in effect 500 is based on the trading prices of 500 more meaningful measure in today’s until the next quarterly calculation, stocks, as compared to the 30 stocks that faster, more electronic markets, of when notwithstanding whether the DJIA has comprise the DJIA, the S&P 500 to halt stocks on a market-wide basis as moved and a Level 1, 2, or 3 decline is represents a broader base of securities a result of rapid market declines. no longer equal to an actual 10%, 20%, against which to measure whether Background or 30% decline in the most recent extraordinary market-wide volatility is closing value of the DJIA. occurring. In addition, as noted by the The Exchange adopted Article 20, Once an Article 20, Rule 2 circuit Committee, using an index that Rule 2 in October 1988 as part of an breaker is in effect, trading in all stocks correlates closely with derivative effort by the securities and futures halt [sic] for the time periods (all times products, such as the E-Mini and SPY, markets to implement a coordinated are Central Time) specified below: will allow for a better cross-market means to address potentially 8 Level 1 Halt measure of market volatility. destabilizing market volatility. CHX Second, the Exchange proposes to Article 20, Rule 2 provides for market- Anytime before 1 p.m.—one hour; at or after 1 p.m. but before 1:30 change the recalculation of the trigger wide halts in trading at specified levels values from once every calendar quarter in order to promote stability and p.m.—30 minutes; at or after 1:30 to daily. The Exchange believes that investor confidence during a period of p.m.—trading shall continue, unless updating the trigger values daily will significant stress. As the Commission there is a Level 2 Halt. better reflect current market conditions. noted in its approval order, Article 20, Level 2 Halt In particular, a daily recalculation will Rule 2 was intended to enable market Anytime before 12 p.m.—two hours; ensure that the percentage drop triggers participants to establish an equilibrium at or after 12 p.m. but before 1 relate to current market conditions, and between buying and selling interest and p.m.—one hour; at or after 1 p.m.— are not compared to what may be stale to ensure that market participants have trading shall halt and not resume market conditions. As noted in the an opportunity to become aware of and for the rest of the day. proposed rule, the daily calculations of respond to significant price movements. Level 3 Halt Importantly, the market-wide circuit the trigger values will be published At any time—trading shall halt and before the trading day begins.12 breakers were not intended to prevent not resume for the rest of the day. markets from adjusting to new price Third, the Exchange proposes to Unless stocks are halted for the decrease the current Level 1, 2, and 3 levels; rather, they provide for a speed remainder of the trading day, price bump for extremely rapid market declines of 10%, 20%, and 30% to a indications are disseminated during an Level 1 Market Decline of 7%, a Level declines.9 Article 20, Rule 2 trading halt for stocks 10 2 Market Decline of 13%, and Level 3 In its current form, the rule provides that comprise the DJIA. for Level 1, 2, and 3 declines and Market Decline of 20%. In particular, as specified trading halts following such Proposed Amendments demonstrated by the May 6, 2010 flash crash, the current Level 1 10% decline declines. The values of Levels 1, 2 and As noted above, the Exchange, other may be too high a threshold before 3 are calculated at the beginning of each equities, options, and futures markets, determining whether to halt trading calendar quarter, using 10%, 20% and and FINRA propose to amend the across all securities. In fact, since 30%, respectively, of the average closing market-wide circuit breakers to take into adoption, the markets have halted only value of the DJIA for the month prior to consideration the recommendations of once, on October 27, 1997.13 the Committee, and to provide for more 7 Accordingly, to reflect the potential that See Summary Report of the Committee, meaningful measures in today’s markets ‘‘Recommendations Regarding Regulatory a lower, yet still significant decline may of when to halt trading in all stocks. Responses to the Market Events of May 6, 2010’’ warrant a market-wide trading halt, the Accordingly, the Exchange proposes to (Feb. 18, 2011). The Exchange notes that NYSE Exchange proposes to lower the market Euronext submitted a comment letter to the amend Article 20, Rule 2 as follows: (i) decline percentage thresholds. Committee that recommended, among other things, Replace the DJIA with the S&P 500; (ii) reform of the market-wide circuit breaker rules. See As further proposed, the Exchange replace the quarterly calendar Letter to Elizabeth Murphy, Secretary, Commission, would halt trading based on a Level 1 from Janet M. Kissane, SVP and Corporate recalculation of Article 20, Rule 2 or Level 2 Market Decline only once per Secretary, NYSE Euronext (July 19, 2010). The triggers with daily recalculations; (iii) day. For example, if a Level 1 Market proposed reforms set forth in this rule proposal replace the 10%, 20%, and 30% market differ slightly from the changes recommended in Decline were to occur and trading were decline percentages with 7%, 13%, and that comment letter, and represent consensus halted, following the reopening of among the markets of how to address reform of the 20% market decline percentages; (iv) trading, the Exchange would not halt market-wide circuit breakers. modify the length of the trading halts 8 the market again unless a Level 2 See Securities Exchange Act Release No. 26198 associated with each market decline (Oct. 19, 1988). 9 Id. level; and (v) modify the times when a 12 The NYSE and other markets will advise via 10 The rule was last amended in 1998, when trading halt may be triggered. The Trader Update the specific methodology for declines based on specified point drops in the DJIA Exchange believes that these proposed publishing the daily calculations, as well as the were replaced with the current methodology of amendments update the rule to reflect manner by which the markets will halt trading in using a percentage decline that is recalculated today’s high-speed, highly electronic all stocks should an Article 20, Rule 2 trading halt quarterly. See Securities Exchange Act Release No. be triggered. 39846 (April 9, 1998), 63 FR 18477 (April 15, 1998) trading market while still meeting the 13 At that time, the triggers were based on (SR–NYSE–98–06, SR–Amex–98–09, SR–BSE–98– absolute declines in the DJIA (350 point decrease 06, SR–CHX–98–08, SR–NASD–98–27, and SR– 11 See, e.g., NYSE Regulation Information Memos for a Level 1 halt and 550 point decrease for a Level Phlx–98–15). 11–19 (June 30, 2011) and 11–10 (March 31, 2011). 2 halt).

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Market Decline were to occur. Likewise, p.m. Central, and the restrictions on B. Self-Regulatory Organization’s following the reopening of trading after entry and cancellation of market on Statement on Burden on Competition a Level 2 Market Decline, the Exchange close (‘‘MOC’’) and limit on close The Exchange does not believe that would not halt trading again unless a (‘‘LOC’’) orders after 2:45 p.m.,14 the the proposed rule change will impose Level 3 Market Decline were to occur, Exchange proposes that the last Level 1 any burden on competition that is not at which point, trading in all stocks or Level 2 Market Decline trading halt necessary or appropriate in furtherance would be halted until the primary should be 2:25 p.m. or in the case of an of the purposes of the Act. market opens the next trading day. early scheduled close, 11:25 a.m. Fourth, to correspond with the lower Central Time. The Exchange proposes C. Self-Regulatory Organization’s percentages associated with triggering a 2:25 p.m. or in the case of an early Statement on Comments on the trading halt, the Exchange also proposes scheduled close, 11:25 a.m. Central Proposed Rule Change Received From to shorten the length of the market-wide Time as the cut-off time so that there is Members, Participants, or Others trading halts associated with each Level. time following the 15-minute trading No written comments were either As proposed, a Level 1 or 2 Market halt for the markets to reopen before the solicited or received. Decline occurring after 8:30 a.m. Central 2:45 cut-off for entry and cancellation of Time and up to and including 2:25 p.m. III. Date of Effectiveness of the MOC and LOC orders under NYSE Proposed Rule Change and Timing for or in the case of an early scheduled rules. close, 11:25 a.m. Central Time, would Commission Action result in a trading halt in all stocks for As with current Level 3 declines, Within 45 days of the date of 15 minutes. under the proposed rule, a Level 3 publication of this notice in the Federal The Exchange believes that by Market Decline would halt trading for Register or within such longer period (i) reducing the percentage threshold, the remainder of the trading day, as the Commission may designated up coupled with the reduced length of a including any trading that may take to 90 days of such date if it finds such trading halt, the proposed rule would place after 3 p.m., Central Time, and longer period to be appropriate and allow for trading halts for serious would not resume until the next trading publishes its reasons for so finding or market declines, while at the same time, day. (ii) as to which the self-regulatory would minimize disruption to the In addition to these proposed organization consents, the Commission market by allowing for trading to changes, the Exchange proposes to add will: continue after the proposed more- to Article 20, Rule 2 how the markets (A) By order approve or disapprove abbreviated trading halt. The Exchange will reopen following a 15-minute such proposed rule change, or believes that in today’s markets, where trading halt. In particular, similar to the (B) Institute proceedings to determine trading information travels in micro- reopening procedures set forth in whether the proposed rule change second speed, a 15-minute trading halt Article 20, Rule 2, the Exchange should be disapproved. strikes the appropriate balance between proposes that if the primary market IV. Solicitation of Comments the need to halt trading for market halts trading in all stocks, all markets Interested persons are invited to participants to assess the market, while will halt trading in those stocks until at the same time reducing the time that submit written data, views, and the primary market has resumed trading arguments concerning the foregoing, the market is halted. or notice has been provided by the Finally, because the proposed Level 1 including whether the proposed primary market that trading may and Level 2 trading halts will now be 15 changes to the market-wide circuit resume. As further proposed, if the minutes, the Exchange proposes breaker regime are consistent with the primary market does not re-open a amending the rule to allow for a Level Act. The Commission specifically security within 15 minutes following 1 or 2 Market Decline to trigger a trading requests comment on the following: the end of the trading halt, other halt up to 2:25 p.m. or in the case of an • As discussed above, the proposed markets may resume trading in that early scheduled close, 11:25 a.m. rule change would narrow the Central Time. Under the current rule, a security. percentage market declines that would trading halt cannot be triggered after 2. Statutory Basis trigger a market-wide halt in trading. 1:30 p.m., and this time corresponds to How would the proposed changes the need for the markets both to reopen The bases under the Act for these interact with the existing single-stock following a 30-minute halt and to proposed rule changes are the circuit breaker pilot program 16 or, if engage in a fair and orderly closing requirement under Section 6(b)(5) 15 approved, the proposed NMS Plan to process. However, as the markets that an Exchange have rules that are establish a limit-up/limit-down experienced on May 6, 2010, even if the designed to promote just and equitable mechanism for individual securities? 17 • Level 1 decline had occurred that day, principles of trade, to remove To what extent could the because the market decline occurred impediments to and perfect the concurrent triggering of single stock after 1:30 p.m., it would not have mechanism of a free and open market triggered a halt under the current rule. and a national market system and, in 16 See Securities Exchange Act Release No. 64735 The Committee recommended that general, to protect investors and the (June 23, 2011), 76 FR 38243 (June 29, 2011) (SR–BATS–2011–016; SR–BYX–2011–011; trading halts be triggered up to 2:30 p.m. public interest. Specifically, this rule SR–BX–2011–025; SR–CBOE–2011–049; SR–CHX– Central Time. The Exchange agrees that proposal supports the objectives of 2011–09; SR–EDGA–2011–15; SR–EDGX–2011–14; the proposed amendments must strike perfecting the mechanism of a free and SR–FINRA–2011–023; SR–ISE–2011–028; SR– the appropriate balance between open market and the national market NASDAQ–2011–067; SR–NYSE–2011–21; SR– NYSEAmex-2011–32; SR–NYSEArca-2011–26; SR– permitting trading halts as late in the system because it promotes uniformity NSX–2011–06; SR–Phlx-2011–64) (approving the day as feasible without interrupting the across markets concerning when and ‘‘Phase III Pilot Program’’). The Phase III Pilot closing process. how to halt trading in all stocks as a Program has been extended through January 2012. Accordingly, to accommodate existing result of extraordinary market volatility. See, e.g., Securities Exchange Act Release 65094 (August 10, 2011), 76 FR 50779 (August 16, 2011) NYSE rules concerning closing (SR–NASDAQ–2011–011). procedures, including the publication of 14 See NYSE Rule 123C. 17 See Securities Exchange Act Release No. 64547 imbalance information beginning at 2:45 15 15 U.S.C. 78f(b)(5). (May 25, 2011), 76 FR 31647 (June 1, 2011).

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circuit breakers in many S&P 500 Index post all comments on the Commission’s Items I and II below, which Items have stocks lead to difficulties in calculating Internet Web site (http://www.sec.gov/ been prepared by the self-regulatory the index? Would the triggering of many rules/sro.shtml). Copies of the organization. The Commission is single stock circuit breakers in a general submission, all subsequent publishing this notice to solicit market downturn cause the index amendments, all written statements comments on the proposed rule change calculation to become stale and thereby with respect to the proposed rule from interested persons. delay the triggering of the market-wide change that are filed with the I. Self-Regulatory Organization’s circuit breaker? Commission, and all written • Should the market-wide circuit communications relating to the Statement of the Terms of Substance of breaker be triggered if a sufficient proposed rule change between the the Proposed Rule Change number of single-stock circuit breakers Commission and any person, other than The Exchange proposes to amend or price limits are triggered, and those that may be withheld from the NYSE Arca Equities Rule 7.12 to revise materially affect calculations of the S&P public in accordance with the the current methodology for 500 Index? provisions of 5 U.S.C. 552, will be determining when to halt trading in all • Should market centers implement available for Web site viewing and stocks due to extraordinary market rules that mandate cancellation of printing in the Commission’s Public volatility. The text of the proposed rule pending orders in the event a market- Reference Room, 100 F Street, NE., change is available at the Exchange, the wide circuit breaker is triggered? If so, Washington, DC 20549, on official Commission’s Public Reference Room, should such a rule require cancellation business days between the hours of 10 and http://www.nyse.com. of all orders or only certain order types a.m. and 3 p.m. Copies of such filing (e.g., limit orders)? Should all trading also will be available for inspection and II. Self-Regulatory Organization’s halts trigger such cancellation policies copying at the principal office of the Statement of the Purpose of, and or should the cancellation policies Exchange. All comments received will Statutory Basis for, the Proposed Rule apply only to a Level 3 Market Decline? be posted without change; the Change • Should some provision be made to Commission does not edit personal In its filing with the Commission, the end the regular trading session if a identifying information from self-regulatory organization included market decline suddenly occurs after submissions. You should submit only statements concerning the purpose of, 3:25 p.m. but does not reach the 20% information that you wish to make and basis for, the proposed rule change level? publicly available. All submissions and discussed any comments it received • In the event of a Level 3 Market should refer to File Number SR–CHX– on the proposed rule change. The text Decline, should some provision be made 2011–30 and should be submitted on or of those statements may be examined at for the markets to hold a closing before October 25, 2011. the places specified in Item IV below. auction? The Exchange has prepared summaries, • For the Commission, by the Division of Should the primary market have a Trading and Markets, pursuant to delegated set forth in sections A, B, and C below, longer period (e.g., 30 minutes) to authority.18 of the most significant parts of such reopen trading following a Level 2 Elizabeth M. Murphy, statements. Market Decline before trading resumes Secretary. A. Self-Regulatory Organization’s in other venues? [FR Doc. 2011–25524 Filed 10–3–11; 8:45 am] • In the event of a Level 3 Market Statement of the Purpose of, and Decline, should the markets wait for the BILLING CODE 8011–01–P Statutory Basis for, the Proposed Rule primary market to reopen trading in a Change particular security on the next trading SECURITIES AND EXCHANGE 1. Purpose day before trading in that security COMMISSION resumes? The Exchange proposes to amend Comments may be submitted by any [Release No. 34–65439; File No. SR– NYSE Arca Equities Rule 7.12 to revise of the following methods: NYSEArca–2011–68] the current methodology for determining when to halt trading in all Electronic Comments Self-Regulatory Organizations; NYSE stocks due to extraordinary market • Use the Commission’s Internet Arca, Inc.; Notice of Filing of Proposed volatility. The Exchange is proposing comment form (http://www.sec.gov/ Rule Change Amending NYSE Arca this rule change in consultation with rules/sro.shtml); or Equities Rule 7.12 To Revise the other equity, options, and futures • Send an e-mail to rule- Current Methodology for Determining markets, the Financial Industry [email protected]. Please include File When To Halt Trading in All Stocks Regulatory Authority, Inc. (‘‘FINRA’’), Number SR–CHX–2011–30 on the Due to Extraordinary Market Volatility and staffs of the Commission and the subject line. September 28, 2011 Commodity Futures Trading Commission. Paper Comments Pursuant to Section 19(b)(1) 1 of the Securities Exchange Act of 1934 (the Since May 6, 2010, when the markets • Send paper comments in triplicate ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 experienced excessive volatility in an to Elizabeth M. Murphy, Secretary, notice is hereby given that, on abbreviated time period, i.e., the ‘‘flash Securities and Exchange Commission, September 27, 2011, NYSE Arca, Inc. crash,’’ the exchanges and FINRA have 100 F Street, NE., Washington, DC (the ‘‘Exchange’’ or ‘‘NYSE Arca’’) filed implemented market-wide measures 20549–1090. with the Securities and Exchange designed to restore investor confidence All submissions should refer to File Commission (the ‘‘Commission’’) the by reducing the potential for excessive Number SR–CHX–2011–30. This file proposed rule change as described in market volatility. Among the measures number should be included on the adopted include pilot plans for stock- 4 subject line if e-mail is used. To help the 18 17 CFR 200.30–3(a)(12). by-stock trading pauses and related Commission process and review your 1 15 U.S.C. 78s(b)(1). changes to the clearly erroneous comments more efficiently, please use 2 15 U.S.C. 78a. only one method. The Commission will 3 17 CFR 240.19b–4. 4 NYSE Arca Equities Rule 7.11.

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execution rules 5 and more stringent Market Volatility (i.e., NYSE Rule 80B).9 Level 1 Halt 6 market maker quoting requirements. In NYSE Rule 80B provides for market- Anytime before 2 p.m.—one hour; at addition, on April 5, 2011, the equities wide halts in trading at specified levels or after 2 p.m. but before 2:30 p.m.—30 exchanges and FINRA filed a plan in order to promote stability and minutes; at or after 2:30 p.m.—trading pursuant to Rule 608 of Regulation NMS investor confidence during a period of shall continue, unless there is a Level 2 to address extraordinary market significant stress. As the Commission Halt. volatility (the ‘‘Limit Up-Limit Down noted in its approval order, NYSE Rule 7 Level 2 Halt Plan’’). As proposed, the Limit Up- 80B was intended to enable market Limit Down Plan is designed to prevent participants to establish an equilibrium Anytime before 1 p.m.—two hours; at trades in individual NMS stocks from between buying and selling interest and or after 1 p.m. but before 2 p.m.—one occurring outside specified price bands. hour; at or after 2 p.m.—trading shall The Joint CFTC–SEC Advisory to ensure that market participants have an opportunity to become aware of and halt and not resume for the rest of the Committee on Emerging Regulatory day. Issues (‘‘Committee’’) has recommended respond to significant price movements. that, in addition to the initiatives Importantly, the market-wide circuit Level 3 Halt already adopted or proposed, the breakers were not intended to prevent At any time—trading shall halt and markets should consider reforming the markets from adjusting to new price not resume for the rest of the day. existing market-wide circuit breakers. levels; rather, they provide for a speed Proposed Amendments Among other things, the Committee bump for extremely rapid market noted that the interrelatedness of declines.10 As noted above, the Exchange, other today’s highly electronic markets In its current form,11 NYSE Arca equities, options, and futures markets, and FINRA propose to amend the warrants the need to review the present Equities Rule 7.12 provides for Level 1, market-wide circuit breakers to take into operation of the system-wide circuit 2, and 3 declines and specified trading consideration the recommendations of breakers now in place. Specifically, the halts following such declines. The Committee recommended that the the Committee, and to provide for more values of Levels 1, 2 and 3 are meaningful measures in today’s markets markets consider replacing the Dow calculated at the beginning of each Jones Industrial Average (‘‘DJIA’’) with of when to halt trading in all stocks. calendar quarter, using 10%, 20% and the S&P 500® Index (‘‘S&P 500’’), Accordingly, the Exchange proposes to 30%, respectively, of the average closing revising the 10%, 20%, and 30% amend NYSE Arca Equities Rule 7.12 as value of the DJIA for the month prior to decline percentages, reducing the length follows: (i) Replace the DJIA with the of trading halts, and allowing halts to be the beginning of the quarter. Each S&P 500; (ii) replace the quarterly triggered up to 3:30 p.m.8 percentage calculation is rounded to the calendar recalculation of Rule 7.12 The exchanges and FINRA have taken nearest fifty points to create the Levels’ triggers with daily recalculations; (iii) into consideration the Committee’s trigger points. The NYSE disseminates replace the 10%, 20%, and 30% market recommendations, and with some the new trigger levels quarterly to the decline percentages with 7%, 13%, and modifications, have proposed changes media and via an Information Memo 20% market decline percentages; (iv) to market-wide circuit breakers that the and is available on the NYSE’s Web modify the length of the trading halts Exchange believes will provide for a site.12 The values then remain in effect associated with each market decline more meaningful measure in today’s until the next quarterly calculation, level; and (v) modify the times when a faster, more electronic markets, of when notwithstanding whether the DJIA has trading halt may be triggered. The to halt stocks on a market-wide basis as moved and a Level 1, 2, or 3 decline is Exchange believes that these proposed a result of rapid market declines. no longer equal to an actual 10%, 20%, amendments update the rule to reflect today’s high-speed, highly electronic or 30% decline in the most recent Background trading market while still meeting the closing value of the DJIA. In October 1988 as part of an effort by original purpose of Rule 7.12: To ensure the securities and futures markets to Once a Rule 7.12 circuit breaker is in that market participants have an implement a coordinated means to effect, trading in all stocks halt for the opportunity to become aware of and address potentially destabilizing market time periods specified below: respond to significant price movements. volatility, the New York Stock First, the Exchange proposes to Exchange, LLC (‘‘NYSE’’) and other 9 See Securities Exchange Act Release No. 26198 replace the DJIA with the S&P 500. The markets adopted rules governing (Oct. 19, 1988) (SR–CBOE–88–14, SR–NASD–88– Exchange believes that because the S&P 46, SR–NYSE–88–22, SR–NYSE–88–23, SR–NYSE– 500 is based on the trading prices of 500 Trading Halts Due to Extraordinary 88–24, and SR–Amex–88–24). NYSE Arca Equities Rule 7.12 was adopted in 2001 when the Pacific stocks, as compared to the 30 stocks that 5 NYSE Arca Equities Rule 7.10. Exchange, Inc. filed a rule proposal to create an comprise the DJIA, the S&P 500 6 NYSE Arca Equities Rule 7.23(a)(1). electronic trading facility called the Archipelago represents a broader base of securities 7 See Securities Exchange Act Release No. 64547 Exchange (‘‘ArcaEx’’). See Securities Exchange Act against which to measure whether (May 25, 2011), 76 FR 31647 (June 1, 2011). Release No. 44983 (Oct. 25, 2001), 66 FR 55225 extraordinary market-wide volatility is (Nov. 1, 2001) (SR–PCX–00–25). The Pacific 8 See Summary Report of the Committee, occurring. In addition, as noted by the ‘‘Recommendations Regarding Regulatory Exchange, Inc. is now known as NYSE Arca, and Responses to the Market Events of May 6, 2010’’ ArcaEx is now known as NYSE Arca Equities. Committee, using an index that (Feb, 18, 2011). The Exchange notes that NYSE 10 Id. correlates closely with derivative Euronext submitted a comment letter to the 11 The rule was last amended in 1998, when products, such as the E-Mini and SPY, Committee that recommended, among other things, declines based on specified point drops in the DJIA will allow for a better cross-market reform of the market-wide circuit breaker rules. See were replaced with the current methodology of Letter to Elizabeth Murphy, Secretary, Commission, using a percentage decline that is recalculated measure of market volatility. from Janet M. Kissane, SVP and Corporate quarterly. See Securities Exchange Act Release No. Second, the Exchange proposes to Secretary, NYSE Euronext (July 19, 2010). The 39846 (April 9, 1998), 63 FR 18477 (April 15, 1998) change the recalculation of the trigger proposed reforms set forth in this rule proposal (SR–NYSE–98–06, SR–Amex–98–09, SR–BSE–98– values from once every calendar quarter differ slightly from the changes recommended in 06, SR–CHX–98–08, SR–NASD–98–27, and SR– that comment letter, and represent consensus Phlx–98–15). to daily. The Exchange believes that among the markets of how to address reform of the 12 See e.g., NYSE Regulation Information Memos updating the trigger values daily will market-wide circuit breakers. 11–19 (June 30, 2011) and 11–10 (March 31, 2011). better reflect current market conditions.

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In particular, a daily recalculation will trading halt, the proposed rule would to Rule 7.12 how the markets will ensure that the percentage drop triggers allow for trading halts for serious reopen following a 15-minute trading relate to current market conditions, and market declines, while at the same time, halt. In particular, similar to the are not compared to what may be stale would minimize disruption to the reopening procedures set forth in Rule market conditions. As noted in the market by allowing for trading to 7.12, the Exchange proposes that if the proposed rule, the daily calculations of continue after the proposed more- primary market halts trading in all the trigger values will be published abbreviated trading halt. The Exchange stocks, all markets will halt trading in before the trading day begins.13 believes that in today’s markets, where those stocks until the primary market Third, the Exchange proposes to trading information travels in micro- has resumed trading or notice has been decrease the current Level 1, 2, and 3 second speed, a 15-minute trading halt provided by the primary market that declines of 10%, 20%, and 30% to a strikes the appropriate balance between trading may resume. As further Level 1 Market Decline of 7%, a Level the need to halt trading for market proposed, if the primary market does 2 Market Decline of 13%, and Level 3 participants to assess the market, while not re-open a security within 15 Market Decline of 20%. In particular, as at the same time reducing the time that minutes following the end of the trading demonstrated by the May 6, 2010 flash the market is halted. halt, other markets may resume trading crash, the current Level 1 10% decline Finally, because the proposed Level 1 in that security. may be too high a threshold before and Level 2 trading halts will now be 15 The Exchange proposes to implement determining whether to halt trading minutes, the Exchange proposes the changes to NYSE Arca Equities Rule across all securities. In fact, since amending the rule to allow for a Level 7.12 at the same time that the Limit Up- adoption, the markets have halted only 1 or 2 Market Decline to trigger a trading Limit Down Plan, if approved, is once, on October 27, 1997.14 halt up to 3:25 p.m. Eastern. Under the implemented. Accordingly, to reflect the potential that current rule, a trading halt cannot be a lower, yet still significant decline may triggered after 2:30 p.m., and this time 2. Statutory Basis warrant a market-wide trading halt, the corresponds to the need for the markets The basis under the Act for these Exchange proposes to lower the market both to reopen following a 30-minute proposed rule changes are [sic] the decline percentage thresholds. halt and to engage in a fair and orderly requirement under Section 6(b)(5)17 that As further proposed, the Exchange closing process. However, as the an Exchange have rules that are would halt trading based on a Level 1 markets experienced on May 6, 2010, designed to promote just and equitable or Level 2 Market Decline only once per even if the Level 1 decline had occurred principles of trade, to remove day. For example, if a Level 1 Market that day, because the market decline impediments to and perfect the Decline were to occur and trading were occurred after 2:30 p.m., it would not mechanism of a free and open market halted, following the reopening of have triggered a halt under the current and a national market system and, in trading, the Exchange would not halt rule. The Committee recommended that general, to protect investors and the the market again unless a Level 2 trading halts be triggered up to 3:30 p.m. public interest. Specifically, this rule Market Decline were to occur. Likewise, The Exchange agrees that the proposed proposal supports the objectives of following the reopening of trading after amendments must strike the appropriate perfecting the mechanism of a free and a Level 2 Market Decline, the Exchange balance between permitting trading open market and the national market would not halt trading again unless a halts as late in the day as feasible system because it promotes uniformity Level 3 Market Decline were to occur, without interrupting the closing across markets concerning when and at which point, trading in all stocks process. how to halt trading in all stocks as a would be halted until the primary Accordingly, to accommodate existing result of extraordinary market volatility. market reopens the next trading day. NYSE rules concerning closing Fourth, to correspond with the lower procedures, including the publication of B. Self-Regulatory Organization’s percentages associated with triggering a imbalance information beginning at 3:45 Statement on Burden on Competition trading halt, the Exchange also proposes p.m. Eastern and the restrictions on The Exchange does not believe that to shorten the length of the market-wide entry and cancellation of market on the proposed rule change will impose trading halts associated with each Level. close (‘‘MOC’’) and limit on close any burden on competition that is not As proposed, a Level 1 or 2 Market (‘‘LOC’’) orders after 3:45 p.m.,16 the necessary or appropriate in furtherance Decline occurring after 9:30 a.m. Eastern Exchange proposes that the last Level 1 of the purposes of the Act. and up to and including 3:25 p.m. or Level 2 Market Decline trading halt Eastern, or in the case of an early should be 3:25 p.m. The Exchange C. Self-Regulatory Organization’s scheduled close, 12:25 p.m. Eastern, proposes 3:25 p.m. as the cut-off time so Statement on Comments on the would result in a trading halt in all that there is time following the 15- Proposed Rule Change Received From stocks for 15 minutes.15 minute trading halt for the markets to Members, Participants, or Others The Exchange believes that by reopen before the 3:45 cut-off for entry No written comments were solicited reducing the percentage threshold, and cancellation of MOC and LOC or received with respect to the proposed coupled with the reduced length of a orders under Exchange rules. rule change. As with current Level 3 declines, III. Date of Effectiveness of the 13 The Exchange and other markets will advise via under the proposed rule, a Level 3 Trader Update the specific methodology for Market Decline would halt trading for Proposed Rule Change and Timing for publishing the daily calculations, as well as the the remainder of the trading day, Commission Action manner by which the markets will halt trading in all stocks should a Rule 7.12 trading halt be including any trading that may take Within 45 days of the date of triggered. place after 4:00 p.m., Eastern, and publication of this notice in the Federal 14 At that time, the triggers were based on would not resume until the next trading Register or within such longer period (i) absolute declines in the DJIA (350 point decrease day. as the Commission may designate up to for a Level 1 halt and 550 point decrease for a Level In addition to these proposed 90 days of such date if it finds such 2 halt). 15 Consistent with the current Rule 7.12 and changes, the Exchange proposes to add longer period to be appropriate and NYSE Arca Equities Rule 1.1(j), the proposed Rule 7.12 uses Pacific Time instead of Eastern Time. 16 See NYSE Rule 123C. 17 15 U.S.C. 78f(b)(5).

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publishes its reasons for so finding or or should the cancellation policies Arca. All comments received will be (ii) as to which the self-regulatory apply only to a Level 3 Market Decline? posted without change; the Commission organization consents, the Commission • Should some provision be made to does not edit personal identifying will: end the regular trading session if a information from submissions. You (A) By order approve or disapprove market decline suddenly occurs after should submit only information that the proposed rule change, or 3:25 p.m. but does not reach the 20% you wish to make publicly available. All (B) Institute proceedings to determine level? submissions should refer to File • whether the proposed rule change In the event of a Level 3 Market Number SR–NYSEArca–2011–68 and should be disapproved. Decline, should some provision be made should be submitted on or before for the markets to hold a closing October 25, 2011. IV. Solicitation of Comments auction? • For the Commission, by the Division of Interested persons are invited to Should the primary market have a longer period (e.g., 30 minutes) to Trading and Markets, pursuant to delegated submit written data, views, and 20 reopen trading following a Level 2 authority. arguments concerning the foregoing, Elizabeth M. Murphy, including whether the proposed Market Decline before trading resumes in other venues? Secretary. changes to the market-wide circuit • breaker regime are consistent with the In the event of a Level 3 Market [FR Doc. 2011–25519 Filed 10–3–11; 8:45 am] Act. The Commission specifically Decline, should the markets wait for the BILLING CODE 8011–01–P requests comment on the following: primary market to reopen trading in a • As discussed above, the proposed particular security on the next trading SECURITIES AND EXCHANGE rule change would narrow the day before trading in that security COMMISSION percentage market declines that would resumes? Comments may be submitted by any trigger a market-wide halt in trading. of the following methods: How would the proposed changes [Release No. 34–65437; File No. SR–BATS– interact with the existing single-stock Electronic comments 2011–038] 18 circuit breaker pilot program or, if • Use the Commission’s Internet Self-Regulatory Organizations; BATS approved, the proposed NMS Plan to comment form (http://www.sec.gov/ Exchange, Inc.; Notice of Filing of a establish a limit-up/limit-down rules/sro.shtml); or Proposed Rule Change To Modify the mechanism for individual securities? 19 • Send an e-mail to rule- • Rule for Halting Trading in All Stocks To what extent could the [email protected]. Please include File Due to Extraordinary Market Volatility concurrent triggering of single stock Number SR–NYSEArca–2011–68 on the circuit breakers in many S&P 500 Index subject line. September 28, 2011. stocks lead to difficulties in calculating Pursuant to Section 19(b)(1) of the Paper Comments the index? Would the triggering of many Securities Exchange Act of 1934 (the single stock circuit breakers in a general • Send paper comments in triplicate ‘‘Act’’),1 and Rule 19b–4 thereunder,2 market downturn cause the index to Elizabeth M. Murphy, Secretary, notice is hereby given that on calculation to become stale and thereby Securities and Exchange Commission, September 27, 2011, BATS Exchange, delay the triggering of the market-wide 100 F Street, NE., Washington, DC Inc. (the ‘‘Exchange’’ or ‘‘BATS’’) filed circuit breaker? 20549–1090. with the Securities and Exchange • Should the market-wide circuit All submissions should refer to File Commission (‘‘Commission’’) the breaker be triggered if a sufficient Number SR–NYSEArca– 2011–68. This proposed rule change as described in number of single-stock circuit breakers file number should be included on the Items I and II below, which Items have or price limits are triggered, and subject line if e-mail is used. To help the been prepared by the Exchange. The materially affect calculations of the S&P Commission process and review your Commission is publishing this notice to 500 Index? comments more efficiently, please use solicit comments on the proposed rule • Should market centers implement only one method. The Commission will change from interested persons. rules that mandate cancellation of post all comments on the Commission’s pending orders in the event a market- Internet Web site (http://www.sec.gov/ I. Self-Regulatory Organization’s wide circuit breaker is triggered? If so, rules/sro.shtml). Copies of the Statement of the Terms of Substance of should such a rule require cancellation submission, all subsequent the Proposed Rule Change of all orders or only certain order types amendments, all written statements The Exchange is filing with the (e.g., limit orders)? Should all trading with respect to the proposed rule Commission a proposal to modify BATS halts trigger such cancellation policies change that are filed with the Rule 11.18, entitled ‘‘Trading Halts Due Commission, and all written to Extraordinary Market Volatility,’’ to 18 See Securities Exchange Act Release No. 64735 communications relating to the revise the current methodology for (June 23, 2011), 76 FR 38243 (June 29, 2011) (SR– proposed rule change between the determining when to halt trading in all BATS–2011–016; SR–BYX–2011–011; SR–BX– 2011–025; SR–CBOE–2011–049; SR–CHX–2011–09; Commission and any person, other than stocks due to extraordinary market SR–EDGA–2011–15; SR–EDGX–2011–14; SR– those that may be withheld from the volatility. FINRA–2011–023; SR–ISE–2011–028; SR– public in accordance with the The text of the proposed rule change NASDAQ–2011–067; SR–NYSE–2011–21; SR– provisions of 5 U.S.C. 552, will be is available at the Exchange’s Web site NYSEAmex–2011–32; SR–NYSEArca–2011–26; SR– NSX–2011–06; SR–Phlx–2011–64) (approving the available for website viewing and at http://www.batstrading.com, at the ‘‘Phase III Pilot Program’’). The Phase III Pilot printing in the Commission’s Public principal office of the Exchange, and at Program has been extended through January 2012. Reference Room, 100 F Street, NE., the Commission’s Public Reference See, e.g., Securities Exchange Act Release 65094 Washington, DC 20549, on official Room. (August 10, 2011), 76 FR 50779 (August 16, 2011) business days between the hours of 10 (SR–NASDAQ–2011–011). 19 See Securities Exchange Act Release No. 64547 a.m. and 3 p.m. Copies of such filing 20 17 CFR 200.30–3(a)(12). (May 25, 2011), 76 FR 31647 (June 1, also will be available for inspection and 1 15 U.S.C. 78s(b)(1). 2011). copying at the principal office of NYSE 2 17 CFR 240.19b–4.

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II. Self-Regulatory Organization’s existing market-wide circuit breakers. In its current form,10 the rule provides Statement of the Purpose of, and Among other things, the Committee for Level 1, 2, and 3 declines and Statutory Basis for, the Proposed Rule noted that the interrelatedness of specified trading halts following such Change today’s highly electronic markets declines. The values of Levels 1, 2 and In its filing with the Commission, the warrants the need to review the present 3 are calculated at the beginning of each Exchange included statements operation of the system-wide circuit calendar quarter, using 10%, 20% and concerning the purpose of and basis for breakers now in place. Specifically, the 30%, respectively, of the average closing the proposed rule change and discussed Committee recommended that the value of the DJIA for the month prior to any comments it received on the markets consider replacing the Dow the beginning of the quarter. Each Jones Industrial Average (‘‘DJIA’’) with percentage calculation is rounded to the proposed rule change. The text of these ® statements may be examined at the the S&P 500 Index (‘‘S&P 500’’), nearest fifty points to create the Levels’ places specified in Item IV below. The revising the 10%, 20%, and 30% trigger points. The New York Stock Exchange has prepared summaries, set decline percentages, reducing the length Exchange LLC (‘‘NYSE’’) currently forth in Sections A, B, and C below, of of trading halts, and allowing halts to be disseminates the new trigger levels 7 the most significant parts of such triggered up to 3:30 p.m. quarterly to the media and via an statements. The exchanges and FINRA have taken Information Memo and is available on into consideration the Committee’s the NYSE’s Web site.11 The values then A. Self-Regulatory Organization’s recommendations, and with some remain in effect until the next quarterly Statement of the Purpose of, and modifications, have proposed changes calculation, notwithstanding whether Statutory Basis for, the Proposed Rule to market-wide circuit breakers that the the DJIA has moved and a Level 1, 2, or Change Exchange believes will provide for a 3 decline is no longer equal to an actual 1. Purpose more meaningful measure in today’s 10%, 20%, or 30% decline in the most faster, more electronic markets, of when The Exchange proposes to amend recent closing value of the DJIA. to halt stocks on a market-wide basis as Once a Rule 11.18 market-wide circuit BATS Rule 11.18 to revise the current a result of rapid market declines. methodology for determining when to breaker is in effect, trading in all stocks halt trading in all stocks due to Background halt for the time periods specified below: extraordinary market volatility. The The market-wide halt rules currently Exchange is proposing this rule change in effect were initially adopted in Level 1 Halt in consultation with other equity, October 1988 as part of an effort by the Anytime before 2 p.m.—one hour; options, and futures markets, the securities and futures markets to At or after 2 p.m. but before 2:30 Financial Industry Regulatory implement a coordinated means to p.m.—30 minutes; Authority, Inc. (‘‘FINRA’’), and staffs of address potentially destabilizing market At or after 2:30 p.m.—trading shall the Commission and the Commodity volatility.8 Accordingly, BATS Rule continue, unless there is a Level 2 Futures Trading Commission. 11.18 provides for market-wide halts in Halt. Since May 6, 2010, when the markets trading at specified levels in order to Level 2 Halt experienced excessive volatility in an promote stability and investor Anytime before 1 p.m.—two hours; abbreviated time period, i.e., the ‘‘flash confidence during a period of At or after 1 p.m. but before 2 p.m.— crash,’’ the exchanges and FINRA have significant stress. As the Commission one hour; implemented market-wide measures noted in its approval order for the At or after 2 p.m.—trading shall halt designed to restore investor confidence current market-wide halt rule, the rule and not resume for the rest of the by reducing the potential for excessive was intended to enable market day. market volatility. Among the measures participants to establish equilibrium Level 3 Halt adopted include pilot plans for stock- between buying and selling interest and At any time—trading shall halt and 3 by-stock trading pauses and related to ensure that market participants have not resume for the rest of the day. changes to the clearly erroneous an opportunity to become aware of and Unless stocks are halted for the 4 execution rules and more stringent respond to significant price movements. remainder of the trading day, price 5 market maker quoting requirements. In Importantly, the market-wide circuit indications are disseminated during a addition, on April 5, 2011, the equities breakers were not intended to prevent Rule 11.18 market-wide trading halt for exchanges and FINRA filed a plan markets from adjusting to new price stocks that comprise the DJIA. pursuant to Rule 608 of Regulation NMS levels; rather, they provide for a speed Proposed Amendments to address extraordinary market bump for extremely rapid market volatility (the ‘‘Limit Up-Limit Down declines.9 As noted above, the Exchange, other Plan’’).6 As proposed, the Limit Up- equities, options, and futures markets, Limit Down Plan is designed to prevent 7 See Summary Report of the Committee, and FINRA propose to amend the trades in individual NMS stocks from ‘‘Recommendations Regarding Regulatory market-wide circuit breakers to take into occurring outside specified price bands. Responses to the Market Events of May 6, 2010’’ consideration the recommendations of The Joint CFTC–SEC Advisory (Feb, 18, 2011). The Exchange notes that NYSE the Committee, and to provide for more Committee on Emerging Regulatory Euronext submitted a comment letter to the Committee that recommended, among other things, meaningful measures in today’s markets Issues (‘‘Committee’’) has recommended reform of the market-wide circuit breaker rules. See that, in addition to the initiatives Letter to Elizabeth Murphy, Secretary, Commission, 10 The rule was last amended in 1998, when already adopted or proposed, the from Janet M. Kissane, SVP and Corporate declines based on specified point drops in the DJIA markets should consider reforming the Secretary, NYSE Euronext (July 19, 2010). The were replaced with the current methodology of proposed reforms set forth in this rule proposal using a percentage decline that is recalculated differ slightly from the changes recommended in quarterly. See Securities Exchange Act Release No. 3 BATS Rule 11.18(d) (under the proposal, to be that comment letter, and represent consensus 39846 (April 9, 1998), 63 FR 18477 (April 15, 1998) re-numbered as Rule 11.18(e)). among the markets of how to address reform of the (SR–NYSE–98–06, SR–Amex–98–09, SR–BSE–98– 4 BATS Rule 11.17. market-wide circuit breakers. 06, SR–CHX–98–08, SR–NASD–98–27, and SR– 5 BATS Rule 11.8(d). 8 See Securities Exchange Act Release No. 26198 Phlx–98–15). 6 See Securities Exchange Act Release No. 64547 (Oct. 19, 1988). 11 See, e.g., NYSE Regulation Information Memos (May 25, 2011), 76 FR 31647 (June 1, 2011). 9 Id. 11–19 (June 30, 2011) and 11–10 (March 31, 2011).

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of when to halt trading in all stocks. once, on October 27, 1997.13 markets both to reopen following a 30- Accordingly, the Exchange proposes to Accordingly, to reflect the potential that minute halt and to engage in a fair and amend Rule 11.18 as follows: (i) Replace a lower, yet still significant decline may orderly closing process. However, as the the DJIA with the S&P 500; (ii) replace warrant a market-wide trading halt, the markets experienced on May 6, 2010, the quarterly calendar recalculation of Exchange proposes to lower the market even if the Level 1 decline had occurred Rule 11.18 triggers with daily decline percentage thresholds. that day, because the market decline recalculations; (iii) replace the 10%, As further proposed, the Exchange occurred after 2:30 p.m., it would not 20%, and 30% market decline would halt trading based on a Level 1 have triggered a halt under the current percentages with 7%, 13%, and 20% or Level 2 Market Decline only once per rule. The Committee recommended that market decline percentages; (iv) modify day. For example, if a Level 1 Market trading halts be triggered up to 3:30 p.m. the length of the trading halts associated Decline were to occur and trading were The Exchange agrees that the proposed with each market decline level; and (v) halted, following the reopening of amendments must strike the appropriate modify the times when a trading halt trading, the Exchange would not halt balance between permitting trading may be triggered. The Exchange believes the market again unless a Level 2 halts as late in the day as feasible that these proposed amendments update Market Decline were to occur. Likewise, without interrupting the closing the rule to reflect today’s high-speed, following the reopening of trading after process. highly electronic trading market while a Level 2 Market Decline, the Exchange Accordingly, to accommodate existing still meeting the original purpose of the would not halt trading again unless a Exchange rules concerning closing market-wide trading halt rule: to ensure Level 3 Market Decline were to occur, procedures, the Exchange proposes that that market participants have an at which point, trading in all stocks the last Level 1 or Level 2 Market opportunity to become aware of and would be halted until the primary Decline trading halt should be 3:25 respond to significant price movements. listing market opens the next trading p.m., or in the case of an early First, the Exchange proposes to day. scheduled close, 12:25 p.m. replace the DJIA with the S&P 500. The Fourth, to correspond with the lower As with current Level 3 declines, Exchange believes that because the S&P percentages associated with triggering a under the proposed rule, a Level 3 500 is based on the trading prices of 500 trading halt, the Exchange also proposes Market Decline would halt trading for stocks, as compared to the 30 stocks that to shorten the length of the market-wide the remainder of the trading day, comprise the DJIA, the S&P 500 trading halts associated with each Level. including any trading that may take represents a broader base of securities As proposed, a Level 1 or 2 Market place after 4:00 p.m., and would not against which to measure whether Decline occurring after 9:30 a.m.14 and resume until the next trading day. extraordinary market-wide volatility is up to and including 3:25 p.m., or in the In addition to these proposed occurring. In addition, as noted by the case of an early scheduled close, 12:25 changes, the Exchange proposes to add Committee, using an index that p.m., would result in a trading halt in to Rule 11.18 how the markets will correlates closely with derivative all stocks for 15 minutes. reopen following a 15-minute market- products, such as the E-Mini and SPY, The Exchange believes that by wide trading halt. In particular, similar will allow for a better cross-market reducing the percentage threshold, to the reopening procedures set forth in measure of market volatility. coupled with the reduced length of a current Rule 11.18(d), the Exchange Second, the Exchange proposes to trading halt, the proposed rule would proposes that if the primary listing change the recalculation of the trigger allow for trading halts for serious market halts trading in all stocks, all values from once every calendar quarter market declines, while at the same time, markets will halt trading in those stocks to daily. The Exchange believes that would minimize disruption to the until the primary listing market has updating the trigger values daily will market by allowing for trading to resumed trading or notice has been better reflect current market conditions. continue after the proposed more- provided by the primary listing market In particular, a daily recalculation will abbreviated trading halt. The Exchange that trading may resume. As further ensure that the percentage drop triggers believes that in today’s markets, where proposed, if the primary listing market relate to current market conditions, and trading information travels in micro- does not re-open a security within 15 are not compared to what may be stale second speed, a 15-minute trading halt minutes following the end of the trading market conditions. As noted in the strikes the appropriate balance between halt, other markets may resume trading proposed rule, the daily calculations of the need to halt trading for market in that security. the trigger values will be published participants to assess the market, while before the trading day begins.12 at the same time reducing the time that 2. Statutory Basis Third, the Exchange proposes to the market is halted. The Exchange believes that its decrease the current Level 1, 2, and 3 Finally, because the proposed Level 1 proposal is consistent with the declines of 10%, 20%, and 30% to a and Level 2 trading halts will now be 15 requirements of the Act and the rules Level 1 Market Decline of 7%, a Level minutes, the Exchange proposes and regulations thereunder that are 2 Market Decline of 13%, and Level 3 amending the rule to allow for a Level applicable to a national securities Market Decline of 20%. In particular, as 1 or 2 Market Decline to trigger a trading exchange, and, in particular, with the demonstrated by the May 6, 2010 flash halt up to 3:25 p.m., or in the case of requirements of Section 6(b) of the crash, the current Level 1 10% decline an early scheduled close, 12:25 p.m. Act.15 In particular, the proposal is may be too high a threshold before Under the current rule, a trading halt consistent with Section 6(b)(5) of the determining whether to halt trading cannot be triggered after 2:30 p.m., and Act,16 because it would promote just across all securities. In fact, since this time corresponds to the need for the and equitable principles of trade, adoption, the markets have halted only remove impediments to, and perfect the 13 At that time, the triggers were based on mechanism of, a free and open market 12 The Exchange and other markets will provide absolute declines in the DJIA (350 point decrease and a national market system. notice to market participants regarding the specific for a Level 1 halt and 550 point decrease for a Level Specifically, this rule proposal supports methodology for publishing the daily calculations, 2 halt). as well as the manner by which the markets will 14 As set forth in proposed paragraph (g) to Rule halt trading in all stocks should a Rule 11.18 11.18, all times referenced in the rule and in this 15 15 U.S.C. 78f(b). market-wide trading halt be triggered. proposal are Eastern Time. 16 15 U.S.C. 78f(b)(5).

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the objectives of perfecting the approved, the proposed NMS Plan to All submissions should refer to File mechanism of a free and open market establish a limit-up/limit-down Number SR–BATS–2011–038. This file and the national market system because mechanism for individual securities?18 number should be ncluded on the it promotes uniformity across markets • To what extent could the subject line if e-mail is used. To help the concerning when and how to halt concurrent triggering of single stock Commission process and review your trading in all stocks as a result of circuit breakers in many S&P 500 Index comments more efficiently, please use extraordinary market volatility. stocks lead to difficulties in calculating only one method. The Commission will the index? Would the triggering of many post all comments on the Commission’s B. Self-Regulatory Organization’s single stock circuit breakers in a general Statement on Burden on Competition Internet Web site (http://www.sec.gov/ market downturn cause the index rules/sro.shtml). Copies of the The Exchange does not believe that calculation to become stale and thereby submission, all subsequent the proposed rule change imposes any delay the triggering of the market-wide amendments, all written statements burden on competition. circuit breaker? with respect to the proposed rule • Should the market-wide circuit C. Self-Regulatory Organization’s change that are filed with the breaker be triggered if a sufficient Statement on Comments on the Commission, and all written number of single-stock circuit breakers Proposed Rule Change Received From communications relating to the or price limits are triggered, and Members, Participants, or Others proposed rule change between the materially affect calculations of the S&P Commission and any person, other than The Exchange has neither solicited 500 Index? those that may be withheld from the nor received written comments on the • Should market centers implement public in accordance with the proposed rule change. rules that mandate cancellation of provisions of 5 U.S.C. 552, will be III. Date of Effectiveness of the pending orders in the event a market- available for Web site viewing and Proposed Rule Change and Timing for wide circuit breaker is triggered? If so, printing in the Commission’s Public Commission Action should such a rule require cancellation Reference Room, 100 F Street, NE., of all orders or only certain order types Washington, DC 20549, on official Within 45 days of the date of (e.g., limit orders)? Should all trading business days between the hours of 10 publication of this notice in the Federal halts trigger such cancellation policies a.m. and 3 p.m. Copies of such filing Register or within such longer period (i) or should the cancellation policies also will be available for inspection and As the Commission may designated up apply only to a Level 3 Market Decline? to 90 days of such date if it finds such • Should some provision be made to copying at the principal office of BATS. longer period to be appropriate and end the regular trading session if a All comments received will be posted publishes its reasons for so finding or market decline suddenly occurs after without change; the Commission does (ii) as to which the self-regulatory 3:25 p.m. but does not reach the 20% not edit personal identifying organization consents, the Commission level? information from submissions. You will: • In the event of a Level 3 Market should submit only information that (A) By order approve or disapprove Decline, should some provision be made you wish to make publicly available. All such proposed rule change, or for the markets to hold a closing submissions should refer to File (B) Institute proceedings to determine auction? Number SR–BATS–2011–038 and whether the proposed rule change • Should the primary market have a should be submitted on or before should be disapproved. longer period (e.g., 30 minutes) to October 25, 2011. IV. Solicitation of Comments reopen trading following a Level 2 For the Commission, by the Division of Market Decline before trading resumes Trading and Markets, pursuant to delegated Interested persons are invited to in other venues? authority.19 submit written data, views, and • In the event of a Level 3 Market Elizabeth M. Murphy, arguments concerning the foregoing, Decline, should the markets wait for the Secretary. including whether the proposed primary market to reopen trading in a [FR Doc. 2011–25518 Filed 10–3–11; 8:45 am] changes to the market-wide circuit particular security on the next trading BILLING CODE 8011–01–P breaker regime are consistent with the day before trading in that security Act. The Commission specifically resumes? requests comment on the following: Comments may be submitted by any • SECURITIES AND EXCHANGE As discussed above, the proposed of the following methods: COMMISSION rule change would narrow the Electronic Comments percentage market declines that would [Release No. 34–65421; File No. SR– trigger a market-wide halt in trading. • Use the Commission’s Internet NYSEAmex-2011–70] How would the proposed changes comment form (http://www.sec.gov/ interact with the existing single-stock rules/sro.shtml); or Self-Regulatory Organizations; NYSE circuit breaker pilot program17 or, if • Send an e-mail to rule- Amex LLC; Notice of Filing and [email protected]. Please include File Immediate Effectiveness of Proposed 17 See Securities Exchange Act Release No. 64735 Number SR–BATS–2011–038 on the Rule Change Amending Commentary (June 23, 2011), 76 FR 38243 (June 29, 2011) (SR– subject line. .06 to Rule 903 in Order To Simplify the BATS–2011–016; SR–BYX–2011–011; SR–BX– $1 Strike Price Program 2011–025; SR–CBOE–2011–049; SR–CHX–2011–09; Paper Comments SR–EDGA–2011–15; SR–EDGX–2011–14; SR– • September 28, 2011. FINRA–2011–023; SR–ISE–2011–028; SR– Send paper comments in triplicate NASDAQ–2011–067; SR–NYSE–2011–21; SR– to Elizabeth M. Murphy, Secretary, Pursuant to Section 19(b)(1) of the NYSEAmex–2011–32; SR–NYSEArca–2011–26; SR– Securities and Exchange Commission, Securities Exchange Act of 1934 (the NSX–2011–06; SR–Phlx–2011–64) (approving the 100 F Street, NE., Washington, DC ‘‘Act’’) 1 and Rule 19b–4 thereunder,2 ‘‘Phase III Pilot Program’’). The Phase III Pilot Program has been extended through January 2012. 20549–1090. See, e.g., Securities Exchange Act Release 65094 19 17 CFR 200.30–3(a)(12). (August 10, 2011), 76 FR 50779 (August 16, 2011) 18 See Securities Exchange Act Release No. 64547 1 15 U.S.C.78s(b)(1). (SR–NASDAQ–2011–011). (May 25, 2011), 76 FR 31647 (June 1, 2011). 2 17 CFR 240.19b–4.

