4–13–10 Tuesday Vol. 75 No. 70 Apr. 13, 2010
Pages 18747–19180
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Contents Federal Register Vol. 75, No. 70
Tuesday, April 13, 2010
Agriculture Department See International Trade Administration See Forest Service See National Institute of Standards and Technology NOTICES Alcohol, Tobacco, Firearms, and Explosives Bureau Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 18783 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Commodity Futures Trading Commission Advanced Explosives Destruction Techniques Training NOTICES Course Follow-up Evaluation Form, 18884–18885 Agency Information Collection Activities; Proposals, Interstate Firearms Shipment Report of Theft/Loss, Submissions, and Approvals: 18885–18886 Stocks of Grain in Licensed Warehouses, 18824 Police Check Inquiry, 18885 Requisition for Forms or Publications and Requisition for Firearms/Explosives Forms, 18886 Defense Department RULES Architectural and Transportation Barriers Compliance Federal Acquisition Regulation: Board FAR Case 2009–005, Use of Project Labor Agreements for Federal Construction Projects, 19168–19179 PROPOSED RULES Federal Acquisition Circular 2005–41; Introduction, Americans with Disabilities Act Accessibility Guidelines 19168 for Buildings and Facilities: Federal Acquisition Circular 2005–41; Small Entity Telecommunications Act Accessibility Guidelines; Compliance Guide, 19179–19180 Electronic and Information Technology Accessibility NOTICES Standards, 18781–18782 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Arts and Humanities, National Foundation American Recovery and Reinvestment Act; One Time See National Foundation on the Arts and the Humanities Reporting, Compensation Requirements, 18835– 18836 Centers for Disease Control and Prevention Meetings: NOTICES Department of Defense Historical Advisory Committee, Agency Information Collection Activities; Proposals, 18824 Submissions, and Approvals, 18846 U.S. Strategic Command Strategic Advisory Group, Meetings: 18824–18825 Disease, Disability, and Injury Prevention and Control Special Emphasis Panel, 18848–18849 Energy Department Children and Families Administration See Federal Energy Regulatory Commission NOTICES NOTICES Intent to Grant Exclusive Patent License: Agency Information Collection Activities; Proposals, Advantage Electronic Product Development Incorporated/ Submissions, and Approvals: Utility Crew Safety LLC, 18825 ADP & Services Conditions for FFP for ACF, 18847– Inventions Available for License, 18826 18848 Strengthening Communities Fund Program Evaluation, 18846–18847 Environmental Protection Agency RULES Coast Guard Approval and Promulgation of Air Quality Implementation RULES Plans: Security Zone: Indiana; Alternate Monitoring Requirements for Calcasieu River and Ship Channel, LA, 18755–18757 Indianapolis Power and Light – Harding Street PROPOSED RULES Station, 18757–18760 Regulated Navigation Area: PROPOSED RULES Galveston Channel, TX, 18776–18778 Approval and Promulgation of Air Quality Implementation Safety Zone: Plans: Ocean City Air Show 2010, Atlantic Ocean, Ocean City, Indiana; Alternate Monitoring Requirements for MD, 18778–18781 Indianapolis Power and Light – Harding Street NOTICES Station, 18782 Imposition of Conditions of Entry for Certain Vessels NOTICES Arriving to United States from Democratic Republic of Agency Information Collection Activities; Proposals, Sao Tome and Principe, 18871–18872 Submissions, and Approvals: NSPS for Nitric Acid Plants, 18830–18831 Commerce Department Public Teleconference: See Foreign-Trade Zones Board National Environmental Justice Advisory Council, 18831
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Equal Employment Opportunity Commission Federal Transit Administration NOTICES NOTICES Agency Information Collection Activities; Proposals, FY 2010 Discretionary Sustainability Funding Opportunity: Submissions, and Approvals, 18832–18833 Transit Investments for Greenhouse Gas and Energy Reduction Program and Clean Fuels Grant Program, Executive Office of the President etc., 18942–18952 See Presidential Documents Fish and Wildlife Service Federal Aviation Administration RULES PROPOSED RULES Endangered and Threatened Wildlife and Plants: Airworthiness Directives: Determination of Endangered Status for 48 Species on McCauley Propeller Systems Model 4HFR34C653/L106FA Kauai and Designation of Critical Habitat, 18960– Propellers, 18774–18776 19165 NOTICES Migratory Bird Subsistence Harvest in Alaska: Agency Information Collection Activities; Proposals, Harvest Regulations for Migratory Birds in Alaska During Submissions, and Approvals: 2010 Season, 18764–18773 Air Taxi and Commercial Operator Airport Activity PROPOSED RULES Survey, 18940 Endangered and Threatened Wildlife and Plants: Certification; Pilots and Flight Instructors, 18940–18941 90-Day Finding on a Petitiont to list Thorne’s Hairstreak Notice of Proposed Construction or Alteration, Notice of Butterfly as Endangered; Correction, 18782 Actual Construction or Alteration, Project Status Report, 18941 Food and Drug Administration RULES Federal Bureau of Investigation Prevention of Salmonella Enteritidis in Shell Eggs During NOTICES Production, Storage, and Transportation, etc.; Technical FBI Criminal Justice Information Services Division User Amendment, 18751 Fees, 18887 NOTICES Meetings: International Conference on Harmonisation Steering Federal Communications Commission Committee and Expert Working Group, 18848 NOTICES Public Workshop: Agency Information Collection Activities; Proposals, Computer Methods for Cardiovascular Devices; Submissions, and Approvals, 18833–18834 Integration of Nonclinical and Clinical Models, 18849 Federal Deposit Insurance Corporation Small Entity Compliance Guide: NOTICES Prevention of Salmonella Enteritidis in Shell Eggs During Meetings; Sunshine Act, 18834 Production, Storage, and Transportation; Availability, 18849–18850 Federal Energy Regulatory Commission NOTICES Foreign-Trade Zones Board Applications: NOTICES FPL Energy Maine Hydro LLC, et al., 18826–18827 Grant of Authority for Subzone Status: Howard Rosenfeld, 18826 The Swatch Group (U.S.) Inc. (Watch and Jewelry Combined Notice of Filings, 18827–18828 Warehousing and Distribution); Secaucus, NJ, 18787 Complaints: PSEG Power Connecticut LLC v. ISO New England, Forest Service 18828–18829 NOTICES Wisconsin Electric Power Co. et al. v. ANR Pipeline Co., Environmental Impact Statements; Availability, etc.: 18828 Proposed Dairy Syncline Mine and Reclamation Plan, Environmental Assessments, Availability, etc.: Caribou County, ID, 18875–18877 East Cheyenne Gas Storage, LLC, 18829–18830 Transfer of Land to the Department of Interior, 18783
Federal Highway Administration General Services Administration NOTICES RULES Environmental Impact Statements; Availability, etc.: Federal Acquisition Regulation: Bexar County, TX, 18941–18942 FAR Case 2009–005, Use of Project Labor Agreements for Federal Construction Projects, 19168–19179 Federal Reserve System Federal Acquisition Circular 2005–41; Introduction, NOTICES 19168 Formations of, Acquisitions by, and Mergers of Bank Federal Acquisition Circular 2005–41; Small Entity Holding Companies, 18834–18835 Compliance Guide, 19179–19180 Formations of, Acquisitions by, and Mergers of Bank NOTICES Holding Companies; Correction, 18835 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Federal Retirement Thrift Investment Board American Recovery and Reinvestment Act; One Time NOTICES Reporting, Compensation Requirements, 18835– Meetings; Sunshine Act, 18835 18836
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Health and Human Services Department Taxpayer Advocacy Panel Small Business/Self Employed See Centers for Disease Control and Prevention Project Committee, 18957–18958 See Children and Families Administration Taxpayer Advocacy Panel Tax Forms and Publications/ See Food and Drug Administration MLI Project Committee, 18955–18956 RULES Taxpayer Advocacy Panel Taxpayer Assistance Center Organizational Integrity of Entities Implementing Programs Committee, 18958 and Activities under the Leadership Act, 18760–18764 Taxpayer Advocacy Panel Volunteer Income Tax NOTICES Assistance Issue Committee, 18955 Findings of Research Misconduct, 18836–18837 Privacy Act; Systems of Records, 18837–18846 International Trade Administration NOTICES Homeland Security Department Applications: See Coast Guard Middle East Public Health Mission; Deadline Extended, See U.S. Citizenship and Immigration Services 18783–18784 NOTICES Preliminary Results and Rescission, in Part, of Agency Information Collection Activities; Proposals, Antidumping Duty Administrative Review: Submissions, and Approvals: Circular Welded Carbon Steel Pipes and Tubes from Chemical Facility Anti-Terrorism Standards Personnel Thailand, 18788–18794 Surety Program, 18850–18857 Preliminary Results of Antidumping Duty Administrative Privacy Act; Systems of Records, 18857–18871 Review and Notice of Intent Not to Revoke Antidumping Duty Order in Part: Housing and Urban Development Department Certain Orange Juice from Brazil, 18794–18800 NOTICES Preliminary Results of Antidumping Duty Administrative Agency Information Collection Activities; Proposals, Review: Submissions, and Approvals: Brass Sheet and Strip from Germany, 18801–18806 Ginnie Mae Multiclass Securities Program Documents, Preliminary Results of the 13th (2008) Countervailing Duty 18872–18873 Administrative Review: Youthbuild Program, 18873–18874 Certain Pasta from Italy, 18806–18811 Funding Availability: Preliminary Results of the 2008–2009 Administrative Fiscal Year 2009 Rental Assistance for Non-Elderly Review: Persons with Disabilities, 18874 Certain Tissue Paper Products from the People’s Republic Meetings: of China, 18812–18819 Manufactured Housing Consensus Committee, 18874– 18875 International Trade Commission NOTICES Interior Department Investigations: See Fish and Wildlife Service Certain Footwear; Recommendations for Modifying the See Land Management Bureau Harmonized Tariff Schedule, 18882–18884 Meetings; Sunshine Act, 18884 Internal Revenue Service NOTICES Justice Department Agency Information Collection Activities; Proposals, See Alcohol, Tobacco, Firearms, and Explosives Bureau Submissions, and Approvals, 18953–18954 See Federal Bureau of Investigation Meetings: RULES Area 1 Taxpayer Advocacy Panel (New York, FBI Criminal Justice Information Services Division User Connecticut, Massachusetts, Rhode Island, New Fees, 18751–18755 Hampshire, Vermont and Maine), 18955 Labor Department Area 2 Taxpayer Advocacy Panel (Delaware, North See Mine Safety and Health Administration Carolina, South Carolina, New Jersey, Maryland, See Workers Compensation Programs Office Pennsylvania, et al.), 18957 Area 3 Taxpayer Advocacy Panel (Florida, Georgia, Land Management Bureau Alabama, Mississippi, Louisiana, Arkansas, and NOTICES Puerto Rico), 18957 Environmental Impact Statements; Availability, etc.: Area 5 Taxpayer Advocacy Panel (Iowa, Kansas, Proposed Dairy Syncline Mine and Reclamation Plan, Minnesota, Missouri, Nebraska, Oklahoma, and Caribou County, ID, 18875–18877 Texas), 18954–18955 Exploration for Coal in Utah License Application, 18877 Area 6 Taxpayer Advocacy Panel (Arizona, Colorado, Final Supplementary Rules for Public Lands in Colorado: Idaho, Montana, New Mexico, North Dakota, Oregon, Gunnison Gorge National Conservation Area and South Dakota, et al.), 18956 Adjacent Public Lands, etc.; Montrose and Delta Area 7 Taxpayer Advocacy Panel (Alaska, California, Counties, CO, 18877–18881 Hawaii, and Nevada), 18956 Realty Action: Taxpayer Advocacy Panel (Illinois, Indiana, Kentucky, Proposed Sale of Public Land in Caribou County, ID, Michigan, Ohio, Tennessee, and Wisconsin), 18956 18881–18882 Taxpayer Advocacy Panel Earned Income Tax Credit Project Committee, 18955 Millennium Challenge Corporation Taxpayer Advocacy Panel Joint Committee, 18958 NOTICES Taxpayer Advocacy Panel Notice Improvement Issue Quarterly Report (October 1, 2009– December 31, 2009), Committee, 18957 18889–18906
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Mine Safety and Health Administration Securities and Exchange Commission NOTICES NOTICES Agency Information Collection Activities; Proposals, Applications: Submissions, and Approvals: Jackson National Life Insurance Company, et al., 18908– Mine Rescue Teams and Arrangements for Emergency 18915 Medical Assistance and Transportation for Injured Proposed Plan for Allocation of Regulatory Responsibilities Persons at Coal Mines, 18888–18889 Between EDGA Exchange, Inc. and Financial Industry Regulatory Authority, Inc., 18915–18920 National Aeronautics and Space Administration Proposed Plan for Allocation of Regulatory Responsibilities RULES Between EDGX Exchange, Inc. and Financial Industry Federal Acquisition Regulation: Regulatory Authority, Inc., 18920–18925 FAR Case 2009–005, Use of Project Labor Agreements for Proposed Plan for Allocation of Regulatory Responsibilities Federal Construction Projects, 19168–19179 Between International Securities Exchange, LLC and Federal Acquisition Circular 2005–41; Introduction, Financial Industry Regulatory Authority, Inc., 18925– 19168 18929 Federal Acquisition Circular 2005–41; Small Entity Self-Regulatory Organizations; Proposed Rule Changes: Compliance Guide, 19179–19180 Chicago Board Options Exchange, Inc., 18931–18932, NOTICES 18934–18935 Agency Information Collection Activities; Proposals, NASDAQ Stock Market LLC, 18932–18934 Submissions, and Approvals: New York Stock Exchange LLC, 18929–18931 American Recovery and Reinvestment Act; One Time NYSE Amex LLC, 18935–18937 Reporting, Compensation Requirements, 18835– 18836 State Department NOTICES National Foundation on the Arts and the Humanities Bureau of Political–Military Affairs; Directorate of Defense NOTICES Trade Controls: Meetings: Notifications to Congress of Proposed Commercial Export Humanities Panel, 18906–18907 Licenses, 18937–18940 Committee Renewal: Advisory Committee on International Communications National Highway Traffic Safety Administration and Information Policy, 18940 NOTICES Receipt of Petition for Decision of Inconsequential Noncompliance: Transportation Department Graco Children’s Products Inc., 18952–18953 See Federal Aviation Administration See Federal Highway Administration See Federal Transit Administration National Institute of Standards and Technology See National Highway Traffic Safety Administration NOTICES FY 2010 NIST Center for Neutron Research Comprehensive Treasury Department Grants Program, 18784–18787 See Internal Revenue Service Meetings: Advisory Committee on Earthquake Hazards Reduction, 18787–18788 U.S. Citizenship and Immigration Services Malcolm Baldrige National Quality Award Panel of NOTICES Judges, 18788 Agency Information Collection Activities; Proposals, Malcolm Baldrige National Quality Award Panel of Submissions, and Approvals: Judges and Board of Overseers, 18788 Application for Citizenship and Issuance of Certificate Second Draft NIST Interagency Report: under Section (322), 18871 Smart Grid Cyber Security Strategy and Requirements; Request for Comments, 18819–18823 Workers Compensation Programs Office NOTICES Agency Information Collection Activities; Proposals, Nuclear Regulatory Commission Submissions, and Approvals, 18887–18888 NOTICES Meetings; Sunshine Act, 18907 Proposed Model Safety Evaluation for Plant Specific Adoption of Technical Specifications Task Force Separate Parts In This Issue Traveler TSTF–514: Revise BWR Operability Requirements and Actions for Part II RCS Leakage Instrumentation, 18907–18908 Interior Department, Fish and Wildlife Service, 18960– 19165 Presidential Documents PROCLAMATIONS Part III Special Observances: Defense Department, 19168–19180 Greek Independence Day: A National Day of Celebration General Services Administration, 19168–19180 of Greek and American Democracy (Proc. 8485); National Aeronautics and Space Administration, 19168– Correction, 18747 19180 National D.A.R.E. Day (Proc. 8494), 18749–18750
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Reader Aids To subscribe to the Federal Register Table of Contents Consult the Reader Aids section at the end of this page for LISTSERV electronic mailing list, go to http:// phone numbers, online resources, finding aids, reminders, listserv.access.gpo.gov and select Online mailing list and notice of recently enacted public laws. archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
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CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.
3 CFR Proclamations: 8485...... 18747 8494...... 18749 14 CFR Proposed Rules: 39...... 18774 21 CFR 118...... 18751 28 CFR 20...... 18751 33 CFR 165...... 18755 Proposed Rules: 165 (2 documents) ...... 18776, 18778 36 CFR Proposed Rules: 1191...... 18781 1193...... 18781 1194...... 18781 40 CFR 52...... 18757 Proposed Rules: 52...... 18782 45 CFR 89...... 18760 48 CFR Ch. 1 (2 documents) ...... 19168, 19179 2...... 19168 7...... 19168 17...... 19168 22...... 19168 52...... 19168 50 CFR 17...... 18782 92...... 18764 Proposed Rules: 17...... 18960
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Federal Register Presidential Documents Vol. 75, No. 70
Tuesday, April 13, 2010
Title 3— Proclamation 8485 of March 24, 2010—Greek Independence Day: A Na- tional Day of Celebration of Greek and American Democracy, 2010 The President Correction
In Presidential document 2010–7240 beginning on page 15601 in the issue of Tuesday, March 30, 2010, make the following correction: On page 15601, the first line of the heading should read ‘‘Proclamation 8485 of March 24, 2010’’. Also on page 15601, the second line of the heading should read ‘‘Greek Independence Day: A National Day of Celebration of Greek and American Democracy, 2010’’.
[FR Doc. C1–2010–7240 Filed 4–12–10; 8:45 am] Billing Code 1505–01–D
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Proclamation 8494 of April 8, 2010
National D.A.R.E. Day, 2010
By the President of the United States of America
A Proclamation Every day, young Americans face pressures to engage in violent activities, drug use, and other harmful behavior. Today, we reaffirm our commitment to empowering our children to resist violence and substance abuse. Drug dependence affects individuals from all backgrounds, and its debili- tating effects often go unaddressed. Too many of our families are afflicted by addiction, and too many lives are ruined by its harmful impact. Drug abuse is not an isolated crime, and communities experience the tragic results when drug-related violence and gang activity reach our neighborhoods. It takes parents, guardians, educators, clergy, law enforcement officers, and other mentors to demonstrate that a healthy and drug-free lifestyle can build a strong foundation for future success. Families must be vigilant in recognizing and addressing the warning signs of drug and alcohol abuse. From prescriptions and over-the-counter medica- tions to chemical inhalants, many substances can be harmful if abused, and preventing our children from doing so is vital. I urge friends and loved ones to be role-models and to discuss the consequences of drug use with the young people in their lives. Community-based prevention and treatment programs can provide young Americans with mentors and reinforce positive behavior. Through the Drug Abuse Resistance Education (D.A.R.E.) program, law enforcement personnel contribute their expertise to help teach America’s youth to resist peer pres- sure, and to abstain from drugs, gangs, and violence. We all have a responsi- bility to join these professionals in enabling youth to choose alternatives to violence and dangerous behavior and to lead the next generation of Americans toward a brighter future. NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 8, 2010, as National D.A.R.E. Day. I call upon all Americans to observe this day with appropriate programs and activities.
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IN WITNESS WHEREOF, I have hereunto set my hand this eighth day of April, in the year of our Lord two thousand ten, and of the Independence of the United States of America the two hundred and thirty-fourth.
[FR Doc. 2010–8557 Filed 4–12–10; 8:45 am] Billing code 3195–W0–P
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Rules and Regulations Federal Register Vol. 75, No. 70
Tuesday, April 13, 2010
This section of the FEDERAL REGISTER Procedure Act (5 U.S.C. 553). Notice DEPARTMENT OF JUSTICE contains regulatory documents having general and public procedures are unnecessary applicability and legal effect, most of which because FDA is merely updating 28 CFR Part 20 are keyed to and codified in the Code of nonsubstantive content. Federal Regulations, which is published under [Docket No. FBI 114] 50 titles pursuant to 44 U.S.C. 1510. List of Subjects in 21 CFR Part 118 RIN 1110–AA26 The Code of Federal Regulations is sold by Eggs and egg products, Incorporation FBI Criminal Justice Information the Superintendent of Documents. Prices of by reference, Recordkeeping Services Division User Fees new books are listed in the first FEDERAL requirements, Safety. REGISTER issue of each week. AGENCY: Federal Bureau of Investigation ■ Therefore, under the Federal Food, (FBI), Justice. Drug, and Cosmetic Act and under ACTION: Final rule. DEPARTMENT OF HEALTH AND authority delegated to the Commissioner HUMAN SERVICES of Food and Drugs, 21 CFR part 118 is SUMMARY: This Final Rule sets out the amended as follows: Director of the FBI’s authority to Food and Drug Administration establish and collect fees for providing PART 118—PRODUCTION, STORAGE, fingerprint-based and name-based 21 CFR Part 118 AND TRANSPORTATION OF SHELL Criminal History Record Information [Docket No. FDA–2000–N–0190] EGGS (CHRI) checks and other identification services submitted by authorized users Prevention of Salmonella Enteritidis in for noncriminal justice purposes, ■ 1. The authority citation for 21 CFR Shell Eggs During Production, including employment and licensing. part 118 continues to read as follows: Storage, and Transportation; Change The FBI may set such fees at a level to of Registration Date, Address, and Authority: 21 U.S.C. 321, 331–334, 342, include an amount to establish a fund Telephone Number; Technical 371, 381, 393; 42 U.S.C. 243, 264, 271. to defray expenses for the automation of fingerprint identification and criminal Amendment ■ 2. In § 118.11, revise paragraphs (a), justice information services and AGENCY: Food and Drug Administration, (b)(2)(i), and (b)(3)(vi) to read as follows: associated costs. It further provides that HHS. § 118.11 Registration requirements for future fee adjustments will be made by ACTION: Final rule; technical shell egg producers covered by the notice published in the Federal amendment. requirements of this part. Register. SUMMARY: The Food and Drug (a) Shell egg producers covered under DATES: This final rule is effective May Administration (FDA) is amending its § 118.1(a) are required to register their 13, 2010. regulations to correct the date by which farms with FDA within 30 days of FOR FURTHER INFORMATION CONTACT: FBI producers must register their farm with becoming an egg producer or, if already Criminal Justice Information Services FDA, reflect a change in the address and an egg producer, by each farm’s Division, 1000 Custer Hollow Road, Module E–3, Clarksburg, West Virginia telephone number for requesting copies applicable compliance date. of Form No. 3733, and reflect a change 26306, Attention: Christopher L. (b) * * * in the address to which producers must Enourato. send their CD–ROM. This action is (2) * * * SUPPLEMENTARY INFORMATION: editorial in nature and is intended to (i) You must register using FDA Form I. Background improve the accuracy of the agency’s No. 3733. You may obtain a copy of this regulations. form by writing to the U.S. Food and On June 19, 2008, the FBI published a Notice of Proposed Rulemaking DATES: Drug Administration, 5600 Fishers Lane Effective on April 13, 2010. (NPRM) setting forth the FBI’s statutory (HFS–681), Rockville, MD 20857, or by FOR FURTHER INFORMATION CONTACT: John authority to establish and collect fees for Sheehan, Center for Food Safety and requesting the form by phone at 1–800– noncriminal justice fingerprint-based Applied Nutrition (HFS–315), Food and 216–7331 or 301–575–0156. and name-based CHRI checks and other Drug Administration, 5100 Paint Branch * * * * * identification services performed by the Pkwy., College Park, MD 20740, 301– (3) * * * CJIS Division. See 73 FR 34905 (2008) 436–1488. (to be codified at 28 CFR part 20). SUPPLEMENTARY INFORMATION: FDA is (vi) You must mail the CD–ROM to The NPRM explained the amending its regulations in 21 CFR part the U.S. Food and Drug Administration, methodology used to calculate the FBI’s 118 to correct the following information: 5600 Fishers Lane (HFS–681), Rockville, revised fees, provided a proposed fee (1) The date by which egg producers MD 20857. schedule, and advised that the current must register their farm with FDA, (2) * * * * * fees would be published concurrently the address and telephone number for Dated: April 7, 2010. with this Final Rule as a Notice in the requesting copies of Form 3733, and (3) Federal Register. This Final Rule the address to which egg producers Leslie Kux, implements the FBI’s statutory fee must send their CD–ROM. Publication Acting Assistant Commissioner for Policy. authority. All future fee adjustments of this document constitutes final action [FR Doc. 2010–8358 Filed 4–12–10; 8:45 am] will be made by Notice published in the on this change under the Administrative BILLING CODE 4160–01–S Federal Register.
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II. Legal Authority To Collect Fees Congress, in the Volunteers for methodology in six steps for the non- The FBI has collected user fees for Children Act (VCA), 42 U.S.C. 5119a, automation portion of the fee. fingerprint-based CHRI checks since limited the fee that can be charged to a 1. Operational labor costs were 1982, when the authority to establish volunteer to $18, or the actual cost of reviewed and assigned to activities and and collect fees to process fingerprint- providing the service, whichever is less. then to services. based CHRI checks for noncriminal The statutory term ‘‘actual cost’’ does not appear in OMB Circular A–25, which 2. Support labor costs were reviewed justice purposes, such as employment and assigned to activities and then to and licensing, was set out in Public Law uses the term full cost, defined as all services. (Pub. L.) 97–257. This statutory direct and indirect costs of providing a authority was renewed annually by service. Thus, the FBI defined the actual 3. Nonlabor costs, including subsequent appropriations legislation. cost as the full cost of providing this unfunded personnel and judgment fund Under Public Law 101–162, the FBI was service, when calculating the fee for costs, were reviewed and assigned to also authorized to establish and collect checks of volunteers under the VCA. activities and then to services. fees for name-based checks and to set Methodology Used To Calculate the 4. Cost estimates were made for FY the fees at a level to include an amount User Fees 2008, when the revised user fees are to defray expenses for the automation of expected to be implemented. fingerprint identification and associated The FBI hired a contractor, costs. Congress, in Public Law 101–515, BearingPoint, Inc., 1676 International 5. Transaction volumes and trends subsequently authorized the FBI to Drive, McLean, Virginia 22102 were analyzed to predict appropriate establish and collect these fees on a (BearingPoint), to conduct an transaction volumes for FY 2008. continuing basis. This authority was independent analysis of pertinent costs 6. Finally, using the projected FY further expanded by Public Law 104–99 and to recommend a revised fee 2008 costs and the projected FY 2008 with insertion of the term ‘‘criminal schedule for the fingerprint-based and transaction volumes, the projected unit justice information services’’ so the FBI name-based CHRI checks conducted by costs for each service were calculated. was authorized to use the collected fees the CJIS Division. Referencing OMB The recommended user fees were based to ‘‘defray expenses for the automation Circular A–25; the Statement of Federal on these projected unit costs. of fingerprint identification and Financial Accounting Standards As explained above, under Public criminal justice information services (SFFAS–4): Managerial Cost Accounting Law 101–515, the FBI is also authorized and associated costs.’’ Concepts and Standards for the Federal to charge an additional amount for the Government; and other relevant III. Fee Calculation automation of fingerprint identification financial management directives, and criminal justice information Standards and Guidelines Used To BearingPoint developed a cost services and associated costs. A similar Calculate the Fees accounting methodology and related process was used to develop this cost models based upon the concepts Public Law 101–515 links the user portion of the fee. It was determined and principles of activity-based costing fees charged for processing fingerprint that the most appropriate basis for the (ABC). identification records and name checks calculation of this portion of the fee was to the cost of providing these services. ABC is a business management the capital investment and anticipated This authority also permits the FBI to process that provides information about depreciation costs for automated establish user fees at a level to include the relationships between inputs (costs) fingerprint identification and other an amount ‘‘to defray expenses for the and outputs (products or services) by criminal justice information service automation of fingerprint identification quantifying how work is performed capabilities and enhancements to and criminal justice information (activities). The ABC model used to certain automated systems. The costs for services and associated costs.’’ calculate the user fees was developed these automation efforts were obtained In the absence of express statutory using commercially available ABC from the FBI’s asset management and authority, Federal agencies are software and followed generally financial management systems and authorized to establish fees by the accepted cost accounting procedures for records, and program planning Independent Offices Appropriation Act cost assignment and unit cost documentation. By employing this of 1952, 31 U.S.C. 9701, which is calculation. Organizational resources methodology, users paying the fee will implemented by specific guidelines in were assigned to activities, and then the pay for services based on the cost of the Office of Management and Budget activities were assigned to services automation which is already in place at (OMB) Circular A–25. Since the FBI has based upon reported patterns of the time their request is processed. specific statutory authority to establish consumption. BearingPoint identified While the funds collected will be used and collect fees under Public Law 101– the total resources associated with the to develop future capabilities, the cost 515, the FBI is not required to follow fingerprint-based and name-based CHRI strictly the mandates of OMB Circular check services and assigned these costs basis of the fee will be the automation A–25. In establishing the fees set out in to the services using relevant cost in place. The projected FY 2008 this rule, the FBI referred to OMB drivers. The cost drivers were selected volumes were then used to calculate the Circular A–25 for guidance in primarily for their strong cause-effect unit costs for this portion of the fee. calculating fees based on costs. For linkages between the resources and the Once the unit costs were calculated, example, in calculating the fees, OMB activities and services that consumed BearingPoint generated the revised fee Circular A–25’s definition of full cost them. BearingPoint worked extensively schedule. The FBI then independently ‘‘as all direct and indirect costs to any with FBI staff, including programmatic reviewed the BearingPoint part of the Federal Government of subject matter experts and statistical recommendations, compared them to providing a good, resource, or service’’ experts, to gather the information current fee calculations and plans for was used to include direct and indirect necessary to devise the cost accounting future services, and determined that the personnel costs, physical overhead, and methodology and to construct a revised schedules were both objectively other indirect costs such as material representative ABC model. BearingPoint reasonable and in consonance with the costs, utilities, travel, and equipment. developed its cost accounting underlying legal authorities.
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Overview of the Costs Included in the The automation costs are divided into effective for the FBI to bill a CBSP than Fee Calculation those which support fingerprint to process individual direct payments identification services currently in for single fingerprint-based CHRI check The fee calculation was made by operation and those which support submissions. gathering the labor and nonlabor costs other criminal justice information of those divisions of the FBI that The FBI employs this centralized services. Both types of automation costs billing methodology to collect payment directly or indirectly support the are authorized by Public Law 101–515. for more than 9.8 million fingerprint- provision of the fingerprint-based and The FBI chose to separate these costs to based CHRI checks each year. Under the name-based CHRI check services, and facilitate calculation of the cost of fee schedule proposed in this rule, the then using various drivers to assign providing fingerprint-based CHRI those costs to the identified activities. checks for volunteers, since the VCA FBI will continue the practice of The activities were then assigned to the limits the fee to the actual cost or allowing approved CBSPs to retain a specific fingerprint-based and name- $18.00, whichever is less. The FBI is portion (currently $2.00) of the fee for based CHRI check services or to a interpreting the actual cost of providing fingerprint-based CHRI checks for general category for all other costs. The the service to include only the costs for performing this centralized billing ABC model examined in detail only the automation of fingerprint services service. In order to allow the CBSPs to those costs which were related to the currently in operation; the actual cost retain this portion of the fee, it is fingerprint-based and name-based CHRI does not include the costs for the necessary to include this cost when check services. These services included automation of other criminal justice determining the full costs which the fee both the criminal justice and law information services. must cover. At this time, this cost is enforcement and the noncriminal justice The costs for the automation of the calculated by multiplying the amount identification services performed by the fingerprint identification services the CBSPs are allowed to retain by the CJIS Division of the FBI. The discussion include depreciation costs for the volume of billed transactions. The below is limited to those costs in the fingerprint identification infrastructure centralized billing process will be ABC model which were assigned to the and the costs for developing a disaster subject to further analysis and, fingerprint-based and name-based CHRI recovery capability which would allow consequently, may be revised in the check services that are supported by the the FBI’s essential fingerprint future. user fees. In other words, even though identification services to continue in all the ABC model calculated unit costs for circumstances as required by OMB IV. Proposed Changes to the Fee various criminal justice fingerprint- Circular A–130, Management of Federal Schedule based CHRI check services, these costs Information Resources (OMB Circular Fingerprint-Based CHRI Checks will not be discussed in this regulation A–130). since they are funded with The costs for the automation of other The FBI utilized categories or fee appropriations and not with user fees. criminal justice information services are classes to set the charges for fingerprint- The costs for providing the fee- based on the depreciation of assets based CHRI checks. Fee classes are supported fingerprint-based and name- already in place and the costs of determined by the: based CHRI check services include the enhancements which have passed • through the approval gates for the Type of transaction—manual, personnel costs for both direct and planning stages of system development electronic, or electronic submission indirect support, as well as nonlabor under the FBI’s life cycle management with manual response, or costs such as travel, training, rent, directive. These enhancements include • Volunteer status under the VCA. equipment, utilities, printing, contract the Next Generation Identification support, and supplies. In addition, Name-Based CHRI Checks program, which will increase the speed, depreciation for existing nonautomation capacity, and functionality of the FBI’s assets was included per OMB Circular The name-based CHRI checks are fingerprint identification process, and A–25 guidance. Finally, portions of the available only to authorized Federal the Biometric Interoperability Program FBI’s costs for workers compensation, agencies for purposes specifically which will provide two-way access to unemployment compensation, and the authorized by statute, e.g., pursuant to information in other major fingerprint the Security Clearance Information Act, judgment fund, used to pay judgments databases such as the Department of against the United States where 5 U.S.C. 9101. The fee classes for name- Homeland Security’s database of based CHRI checks differentiate appropriations have not otherwise been nonimmigrant visitors to the United provided, were included. between manual and electronic States. The costs also include the submissions. These costs were derived from the automation of certain aspects of the FBI’s financial systems and audited National Crime Information Center New Services financial statements. The FY 2008 (NCIC), the Law Enforcement National predicted costs were obtained by Data Exchange (N–DEx) program, and If the FBI offers a new service or recalculating the depreciation and the Uniform Crime Reporting (UCR) otherwise requires a new fee class in the adding an inflation factor for labor and program. future, the charge for this new fee class other nonlabor expenses. The OMB pay There is one additional component of will be based upon the closest existing raise and inflation factors provided in cost which was considered when fee class until such time as a new fee OMB Circular A–11, Preparation, determining the fees. Federal agencies, class can be established. Authorized Submission, and Execution of an certain State agencies, and approved users will be advised of the new service Agency Budget, were used. The costs nongovernmental entities that submit or new fee class by CJIS Information associated with providing the services fingerprint-based CHRI checks function Letter or other CJIS communication. The do not include any of the automation as de facto centralized billing service FBI will calculate a fee for the new fee costs which instead were captured in providers (CBSPs) by collecting the class using the methodology discussed the capital investment and depreciation appropriate fee from individuals or in the NPRM and will publish a revised costs for the automation portion of the subordinate agencies and submitting a fee schedule as a notice in the Federal fee described below. consolidated payment. It is more cost- Register. See 73 FR 34906–07 (2008).
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V. Discussion of Comments There are no small businesses, State, local, and Tribal governments (in Comments on the proposed rule were organizations or governmental the aggregate) or by the private sector of received from two individuals and one jurisdictions currently providing billing $100 million or more in any one year, professional association. services as CBSPs. and it will not significantly or uniquely The comments from the professional With regard to name-based CHRI affect small governments. While CBSPs association and an individual were fully checks, there is no direct or indirect may need to adjust their internal supportive of the proposed rule. The impact on small entities, as only Federal automated systems and processes, the letter from the professional association agencies are authorized to request name- change in fee amount is a foreseeable stated, ‘‘We appreciate the importance of based CHRI background checks, and and expected eventuality and therefore, maintaining rigorous personnel security Federal agencies do not fall within the it is expected that these internal systems practices, and believe the FBI’s support definition of a ‘‘small entity.’’ and processes were created with the of non-criminal CHRI checks, whether Accordingly, the Director of the FBI capability of adjusting to changed fees fingerprint or name-based, is necessary hereby certifies that this rule will not without great cost or effort. Therefore, to the success of these programs.’’ The have a significant economic impact on no actions were deemed necessary final comment, from an individual, a substantial number of small entities. under the provisions of the Unfunded concerned the need for increased Executive Order 12866 (Regulatory Mandates Reform Act of 1995. regulation of hazardous materials Planning and Review) Small Business Regulatory Enforcement transportation, rather than the NPRM. Fairness Act of 1996 After reviewing the comments, the FBI This regulation has been drafted and has determined that no changes to the reviewed in accordance with Executive This final rule is not a major rule as proposed rule are necessary. Order 12866, Regulatory Planning and defined by section 804 of the Small Review, section 1(b), Principles of VI. Regulatory Certifications Business Regulatory Enforcement Regulation. The FBI has determined that Fairness Act of 1996. This final rule will Regulatory Flexibility Act this rule is a significant regulatory not result in an annual effect on the U.S. action under Executive Order 12866, economy of $100 million or more; a When an agency issues a rulemaking Regulatory Planning and Review, proposal, the Regulatory Flexibility Act major increase in costs or prices; or section 3(f) and accordingly this rule significant adverse effects on (RFA) requires the agency to ‘‘prepare has been reviewed by the OMB. and make available for public comment competition, employment, investment, an initial regulatory flexibility analysis’’ Executive Order 12988 (Civil Justice productivity, innovation, or on the which will ‘‘describe the impact of the Reform) ability of U.S.-based companies to proposed rule on small entities.’’ (5 This rule meets the applicable compete with foreign-based companies U.S.C. 603(a)). Section 605 of the RFA standards set forth in sections 3(a) and in domestic and export markets. allows an agency to certify, in lieu of 3(b)(2) of Executive Order 12988. IX. Conclusion preparing an analysis, that the proposed rulemaking is not expected to have Executive Order 13132 (Federalism) After careful consideration, the significant economic impact on a This rule will not have a substantial Department does not believe that any substantial number of small entities. direct effect on the States, on the change to the rule is necessary based on Small entities are defined by the RFA to relationship between the national these comments. Accordingly, pursuant include small businesses, small government and the States, or on the to the authority set forth in Public Law organizations, and small governmental distribution of power and 101–515, as amended by Public Law jurisdictions. responsibilities among the various 104–99, set out in the notes to 28 U.S.C. The fees for providing fingerprint- levels of government. The fees for 534, part 20 of chapter I of Title 28 of based and name-based CHRI providing fingerprint-based and name- the CFR is amended as follows. background checks for noncriminal based CHRI background checks for List of Subjects in 28 CFR Part 20 justice purposes normally are imposed noncriminal justice purposes are upon the individual subject of the imposed upon the individual subject of Classified information, Crime, background check, rather than upon the background check, rather than on Intergovernmental relations, small entities. In addition, under the the State. Some States serve as CBSPs by Investigations, Law enforcement, new fee schedule that became effective collecting and submitting an Privacy. October 1, 2007, the fee imposed on individual’s fingerprints to the FBI and ■ Accordingly, pursuant to the authority nonfederal users submitting electronic remitting the fee charged to the set forth in Public Law 101–515, as fingerprint-based CHRI dropped nearly individual. The proposed rule does not amended by Public Law 104–99, set out 20 percent per request. This lower fee is alter the amount the FBI allows CBSPs in the notes to 28 U.S.C. 534, part 20 of applicable to more than 90 percent of to retain for providing these services, chapter 1 of Title 28 of the CFR is the total nonfederal fingerprint-based but merely makes small adjustments to amended as follows: checks. However, the fee for manual the fee schedule already in place. The searches was increased, reflecting proposed rule does not alter any of the PART 20—CRIMINAL JUSTICE comparatively higher processing costs policy set out at 28 CFR part 20, or 28 INFORMATION SYSTEMS for those services. As a result of these CFR parts 901–906. Therefore, in different fees, the FBI expects that users accordance with Executive Order 13132, ■ 1. The authority citation for Part 20 is will seek the lower costs associated with it is determined that this rule does not revised to read as follows: providing electronic fingerprint have sufficient federalism implications Authority: 28 U.S.C. 534; Pub. L. 92–544, submissions. to warrant the preparation of a 86 Stat. 1115; 42 U.S.C. 3711, et seq., Pub. State and Federal agencies and certain Federalism Assessment. L. 99–169, 99 Stat. 1002, 1008–1011, as private entities serve as CBSPs, or Unfunded Mandates Reform Act of 1995 amended by Pub. L. 99–569, 100 Stat. 3190, entities that collect and submit an 3196; Pub. L. 101–515, as amended by Pub. individual’s fingerprints to the FBI and This rule does not contain a mandate L. 104–99, set out in the notes to 28 U.S.C. remit the fee charged to the individual. that will result in the expenditure by 534.
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■ 2. Amend § 20.31 to add paragraph (e) zone. The revised moving security zone proposed rule. No public meeting was to read as follows: extends channel edge to channel edge requested and none was held. on the Calcasieu Channel and shoreline Background and Purpose § 20.31 Responsibilities. to shoreline on the Calcasieu River, 2 * * * * * miles ahead and 1 mile astern of certain Heightened awareness of potential (e) The FBI may routinely establish designated vessels while in transit on terrorist acts requires enhanced security and collect fees for noncriminal justice the Calcasieu Channel or Calcasieu of our ports, harbors, and vessels. fingerprint-based and other River. Meeting, crossing or overtaking This rule establishes new, distinct identification services as authorized by situations are not permitted within the security zones on the waters of the Federal law. These fees apply to security zone unless specifically Calcasieu River. These zones will Federal, State and any other authorized authorized by the Captain of the Port. protect waterfront facilities, persons, entities requesting fingerprint The moving security zone may and vessels from subversive or terrorist identification records and name checks commence at any point while certain acts. This rule also eliminates the for noncriminal justice purposes. vessels are transiting the Calcasieu moving safety zone for non-gas free (1) The Director of the FBI shall Channel or Calcasieu River on U.S. LNGs transiting the Calcasieu Channel review the amount of the fee territorial waters (12 nautical miles) in and Calcasieu River and adds a distinct periodically, but not less than every four the Captain of the Port (COTP) Port moving security zone that may years, to determine the current cost of Arthur zone. These security zones are commence at any point while certain processing fingerprint identification needed to protect vessels, waterfront vessels are transiting the Calcasieu records and name checks for facilities, the public, and other Channel or Calcasieu River on U.S. noncriminal justice purposes. surrounding areas from destruction, territorial waters in the Captain of the (2) Fee amounts and any revisions loss, or injury caused by sabotage, Port, Port Arthur zone. Due to the potential for terrorist attacks, this rule thereto shall be determined by current subversive acts, accidents, or other allows the Captain of the Port to create costs, using a method of analysis actions of a similar nature. Unless moving security zones around certain consistent with widely accepted exempted under this rule, entry into or vessels as deemed necessary, on a case- accounting principles and practices, and movement within these security zones by-case basis. By limiting access to these calculated in accordance with the is prohibited without permission from areas, the Coast Guard is reducing provisions of 31 U.S.C. 9701 and other the Captain of the Port or a designated potential methods of attack on these Federal law as applicable. representative. (3) Fee amounts and any revisions vessels, and potential use of the vessels thereto shall be published as a notice in DATES: This rule is effective May 13, to launch attacks on waterfront facilities the Federal Register. 2010. and adjacent population centers located Dated: March 15, 2010. ADDRESSES: Comments and material within the Captain of the Port zone. Vessels having a need to enter these Robert S. Mueller, III, received from the public, as well as security zones must obtain express Director, Federal Bureau of Investigation. documents mentioned in this preamble as being available in the docket, are part permission from the Captain of the Port, [FR Doc. 2010–8385 Filed 4–12–10; 8:45 am] of docket USCG–2009–0317 and are Port Arthur or a designated BILLING CODE 4410–02–P available online by going to http:// representative prior to entry. www.regulations.gov, inserting USCG– These zones are in an area 2009–0317 in the ‘‘Keyword’’ box, and concentrated with commercial facilities DEPARTMENT OF HOMELAND then clicking ‘‘Search.’’ This material is considered critical to national security. SECURITY also available for inspection or copying This rule does not restrict access to vessels engaged, or assisting in Coast Guard at the Docket Management Facility (M– 30), U.S. Department of Transportation, commerce with waterfront facilities within fixed security zones, vessels 33 CFR Part 165 West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue, SE., operated by port authorities, vessels [Docket No. USCG–2009–0317] Washington, DC 20590, between 9 a.m. operated by waterfront facilities within the fixed security zones, and vessels RIN 1625–AA87 and 5 p.m., Monday through Friday, except Federal holidays. operated by federal, state, county or municipal agencies. By limiting access Security Zone; Calcasieu River and FOR FURTHER INFORMATION CONTACT: If Ship Channel, LA to these areas the Coast Guard is you have questions on this rule, call or reducing potential methods of attack on AGENCY: Coast Guard, DHS. e-mail Mr. Scott Whalen, Marine Safety vessels, waterfront facilities, and Unit Port Arthur, TX, telephone (409) ACTION: Final rule. adjacent population centers located 719–5086, or e-mail within the zones. Vessels not exempted SUMMARY: The Coast Guard is [email protected]. If you have under the provisions of this regulation disestablishing the permanent safety questions on viewing the docket, call and desiring to enter these zones are zone at Trunkline LNG in Lake Charles, Renee V. Wright, Program Manager, required to obtain permission from the LA and replacing it with a security zone Docket Operations, telephone 202–366– Captain of the Port, Port Arthur or a with new boundaries. The Coast Guard 9826. designated representative prior to entry. is also establishing two additional SUPPLEMENTARY INFORMATION: permanent security zones on the waters Discussion of Comments and Changes Regulatory Information of the Calcasieu River for the mooring The Coast Guard received two basins at Cameron LNG in Hackberry, On September 8, 2009, we published comments concerning the NPRM. One LA and PPG Industries in Lake Charles, a notice of proposed rulemaking commenter recommended that the LA. The Coast Guard is also (NPRM) entitled ‘‘Security Zone; boundaries of the proposed security disestablishing the Calcasieu River ship Calcasieu River and Ship Channel, LA’’ zone at PPG Industries (PPG) be channel moving safety zone and in the Federal Register (74 FR 46040). extended to include the transfer dock replacing it with a moving security We received 2 comments on the located at the southern end of PPG
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properties and all shoreline. The Coast significant economic impact on a Taking of Private Property Guard concurs in part with this substantial number of small entities. This rule will not effect a taking of comment and is modifying the security The term ‘‘small entities’’ comprises private property or otherwise have zone to include the southern-most small businesses, not-for-profit taking implications under Executive transfer dock, but will minimize the organizations that are independently Order 12630, Governmental Actions and impact on mariners by having the owned and operated and are not Interference with Constitutionally security zone encompass waters within dominant in their fields, and Protected Property Rights. 100 feet of the shoreline between the governmental jurisdictions with originally proposed security zone and populations of less than 50,000. Civil Justice Reform the southern transfer dock area. This rule meets applicable standards Another commenter recommended The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have in sections 3(a) and 3(b)(2) of Executive adding language specifying the agency Order 12988, Civil Justice Reform, to a significant economic impact on a responsible for enforcement of this minimize litigation, eliminate substantial number of small entities for security zone. The Coast Guard is the ambiguity, and reduce burden. agency responsible for enforcement of the following reasons: (1) The rules for this security zone. The proposed fixed security zones do not interfere Protection of Children language expressly states that with regular vessel traffic within the We have analyzed this rule under permission of the Captain of the Port, Calcasieu Ship Channel, Calcasieu River Executive Order 13045, Protection of Port Arthur must be obtained to enter or the Intracoastal Waterway; (2) the Children from Environmental Health the security zone and future memoranda rule for moving security zones are of Risks and Safety Risks. This rule is not of agreements may allow state or local limited duration and vessels may be an economically significant rule and agencies to assist the Coast Guard in allowed to pass through the zone with does not create an environmental risk to enforcing this security zone. the permission of the Captain of the Port health or risk to safety that may The Coast Guard is making a change or his representative. disproportionately affect children. to the language of the NPRM to provide Assistance for Small Entities Indian Tribal Governments the public with a visual cue that the moving safety zone is in effect. Under section 213(a) of the Small This rule does not have tribal Specifically, the final rule states that Business Regulatory Enforcement implications under Executive Order ‘‘Coast Guard patrol assets will be on Fairness Act of 1996 (Pub. L. 104–121), 13175, Consultation and Coordination scene with flashing blue lights in the NPRM we offered to assist small with Indian Tribal Governments, energized when the moving security entities in understanding the rule so because it does not have a substantial zones are in effect.’’ that they could better evaluate its effects direct effect on one or more Indian tribes, on the relationship between the on them and participate in the Regulatory Analyses Federal Government and Indian tribes, rulemaking process. We developed this rule after or on the distribution of power and considering numerous statutes and Collection of Information responsibilities between the Federal executive orders related to rulemaking. Government and Indian tribes. This rule calls for no new collection Below we summarize our analyses Energy Effects based on 13 of these statutes or of information under the Paperwork executive orders. Reduction Act of 1995 (44 U.S.C. 3501– We have analyzed this rule under 3520). Executive Order 13211, Actions Regulatory Planning and Review Concerning Regulations That Federalism This rule is not a significant Significantly Affect Energy Supply, regulatory action under section 3(f) of A rule has implications for federalism Distribution, or Use. We have Executive Order 12866, Regulatory under Executive Order 13132, determined that it is not a ‘‘significant Planning and Review, and does not Federalism, if it has a substantial direct energy action’’ under that order because require an assessment of potential costs effect on State or local governments and it is not a ‘‘significant regulatory action’’ and benefits under section 6(a)(3) of that would either preempt State law or under Executive Order 12866 and is not Order. The Office of Management and impose a substantial direct cost of likely to have a significant adverse effect Budget has not reviewed it under that compliance on them. We have analyzed on the supply, distribution, or use of Order. this rule under that Order and have energy. The Administrator of the Office We expect the economic impact of determined that it does not have of Information and Regulatory Affairs this rule to be so minimal that a full implications for federalism. has not designated it as a significant Regulatory Evaluation is unnecessary. energy action. Therefore, it does not The basis of this finding is that the fixed Unfunded Mandates Reform Act require a Statement of Energy Effects security zones are not part of the under Executive Order 13211. navigable waterway or a commercial The Unfunded Mandates Reform Act Technical Standards fishing ground and do not impede of 1995 (2 U.S.C. 1531–1538) requires commercial traffic on the Calcasieu Federal agencies to assess the effects of The National Technology Transfer Waterway. The moving security zone is their discretionary regulatory actions. In and Advancement Act (NTTAA) (15 limited in nature and will not create particular, the Act addresses actions U.S.C. 272 note) directs agencies to use undue delay to vessel traffic in or that may result in the expenditure by a voluntary consensus standards in their around the Calcasieu River and Ship State, local, or tribal government, in the regulatory activities unless the agency Channel. aggregate, or by the private sector of provides Congress, through the Office of $100,000,000 or more in any one year. Management and Budget, with an Small Entities Though this rule will not result in such explanation of why using these Under the Regulatory Flexibility Act an expenditure, we do discuss the standards would be inconsistent with (5 U.S.C. 601–612), we have considered effects of this rule elsewhere in this applicable law or otherwise impractical. whether this rule would have a preamble. Voluntary consensus standards are
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technical standards (e.g., specifications 30°06′33″ N, 93°17′36″ W, east to a point moored or an anchored vessel in a of materials, performance, design, or 30°06′30″ N, 93°17′02″ W, north to a security zone described in paragraph operation; test methods; sampling point 30°06′33″ N, 93°17′01″ W, then (a)(2) of this section must remain procedures; and related management tracing the shoreline along the water’s moored or anchored unless it obtains systems practices) that are developed or edge to the point of origin. permission from the Captain of the Port adopted by voluntary consensus (ii) Cameron LNG basin. All waters to do otherwise; standards bodies. encompassed by a line connecting the (ii) Commercial vessels operating at This rule does not use technical following points, beginning at 30°02′33″ waterfront facilities located within the standards. Therefore, we did not N, 093°19′53″ W, east to a point at zone; consider the use of voluntary consensus 30°02′34″ N, 093°19′50″ W, south to a (iii) Vessels providing direct standards. point at 30°02′10″ N, 093°19′52″ W and operational support to commercial west to a point at 30°02′10″ N, 93°19′59″ vessels within a moving security zone; Environment W, then tracing the shoreline along the (iv) Vessels operated by federal, state, We have analyzed this rule under water’s edge to the point of origin. county, or municipal agencies. Department of Homeland Security (iii) PPG Industries basin. All waters (3) Other persons or vessels requiring Management Directive 023–01 and encompassed by a line connecting the entry into security zones described in Commandant Instruction M16475.lD, following points: Beginning at 30°13′29″ this section must request permission which guide the Coast Guard in N, 93°16′34″ W, southwest to a point at from the Captain of the Port, Port Arthur complying with the National 30°13′11″ N, 93°16′51″ W, then or designated representatives. Environmental Policy Act of 1969 proceeding southerly following 100 feet (4) To request permission as required (NEPA)(42 U.S.C. 4321–4370f), and off the shoreline to a point at by these regulations, contact Marine have concluded this action is one of a 30°12′57.2″ N, 93°16′53.2″ W, then east Safety Unit Lake Charles at (337) 491– category of actions which do not to a point at 30°12′57.2″ N, 93°16′50.6″ 7800 or the on scene patrol vessel. individually or cumulatively have a W then southerly to a point at (5) All persons and vessels within a significant effect on the human 30°12′47.7″ N, 93°16′50.3″ W then west security zone described in this section environment. This rule is categorically to the shoreline and then following must comply with the instructions of excluded, under figure 2–1, paragraph along the water’s edge to the point of the Captain of the Port, Port Arthur, (34)(g), of the Instruction. This rule origin. designated on-scene U.S. Coast Guard involves security of certain vessels and (2) The following areas are moving patrol personnel or other designated facilities and is not expected to result in security zones: All waters within the representatives. On-scene U.S. Coast any significant adverse environmental Captain of the Port, Port Arthur zone Guard patrol personnel include impact as described in NEPA. commencing at U.S. territorial waters commissioned, warrant, and petty An environmental analysis checklist and extending channel edge to channel officers of the U.S. Coast Guard. and a categorical exclusion edge on the Calcasieu Channel and Designated representatives include determination are available in the shoreline to shoreline on the Calcasieu federal, state, local and municipal law docket where indicated under River, 2 miles ahead and 1 mile astern enforcement agencies. (c) Informational Broadcasts: The ADDRESSES. of certain designated vessels while in transit. Meeting, crossing or overtaking Captain of the Port, Port Arthur will List of Subjects in 33 CFR Part 165 situations are not permitted within the inform the public when moving security Harbors, Marine safety, Navigation security zone unless specifically zones have been established around (water), Reporting and recordkeeping authorized by the Captain of the Port. vessels via Broadcast Notices to requirements, Security measures, Coast Guard patrol assets will be on Mariners and written notice provided by Waterways. scene with flashing blue lights escort vessels. ■ For the reasons discussed in the energized when the moving security Dated: March 12, 2010. preamble, the Coast Guard amends 33 zones are in effect. J.J. Plunkett, CFR part 165 as follows: (b) Regulations. (1) Entry into or Captain, U.S. Coast Guard, Captain of the remaining in a fixed zone described in Port, Port Arthur. PART 165—REGULATED NAVIGATION paragraph (a)(1) of this section is [FR Doc. 2010–8375 Filed 4–12–10; 8:45 am] AREAS AND LIMITED ACCESS AREAS prohibited for all vessels except: BILLING CODE 9910–04–P (i) Commercial vessels operating at ■ 1. The authority citation for part 165 waterfront facilities within these zones; continues to read as follows: (ii) Commercial vessels transiting ENVIRONMENTAL PROTECTION Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. directly to or from waterfront facilities AGENCY Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; within these zones; 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. (iii) Vessels providing direct 40 CFR Part 52 107–295, 116 Stat. 2064; Department of operational or logistical support to Homeland Security Delegation No. 0170.1. commercial vessels within these zones; [EPA–R05–OAR–2009–0118; FRL–9124–9] ■ (iv) Vessels operated by the 2. Revise § 165.805 to read as follows: Approval and Promulgation of Air appropriate port authority or by Quality Implementation Plans; Indiana; § 165.805 Security Zones; Calcasieu River facilities located within these zones; Alternate Monitoring Requirements for and Ship Channel, Louisiana. and (a) Location. (1) The following areas (v) Vessels operated by federal, state, Indianapolis Power and Light—Harding are designated as fixed security zones county, or municipal agencies. Street Station (all coordinates are based upon North (2) Entry into or remaining in moving AGENCY: Environmental Protection American Datum of 1983 [NAD 83]): zones described in paragraph (a)(2) of Agency (EPA). (i) Trunkline LNG basin. All waters this section is prohibited for all vessels ACTION: Direct final rule. encompassed by a line connecting the except: following points, beginning at 30°06′36″ (i) Moored vessels or vessels anchored SUMMARY: Indiana requested on N, 93°17′36″ W, south to a point in a designated anchorage area. A December 31, 2008, that EPA approve as
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a revision to its State Implementation If you send an e-mail comment directly Indianapolis (Marion County), Indiana. Plan (SIP) alternative monitoring to EPA without going through http:// Indiana submitted its request to EPA on requirements for the Indianapolis Power www.regulations.gov your e-mail December 31, 2008. The alternative and Light Company (IPL) at its Harding address will be automatically captured monitoring plan allows IPL to use a Street Generating Station. The and included as part of the comment particulate matter CEMS in place of a alternative monitoring requirements that is placed in the public docket and COMS to demonstrate compliance with allow the use of a particulate matter made available on the Internet. If you applicable PM limits. (PM) continuous emissions monitoring submit an electronic comment, EPA IPL has installed a wet scrubber system (CEMS) in place of a continuous recommends that you include your control device to control sulfur dioxide opacity monitor system (COMS). name and other contact information in at its Harding Street Station Unit 7. The DATES: This direct final rule will be the body of your comment and with any scrubber adds moisture to the exhaust effective June 14, 2010, unless EPA disk or CD–ROM you submit. If EPA gas, which condenses as the gas stream receives adverse comments by May 13, cannot read your comment due to cools. According to Indiana Department 2010. If adverse comments are received, technical difficulties and cannot contact of Environmental Management (IDEM), EPA will publish a timely withdrawal of you for clarification, EPA may not be the condensation causes unreliable the direct final rule in the Federal able to consider your comment. readings from the COMS on Unit 7. Register informing the public that the Electronic files should avoid the use of COMS measures opacity optically, so it rule will not take effect. special characters, any form of cannot distinguish between light encryption, and be free of any defects or impairment caused by particulate and ADDRESSES: Submit your comments, viruses. light impairment caused by moisture. identified by Docket ID No. EPA–R05– Docket: All documents in the docket The scrubber also removes some PM, so OAR–2009–0118, by one of the are listed in the http:// that placing the COMS prior to the following methods: • www.regulations.gov index. Although exhaust entering the scrubber would http://www.regulations.gov: Follow listed in the index, some information is also incorrectly measure those the on-line instructions for submitting not publicly available, e.g., CBI or other emissions from Unit 7. comments. • information whose disclosure is IDEM has requested EPA approval of E-mail: [email protected]. restricted by statute. Certain other the alternative monitoring requirements • Fax: (312) 385–5501. • material, such as copyrighted material, under 326 IAC 3–5–1(c)(2)(A)(iii) of the Mail: Genevieve Damico, Acting will be publicly available only in hard SIP, which EPA approved on December Chief, Criteria Pollutant Section, Air copy. Publicly available docket 28, 2009 (74 FR 68541). This provision Programs Branch (AR–18J), U.S. materials are available either authorizes IDEM to approve an Environmental Protection Agency, 77 electronically in http:// alternative monitoring requirement for West Jackson Boulevard, Chicago, www.regulations.gov or in hard copy at fossil fuel-fired steam generators when Illinois 60604. ‘‘ • the Environmental Protection Agency, IDEM determines that installation of an Hand Delivery: Genevieve Damico, Region 5, Air and Radiation Division, opacity monitoring system would not Acting Chief, Criteria Pollutant Section, 77 West Jackson Boulevard, Chicago, provide accurate determinations of Air Programs Branch (AR–18J), U.S. Illinois 60604. This Facility is open emissions as a result of interference Environmental Protection Agency, 77 from 8:30 a.m. to 4:30 p.m., Monday from condensed uncombined water.’’ West Jackson Boulevard, Chicago, through Friday, excluding Federal The PM CEMS will be placed after the Illinois 60604. Such deliveries are only holidays. We recommend that you scrubber. A PM CEMS with proper accepted during the Regional Office telephone Matt Rau, Environmental calibration should provide accurate PM normal hours of operation, and special Engineer, at (312) 886–6524 before emission readings, even with moisture arrangements should be made for visiting the Region 5 office. from the scrubber in the exhaust stream. deliveries of boxed information. The FOR FURTHER INFORMATION CONTACT: Matt Indiana certified the Harding Street Regional Office official hours of Rau, Environmental Engineer, Criteria Station’s PM CEMS on June 22, 2009. business are Monday through Friday, Pollutant Section, Air Programs Branch The alternative monitoring plan for 8:30 a.m. to 4:30 p.m., excluding (AR–18J), Environmental Protection the Harding Street Station was adopted Federal holidays. Agency, Region 5, 77 West Jackson by Indiana on October 31, 2008, in Instructions: Direct your comments to Boulevard, Chicago, Illinois 60604, Commissioner’s Order #2008–02. It is Docket ID No. EPA–R05–OAR–2009– (312) 886–6524, [email protected]. not effective, however, until EPA 0118. EPA’s policy is that all comments SUPPLEMENTARY INFORMATION: approves the plan as a SIP revision. See received will be included in the public Throughout this document whenever 326 IAC 3–5–1(c)(2)(A)(iv). docket without change and may be ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean Indiana notified the public of an made available online at http:// EPA. This supplementary information opportunity to request a public hearing www.regulations.gov, including any section is arranged as follows: on this action on November 12, 2008. It personal information provided, unless did not receive any comments or the comment includes information I. What Is the Background for This Action? requests for a public hearing. claimed to be Confidential Business II. What Is EPA’s Analysis of the Revision? Information (CBI) or other information III. What Are the Environmental Effects of II. What Is EPA’s Analysis of the This Action? Revision? whose disclosure is restricted by statute. IV. What Action Is EPA Taking? Do not submit information that you V. Statutory and Executive Order Reviews Under the alternative monitoring plan consider to be CBI or otherwise approved by Indiana in Commissioner’s protected through http:// I. What Is the Background for This Order #2008–02, IPL will continuously www.regulations.gov or e-mail. The Action? monitor PM emissions in place of http://www.regulations.gov Web site is Indiana has requested a revision to its opacity. The visible emissions exiting an ‘‘anonymous access’’ system, which SIP that would authorize an alternative the stack are primarily composed of PM. means EPA will not know your identity monitoring plan contained in a State Visible emissions observations under 40 or contact information unless you Commissioner’s Order for Unit 7 at IPL’s CFR Part 60, Appendix A, Method 9 provide it in the body of your comment. Harding Street Station, located in may be taken in the atmosphere after
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any moisture has condensed and left the Order #2008–02 into the Indiana SIP. • Does not contain any unfunded plume. A COMS, like the one at the The alternative monitoring plan for mandate or significantly or uniquely Harding Street Station, reads the opacity IPL’s Harding Street Station is to use a affect small governments, as described in the stack. The addition of a wet PM CEMS on Unit 7 in place of a in the Unfunded Mandates Reform Act scrubber will remove pollutants from COMS. This action is consistent with of 1995 (Pub. L. 104–4); the exhaust, but will add moisture. This Indiana SIP rule 326 IAC 3–5– • Does not have Federalism moisture condenses as the exhaust cools 1(c)(2)(A)(iii) because moisture in the implications as specified in Executive in the stack causing a higher opacity facility’s exhaust stream could cause Order 13132 (64 FR 43255, August 10, reading from the COMS. Installing the inaccurate opacity readings from a 1999); • COMS to read the opacity before the COMS. Is not an economically significant scrubber would also not give an We are publishing this action without regulatory action based on health or accurate measurement of the facility’s prior proposal because we view this as safety risks subject to Executive Order a noncontroversial amendment and 13045 (62 FR 19885, April 23, 1997); emissions because the COMS would not • reflect any emission reductions from the anticipate no adverse comments. Is not a significant regulatory action scrubber. However, in the proposed rules section subject to Executive Order 13211 (66 FR of this Federal Register publication, we 28355, May 22, 2001); The PM CEMS will be calibrated to • provide accurate measurements even are publishing a separate document that Is not subject to requirements of with moisture in the stack. The PM will serve as the proposal to approve the Section 12(d) of the National CEMS provides the particulate State plan if relevant adverse written Technology Transfer and Advancement emissions from the facility. Knowing the comments are filed. This rule will be Act of 1995 (15 U.S.C. 272 note) because emissions from the facility, IPL will be effective June 14, 2010 without further application of those requirements would able to make adjustments or control notice unless we receive relevant be inconsistent with the Clean Air Act; device repairs should the emissions rise adverse written comments by May 13, and • Does not provide EPA with the too high. This facility will average the 2010. If we receive such comments, we discretionary authority to address, as PM CEMS data at time intervals will withdraw this action before the appropriate, disproportionate human specified in its Title V permit. IPL is effective date by publishing a health or environmental effects, using also required to monitor other subsequent document that will practicable and legally permissible pollutants and their operating withdraw the final action. All public methods, under Executive Order 12898 parameters. The alternate monitoring comments received will then be (59 FR 7629, February 16, 1994). requirement removes the need to addressed in a subsequent final rule based on the proposed action. The EPA In addition, this rule does not have operate the COMS, but does not remove Tribal implications as specified by the opacity limits at the facility under will not institute a second comment period. Any parties interested in Executive Order 13175 (65 FR 67249, SIP rules 326 IAC 5–1. Visible emissions November 9, 2000), because the SIP is observations in accordance with Method commenting on this action should do so at this time. If we do not receive any not approved to apply in Indian country 9 can still be made to determine located in the State, and EPA notes that whether the opacity limits are being comments, this action will be effective 1 June 14, 2010. it will not impose substantial direct met. costs on Tribal governments or preempt III. What Are the Environmental Effects V. Statutory and Executive Order Tribal law. of This Action? Reviews The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small PM interferes with lung function Under the Clean Air Act, the Business Regulatory Enforcement when inhaled. Exposure to PM can Administrator is required to approve a Fairness Act of 1996, generally provides cause heart and lung disease. It also SIP submission that complies with the that before a rule may take effect, the aggravates asthma. Airborne particulate provisions of the Act and applicable agency promulgating the rule must is also a source of haze, which reduces Federal regulations. 42 U.S.C. 7410(k); submit a rule report, which includes a visibility. PM deposited on the ground 40 CFR 52.02(a). Thus, in reviewing SIP copy of the rule, to each House of the and in the water harms the environment submissions, EPA’s role is to approve Congress and to the Comptroller General by changing the nutrient and chemical State choices, provided that they meet of the United States. EPA will submit a balance. the criteria of the Clean Air Act. report containing this action and other This action only changes the PM Accordingly, this action merely required information to the U.S. Senate, monitoring requirements for Unit 7 at approves State law as meeting Federal the U.S. House of Representatives, and the Harding Street Station. All other requirements and does not impose the Comptroller General of the United applicable air pollution control additional requirements beyond those States prior to publication of the rule in requirements remain in place. No imposed by State law. For that reason, the Federal Register. A major rule changes in any emissions from the this action: • ‘‘ cannot take effect until 60 days after it Harding Street Station are expected as a Is not a significant regulatory ’’ is published in the Federal Register. result of this action. action subject to review by the Office of Management and Budget under This action is not a ‘‘major rule’’ as IV. What Action Is EPA Taking? Executive Order 12866 (58 FR 51735, defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the Clean EPA is approving the alternative October 4, 1993); • Air Act, petitions for judicial review of monitoring plan in Commissioner’s Does not impose an information collection burden under the provisions this action must be filed in the United 1 The Commissioner’s Order also contains a of the Paperwork Reduction Act (44 States Court of Appeals for the section granting a variance to IPL for the period of U.S.C. 3501 et seq.); appropriate circuit by June 14, 2010. time between the completion of the CEMS • Is certified as not having a Filing a petition for reconsideration by certification and EPA’s approval of the alternative significant economic impact on a the Administrator of this final rule does opacity monitoring plan. As noted in the variance provision: ‘‘This is a variance from State law only substantial number of small entities not affect the finality of this action for and does not change Federally approved SIP under the Regulatory Flexibility Act (5 the purposes of judicial review nor does requirements.’’ Order at 4. U.S.C. 601 et seq.); it extend the time within which a
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petition for judicial review may be filed, DEPARTMENT OF HEALTH AND victimization are degrading to women and shall not postpone the effectiveness HUMAN SERVICES and children and it should be the policy of such rule or action. Parties with of the United States to eradicate such objections to this direct final rule are 45 CFR Part 89 practices. The sex industry, the encouraged to file a comment in RIN 0991–AB60 trafficking of individuals into such response to the parallel notice of industry, and sexual violence are proposed rulemaking for this action Organizational Integrity of Entities That additional causes of and factors in the published in the proposed rules section Are Implementing Programs and spread of the HIV/AIDS epidemic.’’ of today’s Federal Register, rather than Activities Under the Leadership Act Leadership Act § 2(23) Public Law 108– file an immediate petition for judicial 25. Congressional hearings at the time of AGENCY: U.S. Department of Health and the Act showed a high incidence of HIV review of this direct final rule, so that Human Services. EPA can withdraw this direct final rule among prostitutes and that prostitution ACTION: Final rule. fueled the demand for sex trafficking. and address the comment in the Accordingly, Congress unambiguously proposed rulemaking. This action may SUMMARY: The Department is issuing a called for the elimination of prostitution not be challenged later in proceedings to final rule establishing the organizational and sex-trafficking as part of the United enforce its requirements. (See section integrity requirements for Federal States’ fight against HIV/AIDS. 307(b)(2).) funding recipients under the United Section 301(f) [22 U.S.C. 7631(f)] of States Leadership Against HIV/AIDS, List of Subjects in 40 CFR Part 52 the Leadership Act requires that funding Tuberculosis, and Malaria Act of 2003 recipients have a policy explicitly Environmental protection, Air (Leadership Act). This rule requires that opposing prostitution and sex pollution control, Incorporation by funding announcements and agreements trafficking. Additionally, recipients of reference, Intergovernmental relations, with funding recipients include a clause Leadership Act funds cannot engage in that states that the recipient is opposed Particulate matter, Reporting and activities that are inconsistent with their to prostitution and sex trafficking recordkeeping requirements. opposition to prostitution and sex because of the psychological and trafficking. Dated: February 25, 2010. physical risks they pose for women, Congress did not dictate the means by Walter W. Kovalick Jr., men and children. This rule also which the Department would Acting Regional Administrator, Region 5. modifies the requirements for recipient- implement the policy and the affiliate separation and eliminates the Congressional intent of the Act was not ■ 40 CFR part 52 is amended as follows: requirement for an additional to overburden applicants with certification by funding recipients. unnecessary requirements. For example, PART 52—[AMENDED] DATES: This rule is effective May 13, during legislative debate on the 2010. Leadership Act, in response to a ■ 1. The authority citation for part 52 question from Senator Leahy on the continues to read as follows: FOR FURTHER INFORMATION CONTACT: John Monahan, Office of Global Health Senate floor regarding section 301(f), Authority: 42 U.S.C. 7401 et seq. Affairs, Hubert H. Humphrey Building, Senator Frist stated that ‘‘a statement in Room 639H, 200 Independence Avenue, the contract or grant agreement between Subpart P—Indiana SW., Washington, DC 20201, Tel: 202– the U.S. Government and such 690–6174, E-mail: [email protected]. organization that the organization is ■ 2. Section 52.770 is amended by opposed to the practices of prostitution SUPPLEMENTARY INFORMATION: adding paragraph (c)(194) to read as and sex trafficking because of the follows: I. Background psychological and physical risks they pose for women * * * would satisfy the A. Statutory Background § 52.770 Identification of plan. intent of the provision.’’ 149 CONG. * * * * * Congress enacted the United States REC. S6,457 (daily ed. May 15, 2003) Leadership Against HIV/AIDS, (c) * * * (statement of Sen. Frist). Tuberculosis, and Malaria Act of 2003 (194) On December 31, 2008, Indiana (‘‘Leadership Act’’) in May 2003. Public B. Litigation and Regulatory Background submitted a Commissioner’s Order that Law 108–25 [22 U.S.C. 7601–7682]. The The Leadership Act was challenged provided an alternative monitoring plan Leadership Act contains limitations on on constitutional grounds in two for Indianapolis Power and Light— the use of funds provided to carry out separate lawsuits after its enactment. In Harding Street Generating Station in HIV/AIDS activities under the Act. a case filed in the U.S. District Court for Marion County that is being Subsection 7631(f) prohibits the use of the District of Columbia, plaintiffs incorporated into its SIP. The Leadership Act HIV/AIDS funds ‘‘to claimed the anti-prostitution provision alternative monitoring requirements provide assistance to any group or compelled speech when the allow the use of a particulate matter organization that does not have a policy organization had no policy either continuous emissions monitoring explicitly opposing prostitution and sex opposing or supporting prostitution. system in place of a continuous opacity trafficking.’’ Subsection 7631(f) was DKT Int’l v. United States Agency for monitor. amended in 2004 to exempt certain Int’l Dev. (USAID), 435 F. Supp. 2d 5 (D.D.C. 2006). Ultimately, the U.S. Court (i) Incorporation by reference. public international organizations. Consolidated Appropriations Act of of Appeals for the District of Columbia Commissioner’s Order #2008–02 for 2004, Public Law 108–199, Div. D, Title Circuit upheld the anti-prostitution Indianapolis Power and Light as issued II (2004). provision, holding that the government by the Indiana Department of The United States government is had a legitimate interest in ensuring that Environmental Management on October opposed to prostitution and sex organizations chosen to communicate 31, 2008. trafficking. In enacting the Leadership its particular viewpoint did so in an [FR Doc. 2010–8295 Filed 4–12–10; 8:45 am] Act, Congress specifically found efficient and effective fashion. DKT Int’l BILLING CODE 6560–50–P ‘‘Prostitution and other sexual v. USAID, 477 F.3d 758 (DC Cir. 2007).
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In upholding this provision, the DC prostitution and sex trafficking. The recipients under the Leadership Act. Circuit relied in part on the fact that final rule also required all Leadership The Department shall include in any nothing prevented the plaintiff from Act HIV/AIDS funding recipients, HIV/AIDS public funding itself remaining neutral and setting up including sub-recipients, to certify announcement under the Leadership a subsidiary that had a policy opposing compliance with the rule. Act the requirement that recipients prostitution to receive government On November 23, 2009, the agree that they are opposed to the funds. Department again issued a notice of practices of prostitution and sex A second case was filed in the U.S. proposed rulemaking to modify the final trafficking because of the psychological District Court for the Southern District rule of January 20, 2009. 74 FR 61096 and physical risks they pose for women, of New York, which granted an (11/23/2009). The proposed amendment men and children. This statement will injunction against the Government on to the present rule modifies the criteria also be included in any Leadership Act the basis that the statute was for evaluating the separation between HIV/AIDS funding instrument entered unconstitutional because it did not recipients and affiliated organizations, into with the recipient. As explained, leave open ‘‘adequate alternative while complying with the statutory the Department believes this statement channels for communication.’’ Alliance requirement regarding opposition to is consistent with the anti-prostitution for Open Soc’y Int’l (AOSI) v. USAID, prostitution and sex trafficking. It is provision and the Congressional intent 430 F. Supp. 2d 222 (S.D.N.Y. 2006). On essential to the Leadership Act that behind it, as well as other goals of the appeal, the U.S. Court of Appeals for the recipients of funds who implement HIV/ Act. Second Circuit remanded the case, in AIDS programs and activities do not The Department will work with the light of newly issued guidance by the create confusion as to the U.S. Department of State and with other Government providing for organizations Government’s message opposing agencies implementing the Leadership to work with affiliates that would not be prostitution and sex trafficking by Act to ensure consistent application of subject to the Leadership Act’s undertaking activities or advocating its requirements. requirements. AOSI v. USAID, 254 Fed. positions that conflict with this policy. Section 89.2 Definitions Appx. 843 (2d Cir. 2007). Upon remand, However, as noted above, the however, the District Court maintained Department has determined that the This section defines terms used in the injunction and allowed additional Congressional intent of the Leadership this rule. It retains several terms from plaintiffs to join the suit. AOSI v. Act can be effectuated through the the previous iteration of the rule such as USAID, 570 F. Supp. 2d 533 (S.D.N.Y. application of standards that allow more ‘‘commercial sex act’’ and ‘‘prostitution.’’ 2008). The Government has appealed flexibility for funding recipients than However, given the regulation now that decision. the present guidelines. requires the anti-prostitution statement Prior to and concurrent with the only in the announcement and the litigation, the Department took a II. Description of Final Rule and awarding instrument to the ‘‘recipient,’’ number of steps to implement the Response to Comments it deletes the terms ‘‘prime recipient’’ prostitution policy requirement under The Department received twenty- and ‘‘subrecipient.’’ A definition of the statute. By December 2003, HHS had seven comments in response to the ‘‘recipient’’ that mirrors the former begun including a requirement in all of proposed rule, including one comment ‘‘prime recipient,’’ directly funded its grant and cooperative agreement filed after the close of the comment entity, is included. While the section funding announcements that all period which was also considered. deletes the definition of subrecipient, recipients under the Leadership Act of Comments came from individuals and any organization receiving Leadership HIV/AIDS funds have a policy explicitly organizations both opposed to and in Act HIV/AIDS funds must comply with opposing prostitution and sex favor of changes to the previous rule. the statutory requirements. trafficking. On July 23, 2007, HHS Several comments were not responsive Several commenters objected to the published ‘‘Organizational Integrity to the proposed rule and therefore are lack of definition for a number of terms Guidance’’ in the Federal Register to not addressed. Several commenters such as ‘‘affiliate,’’ ‘‘restricted activities,’’ clarify the scope of the policy stated the policy requirement was and ‘‘to the extent practicable.’’ As requirement. The guidance allowed inconsistent with the Leadership Act or explained below, the Department’s Leadership Act HIV/AIDS funding improperly conflated prostitution with commitment to a case-by-case approach recipients to have relationships with sex trafficking. However, the final rule in this area will allow flexibility based organizations that engage in activities is consistent with section 301(f) of the on the circumstances presented. Some inconsistent with a policy against Act which requires organizations organizations may be better able to prostitution and sex trafficking. 72 FR receiving funds to have a policy separate themselves from an affiliate ‘‘in 41,076 (7/26/2007). HHS followed the opposing ‘‘prostitution and sex the circumstances.’’ Conditions in some issuance of this guidance with a notice trafficking.’’ Other comments are countries may make it difficult for of proposed rulemaking (NPRM) on discussed under applicable headings. organizations to meet certain factors April 17, 2008, 73 FR 29,096, which relevant to determining whether initiated the notice-and-comment Section 89.1 Applicability sufficient separation exists. Therefore, rulemaking process. The final rule was This section provides that the policy any attempt to strictly prescribe the published on December 24, 2008, 73 FR requirement applies to all funding degree of separation would undermine 78,997, corrected on January 16, 2009, recipients not exempted by the the purpose of the regulation. 74 FR 2,888 (codified at 45 CFR part 89), Leadership Act. Currently, those Similarly, the Department does not and took effect on January 20, 2009. The organizations exempted are the Global define the term ‘‘affiliated final rule established the legal, Fund to Fight AIDS, Tuberculosis, and organizations.’’ In common usage, financial, and organizational standards Malaria, the World Health Organization, ‘‘affiliate’’ means ‘‘to bring into close for determining whether a funding the International AIDS Vaccine connection as a member or branch.’’ recipient had objective integrity and Initiative and any other United Nations Merriam-Webster’s Collegiate Dictionary independence from an affiliated agency. at 21 (11th ed. 2007). Legal affiliation is organization that engaged in activities This section also states what is only one aspect of this relationship. The inconsistent with a policy opposing required of HIV/AIDS funding use of separate personnel, accounting,
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timekeeping, space and identifying Many commenters believe that the organization that does not have a policy signage are also factors, among others. proposed rule, even with modification, opposing prostitution. The court In determining whether there is unlawfully compels speech in violation decisions previously discussed all sufficient separation, the Department of the First Amendment, and therefore upheld similar regulations where the will not base its decision solely on cannot be enforced against domestic Government specifically stated the whether an entity is a legally separate entities. The Department disagrees. As factors were ‘‘not limited to’’ those set ‘‘affiliate,’’ but instead will consider the explained above, the DC Circuit Court of forth in regulation. likelihood that the degree of separation Appeals upheld the Leadership Act Several commenters expressed between a recipient of Leadership Act against constitutional claims even prior concern that the extent of restricted HIV/AIDS funds and other connected to the promulgation of implementing activities by the affiliated organization organizations that are not required to regulations. The court in that case would be a factor considered by the have a policy opposing prostitution and specifically relied on the fact that Department. Given that the purpose of sex trafficking will not undermine or entities were free to set up affiliates affiliate separation requirements is to confuse the Government’s position in which ‘‘would qualify for government determine when an affiliated opposition to prostitution and sex funds as long as the two organizations’ organization is so closely tied to the trafficking. activities were kept sufficiently funding recipient that a reasonable As noted by multiple comments, the separate.’’ DKT Int’l v. USAID, 477 F.3d observer would attribute its activities to proposed rule did not define ‘‘restricted at 763. Likewise, the Supreme Court and the funding recipient, the Department activities.’’ Several comments expressed the Second Circuit Court of Appeals agrees that the extent of restricted concerns that organizations that work have upheld more burdensome activities by a separate entity should not with the victims of prostitution and sex regulations where funding recipients be considered, and therefore has deleted trafficking would stop providing had ‘‘adequate alternative channels for that part of Subsection 89.3(b)(4). services that could prevent HIV/AIDS protected expression.’’ Brooklyn Legal Several commenters believed the because of their fear that the Servs. Corp. v. Legal Serv’s Corp., 462 proposed rule should mirror the Government would determine the F.3d 219, 231 (2d Cir. 2006); Rust v. Department’s non-discrimination activities were ‘‘restricted activities,’’ Sullivan, 500 U.S. 173 (1991). regulations for faith based organizations. and revoke Federal funding. Several The goal in implementing the revised Under these regulations, the comments also sought approval of rule on the prostitution policy provision commenters insist, ‘‘religious activities’’ particular hypotheticals. The is to ensure that the Government’s require only time or space separation. Department does not believe it should position opposing prostitution and sex However, the faith based regulations provide opinions on hypothetical trafficking is not undermined while rely on different statutory and scenarios because information may be allowing Leadership Act funding constitutional foundations. The faith incomplete. While the Department does recipients greater flexibility in finding based regulations allow religious and not define restricted activities in the alternative channels for protected non-religious organizations to compete rule, working with other agencies expression in diverse areas for diverse equally in applying for Federal funds as implementing the Leadership Act, the populations. Given the numerous long as time, place and other restrictions U.S. Government intends to provide factual situations that may arise, the on religious activities are met consistent broad information on types of activities Department has deliberately adopted a with the Establishment Clause of the that illustrate what would be covered. case-by-case approach in this area, U.S. Constitution. By contrast, the recognizing that circumstances in some Leadership Act requires all funding Section 89.3 Organizational Integrity countries may make it difficult for recipients, regardless of the character of of the Recipients organizations to satisfy some of the their organization, to have a policy This section sets forth the separation factors demonstrating objective integrity against prostitution and sex trafficking. requirements for funding recipients who and independence. The Department also The Leadership Act requires that HIV/ wish to affiliate with organizations that plans to work with recipients to address AIDS funding recipients act consistently do not have a policy opposing individual questions regarding the with their opposition to prostitution and prostitution and sex trafficking. separation criteria, and to help remedy sex trafficking. This requirement Specifically, the final rule no longer violations before taking enforcement necessitates greater separation between requires that an affiliate be a legally action. We believe these steps will funding recipients and organizations separate entity. As stated in the ensure recipients have adequate that engage in activities inconsistent November 23, 2009, NPRM, separate channels for engaging in protected with an opposition to prostitution and legal incorporation in each of the host speech while still adhering to the sex trafficking, than the faith based countries where a recipient might work requirement of the Leadership Act that regulations require between could prove complicated. Additionally, recipient organizations be opposed to governmental programs operated by a the inherent difficulty of the the practices of prostitution and sex faith based organization and its religious Department analyzing multiple foreign trafficking because of the psychological activities. The Department believes this legal requirements makes this factor and physical risks they pose for women, rule best meets the goals of the unworkable as a determinative criterion. men and children. Leadership Act’s anti-prostitution The rule also allows greater flexibility Several commenters also objected to provision without infringing upon the for funding recipients to demonstrate the Department’s listing of only five constitutional rights of recipients. organizational separation from entities factors relevant to the integrity analysis which do not have a policy opposing when the regulation allows that other Deleted Section 89.3 Certification sex trafficking and prostitution. As unlisted factors may be taken into As proposed, former section 89.3 noted in the NPRM, these changes account. Again, the relevant inquiry will requiring annual certification of include changing separate personnel not be the presence or absence of any compliance with the anti-prostitution requirements to allocation of personnel particular factor, but the ‘‘totality of provision by both recipients and sub- requirements, and the deletion of circumstances,’’ under which the recipients has been deleted. The separate management and governance recipient organization is shown to be Department does not believe such requirements. sufficiently separate from an affiliate procedures are necessary for compliance
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under the Leadership Act. Recipients enforcement when those requirements recipients in complying with the policy. are still required to follow the dictates are not met. Given the cost to the public The December 24, 2008, final rule of the Leadership Act and maintain the of administering the certification and required statements and formal required separation from affiliates that the negligible benefit to the Department, documentation from recipients before engage in activities inconsistent with an deleting the requirement comports with they could receive Leadership Act HIV/ opposition to prostitution and sex the goals of the Paperwork Reduction AIDS funds. The Impact Analysis and trafficking. The required notice in the Act to ‘‘minimize the paperwork burden the Paperwork Reduction Act in the public announcement and awarding * * * from the collection of information December 24, 2008, final rule estimated instrument will provide notice to by and for the Federal Government.’’ 35 the burden and cost of writing the funding recipients of the Leadership U.S.C. 3501. additional documentation. This rule no Act’s anti-prostitution requirements and III. Impact Analysis longer requires this additional allow an opportunity to engage the documentation. As a result, applicants Executive Order 12866 and Paperwork Department in further dialogue on the for Leadership Act HIV/AIDS funds will Reduction Act issue if an applicant desires. no longer have to incur the costs Those commenting on this deletion As explained in the NPRM to this outlined in the December 24, 2008, suggested the lack of certification would final rule, this rule is a ‘‘significant impact analysis and paperwork burden make the Leadership Act unenforceable, regulatory action’’ under Executive analysis. adding that the negligible cost of Order 12866, section 3(f)(4), because it certification is far outweighed by its raises novel legal or policy issues that Therefore, the rule should relieve benefits. The Department disagrees. The arise out of legal mandates and the regulated entities by the amounts Department is not hampered in its President’s priorities, and accordingly, specified in the December 24, 2008, monitoring or enforcement by the lack the Office of Management and Budget final rule. We are republishing the of certification, and may still conduct has reviewed it. impact table from the December 24, audits of discretionary grant programs This rule modifies a previously issued 2008, final rule. The burden estimate whenever they are warranted to ensure final rule on the same subject, published was $7,337 calculated by assuming an compliance with program requirements. on December 24, 2008, in the Federal additional half hour of clerical work to Nothing in the Leadership Act requires Register. The modification reduces the prepare documentation on behalf of 555 certification by recipients or prevents burden on applicants and funding grantees at an hourly rate of $ 26.44.
Number of Number of responses Average Average cost Total burden Total burden Instrument respondents per burden hours per hour hours cost respondent per response
Certifications ...... 555 1 0.5 $26.44 277.5 $7,337
List of Subjects in 45 CFR Part 89 § 89.1 Applicability and requirements. Public Law 108–25, as amended (22 (a) This regulation applies to all U.S.C. 7601–7682). Administrative practice and recipients unless they are exempted Prostitution means procuring or procedure, Federal aid programs, Grants from the policy requirement by the providing any commercial sex act. programs, Grants administration. Leadership Act or other statute. Recipients are contractors, grantees, Dated: January 22, 2010. (b) The Department of Health and applicants or awardees who receive John Monahan, Human Services (HHS) components Leadership Act funds for HIV/AIDS Interim Director, Office of Global Health shall include in the public programs directly or indirectly from Affairs. announcement of the availability of the HHS. grant, cooperative agreement, contract, Dated: January 22, 2010. or other funding instrument involving Sex trafficking means the recruitment, Kathleen Sebelius, Leadership Act HIV/AIDS funds the harboring, transportation, provision, or Secretary. requirement that recipients agree that obtaining of a person for the purpose of a commercial sex act. ■ Therefore, under the authority of they are opposed to the practices of section 301(f) of the Leadership Act, as prostitution and sex trafficking because § 89.3 Organizational integrity of amended, and for the reasons stated in of the psychological and physical risks recipients. they pose for women, men, and the preamble, the Department revises 45 A recipient must have objective children. This requirement shall also be CFR part 89 to read as follows: integrity and independence from any included in the award documents for affiliated organization that engages in any grant, cooperative agreement or PART 89—ORGANIZATIONAL activities inconsistent with the other funding instrument involving INTEGRITY OF ENTITIES recipient’s opposition to the practices of Leadership Act HIV/AIDS funds entered IMPLEMENTING PROGRAMS AND prostitution and sex trafficking because into with the recipient. ACTIVITIES UNDER THE LEADERSHIP of the psychological and physical risks ACT § 89.2 Definitions. they pose for women, men and children Sec. For the purposes of this part: (‘‘restricted activities’’). A recipient will 89.1 Applicability and requirements. Commercial sex act means any sex act be found to have objective integrity and 89.2 Definitions. on account of which anything of value independence from such an 89.3 Organizational integrity of recipients. is given to or received by any person. organization if: Authority: Section 301(f) of the Leadership Leadership Act means the United (a) The affiliated organization receives Act, Pub. L. 108–25, as amended (22 U.S.C. States Leadership Against HIV/AIDS, no transfer of Leadership Act HIV/AIDS 7631(f)) and 5 U.S.C. 301. Tuberculosis, and Malaria Act of 2003, funds, and Leadership Act HIV/AIDS
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funds do not subsidize restricted Service, the Alaska Department of Fish bird subsistence harvest regulations in activities; and and Game, and Alaska Native Alaska for the 2010 season. These (b) The recipient is, to the extent representatives. This rulemaking is regulations enable the continuation of practicable in the circumstances, necessary because the regulations customary and traditional subsistence separate from the affiliated organization. governing the subsistence harvest of uses of migratory birds in Alaska and Mere bookkeeping separation of migratory birds in Alaska are subject to prescribe regional information on when Leadership Act HIV/AIDS funds from annual review. This rulemaking and where the harvesting of birds may other funds is not sufficient. HHS will establishes region-specific regulations occur. These regulations were determine, on a case-by-case basis and that go into effect April 13, 2010 and developed under a co-management based on the totality of the facts, expire August 31, 2010. process involving the Service, the whether sufficient separation exists. The DATES: The amendments to subpart D of Alaska Department of Fish and Game, presence or absence of any one or more 50 CFR part 92 are effective April 13, and Alaska Native representatives. factors relating to legal, physical, and 2010, through August 31, 2010. We opened the process to establish regulations for the 2010 spring and financial separation will not be FOR FURTHER INFORMATION CONTACT: Fred summer subsistence harvest of determinative. Factors relevant to this Armstrong, (907) 786–3887, or Donna determination shall include, but not be migratory birds in Alaska in a proposed Dewhurst, (907) 786–3499, U.S. Fish rule published in the Federal Register limited to, the following: and Wildlife Service, 1011 E. Tudor (1) Whether the organization is a on April 10, 2009 (74 FR 16339). While Road, Mail Stop 201, Anchorage, AK that proposed rule dealt primarily with legally separate entity; 99503. (2) The existence of separate the regulatory process for hunting personnel or other allocation of SUPPLEMENTARY INFORMATION: migratory birds for all purposes throughout the United States, we also personnel that maintains adequate Why Is This Rulemaking Necessary? separation of the activities of the discussed the background and history of affiliated organization from the This rulemaking is necessary because, Alaska subsistence regulations, recipient; by law, the migratory bird harvest explained the annual process for their (3) The existence of separate season is closed unless opened by the establishment, and requested proposals accounting and timekeeping records; Secretary of the Interior, and the for the 2010 season. The rulemaking (4) The degree of separation of the regulations governing subsistence processes for both types of migratory recipient’s facilities from facilities in harvest of migratory birds in Alaska are bird harvest are related, and the April which restricted activities occur; and subject to public review and annual 10, 2009, proposed rule explained the (5) The extent to which signs and approval. This rule establishes connection between the two. other forms of identification that regulations for the taking of migratory The Alaska Migratory Bird Co- distinguish the recipient from the birds for subsistence uses in Alaska management Council (Co-management affiliated organization are present. during the spring and summer of 2010. Council) held a meeting in April 2009 This rule lists migratory bird season to develop recommendations for [FR Doc. 2010–8378 Filed 4–12–10; 8:45 am] openings and closures in Alaska by changes that would take effect during BILLING CODE 4150–38–P region. the 2010 harvest season. These recommendations were presented first How Do I Find the History of These to the Flyway Councils and then to the DEPARTMENT OF THE INTERIOR Regulations? Service Regulations Committee at the Background information, including committee’s meeting on July 29 and 30, Fish and Wildlife Service past events leading to this rulemaking, 2009. accomplishments since the Migratory 50 CFR Part 92 Who Is Eligible To Hunt Under These Bird Treaties with Canada and Mexico Regulations? [FWS–R7–MB–2009–0082; 91200–1231– were amended, and a history addressing 9BPP–L2] conservation issues can be found in the Eligibility to harvest under the following Federal Register documents: regulations established in 2003 was RIN 1018–AW67 limited to permanent residents, regardless of race, in villages located Migratory Bird Subsistence Harvest in Date FEDERAL REG- Alaska; Harvest Regulations for ISTER citation within the Alaska Peninsula, Kodiak Archipelago, the Aleutian Islands, and Migratory Birds in Alaska During the August 16, 2002 ...... 67 FR 53511. 2010 Season in areas north and west of the Alaska July 21, 2003 ...... 68 FR 43010. Range (50 CFR 92.5). These geographical April 2, 2004 ...... 69 FR 17318. AGENCY: Fish and Wildlife Service, April 8, 2005 ...... 70 FR 18244. restrictions opened the initial Interior. February 28, 2006 ...... 71 FR 10404. subsistence migratory bird harvest to ACTION: Final rule. April 11, 2007 ...... 72 FR 18318. about 13 percent of Alaska residents. March 14, 2008 ...... 73 FR 13788. High populated areas such as SUMMARY: The U.S. Fish and Wildlife May 19, 2009 ...... 74 FR 23336. Anchorage, the Matanuska-Susitna and Service (Service or we) establishes Fairbanks North Star boroughs, the migratory bird subsistence harvest These documents, which are all final Kenai Peninsula roaded area, the Gulf of regulations in Alaska for the 2010 rules setting forth the annual harvest Alaska roaded area, and Southeast season. These regulations enable the regulations, are available at http:// Alaska were excluded from eligible continuation of customary and alaska.fws.gov/ambcc/regulations.htm. subsistence harvest areas. traditional subsistence uses of migratory Based on petitions requesting birds in Alaska and prescribe regional What Is the Process for Issuing inclusion in the harvest, in 2004, we information on when and where the Regulations for the Subsistence Harvest added 13 additional communities based harvesting of birds may occur. These of Migratory Birds in Alaska? on criteria set forth in 50 CFR 92.5(c). regulations were developed under a co- The U.S. Fish and Wildlife Service These communities were Gulkana, management process involving the (Service or we) establishes migratory Gakona, Tazlina, Copper Center,
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Mentasta Lake, Chitina, Chistochina, in mind, the Service, working with Specifically, as local communities Tatitlek, Chenega, Port Graham, partners, developed measures in 2009 to develop greater responsibility for taking Nanwalek, Tyonek, and Hoonah, with a further reduce the potential for shooting actions to ensure Steller’s and combined population of 2,766. In 2005, mortality or injury of closed species. spectacled eider conservation and we added three additional communities These conservation measures included: recovery, and hunters demonstrate for glaucous-winged gull egg gathering (1) Increased waterfowl hunter outreach greater compliance with hunting only, based on petitions requesting and community awareness partnering regulations, the Service’s Office of Law inclusion. These southeastern with the Migratory Bird Task Force; (2) Enforcement plans to decrease its communities were Craig, Hydaburg, and continued enforcement of the migratory presence in Barrow. Yakutat, with a combined population of bird regulations that are protective of The longstanding general emergency 2,459. listed eiders; and (3) in-season Service closure provision at 50 CFR 92.21 In 2007, we enacted the Alaska verification of the harvest to detect specifies that the harvest may be closed Department of Fish and Game’s request Steller’s eider mortality. or temporarily suspended upon finding to expand the Fairbanks North Star This rule is focused on the North that a continuation of the regulation Borough excluded area to include the Slope from Barrow through Point Hope allowing the harvest would pose an Central Interior area. This action because listed spectacled and Steller’s imminent threat to the conservation of excluded the following communities eiders from the listed Alaska breeding any migratory bird population. With from participation in this harvest: Big population, are known to breed and regard to Steller’s eiders, the regulation Delta/Fort Greely, Healy, McKinley migrate there. These regulations address at 50 CFR 92.32, carried over from last Park/Village and Ferry, with a combined several eider management needs by year, clarifies that we will take action population of 2,812. These removed restricting hunting to times of day with under 50 CFR 92.21 as is necessary to communities reduced the percentage of sufficient daylight to improve a hunter’s prevent further take of Steller’s eiders, the State population included in the ability to distinguish between species and that action could include temporary subsistence harvest to 13 percent. and minimize shooting species closed or long-term closures of the harvest in for harvest; clarifying for subsistence all or a portion of the geographic area How Will the Service Ensure That the users that Service law enforcement open to harvest. If mortality of Subsistence Harvest Will Not Raise personnel have authority to verify threatened eiders occurs, we will Overall Migratory Bird Harvest or species of birds possessed by hunters; evaluate each mortality event by criteria Threaten the Conservation of clarifying that it is illegal to possess any such as cause, quantity, sex, age, Endangered and Threatened Species? bird closed to harvest; and describing location, and date. We will consult with We have monitored subsistence how the Service’s existing authority of the Co-management Council when we harvest for the past 25 years through the emergency closure would be are considering an emergency closure. If use of annual household surveys in the implemented, if necessary, to protect we determine that an emergency closure most heavily used subsistence harvest Steller’s eiders. These regulations, is necessary, we will design it to areas, such as the Yukon–Kuskokwim implemented in accordance with minimize its impact on the subsistence Delta. In recent years, more intensive conservation measures, are considered harvest. surveys combined with outreach efforts the principal means by which the threat Yellow-billed Loon and Kittlitz’s focused on species identification have from shooting mortality of threatened Murrelet been added to improve the accuracy of eiders will be reduced. In addition, the information gathered from regions still emergency closure authority provides Yellow-billed loon (Gavia adamsii) reporting some subsistence harvest of another level of assurance if an and Kittlitz’s murrelet (Brachyramphus listed or candidate species. unexpected amount of Steller’s eider brevirostris) are listed as candidate shooting mortality occurs. species for Endangered Species Act Spectacled and Steller’s Eiders In-season, real-time harvest survey Listing. Their migration and breeding Spectacled eiders (Somateria fischeri) information obtained by the local distribution overlaps with where the and the Alaska-breeding population of community is desirable at Point Hope, spring and summer migratory bird hunt Steller’s eiders (Polysticta stelleri) are Point Lay, Wainwright, and Barrow. The is open in Alaska. Both species are listed as threatened species; their North Slope Borough has offered to closed to hunting, and there is no migration and breeding distribution assist with collection of this evidence Kittlitz’s murrelets are overlap with where the spring and information, including traveling to harvested. On the other hand, harvest summer subsistence migratory bird hunt hunters in the field and providing photo surveys have indicated harvest of is open in Alaska. Both species are documentation of some portion of the yellow-billed loons on the North Slope closed to hunting, although harvest harvest. In-season harvest monitoring and St. Lawrence Island. Some or all of surveys and Service documentation information will be used to the yellow-billed loons reported indicate both species have been taken in independently evaluate harvest survey harvested on the North Slope were several regions of Alaska. reports, as well as evaluate the efficacy found to be entangled loons salvaged The Service has dual goals and of regulations, conservation measures, from subsistence fishing nets as responsibilities for authorizing a and outreach efforts. described below. The Service will subsistence harvest while protecting On the North Slope in 2009, no continue outreach efforts in both areas migratory birds and threatened species. Steller’s eider harvest was reported, and in 2010, engaging partners to improve Although these goals continue to be no Steller’s eiders were found shot harvest estimates and decrease take of challenging, they are not irreconcilable, during in-season verification of the yellow-billed loons. providing sufficient recognition is given subsistence harvest. Based on these Consistent with the request of the to the need to protect threatened successes, the Service will continue the North Slope Borough Fish and Game species, measures to remedy same regulations for the 2010 season. Management Committee and the documented threats are implemented, The 2009 conservation measures will recommendation of the Co-management and the subsistence community and also be continued, although there will Council, this rule continues into 2010 other conservation partners commit to be some modification of the amount of the provisions originally established in working together. With these dual goals effort and emphasis each will receive. 2005 to allow subsistence use of yellow-
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billed loons (Gavia adamsii) paradisaea) eggs in the Yakutat Harvest harvested migratory birds for inadvertently entangled in subsistence area, from Icy Bay (Icy Cape to Point subsistence purposes during the spring fishing (gill) nets on the North Slope. Riou) and the coastal islands bordering and summer months. The Canada and Yellow-billed loons are culturally the Gulf of Alaska from Point Manby Mexico migratory bird treaties were important for the Inupiat Eskimo of the southeast to and including Dry Bay. The recently amended for the express North Slope for use in traditional dance Yakutat Tlingit Tribe requested that we purpose of allowing subsistence hunting regalia. A maximum of 20 yellow-billed remove this regulation at the April 2009 for migratory birds during the spring loons may be caught in 2010 under this Co-Management Council meeting, and summer. The amendments indicate provision. This provision does not stating that they will not be able to that the Service should issue regulations authorize intentional harvest of yellow- adequately monitor the tern subsistence allowing such hunting as provided in billed loons, but allows use of those take as requested by the Service, so they the Migratory Bird Treaty Act, 16 U.S.C. loons inadvertently entangled during would prefer to withdraw the regulation 712(1), expressly allows the Service to normal subsistence fishing activities. at this time. issue regulations allowing such hunting. Individual reporting to the North Slope See Statutory Authority section for more Summary of Public Involvement Borough Department of Wildlife is details. required by the end of each season. On November 20, 2009, we published One of the goals of the Protocol However, the North Slope Borough has in the Federal Register a proposed rule amending the Canada Treaty is to allow asked fishermen, through (74 FR 60228) to establish spring and a traditional subsistence hunt while also announcements on the radio and summer migratory bird subsistence improving conservation of migratory through personal contact, to report harvest regulations in Alaska for the birds through effective regulation of this inadvertent entanglements of loons as 2010 subsistence season. The proposed hunt. Although the Protocol sanctions a they occur, to better estimate the level rule provided for a public comment traditional subsistence hunt, the Parties of mortality caused by gill nets. In 2008, period of 60 days. We posted an did not intend to cause significant the North Slope Borough reported that announcement of the comment period increases in the take of migratory birds, one yellow-billed loon was found dead dates for the proposed rule, as well as relative to their continental population in a fishing net; one severely injured the rule itself and related historical sizes. If at some point the subsistence yellow-billed loon was observed by documents, on the Co-management harvest regulations result in Borough staff; and two were released Council’s Internet homepage. We issued significantly increased harvest, uninjured from fishing nets by Borough a press release announcing our request management strategies would be staff. for public comments and the pertinent implemented to ensure maintenance of deadlines for such comments, which continental populations. Endangered Species Act Consideration was faxed to the media Statewide. Comment: Fourteen commenters Section 7 of the Endangered Species Additionally, all documents were explained the true value of subsistence Act (16 U.S.C. 1536) requires the available on http://www.regulations.gov. to their way of life on the North Slope Secretary of the Interior to ‘‘review other In mid-December 2009, we received a —it includes both providing essential programs administered by him and request to extend the public comment food that is shared and preserves the utilize such programs in furtherance of period and hold a public hearing in age-old customs and traditions the purposes of the Act’’ and to ‘‘insure Barrow, Alaska. Based on this request, associated with it. that any action authorized, funded, or we held a public meeting to record Service Response: We respectfully carried out * * * is not likely to public comments on the proposed acknowledge the importance of the jeopardize the continued existence of regulations on January 12, 2010, at the customs and traditions that go along any endangered species or threatened Inupiat Heritage Center, 5421 North Star with the subsistence way of life in rural species or result in the destruction or St., Barrow. We also reopened the Alaska. The amendments to the adverse modification of [critical] habitat public comment period until February Migratory Bird Treaties with Canada ***.’’ We conducted an intra-agency 18, 2010, by publishing a document in and Mexico recognize the importance of consultation with the Service’s the January 25, 2010, Federal Register maintaining the cultural and traditional Fairbanks Field Office on this harvest as (75 FR 3888). The public was informed lifestyle of the indigenous inhabitants of it will be managed in accordance with that if they had submitted comments Alaska. Comment: One commenter requested this final rule and the conservation previously, they did not need to that the public comment period be measures. The consultation was resubmit because we had already extended. completed with an April 2, 2010, incorporated those comments into the Service Response: We reopened the biological opinion that concluded the public record and would consider them public comment period until February final rule and conservation measures are in preparation of our final 18, 2010, by publishing a document in not likely to jeopardize the continued determination. By the close of the the January 25, 2010, Federal Register existence of Steller’s eider, spectacled second public comment period on (75 FR 3888). The public was informed eider, yellow-billed loon, or Kittlitz’s February 18, 2010, we received that if they had submitted comments murrelet, or result in the destruction or responses from 20 individuals and 2 previously, they did not need to adverse modification of designated organizations. resubmit those comments because we critical habitat for Steller’s eider or Response to Public Comments had already incorporated them into the spectacled eider. public record and would consider them General Comments What Is Different in the Region-Specific in preparation of our final Regulations for 2010? Comment: We received two general determination. comments on the overall regulations Comment: Twelve commenters Aleutian and Arctic Terns that expressed strong opposition to the expressed continued disappointment We are removing the provision that concept of allowing any harvest of with the duck stamp and license issue opened a season from May 15 to June 30 migratory birds in Alaska. and that these requirements were for harvesting Aleutian (Onychoprion Service Response: For centuries, pushed upon them and were not aleutica) and arctic tern (Sterna indigenous inhabitants of Alaska have cultural and traditional. One commenter
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added that some of the elders in tribal members, but rather extends to all pertain more to law enforcement with Barrows are afraid to go out bird indigenous inhabitants of the no applicability to human health. hunting because of the threat of getting subsistence harvest areas, we are not Comment: One commenter expressed a ticket for no license or duck stamp. required to engage in formal concern that the growing numbers of One commenter explained the difficulty consultation with tribes. However, in bird watchers in the Barrow area of buying a State hunting license, keeping with the spirit of the President’s causing disturbance and affecting bird Federal duck stamp, and State duck memorandum of April 29, 1994, movement, and that the birdwatchers stamp for subsistence hunters on a ‘‘Government-to-Government Relations are there for pleasure, while subsistence limited income. Several commenters with Native American Tribal is a lifestyle. stated that purchasing a license and Governments’’ (59 FR 22951), and Service Response: The Gasline/ stamps is a burden for a family on a Executive Order 13175 (65 FR 67249; Cakeeater and Freshwater Lake roads fixed, low income. November 6, 2000) and Memorandum are primarily located on Native owned Service Response: The only way the on Tribal Consultations dated November or privately owned lands and use is requirement to possess a Federal 5, 2009, concerning consultation and managed by the Ukpeagvik Inupiat Migratory Bird Hunting and coordination with Indian Tribal Corporation, which does restrict use by Conservation Stamp could be changed is Governments, we conducted a public commercial birdwatching tours and through a congressional modification of hearing in Barrow, Alaska, for the professional photographers by requiring the Migratory Bird Hunting and express purpose of gathering public permits. Conservation Stamp Act (16 U.S.C. 718 comments on our November 20, 2009, Comment: One commenter expressed et seq.). Similarly, the requirement for proposed rule (74 FR 60228). We also that we should remove spectacled eiders an Alaska hunting license and conducted local meetings with the from the list of threatened species, Waterfowl Conservation Tag (duck Migratory Bird Task Force, which is because the population surveys the stamp) is codified in Alaska’s statutes comprised of Alaska Native Tribes, commenter had read stated that there and regulations and can be changed Alaska Native corporations, and Alaska were plenty of these birds worldwide, only by the State legislature. There are Native nonprofit organizations, to and that only a small percentage migrate a few exemptions. Hunters under the develop an outreach strategy for the along the North Slope. The commenter age of 16 or 60 years or older and coming spring and summer season. The stated that any subsistence take should qualified disabled veterans are not Service’s Alaska Regional Director also be allowed. required to purchase licenses and duck traveled to Barrow to meet with local Service Response: We intend to re- stamps to hunt. Residents who qualify leaders on the 2010 migratory bird evaluate the species’ status rangewide for a $5.00 low income license are not regulations and discuss how the local this year during a ‘‘5-year review’’ that required to purchase a duck stamp. community could be involved in the we are conducting on spectacled eiders. The Subsistence Division (AS conservation of listed eiders. One result of this review will be to 16.05.340(17)(B)) of the Alaska Comment: One commenter requested consider whether recent changes in the Department of Fish and Game the Service to consider, under Executive species’ status warrant reconsideration (Department) has the responsibility to Order 12898 on environmental justice, of its protection under the Endangered evaluate the impact of State and Federal the impacts of the regulations on the Species Act. It should be noted, laws and regulations on subsistence Inupiat subsistence lifestyle, because however, that standardized aerial hunting and, when corrective action is neither the proposed November 20, surveys indicate a decline in the indicated, make recommendations to 2009, proposed rule (74 FR 60228) nor number of spectacled eiders nesting on the Department, who in turn make the environmental assessment on which the North Slope. recommendations to the Alaska Board of they are based cite the order. Comment: One commenter brought up Game regarding amendment and repeal Service Response: The Service, that, under the Small Business of regulations affecting subsistence working with the Co-management Regulatory Enforcement Fairness Act, hunting. Council, already complies with Section the proposed rule stated that this action The Alaska Board of Game (AS 4–401 of this Executive Order, by will not have an annual effect on the 16.05.130(b)(2)–(4)) can establish annually collecting and publishing economy, but the commenter felt the regulations to exempt the requirement subsistence harvest data; however, the North Slope regulations would to purchase a waterfowl conservation Service does not have the responsibility negatively affect their subsistence tag (duck stamp) for waterfowl hunting to evaluate any potential health risks economy. in areas of the State not likely to benefit associated with the consumption of Service Response: The Small Business from the following programs: (1) The environmentally contaminated wild Regulatory Enforcement Fairness Act, 5 acquisition of wetlands important for foods. We have notified the public in U.S.C. 804(2), addresses potential waterfowl and public use of waterfowl, our regulations of the risks associated annual effects on the economy of $100 (2) waterfowl related projects approved with the potential presence of highly million or more, which is well beyond by the State commissioner, and (3) the pathogenic H5N1 bird flu in the the scope of the action contained in this administration of the waterfowl migratory birds being taken and Federal Register document. conservation program. consumed. The implication from the Comment: One commenter was Comment: Two commenters noted question appears to be more focused on concerned that under the Unfunded that the Federal Register document did the additional 2009 regulations imposed Mandates Reform Act, participation on not address Executive Order 13175, on 4 North Slope Inupiat communities regional management bodies and the Co- Government-to-Government Relations, within the North Coastal Zone. Our management Council requires travel and should have. regulations at 50 CFR 92.31(g)(5)(i), expenses for some Alaska Native Service Response: We did discuss which establish shooting hours, have organizations and local governments, Executive Order 13175 in the November the potential to safeguard human health but that the local tribal governments 20, 2009, proposed rule; see 74 FR and safety by preventing the use of have not been paid to participate. 60232–60233. In that discussion, we firearms when light levels are Service Response: As part of the Co- stated that because eligibility to hunt inadequate to ensure safe practices. The management Council, regional groups under these regulations is not limited to other two regulations under this section were formed to provide for local village
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and tribal representation. Grants are Chitina, and Chistochina, totaling 1,172 through consultation with the Recovery annually provided by the Service for people. Team and affected Co-management each regional representative and their Council partner organizations. One Comments on Original Region-Specific sponsoring organization to fund travel commenter added that there is no Regulations for village representatives to attend reliable way presented for estimating regional meetings twice a year. Comment: One commenter expressed how small numbers of inadvertently concern about global warming and how shot eiders would affect the Law Enforcement it is changing the timing of birds’ sustainability of the listed population. Comment: Six commenters said that departure, which causes problems with Service Response: The Service has the extra law enforcement presence in having fixed dates in the regulations, intentionally avoided identifying Barrow created extra tension in the specifically on the North Slope. specific thresholds for management community. Several commenters stated Service Response: The Service has actions, including possible closure of that subsistence hunters in Barrow have accommodated concerns about fixed the hunt, in order to preserve flexibility been impacted because of the presence regulatory dates in the Yukon- for decision makers. Although the of law enforcement. Another commenter Kuskokwim Delta region by allowing number of Steller’s eiders known to be said that the additional law enforcement the Regional Director or his designee to taken is one indication of the actual intimidated some people from going consult with field biologists and the threat, other information will be used to hunting. Another commenter suggested regional Native Representative group to help assess the threat and determine we use local people, the city council, announce different closure dates each whether further management actions are and the local Native government to year. A similar request could be made warranted. Information on the enforce regulations. for the North Slope during the open proportion of the hunters checked; Service Response: For several years, proposal period of November 1 through degree of cooperation with conservation the Service’s Office of Law Enforcement December 15 of each year. measures by the hunting community as Comment: Two commenters asked and Divisions of Endangered Species a whole, circumstances surrounding the that the Service continue using the and Migratory Bird Management have birds being shot; breeding status of the provisions proposed in 50 CFR worked with many groups and species; and the individuals taken, date 92.31(g)(4) (originally established in individuals in the greater North Slope of take, and other factors may all 2005) to allow subsistence use of area and Barrow specifically to provide contribute to the assessment of the yellow-billed loons inadvertently situation and identification of information on the regulatory entangled in subsistence fishing nets on appropriate measures in response. We requirements and enforcement of the the North Slope. believe identifying specific thresholds regulations. Our approach has focused Yellow-billed loons remain an would compromise the desire to balance on significant outreach efforts, important part of the Inupiaq culture. the dual objectives of supporting the including public meetings, radio talk Service Response: We are retaining hunt while adequately providing for the show opportunities, posted fliers, and the yellow-billed loon provision for the conservation of Steller’s eiders. brochures followed by a phased-in, North Slope for 2010. increased reliance on enforcement Comment: Two commenters What Is Different in the Region-Specific actions. The Service and its partners expressed concerns regarding the Regulations for 2010? have conducted outreach over the past special brant harvest for the community Comment: One commenter stated that couple of years to increase hunter of Wainwright. The commenter said that the final rule should note that North awareness. We expect hunter the hunt should be extended from 16 Coastal Zone regulations did not compliance with the regulations and days to a full month to allow for originate from the Co-management thus do not plan on having a continuous variables in weather and brant migration Council nor were they endorsed by the presence in Barrow this season. patterns. Another commenter requested Co-management Council. Who Is Eligible To Hunt Under These that the Service consider the extent to Service Response: The North Slope Regulations? which climate change is already Borough requested that the regulations limiting this harvest and attempt to go back to the published regulations for Comment: One commenter questioned accommodate Wainwright’s request to the 2008 season, eliminating the three what the purpose was of adding the change the special brant season. Steller’s eider regulations instituted for communities of Gulkana, Tazlina, Service Response: Proposals to change the 2009 season. The Co-management Copper Center, Mentasta Lake, and the regional regulations are accepted from Council recommended that we revert rest. The commenter questioned November 1 through December 15 of back to the 2008 regulations because the whether or not they hunt birds there. each year. The Service encourages the MOU between the Service and the North Service Response: In 2003, the interior commenters to submit a proposal, Slope partners was only enacted for Alaska communities in question working with their regional 2009, and did not address what to do for submitted petitions for inclusion in the representative, to address their concerns the 2010 subsistence season. subsistence migratory bird. Part of the during the next open proposal season. Comment: Three commenters petitioning process is to show evidence Comment: Three commenters were requested that we remove the of customary and traditional use of the concerned that the Service has not regulations added to protect Steller’s migratory bird resource. Upon review of defined criteria that would trigger eiders for the North Slope in 2009. The these petitions, the Co-management emergency regulations (50 CFR 92.32). commenter explained that Steller’s Council at its April and May 2003 A definition of what constitutes an eiders are not a targeted species. The meetings recommended that 13 ‘‘imminent threat’’ to Steller’s eider commenter added a recommendation to additional communities be included, conservation is not provided, nor is remove the shooting hours and any starting in 2004, based on the five there any indication of the geographic other provision that is not a customary criteria set forth in 50 CFR 92.5(c). The scale to which this imminent threat and traditional practice. Another Upper Copper River region included the applies. One commenter added that commenter added a concern that the communities of Gulkana, Gakona, critical thresholds or imminent threats proposed regulations may not be based Tazlina, Copper Center, Mentasta Lake, should be determined in advance on the best science, do not adequately
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consider the health and customs of the south of Point Hope, is not. The circumstances. The commenter further Inupiat people, and may increase (rather commenter added that at the January 12, pointed out that aside from than reduce) the mortality rates of 2010, hearing, the Service explained contravening Inupiaq culture, this rule threatened eider species. that it assumed that once the migratory is detrimental to the Service’s ability to Service Response: The Service has birds move farther south, they mingle monitor and investigate eider deaths. dual goals and responsibilities of with the Russian population. What Service Response: The Service authorizing a subsistence harvest while study has the Service done showing that encourages those that find a dead protecting migratory birds and the American and Russian populations Steller’s or Spectacled eider to threatened species. Although these goals mingle in the 72 miles between Point immediately report the finding to either were and continue to be challenging, Hope and Kivalina? Federal or State law enforcement. This they are not irreconcilable with Service Response: The Service is regulation does not prohibit the finder sufficient recognition of the need to implementing regulations to protect the from covering the carcass to protect it protect threatened species, measures to North American breeding population of from scavengers, mark the location, or remedy documented threats, and Steller’s eiders. The mixing of North rescue an injured eider. commitment from the subsistence American and Russian/Siberian- Comment: Ten commenters community and other conservation breeding birds likely changes in latitude specifically opposed the prohibition partners to work together toward these and longitude as seasonal weather and against hunting after sunset. One dual goals. With these dual goals in land and sea conditions change each commenter said that brant fly lower mind, the Service Regulations year. We do not know exactly where after sunset and are then easier for Committee decided to continue the 2009 this will occur in 2010, as no definitive people in Wainwright to shoot. Another provisions that were designed to help biological information on mixing rates commenter said that during the day it is protect Steller’s eiders during their and locations exists at this time. To harder to hunt and in the evenings it is summer presence on the North Slope. obtain that information with current cooler, and that ducks fly more in the Comment: One commenter challenged biological investigative techniques cooler hours. Another commenter that there is little scientific information would require handling a significant explained that shooting hours are not on which the proposed regulations are percentage of the fewer than 600 customary and traditional and suggested based. Little is known regarding the estimated North American breeding that the Service look into traditional migratory route, winter habitat, and birds, which in our estimation could knowledge relating to weather nesting range of Steller’s eiders, such negatively impact the population and conditions and flight patterns before that it is difficult to assess their actual delay recovery. In balancing our dual imposing hunting hours. Two population status. As FWS stated during goals of recovery while providing commenters also questioned the science the January 12, 2010, hearing, the hunting opportunities for the other behind justifying the shooting hours recovery goal in terms of an ideal species that are open to harvest, we are restrictions. population number for Steller’s eiders attempting to minimize the impact of Service Response: The Service is has yet to be set. The regulations the regulations to those areas in which always receptive to the use of traditional proposed for four villages on the North we are confident the majority of Steller’s and ecological knowledge in addressing Slope differ significantly from those eiders encountered are North American environmental issues, and welcomes proposed for the rest of Alaska. Without breeding birds. We believe the Steller’s any local input that would aid in science to justify this difference, the eiders around the four affected villages finding a solution for Steller’s eiders regulations appear arbitrary. are comprised of North American being mistakenly shot. We designed the Service Response: The Service’s breeding birds, and therefore we are shooting hours restriction to eliminate Migratory Bird Division has conducted applying and limiting the regulations hunting under poor visibility, to aerial surveys of the Arctic Coastal Plain specific to Steller’s eider conservation to improve species’ identification, and to annually since 1993 to monitor Steller’s those areas. reduce the probability of mistakenly and spectacled eider populations. These Comment: Two commenters oppose shooting and crippling Steller’s eiders. surveys, in addition to aerial surveys by the North Slope regulation that requires The Service believes that bird Alaska Biological Research, Inc. and hunters to present any birds taken upon identification prior to shooting is key to ground searches by Service personnel request by a Service law enforcement preventing protected species from being near Barrow, provide an index of officer. One commenter said they accidentally taken during the harvest. population size and nesting range on the thought this activity should require a The determination of shooting hours North Slope. Furthermore, telemetry search warrant. Another commenter for the individual communities used data from Steller’s eider fitted with opined that this regulation has caused data provided by the Naval Meteorology transmitters in Barrow in 2000 and 2001 some hunters to reduce their activity and Oceanography Command (NMOC). revealed migration corridors, molting because of perceived intrusion. Tables illustrating civil twilight times areas, and movements between Service Response: Our ability to by date and location were used to wintering areas, which are also monitor and verify the ongoing harvest determine the dates when shooting hour surveyed aerially each spring by Service is an important component of the restrictions would begin in August. personnel. Given the best available conservation strategy that we developed These restrictions were initiated on the scientific information, the nesting range in 2009 to enable us to issue the annual dates when periods of ‘‘complete and migratory route of Alaska breeding regulations to open the subsistence darkness’’ begin to occur. For Steller’s eider support the position that harvest. This requirement enables our consistency in managing bird hunting, listed Steller’s eiders are vulnerable to officers to effectively verify harvest the beginning and ending times of harvest by subsistence hunters at Point composition while contacting hunters in shooting hours in these subsistence Hope, Point Lay, Wainwright, and the field. regulations parallel those found in 50 Barrow. Comment: One commenter stated 50 CFR 20.102, which applies for all Comment: One commenter said that it CFR 92.31(g)(5)(ii) would prohibit migratory bird hunting on the North is difficult to understand why the North hunters (and even non-Service Slope after September 1st of each year. Slope villages are subject to hunting biologists) from touching Steller’s eiders These times are based on NMOC tables hours, while Kivalina, just 72 miles (whether dead or injured) under any for sunrise and sunset. The Service
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acknowledges that weather conditions which authorizes the Secretary of the harvesting patterns. The commodities also add a degree of variability in light Interior, in accordance with the treaties being regulated under this rule are conditions for shooting, but did not with Canada, Mexico, Japan, and Russia, migratory birds. This rule deals with want to address this in the spirit of to ‘‘issue such regulations as may be legalizing the subsistence harvest of keeping the regulation as simple as necessary to assure that the taking of migratory birds and, as such, does not possible. migratory birds and the collection of involve commodities traded in the Comment: One commenter brought up their eggs, by the indigenous inhabitants marketplace. A small economic benefit the 5-mile boundary used in delineating of the State of Alaska, shall be permitted from this rule derives from the sale of the North Coastal Zone. The commenter for their own nutritional and other equipment and ammunition to carry out thought that it meant no hunting within essential needs, as determined by the subsistence hunting. Most, if not all, the zone and complained about that. Secretary of the Interior, during seasons businesses that sell hunting equipment Service Response: The 5-mile established so as to provide for the in rural Alaska would qualify as small boundary for the North Coastal Zone preservation and maintenance of stocks businesses. We have no reason to applies only to the three regulations of migratory birds.’’ believe that this rule will lead to a added in 2009, including presentation disproportionate distribution of of birds upon request; possession Required Determinations benefits. prohibition of any illegally taken bird; Regulatory Planning and Review (b) Will not cause a major increase in and daylight-related shooting hours. (Executive Order 12866) costs or prices for consumers; Migratory bird hunting is not otherwise individual industries; Federal, State, or restricted within that 5-mile zone. The Office of Management and Budget local government agencies; or Comment: One commenter opined (OMB) has determined that this rule is geographic regions. This rule does not that targeting the North Slope with the not significant and has not reviewed deal with traded commodities and, special 2009 eider regulations was this rule under Executive Order 12866 therefore, does not have an impact on prejudiced, since those regulations were (E.O. 12866). OMB bases its prices for consumers. not equally applied throughout the determination upon the following four (c) Does not have significant adverse birds’ flyway range. criteria: effects on competition, employment, Service Response: We do consider and (a) Whether the rule will have an investment, productivity, innovation, or review the regulations Statewide annual effect of $100 million or more on the ability of U.S.-based enterprises to regarding species protected under the the economy or adversely affect an compete with foreign-based enterprises. Endangered Species Act, and all other economic sector, productivity, jobs, the This rule deals with the harvesting of federally authorized or funded environment, or other units of the wildlife for personal consumption. It activities. In the case of the Steller’s government. does not regulate the marketplace in any eider, the regulations apply during the (b) Whether the rule will create way to generate effects on the economy subsistence harvest, when the listed inconsistencies with other Federal or the ability of businesses to compete. agencies’ actions. population of Steller’s eiders are Unfunded Mandates Reform Act migrating and breeding on the North (c) Whether the rule will materially Slope. affect entitlements, grants, user fees, We have determined and certified Comment: One commenter explained loan programs, or the rights and under the Unfunded Mandates Reform that they did not like how Steller’s obligations of their recipients. Act (2 U.S.C. 1501 et seq.) that this rule eiders were shot in Barrow in 2008, but (d) Whether the rule raises novel legal will not impose a cost of $100 million that the outlying communities of Point or policy issues. or more in any given year on local, State, or tribal governments or private Lay, Wainwright, and Point Hope Regulatory Flexibility Act should not have been punished with entities. The rule does not have a additional regulations for what The Department of the Interior significant or unique effect on State, happened in Barrow. certifies that this rule will not have a local, or tribal governments or the Service Response: We have limited significant economic impact on a private sector. A statement containing the Steller’s eider specific regulations to substantial number of small entities as the information required by the the villages in the geographic area used defined under the Regulatory Flexibility Unfunded Mandates Reform Act is not by migrating, and possibly nesting, Act (5 U.S.C. 601 et seq.). An initial required. Participation on regional Alaska-breeding Steller’s eiders (the regulatory flexibility analysis is not management bodies and the Co- listed population). Although required. Accordingly, a Small Entity management Council will require travel approximately 60% of the listed Compliance Guide is not required. The expenses for some Alaska Native population is thought to nest within 60 rule legalizes a pre-existing subsistence organizations and local governments. In kilometers of Barrow, the four coastal activity, and the resources harvested addition, they will assume some villages are included because the listed will be consumed by the harvesters or expenses related to coordinating population migrates past all those persons within their local community. involvement of village councils in the villages twice during the subsistence regulatory process. Total coordination Small Business Regulatory Enforcement and travel expenses for all Alaska harvest. We would like to know more Fairness Act about the actual risk to listed eiders Native organizations are estimated to be from shooting in the villages of Point This rule is not a major rule under 5 less than $300,000 per year. In the Lay, Point Hope, and Wainwright and U.S.C. 804(2), the Small Business Notice of Decision (65 FR 16405; March would welcome collection of village- Regulatory Enforcement Fairness Act. 28, 2000), we identified 12 partner specific subsistence harvest information This rule: organizations (Alaska Native nonprofits to assist in setting future regulations. (a) Will not have an annual effect on and local governments) to administer the economy of $100 million or more. It the regional programs. The Alaska Statutory Authority will legalize and regulate a traditional Department of Fish and Game will also We derive our authority to issue these subsistence activity. It will not result in incur expenses for travel to Co- regulations from the Migratory Bird a substantial increase in subsistence management Council and regional Treaty Act of 1918, 16 U.S.C. 712(1), harvest or a significant change in management body meetings. In
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addition, the State of Alaska will be that there are no significant effects. The required to respond to a collection of required to provide technical staff rule will legally recognize the information unless it displays a support to each of the regional subsistence harvest of migratory birds currently valid OMB control number. management bodies and to the Co- and their eggs for indigenous National Environmental Policy Act management Council. Expenses for the inhabitants including tribal members. In Consideration State’s involvement may exceed 1998, we began a public involvement $100,000 per year, but should not process to determine how to structure The annual regulations and options exceed $150,000 per year. When management bodies in order to provide were considered in the environmental funding permits, we make annual grant the most effective and efficient assessment, ‘‘Managing Migratory Bird agreements available to the partner involvement of subsistence users. We Subsistence Hunting in Alaska: Hunting organizations and the Alaska began by publishing in the Federal Regulations for the 2010 Spring/ Department of Fish and Game to help Register stating that we intended to Summer Harvest,’’ October 9, 2009. offset their expenses. establish management bodies to Copies are available from the person implement the spring and summer Takings (Executive Order 12630) listed under FOR FURTHER INFORMATION subsistence harvest (63 FR 49707, CONTACT or at http:// Under the criteria in Executive Order September 17, 1998). We held meetings www.regulations.gov. 12630, this rule does not have with the Alaska Department of Fish and significant takings implications. This Game and the Native Migratory Bird Energy Supply, Distribution, or Use rule is not specific to particular land Working Group to provide information (Executive Order 13211) ownership, but applies to the harvesting regarding the amended treaties and to of migratory bird resources throughout listen to the needs of subsistence users. Executive Order 13211 requires Alaska. A takings implication The Native Migratory Bird Working agencies to prepare Statements of assessment is not required. Group was a consortium of Alaska Energy Effects when undertaking certain Natives formed by the Rural Alaska actions. This is not a significant Federalism (Executive Order 13132) Community Action Program to represent regulatory action under this Executive Under the criteria in Executive Order Alaska Native subsistence hunters of Order; it would allow only for 13132, this rule does not have sufficient migratory birds during the treaty traditional subsistence harvest and federalism implications to warrant the negotiations. We held forums in Nome, would improve conservation of preparation of a Federalism Assessment. Kotzebue, Fort Yukon, Allakaket, migratory birds by allowing effective We discuss effects of this rule on the Naknek, Bethel, Dillingham, Barrow, regulation of this harvest. Further, this State of Alaska in the Unfunded and Copper Center. We led additional rule is not expected to significantly Mandates Reform Act section above. We briefings and discussions at the annual affect energy supplies, distribution, or worked with the State of Alaska to meeting of the Association of Village use. Therefore, this action is not a develop these regulations. Therefore, a Council Presidents in Hooper Bay and significant energy action under Federalism Assessment is not required. for the Central Council of Tlingit & Executive Order 13211, and no Statement of Energy Effects is required. Civil Justice Reform (Executive Order Haida Indian Tribes in Juneau. On March 28, 2000, we published in 12988) Administrative Procedure Act the Federal Register (65 FR 16405) the The Department, in promulgating this Notice of Decision entitled, The Administrative Procedure Act (5 rule, has determined that it will not ‘‘Establishment of Management Bodies U.S.C. 553(d)) requires an agency to unduly burden the judicial system and in Alaska To Develop Recommendations publish a final rule in most cases at least that it meets the requirements of Related to the Spring/Summer 30 days before the rule is to become sections 3(a) and 3(b)(2) of Executive Subsistence Harvest of Migratory Birds.’’ effective. The Act also allows Order 12988. This notice described the way in which publication less than 30 days before the Government-to-Government Relations management bodies would be effective date if the agency finds that With Native American Tribal established and organized. Based on the there is a good cause for doing so. (5 Governments wide range of views expressed on the U.S.C. 553(d)(3)) The Department of the options document, the decision Interior finds that good cause exists for Because eligibility to hunt under incorporated key aspects of two of the making this rule effective upon these regulations is not limited to tribal modules. The decision established one publication because: members, but rather extends to all statewide management body consisting indigenous inhabitants of the of 1 Federal member, 1 State member, —This rule is necessary to allow subsistence harvest areas, we are not and 7–12 Alaska Native members, with continuation of customary and required to engage in formal all components serving as equals. traditional subsistence uses of consultation with tribes. However, in migratory birds in Alaska; and Paperwork Reduction Act keeping with the spirit of the President’s —Delaying publication of this rule memorandum of April 29, 1994, This rule has been examined under would impose hardship upon those ‘‘Government-to-Government Relations the Paperwork Reduction Act of 1995 who harvest migratory birds for With Native American Tribal and does not contain any new subsistence use. Governments’’ (59 FR 22951), and collections of information that require Executive Order 13175 (65 FR 67249; Office of Management and Budget List of Subjects in 50 CFR Part 92 November 6, 2000), concerning approval. OMB has approved our Exports, Hunting, Imports, Reporting consultation and coordination with collection of information associated and recordkeeping requirements, Indian Tribal Governments, we with the voluntary annual household Subsistence, Treaties, Wildlife. conducted meetings with the affected surveys used to determine levels of tribes and tribal nonprofit organizations subsistence take. The OMB control ■ For the reasons set out in the to discuss the changes in the regulations number is 1018–0124, which expires preamble, we amend title 50, chapter I, and determine possible effects on tribes March 31, 2010. An agency may not subchapter G, of the Code of Federal or trust resources, and have determined conduct or sponsor and a person is not Regulations as follows:
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PART 92—MIGRATORY BIRD (1) Season: April 2–June 14 and July 19 and July 20–August 31 for all other SUBSISTENCE HARVEST IN ALASKA 16–August 31 (general season); April 2– birds. July 15 for seabird egg gathering only. (ii) Closure: June 30–July 29 for ■ 1. The authority citation for part 92 (2) Closure: June 15–July 15 (general seabirds; June 20–July 19 for all other continues to read as follows: season); July 16–August 31 (seabird egg birds. Authority: 16 U.S.C. 703–712. gathering). (iii) Special Black Brant Hunting (d) Bering Strait/Norton Sound Opening: From June 20–July 5. The Subpart D—Annual Regulations Region. open area would consist of the Governing Subsistence Harvest (1) Stebbins/St. Michael Area (Point coastline, from mean high water line Romanof to Canal Point): outward to include open water, from ■ 2. In subpart D, add § 92.31 to read as (i) Season: April 15–June 14 and July Nokotlek Point east to longitude line follows: 16–August 31. 158°30′ W. This includes Peard Bay, § 92.31 Region-specific regulations. (ii) Closure: June 15–July 15. Kugrua Bay, and Wainwright Inlet, but (2) Remainder of the region: not the Kuk and Kugrua river drainages. The 2010 season dates for the eligible (i) Season: April 2–June 14 and July (2) Northern Unit (At Peard Bay, subsistence harvest areas are as follows: 16–August 31 for waterfowl; April 2– everything east of the longitude line (a) Aleutian/Pribilof Islands Region. July 19 and August 21–August 31 for all 158°30′ W and north of the latitude line (1) Northern Unit (Pribilof Islands): other birds. 70°45′ N to west bank of the Ikpikpuk (i) Season: April 2–June 30. (ii) Closure: June 15–July 15 for River, and everything north of the (ii) Closure: July 1–August 31. waterfowl; July 20–August 20 for all latitude line 69°45′ N between the west (2) Central Unit (Aleut Region’s other birds. bank of the Ikpikpuk River to the east eastern boundary on the Alaska (e) Kodiak Archipelago Region, except bank of Sagavinirktok River): Peninsula westward to and including for the Kodiak Island roaded area, (i) Season: April 6–June 6 and July 7– Unalaska Island): which is closed to the harvesting of August 31 for king and common eiders; (i) Season: April 2–June 15 and July migratory birds and their eggs. The April 2–June 15 and July 16–August 31 16–August 31. closed area consists of all lands and for all other birds. (ii) Closure: June 16–July 15. waters (including exposed tidelands) (ii) Closure: June 7–July 6 for king and (iii) Special Black Brant Season east of a line extending from Crag Point common eiders; June 16–July 15 for all Closure: August 16–August 31, only in in the north to the west end of Saltery other birds. Izembek and Moffet lagoons. Cove in the south and all lands and (3) Eastern Unit (East of eastern bank (iv) Special Tundra Swan Closure: All water south of a line extending from of the Sagavanirktok River): hunting and egg gathering closed in Termination Point along the north side (i) Season: April 2–June 19 and July units 9(D) and 10. of Cascade Lake extending to Anton 20–August 31. (3) Western Unit (Umnak Island west Larson Bay. Waters adjacent to the (ii) Closure: June 20–July 19. to and including Attu Island): closed area are closed to harvest within (4) All Units: Yellow-billed loons. (i) Season: April 2–July 15 and August 500 feet from the water’s edge. The Annually, up to 20 yellow-billed loons 16–August 31. offshore islands are open to harvest. total for the region may be inadvertently (ii) Closure: July 16–August 15. (1) Season: April 2–June 30 and July entangled in subsistence fishing nets in (b) Yukon/Kuskokwim Delta Region. 31–August 31 for seabirds; April 2–June the North Slope Region and kept for (1) Season: April 2–August 31. 20 and July 22–August 31 for all other subsistence use. Individuals must report (2) Closure: 30-day closure dates to be birds. each yellow-billed loon inadvertently announced by the Service’s Alaska (2) Closure: July 1–July 30 for entangled while subsistence gill net Regional Director or his designee, after seabirds; June 21–July 21 for all other fishing to the North Slope Borough consultation with local subsistence birds. Department of Wildlife Management by users, field biologists, and the (f) Northwest Arctic Region. the end of the season. Association of Village Council (1) Season: April 2–June 9 and August (5) North Coastal Zone (Cape President’s Waterfowl Conservation 15–August 31 (hunting in general); Thompson north to Point Hope and east Committee. This 30-day period will waterfowl egg gathering May 20–June 9 along the Arctic Ocean coastline around occur between June 1 and August 15 of only; seabird egg gathering May 20–July Point Barrow to Ross Point, including each year. A press release announcing 12 only; hunting molting/non-nesting Iko Bay, and 5 miles inland). the actual closure dates will be waterfowl July 1–July 31 only. (i) Migratory bird hunting is permitted forwarded to regional newspapers and (2) Closure: June 10–August 14, from one-half hour before sunrise until radio and television stations and posted except for the taking of seabird eggs and sunset, during August. in village post offices and stores. molting/non-nesting waterfowl as (ii) No person may at any time, by any (3) Special Black Brant and Cackling provided in paragraph (f)(1) of this means, or in any manner, possess or Goose Season Hunting Closure: From section. have in custody any migratory bird or the period when egg laying begins until (g) North Slope Region. part thereof, taken in violation of young birds are fledged. Closure dates to (1) Southern Unit (Southwestern subpart C and D of this part. be announced by the Service’s Alaska North Slope regional boundary east to (iii) Upon request from a Service law Regional Director or his designee, after Peard Bay, everything west of the enforcement officer, hunters taking, consultation with field biologists and longitude line 158°30′ W and south of attempting to take, or transporting the Association of Village Council the latitude line 70°45′ N to the west migratory birds taken during the President’s Waterfowl Conservation bank of the Ikpikpuk River, and subsistence harvest season must present Committee. A press release announcing everything south of the latitude line them to the officer for species the actual closure dates will be 69°45′ N between the west bank of the identification. forwarded to regional newspapers and Ikpikpuk River to the east bank of (h) Interior Region. radio and television stations and posted Sagavinirktok River): (1) Season: April 2–June 14 and July in village post offices and stores. (i) Season: April 2–June 29 and July 16–August 31; egg gathering May 1–June (c) Bristol Bay Region. 30–August 31 for seabirds; April 2–June 14 only.
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(2) Closure: June 15–July 15. Skwentna River and west of the Yentna (ii) Closure: July 1–August 31. (i) Upper Copper River Region River, and August 1–31—That portion ■ 3. In subpart D, add § 92.32 to read as (Harvest Area: Units 11 and 13) (Eligible of Unit 16(B) south of the Beluga River, follows: communities: Gulkana, Chitina, Tazlina, Beluga Lake, and the Triumvirate Copper Center, Gakona, Mentasta Lake, Glacier. § 92.32 Emergency regulations to protect Chistochina and Cantwell). (2) Closure: June 1–July 31. Steller’s eiders. (1) Season: April 15–May 26 and June (l) Southeast Alaska. Upon finding that continuation of 27–August 31. (1) Community of Hoonah (Harvest these subsistence regulations would (2) Closure: May 27–June 26. area: National Forest lands in Icy Strait (3) The Copper River Basin and Cross Sound, including Middle Pass pose an imminent threat to the communities listed above also Rock near the Inian Islands, Table Rock conservation of threatened Steller’s documented traditional use harvesting in Cross Sound, and other traditional eiders (Polysticta stelleri), the U.S. Fish birds in Unit 12, making them eligible locations on the coast of Yakobi Island. and Wildlife Service Alaska Regional to hunt in this unit using the seasons The land and waters of Glacier Bay Director, in consultation with the Co- specified in paragraph (h) of this National Park remain closed to all management Council, will immediately section. subsistence harvesting (50 CFR under § 92.21 take action as is necessary (j) Gulf of Alaska Region. 100.3(a)). to prevent further take. Regulation (1) Prince William Sound Area (i) Season: Glaucous-winged gull egg changes implemented could range from (Harvest area: Unit 6 [D]), (Eligible gathering only: May 15–June 30. a temporary closure of duck hunting in Chugach communities: Chenega Bay, (ii) Closure: July 1–August 31. a small geographic area to large-scale Tatitlek). (2) Communities of Craig and regional or State-wide long-term (i) Season: April 2–May 31 and July closures of all subsistence migratory 1–August 31. Hydaburg (Harvest area: Small islands bird hunting. These closures or (ii) Closure: June 1–30. and adjacent shoreline of western Prince (2) Kachemak Bay Area (Harvest area: of Wales Island from Point Baker to temporary suspensions will remain in Unit 15[C] South of a line connecting Cape Chacon, but also including effect until the Regional Director, in the tip of Homer Spit to the mouth of Coronation and Warren islands). consultation with the Co-management Fox River) (Eligible Chugach (i) Season: Glaucous-winged gull egg Council, determines that the potential Communities: Port Graham, Nanwalek). gathering only: May 15–June 30. for additional Steller’s eiders to be taken (i) Season: April 2–May 31 and July (ii) Closure: July 1–August 31. no longer exists. (3) Community of Yakutat (Harvest 1–August 31. Dated: April 1, 2010. (ii) Closure: June 1–30. area: Icy Bay (Icy Cape to Point Riou), (k) Cook Inlet (Harvest area: Portions and coastal lands and islands bordering Thomas L. Strickland, of Unit 16[B] as specified below) the Gulf of Alaska from Point Manby Assistant Secretary for Fish and Wildlife and (Eligible communities: Tyonek only). southeast to Dry Bay). Parks. (1) Season: April 2–May 31—That (i) Season: Glaucous-winged gull egg [FR Doc. 2010–8382 Filed 4–12–10; 8:45 am] portion of Unit 16(B) south of the gathering: May 15–June 30. BILLING CODE 4310–55–P
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Proposed Rules Federal Register Vol. 75, No. 70
Tuesday, April 13, 2010
This section of the FEDERAL REGISTER Ground Floor, Room W12–140, except Federal holidays. The AD docket contains notices to the public of the proposed Washington, DC 20590–0001. contains this proposed AD, the issuance of rules and regulations. The • Hand Delivery: Deliver to Mail regulatory evaluation, any comments purpose of these notices is to give interested address above between 9 a.m. and 5 received, and other information. The persons an opportunity to participate in the p.m., Monday through Friday, except street address for the Docket Operations rule making prior to the adoption of the final rules. Federal holidays. office (phone (800) 647–5527) is the • Fax: (202) 493–2251. same as the Mail address provided in You can get the service information the ADDRESSES section. Comments will DEPARTMENT OF TRANSPORTATION identified in this proposed AD from be available in the AD docket shortly McCauley Propeller Systems, P.O. Box after receipt. Federal Aviation Administration 7704, Wichita, KS 67277–7704; phone (800) 621–7767. Discussion 14 CFR Part 39 FOR FURTHER INFORMATION CONTACT: Jeff On September 24, 2007, we issued a proposal to amend part 39 of the Code [Docket No. FAA–2007–29176; Directorate Janusz, Aerospace Engineer, Wichita Identifier 2007–NE–38–AD] Aircraft Certification Office, FAA, Small of Federal Regulations (14 CFR part 39) Airplane Directorate, 1801 Airport to add an AD, for McCauley Propeller RIN 2120–AA64 Road, Wichita, KS 67209; e-mail: Systems model 4HFR34C653/L106FA [email protected]; phone: (316) 946– propellers. The proposed AD published Airworthiness Directives; McCauley 4148; fax: (316) 946–4107. as an NPRM in the Federal Register on Propeller Systems Model 4HFR34C653/ SUPPLEMENTARY INFORMATION: September 28, 2007 (72 FR 55120). That L106FA Propellers NPRM proposed to require a onetime AGENCY: Federal Aviation Comments Invited FPI and ECI of the propeller hub for Administration (FAA), Department of We invite you to send us any written cracks. That NPRM resulted from Transportation (DOT). relevant data, views, or arguments reports of 3 hubs found cracked during ACTION: Supplemental notice of regarding this proposal. Send your propeller overhaul. proposed rulemaking (NPRM); comments to an address listed under Since we issued that NPRM, we reopening of comment period. ADDRESSES. Include ‘‘Docket No. FAA– received reports of 7 additional hubs 2007–29176; Directorate Identifier found cracked during propeller SUMMARY: This supplemental NPRM 2007–NE–38–AD’’ in the subject line of overhaul. That brings the total of hubs revises an earlier proposed your comments. We specifically invite that have had cracks located in the hub airworthiness directive (AD), for comments on the overall regulatory, socket region, in the area of the outer McCauley Propeller Systems model economic, environmental, and energy bearing race press-fit surfaces, to 10. To 4HFR34C653/L106FA propellers. That aspects of the proposed AD. We will date, the cause of these cracks appears proposed AD would have required a consider all comments received by the to be fretting damage between the outer onetime fluorescent penetrant closing date and may amend the bearing race and the hub surface. This inspection (FPI) and eddy current proposed AD in light of those condition, if not corrected, could result inspection (ECI) of the propeller hub for comments. in failure of the propeller hub, which cracks. That proposed AD resulted from We will post all comments we could cause blade separation, damage to reports of 3 hubs found cracked during receive, without change, to http:// the airplane, and loss of control of the propeller overhaul. This supplemental www.regulations.gov, including any airplane. NPRM would require the same personal information you provide. We Also since we issued that NPRM, we inspections. This supplemental NPRM will also post a report summarizing each eliminated the reporting requirement to results from reports of 7 additional hubs substantive verbal contact with FAA McCauley Propeller Systems. found cracked during propeller personnel concerning this proposed AD. Comments overhaul, totaling 10 cracked hubs. We Using the search function of the Web are proposing this supplemental AD to site, anyone can find and read the We provided the public the prevent failure of the propeller hub, comments in any of our dockets, opportunity to participate in the which could cause blade separation, including, if provided, the name of the development of that proposed AD. We damage to the airplane, and loss of individual who sent the comment (or have considered the comment received control of the airplane. signed the comment on behalf of an on the original NPRM. DATES: We must receive any comments association, business, labor union, etc.). Proposed AD Should Also Set a Time on this proposed AD by June 14, 2010. You may review the DOT’s complete Limit ADDRESSES: Use one of the following Privacy Act Statement in the Federal addresses to comment on this proposed Register published on April 11, 2000 One commenter, a private citizen, AD. (65 FR 19477–78). recommends that the proposed AD also • Federal eRulemaking Portal: Go to set a time limit on when inspections Examining the AD Docket http://www.regulations.gov. Follow the should take place. The commenter online instructions for sending your You may examine the AD docket on recommends an hour limit, and a year- comments electronically. the Internet at http:// old limit. We infer that the commenter • Mail: Docket Management Facility: www.regulations.gov; or in person at the is asking for a calendar time limit as U.S. Department of Transportation, 1200 Docket Operations office between 9 a.m. well as the proposed operating hour New Jersey Avenue, SE., West Building and 5 p.m., Monday through Friday, time-since-new limit, to ensure the
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inspection occurs in a more timely the Administrator finds necessary for Applicability manner. safety in air commerce. This regulation (c) This AD applies to McCauley Propeller We do not agree. The hub failure is within the scope of that authority Systems model 4HFR34C653/L106FA mechanism appears to be fretting because it addresses an unsafe condition propellers. damage which results in crack that is likely to exist or develop on Unsafe Condition formation and subsequent growth. products identified in this rulemaking Propellers that are not operating do not action. (d) This AD results from reports of 10 hubs accumulate fretting damage. Therefore, found cracked during propeller overhaul. We Regulatory Findings are issuing this AD to prevent failure of the we cannot justify the use of calendar We have determined that this propeller hub, which could cause blade time. We did not change the proposed separation, damage to the airplane, and loss AD. proposed AD would not have federalism of control of the airplane. implications under Executive Order Relevant Service Information 13132. This proposed AD would not Compliance We have reviewed and approved the have a substantial direct effect on the (e) You are responsible for having the technical contents of McCauley States, on the relationship between the actions required by this AD performed within Propeller Systems Alert Service Bulletin national Government and the States, or the compliance times specified unless the (ASB) No. ASB254, dated August 20, on the distribution of power and actions have already been done. 2007. That ASB describes procedures responsibilities among the various (f) For propeller hubs with 6,000 or more for a onetime FPI and ECI of propeller levels of government. operating hours time-since-new (TSN) on the hubs for cracks. For the reasons discussed above, I effective date of this AD, perform the certify that the proposed AD: procedures in paragraphs (h) through (k) of FAA’s Determination and Requirements this AD within 100 operating hours time-in- 1. Is not a ‘‘significant regulatory of the Proposed AD service (TIS) after the effective date of this action’’ under Executive Order 12866; AD. We have evaluated all pertinent 2. Is not a ‘‘significant rule’’ under the information and identified an unsafe (g) For propeller hubs with fewer than DOT Regulatory Policies and Procedures 6,000 operating hours TSN on the effective condition that is likely to exist or (44 FR 11034, February 26, 1979); and date of this AD, perform the procedures in develop on other products of this same 3. Would not have a significant paragraphs (h) through (k) of this AD before type design. We are proposing this AD, economic impact, positive or negative, the propeller hub reaches 6,100 operating which would require a onetime FPI and on a substantial number of small entities hours TSN. ECI of propeller hubs for cracks. The under the criteria of the Regulatory Onetime Propeller Hub Inspection proposed AD would require you to use Flexibility Act. the service information described We prepared a regulatory evaluation (h) Remove and disassemble the propeller, previously to perform these actions. of the estimated costs to comply with and etch the propeller hub, using paragraphs 1.A. through 2.D. of the Accomplishment Interim Action this proposed AD. You may get a copy Instructions of McCauley Propeller Systems of this summary at the address listed Alert Service Bulletin No. ASB254, dated These actions are interim actions and under ADDRESSES. we may take further rulemaking actions August 20, 2007. in the future. List of Subjects in 14 CFR Part 39 (i) Perform a onetime fluorescent penetrant inspection (FPI) of the propeller hub, using Costs of Compliance Air transportation, Aircraft, Aviation, paragraphs 3.A. through 3.G. of the Incorporation by reference, Safety. Accomplishment Instructions of McCauley We estimate that this supplemental Propeller Systems Alert Service Bulletin No. The Proposed Amendment proposed AD would affect 128 ASB254, dated August 20, 2007. propellers installed on airplanes of U.S. Under the authority delegated to me (j) For hubs that pass the FPI, perform a registry. We also estimate that it would by the Administrator, the Federal onetime eddy current inspection of the take about 41.5 work-hours per Aviation Administration proposes to propeller hub, using paragraphs 4.A. through propeller to perform the proposed amend 14 CFR part 39 as follows: 4.F. of the Accomplishment Instructions of actions, and that the average labor rate McCauley Propeller Systems Alert Service is $85 per work-hour. Based on these PART 39—AIRWORTHINESS Bulletin No. ASB254, dated August 20, 2007. figures, we estimate the total cost of the DIRECTIVES (k) Remove cracked hubs from service and proposed AD to U.S. operators to be any other propeller parts found cracked. 1. The authority citation for part 39 $451,520. Previous Credit continues to read as follows: Authority for This Rulemaking (l) If you performed the onetime inspection Authority: 49 U.S.C. 106(g), 40113, 44701. of the propeller hub using McCauley Title 49 of the United States Code § 39.13 [Amended] Propeller Systems Service Bulletin No. specifies the FAA’s authority to issue SB238A, or Alert Service Bulletin ASB254, rules on aviation safety. Subtitle I, 2. The FAA amends § 39.13 by adding both dated August 20, 2007, before the section 106, describes the authority of the following new airworthiness effective date of this AD, you have satisfied the FAA Administrator. Subtitle VII, directive: the inspection requirements of this AD. Aviation Programs, describes in more McCauley Propeller Systems: Docket No. Interim Action detail the scope of the Agency’s FAA–2007–29176; Directorate Identifier authority. 2007–NE–38–AD. (m) These actions are interim actions and We are issuing this rulemaking under we may take further rulemaking actions in Comments Due Date the authority described in subtitle VII, the future. (a) The Federal Aviation Administration part A, subpart III, section 44701, Alternative Methods of Compliance ‘‘General requirements.’’ Under that (FAA) must receive comments on this airworthiness directive (AD) action by June (n) The Manager, Wichita Aircraft section, Congress charges the FAA with 14, 2010. Certification Office, has the authority to promoting safe flight of civil aircraft in approve alternative methods of compliance air commerce by prescribing regulations Affected ADs for this AD if requested using the procedures for practices, methods, and procedures (b) None. found in 14 CFR 39.19.
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Special Flight Permits ADDRESSES: You may submit comments the Coast Guard when it is received at (o) Under 14 CFR part 39.23, we are identified by Coast Guard docket the Docket Management Facility. We limiting the special flight permits for this AD number USCG–2009–0931 using any recommend that you include your name as follows: one of the following methods: and a mailing address, an e-mail (1) The propeller must have no signs of • Federal eRulemaking Portal: http:// address, or a telephone number in the external oil leakage from the hub; and www.regulations.gov. body of your document so that we can (2) The propeller has no current reports of • Fax: 202–493–2251. contact you if we have questions abnormal operation or vibration. • Mail: Docket Management Facility regarding your submission. Related Information (M–30), U.S. Department of To submit your comment online, go to (p) McCauley Propeller Systems, Service Transportation, West Building Ground http://www.regulations.gov, click on the Bulletin No. ASB254, dated August 20, 2007, Floor, Room W12–140, 1200 New Jersey ‘‘submit a comment’’ box, which will pertains to the subject of this AD. Contact Avenue, SE., Washington, DC 20590– then become highlighted in blue. In the McCauley Propeller Systems, P.O. Box 7704, 0001. ‘‘Document Type’’ drop down menu Wichita, KS 67277–7704; phone (800) 621– • Hand delivery: Same as mail select ‘‘Proposed Rule’’ and insert 7767, for a copy of this service information. address above, between 9 a.m. and 5 ‘‘USCG–2009–0931’’ in the ‘‘Keyword’’ (q) Contact Jeff Janusz, Aerospace Engineer, p.m., Monday through Friday, except box. Click ‘‘Search’’ then click on the Wichita Aircraft Certification Office, FAA, balloon shape in the ‘‘Actions’’ column. Small Airplane Directorate, 1801 Airport Federal holidays. The telephone number Road, Wichita, KS 67209; e-mail: is 202–366–9329. If you submit your comments by mail or [email protected]; phone: (316) 946–4148; To avoid duplication, please use only hand delivery, submit them in an fax: (316) 946–4107, for more information one of these four methods. See the unbound format, no larger than 81⁄2 by about this AD. ‘‘Public Participation and Request for 11 inches, suitable for copying and Issued in Burlington, Massachusetts, on Comments’’ portion of the electronic filing. If you submit April 7, 2010. SUPPLEMENTARY INFORMATION section comments by mail and would like to Peter A. White, below for instructions on submitting know that they reached the Facility, please enclose a stamped, self-addressed Assistant Manager, Engine and Propeller comments. postcard or envelope. We will consider Directorate, Aircraft Certification Service. FOR FURTHER INFORMATION CONTACT: all comments and material received [FR Doc. 2010–8380 Filed 4–12–10; 8:45 am] Lieutenant junior grade Margaret during the comment period and may Brown, Coast Guard Sector Houston- BILLING CODE 4910–13–P change the rule based on your Galveston, telephone (713) 678–9001, or comments. e-mail [email protected] if DEPARTMENT OF HOMELAND you have questions on viewing or Viewing Comments and Documents SECURITY submitting material to the docket, call To view comments, as well as Renee V. Wright, Program Manager, documents mentioned in this preamble Coast Guard Docket Operations, telephone 202–366– as being available in the docket, go to 9826. http://www.regulations.gov, click on the 33 CFR Part 165 SUPPLEMENTARY INFORMATION: ‘‘read comments’’ box, which will then become highlighted in blue. In the [Docket No. USCG–2009–0931] Public Participation and Request for Comments ‘‘Keyword’’ box insert ‘‘USCG–2009– RIN 1625–AA11 0931’’ and click ‘‘Search.’’ Click the We encourage you to participate in ‘‘Open Docket Folder’’ in the ‘‘Actions’’ Regulated Navigation Area; Galveston this rulemaking by submitting column. You may also visit the Docket Channel, TX comments and related materials. All Management Facility in Room W12–140 comments received will be posted, on the ground floor of the Department AGENCY: Coast Guard, DHS. without change, to http:// of Transportation West Building, 1200 ACTION: Notice of proposed rulemaking. www.regulations.gov and will include New Jersey Avenue, SE., Washington, any personal information you have DC 20590, between 9 a.m. and 5 p.m., SUMMARY: The Coast Guard proposes to provided. establish a regulated navigation area Monday through Friday, except Federal across the entire width of the Galveston Submitting Comments holidays. We have an agreement with Channel in the vicinity of Sector Field the Department of Transportation to use If you submit a comment, please the Docket Management Facility. Office (SFO) Galveston. This regulated include the docket number for this navigation area would require vessels to rulemaking (USCG–2009–0931), Privacy Act navigate at no wake speeds within this indicate the specific section of this Anyone can search the electronic area. Vessel transits at greater than document to which each comment form of all comments received into any minimum safe speed and causing wake applies, and provide a reason for each of our dockets by the name of the in this area would be prohibited unless suggestion or recommendation. You individual submitting the comment (or specifically authorized by the Captain of may submit your comments and signing the comment, if submitted on the Port Houston-Galveston or a material online (via http:// behalf of an association, business, labor designated representative. This www.regulations.gov) or by fax, mail, or union, etc.). You may review a Privacy regulated navigation area is needed to hand delivery, but please use only one Act notice regarding our public dockets protect the Coast Guard Sector Field of these means. If you submit a in the January 17, 2008, issue of the Office (SFO) Galveston vessels, break comment online via Federal Register (73 FR 3316). wall, and piers from further damage www.regulations.gov, it will be associated with excessive wake and to considered received by the Coast Guard Public Meeting protect ongoing base construction. when you successfully transmit the We do not now plan to hold a public DATES: Comments and related material comment. If you fax, hand deliver, or meeting. But you may submit a request must reach the Coast Guard on or before mail your comment, it will be for one using one of the four methods May 13, 2010. considered as having been received by specified under ADDRESSES. Please
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explain why you believe a public Order. We expect the economic impact Paperwork Reduction Act of 1995 (44 meeting would be beneficial. If we of this proposed rule to be so minimal U.S.C. 3501–3520). determine that one would aid this that a full Regulatory Evaluation is Federalism rulemaking, we will hold one at a time unnecessary. The basis of this finding is and place announced by a later notice that the proposed regulated navigation A rule has implications for federalism in the Federal Register. area covers a small area and vessels are under Executive Order 13132, allowed to travel through it at a Federalism, if it has a substantial direct Background and Purpose minimum safe speed so as not to delay effect on State or local governments and The Coast Guard proposes to establish vessel traffic in and around the Port of would either preempt State law or a regulated navigation area in Galveston Galveston. impose a substantial direct cost of Channel to protect the surrounding Small Entities compliance on them. We have analyzed areas from the harmful effects of this proposed rule under that Order and excessive wake. This regulated Under the Regulatory Flexibility Act have determined that it does not have navigation area would require vessels to (5 U.S.C. 601–612), we have considered implications for federalism. navigate at minimum safe speeds which whether this proposed rule would have produce no wake within the area of the a significant economic impact on a Unfunded Mandates Reform Act Coast Guard SFO Galveston, Texas. substantial number of small entities. The Unfunded Mandates Reform Act Vessel transits at greater than minimum The term ‘‘small entities’’ comprises of 1995 (2 U.S.C. 1531–1538) requires safe speed and causing wake in this area small businesses, not-for-profit Federal agencies to assess the effects of would be prohibited unless specifically organizations that are independently their discretionary regulatory actions. In authorized by the Captain of the Port owned and operated and are not particular, the Act addresses actions Houston-Galveston or a designated dominant in their fields, and that may result in the expenditure by a representative. This regulated governmental jurisdictions with State, local, or tribal government, in the navigation area is needed to protect the populations of less than 50,000. aggregate, or by the private sector of Coast Guard vessels, break wall, and The Coast Guard certifies under 5 $100,000,000 or more in any one year. piers from further damage associated U.S.C. 605(b) that this proposed rule Though this proposed rule would not with excessive wake and to protect would not have a significant economic result in such expenditure, we do ongoing base construction. impact on a substantial number of small discuss the effects of this rule elsewhere entities. in this preamble. Discussion of Proposed Rule This proposed rule would not have a The Coast Guard proposes to establish significant economic impact on a Taking of Private Property a regulated navigation area in Galveston substantial number of small entities for This proposed rule would not effect a Channel within the area from Latitude the following reason: The extent of the taking of private property or otherwise 29°20′19″ N, Longitude 094°46′36″ W, proposed regulated navigation area is have taking implications under east to Latitude 29°20′06″ N, Longitude limited in size and would not create Executive Order 12630, Governmental 094°46′15″ W, south to Latitude undue delay to vessel traffic in and Actions and Interference with 29°19′4″ N, Longitude 094°46′27″ W, around the Port of Galveston. Constitutionally Protected Property west to Latitude 29°19′51″ N, Longitude If you think that your business, Rights. 094°46′45″ W, and north to Latitude organization, or governmental 29°20′19″ N, Longitude 094°46′36″ W. jurisdiction qualifies as a small entity Civil Justice Reform Vessel transits at greater than minimum and that this proposed rule would have This proposed rule meets applicable safe speed in this area would be a significant economic impact on it, standards in sections 3(a) and 3(b)(2) of prohibited unless specifically please submit a comment (see Executive Order 12988, Civil Justice authorized by the Captain of the Port ADDRESSES) explaining why you think it Reform, to minimize litigation, Houston-Galveston (COTP) or a qualifies and how and to what degree eliminate ambiguity, and reduce designated representative. this rule would economically affect it. Vessels can contact the COTP through burden. Assistance for Small Entities Vessel Traffic Service Houston/ Protection of Children Galveston on VHF Channel 5A, by Under section 213(a) of the Small telephone at (713) 671–5103, or by Business Regulatory Enforcement We have analyzed this proposed rule facsimile at (713) 671–5159. Fairness Act of 1996 (Pub. L. 104–121), under Executive Order 13045, we want to assist small entities in Protection of Children from Regulatory Analyses understanding this proposed rule so that Environmental Health Risks and Safety We developed this proposed rule after they can better evaluate its effects on Risks. This rule is not an economically considering numerous statutes and them and participate in the rulemaking. significant rule and would not create an executive orders related to rulemaking. If the rule would affect your small environmental risk to health or risk to Below we summarize our analyses business, organization, or governmental safety that might disproportionately based on 13 of these statutes or jurisdiction and you have questions affect children. executive orders. concerning its provisions or options for Indian Tribal Governments compliance, please contact Lieutenant Regulatory Planning and Review junior grade Margaret Brown at (713) This proposed rule does not have This proposed rule is not a significant 678–9001. The Coast Guard will not tribal implications under Executive regulatory action under section 3(f) of retaliate against small entities that Order 13175, Consultation and Executive Order 12866, Regulatory question or complain about this rule or Coordination with Indian Tribal Planning and Review, and does not any policy or action of the Coast Guard. Governments, because it would not have require an assessment of potential costs a substantial direct effect on one or and benefits under section 6(a)(3) of that Collection of Information more Indian tribes, on the relationship Order. The Office of Management and This proposed rule would call for no between the Federal Government and Budget has not reviewed it under that new collection of information under the Indian tribes, or on the distribution of
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power and responsibilities between the discovery of a significant environmental DEPARTMENT OF HOMELAND Federal Government and Indian tribes. impact from this proposed rule. SECURITY Energy Effects List of Subjects in 33 CFR Part 165 Coast Guard We have analyzed this proposed rule Harbors, Marine safety, Navigation 33 CFR Part 165 under Executive Order 13211, Actions (water), Reporting and recordkeeping Concerning Regulations That requirements, Security measures, Significantly Affect Energy Supply, Waterways. [Docket No. USCG–2010–0153] Distribution, or Use. We have determined that it is not a ‘‘significant For the reasons discussed in the RIN 1625–AA00 energy action’’ under that order because preamble, the Coast Guard proposes to it is not a ‘‘significant regulatory action’’ amend 33 CFR part 165 as follows: Safety Zone; Ocean City Air Show under Executive Order 12866 and is not 2010, Atlantic Ocean, Ocean City, MD likely to have a significant adverse effect PART 165—REGULATED NAVIGATION on the supply, distribution, or use of AREAS AND LIMITED ACCESS AREAS AGENCY: Coast Guard, DHS. energy. The Administrator of the Office ACTION: Notice of proposed rulemaking. of Information and Regulatory Affairs 1. The authority citation for part 165 has not designated it as a significant continues to read as follows: SUMMARY: The Coast Guard proposes energy action. Therefore, it does not Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. establishing a temporary safety zone on require a Statement of Energy Effects Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; the Atlantic Ocean in the vicinity of under Executive Order 13211. 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Ocean City, Maryland to support the Technical Standards Pub. L. 107–295, 116 Stat. 2064; Department Ocean City Air Show. This action is of Homeland Security Delegation No. 0170.1. intended to restrict vessel traffic The National Technology Transfer movement on the Atlantic Ocean to and Advancement Act (NTTAA) (15 2. Add new § 165.827 to read as protect mariners and the public from the U.S.C. 272 note) directs agencies to use follows: hazards associated with air show events. voluntary consensus standards in their DATES: Comments and related material regulatory activities unless the agency § 165.827 Regulated Navigation Area; Galveston Channel, Texas. must be received by the Coast Guard on provides Congress, through the Office of or before May 13, 2010. Management and Budget, with an (a) Location. The following area is a ADDRESSES: You may submit comments explanation of why using these regulated navigation area: All waters of standards would be inconsistent with identified by docket number USCG– the Galveston Channel within the area 2010–0153 using any one of the applicable law or otherwise impractical. ° ′ ″ from Latitude 29 20 19 N, Longitude following methods: Voluntary consensus standards are 094°46′36″ W, east to Latitude 29°20′06″ technical standards (e.g., specifications (1) Federal eRulemaking Portal: N, Longitude 094°46′15″ W, south to of materials, performance, design, or http://www.regulations.gov. Latitude 29°19′47″ N, Longitude operation; test methods; sampling (2) Fax: 202–493–2251. 094°46′27″ W, west to Latitude procedures; and related management (3) Mail: Docket Management Facility 29°19′51″ N, Longitude 094°46′45″ W, systems practices) that are developed or ° ′ ″ (M–30), U.S. Department of adopted by voluntary consensus and north to Latitude 29 20 19 N, ° ′ ″ Transportation, West Building Ground standards bodies. Longitude 094 46 36 W. Floor, Room W12–140, 1200 New Jersey This proposed rule would not use (b) Regulations. (1) Vessels navigating Avenue SE., Washington, DC 20590– technical standards. Therefore, we did this area must do so at a minimum safe 0001. not consider the use of voluntary speed so as to not cause any wake. (4) Hand Delivery: Same as mail consensus standards. (2) Vessels may proceed at greater address above, between 9 a.m. and 5 Environment than a minimum safe speed with p.m., Monday through Friday, except permission of the Captain of the Port Federal holidays. The telephone number We have analyzed this proposed rule Houston-Galveston or a designated is 202–366–9329. under Department of Homeland representative. To avoid duplication, please use only Security Management Directive 0023.1 one of these four methods. See the and Commandant Instruction (3) To request permission as required ‘‘Public Participation and Request for M16475.lD, which guide the Coast by these regulations, contact the Sector Comments’’ portion of the Guard in complying with the National Houston-Galveston Command Center by SUPPLEMENTARY INFORMATION section Environmental Policy Act of 1969 telephone at (713) 671–5113. below for instructions on submitting (NEPA) (42 U.S.C. 4321–4370f), and Dated: March 24, 2010. comments. have made a preliminary determination Mary E. Landry, that this action is one of a category of FOR FURTHER INFORMATION CONTACT: If actions which do not individually or Rear Admiral, U.S. Coast Guard, Commander, you have questions on this proposed cumulatively have a significant effect on Eighth Coast Guard District. rule, call or e-mail LT Tiffany Duffy, the human environment. A preliminary [FR Doc. 2010–8372 Filed 4–12–10; 8:45 am] Chief, Waterways Management Division, environmental analysis checklist BILLING CODE 9110–04–P Sector Hampton Roads, Coast Guard; supporting this preliminary telephone 757–668–5580, e-mail determination is available in the docket [email protected]. If you have where indicated under ADDRESSES. This questions on viewing or submitting proposed rule involves establishing a material to the docket, call Renee V. regulated navigation area in Galveston Wright, Program Manager, Docket Channel. We seek any comments or Operations, telephone 202–366–9826. information that may lead to the SUPPLEMENTARY INFORMATION:
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Public Participation and Request for become highlighted in blue. In the Discussion of Proposed Rule Comments ‘‘Keyword’’ box insert ‘‘USCG–2010– The Coast Guard proposes We encourage you to participate in 0153’’ and click ‘‘Search.’’ Click the establishing a temporary safety zone on this rulemaking by submitting ‘‘Open Docket Folder’’ in the ‘‘Actions’’ specified waters of the Atlantic Ocean comments and related materials. All column. You may also visit the Docket bound by the following coordinates: comments received will be posted Management Facility in Room W12–140 38°–21′–38″ N / 075°–04′–04″ W, 38°– without change to http:// on the ground floor of the Department 21′–27″ N / 075°–03′–29″ W, 38°–19′– www.regulations.gov and will include of Transportation West Building, 1200 35″ N / 075°–04′–19″ W, 38°–19’–45″ N any personal information you have New Jersey Avenue, SE., Washington, / 075°–04′–54″ W (NAD 1983), in the provided. DC 20590, between 9 a.m. and 5 p.m., vicinity of Ocean City, Maryland. The Monday through Friday, except Federal safety zone forms a box, beginning 500 Submitting Comments holidays. We have an agreement with feet seaward from the shoreline out If you submit a comment, please the Department of Transportation to use 2000 feet and extends 6000 feet from include the docket number for this the Docket Management Facility. Talbot St. to 33rd St. The NE corner, SE rulemaking (USCG–2010–0153), Privacy Act corner, NW corner, and SW corner will indicate the specific section of this be marked with buoys in accordance document to which each comment Anyone can search the electronic with (IAW) Coast Guard District 5. This applies, and provide a reason for each form of comments received into any of safety zone is proposed in the interest suggestion or recommendation. You our dockets by the name of the of public safety during the Ocean City may submit your comments and individual submitting the comment (or Air Show and will be enforced daily material online (via http:// signing the comment, if submitted on from 10 a.m. to 4 p.m. on June 4, 5, and www.regulations.gov) or by fax, mail, or behalf of an association, business, labor 6, 2010. Access to the safety zone will hand delivery, but please use only one union, etc.). You may review a Privacy be restricted during the specified date of these means. If you submit a Act notice regarding our public dockets and times. Except for vessels authorized comment online via http:// in the January 17, 2008, issue of the by the Captain of the Port or his www.regulations.gov, it will be Federal Register (73 FR 3316). Representative, no person or vessel may enter or remain in the safety zone. considered received by the Coast Guard Public Meeting when you successfully transmit the The Coast Guard expects the comment. If you fax, hand deliver, or We do not now plan to hold a public temporary final rule will be effective mail your comment, it will be meeting. But you may submit a request less than 30 days after publication in the considered as having been received by for one using one of the four methods Federal Register because delaying the the Coast Guard when it is received at specified under ADDRESSES. Please effective date would be contrary to the the Docket Management Facility. We explain why you believe a public public interest due to the need to recommend that you include your name meeting would be beneficial. If we protect the public from the dangers and a mailing address, an e-mail determine that one would aid this associated with air shows. address, or a telephone number in the rulemaking, we will hold one at a time Regulatory Analyses body of your document so that we can and place announced by a later notice in the Federal Register. We developed this proposed rule after contact you if we have questions considering numerous statutes and For information on facilities or regarding your submission. executive orders related to rulemaking. services for individuals with disabilities To submit your comment online, go to Below we summarize our analyses or to request special assistance at the http://www.regulations.gov, click on the based on 13 of these statutes or public meeting, contact LT Tiffany ‘‘submit a comment’’ box, which will executive orders. then become highlighted in blue. In the Duffy at the telephone number or e-mail ‘‘Document Type’’ drop down menu address indicated under the FOR Regulatory Planning and Review select ‘‘Proposed Rule’’ and insert FURTHER INFORMATION CONTACT section of This proposed rule is not a significant ‘‘USCG–2010–0153’’ in the ‘‘Keyword’’ this notice. regulatory action under section 3(f) of box. Click ‘‘Search’’ then click on the Background and Purpose Executive Order 12866, Regulatory balloon shape in the ‘‘Actions’’ column. Planning and Review, and does not If you submit your comments by mail or On June 4, 5, and 6, 2010 Ocean City, require an assessment of potential costs hand delivery, submit them in an Maryland will host an air show event on and benefits under section 6(a)(3) of that unbound format, no larger than 81⁄2 by the Atlantic Ocean between Talbot Order. The Office of Management and 11 inches, suitable for copying and Street and 33rd Street in Ocean City, Budget has not reviewed it under that electronic filing. If you submit MD. In recent years, there have been Order. Although this proposed comments by mail and would like to unfortunate instances of jets and planes regulation restricts access to the safety know that they reached the Facility, crashing during performances at air zone, the effect of this rule will not be please enclose a stamped, self-addressed shows. Along with the jet or plane significant because: (i) The safety zone postcard or envelope. We will consider crash, there is typically a wide area of will be in effect for a limited duration; all comments and material received scattered debris that also damages (ii) the zone is of limited size; and (iii) during the comment period and may property and could cause significant the Coast Guard will make notifications change the rule based on your injury or death to mariners observing via maritime advisories so mariners can comments. the air shows. Due to the need to protect adjust their plans accordingly. mariners and the public transiting the Viewing Comments and Documents Atlantic Ocean immediately below the Small Entities To view comments, as well as air show from hazards associated with Under the Regulatory Flexibility Act documents mentioned in this preamble the air show, the Coast Guard proposes (5 U.S.C. 601–612), we have considered as being available in the docket, go to establishing a temporary safety zone, whether this proposed rule would have http://www.regulations.gov, click on the restricting access to the area for public a significant economic impact on a ‘‘read comments’’ box, which will then safety purposes. substantial number of small entities.
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The term ‘‘small entities’’ comprises Federalism Energy Effects small businesses, not-for-profit A rule has implications for federalism We have analyzed this proposed rule organizations that are independently under Executive Order 13132, under Executive Order 13211, Actions owned and operated and are not Federalism, if it has a substantial direct Concerning Regulations That dominant in their fields, and effect on State or local governments and Significantly Affect Energy Supply, governmental jurisdictions with would either preempt State law or Distribution, or Use. We have populations of less than 50,000. impose a substantial direct cost of determined that it is not a ‘‘significant The Coast Guard certifies under 5 compliance on them. We have analyzed energy action’’ under that order because U.S.C. 605(b) that this proposed rule this proposed rule under that Order and it is not a ‘‘significant regulatory action’’ would not have a significant economic have determined that it does not have under Executive Order 12866 and is not impact on a substantial number of small implications for federalism. likely to have a significant adverse effect on the supply, distribution, or use of entities. This proposed rule would affect Unfunded Mandates Reform Act the following entities, some of which energy. The Administrator of the Office might be small entities: The owners or The Unfunded Mandates Reform Act of Information and Regulatory Affairs operators of vessels intending to transit of 1995 (2 U.S.C. 1531–1538) requires has not designated it as a significant or anchor on the Atlantic Ocean in the Federal agencies to assess the effects of energy action. Therefore, it does not vicinity of Ocean City, MD from 10 a.m. their discretionary regulatory actions. In require a Statement of Energy Effects to 4 p.m. on June 4 through June 6, particular, the Act addresses actions under Executive Order 13211. that may result in the expenditure by a 2010. Technical Standards State, local, or tribal government, in the This safety zone will not have a aggregate, or by the private sector of The National Technology Transfer significant economic impact on a $100,000,000 (adjusted for inflation) or and Advancement Act (NTTAA) (15 substantial number of small entities for more in any one year. Though this U.S.C. 272 note) directs agencies to use the following reasons: (i) The safety proposed rule would not result in such voluntary consensus standards in their zone will only be in place for a limited an expenditure, we do discuss the regulatory activities unless the agency duration. (ii) Before the effective period effects of this rule elsewhere in this provides Congress, through the Office of of June 4, 2010 to June 6, 2010, maritime preamble. Management and Budget, with an advisories will be issued allowing explanation of why using these mariners to adjust their plans Taking of Private Property standards would be inconsistent with accordingly. This proposed rule would not cause a applicable law or otherwise impractical. If you think that your business, taking of private property or otherwise Voluntary consensus standards are organization, or governmental have taking implications under technical standards (e.g., specifications jurisdiction qualifies as a small entity Executive Order 12630, Governmental of materials, performance, design, or and that this rule would have a Actions and Interference with operation; test methods; sampling significant economic impact on it, Constitutionally Protected Property procedures; and related management please submit a comment (see Rights. systems practices) that are developed or ADDRESSES) explaining why you think it adopted by voluntary consensus Civil Justice Reform qualifies and how and to what degree standards bodies. this rule would economically affect it. This proposed rule meets applicable This proposed rule does not use standards in sections 3(a) and 3(b)(2) of technical standards. Therefore, we did Assistance for Small Entities Executive Order 12988, Civil Justice not consider the use of voluntary Under section 213(a) of the Small Reform, to minimize litigation, consensus standards. eliminate ambiguity, and reduce Business Regulatory Enforcement Environment Fairness Act of 1996 (Pub. L. 104–121), burden. We have analyzed this proposed rule we want to assist small entities in Protection of Children under Department of Homeland understanding this proposed rule so that We have analyzed this proposed rule Security Management Directive 023–01 they can better evaluate its effects on under Executive Order 13045, and Commandant Instruction them and participate in the rulemaking. Protection of Children from M16475.lD, which guide the Coast If the rule would affect your small Environmental Health Risks and Safety Guard in complying with the National business, organization, or governmental Risks. This rule is not an economically Environmental Policy Act of 1969 jurisdiction and you have questions significant rule and would not create an (NEPA)(42 U.S.C. 4321–4370f), and concerning its provisions or options for environmental risk to health or risk to have made a preliminary determination compliance, please contact LT Tiffany safety that might disproportionately that this action is one of a category of Duffy, Chief Waterways Management affect children. actions that do not individually or Division, Sector Hampton Roads, Coast cumulatively have a significant effect on Guard; telephone 757–668–5580, e-mail Indian Tribal Governments the human environment. Therefore, this [email protected]. The Coast This proposed rule does not have rule is categorically excluded under Guard will not retaliate against small tribal implications under Executive section 2.B.2. Figure 2–1, paragraph entities that question or complain about Order 13175, Consultation and 34(g), of the Instruction and neither an this proposed rule or any policy or Coordination with Indian Tribal environmental assessment nor an action of the Coast Guard. Governments, because it would not have environmental impact statement is Collection of Information a substantial direct effect on one or required. A preliminary environmental more Indian tribes, on the relationship analysis checklist supporting this This proposed rule would call for no between the Federal Government and determination is available in the docket new collection of information under the Indian tribes, or on the distribution of where indicated under ADDRESSES. This Paperwork Reduction Act of 1995 (44 power and responsibilities between the proposed rule involves a temporary U.S.C. 3501–3520). Federal Government and Indian tribes. safety zone to protect the public from
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the dangers associated with air show on shore or on board a vessel that is FOR FURTHER INFORMATION CONTACT: Tim activities. We seek any comments or displaying a U.S. Coast Guard Ensign. Creagan, Office of Technical and information that may lead to the (3) The Captain of the Port, Hampton Information Services, Architectural and discovery of a significant environmental Roads can be reached through the Sector Transportation Barriers Compliance impact from this proposed rule. Duty Officer at Sector Hampton Roads Board, 1331 F Street, NW., suite 1000, in Portsmouth, Virginia at telephone Washington, DC 20004–1111. List of Subjects in 33 CFR Part 165 Number (757) 668–5555. Telephone number: 202–272–0016 Harbors, Marine safety, Navigation (4) The Coast Guard Representatives (voice); 202–272–0082 (TTY). Electronic (water), Reporting and recordkeeping enforcing the safety zone can be mail address: creagan@access- requirements, Security measures, contacted on VHF–FM marine band board.gov. Waterways. radio channel 13 (165.65Mhz)and SUPPLEMENTARY INFORMATION: On March For the reasons discussed in the channel 16 (156.8 Mhz). 22, 2010, the Access Board published an preamble, the Coast Guard proposes to (d) Effective Period. This regulation advance notice of proposed rulemaking amend 33 CFR part 165 as follows: will be in effect from 10 a.m. to 4 p.m. in the Federal Register to begin the on June 4 through June 6, 2010. process of updating its standards for PART 165—REGULATED NAVIGATION Dated: March 17, 2010. electronic and information technology AREAS AND LIMITED ACCESS AREAS M.S. Ogle, covered by section 508 of the 1. The authority citation for part 165 Captain, U.S. Coast Guard, Captain of the Rehabilitation Act Amendments of 1998 continues to read as follows: Port, Hampton Roads. and its guidelines for Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. [FR Doc. 2010–8374 Filed 4–12–10; 8:45 am] telecommunications equipment covered Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; BILLING CODE 9110–04–P by Section 255 of the 33 CFR 1.05–1, 6.04–1, 6.04–6 and 160.5; Telecommunications Act of 1996. At Pub. L. 107–295, 116 Stat. 2064; Department part of this rulemaking, the Board is of Homeland Security Delegation No. 0170.1. ARCHITECTURAL AND proposing to revise its Americans with 2. Add § 165.T05–XXXX to read as TRANSPORTATION BARRIERS Disabilities Act Accessibility Guidelines follows: COMPLIANCE BOARD to address access to self-service machines used for ticketing, check-in or § 165.T05–XXXX Safety Zone; Ocean City 36 CFR Parts 1191, 1193, and 1194 check-out, seat selection, boarding Air Show 2010, Atlantic Ocean, Ocean City, passes, or ordering food in restaurants [Docket No. 2010–1] MD. and cafeterias. 75 FR 13457 (March 22, (a) Regulated Area. The following area RIN 3014–AA37 2010). The Board has released for public is a safety zone: specified waters of the comment a draft of updated standards Atlantic Ocean bound by the following Americans With Disabilities Act (ADA) and guidelines which is available on the coordinates: 38°–21′–38″ N / 075°–04′– Accessibility Guidelines for Buildings Board’s Web site (http://www.access- 04″ W, 38°–21′–27″ N / 075°–03′–29″ W, and Facilities; Telecommunications board.gov/508.htm). 38°–19′–35″ N / 075°–04′–19″ W, 38°– Act Accessibility Guidelines; The Board is responsible for 19′–45″ N / 075°–04′–54″ W (NAD Electronic and Information Technology developing and keeping up to date 1983), in the vicinity of Ocean City, Accessibility Standards standards for electronic and information Maryland. The safety zone forms a box, technology covered by section 508 of AGENCY: Architectural and the Rehabilitation Act. Section 508 beginning 500 feet seaward from the Transportation Barriers Compliance requires access to electronic and shoreline out 2000 feet and extends Board. 6000 feet from Talbot St. to 33rd St. The information technology developed, NE corner, SE corner, NW corner, and ACTION: Notice of hearing. procured, maintained, or used by SW corner will be marked with buoys SUMMARY: The Architectural and Federal agencies and departments to the IAW USCG District 5. Transportation Barriers Compliance extent that it does not impose an undue (b) Definition. For the purposes of this Board (Access Board) will hold a public burden. The Board’s section 508 part, Captain of the Port Representative: hearing on its refresh of accessibility standards, which were originally means any U.S. Coast Guard criteria for information and published in 2000 and are part of the commissioned, warrant or petty officer communication technologies covered by Federal government’s procurement who has been authorized by the Captain the Rehabilitation Act (section 508) and regulations, provide technical and of the Port, Hampton Roads, Virginia to the Telecommunications Act (section functional performance criteria for act on his behalf. 255). The hearing will focus on a draft technologies covered by the law. (c) Regulations. (1) In accordance with of updated standards and guidelines Section 508 requires the Board to the general regulations in 165.23 of this made available for public comment on periodically review and amend the part, entry into this zone is prohibited March 22. As part of this rulemaking, standards to reflect technological unless authorized by the Captain of the the Board proposes to supplement its advances or changes in electronic and Port, Hampton Roads or his designated Americans with Disabilities Act information technology. representatives. Accessibility Guidelines to address The Board is updating its (2) The operator of any vessel in the access to self-service machines such as Telecommunications Act Accessibility immediate vicinity of this safety zone point-of-sales machines and ticketing Guidelines jointly with its refresh of the shall: kiosks. section 508 standards to harmonize both (i) Stop the vessel immediately upon documents and to facilitate compliance. being directed to do so by any DATES: The hearing will be on May 12, Section 255 of the Telecommunications commissioned, warrant or petty officer 2010 from 9 a.m. until 12 p.m. Act requires telecommunications on shore or on board a vessel that is ADDRESSES: The hearing will be held at equipment and customer premises displaying a U.S. Coast Guard Ensign. the Embassy Suites, DC Convention equipment to be accessible to and (ii) Proceed as directed by any Center, 900 10th Street, NW., usable by individuals with disabilities commissioned, warrant or petty officer Washington, DC 20001. when it is readily achievable to do so.
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The Board is responsible for developing ACTION: Proposed rule. comments. A detailed rationale for the and periodically updating accessibility approval is set forth in the direct final guidelines for telecommunications SUMMARY: EPA is proposing to approve rule. If no adverse comments are equipment and customer premises a revision to Indiana’s State received in response to this rule, no equipment covered by section 255 in Implementation Plan alternative further activity is contemplated. If EPA monitoring requirements for conjunction with the Federal receives adverse comments, the direct Indianapolis Power and Light Company Communications Commission. The final rule will be withdrawn and all Board first issued its guidelines under (IPL) at its Harding Street Generating Station. On December 31, 2008, Indiana public comments received will be section 255 in 1998. addressed in a subsequent final rule The Board is also proposing to amend requested approval of alternative based on this proposed rule. EPA will the Americans with Disabilities Act monitoring requirements that allow the Accessibility Guidelines (ADAAG) to use of a particulate matter continuous not institute a second comment period. address access to self-service machines emissions monitoring system in place of Any parties interested in commenting used for ticketing, check-in or check- a continuous opacity monitor. on this action should do so at this time. out, seat selection, boarding passes, or DATES: Comments must be received on Please note that if EPA receives adverse ordering food in restaurants and or before May 13, 2010. comment on an amendment, paragraph, or section of this rule and if that cafeterias. ADDRESSES: Submit your comments, provision may be severed from the The draft standards and guidelines are identified by Docket ID No. EPA–R05– available for public comment until June OAR–2009–0118, by one of the remainder of the rule, EPA may adopt 21, 2010. The Board will hold a hearing following methods: as final those provisions of the rule that in Washington, DC that will provide the • http://www.regulations.gov: Follow are not the subject of an adverse public an opportunity to comment on the on-line instructions for submitting comment. For additional information, the draft rule. This hearing will take comments. see the direct final rule which is located place during the Access Board’s • E-mail: [email protected]. in the Rules section of this Federal regularly scheduled Board meeting on • Fax: (312) 385–5501. Register. May 12, 2010 from 9 a.m. until 12 p.m. • Mail: Genevieve Damico, Acting at the Embassy Suites, DC Convention Dated: February 25, 2010. Chief, Criteria Pollutant Section, Air Center, 900 10th Street, NW., Walter W. Kovalick Jr., Programs Branch (AR–18J), U.S. Washington, DC 20001. The Board Environmental Protection Agency, 77 Acting Regional Administrator, Region 5. previously held a hearing on the draft West Jackson Boulevard, Chicago, [FR Doc. 2010–8294 Filed 4–12–10; 8:45 am] rule in San Diego, CA on March 25, Illinois 60604. BILLING CODE 6560–50–P 2010 in conjunction with the 25th • Hand Delivery: Genevieve Damico, Annual International Technology and Acting Chief, Criteria Pollutant Section, Persons with Disabilities Conference. Air Programs Branch (AR–18J), U.S. The hearing location is accessible to DEPARTMENT OF THE INTERIOR individuals with disabilities. Sign Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, language interpreters and real-time Fish and Wildlife Service captioning will be provided. For the Illinois 60604. Such deliveries are only accepted during the Regional Office comfort of other participants, persons 50 CFR Part 17 attending the hearing are requested to normal hours of operation, and special refrain from using perfume, cologne, arrangements should be made for and other fragrances. To pre-register to deliveries of boxed information. The [Docket No. FWS-R8-ES-2010-0016] testify, please contact Kathy Johnson at Regional Office official hours of (202) 272–0041, (202) 272–0082 (TTY), business are Monday through Friday, Endangered and Threatened Wildlife or [email protected]. 8:30 a.m. to 4:30 p.m., excluding and Plants; 90-Day Finding on a Federal holidays. Petition To List Thorne’s Hairstreak David M. Capozzi, Please see the direct final rule which Butterfly as Endangered Executive Director. is located in the Rules section of this [FR Doc. 2010–8309 Filed 4–12–10; 8:45 am] Federal Register for detailed Correction BILLING CODE 8150–01–P instructions on how to submit In Federal Register document 2010– comments. 7547 beginning on page 17062 in the FOR FURTHER INFORMATION CONTACT: Matt issue of April 5, 2010, make the ENVIRONMENTAL PROTECTION Rau, Environmental Engineer, Criteria following correction: AGENCY Pollutant Section, Air Programs Branch On page 17062, proposed rule (AR–18J), Environmental Protection 40 CFR Part 52 document 2010-7547 was inadvertently Agency, Region 5, 77 West Jackson [EPA–R05–OAR–2009–0118; FRL–9125–1] Boulevard, Chicago, Illinois 60604, published in the Rules section of the (312) 886–6524, [email protected]. issue of April 5, 2010, beginning on Approval and Promulgation of Air page 17062. It should have appeared in SUPPLEMENTARY INFORMATION: In the Quality Implementation Plans; Indiana; the Proposed Rules section. Final Rules section of this Federal Alternate Monitoring Requirements for [FR Doc. C1–2010–7547–Filed 4–12–10; 8:45 am] Indianapolis Power and Light—Harding Register, EPA is approving the State’s BILLING CODE 1505–01–D Street Station SIP submittal as a direct final rule without prior proposal because the AGENCY: Environmental Protection Agency views this as a noncontroversial Agency (EPA). submittal and anticipates no adverse
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Notices Federal Register Vol. 75, No. 70
Tuesday, April 13, 2010
This section of the FEDERAL REGISTER Coconino National Forest annually collects information from contains documents other than rules or Gila and Salt River Meridian, Yavapai seafood and industrial fishing proposed rules that are applicable to the County, Arizona processing plants on the volume and public. Notices of hearings and investigations, value of their processed fishery committee meetings, agency decisions and T.14 N., R. 5 E. 1 products and their monthly rulings, delegations of authority, filing of Sec. 9, SW ⁄4, less and excepting Lot 1, petitions and applications and agency containing 3.75 acres, previously employment figures. NOAA also statements of organization and functions are conveyed to the United States of collects monthly information on the examples of documents appearing in this America, National Park Service, by production of fish meal and oil. The section. warranty deed dated May 16, 1973, and information gathered is used by NOAA recorded July 18, 1973, Book 852, Page in the economic and social analyses 179 of official records of Yavapai used when proposing and evaluating DEPARTMENT OF AGRICULTURE County, Arizona. fishery management actions. The area described contains 156.25 acres, Affected Public: Business or other for- Forest Service Yavapai County, Arizona. profit organizations. As provided by Public Law 108–190, Frequency: Annually and monthly. Transfer of Land to the Department of and acting pursuant to the authority Respondent’s Obligation: Mandatory. Interior delegated to the Chief, Forest Service, at OMB Desk Officer: David Rostker, Title 7, Code of Federal Regulations, (202) 395–3897. AGENCY: Forest Service, USDA. section 2.60(a)(2), these described lands Copies of the above information ACTION: Notice of land transfer. are hereby transferred to the collection proposal can be obtained by administrative jurisdiction of the calling or writing Diana Hynek, Departmental Paperwork Clearance SUMMARY: Public Law 108–190 provides National Park Service to be permanently Officer, (202) 482–0266, Department of for the transfer of approximately 157 incorporated in, and administered by Commerce, Room 6625, 14th and acres of National Forest System lands to the Secretary of the Interior. Constitution Avenue, NW., Washington, the administrative jurisdiction of the Dated: April 2, 2010. DC 20230 (or via the Internet at National Park Service, to be thereafter Thomas L. Tidwell, [email protected]). permanently incorporated in and Chief, Forest Service. Written comments and administered by the Secretary of the [FR Doc. 2010–8377 Filed 4–12–10; 8:45 am] recommendations for the proposed Interior as part of the Montezuma Castle BILLING CODE 3410–11–P information collection should be sent National Monument. within 30 days of publication of this DATES: This notice becomes effective notice to David Rostker, OMB Desk April 13, 2010. DEPARTMENT OF COMMERCE Officer, FAX number (202) 395–7285, or [email protected]. FOR FURTHER INFORMATION CONTACT: Submission for OMB Review; Louisa Herrera, National Title Program Comment Request Dated: April 8, 2010. Manager, (202) 205–1255, Lands and Gwellnar Banks, Realty Management. The Department of Commerce will Management Analyst, Office of the Chief submit to the Office of Management and Information Officer. SUPPLEMENTARY INFORMATION: Section 3 Budget (OMB) for clearance the [FR Doc. 2010–8400 Filed 4–12–10; 8:45 am] of Public Law 108–190 (117 Stat. 2867), following proposal for collection of BILLING CODE 3510–22–P authorized the federal acquisition by the information under the provisions of the Secretary of Agriculture of Paperwork Reduction Act (44 U.S.C. approximately 157 acres of land Chapter 35). DEPARTMENT OF COMMERCE depicted on a map dated May 2002, and Agency: National Oceanic and entitled ‘‘Montezuma Castle Contiguous Atmospheric Administration (NOAA). International Trade Administration Lands’’. Upon acquisition, section 5(e) of Title: Processed Products Family of Public Law 108–190 provides that the Forms. Middle East Public Health Mission; land ‘‘shall be transferred to the OMB Control Number: 0648–0018. Application Deadline Extended administrative jurisdiction of the Form Number(s): NOAA 88–13 and AGENCY: International Trade National Park Service, and shall be 88–13c. Administration, Department of thereafter permanently incorporated in, Type of Request: Regular submission. Commerce. and administered by the Secretary of the Number of Respondents: 1,320. ACTION: Interior as part of, the Montezuma Average Hours Per Response: Annual Notice. Castle National Monument.’’ (117 Stat. processors report, 30 minutes; monthly 2870). The Montezuma Castle products report, 15 minutes. Timeframe for Recruitment and Contiguous Lands have been acquired Burden Hours: 681. Applications for the United States by the Forest Needs and Uses: As part of a Fishery Mission recruitment will be Service by deed dated December 6, Management Plan developed under the conducted in an open and public 2007, and recorded December 10, 2007, authority of the Magnuson-Stevens manner, including publication in the in the land records of Yavapai County Fishery Conservation and Management Federal Register, posting on the at Book 4560, Page 216. The lands are Act, the National Oceanic and Commerce Department trade mission described as follows: Atmospheric Administration (NOAA) calendar (http://www.ita.doc.gov/
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doctm/tmcal.html) and other Internet new instrumentation for Neutron 3. To develop new instrumentation Web sites, press releases to general and Research, conducting collaborative for Neutron Research. trade media, direct mail, notices by research with NIST scientists, and to 4. To conduct collaborative research industry trade associations and other conduct other outreach and educational with NIST scientists and to conduct multiplier groups, and publicity at activities that advance the use of other outreach and educational industry meetings, symposia, neutrons by U.S. university and activities that advance the use of conferences, and trade shows. CS Saudi industrial scientists. neutrons by U.S. academic and Arabia and CS Qatar will work in DATES: All applications must be industrial scientists. conjunction with Global Trade received no later than 5 p.m. Eastern The NCNR intends this financial Programs, which will serve as a key Daylight Savings Time on Friday, May assistance program to address all of facilitator in establishing strong 7, 2010. Please see ‘‘Application these objectives through one or more commercial ties to the U.S. companies Submission Information’’ for more Cooperative Agreements. An eligible in the targeted sectors nationwide. information. applicant is not prohibited from Recruitment for the mission will including any collaborating begin immediately and conclude no ADDRESSES: Paper copies of full subrecipients in its application. later than Friday, April 16, 2010. The proposals must be submitted to the Additional information about the U.S. Department of Commerce will address below. Paper submissions NCNR can be found at: http:// review all applications immediately require an original and two copies: www.nist.gov/ncnr. after the deadline. We will inform Tanya Burke, NIST Center for Neutron Additional information about the applicants of selection decisions as soon Research; National Institute of NIST Center for Neutron Research as possible after Friday 16, 2010. Standards and Technology; 100 Bureau (NCNR) Comprehensive Grants Program Applications received after the deadline Drive, Stop 6100; Gaithersburg, NCNR may be found in the Federal will be considered only if space and Maryland 20899–6100. Electronic Funding Opportunity (FFO) scheduling constraints permit. submissions of full proposals must be announcement for this program. submitted to: http://www.grants.gov. Contacts Funding Availability: NIST FOR FURTHER INFORMATION CONTACT: Ms. Jeanne Townsend, Baltimore U.S. anticipates making 1–3 awards for a Tanya Burke, NIST Center for Neutron Export Assistance Center, Tel: 410– period of performance of up to 5 years Research, National Institute of 962–4518, Fax: 410–962–4529, E- at $1,500,000—$2,000,000 per year per Standards and Technology, 100 Bureau mail: [email protected]. award. Ms. Lisa C. Huot, U.S. Department of Drive, Stop 6100, Gaithersburg, Total Amount to be Awarded: Up to Commerce, Washington, DC 20230, Maryland 20899–6100. Tel (301) 975– $25 million in Cooperative Agreements. Tel: 202–482–2796, Fax: 202–482– 4711, E–Mail: [email protected]. The funding instrument used in this 0115, E–Mail: [email protected] . SUPPLEMENTARY INFORMATION: Electronic program will be a Cooperative access: Applications are strongly Agreement. Sean Timmins, encouraged to read the Federal Funding Proposals will be considered for Global Trade Programs, Commercial Service Opportunity (FFO) available at http:// Cooperative Agreements with durations Trade Missions Program. www.grants.gov/for complete of up to five years, funded in one year [FR Doc. 2010–8436 Filed 4–12–10; 8:45 am] information about this program, all increments, subject to the availability of BILLING CODE 3510–FP–P program requirements, and instructions funds, satisfactory progress, and the for applying by paper or electronically. continuing relevance to the objectives of the NIST Center for Neutron Research. DEPARTMENT OF COMMERCE Authority: 15 U.S.C. § 272(b) and (c), 15 U.S.C. § 278g–1(a), (b), 15 U.S.C. § 7501(b) The anticipated level of funding is up to $2,000,000 per year and one or more National Institute of Standards and Catalog of Federal Domestic awards may be approved. Between one Technology Assistance (CFDA) Number: 11.609 and three awards are likely. Projects are [Docket Number: [100311135–0139–01] Program Description expected to start by October 1, 2010. Program Objectives NIST will determine whether to fund FY 2010 NIST Center for Neutron one award for the full amount; to divide Research (NCNR) Comprehensive The mission of the NIST Center for available funds into multiple awards of Grants Program Neutron Research is to assure the any size, and negotiate scopes of work AGENCY: National Institute of Standards availability of neutron measurement and budgets as appropriate; or not to and Technology (NIST), Commerce. capabilities to meet the needs of U.S. select any proposal for funding, upon researchers from industry, academia and ACTION: Notice. completing the selection process other government agencies. The primary described below. SUMMARY: The National Institute of program objectives of the NIST Center Cost Share Requirements: None. Standards and Technology (NIST) for Neutron Research (NCNR) Eligibility: This program is open to announces that the NIST Center for Comprehensive Grants Program are: institutions of higher education; Neutron Research (NCNR) 1. To advance, through cooperative hospitals; nonprofit organizations; Comprehensive Grants Program is efforts with one or more recipients, commercial organizations; state, local, soliciting applications for financial research consistent with the mission of and Indian tribal governments; foreign assistance for Fiscal Year (FY) 2010. The NIST, and NCNR specifically. See governments; organizations under the NIST Center for Neutron Research http://www.nist.gov/ncnr/ and 15 U.S.C. jurisdiction of foreign governments; and (NCNR) Comprehensive Grants Program 271 et seq. international organizations. is seeking proposals for significant 2. To encourage significant research research involving Neutron Research involving Neutron Research and Evaluation Criteria and Spectroscopy specifically aimed at Spectroscopy specifically aimed at The applications will be evaluated assisting visiting researchers at the NIST assisting visiting researchers at the NIST and scored on the basis of the following Center for Neutron Research, developing Center for Neutron Research. evaluation criteria:
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1. Qualifications and experience of Each complete and responsive Taxpayer Identification Number (EIN/ the Principal Investigator in neutron application will be reviewed by at least TIN) and 9-digit Dun and Bradstreet scattering research, as demonstrated by four independent, objective NIST Data Universal Numbering System extensive publications and invited employees, who are knowledgeable in (DUNS) number must be consistent with lectures in condensed matter physics, the subject matter of this announcement the information on the Central chemistry, material science, and its objectives and who are able to Contractor Registration (CCR) (http:// macromolecular science or related fields conduct a review based on the www.ccr.gov) and Automated Standard (10%) evaluation criteria for the Program as Application for Payment System 2. Qualifications and experience of described in this notice. The reviewers (ASAP). For complex organizations with the Applicant’s proposed staff in will reach a consensus score resulting in multiple EIN/TIN and DUNS numbers, neutron scattering research or in related a rank order of applications and make the EIN/TIN and DUNS numbers MUST scientific or engineering areas that are recommendations for funding to the be the numbers for the applying key to the activities contained in the Selecting Official. In making final organization. Organizations that provide proposal, as demonstrated by resumes of selections, the Selecting Official incorrect/inconsistent EIN/TIN and staff proposed for this program (30%). (Director, NCNR) will select funding DUNS numbers may experience 3. Quality of the proposed research recipients based upon the rank order of significant delays in receiving funds if and development plan and its potential the proposals, but may select out of rank their proposal is selected for funding. impact on neutron scattering science, order based on one or more of the Please confirm that the EIN/TIN and particularly in the areas of Selection Factors. The final award of DUNS numbers are consistent with the macromolecular science, condensed Cooperative Agreements will be made information on the CCR and ASAP. matter physics, and chemistry (20%). by the NIST Grants Officer in Collaborations with NIST Employees: 4. Quality of the plan in terms of Gaithersburg, Maryland, based on Collaboration with NIST is presumed in providing research assistance to U.S. compliance with application the NIST Center for Neutron Research neutron researchers using the NCNR requirements as published in this (NCNR) Comprehensive Grants Program. facilities, including related training, notice, compliance with applicable legal If any applicant proposes any activities education, and outreach (30%). and regulatory requirements, and involving specific NIST employees, the statement of work should include a 5. Quality of the plan to integrate the whether the recommended applicants statement of this intention, a description applicant’s staff effectively into the are determined to be responsible. of the collaboration, and prominently activities of the NCNR facility, Unsatisfactory performance on any identify the NIST employee(s) involved. including establishing robust previous Federal award may result in an Any collaboration by a NIST employee communications between the university application not being considered for must be approved by appropriate NIST and the NCNR (10%). funding. Applicants may be asked to modify objectives, work plans, or management and approval is at the sole Selection Factors: The Selecting budgets, and provide supplemental discretion of NIST. Prior to beginning Official shall recommend award based information required by the agency the merit review process, NIST will upon the rank order and prior to award. The decision of the verify the approval of the proposed recommendations of the reviewers, but Grants Officer is final. collaboration. Any unapproved may select out of rank order based on Timely submission of an application, collaboration will be stricken from the one or more of the following factors: whether submitted electronically or in proposal prior to the merit review. a. Availability of Federal funds; paper format, is the responsibility of the Use of NIST Intellectual Property: If b. Balance/distribution of funds to applicant. the applicant anticipates using any ensure research opportunities for all Application Submission Information: NIST-owned intellectual property to types of NCNR scientific research areas All applicants should be aware that carry out the work proposed, the described in the Funding Opportunity adequate time must be factored into applicant should identify such Description section of this Notice; and applicant schedules for delivery of the intellectual property. This information c. Applicant’s prior award application for both electronic and will be used to ensure that no NIST performance. paper submission. Applicants who employee involved in the development Therefore, the highest scoring submit electronic applications are of the intellectual property will proposals may not necessarily be advised that volume on Grants.gov may participate in the review process for that selected for an award. If an award is be extremely heavy, and if Grants.gov is competition. In addition, if the made to an applicant that deviates from unable to accept applications applicant intends to use NIST-owned the scores of the reviewers, the Selecting electronically in a timely fashion, intellectual property, the applicant must Official will justify the selection in applicants are encouraged to exercise comply with all statutes and regulations writing based on selection factors their option to submit applications in governing the licensing of Federal described above. paper format. government patents and inventions, Applications must be received on described at 35 U.S.C. 200–212, 37 CFR Review and Selection Process time, as the review process is expected part 401, 15 CFR 14.36, and in Section All timely submitted applications to begin shortly after the deadline. B.21 of the Department of Commerce received in response to this The Department of Commerce Pre- Pre-Award Notification Requirements, announcement will be reviewed to Award Notification Requirements for 73 FR 7696 (Feb. 11, 2008). Questions determine whether they are complete Grants and Cooperative Agreements: about these requirements may be and responsive to the scope of the stated The Department of Commerce Pre- directed to the Chief Counsel for NIST, objectives of the Program. Incomplete or Award Notification Requirements for 301–975–2803. non-responsive applications will not be Grants and Cooperative Agreements, Any use of NIST-owned intellectual reviewed for technical merit. NIST will which are contained in the Federal property by a proposer is at the sole retain one copy of each incomplete or Register Notice of February 11, 2008 (73 discretion of NIST and will be non-responsive application for three FR 7696), are applicable to this notice. negotiated on a case-by-case basis if a years for record keeping purposes. The On the form SF–424 items 8.b. and 8.c., project is deemed meritorious. The remaining copies will be destroyed. the applicant’s 9-digit Employer/ applicant should indicate within the
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statement of work whether it already includes research on these topics must appropriate, 21 CFR part 58. These has a license to use such intellectual be in compliance with any statutory regulations do not apply to proposed property or whether it intends to seek requirements imposed upon the research using pre-existing images of one. Department of Health and Human animals or to research plans that do not If any invention made in whole or in Services (DHHS) and other federal include live animals that are being cared part by a NIST employee arises in the agencies regarding these topics, all for, euthanized, or used by the project course of an award made pursuant to regulatory policies and guidance participants to accomplish research this notice, the United States adopted by DHHS, the Food and Drug goals, teaching, or testing. These government may retain its ownership Administration, and other Federal regulations also do not apply to rights in any such invention. Licensing agencies on these topics, and all obtaining animal materials from or other disposition of NIST’s rights in Presidential statements of policy on commercial processors of animal such invention will be determined these topics. NIST will accept the products or to animal cell lines or solely by NIST, and include the submission of human subjects protocols tissues from tissue banks. possibility of NIST putting NIST’s rights that have been approved by Institutional Limitation of Liability: Funding for in the intellectual property into the Review Boards (IRBs) possessing a the programs listed in this notice is public domain. current registration filed with DHHS contingent upon the availability of Collaborations making use of Federal and to be performed by institutions Fiscal Year 2010 appropriations. Facilities: All applications should possessing a current, valid Federal-Wide Publication of this announcement does include a description of any work Assurance (FWA) from DHHS. NIST not oblige NIST or the Department of proposed to be performed using Federal will not issue a Single Project Assurance Commerce to award any specific project Facilities. (SPA) for any IRB reviewing any human or to obligate any available funds. If an applicant proposes use of NIST subjects protocol proposed to NIST. Executive Order 12866 (Regulatory facilities, the statement of work should President Obama has issued Executive Planning and Review): This funding include a statement of this intention and Order No. 13,505 (74 FR 10667, March notice was determined to be not a description of the facilities. Any use 9, 2009), revoking previous Executive of NIST facilities must be approved by significant for purposes of Executive Orders and Presidential statements Order 12866. appropriate NIST management and is at regarding the use of human embryonic Executive Order 13132 (Federalism): the sole discretion of NIST. Prior to stem cells in research. On July 30, 2009, It has been determined that this notice beginning the merit review process, President Obama issued a memorandum does not contain policies with NIST will verify the availability of the directing that agencies that support and federalism implications as that term is facilities and approval of the proposed conduct stem cell research adopt the defined in Executive Order 13132. usage. Any unapproved facility use will ‘‘National Institutes of Health Guidelines be stricken from the proposal prior to for Human Stem Cell Research’’ (NIH Executive Order 12372 the merit review. Examples of some Guidelines), which became effective on (Intergovernmental Review of Federal facilities that may be available for July 7, 2009, ‘‘to the fullest extent Programs): Applications under this collaborations are listed on the NIST practicable in light of legal authorities program are not subject to Executive Technology Services Web site, http:// and obligations.’’ On September 21, Order 12372, ‘‘Intergovernmental ts.nist.gov/. 2009, the Department of Commerce Review of Federal Programs.’’ Paperwork Reduction Act: The submitted to the Office of Management Administrative Procedure Act/ standard forms in the application kit and Budget a statement of compliance Regulatory Flexibility Act: Notice and involve a collection of information with the NIH Guidelines. In accordance comment are not required under the subject to the Paperwork Reduction Act. with the President’s memorandum, the Administrative Procedure Act (5 U.S.C. The use of Standard Forms 424, 424A, NIH Guidelines, and the Department of 553) or any other law, for rules relating 424B, 424 (R&R), SF–LLL, and CD–345 Commerce statement of compliance, to public property, loans, grants, has been approved by OMB under the NIST will support and conduct research benefits or contracts (5 U.S.C. 553(a)). respective Control Numbers 0348–0043, using only human embryonic stem cell Because notice and comment are not 0348–0044, 0348–0040, 4040–0001, lines that have been approved by NIH in required under 5 U.S.C. 553, or any 0348–0046, and 0605–0001. accordance with the NIH Guidelines other law, for rules relating to public Notwithstanding any other provision of and will review such research in property, loans, grants, benefits or the law, no person is required to accordance with the Common Rule, as contracts (5 U.S.C. 553(a)), a Regulatory respond to, nor shall any person be appropriate. NIST will not support or Flexibility Analysis is not required and subject to a penalty for failure to comply conduct any type of research that the has not been prepared for this notice, 5 with, a collection of information subject NIH Guidelines prohibit NIH from U.S.C. 601 et seq. to the requirements of the Paperwork funding. NIST will follow any Reporting: Recipients will be required Reduction Act, unless that collection of additional polices or guidance issued by to submit, on a semi-annual basis, for information displays a valid OMB the Administration on this topic. the periods ending March 31 and Control Number. Research Projects Involving Vertebrate September 30 of each year, a technical Research Projects Involving Human Animals: Any proposal that includes progress report and a SF–269, Financial Subjects, Human Tissue, Data or research involving vertebrate animals Status Report. From time to time, and in Recordings Involving Human Subjects: must be in compliance with the accordance with the Uniform Any proposal that includes research National Research Council’s ‘‘Guide for Administrative Requirements and other involving human subjects, human the Care and Use of Laboratory terms and conditions governing the tissue, data or recordings involving Animals’’ which can be obtained from award, the recipient may need to submit human subjects must meet the National Academy Press, 2101 property and patent reports. requirements of the Common Rule for Constitution Avenue, NW., Washington, Anticipated Announcement and Award the Protection of Human Subjects DC 20055. In addition, such proposals (Common Rule), codified for the must meet the requirements of the Date Department of Commerce at 15 CFR part Animal Welfare Act (7 U.S.C. 2131 et NIST plans to make awards by 27. In addition, any proposal that seq.), 9 CFR parts 1, 2, and 3, and if September 30, 2010.
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Dated: April 1, 2010. (Subzone 49L), as described in the SUPPLEMENTARY INFORMATION: The Marc G. Stanley, application and Federal Register notice, Committee was established in Acting Deputy Director. subject to the FTZ Act and the Board’s accordance with the requirements of [FR Doc. 2010–8411 Filed 4–12–10; 8:45 am] regulations, including Section 400.28. Section 103 of the NEHRP BILLING CODE 3510–13–P Signed at Washington, DC, this April 1, Reauthorization Act of 2004 (Pub. L. 2010. 108–360). The Committee is composed Ronald K. Lorentzen, of 15 members appointed by the Director of NIST, who were selected for DEPARTMENT OF COMMERCE Deputy Assistant Secretary for Import Administration Alternate Chairman, Foreign- their technical expertise and experience, Foreign-Trade Zones Board Trade Zones Board. established records of distinguished [Order No. 1674] Andrew McGilvray, professional service, and their knowledge of issues affecting the Executive Secretary. Grant of Authority for Subzone Status; National Earthquake Hazards Reduction [FR Doc. 2010–8423 Filed 4–12–10; 8:45 am] The Swatch Group (U.S.) Inc. (Watch Program. In addition, the Chairperson of and Jewelry Warehousing and BILLING CODE 3510–DS–P the U.S. Geological Survey (USGS) Distribution), Secaucus, NJ Scientific Earthquake Studies Advisory Committee (SESAC) serves in an ex- Pursuant to its authority under the Foreign- DEPARTMENT OF COMMERCE officio capacity on the Committee. The Trade Zones Act of June 18, 1934, as Committee assesses: amended (19 U.S.C. 81a–81u), the Foreign- National Institute of Standards and • Technology Trends and developments in the Trade Zones Board (the Board) adopts the science and engineering of earthquake following Order: hazards reduction; Advisory Committee on Earthquake • Whereas, the Foreign-Trade Zones Act Hazards Reduction Meeting The effectiveness of NEHRP in provides for ‘‘* * * the establishment performing its statutory activities * * * of foreign-trade zones in ports of AGENCY: National Institute of Standards (improved design and construction entry of the United States, to expedite and Technology, Department of methods and practices; land use and encourage foreign commerce, and Commerce. controls and redevelopment; prediction for other purposes,’’ and authorizes the ACTION: Notice of open meeting. techniques and early-warning systems; Foreign-Trade Zones Board to grant to coordinated emergency preparedness qualified corporations the privilege of SUMMARY: The Advisory Committee on plans; and public education and establishing foreign-trade zones in or Earthquake Hazards Reduction (ACEHR involvement programs); adjacent to U.S. Customs and Border or Committee), will hold a meeting on • Any need to revise NEHRP; and Protection ports of entry; Wednesday, April 28, 2010 from 3 p.m. • The management, coordination, Whereas, the Board’s regulations (15 to 5 p.m. Eastern Daylight Time (EDT). implementation, and activities of CFR Part 400) provide for the The primary purpose of this meeting is NEHRP. establishment of special-purpose to review the Committee’s draft report to Background information on NEHRP and subzones when existing zone facilities the NIST Director. The draft report will the Advisory Committee is available at cannot serve the specific use involved, be posted on the NEHRP Web site at http://nehrp.gov/. and when the activity results in a http://nehrp.gov/. Interested members of Pursuant to the Federal Advisory significant public benefit and is in the the public will be able to participate in Committee Act, 5 U.S.C. app. 2, notice public interest; the meeting from remote locations by is hereby given that the Advisory Whereas, the Port Authority of New calling into a central phone number. Committee on Earthquake Hazards Reduction (ACEHR) will hold a meeting York and New Jersey, grantee of DATES: The ACEHR will hold a meeting on Wednesday, April 28, 2010, from 3 Foreign-Trade Zone 49, has made on Wednesday, April 28, 2010, from 3 p.m. until 5 p.m. Eastern Daylight Time application to the Board for authority to p.m. until 5 p.m. Eastern Daylight Time (EDT). There will be no central meeting establish a special-purpose subzone at (EDT). The meeting will be open to the location. The public is invited to the warehouse and distribution facility public. Interested parties may participate in the meeting by calling in of The Swatch Group (U.S.) Inc., located participate in the meeting from their from remote locations. The primary in Secaucus, New Jersey (FTZ Docket remote location. 34–2009, filed 8/7/09); purpose of this meeting is to review the Whereas, notice inviting public ADDRESSES: Questions regarding the Committee’s draft report to the NIST comment has been given in the Federal meeting should be sent to National Director. The draft report will be posted Register (74 FR 41382, 8/17/09) and the Earthquake Hazards Reduction Program on the NEHRP Web site at http:// application has been processed Director, National Institute of Standards nehrp.gov/. pursuant to the FTZ Act and the Board’s and Technology, 100 Bureau Drive, Mail Individuals and representatives of regulations; and, Stop 8630, Gaithersburg, Maryland organizations who would like to offer Whereas, the Board adopts the 20899–8630. For instructions on how to comments and suggestions related to the findings and recommendation of the participate in the meeting, please see Committee’s affairs are invited to examiner’s report, and finds that the the SUPPLEMENTARY INFORMATION section request detailed instructions on how to requirements of the FTZ Act and of this notice. dial in from a remote location to Board’s regulations are satisfied, and FOR FURTHER INFORMATION CONTACT: Dr. participate in the meeting. that the proposal is in the public Jack Hayes, National Earthquake Approximately fifteen minutes will be interest; Hazards Reduction Program Director, reserved from 4:45 p.m.–5 p.m. Eastern Now, therefore, the Board hereby National Institute of Standards and Daylight Time (EDT) for public grants authority for subzone status for Technology, 100 Bureau Drive, Mail comments, and speaking times will be activity related to watch and jewelry Stop 8630, Gaithersburg, Maryland assigned on a first-come, first-serve warehousing and distribution at the 20899–8630. Dr. Hayes’ e-mail address basis. The amount of time per speaker facility of The Swatch Group (U.S.) Inc., is [email protected] and his phone will be determined by the number of located in Secaucus, New Jersey number is (301) 975–5640. requests received, but is likely to be
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about 3 minutes each. Questions from and review information received from and review information received from the public will not be considered during the National Institute of Standards and the National Institute of Standards and this period. Speakers who wish to Technology and from the Chair of the Technology and from the Chair of the expand upon their oral statements, Judges Panel of the Malcolm Baldrige Judges Panel of the Malcolm Baldrige those who had wished to speak but National Quality Award. The agenda National Quality Award. The agenda could not be accommodated, and those will include: Baldrige Program (BNQP) will include: Review of the 2009 who were unable to participate are Update, Baldrige Fellows Program Judging Process, Baldrige Program and invited to submit written statements to Discussion, Baldrige Program Changes Judging Process Changes in 2010. the ACEHR, National Institute of in 2010 and 2011, and Implementation DATES: The meeting will convene June Standards and Technology, 100 Bureau of the Strategic Plan Actions. 15, 2010, at 8:30 a.m. and adjourn at 3 Drive, MS 8630, Gaithersburg, Maryland DATES: The meeting will convene June p.m. on June 15, 2010. The entire 20899–8630, via fax at (301) 975–5433, 16, 2010, at 8:30 a.m. and adjourn at 3 meeting will be closed. or electronically by e-mail to p.m. on June 16, 2010. ADDRESSES: The meeting will be held at [email protected]. ADDRESSES: The meeting will be held at the National Institute of Standards and All participants of the meeting are the National Institute of Standards and Technology, Administration Building, required to pre-register to be admitted. Technology, Administration Building, Lecture Room A, Gaithersburg, Anyone wishing to participate must Lecture Room A, Gaithersburg, Maryland 20899. register by close of business Wednesday, Maryland 20899. All visitors to the April 21, 2010, in order to be admitted. FOR FURTHER INFORMATION CONTACT: Dr. National Institute of Standards and Please submit your name, time of Harry Hertz, Director, Baldrige National Technology site will have to pre-register participation, e-mail address, and phone Quality Program, National Institute of to be admitted. Please submit your number to Tina Faecke. At the time of Standards and Technology, name, time of arrival, e-mail address registration, participants will be Gaithersburg, Maryland 20899, and phone number to Diane Harrison no provided with detailed instructions on telephone number (301) 975–2361. later than Monday, June 14, 2010, and how to dial in from a remote location in SUPPLEMENTARY INFORMATION: The she will provide you with instructions order to participate. Non-U.S. citizens Assistant Secretary for Administration, for admittance. Ms. Harrison’s e-mail must also submit their country of with the concurrence of the General address is [email protected] and citizenship, title, employer/sponsor, and Counsel, formally determined on her phone number is (301) 975–2361. address with their registration. Tina December 3, 2009, that the meeting of Faecke’s e-mail address is FOR FURTHER INFORMATION CONTACT: Dr. the Judges Panel will be closed pursuant [email protected], and her phone Harry Hertz, Director, Baldrige National to Section 10(d) of the Federal Advisory number is (301) 975–5911. Quality Program, National Institute of Committee Act, 5 U.S.C. app. 2, as Standards and Technology, Dated: April 6, 2010. amended by Section 5(c) of the Gaithersburg, Maryland 20899, Government in the Sunshine Act, Public Marc G. Stanley, telephone number (301) 975–2361. Law 94–409. The meeting, which Acting Deputy Director. Dated: April 5, 2010. involves examination of Award [FR Doc. 2010–8406 Filed 4–12–10; 8:45 am] Marc G. Stanley, applicant data from U.S. companies and BILLING CODE 3510–13–P Acting Deputy Director. other organizations and a discussion of [FR Doc. 2010–8409 Filed 4–12–10; 8:45 am] these data as compared to the Award criteria in order to recommend Award DEPARTMENT OF COMMERCE BILLING CODE 3510–13–P recipients, may be closed to the public National Institute of Standards and in accordance with Section 552b(c)(4) of Technology DEPARTMENT OF COMMERCE Title 5, United States Code, because the meeting is likely to disclose trade Malcolm Baldrige National Quality National Institute of Standards and secrets and commercial or financial Award Panel of Judges and Board of Technology information obtained from a person Overseers which is privileged or confidential. Malcolm Baldrige National Quality Dated: April 6, 2010. AGENCY: National Institute of Standards Award Panel of Judges and Technology, Department of Marc G. Stanley, Commerce. AGENCY: National Institute of Standards Acting Deputy Director. ACTION: Notice of public meeting. and Technology, Department of [FR Doc. 2010–8418 Filed 4–12–10; 8:45 am] Commerce. BILLING CODE 3510–13–P SUMMARY: Pursuant to the Federal ACTION: Notice of closed meeting. Advisory Committee Act, 5 U.S.C. app. 2, notice is hereby given that there will SUMMARY: Pursuant to the Federal DEPARTMENT OF COMMERCE be a joint meeting of the Panel of Judges Advisory Committee Act, 5 U.S.C. app. and the Board of Overseers of the 2, notice is hereby given that there will International Trade Administration Malcolm Baldrige National Quality be a meeting of the Panel of Judges of Award on June 16, 2010. The Panel of the Malcolm Baldrige National Quality [A–549–502] Judges and the Board of Overseers are Award on June 15, 2010. The Panel of Circular Welded Carbon Steel Pipes each composed of twelve members Judges is composed of twelve members and Tubes from Thailand: Preliminary prominent in the fields of quality, prominent in the fields of quality, Results and Rescission, in Part, of innovation, and performance innovation, and performance Antidumping Duty Administrative management and appointed by the management and appointed by the Review Secretary of Commerce, assembled to Secretary of Commerce, assembled to advise the Secretary of Commerce on advise the Secretary of Commerce on AGENCY: Import Administration, the conduct of the Baldrige Award. The the conduct of the Baldrige Award. The International Trade Administration, purpose of this meeting is to discuss purpose of this meeting is to discuss Department of Commerce.
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SUMMARY: The Department of Commerce published a notice of initiation of this tubes.’’ The merchandise is classifiable (the Department) is conducting an antidumping duty administrative under the Harmonized Tariff Schedule administrative review of the review. See Initiation of Antidumping of the United States (HTSUS) item antidumping duty order on circular and Countervailing Duty Administrative numbers 7306.30.1000, 7306.30.5025, welded carbon steel pipes and tubes Reviews and Request for Revocation in 7306.30.5032, 7306.30.5040, from Thailand, in response to requests Part, 74 FR 19042 (April 27, 2009). 7306.30.5055, 7306.30.5085 and from Allied Tube and Conduit On May 5, 2009, Pacific Pipe reported 7306.30.5090. Although the HTSUS Corporation (Allied Tube) and that it did not have any shipments or subheadings are provided for the Wheatland Tube Company(Wheatland) sales of subject merchandise for the last convenience and purposes of CBP, our (collectively, petitioners). This review five months of the POR, from October 1, written description of the scope is covers the period March 1, 2008 through 2008 to February 28, 2009. The dispositive. Department subsequently completed a February 28, 2009. We preliminarily Partial Rescission of Review determine that U.S. sales of subject new shipper review for Pacific Pipe merchandise have been made by Saha covering the period March 1, 2008 Section 351.213(d)(3) of the Thai Steel Pipe (Public) Company, Ltd. through September 30, 2008. See Department’s regulations stipulates that (Saha Thai) below normal value (NV). If Circular Welded Carbon Steel Pipes and the Secretary may rescind an these preliminary results are adopted in Tubes from Thailand: Final Results of administrative review of a producer if our final results, we will instruct U.S. Antidumping Duty New Shipper Review, there were no entries, exports, or sales Customs and Border Protection (CBP) to 75 FR 4529 (January 28, 2010) (New of the subject merchandise by that assess antidumping duties based on the Shipper Final Results). producer during the period covered by difference between the export price (EP) On June 3, 2009, we sent the review. Pacific Pipe, in a letter dated and the NV. We are also rescinding the questionnaires to Saha Thai and Pacific May 5, 2009, reported that it did not administrative review of Pacific Pipe Pipe. We received timely responses to make any shipments or sales of subject Company Limited (Pacific Pipe). We our questionnaire from Saha Thai on merchandise for the last five months of will instruct CBP to assess antidumping July 13, 2009 and July 27, 2009. We sent the POR, from October 1, 2008 to duties on entries of this merchandise supplemental questionnaires to Saha February 28, 2009. The one shipment produced by Pacific Pipe at the cash Thai on September 17, 2009 and that Pacific Pipe did make during the deposit rate required at the time of December 9, 2009. We received timely first seven months of the POR, March 1, 2008 through September 30, 2008, was entry. Interested parties are invited to responses to our supplemental concurrently under review in a new comment on these preliminary results. questionnaires on October 6, 2009, shipper review. See New Shipper See the ‘‘Preliminary Results of Review’’ October 19, 2009, January 5, 2010, and Review Final Results, 75 FR at 4529– section of this notice. January 14, 2010. On November 25, 2009, we published 4530 (January 28, 2010). Allied Tube EFFECTIVE DATE: April 13, 2010. a Federal Register notice extending the responded to Pacific Pipe’s letter on FOR FURTHER INFORMATION CONTACT: deadline for these preliminary results of May 8, 2009, by arguing that the Jacqueline Arrowsmith, AD/CVD review by 120 days to March 31, 2010. Department’s regulations and recent Operations, Office 6, Import See Circular Welded Carbon Steel Pipes practice permit the rescission of the new Administration, International Trade and Tubes from Thailand: Extension of shipper review and continuance of the Administration, Department of Time Limit for Preliminary Results of administrative review. Allied Tube Commerce, 14th Street and Constitution Antidumping Duty Administrative argued that the Department should Avenue, NW, Washington, DC 20230; Review, 74 FR 61657 (November 25, follow its practice in Cut-to-Length telephone: (202) 482–5255. 2009). Subsequently the Department Carbon Steel Plate from the People’s SUPPLEMENTARY INFORMATION: exercised its discretion to toll deadlines Republic of China: Notice of Rescission because of the closure of the Federal of Antidumping Duty New Shipper Background Government from February 5, 2010 Review, 74 FR 15930 (April 8, 2009), On March 11, 1986, the Department through February 12, 2010. Thus, all where the Department rescinded the published in the Federal Register an deadlines in this segment of the new shipper review and continued the antidumping duty order on circular proceeding were extended by seven administrative review. On September 4, welded carbon steel pipes and tubes days. See Memorandum to the Record 2009, the Department issued a ‘‘No from Thailand. See Antidumping Duty from Ronald Lorentzen, DAS for Import Shipment Inquiry’’ to CBP and Order: Circular Welded Carbon Steel Administration, regarding ‘‘Tolling of confirmed that there were no shipments Pipes and Tubes from Thailand, 51 FR Administrative Deadlines As a Result of or entries of circular welded carbon 8341 (March 11, 1986). On March 2, the Government Closure During the steel pipes and tubes from Thailand 2009, the Department published a notice Recent Snowstorm,’’ dated February 12, exported by Pacific Pipe from October 1, of opportunity to request an 2010. The revised deadline for the 2008 through February 28, 2009. administrative review of this order preliminary results of this review is Record evidence establishes that there covering the period March 1, 2008 April 7, 2010 were no entries of subject merchandise through February 28, 2009. See produced by Pacific Pipe from October Antidumping or Countervailing Duty Scope of the Order 1, 2008 through February 29, 2009, the Order, Finding or Suspended The products covered by this final five months of this POR. Further, Investigation; Opportunity to Request antidumping order are certain welded the sale and entry made by Pacific Pipe Administrative Review, 74 FR 9077 carbon steel pipes and tubes from during the period from March 1, 2008 (March 2, 2009). On April 27, 2009, in Thailand. The subject merchandise has through September 30, 2008 was the response to timely requests by Saha an outside diameter of 0.375 inches or subject of a new shipper review. See Thai and Wheatland with respect to more, but not exceeding 16 inches. New Shipper Review Final Results, 75 exports by Saha Thai during the period These products, which are commonly FR at 4529–4530 (January 28, 2010). of review (POR), and to a timely request referred to in the industry as ‘‘standard Therefore, the Department is rescinding by Allied Tube with respect to exports pipe’’ or ‘‘structural tubing’’ are the administrative review with respect by Pacific Pipe, the Department hereinafter designated as ‘‘pipes and to Pacific Pipe pursuant to 19 CFR
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351.213(d)(3). The Department will purchasers in the United States. See, Normal Value issue appropriate assessment e.g., 2006–2007 AR Final Results and A. Cost Averaging Methodology instructions to CBP within 15 days of 2004–2005 AR Final Results. publication of this notice. The Department’s normal practice is In accordance with section 772(c)(2) to calculate an annual weighted-average Analysis of the Act, we made deductions from cost for the POR. See, e.g., Certain Pasta Date of Sale the gross unit price for foreign inland from Italy: Final Results of Antidumping freight, foreign brokerage and handling, Duty Administrative Review, 65 FR Saha Thai reported contract date as foreign inland insurance, foreign 77852 (December 13, 2000), and the date of sale for U.S. sales. The warehousing, ocean freight, lighterage accompanying Issues and Decision Department considers invoice date to be charges, U.S. brokerage and handling Memorandum at Comment 18; and the presumptive date of sale. See section charges, and U.S. duties. Notice of Final Results of Antidumping 351.401(i)) of the Department’s Duty Administrative Review of Carbon regulations. For purposes of this review, Section 772(c)(1)(B) of the Act states that EP should be increased by the and Certain Alloy Steel Wire Rod from we examined whether invoice date or Canada, 71 FR 3822 (January 24, 2006), another date better represents the date amount of any import duties ‘‘imposed by the country of exportation which and accompanying Issues and Decision on which the final material terms of sale Memorandum at Comment 5 (explaining have been rebated, or which have not were established. The Department the Department’s practice of computing been collected by reason, of the examined sales documentation, a single weighted-average cost for the including contracts and invoices, exportation of the subject merchandise entire period). However, the Department provided by Saha Thai for its U.S. sales to the United States. . . .’’ Saha Thai recognizes that possible distortions may and has preliminarily found that the claimed an adjustment to EP for the result if our normal annual average cost material terms of sale are set on the duties exempted on its imports of inputs method is used during a period of contract date. Where there was a change (hot-rolled steel coil and zinc) into a significant cost changes. In determining in material terms for four sales bonded warehouse. In determining whether to deviate from our normal subsequent to the original contract, Saha whether an adjustment should be made methodology of calculating an annual Thai issued an amended contract and to EP for this exemption, we look for a weighted average cost, the Department the amended contract date was reported reasonable link between the duties evaluates the case-specific record as date of sale. imposed and those rebated or exempted. evidence using two primary factors: (1) We preliminarily determine that We do not require that the imported the change in the cost of manufacturing contract date (or amended contract date) input be traced directly from (COM) recognized by the respondent is the appropriate date of sale for U.S. importation through exportation. We do during the POR must be deemed sales in this administrative review require, however, that the company significant; and (2) the record evidence because it better represents the date meet our ‘‘two-pronged’’ test in order for must indicate that sales during the upon which the final material terms of this addition to be made to EP. The first shorter averaging periods could be sale were established. This is consistent reasonably linked with the cost of with the most recently completed element is that the import duty and its rebate or exemption be directly linked production (COP) or constructed value administrative reviews of this order. See (CV) during the same shorter averaging to, and dependent upon, one another; Circular Welded Carbon Steel Pipes and periods. See, e.g., Stainless Steel Sheet Tubes from Thailand: Final Results of the second element is that the company and Strip in Coils from Mexico; Final Antidumping Duty Administrative must demonstrate that there were Results of Antidumping Duty Review, 73 FR 61019 (October 15, 2008) sufficient imports of the imported Administrative Review 75 FR 6631 (2006–2007 AR Final Results); see material to account for the duty (February 10, 2010) (SSSS from Mexico); Circular Welded Carbon Steel Pipes and drawback or exemption granted for the see also Stainless Steel Plate in Coils Tubes from Thailand: Final Results of export of the manufactured product. From Belgium: Final Results of Antidumping Duty Administrative See, e.g., 2006–2007 AR Final Results; Antidumping Duty Administrative Review, 71 FR 54266 (September 14, see also Mittal Steel USA Inc. v. United Review, 73 FR 75398 (December 11, 2006) (2004–2005 AR Final Results). States, 31 CIT 1395, 1412–1413 (2007); 2008) and accompanying Issues and In the home market, the date of and Rajinder Pipes Ltd. v. United States, Decision Memorandum at Comment 4 invoice is when the material terms of 70 F. Supp. 2d 1350, 1358 (Ct. Intl. (SSPC from Belgium). sale are established. Therefore, we are Trade, 1999). using the invoice date as the date of sale 1. Significance of Cost Changes Saha Thai has provided information for home market sales. In prior cases, the Department that demonstrates that it meets both established 25 percent as the threshold Export Price prongs of our ‘‘two-pronged’’ test. (between the high and low quarter In accordance with section 772(a) of Therefore, for these preliminary results, COM) for determining that the changes the Tariff Act of 1930, as amended (the we are making an upward adjustment to in COM are significant enough to Act), export price is the price at which export price for these duty exemptions. warrant a departure from our standard the subject merchandise is first sold (or See ‘‘Analysis Memorandum of Saha annual costing approach. See SSPC from agreed to be sold) by the producer or Thai Steel Pipe (Public) Company, Ltd. Belgium at Comment 4. In the instant exporter of subject merchandise outside for the Preliminary Results of the case, record evidence shows that Saha of the United States to an unaffiliated Antidumping Duty Administrative Thai experienced significant changes purchaser prior to the date of Review of Circular Welded Carbon Steel (i.e., changes that exceeded 25 percent) importation. We classified all of Saha Pipes and Tubes from Thailand for the between the high and low quarterly Thai’s sales to its U.S. customers as EP Period 03/01/2008 through 02/28/2009, COM during the POR and that the sales because, as in previous dated concurrently with this notice, change in COM is primarily attributable administrative reviews of this order, we (Preliminary Analysis Memorandum); to the price volatility for hot-rolled coil, found that Saha Thai is not affiliated see also 2006–2007 AR Final Results. a major input consumed in the with its distributors, which are the first production of the carbon steel pipes and
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tubes and used to produce the requested that Saha Thai provide basis consistent with our preliminary merchandise under consideration. See comparisons for its top five home decision to use a quarterly costing ‘‘Cost of Production and Constructed market and its top five US CONNUMs approach. Where the price to the Value Calculation Adjustments for the over the twelve months of the POR. affiliated party was, on average, within Preliminary Results-Saha Thai Steel Saha Thai provided this information in a range of 98 to 102 percent of the same Pipe (Public) Company, Ltd.,’’ dated its October 6, 2009 and January 14, 2010 or comparable merchandise to the concurrently with this notice responses. To determine whether a unaffiliated parties, we determined that (Preliminary Cost Calculation reasonable correlation existed between the sales made to the affiliated parties Memorandum). We found that hot- the sales prices and their underlying were at arm’s length. See Antidumping rolled coil prices changed significantly costs during the POR, we compared Proceedings: Affiliated Party Sales in throughout the POR and consequently weighted-average quarterly prices to the the Ordinary Course of Trade, 67 FR directly affected the cost of the material corresponding quarterly COM for the 69186 (November 15, 2002). In inputs consumed by Saha Thai. See five highest-volume home market accordance with the Department’s Preliminary Cost Calculation Memo. CONNUMs. After reviewing this practice, in our margin analysis, we Specifically, the record data shows that information and determining that the included only those sales to affiliated the percentage difference between the sales and costs generally trend in the parties that were made at arm’s length. high and the low quarterly COM clearly same direction, we preliminarily Where the affiliated party transactions exceeded the 25 percent threshold for determine that there is linkage between did not pass the arm’s-length test, these four of five control numbers Saha Thai’s cost changes and sales sales were excluded from the NV (CONNUMs) sold in the home market prices during the POR. See Preliminary calculation. and all five CONNUMs sold in the Cost Calculation Memo. See, e.g., SSSS For each affiliated reseller, we United States during the POR. See from Mexico; see also SSPC from requested Saha Thai to report the first Preliminary Cost Calculation Memo. As Belgium. sale to an unaffiliated customer. When a result, we have determined for the Because we have found significant the sale to the affiliated reseller did not preliminary results that the changes in cost changes in COM as well as pass the arm’s-length test and was Saha Thai’s COM for hot-rolled coil are reasonable linkage between costs and therefore excluded from the normal significant enough to warrant a sales prices, we have preliminarily value calculation, we included the sale departure from our standard cost determined that a quarterly costing by the affiliated reseller to the first approach, as these significant cost approach would lead to more unaffiliated customer in our margin changes create distortions in the appropriate comparisons in our analysis. Department’s sales-below-cost test, as antidumping duty calculation for Saha D. COP Analysis well as in the overall margin Thai. calculation. We found that Saha Thai made sales B. Home Market Viability below the COP in the most recently 2. Linkage between Cost and Sales In accordance with section 773(a)(1) completed segment of this proceeding in Information of the Act, to determine whether there which Saha Thai was examined, and Consistent with past precedent, if the was sufficient volume of sales in the such sales were disregarded. Thus, in Department finds changes in costs to be home market to serve as a viable basis accordance with section 773(b)(2)(A)(ii) significant in a given period of review, for calculating NV, we compared Saha of the Act, there are reasonable grounds the Department subsequently evaluates Thai’s volume of home market sales of to believe or suspect that Saha Thai whether there is evidence of linkage foreign like product to the volume of made sales of the subject merchandise between the cost changes and the sales U.S. sales of subject merchandise. in its comparison market at prices below prices during the POR. The Pursuant to section 773(a)(1) of the Act the COP in the current review period. Department’s definition of linkage does and section 351.404(b) of the Pursuant to section 773(b)(1) of the Act, not require direct traceability between Department’s regulations, because the we initiated a COP investigation of sales specific sales and their specific volume of Saha Thai’s home market by Saha Thai. For our complete production costs, but rather relies on sales of foreign like product was greater analysis, see Preliminary Cost whether there are elements that would than five percent of the volume of U.S. Calculation Memo. indicate a reasonable correlation sales of the subject merchandise during between the underlying costs and the the POR, we determine that the home 1. Calculation of Cost of Production final sales prices levied by the company. market is viable. Therefore, we used In accordance with section 773(b)(3) See, SSPC from Belgium at Comment 4. home market sales as the basis for NV of the Act, we calculated Saha Thai’s These correlative elements may be in accordance with section 773(a)(1). COP based on the sum of its costs of measured and defined in a number of materials and conversion for foreign like ways depending on the associated C. Affiliated Party Transactions and product, plus an amount for home industry and the overall production and Arm’s-Length Test market SG&A expenses, interest sales processes. The Department The Department’s practice with expenses and packing costs. See the acknowledges that being able to respect to the use of home market sales ‘‘Test of Comparison Market Sales reasonably link sales prices and costs to affiliated parties for NV is to Prices’’ section below for the treatment during a shorter cost period is important determine whether such sales are at of comparison market selling expenses. in deciding whether to depart from our arm’s-length prices. To examine We relied on home market sales and annual average cost methodology. We whether home market sales were made COP information provided by Saha Thai believe that requiring too strict a at arm’s length, we compared the in its questionnaire responses, except standard for linkage, however, would starting price of sales to affiliated where noted below: unreasonably preclude this remedy for customers to the starting price of sales a. We have adjusted Saha Thai’s cost commodity-type products where there is to unaffiliated customers, net of all of carbon steel hot-rolled coils obtained no pricing mechanism in place and it movement charges, direct selling from an affiliated supplier to reflect the may be very difficult to precisely link expenses, discounts and packing. We higher of transfer or market price in production costs to specific sales. We made this comparison on a quarterly accordance with section 773(f)(2) of the
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Act (transactions disregarded). Because Where less than 20 percent of the that is at the same level of trade (LOT) we have determined that quarterly respondent’s home market sales of a as the EP. The NV LOT is that of the average costs are appropriate for the given model were at prices below the starting-price sale in the comparison COP analysis, we have applied the COP, we did not disregard any below- market, or when NV is based on CV, that transactions disregarded analysis and cost sales of that model because we of the sales from which we derive SG&A calculated the related adjustments on a determined that the below-cost sales and profit. For EP, the U.S. LOT is the quarterly basis. were not made within an extended level of the starting-price sale, which is b. We revised Saha Thai’s general and period of time and in ‘‘substantial usually from exporter to importer. To administrative (G&A) expenses to reflect quantities.’’ Where 20 percent or more of determine whether NV sales are at a a rate calculated on non-consolidated the respondent’s home market sales of a different LOT than EP sales, we examine producer-specific financial statements, given model were at prices less than the stages in the marketing and selling rather than the consolidated financial COP, we disregarded the below-cost functions along the chain of distribution statements. sales because: (1) they were made between the producer and unaffiliated c. We adjusted the cost of goods sold within an extended period of time in customer. If the comparison market denominators used in the G&A and ‘‘substantial quantities,’’ in accordance sales are at a different LOT, and the financial expense rates to reflect with sections 773(b)(2)(B) and (C) of the difference affects the price transactions disregarded adjustments Act; and (2) based on our comparison of comparability, as manifested in a and to include the cost of services. prices to the indexed weighted-average pattern of consistent price differences d. We revised Saha Thai’s reported COPs for the POR, they were at prices between sales at different levels of trade duty exemptions on hot-rolled coil and which would not permit the recovery of in the country in which NV is zinc inputs to apply the adjustments as all costs within a reasonable period of determined, we make an LOT a ratio of the exempted duty amounts to time, in accordance with section adjustment under section 773(a)(7)(A) of total purchases of the respective input. 773(b)(2)(D) of the Act. the Act and under section 351.410(c) of Our cost test for Saha Thai revealed For more detail on these adjustments, the Department’s regulations. See, e.g., that, for home market sales of certain refer to Preliminary Cost Calculation Notice of Final Determination of Sales models, less than 20 percent of the sales at Less Than Fair Value: Certain Cut-to- Memorandum. of those models were at prices below the Length Carbon Steel Plate from South E. Cost Test COP. Therefore, we retained all such Africa, 62 FR 61731 (November 19, sales in our analysis and used them as In accordance with section 773(b) of 1997). the basis for determining NV. Our cost For the U.S. market, Saha Thai the Act, we compared the quarterly COP test also indicated that for home market reported only one LOT for its EP sales. to the home market sales price (less any sales of other models, more than 20 For its home market sales, Saha Thai applicable movement charges and percent were sold at prices below the reported that its sales to unaffiliated discounts) by quarter, of the foreign like COP within an extended period of time customers were at the same level of product on a product-specific basis in and were at prices which would not trade as its U.S. sales. However, Saha order to determine whether home permit the recovery of all costs within Thai reported that, if the Department market sales had been made at prices a reasonable period of time. Thus, in used the downstream sales of any of its below COP. accordance with section 773(b)(1) of the affiliated resellers, these sales were In determining whether to disregard Act, we excluded these below-cost sales made at a distinct level of trade, and sales below COP, we examined, in from our analysis and used the Saha Thai’s home market would consist accordance with sections 773(b)(1)(A) remaining above-cost sales as the basis of two levels of trade. and whether such sales were made in for determining NV. For Saha Thai’s sales made through substantial quantities, and whether such affiliated resellers, we consider the sales were made at prices which F. Home Market Price relevant functions to be the selling permitted the recovery of all costs To calculate Saha Thai’s home market functions of both the producer and the within a reasonable period of time in net price, we deducted discounts and reseller (i.e., the cumulative selling the normal course of trade. As noted in movement expenses, which included functions along the chain of section 773(b)(1)(D) of the Act, prices inland freight and warehousing where distribution) for purposes of comparing are considered to provide for recovery of appropriate. Pursuant to section the selling activities related to each costs if such prices are above the 773(a)(6)(C)(iii) of the Act and section affiliate’s sale with those related to the weighted average per-unit COP for the 351.410(c) of the Department’s producer’s sale to its unaffiliated period of investigation or review. In the regulations, we made a circumstance of customers. If the reseller performs instant case, we have relied on a sale adjustment for home market and selling functions that add substantial quarterly costing approach. Similar to U.S. credit expenses, as well as U.S. selling activity in making the sale, we that used by the Department in cases of bank charges. In addition, pursuant to may find that sales by the reseller are high-inflation (see, e.g., Notice of Final section 773(a)(6)(A) of the Act, we made at a different LOT than the sales Determination of Sales at Less Than deducted home market packing costs made by the producer. Fair Value: Certain Cut-to-Length and added U.S. packing costs. In Saha Thai provided information about Carbon-Quality Steel Plate Products addition, where applicable, we made the marketing and selling functions from Indonesia, 64 FR 73164 (December adjustments for differences in costs performed by the affiliated resellers for 29, 1999) at Comment (1), this attributable to physical characteristics its sales to unaffiliated customers. This methodology restates the quarterly pursuant to section 773(a)(6)(C)(ii) of information is sufficient to conduct an material costs on a year-end equivalent the Act and section 351.410 of the analysis of whether Saha Thai’s sales in basis, calculates an annual weighted- Department’s regulations. the home market were made at more average cost for the POR and then than one LOT. For those affiliated restates it to each respective quarter. We Level of Trade resellers whose sales did not pass the find that this quarterly costing method Pursuant to section 773(a)(1)(B)(i) of arm’s length test, we have analyzed the meets the requirements of section the Act, to the extent practicable, NV is information that Saha Thai provided 773(b)(2)(D) of the Act. normally the price in the home market regarding the marketing and selling
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functions for both Saha Thai and the complete analysis, see ‘‘Level of Trade’’ CBP 15 days after the date of affiliated resellers. We examined the section in the Preliminary Analysis publication of the final results of this information reported by Saha Thai and Memorandum; see also 2006–2007 AR administrative review. its affiliated resellers with respect to the Final Results. The Department clarified its selling and marketing functions, the While we have preliminarily ‘‘automatic assessment’’ regulation on freight functions, technical services/ determined that there are two distinct May 6, 2003 (68 FR 23954). This warranties functions, and inventory levels of trade in the home market (LOT clarification will apply to entries of management functions of Saha Thai and 1 and LOT 2) and that the LOT in the subject merchandise during the POR its resellers. We examined the selling U.S. market matches LOT 1 in the home produced by companies included in functions and the level of intensity at market, we must consider whether an these final results of review for which which Saha Thai performs those selling LOT adjustment is warranted for those the reviewed companies did not know functions, as described in the narrative U.S. sales for which there is not a match their merchandise was destined for the response and Exhibit 9 of Saha Thai’s in the home market at LOT 1. In United States. In such instances, we will July 13, 2009 questionnaire response accordance with section 773(a)(7)(A)(ii) instruct CBP to liquidate unreviewed and Exhibit 8 of Saha Thai’s October 19, of the Act, such an adjustment is entries at the all-others rate if there is no 2009 supplemental questionnaire warranted when the difference in LOT rate for any intermediate company response. Information about the specific is demonstrated to affect price involved in the transaction. For a full selling functions we examined, the comparability, based on a pattern of discussion of this clarification, intensity at which Saha Thai and its consistent price differences, on both a Antidumping and Countervailing Duty affiliated resellers performed them, and CONNUM and a quantity basis, between Proceedings: Assessment of our analysis is business proprietary, and sales at different levels of trade in the Antidumping Duties, 68 FR 239254 is detailed in the ‘‘Level of Trade’’ home market (the basis for NV). (May 6, 2003). section in the Preliminary Analysis However, our decision to apply the Cash Deposit Requirements Memorandum. quarterly cost methodology and to The following cash deposit rates will Based on the facts and our analysis, perform quarterly price-to-price be effective with respect to all we have concluded that Saha Thai’s comparisons, raises a novel issue with shipments of subject merchandise home market sales were made at two respect to the LOT analysis of pattern of entered, or withdrawn from warehouse distinct levels of trade: sales directly price differences and any possible LOT for consumption, on or after the from Saha Thai to its unaffiliated adjustment based on that analysis. publication date of the final results, as customers and sales from Saha Thai Therefore, we request parties comment provided for by section 751(a)(1) of the through its affiliated resellers to on whether the application of the Act: (1) for Saha Thai, the cash deposit unaffiliated customers. See ‘‘Level of quarterly cost methodology necessarily rate will be the rate established in the Trade’’ section in the Preliminary requires an evaluation on a quarterly Analysis Memorandum; see also 2006– final results of this review; (2) for basis of the pattern of price differences previously reviewed or investigated 2007 AR Final Results. and how any such differences should be Saha Thai reported that its U.S. sales companies not listed above, the cash analyzed for purposes of determining are made at only one level of trade, to deposit rate will be the company- whether there is a pattern of price unaffiliated resellers in the United specific rate established for the most differences. In addition, we invite States. For the U.S. market, we also recent period; (3) if the exporter is not parties to comment on whether, if a examined the information reported by a firm covered in this review, a prior pattern of price differences is found to Saha Thai with respect to the selling review, or the LTFV investigation, but exist, any LOT adjustment should be and marketing functions, the freight the manufacturer is, the cash deposit done on a yearly basis or on a quarterly functions, technical services/warranties rate will be the rate established for the functions, and inventory management basis. These comments should be most recent period for the manufacturer functions performed by Saha Thai for submitted no later than ten days from of the subject merchandise; and (4) if sales to its unaffiliated resellers. We the date of publication of this notice in neither the exporter nor the examined the selling functions and the the Federal Register. manufacturer of the subject level of intensity at which Saha Thai Currency Conversion merchandise is a firm covered by this performs these selling functions as review, a prior review, or the LTFV We made currency conversions described in its narrative response and investigation, the cash deposit rate shall pursuant to section 351.415 of the Exhibit 9 of Saha Thai’s July 13, 2009 be the ‘‘all other’’ rate established in the Department’s regulations based on rates Section questionnaire response and LTFV investigated, which is 15.67 certified by the Federal Reserve. Exhibit 8 of Saha Thai’s October 19, percent. These deposit rates, when 2009 supplemental questionnaire Preliminary Results of Review imposed, shall remain in effect until response. Information about the specific publication of the final results of the selling functions we examined, the Manufacturer/Exporter Margin next administrative review. intensity at which Saha Thai performs (percent) those selling functions for its U.S. sales Public Comment Saha Thai Steel Pipe (Public) Pursuant to section 351.224(b) of the (to unaffiliated resellers) and our Company, Ltd...... 4.35 analyses is business proprietary, and is Department’s regulations, the detailed in the ‘‘Level of Trade’’ section Department will disclose to parties to Assessment in the Preliminary Analysis the proceeding any calculations Memorandum. The Department shall determine, and performed in connection with these Based on the facts and our analyses, CBP shall assess, antidumping duties on preliminary results within five days we preliminarily determine that all U.S. all appropriate entries in accordance after the date of publication of this sales are made at one LOT. Furthermore, with section 351.212 of the notice. Pursuant to section 351.309 of we find that the U.S. sales are at the Department’s regulations. The the Department’s regulations, interested same LOT as Saha Thai’s home market Department intends to issue assessment parties may submit written comments in sales to unaffiliated customers. For our instructions for Saha Thai directly to response to those preliminary results.
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Unless extended by the Department, DEPARTMENT OF COMMERCE Department received requests to case briefs are to be submitted within 30 conduct an administrative review of the days after the date of publication of this International Trade Administration antidumping duty order on OJ from notice, and rebuttal briefs, limited to [A–351–840] Brazil from two producers/exporters of arguments raised in case briefs, are to be the subject merchandise, Fischer S.A. submitted no later than five days after Certain Orange Juice From Brazil: Comercio, Industria, and Agricultura the time limit for filing case briefs. Preliminary Results of Antidumping (Fischer) and Sucocitrico Cutrale, S.A. Parties who submit arguments in this Duty Administrative Review and Notice (Cutrale). In Cutrale’s request for an proceeding are requested to submit with of Intent Not To Revoke Antidumping administrative review, Cutrale also requested revocation of the antidumping the argument: (1) statement of the Duty Order in Part duty order with respect to its sales of issues; and (2) a brief summary of the AGENCY: Import Administration, subject merchandise, pursuant to 19 argument. Case and rebuttal briefs must International Trade Administration, CFR 351.222(b). be served on interested parties in Department of Commerce. In accordance with 19 CFR accordance with section 351.303(f) of SUMMARY: In response to a request by the 351.213(b)(1), also in March 2009, the the Department’s regulations. petitioners and two producers/exporters petitioners (Florida Citrus Mutual, A. Also, pursuant to section 351.310(c) of the subject merchandise, the Duda & Sons, Citrus World Inc., and Department of Commerce (the of the Department’s regulations, within Southern Gardens Citrus Processing Department) is conducting an 30 days of the date of publication of this Corporation), requested that the administrative review of the Department conduct an administrative notice, interested parties may request a antidumping duty order on certain public hearing on arguments raised in review for Cutrale and Fischer. In April orange juice (OJ) from Brazil of those 2009, the Department initiated an the case and rebuttal briefs. Unless the two producers/exporters of the subject Secretary specifies otherwise, the administrative review for each of these merchandise to the United States. This companies. See Initiation of hearing, if requested, will be held two is the third period of review (POR), Antidumping and Countervailing Duty days after the date for submission of covering March 1, 2008, through Administrative Reviews and Request for rebuttal briefs. Parties will be notified of February 28, 2009. Revocation in Part, 74 FR 19042 (Apr. the time and location. We have preliminarily determined 27, 2009). In May 2009, we issued The Department will publish the final that sales to the United States have been questionnaires to Cutrale and Fischer. results of the administrative review, made below normal value (NV). If these In June 2009, we received responses including the results of its analysis of preliminary results are adopted in the to section A of the questionnaire (i.e., final results of this review, we will issues raised in any case or rebuttal the section covering general instruct U.S. Customs and Border brief, no later than 120 days after information) from Cutrale and Fischer, Protection (CBP) to assess antidumping as well as responses to sections B and publication of the preliminary results, duties on all appropriate entries. unless extended. See section 351.213(h) C of the questionnaire (i.e., the sections DATES: Effective Date: April 13, 2010. of the Department’s regulations. covering sales in the home market and FOR FURTHER INFORMATION CONTACT: United States) and section D (i.e., the Notification to Importers Elizabeth Eastwood or Hector section covering cost of production Rodriguez, AD/CVD Operations, Office (COP)/constructed value (CV)). This notice serves as a preliminary 2, Import Administration, International In June, August, and September 2009, reminder to importers of their Trade Administration, U.S. Department we issued four supplemental sales responsibility under section 351.402(f) of Commerce, 14th Street and questionnaires to Fischer, three of the Department’s regulations to file a Constitution Avenue, NW., Washington, supplemental questionnaires to Cutrale certificate regarding the reimbursement DC 20230; telephone: (202) 482–3874 or and one cost questionnaire and of antidumping duties prior to (202) 482–0629, respectively. supplemental each to Cutrale and liquidation of the relevant entries SUPPLEMENTARY INFORMATION: Fischer. We received responses to these during this review period. Failure to supplemental questionnaires from July Background comply with this requirement could through October 2009. result in the Secretary’s presumption In March 2006, the Department In September and October 2009, the that reimbursement of antidumping published in the Federal Register an Department verified the U.S. sales data duties occurred and the subsequent antidumping duty order on certain reported by Fischer’s U.S. affiliate, assessment of double antidumping orange juice from Brazil. See Citrosuco North America Inc. (CNA), duties. Antidumping Duty Order: Certain and the COP/CV data reported by Orange Juice from Brazil, 71 FR 12183 Fischer, respectively. This administrative review and notice (Mar. 9, 2006) (OJ Order). Subsequently, On October 28, 2009, the Department are issued and published in accordance on March 2, 2009, the Department extended the deadline for the with sections 751(a)(1) and 777(i)(1) of published in the Federal Register a preliminary results in this review until the Act. notice of opportunity to request an no later than March 31, 2010. See Dated: April 7, 2010. administrative review of the Certain Orange Juice from Brazil: Notice Ronald K. Lorentzen, antidumping duty order of certain of Extension of Time Limits for the orange juice from Brazil for the period Preliminary Results of Antidumping Deputy Assistant Secretary for Import March 1, 2008, through February 28, Duty Administrative Review, 74 FR Administration. 2009. See Antidumping or 55540 (Oct. 28, 2009). [FR Doc. 2010–8420 Filed 4–12–10; 8:45 am] Countervailing Duty Order, Finding, or In November and December 2009, the BILLING CODE 3510–DS–S Suspended Investigation; Opportunity Department verified Cutrale’s and To Request Administrative Review, 74 Fischer’s sales information in Brazil and FR 9077 (Mar. 2, 2009). the U.S. sales data reported by Cutrale’s In accordance with 19 CFR U.S. affiliate, Citrus Products Inc (CPI). 351.213(b)(2), in March 2009, the Also, in November, we issued and
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received a final cost supplemental retail (FCOJR). Reconstituted orange necessary to offset dumping. See 19 CFR questionnaire from Cutrale. juice is produced through further 351.222(b)(2)(i). In January 2010, the Department manufacture of FCOJM, by adding On March 31, 2009, Cutrale requested verified Cutrale’s COP/CV data reported water, oils and essences to the orange revocation of the antidumping duty by Cutrale. In February 2010, as juice concentrate. FCOJR is order with respect to its sales of subject explained in the memorandum from the concentrated orange juice, typically at merchandise, pursuant to 19 CFR Deputy Assistant Secretary for Import 42 Brix, in a frozen state, packed in 351.222(b). This request was Administration, the Department retail-sized containers ready for sale to accompanied by certification that: (1) exercised its discretion to toll deadlines consumers. FCOJR, a finished consumer Cutrale sold the subject merchandise at for the duration of the closure of the product, is produced through further not less than NV during the current POR Federal Government from February 5, manufacture of FCOJM, a bulk and will not sell the merchandise at less through February 12, 2010. Thus, all manufacturer’s product. than NV in the future; and (2) it sold deadlines in this segment of the The subject merchandise is currently subject merchandise to the United proceeding have been extended by classifiable under subheadings States in commercial quantities for a seven days. The revised deadline for the 2009.11.00, 2009.12.25, 2009.12.45, and period of at least three consecutive preliminary results of this review is now 2009.19.00 of the Harmonized Tariff years. Cutrale also agreed to immediate April 7, 2010. See Memorandum to the Schedule of the United States (HTSUS). Record from Ronald Lorentzen, DAS for reinstatement of the antidumping duty These HTSUS subheadings are provided order, as long as any exporter or Import Administration, regarding for convenience and for customs ‘‘Tolling of Administrative Deadlines As producer is subject to the order, if the purposes only and are not dispositive. Department concludes that, subsequent a Result of the Government Closure Rather, the written description of the ’’ to the revocation, it sold the subject During the Recent Snowstorm, dated scope of the order is dispositive. February 12, 2010. merchandise at less than NV. In March 2010, at the request of the Determination Not to Revoke Order, in After analyzing Cutrale’s request for Department, Cutrale and Fischer Part revocation, we preliminarily find that it submitted revised U.S. and home does not meet all of the criteria under market sales databases. Also in March The Department may revoke, in whole 19 CFR 351.222(b). In this case, our 2010, the Department requested that or in part, an antidumping duty order preliminary margin calculation shows Cutrale report U.S. sales data related to upon completion of a review under that Cutrale sold the subject exports of subject merchandise section 751 of the Tariff Act of 1930, as merchandise at less than NV during the produced by unaffiliated Brazilian amended (the Act). While Congress has current review period. See ‘‘Preliminary producers. In April 2010, Cutrale not specified the procedures that the Results of the Review’’ section below. informed the Department that it did not Department must follow in revoking an Moreover, Cutrale’s certification, which have any such sales to unaffiliated order, the Department has developed a predated our final results of the second customers in the United States during procedure for revocation that is administrative review, was based on the the POR. described in 19 CFR 351.222. This erroneous belief that it would receive a regulation requires, inter alia, that a Scope of the Order zero or de minimis margin in their company requesting revocation must second administrative review. However, The scope of this order includes submit the following: (1) A certification Cutrale received antidumping duty certain orange juice for transport and/or that the company has sold the subject margins above de minimis in the second further manufacturing, produced in two merchandise at not less than NV in the administrative review. See Certain different forms: (1) Frozen orange juice current review period and that the Orange Juice from Brazil: Final Results in a highly concentrated form, company will not sell subject of Antidumping Duty Administrative sometimes referred to as frozen merchandise at less than NV in the Review, 74 FR 40167 (Aug. 11, 2009). concentrated orange juice for future; (2) a certification that the Therefore, we preliminarily determine manufacture (FCOJM); and (2) company sold commercial quantities of that Cutrale does not qualify for pasteurized single-strength orange juice the subject merchandise to the United revocation of the order on orange juice which has not been concentrated, States in each of the three years forming pursuant to 19 CFR 351.222(b)(2), and referred to as not-from-concentrate the basis of the request; and (3) an that the order with respect to (NFC). At the time of the filing of the agreement to immediate reinstatement merchandise produced and exported by petition, there was an existing of the order if the Department concludes Cutrale should not be revoked. antidumping duty order on frozen that the company, subsequent to the concentrated orange juice (FCOJ) from revocation, sold subject merchandise at Comparisons to Normal Value Brazil. See Antidumping Duty Order; less than NV. See 19 CFR 351.222(e)(1). Frozen Concentrated Orange Juice from Upon receipt of such a request, the To determine whether sales of OJ by Brazil, 52 FR 16426 (May 5, 1987). Department will consider: (1) Whether Cutrale and Fischer to the United States Therefore, the scope of this order with the company in question has sold were made at less than NV, we regard to FCOJM covers only FCOJM subject merchandise at not less than NV compared constructed export price produced and/or exported by those for a period of at least three consecutive (CEP) to the NV, as described in the companies which were excluded or years; (2) whether the company has ‘‘Constructed Export Price’’ and ‘‘Normal revoked from the pre-existing agreed in writing to its immediate Value’’ sections of this notice. antidumping order on FCOJ from Brazil reinstatement in the order, as long as Pursuant to section 777A(d)(2) of the as of December 27, 2004. Those any exporter or producer is subject to Act, we compared the CEPs of companies are Cargill Citrus Limitada, the order, if the Department concludes individual U.S. transactions to the Coinbra-Frutesp (SA), Cutrale, Fischer, that the company, subsequent to the weighted-average NV of the foreign like and Montecitrus Trading S.A. revocation, sold the subject product where there were sales made in Excluded from the scope of the order merchandise at less than NV; and (3) the ordinary course of trade, as are reconstituted orange juice and whether the continued application of discussed in the ‘‘Cost of Production frozen concentrated orange juice for the antidumping duty order is otherwise Analysis’’ section below.