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notice is hereby given that, on were not permitted within $0.50 of an below the price of the underlying September 26, 2011, NYSE Amex LLC existing strike. In addition, the stock.8 (the ‘‘Exchange’’ or ‘‘NYSE Amex’’) filed Exchange was limited to selecting five o However, the above restriction with the Securities and Exchange (5) classes and reciprocal listing was would not prohibit the listing of at least Commission (the ‘‘Commission’’) the permitted. Furthermore, Long-Term five (5) strike prices above and below proposed rule change as described in Equity Option Series (‘‘LEAPS’’) in $1 the price of the underlying stock per Items I and II below, which Items have strike price intervals were not permitted expiration month in an option class.9 been prepared by the Exchange. The for classes selected to participate in the Æ For example, if the price of the Commission is publishing this notice to Program. underlying stock is $2, the Exchange solicit comments on the proposed rule The Exchange renewed the pilot would be permitted to list the following change from interested persons. program on a yearly basis and, in 2008, series: $1, $2, $3, $4, $5, $6 and $7.10 • When the price of the underlying I. Self-Regulatory Organization’s the Commission granted permanent 4 stock is greater than $20, permit $1 Statement of the Terms of Substance of approval of the Program. At that time, the Proposed Rule Change the Program was expanded to increase strike price intervals with an exercise the upper limit of the permissible strike price up to 50% above and 50% below The Exchange proposes to amend price range from $20 to $50. In addition, the price of the underlying security up Commentary .06 to Rule 903 in order to 11 the number of class selections per to $50. simplify the $1 Strike Price Program. • exchange was increased from five (5) to For the purpose of adding strikes The text of the proposed rule change is ten (10). under the Program, the ‘‘price of the available on the Exchange’s Web site at underlying stock’’ shall be measured in http://www.nyse.com, at the Exchange’s Since the Program was made permanent, the number of class the same way as ‘‘the price of the principal office, on the Commission’s underlying security’’ is, as set forth in website at http://www.sec.gov, and at selections per exchange has been 12 increased from ten (10) classes to 55 Rule 903A(b)(1). the Commission’s Public Reference • Prohibit the listing of additional classes5 and subsequently increased Room. series in $1 strike price intervals if the from 55 classes to 150 classes.6 underlying stock closes at or above $50 II. Self-Regulatory Organization’s The most recent expansion of the Statement of the Purpose of, and in its primary market and provide that Program was approved by the additional series in $1 strike price Statutory Basis for, the Proposed Rule Commission in early 2011 and increased Change intervals may not be added until the the number of $1 strike price intervals underlying stock closes again below 7 In its filing with the Commission, the permitted within the $1 to $50 range. $50.13 self-regulatory organization included Amendments To Simplify Non- statements concerning the purpose of LEAPS Rule Text Amendments To Simplify LEAPS Rule Text and basis for the proposed rule change These numerous expansions have and discussed any comments it received resulted in very lengthy rule text that The early 2011 expansion of the on the proposed rule change. The text the Exchange believes is complicated Program permitted for some limited of those statements may be examined at and difficult to understand. The listing of LEAPS in $1 strike price the places specified in Item IV below. Exchange believes that the proposed intervals for classes that participate in The Exchange has prepared summaries, changes to simplify the rule text of the set forth in sections A, B, and C below, Program would benefit market 8 See proposed new paragraph (b)(i) to of the most significant parts of such participants since the Program will be Commentary .06 to Rule 903. 9 statements. easier to understand and would Id. 10 Id. A. Self-Regulatory Organization’s maintain the expansions made to the 11 See proposed new paragraph (b)(ii) to Statement of the Purpose of, and Program, including those in early 2011. Commentary .06 to Rule 903. Statutory Basis for, the Proposed Rule Through the current proposal, the 12 See proposed new paragraph (b)(iii) to Change Exchange also hopes to make Commentary .06 to Rule 903. Rule 903A(b)(1) administration of the Program easier, provides, ‘‘[t]he price of the underlying security is 1. Purpose measured by: (1) For intra-day add-on series and e.g., system programming efforts. To next-day series additions, the daily high and low of The Exchange is proposing to amend simplify the rules of the Program and, all prices reported by all national securities Commentary .06 to Rule 903 in order to as a proactive attempt to mitigate any exchanges; (2) for new expiration months, the daily simplify the $1 Strike Price Program unintentional listing of improper high and low of all prices reported by all national securities exchanges on the day the Exchange (‘‘Program’’). strikes, the Exchange is proposing the determines its preliminary notification of new In 2003, the Commission issued an following streamlining amendments: series; and (3) for options series to be added as a order permitting the Exchange to • When the price of the underlying result of pre-market trading, the most recent share 3 price reported by all national securities exchanges establish the Program on a pilot basis. stock is equal to or less than $20, permit At that time, the underlying stock had between 8:45 a.m. and 9:30 a.m. Eastern Time.’’ $1 strike price intervals with an exercise 13 See proposed new paragraph (b)(iv) to to close at or below $20 on the previous price up to 100% above and 100% Commentary .06 to Rule 903. The Exchange trading day in order to qualify for the believes that it is important to codify this additional Program. The range of available $1 series criterion because there have been conflicting 4 See Securities Exchange Act Release No. 57110 strike price intervals was limited to a interpretations among the exchanges that have (January 8, 2008), 73 FR 2292 (January 14, 2008) adopted similar programs. The $50 price criterion range between $3 and $20 and no strike (SR–Amex-2007–141). for additional series was intended when the price was permitted that was greater 5 See Securities Exchange Act Release No. 59587 Program was originally established (as a pilot) in than $5 from the underlying stock’s (March 17, 2009), 74 FR 12414 (March 24, 2009) 2003. See supra note 4 (‘‘Amex will list an closing price on the previous trading (SR–NYSEALTR–2009–11). additional expiration month upon expiration of the 6 See Securities Exchange Act Release No. 62449 near-term month, provided that the underlying day. Series in $1 strike price intervals (July 2, 2010), 75 FR 40012 (July 13, 2010) (SR– stock prices closes below $20 on Expiration Friday. NYSEAmex-2010–67). If the underlying closes at or above $20 on its 3 See Securities Exchange Act Release No. 48024 7 See Securities Exchange Act Release No. 63773 primary market on Expiration Friday, the Exchange (June 12, 2003), 68 FR 36617 (June 18, 2003) (SR– (January 25, 2011), 76 FR 5646 (February 1, 2011) will not list an additional month of $1 strike price Amex-2003–36). (SR–NYSEAmex-2010–109). series until the stock again closes below $20.’’).

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the Program. The Exchange is proposing Price Interval Program’’ and by adding filed, or such shorter time as the to maintain the expansion as to LEAPS, the phrase ‘‘price interval.’’ Commission may designate, it has but simplify the language and provide The Exchange proposes to reorganize become effective pursuant to Section examples of the simplified rule text. current paragraphs (c) through (f) of 19(b)(3)(A) of the Act17 and Rule 19b- These changes are set forth in proposed Commentary .06 to Rule 903 and 4(f)(6) thereunder.18 new paragraph (b)(v) to Commentary .06 portions of the Delisting Policy therein The Exchange has requested that the to Rule 903. in order to better organize Commentary Commission waive the 30-day operative For stocks in the Program, the .06. This would include moving current delay. The Commission believes that Exchange may list one $1 strike price paragraph (d) out of Commentary .06 waiver of the operative delay is interval between each standard $5 strike and instead including the text as new consistent with the protection of price interval, with the $1 strike price Commentary .13 to Rule 903. investors and the public interest interval being $2 above the standard Lastly, the Exchange is making because the proposal is substantially strike for each interval above the price technical changes to Commentary .06 to similar to that of another exchange that of the underlying stock, and $2 below Rule 903, e.g., replacing the word has been approved by the the standard strike for each interval ‘‘security’’ with the word ‘‘stock.’’ Commission.19 Therefore, the below the price of the underlying stock The Exchange represents that it has Commission designates the proposal (‘‘$2 wings’’). For example, if the price the necessary systems capacity to operative upon filing.20 of the underlying stock is $24.50, the support the increase in new options At any time within 60 days of the Exchange may list the following series that would result from the filing of the proposed rule change, the standard strikes in $5 intervals: $15, proposed streamlining changes to the Commission summarily may $20, $25, $30 and $35. Between these Program. temporarily suspend such rule change if standard $5 strikes, the Exchange may it appears to the Commission that such 2. Statutory Basis list the following $2 wings: $18, $27 and action is necessary or appropriate in the $32.14 The Exchange believes that the public interest, for the protection of In addition, the Exchange may list the proposed rule change is consistent with investors, or otherwise in furtherance of $1 strike price interval which is $2 Section 6(b) of the Act,15 in general, and the purposes of the Act. If the above the standard strike just below the furthers the objectives of Section 6(b)(5) Commission takes such action, the underlying price at the time of listing. of the Act,16 in particular, because it is Commission shall institute proceedings In the above example, since the designed to promote just and equitable to determine whether the proposed rule standard strike just below the principles of trade, remove should be approved or disapproved. underlying price ($24.50) is $20, the impediments to and perfect the Exchange may list a $22 strike. The mechanisms of a free and open market IV. Solicitation of Comments Exchange may add additional LEAP and a national market system and, in Interested persons are invited to strikes as the price of the underlying general, to protect investors and the submit written data, views, and stock moves, consistent with the public interest. In particular, the arguments concerning the foregoing, Options Listing Procedures Plan proposed rule change seeks to reduce including whether the proposed rule (‘‘OLPP’’). investor confusion and to simplify the change is consistent with the Act. Non-Substantive Amendments to Rule provisions of the $1 Strike Price Interval Comments may be submitted by any of Text Program. the following methods: The early 2011 expansion of the B. Self-Regulatory Organization’s Electronic Comments Program prohibited the listing of $2.50 Statement on Burden on Competition • Use the Commission’s Internet strike price intervals for classes that The Exchange does not believe that comment form (http://www.sec.gov/ participate in the Program. This the proposed rule change will impose rules/sro.shtml); or prohibition applies to non-LEAPS and any burden on competition that is not • Send an e-mail to rule- LEAPS. The Exchange proposes to necessary or appropriate in furtherance [email protected]. Please include File maintain this prohibition and codify it of the purposes of the Act. Number SR–NYSEAmex–2011–70 on in paragraph (a) to Commentary .06 to the subject line. Rule 903 (Program Description). C. Self-Regulatory Organization’s For ease of reference, the Exchange is Statement on Comments on the Paper Comments proposing to add the headings ‘‘Program Proposed Rule Change Received From • Send paper comments in triplicate Description,’’ ‘‘Initial and Additional Members, Participants, or Others to Elizabeth M. Murphy, Secretary, Series’’ and ‘‘LEAPS’’ to Commentary No written comments were solicited Securities and Exchange Commission, .06 to Rule 903. or received with respect to the proposed The Exchange is proposing to more rule change. 17 15 U.S.C. 78s(b)(3)(A). accurately reflect the nature of the 18 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– Program and is proposing to make III. Date of Effectiveness of the 4(f)(6)(iii) requires the Exchange to give the stylistic changes throughout Proposed Rule Change and Timing for Commission written notice of the Exchange’s intent Commission Action to file the proposed rule change, along with a brief Commentary .06 to Rule 903 by description and text of the proposed rule change, renaming the Program ‘‘The $1 Strike Because the foregoing proposed rule at least five business days prior to the date of filing change does not significantly affect the of the proposed rule change, or such shorter time 14 as designated by the Commission. The Exchange The Exchange notes that a $2 wing is not protection of investors or the public permitted between the standard $20 and $25 strikes has satisfied the five-day prefiling requirement. in the above example. This is because the $2 wings interest, does not impose any significant 19 See Securities Exchange Act Release No. 65383 are added based on reference to the price of the burden on competition, and, by its (September 22, 2011) (SR–CBOE–2011–040) (order underlying and as being between the standard terms, does not become operative for 30 approving proposed rule change to simplify the $1 strikes above and below the price of the underlying days from the date on which it was Strike Price Interval Program). stock. Since the price of the underlying stock 20 For purposes only of waiving the 30-day ($24.50) straddles the standard strikes of $20 and operative delay, the Commission has considered the $25, no $2 wing is permitted between these 15 15 U.S.C. 78f(b). proposed rule’s impact on efficiency, competition, standard strikes. 16 15 U.S.C. 78f(b)(5). and capital formation. See 15 U.S.C. 78c(f).

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100 F Street, NE., Washington, DC Restructuring Act of 1998 (112 Stat. Dated: September 27, 2011. 20549–1090. 2681, et seq.; 22 U.S.C. 6501 note, et Thomas R. Nides, All submissions should refer to File seq.), Delegation of Authority No. 234 of Deputy Secretary of State for Management Number SR–NYSEAmex–2011–70. This October 1, 1999, and Delegation of and Resources. file number should be included on the Authority No. 236–3 of August 28, 2000 [FR Doc. 2011–25535 Filed 10–3–11; 8:45 am] subject line if e-mail is used. To help the (and, as appropriate, Delegation of BILLING CODE 4710–05–P Commission process and review your Authority No. 257 of April 15, 2003), I comments more efficiently, please use hereby determine that the objects to be only one method. The Commission will included in the exhibition ‘‘The Game OFFICE OF THE UNITED STATES post all comments on the Commission’s of Kings: Medieval Ivory Chessmen from TRADE REPRESENTATIVE Internet Web site (http://www.sec.gov/ the Isle of Lewis,’’ imported from abroad rules/sro.shtml). Copies of the for temporary exhibition within the Revised Fiscal Year 2011 Tariff-Rate submission, all subsequent United States, are of cultural Quota Allocations for Refined Sugar amendments, all written statements significance. The objects are imported with respect to the proposed rule pursuant to a loan agreement with the AGENCY: Office of the United States change that are filed with the foreign owner or custodian. I also Trade Representative. Commission, and all written determine that the exhibition or display ACTION: Notice. communications relating to the of the exhibit objects at the Metropolitan SUMMARY: The Office of the United proposed rule change between the Museum of Art, New York, New York, States Trade Representative (USTR) is Commission and any person, other than from on or about November 14, 2011, providing notice of additional country- those that may be withheld from the until on or about April 22, 2012, and at by-country allocations of the fiscal year public in accordance with the possible additional exhibitions or (FY) 2011 in-quota quantity of the tariff- provisions of 5 U.S.C. 552, will be venues yet to be determined, is in the rate quota (TRQ) for imported refined available for Web site viewing and national interest. I have ordered that sugar for entry through November 30, printing in the Commission’s Public Public Notice of these Determinations 2011. Reference Room, 100 F Street, NE., be published in the Federal Register. Washington, DC 20549, on official DATES: Effective Date: October 4, 2011. FOR FURTHER INFORMATION CONTACT: For business days between the hours of 10 ADDRESSES: Inquiries may be mailed or further information, including a list of a.m. and 3 p.m. Copies of such filing delivered to Ann Heilman-Dahl, the exhibit objects, contact Paul W. also will be available for inspection and Director of Agricultural Affairs, Office of Manning, Attorney-Adviser, Office of copying at the principal office of the Agricultural Affairs, Office of the United the Legal Adviser, U.S. Department of Exchange. All comments received will States Trade Representative, 600 17th State (telephone: 202–632–6469). The be posted without change; the Street, NW., Washington, DC 20508. mailing address is U.S. Department of Commission does not edit personal FOR FURTHER INFORMATION CONTACT: Ann identifying information from State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505. Heilman-Dahl, Office of Agricultural submissions. You should submit only Affairs, telephone: 202–395–6127 or information that you wish to make Dated: September 27, 2011. facsimile: 202–395–4579. publicly available. All submissions J. Adam Ereli, SUPPLEMENTARY INFORMATION: Pursuant should refer to File Number SR– Principal Deputy Assistant Secretary, Bureau to Additional U.S. Note 5 to chapter 17 NYSEAmex–2011–70 and should be of Educational and Cultural Affairs, of the Harmonized Tariff Schedule of submitted on or before October 25, Department of State. the United States (HTS), the United 2011. [FR Doc. 2011–25534 Filed 10–3–11; 8:45 am] States maintains a tariff-rate quota for For the Commission, by the Division of BILLING CODE 4710–05–P imports of refined sugar. Trading and Markets, pursuant to delegated Section 404(d)(3) of the Uruguay authority.21 Round Agreements Act (19 U.S.C. Elizabeth M. Murphy, DEPARTMENT OF STATE 3601(d)(3)) authorizes the President to Secretary. allocate the in-quota quantity of a TRQ [FR Doc. 2011–25477 Filed 10–3–11; 8:45 am] [Public Notice: 7633] for any agricultural product among BILLING CODE 8011–01–P supplying countries or customs areas. Determination Pursuant to Section The President delegated this authority 2121(h) of the Full-Year Continuing to the USTR under Presidential Appropriations Act, 2011, Relating to DEPARTMENT OF STATE Proclamation 6763 (60 FR 1007). Foreign Military Financing for Lebanon On August 5, 2010, the Secretary of [Public Notice: 7634] Agriculture established the FY 2011 Pursuant to Section 2121(h) of the (October 1, 2010—September 30, 2011) Culturally Significant Objects Imported Full-Year Continuing Appropriations refined sugar TRQ at an aggregate for Exhibition Act, 2011 (Div. B, Pub. L. 112–10) (CR), quantity of 99,111 MTRV, of which Determinations: ‘‘The Game of Kings: I hereby determine that provision of 20,344 MTRV was refined sugar other Medieval Ivory Chessmen From the Isle $74,850,000 in Foreign Military than specialty sugar. On August 17, of Lewis’’ Financing funds appropriated by the CR 2010, USTR allocated this refined sugar SUMMARY: Notice is hereby given of the for assistance for Lebanon is in the as follows: 10,300 MTRV to Canada; following determinations: Pursuant to national security interest of the United 2,954 MTRV to Mexico; and 7,090 the authority vested in me by the Act of States. MTRV to be administered on a first- October 19, 1965 (79 Stat. 985; 22 U.S.C. This determination shall be published come, first-served basis. On August 2, 2459), Executive Order 12047 of March in the Federal Register and copies shall 2011, the Secretary of Agriculture 27, 1978, the Foreign Affairs Reform and be provided to the Congress together increased the FY 2011 specialty sugar with the accompanying Memorandum TRQ by 9,072 MTRV, resulting in a FY 21 17 CFR 200.30–3(a)(12). of Justification. 2011 specialty sugar TRQ of 87,839

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MTRV and a FY 2011 refined sugar TRQ 2011–0728 using any of the following (CPDLC) prior to the availability of of 108,183 MTRV. methods: datalink recording software from On September 29, 2011, the Secretary • Government-wide rulemaking Web Gulfstream that enables the capability of of Agriculture announced an increase in site: Go to http://www.regulations.gov recording data link communications. the FY 2011 refined sugar TRQ of and follow the instructions for sending [FR Doc. 2011–25585 Filed 10–3–11; 8:45 am] 136,078 MTRV, to a total of 244,261 your comments electronically. BILLING CODE 4910–13–P MTRV, none of which is reserved for • Mail: Send comments to the Docket specialty sugars. This addition to the Management Facility; U.S. Department refined sugar TRQ will open on of Transportation, 1200 New Jersey DEPARTMENT OF TRANSPORTATION September 29, 2011, and may be entered Avenue, SE., West Building Ground until November 30, 2011. This sugar Floor, Room W12–140, Washington, DC Federal Aviation Administration must have a sucrose content, by weight 20590. [Summary Notice No. PE–2011–36] in the dry state, corresponding to a • Fax: Fax comments to the Docket polarimeter reading of 99.5 degrees or Management Facility at 202–493–2251. • Petition for Exemption; Summary of more. 25,000 MTRV is being allocated to Hand Delivery: Bring comments to Petition Received Canada, increasing Canada’s allocation the Docket Management Facility in from 10,300 to 35,300 MTRV. The Room W12–140 of the West Building AGENCY: Federal Aviation remaining 111,078 MTRV of the Ground Floor at 1200 New Jersey Administration (FAA), DOT. increased in-quota quantity may be Avenue, SE., Washington, DC, between ACTION: Notice of petition for exemption supplied by any country on a first-come, 9 a.m. and 5 p.m., Monday through received. first-served basis, subject to any other Friday, except Federal holidays. provision of law, which raises the first- Privacy: We will post all comments SUMMARY: This notice contains a come, first-served in-quota quantity we receive, without change, to http:// summary of a petition seeking relief from 7,090 to 118,168 MTRV. The www.regulations.gov, including any from specified requirements of title 14 certificate of quota eligibility is required personal information you provide. CFR. The purpose of this notice is to for sugar entering under the TRQ for Using the search function of our docket improve the public’s awareness of, and refined sugar that is the product of a Web site, anyone can find and read the participation in, this aspect of FAA’s country that has been allocated a share comments received into any of our regulatory activities. Neither publication of the tariff-rate quota for refined sugar. dockets, including the name of the of this notice nor the inclusion or * Conversion factor: 1 metric ton = individual sending the comment (or omission of information in the summary 1.10231125 short tons. signing the comment for an association, is intended to affect the legal status of business, labor union, etc.). You may the petition or its final disposition. Ronald Kirk, review DOT’s complete Privacy Act DATES: Comments on this petition must United States Trade Representative. Statement in the Federal Register identify the petition docket number and [FR Doc. 2011–25555 Filed 10–3–11; 8:45 am] published on April 11, 2000 (65 FR must be received on or before BILLING CODE 3190–W1–P 19477–78). October 24, 2011. Docket: To read background ADDRESSES: You may send comments documents or comments received, go to identified by Docket Number FAA– DEPARTMENT OF TRANSPORTATION http://www.regulations.gov at any time 2011–0824 using any of the following or to the Docket Management Facility in methods: Federal Aviation Administration Room W12–140 of the West Building • Government-wide rulemaking Web Ground Floor at 1200 New Jersey [Summary Notice No. PE–2011–38] site: Go to http://www.regulations.gov Avenue, SE., Washington, DC, between and follow the instructions for sending Petition for Exemption; Summary of 9 a.m. and 5 p.m., Monday through your comments electronically. Petition Received Friday, except Federal holidays. • Mail: Send comments to the Docket FOR FURTHER INFORMATION CONTACT: Management Facility; U.S. Department AGENCY: Federal Aviation Keira Jones (202) 267–4024, Tyneka of Transportation, 1200 New Jersey Administration (FAA), DOT. Thomas (202) 267–7626, or David Avenue, SE., West Building Ground ACTION: Notice of petition for exemption Staples (202) 267–4058, Office of Floor, Room W12–140, Washington, DC received. Rulemaking, Federal Aviation 20590. Administration, 800 Independence • Fax: Fax comments to the Docket SUMMARY: This notice contains a Avenue, SW., Washington, DC 20591. Management Facility at 202–493–2251. summary of a petition seeking relief This notice is published pursuant to • Hand Delivery: Bring comments to from specified requirements of 14 CFR. 14 CFR 11.85. the Docket Management Facility in The purpose of this notice is to improve Issued in Washington, DC, on Room W12–140 of the West Building the public’s awareness of, and September 29, 2011. Ground Floor at 1200 New Jersey participation in, this aspect of FAA’s Dennis R. Pratte, Avenue, SE., Washington, DC, between regulatory activities. Neither publication Acting Director, Office of Rulemaking. 9 a.m. and 5 p.m., Monday through of this notice nor the inclusion or Friday, except Federal holidays. omission of information in the summary Petition for Exemption Privacy: We will post all comments is intended to affect the legal status of Docket No.: FAA–2011–0728. we receive, without change, to http:// the petition or its final disposition. Petitioner: Landmark Aviation. www.regulations.gov, including any DATES: Comments on this petition must Section of 14 CFR Affected: 14 CFR personal information you provide. identify the petition docket number 135.151. Using the search function of our docket involved and must be received on or Description of Relief Sought: Web site, anyone can find and read the before October 24, 2011. Landmark Aviation has requested relief comments received into any of our ADDRESSES: You may send comments to allow its aircrafts to utilize Controller dockets, including the name of the identified by Docket Number FAA– Pilot Data Link Communication individual sending the comment (or

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signing the comment for an association, The purpose of this notice is to improve Issued in Washington, DC, on September business, labor union, etc.). You may the public’s awareness of, and 29, 2011. review DOT’s complete Privacy Act participation in, this aspect of FAA’s Dennis R. Pratte, Statement in the Federal Register regulatory activities. Neither publication Acting Director, Office of Rulemaking. published on April 11, 2000 (65 FR of this notice nor the inclusion or Petition for Exemption 19477–78). omission of information in the summary Docket: To read background is intended to affect the legal status of Docket No.: FAA–2011–1018. documents or comments received, go to the petition or its final disposition. Petitioner: Era Helicopter, LLC. Section of 14 CFR Affected: 14 CFR http://www.regulations.gov at any time DATES: Comments on this petition must or to the Docket Management Facility in 133.45(e)(1). identify the petition docket number Description of Relief Sought: Era Room W12–140 of the West Building involved and must be received on or Helicopter requests relief to conduct Ground Floor at 1200 New Jersey before October 24, 2011. Class D Rotorcraft External Load Avenue, SE., Washington, DC, between ADDRESSES: You may send comments Operations with exemption relief from 9 a.m. and 5 p.m., Monday through identified by Docket Number FAA– that portion 14 CFR 133(e)(1) requiring; Friday, except Federal holidays. 2011–1018 using any of the following ‘‘The rotorcraft to be used must have FOR FURTHER INFORMATION CONTACT: methods: been type certificated under transport David Staples, 202–267–4058, Keira • Government-wide rulemaking Web Category A for the operating weight and Jones, 202–267–4025, or Tyneka L. site: Go to http://www.regulations.gov provide hover capability with one Thomas, 202–267–7626, Office of and follow the instructions for sending engine inoperative at that operating Rulemaking, Federal Aviation your comments electronically. weight and altitude.’’. The request for • Administration, 800 Independence Mail: Send comments to the Docket relief is specifically related to relief Avenue, SW., Washington, DC 20591. Management Facility; U.S. Department from the ‘‘* * * hover capability with This notice is published pursuant to of Transportation, 1200 New Jersey one engine inoperative * * *’’ 14 CFR 11.85. Avenue, SE., West Building Ground requirement. Floor, Room W12–140, Washington, DC Issued in Washington, DC, on September [FR Doc. 2011–25593 Filed 10–3–11; 8:45 am] 29, 2011. 20590. • BILLING CODE 4910–13–P Dennis R. Pratte, Fax: Fax comments to the Docket Management Facility at 202–493–2251. Acting Director, Office of Rulemaking. • Hand Delivery: Bring comments to DEPARTMENT OF TRANSPORTATION Petition for Exemption the Docket Management Facility in Docket No.: FAA–2011–0824. Room W12–140 of the West Building Federal Aviation Administration Petitioner: American Eurocopter. Ground Floor at 1200 New Jersey Section of 14 CFR Affected: 14 CFR 60 Avenue, SE., Washington, DC, between Public Notice For Waiver of Table C2A, paragraph 4.b.3. 9 a.m. and 5 p.m., Monday through Aeronautical Land-Use Assurance; Description of Relief Sought: Friday, except Federal holidays. Indianapolis International Airport, American Eurocopter is seeking relief Privacy: We will post all comments Indianapolis, IN we receive, without change, to http:// from the requirement that any geometric AGENCY: www.regulations.gov, including any Federal Aviation error between the image generator eye Administration, DOT. point and the pilot eye point must be 8 personal information you provide. Using the search function of our docket ACTION: Notice of intent of waiver with degrees or less for the EC175 Level D respect to land. FFS currently being designed. American web site, anyone can find and read the Eurocopter requests that a geometric comments received into any of our SUMMARY: The Federal Aviation error of 10 to 12 degrees be allowed dockets, including the name of the Administration (FAA) is considering a subject to justification and agreement individual sending the comment (or proposal to change a portion of the with the National Simulator Program signing the comment for an association, airport from aeronautical use to non- Manager (NSPM) in accordance with business, labor union, etc.). You may aeronautical use and to authorize the helicopter characteristics and training review DOT’s complete Privacy Act release of 75.46 acres of airport property needs. Statement in the Federal Register for non-aeronautical development. The published on April 11, 2000 (65 FR land consists of portions of 11 original [FR Doc. 2011–25590 Filed 10–3–11; 8:45 am] 19477–78). BILLING CODE 4910–13–P airport acquired parcels. These parcels Docket: To read background were acquired under grants: 6–18–0038– documents or comments received, go to 10 and 6–18–0038–14 or without federal http://www.regulations.gov at any time DEPARTMENT OF TRANSPORTATION participation. The land is currently or to the Docket Management Facility in vacant. The future use of the property is Federal Aviation Administration Room W12–140 of the West Building for non-aviation development. Ground Floor at 1200 New Jersey There are no impacts to the airport by [Summary Notice No. PE–2011–43 Avenue, SE., Washington, DC, between allowing the Indianapolis Airport 9 a.m. and 5 p.m., Monday through Authority to dispose of the property. Petition for Exemption; Summary of Friday, except Federal holidays. Petition Received The land is not needed for FOR FURTHER INFORMATION CONTACT: aeronautical use. Approval does not AGENCY: Federal Aviation Keira Jones (202) 267–4024, Tyneka constitute a commitment by the FAA to Administration (FAA), DOT. Thomas (202) 267–7626, or David financially assist in the sale or lease of ACTION: Notice of petition for exemption Staples (202) 267–4058, Office of the subject airport property nor a received. Rulemaking, Federal Aviation determination of eligibility for grant-in- Administration, 800 Independence aid funding from the FAA. SUMMARY: This notice contains a Avenue, SW., Washington, DC 20591. In accordance with section 47107(h) summary of a petition seeking relief This notice is published pursuant to of title 49, United States Code, this from specified requirements of 14 CFR. 14 CFR 11.85. notice is required to be published in the

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Federal Register 30 days before seconds West 613.10 feet to a tangent Environmental Impact Statement (EIS) modifying the land-use assurance that curve to the left having a radius of will be prepared for a proposed highway requires the property to be used for an 20,040.00 feet, the radius point of which project in Walton and Bay Counties, aeronautical purpose. bears South 21 degrees 12 minutes 14 Florida. DATES: Comments must be received on seconds East; (2) thence Southwesterly FOR FURTHER INFORMATION CONTACT: Ms. or before November 3, 2011. along said curve 849.39 feet to a point Cathy Kendall, Environmental ADDRESSES: Written comments on the which bears North 23 degrees 37 Specialist, Federal Highway Sponsor’s request must be delivered or minutes 57 seconds West from said Administration, 545 John Knox Road, mailed to: Melanie Myers, Program radius point; thence North 86 degrees 06 Suite 200, Tallahassee, FL, 32303, Manager, Chicago Airports District minutes 02 seconds West 439.92 feet to Telephone (850) 553–2225 the Eastern right of way of the I–70 Off- Office, 2300 East Devon Avenue, Des SUPPLEMENTARY INFORMATION: ramp to the Midfield Terminal per The Plaines, IL 60018. FHWA, in partnership with the Florida FOR FURTHER INFORMATION CONTACT: Indiana Department of Transportation plans for said Project No. ST–70–3(Q) Department of Transportation (FDOT) Melanie Myers, Program Manager, will prepare an EIS for a proposal to Federal Aviation Administration, Great (the following twelve courses are along said Eastern right of way); (1) thence develop a new alignment extension of Lakes Region, Detroit Airports District CR 388 from SR 79 in Bay County, FL Office, CHI–ADO 609, 2300 East Devon North 29 degrees 09 minutes 48 seconds West 219.65 feet; (2) thence North 24 westward to SR 30 (US 98) in Walton Avenue, Des Plaines, IL 60018 County, FL. The FDOT refers to this Telephone Number (847–294–7525)/ degrees 52 minutes 02 seconds West 208.94 feet; (3) thence North 38 degrees project as West Bay Parkway, Segment FAX Number (847–294–7046). 1. This proposed Segment 1 project Documents reflecting this FAA action 55 minutes 00 seconds West 235.07 feet; (4) thence North 33 degrees 00 minutes would extend CR 388 to the west from may be reviewed at this same location its current western terminus at SR 79 or at Indianapolis International Airport, 23 seconds West 271.99 feet; (5) thence North 29 degrees 06 minutes 08 seconds and provide a new four-lane divided Indianapolis, Indiana. highway and potentially a new high SUPPLEMENTARY INFORMATION: West 244.10 feet; (6) thence North 20 degrees 02 minutes 46 seconds West level bridge across the Intracoastal Parcel 112 147.56 feet; (7) thence North 11 degrees Waterway (ICWW). Depending on the alternative selected, the project is A part of the Northeast Quarter, the 10 minutes 40 seconds West 127.36 feet; (8) thence North 06 degrees 26 minutes approximately 9 to 12 miles in length. Northwest Quarter, the Southwest Alternatives under consideration 54 seconds West 94.15 feet; (9) thence Quarter, and the Southeast Quarter of include (1) Taking no action; (2) North 02 degrees 09 minutes 53 seconds Section 33, Township 15 North, Range widening SR 30 (US 98) to a six or eight East 115.55 feet; (10) thence North 18 2 East, Decatur Township, Marion lane divided roadway; (3) alternate degrees 28 minutes 47 seconds East County, Indiana, more particularly corridors. 338.00 feet; (11) thence North 27 described as follows: Commencing at a Letters describing the proposed action degrees 48 minutes 50 seconds East brass disk (IAA monument 33–M) found and soliciting comments will be sent to 129.82 feet to a non-tangent curve to the at the Southeast corner of the Northwest appropriate Federal, State, and local right having a radius of 1125.00 feet, the Quarter of said Section 33; thence South agencies, and to private organizations point of which bears South 58 degrees 88 degrees 54 minutes 54 seconds West and citizens who have expressed 52 minutes 42 seconds East; (12) thence (all bearings are based on the Indiana interest in this proposal. Northeasterly along said curve 264.92 State Plane Coordinate system, East A series of public meetings in Santa feet to a point which bears North 45 Zone (NAD 83)) along the South line of Rosa Beach in Walton County, and degrees 23 minutes 10 seconds West said Northwest Quarter 164.56 feet; Panama City Beach in Bay County began from said radius point; thence North 44 thence North 01 degrees 05 minutes 06 in April 2010 and will continue to be degrees 36 minutes 50 seconds East seconds West perpendicular to the last held through December 2012. In 198.54 feet to the POINT OF described line 316.96 feet to the POINT addition a public hearing will be held. BEGINNING, containing 75.390 acres, OF BEGINNING; thence South 87 Public notice will be given for the time more or less. degrees 58 minutes 46 seconds East and place of the meetings and hearing. 138.95 feet; thence South 62 degrees 24 Issued in Des Plaines, Illinois, on September 22, 2011. The Draft EIS will be made available for minutes 14 seconds East 639.29 feet; public and agency review and comment. thence South 48 degrees 54 minutes 55 Jack Delaney, Additional project information can be seconds East 516.42 feet; thence South Acting Manager, Chicago Airports District found at the following web address: 60 degrees 57 minutes 17 seconds East Office, FAA, Great Lakes Region. http://www.westbayparkway.com. 91.32 feet; thence South 53 degrees 40 [FR Doc. 2011–25566 Filed 10–3–11; 8:45 am] To ensure that the full range of issues minutes 33 seconds West 157.81 feet; BILLING CODE 4910–13–P related to the proposed action is thence South 45 degrees 00 minutes 17 addressed and all significant issues seconds East 889.05 feet; thence South identified, comments and suggestions 45 degrees 07 minutes 10 seconds West DEPARTMENT OF TRANSPORTATION are invited from all interested parties. 116.20 feet; thence South 44 degrees 52 Comments or question concerning this minutes 50 seconds East 121.69 feet; Federal Highway Administration proposed action and the EIS should be thence North 45 degrees 07 minutes 10 Environmental Impact Statement: directed to the FHWA at the address seconds East 116.47 feet; thence South provided above. 45 degrees 00 minutes 17 seconds East Walton and Bay Counties, Florida 360.66 feet to the North right of way of (Catalog of Federal Domestic Assistance AGENCY: Federal Highway Program Number 20.205, Highway Research, I–70 per Indiana Department of Administration (FHWA), DOT. Planning and Construction. The regulations Transportation plans for Project No. ST– ACTION: Notice of intent. implementing Executive Order 12372 70–3(Q) (the following two courses are regarding inter-governmental consultation on along said North right of way); (1) SUMMARY: The FHWA is issuing this Federal programs and activities apply to this thence South 68 degrees 47 minutes 46 notice to advise the public that an program.)

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Issued on: September 27, 2011. include: Two additional general and Construction. The regulations Martin C. Knopp, purpose lanes on University Parkway implementing Executive Order 12372 Division Administrator, Tallahassee, FL . from State Street to University Avenue regarding intergovernmental consultation on in Provo, Utah; New high-occupancy/ Federal programs and activities apply to this [FR Doc. 2011–25360 Filed 10–3–11; 8:45 am] program.) BILLING CODE 4910–22–P toll (HOT) interchange at 800 South and I–15 in Orem to serve automobiles, Authority: 23 U.S.C. 139(l)(1). transit vehicles, pedestrians, and Issued on: September 26, 2011. DEPARTMENT OF TRANSPORTATION cyclists. These improvements will increase transportation capacity to James Christian, Federal Highway Administration accommodate growing population, Division Administrator, Salt Lake City. employment, student enrollment, and [FR Doc. 2011–25459 Filed 10–3–11; 8:45 am] Notice of Final Federal Agency Actions travel demand in the year 2030; improve BILLING CODE 4910–RY–P on Proposed Highway in Utah multimodal connectivity across I–15 AGENCY: Federal Highway and from I–15 to Orem and Provo, Utah. Administration (FHWA), DOT. The actions by the Federal agency, DEPARTMENT OF TRANSPORTATION and the laws under which such actions ACTION: Notice of Limitation on Claims Federal Railroad Administration for Judicial Review of Actions by were taken, are described in the FHWA. Environmental Assessment (EA) for the project, approved on April 8, 2011, in [Docket Number FRA–2011–0071] SUMMARY: This notice announces actions the FHWA Finding of No Significant Petition for Waiver of Compliance taken by the FHWA that are final within Impact (FONSI) decision issued on the meaning of 23 U.S.C. 139(l)(1). The September 6, 2011, and in other In accordance with Part 211 of Title actions relate to a proposed multi-modal documents in the FHWA project 49 of the Code of Federal Regulations project (Provo-Orem Bus Rapid Transit) records. The EA, FONSI, and other (CFR), this document provides the that addresses roadway and transit project records are available by public notice that by a document dated infrastructure needs in Utah County, contacting FHWA or the Utah August 23, 2011, the Canadian National State of Utah. Those actions grant Department of Transportation at the Railway (CN) has petitioned the Federal licenses, permits, and approvals for the addresses provided above. The FHWA Railroad Administration (FRA) for a project. EA and FONSI can be viewed at public waiver of compliance from certain DATES: By this notice, the FHWA is libraries in the project area. provisions of the Federal railroad safety advising the public of final agency This notice applies to all Federal regulations contained at 49 CFR part actions subject to 23 U.S.C. 139(l)(1). A agency decisions as of the issuance date 236. FRA assigned the petition Docket claim seeking judicial review of the of this notice and all laws under which Number FRA–2011–0071. Federal agency actions on the highway such actions were taken, including but CN seeks relief from the 2-year project will be barred unless the claim not limited to: periodic testing requirements of the is filed on or before April 1, 2012. If the 1. General: National Environmental rules, standards, and instructions Federal law that authorizes judicial Policy Act (NEPA) [42 U.S.C. 4321– contained in 49 CFR 236.377, Approach review of a claim provides a time period 4351]; Federal-Aid Highway Act [23 locking; 236.378, Time locking; 236.379, of less than 180 days for filing such U.S.C. 109 and 23 U.S.C. 128]. Route locking; 236.380, Indication claim, then that shorter time period still 2. Air: Clean Air Act [42 U.S.C. 7401– locking; 236.381, Traffic locking; and applies. 7671(q)]. 236.109, Time releases, timing relays FOR FURTHER INFORMATION CONTACT: For 3. Land: Section 4(f) of the and timing devices; on vital FHWA: Mr. Edward T. Woolford, Department of Transportation Act of microprocessor-based systems. CN Environmental Program Manager, 1966 [49 U.S.C. 303];. proposes that except when placed in Federal Highway Administration, 2520 4. Wildlife: Endangered Species Act service, disarranged, or vital software West 4700 South, Suite 9A, Salt Lake [16 U.S.C. 1531–1544 and Section modifications are made, that the City, UT 84118. FHWA’s regular 1536]; Migratory Bird Treaty Act [16 following test be completed at least once business hours are Monday through U.S.C. 703–712]. every 4 years to ensure the safety of Friday, 7:30 a.m. to 4:30 p.m. MST. For 5. Historic and Cultural Resources: microprocessor-based locking systems. UDOT: Mr. Brandon Weston, 4501 Section 106 of the National Historic These tests, at this interval, would South 2700 West, Salt Lake City, Utah Preservation Act of 1966, as amended replace the tests currently required for 84119–5998; Telephone: (801) 965– [16 U.S.C. 470(f) et seq.]; . these systems. 4603; e-mail: [email protected]. 6. Social and Economic: Civil Rights • Verify and record that the software The UDOT’s normal business hours are Act of 1964 [42 U.S.C. 2000(d)– has not changed since the previous Monday through Friday, 7 a.m. to 4:30 2000(d)(1)]; Farmland Protection Policy testing. This is accomplished by p.m. MST. Act (FPPA) [7 U.S.C. 4201–4209]. verifying the Cyclic Redundancy Code, SUPPLEMENTARY INFORMATION: Notice is 7. Executive Orders: E.O. 11990, checksum, and/or unique check number hereby given that the FHWA has taken Protection of Wetlands; E.O. 11988, (UCN) of the software in the solid-state final agency actions subject to 23 U.S.C. Floodplain Management; E.O. 12898, device. 139(l)(1) by issuing licenses, permits, Federal Actions to Address • Test and record the interconnection and approvals for the following highway Environmental Justice in Minority to the signaling hardware and project in the State of Utah: The Provo- Populations and Low Income equipment outside of the processor Orem Bus Rapid Transit project number Populations; E.O. 13175, Consultation (switch indication, switch locking, track F–R399(83). The project has roadway and Coordination with Indian Tribal circuits and indications, and searchlight and transit components. This notice Governments; E.O. 13112, Invasive signal indications). covers the roadway portions of the Species. • Verify and record duration of any selected alternative from the (Catalog of Federal Domestic Assistance variable timers unless protected by a Environmental Assessment which Program Number 20.205, Highway Planning UCN.

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The relief is requested for the Issued in Washington, DC, on September of the antitheft device for its new Audi following three cases: 28, 2011. A4 allroad vehicle line. VW will install 1. Locations as listed in Exhibit B. Robert C. Lauby, its passive, transponder-based electronic 2. All future purchases of Deputy Associate Administrator for engine immobilizer antitheft device as microprocessor-controlled interlocking Regulatory and Legislative Operations. standard equipment on its Audi A4 locations. [FR Doc. 2011–25582 Filed 10–3–11; 8:45 am] allroad vehicle line. VW stated that its 3. Interlocking sites upgraded to BILLING CODE 4910–06–P antitheft device is an electronic engine microprocessor control. immobilizer which utilizes a A copy of the petition, as well as any transponder ignition key and an alarm written communications concerning the DEPARTMENT OF TRANSPORTATION system. Key components of the antitheft petition, is available for review online at device will include a passive electronic http://www.regulations.gov and in National Highway Traffic Safety engine immobilizer, electronic ignition person at the U.S. Department of Administration lock, adapted ignition key, engine Transportation’s (DOT) Docket control unit, electronic steering column Petition for Exemption from the Operations Facility, 1200 New Jersey lock and an automatic transmission gear Vehicle Theft Prevention Standard; Ave., SE., W12–140, Washington, DC box (if available). VW stated that its Volkswagen 20590. The Docket Operations Facility vehicle line will also include an is open from 9 a.m. to 5 p.m., Monday AGENCY: National Highway Traffic antitheft alarm system as standard through Friday, except Federal holidays. Safety Administration (NHTSA), U.S. equipment. Specifically, VW stated that Interested parties are invited to Department of Transportation (DOT). when the vehicle is locked, the alarm participate in these proceedings by ACTION: Grant of petition for exemption. system monitors and protects the engine submitting written views, data, or compartment, luggage compartment and comments. FRA does not anticipate SUMMARY: This document grants in full doors, and when the system is activated, scheduling a public hearing in the Volkswagen Group of America’s the alarm will trigger if one of the doors, connection with these proceedings since (VW) petition for exemption of the Audi the engine hood or the rear hatch lid are the facts do not appear to warrant a A4 allroad vehicle line in accordance opened. Specifically, VW stated that hearing. If any interested party desires with § 543.9(c)(2) of 49 CFR part 543, when any of the protected components an opportunity for oral comment, they Exemption from the Theft Prevention within its vehicle enclosure deterrent should notify FRA, in writing, before Standard. This petition is granted, system are violated, an audible horn the end of the comment period and because the agency has determined that signal is emitted and the vehicle’s specify the basis for their request. the antitheft device to be placed on the emergency flasher system is activated. All communications concerning these line as standard equipment is likely to VW’s submission is considered a proceedings should identify the be as effective in reducing and deterring complete petition as required by 49 CFR appropriate docket number and may be motor vehicle theft as compliance with 543.7, in that it meets the general submitted by any of the following the parts-marking requirements of the requirements contained in § 543.5 and methods: Theft Prevention Standard (49 CFR part the specific content requirements of • Web site: http:// 541). § 543.6. VW stated that activation occurs www.regulations.gov. Follow the online DATES: The exemption granted by this instructions for submitting comments. notice is effective beginning with the when the key fob advanced key system is removed from the car, or when the • Fax: 202–493–2251. 2013 model year. mechanical ignition key is switched to • Mail: Docket Operations Facility, FOR FURTHER INFORMATION CONTACT: Ms. the OFF position causing lock out of the U.S. Department of Transportation, 1200 Carlita Ballard, Office of International engine control unit. VW also stated that New Jersey Avenue, SE., W12–140, Policy, Fuel Economy and Consumer deactivation of the antitheft system Washington, DC 20590. Programs, NHTSA,1200 New Jersey occurs when the mechanical ignition • Hand Delivery: 1200 New Jersey Avenue, SE., West Building, W43–439, key is switched to the ON position or Avenue, SE., Room W12–140, Washington, DC 20590. Ms. Ballard’s while the key fob advanced key is Washington, DC 20590, between 9 a.m. phone number is (202) 366–5222. Her located inside the car. VW stated that and 5 p.m., Monday through Friday, fax number is (202) 493–2990. the key transponder sends a fixed code except Federal holidays. SUPPLEMENTARY INFORMATION: In a to the immobilizer control unit, and if Communications received by petition dated August 8, 2011, VW the code is identified as the correct November 18, 2011 will be considered requested an exemption from the parts- code, a variable code is generated in the by FRA before final action is taken. marking requirements of the Theft immobilizer control unit and sent to the Comments received after that date will Prevention Standard(49 CFR part 541) transponder. VW further stated that after be considered as far as practicable. for the Audi A4 allroad vehicle line the electronic steering column is Anyone is able to search the beginning with MY 2013. The petition unlocked and there is full authorization electronic form of any written requested an exemption from parts- for the ignition switch to be on, the communications and comments marking pursuant to 49 CFR part 543, engine control unit sends a variable received into any of our dockets by the Exemption from Vehicle Theft code to the immobilizer control unit, name of the individual submitting the Prevention Standard, based on the enabling start up of the vehicle. VW comment (or signing the comment, if installation of an antitheft device as believes that the code is undecipherable submitted on behalf of an association, standard equipment for an entire because a new variable code is business, labor union, etc.). You may vehicle line. generated each time during this secret review DOT’s complete Privacy Act Under § 543.5(a), a manufacturer may computing process. Statement in the Federal Register petition NHTSA to grant an exemption In addressing the specific content published on April 11, 2000 (Volume for one vehicle line per model year. In requirements of 543.6, VW provided 65, Number 70; Pages 19477–78), or its petition, VW provided a detailed information on the reliability and online at http://www.dot.gov/ description and diagram of the identity, durability of its proposed device. To privacy.html. design and location of the components ensure reliability and durability of the

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device, VW stated that it certifies that its when compared to MY 1995 Ford made, the line must be fully marked antitheft device for the Audi A4 allroad Mustangs without an immobilizer. according to the requirements under 49 has been tested for compliance to the Based on the evidence submitted by CFR 541.5 and 541.6 (marking of major corporate requirements for electrical VW, the agency believes that the component parts and replacement and electronic assemblies in motor antitheft device for the Audi A4 allroad parts). vehicles related to performance. VW vehicle line is likely to be as effective NHTSA notes that if VW wishes in provided a detailed list of the tests in reducing and deterring motor vehicle the future to modify the device on conducted (i.e., electrical system theft as compliance with the parts- which this exemption is based, the temperature stability, mechanical marking requirements of the Theft company may have to submit a petition integrity, electrical performance, EMC, Prevention standard (49 CFR part 541). to modify the exemption. Part 543.7(d) environmental compatibility and service Pursuant to 49 U.S.C. 33106 and 49 states that a Part 543 exemption applies life) and believes that the device is CFR 543.7(b), the agency grants a only to vehicles that belong to a line reliable and durable since the device petition for exemption from the parts- exempted under this part and equipped complied with its specific requirements marking requirements of part 541 either with the anti-theft device on which the for each test. Furthermore, VW stated in whole or in part, if it determines that, line’s exemption is based. Further, Part that after the electronic module is based upon substantial evidence, the 543.9(c)(2) provides for the submission recognized by the key transponder, a standard equipment antitheft device is of petitions ‘‘to modify an exemption to pairing between the key and the likely to be as effective in reducing and permit the use of an antitheft device immobilizer occurs at which point the deterring motor vehicle theft as similar to but differing from the one key can no longer be used for any other compliance with the parts marking specified in that exemption.’’ immobilizer. requirements of part 541. The agency The agency wishes to minimize the finds that VW has provided adequate VW stated that the Audi A4 allroad administrative burden that Part reasons for its belief that the antitheft will be a new, small multipurpose 543.9(c)(2) could place on exempted device for the VW Audi A4 allroad passenger vehicle (MPV) line based on vehicle manufacturers and itself. The vehicle line is likely to be as effective the Audi A4 sedan. The Audi A4 allroad agency did not intend in drafting Part in reducing and deterring motor vehicle has no theft rate history or data 543 to require the submission of a theft as compliance with the parts- available. However, VW provided data modification petition for every change marking requirements of the Theft on the theft reduction benefits to the components or design of an Prevention Standard (49 CFR part 541). experienced by other vehicle lines antitheft device. The significance of This conclusion is based on the installed with immobilizer devices that many such changes could be de information VW provided about its minimis. Therefore, NHTSA suggests have already been granted petitions for device. exemptions by the agency. that if the manufacturer contemplates The agency concludes that the device making any changes, the effects of VW compared the device proposed for will provide the five types of its vehicle line with other devices which might be characterized as de performance listed in § 543.6(a)(3): minimis, it should consult the agency which NHTSA has determined to be as promoting activation; attracting effective in reducing and deterring before preparing and submitting a attention to the efforts of an petition to modify. motor vehicle theft as would unauthorized person to enter or move a compliance with the parts-marking vehicle by means other than a key; Authority: 49 U.S.C. 33106; delegation of requirements of the Theft Prevention preventing defeat or circumvention of authority at 49 CFR 1.50. Standard. VW stated that except for the the device by unauthorized persons; Issued on: September 28, 2011. 2004 MY, the Audi allroad MPV had a preventing operation of the vehicle by Christopher J. Bonanti, lower theft rate than its passenger car unauthorized entrants; and ensuring the Associate Administrator for Rulemaking. counterpart, Audi A6. Specifically, the reliability and durability of the device. [FR Doc. 2011–25541 Filed 10–3–11; 8:45 am] agency’s data show that theft rates for For the foregoing reasons, the agency BILLING CODE 4910–59–P the Audi A6 for MYs 2006–2008 are hereby grants in full VW’s petition for 1.8143, 1.5437 and 1.4414 respectively. exemption for the VW Audi A4 allroad Using an average of 3 MYs’ data (2006– vehicle line from the parts-marking DEPARTMENT OF THE TREASURY 2008), the theft rate for the Audi A6 is requirements of 49 CFR Part 541. The well below the median at 1.5998. VW agency notes that 49 CFR Part 541, Open Meeting of the President’s also stated that the theft rates for the Appendix A–1, identifies those lines Council on Jobs and Competitiveness Audi A4 have been near the median and that are exempted from the Theft (PCJC) based on comparison, the Audi A4 Prevention Standard for a given model allroad is expected to have a lower theft year. 49 CFR part 543.7(f) contains AGENCY: Departmental Offices, Treasury. rate. Specifically, the agency’s data publication requirements incident to the ACTION: Notice of open meeting. show that theft rates for the Audi A4 for disposition of all Part 543 petitions. SUMMARY: The President’s Council on MYs’ 2006–2008 are 1.0203, 1.2892 and Advanced listing, including the release Jobs and Competitiveness will meet on 1.1463 respectively. Using an average of of future product nameplates, the October 11, 2011, in Pittsburgh, 3 MYs’ data (2006–2008), the theft rate beginning model year for which the Pennsylvania at 12 p.m. Eastern Time. for the Audi A4 vehicle line is well petition is granted and a general The meeting will be open to the public below the median at 1.1520. VW also description of the antitheft device is via live Webcast at http:// provided data from NICB in support of necessary in order to notify law www.whitehouse.gov/live. the effectiveness of immobilizer- enforcement agencies of new vehicle installed vehicles to reduce thefts. VW lines exempted from the parts-marking DATES: The meeting will be held on stated that according to the National requirements of the Theft Prevention October 11, 2011 at 12 p.m. Eastern Insurance Crime Bureau (NICB) theft Standard. Time. statistics, MY 1997 Ford Mustangs If VW decides not to use the ADDRESSES: The PCJC will convene its installed with a standard immobilizer exemption for this line, it must formally meeting in Pittsburgh, Pennsylvania. showed a 70% reduction in theft rate notify the agency. If such a decision is The public is invited to submit written