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Product Comparisons include gains and losses incurred on the at CEP. In accordance with section In accordance with section 771(16) of futures contract which resulted in the 772(f) of the Act, we calculated the CEP the Act, we considered all products shipment of subject merchandise. profit rate using the expenses incurred produced by Cutrale and Fischer Where appropriate, we made by Cutrale and its U.S. affiliate on their covered by the description in the ‘‘Scope adjustments for billing adjustments and sales of the subject merchandise in the rebates. United States and the profit associated of the Order’’ section, above, to be In addition, we made deductions for with those sales. foreign like products for purposes of movement expenses, in accordance with For further discussion of the changes determining appropriate product section 772(c)(2)(A) of the Act. These made to Cutrale’s reported U.S. sales comparisons to U.S. sales. Pursuant to included, where appropriate, foreign data, see the April 7, 2010, 19 CFR 351.414(e)(2), we compared U.S. inland freight; foreign warehousing memorandum from Blaine Wiltse, sales of OJ to sales of OJ in the home expenses; foreign brokerage and Analyst, to the File, entitled market within the contemporaneous handling expenses; ocean freight; U.S. ‘‘Calculation Adjustments for window period, which extends from brokerage and handling (offset by Sucocitrico Cutrale Ltda. for the three months prior to the month of the customer-specific reimbursements); U.S. Preliminary Results’’ (Cutrale Sales first U.S. sale until two months after the customs duties, harbor maintenance fees Calculation Memo). last U.S. sale. Where there were no sales and merchandise processing fees (offset B. Fischer of identical merchandise in the home by U.S. duty drawback and customs market made in the ordinary course of duty reimbursements); U.S. inland In accordance with section 772(b) of trade to compare to U.S. sales, we freight expenses (i.e., freight from port the Act, we calculated CEP for those compared U.S. sales to sales of the most to warehouse); and U.S. warehousing sales where the merchandise was first similar foreign like product made in the expenses. We capped reimbursements sold (or agreed to be sold) in the United ordinary course of trade. In making for brokerage and handling expenses by States before or after the date of product comparisons, we matched the amount of brokerage and handling importation by or for the account of the foreign like products based on the expenses incurred on the subject producer or exporter, or by a seller physical characteristics reported by the merchandise, in accordance with our affiliated with the producer or exporter, respondents in the following order of practice. See Certain Orange Juice from to a purchaser not affiliated with the importance: Product type and organic Brazil: Final Results and Partial producer or exporter. In this case, we designation. Where there were no sales Rescission of Antidumping Duty are treating all of Fischer’s U.S. sales as of identical or similar merchandise, we Administrative Review, 73 FR 46584 CEP sales because they were made in made product comparisons using CV, as (Aug. 11, 2008), and accompanying the United States by Fischer’s U.S. discussed in the ‘‘Calculation of Normal Issues and Decision Memorandum affiliate, CNA, on behalf of Fischer, Value Based on Constructed Value’’ (2005–2007 OJ from Brazil) at Comment within the meaning of section 772(b) of section below. See section 773(a)(4) of 7; see also Certain Orange Juice from the Act. the Act. Brazil: Final Results of Antidumping We based CEP on the packed delivered prices to unaffiliated Constructed Export Price Duty Administrative Review, 74 FR 40167 (Aug. 11, 2009), and purchasers in the United States. Where For all U.S. sales made by Cutrale and accompanying Issues and Decision appropriate, we made adjustments for Fischer, we used the CEP methodology Memorandum at Comment 3 (2007– billing adjustments and rebates. We specified in section 772(b) of the Act 2008 OJ from Brazil). We also capped made deductions for movement because the subject merchandise was U.S. customs duty reimbursements, as expenses, in accordance with section sold for the account of these well as U.S. duty drawback, by the 772(c)(2)(A) of the Act; these included, respondents by their U.S. subsidiaries in amount of U.S. customs duties incurred where appropriate, foreign inland the United States to unaffiliated on the subject merchandise, in freight expenses; foreign warehousing purchasers. accordance with our practice. Id. expenses; foreign brokerage and handling expenses; ocean freight A. Cutrale In accordance with section 772(d)(1) of the Act and 19 CFR 351.402(b), we expenses; bunker fuel surcharges; In accordance with section 772(b) of deducted those selling expenses marine insurance expenses; U.S. the Act, we calculated CEP for those associated with economic activities brokerage and handling expenses; U.S. sales where the merchandise was first occurring in the United States, customs duties, harbor maintenance fees sold (or agreed to be sold) in the United including direct selling expenses (i.e., and merchandise processing fees (offset States before or after the date of bank charges, commissions, imputed by U.S. duty drawback and customs importation by or for the account of the credit expenses, and repacking (offset by duty reimbursements); U.S. inland producer or exporter, or by a seller pallet revenue)), and indirect selling freight expenses (i.e., freight from port affiliated with the producer or exporter, expenses (including inventory carrying to customer); and U.S. warehousing to a purchaser not affiliated with the costs and other indirect selling expenses. We capped reimbursements producer or exporter. In this case, we expenses). We capped U.S. pallet for U.S. customs duties, as well as U.S. are treating all of Cutrale’s U.S. sales as revenue by the amount of repacking duty drawback, by the amount of U.S. CEP sales because they were made in expenses, in accordance with our customs duties incurred on the subject the United States by Cutrale’s U.S. practice. In addition, we recalculated merchandise, in accordance with our affiliate, CPI, on behalf of Cutrale, inventory carrying costs using the practice. See 2005–2007 OJ from Brazil within the meaning of section 772(b) of manufacturing costs reported in at Comment 7 and 2007–2008 OJ from the Act. Cutrale’s most recent cost response, Brazil at Comment 3. Further, we We based CEP on the packed adjusted as noted in the ‘‘Calculation of determined that the international freight delivered prices to unaffiliated Cost of Production’’ section of this expenses provided by Fischer’s purchasers in the United States. For notice, below. affiliated freight provider were not at sales made pursuant to futures Pursuant to section 772(d)(3) of the arm’s length. Therefore, for all sales contracts, we adjusted the reported Act, we further reduced the starting shipped by Fischer’s affiliate, we gross unit price (i.e., the notice price) to price by an amount for profit to arrive assigned the international freight rate
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charged by Fischer’s affiliate to an made at different LOTs if they are made specific LOT findings are summarized unaffiliated party to restate them on an at different marketing stages (or their below. arm’s-length basis. For further equivalent). See 19 CFR 351.412(c)(2). 1. Cutrale discussion, see the April 7, 2010, Substantial differences in selling memorandum to the file from Hector activities are a necessary, but not Cutrale reported that it made CEP Rodriguez, Analyst, entitled sufficient, condition for determining sales through one channel of ‘‘Calculations Performed for Fischer S.A. that there is a difference in the stages of distribution in the United States (i.e., Comercio, Industria, e Agricultura for marketing. Id. See also Notice of Final sales via an affiliated reseller) and thus the Preliminary Results in the 08–09 Determination of Sales at Less Than the selling activities it performed did Antidumping Duty Administrative Fair Value: Certain Cut-to-Length not vary by the type of customer. We Review of Certain Orange Juice from Carbon Steel Plate From South Africa, examined the selling activities Brazil’’ (Fischer Sales Calculation 62 FR 61731, 61732 (Nov. 19, 1997) performed for this channel and found Memo). (Plate from South Africa). In order to that Cutrale performed the following In accordance with sections 772(d)(1) determine whether the comparison selling functions: Maintaining weekly and (2) of the Act and 19 CFR market sales were at different stages in contact with the customer; preparing 351.402(b), we deducted those selling the marketing process than the U.S. quarterly and annual sales forecasts and expenses associated with economic sales, we reviewed the distribution corresponding shipping schedules; activities occurring in the United States, system in each market (i.e., the chain of packing; arranging delivery to the port including direct selling expenses (i.e., distribution), including selling of exportation and the provision of additional processing expenses, functions, class of customer (customer customs clearance/brokerage services; imputed credit expenses, and category), and the level of selling and maintaining inventory at the port of repacking), and indirect selling expenses for each type of sale. exportation. See the February 25, 2010, expenses (including inventory carrying Pursuant to section 773(a)(1)(B)(i) of memorandum to the file from Elizabeth costs, other indirect selling expenses, the Act, in identifying LOTs for EP and Eastwood, Senior Analyst, Office 2, and storage insurance expenses). comparison market sales (i.e., NV based entitled ‘‘Verification of the Sales We made no adjustment to the price on either home market or third country Response of Sucocitrico Cutrale Ltda. for CEP profit, pursuant to section prices),1 we consider the starting prices (Cutrale) in the 2008–2009 772(d)(3) of the Act, because Fischer before any adjustments. For CEP sales, Antidumping Duty Administrative incurred a loss during the POR and it is we consider only the selling activities Review of Certain Orange Juice from ’’ the Department’s practice to not use reflected in the price after the deduction Brazil (Cutrale home market sales ‘‘negative profit’’ rates in its calculations. of expenses and profit under section verification report). Selling activities can be generally See, e.g., Low Enriched Uranium from 772(d) of the Act. See Micron grouped into four selling function France: Final Results of Antidumping Technology, Inc. v. United States, 243 categories for analysis: (1) Sales and Duty Administrative Review, 71 FR F.3d 1301, 1314 (Fed. Cir. 2001). marketing; (2) freight and delivery; (3) 52318 (Sept. 5, 2006), and When the Department is unable to inventory maintenance and match U.S. sales of the foreign like accompanying Issues and Decision warehousing; and (4) warranty and product in the comparison market at the Memorandum at Comment 8; and technical support. See 2007–2008 OJ same LOT as the EP or CEP, the Frozen Concentrated Orange Juice From from Brazil at Comment 2 and Certain Department may compare the U.S. sale Brazil; Final Results and Partial Frozen Warmwater Shrimp From India: to sales at a different LOT in the Rescission of Antidumping Duty Preliminary Results and Preliminary Administrative Review, 64 FR 43650, comparison market. In comparing EP or Partial Rescission of Antidumping Duty 43653 (Aug. 11, 1999). CEP sales at a different LOT in the Administrative Review, 74 FR 9991, comparison market, where available Normal Value 9996 (Mar. 9, 2009), unchanged in data make it practicable, we make an Certain Frozen Warmwater Shrimp from A. Home Market Viability and Selection LOT adjustment under section India: Final Results and Partial of Comparison Markets 773(a)(7)(A) of the Act. Finally, for CEP Rescission of Antidumping Duty In order to determine whether there sales only, if the NV LOT is at a more Administrative Review, 74 FR 33409 was a sufficient volume of sales in the advanced stage of distribution than the (July 13, 2009). Based on these selling home market to serve as a viable basis CEP LOT and there is no basis for function categories, we find that Cutrale for calculating NV, we compared the determining whether the difference in performed sales and marketing, freight volume of home market sales of the LOTs between NV and CEP affects price and delivery services, and inventory foreign like product to the volume of comparability (i.e., no LOT adjustment maintenance and warehousing for U.S. U.S. sales of the subject merchandise, in was practicable), the Department shall sales. Because all sales in the United accordance with section 773(a)(1)(C) of grant a CEP offset, as provided in States are made through a single the Act. section 773(a)(7)(B) of the Act. See Plate distribution channel, we preliminarily We determined that the aggregate from South Africa, 62 FR at 61732–33. determine that there is one LOT in the In this administrative review, we volume of home market sales of the U.S. market. obtained information from each foreign like product for both With respect to the home market, respondent regarding the marketing respondents was sufficient to permit a Cutrale reported that it made sales stages involved in making the reported proper comparison with its U.S. sales of through one channel of distribution (i.e., home market and U.S. sales, including the subject merchandise. direct sales to soft drink manufacturers). a description of the selling activities We examined the selling activities B. Level of Trade performed by each respondent for each performed for home market sales, and Section 773(a)(1)(B)(i) of the Act channel of distribution. Company- found that Cutrale performed the states that, to the extent practicable, the following selling functions: Maintaining 1 Where NV is based on CV, we determine the NV Department will calculate NV based on LOT based on the LOT of the sales from which we weekly contact with customers; visiting sales at the same level of trade (LOT) as derive selling expenses, general and administrative the customer and permitting the the export price (EP) or CEP. Sales are (G&A) expenses, and profit for CV, where possible. customer to visit the factory; preparing
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sales estimates five times a year; order sales via an affiliated reseller) and thus initiation of this review, and such sales processing; advertising via sponsorship the selling activities it performed did were disregarded. See 2005–2007 OJ of a soccer team and signs placed on not vary by the type of customer. We from Brazil, 73 FR at 46585. Thus, in tankers; packing; inventory maintenance examined the selling activities accordance with section 773(b)(2)(A)(ii) at the factory; and arranging delivery to performed for this channel and found of the Act, there are reasonable grounds home market customers. See Cutrale that Fischer performed the following to believe or suspect that Cutrale and home market sales verification report at selling functions: Customer contact and Fischer made home market sales at pages 7–10. In addition to these price negotiation; order processing; prices below the cost of producing the functions, Cutrale also claimed that it arranging for freight and the provision merchandise in the current POR. offered engineering services, technical of customs clearance/brokerage services; assistance, and guarantees to home and inventory maintenance. Selling 1. Calculation of Cost of Production market customers. However, at activities can be generally grouped into In accordance with section 773(b)(3) verification, Cutrale acknowledged that four selling function categories for of the Act, we calculated the it did not in fact provide any of these analysis: (1) Sales and marketing; (2) respondents’ COPs based on the sum of services during the POR. Id. freight and delivery; (3) inventory their costs of materials and conversion Accordingly, based on the four selling maintenance and warehousing; and (4) for the foreign like product, plus function categories listed above, we find warranty and technical support. amounts for G&A expenses and interest that Cutrale performed sales and Accordingly, based on these selling expenses (see ‘‘Test of Comparison marketing, and inventory maintenance function categories, we find that Fischer Market Sales Prices’’ section, below, for and warehousing for home market sales. performed sales and marketing, freight treatment of home market selling Because all home market sales are made and delivery services, and inventory expenses). through a single distribution channel, maintenance and warehousing for U.S. The Department relied on the COP we preliminarily determine that there is sales. Because all sales in the United data submitted by each respondent in its one LOT in the home market for Cutrale. States are made through a single most recently submitted cost database Finally, we compared the CEP LOT to distribution channel, we preliminarily for the COP calculation, except in the the home market LOT and found that determine that there is one LOT in the following instances: the selling functions performed for U.S. U.S. market. a. Cutrale and home market customers do not With respect to the home market, i. In accordance with the transactions differ significantly. Specifically, we Fischer reported that it made sales disregarded rule (i.e., section 773(f)(2) of found that the differences were limited through one channel of distribution and the Act) we adjusted Cutrale’s cost of to the following activities: (1) Visits that the selling activities it performed manufacturing (COM) to reflect the with customers in the home market but did not vary by the type of customer. market value of oranges that were not to/from CPI; (2) Cutrale performed We examined the selling activities purchased from an affiliate as well as limited advertising in the home market performed for home market sales, and the market value of by-products that (such as the sponsorship of a local found that Fischer performed the were sold to affiliated parties; soccer team in Brazil and advertising following selling functions: Customer ii. We adjusted Cutrale’s reported related to the company’s fortieth contact and price negotiation; order COM to remove ICMS taxes from the by- anniversary); and (3) Cutrale input processing; arranging for freight; cold product revenue; orders into the company’s computer storage and inventory maintenance; iii. We revised Cutrale’s general and system for home market sales (vs. the sales and marketing support; and administrative expense rate to include shipment of merchandise from a technical assistance. Accordingly, based the net loss on routine disposals of fixed quarterly shipping schedule for U.S. on the selling function categories listed assets in the numerator and reduce the sales). above, we find that Fischer performed cost of goods sold (COGS), used as the According to 19 CFR 351.412(c)(2), sales and marketing, freight and denominator, by the by-product the Department will determine that delivery services, inventory revenue; and sales are made at different levels of maintenance and warehousing, and iv. We revised Cutrale’s financial trade if they are made at different warranty and technical support for expense rate to reduce the COGS, used marketing stages (or their equivalent). home market sales. Because all home as the denominator, by packing Substantial differences in selling market sales are made through a single expenses and the by-product revenue. activities are a necessary, but not distribution channel, we preliminarily For further discussion of these sufficient, condition for determining determine that there is one LOT in the adjustments, see the April 7, 2010, that there is a difference in the stage of home market for Fischer. Memorandum from Angie Sepulveda, marketing. Therefore, because we Finally, we compared the CEP LOT to Accountant, to Neal M. Halper, Director, determine that substantial differences in the home market LOT and found that Office of Accounting, entitled ‘‘Cost of Cutrale’s selling activities do not exist the selling functions performed for U.S. Production and Constructed Value across markets, we determine that sales and home market customers do not Adjustments for the Preliminary to the U.S. and home markets during the differ significantly. Therefore, we Results—Sucocitrico Cutrale Ltda.’’ POR were made at the same LOT. As a determine that sales to the U.S. and b. Fischer result, neither an LOT adjustment nor a home markets during the POR were i. We adjusted Fischer’s COM to CEP offset is warranted for Cutrale. This made at the same LOT, and as a result, reflect market price for the sale of determination is consistent with neither a LOT adjustment nor a CEP certain by-products to an affiliated findings in previous reviews. See, e.g., offset is warranted for Fischer. party; 2005–2007 OJ from Brazil at Comment ii. We revised Fischer’s G&A C. Cost of Production Analysis 5, and 2007–2008 OJ from Brazil. calculation to include ‘‘other’’ operating We found that both Cutrale and expenses related to provisions and 2. Fischer Fischer made sales below the COP in disposal of fixed assets; and Fischer reported that it made CEP the 2005–2007 administrative review, iii. We adjusted Fischer’s financial sales through one channel of the most recently completed segment of ratio numerator to include long-term distribution in the United States (i.e., this proceeding as of the date of interest expense from an affiliated party
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and exchange rate variations (net), and We found that, for certain products, the manufacturing costs reported in we adjusted the financial ratio more than 20 percent of Cutrale’s and Cutrale’s most recent cost response, denominator for selling expenses and Fischer’s home market sales were at adjusted as noted in the ‘‘Calculation of by-product sales. prices less than the COP and, in Cost of Production’’ section of this See the April 7, 2010, Memorandum addition, such sales did not provide for notice, above. For further discussion of from Christopher J. Zimpo, Accountant, the recovery of costs within a reasonable these adjustments, see the Cutrale Sales to Neal M. Halper, Director Office of period of time. We therefore excluded Calculation Memo. Accounting, entitled ‘‘Cost of Production these sales from our analysis. We used We deducted home market packing and Constructed Value Calculation the remaining sales as the basis for costs and added U.S. packing costs, Adjustments for the Preliminary determining NV for Cutrale, in where appropriate, in accordance with Results—Fischer S.A. Comercio, accordance with section 773(b)(1) of the sections 773(a)(6)(A) and (B) of the Act. Industria and Agricultura.’’ Act. However, because all of Fischer’s Finally, we made adjustments for differences in costs attributable to 2. Test of Comparison Market Sales home market sales failed the cost test, we based NV on CV for this company. differences in the physical Prices characteristics of the merchandise in On a product-specific basis, we D. Calculation of Normal Value Based accordance with section 773(a)(6)(C)(ii) compared the adjusted weighted- on Comparison Market Prices of the Act and 19 CFR 351.411. average COP to the home market sales For Cutrale, we calculated NV based E. Calculation of Normal Value Based prices of the foreign like product, as on ex-factory prices to unaffiliated on Constructed Value required under section 773(b) of the Act, customers. We adjusted the reported in order to determine whether the sales prices to account for the difference Section 773(a)(4) of the Act provides prices were below the COP. For between the standard and actual brix that where NV cannot be based on purposes of this comparison, we used levels at which the foreign like product comparison market sales, NV may be COP exclusive of selling and packing was sold, using facts available under based on CV. Accordingly, because expenses. The prices (inclusive of section 776(a) of the Act. As facts Fischer made no home market sales in billing adjustments, where appropriate) available, we used the highest actual the ordinary course of trade, we based were exclusive of any applicable brix level observed at verification for NV for Fischer on CV. movement charges, direct and indirect any reported home market sale. We find Section 773(e) of the Act provides that selling expenses and packing expenses. that facts available is warranted in this CV shall be based on the sum of the cost We revised Cutrale’s selling expenses as instance because to date Cutrale failed of materials and fabrication for the discussed below under the ‘‘Calculation to provide useable data related to its imported merchandise, plus amounts of Normal Value Based on Comparison actual brix levels. Nonetheless, we have for selling, general, and administrative Market Prices’’ section. afforded Cutrale a final opportunity to (SG&A) expenses, profit, and U.S. packing costs. We calculated the cost of 3. Results of the COP Test provide the necessary information, and we will consider this information, if materials, fabrication and G&A financial In determining whether to disregard submitted in a timely manner for the expenses based on the methodology home market sales made at prices below final results in this review. described in the ‘‘Cost of Production the COP, we examined, in accordance We made adjustments, where Analysis’’ section, above. Because with sections 773(b)(1)(A) and (B) of the appropriate, to the starting price for Fischer did not have home market sales Act: (1) Whether, within an extended billing adjustments, in accordance with in the ordinary course of trade, the period of time, such sales were made in 19 CFR 351.401(c). We also made Department cannot determine profit substantial quantities; and (2) whether adjustments, where appropriate, to the under section 773(e)(2)(A) of the Act, such sales were made at prices which starting price for Brazilian taxes, in which requires sales by the respondent permitted the recovery of all costs accordance with section 773(a)(6)(B)(iii) in question in the ordinary course of within a reasonable period of time in of the Act. We made deductions to the trade in a comparison market. Likewise, the normal course of trade. Where less starting price for foreign warehousing because Fischer does not have sales of than 20 percent of the respondent’s expenses (offset by warehousing any product in the same general home market sales of a given product revenue) in accordance with section category of products as the subject are at prices less than the COP, we do 773(a)(6)(B)(ii) of the Act. We capped merchandise, we are unable to apply not disregard any below-cost sales of warehousing revenue by the amount of alternative (i) of section 773(e)(2)(B) of that product, because we determine that warehousing expenses incurred on the Act. Moreover, because the only in such instances the below-cost sales home market sales, in accordance with respondent in this administrative were not made within an extended our practice. See 2007–2008 OJ from review other than Fischer is Cutrale, we period of time and in ‘‘substantial Brazil at Comment 3. We made are unable to apply alternative (ii) of quantities.’’ Where 20 percent or more of deductions from the starting price for section 773(e)(2)(B) of the Act (i.e., the a respondent’s sales of a given product home market credit expenses (offset by weighted average of the actual amounts are at prices less than the COP, we interest revenue) pursuant to section incurred and realized by exporters or disregard the below-cost sales when: (1) 773(a)(6)(C) of the Act. We recalculated producers that are subject to this review They were made within an extended credit expenses to base the home market (other than the exporter or producer period of time in ‘‘substantial interest rate on Cutrale’s actual described in clause (i)), because using quantities,’’ in accordance with sections borrowings during the POR. Where Cutrale’s actual amounts would disclose 773(b)(2)(B) and (C) of the Act, and (2) applicable, in accordance with 19 CFR Cutrale’s business proprietary data. based on our comparison of prices to the 351.410(e), we offset any commission Therefore, we calculated Fischer’s CV weighted-average COPs for the POR, paid on a U.S. sale by reducing the NV profit and selling expenses based on they were at prices which would not by the amount of home market indirect alternative (iii) of this section, in permit the recovery of all costs within selling expenses and inventory carrying accordance with section 773(e)(2)(B)(iii) a reasonable period of time, in costs, up to the amount of the U.S. of the Act. As a result, we calculated accordance with section 773(b)(2)(D) of commission. We calculated home Fischer’s CV profit and selling expenses the Act. market inventory carrying costs using using its own data for home market
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sales in the ordinary course of trade in Department intends to issue the final shipments of the subject merchandise the most recently completed segment of results of this administrative review, entered, or withdrawn from warehouse, this proceeding (i.e., the 2007–2008 including the results of its analysis of for consumption on or after the administrative review). For further the issues raised in any written briefs, publication date of the final results of discussion, see the Fischer Sales not later than 120 days after the date of this administrative review, as provided Calculation Memo. publication of this notice, pursuant to by section 751(a)(2)(C) of the Act: (1) For comparisons to CEP, we deducted section 751(a)(3)(A) of the Act. The cash deposit rate for each specific home market direct selling expenses Assessment Rates company listed above will be that from CV. Id. We also made adjustments, Upon completion of the established in the final results of this where applicable, for home market review, except if the rate is less than indirect selling expenses to offset U.S. administrative review, the Department 0.50 percent and, therefore, de minimis commissions. See 19 CFR 351.410(e). shall determine, and CBP shall assess, antidumping duties on all appropriate within the meaning of 19 CFR Currency Conversion entries, in accordance with 19 CFR 351.106(c)(1), in which case the cash We made currency conversions into 351.212. The Department will issue deposit rate will be zero; (2) for U.S. dollars, in accordance with section appropriate appraisement instructions previously reviewed or investigated 773A of the Act and 19 CFR 351.415, for the companies subject to this review companies not participating in this based on the exchange rates in effect on directly to CBP 15 days after the date of review, the cash deposit rate will the dates of the U.S. sales as certified by publication of the final results of this continue to be the company-specific rate the Federal Reserve Bank. review. published for the most recent period; (3) We will calculate importer-specific ad if the exporter is not a firm covered in Preliminary Results of the Review valorem duty assessment rates based on this review, or the original less than fair We preliminarily determine that the ratio of the total amount of value (LTFV) investigation, but the weighted-average dumping margins antidumping duties calculated for the manufacturer is, the cash deposit rate exist for the respondents for the period examined sales to the total entered will be the rate established for the most March 1, 2008, through February 28, value of the sales. We will instruct CBP recent period for the manufacturer of to assess antidumping duties on all 2009, as follows: the merchandise; and (4) the cash appropriate entries covered by this deposit rate for all other manufacturers Manufacturer/exporter Percent review if any importer-specific margin assessment rate calculated in the final or exporters will continue to be 16.51 results of this review is above de percent, the all-others rate made Sucocitrico Cutrale, S.A...... 8.29 minimis. Pursuant to 19 CFR effective by the LTFV investigation. See Fischer S.A. Comercio, OJ Order, 71 FR at 12184. These deposit Industria, and Agricultura ...... 5.26 351.106(c)(2), we will instruct CBP to liquidate without regard to antidumping requirements, when imposed, shall remain in effect until further notice. Disclosure and Public Hearing duties any entries for which the assessment rate is de minimis. See 19 Notification to Importers The Department will disclose to CFR 351.106(c)(1). The final results of parties the calculations performed in this review shall be the basis for the This notice also serves as a connection with these preliminary assessment of antidumping duties on preliminary reminder to importers of results within five days of the date of entries of merchandise covered by the their responsibility under 19 CFR publication of this notice. See 19 CFR final results of this review and for future 351.402(f) to file a certificate regarding 351.224(b). Pursuant to 19 CFR 351.309, deposits of estimated duties, where the reimbursement of antidumping interested parties may submit cases applicable. briefs not later than 30 days after the duties prior to liquidation of the The Department clarified its relevant entries during this review date of publication of this notice. ‘‘automatic assessment’’ regulation on period. Failure to comply with this Rebuttal briefs, limited to issues raised May 6, 2003. See Antidumping and requirement could result in the in the case briefs, may be filed not later Countervailing Duty Proceedings: Secretary’s presumption that than five days after the time limit for Assessment of Antidumping Duties, 68 filing the case briefs. Parties who submit FR 23954 (May 6, 2003) (Assessment reimbursement of antidumping duties case briefs or rebuttal briefs in this Policy Notice). This clarification will occurred and the subsequent assessment proceeding are requested to submit with apply to entries of subject merchandise of double antidumping duties. each argument: (1) A statement of the during the POR produced by companies This administrative review and notice issue; (2) a brief summary of the included in these final results of review are published in accordance with argument; and (3) a table of authorities. for which the reviewed companies did sections 751(a)(1) and 777(i)(1) of the See 19 CFR 351.309(c)(2). not know that the merchandise they Act and 19 CFR 351.221. Pursuant to 19 CFR 351.310(c), sold to the intermediary (e.g., a reseller, Dated: April 7, 2010. interested parties who wish to request a trading company, or exporter) was hearing, or to participate if one is destined for the United States. In such Ronald K. Lorentzen, requested, must submit a written instances, we will instruct CBP to Deputy Assistant Secretary for Import request to the Assistant Secretary for liquidate unreviewed entries at the all- Administration. Import Administration, Room 1870, others rate if there is no rate for the [FR Doc. 2010–8422 Filed 4–12–10; 8:45 am] within 30 days of the date of publication intermediary involved in the BILLING CODE 3510–DS–P of this notice. Requests should contain: transaction. See Assessment Policy (1) The party’s name, address and Notice for a full discussion of this telephone number; (2) the number of clarification. participants; and (3) a list of issues to be discussed. Id. Issues raised in the Cash Deposit Requirements hearing will be limited to those raised The following cash deposit in the respective case briefs. The requirements will be effective for all
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DEPARTMENT OF COMMERCE questionnaire to Wieland. We received to 19 CFR 351.402(f).2 In a letter to the Wieland’s response to Section A of the Department dated March 8, 2010, at International Trade Administration Department’s questionnaire on June 11, page 6, Wieland rebuts the Petitioners’ [A–428–602] 2009 (Section AQR), Sections B–C on assertion that its single U.S. sale is July 1, 2009 (Section B–C QR), and subject to the aforementioned Brass Sheet and Strip From Germany: Section D on July 21, 2009 (Section regulation, arguing that Wieland ‘‘was Preliminary Results of Antidumping DQR). The Department received both the exporter and importer and thus Duty Administrative Review comments from the Petitioners 1 cannot reimburse itself.’’ regarding Wieland’s questionnaire The Department has considered the AGENCY: Import Administration, responses on June 25, 2009, July 2, International Trade Administration, facts of the instant review. Consistent 2009, October 22, 2009, and February 4, with the Department’s practice with U.S. Department of Commerce. 2010. SUMMARY: The Department of Commerce respect to this issue, we do not find that After reviewing the Sections A (the Department) is conducting an Wieland’s sale to the United States through D responses from Wieland, the administrative review of the during the POR is subject to 19 CFR Department issued supplemental antidumping duty order on brass sheet 351.402(f). Our decision as to questionnaires to Wieland. The and strip (BSS) from Germany. For the reimbursement is based upon our Department issued additional period of review (POR) March 1, 2008, interpretation of this regulation, which through February 28, 2009, we have supplemental questions, after reviewing is that two separate corporate entities preliminarily determined that U.S. sales Wieland’s supplemental questionnaire must exist to invoke the reimbursement have not been made below normal value responses. On November 18, 2009, the regulation. See Circular Welded Non- (NV). If these preliminary results are Department issued an extension of the Alloy Steel Pipe and Tube From Mexico: adopted in our final results, we will deadline for the preliminary results of Final Results of Antidumping Duty instruct U.S. Customs and Border this antidumping duty administrative Administrative Review, 63 FR 33041, Protection (CBP) to assess antidumping review from December 1, 2009, until 33044 (June 17, 1998). In this instance, duties on all appropriate entries of March 31, 2010. See Brass Sheet and though it is both an exporter and subject merchandise during the POR. Strip from Germany: Notice of Extension importer, there is still only one Interested parties are invited to of Time Limit for Preliminary Results of corporate entity, Wieland, not two. comment on these preliminary results. Administrative Review, 74 FR 59523 (November 18, 2009). As explained in Scope of the Order DATES: Effective Date: April 13, 2010. the memorandum from the Deputy FOR FURTHER INFORMATION CONTACT: The scope of this order covers Assistant Secretary for Import shipments of brass sheet and strip, other Dennis McClure or George McMahon, Administration, the Department has AD/CVD Operations, Office 3, Import than leaded and tinned, from Germany. exercised its discretion to toll deadlines The chemical composition of the Administration, International Trade for the duration of the closure of the Administration, U.S. Department of covered products is currently defined in Federal Government from February 5, Commerce, 14th Street and Constitution the Copper Development Association through February 12, 2010. Thus, all Avenue, NW., Washington DC 20230; (C.D.A.) 200 Series or the Unified deadlines in this segment of the telephone: (202) 482–5973 or (202) 482– Numbering System (U.N.S.) C2000; this proceeding have been extended by 1167, respectively. review does not cover products the seven days. The revised deadline for the SUPPLEMENTARY INFORMATION: chemical compositions of which are preliminary results of this antidumping defined by other C.D.A. or U.N.S. series. Background duty administrative review is now April In physical dimensions, the products The Department published in the 7, 2010. See Memorandum to the Record covered by this review have a solid Federal Register the antidumping duty from Ronald Lorentzen, DAS for Import rectangular cross section over 0.006 order on BSS from Germany on March Administration, regarding ‘‘Tolling of inches (0.15 millimeters) through 0.188 6, 1987 (52 FR 6997), amended on Administrative Deadlines As a Result of inches (4.8 millimeters) in finished September 23, 1987 (52 FR 35750). the Government Closure During the thickness or gauge, regardless of width. On May 5, 2008, the Department Recent Snowstorm,’’ dated February 12, Coiled, wound-on-reels (traverse published a notice of opportunity to 2010.’’ wound), and cut-to-length products are request an administrative review of this In letters to the Department dated included. The merchandise is currently order for the POR. See Antidumping or March 4, 2010, and March 12, 2010, the classified under Harmonized Tariff Countervailing Duty Order, Finding, or Petitioners state that Wieland was the Schedule of the United States (HTSUS) Suspended Investigation; Opportunity importer of record for the U.S. sale item numbers 7409.21.00 and To Request Administrative Review, 74 made during the POR and, therefore, 7409.29.00. Although the HTSUS item FR 9077 (March 2, 2009). On March 30, Wieland is liable for any antidumping numbers are provided for convenience 2009, the Department received a timely duties assessed. Pursuant to Wieland’s and customs purposes, the Department’s request for an administrative review of role as the importer, the Petitioners written description of the scope of this this antidumping duty order from allege that Wieland has put itself in a order remains dispositive. Wieland-Werke AG (Wieland). On April position to make payment or Period of Review 27, 2009, we published a notice reimbursement of any antidumping initiating an administrative review of duties related to its U.S. sale. As such, The period of review is March 1, the antidumping duty order on BSS the Petitioners assert that the 2008, through February 28, 2009. from Germany covering one respondent, transaction in question is subject to a Wieland. See Initiation of Antidumping reduction in the export price, pursuant 2 19 CFR 351.402(f) states: (f) Reimbursement of and Countervailing Duty Administrative antidumping duties and countervailing duties—(1) Reviews and Request for Revocation in 1 The Petitioners include GBC Metals, LLC of In general. (i) In calculating the export price (or the Global Brass and Copper, Inc., doing business as constructed export price), the Secretary will deduct Part, 74 FR 19042 (April 27, 2009). Olin Brass, Heyco Metals, Inc., Luvata Buffalo, Inc., the amount of any AD duty or CVD duty which the On May 7, 2009, the Department PMX Industries, Inc., and Revere Copper Products, exporter or producer: (A) Paid directly on behalf of issued an antidumping duty Inc. the importer; or (B) Reimbursed to the importer.
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Verification price comparisons outside of a quarter. home markets, in which the quantity As provided in section 782(i) of the See below and Memorandum through exceeds its standard tolerance, and the Tariff Act of 1930, as amended (the Act), James Terpstra from Dennis McClure, basis for such increases can only be ‘‘ ‘‘ we intend to verify the information titled Sales Analysis Memorandum— supported by unwritten ’’ relied upon prior to the final results of Wieland-Werke AG (Sales Analysis understandings/established practices. Memo—Wieland),’’ dated April 7, 2010, the instant review. Our verification Based on the fact that there is no written and available in the CRU. results will be outlined in the public contract or sales agreement documenting agreement to the change in version of our verification report, which Export Price will be on file in the Department’s terms, the Department finds that the For the price to the United States, we invoice date represents the date in Central Records Unit (CRU), Room 1117 used EP, in accordance with section of the Main Commerce Building. which the material terms of sale are 772(a) of the Act. We calculated EP finalized.4 Because the data specific to Analysis when the merchandise was sold by the the date of sale discussion are producer or exporter outside of the Product Comparisons proprietary in nature, see the United States directly to the first Department’s sales calculation In accordance with section 771(16) of unaffiliated purchaser in the United memorandum from Dennis McClure the Act, we considered all products States prior to importation. We based EP through James Terpstra to the File titled, produced by the respondent that are on the reported delivery term to the first ‘‘Sales Analysis Memo—Wieland’’ for covered by the description contained in unaffiliated customer in, or for additional details. the ‘‘Scope of the Order’’ section above exportation to, the United States. and were sold in the home market In accordance with section 772(c)(2) Normal Value during the POR, to be the foreign like of the Act, we made deductions, where A. Home Market Viability appropriate, for movement expenses product for purposes of determining In accordance with section appropriate product comparisons to including inland freight from plant or warehouse to port of exportation, 773(a)(1)(C) of the Act, to determine U.S. sales. Where there were no sales of whether there was a sufficient volume identical merchandise in the home foreign brokerage, handling and loading charges, international freight, insurance, of sales in the home market to serve as market to compare to U.S. sales, we a viable basis for calculating NV, we compared U.S. sales to the most similar U.S. inland freight expenses, other transportation expenses for cargo compared Wieland’s volume of home foreign like product on the basis of the market sales of the foreign like product characteristics listed in Appendix V of scanning and port charges, and U.S. duties. See Sales Analysis Memo— to the volume of U.S. sales of the subject the initial antidumping questionnaire merchandise. Pursuant to section we provided to Wieland.3 When there Wieland. As stated at 19 CFR 351.401(i), the 773(a)(1)(B) of the Act and 19 CFR were no appropriate comparison market 351.404(b), because Wieland’s aggregate sales of comparable merchandise, we Department will use the respondent’s invoice date as the date of sale unless volume of home market sales of the compared the merchandise sold in the another date better reflects the date foreign like product was greater than United States to constructed value (CV), upon which the exporter or producer five percent of its aggregate volume of in accordance with section 773(a)(4) of establishes the essential terms of sale. U.S. sales of the subject merchandise, the Act. Wieland reported the order we determined that the home market For purposes of the preliminary confirmation date as the date of sale for was viable. results, where appropriate, we have the U.S. market and the earlier of calculated the adjustment for Arm’s-Length Test fabrication order confirmation date, differences in merchandise based on the shipment date, or invoice date as the Sales to affiliated customers in the difference in the variable cost of sale date in the home market, claiming home market not made at arm’s length manufacturing (VCOM) between each that these dates reflect the date on were excluded from our analysis. To test U.S. model and the most similar home which the material terms of sale were whether these sales were made at arm’s market model selected for comparison. finalized. See Section B–C QR at B–12– length, we compared the starting prices Normal Value Comparisons B–13 and C–7. of sales to affiliated and unaffiliated We have examined the information on customers net of all movement charges, To determine whether sales of subject the record and preliminarily find that direct selling expenses, discounts, and merchandise to the United States were the invoice date better reflects the date packing. In accordance with the made at less than NV, we compared the upon which the producer established its Department’s practice, if the prices export price (EP) to the NV, as described material terms of sale in both the U.S. charged to an affiliated party were, on in the ‘‘Export Price’’ and ‘‘Normal and home markets. Specifically, average, between 98 and 102 percent of Value’’ sections of this notice. During Wieland reported that its ‘‘written the prices charged to unaffiliated parties the POR, Wieland had only one general terms of delivery, applicable to for merchandise identical or most shipment of BSS to the United States. both domestic and export sales, provide similar to that sold to the affiliated In accordance with section 777A(d)(2) that Wieland is entitled to make excess party, we consider the sales to be at of the Act, we calculated monthly or short deliveries up to 10 percent of arm’s-length prices. See 19 CFR weighted-average prices for NV and the agreed weights or units. However, 351.403(c); see also Certain Corrosion- compared these to the individual U.S. Wieland has unwritten understandings/ Resistant Carbon Steel Flat Products transaction price. In order to lessen the established practices with certain from the Republic of Korea: Notice of potential distortion to sales prices customers allowing for greater Preliminary Results of the Antidumping which result from significantly changing variations without prior approval.’’ See Duty Administrative Review, 74 FR costs, we are using a quarterly costing Wieland’s Section A–C Supplemental approach; we have not made price-to- 4 Questionnaire Response (Section A–C See Notice of Final Determination of Sales at Less Than Fair Value: Citric Acid and Certain 3 See the Department’s Antidumping Duty SQR), dated September 29, 2010, at Citrate Salts from Canada, 74 FR 16843 (April 13, Questionnaire issued to Wieland, dated May 7, SAC–29. Thus, Wieland has reported 2009), and accompanying Issues and Decision 2009, on the record in the CRU. sales transactions, in both the U.S. and Memorandum at Comment 1.
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46110, 46112 (September 8, 2009); Administrative Review, 74 FR 6365 calculations. Thus, we used quarterly unchanged in the final, see Certain (February 9, 2009) (2006–2007 Final indexed annual average direct material Corrosion-Resistant Carbon Steel Flat Results). costs and annual weighted-average Products from the Republic of Korea: fabrication costs in the COP and CV a. Significance of Cost Changes Notice of Final Results of the Fifteenth calculations. Administrative Review, 75 FR 13490 Record evidence indicates that C. Cost of Production Analysis (March 22, 2010). Conversely, where the Wieland experienced significant affiliated party did not pass the arm’s- changes in the total COM during the Because we found that Wieland did length test, all sales to that affiliated POR and that the change in COM is not act to the best of its ability in party have been excluded from the NV primarily attributable to the price providing information to the calculation. See Antidumping volatility for copper and zinc, major Department in the most recently Proceedings: Affiliated Party Sales in inputs consumed in the production of completed administrative review in the Ordinary Course of Trade, 67 FR the merchandise under consideration. which it participated, we applied total 69186 (November 15, 2002). For the The record indicates that copper and adverse facts available which included arm’s-length test, we matched only zinc prices have decreased dramatically a finding on that basis that Wieland’s affiliated sales to unaffiliated sales throughout the POR. Specifically, the sales were made below cost. Therefore, within the same quarter in which the record data show that the percentage the Department disregarded sales below sale occurred, because we are using a difference between the high and low the COP in the last completed review in quarterly costing approach, to lessen the quarterly costs for brass products which Wieland participated.5 potential distortion to sales prices exceeded 25 percent during the POR. As Therefore, the Department finds which result from significantly changing a result, we have determined for the reasonable grounds to believe or costs. preliminary results that the changes in suspect, pursuant to section COM for Wieland are significant. 773(b)(2)(A)(ii) of the Act, that sales of B. Cost Reporting Period the foreign like product under b. Linkage Between Cost and Sales The Department’s normal practice is consideration for the determination of Information to calculate an annual weighted-average NV in this review may have been made cost for the entire POR. See, e.g., Certain If the Department finds cost changes at prices below COP. Thus, pursuant to Pasta from Italy: Final Results of to be significant in a given section 773(b)(1) of the Act, we Antidumping Duty Administrative administrative review or investigation, examined whether sales from Wieland Review, 65 FR 77852 (December 13, the Department subsequently evaluates in the home market were made at prices 2000) (Pasta from Italy), and whether there is evidence of linkage below the COP. accompanying Issues and Decision between the cost changes and the sales We compared sales of the foreign like Memorandum at Comment 18 and prices for the given POI/POR. Our product in the home market with Notice of Final Results of Antidumping definition of linkage does not require model-specific COP figures. In Duty Administrative Review of Carbon direct traceability between specific sales accordance with section 773(b)(3) of the and Certain Alloy Steel Wire Rod from and their specific production cost, but Act, we calculated COP based on the Canada, 71 FR 3822 (January 24, 2006) rather relies on whether there are sum of the costs of materials and (Wire Rod from Canada), and elements which would indicate a fabrication employed in producing the accompanying Issues and Decision reasonable correlation between the foreign like product, plus selling, Memorandum at Comment 5 (explaining underlying costs and the final sales general and administrative (SG&A) the Department’s practice of computing prices levied by the company. These expenses, financial expenses and all a single weighted-average cost for the correlative elements may be measured costs and expenses incidental to placing entire period). This methodology is and defined in a number of ways the foreign like product in packed predictable and generally applicable in depending on the associated industry, condition and ready for shipment. all proceedings. However, the and the overall production and sales In our sales-below-cost analysis, we Department recognizes that possible processes. relied on home market sales and COP distortions may result when our annual In the instant case, Wieland’s sales information provided by Wieland in its average cost method is used during a process is effectively the sale of two questionnaire responses, except where period of significant cost changes. separate products: commodity metal noted below. In these circumstances, in (i.e., copper and zinc) and fabrication. As discussed above, we used determining whether to deviate from For metal, which represents a quarterly indexed annual average direct our normal methodology, the significant part of the total price, material costs and annual weighted- Department has evaluated the case- customers are charged a price that is average conversion costs in the COP and specific record evidence using two determined, for the most part, on the CV calculations. See Sales Analysis primary factors: (1) the change in the London Metal Exchange (LME) metal Memo—Wieland and Memorandum cost of manufacturing (COM) recognized price on the date of the customer’s from Ernest Gziryan to Neal Halper by the respondent during the POR must choosing (the ‘‘metal fixation date’’). ‘‘Cost of Production and Constructed be deemed significant; and, (2) the We find that, because both the metal Value Calculation Adjustments for the record evidence must show that sales costs and prices charged for the metal Preliminary Results—Wieland-Werke during the shorter averaging periods are reasonably linked to the market AG (Wieland),’’ dated April 7, 2010 could be reasonably linked with the cost prices promulgated by the LME, there is (Wieland Cost Calculation Memo— of production (COP) or CV during the a reasonable link between the Wieland). same shorter averaging periods. See, underlying costs and sales prices. Volatility in Raw Materials e.g., Stainless Steel Plate in Coils From In light of the two factors discussed Wieland explains that it offers three Belgium: Final Results of Administrative above, we have preliminarily types of sales: single date (release) Review, 73 FR 75398, 75399 (December determined that a quarterly costing 11, 2008) (SSPC from Belgium) and approach with respect to Wieland 5 See Final Results of Antidumping Duty Stainless Steel Sheet and Strip in Coils would lead to more accurate Administrative Review: Brass Sheet and Strip from from Mexico: Final Results of comparisons in our antidumping duty Germany, 64 FR 43342 (August 10, 1999).
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pricing, split date pricing, and tolling. volatility experienced in commodity expenses. See Sales Analysis Memo— See Section AQR at 34–35. In its Section metal prices in this particular POR, the Wieland. AQR, Wieland asserts that the volatility date of sale methodology and in daily commodity metal prices transaction-to-average price 3. Results of COP Test experienced during the POR poses comparisons may not adequately Where less than 20 percent of the unique issues that the Department’s account for the volatility in metal prices respondent’s home market sales of a traditional antidumping methodology which occurred during the POR. given model were at prices below the does not adequately account for. For Therefore, for these preliminary results, COP, we did not disregard any below- example, Wieland states that in the case we are accounting for the volatility in cost sales of that model because we of split pricing sales in the home commodity metal prices by ensuring determined that the below-cost sales market, a U.S. sale with a metal fixation that the home market sales selected for were not made within an extended date occuring on one date would be comparison purposes will first be period of time and in ‘‘substantial compared with home market sales in matched based on the invoice date as quantities.’’ Where 20 percent or more of which that metal fixation date falls, not the date of sale, and secondly, will have the respondent’s home market sales of a only on a different date, but also in a metal fixation date in the same month given model were at prices less than the completely different months (since as the metal fixation date of the U.S. COP, we disregarded the below-cost metal fixation can occur both before and sale. Absent a metal fixation date in the sales because: (1) they were made after the fabrication order confirmation same month, we will make comparisons within an extended period of time in date). Wieland states that customers in based on the same quarter of the POR ‘‘substantial quantities,’’ in accordance the United States and Germany that as the metal fixation date reported for with sections 773(b)(2)(B) and (C) of the purchased metal with the same metal Wieland’s U.S. sale. Absent such a Act; and (2) based on our comparison of fixation date will pay the same price for match, we will use CV as the basis for prices to the indexed POR weighted- the LME metal price component of their comparison to Wieland’s U.S. sale. We average COPs, they were at prices which metal purchase. However, Wieland find that by limiting the comparisons to would not permit the recovery of all asserts that if the price comparison is sales made within the same quarter of costs within a reasonable period of time, made such that sales with different the POR and the same month for the in accordance with section 773(b)(2)(D) metal fixation dates are compared, metal fixation date, we reasonably of the Act. margins will be artificially created or account for the volatility experienced by masked simply because LME metal Wieland during the POR associated with Therefore, for Wieland, we prices fluctuate. its split date pricing structure, thereby, disregarded below-cost sales of a given Wieland asserts that, because the LME preventing potential distortions in the product of 20 percent or more and used metal price is a full pass through to the Department’s transaction-to-average the remaining sales as the basis for customer, and is treated as such by price comparison methodology. determining NV, in accordance with Wieland both in its sales and cost section 773(b)(1) of the Act. See Sales accounting, the Department should 1. Calculation of COP Analysis Memo—Wieland. make a circumstance of sale (COS) Before making any comparisons to adjustment which adjusts for the price D. Calculation of Normal Value Based NV, we conducted a quarterly COP difference resulting from differences in on Comparison Market Prices analysis of Wieland pursuant to section metal fixation dates between U.S. and 773(b) of the Act to determine whether We calculated NV based on the home market sales. More specifically, reported delivery terms to comparison Wieland proposes that the Department Wieland comparison market sales were made at prices below the COP. We market customers. We made deductions adjust all U.S. and Home Market sales from the starting price, when prices by the LME metal price for the calculated the COP based on the sum of the cost of materials and fabrication for appropriate, for handling, loading, alloy on the metal fixation date inland freight, warehousing, inland associated with the specific sale. In its the foreign like product, plus amounts for SG&A expenses and packing, in insurance, discounts, and rebates. In letter dated June 25, 2009, at 14, the accordance with sections 773(a)(6)(A) Petitioners state that the Department has accordance with section 773(b)(3) of the Act. and (B) of the Act, we added U.S. never, to the best of its knowledge, packing costs and deducted comparison adjusted metal pricing components as a 2. Test of Comparison Market Prices market packing, respectively. In circumstance of sale. The Petitioners As required under section 773(b)(2) of addition, we made circumstance-of-sale state that if Wieland believes that adjustments for direct expenses, changes in the prices of copper and zinc the Act, we compared the quarterly including imputed credit expenses, in during the POR were (1) Very weighted-average COP to the per-unit accordance with section 773(a)(6)(C)(iii) significant, (2) related to long-term price of the comparison market sales of of the Act. Where appropriate, we added changes and (3) that in and of the foreign like product based on the other revenue and applied billing themselves, (i.e., apart from other cost metal fixation date to determine adjustments to the gross unit price. factors), unduly changed total whether these sales had been made at production costs, then the proper prices below the COP within an When comparing U.S. sales with methodological remedy might be a extended period of time in substantial comparison market sales of similar, but potential change in the temporal quantities, and whether such prices not identical, merchandise, we also structure of the cost of production. Id. were sufficient to permit the recovery of made adjustments for physical The Department does not find that a all costs within a reasonable period of differences in the merchandise in COS adjustment is warranted in the time. We determined the net accordance with section 773(a)(6)(C)(ii) instant review, because it is the comparison market prices for the below- of the Act and 19 CFR 351.411. We Department’s practice to limit such cost test by subtracting from the gross based this adjustment on the difference adjustments to direct selling expenses. unit price any applicable movement in the variable cost of manufacture However, the Department preliminarily charges, discounts, rebates, direct and (VCOM) for the foreign like product and finds that, based on the sales pricing indirect selling expenses (also subject merchandise, using weighted- structure reported by Wieland and the subtracted from the COP), and packing average costs.
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E. Level of Trade order processing, the salesperson’s time, results of this administrative review, if Section 773(a)(1)(B)(i) of the Act and logistics support. Furthermore, any importer-specific assessment rates states that, to the extent practicable, the Wieland states that its selling functions calculated in the final results are above Department will calculate NV based on do not vary by type of customer. See de minimis (i.e., at or above 0.5 percent), sales at the same level of trade (LOT) as Section AQR at Section A–C SQR at the Department will issue appraisement the EP or CEP. Sales are made at SAC–7. instructions directly to CBP to assess In the U.S. market, Wieland reported different LOTs if they are made at antidumping duties on appropriate that its sale was made through one different marketing stages (or their entries by applying the assessment rate channel of distribution to one customer equivalent). See 19 CFR 351.412(c)(2). to the entered value of the merchandise. category, and therefore, at one LOT. The Substantial differences in selling For assessment purposes, we calculated Department has determined that activities are a necessary, but not importer-specific assessment rates for Wieland’s home market sales were made sufficient, condition for determining the subject merchandise by aggregating at one LOT and at the same stage of the dumping margins for all U.S. sales that there is a difference in the stages of marketing as the U.S. sales LOT. to each importer and dividing the marketing. See Notice of Final Therefore, the Department will not amount by the total entered value of the Determination of Sales at Less Than make an LOT adjustment for Wieland’s sales to that importer. Where Fair Value: Certain Cut-to-Length sale to the United States. appropriate, to calculate the entered Carbon Steel Plate From South Africa, value, we subtracted international 62 FR 61731, 61732 (November 19, Currency Conversion movement expenses (e.g., international 1997) (Plate from South Africa). For purposes of these preliminary freight) from the gross sales value. Consistent with 19 CFR 351.412, to results, we made currency conversions The Department clarified its determine whether comparison market in accordance with section 773A(a) of ‘‘automatic assessment’’ regulation on sales were at a different LOT than the the Act, based on the official exchange May 6, 2003 (68 FR 23954). This U.S. sales, we examined stages in the rates published by the Federal Reserve clarification will apply to entries of marketing process and selling functions Bank. subject merchandise during the POR along the chain of distribution between Preliminary Results of Review produced by companies included in the producer and the unaffiliated (or these preliminary results of review for arm’s-length) customers, including As a result of our review, we which the reviewed companies did not selling functions, class of customer preliminarily determine that the know their merchandise was destined (customer category), and the level of following weighted-average percentage for the United States. In such instances, selling expenses for each type of sale. If margin exists for the period March 1, we will instruct CBP to liquidate the comparison market sales were at a 2008, through February 28, 2009, for unreviewed entries at the all-others rate different LOT and the differences affect Wieland: if there is no rate for the intermediate price comparability, as manifested in a company(ies) involved in the pattern of consistent price differences Margin Manufacturer/exporter (percent) transaction. For a full discussion of this between the sales on which NV is based clarification, see Antidumping and and comparison market sales at the LOT Wieland-Werke AG ...... 0.00 Countervailing Duty Proceedings: of the export transaction, we will make Assessment of Antidumping Duties, 68 an LOT adjustment under section The Department will disclose the FR 23954 (May 6, 2003). 773(a)(7)(A) of the Act. calculations performed for these Cash Deposit Requirements Wieland reported that its U.S. sale preliminary results within five days of and home market sales were made at the the date of publication of this notice to To calculate the cash deposit rate for same LOT. Wieland has two channels of the parties of this proceeding, in Wieland, we divided its total dumping distribution for U.S. sales: (1) accordance with 19 CFR 351.224(b). An margin by the total net value of its sales manufacture to order and ship directly interested party may request a hearing during the review period. The following to customer, and (2) sales through within 30 days of publication of these deposit rates will be effective upon Wieland Metals, Inc. The one sale preliminary results. See 19 CFR publication of the final results of this occurring during the POR was made 351.310(c). Pursuant to section 782(i) of administrative review for all shipments through channel (1) to an end-user. the Act, the Department intends to of BSS from Germany entered, or Wieland reported that during the POR, verify the information upon which we withdrawn from warehouse, for it sold subject merchandise through one will rely in making our final consumption on or after the publication channel of distribution in both the U.S. determination. As a result, we intend to date, as provided by section 751(a)(2)(C) and home market, which is direct to the establish the briefing schedule upon the of the Act: (1) The cash deposit rate for customer, to one customer category in completion of verification. companies subject to this review will be the United States and three customer Pursuant to section 751(3)(A) of the the rate established in the final results categories in the home market, Act and 19 CFR 351.213(h), the of this review, except if the rate is less consisting of OEM/end users, broker/ Department intends to issue the final than 0.5 percent and, therefore, de distributors, and service center/slitting results of this administrative review, minimis, no cash deposit will be center. which will include the results of its required; (2) for previously reviewed or Our analysis of the selling activities analysis of issues raised in any such investigated companies not listed above, for Wieland shows that there is overlap comments, or at a hearing, if requested, the cash deposit rate will continue to be in these activities for channels of within 120 days of publication of these the company-specific rate published for distribution and customer categories. preliminary results. the most recent final results for a review Wieland performs similar selling in which that manufacturer or exporter activities for all customer categories and Assessment Rate participated; (3) if the exporter is not a channels of distribution. Wieland Pursuant to 19 CFR 351.212(b), the firm covered in this review, a prior reports that its sales functions are basic Department calculated an assessment review, or the original less-than-fair- services provided for all sales. For rate for each importer of the subject value (LTFV) investigation, but the example, every sale involves packing, merchandise. Upon issuance of the final manufacturer is, the cash deposit rate
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will be the rate established for the most S.p.A. (‘‘De Cecco Pastificio’’)/Molino e the Commission of the European Union recent final results for the manufacturer Pastificio De Cecco S.p.A. (‘‘De Cecco (‘‘EU’’), the Government of Italy (‘‘GOI’’), of the merchandise; and (4) if neither Pescara’’), members of the De Cecco De Cecco Pastificio and Garofalo. We the exporter nor the manufacturer is a group of companies, received de received responses to our questionnaires firm covered in this or any previous minimis countervailable subsidies. See in December 2009. We issued review conducted by the Department, the ‘‘Preliminary Results of Review’’ supplemental questionnaires to De the cash deposit rate will be 7.30 section, below. Interested parties are Cecco Pastificio, Garofalo, and the GOI percent, the all-others rate established invited to comment on these in January and March 2010, and we in the LTFV investigation. See preliminary results. See the ‘‘Public received responses to our supplemental Antidumping Duty Order: Brass Sheet Comment’’ section of this notice. questionnaires in February, March, and and Strip from the Federal Republic of DATES: Effective Date: April 13, 2010. April 2010. As explained in the memorandum Germany, 52 FR 6997 (March 6, 1987), FOR FURTHER INFORMATION CONTACT: from the Deputy Assistant Secretary for amended at 52 FR 35750 (September 23, Andrew McAllister or Anna Flaaten, Import Administration, the Department 1987). These cash deposit requirements, AD/CVD Operations, Office 1, Import has exercised its discretion to toll when imposed, shall remain in effect Administration, U.S. Department of deadlines for the duration of the closure until further notice. Commerce, 14th Street and Constitution of the Federal Government from Avenue, NW., Washington, DC 20230; Notification to Importers February 5, through February 12, 2010. telephone: (202) 482–1174 and (202) This notice serves as a preliminary Thus, all deadlines in this segment of 482–5156, respectively. reminder to importers of their the proceeding have been extended by responsibility under 19 CFR 351.402(f) SUPPLEMENTARY INFORMATION: seven days. The revised deadline for the to file a certificate regarding the Background preliminary results of this review is now reimbursement of antidumping duties June 7, 2010. See Memorandum to the On July 24, 1996, the Department prior to liquidation of the relevant Record from Ronald Lorentzen, DAS for published a countervailing duty order entries during this review period. Import Administration, regarding on certain pasta (‘‘pasta’’ or ‘‘subject Failure to comply with this requirement ‘‘Tolling of Administrative Deadlines As merchandise’’) from Italy. See Notice of could result in the Secretary’s a Result of the Government Closure Countervailing Duty Order and presumption that reimbursement of During the Recent Snowstorm,’’ dated Amended Final Affirmative antidumping duties occurred and February 12, 2010. Countervailing Duty Determination: increase the subsequent assessment of Certain Pasta From Italy, 61 FR 38544 Period of Review the antidumping duties by the amount (July 24, 1996). On July 1, 2009, the of antidumping duties reimbursed. The POR for which we are measuring Department published a notice of These preliminary results of subsidies is January 1, 2008, through ‘‘Opportunity to Request Administrative administrative review are issued and December 31, 2008. Review’’ of this countervailing duty published in accordance with sections order for calendar year 2008, the period Scope of the Order 751(a)(1) and 777(i)(1) of the Act and 19 of review (‘‘POR’’). See Antidumping or Imports covered by the order are CFR 351.221(b)(4). Countervailing Duty Order, Finding, or shipments of certain non-egg dry pasta Dated: April 7, 2010. Suspended Investigation; Opportunity in packages of five pounds four ounces Ronald K. Lorentzen, To Request Administrative Review, 74 or less, whether or not enriched or Deputy Assistant Secretary for Import FR 31406 (July 1, 2009). On July 2, 2009, fortified or containing milk or other Administration. we received such a request from De optional ingredients such as chopped [FR Doc. 2010–8419 Filed 4–12–10; 8:45 am] Cecco Pastificio. On July 31, 2009, we vegetables, vegetable purees, milk, BILLING CODE 3510–DS–P received additional review requests gluten, diastasis, vitamins, coloring and from De Matteis Agroalimentare S.p.A. flavorings, and up to two percent egg (‘‘De Matteis’’); Agritalia S.r.L. white. The pasta covered by the scope DEPARTMENT OF COMMERCE (‘‘Agritalia’’); F. Divella S.p.A. of the order is typically sold in the retail (‘‘Divella’’); and Garofalo. In accordance market, in fiberboard or cardboard International Trade Administration with 19 CFR 351.221(c)(1)(i), we cartons, or polyethylene or [C–475–819] published a notice of initiation of this polypropylene bags of varying review on August 25, 2009. See dimensions. Certain Pasta From Italy: Preliminary Initiation of Antidumping and Excluded from the scope of the order Results of the 13th (2008) Countervailing Duty Administrative are refrigerated, frozen, or canned Countervailing Duty Administrative Reviews and Request for Revocation in pastas, as well as all forms of egg pasta, Review Part, 74 FR 42873 (August 25, 2009). with the exception of non-egg dry pasta On October 9, 2009, the Department containing up to two percent egg white. AGENCY: Import Administration, selected De Cecco Pastificio and Also excluded are imports of organic International Trade Administration, Garofalo as mandatory respondents. See pasta from Italy that are accompanied by Department of Commerce. Memorandum to Susan H. Kuhbach, the appropriate certificate issued by the SUMMARY: The Department of Commerce Senior Office Director, ‘‘Certain Pasta Instituto Mediterraneo Di Certificazione, (‘‘Department’’) is conducting an from Italy: Thirteenth Countervailing Bioagricoop S.r.l., QC&I International administrative review of the Duty Administrative Review— Services, Ecocert Italila, Consorzio per il countervailing duty order on certain Respondent Selection,’’ dated October 9, Controllo dei Prodotti Biologici, pasta from Italy for the period January 2009 which is on file in the Associazione Italiana per l’Agricoltura 1, 2008, through December 31, 2008. We Department’s Central Records Unit Biologica, or Codex S.r.l. In addition, preliminarily find that Pastificio Lucio (‘‘CRU’’) in Room 1117 of the main based on publicly available information, Garofalo S.p.A. (‘‘Garofalo’’) received Department building. the Department has determined that, as countervailable subsidies and that F.lli On November 10, 2009, we issued of August 4, 2004, imports of organic De Cecco di Filippo Fara San Martino countervailing duty questionnaires to pasta from Italy that are accompanied by
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the appropriate certificate issued by Fratelli Pagani S.p.A.’s importation of also De Cecco Pastificio’s February 25, Bioagricert S.r.l. are also excluded from pasta in bulk and subsequent 2010 supplemental questionnaire the order. See Memorandum from Eric repackaging in the United States into response (‘‘SQR’’) at 1. De Cecco B. Greynolds to Melissa G. Skinner, packages of five pounds or less Pastificio and De Cecco Pescara are dated August 4, 2004, which is on file constitutes circumvention with respect majority owned by members of the De in the Department’s CRU. In addition, to the antidumping and countervailing Cecco family, either directly or based on publicly available information, duty orders on pasta from Italy pursuant indirectly and hence, cross-owned the Department has determined that, as to section 781(a) of the Tariff Act of within the meaning of 19 CFR of March 13, 2003, imports of organic 1930, as amended (‘‘the Act’’), and 19 351.525(b)(6)(vi). See De Cecco pasta from Italy that are accompanied by CFR 351.225(b). See Certain Pasta From Pastificio’s March 26, 2010 SQR; see the appropriate certificate issued by Italy: Notice of Initiation of Anti- also Business Proprietary Instituto per la Certificazione Etica e Circumvention Inquiry on the Memorandum, ‘‘Information Concerning Ambientale are also excluded from the Antidumping and Countervailing Duty Respondents’ Attribution,’’ dated April order. See Memorandum from Audrey Orders, 65 FR 26179 (May 5, 2000). On 7, 2010 (‘‘Respondents’ Attribution Twyman to Susan Kuhbach, dated September 19, 2003, we published an Memo’’). Therefore, in accordance with ‘‘ February 28, 2006, entitled Recognition affirmative finding of the anti- 19 CFR 351.525(b)(6)(ii), we are of Instituto per la Certificazione Etica e circumvention inquiry. See Anti- attributing subsidies received by De Ambientale (ICEA) as a Public Authority Circumvention Inquiry of the Cecco Pastificio and De Cecco Pescara to for Certifying Organic Pasta from Italy’’ Antidumping and Countervailing Duty the combined sales of both, excluding which is on file in the Department’s Orders on Certain Pasta from Italy: inter-company sales. CRU. Affirmative Final Determinations of The merchandise subject to review is Circumvention of Antidumping and Effective January 1, 1999, Molino F.lli currently classifiable under items Countervailing Duty Orders, 68 FR De Cecco di Filippo S.p.A. (‘‘De Cecco 1901.90.90.95 and 1902.19.20 of the 54888 (September 19, 2003). Molino’’), another member of the De Harmonized Tariff Schedule of the Cecco group on whose behalf De Cecco United States (‘‘HTSUS’’). Although the Subsidies Valuation Information Pastificio responded in the fourth HTSUS subheadings are provided for Allocation Period administrative review, was merged with convenience and customs purposes, the De Cecco Pastificio and ceased to be a Pursuant to 19 CFR 351.524(b), written description of the merchandise separate entity. See Certain Pasta From benefits from non-recurring subsidies subject to the order is dispositive. Italy: Final Results of the Fourth are allocated over a period Countervailing Duty Administrative Scope Rulings corresponding to the average useful life Review, 66 FR 64214 (December 12, (‘‘AUL’’) of the renewable physical assets The Department has issued the 2001), and accompanying Issues and used to produce the subject following scope rulings to date: Decision Memorandum. The (1) On August 25, 1997, the merchandise. The Department’s Department will continue to consider Department issued a scope ruling regulations create a rebuttable countervailable any benefits received by finding that multicolored pasta, presumption that the AUL will be taken imported in kitchen display bottles of from the U.S. Internal Revenue Service’s De Cecco Molino in past administrative decorative glass that are sealed with Class Life Asset Depreciation Range review periods and allocated over a cork or paraffin and bound with raffia, System (‘‘IRS Tables’’). See 19 CFR period that extends into or beyond the is excluded from the scope of the 351.524(d)(2). For pasta, the most recent current POR as benefits attributable to antidumping and countervailing duty IRS Tables prescribe an AUL of 12 De Cecco Pastificio. orders. See Memorandum from Edward years. None of the responding Finally, De Cecco Pastificio has Easton to Richard Moreland, dated companies or other interested parties reported it purchased electricity from August 25, 1997, which is on file in the objected to this allocation period. C.E.I.D. that was produced by Centrale. CRU. Therefore, we have used a 12-year Centrale is majority owned by members (2) On July 30, 1998, the Department allocation period. of the De Cecco family. See De Cecco issued a scope ruling finding that Attribution of Subsidies Pastificio’s March 26, 2010 SQR. multipacks consisting of six one-pound C.E.I.D. is a consortium consisting of packages of pasta that are shrink- Pursuant to 19 CFR 351.525(b)(6), the Centrale and De Cecco Pastificio. wrapped into a single package are Department will attribute subsidies However, neither Centrale nor C.E.I.D. within the scope of the antidumping received by certain companies to the received any subsidies during the POR and countervailing duty orders. See combined sales of those companies. or AUL period. See De Cecco Pastificio’s Letter from Susan H. Kuhbach to In the instant review, De Cecco QR at 5. Therefore, we do not need to Barbara P. Sidari, dated July 30, 1998, Pastificio has responded on behalf of reach the issue of whether cross- which is on file in the CRU. itself and three other members of the De ownership exists or whether subsidies Cecco group of companies: De Cecco (3) On May 24, 1999, the Department to Centrale or C.E.I.D. would be Pescara, Centrale Elettrica F.lli De Cecco issued a final scope ruling finding that, attributable to the pasta sold by De S.r.L. (‘‘Centrale’’), and Consorzio effective October 26, 1998, pasta in Cecco Pastificio under 19 CFR packages weighing or labeled up to (and Elettrico Imprese De Cecco (‘‘C.E.I.D.’’). 351.525(b)(6). including) five pounds four ounces is See De Cecco Pastificio’s December 24, within the scope of the antidumping 2009 questionnaire response (‘‘De Cecco Garofalo has reported and we confirm and countervailing duty orders. See Pastificio’s QR’’) at 5. that Garofalo has no affiliates for which Memorandum from John Brinkmann to De Cecco Pastificio manufactures cross-ownership exists. See Garofalo’s Richard Moreland, dated May 24, 1999, pasta for sale in Italy, to third-country December 17, 2009 questionnaire which is on file in the CRU. markets, and to the United States. Id. at response at 2–3; see also Respondents’ (4) On April 27, 2000, the Department 6. De Cecco Pescara manufactures pasta Attribution Memo. Thus, we are self-initiated an anti-circumvention for sale to De Cecco Pastificio and to attributing any subsidies received by inquiry to determine whether Pastificio unaffiliated third parties in Italy. Id.; see Garofalo to Garofalo’s sales only.
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Benchmarks for Long-Term Loans and increased this rate by the mark-up and examine the issue of that program’s Discount Rates bank charges described above. countervailability in subsequent reviews Pursuant to 19 CFR 351.505(a), the For discount rates, no company for unless new information or evidence of Department will use the actual cost of which we need such rates took out any changed circumstances is submitted comparable borrowing by a company as loans in the years in which the GOI which warrants reconsideration.’’ Also, a loan benchmark, when available. agreed to provide the subsidies in this policy is reflected in the According to 19 CFR 351.505(a)(2), a question. Therefore, pursuant to 19 CFR Department’s standard questionnaire comparable commercial loan is defined 351.524(d)(3)(i)(B), we used the national used in countervailing duty as one that, when compared to the average cost of long-term, fixed-rate administrative reviews which states that government-provided loan in question, loans to allocate non-recurring benefits ‘‘absent new information or evidence of has similarities in the structure of the over time. changed circumstances, we do not intend to reexamine the loan (e.g., fixed interest rate v. variable Analysis of Programs interest rate), the maturity of the loan countervailability of programs (e.g., short-term v. long-term), and the I. Programs Preliminarily Determined To previously found to be ’’ 3 currency in which the loan is Be Countervailable countervailable. In this review, neither the GOI nor denominated. A. Industrial Development Grants Under respondent companies have provided Because no comparable commercial Law 64/86 loans were taken out by the respondents new information that would warrant Law 64/86 provided assistance to in the years in which the GOI agreed to reconsideration of our determination promote development in the that these grants are countervailable provide the subsidies, we used a Mezzogiorno (the south of Italy). Grants subsidies. national average interest rate for were awarded to companies In the Pasta Investigation, the comparable commercial loans, pursuant constructing new plants or expanding or Department treated the industrial to 19 CFR 351.505(a)(3)(ii). Consistent modernizing existing plants. Pasta development grants as non-recurring. with past practice in this proceeding, for companies were eligible for grants to No new information has been placed on years prior to 1995, we used the Bank expand existing plants but not to the record of this review that would of Italy reference rate adjusted upward establish new plants because the market cause us to depart from this treatment. to reflect the mark-up an Italian for pasta was deemed to be close to Therefore, we have followed the commercial bank would charge a saturated. Grants were made only after methodology described in 19 CFR corporate customer. See, e.g., Certain a private credit institution chosen by the 351.524(b), which directs us to allocate Pasta From Italy: Preliminary Results applicant made a positive assessment of over time those non-recurring grants and Partial Rescission of the Eighth the project. whose total authorized amount exceeds Countervailing Duty Administrative In 1992, the Italian Parliament 0.5 percent of the recipient’s sales in the Review, 70 FR 17971 (April 8, 2005), abrogated Law 64/86 and replaced it year of authorization. Where the total unchanged in final results, Certain with Law 488/92 (see section I.B., amount authorized is less than 0.5 Pasta from Italy: Final Results of the below). This decision became effective percent of the recipient’s sales in the Eighth Countervailing Duty in 1993. However, companies whose year of authorization, the benefit is Administrative Review, 70 FR 37084 projects had been approved prior to countervailed in full (‘‘expensed’’) in the (June 28, 2005). For benefits received in 1993 were authorized to continue year of receipt. We determine that grants 1995–2004, we used the Italian Bankers’ receiving grants under Law 64/86 after received by De Cecco Pastificio/De ‘‘ ’’ Association ( ABI ) prime interest rate 1993. De Cecco Pastificio/De Cecco Cecco Pescara and Garofalo under Law (as reported by the Bank of Italy), Pescara and Garofalo received grants 64/86 exceeded 0.5 percent of their sales increased by the average spread charged under Law 64/86 that conferred a in the year in which the grants were by banks on loans to commercial benefit during the POR. approved. customers plus an amount for bank In the Pasta Investigation,1 the We used the grant methodology charges. See Certain Pasta from Italy: Department determined that these described in 19 CFR 351.524(d) to Preliminary Results of the 12th (2007) grants confer a allocate the benefit from those grants. Countervailing Duty Administrative countervailable subsidy within the We divided the benefit of De Cecco Review, 74 FR 25489, 25491 (May 28, meaning of section 771(5) of the Act. Pastificio/De Cecco Pescara in the POR 2009) (‘‘12th (2007) Administrative They are a direct transfer of funds from by their combined total sales in the POR Review Preliminary Results’’), the GOI bestowing a benefit in the and divided the benefit of Garofalo in unchanged in final results, Certain amount of the grant. See Section the POR by its total sales in the POR. Pasta from Italy: Final Results of the 771(5)(D)(i) of the Act; see also 19 CFR On this basis, we preliminarily 12th (2007) Countervailing Duty 351.504(a). Also, these grants were determine the countervailable subsidy Administrative Review, 74 FR 47204 found to be regionally specific within from the Law 64/86 industrial (September 15, 2009). The Bank of Italy the meaning of section 771(5A)(D)(iv) of development grants to be 0.25 percent ceased reporting this rate in 2004. See the Act. ad valorem for De Cecco Pastificio/De 12th (2007) Administrative Review As stated in Live Swine from Canada,2 Cecco Pescara and 0.25 percent ad Preliminary Results, 74 FR at 25491. ‘‘it is well-established that where the valorem for Garofalo. See Memorandum Because the ABI prime rate was no Department has determined that a to the File, ‘‘2008 Preliminary Results longer reported after 2004, for 2005– program is * * * countervailable, it is Calculation Memorandum for F.lli De 2008, we have used the ‘‘Bank Interest the Department’s policy not to re- Cecco di Filippo Fara San Martino Rates on Euro Loans: Outstanding S.p.A./Molino e Pastificio De Cecco Amounts, Non-Financial Corporations, 1 Final Affirmative Countervailing Duty S.p.A.,’’ dated April 7, 2010 (‘‘De Cecco Loans With Original Maturity More Determination: Certain Pasta (‘‘Pasta’’) From Italy, Pastificio/De Cecco Pescara Preliminary Than Five Years’’ published by the Bank 61 FR 30288 (June 14, 1996) (‘‘Pasta Investigation’’). 2 Live Swine from Canada; Final Results of Calc Memo’’); Memorandum to the File, of Italy and provided by the GOI in its Countervailing Duty Administrative Reviews, 61 FR December 21, 2009, questionnaire 52408, 52420 (October 7, 1996) (‘‘Live Swine from 3 See Department’s November 10, 2009, letter to response at Exhibits 3–6. Id. We Canada’’). the Embassy of Italy, at enclosure.
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‘‘2008 Preliminary Results Calculation countervailable subsidies. See Live Under this modification to Law 488/ Memorandum for Pastificio Lucio Swine from Canada, 61 FR at 52420. 92, the loans must have a duration not Garofalo S.p.A.,’’ dated April 7, 2010 In the Second Administrative Review, exceeding 15 years and not less than six (‘‘Garofalo Calc Memo’’). the Department treated the industrial years. Id. The fixed-interest rates on development grants as non-recurring. these long-term loans were set at a rate B. Industrial Development Grants Under No new information has been placed on of 0.50 percent with the GOI covering Law 488/92 the record of this review that would the difference in interest amount cause us to depart from this treatment. In 1986, the EU initiated an between that rate and the market rate. Therefore, we have followed the investigation of the GOI’s regional Id. The modification to Law 488/92 methodology described in 19 CFR subsidy practices. As a result of this provides for maximum and minimum 351.524(b) which directs us to allocate investigation, the GOI changed the investment limits based upon the over time those non-recurring grants economic sector (i.e., industry, tourism, regions eligible for regional subsidies to whose total authorized amount exceeds include depressed areas in central and and trade). Id. 0.5 percent of the recipient’s sales in the We preliminarily determine that these northern Italy in addition to the year of authorization. Where the total interest contributions are Mezzogiorno. After this change, the amount authorized is less than 0.5 countervailable subsidies within the areas eligible for regional subsidies are percent of the recipient’s sales in the meaning of section 771(5) of the Act. the same as those classified as Objective year of authorization, the benefit is They are a direct transfer of funds from 1 (underdeveloped regions), Objective 2 expensed in the year of receipt. We the GOI providing a benefit in the (declining industrial regions), or determine that grants received by De amount of the difference between the Objective 5(b) (declining agricultural Cecco Pastificio/De Cecco Pescara and benchmark interest rate and the interest regions) areas by the EU. The new Garofalo under Law 488/92 exceeded rate paid by the companies. See Section policy was given legislative form in Law 0.5 percent of its sales in the year in 751(5)(E)(ii) of the Act. Also, these 488/92 under which Italian companies which the grants were approved. interest contributions are regionally in the eligible sectors (manufacturing, We used the grant methodology specific within the meaning of section mining, and certain business services) described in 19 CFR 351.524(d) to 771(5A)(D)(iv) of the Act because they may apply for industrial development allocate the benefits over time. We are limited to companies located within grants. divided the benefit received by De regions which meet the criteria of Law 488/92 grants are made only after Cecco Pastificio/De Cecco Pescara in the Objective 1, Objective 2, and Objective a preliminary examination by a bank POR by their combined total sales in the 5(b) areas determined by the EU. authorized by the Ministry of Industry. POR and divided the benefit received by In accordance with 19 CFR On the basis of the findings of this Garofalo in the POR by its total sales in 351.505(c)(2) and 351.508(c)(2), we preliminary examination, the Ministry the POR. calculated the benefit for the POR by of Industry ranks the companies On this basis, we preliminarily computing the difference between the determine the countervailable subsidy applying for grants. The ranking is amount of interest paid during the POR from the Law 488/92 industrial based on indicators such as the amount by De Cecco Pastificio/De Cecco Pescara development grants to be 0.18 percent of capital the company will contribute on their Law 488/92 loan and the ad valorem for De Cecco Pastificio/De from its own funds, the number of jobs amount of interest De Cecco Pastificio/ Cecco Pescara and 0.37 percent ad created, regional priorities, etc. Grants De Cecco Pescara would have paid at valorem for Garofalo. See De Cecco the benchmark interest rate. We divided are then made based on this ranking. De Pastificio/De Cecco Pescara Preliminary the benefit received by De Cecco Cecco Pastificio/De Cecco Pescara and Calc Memo and Garofalo Preliminary Pastificio/De Cecco Pescara in the POR Garofalo received grants under Law 488/ Calc Memo. 92 that conferred a benefit during the by their combined sales in the POR. POR. C. Interest Contributions Under Law On this basis, we preliminarily determine the countervailable subsidy In the Second Administrative 488/92 from the Law 488/92 interest Review,4 the Department determined In the second administrative review of contributions to be 0.01 percent ad that these grants confer a this order, the Department found that valorem for De Cecco Pastificio/De countervailable subsidy within the ‘‘loans are not provided under Law 488/ Cecco Pescara. See De Cecco Pastificio/ meaning of section 771(5) of the Act. 92.’’ Second Administrative Review, 64 De Cecco Pescara Preliminary Calc They are a direct transfer of funds from FR at 17620. However, the GOI provided Memo. the GOI bestowing a benefit in the documentation that a May 14, 2005 Law amount of the grant. See Section at Article 80 and implementing decree II. Programs Preliminarily Determined 771(5)(D)(i) of the Act; see also 19 CFR changed this practice to permit To Be Countervailable for Which There 351.504(a). Also, these grants were companies to obtain loans, in addition Is No Measurable Benefit found to be regionally specific within to grants, for initiatives in the areas A. Social Security Reductions and the meaning of section 771(5A)(D)(iv) of eligible for such assistance under Law Exemptions—Sgravi the Act. In the instant review, neither 488/92. See GOI’s March 11, 2010 the GOI nor the respondent companies second supplemental questionnaire Italian law allows companies, have provided new information which response. The preliminary examination particularly those located in the would warrant reconsideration of our of companies’ loan applications by an Mezzogiorno, to use a variety of determination that these grants are authorized bank, the ranking by the exemptions from and reductions of Ministry of Economic Development, and payroll contributions that employers 4 See Certain Pasta From Italy: Preliminary the award of loans based on the ranking make to the Italian social security Results of Countervailing Duty Administrative are similar to the process described for system for health care benefits, Review, 64 FR 17618, 17620 (April 12, 1999) Law 488/92 grants (see section I.B., pensions, etc. These social security (‘‘Second Administrative Review’’), unchanged in final results, Certain Pasta From Italy: Final Results above). Id. In addition, the bank is reductions and exemptions, also known of the Second Countervailing Duty Administrative responsible for assessing the company’s as sgravi benefits, are regulated by a Review, 64 FR 44489 (August 16, 1999). credit. Id. complex set of laws and regulations,
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and are sometimes linked to conditions located in the Mezzogiorno and M. Law 10/91 Grants to Fund Energy such as creating more jobs. We have companies located in the rest of Italy, in Conservation. found in past segments of this accordance with 19 CFR 351.509(a). N. Export Restitution Payments. proceeding that benefits under some of Additionally, the program is regionally O. Export Credits under Law 227/77. these laws (e.g., Law 1089) are available specific within the meaning of section P. Capital Grants under Law 675/77. only to companies located in the 771(5A)(D)(iv) of the Act because higher Q. Retraining Grants under Law 675/ Mezzogiorno and other disadvantaged levels of benefits are limited to 77. regions. See Pasta Investigation, 61 FR companies in the Mezzogiorno. R. Interest Contributions on Bank at 30293. Certain other laws (e.g., Laws In accordance with 19 CFR Loans under Law 675/77. 407/90) provide benefits to companies 351.524(c), and consistent with our S. Preferential Financing for Export all over Italy, but the level of benefits is methodology in the Pasta Investigation Promotion under Law 394/81. higher for companies in the and in subsequent administrative T. Urban Redevelopment under Law Mezzogiorno and other disadvantaged reviews, we have treated social security 181. regions than for companies in other reductions and exemptions as recurring U. Industrial Development Grants parts of the country. Id. at 30294. Still, benefits. To calculate the under Law 183/76. other laws provide benefits that are not countervailable subsidy for Garofalo, we V. Interest Subsidies under Law 598/ linked to any region. divided the difference during the POR 94. In the Pasta Investigation and between the savings for the respondent W. Duty-Free Import Rights. subsequent reviews, the Department company located in the Mezzogiorno X. European Social Fund Grants. determined that certain types of social and the savings a company located in Y. Law 113/86 Training Grants. security reductions and exemptions the rest of Italy would have received. Z. European Agricultural Guidance confer countervailable subsidies within This amount was divided by Garofalo’s and Guarantee Fund. the meaning of section 771(5) of the Act. total sales in the POR. AA. Law 341/95 Interest They represent revenue foregone by the On this basis, we preliminarily Contributions on Debt Consolidation GOI bestowing a benefit in the amount determine the countervailable subsidy Loans (Formerly Debt Consolidation of the savings received by the from Law 407/90 to be 0.00 percent ad Law 341/95). companies. See Section 771(5)(D)(ii) of valorem for Garofalo. See Garofalo BB. Interest Grants Financed by IRI the Act. Also, they were found to be Preliminary Calc Memo. Bonds. regionally specific within the meaning CC. Article 44 of Law 448/01. of section 771(5A)(D)(iv) of the Act III. Programs Preliminarily Determined DD. Law 289/02. because they were limited to companies To Not Be Used (1) Article 62—Investments in in the Mezzogiorno or because the We examined the following programs Disadvantaged Areas. higher levels of benefits were limited to and preliminarily determine that the (2) Article 63—Increase in companies in the Mezzogiorno. producers and/or exporters of the Employment. In the instant review, no party in this subject merchandise under review did EE. Law 662/96—Patti Territoriali. proceeding challenged our past not apply for or receive benefits under FF. Law 662/96—Contratto di determinations in the Pasta these programs during the POR: Programma. Investigation and subsequent reviews A. Industrial Development Loans IV. Preliminarily Terminated Programs that sgravi benefits, generally, were under Law 64/86. countervailable for companies located B. Grant Received Pursuant to the A. Social Security Reductions and within the Mezzogiorno. See Live Swine Community Initiative Concerning the Exemptions—Sgravi from Canada, 61 FR at 52420. Sgravi Preparation of Enterprises for the Single (1) Law 196/97 benefits were provided during the POR Market (‘‘PRISMA’’). under Law 407/90. C. European Regional Development Law 196/97 provides exemptions, for an additional 12-month period, for (1) Law 407/90 Fund (‘‘ERDF’’) Programma Operativo Plurifondo (‘‘P.O.P.’’) Grant. employers in the Mezzogiorno that hire Law 407/90 grants an exemption from D. European Regional Development employees under ‘‘skilling’’ contracts on social security taxes for three years Fund (‘‘ERDF’’) Programma Operativo a long-term (or permanent) basis. See when a company hires a worker who (1) Multiregionale (‘‘P.O.M.’’) Grant. 12th (2007) Administrative Review has received wage supplementation for E. Certain Social Security Reductions Preliminary Results, 74 FR at 25492. a period of at least two years, or (2) has and Exemptions—Sgravi (including Law Skilling contracts, as provided for under been previously unemployed for a 223/91, Article 8, Paragraph 4 and Law 863/84, occur when a company period of two years. A 100-percent Article 25, Paragraph 9; and Law 196/ hires a worker under a non-renewable exemption is allowed for companies in 97). contract with a term of 24 months or the Mezzogiorno, while companies F. Law 236/93 Training Grants. less and the contract includes an located in the rest of Italy receive a 50- G. Law 1329/65 Interest Contributions educational or training component. Id. percent reduction. (‘‘Sabatini Law’’) (Formerly Lump-Sum In the preliminary results of the 2007 In the Pasta Investigation, we Interest Payment under the Sabatini administrative review, we determined determined Law 407/90 confers a Law for Companies in Southern Italy). that the last possible date to request countervailable subsidy within the H. Development Grants under Law 30 exemptions under Law 196/97 was meaning of section 771(5) of the Act. of 1984. October 31, 2006. Id. at 25493. See Pasta Investigation, 61 FR at 30294. I. Law 908/55 Fondo di Rotazione Moreover, because the exemption The reduction or exemption of taxes is Iniziative Economiche (Revolving Fund granted under Law 196/97 only lasts for revenue foregone that is otherwise due for Economic Initiatives) Loans. 12 months, benefits were set to expire and is, therefore, a financial J. Law 317/91 Benefits for Innovative by October 31, 2007. Id. Because contribution within the meaning of Investments. benefits expired during the 2007 POR, section 771(5)(D)(ii) of the Act. The K. Brescia Chamber of Commerce we preliminarily determined in the benefit is the difference in the amount Training Grants. 2007 administrative review that Law of the tax savings between companies L. Ministerial Decree 87/02. 196/97 was terminated during that POR
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and there would be no subsidy benefits neither de minimis nor based entirely order, and Pasta Lensi S.r.l. which was from this program after the 2007 POR. on AFA. revoked from the order), we will Id. Further, there was no indication of For the period January 1, 2008, instruct CBP to collect cash deposits of any substitute or replacement program. through December 31, 2008, we estimated countervailing duties at the Id. preliminarily find the net subsidy rate most recent company-specific or all- There are no facts on the record in the for the producers/exporters under others rate applicable to the company. instant review that warrant review to be that specified in the chart These rates shall apply to all non- reconsideration of our prior finding below: reviewed companies until a review of a from the preliminary results of the 2007 Net subsidy company assigned these rates is administrative review that any benefits requested. These cash deposit previously available under Law 196/97 Producer/Exporter rate (percent) requirements, when imposed, shall terminated as of October 31, 2007. Thus, remain in effect until further notice. we preliminarily determine that Law F.lli De Cecco di Filippo Fara 0.44 196/97 has been terminated. San Martino S.p.A./Molino e (de minimis) Public Comment Pastificio De Cecco S.p.A. V. Previously Terminated Programs Pastificio Lucio Garofalo S.p.A 0.62 Pursuant to 19 CFR 351.224(b), the A. Regional Tax Exemptions under De Matteis Agroalimentare 0.62 Department will disclose to parties to IRAP. S.p.A. the proceeding any calculations B. VAT Reductions under Laws 64/86 Agritalia S.r.L ...... 0.62 F. Divella S.p.A ...... 0.62 performed in connection with these and 675/55. All-Others Rate ...... 3.85 preliminary results within five days C. Corporate Income Tax (‘‘IRPEG’’). after the date of the public D. Remission of Taxes on Export Assessment Rates announcement of this notice. Credit Insurance under Article 33 of Law 227/77. If these preliminary results are Pursuant to 19 CFR 351.309(c)(ii), E. Export Marketing Grants under Law adopted in our final results of this interested parties may submit written 304/90. review, because the countervailing duty arguments in case briefs within 30 days F. Tremonti Law 383/01. rate for De Cecco Pastificio/De Cecco of the date of publication of this notice. G. Social Security Reductions and Pescara is less than 0.5 percent and, Rebuttal briefs, limited to issues raised Exemptions—Sgravi. thus, de minimis, the Department will in case briefs, may be filed no later than (1) Article 44 of Law 448/01. instruct U.S. Customs and Border five days after the date of filing the case (2) Law 337/90. Protection (‘‘CBP’’) to liquidate briefs, in accordance with 19 CFR (3) Law 863/84. shipments of certain pasta by De Cecco 351.309(d). Parties who submit case Preliminary Results of Review Pastificio/De Cecco Pescara from briefs or rebuttal briefs in this January 1, 2008, through December 31, proceeding are requested to submit with In accordance with 19 CFR 2008, without regard to countervailing each argument: (1) A statement of the 351.221(b)(4)(i), we calculated duties. For all entries by Garofalo, De issue, and (2) a brief summary of the individual subsidy rates for the Matteis, Agritalia, and Divella, we will mandatory respondents, De Cecco argument with an electronic version instruct CBP to assess countervailing included. Copies of case briefs and Pastificio/De Cecco Pescara and duties on all shipments at the net Garofalo. rebuttal briefs must be served on subsidy rates listed above. interested parties in accordance with 19 For the non-selected respondents, we For all other companies that were not CFR 351.303(f). have followed the Department’s policy reviewed (except Barilla G. e R. F.lli for antidumping duty and S.p.A., and Gruppo Agricoltura Sana Interested parties may request a countervailing duty investigations, and S.r.l., which are excluded from the hearing within 30 days after the date of antidumping duty administrative order, and Pasta Lensi S.r.l. which was publication of this notice, pursuant to reviews which is to base the margin on revoked from the order), the Department 19 CFR 351.310(c). Any hearing, if an average of the margins calculated for has directed CBP to assess requested, will be held 42 days after the those companies selected for individual countervailing duties on all entries publication of this notice, or the first review, excluding de minimis rates or between January 1, 2008, and December workday thereafter. rates based entirely on adverse facts 31, 2008, at the rates in effect at the time The Department will publish a notice available (‘‘AFA’’). See Notice of Final of entry. of the final results of this administrative Determination of Sales at Less Than The Department intends to issue Fair Value: Light-Walled Rectangular appropriate assessment instructions review within 120 days from the Pipe and Tube from Mexico, 73 FR directly to CBP 15 days after publication publication of these preliminary results, 35649, 35651 (June 24, 2008); see also of the final results of this review. in accordance with section 751(a)(3) of Certain Frozen Warmwater Shrimp the Act. Cash Deposit Instructions From India: Final Results and Partial We are issuing and publishing these Rescission of Antidumping Duty The Department also intends to results in accordance with sections Administrative Review, 73 FR 40492, instruct CBP to collect cash deposits of 751(a)(1) and 777(i)(1) of the Act and 19 40495–98 (July 15, 2008), and estimated countervailing duties in the CFR 351.221(b)(4). Lightweight Thermal Paper From the amounts shown above with the People’s Republic of China: Final exception of De Cecco Pastificio/De Dated: April 7, 2010. Affirmative Countervailing Duty Cecco Pescara. For De Cecco Pastificio/ Ronald K. Lorentzen, Determination, 73 FR 57323, 57325–26 De Cecco Pescara, no cash deposits of Deputy Assistant Secretary for Import (October 2, 2008). Therefore, we estimated duties will be required Administration. preliminarily determine to assign to the because their rate is de minimis. For all [FR Doc. 2010–8410 Filed 4–12–10; 8:45 am] non-selected respondents in this review non-reviewed firms (except Barilla G. e BILLING CODE 3510–DS–P the rate calculated for Garofalo, which R. F.lli S.p.A. and Gruppo Agricoltura is the only rate in this review that is Sana S.r.l., which are excluded from the
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DEPARTMENT OF COMMERCE On March 2, 2008, the Department July 24, 2009, we granted the published a notice of opportunity to petitioner’s extension request. International Trade Administration request an administrative review of the On July 6, 2009, Max Fortune [A–570–894] antidumping duty order on certain submitted its response to sections C and tissue paper products from the PRC. See D 5 of the antidumping duty Certain Tissue Paper Products From Antidumping or Countervailing Duty questionnaire. the People’s Republic of China: Order, Finding, or Suspended On July 16, 2009, we requested that Preliminary Results of the 2008–2009 Investigation; Opportunity To Request the Import Administration’s Office of Administrative Review Administrative Review, 74 FR 9077 Policy (the Office of Policy) issue a (March 2, 2009). surrogate-country memorandum for the AGENCY: Import Administration, On March 31, 2008, the Department selection of the appropriate surrogate International Trade Administration, received a timely request from SPA for country in this review,6 and the Office Department of Commerce. an administrative review of this of Policy provided us with a list of six SUMMARY: The Department of Commerce antidumping duty order with respect to countries at a level of economic (the Department) is currently its exports of subject merchandise to the development comparable to that of the conducting the 2008–2009 United States, in accordance with 19 PRC.7 administrative review of the CFR 351.213. On March 31, 2008, the On July 17, 2009, the Department antidumping duty order on certain Department also received a timely invited interested parties participating tissue paper products from the People’s request from the petitioner 2 for an in this review to submit comments on Republic of China (PRC). We administrative review of this order with surrogate-country selection and to preliminarily determine that sales have respect to Max Fortune and Sunlake submit publicly-available information as been made below normal value (NV) De´cor Co., Ltd. (Sunlake). surrogate values (SVs) for purposes of with respect to Max Fortune Industrial On April 27, 2008, the Department calculating NV.8 Limited and Max Fortune (FZ) Paper published in the Federal Register a On July 20, 2009, SPA submitted its Products Co., Ltd. (Max Fortune notice of initiation of the administrative response to section D of the Fuzhou) 1 (collectively, Max Fortune) review of the antidumping duty order antidumping duty questionnaire. but not with respect to Seaman Paper on certain tissue paper products from The Department issued a sections A Asia Company, Ltd. (SPA). the PRC for the three individually and C supplemental questionnaire to If these preliminary results are named firms above covering the period SPA on July 10, 2009, and received adopted in our final results of this March 1, 2008, through February 28, SPA’s supplemental questionnaire review, we will instruct U.S. Customs 2009. See Initiation of Antidumping and response on July 24, 2009. and Border Protection (CBP) to assess Countervailing Duty Administrative The Department issued a section D antidumping duties on all appropriate Reviews and Request for Revocation in supplemental questionnaire to SPA on entries of subject merchandise made Part, 74 FR 19042 (April 27, 2009) July 29, 2009, and received SPA’s during the period of review (POR). (Initiation Notice). supplemental questionnaire response on Interested parties are invited to On April 29, 2009, we issued Max August 14, 2009. comment on these preliminary results. Fortune and SPA the antidumping duty The Department issued a section A We will issue the final results no later questionnaire. supplemental questionnaire to Max than 120 days from the date of On June 30, 2009, the petitioner Fortune on July 29, 2009, and received publication of this notice. withdrew its request for an Max Fortune’s supplemental DATES: Effective Date: April 13, 2010. administrative review with respect to questionnaire response on August 11, FOR FURTHER INFORMATION CONTACT: Sunlake. See petitioner’s July 30, 2009, 2009. Brian Smith or Gemal Brangman, AD/ letter to the Department. Also, on June The Department issued sections C and CVD Operations, Office 2, Import 30, 2009, the Department requested D supplemental questionnaires to Max Administration, International Trade entry documentation from CBP. See Fortune on August 7 and 17, 2009, and Administration, U.S. Department of Memorandum from James P. Maeder, Jr., received Max Fortune’s supplemental Commerce, 14th Street and Constitution Office Director, to CBP, dated June 30, questionnaire responses on August 26 Avenue, NW., Washington, DC 20230; 2009. and September 21, 2009, respectively. During June 2009, SPA submitted its telephone: (202) 482–1766 or (202) 482– On August 24, 2009, the Department responses to sections A and C of the 3773, respectively. 3 placed on the record the CBP data it antidumping duty questionnaire and requested from CBP on June 30, 2009. Case History Max Fortune submitted its response to See Memorandum from Gemal On March 30, 2005, the Department section A of the antidumping duty 4 published in the Federal Register the questionnaire. 5 Section D of the questionnaire covers factors of antidumping duty order on certain On July 1, 2009, the petitioner production (FOP). tissue paper products from the PRC. See requested a 30-day extension until 6 See the Department’s memorandum entitled, Notice of Amended Final Determination September 17, 2009, to submit new ‘‘Request for Surrogate Country Selection,’’ dated factual information in this review in July 16, 2009. of Sales at Less Than Fair Value and 7 accordance with 19 CFR 351.302. On See the Department’s memorandum entitled, Antidumping Duty Order: Certain ‘‘Request for a List of Surrogate Countries for an Tissue Paper Products From the Administrative Review of the Antidumping Duty 2 People’s Republic of China, 70 FR 16223 The petitioner is the Seaman Paper Company of Order on Certain Tissue Paper Products From the Massachusetts, Inc. People’s Republic of China,’’ dated July 16, 2009 (March 30, 2005) (Tissue Paper Order). 3 Section A of the questionnaire covers general (Policy Memorandum). information about the company and section C 8 See the Department’s letter regarding, ‘‘2008– 1 Max Fortune Fuzhou’s former name is Max covers U.S. sales. 2009 Administrative Review of Certain Tissue Fortune (FETDE) Paper Products Co., Ltd. (Max 4 See SPA’s June 10, 2009, response to section A Paper Products from the People’s Republic of Fortune FETDE). Max Fortune FETDE changed its of the Department’s antidumping questionnaire and China,’’ requesting parties to provide comments on name to Max Fortune Fuzhou on October 31, 2008. June 23, 2009, response to section C of the surrogate-country selection and surrogate FOP See Exhibit 2 of Max Fortune’s August 11, 2009, Department’s antidumping questionnaire; and Max values from the potential surrogate countries (i.e., section A supplemental response (August 11 Fortune’s June 8, 2009, response to section A of the India, Philippines, Indonesia, Colombia, Thailand Response). Department’s antidumping questionnaire. and Peru).
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Brangman, Analyst, to The File, dated submission. The petitioner submitted its company’s data included in the August 24, 2009. response to this questionnaire in petitioner’s September 15, 2009, On August 25, 2009, the petitioner November and December 2009.10 submission.13 These verification reports submitted surrogate-country comments On November 11, 2009, the are on file and available in the Central in this administrative review. Department postponed the preliminary Records Unit (CRU), Room 1117 of the On September 10, 2009, the petitioner results of this review until March 31, Department’s main building. requested a 35-day extension until 2010. See Certain Tissue Paper Products Period of Review October 23, 2009, to submit publicly- From the People’s Republic of China: available information (PAI) in this Extension of Time Limit for Preliminary The POR is March 1, 2008, through review. We granted the petitioner’s Results of 2008–2009 Administrative February 28, 2009. extension request on September 15, Review, 74 FR 59132 (November 17, Scope of the Order 2009. 2009). On September 15, 2009, the petitioner On November 24, 2009, the The tissue paper products covered by placed on the record of this review a Department sent Max Fortune a this order are cut-to-length sheets of substantial amount of information questionnaire seeking clarification and tissue paper having a basis weight not supporting its allegations that, among additional information and exceeding 29 grams per square meter. other things, that Max Fortune did not documentation with respect to Max Tissue paper products subject to this report: (1) Multiple affiliates involved in Fortune’s October 19, 2009, submission. order may or may not be bleached, dye- the production and/or sale of the subject Max Fortune submitted its response to colored, surface-colored, glazed, surface merchandise exported to the United this questionnaire on December 11, decorated or printed, sequined, States during the POR; and (2) multiple 2009. crinkled, embossed, and/or die cut. The unaffiliated suppliers of raw materials On December 2, 2009, the Department tissue paper subject to this order is in and converting services involved in the placed on the record the additional CBP the form of cut-to-length sheets of tissue production of the subject merchandise data it requested from CBP on October paper with a width equal to or greater exported to the United States during the 29, 2009. See Memorandum from Brian than one-half (0.5) inch. Subject tissue POR. The petitioner obtained the Smith, Senior Analyst, to The File, paper may be flat or folded, and may be information supporting its allegations dated December 2, 2009. packaged by banding or wrapping with from a foreign market researcher (FMR). On December 16, 2009, the paper or film, by placing in plastic or On October 14, 2009, the Department Department conducted an interview by film bags, and/or by placing in boxes for rescinded this review with respect to telephone with the FMR in order to distribution and use by the ultimate Sunlake. See Certain Tissue Paper confirm the FMR’s credentials, and the consumer. Packages of tissue paper Products from the People’s Republic of procedures conducted to obtain the subject to this order may consist solely China: Notice of Partial Rescission of information, on which the petitioner’s of tissue paper of one color and/or style, Antidumping Duty Administrative September 15, 2009, allegations were or may contain multiple colors and/or based.11 Review, 74 FR 54030 (October 21, 2009). styles. On December 31, 2010, the On October 19, 2009, Max Fortune The merchandise subject to this order Department issued verification outlines filed a submission in which it denied does not have specific classification to Max Fortune, SPA, and another the petitioner’s September 15, 2009, numbers assigned to them under the company whose information was allegations. Harmonized Tariff Schedule of the included in the petitioner’s September On October 23, 2009, the petitioner United States (HTSUS). Subject 15, 2009, submission. submitted PAI in this administrative merchandise may be under one or more SPA submitted pre-verification of several different subheadings, review. corrections related to its questionnaire On October 26, 2009, the Department including: 4802.30, 4802.54, 4802.61, responses on January 7, 2010. 4802.62, 4802.69, 4804.31.1000, met with the petitioner’s counsel in Pursuant to section 782(i) of the Tariff order to get clarification of the 4804.31.2000, 4804.31.4020, Act of 1930, as amended (the Act), the 4804.31.4040, 4804.31.6000, 4804.39, information on which the petitioner Department conducted verification of based its September 15, 2009, 4805.91.1090, 4805.91.5000, the questionnaire responses submitted 4805.91.7000, 4806.40, 4808.30, allegations and the petitioner’s analysis by Max Fortune and SPA in January 9 4808.90, 4811.90, 4823.90, 4802.50.00, of that information. 12 2010. Furthermore, the Department 4802.90.00, 4805.91.90, 9505.90.40. The The Department issued additional conducted a verification of another supplemental questionnaires to SPA on tariff classifications are provided for convenience and customs purposes; October 29 and November 13, 2009, and 10 See the petitioner’s submissions dated received SPA’s supplemental November 23 and December 22, 2009. however, the written description of the 14 questionnaire responses on November 11 See Memorandum to The File from Gemal scope of this order is dispositive. 13 and 18, 2009, respectively. Brangman, Analyst, entitled ‘‘Telephone 13 On October 29, 2009, the Department Conversation with Foreign Market Researcher,’’ See Memorandum to The File from Case dated January 5, 2010. Analysts entitled ‘‘Verification of the Data requested additional entry 12 See Memorandum to The File from Case Submitted by {Anonymous Company} in the documentation from CBP. See Analysts entitled ‘‘Verification of the Sales and Antidumping Duty Administrative Review of Memorandum from James P. Maeder, Jr., Factors Questionnaire Responses of Max Fortune Certain Tissue Paper Products from the People’s Office Director, to CBP, dated October (FZ) Paper Products Co., Ltd. and Max Fortune Republic of China,’’ dated April 7, 2010. This Industrial Limited in the Antidumping Duty company’s legal counsel has requested business 29, 2009. Administrative Review of Certain Tissue Paper proprietary treatment of the company’s name On November 9, 2009, the Department Products from the People’s Republic of China,’’ pursuant to 19 CFR 351.105(c)(9), and under the issued to the petitioner a questionnaire dated April 7, 2010 (Max Fortune Verification circumstances presented in this case, we have seeking clarification of the information Report); and Memorandum to The File from Case agreed to this request. See letter dated January 7, Analysts entitled ‘‘Verification of the Sales and 2010. contained in its September 15, 2009, Factors Questionnaire Responses of Seaman Paper 14 On January 30, 2007, at the direction of CBP, Asia Company Ltd. in the Antidumping Duty the Department added the following HTSUS 9 See Memorandum to The File from Brian Smith, Administrative Review of Certain Tissue Paper classifications to the AD/CVD module for tissue Senior Analyst, entitled ‘‘Meeting with Counsel for Products from the People’s Republic of China,’’ paper: 4802.54.3100, 4802.54.6100, and the Petitioner,’’ dated October 28, 2009. dated April 7, 2010 (SPA Verification Report). Continued
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Excluded from the scope of this order under the antidumping statute; or (D) POR. In its submissions to the are the following tissue paper products: provides such information but the Department, including its October 19, (1) Tissue paper products that are information cannot be verified, the 2009, submission rebutting the coated in wax, paraffin, or polymers, of Department shall, subject to subsection allegations made by the petitioner, Max a kind used in floral and food service 782(d) of the Act, use facts otherwise Fortune asserted that its PRC affiliate, applications; (2) tissue paper products available in reaching the applicable Max Fortune Fuzhou, produced all of that have been perforated, embossed, or determination. the tissue paper it reported it sold to the die-cut to the shape of a toilet seat, i.e., Furthermore, section 776(b) of the Act United States during the POR. After disposable sanitary covers for toilet states that if the Department ‘‘finds that conducting verification of the data seats; (3) toilet or facial tissue stock, an interested party has failed to submitted on the record, we found that towel or napkin stock, paper of a kind cooperate by not acting to the best of its for certain U.S. sales reported by Max used for household or sanitary ability to comply with a request for Fortune in its U.S. sales listing which purposes, cellulose wadding, and webs information from the administering we selected for examination at of cellulose fibers (HTSUS authority * * *, the administering verification, Max Fortune Fuzhou was 4803.00.20.00 and 4803.00.40.00). authority * * *, in reaching the not the only producer of the tissue applicable determination under this Separate Rates paper sold in those transactions, title, may use an inference that is contrary to Max Fortune’s In proceedings involving non-market adverse to the interests of that party in representations throughout this review. economy (NME) countries, the selecting from among the facts See Memorandum from John M. Department begins with a rebuttable otherwise available.’’ See also Statement Andersen, Acting Deputy Assistant presumption that all companies within of Administrative Action accompanying Secretary for AD/CVD Operations, to the country are subject to government the Uruguay Round Agreements Act, H. Ronald K. Lorentzen, Deputy Assistant control, and thus, should be assigned a Rep. No. 103–316 at 870 (1994) (SAA). Secretary for Import Administration, single antidumping duty deposit rate It is the Department’s practice to make entitled ‘‘Whether To Assign Max unless an exporter can affirmatively an adverse inference ‘‘to ensure that the Fortune Industrial Limited (Max demonstrate an absence of government party does not obtain a more favorable Fortune HK) and Max Fortune (FZ) control, both in law (de jure) and in fact result by failing to cooperate than if it Paper Products Co., Ltd. (Max Fortune (de facto), with respect to its export had cooperated fully.’’ Id. An adverse Fuzhou) (collectively Max Fortune) a activities. See Final Determination of inference may include reliance on Margin Based on Adverse Facts Sales at Less Than Fair Value: Sparklers information derived from the petition, Available in the Preliminary Results,’’ from the People’s Republic of China, 56 the final determination in the dated April 7, 2010, for a full discussion FR 20588, 20589 (May 6, 1991). In this investigation, any previous review, or of the Department’s findings with review, in support of its claim for a any other information placed on the respect to Max Fortune. separate rate, Max Fortune and SPA record. See section 776(b) of the Act. In cases involving NME countries, Accordingly, our verification findings each reported that it is a wholly foreign- demonstrate that Max Fortune withheld owned company registered and located such as the instant one, the respondent 15 must supply the Department with critical information (i.e., the identities in Hong Kong. Our verification of additional tissue paper suppliers findings corroborated Max Fortune’s complete and accurate U.S. sales and factors of production (FOP) data in associated with the tissue paper it sold and SPA’s separate-rate claims. See Max to the United States during the POR, Fortune Verification Report at page 7, order for the Department to accurately calculate the respondent’s dumping and their respective FOP data), and in and SPA Verification Report at page 4. so doing, significantly impeded this Consequently, no additional separate- margin. Where one, or both, of these data sets is so incomplete that it cannot proceeding and precluded the rate analysis is necessary for Max Department from being able to calculate Fortune or SPA. See Notice of Final serve as a reliable basis for reaching the applicable determination, the an accurate antidumping margin for Determination of Sales at Less than Fair Max Fortune in this review based on its Value: Bicycles From the People’s Department may decline to consider a respondent’s information in its entirety, reported data. Further, based upon our Republic of China, 61 FR 19026 (April verification of the companies, our 30, 1996). and apply adverse facts available under section 776(b) of the Act. See, e.g., Steel experience in conducting such Application of Adverse Facts Available Authority of India, Ltd. v. United States, verifications, and our careful analysis of For the reasons outlined below, we 149 F. Supp. 2d 921, 928 (CIT 2001). the record, we do not believe that the have preliminarily applied adverse facts Based on our verification findings and documentation supplied by Max available (AFA) to Max Fortune. Section analysis of the record information, as Fortune can be the actual documents 776(a)(2) of the Act, provides that, if an summarized below, we find that we used in the transactions at issue. interested party: (A) Withholds cannot rely upon the data submitted by Therefore, the Department cannot state information that has been requested by Max Fortune to calculate an accurate with confidence that it was able to the Department; (B) fails to provide such dumping margin. Consequently, we find verify any of Max Fortune’s FOP data. information in a timely manner or in the it appropriate to base Max Fortune’s Given the nature and extent of the form or manner requested subject to preliminary dumping margin on AFA. information in Max Fortune’s sections 782(c)(1) and (e) of the Act; (C) In this administrative review, the possession which Max Fortune significantly impedes a proceeding petitioner provided substantial withheld from disclosure (i.e., the actual information in its September 15, 2009, documentation associated with its U.S. 4823.90.6700. However, we note that the six-digit submission as the basis for alleging, sales transactions), we preliminarily classifications for these numbers were already listed among other things, that Max Fortune find that it failed to cooperate by not in the scope. did not report multiple unaffiliated acting to the best of its ability to comply 15 See SPA’s June 10, 2009, response to section A suppliers of raw materials and with the Department’s request for of the Department’s antidumping questionnaire at page A–2; and Max Fortune’s June 8, 2009, response converting services involved in the information in this review. to section A of the Department’s antidumping production of the subject merchandise Consequently, pursuant to sections questionnaire at page 2. exported to the United States during the 776(a)(2) and (b) of the Act, we find it
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appropriate to apply total AFA to Max does not obtain a more favorable result highest rate from the petition in the Fortune for the preliminary results of by failing to cooperate than if it had LTFV investigation segment of this this review. See Shanghai Taoen, cooperated fully.’’ See SAA at 870; see proceeding. See Tissue Paper Order. International Trading Company v. also Final Determination of Sales at The Department corroborated the United States, 360 F.Supp. 2d. 1339, Less than Fair Value: Certain Frozen information used to calculate the 112.64 1344 (CIT 2005) (finding that the and Canned Warmwater Shrimp from percent rate in the LTFV investigation. application of total AFA was warranted Brazil, 69 FR 76910 (December 23, See Notice of Final Determination of in light of evidence on the record that 2004), and accompanying Issues and Sales at Less Than Fair Value: Certain the respondent ‘‘purposely withheld’’ Decision Memorandum at Comment 22. Tissue Paper Products from the People’s and provided misleading information to In choosing the appropriate balance Republic of China, 70 FR 7475 avoid a higher dumping margin). between providing respondents with an (February 14, 2005). Furthermore, the incentive to respond accurately and Selection of Adverse Facts Available AFA rate we are applying for the current imposing a rate that is reasonably Rate review was applied in reviews related to the respondent’s prior subsequent to the LTFV investigation, As discussed above, section 776(b) of commercial activity, selecting the and no information has been presented the Act authorizes the Department to highest prior margin ‘‘reflects a common in the current review that calls into use as AFA, information derived from sense inference that the highest prior question the reliability of this the petition, the final determination in margin is the most probative evidence of information. See Certain Tissue Paper the less-than-fair-value (LTFV) current margins, because, if it were not from the People’s Republic of China: investigation, any previous so, the importer, knowing of the rule, Preliminary Results and Preliminary administrative review, or any would have produced current Rescission of the 2007–2008 information placed on the record. In information showing the margin to be Administrative Review and Intent Not to selecting an AFA rate in reviews, the less.’’ Rhone Poulenc, 899 F.2d at 1190. Revoke Order in Part, 74 FR 15449 Department’s practice has been to assign Consistent with the statute, court (April 6, 2009) (unchanged in Certain the highest margin on the record of any precedent, and numerous other cases,16 Tissue Paper Products from the People’s segment of the proceeding. See, e.g., as AFA, we are assigning Max Fortune Republic of China: Final Results and Freshwater Crawfish Tail Meat from the the highest rate on the record of any Partial Rescission of the 2007–2008 People’s Republic of China: Notice of segment of this proceeding, i.e., 112.64 Antidumping Duty Administrative Final Results of Antidumping Duty percent. As discussed further below, Review and Determination Not to Administrative Review, 68 FR 19504 this rate has been corroborated. Revoke in Part, 74 FR 52176, 52177 (April 21, 2003). The Court of (October 9, 2009) (PRC Tissue Paper— International Trade (CIT) and the Corroboration of Secondary 3rd AR). Thus, the Department finds Federal Circuit have consistently Information Used as AFA that the information is reliable. upheld the Department’s practice in this Section 776(c) of the Act provides that regard. See Rhone Poulenc, Inc. v. when the Department selects from With respect to the relevance aspect United States, 899 F.2d 1185, 1190 (Fed. among the facts otherwise available and of corroboration, the Department will Cir. 1990) (Rhone Poulenc); NSK Ltd. v. relies on ‘‘secondary information,’’ the consider information reasonably at its United States, 346 F. Supp. 2d 1312, Department shall, to the extent disposal to determine whether a margin 1335 (CIT 2004) (upholding a 73.55 practicable, corroborate that information continues to have relevance. Where percent total AFA rate, the highest from independent sources reasonably at circumstances indicate that the selected available dumping margin from a the Department’s disposal. To margin is not appropriate as AFA, the different respondent in a LTFV corroborate the information, the Department will disregard the margin investigation); see also Kompass Food Department seeks to determine that the and determine an appropriate margin. Trading Int’l v. United States, 24 CIT information used has probative value. See Fresh Cut Flowers from Mexico: 678, 689 (July 31, 2000) (upholding a See SAA at 870. The Department has Final Results of Antidumping Duty 51.16 percent total AFA rate, the highest determined that to have probative value, Administrative Review, 61 FR 6812, available dumping margin from a information must be reliable and 6814 (February 22, 1996) (where the different, fully cooperative respondent); relevant. See Certain Tissue Paper Department disregarded the highest and Shanghai Taoen International Products from the People’s Republic of margin in that case as adverse best Trading Co., Ltd. v. United States, 360 China: Final Results and Final information available (the predecessor F. Supp 2d 1339, 1348 (CIT 2005) Rescission, In Part, of Antidumping to facts available) because the margin (upholding a 223.01 percent total AFA Duty Administrative Review, 72 FR was based on another company’s rate, the highest available dumping 58642 (October 16, 2007), and uncharacteristic business expense, margin from a different respondent in a accompanying Issues and Decision resulting in an unusually high margin). previous administrative review). Memorandum at Comment 6. Similarly, the Department does not The Department’s practice when To be considered corroborated, apply a margin that has been selecting an adverse rate from among information must be found to be both discredited. See D & L Supply Co. v. the possible sources of information is to reliable and relevant. The AFA rate of United States, 113 F.3d 1220, 1221 (Fed. ensure that the margin is sufficiently 112.64 percent that we are applying in Cir. 1997) (finding that the Department adverse ‘‘as to effectuate the purpose of the current review represents the cannot use a margin that has been the facts available rule to induce judicially invalidated in its respondents to provide the Department 16 See e.g., Fresh Garlic from the People’s calculations). The AFA rate we are with complete and accurate information Republic of China: Preliminary Results and Partial applying for the instant review was Rescission of Antidumping Duty Administrative in a timely manner.’’ See Static Random Review and Preliminary Results of New Shipper calculated based on export price Access Memory Semiconductors from Reviews, 70 FR 69942, 69946 (November 18, 2005); information and production data from Taiwan; Final Determination of Sales at and Fresh Garlic from the People’s Republic of the petition, as well as the most Less than Fair Value, 63 FR 8909, 8932 China: Final Results and Partial Rescission of appropriate surrogate value information Antidumping Duty Administrative Review and (February 23, 1998). The Department’s Final Results of New Shipper Reviews, 71 FR 26329, available to the Department during the practice also ensures ‘‘that the party 26330 (May 4, 2006). LTFV investigation. As there is no
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information on the record of this review The Department determined that 772(c)(2)(A) of the Act.17 Because that demonstrates this rate is not India, the Philippines, Indonesia, foreign inland freight was provided by appropriate for use as AFA, we Colombia, Thailand, and Peru are a PRC service provider or paid for in determine this rate has relevance. countries comparable to the PRC in renminbi, we based that charge on a Because the AFA rate, 112.64 percent, terms of economic development. See surrogate rate from India. See ‘‘Factor is both reliable and relevant, we Policy Memorandum. Customarily, we Valuations’’ section below for further determine that it has probative value. As select an appropriate surrogate country discussion of surrogate rates. a result, we determine that the 112.64 from the Policy Memorandum based on In determining the most appropriate percent rate is corroborated to the extent the availability and reliability of data surrogate values (SVs) to use in a given practicable for the purposes of this from the countries that are significant case, the Department’s practice is to use administrative review, in accordance producers of comparable merchandise. review period-wide price averages, with section 776(c) of the Act, and may In this case, we found that India is at a prices specific to the input in question, reasonably be applied as AFA to the comparable level of economic prices that are net of taxes and import exports of the subject merchandise by development to the PRC; is a significant duties, prices that are contemporaneous Max Fortune. producer of the subject merchandise with the POR, and publicly-available (i.e., tissue paper); and has publicly- data. See, e.g., Certain Cased Pencils Non-Market Economy Country available and reliable data. See April 7, from the People’s Republic of China; In every case conducted by the 2010, Memorandum to The File entitled Final Results and Partial Rescission of Department involving the PRC, the PRC ‘‘2008–2009 Antidumping Duty Antidumping Duty Administrative has been treated as an NME country. Administrative Review on Certain Review, 71 FR 38366 (July 6, 2006), and Pursuant to section 771(18)(C)(i) of the Tissue Paper Products from the People’s accompanying Issues and Decision Act, any determination that a foreign Republic of China: Selection of a Memorandum at Comment 1. country is an NME country shall remain Surrogate Country’’ (Surrogate Country The Department valued inland truck in effect until revoked by the Memorandum). freight expenses using a per-unit average rate calculated from August administering authority. See, e.g., Accordingly, we selected India as the 2008 data on the following Web site: Freshwater Crawfish Tail Meat from the primary surrogate country for purposes http://www.infobanc.com/logistics/ People’s Republic of China: Notice of of valuing the FOPs in the calculation logtruck.htm. The logistics section of Preliminary Results of Antidumping of NV because it meets the Department’s this Web site contains inland freight Duty Administrative Review, 70 FR criteria for surrogate-country selection. truck rates between many large Indian 58672 (October 7, 2005) (unchanged in See Surrogate Country Memorandum. cities. Because this average rate is Freshwater Crawfish Tail Meat from the We obtained and relied upon publicly- contemporaneous with the POR, we did People’s Republic of China: Notice of available information wherever not adjust the rate for inflation. See Final Results of Antidumping Duty possible. Surrogate Value Memorandum. Administrative Review, 71 FR 7013 In accordance with 19 CFR (February 10, 2006)). None of the parties 351.301(c)(3)(ii), for the final results in Normal Value in this administrative review has antidumping administrative reviews, Section 773(c)(1) of the Act provides contested such treatment. Accordingly, interested parties may submit publicly that, in the case of an NME, the we calculated NV in accordance with available information to value FOPs Department shall determine NV using section 773(c) of the Act, which applies within 20 days after the date of an FOP methodology if the merchandise to NME countries. publication of these preliminary results. is exported from an NME and the Surrogate Country Fair Value Comparisons information does not permit the calculation of NV using home market Section 773(c)(1) of the Act directs the To determine whether sales of the prices, third country prices, or Department to base NV on the NME subject merchandise by SPA to the constructed value under section 773(a) producer’s FOPs, valued in a surrogate United States were made at prices below of the Act. The Department will base NV market-economy (ME) country or NV, we compared SPA’s export prices on FOPs because the presence of countries considered to be appropriate (EPs) to NV, as described in the ‘‘Export government controls on various aspects by the Department. In accordance with Price’’ and ‘‘Normal Value’’ sections of of NMEs renders price comparisons and section 773(c)(4) of the Act, in valuing this notice below, pursuant to section the calculation of production costs the FOPs, the Department shall use, to 773 of the Act. invalid under our normal the extent possible, the prices or costs methodologies. Therefore, we calculated of the FOPs in one or more ME Export Price NV based on FOPs in accordance with countries that are: (1) At a level of sections 773(c)(3) and (4) of the Act and economic development comparable to Because SPA sold subject merchandise to an unaffiliated 19 CFR 351.408(c). that of the NME country; and (2) For purposes of calculating NV, we significant producers of comparable purchaser in the United States prior to importation into the United States and valued the FOPs in accordance with merchandise. The sources of the section 773(c)(1) of the Act. The FOPs surrogate factor values are discussed use of a constructed-export-price methodology was not otherwise include: (1) Hours of labor required; (2) under the ‘‘Normal Value’’ section quantities of raw materials employed; below. See also the Department’s indicated, we used EP in accordance with section 772(a) of the Act. (3) amounts of energy and other utilities memorandum entitled, ‘‘Preliminary consumed; and (4) representative capital Results of the 2008–2009 We calculated EP based on the Administrative Review of the reported terms of delivery to the first 17 See the Department’s memorandum entitled, Antidumping Duty Order on Certain unaffiliated purchaser in the United ‘‘2008–2009 Administrative Review of the Tissue Paper Products from the People’s States. We made deductions from the Antidumping Duty Order on Certain Tissue Paper starting price (gross unit price) for Products from the People’s Republic of China: Republic of China: Factor Valuation for Preliminary Results Margin Calculation for Seaman the Preliminary Results,’’ dated April 7, foreign inland freight in the PRC and Paper Asia Company Ltd.,’’ dated April 7, 2010 2010 (Surrogate Value Memorandum). U.S. customs duties, pursuant to section (SPA Calculation Memo).
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costs, including depreciation. We used We valued the raw material and Finally, we excluded imports that were the FOP data reported by SPA for packing material inputs using weighted- labeled as originating from an materials, energy, labor, and packing. average unit import values derived from ‘‘unspecified’’ country from the average See section 773(c)(3) of the Act. the Monthly Statistics of the Foreign Indian import values, because we could In examining SVs, we selected, where Trade of India (MSFTI), as published by not be certain that they were not from possible, the publicly-available value, the Directorate General of Commercial either an NME or a country with general which was an average non-export value, Intelligence and Statistics of the export subsidies. representative of a range of prices Ministry of Commerce and Industry, As discussed above, the Department within the POR or most Government of India, and compiled by valued surrogate truck freight cost by contemporaneous with the POR, the World Trade Atlas (WTA), available using a per-unit average rate calculated product-specific, and tax-exclusive. See, at http://www.gtis.com/wta.htm. The from August 2008 data on the following e.g., Notice of Preliminary Indian WTA import data are reported in Web site: http://www.infobanc.com/ Determination of Sales at Less Than rupees and are contemporaneous with logistics/logtruck.htm. See Polyethylene Fair Value and Postponement of Final the POR.18 Indian SVs denominated in Retail Carrier Bags from the People’s Determination: Chlorinated Indian rupees were converted to U.S. Republic of China: Preliminary Results Isocyanurates from the People’s dollars using the applicable daily of Antidumping Duty Administrative Republic of China, 69 FR 75294, 75300 exchange rate for India for the POR. See Review, 73 FR 52282, 52286 (September (December 16, 2004) (unchanged in http://www.ia.ita.doc.gov/exchange/ 9, 2008) (and unchanged in Notice of Final Determination of Sales index.html. Where appropriate, we Polyethylene Retail Carrier Bags from at Less Than Fair Value: Chlorinated converted the units of measure to the People’s Republic of China: Final Isocyanurates from the People’s kilograms. See Surrogate Value Results of Antidumping Duty Republic of China, 70 FR 24502 (May Memorandum. Administrative Review, 74 FR 6857 10, 2005)). For a detailed explanation of Furthermore, with regard to the WTA (February 11, 2009)); and Surrogate the methodology used to calculate SVs, Indian import-based SVs, we Value Memorandum at Attachment 9. see Surrogate Value Memorandum. disregarded prices from NME We valued water using data from the countries 19 and those we have reason to Maharashtra Industrial Development Factor Valuations believe or suspect may be subsidized, Corporation (MIDC) because it includes In accordance with section 773(c) of because we have found in other a wide range of industrial water tariffs. the Act, we calculated NV based on the proceedings that these exporting This source provides 378 industrial countries maintain broadly available, FOP data reported by SPA for the POR. water rates within the Maharashtra non-industry-specific export subsidies We relied on the factor-specific data province from June 2009; 189 for the and, therefore, there is reason to believe ‘‘ ’’ submitted by SPA for the production inside industrial areas usage category; or suspect that all exports to all markets ‘‘ inputs in its questionnaire responses, and 189 for the outside industrial from such countries may be ’’ 21 where applicable, for purposes of areas usage category. Because these subsidized.20 We are also guided by the selecting SVs. To calculate NV, we data were not contemporaneous with statute’s legislative history that explains multiplied the reported per-unit factor the POR, we deflated the average value that it is not necessary to conduct a consumption rates by publicly-available to the POR using the WPI. See Surrogate formal investigation to ensure that such Indian SVs. Value Memorandum at Attachment 6. prices are not subsidized. See H.R. Rep. The Department calculated a simple In selecting the SVs, consistent with No. 576 100th Cong., 2. Sess. 590–91 average price for domestic coal using our past practice, we considered the (1988). Rather, the Department was data obtained from the Indian Mineral quality, specificity, and instructed by Congress to base its Yearbook and Coal India Limited. contemporaneity of the data. See, e.g., decision on information that is available Because these data were not Folding Metal Tables and Chairs from to it at the time it is making its contemporaneous with the POR, we the People’s Republic of China; Final determination. Therefore, we excluded adjusted the average value for inflation Results of Antidumping Duty export prices from Indonesia, South using WPI. See Surrogate Value Administrative Review, 71 FR 71509 Korea, Thailand, and India when Memorandum at Attachment 5. (December 11, 2006), and accompanying calculating the Indian import-based To value electricity, the Department Issues and Decision Memorandum at SVs. See Surrogate Value Memorandum. used March 2008 electricity price rates Comment 9. As appropriate, we from Electricity Tariff & Duty and adjusted input prices by including 18 See Surrogate Value Memorandum at Average Rates of Electricity Supply in freight costs to make them delivered Attachment 1. India, published by the Central 19 prices. Specifically, we added to Indian The NME countries are Armenia, Azerbaijan, Electricity Authority of the Government import SVs a surrogate freight cost using Belarus, Georgia, Kyrgyz Republic, Moldova, PRC, Tajikistan, Turkmenistan, Uzbekistan, and Vietnam. of India. Because these data were the shorter of the reported distance from 20 See Tapered Roller Bearings and Parts Thereof, contemporaneous with the POR, we did the domestic supplier to the factory or Finished and Unfinished, from the People’s not adjust the average value. See the distance from the nearest seaport to Republic of China; Final Results of the 1998–1999 Surrogate Value Memorandum at the factory, where appropriate. This Administrative Review, Partial Rescission of Review, and Determination Not to Revoke Order in Attachment 5. adjustment is in accordance with the Part, 66 FR 1953 (January 10, 2001), and For direct labor, indirect labor and decision of the U.S. Court of Appeals for accompanying Issues and Decision Memorandum at packing labor, consistent with 19 CFR the Federal Circuit (Federal Circuit). See Comment 1; Tapered Roller Bearings and Parts 351.408(c)(3), we used the PRC Sigma Corp. v. United States, 117 F. 3d Thereof, Finished and Unfinished, from the People’s Republic of China; Final Results of 1999– regression-based wage rates reflective of 1401, 1408 (Fed. Cir. 1997). Where 2000 Administrative Review, Partial Rescission of the observed relationship between necessary, we adjusted the SVs for Review, and Determination Not To Revoke Order in wages and national income in ME inflation/deflation using the Wholesale Part, 66 FR 57420 (November 15, 2001), and countries as reported on Import Price Index (WPI) as published in the accompanying Issues and Decision Memorandum at Comment 1; and China National Machinery Imp. & Administration’s Web site. See International Monetary Fund’s Exp. Corp. v. United States, 293 F. Supp. 2d 1334, International Financial Statistics, 1339 (CIT 2003), as affirmed by the Federal Circuit, 21 MIDC Web site is available at http:// available at http://ifs.apdi.net/imf. 104 Fed. Appx. 183 (Fed. Cir. 2004). www.midcindia.org.
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‘‘Expected Wages of Selected NME March 1, 2008, through February 28, In accordance with 19 CFR Countries’’ (revised December 2009) 2009: 351.212(b)(1), for SPA, we calculated an (available at http://www.trade.gov/ia/). importer-specific assessment rate for the For further details on the labor CERTAIN TISSUE PAPER PRODUCTS merchandise subject to this review calculation, see Surrogate Value FROM THE PRC because SPA submitted entered value Memorandum at Attachment 8. Because information with its U.S. sales the regression-based wage rates do not Individually reviewed exporter Margin reporting. Where an importer-specific separate the labor rates into different 2007–2008 administrative (percent) ad valorem rate is zero or de minimis, skill levels or types of labor, we applied review we will instruct CBP to liquidate the same wage rate to all skill levels and Seaman Paper Asia Company appropriate entries without regard to types of labor reported by SPA. Ltd...... 0.00 antidumping duties. See 19 CFR For factory overhead, selling, general, Max Fortune Industrial Ltd...... 112.64 351.106(c)(2). and administrative expenses (SG&A), With respect to Max Fortune, we will and profit values, consistent with 19 Disclosure instruct CBP to liquidate appropriate CFR 351.408(c)(4), we used the public entries at the PRC-wide rate of 112.64 information from the 2008–2009 annual We will disclose the calculations used percent. report of Pudumjee Pulp & Paper Mills in our analysis to parties to this Cash Deposit Requirements Ltd. (Pudumjee).22 From this proceeding within five days of the date information, we were able to determine of publication of this notice. See 19 CFR The following cash deposit factory overhead as a percentage of the 351.224(b). requirements will be effective upon publication of the notice of final results total raw materials, labor, and energy Interested parties are invited to of the administrative review for all (ML&E) costs; SG&A as a percentage of comment on the preliminary results and shipments of certain tissue paper ML&E plus overhead (i.e., COM); and may submit case briefs and/or written products from the PRC entered, or the profit rate as a percentage of the comments within 30 days of the date of withdrawn from warehouse, for COM plus SG&A. Where appropriate, publication of this notice. See 19 CFR consumption on or after the date of we did not include in the surrogate 351.309(c)(ii). Rebuttal briefs, limited to overhead and SG&A calculations the publication, as provided by section issues raised in the case briefs, will be 751(a)(2)(C) of the Act: (1) A cash excise duty amount listed in the due five days later, pursuant to 19 CFR financial report. For a full discussion of deposit rate of 0.00 percent will be 351.309(d). Parties who submit case or required for certain tissue paper the calculation of these ratios, see rebuttal briefs in this proceeding are Surrogate Value Memorandum and its products from the PRC exported by requested to submit with each argument SPA; (2) a cash deposit rate of 112.64 accompanying calculation worksheets at (1) a statement of the issue, and (2) a Attachment 7. percent will be required for certain brief summary of the argument. Parties tissue paper products from the PRC Verification are requested to provide a summary of exported by Max Fortune; (3) for the arguments not to exceed five pages As provided in section 782(i) of the previously reviewed or investigated and a table of statutes, regulations, and companies not listed above that have Act, we verified the information cases cited. Additionally, parties are submitted by SPA for use in our separate rates, the cash deposit rate will requested to provide their case brief and continue to be the company-specific rate preliminary results. We used standard rebuttal briefs in electronic format (e.g., verification procedures including an published for the most recent period; (4) Microsoft Word, pdf, etc.). Interested for all other PRC exporters of subject examination of relevant accounting and parties who wish to request a hearing or production records, and original source merchandise, which have not been to participate if one is requested, must found to be entitled to a separate rate, documents provided by SPA. See SPA submit a written request to the Assistant Verification Report. the cash deposit rate will be PRC-wide Secretary for Import Administration rate of 112.64 percent; and (5) for all Currency Conversion within 30 days of the date of publication non-PRC exporters of subject We made currency conversions into of this notice. Requests should contain: merchandise, the cash deposit rate will U.S. dollars, in accordance with section (1) The party’s name, address, and be the rate applicable to the PRC 773A(a) of the Act, based on the telephone number; (2) the number of exporter that supplied that non-PRC exchange rate in effect on the date of the participants; and (3) a list of issues to be exporter. These deposit requirements, U.S. sale, as certified by the Federal discussed. See 19 CFR 351.310(c). Issues when imposed, shall remain in effect Reserve Bank. See http:// raised in the hearing will be limited to until further notice. www.ia.ita.doc.gov/exchange/ those raised in case and rebuttal briefs. Notification to Importers index.html. The Department will issue the final results of this review, including the This notice serves as a preliminary Preliminary Results of Review results of its analysis of issues raised in reminder to importers of their As a result of our review, we any such written briefs or at the hearing, responsibility under 19 CFR preliminarily determine that the if held, not later than 120 days after the 351.402(f)(2) to file a certificate following margins exist for the period date of publication of this notice. regarding the reimbursement of Assessment Rates antidumping duties prior to liquidation 22 See Certain Tissue Paper Products from the of the relevant entries during this People’s Republic of China: Preliminary Results and Upon issuance of the final results, the review period. Failure to comply with Partial Rescission of Antidumping Duty Department will determine, and CBP Administrative Review, 73 FR 18497, 18502 (April this requirement could result in the 4, 2008) (unchanged in Certain Tissue Paper shall assess, antidumping duties on all Secretary’s presumption that Products from the People’s Republic of China: Final appropriate entries covered by this reimbursement of antidumping duties Results and Final Rescission, in Part, of review. The Department intends to issue occurred and the subsequent assessment Antidumping Duty Administrative Review, 73 FR assessment instructions to CBP 15 days 58113 (October 6, 2008) (Tissue Paper (AR2)). See of double antidumping duties. also PRC Tissue Paper—3rd AR, and accompanying after the publication date of the final This administrative review and notice Issues and Decision Memorandum at Comment 5. results of this review. are in accordance with sections
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751(a)(1) and 777(i) of the Act and 19 National Institute of Standards and The commenters consisted of twenty- CFR 351.221(b)(4). Technology (NIST) ‘‘to coordinate the three (23) private companies, five (5) Dated: April 7, 2010. development of a framework that Federal agencies, nine (9) individuals, includes protocols and model standards Ronald K. Lorentzen, twelve (12) non-profit organizations, for information management to achieve twelve (12) industry associations and Deputy Assistant Secretary for Import interoperability of smart grid devices Administration. two (2) universities. A detailed analysis and systems.’’ EISA also specifies that, of the comments follows. [FR Doc. 2010–8424 Filed 4–12–10; 8:45 am] ‘‘It is the policy of the United States to BILLING CODE 3510–DS–P support the modernization of the General Comments Nation’s electricity transmission and Comment: Fifteen (15) commenters distribution system to maintain a identified inconsistencies between the DEPARTMENT OF COMMERCE reliable and secure electricity text and logical interface diagrams and National Institute of Standards and infrastructure that can meet future suggested additions or deletions to the Technology demand growth and to achieve each of logical interface diagrams and the following, which together associated text. [Docket Number: 100202060–0143–01] characterize a Smart Grid: * * * Response: In the second draft of (1) Increased use of digital NISTIR 7628, the logical interface Second DRAFT NIST Interagency information and controls technology to diagrams and text have been updated Report (NISTIR) 7628, Smart Grid improve reliability, security, and and an overall functional logical Cyber Security Strategy and efficiency of the electric grid. architecture has been added. Requirements; Request for Comments (2) Dynamic optimization of grid Comment: Fifty-one (51) commenters AGENCY: National Institute of Standards operations and resources, with full suggested grammatical, editorial, and and Technology (NIST), Department of cyber-security * * *’’ language changes and correcting cited Commerce. With the Smart Grid’s transformation information and sources. of the electric system to a two-way flow ACTION: Notice; request for comments. Response: The relevant sections were of electricity and information, the updated to reflect suggested changes. SUMMARY: The National Institute of information technology (IT) and Some suggested changes were not Standards and Technology (NIST) seeks telecommunications infrastructures accepted because they are not consistent comments on the second draft of NISTIR have become critical to the energy sector with Government Printing Office (GPO) 7628, Smart Grid Cyber Security infrastructure. style. NIST has established a Smart Grid Strategy and Requirements. This second Comment: One (1) commenter Interoperability Panel. The Panel’s draft has been updated to address the suggested integration of Cyber Security Working Group (SGIP– comments submitted. In addition, the cryptographically strong identity CSWG) now has more than 375 privacy, vulnerability categories, management mechanisms. volunteer members from the public and bottom-up analysis, individual logical Response: Strong authentication is an private sectors, academia, regulatory interface diagrams, and the cyber important aspect of the Smart Grid. This organizations, and Federal agencies. security strategy sections have all been will be addressed in the next version of Cyber security is being addressed in a updated and expanded and the the NISTIR. There were several topics process that will result in a requirements section has been revised to that were not addressed in the second comprehensive set of cyber security include requirements for the entire draft of the NISTIR. The schedule for requirements. These requirements are Smart Grid. Finally, there are new completing the second draft was being developed using a high-level risk sections on research and development, extremely tight. Therefore, we will assessment process that is defined in the standards assessment, and an overall address this comment in the June draft, cyber security strategy for the Smart logical functional architecture. This is which is the next version. the second draft of NISTIR 7628; the Grid. NIST published a request for public Comment: One (1) commenter final version is scheduled to be posted suggested that security requirements be in the spring of 2010. comments in the Federal Register on October 9, 2009 (74 FR 152183) to seek amended to address potential insider DATES: Comments must be received on threats. or before June 2, 2010. public comment on the first draft of NIST Interagency Report (NISTIR) 7628, Response: The security requirements ADDRESSES: Written comments may be Smart Grid Cyber Security Strategy and are intended to address threats from sent to: Annabelle Lee, National Requirements. insiders and external entities. For the Institute of Standards and Technology, The comment period closed on next version of the NISTIR, additional 100 Bureau Dr., Stop 8930, December 1, 2009. The second draft of analysis will be completed to ensure Gaithersburg, MD 20899–8930. NISTIR 7628 incorporates changes that the insider threat is addressed. Electronic comments may be sent to: based on the comments received, which There were several topics that were not [email protected]. are summarized below. The complete addressed in the second draft of the The report is available at: http:// set of comments and NIST’s analysis are NISTIR. The schedule for completing csrc.nist.gov/publications/ posted at: http://csrc.nist.gov/ the second draft was extremely tight. PubsDrafts.html#NIST-IR-7628. publications/PubsDrafts.html#NIST-IR- Therefore, we will address this FOR FURTHER INFORMATION CONTACT: 7628. comment in the June draft, which is the Annabelle Lee, National Institute of next version. Standards and Technology, 100 Bureau Summary of Public Comments Received Comment: Seven (7) commenters Dr., Stop 8930, Gaithersburg, MD by NIST in Response to the Draft suggested amendments to the definition 20899–8930, telephone (301) 975–8897. NISTIR 7628, Cyber Security Strategy of the term ‘‘cyber security’’ to be more SUPPLEMENTARY INFORMATION: Section and Requirements, and NIST’s inclusive of the electric sector. 1305 of the Energy Independence and Response to Those Comments Response: The definition of ‘‘cyber Security Act (EISA) of 2007 (Pub. L. NIST received comments from sixty- security’’ was modified to focus on the 110–140) requires the Director of the three (63) organizations and individuals. electric sector.
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Comment: Four (4) commenters Comment: One (1) commenter the Smart Grid. The second draft of the suggested including definitions of encouraged NIST to collaborate closely NISTIR clarifies that a risk assessment frequently used terms and acronyms to with the electric utility industry to needs to be performed at regular ensure clear and consistent meanings develop options for integrating legacy intervals to address new threats and throughout the document. equipment into a smarter grid. vulnerabilities. This discussion will be Response: A glossary has been Response: The NISTIR has been further expanded on the next version of included in the second draft of the revised to clarify that the content is at the NISTIR. NISTIR. a high level and each organization will Comment: Five (5) commenters Comment: Seven (7) commenters need to address security based on their suggested including a high-level recommended establishing regulations specific requirements. The intent of the ‘‘summary’’ or user guide of the and policies addressing various facets of NISTIR is to identify security document in order to help readability. Smart Grid, including naming an requirements for the end-to-end grid, Response: The final version of the enforcement authority, privacy training including the integration of legacy NISTIR will include design and awareness, management and user equipment. considerations and/or a user guide to accountability, use and retention of user Comment: One (1) commenter advised assist people in the use of the data, and law enforcement access to NIST to implement role-based access document. Smart Grid data. control to Smart Grid data. Comment: One (1) commenter Response: These comments are Response: The NISTIR has been inquired about how NIST would evolve outside the scope of the NISTIR and the revised to include role-based access the document to address emerging Smart Grid Interoperability Panel (SGIP) control because NIST agrees that role- threats, Smart Grid paradigms and other Cyber Security Working Group (CSWG) based access control is good practice. changing elements of security. Comment: Four (4) commenters because they focus on regulations and Response: The second draft of the suggested that the NISTIR should focus policies. NISTIR clarifies that the risk assessment on the specificity of standards Comment: Eighteen (18) commenters needs to be performed at regular pertaining to cyber security rather than suggested that the NISTIR should be intervals to address emerging threats, data privacy. clarified with respect to purpose and new vulnerabilities, and changes in Response: Both reliability and privacy intent of the document. It does not technology. This discussion will be are being addressed by the NISTIR as create Smart Grid Cyber Security further expanded on the next version of ‘‘ ’’ both are critical to the effective requirements, rather acts as a strategy the NISTIR. document intended to facilitate the operation of the Smart Grid. Comment: One (1) commenter development of such requirements. Comment: One (1) commenter inquired about Smart Grid Security Response: The NISTIR was revised to recommended creating a risk Certification and NIST’s role in clarify that the document is a guidance management framework focused on determining the relevancy of such document and that the content is not protecting the functions of the electric certification. mandatory. In addition, text was added power system rather than the individual to clarify how the NISTIR may be used assets. Response: The Smart Grid by organizations as they develop a cyber Response: The risk assessment Interoperability Panel (SGIP) Testing security strategy and specify security process included in the NISTIR and Certification Committee has been requirements for the Smart Grid. addresses the functions of and established to focus on this issue. The Comment: Three (3) commenters information in the electric grid, not SGIP–Cyber Security Working Group suggested adding the following sections individual assets. (SGIP–CSWG) will be coordinating with to the NISTIR: Comment: One (1) commenter this new committee. • Multi-Tier Control System suggested that interoperability and Comments and Responses Regarding Criticality Model. system security standards be developed Chapter One, Cyber Security Risk • Control System Trust Model. that apply directly to the interfaces and Management Framework and Strategy • Threat-based Requirements. the equipment being integrated. Response: These comments are being Response: This design consideration Comment: One (1) commenter reviewed for possible inclusion in the will be reviewed in depth for the next suggested that the NISTIR document be next version of the NISTIR. There were draft of the NISTIR. There were several revised to be consistent with the ‘‘NIST several topics that were not addressed topics that were not addressed in the Framework and Roadmap for Smart in the second draft of the NISTIR. The second draft of the NISTIR. The Grid Interoperability Standards.’’ Also, schedule for completing the second schedule for completing the second the document should clearly articulate a draft was extremely tight. Therefore, we draft was extremely tight. Therefore, we strategy for Smart Grid Cyber Security. will address this comment in the June will address this comment in the June Response: The cyber security strategy draft, which is the next version. draft, which is the next version. The in the NIST Framework and the NISTIR Comment: One (1) commenter NISTIR is intended to assist all are the same. Also, additional proposed use of risk-based performance stakeholders of the Smart Grid as they information was included in the NIST standards rather than security-specific develop requirements and integration Framework document and in the requirements. strategies. NISTIR to clarify how the two Response: The comment will be Comment: One (1) commenter documents should be used. considered during the development of recommended assessing any potential Comment: One (1) commenter the next version of the NISTIR. There cyber security impacts on the Smart requested a more detailed definition of were several topics that were not Grid beyond the scope of IT and how the North American Electric addressed in the second draft of the telecommunications; new Reliability Corporation (NERC) Critical NISTIR. The schedule for completing vulnerabilities applicable to the Smart Infrastructure Protection (CIP) standards the second draft was extremely tight. Grid could be introduced regularly. 002–CIP 009 will apply to the Smart Therefore, we will address this Response: The second draft of the Grid. These standards currently apply to comment in the June draft, which is the NISTIR provides additional information the bulk power system and it would be next version. on impacts that affect the reliability of costly to apply them to all of the
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Advanced Metering Infrastructure (AMI) addresses the entire Smart Grid, not just essential to the functioning of the Smart and Distribution systems. the bulk power system. Grid. Also, restrictions on the use and Response: The NERC CIPs are Comment: One (1) commenter retention of data should be mandatory, mandatory for the bulk power system. suggested the expansion of the risk not merely best practices. The NISTIR includes security assessment to address distribution, Response: The scope of the NISTIR is requirements for the entire Smart Grid, transmission, and generation, in to provide recommendations. and the NERC CIPs are some of the addition to AMI. Implementation of regulations and standards used as source documents for Response: The second draft of the mandatory practices are outside the the security requirements. NISTIR clarifies that the risk assessment scope of the NISTIR and the CSWG. Comment: Two (2) commenters should address the entire Smart Grid, Comment: One (1) commenter stated commented about the aggressive not just AMI. the importance of having clear, strong timeline for developing security Comment: One (1) commenter language spelling out specific privacy requirements and the potential for inquired about the Smart Grid protection. inferior standards, requirements, and/or distribution system in relation to the Response: The privacy chapter of the strategies because of the limited jurisdiction of NERC. second draft of the NISTIR has been timeline. Response: The NISTIR addresses the revised and now includes revised Response: Because of the short time entire Smart Grid. Any questions related privacy principles relevant to the Smart schedule, tasks are being done in to the jurisdiction of NERC should be Grid. Comment: One (1) commenter parallel. The SGIP–CSWG recognizes forwarded to that organization. suggested that the privacy chapter the impact this may have and is working Comment: One (1) commenter should relate how the findings in the hard to ensure the quality is at a high recommended a continual assessment of ‘‘high-level privacy impact assessment level. cyber security risks to the Smart Grid be (PIA) of the consumer-to-utility Comment: One (1) commenter noted performed. This way, a common lexicon metering data sharing portion of the the impact of new logical interface or language to capture system Smart Grid’’ can be applied to the whole categories, security considerations, and vulnerabilities that require continual of the Smart Grid. Otherwise, this whole appropriate controls on the current monitoring can be determined. Response: This recommendation will chapter belongs as an appendix as a NISTIR. The overview should mention be considered for the final version of the summary of those findings. that the document is not exhaustive and NISTIR. Response: The privacy chapter in the excludes certain topics. Comment: One (1) commenter second draft of the NISTIR clarifies that Response: The second draft of the suggested that NIST should integrate the privacy impact assessment was NISTIR clarifies that the document is adequate cyber security protection at all performed for the entire Smart Grid. neither finalized nor comprehensive on levels (device, application, network and Comment: Two (2) commenters all topics. system) in the development of a cyber recommended removing the privacy Comment: One (1) commenter security strategy. This level of cyber chapter from the NISTIR and creating a proposed two specific strategies for security protection should go beyond stand-alone document about Smart Grid developing a cyber security framework the requirements of NERC CIP Privacy. for the Smart Grid: Reliability Standards. Response: Privacy is an important 1. NIST and the industry should Response: The NISTIR has been topic and is addressed alongside cyber develop a focus on response and modified to clarify that the security security in the NISTIR. Although recovery. Although the primary goal of requirements are applicable to the entire privacy and security are not the same, a cyber security strategy should be Smart Grid. The NERC CIPs were many of the security requirements that prevention, a response and recovery considered in the development of the address privacy also address plan needs to be developed in the event security requirements. confidentiality which is a security of a cyber attack. objective. Because the two are closely 2. It is essential that those parts or Comments and Responses Regarding related, they are both included in the equipment of the Smart Grid that Chapter Two, Privacy and the Smart NISTIR. optimize the system are separate from Grid Comment: One (1) commenter the core components of the Smart Grid. Comment: One (1) commenter proposed adopting a ‘‘privacy by design’’ In the event of a cyber security incident suggested that NIST’s approach to Smart approach. By building standards that on the grid, the core components can be Grid privacy is insufficient. reflect privacy interests, rather than recovered with minimal technology in a Response: The privacy chapter has attempting to tack on privacy at a later quick and efficient manner, thereby been significantly revised and includes point, this is the most effective means assuring bulk power system reliability. more comprehensive privacy principles. of protecting consumer privacy and This will also help identify where Comment: One (1) commenter security. Ensuring privacy is addressed response plan decisions and actions can recommended that fair information at an early stage will also be less be carried out to protect core practices be adopted. expensive than attempting to address functionality and/or quickly restore it. Response: The second draft of the these issues in the future and will make Response: The cyber security strategy NISTIR has a rewritten privacy chapter the grid more adaptable to changing included in the NISTIR addresses that includes privacy principles that threats to privacy and security as use prevention, response, and recovery for addresses this concern. increases. events that affect the Smart Grid. The Comment: One (1) commenter Response: Organizations utilizing the cyber security strategy and the security suggested that a rulemaking be Smart Grid should take a holistic view requirements included in the NISTIR developed so that service providers toward privacy, building in privacy are at a high level and do not focus on establish a concrete set of approved from project initiation whenever specific parts and equipment. It is the purposes for which PII activity is possible, rather than as an add-on at a responsibility of each organization to permitted. That list of approved later date. This will be further expanded provide more granular security purposes should be very limited and PII in the next draft of the NISTIR. The requirements. Also, the NISTIR activity only be permitted for purposes Privacy sub-group plans to develop
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relevant use cases with the intent of Comment: One (1) commenter by the Advanced Security Acceleration including them in the final version of proposed two additional constraints to Project for the Smart Grid (ASAP–SG) the NISTIR. The second draft of the Category 11— project as part of the AMI Security NISTIR includes suggested privacy 1. System scale and diversity Profile document which is now being principles that are applicable to the prohibits a unified solution to security maintained by the UCA International Smart Grid that may be useful to many management. Users Group (UCAIug) Smart Grid (SG) organizations. 2. Ubiquitous networking of devices Security working group. Comment: Eight (8) commenters combined with remote control Comment: One (1) commenter encouraged including privacy principles capabilities can enable coordinated suggested removing ‘‘AMI’’ from the to cover all Smart Grid entities and manipulation of load on a large scale. section title and adding a section on practices and develop use cases that Also, an additional impact to Category ‘‘Smart Grid Control Systems Security reflect a comprehensive model of data 11 was proposed— Requirements’’ to this section. flow detailing necessary consumer 1. Possible large-scale load Response: The chapter was revised to privacy protections. manipulation through distributed address security requirements for the Response: The second draft of the control of unsecured or compromised entire Smart Grid and the title of the NISTIR includes privacy principles devices. chapter was changed to ‘‘High-Level applicable to the entire Smart Grid. The Response: The Logical Interface Security Requirements.’’ next draft of the NISTIR will include Category Definitions section has been Comment: One (1) commenter privacy use cases. rewritten in the second draft of the recommended that the requirements be Comment: Two (2) comments NISTIR. Rather than constraints, Table refined to remove statements requiring suggested updating the NISTIR to 3.1 provides the analysis matrix of the ‘‘all components’’ to include security address privacy policies, standards, and security-related logical interface features. Many security requirements supporting procedures on information categories against the attributes that can effectively be handled in a central collection and uses. reflect the interface categories. ‘‘system’’ method. Comment: One (1) commenter Response: The privacy section has Response: The second draft of the suggested that the logical interface been revised to include privacy NISTIR includes security requirements diagrams be moved and re-titled principles that address these concerns. for the entire Smart Grid. The security ‘‘ ’’ Proposed Logical Interfaces. requirements in the second draft of the Comment: Three (3) commenters Response: The second draft of the NISTIR are at a high level and do not suggested that any attempt to define NISTIR has been revised to clarify that specify specific solutions or controls. Personally Identifiable Information (PII) these are logical interface diagrams, are Comment: One (1) commenter must account for rules and definitions not solutions, and do not imply any proposed that the requirements should of PII in other jurisdictions. There is architectural implementations. also a difference between data privacy Comment: One (1) commenter be more flexible to allow alternatives and data security. NIST should focus on identified a high-risk, low-tech attack that meet the security requirement for data security issues and especially upon that did not apply to the Confidentiality, efficiency and effectiveness. data security that effectively frustrates Integrity, or Availability (CIA) of Smart Response: The second draft of the security breaches that result in identity Grid data. NISTIR includes requirements for the theft. Response: Both the Vulnerability and entire Smart Grid. The security Response: In the second draft of the Bottom-up sub-groups within the SGIP– requirements in the second draft of the NISTIR the content of the privacy CSWG will review this attack to include NISTIR are at a high level and do not chapter has been revised and the term in Appendix C or Appendix D of the specify specific solutions or controls. PII is not included. PII is defined very final version of the NISTIR. Comment: One (1) commenter specifically and does not include Comment: Twenty (20) commenters suggested that the AMI-Security Task concepts that are used in Smart Grid. suggested changes to examples within Force (SEC) requirements should be Both data privacy and data security are the logical interface categories. included in an informative annex and important to the Smart Grid and are Response: Examples for the logical not in the main body of the document. included in the NISTIR. interface categories were changed Response: The second draft of the Comment: One (1) commenter accordingly. NISTIR includes requirements for the suggested that it will be necessary to entire Smart Grid, not just on AMI. The address the privacy of customer Comments and Responses Regarding AMI requirements will be included in a information generated by Smart Grid Chapter Four, Advanced Metering reference list that will be added to the installations. Infrastructure (AMI) Security final version of the NISTIR. Response: The privacy chapter has Requirements Comment: One (1) commenter been revised and includes privacy Comment: Twenty-five (25) proposed that the focus should be on principles. commenters suggested that how to secure the transported requirements be clear, non-prescriptive, information through the Internet rather Comments and Responses Regarding cost effective and scalable based on the than discourage its use. Chapter Three, Logical Interface criticality of the device or system. Response: The second draft of the Analysis Certain requirements also require NISTIR includes requirements for the Comment: Twenty-seven (27) further clarification and detail. entire Smart Grid. The security commenters recommended changing the Response: The second draft of the requirements in the second draft of the impact levels of various logical interface NISTIR includes requirements for the NISTIR are at a high level and do not categories. entire Smart Grid. The security specify specific solutions or controls. Response: The impact levels for the requirements in the second draft of the Use of the Internet is a specific solution. logical interface categories have been NISTIR are at a high level and do not Comment: Thirteen (13) commenters revised. They will continue to be specify specific solutions or controls. provided comments about specific AMI reviewed and revised for the final The AMI requirements included in the controls. Suggestions included: version of the NISTIR. first draft of the NISTIR were developed • Text revisions for technical content.