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statements to the PCJC by any of the Webcast at http://www.whitehouse.gov/ FOR FURTHER INFORMATION CONTACT: following methods: live. The purpose of this meeting is to Requests for additional information or Electronic Statements: discuss initiatives and policies to copies should be directed to Bruce A. • Send written statements to the strengthen the economy, promote and Sharp, Bureau of the Public Debt, 200 PCJC’s electronic mailbox at accelerate job growth and bolster Third Street A4–A, Parkersburg, WV [email protected]; or America’s competitiveness around the 26106–1328, (304) 480–8150. Paper Statements: world. The President will continue the SUPPLEMENTARY INFORMATION: • Send paper statements in triplicate discussion focused on identifying to John Oxtoby, Designated Federal practical ways the government and Title: Regulations Governing United Officer, President’s Council on Jobs and business can work together to foster States Treasury Certificates Of Competitiveness, Office of the Under growth and create jobs. Due to the Indebtedness—State and Local Secretary for Domestic Finance, Room significant logistical difficulties of Government Series, United States 1325A, Department of the Treasury, convening the members of the PCJC, the Treasury Notes—State and Local 1500 Pennsylvania Avenue, NW., meeting has been scheduled with less Government Series, and United States Washington, DC 20220. than 15 days notice (see 41 CFR 102– Treasury Bonds—State and Local In general, all statements will be posted 3.150(b)). Government Series. OMB Number: 1535–0091. on the White House Web site (http:// Dated: September 26, 2011. Abstract: The information is www.whitehouse.gov) without change, Al Fitzpayne, including any business or personal requested to establish consideration for Executive Secretary, U.S. Department of the a waiver of regulations. information provided such as names, Treasury. addresses, e-mail addresses, or Current Actions: None. [FR Doc. 2011–25437 Filed 10–3–11; 8:45 am] telephone numbers. The Department BILLING CODE 4810–25–P Type of Review: Extension. will also make such statements available Affected Public: State or local for public inspection and copying in the governments. Department’s Library, Room 1428, Main DEPARTMENT OF THE TREASURY Estimated Number of Respondents: Department Building, 1500 2,000. Pennsylvania Avenue, NW., Bureau of the Public Debt Estimated Time Per Respondent: 13 Washington, DC 20220, on official minutes. business days between the hours of 10 Proposed Collection: Comment a.m. and 5 p.m. Eastern Time. You can Request Estimated Total Annual Burden make an appointment to inspect Hours: 433. statements by telephoning (202) 622– ACTION: Notice and request for Request for Comments: Comments 0990. All statements received, including comments. submitted in response to this notice will be summarized and/or included in the attachments and other supporting SUMMARY: The Department of the request for OMB approval. All materials, are part of the public record Treasury, as part of its continuing effort comments will become a matter of and subject to public disclosure. You to reduce paperwork and respondent public record. Comments are invited on: should submit only information that burden, invites the general public and (a) Whether the collection of you wish to make publicly available. other Federal agencies to take this information is necessary for the proper FOR FURTHER INFORMATION CONTACT: John opportunity to comment on proposed performance of the functions of the Oxtoby, Designated Federal Officer, and/or continuing information agency, including whether the President’s Council on Jobs and collections, as required by the information shall have practical utility; Competitiveness, Office of the Under Paperwork Reduction Act of 1995, (b) the accuracy of the agency’s estimate Secretary for Domestic Finance, Public Law 104–13 (44 U.S.C. of the burden of the collection of Department of the Treasury, Main 3506(c)(2)(A). Currently the Bureau of information; (c) ways to enhance the Department Building, 1500 the Public Debt within the Department quality, utility, and clarity of the Pennsylvania Avenue, NW., of the Treasury is soliciting comments information to be collected; (d) ways to Washington, DC 20220, at (202) 622– concerning Regulations governing U.S. minimize the burden of the collection of 2000. Treasury Securities—State and Local information on respondents, including Government Series. SUPPLEMENTARY INFORMATION: In through the use of automated collection DATES: accordance with Section 10(a) of the Written comments should be techniques or other forms of information Federal Advisory Committee Act, 5 received on or before December 7, 2011, technology; and (e) estimates of capital U.S.C. App. II, 10(a), and the regulations to be assured of consideration. or start-up costs and costs of operation, thereunder, John Oxtoby, Designated ADDRESSES: Direct all written comments maintenance, and purchase of services Federal Officer of the PCJC, has ordered to Bureau of the Public Debt, Bruce A. to provide information. publication of this notice that the PCJC Sharp, 200 Third Street A4–A, will convene its next meeting on Parkersburg, WV 26106–1328, or Dated: September 28, 2011. October 4, 2011, in Pittsburgh, [email protected]. The Bruce A. Sharp, Pennsylvania beginning at 12 p.m. opportunity to make comments online is Bureau Clearance Officer. Eastern Time. The meeting will be also available at http:// [FR Doc. 2011–25516 Filed 10–3–11; 8:45 am] broadcast on the internet via live www.pracomment.gov. 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; Endangered Status for the Alabama Pearlshell, Round Ebonyshell, Southern Sandshell, Southern Kidneyshell, and Choctaw Bean, and Threatened Status for the Tapered Pigtoe, Narrow Pigtoe, and Fuzzy Pigtoe; with Critical Habitat; Proposed Rule

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DEPARTMENT OF THE INTERIOR December 5, 2011. We must receive Therefore, we request comments or requests for public hearings, in writing, information from the public, other Fish and Wildlife Service at the address shown in the ADDRESSES concerned governmental agencies, the section by November 18, 2011. scientific community, industry, or any 50 CFR Part 17 ADDRESSES: You may submit comments other interested parties concerning this [FWS–R4–ES–2011–0050; MO 92210–0– by one of the following methods: proposed rule. We particularly seek 0008–B2] (1) Electronically: Go to the Federal comments concerning: eRulemaking Portal: http://www. (1) Biological, commercial trade, or RIN 1018–AW92 regulations.gov. In the Keyword box, other relevant data concerning any Endangered and Threatened Wildlife enter Docket No. FWS–R4–ES–2011– threats (or lack thereof) to these species and Plants; Endangered Status for the 0050, which is the docket number for and regulations that may be addressing Alabama Pearlshell, Round this rulemaking. Then, in the Search those threats. Ebonyshell, Southern Sandshell, panel on the left side of the screen, (2) Additional information concerning Southern Kidneyshell, and Choctaw under the Document Type heading, the historical and current status, range, Bean, and Threatened Status for the click on the Proposed Rules link to distribution, and population size of any Tapered Pigtoe, Narrow Pigtoe, and locate this document. You may submit of these species, including the locations Fuzzy Pigtoe; With Critical Habitat a comment by clicking on ‘‘Send a of any additional populations. Comment or Submission.’’ (3) Any information on the biological AGENCY: Fish and Wildlife Service, (2) By hard copy: Submit by U.S. mail or ecological requirements of these Interior. or hand-delivery to: Public Comments species, and ongoing conservation ACTION: Proposed rule. Processing, Attn: FWS–R4–ES–2011– measures for the species and their 0050; Division of Policy and Directives habitat. SUMMARY: We, the U.S. Fish and Management; U.S. Fish and Wildlife (4) Current or planned activities in the Wildlife Service, propose to list the Service; 4401 N. Fairfax Drive, MS areas occupied by these species and Alabama pearlshell (Margaritifera 2042–PDM; Arlington, VA 22203. possible impacts of these activities on marrianae), round ebonyshell We will not accept e-mail or faxes. We these species. (Fusconaia rotulata), southern sandshell will post all comments on http://www. (Hamiota australis), southern (5) The reasons why we should or regulations.gov. This generally means kidneyshell (Ptychobranchus jonesi), should not designate habitat as ‘‘critical that we will post any personal and Choctaw bean (Villosa habitat’’ under section 4 of the Act (16 information you provide us (see the choctawensis) as endangered, and the U.S.C. 1531 et seq.) including whether Public Comments section below for tapered pigtoe (Fusconaia burkei), there are threats to these species from more information). narrow pigtoe (Fusconaia escambia), human activity, the degree of which can and fuzzy pigtoe (Pleurobema FOR FURTHER INFORMATION CONTACT: Don be expected to increase due to the strodeanum) as threatened, under the Imm, Field Supervisor, U.S. Fish and designation, and whether that increase Endangered Species Act of 1973, as Wildlife Service, Panama City, FL, Fish in threat outweighs the benefit of amended (Act). and Wildlife Office, 1601 Balboa designation such that the designation of These eight species are endemic to Avenue, Panama City, FL 32405; critical habitat may not be prudent. portions of the Escambia River, Yellow telephone 850–769–0552; facsimile (6) Specific information on: River, and Choctawhatchee River basins 850–763–2177. If you use a (a) The amount and distribution of of Alabama and Florida; and to telecommunications device for the deaf habitat for these eight mussels; localized portions of the Mobile River (TDD), call the Federal Information (b) What areas, that were occupied at Basin in Alabama. These mussel species Relay Service (FIRS) at 800–877–8339. the time of listing (or are currently have disappeared from other portions of SUPPLEMENTARY INFORMATION: This occupied) and that contain features their natural ranges primarily due to document consists of: (1) A proposed essential to the conservation of these habitat deterioration and poor water rule to list the Alabama pearlshell species, should be included in the quality as a result of excessive (Margaritifera marrianae), round designation and why; sedimentation and environmental ebonyshell (Fusconaia rotulata), (c) Special management contaminants. southern sandshell (Hamiota australis), considerations or protection that may be We are also proposing to designate southern kidneyshell (Ptychobranchus needed in critical habitat areas we are critical habitat under the Act for these jonesi), and Choctaw bean (Villosa proposing, including managing for the eight species. In total, approximately choctawensis) as endangered, and the potential effects of climate change; and 2,406 (kilometers (km) (1,495) miles tapered pigtoe (Fusconaia burkei), (d) What areas not occupied at the (mi)) of stream and river channels fall narrow pigtoe (Fusconaia escambia), time of listing are essential for the within the boundaries of the proposed and fuzzy pigtoe (Pleurobema conservation of these species and why. critical habitat designation. The strodeanum) as threatened; and (2) (7) Land use designations and current proposed critical habitat is located in proposed critical habitat designations or planned activities in the subject areas Bay, Escambia, Holmes, Jackson, for the Alabama pearlshell, round and their possible impacts on proposed Okaloosa, Santa Rosa, Walton, and ebonyshell, southern sandshell, critical habitat. Washington Counties, FL; and Barbour, southern kidneyshell, Choctaw bean, (8) Information on the projected and Bullock, Butler, Coffee, Conecuh, tapered pigtoe, narrow pigtoe, and fuzzy reasonably likely impacts of climate Covington, Crenshaw, Dale, Escambia, pigtoe. change on these species and proposed Geneva, Henry, Houston, Monroe, and critical habitat. Pike Counties, Alabama. Information Requested (9) Any probable economic, national These proposals, if made final, would We intend that any final action security, or other relevant impacts of implement Federal protection provided resulting from this proposed rule will be designating any area that may be by the Act. based on the best scientific and included in the final designation; in DATES: We will accept comments commercial data available and be as particular, any impacts on small entities received or postmarked on or before accurate and as effective as possible. or families, and the benefits of including

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or excluding areas that exhibit these Candidate species are assigned Listing southeastern United States is the hot impacts. Priority Numbers (LPNs) based on spot for mussel diversity. Seventy-five (10) Whether any specific areas we are immediacy and the magnitude of threat, percent of southeastern mussel species proposing for critical habitat as well as their taxonomic status. The are in varying degrees of rarity or designation should be considered for lower the LPN, the higher priority that possibly extinct (Neves et al. 1997, pp. exclusion under section 4(b)(2) of the species is for us to determine 47–51). The central reason for the Act, and whether the benefits of appropriate action using our available decline of freshwater mussels is the potentially excluding any specific area resources. In the 2004, 2005 (70 FR modification and destruction of their outweigh the benefits of including that 24870), 2006 (71 FR 53756), 2007 (72 FR habitat, especially from sedimentation, area under section 4(b)(2) of the Act. 69034), 2008 (73 FR 75176), 2009 (74 FR dams, and degraded water quality (11) Whether we could improve or 57869), and 2010 (75 FR 69221) Federal (Neves et al. 1997, p. 60; Bogan 1998, p. modify our approach to designating Register Candidate Notices of Review, 376). These eight mussels, like many critical habitat in any way to provide for the Alabama pearlshell, round other southeastern mussel species, have greater public participation and ebonyshell, and southern kidneyshell undergone reductions in total range and understanding, or to better were identified as LPN 2 candidate population density. accommodate public concerns and species; the narrow pigtoe, southern These eight species are all freshwater comments. sandshell, fuzzy pigtoe, and Choctaw bivalve mussels of the families Please note that submissions merely bean were identified as LPN 5 candidate Margaritiferidae and Unionidae. The stating support for or opposition to the species; and the tapered pigtoe was Alabama pearlshell is a member of the action under consideration without identified as an LPN 11 candidate family Margaritiferidae, while the round providing supporting information, species. In our Notices of Review, we ebonyshell, southern sandshell, although noted, will not be considered determined that publication of a southern kidneyshell, Choctaw bean, in making a determination, as section proposed rule to list these species was tapered pigtoe, narrow pigtoe, and fuzzy 4(b)(1)(A) of the Act directs that precluded by our work on higher pigtoe belong to the family Unionidae. determinations as to whether any priority listing actions. These eight These mussels are endemic to portions species is a threatened or endangered species were included in a listing of three Coastal Plain rivers that drain species must be made ‘‘solely on the petition filed by the Center for south-central and southeastern Alabama basis of the best scientific and Biological Diversity on April 20, 2010. and northwestern Florida: the Escambia commercial data available.’’ In a separate action, we found the (known as the Escambia River in Florida You may submit your comments and petition presented substantial and the Conecuh River in Alabama), the materials concerning this proposed rule information that the species may be Yellow, and the Choctawhatchee. All by one of the methods listed in warranted for listing. Because we have three rivers originate in Alabama and ADDRESSES. already made the equivalent 12-month flow across the Florida panhandle If you submit information via http:// finding on these species through our before emptying into the Gulf of Mexico, www.regulations.gov, your entire annual candidate assessment and notice and are entirely contained within the submission—including any personal process, we have also made a East Gulf Coastal Plain Physiographic identifying information—will be posted determination that the species warrant Region. The Alabama pearlshell is also on the Web site. If your submission is listing. Therefore, we have made the known from three locations in the made via a hardcopy that includes requisite findings with regards to the Mobile River Basin; however, only one personal identifying information, you April 20, 2010, petition. of those is considered to be currently may request at the top of your document occupied. that we withhold this information from Background General Biology public review. However, we cannot It is our intent to discuss only those guarantee that we will be able to do so. topics directly relevant to the listing of Freshwater mussels generally live We will post all hardcopy submissions the Alabama pearlshell, round embedded in the bottom of rivers, on http://www.regulations.gov. Please ebonyshell, southern sandshell, streams, and other bodies of water. They include sufficient information with your southern kidneyshell, and Choctaw siphon water into their shells and across comments to allow us to verify any bean as endangered; and the tapered four gills that are specialized for scientific or commercial information pigtoe, narrow pigtoe and fuzzy pigtoe respiration and food collection. Food you include. as threatened in this section of the items include detritus (disintegrated Comments and materials we receive, proposed rule. For information relevant organic debris), algae, diatoms, and as well as supporting documentation we to the designation of critical habitat, see bacteria (Strayer et al. 2004, pp. 430– used in preparing this proposed rule, ‘‘Critical Habitat’’ section below. 431). Adults are filter feeders and will be available for public inspection generally orient themselves on or near Introduction on http://www.regulations.gov, or by the substrate surface to take in food and appointment, during normal business North American freshwater mussel oxygen from the water column. hours, at the U.S. Fish and Wildlife fauna is the richest in the world and Juveniles typically burrow completely Service, Panama City, FL, Fish and historically numbered around 300 beneath the substrate surface and are Wildlife Office (see FOR FURTHER species (Williams et al. 1993, p. 6). pedal (foot) feeders (bringing food INFORMATION CONTACT). Freshwater mussels are in decline, particles inside the shell for ingestion however, and in the past century have that adhere to the foot while it is Previous Federal Actions become more imperiled than any other extended outside the shell) until the The Alabama pearlshell, round group of organisms (Williams et al. structures for filter feeding are more ebonyshell, southern sandshell, 2008, p. 55; Natureserve 2011). fully developed (Yeager et al. 1994, pp. southern kidneyshell, Choctaw bean, Approximately 66 percent of North 200–221; Gatenby et al. 1996, p. 604). tapered pigtoe, narrow pigtoe, and fuzzy America’s freshwater mussel species are Sexes in margaritiferid and unionid pigtoe were first identified as candidates considered vulnerable to extinction or mussels are usually separate. Males for protection under the Act in the May possibly extinct (Williams et al. 1993, p. release sperm into the water column, 4, 2004, Federal Register (69 FR 24876). 6). Within North America, the which females take in through their

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siphons during feeding and respiration. Natural History Museum (AUNHM), Escambia River drainages in south- Fertilization takes place inside the shell. Auburn, Alabama; and Florida Museum central Alabama (Johnson 1983, pp. The eggs are retained in the gills of the of Natural History (FLMNH), 299–304; Mirarchi et al. 2004, p. 40; female until they develop into mature Gainesville, FL. Williams et al. 2008, pp. 98–99). The larvae called glochidia. The glochidia of pearlshell is oblong and grows up to 95 Assessing Status most freshwater mussel species, millimeters (mm) (3.8 inches (in)) in including all eight species addressed in Assessing the state of a freshwater length. The outside of the shell this rule, have a parasitic stage during mussel population is challenging. We (periostracum) is smooth and shiny and which they must attach to the gills, fins, looked at trends in distribution (range) somewhat roughened along the or skin of a fish to transform into a and abundance (numbers), by posterior slope. The inside of the shell juvenile mussel. Depending on the comparing recent occurrence data to (nacre) is whitish or purplish and mussel species, females release historical data. One difficulty of moderately iridescent (refer to Johnson glochidia either separately, in masses investigating temporal trends in these 1983 for a full description). known as conglutinates, or in one large eight species is the lack of historical The Alabama pearlshell is one of five mass known as a superconglutinate. The collection data within the drainages, North American species in the family duration of the parasitic stage varies by particularly in the lower portion of the Margaritiferidae. The family is mussel species, water temperature, and main channels. Athearn (1964, p. 134) represented by only two genera, perhaps host fish species. When the noted the streams of western Florida Margaritifera (Schumacher 1816) and transformation is complete, the juvenile were inadequately sampled, particularly Cumberlandia (Ortmann 1912). In mussels drop from their fish host and the lower Choctawhatchee, Yellow, and Alabama, each genus is represented by sink to the stream bottom where, given the lower Escambia Rivers. Blalock- a single species. The spectaclecase suitable conditions, they grow and Herod et al. (2005, p. 2) stated that little (Cumberlandia monodonta) occurs in mature into adults. collecting effort had been expended in the Tennessee River Basin (Williams et the Choctawhatchee River drainage as al. 2008, pp. 94–95) and the Alabama Survey Data compared to other nearby river systems pearlshell occurs in the Escambia and Recent distributions are based on like the Apalachicola and Mobile River Alabama River basins in lower Alabama. surveys conducted from 1995 to 2011, drainages. This paucity of historical Prior to 1983, the Alabama pearlshell and historical distributions are based on occurrence data may create the was thought to be the same species as collections made prior to 1995. appearance of an increase in the number the Louisiana pearlshell (Margaritifera Historical distribution data from of localities or a larger range than hembeli Conrad 1838) (Simpson 1914; museum records and surveys dated historically; however, this is most likely Clench and Turner 1956), a species now between the late 1800s and 1994 are due to increased sampling efforts. We considered endemic to central sparse, and most of these species were also considered each species’ relative Louisiana. more than likely present throughout abundance in comparison to other The Alabama pearlshell typically their respective river basins. Knowledge mussel species with which they co- inhabits small headwater streams with of historical and current distribution occur. In addition, we relied on various mixed sand and gravel substrates, and abundance data were summarized published documents whose authors are occasionally in sandy mud, with slow to from Butler 1989; Williams et al. 2000 considered experts on these species. moderate current. Very little is known (unpublished), Blalock-Herod et al. These publications either described the about the life-history requirements of 2002, Blalock-Herod et al. 2005, status of these species or assigned a this species. However, Shelton (1995, p. Pilarczyk et al. 2006, and Gangloff and conservation ranking, and include 5 unpub. data) suggests that the Hartfield 2009). These studies represent Williams et al. 1993, Garner et al. 2004, Alabama pearlshell, as opposed to the a compilation of museum records and Blalock-Herod et al. 2005, and Williams Louisiana pearlshell, which occurs in recent status surveys conducted et al. 2008. large colonies, typically occurs in low between 1990 and 2007. We also used Most of the eight species have numbers. The Alabama pearlshell is also various other sources to identify the experienced a decline in populations believed to occur in male-female pairs. historical and current locations and numbers of individuals within Of the 68 Alabama pearlshell observed occupied by these species. These populations, but not all have by Shelton (1995, p. 5 unpub. data), 85 include surveys, reports, and field notes experienced a decline in range. Recent, percent occurred in pairs. Males were prepared by biologists from the Alabama targeted surveys for the Alabama always located upstream of the females Department of Conservation and Natural pearlshell and southern kidneyshell and were typically not more than 1 Resources, Marion, AL; Geological show a dramatic decline in historical meter (m) apart, and juveniles were Survey of Alabama, Tuscaloosa, AL; range. The southern sandshell, Choctaw usually found just a few inches apart. Florida Fish and Wildlife Conservation bean, narrow pigtoe, fuzzy pigtoe and The species is believed to be a long-term Commission, Gainesville, FL; U.S. tapered pigtoe still occur in much of brooder, where gravid females have Geological Survey, Gainesville, FL; their historical range; however, their been observed in December. The host Alabama Malacological Research Center, current range is fragmented and their fish and other aspects of its life history Mobile, AL; Troy University, Troy, AL; numbers appear to be declining. are currently unknown. Appalachian State University, Boone, Taxonomy, Life History, and Historically, the Alabama pearlshell NC; various private consulting groups; Distribution occurred in portions of the Escambia and the U.S. Fish and Wildlife Service, River drainage, and has also been Daphne, AL, and Panama City, FL. In Alabama Pearlshell reported from two systems in the addition, we obtained occurrence data The Alabama pearlshell (Margaritifera Alabama River drainage. The Alabama from the collection databases of the marrianae, Johnson 1983) is a medium- pearlshell’s known historical and Museum of Fluviatile Mollusks (MFM), sized freshwater mussel known from a current occurrences, by water body and Athearn collection; Auburn University few tributaries of the Alabama and county, are shown in Table 1 below.

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TABLE 1—KNOWN HISTORICAL AND CURRENT OCCURRENCES OF ALABAMA PEARLSHELL

Water body Drainage County State Historical or current

Big Flat Creek ...... Alabama ...... Monroe ...... AL ...... Historical and Current. Brushy Creek ...... Alabama ...... Monroe ...... AL ...... Historical. Limestone Creek ...... Alabama ...... Monroe ...... AL ...... Historical. Amos Mill Creek ...... Escambia ...... Conecuh ...... AL ...... Current. Autrey Creek ...... Escambia ...... Conecuh ...... AL ...... Historical. Beaver Creek ...... Escambia ...... Conecuh ...... AL ...... Historical. Bottle Creek ...... Escambia ...... Conecuh ...... AL ...... Historical and Current. Brushy Creek ...... Escambia ...... Conecuh ...... AL ...... Historical. Burnt Corn Creek ...... Escambia ...... Conecuh ...... AL ...... Historical and Current. Horse Creek ...... Escambia ...... Crenshaw ...... AL ...... Historical. Hunter Creek ...... Escambia ...... Conecuh ...... AL ...... Historical and Current. Jordan Creek ...... Escambia ...... Conecuh ...... AL ...... Historical and Current. Little Cedar Creek ...... Escambia ...... Conecuh ...... AL ...... Historical and Current. Murder Creek ...... Escambia ...... Conecuh ...... AL ...... Historical. Otter Creek ...... Escambia ...... Conecuh ...... AL ...... Historical and Current. Sandy Creek ...... Escambia ...... Conecuh ...... AL ...... Historical and Current.

The Amos Mill population, from this drainage. Also in 2010, Powell and Florida (Williams et al. 2008, p. discovered in 2010, represents a new and Ford reported 3 individuals, and 320). The round ebonyshell is round to record, and possibly the only known several relic shells, from Amos Mill oval in shape and reaches about 70 mm surviving population in the Sepulga Creek, in Escambia County, AL. This is (2.8 in.) in length. The shell is thick and River drainage. The Burnt Corn and the first report of the pearlshell from the outside is smooth and dark brown Otter Creek populations reaffirm this drainage, and county, and the first to black in color. The shell interior is historical records that had not been live individual from the Sepulga River white to silvery and iridescent reported in nearly 30 years. Two of the system in nearly 50 years. Little Cedar (Williams and Butler 1994, p. 61; Sandy Creek locations, discovered in Creek supported good numbers of Williams et al. 2008, p. 319). The round 2011, are new populations. Since the Alabama pearlshell in the late 1990’s ebonyshell was originally described by late 1990’s, more than 70 locations (54 individuals reported in 1998). B. H. Wright in 1899 and placed in the within the Alabama River Basin were However, during a qualitative search of genus Unio. Simpson (1900) reexamined surveyed for mollusks (McGregor et al. the same area in 2005, only two live the type specimen and assigned it to the 1999, pp. 13–14; Powell and Ford 2010 pearlshell were found (Powell 2005 genus Obovaria. Based on shell pers. obs.; Buntin 2011 pers. comm.; pers. obs.), and in 2006, three live characters, Williams and Butler (1994, Fobian 2011 pers. comm.), 35 of which pearlshells were observed (Johnson p. 61) recognized it as clearly a species were located in the Limestone and Big 2006 in litt.). Live Alabama pearlshell of the genus Fusconaia, and its Flat Creek drainages, and no live have not been observed in Hunter Creek placement in the genus is supported Alabama pearlshell were reported. The since 1998, when eight live individuals genetically (Lydeard et al. 2000, p. 149). last documented occurrence in Big Flat were reported (Shelton 1998 pers. Very little is known about the habitat Creek was a fresh dead individual comm.). During two visits to the stream requirements or life history of the round collected in 1995 (Shelton 1995, p. 3 in 1999, Shelton found no evidence of ebonyshell. It occurs typically in stable unpub. data), and the last reported the species (Shelton 1999 in litt.), and substrates of sand, small gravel, or occurrence in the Limestone Creek reported high levels of sedimentation. sandy mud in slow to moderate current. drainage was 1974 where Williams However, in 2005 the shells of three It is believed to be a short-term brooder, (2009 pers. comm.) reported it as fresh dead Alabama pearlshells were and gravid females have been observed common. Despite numerous visits, the reported from Hunter Creek, indicating in the spring and summer. The fish pearlshell has not been collected in this the persistence of the species in that host(s) for the round ebonyshell is system since 1974. A fresh dead drainage (Powell, pers. obs. 2005). currently unknown (Williams et al. Evidence suggests that much of the individual, collected by Shelton (1998), 2008, p. 320). rangewide decline of this species has represents the most recent record from The round ebonyshell is known only the Big Flat Creek drainage. occurred within the past few decades. Specific causes of the decline and from the main channel of the Escambia- Recent data suggest that, of the nine disappearance of the Alabama pearlshell Conecuh River and is the only mussel remaining populations, the largest from historical stream localities are species endemic to the drainage populations may occur in Little Cedar unknown. However, they are likely (Williams et al. 2008, p. 320). Due to and Otter Mill Creeks. In 2011, Fobian related to past and present land use recent survey data, its known range was and Pritchett reported new populations patterns. Many of the small streams extended downstream the Escambia at two locations in an unnamed historically inhabited by the Alabama River to near Mystic Springs in Florida tributary to Sandy Creek. Although this pearlshell are impacted to various (Shelton et al. 2007, p. 9 unpub. data), is not the first report from the Sandy degrees by nonpoint-source pollution. and upstream the Conecuh River to just Creek basin, it is, however, the first for above the Covington County line in the two unnamed tributaries. In 2010, Round Ebonyshell Alabama (Williams et al. 2008, p. 320). Buntin and Fobian (2011 pers. comm.) The round ebonyshell (Fusconaia The round ebonyshell’s known reported 10 live individuals from Otter rotulata, Wright 1899) is a medium- historical and current occurrences, by Creek. This is the first time since 1981 sized freshwater mussel endemic to the water body and county, are shown in that the pearlshell has been reported Escambia River drainage in Alabama Table 2 below.

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TABLE 2—KNOWN HISTORICAL AND CURRENT OCCURRENCES OF THE ROUND EBONYSHELL

Water body Drainage County State Historical or current

Conecuh River ...... Escambia ...... Escambia, Covington ...... AL ...... Historical and Current. Escambia River ...... Escambia ...... Escambia, Santa Rosa .... FL ...... Historical and Current.

The round ebonyshell has one of the River drainages in Alabama and Florida The southern sandshell is typically most restricted distributions of any (Williams et al. 2008, p. 338). The found in small creeks and rivers in North American unionid (Williams and southern sandshell is elliptical in shape stable substrates of sand or mixtures of Butler 1994, p. 61). Its current range and reaches about 83 mm (2.3 in.) in sand and fine gravel, with slow to (based on live individuals and shell length. Its shell is smooth and shiny, moderate current. It is a long-term material) is confined to approximately and greenish in color in young brooder, and females are gravid from 120 km (75 mi) of river channel. The specimens, becoming dark greenish late summer or autumn to the following round ebonyshell is also extremely rare brown to black with age, with many spring (Williams et al. 2008, p. 338). (Williams et al. 2008, p. 320). variable green rays. The shell interior is The southern sandshell is one of only Researchers collected a total of three bluish white and iridescent. Sexual four species that produce a live individuals during a 2006 status dimorphism is present as a slight superconglutinate to attract a host. A survey (Shelton et al. 2007, pp. 8–10 inflation of the posterioventral shell superconglutinate is a mass that mimics unpub. data). At stations where the margin of females (Williams and Butler the shape, coloration, and movement of species was present, roughly 950 1994, p. 97; Williams et al. 2008, p. a fish and is produced by the female mussels were collected for every 1 337). The southern sandshell (Hamiota mussel to hold the glochidia (larval round ebonyshell. Its limited australis) was originally described by C. mussels) from one year’s reproductive distribution and small population size T. Simpson (1900) as Lampsilis effort (Haag et al. 1995, p. 472). After makes round ebonyshell particularly australis. Heard (1979), however, release, the superconglutinate is vulnerable to catastrophic events such designated it as a species of Villosa. It tethered to the female mussel by a as droughts, flood scour, and was placed in the genus Hamiota by Roe mucus strand, and it appears to dart and contaminant spills. Due to its limited and Hartfield (2005, pp. 1–3) who swim in the current. Although the fish distribution and rarity, Garner et al. confirmed earlier published suggestions host for the southern sandshell has not (2004, p. 56) considered the round by Fuller and Bereza (1973, p. 53) and been identified, it likely uses predatory ebonyshell vulnerable to extinction, and O’Brien and Brim Box (1999, pp. 135– sunfishes such as basses, like other classified it as a species of highest 136) that this species and three others Hamiota species (Haag et al. 1995, p. conservation concern in Alabama. of the genus Lampsilis represent a 475; O’Brien and Brim Box 1999, p. 134; Williams et al. (1993, p. 11) considered distinct genus. This separation from Blalock-Herod et al. 2002, p. 1885). the round ebonyshell as endangered other Lampsilis is supported genetically The southern sandshell is endemic to throughout its range. (Roe et al. 2001, p. 2230). The new the Escambia River drainage in genus, Hamiota, is distinguished based Alabama, and the Yellow and Southern Sandshell on several characters including unique Choctawhatchee River drainages in The southern sandshell (Hamiota shape and placement of the marsupia Alabama and Florida (Blalock–Herod et australis, Simpson 1900) is a medium- (where females brood developing al. 2002, pp. 1882, 1884). The southern sized freshwater mussel known from the larvae), and production of a single large sandshell’s known historical and Escambia River drainage in Alabama, conglutinate, termed a current occurrences, by water body and and the Yellow and Choctawhatchee superconglutinate. county, are shown in Table 3 below.

TABLE 3—KNOWN HISTORICAL AND CURRENT OCCURRENCES OF THE SOUTHERN SANDSHELL

Water body Drainage County State Historical or current

Alligator Creek ...... Choctawhatchee ...... Washington ...... FL ...... Historical. Bruce Creek ...... Choctawhatchee ...... Walton ...... FL ...... Current. Choctawhatchee River ...... Choctawhatchee ...... Geneva ...... AL ...... Historical. Choctawhatchee River ...... Choctawhatchee ...... Holmes, Dale ...... FL, AL .... Historical and Current. Corner Creek ...... Choctawhatchee ...... Geneva ...... AL ...... Current. Double Bridges Creek ...... Choctawhatchee ...... Coffee ...... AL ...... Current. East Fork Choctawhatchee R...... Choctawhatchee ...... Henry ...... AL ...... Historical and Current. East Fork Choctawhatchee R...... Choctawhatchee ...... Dale ...... AL ...... Historical. Eightmile Creek ...... Choctawhatchee ...... Walton, Geneva ...... FL, AL .... Current. Flat Creek ...... Choctawhatchee ...... Geneva ...... AL ...... Current. Holmes Creek ...... Choctawhatchee ...... Holmes ...... FL ...... Historical. Jordan Creek ...... Choctawhatchee ...... Conecuh ...... AL ...... Current. Limestone Creek ...... Choctawhatchee ...... Walton ...... FL ...... Historical. Little Choctawhatchee River ...... Choctawhatchee ...... Dale, Houston ...... AL ...... Historical. Natural Bridge Creek ...... Choctawhatchee ...... Geneva ...... AL ...... Current. Patsaliga Creek ...... Choctawhatchee ...... Crenshaw ...... AL ...... Current. Pauls Creek ...... Choctawhatchee ...... Barbour ...... AL ...... Current. Pea Creek (Barbour Co.) ...... Choctawhatchee ...... Barbour ...... AL ...... Historical and Current. Pea Creek (Dale Co.) ...... Choctawhatchee ...... Dale ...... AL ...... Historical. Pea River ...... Choctawhatchee ...... Geneva, Barbour ...... AL ...... Historical. Pea River ...... Choctawhatchee ...... Coffee, Dale, Pike ...... AL ...... Historical and Current. Sikes Creek ...... Choctawhatchee ...... Barbour ...... AL ...... Current.

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TABLE 3—KNOWN HISTORICAL AND CURRENT OCCURRENCES OF THE SOUTHERN SANDSHELL—Continued

Water body Drainage County State Historical or current

Tenmile Creek ...... Choctawhatchee ...... Holmes ...... FL ...... Historical. West Fork Choctawhatchee R...... Choctawhatchee ...... Barbour, Dale ...... AL ...... Historical and Current. Whitewater Creek ...... Choctawhatchee ...... Coffee ...... AL ...... Historical. Wrights Creek ...... Choctawhatchee ...... Holmes ...... FL ...... Current. Burnt Corn Creek ...... Escambia ...... Escambia, Conecuh ...... AL ...... Historical. Conecuh River ...... Escambia ...... Pike ...... AL ...... Current. Conecuh River ...... Escambia ...... Covington, Crenshaw ...... AL ...... Historical. Little Patsaliga Creek ...... Escambia ...... Crenshaw ...... AL ...... Historical. Sepulga River ...... Escambia ...... Conecuh ...... AL ...... Historical. Five Runs Creek ...... Yellow ...... Covington ...... AL ...... Historical and Current. Pond Creek ...... Yellow ...... Okaloosa, Walton ...... FL ...... Historical. Shoal River ...... Yellow ...... Okaloosa ...... FL ...... Current. Yellow River ...... Yellow ...... Okaloosa ...... FL ...... Current. Yellow River ...... Yellow ...... Covington ...... AL ...... Historical and Current.

The southern sandshell persists in its (2004, p. 60), and considered threatened southern kidneyshell. It is typically historical range; however, its range is throughout its range by Williams et al. found in medium creeks to medium fragmented and numbers appear to be (1993, p. 11). rivers in firm sand substrates with slow declining (Williams et al. 2008, p. 338). Southern Kidneyshell to moderate current (Williams et al. The number of locations in the 2008, pp. 625). A recent status survey in Escambia drainage known to support The southern kidneyshell the Choctawhatchee basin in Alabama the species has declined. It is known (Ptychobranchus jonesi, van der Schalie found its preferred habitat to be stable from a total of nine locations, however, 1934) is a medium-sized freshwater substrates near bedrock outcroppings only three are recent occurrences. Also, mussel known from the Escambia and (Gangloff and Hartfield 2009, p. 25). The its numbers are very low; a total of four Choctawhatchee River drainages in southern kidneyshell is believed to be a individuals (live and shell material) Alabama and Florida, and the Yellow long-term brooder, with females gravid have been collected in the Escambia River drainage in Alabama (Williams et from autumn to the following spring or drainage since 1995. In the Yellow River al. 2008, p. 624). The southern summer. Preliminary reproductive drainage, the number of locations kidneyshell is elliptical and reaches studies found that females release their known to support southern sandshell about 72 mm (2.8 in.) in length. Its shell glochidia in small conglutinates that are populations has declined from a total of is smooth and shiny, and greenish bulbous at one end and tapered at the 15 to 10 currently. The number of yellow to dark brown or black in color, other (Alabama Aquatic Biodiversity sometimes with weak rays. The shell locations known to support the species Center 2006 unpub. data). Host fish for interior is bluish white with some in the Choctawhatchee River drainage the southern kidneyshell are currently iridescence (Williams and Butler 1994, has declined from 44 to 25 currently; unknown; however, darters serve as p. 126; Williams et al. 2008, p. 624). The and it may be extirpated from central primary glochidial hosts to other southern kidneyshell was described by portions of the Choctawhatchee River members of the genus Ptychobranchus main channel and from some of its H. van der Schalie (1934) as Lampsilis (Luo 1993, p. 16; Haag and Warren tributaries. Sedimentation could be one jonesi. Following the examination of 1997, p. 580). factor contributing to its decline. In gills of gravid females, Fuller and order to reproduce, the southern Bereza (1973, p. 53) determined it The southern kidneyshell is endemic sandshell must attract a site-feeding fish belonged in the genus Ptychobranchus. to the Escambia, Choctawhatchee, and to its superconglutinate lure. Waters When gravid, the marsupial gills form Yellow River drainages in Alabama and clouded by silt and sediment would folds along the outer edge, a Florida (Williams et al. 2008, p. 624), reduce the chance of this interaction characteristic unique to the genus but is currently known only from the occurring (Haag et al. 1995, p. 475). Ptychobranchus (Williams et al. 2008, p. Choctawhatchee drainage. The southern The southern sandshell is classified as 609). kidneyshell’s known historical and a species of highest conservation Very little is known about the habitat current occurrences, by water body and concern in Alabama by Garner et al. requirements or life history of the county, are shown in Table 4 below.

TABLE 4—KNOWN HISTORICAL AND CURRENT OCCURRENCES OF THE SOUTHERN KIDNEYSHELL

Water body Drainage County State Historical or current

Choctawhatchee River ...... Choctawhatchee ...... Dale ...... AL ...... Historical and Current. Choctawhatchee River ...... Choctawhatchee ...... Walton, Geneva ...... FL, AL .... Historical. East Fork Choctawhatchee R ...... Choctawhatchee ...... Dale, Henry ...... AL ...... Historical. Flat Creek ...... Choctawhatchee ...... Geneva ...... AL ...... Historical. Holmes Creek ...... Choctawhatchee ...... Washington ...... AL ...... Current. Pea River ...... Choctawhatchee ...... Geneva ...... AL ...... Current. Pea River ...... Choctawhatchee ...... Pike, Barbour ...... AL ...... Historical. Pea River ...... Choctawhatchee ...... Coffee, Dale ...... AL ...... Historical and Current. Sandy Creek ...... Choctawhatchee ...... Walton ...... FL ...... Historical. West Fork Choctawhatchee R ...... Choctawhatchee ...... Barbour ...... AL ...... Historical and Current. West Fork Choctawhatchee R ...... Choctawhatchee ...... Dale ...... AL ...... Historical. Whitewater Creek ...... Choctawhatchee ...... Coffee ...... AL ...... Historical.

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TABLE 4—KNOWN HISTORICAL AND CURRENT OCCURRENCES OF THE SOUTHERN KIDNEYSHELL—Continued

Water body Drainage County State Historical or current

Burnt Corn Creek ...... Escambia ...... Escambia ...... AL ...... Historical. Conecuh River ...... Escambia ...... Covington, Crenshaw ...... AL ...... Historical. Jordan Creek ...... Escambia ...... Conecuh ...... AL ...... Historical. Little Patsaliga Creek ...... Escambia ...... Crenshaw ...... AL ...... Historical. Patsaliga Creek ...... Escambia ...... Covington, Crenshaw ...... AL ...... Historical. Sepulga River ...... Escambia ...... Conecuh ...... AL ...... Historical. Hollis Creek ...... Yellow ...... Covington ...... AL ...... Historical.

Since 1995, the southern kidneyshell of highest conservation concern in rounded posteriorly, and sometimes has been detected at only 10 locations Alabama by Garner et al. (2004, p. 83), slightly more inflated (Athearn 1964, p. within the Choctawhatchee River and considered threatened throughout 137). The Choctaw bean was originally drainage. The species appears to have its range by Williams et al. (1993, p. 14) described by H. D. Athearn in 1964. been common historically (In 1964, H. Choctaw Bean Very little is known about the habitat D. Athearn collected 98 individuals at requirements or life history of the one site on the West Fork The Choctaw bean (Villosa Choctaw bean. It is found in large creeks Choctawhatchee), but it is currently choctawensis, Athearn 1964) is a small and small rivers in stable substrates of considered one of the most imperiled freshwater mussel known from the silty sand to sandy clay with moderate species in the United States (Blalock- Escambia, Yellow, and Choctawhatchee current. It is believed to be a long-term Herod et al. 2005, p. 16; Williams et al. River drainages of Alabama and Florida. 2008, p. 625). In addition to a reduction The oval shell of the Choctaw bean brooder, with females gravid from late in range, its population numbers also reaches about 49 mm (2.0 in.) in length, summer or autumn to the following appear to be very low. A 2006–2007 and is shiny and greenish-brown in summer. Its fish host is currently status survey in the Alabama portions of color, typically with thin green rays, unknown (Williams et al. 2008, p. 758). the Choctawhatchee basin found the though the rays are often obscured in The Choctaw bean is known from the southern kidneyshell was extremely darker individuals. The shell interior Escambia, Yellow, and Choctawhatchee rare. A total of 13 were encountered color varies from bluish white to smoky River drainages in Alabama and Florida alive, and the species comprised less brown with some iridescence (Williams (Williams et al. 2008, p. 758). The than 0.3 percent of the total mussel and Butler 1994, p. 100; Williams et al. Choctaw bean’s known historical and assemblage (Gangloff and Hartfield 2008, p. 758). The sexes are dimorphic, current occurrences, by water body and 2009, p. 249). It is classified as a species with females truncate or widely county, are shown in the table below.

TABLE 5—KNOWN HISTORICAL AND CURRENT OCCURRENCES FOR THE CHOCTAW BEAN

Water body Drainage County State Historical or current

Big Sandy Creek ...... Choctawhatchee ...... Bullock ...... AL ...... Current. Bruce Creek ...... Choctawhatchee ...... Walton ...... FL ...... Current. Choctawhatchee River ...... Choctawhatchee ...... Dale ...... AL ...... Current. Choctawhatchee River ...... Choctawhatchee ...... Holmes ...... AL ...... Historical. Choctawhatchee River ...... Choctawhatchee ...... Washington, Geneva ...... FL, AL .... Historical and Current. Claybank Creek ...... Choctawhatchee ...... Dale ...... AL ...... Current. East Fork Choctawhatchee R...... Choctawhatchee ...... Barbour ...... AL ...... Current. East Fork Choctawhatchee R...... Choctawhatchee ...... Henry ...... AL ...... Historical and Current. Flat Creek ...... Choctawhatchee ...... Geneva ...... AL ...... Current. Holmes Creek ...... Choctawhatchee ...... Washington ...... FL ...... Current. Judy Creek ...... Choctawhatchee ...... Dale ...... AL ...... Current. Limestone Creek ...... Choctawhatchee ...... Walton ...... FL ...... Current. Paul’s Creek ...... Choctawhatchee ...... Barbour ...... AL ...... Current. Pea Creek ...... Choctawhatchee ...... Barbour ...... AL ...... Current. Pea River ...... Choctawhatchee ...... Coffee ...... AL ...... Current. Pea River ...... Choctawhatchee ...... Geneva, Pike, Barbour ...... AL ...... Historical and Current. West Fork Choctawhatchee R...... Choctawhatchee ...... Dale ...... AL ...... Current. West Fork Choctawhatchee R...... Choctawhatchee ...... Pike, Barbour ...... AL ...... Historical and Current. Whitewater Creek ...... Choctawhatchee ...... Coffee ...... AL ...... Current. Wrights Creek ...... Choctawhatchee ...... Holmes ...... FL ...... Current. Conecuh River ...... Escambia ...... Crenshaw, Pike ...... AL ...... Current. Escambia River ...... Escambia ...... Santa Rosa ...... FL ...... Historical. Escambia River ...... Escambia ...... Escambia ...... FL ...... Historical and Current. Little Patsaliga Creek ...... Escambia ...... Crenshaw ...... AL ...... Historical. Murder Creek ...... Escambia ...... Conecuh ...... AL ...... Historical. Olustee Creek ...... Escambia ...... Pike ...... AL ...... Current. Patsaliga Creek ...... Escambia ...... Crenshaw ...... AL ...... Historical and Current. Pigeon Creek ...... Escambia ...... Butler ...... AL ...... Historical. Five Runs Creek ...... Yellow ...... Covington ...... AL ...... Historical and Current. Yellow River ...... Yellow ...... Okaloosa, Covington ...... FL, AL .... Historical and Current.

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The Choctaw bean persists in most of Williams et al. (1993, p. 14) considered however, this was dismissed based on its historical range. However, its the Choctaw bean as threatened the presence of sculpture on the shell. populations are fragmented and its throughout its range. Genetic analysis by Lydeard et al. (2000, numbers are low, particularly in the Tapered Pigtoe p. 149) determined it to be a sister taxon Escambia and Yellow drainages. The to Fusconaia escambia. Based on number of locations in the Escambia The tapered pigtoe (Fusconaia burkei, genetic results and soft anatomy River drainage known to support the Walker 1922) is a small to medium- similarity, Williams et al. (2008, p. 296) species has declined from a total of 13 sized mussel endemic to the recognized burkei as belonging to the to 6 currently. Also, its numbers within Choctawhatchee river drainage in genus Fusconaia. Alabama and Florida (Williams et al. the drainage are very low; a total of only The tapered pigtoe is found in small 10 individuals have been collected since 2008, p. 296). The elliptical to subtriangular shell of the tapered pigtoe to medium rivers in stable substrates of 1995. The number of locations known to sand, small gravel, or sandy mud, with support the Choctaw bean in the Yellow reaches about 75 mm (3.0 in.) in length, slow to moderate current (Williams et River drainage has declined from a total and is sculptured with plications al. 2008, p. 296). The reproductive of 7 to 4 currently. Since 1995, a total (parallel ridges) that radiate from the biology of the tapered pigtoe was of 28 individuals have been collected posterior ridge. In younger individuals, studied by White et al. (2008). It is a within the Yellow drainage. In the the shell exterior is greenish brown to short-term brooder, with females gravid Choctawhatchee River drainage, the yellowish brown in color, occasionally from mid-March to May. The blacktail Choctaw bean continues to persist in with faint dark-green rays, and with shiner (Cyprinella venusta) was found most areas. It is known from a total of pronounced sculpture often covering to serve as a host for tapered pigtoe 40 locations throughout the drainage, 34 the entire shell; in older individuals the glochidia in the preliminary host trial of which are recent occurrences. shell becomes dark brown to black with Heard assessed the status of the age and sculpture is often subtle. The (White et al. 2008, p. 122–123). Choctaw bean in 1975 (p. 17) and stated shell interior is bluish white (Williams The tapered pigtoe is endemic to the that it was formerly abundant in the et al. 2008, p. 295). The tapered pigtoe Choctawhatchee River drainage in main channel of the Choctawhatchee was described by B. Walker (1922) (in Alabama and Florida (Williams et al. River in Florida, but has become quite Ortmann and Walker) as Quincuncina 2008, p. 296). Its historical and current rare. Garner et al. (2004, p. 103) burkei, a new genus and species (the distribution includes several oxbow considered the Choctaw bean vulnerable genus description was done by A. E. lakes in Florida; some with a flowing to extinction due to its limited Ortmann and the species description by connection to main channel. The distribution and habitat degradation, Walker). In the description, Ortmann tapered pigtoe’s known historical and and classified it as a species of high noted the species had gill features current occurrences, by water body and conservation concern in Alabama. characteristic of the genus Fusconaia; county, are shown in the table below.

TABLE 6—KNOWN HISTORICAL AND CURRENT OCCURRENCES FOR THE TAPERED PIGTOE

Water body Drainage County State Historical or current

Bear Creek ...... Choctawhatchee ...... Houston ...... AL ...... Historical. Big Creek ...... Choctawhatchee ...... Barbour ...... AL ...... Current. Blue Creek ...... Choctawhatchee ...... Holmes ...... FL ...... Current. Bruce Creek ...... Choctawhatchee ...... Walton ...... FL ...... Current. Choctawhatchee River ...... Choctawhatchee ...... Dale ...... AL ...... Historical. Choctawhatchee River ...... Choctawhatchee ...... Washington, Walton, FL ...... Historical and Current. Holmes. Cowford Island channel ...... Choctawhatchee ...... Washington ...... FL ...... Historical and Current. Crawford Lake ...... Choctawhatchee ...... Washington ...... FL ...... Historical. Crews Lake ...... Choctawhatchee ...... Washington ...... FL ...... Current. East Fork Choctawhatchee R...... Choctawhatchee ...... Dale ...... AL ...... Historical. East Fork Choctawhatchee R...... Choctawhatchee ...... Henry ...... AL ...... Historical and Current. East Pittman Creek ...... Choctawhatchee ...... Holmes ...... FL ...... Historical and Current. Eightmile Creek ...... Choctawhatchee ...... Walton, Geneva ...... FL, AL .... Current. Flat Creek ...... Choctawhatchee ...... Geneva ...... AL ...... Historical and Current. Holmes Creek ...... Choctawhatchee ...... Washington, Holmes, Jack- FL ...... Historical and Current. son. Horseshoe Lake ...... Choctawhatchee ...... Washington ...... FL ...... Historical. Hurricane Creek ...... Choctawhatchee ...... Geneva ...... AL ...... Historical. Judy Creek ...... Choctawhatchee ...... Dale ...... AL ...... Current. Limestone Creek ...... Choctawhatchee ...... Walton ...... FL ...... Historical and Current. Little Choctawhatchee River ...... Choctawhatchee ...... Dale, Houston ...... AL ...... Historical. Panther Creek ...... Choctawhatchee ...... Houston ...... AL ...... Historical. Parrot Creek ...... Choctawhatchee ...... Holmes ...... FL ...... Current. Paul’s Creek ...... Choctawhatchee ...... Barbour ...... AL ...... Current. Pea Creek ...... Choctawhatchee ...... Barbour ...... AL ...... Current. Pea River ...... Choctawhatchee ...... Dale, Barbour ...... AL ...... Historical. Pea River ...... Choctawhatchee ...... Coffee, Pike ...... AL ...... Historical and Current. Pine Log Creek ...... Choctawhatchee ...... Washington, Bay ...... FL ...... Current. Sandy Creek ...... Choctawhatchee ...... Walton ...... FL ...... Current. Tenmile Creek ...... Choctawhatchee ...... Holmes ...... FL ...... Historical. West Fork Choctawhatchee R...... Choctawhatchee ...... Dale, Pike ...... AL ...... Historical. West Fork Choctawhatchee R...... Choctawhatchee ...... Barbour ...... AL ...... Historical and Current. West Pittman Creek ...... Choctawhatchee ...... Holmes ...... FL ...... Current.

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TABLE 6—KNOWN HISTORICAL AND CURRENT OCCURRENCES FOR THE TAPERED PIGTOE—Continued

Water body Drainage County State Historical or current

Wrights Creek ...... Choctawhatchee ...... Holmes ...... FL ...... Current.

The tapered pigtoe appears to be conservation concern in Alabama. The narrow pigtoe. It is found in creeks and absent from portions of its historical tapered pigtoe is considered threatened small to medium rivers in stable range and found only in isolated throughout its range by Williams et al. substrates of sand, sand and gravel, or locations (Blalock-Herod et al. 2005, p. (1993, p. 14). silty sand, with slow to moderate 17). The species is known from a total Narrow Pigtoe current. It is believed to be a short-term of 60 locations within the brooder, with females gravid during Choctawhatchee River drainage. It was The narrow pigtoe (Fusconaia spring and summer. The host fish for not detected at 11 historical sites escambia, Clench and Turner 1956) is a the narrow pigtoe is currently unknown examined during recent status surveys small to medium-sized mussel known (Williams et al. 2008, p. 317). The (9 additional historic locations were not from the Escambia River drainage in species is somewhat unusual in that it examined). Many of those historic Alabama and Florida, and the Yellow does tolerate a small reservoir occurrences are in the middle section of River drainage in Florida. The environment (Williams 2009 pers. the drainage, and the species appears to subtriangular to squarish shaped shell of comm.). Reproducing narrow pigtoe be declining in that portion of its range. the narrow pigtoe reaches about 75 mm populations were found recently in (3.0 in.) in length. The shell is The tapered pigtoe continues to persist some areas of Point A Lake and Gantt moderately thick and is usually reddish in isolated locations, mainly in the Lake reservoirs. brown to black in color. The shell Choctawhatchee River main channel in interior is white to salmon in color with The narrow pigtoe is endemic to the Florida and in the headwaters in iridescence near the posterior margin Escambia River drainage in Alabama Alabama. (Williams and Butler 1994, p. 77; and Florida, and to the Yellow River Due to its limited distribution, rarity, Williams et al. 2008, p. 316). The drainage in Florida (Williams et al. and habitat degradation, Garner et al. narrow pigtoe was originally described 2008, p. 317). The narrow pigtoe’s (2004, p. 105) consider the tapered by W.J. Clench and R.D. Turner in 1956. known historical and current pigtoe vulnerable to extinction, and Little is known about the habitat occurrences, by water body and county, classified it as a species of high requirements or life history of the are shown in Table 7 below.

TABLE 7—KNOWN HISTORICAL AND CURRENT OCCURRENCES FOR THE NARROW PIGTOE

Water body Drainage County State Historical or current

Bottle Creek ...... Escambia ...... Conecuh ...... AL ...... Historical. Burnt Corn Creek ...... Escambia ...... Conecuh ...... AL ...... Current. Conecuh River ...... Escambia ...... Pike ...... AL ...... Current. Conecuh River ...... Escambia ...... Escambia, Covington, Cren- AL ...... Historical and Current. shaw. Escambia River ...... Escambia ...... Escambia, Santa Rosa ...... FL ...... Historical and Current. Murder Creek ...... Escambia ...... Conecuh ...... AL ...... Historical. Panther Creek ...... Escambia ...... Butler ...... AL ...... Historical. Patsaliga Creek ...... Escambia ...... Covington, Crenshaw ...... AL ...... Current. Persimmon Creek ...... Escambia ...... Butler ...... AL ...... Current. Three Run Creek ...... Escambia ...... Butler ...... AL ...... Current. Yellow River ...... Yellow ...... Santa Rosa ...... FL ...... Historical. Yellow River ...... Yellow ...... Okaloosa ...... FL ...... Historical and Current.