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• Inquiries regarding clarification or Smart Grid architecture all reasonable requirements in the NISTIR. The final further detail. and cost-effective safeguards to protect version of the NISTIR will list the • Deletion of text. the privacy of customer information, specific requirements; therefore, • Accidental omissions. while also (2) educating State and individuals will not need to refer to the • Concerns regarding specific use Federal policy makers as to the potential source documents. cases. costs and benefits of including the Comment: One (1) commenter was • Inconsistency in terminology. highest level of cyber security concerned that statements in Appendix • Inclusion of additional relevant safeguards into Smart Grid installations. D.4, Openness and Accessibility of controls. Response: A strong focus has been Response: The second draft of the Smart Grid Standards, could be placed on reliability, since it is a first misconstrued to imply that simply NISTIR includes requirements for the priority to the power grid. However, entire Smart Grid. The AMI because there is a charge for a standard confidentiality is also very critical and ‘‘ ’’ requirements included in the first draft that the standard is not accessible. the SGIP–CSWG will coordinate with Neither openness nor accessibility of the NISTIR were developed by the State and Federal policy makers when ASAP–SG project as part of the AMI demands that documents be made developing future versions of the available without charge. Security Profile document which is now NISTIR. The NISTIR focuses on high being maintained by the UCAIug SG level security requirements and not Response: The language was changed Security working group. The eighty-six specific controls that are to avoid possible confusion in (86) comments were forwarded to the implementation specific. Outreach to associating these standards with closed, ASAP–SG team. Federal and State representatives and secretly developed algorithms. Comment: One (1) commenter private sector organizations are an Comment: Ten (10) commenters recommended that there are two further important task and will be considered provided additional references for pieces of work that will be vital to the for the future. inclusion in the NISTIR or changes to success of this project, and in which the Comment: Thirteen (13) commenters existing references. security research community could be recommended changes and updates to Response: These references will be engaged, as they are of technical interest use cases presented in Appendix A. as well as being important. considered in developing the final Examples of such recommendations version of the NISTIR. 1. Security policy for the core of the include: network. • Revisions to the retail power Comment: One (1) commenter 2. Information flow policies at the electricity market scenario. suggested additional information periphery (between the meter, home and • Revisions to reflect continuing regarding cryptography and key network). regional diversity in wholesale power management. Response: An R&D sub-group was markets. Response: Cryptography and key • established under the SGIP CSWG and Refine statements regarding power management are important areas for the a chapter in the second draft of the system operations to demonstrate some Smart Grid. They will be examined NISTIR includes R&D themes. This portions of a power system can cease more fully in the final version of the comment has been forwarded to that operations without an objectionable NISTIR and a new sub-group has been group for evaluation and potential impact on the overall power system. established to address these topics. inclusion in the final version of the • Clarification that the Use Cases are NISTIR. not mandatory. Request for Comments: NIST seeks • Design considerations to assist public comments on the second draft of Comments and Responses Regarding people with the use/application of the NISTIR 7628. The report will be revised Appendices document. on the basis of comments received and Comment: Five (5) commenters • Concerns regarding impact a final version is scheduled to be posted suggested additional use cases to (financially to the Utility and to in late spring of 2010. include in the document or edits to customer trust) of incorrect data. The document will contain the final existing use cases. Response: The Use Cases presented in set of security controls and the final • Additions to Retail Power Appendix A are neither exhaustive nor security architecture. complete. New Use Cases may be added Electricity Market Use Case. Comments on draft NISTIR 7628, • Considerations for variation in: as they evolve in future versions of this Smart Grid Cyber Security Strategy and Æ Real Time Pricing (RTP) for document. The Use Cases were derived Requirements, may be transmitted Customer Load and Distributed Energy ‘‘as-is’’ from their sources and put into electronically to: Resources (DER)/Plug-in Electric a common format for evaluating Smart [email protected]. They also Vehicles (PEV). Grid characteristics and associated may be mailed to: Annabelle Lee, Æ Time of Use (TOU) Pricing. cyber security objectives, requirements National Institute of Standards and Æ Power Bulk Electricity Market. and stakeholder concerns. The section Technology, 100 Bureau Dr., Stop 8930, Regional Transmission Operators introduction has been modified to Gaithersburg, MD 20899–8930. (RTO). reflect this more clearly. Independent System Operators Comment: One (1) commenter Comments must be received no later (ISO). suggested it would be helpful to have a than June 2, 2010. Response: The security-relevant tool to help resolve conflicts between E.O. 12866: This notice has been content of these use cases will be relevant standards. It is not clear which determined not to be significant for the considered for the final version of the document should be followed for each purposes of E.O. 12866. NISTIR. security requirement in the Draft Comment: One (1) commenter urged NISTIR. Dated: April 7, 2010. NIST to follow a two-track approach in Response: Appendix B has been Marc G. Stanley, order to address any confidentiality revised to only list the source Acting Deputy Director, NIST. issues: (1) Ensuring that its cyber documents and not standards, that were [FR Doc. 2010–8415 Filed 4–12–10; 8:45 am] security standards incorporate into used in developing the security BILLING CODE 3510–13–P
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COMMODITY FUTURES TRADING FOR FURTHER INFORMATION CONTACT: Gary • The accuracy of the Commission’s COMMISSION J. Martinaitis, (202) 418–5209; FAX estimate of the burden of the proposed (202) 418–5527; e-mail: collection of information, including the Agency Information Collection [email protected]. validity of the methodology and Activities: Notice of Intent To Renew assumptions used; SUPPLEMENTARY INFORMATION: Under the Collection 3038–0019, Stocks of Grain • Ways to enhance the quality of, in Licensed Warehouses PRA, Federal agencies must obtain approval from the Office of Management usefulness, and clarity of the AGENCY: Commodity Futures Trading and Budget (OMB) for each collection of information to be collected; and Commission. information they conduct or sponsor. • Ways to minimize the burden of ACTION: Notice. ‘‘Collection of information’’ is defined in collection of information on those who 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) are to respond, including through the SUMMARY: The Commodity Futures and includes agency requests or use of appropriate electronic, Trading Commission (‘‘the requirements that members of the public mechanical, or other technological Commission’’) is announcing an submit reports, keep records, or provide collection techniques or other forms of opportunity for public comment on the information to a third party. Section information technology; e.g., permitting proposed collection of certain 3506(c)(2)(A) of the PRA, 44 U.S.C. electronic submission of responses. information by the agency. Under the 3506(c)(2)(A), requires Federal agencies Stocks of Grain in Licensed Paperwork Reduction Act of 1995 to provide a 60-day notice in the (PRA), 44 U.S.C. 3501 et seq., Federal Warehouses, OMB Control No. 3038– Federal Register concerning each 0019—Extension agencies are required to publish notice proposed collection of information, in the Federal Register concerning each including each proposed extension of an Under Commission Rule 1.44, 17 CFR proposed collection of information, and existing collection of information, 1.44, contract markets must require to allow 60 days for comment in before submitting the collection to OMB operators of warehouses regular for response to the notice. This notice for approval. To comply with this delivery to keep records on stocks of solicits comments on requirements requirement, the Commission is commodities and make reports on call relating to information collected to publishing notice of the proposed by the Commission. The rule is assist the Commission in the prevention collection of information listed below. designed to assist the Commission in of market manipulation. With respect to the following prevention of market manipulation and DATES: Comments must be submitted on collection of information, the is promulgated pursuant to the or before June 14, 2010. Commission invites comments on: Commission’s rulemaking authority ADDRESSES: Comments may be mailed to • Whether the proposed collection of contained in section 5a of the Gary J. Martinaitis, Division Economic information is necessary for the proper Commodity Exchange Act, 7 U.S.C. 7a. Analysis, U.S. Commodity Futures performance of the functions of the The Commission estimates the burden Trading Commission, 1155 21st Street Commission, including whether the of the collection of information as NW., Washington, DC 20581. information will have a practical use; follows:
ESTIMATED ANNUAL REPORTING BURDEN
Annual 17 CFR section number of Frequency of Total annual Hours per Total hours respondents response responses response
17 CFR 1.42 & 1.43 ...... 3 Weekly 156 1.0 156
There are no capital costs or operating DEPARTMENT OF DEFENSE Conference Room #2, Arlington, VA and maintenance costs associated with 22209. this collection. Office of the Secretary FOR FURTHER INFORMATION CONTACT: Ms. This estimate is based on the number Federal Advisory Committee; Meeting Carolyn Thorne at 703–588–7890 for of exchanges providing such weekly of the Department of Defense information or upon arrival at the data to the Commission and the number Historical Advisory Committee building in order to be admitted. of elevator operators from which the Dated: April 8, 2010. exchanges collect the data. AGENCY: Department of Defense (DoD). Mitchell S. Bryman, ACTION: Notice of open meeting. Dated: April 7, 2010. Alternate OSD Federal Register Liaison David Stawick, SUMMARY: In accordance with the Officer, Department of Defense. Secretary of the Commission. provisions of the Federal Advisory [FR Doc. 2010–8357 Filed 4–12–10; 8:45 am] [FR Doc. 2010–8421 Filed 4–12–10; 8:45 am] Committee Act, this notice announces a BILLING CODE 5001–06–P meeting of the Department of Defense BILLING CODE P Historical Advisory Committee. During the meeting the Committee will discuss DEPARTMENT OF DEFENSE the report of the Department of the Army Subcommittee. The meeting will Office of the Secretary be open to the public. Federal Advisory Committee; U.S. DATES: The meeting will be held on Strategic Command Strategic Advisory Tuesday, May 18, 2010, at 1 p.m. Group; Closed Meeting ADDRESSES: The meeting will be held at 1777 North Kent Street, 14th Floor, AGENCY: Department of Defense (DoD).
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ACTION: Notice of advisory committee in response to the stated agenda of a Property, U.S. Department of Energy, closed meeting. planned meeting. Written statements Forrestal Building, Room 6F–067, 1000 should be submitted to the Strategic Independence Ave., SW., Washington, SUMMARY: Pursuant to the Federal Advisory Group’s Designated Federal DC 20585; Telephone (202) 586–3815. Advisory Committee Act of 1972 (5 Officer; the Designated Federal Officer’s SUPPLEMENTARY INFORMATION: 35 U.S.C. U.S.C. App 2, Section 1), the contact information can be obtained 209 provides Federal agencies with Government in the Sunshine Act of from the GSA’s FACA Database— authority to grant exclusive licenses in 1976 (5 U.S.C. 552b), and 41 CFR 102– https://www.fido.gov/facadatabase/ Federally-owned inventions, if, among 3.150, the Department of Defense public.asp. Written statements that do other things, the agency finds that the announces that the U.S. Strategic not pertain to a scheduled meeting of public will be served by the granting of Command Strategic Advisory Group the Strategic Advisory Group may be the license. The statute requires that no will meet on May 6 and 7, 2010. The submitted at any time. However, if exclusive license may be granted unless meeting is closed to the public. individual comments pertain to a public notice of the intent to grant the DATES: The meeting will be held: specific topic being discussed at a license has been provided, and the May 6, 2010, from 8 a.m. to 5 p.m. planned meeting, then these statements agency has considered all comments May 7, 2010, from 8 a.m. to 11:30 a.m. must be submitted no later than five received in response to that public ADDRESSES: The meeting will be held at business days prior to the meeting in notice before the end of the comment the Dougherty Conference Center, question. The Designated Federal period. Under 37 CFR 404.7, DOE has Building 432, 906 SAC Boulevard, Officer will review all submitted written considered whether the interests of the Offutt AFB, Nebraska 68113. statements and provide copies to all the Federal Government or the United committee members. FOR FURTHER INFORMATION CONTACT: Mr. States industry in foreign commerce Bruce Sudduth, Designated Federal Dated: April 8, 2010. will be enhanced. Officer, (402) 294–4102, 901 SAC Blvd., Mitchell S. Bryman, Advantage Electronic Product Development Incorporated/Utility Crew Suite 1F7, Offutt AFB, NE 68113–6030. Alternate OSD Federal Register Liaison For supplementary information, Officer, Department of Defense. Safety LLC, of Broomfield, Colorado, has applied for an exclusive license to contact: Mr. Floyd March, Joint Staff, [FR Doc. 2010–8433 Filed 4–12–10; 8:45 am] (703) 697–0610. practice the inventions embodied in BILLING CODE 5001–06–P U.S. Patent Application No. 12/401,033, SUPPLEMENTARY INFORMATION: entitled ‘‘Ground Potential Rise Purpose of the Meeting Monitor’’ and PCT/US10/26189, entitled DEPARTMENT OF ENERGY ‘‘Ground Potential Rise Monitor,’’ and The purpose of the meeting is to has plans for commercialization of the provide advice on scientific, technical, Advantage Electronic Product inventions. The exclusive license will intelligence, and policy-related issues to Development Incorporated/Utility Crew be subject to a license and other rights the Commander, U.S. Strategic Safety LLC retained by the U.S. Government and Command, during the development of AGENCY: Department of Energy. other terms and conditions to be the Nation’s strategic war plans. ACTION: Notice of intent to grant negotiated. DOE intends to negotiate to Agenda exclusive patent license. grant the license, unless, within 15 days of this notice, the Assistant General Topics include: Policy Issues, Space SUMMARY: Notice is hereby given with Operations, Nuclear Weapons Stockpile Counsel for Technology Transfer and an intent to grant to: Advantage Intellectual Property, Department of Assessment, Weapons of Mass Electronic Product Development Destruction, Intelligence Operations, Energy, Washington, DC 20585, receives Incorporated/Utility Crew Safety LLC, of in writing any of the following, together Cyber Operations, Global Strike, Broomfield, Colorado, an exclusive Command and Control, Science and with supporting documents: license to practice the inventions (i) A statement from any person Technology, Missile Defense. described in U.S. Patent Application setting forth reason why it would not be Meeting Accessibility No. 12/401,033, entitled ‘‘Ground in the best interests of the United States Potential Rise Monitor,’’ and PCT/US10/ Pursuant to 5 U.S.C. 552b, and 41 CFR to grant the proposed license; or 26189, entitled ‘‘Ground Potential Rise 102–3.155, the Department of Defense (ii) An application for a nonexclusive Monitor,’’ in the United States and in has determined that the meeting shall be license to the invention in which foreign countries. The inventions are closed to the public. Per delegated applicant states that it already has owned by the United States of America, authority by the Chairman, Joint Chiefs brought the invention to practical as represented by the U.S. Department of Staff, General Kevin P. Chilton, application or is likely to bring the of Energy (DOE). Commander, U.S. Strategic Command, invention to practical application in consultation with his legal advisor, DATES: Written comments or expeditiously. The Department will review all timely has determined in writing that the nonexclusive license applications are to written responses to this notice and will public interest requires that all sessions be received at the address listed below proceed with negotiating the license if, of this meeting be closed to the public no later than April 28, 2010. after consideration of written responses because they will be concerned with ADDRESSES: Office of the Assistant to this notice, a finding is made that the matters listed in section 552b(c)(1) of General Counsel for Technology license is in the public interest. title 5, U.S.C. Transfer and Intellectual Property, U.S. Department of Energy, 1000 Issued in Washington, DC, on April 07, Written Statements Independence Ave., SW., Washington, 2010. Pursuant to 41 CFR 102–3.105(j) and DC 20585. Paul A. Gottlieb, 102–3.140, the public of interested FOR FURTHER INFORMATION CONTACT: Assistant General Counsel for Technology organizations may submit written Annette R. Reimers, Office of the Transfer and Intellectual Property. statements to the membership of the Assistant General Counsel for [FR Doc. 2010–8389 Filed 4–12–10; 8:45 am] Strategic Advisory Group at any time or Technology Transfer and Intellectual BILLING CODE 6450–01–P
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DEPARTMENT OF ENERGY consist of: (1) An existing 80-foot-long, DEPARTMENT OF ENERGY 4-foot-wide, and 5-foot-high masonry Notice of Inventions Available for dam; (2) an existing 48-inch square Federal Energy Regulatory License sluice gate structure feeding into; (3) a Commission AGENCY: Department of Energy. new 18-inch-diameter, approximately [Project No. 2615–037] ACTION: Notice of inventions available 535-foot-long penstock leading to; (4) an for license. existing 25-foot-high, 22-foot-square FPL Energy Maine Hydro LLC, Madison stone-masonry building to house; (5) a Paper Industries, and Merimil Limited SUMMARY: The Department of Energy new turbine generator unit, with a Partnership; Notice of Application hereby announces that the following maximum hydraulic capacity of 5 cubic Tendered for Filing With the invention is available for license, in feet per second (cfs) and total installed Commission and Establishing accordance with 35 U.S.C. 207–209: generating capacity of 10 kilowatts Procedural Schedule for Licensing and PCT/US10/26189, entitled ‘‘Ground (kW); (6) a new approximately 400-foot- Deadline for Submission of Final Potential Rise Monitor.’’ long, 3.4 kilovolt (kV) transmission line, Amendments FOR FURTHER INFORMATION CONTACT: which would connect with the existing April 6, 2010. Annette R. Reimers, Office of the 23 kV distribution line owned by Take notice that the following Assistant General Counsel for Connecticut Power & Light and adjacent hydroelectric application has been filed Technology Transfer and Intellectual to the applicant’s property; and (7) with the Commission and is available Property, U.S. Department of Energy, appurtenant facilities. The Warren for public inspection: Forrestal Building, Room 6F–067, 1000 Project would have an estimated average a. Type of Application: New Major Independence Ave., SW., Washington, annual generation of 50,000 kilowatt- License. DC 20585; Telephone (202) 586–3815. hours (kWh), which would be used by b. Project No.: 2615–037. SUPPLEMENTARY INFORMATION: 35 U.S.C. the applicant on-site or distributed to c. Date Filed: March 31, 2010. 207 authorizes licensing of government the power grid and sold directly to a d. Applicant: FPL Energy Maine owned inventions. Implementing local utility. Hydro LLC, Madison Paper Industries, regulations are contained in 37 CFR part Applicant Contact: Mr. Howard and Merimil Limited Partnership. 404. Rosenfeld, 10 Town Hill Road, Warren, e. Name of Project: Brassua Issued in Washington, DC, on April 7, Connecticut 06754, (860) 868–8087, Hydroelectric Project. 2010. [email protected]. f. Location: The existing project is Paul A. Gottlieb, located on the Moose River in Somerset FERC Contact: John Ramer, (202) 502– Assistant General Counsel for Technology, County, Maine. The project does not Transfer and Intellectual Property. 8969. affect federal lands. [FR Doc. 2010–8388 Filed 4–12–10; 8:45 am] Deadline for filing comments, motions g. Filed Pursuant to: Federal Power BILLING CODE 6450–01–P to intervene, competing applications Act, 16 U.S.C. 791(a)–825(r). (without notices of intent), or notices of h. Applicant Contact: Mr. Frank H. intent to file competing applications: 60 Dunlap, FPL Energy Maine Hydro, LLC, DEPARTMENT OF ENERGY days from the issuance of this notice. 26 Katherine Drive, Hallowell, Maine Comments, motions to intervene, 04347; Telephone (207) 629–1817. Federal Energy Regulatory notices of intent, and competing i. FERC Contact: John Costello, (202) Commission applications may be filed electronically 502–6119 or [email protected]. j. This application is not ready for via the Internet. See 18 CFR [Project No. 13685–000] environmental analysis at this time. 385.2001(a)(1)(iii) and the instructions Mr. Howard Rosenfeld; Notice of k. The Project Description: The on the Commission’s Web site under the existing Brassua Project includes: (1) A Preliminary Permit Application ‘‘e-Filing’’ link. If unable to be filed Accepted for Filing and Soliciting 1,789-foot-long dam consisting of: (a) electronically, documents may be paper- An earth dike 410 feet long with 100 Comments, Motions To Intervene, and filed. To paper-file, an original and eight Competing Applications feet of concrete core wall; (b) a concrete- copies should be mailed to: Kimberly D. faced earth dike 342.5 feet long; (c) a April 6, 2010. Bose, Secretary, Federal Energy concrete Ambursen dam 284 feet long On March 22, 2010, Mr. Howard Regulatory Commission, 888 First with a height of 52 feet above the stream Rosenfeld filed an application, pursuant Street, NE., Washington, DC 20426. For bed; (d) a 18.5-foot fishway (inactive); to section 4(f) of the Federal Power Act, more information on how to submit and (e) a 734-foot earth dike with a for a preliminary permit to study the these types of filings please go to the concrete core wall; (2) a 9,700-acre feasibility of the Warren Energy Commission’s Web site located at http:// reservoir (known as Brassua Lake) with Independence Hydroelectic Project www.ferc.gov/filing-comments.asp. a normal pool elevation 1,074.0 feet (Warren Project), to be located on More information about this project can (U.S.G.S. datum) and maximum Sucker Brook (a.k.a. Lake Waramaug be viewed or printed on the ‘‘eLibrary’’ drawdown of 31 feet, extending 7.75 Brook) in Litchfield County, link of Commission’s Web site at http:// miles upstream; (3) a reinforced- Connecticut. www.ferc.gov/docs-filing/elibrary.asp. concrete intake structure; (4) a 110-foot- Some of the features of the proposed Enter the docket number (P–13685) in long, 13-foot square penstock; (5) a 32- Warren Project would be new and the docket number field to access the foot-high, 32-foot-wide and 60-foot-long located on residential property owned document. For assistance, call toll-free powerhouse; (6) a 4.18–MW generating by the applicant, and some of the 1–866–208–3372. unit; (7) a 40-foot-wide, 15-foot-deep project works would include properties and 60-foot-long tailrace; (8) a owned by the Town of Warren, Kimberly D. Bose, substation; (9) a 0.5-mile-long, 34.5-kV Connecticut, such as an existing dam, Secretary. (kilovolt) transmission line; and (10) intake, and water conveyance [FR Doc. 2010–8353 Filed 4–12–10; 8:45 am] appurtenant facilities. The earth structures. The proposed project would BILLING CODE 6717–01–P sections of the dam are topped with
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33.5-inch-high wave barriers (Jersey through the start of spring freshnet the Commission’s Web site at http:// barriers). (normally mid-May) of each year. The www.ferc.gov using the ‘‘eLibrary’’ link. The Brassua Project is operated as a licensees are required to cease peaking Enter the docket number excluding the seasonal storage facility where water operation and resume normal operation last three digits in the docket number releases are determined by downstream in which flows through the project are field to access the document. For demands for hydroelectric generation in maintained constant on a daily basis assistance, contact FERC Online the Kennebec River and for flood from spring freshet through June 30th Support at control. Reservoir fluctuations follow an and from September 1st through [email protected] or toll- annual cycle under which reservoir November 5th of each year. free at 1–866–208–3676, or for TTY, levels are reduced during the fall and The current license requires the (202) 502–8659. A copy is also available winter to provide additional flows licensees to release the following for inspection and reproduction at the downstream as well as to make storage minimum flows and maintain the address in item (h) above. volume available for spring snow melt following target water levels to protect m. You may also register online at and runoff. After the spring refill, flow fish and aquatic habitat and to benefit http://www.ferc.gov/docs-filing/ is released for the Brassua reservoir to the reproductive efforts of the esubscription.asp to be notified via e- provide summer minimum instream landlocked salmon population in the mail of new filings and issuances flows as well as water for industrial and Moose River. All Minimum flow related to this or other pending projects. municipal uses. Specific project releases are maintained through the For assistance, contact FERC Online operation requirements are discussed turbine or deep gates and discharged in Support. below. the lower Moose River below the dam. n. Procedural Schedule: The current license allows the l. Locations of the Application: A The application will be processed licensees to operate the Brassua Project copy of the application is available for according to the following Hydro in peaking mode from July 1st through review at the Commission in the Public Licensing Schedule. Revisions to the August 31st and from November 6th Reference Room or may be viewed on schedule may be made as appropriate.
Milestone Target Date
Notice of Acceptance/Notice of Ready for Environmental Analysis (when FERC approved studies are complete) ...... May 30, 2010. Filing of recommendations, preliminary terms and conditions, and fishway prescriptions ...... July 29, 2010. Commission issues EA ...... January 10, 2011. Comments on EA ...... February 9, 2011. Modified terms and conditions ...... April 10, 2011.
o. Final amendments to the Docket Numbers: EG10–27–000 Power Cooperative, Inc; filing dated 3/ application must be filed with the Applicants: High Majestic Wind 31/2010. Commission no later than 30 days from Energy Center, LLC Filed Date: 04/01/2010 the issuance date of the notice of ready Description: Notice of Self- Accession Number: 20100401–0271 for environmental analysis. Certification of Exempt Wholesale Comment Date: 5 p.m. Eastern Time Generator Status of High Majestic Wind Kimberly D. Bose, on Thursday, April 22, 2010 Energy Center, LLC. Docket Numbers: ER10–1014–000 Secretary. Filed Date: 04/06/2010 Applicants: Southwest Power Pool, [FR Doc. 2010–8354 Filed 4–12–10; 8:45 am] Accession Number: 20100406–5130 Inc. BILLING CODE 6717–01–P Comment Date: 5 p.m. Eastern Time on Tuesday, April 27, 2010 Description: Southwest Power Pool, Inc submits Third Revised Sheet 1027 et Docket Numbers: EG10–28–000 DEPARTMENT OF ENERGY al. to FERC Electric Tariff, Fifth Revised Applicants: Wessington Wind Energy Volume 1 to be effective 6/11/10. Federal Energy Regulatory Center, LLC Filed Date: 04/05/2010 Description: Notice of Self- Commission Accession Number: 20100405–0224 Certification of Exempt Wholesale Comment Date: 5 p.m. Eastern Time Generator Status of Wessington Wind Combined Notice of Filings #1 on Monday, April 26, 2010 Energy Center, LLC. April 6, 2010. Filed Date: 04/06/2010 Docket Numbers: ER10–1015–000 Take notice that the Commission Accession Number: 20100406–5138 Applicants: California Independent received the following exempt Comment Date: 5 p.m. Eastern Time System Operator Corporation wholesale generator filings: on Tuesday, April 27, 2010 Description: The California Docket Numbers: EG10–26–000 Take notice that the Commission Independent System Operator Applicants: Butler Ridge Wind Energy received the following electric rate Corporation submits a Dynamic Center, LLC filings: Scheduling Host Balancing Authority Description: Notice of Self- Docket Numbers: ER10–999–000; Operating Agreement with Gila River Certification of Exempt Wholesale ER10–998–000; ER10–1000–000; ER10– Power, LP. Generator Status of Butler Ridge Wind 1001–000 Filed Date: 04/05/2010 Energy Center, LLC. Applicants: Westar Energy, Inc. Accession Number: 20100406–0204 Filed Date: 04/06/2010 Description: Westar Energy, Inc Comment Date: 5 p.m. Eastern Time Accession Number: 20100406–5127 requests approval of the issuance of on Monday, April 26, 2010 Comment Date: 5 p.m. Eastern Time refunds resulting from a correction Docket Numbers: ER10–1017–000 on Tuesday, April 27, 2010 made to FERC Form 1 to Kansas Electric Applicants: Exelon Energy Company
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Description: Exelon Energy Company of the intervention or protest to the intervention or motion to intervene, as submits its Baseline tariff filing, to be Federal Energy Regulatory Commission, appropriate. The Respondent’s answer effective 4/6/2010. 888 First St., NE., Washington, DC and all interventions, or protests must Filed Date: 04/06/2010 20426. be filed on or before the comment date. Accession Number: 20100406–5071 The filings in the above proceedings The Respondent’s answer, motions to Comment Date: 5 p.m. Eastern Time are accessible in the Commission’s intervene, and protests must be served on Tuesday, April 27, 2010 eLibrary system by clicking on the on the Complainants. Docket Numbers: ER10–1020–000 appropriate link in the above list. They The Commission encourages Applicants: Exelon Framingham, LLC are also available for review in the electronic submission of protests and Description: Exelon Framingham, LLC Commission’s Public Reference Room in interventions in lieu of paper using the submits its Baseline tariff filing, to be Washington, DC. There is an ‘‘eFiling’’ link at http://www.ferc.gov. effective 4/6/2010. eSubscription link on the Web site that Persons unable to file electronically Filed Date: 04/06/2010 enables subscribers to receive e-mail should submit an original and 14 copies Accession Number: 20100406–5097 notification when a document is added of the protest or intervention to the Comment Date: 5 p.m. Eastern Time to a subscribed dockets(s). For Federal Energy Regulatory Commission, on Tuesday, April 27, 2010 assistance with any FERC Online 888 First Street, NE., Washington, DC Take notice that the Commission service, please e-mail 20426. received the following electric securities [email protected] or call This filing is accessible on-line at filings: (866) 208–3676 (toll free). For TTY, call http://www.ferc.gov, using the Docket Numbers: ES10–19–002 (202) 502–8659. ‘‘eLibrary’’ link and is available for Applicants: KCP&L Greater Missouri review in the Commission’s Public Nathaniel J. Davis, Sr., Reference Room in Washington, DC. Operations Company Deputy Secretary. Description: Application to Amend There is an ‘‘eSubscription’’ link on the [FR Doc. 2010–8348 Filed 4–12–10; 8:45 am] Authorization to Issue Short-Term Debt Web site that enables subscribers to Under Section 204 of the Federal Power BILLING CODE 6717–01–P receive e-mail notification when a Act and Request for Expedited Decision. document is added to a subscribed docket(s). For assistance with any FERC Filed Date: 04/06/2010 DEPARTMENT OF ENERGY Accession Number: 20100406–5072 Online service, please e-mail Comment Date: 5 p.m. Eastern Time Federal Energy Regulatory [email protected], or call on Friday, April 16, 2010 Commission (866) 208–3676 (toll free). For TTY, call Any person desiring to intervene or to (202) 502–8659. [ Docket No. RP10–517–000] protest in any of the above proceedings Comment Date: 5 p.m. Eastern Time on April 15, 2010. must file in accordance with Rules 211 Wisconsin Electric Power Company, and 214 of the Commission’s Rules of Wisconsin Gas LLC, Wisconsin Public Kimberly D. Bose, Practice and Procedure (18 CFR 385.211 Service Corporation: Complainants; Secretary. and 385.214) on or before 5 p.m. Eastern ANR Pipeline Company: Respondent; [FR Doc. 2010–8351 Filed 4–12–10; 8:45 am] time on the specified comment date. It Notice of Complaint BILLING CODE 6717–01–P is not necessary to separately intervene again in a subdocket related to a April 6, 2010. compliance filing if you have previously Take notice that on March 26, 2010, DEPARTMENT OF ENERGY intervened in the same docket. Protests pursuant to section 5 of the Natural Gas will be considered by the Commission Act, 15 U.S.C. 717d (2006) and Rule 206 Federal Energy Regulatory in determining the appropriate action to of the Federal Energy Regulatory Commission be taken, but will not serve to make Commission’s Rules of Practice and [Docket No. EL10–58–000] protestants parties to the proceeding. Procedure, 18 CFR 385.206 (2009), Anyone filing a motion to intervene or Wisconsin Electric Power Company, PSEG Power Connecticut LLC, protest must serve a copy of that Wisconsin Gas LLC, and Wisconsin Complainant v. ISO New England Inc., document on the Applicant. In reference Public Service Corporation Respondent; Notice of Complaint to filings initiating a new proceeding, (Complainants) filed a formal complaint interventions or protests submitted on against ANR Pipeline Company April 6, 2010. or before the comment deadline need (Respondent) alleging that Respondent Take notice that on April 2, 2010, not be served on persons other than the has violated Section 36.2(A) of its tariff pursuant to section 206 of the Federal Applicant. relating to obligations at Respondent’s Energy Regulatory Commission’s The Commission encourages Marshfield recipient point. (Commission) Rules of Practice and electronic submission of protests and The Complainant certifies that a copy Procedure, 18 CFR 385.206 (2009) and interventions in lieu of paper, using the of the complaint has been served on the section 206 of the Federal Power Act, 16 FERC Online links at http:// contacts for the Respondent. U.S.C. 824(e) (2000), PSEG Power www.ferc.gov. To facilitate electronic Any person desiring to intervene or to Connecticut LLC (Complainant) filed a service, persons with Internet access protest this filing must file in formal complaint against ISO New who will eFile a document and/or be accordance with Rules 211 and 214 of England Inc. (Respondent) challenging listed as a contact for an intervenor the Commission’s Rules of Practice and the justness and reasonableness of the must create and validate an Procedure (18 CFR 385.211, 385.214). Respondent’s actions to limit the eRegistration account using the Protests will be considered by the Capacity Network Resource Capability eRegistration link. Select the eFiling Commission in determining the ratings of capacity resources owned by link to log on and submit the appropriate action to be taken, but will the Complainant. intervention or protests. not serve to make protestants parties to The Complainant certifies that copies Persons unable to file electronically the proceeding. Any person wishing to of the complaint were served on the should submit an original and 14 copies become a party must file a notice of contacts for the Respondent as listed on
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the Commission’s List of Corporate environmental assessment (EA) for the alternatives, and measures to avoid or Officials. East Cheyenne Gas Storage Project lessen environmental impacts. The more Any person desiring to intervene or to proposed by East Cheyenne Gas Storage, specific your comments, the more useful protest this filing must file in LLC (East Cheyenne) in the above they will be. To ensure that your accordance with Rules 211 and 214 of referenced docket. East Cheyenne comments are properly recorded and the Commission’s Rules of Practice and requests authorization to convert two considered prior to a Commission Procedure (18 CFR 385.211, 385.214). substantially depleted oil production decision on the proposal, it is important Protests will be considered by the reservoirs in Logan County, Colorado to that the FERC receives your comments Commission in determining the natural gas storage. The purpose of the in Washington, DC on or before May 6, appropriate action to be taken, but will project is to provide natural gas storage 2010. not serve to make protestants parties to capacity to interstate shippers of natural For your convenience, there are three the proceeding. Any person wishing to gas. methods you can use to submit your become a party must file a notice of The EA assesses the potential comments to the Commission. In all intervention or motion to intervene, as environmental effects of the instances please reference the project appropriate. The Respondent’s answer construction and operation of the East docket number (CP10–34–000) with and all interventions, or protests must Cheyenne Gas Storage Project in your submission. The Commission be filed on or before the comment date. accordance with the requirements of the encourages electronic filing of The Respondent’s answer, motions to National Environmental Policy Act of comments and has dedicated eFiling intervene, and protests must be served 1969. The FERC staff concludes that expert staff available to assist you at on the Complainants. approval of the proposed project, with (202) 502–8258 or [email protected]. The Commission encourages appropriate mitigating measures, would (1) You may file your comments electronic submission of protests and not constitute a major federal action electronically by using the Quick interventions in lieu of paper using the significantly affecting the quality of the Comment feature, which is located on ‘‘eFiling’’ link at http://www.ferc.gov. human environment. the Commission’s Web site at http:// Persons unable to file electronically The proposed Project includes the www.ferc.gov under the link to should submit an original and 14 copies following facilities: • Documents and Filings. A Quick of the protest or intervention to the Ten gas injection/withdrawal (I/W) Comment is an easy method for Federal Energy Regulatory Commission, wells to be drilled from six new well interested persons to submit text-only 888 First Street, NE., Washington, DC pads; • comments on a project; 20426. A Process Facility with compression facilities for I/W of natural (2) You may file your comments This filing is accessible on-line at electronically by using the eFiling http://www.ferc.gov, using the gas; • feature, which is located on the ‘‘ ’’ Approximately 66,000 feet of 4- to eLibrary link and is available for Commission’s Web site at http:// review in the Commission’s Public 24-inch-diameter pipelines connecting the wellheads to the Process Facility www.ferc.gov under the link to Reference Room in Washington, DC. Documents and Filings. eFiling involves ‘‘ ’’ area; There is an eSubscription link on the • preparing your submission in the same Web site that enables subscribers to Two header pipelines (16-inch and 24-inch-diameter) to be constructed manner as you would if filing on paper, receive e-mail notification when a and then saving the file on your document is added to a subscribed within a single corridor interconnecting with the Rockies Express Pipeline LLC computer’s hard drive. You will attach docket(s). For assistance with any FERC that file as your submission. New Online service, please e-mail and Trailblazer Pipeline Company LLC pipeline systems; eFiling users must first create an [email protected], or call • account by clicking on ‘‘Sign up’’ or (866) 208–3676 (toll free). For TTY, call Metering facilities; and • Temporary compression and ‘‘eRegister.’’ You will be asked to select (202) 502–8659. ancillary facilities necessary to perform the type of filing you are making. A Comment Date: 5 p.m. Eastern Time I/W activities. comment on a particular project is on April 22, 2010. The EA has been placed in the public considered a ‘‘Comment on a Filing’’; or Kimberly D. Bose, files of the FERC and is available for (3) You may file a paper copy of your Secretary. public viewing on the FERC’s Web site comments at the following address: [FR Doc. 2010–8352 Filed 4–12–10; 8:45 am] at http://www.ferc.gov using the Kimberly D. Bose, Secretary, Federal BILLING CODE 6717–01–P eLibrary link. A limited number of Energy Regulatory Commission, 888 copies of the EA are available for First Street, NE., Room 1A, Washington, distribution and public inspection at: DC 20426. DEPARTMENT OF ENERGY Federal Energy Regulatory Commission, Although your comments will be Public Reference Room, 888 First Street, considered by the Commission, simply Federal Energy Regulatory NE., Room 2A, Washington, DC 20426, filing comments will not serve to make Commission (202) 502–8371. the commentor a party to the [Docket No. CP10–34–000] Copies of the EA have been mailed to proceeding. Any person seeking to federal, state, and local government become a party to the proceeding must East Cheyenne Gas Storage, LLC; representatives and agencies; elected file a motion to intervene pursuant to Notice of Availability of the officials; Native American tribes; Rule 214 of the Commission’s Rules of Environmental Assessment for the potentially affected landowners and Practice and Procedures (18 CFR Proposed East Cheyenne Gas Storage other interested individuals and groups; 385.214).1 Only intervenors have the Project newspapers and libraries in the project right to seek rehearing of the area; and parties to this proceeding. Commission’s decision. April 6, 2010. Any person wishing to comment on The staff of the Federal Energy the EA may do so. Your comments 1 Interventions may also be filed electronically via Regulatory Commission (FERC or should focus on the potential the Internet in lieu of paper. See the previous Commission) has prepared an environmental effects, reasonable discussion on filing comments electronically.
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Affected landowners and parties with collection. The ICR which is abstracted key in the docket ID number identified environmental concerns may be granted below describes the nature of the above. Please note that EPA’s policy is intervenor status upon showing good collection and the estimated burden and that public comments, whether cause by stating that they have a clear cost. submitted electronically or in paper, and direct interest in this proceeding DATES: Additional comments may be will be made available for public which would not be adequately submitted on or before May 13, 2010. viewing at http://www.regulations.gov, represented by any other parties. You do ADDRESSES: Submit your comments, as EPA receives them and without not need intervenor status to have your referencing docket ID number EPA–HQ– change, unless the comment contains comments considered. OECA–2009–0525, to (1) EPA online copyrighted material, Confidential Additional information about the using http://www.regulations.gov (our Business Information (CBI), or other project is available from the preferred method), or by e-mail to information whose public disclosure is Commission’s Office of External Affairs, [email protected], or by mail to: EPA restricted by statute. For further at (866) 208–FERC or on the FERC Web Docket Center (EPA/DC), Environmental information about the electronic docket, site (http://www.ferc.gov) using the Protection Agency, Enforcement and go to http://www.regulations.gov. eLibrary link. Click on the eLibrary link, Compliance Docket and Information Title: NSPS for Nitric Acid Plants click on ‘‘General Search’’ and enter the Center, mail code 28221T, 1200 (Renewal). docket number excluding the last three Pennsylvania Avenue, NW., ICR Numbers: EPA ICR Number digits in the Docket Number field (i.e., Washington, DC 20460, and (2) OMB at: 1056.10, OMB Control Number 2060– CP10–34). Be sure you have selected an Office of Information and Regulatory 0019. ICR Status: This ICR is scheduled to appropriate date range. For assistance, Affairs, Office of Management and expire on May 31, 2010. Under OMB please contact FERC Online Support at Budget (OMB), Attention: Desk Officer regulations, the Agency may continue to [email protected] or toll free for EPA, 725 17th Street, NW., conduct or sponsor the collection of at (866) 208–3676, or for TTY, contact Washington, DC 20503. information while this submission is (202) 502–8659. The eLibrary link also FOR FURTHER INFORMATION CONTACT: provides access to the texts of formal pending at OMB. An Agency may not Robert C. Marshall, Jr., Office of conduct or sponsor, and a person is not documents issued by the Commission, Compliance, Mail Code: 2223A, such as orders, notices, and required to respond to, a collection of Environmental Protection Agency, 1200 information unless it displays a rulemakings. Pennsylvania Avenue, NW., In addition, the Commission offers a currently valid OMB control number. Washington, DC 20460; telephone The OMB control numbers for EPA’s free service called eSubscription which number: (202) 564–7021; fax number: allows you to keep track of all formal regulations in title 40 of the CFR, after (202) 564–0050; e-mail address: appearing in the Federal Register when issuances and submittals in specific [email protected]. dockets. This can reduce the amount of approved, are listed in 40 CFR part 9, SUPPLEMENTARY INFORMATION: EPA has time you spend researching proceedings and displayed either by publication in submitted the following ICR to OMB for by automatically providing you with the Federal Register or by other review and approval according to the appropriate means, such as on the notification of these filings, document procedures prescribed in 5 CFR 1320.12. related collection instrument or form, if summaries, and direct links to the On July 30, 2009 (74 FR 38004), EPA applicable. The display of OMB control documents. Go to http://www.ferc.gov/ sought comments on this ICR pursuant numbers in certain EPA regulations is esubscribenow.htm. to 5 CFR 1320.8(d). EPA received no consolidated in 40 CFR part 9. Kimberly D. Bose, comments. Any additional comments on Abstract: 40 CFR part 60, subpart G, Secretary. this ICR should be submitted to EPA applies to owners and operators of nitric [FR Doc. 2010–8355 Filed 4–12–10; 8:45 am] and OMB within 30 days of this notice. acid plants which commenced EPA has established a public docket BILLING CODE 6717–01–P construction, modification or for this ICR under docket ID number reconstruction after August 17, 1971. EPA–HQ–OECA–2009–0525, which is Owners/operators are required to make available for public viewing online at the following one-time-only reports; ENVIRONMENTAL PROTECTION http://www.regulations.gov, in person notification of the dates of construction AGENCY viewing at the Enforcement and or reconstruction; notification of actual [EPA–HQ–OECA–2009–0525; FRL–9136–8; Compliance Docket in the EPA Docket dates of startup, notification of any EPA ICR Number 1056.10; OMB Control Center (EPA/DC), EPA West, Room physical or operational change to an Number 2060–0019] 3334, 1301 Constitution Avenue, NW., existing facility which may increase the Washington, DC. The EPA Docket pollutant emission rate; notification of Agency Information Collection Center Public Reading Room is open demonstration of the continuous Activities; Submission to OMB for from 8:30 a.m. to 4:30 p.m., Monday monitoring system (CMS); notification Review and Approval; Comment through Friday, excluding legal of the date of the initial performance Request; NSPS for Nitric Acid Plants holidays. The telephone number for the test; and the results of the initial AGENCY: Environmental Protection Reading Room is (202) 566–1744, and performance test. Semiannual reports Agency (EPA). the telephone number for the are also required. These notifications ACTION: Notice. Enforcement and Compliance Docket is reports and records are required in (202) 566–1752. general of all sources subject to New SUMMARY: In compliance with the Use EPA’s electronic docket and Source Performance Standards (NSPS). Paperwork Reduction Act (44 U.S.C. comment system at http:// Burden Statement: The annual public 3501 et seq.), this document announces www.regulations.gov, to submit or view reporting and recordkeeping burden for that an Information Collection Request public comments, access the index this collection of information is (ICR) has been forwarded to the Office listing of the contents of the docket, and estimated to average 25 hours per of Management and Budget (OMB) for to access those documents in the docket response. Burden means the total time, review and approval. This is a request that are available electronically. Once in effort, or financial resources expended to renew an existing approved the system, select ‘‘docket search,’’ then by persons to generate, maintain, retain,
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or disclose or provide information to or ACTION: Notification of Public independent advice to the for a Federal agency. This includes the Teleconference and Public Comment. Administrator on areas that may time needed to review instructions; include, among other things, ‘‘advice develop, acquire, install, and utilize SUMMARY: Pursuant to the Federal about broad, cross-cutting issues related technology and systems for the purposes Advisory Committee Act (FACA), Public to environmental justice, including of collecting, validating, and verifying Law 92–463, the U.S. Environmental environment-related strategic, scientific, information, processing and Protection Agency (EPA) hereby technological, regulatory and economic maintaining information, and disclosing provides notice that the National issues related to environmental justice. and providing information; adjust the Environmental Justice Advisory Council The April 28, 2010, teleconference call existing ways to comply with any (NEJAC) will host a public shall be used to receive comments, previously applicable instructions and teleconference call on, Wednesday April discuss and provide recommendations requirements which have subsequently 28, 2010, starting at 2 p.m. Eastern primarily regarding updates on EPA’s changed; train personnel to be able to Time. The primary topics of discussion response to the NEJAC’s Goods respond to a collection of information; will be updates on EPA’s response to Movement Report; and reports from the search data sources; complete and the NEJAC’s Goods Movement Report; NEJAC liaisons to the Tribal Operations review the collection of information; and reports from the NEJAC liaisons to Commission and the Children’s Health and transmit or otherwise disclose the the Tribal Operations Commission and School Siting Task Force. information. the Children’s Health Protection A. Public Comment: Members of the Respondents/Affected Entities: Advisory Committee School Siting Task public who wish to participate on the Entities potentially affected by this Group. This NEJAC National Public call or to provide public comment must action are the owners or operators of Teleconference meeting is open to the pre-register by 11 a.m. Eastern Time nitric acid plants. public. There will be a public comment Tuesday, April 27, 2010. Individuals or Estimated Number of Respondents: period from 3:30 p.m. to 4 p.m. Eastern groups making remarks during the 24. Time. Members of the public are public comment period will be limited Frequency of Response: Initially, encouraged to provide comments to a total time of five minutes. Only one occasionally, and semiannually. relevant to the topics of this call. representative of a community, Estimated Total Annual Hour Burden: For additional information about organization or group will be allowed to 1,291. registering to attend the call or to speak. Written comments can also be Estimated Total Annual Cost: provide public comment during the call, submitted for the record. The suggested SUPPLEMENTARY INFORMATION. $2,549,639, which includes $81,639 in please see format for individuals providing public labor costs, $68,000 in capital/startup Due to a limited number of telephone comments is as follows: Name of costs, and $2,400,000 in operation and lines, attendance will be on a first-come Speaker, Name of Organization/ maintenance (O&M) costs. basis. There is no fee to attend, but pre- Community, Address/Telephone/E- Changes in the Estimates: There is no registration is required. mail, Description of Concern and its change in the labor cost to the DATES: The NEJAC teleconference call Relationship to a Specific Policy respondents in this ICR compared to the on April 28 2010, will begin promptly Issue(s), and Recommendations or previous ICR. This is due to two at 2 p.m. Eastern Time. desired outcome. Written comments considerations. First, the regulations FOR FURTHER INFORMATION CONTACT: To received by 5 p.m. Eastern Time have not changed over the past three register online, visit the Web site above. Monday, April 26, 2010, will be years and are not anticipated to change If unable to register online, requests for included in the materials distributed to over the next three years. Secondly, the advance-registration forms should be the members of the NEJAC. Written growth rate for the industry is very low, sent to EPA’s support contractor, APEX comments received after that time will negative or non-existent. Therefore, the Direct Inc., by phone or fax at (877) be provided to the NEJAC as logistics cost figures in the previous ICR reflect 773–0779, or by e-mail at Meetings@ allow. All written comments should be the current burden to the respondents AlwaysPursuingExcellence.com. Please sent EPA’s support contractor, APEX and are reiterated in this ICR. Note that provide your name, organization, and Direct, Inc., listed in the CONTACT there is an increase of one hour in the telephone number for follow-up as section above. total labor hours to the respondents due necessary. Non-English speaking B. Information about Services for to rounding-up. attendees wishing to arrange for a Individuals with Disabilities: For foreign language interpreter also may information about access or services for Dated: April 7, 2010. make appropriate arrangements using individuals with disabilities, please John Moses, these numbers. contact EPA’s support contractor, APEX Director, Collection Strategies Division. Questions or correspondences Direct, Inc., listed in the CONTACT [FR Doc. 2010–8402 Filed 4–12–10; 8:45 am] concerning the teleconference meeting section above. To request special BILLING CODE 6560–50–P should be directed to Mr. Aaron Bell, accommodations for a disability, please U.S. Environmental Protection Agency, contact EPA’s support contractor, APEX at 1200 Pennsylvania Avenue, NW., Direct, Inc., at least 10 days prior to the ENVIRONMENTAL PROTECTION (MC2201A), Washington, DC 20460; by call, to give EPA sufficient time to AGENCY telephone at (202) 564–1044, via e-mail process your request. All requests at [email protected]; or by FAX at should be sent to the address, e-mail, or [FRL–9136–1] (202) 564–1624. Additional information fax number listed in the CONTACT about the meeting is available on the section above. National Environmental Justice following Web site: http://www.epa.gov/ Dated: April 7, 2010. Advisory Council; Notification of environmentaljustice/nejac/ Victoria Robinson, Public Teleconference and Public meetings.html. Comment Designated Federal Officer, National SUPPLEMENTARY INFORMATION: The Environmental Justice Advisory Council. AGENCY: Environmental Protection Charter of the NEJAC states that the [FR Doc. 2010–8399 Filed 4–12–10; 8:45 am] Agency. advisory committee shall provide BILLING CODE 6560–50–P
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EQUAL EMPLOYMENT OPPORTUNITY have been required to submit EEO–1 DC 20507; (202) 663–4958 (voice) or COMMISSION reports annually since 1966. The (202) 663–7063 (TTY). individual reports are confidential. SUPPLEMENTARY INFORMATION: Agency Information Collection EEO–1 data is used by EEOC to Elementary and secondary public school Activities: Existing Collection; investigate charges of employment systems and districts have been required Emergency Extension discrimination against employers in to submit EEO–5 reports to EEOC since private industry and to provide AGENCY: Equal Employment 1974 (biennially in even-numbered information about the employment Opportunity Commission. years since 1982). Since 1996, each status of minorities and women. The public school district or system has ACTION: Notice of Information data is shared with the Office of Federal Collection—Emergency Extension submitted all of the district data on a Contract Compliance Programs single form, EEOC Form 168A. The Without Change: Employer Information (OFCCP), U.S. Department of Labor, and Report (EEO–1). individual school form, EEOC Form several other Federal agencies. Pursuant 168B, was eliminated in 1996, reducing SUMMARY: In accordance with the to section 709(d) of Title VII of the Civil the respondent burden and cost. Paperwork Reduction Act, the Equal Rights Act of 1964, as amended, Overview of Information Collection Employment Opportunity Commission EEO–1 data is also shared with State (EEOC or Commission) announces that and local Fair Employment Practices Collection Title: Elementary- it submitted to the Office of Agencies (FEPAs). Secondary Staff Information Report Management and Budget (OMB) a Burden Statement: The estimated (EEO–5). number of respondents included in the request for a 90-day emergency OMB–Number: 3046–0003. annual EEO–1 survey is 45,000 private extension of the Employer Information Frequency of Report: Biennial. Report (EEO–1) to be effective after the employers. The estimated number of Type of Respondent: Certain public current April 30, 2010 expiration date. establishment-based responses per reporting company is between three and elementary and secondary school FOR FURTHER INFORMATION CONTACT: districts. Ronald Edwards, Director, Program four EEO–1 reports annually. The Description of Affected Public: Certain Research and Surveys Division, 131 M annual number of responses is Public elementary and secondary school Street, NE., Room 4SW30F, Washington, approximately 170,000. The form is districts. DC 20507; (202) 663–4958 (voice) or estimated to impose 599,000 burden (202) 663–7063 (TTY). hours annually. In order to help reduce Number of Responses: 7,155. survey burden, respondents are SUPPLEMENTARY INFORMATION: The EEOC Reporting Hours: 10,000. encouraged to report data electronically Cost to the Respondents: $266,000. has collected information from certain whenever possible. private employers on the EEO–1 Report Federal Cost: $160,000. form since 1966. Dated: March 19, 2010. Number of Forms: 1. Stuart J. Ishimaru, Form Number: EEOC Form 168A. Overview of Information Collection Acting Chairman for the Commission. Collection Title: Employer Abstract: Section 709 (c) of Title VII [FR Doc. 2010–8322 Filed 4–12–10; 8:45 am] of the Civil Rights Act of 1964, as Information Report (EEO–1). BILLING CODE 6570–01–P OMB Number: 3046–0007. amended, 42 U.S.C. 2000e–8(c), requires Frequency of Report: Annual. employers to make and keep records relevant to a determination of whether Type of Respondent: Private EQUAL EMPLOYMENT OPPORTUNITY unlawful employment practices have employers with 100 or more employees COMMISSION and certain Federal Government been or are being committed, to preserve contractors and first-tier subcontractors Agency Information Collection such records and to produce reports as with 50 or more employees. Activities: Existing Collection; the Commission prescribes by Description of Affected Public: Private Emergency Extension regulation or order. Accordingly, the employers with 100 or more employees EEOC issued regulations prescribing the and certain Federal Government AGENCY: Equal Employment reporting requirements for elementary contractors and first-tier subcontractors Opportunity Commission. and secondary public school districts. with 50 or more employees. ACTION: Notice of Information The EEOC uses EEO–5 data to Reporting Hours: 599,000. Collection—Emergency Extension investigate charges of employment Respondent Cost: $11.4 million. Without Change: Elementary-Secondary discrimination against elementary and Federal Cost: $2.1 million. Staff Information Report (EEO–5). secondary public school districts. The Number of Forms: 1. data also are used for research. The data Abstract: Section 709(c) of Title VII of SUMMARY: In accordance with the are shared with the Department of the Civil Rights Act of 1964, as Paperwork Reduction Act, the Equal Education (Office for Civil Rights and amended, 42 U.S.C. 2000e–8(c), requires Employment Opportunity Commission the National Center for Education employers to make and keep records (EEOC or Commission) announces that Statistics) and the Department of Justice. relevant to a determination of whether it submitted to the Office of Pursuant to Section 709(d) of Title VII unlawful employment practices have Management and Budget (OMB) a of the Civil Rights Act of 1964, as been or are being committed, to preserve request for a 90-day emergency amended, EEO–5 data also are shared such records and to produce reports as extension of the Elementary-Secondary with State and Local Fair Employment the Commission prescribes by Staff Information Report (EEO–5) to be Practices Agencies (FEPAs). regulation or order. Accordingly, the effective after the current April 30, 2010 Burden Statement: The estimated EEOC issued regulations prescribing the expiration date. number of respondents included in the EEO–1 reporting requirement. FOR FURTHER INFORMATION CONTACT: biennial EEO–5 survey is 7,155 public Employers in the private sector with 100 Ronald Edwards, Director, Program elementary and secondary school or more employees and some Federal Research and Surveys Division, 131 M districts. The form is estimated to contractors with 50 or more employees Street, NE., Room 4SW30F, Washington, impose 10,000 burden hours biennially.
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Dated: March 19, 2010. referral local unions with 100 or more elementary and secondary public school Stuart J. Ishimaru, members to submit EEO–3 reports. The districts. Acting Chairman for the Commission. individual reports are confidential. The Number of Responses: 13,456. [FR Doc. 2010–8325 Filed 4–12–10; 8:45 am] EEOC uses EEO–3 data to investigate Reporting Hours: 44,719. BILLING CODE 6750–01–P charges of discrimination and for Cost to Respondents: $1,045,000. research. Number of Forms: 1. Burden Statement: The estimated Form Number: EEOC Form 164. EQUAL EMPLOYMENT OPPORTUNITY number of respondents included in the Federal Cost: $187,500. COMMISSION biennial EEO–3 survey is 1,399 referral Abstract: Section 709(c) of Title VII of unions. The form is estimated to impose the Civil Rights Act of 1964, as Agency Information Collection 4,500 burden hours biennially. In order amended, 42 U.S.C. 2000e–8(c), requires Activities: Existing Collection; to help reduce survey burden, employers to make and keep records Emergency Extension respondents are encouraged to report relevant to a determination of whether data electronically whenever possible. unlawful employment practices have AGENCY: Equal Employment been or are being committed, to preserve Opportunity Commission. Dated: March 19, 2010. Stuart J. Ishimaru, such records and to produce reports as ACTION: Notice of information the Commission prescribes by Acting Chairman for the Commission. collection—Emergency extension regulation or order. Accordingly, the without change: Local Union Report [FR Doc. 2010–8328 Filed 4–12–10; 8:45 am] EEOC issued regulations prescribing the (EEO–3). BILLING CODE 6570–01–P reporting requirements for State and local governments. State and local SUMMARY: In accordance with the Paperwork Reduction Act, the Equal EQUAL EMPLOYMENT OPPORTUNITY governments with 100 or more Employment Opportunity Commission COMMISSION employees have been required to submit (EEOC or Commission) announces that EEO–4 reports since 1974 (biennially in it submitted to the Office of Agency Information Collection odd-numbered years since 1993). The Management and Budget (OMB) a Activities: Existing Collection; individual reports are confidential. request for a 90-day emergency Emergency Extension EEO–4 data are used by the EEOC to extension of the Local Union Report investigate charges of discrimination AGENCY: Equal Employment against State and local governments and (EEO–3), to be effective after the current Opportunity Commission. April 30, 2010 expiration date. to provide information on the ACTION: Notice of information employment status of minorities and FOR FURTHER INFORMATION CONTACT: collection—Emergency extension women. The data are shared with Ronald Edwards, Director, Program without change: State and Local several other Federal agencies. Pursuant Research and Surveys Division, 131 M Government Information Report (EEO– to section 709(d) of Title VII of the Civil Street, NE., Room 4SW30F, Washington, 4). Rights Act of 1964, U.S.C. 2000e–8(d), DC 20507; (202) 663–4958 (voice) or as amended, EEO–4 data is shared with SUMMARY: (202) 663–7063 (TTY). In accordance with the State and Local Fair Employment SUPPLEMENTARY INFORMATION: The EEOC Paperwork Reduction Act, the Equal Practices Agencies (FEPAs). Aggregated has collected information from local Employment Opportunity Commission data are also used by researchers and unions on the EEO–3 form since 1966 (EEOC or Commission) announces that the general public. (biennially since 1985). it submitted to the Office of Burden Statement: The estimated Management and Budget (OMB) a Overview of Information Collection number of respondents included in the request for a 90-day emergency EEO–4 survey is 9,000 State and local Collection Title: Local Union Report extension of the State and Local governments. These 9,000 jurisdictions (EEO–3). Government Information Report (EEO– file about 13,456 reports due to the OMB Number: 3046–0006. 4), to be effective after the current April requirement for some to file separate Frequency of Report: Biennial. 30, 2010 expiration date. reports by function. The form is Type of Respondent: Referral local FOR FURTHER INFORMATION CONTACT: estimated to impose 44,719 burden unions with 100 or more members. Ronald Edwards, Director, Program hours biennially. Description of Affected Public: Research and Surveys Division, 131 M Referral local unions and independent Street, NE., Room 4SW30F, Washington, Dated: March 19, 2010. or unaffiliated referral unions and DC 20507; (202) 663–4958 (voice) or Stuart J. Ishimaru, similar labor organizations. (202) 663–7063 (TTY). Acting Chairman for the Commission. Responses: 1,399. SUPPLEMENTARY INFORMATION: The EEOC [FR Doc. 2010–8327 Filed 4–12–10; 8:45 am] Reporting Hours: 4,500 (including has collected information from State BILLING CODE 6570–01–P recordkeeping). and local governments with 100 or more Cost to Respondents: $85,000. full-time employees since 1974. Federal Cost: $60,000. FEDERAL COMMUNICATIONS Overview of Information Collection Number of Forms: 1. COMMISSION Form Number: EEOC Form 274. Collection Title: State and Local Abstract: Section 709(c) of Title VII of Government Information Report (EEO– Notice of Public Information Collection the Civil Rights Act of 1964, as 4). Being Reviewed by the Federal amended, 42 U.S.C. 2000e–8(c), requires OMB Number: 3046–0008. Communications Commission, labor organizations to make and keep Frequency of Report: Biennial. Comments Requested records relevant to a determination of Type of Respondent: State and local whether unlawful employment practices government jurisdictions with 100 or April 6, 2010. have been or are being committed and more employees. SUMMARY: The Federal Communications to produce reports from the data. The Description of Affected Public: State Commission, as part of its continuing EEOC issued regulations requiring and local governments excluding effort to reduce paperwork burden
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invites the general public and other Number of Respondents and FEDERAL DEPOSIT INSURANCE Federal agencies to take this Responses: 500 respondents and 12,250 CORPORATION opportunity to comment on the responses. following information collection, as Estimated time per response: 0.0003 Sunshine Act; Notice of a Matter To Be Deferred From the Agenda for required by the Paperwork Reduction hours—52 hours. Act (PRA) of 1995, 44 U.S.C. 3501–3520. Consideration at an Agency Meeting Obligation to Respond: Required to Comments are requested concerning: (a) obtain or retain benefits. The statutory Pursuant to the provisions of the whether the proposed collection of authority for this information collection ‘‘Government in the Sunshine Act’’ (5 information is necessary for the proper is contained in Sections 154(i), 307, 308, U.S.C. 552b), notice is hereby given that performance of the functions of the 309 and 319 of the Communications Act the following matter will be deferred Commission, including whether the of 1934, as amended. from the ‘‘Discussion Agenda’’ at the information shall have practical utility; open meeting of the Board of Directors Total annual burden: 234,621 hours. (b) the accuracy of the Commission’s of the Federal Deposit Insurance burden estimate; (c) ways to enhance Total annual costs: $1,995,000. Corporation scheduled to be held at 10 the quality, utility, and clarity of the Privacy Impact Assessment: No a.m. on Tuesday, April 13, 2010, in the information collected; (d) ways to impact(s). Board Room on the sixth floor of the minimize the burden of the collection of Confidentiality: There is no need for FDIC Building located at 550—17th information on the respondents, Street, NW., Washington, DC: including the use of automated confidentiality with this collection of information. Memorandum re: Notice of Proposed collection techniques or other forms of Rulemaking—Large Insured Needs and Uses: On November 29, information technology, and (e) ways to Depository Institutions Reporting and 1999, the Community Broadcasters further reduce the information Planning. collection burden on small business Protection Act of 1999 (CBPA), Pub. L. Requests for further information concerns with fewer than 25 employees. No. 106–113, 113 Stat. Appendix I at pp. 1501A–594–1501A–598 (1999), concerning the meeting may be directed The FCC may not conduct or sponsor to Mr. Robert E. Feldman, Executive a collection of information unless it codified at 47 U.S.C. Section 336(f), was enacted. That legislation provided that a Secretary of the Corporation, at (202) displays a currently valid control 898–7043. number. No person shall be subject to low power television (LPTV) licensee any penalty for failing to comply with should be permitted to convert the Dated: April 9, 2010. a collection of information subject to the secondary status of its station to the new Robert E. Feldman, Paperwork Reduction Act (PRA) that Class A status, provided it can satisfy Executive Secretary, Federal Deposit does not display a currently valid OMB certain statutorily-established criteria. Insurance Corporation. control number. The CBPA directs that Class A licensees [FR Doc. 2010–8486 Filed 4–9–10; 4:15 pm] be subject to the same license terms and BILLING CODE 6714–01–P DATES: Written Paperwork Reduction Act (PRA) comments should be renewal standards as full-power submitted on or before June 14, 2010. If television licenses and that Class A you anticipate that you will be licensees be accorded primary status as FEDERAL RESERVE SYSTEM submitting PRA comments, but find it television broadcasters as long as they Formations of, Acquisitions by, and difficult to do so within the period of continue to meet the requirements set Mergers of Bank Holding Companies time allowed by this notice, you should forth in the statute for a qualifying low power station. The CBPA sets out advise the FCC contact listed below as The companies listed in this notice certain certification and application soon as possible. have applied to the Board for approval, procedures for LPTV licensees seeking ADDRESSES: Direct all PRA comments to pursuant to the Bank Holding Company Class A designation, prescribes the Act of 1956 (12 U.S.C. 1841 et seq.) Nicholas A. Fraser, Office of criteria LPTV licensees must meet to be Management and Budget, via fax at 202– (BHC Act), Regulation Y (12 CFR Part eligible for Class A licenses, and 225), and all other applicable statutes 395–5167 or via email to outlines the interference protection _ _ and regulations to become a bank Nicholas A. [email protected] and Class A applicants must provide to to the Federal Communications holding company and/or to acquire the analog, digital, LPTV and TV translator assets or the ownership of, control of, or Commission via email to [email protected] stations. and Cathy [email protected]. the power to vote shares of a bank or The CBPA directs that Class A bank holding company and all of the FOR FURTHER INFORMATION CONTACT: For stations must comply with the operating banks and nonbanking companies additional information, contact Cathy requirements for full-service television owned by the bank holding company, Williams on (202) 418–2918. broadcast stations. Therefore, beginning including the companies listed below. SUPPLEMENTARY INFORMATION: on the date of its application for a Class The applications listed below, as well OMB Control Number: 3060–0937. A license and thereafter, a station must as other related filings required by the Title: Establishment of a Class A be ‘‘in compliance’’ with the Board, are available for immediate Television Service, MM Docket No. 00– Commission’s operating rules for full- inspection at the Federal Reserve Bank 10. service television stations, contained in indicated. The applications also will be Form Number: N/A. 47 CFR Part 73. available for inspection at the offices of Type of Review: Extension of a Federal Communications Commission. the Board of Governors. Interested currently approved collection. persons may express their views in Marlene H. Dortch, Respondents: Business or other for- writing on the standards enumerated in profit entities. Secretary, the BHC Act (12 U.S.C. 1842(c)). If the Frequency of Response: On occasion Office of the Secretary, proposal also involves the acquisition of and quarterly reporting requirements; Office of Managing Director. a nonbanking company, the review also Recordkeeping and third party [FR Doc. 2010–8383 Filed 4–12–10; 8:45 am] includes whether the acquisition of the disclosure requirements. BILLING CODE 6712–01–S nonbanking company complies with the
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standards in section 4 of the BHC Act FEDERAL RETIREMENT THRIFT Office of Management and Budget (12 U.S.C. 1843). Unless otherwise INVESTMENT BOARD (OMB) a request to review and approve noted, nonbanking activities will be an extension of a currently approved conducted throughout the United States. Sunshine Act Meeting Notice information collection requirement Additional information on all bank concerning the one-time reporting, holding companies may be obtained TIME AND DATE: 9 a.m. (Eastern Time), compensation requirements. A request from the National Information Center April 19, 2010. for public comments was published in website at www.ffiec.gov/nic/. PLACE: 4th Floor Conference Room, the Federal Register at 74 FR 14639, on Unless otherwise noted, comments 1250 H Street, NW., Washington, DC March 31, 2009. regarding each of these applications 20005. Public comments are particularly must be received at the Reserve Bank STATUS: Parts will be open to the public invited on: Whether this collection of indicated or the offices of the Board of and parts closed to the public. information is necessary for the proper Governors not later than May 8, 2010. performance of functions of the FAR, Matters To Be Considered A. Federal Reserve Bank of Atlanta and whether it will have practical (Clifford Stanford, Vice President) 1000 Parts Open to the Public utility; whether our estimate of the public burden of this collection of Peachtree Street, N.E., Atlanta, Georgia 1. Approval of the minutes of the 30309: information is accurate, and based on March 15, 2010 Board member meeting. valid assumptions and methodology; 1. Validus Holdings, LLLP, Tampa, 2. Thrift Savings Plan activity report Florida; to become a bank holding ways to enhance the quality, utility, and by the Executive Director. clarity of the information to be company by acquiring up to 40 percent a. Monthly Participant Activity collected; and ways in which we can of the voting shares of GulfShore Report. minimize the burden of the collection of Bancshares, Inc., and thereby indirectly b. Legislative Report. information on those who are to acquire voting shares of GulfShore 3. Quarterly Reports. respond, through the use of appropriate Bank, both of Tampa, Florida. a. Investment Policy Review. b. Vendor Financial Review. technological collection techniques or Board of Governors of the Federal Reserve other forms of information technology. System, April 8, 2010. 4. Financial Audit Report. DATES: Robert deV. Frierson, Submit comments on or before Parts Closed to the Public May 13, 2010. Deputy Secretary of the Board. 5. Proprietary Data ADDRESSES: Submit comments regarding [FR Doc. 2010–8394 Filed 4–12–10; 8:45 am] CONTACT PERSON FOR MORE INFORMATION: this burden estimate or any other aspect BILLING CODE 6210–01–S Thomas J. Trabucco, Director, Office of of this collection of information, External Affairs. (202) 942–1640. including suggestions for reducing this FEDERAL RESERVE SYSTEM burden to: FAR Desk Officer, OMB, Dated: April 9, 2010. Room 10102, NEOB, Washington, DC Thomas K. Emswiler, Formations of, Acquisitions by, and 20503, and a copy to the Regulatory Mergers of Bank Holding Companies; Secretary, Federal Retirement Thrift Secretariat (MVCB), General Services Investment Board. Correction Administration, 1800 F Street, NW., [FR Doc. 2010–8571 Filed 4–9–10; 4:15 pm] Room 4041, Washington, DC 20405. This notice corrects a notice (FR Doc. BILLING CODE 6760–01–P Please cite OMB Control No. 9000–0168, 2010-7980) published on page 17917 of American Recovery and Reinvestment the issue for Thursday, April 8, 2010. Act—One-time Reporting, Under the Federal Reserve Bank of DEPARTMENT OF DEFENSE Compensation Requirements, in all New York heading, the entry for Morgan correspondence. Stanley, New York, New York, is GENERAL SERVICES FOR FURTHER INFORMATION CONTACT: Mr. revised to read as follows: ADMINISTRATION Ernest Woodson, Procurement Analyst, A. Federal Reserve Bank of New Contract Policy Branch, at telephone York (Ivan Hurwitz, Bank Applications NATIONAL AERONAUTICS AND (202) 501–3775 or via e-mail to Officer) 33 Liberty Street, New York, SPACE ADMINISTRATION [email protected]. New York 10045–0001: [OMB Control No. 9000–0168; Docket 2010– SUPPLEMENTARY INFORMATION: 1. Morgan Stanley, New York, New 0083; Sequence 20] York; to acquire 100 percent of the A. Purpose voting shares of Morgan Stanley Private Submission for OMB Review; Bank, N.A., Jersey City, New Jersey, as American Recovery and Reinvestment A one-time reporting elements for a result of converting Morgan Stanley Act—One-Time Reporting, prime contractors and first-tier Trust, Jersey City, New Jersey, into a Compensation Requirements subcontractors to publicly disclose the national bank. Morgan Stanley Private names and total compensation of each Bank, N.A., will assume certain deposit AGENCY: Department of Defense (DOD), of the contractor’s or first-tier liabilities of Morgan Stanley Bank, N.A., General Services Administration (GSA), subcontractor’s five most highly Salt Lake City, Utah, and will be and National Aeronautics and Space compensated officers, for the calendar relocated to Purchase, New York. Administration (NASA). year in which the award was made Comments on this application must ACTION: Notice of request for comments ((i)(2) and (i)(4)(ix)) (see applicability be received by April 26, 2010. regarding an extension to an existing requirements in (i)(2) and (i)(4)(ix)). The OMB clearance (9000–0168). parenthetical reference after each Board of Governors of the Federal Reserve reporting element description refers to System, April 8, 2010. SUMMARY: Under the provisions of the the FAR clause. Robert deV. Frierson, Paperwork Reduction Act of 1995 (44 While Section 1512(c)(4) requires Deputy Secretary of the Board. U.S.C. chapter 35), the Federal reporting on all FFATA data elements, [FR Doc. 2010–8393 Filed 4–12–10 8:45 am] Acquisition Regulation, Regulatory including the compensation BILLING CODE 6210–01–S Secretariat, will be submitting to the information, it limits the prime’s
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reporting responsibility to first-tier DEPARTMENT OF HEALTH AND • Respondent admitted to falsifying subcontractors that meet the HUMAN SERVICES Figure 2C in the publication: Bhonagiri, applicability requirements. The FAR P., Patter, G.R., Horvath, E.M., Habegger, clause requires this compensation Office of the Secretary K.M., McCarthy, A.M., Elmendorf, J.S. ‘‘Hexosamine biosysthesis pathway flux disclosure for prime contractors as well Findings of Research Misconduct because to exclude prime contractors contributes to insulin resistance via while requiring disclosure for first-tier AGENCY: Office of the Secretary, HHS. altering membrane PIP2 and cortical F- subcontractors would be unsupportable ACTION: Notice. actin.’’ Endocrinology 150(4):1636– given the transparency goals of both 1645, 2009. SUMMARY: Respondent also admitted to falsifying FFATA and the Recovery Act. Notice is hereby given that the Office of Research Integrity (ORI) Figures 2C, 5, 6D, 11, 13C, 15A, 16A, There are likely to be some prime and the Assistant Secretary for Health 17A, 18, 19C, and 20A, which are contractors that already provide public have taken final action in the following included in her thesis, ‘‘Cholesterol- access to the compensation of senior case: dependent mechanism(s) of insulin- executives through periodic reports Emily M. Horvath, Indiana University: sensitizing therapeutics.’’ The Ph.D. was filed under section 13(a) or 15(d) of the Based on the Respondent’s own awarded to the Respondent on Securities Exchange Act of 1934 or admissions in sworn testimony and as December 31, 2008. Respondent was section 6104 of the Internal Revenue set forth below, Indiana University (IU) supported by a Predoctoral Fellowship Code of 1986. For purposes of this and the U.S. Public Health Service Award F31 AT003977 from 09/30/2006 analysis, the Government estimates 15% (PHS) found that Ms. Emily M. Horvath, to 09/29/2009. of prime contractors already provide former graduate student, IU, engaged in Ms. Horvath has entered into a such public access. There are also likely research misconduct in research Voluntary Settlement Agreement in which she has voluntarily agreed, for a to be some first-tier subcontractors that supported by National Center for Complementary and Alternative period of three (3) years, beginning on do not meet either of the revenue Medicine (NCCAM), National Institutes March 22, 2010: thresholds for applicability. For of Health (NIH), grant R01 AT001846 (1) To exclude herself from serving in purposes of this analysis, the and Predoctoral Fellowship Award F31 any advisory capacity to PHS, including Government estimates 25 percent of AT003977–01, and National Institute of but not limited to service on any PHS first-tier subcontractors will not have to Diabetes and Digestive and Kidney advisory committee, board, and/or peer disclose compensation information Diseases (NIDDK), NIH, grant R01 review committee, or as a consultant; because they do not meet the revenue DK082773–01. (2) That any institution that submits thresholds. Specifically, the Respondent admitted an application for PHS support for a The hours estimated per response to falsifying the original research data research project on which the include the time for reviewing when entering values into computer Respondent’s participation is proposed or that uses her in any capacity on PHS- instructions, searching existing data programs for statistical analysis with the supported research, or that submits a sources, gathering the data, and goal of reducing the magnitude of errors report of PHS-funded research in which completing the collection of within groups, thereby gaining greater statistical power. The Respondent, IU, she is involved, must concurrently information. and ORI agree that the figures identified submit a plan for supervision of her B. Annual Reporting Burden below in specific grant applications and duties to the funding agency for published papers are false and that approval; the supervisory plan must be Respondents: 82,198. these falsifications rise to the level of designed to ensure the scientific Responses per Respondent: 1.25. research misconduct: integrity of her research contribution; • Respondent admitted to falsifying respondent agreed that she will not Total Annual Reponses: 102,747. Figures 6B, 18, 22, 23B, and 24 in participate in any PHS-supported Hours per Response: 3. NCCAM, NIH, grant application R01 research until such a supervisory plan is Total Burden Hours: 308,242. AT001846–06, ‘‘Chromium Enhanced submitted to ORI; Insulin & GLUT4 Action via Lipid (3) That any institution employing her Obtaining Copies of Proposals: Rafts,’’ Jeffery S. Elmendorf, P.I. (07/01/ submits, in conjunction with each Requesters may obtain a copy of the 04–05/31/20) (application was application for PHS funds or report, information collection documents from withdrawn in May 2009). manuscript, or abstract of PHS-funded the General Services Administration, • Respondent admitted to falsifying research in which the Respondent is Regulatory Secretariat (MVCB), 1800 F Figures 6B, 8, 9D, 16D, and 21 in involved, a certification that the data Street, NW., Room 4041, Washington, NIDDK, NIH, grant application R01 provided by the Respondent are based DC 20405, telephone (202) 501–4755. DK082773–01, ‘‘Mechanisms of on actual experiments or are otherwise Please cite OMB Control No. 9000–0168, Membrane-Based Insulin Resistance & legitimately derived and that the data, American Recovery and Reinvestment Therapeutic Reversal Strategies,’’ Jeffrey procedures, analyses, and methodology Act—One-time Reporting, S. Elmendork, P.I. (3/15/09–01/31/13). are accurately reported in the Compensation Requirements, in all • Respondent admitted to falsifying application, report, manuscript, or correspondence. Figures 2C, 5, 6D, and 11 in the abstract; the Respondent must ensure publication: Horvath, E.M., Tacket, L., Dated: April 1, 2010. that the institution sends a copy of the McCarthy, A.M., Raman, P., Brozinick, certification to ORI; and Al Matera, J.T., & Elmendorf, J.S. ‘‘Antidiabetogenic (4) That she will write letters, Director, Acquisition Policy Division. Effects of Chromium Mitigate approved by ORI, to relevant journal [FR Doc. 2010–8031 Filed 4–12–10; 8:45 am] Hyperinsulinemia-induced Cellular editors of the published papers cited BILLING CODE 6820–EP–P Insulin Resistance via Correction of above to state what she falsified/ Plasma Membrane Cholesterol fabricated and to provide corrections if Imbalance.’’ Molecular Endocrinology she has not already done so. These 22:937–950, 2008. letters should state that her
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falsifications/fabrications were the important roles in regulation of cell proposes to establish a new system of underlying reason for the retraction/ proliferation and survival. records entitled, ‘‘Minority Health corrections. Both Dr. Cheskis and the U.S. Public Information Service.’’ Under provisions Health Service (PHS) were desirous of of 42 U.S.C. sec. 300u–6, the Office of FOR FURTHER INFORMATION CONTACT: concluding this matter without further Minority Health (OMH) is charged with Director, Division of Investigative expense of time and other resources. Dr. maintaining a national minority health Oversight, Office of Research Integrity, Cheskis neither admits nor denies that resource center to (1) Facilitate 1101 Wootton Parkway, Suite 750, ORI’s findings represent findings of exchange of and access to information Rockville, MD 20852, (240) 453–8800. research misconduct. The settlement is related to health information, John Dahlberg, not an admission of liability on the part promotion, services and education; (2) Director, Division of Investigative Oversight, of the Respondent. assist in analysis of issues and problems Office of Research Integrity. Dr. Cheskis has entered into a with regard to such matters; and (3) [FR Doc. 2010–8386 Filed 4–12–10; 8:45 am] Voluntary Settlement Agreement. Dr. provide technical assistance with regard BILLING CODE 4150–31–P Cheskis has voluntarily agreed, for a to the exchange of such information. period of two (2) years, beginning on The primary purpose of this system is March 22, 2010: to collect and facilitate distribution of DEPARTMENT OF HEALTH AND (1) To exclude himself from serving in minority health information to public HUMAN SERVICES any advisory capacity to PHS, including and professional audiences. In support but not limited to service on any PHS of this purpose, this system maintains Office of the Secretary advisory committee, board, and/or peer individually identifiable information review committee, or as a consultant; concerning individuals voluntarily Findings of Research Misconduct (2) That any institution that submits participating in OMH health campaigns an application for PHS support for a AGENCY: Office of the Secretary, HHS. and technical assistance programs, and research project on which the concerning information requested by ACTION: Notice. Respondent’s participation is proposed individually identifiable customers that or that uses him in any capacity on SUMMARY: Notice is hereby given that is maintained to facilitate order tracking PHS-supported research, or that submits the Office of Research Integrity (ORI) and customer service. a report of PHS-funded research in and the Assistant Secretary for Health DATES: Effective Dates: This notice will which he is involved, must concurrently have taken final action in the following become effective 30 days from the date submit a plan for supervision of his case: of publication of the notice unless duties to the funding agency for Boris Cheskis, Ph.D., Wyeth modified by a subsequent notice making approval; the supervisory plan must be Pharmaceuticals: Based on the report of changes in response to public designed to ensure the scientific an investigation conducted by Wyeth comments. Although the Privacy Act integrity of his research contribution; Pharmaceuticals and additional analysis requires only that OMH provide an respondent agreed that he will not conducted by ORI in its oversight opportunity for interested persons to participate in any PHS-supported review, ORI found that Boris Cheskis, comment on the proposed routine uses, research until such a supervisory plan is Ph.D., former senior scientist, Discovery OMH invites comments on all portions submitted to ORI. Research, Women’s Health, Wyeth of this notice. Pharmaceuticals, engaged in research FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT: misconduct in grant applications 1 R01 Director, Division of Investigative Blake Crawford, Director, Division of DK072026–01 and 1 R01 DK072026– Oversight, Office of Research Integrity, Information and Education, Office of 01A2 submitted to the National Institute 1101 Wootton Parkway, Suite 750, Minority Health, 1101 Wootton of Diabetes and Digestive and Kidney Rockville, MD 20852, (240) 453–8800. Parkway, Suite 600, Rockville, MD Diseases (NIDDK), NIH. John Dahlberg, 20852. He can be reached by telephone at 240–453–6905 or via e-mail at Specifically, ORI found that: Director, Division of Investigative Oversight, • The Respondent engaged in Office of Research Integrity. [email protected]. misconduct in science, 42 CFR 50.102, [FR Doc. 2010–8387 Filed 4–12–10; 8:45 am] SUPPLEMENTARY INFORMATION: Generally, in NIDDK, NIH, grant application 1 R01 BILLING CODE 4150–31–P OMH distributes a variety of DK072026–01, ‘‘MNAR Crosstalk with information via e-mail newsletter, Steroid Receptors,’’ submitted to NIH on maintains a Resource Persons Network September 28, 2004, by intentionally DEPARTMENT OF HEALTH AND of public and private health experts, falsifying Figures 5 and 6. HUMAN SERVICES plans and implements health campaigns • The Respondent engaged in and leads national initiatives with research misconduct, 42 CFR 93.103, in Office of the Secretary federal and nonfederal partners, NIDDK, NIH, grant application 1 R01 conducts leadership development DK072026–01A2, ‘‘MNAR Crosstalk Office of Public Health and Science, programs, provides capacity with Steroid Receptors,’’ submitted to Office of Minority Health; Privacy Act development and technical assistance NIH on November 9, 2005, by of 1974; Report of a New System of services to community organizations intentionally falsifying Figures 6 and 9. Records and government agencies and provides Dr. Cheskis’ research was in an area AGENCY: Department of Health and information, literature and statistical of research (estrogen receptors and Human Services, Office of the Secretary, data in response to public inquiries. The modulation of nongenomic Office of Public Health and Science, Minority Health Information Service phosphorylation cascades) that is of Office of Minority Health. supports the mission of the OMH importance to women’s health. Dr. ACTION: Notice of a new Privacy Act Resource Center (OMHRC) to function Cheskis’ team identified an adapter System of Records (SOR). as a help desk and technical assistance protein, MNAR, that coordinates service for the public and an interactions between certain nuclear SUMMARY: In accordance with the organization that assists OMH in receptors, Src and PI3K and may play requirements of the Privacy Act, OMH implementing national initiatives and
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campaigns. The Minority Health OMH campaign, currently comprising 1101 Wootton Parkway, Suite 600, Information Service stores data on individuals who have volunteered to Rockville, MD 20852. individuals who ask, via telephone, train peers on healthy living and pre- J. Notification Procedure: To mail, e-mail, Web form, face to face conception care. determine whether the system contains encounter or other means, to participate 5. Organizational Databases: Business a record on you, please write to the in or be regularly informed of these contact information for official system manager at the address above, OMH activities. The resource center is representatives of organizations working providing name, address, e-mail, managed under contract to OMH, and on minority health or participating in telephone and organizational affiliation. its offices are located on the same floor OMH initiatives, along with K. Contesting Records: Mailing list of the same building as OMH. organizational descriptions. members may unsubscribe from the 6. Inquiry Tracking System: Details, mailing list or correct their entry by I. Description of the Proposed System of by customer name, of information clicking on a link in an e-mail received Records requests directed to OMH Resource from the system. Unsubscribing will A. Statutory Basis: The statutory basis Center and data on fulfillment of these remove subscriber information from the for the maintenance of this system is 42 requests. system. For all other deletions and U.S.C. 300u–6. F. Information Collected: corrections, please write, call, e-mail or B. Security Classification: None. The following information is fax Office of Minority Health Resource C. System Location: The system is collected. Center, 1101 Wootton Parkway, Suite located at OMHRC, 1101 Wootton 1. Mailing List: Name, business 650, Rockville, MD 20852, telephone Parkway, Suite 650, Rockville, MD address, organizational affiliation, 800–444–6472, e-mail [email protected], 20852 and OMH, 1101 Wootton telephone, and e-mail. fax 240–453–2883. The identity of the Parkway, Suite 600, Rockville, MD 2. Resource Persons Network, requestor will be verified by comparison 20852. Training Institute File, Campaign File: with information contained in the D. Purpose: The purpose of the system Name, business address, organizational existing record. An individual may is to (1) Identify individuals who have affiliation, title, telephone, e-mail, fax, request accounting of disclosures volunteered to provide pro bono resume, race/ethnicity, areas in which outside the department. The right to technical assistance to community individual offers expertise, health topics contest records is limited to information organizations or government agencies or populations with which the that is incomplete, irrelevant, incorrect, on aspects of minority health; (2) individual wishes to work. or untimely. identify key officials at national, state, 3. Organizational Databases: Name of regional and local organizations who organization and key contact person, II. Agency Policies, Procedures, and serve as public points of contact for that business address, telephone, e-mail, Restrictions on Routine Uses organization or work specifically on Web site URL, description of The Privacy Act permits the minority health issues; and (3) allow the organization. disclosure of information without an OMH Resource Center contractor to 4. Inquiry Tracking System: Name of individual’s consent if the information operate, maintain and safeguard the data requestor, organizational affiliation, is used for a purpose that is compatible system. business address, telephone, e-mail, fax, with the purpose(s) for which the E. Categories of Individuals Covered occupational category (health information was collected. Any such by the System: professional, academic, etc.), source of disclosure of data is known as ‘‘routine Information is collected on members referral, information requested, use.’’ OMH maintains the following of the general public, health fulfillment details (date shipped, etc.). procedures for the maintenance of professionals, faculty of academic G. Sources of Information: personally identifiable information: institutions, students, representatives of Information is collected via mail, e-mail, A. We will only release information government agencies, community Web form, telephone or in person at from this system as provided for under organizations and private businesses conferences and meetings from ‘‘Section III. Routine Uses of Records.’’ who seek health information from OMH individuals who receive some type of B. We will only collect the minimum or its Resource Center, and those who communication from OMH. Listings in data necessary to achieve the purpose of ask to or agree to participate in OMH- the organizational database are generally the Minority Health Information sponsored health programs. drawn from publicly available Service. The system of records includes the documents such as directories, C. We will collect and disclose only following subsystems: newsletters, and organizational Web data that OMH has determined to be 1. Mailing List: Individuals who have sites and are confirmed through direct accurate. asked to receive OMH’s electronic contact with the organization. Names of D. We will validate information in the newsletter and intermittent e-mail contact individuals at organizations system annually, and as corrections are updates. partnering with OMH on an initiative, received from the public. 2. Resource Persons Network: project or campaign are provided by the E. We will provide opportunities and Individuals with health expertise who organization. methods for individual correction of have volunteered to provide some pro H. Storage and Retrievability: data in the system consistent with bono technical assistance to community Records are stored in file folders, requirements of the Privacy Act. organizations of government agencies electronic media and other types of data F. We will publish on the OMH Web working on aspects of minority health. storage devices. site our Privacy Policy for information 3. Training Institute File: Individuals Data are retrievable by name, business collected via this Web site. who have applied to and are address, telephone, e-mail, participating in a leadership organizational affiliation, and type of III. Routine Uses of Records development course for emerging and technical assistance provided (for the 1. To identify one or more individuals future leaders of community Resource Persons Network). who have volunteered to provide pro organizations. I. System Manager and Address: bono technical assistance to a 4. Campaign File: Individuals who Director, Division of Information and community organization or government have volunteered to participate in an Education, Office of Minority Health, agency on aspects of minority health in
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response to a specific request for affect the Agency or any of its the potential harm to individual privacy assistance. OMHRC staff provide one or components, is a party to litigation or or other personal property rights of more names and associated contact has an interest in such litigation, and individuals whose data are maintained information to requesting organizations the use of such records by the in the system. OMH will collect only when OMHRC staff finds a match Department of Justice or the Agency is that information necessary to perform between an assistance request and a deemed by the Agency to be relevant the system’s functions. In addition, Resource Persons Network member with and necessary to the litigation; OMH will make disclosure from the relevant expertise, experience and provided, however, that in each case it system only with the consent of the background, and when the request has been determined that the disclosure subject individual, his or her legal matches the activities, health topics, or is compatible with the purpose for representative, or in accordance with an populations for which the network which the records were collected. applicable exception provision of the member has specified that he or she is Privacy Act. OMH therefore does not IV. Protections and Safeguards available to assist. anticipate an unfavorable effect on 2. To identify key officials at national, The system conforms to all applicable individual privacy as a result of state, regional and local organizations Federal laws and regulations and information relating to individuals. who serve as public points of contact for Federal and HHS policies and standards Date: March 22, 2010. that organization or its work specifically for information security and data on minority health. Information privacy. The OMH system manager, Garth N. Graham, searches are provided on request. OMHRC senior leadership and OMHRC Deputy Assistant Secretary for Minority Contact information for OMH campaign technology manager confer to review Health. and initiative partners may be posted on and ensure compliance with provisions SYSTEM NO.: the OMH Web site. of this notice and any changes in 3. To allow the OMH Resource Center security requirements. 09–90–0161 contractor to operate this data system. A. Authorized Users SYSTEM NAME: OMH uses a contractor to operate the ‘‘Minority Health Information Records are available to the system OMH Resource Center, which maintains Service,’’ HHS/OS/OPHS/OMH. the Minority Health Information manager and OMH staff when they have Service. This contractor collects the a need for the records in the SECURITY CLASSIFICATION: information, maintains the data system performance of their duties. Records are None. and safeguards the data under the also available to OMHRC technology provisions outlined in this notice and staff, OMHRC director and deputy SYSTEM LOCATION: applicable law and regulation. The director, OMHRC communications staff, The system is located at OMHRC, contractor is prohibited from using OMHRC information specialists 1101 Wootton Parkway, Suite 650, these data for any purpose other than (mailing list, organizational databases, Rockville, MD 20852 and OMH, 1101 described in the contract and is required inquiry tracking system), OMHRC Wootton Parkway, Suite 600, Rockville, to return all data to the government or knowledge center/library staff MD 20852. deliver it securely to a government- (organizational data bases and resource CATEGORIES OF INDIVIDUALS COVERED BY THE designated successor contractor, at the persons network), OMHRC data entry SYSTEM: completion of the contract. staff, who need access in order to 4. To appropriate Department perform their duties. Information is collected on members contractors to enable conduct of of the general public, health B. Safeguards evaluation studies or administration of professionals, faculty of academic OMB-approved customer satisfaction Data systems are in a secured office institutions, students, representatives of surveys. space with a carded entrance. Servers government agencies, community 5. To appropriate federal agencies and are located in a locked rack. Data are organizations and private businesses Department contractors that have a need backed up nightly with a one-month who seek health information from OMH to know the information for the purpose daily snapshot available at any time and or its Resource Center, and those who of assisting the department’s efforts to monthly snapshots for a year. Annual ask to or agree to participate in OMH- respond to a suspected or confirmed training is required and conducted for sponsored health programs. authorized users regarding proper breach of the security or confidentiality CATEGORIES OF RECORDS IN THE SYSTEM: of information maintained in the system handling and safeguarding of personally of records, and the information identifiable information. OMH and The system of records includes the disclosed is relevant and necessary for OMHRC staff are trained on HHS following subsystems: the assistance. policies regarding personal use of health 7. Mailing List: Individuals who have 6. To the Department of Justice, or in information technology. asked to receive OMH’s electronic newsletter and intermittent e-mail a proceeding before a court, adjudicative V. Effects on Individual Rights body, or other administrative body updates. Information collected: Name, before which the Agency is authorized OMH proposes to establish this business address, organizational to appear, when: system in accordance with the affiliation, telephone, and e-mail. a. The Agency, or any component principles and requirements of the 8. Resource Persons Network: thereof; or Privacy Act and will collect, use, and Individuals with health expertise who b. Any employee of the Agency in his disseminate information only as have volunteered to provide some pro or her official capacity; or prescribed therein. Data in this system bono technical assistance to community c. Any employee of the Agency in his will be subject to authorized releases in organizations of government agencies or her individual capacity where the accordance with the routine uses working on aspects of minority health. Department of Justice or the Agency has identified in this system of records. Information collected: Name, business agreed to represent the employee; or OMH will take precautionary address, organizational affiliation, title, d. The United States, if the Agency measures to minimize the risks of telephone, e-mail, fax, resume, race/ determines that litigation is likely to unauthorized access to the records and ethnicity, areas in which individual
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offers expertise, health topics or ROUTINE USES OF RECORDS MAINTAINED IN THE i. The Agency, or any component populations with which the individual SYSTEM, INCLUDING CATEGORIES OF USERS AND thereof; or wishes to work. THE PURPOSES OF SUCH USES: ii. Any employee of the Agency in his 9. Training Institute File: Individuals 7. To identify one or more individuals or her official capacity; or who have applied to and are who have volunteered to provide pro iii. Any employee of the Agency in participating in a leadership bono technical assistance to a his or her individual capacity where the development course for emerging and community organization or government Department of Justice or the Agency has future leaders of community agency on aspects of minority health in agreed to represent the employee; or organizations. Information collected: response to a specific request for iv. The United States, if the Agency Name, business address, organizational assistance. OMHRC staff provide one or determines that litigation is likely to affiliation, title, telephone, e-mail, fax, more names and associated contact affect the Agency or any of its resume, race/ethnicity, areas in which information to requesting organizations components, is a party to litigation or individual offers expertise, health topics when OMHRC staff finds a match has an interest in such litigation, and or populations with which the between an assistance request and a the use of such records by the individual wishes to work. Resource Persons Network member with Department of Justice or the Agency is 10. Campaign File: Individuals who relevant expertise, experience and deemed by the Agency to be relevant have volunteered to participate in an background, and when the request and necessary to the litigation; OMH campaign, currently comprising matches the activities, health topics, or provided, however, that in each case it individuals who have volunteered to populations for which the network has been determined that the disclosure train peers on healthy living and pre- member has specified that he or she is is compatible with the purpose for conception care. Information collected: available to assist. which the records were collected. Name, business address, organizational 8. To identify key officials at national, POLICIES AND PRACTICES ON STORING, affiliation, title, telephone, e-mail, fax, state, regional and local organizations ACCESSING, RETRIEVING, AND DISPOSING OF resume, race/ethnicity, areas in which who serve as public points of contact for RECORDS IN THE SYSTEM: individual offers expertise, health topics that organization or its work specifically or populations with which the on minority health. Information STORAGE: individual wishes to work. searches are provided on request. Records are stored in file folders, 11. Organizational Databases: Contact information for OMH campaign electronic media and other types of data Business contact information for official and initiative partners may be posted on storage devices. representatives of organizations working the OMH Web site. RETRIEVABILITY: on minority health or participating in 9. To allow the OMH Resource Center Data are retrievable by name, business OMH initiatives, along with contractor to operate this data system. address, telephone, e-mail, organizational descriptions. Information OMH uses a contractor to operate the organizational affiliation, and type of collected: Name of organization and key OMH Resource Center, which maintains technical assistance provided (for the contact person, business address, the Minority Health Information Resource Persons Network) telephone, e-mail, Web site URL, Service. This contractor collects the description of organization. information, maintains the data system PROTECTIONS: 12. Inquiry Tracking System: Details, and safeguards the data under the The system conforms to all applicable by customer name, of information provisions outlined in this notice and Federal laws and regulations and requests directed to OMH Resource applicable law and regulation. The Federal and HHS policies and standards Center and data on fulfillment of these contractor is prohibited from using for information security and data requests. Information collected: Name of these data for any purpose other than privacy. The OMH system manager, requestor, organizational affiliation, described in the contract and is required OMHRC senior leadership and OMHRC business address, telephone, e-mail, fax, to return all data to the government or technology manager confer to review occupational category (health deliver it securely to a government- and ensure compliance with provisions professional, academic, etc.), source of designated successor contractor, at the of this notice and any changes in referral, information requested, completion of the contract. security requirements. fulfillment details (date shipped etc.). 10. To appropriate Department Records are available to the system AUTHORITY FOR MAINTENANCE OF THE SYSTEM: contractors to enable conduct of manager and OMH staff when they have The statutory basis for the evaluation studies or administration of a need for the records in the maintenance of this system is 42 U.S.C. OMB-approved customer satisfaction performance of their duties. Records are 300u–6. surveys. also available to OMHRC technology 11. To appropriate federal agencies staff, OMHRC director and deputy PURPOSES OF THE SYSTEM: and Department contractors that have a director, OMHRC communications staff, The purpose of the system is to (1) need to know the information for the OMHRC information specialists Identify individuals who have purpose of assisting the department’s (mailing list, organizational databases, volunteered to provide pro bono efforts to respond to a suspected or inquiry tracking system), OMHRC technical assistance to community confirmed breach of the security or knowledge center/library staff organizations or government agencies confidentiality of information (organizational data bases and resource on aspects of minority health; (2) maintained in the system of records, persons network), OMHRC data entry identify key officials at national, state, and the information disclosed is staff, who need access in order to regional and local organizations who relevant and necessary for the perform their duties. serve as public points of contact for that assistance. Data systems are in a secured office organization or work specifically on 12. To the Department of Justice, or in space with a carded entrance. Servers minority health issues; and (3) allow the a proceeding before a court, adjudicative are located in a locked rack. Data are OMH Resource Center contractor to body, or other administrative body backed up nightly with a one-month operate, maintain and safeguard the data before which the Agency is authorized daily snapshot available at any time and system. to appear, when: monthly snapshots for a year. Annual
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training is required and conducted for system. For all other deletions and stored in the PIMS system to include authorized users regarding proper corrections, please write, call, e-mail or information that covered entities under handling and safeguarding of personally fax Office of Minority Health Resource the Health Insurance Portability and identifiable information. OMH and Center, 1101 Wootton Parkway, Suite Accountability Act of 1996 (HIPAA) and OMHRC staff are trained on HHS 650, Rockville, MD 20852, telephone their business associates report to the policies regarding personal use of health 800–444–6472, e-mail [email protected], Secretary with respect to a breach of information technology. fax 240–453–2883. The identity of the protected health information. See requestor will be verified by comparison Effective Dates section for comment RETENTION AND DISPOSAL: with information contained in the period. 1. Mailing List: Records are existing record. An individual may DATES: Effective Dates: OCR filed a maintained until removed by the request accounting of disclosures individual on whom information is system report with the Chair of the outside the department. The right to House Committee on Government maintained or until the individual contest records is limited to information requests removal. Reform and Oversight, the Chair of the that is incomplete, irrelevant, incorrect, Senate Committee on Homeland 2. Resource Persons Network: Records or untimely. are maintained for as long as the Security and Governmental Affairs, and individual indicates a willingness to RECORDS SOURCE CATEGORIES: the Administrator, Office of Information serve as a Resource Person by Information is collected via mail, e- and Regulatory Affairs, Office of responding affirmatively to update mail, Web form, telephone or in person Management and Budget (OMB) on requests. at conferences and meetings from March 30, 2010. Comments on this SOR 3. Training Institute File: Records are individuals who receive some type of may be submitted within 40 days from maintained for three years following the communication from OMH. Listings in the publication of the notice, or from the end of the specific training course. the organizational database are generally date it was submitted to OMB and the 4. Campaign File: Contact information drawn from publicly available Congress, whichever is later. The SOR, on individuals is maintained for the documents such as directories, including routine uses, will become duration of the campaign. Resumes are newsletters, and organizational Web effective at the end of the 40-day period, retained for one year. sites and are confirmed through direct unless OCR receives comments that 5. Organizational Databases: Records contact with the organization. Names of require alterations to this notice. are maintained until the organization contact individuals at organizations ADDRESSES: You may submit comments about which information is maintained partnering with OMH on an initiative, by any of the following methods (please no longer works in minority health, or project or campaign are provided by the do not submit duplicate comments): until the contact person for the organization. • Federal eRulemaking Portal: http:// organization changes. www.regulations.gov. Follow the 6. Inquiry Tracking System: Records SYSTEMS EXEMPTED FROM CERTAIN PROVISIONS instructions for submitting comments. OF THE ACT: are maintained for three years following Attachments should be in Microsoft order fulfillment. None. Word, WordPerfect, or Excel; however, Records no longer maintained are [FR Doc. 2010–8413 Filed 4–12–10; 8:45 am] we prefer Microsoft Word. disposed of by deletion from electronic BILLING CODE 4150–29–P • Regular, Express, or Overnight Mail: media and shredding of hard copy U.S. Department of Health and Human records. Electronic records deleted from Services, Office for Civil Rights, active files are maintained in system DEPARTMENT OF HEALTH AND Attention: PIMS System of Records, back-up files on tape media for one year. HUMAN SERVICES Hubert H. Humphrey Building, Room 509F, 200 Independence Avenue, SW., SYSTEM MANAGER AND ADDRESS: Office for Civil Rights; Privacy Act of Washington, DC 20201. Please submit Director, Division of Information and 1974, Amended System of Records one original and two copies. • Education, Office of Minority Health, AGENCY: Office for Civil Rights (OCR), Hand Delivery or Courier: Office for 1101 Wootton Parkway, Suite 600, Department of Health and Human Civil Rights, Attention: PIMS System of Rockville, MD 20852. Services (HHS or the Department). Records, Hubert H. Humphrey Building, NOTIFICATION PROCEDURE: ACTION: Notice of modified or altered Room 509F, 200 Independence Avenue, SW., Washington, DC 20201. Please To determine whether the system System of Records (SOR). submit one original and two copies. contains a record on you, please write SUMMARY: In accordance with the (Because access to the interior of the to the system manager at the address Privacy Act, we are proposing to modify Hubert H. Humphrey Building is not above, providing name, address, e-mail, or alter an existing SOR, ‘‘Program readily available to persons without telephone and organizational affiliation. Information Management System Federal government identification, RECORD ACCESS PROCEDURE: (PIMS),’’ System No. 09–90–0052, commenters are encouraged to leave To determine whether the system published at 67 FR 57011, September 6, their comments in the mail drop slots contains a record on you, please write 2002. First, we propose to add a new located in the main lobby of the to the system manager at the address authority, the Health Information building.) above, providing name, address, e-mail, Technology for Economic and Clinical Inspection of Public Comments: All telephone and organizational affiliation. Health (HITECH) Act, part of the comments received before the close of American Recovery and Reinvestment the comment period will be available for CONTESTING RECORD PROCEDURES: Act of 2009 (Pub. L. 111–5), to those public inspection, including any Contesting Records: Mailing list under which OCR collects information. personally identifiable or confidential members may unsubscribe from the Second, we propose to add three new business information that is included in mailing list or correct their entry by purposes of the PIMS system. Third, we a comment. We will post all comments clicking on a link in an e-mail received propose to add six new routine uses to received before the close of the from the system. Unsubscribing will the PIMS system. Fourth, we propose to comment period at http:// remove subscriber information from the expand the categories of information www.regulations.gov. Because
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comments will be made public, they (NIST) in NIST Special Publication 800– make available to the public on the HHS should not include any sensitive 18, ‘‘Guide for Developing Security Web site a list that identifies each personal information, such as a person’s Plans for Information Technology covered entity involved in a breach social security number; date of birth; Systems.’’ The plan includes affecting more than 500 individuals. To driver’s license number, state performance of a risk assessment that implement these HITECH provisions, identification number or foreign country addresses the confidentiality and HHS published an interim final rule on equivalent; passport number; financial integrity of the data. Only authorized August 24, 2009 (74 FR 42740). Section account number; or credit or debit card users have access to the information in 164.408(a) of the regulations published number. Comments also should not the system. in the interim final rule requires include any sensitive health Specific access is structured around covered entities to notify the Secretary information, such as medical records or need and is determined by the person’s of breaches of unsecured protected other individually identifiable health role in the organization. Access is health information. Section 164.408(b) information. managed through the use of electronic requires breaches that affect 500 or more access control lists, which regulate the FOR FURTHER INFORMATION CONTACT: For individuals to be reported to the ability to read, change, and delete further information contact: PIMS Secretary contemporaneously with information in the system. Each OCR Project Manager, Management notice to the individual—that is, user has read access to designated Operations Division, Office for Civil without unreasonable delay and in no information in the system, with the Rights, 200 Independence Ave., SW., case later than 60 calendar days after a ability to modify only their own Room 509F, Washington, DC 20201. covered entity discovers a breach submissions or those of others within Telephone number: (202) 619–2888. (subject to a law enforcement delay as their region or group. Data identified as SUPPLEMENTARY INFORMATION: The provided in section 164.412). Section confidential is so designated and only 164.408(c) sets out the annual reporting system of records (i.e., PIMS) described specified individuals are granted access. in the OCR’s Privacy Act notice, 67 FR for breaches affecting fewer than 500 The system maintains an audit trail of individuals. Covered entities are 57011 (Sept. 6, 2002), is used by OCR all actions against the data base. All staff and consists of an electronic required to report these breaches in the electronic data is stored on servers manner specified on the HHS Web site. repository of information and maintained in locked facilities with documents, and supplementary paper A breach report form that has been computerized access control allowing approved by OMB for collection of this document files. PIMS effectively access to only those support personnel combined and replaced OCR’s two information can be found at http:// with a demonstrated need for access. A transparency.cit.nih.gov/breach/ previous systems of records, (CIMS and database is kept of all individuals the Complaint File and Log), into a index.cfm. A breach report must be filed granted security card access to the room, through this Web site. single, integrated system with enhanced and all visitors are escorted while in the electronic storage, retrieval, and room. The server facility has Accordingly, this notice modifies tracking capacities that allows OCR to appropriate environmental security PIMS by adding a new authority for manage more effectively the information controls, including measures to mitigate maintenance of the system, identifies that it collects. PIMS was modified to damage to automated information three new purposes of the PIMS system, add a new authority, the Patient Safety system resources caused by fire, adds new routine uses of the PIMS and Quality Improvement Act of 2005, electricity, water, and inadequate system, and expands the categories of and altered to add two new routine uses climate controls. Access control to information stored in the PIMS system. in OCR’s Privacy Act notice at 72 FR servers, individual computers and In addition to the new routine uses 8734 (Feb. 27, 2007). databases includes a required user log- proposed because of breach notification The Privacy Act permits OCR to on with a password, inactivity lockout requirements under the HITECH Act, disclose information or records to systems based on a specified period one proposed new routine use regards pertaining to an individual without that of time, legal notices and security responding to breaches of personally individual’s consent if the information warnings at log-on, and remote access identifiable information within the is to be used for a purpose that is security that allows user access for Department, consistent with Office of compatible with the purpose(s) for remote users (e.g., while on government Management and Budget (OMB) which the information was collected, 5 travel) under the same terms and Memorandum 07–16, Safeguarding U.S.C. 552a(b)(3). Any such disclosure conditions as for users within the office. Against and Responding to the Breach is known as a ‘‘routine use.’’ The PIMS System administrators have appropriate of Personally Identifiable Information, system conforms to applicable law and security clearance. Printed materials are dated May 22, 2007. Another proposed policy governing the privacy and filed in secure cabinets in secure new routine use regards disclosing security of Federal automated Federal buildings with access based on relevant personally identifiable information systems. These include but need as described above for the information including the identity of are not limited to: The Privacy Act of automated component of the PIMS covered entities and business associates 1974, Federal Information Security system. to obtain information relevant and Management Act of 2002, Computer Section 13402(e)(3) of the HITECH necessary to investigate violations and Security Act of 1987, the Paperwork Act requires HIPAA covered entities to potential violations, as well as to Reduction Act of 1995, the Clinger- provide notice to the Secretary of the conduct compliance reviews, of the Cohen Act of 1996, and OMB Circular Department of Health and Human Federal laws and regulations OCR has A–130, Appendix, III, ‘‘Security of Services (HHS or the Department) of a legal authority to enforce. The last new Federal Automated Information breach of unsecured protected health proposed routine use regards allowing Resources.’’ information. Notice to the Secretary is OCR to disclose relevant information to OCR has prepared a system security required immediately if a breach affects the public to inform the public of the plan as required by OMB Circular A– 500 or more individuals and annually results of investigations and compliance 130, Appendix III. This plan conforms for breaches affecting fewer than 500 reviews of the Federal laws and fully to guidance issued by the National individuals. Section 13402(e)(4) of the regulations that OCR has legal authority Institute for Standards and Technology HITECH Act requires the Secretary to to enforce, after OCR determines that
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the disclosure would not constitute an not constitute an unwarranted invasion that no unfavorable effect on individual unwarranted invasion of personal of personal privacy. privacy will result from the privacy. OCR expects these IV. The fourth new routine use allows modifications and alterations to PIMS modifications will not result in any OCR to disclose information to proposed herein. unwarranted invasion of personal appropriate Federal agencies and The following notice is written in the privacy. Department contractors that have a need present, rather than the future tense, to OCR proposes to add the following to know the information for the purpose avoid the unnecessary expenditure of authority for maintenance of the PIMS of assisting the Department’s efforts to public funds to republish the notice system: section 13402 of the HITECH respond to a suspected or confirmed after the system has become effective. Act, part of the American Recovery and breach of security or confidentiality of Dated: March 30, 2010. Reinvestment Act of 2009 (Pub. L. information maintained in this system Georgina C. Verdugo, 111–5). of records, and the information OCR proposes to add the following disclosed is relevant and necessary for Director, Office for Civil Rights. three new purposes of the PIMS system: that assistance. 09–90–0052 (1) To collect, maintain, and post on the V. The fifth new routine use allows HHS Web site a list of covered entities OCR to disclose information to third SYSTEM NAME: that experience breaches of unsecured party contacts, including public and ‘‘Program Information Management protected health information affecting private organizations, to investigate System’’ (PIMS) (09–90–0052) HHS/OS/ more than 500 individuals using violations and potential violations, as OCR. information reported to the Secretary by well as to conduct compliance reviews, SECURITY CLASSIFICATION: covered entities (or a business associate of the Federal laws and regulations that on behalf of a covered entity) as OCR has legal authority to enforce. None. required by section 13402(e) of the VI. The sixth new routine use allows SYSTEM LOCATION: HITECH Act; (2) to develop an annual OCR to disclose relevant information to The automated portion of the system report to Congress, as required by the public to inform the public of the is maintained at OCR Headquarters. section 13402(i) of the HITECH Act, results of investigations and compliance Paper files are maintained in reviews of the Federal laws and regarding breach notification using headquarters and regional offices as regulations that OCR has legal authority information reported to the Secretary by noted in Appendix I. covered entities (or a business associate to enforce, after OCR determines that on behalf of a covered entity) under the disclosure would not constitute an CATEGORIES OF INDIVIDUALS COVERED BY THE section 13402(e) of the HITECH Act; and unwarranted invasion of personal SYSTEM: (3) to provide technical assistance, privacy. Covered individuals include persons training, and guidance materials OCR proposes to add the following who file complaints alleging regarding breaches of protected health category of information included in the discrimination or violation of their information. PIMS system: Information that HIPAA rights or other violations under the OCR proposes to establish the covered entities (or a business associate statutes identified below (Authority for following six new routine use on behalf of a covered entity) (defined Maintenance) and covered entities (e.g., disclosures of information for PIMS. in 45 CFR 160.103) are required to health care providers) that are Each routine use is compatible with a provide to HHS to fulfill their breach individuals and not organizations or stated purpose of the system. notification requirements to the institutions, investigated by OCR as a I. The first new routine use allows Secretary pursuant to section 13402(e) result of complaints filed or through OCR to post on its Web site, as required of the HITECH Act. This information reviews conducted by OCR. Covered by section 13402(e)(4) of the HITECH includes the name, address, and contact individuals also include persons who Act, information reported by a covered information of the covered entity or submit correspondence to OCR related entity (or a business associate on behalf business associate, as well as the contact to other compliance activities (e.g., of a covered entity) to the Secretary name of the individual at the covered outreach and public education), and pursuant to section 13402(e)(3) of the entity or business associate that other correspondence unrelated to a HITECH Act that identifies covered reported the breach of protected health complaint or review and requiring entities that experience breaches of information. responses by OCR. Covered individuals unsecured protected health information OCR will continue to collect only also include covered entities and affecting more than 500 individuals. information that is necessary to perform business associates (that are individuals II. The second new routine use allows the PIMS functions. We only disclose and not organizations or institutions), as OCR to disclose information regarding the minimum personal data necessary to defined in 45 CFR 160.103, who report breaches of unsecured protected health achieve the purpose of PIMS. Disclosure breaches of protected health information information in an annual report to of information from the system will be by submitting a breach report through Congress, as required by section approved only to the extent necessary to the HHS Web site. In addition, OCR 13402(i) of the HITECH Act, regarding accomplish the purpose of the employees that use the system to record the number and nature of the breaches disclosure. Further, OCR continues to the status of their work are covered by reported to the Secretary and actions take precautionary measures to the system. taken in response to such breaches. minimize the risks of unauthorized III. The third new routine use allows access to the records and the potential CATEGORIES OF RECORDS IN THE SYSTEM: OCR to disclose information regarding harm to individual privacy or other The system encompasses a variety of breaches of unsecured protected health individual rights. In addition, OCR records having to do with complaints, information to the public and to makes disclosures from the PIMS reviews, correspondence, and reports of appropriate Federal agencies and system only with consent of the subject breaches of protected health Department contractors to provide individual, or his/her legal information. For example, the system technical assistance, training, and representative, or in accordance with an includes records containing individual guidance materials, after OCR applicable exception provision of the names, Social Security numbers (SSN), determines that the disclosure would Privacy Act. OCR, therefore, believes tax identification numbers (TIN),
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addresses, dates of birth, provider System (CIMS), HHS/OS/OCR, 09–90– ROUTINE USES OF RECORDS MAINTAINED IN THE names and addresses, physicians’ 0050,’’ and the ‘‘Complaint File and Log, SYSTEM, INCLUDING CATEGORIES OR USERS AND names, prescriber identification HHS/OS/OCR 09–00–0051,’’ into a THE PURPOSES OF SUCH USES: numbers, assigned provider numbers single, integrated system with enhanced The Privacy Act allows us to disclose (facility, referring/servicing physician), electronic storage, retrieval and tracking information without an individual’s and/or other identification numbers of capacities that allows OCR to manage consent if the information is to be used HIPAA covered entities. more effectively the information it for a purpose that is compatible with the The complaint files and log include collects. purpose(s) for which the information complaint allegations, information was collected. Any such compatible use gathered during the complaint The system is designed to allow OCR of data is known as a ‘‘routine use.’’ The investigation, findings and results of the to integrate all of OCR’s various routine uses in this system meet the investigation, and correspondence business processes, including all its compatibility requirement of the Privacy relating to the investigation, as well as compliance activities, to allow for real Act. The following are the routine use status information for all complaints. time access and results reporting and disclosures of information maintained This component of PIMS is exempt from other varied information management in the PIMS system: the notification, access, correction and needs. PIMS provides: (1) A single, I. The first routine use for this system, amendment provisions of the Privacy central, electronic repository of all permitting disclosure to a congressional Act (see below: Systems Exempted From significant OCR documents and office, allows subject individuals to Certain Provisions of the Act). information, including investigative obtain assistance from their Equivalent types of information are files, correspondence, administrative representatives in Congress, should they maintained for reviews and records, policy and procedure manuals so desire. Such disclosure would be correspondence activities—namely, and other documents and information made only pursuant to the request of the information gathered, findings, results, developed or maintained by OCR; (2) individual. correspondence and status. easy, robust capability to search all the II. The second routine use allows information in OCR’s repository; (3) disclosure to the Department of Justice AUTHORITY FOR MAINTENANCE OF THE SYSTEM: better quality control at the front end or a court in the event of litigation. Authority for the collection, with simplified data entry and stronger III. The third routine use allows maintenance, and disclosures from this data validation; (4) tools to help staff referral to the appropriate agency, in the system is given under Title VI of the work on and manage their casework, event that a System of Records 1964 Civil Rights Act; Sections 533, 542, maintained by this agency to carry out 794, 855, 1947 and 1908 of the Public and (5) supplementary paper document its functions indicates a violation or Health Service Act; Sections 504 and files. The system has the capacity to potential violation of law. 508 of the Rehabilitation Act of 1973; generate reports concerning the status of IV. The fourth routine use allows Title II of the Americans with all current and closed complaints, disclosure of records to contractors for Disabilities Act of 1990; the Age reviews, and correspondence; track the purpose of processing or refining Discrimination Act of 1975; the Equal outreach, training, and other activities; records in the system. Employment Opportunity Provisions of and to locate and retrieve information, V. The fifth routine use allows records the Public Telecommunications and report results, in order to manage to be disclosed to student volunteers, Financing Act of 1978; Title VI and Title more efficiently OCR’s work. In individuals working under a personal XVI of the Public Health Service Act addition, PIMS allows for the tracking of services contract, and other individuals (the ‘‘community services obligation’’ of work assignments to employees to performing functions for the Department facilities funded under the Act); Title IX facilitate workload balancing, timely but technically not having the status of of the 1972 Education Amendments; response to complaints and completion agency employees, if they need access to Section 407 of the Drug Abuse Office of reviews, and outreach and public the records in order to perform their and Treatment Act; Section 321 of the education initiatives focused on assigned agency functions. Comprehensive Alcohol Abuse and organizations and individuals. Alcoholism Prevention, Treatment, and VI. The sixth routine use allows PIMS also is used by OCR: (1) To referrals of Age Discrimination Act Rehabilitation Act of 1970; Section 508 collect, maintain, and post on the HHS of the Social Security Act; the Family complaints to the Federal Mediation Web site a list of covered entities that and Conciliation Service (FMCS) for Violence Prevention and Services Act; experience breaches of unsecured Low-Income Home Energy Assistance purposes of mediation. protected health information affecting VII. The seventh routine use allows Act of 1981; Section 1808 of the Small more than 500 individuals using Business Job Protection Act of 1996; the OCR to post on its Web site, as required information reported to the Secretary by by section 13402(e)(4) of the HITECH Health Insurance Portability and covered entities (or a business associate Accountability Act of 1996; the Patient Act, information reported by a covered on behalf of a covered entity) as entity (or a business associate on behalf Safety and Quality Improvement Act of required by section 13402(e) of the 2005 (Patient Safety Act); and section of a covered entity) to the Secretary HITECH Act; (2) to develop an annual pursuant to section 13402(e)(3) of the 13402 of the Health Information report to Congress, as required by Technology for Economic and Clinical HITECH Act that identifies covered section 13402(i) of the HITECH Act, Health (HITECH) Act. entities that experience breaches of regarding breach notification using unsecured protected health information PURPOSE(S) OF THE SYSTEM: information reported to the Secretary by affecting more than 500 individuals. PIMS is used by OCR staff and covered entities (or a business associate VIII. The eighth routine use allows consists of an electronic repository of on behalf of a covered entity) pursuant OCR to disclose information regarding information and documents, and to section 13402(e) of the HITECH Act; breaches of unsecured protected health supplementary paper document files. and (3) to provide technical assistance, information in an annual report to PIMS effectively combines and replaces training, and guidance regarding Congress, as required by section OCR’s two previous systems of records, breaches of protected health 13402(i) of the HITECH Act, regarding the ‘‘Case Information Management information. the number and nature of the breaches
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reported to the Secretary and actions the Paperwork Reduction Act of 1995, based on need as described above for taken in response to such breaches. the Clinger-Cohen Act of 1996, and the automated component of the PIMS IX. The ninth routine use allows OCR OMB Circular A–130, Appendix, III, system. to disclose information regarding ‘‘Security of Federal Automated breaches of unsecured protected health Information Resources.’’ OCR has RETENTION AND DISPOSAL: information to the public and to prepared a system security plan as Documents related to breaches are appropriate Federal agencies and required by OMB Circular A–130, retained at OCR for two years from the Department contractors to provide Appendix III. This plan conforms fully date the breach is reported and then are technical assistance, training, and to guidance issued by the National archived at the National Archives and guidance materials, after OCR Institute for Standards and Technology Records Administration for 15 years. determines that the disclosure would (NIST) in NIST Special Publication Correspondence is retained for one year not constitute an unwarranted invasion 800–18, ‘‘Guide for Developing Security following the end of the fiscal year in of personal privacy. Plans for Information Technology which processed. X. The tenth routine use allows OCR Systems.’’ The plan includes conduct of to disclose information to appropriate a risk assessment that addresses the SYSTEM MANAGER AND ADDRESS: Federal agencies and Department confidentiality and integrity of the data. PIMS Project Manager, Management contractors that have a need to know the Only authorized users have access to the Operations Division, Office for Civil information for the purpose of assisting information in the system. Categories of Rights, 200 Independence Ave., SW., the Department’s efforts to respond to a users include: OCR investigators, Room 509F, Washington, DC 20201. suspected or confirmed breach of regional and headquarters managers, security or confidentiality of team leaders, OCR budget and NOTIFICATION PROCEDURE: information maintained in this system Government Performance and Results Contact System Manager (above). of records, and the information Act planning staff, program and policy Include name and address of disclosed is relevant and necessary for staff, and data analysts. Specific access complainant, and name of the recipient that assistance. is structured around need and is against which the allegation was filed. XI. The eleventh routine use allows determined by the person’s role in the The Department is exempting all OCR to disclose information to third organization. Access is managed investigative records from this provision party contacts, including public and through the use of electronic access (see below: Records Exempted). private organizations, to investigate control lists, which regulate the ability violations and potential violations, as to read, change, and delete information RECORD ACCESS PROCEDURE: in the system. Each OCR user has read well as to conduct compliance reviews, Same as notification procedures. access to designated information in the of the Federal laws and regulations that Requesters also should reasonably system, with the ability to modify only OCR has legal authority to enforce. specify the record contents being their own submissions or those of others XII. The twelfth routine use allows sought. Requests should be made to the within their region or group. Data OCR to disclose relevant information to system manager (above). The identified as confidential is so the public to inform the public of the Department is exempting all designated and only specified results of investigations and compliance investigative records from this reviews of the Federal laws and individuals are granted access. The system maintains an audit trail of all provision. (See below: Records regulations that OCR has legal authority Exempted). to enforce, after OCR determines that actions against the data base. the disclosure would not constitute an All electronic data is stored on servers CONTESTING RECORD PROCEDURE: maintained in locked facilities with unwarranted invasion of personal Contact the official(s) at the address privacy. computerized access control allowing access to only those support personnel specified under System Manager, and POLICIES AND PRACTICES FOR STORING, with a demonstrated need for access. A reasonably identify the record and RETRIEVING, ACCESSING, RETAINING, AND database is kept of all individuals specify the information to be contested DISPOSING OF RECORDS IN THE SYSTEM: granted security card access to the room, and corrective action sought with STORAGE: and all visitors are escorted while in the supporting justification. (These procedures are in accordance with Automated records are maintained on room. The server facility has Department Regulations (45 CFR 5b.7) magnetic disc and tape back-up. Paper appropriate environmental security The Department is exempting all records are kept in file folders. controls, including measures to mitigate damage to automated information investigative records from this provision RETRIEVABILITY: system resources caused by fire, (see below: Records Exempted). Records are indexed by transaction electricity, water, and inadequate RECORD SOURCE CATEGORIES: number, but may be retrieved by name, climate controls. street address, and other complainant, Access control to servers, individual Information is provided by covered entity, or business associate computers, and databases includes a complainants, covered entities, and characteristic (such as type of entity, required user log-on with a password, business associates. city, state, and type of service provided). inactivity lockout to systems based on a specified period of time, legal notices SYSTEM RECORDS EXEMPTED FROM CERTAIN SAFEGUARDS: and security warnings at log-on, and PROVISIONS OF THE ACT: The PIMS system conforms to remote access security that allows user OCR investigative records maintained applicable law and policy governing the access for remote users (e.g., while on in PIMS, either as paper records or privacy and security of Federal government travel) under the same electronic documents, are records automated information systems. These terms and conditions as for users within compiled for law enforcement purposes include but are not limited to: the the office. System administrators have and are exempt under subsection (k)(2) Privacy Act of 1974, Federal appropriate security clearance. Printed from the notification, access, correction, Information Security Management Act materials are filed in secure cabinets in and amendment provisions of the of 2002, Computer Security Act of 1987, secure Federal buildings with access Privacy Act.
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APPENDIX NUMBER 1—SYSTEM LOCATIONS: DEPARTMENT OF HEALTH AND cooperative agreement program, CDC This system is located at HHS offices HUMAN SERVICES provides funding to oral health in the following cities: programs in states and territories. Centers for Disease Control and Headquarters, PIMS Project Manager, The CDC collects information from Prevention Management Operations Division, awardees to support oral health program Office for Civil Rights, 200 [30Day–10–0739] management, consulting and evaluation. Independence Ave., SW., Room 509F, The information collection is supported Washington, DC 20201. Agency Forms Undergoing Paperwork by an electronic management Region I, Regional Manager, OCR/ Reduction Act Review information system (MIS) known as the HHS, J.F. Kennedy Federal Building— The Centers for Disease Control and Management Overview for Logistics, Room 1875 Boston, MA 02203. Prevention (CDC) publishes a list of Analysis, and Reporting (MOLAR) Region II, Regional Manager, OCR/ information collection requests under system. The MIS provides a centralized, HHS, 26 Federal Plaza—Suite 3312, review by the Office of Management and standardized and searchable repository New York, NY 10278. Budget (OMB) in compliance with the of information about each awardee’s Region III, Regional Manager, OCR/ Paperwork Reduction Act (44 U.S.C. objectives, programmatic activities, HHS, 150 S. Independence Mall West, Chapter 35). To request a copy of these performance indicators, and financial Suite 372, Public Ledger Building, requests, call the CDC Reports Clearance status. Philadelphia, PA 19106–9111. Officer at (404) 639–5960 or send an e- CDC requests OMB approval to Region IV, Regional Manager, OCR/ mail to [email protected]. Send written continue the electronic collection of HHS, Atlanta Federal Center, Suite comments to CDC Desk Officer, Office of information for three years. The 3B70, 61 Forsyth Street, SW., Atlanta, Management and Budget, Washington, information collected will continue to GA 30303–8909. DC or by fax to (202) 395–5806. Written facilitate CDC’s ability to monitor, Region V, Regional Manager, OCR/ comments should be received within 30 evaluate, and compare individual HHS, 233 N. Michigan Ave, Suite 240, days of this notice. programs; provide technical assistance Chicago, IL 60601. Proposed Project to states and territories; share and Region VI, Regional Manager, OCR/ disseminate lessons learned; assess and HHS, 1301 Young Street, Suite 1169, CDC Oral Health Management report aggregate information regarding Dallas, TX 75202. Information System (OMB no. 0920– the overall effectiveness of oral health Region VII, Regional Manager, OCR/ 0739, exp. 6/30/2010)—Revision— infrastructure and capacity at the state HHS, 601 E. 12th Street—Room 248, Division of Oral Health, National Center and territorial level; and monitor Kansas City, MO 64106. for Chronic Disease Prevention and national progress toward meeting Region VIII, Regional Manager, OCR/ Health Promotion (NCCDPHP), Centers Healthy People goals. HHS, Federal Office Building, 1961 for Disease Control and Prevention (CDC). Information will be collected Stout Street—Room 1426 FOB, Denver, electronically twice per year. No CO 80294–3538. Background and Brief Description changes to the MIS or the estimated Region IX, Regional Manager, OCR/ The CDC seeks to improve the oral burden per response are proposed. HHS, 90 7th Street, Suite 4–100, San health of the nation by targeting efforts There is an increase in the total Francisco, CA 94103. to improve the infrastructure of state estimated annualized burden due to an Region X, Regional Manager, OCR/ and territorial oral health departments, increase in the number of CDC-funded HHS, 2201 Sixth Avenue— M/S: RX–11, developing effective programs to oral health programs. There are no costs Seattle, WA 98121–2290. improve the oral health of children and to respondents other than their time. [FR Doc. 2010–8412 Filed 4–12–10; 8:45 am] adults, and reducing health disparities The total estimated annualized burden BILLING CODE 4153–01–P among high-risk groups. Through a hours are 462.
ESTIMATED ANNUALIZED BURDEN HOURS
Average bur- Number of Number of re- den per re- Type of respondents respondents sponses per sponse respondent (in hours)
State Oral Health Programs ...... 21 2 11
Dated: April 6, 2010. DEPARTMENT OF HEALTH AND Description: This proposed Maryam I. Daneshvar, HUMAN SERVICES information collection activity is to Acting Reports Clearance Officer, Centers for obtain evaluation information from Disease Control and Prevention. Administration for Children and Strengthening Communities Fund (SCF) Families [FR Doc. 2010–8441 Filed 4–12–10; 8:45 am] grantees. Grantees include participants in two SCF grant programs contributing BILLING CODE 4163–18–P Agency Recordkeeping/Reporting Requirements Under Emergency to the economic recovery as authorized Review by the Office of Management in the American Recovery and and Budget (OMB) Reinvestment Act of 2009 (ARRA). The SCF evaluation is an important Title: Strengthening Communities opportunity to examine the outcomes Fund Program Evaluation. achieved by the Strengthening OMB No.: New Collection. Communities Fund in meeting its
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objective of improving the capacity of organizational capacity of grantees in Respondents: SCF Grantees (both the grantees that include Nonprofit each of the two SCF programs. The Nonprofit Capacity Building Program organizations and State, Local and purpose of this request will be to and the Government Capacity Building Tribal Governments. The evaluation for establish the approved baseline Program) made up of State, local, and each program will be designed to assess instruments for follow-up data Tribal governments, as well as nonprofit progress and measure increased collection. organizations.
ANNUAL BURDEN ESTIMATES
Number of re- Average bur- Instrument Number of sponses per den hours per Total burden respondents respondent response hours
Nonprofit Capacity Building Program Performance Progress Report (PPR) .. 35 4 1 140 Government Capacity Building PPR ...... 49 4 1 196
Estimated Total Annual Burden Washington, DC 20503, FAX (202) 395– is the procedure by which States request Hours: 336. 6974. and obtain approval for Federal financial participation in their cost of Robert Sargis, Additional Information acquiring Automatic Data Processing Reports Clearance Officer. (ADP) equipment and services. State ACF is requesting that OMB grant a [FR Doc. 2010–8251 Filed 4–12–10; 8:45 am] 180 day approval for this information agencies that submit APD requests BILLING CODE 4184–01–M collection under procedures for provide the Department of Health and Human Services (HHS) with the emergency processing by April 15, 2010. following information necessary to A copy of this information collection, DEPARTMENT OF HEALTH AND determine the States’ needs to acquire with applicable supporting HUMAN SERVICES the requested ADP equipment and/or documentation, may be obtained by services: calling the Administration for Children Administration for Children and Families (1) A statement of need; and Families, Reports Clearance Officer, (2) A requirements analysis and Robert Sargis at (202) 690–7275. Proposed Information Collection feasibility study; Comments and questions about the Activity; Comment Request (3) A cost benefit analysis; information collection described above (4) A proposed activity schedule; and, should be directed to the Office of Proposed Projects (5) A proposed budget. Information and Regulatory Affairs, Title: ADP & Services Conditions for HHS’ determination of a State Attn: OMB Desk Officer for ACF, Office FFP for ACF. Agency’s need to acquire requested ADP of Management and Budget, Paperwork OMB No.: 0992–0005. equipment or services is authorized at Reduction Project, 725 17th Street, NW., Description: The Advance Planning sections 402(a)(5), 452(a)(1), 1902(a)(4), Document (APD) process, established in and 1102 of the Social Security Act. the rules at 45 CFR part 95, subpart F, Respondents: States.
ANNUAL BURDEN ESTIMATES
Number of re- Average bur- Instrument Number of sponses per den hours per Total burden respondents respondent response hours
Advance Planning Document ...... 50 1.84 60 5,520 RFP and Contract ...... 50 1.54 1.50 115.50 Emergency Funding Request ...... 27 1 1 27 Service Agreements ...... 14 1 1 14 Biennial Reports ...... 50 1 1.50 75
Estimated Total Annual Burden L’Enfant Promenade, SW., Washington, the quality, utility, and clarity of the Hours: 5,751.50 DC 20447, Attn: ACF Reports Clearance information to be collected; and (d) In compliance with the requirements Officer. E-mail address: ways to minimize the burden of the of section 506(c)(2)(A) of the Paperwork [email protected]. All requests collection of information on Reduction Act of 1995, the should be identified by the title of the respondents, including through the use Administration for Children and information collection. of automated collection techniques or Families is soliciting public comment The Department specifically requests other forms of information technology. on the specific aspects of the comments on: (a) Whether the proposed Consideration will be given to information collection described above. collection of information is necessary comments and suggestions submitted Copies of the proposed collection of for the proper performance of the within 60 days of this publication. information can be obtained and functions of the agency, including comments may be forwarded by writing whether the information shall have to the Administration for Children and practical utility; (b) the accuracy of the Families, Office of Administration, agency’s estimate of the burden of the Office of Information Services, 370 proposed collection of information; (c)
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Dated: April 8, 2010. be scheduled between approximately 4 Association; the Centers for Drug Robert Sargis, p.m. and 4:30 p.m. Time allotted for oral Evaluation and Research and Biologics Reports Clearance Officer. presentations may be limited to 10 Evaluation and Research, FDA; and the [FR Doc. 2010–8426 Filed 4–12–10; 8:45 am] minutes. Those desiring to make oral Pharmaceutical Research and BILLING CODE 4184–01–P presentations should notify the contact Manufacturers of America. The ICH person by April 30, 2010, and submit a Secretariat, which coordinates the brief statement of the general nature of preparation of documentation, is DEPARTMENT OF HEALTH AND the evidence or arguments they wish to provided by the International HUMAN SERVICES present, the names and addresses, Federation of Pharmaceutical phone number, fax, and e-mail of Manufacturers Associations (IFPMA). Food and Drug Administration proposed participants, and an The ICH Steering Committee includes [Docket No. FDA–2010–N–0001] indication of the approximate time representatives from each of the ICH requested to make their presentation. sponsors and Health Canada, the Preparation for International The agenda for the public meeting European Free Trade Area, and the Conference on Harmonisation Steering will be made available via the Internet World Health Organization. The ICH Committee and Expert Working Group at: http://www.fda.gov/Drugs/ process has achieved significant Meetings in Tallinn, Estonia; Regional NewsEvents/ucm204924.htm. harmonization of the technical Public Meeting If you need special accommodations requirements for the approval of due to a disability, please contact pharmaceuticals for human use in the AGENCY: Food and Drug Administration, Jennifer Haggerty at least 7 days in three ICH regions. HHS. advance. The current ICH process and structure ACTION: Notice of meeting. Transcripts: Please be advised that as can be found at the following Web site: soon as a transcript is available, it can http://www.ich.org. SUMMARY: The Food and Drug be obtained in either hardcopy or on Administration (FDA) is announcing a Dated: April 5, 2010. CD–ROM, after submission of a public meeting entitled ‘‘Preparation for Leslie Kux, Freedom of Information request. Written ICH Steering Committee and Expert Acting Assistant Commissioner for Policy. requests are to be sent to Division of Working Group Meetings in Tallinn, [FR Doc. 2010–8379 Filed 4–12–10; 8:45 am] Freedom of Information (HFI–35), Office Estonia’’ to provide information and BILLING CODE 4160–01–S of Management Programs, Food and receive comments on the International Drug Administration, 5600 Fishers Conference on Harmonisation (ICH) as Lane, rm. 6–30, Rockville, MD 20857. well as the upcoming meetings in DEPARTMENT OF HEALTH AND Tallinn, Estonia. The topics to be SUPPLEMENTARY INFORMATION: The ICH HUMAN SERVICES discussed are the topics for discussion was established in 1990 as a joint at the forthcoming ICH Steering regulatory/industry project to improve, Centers for Disease Control and Committee Meeting. The purpose of the through harmonization, the efficiency of Prevention meeting is to solicit public input prior the process for developing and registering new medicinal products in Disease, Disability, and Injury to the next Steering Committee and Prevention and Control Special Expert Working Group meetings in Europe, Japan, and the United States without compromising the regulatory Emphasis Panel (SEP): Prevention Tallinn, Estonia, June 5 through 10, Research Centers Comparative 2010, at which discussion of the topics obligations of safety and effectiveness. In recent years, many important Effectiveness Research Program, DP underway and the future of ICH will 10–003, Initial Review continue. initiatives have been undertaken by Date and Time: The meeting will be regulatory authorities and industry In accordance with Section 10(a)(2) of held on Wednesday, May 5, 2010, from associations to promote international the Federal Advisory Committee Act 2:30 p.m. to 4:30 p.m. harmonization of regulatory (Pub. L. 92–463), the Centers for Disease Location: The meeting will be held at requirements. FDA has participated in Control and Prevention (CDC) the Washington Theater at the Hilton many meetings designed to enhance announces the aforementioned meeting: harmonization and is committed to Washington DC/Rockville Hotel & Times and Dates: 8:30 a.m.–6 p.m., May 4, Executive Meeting Center, 1750 seeking scientifically based harmonized 2010 (Closed); 8:30 a.m.–5 p.m., May 5, 2010 Rockville Pike, Rockville, MD 20852. technical procedures for pharmaceutical (Closed). Contact Person: All participants must development. One of the goals of Place: W Hotel, 1111 Perimeter Center W., register with Jennifer Haggerty, Office of harmonization is to identify and then Atlanta, GA 30346. the Commissioner, Food and Drug reduce differences in technical Telephone: (770) 396–6800. Administration, 5600 Fishers Lane, requirements for medical product Status: The meeting will be closed to the Rockville, MD 20857, by e-mail: development among regulatory public in accordance with provisions set agencies. ICH was organized to provide forth in Section 552b(c)(4) and (6), Title 5 [email protected] or FAX: U.S.C., and the Determination of the Director, 301–827–0003. an opportunity for harmonization Management Analysis and Services Office, Registration and Requests for Oral initiatives to be developed with input CDC, pursuant to Public Law 92–463. Presentations: Send registration from both regulatory and industry Matters To Be Discussed: The meeting will information (including name, title, firm representatives. ICH is concerned with include the initial review, discussion, and name, address, telephone, and fax harmonization among three regions: The evaluation of applications received in number), written material and requests European Union, Japan, and the United response to ‘‘Prevention Research Centers to make oral presentations, to the States. The six ICH sponsors are the Comparative Effectiveness Research Program, ’’ European Commission; the European DP 10–003. contact person by April 30, 2010. Contact Person for More Information: Interested persons may present data, Federation of Pharmaceutical Industries Donald Blackman, PhD, Scientific Review information, or views orally or in Associations; the Japanese Ministry of Officer, National Center for Chronic Disease writing, on issues pending at the public Health, Labor and Welfare; the Japanese Prevention and Health Promotion, Office of meeting. Public oral presentations will Pharmaceutical Manufactures the Director, Extramural Research Program
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Office, 4770 Buford Highway, NE., Mailstop 10903 New Hampshire Ave., Bldg. 66, MedicalDevices/NewsEvents/ K–92, Atlanta, GA 30341, Telephone: (770) rm. 1110, Silver Spring, MD 20993, WorkshopsConferences/default.htm 488–3023, E-mail: [email protected]. 301–796–6309, The Director, Management Analysis and Dated: April 7, 2010. Services Office, has been delegated the [email protected]. Jeffrey Shuren, Registration: To register for the public authority to sign Federal Register notices Director, Center for Devices and Radiological pertaining to announcements of meetings and workshop and optional session, please Health. other committee management activities, for visit the following Web site: http:// [FR Doc. 2010–8311 Filed 4–12–10; 8:45 am] both CDC and the Agency for Toxic scpd.stanford.edu/ Substances and Disease Registry. publicViewHome.do?method=load. BILLING CODE 4160–01–S Dated: April 5, 2010. There is a registration fee to attend the Elaine L. Baker, public workshop to cover the expenses DEPARTMENT OF HEALTH AND Director, Management Analysis and Services and attendees must register in advance. HUMAN SERVICES Office, Centers for Disease Control and The fee for the meeting is $350. Prevention. Students will be offered a discounted Food and Drug Administration fee of $175. The exhibitors’ fee is $600 [FR Doc. 2010–8442 Filed 4–12–10; 8:45 am] [Docket No. FDA–2010–D–0183] BILLING CODE 4163–18–P and includes registration of one person. Fees will be waived for invited speakers Small Entity Compliance Guide: and the organizing committee. The Prevention of Salmonella Enteritidis in DEPARTMENT OF HEALTH AND registration process will be handled by Shell Eggs During Production, HUMAN SERVICES the Stanford Center for Professional Storage, and Transportation; Development. Although the facility is Availability Food and Drug Administration spacious, registration will be on a first- [Docket No. FDA–2010–N–0001] come, first-served basis. AGENCY: Food and Drug Administration, If you need special accommodations HHS. Food and Drug Administration/National because of a disability, please contact ACTION: Notice. Heart Lung and Blood Institute/ Donna R. Lochner at least 7 days before National Science Foundation the public workshop. SUMMARY: The Food and Drug Workshop on Computer Methods for SUPPLEMENTARY INFORMATION: Administration (FDA) is announcing the Cardiovascular Devices: The availability of a guidance entitled Integration of Nonclinical and Clinical I. Why Are We Holding This Public ‘‘Prevention of Salmonella Enteritidis in Models; Public Workshop Workshop? Shell Eggs During Production, Storage, The purpose of the public workshop and Transportation—Small Entity AGENCY: Food and Drug Administration, is to facilitate discussion between FDA Compliance Guide.’’ The small entity HHS. and other interested parties on the use compliance guide (SECG) is being ACTION: Notice of public workshop. of computational modeling in issued for a final rule published in the Federal Register of July 9, 2009, and is SUMMARY: The Food and Drug cardiovascular device design, development, and evaluation. intended to set forth in plain language Administration (FDA) is announcing a the requirements of the regulation and ‘‘ public workshop entitled FDA/NHLBI/ II. What Are the Topics We Intend to to help small businesses understand the NSF Workshop on Computer Methods Address at the Public Workshop? regulation. Elsewhere in this issue of the for Cardiovascular Devices: The We hope to discuss a large number of Federal Register, FDA is amending its Integration of Nonclinical and Clinical July 9, 2009, regulation to correct the Models.’’ The workshop will include a issues at the public workshop, with our overall theme being the integration of date by which producers must register smaller, optional session entitled their farm with FDA, reflect a change in ‘‘Microstructure Modeling Session.’’ computer and nonclinical models. Topics include, but are not limited to the address and telephone number for FDA is cosponsoring the workshop with requesting copies of Form No. 3733, and the National Heart Lung and Blood the following: • Multiscale, multiphysics, and reflect a change in the address to which Institute of the National Institutes of producers must send their CD–ROM. Health and the National Science multiphase modeling; • DATES Foundation. The purpose of the Modeling of cardiovascular diseases : Submit electronic or written workshop is to facilitate discussion and therapies; comments on the SECG at any time. between FDA and other interested • Patient-specific modeling, ADDRESSES: Submit electronic parties on the use of computational including virtual surgical planning and comments on the SECG to http:// modeling in the design, development, predictive biomedicine; www.regulations.gov. Submit written and evaluation of cardiovascular • Open source projects, including comments on the SECG to the Division medical devices. public policy initiatives, database of Dockets Management (HFA–305), Dates and Times: The optional development and data presentation, and Food and Drug Administration, 5630 session will be held on June 9, 2010, standards and protocols; and Fishers Lane, rm. 1061, Rockville, MD from 1 p.m. to 5:30 p.m. and the public • Regulatory issues with 20852. Submit written requests for workshop will be held on June 10 and implementation of computer modeling. single copies of the SECG to the Division of Plant and Dairy Food Safety/ 11, 2010, from 8 a.m. to 5 p.m. III. Where Can I Find Out More About Location: The public workshop and Office of Food Safety, Center for Food This Public Workshop? optional session will be held at the Safety and Applied Nutrition (HFS– Hilton Washington DC/Rockville Background information on the public 315), Food and Drug Administration, Executive Meeting Center, 1750 workshop, registration information, the 5100 Paint Branch Pkwy., College Park, Rockville Pike, Rockville, MD 20852. agenda, information about lodging, and MD 20740, or fax your request to 301– Contact Person: Donna R. Lochner, other relevant information will be 436–1070. Send two self-addressed Center for Devices and Radiological posted, as it becomes available, on the adhesive labels to assist that office in Health, Food and Drug Administration, Internet at http://www.fda.gov/ processing your request. See the
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SUPPLEMENTARY INFORMATION section for modify, or disapprove the information are in this notice. The purpose of this electronic access to the SECG. collection provisions in this final rule. notice is to solicit additional comments FOR FURTHER INFORMATION CONTACT: An agency may not conduct or sponsor, during a 30-day public comment period Nancy S. Bufano, Center for Food Safety and a person is not required to respond prior to the submission of this collection and Applied Nutrition (HFS–315), Food to, a collection of information unless it to OMB. The submission describes the and Drug Administration, 5100 Paint displays a currently valid OMB control nature of the information collection, the Branch Pkwy., College Park, MD 20740, number. categories of respondents, the estimated burden, and cost. 301–436–1493. III. Comments SUPPLEMENTARY INFORMATION: DATES: Comments are encouraged and Interested persons may submit to the will be accepted until May 13, 2010. I. Background Division of Dockets Management (see This process is conducted in accordance In the Federal Register of July 9, 2009 ADDRESSES) electronic or written with 5 CFR 1320.8. comments regarding this SECG. Submit (74 FR 33030), FDA issued a final rule ADDRESSES: Interested persons are requiring shell egg producers to a single copy of electronic comments or two paper copies of any mailed invited to submit comments on the implement measures to prevent proposed information collection Salmonella Enteritidis (SE) from comments, except that individuals may submit one paper copy. Comments are through the Federal Rulemaking Portal contaminating eggs on the farm and at http://www.regulations.gov. Follow from further growth during storage and to be identified with the docket number found in brackets in the heading of this the instructions for submitting transportation, and requiring these comments. Comments must be producers to maintain records document. The SECG and received comments may be seen in the Division identified by docket number DHS– concerning their compliance with the 2009–0026. rule and to register with FDA. The final of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday. Comments that include trade secrets, rule became effective September 8, confidential commercial or financial 2009. IV. Electronic Access information, Chemical-terrorism FDA examined the economic Persons with access to the Internet Vulnerability Information (CVI), implications of the final rule as required may obtain the document at http:// Sensitive Security Information (SSI), or by the Regulatory Flexibility Act (5 www.fda.gov/FoodGuidances or http:// Protected Critical Infrastructure U.S.C. 601–612) and determined that www.regulations.gov. Information (PCII) should not be the final rule will have a significant submitted to the public regulatory Dated: April 7, 2010. economic impact on a substantial docket. Please submit such comments number of small entities. In compliance Leslie Kux, separately from other comments in with section 212 of the Small Business Acting Assistant Commissioner for Policy. response to this notice. Comments Regulatory Enforcement Fairness Act [FR Doc. 2010–8359 Filed 4–12–10; 8:45 am] containing trade secrets, confidential (Public Law 104–121), FDA is making BILLING CODE 4160–01–S commercial or financial information, available this SECG stating in plain CVI, SSI, or PCII should be language the requirements of the appropriately marked and submitted by regulation. DEPARTMENT OF HOMELAND mail to the DHS/NPPD/IP/ISCD CFATS FDA is issuing this SECG as level 2 SECURITY Program Manager at the Department of guidance consistent with FDA’s good [Docket No. DHS–2009–0026] Homeland Security, 245 Murray Lane, guidance practices regulation (21 CFR SW., Mail Stop 0610, Arlington, VA 10.115(c)(2)). The SECG represents National Protection and Programs 20528–0610. Comments must be FDA’s current thinking on the Directorate; Chemical Facility Anti- identified by docket number DHS– prevention of SE in shell eggs. It does Terrorism Standards Personnel Surety 2009–0026. not create or confer any rights for or on Program FOR FURTHER INFORMATION CONTACT: A any person and does not operate to bind copy of this ICR, with applicable FDA or the public. An alternative AGENCY: National Protection and supporting documentation, may be approach may be used if such approach Programs Directorate, DHS. obtained through the Federal satisfies the requirements of the ACTION: 30-day notice and request for Rulemaking Portal at http:// applicable statutes and regulations. comments: New information collection www.regulations.gov. II. Paperwork Reduction Act of 1995 request 1670–NEW. SUPPLEMENTARY INFORMATION: This SECG refers to collections of SUMMARY: The Department of Homeland information described in FDA’s final Security (DHS), National Protection and Program Description rule that published in the Federal Programs Directorate (NPPD), Office of The Chemical Facility Anti-Terrorism Register of July 9, 2009 (74 FR 33030 at Infrastructure Protection (IP), Standards (CFATS), 6 CFR part 27, 33089), and that became effective on Infrastructure Security Compliance require high-risk chemical facilities to September 8, 2009. As stated in the final Division (ISCD) will be submitting the submit information about facility rule, these collections of information are following information collection request personnel and, as appropriate, subject to review by the Office of (ICR) to the Office of Management and unescorted visitors with access to Management and Budget (OMB) under Budget (OMB) for review and clearance restricted areas or critical assets at those the Paperwork Reduction Act of 1995 in accordance with the Paperwork facilities. This information will be (the PRA) (44 U.S.C. 3501–3520). In Reduction Act of 1995 (PRA). The vetted by the Federal Government compliance with the PRA (44 U.S.C. information collection is a new against the Terrorist Screening Database 3507(d)), the agency has submitted the information collection. A 60-day public (TSDB), the consolidated and integrated information collection provisions of the notice for comments was previously terrorist watchlist maintained by the final rule to OMB for review. FDA will published in the Federal Register on Federal Government, to identify known publish a notice in the Federal Register June 10, 2009, at 74 FR 27555. or suspected terrorists (i.e., individuals announcing OMB’s decision to approve, Comments were received and responses with terrorist ties).