The narrow pigtoe still occurs in extinction because of its limited to black in color. The shell interior is much of its historic range, but may be distribution, rarity, and susceptibility to bluish white, with slight iridescence extirpated from localized areas. In the habitat degradation, and classified it as near the margin (Williams and Butler Escambia drainage, the number of a species of highest conservation 1994, p. 90; Williams et al. 2008, p. locations that support the species has concern in Alabama. Williams et al. 573). The fuzzy pigtoe was described by declined from 32 to 24 currently. It was (1993, p. 11) considered the narrow B. H. Wright (1898) as Unio strodeanus. not detected at two historical sites pigtoe threatened throughout its range. Simpson (1900) reexamined the type examined recently (four historical sites specimen and reassigned it to the genus Fuzzy Pigtoe were not examined) in the drainage. In Pleurobema. The uniqueness of the the Yellow drainage, the number of sites The fuzzy pigtoe (Pleurobema fuzzy pigtoe has been verified by supporting narrow pigtoe populations strodeanum, Wright (1898) is a small to Williams et al. (2008, p. 574). has declined from four to three medium-sized mussel known from the The fuzzy pigtoe is found in medium currently. The species is rare in the Escambia, Yellow, and Choctawhatchee creeks and rivers in stable substrates of Yellow River drainage; a total of only 23 River drainages in Alabama and Florida sand and silty sand with slow to individuals from 3 locations have been (Williams et al. 2008, p. 574). The fuzzy moderate current. The reproductive collected since 1995. pigtoe is oval to subtriangular and biology of the fuzzy pigtoe was studied Garner et al. (2004, p. 55) considered reaches about 75 mm (3.0 in.) in length. by White et al. (2008, p. 122–123). It is the narrow pigtoe vulnerable to Its shell surface is usually dark brown a short-term brooder, with females

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gravid from mid-March to May. The The fuzzy pigtoe is endemic to the occurrences, by water body and county, blacktail shiner (Cyprinella venusta) Escambia, Yellow, and Choctawhatchee are shown in Table 8 below. was found to serve as a host for fuzzy River drainages in Alabama and Florida pigtoe glochidia in the preliminary (Williams et al. 2008, p. 574). The fuzzy study trial. pigtoe’s known historical and current

TABLE 8—KNOWN HISTORICAL AND CURRENT OCCURRENCES OF THE FUZZY PIGTOE

Water body Drainage County State Historical or current

Big Sandy Creek ...... Choctawhatchee ...... Bullock ...... AL ...... Current. Blue Creek ...... Choctawhatchee ...... Holmes ...... FL ...... Current. Choctawhatchee River ...... Choctawhatchee ...... Washington, Walton, FL, AL .... Historical and Current. Holmes, Geneva, Dale. Claybank Creek ...... Choctawhatchee ...... Dale ...... AL ...... Current. East Fork Choctawhatchee R...... Choctawhatchee ...... Dale ...... AL ...... Current. East Fork Choctawhatchee R...... Choctawhatchee ...... Henry ...... AL ...... Historical and Current. East Pittman Creek ...... Choctawhatchee ...... Holmes ...... FL ...... Current. Eightmile Creek ...... Choctawhatchee ...... Walton, Geneva ...... FL, AL .... Current. Flat Creek ...... Choctawhatchee ...... Geneva ...... AL ...... Current. Holmes Creek ...... Choctawhatchee ...... Holmes, Jackson ...... FL ...... Current. Holmes Creek ...... Choctawhatchee ...... Washington ...... FL ...... Historical and Current. Hurricane Creek ...... Choctawhatchee ...... Geneva ...... AL ...... Current. Judy Creek ...... Choctawhatchee ...... Dale ...... AL ...... Current. Limestone Creek ...... Choctawhatchee ...... Walton ...... FL ...... Historical. Little Choctawhatchee River ...... Choctawhatchee ...... Dale, Houston ...... AL ...... Historical. Panther Creek ...... Choctawhatchee ...... Houston ...... AL ...... Historical. Pauls Creek ...... Choctawhatchee ...... Barbour ...... AL ...... Current. Pea Creek ...... Choctawhatchee ...... Barbour ...... AL ...... Current. Pea River ...... Choctawhatchee ...... Pike, Barbour ...... AL ...... Current. Pea River ...... Choctawhatchee ...... Geneva, Coffee, Dale ...... AL ...... Historical and Current. Sandy Creek ...... Choctawhatchee ...... Walton ...... FL ...... Current. Steep Head Creek ...... Choctawhatchee ...... Coffee ...... AL ...... Current. unnamed trib. to Lindsey Cr...... Choctawhatchee ...... Barbour ...... AL ...... Current. Walnut Creek ...... Choctawhatchee ...... Pike ...... AL ...... Current. West Fork Choctawhatchee R...... Choctawhatchee ...... Dale, Barbour ...... AL ...... Historical and Current. West Pittman Creek ...... Choctawhatchee ...... Holmes ...... FL ...... Current. Wrights Creek ...... Choctawhatchee ...... Holmes ...... FL ...... Historical and Current. Bottle Creek ...... Escambia ...... Conecuh ...... AL ...... Historical and Current. Burnt Corn Creek ...... Escambia ...... Conecuh ...... AL ...... Historical and Current. Conecuh River ...... Escambia ...... Escambia, Covington, Cren- AL ...... Historical and Current. shaw, Pike. Escambia River ...... Escambia ...... Escambia, Santa Rosa ...... FL ...... Historical and Current. Jordan Creek ...... Escambia ...... Conecuh ...... AL ...... Current. Little Patsaliga Creek ...... Escambia ...... Crenshaw ...... AL ...... Historical and Current. Mill Creek ...... Escambia ...... Pike ...... AL ...... Historical. Murder Creek ...... Escambia ...... Conecuh ...... AL ...... Historical and Current. Patsaliga Creek ...... Escambia ...... Crenshaw ...... AL ...... Historical and Current. Persimmon Creek ...... Escambia ...... Butler ...... AL ...... Current. Pigeon Creek ...... Escambia ...... Covington ...... AL ...... Historical and Current. Sandy Creek ...... Escambia ...... Conecuh ...... AL ...... Historical. Sepulga River ...... Escambia ...... Conecuh ...... AL ...... Historical. Yellow River ...... Yellow ...... Covington ...... AL ...... Historical. Yellow River ...... Yellow ...... Okaloosa ...... FL ...... Historical and Current.

Within the Escambia River drainage, and the species may no longer occur in The fuzzy pigtoe is considered the fuzzy pigtoe is historically known the Alabama portions of the drainage. In vulnerable to extinction because of its from a total of 38 locations. It is the Choctawhatchee River drainage, the limited distribution and dwindling currently known from 20 of these number of locations that support fuzzy habitat by Garner et al. (2004, p. 101), locations, however, its status in the pigtoe populations has declined from 61 who classified it as a species of high Escambia drainage is difficult to assess to 54. At one site on Limestone Creek, conservation concern in Alabama. as 15 of the 18 remaining historical sites a once abundant population may have Williams et al. (1993, p. 11) considered have not be surveyed since 1995. The disappeared: A total of 56 individuals the fuzzy pigtoe a species of special fuzzy pigtoe is exceedingly rare in the was collected in 1988; only 3 were concern throughout its range. Yellow River drainage, where it is collected in 1993 by the same collector; Summary of Factors Affecting the known from a total of only five and none were collected during site Species localities. A single individual collected visits at the same location in 1996 and Section 4 of the Act and its in 2010 in the Florida portion of the 2011. Although the species still occurs implementing regulations at 50 CFR part main channel is the only recent record in much of its historic range in the 424, set forth the procedures for adding of the species in the drainage. Its range drainage, it may be extirpated from species to the Federal List of in the Yellow drainage has declined, localized areas. Endangered and Threatened Wildlife

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and Plants. Under section 4(a)(1) of the underwater surfaces); affect respiration, In 2009–2010, The Nature Act, we may list a species based on any growth, reproductive success, and Conservancy completed an inventory of the following five factors: (A) The behavior of aquatic insects and mussels; and prioritization of impaired sites in present or threatened destruction, and affect fish growth, survival, and the Yellow River watershed in Alabama modification, or curtailment of its reproduction (Waters 1995, pp. 173– and Florida (Herrington et al., in prep.). habitat or range; (B) overutilization for 175). Heavy sediment loads can destroy The study identified and quantified the commercial, recreational, scientific, or mussel habitat, resulting in a impacts of unpaved road crossings and educational purposes; (C) disease or corresponding shift in mussel fauna streambank instability and erosion predation; (D) the inadequacy of (Brim Box and Mossa 1999, p. 100). within the river corridor and riparian existing regulatory mechanisms; and (E) Excessive sedimentation can lead to zone, to assess impairments that could other natural or manmade factors rapid changes in stream channel impact the five species occurring in the affecting its continued existence. Listing position, channel shape, and bed drainage. A total of 339 unpaved roads actions may be warranted based on any elevation (Brim Box and Mossa 1999, p. and approximately 209 river miles of of the above threat factors, singly or in 102). Sedimentation has also been mainstem and tributaries were assessed combination. Each of these factors is shown to impair the filter feeding ability using standardized methods. Out of discussed below. of mussels. When in high silt these, 409 sites ranked ‘‘High’’ or A. The Present or Threatened environments, mussels may keep their ‘‘Moderate’’ in risk of excessive Destruction, Modification, or valves closed more often, resulting in sedimentation according to the Curtailment of Its Habitat or Range reduced feeding activity (Ellis 1936, p. Sediment Risk Index. Many of the 30); and high amounts of suspended impaired sites (149) were located The habitats of freshwater mussels are sediments can dilute their food source upstream of known mussel locations. In vulnerable to water quality degradation (Dennis 1984, p. 212). Increased addition, habitat conditions were and habitat modification from a number turbidity from suspended sediment can characterized at 44 known mussel of activities associated with modern reduce or eliminate juvenile mussel locations; the sites were scored civilization. The primary cause of the recruitment (Negus 1966, p. 525; Box numerically and rated as poor, fair, decline of these eight mussels has been and Mossa 1999, pp. 101–102). Many good, or excellent. The majority of the the modification and destruction of mussel species use visual cues to attract mussel sites were assessed to be either their stream and river habitat, with host fishes; such a reproductive strategy fair or poor. Most of these locations sedimentation as the leading cause. depends on clear water. For example, were within the vicinity of bridge Their stream habitats are subject to increased turbidity may impact the crossings and boat ramps and several, pollution and alteration from a variety southern sandshell life cycle by particularly in the Shoal River in of sources including adjacent land use reducing the chance that a sight-feeding Florida, were directly downstream of activities, effluent discharges, and host fish will encounter the visual highly impaired unpaved road and river impoundments. Nonpoint-source pollution from land display of its superconglutinate lure corridor sites. In summary, the study surface runoff originates from virtually (Haag et al. 1995, p. 475; Blalock-Herod found the threat of sedimentation and all land use activities and includes et al. 2002, p. 1885). If the habitat degradation is high throughout sediments, fertilizer, herbicide and superconglutinate is not encountered by the Yellow River watershed with over pesticide residues; animal wastes; septic a host within a short time period, the 75 percent of sites assessed exhibiting tank leakage and gray water discharge; glochidia will become nonviable high or moderate risk, and the majority and oils and greases. Current activities (O’Brien and Brim Box 1999, p. 133). of known mussel locations impaired. and land uses that can negatively affect Also, evidence suggests that Potential sediment sources within a populations of these eight mussels conglutinates of the southern watershed include virtually any activity include unpaved road crossings, kidneyshell, once released from the that disturbs the land surface. Current improper silviculture and agriculture female mussel, must adhere to hard sources of sand, silt, and other sediment practices, highway construction, surfaces in order to be seen by its fish accumulation in south-central Alabama housing developments, pipeline host. If the surface becomes covered in and western Florida stream channels crossings, and cattle grazing. These fine sediments, the conglutinate cannot include unpaved road runoff, activities can result in physical attach and is swept away (Hartfield and agricultural lands, timber harvest, disturbance of stream substrates or the Hartfield 1996, p. 373). livestock grazing, and construction and riparian zone, excess sedimentation and Biologists conducting mussel surveys other development activities (Williams nutrification, decreased dissolved within the drainages have reported and Butler 1994, p. 55; Bennett 2002, p. oxygen concentration, increased acidity observations of excessive sedimentation 5 and references therein; Hoehn 1998, and conductivity, and altered flow. in the streams and rivers of the three pp. 46–47 and references therein). The Limited range and low numbers make basins. While searching for the Alabama Choctawhatchee, Pea, and Yellow these eight mussels vulnerable to land pearlshell in headwater streams of the Rivers Watershed Management Plan use changes that would result in Conecuh and Alabama drainages, D. N. (CPYRWMP) and the Conecuh– increases in nonpoint-source pollution. Shelton (1996, pp. 1–5 in litt.) reported Sepulga–Blackwater Rivers Watershed Sedimentation is one of the most many streams within the study area had Protection Plan (CSBRWPP) document significant pollution problems for experienced heavy siltation, and that all water quality impairments to the aquatic organisms (Williams and Butler species of mollusks appeared to be Alabama portions of the watersheds. 1994, p. 55), and has been determined adversely affected. M. M. Gangloff Both plans identify elevated levels of to be a major factor in mussel declines (Gangloff and Hartfield 2009, p. 253) sediment as one of the primary causes (Ellis 1936, pp. 39–40). Impacts observed large amounts of sand and silt of impairment (CPYRWMP, p. 156; resulting from sediments have been in the mainstem Pea and CSBRWPP, p. 110). In the noted for many components of aquatic Choctawhatchee rivers during a 2006– Choctawhatchee and Yellow river communities. For example, sediments 2007 survey, and considered this a drainages, four out of the nine streams have been shown to abrade or suffocate possible reason for the decline of in which sediment loads were periphyton (organisms attached to mussels in the drainage. calculated by the Geological Survey of

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Alabama had significant sediment mussel experts often report chemical bodies are placed on the State’s 303(d) impairment (CPYRWMP, p. 157). In contaminants as factors limiting to list, and a total maximum daily load Alabama, runoff from unpaved roads unionids (Richter et al. 1997, pp. 1081– (TMDL) must be developed for the and roadside gullies is considered the 1093). They note high sensitivity of pollutant of concern. A TMDL is an main source of sediment transported early life stages to contaminants such as estimate of the total load of pollutants into the streams of the drainages chlorine (Wang et al. 2007 pp. 2039– that a segment of water can receive (Bennett 2002, p. 5 and references 2046), metals (Keller and Zam 1991, p. without exceeding applicable water therein; CPYRWMP, p. 145). Unpaved 542; Jacobson et al. 1993, pp. 879–883), quality criteria. Alabama’s 303(d) list roads are constructed primarily of sandy ammonia (Augspurger et al. 2003, pp. identifies a total of 25 impaired stream materials and are easily eroded and 2571–2574; Wang et al. 2007 pp. 2039– segments within the Escambia, Yellow, transported to stream corridors. In 2046), and pesticides (Bringolf et al. and Choctawhatchee River basins that addition, certain silvicultural and 2007a,b pp. 2089–2092, pp. 2096–2099). either support populations of the eight agricultural activities cause erosion, Pesticide residues from agricultural, species or that flow into streams that riparian buffer degradation, and residential, or silvicultural activities support them. The list identifies metals increased sedimentation. Uncontrolled enter streams mainly by surface runoff. (mercury and lead), organic enrichment, access to small streams by cattle can Agricultural crops locally grown within pathogens, siltation, excess nutrients, or result in destruction of riparian the range of these mussels associated unknown toxicity as reasons for vegetation, bank degradation and with high pesticide use include cotton, impairment (ADEM 2010a, pp. 4–8). erosion, and localized sedimentation of peanuts, corn, and soybeans. Chlorine, Various potential point and non-point stream habitats. metals, and ammonia are common pollution sources are identified, such as Land surface runoff also contributes constituents in treated effluent from atmospheric deposition, pasture grazing, nutrients (for example, nitrogen and municipal and industrial wastewater feedlots, municipal, industrial, urban phosphorus from fertilizers, sewage, and treatment facilities. A total of 62 runoff, agriculture, and land animal manure) to rivers and streams, municipal and 39 industrial wastewater development. Florida’s 303(d) list causing them to become eutrophic. treatment facilities are permitted in identifies a total of 22 impaired stream Excessive nutrient input stimulates Alabama and Florida to discharge segments within the basins that either excessive plant growth (algae, treated effluent into surface waters of support populations of seven of the periphyton attached algae, and nuisance the three river drainages (FDEP 2010b; species (the Alabama pearlshell does plants). This enhanced plant growth can ADEM 2010c). not occur in Florida) or that flow into cause dense mats of filamentous algae States maintain water-use streams that support them. The list that can expose juvenile mussels to classifications through issuance of identifies coliform bacteria, low entrainment or predation and be National Pollutant Discharge dissolved oxygen (nutrients), and detrimental to the survival of juvenile Elimination System (NPDES) permits to mercury (in fish tissue) as reasons for mussels (Hartfield and Hartfield 1996, industries, municipalities, and others inclusion (FDEP 2010a, pp. 4–6). p. 373). Excessive plant growth can also that set maximum limits on certain While the negative effects of point- reduce dissolved oxygen in the water pollutants or pollutant parameters. The source discharges on aquatic when dead plant material decomposes. Alabama Department of Environmental communities in Alabama and Florida In a review of the effects of Management (ADEM) has designated the have been reduced over time by eutrophication on mussels, Patzner and water use classification for most compliance with State and Federal Muller (2001, p. 329) noted that portions of the Escambia, Yellow, and regulations pertaining to water quality, stenoecious (narrowly tolerant) species Choctawhatchee Rivers as ‘‘Fish and there has been less success in dealing disappear as waters become more Wildlife’’ (F&W), and a few portions with nonpoint-source pollution impacts. eutrophic. They also refer to studies that (mostly lakes) as ‘‘Swimming’’ (S). The Because these contaminant sources stem associate increased levels of nitrate with F&W designation establishes minimum from urban surface runoff, private the decline and absence of juvenile water quality standards that are believed landowner activities (construction, mussels (Patzner and Muller 2001, pp. to protect existing species and water grazing, agriculture, silviculture), and 330–333). Filamentous algae may also uses like fishing and recreation within public construction works (bridge and displace certain species of fish, or the designated area, while the S highway construction and otherwise affect fish–mussel classification establishes higher water maintenance), they are often more interactions essential to recruitment (for quality standards that are protective of difficult to regulate. example, Hartfield and Hartfield 1996, human contact with the water. The The damming of rivers has been a p. 373). Nutrient sources include Florida Department of Environmental major factor contributing to the demise fertilizers applied to agricultural fields Protection (FDEP) classifies all three of freshwater mussels (Bogan 1993, p. and lawns, septic tanks, and municipal river drainages as Class III waters. The 604). Dams eliminate or reduce river wastewater treatment facilities. Class III designation establishes flow within impounded areas, trap silts Because of their sedentary minimum water quality standards that and cause sediment deposition, alter characteristics, mussels are extremely are believed to protect species and uses water temperature and dissolved oxygen vulnerable to toxic effluents (Sheehan et such as recreation. The Choctawhatchee levels, change downstream water flow al. 1989, pp. 139–140; Goudreau et al. and Shoal Rivers are also designated as and quality, affect normal flood 1993, pp. 216–227; Newton 2003, p. Outstanding Florida Waters (OFW) by patterns, and block upstream and 2543). Descriptions of localized the State of Florida. The designation downstream movement of mussels and mortality have been provided for prevents the discharge of pollutants, their host fishes (Bogan 1993, p. 604; chemical spills and other discrete point- which would lower existing water Vaughn and Taylor 1999, pp. 915–917; source discharges; however, rangewide quality or significantly degrade the Watters 1999, pp. 261–264; McAllister decreases in mussel density and OFW. et al. 2000, p. iii; Marcinek et al. 2005, diversity may result from the more Section 303(d) of the Clean Water Act pp. 20–21). Below dams, mollusk insidious effects of chronic, low-level requires States to identify waters that do declines are associated with changes contamination (Newton 2003, p. 2543, not fully support their designated use and fluctuation in flow regime, scouring Newton et al. 2003, p. 2554). Freshwater classification. These impaired water and erosion, reduced dissolved oxygen

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levels, water temperatures, and changes which alters the normal temperature commercial mussel species. Although in resident fish assemblages (Williams cycle downstream (Williams et al. 2000 the eight species have been taken for et al. 1993, p. 7; Neves et al. 1997, pp. unpub. data). scientific and private collections in the 63–64; Watters 1999, pp. 261–264; The potential exists for more dams to past, collecting is not considered a Marcinek et al. 2005, pp. 20–21). be constructed within the three factor in the decline of these species. Because rivers are linear systems, these drainages, and at least four additional Such activity may increase as their alterations can cause mussel declines impoundments are proposed. These rarity becomes known; however, we for many miles below the dam (Vaughn include proposed impoundments on have no specific information indicating and Taylor 1999, p. 916). Murder Creek and Big Escambia Creek that overcollection is currently a threat. Three significant mainstem in the Escambia drainage in Alabama, Therefore, we find that overutilization impoundments are situated within the the Yellow River mainstem in Florida, for commercial, recreational, scientific, three drainages, all in Alabama. and the Little Choctawhatchee River in or educational purposes is not a threat Constructed in 1923 for hydroelectric Alabama. These proposed projects have to the eight mussels at this time. power generation, Point A Lake and implications for the populations of all Gantt Lake dams are located on the eight species. Given projected C. Disease or Predation mainstem of the Conecuh River in population increases and the need for Diseases of freshwater mussels are Covington County, AL. Combined, these municipal water supply, other proposals poorly known, and we have no specific two dams impound approximately 3,400 for impoundment construction are information indicating that disease acres at normal pool. Both expected in the future. poses a threat to populations of these impoundments have limited storage In summary, the loss of habitat and eight species. Juvenile and adult capacity and are operated as modified range from various forms of pollution mussels are prey items for some run-of-river projects with daily peaking. and impoundments is a significant invertebrate predators and parasites (for For example, when inflows to Gantt are threat to the continued existence of example, nematodes and mites), and greater than 1,500 cubic feet per second these eight species. Degradation from provide prey for a few vertebrate species (cfs), the outflow matches the inflow at sedimentation and contaminants (for example, raccoons, muskrats, otters, Point A. However, during the summer threatens the habitat and water quality and turtles) (Hart and Fuller 1974, months, when inflows can fall below necessary to support these species pp. 225–240). However, we have no 1,500 cfs, a portion of the inflow may throughout their entire range. evidence of any specific declines in be stored and released when power Sedimentation can cause mortality by these species due to predation. generation is in high demand. suffocation, impair the ability to feed, Therefore, diseases and predation of Regardless of the inflow, Point A Dam respire, and reproduce; and destabilize freshwater mussels remain largely has a minimum continuous discharge substrate. Contaminants associated with unstudied and are not considered a requirement of 500 cfs and a municipal and industrial effluents threat to the eight mussels at this time. (metals, ammonia, chlorine) and with requirement to meet a dissolved oxygen D. The Inadequacy of Existing agriculture and silviculture (pesticides) level of no less than 4.0 milligram per Regulatory Mechanisms liter (mg/l). are lethal to mussels particularly to the The Elba Dam on the Pea River highly sensitive early life stages. The There is no information on the mainstem in Alabama was constructed effects of impoundments are more sensitivity of the Alabama pearlshell, in 1903 for power generation, but is no discreet, but can cause severe round ebonyshell, southern kidneyshell, longer in use. The dam does not store alternations to mussel habitat both southern sandshell, Choctaw bean, water, so outflow basically equals upstream and downstream of the dam, tapered pigtoe, narrow pigtoe, or fuzzy inflow. The Elba Dam does not have a and can impair dispersal and breeding pigtoe to aquatic pollutants. Current reservoir, only a widened channel, ability. While recent surveys for these State and Federal regulations regarding which is roughly one and a half to two species have documented several new pollutants are designed to be protective times wider above the dam than below. populations, they have also documented of aquatic organisms; however, Channel scour (deepening of the a decline in (and the loss of) many of freshwater mussels may be more streambed as a result of erosion) is the known populations due to human susceptible to some pollutants than test occurring downstream of the Elba Dam impact. Therefore, we have determined organisms commonly used in bioassay (Williams 2010 pers. comm.). All three that the present or threatened tests. A multitude of bioassay tests dams are barriers to fish migration and destruction, modification, or conducted on 16 mussel species to the movement of mussel host species. curtailment of habitat and range is a (summarized by Augspurger et al. 2007, By blocking fish movement, the dams threat of high magnitude to the Alabama pp. 2025–2028), show that freshwater prevent gene exchange between pearlshell, round ebonyshell, southern mussels are more sensitive than upstream and downstream mussel kidneyshell, southern sandshell, and previously known to some chemical populations. The three dams currently Choctaw bean; and a threat of moderate contaminants including chlorine, separate populations of southern magnitude to the tapered pigtoe, narrow ammonia, copper, the pesticides sandshell, southern kidneyshell, pigtoe, and fuzzy pigtoe. This threat is chlorothalonil and glyphosate, and the Choctaw bean, tapered pigtoe, and fuzzy current (as evidenced by population surfactant MON 0818. For example, pigtoe. In addition, two smaller declines) and is projected to continue several recent studies have impoundments are located on tributary and increase into the future with demonstrated that U.S. Environmental streams. Lake Frank Jackson is situated additional anthropogenic pressures. Protection Agency (EPA) criteria for on Lightwood Knot Creek, a tributary to ammonia may not be protective of the Yellow River in Covington County, B. Overutilization for Commercial, freshwater mussels (Augspurger et al. Alabama; and Lake Tholocco, on Recreational, Scientific, or Educational 2003, p. 2571; Newton et al. 2003, Claybank Creek, is a tributary to the Purposes pp. 2559–2560; Mummert et al. 2003, Choctawhatchee River in Dale County, None of the eight mussels are pp. 2548–2552). AL. Waters released from these shallow commercially valuable species, and the Ammonia is an important aquatic impoundments can have extremely streams and rivers that they inhabit are pollutant because of its relatively high elevated temperatures in summer, not subject to harvesting activities for toxicity and common occurrence in

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riverine systems. This has application to E. Other Natural or Manmade Factors causes of mortality in the species is due the expected sources of these chemicals Affecting Its Continued Existence to stranding by extreme low water. in the environment. Significant sources There is a growing concern that Random Catastrophic Events of nutrient enrichment leading to climate change may lead to increased elevated ammonia include industrial The Gulf coastal region is prone to frequency of severe storms and droughts wastewater, municipal wastewater extreme hydrologic events. Extended (McLaughlin et al. 2002, p. 6074; treatment plant effluents, and urban and droughts result from persistent high- Golladay et al. 2004, p. 504; Cook et al. agricultural runoff (chemical fertilizers pressure systems, which inhibit 2004, p. 1015). Specific effects of and animal wastes) (Augspurger et al. moisture from the Gulf of Mexico from climate change to mussels, their habitat, 2007, p. 2026). Elevated copper in reaching the region (Jeffcoat et al. 1991, and their fish hosts could include surface waters can result from natural p. 163–170). Warm, humid air from the changes in stream temperature regimes, runoff sources, but is more often Gulf of Mexico can produce strong the timing and levels of precipitation associated with a private or municipal frontal systems and tropical storms causing more frequent and severe floods wastewater effluent. Pesticide residues resulting in heavy rainfall and extensive and droughts, and alien species enter streams from agricultural, flooding (Jeffcoat et al. 1991, p. 163– introductions. Increases in temperature residential, or silvicultural runoff. 170). Although floods and droughts are and reductions in flow may also lower Environmental chlorine concentrations a natural part of the hydrologic dissolved oxygen levels in interstitial will most often be associated with a processes that occur in these river habitats which can be lethal to juveniles point source discharge such as a systems, these events may contribute to (Sparks and Strayer 1998, pp. 131–133). Effects to mussel populations from these municipal wastewater treatment facility. the further decline of mussel populations suffering the effects of other environmental changes could include As indicated in the Factor A threats. reduced abundance and biomass, discussion above, sedimentation is During high flows, flood scour can altered species composition, and host considered the most significant threat to fish considerations (Galbraith et al. these eight species. Best Management dislodge mussels where they may be injured, buried, swept into unsuitable 2010, pp. 1180–1182). The present Practices (BMPs) for sediment and habitats, or stranded and perish when conservation status, complex life erosion control are often recommended flood waters recede (Vannote and histories, and specific habitat or required for construction projects, Minshall 1982, p. 4105; Tucker 1996, requirements of freshwater mussels however, compliance, monitoring, and suggest that they may be quite sensitive p. 435; Hastie et al. 2001, pp. 107–115; enforcement of these recommendations to climate change (Hastie et al. 2003, Peterson et al. 2011, unpaginated). are often poorly implemented. Although p. 45). Heavy spring rains in 2009 resulted in unpaved roads likely contribute the The linear nature of their habitat, severe flooding in the basins that majority of sediment to the river basins, reduced range, and small population destroyed numerous stream crossings. other sources including forestry, row sizes make these eight mussels crops, and construction contribute to During drought, stream channels may vulnerable to contaminant spills. Spills the total sediment load. become disconnected pools where as a result of transportation accidents mussels are exposed to higher water States are required under the Clean are a constant, potential threat as temperatures, lower dissolved oxygen numerous highways and railroads cross Water Act to establish a TMDL for the levels, and predators; or channels may pollutants of concern that the water the stream channels of the basins. Also, become dewatered entirely. Johnson et more than 400 oil wells are located body can receive without exceeding the al. (2001, p. 6) monitored mussel applicable standard (see discussion within Conecuh and Escambia Counties, responses during a severe drought in Alabama. In Conecuh County, most of under Factor A). However, the Federal 2000 in tributaries of the Lower Flint Clean Water Act is not fully utilized in these wells are concentrated in the River in Georgia, and found that most Cedar Creek drainage, which supports at the protection of these river systems. mortality occurred when dissolved least two populations of the Alabama For example, of the 51 impaired water oxygen levels dropped below 5 mg/L. pearlshell. These wells are subject to bodies identified within the drainages, Furthermore, increased human demand periodic spills either directly at the well less than one-fourth currently have and competition for surface and ground site or associated with the transport of approved TMDLs (ADEM 2010b, pp. 3– water resources for irrigation and the oil. For example, on February 5, 6; FDEP 2010a, pp. 4–6). consumption during drought can cause 2010, an oil spill occurred in the In summary, some regulatory drastic reductions in stream flows and headwaters of Feagin Creek. Feagin mechanisms exist that protect aquatic alterations to hydrology (Golladay et al. Creek is located between two known species, however, these regulations are 2004, p. 504; Golladay et al. 2007 pearlshell locations, Little Cedar and not effective at protecting mussels and unpaginated). Extended droughts Amos Mill Creeks. The resulting spill their habitats from sedimentation and occurred in the Southeast during 1998 discharged more than 150 gallons of oil contaminants. This is apparent from the to 2002 and again in 2006 to 2008. The into Feagin Creek. Although there were decline in all eight mussels. Pollution effects of these recent droughts on these no known populations of the pearlshell from non-point sources is the greatest eight mussels are unknown; however, in Feagin Creek, this type of spill could threat to these eight mussels (see Factor substantial declines in mussel diversity have easily occurred in one of the A discussion); however, this type of and abundance as a direct result of adjacent watersheds that supports the pollution is difficult to regulate and not drought have been documented in pearlshell. Since 2000, there have been effectively controlled by State and southeastern streams (for example, 13 spills reported in Conecuh, 36 in Federal water quality regulations within Golladay et al. 2004, pp. 494–503; Haag Escambia, and 33 in Covington the proposed designation. Therefore, we and Warren 2008, p. 1165). The Counties, Alabama. find current existing regulatory Alabama pearlshell is particularly at mechanisms are inadequate to protect risk during drought as its headwater Reduced Genetic Diversity the eight mussels throughout their stream habitats are vulnerable to Population fragmentation and ranges. This threat is current and is dewatering. Shelton (1995, p. 4 unpub. isolation prohibits the natural projected to continue into the future. data) reported one of the most common interchange of genetic material between

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populations. Low numbers of competitively excluded the native currently experiencing a loss of genetic individuals within the isolated mussels, or if it was simply tolerant of viability; however, their restricted or populations have greater susceptibility whatever caused the mussels to reduced ranges, fragmented habitats, to deleterious genetic effects, including disappear. The Asian clam may pose a and small population sizes increases the inbreeding depression and loss of direct threat to native mussels, risks and consequences of inbreeding genetic variation (Lynch 1996, pp. 493– particularly as juveniles, as a competitor depression and loss of genetic variation. 494). Small, isolated populations, for resources such as food, nutrients, Introduced species, such as the Asian therefore, are more susceptible to and space (Neves and Widlak 1987, p. clam, may adversely impact these environmental pressures, including 6). Dense populations of Asian clams mussels through direct competition for habitat degradation and stochastic may ingest large numbers of unionid resources. Another introduced species, events, and thus are the most sperm, glochidia, and newly the flathead catfish, may consume host susceptible to extinction (Primack 2008, metamorphosed juveniles, and may fishes, thereby affecting mussel pp. 151–153). It is unknown if any of actively disturb sediments, reducing recruitment. Therefore, we have the eight mussel species are currently habitable space for juvenile native determined that other natural or experiencing a loss of genetic diversity. mussels, or displacing them manmade factors, specifically threats However, surviving populations of the downstream (Strayer 1999, p. 82; Yeager from flooding, drought, and Alabama pearlshell, round ebonyshell, et al. 2000, pp. 255–256). contaminant spills, are high in and southern kidneyshell do have The flathead catfish (Pylodictis magnitude to the Alabama pearlshell, highly restricted or reduced ranges, olivaris) has been introduced to the round ebonyshell, southern kidneyshell, fragmented habitats, and extremely drainages and may be adversely southern sandshell, and Choctaw bean; small population sizes. impacting native fish populations. The and are moderate in magnitude to the flathead catfish is a large predator native tapered pigtoe, narrow pigtoe, and fuzzy Host Fish Considerations to the central United States, and since pigtoe. These threats are currently As mentioned in the General Biology its introduction outside its native range impacting these species and are section above, all of these eight species has altered the composition of native projected to continue or increase in the require a fish host in order to complete fish populations through predation future. We have determined that threats their life cycle. Therefore, these mussels (Boschung and Mayden 2004, p. 350). from the Asian clam are moderate in would be adversely affected by the loss Diet and selectivity studies of magnitude to the Alabama pearlshell, or reduction of fish species essential to introduced flathead catfish in coastal round ebonyshell, southern kidneyshell, their parasitic glochidial stage. The North Carolina river systems show it southern sandshell, and Choctaw bean; blacktail shiner (Cyprinella venusta), a feeds primarily on other fish species and are low in magnitude to the tapered common and abundant fish species, was (Guier et al. 1984, pp. 617–620; Pine et pigtoe, narrow pigtoe, and fuzzy pigtoe. found to serve as a glochidial host for al. 2005, p. 909). The flathead catfish is We have determined that reduced the tapered pigtoe and fuzzy pigtoe now well-established in the Escambia, genetic diversity, the absence or (White et al. 2008, p. 123). The specific Yellow, and Choctawhatchee River reduction of fish hosts, and the presence hosts for the Alabama pearlshell, round drainages, and its numbers appear to be of flathead catfish have the potential to ebonyshell, southern sandshell, growing (Strickland 2010 pers. comm.). adversely impact the eight mussels, southern kidneyshell, Choctaw bean, Biologists working in the Florida however, we do not know the and narrow pigtoe have not been portions of these drainages have magnitude of these threats at this time. identified, however, other species of the observed a correlation between the same genera are known to parasitize increase in flathead catfish numbers and Proposed Determination cyprinids (minnows), centrachids a decrease in numbers of other native We have carefully assessed the best (sunfish), and percids (darters) (Haag fish species, particularly of bullhead scientific and commercial information and Warren 1997, pp. 580–581, 583; catfish (Ameiurus sp.) and redbreast available regarding the past, present, Keller and Ruessler 1997, p. 405; sunfish (Lepomis auritus) (Strickland and future threats to the Alabama O’Brien and Brim Box 1999, p. 134; 2010 pers. comm.). Although we do not pearlshell, round ebonyshell, southern Haag et al. 1999, p. 150; Haag and know the specific fish hosts for six of sandshell, southern kidneyshell, Warren 2003, pp. 81–82; Luo 1993, the mussel species, the loss or reduction Choctaw bean, tapered pigtoe, narrow p. 16). of native fishes in general could affect pigtoe, and fuzzy pigtoe. Section 3(6) of the Act defines an endangered species Nonindigenous Species their ability to recruit. In summary, a variety of natural or as ‘‘any species which is in danger of The Asian clam (Corbicula fluminea) manmade factors currently threaten extinction throughout all or a significant has been introduced to the drainages these eight mussels. Stochastic events portion of its range,’’ and defines a and may be adversely affecting these such as droughts and floods have threatened species as ‘‘any species eight mussels through direct occurred in these three river drainages which is likely to become an competition for space and resources. in the past, and climate change may endangered species within the The Asian clam was first detected in increase the frequency and intensity of foreseeable future throughout all or a eastern Gulf drainages in the early similar events in the future. The significant portion of its range.’’ As 1960s, and is presently wide-spread withdrawal of surface and ground described in detail above, these eight throughout the Escambia, Yellow, and waters during drought can cause further species are currently at risk throughout Choctawhatchee River drainages (Heard drastic flow reductions and alterations all of their respective ranges due to 1975, p. 2). The invasion of the Asian that may cause declines in mussel ongoing threats of habitat destruction clam in these and in other eastern Gulf abundance and distribution. and modification (Factor A), inadequacy drainages has been accompanied by Contaminant spills have also occurred of existing regulatory mechanisms drastic declines in populations of native in these drainages and currently are a (Factor D), and other natural or mussels (see observations by Heard threat, particularly in the Alabama manmade factors affecting their 1975, p. 2; and Shelton 1995, p. 4 portions of the Escambia River drainage continued existence (Factor E). unpub. data). However, it is difficult to where there are numerous oil wells. It Specifically, these factors include say whether the Asian clam is not known if these species are sedimentation, municipal and industrial

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effluents, pesticides, excessive propose to list the tapered pigtoe, on Federal lands administered by the nutrients, impoundment of stream narrow pigtoe, and fuzzy pigtoe as Department of Defense and U.S. Forest channels, recurring drought and threatened species throughout all of Service; issuance of section 404 Clean flooding, contaminant spills, and the their ranges. Furthermore, we examined Water Act permits by the Army Corps of introduced Asian clam. In addition, each of the five species proposed for Engineers; licensing of hydroelectric existing regulatory mechanisms are endangered status and each of the three dams, and construction and inadequate to ameliorate some of the species proposed for threatened status management of gas pipeline and power threats affecting these mussels and their to analyze if any significant portions of line rights-of-way approved by the habitats. We believe these threats are their ranges may warrant a different Federal Energy Regulatory Commission; currently impacting these species and status. However, because of their construction and maintenance of roads are projected to continue and limited and curtailed ranges, and or highways funded by the Federal potentially worsen in the future. These uniformity of the threats throughout Highway Administration; and land eight mussels are also at increased their entire respective, we find there are management practices administered by threat due to the loss of genetic viability no significant portions of any of the the Department of Agriculture. It has and the reduction or absence of fish species’ ranges that may warrant a been the experience of the Service from hosts (described under Factor E); different determination of status. consultations on other species, however, however, these threats are not currently that nearly all section 7 consultations Available Conservation Measures known to be imminent. have been resolved so that the species Species with small ranges, few Conservation measures provided to have been protected and the project populations, and small or declining species listed as endangered or objectives have been met. population sizes, are the most threatened under the Act include The Act and its implementing vulnerable to extinction (Primack 2008, recognition, recovery actions, regulations set forth a series of general p. 137). The effects of certain factors, requirements for Federal protection, and prohibitions and exceptions that apply particularly habitat degradation and prohibitions against certain practices. to all endangered wildlife. The loss, catastrophic events, and Recognition through listing results in prohibitions, codified at 50 CFR 17.21 introduced species, increase in public awareness and conservation by for endangered wildlife make it illegal magnitude when population size is Federal, State, and local agencies, for any person subject to the jurisdiction small (Soule´ 1987, pp. 33, 71; Primack private organizations, and individuals. of the United States to take (includes 2008, pp. 133–135, 152). We believe the The Act encourages cooperation with harass, harm, pursue, hunt, shoot, impact of habitat degradation, the States and requires that recovery wound, kill, trap, capture, or collect; or catastrophic events, and introduced actions be carried out for all listed to attempt any of these), import, export, species are more severe (magnitude is species. The protection measures ship in interstate commerce in the higher) to the Alabama pearlshell, round required of Federal agencies and the course of commercial activity, or sell or ebonyshell, southern sandshell, prohibitions against certain activities offer for sale in interstate or foreign southern kidneyshell, and Choctaw involving listed wildlife are discussed commerce any listed species. It is also bean, which have few populations in Effects of Critical Habitat Designation illegal to possess, sell, deliver, carry, coupled with low numbers of and are further discussed, in part, transport, or ship any such wildlife that individuals and/or very limited ranges, below. has been taken illegally. Certain than they are to the tapered pigtoe, Section 7(a) of the Act requires exceptions apply to agents of the narrow pigtoe, and fuzzy pigtoe which Federal agencies to evaluate their Service and State conservation agencies. have declining and fragmented actions with respect to any species that We may issue permits to carry out populations and limited ranges. We is proposed or listed as endangered or otherwise prohibited activities believe that, when combining the effects threatened and with respect to its involving endangered and threatened of historical, current, and future habitat critical habitat, if any is designated. wildlife species under certain loss and degradation, historical and Regulations implementing this circumstances. Regulations governing ongoing drought, and the exacerbating interagency cooperation provision of the permits are codified at 50 CFR 17.22 for effects of small and declining Act are codified at 50 CFR part 402. endangered species, and at 17.32 for population sizes and curtailed ranges, Section 7(a)(4) of the Act requires threatened species. With regard to the Alabama pearlshell, round Federal agencies to confer with the endangered wildlife, a permit must be ebonyshell, southern sandshell, Service on any action that is likely to issued for the following purposes: for southern kidneyshell, and Choctaw jeopardize the continued existence of a scientific purposes, to enhance the bean are in danger of extinction species proposed for listing or result in propagation or survival of the species, throughout all of their ranges; and the destruction or adverse modification of and for incidental take in connection tapered pigtoe, narrow pigtoe, and fuzzy proposed critical habitat. If a species is with otherwise lawful activities. pigtoe are threatened to become listed subsequently, section 7(a)(2) of It is our policy, as published in the endangered within the foreseeable the Act requires Federal agencies to Federal Register on July 1, 1994 (59 FR future throughout all of their ranges. In ensure that activities they authorize, 34272), to identify, to the maximum addition, any factor (i.e., habitat loss or fund, or carry out are not likely to extent practicable at the time a species natural and manmade factors) that jeopardize the continued existence of is listed, those activities that would or results in a further decline in habitat or the species or destroy or adversely would not constitute a violation of individuals may be problematic for the modify its critical habitat. If a Federal section 9 of the Act. The intent of this long-term recovery of these species. action may affect a listed species or its policy is to increase public awareness of Therefore, based on the best available critical habitat, the responsible Federal the effect of a proposed listing on scientific and commercial information, agency must enter into formal proposed and ongoing activities within we propose to list the Alabama consultation with the Service. the range of species proposed for listing. pearlshell, round ebonyshell, southern Federal agency actions that may affect The following activities could kidneyshell, southern sandshell, and the eight mussel species include, but are potentially result in a violation of Choctaw bean as endangered species not limited to: the management of and section 9 of the Act; this list is not throughout all of their ranges; and we any other landscape altering activities comprehensive:

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(1) Unauthorized collecting, handling, Conservation, as defined under conservation of the species (such as possessing, selling, delivering, carrying, section 3 of the Act, means to use and roost sites, nesting grounds, seasonal or transporting of the species, including the use of all methods and procedures wetlands, water quality, tide, soil type). import or export across State lines and that are necessary to bring an Primary constituent elements are the international boundaries, except for endangered or threatened species to the elements of physical or biological properly documented antique point at which the measures provided features that, when laid out in the specimens of these taxa at least 100 pursuant to the Act are no longer appropriate quantity and spatial years old, as defined by section 10(h)(1) necessary. Such methods and arrangement to provide for a species’ of the Act. procedures include, but are not limited life-history processes, are essential to (2) Introduction of nonnative species to, all activities associated with the conservation of the species. that compete with or prey upon these scientific resources management such as Under the Act, we can designate eight mussel species, such as the zebra research, census, law enforcement, critical habitat in areas outside the mussel (Dreissena polymorpha) and the habitat acquisition and maintenance, geographical area occupied by the black carp (Mylopharyngodon piceus). propagation, live trapping, and species at the time it is listed, upon a (3) The unauthorized release of transplantation, and, in the determination that such areas are biological control agents that attack any extraordinary case where population essential for the conservation of the life stage of these species. pressures within a given ecosystem species. We designate critical habitat in (4) Unauthorized modification of the cannot be otherwise relieved, may areas outside the geographical area channel or water flow of any stream or include regulated taking. occupied by a species only when a water body in which these species are Critical habitat receives protection designation limited to its range would known to occur. under section 7 of the Act through the Questions regarding whether specific be inadequate to ensure the requirement that Federal agencies conservation of the species. When the activities would constitute a violation of ensure, in consultation with the Service, section 9 of the Act should be directed best available scientific data do not that any action they authorize, fund, or demonstrate that the conservation needs to the Panama City Ecological Services carry out is not likely to result in the Field Office (see FOR FURTHER of the species require such additional destruction or adverse modification of areas, we will not designate critical INFORMATION CONTACT). Requests for critical habitat. The designation of copies of the regulations concerning habitat in areas outside the geographical critical habitat does not affect land area occupied by the species. An area listed animals and general inquiries ownership or establish a refuge, regarding prohibitions and permits may currently occupied by the species but wilderness, reserve, preserve, or other that was not occupied at the time of be addressed to the U.S. Fish and conservation area. Such designation Wildlife Service, Endangered Species listing may, however, be essential to the does not allow the government or public conservation of the species and may be Permits, 1875 Century Boulevard, Suite to access private lands. Such included in the critical habitat 200, Atlanta, GA 30345; telephone: 404– designation does not require designation. 679 –7140; facsimile: 404–679–7081. implementation of restoration, recovery, Section 4 of the Act requires that we Critical Habitat for the Alabama or enhancement measures by non- Federal landowners. Where a landowner designate critical habitat on the basis of Pearlshell, Round Ebonyshell, Southern the best scientific and commercial data Sandshell, Southern Kidneyshell, seeks or requests Federal agency funding or authorization for an action available. Further, our Policy on Choctaw Bean, Tapered Pigtoe, Narrow Information Standards Under the Pigtoe, and Fuzzy Pigtoe that may affect a listed species or critical habitat, the consultation Endangered Species Act (published in Background requirements of section 7(a)(2) would the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality It is our intent to discuss below only apply, but even in the event of a Act (section 515 of the Treasury and those topics directly relevant to the destruction or adverse modification General Government Appropriations designation of critical habitat for the finding, the obligation of the Federal Act for Fiscal Year 2001 (Pub. L. 106– Alabama pearlshell, round ebonyshell, action agency and the landowner is not 554; H.R. 5658)), and our associated southern sandshell, southern to restore or recover the species, but to Information Quality Guidelines, provide kidneyshell, Choctaw bean, tapered implement reasonable and prudent criteria, establish procedures, and pigtoe, narrow pigtoe, and fuzzy pigtoe alternatives to avoid destruction or provide guidance to ensure that our in this section of the proposed rule. adverse modification of critical habitat. Critical habitat is defined in section 3 For inclusion in a critical habitat decisions are based on the best scientific of the Act as: designation, the habitat within the data available. They require our (1) The specific areas within the geographical area occupied by the biologists, to the extent consistent with geographical area occupied by the species at the time it was listed must the Act and with the use of the best species, at the time it is listed in contain physical or biological features scientific data available, to use primary accordance with the Act, on which are which are essential to the conservation and original sources of information as found those physical or biological of the species and which may require the basis for recommendations to features special management considerations or designate critical habitat. (a) Essential to the conservation of the protection. Critical habitat designations When we are determining which areas species and identify, to the extent known using the should be designated as critical habitat, (b) Which may require special best scientific and commercial data our primary source of information is management considerations or available, those physical or biological generally the information developed protection; and features that are essential to the during the listing process for the (2) Specific areas outside the conservation of the species (such as species. Additional information sources geographical area occupied by the space, food, cover, and protected may include articles in peer-reviewed species at the time it is listed, upon a habitat), focusing on the principal journals, conservation plans developed determination that such areas are biological or physical constituent by States and counties, scientific status essential for the conservation of the elements (primary constituent elements) surveys and studies, biological species. within an area that are essential to the assessments, or other unpublished

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materials and expert opinion or information available at the time of (i) Information sufficient to perform personal knowledge. these planning efforts calls for a required analyses of the impacts of the Habitat is dynamic, and species may different outcome. designation is lacking, or move from one area to another over (ii) The biological needs of the species Prudency Determination time. Climate change will be a particular are not sufficiently well known to challenge for biodiversity because the Section 4(a)(3) of the Act, as permit identification of an area as interaction of additional stressors amended, and implementing regulations critical habitat. When critical habitat is associated with climate change and (50 CFR 424.12), require that, to the not determinable, the Act allows the current stressors may push species maximum extent prudent and Service an additional year to publish a beyond their ability to survive (Lovejoy determinable, the Secretary designate critical habitat designation (16 U.S.C. 2005, pp. 325–326). The synergistic critical habitat at the time the species is 1533(b)(6)(C)(ii)). implications of climate change and determined to be endangered or We reviewed the available habitat fragmentation are the most threatened. Our regulations (50 CFR information pertaining to the biological threatening facet of climate change for 424.12(a)(1)) state that the designation needs of the species and habitat biodiversity (Hannah and Lovejoy 2005, of critical habitat is not prudent when characteristics where these species are p. 4). Current climate change one or both of the following situations located. This and other information predictions for terrestrial areas in the exist: (1) The species is threatened by represent the best scientific data Northern Hemisphere indicate warmer taking or other human activity, and available and led us to conclude that the air temperatures, more intense identification of critical habitat can be designation of critical habitat is precipitation events, and increased expected to increase the degree of threat determinable for these eight species. summer continental drying (Field et al. to the species, or (2) such designation of 1999, pp. 1–3; Hayhoe et al. 2004, p. critical habitat would not be beneficial Physical and Biological Features 12422; Cayan et al. 2006, p. 10; to the species. In accordance with section 3(5)(A)(i) Intergovernmental Panel on Climate There is currently no imminent threat and 4(b)(1)(A) of the Act and the Change (IPCC) 2007, p. 1181). Climate of take attributed to collection or regulations at 50 CFR 424.12, in change may lead to increased frequency vandalism under Factor B for any of determining which areas within the and duration of severe storms and these species, and identification and geographical area occupied at the time droughts (Golladay et al. 2004, p. 504; mapping of critical habitat is not of listing to propose as critical habitat, McLaughlin et al. 2002, p. 6074; Cook expected to initiate any such threat. In we consider the physical and biological et al. 2004, p. 1015). the absence of finding that the features (PBFs) essential to the We recognize that critical habitat designation of critical habitat would conservation of the species which may designated at a particular point in time increase threats to a species, if there are require special management may not include all of the habitat areas any benefits to a critical habitat considerations or protection. These that we may later determine are designation, then a prudent finding is include, but are not limited to: necessary for the recovery of the warranted. Here, the potential benefits (1) Space for individual and species. For these reasons, a critical of designation include: (1) Triggering population growth and for normal habitat designation does not signal that consultation under section 7 of the Act, behavior; habitat outside the designated area is in new areas for actions in which there (2) Food, water, air, light, minerals, or unimportant or may not be needed for may be a Federal nexus where it would other nutritional or physiological recovery of the species. Areas that are not otherwise occur because, for requirements; important to the conservation of the example, it is or has become (3) Cover or shelter; species, both inside and outside the unoccupied or the occupancy is in (4) Sites for breeding, reproduction, or critical habitat designation, will question; (2) focusing conservation rearing (or development) of offspring; continue to be subject to: (1) activities on the most essential features and Conservation actions implemented and areas; (3) providing educational (5) Habitats that are protected from under section 7(a)(1) of the Act, (2) benefits to State or county governments disturbance or are representative of the regulatory protections afforded by the or private entities; and (4) preventing historic, geographical, and ecological requirement in section 7(a)(2) of the Act people from causing inadvertent harm distributions of a species. for Federal agencies to insure their to the species. Therefore, because we We derive the specific PBFs required actions are not likely to jeopardize the have determined that the designation of for the Alabama pearlshell, round continued existence of any endangered critical habitat will not likely increase ebonyshell, southern sandshell, or threatened species, and (3) the the degree of threat to the species and southern kidneyshell, Choctaw bean, prohibitions of section 9 of the Act if may provide some measure of benefit, tapered pigtoe, narrow pigtoe, and fuzzy actions occurring in these areas may we find that designation of critical pigtoe based on their biological needs. affect the species. Federally funded or habitat is prudent for the Alabama Unfortunately, little is known of the permitted projects affecting listed pearlshell, round ebonyshell, southern specific habitat requirements of any of species outside their designated critical sandshell, southern kidneyshell, these eight mussel species other than all habitat areas may still result in jeopardy Choctaw bean, tapered pigtoe, narrow require flowing water, stable stream or findings in some cases. These pigtoe, and fuzzy pigtoe. river channels, adequate water quality, protections and conservation tools will and fish hosts for larval mussel continue to contribute to recovery of Critical Habitat Determinability development to juvenile mussels. To this species. Similarly, critical habitat Having determined that designation is identify the physical and biological designations made on the basis of the prudent, under section 4(a)(3) of the Act needs of the species, we have relied on best available information at the time of we must find whether critical habitat for current conditions at locations where designation will not control the the eight species is determinable. Our each of the species survive, the limited direction and substance of future regulations at 50 CFR 424.12(a)(2) state information available on these eight recovery plans, habitat conservation that critical habitat is not determinable mussels and their close relatives, and plans (HCPs), or other species when one or both of the following factors associated with the decline and conservation planning efforts if new situations exist: extirpation of these and other freshwater