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High-risk chemical facilities must also the information is (1) true, correct, and • Citizenship perform other relevant background complete, and (2) collected and • Passport information checks in compliance with CFATS submitted in compliance with the • Visa information Personnel Surety Risk-Based facility’s Site Security Plan (SSP). The • Alien registration number • Performance Standard 12 (RBPS–12). representative(s) of each high-risk DHS Redress Number (if available) • Work phone number(s) See 6 CFR 27.230(a)(12)(i–iii): High-risk chemical facility will also affirm that • chemical facilities must ‘‘perform notice required by the Privacy Act of Work e-mail address(es) appropriate background checks * * * 1974, 5 U.S.C. 552a, has been given to DHS will collect information that including (i) Measures designed to affected individuals before their identifies the high-risk chemical facility verify and validate identity; (ii) information is submitted to DHS. or facilities, to which the affected Measures designed to check criminal DHS will send a verification of individual has access to restricted areas history; [and] (iii) Measures designed to submission to the representative(s) of or critical assets. As applicable, DHS verify and validate legal authorization to each high-risk chemical facility when a will also collect information to verify work.’’ The CFATS Personnel Surety high-risk chemical facility (1) Submits that an affected individual is currently Program is not intended to halt, hinder, information about an affected individual enrolled in a DHS program which relies or replace high-risk chemical facilities’ for the first time, (2) submits updated or on DHS-performed TSDB checks, in performance of background checks corrected information about an affected addition to other program-specific which are currently required for individual, and/or (3) notifies DHS that requirements. employment or access to secure areas of an affected individual no longer has DHS may request additional those facilities. access to that facility’s restricted areas information on an affected individual to or critical assets. confirm that the individual is or is not Background Upon receipt of each affected a match to a known or suspected On October 4, 2006, the President individual’s information in CSAT, DHS terrorist in the TSDB. DHS may signed the Department of Homeland will send a copy of the information to randomly select a small percentage of Security Appropriations Act of 2007 TSA. Within TSA, the Office of affected individuals for further (the Act), Public Law 109–295. Section Transportation Threat Assessment and verification as part of data accuracy 550 of the Act provides DHS with the Credentialing (TTAC) conducts review and auditing processes. In order authority to regulate the security of screening and vetting of information to assist with this confirmation and high-risk chemical facilities. against the TSDB for many DHS verification, DHS may request Section 550 requires that DHS programs. On behalf of DHS, TTAC will additional information on affected regulations establish CFATS RBPS. compare the information of affected individuals from the high-risk chemical RBPS–12 (6 CFR 27.230(a)(12)(iv)) individuals collected by DHS to the facilities which have submitted their requires that regulated chemical information of known or suspected information to the Department. DHS facilities implement ‘‘measures designed terrorists on the TSDB. TTAC will may also collect information about to identify people with terrorist ties.’’ forward the results from potential points of contact at each high-risk The ability to identify individuals with matches to the Federal Bureau of chemical facility, and which points of terrorist ties requires the use of Investigation’s Terrorist Screening contact the Department or Federal law information held in Government- Center (TSC), which will make a final enforcement personnel may contact maintained databases, which are determination of whether an individual with follow-up questions. However, a unavailable to high-risk chemical is a match to a known or suspected request for additional information from facilities. Therefore, DHS is terrorist listed in the TSDB. DHS does not imply, and should not be implementing the CFATS Personnel In the event that there is a positive construed to indicate, that an individual Surety Program, which will allow match to an identity in the TSDB, the is known or suspected to be associated chemical facilities to comply with TSC will notify the appropriate Federal with terrorism. RBPS–12 by implementing ‘‘measures law enforcement agency for DHS may collect information on designed to identify people with coordination, investigative action, and/ affected individuals as necessary to terrorist ties.’’ or response, as appropriate. DHS will enable it to provide redress for individuals who believe that they have Overview of CFATS Personnel Surety neither routinely provide vetting results been improperly impacted by the Process to high-risk chemical facilities, nor will it provide results to an affected Personnel Surety Program. The The CFATS Personnel Surety Program individual whose information was information collected may include will work with the DHS Transportation submitted by a high-risk chemical information necessary to conduct Security Administration (TSA) to facility. As warranted, high-risk adjudications under subpart C of identify individuals who have terrorist chemical facilities may be contacted by CFATS, 6 CFR 27.300–27.345. ties by comparing information the Department or Federal law DHS will also collect administrative submitted by each high-risk chemical enforcement as a part of appropriate law or programmatic information (e.g., facility to the information of known or enforcement investigation activity. (See affirmations or certifications of suspected terrorists who are listed in the the amendment to the FBI’s Terrorist compliance, extension requests, brief TSDB. Screening Records System, published in surveys for process improvement, etc.) Information will be submitted to DHS the Federal Register on August 22, necessary to manage the CFATS through the Chemical Security 2007, at 72 FR 47073.) Personnel Surety Program. Assessment Tool (CSAT), the online data collection portal for CFATS. The Information Collected Affected Population representative(s) of each high-risk DHS may collect the following 6 CFR 27.230(a)(12) requires facility chemical facility will submit the information from individuals: personnel and, as appropriate, information of affected individuals to • Full name unescorted visitors who have access to DHS through CSAT. The • Date of birth restricted areas or critical assets to representative(s) of each high-risk • Place of birth undergo background checks. This chemical facility will also certify that • Gender affected population will include (1)
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facility personnel (e.g., employees and affected individuals. If this exception is chemical facility becomes aware that an contractors) who have access, either granted, DHS will be relieved of the affected individual has changed his/her unescorted or otherwise, to restricted potential obligation to require high-risk name), the high-risk chemical facility areas or critical assets, and (2) chemical facilities to collect signatures must update the submitted information. unescorted visitors who have access to or other positive affirmations of these DHS will also require a high-risk restricted areas or critical assets. notices from affected individuals. chemical facility to correct previously These background checks do not Whether or not this exception is submitted information when the high- affect facility personnel who do not granted, DHS will still require high-risk risk chemical facility becomes aware have access to facilities’ restricted areas facilities to affirm that required Privacy that an affected individual’s information or critical assets, nor do they affect Act notice has been provided to affected is incorrect (e.g., an affected escorted visitors. individuals before personal information individual’s place or date of birth). Linking Affected Individuals to Specific is collected. See 5 U.S.C. 552a(e)(3). Requiring high-risk chemical facilities DHS’s request for an exception to the CFATS Covered Facilities to update and correct information about requirement under 5 CFR 1320.8(b)(3) affected individuals will increase the To comply with CFATS, high-risk would not exempt high-risk chemical accuracy of the data collected, and chemical facilities are required to facilities from having to adhere to decrease the probability of incorrect identify who is an affected individual, applicable Federal, State, local, or tribal matches to the information of known or and at which high-risk chemical facility laws, or to regulations or policies suspected terrorists listed on the TSDB. or facilities each affected individual has pertaining to the privacy of facility One piece of information that may access to restricted areas or critical personnel and the privacy of unescorted change is the list of high-risk chemical assets. DHS intends to collect this visitors. facilities within one company or information through CSAT. organization to which an affected Responses to Comments Received individual has access. When such a Personnel Surety Submission Schedule During the 60-Day Comment Period To Check for Terrorist Ties change occurs, updates are not required DHS received 17 comments in immediately but rather in accordance DHS will establish a CFATS response to the 60-day notice for with a schedule to be published by Personnel Surety Submission schedule comment. Comments were received DHS. for high-risk chemical facilities when from three private citizens, four private Comment: Commenters challenged submitting information to DHS to check sector companies, seven associations, the practical utility of requiring high- for terrorist ties under 6 CFR one training council, and one risk chemical facilities to notify the 27.230(a)(12)(iv). The schedule will be professional society. One additional Department when an affected individual published in the Federal Register. The comment was a jointly submitted no longer has access to a high-risk schedule, when published, will require: comment. Many of the comments were chemical facility’s restricted area(s) or (1) An initial submission of information in response to the questions posed by critical asset(s). Commenters suggested either within a certain number of days DHS in the 60-day notice for comments. that this notification by a high-risk after DHS issues a letter of authorization In this section of this notice, DHS first chemical facility to DHS would provide or within certain number of days after addresses specific questions that the no value in the context of terrorism publication of the schedule, whichever Department solicited, then other screening. is later; (2) additional submissions for comments related to the Personnel Response: DHS will not rely on a individuals that become newly affected Surety Program, and finally unsolicited single, one-time check to determine that (e.g., new hires or other individuals comments received in response to the an affected individual has ties to given access to a restricted area or 60-day notice. terrorism. Instead, DHS will continue to critical asset); (3) updates or corrections (A) On behalf of OMB, DHS solicited vet an affected individual’s information to information for affected individuals comments that evaluate whether the against new and/or updated TSDB whose information has previously been proposed collection of information is records as they become available, for as submitted; and (4) notification when an necessary for the proper performance of long as the affected individual has affected individual no longer has access the functions of the agency, including access to a high-risk chemical facility’s to a restricted area or critical asset. The whether the information will have restricted area(s) or critical asset(s). This schedule will likely vary by final tier. A practical utility. process is referred to as ‘‘recurrent proposed schedule is provided in Comment: Commenters challenged vetting’’ and is a standard DHS vetting subpart (B) of the ‘‘Response To the practical utility of requiring high- practice. DHS will require high-risk Comments Received During The 60-Day risk chemical facilities to update chemical facilities to notify the Comment Period’’ section of this 30-Day previously submitted information. Department when an affected individual notice. High-risk chemical facilities may Response: The information collected no longer has access to a high-risk request extensions or variances from by DHS is generally static. However, chemical facility’s restricted areas or this schedule based on unique or DHS will require each high-risk critical assets so that the Department unusual circumstances. chemical facility to update and correct can cease recurrent vetting of the information previously submitted about affected individual. Request for Exception to the affected individuals. Updates and Comment: Many commenters Requirement Under 5 CFR 1320.8(b)(3) corrections do not necessarily need to suggested that the proposed collection DHS is requesting from OMB an be made immediately when submitted of information is needless and exception for the CFATS Personnel information changes; rather, DHS will duplicative. Specifically, commenters Surety Program to the Paperwork require high-risk facilities to make suggested that the proposed information Reduction Act (PRA) requirement, as updates and corrections in accordance collection will place an undue burden contained in 5 CFR 1320.8(b)(3), which with a DHS-approved schedule. on industry—in regard to time, money requires Federal agencies to confirm For example, when a high-risk and other resources—by creating a that their information collections chemical facility becomes aware that an program which duplicates an existing provide certain reasonable notices, affected individual’s information has DHS screening or vetting program, such under the Paperwork Reduction Act, to changed (e.g., when a high-risk as the Transportation Worker
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Identification Credential (TWIC) and as appropriate * * * unescorted determined that a TSDB check is program. visitors with access to restricted areas or necessary for the purpose of protecting Response: TWIC’s authorizing statute, critical assets’’ 6 CFR 27.230(a)(12). restricted areas and critical assets of the Maritime Transportation Security Moreover, facilities regulated under high-risk chemical facilities from Act of 2002 (MTSA), as amended, 46 MTSA are exempt from CFATS. persons who may have ties to terrorism. U.S.C. 70101 et seq., explicitly applies Accordingly, the CFATS Personnel See 72 FR 17708. The TSDB is the ‘‘transportation security card’’ Surety Program is not duplicative of the Federal Government’s integrated and requirements only to: ‘‘individual[s] TWIC program. consolidated terrorist watchlist and is allowed unescorted access to secure DHS recognizes that some affected the appropriate database to identify area[s] designated in * * * [maritime] individuals under CFATS possess individuals with terrorist ties. vessel or [maritime] facility security TWICs or other credentials that rely on (B) On behalf of OMB, DHS solicited plan[s]’’ (§ 70105(b)(2)(A)); certain DHS-conducted TSDB vetting (e.g., an comments which evaluate the accuracy MTSA license and permit holders individual vetted under the TWIC of the Department’s estimate of the (§ 70105(b)(2)(B)); maritime vessel pilots program). DHS intends to reduce the burden of the proposed collection of (§ 70105(b)(2)(C)); maritime towing burden of this collection by recognizing information, including the validity of vessel personnel (§ 70105(b)(2)(D)); previous TSDB vetting results the methodology and assumptions used. individuals with access to certain conducted by DHS. Therefore, an Comment: Commenters suggested that protected maritime security information affected individual who possesses a DHS did not provide sufficient detail (§ 70105(b)(2)(E)); and ‘‘other current and valid TWIC will likely about the proposed information individuals engaged in port security require less information to be submitted collection to adequately evaluate the activities’’ (§ 70105(b)(2)(F)). than an affected individual who does estimated burden. Furthermore, individuals are only not have a TWIC. Some additional Response: In order to provide the eligible to receive TWICs if they have personal information will be required in public with more information to not committed certain ‘‘disqualifying order to verify that the affected evaluate the estimated burden, the criminal offense[s],’’ or if they do not individual has a previous TSDB vetting Department has established the meet certain ‘‘immigration status result upon which the TWIC was issued. information submission schedule requirements’’ 49 CFR 1572.5(a)(1)–(2). Comment: One comment suggested outlined below. The Department will However, the CFATS authorizing statute that the vetting of affected individuals review comments received in response applies to ‘‘chemical facilities that * * * against the TSDB has little practical to this 30-day notice when finalizing the present high levels of security risk’’ utility in identifying terrorists due to the DHS schedule for submitting Department of Homeland Security large number of individuals whose information. High-risk chemical Appropriations Act of 2007, Public Law names appear on the TSDB, even though facilities will be notified of the final 109–295, section 550 (Oct. 4, 2006), as they are not actually threats to national DHS schedule prior to its amended. CFATS Personnel Surety security. implementation. The final DHS Program requirements apply only to Response: As indicated in the CFATS schedule will also be published in the high-risk chemical facilities’ ‘‘personnel, interim final rule, the Department has Federal Register.
Final tier 1 Final tier 2 Final tier 3 Final tier 4
Initial Submission of Af- 60 days after DHS issues 60 days after DHS issues 90 days after DHS issues 90 days after DHS issues fected Individual’s Infor- a letter of authorization. a letter of authorization. a letter of authorization. a letter of authorization. mation. Submission of a New Af- Within 30 days of being Within 30 days of being Within 60 days of being Within 60 days of being fected Individual’s Infor- granted access. granted access. granted access. granted access. mation. Submission of Updates Within 90 days of becom- Within 90 days of becom- Within 90 days of becom- Within 90 days of becom- and Corrections to an ing aware of the need ing aware of the need ing aware of the need ing aware of the need Affected Individual’s In- for an update or correc- for an update or correc- for an update or correc- for an update or correc- formation. tion. tion. tion. tion. Submission of notification Within 90 days of access Within 90 days of access Within 90 days of access Within 90 days of access that an affected indi- being removed. being removed. being removed. being removed. vidual no longer has ac- cess.
Comment: Commenters generally chemical facilities in the cases of multiple high-risk chemical facilities. believed the mechanics of the individuals who have access to The Department’s population estimate information submission and update restricted areas or critical assets at also aligns with the commenters’ process could place a heavy burden on multiple facilities. expectations that DHS should expect high-risk facilities. One commenter Response: The estimated burden tens of thousands of submissions during indicated that DHS could expect relied on the regulatory evaluation each month. submissions to be in the tens of published for CFATS on April 1, 2007. The estimated time for a responsible thousands per month. Commenters In the regulatory evaluation, the entity to submit the information of each suggested that the proposed 35-minute Department estimated that 1,063,200 affected individual through the CSAT burden for the information collection affected individuals would be vetted portal is 0.59 hours per individual. This was based on an incomplete estimate, against the TSDB (i.e., 29,533 per estimate is based upon the CFATS and did not account for the duplicative month) over a three-year period. This regulatory evaluation. The estimated submission of affected individuals’ estimate allows for the possibility that a time per affected individual was derived information by multiple high-risk specific individual could have access at by assuming that (1) 30 minutes is
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required to type in the required Response: As outlined earlier in this other programs’ vetting results cannot information for every affected 30-day notice, DHS will routinely be verified without substantial effort, individual once; (2) 5 percent of affected collect an affected individual’s full DHS may initiate new vetting of an individuals will have some element of name, date of birth, place of birth, affected individual’s information against their information change annually, gender, and citizenship. DHS will also the TSDB. requiring 10 additional minutes of collect information that identifies the Comment: Several commenters effort; and (3) 20 percent of affected high-risk chemical facility or facilities to recommended that the Department individuals will lose access to restricted which the affected individual has recognize and offer reciprocity to the areas or critical assets annually, which access. DHS has limited the information background checks, which include will require 10 additional minutes of routinely collected to include only that vetting against the TSDB, as conducted effort to remove each affected which is (1) Necessary to conduct a by the Department of Justice Bureau of individual’s information from CSAT. TSDB check and adjudicate potential Alcohol, Tobacco, Firearms and DHS believes that the information matches, (2) unlikely to change, and (3) Explosives (ATF). Commenters contained in this notice, in the is essential for quickly understanding suggested that without this Personnel Surety Program’s 60-day PRA the risk a known or suspected terrorist accommodation, the regulatory overlap notice preceding this notice (74 FR poses to high-risk chemical facilities. between the two agencies will impose 27555 (June 10, 2009)), and in the DHS will not require immediate unreasonable burdens. CFATS regulatory evaluation provides reporting of updates to previously Response: ATF does not conduct sufficient detail about the proposed submitted information. As previously recurrent vetting against the TSDB, and Personnel Surety Program’s information discussed in this notice, DHS will thus is not appropriate as a reciprocal collection process. permit high-risk chemical facilities to program to meet the requirements of Comment: One commenter suggested update information on a periodic basis CFATS. that the Department’s estimate of the in compliance with a DHS-approved (D) On behalf of OMB, DHS solicited burden may not have accounted for the schedule. comments regarding the minimization burden an affected individual incurs Comment: Most commenters of the burden of information collection from investigations and adverse commended DHS for intending to on those who are to respond, including employment decisions that may result recognize the previous TSDB vetting through the use of appropriate from the individual’s possibly results completed by other DHS automated, electronic, mechanical, or unjustified presence on the TSDB. programs, such as the TWIC program. other technological collection Response: The burden outlined in this Several commenters, however, techniques or other forms of information 30-day notice is limited in scope to suggested that DHS should not collect technology (e.g., permitting electronic those activities listed in 5 CFR information from high-risk chemical submissions of responses). 1320.3(b)(1). Specifically, 5 CFR facilities for the purpose of verifying the Comment: Commenters encouraged 1320.3(b)(1) requires the Department to validity of credentials issued as part of DHS to consider the procedural and estimate the total time, effort, or other DHS programs (which conduct logistical challenges of large-scale data financial resources expended by persons TSDB vetting) because the burden of collection and transmission when to generate, maintain, retain, or disclose data collection necessary to verify such developing the Personnel Surety portal or provide information to or for a credentials could be burdensome. component of CSAT. Specifically, Federal agency. Response: In lieu of conducting new commenters suggested that DHS permit The Department is also seeking to TSDB vetting on all affected each high-risk chemical facility to collect five core data elements about individuals, DHS intends to recognize transmit data collectively (e.g., via a each individual to be vetted under the the results of previous TSDB vetting spreadsheet or other readily available Personnel Surety Program: Full name, conducted on individuals enrolled in electronic means). In other words, a date of birth, place of birth, gender, and certain other DHS programs. high-risk chemical facility would collect citizenship. When taken together, these Specifically, DHS is considering the required information in a single file identifiers will minimize false positive recognizing the previous TSDB vetting (or series of files) and upload it to DHS. matches to the TSDB. Furthermore, each results completed by other DHS Anything to the contrary—such as potential match will be manually programs, such as TWIC, and the manual entry of discrete information reviewed by Department adjudicators Trusted Traveler Programs (Secure into data fields—would result in an who have expertise in evaluating Electronic Network for Travelers Rapid undue burden to the regulated matches prior to confirmation that an Inspection (SENTRI), Free and Secure community, increase human error, and individual’s information matches the Trade (FAST), and NEXUS). Further, raise information security concerns. information of a known or suspected DHS is also considering recognizing the Response: DHS will enable high-risk terrorist. results of TSDB vetting (conducted by chemical facilities to upload (C) On behalf of OMB, DHS solicited DHS) upon which each State relies information electronically about comments to enhance the quality, when issuing a Commercial Driver’s multiple affected individuals utility, and clarity of the information to License with a Hazardous Materials collectively. DHS would welcome be collected. Endorsement (HME). suggestions about what technical Comment: Most of the commenters This will likely require fewer pieces standards, formats, or export/import requested additional clarity about what of information than are required to vet capabilities are in use by high-risk information DHS will routinely collect an individual who is not enrolled in chemical facilities to facilitate such data and update. Several commenters another vetting program. DHS believes submission. suggested that the information collected the burden of collecting those fewer Comment: Many commenters should be limited to information which pieces of information is accounted for in suggested that third parties be is necessary to conduct an inquiry the estimated burden. authorized to support data submission against the TSDB. One commenter also This approach will also limit the to the Department. Specifically, many suggested that the information should number of instances in which different commenters suggested that DHS should be limited to personal information that DHS programs may vet the same permit third party vendors to enter is unlikely to change. affected individual against the TSDB. If information into CSAT on a facility’s
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behalf. One commenter suggested that Response: The regulatory text makes who is properly on the watchlist but is (1) Background check providers no distinction between facility innocent nevertheless may result in understand the information security and personnel who are escorted and facility adverse employment decisions. privacy protections that apply to personnel who are unescorted. The Response: Contact by a Federal law information; (2) a web of Federal, State, actual text of CFATS, at 6 CFR enforcement organization does not and local laws protect information 27.230(a)(12), uses the term necessarily indicate that any affected (many corporations outsource personnel ‘‘unescorted’’ to modify only the noun person is a known or suspected terrorist. surety needs for this reason); and (3) ‘‘visitors.’’ As such, if facility personnel Further, employment decisions made by experienced background check have access, either unescorted or a high-risk chemical facility in response providers will help high-risk chemical otherwise (e.g., escorted), to restricted to contact by a Federal law enforcement facilities ensure that compliance with areas or critical assets, then they are agency are not regulated by CFATS. A CFATS does not cause noncompliance affected individuals who must be corporation or facility should ensure with other laws which govern the screened for the purposes of the that it is complying with all applicable collection, use, storage, or destruction of Personnel Surety Program. laws, including applicable state information. However, the preamble to the CFATS regulations, when considering Response: To support the submission Interim Final Rule could be read to employment decisions. of information by high-risk chemical imply that a different population would It should also be noted that DHS will facilities, DHS has historically undergo vetting rather than the randomly audit its vetting processes in allowed—and will continue to allow— population suggested in the regulatory an effort to maximize vetting accuracy authorized third-party access to CSAT text of CFATS. To the extent that there and Personnel Surety Program as a Preparer. Information about the is a potential conflict, the regulatory text efficiency. As part of this auditing, DHS CSAT Preparer user role can be found of CFATS takes precedence. As such, may request information on a small at http://www.dhs.gov/chemicalsecurity. the populations of individuals who percentage of affected individuals after Comment: A few commenters must be vetted under 6 CFR those individuals have been initially suggested that high-risk chemical 27.230(a)(12) are the same as those vetted against the TSDB. A request for facilities receive an electronic described in the 60-day notice additional information does not imply, acknowledgement that the submitted preceding this 30-day notice: (1) Facility and should not be construed to indicate, information has been received. Such an personnel (e.g., employees and that an individual is known or acknowledgement would aid in contractors) with access (unescorted or suspected to be associated with demonstrating a high-risk chemical otherwise) to restricted areas or critical terrorism. assets, and (2) unescorted visitors with facility’s compliance with 6 CFR (G) DHS solicited comments which access to restricted areas or critical 27.230(a)(12)(iv). respond to the Department’s intention to assets. Response: DHS will send an DHS would like to underscore that a seek an exception to the notice electronic verification of submission to high-risk chemical facility has wide requirement under 5 CFR 1320.8(b)(3). high-risk chemical facilities when a latitude in its unique and tailored SSP Comment: DHS received several high-risk chemical facility (1) Submits regarding the terms under which facility comments in response to the information about an affected individual personnel will be granted access, either Department’s intention to seek an for the first time, (2) submits updated or unescorted or otherwise, to restricted exception to the PRA’s notice corrected information about an affected areas and critical assets. Each high-risk requirement. Every comment expressed individual, and/or (3) notifies DHS that chemical facility will need to consider concern about the impact to an affected an affected individual no longer has its unique security concerns when individual’s right to be granted notice access to restricted areas or critical determining which individuals will be under the Privacy Act. See 5 U.S.C. assets. afforded access to restricted areas or 552a(e)(3). (E) DHS solicited comments that critical assets. Response: The request for an respond to the Department’s Additionally, DHS will expect that exception to 5 CFR 1320.8(b)(3) is interpretation of the population affected each facility be able to explain why an related to the PRA and unrelated to the by RBPS–12’s background check individual is an affected individual. Privacy Act; 5 CFR 1320.8(b)(3) requires requirement. Specifically, an affected individual must that each collection of information shall Comment: Many commenters meet one and only one of the following inform and provide reasonable notice to provided extensive responses to the three criteria: (1) The individual is the potential persons to whom the Department’s interpretation of the facility personnel with unescorted collection of information is addressed. population which is affected by RBPS– access to restricted areas or critical The request by DHS for an exception to 12. The comments suggested that the assets; (2) the individual is facility 5 CFR 1320.8(b)(3) from OMB will Department’s interpretation expanded personnel with access, but not ensure that DHS will be relieved of the the definition beyond the scope of unescorted access, to restricted areas or potential obligation to require high-risk CFATS. The comments referenced the critical assets; or (3) the individual is an chemical facilities to collect signatures preamble to the CFATS Interim Final unescorted visitor with access to or other positive affirmations of these Rule, in which DHS stated that each restricted areas or critical assets. notices from affected individuals facility ‘‘shall identify critical assets and (F) DHS solicited comments which (although high-risk chemical facilities restricted areas and establish which respond to the statement that a Federal would not be precluded from collecting employees and contractors may need law enforcement agency may, if signatures or other positive affirmations unescorted access to those areas or appropriate, contact the high-risk of notice if this exception is granted). assets, and thus must undergo a chemical facility as a part of a law This exception will then afford high-risk background check’’ 72 FR 17708 (Apr. 7, enforcement investigation into terrorist chemical facilities wide latitude in 2007). Commenters also suggested that ties of facility personnel. choosing how to collect, recollect, or vetting escorted facility personnel is Comment: One commenter expressed leverage already collected data based inconsistent with other regulatory concern that contact from a Federal law upon their unique business operations schemes (e.g., TWIC). enforcement agency about an individual and processes.
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Because the information being Personnel Surety Program’s 60-day PRA which known or suspected terrorists collected under this information notice (74 FR 27555 (June 10, 2009)). have access to high-risk chemical collection request is information that (H) DHS also received unsolicited facilities. The precise manner in which will be used to identify individuals with comments in response to the 60-day DHS or Federal law enforcement entities known or suspected terrorist ties, the notice related to the CFATS Personnel could contact high-risk chemical Department believes that it is important Surety Program. facilities following vetting are beyond for affected individuals to be informed Comment: One commenter expressed the scope of this PRA notice. of the Government’s intended use of disappointment in the proposed Comment: Commenters also suggested their information. However, under information collection, because the that failure to notify an individual that CFATS the Department regulates high- commenter believed that the collection he/she is a known or suspected terrorist risk chemical facilities and not affected approach did not guarantee the would abrogate that individual’s right to individuals. Although the affected availability of all due process request an administrative adjudication individual is ultimately the source of protections under notice and comment of a finding under RBPS–12 that he/she the collected information, the burden of rulemaking pursuant to the is a potential security threat. submitting the collected data to DHS Administrative Procedure Act (APA). Response: Administrative lies on the high-risk chemical facility. Response: Through this notice and adjudications which contest findings (For example, high-risk chemical through DHS’s June 10, 2009, 60-day that affected individuals are potential facilities may collect affected PRA notice, 74 FR 27555 (June 10, security threats are provided by 6 CFR individuals’ information by having 2009), DHS is fulfilling its obligations to 27.310(a)(1). The Department does not affected individuals fill out forms, or solicit and respond to public comment intend to limit affected individuals’ high-risk chemical facilities may submit under the PRA. DHS’s PRA publications abilities to request administrative batch files extracted from databases detail (1) which data points the adjudications merely because it will not which contain the necessary Department will collect in order to routinely notify them of TSDB vetting information previously collected from conduct vetting against the TSDB; (2) results. Individuals who believe they how the Department will collect those affected individuals.) An exception to 5 have been adversely affected by vetting data points; and (3) how the Department CFR 1320.8(b)(3) will ensure that the may file Notices of Application for will perform vetting against the TSDB. Department does not need to inspect, Review with the Department. This type of program description is the audit, or receive confirmation (e.g., Comment: One commenter type of detail which is appropriate in a signatures of acknowledgement from recommended that DHS should not PRA notice, because it allows DHS to affected individuals) from high-risk collect an acknowledgement of State solicit comments on how to improve the chemical facilities where every affected and local privacy law compliance from proposed information collection and to individual has received notice under the high-risk chemical facilities. The consider ways to reduce the burden the PRA of this information collection. commenter suggested that requiring a CFATS Personnel Surety Program will The Department’s request for an compliance certification would add place on affected individuals and high- unnecessary procedural burden to the exception to 5 CFR 1320.8(b)(3) of the risk chemical facilities. PRA is not a request for an exception to Personnel Surety Program because DHS Comment: Many commenters is not responsible for State or local provide notice to affected individuals expressed concern that DHS would not under the Privacy Act. If this exception privacy law compliance. notify high-risk chemical facilities when Response: DHS agrees with the is granted, high-risk chemical facilities affected individuals are determined to will be relieved of the potential commenter and will not collect this be known or suspected terrorists. acknowledgement as part of Personnel obligation to collect signatures or other Commenters stated that as a result of positive affirmations from affected Surety Program information such lack of notification, high-risk submissions. individuals, but will still be obligated to chemical facilities may unknowingly affirm that required privacy notice has grant access to individuals who are Solicitation of Comments been provided to affected individuals known or suspected to have terrorist The Office of Management and Budget before personal information is collected. ties, thereby subjecting facility is particularly interested in comments Comment: Several commenters personnel and surrounding which: suggested that affected individuals communities to unnecessary risk. Some 1. Evaluate whether the proposed should be notified in writing that they of the commenters acknowledged that collection of information is necessary must undergo background checks there may be circumstances when it is for the proper performance of the consistent with the requirements of 6 either appropriate or inappropriate to functions of the agency, including CFR 27.230 as a condition of contact a facility in the context of a law whether the information will have employment at any high-risk chemical enforcement investigation, but stated practical utility; facility. Commenters also suggested that that DHS should not withhold TSDB 2. Evaluate the accuracy of the affected individuals should be advised vetting results as a general matter. Other agency’s estimate of the burden of the of their rights to contest the findings of commenters suggested that DHS should proposed collection of information, background checks, and of how to always notify facilities about known or including the validity of the contest those findings. suspected terrorists to enable methodology and assumptions used; Response: No affirmative written appropriate facility action, such as 3. Enhance the quality, utility, and statements of this sort are required by potentially limiting or denying known clarity of the information to be CFATS. However, DHS has discussed or suspected terrorists’ access to collected; and Personnel Surety Program background restricted areas or critical assets. 4. Minimize the burden of the check requirements in CFATS in the Response: DHS will not routinely collection of information on those who Advanced Notice of Rulemaking notify high-risk chemical facilities of are to respond, including through the preceding CFATS (71 FR 78276 (Dec. Personnel Surety Program vetting use of appropriate automated, 28, 2006)), the CFATS Risk-Based results. DHS will coordinate with electronic, mechanical, or other Performance Standards Guidance Federal law enforcement entities to technological collection techniques or Document (May 2009), and the monitor and/or prevent situations in other forms of information technology
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(e.g., permitting electronic submissions DEPARTMENT OF HOMELAND FOR FURTHER INFORMATION CONTACT: For of responses). SECURITY general questions please contact: The Department is particularly Raymond Mills (202–357–8100), Privacy Office of the Secretary interested in comments which: Point of Contact, Office of the [Docket No. DHS–2009–0146] Citizenship and Immigration Services 1. Respond to the Department’s Ombudsman, Department of Homeland interpretation of the population affected Privacy Act of 1974; Department of Security, Washington, DC 20528. For by RBPS–12 background checks, as Homeland Security Citizenship and privacy issues please contact: Mary outlined in 6 CFR 27.230(a)(12); Immigration Services Ombudsman– Ellen Callahan (703–235–0780), Chief 2. Respond to fact that the Department 001 Virtual Ombudsman System of Privacy Officer, Privacy Office, or a Federal law enforcement agency Records Department of Homeland Security, Washington, DC 20528. may, if appropriate, contact the high- AGENCY: Privacy Office, DHS. risk chemical facility as a part of a law SUPPLEMENTARY INFORMATION: ACTION: Notice of Privacy Act system of enforcement investigation into terrorist records. I. Background ties of facility personnel; Pursuant to the Privacy Act of 1974, 3. Respond to the Department’s SUMMARY: In accordance with the (5 U.S.C. 552a), the Department of intention to collect information that Privacy Act of 1974, the Department of Homeland Security is giving notice that Homeland Security (DHS) Citizenship identifies the high-risk chemical and Immigration Services Ombudsman facilities, restricted areas and critical it proposes to establish a new Department of Homeland Security (CISOMB) is giving notice that it assets to which each affected individual system of records notice titled, proposes to establish a new DHS system has access; and ‘‘Department of Homeland Security of records notice titled, ‘‘DHS/CISOMB– 4. Respond to the Department on its Citizenship and Immigration Services 001 Virtual Ombudsman System of intention to seek an exception to the Ombudsman–001 Virtual Ombudsman Records.’’ This system of records will notice requirement under 5 CFR System of Records.’’ This system of ensure the efficient and secure 1320.8(b)(3). records will ensure the efficient and processing of information to aid the secure processing of information to aid CISOMB in providing assistance to Analysis the Citizenship and Immigration individuals, employers, and their representatives in resolving problems Agency: Department of Homeland Services Ombudsman in providing with U.S. Citizenship and Immigration Security, National Protection and assistance to individuals, employers, Services (USCIS); identify areas in Programs Directorate, Office of and their representatives in resolving problems with U.S. Citizenship and which individuals, employers, and their Infrastructure Protection, Infrastructure representatives have problems working Security Compliance Division. Immigration Services; identify areas in which individuals, employers, and their with USCIS; and to the extent possible, Title: CFATS Personnel Surety representatives have problems working propose changes to mitigate problems Program. with U.S. Citizenship and Immigration pursuant 6 U.S.C. 272. Form: Not Applicable. Services; and to the extent possible, CISOMB has developed the DHS/ CISOMB–001 Virtual Ombudsman OMB Number: 1670–NEW. propose changes to mitigate problems pursuant to 6 U.S.C. 272. This newly System of Records to ensure the Frequency: As required by the DHS- established system will be included in efficient and secure processing of approved schedule. the Department of Homeland Security’s information and to aid the Ombudsman Affected Public: High-risk chemical inventory of record systems. in assisting individuals and employers facilities as defined in 6 CFR part 27, DATES: Submit comments on or before in making systemic recommendations to high-risk chemical facility personnel, May 13, 2010. This new system will be USCIS. The core of the DHS/CISOMB– and as appropriate, unescorted visitors effective May 13, 2010. 001 Virtual Ombudsman System of Records is CISOMB’s Web form 7001 with access to restricted areas or critical ADDRESSES: You may submit comments, which is a user interface Web-based assets. identified by docket number DHS– 2009–0146 by one of the following form which will automatically convert Number of Respondents: 354,400 information submitted by an individual individuals. methods: • Federal e-Rulemaking Portal: http:// or employer into a case within Estimated Time per Respondent: 0.59 www.regulations.gov. Follow the CISOMB’s account within Internet hours (35.4 minutes). instructions for submitting comments. Quorum/Enterprise Correspondence • Tracking (IQ/ECT) system. IQ/ECT is the Total Burden Hours: 210,351.7 annual Fax: 703–483–2999. • Department’s enterprise-wide burden hours. Mail: Mary Ellen Callahan, Chief Privacy Officer, Privacy Office, correspondence and case management Total Burden Cost (capital/startup): Department of Homeland Security, tracking system. This system allows the $0.00. Washington, DC 20528. Department’s headquarters and Total Burden Cost (operating/ • Instructions: All submissions components to manage cases and maintaining): $17,669,543. received must include the agency name resolve issues in a coordinated and and docket number for this rulemaking. timely manner. For more information on Dated: March 6, 2010. All comments received will be posted IQ/ECT, please view the Enterprise Thomas Chase Garwood, III, without change to http:// Correspondence Tracking System PIA at Chief Information Officer, National Protection www.regulations.gov, including any http://www.dhs.gov/privacy. The system and Programs Directorate, Department of personal information provided. also enables CISOMB to segregate data Homeland Security. • Docket: For access to the docket to into several categories to generate [FR Doc. 2010–8312 Filed 4–12–10; 8:45 am] read background documents or internal reports, provide customized BILLING CODE 9110–9P–P comments received go to http:// feedback to individuals and employers, www.regulations.gov. and supply real-time aggregated
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statistical information for the CISOMB the name of an individual or by some • Individual’s date and country of to assist individuals and employers with identifying number, symbol, or other birth; their problems with USCIS. identifying particular assigned to the • Individual’s legal citizenship; The purpose of this system is to individual. In the Privacy Act, an • Individual’s alien (‘‘A’’) number; provide efficient and secure case individual is defined to encompass • Full legal name of person preparing management and processing of United States citizens and lawful form if other than the individual named information related to individuals and permanent residents. As a matter of in the case; employers problems allowing the policy, DHS extends administrative • Applications and petitions filed; Ombudsman to make systemic Privacy Act protections to all • Receipt number located on the top recommendations to USCIS. The individuals where systems of records left hand corner of Notice of Action Department’s authority for this maintain information on U.S. citizens, (Form I–797) received from USCIS in collection is primarily Section 452 of lawful permanent residents, and response to the application/petition the Homeland Security Act of 2002. visitors. Individuals may request access filed; This system will collect individuals’ to their own records that are maintained • Immigration status or interim personal information to support the in a system of records in the possession benefit applied or petitioned for; Ombudsman’s efforts to make or under the control of DHS by • Type of case problem; recommendations to USCIS pursuant to complying with DHS Privacy Act • Source of case problem; 6 U.S.C. 272. Efforts have been made to regulations, 6 CFR part 5. • Description of case problem; safeguard records in accordance with The Privacy Act requires each agency • Prior actions taken to remedy the applicable rules and policies, including to publish in the Federal Register a problem; all applicable DHS automated systems description denoting the type and • Designated attorney/representative; security and access policies. Strict character of each system of records that • Consent of the petitioner for USCIS controls have been imposed to minimize the agency maintains, and the routine to disclose information in the file to the risk of compromising the information uses that are contained in each system designated representative; that is being stored. Access to the in order to make agency record keeping • Verification statement signed and computer system containing the records practices transparent, to notify dated by the individual of the inquiry or in this system is limited to those individuals regarding the uses to their the authorized representative; and individuals who have a need to know records are put, and to assist individuals • Declaration by the individual or the the information for the performance of to more easily find such files within the attorney or representative submitting their official duties and who have agency. Below is the description of the the case problem. appropriate clearances or permissions. DHS/CISOMB–001 Virtual Ombudsman The routine uses posted cover sharing System of Records. AUTHORITY FOR MAINTENANCE OF THE SYSTEM: with the Department of Justice for legal In accordance with 5 U.S.C. 552a(r), Section 452 of the Homeland Security representation; to Congress at the DHS has provided a report of this Act of 2002. request of a constituent; to the National system of records to the Office of PURPOSE(S): Archives and Records Administration Management and Budget and to for records retention and disposal; to Congress. The purpose of this system is to agencies, organizations, and individuals provide efficient and secure case for purposes of audit as well as for System of Records: management and processing of security breaches; to contractors of the DHS/CISOMB–001 information related to individuals and Department in performance of their employers problems with USCIS. contractual duties; to appropriate SYSTEM NAME: agencies and entities for investigations Citizenship and Immigration Services ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND and prosecutions; and to an attorney or Ombudsman—001 Virtual Ombudsman THE PURPOSES OF SUCH USES: representative who is acting on behalf of System of Records. an individual. This system collects In addition to those disclosures information under the Paperwork SECURITY CLASSIFICATION: generally permitted under 5 U.S.C. Reduction Act using the following form: Unclassified. 552a(b) of the Privacy Act, all or a portion of the records or information DHS Form 7001, Case Problem SYSTEM LOCATION: Submission Worksheet and Supporting contained in this system may be Records are maintained at Citizenship Statement Case Problem Submission, disclosed outside DHS as a routine use and Immigration Services Ombudsman OMB Control Number 1601–0004, pursuant to 5 U.S.C. 552a(b)(3), and in Headquarters in Washington, DC. Expiration Date 01/01/2013. accordance with 6 U.S.C. 272, as This newly established system will be CATEGORIES OF INDIVIDUALS COVERED BY THE follows: included in DHS’s inventory of record SYSTEM: A. To the Department of Justice systems. Categories of individuals covered by (including United States Attorney Offices) or other federal agency II. Privacy Act this system include: any member of the general public, including individuals, conducting litigation or in proceedings The Privacy Act embodies fair employers, and their representatives before any court, adjudicative or information principles in a statutory seeking assistance from the Citizenship administrative body, when it is framework governing the means by and Immigration Services Ombudsman necessary to the litigation and one of the which the United States Government in resolving general matters, issues, or following is a party to the litigation or collects, maintains, uses, and problems with USCIS. has an interest in such litigation: disseminates individuals’ records. The 1. DHS or any component thereof; Privacy Act applies to information that CATEGORIES OF RECORDS IN THE SYSTEM: 2. any employee of DHS in his/her is maintained in a ‘‘system of records.’’ Categories of records in this system official capacity; A ‘‘system of records’’ is a group of any include: 3. any employee of DHS in his/her records under the control of an agency • Individual’s full legal name individual capacity where DOJ or DHS for which information is retrieved by including any aliases; has agreed to represent the employee; or
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4. the United States or any agency or in conjunction with other Department of Homeland Security, thereof, is a party to the litigation or has information, indicates a violation or Washington, DC 20528. an interest in such litigation, and DHS potential violation of law, which determines that the records are both includes criminal, civil, or regulatory NOTIFICATION PROCEDURE: relevant and necessary to the litigation violations and such disclosure is proper Individuals seeking notification of and the use of such records is and consistent with the official duties of and access to any record contained in compatible with the purpose for which the person making the disclosure. this system of records, or seeking to DHS collected the records. H. To an attorney or representative contest its content, may submit a B. To a congressional office from the who is acting on behalf of an individual request in writing to the CISOMB’s record of an individual in response to covered by this system of records to FOIA Officer, whose contact an inquiry from that congressional office obtain the individual’s information information can be found at http:// made at the request of the individual to submitted to the Virtual Ombudsman www.dhs.gov/foia under ‘‘contacts.’’ whom the record pertains. System. When seeking records about yourself C. To the National Archives and from this system of records or any other Records Administration or other federal DISCLOSURE TO CONSUMER REPORTING Departmental system of records your AGENCIES: government agencies pursuant to request must conform with the Privacy records management inspections being None. Act regulations set forth in 6 CFR part conducted under the authority of 44 POLICIES AND PRACTICES FOR STORING, 5. You must first verify your identity, U.S.C. 2904 and 2906. RETRIEVING, ACCESSING, RETAINING, AND meaning that you must provide your full D. To an agency, organization, or DISPOSING OF RECORDS IN THE SYSTEM: name, current address, and date and individual for the purpose of performing place of birth. You must sign your STORAGE: audit or oversight operations as request, and your signature must either authorized by law, but only such Records in this system are stored be notarized or submitted under 28 information as is necessary and relevant electronically or on paper in secure U.S.C. 1746, a law that permits to such audit or oversight function. facilities in a locked drawer behind a statements to be made under penalty of E. To appropriate agencies, entities, locked door. The records are stored on perjury as a substitute for notarization. and persons when: magnetic disc, tape, digital media, and While no specific form is required, you 1. DHS suspects or has confirmed that CD–ROM. may obtain forms for this purpose from the security or confidentiality of RETRIEVABILITY: the Chief Privacy Officer and Chief information in the system of records has Records may be retrieved by CISOMB FOIA Officer at http://www.dhs.gov or been compromised; 1–866–431–0486. In addition you 2. The Department has determined Case Number, Alien Registration Number, or by the individuals’ name. should provide the following: that as a result of the suspected or • An explanation of why you believe confirmed compromise there is a risk of SAFEGUARDS: the Department would have information harm to economic or property interests, Records in this system are on you; identity theft or fraud, or harm to the safeguarded in accordance with • Identify which component(s) of the security or integrity of this system or applicable rules and policies, including Department you believe may have the other systems or programs (whether all applicable DHS automated systems information about you; maintained by DHS or another agency or security and access policies. Strict • Specify when you believe the entity) or harm to the individual that controls have been imposed to minimize records would have been created; rely upon the compromised the risk of compromising the • Provide any other information that information; and information that is being stored. Access will help the FOIA staff determine 3. The disclosure made to such to the computer system containing the which DHS component agency may agencies, entities, and persons is records in this system is limited to those have responsive records; and reasonably necessary to assist in individuals who have a need to know • If your request is seeking records connection with DHS’s efforts to the information for the performance of pertaining to another living individual, respond to the suspected or confirmed their official duties and who have you must include a statement from that compromise and prevent, minimize, or appropriate clearances or permissions. individual certifying his/her agreement remedy such harm. for you to access his/her records. F. To contractors and their agents, RETENTION AND DISPOSAL: grantees, experts, consultants, and Without this bulleted information the In accordance with National Archives component(s) may not be able to others performing or working on a and Records Administration approved contract, service, grant, cooperative conduct an effective search, and your retention and disposal policy N1–563– request may be denied due to lack of agreement, or other assignment for DHS, 08, processed case files are cut off at the when necessary to accomplish a specificity or lack of compliance with final disposition of the case and are applicable regulations. CISOMB function related to this system deleted or destroyed ten years after of records. Individuals provided cutoff. Uncompleted case files are the RECORD ACCESS PROCEDURES: information under this routine use are record copy of cases where additional See ‘‘Notification procedure’’ above. subject to the same Privacy Act information is requested, but not requirements and limitations on received. Cases are closed 30 days after CONTESTING RECORD PROCEDURES: disclosure as are applicable to DHS the request for additional information. See ‘‘Notification procedure’’ above. officers and employees. These records are cut off 30 days from G. To an appropriate Federal, State, date of request if no response, and are RECORD SOURCE CATEGORIES: tribal, local, international, or foreign law deleted or destroyed 5 years after cutoff. Information originates from enforcement agency or other appropriate stakeholders and customers who contact authority charged with investigating or SYSTEM MANAGER AND ADDRESS: the CISOMB. prosecuting a violation or enforcing or CISOMB VOS Project Manager (202– implementing a law, rule, regulation, or 357–8100), Office of the Citizenship and EXEMPTIONS CLAIMED FOR THE SYSTEM: order, where a record, either on its face Immigration Services Ombudsman, None.
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Dated: March 19, 2010. • Mail: Mary Ellen Callahan, Chief administrative tribunal or opposing Mary Ellen Callahan, Privacy Officer, Privacy Office, counsel or parties where a federal Chief Privacy Officer, Department of Department of Homeland Security, agency is a party or has an interest in Homeland Security. Washington, DC 20528. the litigation or administrative [FR Doc. 2010–8313 Filed 4–12–10; 8:45 am] • Instructions: All submissions proceeding. The fourth routine use BILLING CODE 9110–9B–P received must include the agency name allows DHS/TSA to release information and docket number for this rulemaking. to a former employee when it is All comments received will be posted necessary to consult with the former DEPARTMENT OF HOMELAND without change to http:// employee regarding a matter that is SECURITY www.regulations.gov, including any within that person’s former area of personal information provided. responsibility. The fifth routine use Office of the Secretary Docket: For access to the docket to allows DHS/TSA to release information read background documents or to appropriate entities where it would [Docket No. DHS–2010–0017] comments received go to http:// assist in the enforcement of civil or Privacy Act of 1974, Department of www.regulations.gov. criminal laws. • DHS/TSA is revising a routine use Homeland Security Transportation FOR FURTHER INFORMATION CONTACT: For currently in by adding indirect air Security Administration—013 Federal general questions please contact: Peter carriers and other facility operators as Flight Deck Officer Record System Pietra, Privacy Officer, Transportation potential recipients of information from Security Administration, TSA–36, 601 these systems when appropriate to AGENCY: Privacy Office, DHS. South 12th Street, Arlington, VA 20598– address a threat or potential threat to ACTION: Notice to alter an existing 6036 or [email protected]. For Privacy Act system of records. transportation security or national privacy issues please contact: Mary security, or when required for Ellen Callahan (703–235–0780), Chief SUMMARY: In accordance with the administrative purposes related to the Privacy Officer, Privacy Office, U.S. Privacy Act of 1974 the Department of effective and efficient administration of Department of Homeland Security, Homeland Security proposes to update transportation security laws. Washington, DC 20528. and reissue an existing Department of • DHS/TSA is also revising a current Homeland Security system of records SUPPLEMENTARY INFORMATION: routine use by adding indirect air notice titled, Transportation Security I. Background carriers and other facility operators as Administration—013 Federal Flight potential recipients of information about In accordance with the Privacy Act of Deck Officer Record System, previously individuals who are their employees, 1974, 5 U.S.C. 552a, the Department of published on August 18, 2003. The job applicants, or contractors, or persons Homeland Security (DHS) Federal Flight Deck Officer Record to whom they issue identification Transportation Security Administration System contains records necessary for credentials or grant clearances to (TSA) proposes to update and reissue a assessment, acceptance, training, secured areas in transportation facilities DHS/TSA system of records notice participation, and recertification of when relevant to such employment, titled, DHS/TSA–013 Federal Flight deputized pilots of commercial air application, contract, training or the Deck Officer Record System (FDORS), carriers who participate in the Flight issuance of such credentials or previously published on August 18, Deck Officer Program designed to clearances. 2003 (68 FR 49496). • Finally, DHS/TSA has removed as a defend aircraft flight decks against acts TSA’s mission is to protect the of criminal violence or air piracy. routine use the sharing of information nation’s transportation systems to with the Attorney General of the United As a result of the biennial review of ensure freedom of movement for people this system, modifications are being States concerning violations of the and commerce. To achieve this mission, Brady Handgun Violence Prevention made to the system of records’ routine TSA is required to develop and adapt its uses, record sources, retention and Act as it is duplicative. security programs to respond to • The record source categories are disposal, notification procedures, and evolving threats to transportation system manager and address. being updated to reflect the use of security. In accordance with the commercial and public record databases Portions of this system are exempt biennial review of this system, the under 5 U.S.C. 552a(k)(1), (k)(2) and and Web sites to obtain information following modifications are being made: regarding the identity of individuals (k)(6) as reflected in the final rule • DHS/TSA is updating the system of who attempt to gain access to the sterile published in the Federal Register on records to incorporate five Department June 25, 2004. areas of the airport and for whom of Homeland Security (DHS) standard identity needs to be verified or This updated system will continue to routines uses. One routine use will be included in the Department of individuals who are being vetted to allow the release of information to qualify as federal flight deck officers. Homeland Security’s inventory of appropriate agencies, entities, and • record systems. The retention and disposal section persons when DHS/TSA suspects or has is updated to reflect the records DATES: Submit comments on or before confirmed that the security or retention schedules approved by the May 13, 2010. The system will be confidentiality of an information system National Archives and Records effective May 13, 2010. of records has been compromised. Administration (NARA). ADDRESSES: You may submit comments, Another routine use permits the release • The notification section was identified by docket number DHS– of information to the media when there changed to reflect that inquiries 2010–0017 by one of the following exists a legitimate public interest in regarding whether the applicable system methods: disclosing information. Release under contains records about an individual • Federal e-Rulemaking Portal: http:// this routine use will require the should be directed to TSA’s Freedom of www.regulations.gov. Follow the approval of the DHS Chief Privacy Information Act (FOIA) Office. instructions for submitting comments. officer in consultation with counsel. • The system manager and address • Fax: 703–483–2999. The third routine use allows the release were revised to reflect the current of information to a court, magistrate, system manager.
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FFDORS contains records necessary the agency maintains, and the routine institutions, for the purposes of for assessment, acceptance, training, uses that are contained in each system verifying information provided to TSA participation, and recertification of in order to make agency record keeping by the applicant; deputized pilots of commercial air practices transparent, to notify (c) The FD–258 Fingerprint card, carriers who participate in the Flight individuals regarding the uses to which investigative summaries, and Deck Officer Program designed to their records are put, and to assist compilations of criminal history record defend aircraft flight decks against acts individuals to more easily find such checks, to include administrative of criminal violence or air piracy. files within the agency. Below is the records and correspondence incidental As a result of the biennial review of description of the Transportation to the background investigation process, this system, modifications are being Security Administration 013 Federal obtained from various law enforcement made to the system of records’ routine Flight Deck Officer Record System authorities; uses, record sources, retention and system of records. (d) Results of written cognitive and disposal, notification procedures, and In accordance with 5 U.S.C. 552a(r), noncognitive assessments and system manager and address. DHS has provided a report of this information regarding how the Portions of this system are exempt system of records to the Office of volunteer form was rated, prepared by under 5 U.S.C. 552a(k)(1), (k)(2) and Management and Budget and to TSA employees or contract (k)(6) as reflected in the final rule Congress. psychologists; published on June 25, 2004, 69 FR (e) Records regarding the TSA’s final System of Records: 35536. decision to accept or reject volunteers Consistent with the Privacy Act, DHS/TSA 013 for the FFDO program for suitability or information shared in the Federal Flight medical reasons, including records SYSTEM NAME: Deck Officer Records System may be prepared by TSA employees, and shared with other DHS components, as Transportation Security responses to and results of approved well as appropriate federal, state, local, Administration 013 Federal Flight Deck psychological assessments or similar tribal, foreign, or international Officer Record System (FFDORS). tests administered by TSA; government agencies. This sharing will (f) Results of telephonic or in-person only take place after DHS determines SECURITY CLASSIFICATION: interviews with program volunteers, that the receiving component or agency Classified, sensitive. including summary recommendations has a need-to-know the information to SYSTEM LOCATION: regarding the individual’s participation carry out national security, law in the program, prepared by TSA enforcement, immigration, intelligence, Federal Flight Deck Officer (FFDO) employees; or other functions consistent with the Program Records are maintained at the (g) Records prepared by TSA routine uses set forth in this system of offices of the Transportation Security employees related to the selection or records notice. Administration (TSA) Headquarters in Reston, Virginia. rejection of volunteer applicants (to II. Privacy include records generated as a result of CATEGORIES OF INDIVIDUALS COVERED BY THE any administrative appeal of TSA’s The Privacy Act embodies fair SYSTEM: determination to reject an applicant), information principles in a statutory Categories of individuals covered by framework governing the means by and records related to recertification this system include: and decertification; which the United States government 1. All individuals who volunteer to collects, maintains, uses, and (h) Records prepared by TSA participate in the FFDO program, employees related to training, including disseminates individual’s records. The 2. FFDO program participants, i.e., Privacy Act applies to information that academic and firearms performance; those volunteers who are accepted into and is maintained in a ‘‘system of records.’’ the FFDO training program and A ‘‘system of records’’ is a group of any (i) Records prepared by TSA deputized as FFDOs, and employees related to requalification and records under the control of an agency 3. former FFDO program participants. for which information is retrieved by deputation renewal. CATEGORIES OF RECORDS IN THE SYSTEM: the name of an individual or by some AUTHORITY FOR MAINTENANCE OF THE SYSTEM: identifying number, symbol, or other This system includes all records 49 U.S.C. 114, 44921. identifying particular assigned to the required in connection with an individual. In the Privacy Act, an individual’s voluntary participation in PURPOSE(S): individual is defined to encompass the program, including records The purpose of this system is to United States citizens and lawful associated with FFDO application, maintain records necessary for the permanent residents. As a matter of selection, training, participation, assessment and acceptance of policy, DHS extends administrative retention and requalification. FFDORS volunteers, and the training, Privacy Act protections to all includes records about individuals who participation and recertification of individuals where systems of records applied but were not accepted into the deputized volunteer pilots of air carriers maintain information on U.S. citizens, program. Such records may include, but providing commercial air transportation lawful permanent residents, and are not limited to the following: as federal law enforcement to defend the visitors. Individuals may request access (a) Volunteer forms prepared by flight decks of aircraft of such air to their own records that are maintained applicants for program participation carriers against acts of criminal violence in a system of records in the possession containing such information as work or air piracy. or under the control of DHS by history, education, military service, complying with DHS Privacy Act certificates of specialized training, ROUTINE USES OF RECORDS MAINTAINED IN THE regulations, 6 CFR part 5. awards and honors; SYSTEM, INCLUDING CATEGORIES OF USERS AND The Privacy Act requires each agency (b) Copies of correspondence between THE PURPOSES OF SUCH USES: to publish in the Federal Register a the applicant and TSA, and between A. To the Department of Justice (DOJ) description denoting the type and TSA and other agencies, applicant (including United States Attorney character of each system of records that places of employment, and educational Offices) or other federal agency in
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anticipation of, or conducting litigation, agency function related to this system of security clearance, license, contract, or in proceedings before any court, records. Individuals provided grant, or other benefit. adjudicative or administrative body, information under this routine use are L. To a Federal, State, local, tribal, when it is necessary to the litigation and subject to the same Privacy Act territorial, foreign, or international one of the following is a party to the requirements and limitations on agency, if necessary to obtain litigation or has an interest in such disclosure as are applicable to DHS information relevant to a DHS/TSA litigation: officers and employees. decision concerning the hiring or 1. DHS or any component thereof; G. To an appropriate federal, state, retention of an employee, the issuance 2. Any current or former employee of tribal, local, international, or foreign of a security clearance, license, contract, DHS in his/her official capacity; agency, including law enforcement, or grant, or other benefit. 3. Any current or former employee of other appropriate authority charged M. To international and foreign DHS in his/her individual capacity with investigating or prosecuting a governmental authorities in accordance where DOJ or DHS has agreed to violation or enforcing or implementing with law and formal or informal represent the employee, or a law, rule, regulation, or order, where international agreement. 4. The United States or any agency a record, either on its face or in N. To third parties to the extent thereof, is a party to the litigation or has conjunction with other information, necessary to obtain information an interest in such litigation, and DHS indicates a violation or potential pertinent to the individual’s fitness and determines that the records are both violation of law, which includes qualifications for the FFDO program. O. To airport operators, aircraft relevant and necessary to the litigation criminal, civil, or regulatory violations operators, and maritime and surface and the use of such records is and such disclosure is proper and transportation operators, indirect air compatible with the purpose for which consistent with the official duties of the carriers, and other facility operators DHS collected the records. person making the disclosure. about individuals who are their B. To a congressional office from the H. To the United States Department of employees, job applicants, or record of an individual in response to Transportation, its operating contractors, or persons to whom they an inquiry from that congressional office administrations, or the appropriate state issue identification credentials or grant made at the request of the individual to or local agency when relevant or clearances to secured areas in whom the record pertains. necessary to: C. To the National Archives and transportation facilities when relevant 1. Ensure safety and security in any Records Administration or other federal to such employment, application, mode of transportation; government agencies pursuant to contract, training or the issuance of such 2. Enforce safety- and security-related records management inspections being credentials or clearances. regulations and requirements; conducted under the authority of 44 P. To the DOJ in review, settlement, 3. Assess and distribute intelligence U.S.C. 2904 and 2906. defense, and prosecution of claims, D. To an agency, organization, or or law enforcement information related complaints, and lawsuits involving individual for the purpose of performing to transportation security; matters over which DHS/TSA exercises audit or oversight operations as 4. Assess and respond to threats to jurisdiction. authorized by law, but only such transportation; Q. To a former employee of DHS, in information as is necessary and relevant 5. Oversee the implementation and accordance with applicable regulations, to such audit or oversight function. ensure the adequacy of security for purposes of responding to an official E. To appropriate agencies, entities, measures at airports and other inquiry by a Federal, State, or local and persons when: transportation facilities; government entity or professional 1. DHS suspects or has confirmed that 6. Plan and coordinate any actions or licensing authority; or facilitating the security or confidentiality of activities that may affect transportation communications with a former information in the system of records has safety and security or the operations of employee that may be necessary for been compromised; transportation operators; or personnel-relate or other official 2. The Department has determined 7. The issuance, maintenance, or purposes where the Department requires that as a result of the suspected or renewal of a license, certificate, information or consultation assistance confirmed compromise there is a risk of contract, grant, or other benefit. from the former employee regarding a harm to economic or property interests, I. To a Federal, State, local, tribal, matter within that person’s former area identity theft or fraud, or harm to the territorial, foreign, or international of responsibility. security or integrity of this system or agency, in response to queries regarding R. To a court, magistrate, or other systems or programs (whether persons who may pose a risk to administrative tribunal where a Federal maintained by DHS or another agency or transportation or national security; a agency is a party to the litigation or entity) or harm to the individual that risk of air piracy or terrorism or a threat administrative proceeding in the course rely upon the compromised to airline or passenger safety; or a threat of presenting evidence, including information; and to aviation safety, civil aviation, or disclosures to opposing counsel or 3. The disclosure made to such national security. witnesses in the course of civil agencies, entities, and persons is J. To the appropriate Federal, State, discovery, litigation or settlement reasonably necessary to assist in local, tribal, territorial, foreign, or negotiations or in connection with connection with DHS’s efforts to international agency regarding criminal law proceedings. respond to the suspected or confirmed individuals who pose or are suspected S. To the appropriate Federal, State, compromise and prevent, minimize, or of posing a risk to transportation or local, tribal, territorial, foreign, or remedy such harm. national security. international agency responsible for F. To contractors and their agents, K. To a Federal, State, local, tribal, investigating, prosecuting, enforcing, or grantees, experts, consultants, and territorial, foreign, or international implementing a statute, rule, regulation, others performing or working on a agency, where such agency has order, license, or treaty, where DHS/ contract, service, grant cooperative requested information relevant or TSA determines that the information agreement or other assignment for DHS, necessary for the hiring or retention of would assist in the enforcement of a when necessary to accomplish an an individual, or the issuance of a civil or criminal laws.
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T. To the news media and the public, the security threat assessment is no • An explanation of why you believe with the approval of the DHS Chief longer valid, whichever is longer; and the Department would have information Privacy Officer in consultation with where the individual is an actual match on you, counsel, when there exists a legitimate to a watchlist records will be destroyed • Identify which component(s) of the public interest in the disclosure of the 99 years after the security threat Department you believe may have the information or when disclosure is assessment or seven years after TSA is information about you, necessary to preserve confidence in the notified the individual is deceased, • Specify when you believe the integrity of DHS or is necessary to whichever is shorter. records would have been created, demonstrate the accountability of DHS’s • Provide any other information that officers, employees, or individuals SYSTEM MANAGERS AND ADDRESS: will help the FOIA staff determine covered by the system, except to the Transportation Security which DHS component agency may extent it is determined that release of Administration, Office of Law have responsive records, the specific information in the context Enforcement/Federal Air Marshal • If your request is seeking records of a particular case would constitute an Service. 1900 Oracle Way, Suite 500, pertaining to another living individual, unwarranted invasion of personal Reston, VA 20190. you must include a statement from that privacy or a risk to transportation or individual certifying his/her agreement national security. NOTIFICATION PROCEDURE: for you to access his/her records. The Secretary of Homeland Security Without this bulleted information the DISCLOSURE TO CONSUMER REPORTING component(s) may not be able to AGENCIES: has exempted this system from the notification, access, and amendment conduct an effective search, and your None. procedures of the Privacy Act because it request may be denied due to lack of POLICIES AND PRACTICES FOR STORING, is a law enforcement system. However, specificity or lack of compliance with RETRIEVING, ACCESSING, RETAINING, AND TSA will consider individual requests applicable regulations. DISPOSING OF RECORDS IN THE SYSTEM: to determine whether or not information RECORD ACCESS PROCEDURES: STORAGE: may be released. Thus, individuals See ‘‘Notification procedure’’ above. Records in this system may be seeking notification and access to any maintained on paper and in computer- record contained in the system of CONTESTING RECORD PROCEDURES: accessible storage media. Records may records, or seeking to contest its See ‘‘Notification procedure’’ above. also be stored on microfiche and roll content, may submit a request in writing microfilm. Records that are sensitive or to the Headquarters or component’s RECORD SOURCE CATEGORIES: classified are safeguarded in accordance FOIA Officer, whose contact Information maintained in this system with agency procedures, and applicable information can be found at https:// is primarily obtained from the FFDO Executive Orders and statutes. www.dhs.gov/foia under ‘‘contacts.’’ volunteer form or derived from TSA’s FOIA Officer is located at: information the applicant supplied, RETRIEVABILITY: Freedom of Information Act Office, reports from medical personnel on Information can be retrieved by name, TSA–20, 601 S. 12th Street, 11th Floor, physical and psychological results of address, social security, and account East Tower, Arlington, VA 20598–6020, examinations, training records, and law number or other assigned tracking 1–866–FOIA–TSA or 571–227–2300, enforcement and intelligence agency identifier of the individual on whom the Fax: 571–227–1406, E-mail: record systems, commercial and public records are maintained. [email protected]. If an individual databases and Web sites and individuals SAFEGUARDS: believes more than one component interviewed as part of the background maintains Privacy Act records Information in this system is investigation. concerning him or her the individual safeguarded in accordance with may submit the request to the Chief EXEMPTIONS CLAIMED FOR THE SYSTEM: applicable laws, rules and policies. All Privacy Officer, Department of Portions of this system are exempt records are protected from unauthorized Homeland Security, 245 Murray Drive, under 5 U.S.C. 552a(k)(1), (k)(2) and access through appropriate SW., Building 410, STOP–0655, (k)(6) as reflected in the final rule administrative, physical, and technical Washington, DC 20528. published on June 25, 2004. safeguards. These safeguards include restricting access to authorized When seeking records about yourself Mary Ellen Callahan, from this system of records or any other personnel who have a need-to-know; Chief Privacy Officer, Department of using locks, alarm devices, and Departmental system of records your Homeland Security. request must conform with the Privacy passwords; and encrypting data [FR Doc. 2010–8317 Filed 4–12–10; 8:45 am] Act regulations set forth in 6 CFR part communications. TSA file areas are BILLING CODE 4910–62–P locked after normal duty hours and 5. You must first verify your identity, security personnel protect the facilities meaning that you must provide your full from the outside. name, current address and date and DEPARTMENT OF HOMELAND place of birth. You must sign your SECURITY RETENTION AND DISPOSAL: request, and your signature must either Records associated with the be notarized or submitted under 28 Office of the Secretary assessment of FFDO’s will be destroyed U.S.C. 1746, a law that permits one year after TSA is notified that statements to be made under penalty of [Docket No. DHS–2010–0015] access based on security threat perjury as a substitute for notarization. Privacy Act of 1974; Department of assessment is no longer valid; where an While no specific form is required, you Homeland Security Transportation individual was a possible match to a may obtain forms for this purpose from Security Administration—006 watchlist, records will be destroyed the Director, Disclosure and FOIA, Correspondence and Matters Tracking seven years after completion of the http://www.dhs.gov or 1–866–431–0486. Records security threat assessment or one year In addition you should provide the after being notified that access based on following: AGENCY: Privacy Office, DHS.
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ACTION: Notice to alter an existing FOR FURTHER INFORMATION CONTACT: For security. The revised routine use will Privacy Act system of records. general questions please contact: Peter allow disclosure to third parties for the Pietra ([email protected]), Privacy purposes of investigating any matter SUMMARY: In accordance with the Officer, Transportation Security before DHS/TSA. These changes will Privacy Act of 1974 the Department of Administration, TSA–36, 601 South allow DHS/TSA to thoroughly and Homeland Security is updating and 12th Street, Arlington, VA, 20598–6036. efficiently investigate and adjudicate reissuing the Department of Homeland For privacy issues please contact: Mary theft or damage claims before the Security Transportation Security Ellen Callahan (703–235–0780), Chief agency, as well as complaints about Administration—006 Correspondence Privacy Officer, Privacy Office, U.S. employees. DHS/TSA is also revising a and Matters Tracking Records system of Department of Homeland Security, current routine use by adding indirect records, last published on August 18, Washington, DC 20528. air carriers and other facility operators 2003, to reflect necessary programmatic SUPPLEMENTARY INFORMATION: as potential recipients of information changes. As a result of the biennial about individuals who are their review of this system, modifications are I. Background employees, job applicants, or being made to the system of records’ In accordance with the Privacy Act of contractors, or persons to whom they authorities, routine uses, data retention 1974, 5 U.S.C. 552a, the Department of issue identification credentials or grant and disposal, notification procedures, Homeland Security (DHS) clearances to secured areas in and system location. The Department of Transportation Security Administration transportation facilities when relevant Homeland Security Transportation (TSA) is updating and reissuing a DHS/ to such employment, application, Security Administration TSA system of records notice titled, contract, training or the issuance of such Correspondence and Matters Tracking DHS/TSA–006 Correspondence Matters credentials or clearances. Records system covers records Tracking System Records (CMTR) (68 DHS/TSA is removing the routine associated with the management, FR 49496, August 18, 2003). uses involving sharing with the tracking, retrieval, and response to TSA’s mission is to protect the Department of State and other incoming correspondence, all outgoing nation’s transportation systems to Intelligence Community agencies, correspondence, memoranda, ensure freedom of movement for people information relating to persons who documentation, injuries, claims, and and commerce. To achieve this mission, may pose a risk to transportation or complaints associated with all subject TSA is required to develop and adapt its national security. Also removed as a matters over which the Transportation security programs to respond to routine use is the sharing of information Security Administration exercises evolving threats to transportation with the Attorney General of the United jurisdiction. For example, records security. In accordance with the States concerning violations of the pertaining to individuals who make a biennial review of this system, the Brady Handgun Violence Prevention complaint to the agency’s contact center following modifications are being made: Act. Both routine uses are duplicative. • are covered by this system. TSA is updating the authorities for • The retention and disposal section maintenance of the system. has been updated to reflect the records Portions of this system are exempt • under 5 U.S.C. 552a(k)(1) and (k)(2) as DHS/TSA is updating the system of retention schedule approved by the reflected in the final rule published in records to incorporate four DHS National Archives and Records the Federal Register on June 25, 2004. standard routines uses. One routine use Administration (NARA). • This updated system will continue to will allow release of information to The notification section was be included in the Department of appropriate agencies, entities, and changed to reflect that inquiries Homeland Security’s inventory of persons when DHS/TSA suspects or has regarding whether the applicable system record systems. confirmed that the security or contains records about an individual confidentiality of information in a should be directed to TSA’s Freedom of DATES: Submit comments on or before system of records has been Information Act (FOIA) Office. May 13, 2010. This new system will be compromised The second routine use • DHS/TSA updated the system effective May 13, 2010. permits the release of information to the location to reflect the current location of ADDRESSES: You may submit comments, media when there exists a legitimate the system. identified by docket number DHS– public interest in disclosing The CMTR system covers records 2010–0015 by one of the following information. Release under this routine associated with the management, methods: use will require the approval of the tracking, retrieval, and response to • Federal e-Rulemaking Portal: Chief Privacy Officer in consultation incoming correspondence, all outgoing http://www.regulations.gov. Follow the with the counsel. The third routine use correspondence, memoranda, instructions for submitting comments. allows the release of information to a documentation, injuries, claims, and • Fax: 703–483–2999. court, magistrate, administrative complaints associated with all subject • Mail: Mary Ellen Callahan, Chief tribunal or opposing counsel or parties matters over which DHS/TSA exercises Privacy Officer, Privacy Office, where a federal agency is a party or has jurisdiction. For example, records Department of Homeland Security, an interest in the litigation or pertaining to individuals who make a Washington, DC 20528. administrative proceeding. The fourth complaint to the agency’s contact center • Instructions: All submissions routine use allows DHS/TSA to release are covered by this system. DHS/TSA is received must include the agency name information to a former employee when revising its system of records to reflect and docket number for this rulemaking. it is necessary to consult with the necessary programmatic changes. All comments received will be posted former employee regarding a matter that Portions of this system are exempt without change to http:// is within that person’s former area of under 5 U.S.C. 552a(k)(1) and (k)(2) as www.regulations.gov, including any responsibility. reflected in the final rule published in personal information provided. • Additionally, DHS/TSA is revising the Federal Register on June 25, 2004 • Docket: For access to the docket to a routine use that currently allows DHS/ (69 FR 35536). read background documents or TSA to release information only to third Consistent with the Privacy Act, comments received go to http:// parties during the course of an information stored in the CMTR system www.regulations.gov. investigation related to transportation may be shared with other DHS
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components, as well as appropriate SYSTEM NAME: inquiries, claims, and complaints federal, state, local, tribal, foreign, or Transportation Security associated with all subject matters over international government agencies. This Administration 006 Correspondence which TSA exercises jurisdiction. sharing will only take place after DHS and Matters Tracking Records (CMTR). (b) To monitor assignment, determines that the receiving disposition, status, and results of SECURITY CLASSIFICATION: component or agency has a need to correspondence, inquiries, claims, and Sensitive, Classified. know the information to carry out complaints sent to TSA and, generally, national security, law enforcement, SYSTEM LOCATION: to review, analyze, investigate, and study trends identified by the concerns immigration, intelligence, or other Records are maintained at the TSA expressed. functions consistent with the routine Office of the Executive Secretariat, TSA (c) To facilitate and assist in the uses set forth in this system of records Headquarters in Arlington, Virginia. management, tracking, and retrieval of notice. Records may also be located at the information associated with matters and Office of Legislative Affairs, Office of issues under consideration by TSA. II. Privacy Civil Rights and Liberties, Redress The Privacy Act embodies fair Office, and the Office of the ROUTINE USES OF RECORDS MAINTAINED IN THE information principles in a statutory Ombudsman (which includes the SYSTEM, INCLUDING CATEGORIES OF USERS AND THE PURPOSES OF SUCH USES: framework governing the means by Consumer Response Center (CRC)), to which the United States Government the extent those offices maintain matter A. To the Department of Justice (DOJ) tracking information. Records may also collects, maintains, uses, and (including United States Attorney be maintained in other offices at TSA offices) or other federal agency in disseminates individuals’ records. The Headquarters and the various TSA field anticipation of or conducting litigation Privacy Act applies to information that offices. or in proceedings before any court, is maintained in a ‘‘system of records.’’ adjudicative or administrative body, ‘‘ ’’ CATEGORIES OF INDIVIDUALS COVERED BY THE A system of records is a group of any when it is necessary to the litigation and SYSTEM: records under the control of an agency one of the following is a party to the for which information is retrieved by To the extent not covered by any litigation or has an interest in such the name of an individual or by some other system, this system covers litigation: identifying number, symbol, or other individuals who submit inquiries, 1. DHS or any component thereof; identifying particular assigned to the comments, complaints, or claims to TSA 2. Any current or former employee of individual. In the Privacy Act, an in writing, in person, or by telephone, DHS in his/her official capacity, or individual is defined to encompass for response and resolution and those 3. Any current or former employee of United States citizens and lawful with any matter pending before TSA. DHS in his/her individual capacity permanent residents. As a matter of This includes TSA employees, Members where DOJ or DHS has agreed to policy, DHS extends administrative of Congress and their staff, officers and represent the employee, or Privacy Act protections to all employees of other Executive branch 4. The United States or any agency individuals where systems of records agencies and the White House, tort and thereof, is a party to the litigation or has maintain information on U.S. citizens, property claimants who have filed an interest in such litigation, and DHS lawful permanent residents, and claims against the Government or TSA, determines that the records are both stakeholders, passengers in visitors. Individuals may request access relevant and necessary to the litigation transportation, and members of the to their own records that are maintained and the use of such records is public. in a system of records in the possession compatible with the purpose for which or under the control of DHS by CATEGORIES OF RECORDS IN THE SYSTEM: DHS collected the records. complying with DHS Privacy Act Correspondence and information B. To a congressional office from the regulations, 6 CFR part 5. related thereto, including name, record of an individual in response to address, and telephone number of an inquiry from that congressional office The Privacy Act requires each agency made at the request of the individual to to publish in the Federal Register a individuals contacting TSA; records of contacts made by or on behalf of whom the record pertains. description denoting the type and C. To the National Archives and individuals, including inquiries, character of each system of records that Records Administration or other federal comments, complaints, resumes and the agency maintains, and the routine government agencies pursuant to letters of reference; staff reports; TSA’s uses that are contained in each system records management inspections being responses to correspondence and calls; in order to make agency record keeping conducted under the authority of 44 and staff recommendations on actions practices transparent, to notify U.S.C. 2904 and 2906. requiring approval or action by a TSA individuals regarding the uses to their D. To an agency, organization, or official. The system also includes records are put, and to assist individuals individual for the purpose of performing records, including those prepared by to more easily find such files within the audit or oversight operations as TSA employees, related to matters agency. Below is the description of the authorized by law, but only such under consideration by TSA. DHS/TSA–006 CMTR system system of information as is necessary and relevant records. AUTHORITY FOR MAINTENANCE OF THE SYSTEM: to such audit or oversight function. In accordance with 5 U.S.C. 552a(r), 5 U.S.C. 301, 28 U.S.C. 1346(b), E. To appropriate agencies, entities and persons when: DHS has provided a report of this 1402(b), 2401(b), 2412(c), 2671–80; 31 1. DHS suspects or has confirmed that system of records to the Office of U.S.C. 3325, 3332, 3701, 3711, 3721; 49 the security or confidentiality of Management and Budget and to U.S.C. 114. information in the system of records has Congress. PURPOSES: been compromised; SYSTEM OF RECORDS: (a) To facilitate and assist in the 2. The Department has determined management, tracking, retrieval, and that as a result of the suspected or DHS/TSA–006. response to incoming correspondence, confirmed compromise there is a risk of
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harm to economic or property interests, agency, in response to queries regarding of presenting evidence, including identity theft or fraud, or harm to the persons who may pose a risk to disclosures to opposing counsel or security or integrity of this system or transportation or national security; a witnesses in the course of civil other systems or programs (whether risk of air piracy or terrorism or a threat discovery, litigation or settlement maintained by DHS or another agency or to airline or passenger safety; or a threat negotiations or in connection with entity) or harm to the individual that to aviation safety, civil aviation, or criminal law proceedings. rely upon the compromised national security. R. To the news media and the public, information; and J. To a federal, state, local, tribal, with the approval of the Chief Privacy 3. The disclosure made to such territorial, foreign, or international Officer in consultation with counsel, agencies, entities, and persons is agency, where such agency has where there exists a legitimate public reasonably necessary to assist in requested information relevant or interest in the disclosure of the connection with DHS’s efforts to necessary for the hiring or retention of information except to the extent it is respond to the suspected or confirmed an individual, or the issuance of a determined that release of the specific compromise and prevent, minimize, or security clearance, license, contract, information in the context of a remedy such harm. grant, or other benefit. particular case would constitute an F. To contractors and their agents, K. To a federal, state, local, tribal, unwarranted invasion of personal grantees, experts, consultants, and territorial, foreign, or international privacy or a risk to transportation or others performing or working on a agency, if necessary to obtain national security. contract, service, grant, cooperative information relevant to a DHS/TSA agreement, or other assignment for DHS decision concerning initial or recurrent DISCLOSURE TO CONSUMER REPORTING AGENCIES: when necessary to perform an agency security threat assessment, the hiring or function related to this system of retention of an employee; the issuance Privacy Act information may be records. Individuals provided of a security clearance, license, reported to consumer reporting agencies information under this routine use are endorsement, contract, grant, waiver, pursuant to 5 U.S.C. 552a(b)(12) for the subject to the same Privacy Act credential, or other benefit and to purpose of collecting a debt on behalf of requirements and limitations on facilitate any associated payment and the United States Government. disclosure as are applicable to DHS accounting. POLICIES AND PRACTICES FOR STORING, officers and employees. L. To international and foreign RETRIEVING, ACCESSING, RETAINING, AND G. To an appropriate federal, state, governmental authorities in accordance DISPOSING OF RECORDS IN THE SYSTEM: with law and formal or informal tribal, local, international, or foreign STORAGE: international agreement. agency, including law enforcement, or Records may be maintained on paper, other appropriate authority charged M. To third parties during the course of an investigation into any matter audio, and video recordings, and in with investigating or prosecuting a computer accessible storage media. violation or enforcing or implementing before DHS/TSA to the extent necessary to obtain information pertinent to the Records may also be stored on a law, rule, regulation, or order, where microfiche and roll microfilm. Records a record, either on its face or in investigation. N. To airport operators, aircraft that are sensitive or classified are conjunction with other information, safeguarded in accordance with agency indicates a violation or potential operators, and maritime and surface transportation operators, indirect air procedures and applicable Executive violation of law, which includes Orders and statutes. criminal, civil, or regulatory violations carriers, and other facility operators and such disclosure is proper and about individuals who are their RETRIEVABILITY: consistent with the official duties of the employees, job applicants, or Records are retrieved by name, Social person making the disclosure. contractors, or persons to whom they security number or other assigned H. To the United States Department of issue identification credentials or grant identifier of an individual covered by Transportation and its operating clearances to secured areas in this system. administrations when relevant or transportation facilities when relevant necessary to to such employment, application, SAFEGUARDS: 1. Ensure safety and security in any contract, or the issuance of such Information in this system is mode of transportation; credentials or clearances. safeguarded in accordance with 2. Enforce safety- and security-related O. To a debt collection agency for the applicable laws, rules and policies. All regulations and requirements; purpose of debt collection. records are protected from unauthorized 3. Assess and distribute intelligence P. To a former employee of DHS, in access through appropriate or law enforcement information related accordance with applicable regulations, administrative, physical, and technical to transportation security; for purposes of responding to an official safeguards. These safeguards include 4. Assess and respond to threats to inquiry by a federal, state or local restricting access to authorized transportation; government entity or professional personnel who have a need-to-know and 5. Oversee the implementation and licensing authority; or facilitating password protection identification ensure the adequacy of security communications with a former features. TSA file areas are locked after measures at airports and other employee that may be necessary for normal duty hours and the facilities are transportation facilities; personnel-related or other official protected from the outside by security 6. Plan and coordinate any actions or purposes where the Department requires personnel. activities that may affect transportation information or consultation assistance safety and security or the operations of from the former employee regarding a RETENTION AND DISPOSAL: transportation operators; or matter within that person’s former area In accordance with NARA approved 7. The issuance, maintenance, or of responsibility. records schedule, N1–560–03–4, renewal of a license, certificate, Q. To a court, magistrate, or Contact Center and Ombudsman contract, grant, or other benefit. administrative tribunal where a federal inquiries are destroyed after three years; I. To a federal, state, local, tribal, agency is a party to the litigation or correspondence files including territorial, foreign, or international administrative proceeding in the course Congressional correspondence are
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retained permanently; redress records • Specify when you believe the ACTION: Notice to alter an existing are retained for seven years for records would have been created, Privacy Act system of records. individuals who were cleared as • Provide any other information that possible matches, and 99 years for will help the FOIA staff determine SUMMARY: In accordance with the individual who were actual matches. which DHS component agency may Privacy Act of 1974 the Department of have responsive records, Homeland Security proposes to update SYSTEM MANAGER AND ADDRESS: • If your request is seeking records and reissue a Department of Homeland Director, Office of the Executive pertaining to other living individual, Security system of records notice titled, Secretariat, TSA Headquarters, 601 S. you must include a statement from the Transportation Security 12th Street, Arlington, VA 20598. individual certifying his/her agreement Administration—011 Transportation for you to access his/her records. Security Intelligence Service Operations NOTIFICATION PROCEDURE: Without this bulleted information the Files previously published on December The Secretary of Homeland Security component(s) may not be able to 10, 2004 to reflect necessary has exempted this system from the conduct an effective search, and your programmatic changes. As a result of the notification, access, and amendment request may be denied due to lack of biennial review of this system, modifications are being made to the procedures of the Privacy Act because it specificity or lack of compliance with system of records’ categories of is a law enforcement system as reflected applicable regulations. individuals, categories of records, in the final rule published on June 25, RECORD ACCESS PROCEDURE: routine uses, record source categories, 2004 (69 FR 35536). However, TSA will retention and disposal, and notification consider individual requests to Same as ‘‘Notification Procedure’’ procedure. The Transportation Security determine whether or not information above. Intelligence Service Operations Filing may be released. This, individuals CONTESTING RECORD PROCEDURES: System contains records on individuals seeking notification of and access to any Same as ‘‘Notification Procedure’’ identified in intelligence, record contained in this system of above. counterintelligence, transportation records, or seeking to contest its security and information systems content, may submit a request in writing RECORD SOURCE CATEGORIES: security records that relate to the to the Headquarters or component’s Records are obtained from calls and Transportation Security FOIA Officer, whose contact correspondence from or on behalf of Administration’s mission. For example, information can be found at http:// individuals who contact TSA with this system contains information on www.dhs.gov/foia under ‘‘contacts.’’ inquiries, comments, complaints, or individuals involved in terrorism or the TSA’s FOIA office may be reached by claims, as well as from TSA employees compromise of classified information. mail at Transportation Security or contractors and witnesses, and other Portions of this system are exempt Administration, TSA–20, FOIA Office, third parties who provide pertinent under 5 U.S.C. 552a(j)(2), (k)(1), (k)(2) 601 S. 12th Street, Arlington, VA 20598. information where applicable. and (k)(5) as reflected in the final rule If an individual believes more than one Information may also be collected from published in the Federal Register on component maintains Privacy Act documents such as records of the August 4, 2006. records concerning him/her the contact made with TSA, incident This updated system will continue to individual may submit the request to reports, and from other sources, such as be included in the Department of the Chief Privacy Officer, Department of employers, state and local agencies, Homeland Security’s inventory of Homeland Security, 245 Murray Drive, other federal agencies, and related record systems. SW., Building 410, STOP–0655, material for background as appropriate. DATES: Submit comments on or before Washington, DC 20528. May 13, 2010. This new system will be When seeking records about yourself EXEMPTIONS CLAIMED FOR THE SYSTEM: effective May 13, 2010. from this system of records or any other Portions of this system are exempt ADDRESSES: You may submit comments, Departmental system or records you under 5 §§ 552a(k)(1) and (k)(2) as identified by docket number DHS– request must conform with the privacy reflected in the final rule published on 2010–0016 by one of the following Act regulations set forth in 6 CFR part June 25, 2004 (69 FR 35536). methods: 5. You must first verify your identity, • Mary Ellen Callahan, Federal e-Rulemaking Portal: meaning that you must provide your full http://www.regulations.gov. Follow the name, current address and data and Chief Privacy Officer, Department of Homeland Security. instructions for submitting comments. place of birth. You must sign your • Fax: 703–483–2999. request, and your signature must be [FR Doc. 2010–8316 Filed 4–12–10; 8:45 am] • Mail: Mary Ellen Callahan, Chief notarized or submitted under 28 U.S.C. BILLING CODE 4910–62–P Privacy Officer, Privacy Office, 1746, a law that permits statements to Department of Homeland Security, be made under penalty of perjury as a Washington, DC 20528. DEPARTMENT OF HOMELAND substitute for notarization. While no • Instructions: All submissions SECURITY specific form is required, you may received must include the agency name obtain forms for this purpose from the Office of the Secretary and docket number for this rulemaking. Director, Disclosure and FOIA, http:// All comments received will be posted www.dhs.gov or 1–866–431–0486. In [Docket No. DHS–2010–0016] without change to http:// addition you should provide the www.regulations.gov, including any Privacy Act of 1974; Department of following: personal information provided. Homeland Security Transportation • An explanation of why you believe Docket: For access to the docket to Security Administration—011, read background documents or the Department would have information Transportation Security Intelligence on you, comments received go to http:// • Service Operations Files Systems of www.regulations.gov. Identify which component(s) of the Records Department you believe may have the FOR FURTHER INFORMATION CONTACT: For information about you, AGENCY: Privacy Office, DHS. general questions please contact: Peter
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Pietra, Privacy Officer, Transportation required for administrative purposes need to know the information to carry Security Administration, TSA–36, 601 related to the effective and efficient out national security, law enforcement, South 12th Street, Arlington, VA 20598– administration of transportation security immigration, intelligence, or other 6036 or [email protected]. For laws. functions consistent with the routine privacy issues please contact: Mary • TSA is also revising a current uses set forth in this system of records Ellen Callahan (703–235–0780), Chief routine use by adding indirect air notice. Privacy Officer, Privacy Office, U.S. carriers and other facility operators as Department of Homeland Security, potential recipients of information about II. Privacy Act Washington, DC 20528. individuals who are their employees, The Privacy Act embodies fair SUPPLEMENTARY INFORMATION: job applicants, or contractors, or persons information principles in a statutory to whom they issue identification framework governing the means by I. Background credentials or grant clearances to which the United States Government In accordance with the Privacy Act of secured areas in transportation facilities collects, maintains, uses, and 1974, 5 U.S.C. 552a, the Department of when relevant to such employment, disseminates individuals’ records. The Homeland Security (DHS) application, contract, training or the Privacy Act applies to information that Transportation Security Administration issuance of such credentials or is maintained in a ‘‘system of records.’’ (TSA) proposes to update and reissue a clearances. A ‘‘system of records’’ is a group of any • DHS/TSA system of records notice The record source categories are records under the control of an agency titled, DHS/TSA–011, Transportation updated to reflect the use of commercial for which information is retrieved by Security Intelligence Service (TSIS) and public record databases and Web the name of an individual or by some Operations Files System of Records (69 sites to obtain information regarding the identifying number, symbol, or other FR 71828, December 10, 2004). identity of individuals who attempt to identifying particular assigned to the TSA’s mission is to protect the gain access to the sterile areas of the individual. In the Privacy Act, an nation’s transportation systems to airport and for whom identity needs to individual is defined to encompass ensure freedom of movement for people be verified or individuals who are being United States citizens and lawful and commerce. To achieve this mission, vetted to qualify as Federal flight deck permanent residents. As a matter of TSA is required to develop and adapt its officers. The record source categories to policy, DHS extends administrative security programs to respond to include Federal, State, local and foreign Privacy Act protections to all evolving threats to transportation agencies; formerly only U.S. agencies individuals where systems of records security. In accordance with the were included. maintain information on U.S. citizens, • For each system of records covered biennial review of this system, the lawful permanent residents, and by this notice, the retention and following modifications are being made: visitors. Individuals may request access • The categories of records section is disposal sections are updated to reflect to their own records that are maintained updated to include biometric records. the records retention schedules in a system of records in the possession • DHS/TSA is incorporating four DHS approved by the National Archives and or under the control of DHS by standard routines uses. One routine use Records Administration (NARA). complying with DHS Privacy Act will allow release of information to • The notification section for each regulations, 6 CFR part 5. appropriate agencies, entities, and system of records covered by this notice persons when DHS/TSA suspects or has was changed to reflect that inquiries The Privacy Act requires each agency confirmed that the security or regarding whether the applicable system to publish in the Federal Register a confidentiality of an information system contains records about an individual description denoting the type and of records has been compromised. should be directed to TSA’s Freedom of character of each system of records that Another routine use permits the release Information Act (FOIA) Office. the agency maintains, and the routine of information to the media when there The TSIS Operations Filing System uses that are contained in each system exists a legitimate public interest in contains records on individuals in order to make agency recordkeeping disclosing information. Release under identified in intelligence, practices transparent, to notify this routine use will require the counterintelligence, transportation individuals regarding the uses to their approval of the DHS Chief Privacy security and information systems records are put, and to assist individuals Officer in consultation with counsel. security records that relate to TSA’s to more easily find such files within the Another routine use allows the release mission. For example, this system agency. Below is the description of the of information to a court, magistrate, contains information on individuals DHS/TSA–011 TSIS Operations Files administrative tribunal or opposing involved in terrorism or the compromise system of records. counsel or parties where a Federal of classified information. DHS/TSA is In accordance with 5 U.S.C. 552a(r), agency is a party or has an interest in revising its system of records to reflect DHS has provided a report of this the litigation or administrative necessary programmatic changes. system of records to the Office of proceeding. The fourth routine use Portions of this system are exempt Management and Budget and to allows DHS/TSA to release information under 5 U.S.C. 552a(j)(2), (k)(1), (k)(2) Congress. to a former employee when it is and (k)(5) as reflected in the final rule SYSTEM OF RECORDS necessary to consult with the former published on August 4, 2006 in 71 FR employee regarding a matter that is 44223. DHS/TSA–011 within that person’s former area of Consistent with the Privacy Act, responsibility. information stored in the TSIS SYSTEM NAME: • TSA is revising a routine use by Operations Files System may be shared Transportation Security adding indirect air carriers and other with other DHS components, as well as Administration 011 Transportation facility operators as potential recipients appropriate Federal, State, local, Tribal, Security Intelligence Service (TSIS) of information from these systems when foreign, or international government Operations Files. appropriate to address a threat or agencies. This sharing will only take potential threat to transportation place after DHS determines that the SECURITY CLASSIFICATION: security or national security, or when receiving component or agency has a Classified, sensitive.
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SYSTEM LOCATION: pursuant to 5 U.S.C. 552a(b)(3) as performing or working on a contract, Records are maintained at the follows: service, grant cooperative agreement, or Transportation Security A. To the Department of Justice (DOJ) other assignment for DHS, when Administration’s Office of the (including United States attorney necessary to accomplish an agency Transportation Security Intelligence Offices) or other Federal agency in function related to this system of Service in Arlington, Virginia and field anticipation of conducing, or records. Individuals provided offices. conducting litigation or in proceedings information under this routine use are before any court, adjudicative or subject to the same Privacy Act CATEGORIES OF INDIVIDUALS COVERED BY THE administrative body, when it is requirements and limitations on SYSTEM: necessary to the litigation and one of the disclosure as are applicable to DHS Individuals identified in intelligence, following is a party to the litigation or officers and employees. counterintelligence, transportation has an interest in such litigation: G. To an appropriate Federal, State, security, or information system security 1. DHS or any component thereof; Tribal, local, international, or foreign reports and supporting materials, 2. Any current or former employee of agency, including law enforcement, or including but not limited to individuals DHS in his/her official capacity, or other appropriate authority charged involved in matters of intelligence, law 3. Any current or former employee of with investigating or prosecuting a enforcement or transportation security, DHS in his/her individual capacity violation or enforcing or implementing information systems security, the where DOJ or DHS has agreed to a law, rule, regulation, or order, where compromise of classified information, or represent the employee, or a record, either on its face or in terrorism. 4. The United States or any agency conjunction with other information, thereof, is a party to the litigation or has indicates a violation or potential CATEGORIES OF RECORDS IN THE SYSTEM: an interest in such litigation, and DHS violation of law, which includes Records include biographic and determines that the records are both criminal, civil, or regulatory violations biometric information; intelligence relevant and necessary to the litigation and such disclosure is proper and requirements, analysis, and reporting; and the use of such records is consistent with the official duties of the information systems security analysis compatible with the purpose for which person making the disclosure. and reporting; articles, public-source DHS collected the records. H. To the United States Department of data, and other published information B. To a congressional office from the Transportation, its operating on individuals and events of interest to record of an individual in response to administrations, or the appropriate State TSA; actual or purported compromises an inquiry from that congressional office or local agency when relevant or of classified intelligence; made at the request of the individual to necessary to: countermeasures in connection whom the record pertains. 1. Ensure safety and security in any C. To the National Archives and therewith; identification of classified mode of transportation; Records Administration or other Federal source documents and distribution 2. Enforce safety- and security-related agencies pursuant to records thereof; records related to transportation regulations and requirements; management inspections being security matters (e.g., reports of 3. Assess and distribute intelligence conducted under the authority of 44 security-related incidents), and law or law enforcement information related U.S.C. 2904 and 2906. enforcement records as they pertain to to transportation security; issues involving transportation security. D. To an agency, organization, or individual for the purpose of performing 4. Assess and respond to threats to AUTHORITY FOR MAINTENANCE OF THE SYSTEM: audit or oversight operations as transportation; 5. Oversee the implementation and 49 U.S.C. 114; National Security Act authorized by law, but only such ensure the adequacy of security of 1947, as amended, 50 U.S.C. 403– information as is necessary and relevant measures at airports and other 3(d); National Security Agency Act of to such audit or oversight function. transportation facilities; 1959, Pub. L. 86–36, as amended, 50 E. To appropriate agencies, entities, 6. Plan and coordinate any actions or U.S.C. 402 Note; E.O. 12333; E.O. 13292 and persons when: activities that may affect transportation and 12958; E.O. 9397; and National 1. DHS suspects or has confirmed that safety and security or the operations of Security Directive 42. the security or confidentiality of information in the system of records has transportation operators; or PURPOSE(S): been compromised; 7. The issuance, maintenance, or To maintain records on intelligence, 2. DHS has determined that as a result renewal of a license, certificate, counterintelligence, transportation of the suspected or confirmed contract, grant, or other benefit. security, and information systems compromise there is a risk of harm to I. To Federal, State, local, Tribal, security matters as they relate to TSA’s economic or property interests, identity territorial, foreign, or international mission of protecting the nation’s theft or fraud, or harm to the security or agencies to provide intelligence, transportation systems. To identify integrity of this system or other systems counterintelligence, information potential threats to transportation or programs (whether maintained by systems and transportation security security, uphold and enforce the law, DHS or another agency or entity) that information, and other information for and ensure public safety. rely upon the compromised the purpose of counterintelligence or information; antiterrorism activities authorized by ROUTINE USES OF RECORDS MAINTAINED IN THE 3. The disclosure made to such U.S. law or Executive Order or for the SYSTEM, INCLUDING CATEGORIES OF USERS AND agencies, entities, and persons is purpose of enforcing laws that protect THE PURPOSES OF SUCH USES: reasonably necessary to assist in national security of the U.S. In addition to those disclosures connection with DHS’s efforts to J. To U.S. Government agencies generally permitted under 5 U.S.C. respond to the suspected or confirmed regarding compromises of classified 552a(b) of the privacy act, all or a compromise and prevent, minimize, or information including the document(s) portion of the records or information remedy such harm. apparently compromised, implications contained in this system may be F. To contractors and their agents, of disclosure of intelligence sources and disclosed outside DHS as a routine use grantees, experts, consultants, or others methods, investigative data on
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compromises, and statistical and security, or when required for all applicable DHS automated systems substantive analysis of the data. administrative purposes related to the security and access policies. Strict K. To any U.S. Government effective and efficient administration of controls have been imposed to minimize organization in order to facilitate any transportation security laws. the risk of compromising the security, employment, detail, liaison, or T. To a court, magistrate, or information that is being stored. Access contractual decision by any U.S. administrative tribunal where a Federal to the computer system containing the Government organization, or to facilitate agency is a party to the litigation or records in this system is limited to those access to any U.S. Government administrative proceeding in the course individuals who have a need to know information system. of presenting evidence, including the information for the performance of L. To U.S. agencies involved in the disclosures to opposing counsel or their official duties and who have protection of intelligence sources and witnesses in the course of civil appropriate clearances or permissions. methods to facilitate such protection discovery, litigation, or settlement and to support intelligence analysis and negotiations or in connection with RETENTION AND DISPOSAL: reporting. criminal law proceedings. Pursuant to the approved National M. To a Federal, State, local, Tribal, U. To a former employee of DHS, in Archives and Records Administration territorial, foreign, or international accordance with applicable regulations, records retention schedule N1–560–04– agency, where such agency has for purposes of responding to an official 12, routine and insignificant case files requested information relevant or inquiry by a Federal, State, or local are destroyed after thirty years; necessary for the hiring or retention of government entity or professional significant case files are retained an individual, or the issuance of a licensing authority; or facilitating permanently; watch logs are destroyed security clearance, license, contract, communications with a former after thirty years; watchlists are grant, or other benefit. employee that may be necessary for destroyed 99 years after date of entry or N. To a Federal, State, local, Tribal, personnel-related or other official seven years after confirmation of death, territorial, foreign, or international purposes where the Department requires whichever is sooner. agency, if necessary to obtain information or consultation assistance SYSTEM MANAGER(S) AND ADDRESS: information relevant to a DHS/TSA from the former employee regarding a Transportation Security decision concerning the hiring or matter within that person’s former area Administration, Special Assistant, retention of an employee, the issuance of responsibility. Office of Intelligence, TSA–10, 601 of a security clearance, license, contract, V. To the news media and the public, South 12th Street, Arlington, VA 20598. grant, or other benefit. with the approval of the DHS Privacy O. To international and foreign Officer in consultation with counsel, NOTIFICATION PROCEDURE: governmental authorities in accordance when there exists a legitimate public with law and formal or informal The Secretary of Homeland Security interest in the disclosure of the has exempted this system from the international agreement. information except to the extent it is P. To third parties during the course notification, access, and amendment determined that release of the specific of or as follow-up to an investigation procedures of the Privacy Act because it information in the context of a into violations or potential violations of is a law enforcement system. However, particular case would constitute an the law, or an investigation related to the Transportation Security unwarranted invasion of personal the hiring or retention of an individual, Administration will consider individual privacy or a risk to transportation or or the issuance of a security clearance, requests to determine whether or not national security. license, contract, grant, or other benefit, information may be released. Thus, to the extent necessary to obtain DISCLOSURE TO CONSUMER REPORTING individuals seeking notification and information pertinent to the follow-up AGENCIES: access to any record contained in the inquiry or investigation. None. system of records, or seeking to contest Q. To airport operators, aircraft its content, may submit a request in operators, maritime and surface POLICIES AND PRACTICES FOR STORING, writing to the Headquarters or transportation operators, indirect air RETRIEVING, ACCESSING, RETAINING, AND component’s FOIA Officer, whose carriers, and other facility operators DISPOSING OF RECORDS IN THE SYSTEM: contact information can be found at about individuals who are their STORAGE: https://www.dhs.gov/foia under employees, job applicants, or Records may be maintained on paper, ‘‘contacts.’’ TSA’s FOIA Officer is contractors, or persons to whom they audio and video recordings, and in located at: Freedom of Information Act issue identification credentials or grant computer-accessible storage media. Office, TSA–20, 601 S. 12th Street, 11th clearances to secured areas in Records may also be stored on Floor, East Tower, Arlington, VA transportation facilities when relevant microfiche and roll microfilm. Records 20598–6020, 1–866–FOIA–TSA or 571– to such employment, application, that are sensitive or classified are 227–2300, Fax: 571–227–1406, E-mail: contract, training or the issuance of such safeguarded in accordance with agency [email protected]. If an individual credentials or clearances. procedures, and applicable Executive believes more than one component R. To the appropriate Federal, State, Orders and statutes. maintains Privacy Act records local, Tribal, territorial, foreign, or concerning him or her the individual international agency regarding RETRIEVABILITY: may submit the request to the Chief individuals who pose or are suspected Records may be retrieved by the Privacy Officer, Department of of posing a risk to transportation or individual’s name, Social Security Homeland Security, 245 Murray Drive, national security. number, or other assigned personal SW., Building 410, STOP–0655, S. To airport operators, aircraft identifier. Washington, DC 20528. operators, maritime and surface When seeking records about yourself transportation operators, indirect air SAFEGUARDS: from this system of records or any other carriers, or other facility operators when Records in this system are Departmental system of records your appropriate to address a threat or safeguarded in accordance with request must conform with the Privacy potential threat to transportation applicable rules and policies, including Act regulations set forth in 6 CFR part
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5. You must first verify your identity, DEPARTMENT OF HOMELAND other forms of information technology, meaning that you must provide your full SECURITY e.g., permitting electronic submission of name, current address and date and responses. place of birth. You must sign your U.S. Citizenship and Immigration Services Overview of This Information request, and your signature must either Collection be notarized or submitted under 28 U.S.C. 1746, a law that permits Agency Information Collection (1) Type of Information Collection: statements to be made under penalty of Activities: Form N–600K, Revision of a Revision of a currently approved perjury as a substitute for notarization. Currently Approved Information information collection. While no specific form is required, you Collection; Comment Request (2) Title of the Form/Collection: may obtain forms for this purpose from Application for Citizenship and ACTION: 60-Day Notice of Information the Director, Disclosure and FOIA, Issuance of Certificate under Section Collection under Review: Form N–600K, http://www.dhs.gov or 1–866–431–0486. 322. Application for Citizenship and In addition you should provide the (3) Agency form number, if any, and Issuance of Certificate under Section the applicable component of the following: 322. OMB Control No. 1615–0087. • An explanation of why you believe Department of Homeland Security the Department would have information sponsoring the collection: Form N– The Department of Homeland 600K, U.S. Citizenship and Immigration on you, Security, U.S. Citizenship and • Identify which component(s) of the Services. Immigration Services has submitted the (4) Affected public who will be asked Department you believe may have the following information collection request or required to respond, as well as a brief information about you, for review and clearance in accordance • Specify when you believe the abstract: Primary: Individuals or with the Paperwork Reduction Act of Households. This form provides an records would have been created, 1995. The information collection is • Provide any other information that organized framework for establishing published to obtain comments from the the authenticity of an applicant’s will help the FOIA staff determine public and affected agencies. Comments which DHS component agency may eligibility and is essential for providing are encouraged and will be accepted for prompt, consistent and correct have responsive records, 60 days until June 14, 2010. • If your request is seeking records processing of such applications for Written comments and suggestions citizenship under section 322 of the pertaining to another living individual, regarding items contained in this notice, you must include a statement from that Immigration and Nationality Act. and especially with regard to the (5) An estimate of the total number of individual certifying his/her agreement estimated public burden and associated respondents and the amount of time for you to access his/her records. response time should be directed to the estimated for an average respondent to Without this bulleted information the Department of Homeland Security respond: 1,500 responses at 1 hour and component(s) may not be able to (DHS), USCIS, Chief, Regulatory 35 minutes (1.583 hours) per response. conduct an effective search, and your Products Division, Clearance Office, 111 (6) An estimate of the total public request may be denied due to lack of Massachusetts Avenue, NW., burden (in hours) associated with the specificity or lack of compliance with Washington, DC 20529–2210. collection: 2,374 annual burden hours. applicable regulations. Comments may also be submitted to If you need a copy of the information RECORD ACCESS PROCEDURE: DHS via facsimile to 202–272–8352, or collection instrument, please visit: See ‘‘Notification procedure’’ above. via e-mail at [email protected]. When http://www.regulations.gov/. submitting comments by e-mail please We may also be contacted at: USCIS, CONTESTING RECORD PROCEDURE: add the OMB Control Number 1615– Regulatory Products Division, 111 See ‘‘Notification procedure’’ above. 0087 in the subject box. Massachusetts Avenue, NW., Written comments and suggestions Washington, DC 20529–2210, telephone RECORD SOURCE CATEGORIES: from the public and affected agencies number 202–272–8377. Information contained in this system concerning the collection of information Dated: March 31, 2010. is obtained from subject individuals; should address one or more of the Stephen Tarragon, other Federal, State, local and foreign following four points: Deputy Chief, Regulatory Products Division, agencies and organizations; hard-copy (1) Evaluate whether the proposed U.S. Citizenship and Immigration Services. media, including periodicals, collection of information is necessary Department of Homeland Security. newspapers, and broadcast transcripts, for the proper performance of the [FR Doc. 2010–8361 Filed 4–12–10; 8:45 am] and commercial and public record functions of the agency, including BILLING CODE 9111–97–P databases and Web sites; public and whether the information will have classified reporting, intelligence source practical utility; documents, investigative reports, and (2) Evaluate the accuracy of the DEPARTMENT OF HOMELAND correspondence. agencies estimate of the burden of the SECURITY EXEMPTIONS CLAIMED FOR THE SYSTEM: proposed collection of information, Coast Guard Portions of this system are exempt including the validity of the under 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), methodology and assumptions used; [Docket No. USCG–2010–0119] and (k)(5) as reflected in the final rule (3) Enhance the quality, utility, and Notification of the Imposition of published on August 4, 2006, in 71 FR clarity of the information to be Conditions of Entry for Certain Vessel 44223. collected; and (4) Minimize the burden of the Arriving to the United States From the Mary Ellen Callahan, collection of information on those who Democratic Republic of Sao Tome and Chief Privacy Officer, Department of are to respond, including through the Principe Homeland Security. use of appropriate automated, AGENCY: Coast Guard, DHS. [FR Doc. 2010–8315 Filed 4–12–10; 8:45 am] electronic, mechanical, or other ACTION: Notice. BILLING CODE 4910–62–P technological collection techniques or
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SUMMARY: The Coast Guard announces State of this determination pursuant to by armed, private security guards and that it will impose conditions of entry 46 U.S.C. 70110(c). that they have total visibility of the on vessels arriving from the country of The United States notified the exterior (both landside and waterside) of the Democratic Republic of Sao Tome Democratic Republic of Sao Tome and the vessel while in U.S. ports. The and Principe. Principe of this determination in July of number and position of the guards has DATES: The policy announced in this 2009, and identified steps necessary to to be acceptable to the cognizant Coast notice will become effective April 27, improve the antiterrorism measures in Guard Captain of the Port prior to the 2010. use at ports in the Democratic Republic vessel’s arrival. of Sao Tome and Principe, as required Consistent with 46 U.S.C. 70110, the ADDRESSES: This notice will be available by 46 U.S.C. 70109. The United States United States may deny entry into the for inspection and copying at the Docket conducted a visit in February 2010 United States to any vessel that does not Management Facility at the U.S. reconfirming that the identified meet the conditions set forth herein. Department of Transportation, Room deficiencies have not been corrected. This notice also informs passengers of W12–140 on the Ground Floor of the Accordingly, effective April 27, 2010, the ineffective anti-terrorism measures West Building, 1200 New Jersey the Coast Guard will impose the at ports in the Democratic Republic of Avenue, SE., Washington, DC 20590, following conditions of entry on vessels Sao Tome and Principe. between 9 a.m. and 5 p.m., Monday that visited ports in the Democratic This notice is issued under authority through Friday, except Federal holidays. Republic of Sao Tome and Principe of 46 U.S.C. 70110(a)(3). The telephone number is 202–366– during their last five port calls. Vessels Dated: March 25, 2010. 9329. must: • Sally Brice-O’Hara, FOR FURTHER INFORMATION CONTACT: If Implement measures per the ship’s security plan equivalent to Security Rear Admiral, USCG, Deputy Commandant you have questions on this notice, call for Operations. Mr. Michael Brown, International Port Level 2 while in a port in the [FR Doc. 2010–8373 Filed 4–12–10; 8:45 am] Security Evaluation Division, Coast Democratic Republic of Sao Tome and Guard, telephone 202—372–1081. If you Principe. As defined in the ISPS Code BILLING CODE 9110–04–P have questions on viewing the docket, and incorporated herein, ‘‘Security Level call Renee V. Wright, Program Manager, 2’’ refers to the ‘‘level for which Docket Operations, telephone 202–366– appropriate additional protective DEPARTMENT OF HOUSING AND 9826 or (toll free) 1–800–647–5527. security measures shall be maintained URBAN DEVELOPMENT for a period of time as a result of [Docket No. FR–5376–N–26] SUPPLEMENTARY INFORMATION: heightened risk of a security incident.’’ • Background and Purpose Ensure that each access point to the Ginnie Mae Multiclass Securities ship is guarded and that the guards have Program Documents Section 70110 of title 46, United total visibility of the exterior (both States Code, enacted as part of section landside and waterside) of the vessel AGENCY: Office of the Chief Information 102(a) of the Maritime Transportation while the vessel is in ports in the Officer, HUD. Security Act of 2002 (Pub. L. 107–295, Democratic Republic of Sao Tome and ACTION: Notice. Nov. 25, 2002), authorizes the Secretary Principe. of Homeland Security to prescribe • Guards may be provided by the SUMMARY: The proposed information conditions of entry into the United ship’s crew; however, additional collection requirement described below States on vessels arriving from ports that crewmembers should be placed on the has been submitted to the Office of are not maintaining effective anti- ship if necessary to ensure that limits on Management and Budget (OMB) for terrorism measures and may deny entry maximum hours of work are not review, as required by the Paperwork into the United States to any vessel that exceeded and/or minimum hours of rest Reduction Act. The Department is does not meet such conditions. It also are met, or provided by outside security soliciting public comments on the requires public notice of the ineffective forces approved by the ship’s master subject proposal. anti-terrorism measures. The Secretary and Company Security Officer. As This collection of information is has delegated to the Coast Guard defined in the ISPS Code and required in connection with the authority to carry out the provisions of incorporated herein, ‘‘Company Security Multiclass Securities Program. The this section. Previous notices have Officer’’ refers to the ‘‘person designated intent of the Multiclass Securities imposed or removed conditions of entry by the Company for ensuring that a ship program is to increase liquidity in the on vessels arriving from certain security assessment is carried out, that secondary mortgage market and to countries, and those conditions of entry a ship security plan is developed, attract new sources of capital for and the countries they pertain to remain submitted for approval, and thereafter federally insured or guaranteed in effect unless modified by this notice. implemented and maintained and for residential loans. Based on an assessment conducted liaison with port facility security DATES: Comments Due Date: May 13, pursuant to the provisions of 46 U.S.C. officers and the ship security officer.’’ 2010. 70108 and the International Ship and • Attempt to execute a Declaration of ADDRESSES: Port Facility (ISPS) Code, the Coast Security while in port in the Democratic Interested persons are Guard has determined that ports in the Republic of Sao Tome and Principe; invited to submit comments regarding Democratic Republic of Sao Tome and • Log all security actions in the ship’s this proposal. Comments should refer to Principe are not maintaining effective log; and the proposal by name and/or OMB anti-terrorism measures. Inclusive to • Report actions taken to the approval Number (2503–0030) and this determination is an assessment that cognizant Coast Guard Captain of the should be sent to: HUD Desk Officer, the Democratic Republic of Sao Tome Port prior to arrival into U.S. waters. Office of Management and Budget, New and Principe presents significant risk of In addition, based on the findings of Executive Office Building, Washington, introducing instruments of terror into a Coast Guard boarding or examination, DC 20503; fax: 202–395–5806. international maritime commerce. The vessels may be required to ensure that FOR FURTHER INFORMATION CONTACT: Coast Guard notified the Department of each access point to the ship is guarded Leroy McKinney, Jr., Reports
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Management Officer, QDAM, concerning the proposed collection of This notice also lists the following Department of Housing and Urban information to: (1) Evaluate whether the information: Development, 451 Seventh Street, SW., proposed collection of information is Title of Proposal: Ginnie Mae Washington, DC 20410; e-mail Leroy necessary for the proper performance of Multiclass Securities Program McKinney, Jr. at the functions of the agency, including Documents. [email protected] or telephone whether the information will have OMB Approval Number: 2503–0030. practical utility; (2) Evaluate the (202) 402–5564. This is not a toll-free Form Numbers: None. number. Copies of available documents accuracy of the agency’s estimate of the Description of the Need for the submitted to OMB may be obtained burden of the proposed collection of Information and its Proposed Use: This from Mr. McKinney. information; (3) Enhance the quality, utility, and clarity of the information to collection of information is required in SUPPLEMENTARY INFORMATION: This be collected; and (4) Minimize the connection with the Multiclass notice informs the public that the burden of the collection of information Securities Program. The intent of the Department of Housing and Urban on those who are to respond; including Multiclass Securities program is to Development has submitted to OMB a through the use of appropriate increase liquidity in the secondary request for approval of the Information automated collection techniques or mortgage market and to attract new collection described below. This notice other forms of information technology, sources of capital for federally insured is soliciting comments from members of e.g., permitting electronic submission of or guaranteed residential loans. the public and affecting agencies responses. Frequency of Submission: Annually.
Number of Annual × Hours per Burden respondents responses response = hours
Reporting Burden ...... 15 8 141.1 16,933
Total Estimated Burden Hours: Control Number and should be sent to: Description of the need for the 16,933. Robert Duncan, Department of Housing Information and proposed use: The Status: Reinstatement, without Urban and Development, 451 7th Street, Youthbuild Program was authorized change, of previously approved SW., Room 7149, Washington, DC under section 164 of the Housing and collection. 20410. community development Act of 1992 Authority: Section 3507 of the Paperwork (42 U.S.C. chapter 8011). Funded FOR FURTHER INFORMATION CONTACT: programs provide disadvantaged youth, Reduction Act of 1995, 44 U.S.C. 35, as Nikki Bowser at telephone number 202– amended. predominately high school drop outs 402–4395 (this is not a toll-free with educational opportunities and job Dated: April 6, 2010. number). skills training. The program was Leroy McKinney, Jr., SUPPLEMENTARY INFORMATION: The transferred to the U.S. Department of Departmental Reports Management Officer, Labor effective with grants awarded Office of the Chief Information Officer. Department will submit the proposed information collection to OMB for from Fiscal Year 2007 and thereafter. [FR Doc. 2010–8319 Filed 4–12–10; 8:45 am] review, as required by the Paperwork This information collection effort is for BILLING CODE 4210–67–P Reduction Act of 1995 (44 U.S.C. grants awarded with FY 2006 and chapter 35 as amended). earlier grants by the U.S. Department of This Notice is soliciting comments HUD. Information is collected from DEPARTMENT OF HOUSING AND grant recipients to determine the use of URBAN DEVELOPMENT from members of the public and affected agencies concerning the proposed funds and program results achieved. [Docket No. FR–5377–N–01] collection of information to: (1) Evaluate Information is also collected to allow whether the proposed collection of the timely close-out of completed Notice of Proposed Information information is necessary for the proper grants. Collection: Youthbuild Program performance of the functions of the Agency form numbers, if applicable: HUD Forms 40211, Youthbuild Program AGENCY: Office of the Assistant agency, including whether the Reports and HUD Form 40202, LOCCS Secretary for Community Planning and information will have practical utility; Request Voucher for Grant Payment. Development, HUD. (2) Evaluate the accuracy of the agency’s SF1199A, Direct Deposit Sign-Up form, ACTION: Notice. estimate of the burden of the proposed collection of information; (3) Enhance and HUD 27054, HUD LOCCS Voice SUMMARY: The proposed information the quality, utility, and clarity of the Response System Access Authorization collection requirement described below information to be collected; and (4) form. Members of affected public: Public or will be submitted to the Office of Minimize the burden of the collection of private nonprofit agencies, including Management and Budget (OMB) for information on those who are to state or local housing agencies or review, as required by the Paperwork respond; including through the use of authorities, State or units of local Reduction Act. The Department is appropriate automated collection government, or any entity eligible to soliciting public comments on the techniques or other forms of information provide education and employment subject proposal. technology, e.g., permitting electronic training under other Federal DATES: submission of responses. Comments Due Date: June 14, employment training programs. 2010. This Notice also lists the following Estimation of the total numbers of ADDRESSES: Interested persons are information: hours needed to prepare the invited to submit comments regarding Title of Proposal: Youthbuild Information collection including this proposal. Comments should refer to Program. number of respondents, frequency of the proposal by name and/or OMB OMB Control Number: 2506–0142. response, and hours of response: The
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HUD Form series 40211 is a semi- Omnibus Appropriations Act, 2009 public and the site is accessible to annual report and final report. The (Pub. L. 111–8) makes available individuals with disabilities. Youthbuild grant life cycle is approximately $40 million for DATES: The meetings will be held on approximately 30 months with incremental Section 8 Housing Choice April 28–30, 2010. approximately 86 currently active Vouchers (HCV) for non-elderly ADDRESSES: These meetings will be held grantees and which number will disabled families served by entities at: Marriott Tulsa Southern Hills, 1902 decrease as those grantees complete and (which the NOFA limits to public East 71st Street, Tulsa, OK 74136. report on their program. Fiscal Year housing agencies) with demonstrated FOR FURTHER INFORMATION CONTACT: 2006 was the last year that Youthbuild experience and resources for supportive Office of Manufactured Housing grants were funded by the Department services). This money should fund Programs, Department of Housing and so that there will be a declining number approximately 5,300 HCVs. The notice Urban Development, 451 Seventh Street, of grantees reporting during the three- providing information regarding the SW., Room 9164, Washington, DC year cycle covered by this information application process, funding criteria and 20410–8000; telephone 202–708–6409 request. Of the forms making up the eligibility requirements is available on (this is not a toll-free number). Persons series 40211, one group of forms are the Grants.gov Web site at https:// with hearing or speech challenges may submitted on a semi-annual basis and apply07.grants.gov/apply/ access this number through TTY by _ _ the other group is only submitted as the forms apps idx.html. A link to calling the toll-free Federal Information final submission at grant closeout. The Grants.gov is also available on the HUD Relay Service at 800–877–8339. form HUD 40202, LOCCS Request Web site at http://www.hud.gov/offices/ SUPPLEMENTARY INFORMATION: Notice of Voucher for Grant Payment is submitted adm/grants/fundsavail.cfm. The this meeting is provided in accordance when the grantee requests a grant Catalogue of Federal Domestic with section 10(a)(2) of the Federal payment. The SF1199A is submitted Assistance (CFDA) numbers for Section Advisory Committee Act (5 U.S.C. one-time by new grantees as is the form 8 Housing Choice Vouchers is 14.871. App.2) and 41 CFR 102–3.150. The HUD 27004, unless an organization Applications must be submitted Manufactured Housing Consensus changes banking information. The total electronically through Grants.gov. Committee was established under estimate of burden hours is 7,570 hours. FOR FURTHER INFORMATION CONTACT: section 604(a)(3) of the National Status of the proposed information Questions regarding specific HCV Manufactured Housing Construction collection: This notice precedes a program requirements should be and Safety Standards Act of 1974, 42 continuation of the existing burden hour directed to Phyllis Smelkinson by U.S.C. 5403(a)(3), providing: request. It is a proposed reduction from phone at 202–402–4138 or by e-mail at (A) Purpose—There is established a the prior approved request of 12,000. [email protected] or the committee to be known as the This decrease is due primarily to the NOFA Information Center at 800–HUD– ‘‘consensus committee’’, which shall, in end of the administration of new grants 8929 (toll-free). Persons with hearing or accordance with this title— at the Department beginning in Federal speech impairments may access these (i) Provide periodic recommendations Fiscal Year 2007. numbers via TTY by calling the Federal to the Secretary to adopt, revise, and Authority: The Paperwork Reduction Act Information Relay Service at 800–877– interpret the Federal manufactured of 1995, 44 U.S.C. chapter 35, as amended. 8339. The NOFA Information Center is housing construction and safety Dated: April 2, 2010. open between the hours of 10 a.m. and standards in accordance with this Mercedes Ma´rquez, 6:30 p.m. eastern time, Monday through subsection; Friday, except federal holidays. (ii) Provide periodic Assistant Secretary for Community Planning and Development. Dated: April 1, 2010. recommendations to the Secretary to adopt, revise, and interpret the [FR Doc. 2010–8318 Filed 4–12–10; 8:45 am] Deborah Hernandez, procedural and enforcement regulations, BILLING CODE 4210–67–P General Deputy Assistant Secretary for Public and Indian Housing. including regulations specifying the permissible scope and conduct of [FR Doc. 2010–8430 Filed 4–12–10; 8:45 am] monitoring in accordance with DEPARTMENT OF HOUSING AND BILLING CODE 4210–67–P URBAN DEVELOPMENT subsection (b); (iii) Be organized and carry out its [Docket No. FR–5332–N–02] business in a manner that guarantees a DEPARTMENT OF HOUSING AND fair opportunity for the expression and URBAN DEVELOPMENT Notice of Availability: Notice of consideration of various positions and Funding Availability (NOFA) for HUD’s for public participation; and Fiscal Year (FY) 2009 Rental [Docket No. FR–5406–N–02] (iv) Be deemed to be an advisory Assistance for Non-Elderly Persons committee not composed of Federal With Disabilities Notice of a Federal Advisory employees. Committee Meeting; Manufactured AGENCY: Office of the Assistant Housing Consensus Committee Tentative Agenda Secretary for Public and Indian Convening of Meeting by HUD. AGENCY: Office of the Assistant Housing, HUD. Call to Order. ACTION: Notice. Secretary for Housing-Federal Housing Roll Call/Establish Quorum. Commissioner, HUD. Welcome/Introductions/New SUMMARY: Through this notice, HUD ACTION: Notice of a federal advisory Members. announces the availability on its committee meeting. Announcements/Administrative website of the application information, Report from HUD officials. submission deadlines, funding criteria, SUMMARY: This notice sets forth the Call for Committee Reports and other requirements for the Fiscal schedule and proposed agenda of a (information only). Year 2009 Rental Assistance for Non- scheduled meeting of the Manufactured Public Comments. Elderly Persons with Disabilities Notice Housing Consensus Committee (the MHCC recommendations to the of Funding Availability (NOFA). The Committee). The meeting is open to the Secretary to adopt, revise, and interpret
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the Federal manufactured housing lease holder, Simplot in this case, Scoping Procedure: The scoping construction and safety standards. exclusive rights to mine and otherwise procedure to be used for this EIS will MHCC recommendations to the dispose of the Federally owned involve: Notification in the Federal Secretary to adopt, revise, and interpret phosphate deposit at the site. Through Register; a mailing to interested and the procedural and enforcement development of this EIS, the BLM will potentially affected individuals, groups, regulations. analyze environmental impacts of the Federal, State, and local government Dated: April 6, 2010. proposed mining operations, land entities requesting comments, issues exchanges and reasonable alternatives. and concerns; news releases or legal David H. Stevens, Appropriate mitigation measures also notices; and public scoping meetings. Assistant Secretary for Housing—Federal will be formulated. Please note that public comments and Housing Commissioner. DATES: To ensure comments will be information submitted, including [FR Doc. 2010–8425 Filed 4–12–10; 8:45 am] considered, the BLM must receive names, street addresses, and e-mail BILLING CODE 4210–67–P written comments on the scope of the addresses of respondents, will be analysis described in this Notice by May available for public review and 13, 2010. The BLM will announce future disclosure at the address listed below DEPARTMENT OF THE INTERIOR meetings or hearings and any other during regular business hours (8 a.m. to public involvement activities at least 15 4 p.m.), Monday through Friday, except Bureau of Land Management days in advance through public notices, holidays. Before including your address, phone [LLIDI02000. media news releases, and/or mailings. number, e-mail address, or other L71220000.EO0000.LVTFD0975750] ADDRESSES: Send written comments to: Dairy Syncline Mine EIS, Bureau of personal identifying information in your DEPARTMENT OF AGRICULTURE Land Management, Pocatello Field comment, you should be aware that Office, 4350 Cliffs Drive, Pocatello, your entire comment—including your personal identifying information—may Forest Service Idaho 83204. E-mail: be made publicly available at any time. [email protected]. Notice of Intent To Prepare an While you can ask us in your comment Environmental Impact Statement for FOR FURTHER INFORMATION CONTACT: to withhold your personal identifying the Proposed Dairy Syncline Mine and Barry Myers, Bureau of Land information from public review, we Reclamation Plan, Caribou County, ID Management, Pocatello Field Office, cannot guarantee that we will be able to 4350 Cliffs Drive, Pocatello, Idaho do so. AGENCIES: Bureau of Land Management, 83204, phone (208) 478–6369. Background: Simplot has operated the Interior; U.S. Forest Service, Information is also available at: http:// existing Smoky Canyon Mine since Agriculture. www.blm.gov/id/st/en/fo/pocatello/ 1983. Simplot has indicated that they ACTION: Notice of Intent. planning/dairy_syncline_mine.html. will eventually complete mining of SUPPLEMENTARY INFORMATION: currently permitted reserves, SUMMARY: Notice is hereby given that Agency Decisions: The BLM Idaho necessitating the proposed expansion to the Department of the Interior, Bureau State Director or delegated official will the Dairy Syncline phosphate leases. of Land Management (BLM), Pocatello make a decision regarding approval of Because of the significant construction Field Office and the U.S. Department of the proposed mine and reclamation time associated with the infrastructure Agriculture, Forest Service (FS), plan, proposed land sale with needed for the proposed mine (i.e. new Caribou-Targhee National Forest, will mitigation, proposed lease modification mill and tailings impoundment), this jointly prepare an Environmental and/or fringe acreage lease approvals proposal is being analyzed in advance of Impact Statement (EIS) to determine and (enlargement of leased areas), depleting the currently permitted analyze the effects of a proposed appropriate land use authorizations on reserves at the Smoky Canyon Mine. phosphate mine and reclamation plan leased lands, and an amendment to the The Dairy Syncline Phosphate Lease on people and the environment. The current Resource Management Plan Area represents a significant phosphate BLM will serve as the lead agency. Plans (RMP) for the Pocatello Resource Area. ore deposit that is economically feasible have been developed and submitted for Decisions will be based on the EIS and for prolonged development. In total, agency review of proposed open pit any recommendations the FS may have approximately 2,133 acres are proposed mining operations at the Dairy Syncline regarding surface management of leased for disturbance. The proposed project Phosphate Lease Area in Caribou National Forest System lands. The would include an open pit phosphate County, Idaho by the J.R. Simplot Caribou-Targhee National Forest mine, a new milling facility, installation Company (Simplot). The Dairy Syncline Supervisor makes: of underground phosphate slurry, Phosphate Lease Area is located about 1. Recommendations to the BLM tailings and water lines, a new tailings 12 miles east of Soda Springs, Idaho. concerning surface management and impoundment, a new power line, and a The proposed new mining operations mitigation on leased lands within the land sale with mitigation (BLM) and a at the Dairy Syncline Phosphate Lease Caribou-Targhee National Forest; and land exchange (FS) of Federal lands for Area lie within the Caribou-Targhee 2. Decisions on mine related activities private holdings. The proposed National Forest on lands where the which occur off-lease. mitigated land sale would require an surface estate is administered by the FS, Special use authorizations from the amendment to the 1988 Pocatello RMP. and the Federal mineral estate is FS will be necessary for all off-lease The proposal also includes six lease administered by the BLM. In 2000, the support structures for the mine. A FS modification or fringe acreage lease BLM completed an EIS to support a decision regarding the proposed areas that are contiguous with the decision to lease. The BLM issued exchange of FS land for private holdings existing leases that would allow for Federal mineral lease I–28115 to will be issued by the Regional Director optimum recovery of the existing Simplot by competitive bid in 2000. The of Lands. The Army Corps of Engineers phosphate ore body. Disturbance on Federal mineral lease I–0258 was may also make decisions related to these proposed lease modification and/ transferred from P4 Production LLC to permits under section 404 of the Clean or fringe acreage lease areas represent Simplot in 2009. These leases grant the Water Act. approximately 347 acres of the total
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proposed disturbance. The development configured essentially the same as the route represents approximately 14 acres of the ore deposits would result in six operating Smoky Canyon Mill. In of off-lease disturbance. pits representing approximately 1,389 addition, a shop would be required for The tailings pipeline would transport acres of pit disturbance. Proposed repairing and maintaining the mining tailings from the mill/shop complex to sequencing for the Dairy Syncline mine equipment. The shop area would be the proposed tailings pond. The plan would begin with mining a portion included in the mill/shop complex. pipeline would be approximately 5 of the west pit along with the north pit. An ore stockpile (of 750,000 to miles long. The proposed pipeline route Initial overburden from the west pit 1,000,000 tons) is proposed for would originate at the mill/shop would be placed directly to the east of supplying ore to the mill. The location complex and be placed in the same the initial disturbance in an external of the stock pile would be on-lease near trench as the ore concentrate pipeline. overburden storage facility on-lease. the mill building at the mill/shop At a location near the tailings pond, the Mining would continue within the complex. The stockpile would be tailings line would go east to the north pit, followed by the northeast pit, approximately 13 acres in size. The southern end of the pond. A number of the east pit, south pit, and finally the simple milling process would consist of pipeline branches would be installed southeast pit. There would be some crushing and grinding the phosphate ore around the pond to ensure even concurrent mining of pits to maintain a to a fine powder. Associated clay would distribution of tailings in the pond. consistent grade of ore available for be physically removed from the finely The water return line would transport milling purposes as well as maintaining ground ore and would then be mixed water from the tailings pond back to the an economic mine pit stripping ratio. with water and pumped into another mill and would be approximately 5 In their mine and reclamation plan, new underground pipeline to the miles long. As noted above, this line Simplot has proposed management tailings impoundment. The product and would be in the same trench as the practices to reduce environmental tailings pipelines would be installed tailings and concentrate pipeline. Off-lease facilities would include the impacts. As mining progresses, next to each other. To facilitate mobile main office/security building, tailings reclamation would begin concurrently. equipment operation and personnel, pond, and portions of access roads, Simplot’s plan emphasizes total backfill some small support facilities at the pipelines, a power line, and storm water of mine pits and limiting the amount of active mining sites would be required. overburden placed external to the pits. control features. The proposed power Typically, these facilities would consist line would run northeast to connect In addition, Simplot’s mine plan of equipment ready lines (cold climate contains provisions aimed at limiting with an existing power line and existing hot starts), electrical power, fuel and corridor in Upper Dry Valley. It is the amount of time seleniferous grease storage within secondary overburden is exposed to the elements. estimated that off-lease activities would containment, communication, and total about 337 acres of disturbance, To reduce the potential for contaminant safety structures. The location of these release to water or uptake into which would include the assumed facilities would vary during the mining reclamation vegetation, Simplot is disturbance for the power line. process. proposing to cover over all seleniferous Truck haulage would transport both overburden with non-seleniferous A new tailings pond is proposed for ore to the proposed on-lease ore material consisting of approximately 2 the mining operation. The proposed stockpile and overburden to its feet of chert, overlain by 2 feet of location would be approximately 4.4 permanent disposal site. Several Dinwoody and/or Salt Lake Formation, miles northwest of the Dairy Syncline external pit roads would be required and finally a topsoil layer estimated at leases. A land sale with mitigation throughout the life of the mine for both 6 to 12 inches, contingent upon the (BLM) and a land exchange (FS) of overburden and ore transportation. All baseline soil resources study. Federal lands for private holdings are of these roads are located on-lease and Associated new facilities that are proposed for the proposed tailings pond would be constructed of chert or proposed include: Main office/security area. An earthen dam structure on the limestone with cut side ditches, culverts building, mill and shop complex, north end of the pond would be as appropriate, and fill side berms support facilities, ore stockpile, tailings constructed resulting in a design where necessary for safety. Access to the pond, groundwater supply well(s), and capacity of 20 million cubic yards of mine site for employees, equipment, pipelines. The proposed location of the material. The proposed configuration and supplies is proposed through main office/security building is an area would be large enough to hold all of the Georgetown Canyon and along Slug southeast of the mouth of Wilde Canyon tailings expected to be generated during Creek via the existing FS road. Upgrades and west of the Slug Creek Road. This the life of the mine. to this road will be necessary for safe location is on National Forest System Three pipelines are proposed for the passage of two-way traffic. lands off-lease and would require a project; one each for delivery of tailings, Potential impacts to surface resources Special Use Authorization from the FS. ore concentrate, and a water return line. and water quality include erosion, Approximately 5 acres would be The pipelines would be buried in one sediment, and dissolved contaminants disturbed for the office and parking earth covered trench. The ore such as selenium. Simplot has proposed areas. concentrate pipeline would transport to implement practices designed to The proposed location for the mill/ ore in slurry form from the proposed reduce, eliminate, or mitigate these shop complex is in the mining area mill site to the existing pipeline. The impacts. Suitable topsoil would be between the north and south pits. The buried 8-inch diameter steel pipe would salvaged from disturbed areas for use in complex would disturb about 20 acres. be about 8 miles long. The proposed reclamation. Reclamation of mining The mill would be required to process pipeline route would originate at the disturbances would include: removal of the ore into concentrated slurry that mill/shop complex, follow the access facilities and equipment, backfilling would be pumped in a proposed 8-mile road on the north side of Wilde Canyon, pits, regrading slopes, restoring underground pipeline to a currently and then follow the western side of the drainages, spreading topsoil, stabilizing existing pipeline that connects to Slug Creek Valley where it would tie surfaces, revegetation, testing and Simplot’s Don Fertilizer Plant just into the existing ore concentrate treatment for remaining hydrocarbon outside of Pocatello, Idaho. The pipeline from Smoky Canyon to the contaminants, and environmental proposed mill is assumed to be Conda Pump Station. This pipeline monitoring.