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mussels from portions of the Escambia, and viability during all life stages of densities and land uses. In general, each Yellow, and Choctawhatchee River these species. of the species survives in areas where basins. the magnitude, frequency, duration, and Water seasonality of water flow are adequate to Space for Individual and Population The Alabama pearlshell, round maintain stable habitats (for example, Growth and for Normal Behavior ebonyshell, southern kidneyshell, sufficient flow to remove fine particles The Alabama pearlshell, round southern sandshell, Choctaw bean, and sediments without causing ebonyshell, southern kidneyshell, tapered pigtoe, narrow pigtoe, and fuzzy degradation), and where water quality is southern sandshell, Choctaw bean, pigtoe are riverine species that depend adequate for year-round survival (for tapered pigtoe, narrow pigtoe, and fuzzy upon adequate water flow. example, moderate to high levels of pigtoe are all historically associated Continuously flowing water is a habitat dissolved oxygen, low to moderate with the Escambia, Yellow, and feature associated with all of the eight input of nutrients, and relatively Choctawhatchee River drainages in species. Flowing water maintains the unpolluted water and sediments). Alabama and Florida. The Alabama stream bottom habitats where these Therefore, adequate water flow and pearlshell is also known from three species are found, transports food items water quality (as defined below) are locations in the Mobile River Basin; to the sedentary juvenile and adult life essential to the conservation of the however, only one of those is stages, removes wastes, and provides Alabama pearlshell, round ebonyshell, considered to be currently occupied. oxygen for respiration. Populations of southern sandshell, southern the narrow pigtoe were recently The eight mussels are found embedded kidneyshell, Choctaw bean, tapered discovered in Gantt and Point A Lakes in stable substrates composed mainly of pigtoe, narrow pigtoe, and fuzzy pigtoe. (Williams et al. 2008, p. 317), manmade fine to coarse sand, with occasional We currently believe that most reservoirs on the Conecuh River patches of clay or gravel (Williams et al. numeric standards for pollutants and mainstem in Alabama. We attribute the 2008, pp. 32–34), and within areas of water quality parameters (for example, occurrence of the species in these sufficient current velocities to remove dissolved oxygen, pH, heavy metals) impoundments to the relatively small finer sediments. These habitats are that have been adopted by the States size of the reservoirs, and to the formed and maintained by water under the Clean Water Act represent operational regime of the dams. As quantity, channel slope, and normal levels that are essential to the mentioned in the Dams and sediment input to the system. Changes conservation of each of these eight Impoundments section (see Factor A, mussels. However, some States’ in one or more of these parameters can above), both impoundments have standards may not adequately protect result in channel degradation or channel limited storage capacity and are mollusks, or are not being appropriately aggradation, with serious effects to operated as modified run-of-river measured, monitored, or achieved in mussels. The decline of the mussel projects with daily peaking. Therefore, some reaches (see Factors A and D fauna of these eastern Gulf Coastal Plain most of the time, the outflow matches above). The Service is currently in drainages is not well understood, but is the inflow. Also, some areas in the consultation with the EPA to evaluate primarily associated with the loss of reservoirs are narrow and riverine, for the protectiveness of criteria approved habitats and channel instability due to instance the area around Dunns Bridge in EPA’s water quality standards for excessive sedimentation (Williams and on Gantt Lake. Here, narrow pigtoe were threatened and endangered species and Butler 1994, p. 55). Sedimentation has found in relatively high numbers in their critical habitats as described in the been determined to be a major factor in firm, stable sand substrates with little or Memorandum of Agreement that our habitat destruction, resulting in no silt accumulation (Williams 2009 agencies signed in 2001 (66 FR 11201, corresponding shift in mussel fauna pers. comm.; Pursifull 2006 pers. obs.). February 22, 2011). Other factors that (Brim Box and Mossa 1999, p. 102). Although the natural state of the river’s can potentially alter water quality are Stable stream bottom substrates not only hydrological flow regime is modified, it droughts and periods of low flow, non- provide space for populations of these does retain the features necessary to point-source runoff from adjacent land eight mussel species, but also provide maintain the benthic habitats where the surfaces (for example, excessive cover and shelter and sites for breeding, species are found. Therefore, we believe amounts of sediments, nutrients, and reproduction, and growth of offspring. that flowing water is essential to the pesticides), point-source discharges Stream channel stability is essential to conservation of all eight species. from municipal and industrial the conservation of the Alabama The ranges of standard physical and wastewater treatment facilities (for pearlshell, round ebonyshell, southern chemical water quality parameters (such example, excessive amounts of sandshell, southern kidneyshell, as temperature, dissolved oxygen, pH, ammonia, chlorine, and metals), and Choctaw bean, tapered pigtoe, narrow and conductivity) that define suitable random spills or unregulated discharge pigtoe, and fuzzy pigtoe. habitat conditions for the eight species events. This could be particularly Food have not been investigated. However, as harmful during drought conditions relatively sedentary animals, mussels when flows are depressed and Freshwater mussels, such as these must tolerate the full range of such pollutants are more concentrated. eight species, filter algae, detritus, and parameters that occur naturally within Therefore, adequate water quality is bacteria from the water column the streams where they persist. Both the essential for normal behavior, growth, (Williams et al. 2008, p. 67). For the first amount (flow) and the physical and and viability during all life stages of the several months, juvenile mussels chemical conditions (water quality) Alabama pearlshell, round ebonyshell, employ pedal (foot) feeding, extracting where each of the eight species southern sandshell, southern bacteria, algae, and detritus from the currently exist vary widely according to kidneyshell, Choctaw bean, tapered sediment (Yeager et al. 1994, pp. 217– season, precipitation events, and pigtoe, narrow pigtoe, and fuzzy pigtoe. 221). Food availability and quality are seasonal human activities within the affected by habitat stability, floodplain watershed. Conditions across their Sites for Breeding, Reproduction, or connectivity, flow, and water quality. historical ranges vary even more due to Rearing Adequate food availability and quality watershed size, geology, geography, and Freshwater mussels require a host fish is essential for normal behavior, growth, differences in human population for transformation of larval mussels

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(glochidia) to juvenile mussels southern kidneyshell, Choctaw bean, limited to, those discussed in the (Williams et al. 2008, p. 68). Thus, the tapered pigtoe, narrow pigtoe, and fuzzy ‘‘Summary of Factors Affecting the presence of the appropriate host fishes pigtoe are: Species,’’ above (see Factors A and D). to complete the reproductive life cycle (1) Geomorphically stable stream and Other activities that may affect PCEs in is essential to the conservation of these river channels and banks (channels that the proposed critical habitat units eight mussels. The blacktail shiner was maintain lateral dimensions, include those listed in the ‘‘Available found to serve as a host for the fuzzy longitudinal profiles, and sinuosity Conservation Measures’’ section above. pigtoe and tapered pigtoe in a patterns over time without an aggrading Many of the threats to the eight preliminary study trial (White et al. or degrading bed elevation). mussels and their habitat are pervasive 2008, p. 123). This minnow species (2) Stable substrates of sand or and common in all of the nine units. occurs in a variety of habitats in mixtures of sand with clay or gravel These include the potential of drainages throughout the coastal plain with low to moderate amounts of fine significant changes in stream bed (Mettee et al. 1996, pp. 174–175). The sediment and attached filamentous material composition and quality by specific host fish(es) for the Alabama algae. activities such as construction projects, pearlshell, round ebonyshell, southern (3) A hydrologic flow regime (the livestock grazing, timber harvesting, and kidneyshell, narrow pigtoe, southern magnitude, frequency, duration, and other watershed and floodplain sandshell, and Choctaw bean is seasonality of discharge over time) disturbances that release sediments or currently unknown; however, other necessary to maintain benthic habitats nutrients into the water; the potential of species of the same genera are known to where the species are found, and to significant alteration of water chemistry parasitize cyprinids (minnows), maintain connectivity of rivers with the or water quality; the potential of centrachids (sunfish), and percids floodplain, allowing the exchange of anthropogenic activities such as (darters) (Haag and Warren 2003, pp. nutrients and sediment for habitat channelization, impoundment, and 81–82; Haag and Warren 1997, pp. 580– maintenance, food availability, and channel excavation that could cause 581, 583; Keller and Ruessler 1997, p. spawning habitat for native fishes. aggradation or degradation of the 405; O’Brien and Brim Box 1999, p. 134; (4) Water quality, including channel bed elevation or significant ° Haag et al. 1999, p. 150). temperature (not greater than 32 C), pH bank erosion; and the potential of Juvenile mussels require stable (between 6.0 to 8.5), oxygen content (not significant changes in the existing flow bottom habitats for growth and survival. less than 5.0 mg/L), hardness, turbidity, regime due to such activities as Excessive sediments or dense growth of and other chemical characteristics impoundment, water diversion, or water filamentous algae can expose juvenile necessary for normal behavior, growth, withdrawal. Because the areas proposed mussels to entrainment or predation and and viability of all life stages. for critical habitat below are facing these be detrimental to the survival of (5) The presence of fish hosts. Diverse threats, they require special juvenile mussels (Hartfield and assemblages of native fish species will management consideration and Hartfield 1996, p. 373). Geomorphic serve as a potential indication of host protection. instability can result in the loss of fish presence until appropriate host Criteria Used To Identify Critical habitats and juvenile mussels due to fishes can be identified. For the fuzzy Habitat scouring or deposition (Hartfield 1993, pigtoe and tapered pigtoe, the presence p. 138). Therefore, stable bottom of blacktail shiner (Cyprinella venusta) As required by section 4(b) of the Act, substrate with low to moderate amounts will serve as a potential indication of we used the best scientific and of filamentous algae growth is essential fish host presence. commercial data available in determining areas within the to the conservation of Alabama Special Management Considerations or geographical area occupied at the time pearlshell, round ebonyshell, southern Protection sandshell, southern kidneyshell, of listing that contain the features Choctaw bean, tapered pigtoe, narrow When designating critical habitat, we essential to the conservation of the pigtoe, and fuzzy pigtoe. assess whether the specific areas within species, and areas outside of the the geographical area occupied by the geographical area occupied at the time Primary Constituent Elements for the species at the time of listing contain of listing that are essential for the Eight Mussel Species features that are essential to the conservation of the species. We are Under the Act and its implementing conservation of the species and that may proposing to designate as critical habitat regulations, we are required to identify require special management all stream channels that we have the PBFs essential to the conservation of considerations or protections. None of determined are essential to the these eight mussel species in areas the portions of the critical habitat units conservation of the eight species. These occupied at the time of listing, focusing proposed for these eight species below include streams that are currently on the features’ primary constituent have been designated as critical habitat occupied by one or more of the species, elements (PCEs). We consider PCEs to for other mussel species that are already as well as some specific areas not be the elements of PBFs that, when laid listed under the Act. None of the areas currently occupied, but that were out in the appropriate quantity and proposed are presently under special historically occupied, because we have spatial arrangement to provide for a management or protection provided by determined that the additional areas are species’ life-history processes, are a legally operative management plan or essential for the conservation of those essential to the conservation of the agreement for the conservation of either species and that designating only species. the Alabama pearlshell, round occupied habitat is not sufficient to Based on the above needs and our ebonyshell, southern sandshell, conserve them. current knowledge of the life history, southern kidneyshell, Choctaw bean, We began our analysis by considering biology, and ecology of the species and tapered pigtoe, narrow pigtoe, or fuzzy historical and current ranges of each of the habitat requirements for sustaining pigtoe. Various activities in or adjacent the eight species. We used various the essential life-history functions of the to each of the critical habitat units sources including published literature species, we have determined that the described in this proposed rule may and museum collection databases, as PCEs for the Alabama pearlshell, round affect one or more of the PCEs. Some of well as surveys, reports, and field notes ebonyshell, southern sandshell, these activities include, but are not prepared by biologists (see Background

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section). We then identified the specific reach between the uppermost and potential human-induced events (see areas that are occupied by each of the lowermost locations as occupied ‘‘Summary of Factors Affecting the eight mussels and that contain one or habitat. Species’’). The inclusion of essential more of the PCEs. We defined occupied We then considered whether this unoccupied areas will provide habitat habitat as those stream reaches known essential area was adequate for the for population reintroduction and will to be currently occupied by any of the conservation of each of the eight decrease the risk of extinction. Based on eight species. To identify the currently species. Small, isolated, aquatic the best scientific data available, we occupied stream reaches, we used post- populations are subject to chance believe areas not currently occupied by 1994 survey data. Several surveys were catastrophic events and to changes in the Alabama pearlshell and southern conducted in the basins between the human activities and land use practices kidneyshell are essential for their years of 1995 to 2010 (Shelton 1995, that may result in their elimination. conservation. However, we eliminated 1999 unpub. data; Blalock–Herod et al. Larger, more contiguous populations from consideration the Yellow River 2005; Pilarczyk et al. 2006, Shelton et can reduce the threat of extinction due drainage as critical habitat for the to habitat fragmentation and isolation. al. 2007 unpub. data; Gangloff and southern kidneyshell. Its occurrence in For these reasons, we believe that Hartfield 2009). These surveys were the Yellow River is based on a 1919 conservation of the Alabama pearlshell used to assess the current conservation collection of one specimen from Hollis status of the species, and extended their and southern kidneyshell requires Creek in Covington County, Alabama. known ranges. For this reason, we expanding their ranges into currently We believe this single, historical considered the year 1995 to be the unoccupied portions of their historical collection is not sufficient to include demarcation between current and habitat. Given that threats to these two historical records. To identify the species are compounded by their any portions of the Yellow River unoccupied stream reaches, we used limited distribution and isolation, it is drainage as essential to the conservation survey data between the late 1800s and unlikely that currently occupied habitat of the southern kidneyshell at this time. 1994. Therefore, if a species was known is adequate for their conservation. The All of the stream habitat areas proposed to occur in an area prior to 1995, but range of each has been severely as critical habitat that are currently not was not collected since then, the stream curtailed, their occupied habitats are known to be occupied contain sufficient reach is considered unoccupied. limited and isolated, and population PBFs (e.g., geomorphically stable We then evaluated occupied stream sizes are small. For example, the channels, perennial water flows, reaches to delineate the probable Alabama pearlshell is no longer adequate water quality, and appropriate upstream and downstream extent of believed to occur in the Limestone benthic substrates) to support life- each species’ distribution. Known Creek system (Monroe County), several history functions of the mussels. The occurrences for some mussel species are tributaries in the Murder Creek system, stream reaches also lack major extremely localized, and rare mussels or in the Patsaliga Creek drainage. The anthropogenic disturbance, and have can be difficult to locate. In addition, southern kidneyshell once occurred in potential for reoccupation by the species creek and river habitats are highly all three river basins, but is currently through future reintroduction efforts. dependent upon upstream and known only from the Choctawhatchee Based on the above factors, all downstream channel habitat conditions basin. While occupied units provide unoccupied stream reaches included in for their maintenance. Therefore, where habitat for current populations, these the proposed designations for the more than one occurrence record of a species are at high risk of extirpation Alabama pearlshell and southern particular species was found within a and extinction from stochastic events, kidneyshell are essential to their stream reach, we considered the entire whether periodic natural events or conservation.

TABLE 1—OCCUPANCY AND STREAM LENGTH OF PROPOSED CRITICAL HABITAT UNITS BY SPECIES

Total stream Unit Currently length kilometers occupied? (miles)

Alabama pearlshell (Margaritifera marrianae)

AP1: Big Flat Creek ...... Yes ...... 92 (57) AP2: Burnt Corn Creek, Murder Creek, and Sepulga River ...... Partially 1 ...... 156 (97)

Total ...... 248 (154)

Round ebonyshell (Fusconaia rotulata)

GCM1: Lower Escambia-Conecuh ...... Yes ...... 558 (347)

Southern sandshell (Hamiota australis)

GCM3: Patsaliga Creek ...... Yes ...... 149 (92) GCM4: Upper Escambia-Conecuh River ...... Yes ...... 137 (85) GCM5: Yellow River ...... Yes ...... 253 (157) GCM6: Choctawhatchee River and Lower Pea River ...... Yes ...... 892 (554) GCM7: Upper Pea River ...... Yes ...... 234 (145)

Total ...... 1,665 (1,033)

Southern kidneyshell (Ptychobranchus jonesi)

GCM1: Lower Escambia-Conecuh ...... No ...... 558 (347)

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TABLE 1—OCCUPANCY AND STREAM LENGTH OF PROPOSED CRITICAL HABITAT UNITS BY SPECIES—Continued

Total stream Unit Currently length kilometers occupied? (miles)

GCM3: Patsaliga Creek ...... No ...... 149 (92) GCM4: Upper Escambia-Conecuh River ...... No ...... 137 (85) GCM5: Choctawhatchee River and Lower Pea River ...... Yes ...... 253 (157) GCM7: Upper Pea River ...... Yes ...... 234 (145)

Total ...... 1,331 (826)

Choctaw bean (Villosa choctawensis)

GCM1: Lower Escambia-Conecuh ...... Yes ...... 558 (347) GCM3: Patsaliga Creek ...... Yes ...... 149 (92) GCM4: Upper Escambia-Conecuh River ...... Yes ...... 137 (85) GCM5: Yellow River ...... Yes ...... 253 (157) GCM6: Choctawhatchee River and Lower Pea River ...... Yes ...... 892 (554) GCM7: Upper Pea River ...... Yes ...... 234 (145)

Total ...... 2,223 (1,380)

Tapered pigtoe (Fusconaia burkei)

GCM6: Choctawhatchee River and Lower Pea River ...... Yes ...... 892 (554) GCM7: Upper Pea River ...... Yes ...... 234 (145)

Total ...... 1,126 (699)

Narrow pigtoe (Fusconaia escambia)

GCM1: Lower Escambia-Conecuh ...... Yes ...... 558 (347) GCM2: Point A Lake and Gantt Lake Reservoirs ...... Yes ...... 21 (13) GCM3: Patsaliga Creek ...... Yes ...... 149 (92) GCM4: Upper Escambia-Conecuh River ...... Yes ...... 137 (85) GCM5: Yellow River ...... Yes ...... 253 (157)

Total ...... 1,118 (694)

Fuzzy pigtoe (Pleurobema strodeanum)

GCM2: Lower Escambia-Conecuh ...... Yes ...... 21 (13) GCM3: Patsaliga Creek ...... Yes ...... 149 (92) GCM4: Upper Escambia-Conecuh River ...... Yes ...... 137 (85) GCM5: Yellow River ...... Yes ...... 253 (157) GCM6: Choctawhatchee River and Lower Pea River ...... Yes ...... 892 (554) GCM7: Upper Pea River ...... Yes ...... 234 (145)

Total ...... 1,686 (1,046) 1 17 km (11 mi) of Murder Creek mainstem are unoccupied.

Following the identification of flowing streams. The confluence of a equivalent miles (mi), as measured occupied and unoccupied stream tributary typically marks a significant tracing the course of the stream, not reaches, the next step was to delineate change in the size of the stream and is straight-line distance. Distances less the probable upstream and downstream a logical and recognizable upstream than 10 km (6.2 mi) are rounded to the extent of each species’ distribution. We terminus. When a named tributary was nearest half number; and distances of 10 used USGS 1:100,000 digital stream not available, a road-crossing bridge was km and greater are rounded to the maps to delineate these boundaries of used to mark the boundary. Likewise, a nearest whole number. proposed critical habitat units according dam or other barrier to fish passage Because mussels are naturally to the criteria explained below. The marks the upstream extent to which restricted by certain physical conditions upstream boundary of a unit in a stream mussels may disperse via their fish within a stream or river reach (i.e., flow, is the first perennial, named tributary hosts. The downstream boundary of a substrate), they may be unevenly confluence, a road-crossing bridge, or a unit in a stream is the confluence of a distributed within these habitat units. permanent barrier to fish passage (such named tributary, the upstream extent of Uncertainty on upstream and as a dam) above the upstream-most tidal influence, or the upstream extent downstream distributional limits of current occurrence record. Many of the of an impoundment, below the some populations may have resulted in Alabama pearlshell survey sites are downstream-most occurrence record. In small areas of occupied habitat located near watershed headwaters. In the unit descriptions, distances between excluded from, or areas of unoccupied these areas, the upstream boundary of a landmarks marking the upstream or habitat included in, the designation. We unit is the point where the stream and downstream extent of a stream segment recognize that both historical and recent its tributaries are no longer perennially are given in kilometers (km) and collection records upon which we relied

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are incomplete, and that there may be often co-occur within the same stream in Table 2. The proposed critical habitat river segments or small tributaries not segments, so most of the GCM critical units include the creek and river included in this proposed designation habitat units are designated for more channels within the ordinary high-water that harbor small, limited populations of than one species. Unit GCM2: Point A line only. For this purpose, we have one or more of the eight species Lake and Gantt Lake Reservoirs is the applied the definition found at 33 CFR considered in this designation, or that only exception, and the unit is 329.11, and consider the ordinary high- others may become suitable in the designated only for the narrow pigtoe. water line on nontidal rivers to be the future. The exclusion of such areas does When determining proposed critical line on the shore established by the not diminish their potential individual habitat boundaries within this proposed fluctuations of water and indicated by or cumulative importance to the rule, we made every effort to avoid physical characteristics, such as a clear, conservation of these species. However, including developed areas and other natural line impressed on the bank; we believe that, with proper structures because these lack PCEs for shelving; changes in the character of management, each of the nine critical the eight species. The areas proposed for soil; destruction of terrestrial vegetation; habitat units are capable of supporting critical habitat below include only the presence of litter and debris; or one or more of these mussel species, stream channels within the ordinary other appropriate means that consider and will serve as source populations for high-water line and do not contain the characteristics of the surrounding artificial reintroduction into designated developed areas or structures. The scale areas. stream units, as well as assisted or of the maps we prepared under the natural migration into adjacent parameters for publication within the States were granted ownership of undesignated streams within each basin. Code of Federal Regulations may not lands beneath navigable waters up to The habitat areas contained within the reflect the exclusion of such developed the ordinary high-water line upon units described below constitute our lands. Any such lands inadvertently left achieving statehood (Pollard v. Hagan, best evaluation of areas needed for the inside critical habitat boundaries shown 44 U.S. (3 How.) 212 (1845)). Prior conservation of these species at this on the maps of this proposed rule have sovereigns or the States may have made time. Critical habitat may be revised for been excluded by text in the proposed grants to private parties that included any or all of these species should new rule and are not proposed for lands below the ordinary high-water information become available. designation as critical habitat. mark of some navigable waters that are Using the above criteria, we Therefore, if the critical habitat is included in this proposal. We believe delineated a total of nine critical habitat finalized as proposed, a Federal action that most, if not all, lands beneath the units—two Alabama pearlshell units involving these lands would not trigger navigable waters included in this (AP1, AP2), and seven Gulf Coast section 7 consultation with respect to proposed rule are owned by the States mussels units (GCM1 through GCM7) critical habitat and the requirement of of Alabama and Florida. The lands for the other seven mussel species. We no adverse modification unless the beneath most nonnavigable waters depicted the Alabama pearlshell units specific action would affect the physical included in this proposed rule are in separately as this species tends to and biological features in the adjacent private ownership. Riparian lands along inhabit headwater stream environments critical habitat. the waters are either in private and seldom co-occurs with the other ownership, or are owned by county, seven species, although some critical Proposed Critical Habitat Designation State, or Federal entities. Lands under habitat in the downstream portions of We are proposing nine habitat units county, State, and Federal ownership Unit AP2 overlaps with the upstream encompassing 2,406 km (1,495 mi) of consist of managed conservation areas portions of Unit GCM1 in the Escambia stream channel in Alabama and Florida and Department of Defense lands, and River drainage. The round ebonyshell, for these eight freshwater mussel are considered to have some level of southern sandshell, southern species. Unit name, location, and the protection. Table 2 identifies the kidneyshell, Choctaw bean, tapered approximate stream length of each approximate length of private and pigtoe, narrow pigtoe, and fuzzy pigtoe proposed critical habitat unit are shown protected riparian lands.

TABLE 2—PROPOSED CRITICAL HABITAT UNITS, LOCATION, APPROXIMATE STREAM LENGTH, AND OWNERSHIP OF RIPARIAN LANDS

Total length Private/ Unit Location km Private km protected km Protected km (mi) (mi)* (mi)* (mi)*

AP1 ...... Big Flat Creek, AL ...... 92 (57) 92 (57) 0 0 AP2 ...... Burnt Corn Creek, Murder Creek, and Sepulga River, AL 156 (97) 156 (97) 0 0 GCM1 ...... Lower Escambia River, AL, FL ...... 558 (347) 482 (299) 18 (11) 59 (36) GCM2 ...... Point A Lake and Gantt Lake Reservoirs, AL ...... 21 (13) 21 (13) 0 0 GCM3 ...... Patsaliga Creek, AL ...... 149 (92) 149 (92) 0 0 GCM4 ...... Upper Escambia River, AL ...... 137 (85) 130 (81) 7 (4) 0 GCM5 ...... Yellow River, AL, FL ...... 253 (157) 104 (64) 68 (42) 81 (50) GCM6 ...... Choctawhatchee and Lower Pea River, AL, FL ...... 892 (554) 718 (446) 61 (38) 119 (74) GCM7 ...... Upper Pea River, AL ...... 234 (145) 228 (142) 0 5 (3)

Overlap between units AP2 and GCM1 ...... ¥85 (53) ......

Total ...... 2,406 ...... (1,495) 1,993 (1239) 153 (95) 264 (164) Note: Distances may not sum due to rounding. * Ownership is categorized by private ownership on both banks of the river (Private); private on one bank and county, state or federal on the other (Private/Protected); and county, state, or federal on both banks (Protected).

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Below we present brief descriptions of within the Escambia River drainage in (including the construction of all units, and reasons why they meet the Escambia and Conecuh Counties, AL. It impoundments), and protecting water definition of critical habitat for each includes the mainstem of Burnt Corn quality from excessive point- and non- species. We also present any threats Creek from its confluence with Murder point-source pollution. unique to the unit’s features that may Creek upstream 66 km (41 mi), Conecuh Unit GCM1: Lower Escambia River require special management of the PCEs. County, AL; the mainstem of Murder Drainage, Florida and Alabama For each stream reach proposed as a Creek from its confluence with Jordan critical habitat unit, the upstream and Creek upstream 17 km (11 mi) to the Unit GCM1 encompasses 558 km (347 downstream boundaries are described confluence of Otter Creek, Conecuh mi) of the lower Escambia River generally below. More precise estimates County, AL; Jordan Creek from its mainstem and 12 tributary streams in are provided in the Regulation confluence with Murder Creek upstream Escambia and Santa Rosa Counties, FL; Promulgation section at the end of this 12 km (7 mi), Conecuh County, AL; and Escambia, Covington, Conecuh, and proposed rule. Otter Creek from its confluence with Butler Counties, AL. The unit consists Murder Creek upstream 9 km (5.5 mi), of the main channel of the Escambia- Unit AP1: Big Flat Creek Drainage, Conecuh County, AL; Hunter Creek Conecuh River from the confluence of Alabama from its confluence with Murder Creek Spanish Mill Creek, Escambia and Santa Unit AP1 encompasses 92 km (57 mi) upstream 8 km (5 mi), Conecuh County, Rosa Counties, FL, upstream 204 km of the Big Flat Creek drainage, in AL; Sandy Creek from County Road 29 (127 mi) to the Point A Lake dam, Monroe and Wilcox Counties, AL. The upstream 5 km (3.5 mi) to Hagood Road; Covington County, AL; Murder Creek unit is within the Mobile River basin. It two unnamed tributaries to Sandy from its confluence with the Conecuh includes the mainstem of Big Flat Creek Creek—one from its confluence with River, Escambia County, AL, upstream from Hwy 41 upstream 56 km (35 mi), Sandy Creek upstream 8.5 km (5.0 mi) 62 km (38 mi) to the confluence of Cane Monroe County, AL; Flat Creek from its to Hagood Road and the other from its Creek, Conecuh County, AL; Burnt Corn confluence with Big Flat Creek confluence with the previous unnamed Creek from its confluence with Murder upstream 20 km (12 mi), Monroe tributary 2.5 km (1.5 mi) upstream to Creek, Escambia County, AL, upstream County, AL; and Dailey Creek from its Hagood Road, Conecuh County, AL; 59 km (37 mi) to County Road 20, confluence with Flat Creek upstream 17 Little Cedar Creek from County Road 6 Conecuh County, AL; Jordan Creek from km (11 mi), Wilcox County, AL. upstream 8 km (5 mi), Conecuh County, its confluence with Murder Creek, Unit AP1 is proposed as critical AL; Amos Mill Creek from its upstream 5.5 km (3.5 mi) to Interstate habitat for the Alabama pearlshell. confluence with the Sepulga River 65, Conecuh County, AL; Mill Creek Based on collection records, the species upstream 12 km (8 mi), Escambia and from its confluence with Murder Creek was last collected in the Big Flat Creek Conecuh Counties, AL; Polly Creek from upstream 2.5 km (1.5 mi) to the system in 1995, when Shelton (1995, p. its confluence with Amos Mill Creek confluence of Sandy Creek, Conecuh 3 unpub. data) documented a fresh dead upstream 3 km (2 mi), Conecuh County, County, AL; Sandy Creek from its individual. Although it is likely that the AL; and Bottle Creek from its confluence with Mill Creek upstream Alabama pearlshell has always been rare confluence with the Sepulga River 5.5 km (3.5 mi) to County Road 29, in Big Flat Creek, the unit currently upstream 5.5 km (3.5 mi) to County Conecuh County, AL; Sepulga River supports healthy populations of several Road 42, Conecuh County, AL. from its confluence with the Conecuh other native mussel species indicating The Alabama pearlshell currently River upstream 69 km (43 mi) to the the presence of PCEs 1, 2, 3, and 4. A occurs in Jordan, Hunter, Otter, Sandy, confluence of Persimmon Creek, diverse fish fauna, including potential and Little Cedar, Bottle, and Amos Mill Conecuh County, AL; Bottle Creek from fish host(s) for the Alabama pearlshell, Creek drainages. Although it historically its confluence with the Sepulga River are known from the Big Flat Creek occurred in the mainstem of Murder upstream 5.5 km (3.5 mi) to County drainage, indicating the potential Creek, it has not been collected there in Road 42, Conecuh County, AL; presence of PCE 5. recent years. Therefore, this short reach Persimmon Creek from its confluence Threats to the Alabama pearlshell and of Murder Creek is considered with the Sepulga River, Conecuh its habitat may require special unoccupied by the Alabama pearlshell, County upstream 36 km (22 mi) to the management of the PCEs including but essential to the conservation of the confluence of Mashy Creek, Butler maintaining natural stream flows and species. This unoccupied reach retains County, AL; Panther Creek from its protecting water quality from excessive the features of a natural stream channel confluence with Persimmon Creek point- and non-point-source pollution. and supports other native mussel upstream 11 km (7 mi) to State Route For example, runoff from agricultural species. It has potential for reoccupation 106, Butler County, AL; Pigeon Creek and industrial sites can alter water by the pearlshell, particularly if threats from its confluence with the Sepulga quality through added nutrients and can be identified and mitigated. River, Conecuh and Covington Counties sediment. Runoff from unpaved roads The unit currently supports healthy upstream 89 km (55 mi) to the can also add sediments, and poorly populations of several other native confluence of Three Run Creek, Butler designed road culverts can degrade mussel species indicating the presence County, AL; and Three Run Creek from habitats and limit distribution of the of PCEs 1, 2, 3, and 4. In addition, other its confluence with Pigeon Creek species. Some culverts can isolate mussel species, requiring similar PCEs, upstream 9 km (5.5 mi) to the pearlshell populations by acting as a co-occur with the pearlshell. A diverse confluence of Spring Creek, Butler barrier for dispersion and movement of fish fauna, including potential fish County, AL. host fish(es). host(s) for the Alabama pearlshell, are Unit GCM1 is proposed as critical known from these drainages, indicating habitat for the round ebonyshell, Unit AP2: Burnt Corn Creek, Murder the potential presence of PCE 5. southern sandshell, southern Creek, and Sepulga River Drainages, Threats to the Alabama pearlshell and kidneyshell, Choctaw bean, narrow Alabama its habitat may require special pigtoe, and fuzzy pigtoe. The southern Unit AP2 encompasses 156 km (97 management of the PCEs including, kidneyshell is not currently known to mi) of the Burnt Corn Creek, Murder alteration of natural stream flows, occur in the unit; however, this portion Creek, and Sepulga River drainages maintaining natural stream flows of the Escambia River system is within

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the species’ historical range, and we other mussels of the genus Fusconaia conservation of the southern consider it essential to the southern are known to use cyprinid minnows, a kidneyshell due to the need to re- kidneyshell’s conservation due to the fish species that occupies a variety of establish the species within other need to re-establish the species within habitats including large, flowing rivers, portions of its historical range in order other portions of its historical range in and lakes and reservoirs (Mettee et al. to reduce threats from stochastic events. order to reduce threats from stochastic 1996, p. 128). The unit currently The unit does currently support events. The unit currently supports supports narrow pigtoe populations, populations of southern sandshell, populations of round ebonyshell, indicating the presence of PCEs 1, 3, 4, Choctaw bean, narrow pigtoe, and fuzzy southern sandshell, Choctaw bean, and 5. We consider the habitat in this pigtoe indicating the presence of PCEs narrow pigtoe, and fuzzy pigtoe unit essential to the conservation of the 1, 2, 3, and 4. In addition, other mussel indicating the presence of PCEs 1, 2, 3, narrow pigtoe as it possesses the largest species, requiring similar PCEs, co- and 4. In addition, other mussel species, known population. The fuzzy pigtoe is occur with these four species. A diverse requiring similar PCEs, co-occur with known from this stretch of the Conecuh fish fauna, including a potential fish these five species. A diverse fish fauna, River (one specimen was collected in host for the fuzzy pigtoe, are known including potential fish host(s) for the 1915). However, the collection was from the Patsaliga Creek drainage, fuzzy pigtoe, are known from the made prior to construction of the indicating the potential presence of PCE Escambia River drainage, indicating the reservoirs in 1923, and it is not 5. potential presence of PCE 5. presently known to occur in this now- Prior to construction of the Point A Threats to the five species and their impounded section of the river. Lake and Gantt Lake dams in 1923, habitat that may require special Threats to the narrow pigtoe and its Patsaliga Creek drained directly to the management of the PCEs include the habitat that may require special Conecuh River main channel. It now potential of significant changes in the management of the PCEs include the empties into Point A Lake and is existing flow regime and water quality potential of significant changes in water effectively isolated from the main due to two upstream impoundments. As levels due to periodic drawdowns of the channel by the dams. The dams are discussed in Summary of Factors reservoirs for maintenance to the dams. barriers to upstream fish movement, Affecting the Species, under Dams and Within the two reservoirs, mussels particularly to anadromous fishes. Impoundments, mollusk declines below occur in shallow areas near the shore, Therefore, a potential threat that may dams are associated with changes and where they are susceptible to exposure require special management of the PCEs fluctuation in flow regime, scouring and when water levels are lowered. A includes the absence of fish hosts. erosion, reduced dissolved oxygen drawdown of Point A Lake in 2005 and Unit GCM4: Upper Escambia River levels and water temperatures, and Gantt Lake in 2006 exposed and killed Drainage, Alabama changes in resident fish assemblages. a substantial number of mussels These alterations can cause mussel (Johnson 2006a in litt.; Johnson 2006b in Unit GCM4 encompasses 137 km (85 declines for many miles below the dam. litt.). During the Gantt drawdown, 142 mi) of the Conecuh River mainstem and individuals of narrow pigtoe were two tributary streams in Covington, Unit GCM2: Point A Lake and Gantt relocated after being stranded in Crenshaw, Pike, and Bullock Counties, Lake Reservoirs, Alabama dewatered areas near the shoreline AL, within the Escambia River drainage. Unit GCM2 encompasses 21 km (13 (Garner 2009 pers. comm.; Pursifull The unit consists of the Conecuh River mi) of the Point A Lake and Gantt Lake 2006 pers. obs.). from its confluence with Gantt Lake reservoir system in Covington County, reservoir at the Covington-Crenshaw AL. Both lakes are impoundments on Unit GCM3: Patsaliga Creek Drainage, County line upstream 126 km (78 mi) to the Conecuh River main channel in the Alabama County Road 8, Bullock County, AL; Escambia River drainage. The unit Unit GCM3 encompasses 149 km (92 Beeman Creek from its confluence with extends from Point A Lake dam, mi) of Patsaliga Creek and two tributary the Conecuh River upstream 6.5 km (4 Covington County upstream 21 km (13 streams in Covington, Crenshaw, and mi) to the confluence of Mill Creek, Pike mi) to the Covington-Crenshaw County Pike Counties, AL, within the Escambia County, AL; and Mill Creek from its line in Alabama. River basin. The unit consists of the confluence with Beeman Creek, Unit GCM2 is proposed as critical Patsaliga Creek mainstem from its upstream 4.5 km (3 mi) to County Road habitat for the narrow pigtoe. As confluence with Point A Lake at County 13, Pike County, AL. mentioned in the PCEs for the narrow Road 59, Covington County, AL, Unit GCM4 is proposed as critical pigtoe (above), we attribute its upstream 108 km (67 mi) to Crenshaw habitat for the southern sandshell, occurrence in these two impoundments County Road 66–Pike County Road 1 southern kidneyshell, Choctaw bean, to the small size of the reservoirs and to (the creek is the county boundary), AL; narrow pigtoe, and fuzzy pigtoe. The the operational regime of the dams. This Little Patsaliga Creek from its southern kidneyshell is not currently allows for water movement through the confluence with Patsaliga Creek known to occur in the unit; however, system, and prevents silt accumulation upstream 28 km (17 mi) to Mary Daniel this portion of the Conecuh River is in some areas. The largest narrow pigtoe Road, Crenshaw County, AL; and within the species’ historical range, and population occurs in the middle reach Olustee Creek from its confluence with we consider it to be essential to the of Gantt Lake, where the reservoir Patsaliga Creek upstream 12 km (8 mi) conservation of the southern narrows and becomes somewhat to County Road 5, Pike County, AL. kidneyshell due to the need to re- riverine. Although the natural state of Unit GCM3 is proposed as critical establish the species within other the river’s hydrological flow regime is habitat for the southern sandshell, portions of its historical range in order modified, it does retain the features southern kidneyshell, Choctaw bean, to reduce threats from stochastic events. necessary to maintain the benthic narrow pigtoe, and fuzzy pigtoe. The The unit does currently support habitats where the species are found. southern kidneyshell is not currently populations of southern sandshell, The persistence of the narrow pigtoe known to occur in the unit; however, Choctaw bean, narrow pigtoe, and fuzzy within these reservoirs indicates the this portion of the Patsaliga Creek pigtoe indicating the presence of PCEs presence of an appropriate fish host. system is within the species’ historical 1, 2, 3, and 4. In addition, other mussel Although its fish host(s) is unknown, range. We consider it essential to the species requiring similar PCEs co-occur

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with these four species. A diverse fish Unit GCM6: Choctawhatchee River and (4 mi) to Fowler Branch, Holmes fauna, including a potential fish host for Lower Pea River Drainages, Florida and County, FL; East Pittman Creek from its the fuzzy pigtoe, are known from the Alabama confluence with the Choctawhatchee upper Escambia River drainage, Unit GCM6 encompasses 892 km (554 River upstream 4.5 km (3 mi) to County indicating the potential presence of PCE mi) of the Choctawhatchee River Road 179, Holmes County, FL; Parrot 5. mainstem, the lower Pea River Creek from its confluence with the The Point A Lake and Gantt Lake mainstem, and 29 tributary streams in Choctawhatchee River upstream 6 km (4 dams on the Conecuh River mainstem Walton, Washington, Bay, Holmes, and mi) to Tommy Lane, Holmes County, are barriers to upstream fish movement, Jackson Counties, FL; and Geneva, FL; the Pea River from its confluence particularly to anadromous fishes. Coffee, Dale, Houston, Henry, Pike, and with the Choctawhatchee River, Geneva Therefore, a potential threat that may Barbour Counties, AL. The unit consists County upstream 91 km (57 mi) to the require special management of the PCEs of the Choctawhatchee River from the Elba Dam, Coffee County, AL; includes the absence of fish hosts. confluence of Pine Log Creek, Walton Limestone Creek from its confluence with the Pea River upstream 8.5 km (5 Unit GCM5: Yellow River Drainage, County, FL upstream 200 km (125 mi) mi) to Woods Road, Walton County, FL; Florida and Alabama to the point the river splits into the West Fork Choctawhatchee and East Fork Flat Creek from the Pea River upstream Unit GCM5 encompasses 253 km (157 Choctawhatchee Rivers, Barbour 17 km (10 mi) to the confluence of mi) of the Yellow River mainstem, the County, AL; Pine Log Creek from its Panther Creek, Geneva County, AL; Shoal River mainstem and three confluence with the Choctawhatchee Eightmile Creek from its confluence tributary streams in Santa Rosa, River, Walton County, upstream 19 km with Flat Creek, Geneva County, AL, Okaloosa, and Walton Counties, FL; and (12 mi) to the confluence of Ditch upstream 15 km (9 mi) to the confluence Covington County, AL. The unit Branch, Washington and Bay Counties, of Dry Branch (first tributary upstream consists of the Yellow River from the FL; an unnamed channel forming of County Road 181), Walton County, confluence of Weaver River, (a tributary Cowford Island from its downstream FL; Corner Creek from its confluence located 0.9 km (0.6 mi) downstream of confluence with the Choctawhatchee with Eightmile Creek upstream 5 km (3 State Route 87), Santa Rosa County, FL, River upstream 3 km (2 mi) to its mi) to State Route 54, Geneva County, upstream 157 km (97 mi) to County upstream confluence with the river, AL; Natural Bridge Creek from its Road 42, Covington County, AL; the Washington County, FL; Crews Lake confluence with Eightmile Creek Shoal River from its confluence with the from its western terminus 1.5 km (1 mi) Geneva County, AL, upstream, 4 km (2.5 Yellow River, Okaloosa County, FL, to its eastern terminus, Washington mi) to the Covington-Geneva County upstream 51 km (32 mi) to the County, FL (Crews Lake is a relic line, AL; Double Bridges Creek from the confluence of Mossy Head Branch, channel southwest of Cowford Island, Choctawhatchee River, Geneva County Walton County, FL; Pond Creek from its and is disconnected from the Cowford upstream 46 km (29 mi) to the confluence with the Shoal River, Island channel, except during high confluence of Blanket Creek, Coffee Okaloosa County, FL, upstream 24 km flows); Holmes Creek from its County, AL; Claybank Creek from the (15 mi) to the confluence of Fleming confluence with the Choctawhatchee Choctawhatchee River, Geneva County Creek, Walton County, FL; Five Runs River, Washington County, FL, upstream 22 km (14 mi) to the Fort Creek from its confluence with the upstream 98 km (61 mi) to County Road Rucker military reservation southern Yellow River upstream 15 km (9.5 mi) 4, Geneva County, AL; Alligator Creek boundary, Dale County, AL; Claybank to County Road 31, Covington County, from its confluence with Holmes Creek Creek from the Fort Rucker military AL; and Hollis Creek from its upstream 6.5 km (4 mi) to County Road reservation northern boundary, confluence with the Yellow River 166, Washington County, FL; Bruce upstream 6 km (4 mi) to County Road upstream 5.5 km (3.5 mi) to County Creek from its confluence with the 36, Dale County, AL; Steep Head Creek Road 42, Covington County, AL. Choctawhatchee River upstream 25 km from the Fort Rucker military Unit GCM5 is proposed as critical (16 mi) to the confluence of an unnamed reservation western boundary, upstream habitat for the southern sandshell, tributary, Walton County, FL; Sandy 4 km (2.5 mi) to County Road 156, Choctaw bean, narrow pigtoe, and fuzzy Creek from its confluence with the Coffee County, AL; Hurricane Creek pigtoe. The southern kidneyshell is Choctawhatchee River, Walton County from its confluence with the known from the Yellow River drainage; upstream 30 km (18 mi) to the Choctawhatchee River upstream 14 km however, its occurrence in the basin is confluence of West Sandy Creek, (8.5 mi) to State Route 52, Geneva based on the collection of one specimen Walton County, FL; Blue Creek from its County, AL; Little Choctawhatchee in 1919 from Hollis Creek in Alabama. confluence with Sandy Creek, upstream River from its confluence with the We believe this single, historical record 7 km (4.5 mi) to the confluence of Goose Choctawhatchee River, Dale and is not sufficient to consider this unit as Branch, Holmes County, FL; West Houston Counties upstream 20 km (13 essential to the conservation of the Sandy Creek from its confluence with mi) to the confluence of Newton Creek, southern kidneyshell. Therefore, we are Sandy Creek, upstream 5.5 km (3.5 mi) Houston County, AL; Panther Creek not designating Unit GCM5 as critical to the confluence of an unnamed from its confluence with the Little habitat for the southern kidneyshell at tributary, Walton County, FL; Wrights Choctawhatchee River, upstream 4.5 km this time. The unit does currently Creek from its confluence with the (2.5 mi) to the confluence of Gilley Mill support populations of southern Choctawhatchee River, Holmes County, Branch, Houston County, AL; Bear sandshell, Choctaw bean, narrow pigtoe, FL, upstream 43 km (27 mi) to County Creek from its confluence with the Little and fuzzy pigtoe indicating the presence Road 4, Geneva County, AL; Tenmile Choctawhatchee River, upstream 5.5 km of PCEs 1, 2, 3, and 4. In addition, other Creek from its confluence with Wrights (3.5 mi) to County Road 40 (Fortner mussel species, requiring similar PCEs, Creek upstream 6 km (3.5 mi) to the Street), Houston County, AL; West Fork co-occur with these four species. A confluence of Rice Machine Branch, Choctawhatchee River from its diverse fish fauna are known from the Holmes County, FL; West Pittman Creek confluence with the Choctawhatchee Yellow River drainage, indicating the from its confluence with the River, Dale County upstream 54 km (33 potential presence of PCE 5. Choctawhatchee River upstream 6.5 km mi) to the fork of Paul’s Creek and

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Lindsey Creek, Barbour County, AL; oxygen levels and water temperatures, to ensure that any action they fund, Judy Creek from its confluence with and changes in resident fish authorize, or carry out is not likely to West Fork Choctawhatchee River assemblages. These alterations can jeopardize the continued existence of upstream 17 km (11 mi) to County Road cause mussel declines for many miles any endangered species or threatened 13, Dale County, AL; Sikes Creek from below the dam. species or result in the destruction or its confluence with West Fork adverse modification of designated Choctawhatchee River, Dale County Unit GCM7: Upper Pea River Drainage, critical habitat of such species. In upstream 8.5 km (5.5 mi) to State Route Alabama addition, section 7(a)(4) of the Act 10, Barbour County, AL; Paul’s Creek Unit GCM7 encompasses 234 km (145 requires Federal agencies to confer with from its confluence with West Fork mi) of the upper Pea River mainstem the Service on any agency action which Choctawhatchee River upstream 7 km and six tributary streams in Coffee, Dale, is likely to jeopardize the continued (4.5 mi) to one mile upstream of County Pike, Barbour, and Bullock Counties, existence of any species proposed to be Road 20, Barbour County, AL; Lindsey AL. This unit is within the listed under the Act or result in the Creek from its confluence with West Choctawhatchee River basin and destruction or adverse modification of Fork Choctawhatchee River upstream 14 includes the stream segments upstream proposed critical habitat. km (8.5 mi) to the confluence of an of the Elba dam. The unit consists of the Decisions by the 5th and 9th Circuit unnamed tributary, Barbour County, AL; Pea River from the Elba dam, Coffee Courts of Appeal have invalidated our an unnamed tributary to Lindsey Creek County upstream 123 km (76 mi) to regulatory definition of ‘‘destruction or from its confluence with Lindsey Creek State Route 239, Bullock and Barbour adverse modification’’ (50 CFR 402.02) upstream 2.5 km (1.5 mi) to 1.0 mile Counties, AL; Whitewater Creek from its (see Gifford Pinchot Task Force v. U.S. upstream of County Road 53, Barbour confluence with the Pea River, Coffee Fish and Wildlife Service, 378 F. 3d County, AL; and East Fork County upstream 45 km (28 mi) to the 1059 (9th Cir. 2004) and Sierra Club v. Choctawhatchee River from its confluence of Walnut Creek, Pike U.S. Fish and Wildlife Service, 245 F.3d confluence with Choctawhatchee River, County, AL; Walnut Creek from its 434, 442 (5th Cir. 2001)), and we do not Dale County upstream 71 km (44 mi) to confluence with Whitewater Creek rely on this regulatory definition when County Road 71, Barbour County, AL. upstream 14 km (9 mi) to County Road analyzing whether an action is likely to Unit GCM6 is proposed as critical 26, Pike County, AL; Big Creek (Coffee destroy or adversely modify critical habitat for the southern sandshell, County Big Creek) from its confluence habitat. Under the statutory provisions southern kidneyshell, Choctaw bean, with Whitewater Creek, Coffee County of the Act, we determine destruction or tapered pigtoe, and fuzzy pigtoe. The upstream 30 km (18 mi) to the adverse modification on the basis of unit currently supports populations of confluence of Smart Branch, Pike whether, with implementation of the the five species and other mussel County, AL; Big Creek (Barbour County proposed Federal action, the affected species requiring similar PCEs, Big Creek) from its confluence with the critical habitat would continue to serve indicating the presence of PCEs 1, 2, 3, Pea River upstream 10 km (6 mi) to the its intended conservation role for the and 4. A diverse fish fauna is known confluence of Sand Creek, Barbour species. from the Choctawhatchee River, County, AL; Pea Creek from its If a Federal action may affect a listed including a potential fish host for the confluence with the Pea River upstream species or its critical habitat, the fuzzy pigtoe and tapered pigtoe, 6 km (4 mi) to the confluence of responsible Federal agency (action indicating the potential presence of PCE Hurricane Creek, Barbour County, AL; agency) must enter into consultation 5. and Big Sandy Creek from its with us. Examples of actions that are Not included in this unit are two confluence with the Pea River upstream subject to the section 7 consultation oxbow lakes now disconnected from the 6.5 km (4 mi) to County Road 14, process are actions on State, tribal, Choctawhatchee River main channel in Bullock County, AL. local, or private lands that require a Washington County, FL. Horseshoe Lake Unit GCM7 is proposed as critical Federal permit (such as a permit from has a record of the southern kidneyshell habitat for the southern sandshell, the U.S. Army Corps of Engineers under from 1932, and Crawford Lake has southern kidneyshell, Choctaw bean, section 404 of the Clean Water Act (33 records of the Choctaw bean and tapered pigtoe, and fuzzy pigtoe. The U.S.C. 1251 et seq.) or a permit from the tapered pigtoe from 1934. It is possible unit currently supports populations of Service under section 10 of the Act) or these oxbow lakes had some connection the five species, and other mussel that involve some other Federal action to the main channel when the species requiring similar PCEs, (such as funding from the Federal collections were made over 75 years indicating the presence of PCEs 1, 2, 3, Highway Administration, Federal ago. The three species are not currently and 4. A diverse fish fauna is known Aviation Administration, or the Federal known to occur in Horseshoe or from the upper Pea River, including Emergency Management Agency). Crawford lakes, and we do not consider potential fish host(s) for the fuzzy pigtoe Federal actions not affecting listed them essential to the conservation of the and tapered pigtoe, indicating the species or critical habitat, and actions southern kidneyshell, Choctaw bean, or potential presence of PCE 5. on State, tribal, local, or private lands tapered pigtoe. The Elba dam on the Pea River that are not federally funded or Threats to the five species and their authorized, do not require section 7 habitat that may require special mainstem is a barrier to upstream fish movement, particularly to anadromous consultation. management of the PCEs include the As a result of section 7 consultation, fishes. Therefore, a potential threat that potential of significant changes in the we document compliance with the may require special management of the existing flow regime and water quality requirements of section 7(a)(2) through PCEs includes the absence of potential due to the Elba dam on the Pea River our issuance of: host fishes. mainstem. As discussed in Summary of (1) A concurrence letter for Federal Factors Affecting the Species, under Effects of Critical Habitat Designation actions that may affect, but are not Dams and Impoundments, mollusk likely to adversely affect, listed species Section 7 Consultation declines below dams are associated with or critical habitat; or changes and fluctuation in flow regime, Section 7(a)(2) of the Act requires (2) A biological opinion for Federal scouring and erosion, reduced dissolved Federal agencies, including the Service, actions that may affect, or are likely to

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adversely affect, listed species or critical appreciably reduces the conservation deposition or filamentous algal growth. habitat. value of critical habitat for Alabama Such activities could include, but are When we issue a biological opinion pearlshell, round ebonyshell, southern not limited to, construction projects, concluding that a project is likely to sandshell, southern kidneyshell, livestock grazing, timber harvest, and jeopardize the continued existence of a Choctaw bean, tapered pigtoe, narrow other watershed and floodplain listed species and/or destroy or pigtoe, or fuzzy pigtoe. As discussed disturbances that release sediments or adversely modify critical habitat, we above, the role of critical habitat is to nutrients into the water. These activities provide reasonable and prudent support life-history needs and provide could eliminate or reduce habitats alternatives to the project, if any are for the conservation of these species. necessary for the growth and identifiable, that would avoid the Section 4(b)(8) of the Act requires us reproduction of these mussels by likelihood of jeopardy and/or to briefly evaluate and describe, in any causing excessive sedimentation and destruction or adverse modification of proposed or final regulation that burial of the species or their habitats, or critical habitat. We define ‘‘reasonable designates critical habitat, activities nutrification leading to excessive and prudent alternatives’’ (at 50 CFR involving a Federal action that may filamentous algal growth. Excessive 402.02) as alternative actions identified destroy or adversely modify such filamentous algal growth can cause during consultation that: habitat, or that may be affected by such reduced nighttime dissolved oxygen (1) Can be implemented in a manner designation. levels through respiration, and prevent consistent with the intended purpose of Activities that may affect critical juvenile mussels from settling into the action; habitat, when carried out, funded, or stream sediments. (2) Can be implemented consistent authorized by a Federal agency, should with the scope of the Federal agency’s result in consultation for the Alabama Exemptions legal authority and jurisdiction; pearlshell, round ebonyshell, southern Application of Section 4(a)(3) of the Act (3) Are economically and sandshell, southern kidneyshell, technologically feasible; and Choctaw bean, tapered pigtoe, narrow The Sikes Act Improvement Act of (4) Would, in the Director’s opinion, pigtoe, or fuzzy pigtoe. These activities 1997 (Sikes Act) (16 U.S.C. 670a) avoid the likelihood of jeopardizing the include, but are not limited to: required each military installation that continued existence of the listed species (1) Actions that would alter the includes land and water suitable for the and/or avoid the likelihood of geomorphology of their stream and river conservation and management of destroying or adversely modifying habitats. Such activities could include, natural resources to complete an critical habitat. but are not limited to, instream integrated natural resource management Reasonable and prudent alternatives excavation or dredging, impoundment, plan (INRMP) by November 17, 2001. can vary from slight project channelization, and discharge of fill An INRMP integrates implementation of modifications to extensive redesign or materials. These activities could cause the military mission of the installation relocation of the project. Costs aggradation or degradation of the with stewardship of the natural associated with implementing a channel bed elevation or significant resources found on the base. Each reasonable and prudent alternative are bank erosion and result in entrainment INRMP includes: similarly variable. or burial of these mussels, and could (1) An assessment of the ecological Regulations at 50 CFR 402.16 require cause other direct or cumulative adverse needs on the installation, including the Federal agencies to reinitiate effects to these species and their life need to provide for the conservation of consultation on previously reviewed cycles. listed species; actions in instances where we have (2) Actions that would significantly (2) A statement of goals and priorities; listed a new species or subsequently alter the existing flow regime. Such (3) A detailed description of designated critical habitat that may be activities could include, but are not management actions to be implemented affected and the Federal agency has limited to; impoundment, water to provide for these ecological needs; retained discretionary involvement or diversion, water withdrawal, water and control over the action (or the agency’s draw-down, and hydropower (4) A monitoring and adaptive discretionary involvement or control is generation. These activities could management plan. authorized by law). Consequently, eliminate or reduce the habitat Among other things, each INRMP Federal agencies sometimes may need to necessary for growth and reproduction must, to the extent appropriate and request reinitiation of consultation with of these mussels. applicable, provide for fish and wildlife us on actions for which formal (3) Actions that would significantly management; fish and wildlife habitat consultation has been completed, if alter water chemistry or water quality enhancement or modification; wetland those actions with discretionary (for example, temperature, pH, protection, enhancement, and involvement or control may affect contaminants, and excess nutrients). restoration where necessary to support subsequently listed species or Such activities could include, but are fish and wildlife; and enforcement of designated critical habitat. not limited to, hydropower discharges, applicable natural resource laws. or the release of chemicals, biological The National Defense Authorization Application of the ‘‘Adverse pollutants, or heated effluents into Act for Fiscal Year 2004 (Pub. L. 108– Modification’’ Standard surface water or connected groundwater 136) amended the Act to limit areas The key factor related to the adverse at a point source or by dispersed release eligible for designation as critical modification determination is whether, (non-point source). These activities habitat. Specifically, section 4(a)(3)(B)(i) with implementation of the proposed could alter water conditions that are of the Act (16 U.S.C. 1533(a)(3)(B)(i)) Federal action, the affected critical beyond the tolerances of these mussels now provides: ‘‘The Secretary shall not habitat would continue to serve its and result in direct or cumulative designate as critical habitat any lands or intended conservation role for the adverse effects to the species and their other geographical areas owned or species. Activities that may destroy or life cycles. controlled by the Department of adversely modify critical habitat are (4) Actions that would significantly Defense, or designated for its use, that those that alter the physical or alter stream bed material composition are subject to an integrated natural biological features to an extent that and quality by increasing sediment resources management plan prepared

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under section 101 of the Sikes Act (16 revisions to critical habitat on the basis National Security Impacts U.S.C. 670a), if the Secretary determines of the best available scientific data after Under section 4(b)(2) of the Act, we in writing that such plan provides a taking into consideration the economic consider whether there are lands owned benefit to the species for which critical impact, national security impact, and or managed by the Department of habitat is proposed for designation.’’ any other relevant impact of specifying Defense where a national security The U.S. Army-operated Fort Rucker any particular area as critical habitat. impact might exist. In preparing this Aviation Center, located in Daleville, The Secretary may exclude an area from proposal, we have determined that some AL, owns lands that include portions of critical habitat if he determines that the lands owned by the Department of the proposed critical habitat designation benefits of such exclusion outweigh the Defense (Fort Rucker Army Aviation benefits of specifying such area as part (specifically unit GCM6, Center) are within the proposed of the critical habitat, unless he Choctawhatchee River and Lower Pea designation of critical habitat for these determines, based on the best scientific River Drainage). Portions of Claybank eight mussels. However, this installation data available, that the failure to and Steep Head Creeks are on lands has a completed INRMP that provides designate such area as critical habitat within the Fort Rucker military for the conservation of aquatic fish and will result in the extinction of the reservation. Fort Rucker has completed wildlife and their habitats, and therefore species. In making that determination, an INRMP (BioResources 2007) that stream sections within the installation the statute on its face, as well as the guides conservation activities on the are already exempted from the legislative history, are clear that the installation through 2014. This INRMP definition of critical habitat under does not mention any of the southern Secretary has broad discretion regarding which factor(s) to use and how much Section 4(a)(3)(B)(i) (see Exemptions sandshell, southern kidneyshell, above) so that there is no need to Choctaw bean, tapered pigtoe, and fuzzy weight to give to any factor. Under section 4(b)(2) of the Act, we propose them for exclusion under pigtoe by name, but does specifically Section 4(b)(2) based on national address maintaining and improving may exclude an area from designated critical habitat based on economic security impact. We have also proposed water quality through reduction in portions of the Yellow and Shoal Rivers sedimentation and erosion control, land impacts, impacts on national security, or any other relevant impacts. In that form the northwestern boundary of management practices, and improved Eglin Air Force Base as critical habitat. treatment facilities (BioResources 2007, considering whether to exclude a particular area from the designation, we However, these rivers are adjacent to the pp. 82–83, p. 90, pp.128–129). Based on installation and not owned by the the above considerations, and in identify the benefits of including the area in the designation, identify the Department of Defense. Therefore, we accordance with section 4(a)(3)(B)(i) of do not propose to exclude them under the Act, we have determined that the benefits of excluding the area from the designation, and evaluate whether the Section 4(b)(2) based on national identified lands are subject to the Fort security concerns. Rucker INRMP and that conservation benefits of exclusion outweigh the efforts identified in the INRMP will benefits of inclusion. If the analysis Other Relevant Impacts provide a benefit to the southern indicates that the benefits of exclusion outweigh the benefits of inclusion, the Under section 4(b)(2) of the Act, we sandshell, southern kidneyshell, consider any other relevant impacts, in Choctaw bean, tapered pigtoe, and fuzzy Secretary may exercise his discretion to exclude the area only if such exclusion addition to economic impacts and pigtoe occurring in habitats within or impacts on national security. We downstream of the Fort Rucker military would not result in the extinction of the species. consider a number of factors, including reservation. Therefore, lands within this whether the landowners have developed installation are exempt from critical Economic Impacts any HCPs or other management plans habitat designation under section 4(a)(3) Under section 4(b)(2) of the Act, we for the area, or whether there are of the Act. Pursuant to this exemption, consider the economic impacts of conservation partnerships that would be we are not including approximately 16 specifying any particular area as critical encouraged by designation of, or mi (25 km) of stream habitat in this habitat. In order to consider economic exclusion from, critical habitat. In proposed critical habitat designation. impacts, we are preparing an analysis of addition, we look at any tribal issues, Eglin Air Force Base (AFB), located in the economic impacts of the proposed and consider the government-to- Niceville, FL, owns the lands adjacent critical habitat designation and related government relationship of the United to the proposed critical habitat factors. States with tribal entities. We also designation (specifically unit GCM5, We will announce the availability of consider any social impacts that might Yellow River Drainage). The lower the draft economic analysis as soon as occur because of the designation. portions of the Shoal and Yellow Rivers it is completed, at which time we will In preparing this proposal, we have form the northwestern boundary of the seek public review and comment. At determined that there are currently no military reservation. However, no that time, copies of the draft economic HCPs or other management plans for the portions of stream or river channels analysis will be available for Alabama pearlshell, round ebonyshell, proposed for critical habitat designation downloading from the Internet at southern sandshell, southern occur within the boundary of the http://www.regulations.gov, or by kidneyshell, Choctaw bean, tapered military reservation, and therefore are contacting the Panama City, FL, Fish pigtoe, narrow pigtoe, and fuzzy pigtoe, not proposed for exemption. These and Wildlife Office directly (see FOR and the proposed designation does not reaches are also currently designated FURTHER INFORMATION CONTACT section). include any tribal lands or trust critical habitat for the Gulf sturgeon During the development of a final resources. We anticipate no impact on (Acipenser oxyrinchus desotoi) (68 FR designation, we will consider economic tribal lands, partnerships, or HCPs from 13370). impacts, public comments, and other this proposed critical habitat Exclusions new information, and areas may be designation. Accordingly, the Secretary excluded from the final critical habitat does not propose to exert his discretion Application of Section 4(b)(2) of the Act designation under section 4(b)(2) of the to exclude any areas from the final Section 4(b)(2) of the Act states that Act and our implementing regulations at designation based on other relevant the Secretary shall designate and make 50 CFR 424.19. impacts.