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Issues initially identified for the DEPARTMENT OF THE INTERIOR Federal coal resources are located in proposed mining of the Dairy Syncline Emery and Sevier Counties, Utah: Bureau of Land Management phosphate leases include potential T. 23 S., R. 5 E., SLM, Utah effects on: Groundwater and surface [LLUT9200000–10–L13200000–EL000, UTU– Sec. 1, all; water quantity and quality; wildlife and 87041] Sec. 11, all; their habitats; livestock grazing; Sec. 12, all; wetlands and riparian habitat; Notice of Invitation to Participate; Sec. 13, all; recreation; socio-economics; Native Exploration for Coal in Utah License Sec. 14, all; T. 23 S., R. 6 E., SLM, Utah American rights, treaties, and land uses; Application UTU–87041 Sec. 6, lots 6 and 7, S1⁄2NE1⁄4, E1⁄2SW1⁄4, inventoried roadless areas; visual 1 AGENCY: Bureau of Land Management, SE ⁄4; resources; and cumulative effects. Interior. Sec. 7, lots 1–4, NE1⁄4, E1⁄2W1⁄2; The EIS will analyze the Proposed ACTION: Notice. These lands contain 4,082.33 acres, more Action and the No Action Alternative. or less. Other alternatives may consider: SUMMARY: All interested parties are The above-described land is within Alternative access road(s); alternative hereby invited to participate with the Wasatch Plateau Known Coal tailings pond locations; alternatives to Reserve Coal Properties Company on a Leasing Area. The proposed exploration the land sale with mitigation and land pro rata cost-sharing basis, in a program program will be conducted pursuant to exchange; use of conveyors to transport for the exploration of coal deposits an exploration plan to be approved by ore to the existing mill; revising the owned by the United States of America the BLM. The plan may be modified to layout or sequencing of the proposed in lands located in Emery and Sevier accommodate the legitimate exploration mining facilities; different methods for Counties, Utah. needs of persons seeking to participate. reducing potential impacts from DATES: Any party electing to participate The foregoing is published in the overburden handling; and other in this exploration program must send Federal Register pursuant to 43 CFR alternatives that could provide written notice to Reserve Coal 3410.2–1(c)(1). mitigation for potential impacts. Properties Company and the Bureau of Approved: The tentative EIS project schedule is Land Management (BLM) as provided in Selma Sierra the ADDRESSES section below by May 13, as follows: State Director. 2010 or 10 days after the last [FR Doc. 2010–8392 Filed 4–12–10; 8:45 am] • Begin Public Scoping Period and publication of this notice in the Meetings: Winter/Spring 2010. Richfield Reaper newspaper, whichever BILLING CODE 4310–DQ–P • Estimated date for Draft EIS and is later. This notice will be published associated comment period: Fall 2011. once a week for two consecutive weeks DEPARTMENT OF THE INTERIOR in the Richfield Reaper, Richfield, Utah. • Final EIS Publication: June 2013. ADDRESSES: The exploration plan, as Bureau of Land Management • Record of Decision: August 2013. submitted by Reserve Coal Properties [LLCOS05400–L17110000 PA000 At least four ‘‘open-house’’ style Company, is available for review in the LXSIGGCA0000] public scoping meetings will be held public room of the BLM’s Utah State which will include displays explaining Office, 440 West 200 South, Suite 500, Notice of Final Supplementary Rules the project and providing a forum for Salt Lake City, Utah during normal for Public Lands in Colorado: commenting on the project. Meetings business hours (9 a.m. to 4 p.m.), Gunnison Gorge National are currently planned for Pocatello, Fort Monday through Friday. Any party Conservation Area (GGNCA) and Hall, Georgetown, and Soda Springs, electing to participate in this Adjacent Public Lands Administered Idaho. The dates, times, and locations of exploration program shall notify the by the Bureau of Land Management the public scoping meetings will be BLM State Director, in writing, at the Uncompahgre Field Office, Montrose announced in mailings and public Utah State Office, P.O. Box 45155, Salt and Delta Counties, CO notices issued by the BLM (see contact Lake City, Utah 84145 and Reserve Coal AGENCY: information above). The BLM and FS Properties Company, Attn: Tim Bureau of Land Management, are seeking information and written Kirschbaum, P.O. Box 639, Sesser, Interior. comments from Federal, State, and local Illinois 62884. The written notice must ACTION: Final supplementary rules for agencies as well as Tribal entities, include a justification for participation the GGNCA and adjacent public lands individuals and organizations interested and any recommended changes in the in southwestern Colorado. in, or affected by, the Proposed Action exploration plan with specific reasons SUMMARY: This notice contains final or Alternatives. To assist the BLM and for such changes. supplementary rules for the GGNCA and FS in identifying issues and concerns FOR FURTHER INFORMATION CONTACT: Bill adjacent public lands included in the related to the Proposed Action or Buge at (801) 539–4086. 2004 GGNCA Resource Management Alternatives, comments for scoping, and SUPPLEMENTARY INFORMATION: The Plan (RMP) and managed by the GGNCA later for the Draft EIS, should be as authority for the notice is section 2(b) of and Uncompahgre Field Offices in specific as possible. the Mineral Leasing Act of 1920, as Montrose and Delta Counties, Colorado. Joe Kraayenbrink, amended by section 4 of the Federal The rules implement RMP decisions Coal Leasing Amendments Act of 1976 that relate to the use of the lands, District Manager, Idaho Falls District, Bureau and the regulations adopted as 43 CFR conduct, health and safety of public of Land Management. part 3410. The purpose of the land users, and protection of natural Brent Larson, exploration program is to gain resources. The rules address motorized Forest Supervisor, Caribou-Targhee National additional geologic knowledge of the and non-motorized uses, safety, Forest. coal underlying the exploration area for firearms, hunting and target shooting, [FR Doc. 2010–8391 Filed 4–12–10; 8:45 am] the purpose of assessing the reserves pets and pack stock use, camping, waste BILLING CODE 4310–GG–P contained in a potential lease. The disposal, group size limits, permit
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requirements, and length of stay. These may not target shoot within the National compliance with posted regulations. If supplementary rules will be added to Conservation Area (NCA), even while monitoring of these lands indicates the current rules in effect for the they are out legally hunting in the area. resource or other problems are occurring GGNCA, Gunnison Gorge Wilderness, BLM Response: The BLM agrees with as a result of target shooting and/or and adjacent public lands. The this additional clarification as this was other multiple uses, the areas may be supplementary rules will be enforced by the intent of the original rule. Rule 3(a) closed. Bureau of Land Management (BLM) law has been revised to reflect the The BLM believes that the rules that enforcement rangers. clarification. implement RMP management decisions DATES: These rules are effective May 13, (3) The third comment pertained to related to regulating and monitoring 2010. target shooting on the 32,937 acres of dispersed multiple uses, including non-NCA public lands managed under ADDRESSES: These rules are available at target shooting, on non-NCA lands are the GGNCA management plan. Rule 3(b) the BLM Uncompahgre Field Office, sufficient to provide for the safety of states that: ‘‘On public lands adjacent to visitors and protection of these public 2465 S. Townsend Avenue, Montrose, the GGNCA, you must not target shoot Colorado 81401. lands. The BLM contends that Rule 3(b) except in areas closed to that use by a was developed to allow for less FOR FURTHER INFORMATION CONTACT: ’’ BLM sign or map. The commenter restrictive, dispersed uses on non-NCA Karen Tucker, GGNCA (970) 240–5300, requested the rule be changed to state: _ lands, and is consistent with RMP e-mail: karen [email protected] or Ted ‘‘On public lands adjacent to the Moe, BLM Law Enforcement Ranger, decisions for these public lands as GGNCA, you must not target shoot stated, and does not need additional (970) 240–5341, e-mail: except in areas designated as open to _ clarification. ted [email protected]. such use by a BLM sign or map.’’ The Other than the changes noted, and SUPPLEMENTARY INFORMATION: commenter noted that the change was needed to ensure visitor safety and be with the exception of minor non- I. Background consistent with other GGNCA rules that substantive grammatical and formatting These final supplementary rules disallow uses such as camping, wood changes, the final rules remain as apply to the GGNCA, approximately collection, campfires, and motorized proposed. 62,844 acres of public lands that include travel, except in areas designated open III. Discussion of Supplementary Rules the 17,784-acre Gunnison Gorge to such uses by BLM sign or map. Wilderness, and 32,937 acres of adjacent BLM Response: RMP decisions that These final supplementary rules public lands managed under the close the GGNCA to target shooting and apply to a total of 95,781 acres of public GGNCA management plan. The GGNCA disallow uses such as camping, wood lands managed by the BLM within the was established by Public Law 106–76 collection, motorized travel, and GGNCA RMP planning area. The area on October 21, 1999. campfires except in areas designated as includes 62,844 acres of NCA lands and The GGNCA is located 10 miles north open to such uses by BLM sign or map, 32,937 acres of non-NCA lands within of Montrose, Colorado, bordered by the were determined necessary to: Protect Montrose and Delta Counties, Colorado, Black Canyon of the Gunnison National the NCA’s nationally significant scenic, in the following townships: Park to the south. The supplementary geologic, recreation, wilderness, and Colorado, Sixth Principal Meridian rules will help the BLM achieve other natural values; ensure and management objectives and implement enhance the safety of the increasing T. 14 S., R. 95 W. through 93 W. decisions in the GGNCA RMP approved number of NCA visitors which use the T. 15 S., R. 95 W. through 93 W. on November 12, 2004. These many recreation sites and trails New Mexico Principal Meridian supplementary rules will also allow the constructed throughout the NCA; and T. 51 N., R. 10 W. through 7 W. BLM to increase law enforcement efforts protect the public’s investment in those T. 50 N., R. 10 W. through 6 W. that will help mitigate damage to high use recreation sites and other BLM T. 49 N., R 9 W. through 8 W. natural resources and provide for public infrastructure. These rules are consistent with the health and safe public recreation. However, the RMP allows for the BLM’s discretion to authorize dispersed Record of Decision of the 2004 GGNCA II. Discussion of Public Comments target shooting, and other multiple uses RMP. In preparing the RMP, the BLM The Uncompahgre Field Office such as camping, firewood collecting, sought public review of four alternatives proposed these supplementary rules in etc., on non-NCA public lands which, and then approved adaptive the Federal Register on September 9, for the most part, do not attract high management, its preferred alternative. 2009. The BLM received two comment visitation due to: Lack of outstanding Adaptive management allows for letters containing three substantive and/or nationally significant values; flexibility in management actions based comments. The following is a summary lack of developed recreation facilities on the results of resource and visitor of the comments: and trails; and less obvious access. monitoring. (1) The first comment addressed the The RMP decisions for non-NCA The RMP includes specific need to clarify that the rule for single lands provide regulation of dispersed management actions that restrict certain track routes should specify only two- multiple uses at levels that are less activities and define allowable uses. The wheeled vehicles are permitted on these restrictive than those imposed on uses final supplementary rules implement types of routes. within the NCA. These supplementary these management actions within the BLM Response: The BLM agrees with rules were developed with this GGNCA and adjacent public lands. this additional clarification as this was difference in mind. This difference in Many of the supplementary rules apply the intent of the original rule. Rule 2(c) the level of regulation allows the public to the entire area but some apply only has been revised to reflect the to make choices regarding the locations to specific areas within the GGNCA. The clarification. for, and the type of, recreation uses they rules are written to allow for the (2) The second comment addressed want to pursue. management flexibility that is available the need to clarify the rule for The RMP states that patrols by law under the principles of adaptive discharging firearms within the GGNCA enforcement will be conducted on the management. These rules will be posted to make it clear that licensed hunters non-NCA lands to ensure user within the affected areas.
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IV. Procedural Matters impact on entities of any size, but Therefore, in accordance with Executive provide for the protection of persons, Order 13132, the BLM has determined Executive Order 12866, Regulatory property, and resources on specific that these supplementary rules do not Planning and Review public lands. Therefore, the BLM has have sufficient Federalism implications These supplementary rules are not determined under the RFA that the to warrant preparation of a Federalism significant regulatory actions and not supplementary rules would not have a Assessment. subject to review by the Office of significant economic impact on a Executive Order 12988, Civil Justice Management and Budget under substantial number of small entities. Executive Order 12866. These Reform Small Business Regulatory Enforcement supplementary rules will not have an Under Executive Order 12988, the Fairness Act annual effect of $100 million or more on Office of the Solicitor has determined the economy. They will not adversely These supplementary rules are not that these rules will not unduly burden affect in a material way the economy, ‘‘major’’ as defined under 5 U.S.C. the judicial system and that they meet productivity, competition, jobs, the 804(2). The supplementary rules merely the requirements of sections 3(a) and environment, public health or safety, or establish rules of conduct for public use 3(b)(2) of the Order. State, local, or tribal governments or of a limited area of public lands and do communities. These supplementary not affect commercial or business Executive Order 13175, Consultation rules will not create a serious activities of any kind. and Coordination with Indian Tribal inconsistency or otherwise interfere Governments Unfunded Mandates Reform Act with an action taken or planned by In accordance with Executive Order another agency. The supplementary These supplementary rules do not 13175, the BLM has found that these rules do not materially alter the impose an unfunded mandate on State, supplementary rules do not include budgetary effects of entitlements, grants, local, or tribal governments in the policies that have tribal implications. user fees, or loan programs or the rights aggregate, or the private sector of more None of the lands included in these or obligations of their recipients, nor do than $100 million per year; nor do they rules are Indian lands or affect Indian they raise novel legal or policy issues. have a significant or unique effect on rights. These supplementary rules are merely small governments. The rules have no rules of conduct for public use of a effect on governmental or tribal entities Paperwork Reduction Act limited area of public lands. and would impose no requirements on These supplementary rules do not any of these entities. The supplementary National Environmental Policy Act contain information collection rules merely establish rules of conduct requirements that the Office of The final supplementary rules put for public use of a limited selection of Management and Budget must approve forth in this notice implement key land public lands and do not affect tribal, under the Paperwork Reduction Act of use planning decisions in the Approved commercial, or business activities of any 1995, 44 U.S.C. 3501 et seq. Any GGNCA RMP and Record of Decision kind. Therefore, the BLM is not required information collection requirements signed by the BLM State Director of to prepare a statement containing the contained in these rules are exempt Colorado in November 2004. The four- information required by the Unfunded from the provisions of the Paperwork year RMP process included extensive Mandates Reform Act (2 U.S.C. 1531 et Reduction Act of 1995, 44 U.S.C. public input and development of a Draft seq.). and Proposed RMP and Final 3518(c)(1). Federal criminal Environmental Impact Statement (EIS) Executive Order 12630, Governmental investigations or prosecutions may for the GGNCA and Gunnison Gorge Actions and Interference With result from these rules, and the Wilderness, which was completed in Constitutionally Protected Property collection of information for these January 2004. During the National Rights (Takings) purposes is exempt from the Paperwork Environmental Policy Act process, each These supplementary rules do not Reduction Act. alternative was fully analyzed, have significant takings implications, Supplementary Rules for the Gunnison including the types of decisions set nor are they capable of interfering with Gorge National Conservation Area forth in these supplementary rules. The Constitutionally protected property (GGNCA) and Adjacent Public Lands rationale for the decisions made can be rights. The supplementary rules merely found in Chapter 5, Environmental establish rules of conduct for public use These supplementary rules apply, Consequences. The BLM has placed the of a limited area of public lands and do except as specifically exempted, to Final EIS, Approved RMP, and Record not affect anyone’s property rights. activities within the GGNCA and of Decision on file in the BLM Therefore, the Department of the adjacent public lands administered by Administrative Record at the address Interior has determined that these rules the Bureau of Land Management (BLM) specified in the ADDRESSES section. will not cause a ‘‘taking’’ of private near Montrose, Colorado. These property or require preparation of a supplementary rules are in effect on a Regulatory Flexibility Act takings assessment under this Executive year-round basis and will remain in Congress enacted the Regulatory Order. effect until modified by the authorized Flexibility Act (RFA) of 1980, as officer. Executive Order 13132, Federalism amended, 5 U.S.C. 601–612, to ensure 1. General Travel Management that government regulations do not These supplementary rules will not unnecessarily or disproportionately have a substantial direct effect on the a. You must not enter an area burden small entities. The RFA requires States, the relationship between the designated as closed by a BLM sign or a regulatory flexibility analysis if a rule national government and the States, nor map. would have a significant economic the distribution of power and b. You must not use roads and/or impact, either detrimental or beneficial, responsibilities among the various trails by motorized or mechanized on a substantial number of small levels of government. These vehicle or equestrian or pedestrian entities. These final supplementary supplementary rules do not come into travel except where designated as open rules do not have a significant economic conflict with any state law or regulation. to such use by a BLM sign or map.
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c. You must not park in areas not 4. Pets and Pack Stock b. You must not start or maintain a designated for parking by a BLM sign or a. You must not bring any animal into fire in sites or areas not designated as map. the GGNCA that is not controlled by open for such use by a BLM sign or d. You must not launch or operate any visual, audible, or physical means. map. motorized watercraft within the GGNCA b. You must not leave any pets and/ c. Where allowed, any fire must be or adjacent public lands. or pack stock unattended. fully contained in a metal fire grate, fire e. You must not operate any vehicle c. You must remove and properly pan, or other metal device to contain that produces sound exceeding 96 dispose of pet and/or pack stock solid ashes. Mechanical stoves and other decibels. waste when and where indicated by a appliances that are fueled by gas and f. You must not operate an off- BLM sign or map. equipped with a valve that allows the highway vehicle (OHV) with any object operator to control the flame are among or person attached or being towed in 5. Special Recreation Permits and the devices that meet this requirement. any manner unless the off-road vehicle Registration d. When starting or maintaining a fire is designed and manufactured for such a. You must register, purchase outside of a developed recreation site, purposes. permits, and possess proof of permits as you must not fail to contain and dispose 2. Vehicle Size and Trail Width indicated by BLM sign or map. of fire ashes and debris in the manner b. If you use the Gunnison Gorge indicated by a BLM sign or map. a. You must not operate any vehicle e. You must not burn wood or other except a motorcycle, All Terrain Vehicle Wilderness as ingress to or egress from the Black Canyon National Park, you material containing nails, glass, or any (ATV), or a Utility Terrain Vehicle metal. (UTV) (50 inches in width or less) for must register and purchase a Gunnison motorized cross-country travel and/or Gorge Wilderness permit and possess 10. Human Waste Disposal play within the Flat Top-Peach Valley proof of the permit while in the Wilderness. You must dispose of solid human Recreation Area designated open areas. waste as indicated by a BLM sign or b. You must not operate any vehicle 6. Group Size Limits map. greater than 50 inches in width on any designated ATV/UTV routes. Exceeding group size limits, as 11. Other Use Authorizations c. You must not operate any vehicle indicated by a BLM sign or map, is prohibited. You must not violate any terms, greater than 36 inches in width or with conditions or stipulations of any permit more than two wheels on any 7. Camping or other authorization issued for special designated single track routes. a. You must not camp in sites or areas use of these public lands. 3. Firearms, Hunting, Target Shooting not designated as open to camping by a Exemptions: The following persons and Fireworks BLM sign or map. are exempt from these supplementary rules: Any Federal, State, local and/or a. Within the GGNCA, you must not b. Within the Gunnison Gorge military employee in the scope of their discharge a firearm of any kind, with the Wilderness you must not camp in any duties; members of any organized rescue exception of licensed hunters, who are site other than the designated or fire-fighting force in performance of permitted to discharge firearms only campsite(s) reserved by you or your an official duty; and persons, agencies, when they are in legitimate pursuit of group through the Gunnison Gorge municipalities, or companies holding an game during the proper season with permit system. existing special-use permit inside the appropriate firearms, as defined by the c. In designated campsites or camping GGNCA and operating within the scope Colorado Division of Wildlife. areas, you must maintain quiet within of their permit. Recreational or target shooting with any normal hearing range of any other Definitions: For the purpose of these type of firearm is prohibited everywhere person or persons, between 10 p.m. and supplementary rules, the following in the GGNCA at all times. 6 a.m. in accordance with applicable b. On public lands adjacent to the state time zone standards. definitions apply unless modified GGNCA, you must not target shoot in d. You must not leave personal within a specific part or regulation: Adjacent public lands means those areas closed to that use by a BLM sign belongings overnight in an unattended or map. campsite. non-GGNCA BLM public lands c. Target shooters must not shoot or e. You must keep campsites free of immediately adjacent to the GGNCA discharge any weapon at any object trash, litter and debris during the period and/or the Black Canyon of the containing glass, or other target material of occupancy and shall remove all Gunnison National Park whose that can shatter and cause a public personal equipment and clean sites management is addressed under the safety hazard as a result of the projectile upon departure. 2004 GGNCA Resource Management Plan (RMP). These lands include: Black impact or explosion. 8. Length of Stay d. You must not engage in any Ridge, Fruitland Mesa, West Peach activities involving the use of paintballs. a. Exceeding length of stay limits, as Valley, Flat Top, East Flat Top, and e. Persons who shoot or discharge any indicated by a BLM sign or map, is Jones Draw lands. weapon must remove and properly prohibited. All Terrain Vehicle (ATV) or Utility dispose of all shooting materials, b. The hours of operation are sunrise Terrain Vehicle (UTV) means off-road including spent brass or shells, their to sunset in any area that is for day-use vehicles 50 inches or less in overall containers, and any items used as only as indicated by a BLM sign or map. width and weighing no more than 800 targets. You must not enter or remain in such pounds. f. You must not discharge any weapon an area after sunset or before sunrise. Camping means erecting a tent or a within five hundred yards of any shelter of natural or synthetic materials, 9. Campfires and Wood Collecting developed recreation site or any other preparing a sleeping bag or other area that has been closed to discharge of a. You must not cut, collect, or use bedding material for use, or parking a firearms. live, dead or down wood except in areas motor vehicle, motor home, or trailer for g. You must not possess or discharge designated open to such use by a BLM the purpose or apparent purpose of any fireworks. sign or map. overnight occupancy while engaged in
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recreational activities such as hiking, recreation permit (SRP) and registration SUMMARY: The Bureau of Land hunting, fishing, bicycling, sightseeing, system that applies to all users 16 years Management (BLM) is proposing to sell off-road vehicle activities, or other of age and older in the Gunnison Gorge a parcel of public land totaling 1,142.10 generally recognized forms of Wilderness. Users are required to sign in acres in Caribou County, Idaho by direct recreation. at a Wilderness trailhead or the Chukar sale under the provisions of the Federal Designated campsite or site means a boater put-in site, pay applicable day- Land Policy and Management Act of specific location identified by the BLM use or camping fees, and reserve the 1976 (FLPMA). The land would be sold for camping or other purposes. designated boater or hiker campsite(s) for not less than fair market value. Designated sites include individual sites they intend to use during their stay. DATES: In order to ensure consideration in developed campgrounds that contain Motorized watercraft means any craft in the environmental analysis of the picnic tables, shelters, parking sites, operated upon water that is self- proposed sale, comments must be and/or grills; dispersed campsites propelled by a non-living power source, received by May 28, 2010. containing a sign and natural or man- including electric power. ADDRESSES: Address all comments made parking barricades denoting a Off-highway vehicle(OHV) or off-road concerning this notice to Field Manager, designated camping area; and other use vehicle (ORV) means any motorized Bureau of Land Management (BLM), areas specifically designated by signs for vehicle capable of, or designated for, Pocatello Field Office, 4350 Cliffs Drive, use by a certain user type including, but travel on or immediately over land, Pocatello, Idaho 83204. not limited to hikers, boaters, water, or other natural terrain, FOR FURTHER INFORMATION CONTACT: Jan equestrians, commercial outfitters, excluding: (1) Any non-amphibious Parmenter, Resource Coordinator, 1405 organized groups, or OHV users. registered motorboat; (2) any military, Hollipark Drive, Idaho Falls, Idaho Designated route means roads and fire, emergency, or law enforcement 83401 or phone (208) 524–7562. trails open to motorized vehicle use and vehicle while being used for emergency identified on a map of designated roads purposes; (3) any vehicle whose use is SUPPLEMENTARY INFORMATION: The and trails that is maintained and expressly authorized by the authorized following-described public land in available for public inspection at the officer, or otherwise officially approved; Caribou County, Idaho, is being BLM Uncompahgre Field Office, (4) vehicles in official use; and (5) any proposed for sale under the authority of Montrose, Colorado. Designated roads combat or combat-support vehicle when Section 203 of the FLPMA (43 U.S.C. and motorized trails are open to public used in times of national defense 1713): use in accordance with such limits and emergencies. Boise Meridian restrictions as are, or may be, specified Utility Terrain Vehicle (UTV) means T. 9 S., R. 44 E., in the RMP or in future decisions any multi-passenger off-highway vehicle implementing the RMP. However, any Sec. 6, lots 3 to 7, inclusive, SWNE, SENW, most commonly known as UTVs (Utility E2SW, SE; road or trail with any restrictive signing Terrain Vehicle or just Utility Vehicle) Sec. 7, lot 1, NE, E2NW, SE; or physical barrier, including gates, or Side-by-Side Vehicles; they are also Sec. 17, lots 1 and 2, S2NE. fences, posts, branches, or rocks known as SxS, RUV (Recreational The area described contains 1,142.10 acres intended to prevent use of the road or Utility Vehicle) or MUV (Multi-Use in Caribou County. trail is not a designated motorized road Vehicle). They are called Side-by-Side or motorized trail. The J. R. Simplot Company submitted Developed recreational site means any Vehicles because a driver and the Dairy Syncline Mine and site or area that contains structures or passenger(s) sit side-by-side in the Reclamation Plan (MRP) application to capital improvements primarily used by vehicle. the BLM on October 6, 2008, for the the public for recreation purposes. Such Penalties: Any person who violates Dairy Syncline Phosphate Lease Area. areas or sites may include such features any of these supplementary rules may The MRP is currently under review by as: Delineated spaces or areas for be tried before a United States the BLM, and an environmental impact parking, camping or boat launching; Magistrate and fined no more than statement (EIS) will be prepared sanitation facilities; potable water; grills $1,000 or imprisoned for no more than pursuant to the requirements of the or fire rings; tables; or controlled access. 12 months, or both. 43 U.S.C. 1733(a); National Environmental Policy Act to Flat Top-Peach Valley Recreation 43 CFR 8360.0–7. Such violations may determine and analyze the impacts of Area means the Flat Top-Peach Valley also be subject to the enhanced fines the MRP as well as the proposed land Special Recreation Management Area provided for by 18 U.S.C. 3571. sale. designated in the 2004 GGNCA RMP. David B. Hunsaker, According to the applicant, the parcel The recreation area contains developed Acting State Director. is a necessary component of the applicant’s development of existing recreation sites, open riding areas where [FR Doc. 2010–8395 Filed 4–12–10; 8:45 am] cross-country travel is permitted, and Federal mineral leases. Disposal of mill BILLING CODE 4310–JB–P designated routes and encompasses tailings is a critical aspect of the Dairy approximately 9,754 acres of public Syncline MRP, rendering the land lands in Montrose County including DEPARTMENT OF THE INTERIOR identified for sale an integral part of the lands both within and outside the MRP. Disposal of mill tailings would GGNCA. Bureau of Land Management require a tailings pond, an ore tailings Gunnison Gorge Wilderness means line from the mill to the tailings pond, the congressionally designated [LLIDI02000.L71220000.EO0000 as well as a water main return pipeline Wilderness Area within the GGNCA. LVTFD0980300; IDI–36468] from the tailings pond to the mill. These The Wilderness is managed by the BLM are all necessary components of the Notice of Realty Action: Proposed Sale as a Special Recreation Management MRP and would occur on the lands of Public Land in Caribou Co., ID and Wilderness Area and encompasses proposed for direct sale. Without the approximately 17,784 acres of public AGENCY: Bureau of Land Management, lands proposed for sale, mineral lands in Montrose and Delta counties. Interior. development under this specific Gunnison Gorge permit system means phosphate lease could be adversely ACTION: Notice of realty action. the mandatory self-issuing special affected.
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The current 1988 BLM Pocatello the segregation, or on April 13, 2012, Certain Footwear: Recommendations for Resource Management Plan (RMP) does whichever occurs first, unless the Modifying the Harmonized Tariff not identify this parcel of public land segregation period is extended by the Schedule of the United States, pursuant for disposal; however, this plan is BLM State Director in accordance with to section 1205 of the Omnibus Trade currently undergoing revision and 43 CFR 2711.1–2(d) prior to the and Competitiveness Act of 1988 (19 includes alternatives addressing land termination date. U.S.C. 3005), for the purpose of tenure adjustments which do identify Public Comments: For a period until submitting recommendations to the this parcel of public land for disposal. May 28, 2010, interested parties and the President regarding the addition of an An amendment to the current 1988 plan general public may submit written Additional U.S. Note and the may be necessary if the BLM ultimately comments concerning the land amendment of certain classification decides to convey this parcel prior to proposed for sale, including notification provisions in Chapter 64 of the the completion of the revision of this of any encumbrances or other claims Harmonized Tariff Schedule of the plan. relating to the identified land, to Field United States (HTS) relating to certain Conveyance of the identified public Manager, BLM Pocatello Field Office, at footwear featuring outer soles of rubber lands would be subject to valid existing the above address. In order to ensure or plastic to which a layer of textile rights and encumbrances of record, consideration in the environmental material has been added. including but not limited to, rights-of- analysis of the proposed sale, comments DATES: way for roads and public utilities. The must be in writing and postmarked or May 14, 2010: Deadline for filing conveyance would also be subject to an delivered within 45 days of the initial written submissions relating to appropriate indemnification provision date of publication of this Notice. proposed HTS changes requested by protecting the United Sates from claims Comments transmitted via e-mail will Department of Treasury. arising out of the patentee’s use, not be accepted. Comments, including May 28, 2010: Preliminary occupancy, or occupation on the names and street addresses of Commission report containing proposed patented lands. Conveyance of any respondents, will be available for public recommendations posted on the mineral interests pursuant to Section review at the BLM Pocatello Field Office Commission Web site at http:// 209 of the FLPMA will be analyzed during regular business hours, except www.usitc.gov/tariff_affairs/ during processing of the proposed sale. holidays. modifications_hts.htm. The proposed direct sale is allowable Individual respondents may request June 25, 2010: Deadline for filing pursuant to 43 CFR 2711–3.3(a)(2) and confidentiality. Before including your written submissions to be included in (a)(3). Specifically, the proposed sale is address, phone number, e-mail address, final recommendations. an integral part of the mineral lease or other personal identifying July 12, 2010: Transmittal of final development at the Dairy Syncline information in your comment, you recommendations to the President. Phosphate Lease Area. According to the should be aware that your entire ADDRESSES: All Commission offices are applicant, the economic viability of this comment—including your personal located in the United States project is dependent upon the identifying information—may be made International Trade Commission successful transfer of this land through publicly available at any time. While Building, 500 E Street, SW., sale to the mineral lessee. The mineral you can ask us in your comment to lessee would suffer substantial Washington, DC. All written withhold your personal identifying submissions should be addressed to the economic loss if the proposed sale tracts information from public review, we were purchased by another party or if Secretary, United States International cannot guarantee that we will be able to Trade Commission, 500 E Street, SW., the tracts were made unavailable for do so. sale or exchange. Washington, DC 20436. The public The land proposed for sale would not Authority: 43 CFR 2711.1–2. record for this collection of proposals be sold unless the BLM ultimately Dated: April 8, 2010. may be viewed on the Commission’s issues an approval for a mine and David A. Pacioretty, electronic docket (EDIS) at http:// reclamation plan that includes this land Pocatello Field Manager. www.usitc.gov/secretary/edis.htm. FOR FURTHER INFORMATION CONTACT: as a component necessary for operation [FR Doc. 2010–8390 Filed 4–12–10; 8:45 am] Donnette Rimmer, Nomenclature of the mine and development of the BILLING CODE 4310–GG–P Federal mineral leases. On April 13, Analyst (202–205–0663, 2010, the above-described land will be [email protected]), or Janis L. Summers, Attorney Advisor (202–205– segregated from all forms of INTERNATIONAL TRADE 2605, [email protected]), of the appropriation under the public land COMMISSION laws, including the mining laws and Office of Tariff Affairs and Trade mineral leasing laws, except the sale [Investigation No. 1205–8] Agreements (fax 202–205–2616). The provisions of the FLPMA. Until media should contact Margaret completion of the sale or termination of Certain Footwear: Recommendations O’Laughlin, Office of External Affairs the segregation, the BLM is no longer For Modifying the Harmonized Tariff (202–205–1819, accepting land use applications Schedule of the United States [email protected]). Hearing affecting the identified public land, AGENCY: United States International impaired individuals may obtain except applications for the amendment Trade Commission. information on this matter by contacting of previously filed right-of-way ACTION: Notice of institution of the Commission’s TDD terminal at 202– applications or existing authorizations investigation and opportunity to 205–1810. General information to increase the term of the grants in comment on proposed concerning the Commission may also be accordance with 43 CFR 2807.15 and recommendations. obtained by accessing its Internet Web 2886.15. site (http://www.usitc.gov). Persons with The segregative effect will terminate SUMMARY: Following receipt of a letter mobility impairments who will need upon issuance of a patent or other from the U.S. Department of the special assistance in gaining access to conveyance document, publication in Treasury (Treasury), the Commission the Commission should contact the the Federal Register of a termination of instituted investigation No. 1205–8, Office of the Secretary at 202–205–2000.
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Background: Section 1205(a) of the the WCO, provides a uniform structural authority for tariff classification and that Omnibus Trade and Competitiveness basis for the customs tariffs and Customs may provide information, both Act of 1988 (the 1988 Act) (19 U.S.C. statistical nomenclatures of all major before and after the proposed 3005(a)) provides that the Commission trading countries of the world, recommendations are posted, that shall keep the HTS under continuous including the United States. The HS indicates different or additional tariff review and periodically recommend to establishes the broadest principles of classifications of some goods. Thus, the the President such modifications in the classification and levels of categories in classifications that appear in the HTS as the Commission considers the HTS, comprising the General Rules Commission’s cross-reference table are necessary or appropriate to accomplish of Interpretation, Section and Chapter subject to change during the five general objectives. Among these titles, Section and Chapter legal notes, investigation. stated objectives, section 1205(a)(2) of and heading and subheading texts to the Written submissions should be filed the 1988 Act directs the Commission to 6-digit level of detail. Additional U.S. in accordance with the procedures consider changes to the HTS to promote Notes, further subdivisions (8-digit below. Interested parties should take the uniform application of the subheadings and 10-digit statistical into account the classification of the Harmonized System Convention and annotations) and statistical notes, as merchandise concerned under the particularly the Protocol thereto, which well as the entirety of chapters 98 and international Harmonized System as contains the Harmonized System 99 and several appendixes, are national well as domestic decisions and seek to nomenclature structure and legal and statistical detail added for the further the goals set out by section 1205 accompanying legal notes. Section administration of the U.S. tariff and of the 1988 Act and the Harmonized 1205(a)(4) directs the Commission to statistical programs and are not part of System Convention. No proposals for consider changes to the HTS to alleviate the international HS. changes to existing U.S. rates of duty or unnecessary administrative burdens. An up-to-date copy of the HTS, which to 10-digit statistical annotations or Subsections (b) through (d) of section incorporates the international HS in its notes will be considered by the 1205 describe the procedures the overall structure, can be found on the Commission during its review. Commission is to follow in formulating Commission’s Web site (http:// However, the Commission will examine recommendations, including with www.usitc.gov/tata/hts/bychapter/ information concerning the rates of duty respect to soliciting and considering index.htm). Hard copies and electronic currently utilized by importers in views of interested Federal agencies and copies on CD can be found at many of liquidated and undisputed entries of the public. Section 1205(b)(1) requires the 1,400 Federal Depository Libraries specific footwear that is the subject of that the Commission give notice of located throughout the United States this investigation. The changes in the proposed recommendations and afford and its territories; further information HTS that may result from this reasonable opportunity for interested about these locations can be found at investigation are not intended to alter parties to present their views in writing. http://www.gpoaccess.gov/fdlp.html or current tariff rates but instead are In a letter dated January 15, 2010, by contacting GPO Access at the intended to ensure that existing tariff from Timothy E. Skud, Deputy Assistant Government Printing Office at this rates continue to be applicable Secretary of the Treasury for Tax, Trade, telephone number: 866–512–1800. following the implementation of new and Tariff Policy, Treasury asked that The Commission will prepare a U.S. tariff provisions. the Commission conduct an preliminary report containing proposed Written Submissions: Interested investigation under section 1205 for the recommendations in order to provide parties and agencies are invited to file purpose of making recommendations to notice to the public of potential HTS written submissions relating to the the President regarding the addition of changes and to solicit comment and recommendations that the Commission an Additional U.S. Note and the input. In preparing these proposed should propose based on Treasury’s amendment of certain classification recommendations, the Commission will request. They may also file, following provisions in Chapter 64 of the HTSUS take into account Treasury’s request, as the posting of the Commission’s relating to certain footwear featuring well as all other appropriate legal and proposed recommendations, outer soles of rubber or plastics to technical considerations relating to HTS submissions relating to the which a layer of textile material has Chapter 64, and will include where recommendations that the Commission been added. The letter included appropriate the input submitted by must submit to the President. All Treasury’s proposed language for an other agencies and interested parties. written submissions should be Additional U.S. Note and proposed The Commission will post its addressed to the Secretary. Written changes in various U.S. tariff rate lines preliminary report containing the submissions relating to Treasury’s at the 8-digit level that take into account proposed recommendations on its Web request should be received no later than decisions of the Harmonized System site at http://www.usitc.gov/ May 14, 2010, and those relating to the Committee of the World Customs tariff_affairs/modifications_hts.htm by final recommendations the Commission Organization (WCO) on the May 28, 2010. The preliminary report should submit to the President should classification of particular footwear for will also include a non-authoritative be received no later than June 25, 2010. purposes of the Harmonized System. cross-reference table prepared by Submissions should refer to Treasury’s letter provided additional Commission staff that will show the ‘‘Investigation No. 1205–8’’ in a background on the tariff classification of likely existing and future tariff prominent place on the cover page and/ footwear and relevant decisions of U.S. classifications of the goods concerned. or the first page. All written Customs and Border Protection Any additional submissions from other submissions must conform with the (Customs) and noted the decisions that agencies and the public based on the provisions of section 201.8 of the are the basis of Treasury’s request. A preliminary report must be filed by June Commission’s Rules of Practice and copy of Treasury’s letter is being posted 25, 2010, in order to be taken into Procedure (19 CFR 201.8). Section 201.8 on the Commission’s Web site at account. The Commission will then requires that a signed original (or a copy http://www.usitc.gov. prepare its final report and so designated) and fourteen (14) copies The Harmonized Commodity recommendations to submit to the of each document be filed. In the event Description and Coding System (HS) President. Interested parties should be that confidential treatment of a nomenclature, which is maintained by aware that Customs has domestic legal document is requested, at least four (4)
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additional copies must be filed, in In accordance with 19 CFR 201.37, comments should address one or more which the confidential information the Commission has determined to of the following four points: must be deleted (see the following reschedule the above referenced —Evaluate whether the proposed paragraph for further information Commission meeting. Earlier collection of information is necessary regarding confidential business announcement of this rescheduling was for the proper performance of the information). The Commission’s rules not possible. functions of the agency, including authorize filing submissions with the Issued: April 9, 2010. whether the information will have practical utility; Secretary by facsimile or electronic By order of the Commission. means only to the extent permitted by —Evaluate the accuracy of the agencies William R. Bishop, section 201.8 of the rules (see Handbook estimate of the burden of the for Electronic Filing Procedures, http:// Hearings and Meetings Coordinator. proposed collection of information, www.usitc.gov/secretary/ [FR Doc. 2010–8587 Filed 4–9–10; 4:15 pm] including the validity of the fed_reg_notices/rules/documents/ BILLING CODE 7020–02–P methodology and assumptions used; handbook_on_electronic_filing.pdf). —Enhance the quality, utility, and Persons with questions regarding clarity of the information to be electronic filing should contact the DEPARTMENT OF JUSTICE collected; and Secretary (202–205–2000). —Minimize the burden of the collection Any submissions that contain Bureau of Alcohol, Tobacco, Firearms, of information on those who are to confidential business information must and Explosives respond, including through the use of also conform with the requirements of appropriate automated, electronic, section 201.6 of the Commission’s Rules [OMB Number 1140–0088] mechanical, or other technological of Practice and Procedure (19 CFR collection techniques or other forms 201.6). Section 201.6 of the rules Agency Information Collection of information technology, e.g., requires that the cover of the document Activities: Proposed Collection; permitting electronic submission of and the individual pages be clearly Comments Requested responses. marked as to whether they are the ACTION: 30-Day notice of information Overview of This Information ‘‘confidential’’ or ‘‘non-confidential’’ collection under review: Advanced Collection version, and that the confidential Explosives Destruction Techniques business information be clearly (1) Type of Information Collection: (AEDT) Training Course follow-up identified by means of brackets. All Extension of a currently approved evaluation form. written submissions, except for collection. (2) Title of the Form/Collection: confidential business information, will The Department of Justice (DOJ), Advanced Explosives Destruction be made available for inspection by Bureau of Alcohol, Tobacco, Firearms, Techniques (AEDT) Training Course interested parties. Confidential business and Explosives (ATF) will be submitting Follow-up Evaluation Form. information received in the proposals the following information collection (3) Agency form number, if any, and may be made available to Customs and request to the Office of Management and the applicable component of the Census during the examination of these Budget (OMB) for review and approval Department of Justice sponsoring the proposals. The Commission will not in accordance with the Paperwork collection: Form Number: None. Bureau otherwise publish or release any Reduction Act of 1995. The proposed of Alcohol, Tobacco, Firearms and confidential business information information collection is published to Explosives. received, nor release it to other obtain comments from the public and (4) Affected public who will be asked government agencies or other persons. affected agencies. This proposed or required to respond, as well as a brief By order of the Commission. information collection was previously abstract: Primary: State, Local, or Tribal Issued: April 8, 2010. published in the Federal Register Government. Other: none. Abstract: The Marilyn R. Abbott, Volume 75, Number 27, page 6708 on information collected on the survey will Secretary to the Commission. February 10, 2010, allowing for a 60 day provide ATF with data on how the [FR Doc. 2010–8360 Filed 4–12–10; 8:45 am] comment period. training participants have transferred BILLING CODE 7020–02–P The purpose of this notice is to allow the knowledge and skills learned to for an additional 30 days for public their jobs. The Kirkpatrick 4-Level comment until May 13, 2010. This Model is used to evaluate ATF training INTERNATIONAL TRADE process is conducted in accordance with programs. COMMISSION 5 CFR 1320.10. (5) An estimate of the total number of Written comments and/or suggestions respondents and the amount of time [USITC SE–10–008] regarding the items contained in this estimated for an average respondent to Sunshine Act Meeting Notice; notice, especially the estimated public respond: There will be an estimated 354 Rescheduling of Commission Meeting burden and associated response time, respondents, who will complete the should be directed to The Office of survey within approximately 12 AGENCY HOLDING THE MEETING: United Management and Budget, Office of minutes. States International Trade Commission. Information and Regulatory Affairs, (6) An estimate of the total burden (in Attention Department of Justice Desk ORIGINAL DATE AND TIME: April 14, 2010 hours) associated with the collection: at 11 a.m. Officer, Washington, DC 20503. There are an estimated 71 total burden Additionally, comments may be hours associated with this collection. NEW DATE AND TIME: April 15, 2010 at 11 submitted to OMB via facsimile to (202) If additional information is required a.m. 395–5806. contact: Lynn Bryant, Department PLACE: Room 101, 500 E Street, SW., Written comments and suggestions Clearance Officer, United States Washington, DC 20436. Telephone: from the public and affected agencies Department of Justice, Policy and (202) 205–2000. concerning the proposed collection of Planning Staff, Justice Management STATUS: Open to the public. information are encouraged. Your Division, Suite 1600, Patrick Henry
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Building, 601 D Street, NW., —Evaluate the accuracy of the agencies Dated: April 7, 2010. Washington, DC 20530. estimate of the burden of the Lynn Bryant, Dated: April 7, 2010. proposed collection of information, Department Clearance Officer, PRA, United Lynn Bryant, including the validity of the States Department of Justice. methodology and assumptions used; Department Clearance Officer, PRA, United [FR Doc. 2010–8346 Filed 4–12–10; 8:45 am] States Department of Justice. —Enhance the quality, utility, and BILLING CODE 4410–FY–P [FR Doc. 2010–8345 Filed 4–12–10; 8:45 am] clarity of the information to be collected; and BILLING CODE 4410–FY–P DEPARTMENT OF JUSTICE —Minimize the burden of the collection of information on those who are to Bureau of Alcohol, Tobacco, Firearms, DEPARTMENT OF JUSTICE respond, including through the use of and Explosives appropriate automated, electronic, Bureau of Alcohol, Tobacco, Firearms mechanical, or other technological [OMB Number 1140–0004] and Explosives collection techniques or other forms Agency Information Collection [OMB Number 1140–0068] of information technology, e.g., Activities: Proposed Collection; permitting electronic submission of Comments Requested Agency Information Collection responses. Activities: Proposed Collection; ACTION: 30-Day notice of information Comments Requested Overview of This Information Collection collection under review: Interstate ACTION: 30-Day notice of information firearms shipment report of theft/loss. (1) Type of Information Collection: collection under review: Police check The Department of Justice (DOJ), inquiry. Extension of a currently approved collection. Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) will be submitting The Department of Justice (DOJ), (2) Title of the Form/Collection: Police the following information collection Bureau of Alcohol, Tobacco, Firearms Check Inquiry. and Explosives (ATF) will be submitting request to the Office of Management and the following information collection (3) Agency form number, if any, and Budget (OMB) for review and approval request to the Office of Management and the applicable component of the in accordance with the Paperwork Budget (OMB) for review and approval Department of Justice sponsoring the Reduction Act of 1995. The proposed in accordance with the Paperwork collection: Form Number: ATF F information collection is published to Reduction Act of 1995. The proposed 8620.42. Bureau of Alcohol, Tobacco, obtain comments from the public and information collection is published to Firearms and Explosives. affected agencies. This proposed obtain comments from the public and (4) Affected public who will be asked information collection was previously affected agencies. This proposed or required to respond, as well as a brief published in the Federal Register information collection was previously abstract: Primary: Individuals or Volume 75, Number 27, page 6706–6707 published in the Federal Register households. Other: None. Abstract: ATF on February 10, 2010, allowing for a 60- Volume 75, Number 27, page 6707 on F 8620.42 has been designed as an day comment period. February 10, 2010, allowing for a 60-day internal use form to gather preliminary The purpose of this notice is to allow comment period. information from an individual for an additional 30 days for public The purpose of this notice is to allow requiring escorted access to ATF comment until May 13, 2010. This for an additional 30 days for public facilities. The information is necessary process is conducted in accordance with comment until May 13, 2010. This to permit ATF to complete and/or 5 CFR 1320.10. process is conducted in accordance with initiate a police check inquiry Written comments and/or suggestions 5 CFR 1320.10. consisting of criminal record searches. regarding the items contained in this Written comments and/or suggestions In the event a contractor or other type notice, especially the estimated public regarding the items contained in this of non-ATF personnel requires escorted burden and associated response time, notice, especially the estimated public access to facilities, ATF will perform a should be directed to The Office of burden and associated response time, police check inquiry. Management and Budget, Office of should be directed to The Office of Information and Regulatory Affairs, (5) An estimate of the total number of Management and Budget, Office of Attention Department of Justice Desk respondents and the amount of time Information and Regulatory Affairs, Officer, Washington, DC 20503. estimated for an average respondent to Attention Department of Justice Desk Additionally, comments may be respond: There will be an estimated Officer, Washington, DC 20503. submitted to OMB via facsimile to (202) 1,000 respondents, who will complete Additionally, comments may be 395–5806. the form within approximately 5 submitted to OMB via facsimile to (202) Written comments and suggestions minutes. 395–7285. from the public and affected agencies Written comments and suggestions (6) An estimate of the total burden (in concerning the proposed collection of from the public and affected agencies hours) associated with the collection: information are encouraged. Your concerning the proposed collection of There are an estimated 83 total burden comments should address one or more information are encouraged. Your hours associated with this collection. of the following four points: comments should address one or more If additional information is required —Evaluate whether the proposed of the following four points: contact: Lynn Bryant, Department collection of information is necessary —Evaluate whether the proposed Clearance Officer, United States for the proper performance of the collection of information is necessary Department of Justice, Policy and functions of the agency, including for the proper performance of the Planning Staff, Justice Management whether the information will have functions of the agency, including Division, Suite 1600, Patrick Henry practical utility; whether the information will have Building, 601 D Street, NW., —Evaluate the accuracy of the agencies practical utility; Washington, DC 20530. estimate of the burden of the
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proposed collection of information, DEPARTMENT OF JUSTICE —Minimize the burden of the collection including the validity of the of information on those who are to methodology and assumptions used; Bureau of Alcohol, Tobacco, Firearms respond, including through the use of —Enhance the quality, utility, and and Explosives appropriate automated, electronic, clarity of the information to be mechanical, or other technological collected; and [OMB Number 1140–0065] collection techniques or other forms —Minimize the burden of the collection Agency Information Collection of information technology, e.g., of information on those who are to Activities: Proposed Collection; permitting electronic submission of respond, including through the use of Comments Requested responses. appropriate automated, electronic, Overview of This Information mechanical, or other technological ACTION: 30-Day notice of information Collection collection techniques or other forms collection under review: Requisition for of information technology, e.g., forms or publications and requisition for (1) Type of Information Collection: permitting electronic submission of firearms/explosives forms. Extension of a currently approved responses. collection. The Department of Justice (DOJ), Overview of This Information Bureau of Alcohol, Tobacco, Firearms (2) Title of the Form/Collection: Collection and Explosives (ATF) will be submitting Requisition for Forms or Publications (1) Type of Information Collection: the following information collection and Requisition for Firearms/Explosives Extension of a currently approved request to the Office of Management and Forms. collection. Budget (OMB) for review and approval (3) Agency form number, if any, and (2) Title of the Form/Collection: in accordance with the Paperwork the applicable component of the Interstate Firearms Shipment Report of Reduction Act of 1995. The proposed Department of Justice sponsoring the Theft/Loss. information collection is published to collection: Form Number: ATF F 1370.3 obtain comments from the public and (3) Agency form number, if any, and and ATF F 1370.2. Bureau of Alcohol, affected agencies. This proposed the applicable component of the Tobacco, Firearms and Explosives. Department of Justice sponsoring the information collection was previously collection: Form Number: ATF F 3310.6. published in the Federal Register (4) Affected public who will be asked Bureau of Alcohol, Tobacco, Firearms Volume 75, Number 27, page 6708 on or required to respond, as well as a brief and Explosives. February 10, 2010, allowing for a 60-day abstract: Primary: Business or other for- (4) Affected public who will be asked comment period. profit. Other: Individuals or households. or required to respond, as well as a brief The purpose of this notice is to allow Abstract: The forms are used by the abstract: Primary: Business or other for- for an additional 30 days for public general public to request or order forms profit. Other: None. Abstract: The form comment until May 13, 2010. This or publications from the ATF is part of a voluntary program in which process is conducted in accordance with Distribution Center. The forms also the common carrier and/or shipper 5 CFR 1320.10. notify ATF of the quantity required by report losses or thefts of firearms from Written comments and/or suggestions the respondent and provide a guide as interstate shipments. ATF uses this regarding the items contained in this to annual usage of ATF forms and information to ensure that the firearms notice, especially the estimated public publications by the general public. are entered into the National Crime burden and associated response time, should be directed to The Office of (5) An estimate of the total number of Information Center to initiate respondents and the amount of time investigations and to perfect criminal Management and Budget, Office of estimated for an average respondent to cases. Information and Regulatory Affairs, respond: There will be an estimated (5) An estimate of the total number of Attention Department of Justice Desk 30,000 respondents, who will complete respondents and the amount of time Officer, Washington, DC 20503. each form within approximately 3 estimated for an average respondent to Additionally, comments may be respond: There will be an estimated 550 submitted to OMB via facsimile to (202) minutes. respondents, who will complete the 395–5806. (6) An estimate of the total burden (in form within approximately 20 minutes. Written comments and suggestions hours) associated with the collection: (6) An estimate of the total burden (in from the public and affected agencies There are an estimated 1, 725 total hours) associated with the collection: concerning the proposed collection of burden hours associated with this There are an estimated 182 total burden information are encouraged. Your collection. hours associated with this collection. comments should address one or more of the following four points: If additional information is required If additional information is required contact: Lynn Bryant, Department contact: Lynn Bryant, Department —Evaluate whether the proposed collection of information is necessary Clearance Officer, United States Clearance Officer, United States Department of Justice, Policy and Department of Justice, Policy and for the proper performance of the functions of the agency, including Planning Staff, Justice Management Planning Staff, Justice Management Division, Suite 1600, Patrick Henry Division, Suite 1600, Patrick Henry whether the information will have Building, 601 D Street, NW., Building, 601 D Street, NW., practical utility; Washington, DC 20530. Washington, DC 20530. —Evaluate the accuracy of the agency’s estimate of the burden of the Dated: April 7, 2010. Dated: April 7, 2010. proposed collection of information, Lynn Bryant, Lynn Bryant, including the validity of the Department Clearance Officer, PRA, United methodology and assumptions used; Department Clearance Officer, PRA, United States Department of Justice. —Enhance the quality, utility, and States Department of Justice. [FR Doc. 2010–8349 Filed 4–12–10; 8:45 am] clarity of the information to be [FR Doc. 2010–8347 Filed 4–12–10; 8:45 am] BILLING CODE 4410–FY–P collected; and BILLING CODE 4410–FY–P
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DEPARTMENT OF JUSTICE FINGERPRINT-BASED CHRI CHECKS below in the ADDRESSES section of this Notice. Federal Bureau of Investigation If the Check is a/an* * * The fee DATES: Written comments must be is*** submitted to the office listed in the [Docket No. FBI 121] Electronic transaction ...... $19.25 addresses section below on or before Electronic submission/man- June 14, 2010. FBI Criminal Justice Information ual response ADDRESSES: Mr. Vincent Alvarez, U.S. Services Division User Fees transaction* * * ...... $26.00 Department of Labor, 200 Constitution Manual transaction ...... $30.25 Ave., NW., Room S–3201, Washington, AGENCY: Federal Bureau of Volunteer under the VCA DC 20210, telephone (202) 693–0372, transaction* * * ...... $15.25 Investigation, Justice. fax (202) 693–1378, E-mail ACTION: Notice. [email protected]. Please use NAME-BASED CHRI CHECKS only one method of transmission for SUMMARY: This notice establishes the comments (mail, fax, or E-mail). The fee SUPPLEMENTARY INFORMATION: user fee schedule for fingerprint-based If the Check is a/an* * * is*** and name-based criminal history record I. Background checks performed by the FBI’s Criminal Electronic transaction* * * ... $2.25 Justice Information Services (CJIS) Manual transaction* * * ...... $6.00 The Longshore and Harbor Workers’ Division. Compensation Act (LHWCA) requires This fee schedule will become covered employers to secure the DATES: Effective Date: May 13, 2010. effective 30 days following publication payment of compensation under the Act of this notice. and its extensions by purchasing FOR FURTHER INFORMATION CONTACT: FBI, Dated: April 6, 2010. insurance from a carrier authorized by CJIS Division, 1000 Custer Hollow Road, the Secretary of Labor to write Robert S. Mueller, III, Clarksburg, West Virginia 26306. Longshore Act Insurance, or by Attention: Christopher L. Enourato, Director, Federal Bureau of Investigation. becoming authorized self-insured 304–625–2910. [FR Doc. 2010–8381 Filed 4–12–10; 8:45 am] employers (33 U.S.C. 932 et seq). Each BILLING CODE 4410–02–P SUPPLEMENTARY INFORMATION: Pursuant authorized insurance carrier (or carrier to 28 CFR 20.31(e), the FBI may seeking authorization) is required to routinely establish and collect fees for establish annually that its Longshore DEPARTMENT OF LABOR noncriminal justice fingerprint-based obligations are fully secured either and other identification services as through an applicable State guaranty (or Office of Workers’ Compensation analogous) fund, a deposit of security authorized by federal law. These fees Programs apply to federal, state and any other with the Division of Longshore and authorized entities requesting Division of Longshore and Harbor Harbor Workers’ Compensation fingerprint identification records and Workers’ Compensation; Proposed (DLHWC), or a combination of both. name checks for noncriminal justice Collection; Comment Request Similarly, each authorized self-insurer purposes. Elsewhere in today’s issue of (or employer seeking authorization) is the Federal Register the FBI is ACTION: Notice. required to fully secure its Longshore publishing the final rule related to this Act obligations by depositing security SUMMARY: The Department of Labor, as notice codifying in the Code of Federal with DLHWC. These requirements are part of its continuing effort to reduce designed to assure the prompt and Regulations the FBI’s authority in this paperwork and respondent burden, area. continued payment of compensation conducts a preclearance consultation and other benefits by the responsible (1) The Director of the FBI shall program to provide the general public carrier or self-insurer to injured workers review the amount of the fee and Federal agencies with an and their survivors. Forms LS–276, periodically, but not less than every four opportunity to comment on proposed Application for Security Deposit years, to determine the current cost of and/or continuing collections of Determination; LS–275–IC, Agreement processing fingerprint identification information in accordance with the and Undertaking (Insurance Carrier); records and name checks for paperwork Reduction Act of 1995 and LS–275–SI, Agreement and noncriminal justice purposes. (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This Undertaking (Self-insured Employer) are (2) Fee amounts and any revisions program helps to ensure that requested used to cover the submission of thereto shall be determined by current data can be provided in the desired information by insurance carriers and costs, using a method of analysis format, reporting burden (time and self-insured employers regarding their consistent with widely accepted financial resources) is minimized, ability to meet their financial accounting principles and practices, and collection instruments are clearly obligations under the Longshore Act calculated in accordance with the understood, and the impact of collection and its extensions. This information provisions of 31 U.S.C. 9701 and other requirements on respondents can be collection is currently approved for use federal law as applicable. properly assessed. Currently, the Office through September 30, 2010. of Workers’ Compensation (OWCP) is (3) Fee amounts and any revisions soliciting comments concerning the II. Review Focus thereto shall be published as a Notice in proposed collection: Securing Financial The Department of Labor is the Federal Register. Obligations under the Longshore and particularly interested in comments The following fee schedule provides Harbor Workers’ Compensation Act and which: the user fees for fingerprint-based and its Extension (LS–276, LS–275–IC and * Evaluate whether the proposed name-based criminal history record LS–275–SI). A copy of the proposed collection of information is necessary information (CHRI) checks by the CJIS information collection request can be for the proper performance of the Division. obtained by contacting the office listed functions of the agency, including
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whether the information will have DEPARTMENT OF LABOR rescue teams for underground coal practical utility; mines on February 8, 2008. * Evaluate the accuracy of the Mine Safety and Health Administration The United Mine Workers of America agency’s estimate of the burden of the challenged the final rule in the U.S. proposed collection of information, Mine Rescue Teams and Arrangements Court of Appeals for the District of including the validity of the for Emergency Medical Assistance and Columbia Circuit (Court). On February methodology and assumptions used; Transportation for Injured Persons at 10, 2009, the Court vacated several of * Enhance the quality, utility and Coal Mines the rule’s provisions. Consistent with clarity of the information to be ACTION: Notice. the Court’s decision, MSHA revised its collected; and requirements for mine rescue teams for * Minimize the burden of the SUMMARY: The Department of Labor, as underground coal mines on June 17, collection of information on those who part of its continuing effort to reduce 2009. The 2008 mine rescue team are to respond, including through the paperwork and respondent burden, standard and 2009 revision added use of appropriate automated, conducts a pre-clearance consultation burden to existing information electronic, mechanical, or other program to provide the general public collection requirements and imposed technological collection techniques or and Federal agencies with an two new information collection other forms of information technology, opportunity to comment on proposed requirements. e.g., permitting electronic submissions and/or continuing collections of MSHA last submitted paperwork of responses. information in accordance with the package 1219–0144 to OMB in May III. Current Actions Paperwork Reduction Act of 1995 2009, under the emergency review (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This procedures in 5 CFR 1320.13. The Department of Labor seeks the program helps to ensure that requested Section 4 of the Mine Improvement approval for the extension of this data can be provided in the desired and New Emergency Response (MINER) currently-approved information format, reporting burden (time and Act of 2006 required MSHA to collection in order to carry out its financial resources) is minimized, promulgate standards for mine rescue responsibility to ensure that a carrier’s collection instruments are clearly teams for underground coal mines. The LHWCA obligations are sufficiently understood, and the impact of collection May 2009 paperwork package 1219– secured and, if necessary, to deposit requirements on respondents can be 0144 addressed only the increased security in an amount set by OWCP. properly assessed. Currently, the Mine burden associated with the revised and This procedure will ensure the prompt Safety and Health Administration new standards and did not include the and continued payments of (MSHA) is soliciting comments information collection burden for the compensation and medical benefits to concerning the extension of the existing mine rescue team standard not injured workers and help protect the information collection related to the 30 addressed by the MINER Act, which had Longshore special funds assets from CFR Sections 49.12, 49.13, 14.16, 49.17, been approved under paperwork consequences flowing from insurance 49.18, 49.19, 49.50, 75.1713–1(a),(b) and package 1219–0078 for both coal and carriers’ insolvencies. (e), and 77.1702(a), (b), and (e). metal and nonmetal mines. This Type of Review: Extension. Agency: Office of Workers’ DATES: All comments must be received paperwork package 1219–0144 Compensation Programs. by midnight Eastern Daylight Savings combines the additional burden from Title: Request for Earnings Time on June 14, 2010. the revised and new standards for Information. ADDRESSES: Comments must clearly be underground coal mine rescue teams OMB Number: 1240–0005. identified with the rule title and may be with the existing information collection Agency Number: LS–276, LS–275–IC submitted to MSHA by any of the burden, which has been removed from and LS–275–SI. following methods: paperwork package 1219–0078. (The Affected Public: Business or other for- (1) Electronic mail: zzMSHA– metal and nonmetal mine rescue team profit, Not-for-profit institution. [email protected]. paperwork package, OMB control Total Respondents: 572. (2) Facsimile: (202) 693–9441. number 1219–0078, has been extended Total Annual Responses: 651. (3) Regular Mail: MSHA, Office of to February 28, 2013, ICR reference Estimated Total Burden Hours: 436.5. Standards, Regulations, and Variances, number 200912–1219–003.) Estimated Time per Response: 15 1100 Wilson Blvd., Room 2350, This package covers the following minutes to 60 minutes. Arlington, VA 22209–3939. requirements for coal mines: Frequency: Annually. (4) Hand Delivery or Courier: MSHA, • Each operator of a coal mine who Total Burden Cost (capital/startup): Office of Standards, Regulations, and provides rescue teams is required to $0. Variances, 1100 Wilson Blvd., Room send the District Manager a statement Total Burden Cost (operating/ 2350, Arlington, VA 22209–3939. Sign describing the mine’s method of maintenance): $169.52. in at the receptionist’s desk on the 21st compliance with the standard. Comments submitted in response to floor. • Small or remote mines may submit this notice will be summarized and/or FOR FURTHER INFORMATION CONTACT: an application of an arrangement for included in the request for Office of Mario Distasio, Chief of the Economic alternative mine rescue capability to Management and Budget approval of the Analysis Division, Office of Standards MSHA for approval. information collection request; they will Regulations, and Variances, MSHA, at • A person trained in the use and care also become a matter of public record. [email protected] (e-mail), 202– of the breathing apparatus is required to Dated: April 2, 2010. 693–9445 (voicemail), 202–693–9441 certify by signature and date that the Vincent Alvarez, (facsimile). required inspections and tests were Agency Clearance Officer, Office of Workers’ SUPPLEMENTARY INFORMATION: done, take corrective action if indicated, Compensation Programs, U.S. Department of and record any corrective action taken. Labor. I. Background • Each member of a mine rescue team [FR Doc. 2010–8408 Filed 4–12–10; 8:45 am] MSHA published a final rule revising must be examined annually by a BILLING CODE 4510–CF–P the Agency’s requirements for mine physician who must certify that each
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person is physically fit to perform mine • Minimize the burden of the Affected Public: Business or other for- rescue and recovery work. collection of information on those who profit. • A record of the training received by are to respond, including through the Cost to Federal Government: 25,108. each mine rescue team member in the use of appropriate automated, Total Burden Respondents: 2,055. use, care, and maintenance of the type electronic, mechanical, or other Total Number of Responses: 24,767. of breathing apparatus that will be used technological collection techniques or Total Burden Hours: 5,181. by the mine rescue team must be made other forms of information technology, Total Hour Burden Cost (operating/ and kept on file at the mine rescue e.g., permitting electronic submissions maintaining): $863,397. station for a period of one year. The of responses. Comments submitted in response to operator must provide the District A copy of the proposed information this notice will be summarized and/or Manager information concerning the collection request can be obtained by included in the request for Office of schedule of upcoming training when contacting the employee listed in the Management and Budget approval of the requested. FOR FURTHER INFORMATION CONTACT information collection request; they will • Each mine must have a mine rescue section of this notice, or viewed on the also become a matter of public record. notification plan outlining the Internet by ‘‘Rules & Reg’’, and then Dated: April 7, 2010. procedures to be followed in notifying selecting ‘‘FedReg.Docs’’. the mine rescue teams when there is an On the next screen, select ‘‘Paperwork Patricia W. Silvey, emergency that requires their services. Reduction Act Supporting Statement’’ to Director, Office of Standards, Regulations and • Underground coal mine operators view documents supporting the Federal Variances. must certify that each designated coal Register Notice. [FR Doc. 2010–8356 Filed 4–12–10; 8:45 am] mine rescue team meets the BILLING CODE 4510–43–P requirements of 30 CFR part 49 subpart III. Current Actions B. This request for collection of • Coal mine operators must make information contains notification and arrangements for 24-hour emergency recordkeeping provisions Mine Rescue MILLENNIUM CHALLENGE medical assistance and transportation Teams and Arrangements for Emergency CORPORATION for injured persons and to post this Medical Assistance and Transportation information at appropriate places at the for Injured Persons at Coal Mines. [MCC FR 10–04] mine, including the names, titles, MSHA does not intend to publish the addresses, and telephone numbers of all results of this information collection Notice of Quarterly Report (October 1, persons or services currently available and is not seeking approval to not 2009—December 31, 2009) under those arrangements. display the expiration date or OMB AGENCY: Millennium Challenge approval number for this collection of II. Desired Focus of Comments Corporation. information. MSHA is particularly interested in There are no certification exceptions SUMMARY: The Millennium Challenge comments that: identified with this information Corporation (MCC) is reporting for the • Evaluate whether the proposed collection and the collection of this quarter October 1, 2009 through collection of information is necessary information does not employ statistical December 31, 2009, on assistance for the proper performance of the methods. provided under section 605 of the functions of the agency, including Type of Review: Renewal. Millennium Challenge Act of 2003 (22 whether the information will have Agency: Mine Safety and Health U.S.C. 7701 et seq.), as amended (the practical utility; Administration. Act), and on transfers or allocations of • Evaluate the accuracy of the Title: Mine Rescue Teams, funds to other federal agencies under agency’s estimate of the burden of the Arrangements for Emergency Medical section 619(b) of the Act. The following proposed collection of information, Assistance and Transportation for report will be made available to the including the validity of the Injured Persons; Agreements; Reporting public by publication in the Federal methodology and assumptions used; Requirements; Posting Requirements Register and on the Internet Web site of • Enhance the quality, utility, and and for Coal Mine Operators. the MCC (http://www.mcc.gov) in clarity of the information to be OMB Number: 1219–0144. accordance with section 612(b) of the collected; and Frequency: On Occasion. Act.
ASSISTANCE PROVIDED UNDER SECTION 605
Cumulative Projects Obligated Objectives disbursements Measures
Country: Madagascar Year: 2010 Quarter 1 Total Obligation: $87,998,166
Entity to which the assistance is provided: MCA Madagascar Total Quarterly Disbursement: $4,193,753
Land Tenure Project ...... $30,123,098 Increase Land Titling and $29,667,721 Area secured with land certificates or titles in the Security. Zones. Proportion of the population informed about land tenure reforms in the Zones. Legal and regulatory reforms adopted. Number of land documents inventoried in the Zones and Antananarivo. Number of land documents restored in the Zones and Antananarivo. Number of land documents digitized in the Zones and Antananarivo.
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ASSISTANCE PROVIDED UNDER SECTION 605—Continued
Cumulative Projects Obligated Objectives disbursements Measures
Average time for Land Services Offices to issue a duplicate copy of a title. Average cost to a user to obtain a duplicate copy of a title from the Land Services Offices. Number of land certificates delivered in the Zones during the period. Number of new guichets fonciers operating in the Zones. The 256 Plan Local d’Occupation Foncier—Local Plan of Land Occupation (PLOFs) are completed. Finance Project ...... 25,937,781 Increase Competition in 23,535,849 Volume of funds processed annually by the national the Financial Sector. payment system. The components necessary to implement the na- tional payment system are operational: network equipment and integrator, real time gross settle- ment system (RTGS), retail payment clearing sys- tem, telecommunication facilities. Number of accountants and financial experts reg- istered to become Certified Public Accountant (CPA). Percent of Micro-Finance Institution (MFI) loans re- corded in the Central Bank database. Agricultural Business In- 13,687,196 Improve Agricultural Pro- 13,582,621 Number of farmers that adopt new technologies or vestment Project. jection Technologies engage in higher value production. and Market Capacity in Number of enterprises that adopt new technologies Rural Areas. or engage in higher value production. Number of farmers receiving technical assistance. Number of farmers employing technical assistance. Number of businesses receiving technical assist- ance. Number of Mniste`re de l’Agriculture, de l’Elevage et de la Peˆche—Ministry of Agriculture, Livestock, and Fishing (MAEP) agents trained in marketing and investment promotion. Zones identified and description of beneficiaries within each zone submitted. Number of people receiving information from Agri- cultural Business Center (ABCs) on business op- portunities. Zonal investment strategies for the Zones are devel- oped. Number of ABC clients who register as formal enter- prises, cooperatives, or associations. Number of marketing contracts of ABC clients. Program Administration* 18,250,091 ...... 17,583,512 and Control, Monitoring and Evaluation. Pending subsequent ...... 1,368,813 reports**.
* Program administration funds are used to pay items such as salaries, rent, and the cost of office equipment. ** These amounts represent disbursements made that will be allocated to individual projects in the subsequent quarter(s) and reported as such in subsequent quarterly report(s) Cumulative Projects Obligated Objective disbursements Measures
Country: Honduras Year: 2010 Quarter 1 Total Obligation: $205,000,000
Entity to which the assist- ance is provided: MCA Honduras Total Quarterly Disburse- ment: $23,018,243 Rural Development Project 69,907,000 Increase the productivity 45,706,605 Number of program farmers harvesting high-value and business skills of horticulture crops. farmers who operate Number of hectares harvesting high-value horti- small and medium-size culture crops. farms and their employ- Number of business plans prepared by program ees.. farmers with assistance from the implementing entity.
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Cumulative Projects Obligated Objective disbursements Measures
Total value of net sales. Total number of recruited farmers receiving tech- nical assistance. Value of loans disbursed (disaggregated by trust fund, leveraged from trust fund, and institutions receiving technical assistance from ACDI–VOCA). Number of loans disbursed (disaggregated by trust fund, leveraged from trust fund, and institutions receiving technical assistance from ACDI–VOCA). Percentage of loan portfolio at risk (disaggregated by trust fund and institutions receiving technical assistance from ACDI–VOCA). Funds lent from the trust fund to financial inter- mediaries through lines of credit. Number of hectares under irrigation. Number of beneficial biological control agents devel- oped for use by program farmers or other farmers for pilot testing. Number of improved coffee hybrids available for cloning. Number of farmers connected to the community irri- gation system. Number of certified deliverables across all agricul- tural public goods grant. Transportation Project ...... 119,005,876 Reduce transportation 75,891,981 Freight shipment cost from Tegucigalpa to Puerto costs between targeted Cortes. production centers and Average annual daily traffic volume—CA–5. national, regional and International roughness index (IRI)—CA–5. global markets. Kilometers of road upgraded—CA–5. Percent of contracted road works disbursed—CA–5. Average annual daily traffic volume—secondary roads. International roughness index (IRI)—secondary roads. Kilometers of road upgraded—secondary roads. Percent of contracted road works disbursed—sec- ondary roads. Average annual daily traffic volume—rural roads. Average speed—rural roads. Kilometers of road upgraded—rural roads. Percent of contracted road works disbursed—rural roads. Signed contracts for feasibility and/or design stud- ies. Percent of contracted studies disbursed. Kilometers (km) of roads under design. Signed contracts for roads works. Kilometers (km) of roads under works contracts. Program Administration* 16,087,124 ...... 9,027,708 and Control, Monitoring and Evaluation. Pending subsequent ...... 1,521,767 reports**. Cumulative Projects Obligated Objective disbursements Measures
Country: Cape Verde Year: 2010 Quarter 1 Total Obligation: $110,078,488
Entity to which the assist- ance is provided: MCA Cape Verde Total Quarterly Disburse- ment: $8,048,329 Watershed and Agricultural 11,001,130 Increase agricultural pro- 8,116,030 Productivity: Horticulture, Paul watershed. Support. duction in three tar- Productivity: Horticulture, Faja watershed. geted watershed areas Productivity: Horticulture, Mosteiros watershed. on three islands. Number of farmers adopting drip irrigation. Area irrigated with drip irrigation. Percent of contracted irrigation works disbursed (cu- mulative). Reservoirs constructed.
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Cumulative Projects Obligated Objective disbursements Measures
Number of farmers that have completed training in at least 3 of 5 core agricultural disciplines. Infrastructure Improvement 83,160,208 Increase integration of the 49,148,363 Travel time ratio: percentage of beneficiary popu- internal market and re- lation further than 30 minutes from nearest mar- duce transportation ket. costs. Kilometers of roads rehabilitated. Percent of contracted Santiago Roads works dis- bursed (cumulative). Percent of contracted Santo Antao Bridge works disbursed (cumulative). Kilometers (km) of roads under design. Signed contracts for roads works. Kilometers (km) of roads under works contracts. Port of Praia: percent of contracted port works dis- bursed (cumulative). Cargo village: percent of works completed. Quay 2 improvements: percent of works completed. Access road: percent of works completed. Private Sector Develop- 2,081,223 Spur private sector devel- 1,188,909 Micro-Finance Institution (MFI) recovery rate, ad- ment. opment on all islands justed. through increased in- MFI portfolio at risk, adjusted. vestment in the priority Ratio of MFIs operationally self-sufficient. sectors and through fi- nancial sector reform. Program Administration* 13,835,927 ...... 9,213,906 and Control, Monitoring and Evaluation. Pending subsequent ...... 1,471,195 reports**. Cumulative Projects Obligated Objective disbursements Measures
Country: Nicaragua Year: 2010 Quarter 1 Total Obligation: $113,599,752
Entity to which the assist- ance is provided: MCA Nicaragua Total Quarterly Disburse- ment: $12,093,689 Property Regularization 7,205,205 Increase Investment by 7,204,952 Automated database of registry and cadastre in- Project. strengthening property stalled in the 10 municipalities of Leon. rights. Value of land, urban. Value of land, rural. Time to conduct a land transaction. Number of additional parcels with a registered title, urban. Number of additional parcels with a registered title, rural. Number of protected areas demarcated. Area covered by cadastral mapping. Cost to conduct a land transaction. Transportation Project ...... 57,999,999 Reduce transportation 44,081,241 Annual Average daily traffic volume: N1 Section R1. costs between Leon Annual Average daily traffic volume: N1 Section R2. and Chinandega and Annual Average daily traffic volume: Port Sandino national, regional and (S13). global markets. Annual Average daily traffic volume: Villanueva— Guasaule Annual. Average daily traffic volume: Somotillo-Cinco Pinos (S1). Annual average daily traffic volume: Leo´n-Poneloya- Las Pen˜itas. International Roughness Index: N–I Section R1. International Roughness Index: N–I Section R2. International Roughness Index: Port Sandino (S13). International roughness index: Villanueva— Guasaule. International roughness index: Somotillo-Cinco Pinos. International roughness index: Leo´n-Poneloya-Las Pen˜itas. Kilometers of NI upgraded: R1 and R2 and S13. Kilometers of NI upgraded: Villanueva—Guasaule.
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Cumulative Projects Obligated Objective disbursements Measures
Kilometers of S1 road upgraded. Kilometers of S9 road upgraded. Kilometers of designed primary roads (including N–I/ Puerto Sandino and V–G). Kilometers of designed secondary roads. Rural Development Project 32,897,500 Increase the value added 22,401,745 Number of beneficiaries with business plans pre- of farms and enter- pared with assistance from the Rural Develop- prises in the region. ment Business Project. Numbers of manzanas (1 Manzana = 1.7 hectares), by sector, harvesting higher-value crops. Number of manzanas of beneficiaries of the pro- gram that harvest higher-value crops with irriga- tion or commercial reforestation under Improve- ment of Water Supply Activities. Number of beneficiaries implementing business plans. Average increase in income of beneficiaries due to program. Program Administration*, 15,497,048 ...... 10,375,380 Due Diligence, Moni- toring and Evaluation. Pending subsequent ...... 3,759,039 reports**. Cumulative Projects Obligated Objective disbursements Measures
Country: Georgia Year: 2010 Quarter 1 Total Obligation: $395,300,000
Entity to which the assist- ance is provided: MCA Georgia Total Quar- terly Disbursement: $45,135,334 Regional Infrastructure Re- 310,750,000 Key Regional Infrastruc- 136,600,072 Household savings from Infrastructure Rehabilitation habilitation. ture Rehabilitated. Activities. Savings in vehicle operating costs (VOC). International roughness index (IRI). Annual average daily traffic (AADT). Travel Time. Kilometers of road paved. Percent of contracted works disbursed. Signed contracts for feasibility and/or design stud- ies. Percent of contracted studies disbursed. Kilometers of roads under design. Signed contracts for road works. Kilometers of roads under works contracts. Sites rehabilitated (phases I, II, III)—pipeline. Construction works completed (phase II)—pipeline. Savings in household expenditures for all sub- projects. Population Served by all subprojects. Subprojects completed. Value of project grant agreements signed. Value of project works and goods contracts signed. Subprojects with works initiated. Regional Enterprise Devel- 52,200,000 Enterprises in Regions 38,387,329 Jobs Created by Agribusiness Development Activity opment. Developed. (ADA) and by Georgia Regional Development Fund (GRDF). Household net income—ADA and GRDF. Jobs created—ADA. Firm income ADA. Household net income—ADA. Beneficiaries (direct and indirect)—ADA. Grant agreements signed—ADA. Increase in gross revenues of portfolio companies (PC). Increase in portfolio company employees. Increase in wages paid to the portfolio company employees. Cumulative number of portfolio companies. Funds disbursed to the portfolio companies.
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Cumulative Projects Obligated Objective disbursements Measures
Program Administration*, 32,350,000 ...... 16,093,973 Due Diligence, Moni- toring and Evaluation. Pending subsequent ...... 0 reports**.
November 2008, MCC and the Georgian government signed a Compact amendment making up to $100 million of additional funds available to the Millennium Challenge Georgia Fund. These funds will be used to complete works in the Roads, Regional Infrastructure Development, and Energy Rehabilitation Projects contemplated by the original Compact. The amendment was ratified by the Georgian parliament and entered into force on January 30, 2009.
Cumulative Projects Obligated Objective disbursements Measures
Country: Vanuatu Year: 2010 Quarter 1 Total Obligation: $65,690,000
Entity to which the assist- ance is provided: MCA Vanuatu Total Quarterly Disburse- ment: $6,590,285 Transportation Infrastruc- 60,162,579 Facilitate transportation to 42,223,234 Number of international tourists—Efate. ture Project. increase tourism and Number of international tourists—Santo. business development. Number of room nights occupied—Efate. Number of room nights occupied—Santo. Average annual daily traffic—Efate. Average annual daily traffic—Santo. Kilometers of road upgraded—Efate. Kilometers of roads upgraded—Santo. Signed contracts for feasibility and/or design stud- ies. Percent of contracted studies disbursed. Kilometers (km) of roads under design. Signed contracts for roads works. Kilometers (km) of roads under works contracts. Percent of contracted roads works disbursed. Program Administration*, 5,527,421 ...... 2,835,051 Due Diligence, Moni- toring and Evaluation. Pending subsequent ...... 104,691 reports**.
Cumulative Projects Obligated Objective disbursements Measures
Country: Armenia Year: 2010 Quarter 1 Total Obligation: $235,650,000
Entity to which the assist- ance is provided: MCA Armenia Total Quarterly Disburse- ment: $12,688,383 Irrigated Agriculture Project 152,629,208 Increase agricultural pro- 35,432,441 Recovery of Water User Associations (WUA) oper- (Agriculture and Water). ductivity Improve and ations and maintenance cost by water charges. Quality of Irrigation. Primary canals rehabilitated. Tertiary canals rehabilitated. Percent of contracted irrigation works disbursed. Value of signed contracts for irrigation works. Number of farmers using better on-farm water man- agement. Number of farmers trained. Number of agribusinesses assisted. Value of agricultural loans to farmers/agri- businesses. Rural Road Rehabilitation 67,100,000 Better access to eco- 7,870,944 Average annual daily traffic. Project. nomic and social infra- International roughness index. structure. Kilometers of roads rehabilitated. Percent of contracted roads works disbursed. Signed contracts for roads works. Percent of contracted studies disbursed. Kilometers (km) of roads under design.
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Cumulative Projects Obligated Objective disbursements Measures
Signed contracts for feasibility and/or design stud- ies. Kilometers (km) of roads under works contracts. Program Administration*, 15,920,792 ...... 9,731,968 Due Diligence, Moni- toring and Evaluation. Pending subsequent ...... 992,543 reports**. Cumulative Projects Obligated Objective disbursements Measures
Country: Benin Year: 2010 Quarter 1 Total Obligation: $307,298,040
Entity to which the assist- ance is provided: MCA Benin Total Quar- terly Disbursement: $17,276,237 Access to Financial Serv- 19,650,000 Expand Access to Finan- 3,337,246 Volume of credits granted by the Micro-Finance In- ices. cial Services. stitutions (MFI). Volume of saving collected by the Micro-Finance In- stitutions. Average portfolio at risk >90 days of microfinance institutions at the national level. Operational self-sufficiency of MFIs at the national level. Average time required by Cellule de Surveillance des Structures Financie`res De´centralise´es (CSSFD) in treating MFI applications. Number of institutions receiving grants through the Facility. Second call for proposal for grants launched. Number of MFIs inspected by CSSFD. Access to Justice ...... 34,270,000 Improved Ability of Justice 1,940,659 Average time to enforce a contract. System to Enforce Con- Percent of firms reporting confidence in the judicial tracts and Reconcile system. Claims. Number of cases processed at Arbitration Center per year. Number of Information, Education and Communica- tion Campaign (IEC) sessions hosted by Chamber of Commerce (CAMeC). Passage of new legal codes. Average time required for Tribunaux de premiere instance- arbitration centers and courts of first in- stance (TPI) to reach a final decision on a case. Average time required for Court of Appeals to reach a final decision on a case. Percent of cases resolved in TPI per year. Percent of cases resolved in Court of Appeals per year. Number of Court inspections per year. Number of Court employees trained. Number of beneficiaries of legal aid services. Complete construction on 9 new court houses. Average time required to register a business (socie´te´). Average time required to register a business (sole proprietorship). Number of businesses accessing CAMEC service. Business registration center (CFE) information and outreach campaign executed throughout Benin. Access to Land ...... 36,020,000 Strengthen property rights 12,582,598 Total value of investment in targeted urban land and increase invest- parcels. ment in rural and urban Total value of investment in targeted rural land par- land. cels. Average cost required to obtain a new land title through on demand process. Average cost required to convert occupancy permit to land title through systematic process. Percentage of respondents perceiving land security in the Occupancy Permit (PH) into Land titles (TF) or Rural Land Plan Foncier Rural (PFR) areas.
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Cumulative Projects Obligated Objective disbursements Measures
Number of new land disputes reported by commune heads. Seven studies complete. Land code texts adopted (laws, decrees and land code). Value ($) of equipment purchased. Number of land certificates issued within MCA- Benin implementation. Number of habitation permits converted to land ti- tles. Number of Continuously Operating Reference (CORS) stations installed. Number of public and private surveyors trained. Number of communes with new cadastres. Land market information system established. Access to Markets ...... 169,447,000 Improve Access to Mar- 27,391,206 Volume of merchandise traffic through the Port kets through Improve- Autonome de Cotonou. ments to the Port of Bulk ship carriers waiting times at the port. Cotonou. Container ship waiting times at the port. Port design-build contract awarded. Port crime levels (number of thefts). Internal port circulation time. Average time to clear customs. Execution rate of training plan. Port meets—international port security standards (ISPS). Public consultation completed (3). Environmental permits issued. Program Administration*, 47,911,040 ...... 20,768,780 Due Diligence, Moni- toring and Evaluation. Pending subsequent ...... 283,061 reports**. Cumulative Projects Obligated Objective disbursements Measures
Country: Ghana Year: 2010 Quarter 1 Total Obligation: $547,009,000
Entity to which the assist- ance is provided: MCA Ghana Total Quar- terly Disbursement: $33,331,317 Agriculture Project ...... 227,899,382 Enhance Profitability of 60,896,888 Number of farmers trained. cultivation, services to Number of agribusinesses assisted. agriculture and product Number of hectares under production with MCC handling in support of support. the expansion of com- mercial agriculture among groups of smallholder farms. Value of agricultural loans to farmers/agri- businesses. Value of signed contracts for feasibility and/or de- sign studies (irrigation). Percent of contracted (design/feasibility) studies complete (irrigation). Value of signed contracts for irrigation works (irriga- tion). Percent of contracted irrigation works disbursed. Percent of people aware of their land rights. Total number of parcels surveyed in the Pilot Land Registration Areas (PLRAs). Volume of products passing through post-harvest treatment. Rural Development Project 89,361,539 Strengthen the rural insti- 12,640,404 Number of students enrolled in schools affected by tutions that provide Education Facilities Sub-Activity. services complemen- Number of schools rehabilitated. tary to, and supportive Number of basic school blocks constructed to Min- of, agricultural and agri- istry of Education (MOE) construction standards. culture business devel- opment.
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Cumulative Projects Obligated Objective disbursements Measures
Number of schools designed and due diligence completed. Distance to collect water. Time to collect water. Incidence of guinea worm. Average number of days lost due to guinea worm. Number of people affected by Water and Sanitation Facilities Sub-Activity. Number of stand-alone boreholes/wells/non-conven- tional water systems constructed/rehabilitated. Number of small-town water systems constructed. Number of pipe extension projects constructed. Number of stand-alone boreholes/wells/non-conven- tional water systems identified and due diligence performed for rehabilitation/construction. Number of small-town water systems designed and due diligence completed for construction. Number of pipe extension projects designed and due diligence completed for construction. Number of agricultural processing plants in target districts with electricity due to Rural Electrification Sub-Activity. Number of electricity projects identified and due dili- gence completed. Transportation ...... 174,285,120 Reduce the transportation 29,089,944 International roughness index. costs affecting agri- Annualized average daily traffic. culture commerce at Kilometers of road completed. sub-regional levels. Percent of contracted road works disbursed. Value of signed contracts for road works. Kilometers of road designed. Percent of contracted design/feasibility studies com- pleted. Value of signed contracts for feasibility and/or de- sign studies. Travel time for walk-on passengers. Travel time for small vehicles. Travel time for trucks. Annual average daily traffic (vehicles). Annual average daily traffic (passengers). Landing stages rehabilitated. Ferry terminal upgraded. Rehabilitation of Akosombo Floating Dock com- pleted. Percent of contracted work disbursed landings and terminals. Value of signed contracts for works: ferry and float- ing dock. Value of signed contracts for works: landings and terminals. Program Administration*, 55,462,959 ...... 19,243,257 Due Diligence, Moni- toring and Evaluation. Pending subsequent ...... 1,327,602 reports**.
Cumulative Projects Obligated Objective disbursements Measures
Country: El Salvador Year: 2010 Quarter 1 Total Obligation: $460,940,000
Entity to which the assist- ance is provided: MCA El Salvador Total Quarterly Disburse- ment: $16,870,583 Human Development 94,963,736 Increase human and 11,720,541 Employment rate of graduates of middle technical Project. physical capital of resi- schools. dents of the Northern Graduation rates of middle technical schools. Zone to take advantage Middle technical schools remodeled and equipped. of employment and business opportunities.
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Cumulative Projects Obligated Objective disbursements Measures
Scholarships granted to students of middle technical schools. Students of non-formal training. Cost of water. Time collecting water. Households benefiting with water solutions built. Potable water and basic sanitation systems with construction contracts signed. Cost of electricity. Electricity consumption. Households benefiting with a connection to the elec- tricity network. Household benefiting with the installation of isolated solar systems. Kilometers of new electrical lines with construction contracts signed. Population benefiting from strategic infrastructure. Community Infrastructure Works with Construction Contracts Signed. Productive Development 87,850,853 Increase production and 20,015,147 Number of hectares under production with MCC Project. employment in the support. Northern Zone. Number of farmers trained. Value of agricultural loans to farmers/agri- businesses. Number of agribusinesses assisted. Connectivity Project ...... 233,389,335 Reduce travel cost and 22,054,330 Average annual daily traffic. time within the Northern International roughness index. Zone, with the rest of Kilometers of roads rehabilitated. the country, and within Kilometers of roads under works contract. the region. Signed contracts for roads works. Percent of contracted roads works disbursed. Program Administration* 44,736,076 ...... 12,356,366 and Control, Monitoring and Evaluation. Pending Subsequent ...... 0 Report**.
Cumulative Projects Obligated Objective disbursements Measures
Country: Mali Year: 2010 Quarter 1 Total Obligation: $460,811,164
Entity to which the assist- ance is provided: MCA Mali Total Quarterly Disbursement: $14,221,585 Bamako Se´nou Airport Im- 181,254,264 Establish an independent 9,140,789 Total wage bill of tourism industry. provement Project. and secure link to the Freight volume. regional and global Employment at airport. economy. Signature of design contract. Average number of weekly flights (arrivals). Passenger traffic (annual average). Percent works complete. Airside Infrastructure Design, and Airside Infrastruc- ture Construction Supervision, (AIR A01) and Landside Infrastructure Design (New Terminal & Associated Works) and Landside Construction Supervision is launched. Time required for passenger processing at depar- tures and arrivals. Passenger satisfaction level. Percent works complete. Percent of airport management and maintenance plan implemented. Airport meets Federal Aviation Administration (FAA) and International Civil Aviation Organization (ICAO) security standards. Technical assistance delivered to project.
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Cumulative Projects Obligated Objective disbursements Measures
Alatona Irrigation Project .. 234,884,675 Increase the agricultural 32,430,172 Number of agricultural jobs created in Alatona zone. production and produc- Main season rice yields. tivity in the Alatona International roughness index (IRI) on the Niono- zone of the ON. Goma Coura Route. Average daily vehicle count. Percentage works complete. Total irrigated land in the Alatona zone. Irrigation system efficiency on Alatona Canal during the rainy season and the dry season. Kilometers of road under design/feasibility study. Value of signed contracts for road works. Kilometers of road under works contract. Percent of works completed on main system con- struction. Percent of contracted irrigation works disbursed for tranche 1. Value of signed contracts for irrigation works. Value of signed contracts for feasibility and/or de- sign studies. Percent of contracted (design/feasibility) studies dis- bursed. Area planted by new settlers (wet season). Titles registered in the land registration office of the Alatona zone (for 5- or 10-hectare farms). Total land payments made. Total market gardens allocated in Alatona zones for the populations affected by the project (PAPs). Decree transferring legal control of the project im- pact area is passed. Selection criteria for new settlers approved. Contractor implementing the ‘‘Mapping of Agricul- tural and Communal Land Parcels’’ contract is mobilized. School enrollment rate. Percent of Alatona population with access to drink- ing water. Number of schools available in the Alatona. Number of health centers available in the Alatona. Number of concessions that have been com- pensated. Resettlement census verified. Adoption rate of improved agriculture techniques among populations affected by the project (PAPs). Number of operational mixed cooperatives. Area planted by PAPs (wet season rice). Area planted with shallots during dry season. Number of farmers completing literacy training. Number of people completing the rice and shallot production techniques module. Number of farmers completing land titling training. Water management system design and capacity building strategy implemented. Call for proposals for the applied research grants launched. Average portfolio at risk among Alatona micro- finance institutions. Average loan repayment rate of Alatona clients (farmers organizations or individual farmers). Amount of credit extended to Alatona farmers. Number of farmers accessing grant assistance for first loan from financial institutions. Financial institution partners identified (report on as- sessment of the financial institutions in the Office du Niger—Office of Niger zone (ON zone). Industrial Park Project ...... 2,643,432 Develop a platform for in- 2,637,472 Occupancy level. dustrial activity to be lo- Average number of days required for operator to cated within the Airport connect to Industrial Park water and electricity domain. services. Program Administration* 42,028,793 ...... 16,370,427 and Control, Monitoring and Evaluation.
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Cumulative Projects Obligated Objective disbursements Measures
Pending Subsequent ...... 0 Report**.
Cumulative Projects Obligated Objective disbursements Measures
Country: Mongolia Year: 2010 Quarter 1 Total Obligation: $284,902,443
Entity to which the assist- ance is provided: MCA Mongolia Total Quarterly Disburse- ment: $1,895,217 Property Rights Project ..... 22,910,728 Increase security and 824,383 Number of studies completed. capitalization of land Legal and regulatory reforms adopted. assets held by lower-in- Number of landholders reached by public outreach come Mongolians, and efforts. increased peri-urban herder productivity and incomes. Personnel Trained. Number of Buildings rehabilitated/constructed. Value of equipment purchased. Rural hectares Mapped. Urban Parcels Mapped. Rural Hectares Formalized. Urban parcels formalized. Rail Project ...... 188,378,000 Increase rail traffic and 369,560 Increase in gross domestic product due to rail im- shipping efficiency. provements. Freight turnover. Mine traffic. Percent of wagons leased by private firms. Railway operating ratio. Customer satisfaction. Wagon time to destination. Average locomotive availability. Vocational Education 25,492,856 Increase employment and 903,534 Rate of employment. Project. income among unem- Students completing newly designed long-term pro- ployed and under- grams. employed Mongolians. Percent of active teachers receiving certification training. Technical and vocational education and training (TVET) legislation passed. Health Project ...... 16,969,757 Increase the adoption of 1,149,233 Diabetes and hypertension controlled. behaviors that reduce Percentage of cancer cases diagnosed in early non-communicable dis- stages. eases (NCDIs) among Road and traffic safety activity finalized and key target populations and interventions developed. improved medical treat- ment and control of NCDIs. Program Administration* 31,151,102 ...... 6,277,475 and Control, Monitoring and Evaluation. Pending subsequent ...... 265,000 reports**.
In late 2009, the MCC’s Board of Directors approved the allocation of a portion of the funds originally designated for the rail project to the ex- pansion of the health, vocational education and property right projects from the rail project, and the remaining portion to the addition of a road project.
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Cumulative Projects Obligated Objective disbursements Measures
Country: Mozambique Year: 2010 Quarter 1 Total Obligation: $506,924,053
Entity to which the assist- ance is provided: MCA Mozambique Total Quarterly Disburse- ment: $4,542,157 Water and Sanitation 203,585,393 Increase access to reli- 2,041,490 Time to get to non-private water source. Project. able and quality water Percent of urban population with improved water and sanitation facilities. sources. Percent of urban population with improved sanita- tion facilities. Number of private household water connections in urban areas. Number of private household sanitation connections in urban areas. Number of standpipes in urban areas. Final detailed design for 5 towns submitted. Final detailed design for 3 cities submitted. Percent of rural population with access to improved water sources. Number of rural water points constructed. Final design report 1 (400 WP) submitted. Final design report II (200 Water points) submitted. Implementing agreement signed with the Adminis- tration for Water and Sanitation (AIAS) Infrastruc- ture. Change in international roughness index (IRI). Average annual daily traffic volume. Road Rehabilitation Project 176,307,480 Increase access to pro- 715,163 Kilometers of road rehabilitated. ductive resources and Kilometers of road under design. markets. Percent of Namialo—Rio Lu´rio Road—Metoro feasi- bility, design, and supervision contract disbursed. Percent of Rio LigonhalNampula feasibility, de- sign, and supervision contract disbursed. Percent of ChimuaralNicoadala feasibility, design, and supervision contract disbursed. Kilometers of roads under works contract. Percent of Namialo—Rio Lu´rio Road construction contract disbursed. Percent of Rio Lu´rio—Metoro Road construction contract disbursed. Percent of Rio Ligonha—Nampula Road construc- tion contract disbursed. Percent of ChimuaralNicoadala Road construction contract disbursed. Feasibility/Environmental and Social Assessment studies, design, supervision, and construction contract (ESA) for NamialolRio Lu´rio-Metoro Road segment signed. Feasibility/ESA contract for Rio LigonhalNampula Road segment signed. Feasibility/ESA contract for Chimuara—Nicoadala Road signed. Time to get land usage rights direito de uso e aproveitamento da terra (state-granted land right) (DUAT). Cost to get land usage rights DUAT. Land Tenure Services 39,068,307 Establish efficient, secure 2,182,331 Total number of officials and residents reached with Project. land access for house- land strategy and policy awareness and outreach holds and investors. messages. Land strategy approved. Number of buildings rehabilitated or built. Total value of procured equipment and materials. Number of people trained. Rural hectares mapped in Site Specific Activity. Rural hectares mapped in Community Land Fund Initiative. Urban parcels mapped. Rural hectares formalized through Site Specific Ac- tivity. Rural hectares formalized through Community Land Fund Initiative.
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Cumulative Projects Obligated Objective disbursements Measures
Urban parcels formalized. Number of communities delimited. Number of households having land formalized. Income from coconuts and coconut products. Survival rate of coconut seedling. Farmer Income Support 18,400,117 Improve coconut produc- 1,267,243 Number of diseased or dead palm trees cleared. Project. tivity and diversification Number of coconut seedlings planted. into cash crop. Hectares under production. Number of farmers trained in pest and disease con- trol. Number of farmers trained in crop diversification technologies. Contract for project implementation signed. Program Administration* 69,562,756 ...... 9,116,105 and Control, Monitoring and Evaluation. Pending Subsequent ...... 806,906 Report**. Cumulative Projects Obligated Objective disbursements Measures
Country: Lesotho Year: 2010 Quarter 1 Total Obligation: $362,514,382
Entity to which the assist- ance is provided: MCA Lesotho Total Quar- terly Disbursement: $3,674,696 Water Project ...... 164,027,999 Improve the water supply 5,470,756 School days lost due to water borne diseases. for industrial and do- Diarrhea notification at health centers. mestic needs, and en- Time saved due to access to water source. hance rural livelihoods Rural household (HH) provided with access to im- through improved wa- proved water supply. tershed management. Rural HH provided with access to improved venti- lated latrines. Rural water points constructed. Number of new latrines built. Urban HH with access to potable water supply. Number of enterprises connected to water network. Households connected to improved water network. Cubic meters of treated water from metolong dam delivered through a conveyance system to Water and Sewerage Authority (WASA). Value of water treatment contract works award. Value of conveyance system contract work award. Species population. Livestock grazing per area. Area put under conservation. Health Project ...... 122,398,000 Increase access to life-ex- 3,194,630 People with HIV still alive 12 months after initiation tending ART and es- of treatment. sential health services TB notification (per 100,000 pop.). by providing a sustain- Proportion of blood units collected annually. able delivery platform.. Deliveries conducted in the health centers. Immunization coverage rate. Number of Health Centers (H/C) constructed and fully equipped. Value of contract works for health center construc- tion. Percentage of contract works for health center con- struction disbursed. Percentage of contract works for Botshalo Complex disbursed. Percentage of contract works for Out-Patient De- partment (OPD) Centers disbursed. Percentage of HSS Contract disbursed. Proportion of People Living With AIDS(PLWA) re- ceiving Antiretroviral treatment (ARV) (by age and sex). Referred tests from central laboratory per year by types (number).
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Cumulative Projects Obligated Objective disbursements Measures
Private Sector Develop- 36,470,318 Stimulate investment by 1,961,646 Average time (days) required to enforce a contract. ment Project. improving access to Pending commercial cases. credit, reducing trans- Cases filed at the commercial court. action costs and in- creasing the participa- tion of women in the economy. Value of commercial cases. Judicial staff trained. Administrative and clerical staff trained. Awareness campaigns. Portfolio of loans. Loan processing time. Bank accounts. Paper-based payments. Electronic payments. Value of contract services signed. Debit/smart cards issued. Mortgage bonds registered. Value of registered mortgage bonds. New land disputes brought to the Land Tribunal and Courts of Law. Time to complete a land transaction. Time to complete transfer of land rights. Land transactions recorded. Land parcels formalized. Number of land administration personnel trained. Land Act adopted. People trained on gender equality and economic rights. ID cards issued. Population registered in the national database. Program Administration* 39,654,682 ...... 10,222,540 and Control, Monitoring and Evaluation. Pending Subsequent ...... ¥23,881 Report**. Cumulative Projects Obligated Objective disbursements Measures
Country: Morocco Year: 2010 Quarter 1 Total Obligation: $697,500,000
Entity to which the assist- ance is provided: MCA Lesotho Total Quar- terly Disbursement: $12,789,002 Fruit Tree Productivity ...... 300,898,445 Reduce volatility of agri- 9,663,592 Total annual volume of production of dates and ol- cultural production and ives. increase volume of fruit Cropped area covered by olive trees. agricultural production. Survival rate of newly planted olive trees after 2 years project-supported establishment period. Yield of rehabilitated olive trees. Cropped area covered by date trees. Yield of rehabilitated date palms. Small Scale Fisheries ...... 116,168,027 Improve quality of fish 1,155,138 State of fish stock. moving through domes- Domestic fish consumption level. tic channels and assure Fisherman net revenue. the sustainable use of fishing resources. Average fisherman sales price at Points de De´barquement Ame´nage´s (PDA). Volume sold at wholesale markets. Fish sale price. Average sales price. Volume of sales among mobile fish vendors. Artisan and Fez Medina .... 111,873,858 Increase value added to 384,852 Average revenue of potters receiving Artisan Pro- tourism and artisan duction Activity. sectors. Employment and wages among project graduates. Tourist arrivals. Artisan profits (artisans engaged in product finishing and points of sale).
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Cumulative Projects Obligated Objective disbursements Measures
Employment created. Small and Medium Enterprises (SME) value added. Financial Services ...... 46,200,000 Increase supply and de- 12,937,907 Gross loan portfolio outstanding of microcredit asso- crease costs of finan- ciations. cial services available Portfolio at risk >30 days ratio. to microenterprises. Operating expense ratio. Enterprise Support ...... 33,850,000 Improved survival rate of 1.352,603 Average annual sales of participating businesses. new SMEs and INDH- Survival rate of participating businesses. funded income gener- ating activities; in- creased revenue for new SMEs and INDH- funded income gener- ating activities. Program Administration* 88,511,670 ...... 9,320,527 and Control, Monitoring and Evaluation. Pending Subsequent ...... 173,509 Report**.
Cumulative Projects Obligated Objective disbursements Measures
Country: Tanzania Year: 2010 Quarter 1 Total Obligation: $698,136,000
Entity to which the assist- ance is provided: MCA Tanzania Total Quarterly Disburse- ment: $3,161,608 Energy Sector ...... 206,471,000 Increase value added to 2,952,318 New power customers. businesses. Energy generation—Kigoma. Transmission capacity. Percentage disbursed for design and supervision contract Consulting Engineer (CE) year 1 budg- eted. Transport Sector ...... 372,776,000 Increase cash crop rev- 3,034,852 International roughness index (Tunduma, Tanga, enue and aggregate Nantumbo, Peramiho). visitor spending. Average annual daily traffic (Tunduma, Tanga, Nantumbo, Peramiho). Kilometers upgraded/completed (Tunduma, Tanga, Nantumbo, Peramiho). Percent disbursed on construction works (Tunduma, Tanga, Nantumbo, Peramiho). Signed contracts for construction works (Tunduma, Tanga, Nantumbo, Peramiho). Percent disbursed for feasibility and/or design stud- ies (Tunduma, Tanga, Nantumbo, Peramiho). Signed contracts for feasibility and/or design studies (Tunduma, Tanga, Nantumbo, Peramiho). Kilometers of roads under design (Tunduma, Tanga, Nantumbo, Peramiho). International roughness index (Zanzibar Rural Roads). Average annual daily traffic (Zanzibar Rural Roads). Kilometers upgraded/completed (Zanzibar Rural Roads). Percent disbursed on construction works (Zanzibar Rural Roads). Signed contracts for construction works (Zanzibar Rural Roads). Percent disbursed for feasibility and/or design stud- ies (Zanzibar Rural Roads). Signed contracts for feasibility and/or design studies (Zanzibar Rural Roads). Kilometers of roads under design (Zanzibar Rural Roads). Passenger arrivals. Percentage of upgrade complete (airport). Percent disbursed on construction works (airport). Signed contracts for construction works (airport).
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Cumulative Projects Obligated Objective disbursements Measures
Water Sector Project ...... 66,335,000 Increase investment in 1,095,219 Prevalence of diarrhea (Dar es Salaam). human and physical Prevalence of diarrhea (Morogoro). capital and to reduce Prevalence of cholera (Dar es Salaam). the prevalence of water-related disease. Prevalence of cholera (Morogoro). Volume of individual water consumption (Dar es Sa- laam). Volume of individual water consumption (Morogoro). Number of households using improved source for drinking water (Dar es Salaam). Number of households using improved source for drinking water (Morogoro). Number of businesses using improved water source (Dar es Salaam). Number of businesses using improved water source (Morogoro). Volume of water produced (Lower Ruvu). Volume of water produced (Morogoro). Volume of non-revenue water (Dar es Salaam). Operations and maintenance cost recovery ratio (Dar es Salaam). Operations and maintenance cost recovery ratio (Morogoro). Percent disbursed on construction works. Signed contracts for construction works. Program Administration* 52,554,000 ...... 3,788,306 and Control, Monitoring and Evaluation. Pending Subsequent ...... 206,197 Report**.
Cumulative Projects Obligated Objective disbursements Measures
Country: Burkina Faso Year: 2010 Quarter 1 Total Obligation: $478,943,569
Entity to which the assist- ance is provided: MCA Burkina Faso Total Quarterly Disburse- ment: $2,397,440 Roads Project ...... 194,130,681 Enhance access to mar- 14,871 To Be Determined (TBD). kets through invest- ments in the road net- work. Rural Land Governance 59,934,614 Increase investment in 465,530 TBD. Project. land and rural produc- tivity through improved land tenure security and land management. Agriculture Development 141,910,059 Expand the productive 17,851 TBD. Project. use of land in order to increase the volume and value of agricultural production in project zones. Bright 2 Schools Project ... 26,829,669 Increase primary school 26,829,669 TBD. completion rates. Program Administration* 56,138,546 ...... 6,824,723 and Control, Monitoring and Evaluation. Pending Subsequent ...... 65,145 Report**.
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Cumulative Projects Obligated Objective disbursements Measures
Country: Namibia Year: 2010 Quarter 1 Total Obligation: $304,477,817
Entity to which the assist- ance is provided: MCA Namibia Total Quarterly Disburse- ment: $2,455,717 Education Project ...... 144,976,559 Improve the education 338,267 To Be Determined (TBD). sector’s effectiveness, efficiency and quality. Tourism Project ...... 66,959,291 Increase incomes and 78,360 TBD. create employment op- portunities by improving the marketing, manage- ment and infrastructure of Etosha National Park. Agriculture Project ...... 46,965,320 Sustainably improve the 32,554 TBD. economic performance and profitability of the livestock sector and in- crease the volume of the indigenous natural products for export. Program Administration* 45,576,647 ...... 4,045,476 and Control, Monitoring and Evaluation. Pending Subsequent ...... 0 Report**.
* Program administration funds are used to pay items such as salaries, rent, and the cost of office equipment. ** These amounts represent disbursements made that will be allocated to individual projects in the subsequent quarter(s) and reported as such in subsequent quarterly report(s) 619(b) Transfer or Allocation of Funds U.S. Agency to which Funds were Transferred or Allocated Amount Description of program or project
None $0 None
Dated: April 6, 2010. National Endowment for the Chairman’s Delegation of Authority to Charles Cooper, Humanities, Washington, DC 20506; Close Advisory Committee meetings, Vice President, Congressional and Public telephone (202) 606–8322. Hearing- dated July 19, 1993, I have determined Affairs, Millennium Challenge Corporation. impaired individuals are advised that that these meetings will be closed to the [FR Doc. 2010–8314 Filed 4–12–10; 8:45 am] information on this matter may be public pursuant to subsections (c)(4), BILLING CODE 9211–03–P obtained by contacting the and (6) of section 552b of Title 5, United Endowment’s TDD terminal on (202) States Code. 606–8282. 1. Date: May 3, 2010. Time: 8:30 a.m. to 5 p.m. NATIONAL FOUNDATION ON THE SUPPLEMENTARY INFORMATION: The ARTS AND THE HUMANITIES Room: 315. proposed meetings are for the purpose Program: This meeting will review Meetings of Humanities Panel of panel review, discussion, evaluation applications for Landmarks of American and recommendation on applications History and Culture, submitted to the AGENCY: The National Endowment for for financial assistance under the Division of Education Programs at the the Humanities. National Foundation on the Arts and the March 2, 2010 deadline. ACTION: Notice of Meetings. Humanities Act of 1965, as amended, 2. Date: May 4, 2010. including discussion of information Time: 8:30 a.m. to 5 p.m. SUMMARY: Pursuant to the provisions of given in confidence to the agency by the Room: 315. the Federal Advisory Committee Act grant applicants. Because the proposed Program: This meeting will review (Pub. L. 92–463, as amended), notice is meetings will consider information that applications for Landmarks of American hereby given that the following is likely to disclose trade secrets and History and Culture, submitted to the meetings of Humanities Panels will be commercial or financial information Division of Education Programs at the held at the Old Post Office, 1100 obtained from a person and privileged March 2, 2010 deadline. Pennsylvania Avenue, NW., or confidential and/or information of a 3. Date: May 5, 2010. Washington, DC 20506. personal nature the disclosure of which Time: 8:30 a.m. to 5 p.m. FOR FURTHER INFORMATION CONTACT: would constitute a clearly unwarranted Room: 315. Michael P. McDonald, Advisory invasion of personal privacy, pursuant Program: This meeting will review Committee Management Officer, to authority granted me by the applications for Landmarks of American
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History and Culture, submitted to the Week of April 19, 2010—Tentative reasonable accommodation will be Division of Education Programs at the made on a case-by-case basis. There are no meetings scheduled for March 2, 2010 deadline. the week of April 19, 2010. * * * * * 4. Date: May 6, 2010. This notice is distributed Time: 8:30 a.m. to 5 p.m. Week of April 26, 2010—Tentative electronically to subscribers. If you no Room: 315. Thursday, April 29, 2010 longer wish to receive it, or would like Program: This meeting will review to be added to the distribution, please applications for Landmarks of American 9:30 a.m. Briefing on the Fuel Cycle contact the Office of the Secretary, History and Culture, submitted to the Oversight Process Revisions (Public Washington, DC 20555 (301–415–1969), Division of Education Programs at the Meeting). (Contact: Michael or send an e-mail to March 2, 2010 deadline. Raddatz, 301–492–3108.) [email protected]. 5. Date: May 25, 2010. Time: 9 a.m. to 5 p.m. This meeting will be webcast live at Dated: April 8, 2010. Room: 402 the Web address—http://www.nrc.gov. Rochelle C. Bavol, Program: This meeting will review Week of May 3, 2010—Tentative Office of the Secretary. applications for Digital Humanities [FR Doc. 2010–8507 Filed 4–9–10; 4:15 pm] Tuesday, May 4, 2010 Start-Up Grants, submitted to the Office BILLING CODE 7590–01–P of Digital Humanities at the March 23, 9:30 a.m. Briefing on Human Capital 2010 deadline. and Equal Employment 6. Date: May 26, 2010. Opportunity (Public Meeting). NUCLEAR REGULATORY Time: 9 a.m. to 5 p.m. (Contact: Kristin Davis, 301–415– COMMISSION Room: 402. 2673.) [NRC–2010–0150] Program: This meeting will review This meeting will be webcast live at applications for Digital Humanities Notice of Opportunity for Public the Web address—http://www.nrc.gov. Start-Up Grants, submitted to the Office Comment on the Proposed Model of Digital Humanities at the March 23, Week of May 10, 2010—Tentative Safety Evaluation for Plant-Specific 2010 deadline. Adoption of Technical Specifications Tuesday, May 11, 2010 7. Date: May 27, 2010. Task Force Traveler TSTF–514, Time: 9 a.m. to 5 p.m. 9:30 a.m. Briefing on Federal and State Revision 1, ‘‘Revise BWR Operability Room: 402. Materials and Environmental Requirements and Actions for RCS Program: This meeting will review Management Programs (FSME) Leakage Instrumentation’’ applications for Digital Humanities Programs, Performance, & Future AGENCY: Start-Up Grants, submitted to the Office Plans (Public Meeting). (Contact: Nuclear Regulatory of Digital Humanities at the March 23, George Deegan, 301–415–7834.) Commission (NRC). 2010 deadline. ACTION: Notice of opportunity for public This meeting will be webcast live at comment. Michael P. McDonald, the Web address—http://www.nrc.gov. SUMMARY: The NRC is requesting public Advisory Committee, Management Officer. Week of May 17, 2010—Tentative [FR Doc. 2010–8435 Filed 4–12–10; 8:45 am] comment on the enclosed proposed BILLING CODE 7536–01–P There are no meetings scheduled for model application (with model no the week of May 17, 2010. significant hazards consideration * * * * * determination) and model safety NUCLEAR REGULATORY *The schedule for Commission evaluation (SE) for plant-specific COMMISSION meetings is subject to change on short adoption of Technical Specifications notice. To verify the status of meetings, Task Force (TSTF) Traveler TSTF–514, Sunshine Federal Register Notice call (recording)—(301) 415–1292. Revision 1, ‘‘Revise BWR [boiling water Contact person for more information: reactor] Operability Requirements and AGENCY HOLDING THE MEETINGS: Nuclear Rochelle Bavol, (301) 415–1651. Actions for RCS [reactor coolant system] Regulatory Commission [NRC–2010– Leakage Instrumentation.’’ TSTF–514, * * * * * 0002] Revision 1, is available in the The NRC Commission Meeting DATE: Weeks of April 12, 19, 26, May Agencywide Documents Access and 3, 10, 17, 2010. Schedule can be found on the Internet Management System (ADAMS) under at: http://www.nrc.gov/about-nrc/policy- PLACE: Accession Number ML092510374. The Commissioners’ Conference making/schedule.html Room, 11555 Rockville Pike, Rockville, proposed changes revise the Standard Maryland. * * * * * Technical Specifications (STS) to define The NRC provides reasonable a new time limit for restoring inoperable STATUS: Public and closed. accommodation to individuals with RCS leakage detection instrumentation Week of April 12, 2010 disabilities where appropriate. If you to operable status and establish alternate Thursday, April 15, 2010 need a reasonable accommodation to methods of monitoring RCS leakage participate in these public meetings, or when one or more required monitors are 9:30 a.m. Briefing on Resolution of need this meeting notice or the inoperable. TS Bases changes that Generic Safety Issue (GSI)–191, transcript or other information from the reflect the proposed changes and more Assessment of Debris Accumulation public meetings in another format (e.g. accurately reflect the contents of the on Pressurized Water Reactor braille, large print), please notify Angela facility design bases related to the (PWR) Sump Performance (Public Bolduc, Chief, Employee/Labor operability of the RCS leakage detection Meeting). (Contact: Michael Scott, Relations and Work Life Branch, at 301– instrumentation are included. The 301–415–0565.) 492–2230, TDD: 301–415–2100, or by e- model SE will facilitate expedited This meeting will be webcast live at mail at [email protected]. approval of plant-specific adoption of the Web address—http://www.nrc.gov. Determinations on requests for TSTF–514, Revision 1. This TS
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improvement is part of the consolidated problems in accessing the documents than those proposed in TSTF–514, line item improvement process (CLIIP). located in ADAMS, contact the NRC’s Revision 1. However, significant DATES: Comment period expires on May PDR reference staff at 1–800–397–4209, deviations from the approach 13, 2010. Comments received after this 301–415–4737, or by e-mail to recommended in this notice or the date will be considered, if it is practical [email protected]. The proposed inclusion of additional changes to the to do so, but the Commission is able to models for plant-specific adoption of license require additional NRC staff ensure consideration only for comments TSTF–514, Revision 1, are available review. This may increase the time and received on or before this date. electronically under ADAMS Accession resources needed for the review or ADDRESSES: You may submit comments Number ML093340364. result in NRC staff rejection of the LAR. by any one of the following methods. Federal Rulemaking Web site: Public Licensees desiring significant deviations Please include Docket ID NRC–2010– comments and supporting materials or additional changes should instead 0150 in the subject line of your related to this notice can be found at submit an LAR that does not claim to comments. Comments submitted in http://www.regulations.gov by searching adopt TSTF–514, Revision 1. writing or in electronic form will be on Docket ID: NRC–2010–0150. Dated at Rockville, Maryland, this 5th day posted on the NRC website and on the FOR FURTHER INFORMATION CONTACT: Ms. of April 2010. Federal rulemaking Web site Michelle C. Honcharik, Senior Project For the Nuclear Regulatory Commission. Regulations.gov. Because your Manager, Licensing Processes Branch, Eric E. Bowman, comments will not be edited to remove Mail Stop: O–12 D1, Division of Policy Acting Chief, Licensing Processes Branch, any identifying or contact information, and Rulemaking, Office of Nuclear Division of Policy and Rulemaking, Office the NRC cautions you against including Reactor Regulation, U.S. Nuclear of Nuclear Reactor Regulation. any information in your submission that Regulatory Commission, Washington, [FR Doc. 2010–8384 Filed 4–12–10; 8:45 am] you do not want to be publicly DC, 20555–0001; telephone 301–415– BILLING CODE 7590–01–P disclosed. 1774 or e-mail at The NRC requests that any party [email protected]. soliciting or aggregating comments SUPPLEMENTARY INFORMATION: TSTF– SECURITIES AND EXCHANGE received from other persons for 514, Revision 1, is applicable to BWR COMMISSION submission to the NRC inform those plants. The proposed changes revise the [Release No. IC–29205; File No. 812–13703] persons that the NRC will not edit their STS to define a new time limit for comments to remove any identifying or restoring inoperable RCS leakage Jackson National Life Insurance contact information, and therefore, they detection instrumentation to operable Company, et al. should not include any information in status and establish alternate methods of their comments that they do not want monitoring RCS leakage when one or April 7, 2010. publicly disclosed. more required monitors are inoperable. AGENCY: The Securities and Exchange Federal Rulemaking Web site: Go to TS Bases changes that reflect the Commission (‘‘Commission’’). http://www.regulations.gov and search proposed changes and more accurately ACTION: Notice of application for an for documents filed under Docket ID reflect the contents of the facility design order under Section 6(c) of the NRC–2010–0150. Address questions bases related to the operability of the Investment Company Act of 1940 (the about NRC dockets to Carol Gallagher RCS leakage detection instrumentation ‘‘Act’’) granting exemptions from the 301–492–3668; e-mail are included. provisions of Sections 2(a)(32), 22(c) [email protected]. This notice provides an opportunity and 27(i)(2)(A) of the Act and Rule 22c– Mail comments to: Michael T. Lesar, for the public to comment on proposed 1 thereunder to permit the recapture of Chief, Rulemaking, Announcements and changes to the STS after a preliminary contract enhancements applied to Directives Branch (RADB), Division of assessment and finding by the NRC staff purchase payments made under certain Administrative Services, Office of that the agency will likely offer the deferred variable annuity contracts. Administration, Mail Stop: TWB–05– changes for adoption by licensees. This B01M, U.S. Nuclear Regulatory notice solicits comment on proposed APPLICANTS: Jackson National Life Commission, Washington, DC 20555– changes to the STS, which if Insurance Company (‘‘Jackson 0001, or by fax to RDB at 301–492–3446. implemented by a licensee will modify National’’), Jackson National Separate You can access publicly available the plant-specific TS. The NRC staff will Account—I (the ‘‘JNL Separate documents related to this notice using evaluate any comments received for the Account’’), Jackson National Life the following methods: proposed changes and reconsider the Insurance Company of New York (‘‘JNL NRC’s Public Document Room (PDR): changes or announce the availability of New York’’ and collectively with The public may examine and have the changes for adoption by licensees as Jackson National, the ‘‘Insurance copied for a fee publicly available part of the CLIIP. Licensees opting to Companies,’’ and individually as made documents at the NRC’s PDR, Room O1 apply for this TS change are responsible appropriate by the context, an F21, One White Flint North, 11555 for reviewing the NRC staff’s SE, and the ‘‘Insurance Company’’), JNLNY Separate Rockville Pike, Rockville, Maryland. applicable technical justifications, Account I (the ‘‘JNLNY Separate NRC’s Agencywide Documents Access providing any necessary plant-specific Account,’’ collectively with the JNL and Management System (ADAMS): information, and assessing the Separate Account, the ‘‘Separate Publicly available documents created or completeness and accuracy of their Accounts,’’ and individually as made received at the NRC are available license amendment request (LAR). The appropriate by the context, a ‘‘Separate electronically at the NRC’s Electronic NRC will process each amendment Account’’) and Jackson National Life Reading Room at http://www.nrc.gov/ application responding to the notice of Distributors LLC (‘‘Distributor,’’ and reading-rm/adams.html. From this page, availability according to applicable NRC collectively with the Insurance the public can gain entry into ADAMS, rules and procedures. Companies and the Separate Accounts, which provides text and image files of The proposed changes do not prevent ‘‘Applicants’’). NRC’s public documents. If you do not licensees from requesting an alternate SUMMARY OF APPLICATION: Applicants have access to ADAMS or if there are approach or proposing changes other seek an order under Section 6(c) of the
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Act to exempt certain transactions from Branch Chief, at (202) 551–6795, Office serves as the distributor of the the provisions of Sections 2(a)(32), of Insurance Products, Division of Contracts. The Distributor is registered 22(c), and 27(i)(2)(A) of the Act and Investment Management. with the Commission as a broker-dealer Rule 22c–1 thereunder, to the extent SUPPLEMENTARY INFORMATION: The under the Securities Exchange Act of necessary to permit the recapture, under following is a summary of the 1934 (the ‘‘1934 Act’’) and is a member specified circumstances, of certain Application. The complete Application of FINRA. The Distributor enters into contract enhancements applied to may be obtained via the Commission’s selling group agreements with affiliated purchase payments made under the Web site by searching for the file and unaffiliated broker-dealers. The deferred variable annuity contracts number, or an applicant using the Contracts are sold by licensed insurance described herein that Jackson National Company name box at http:// agents, where the Contracts may be has issued and will issue through the www.sec.gov/search/search.htm or by lawfully sold, who are registered JNL Separate Account (the ‘‘JNL calling (202) 551–8090. representatives of broker-dealers that are Contracts’’) and that JNL New York has registered under the 1934 Act and are issued and will issue through the Applicants’ Representations members of FINRA. JNLNY Separate Account (the ‘‘JNLNY 1. Jackson National is a stock life 5. The Contracts require a minimum Contracts,’’ and collectively with the insurance company organized under the initial premium payment of $5,000 or JNL Contracts, the ‘‘Contracts’’) as well laws of the state of Michigan in June $10,000 under most circumstances as other contracts that the Insurance 1961. Its legal domicile and principal depending on the contract ($2,000 for a Companies may issue in the future business address is 1 Corporate Way, qualified plan contract). Subsequent through their existing or future separate Lansing, Michigan 48951. Jackson payments may be made at any time accounts (‘‘Other Accounts’’) that are National is admitted to conduct life during the accumulation phase but substantially similar in all material insurance and annuity business in the before the contract anniversary after the respects to the Contracts (‘‘Future District of Columbia and all states owner’s 85th birthday. Each subsequent Contracts’’). Applicants also request that except New York. Jackson National is payment must be at least $500 ($50 the order being sought extend to any ultimately a wholly owned subsidiary of under an automatic payment plan). other Financial Industry Regulatory Prudential plc (London, England). Prior approval of the relevant Insurance Authority (‘‘FINRA’’) member broker- 2. JNL New York is a stock life Company is required for aggregate dealer controlling or controlled by, or insurance company organized under the premium payments of over $1,000,000. under common control with, Jackson laws of the state of New York in July 6. The Contracts permit owners to National, whether existing or created in 1995. Its legal domicile and principal accumulate contract values on a fixed the future, that serves as distributor or address is 2900 Westchester Avenue, basis through allocations to one of six principal underwriter for the Contracts Purchase, New York 10577. JNL New fixed accounts (the ‘‘Fixed Accounts’’). or Future Contracts (‘‘Affiliated Broker- York is admitted to conduct life In addition, if the optional LifeGuard Dealers’’) and any successors in interest insurance and annuity business in Select Guaranteed Minimum to the Applicants. Delaware, Michigan, and New York. JNL Withdrawal Benefit (‘‘GMWB’’) or the FILING DATE: The application was filed New York is ultimately a wholly owned optional LifeGuard Select with Joint on September 24, 2009, and amended subsidiary of Prudential plc (London, Option Guaranteed Minimum on October 16, 2009; January 8, 2010; England). Withdrawal Benefit (‘‘GMWB’’) is February 24, 2010; and March 29, 2010. 3. The JNL Separate Account was elected in the JNL Contracts, automatic established by Jackson National on June transfers of an owner’s contract value HEARING OR NOTIFICATION OF HEARING: An 14, 1993, pursuant to the provisions of may be allocated to a fixed account order granting the application will be Michigan law and the authority granted designated for these guaranteed issued unless the Commission orders a under a resolution of Jackson National’s minimum withdrawal benefits (‘‘GMWB hearing. Interested persons may request Board of Directors. The JNLNY Separate Fixed Account’’). a hearing by writing to the Secretary of Account was established by JNL New 7. The Contracts also permit owners the Commission and serving Applicants York on September 12, 1997, pursuant to accumulate contract values on a with a copy of the request, personally or to the provisions of New York law and variable basis, through allocations to by mail. Hearing requests should be the authority granted under a resolution one or more of the sub-accounts, also received by the Commission by 5:30 of JNL New York’s Board of Directors. referred to as investment divisions, of p.m. on April 29, 2010, and should be Jackson National and JNL New York are the Separate Accounts (the ‘‘Investment accompanied by proof of service on the depositors of their respective Divisions,’’ collectively with the Fixed Applicants, in the form of an affidavit Separate Accounts. Each of the Separate Account and the GMWB Fixed Account, or, for lawyers, a certificate of service. Accounts meets the definition of a the ‘‘Allocation Options’’). Under most Hearing requests should state the nature ‘‘separate account’’ under the federal Contracts, 98 Investment Divisions of the writer’s interest, the reason for the securities laws and each is registered currently are expected to be offered request, and the issues contested. with the Commission as a unit through the Separate Accounts but Persons may request notification of a investment trust under the Act (File additional Investment Divisions may be hearing by writing to the Secretary of Nos. 811–8664 and 811–8401, offered in the future and some could be the Commission. respectively). JNL Separate Account and eliminated or combined with other ADDRESSES: Secretary, Securities and JNLNY Separate Account will fund, Investment Divisions in the future. Exchange Commission, 100 F Street, respectively, the variable benefits Similarly, Future Contracts may offer NE., Washington, DC 20549–1090. available under the JNL Contracts and additional or different Investment Applicants: c/o Jackson National Life the JNLNY Contracts. The registration Divisions. Each Investment Division Insurance Company, 1 Corporate Way, statements relating to the offering of the will invest in shares of a corresponding Lansing, Michigan 48951, Attn: Contracts were filed under the series (‘‘Series’’) of JNL Series Trust Anthony L. Dowling, Esq. Securities Act of 1933 (the ‘‘1933 Act’’) (‘‘Trust’’) or JNL Variable Fund LLC FOR FURTHER INFORMATION CONTACT: (File Nos. 333–70472, 333–70384). (‘‘Fund’’) (collectively the ‘‘Trust and Ellen J. Sazzman, Senior Counsel, at 4. The Distributor is a wholly owned Fund’’). Not all Investment Divisions (202) 551–6762, or Harry Eisenstein, subsidiary of Jackson National and may be available under every Contract.
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The Trust and Fund are open-end change the death benefit paid to the conjunction with the purchase of the management investment companies beneficiary. First, an ‘‘Earnings LifeGuard Freedom 6 GMWB. registered under the Act and their Protection Benefit Endorsement’’ is 12. The Contracts offer fixed and shares are registered under the 1933 offered to owners who are no older than variable versions of the following four Act. age 75 when their Contracts are issued. types of annuity payment or ‘‘income 8. Transfers among the Investment Second, the owner of a JNL Contract payment’’: Life income, joint and Divisions are permitted. The first 15 currently may be offered six optional survivor, life annuity with at least 120 transfers in a contract year are free; death benefits (state variations may or 240 monthly payments guaranteed to subsequent transfers cost $25. Certain apply) that would replace the base death be paid (although not guaranteed as to transfers to, from and among the Fixed benefit. The optional death benefits for amount if variable), and income for a Account Options are also permitted the JNL Contract include the following: specified period of 5 to 30 years. The during the Contracts’ accumulation (i) A 5% Roll-Up death benefit, (ii) a 6% Insurance Companies may also offer phase, but are subject to certain Roll-Up death benefit, (iii) a Highest other income payment options. The adjustments and limitations. Dollar cost Quarterly Anniversary Value Death Contracts may also offer an optional averaging and rebalancing transfers are Benefit, (iv) a Combination 5% Roll-Up Guaranteed Minimum Income Benefit offered at no charge and do not count and Highest Quarterly Anniversary (‘‘GMIB’’) endorsement and various against the 15 free transfers permitted Value Death Benefit, (v) a Combination GMWB optional endorsements. each year. If the optional LifeGuard 6% Roll-Up and Highest Quarterly Select GMWB or the optional LifeGuard Anniversary Value Death Benefit, and 13. All contract enhancements are Select with Joint Option GMWB is (vi) a death benefit available only in paid from the Insurance Company’s elected in the JNL Contracts, automatic conjunction with the purchase of a general account assets. The contract transfers may be required to and from particular GMWB (LifeGuard Freedom 6 enhancement endorsements available the GMWB Fixed Account according to GMWB). are the 2% Contract Enhancement non-discretionary formulas. These 11. The owner of a JNLNY Contract endorsement, 3% Contract automatic transfers also do not count may also be offered certain optional Enhancement endorsement, 4% against the 15 free transfers permitted endorsements that can change the death Contract Enhancement endorsement, or each year and are without charge. benefit paid to the beneficiary. The 5% Contract Enhancement 9. If the owner dies during the owner of a JNLNY Contract may be endorsement. However, the 5% Contract accumulation phase of the Contracts, offered the following two optional death Enhancement endorsement is not the beneficiary named by the owner is benefits that would replace the base available under the JNLNY Contracts. If paid a death benefit by the Insurance death benefit: (i) A Highest Anniversary one of the optional contract Company. The Contracts’ base death Value Death Benefit which is the enhancement endorsements is elected, benefit, which applies unless an greatest of the contract value on the date the Insurance Company will add an optional death benefit has been elected, JNL New York receives proof of death additional amount to the owner’s is a payment to the beneficiary of the and completed claim forms from the contract value (a ‘‘Contract greater of: (i) Contract value on the date beneficiary; or total net premiums since Enhancement’’) for the initial premium the Insurance Company receives proof the contract was issued; or the greatest payment, and for each subsequent of death and completed claim forms contract value on any contract premium payment received within the from the beneficiary or (ii) the total anniversary prior to the owner’s 81st first seven contract years (five contract premiums paid under that Contract birthday, adjusted for any withdrawals years for the 2% Contract Enhancement minus any prior withdrawals (including subsequent to that contract anniversary endorsement). The actual Contract any withdrawal charges, recapture (including any applicable withdrawal Enhancement percentage applied to the charges or other charges or adjustments charges, recapture charges, and other premium payment varies, depending applicable to such withdrawals). charges or adjustments for such upon which Contract Enhancement 10. The owner of a JNL Contract may withdrawals), plus any premium paid endorsement is elected and the contract be offered certain optional subsequent to that contract anniversary; year in which the premium payment is endorsements (for various fees) that can and (ii) a death benefit available only in received as follows:
Contract year premium is received 0–1 1–2 2–3 3–4 4–5 5+
2% Contract Enhancement Endorsement
Contract Enhancement Percentage of the Premium Payment ... 2.00% 2.00% 1.25% 1.25% 0.50% 0%
Contract year premium is received 0–1 1–2 2–3 3–4 4–5 5–6 6–7 7+
3% Contract Enhancement Endorsement
Contract Enhancement Percentage of the Premium Payment...... 3.00% 3.00% 2.25% 2.00% 2.00% 1.00% 1.00% 0%
4% Contract Enhancement Endorsement
Contract Enhancement Percentage of the Premium Payment...... 4.00% 4.00% 3.00% 2.50% 2.50% 1.25% 1.25% 0%
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Contract year premium is received 0–1 1–2 2–3 3–4 4–5 5–6 6–7 7+
5% Contract Enhancement Endorsement (not available under JNLNY Contracts)
Contract Enhancement Percentage of the Premium Payment...... 5.00% 4.50% 3.75% 3.00% 2.25% 1.75% 1.00% 0%
14. At issue, a Contract owner can seven years from the date of the within the recapture charge period in choose only one of the Contract premium payment, and are 0.42%, excess of those permitted under the Enhancement endorsements. An owner 0.56%, and 0.695%, respectively, for the Contracts’ free withdrawal provisions, may not elect the 3%, 4%, or 5% 3%, 4%, and 5% Contract Enhancement unless the withdrawal is made for Contract Enhancement endorsement if endorsements. These charges will also certain health-related emergencies the 20% additional free withdrawal be assessed against any amounts that specified in the Contracts; (ii) elects to endorsement is elected. The Insurance Contract owners have allocated to the receive payments under an income Companies will allocate the Contract Fixed Accounts, resulting in a lower option within the recapture charge Enhancement to the Fixed Accounts annual credited interest rate that would period; or (iii) returns the Contract and/or Investment Divisions in the same apply to the Fixed Account if the during the free-look period. proportion as the premium payment Contract Enhancement endorsement had allocation. Contract Enhancement not been elected. 17. The amount of the recapture endorsements are available only to 16. The Insurance Companies will charge varies, depending upon (i) owners 87 years old and younger. recapture all or a declining portion of Which Contract Enhancement 15. There is an asset-based charge for any Contract Enhancements by endorsement is elected; (ii) the each of the Contract Enhancement imposing a recapture charge whenever corresponding declining amount of the endorsements. The 2% Contract an owner: (i) Makes a total withdrawal Contract Enhancement based on the Enhancement endorsement has a within the recapture charge period (up contract year when the premium 0.395% charge that applies only for the to five years after a premium payment payment being withdrawn was received; first five contract years, as opposed to in the case of the 2% Contract and (iii) when the charge is imposed five years from the date of the premium Enhancement endorsement and up to based on Completed Years since receipt payment. The asset-based charges for seven years after a premium payment in of the related premium. For Contracts the other Contract Enhancement the case of the other Contract with the 2% or 3% Contract endorsements apply only for the first Enhancement endorsements) or a partial Enhancement endorsement, the seven contract years, as opposed to withdrawal of corresponding premiums recapture charge is as follows:
CONTRACT ENHANCEMENT RECAPTURE CHARGE [as a percentage of the corresponding premium payment withdrawn if an optional Contract Enhancement endorsement is selected]
Completed years since receipt of premium Contract year premium is received 0–1 1–2 2–3 3–4 4–5 5–6 6–7 7+
2% Contract Enhancement Endorsement
0–1 ...... 2% 2% 1.25% 1.25% .50% 0% 0% 0% 1–2 ...... 2% 1.25% 1.25% .50% 0% 0% 0% 0% 2–3 ...... 1.25% 1.25% .50% 0% 0% 0% 0% 0% 3–4 ...... 1.25% .50% 0% 0% 0% 0% 0% 0% 4–5 ...... 50% 0% 0% 0% 0% 0% 0% 0% 5–6 ...... 0% 0% 0% 0% 0% 0% 0% 0% 6–7 ...... 0% 0% 0% 0% 0% 0% 0% 0% 7+ ...... 0% 0% 0% 0% 0% 0% 0% 0%
3% Contract Enhancement Endorsement
0–1 ...... 3% 3% 2% 2% 2% 1% 1% 0% 1–2 ...... 3% 2% 2% 2% 1% 1% 0% 0% 2–3 ...... 2% 2% 1.25% 1% 1% 0% 0% 0% 3–4 ...... 2% 2% 1% 1% 0% 0% 0% 0% 4–5 ...... 2% 1% 1% 0% 0% 0% 0% 0% 5–6 ...... 1% 1% 0% 0% 0% 0% 0% 0% 6–7 ...... 1% 0% 0% 0% 0% 0% 0% 0% 7+ ...... 0% 0% 0% 0% 0% 0% 0% 0%
18. Following are recapture charges Recapture Charge schedule applicable to schedule is not applicable to JNLNY for JNL Contracts having the 4% or 5% JNLNY Contracts is provided later in Contracts because the 5% Contract Contract Enhancement endorsement. this notice. The 5% Contract Enhancement endorsement is not The 4% Contract Enhancement Enhancement Recapture Charge available under the JNLNY Contracts.