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Peer Review Regulatory Flexibility Act (a) This rule will not produce a Federal mandate. In general, a Federal In accordance with our joint policy on Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as amended mandate is a provision in legislation, peer review published in the Federal statute, or regulation that would impose Register on July 1, 1994 (59 FR 34270), by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of an enforceable duty upon State, local, or we will seek the expert opinions of at tribal governments, or the private sector, least three appropriate and independent 1996), whenever an agency must publish a notice of rulemaking for any and includes both ‘‘Federal specialists regarding this proposed rule. intergovernmental mandates’’ and The purpose of peer review is to ensure proposed or final rule, it must prepare and make available for public comment ‘‘Federal private sector mandates.’’ that our critical habitat designation is These terms are defined in 2 U.S.C. based on scientifically sound data, a regulatory flexibility analysis that describes the effects of the rule on small 658(5)–(7). ‘‘Federal intergovernmental assumptions, and analyses. We have mandate’’ includes a regulation that invited these peer reviewers to comment entities (small businesses, small organizations, and small government ‘‘would impose an enforceable duty during this public comment period on upon State, local, or [T]ribal our specific assumptions and jurisdictions). However, no regulatory flexibility analysis is required if the governments’’ with two exceptions. It conclusions in this proposed excludes ‘‘a condition of Federal designation of critical habitat. head of the agency certifies the rule will not have a significant economic impact assistance.’’ It also excludes ‘‘a duty We will consider all comments and on a substantial number of small arising from participation in a voluntary information received during this entities. The SBREFA amended RFA to Federal program,’’ unless the regulation comment period on this proposed rule require Federal agencies to provide a ‘‘relates to a then-existing Federal during our preparation of a final statement of the factual basis for program under which $500,000,000 or determination. Accordingly, the final certifying that the rule will not have a more is provided annually to State, decision may differ from this proposal. significant economic impact on a local, and [T]ribal governments under entitlement authority,’’ if the provision Public Hearings substantial number of small entities. At this time, we lack the available would ‘‘increase the stringency of Section 4(b)(5) of the Act provides for economic information necessary to conditions of assistance’’ or ‘‘place caps one or more public hearings on this provide an adequate factual basis for the upon, or otherwise decrease, the Federal proposal, if requested. Requests must be required RFA finding. Therefore, we Government’s responsibility to provide received within 45 days after the date of defer the RFA finding until completion funding,’’ and the State, local, or tribal publication of this proposed rule in the of the draft economic analysis prepared governments ‘‘lack authority’’ to adjust Federal Register. Such requests must be under section 4(b)(2) of the Act and E.O. accordingly. At the time of enactment, sent to the address shown in the 12866. This draft economic analysis will these entitlement programs were: ADDRESSES section. We will schedule provide the required factual basis for the Medicaid; AFDC work programs; Child public hearings on this proposal, if any RFA finding. Upon completion of the Nutrition; Food Stamps; Social Services are requested, and announce the dates, draft economic analysis, we will Block Grants; Vocational Rehabilitation times, and places of those hearings, as announce availability of the draft State Grants; Foster Care, Adoption well as how to obtain reasonable economic analysis of the proposed Assistance, and Independent Living; accommodations, in the Federal designation in the Federal Register and Family Support Welfare Services; and Register and local newspapers at least reopen the public comment period for Child Support Enforcement. ‘‘Federal 15 days before the hearing. the proposed designation. We will private sector mandate’’ includes a regulation that ‘‘would impose an Required Determinations include with this announcement, as appropriate, an initial regulatory enforceable duty upon the private Regulatory Planning and Review— flexibility analysis or a certification that sector, except (i) A condition of Federal Executive Order 12866 the rule will not have a significant assistance or (ii) a duty arising from economic impact on a substantial participation in a voluntary Federal The Office of Management and Budget number of small entities accompanied program.’’ (OMB) has determined that this rule is by the factual basis for that The designation of critical habitat not significant and has not reviewed determination. This includes does not impose a legally binding duty this proposed rule under Executive information on hydroelectric generation, on non-Federal entities or private Order 12866 (E.O. 12866). OMB bases transportation, mining, permitted parties. Under the Act, the only its determination upon the following discharges, as well as other economic regulatory effect is that Federal agencies four criteria: factors within the Escambia, Yellow, must ensure that their actions do not (1) Whether the rule will have an and Choctawhatchee River basins. We destroy or adversely modify critical annual effect of $100 million or more on have concluded that deferring the RFA habitat under section 7. While non- the economy or adversely affect an finding until completion of the draft Federal entities that receive Federal economic sector, productivity, jobs, the economic analysis is necessary to meet funding, assistance, or permits, or that environment, or other units of the the purposes and requirements of the otherwise require approval or government. RFA. Deferring the RFA finding in this authorization from a Federal agency for (2) Whether the rule will create manner will ensure that we make a an action, may be indirectly impacted inconsistencies with other Federal sufficiently informed determination by the designation of critical habitat, the agencies’ actions. based on adequate economic legally binding duty to avoid information and provide the necessary destruction or adverse modification of (3) Whether the rule will materially opportunity for public comment. critical habitat rests squarely on the affect entitlements, grants, user fees, Federal agency. Furthermore, to the loan programs, or the rights and Unfunded Mandates Reform Act extent that non-Federal entities are obligations of their recipients. In accordance with the Unfunded indirectly impacted because they (4) Whether the rule raises novel legal Mandates Reform Act (2 U.S.C. 1501 et receive Federal assistance or participate or policy issues. seq.), we make the following findings: in a voluntary Federal aid program, the

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Unfunded Mandates Reform Act would Where State and local governments Clarity of the Rule not apply, nor would critical habitat require approval or authorization from a We are required by Executive Orders shift the costs of the large entitlement Federal agency for actions that may 12866 and 12988 and by the programs listed above onto State affect critical habitat, consultation Presidential Memorandum of June 1, governments. under section 7(a)(2) would be required. 1998, to write all rules in plain (b) We do not believe that the While non-Federal entities that receive language. This means that each rule we Federal funding, assistance, or permits, proposed designation of critical habitat publish must: or that otherwise require approval or for the Alabama pearlshell, round (a) Be logically organized; authorization from a Federal agency for ebonyshell, southern kidneyshell, (b) Use the active voice to address an action, may be indirectly impacted southern sandshell, Choctaw bean, readers directly; by the designation of critical habitat, the tapered pigtoe, narrow pigtoe, and fuzzy (c) Use clear language rather than legally binding duty to avoid pigtoe will significantly or uniquely jargon; destruction or adverse modification of affect small governments because these (d) Be divided into short sections and critical habitat rests squarely on the mussel species occur primarily in State- sentences; and Federal agency. owned river channels, or in remote (e) Use lists and tables wherever privately owned stream channels. As Civil Justice Reform possible. such, a Small Government Agency Plan In accordance with E.O. 12988 (Civil If you feel that we have not met these is not required. We will, however, Justice Reform), the Office of the requirements, send us comments by one further evaluate this issue as we Solicitor has determined that the rule of the methods listed in the ADDRESSES conduct our economic analysis and does not unduly burden the judicial section. To better help us revise the revise this assessment if appropriate. system and that it meets the rule, your comments should be as Takings requirements of sections 3(a) and 3(b)(2) specific as possible. For example, you of the Order. We have proposed should tell us the numbers of the In accordance with E.O. 12630 designating critical habitat in sections or paragraphs that are unclearly (Government Actions and Interference accordance with the provisions of the written, which sections or sentences are with Constitutionally Protected Private Act. This proposed rule uses standard too long, the sections where you feel Property Rights), we have analyzed the property descriptions and identifies the lists or tables would be useful, etc. potential takings implications of physical and biological features within designating critical habitat for the Government-to-Government the designated areas to assist the public Relationship With Tribes Alabama pearlshell, round ebonyshell, in understanding the habitat needs of southern sandshell, southern the Alabama pearlshell, round In accordance with the President’s kidneyshell, Choctaw bean, tapered ebonyshell, southern kidneyshell, memorandum of April 29, 1994, pigtoe, narrow pigtoe, and fuzzy pigtoe southern sandshell, Choctaw bean, Government-to-Government Relations in a takings implications assessment. tapered pigtoe, narrow pigtoe, and fuzzy with Native American Tribal The takings implications assessment pigtoe. Governments (59 FR 22951), E.O. 13175, concludes that this designation of and the Department of the Interior’s critical habitat for the eight species does Paperwork Reduction Act of 1995 manual at 512 DM 2, we readily not pose significant takings implications This rule does not contain any new acknowledge our responsibility to for lands within or affected by the collections of information that require communicate meaningfully with designation. approval by OMB under the Paperwork recognized Federal Tribes on a Federalism Reduction Act of 1995 (44 U.S.C. 3501 government-to-government basis. In et seq.). This rule will not impose accordance with Secretarial Order 3206 In accordance with E.O. 13132 recordkeeping or reporting requirements of June 5, 1997 (American Indian Tribal (Federalism), this proposed rule does on State or local governments, Rights, Federal-Tribal Trust not have significant Federalism effects. individuals, businesses, or Responsibilities, and the Endangered A Federalism assessment is not organizations. An agency may not Species Act), we readily acknowledge required. In keeping with Department of conduct or sponsor, and a person is not our responsibilities to work directly the Interior and Department of required to respond to, a collection of with Tribes in developing programs for Commerce policy, we requested information unless it displays a healthy ecosystems, to acknowledge that information from, and coordinated currently valid OMB control number. tribal lands are not subject to the same development of, this proposed critical controls as Federal public lands, to habitat designation with appropriate National Environmental Policy Act remain sensitive to Indian culture, and State resource agencies in Alabama and (NEPA) to make information available to Tribes. Florida. The designation may have some It is our position that, outside the We have determined that there are no benefit to these governments because jurisdiction of the U.S. Court of Appeals Tribal lands occupied at the time of the areas that contain the physical and for the Tenth Circuit, we do not need to listing that contain the features essential biological features essential to the prepare environmental analyses as for the conservation of, and no Tribal conservation of the species are more defined by NEPA (42 U.S.C. 4321 et lands that are essential for the clearly defined, and the features of the seq.) in connection with listing a species conservation of, these eight species. habitat necessary to the conservation of or designating critical habitat under the Therefore, we have not proposed the species are specifically identified. Act. We published a notice outlining designation of critical habitat for any of This information does not alter where our reasons for this determination in the the eight species on Tribal lands. and what federally sponsored activities Federal Register on October 25, 1983 may occur. However, it may assist local (48 FR 49244). This position was upheld Energy Supply, Distribution, or Use governments in long-range planning by the U.S. Court of Appeals for the On May 18, 2001, the President issued (rather than having them wait for case- Ninth Circuit (Douglas County v. an Executive Order (E.O. 13211; Actions by-case section 7 consultations to Babbitt, 48 F.3d 1495 (9th Cir. 1995), Concerning Regulations That occur). cert. denied 516 U.S. 1042 (1996)). Significantly Affect Energy Supply,

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Distribution, or Use) on regulations that threat to the species discussed in this Proposed Regulation Promulgation significantly affect energy supply, rule. All other proposed units are Accordingly, we propose to amend distribution, and use. E.O. 13211 remote from energy supply, distribution, part 17, subchapter B of chapter I, title requires agencies to prepare Statements or use activities. Therefore, this action 50 of the Code of Federal Regulations, of Energy Effects when undertaking is not a significant energy action, and no as set forth below: certain actions. We do not expect the Statement of Energy Effects is required. designation of critical habitat for the However, we will further evaluate this PART 17—ENDANGERED AND Alabama pearlshell, round ebonyshell, issue as we conduct our economic THREATENED WILDLIFE AND PLANTS southern sandshell, southern analysis, and review and revise this kidneyshell, Choctaw bean, tapered assessment as warranted. 1. The authority citation for part 17 pigtoe, narrow pigtoe, or fuzzy pigtoe to References Cited continues to read as follows: significantly affect energy supplies, A complete list of references cited is Authority: 16 U.S.C. 1361–1407; 16 U.S.C. distribution, or use. Although one of the available on the Internet at http:// 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– proposed units is below hydropower 625, 100 Stat. 3500; unless otherwise noted. www.regulations.gov and upon request reservoirs, current and proposed from the Panama City Field Office (see 2. Amend § 17.11(h) by adding: operating regimes have been deemed FOR FURTHER INFORMATION CONTACT). ‘‘bean, Choctaw,’’ ‘‘ebonyshell, adequate for the species, and therefore round,’’ ‘‘kidneyshell, southern,’’ their operations will not be affected by Author(s) ‘‘pearlshell, Alabama’’, ‘‘pigtoe, fuzzy’’, the proposed listing or designation of The primary author of this package is ‘‘pigtoe, narrow’’, ‘‘pigtoe, tapered’’, and critical habitat. As discussed in the Sandra Pursifull of the Panama City, FL, ‘‘sandshell, southern’’ in alphabetical ‘‘Summary of Factors Affecting the Fish and Wildlife Field Office. order under ‘‘CLAMS’’ to the List of Species’’ section, there is a large Endangered and Threatened Wildlife to List of Subjects in 50 CFR Part 17 concentration of oil wells located in read as follows: Conecuh and Escambia Counties, Endangered and threatened species, Alabama. Although this activity Exports, Imports, Reporting and § 17.11 Endangered and threatened primarily affects Units AP2 and GCM1, recordkeeping requirements, wildlife. we do not believe it is a significant Transportation. (h) * * *

Species Vertebrate population where Spe- Historic endan- Status When listed Critical cial Common name Scientific name range gered or habitat rules threat- ened

******* CLAMS ......

******* bean, Choctaw ...... Villosa choctawensis ...... U.S.A. (AL, NA E ...... 17.95(f) NA FL)

******* ebonyshell, round ...... Fusconaia rotulata ...... U.S.A. (AL, NA E ...... 17.95(f) NA FL)

******* kidneyshell, southern ...... Ptychobranchus jonesi ...... U.S.A. (AL, NA E ...... 17.95(f) NA FL)

******* pearlshell, Alabama ...... Margaritifera marrianae ...... U.S.A. (AL) NA E ...... 17.95(f) NA

******* pigtoe, fuzzy ...... Pleurobema strodeanum ...... U.S.A. (AL, NA T ...... 17.95(f) NA FL)

******* pigtoe, narrow ...... Fusconaia escambia ...... U.S.A. (AL, NA T ...... 17.95(f) NA FL)

******* pigtoe, tapered ...... Fusconaia burkei ...... U.S.A. (AL, NA T ...... 17.95(f) NA FL)

******* sandshell, southern ...... Hamiota australis ...... U.S.A. (AL, NA E ...... 17.95(f) NA FL)

*******

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3. In § 17.95, amend paragraph (f) by maintain lateral dimensions, the legal boundaries on the effective adding an entry for ‘‘eight mussel longitudinal profiles, and sinuosity date of this rule, with the exception of species in four northeastern Gulf of patterns over time without an aggrading the impoundments created by Point A Mexico drainages’’ and in the same or degrading bed elevation. and Gantt Lake dams (impounded alphabetical order that the species (ii) Stable substrates of sand or water, not the actual dam structures). appears in the table at § 17.11(h), to read mixtures of sand with clay or gravel (4) Critical habitat map units. Data as follows: with low to moderate amounts of fine layers defining map units were created sediment and attached filamentous with USGS National Hydrography § 17.95 Critical habitat—fish and wildlife. algae. Dataset (NHD) GIS data. The 1:100,000 * * * * * (iii) A hydrologic flow regime (the river reach (route) files were used to (f) Clams and Snails. magnitude, frequency, duration, and calculate river kilometers and miles. * * * * * seasonality of discharge over time) ESRIs ArcGIS 9.3.1 software was used to Eight mussel species in three necessary to maintain benthic habitats determine longitude and latitude northeast Gulf of Mexico drainages: the where the species are found; and to coordinates using decimal degrees. The Choctaw bean (Villosa choctawensis), maintain connectivity of rivers with the projection used in mapping all units round ebonyshell (Fusconaia rotulata), floodplain, allowing the exchange of was Universal Transverse Mercator southern kidneyshell (Ptychobranchus nutrients and sediment for habitat (UTM), NAD 83, Zone 16 North. The jonesi), Alabama pearlshell maintenance, food availability, and following data sources were referenced (Margaritifera marrianae), fuzzy pigtoe spawning habitat for native fishes. to identify features (like roads and (Pleurobema strodeanum), narrow (iv) Water quality, including streams) used to delineate the upstream pigtoe (Fusconaia escambia), tapered temperature (not greater than 32 °C), pH and downstream extents of critical pigtoe (Fusconaia burkei), and southern (between 6.0 to 8.5), oxygen content (not habitat units: NHD data, Washington sandshell (Hamiota australis). less than 5.0 mg/L), hardness, turbidity, County USFWS National Wetlands (1) Critical habitat units are and other chemical characteristics Inventory, 1999 Florida Department of designated in the following counties: necessary for normal behavior, growth, Transportation Roads Characteristics (i) Alabama. Barbour, Bullock, Butler, and viability of all life stages. Inventory (RCI) dataset, U.S. Census Coffee, Conecuh, Covington, Crenshaw, (v) The presence of fish hosts. Diverse Bureau 2000 TIGER line waterbody Dale, Escambia, Geneva, Henry, assemblages of native fish species will data, ESRIs World Street Map Service, Houston, Monroe, and Pike Counties. serve as a potential indication of host Florida Department of Transportation (ii) Florida. Bay, Escambia, Holmes, fish presence until appropriate host General Highway Maps, DeLorme Atlas Jackson, Okaloosa, Santa Rosa, Walton, fishes can be identified. For the fuzzy and Gazetteers, and USGS 7.5 minute and Washington Counties. pigtoe and tapered pigtoe, the presence topographic maps. (2) The primary constituent elements of blacktail shiner (Cyprinella venusta) (5) Note: Index map of critical habitat of critical habitat for the Alabama will serve as a potential indication of units for the Alabama pearlshell, and pearlshell, round ebonyshell, southern fish host presence. index map of critical habitat units for sandshell, southern kidneyshell, (3) Critical habitat does not include the round ebonyshell, southern Choctaw bean, tapered pigtoe, narrow manmade structures (such as buildings, sandshell, southern kidneyshell, pigtoe, and fuzzy pigtoe are: aqueducts, runways, dams, roads, and Choctaw bean, tapered pigtoe, narrow (i) Geomorphically stable stream and other paved areas) and the land on pigtoe, and fuzzy pigtoe follows: river channels and banks (channels that which they are located existing within BILLING CODE 4310–55–P

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(6) Unit AP1: Big Flat Creek Drainage, (11mi), Monroe and Wilcox Counties, (i) The unit includes the mainstem of Monroe and Wilcox Counties, AL. This AL. Burnt Corn Creek from its confluence unit is critical habitat for the Alabama (ii) Note: Map of Unit AP1, Big Flat with Murder Creek upstream 66 km (41 pearlshell. Creek Drainage, and Unit AP2, Burnt mi), Conecuh County, AL; the mainstem (i) The unit includes the mainstem of Corn Creek, Murder Creek, and Sepulga of Murder Creek from its confluence Big Flat Creek from Hwy 41 upstream 56 River Drainages, are combined and with Jordan Creek upstream 17 km (11 km (35 mi), Monroe County, AL; Flat follows the Unit AP2 description. mi) to the confluence of Otter Creek, Creek from its confluence with Big Flat (7) Unit AP2: Burnt Corn Creek, Conecuh County, AL; Jordan Creek from Creek upstream 20 km (12 mi), Monroe Murder Creek, and Sepulga River its confluence with Murder Creek upstream 12 km (7 mi), Conecuh County, AL; and Dailey Creek from its Drainages, Escambia and Conecuh Counties, AL. This unit is critical County, AL; Otter Creek from its confluence Flat Creek upstream 17 km habitat for the Alabama pearlshell. confluence with Murder Creek,

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upstream 9 km (5.5 mi), Conecuh other from it confluence with the upstream 3 km (2 mi), Conecuh County, County, AL; Hunter Creek from its previous unnamed tributary upstream AL; and Bottle Creek from its confluence with Murder Creek upstream 2.5 km (1.5 mi) to just above Hagood confluence with the Sepulga River 8 km (5 mi), Conecuh County, AL; Road; Little Cedar Creek from County upstream 5.5 km (3.5 mi) to County Sandy Creek from County Road 29 Road 6 upstream 8 km (5 mi), Conecuh Road 42, Conecuh County, AL. upstream 5 km (3.5 mi), Conecuh County, AL; Amos Mill Creek from its (ii) Note: Map of Unit AP1, Big Flat County, AL; two unnamed tributaries to confluence with the Sepulga River Sandy Creek—one from its confluence upstream 12 km (8 mi), Escambia and Creek Drainage, and Unit AP2, Burnt with Sandy Creek upstream 8.5 km (5.0 Conecuh Counties, AL; Polly Creek from Corn Creek, Murder Creek, and Sepulga mi) to just above Hagood Road and the its confluence with Amos Mill Creek River Drainages, follows:

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(8) Unit GCM1: Lower Escambia River (37 mi) to County Road 20, Conecuh County upstream 36 km (22 mi) to the Drainage in Escambia and Santa Rosa County, AL; Jordan Creek from its confluence of Mashy Creek, Butler Counties, FL, and Escambia, Covington, confluence with Murder Creek, County, AL; Panther Creek from its Conecuh, and Butler Counties, AL. This upstream 5.5 km (3.5 mi) to Interstate confluence with Persimmon Creek unit is critical habitat for the round 65, Conecuh County, AL; Mill Creek upstream 11 km (7 mi) to State Route ebonyshell, southern sandshell, from its confluence with Murder Creek 106, Butler County, AL; Pigeon Creek southern kidneyshell, Choctaw bean, upstream 2.5 km (1.5 mi) to the from its confluence with the Sepulga narrow pigtoe, and fuzzy pigtoe. confluence of Sandy Creek, Conecuh River, Conecuh and Covington Counties (i) The unit includes the Escambia- County, AL; Sandy Creek from its upstream 89 km (55 mi) to the Conecuh River mainstem from the confluence with Mill Creek upstream confluence of Three Run Creek, Butler confluence of Spanish Mill Creek 5.5 km (3.5 mi) to County Road 29, County, AL; and Three Run Creek from Escambia and Santa Rosa Counties, FL Conecuh County, AL; Sepulga River its confluence with Pigeon Creek upstream 204 km (127 mi) to the Point from its confluence with the Conecuh upstream 9 km (5.5 mi) to the A Lake dam, Covington County, AL; River upstream 69 km (43 mi) to the confluence of Spring Creek, Butler Murder Creek from its confluence with confluence of Persimmon Creek, County, AL. the Conecuh River, Escambia County, Conecuh County, AL; Bottle Creek from AL upstream 62 km (38 mi) to the its confluence with the Sepulga River (ii) Note: Map of Unit GCM1, Lower confluence of Cane Creek, Conecuh upstream 5.5 km (3.5 mi) to County Escambia River, follows (to preserve County, AL; Burnt Corn Creek from its Road 42, Conecuh County, AL; detail, the map is divided into south confluence with Murder Creek, Persimmon Creek from its confluence and north sections): Escambia County, AL, upstream 59 km with the Sepulga River, Conecuh BILLING CODE 4310–55–P

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(9) Unit GCM2: Point A Lake and (i) The unit extends from Point A (ii) Note: Map of Unit GCM2, Point A Gantt Lake Reservoirs in Covington Dam, Covington County, upstream 21 Lake and Gantt Lake Reservoirs, follows: County, AL. This unit is critical habitat km (13 mi) to the Covington-Crenshaw for the narrow pigtoe. County line, AL.

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(10) Unit GCM3: Patsaliga Creek (i) The unit includes Patsaliga Creek Road, Crenshaw County, AL; and Drainage in Covington, Crenshaw, and from its confluence with Point A Lake Olustee Creek from its confluence with Pike Counties, AL. The Patsaliga Creek at County Road 59, Covington County, Patsaliga Creek upstream 12 km (8 mi) drainage is within the Escambia River AL, upstream 108 km (67 mi) to to County Road 5, Pike County, AL. basin. This unit is critical habitat for the Crenshaw County Road 66–Pike County (ii) Note: Map of Unit GCM3, Patsaliga southern sandshell, southern Road 1, AL; Little Patsaliga Creek from Creek Drainage follows: kidneyshell, Choctaw bean, narrow its confluence with Patsaliga Creek pigtoe, and fuzzy pigtoe. upstream 28 km (17 mi) to Mary Daniel

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(11) Unit GCM4: Upper Escambia (i) The unit includes the Conecuh confluence of Mill Creek, Pike County, River Drainage in Covington, Crenshaw, River from its confluence with Gantt AL; and Mill Creek from its confluence Pike, and Bullock Counties, AL. This Lake reservoir at the Covington- with Beeman Creek, upstream 4.5 km (3 unit is critical habitat for the southern Crenshaw County line upstream 126 km mi) to County Road 13, Pike County, sandshell, southern kidneyshell, (78 mi) to County Road 8, Bullock AL. County, AL; Beeman Creek from its Choctaw bean, narrow pigtoe, and fuzzy (ii) Note: Map of Unit GCM 4, Upper pigtoe. confluence with the Conecuh River upstream 6.5 km (4 mi) to the Escambia River Drainage, follows:

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(12) Unit GCM5: Yellow River 87), Santa Rosa County, FL, upstream County, FL; Five Runs Creek from its Drainage in Santa Rosa, Okaloosa, and 157 km (97 mi) to County Road 42, confluence with the Yellow River Walton Counties, FL; and Covington Covington County, AL; the Shoal River upstream 15 km (9.5 mi) to County Road County, AL. This unit is critical habitat mainstem from its confluence with the 31, Covington County, AL; and Hollis for the southern sandshell, Choctaw Yellow River upstream 51 km (32 mi) to Creek from its confluence with the bean, narrow pigtoe, and fuzzy pigtoe. the confluence of Mossy Head Branch, Yellow River upstream 5.5 km (3.5 mi) (i) The unit includes the Yellow River Walton County, FL; Pond Creek from its to County Road 42, Covington County, mainstem from the confluence of confluence with the Shoal River AL. Weaver River, (a distributary located 0.9 upstream 24 km (15 mi) to the (ii) Note: Map of Unit GCM5, Yellow km (0.6 mi) downstream of State Route confluence of Fleming Creek, Walton River Drainage, follows:

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BILLING CODE 4310–55–C (i) The unit includes the channel forming Cowford Island from (13) Unit GCM6: Choctawhatchee Choctawhatchee River mainstem from its downstream confluence with the River and Lower Pea River Drainages in the confluence of Pine Log Creek, Choctawhatchee River upstream 3 km (2 Walton, Washington, Bay, Holmes, and Walton County, FL upstream 200 km mi) to its upstream confluence with the Jackson Counties, FL; and Geneva, (125 mi) to the point the river splits into river, Washington County, FL; Crews Coffee, Dale, Houston, Henry, Pike, and the West Fork Choctawhatchee and East Lake from its western terminus 1.5 km Barbour Counties, AL. This unit is Fork Choctawhatchee Rivers, Barbour (1 mi) to its eastern terminus, critical habitat for the southern County, AL; Pine Log Creek from its Washington County, FL (Crews Lake is sandshell, southern kidneyshell, confluence with the Choctawhatchee a relic channel southwest of Cowford Choctaw bean, tapered pigtoe, and fuzzy River, Walton County upstream 19 km Island, and is disconnected from the pigtoe. (12 mi) to Ditch Branch, Washington Cowford Island channel, except during and Bay Counties, FL; an unnamed high flows); Holmes Creek from its

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confluence with the Choctawhatchee Limestone Creek from its confluence from its confluence with Little River, Washington County, FL upstream with the Pea River upstream 8.5 km (5 Choctawhatchee River, upstream 4.5 km 98 km (61 mi) to County Road 4, Geneva mi) to Woods Road, Walton County, FL; (2.5 mi) to the confluence of Gilley Mill County, AL; Alligator Creek from its Flat Creek from the Pea River upstream Branch, Houston County, AL; Bear confluence with Holmes Creek upstream 17 km (10 mi) to the confluence of Creek from its confluence with the Little 6.5 km (4 mi) to County Road 166, Panther Creek, Geneva County, AL; Choctawhatchee River, upstream 5.5 km Washington County, FL; Bruce Creek Eightmile Creek from its confluence (3.5 mi) to County Road 40 (Fortner from its confluence with the with Flat Creek, Geneva County, AL Street), Houston County, AL; West Fork Choctawhatchee River upstream 25 km upstream 15 km (9 mi) to the confluence Choctawhatchee River from its (16 mi) to the confluence of an unnamed of Dry Branch (first tributary upstream confluence with the Choctawhatchee tributary, Walton County, FL; Sandy of County Road 181), Walton County, River, Dale County upstream 54 km (33 Creek from its confluence with the FL; Corner Creek from its confluence mi) to the fork of Pauls Creek and Choctawhatchee River, upstream 30 km with Eightmile Creek, upstream 5 km (3 Lindsey Creek, Barbour County, AL; (18 mi) to the confluence of West Sandy mi) to State Route 54, Geneva County, Judy Creek from its confluence with Creek, Holmes and Walton Counties, FL; AL; Natural Bridge Creek from its West Fork Choctawhatchee River Blue Creek from its confluence with confluence with Eightmile Creek, upstream 17 km (11 mi) to County Road Sandy Creek, upstream 7 km (4.5 mi) to Geneva County, AL, upstream 4 km (2.5 13, Dale County, AL; Sikes Creek from the confluence of Goose Branch, Holmes mi) to the Covington-Geneva County its confluence with West Fork County, FL; West Sandy Creek from its line, AL; Double Bridges Creek from the Choctawhatchee River Dale County confluence with Sandy Creek, upstream Choctawhatchee River, Geneva County upstream 8.5 km (5.5 mi) to State Route 5.5 km (3.5 mi) to the confluence of an upstream 46 km (29 mi) to the 10, Barbour County, AL; Pauls Creek unnamed tributary, Walton County, FL; confluence of Blanket Creek, Coffee from its confluence with West Fork Wrights Creek from its confluence with County, AL; Claybank Creek from the Choctawhatchee River upstream 7 km the Choctawhatchee River, Holmes Choctawhatchee River, Geneva County (4.5 mi) to one mile upstream of County County, FL, upstream 43 km (27 mi) to upstream 22 km (14 mi) to the Fort Road 20, Barbour County, AL; Lindsey County Road 4, Geneva County, AL; Rucker military reservation southern Creek from its confluence with West Tenmile Creek from its confluence with boundary, Dale County, AL; Claybank Fork Choctawhatchee River upstream 14 Wrights Creek upstream 6 km (3.5 mi) Creek from the Fort Rucker military km (8.5 mi) to the confluence of an to the confluence of Rice Machine reservation northern boundary, unnamed tributary, Barbour County, AL; Branch, Holmes County, FL; West upstream 6 km (4 mi) to County Road an unnamed tributary to Lindsey Creek Pittman Creek from its confluence with 36, Dale County, AL; Steep Head Creek from its confluence with Lindsey Creek the Choctawhatchee River, upstream 6.5 from the Fort Rucker military upstream 2.5 km (1.5 mi) to 1.0 mile km (4 mi) to Fowler Branch, Holmes reservation western boundary, upstream upstream of County Road 53, Barbour County, FL; East Pittman Creek from its 4 km (2.5 mi) to County Road 156, County, AL; and East Fork confluence with the Choctawhatchee Coffee County, AL; Hurricane Creek Choctawhatchee River from its River upstream 4.5 km (3 mi) to County from its confluence with the confluence with Choctawhatchee River, Road 179, Holmes County, FL; Parrot Choctawhatchee River upstream 14 km Dale County upstream 71 km (44 mi) to Creek from its confluence with the (8.5 mi) to State Route 52, Geneva County Road 71, Barbour County, AL. Choctawhatchee River upstream 6 km (4 County, AL; Little Choctawhatchee (ii) Note: Map of Unit GCM6, mi) to Tommy Lane, Holmes County, River from its confluence with the Choctawhatchee River and Lower Pea FL; the Pea River from its confluence Choctawhatchee River, Dale and River Drainages, follows (to preserve with the Choctawhatchee River, Geneva Houston Counties upstream 20 km (13 detail, the map is divided into south, County upstream 91 km (57 mi) to the mi) to the confluence of Newton Creek, central, and north sections): Elba Dam, Coffee County, AL; Houston County, AL; Panther Creek BILLING CODE 4310–55–P

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(16) Unit GCM7: Upper Pea River State Route 239, Bullock and Barbour confluence of Smart Branch, Pike Drainage in Coffee, Dale, Pike, Barbour, Counties, AL; Whitewater Creek from its County, AL; Big Creek (Barbour County and Bullock Counties, AL. The Pea confluence with the Pea River, Coffee Big Creek) from its confluence with the River drainage is within the County upstream 45 km (28 mi) to the Pea River upstream 10 km (6 mi) to the Choctawhatchee River Basin. This unit confluence of Walnut Creek, Pike confluence of Sand Creek, Barbour is critical habitat for the southern County, AL; Walnut Creek from its County, AL; Pea Creek from its sandshell, southern kidneyshell, confluence with Whitewater Creek confluence with the Pea River upstream Choctaw bean, tapered pigtoe, and fuzzy upstream 14 km (9 mi) to County Road 6 km (4 mi) to the confluence of pigtoe. 26, Pike County, AL; Big Creek (Coffee Hurricane Creek, Barbour County, AL; (i) The unit includes the Pea River County Big Creek) from its confluence and Big Sandy Creek from its mainstem from the Elba dam, Coffee with Whitewater Creek, Coffee County confluence with the Pea River upstream County upstream 123 km (76 mi) to upstream 30 km (18 mi) to the

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6.5 km (4 mi) to County Road 14, (ii) Note: Map of Unit GCM7, Upper Bullock County, AL. Pea River Drainage, follows:

* * * * * Dated: September 7, 2011. Rowan W. Gould, Acting Director, U.S. Fish and Wildlife Service. [FR Doc. 2011–24519 Filed 10–3–11; 8:45 am] BILLING CODE 4310–55–C

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Part III

Department of the Interior

Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List 10 Subspecies of Great Basin Butterflies as Threatened or Endangered With Critical Habitat; Proposed Rule

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DEPARTMENT OF THE INTERIOR Portal (see ADDRESSES section, below), skipper (Hesperia uncas reeseorum), the deadline for submitting an Carson Valley wood nymph (Cercyonis Fish and Wildlife Service electronic comment is 11:59 p.m. pegala carsonensis), Steptoe Valley Eastern Standard Time on this date. crescentspot (Phyciodes cocyta 50 CFR Part 17 After December 5, 2011, you must arenacolor), Mattoni’s blue butterfly [FWS–R8–ES–2010–0097; 92210–1111– submit information directly to the Field (Euphilotes pallescens mattonii), and 0000–B2] Office (see FOR FURTHER INFORMATION White River Valley skipper (Hesperia CONTACT section below). Please note that uncas grandiose). Endangered and Threatened Wildlife we might not be able to address or Based on our review, we find that the and Plants; 90-Day Finding on a incorporate information that we receive petition presents substantial scientific Petition To List 10 Subspecies of Great after the above requested date. or commercial information indicating Basin Butterflies as Threatened or ADDRESSES: You may submit that listing 4 of the 10 subspecies as Endangered With Critical Habitat information by one of the following threatened or endangered may be warranted, and we find that the petition AGENCY: Fish and Wildlife Service, methods: • does not present substantial scientific or Interior. Federal eRulemaking Portal: http:// www.regulations.gov. Follow the commercial information indicating that ACTION: Notice of petition finding and instructions for submitting comments to listing the remaining 6 of the 10 initiation of status review. Docket No. FWS–R8–ES–2010–0097. subspecies as threatened or endangered SUMMARY: We, the U.S. Fish and Check the box that reads ‘‘Open for may be warranted. Wildlife Service (Service), announce a Comment/Submission,’’ and then click Request for Information 90-day finding on a petition to list 10 the Search button. You should then see subspecies of Great Basin butterflies in an icon that reads ‘‘Submit a Comment.’’ When we make a finding that a Nevada and California as threatened or Please ensure that you have found the petition presents substantial endangered under the Endangered correct rulemaking before submitting information indicating that listing a Species Act of 1973, as amended (Act), your comment. species may be warranted, we are and designate critical habitat. Based on • U.S. mail or hand-delivery: Public required to promptly review the status our review, we find that the petition Comments Processing, Attn: Docket No. of the species (status review). For the presents substantial scientific or FWS–R8–ES–2010–0097; Division of status review to be complete and based commercial information indicating that Policy and Directives Management; U.S. on the best available scientific and listing the following 4 of the 10 Fish and Wildlife Service; 4401 N. commercial information, we request subspecies as threatened or endangered Fairfax Drive, MS 2042–PDM; information on the four subspecies of may be warranted: Baking Powder Flat Arlington, VA 22203. butterflies from governmental agencies, blue butterfly, bleached sandhill We will post all information we Native American Tribes, the scientific skipper, Steptoe Valley crescentspot, receive on http://www.regulations.gov. community, industry, and any other and White River Valley skipper. This generally means that we will post interested parties. We seek information Therefore, with the publication of this any personal information you provide on: notice, we are initiating a review of the us (see the Request for Information (1) The species’ biology, range, and status of these four subspecies to section below for more details). population trends, including: (a) Habitat requirements for feeding, determine if listing these subspecies is FOR FURTHER INFORMATION CONTACT: Jill breeding, and sheltering; warranted. To ensure that this status A. Ralston, Acting State Supervisor, Nevada Fish and Wildlife Office, U.S. (b) Genetics and taxonomy; review is comprehensive, we are (c) Historical and current range Fish and Wildlife Service, 1340 requesting scientific and commercial including distribution patterns; Financial Blvd., Suite 234, Reno, NV data and other information regarding (d) Historical and current population 89502, by telephone (775–861–6300), or these four subspecies. Based on the levels, and current and projected trends; by facsimile (775–861–6301). If you use status review, we will issue a 12-month and finding on these four subspecies, which a telecommunications device for the (e) Past and ongoing conservation will address whether the petitioned deaf (TDD), please call the Federal measures for the species, its habitat or action is warranted under the Act. Information Relay Service (FIRS) at both. We find that the petition does not 800–877–8339. (2) The factors that are the basis for present substantial scientific or SUPPLEMENTARY INFORMATION: We making a listing determination for a commercial information indicating that announce a 90-day finding on a petition species under section 4(a) of the Act (16 listing the remaining 6 of the 10 to list 10 subspecies of Great Basin U.S.C. 1531 et seq.), which are: subspecies as threatened or endangered butterflies in Nevada and California as (a) The present or threatened may be warranted: Carson Valley threatened or endangered under the Act destruction, modification, or silverspot, Carson Valley wood nymph, and designate critical habitat. The curtailment of its habitat or range; Mattoni’s blue butterfly, Mono Basin petitioners had requested that we list (b) Overutilization for commercial, skipper, and the two Railroad Valley following 10 subspecies of Great Basin recreational, scientific, or educational skipper subspecies. However, we ask butterflies in Nevada and California as purposes; the public to submit to us any new threatened or endangered under the Act (c) Disease or predation; information that becomes available and designate critical habitat: Baking (d) The inadequacy of existing concerning the status of, or threats to, Powder Flat blue butterfly (Euphilotes regulatory mechanisms; or these four subspecies or their habitat at bernardino minuta), Mono Basin (e) Other natural or manmade factors any time. skipper (Hesperia uncas giulianii), affecting its continued existence. DATES: To allow us adequate time to bleached sandhill skipper (Polites If, after the status review, we conduct this review, we request that we sabuleti sinemaculata), Railroad Valley determine that listing any of the six receive information on or before skipper (Hesperia uncas fulvapalla), subspecies is warranted, we will December 5, 2011. Please note that if Carson Valley silverspot (Speyeria propose critical habitat (see definition you are using the Federal eRulemaking nokomis carsonensis), Railroad Valley in section 3(5)(A) of the Act), under

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section 4 of the Act, to the maximum available for you to review at http:// and critical habitat actions in Fiscal extent prudent and determinable at the www.regulations.gov, or you may make Year 2010 pursuant to court orders, time we propose to list the species. an appointment during normal business judicially approved settlement Therefore, within the geographical range hours at the U.S. Fish and Wildlife agreements, and other statutory currently occupied by the six Service, Nevada Fish and Wildlife deadlines, we were able to secure subspecies, we request data and Office (see FOR FURTHER INFORMATION funding in Fiscal Year 2010 to begin information on: CONTACT). work on the initial finding to determine (1) What may constitute ‘‘physical or Background whether the petition provides biological features essential to the substantial information indicating that conservation of the species’’; Section 4(b)(3)(A) of the Act requires the action may be warranted. This (2) Where these features are currently that we make a finding on whether a finding addresses the petition. found; and petition to list, delist, or reclassify a (3) Whether any of these features may species presents substantial scientific or Previous Federal Actions require special management commercial information indicating that considerations or protection. the petitioned action may be warranted. On May 22, 1984, we added Mattoni’s In addition, we request data and We are to base this finding on blue butterfly as Euphilotes information on ‘‘specific areas outside information provided in the petition, (=Shijimiaeoides) rita mattonii to our the geographical area occupied by the supporting information submitted with list of candidate species as a Category 2 species’’ that are ‘‘essential to the the petition, and information otherwise candidate species (49 FR 21664). This conservation of the species.’’ Please available in our files. To the maximum subspecies is currently known as provide specific comments and extent practicable, we are to make this Euphilotes pallescens mattonii. This information as to what, if any, critical finding within 90 days of our receipt of subspecies was again included in our habitat you think we should propose for the petition and publish our notice of Category 2 candidate list for November designation if any of the six subspecies the finding promptly in the Federal 21, 1991 (56 FR 58804), at which time are proposed for listing, and why such Register. we added the remaining nine petitioned habitat meets the requirements of Our standard for substantial scientific subspecies as Category 2 candidate section 4 of the Act. or commercial information within the species. A Category 2 candidate species Please include sufficient information Code of Federal Regulations (CFR) with was a species for which we had with your submission (such as scientific regard to a 90-day petition finding is information indicating that a proposal to journal articles or other publications) to ‘‘that amount of information that would list it as threatened or endangered under allow us to verify any scientific or lead a reasonable person to believe that the Act may be appropriate, but for commercial information you include. the measure proposed in the petition which additional information on Submissions merely stating support may be warranted’’ (50 CFR 424.14(b)). biological vulnerability and threat was for or opposition to the action under If we find that substantial scientific or needed to support the preparation of a consideration without providing commercial information was presented, proposed rule. These nine subspecies supporting information, although noted, we are required to promptly review the included the Carson Valley wood will not be considered in making a status of the species, which is nymph (Cercyonis pegala ssp.), now determination. Section 4(b)(1)(A) of the subsequently summarized in our 12- known as Cercyonis pegala carsonensis. Act directs that determinations as to month finding. The Baking Powder Flat blue butterfly whether any species is an endangered or was added as Euphilotes battoides ssp., Petition History threatened species must be made now known as Euphilotes bernardino ‘‘solely on the basis of the best scientific On January 29, 2010, we received a minuta. The two Railroad Valley and commercial data available.’’ petition dated January 25, 2010, from skippers, the White River Valley You may submit your information WildEarth Guardians, requesting that 10 skipper, and the Mono Basin skipper concerning this status review by one of subspecies of Great Basin butterflies in were added as Hesperia uncas ssp. and the methods listed in the ADDRESSES Nevada and California be listed as are now known as Hesperia uncas section. If you submit information via threatened or endangered and critical fulvapalla, Hesperia uncas reeseorum, http://www.regulations.gov, your entire habitat be designated under the Act. The Hesperia uncas grandiosa, and Hesperia submission—including any personal petition clearly identified itself as such uncas giulianii, respectively. The identifying information—will be posted and included the requisite identification Steptoe Valley crescentspot was added on the Web site. If you submit a information for the petitioner, as as Phyciodes pascoensis ssp. and is now hardcopy that includes personal required by 50 CFR 424.14(a). In a known as Phyciodes cocyta arenacolor. identifying information, you may March 26, 2010, letter to the petitioner, The bleached sandhill skipper was request at the top of your document that WildEarth Guardians, we responded added under a different common name, we withhold this personal identifying that we had reviewed the information Denio sandhill skipper (Polites sabuleti information from public review. presented in the petition and sinemaculata). The Carson Valley However, we cannot guarantee that we determined that issuing an emergency silverspot was added as Speyeria will be able to do so. We will post all regulation temporarily listing the 10 nokomis ssp. and is now known as hardcopy submissions on http:// subspecies as per section 4(b)(7) of the Speyeria nokomis carsonensis. All of www.regulations.gov. Act was not warranted although this these subspecies were maintained as Information and supporting was not requested in the petition. We Category 2 candidates in our November documentation that we received and also stated that while we are required to 15, 1994 list (59 FR 58982). Please see used in preparing this finding is complete a significant number of listing Table 1.

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TABLE 1—PETITIONED GREAT BASIN BUTTERFLIES, WITH THEIR PREVIOUS AND CURRENT COMMON AND SCIENTIFIC NAMES

Previous common name Current common name Previous scientific name Current scientific name

Mattoni’s blue butterfly ...... Mattoni’s blue butterfly ...... Euphilotes (=Shijimiaeoides) rita Euphilotes pallescens mattonii. mattonii. Carson Valley wood nymph ...... Carson Valley wood nymph ...... Cercyonis pegala ssp...... Cercyonis pegala carsonensis. Baking Powder Flat blue butterfly .. Baking Powder Flat blue butterfly Euphilotes battoides ssp...... Euphilotes bernardino minuta. Railroad Valley skipper ...... Railroad Valley skipper ...... Hesperia uncas ssp...... Hesperia uncas fulvapalla. Railroad Valley skipper ...... Railroad Valley skipper ...... Hesperia uncas ssp...... Hesperia uncas reeseorum. Railroad Valley skipper/White White River Valley skipper ...... Hesperia uncas ssp...... Hesperia uncas grandiosa. River Valley skipper. Railroad Valley skipper/Mono Mono Basin skipper ...... Hesperia uncas ssp...... Hesperia uncas giulianii. Basin skipper. Steptoe Valley crescentspot ...... Steptoe Valley crescentspot ...... Phyciodes pascoensis ssp...... Phyciodes cocyta arenacolor. Denio sandhill skipper ...... Bleached sandhill skipper ...... Polites sabuleti sinemaculata ...... Polites sabuleti sinemaculata. Carson Valley silverspot ...... Carson Valley silverspot ...... Speyeria nokomis ssp...... Speyeria nokomis carsonensis.

In the February 28, 1996, Candidate the mere exposure of the species to the 10 subspecies are: Hesperiidae (5), Notice of Review (CNOR) (61 FR 7595), factor to determine whether the species Nymphalidae (3), and Lycaenidae (2). In we adopted a single category of responds to the factor in a way that specific subspecies sections below, we candidate species defined as follows: causes actual impacts to the species. If have included a short summary of ‘‘Those species for which the Service there is exposure to a factor, but no available population and life-history has on file sufficient information on response, or only a positive response, information for each subspecies, as biological vulnerability and threat(s) to that factor is not a threat. If there is provided in the petition, its references, support issuance of a proposed rule to exposure and the species responds and our files. list but issuance of the proposed rule is negatively, the factor may be a threat The petition provides information precluded.’’ In previous CNORs, species and we then attempt to determine how regarding the 10 subspecies’ rankings meeting this definition were known as significant a threat it is. If the threat is according to NatureServe (WildEarth Category 1 candidates for listing. Thus, significant, it may drive or contribute to Guardians 2010, pp. 3–4). The the Service no longer considered the risk of extinction of the species such petitioned butterflies are considered at Category 2 species as candidates, that the species may warrant listing as the subspecies taxonomic level and all including the 10 petitioned butterfly threatened or endangered as those terms are ranked as critically impaired or subspecies, and did not include them in are defined by the Act. This does not impaired at the global, national, or State the 1996 list or any subsequent CNORs. necessarily require empirical proof of a level (WildEarth Guardians 2010, pp. 3– The decision to stop considering threat. The combination of exposure and 4). While the petition states that the Category 2 species as candidates was some corroborating evidence of how the ‘‘definitions of ‘critically impaired’ and designed to reduce confusion about the species is likely impacted could suffice. ‘impaired’ are at least equivalent to status of these species and to clarify that The mere identification of factors that definitions of ‘endangered’ or we no longer regarded these species as could impact a species negatively may ‘threatened’ under the [Act],’’ this is not candidates for listing. not be sufficient to compel a finding an appropriate comparison. According that listing may be warranted. The to its own Web site, NatureServe’s Evaluation of Information for This information shall contain evidence assessment of any species ‘‘does not Finding sufficient to suggest that these factors constitute a recommendation by Section 4 of the Act (16 U.S.C. 1533) may be operative threats that act on the NatureServe for listing [that species]’’ and its implementing regulations at 50 species to the point that the species may under the Act (NatureServe 2010). In CFR 424 set forth the procedures for meet the definition of threatened or addition, NatureServe’s assessment adding a species to, or removing a endangered under the Act. procedures include ‘‘different criteria, species from, the Federal Lists of In making this 90-day finding, we evidence requirements, purposes and Endangered and Threatened Wildlife evaluated whether information taxonomic coverage [from those of] and Plants. A species may be regarding threats to the 10 butterfly government lists of endangered and determined to be an endangered or subspecies as presented in the petition threatened species, and therefore these threatened species due to one or more and other information available in our two types of lists should not be of the five factors described in section files, is substantial, thereby indicating expected to coincide’’ (NatureServe 4(a)(1) of the Act: that the petitioned action may be 2010). We found the information related (a) The present or threatened warranted. Our evaluation of this to the 10 Great Basin butterflies destruction, modification, or information is presented below. provided by NatureServe to be limited in its usefulness for determining that curtailment of its habitat or range; Summary of Common Information on there is substantial information (b) Overutilization for commercial, Species recreational, scientific, or educational indicating that these species may be purposes; The 10 butterfly subspecies included warranted for listing under the Act. (c) Disease or predation; in the petition and evaluated in this Summary of Common Threats (d) The inadequacy of existing finding are invertebrates endemic to the regulatory mechanisms; or Great Basin region of Nevada and The petition identifies several threats (e) Other natural or manmade factors California. All of the petitioned as common to many of the petitioned affecting its continued existence. butterflies are from the phylum butterfly subspecies using general In considering what factors might Arthropoda, class Insecta, order information applicable to most butterfly constitute threats, we must look beyond Lepidoptera. Taxonomic families for the species: Water development (diversions

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and groundwater pumping), livestock would pump 180,800 acre-feet per year yield as ‘‘the amount of usable water grazing, agriculture, pesticides (afy) (223,000,000 cubic-meters per year from a ground-water aquifer that can be (herbicides and insecticides), (m3/year)) of groundwater from economically withdrawn and consumed inadequate regulatory mechanisms, and southern, central, and eastern Nevada to each year for an indefinite period of climate change (WildEarth Guardians the Las Vegas Valley (Deacon et al. time. It cannot exceed the natural 2010, pp. 6–10). In addition, the petition 2007, p. 692). Other communities are recharge to that aquifer and ultimately claims that all of the subspecies may be pursuing rights to an additional 870,487 is limited to maximum amount of biologically vulnerable due to limited afy (1,073,750,000 m3/year) of discharge that can be utilized for distribution and small population size groundwater (Deacon et al. 2007, p. beneficial use.’’ The NSE estimates or numbers of populations (WildEarth 693). In Nevada, this groundwater perennial yield for 256 basins and sub- Guardians 2010, pp. 6, 10–11). The pumping proposal could lower water basins (areas) in Nevada, and may common threats presented in the tables in some valleys from a few feet to ‘‘designate’’ a groundwater basin, petition are often associated with several hundred feet (Schaefer and meaning the basin ‘‘is being depleted or habitats or general areas that could be Harrill 1995, p. 1; Myers 2006, p. 75). is in need of additional administration, suitable for butterfly species, but the Models have predicted groundwater and in the interest of public welfare, petition frequently does not associate declines of about 1 to 1,600 feet (ft) (0.3 [the NSE may] declare preferred uses the threats to actual locations known to to 488 meters (m)) throughout 78 basins (such as municipal, domestic) in such be occupied by the petitioned from Utah to California (Deacon et al. basins.’’ Some of the hydrographic areas subspecies. The threats are generally 2007, p. 692). Pumping is expected to in which the petitioned butterflies occur described in the petition, but with little reduce flow of regional springs 2 to 14 are ‘‘designated’’ by the NSE and or no information on existing or percent in the first 100 years, with permitted groundwater rights approach probable impacts to the individual continued declines over the next 100 or exceed the estimated average annual petitioned subspecies. We have little to years (Deacon et al. 2007, p. 692). recharge. Such commitments of water no information available in our files to Groundwater withdrawal can result in resources beyond perennial yield may identify potential common threats and direct and indirect effects to the water result in detrimental impacts to habitats connect them to existing or probable table and is likely to impact the for some of the petitioned subspecies in impacts to the 10 petitioned subspecies. discharge amount from seeps and the designated basins. When In this section, we summarize these springs (Sanford 2006, p. 400). groundwater extraction exceeds aquifer common threats to the petitioned The petition indicates riparian recharge, it may result in surface water subspecies as presented in the petition. communities and associated springs, level decline, spring drying and Our conclusion for each subspecies as seeps, and small streams comprise a degradation, or the loss of aquatic it relates to each of the five factors is small area of the Great Basin and habitat (Zektser et al. 2005, pp. 396– based on this summary, in addition to Mojave Desert regions, but provide 397). any specific threat information provided habitat for 70 percent of the butterfly Determining whether groundwater in the petition or available in our files. species in these regions (Brussard and development is a threat to springs, Our conclusion regarding whether there Austin 1993 cited in Brussard et al. streams or wetlands or not depends is substantial scientific or commercial 1998, p. 508). upon: (1) The basins in which The petition cites a few instances information available to indicate that withdrawals are occurring or proposed where habitat loss or degradation due to the petitioned action is warranted or not exceed perennial yield or have a water development has occurred at is indicated in specific subspecies hydrologic connection to springs and historical locations of the petitioned sections below. groundwater flow systems; (2) springs, subspecies, or where it is occurring at streams or wetlands are upgradient and Factor A. The Present or Threatened locations currently known to be outside of the zone of influence of the Destruction, Modification, or occupied. However, the petition more carbonate aquifer (i.e., they occur in the Curtailment of its Habitat or Range typically associates water development alluvial aquifer or mountain block Water Development with habitat types or general areas that aquifer instead); or (3) springs, streams may be used by the petitioned or wetlands are too far away from The petition (WildEarth Guardians subspecies. proposed pumping projects to be 2010, p. 6) suggests that the historical Our files include information impacted (Welch et al. 2007, pp. 71–79). range for some of the petitioned regarding groundwater development as Specific information on water butterflies has been reduced due to loss it relates to perennial yield versus development impacts pertaining to a and mismanagement of riparian and committed water resources within some particular petitioned subspecies is aquatic habitats, including springs and hydrographic basins where petitioned included in specific subspecies sections seeps, in northern Nevada (Sada et al. butterflies occur or may occur. This file below as appropriate. 1992, p. 76; Noss et al. 1995, p. 76; information is from the Nevada Division Brussard et al. 1998, pp. 531–532; Sada of Water Resources’ (NDWR) database Agriculture et al. 2001, pp. 11–16; Sada 2008, pp. (http://water.nv.gov/), which we The petition provides a general 49–50), and California (Dahl 1990 cited accessed and reviewed on January 12, discussion of butterfly use of by Noss et al. 1995, p. 74). 2010, saving hard copies of groundwater agricultural areas. It claims that The petition claims that water information for various basins in agricultural practices are eliminating development, such as the large Nevada. Where we discuss perennial suitable habitat, resulting in losses of groundwater pumping project proposed yield and committed water resources butterfly species. Fleishman et al. (1999, by the Southern Nevada Water and effects of groundwater development pp. 214–215) is referenced as stating Authority (SNWA) in Nevada and within this finding, we are referring to that artificial riparian areas such as western Utah, threatens to lower information we have reviewed from the irrigated croplands support fewer aquifers and will likely reduce or NDWR database. butterfly species than native habitats; eliminate springs and wetlands and The Nevada State Engineer (NSE) that most butterfly species found in their associated habitats (Deacon et al. approves and permits groundwater agricultural sites are widespread 2007, p. 689). Proposals by SNWA rights in Nevada and defines perennial generalists often found in disturbed

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sites; that less common species, as well impacts to a particular petitioned Climate Change as those restricted in native larval host subspecies is included in specific The petition claims that climate plants, are less likely to or do not occur subspecies sections below as change in the Great Basin is a threat to in agricultural sites, and though appropriate. the petitioned subspecies. The average agriculture can provide habitat for some Livestock Grazing temperature in the Great Basin has butterfly species, these modified increased 0.6 to 1.1 degrees Fahrenheit habitats cannot replace the natural The petition states that livestock (0.3 to 0.6 degrees Celsius) during the undisturbed riparian ecosystems. last 100 years (Chambers 2008a, p. 29) The petition claims that agriculture is grazing in general impacts riparian and is expected to increase by 3.6 to 9 a threat to some of the petitioned areas, wetlands, seeps, and springs by degrees Fahrenheit (2 to 5 degrees subspecies, but it does not present removing native vegetation, and by Celsius) over the next century (Cubashi specific information to support the reducing cover, biomass, and the et al. 2001 cited by Chambers 2008a, p. claim that this potential threat is productivity of herbaceous and woody 29). impacting the petitioned subspecies, species. It also claims that trampling by livestock destroys vegetation and The petition indicates that climate their host plants, or nectar sources, or is change is expected to affect the timing likely to in the future. The petition does compacts the soil, increasing erosion and flow of streams, springs, and seeps not present information regarding which and runoff, and that grazing spreads in the Great Basin (Chambers 2008b, p. types of agricultural practices may be nonnative plant species (Fleishner 1994, 20) which support the moist meadows threats, nor is information presented pp. 631–635; Belsky et al. 1999, pp. 8– upon which some petitioned butterflies concerning past, present, or projected 11; Sada et al. 2001, p. 15). depend (WildEarth Guardians 2010, p. acreage or intensity of these operations Inappropriate livestock grazing can also 9). Earlier spring snowmelt appears to in or near occupied or suitable trample butterfly larvae and host or be affecting the date of blooming for locations. The petition also does not nectar plants, degrade habitats, and some plants in the Great Basin report loss of populations or reduction assist in the spread of nonnative plant (Chambers 2008a, p. 29). Potential in numbers of these butterfly subspecies species that can dominate or replace related directly to agricultural practices. changes in the bloom date of meadow native plant communities and thereby plants used by butterflies due to climate We have little to no information in our impact larval host and adult nectar files related to agricultural practices change could affect their use (WildEarth species (WildEarth Guardians 2010, pp. Guardians 2010, p. 9). The petition impacting the petitioned subspecies. 22–23). The petition indicates that light Specific information on agriculture indicates that drought in the Great Basin or moderate grazing can assist in could negatively affect riparian habitats, pertaining to a particular subspecies is maintaining butterfly habitats included in specific subspecies sections moist meadows, and similar habitats, (WildEarth Guardians 2010, p. 23), but below as appropriate. especially those already stressed by heavy grazing is considered other factors (Major 1963 cited by West Pesticide Use incompatible with the conservation of 1983, p. 344). As climate changes, The petition claims that pesticide use some butterflies (Sanford 2006, p. 401; droughts may become more common in is a threat to the petitioned butterfly Selby 2007, pp. 3, 29, 33, 35). the Great Basin (Chambers et al. 2008, subspecies (WildEarth Guardians 2010, The petition indicates that the threat p. 3) and American Southwest (Seager et p. 7). Use of pesticides (including drift) from livestock grazing is occurring over al. 2007, pp. 1181–1183), modifying can impact butterfly habitat by killing widespread general habitat areas where future precipitation (WildEarth butterfly nectaring and host plant the petitioned subspecies could be Guardians 2010, p. 8). Increased carbon species (Selby 2007, pp. 3, 30). This occurring, with a few site-specific dioxide (CO2) may favor invasion of threat can be serious for those species instances. The petition provides little to annual grasses such as the nonnative that specialize in one host plant species no specific supporting information to Bromus tectorum (cheat grass) (Smith et al. 2000, pp. 79, 81). Increased (WildEarth Guardians 2010, p. 7). Use of indicate this potential threat may be temperatures and CO levels have insecticides on pastureland or croplands impacting the petitioned subspecies or 2 adjacent to butterfly habitat can be a various effects on plant growth and is likely to in the future. The petition direct threat to butterfly survival (Selby chemistry, which may affect insect provides little to no information related 2007, p. 30). abundance and persistence (Stiling to the level of grazing utilization that The petition does not present any 2003, pp. 486–488). Increasing specific supporting information that this has or may be occurring at occupied or temperatures can also affect insect potential threat may be impacting the suitable locations, or that it may development and reproduction (Sehnal subspecies or is likely to in the future. increase in intensity in the future. The et al. 2003, pp. 1117–1118). The petition does not present specific petition does not present information According to Loarie et al. (2009, p. information concerning past, present, or that indicates the degree, if any, that 1052), as referenced in the petition, projected intensity of pesticide use in or invasive plants are spreading in the species and ecosystems will need to near occupied or suitable locations. The petitioned subspecies’ occupied habitats shift northward an average of 0.3 mile petition does not present specific as a result of grazing activities. The (mi) (0.42 kilometer (km)) per year to information as to whether this potential petition does not report loss of avoid the effects of increasing threat has, is, or is likely to affect the populations or reduction in numbers of temperatures associated with climate subspecies, their host plants, or nectar these petitioned subspecies due to change. Loarie et al. (2009, p. 1053) also sources. The petition also does not livestock grazing. We have little to no states that distances may be greater for report loss of populations or reductions information available in our files related species in deserts and xeric (dry habitat) in numbers of these subspecies to to livestock grazing impacting the shrublands, where climate change is pesticide use. We have no information petitioned subspecies. Specific predicted to have greater effect than in in our files related to pesticide use information related to livestock grazing some other ecosystems. The petition impacting any of the petitioned and impacts to a particular subspecies is states that it is unlikely that small, subspecies or their habitats. Specific included in specific subspecies sections isolated populations of butterflies in the information regarding pesticide use and below as appropriate. Great Basin, dependent on reduced

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habitats, will be able to shift to other to the loss of butterfly populations or a managed land was updated under habitats in the face of climate change significant reduction in numbers of BLM’s 6840 Manual, ‘‘Special Status (WildEarth Guardians 2010, p. 9). Many individuals for any of the petitioned Species Management’’ (BLM 2008a). species in the Great Basin have butterflies. This manual provides agency policy and specialized habitat requirements and We do not have information in our guidance for the conservation of special limited mobility, which influence their files to suggest overutilization as a status plants and animals and the ability to adapt to anthropogenic threat to any of the petitioned ecosystems on which they depend, but environmental change (Fleishman 2008, subspecies. This discussion provides it is not a regulatory document. The p. 61). Species and habitats already the basis for our determinations in objectives for BLM special status species stressed by other factors may be less specific subspecies sections below. are ‘‘to conserve and/or recover ESA- able to cope with climate change Factor C. Disease or Predation listed species and the ecosystems on (WildEarth Guardians 2010, p. 10). The which they depend so that ESA petition did not provide climate change The petition indicates that disease is protections are no longer needed for or drought information specific to not known to be a threat to any of the these species and to initiate proactive Nevada or California, or the general petitioned butterflies (WildEarth conservation measures that reduce or areas known to be occupied by any of Guardians 2010, p. 8). A general eliminate threats to Bureau sensitive the 10 petitioned butterflies, or on the statement is made in the petition that species to minimize the likelihood of specific detrimental effects of climate larvae and adult butterflies are subject and need for listing of these species change or drought to each subspecies. to predation from a variety of wildlife; under the ESA’’ (BLM 2008a, p. 3). Based on information in our files, however, it is not known whether Inclusion as a BLM sensitive species recent projections of climate change in predation is a threat to any of the does provide consideration of the Great Basin over the next century petitioned subspecies (WildEarth conservation measures for the include: Increased temperatures, with Guardians 2010, p. 8). subspecies under the National an increased frequency of extremely hot We do not have information in our Environmental Policy Act. days in summer; more variable weather files suggesting disease or predation as Based on information presented in the patterns and more severe storms; more a threat to the petitioned butterfly petition and available in our files, winter precipitation in the form of rain, subspecies. This discussion provides Nevada does not have the ability to with potentially little change or the basis for our determinations in protect invertebrates under its current decreases in summer precipitation; and specific subspecies sections below. State law. The Nevada Department of earlier, more rapid snowmelt (United Factor D. The Inadequacy of Existing Wildlife is limited in its ability to States Environmental Protection Agency Regulatory Mechanisms protect insects under its current 1998, pp. 1–4; Chambers and Pellant regulations (Nevada Revised Statutes 2008, pp. 29–33). The petition considers the inadequacy (NRS)). Nevada State law protects It is difficult to predict local climate of existing regulatory mechanisms to be species that the Wildlife Commission change impacts, due to substantial a threat for all 10 petitioned subspecies determines to be imperiled (NRS uncertainty in trends of hydrological (WildEarth Guardians 2010, p. 40). The 503.585 cited in WildEarth Guardians variables, limitations in spatial and petition claims that no Federal or State 2010, p. 8). While some invertebrates temporal coverage of monitoring programs exist to manage sensitive such as mollusks and crustaceans may networks, and differences in the spatial invertebrate species in Nevada or the be protected because they can be scales of global climate models and Great Basin, but it does not address classified under wildlife (NRS 501.110 hydrological models (Bates et al. 2008, existing regulatory mechanisms in cited in WildEarth Guardians 2010, p. p. 3). Thus, while the information in the California (WildEarth Guardians 2010, 8), butterflies are not covered under this petition and our files indicates that p. 8). Information provided in the statute (WildEarth Guardians 2010, p. climate change has the potential to petition’s referenced material suggests 8). No butterfly species are currently affect vegetation and habitats used by that the general habitats that could be protected by State law in Nevada butterflies in the Great Basin in the long used by the petitioned subspecies may (Nevada Administrative Code 503.020– term, there is much uncertainty occur on lands under various 503.080). The California Department of regarding which habitat attributes could combinations of private, State, tribal, Fish and Game is unable to protect be affected, and the timing, magnitude, and Federal management. The petition insects under its current regulations (P. and rate of their change as it relates to presents little to no specific information Bontadelli, in litt., 1990). the 10 petitioned butterflies. Specific to support the claim that potential The petition presents little to no information pertaining to climate threats are associated with inadequate specific information supporting the change and a particular petitioned existing regulatory mechanisms, nor claim that threats are associated with subspecies is included in specific does the petition connect inadequate inadequate existing regulatory subspecies sections below as existing regulatory mechanisms by mechanisms. Additionally, the petition appropriate. Bureau of Land Management (BLM) or provides little to no specific supporting other Federal agencies to impacts to or information to associate losses of Factor B. Overutilization for losses of populations or declining butterfly populations or declining Commercial, Recreational, Scientific, or population trends of the petitioned population trends to inadequate existing Educational Purposes subspecies. regulatory mechanisms by State wildlife The petition states that individuals of All of the petitioned butterfly agencies or other State agencies. all of the petitioned butterfly subspecies subspecies, with the exception of the We have little to no information have been collected by scientists and Carson Valley wood nymph and available in our files to suggest that amateur collectors over the years, but it Railroad Valley skipper (Hesperia uncas inadequacy of existing regulatory is not known whether collection is a reeseorum), are included under the mechanisms may be threatening the threat to any of the subspecies as a referenced 2007 BLM list of sensitive petitioned subspecies. For most of these whole (WildEarth Guardians 2010, p. 8). species (BLM 2007a, pp. J6–J7, J37). In subspecies, we have no information in The petition does not provide 2008, BLM policy and guidance for our files related to this potential threat; information that overutilization has led species of concern occurring on BLM- however, for a few there is some

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information in our files to suggest a chance events, other threats, the known colony occurs at Scossa Ranch, potential threat due to the inadequacy of potential for such chance events to Douglas County, Nevada (Austin et al. existing regulatory mechanisms. occur in occupied habitats, and 2000, p. 2). The subspecies has been Specific information pertaining to the connecting these threats to a restricted documented from the Carson Range inadequacy of existing regulatory geographic range of a subspecies, we do North, Washoe County; Snow Valley, mechanisms and a particular subspecies not consider chance events, restricted Carson City County; and Mineral Valley, is included in specific subspecies geographic range, or rarity by Pine Nut Creek, and Sugar Loaf, Douglas sections below as appropriate. themselves to be threats to a subspecies. County (NNHP 2006, pp. 21–22, 36–37). In addition, butterfly populations are Factor E. Other Natural or Manmade The petition indicates there are 13 highly dynamic and from year to year, Factors Affecting its Continued Nevada occurrences in the NNHP butterfly distributions can be highly Existence (NNHP 2009, p. 8) database, but location variable (Weiss et al. 1997, p. 2), and information is not indicated. However, The petition states that all of the desert species seem prone to dramatic review of the complete Nevada petitioned butterflies may be susceptible fluctuations in number (Scott 1986, p. database, which we have in our files, to the effects of biological vulnerability, 109). includes additional locations at Davis which may increase the likelihood of We have little to no additional Creek Park, Kingsbury Grade, extinction (WildEarth Guardians 2010, information related to the overall Thompson Canyon, Dangberg Reservoir pp. 6, 10). Characteristic butterfly abundance, distribution, number and near Gardnerville, Daggett Pass, Veceey population fluctuations and short size of populations, or population Canyon area, Haines Canyon, Thomas generation times, combined with small trends for any of the 10 subspecies in Creek, and Kings Canyon (NNHPD populations, can influence genetic our files. We do not have additional 2008). The petition notes that this diversity and long-term persistence information in our files related to subspecies may currently occur at 37 (Britten et al. 2003, pp. 229, 233). The biological vulnerability as a threat to sites (M. Sanford, pers. comm., cited in petition further asserts that many of the any of the petitioned butterfly WildEarth Guardians 2010, p. 18), but butterflies included in the petition subspecies. Specific information location information was not provided. occur as single populations or a few pertaining to biological vulnerability The petition states that the subspecies is disparate ones, and that the number of and a particular subspecies is included reduced from historical abundance (M. populations may be more important in specific subspecies sections below as Sanford pers. comm., cited in WildEarth than population size when assessing the appropriate. Guardians 2010, p. 17). status of a butterfly (Sanford 2006, p. 401). Some of the petitioned butterflies Species for Which Substantial Factor A: Information Was Not Presented occur in isolated populations in patchy Information Provided in the Petition environments (WildEarth Guardians In this section, the butterfly 2010, p. 11), and the lack of dispersal subspecies are listed in alphabetical The petition asserts that water corridors or resistance to barriers to order by their common name. development; land development; dispersal may inhibit gene flow between agriculture; livestock grazing; nonnative Carson Valley silverspot (Speyeria populations and increase the likelihood plant species invasion, such as by nokomis carsonensis) of extinction (Wilcox and Murphy 1985, Lepidium latifolium (tall whitetop); and pp. 882–883). Overall, the petition We accept the characterization of the pesticide use may impact this provides little information related to the Carson Valley silverspot as a valid subspecies (WildEarth Guardians 2010, distribution, numbers of populations, subspecies based on its description by p. 19). The petition indicates that these size of populations, or population Austin (1998c, pp. 573–574). The types of activities can eliminate, trends for the 10 petitioned butterfly Carson Valley silverspot’s larval host degrade, and fragment butterfly habitat subspecies. However, the petition and plant is the violet, Viola nephrophylla (WildEarth Guardians 2010, p. 19). The its references indicate that most of the (Austin et al. 2000, p. 2; Austin and petition adds that heavy livestock 10 subspecies are known to have more Leary 2008, p. 97), and the primary grazing on public and private land in than one population. The petition nectar sources are Cirsium sp. (Austin et the Sierra Nevada, Pine Nut Mountains, provides little to no specific information al. 2000, p. 2). A single brood flies and Sweetwater Mountains has that indicates that biological during mid-July to mid-October (Austin degraded habitat for the Carson Valley vulnerability may be a threat to any of 1998c, p. 574; Austin et al. 2000, p. 2). silverspot (WildEarth Guardians 2010, the petitioned subspecies. The Carson Valley silverspot occurs p. 20). The annual grazing removes General biological information in our in wet meadows along the east side of vegetation from seep- and spring-fed files indicates that the combination of the Carson Range from southern Washoe meadows, and water diversions for few populations, small ranges, and County, Nevada, south to northern grazing have dried up meadows, restricted habitats can make a species Alpine County, California. It occurs eliminating silverspot habitat susceptible to extinction or extirpation along the Carson River drainage in (WildEarth Guardians 2010, p. 20). The from portions of its range due to random Douglas County, Nevada, and Alpine petition mentions that climate change events such as fire, drought, disease, or County, California. It also occurs in the may result in the drying out of moist other occurrences (Shaffer 1987, pp. 71– Pine Nut Mountains of Douglas County, habitats in the Carson Valley (WildEarth 74; Meffe and Carroll 1994, pp. 190– Nevada, and the Sweetwater Mountains Guardians 2010, p. 20). 197). Limited distribution and small (Austin 1998c, p. 574; Austin et al. According to the petition, most of the population numbers or sizes are 2000, p. 2; The Nature Conservancy Carson Valley silverspot populations considered in determining whether the 2009, p. 1), Pine Grove Hills, and Smith occur in habitats associated with the petition provides substantial Valley of Lyon County, Nevada (Austin Carson River and its tributaries in information regarding a natural or and Leary 2008, p. 97). Populations ‘‘Carson Valley’’ (WildEarth Guardians anthropogenic threat, or a combination have been found along the Walker River 2010, p. 18). The petition indicates that of threats, that may be affecting a drainage in Mono County, California the NNHP has ranked the Carson River particular subspecies. However, in the (Austin et al. 2000, p. 2; The Nature among the 26 highest priority wetland absence of information identifying Conservancy 2009, p. 1). The largest areas in the State (NNHP 2007, p. 8).

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Many other associated areas, including development, agriculture, livestock Evaluation of Information Provided in tributaries, riparian areas, wet meadows, grazing, pesticide use, and climate the Petition and Our Files marshes, ponds, and ephemeral pools in change as potential threats. The petition does not provide Carson Valley, Nevada, are also listed While the petition reports losses of information that overutilization, (NNHP 2007, pp. 12–14). According to Carson Valley silverspot populations disease, or predation has negatively NNHP (2007, p. 36) and The Nature from their historical abundance (M. impacted the subspecies. We have no Conservancy (2008, p. 31), numerous Sanford, pers. comm., cited in information in our files related to areas associated with these sites and WildEarth Guardians 2010, p. 17), overutilization, disease, or predation for others along the Middle Carson River which could suggest a negative response this subspecies. According to Austin et have been degraded or converted to to these potential threats, details al. (2000, p. 2), Scossa Ranch remains other lands uses. Moderate to high the largest known colony for this stressors impacting these areas in regarding these losses and the reason(s) for them are not provided. The petition subspecies. As indicated earlier, there Carson Valley include water are also multiple populations of this development and diversions, does not present specific information related to population numbers, size, or subspecies occurring elsewhere in groundwater pumping, Nevada and California. We do not know hydrogeomorphic modification, land trends for the Carson Valley silverspot if or to what extent these other development, agriculture, livestock over any period of time. The petition populations have been impacted by grazing, recreation, fire suppression, does not provide additional information collection efforts. The available wetland leveling, and nonnative species related to the reported population information does not indicate collection invasions. The petition implies these declines, regarding their locations, efforts are negatively impacting the activities are negatively impacting the number of populations, or magnitude of Carson Valley silverspot. Also see the Carson Valley silverspot. them. We do not have this information in our files. As a result, it is not possible ‘‘Summary of Common Threats’’ section Evaluation of Information Provided in to put these reported declines into for information pertaining to the Petition and Our Files context to determine whether overutilization, disease, and predation The petition does not provide populations of the Carson Valley as potential threats. Based on our evaluation of the specific, supporting information to silverspot may be experiencing declines information provided in the petition indicate that the Carson Valley or not or their possible severity. These and in our files, we have determined silverspot may be impacted from water declines might be attributed to the that the petition does not present development, land development, normal natural fluctuations of butterfly substantial information to indicate that agriculture, livestock grazing, nonnative populations. Butterfly populations are listing the Carson Valley silverspot may plant species invasion, pesticide use, or highly dynamic and numbers and be warranted due to Factor B climate change at occupied locations in distribution can be highly variable year (overutilization for commercial, Nevada or California. The petition does to year (Weiss et al. 1997, p. 2). not provide additional information or recreational, scientific, or educational discussion regarding possible impacts to Based on our evaluation of the purposes) or Factor C (disease or the Carson Valley silverspot from information provided in the petition predation). recreation, fire suppression, and and in our files, we have determined Factor D: wetland leveling. The petition does not that the petition does not present provide specific, supporting information substantial information to indicate that Information Provided in the Petition regarding past, present, or future listing the Carson Valley silverspot may The petition asserts that inadequate conditions of these threats or their be warranted due to the present or existing regulatory mechanisms are a scope, immediacy, or intensity at threatened destruction, modification, or threat to this subspecies (WildEarth occupied or suitable habitats in Nevada curtailment of its habitat or range. Guardians 2010, pp. 8, 40). This or California. The petition emphasizes Factors B and C: butterfly is listed as a BLM sensitive habitat impacts along the Middle Carson species (BLM 2007a, p. J6). This River in Nevada; however, there are a Information Provided in the Petition designation can offer it some number of populations located in conservation consideration. The petition several counties in both Nevada and The petition states that it is unknown also indicates that some populations of California. Little to no information whether overutilization, disease, or the Carson Valley silverspot, as well as regarding habitat impacts to these predation are threats to this subspecies potential habitat, occur on properties additional populations is indicated. We (WildEarth Guardians 2010, p. 8). Based covered by conservation easements have information in our files that on information referenced in the (WildEarth Guardians 2010, p. 19). indicate habitat disturbances such as petition, numerous individuals (432 These easements may be protected from water table changes may adversely males, 224 females) of this subspecies land development, but they are not impact larval food availability (Austin et have been collected by several collectors protected from other activities such as al. 2000, p. 2), but details are not between 1964 and 1989 at Scossa groundwater pumping, invasive species, provided. Grazing has been associated Ranch, Douglas County, Nevada (Austin livestock grazing, and agricultural use with population declines (M. Sanford, 1998c, p. 574). Based on these total (WildEarth Guardians 2010, p. 19). pers. comm., cited in WildEarth numbers over the 25-year time period, Guardians 2010, p. 19), but details are an average of 17 males and 9 females Evaluation of Information in the Petition not provided. We do not have any were collected per year. Ranges of and Our Files further specific, supporting information individuals collected during a single The petition does not provide specific in our files regarding potential threats or day in a particular year were 1 to 39 for information to support the assertion that resulting negative impacts to Carson males and 1 to 54 for females. In some existing regulatory mechanisms are Valley silverspot populations in Nevada years, multiple collections occurred, inadequate to protect the subspecies or California. Also see the ‘‘Summary of and in some years collections occurred from potential threats because it does Common Threats’’ section for on consecutive days (Austin 1998c, p. not provide substantial information to information pertaining to water 574). support their assertion that threats are

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occurring under the other factors. The manmade factors affecting the specifically to this subspecies include petition does not connect inadequate subspecies’ continued existence. land development, overgrazing, and existing regulatory mechanisms to lowering of the water table (NatureServe Carson Valley Wood Nymph (Cercyonis losses of Carson Valley silverspot 2009c, p. 2). pegala carsonensis) populations or declining population The petition indicates that the NNHP trends. We do not have information in We accept the characterization of the (2007, pp. 8, 12–14) has ranked the our files related to the inadequacy of Carson Valley wood nymph as a valid Carson River in Nevada among the 26 existing regulatory mechanisms for this subspecies, based on its description by highest priority wetland areas in the subspecies. Also see the ‘‘Summary of Austin (1992, pp. 10–11). The larval State, and many associated areas— Common Threats’’ section for host plant is a grass or sedge species including tributaries, riparian areas, wet information pertaining to the (Austin et al. 2000, p. 1). Adults nectar meadows, marshes, ponds, and inadequacy of regulatory mechanisms as on a variety of white and yellow flowers ephemeral pools in Carson Valley, a potential threat. from the families Apiaceae (carrot) and Nevada—are also included. According Based on our evaluation of the the Asteraceae (sunflower) (Austin to NNHP (2007, p. 36) and The Nature information provided in the petition 1992, p. 11). The single brood flies from Conservancy (2008, p. 31), numerous and in our files, we have determined early July to early September (Austin areas associated with these habitats and that the petition does not present 1992, p. 11). others along the Middle Carson River substantial information to indicate that The Carson Valley wood nymph have been degraded or converted to listing the Carson Valley silverspot may occurs in marshes of the western Great other land uses, and moderate to high be warranted due to the inadequacy of Basin along the base of the Carson stressors impacting these areas include existing regulatory mechanisms. Range, especially in Carson Valley from water development and diversions, Factor E: Carson City, Nevada, south to east- groundwater pumping, central Alpine County, California, and hydrogeomorphic modification, land Information Provided in the Petition the Gardnerville area of Douglas County, development, agriculture, livestock The petition indicates that this Nevada, with a few northern specimens grazing, recreation, fire suppression, subspecies may be vulnerable to from the Reno area, Washoe County, wetland leveling, and nonnative species reduced population numbers (WildEarth Nevada (Austin 1992, p. 11). Austin et invasion. Guardians 2010, p. 40) due to the al. (2000, p. 1) mention unidentified Evaluation of Information in the Petition observed subspecies’ reduction in localities in Lyon County, Nevada. The and Our Files numbers from historical abundance (M. petition indicates there are 14 Nevada Sanford pers. comm., cited in WildEarth occurrences recorded in the NNHP The petition does not provide Guardians 2010, p. 17). database, but occurrence locations are specific, supporting information to not identified (NNHP 2009, p. 6). indicate the Carson Valley wood nymph Evaluation of Information in the Petition However, review of the complete may be impacted from water and Our Files Nevada database, which we have in our development, land development, The petition did not present, nor do files, shows additional locations near agriculture, livestock grazing, invasive we have, specific information in our Minden, Daggett Pass, Centerville, plants, or pesticide use at occupied files related to population numbers, Genoa, and along the Carson River, with locations in Nevada or California. The size, or trends for the Carson Valley Cradlebaugh Bridge being a named petition does not provide additional silverspot. The petition does not location (NNHPD 2008). The largest information or discussion regarding provide additional information related colony occurs at Scossa Ranch, Douglas possible impacts to the Carson Valley to the reported population declines, County (Austin et al. 2000, p. 1). wood nymph from recreation, fire regarding the location, number of According to the petition, populations suppression, and wetland leveling. The populations, magnitude of declines, or appear to be declining between 10 to 30 petition does not provide specific, reasons for them. The petition does not percent in the short term with possible supporting information regarding past, provide information on chance events or extirpation of populations in Washoe present, or future conditions of these other threats to the subspecies and County (NatureServe 2009c, p. 2). threats or their scope, immediacy, or connect them to small population Surveys conducted between 2001 and intensity at occupied or suitable habitats numbers or size, or the potential for 2006 showed that some populations of in Nevada or California. The petition such threats to occur in occupied the Carson Valley wood nymph have emphasizes habitat impacts along the habitats in the future. Since this been extirpated (M. Sanford, pers. Middle Carson River in Nevada; subspecies is distributed over a number comm., cited in WildEarth Guardians however, there are additional Carson of populations in two States, its 2010, p. 22). Valley wood nymph populations extinction vulnerability due to Factor A: located in several counties in both stochastic events may be reduced. In the Nevada and California. No information absence of specific information and Information Provided in the Petition is included to indicate habitat impacts connection, we do not consider small The petition asserts in general that to these additional populations. We population numbers alone to be a threat water development; land development; have information in our files (Austin et to this subspecies. Also see the agriculture; livestock grazing; invasion al. 2000, p. 1) indicating, in general, that ‘‘Summary of Common Threats’’ section by nonnative plant species, such as land development, overgrazing, and for information pertaining to small Lepidium latifolium; and pesticide use lowering of the water table could reduce population size as a potential threat. may adversely affect Carson Valley or destroy habitat of the Carson Valley Based on evaluation of the wood nymph habitat (WildEarth wood nymph, but further details are not information provided in the petition Guardians 2010, pp. 22–23, 40). The provided. We do not have any further and our files, we have determined that petition indicates that these types of specific, supporting information in our the petition does not present substantial actions can eliminate, degrade, and files regarding other potential impacts information to indicate that listing the fragment butterfly habitat (WildEarth or resulting adverse impacts to Carson Carson Valley silverspot may be Guardians 2010, p. 23). Threats Valley wood nymph populations in warranted due to other natural or mentioned by other sources pertaining Nevada or California. Also see the

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‘‘Summary of Common Threats’’ section males and 17 females were collected per 2010, p. 22); however, upon review, it for information pertaining to water year. Ranges of individuals collected is not included in the referenced development, agriculture, livestock during a single day in a particular year document (BLM 2007a). grazing, and pesticide use as potential were 1 to 108 for males and 1 to 80 for Evaluation of Information in the Petition threats. females. In some years, multiple and Our Files While the petition reports a loss of collections occurred, and in some years Carson Valley wood nymph populations collections occurred on consecutive The petition does not provide specific with some possible extirpations (M. days (Austin 1992, p. 11). information to support the assertion that Sanford, pers. comm., cited in existing regulatory mechanisms are WildEarth Guardians 2010, p. 22), Evaluation of Information in the Petition inadequate to protect the subspecies which could suggest a negative response and Our Files from potential threats because it does to these potential threats, details The petition does not provide not provide substantial information to regarding these losses and the reasons information that overutilization, support their assertion that threats are for them are not provided. The petition disease, or predation has negatively occurring under the other factors. The does not present specific information impacted the subspecies. We do not petition does not connect inadequate related to population numbers, size, or have information in our files related to existing regulatory mechanisms to trends for the Carson Valley wood overutilization, disease, or predation for losses of Carson Valley wood nymph nymph over any period of time, this subspecies. According to Austin et populations or declining population including the 2001 to 2006 period. The al. (2000, p. 1), Scossa Ranch remains trends. We do not have information in petition does not provide additional the largest known colony for this our files related to the inadequacy of information related to the reported subspecies. As indicated earlier, there existing regulatory mechanisms for this population declines, regarding their are also multiple populations of this subspecies. Also see the ‘‘Summary of locations, number of populations, or the subspecies occurring elsewhere in Common Threats’’ section for magnitude of them. The context for the Nevada and California. We do not know information pertaining to the reported 10 to 30 percent decline if or to what extent these other inadequacy of regulatory mechanisms as between 2001 and 2006 is not clear as populations have been impacted by a potential threat. we do not know how many populations collection efforts. The available Based on our evaluation of the this range should apply or whether it is information does not indicate that information provided in the petition over the entire 5-year period or a collection efforts are negatively and in our files, we have determined portion of it. The identification of the impacting the Carson Valley wood that the petition does not present possibly extirpated populations, their nymph. Also see the ‘‘Summary of substantial information to indicate that locations in Nevada or California, or the Common Threats’’ section for listing the Carson Valley wood nymph number of them are not provided. We information pertaining to may be warranted due to the inadequacy do not have this information in our files. overutilization, disease, and predation of existing regulatory mechanisms. As a result, it is not possible to put these as potential threats. Factor E: reported declines or extirpations into Based on our evaluation of the Information Provided in the Petition context to determine whether information provided in the petition The petition indicates that this populations of the Carson Valley wood and our files, we have determined that subspecies may be vulnerable to small nymph may be experiencing declines or the petition does not present substantial populations (WildEarth Guardians 2010, not or their possible severity. These information to indicate that listing of pp. 21, 40) due to the possible decline declines might be attributed to the the Carson Valley wood nymph may be and extirpations of Carson Valley wood normal natural fluctuations of butterfly warranted due to Factor B nymph populations (M. Sanford, pers. populations. Butterfly populations are (overutilization for commercial, comm., cited in WildEarth Guardians highly dynamic and numbers and recreational, scientific, or educational 2010, p. 22). distribution can be highly variable year purposes) or Factor C (disease or to year (Weiss et al. 1997, p. 2). predation). Evaluation of Information in the Petition Based on our evaluation of the and Our Files information provided in the petition Factor D: The petition does not present and in our files, we have determined Information Provided in the Petition that the petition does not present additional information about the substantial information to indicate that The petition asserts that existing surveys conducted between 2001 and listing the Carson Valley wood nymph regulatory mechanisms are inadequate 2006, such as the locations, numbers, or may be warranted due to the present or to protect this subspecies (WildEarth causes of these presumed extirpations. threatened destruction, modification, or Guardians 2010, pp. 8, 40). The petition We do not have information in our files curtailment of its habitat or range. also indicates that most of the known or related to population numbers, sizes, or Factors B and C: potential populations of the Carson trends. The petition does not provide Valley wood nymph do not occur on information on chance events or other Information Provided in the Petition properties covered by conservation threats to the subspecies, nor does it The petition states that it is unknown easements (WildEarth Guardians 2010, connect these factors to small if overutilization, disease, or predation p. 23). While land under a conservation population numbers or size, or the are threats to this subspecies. Austin easement may be protected from land potential for such chance events to (1992, p. 11) reports numerous development, the area may not occur in occupied habitats in the future. individuals (475 males, 428 females) of necessarily be protected from other In the absence of this information and this subspecies were collected by activities such as groundwater pumping, connection, we do not consider small several individuals between 1964 and invasive species, livestock grazing, and population numbers alone to be a threat 1989 at Scossa Ranch, Douglas County, agricultural use (WildEarth Guardians to this subspecies. Since the information Nevada, as referenced in the petition. 2010, p. 22). The petition states that the indicates this subspecies is distributed Based on these total numbers over the Carson Valley wood nymph is a BLM over more than one population in two 25-year time period, an average of 19 sensitive species (WildEarth Guardians States, its vulnerability to extinction

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due to stochastic events may be Evaluation of Information Provided in disease, or predation has negatively reduced. Also see the ‘‘Summary of the Petition and in Our Files impacted the subspecies. We have no Common Threats’’ section for The petition provides no specific information in our files related to information pertaining to small supporting information to indicate that overutilization, disease, or predation for population size as a potential theat. Mattoni’s blue butterfly is or may this subspecies. Also see the ‘‘Summary of Common Threats’’ section for Based on our evaluation of the become impacted from land use, information pertaining to information provided in the petition livestock grazing or trampling, or overutilization, disease, and predation and our files, we have determined that dispersal problems at any of its occupied sites in Elko County. The as potential threats. the petition does not present substantial Based on our evaluation of the information to indicate that listing the petition does not provide specific supporting information how climate information provided in the petition Carson Valley wood nymph may be and in our files, we have determined warranted due to other natural or change is or may impact this subspecies or its habitat. The petition does not that the petition does not present manmade factors affecting the substantial information to indicate that subspecies’ continued existence. provide supporting information regarding past, present, or future listing the Mattoni’s blue butterfly may Mattoni’s Blue Butterfly (Euphilotes conditions of these threats or their be warranted due to Factor B pallescens mattonii) scope, immediacy, or intensity at (overutilization for commercial, occupied or suitable habitats. The recreational, scientific, or educational We accept the characterization of petition does not report loss of purposes) or Factor C (disease, or Mattoni’s blue butterfly as a valid populations or reduction in numbers of predation). subspecies based on its initial this butterfly subspecies which could Factor D: description by Shields (1975, p. 20) and suggest a negative response to threats Information Provided in the Petition its subsequent reclassification as such as those claimed. Although we indicated by Austin (1998a, p. 633). have a letter from a contractor The petition asserts that inadequate This subspecies’ host plant, Eriogonum indicating that any habitat disturbance existing regulatory mechanisms are a microthecum var. laxiflorum (slender could theoretically adversely affect this threat to the subspecies (WildEarth buckwheat), flowers between June and subspecies (Austin et al. 2000, p. 3), we Guardians 2010, pp. 8, 40). Mattoni’s October (Shields 1975, pp. 20–21). do not have specific information in our blue butterfly is listed as a sensitive Adults fly during July (Shields 1975, files to support the assertion that land species by BLM (BLM 2007a, p. J–7) p. 20; Austin and Leary 2008, p. 76). use, livestock grazing or trampling, or which may offer some conservation Female Euphilotes lay their eggs on climate change is impacting Mattoni’s consideration. young flowers of Erigonum sp., and the blue butterfly populations. Evaluation of Evaluation of Information Provided in larvae feed on pollen and later the available information indicates that the Petition and in Our Files developing seeds (Pratt 1994, p. 388). there is not sufficient evidence to The petition does not provide Mattoni’s blue butterfly is known suggest that these potential threats are information to support the assertion that from the west fork of Beaver Creek occurring in occupied areas to the extent that they may be affecting this existing regulatory mechanisms are (Shields 1975, p. 20), west of Charleston inadequate to protect the subspecies Reservoir (Austin 1998a, p. 633; Nevada subspecies’ status such that it may warrant listing under the Act. Also see from potential threats because it does Natural Heritage Program Database not provide substantial information to (NNHPD) 2008), west of Pequop Summit the ‘‘Summary of Common Threats’’ section for information pertaining to support their assertion that threats are (Austin and Leary 2008, p. 76; NNHPD occurring under the other factors. The 2008), and the Pilot-Thousand Springs, livestock grazing and climate change as potential threats. petition does not connect inadequate Long-Ruby Valleys, and Bruneau River Based on our evaluation of the existing regulatory mechanisms to watersheds in Elko County, Nevada information provided in the petition losses of Mattoni’s blue butterfly (NNHPD 2008; NatureServe 2009a, p. 2). and in our files, we have determined populations or declining population Shields (1975, p. 21) stated that since that the petition does not present trends. We do not have information in the host plant was common between substantial information to indicate that our files related to the inadequacy of 5,000 and 10,500 ft (1,524 to 3,200 m) listing Mattoni’s blue butterfly may be existing regulatory mechanisms for this in elevation in the western United warranted due to the present or subspecies. Also see the ‘‘Summary of States, Mattoni’s blue butterfly may be threatened destruction, modification, or Common Threats’’ section for more widespread than was known at curtailment of its habitat or range. information pertaining to the that time. Austin et al. (2000, p. 3) Factors B and C: inadequacy of existing regulatory indicate that this subspecies is mechanisms as a potential threat. ‘‘apparently rare where it is found Information Provided in the Petition Based on our evaluation of the * * *.’’ The petition states that it is not information provided in the petition and in our files, we have determined Factor A: known whether overutilization, disease, or predation are threats to this that the petition does not present Information Provided in the Petition subspecies (WildEarth Guardians 2010, substantial information to indicate that p. 8). Information referenced in the listing Mattoni’s blue butterfly may be The petition asserts that land use, petition indicates that one female and warranted due to the inadequacy of livestock grazing and trampling, and one male are known to have been existing regulatory mechanisms. climate change may affect this collected in 1969 (Austin 1998a, p. 633). Factor E: subspecies’ habitat (WildEarth Guardians 2010, pp. 25, 40). The Evaluation of Information Provided in Information Provided in the Petition petition also states that land use and the Petition and in Our Files The petition indicates that this other factors could hinder dispersal The petition does not provide subspecies may be vulnerable due to (WildEarth Guardians 2010, p. 25). information that overutilization, limited range (WildEarth Guardians

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2010, pp. 10–11, 40). The petition County, California (McGuire 1998, p. which could suggest a negative response asserts that Mattoni’s blue butterfly may 462). Habitat at the type locality for the to threats such as those claimed. be restricted to its habitat in Elko Mono Basin skipper is described as Evaluation of the available information County, Nevada (WildEarth Guardians gently rolling hills with sandy soil does not establish that these potential 2010, p. 25). If the subspecies is between 6,800 and 7,500 ft (2,072 and threats are occurring in occupied areas dependent on its specific host plant, it 2,286 m) in elevation (McGuire 1998, p. and may be impacting this subspecies. may not be able to disperse far enough 462). The vegetation consists of Pinus Also see the ‘‘Summary of Common to other locations where the host plant monophylla (singleleaf pin˜ on) Threats’’ section for information can be found (Shields and Reveal 1988, woodlands and Great Basin sagescrub pertaining to livestock grazing and p. 80). The petition also indicates with Artemisia tridentata (big climate change as potential threats. Austin et al. (2000, p. 3) said that this sagebrush), Chrysothamnus viscidiflorus Based on our evaluation of the subspecies is ‘‘apparently rare where it (yellow rabbitbrush), Eriogonum information provided in the petition is found * * *.’’ umbellatum ssp. (sulphurflower and in our files, we have determined buckwheat), Lupinus argenteus (silvery Evaluation of Information in the Petition that the petition does not present lupine), and Stipa sp., including Stipa and Our Files substantial information to indicate that pinetorum (pinewoods needlegrass). At listing the Mono Basin butterfly may be The petition does not present, nor do least one population was described as warranted due to the present or we have information in our files, related using ‘‘open, sparse sage flats’’ (McGuire threatened destruction, modification, or to population numbers, size, or trends 1998, p. 462). Individuals were seen curtailment of its habitat or range. for Mattoni’s blue butterfly. The petition within this area at Granite and Glass Factors B and C: does not provide information on chance Mountains; near Bodie; and near Laws events or other threats to the subspecies (McGuire 1998, p. 462). McGuire (1998, Information Provided in the Petition and connect them to a possibly p. 462) indicates this subspecies may restricted range or small numbers for the The petition states that it is not occur elsewhere in similar Adobe Hills known whether overutilization, disease, subspecies or the potential for such habitat. The Adobe Hills extend into or predation are threats to this chance events to occur in occupied western Mineral County, Nevada, where subspecies (WildEarth Guardians 2010, habitats in the future. In the absence of a similar skipper phenotype was p. 8). Information referenced in the specific information identifying threats discovered (Austin and McGuire 1998, petition indicates that 17 males and 3 to the subspecies and connecting them p. 780; McGuire 1998, pp. 462–463). females are known to have been to a restricted geographic range or small Factor A: numbers of the subspecies, or the collected between 1978 and 1986 potential for such events to occur in Information Provided in the Petition (McGuire 1998, p. 462). occupied habitats, we do not consider a The petition asserts that livestock Evaluation of Information Provided in restricted geographic range or rarity by grazing and its associated effects and the Petition and in Our Files themselves to be threats to this climate change are threats to the The petition does not provide subspecies. Many naturally rare species subspecies (WildEarth Guardians 2010, have persisted for long periods within pp. 28, 40). The petition also claims that information that overutilization, small geographic areas. The fact that a unnatural fires that result from invasive disease, or predation has negatively species is rare does not necessarily plants spread by grazing eliminate shrub impacted the subspecies. While the indicate that it may meet the definition steppe habitat (WildEarth Guardians petition’s referenced material provides of threatened or endangered under the 2010, p. 28). some information about known numbers Act. Also see the ‘‘Summary of Common of collections, the petition does not Evaluation of Information Provided in Threats section’’ for information provide any information about the the Petition and in Our Files pertaining to limited distribution and population sizes or trends during this small population size as potential The petition does not provide specific time period. Given the low number of threats. supporting information that livestock individuals collected over an 8-year Therefore, based on our evaluation of grazing is impacting the Mono Basin time span, the length of time since these the information provided in the petition skipper in the Adobe Hills. The petition collections were made, and the lack of and in our files, we have determined does not provide any information that information about the relative impact to that the petition does not present would indicate past, current, or future the population, the petition does not substantial information to indicate that livestock grazing practices have, are, or provide substantial information to listing Mattoni’s blue butterfly may be may negatively impact the Mono Basin indicate that collection may be a threat warranted due to other natural or skipper or its habitat. We do not have to the subspecies. We have no manmade factors affecting the additional information in our files information in our files related to subspecies’ continued existence. related to livestock grazing in the Adobe overutilization, disease, or predation for Hills. The petition does not present, nor this subspecies. Also see the ‘‘Summary Mono Basin Skipper (Hesperia uncas do we have in our files, any specific, of Common Threats’’ section for giulianii) supporting information that indicates information pertaining to We accept the characterization of the invasive plants are spreading in the overutilization, disease, and predation Mono Basin skipper as a valid Adobe Hills and that unnatural fire is as potential threats. subspecies based on its description by resulting from invasive plants or that Based on our evaluation of the McGuire (1998, pp. 461–462). The Mono unnatural fire is eliminating shrub- information provided in the petition Basin skipper flies from May to mid-July steppe habitat. The petition does not and in our files, we have determined (Austin and McGuire 1998, p. 780; present, nor do we have in our files, that the petition does not present Davenport et al. 2007, p. 8). Females lay specific supporting information related substantial information to indicate that their eggs on Stipa sp. (needlegrass) to impacts due to climate change for the listing the Mono Basin skipper may be (McGuire 1998, p. 463). Mono Basin skipper. The petition does warranted due to Factor B The type locality for the Mono Basin not report loss of populations or (overutilization for commercial, skipper is the Adobe Hills area in Mono reduction in numbers of this subspecies recreational, scientific, or educational

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purposes) or Factor C (disease or the future. In the absence of specific Information Provided in the Petition predation). information identifying such threats to The petition asserts that water Factor D: the subspecies and connecting them to a restricted geographic range or small development, agriculture, livestock Information Provided in the Petition population numbers of the subspecies, grazing, energy production, and climate or the potential for such events to occur change may impact this subspecies The petition asserts that inadequate (WildEarth Guardians 2010, pp. 30–31, existing regulatory mechanisms are a in occupied habitats, we do not consider 40). The petition provides information threat to this subspecies (WildEarth restricted geographic range or small indicating that both Duckwater and Guardians 2010, pp. 8, 40). The BLM population numbers by themselves to be Lockes Springs are considered ‘‘highest lists the Mono Basin skipper as a threats to this subspecies. In addition, conservation priority’’ areas, while sensitive species in Nevada (where it is this subspecies, as indicated above, is Currant Springs is considered a not known to occur) but not in distributed over more than one companion site (NNHP 2006, pp. 10– California (where it is known to occur) population thereby reducing its 11). The NNHP includes Railroad Valley (BLM 2007a, p. J–37). This designation, extinction vulnerability due to springs and marshes in general as one where it is applied, can offer some stochastic (random) events. Also see the of the State’s 26 highest priority wetland conservation consideration. ‘‘Summary of Common Threats’’ section for information pertaining to limited areas (NHHP 2007, p. 8), and they are Evaluation of Information Provided in distribution and small population size considered 80 percent degraded and 20 the Petition and in Our Files as potential threats. percent converted to other uses (NNHP 2007, p. 41). Moderate to high The petition does not provide specific Therefore, based on our evaluation of information to support the assertion that stressors—activities, events, or other the information provided in the petition stimuli that cause stress to a species or existing regulatory mechanisms are and in our files, we have determined inadequate to protect the subspecies environment—impacting these general that the petition does not present wetland areas in Railroad Valley from potential threats because it does substantial information to indicate that not provide substantial information to include water diversion and listing the Mono Basin skipper may be development, groundwater pumping, support their assertion that threats are warranted due to other natural or occurring under the other factors. The hydrogeomorphic modification, manmade factors affecting the agriculture, livestock grazing, petition does not associate inadequate subspecies’ continued existence. existing regulatory mechanisms to recreation, nonnative species invasion, losses of Mono Basin skipper Railroad Valley Skipper (Hesperia and energy development (NNHP 2007, populations or declining population uncas fulvapalla) p. 41). The petition implies that these trends. We do not have information in stressors impacting the general wetland our files related to the inadequacy of Because two of the petitioned areas are negatively impacting the existing regulatory mechanisms for this subspecies share the same common Railroad Valley skipper (H. u. subspecies. Also see the ‘‘Summary of name, Railroad Valley skipper, we also fulvapalla). Common Threats’’ section for include their scientific name throughout The petition claims that SNWA’s information pertaining to the the analyses for clarity. proposal to pump groundwater in inadequacy of regulatory mechanisms as We accept the characterization of the central Nevada is likely to affect spring a potential threat. Railroad Valley skipper (Hesperia uncas discharges in Railroad Valley, including Based on our evaluation of the fulvapalla) as a valid subspecies based discharges for Duckwater and Lockes information provided in the petition on its description by Austin and Springs (Deacon et al. 2007, p. 693). and in our files, we have determined McGuire (1998, p. 777). A single brood Current pumping plus water rights that the petition does not present flies from mid June to mid July (Austin sought for future pumping represent 265 substantial information to indicate that and McGuire 1998, p. 777). Adults have percent of the estimated groundwater listing the Mono Basin skipper may be been documented nectaring on thistles perennial yield for Railroad Valley warranted due to the inadequacy of (Cirsium sp.) (Austin and McGuire 1998, (Deacon et al. 2007, p. 691). The petition existing regulatory mechanisms. p. 777). references information related to groundwater pumping simulations for Factor E: The Railroad Valley skipper’s (H. u. SNWA’s proposed project, and pumping fulvapalla) type locality is Lockes Information Provided in the Petition could lower water levels in northern Ponds, a grassy alkaline meadow near and southern Railroad Valley (Schaeffer The petition asserts that the Mono Lockes in Railroad Valley, Nye County, and Harrill 1995, p. 29). The simulated Basin skipper may be vulnerable due to Nevada (Austin and McGuire 1998, p. drawdowns for Duckwater, occurring in limited range and small population 777). The Nevada Natural Heritage the central part of northern Railroad numbers (WildEarth Guardians 2010, Program (NNHP) (2006, p. 38; NNHPD Valley, are a few tenths of a foot in pp. 10–11, 40). 2008) indicates the subspecies has been upper and lower cell layers (Schaeffer documented near three spring sites Evaluation of Information in the Petition and Harrill 1995, p. 29) and are not (Currant, Duckwater, and Lockes) in and Our Files demonstrated until simulated pumping Railroad Valley, Nye County. Austin The petition does not present, nor do occurs during phase four, decades later and McGuire (1998, p. 777) indicate this we have information in our files related (Schaeffer and Harrill 1995, pp. 31–32). subspecies is also known from other to, population numbers, size, or trends The simulated drawdowns in the alkaline meadows in Railroad Valley for the Mono Basin skipper. The southern part of Railroad Valley are and the Calleo area, Juab County, Utah. petition does not provide information more substantial, reaching about 100 ft However, according to the petition, on chance events or other threats to the (30.5 m) in upper and lower cell layers subsequent literature does not report subspecies and connect them to a (Schaeffer and Harrill 1995, p. 29). this subspecies from Utah (WildEarth possibly restricted range for this Because pumping wells are to be placed Guardians 2010, p. 29). subspecies or the potential for such primarily in the southern part of threats to occur in occupied habitats in Factor A: Railroad Valley, pumping will have a