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Completed years since receipt of Contract year premium is received premium 0–1 1–2 2–3 3–4 4–5 5–6 6–7 7+
4% Contract Enhancement Endorsement (not applicable to JNLNY Contracts)
0–1 ...... 4% 4% 2.50% 2.50% 2.50% 1.25% 1.25% 0% 1–2 ...... 4% 2.50% 2.50% 2.50% 1.25% 1.25% 0% 0% 2–3 ...... 2.50% 2.50% 2% 1.25% 1.25% 0% 0% 0% 3–4 ...... 2.50% 2.50% 1.25% 1.25% 0% 0% 0% 0% 4–5 ...... 2.50% 1.25% 1.25% 0% 0% 0% 0% 0% 5–6 ...... 1.25% 1.25% 0% 0% 0% 0% 0% 0% 6–7 ...... 1.25% 0% 0% 0% 0% 0% 0% 0% 7+ ...... 0% 0% 0% 0% 0% 0% 0% 0%
5% Contract Enhancement Endorsement (not available under JNLNY Contracts)
0–1 ...... 4.50% 3.75% 3.25% 2.75% 2% 1.25% 1% 0% 1–2 ...... 3.75% 3.25% 2.75% 2% 1.25% 1% 0% 0% 2–3 ...... 3.25% 2.75% 2% 1.25% 1% 0% 0% 0% 3–4 ...... 2.75% 2% 1.25% 1% 0% 0% 0% 0% 4–5 ...... 2% 1.25% 1% 0% 0% 0% 0% 0% 5–6 ...... 1.25% 1% 0% 0% 0% 0% 0% 0% 6–7 ...... 1% 0% 0% 0% 0% 0% 0% 0% 7+ ...... 0% 0% 0% 0% 0% 0% 0% 0%
19. A ‘‘Completed Year’’ is the recaptured will be taken from the (12.5% for each of two joint owners) of succeeding twelve months from the date Investment Divisions and the Fixed contract value from the JNL Separate on which the Insurance Companies Account (and the GMWB Fixed Account, the Fixed Account, or the receive a premium payment. Completed Account, if applicable) in the proportion GMWB Fixed Account in connection Years specify the years from the date of their respective values bear to the with certain serious medical conditions receipt of the premium and do not refer contract value. The dollar amount specified in the Contract (this recapture to contract years. If the premium receipt recaptured will never exceed the dollar charge waiver is not available under the date is on the issue date of the Contract amount of the Contract Enhancement JNLNY Contracts). then Completed Year 0–1 does not added to the Contract. Recapture 22. The contract value will reflect any include the first contract anniversary. charges will be applied upon electing to gains or losses attributable to a Contract The first contract anniversary begins commence income payments, even in a Enhancement described above. Contract Completed Year 1–2 and each situation where the withdrawal charge Enhancements, and any gains or losses successive contract anniversary. The is waived. attributable to a Contract Enhancement first contract year (contract year 0–1) 21. The Insurance Companies do not will be considered earnings under the starts on the issue date and extends to, assess the recapture charge on any Contract for tax purposes and for but does not include, the first contract payments paid out as: Death benefits; purposes of calculating free withdrawal anniversary. Subsequent contract years withdrawals of earnings; withdrawals amounts. start on an anniversary date and extend taken under the free withdrawal 23. The JNL Contracts have a ‘‘free- to, but do not include, the next provisions, which allow for free look’’ period of ten days (twenty days for anniversary date. If the premium receipt withdrawals of up to 20% of remaining JNLNY Contracts) after the owner date is other than the issue date or a premium, less earnings (where a receives the Contract (or any longer subsequent contract anniversary, there withdrawal is taken that exceeds the period required by state law). Contract is no correlation of the contract free withdrawal amount, the recapture value (or premiums paid, as may be anniversary date and Completed Years. charge is imposed only on the excess required by state law), less the full For example, if the issue date is January amount above the free withdrawal amount of any Contract Enhancement(s) 15, 2010 and a premium payment is amount); withdrawals necessary to is returned upon exercise of free-look received on February 28, 2010, then, satisfy the required minimum rights by an owner. Therefore, 100% of although the first contract anniversary is distribution of the Internal Revenue the Contract Enhancement will be January 15, 2011, the end of Competed Code (if the withdrawal requested recaptured under all circumstances if an Year 0–1 for that premium payment exceeds the required minimum owner returns the Contract during the would be February 27, 2011, and distribution, the recapture charge will free-look period, but any gain or loss on February 28, 2011 begins Completed not be waived on the required minimum investments of the Contract Year 1–2. distribution); if permitted by the Enhancement would be retained by the 20. The recapture charge percentage owner’s state, withdrawals of up to owner. The dollar amount recaptured will be applied to the corresponding $250,000 from the JNL Separate will never exceed the dollar amount of premium reflected in the amount Account, the Fixed Account or the the Contract Enhancement added to the withdrawn or the amount applied to GMWB Fixed Account in connection Contract. A withdrawal charge will not income payments that remain subject to with the owner’s terminal illness or if be assessed upon exercise of free look a recapture charge. The corresponding the owner needs extended hospital or rights. premium is determined by treating nursing home care as provided in the 24. The withdrawal charges shown in amounts withdrawn as withdrawals first Contract (this recapture charge waiver is the table below apply to differing of earnings, which bear no charge, and not available under the JNLNY versions of the JNL Contracts. The then purchase payments (oldest Contracts); or if permitted by the withdrawal charge schedules applicable purchase payments first). The amount owner’s state, withdrawals of up to 25% to the JNLNY Contracts are provided
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later in this notice. The amount of the Completed Years since the receipt of the withdrawal charge depends upon when related premium as follows: the charge is imposed based on the
WITHDRAWAL CHARGE (AS A PERCENTAGE OF PREMIUM PAYMENTS) NOT APPLICABLE TO JNLNY CONTRACTS
Completed years since receipt of premium 0–1 1–2 2–3 3–4 4–5 5–6 6–7 7+
Withdrawal Charge (Base With- drawal Charge Schedule for Of- ferings under File Nos. 333– 70472 and 333–132128)...... 8.5% 8% 7% 6% 5% 4% 2% 0 Withdrawal Charge (Base With- drawal Charge Schedule for Of- fering under File No. 333– 119656) ...... 8 8 7 6 0 0 0 0 Withdrawal Charge if Five-Year Pe- riod is elected (Optional Five-Year Withdrawal Charge Schedule for Offerings under File No. 333– 70472) ...... 8 7 6 4 2 0 0 0 Withdrawal Charge if Four-Year Pe- riod is elected (Optional Four- Year Withdrawal Charge Sched- ule for Offering under File No. 333–132128) ...... 8 7 5.5 3.5 0 0 0 0
25. The Insurance Companies do not Code (if the withdrawal requested conditions specified in the Contract assess the withdrawal charge on any exceeds the required minimum (this withdrawal charge waiver is not payments paid out as: Death benefits; distribution, the withdrawal charge will available under JNLNY Contracts). election to begin income payments after not be waived on the required minimum 26. The JNLNY Contracts are identical the first contract year under JNL distribution); if permitted by the to the JNL Contracts in the operation of Contracts and after 13 months from the owner’s state law, withdrawals of up to Contract Enhancements, Contract issue date under JNLNY Contracts; $250,000 from the Investment Divisions, cancellation of the Contract upon Fixed Account, or GMWB Fixed Enhancement charges, and Contract exercise of free look rights by an owner; Account of the Contracts in connection Enhancement recapture charges except withdrawals of earnings; withdrawals with the terminal illness of the owner of that: (1) The 5% Contract Enhancement taken under the free withdrawal a Contract, or in connection with endorsement is not available under the provision, which allows for free extended hospital or nursing home care JNLNY Contracts, (2) the recapture withdrawals up to 20% of remaining for the owner (this withdrawal charge charge waivers for terminal illness and premium, less earnings (where a waiver is not available under JNLNY specified medical conditions are not withdrawal is taken that exceeds the Contracts); and if permitted by the available under JNLNY Contracts, and free withdrawal amount, the withdrawal owner’s state, withdrawals of up to 25% (3) the recapture charges for the 4% charge is imposed only on the excess (12.5% each for two joint owners) of Contract Enhancement endorsement are amount above the free withdrawal contract value from the Investment 1% less for JNLNY Contracts in certain amount); withdrawals necessary to Divisions, Fixed Account, or GMWB years than in the JNL Contracts, as satisfy the required minimum Fixed Account of the Contracts in indicated in the table below: distribution of the Internal Revenue connection with certain serious medical
Completed years since receipt of Contract year premium is received premium 0–1 1–2 2–3 3–4 4–5 5–6 6–7 7+
4% Contract Enhancement Recapture Charge for JNLNY Contracts
0–1 ...... 3% 3% 2.50% 2.50% 2.50% 1.25% 1.25% 0% 1–2 ...... 3% 2.50% 2.50% 2.50% 1.25% 1.25% 0% 0% 2–3 ...... 2.50% 2.50% 2% 1.25% 1.25% 0% 0% 0% 3–4 ...... 2.50% 2.50% 1.25% 1.25% 0% 0% 0% 0% 4–5 ...... 2.50% 1.25% 1.25% 0% 0% 0% 0% 0% 5–6 ...... 1.25% 1.25% 0% 0% 0% 0% 0% 0% 6–7 ...... 1.25% 0% 0% 0% 0% 0% 0% 0% 7+ ...... 0% 0% 0% 0% 0% 0% 0% 0%
27. The withdrawal charges from the withdrawal charges applicable charges of the JNLNY Contracts are as applicable to the JNLNY Contracts differ to the JNL Contracts. The withdrawal follows:
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WITHDRAWAL CHARGE [as a percentage of premium payments]
Completed years since receipt of premium 0–1 1–2 2–3 3–4 4–5 5–6 6–7 7+
Withdrawal Charge (Base With- drawal Charge Schedule for Of- ferings under File No. 333–70384) 7% 6% 5% 4% 3% 2% 1% 0 Withdrawal Charge (Base With- drawal Charge Schedule for Of- ferings under File No. 333– 119659) ...... 7% 6% 5% 4% 0 0 0 0 Withdrawal Charge if Five-Year Pe- riod is elected (Optional Five-Year Withdrawal Charge Schedule for Offerings under File No. 333– 70384) ...... 6.5% 5% 3% 2% 1% 0 0 0
Applicants’ Legal Analysis sponsoring insurance company to sell a Insurance Companies could not 1. Applicants state that Section 6(c) of contract funded by the registered recapture the Contract Enhancement, the Act authorizes the Commission to separate account unless such contract is individuals could purchase a Contract exempt any person, security or a redeemable security. Section 2(a)(32) with no intention of retaining it and transaction, or any class or classes of defines ‘‘redeemable security’’ as any simply return it for a quick profit. persons, securities or transactions from security, other than short-term paper, Furthermore, Applicants state that the the provisions of the Act and the rules under the terms of which the holder, recapture of the Contract Enhancement promulgated thereunder if and to the upon presentation to the issuer, is relating to withdrawals and to income extent that such exemption is necessary entitled to receive approximately his payments within the first five or seven or appropriate in the public interest and proportionate share of the issuer’s contract years is designed to protect the consistent with the protection of current net assets, or the cash equivalent Insurance Companies against Contract investors and the purposes fairly thereof. owners not holding the Contract for a intended by the policy and provisions of 3. Applicants submit that the sufficient time period. This recapture of the Act. Applicants request that the recapture of the Contract Enhancement the Contract Enhancement would Commission, pursuant to Section 6(c) of in the circumstances set forth in the provide the Insurance Companies with the Act, grant the exemptions requested Application would not deprive an sufficient time to recover the cost of the below with respect to the Contracts and owner of his or her proportionate share Contract Enhancement and to avoid the any Future Contracts funded by the of the issuer’s current net assets. A financial detriment that would result Separate Accounts or Other Accounts Contract owner’s interest in the amount from a shorter recapture period. that are issued by the Insurance of the Contract Enhancement allocated 5. Applicants represent that it is not Companies and underwritten or to his or her contract value upon the administratively feasible to track the distributed by the Distributor or Insurance Companies’ receipt of a Contract Enhancement amount in the Affiliated Broker-Dealers. Applicants premium payment is not fully vested Separate Accounts after the Contract undertake that Future Contracts funded until five or seven complete years Enhancement(s) is applied. by the Separate Accounts or Other following a premium payment. Until or Accordingly, the asset-based charges Accounts, in the future, will be unless the amount of any Contract applicable to the Separate Accounts will substantially similar in all material Enhancement is vested, the Insurance be assessed against the entire amounts respects to the Contracts. Applicants Companies retain the right and interest held in the Separate Accounts, believe that the requested exemptions in the Contract Enhancement amount, including any Contract Enhancement are appropriate in the public interest although not in the earnings attributable amounts. As a result, the aggregate and consistent with the protection of to that amount. Thus, Applicants urge asset-based charges assessed will be investors and the purposes fairly that when one of the Insurance higher than those that would be charged intended by the policy and provisions of Companies recaptures any Contract if the Contract owner’s contract value the Act. Enhancement, it is simply retrieving its did not include any Contract 2. Applicants state that Section 27 of own assets, and because a Contract Enhancement. the Act regulates and imposes certain owner’s interest in the Contract 6. Applicants submit that the restrictions on the sales of periodic Enhancement is not vested, the Contract provisions for recapture of any Contract payment plan certificates issued by any owner has not been deprived of a Enhancement under the Contracts do registered investment company. proportionate share of the Separate not violate Sections 2(a)(32) and Subsection (i) of Section 27 of the Act Account’s assets, i.e., a share of the 27(i)(2)(A) of the Act. Sections 26(e) and provides that Section 27 does not apply Separate Account’s assets proportionate 27(i) were added to the Act to to any registered separate account to the Contract owner’s contract value. implement the purposes of the National funding variable insurance contracts, or 4. In addition, Applicants represent Securities Markets Improvement Act of to the sponsoring insurance company that it would be patently unfair to allow 1996 and Congressional intent. The and principal underwriter of such a Contract owner exercising the free- application of a Contract Enhancement account, except as provided in look privilege to retain the Contract to premium payments made under the paragraph (2) of the subsection. Enhancement amount under a Contract Contracts should not raise any questions Paragraph (2) provides that it shall be that has been returned for a refund after as to compliance by the Insurance unlawful for such a separate account or a period of only a few days. If the Companies with the provisions of
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Section 27(i). However, to avoid any owners will be entitled to retain any SECURITIES AND EXCHANGE uncertainty as to full compliance with investment gains attributable to the COMMISSION the Act, Applicants request an order Contract Enhancement and to bear any [Release No. 34–61860; File No. 4–597] providing an exemption from Sections investment losses attributable to the 2(a)(32) and 27(i)(2)(A), to the extent Contract Enhancement, the amount of Program for Allocation of Regulatory deemed necessary, to permit the such gains or losses will be determined Responsibilities Pursuant to Rule 17d– recapture of the Contract Enhancements on the basis of the current net asset 2; Notice of Filing of Proposed Plan for under the circumstances described values of the Separate Accounts. Thus, the Allocation of Regulatory herein and in the Application, without no dilution will occur upon the Responsibilities Between EDGA the loss of relief from Section 27 recapture of the Contract Enhancement. Exchange, Inc. and the Financial provided by Section 27(i). Industry Regulatory Authority, Inc. 7. Applicants state that Section 22(c) Applicants also submit that the second of the Act authorizes the Commission to harm that Rule 22c–1 was designed to April 7, 2010. make rules and regulations applicable to address, namely, speculative trading Pursuant to Section 17(d) of the registered investment companies and to practices calculated to take advantage of Securities Exchange Act of 1934 principal underwriters of, and dealers backward pricing, will not occur as a (‘‘Act’’),1 and Rule 17d–2 thereunder,2 in, the redeemable securities of any result of the recapture of the Contract notice is hereby given that on April 2, registered investment company to Enhancement. Because neither of the 2010, EDGA Exchange, Inc. (‘‘EDGA’’) accomplish the same purposes as harms that Rule 22c–1 was meant to and the Financial Industry Regulatory contemplated by Section 22(a). Rule address is found in the recapture of the Authority, Inc. (‘‘FINRA’’) (together with 22c–1 under the Act prohibits a Contract Enhancement, Rule 22c–1 EDGA, the ‘‘Parties’’) filed with the registered investment company issuing should not apply to any Contract Securities and Exchange Commission any redeemable security, a person Enhancement. However, to avoid any (‘‘Commission’’) a plan for the allocation designated in such issuer’s prospectus uncertainty as to full compliance with of regulatory responsibilities, dated as authorized to consummate Rule 22c–1, Applicants request an order March 31, 2010 (the ‘‘17d–2 Plan’’). The transactions in any such security, and a granting an exemption from the Commission is publishing this notice to principal underwriter of, or dealer in, provisions of Rule 22c–1 to the extent solicit comments on the 17d–2 Plan such security, from selling, redeeming, deemed necessary to permit them to from interested persons. or repurchasing any such security recapture the Contract Enhancement except at a price based on the current I. Introduction under the Contracts. net asset value of such security which Section 19(g)(1) of the Act,3 among is next computed after receipt of a 9. Applicants submit that extending other things, requires every self- tender of such security for redemption the requested relief to encompass Future regulatory organization (‘‘SRO’’) or of an order to purchase or sell such Contracts and Other Accounts is registered as either a national securities security. appropriate in the public interest exchange or registered national 8. Applicants state that it is possible because it promotes competitiveness in securities association to examine for, that someone might view the Insurance the variable annuity market by and enforce compliance by, its members Companies’ recapture of the Contract eliminating the need to file redundant and persons associated with its Enhancements as resulting in the exemptive applications prior to members with the Act, the rules and redemption of redeemable securities for introducing new variable annuity regulations thereunder, and the SRO’s a price other than one based on the contracts. Investors would receive no own rules, unless the SRO is relieved of current net asset value of the Separate benefit or additional protection by this responsibility pursuant to Section 4 5 Accounts. Applicants contend, requiring Applicants to repeatedly seek 17(d) or Section 19(g)(2) of the Act. however, that the recapture of the exemptive relief that would present no Without this relief, the statutory Contract Enhancement does not violate issues under the Act not already obligation of each individual SRO could Rule 22c–1. The recapture of some or all result in a pattern of multiple addressed in the Application. of the Contract Enhancement does not examinations of broker-dealers that involve either of the evils that Section 10. Applicants submit, for the reasons maintain memberships in more than one 22(c) and Rule 22c–1 were intended to stated herein, that their exemptive SRO (‘‘common members’’). Such eliminate or reduce as far as reasonably request meets the standards set out in regulatory duplication would add practicable, namely: (i) The dilution of Section 6(c) of the Act, namely, that the unnecessary expenses for common the value of outstanding redeemable exemptions requested are appropriate in members and their SROs. securities of registered investment the public interest and consistent with Section 17(d)(1) of the Act 6 was companies through their sale at a price the protection of investors and the intended, in part, to eliminate below net asset value or repurchase at purposes fairly intended by the policy unnecessary multiple examinations and a price above it, and (ii) other unfair and provisions of the Act and that, regulatory duplication.7 With respect to results, including speculative trading therefore, the Commission should grant a common member, Section 17(d)(1) practices. To effect a recapture of a the requested order. authorizes the Commission, by rule or Contract Enhancement, the Insurance order, to relieve an SRO of the Companies will redeem interests in a For the Commission, by the Division of Contract owner’s contract value at a Investment Management, pursuant to 1 15 U.S.C. 78q(d). price determined on the basis of the delegated authority. 2 17 CFR 240.17d–2. current net asset value of the JNL and Florence E. Harmon, 3 15 U.S.C. 78s(g)(1). 4 JNLNY Separate Accounts. The amount Deputy Secretary. 15 U.S.C. 78q(d). 5 15 U.S.C. 78s(g)(2). recaptured will be less than or equal to [FR Doc. 2010–8369 Filed 4–12–10; 8:45 am] the amount of the Contract 6 15 U.S.C. 78q(d)(1). BILLING CODE 8011–01–P 7 See Securities Act Amendments of 1975, Report Enhancement that the Insurance of the Senate Committee on Banking, Housing, and Companies paid out of its general Urban Affairs to Accompany S. 249, S. Rep. No. 94– account assets. Although Contract 75, 94th Cong., 1st Session 32 (1975).
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responsibility to receive regulatory EDGA and FINRA.11 Pursuant to the exercise concurrent jurisdiction and reports, to examine for and enforce proposed 17d–2 Plan, FINRA would responsibility for such matter.14 compliance with applicable statutes, assume certain examination and Under the 17d–2 Plan, EDGA would rules, and regulations, or to perform enforcement responsibilities for retain full responsibility for other specified regulatory functions. common members with respect to surveillance, examination, investigation, To implement Section 17(d)(1), the certain applicable laws, rules, and and enforcement with respect to trading Commission adopted two rules: Rule regulations. activities or practices involving EDGA’s 17d–1 and Rule 17d–2 under the Act.8 The text of the 17d–2 Plan delineates own marketplace, including, without Rule 17d–1 authorizes the Commission the proposed regulatory responsibilities limitation, registration pursuant to its to name a single SRO as the designated between the Parties. Included in the unique rules (i.e., non-common rules); examining authority (‘‘DEA’’) to examine 17d–2 Plan is an attachment (‘‘EDGA its duties as a DEA pursuant to Rule common members for compliance with Certification for 17d–2 Agreement with 17d–1 under the Act; and any rules that the financial responsibility FINRA’’ referred to herein as the are not Common Rules, except for EDGA requirements imposed by the Act, or by ‘‘Certification’’) that lists every EDGA rules for any broker-dealer subsidiary of 9 Commission or SRO rules. When an rule and select federal securities laws, Direct Edge Holdings LLC.15 SRO has been named as a common rules and regulations for which FINRA The text of the proposed 17d–2 Plan member’s DEA, all other SROs to which would bear responsibility under the is as follows: the common member belongs are 17d–2 Plan for overseeing and enforcing relieved of the responsibility to examine Agreement Between FINRA and EDGA with respect to EDGA members that are Exchange, Inc. Pursuant to Rule 17d–2 the firm for compliance with the also members of FINRA and the applicable financial responsibility rules. Under the Securities Exchange Act of associated persons therewith (‘‘Dual 1934 On its face, Rule 17d–1 deals only with Members’’). an SRO’s obligations to enforce member This Agreement, by and between the Specifically, under the 17d–2 Plan, compliance with financial responsibility Financial Industry Regulatory Authority FINRA would assume examination and requirements. Rule 17d–1 does not (‘‘FINRA’’) and EDGA Exchange, Inc. enforcement responsibility relating to relieve an SRO from its obligation to (‘‘EDGA’’), is made this 31st day of compliance by Dual Members with the examine a common member for March, 2010 (the ‘‘Agreement’’), rules of EDGA that are substantially compliance with its own rules and pursuant to Section 17(d) of the similar to the applicable rules of FINRA, provisions of the federal securities laws Securities Exchange Act of 1934 (the as well as any provisions of the federal governing matters other than financial ‘‘Exchange Act’’) and Rule 17d–2 securities laws and the rules and responsibility, including sales practices thereunder which permits agreements regulations thereunder delineated in the and trading activities and practices. between self-regulatory organizations to Certification (‘‘Common Rules’’).12 To address regulatory duplication in allocate regulatory responsibility to Common Rules would not include the these and other areas, the Commission eliminate regulatory duplication. FINRA 10 application of any EDGA Rule or FINRA adopted Rule 17d–2 under the Act. and EDGA may be referred to rule, or any rule or regulation under the Rule 17d–2 permits SROs to propose individually as a ‘‘party’’ and together as Act, to the extent that it pertains to joint plans for the allocation of the ‘‘parties.’’ violations of insider trading activities, regulatory responsibilities with respect Whereas, FINRA and EDGA desire to because such matters are covered by a to their common members. Under reduce duplication in the examination separate multiparty agreement under paragraph (c) of Rule 17d–2, the of their Dual Members (as defined Rule 17d–2.13 In the event that a Dual Commission may declare such a plan herein) and in the filing and processing Member is the subject of an effective if, after providing for of certain registration and membership investigation relating to a transaction on appropriate notice and comment, it records; and EDGA, the 17d–2 Plan acknowledges determines that the plan is necessary or Whereas, FINRA and EDGA desire to that EDGA may, in its discretion, appropriate in the public interest and execute an agreement covering such for the protection of investors; to foster subjects pursuant to the provisions of cooperation and coordination among the 11 The proposed 17d–2 Plan refers to these common members as ‘‘Dual Members.’’ See Rule 17d–2 under the Exchange Act and SROs; to remove impediments to, and to file such agreement with the foster the development of, a national Paragraph 1(c) of the proposed 17d–2 Plan. 12 See paragraph 1(b) of the 17d–2 plan (defining Securities and Exchange Commission market system and a national clearance Common Rules). See also paragraph 1(f) of the (the ‘‘SEC’’ or ‘‘Commission’’) for its and settlement system; and is in proposed 17d–2 Plan (defining Regulatory approval. conformity with the factors set forth in Responsibilities). Paragraph 2 of the 17d–2 Plan Now, therefore, in consideration of Section 17(d) of the Act. Commission provides that annually, or more frequently as required by changes in either EDGA rules or FINRA the mutual covenants contained approval of a plan filed pursuant to Rule rules, the parties shall review and update, if hereinafter, FINRA and EDGA hereby 17d–2 relieves an SRO of those necessary, the list of Common Rules. Further, agree as follows: regulatory responsibilities allocated by paragraph 3 of the Plan provides that EDGA shall 1. Definitions. Unless otherwise the plan to another SRO. furnish FINRA with a list of Dual Members, and shall update the list no less frequently than once defined in this Agreement or the context II. Proposed 17d–2 Plan each calendar quarter. otherwise requires, the terms used in 13 See Securities Exchange Act Release No. 58350 this Agreement shall have the same The proposed 17d–2 Plan is intended (August 13, 2008), 73 FR 48247 (August 18, 2008) meaning as they have under the to reduce regulatory duplication for (File No. 4–566) (notice of filing of proposed plan). firms that are common members of both See also Securities Exchange Act Release Nos. 58536 (September 12, 2008) (File No. 4–566) (order 14 See paragraph 6 of the proposed 17d–2 Plan. approving and declaring effective the plan) and 15 Apparent violations of such EDGA rules by any 8 17 CFR 240.17d–1 and 17 CFR 240.17d–2, 58806 (October 17, 2008) (File No. 4–566) (order broker-dealer subsidiary of Direct Edge Holdings respectively. approving and declaring effective an amendment to LLC will be processed by, and enforcement 9 See Securities Exchange Act Release No. 12352 the plan). The Certification identifies several proceedings will be conducted by, FINRA. See (April 20, 1976), 41 FR 18808 (May 7, 1976). Common Rules that may also be addressed in the paragraphs 2(d) and 6 of the 17d–2 Plan. As of the 10 See Securities Exchange Act Release No. 12935 context of regulating insider trading activities date of this Agreement, Direct Edge ECN LLC is the (October 28, 1976), 41 FR 49091 (November 8, pursuant to the proposed separate multiparty only broker-dealer susbsidiary of Direct Edge 1976). agreement. Holdings LLC.
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Exchange Act and the rules and regulations, each as set forth on Exhibit Enforcement Responsibilities under this regulations thereunder. As used in this 1 attached hereto. Agreement except as hereinafter Agreement, the following terms shall 2. Regulatory and Enforcement provided. FINRA shall provide EDGA have the following meanings: Responsibilities. FINRA shall assume with ninety (90) days advance written (a) ‘‘EDGA Rules’’ or ‘‘FINRA Rules’’ Regulatory Responsibilities and notice in the event FINRA decides to shall mean: (i) The rules of EDGA, or (ii) Enforcement Responsibilities for Dual impose any charges to EDGA for the rules of FINRA, respectively, as the Members. Attached as Exhibit 1 to this performing the Regulatory rules of an exchange or association are Agreement and made part hereof, EDGA Responsibilities under this Agreement. defined in Exchange Act Section furnished FINRA with a current list of If FINRA determines to impose a charge, 3(a)(27). Common Rules and certified to FINRA EDGA shall have the right at the time of (b) ‘‘Common Rules’’ shall mean the that such rules are substantially similar the imposition of such charge to EDGA Rules that are substantially to the corresponding FINRA rule (the terminate this Agreement; provided, similar to the applicable FINRA Rules ‘‘Certification’’). FINRA hereby agrees however, that FINRA’s Regulatory and certain provisions of the Exchange that the rules listed in the Certification Responsibilities under this Agreement Act and SEC rules set forth on Exhibit are Common Rules as defined in this shall continue until the Commission 1 in that examination for compliance Agreement. Each year following the approves the termination of this with such provisions and rules would Effective Date of this Agreement, or Agreement. not require FINRA to develop one or more frequently if required by changes 5. Applicability of Certain Laws, more new examination standards, in either the rules of EDGA or FINRA, Rules, Regulations or Orders. modules, procedures, or criteria in order EDGA shall submit an updated list of Notwithstanding any provision hereof, to analyze the application of the such Common Rules to FINRA for review this Agreement shall be subject to any provisions or rule, or a Dual Member’s which shall add EDGA Rules not statute, or any rule or order of the SEC. activity, conduct, or output in relation included in the current list of Common To the extent such statute, rule, or order to such rule; provided however, Rules that qualify as Common Rules as is inconsistent with one or more Common Rules shall not include the defined in this Agreement; delete EDGA provisions of this Agreement, the application of the SEC, EDGA or FINRA Rules included in the current list of statute, rule, or order shall supersede rules as they pertain to violations of Common Rules that no longer qualify as the provision(s) hereof to the extent insider trading activities, which is Common Rules as defined in this necessary to be properly effectuated and covered by a separate 17d–2 Agreement Agreement; and confirm that the the provision(s) hereof in that respect by and among the American Stock remaining rules on the current list of shall be null and void. Exchange, LLC, Boston Stock Exchange, Common Rules continue to be EDGA 6. Notification of Violations. Inc., Chicago Board Options Exchange, Rules that qualify as Common Rules as (a) In the event that FINRA becomes Inc., Chicago Stock Exchange, Inc., defined in this Agreement. Within 30 aware of apparent violations of any Financial Industry Regulatory days of receipt of such updated list, EDGA Rules, which are not listed as Authority, Inc., International Securities FINRA shall confirm in writing whether Common Rules, discovered pursuant to Exchange, LLC, The NASDAQ Stock the rules listed in any updated list are the performance of the Regulatory Market LLC, National Stock Exchange, Common Rules as defined in this Responsibilities assumed hereunder, Inc., New York Stock Exchange, LLC, Agreement. Notwithstanding anything FINRA shall notify EDGA of those NYSE Arca Inc., NYSE Regulation, Inc., herein to the contrary, it is explicitly apparent violations for such response as and Philadelphia Stock Exchange, Inc. understood that the term ‘‘Regulatory EDGA deems appropriate. effective October 17, 2008, as may be Responsibilities’’ does not include, and (b) In the event that EDGA becomes amended from time to time. EDGA shall retain full responsibility for aware of apparent violations of any (c) ‘‘Dual Members’’ shall mean those (unless otherwise addressed by separate Common Rules, discovered pursuant to EDGA members that are also members agreement or rule) the following: the performance of the Retained of FINRA and the associated persons (a) Surveillance, examination, Responsibilities, EDGA shall notify therewith. investigation and enforcement with FINRA of those apparent violations and (d) ‘‘Effective Date’’ shall be the date respect to trading activities or practices such matters shall be handled by FINRA this Agreement is approved by the involving EDGA’s own marketplace; as provided in this Agreement. Commission. (b) registration pursuant to its (c) With respect to apparent violations (e) ‘‘Enforcement Responsibilities’’ applicable rules of associated persons of any EDGA Rules by any broker-dealer shall mean the conduct of appropriate (i.e., registration rules that are not subsidiary of EDGA’s holding company, proceedings, in accordance with Common Rules); Direct Edge Holdings LLC, FINRA shall FINRA’s Code of Procedure (the Rule (c) discharge of its duties and not make referrals to EDGA pursuant to 9000 Series) and other applicable obligations as a Designated Examining this paragraph 6. Such apparent FINRA procedural rules, to determine Authority pursuant to Rule 17d–1 under violations shall be processed by, and whether violations of Common Rules the Exchange Act, if applicable; and enforcement proceedings in respect have occurred, and if such violations are (d) any EDGA Rules that are not thereto will be conducted by, FINRA as deemed to have occurred, the Common Rules, except for EDGA Rules provided in this Agreement. imposition of appropriate sanctions as for any broker-dealer subsidiary of (d) Apparent violations of Common specified under FINRA’s Code of Direct Edge Holdings LLC, as provided Rules and FINRA rules shall be Procedure and sanctions guidelines. in paragraph 6. processed by, and enforcement (f) ‘‘Regulatory Responsibilities’’ shall 3. Dual Members. Prior to the proceedings in respect thereto shall be mean the examination responsibilities Effective Date, EDGA shall furnish conducted by FINRA as provided and Enforcement Responsibilities FINRA with a current list of Dual hereinbefore; provided, however, that in relating to compliance by the Dual Members, which shall be updated no the event a Dual Member is the subject Members with the Common Rules and less frequently than once each quarter. of an investigation relating to a the provisions of the Exchange Act and 4. No Charge. There shall be no charge transaction on EDGA, EDGA may in its the rules and regulations thereunder, to EDGA by FINRA for performing the discretion assume concurrent and other applicable laws, rules and Regulatory Responsibilities and jurisdiction and responsibility.
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(e) Each party agrees to make accompanied with any applicable filing to such liability, loss or damages as available promptly all files, records and fees set forth in FINRA Rules. shall have been suffered by one or the witnesses necessary to assist the other 11. No Restrictions on Regulatory other of FINRA or EDGA and caused by in its investigation or proceedings. Action. Nothing contained in this the willful misconduct of the other 7. Continued Assistance. Agreement shall restrict or in any way party or their respective directors, (a) FINRA shall make available to encumber the right of either party to governors, officers or employees. No EDGA all information obtained by conduct its own independent or warranties, express or implied, are made FINRA in the performance by it of the concurrent investigation, examination by FINRA or EDGA with respect to any Regulatory Responsibilities hereunder or enforcement proceeding of or against of the responsibilities to be performed in respect to the Dual Members subject Dual Members, as either party, in its by each of them hereunder. to this Agreement. In particular, and not sole discretion, shall deem appropriate 17. Relief from Responsibility. in limitation of the foregoing, FINRA or necessary. Pursuant to Sections 17(d)(1)(A) and shall furnish EDGA any information it 12. Termination. This Agreement may 19(g) of the Exchange Act and Rule 17d– obtains about Dual Members which be terminated by EDGA or FINRA at any 2 thereunder, FINRA and EDGA join in reflects adversely on their financial time upon the approval of the requesting the Commission, upon its condition. EDGA shall make available to Commission after one (1) year’s written approval of this Agreement or any part FINRA any information coming to its notice to the other party, except as thereof, to relieve EDGA of any and all attention that reflects adversely on the provided in paragraph 4. responsibilities with respect to matters financial condition of Dual Members or 13. Arbitration. In the event of a allocated to FINRA pursuant to this indicates possible violations of dispute between the parties as to the Agreement; provided, however, that this applicable laws, rules or regulations by operation of this Agreement, EDGA and Agreement shall not be effective until such firms. FINRA hereby agree that any such the Effective Date. (b) The parties agree that documents dispute shall be settled by arbitration in 18. Severability. Any term or or information shared shall be held in Washington, DC, in accordance with the provision of this Agreement that is confidence, and used only for the rules of the American Arbitration invalid or unenforceable in any purposes of carrying out their respective Association then in effect, or such other jurisdiction shall, as to such regulatory obligations. Neither party procedures as the parties may mutually jurisdiction, be ineffective to the extent shall assert regulatory or other agree upon. Judgment on the award of such invalidity or unenforceability privileges as against the other with rendered by the arbitrator(s) may be without rendering invalid or respect to documents or information entered in any court having jurisdiction. unenforceable the remaining terms and that is required to be shared pursuant to Each party acknowledges that the timely provisions of this Agreement or this Agreement. and complete performance of its affecting the validity or enforceability of (c) The sharing of documents or obligations pursuant to this Agreement any of the terms or provisions of this information between the parties is critical to the business operations of Agreement in any other jurisdiction. pursuant to this Agreement shall not be the other party. In the event of a dispute deemed a waiver against third parties of between the parties, the parties shall 19. Counterparts. This Agreement regulatory or other privileges relating to continue to perform their respective may be executed in one or more the discovery of documents or obligations under this Agreement in counterparts, each of which shall be information. good faith during the resolution of such deemed an original, and such 8. Statutory Disqualifications. When dispute unless and until this Agreement counterparts together shall constitute FINRA becomes aware of a statutory is terminated in accordance with its one and the same instrument. disqualification as defined in the provisions. Nothing in Section 13 shall In witness whereof, each party has Exchange Act with respect to a Dual interfere with a party’s right to executed or caused this Agreement to be Member, FINRA shall determine terminate this Agreement as set forth executed on its behalf by a dully pursuant to Sections 15A(g) and/or herein. authorized officer as of the date first Section 6(c) of the Exchange Act the 14. Notification of Members. EDGA written above. acceptability or continued applicability and FINRA shall notify Dual Members EDGA Exchange, Inc. of the person to whom such of this Agreement after the Effective By: lllllllllllllllllll disqualification applies and keep EDGA Date by means of a uniform joint notice. advised of its actions in this regard for 15. Amendment. This Agreement may Name: such subsequent proceedings as EDGA be amended in writing duly approved Title: may initiate. by each party. All such amendments Financial Industry Regulatory Authority 9. Customer Complaints. EDGA shall must be filed with and approved by the By: lllllllllllllllllll forward to FINRA copies of all customer Commission before they become Name: complaints involving Dual Members effective. Title: received by EDGA relating to FINRA’s 16. Limitation of Liability. Neither Regulatory Responsibilities under this FINRA nor EDGA nor any of their EDGA Exchange, Inc. Certification respective directors, governors, officers Agreement. It shall be FINRA’s EDGA Certification for 17d–2 or employees shall be liable to the other responsibility to review and take Agreement With FINRA appropriate action in respect to such party to this Agreement for any liability, complaints. loss or damage resulting from or EDGA Exchange, Inc. hereby certifies 10. Advertising. FINRA shall assume claimed to have resulted from any that the requirements contained in the responsibility to review the advertising delays, inaccuracies, errors or omissions rules listed below are identical to, or of Dual Members subject to the with respect to the provision of substantially similar to, the comparable Agreement, provided that such material Regulatory Responsibilities as provided FINRA (NASD) Rule, Exchange Act is filed with FINRA in accordance with hereby or for the failure to provide any provision or SEC rule identified FINRA’s filing procedures and is such responsibility, except with respect (‘‘Common Rules’’).
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Rule 2.5, Interpretation and Policy .04, The Regulatory Element of NASD Rule 1120(a)(1)–(4) Continuing Education Requirements. Continuing Education Requirement for Authorized Traders of Mem- bers. Rule 3.1 Business Conduct of Members ...... FINRA Rule 2010 Standards of Commercial Honor and Principles of Trade.* Rule 3.2 Violations Prohibited 16 ...... FINRA Rule 2010 Standards of Commercial Honor and Principles of Trade and 3010 Supervision.* Rule 3.3 Use of Fraudulent Devices ...... FINRA Rule 2020 Use of Manipulative, Deceptive or Other Fraudulent Device. Rule 3.5(a) Advertising Practices ...... NASD Rule 2210(d)(1)(B) Communications with the Public. Rule 3.5(b) Advertising Practices ...... NASD Rule 2210(d)(2)(C) Communications with the Public. Rule 3.5(c) Advertising Practices ...... NASD Rule 2210(d)(1) Communications with the Public. Rule 3.5(d) Advertising Practices ...... NASD Rule 2210(b)(1) Communications with the Public. Rule 3.5(e) Advertising Practices ...... NASD Rule 2210(b)(2)(A) and 2210(c) Communications with the Pub- lic. Rule 3.5(f) Advertising Practices ...... NASD Rule 2210(d)(2)(A) and 2210(d)(1)(E) Communications with the Public. Rule 3.5(g) Advertising Practices ...... NASD Rule 2210(d)(1) Communications with the Public. Rule 3.5(h) Advertising Practices ...... NASD Rule 2210(d)(1) Communications with the Public. Rule 3.6 Fair Dealing with Customers ...... NASD Rule IM–2310–2(b)(1), (2), (4)(A)(i), (4)(A)(iii), (4)(A)(iv), and (5) Fair Dealing with Customers. Rule 3.7(a) Recommendations to Customers ...... NASD Rule 2310(a) Recommendations to Customers (Suitability). Rule 3.8(a) The Prompt Receipt and Delivery of Securities ...... NASD Rule 3370 Purchases. Rule 3.8(b) The Prompt Receipt and Delivery of Securities ...... SEC Regulation SHO. Rule 3.9 Charges for Services Performed ...... NASD Rule 2430 Charges for Services Performed. Rule 3.10 Use of Information ...... FINRA Rule 2060 Use of Information Obtained in Fiduciary Capacity. Rule 3.11 Publication of Transactions and Quotations ...... FINRA Rule 5210 Publication of Transactions and Quotations. Rule 3.12 Offers at Stated Prices ...... FINRA Rule 5220 Offers at Stated Prices. Rule 3.14 Disclosure on Confirmations ...... NASD Rule 2230 Confirmations and SEA Rule 10b–10 Confirmation of Transactions. Rule 3.15 Disclosure of Control ...... FINRA Rule 2262 Disclosure of Control Relationship with Issuer. Rule 3.16 Discretionary Accounts ...... NASD Rule 2510 Discretionary Accounts. Rule 3.17 Customer’s Securities or Funds ...... FINRA Rule 2150(a) Improper Use of Customers’ Securities or Funds; Prohibition Against Guarantees and Sharing in Accounts. Rule 3.18 Prohibition Against Guarantees ...... FINRA Rule 2150(b) Improper Use of Customers’ Securities or Funds; Prohibition Against Guarantees and Sharing in Accounts. Rule 3.19 Sharing in Accounts; Extent Permissible ...... FINRA Rule 2150(c)(1) Improper Use of Customers’ Securities or Funds; Prohibition Against Guarantees and Sharing in Accounts. Rule 4.1 Requirements ...... Section 17 of the Exchange Act and the Rules Thereunder. Rule 4.3 Record of Written Complaints ...... NASD Rule 3110(d) and (e) Books and Records.** Rule 4.4 Disclosure of Financial Condition ...... NASD Rule 2270 Disclosure of Financial Condition to Customers & SEA Rule 17a–5(c). Rule 5.1 Written Procedures ...... NASD Rule 3010(b)(1) Supervision—Written Procedures.* Rule 5.2 Responsibility of Members ...... NASD Rule 3010(a)(4) and (b)(4) Supervision.* Rule 5.3 Records ...... NASD Rule 3010(a)(1), (b) and (c) Supervision.* Rule 5.4 Review of Activities ...... NASD Rule 3010(c)(1) Supervision—Internal Inspections.* Rule 5.5 Information Barrier Procedures ...... Section 15(f) of Exchange Act. Rule 5.6 Anti-Money Laundering Compliance Program ...... FINRA Rule 3310 Anti-Money Laundering Compliance Program. Rule 9.3 Predispute Arbitration Agreements ...... NASD Rule 3110(f) Books and Records (Requirements When Using Predispute Arbitration Agreements for Customer Accounts). Rule 12.3 Excessive Sales by a Member ...... FINRA Rule 6140(c) Other Trading Practices.*** Rule 12.5 Dissemination of False Information ...... FINRA Rule 6140(e) Other Trading Practices.*** Rule 12.11 Best Execution ...... NASD Rule 2320 Best Execution and Interpositioning. Rule 12.13 Trading Ahead of Research Reports ...... FINRA Rule 5280 Trading Ahead of Research Reports. Rule 13.3 Forwarding of Issuer Materials ...... FINRA Rule 2251 Forwarding of Proxy and Other Issuer-Related Mate- rials.
Rule 607 of Regulation NMS—Customer Exchange, Inc. effective October 17, 2008, as In addition, the following provisions shall Account Statements may be amended from time to time. be part of this 17d–2 Agreement: * FINRA shall not have any Regulatory ** FINRA shall only have any Regulatory SEC Rules: Responsibilities for these rules as they Responsibilities for the first three years Rule 200 of Regulation SHO—Definition of pertain to violations of insider trading regarding EDGA’s five year requirement of ‘‘Short Sale’’ and Marking Requirements activities, which is covered by a separate keeping and preserving a file of all written Rule 203 of Regulation SHO—Borrowing and 17d–2 Agreement by and among the complaints of customers and action taken by Delivery Requirements American Stock Exchange, LLC, Boston Stock the Member in respect thereof. Rule 606 of Regulation NMS—Disclosure of Exchange, Inc., Chicago Board Options *** FINRA shall not have any Regulatory Order Routing Information Exchange, Inc., Chicago Stock Exchange, Inc., Responsibilities for these rules as they Financial Industry Regulatory Authority, pertain to trading practices involving 16 FINRA shall only have Regulatory Inc., International Securities Exchange, LLC, securities that do not meet the definition of Responsibility regarding the first phrase of the The NASDAQ Stock Market LLC, National EDGA rule regarding prohibitions from violating the NMS stock as defined in Rule 600(b)(47) of Securities Exchange Act of 1934 and the rules and Stock Exchange, Inc., New York Stock SEC Regulation NMS. regulations thereunder; responsibility for the Exchange, LLC, NYSE Arca Inc., NYSE remainder of the Rule shall remain with EDGA. Regulation, Inc., and Philadelphia Stock * * * * *
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III. Date of Effectiveness of the public in accordance with the securities association to examine for, Proposed Plan and Timing for provisions of 5 U.S.C. 552, will be and enforce compliance by, its members Commission Action available for Web site viewing and and persons associated with its Pursuant to Section 17(d)(1) of the printing in the Commission’s Public members with the Act, the rules and Act 17 and Rule 17d–2 thereunder,18 Reference Room, 100 F Street, NE., regulations thereunder, and the SRO’s after April 28, 2010, the Commission Washington, DC 20549, on official own rules, unless the SRO is relieved of may, by written notice, declare the plan business days between the hours of 10 this responsibility pursuant to Section submitted by EDGA and FINRA, File a.m. and 3 p.m. Copies of the proposed 17(d) 4 or Section 19(g)(2) 5 of the Act. No. 4–597, to be effective if the 17d–2 Plan also will be available for Without this relief, the statutory Commission finds that the plan is inspection and copying at the principal obligation of each individual SRO could necessary or appropriate in the public office of the EDGA and FINRA. All result in a pattern of multiple interest and for the protection of comments received will be posted examinations of broker-dealers that investors, to foster cooperation and without change; the Commission does maintain memberships in more than one coordination among self-regulatory not edit personal identifying SRO (‘‘common members’’). Such organizations, or to remove information from submissions. You regulatory duplication would add impediments to and foster the should submit only information that unnecessary expenses for common development of the national market you wish to make available publicly. All members and their SROs. system and a national system for the submissions should refer to File Section 17(d)(1) of the Act 6 was clearance and settlement of securities Number 4–597 and should be submitted intended, in part, to eliminate transactions and in conformity with the on or before April 28, 2010. unnecessary multiple examinations and factors set forth in Section 17(d) of the For the Commission, by the Division of regulatory duplication.7 With respect to Act. Trading and Markets, pursuant to delegated a common member, Section 17(d)(1) authority.19 authorizes the Commission, by rule or IV. Solicitation of Comments Florence E. Harmon, order, to relieve an SRO of the In order to assist the Commission in Deputy Secretary. responsibility to receive regulatory determining whether to approve the [FR Doc. 2010–8367 Filed 4–12–10; 8:45 am] reports, to examine for and enforce proposed 17d–2 Plan and to relieve BILLING CODE 8011–01–P compliance with applicable statutes, EDGA of the responsibilities which rules, and regulations, or to perform would be assigned to FINRA, interested other specified regulatory functions. persons are invited to submit written SECURITIES AND EXCHANGE To implement Section 17(d)(1), the data, views, and arguments concerning COMMISSION Commission adopted two rules: Rule the foregoing. Comments may be 17d–1 and Rule 17d–2 under the Act.8 submitted by any of the following [Release No. 34–61861; File No. 4–598] Rule 17d–1 authorizes the Commission methods: Program for Allocation of Regulatory to name a single SRO as the designated examining authority (‘‘DEA’’) to examine Electronic Comments Responsibilities Pursuant to Rule 17d– 2; Notice of Filing of Proposed Plan for common members for compliance with • Use the Commission’s Internet the Allocation of Regulatory the financial responsibility comment form (http://www.sec.gov/ Responsibilities Between EDGX requirements imposed by the Act, or by rules/sro.shtml); or Commission or SRO rules.9 When an • Send an e-mail to rule- Exchange, Inc. and the Financial Industry Regulatory Authority, Inc. SRO has been named as a common [email protected]. Please include File member’s DEA, all other SROs to which Number 4–597 on the subject line. April 7, 2010. the common member belongs are Paper Comments Pursuant to Section 17(d) of the relieved of the responsibility to examine Securities Exchange Act of 1934 the firm for compliance with the • Send paper comments in triplicate (‘‘Act’’),1 and Rule 17d–2 thereunder,2 applicable financial responsibility rules. to Secretary, Securities and Exchange notice is hereby given that on April 2, On its face, Rule 17d–1 deals only with Commission, 100 F Street, NE., 2010, EDGX Exchange, Inc. (‘‘EDGX’’) an SRO’s obligations to enforce member Washington, DC 20549–1090. and the Financial Industry Regulatory compliance with financial responsibility All submissions should refer to File Authority, Inc. (‘‘FINRA’’) (together with requirements. Rule 17d–1 does not Number 4–597. This file number should EDGX, the ‘‘Parties’’) filed with the relieve an SRO from its obligation to be included on the subject line if e-mail Securities and Exchange Commission examine a common member for is used. To help the Commission (‘‘Commission’’) a plan for the allocation compliance with its own rules and process and review your comments of regulatory responsibilities, dated provisions of the Federal securities laws more efficiently, please use only one March 31, 2010 (the ‘‘17d–2 Plan’’). The governing matters other than financial method. The Commission will post all Commission is publishing this notice to responsibility, including sales practices comments on the Commission’s Internet solicit comments on the 17d–2 Plan and trading activities and practices. Web site (http://www.sec.gov/rules/ from interested persons. To address regulatory duplication in other.shtml). Copies of the submission, these and other areas, the Commission all subsequent amendments, all written I. Introduction statements with respect to the proposed Section 19(g)(1) of the Act,3 among 4 15 U.S.C. 78q(d). 17d–2 Plan that are filed with the other things, requires every self- 5 15 U.S.C. 78s(g)(2). Commission, and all written regulatory organization (‘‘SRO’’) 6 15 U.S.C. 78q(d)(1). communications relating to the registered as either a national securities 7 See Securities Act Amendments of 1975, Report proposed 17d–2 Plan between the exchange or registered national of the Senate Committee on Banking, Housing, and Commission and any person, other than Urban Affairs to Accompany S. 249, S. Rep. No. 94– 75, 94th Cong., 1st Session 32 (1975). those that may be withheld from the 19 17 CFR 200.30–3(a)(34). 8 17 CFR 240.17d–1 and 17 CFR 240.17d–2, 1 15 U.S.C. 78q(d). respectively. 17 15 U.S.C. 78q(d)(1). 2 17 CFR 240.17d–2. 9 See Securities Exchange Act Release No. 12352 18 17 CFR 240.17d–2. 3 15 U.S.C. 78s(g)(1). (April 20, 1976), 41 FR 18808 (May 7, 1976).
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adopted Rule 17d–2 under the Act.10 Common Rules would not include the between self-regulatory organizations to Rule 17d–2 permits SROs to propose application of any EDGX Rule or FINRA allocate regulatory responsibility to joint plans for the allocation of rule, or any rule or regulation under the eliminate regulatory duplication. FINRA regulatory responsibilities with respect Act, to the extent that it pertains to and EDGX may be referred to to their common members. Under violations of insider trading activities, individually as a ‘‘party’’ and together as paragraph (c) of Rule 17d–2, the because such matters are covered by a the ‘‘parties.’’ Commission may declare such a plan separate multiparty agreement under Whereas, FINRA and EDGX desire to effective if, after providing for Rule 17d–2.13 In the event that a Dual reduce duplication in the examination appropriate notice and comment, it Member is the subject of an of their Dual Members (as defined determines that the plan is necessary or investigation relating to a transaction on herein) and in the filing and processing appropriate in the public interest and EDGX, the 17d–2 Plan acknowledges of certain registration and membership for the protection of investors; to foster that EDGX may, in its discretion, records; and cooperation and coordination among the exercise concurrent jurisdiction and Whereas, FINRA and EDGX desire to SROs; to remove impediments to, and responsibility for such matter.14 execute an agreement covering such foster the development of, a national Under the 17d–2 Plan, EDGX would subjects pursuant to the provisions of market system and a national clearance retain full responsibility for Rule 17d–2 under the Exchange Act and and settlement system; and is in surveillance, examination, investigation, to file such agreement with the conformity with the factors set forth in and enforcement with respect to trading Securities and Exchange Commission Section 17(d) of the Act. Commission activities or practices involving EDGX’s (the ‘‘SEC’’ or ‘‘Commission’’) for its approval of a plan filed pursuant to Rule own marketplace, including, without approval. 17d–2 relieves an SRO of those limitation, registration pursuant to its Now, therefore, in consideration of regulatory responsibilities allocated by unique rules (i.e., non-common rules); the mutual covenants contained the plan to another SRO. its duties as a DEA pursuant to Rule hereinafter, FINRA and EDGX hereby 17d–1 under the Act; and any rules that agree as follows: II. Proposed 17d–2 Plan are not Common Rules, except for EDGX 1. Definitions. Unless otherwise The proposed 17d–2 Plan is intended rules for any broker-dealer subsidiary of defined in this Agreement or the context to reduce regulatory duplication for Direct Edge Holdings LLC.15 otherwise requires, the terms used in firms that are common members of both The text of the proposed 17d–2 Plan this Agreement shall have the same EDGX and FINRA.11 Pursuant to the is as follows: meaning as they have under the Exchange Act and the rules and proposed 17d–2 Plan, FINRA would Agreement Between FINRA and EDGX assume certain examination and regulations thereunder. As used in this Exchange, Inc. Pursuant to Rule 17d–2 Agreement, the following terms shall enforcement responsibilities for Under the Securities Exchange Act of common members with respect to have the following meanings: 1934 (a) ‘‘EDGX Rules’’ or ‘‘FINRA Rules’’ certain applicable laws, rules, and This Agreement, by and between the shall mean: (i) The rules of EDGX, or (ii) regulations. the rules of FINRA, respectively, as the The text of the 17d–2 Plan delineates Financial Industry Regulatory Authority ‘‘ ’’ rules of an exchange or association are the proposed regulatory responsibilities ( FINRA ) and EDGX Exchange, Inc. ‘‘ ’’ defined in Exchange Act Section between the Parties. Included in the ( EDGX ), is made this 31st day of ‘‘ ’’ 3(a)(27). 17d–2 Plan is an attachment (‘‘EDGX March, 2010 (the Agreement ), pursuant to Section 17(d) of the (b) ‘‘Common Rules’’ shall mean the Certification for 17d–2 Agreement with Securities Exchange Act of 1934 (the EDGX Rules that are substantially FINRA’’ referred to herein as the ‘‘Exchange Act’’) and Rule 17d–2 similar to the applicable FINRA Rules ‘‘Certification’’) that lists every EDGX thereunder which permits agreements and certain provisions of the Exchange rule and select Federal securities laws, Act and SEC rules set forth on Exhibit rules and regulations for which FINRA Responsibilities). Paragraph 2 of the 17d–2 Plan 1 in that examination for compliance would bear responsibility under the provides that annually, or more frequently as with such provisions and rules would 17d–2 Plan for overseeing and enforcing required by changes in either EDGX rules or FINRA rules, the parties shall review and update, if not require FINRA to develop one or with respect to EDGX members that are more new examination standards, also members of FINRA and the necessary, the list of Common Rules. Further, paragraph 3 of the Plan provides that EDGX shall modules, procedures, or criteria in order ‘‘ associated persons therewith ( Dual furnish FINRA with a list of Dual Members, and to analyze the application of the such ’’ shall update the list no less frequently than once Members ). provisions or rule, or a Dual Member’s Specifically, under the 17d–2 Plan, each calendar quarter. 13 activity, conduct, or output in relation FINRA would assume examination and See Securities Exchange Act Release No. 58350 (August 13, 2008), 73 FR 48247 (August 18, 2008) to such rule; provided however, enforcement responsibility relating to (File No. 4–566) (notice of filing of proposed plan). Common Rules shall not include the compliance by Dual Members with the See also Securities Exchange Act Release Nos. application of the SEC, EDGX or FINRA rules of EDGX that are substantially 58536 (September 12, 2008) (File No. 4–566) (order rules as they pertain to violations of similar to the applicable rules of FINRA, approving and declaring effective the plan) and 58806 (October 17, 2008) (File No. 4–566) (order insider trading activities, which is as well as any provisions of the Federal approving and declaring effective an amendment to covered by a separate 17d–2 Agreement securities laws and the rules and the plan). The Certification identifies several by and among the American Stock regulations thereunder delineated in the Common Rules that may also be addressed in the Exchange, LLC, Boston Stock Exchange, Certification (‘‘Common Rules’’).12 context of regulating insider trading activities pursuant to the proposed separate multiparty Inc., Chicago Board Options Exchange, agreement. Inc., Chicago Stock Exchange, Inc., 10 See Securities Exchange Act Release No. 12935 14 See paragraph 6 of the proposed 17d–2 Plan. Financial Industry Regulatory (October 28, 1976), 41 FR 49091 (November 8, 15 Apparent violations of such EDGX rules by any 1976). broker-dealer subsidiary of Direct Edge Holdings Authority, Inc., International Securities 11 The proposed 17d–2 Plan refers to these LLC will be processed by, and enforcement Exchange, LLC, The NASDAQ Stock common members as ‘‘Dual Members.’’ See proceedings will be conducted by, FINRA. See Market LLC, National Stock Exchange, Paragraph 1(c) of the proposed 17d–2 Plan. paragraphs 2(d) and 6 of the 17d–2 Plan. As of the Inc., New York Stock Exchange, LLC, 12 See paragraph 1(b) of the 17d–2 plan (defining date of this Agreement, Direct Edge ECN LLC is the Common Rules). See also paragraph 1(f) of the only broker-dealer susbsidiary of Direct Edge NYSE Arca Inc., NYSE Regulation, Inc., proposed 17d–2 Plan (defining Regulatory Holdings LLC. and Philadelphia Stock Exchange, Inc.
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effective October 17, 2008, as may be Responsibilities’’ does not include, and (b) In the event that EDGX becomes amended from time to time. EDGX shall retain full responsibility for aware of apparent violations of any (c) ‘‘Dual Members’’ shall mean those (unless otherwise addressed by separate Common Rules, discovered pursuant to EDGX members that are also members of agreement or rule) the following: the performance of the Retained FINRA and the associated persons (a) Surveillance, examination, Responsibilities, EDGX shall notify therewith. investigation and enforcement with FINRA of those apparent violations and (d) ‘‘Effective Date’’ shall be the date respect to trading activities or practices such matters shall be handled by FINRA this Agreement is approved by the involving EDGX’s own marketplace; as provided in this Agreement. Commission. (b) Registration pursuant to its (c) With respect to apparent violations (e) ‘‘Enforcement Responsibilities’’ applicable rules of associated persons of any EDGX Rules by any broker-dealer shall mean the conduct of appropriate (i.e., registration rules that are not subsidiary of EDGX’s holding company, proceedings, in accordance with Common Rules); Direct Edge Holdings LLC, FINRA shall FINRA’s Code of Procedure (the Rule (c) Discharge of its duties and not make referrals to EDGX pursuant to 9000 Series) and other applicable obligations as a Designated Examining this paragraph 6. Such apparent FINRA procedural rules, to determine Authority pursuant to Rule 17d–1 under violations shall be processed by, and whether violations of Common Rules the Exchange Act, if applicable; and enforcement proceedings in respect have occurred, and if such violations are (d) Any EDGX Rules that are not thereto will be conducted by, FINRA as deemed to have occurred, the Common Rules, except for EDGX Rules provided in this Agreement. for any broker-dealer subsidiary of imposition of appropriate sanctions as (d) Apparent violations of Common specified under FINRA’s Code of Direct Edge Holdings LLC, as provided Rules and FINRA rules shall be Procedure and sanctions guidelines. in paragraph 6. processed by, and enforcement (f) ‘‘Regulatory Responsibilities’’ shall 3. Dual Members. Prior to the proceedings in respect thereto shall be mean the examination responsibilities Effective Date, EDGX shall furnish conducted by FINRA as provided and Enforcement Responsibilities FINRA with a current list of Dual hereinbefore; provided, however, that in relating to compliance by the Dual Members, which shall be updated no the event a Dual Member is the subject Members with the Common Rules and less frequently than once each quarter. the provisions of the Exchange Act and 4. No Charge. There shall be no of an investigation relating to a the rules and regulations thereunder, charge to EDGX by FINRA for transaction on EDGX, EDGX may in its and other applicable laws, rules and performing the Regulatory discretion assume concurrent regulations, each as set forth on Exhibit Responsibilities and Enforcement jurisdiction and responsibility. 1 attached hereto. Responsibilities under this Agreement (e) Each party agrees to make 2. Regulatory and Enforcement except as hereinafter provided. FINRA available promptly all files, records and Responsibilities. FINRA shall assume shall provide EDGX with ninety (90) witnesses necessary to assist the other Regulatory Responsibilities and days advance written notice in the event in its investigation or proceedings. Enforcement Responsibilities for Dual FINRA decides to impose any charges to 7. Continued Assistance. Members. Attached as Exhibit 1 to this EDGX for performing the Regulatory (a) FINRA shall make available to Agreement and made part hereof, EDGX Responsibilities under this Agreement. EDGX all information obtained by furnished FINRA with a current list of If FINRA determines to impose a charge, FINRA in the performance by it of the Common Rules and certified to FINRA EDGX shall have the right at the time of Regulatory Responsibilities hereunder that such rules are substantially similar the imposition of such charge to in respect to the Dual Members subject to the corresponding FINRA rule (the terminate this Agreement; provided, to this Agreement. In particular, and not ‘‘Certification’’). FINRA hereby agrees however, that FINRA’s Regulatory in limitation of the foregoing, FINRA that the rules listed in the Certification Responsibilities under this Agreement shall furnish EDGX any information it are Common Rules as defined in this shall continue until the Commission obtains about Dual Members which Agreement. Each year following the approves the termination of this reflects adversely on their financial Effective Date of this Agreement, or Agreement. condition. EDGX shall make available to more frequently if required by changes 5. Applicability of Certain Laws, FINRA any information coming to its in either the rules of EDGX or FINRA, Rules, Regulations or Orders. attention that reflects adversely on the EDGX shall submit an updated list of Notwithstanding any provision hereof, financial condition of Dual Members or Common Rules to FINRA for review this Agreement shall be subject to any indicates possible violations of which shall add EDGX Rules not statute, or any rule or order of the SEC. applicable laws, rules or regulations by included in the current list of Common To the extent such statute, rule, or order such firms. Rules that qualify as Common Rules as is inconsistent with one or more (b) The parties agree that documents defined in this Agreement; delete EDGX provisions of this Agreement, the or information shared shall be held in Rules included in the current list of statute, rule, or order shall supersede confidence, and used only for the Common Rules that no longer qualify as the provision(s) hereof to the extent purposes of carrying out their respective Common Rules as defined in this necessary to be properly effectuated and regulatory obligations. Neither party Agreement; and confirm that the the provision(s) hereof in that respect shall assert regulatory or other remaining rules on the current list of shall be null and void. privileges as against the other with Common Rules continue to be EDGX 6. Notification of Violations. respect to documents or information Rules that qualify as Common Rules as (a) In the event that FINRA becomes that is required to be shared pursuant to defined in this Agreement. Within 30 aware of apparent violations of any this Agreement. days of receipt of such updated list, EDGX Rules, which are not listed as (c) The sharing of documents or FINRA shall confirm in writing whether Common Rules, discovered pursuant to information between the parties the rules listed in any updated list are the performance of the Regulatory pursuant to this Agreement shall not be Common Rules as defined in this Responsibilities assumed hereunder, deemed a waiver against third parties of Agreement. Notwithstanding anything FINRA shall notify EDGX of those regulatory or other privileges relating to herein to the contrary, it is explicitly apparent violations for such response as the discovery of documents or understood that the term ‘‘Regulatory EDGX deems appropriate. information.
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8. Statutory Disqualifications. When procedures as the parties may mutually 17d–2 thereunder, FINRA and EDGX FINRA becomes aware of a statutory agree upon. Judgment on the award join in requesting the Commission, disqualification as defined in the rendered by the arbitrator(s) may be upon its approval of this Agreement or Exchange Act with respect to a Dual entered in any court having jurisdiction. any part thereof, to relieve EDGX of any Member, FINRA shall determine Each party acknowledges that the timely and all responsibilities with respect to pursuant to Sections 15A(g) and/or and complete performance of its matters allocated to FINRA pursuant to Section 6(c) of the Exchange Act the obligations pursuant to this Agreement this Agreement; provided, however, that acceptability or continued applicability is critical to the business operations of this Agreement shall not be effective of the person to whom such the other party. In the event of a dispute until the Effective Date. disqualification applies and keep EDGX between the parties, the parties shall 18. Severability. Any term or advised of its actions in this regard for continue to perform their respective provision of this Agreement that is such subsequent proceedings as EDGX obligations under this Agreement in invalid or unenforceable in any may initiate. good faith during the resolution of such jurisdiction shall, as to such 9. Customer Complaints. EDGX shall dispute unless and until this Agreement jurisdiction, be ineffective to the extent forward to FINRA copies of all customer is terminated in accordance with its of such invalidity or unenforceability complaints involving Dual Members provisions. Nothing in Section 13 shall without rendering invalid or received by EDGX relating to FINRA’s interfere with a party’s right to unenforceable the remaining terms and Regulatory Responsibilities under this terminate this Agreement as set forth provisions of this Agreement or Agreement. It shall be FINRA’s herein. affecting the validity or enforceability of responsibility to review and take 14. Notification of Members. EDGX any of the terms or provisions of this appropriate action in respect to such and FINRA shall notify Dual Members Agreement in any other jurisdiction. complaints. of this Agreement after the Effective 19. Counterparts. This Agreement 10. Advertising. FINRA shall assume Date by means of a uniform joint notice. may be executed in one or more responsibility to review the advertising 15. Amendment. This Agreement may counterparts, each of which shall be of Dual Members subject to the be amended in writing duly approved deemed an original, and such Agreement, provided that such material by each party. All such amendments counterparts together shall constitute is filed with FINRA in accordance with must be filed with and approved by the one and the same instrument. FINRA’s filing procedures and is Commission before they become In witness whereof, each party has accompanied with any applicable filing effective. executed or caused this Agreement to be fees set forth in FINRA Rules. 16. Limitation of Liability. Neither executed on its behalf by a duly 11. No Restrictions on Regulatory FINRA nor EDGX nor any of their authorized officer as of the date first Action. Nothing contained in this respective directors, governors, officers written above. Agreement shall restrict or in any way or employees shall be liable to the other EDGX EXCHANGE, INC. encumber the right of either party to party to this Agreement for any liability, conduct its own independent or loss or damage resulting from or By: lllllllllllllllllll concurrent investigation, examination claimed to have resulted from any Name: or enforcement proceeding of or against delays, inaccuracies, errors or omissions Title: Dual Members, as either party, in its with respect to the provision of FINANCIAL INDUSTRY REGULATORY sole discretion, shall deem appropriate Regulatory Responsibilities as provided AUTHORITY or necessary. hereby or for the failure to provide any By: lllllllllllllllllll 12. Termination. This Agreement may such responsibility, except with respect Name: be terminated by EDGX or FINRA at any to such liability, loss or damages as time upon the approval of the shall have been suffered by one or the Title: Commission after one (1) year’s written other of FINRA or EDGX and caused by EDGX Exchange, Inc. Certification notice to the other party, except as the willful misconduct of the other provided in paragraph 4. party or their respective directors, EDGX Certification for 17d–2 Agreement 13. Arbitration. In the event of a governors, officers or employees. No With FINRA dispute between the parties as to the warranties, express or implied, are made EDGX Exchange, Inc. hereby certifies operation of this Agreement, EDGX and by FINRA or EDGX with respect to any that the requirements contained in the FINRA hereby agree that any such of the responsibilities to be performed rules listed below are identical to, or dispute shall be settled by arbitration in by each of them hereunder. substantially similar to, the comparable Washington, DC, in accordance with the 17. Relief From Responsibility. FINRA (NASD) Rule, Exchange Act rules of the American Arbitration Pursuant to Sections 17(d)(1)(A) and provision or SEC rule identified Association then in effect, or such other 19(g) of the Exchange Act and Rule (‘‘Common Rules’’).
Rule 2.5, Interpretation and Policy .04, The Regulatory Element of NASD Rule 1120(a)(1)–(4) Continuing Education Requirements. Continuing Education Requirement for Authorized Traders of Mem- bers. Rule 3.1 Business Conduct of Members ...... FINRA Rule 2010 Standards of Commercial Honor and Principles of Trade.* Rule 3.2 Violations Prohibited 16 ...... FINRA Rule 2010 Standards of Commercial Honor and Principles of Trade and 3010 Supervision.* Rule 3.3 Use of Fraudulent Devices ...... FINRA Rule 2020 Use of Manipulative, Deceptive or Other Fraudulent Device. Rule 3.5(a) Advertising Practices ...... NASD Rule 2210(d)(1)(B) Communications with the Public. Rule 3.5(b) Advertising Practices ...... NASD Rule 2210(d)(2)(C) Communications with the Public. Rule 3.5(c) Advertising Practices ...... NASD Rule 2210(d)(1) Communications with the Public. Rule 3.5(d) Advertising Practices ...... NASD Rule 2210(b)(1) Communications with the Public.
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Rule 3.5(e) Advertising Practices ...... NASD Rule 2210(b)(2)(A) and 2210(c) Communications with the Pub- lic. Rule 3.5(f) Advertising Practices ...... NASD Rule 2210(d)(2)(A) and 2210(d)(1)(E) Communications with the Public. Rule 3.5(g) Advertising Practices ...... NASD Rule 2210(d)(1) Communications with the Public. Rule 3.5(h) Advertising Practices ...... NASD Rule 2210(d)(1) Communications with the Public. Rule 3.6 Fair Dealing with Customers ...... NASD Rule IM–2310–2(b)(1), (2), (4)(A)(i), (4)(A)(iii), (4)(A)(iv), and (5) Fair Dealing with Customers. Rule 3.7(a) Recommendations to Customers ...... NASD Rule 2310(a) Recommendations to Customers (Suitability). Rule 3.8(a) The Prompt Receipt and Delivery of Securities ...... NASD Rule 3370 Purchases. Rule 3.8(b) The Prompt Receipt and Delivery of Securities ...... SEC Regulation SHO. Rule 3.9 Charges for Services Performed ...... NASD Rule 2430 Charges for Services Performed. Rule 3.10 Use of Information ...... FINRA Rule 2060 Use of Information Obtained in Fiduciary Capacity. Rule 3.11 Publication of Transactions and Quotations ...... FINRA Rule 5210 Publication of Transactions and Quotations. Rule 3.12 Offers at Stated Prices ...... FINRA Rule 5220 Offers at Stated Prices. Rule 3.14 Disclosure on Confirmations ...... NASD Rule 2230 Confirmations and SEA Rule 10b–10 Confirmation of Transactions. Rule 3.15 Disclosure of Control ...... FINRA Rule 2262 Disclosure of Control Relationship with Issuer. Rule 3.16 Discretionary Accounts ...... NASD Rule 2510 Discretionary Accounts. Rule 3.17 Customer’s Securities or Funds ...... FINRA Rule 2150(a) Improper Use of Customers’ Securities or Funds; Prohibition Against Guarantees and Sharing in Accounts. Rule 3.18 Prohibition Against Guarantees ...... FINRA Rule 2150(b) Improper Use of Customers’ Securities or Funds; Prohibition Against Guarantees and Sharing in Accounts. Rule 3.19 Sharing in Accounts; Extent Permissible ...... FINRA Rule 2150(c)(1) Improper Use of Customers’ Securities or Funds; Prohibition Against Guarantees and Sharing in Accounts. Rule 4.1 Requirements ...... Section 17 of the Exchange Act and the Rules Thereunder. Rule 4.3 Record of Written Complaints ...... NASD Rule 3110(d) and (e) Books and Records.** Rule 4.4 Disclosure of Financial Condition ...... NASD Rule 2270 Disclosure of Financial Condition to Customers & SEA Rule 17a–5(c). Rule 5.1 Written Procedures ...... NASD Rule 3010(b)(1) Supervision—Written Procedures.* Rule 5.2 Responsibility of Members ...... NASD Rule 3010(a)(4) and (b)(4) Supervision.* Rule 5.3 Records ...... NASD Rule 3010(a)(1), (b) and (c) Supervision.* Rule 5.4 Review of Activities ...... NASD Rule 3010(c)(1) Supervision—Internal Inspections.* Rule 5.5 Information Barrier Procedures ...... Section 15(f) of Exchange Act. Rule 5.6 Anti-Money Laundering Compliance Program ...... FINRA Rule 3310 Anti-Money Laundering Compliance Program. Rule 9.3 Predispute Arbitration Agreements ...... NASD Rule 3110(f) Books and Records (Requirements When Using Predispute Arbitration Agreements for Customer Accounts). Rule 12.3 Excessive Sales by a Member ...... FINRA Rule 6140(c) Other Trading Practices.*** Rule 12.5 Dissemination of False Information ...... FINRA Rule 6140(e) Other Trading Practices.*** Rule 12.11 Best Execution ...... NASD Rule 2320 Best Execution and Interpositioning. Rule 12.13 Trading Ahead of Research Reports ...... FINRA Rule 5280 Trading Ahead of Research Reports. Rule 13.3 Forwarding of Issuer Materials ...... FINRA Rule 2251 Forwarding of Proxy and Other Issuer-Related Mate- rials. 16 FINRA shall only have Regulatory Responsibility regarding the first phrase of the EDGX rule regarding prohibitions from violating the Securi- ties Exchange Act of 1934 and the rules and regulations thereunder; responsibility for the remainder of the Rule shall remain with EDGX.
In addition, the following provisions shall ** FINRA shall only have any Regulatory necessary or appropriate in the public be part of this 17d–2 Agreement: Responsibilities for the first three years interest and for the protection of regarding EDGX’s five year requirement of investors, to foster cooperation and SEC Rules keeping and preserving a file of all written Rule 200 of Regulation SHO—Definition of complaints of customers and action taken by coordination among self-regulatory ‘‘Short Sale’’ and Marking Requirements. the Member in respect thereof. organizations, or to remove Rule 203 of Regulation SHO—Borrowing *** FINRA shall not have any Regulatory impediments to and foster the and Delivery Requirements. Responsibilities for these rules as they development of the national market Rule 606 of Regulation NMS—Disclosure pertain to trading practices involving system and a national system for the of Order Routing Information. securities that do not meet the definition of NMS stock as defined in Rule 600(b)(47) of clearance and settlement of securities Rule 607 of Regulation NMS—Customer transactions and in conformity with the Account Statements. SEC Regulation NMS. factors set forth in Section 17(d) of the * FINRA shall not have any Regulatory * * * * * Responsibilities for these rules as they Act. III. Date of Effectiveness of the pertain to violations of insider trading IV. Solicitation of Comments activities, which is covered by a separate Proposed Plan and Timing for 17d–2 Agreement by and among the Commission Action In order to assist the Commission in American Stock Exchange, LLC, Boston Stock Pursuant to Section 17(d)(1) of the determining whether to approve the Exchange, Inc., Chicago Board Options Act 17 and Rule 17d–2 thereunder,18 proposed 17d–2 Plan and to relieve Exchange, Inc., Chicago Stock Exchange, Inc., after April 28, 2010, the Commission EDGX of the responsibilities which Financial Industry Regulatory Authority, may, by written notice, declare the plan Inc., International Securities Exchange, LLC, would be assigned to FINRA, interested The NASDAQ Stock Market LLC, National submitted by EDGX and FINRA, File persons are invited to submit written Stock Exchange, Inc., New York Stock No. 4–598, to be effective if the data, views, and arguments concerning Exchange, LLC, NYSE Arca Inc., NYSE Commission finds that the plan is the foregoing. Comments may be Regulation, Inc., and Philadelphia Stock submitted by any of the following Exchange, Inc. effective October 17, 2008, as 17 15 U.S.C. 78q(d)(1). may be amended from time to time. 18 17 CFR 240.17d–2. methods:
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Electronic Comments SECURITIES AND EXCHANGE authorizes the Commission, by rule or order, to relieve an SRO of the • COMMISSION Use the Commission’s Internet responsibility to receive regulatory [Release No. 34–61853; File No. 4–596] comment form (http://www.sec.gov/ reports, to examine for and enforce rules/sro.shtml); or Program for Allocation of Regulatory compliance with applicable statutes, • Send an e-mail to rule- Responsibilities Pursuant to Rule 17d– rules, and regulations, or to perform [email protected]. Please include File 2; Notice of Filing of Proposed Plan for other specified regulatory functions. Number 4–598 on the subject line. the Allocation of Regulatory To implement Section 17(d)(1), the Responsibilities Between the Paper Comments Commission adopted two rules: Rule International Securities Exchange, LLC 17d–1 and Rule 17d–2 under the Act.8 • Send paper comments in triplicate and the Financial Industry Regulatory Rule 17d–1 authorizes the Commission to Secretary, Securities and Exchange Authority, Inc. Concerning Ballista to name a single SRO as the designated Securities LLC Commission, 100 F Street, NE., examining authority (‘‘DEA’’) to examine Washington, DC 20549–1090. April 6, 2010. common members for compliance with All submissions should refer to File Pursuant to Section 17(d) of the the financial responsibility Number 4–598. This file number should Securities Exchange Act of 1934 requirements imposed by the Act, or by ‘‘ ’’ 1 2 Commission or SRO rules.9 When an be included on the subject line if e-mail ( Act ), and Rule 17d–2 thereunder, notice is hereby given that on March 19, SRO has been named as a common is used. To help the Commission 2010, the International Securities member’s DEA, all other SROs to which process and review your comments Exchange, LLC (‘‘ISE’’) and the Financial the common member belongs are more efficiently, please use only one Industry Regulatory Authority, Inc. relieved of the responsibility to examine method. The Commission will post all (‘‘FINRA’’) (together with the ISE, the the firm for compliance with the comments on the Commission’s Internet ‘‘Parties’’) filed with the Securities and applicable financial responsibility rules. Web site (http://www.sec.gov/rules/ Exchange Commission (‘‘Commission’’) a On its face, Rule 17d–1 deals only with other.shtml). Copies of the submission, plan for the allocation of regulatory an SRO’s obligations to enforce member all subsequent amendments, all written responsibilities (the ‘‘17d–2 Plan’’). The compliance with financial responsibility statements with respect to the proposed Commission is publishing this notice to requirements. Rule 17d–1 does not 17d–2 Plan that are filed with the solicit comments on the 17d–2 Plan relieve an SRO from its obligation to Commission, and all written from interested persons. examine a common member for communications relating to the I. Introduction compliance with its own rules and proposed 17d–2 Plan between the Section 19(g)(1) of the Act,3 among provisions of the Federal securities laws Commission and any person, other than governing matters other than financial those that may be withheld from the other things, requires every self- regulatory organization (‘‘SRO’’) responsibility, including sales practices public in accordance with the and trading activities and practices. provisions of 5 U.S.C. 552, will be registered as either a national securities available for Web site viewing and exchange or national securities To address regulatory duplication in association to examine for, and enforce printing in the Commission’s Public these and other areas, the Commission compliance by, its members and persons 10 Reference Room, 100 F Street, NE., adopted Rule 17d–2 under the Act. associated with its members with the Washington, DC 20549, on official Rule 17d–2 permits SROs to propose Act, the rules and regulations business days between the hours of 10 joint plans for the allocation of thereunder, and the SRO’s own rules, regulatory responsibilities with respect a.m. and 3 p.m. Copies of the proposed unless the SRO is relieved of this 17d–2 Plan also will be available for to their common members. Under responsibility pursuant to Section paragraph (c) of Rule 17d–2, the inspection and copying at the principal 4 5 17(d) or Section 19(g)(2) of the Act. Commission may declare such a plan office of the EDGX and FINRA. All Without this relief, the statutory effective if, after providing for notice comments received will be posted obligation of each individual SRO could and comment, it determines that the without change; the Commission does result in a pattern of multiple plan is necessary or appropriate in the not edit personal identifying examinations of broker-dealers that public interest and for the protection of information from submissions. You maintain memberships in more than one investors, to foster cooperation and should submit only information that SRO (‘‘common members’’). Such coordination among the SROs, to you wish to make available publicly. All regulatory duplication would add remove impediments to, and foster the submissions should refer to File unnecessary expenses for common development of, a national market Number 4–598 and should be submitted members and their SROs. system and a national clearance and Section 17(d)(1) of the Act 6 was on or before April 28, 2010. settlement system, and is in conformity intended, in part, to eliminate For the Commission, by the Division of with the factors set forth in Section unnecessary multiple examinations and Trading and Markets, pursuant to delegated regulatory duplication.7 With respect to 17(d) of the Act. Commission approval authority.19 a common member, Section 17(d)(1) of a plan filed pursuant to Rule 17d–2 Florence E. Harmon, relieves an SRO of those regulatory Deputy Secretary. 1 15 U.S.C. 78q(d). responsibilities allocated by the plan to [FR Doc. 2010–8368 Filed 4–12–10; 8:45 am] 2 17 CFR 240.17d–2. another SRO. 3 15 U.S.C. 78s(g)(1). BILLING CODE 8011–01–P 4 15 U.S.C. 78q(d). 8 17 CFR 240.17d–1 and 17 CFR 240.17d–2, 5 15 U.S.C. 78s(g)(2). respectively. 6 15 U.S.C. 78q(d)(1). 9 See Securities Exchange Act Release No. 12352 7 See Securities Act Amendments of 1975, Report (April 20, 1976), 41 FR 18808 (May 7, 1976). of the Senate Committee on Banking, Housing, and 10 See Securities Exchange Act Release No. 12935 Urban Affairs to Accompany S. 249, S. Rep. No. 94– (October 28, 1976), 41 FR 49091 (November 8, 1976) 19 17 CFR 200.30–3(a)(34). 75, 94th Cong., 1st Session 32 (1975). (‘‘Rule 17d–2 Adopting Release’’).
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II. Proposed Plan ISE would retain full responsibility for to file such agreement with the On June 5, 2009, ISE Holdings, Inc. surveillance, examination, investigation, Securities and Exchange Commission (‘‘ISE Holdings’’), the parent of ISE, and enforcement with respect to trading (the ‘‘SEC’’ or ‘‘Commission’’) for its entered into a Membership Purchase activities or practices involving ISE’s approval. Agreement (‘‘Purchase Agreement’’) with own marketplace; registration pursuant Now, therefore, in consideration of Optifreeze LLC, a Delaware Limited to its unique rules (i.e., registration rules the mutual covenants contained Liability Company (‘‘Optifreeze’’). ISE that are not Common Rules); its duties hereinafter, FINRA and ISE hereby agree Holdings acquired membership interests as a Designated Examining Authority as follows: 1. Definitions. Unless otherwise in Optifreeze by contributing cash to the pursuant to Rule 17d–1 under the Act; defined in this Agreement or the context capital of Optifreeze. As a result of the and any rules that are not substantially otherwise requires, the terms used in purchase, ISE Holdings has an 8.57% similar to the rules of FINRA, except for this Agreement shall have the same membership interest in Optifreeze, ISE rules for any ISE member that acts meaning as they have under the which wholly owns and operates an as an inbound router for the ISE and is Exchange Act and the rules and Electronic Access Member of the ISE, a member of the ISE and FINRA 14 regulations thereunder. As used in this Ballista Securities LLC (‘‘Ballista’’). The (‘‘Inbound Router Member’’). For Agreement, the following terms shall ownership interest of ISE Holdings in purposes of the proposed 17d–2 Plan, Ballista would qualify as an Inbound have the following meanings: Ballista is subject to the conditions set (a) ‘‘ISE Rules’’ or ‘‘FINRA Rules’’ shall forth in the Commission’s approval Router Member. Accordingly, FINRA would be allocated regulatory mean the rules of the ISE or FINRA, order relating to ISE Holdings’ purchase respectively, as the rules of an exchange 11 responsibility for Ballista. of Optifreeze. or association are defined in Exchange Recognizing that the Commission has The text of the 17d–2 Plan is as follows: Act Section 3(a)(27). previously expressed concern regarding (b) ‘‘Common Rules’’ shall mean the (1) the potential for conflicts of interest Agreement Between Financial Industry ISE Rules that are substantially similar in instances where an exchange is Regulatory Authority, Inc. and to the applicable FINRA Rules and affiliated with one of its members, and International Securities Exchange, LLC certain provisions of the Exchange Act (2) the potential for informational Pursuant to Rule 17d–2 Under the and SEC rules set forth on Exhibit 1 in advantages that could place an affiliated Securities Exchange Act of 1934 that examination for compliance with member of an exchange at a competitive This Agreement, by and between the such rules would not require FINRA to advantage vis-a`-vis the other non- Financial Industry Regulatory develop one or more new examination affiliated members, the ISE submitted a Authority, Inc. (‘‘FINRA’’) and the standards, modules, procedures, or proposed rule change to amend ISE Rule International Securities Exchange, LLC criteria in order to analyze the 312 to permit the proposed affiliation (‘‘ISE’’), is made this 8th day of application of the rule, or a Dual subject to several conditions and September, 2009 (the ‘‘Agreement’’), Member’s activity, conduct, or output in limitations, including that a condition pursuant to Section 17(d) of the relation to such rule; provided, that the Exchange shall enter into a plan Securities Exchange Act of 1934 (the however, Common Rules shall not with a non-affiliated self-regulatory ‘‘Exchange Act’’) and Rule 17d–2 include the application of the SEC, ISE organization to regulate and oversee the thereunder which permits agreements or FINRA rules as they pertain to activities of Ballista, pursuant to Rule between self-regulatory organizations to violations of insider trading activities, 12 17d–2 under the Act. allocate regulatory responsibility to which is covered by a separate 17d–2 On March 19, 2010, the Parties eliminate regulatory duplication. FINRA Agreement by and among the American submitted the proposed 17d–2 Plan to and ISE may be referred to individually Stock Exchange, LLC, BATS Exchange, the Commission. The text of the 17d–2 as a ‘‘party’’ and together as the ‘‘parties.’’ Inc., Boston Stock Exchange, Inc., CBOE Plan delineates regulatory Whereas, International Securities Stock Exchange, LLC, Chicago Stock responsibilities between the Parties, Exchange Holdings, Inc. (‘‘ISE Exchange, Inc., Financial Industry including responsibility for ISE rules, Holdings’’), the parent company of ISE, Regulatory Authority, Inc., International with respect to Ballista, which is a maintains an ownership interest in Securities Exchange, LLC, The common member. In particular, under Optifreeze LLC (‘‘Optifreeze’’), the NASDAQ Stock Market LLC, National the 17d–2 Plan, FINRA would assume parent company of Ballista Securities Stock Exchange, Inc., New York Stock examination and enforcement LLC (‘‘Ballista’’). Exchange, LLC, NYSE Arca Inc., NYSE responsibility relating to compliance by Whereas, ISE desires to eliminate Regulation, Inc., and Philadelphia Stock Ballista and persons associated conflicts of interest that would exist if Exchange, Inc. approved by the therewith, with the rules of ISE that are ISE were to regulate Ballista, a member Commission on October 17, 2008, as substantially similar to the rules of of ISE, which operates a broker-dealer, may be amended from time to time. FINRA, as well as any provisions of the which among other things, routes (c) ‘‘Dual Members’’ shall mean those Federal securities laws and the rules inbound orders to ISE. ISE members that are also members of and regulations thereunder delineated Whereas, ISE and FINRA desire to FINRA and the associated persons in the Exhibit 1 to the 17d–2 Plan reduce duplication in the examination therewith, but for purposes of this 13 (‘‘Common Rules’’). In addition, of their Dual Members (as defined Agreement is limited to Ballista and its FINRA would assume regulatory herein); and associated persons. responsibility, with respect to Ballista, Whereas, FINRA and ISE desire to (d) ‘‘Effective Date’’ shall be the date for other ISE rules that do not qualify as execute an agreement covering such this Agreement is approved by the Common Rules. Under the 17d–2 Plan, subjects pursuant to the provisions of Commission. Rule 17d–2 under the Exchange Act and (e) ‘‘Enforcement Responsibilities’’ 11 See Securities Exchange Act Release No. 60598 shall mean the conduct of appropriate (September 1, 2009), 74 FR 46280 (September 8, 14 Apparent violations of such ISE rules by any proceedings, in accordance with the 2009). Inbound Router Member will be processed by, and 12 See Securities Exchange Act Release No. 60382 enforcement proceedings will be conducted by, FINRA Code of Procedure (the Rule (July 24, 2009), 74 FR 38068 (July 30, 2009). FINRA. See paragraphs 2(d) and 5 of the 17d–2 9000 Series) and other applicable 13 See paragraph 2 of the 17d–2 plan. Plan. FINRA procedural rules, to determine
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whether violations of pertinent laws, (b) Registration pursuant to its (b) In the event that ISE becomes rules or regulations have occurred, and applicable rules of associated persons aware of apparent violations of any if such violations are deemed to have (i.e., registration rules that are not Common Rules, discovered pursuant to occurred, the imposition of appropriate Common Rules); the performance of the Retained sanctions as specified under the (c) Discharge of its duties and Responsibilities, ISE shall notify FINRA FINRA’s Code of Procedure and obligations as a Designated Examining of those apparent violations and such sanction guidelines. Authority pursuant to Rule 17d–1 under matters shall be handled by FINRA as (f) ‘‘Regulatory Responsibilities’’ shall the Exchange Act; and provided in this Agreement. mean the examination responsibilities (d) Any ISE Rules that are not (c) Apparent violations of Common and Enforcement Responsibilities Common Rules, except for ISE Rules for Rules, FINRA Rules, Federal securities relating to compliance by the Dual any ISE member that acts as an inbound laws, and rules and regulations Members with the Common Rules and router for the ISE and is a member of the thereunder, shall be processed by, and the provisions of the Exchange Act and ISE and FINRA (‘‘Inbound Router enforcement proceedings in respect the rules and regulations thereunder, Member’’) as provided in paragraph 5. thereto shall be conducted by FINRA as and other applicable laws, rules and As of the date of this Agreement, Direct provided hereinbefore; provided, regulations, each as set forth on Exhibit Edge ECN LLC and Ballista are the only however, that in the event a Dual 1 attached hereto. Inbound Router Members. Member is the subject of an 2. Regulatory and Enforcement 3. No Charge. There shall be no investigation relating to a transaction on Responsibilities. FINRA shall assume charge to ISE by FINRA for performing ISE, ISE may in its discretion assume Regulatory Responsibilities and the Regulatory Responsibilities and concurrent jurisdiction and Enforcement Responsibilities for Enforcement Responsibilities under this responsibility. Ballista, which is a Dual Member. Agreement except as hereinafter (d) Each party agrees to make Attached as Exhibit 1 to this Agreement provided. FINRA shall provide ISE with available promptly all files, records and and made part hereof, ISE furnished ninety (90) days advance written notice witnesses necessary to assist the other FINRA with a current list of Common in the event FINRA decides to impose in its investigation or proceedings. Rules and certified to FINRA that such any charges to ISE for performing the 6. Continued Assistance. rules are substantially similar to the Regulatory Responsibilities under this (a) FINRA shall make available to ISE corresponding FINRA rule (the Agreement. If FINRA determines to all information obtained by FINRA in ‘‘Certification’’). FINRA hereby agrees impose a charge, ISE shall have the right the performance by it of the Regulatory that the rules listed in the Certification at the time of the imposition of such Responsibilities hereunder in respect to are Common Rules as defined in this charge to terminate this Agreement; the Inbound Router Members subject to Agreement. Each year following the provided, however, that FINRA’s this Agreement. In particular, and not in Effective Date of this Agreement, or Regulatory Responsibilities under this limitation of the foregoing, FINRA shall more frequently if required by changes Agreement shall continue until the furnish ISE any information it obtains in either the rules of ISE or FINRA, ISE Commission approves the termination about Inbound Router Members which shall submit an updated list of Common of this Agreement. reflects adversely on their financial Rules to FINRA for review which shall 4. Reassignment of Regulatory condition. ISE shall make available to add ISE Rules not included in the Responsibilities. Notwithstanding any FINRA any information coming to its current list of Common Rules that provision hereof, this Agreement shall attention that reflects adversely on the qualify as Common Rules as defined in be subject to any statute, or any rule or financial condition of Inbound Router this Agreement; delete ISE Rules order of the Commission, or industry Members or indicates possible included in the current list of Common agreement, restructuring the regulatory violations of applicable laws, rules or Rules that no longer qualify as Common framework of the securities industry or regulations by such firms. Rules as defined in this Agreement; and reassigning Regulatory Responsibilities (b) The parties agree that documents confirm that the remaining rules on the between self-regulatory organizations. or information shared shall be held in current list of Common Rules continue To the extent such action is inconsistent confidence, and used only for the to be ISE Rules that qualify as Common with this Agreement, such action shall purposes of carrying out their respective Rules as defined in this Agreement. supersede the provisions hereof to the regulatory obligations. Neither party Within 30 days of receipt of such extent necessary for them to be properly shall assert regulatory or other updated list, FINRA shall confirm in effectuated and the provisions hereof in privileges as against the other with writing whether the rules listed in any that respect shall be null and void. respect to documents or information updated list are Common Rules as 5. Notification of Violations. that is required to be shared pursuant to defined in this Agreement. (a) In the event that FINRA becomes this Agreement. Notwithstanding anything herein to aware of apparent violations of any ISE (c) The sharing of documents or the contrary, it is explicitly understood Rules, which are not listed as Common information between the parties that the term ‘‘Regulatory Rules, discovered pursuant to the pursuant to this Agreement shall not be Responsibilities’’ does not include, and performance of the Regulatory deemed a waiver as against third parties ISE shall retain full responsibility for Responsibilities assumed hereunder, of regulatory or other privileges relating (unless otherwise addressed by separate FINRA shall notify ISE of those to the discovery of documents or agreement or rule) (collectively, the apparent violations for such response as information. ‘‘Retained Responsibilities’’) the ISE deems appropriate. With respect to 7. Statutory Disqualifications. When following: apparent violations of any ISE Rules by FINRA becomes aware of a statutory (a) Surveillance, examination, any Inbound Router Members, FINRA disqualification as defined in the investigation and enforcement with shall not make referrals to ISE pursuant Exchange Act with respect to a Inbound respect to trading activities or practices to this paragraph 5. Such apparent Router Member, FINRA shall determine involving ISE’s own marketplace, violations shall be processed by, and pursuant to Sections 15A(g) and/or including without limitation ISE’s rules enforcement proceedings in respect Section 6(c) of the Exchange Act the relating to the rights and obligations of thereto will be conducted by, FINRA as acceptability or continued applicability market makers; provided in this Agreement. of the person to whom such
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disqualification applies and keep ISE ownership interest in Optifreeze, or (b) delays, inaccuracies, errors or omissions advised of its actions in this regard for the date on which the Commission with respect to the provision of such subsequent proceedings as ISE approves termination of this Agreement Regulatory Responsibilities as provided may initiate. after one (1) year’s written notice by ISE hereby or for the failure to provide any 8. Branch Office Information. FINRA or FINRA to the other party or such such responsibility, except with respect shall also be responsible for processing shorter period as may be agreed to by to such liability, loss or damages as and, if required, acting upon all requests the parties, except as provided in shall have been suffered by one or the for the opening, address changes, and paragraph 3. other of FINRA or ISE and caused by the terminations of branch offices by 13. Arbitration. In the event of a willful misconduct of the other party or Inbound Router Members and any other dispute between the parties as to the their respective directors, governors, applications required of Inbound Router operation of this Agreement, ISE and officers or employees. No warranties, Members with respect to the Common FINRA hereby agree that any such express or implied, are made by FINRA Rules as they may be amended from dispute shall be settled by arbitration in or ISE with respect to any of the time to time. Upon request, FINRA shall Washington, DC in accordance with the responsibilities to be performed by each advise ISE of the opening, address rules of the American Arbitration of them hereunder. change and termination of branch and Association then in effect, or such other 17. Relief From Responsibility. main offices of Inbound Router procedures as the parties may mutually Pursuant to Sections 17(d)(1)(A) and Members and the names of such branch agree upon. Judgment on the award 19(g) of the Exchange Act and Rule 17d– office managers. rendered by the arbitrator(s) may be 2 thereunder, FINRA and ISE join in 9. Customer Complaints. ISE shall entered in any court having jurisdiction. requesting the Commission, upon its forward to FINRA copies of all customer Each party acknowledges that the timely approval of this Agreement or any part complaints involving Inbound Router and complete performance of its Members received by ISE relating to obligations pursuant to this Agreement thereof, to relieve ISE of any and all FINRA’s Regulatory Responsibilities is critical to the business and operations responsibilities with respect to matters under this Agreement. It shall be of the other party. In the event of a allocated to FINRA pursuant to this FINRA’s responsibility to review and dispute between the parties, the parties Agreement; provided, however, that this take appropriate action in respect to shall continue to perform their Agreement shall not be effective until such complaints. respective obligations under this the Effective Date. 10. Advertising. FINRA shall assume Agreement in good faith during the 18. Severability. Any term or responsibility to review the advertising resolution of such dispute unless and provision of this Agreement that is of Inbound Router Members subject to until this Agreement is terminated in invalid or unenforceable in any the Agreement, provided that such accordance with its provisions. Nothing jurisdiction shall, as to such material is filed with FINRA in in this Section 14 shall interfere with a jurisdiction, be ineffective to the extent accordance with FINRA’s filing party’s right to terminate this Agreement of such invalidity or unenforceability procedures and is accompanied with as set forth herein. without rendering invalid or any applicable filing fees set forth in 14. Separate Agreement. This unenforceable the remaining terms and FINRA Rules. Such review shall be Agreement is wholly separate from the provisions of this Agreement or made in accordance with then Agreements made pursuant to Rule affecting the validity or enforceability of applicable FINRA Rules and 17d–2 of the Securities Exchange Act of any of the terms or provisions of this interpretations. The advertising of 1934 between Financial Industry Agreement in any other jurisdiction. Inbound Router Members shall be Regulatory Authority, Inc. and the 19. Counterparts. This Agreement subject only to compliance with International Securities Exchange LLC may be executed in one or more appropriate FINRA Rules and entered into on December 20, 2006 and counterparts, each of which shall be interpretations. on November 21, 2008, and as may be deemed an original, and such 11. No Restrictions on Regulatory amended from time to time. counterparts together shall constitute Action. Nothing contained in this 15. Amendment. This Agreement may one and the same instrument. Agreement shall restrict or in any way be amended in writing duly approved encumber the right of either party to by each party. All such amendments Exhibit 1 conduct its own independent or must be filed with and approved by the ISE Rules Certification for 17d–2 concurrent investigation, examination Commission before they become Agreement with FINRA or enforcement proceeding of or against effective. Inbound Router Members, as either 16. Limitation of Liability. Neither ISE hereby certifies that the party, in its sole discretion, shall deem FINRA nor ISE nor any of their requirements contained in the ISE Rules appropriate or necessary. respective directors, governors, officers listed below are identical to, or 12. Termination. This Agreement or employees shall be liable to the other substantially similar to, the comparable shall terminate on the earlier of (a) the party to this Agreement for any liability, FINRA (NASD) Rule, Exchange Act date on which ISE Holdings, the parent loss or damage resulting from or provision or SEC rule identified company of ISE, ceases to maintain an claimed to have resulted from any (‘‘Common Rules’’).
ISE rule(s) FINRA (NASD) or SEC section
408(a)(1). Prevention of the Misuse of Material, Nonpublic Information Section 15(f) of the Securities Exchange Act of 1934. 409. Disciplinary Action ...... NASD Rule 3070(a)(1) and (10) Reporting Requirements. 604. Continuing Education for Registered Persons ...... NASD Rule 1120 Continuing Education Requirements. 622. Transfer of Accounts ...... NASD Rule 11870 Customer Account Transfer Contracts. 624. Broker’s Blanket Bonds ...... NASD Rule 3020 Fidelity Bonds 1. 626. Telephone Solicitation ...... NASD Rule 2212 Telemarketing. 1400. Maintenance, Retention, and Furnishing of Books, Records and NASD Rule 3110(a) Books and Records—Requirements. Other Information.
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ISE rule(s) FINRA (NASD) or SEC section
2114. Doing Business with the Public 2 ...... NASD Rules 2310 Recommendations to Customers (Suitability); 2320 Best Execution and Interpositioning; 2330 Customers’ Securities or Funds; 2340 Customer Account Statements; 2341 Margin Disclosure Statement; 2350 Broker/Dealer Conduct on the Premises of Finan- cial Institutions; 2360 Approval Procedures for Day-Trading Ac- counts; 2361 Day-Trading Risk Disclosure Statement; 2370 Bor- rowing From or Lending to Customers. 1 FINRA shall have Regulatory Responsibilities for Dual Members to the extent that a Dual Member is, and remains, a member of SIPC. 2 In connection with the approval of ISE Rule 2114, the Commission noted that since ISE is requiring Equity EAMs that do business with the public to become members of NASD (n/k/a FINRA), those ISE members are required to comply with FINRA (NASD) rules that govern the prac- tice of members when doing business with the public. The Commission noted that, among other things, these members would be obligated to comply with these listed FINRA (NASD) Rules. See Exchange Act Release No. 54401 (September 1, 2006), 71 FR 53483 (September 11, 2006) (Order Granting Accelerated Approval of SR–ISE–2006–53).
* * * * * Paper Comments For the Commission, by the Division of Trading and Markets, pursuant to delegated III. Date of Effectiveness of the • Send paper comments in triplicate authority.18 Proposed Plan and Timing for to Elizabeth M. Murphy, Secretary, Florence E. Harmon, Commission Action Securities and Exchange Commission, Deputy Secretary. Pursuant to Section 17(d)(1) of the 100 F Street, NE., Washington, DC [FR Doc. 2010–8350 Filed 4–12–10; 8:45 am] Act 15 and Rule 17d–2 thereunder,16 20549–1090. BILLING CODE 8011–01–P after April 28, 2010, the Commission All submissions should refer to File No. may, by written notice, declare the plan 4–596. This file number should be submitted by ISE and FINRA, File No. SECURITIES AND EXCHANGE included on the subject line if e-mail is COMMISSION 4–596, to be effective if the Commission used. To help the Commission process finds that the plan is necessary or and review your comments more [Release No. 34–61848; File No. SR–NYSE– appropriate in the public interest and efficiently, please use only one method. 2010–31] for the protection of investors, to foster The Commission will post all comments cooperation and coordination among Self-Regulatory Organizations; Notice on the Commission’s Internet Web site self-regulatory organizations, or to of Filing and Immediate Effectiveness remove impediments to and foster the (http://www.sec.gov/rules/sro.shtml). 17 of Proposed Rule Change by New York development of the national market Copies of the submission, all Stock Exchange LLC Amending Rule system and a national system for the subsequent amendments, all written 70 in Order To Update Functionality clearance and settlement of securities statements with respect to the proposed Relating to the Entry of D-Quotes and transactions and in conformity with the rule change that are filed with the Pegging E-Quotes factors set forth in Section 17(d) of the Commission, and all written Act. communications relating to the April 6, 2010. proposed rule change between the Pursuant to Section 19(b)(1) 1 of the IV. Solicitation of Comments Commission and any person, other than Securities Exchange Act of 1934 (the In order to assist the Commission in those that may be withheld from the ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 determining whether to approve the public in accordance with the notice is hereby given that, on April 1, 17d–2 Plan and to relieve ISE of the provisions of 5 U.S.C. 552, will be 2010, New York Stock Exchange LLC responsibilities which would be available for Web site viewing and (‘‘NYSE’’ or the ‘‘Exchange’’) filed with assigned to FINRA, interested persons printing in the Commission’s Public the Securities and Exchange are invited to submit written data, Reference Room, 100 F Street, NE., Commission (the ‘‘Commission’’) the views, and arguments concerning the Washington, DC 20549, on official proposed rule change as described in foregoing. Comments may be submitted business days between the hours of 10 Items I and II below, which Items have been prepared by the self-regulatory by any of the following methods: a.m. and 3 p.m. Copies of the plan also organization. The Commission is Interested persons are invited to will be available for inspection and publishing this notice to solicit submit written data, views, and copying at the principal offices of ISE arguments concerning the foregoing, comments on the proposed rule change and FINRA. All comments received will from interested persons. including whether the proposed rule be posted without change; the change is consistent with the Act. Commission does not edit personal I. Self-Regulatory Organization’s Comments may be submitted by any of identifying information from Statement of the Terms of Substance of the following methods: submissions. You should submit only the Proposed Rule Change Electronic Comments information that you wish to make The Exchange proposes to amend available publicly. All submissions • Rule 70 in order to update functionality Use the Commission’s Internet should refer to File No. 4–596 and relating to the entry of d-Quotes and comment form (http://www.sec.gov/ should be submitted on or before April pegging e-Quotes. The text of the rules/sro.shtml); or 28, 2010. proposed rule change is available at the • Send an e-mail to rule- Exchange, on the Commission’s Web [email protected]. Please include File site at http://www.sec.gov, the No. 4–596 on the subject line. 17 The text of the proposed rule change is available on the Commission’s Web site at http:// 1 15 U.S.C. 78s(b)(1). 15 15 U.S.C. 78q(d)(1). www.sec.gov. 2 15 U.S.C. 78a. 16 17 CFR 240.17d–2. 18 17 CFR 200.30–3(a)(12). 3 17 CFR 240.19b–4.
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Commission’s Public Reference Room, recognize and respond to this Act,7 which requires the rules of an and http://www.nyse.com. information by entering offsetting exchange to promote just and equitable interest to mitigate market impact, by principles of trade, to remove II. Self-Regulatory Organization’s entering limit orders or the new CO impediments to and perfect the Statement of the Purpose of, and order.5 The Exchange further believes mechanism of a free and open market Statutory Basis for, the Proposed Rule that the 10-second cut off will not Change and a national market system and, in materially impact a Floor broker’s general, to protect investors and the In its filing with the Commission, the ability to represent customer interest in public interest. The proposed rule self-regulatory organization included the closing transaction because, like change also is designed to support the statements concerning the purpose of, other market participants, Floor brokers principles of Section 11A(a)(1) 8 of the and basis for, the proposed rule change can enter offsetting market-on-close or Act in that it seeks to assure fair and discussed any comments it received limit-on-close orders or CO orders in competition among brokers and dealers on the proposed rule change. The text that 10-second period. Floor brokers and among exchange markets and the of those statements may be examined at also continue to have the ability to practicability of brokers executing the places specified in Item IV below. represent interest orally at the close. investor’s orders in the best market. The The Exchange has prepared summaries, However, the Exchange believes that the Exchange believes that the proposed set forth in sections A, B, and C below, proposed cut-off period will have updates to Floor broker functionality of the most significant parts of such minimal impact on current trading meet such goals as it will contribute to statements. practices of Floor brokers because the a more orderly closing process, by A. Self-Regulatory Organization’s manual entry process for d-Quotes in providing an opportunity for contra-side Statement of the Purpose of, and the handheld devices creates physical interest to flow into the Exchange Statutory Basis for, the Proposed Rule constraints that naturally limit the market. Change number of d-Quotes that can be sent in the last 10 seconds. Therefore, the cut- B. Self-Regulatory Organization’s 1. Purpose off time should not impose a significant Statement on Burden on Competition The Exchange proposes to amend its limitation on Floor brokers that is not The Exchange does not believe that rules to provide that d-Quotes and already present because of the manual the proposed rule change will impose pegging e-Quotes that are entered 10 aspect of d-Quote entry. The proposed any burden on competition that is not seconds or less before the scheduled change is also consistent with ongoing necessary or appropriate in furtherance close will automatically be rejected by regulatory guidance that encourages all of the purposes of the Act. market participants, including Floor Exchange systems. Accordingly, on a C. Self-Regulatory Organization’s regular trading day, Exchange systems brokers, to avoid holding back large 6 Statement on Comments on the will reject d-Quotes or pegging e-Quotes interest until at or near the close. To effect this change, the Exchange Proposed Rule Change Received From entered at or after 3:59:50 p.m. On days Members, Participants, or Others where trading closes at 1 p.m., e.g., the proposes to amend Rules 70.25(a)(ii) day after Thanksgiving, Exchange and 70.26(iii) to provide that Exchange No written comments were solicited systems will reject d-Quotes or pegging systems will reject d-Quotes or pegging or received with respect to the proposed e-Quotes eligible for the close entered at e-Quotes, as applicable, that are entered rule change. 10 seconds or less before the scheduled or after 12:59:50 p.m.4 III. Date of Effectiveness of the The Exchange believes that the 10 close. The Exchange also proposes to add to Rule 70(h)(i) to cross reference Proposed Rule Change and Timing for second cut-off will contribute to a more Commission Action orderly closing process, by providing an Supplementary Material .25 and .26 of Because the foregoing proposed rule opportunity for contra-side interest, Rule 70 to reflect that those rules also change does not: including the new Closing Offset (‘‘CO’’) impact how Floor broker agency interest interacts in the closing process. The (i) Significantly affect the protection order, to flow into the Exchange market. of investors or the public interest; This proposed change is consistent with Exchange notes that any d-Quotes or pegging e-Quotes eligible for the close (ii) Impose any significant burden on the Exchange’s ongoing effort to that were entered before this proposed competition; and streamline the closing process and cut-off time remain eligible to (iii) Become operative for 30 days enhance transparency at the close. In participate in the close. The Exchange from the date on which it was filed, or light of recent enhancements to the will notify members and member such shorter time as the Commission imbalance feed information, the organizations, including Floor brokers, may designate, if consistent with the Exchange believes that designating a of these rule changes and the date they protection of investors and the public cut-off time before the close for the will be implemented by issuing a Trader interest, it has become effective entry of d-Quotes and pegging e-Quotes Notice and/or publication of an pursuant to Section 19(b)(3)(A) of the will contribute to these objectives. 9 10 Information Memorandum. Act and Rule 19b–4(f)(6) thereunder. Currently, d-Quotes and pegging e- At any time within 60 days of the Quotes are added to the pre-close data 2. Statutory Basis filing of the proposed rule change, the feed beginning at 3:55 p.m., and The statutory basis for the proposed updated every five seconds until the rule change is Section 6(b)(5) of the 7 15 U.S.C. 78f(b)(5). close. The Exchange believes that a 10 8 15 U.S.C. 78k–1(a)(1). second cut-off prior to the close for 5 See Securities Exchange Act Release Nos. 61233 9 15 U.S.C. 78s(b)(3)(A). entry of d-Quotes and pegging e-Quotes (Dec. 23, 2009), 74 FR 69169 (Dec. 30, 2009) (SR– 10 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– will provide sufficient time for all NYSE–2009–111); 61244 (Dec. 28, 2009), 75 FR 4(f)(6)(iii) requires the self-regulatory organization 4797 [sic] (Jan. 5, 2010) (SR–NYSEAmex–2009–81). to submit to the Commission written notice of its market participants to electronically The Exchange implemented these rule changes for intent to file the proposed rule change, along with both NYSE and NYSE Amex Equities on March 1, a brief description and text of the proposed rule 4 NYSE Amex LLC has filed a companion rule 2010. change, at least five business days prior to the date proposal to conform its equities rules to the changes 6 See e.g., NYSE Regulation Information Memo of filing of the proposed rule change, or such proposed in this filing. See SR–NYSEAmex–2010– 09–29 (June 19, 2009), published at http:// shorter time as designated by the Commission. The 34. www.nyse.com. Exchange has satisfied this requirement.
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Commission may summarily abrogate Number SR–NYSE–2010–31 and should II. Self-Regulatory Organization’s such rule change if it appears to the be submitted on or before May 4, 2010. Statement of the Purpose of, and Commission that such action is For the Commission, by the Division of Statutory Basis for, the Proposed Rule necessary or appropriate in the public Trading and Markets, pursuant to delegated Change interest, for the protection of investors, authority.11 In its filing with the Commission, the or otherwise in furtherance of the Florence E. Harmon, self-regulatory organization included purposes of the Act. Deputy Secretary. statements concerning the purpose of, IV. Solicitation of Comments [FR Doc. 2010–8363 Filed 4–12–10; 8:45 am] and basis for, the proposed rule change BILLING CODE 8011–01–P and discussed any comments it received Interested persons are invited to on the proposed rule change. The text submit written data, views, and of those statements may be examined at arguments concerning the foregoing, SECURITIES AND EXCHANGE the places specified in Item IV below. including whether the proposed rule COMMISSION The Exchange has prepared summaries, change is consistent with the Act. set forth in sections A, B, and C below, Comments may be submitted by any of [Release No. 34–61857; File No. SR–CBOE– of the most significant parts of such 2010–030] the following methods: statements. Electronic Comments Self-Regulatory Organizations; A. Self-Regulatory Organization’s • Chicago Board Options Exchange, Statement of the Purpose of, and Use the Commission’s Internet Incorporated; Notice of Filing and comment form (http://www.sec.gov/ Statutory Basis for, the Proposed Rule Immediate Effectiveness of Proposed Change rules/sro.shtml); or Rule Change To Add a Note to Rule • Send an e-mail to rule- 4.11 Advising the Delta-Based Equity 1. Purpose [email protected]. Please include File Hedge Exemption Is Not Currently The Commission previously approved Number SR–NYSE–2010–31 on the Available for Customers CBOE’s proposed rule change, as subject line. modified [sic] Amendment No. 1, to April 7, 2010. Paper Comments extend the delta hedging exemption Pursuant to Section 19(b)(1) of the from equity option position limits to • Send paper comments in triplicate Securities Exchange Act of 1934 (the 1 2 positions of customers who hedge those to Elizabeth M. Murphy, Secretary, ‘‘Act’’), and Rule 19b–4 thereunder, positions in accordance with a pricing Securities and Exchange Commission, notice is hereby given that, on March model maintained and operated by the 100 F Street, NE., Washington, DC 26, 2010, the Chicago Board Options Options Clearing Corporation.3 20549–1090. Exchange, Incorporated (‘‘Exchange’’ or Consistent with Amendment No. 1 and ‘‘CBOE’’) filed with the Securities and the approval order, which provided that All submissions should refer to File Exchange Commission (the Number SR–NYSE–2010–31. This file CBOE was adopting the delta hedging ‘‘Commission’’) the proposed rule exemption for customers but not number should be included on the change as described in Items I, II, and subject line if e-mail is used. To help the implementing it immediately, the III below, which Items have been purpose of this rule change is to add a Commission process and review your prepared by the Exchange. The comments more efficiently, please use note the beginning of Interpretation and Exchange has designated this proposal Policy .04 (c) to Rule 4.11, Delta-Based only one method. The Commission will as one constituting a stated policy, post all comments on the Commission’s Equity Hedge Exemption, advising that practice, or interpretation with respect this exemption is not currently available Internet Web site (http://www.sec.gov/ to the meaning, administration, or rules/sro.shtml). Copies of the to customers. Specifically, the Exchange enforcement of an existing rule under proposes to add the following language, submission, all subsequent Section 19(b)(3)(A)(i) of the Act, and amendments, all written statements Rule 19b–4(f)(1) thereunder, which * Note: The Delta-Based Equity Hedge with respect to the proposed rule renders the proposal effective upon Exemption for customers is not currently available and customers may not seek to rely change that are filed with the filing with the Commission. The Commission, and all written on the Delta-Based Equity Hedge Exemption. Commission is publishing this notice to The Exchange will issue a Regulatory communications relating to the solicit comments on the proposed rule proposed rule change between the Circular to announce when the Delta-Based change from interested persons. Equity Hedge Exemption is available to Commission and any person, other than customers. those that may be withheld from the I. Self-Regulatory Organization’s public in accordance with the Statement of the Terms of Substance of 2. Statutory Basis provisions of 5 U.S.C. 552, will be the Proposed Rule Change available for Web site viewing and The Exchange believes this rule CBOE proposes to add a note to the proposal is consistent with the Act and printing in the Commission’s Public beginning of Interpretation and Policy Reference Room on official business the rules and regulations under the Act .04 (c) to Rule 4.11, Delta-Based Equity applicable to a national securities days between the hours of 10 a.m. and Hedge Exemption, advising that this 3 p.m. Copies of such filing also will be exchange and, in particular, the exemption is not currently available to 4 available for inspection and copying at requirements of Section 6(b) of the Act. customers. The text of the rule proposal Specifically, the Exchange believes that the principal office of the Exchange. All is available on the Exchange’s Web site comments received will be posted the proposed rule change is consistent (http://www.cboe.org/legal), at the 5 without change; the Commission does with the Section 6(b)(5) Act Exchange’s Office of the Secretary and requirements that the rules of an not edit personal identifying at the Commission. information from submissions. You 3 See Securities Exchange Act Release No. 60555 should submit only information that 11 17 CFR 200.30–3(a)(12). (August 21, 2009), 74 FR 43741 (August 27, 2009). you wish to make available publicly. All 1 15 U.S.C. 78s(b)(1). 4 15 U.S.C. 78f(b). submissions should refer to File 2 17 CFR 240.19b–4. 5 15 U.S.C. 78f(b)(5).
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exchange be designed to promote just • Send an e-mail to rule- SECURITIES AND EXCHANGE and equitable principles of trade, to [email protected]. Please include File COMMISSION prevent fraudulent and manipulative Number SR–CBOE–2010–030 on the [Release No. 34–61854; File No. SR– acts and, in general, to protect investors subject line. NASDAQ–2010–044] and the public interest. In particular, the Paper Comments proposed rule change seeks to provide Self-Regulatory Organizations; The an advisory note to notify customers • Send paper comments in triplicate NASDAQ Stock Market LLC; Notice of that the Delta-Based Equity Hedge to Elizabeth M. Murphy, Secretary, Filing and Immediate Effectiveness of Exemption for customers is not Securities and Exchange Commission, Proposed Rule Change To Modify Fees currently available and that the 100 F Street, NE., Washington, DC for Members Using the NASDAQ Exchange will issue a Regulatory Market Center Circular announcing when the 20549–1090. exemption becomes available for All submissions should refer to File April 6, 2010. customers. Number SR–CBOE–2010–030. This file Pursuant to Section 19(b)(1) of the number should be included on the Securities Exchange Act of 1934 B. Self-Regulatory Organization’s (‘‘Act’’),1 and Rule 19b–4 thereunder,2 Statement on Burden on Competition subject line if e-mail is used. To help the Commission process and review your notice is hereby given that on March 30, CBOE does not believe that the comments more efficiently, please use 2010, The NASDAQ Stock Market LLC proposed rule change will impose any (‘‘NASDAQ’’) filed with the Securities only one method. The Commission will burden on competition not necessary or and Exchange Commission post all comments on the Commission’s appropriate in furtherance of the (‘‘Commission’’) the proposed rule Internet Web site (http://www.sec.gov/ purposes of the Act. change as described in Items I, II, and rules/sro.shtml). Copies of the III below, which Items have been C. Self-Regulatory Organization’s submission, all subsequent prepared by NASDAQ. Pursuant to Statement on Comments on the amendments, all written statements Section 19(b)(3)(A)(ii) of the Act 3 and Proposed Rule Change Received From with respect to the proposed rule Rule 19b–4(f)(2) thereunder,4 NASDAQ Members, Participants, or Others change that are filed with the has designated this proposal as No written comments were solicited Commission, and all written establishing or changing a due, fee, or or received with respect to the proposed communications relating to the other charge, which renders the rule change. proposed rule change between the proposed rule change effective upon Commission and any person, other than III. Date of Effectiveness of the filing. The Commission is publishing Proposed Rule Change and Timing for those that may be withheld from the this notice to solicit comments on the Commission Action public in accordance with the proposed rule change from interested provisions of 5 U.S.C. 552, will be persons. The foregoing proposed rule change available for Web site viewing and will take effect upon filing with the I. Self-Regulatory Organization’s printing in the Commission’s Public Statement of the Terms of the Substance Commission pursuant to Section Reference Room on official business 19(b)(3)(A)(i) of the Act 6 and Rule 19b– of the Proposed Rule Change days between the hours of 10 a.m. and 4(f)(1) thereunder,7 because it 3 p.m. Copies of such filing also will be NASDAQ proposes to modify pricing constitutes a stated policy, practice, or available for inspection and copying at for NASDAQ members using the interpretation with respect to the NASDAQ Market Center. NASDAQ will the principal office of the CBOE. All meaning, administration, or implement the proposed change on comments received will be posted enforcement of an existing rule. April 1, 2010. The text of the proposed At any time within 60 days of the without change; the Commission does rule change is available at http:// filing of the proposed rule change, the not edit personal identifying nasdaqomx.cchwallstreet.com/, at Commission may summarily abrogate information from submissions. You NASDAQ’s principal office, and at the such rule change if it appears to the should submit only information that Commission’s Public Reference Room. Commission that such action is you wish to make available publicly. All necessary or appropriate in the public submissions should refer to File II. Self-Regulatory Organization’s interest, for the protection of investors, Number SR–CBOE–2010–030 and Statement of the Purpose of, and or otherwise in furtherance of the should be submitted on or before May Statutory Basis for, the Proposed Rule purposes of the Act. 4, 2010. Change In its filing with the Commission, IV. Solicitation of Comments For the Commission, by the Division of Trading and Markets, pursuant to delegated NASDAQ included statements Interested persons are invited to authority.8 concerning the purpose of and basis for submit written data, views, and the proposed rule change and discussed arguments concerning the foregoing, Florence E. Harmon, any comments it received on the including whether the proposed rule Deputy Secretary. proposed rule change. The text of these change is consistent with the Act. [FR Doc. 2010–8366 Filed 4–12–10; 8:45 am] statements may be examined at the Comments may be submitted by any of BILLING CODE 8011–01–P places specified in Item IV below. the following methods: NASDAQ has prepared summaries, set Electronic Comments forth in Sections A, B, and C below, of the most significant aspects of such • Use the Commission’s Internet statements. comment form (http://www.sec.gov/ rules/sro.shtml); or 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 6 15 U.S.C. 78s(b)(3)(A)(i). 3 15 U.S.C. 78s(b)(3)(A)(ii). 7 17 CFR 240.19b–4(f)(1). 8 17 CFR 200.30–3(a)(12). 4 17 C.F.R. 240.19b–4(f)(2).
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A. Self-Regulatory Organization’s provisions of Section 6 of the Act,6 in III. Date of Effectiveness of the Statement of the Purpose of, and general, and with Section 6(b)(4) of the Proposed Rule Change and Timing for Statutory Basis for, the Proposed Rule Act,7 in particular, in that it provides for Commission Action Change the equitable allocation of reasonable The foregoing rule change has become 1. Purpose dues, fees and other charges among effective pursuant to Section members and issuers and other persons 19(b)(3)(A)(ii) of the Act 8 and NASDAQ is making modifications to using any facility or system which subparagraph (f)(2) of Rule 19b–4 its pricing schedule for execution of NASDAQ operates or controls. The thereunder.9 At any time within 60 days orders in securities priced at $1 or more impact of the price changes upon the of the filing of the proposed rule change, through the NASDAQ Market Center.5 net fees paid by a particular market the Commission may summarily First, NASDAQ is eliminating volume- participant will depend upon a number abrogate such rule change if it appears based pricing tiers that currently apply of variables, including the relative to the Commission that such action is to executions of orders in the NASDAQ availability of liquidity on NASDAQ necessary or appropriate in the public Market Center for securities listed on and other venues, the prices of the interest, for the protection of investors, NASDAQ or the New York Stock market participant’s quotes and orders or otherwise in furtherance of the Exchange (‘‘NYSE’’). As a result of this relative to the national best bid and offer purposes of the Act. change, the fee to access liquidity in the (i.e., its propensity to add or remove NASDAQ Market Center will be $0.0030 liquidity), the types of securities that it IV. Solicitation of Comments per share executed, regardless of trades, and the member’s trading Interested persons are invited to whether the security being traded is volumes. NASDAQ notes that the submit written data, views, and listed on NASDAQ, NYSE, NYSE Amex, proposed elimination of ‘‘take’’ tiers will arguments concerning the foregoing, or any other listing venue. The change result in a fee schedule with less including whether the proposed rule is designed to ensure that NASDAQ variability and will eliminate change is consistent with the Act. does not lose money on trade circumstances in which NASDAQ loses Comments may be submitted by any of executions, as is currently the case money on order executions by paying a the following methods: when the order of a member in the most rebate that is higher than the take fee it Electronic Comments favorable ‘‘take’’ tier (fee of $0.0028 per charges. The increase in the rebate for • share executed for members with an securities listed on exchanges other than Use the Commission’s Internet average daily volume of more than 145 NASDAQ and NYSE is intended to comment form (http://www.sec.gov/ million share of liquidity routed, rules/sro.shtml); or increase the attractiveness of NASDAQ • removed, and/or provided, and more as a venue for trading these securities. Send an e-mail to rule- [email protected]. Please include File than 35 million shares of liquidity NASDAQ notes that it operates in a Number SR–NASDAQ–2010–044 on the provided) is matched with the order of highly competitive market in which subject line. a member in the two most favorable market participants can readily direct liquidity provider rebate tiers (credit of order flow to competing venues if they Paper Comments $0.00295 per share executed for deem fee levels at a particular venue to • members providing an average of more Send paper comments in triplicate be excessive. Accordingly, if particular to Elizabeth M. Murphy, Secretary, than 95 million share of liquidity per market participants object to the day, or $0.0029 per share executed for Securities and Exchange Commission, proposed fee changes, they can avoid 100 F Street, NE., Washington, DC members providing an average of more paying the fees by directing orders to than 35 million share of liquidity per 20549–1090. other venues. NASDAQ believes that its All submissions should refer to File day). fees continue to be reasonable and Second, NASDAQ is increasing the Number SR–NASDAQ–2010–044. This equitably allocated to members on the liquidity provider rebate for securities file number should be included on the basis of whether they opt to direct listed on exchanges other than subject line if e-mail is used. orders to NASDAQ. NASDAQ and NYSE. Currently, with To help the Commission process and respect to displayed quotes/orders, B. Self-Regulatory Organization’s review your comments more efficiently, NASDAQ pays a liquidity provider Statement on Burden on Competition please use only one method. The rebate of $0.0025 per share executed to Commission will post all comments on NASDAQ does not believe that the members providing an average of the Commission’s Internet Web site proposed rule change will result in any between 20,000,001 and 35 million (http://www.sec.gov/rules/sro.shtml). burden on competition that is not shares of liquidity per day, and a rebate Copies of the submission, all subsequent necessary or appropriate in furtherance of $0.0020 per share executed to amendments, all written statements of the purposes of the Act, as amended. members providing 20 million or fewer with respect to the proposed rule Because the market for order execution shares of liquidity per day. As a result change that are filed with the and routing is extremely competitive, of the change, NASDAQ will provide a Commission, and all written members may readily direct orders to rebate of $0.0026 per share executed to communications relating to the NASDAQ’s competitors if they object to members providing 35 million or fewer proposed rule change between the the proposed rule change. shares of liquidity per day. Rebates to Commission and any person, other than members that provide more than 35 C. Self-Regulatory Organization’s those that may be withheld from the million shares of liquidity per day Statement on Comments on the public in accordance with the remain unchanged. Proposed Rule Change Received From provisions of 5 U.S.C. 552, will be Members, Participants, or Others available for Web site viewing and 2. Statutory Basis printing in the Commission’s Public NASDAQ believes that the proposed Written comments were neither Reference Room on official business rule change is consistent with the solicited nor received. days between the hours of 10 a.m. and
5 Fees and credits for executions of orders for 6 15 U.S.C. 78f. 8 15 U.S.C. 78s(b)(3)(a)(ii). securities priced below $1 remain unchanged. 7 15 U.S.C. 78f(b)(4). 9 17 CFR 240.19b–4(f)(2).
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3 p.m. Copies of such filing also will be Office of the Secretary, and at the the indicative lease rate.5 Specifically, available for inspection and copying at Commission’s Public Reference Room. under CBOE Rules 3.19 and 3.27, access the principal offices of the Exchange. to the Exchange by Temporary Members All comments received will be posted II. Self-Regulatory Organization’s and ITP holders may only be terminated without change; the Commission does Statement of the Purpose of, and at their own direction except in the not edit personal identifying Statutory Basis for, the Proposed Rule following limited circumstances: (i) As information from submissions. You Change a result of regulatory action against the should submit only information that In its filing with the Commission, Temporary Member or ITP holder, (ii) in you wish to make available publicly. All CBOE included statements concerning the event of a demutualization, or (iii) submissions should refer to File through a rule change approved by the the purpose of and basis for the Number SR–NASDAQ–2010–044, and Commission. On the other hand, the proposed rule change and discussed any should be submitted on or before May typical lease arrangement for a comments it received on the proposed 4, 2010. transferable membership can be rule change. The text of these statements terminated by the lessor without cause For the Commission, by the Division of may be examined at the places specified Trading and Markets, pursuant to delegated upon a month’s notice to the lessee. As authority.10 in Item IV below. The CBOE has a result, Temporary Members and ITP Florence E. Harmon, prepared summaries, set forth in holders enjoy more certainty than Sections A, B, and C below, of the most Deputy Secretary. lessees with respect to their trading significant aspects of such statements. [FR Doc. 2010–8365 Filed 4–12–10; 8:45 am] access to the Exchange. BILLING CODE 8011–01–P A. Self-Regulatory Organization’s CBOE also believes that the proposed Statement of the Purpose of, and access fees are reasonable when Statutory Basis for, the Proposed Rule compared to the average indicative lease SECURITIES AND EXCHANGE Change rate over the last six months and to COMMISSION indicative lease rate levels during the 1. Purpose past year. Specifically, the average [Release No. 34–61852; File No. SR–CBOE– 2010–034] indicative lease rate between October The current access fee for Temporary 2009 and March 2010 was $8,493, Members under Rule 3.19.02 2 and the Self-Regulatory Organizations; which is in excess of the proposed current access fee for ITP holders under Chicago Board Options Exchange, $7,500 rate. Additionally, the indicative Rule 3.27 3 are both $4,875 per month. Incorporated; Notice of Filing and lease rate was above $10,000 between Both access fees are currently set at the June 2009 and November 2009, peaking Immediate Effectiveness of Proposed 4 Rule Change Relating to Temporary indicative lease rate for March 2010. at $11,900 in October 2010. Also, in as Membership Status and Interim The Exchange proposes to adjust both recently as January 2010, the indicative Trading Permit Access Fees access fees effective at the beginning of lease rate exceeded the proposed $7,500 April 2010. Specifically, instead of when the indicative lease rate was April 6, 2010. setting these access fees at the indicative $7,928. Accordingly, the Exchange Pursuant to Section 19(b)(1) of the lease rate, the Exchange proposes to considers $7,500 to be a reasonable rate Securities Exchange Act of 1934 revise both the Temporary Member for monthly access to the Exchange. 1 (‘‘Act’’), notice is hereby given that on access fee and the ITP access fee to be Each of the proposed access fees will March 29, 2010, the Chicago Board $7,500 per month commencing on April remain in effect until such time either Options Exchange, Incorporated 1, 2010. that the Exchange submits a further rule (‘‘CBOE’’ or the ‘‘Exchange’’) filed with Because Temporary Members and ITP filing pursuant to Section 19(b)(3)(A)(ii) the Securities and Exchange of the Act 6 to modify the applicable Commission (‘‘Commission’’) the holders possess a feature that does not exist in the typical lease arrangement for access fee or the applicable status (i.e., proposed rule change as described in the Temporary Membership status or Items I, II, and III below, which Items a CBOE transferable membership, the Exchange believes that it is equitable to the ITP status) is terminated. have been prepared by the CBOE. The Accordingly, the Exchange may further Commission is publishing this notice to assess Temporary Members and ITP holders an access fee that is higher than adjust the proposed access fees in the solicit comments on the proposed rule future if the Exchange determines that it change from interested parties. 2 See Securities Exchange Act Release No. 56458 would be appropriate to do so. I. Self-Regulatory Organization’s (September 18, 2007), 72 FR 54309 (September 24, The procedural provisions of the Statement of the Terms of Substance of 2007) (SR–CBOE–2007–107) for a description of the CBOE Fee Schedule related to the the Proposed Rule Change Temporary Membership status under Rule 3.19.02. assessment of each proposed access fee 3 See Securities Exchange Act Release No. 58178 are not proposed to be changed and will CBOE proposes to adjust (i) the (July 17, 2008), 73 FR 42634 (July 22, 2008) (SR– monthly access fee for persons granted CBOE–2008–40) for a description of the Interim remain the same as the current temporary CBOE membership status Trading Permits under Rule 3.27. procedural provisions relating to the (‘‘Temporary Members’’) pursuant to 4 The indicative lease rate is defined under Rule assessment of that access fee. 3.27(b) as the highest clearing firm floating monthly Interpretation and Policy .02 under rate of the CBOE Clearing Members that assist in 2. Statutory Basis CBOE Rule 3.19 (‘‘Rule 3.19.02’’) and (ii) facilitating at least 10% of the CBOE transferable The Exchange believes that the the monthly access fee for Interim membership leases. Rule 3.27(b) defines the proposed rule change is consistent with Trading Permit (‘‘ITP’’) holders under clearing firm floating monthly rate as the floating monthly rate that a Clearing Member designates, in Section 6(b) of the Act,7 CBOE Rule 3.27. The text of the in general, and connection with transferable membership leases furthers the objectives of Section 6(b)(4) proposed rule change is available on the that the Clearing Member assisted in facilitating, for Exchange’s Web site (http:// leases that utilize that monthly rate. The concepts 5 See, e.g., Securities Exchange Act Release No. www.cboe.org/Legal/), at the Exchange’s of an indicative lease rate and of a clearing firm floating month rate were previously utilized in the 58200 (July 21, 2008), 73 FR 43805 (July 28, 2008) CBOE rule filings that set and adjusted the (SR–CBOE–2008–77). 10 17 CFR 200.30–3(a)(12). Temporary Member access fee. Both concepts are 6 15 U.S.C. 78s(b)(3)(A)(ii). 1 15 U.S.C. 78s(b)(1). also codified in Rule 3.27(b) in relation to ITPs. 7 15 U.S.C. 78f(b).
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of the Act,8 in particular, in that it is Number SR–CBOE–2010–034 on the SECURITIES AND EXCHANGE designed to provide for the equitable subject line. COMMISSION allocation of reasonable dues, fees, and Paper Comments other charges among persons using its [Release No. 34–61847; File No. SR– facilities. CBOE believes that the • Send paper comments in triplicate NYSEAmex–2010–34] proposed access fees are reasonable to Elizabeth M. Murphy, Secretary, when compared to the average Securities and Exchange Commission, Self-Regulatory Organizations; Notice indicative lease rate over the last six 100 F Street, NE., Washington, DC of Filing and Immediate Effectiveness months and to indicative lease rate 20549–1090. of Proposed Rule Change by NYSE levels during the past year for the Amex LLC Amending NYSE Amex reasons described above. In addition, All submissions should refer to File Equities Rule 70 in Order To Update CBOE believes that the proposed access Number SR–CBOE–2010–034. This file Functionality Relating to the Entry of fees are equitable in that they apply number should be included on the D-Quotes and Pegging E-Quotes uniformly to all Temporary Members subject line if e-mail is used. To help the and ITP holders. Commission process and review your April 6, 2010. comments more efficiently, please use B. Self-Regulatory Organization’s Pursuant to Section 19(b)(1) 1 of the only one method. The Commission will Statement on Burden on Competition Securities Exchange Act of 1934 (the post all comments on the Commission’s CBOE does not believe that the ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 Internet Web site (http://www.sec.gov/ proposed rule change will impose any notice is hereby given that on April 1, rules/sro.shtml). Copies of the burden on competition that is not 2010, NYSE Amex LLC (the ‘‘Exchange’’ submission, all subsequent necessary or appropriate in furtherance or ‘‘NYSE Amex’’) filed with the amendments, all written statements of the purposes of the Act. Securities and Exchange Commission with respect to the proposed rule (the ‘‘Commission’’) the proposed rule C. Self-Regulatory Organization’s change that are filed with the change as described in Items I and II Statement on Comments on the Commission, and all written below, which Items have been prepared Proposed Rule Change Received From communications relating to the by the self-regulatory organization. The Members, Participants or Others proposed rule change between the Commission is publishing this notice to No written comments were solicited Commission and any person, other than solicit comments on the proposed rule or received with respect to the proposed those that may be withheld from the change from interested persons. rule change. public in accordance with the III. Date of Effectiveness of the provisions of 5 U.S.C. 552, will be I. Self-Regulatory Organization’s Proposed Rule Change and Timing for available for Web site viewing and Statement of the Terms of Substance of Commission Action printing in the Commission’s Public the Proposed Rule Change Reference Room, 100 F Street, NE., Because the foregoing rule change The Exchange proposes to amend establishes or changes a due, fee, or Washington, DC 20549, on official business days between the hours of 10 NYSE Amex Equities Rule 70 in order other charge imposed by the Exchange, to update functionality relating to the it has become effective pursuant to a.m. and 3 p.m. Copies of such filing entry of d-Quotes and pegging e-Quotes. Section 19(b)(3)(A) of the Act 9 and also will be available for inspection and The text of the proposed rule change is subparagraph (f)(2) of Rule 19b–4 10 copying at the principal office of the thereunder. At any time within 60 days Exchange. All comments received will available at the Exchange, on the of the filing of the proposed rule change, be posted without change; the Commission’s Web site at http:// the Commission may summarily Commission does not edit personal www.sec.gov, the Commission’s Public abrogate such rule change if it appears identifying information from Reference Room, and http:// to the Commission that such action is submissions. You should submit only www.nyse.com. necessary or appropriate in the public information that you wish to make II. Self-Regulatory Organization’s interest, for the protection of investors, available publicly. All submissions Statement of the Purpose of, and or otherwise in furtherance of the should refer to File No. SR–CBOE– Statutory Basis for, the Proposed Rule purposes of the Act. 2010–034 and should be submitted on Change IV. Solicitation of Comments or before May 4, 2010. In its filing with the Commission, the Interested persons are invited to For the Commission, by the Division of self-regulatory organization included submit written data, views, and Trading and Markets, pursuant to delegated arguments concerning the foregoing, authority.11 statements concerning the purpose of, and basis for, the proposed rule change including whether the proposed rule Florence E. Harmon, change is consistent with the Act. and discussed any comments it received Deputy Secretary. on the proposed rule change. The text Comments may be submitted by any of [FR Doc. 2010–8364 Filed 4–12–10; 8:45 am] the following methods: of those statements may be examined at BILLING CODE 8011–01–P the places specified in Item IV below. Electronic Comments The Exchange has prepared summaries, • Use the Commission’s Internet set forth in sections A, B, and C below, comment form (http://www.sec.gov/ of the most significant parts of such rules/sro.shtml); or statements. • Send an e-mail to rule- [email protected]. Please include File
8 15 U.S.C. 78f(b)(4). 1 15 U.S.C. 78s(b)(1). 9 15 U.S.C. 78s(b)(3)(A). 2 15 U.S.C. 78a. 10 17 CFR 240.19b–4(f)(2). 11 17 CFR 200.30–3(a)(12). 3 17 CFR 240.19b–4.