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greater impact in the south than in the of Lockes Ranch such that potential past habitat. Also see the ‘‘Summary of north (Schaeffer and Harrill 1995, p. 29). threats to the subspecies have been Common Threats’’ section for In addition, most of Nevada’s oil reduced. In 2008, the four springs (Big, information pertaining to water production comes from several small oil North, Hay Corral, and Reynolds) on development, agriculture, livestock fields in Railroad Valley (WildEarth Lockes Ranch underwent restoration, grazing, and climate change as potential Guardians 2010, p. 30), and this type of including re-creation of a sinuous threats. development may also affect spring channel, improvements to other existing Based on our evaluation of the aquifers in Railroad Valley (Deacon channels, elimination of an irrigation information provided in the petition Williams and Williams 1989, p. 466). ditch, and removal of nonnative and in our files, we have determined Evaluation of Information Provided in vegetation from the spring systems that the petition does not present the Petition and in Our Files (Poore 2008b, pp. 1–10). The land substantial information to indicate that acquisition and the restoration activities listing the Railroad Valley skipper (H. u. Although we have one letter from a have reduced impacts from livestock fulvapalla) may be warranted due to the contractor indicating that lowering the grazing and recreation, and eliminated present or threatened destruction, water table and overgrazing could impacts from spring diversion at these modification, or curtailment of its theoretically threaten the subspecies sites. While these restoration activities habitat or range. (Austin et al. 2000, p. 3), our evaluation at both Duckwater and Lockes Ranch are Factors B and C: of all available information indicates directed at improving habitat conditions that these threats are unlikely to impact for the Railroad Valley springfish, they Information Provided in the Petition the subspecies. Based on information in may also have provided habitat benefits The petition states that it is not our files, the Railroad Valley skipper (H. to the Railroad Valley skipper (H. u. known whether overutilization, disease, u. fulapalla) occurs in the Railroad fulvapalla) (if it occurs in the immediate or predation are threats to this Valley Northern hydrographic area vicinity); this suggests that potential (#173B) (NDWR 2010). The perennial subspecies (WildEarth Guardians 2010, threats to the skipper from water p. 8). Information referenced in the yield of the Railroad Valley Northern diversions, livestock grazing, and hydrographic area is 75,000 afy petition indicates that 105 males and 75 invasive species have been significantly females were collected between 1984 (92,510,000 m3/year), and there are reduced for the long-term. 24,943 afy (30,770,000 m3/year) and 1990 (Austin and McGuire 1998, The information presented in the p. 777). committed; thus, the permitted petition for this subspecies does not groundwater rights do not approach or provide supporting information that Evaluation of Information Provided in exceed the estimated average annual groundwater development has or may the Petition and in Our Files recharge in this hydrographic area. affect habitat for the Railroad Valley Furthermore, Service files provide The petition does not provide skipper (H. u. fulvapalla). Information information that overutilization, information about native habitat in our files demonstrates that the restoration efforts conducted at both disease, or predation has negatively assertion that water development may impacted this subspecies. While the Duckwater Springs and Lockes Springs. impact the butterfly is likely unfounded, In 2006 and 2008, restoration efforts petition’s referenced material provides because the subspecies occurs in some information about known numbers were conducted at Big Warm Spring and northern Railroad Valley where Little Warm Spring on the Duckwater of collections, the petition does not groundwater does not appear to be provide any information about the Indian Reservation to reduce impacts overcommitted. Information in our files population sizes or trends during this from water diversion (Poore 2008a, indicates that SNWA’s proposed project time period. Given the low number of pp. 1–4). Big Warm Spring and Little may result in only minor, if any, water individuals collected over a 6-year time Warm Spring are offered some table lowering in the area that the span, the length of time since these protections through long-term Partners subspecies occurs, and that recent collections were made, and the lack of for Fish and Wildlife Program grant conservation efforts have significantly information about the relative impact to agreements, funding through section 6 reduced threats. of the Act, and a Safe Harbor Agreement The petition does not provide specific the population, the petition does not (Fish and Wildlife Service and supporting information that the Railroad provide substantial information to Duckwater Shoshone Tribe 2007, pp. 1– Valley skipper (H. u. fulvapalla) may be indicate that collection may be a threat 25; Fish and Wildlife Service 2009, pp. impacted by agriculture, livestock to the subspecies. We have no 1–36). These agreements should prevent grazing, energy production, or climate information in our files related to future threats from spring development, change at occupied locations. The overutilization, disease, or predation for water pollution, recreation, and petition does not provide specific this subspecies. Also see the ‘‘Summary overgrazing. In 2005, Lockes Ranch supporting information regarding past, of Common Threats’’ section for (where the Lockes Springs occur) was present, or future conditions of these information pertaining to purchased by the State of Nevada threats or their scope, immediacy, or overutilization, disease, and predation through a Recovery Lands Acquisition intensity at occupied or suitable habitat. as potential threats. grant for protection of the Railroad The petition does not report loss of Based on our evaluation of the Valley springfish (Crenichthys nevadae), populations or reduction in numbers of information provided in the petition a federally listed threatened fish with this subspecies to these potential and in our files, we have determined designated critical habitat. While there threats, which could suggest a negative that the petition does not present is no formal protection for butterflies in response to a threat such as those substantial information to indicate that the State of Nevada, this purchase and claimed. We do not have in our files listing the Railroad Valley skipper (H. u. associated conservation measures for specific information to support the fulvapalla) may be warranted due to the springfish provides some protection concern of potential threats from Factor B (overutilization for to riparian habitat, spring systems, and agriculture, grazing, energy commercial, recreational, scientific, or associated wildlife. The State actively development, or climate change to educational purposes) or Factor C manages recreation and grazing or has impacts to Railroad Valley skipper (disease or predation). eliminated these activities from portions (H. u. fulvapalla) populations or its Factor D:

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Information Provided in the Petition numbers, or trends for the Railroad extensive alkaline flat in the river’s The petition asserts that inadequate Valley skipper (H. u. fulvapalla). The floodplain (Austin and McGuire 1998, existing regulatory mechanisms are a petition does not provide information p. 776). threat to this subspecies (WildEarth on chance events or other threats to the Factor A: subspecies and connect them to Guardians 2010, p. 40). The BLM lists Information Provided in the Petition the Railroad Valley skipper (H. u. potential small population size or The petition asserts that water fulvapalla) as a sensitive species (BLM restricted range or the potential for such development, agriculture, livestock 2007a, p. J–37). This designation can chance events to occur in occupied grazing, and climate change may impact offer it some conservation habitats in the future. In the absence of this subspecies (WildEarth Guardians consideration. specific information identifying such threats to the subspecies and connecting 2010, pp. 33–34, 40). The petition Evaluation of Information Provided in them to small populations or restricted provides information indicating that the the Petition and in Our Files range of the subspecies, or the potential NNHP ranks the Mason Valley/Walker The petition does not provide for such events to occur in occupied River riparian zone among the 26 information to support the assertion that habitats, we do not consider small highest priority wetlands in Nevada existing regulatory mechanisms are population numbers or restricted range (NNHP 2007, p. 25). In this category, inadequate to protect the subspecies by themselves to be threats to this 100 percent of the wetland areas have from potential threats because it does subspecies. In addition, this subspecies been converted to other land uses or not provide substantial information to is distributed over more than one degraded (NNHP 2007, p. 38). Moderate support their assertion that threats are population thereby reducing its to high stressors impacting wetlands in occurring under the other factors. The extinction vulnerability due to the Mason Valley/Walker River riparian zone include water diversion/ petition does not associate inadequate stochastic events. Also see the development, groundwater pumping, existing regulatory mechanisms to ‘‘Summary of Common Threats’’ section hydrogeomorphic modifications, land losses of Railroad Valley skipper (H. u. for information pertaining to limited development, agriculture, livestock fulvapalla) populations or declining distribution and small population size as potential threats. grazing, mining, and nonnative species population trends. We do not have Therefore, based on our evaluation of invasion (NNHP 2007, p. 38). In the information in our files related to the the information provided in the petition lower Reese River Valley, 80 percent of inadequacy of existing regulatory and in our files, we have determined the ‘‘priority wetland areas’’ have been mechanisms for this subspecies. Also that the petition does not present converted to other land uses or see the ‘‘Summary of Common Threats’’ substantial information to indicate that degraded (NNHP 2007, p. 41). Moderate section for information pertaining to the listing the Railroad Valley skipper (H. u. to high stressors impacting the wetlands inadequacy of existing regulatory fulvapalla) may be warranted due to in the lower Reese River Valley include mechanisms as a potential threat. other natural or manmade factors water diversion/development, Based on our evaluation of the affecting the subspecies’ continued groundwater pumping, land information provided in the petition existence. development, agriculture, livestock and in our files, we have determined grazing, and nonnative species invasion Railroad Valley Skipper (Hesperia that the petition does not present (NNHP 2007, p. 41). The petition uncas reeseorum) substantial information to indicate that implies that these activities which occur listing the Railroad Valley skipper (H. u. Because two of the subspecies share generally in wetland areas in Mason fulvapalla) may be warranted due to the the same common name, Railroad Valley/Walker River and lower Reese inadequacy of existing regulatory Valley skipper, we also include their River Valley are impacting the Railroad mechanisms. scientific name throughout the analyses Valley skipper (H. u. reeseorum). Factor E: for clarity. We accept the characterization of the Evaluation of Information Provided in Information Provided in the Petition Railroad Valley skipper (Hesperia uncas the Petition and Our Files The petition indicates the subspecies reeseorum) as a valid subspecies based The petition does not provide, nor do may be vulnerable due to small on its description by Austin and we have in our files, specific locations population numbers (WildEarth McGuire (1998, p. 776). This subspecies where this subspecies has been Guardians 2010, pp. 10–11, 40). Austin flies as a single brood during mid June observed other than the type locality. (1985, pp. 125–126) indicates Hesperia to early August (Austin and McGuire The petition does not provide specific, uncas spp. appear to be restricted to the 1998, p. 776). Adults have been supporting information to indicate that valleys where they occur. The petition documented using thistle (Cirsium spp.) the Railroad Valley skipper (H. u. suggests that isolated populations of the for nectar (Austin and McGuire 1998, reeseorum) may be impacted by water Railroad Valley skipper (H. u. p. 776). The larval host plant is development, agriculture, livestock fulvapalla) are probably unable to Sporobolus airoides (alkali sacaton) grazing, or climate change. The petition disperse to suitable habitat or (Austin and Leary 2008, p. 11). does not provide supporting interconnect with other populations The Railroad Valley skipper (H. u. information regarding past, present, or especially where habitat fragmentation reeseorum) is known from the Reese future condition of these threats or their has occurred due to various factors such River and Mason Valleys in central scope, immediacy, or intensity at as land use, water development, and (Lander County) and western Nevada occupied or suitable habitat. The climate change (WildEarth Guardians (Lyon County), respectively, where it petition does not report loss of 2010, p. 30). occurs in alkaline, Distichlis spicata populations or reduction in numbers of (saltgrass) flats (Austin and McGuire this subspecies which could suggest a Evaluation of Information Provided in 1998, p. 776). The type locality is negative response to threats such as the Petition and in Our Files located along Nevada State Route 722 those claimed. We do not have The petition does not present, nor do (previously State Route 2) information in our files related to we have specific information in our approximately 4 mi (6.4 km) east- potential threats from water files, related to population sizes, northeast of the Reese River in an development, agriculture, livestock

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grazing, or climate change to Railroad Factor D: other threats to the subspecies and Valley skipper (H. u. reeseorum) connect them to small population Information Provided in the Petition populations or its habitat. Also see the numbers or restricted range or the ‘‘Summary of Common Threats’’ section The petition asserts that inadequate potential for such chance events to for information pertaining to water existing regulatory mechanisms are a occur in occupied habitats in the future. development, agriculture, livestock threat to this subspecies (WildEarth In the absence of specific information grazing, and climate change as potential Guardians 2010, pp. 8, 40). The BLM identifying such threats to the threats. does not list this subspecies as a subspecies and connecting them to Based on our evaluation of the sensitive species (BLM 2007a). small population numbers or restricted information provided in the petition Evaluation of Information Provided in range of the subspecies, or the potential and our files, we have determined that the Petition and in Our Files for such events to occur in occupied the petition does not present substantial habitats, we do not consider small information to indicate that listing the The petition does not provide population numbers or restricted range Railroad Valley skipper (H. u. information to support the assertion that by themselves to be threats to this reeseorum) may be warranted due to the existing regulatory mechanisms are subspecies. In addition, this subspecies present or threatened destruction, inadequate to protect the subspecies is distributed over more than one modification, or curtailment of its from potential threats because it does population, thereby reducing its habitat or range. not provide substantial information to extinction vulnerability due to Factors B and C: support their assertion that threats are stochastic events. Also see the occurring under the other factors. The ‘‘Summary of Common Threats’’ section Information Provided in the Petition petition does not associate inadequate for information pertaining to limited The petition states that it is not existing regulatory mechanisms to distribution and small population size known whether overutilization, disease, losses of Railroad Valley skipper (H. u. as potential threats. or predation are threats to this reeseorum) populations or declining Therefore, based on our evaluation of subspecies (WildEarth Guardians 2010, population trends. We do not have the information provided in the petition p. 8). Based on information referenced information in our files related to the and our files, we have determined that in the petition, 138 male and 82 female inadequacy of existing regulatory the petition does not present substantial specimens were collected between 1969 mechanisms for this subspecies. Also information to indicate that listing the and 1984 (Austin and McGuire 1998, see the ‘‘Summary of Common Threats’’ Railroad Valley skipper (H. u. p. 776). section for information pertaining to the reeseorum) may be warranted due to inadequacy of existing regulatory other natural or manmade factors Evaluation of Information Provided in mechanisms as a potential threat. the Petition and Our Files affecting the subspecies’ continued Based on our evaluation of the existence. The petition does not provide information provided in the petition information that overutilization, and our files, we have determined that Species for Which Substantial disease, or predation has negatively the petition does not present substantial Information Was Presented impacted the subspecies. While the information to indicate that listing the In this section, the butterfly petition’s referenced material provides Railroad Valley skipper (H. u. subspecies are listed in alphabetical some information about known numbers reeseorum) may be warranted due to the order by their common names. of collections, the petition does not inadequacy of existing regulatory provide any information about the mechanisms. Baking Powder Flat Blue Butterfly (Euphilotes bernardino minuta) population sizes or trends during this Factor E: time period. Given the low number of We accept the characterization of the individuals collected over a 15-year Information Provided in the Petition Baking Powder Flat blue butterfly as a time span, the length of time since these The petition indicates that this valid subspecies based on its collections were made, and the lack of subspecies may be vulnerable due to description by Austin (1998b, p. 549). information about the relative impact to small population numbers (WildEarth The Baking Powder Flat blue butterfly is the population, the petition does not Guardians 2010, pp. 10–11, 40). Austin exclusively associated with Eriogonum provide substantial information to (1985, pp. 125–126) indicates Hesperia shockleyi (Shockley’s buckwheat), on indicate that collection may be a threat uncas spp. appear to be restricted to the which both larvae and adults are found to the subspecies. We have no valleys where they occur. The petition (Austin 1993, p. 5; Austin and Leary information in our files related to suggests that isolated populations of this 2008, pp. 68–69). Larvae of this overutilization, disease, or predation for subspecies of the Railroad Valley subspecies are tended by ants (Formica this subspecies. Also see the ‘‘Summary skipper (H. u. reeseorum) are probably obtusopilosa) (Shields 1973 cited by of Common Threats’’ section for unable to disperse to suitable habitat or Austin 1993, p. 5). Pupae are likely information pertaining to interconnect with other populations formed in and protected by litter that is overutilization, disease, and predation especially where land use, water in and beneath the host plant (Austin as potential threats. development, or climate change 1993, p. 5). Adults fly between mid and Based on our evaluation of the fragment habitat (WildEarth Guardians late June (Austin 1993, p. 6; 1998a, information provided in the petition 2010, pp. 33). p. 550), and there is one brood (Austin and our files, we have determined that 1993, p. 6). the petition does not present substantial Evaluation of Information Provided in The Baking Powder Flat blue butterfly information to indicate that listing the the Petition and in Our Files is only known from Baking Powder Flat Railroad Valley skipper (H. u. The petition does not present, nor do in Spring Valley, in Lincoln and White reeseorum) may be warranted due to we have specific information in our files Pine Counties, Nevada, a flat valley Factor B (overutilization for related to population numbers, size, or bottom with scattered sand dunes commercial, recreational, scientific, or trends for the Railroad Valley skipper (Austin 1998b, p. 550; Austin and Leary educational purposes) or Factor C (H. u. reeseorum). The petition did not 2008, pp. 68–69). Baking Powder Flat (disease or predation). provide information on chance events or contains the largest known contiguous

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habitat for the Baking Powder Flat blue proposed project may directly impact (98,680,000 m3/year), and there are butterfly (BLM 2009, p. 20). In 1993, the Baking Powder Flat area, including 86,085 afy (106,200,000 m3/year) Austin (1993, p. 5) reported two the Baking Powder Flat Area of Critical committed (NDWR 2010). However, colonies in southern Spring Valley, and Environmental Concern (ACEC), due to because the host plant grows in dry also suggested that other areas could monitoring and facility installation and areas and not within the Baking Powder support the host plant (Austin 1993, construction activities (BLM 2009, pp. Flat wetland complex, it is unlikely that p. 6). Eriogonum shockleyi grows on 20–21). The ACEC was established in current overcommitted groundwater relatively hard and bare areas between 2008 (72 FR 67748, p. 67749; 73 FR rights or SNWA’s proposed water the sand dunes (Austin 1998b, p. 550). 55867) to protect the Baking Powder development project are or will Searches of nearby areas in southern Flat blue butterfly (BLM 2009, p. 20). indirectly impact the host plant, and Spring Valley did not reveal additional According to the petition, additional thus the Baking Powder Flat blue colonies of the subspecies or its host threats to this subspecies and its habitat butterfly, through possible lowering of plant (Austin 1993, p. 5; 1998b, p. 550); include fire in the surrounding the water table. however, Austin and Leary (2008, pp. sagebrush habitat and subsequent We have information in our files 68–69) list what appear to be seven nonnative plant species invasion (B. (Austin et al. 2000, p. 3; Austin 1993, discrete locations where this subspecies Boyd, pers. comm. cited by WildEarth p. 7) that indicates that soil compaction (adults and larvae) has been seen 2010, p. 14) and climate change. The or direct destruction of host plants from between 1969 and 2002. The NNHPD petition also mentions disturbance to activities such as livestock trampling (2008) indicates that this subspecies this subspecies’ host plant from and vehicles may impact the Baking occurs in the Baking Powder Flat area trampling, and soil compaction from Powder Flat blue butterfly, though no near Blind Spring. During a general livestock grazing (B. Boyd, pers. comm. further specific, supporting information terrestrial invertebrate survey conducted cited in WildEarth 2010, p. 13, is provided. in 2006 at 76 sites in eastern Nevada, NatureServe 2009b, p. 2). According to For the other threats mentioned (fire including 37 sites in Spring Valley (2 of the petition, three grazing allotments and climate change), the petition and which could be in or near known appear to overlap with the Baking information in our files do not present locations for this subspecies), the Powder Flat ACEC (BLM 2007b, Map specific supporting information Baking Powder Flat blue butterfly was 2.4 16–1). Areas of the ACEC can be regarding past, present, or future not encountered (Ecological Sciences, ‘‘heavily impacted’’ by livestock grazing conditions of these potential threats or Inc. 2007, pp. 80–82). (BLM 2009, p. 21). In addition to their scope, immediacy, or intensity at livestock grazing, plant collecting and occupied or suitable habitats. The Factor A: limited off-road vehicle use are also petition does not report loss of Information Provided in the Petition authorized within the ACEC (BLM populations or reduction in numbers of 2007b, p. 2.4–101). this subspecies which could suggest a The petition asserts that water negative response to these threats. Also development, fire, nonnative plant Evaluation of Information Provided in see ‘‘Summary of Common Threats’’ invasion, livestock grazing, and climate the Petition and Our Files section for information pertaining to change may impact this subspecies While several activities as listed water development, livestock grazing, (WildEarth Guardians 2010, pp. 13–14, above (water diversion and and climate change as potential threats. 40). The petition indicates that the development, groundwater pumping, Based on our evaluation of the NNHP has ranked the Baking Powder livestock grazing, agriculture, mining, information provided in the petition Flat playa/ephemeral pool/spring pool and nonnative species invasion) may be and in our files, we have determined complex among the 26 highest priority impacting a portion (30 percent) of the that the petition does not present wetland areas in the State (NNHP 2007, Baking Powder Flat wetland complex, substantial information to indicate that p. 8). The moderate- to-high stressors the petition does not provide supporting listing the Baking Powder Flat blue impacting the complex include water information that these activities are butterfly may be warranted due to the diversion and development, occurring in occupied Baking Powder present or threatened destruction, groundwater pumping, livestock Flat blue butterfly habitat and are modification, or curtailment of its grazing, agriculture, mining, and negatively impacting it, especially since habitat or range from water nonnative species invasion (NNHP the subspecies’ host plant does not development, fire, nonnative species 2007, p. 42). It is estimated that about occur in wetland areas. Adults and invasion, or climate change. 30 percent of the wetland area has been larvae utilize Eriogonum shockleyi to However, due to potential adverse degraded or converted to other land meet life-history requirements. This impacts from livestock grazing and uses (NHHP 2007, p. 42). The petition plant grows on relatively hard and bare disturbance to the host plant from implies that these stressors impacting areas between the sand dunes in Baking trampling and soil compaction from the wetland complex are negatively Powder Flat (Austin 1998b, p. 550) and livestock grazing and vehicles, we have impacting the Baking Powder Flat blue mostly on gravelly, clayey, or sandy determined that information in the butterfly. soils, or on rocky outcrops and ledges, petition and our files does present The petition raises concerns about in association with Sarcobatus substantial information to indicate that SNWA’s proposal to pump and transfer (greasewood), Atriplex (shadscale), and the Baking Powder Flat blue butterfly approximately 91,200 afy (112,500,000 Artemisia (sagebrush) (Kartesz 1987, may warrant listing due to the present m3/year) of groundwater from Spring p. 282). It has been described by BLM or threatened destruction, modification, Valley (Meyers 2006, p. 6) to Las Vegas, as common in Baking Powder Flat (BLM or curtailment of its habitat or range Nevada. This proposed project could 2009, p. 20). We have information in our from livestock grazing and vehicle use. lower the water table in Spring Valley files that indicates the permitted Injury to or loss of the host plant, by 200 ft (61 m) in 100 years, and 300 groundwater rights in the Spring Valley Eriogonum shockleyi, populations ft (91 m) in 1,000 years (Meyers 2006, hydrographic area (#184) exceed the would negatively impact larvae and p. 75), and Charlet (2006, p. 19) estimated average annual recharge; the adults as both life stages utilize this predicted that desertification of Baking perennial yield of the Spring Valley plant for food and shelter. During our Powder Flat would result. The SNWA’s hydrographic area is 80,000 afy status review for this subspecies, we

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will further investigate these potential 67748, p. 67749; 73 FR 55867 entire). information on chance events or other threats. Livestock grazing, plant collecting, and threats to the subspecies and connect Factors B and C: limited off-road vehicle use are them to a restricted range or small authorized within the Baking Powder population number or the potential for Information Provided in the Petition Flat ACEC (BLM 2007b, p. 2.4–101). such threats to occur in occupied The petition states that it is not According to BLM (2009, p. 20), an habitats in the future. Since this known whether overutilization, disease, ACEC is defined as an area ‘‘within the subspecies is distributed over more than or predation are threats to this public lands where special management one population, its extinction subspecies (WildEarth Guardians 2010, attention is required (when such areas vulnerability due to stochastic events p. 8). According to Austin (1998b, are developed or used or where no may be reduced. In the absence of this p. 550) as referenced in the petition, 61 development is required) to protect and information and connection, we do not males and 41 females of this subspecies prevent irreparable damage to important consider restricted geographic range or were collected between 1978 and 1980. historic, cultural, or scenic values, fish small population numbers by and wildlife resources, or other natural themselves to be threats to this Evaluation of Information Provided in systems or processes, or to protect life subspecies. Also see the ‘‘Summary of the Petition and Our Files and safety from natural hazards.’’ The Common Threats’’ section for The petition does not provide Baking Powder Flat ACEC is managed as information pertaining to limited information that overutilization, an ‘‘avoidance area [* * *] [G]ranting distribution and small population size disease, or predation has negatively rights-of-way (surface, subsurface, as potential threats. impacted the subspecies. While the aerial) within the area will be avoided, Therefore, based on the information petition’s referenced material provides but rights-of-way may be granted if there provided in the petition and our files, some information about known numbers is minimal conflict with identified we have determined that the petition of collections, the petition does not resource values and impacts can be does not present substantial information provide any information about the mitigated.’’ to indicate that listing the Baking population sizes or trends during this Evaluation of Information Provided in Powder Flat blue butterfly may be time period. Given the relatively low the Petition and Our Files warranted due to other natural or number of individuals collected over a manmade factors affecting the According to information in our files, 2-year period, the length of time since subspecies’ continued existence. the Baking Powder Flat ACEC does not the collections were made, and the lack However, during our status review of appear to cover the entire area where of information about the relative impact this subspecies, we will further Baking Powder Flat blue butterflies have to the population, the petition does not investigate whether biological been known to occur (BLM 2008b, p. C– provide substantial information to vulnerability is a threat to this 14). Also see the ‘‘Summary of Common indicate that collection may be a threat subspecies. Threats’’ section for information to this subspecies. We have no pertaining to the inadequacy of existing Bleached sandhill skipper (Polites information in our files related to regulatory mechanisms as a potential sabuleti sinemaculata) overutilization, disease, or predation for threat. this subspecies. Also see ‘‘Summary of We have determined that livestock We accept the characterization of the Common Threats’’ section for grazing and vehicle use may be threats bleached sandhill skipper as a valid information pertaining to to the Baking Powder Flat blue butterfly, subspecies based on its description by overutilization, disease, and predation as discussed in Factor A. Thus, we have Austin (1987, pp. 7–8). Distichlis as potential threats. determined that the information in the spicata may serve as the larval host Based on our evaluation of the petition and our files presents plant (Austin 1987, p. 8). Adults have information provided in the petition substantial information indicating that been seen nectaring on white and and our files, we have determined that existing regulatory mechanisms may be yellow composites (Asteraceae) (Austin the petition does not present substantial inadequate as they relate to livestock 1987, p. 8). Adults are known to fly information to indicate that listing the grazing and vehicle use, in general on during late August to mid September, Baking Powder Flat blue butterfly may BLM lands, and also in relation to the and it is unknown if earlier broods be warranted due to Factor B ACEC. During our status review for this occur (Austin 1987, p. 8; Austin et al. (overutilization for commercial, subspecies, we will further investigate 2000, p. 4). recreational, scientific, or educational these and other potential threats and The bleached sandhill skipper is purposes) or Factor C (disease or whether existing regulatory mechanisms known from one location (Baltazor Hot predation). However, during our status may be inadequate. Spring) near Denio Junction, Humboldt review for this subspecies, we will Factor E: County, Nevada (Austin 1987, p. 8; further investigate these potential Austin et al. 2000, p. 4; NNHPD 2008; threats. Information Provided in the Petition B. Boyd, pers. comm. cited in WildEarth Factor D: The petition indicates that the Baking Guardians 2010, p. 15). The area is a salt Powder Flat Blue butterfly may be flat near a hot spring and is densely Information Provided in the Petition vulnerable due to limited range and covered with Distichlis spicata (Austin The petition asserts that inadequate small population numbers (WildEarth 1987, p. 8). Thousands of bleached existing regulatory mechanisms are a Guardians 2010, pp. 10–11, 40). sandhill skippers have been seen in the threat to this subspecies (WildEarth past (A. Warren, pers. comm. cited in Guardians 2010, pp. 8, 40). The petition Evaluation of Information in the Petition WildEarth Guardians 2010, p. 15), but states that this subspecies is a BLM and Our Files the population appears to have declined sensitive species (BLM 2007a, p. J6), The petition does not present, nor do 2 to 3 years ago (B. Boyd, pers. comm. which can afford it some conservation we have in our files, information related cited in WildEarth Guardians 2010, consideration. In addition, BLM has to population numbers, size, or trends p. 15). We have no information in the designated a portion of the Baking for the Baking Powder Flat blue petition or our files about this Powder Flat area as an ACEC (72 FR butterfly. The petition does not provide subspecies population dynamics to

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know if this level of population decline expected to impact groundwater in commercial, recreational, scientific, or is unusual. Humboldt County, located in northwest educational purposes) or Factor C Factor A: Nevada, where this species occurs. Also (disease or predation). However, during see the ‘‘Summary of Common Threats’’ our status review for this subspecies, we Information Provided in the Petition section for information pertaining to will further investigate these potential The petition provides information water development and livestock threats. indicating that the Baltazor Meadow- grazing as potential threats. Factor D: Continental Lake wetland area has been Based on our evaluation of the identified as a priority wetland in information provided in the petition Information Provided in the Petition Nevada, and where 20 percent of this and in our files, we have determined The petition asserts that existing wetland area has been degraded or that the petition does present regulatory mechanisms are inadequate converted to other land uses (NHHP substantial information to indicate that (WildEarth Guardians 2010, pp. 8, 40). 2007, p. 36). The moderate-to-high listing the bleached sandhill skipper The petition states that the BLM lists the may be warranted due to the present or stressors in this area include water bleached sandhill skipper as a sensitive threatened destruction, modification, or diversion/development, groundwater species in Nevada (BLM 2007a, p. J–37), curtailment of its habitat or range pumping, livestock grazing, and energy a status that can offer it some development (NHHP 2007, p. 36). The resulting from water development (other conservation consideration. petition implies these activities are than SNWA’s proposed project) due to adversely impacting the bleached a reported possible decline in numbers Evaluation of Information Provided in sandhill skipper. of the bleached sandhill skipper known the Petition and in Our Files from a single location. During our status Evaluation of Information Provided in The petition does not provide specific review for this subspecies, we will the Petition and Our Files supporting information connecting the further investigate this and other The petition suggests that threats potential threats indicated under Factor potential threats. A, or the extent of these threats, to (water development, livestock grazing, Factors B and C: and energy development) to the Baltazor adverse effects to the known population Meadow-Continental Lake wetland area Information Provided in the Petition of the bleached sandhill skipper, except to indicate a recent reduction in the could impact the bleached sandhill The petition states that it is not number of individuals of this skipper; however, no additional known whether overutilization, disease, subspecies, which could suggest a information is provided. The petition or predation are threats to this negative response to potential threats. does not provide specific supporting subspecies (WildEarth Guardians 2010, information regarding past, present, or p. 8). According to Austin (1987, p. 8), The details of this decline and the future conditions of these threats or referenced in the petition, 27 males and cause(s) of it were not described. We do their scope, immediacy, or intensity at 14 females were collected between 1984 not have information available in our occupied or suitable habitat. The and 1985. files related to the inadequacy of petition does not indicate the acreage of existing regulatory mechanisms for this this occupied location. We do not we Evaluation of Information Provided in subspecies. Also see the ‘‘Summary of have information in our files indicating the Petition and Our Files Common Threats’’ section for whether this location is large or small. The petition does not provide information pertaining to the The petition does indicate a recent information that overutilization, inadequacy of existing regulatory reduction in numbers of the bleached disease, or predation has negatively mechanisms as a potential threat. sandhill skipper, which could suggest a impacted the subspecies. While the Based on our evaluation of the negative response to these threats, but petition’s referenced material provides information provided in the petition details regarding this decline and the some information about known numbers suggesting that a reduction in the reason(s) for it are not provided. The of collections, the petition does not number of individuals of bleached petition does not present information provide any information about the sandhill skipper may have occurred at related to population numbers, size, or population sizes or trends during this the single known population, possibly trends for the bleached sandhill skipper. time period. Given the low number of due to water development we have The petition does not elaborate on when individuals collected, the length of time determined that the petition does the apparent population decline since the collections were made, and the present substantial information to occurred, its magnitude, or reasons for lack of information about the relative indicate that listing the bleached it. It is unknown whether this decline impact to the population, the petition sandhill skipper may be warranted due can be attributed to the normal natural does not provide substantial to the inadequacy of existing regulatory fluctuations of butterfly populations. information to indicate that collection mechanisms. During our status review Butterfly populations are highly may be a threat to the subspecies. We for this subspecies, we will further dynamic and numbers and distribution have no information in our files related investigate these and other potential can be highly variable year to year to overutilization, disease, or predation threats and whether existing regulatory (Weiss et al. 1997, p. 2). However, we for this subspecies. Also see the mechanisms may be inadequate. are concerned with this potential ‘‘Summary of Common Threats’’ section Factor E: decline in the only known population for information pertaining to Information Provided in the Petition for this subspecies. Our files also overutilization, disease, and predation include a statement that the bleached as potential threats. The petition indicates that this sandhill skipper could be impacted by Based on our evaluation of the subspecies is known from only one area; water table changes (Austin et al. 2000, information provided in the petition, we although thousands had been seen in p. 4), but there is no specific supporting have determined that the petition does the past, a decline appears to have information related to this potential not present substantial information to occurred 2 to 3 years ago (A. Warren, threat or resulting negative impacts to indicate that listing the bleached pers. comm. and B. Boyd pers. comm., this subspecies. The SNWA’s proposed sandhill skipper may be warranted due cited in WildEarth Guardians 2010, water development project is not to Factor B (overutilization for p. 15). Therefore, the petition asserts

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this subspecies may be vulnerable due The Steptoe Valley crescentspot occupied or suitable habitats. However, to limited distribution and small occurs at Warm Springs in Steptoe there is some information provided in population numbers (WildEarth Valley, White Pine County, Nevada the petition and in our files to suggest Guardians 2010, pp. 10–11, 40). (Austin 1998c, p. 577; Austin and Leary that water development may impact this 2008, p. 102). Austin (1993, pp. 8–9) subspecies due to overcommitment of Evaluation of Information Provided in the Petition and in Our Files found this subspecies in the moist flats groundwater in Steptoe Valley and this adjacent to the Duck Creek drainage in overcommitment’s potential for adverse The petition does not present detailed Steptoe Valley from Warm Springs to impacts to aquatic habitat. Since the information, nor do we have northwest of McGill. Specific locations Steptoe Valley crescentspot is information in our files, related to include along Duck Creek and near associated with moist flats near wetland population numbers, size, or trends for Bassett Lake (Austin 1993, p. 9; NNHPD areas, potential adverse impacts to the bleached sandhill skipper. The 2008). Occurrences have been reported aquatic habitat could result in adverse petition does not elaborate on when the at Monte Neva Hot Springs and near impacts to the butterfly’s habitat (e.g., apparent population decline occurred, McGill, White Pine County, Nevada drying of moist habitat and reduction in its magnitude, or reasons for it. The (NNHP 2006, p. 42). The NNHP (2009, larval or nectar plant abundance). petition does not indicate the size of p. 7) database indicates three Nevada Information in our files indicates that this site. A small area may be at higher occurrences, but the locations are not the Steptoe Valley hydrographic area risk of extinction than a large site. The identified. (#179) has been classified as a petition does not provide information Factor A: ‘‘Designated Groundwater Basin’’ by the on chance events or other threats to the NSE and that permitted groundwater subspecies and connect them to a Information Provided in the Petition rights exceed the estimated average restricted range or small population annual recharge; the perennial yield of size, or the potential for such chance The petition asserts that water development and climate change may Steptoe Valley is 70,000 afy (86,340,000 events to occur in occupied habitats in 3 impact the Steptoe Valley crescentspot m /year); however, approximately the future. In the absence of this 97,000 afy (119,600,000 m3/year) is information and connection, we do not (WildEarth Guardians 2010, pp. 36, 40). Information provided in the petition committed for use (NDWR 2010). When consider restricted geographic range or groundwater extraction exceeds aquifer small population numbers by indicates that the NNHP considers Monte Neva Hot Springs of ‘‘highest recharge, the result may be surface themselves to be threats to this water-level decline, spring drying, and subspecies. Also see the ‘‘Summary of conservation priority’’ (NNHP 2006, degradation or loss of aquatic habitat Common Threats’’ section for p. 11). The McGill site is considered a (Zektser et al. 2005, pp. 396–397). Our information pertaining to limited companion site associated with other files also include information indicating distribution and small population size higher priority conservation sites that habitat alterations, particularly as potential threats. However, due to the (NNHP 2006, p. 11). In 2007, the NNHP water table changes and overgrazing single known occupied location and included Steptoe Valley, with a number (Austin et al. 2000, p. 2), may impact reported decline in numbers, any other of wetland areas found within the the Steptoe Valley crescentspot; potential threat to the subspecies in Valley, in the list of the 26 highest however, this information is not addition to the possible threat due to priority wetlands in the State (NNHP specific. Austin (1993, pp. 9–10) water development could exacerbate 2007, p. 42). The moderate-to-high indicates that potential threats to the this situation. stressors impacting this valley’s wetland Therefore, based on the information areas include water diversion/ subspecies appear to be habitat provided in the petition and in our files, development, groundwater pumping, disturbance and destruction, such as we have determined that the petition agriculture, grazing, nonnative species overgrazing, trampling and clearing of does present substantial information to invasion, and energy development vegetation, water diversion, and indicate that listing the bleached (NNHP 2007, p. 42). The petition agricultural pollution; however, no sandhill skipper may be warranted due implies these activities may impact the specific supporting information is to other natural or manmade factors Steptoe Valley crescentspot. provided. We do not have specific affecting the subspecies’ continued Deacon (2009, p. 6), as referenced in supporting information in our files existence due to the reported decline of the petition, states that SNWA’s regarding the other potential impacts or its single known population. During our proposed groundwater development any resulting adverse impacts to Steptoe status review, we will further project could lower the water table by Valley crescentspot populations. Also investigate this potential threat. 700 ft (213.4 m) in several valleys, see the ‘‘Summary of Common Threats’’ including Steptoe Valley, adversely section for information pertaining to Steptoe Valley Crescentspot (Phyciodes impacting spring-fed habitats water development, agriculture, cocyta arenacolor) (WildEarth Guardians 2010, p. 36). livestock grazing, and climate change as We accept the characterization of the potential threats. Steptoe Valley crescentspot as a valid Evaluation of Information Provided in Therefore, based on our evaluation of subspecies based on its description by the Petition and Our Files the information in the petition and our Austin (1998c, p. 577) and recent The petition does not provide specific files, we have determined that the updated nomenclature (NatureServe supporting information to indicate that petition does present substantial 2009d, p. 1; A. Warren, pers. comm. the Steptoe Valley crescentspot is information to indicate that listing the cited in WildEarth Guardians 2010, impacted from livestock grazing, Steptoe Valley crescentspot may be p. 34). Adults are known to fly as one trampling and clearing of vegetation, warranted due to the present or brood (Austin 1993, p. 9) during early agricultural pollution, or climate threatened destruction, modification, or July to mid-August (Austin 1993, p. 9; change. The petition does not provide curtailment of its habitat or range Austin 1998c, p. 577). Aster ascendens specific supporting information resulting from water development. (long-leaved aster) has been regarding past, present, or future During our status review of this documented as a larval host plant conditions of these threats, or their subspecies, we will further investigate (Austin and Leary 2008, p. 102). scope, immediacy, or intensity at these and other potential threats.

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Factors B and C: Evaluation of Information Provided in will further investigate whether the Petition and in Our Files biological vulnerability is a threat to the Information Provided in the Petition We have determined that water Steptoe Valley crescentspot. The petition states that it is not development may be a threat to the White River Valley Skipper (Hesperia known whether overutilization, disease, Steptoe Valley crescentspot by uncas grandiosa) or predation is a threat to this adversely impacting its habitat, as We accept the characterization of the subspecies (WildEarth Guardians 2010, discussed in Factor A. Thus, we have White River Valley skipper as a valid p. 8). Austin (1998c, p. 577) indicates 39 determined that the petition does subspecies based on its description by males and 10 females were collected present substantial information to Austin and McGuire (1998, p. 778). The between 1981 and 1989, as referenced in indicate that listing the Steptoe Valley White River Valley skipper flies during the petition. crescentspot may be warranted due to June, July, and August (Austin and the inadequacy of existing regulatory McGuire 1998, p. 778; Austin et al. Evaluation of Information Provided in mechanisms pertaining to groundwater the Petition and Our Files 2000, p. 4). The apparent larval host permitting and the possible plant is Juncus mexicanus (Mexican The petition does not provide overcommitment of groundwater rush) (Austin and Leary 2008, p. 11). information that overutilization, resources in Steptoe Valley. Also see the The White River Valley skipper’s type disease, or predation has negatively ‘‘Summary of Common Threats’’ section locality is a narrow marshy area in the impacted the subspecies. While the for information pertaining to the White River channel located 1 mi (1.6 petition’s referenced material provides inadequacy of existing regulatory km) north of the Nye County boundary some information about known numbers mechanisms as a potential threat. in White Pine County, Nevada (Austin of collections, the petition does not During our status review for this and McGuire 1998, p. 778; NNHPD provide any information about the subspecies, we will further investigate 2008). Other areas where the subspecies population sizes or trends during this this and other potential threats and is known include alkaline Distichlis time period. Given the low number of whether existing regulatory mechanisms spicata flats in the White River Valley individuals collected over a 8-year time may be inadequate. from Sunnyside (Nye County) and from span, the length of time since these Factor E: Big Smokey Valley (northern Nye County) (Austin and McGuire 1998, collections were made, and the lack of Information Provided in the Petition information about the relative impact to p. 778). In 1998, Austin and McGuire the population, the petition does not The petition mentions limited range (1998, pp. 778–779) tentatively included and small population numbers as provide substantial information to populations from Spring Valley (White threats to this subspecies (WildEarth indicate that collection may be a threat Pine County) and Lake Valley (Lincoln Guardians 2010, pp. 10–11, 40). to the subspecies. We have no County), Nevada, in this subspecies. The NNHP database (2009, p. 7) information in our files related to Evaluation of Information Provided in indicates one occurrence in Nevada, but overutilization, disease, or predation for the Petition and in Our Files its location is not identified. The this subspecies. Also see the ‘‘Summary The petition does not present, nor do subspecies has been observed at Ruppes of Common Threats’’ section for we have specific information in our files Place/Boghole, White River Valley, information pertaining to related to, population numbers, sizes, or White Pine and Nye Counties (NNHP overutilization, disease, and predation trends for the Steptoe Valley 2006, p. 47). During a general terrestrial as potential threats. crescentspot. The petition does not invertebrate survey conducted in 2006 Based on our evaluation of the provide information on chance events or at 76 locations in eastern Nevada, a information provided in the petition other threats to the subspecies and single male was encountered east of and our files, we have determined that connect them to a possibly restricted Cleve Creek in Spring Valley (Ecological the petition does not present substantial range or small population numbers or Sciences, Inc. 2007, p. 28). This location information to indicate that listing the the potential for such threats to occur in is near other areas where the subspecies Steptoe Valley crescentspot may be occupied habitats in the future. Since has been previously documented, and is warranted due to Factor B this subspecies is distributed over more not considered to be a significant range (overutilization for commercial, than one population, its extinction extension (Ecological Sciences, Inc. recreational, scientific, or educational vulnerability due to stochastic events 2007, p. 28). purposes) or Factor C (disease or may be reduced. In the absence of this Factor A: predation). However, during our status information and connection, we do not Information Provided in the Petition review of this subspecies, we will consider small population numbers or further investigate whether these limited range by themselves to be The petition asserts that water potential threats are impacting the threats to this subspecies. Also see the development, land development, Steptoe Valley crescentspot. ‘‘Summary of Common Threats’’ section rechannelization of the White River, for information pertaining to limited overgrazing, and climate change may Factor D: distribution and small population size impact this subspecies (WildEarth Information Provided in the Petition as potential threats. Guardians 2010, pp. 38–40). The Based on the evaluation of the petition provides information that The petition asserts that existing information provided in the petition Ruppes Place/Boghole is considered of regulatory mechanisms are inadequate and our files, we have determined that ‘‘highest conservation priority’’ by the to protect this subspecies (WildEarth the petition does not present substantial NNHP (2006, p. 12). The NNHP also Guardians 2010, pp. 8, 40). The petition information to indicate that listing the identified sites in the upper and lower states that the BLM lists the Steptoe Steptoe Valley crescentspot may be White River Valley, including Ruppes Valley crescentspot as a sensitive warranted due to other natural or Place/Boghole, as ‘‘priority wetland species (BLM 2007a, p. J–7). This manmade factors affecting the species’ areas’’ (NNHP 2007, p. 26). Fifty percent designation can offer it some continued existence. However, during of the springs and brooks in the upper conservation consideration. our status review of this subspecies, we White River (which includes Ruppes

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Place/Boghole) have been eliminated, Valley hydrographic area (#180) (SNWA over a 5-year time span, the length of converted to other land uses, or 2008, p. 1–1) (NDWR 2010). There is time since these collections were made, degraded (NNHP 2007, p. 44). Fifty evidence for a hydrologic connection and the lack of information about the percent of the springs and brooks in the suggesting that groundwater may flow relative impact to the population, the lower White River (which includes between Cave Valley and White River petition does not provide substantial Sunnyside) have been converted to Valley (NDWR 2008, pp. 16–17). When information to indicate that collection other land uses or degraded (NNHP groundwater extraction exceeds aquifer may be a threat to the subspecies. We 2007, p. 44). recharge, it may result in surface water- have no information in our files related The petition also provides level decline, spring drying, and to overutilization, disease, or predation information that several wetland areas degradation or loss of aquatic habitat for this subspecies. Also see the in Big Smoky Valley are considered (Zektser et al. 2005, pp. 396–397). We ‘‘Summary of Common Threats’’ section high-priority wetlands by the NNHP have additional information in our files for information pertaining to (2007, p. 25). Wetlands, springs, and that indicates water diversions along the overutilization, disease, and predation brooks in Big Smoky Valley have been White River and other habitat as potential threats. eliminated, converted to other land disturbances may impact the White uses, or degraded by 60 percent (NNHP Based on our evaluation of the River Valley skipper (Austin et al. 2000, information provided in the petition 2007, p. 35). The moderate-to-high p. 4), though no specifics are provided. stressors impacting wetland areas in the and our files, we have determined that The petition does not provide, nor do the petition does not present substantial White River and Big Smoky Valleys we have in our files, specific, include water diversion/development, information to indicate that listing the supporting information to indicate that White River Valley skipper may be groundwater pumping, the White River Valley skipper is hydrogeomorphic modification, land warranted due to Factor B impacted from land development, (overutilization for commercial, development, agriculture, livestock rechannelization, livestock grazing, or grazing, mining, nonnative species, and recreational, scientific, or educational climate change in the White River and purposes) or Factor C (disease or energy development (NNHP 2007, Big Smokey Valleys. Also see the pp. 35, 44). The petition implies that predation). However, during our status ’’Summary of Common Threats’’ section review of this subspecies, we will these activities are negatively impacting for information pertaining to water the White River Valley skipper in the further investigate these potential development, agriculture, livestock threats. White River and Big Smokey Valleys. grazing, and climate change as potential Threats mentioned by other sources threats. Factor D: specifically in relation to this Based on our evaluation of the subspecies include overgrazing, information provided in the petition Information Provided in the Petition rechannelization of the White River, and and in our files, we have determined water table drawdown (NatureServe The petition asserts that existing that the petition does present regulatory mechanisms are inadequate 2009e, p. 2). substantial information to indicate that The proposed SNWA groundwater to protect this subspecies (WildEarth listing of the White River Valley skipper development project is predicted to Guardians 2010, pp. 8, 40). The BLM may be warranted due to the present or reduce flow to springs in southern lists this subspecies as a sensitive threatened destruction, modification, or White River Valley by 50 percent in 15 species (BLM 2007a, p. J–37) which can curtailment of its habitat or range years (Deacon 2007, p. 1), as referenced offer it some conservation resulting from water development in the petition. This reduction could consideration. which may negatively impact its larval impact Juncus mexicanus, the apparent Evaluation of Information Provided in host plant for the White River Valley host plant. During our status review for the Petition and in Our Files skipper, and which grows in moist this subspecies, we will further habitats (Austin and Leary 2008, p. 11; investigate these and other potential threats. We have determined that water WildEarth Guardians 2010, p. 39). development may be a threat to the Factors B and C: Evaluation of Information Provided in White River Valley skipper by adversely the Petition and Our Files Information Provided in the Petition impacting its habitat as discussed in Factor A. Thus, we have determined Information provided in the petition The petition states that it is not that the petition and our files do present and available in our files suggests that known whether overutilization, disease, substantial information to indicate that overcommitment of groundwater could or predation is a threat to this listing the White River Valley skipper result in adverse impacts to aquatic subspecies. According to Austin and may be warranted due to the inadequacy habitats and thus impact the White McGuire (1998, p. 778), 20 males and 14 of existing regulatory mechanisms as River Valley skipper, especially its females were collected between 1984 they pertain to groundwater permitting apparent larval host plant, Juncus and 1989, as referenced in the petition. and the possible overcommitment of mexicanus, a plant usually found in groundwater resources in White River wetlands (Reed 1988, pp. 8, 10). We Evaluation of Information Provided in Valley. Also see the ‘‘Summary of have information in our files that the the Petition and Available in Our Files Common Threats’’ section for perennial yield of the White River The petition does not provide information pertaining to the hydrographic area (#207) is 37,000 afy information that overutilization, inadequacy of existing regulatory (45,640,000 m3/year), and there are disease, or predation has negatively mechanisms as a potential threat. 31,699 afy (39,100,000 m3/year) impacted the subspecies. While the During our status review for this committed (NDWR 2010); thus, petition’s referenced material provides subspecies, we will further investigate permitted groundwater rights are information about known numbers of this and other potential threats to approaching but do not exceed the collections, it does not provide any determine whether existing regulatory estimated average annual recharge. information about the population sizes mechanisms may be inadequate. However, SNWA is proposing to or trends during this time period. Given withdraw groundwater from the Cave the low number of individuals collected Factor E:

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Information Provided in the Petition have determined that for 6 of the 10 River Valley skipper may warrant listing The petition indicates this subspecies subspecies (Carson Valley silverspot, due to threats under Factors B, C, and may be vulnerable to small population Carson Valley wood nymph, Mattoni’s E currently, or in the future. numbers (WildEarth Guardians 2010, blue butterfly, Mono Basin skipper, and Because we found that the petition p. 40). Austin (1985, pp. 125–126) two Railroad Valley skippers—H. u. presents substantial information indicates Hesperia uncas spp. appear to fulvapalla and H. u. reeseorum) the indicating that listing 4 of the 10 Great be restricted to the valleys where they petition does not present substantial Basin butterflies may be warranted, we occur. The petition suggests that scientific or commercial information are initiating a status review to isolated populations of the White River indicating that listing throughout their determine whether listing these 4 Valley skipper are probably unable to entire range may be warranted. subspecies under the Act is warranted. disperse or interconnect with other On the basis of our determination under section 4(b)(3)(A) of the Act, we The ‘‘substantial information’’ populations (WildEarth Guardians 2010, standard for a 90-day finding differs p. 38). have determined that for 4 of the 10 Great Basin butterflies (Baking Powder from the Act’s ‘‘best scientific and Evaluation of Information Provided in Flat blue butterfly, bleached sandhill commercial data’’ standard that applies the Petition and in Our Files skipper, Steptoe Valley crescentspot, to a status review to determine whether a petitioned action is warranted. A 90- The petition does not present, nor do and White River Valley skipper) the day finding does not constitute a status we have specific information in our petition presents substantial scientific review under the Act. In a 12-month files, related to population sizes, or commercial information indicating finding, we will determine whether a numbers, or trends for the White River that listing throughout their entire range petitioned action is warranted after we Valley skipper. The petition does not may be warranted. have completed a thorough status provide information on chance events or The petition presents substantial review of the species, which is other threats to the subspecies and information indicating that the Baking conducted following a substantial 90- connect them to small population Powder Flat blue butterfly may warrant numbers or restricted range or the listing due to threats under Factors A day finding. Because the Act’s standards potential for such threats to occur in and D. The petition does not present for 90-day and 12-month findings are occupied habitats in the future. Since substantial information indicating that different, as described above, a this subspecies is distributed over more the Baking Powder Flat blue butterfly substantial 90-day finding does not than one population, its extinction may warrant listing due to current or mean that the 12-month finding will vulnerability due to stochastic events future threats under Factors B, C, and E. result in a warranted finding. may be reduced. In the absence of this The petition presents substantial References Cited information and connection, we do not information indicating that the bleached consider small population numbers or sandhill skipper may warrant listing A complete list of references cited is restricted range by themselves to be due to threats under Factors A, D, and available on the Internet at http:// threats to this subspecies. Also see the E. The petition does not present www.regulations.gov and upon request ‘‘Summary of Common Threats’’ section substantial information indicating that from the Nevada Fish and Wildlife for information pertaining to limited the bleached sandhill skipper may Office (see FOR FURTHER INFORMATION distribution and small population size warrant listing due to threats under CONTACT). Factors B and C currently, or in the as potential threats. Authors Based on evaluation of the future. information provided in the petition The petition presents substantial The primary authors of this notice are and our files, we have determined that information indicating that the Steptoe the staff members of the Nevada and the petition does not present substantial Valley crescentspot may warrant listing Ventura Fish and Wildlife Offices (see information to indicate that listing the due to threats under Factors A and D. FOR FURTHER INFORMATION CONTACT). White River Valley skipper may be The petition does not present warranted due to other natural or substantial information indicating that Authority manmade factors affecting the species’ the Steptoe Valley crescentspot may The authority for this action is the continued existence. However, during warrant listing due to threats under Endangered Species Act of 1973, as our status review for this subspecies, we Factors B, C, and E currently, or in the amended (16 U.S.C. 1531 et seq.). will further investigate whether future. Dated: September 20, 2011. biological vulnerability is a threat to this The petition presents substantial subspecies. information indicating that the White Gregory E. Siekaniec, River Valley skipper warrant listing due Acting Director, U.S. Fish and Wildlife Finding to threats under Factors A and D. The Service. On the basis of our determination petition does not present substantial [FR Doc. 2011–25324 Filed 10–3–11; 8:45 am] under section 4(b)(3)(A) of the Act, we information indicating that the White BILLING CODE 4310–55–P

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