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A. Self-Regulatory Organization’s However, the Exchange believes that the meet such goals as it will contribute to Statement of the Purpose of, and proposed cut-off period will have a more orderly closing process, by Statutory Basis for, the Proposed Rule minimal impact on current trading providing an opportunity for contra-side Change practices of Floor brokers because the interest to flow into the Exchange market. 1. Purpose manual entry process for d-Quotes in the handheld devices creates physical B. Self-Regulatory Organization’s The Exchange proposes to amend its constraints that naturally limit the Statement on Burden on Competition equities rules to provide that d-Quotes number of d-Quotes that can be sent in and pegging e-Quotes that are entered the last 10 seconds. Therefore, the cut- The Exchange does not believe that 10 seconds or less before the scheduled off time should not impose a significant the proposed rule change will impose close will automatically be rejected by limitation on Floor brokers that is not any burden on competition that is not Exchange systems. Accordingly, on a already present because of the manual necessary or appropriate in furtherance regular trading day, Exchange systems aspect of d-Quote entry. The proposed of the purposes of the Act. will reject d-Quotes or pegging e-Quotes change is also consistent with ongoing entered at or after 3:59:50 p.m. On days regulatory guidance that encourages all C. Self-Regulatory Organization’s where trading closes at 1 p.m., e.g., the market participants, including Floor Statement on Comments on the day after Thanksgiving, Exchange brokers, to avoid holding back large Proposed Rule Change Received From systems will reject d-Quotes or pegging interest until at or near the close.6 Members, Participants, or Others e-Quotes eligible for the close entered at To effect this change, the Exchange 4 No written comments were solicited or after 12:59:50 p.m. proposes to amend NYSE Amex Equities The Exchange believes that the 10- or received with respect to the proposed Rules 70.25(a)(ii) and 70.26(iii) to rule change. second cut-off will contribute to a more provide that Exchange systems will orderly closing process, by providing an reject d-Quotes or pegging e-Quotes, as III. Date of Effectiveness of the opportunity for contra-side interest, applicable, that are entered 10 seconds Proposed Rule Change and Timing for including the new Closing Offset (‘‘CO’’) or less before the scheduled close. The Commission Action order, to flow into the Exchange market. Exchange also proposes to add to NYSE This proposed change is consistent with Because the foregoing proposed rule Amex Equities Rule 70(h)(i) to cross the Exchange’s ongoing effort to change does not: reference Supplementary Material .25 streamline the closing process and and .26 of Rule 70 to reflect that those (i) Significantly affect the protection enhance transparency at the close. In rules also impact how Floor broker of investors or the public interest; light of recent enhancements to the agency interest interacts in the closing imbalance feed information, the (ii) Impose any significant burden on Exchange believes that designating a process. The Exchange notes that any d- competition; and cut-off time before the close for the Quotes or pegging e-Quotes eligible for (iii) Become operative for 30 days entry of d-Quotes and pegging e-Quotes the close that were entered before this from the date on which it was filed, or will contribute to these objectives. proposed cut-off time remain eligible to such shorter time as the Commission Currently, d-Quotes and pegging e- participate in the close. The Exchange may designate, if consistent with the Quotes are added to the pre-close data will notify members and member protection of investors and the public feed beginning at 3:55 p.m., and organizations, including Floor brokers, interest, it has become effective updated every five seconds until the of these rule changes and the date they pursuant to Section 19(b)(3)(A) of the close. The Exchange believes that a 10- will be implemented by issuing a Trader Act 9 and Rule 19b–4(f)(6) thereunder.10 second cut-off prior to the close for Notice and/or publication of an Information Memorandum. At any time within 60 days of the entry of d-Quotes and pegging e-Quotes filing of the proposed rule change, the will provide sufficient time for all 2. Statutory Basis Commission may summarily abrogate market participants to electronically The statutory basis for the proposed such rule change if it appears to the recognize and respond to this Commission that such action is information by entering offsetting rule change is Section 6(b)(5) of the Act,7 which requires the rules of an necessary or appropriate in the public interest to mitigate market impact, by interest, for the protection of investors, entering limit orders or the new CO exchange to promote just and equitable 5 principles of trade, to remove or otherwise in furtherance of the order. The Exchange further believes purposes of the Act. that the 10-second cut-off will not impediments to and perfect the materially impact a Floor broker’s mechanism of a free and open market IV. Solicitation of Comments ability to represent customer interest in and a national market system and, in the closing transaction because, like general, to protect investors and the Interested persons are invited to other market participants, Floor brokers public interest. The proposed rule submit written data, views, and can enter offsetting market-on-close or change also is designed to support the arguments concerning the foregoing, limit-on-close orders or CO orders in principles of Section 11A(a)(1) 8 of the including whether the proposed rule that 10-second period. Floor brokers Act in that it seeks to assure fair change is consistent with the Act. also continue to have the ability to competition among brokers and dealers Comments may be submitted by any of represent interest orally at the close. and among exchange markets and the the following methods: practicability of brokers executing 4 New York Stock Exchange LLC has filed a investor’s orders in the best market. The 9 15 U.S.C. 78s(b)(3)(A). companion rule proposal to conform its rules to the Exchange believes that the proposed 10 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– changes proposed in this filing. See SR–NYSE– updates to Floor broker functionality 4(f)(6)(iii) requires the self-regulatory organization 2010–31. to submit to the Commission written notice of its 5 See Securities Exchange Act Release Nos. 61233 intent to file the proposed rule change, along with 6 (Dec. 23, 2009), 74 FR 69169 (Dec. 30, 2009) (SR– See. e.g., NYSE Regulation Information Memo a brief description and text of the proposed rule NYSE–2009–111); 61244 (Dec. 28, 2009), 75 FR 09–29 (June 19, 2009), published at http:// change, at least five business days prior to the date 4797 (Jan. 5, 2010) (SR–NYSEAmex–2009–81). The www.nyse.com. of filing of the proposed rule change, or such Exchange implemented these rule changes for both 7 15 U.S.C. 78f(b)(5). shorter time as designated by the Commission. The NYSE and NYSE Amex Equities on March 1, 2010. 8 15 U.S.C. 78k–1(a)(1). Exchange has satisfied this requirement.
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Electronic Comments DEPARTMENT OF STATE the export of defense articles, including technical data, and defense services in the • Use the Commission’s Internet [Public Notice 6953] amount of $50,000,000 or more. comment form (http://www.sec.gov/ The transaction contained in the attached Bureau of Political-Military Affairs: rules/sro.shtml); or certification involves the export of defense Directorate of Defense Trade Controls; articles, including technical data, and • Send an e-mail to rule- Notifications to the Congress of defense services for the transfer of Phalanx [email protected]. Please include File Proposed Commercial Export Licenses Close-In Weapon System Block 1B Baseline Number SR–NYSEAmex–2010–34 on 1 systems, including spare and repair parts, the subject line. SUMMARY: Notice is hereby given that installation, and maintenance, for end use by the Department of State has forwarded the Government of the United Arab Emirates. Paper Comments the attached Notifications of Proposed The United States Government is prepared to license the transfer of these items having • Export Licenses to the Congress on the Send paper comments in triplicate dates indicated on the attachments taken into account political, military, economic, human rights and arms control to Elizabeth M. Murphy, Secretary, pursuant to sections 36(c) and 36(d) and Securities and Exchange Commission, considerations. in compliance with section 36(f) of the More detailed information is contained in 100 F Street, NE., Washington, DC Arms Export Control Act (22 U.S.C. the formal certification which, though 20549–1090. 2776). unclassified, contains business information All submissions should refer to File submitted to the Department of State by the DATES: Effective Date: As shown on each applicant, publication of which could cause Number SR–NYSEAmex–2010–34. This of the 18 letters. competitive harm to the United States firm file number should be included on the FOR FURTHER INFORMATION CONTACT: Mr. concerned. subject line if e-mail is used. To help the Robert S. Kovac, Managing Director, Sincerely, Commission process and review your Directorate of Defense Trade Controls, Richard R. Verma, comments more efficiently, please use Bureau of Political-Military Affairs, Assistant Secretary Legislative Affairs. only one method. The Commission will Department of State (202) 663–2861. March 26, 2010 (Transmittal No. DDTC 10– post all comments on the Commission’s SUPPLEMENTARY INFORMATION: Section 003.) Internet Web site (http://www.sec.gov/ 36(f) of the Arms Export Control Act Hon. Nancy Pelosi, Speaker of the House of Representatives. rules/sro.shtml). Copies of the mandates that notifications to the submission, all subsequent Congress pursuant to sections 36(c) and Dear Madam Speaker: Pursuant to Section 36(c) of the Arms Export Control Act, I am amendments, all written statements 36(d) must be published in the Federal transmitting, herewith, certification of a with respect to the proposed rule Register when they are transmitted to proposed technical assistance agreement for change that are filed with the Congress or as soon thereafter as the export of defense articles, including Commission, and all written practicable. technical data, and defense services in the communications relating to the March 19, 2010 (Transmittal No. DDTC 09– amount of $50,000,000 or more. proposed rule change between the 142.) The transaction contained in the attached certification involves the transfer of defense Commission and any person, other than Hon. Nancy Pelosi, Speaker of the House of Representatives. articles, to include technical data, and those that may be withheld from the defense services to support the Proton launch public in accordance with the Dear Madam Speaker: Pursuant to Section of the Astra 1 N Commercial provisions of 5 U.S.C. 552, will be 36(d) of the Arms Export Control Act, I am Communications Satellite from the Baikonur available for Web site viewing and transmitting, herewith, certification of a Cosmodrome in Kazakhstan. proposed manufacturing license agreement printing in the Commission’s Public The United States Government is prepared for the manufacture of significant military to license the export of these items having Reference Room on official business equipment abroad. taken into account political, military, days between the hours of 10 a.m. and The transaction contained in the attached economic, human rights and arms control 3 p.m. Copies of such filing also will be certification involves the export of defense considerations. available for inspection and copying at articles, including technical data, and More detailed information is contained in the principal office of the Exchange. All defense services for the manufacture in Spain the formal certification which, though of the MK47 40mm Automatic Grenade comments received will be posted unclassified, contains business information Launcher. The United States Government is submitted to the Department of State by the without change; the Commission does prepared to license the export of these items applicant, publication of which could cause not edit personal identifying having taken into account political, military, competitive harm to the United States firm information from submissions. You economic, human rights and arms control concerned. should submit only information that considerations. Sincerely, you wish to make available publicly. All More detailed information is contained in Richard R. Verma, the formal certification which, though Assistant Secretary Legislative Affairs. submissions should refer to File unclassified, contains business information Number SR–NYSEAmex–2010–34 and submitted to the Department of State by the March 19, 2010 (Transmittal No. DDTC 10– should be submitted on or before May applicant, publication of which could cause 004.) 4, 2010. competitive harm to the United States firm Hon. Nancy Pelosi, Speaker of the House of concerned. Representatives. For the Commission, by the Division of Sincerely, Dear Madam Speaker: Pursuant to Section Trading and Markets, pursuant to delegated Richard R. Verma, 36(c) of the Arms Export Control Act, as authority.11 Assistant Secretary Legislative Affairs. amended, I am transmitting, herewith, Florence E. Harmon, certification of application proposed March 5, 2010 (Transmittal No. DDTC 09– technical assistance agreement to include the Deputy Secretary. 153.) export of defense articles, to include [FR Doc. 2010–8362 Filed 4–12–10; 8:45 am] Hon. Nancy Pelosi, Speaker of the House of technical data, and defense services in the BILLING CODE 8011–01–P Representatives. amount of $50,000,000 or more. Dear Madam Speaker: Pursuant to Section The transactions contained in the attached 36(c) of the Arms Export Control Act, I am certification involves the transfer of defense transmitting, herewith, certification of a articles, to include technical data, and 11 17 CFR 200.30–3(a)(12). proposed technical assistance agreement for defense services to support the Proton launch
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of the SIRIUS XM–5 Commercial unclassified, contains business information Sincerely, Communication Satellite from the Baikonur submitted to the Department of State by the Richard R. Verma, Cosmodrome in Kazakhstan. applicant, publication of which could cause Assistant Secretary Legislative Affairs. The United States Government is prepared competitive harm to the United States firm to license the export of these items having concerned. March 19, 2010 (Transmittal No. DDTC 10– taken into account political, military, Sincerely, 013.) economic, human rights and arms control Hon. Nancy Pelosi, Speaker of the House of Richard R. Verma, Representatives. considerations. Assistant Secretary Legislative Affairs. More detailed information is contained in Dear Madam Speaker: Pursuant to Section the formal certification which, though March 19, 2010 (Transmittal No. DDTC 10– 36(d) of the Arms Export Control Act, I am unclassified, contains business information 010.) transmitting, herewith, certification of a submitted to the Department of State by the Hon. Nancy Pelosi, Speaker of the House of proposed manufacturing license agreement applicant, publication of which could cause Representatives. for the manufacture of significant military competitive harm to the United States firm Dear Madam Speaker: Pursuant to Sections equipment abroad. concerned. 36 (c) and (d) of the Arms Export Control Act, The transaction contained in the attached Sincerely, I am transmitting, herewith, certification of a certification involves the export of defense Richard R. Verma, proposed manufacturing license agreement articles, including technical data, and Assistant Secretary Legislative Affairs. for the manufacture of significant military defense services for the continued equipment abroad that also exceeds manufacture of Advanced Rail Launchers for March 19, 2010 (Transmittal No. DDTC 10– $100,000,000. end use on the F–35 Lightning II aircraft for 006.) The transaction described in the attached the U.S. government. Hon. Nancy Pelosi, Speaker of the House of certification involves the export of defense The United States Government is prepared Representatives. articles, including technical data, and to license the export of these items having Dear Madam Speaker: Pursuant to Section defense services for the manufacture of MK73 taken into account political, military, 36(c) of the Arms Export Control Act, I am Mod 3 Solid State Transmitters, economic, human rights and arms control transmitting, herewith, certification of a subassemblies and associated components, considerations. technical assistance agreement for the export and piece parts for the NATO Seasparrow More detailed information is contained in of defense articles, to include technical data, Program for the United States government, the formal certification which, though and defense services in the amount of NATO Consortium Member Countries, and unclassified, contains business information $50,000,000 or more. other approved non-NATO member submitted to the Department of State by the The transaction contained in the attached countries. applicant, publication of which could cause certification involves the export of defense The United States Government is prepared competitive harm to the United States firm articles, including technical data, and to license the export of these items having concerned. defense services, to support the Proton taken into account political, military, Sincerely, launch of the KA–SAT Commercial economic, human rights and arms control Richard R. Verma, Communication Satellite from the Baikonur considerations. Assistant Secretary Legislative Affairs. Cosmodrome in Kazakhstan. More detailed information is contained in The United States Government is prepared the formal certification which, though March 26, 2010 (Transmittal No. DDTC 10– to license the export of these items having unclassified, contains business information 015.) taken into account political, military, submitted to the Department of State by the Hon. Nancy Pelosi, Speaker of the House of economic, human rights and arms control applicant, publication of which could cause Representatives. considerations. competitive harm to the United States firm Dear Madam Speaker: Pursuant to Section More detailed information is contained in concerned. 36(c) of the Arms Export Control Act, I am the formal certification which, though Sincerely, transmitting, herewith, certification of a unclassified, contains business information Richard R. Verma, proposed manufacturing license agreement submitted to the Department of State by the Assistant Secretary Legislative Affairs. for the export of defense articles, to include applicant, publication of which could cause technical data, and defense services in the competitive harm to the United States firm March 19, 2010 (Transmittal No. DDTC 10– amount of $50,000,000 or more. concerned. 012.) The transaction contained in the attached Sincerely, Hon. Nancy Pelosi, Speaker of the House of certification involves the export of defense Representatives. Richard R. Verma, articles, to include technical data, and Assistant Secretary Legislative Affairs. Dear Madam Speaker: Pursuant to Section defense services to Israel to support the 36(c) and Section 36(d) of the Arms Export manufacture of the Video Matrix Switch with March 26, 2010 (Transmittal No. DDTC 10– Control Act, I am transmitting, herewith, Quad Processor (VMS–Q). 009.) certification of a proposed manufacturing The United States Government is prepared Hon. Nancy Pelosi, Speaker of the House of license agreement for the manufacture of to license the export of these items having Representatives. significant military equipment abroad in the taken into account political, military, Dear Madam Speaker: Pursuant to Section amount of $100,000,000 or more. economic, human rights and arms control 36s(c) and (d) of the Arms Export Control The transaction contained in the attached considerations. Act, I am transmitting, herewith, certification certification involves the export of defense More detailed information is contained in of a proposed manufacturing license articles, including technical data, and the formal certification which, though agreement for manufacture of significant defense services for the continued unclassified, contains business information military equipment abroad. manufacture of J79–GE–15A and –17A submitted to the Department of State by the The transaction contained in the attached engines for end use by the Korean Ministry applicant, publication of which could cause certification involves the export of defense of Defense in their F–4 aircraft. competitive harm to the United States firm articles, including technical data, and The United States Government is prepared concerned. defense services for the manufacture of to license the export of these items having Sincerely, Combat Identification System Products, taken into account political, military, Richard R. Verma, Subsystems, and Ancillary Equipment for the economic, human rights and arms control Assistant Secretary Legislative Affairs. Italian Ministry of Defense. considerations. The United States Government is prepared More detailed information is contained in March 26, 2010 (Transmittal No. DDTC 10– to license the export of these items having the formal certification which, though 016.) taken into account political, military, unclassified, contains business information Hon. Nancy Pelosi, Speaker of the House of economic, human rights and arms control submitted to the Department of State by the Representatives. considerations. applicant, publication of which could cause Dear Madam Speaker: Pursuant to Sections More detailed information is contained in competitive harm to the United States firm 36(c) and 36(d) of the Arms Export Control the formal certification which, though concerned. Act, I am transmitting, herewith, certification
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of a proposed manufacturing license manufacture the Integrated Color Display economic, human rights and arms control agreement for the manufacture of significant System for modernization of the Republic of considerations. military equipment abroad. China (Taiwan) Air Force Indigenous Defense More detailed information is contained in The transaction contained in the attached Fighter. the formal certification which, though certification involves the export of defense The United States Government is prepared unclassified, contains business information articles, including technical data, and to license the export of these items having submitted to the Department of State by the defense services for the continued taken into account political, military, applicant, publication of which could cause manufacture of M791, M792, and M793 economic, human rights and arms control competitive harm to the United States firm Ammunition and Components thereof for considerations. concerned. sale to the Turkish Ministry of Defense, as More detailed information is contained in Sincerely, well as buyers in the approved sales territory. the formal certification which, though Richard R. Verma, The United States Government is prepared unclassified, contains business information Assistant Secretary Legislative Affairs. to license the export of these items having submitted to the Department of State by the March 26, 2010 (Transmittal No. DDTC 10– taken into account political, military, applicant, publication of which could cause 023.) economic, human rights and arms control competitive harm to the United States firm Hon. Nancy Pelosi, Speaker of the House of considerations. concerned. Representatives. More detailed information is contained in Sincerely, the formal certification which, though Dear Madam Speaker: Pursuant to Section unclassified, contains business information Richard R. Verma, 36(d) of the Arms Export Control Act, I am submitted to the Department of State by the Assistant Secretary Legislative Affairs. transmitting, herewith, certification of a applicant, publication of which could cause March 10, 2010 (Transmittal No. DDTC 10– proposed amendment to a manufacturing competitive harm to the United States firm 020.) license agreement for the manufacture of concerned. Hon. Nancy Pelosi, Speaker of the House of significant military equipment abroad. Sincerely, Representatives. The transaction contained in the attached certification involves the transfer of defense Richard R. Verma, Dear Madam Speaker: Pursuant to Section articles, including technical data, and Assistant Secretary Legislative Affairs. 36(c) and 36(d) of the Arms Export Control defense services for the manufacture of Small March 19, 2010 (Transmittal No. DDTC 10– Act, I am transmitting, herewith, certification Diameter Bomb Increment I (SDB I) Weapon 018.) of a proposed amendment to a manufacturing System in Italy for end-use by the Italian Air Hon. Nancy Pelosi, Speaker of the House of license agreement for the manufacture of Force. Representatives. significant military equipment abroad in the The United States Government is prepared amount of $100,000,000 or more. Dear Madam Speaker: Pursuant to Sections to license the export of these items having 36(c) and 36(d) of the Arms Export Control The transaction contained in the attached taken into account political, military, Act, I am transmitting, herewith, certification certification involves the export of defense economic, human rights and arms control of a proposed amendment to a manufacturing articles, including technical data, and considerations. license agreement for the manufacture of defense services for the manufacture of the More detailed information is contained in significant military equipment abroad. Long Range Chinook Helicopter Variant (CH– the formal certification which, though The transaction contained in the attached 47JA+) and the modification of CH–47JA unclassified, contains business information certification involves the transfer of defense helicopters for the Japanese Ministry of submitted to the Department of State by the articles, including technical data, and Defense. applicant, publication of which could cause defense services for the manufacture of The United States Government is prepared competitive harm to the United States firm F404–F414, and T64 aircraft engine to license the export of these items having concerned. components to supply General Electric taken into account political, military, Sincerely, Aviation’s production lines in the United economic, human rights and arms control Richard R. Verma, States. considerations. Assistant Secretary Legislative Affairs. The United States Government is prepared More detailed information is contained in the formal certification which, though March 19, 2010 (Transmittal No. DDTC 10– to license the export of these items having 025.) taken into account political, military, unclassified, contains business information submitted to the Department of State by the Hon. Nancy Pelosi, Speaker of the House of economic, human rights and arms control Representatives. considerations. applicant, publication of which could cause More detailed information is contained in competitive harm to the United States firm Dear Madam Speaker: Pursuant to Sections the formal certification which, though concerned. 36(c) and 36(d) of the Arms Export Control unclassified, contains business information Sincerely, Act, I am transmitting, herewith, certification submitted to the Department of State by the Richard R. Verma, of a proposed manufacturing license applicant, publication of which could cause Assistant Secretary Legislative Affairs. agreement for the manufacture of significant competitive harm to the United States firm military equipment abroad. March 19, 2010 (Transmittal No. DDTC 10– The transaction contained in the attached concerned. 022.) Sincerely, certification involves the export of defense Hon. Nancy Pelosi, Speaker of the House of articles, including technical data, and Richard R. Verma, Representatives. defense services for continued support for Assistant Secretary Legislative Affairs. Dear Madam Speaker: Pursuant to Section the manufacture of F110–GE–129 engines March 26, 2010 (Transmittal No. DDTC 10– 36(c) of the Arms Export Control Act, I am powering the Japanese Ministry of Defense’s 019.) transmitting, herewith, certification of a F–2 aircraft. Hon. Nancy Pelosi, Speaker of the House of proposed manufacturing license agreement The United States Government is prepared Representatives. for the export of defense articles, to include to license the export of these items having Dear Madam Speaker: Pursuant to Section technical data, and defense services in the taken into account political, military, 36(c) of the Arms Export Control Act, I am amount of $100,000,000 or more. economic, human rights and arms control transmitting, herewith, certification of a The transaction contained in the attached considerations. proposed amendment to a technical certification involves the export of defense More detailed information is contained in assistance agreement for the export of articles, including technical data, and the formal certification which, though defense articles, to include technical data, defense services to Japan to provide unclassified, contains business information and defense services in the amount of continued support for the manufacture of submitted to the Department of State by the $50,000,000 or more. engine fuel control devices for the Japanese applicant, publication of which could cause The transaction contained in the attached Ministry of Defense’s F–15J aircraft. competitive harm to the United States firm certification involves the export of defense The United States Government is prepared concerned. articles, to include technical data, and to license the export of these items having Sincerely, defense services to develop, integrate, and taken into account political, military, Richard R. Verma,
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Assistant Secretary Legislative Affairs. Information Policy, Economic, Energy Program (AIP), and 49 U.S.C. part A, Air March 26, 2010 (Transmittal No. DDTC 10– and Business Affairs Bureau, U.S. Commerce Safety, and part B, Airport 026.) Department of State, at (202) 647–5231. Development and Noise. Hon. Nancy Pelosi, Speaker of the House of Dated: March 26, 2010. ADDRESSES: Send comments to the FAA Representatives. Joseph Burton, at the following address: Ms. Carla Dear Madam Speaker: Pursuant to Section Mauney, Room 712, Federal Aviation 36(c) and Section 36(d) of the Arms Export Designated Federal Officer, U.S. Department Control Act, I am transmitting, herewith, of State. Administration, IT Enterprises Business certification of a proposed manufacturing [FR Doc. 2010–8396 Filed 4–12–10; 8:45 am] Services Division, AES–200, 800 license agreement for the manufacture of BILLING CODE 4710–07–P Independence Ave., SW., Washington, significant military equipment abroad in the DC 20591. amount of $100,000,000 or more. Comments are invited on: Whether The transaction contained in the attached DEPARTMENT OF TRANSPORTATION the proposed collection of information certification involves the Export of defense is necessary for the proper performance articles, including technical data and defense services for continued support for the Federal Aviation Administration of the functions of the Department, manufacture of the T55–L712 and 55–L714A including whether the information will engines powering the Japanese Ministry of Notice of Intent To Request Revision have practical utility; the accuracy of Defense’s CH–47J Helicopter. From the Office of Management and the Department’s estimates of the The United States Government is prepared Budget of a Currently Approved burden of the proposed information to license the export of these items having Information Collection Activity, collection; ways to enhance the quality, taken into account political, military, Request for Comments; Air Taxi and utility and clarity of the information to economic, human rights and arms control Commercial Operator Airport Activity be collected; and ways to minimize the considerations. Survey burden of the collection of information More detailed information is contained in on respondents, including the use of the formal certification which, though AGENCY: Federal Aviation automated collection techniques or unclassified, contains business information Administration (FAA), DOT. submitted to the Department of State by the other forms of information technology. ACTION: applicant, publication of which could cause Notice and request for comments. Issued in Washington, DC, on April 7, competitive harm to the United States firm 2010. concerned. Carla Mauney, Sincerely, SUMMARY: The FAA invites public comments about our intention to request FAA Information Collection Clearance Richard R. Verma, Officer, IT Enterprises Business Services Assistant Secretary Legislative Affairs. the Office of Management and Budget (OMB) to approve a current information Division, AES–200. Dated: April 1, 2010. collection. Enplanement data collected [FR Doc. 2010–8414 Filed 4–12–10; 8:45 am] Robert S. Kovac, from air taxi and commercial operators BILLING CODE 4910–13–P Managing Director, Directorate of Defense are required for the calculation of air Trade Controls, Department of State. carrier airport sponsor apportionments [FR Doc. 2010–8397 Filed 4–12–10; 8:45 am] as specified by the Airport Improvement DEPARTMENT OF TRANSPORTATION BILLING CODE 4710–25–P Program (AIP), and 49 U.S.C. part A, Air Commerce Safety, and part B, Airport Federal Aviation Administration Development and Noise. DEPARTMENT OF STATE Notice of Intent To Request Revision DATES: Please submit comments by June From the Office of Management and [Public Notice 6602] 14, 2010. Budget of a Currently Approved FOR FURTHER INFORMATION CONTACT: Information Collection Activity, Advisory Committee on International Carla Mauney on (202) 267–9895, or by Request for Comments; Certification: Communications and Information e-mail at: [email protected]. Pilots and Flight Instructors Policy; Notice of Committee Renewal SUPPLEMENTARY INFORMATION: The Department of State has renewed AGENCY: Federal Aviation Federal Aviation Administration (FAA) the Charter of the Advisory Committee Administration (FAA), DOT. on International Communications and Title: Air Taxi and Commercial ACTION: Notice and request for Information Policy (ACICIP) for an Operator Airport Activity Survey. comments. additional two years. Type of Request: Extension without The Committee serves the Department change of an approved collection. SUMMARY: The FAA invites public of State in a solely advisory capacity OMB Control Number: 2120–0067 comments about our intention to request regarding current issues and concerns Form(s): Form 1800–31. the Office of Management and Budget affecting international communications Affected Public: A total of 302 (OMB) to approve a current information and information policy. ACICIP Respondents. collection. 14 CFR part 61 prescribes members are private sector Frequency: The information is certification standards for pilots, flight communications and information collected on occasion. instructors, and ground instructors. The technology specialists from U.S. Estimated Average Burden per information collected is used to telecommunications companies, trade Response: Approximately 1.5 hours per determine compliance with applicant associations, policy institutions, and response. eligibility. academia. The Committee meets at least Estimated Annual Burden Hours: An DATES: Please submit comments by June annually. estimated 453 hours annually. 14, 2010. For further information, please call Abstract: Enplanement data collected Joseph Burton, Executive Secretary, from air taxi and commercial operators FOR FURTHER INFORMATION CONTACT: Advisory Committee on International are required for the calculation of air Carla Mauney on (202) 267–9895, or by Communications and Information carrier airport sponsor apportionments e-mail at: [email protected]. Policy, Office of Communications and as specified by the Airport Improvement SUPPLEMENTARY INFORMATION:
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Federal Aviation Administration (FAA) ACTION: Notice and request for Issued in Washington, DC, on April 7, 2010. Title: Certification: Pilots and Flight comments. Instructors. Carla Mauney, SUMMARY: Type of Request: Extension without The FAA invites public FAA Information Collection Clearance change of an approved collection. comments about our intention to request Officer, IT Enterprises Business Services OMB Control Number: 2120–0021. the Office of Management and Budget Division, AES–200. Form(s): Form 8710–1. (OMB) to approve a current information [FR Doc. 2010–8417 Filed 4–12–10; 8:45 am] Affected Public: A total of 143,000 collection. 49 U.S.C. Section 44718 BILLING CODE 4910–13–P Respondents. states that the Secretary of Frequency: The information is Transportation shall require notice of collected on occasion. structures that may affect navigable DEPARTMENT OF TRANSPORTATION Estimated Average Burden per airspace, air commerce, or air capacity. Federal Highway Administration Response: Approximately 2.15 hours DATES: Please submit comments by June per response. 14, 2010. Environmental Impact Statement: Estimated Annual Burden Hours: An Bexar County, TX estimated 308,350 hours annually. FOR FURTHER INFORMATION CONTACT: Carla Mauney on (202) 267–9895, or by Abstract: 14 CFR part 61 prescribes AGENCY: Federal Highway e-mail at: [email protected]. certification standards for pilots, flight Administration (FHWA), DOT. instructors, and ground instructors. The SUPPLEMENTARY INFORMATION: ACTION: Amended notice of intent. information collected is used to Federal Aviation Administration (FAA) determine compliance with applicant SUMMARY: The Federal Highway eligibility. Title: Notice of Proposed Construction Administration (FHWA), Texas ADDRESSES: Send comments to the FAA or Alteration, Notice of Actual Department of Transportation (TxDOT) at the following address: Ms. Carla Construction or Alteration, Project and Alamo Regional Mobility Authority Mauney, Room 712, Federal Aviation Status Report. (Alamo RMA) issued a notice of intent Administration, IT Enterprises Business Type of Request: Extension without to advise the public that an Services Division, AES–200, 800 change of an approved collection. Environmental Impact Statement (EIS) Independence Ave., SW., Washington, OMB Control Number: 2120–0001. would be prepared for proposed DC 20591. Forms(s): 7460–1, 7460–2. improvements to Loop 1604 in San Comments are invited on: Whether Affected Public: A total of 70,400 Antonio, Texas, within Bexar County the proposed collection of information Respondents. limits to enhance mobility and improve is necessary for the proper performance safety from FM 1957 to IH 35 North, a of the functions of the Department, Frequency: The information is distance of approximately 32.35 miles including whether the information will collected on occasion. in Bexar County Texas. FHWA, TxDOT have practical utility; the accuracy of Estimated Average Burden per and Alamo RMA are issuing this the Department’s estimates of the Response: Approximately 12 minutes amended notice of intent to advise the burden of the proposed information per response. public of changes to the aforementioned collection; ways to enhance the quality, Estimated Annual Burden Hours: An EIS for proposed Loop 1604 utility and clarity of the information to estimated 14,596 hours annually. improvements. Specifically, the be collected; and ways to minimize the Abstract: 49 U.S.C. 44718 states that southwestern limit of the proposed burden of the collection of information the Secretary of Transportation shall improvements is changing from FM on respondents, including the use of require notice of structures that may 1957 to U.S. Highway 90 for a total automated collection techniques or affect navigable airspace, air commerce, distance of approximately 37 miles. The other forms of information technology. or air capacity. These notice change to the limits of the proposed Issued in Washington, DC, on April 7, requirements are contained in 14 CFR improvements is consistent with the 2010. part 77. updated San Antonio-Bexar County Carla Mauney, ADDRESSES: Send comments to the FAA Metropolitan Planning Organization FAA Information Collection Clearance at the following address: Ms. Carla Mobility 2035 Plan (December 2009) Officer, IT Enterprises Business Services Mauney, Room 712, Federal Aviation and in response to comments received Division, AES–200. Administration, IT Enterprises Business during the first scoping meetings held in [FR Doc. 2010–8416 Filed 4–12–10; 8:45 am] Services Division, AES–200, 800 October 2009. BILLING CODE 4910–13–P Independence Ave., SW., Washington, FOR FURTHER INFORMATION CONTACT: Mr. DC 20591. Salvador Deocampo, District Engineer, Comments are invited on: Whether District A, Federal Highway DEPARTMENT OF TRANSPORTATION the proposed collection of information Administration, Texas Division, 300 is necessary for the proper performance East 8th Street, Room 826, Austin, Federal Aviation Administration of the functions of the Department, Texas, 78701. Phone: 512–536–5950 SUPPLEMENTARY INFORMATION: Notice of Intent To Request Revision including whether the information will FHWA in From the Office of Management and have practical utility; the accuracy of cooperation with TxDOT and the Alamo Budget of a Currently Approved the Department’s estimates of the RMA issued a Notice of Intent on July Information Collection Activity, burden of the proposed information 31, 2009, advising the public that they Request for Comments; Notice of collection; ways to enhance the quality, would be preparing an EIS for Proposed Construction or Alteration, utility and clarity of the information to transportation improvements to Loop Notice of Actual Construction or be collected; and ways to minimize the 1604 from FM 1957 to IH 35 North, a Alteration, Project Status Report burden of the collection of information distance of approximately 32.35 miles. on respondents, including the use of Since then, FHWA, TxDOT and the AGENCY: Federal Aviation automated collection techniques or Alamo RMA approved the Draft Project Administration (FAA), DOT. other forms of information technology. Coordination Plan, the Draft Need and
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Purpose, convened two meetings with a SAFETEA–LU, cooperating agencies, submitted electronically through the Community Advisory Group, held a participating agencies, and the public GRANTS.GOV APPLY function. Anyone meeting with Participating and will be given an opportunity for input intending to apply electronically Cooperating Agencies and held a series in the development of the project. The through GRANTS.GOV should initiate of Public Scoping meetings. Based on second series of public scoping the process of registering on the public input and studies conducted to meetings, conducted in an open house GRANTS.GOV site immediately to date, FHWA, TxDOT and Alamo RMA format, is planned to be held in April of ensure completion of registration before now propose to include an additional 2010. the deadline for submission. Those who segment from FM 1957 to U.S. 90 in the Issued on: April 7, 2010. apply via GRANTS.GOV should receive EIS so that the limits of the proposed Salvador Deocampo, two confirmation e-mails. The first will improvements would be from U.S. 90 to District Engineer, Austin, Texas. confirm that the application was IH 35 North, a total distance of received and a subsequent e-mail will [FR Doc. 2010–8439 Filed 4–12–10; 8:45 am] approximately 37 miles. The additional be sent indicating whether the segment between FM 1957 and U.S. 90 BILLING CODE 4910–RY–P application was validated or rejected by is described in the San Antonio-Bexar the system. County Metropolitan Planning DEPARTMENT OF TRANSPORTATION TIGGER program proposals must be Organization’s Mobility 2035 Plan submitted by August 11, 2010. (adopted December 7, 2009) as added Federal Transit Administration Applicants are encouraged to submit capacity improvements consisting of applications early in order to allow for expanding the existing facility to a four FY 2010 Discretionary Sustainability full consideration by FTA. Instructions lane expressway with four toll Funding Opportunity; Transit for applying for the TIGGER program mainlanes and four non-toll outer lanes. Investments for Greenhouse Gas and can be found at http://www.fta.dot.gov/ The need for improvements within the Energy Reduction (TIGGER) Program tigger and will also be available in the additional segment relate to and Clean Fuels Grant Program, ‘‘FIND’’ module of grants.gov. compromised safety, decreased Augmented With Discretionary Bus FOR FURTHER INFORMATION CONTACT: mobility, and operational deficiencies and Bus Facilities Program attributed to substantial growth in Contact the appropriate FTA Regional traffic. The purpose of adding the AGENCY: Federal Transit Administration Administrator (Appendix A) for proposed segment is to address these (FTA), DOT. proposal-specific information and needs by upgrading the existing ACTION: Notice of availability of FTA issues. For general program information roadway to current design standards to environmental sustainability program on the TIGGER program, contact Walter improve safety, enhance mobility and funds: solicitation of project proposals. Kulyk, Office of Mobility Innovation, improve operational efficiency. (202) 366–4995, e-mail: SUMMARY: Anticipated Federal permits, pending The Federal Transit [email protected]. For program selection of alternatives and field Administration (FTA) announces the information on the Clean Fuels/Bus and surveys may include, but are not limited availability of discretionary funds in Bus Facilities Program; contact Juan to, the following: Section 401/404 Fiscal Year (FY) 2010 for the Transit Morrison, Office of Program (Clean Water Act), and Section 7 Investments for Greenhouse Gas and Management, (202) 366 –7005, e-mail: (Endangered Species Act). The Draft Energy Reduction (TIGGER) program [email protected]. A TDD is Project Coordination Plan will be funds and FY 2009 and 2010 Clean available at 1–800–877–8339 (TDD/ updated in accordance with Public Law Fuels Grant program funds, augmented FIRS). with FY 2010 Section 5309 Bus and Bus 109–59, Safe, Accountable, Flexible, SUPPLEMENTARY INFORMATION: Efficient Transportation Equity Act: A Facilities program funds. These Legacy for Users (SAFETEA–LU), Title discretionary program funds will be Table of Contents distributed in accordance with the VI, section 6002, Efficient I. FTA Sustainability Program Overview Environmental Reviews for Project mission of each program and in support of the U.S. Department of II. Sustainability Program Information Decision Making, August 10, 2005, to A. Transit Investments for Greenhouse Gas reflect the change in project limits. The Transportation’s (DOT) environmental and Energy Reduction (TIGGER) Program Project Coordination Plan will continue sustainability efforts. 1. Program Purpose to promote early and continuous This notice includes priorities 2. Eligible Applicants involvement from stakeholders, established by FTA for these 3. Eligible Projects agencies, and the public as well as discretionary funds, the criteria FTA 4. Cost Sharing or Matching describe the proposed project, the roles will use to identify meritorious projects 5. Application Content for funding, and describes how to apply 6. Evaluation Criteria of the agencies and the public, the 7. Award Administration Information project need and purpose, schedule, for funding under each discretionary program. This announcement is B. Clean Fuels/Bus and Bus Facilities level of detail for alternatives analysis, Program methodologies to be used in the available on the FTA Web site at: 1. Program Purpose environmental analysis, and the http://www.fta.dot.gov. FTA will 2. Eligible Applicants proposed process for coordination and announce final selections on the Web 3. Eligible Projects communication. site and in the Federal Register. A 4. Cost Sharing or Matching The Revised Project Coordination synopsis of each funding opportunity 5. Application Content Plan will be available for public review, will be posted in the FIND module of 6. Evaluation Criteria input, and comments at public the government-wide electronic grants III. Technical Assistance meetings, including scoping meetings Web site at Appendix A FTA Regional and http://www.grants.gov. Metropolitan Offices and hearings held in accordance with Appendix B Glossary of Terms (TIGGER the National Environmental Policy Act DATES: Complete proposals for Clean Program) (NEPA) through the evaluation process, Fuels/Bus and Bus Facilities Appendix C TIGGER Project Proposal and upon request at the Alamo RMA’s discretionary grants must be submitted Outline office. Pursuant to section 6002 of by June 14, 2010. All proposals must be Appendix D Program Matrix
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I. FTA Sustainability Program emissions and other pollutants. Projects This notice announces the availability Overview funded as a result of this notice will of the grant program funding, further the Department’s environmental application requirements, and deadlines A. Authority sustainability efforts. To support these for submitting proposals for funding. These programs are authorized under efforts, and to ensure FTA is able to 1. Program Purpose section 5308, 5309(b) (as amended by fund a wide variety of investment types, the Safe, Accountable, Flexible, FTA intends to provide funds from the There are two eligible purposes for Efficient, Transportation Equity Act: A TIGGER program and Clean Fuels Grant TIGGER grants: (1) For capital Legacy for Users (SAFETEA–LU)) and program, augmented with Section 5309 investments that will assist in reducing Division A of the Transportation, Bus and Bus Facilities program funds in the energy consumption of a transit Housing and Urban Development, and support of capital investment that will system; or (2) for capital investments Related Agencies Appropriations Act improve energy efficiency and reduce that will reduce greenhouse gas 2010. emissions. As each program has emissions of a public transportation system. Project proposals may be B. Policy Priority separate eligibility and program requirements, FTA encourages submitted under either or both Among the goals of the Obama applicants to carefully consider which categories; however only one project Administration is one to improve our program to apply under. FTA will may be submitted under a single Nation’s environment and to secure its provide $75 million under the TIGGER proposal. FTA has established a range of energy future. Effective provision of program. This program is intended for funding that will be considered for public transportation is a key part of projects of innovative and national approval. Each submitted project must this goal. The Administration believes significance with a minimum project request a minimum of $1,000,000 and that we must commit ourselves to an cost of $1 million. To complement must not exceed a maximum of economic future in which the strength TIGGER, FTA also will award $25,000,000. Applications for projects of our economy is not tied to the approximately $81.2 million under the less than $1,000,000 may be applied for unpredictability of oil markets. We must Clean Fuels Grant program. FTA also if they are part of a consolidated make the investments in clean energy intends to further our environmental proposal submitted by the State sources that will both enhance the sustainability goals by allowing Department of Transportation (State environment through improved air applicants not eligible under the Clean DOT) that, in total, meets or exceeds the quality and curb our dependence on Fuels Grant program to apply for $1,000,000 threshold. FTA may decide fossil fuels, making America energy projects which promote the use of clean to provide only partial funding for independent by: certain proposals to maximize the • fuels and fund those projects with Breaking Dependence on Oil. additional Bus and Bus Facilities impact of this program. FTA encourages Provide increased public transportation program funds. applicants with projects that are not options that minimize the use of fossil technologically innovative, or which do fuels and invest in the development of II. Sustainability Program Information not meet these funding thresholds, to alternative fuel vehicles. A. TIGGER Program apply under the Bus and Bus Facilities • Producing More Energy at Home. or Clean Fuels programs, which have Enhance U.S. energy supplies through The Transportation, Housing and simpler application criteria. responsible development of domestic Urban Development, and Related 2. Eligible Applicants renewable energy, fossil fuels, advanced Agencies Appropriations Act 2010 (Pub. biofuels and nuclear energy. L. 111–68), appropriated $75 million for Only public transportation agencies or • Promoting Energy Efficiency. grants to public transit agencies for State DOTs may apply. Unlike the Promote investments in the capital investments that will reduce the ARRA-funded TIGGER program, FTA transportation, electricity, industrial, energy consumption or greenhouse gas will not accept consolidated proposals building and agricultural sectors that emissions of their public transportation from public transportation agencies. A reduce energy bills. systems, referred to as the Transit public transportation agency may only FTA advances these energy and Investments for Greenhouse Gas and apply for one project for a single transit environmental goals by funding projects Energy Reduction (TIGGER) program. agency in one proposal. However, that: $100 million was previously provided public transportation agencies may • Enhance the quality of public for TIGGER in the American Recovery submit multiple proposals transportation services. and Reinvestment Act of 2009 (ARRA) (applications). A State DOT may submit • Assist nonattainment and and awarded by FTA. a consolidated proposal for multiple maintenance areas in achieving or Based on lessons learned in the projects from one or more transit maintaining the National Ambient Air application and review process from the agencies in order to meet the $1,000,000 Quality standards for ozone and carbon ARRA-funded TIGGER program, for threshold. Consolidated proposals must monoxide. which proposals exceeding $2 billion contain individual project level • Support emerging Clean Fuel and were submitted, FTA is changing some information, as described in Section 5. advanced propulsion technologies for of the application procedures for the FY Application Content, for each project transit buses and markets for those 2010-funded TIGGER program to included in the consolidated proposal. technologies. simplify the process. Additionally, Grant awards will be made for a • Reduce greenhouse gas emissions of given the availability of other FTA particular project directly to public public transportation systems. discretionary programs in FY 2010, such transportation agencies or to a State By this notice, FTA announces the as the Bus and Bus Facilities program Department of Transportation on behalf availability of at least $156.2 million in and the Clean Fuels Grant program, FTA of a public transportation agency. FY 2009 and FY 2010 discretionary will rate more favorably innovative resources to help encourage transit technologies of national significance, 3. Eligible Projects projects that promote the usage and such as electric drive and other forward- Eligible expenses must meet the development of energy efficient looking technologies, not normally following criteria: (1) The expense must technologies that reduce greenhouse gas funded out of other FTA programs. be an eligible capital expense as defined
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under 49 U.S.C. 5302(a)(1); and (2) the ii. Contact information (including or energy saving estimates were project will assist in the reduction of the contact name, address, e-mail address, calculated. Proposals also must identify energy consumption of a public phone and fax number); the process the agency will use to transportation system and/or the iii. Whether the applicant’s area is determine the actual energy savings reduction of greenhouse gas emissions attainment, non-attainment, or and/or greenhouse gas emission of a public transportation system. maintenance for ozone or CO; reductions realized once the investment iv. Description of services provided is implemented. FTA will post on its 4. Cost Sharing or Matching by the agency, including areas served; Web site (http://www.fta.dot.gov/tigger) The expected Federal share for v. Congressional district(s) served by the information or other application TIGGER grants is 90 percent, although the proposed project; tools that may be used to develop these applicants may request a different vi. If the project proposal includes calculations. Federal share. A proposed Federal share vehicles, provide existing fleet ii. Project Measurement Criteria for can be less than 90 percent, or up to 100 information, such as a current rail or Energy Reduction Projects: The proposal percent. However, applicants requesting bus fleet management plan, if not must include: a lower Federal share may be given a already on file with the FTA Regional iii. Project’s Current Annual Energy higher rating in the evaluation process, Office; and Use all else being equal. vii. A description of the technical, iv. Project’s Estimated Annual Energy legal and financial capacity of the Use 5. Application Content project sponsor. v. Project’s Estimated Annual Energy a. Proposal Submission Process (2) Project Information Savings Every proposal must: vi. Project’s Total Estimated Energy Project proposals must follow the i. Include a project management plan Savings Over Its Useful Life submission guidelines that will be to be utilized to implement the vii. Project’s Total Energy Savings as provided shortly at http:// proposed project; a Percentage of the Agency’s Total www.fta.dot.gov/tigger. A synopsis of ii. Address whether the project is to Annual Energy Use. This can be this announcement will be posted in the be evaluated under energy reduction or reported as less than one percent or the ‘‘FIND’’ module of the GRANTS.GOV. greenhouse gas reduction criteria, or both criteria; proposal must include: Mail and fax submissions will not be (a) Total Annual Energy Consumption accepted except for supplemental iii. Include the project scope, including descriptions of the proposed of the Public Transportation Agency information that cannot be sent (b) The Project’s Total Energy Savings electronically. capital investment as well as the existing system, subsystem, facility, as a percentage of the Total Annual b. Proposal Content vehicle, or component that the Energy Consumption of the Public Transportation Agency Proposals from public transit agencies investment will replace or be applied to. The project scope determines where (4) Project Measurement Criteria for may contain only one project. Unlike Greenhouse Gas Emission Reduction the ARRA-funded TIGGER program, measurement of energy reductions or greenhouse gas emissions reductions Projects: Proposals must include: FTA will not accept consolidated i. Project’s Current Annual proposals with projects from multiple will take place and must be directly related to the actual capital investment. Greenhouse Gas Emissions public transit agencies, or multiple ii. Project’s Estimated Annual It should be determined in a manner projects from one public transit agency. Greenhouse Gas Emissions that permits measurement before and Agencies may submit multiple iii. Project’s Estimated Annual after the investment to determine either proposals (applications), but each Greenhouse Gas Savings the energy savings or greenhouse gas proposal must be clearly define a iv. Project’s Total Estimated reductions, or both; separate project. See Appendix B for an Greenhouse Gas Savings over the outline of project proposal iv. Include a line-item budget for the project and its total cost. For scalable Project’s Useful Life requirements. (5) Proposed deviations from FTA projects, a scaling plan describing the Proposals from State DOTs may Circular 5010 minimum amount necessary for a contain multiple projects from one or FTA’s capital program includes the feasible project and the energy or more transit agencies in order to meet introduction of new technology, through greenhouse gas reduction impacts of a the $1,000,000 threshold. Consolidated innovative and improved products, into proposals must contain individual reduced funding level; v. State the expected useful life of the public transportation as an eligible project level information, as described investment based on accepted FTA and expense. FTA intends to apply 49 U.S.C. below, for each project included in the industry practices; 53 requirements and FTA Circular consolidated proposal. vi. Provide a project time-line 5010.1.D Grant Management Project Summary—The applicant may outlining steps from project Requirements issued on November 1, be requested to enter summary development through completion, 2008 to this program. This Circular may information about the proposed project including significant milestones such as be found at: http://www.fta.dot.gov/ _ _ into a project summary sheet or date of contract awards and dates of laws/circulars/leg reg 8640.html. The electronic application tool. Guidelines project implementation; and applicant should identify any waivers to for application procedures, further vii. Include the proposed location of these requirements it anticipates it may instructions, and application tools will the project. For facilities and other need that would affect its ability to be located on FTA’s Web site at infrastructure this means the city or introduce new technology. However, www.fta.dot.gov/tigger. Instructions for county where the infrastructure will be FTA is disinclined to grant any Buy completing and submitting the sheet located. For transit vehicles it means the America waivers. will be provided at the Web site. cities or counties where transit services (6) A project proposal should address (1) Applicant Information are likely to be provided. each of the evaluation criteria This addresses basic identifying (3) Project Measurement Information separately, except for geographic information, including: i. Proposals must provide a narrative diversity which need not be addressed i. Applicant name; describing how the greenhouse gas and/ by the applicant.
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c. Funding Restrictions vi. Other innovative approaches to b. Administrative and National Policy Only proposals from eligible reduce energy consumption or Requirements recipients for eligible activities will be greenhouse gas emissions. (1) Grant Requirements (2) National Applicability. The considered for funding (see Section II of If selected, project sponsors will national applicability of the project as this Notice). apply for a grant through TEAM and an example of energy savings or adhere to the customary FTA grant 6. Evaluation Criteria greenhouse gas reductions, including requirements of 49 U.S.C. chapter 53, whether the project could be replicated Proposals will be evaluated for their including those identified in FTA by other transit agencies regionally or ability to reduce energy consumption Circular 5010.1D and the FTA Master nationally and is consistent with FTA and/or greenhouse gas emissions of the Agreement, unless otherwise specified livability and environmental transit agency. An applicant will be in the grant agreement. Technical sustainability goals should be evaluated under both criteria if it assistance regarding these requirements demonstrated. is available from the corresponding FTA provides the necessary project (3) Project Readiness. FTA will measurement information. regional office. evaluate the proposed timeframe of the Applicants must sign and submit a. Evaluation Criteria for Energy project for timeliness and current Certifications and Assurances Consumption Reduction Projects reasonableness. before receiving a grant. If the applicant (4) Project Management. The FTA will evaluate proposals on total has already submitted the annual applicant demonstrates the capacity to Certifications and Assurances in TEAM, energy consumption savings projected carry out the project. to result from the project, and projected they do not need to be resubmitted. The i. The applicant is in a fundable status Applicant assures that it will comply energy savings of the project as a for the FTA grant program. percentage of the total energy usage of with all applicable Federal statutes, ii. The applicant’s project team regulations, executive orders, FTA the public transit agency. Refer to demonstrates the technical capacity to Appendix B for definitions. circulars, and other Federal carry out the project, including the administrative requirements in carrying b. Evaluation Criterion for Greenhouse project approach or project management out any project supported by the FTA Gas Emission Reduction Projects plan. grant. The Applicant acknowledges that iii. The applicant has the ability to FTA will evaluate proposals based on it is under a continuing obligation to collect information and demonstrate the comply with the terms and conditions the total amount of greenhouse gas results of the project for at least one year reductions projected to result from the of the grant agreement issued for its following project implementation project with FTA. The Applicant project. (5) Return on Investment. This factor understands that Federal laws, addresses the energy savings and/or c. Evaluation Criteria for All Projects regulations, policies, and administrative greenhouse gas reduction relative to the practices might be modified from time In addition, FTA will evaluate all total project cost, including the to time and may affect the proposals on the following criteria: proposed Federal and local shares. implementation of the project. The (1) Project Innovation (6) Geographic Diversity. To provide Applicant agrees that the most recent The project identifies a unique, the ability to evaluate technologies in a Federal requirements will apply to the significant, or innovative approach to wide variety of conditions, FTA may project, unless FTA issues a written reducing energy consumption or select projects to ensure there is determination otherwise. greenhouse gas emissions. sufficient geographic diversity. FTA encourages qualified projects (2) Planning Applicants are encouraged to notify that will demonstrate innovative d. Review and Selection Process the appropriate State DOT and technologies and other approaches to Proposals first will be screened by Metropolitan Planning Organization reducing energy consumption or FTA program staff. During the process, (MPO) in areas likely to be served by the greenhouse gas emissions such as FTA may seek clarifications or project funds made available under this corrections to some proposals to ensure electric drive technologies. FTA will program. Incorporation of funded adequate information is available to give some priority consideration to projects in the long-range plans and evaluate the proposal. After evaluating these projects if all other project transportation improvement programs of proposals based on the established evaluation criteria are comparable. States and metropolitan areas is Examples of innovation include: technical criteria, FTA will publish the required of all funded projects. FTA i. On-Board Vehicle Energy list of all selected projects and funding cannot obligate grant funds unless the Management (energy storage, levels in the Federal Register. project is contained in a Federally regenerative braking, fuel cells, turbines, 7. Award Administration Information approved State Transportation engine auto start/stop, etc.) Improvement Plan (STIP). a. Award ii. Electrification of Accessories (air Similarly, all environmental conditioning, air compressor, power Once proposals have been reviewed requirements must be complete before steering, etc.) and projects have been selected, FTA can obligate and award a grant in iii. Bus Design (lightweight materials, successful applicants will apply for and TEAM. component packaging, maintainability, FTA will award grant funding through etc.) FTA’s TEAM grant management system. c. Reporting Requirements iv. Rail Transit Energy Management These grants will be administered and FTA reporting requirements include (energy storage, regenerative braking, managed by FTA regional offices in standard reporting requirements solar propulsion engine systems, power accordance with the applicable Federal identified in FTA Circular 5010.1D, and load-leveling, etc.) requirements of 49 U.S.C. chapter 53. the Master Grant Agreement. In v. Locomotive Design (energy storage, Depending on award amount, FTA addition, the TIGGER program has regenerative braking, fuel cells, turbines, may require a scope and project budget additional reporting requirements. A engine auto start/stop, lightweight reduction before a grant is submitted in recipient of TIGGER funds must report material, etc.) TEAM. on an annual basis:
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(1) Actual annual energy consumed designated to receive Federal urbanized (4) The FY 2010 Appropriations Act within the project scope attributable to formula funds under 49 U.S.C. 5307. allows a 90 percent Federal share for the the investment for energy consumption b. FTA will also accept applications net capital cost of factory installed reduction projects; from direct recipients, tribes for rural hybrid electric propulsion systems and (2) Actual greenhouse gas emissions areas, and State Departments of any equipment related to such a system. within the project scope attributable to Transportation in attainment areas. For administrative simplicity, FTA the investment for greenhouse gas Note: Projects selected in attainment allows recipients to compute the reduction projects; and areas will be funded using Bus and Bus Federal share at 83 percent for eligible (3) Actual annual reductions or Facilities program funds. vehicle purchases. increases in operating costs attributable (5) FTA will not approve deferred 3. Eligible Projects to the investment for all projects. local share. Section 5308 grants authority to the B. Clean Fuels/Bus and Bus Facilities d. Bus and Bus Facilities Program Secretary to make grants under this section to assist recipients to finance For projects awarded Bus and Bus The Clean Fuels Grant program was eligible projects such as the following: Facilities funding, costs will be shared first established as the Clean Fuels (1) Purchasing or leasing clean fuel as follows: Formula Grant program in Section 3008 buses, including buses that employ a (1) 80 percent FTA/20 percent local of the Transportation Equity Act for the lightweight composite primary structure contribution for the net capital project 21st Century, Public Law 105–178, June and vans for use in revenue service. The cost, unless the grant recipient requests 9, 1998 (now codified at 49 U.S.C. Sec. purchase or lease of non-revenue a lower percentage. 5308). The program was developed to vehicles is not an eligible project; (2) (2) The Federal share may exceed 80 assist non-attainment or maintenance Constructing or leasing clean fuel bus percent for certain projects related to the areas in achieving or maintaining the facilities or electrical recharging Americans with Disabilities Act (ADA) National Ambient Air Quality Standards facilities and related equipment; (3) and the Clean Air Act (CAA) as follows: for ozone and carbon monoxide (CO). Projects relating to clean fuel, biodiesel, ADA—The Federal share is 90 percent Additionally, the program supported hybrid electric, or zero emissions for the cost of vehicle-related equipment emerging clean fuel and advanced technology buses that exhibit equivalent or facilities attributable to compliance propulsion technologies for transit or superior emissions reductions to with the ADA of 1990 (42 U.S.C. 12101 buses and markets for those existing clean fuel or hybrid electric et seq.); CAA—The Federal share is 90 technologies. FY 2009 unallocated technologies. percent for the cost of vehicle related funding and the FY 2010 Transportation Funds made available under this equipment or facilities (including clean- Appropriations Act provides $81 program cannot be used to fund fuel or alternative-fuel vehicle related million dollars in discretionary Clean operating expenses or preventive equipment or facilities) attributable to Fuels Grant program resources. maintenance. Funds made available compliance with the CAA (42 U.S.C. Additionally, FTA is expanding the under this program cannot be used to 7401 et seq.). For administrative eligible applicant pool and may fund reimburse projects that have incurred simplicity, FTA allows recipients to projects that meet the Clean Fuels Grant prior eligible expenses without a Letter compute the Federal share at 83 percent program objectives in attainment areas of No Prejudice (LONP) issued by FTA for eligible ADA and CAA vehicle using a portion of FY 2010 discretionary for the project before the costs are purchases. Bus and Bus Facilities program incurred. (3) The FY 2010 Appropriations Act resources that are available. Please Note: allows a 90 percent Federal share for the 4. Cost Sharing or Matching Subsequent to this notice, FTA will also total cost of a biodiesel bus. publish a Notice of Funding Availability c. Clean Fuels (4) The FY 2010 Appropriations Act that announces the availability of For projects awarded Clean Fuels also allows a 90 percent Federal share additional Bus and Bus Facilities funding, costs will be shared as follows: for the net capital cost of factory program funds that will assist grantees (1) Vehicles—90 percent FTA/10 installed or retrofitted hybrid electric to improve the state of good repair of percent local contribution for the net propulsion systems and any equipment buses and bus facilities. incremental cost of the clean fuels related to such a system. For 1. Program Purpose component. For administrative administrative simplicity, FTA allows recipients to compute the Federal share The Clean Fuels/Bus and Bus simplicity, FTA allows recipients to compute the Federal share at 83 percent at 83 percent for eligible vehicle Facilities program has a two-fold purchases. purpose. First, the Clean Fuels Grant for eligible vehicle purchases. The 83 percent share is a blended figure (5) FTA will not approve deferred program was developed to assist local share. nonattainment and maintenance areas representing 80 percent of the vehicle in achieving or maintaining the National and 90 percent of the vehicle-related 5. Application Content equipment to be acquired in compliance Ambient Air Quality Standards for a. Proposal Submission Process ozone and CO. The second program with the Clean Air Act. purpose is to support emerging clean (2) Facilities—The 83 percent Federal (1) Project proposals must be fuel and advanced propulsion share does not apply to facilities, for submitted electronically through http:// technologies for transit buses and which the costs are more variable. The www.grants.gov and a synopsis of this markets for those technologies. eligibility of facility-related cost announcement will be available in the elements at the 90 percent share will be ‘‘FIND’’ module. Mail and fax 2. Eligible Applicants reviewed for eligibility of the higher submissions will not be accepted except Eligible applicants under the FY 2010 Federal share on a case-by-case basis as for supplemental information that Clean Fuels Grant program are: part of the grant application process. cannot be sent electronically. a. Designated recipients in (3) The FY 2010 Appropriations Act (2) Applicants can only apply for maintenance or non-attainment areas for allows a 90 percent Federal share for the funds currently available for allocation. ozone or CO, which are entities total cost of a biodiesel bus. However, an applicant may propose a
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project that would expend money over 6. Evaluation Criteria for Clean Fuels to carry out the project. This criterion multiple years. The project, however, Grant Program refers to implementation of the should be ready to implement and a. Project Evaluation Criteria particular project proposed. should be completed in a reasonable i. The applicant has the technical period of time. In sum, the period of Projects will be evaluated according capacity to administer the project. performance of the award is separate to the following criteria: ii. The acquisition is consistent with from the year that funds are awarded. (1) Demonstrated Need the bus fleet management plan. i. Project represents a one-time or iii. There are no outstanding legal, b. Proposal Content periodic need that cannot reasonably be technical, or financial issues with the funded from formula allocations or State (1) Applicant Information grantee that would make this a high-risk and/or local revenues. This addresses basic identifying project. information, including: ii. Project or applicant did not receive significant funding in an earmark. iv. Source of local match is identified i. Applicant’s name, and is available for prompt project ii. Contact information (including iii. The project will have a positive implementation if selected (no deferred contact name, address, e-mail address, impact on air quality. local share will be allowed). phone and fax number), iv. The project is consistent with the (7) Geographic Diversity. To provide iii. Whether the applicant’s area is applicant’s bus fleet management plan. the ability to evaluate technologies in a attainment, non-attainment, or v. The project is a transportation wide variety of conditions, FTA may maintenance for ozone or CO, control measure in an approved State select projects to ensure there is iv. Description of services provided Implementation Plan (if applicable). sufficient geographic diversity. by the agency, including areas served, (2) Planning and prioritization at v. If the project proposal includes local/regional level. III. Technical Assistance vehicles, include existing fleet i. Project is consistent with the transit FTA will post answers to commonly information, such as a current bus fleet priorities identified in the long range asked questions about the TIGGER management plan if not already on file plan and/or contingency/illustrative program as well as provide information with the FTA regional office, and projects. The project could not be to assist in calculations at http:// vi. A description of your technical, included in the financially constrained www.fta.dot.gov/tigger. Commonly legal, and financial capacity to Transportation Improvement Plan (TIP)/ asked questions about the FY 2010 implement the proposed project. STIP due to lack of funding (if selected, Clean Fuels Grant program can be found (2) Project Information project must be in federally approved at http://www.fta.dot.gov/funding/ Every proposal must: STIP before grant award). grants/grants_financing_3560.html. i. Describe the project to be funded ii. Local support is demonstrated by Technical assistance regarding these and include with the proposal any availability of local match for this and/ requirements is available from each FTA necessary supporting documentation. or related projects and letters of support. regional office listed in Appendix A. Example: Information on the age of the iii. In an area with more than one The regional offices will contact those current fleet, MPO concurrence letters, transit operator, the application applicants selected for funding ridership information. demonstrates coordination with and regarding grants and reporting ii. Address each of the evaluation support of other transit operators, or requirements and will provide criteria separately. other related projects within the assistance in preparing the iii. Congressional district(s) served by applicant’s MPO or the geographic documentation necessary for the grant the proposed project. region within which the proposed award. iv. Provide a line-item budget for the project will operate. project and its total cost. (3) The project is ready to implement. Contact the appropriate FTA Regional v. Provide the Federal amount i. Any required environmental work or Metropolitan Office for application- requested for each purpose for which has been initiated for construction specific information and issues. For funds are sought. projects requiring an Environmental general TIGGER program information, vi. Document matching funds, Assessment (EA). contact Walter Kulyk, Office of Mobility including amount and source of the ii. Implementation plans are ready, Innovation, (202) 366–4995, e-mail: match. including initial design of facilities [email protected]. For program vii. Provide project time-line, projects. information on the Clean Fuels/Bus and including significant milestones such as iii. TIP/STIP can be amended Bus Facilities Program; contact Juan date or contract for purchase of (evidenced by MPO/State endorsement). Morrison, Office of Program vehicle(s), actual or expected delivery iv. Project can be obligated and begin Management, (202) 366–7005, e-mail: date of vehicles and contract award and implementation quickly, if selected. juan.morrison.dot.gov. A TDD is completion of facility improvements. (4) The applicant demonstrates the available at 1–800–877–8339 (TDD/ benefits of the proposed project in FIRS). c. Funding Restrictions reducing transportation related Issued in Washington, DC, this 8th day of Only proposals from eligible pollutants. April 2010. recipients for eligible activities will be (5) The proposed project supports Peter Rogoff, considered for funding. Due to funding emerging clean fuels technologies or Administrator. limitations, applicants that are selected advanced technologies for transit buses. for funding may receive less than the (6) The applicants demonstrate the Appendix A amount requested. technical, legal, and financial capacity FTA Regional and Metropolitan Offices
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Richard H. Doyle, Regional Administrator, Region 1—Boston, Ken- Robert C. Patrick, Regional Administrator, Region 6—Ft. Worth, 819 dall Square, 55 Broadway, Suite 920, Cambridge, MA 02142–1093, Taylor Street, Room 8A36, Ft. Worth, TX 76102, Tel. 817–978– Tel. 617–494–2055. 0550. States served: Connecticut, Maine, Massachusetts, New Hampshire, States served: Arkansas, Louisiana, Oklahoma, New Mexico, and Rhode, Island, and Vermont. Texas. Brigid Hynes-Cherin, Regional Administrator, Region 2—New York, Mokhtee Ahmad, Regional Administrator, Region 7—Kansas City, One Bowling Green, Room 429, New York, NY 10004–1415, Tel. MO, 901 Locust Street, Room 404, Kansas City, MO 64106, Tel. 212–668–2170. 816–329–3920. States served: New Jersey, New York. States served: Iowa, Kansas, Missouri, and Nebraska. New York Metropolitan Office, Region 2—New York, One Bowling Green, Room 428, New York, NY 10004–1415, Tel. 212–668–2202. Letitia Thompson, Regional Administrator, Region 3—Philadelphia, Terry Rosapep, Regional Administrator, Region 8—Denver, 12300 1760 Market Street, Suite 500, Philadelphia, PA 19103–4124, Tel. West Dakota Ave., Suite 310, Lakewood, CO 80228–2583, Tel. 215–656–7100. 720–963–3300. States served: Delaware, Maryland, Pennsylvania, Virginia, West Vir- States served: Colorado, Montana, North Dakota, South Dakota, ginia, and District of Columbia. Utah, and Wyoming. Philadelphia Metropolitan Office, Region 3—Philadelphia, 1760 Market Street, Suite 500, Philadelphia, PA 19103–4124, Tel. 215– 656–7070. Washington, DC Metropolitan Office, 1990 K Street, NW., Room 510, Washington, DC 20006, Tel. 202–219–3562. Yvette Taylor, Regional Administrator, Region 4—Atlanta, 230 Leslie T. Rogers, Regional Administrator, Region 9—San Francisco, Peachtree Street, NW., Suite 800, Atlanta, GA 30303, Tel. 404– 201 Mission Street, Room 1650, San Francisco, CA 94105–1926, 865–5600. Tel. 415–744–3133. States served: Alabama, Florida, Georgia, Kentucky, Mississippi, States served: American Samoa, Arizona, California, Guam, Hawaii, North, Carolina, Puerto Rico, South Carolina, Tennessee, and Vir- Nevada, and the Northern Mariana Islands. gin Islands. Los Angeles Metropolitan Office, Region 9—Los Angeles, 888 S. Figueroa Street, Suite 1850, Los Angeles, CA 90017–1850, Tel. 213–202–3952. Marisol Simon, Regional Administrator, Region 5—Chicago, 200 Rick Krochalis, Regional Administrator, Region 10—Seattle, Jackson West Adams Street, Suite 320, Chicago, IL 60606, Tel. 312–353– Federal Building, 915 Second Avenue, Suite 3142, Seattle, WA 2789. 98174–1002, Tel. 206–220–7954. States served: Illinois, Indiana, Michigan, Minnesota, Ohio, and Wis- States served: Alaska, Idaho, Oregon, and Washington. consin. Chicago Metropolitan Office, Region 5—Chicago, 200 West Adams Street, Suite 320, Chicago, IL 60606, Tel. 312–353–2789.
Appendix B Dioxide (CO2); Methane (CH4); Nitrous Oxide Appendix C (N2O); and Fluorinated Gases TIGGER Program Glossary of Terms TIGGER Project Proposal Outline (Hydrofluorocarbons, perfluorocarbons, and Energy Use of the Public Transportation sulfur hexafluoride) Each project proposal must contain the System is the sum of the lower (net) heating Greenhouse Gas Emissions of the Public following information. Additional value of fuels purchased directly by the application instructions and tools will be public transportation system plus electricity Transportation Agency are greenhouse gas emissions from public transportation systems located on FTA’s TIGGER Program Web site: purchased directly by the public http://www.fta.dot.gov/tigger. transportation system. It includes energy vehicles or facilities, otherwise known as a. Project Summary Sheet—The applicant used to perform both revenue and non direct emissions. It does not include indirect revenue operations directly operated by the emissions (e.g., from third-party power may be requested to enter summary information about the project into a project agency, but not energy used by purchased plants) or displaced emissions (e.g., summary sheet that will be posted on FTA’s services. It includes fuels used by an agency emissions from manufacturing transit Web site at http://www.fta.dot.gov/tigger. to generate energy, but not energy generated equipment, waste disposal, emissions Instructions for completing and submitting by an agency. As an example, an applicant released by upstream processes prior to would count the lower heating value of the the sheet will be provided at the Web site. purchase of the fuel or electricity by the diesel fuel used to operate a diesel generator b. Applicant information: For each transit by an agency but not the electricity produced transit agency, etc.). agency included in the proposal, the by the generator. Energy produced on-site Project is the proposed capital investment information should include: using solar or wind power is also not counted as well as the existing system, subsystem, (1) Applicant name as part of consumption. facility, vehicle, or component that the (2) Contact information Expected Useful Life is the expected investment will replace or be applied to. The (3) Whether the applicant’s area is lifetime of project property, or the acceptable project scope determines where measurement attainment, non-attainment, or maintenance period of use in service, based on standard of energy reductions or emissions reductions for ozone or CO industry practices such as those defined in will take place and must be directly related (4) Description of services provided by the FTA Circular 9300.1B. If a useful life is to the actual capital investment. agency and areas served claimed that differs from standard industry Total Project Energy Savings is the (5) If proposal includes vehicles, include practices, or for which no standard practice existing fleet information, such as a current exists, the assumed useful life of a project estimated annual project energy savings should be justified using appropriate multiplied by the expected useful life of the rail or bus fleet management plan, if not citations or well-documented assumptions investment. already on file with the FTA Regional Office, and reasoning. Total Project Greenhouse Gas Emission and Greenhouse Gases are gases that trap heat Reductions is the estimated annual project (6) A description of their technical, legal, in the atmosphere expressed in Carbon greenhouse gas emission reductions financial, and program management capacity Dioxide (C02)-equivalent mass. The principal multiplied by the expected useful life of the to implement the proposed project. greenhouse gases that enter the atmosphere investment. c. Project Information: The information because of human activities are: Carbon should include:
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(1) Whether the project is to be evaluated d. Project Measurement Criteria for Energy greenhouse gas emission reductions once the under energy reduction, greenhouse gas Reduction projects: Proposals should identify investment is implemented. For projects reduction criteria, or both. the process the agency will use to determine proposed to reduce greenhouse gas emissions (2) A description of the scope of the the actual energy savings once the the proposal should include: project. investment is implemented. For projects (1) Project’s Current Annual Greenhouse (3) Provide a line item budget for the proposed to reduce energy consumption the project and its total cost and for scalable proposal should include: Gas Emissions projects include the minimum amount (1) Project’s Current Annual Energy Use (2) Project’s Estimated Annual Greenhouse necessary to implement the project if FTA (2) Project’s Estimated Annual Energy Use Gas Emissions were not to fund the total cost. (3) Project’s Estimated Annual Energy (3) Project’s Estimated Annual Greenhouse (4) Identify the expected useful life of the Savings Gas Savings investment. (4) Project’s Total Estimated Energy (4) Project’s Total Estimated Greenhouse (5) Provide brief project time-line outlining Savings Over its Useful Life Gas Savings over the Project’s Useful Life steps from project development through e. Project’s Total Energy Savings as a g. Any proposed deviations from FTA completion, including significant milestones Percentage of the Agency’s Total Energy Use. requirements such as date of contract awards and dates of This can be reported as less than one percent project implementation (e.g. when vehicles or the proposal must include: h. Address each of the evaluation criteria will begin revenue service). (1) Total Energy Consumption of the Public separately. (6) Provide the proposed location of the Transportation Agency (1) Project Innovation project, for facilities and other infrastructure (2) The Project’s Total Energy Savings as a (2) National Applicability provide the city or county where the percentage of the Total Energy Consumption (3) Project Readiness investment will be located as applicable; for of the Public Transportation Agency (4) Project Management vehicles provide the cities or counties where f. Project Measurement Criteria for (5) Return on Investment services are likely to be provided. Greenhouse Gas Emission Reduction BILLING CODE P (7) Congressional district(s) served by the projects: Proposals should identify the proposed project. process the agency will use to determine the
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[FR Doc. 2010–8398 Filed 4–9–10; 11:15 am] Graco describes the MyRideTM 65 car controls to prevent such problems from BILLING CODE C seat as being manufactured with a happening in the future and that Graco detachable accessory pillow, and this has received no complaints, reports or pillow includes a warning label (the any other information about adverse DEPARTMENT OF TRANSPORTATION ‘‘pillow label’’) regarding appropriate impacts from this noncompliance from use of the pillow for children of a consumers or any other outside source. National Highway Traffic Safety certain age range. The pillow label Since the discovery of the Administration warns consumers not to use the pillow noncompliance, Graco indicated that it [Docket No. NHTSA–2010–0042; Notice 1] when the MyRideTM 65 seat is being has taken steps to ensure that every used by children weighing more than 40 MyRideTM 65 seat subsequently Graco Children’s Products Inc., lbs (18.1 kg). The pillow, which is released for shipment has been Receipt of Petition for Decision of removable, is attached to the MyRideTM manufactured with labels compliant Inconsequential Noncompliance 65 seat by a hook and loop fastener with all applicable safety standards, material, one side of which is sewn onto Graco Children’s Products Inc. including FMVSS No. 213. In addition, a ‘‘tail’’ of the pillow and the other onto (Graco), has determined that certain Graco stopped all shipments of the the top of the seat above the child’s TM warning labels attached to detachable MyRide 65 car seats in its possession head. when the noncompliance was accessory pillows that it sold with Paragraph S5.7 of FMVSS No. 213 TM discovered and replaced the detachable certain MyRide 65 line car seats requires in pertinent part: produced between April, 2009, and accessory pillows with pillows October, 2009, failed to meet the S5.7 Flammability. Each material used in manufactured with a pillow label flammability requirements of Federal a child restraint system shall conform to the compliant with the FMVSS No. 213 requirements of S4 of FMVSS No. 302 prior to delivery. Motor Vehicle Safety Standards (571.302). In the case of a built-in child 1 (FMVSS) No. 213. Graco estimates that restraint system, the requirements of S4 of Graco believes that the about 90,000 car seats may be affected. FMVSS No. 302 shall be met in both the ‘‘in- noncompliance of the pillow label to Graco has filed an appropriate report use’’ and ‘‘stowed’’ positions. meet the requirements of FMVSS No. pursuant to 49 CFR part 573 Defect and Based on its internal investigation, 213 is inconsequential to overall motor Noncompliance Responsibility and Graco believes that the noncompliance vehicle safety for the following reasons: Reports. is that a pillow label sewn onto the When reviewing the accessory pillow at Pursuant to 49 U.S.C. 30118(d) and detachable head pillow of certain issue, including its size, location, function 30120(h) (see implementing rule at 49 MyRideTM 65 car seats does not comply and overall design, the risk of injury resulting CFR part 556), Graco has petitioned for with paragraph S5.7 of FMVSS No. 213. from the noncompliant Label on the an exemption from the notification and After discovering that a recent lot of detachable accessory pillow is remedy requirements of 49 U.S.C. pillow labels delivered in late October inconsequential to the overall safety of the MyRide seat. Specifically, the Label is a Chapter 301 on the basis that this 2009 to the Company’s Mexico facility noncompliance is inconsequential to physically small component of the child had not been properly treated for flame restraint system located in an area not likely motor vehicle safety. resistance, Graco’s plant management This notice of receipt of Graco’s to be exposed to open flame. In fact, the began an investigation. They petition is published under 49 U.S.C. potential for the Label serving as an ignition immediately started reviewing all point for a larger conflagration is near zero. 30118 and 30120 and does not represent pillow label lots previously delivered to This circumstance, along with the compliant any agency decision or other exercise of its Mexico facility since April 2009, the status of all other fabric and label judgment concerning the merits of the production start date for the MyRideTM components of the MyRide seat, render the petition. line car seats, to determine the extent of Label’s noncompliance inconsequential to Affected are all models of MyRideTM the noncompliance among its lots of motor vehicle safety. 65 convertible car seats manufactured As noted above, the Label is a rectangular pillow labels. shaped tag measuring approximately 3 inches between April, 2009, and October, 2009, Graco found that its noncompliant in the Company’s Mexico facility. The by 11⁄4 inches. The area of the Label is pillow labels were manufactured by a insignificant with respect to the over two Company estimates that approximately sub-supplier to Graco’s normal pillow 90,000 car seats may be affected, and of yards of fabric that is used to make the pad label supplier. Graco has determined and the ‘‘soft goods’’ for the MyRide seat. this total, 50,000 are potentially in use that the sub-supplier did not follow Proportionally, the percentage of material is by its customers (consumers) and 40,000 1 Graco’s production specifications, and less than ⁄100% of the total surface area of 2 are currently with retailers. as a result, failed to meet the the seat. Moreover, all other fabric, including requirements of FMVSS No. 213. Graco other warning labels for the MyRide seat, are 1 Graco describes the noncompliance as one with also concluded that the sub-supplier flame resistant. The small size of affected FMVSS No. 302. However, FMVSS No. 302 does material renders the likelihood of ignition of not in itself apply to motor vehicle equipment. was solely responsible for providing the this one Label highly untenable. Paragraph S4 of FMVSS No. 302 is invoked by noncompliant pillow labels. In addition * * * the Label is also located reference in FMVSS No. 213, therefore, this Graco also found that all other labels in an area that makes it highly unlikely to be noncompliance is a noncompliance with FMVSS and materials for its MyRideTM 65 car No. 213 not FMVSS No. 302. exposed to an open flame without the 2 Graco’s petition, which was filed under 49 CFR seats were provided by Graco’s regular passenger compartment of the car being part 556, requests an agency decision to exempt supplier itself and not the sub-supplier. already engulfed in flame * * * When put in Graco as manufacturer from the notification and In addition to its investigation, the its proper place * * * the Label is recall responsibilities of 49 CFR part 573 for all Company’s plant management also surrounded by flame resistant material and in 90,000 of the affected child seats. However, the examined and verified through a location interior to the overall seat design agency cannot relieve Graco’s distributors of the ***’’ prohibitions on the sale, offer for sale, or laboratory testing, that all other material TM Moreover * * * the owner’s manual and introduction or delivery for introduction into components used in the MyRide 65 instructions for the MyRide seat express state interstate commerce of the noncompliant child car seats comply with the standards of seats under their control after Graco recognized that that the pillow is not to be used with any the subject noncompliance existed. Those child FMVSS No. 213. Graco added that new child over 18.1 kg (40 lbs) placed into the seats must be brought into conformance, exported, plant management at its Mexico plant MyRide seat. Accordingly, a significant or destroyed. has implemented more robust quality number of MyRide seats are not used with
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the pillow, thereby further reducing an a. By mail addressed to: U.S. DEPARTMENT OF THE TREASURY already low risk of flammability. Department of Transportation, Docket * * * the MyRide * * * child restraint is Operations, M–30, West Building Internal Revenue Service not designed to be easily removed from a Ground Floor, Room W12–140, 1200 motor vehicle once installed * * * the New Jersey Avenue, SE., Washington, Proposed Collection; Comment MyRide seat is tethered into the seat or is DC 20590. Request for Form 8734 installed for use with the motor vehicle’s type II lap and shoulder belt. Therefore, the b. By hand delivery to U.S. AGENCY: Internal Revenue Service (IRS), only risk of exposure to an ignition source Department of Transportation, Docket Treasury. would be while installed in a motor vehicle Operations, M–30, West Building ACTION: Notice and request for where pinpoint open flame in the upper Ground Floor, Room W12–140, 1200 comments. portion of the child restraint system on one New Jersey Avenue, SE., Washington, particular side is highly unlikely. DC 20590. The Docket Section is open SUMMARY: The Department of the Graco has considered the potential for on weekdays from 10 a.m. to 5 p.m. Treasury, as part of its continuing effort variety of potential ignition sources that may except Federal Holidays. to reduce paperwork and respondent be exposed to the tag. The Company believes burden, invites the general public and that the likelihood of the Label coming c. Electronically: by logging onto the accidentally in contact with any type of Federal Docket Management System other Federal agencies to take this ignition device is extremely low. Graco’s (FDMS) Web site at http:// opportunity to comment on proposed analysis also included potential ignition from www.regulations.gov/. Follow the online and/or continuing information cigarettes or other smoking materials * * * instructions for submitting comments. collections, as required by the Graco also mentioned that real world Comments may also be faxed to 1–202– Paperwork Reduction Act of 1995, reports support the Company’s belief 493–2251. Public Law 104–13 (44 U.S.C. that the noncompliant pillow labels are Comments must be written in the 3506(c)(2)(A)). Currently, the IRS is not a risk to safety. Graco said it has English language, and be no greater than soliciting comments concerning Form received no reports or complaints of a 15 pages in length, although there is no 8734, Support Schedule for Advance fire involving the MyRideTM 65 seat or limit to the length of necessary Ruling Period. any of its components. Graco added, attachments to the comments. If DATES: Written comments should be ‘‘The insignificant opportunity of a fire comments are submitted in hard copy received on or before June 14, 2010 to hazard to a child from ignition of this form, please ensure that two copies are be assured of consideration. small tag, located in the interior portion provided. If you wish to receive ADDRESSES: Direct all written comments of the child seat contained inside a confirmation that your comments were to R. Joseph Durbala, Internal Revenue motor vehicle supports Graco’s assertion received, please enclose a stamped, self- Service, Room 6129, 1111 Constitution regarding the inconsequential nature of addressed postcard with the comments. Avenue NW., Washington, DC 20224. this noncompliance.’’ Note that all comments received will be FOR FURTHER INFORMATION CONTACT: In summation Graco restated its belief posted without change to http:// Requests for additional information or that based on the size of the pillow www.regulations.gov, including any copies of the form and instructions label, its location, compliance of all personal information provided. should be directed to Elaine Christophe, other labels and fabric with FMVSS No. Documents submitted to a docket may (202) 622–3179, or at Internal Revenue 213, and the nearly impossible be viewed by anyone at the address and Service, Room 6129, 1111 Constitution opportunities for direct ignition of the times given above. The documents may Avenue NW., Washington, DC 20224, or pillow label only, that the described also be viewed on the Internet at through the Internet, at noncompliance of the pillow label to http://www.regulations.gov by following [email protected]. meet the requirements of FMVSS No. the online instructions for accessing the SUPPLEMENTARY INFORMATION: dockets. DOT’s complete Privacy Act 213 is inconsequential to motor vehicle Title: Support Schedule for Advance Statement is available for review in the safety. Thus, Graco requests that Ruling Period. NHTSA grant its petition to exempt it Federal Register published on April 11, OMB Number: 1545–1836. from providing notification of 2000 (65 FR 19477–78). Form Number: 8734. noncompliance as required by 49 U.S.C. The petition, supporting materials, Abstract: Form 8734 is used by 30118 and remedying the and all comments received before the charities to furnish financial noncompliance as required by 49 U.S.C. close of business on the closing date information that Exempt Organization 30120. indicated below will be filed and will be Determinations of IRS can use to NHTSA notes that the statutory considered. All comments and classify a charity as a public charity. provisions (49 U.S.C. 30118(d) and supporting materials received after the Current Actions: There are no changes 30120(h)) that permit manufacturers to closing date will also be filed and will being made to the form at this time. file petitions for a determination of be considered to the extent possible. Type of Review: Extension of a inconsequentiality allow NHTSA to When the petition is granted or denied, currently approved collection. exempt manufacturers only from the notice of the decision will be published Affected Public: Not-for-profit duties found in sections 30118 and in the Federal Register pursuant to the institutions. 30120, respectively, to notify owners, authority indicated below. Estimated Number of Respondents: purchasers, and dealers of a defect or Comment closing date: May 10, 2010. 16,000. noncompliance and to remedy the Authority: 49 U.S.C. 30118, 30120: Estimated Time per Respondent: 34 defect or noncompliance. delegations of authority at CFR 1.50 and hours, 19 minutes. Interested persons are invited to 501.8. Estimated Total Annual Burden submit written data, views, and Hours: 549,120. arguments on this petition. Comments Issued on: April 7, 2010. The following paragraph applies to all must refer to the docket and notice Claude H. Harris, of the collections of information covered number cited at the beginning of this Director, Office of Vehicle Safety Compliance. by this notice: notice and be submitted by any of the [FR Doc. 2010–8310 Filed 4–12–10; 8:45 am] An agency may not conduct or following methods: BILLING CODE 4910–59–P sponsor, and a person is not required to
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respond to, a collection of information DATES: Written comments should be comments will become a matter of unless the collection of information received on or before June 14, 2010 to public record. Comments are invited on: displays a valid OMB control number. be assured of consideration. (a) Whether the collection of Books or records relating to a collection ADDRESSES: Direct all written comments information is necessary for the proper of information must be retained as long to R. Joseph Durbala, Internal Revenue performance of the functions of the as their contents may become material Service, Room 6129, 1111 Constitution agency, including whether the in the administration of any internal Avenue NW., Washington DC 20224, or information shall have practical utility; revenue law. Generally, tax returns and through the Internet, at (b) the accuracy of the agency’s estimate tax return information are confidential, [email protected]. of the burden of the collection of as required by 26 U.S.C. 6103. information; (c) ways to enhance the FOR FURTHER INFORMATION CONTACT: quality, utility, and clarity of the Request for Comments: Comments Requests for additional information or information to be collected; (d) ways to submitted in response to this notice will copies of the form and instructions minimize the burden of the collection of be summarized and/or included in the should be directed to Elaine Christophe, information on respondents, including request for OMB approval. All (202) 622–3179, or at Internal Revenue through the use of automated collection comments will become a matter of Service, Room 6129, 1111 Constitution techniques or other forms of information public record. Comments are invited on: Avenue, NW., Washington, DC 20224, technology; and (e) estimates of capital (a) Whether the collection of or through the Internet, at or start-up costs and costs of operation, information is necessary for the proper [email protected]. performance of the functions of the maintenance, and purchase of services SUPPLEMENTARY INFORMATION: agency, including whether the to provide information. Title: IRS e-file Signature information shall have practical utility; Approved: April 5, 2010. Authorization for Form 1065–B. (b) the accuracy of the agency’s estimate OMB Number: 1545–2043. R. Joseph Durbala, of the burden of the collection of Form Number: 8879–B. IRS Tax Supervisory Analyst. information; (c) ways to enhance the Abstract: A general partner or a [FR Doc. 2010–8334 Filed 4–12–10; 8:45 am] quality, utility, and clarity of the limited liability company member BILLING CODE 4830–01–P information to be collected; (d) ways to manager (LLC member manager) and an minimize the burden of the collection of electronic return originator (ERO) use information on respondents, including Form 8879–B when the general partner DEPARTMENT OF THE TREASURY through the use of automated collection or LLC member manager wants to use a techniques or other forms of information personal identification number (PIN) to Internal Revenue Service technology; and (e) estimates of capital electronically sign an electing large or start-up costs and costs of operation, Open Meeting of the Area 5 Taxpayer partnership’s electronic income tax Advocacy Panel (Including the States maintenance, and purchase of services return, and, if applicable, consent to an to provide information. of Iowa, Kansas, Minnesota, Missouri, electronic funds withdrawal. Nebraska, Oklahoma, and Texas) Approved: April 5, 2010. Current Actions: There is no change R. Joe Durbala, in the paperwork burden previously AGENCY: Internal Revenue Service (IRS) IRS Tax Supervisory Analyst. approved by OMB. This form is being Treasury. submitted for renewal purposes only. [FR Doc. 2010–8333 Filed 4–12–10; 8:45 am] ACTION: Notice of meeting. Type of Review: Extension of a BILLING CODE 4830–01–P currently approved collection. SUMMARY: An open meeting of the Area Affected Public: Businesses and other 5 Taxpayer Advocacy Panel will be for-profit organizations. DEPARTMENT OF THE TREASURY conducted. The Taxpayer Advocacy Estimated Number of Respondents: Panel is soliciting public comments, Internal Revenue Service 60. ideas, and suggestions on improving Estimated Time per Respondent: 4 customer service at the Internal Revenue Proposed Collection; Comment hours 17 minutes. Service. Estimated Total Annual Burden Request for Form 8879–B DATES: The meeting will be held Hours: 258. Tuesday, May 11, 2010. AGENCY: The following paragraph applies to all Internal Revenue Service (IRS), FOR FURTHER INFORMATION CONTACT: Treasury. of the collections of information covered by this notice: Patricia Robb at 1–888–912–1227 or ACTION: Notice and request for An agency may not conduct or 414–231–2360. comments. sponsor, and a person is not required to SUPPLEMENTARY INFORMATION: Notice is respond to, a collection of information hereby given pursuant to Section SUMMARY: The Department of the unless the collection of information 10(a)(2) of the Federal Advisory Treasury, as part of its continuing effort displays a valid OMB control number. Committee Act, 5 U.S.C. App. (1988) to reduce paperwork and respondent Books or records relating to a that a meeting of the Area 5 Taxpayer burden, invites the general public and collection of information must be Advocacy Panel will be held Tuesday, other Federal agencies to take this retained as long as their contents may May 11, 2010, at 11 a.m. Central Time opportunity to comment on proposed become material in the administration via telephone conference. The public is and/or continuing information of any internal revenue law. Generally, invited to make oral comments or collections, as required by the tax returns and tax return information submit written statements for Paperwork Reduction Act of 1995, are confidential, as required by 26 consideration. Due to limited Public Law 104–13 (44 U.S.C. U.S.C. 6103. conference lines, notification of intent 3506(c)(2)(A)). Currently, the IRS is Request for Comments: Comments to participate must be made with soliciting comments concerning Form submitted in response to this notice will Patricia Robb. For more information 8879–B, IRS e-file Signature be summarized and/or included in the please contact Ms. Robb at 1–888–912– Authorization for Form 1065–B. request for OMB approval. All 1227 or 414–231–2360, or write TAP
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Office Stop 1006MIL, 211 West DEPARTMENT OF THE TREASURY Income Tax Credit Project Committee Wisconsin Avenue, Milwaukee, WI will be conducted. The Taxpayer 53203–2221, or post comments to the Internal Revenue Service Advocacy Panel is soliciting public Web site: http://www.improveirs.org. comments, ideas and suggestions on Open Meeting of the Taxpayer The agenda will include various IRS improving customer service at the Advocacy Panel Volunteer Income Tax issues. Internal Revenue Service. Assistance Issue Committee. Dated: April 6, 2010. DATES: The meeting will be Wednesday, May 26, 2010. Shawn F. Collins, AGENCY: Internal Revenue Service (IRS) FOR FURTHER INFORMATION CONTACT: Director, Taxpayer Advocacy Panel. Treasury. Marianne Ayala at 1–888–912–1227 or [FR Doc. 2010–8329 Filed 4–12–10; 8:45 am] ACTION: Corrected notice of meeting. 954–423–7978. BILLING CODE 4830–01–P SUMMARY: An open meeting of the SUPPLEMENTARY INFORMATION: Notice is Taxpayer Advocacy Panel Volunteer hereby given pursuant to Section Income Tax Assistance Issue Committee DEPARTMENT OF THE TREASURY 10(a)(2) of the Federal Advisory will be conducted. The Taxpayer Committee Act, 5 U.S.C. App. (1988) Internal Revenue Service Advocacy Panel is soliciting public that an open meeting of the Taxpayer comments, ideas and suggestions on Advocacy Panel Earned Income Tax Open Meeting of the Area 1 Taxpayer improving customer service at the Credit Project Committee will be held Advocacy Panel (Including the States Internal Revenue Service. Wednesday, May 26, 2010, at 1 p.m. of New York, Connecticut, DATES: The meeting will be Thursday, Eastern Time via telephone conference. Massachusetts, Rhode Island, New May 6, 2010 and Friday, May 7, 2010. The public is invited to make oral Hampshire, Vermont and Maine) FOR FURTHER INFORMATION CONTACT: comments or submit written statements Donna Powers at 1–888–912–1227 or for consideration. Due to limited AGENCY: Internal Revenue Service (IRS), 954–423–7977. conference lines, notification of intent Treasury. SUPPLEMENTARY INFORMATION: Notice is to participate must be made with ACTION: Notice of meeting. hereby given pursuant to Section Marianne Ayala. For more information 10(a)(2) of the Federal Advisory please contact Ms. Ayala at 1–888–912– SUMMARY: An open meeting of the Area Committee Act, 5 U.S.C. App. (1988) 1227 or 954–423–7978, or write TAP 1 Taxpayer Advocacy Panel will be that an open meeting of the Taxpayer Office, 1000 South Pine Island Road, conducted. The Taxpayer Advocacy Advocacy Panel Volunteer Income Tax Suite 340, Plantation, FL 33324, or Panel is soliciting public comments, Assistance Issue Committee will be held contact us at the Web site: http:// ideas and suggestions on improving Thursday, May 7, 2010 from 8 a.m. to www.improveirs.org. customer service at the Internal Revenue 5 p.m. and Friday, May 7, 2010 from 8 The agenda will include various IRS Service. a.m. to 1 p.m. Eastern Time in Atlanta, issues. DATES: The meeting will be held GA. The public is invited to make oral Dated: April 6, 2010. Tuesday, May 18, 2010. comments or submit written statements Shawn F. Collins, FOR FURTHER INFORMATION CONTACT: for consideration. Due to limited Director, Taxpayer Advocacy Panel. Audrey Y. Jenkins at 1–888–912–1227 conference lines, notification of intent [FR Doc. 2010–8332 Filed 4–12–10; 8:45 am] to participate must be made with Donna or 718–488–2085. BILLING CODE 4830–01–P Powers. For more information, please SUPPLEMENTARY INFORMATION: Notice is contact Ms. Powers at-1–888–912–1227 hereby given pursuant to section or 954–423–7977, write TAP Office, DEPARTMENT OF THE TREASURY 10(a)(2) of the Federal Advisory 1000 South Pine Island Road, Suite 340, Committee Act, 5 U.S.C. App. (1988) Plantation, FL 33324, or contact us at Internal Revenue Service that an open meeting of the Area 1 the Web site: http://www.improveirs.org. Taxpayer Advocacy Panel will be held The agenda will include various IRS Open Meeting of the Taxpayer Tuesday, May 18, 2010, at 10 a.m. issues. Advocacy Panel Tax Forms and Eastern Time via telephone conference. Publications/MLI Project Committee The public is invited to make oral Dated: April 6, 2010. comments or submit written statements Shawn F. Collins, AGENCY: Internal Revenue Service (IRS), for consideration. Due to limited Director, Taxpayer Advocacy Panel. Treasury. conference lines, notification of intent [FR Doc. 2010–8331 Filed 4–12–10; 8:45 am] ACTION: Notice of meeting. to participate must be made with BILLING CODE 4830–01–P SUMMARY: An open meeting of the Audrey Y. Jenkins. For more Taxpayer Advocacy Panel Tax Forms information please contact Ms. Jenkins DEPARTMENT OF THE TREASURY and Publications/MLI Project at 1–888–912–1227 or 718–488–2085, or Committee will be conducted. The write TAP Office, 10 MetroTech Center, Internal Revenue Service Taxpayer Advocacy Panel is soliciting 625 Fulton Street, Brooklyn, NY 11201, public comments, ideas and suggestions or contact us at the Web site: http:// Open Meeting of the Taxpayer on improving customer service at the www.improveirs.org. Advocacy Panel Earned Income Tax Internal Revenue Service. The agenda will include various IRS Credit Project Committee. DATES: The meeting will be held issues. AGENCY: Internal Revenue Service (IRS), Thursday, May 13, 2010. Dated: April 6, 2010. Treasury. FOR FURTHER INFORMATION CONTACT: Shawn F. Collins, Marisa Knispel at 1–888–912–1227 or ACTION: Notice of meeting. Director, Taxpayer Advocacy Panel. 718–488–3557. [FR Doc. 2010–8330 Filed 4–12–10; 8:45 am] SUMMARY: An open meeting of the SUPPLEMENTARY INFORMATION: Notice is BILLING CODE 4830–01–P Taxpayer Advocacy Panel Earned hereby given pursuant to section
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10(a)(2) of the Federal Advisory submit written statements for Dated: April 6, 2010. Committee Act, 5 U.S.C. App. (1988) consideration. Notification of intent to Shawn F. Collins, that an open meeting of the Taxpayer participate must be made with Janice Director, Taxpayer Advocacy Panel. Advocacy Panel Tax Forms and Spinks. For more information, please [FR Doc. 2010–8337 Filed 4–12–10; 8:45 am] Publications/MLI Project Committee contact Ms. Spinks at 1–888–912–1227 BILLING CODE 4830–01–P will be held Thursday, May 13, 2010, at or 206–220–6096, or write TAP Office, 1 p.m., Eastern Time via telephone 915 2nd Avenue, MS W–406, Seattle, conference. The public is invited to WA 98174 or post comments to the Web DEPARTMENT OF THE TREASURY make oral comments or submit written site: http://www.improveirs.org. statements for consideration. Due to The agenda will include various IRS Internal Revenue Service limited conference lines, notification of issues. intent to participate must be made with Open Meeting of the Area 4 Taxpayer Marisa Knispel. For more information, Dated: April 6, 2010. Advocacy Panel (Including the States please contact Ms. Knispel at 1–888– Shawn F. Collins, of Illinois, Indiana, Kentucky, Michigan, 912–1227 or 718–488–3557, or write Director, Taxpayer Advocacy Panel. Ohio, Tennessee, and Wisconsin) TAP Office, 10 MetroTech Center, 625 [FR Doc. 2010–8326 Filed 4–12–10; 8:45 am] Fulton Street, Brooklyn, NY 11201, or BILLING CODE 4830–01–P AGENCY: Internal Revenue Service (IRS), post comments to the Web site: http:// Treasury. www.improveirs.org. ACTION: Notice of meeting. The agenda will include various IRS DEPARTMENT OF THE TREASURY issues. Dated: April 6, 2010. Internal Revenue Service SUMMARY: An open meeting of the Area Shawn F. Collins, 4 Taxpayer Advocacy Panel will be conducted. The Taxpayer Advocacy Director, Taxpayer Advocacy Panel. Open Meeting of the Area 7 Taxpayer Advocacy Panel (Including the States Panel is soliciting public comments, [FR Doc. 2010–8336 Filed 4–12–10; 8:45 am] of Alaska, California, Hawaii, and ideas, and suggestions on improving BILLING CODE 4830–01–P Nevada) customer service at the Internal Revenue Service. AGENCY: Internal Revenue Service (IRS), DEPARTMENT OF THE TREASURY DATES: The meeting will be held Treasury. Tuesday, May 18, 2010. Internal Revenue Service ACTION: Notice of meeting. FOR FURTHER INFORMATION CONTACT: Open Meeting of the Area 6 Taxpayer Ellen Smiley at 1–888–912–1227 or SUMMARY: An open meeting of the Area Advocacy Panel (Including the States 414–231–2360. of Arizona, Colorado, Idaho, Montana, 7 Taxpayer Advocacy Panel will be New Mexico, North Dakota, Oregon, conducted. The Taxpayer Advocacy SUPPLEMENTARY INFORMATION: Notice is South Dakota, Utah, Washington, and Panel is soliciting public comments, hereby given pursuant to Section Wyoming) ideas, and suggestions on improving 10(a)(2) of the Federal Advisory customer service at the Internal Revenue Committee Act, 5 U.S.C. App. (1988) AGENCY: Internal Revenue Service (IRS) Service. that a meeting of the Area 4 Taxpayer Treasury. Advocacy Panel will be held Tuesday, DATES: The meeting will be held ACTION: Notice of meeting. Wednesday, May 19, 2010. May 18, 2010, at 1 p.m. Central Time via telephone conference. The public is SUMMARY: An open meeting of the Area FOR FURTHER INFORMATION CONTACT: 6 Taxpayer Advocacy Panel will be invited to make oral comments or Janice Spinks at 1–888–912–1227 or submit written statements for conducted. The Taxpayer Advocacy 206–220–6098. Panel is soliciting public comments, consideration. Due to limited ideas, and suggestions on improving SUPPLEMENTARY INFORMATION: Notice is conference lines, notification of intent customer service at the Internal Revenue hereby given pursuant to Section to participate must be made with Ellen Service. 10(a)(2) of the Federal Advisory Smiley. For more information please DATES: The meeting will be held Committee Act, 5 U.S.C. App. (1988) contact Ms. Smiley at 1–888–912–1227 Thursday, May 6, 2010, Friday, May 7, that a meeting of the Area 7 Taxpayer or 414–231–2360, or write TAP Office 2010 and Saturday, May 8, 2010. Advocacy Panel will be held Stop 1006MIL, 211 West Wisconsin Avenue, Milwaukee, WI 53203–2221, or FOR FURTHER INFORMATION CONTACT: Wednesday, May 19, 2010, at 2 p.m. Janice Spinks at 1–888–912–1227 or Pacific Time via telephone conference. post comments to the Web site: http:// 206–220–6096. The public is invited to make oral www.improveirs.org. comments or submit written statements SUPPLEMENTARY INFORMATION: Notice is The agenda will include various IRS hereby given pursuant to Section for consideration. Due to limited issues. 10(a)(2) of the Federal Advisory conference lines, notification of intent to participate must be made with Janice Dated: April 6, 2010. Committee Act, 5 U.S.C. App. (1988) Shawn F. Collins, that an open meeting of the Area 6 Spinks. For more information please Director, Taxpayer Advocacy Panel. Taxpayer Advocacy Panel will be held contact Ms. Spinks at 1–888–912–1227 Thursday, May 6, 2010 from 1 p.m. to or 206–220–6098, or write TAP Office, [FR Doc. 2010–8338 Filed 4–12–10; 8:45 am] 4:30 p.m., Friday, May 7, 2010 from 8 915 2nd Avenue, MS W–406, Seattle, BILLING CODE 4830–01–P a.m. to 4:30 p.m., and Saturday, May 8, WA 98174 or post comments to the web 2010 from 8 a.m. to 11:30 a.m. Pacific site: http://www.improveirs.org. Time in Portland, OR. The public is The agenda will include various IRS invited to make oral comments or issues.
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DEPARTMENT OF THE TREASURY ACTION: Notice of meeting. SUPPLEMENTARY INFORMATION: Notice is hereby given pursuant to section Internal Revenue Service SUMMARY: An open meeting of the Area 10(a)(2) of the Federal Advisory 2 Taxpayer Advocacy Panel will be Committee Act, 5 U.S.C. App. (1988) Open Meeting of the Area 3 Taxpayer conducted. The Taxpayer Advocacy that an open meeting of the Taxpayer Advocacy Panel (Including the States Panel is soliciting public comments, Advocacy Panel Notice Improvement of Florida, Georgia, Alabama, ideas, and suggestions on improving Issue Committee will be held Tuesday, Mississippi, Louisiana, Arkansas, and customer service at the Internal Revenue May 25, 2010, from 8 a.m. to 5 p.m. and the Territory of Puerto Rico) Service. Wednesday, May 26, 2010 from 8 a.m to DATES: The meeting will be held AGENCY: 11 p.m. Eastern Time in Detroit, MI. The Internal Revenue Service (IRS), Wednesday, May 19, 2010. Treasury. public is invited to make oral comments FOR FURTHER INFORMATION CONTACT: ACTION: Notice of meeting. or submit written statements for Marianne Ayala at 1–888–912–1227 or consideration. Notification of intent to SUMMARY: An open meeting of the Area 954–423–7978. participate must be made with Audrey 3 Taxpayer Advocacy Panel will be SUPPLEMENTARY INFORMATION: Notice is Y. Jenkins. For more information, please conducted. The Taxpayer Advocacy hereby given pursuant to section contact Ms. Jenkins at 1–888–912–1227 Panel is soliciting public comments, 10(a)(2) of the Federal Advisory or 718–488–2085, or write TAP Office, ideas, and suggestions on improving Committee Act, 5 U.S.C. App. (1988) 10 MetroTech Center, 625 Fulton Street, customer service at the Internal Revenue that an open meeting of the Area 2 Brooklyn, NY 11201, or post comments Service. Taxpayer Advocacy Panel will be held to the Web site: http:// DATES: The meeting will be held Wednesday, May 19, 2010, at 2:30 p.m. www.improveirs.org. Thursday, May 20, 2010 and Friday, Eastern Time via telephone conference. The agenda will include various IRS May 21, 2009. The public is invited to make oral issues. comments or submit written statements FOR FURTHER INFORMATION CONTACT: Dated: April 6, 2010. for consideration. Due to limited Donna Powers at 1–888–912–1227 or conference lines, notification of intent Shawn F. Collins, 954- 423–7977. to participate must be made with Director, Taxpayer Advocacy Panel. SUPPLEMENTARY INFORMATION: Notice is Marianne Ayala. For more information [FR Doc. 2010–8341 Filed 4–12–10; 8:45 am] hereby given pursuant to section please contact Mrs. Ayala at 1–888– BILLING CODE 4830–01–P 10(a)(2) of the Federal Advisory 912–1227 or 954–423–7978, or write Committee Act, 5 U.S.C. App. (1988) TAP Office, 1000 South Pine Island that an open meeting of the Area 3 Road, Suite 340, Plantation, FL 33324, DEPARTMENT OF THE TREASURY Taxpayer Advocacy Panel will be held or post comments to the Web site: Internal Revenue Service Thursday, May 20, 2009, 8 a.m. to 5 http://www.improveirs.org. p.m. and Friday, May 21, 2009, 8 a.m. The agenda will include various IRS Open Meeting of the Taxpayer to 12 p.m. Central Time in New Orleans, issues. Advocacy Panel Small Business/Self LA. The public is invited to make oral Dated: April 6, 2010. Employed Project Committee comments or submit written statements Shawn F. Collins, for consideration. Notification of intent AGENCY: Internal Revenue Service (IRS), Director, Taxpayer Advocacy Panel. to participate must be made with Donna Treasury. [FR Doc. 2010–8340 Filed 4–12–10; 8:45 am] Powers. For more information please ACTION: Notice of meeting. contact Ms. Powers at 1–888–912–1227 BILLING CODE 4830–01–P or 954–423–7977, or write TAP Office, SUMMARY: An open meeting of the 1000 South Pine Island Road, Suite 340, Taxpayer Advocacy Panel Small DEPARTMENT OF THE TREASURY Plantation, FL 33324, or post comments Business/Self Employed Project to the Web site: http:// Internal Revenue Service Committee will be conducted. The www.improveirs.org. Taxpayer Advocacy Panel is soliciting The agenda will include various IRS Open Meeting of Taxpayer Advocacy public comments, ideas, and issues. Panel Notice Improvement Issue suggestions on improving customer Dated: April 6, 2010. Committee service at the Internal Revenue Service. DATES: Shawn F. Collins, AGENCY: Internal Revenue Service (IRS), The meeting will be held Director, Taxpayer Advocacy Panel. Treasury. Thursday, May 27, 2010. [FR Doc. 2010–8339 Filed 4–12–10; 8:45 am] ACTION: Notice of meeting. FOR FURTHER INFORMATION CONTACT: BILLING CODE 4830–01–P Janice Spinks at 1–888–912–1227 or SUMMARY: An open meeting of the 206–220–6098. Taxpayer Advocacy Panel Notice SUPPLEMENTARY INFORMATION: Notice is DEPARTMENT OF THE TREASURY Improvement Issue Committee will be hereby given pursuant to section conducted. The Taxpayer Advocacy 10(a)(2) of the Federal Advisory Internal Revenue Service Panel is soliciting public comments, Committee Act, 5 U.S.C. App. (1988) ideas and suggestions on improving Open Meeting of the Area 2 Taxpayer that an open meeting of the Taxpayer customer service at the Internal Revenue Advocacy Panel Small Business/Self Advocacy Panel (Including the States Service. of Delaware, North Carolina, South Employed Project Committee will be DATES: The meeting will be held Carolina, New Jersey, Maryland, held Thursday, May 27, 2010, at 9 a.m. Tuesday, May 25, 2010 and Wednesday, Pennsylvania, Virginia, West Virginia Pacific Time via telephone conference. May 26, 2010. and the District of Columbia) The public is invited to make oral FOR FURTHER INFORMATION CONTACT: comments or submit written statements AGENCY: Internal Revenue Service (IRS), Audrey Y. Jenkins at 1–888–912–1227 for consideration. Due to limited Treasury. or 718–488–2085. conference lines, notification of intent
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to participate must be made with Janice SUPPLEMENTARY INFORMATION: Notice is SUMMARY: An open meeting of the Spinks. For more information please hereby given pursuant to Section Taxpayer Advocacy Panel Joint contact Ms. Spinks at 1–888–912–1227 10(a)(2) of the Federal Advisory Committee will be conducted. The or 206–220–6098, or write TAP Office, Committee Act, 5 U.S.C. App. (1988) Taxpayer Advocacy Panel is soliciting 915 2nd Avenue, MS W–406, Seattle, that an open meeting of the Taxpayer public comment, ideas, and suggestions WA 98174 or post comments to the Web Advocacy Panel Taxpayer Assistance on improving customer service at the site: http://www.improveirs.org. Center Committee will be held Tuesday, Internal Revenue Service. The agenda will include various IRS May 25, 2010, at 1 p.m. Central Time via DATES: The meeting will be held issues. telephone conference. The public is Tuesday, May 25, 2010. Dated: April 6, 2010. invited to make oral comments or Shawn F. Collins, submit written statements for FOR FURTHER INFORMATION CONTACT: Director, Taxpayer Advocacy Panel. consideration. Due to limited Susan Gilbert at 1–888–912–1227 or conference lines, notification of intent (515) 564–6638. [FR Doc. 2010–8342 Filed 4–12–10; 8:45 am] to participate must be made with Ellen BILLING CODE 4830–01–P SUPPLEMENTARY INFORMATION: Notice is Smiley. For more information please hereby given pursuant to Section contact Ms. Smiley at 1–888–912–1227 10(a)(2) of the Federal Advisory DEPARTMENT OF THE TREASURY or 414–231–2360, or write TAP Office Committee Act, 5 U.S.C. App. (1988) Stop 1006MIL, 211 West Wisconsin that an open meeting of the Taxpayer Internal Revenue Service Avenue, Milwaukee, WI 53203–2221, or Advocacy Panel Joint Committee will be post comments to the Web site: http:// Open Meeting of the Taxpayer held Tuesday, May 25, 2010, at 3 p.m. www.improveirs.org. Eastern Time via telephone conference. Advocacy Panel Taxpayer Assistance The agenda will include various IRS Center Committee The public is invited to make oral issues. comments or submit written statements AGENCY: Internal Revenue Service (IRS), Dated: April 6, 2010. for consideration. Due to limited Treasury. Shawn F. Collins, conference lines, notification of intent ACTION: Notice of meeting. Director, Taxpayer Advocacy Panel. to participate must be made with Susan [FR Doc. 2010–8343 Filed 4–12–10; 8:45 am] Gilbert. For more information please SUMMARY: An open meeting of the BILLING CODE 4830–01–P contact Ms. Gilbert at 1–888–912–1227 Taxpayer Advocacy Panel Taxpayer or (515) 564–6638 or write: TAP Office, Assistance Center Committee will be 210 Walnut Street, Stop 5115, Des conducted. The Taxpayer Advocacy DEPARTMENT OF THE TREASURY Moines, IA 50309 or contact us at the Panel is soliciting public comments, Web site: http://www.improveirs.org. ideas, and suggestions on improving Internal Revenue Service The agenda will include various IRS customer service at the Internal Revenue issues. Service. Open Meeting of the Taxpayer DATES: The meeting will be held Advocacy Panel Joint Committee Dated: April 6, 2010. Tuesday, May 25, 2010. Shawn F. Collins, AGENCY: Internal Revenue Service (IRS), Director, Taxpayer Advocacy Panel. FOR FURTHER INFORMATION CONTACT: Treasury. Ellen Smiley at 1–888–912–1227 or [FR Doc. 2010–8344 Filed 4–12–10; 8:45 am] ACTION: Notice of meeting. 414–231–2360. BILLING CODE 4830–01–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; Determination of Endangered Status for 48 Species on Kauai and Designation of Critical Habitat; Final Rule
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DEPARTMENT OF THE INTERIOR taxa for which the Service has sufficient threatened species. According to the information on their biological status petitioners, the akikiki and akekee Fish and Wildlife Service and threats to list as endangered or warrant listing under the Act because threatened under the Endangered they have small populations; occur in 50 CFR Part 17 Species Act of 1973, as amended (Act; small geographic ranges; are undergoing 16 U.S.C. 1531 et seq.), but for which rapid population and range declines; [FWS–R1–ES–2008–0046] the development of a listing regulation and face numerous imminent and [MO 92210–0–0008] has been precluded to date by other significant threats including, but not RIN 1018–AV48 higher priority listing activities. limited to, habitat loss and degradation The candidates addressed in this final by alien plants and nonnative ungulates, Endangered and Threatened Wildlife listing rule include the plants Astelia diseases spread by alien mosquitoes, and Plants; Determination of waialealae (painiu), Canavalia predation by alien mammals, and Endangered Status for 48 Species on napaliensis (awikiwiki), Chamaesyce catastrophic events such as hurricanes Kauai and Designation of Critical eleanoriae (akoko), Chamaesyce remyi (VanderWerf and American Bird Habitat var. kauaiensis (akoko), Chamaesyce Conservancy 2007). The petitioners also remyi var. remyi (akoko), Charpentiera cite the inadequacy of regulatory AGENCY: Fish and Wildlife Service, densiflora (papala), Cyanea eleeleensis mechanisms as a threat, noting that as Interior. (haha), Cyanea kuhihewa (also haha), members of the subfamily Drepanidinae ACTION: Final rule. Cyrtandra oenobarba (hiiwale), (Hawaiian honeycreepers), the akikiki Dubautia imbricata subspecies (ssp). and akekee are not protected under the SUMMARY: We, the U.S. Fish and imbricata (naenae), Dubautia Migratory Bird Treaty Act (16 U.S.C. Wildlife Service (Service), determine plantaginea ssp. magnifolia (also 703–712; see 71 FR 50205, August 24, endangered status for 48 species on the naenae), Dubautia waialealae (naenae), 2006). The akikiki was already a island of Kauai in the Hawaiian Islands Geranium kauaiense (nohoanu), candidate species (59 FR 58982, under the Endangered Species Act of Keysseria erici (no common name November 15, 1994). The proposed rule 1973, as amended (Act). We also (ncn)), Keysseria helenae (ncn), (73 FR 62592, October 21, 2008) and designate 26,582 acres (ac) (10,757 Labordia helleri (kamakahala), Labordia this final designation constitute our hectares (ha)) of critical habitat for 47 of pumila (also kamakahala), Lysimachia response to the October 11, 2007, these species. The critical habitat is daphnoides (lehua makanoe), Melicope petition. located in Kauai County, Hawaii. degeneri (alani), Melicope paniculata Critical habitat designation was (also alani), Melicope puberula (alani), In addition to the 31 candidate determined to be not prudent for one Myrsine mezii (kolea), Pittosporum species and the akekee, we are listing species, Pritchardia hardyi (a palm), napaliense (hoawa), Platydesma and designating critical habitat for the which is threatened by over collection rostrata (pilo kea lau li i), Pritchardia following 16 species of plants endemic and vandalism. hardyi (loulu), Psychotria grandiflora to Kauai: Cyanea kolekoleensis, Cyanea dolichopoda, Cyrtandra paliku, Diellia DATES: This rule becomes effective on (kopiko), Psychotria hobdyi (kopiko), mannii, Doryopteris angelica, Dryopteris May 13, 2010. Schiedea attenuata (ncn), and crinalis var. podosorus, Dubautia ADDRESSES: This final rule and Stenogyne kealiae (ncn); the bird, akikiki (Oreomystis bairdi); and the kalalauensis, Dubautia kenwoodii, economic impact analysis are available Lysimachia iniki, Lysimachia pendens, on the Internet at http:// picture-wing fly, Drosophila attigua (now D. sharpi, see explanation under Lysimachia scopulensis, Lysimachia www.regulations.gov. Comments and venosa, Myrsine knudsenii, Phyllostegia materials received, as well as supporting ‘‘Description of the 48 Species’’ below). The candidate status of all of these renovans, Tetraplasandra bisattenuata, documentation used in preparing this species was most recently assessed and and Tetraplasandra flynnii. These 16 final are available for public inspection, reaffirmed in the December 10, 2008, Kauai plant species have been identified by appointment, during normal business Notice of Review of Native Species that by the multiagency (Federal, State, and hours, at the U.S. Fish and Wildlife are Candidates or Proposed for Listing private) Plant Extinction Prevention Service, Pacific Islands Fish and as Threatened or Endangered (CNOR) (PEP) program as being among the rarest Wildlife Office, 300 Ala Moana (73 FR 75176, December 10, 2008). of the rare Hawaiian plant species, and Boulevard, Box 50088, Honolulu, HI On May 4, 2004, the Center for in need of immediate conservation. The 96850; telephone 808-792-9400; Biological Diversity petitioned the goal of this program is to prevent the facsimile 808-792-9581. Secretary of the Interior to list 225 extinction of native plant species with FOR FURTHER INFORMATION CONTACT: species of plants and animals, including fewer than 50 individuals remaining in Loyal Mehrhoff, Field Supervisor, the 31 candidate species listed above, as the wild on the islands of Kauai, Oahu, Pacific Islands Fish and Wildlife Office endangered or threatened under the Maui, Molokai, Lanai, and Hawaii by (see ADDRESSES section). If you use a provisions of the Act. Since then, we establishing a network of multi-island telecommunications device for the deaf have published our annual findings on plant propagation sites and storage (TDD), call the Federal Information the May 4, 2004, petition (including our facilities, and conducting emergency Relay Service (FIRS) at 800-877-8339. findings on the 31 candidate species monitoring and genetic sampling of all SUPPLEMENTARY INFORMATION: This listed above) in the CNORs dated May PEP species (Hawaii Division of document consists of: (1) a final rule to 11, 2005 (70 FR 24870), September 12, Forestry and Wildlife (DOFAW) 2007; list 48 species as endangered; and (2) a 2006 (71 FR 53756), December 6, 2007 Service 2007). The Service has provided final critical habitat designation for 47 (72 FR 69033), and December 10, 2008 significant funding to this program since species. (73 FR 75176). 2002, through section 6 (Cooperation On October 11, 2007, we received a with the States) of the Act. We believe Previous Federal Action petition from Dr. Eric VanderWerf and these 16 plant species warrant listing Thirty-one of the Kauai species in this the American Bird Conservancy to list under the Act for the reasons discussed final rule were previously candidate the akikiki and the akekee (Loxops below (‘‘Description of the 48 Species’’ species. Candidate species are those caeruleirostris) as endangered or and ‘‘Summary of Factors Affecting the
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Species’’). Since these species occur redundancy. In addition, native species wet, dry cliff, and wet cliff (Table 1). within the same 6 ecosystems and share that share ecosystems often face a suite Although most of these species are common threats with the other 32 of common threat factors that require restricted to a single ecosystem, some species, we have included them here in similar management actions to reduce or are found in multiple ecosystems. For an effort to provide them with Federal eliminate those threats. Effective each species, we identified and protection in an expeditious manner. management of these threat factors often evaluated those factors that threaten the On October 21, 2008, we published a requires implementation of conservation species and that may be common to all proposed rule to list these 48 species as actions at the ecosystem scale to of the species at the ecosystem level. For endangered throughout their ranges, and enhance or restore critical ecological example, the degradation of habitat by to designate critical habitat for 47 of processes and provide for long-term feral ungulates is considered a threat to these species (73 FR 62592). The viability of those species in their native each species within each ecosystem. As comment period for that proposal environment. Thus, by taking this a result, this threat factor is considered opened on October 21, 2008, and closed approach, we hope to not only organize to be a multiple ecosystem-level threat, on December 22, 2008. this final rule effectively, but also to as each individual species within each Background more effectively focus conservation ecosystem faces a threat that is management efforts on the common essentially identical in terms of the An Ecosystem-based Approach threats that occur across these nature of the impact, its severity, its On the island of Kauai, as on most of ecosystems, restore ecosystem function imminence, and its scope. We further the Hawaiian Islands, native species for the recovery of each species, and identified and evaluated any threat that occur in the same habitat types provide conservation benefits for factors that may be unique to certain (ecosystems) depend on many of the associated native species, thereby species, and do not apply to all species same biological features and on the potentially precluding the need to list under consideration within the same successful functioning of that ecosystem other species under the Act that occur ecosystem. For example, the threat of to survive. We have therefore organized in these shared ecosystems. avian malaria is unique to the two birds the species addressed in this final rule We are listing each of the 48 species in this final rule, but is not applicable by common ecosystem. Although the endemic to the island of Kauai to any of the other species in this final listing determination for each species is addressed in this rule as an endangered rule. We have identified such threat analyzed separately, we have organized species. These 48 species (45 plants, 2 factors, which apply only to certain the specific analysis for each species birds, and 1 picture-wing fly) are found species within the ecosystems within the context of the broader in 6 ecosystem types: lowland mesic, addressed here as species-specific ecosystem in which it occurs to avoid lowland wet, montane mesic, montane threats. TABLE 1.—THE 48 KAUAI SPECIES AND THE ECOSYSTEMS UPON WHICH THEY DEPEND
Ecosystem Species
Lowland Mesic Plants: Canavalia napaliensis, Chamaesyce eleanoriae, Chamaesyce remyi var. remyi, Charpentiera densiflora, Doryopteris angelica, Dubautia kenwoodii, Labordia helleri, Pittosporum napaliense, Platydesma rostrata, Psychotria hobdyi, Tetraplasandra bisattenuata
Lowland Wet Plants: Chamaesyce remyi var. kauaiensis, Chamaesyce remyi var. remyi, Charpentiera densiflora, Cyanea eleeleensis, Cyanea kolekoleensis, Cyanea kuhihewa, Cyrtandra oenobarba, Dubautia imbricata ssp. imbricata, Labordia helleri, Melicope paniculata, Melicope puberula, Phyllostegia renovans, Platydesma rostrata, Pritchardia hardyi, Stenogyne kealiae, Tetraplasandra bisattenuata, Tetraplasandra flynii
Montane Mesic Plants: Chamaesyce remyi var. remyi, Diellia mannii, Labordia helleri, Myrsine knudsenii, Myrsine mezii, Platydesma rostrata, Psychotria grandiflora, Stenogyne kealiae, Tetraplasandra flynnii Animals: Akekee, Akikiki, Drosophila sharpi
Montane Wet Plants: Astelia waialealae, Chamaesyce remyi var. remyi, Dryopteris crinalis var. podosorus, Dubautia kalalauensis, Dubautia waialealae, Geranium kauaiense, Keysseria erici, Keysseria helenae, Labordia helleri, Labordia pumila, Lysimachia daphnoides, Melicope degeneri, Melicope puberula, Myrsine mezii, Phyllostegia renovans, Platydesma rostrata, Psychotria grandiflora, Tetraplasandra flynnii Ani- mals: Akekee, Akikiki, Drosophila sharpi
Dry Cliff Plants: Chamaesyce eleanoriae, Lysimachia scopulensis, Schiedea attenuata, Stenogyne kealiae
Wet Cliff Plants: Chamaesyce remyi var. kauaiensis, Chamaesyce remyi var. remyi, Cyanea dolichopoda, Cyrtandra oenobarba, Cyrtandra paliku, Dubautia plantaginea ssp. magnifolia, Lysimachia iniki, Lysimachia pendens, Lysimachia venosa, Platydesma rostrata, Pritchardia hardyi
Under the Act, we are required to We have determined that the Although critical habitat is identified for designate critical habitat to the designation of critical habitat is not each species individually, we have maximum extent prudent and prudent for one species of native palm found that the conservation of each determinable concurrently with the tree due to the increased threat of depends, at least in part, on the publication of a final determination that collection that may result from such successful functioning of the commonly a species is endangered or threatened. In designation. The designation of critical shared ecosystem. Each critical habitat this rule, we are designating critical habitat for the other 47 Kauai species is unit identified in this final rule habitat for 47 of the 48 Kauai species. organized by common ecosystem. therefore contains the physical and
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biological features essential to the species in the future. Critical habitat and the soil’s developmental history. conservation of each species and those areas for multiple species may also Eleven of the 12 described soil orders areas that are essential for the better provide for the recovery of these have been reported in Hawaii (Gavenda conservation of each associated species. species by guiding our conservation et al. 1998, p. 96). Hawaii’s basaltic Where the unit is not occupied by a efforts as well as those of our partners, rocks decompose to clay and various particular species, we believe it is and by providing better information to oxides and hydroxides when exposed to essential for the conservation of that the public and other entities about the weather in high rainfall areas. Silica species because it provides the physical important conservation areas. and other elements are leached out, and biological features necessary for the leaving the iron oxides, which are The Island of Kauai expansion of populations in the wild. conspicuously red in color and very All of the areas designated constitute The island of Kauai is the evident in the eroded cliffs of Waimea critical habitat for multiple species, northernmost and oldest of the eight Canyon. These red soils support plant based upon the species’ shared habitat major Hawaiian Islands (Foote et al. life, and have low fertility and nutrient requirements. The identification of 1972, p. 3). It was formed about 6 content (Walker 1999, p. 32). The soils critical habitat also takes into account million years ago by a single shield in drier areas lack significant organic any species-specific physical and volcano and is 553 square miles (sq mi) material and are characterized by biological features necessary for the (1,430 sq kilometers (km)) in area. The deposits, called caliche, of soluble salts conservation of that species as island is characterized by deeply near the soil surface. Caliche may form appropriate. For example, the presence incised canyons and steep ridges concretions (solid mass or coalescence) of specific host plants for larval (Department of Geography 1998, p. 151). around plant roots and stems (Walker development is essential for the The large caldera, once the largest in the 1999, p. 32). conservation of the picture-wing fly Hawaiian Islands, now extends about 10 Because of its age and relative Drosophila sharpi, but is not a mi (16 km) in diameter and comprises isolation, levels of floristic diversity and requirement shared by all species the elevated tableland of the Alakai endemism are higher on Kauai than on within the same ecosystem. Swamp (Department of Geography 1998, any other island in the Hawaiian This approach represents a departure p. 151). To the west of the Alakai archipelago. However, the vegetation of from our previous approaches to Swamp is the deeply incised Waimea Kauai has undergone extreme designating critical habitat for Canyon, extending 10 mi (16 km) in alterations because of past and present endangered and threatened species in length and up to 1 mi (1.6 km) in width. land use. Land with rich soils was Hawaii, which focused on discrete areas Later volcanic activity on the altered by the early Hawaiians and, occupied by the species at the time of southeastern flank of the volcano more recently, converted to agricultural listing. Because Hawaii has 330 species formed the smaller Haupu caldera. use (Gagne and Cuddihy 1999, p. 45) or listed under the Act, the previous Subsequent erosion and collapse of its pasture. Intentional and inadvertent approach to critical habitat designations flank formed Haupu Ridge (Macdonald introduction of alien plant and animal resulted in an overlapping patchwork of et al. 1983, p. 457). species has also contributed to the critical habitat areas that could be The amount of rainfall on the reduction in range of the native confusing to the public to interpret. Hawaiian Islands depends greatly on vegetation on the island of Kauai. More importantly, we have learned that topography, and the orographic (Throughout this rule, the terms ‘‘alien,’’ many native Hawaiian plants and (mountain-caused) effect is revealed by ‘‘feral,’’ ‘‘nonnative,’’ and ‘‘introduced’’ animals currently occupy areas of the wide range in the pattern of annual all refer to species that are not native to marginal habitat because the threats are rainfall, from 10 inches (in) to 450 in (25 the Hawaiian Islands.) Most of the taxa reduced in those areas, but these species centimeters (cm) to 1,145 cm) included in this rule persist on steep can thrive when reintroduced into (Giambelluca and Schroeder 1998, p. slopes, precipitous cliffs, valley historical habitats when threats are 59). Variations in the landscape can headwalls, and other regions where being effectively managed. For this create microclimates, with large changes unsuitable topography has prevented reason, we believe it is important to in rainfall and wind patterns over very urbanization and agricultural designate unoccupied habitat in those short distances (Wagner et al. 1999, p. development, or where inaccessibility cases where it is essential to the 43). Mount Waialeale, Kauai’s second has limited encroachment by nonnative recovery of the species and a highest point at 5,148 feet (ft) (1,569 plant and animal species. designation limited to its present range meters (m)) in elevation (Walker 1999, would be inadequate to ensure the p. 21) is one of the wettest spots on Kauai Ecosystems conservation of the species (50 CFR earth, with annual rainfall measured at The six Kauai ecosystems that support 424.12 (e)). more than 450 in (1,145 cm) the species addressed in this final rule We believe the approach adopted in (Department of Geography 1998, p. 151). are described in the following sections.. this final rule will make critical habitat One of the island’s most famous features in Hawaii a more useful conservation is the Na Pali Coast, where stream and Lowland Mesic tool for land managers. Focusing on the wave action have cut deep valleys and The lowland mesic ecosystem management and restoration of habitat eroded the land to form precipitous includes a variety of grasslands, at the ecosystem scale and on ecosystem cliffs as high as 3,000 ft (914 m) shrublands, and forests, generally below processes that these species require will (Joesting 1984, p. 14). 3,000 ft (914 m) elevation, that receive result in more effective conservation The current soil classification system between 50 and 75 in (127 and 191 cm) than a designation based solely on the for the Hawaiian Islands distinguishes of annual rainfall, or in otherwise mesic locations of the last few known soil types based on their measurable substrate conditions (The Nature individuals. In addition, we believe this physical and chemical properties, and Conservancy (TNC) 2006b). In the approach will aid recovery given the environmental factors that influenced Hawaiian Islands, this ecosystem is uncertainties of climate change and their formation. These characteristics found on Hawaii, Maui, Molokai, Lanai, other processes that may impact highly include fertility, climate zone, degree of Oahu, and Kauai, on both windward localized habitat conditions and features weathering, composition and and leeward sides of the islands. On essential to the conservation of the arrangement of horizons (soil layers), Kauai, this ecosystem is typically found
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on the western slopes of the island Niihau and Kahoolawe (TNC 2006f). On the U.S. Fish and Wildlife Service (Gagne and Cuddihy 1999, p. 75; TNC Kauai it is best developed in the summit (Service) undertook a systematic survey 2006b). Biological diversity is high in plateau of Waialeale and Alakai. In this of bogs on the island of Kauai, revisiting this system (TNC 2006b), and 11 of the system, biological diversity is moderate all of the historically known locations of 48 species included in this final rule are to high (TNC 2006f), and 21 of the 48 A. waialealae, as well as 16 additional reported from this ecosystem (Hawaii species included in this final rule are bogs. At that time, A. waialealae was Biodiversity and Mapping Program reported from this ecosystem (HBMP confirmed to exist in three bogs. One (HBMP) 2007; The Nature Conservancy 2007; TNCH 2007). bog, known as Sincock Bog 1, contained of Hawaii (TNCH) 2007). 3 Astelia clumps with 3 individuals in Dry Cliff one, 5 in another, and possibly 10 in the Lowland Wet The dry cliff ecological system is third, for a total of 18 individuals. The lowland wet ecological system is composed of vegetation communities Sincock Bog 2 contained two clumps, generally found below 3,000 ft (914 m) occupying steep slopes (greater than 65 with one individual in each, and elevation on the windward sides of the degrees) in areas that receive less than Waikoali Bog, or Circle Bog, contained main Hawaiian Islands, except 75 in (191 cm) of rainfall annually, or two clumps with one individual in each Kahoolawe and Niihau (Gagne and in otherwise dry substrate conditions (Perlman and Wood 1995, pp. 9–-11). In Cuddihy 1999, p. 85; TNC 2006c). These (TNC 2006a). This system is found on 1996 and 1997, both Sincock Bog 1 and areas include a variety of wet all of the main Hawaiian Islands except Sincock Bog 2 were fenced, followed by grasslands, shrublands, and forests that Niihau, and on the island of Kauai is Circle bog in 1998. Regular monitoring receive greater than 75 in (191 cm) of best developed in the leeward canyons. of these bogs commenced, and with annual precipitation, or are found in A variety of grasslands and shrublands protection from the fences, there was an otherwise wet substrate conditions occur within this system (TNC 2006a). increase in numbers of clumps and (TNC 2006c). On Kauai, this system is Biological diversity is low to moderate individuals of A. waialealae found in all best developed in wet valleys and in this system (TNC 2006a), and 4 of the three bogs. By 2001, the numbers of slopes adjacent to the summit plateau of 48 species included in this final rule are clumps (and individuals) reached their Waialealae and Alakai (TNC 2006c). reported from this ecosystem (HBMP peaks of 5 clumps (9 individuals) for According to TNC, biological diversity 2007; TNCH 2007). Circle bog, 6 clumps (36 individuals) for is high in this system (TNC 2006c), and Sincock Bog 1, and 2 clumps (7 17 of the 48 species included in this Wet Cliff individuals) for Sincock Bog 2. By 2003, final rule are reported from this The wet cliff ecological system is numbers of individuals began dropping ecosystem (HBMP 2007; TNCH 2007). generally composed of grasslands and dramatically, with visible signs of poor shrublands on near-vertical slopes health for those remaining (USFWS Montane Mesic (greater than 65 degrees) in areas that Kauai monitoring database 2008). Some A variety of natural communities (e.g., receive more than 75 in (191 cm) of individuals were removed at that point grasslands, shrublands, and forests) are annual precipitation, or that are in for preservation in local propagation found in the montane mesic ecological otherwise wet substrate conditions facilities. Currently, there are 16 system. This system is found between (TNC 2006d). This system is found on individuals, possibly representing 6 3,000 and 6,600 ft (914 and 2,012 m) the islands of Hawaii, Maui, Molokai, genetically distinct plants (Service elevation in areas receiving 50 to 75 in Lanai, Oahu, and Kauai. On Kauai, this 2005a; Wood 2006, pp. 8–9; USFWS (127 to 191 cm) of precipitation yearly system is typically found on the Kauai monitoring database 2008; Wood (TNC 2006e). The montane mesic windward cliffs adjacent to Waialeale 2008). system is found on the islands of (TNC 2006d). Biological diversity is low Canavalia napaliensis (awikiwiki), a Hawaii, Maui, Molokai, and Kauai. On to moderate in this system (TNC 2006d), climbing plant in the pea family Kauai, this system is best developed on and 11 of the 48 species included in this (Fabaceae), occurs in open sites, on the west-facing slopes. The upper final rule are reported from this talus slopes, and on gulch bottoms in elevation for the montane mesic system ecosystem (HBMP 2007; TNCH 2007). mesic forest in the lowland mesic on Kauai is constrained by the ecosystem, at elevations between 20 and maximum elevation on the island (5,243 Description of the 48 Species 1,900 ft (6 and 579 m) (Wagner and ft (1,598 m)). Biological diversity is Here we provide a brief description of Herbst 1999, p. 654; TNCH 2007). ranked as moderate in the montane each of the 48 species, presented in Canavalia napaliensis was historically mesic system, according to TNC (TNC alphabetical order by genus; plants are known from 12 locations along the 2006e), and 12 of the 48 species presented first, followed by animals. northwestern coast of the island of included in this final rule are reported Kauai, extending westward from Haena Plants from this ecosystem (HBMP 2007; to Makaha ridge (HBMP 2007). TNCH 2007). Astelia waialealae (painiu), an herb in Currently, this species is restricted to a the Asteliaceae family, occurs in bogs small section of the Na Pali coast from Montane Wet and on bog hummocks (low mounds or Haena to Kalalau Valley (S. Perlman, The montane wet ecological system is ridges of vegetation) dominated by pers. comm. 2000; HBMP 2007), in 5 composed of natural communities Metrosideros polymorpha (ohia) in the populations totaling approximately 106 (grasslands, shrublands, forests, bogs) montane wet ecosystem at elevations to 206 individuals (HBMP 2007). The found at elevations between 3,000 and between 4,000 and 5,000 ft (1,220 and populations are located in Hoolulu 6,600 ft (914 and 2,012 m) and in areas 1,525 m) (Wagner et al. 1999, p. 1461; Valley (50 to 100 individuals); where annual precipitation is greater TNCH 2007). Astelia waialealae was Waiahuaka Valley (1 individual); than 75 in (191 cm) (TNC 2006f). The known historically from five locations Pohakuao (5 individuals); Kalalau upper elevation for the montane wet in the Alakai Swamp region of Kauai Valley (50 to 100 individuals); and system on Kauai is constrained by the (Wagner et al. 1999, p. 1461; HBMP Limahuli Valley (1 individual) (Wagner maximum elevation on the island (5,243 2007). Between October and December and Herbst 1999, p. 654; HBMP 2007). ft (1,598 m)). This system is found on all 1994, botanists from the National Chamaesyce eleanoriae (akoko), a of the main Hawaiian Islands except Tropical Botanical Garden (NTBG) and small shrub in the spurge family
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(Euphorbiaceae), is restricted to steep, Chamaesyce remyi var. remyi (akoko) growing in a shaded gulch in wet forest, north-facing, narrow ridge crests, is a vine-like shrub in the spurge family surrounded by steep, precipitous cliffs outcrops, and steep rocky slopes and (Euphorbiaceae) found in the lowland of Pali Eleele, at an elevation of 699 ft upper portions of basalt cliffs in the dry mesic, lowland wet, wet cliff, montane (213 m) (HBMP 2007; Lammers 1992, p. cliff and lowland mesic ecosystems mesic, and montane wet ecosystems in 129). This species was discovered in (Lorence and Wagner 1996, p. 68; K. mesic to wet Metrosideros polymorpha- Wainiha Valley on the island of Kauai Wood, NTBG 2007a; TNCH 2007). Dicranopteris linearis (ohia-uluhe) in 1977, in one population noted as Documented habitats include forest, at elevations between 1,200 and ‘‘fewer than 10’’ individuals (Lammers Metrosideros-Diospyros (ohia-lama) 4,100 ft (366 and 1,250 m) (Wood 1998; 1992, p. 129; K. Wood, pers. comm. mesic forest, Metrosideros cliff Koutnik 1999, pp. 613–614; HBMP 2000; HBMP 2007). Collections for shrubland, Metrosideros mesic 2007; TNCH 2007). This species is genetic storage and ex situ (off site) shrubland, and Eragrostis variabilis historically known from widely propagation were not made at the time (kawelu) coastal dry cliffs, at elevations distributed populations on the island of of the 1977 discovery. Since its between 885 and 3,499 ft (270 and 1,036 Kauai (HBMP 2007). Currently C. remyi discovery in 1977, subsequent surveys m) (HBMP 2007). Chamaesyce var. remyi is found in 10 populations for this species have not been conducted eleanoriae was historically known from totaling a little more than 350 in the original (type) location. Although 10 populations totaling fewer than 500 individuals at Pohakupili, Makaleha, individuals of this species were not individuals (K. Wood 2007a; Lorence Malamamaiki, Limahuli, Lumahai, observed in surveys conducted in and Wagner 1996, pp. 68–70). Currently, Limahuli-Hanakapiai, Kalalau-Honopu, August 2001 and June 2002 in areas three populations are known: one at the Koaie canyon, Wahiawa drainage, and adjacent to the original location, much Kalalau Valley rim between 2,950 and Puu Kolo (Wood 1998; K. Wood, pers. of the suitable habitat (Metrosideros 3,200 ft (900 and 975 m), below and comm. 2005a; HBMP 2007). lowland wet forest) for this species on between the two Kalalau lookouts; one Charpentiera densiflora (papala) is a Kauai has not been surveyed. If surveys at Alealau above Kalalau at 3,100 ft (945 tree in the amaranth family are conducted, additional individuals m) elevation; and one at Pohakuao, an (Amaranthaceae) which occurs are likely to be found (S. Perlman and isolated hanging valley northeast of primarily in the lowland mesic K. Wood, pers. comm. 2007). Kalalau, at elevations from 886 to 2,592 ecosystem, with one record from the Cyanea kolekoleensis (haha), a shrub ft (270 to 790 m). As of the last lowland wet ecosystem (Wagner et al. in the bellflower family monitoring visit in 2001, these 3 1999, p. 190; HBMP 2007; TNCH 2007). (Campanulaceae), occurs in wet populations combined totaled fewer This species is found in moist, closed Metrosideros polymorpha forest in the than 50 individuals (NTBG 2007). areas, and grows along drainages and in lowland wet ecosystem at elevations of gulches in valleys, primarily in 2,125 to 2,500 ft (650 to 765 m) Chamaesyce remyi var. kauaiensis Diospyros-Metrosideros (lama-ohia) (Lammers 1992, p. 130; HBMP 2007; (akoko), a shrub in the spurge family mixed mesic forest, at elevations TNCH 2007). First discovered in 1987 in (Euphorbiaceae), is found in the between 400 and 2,200 ft (122 and 671 the Wahiawa drainage, the last known lowland wet and wet cliff ecosystems in m) (HBMP 2007). Historically, C. C. kolekoleensis was observed in 1992. Metrosideros polymorpha wet forest at densiflora was found along the Kalalau Seeds were in storage and propagation elevations between 1,900 and 2,297 ft trail in the Hoolulu Valley, with limited for this species was attempted, but none (579 and 700 m) (Koutnik 1999, pp. distribution in three valleys (including survived (M. Clark, NTBG 2007; Lyon 613–614; HBMP 2007; TNCH 2007). Hanakapiai and Hanakoa) along the Na Arboretum 2007). However, there are Little is known about the historical Pali Coast of Kauai (Sohmer 1972, p. many areas within the ecosystem type range of this species; however, two 294). Currently, 7 populations are in the Wahiawa drainage that have not collections made on private lands at known, totaling approximately 400 been surveyed for this species, from Mt. Kaholuamanao and near Hanapepe Falls individuals, in Hanakapiai, Kalalau, Kahili to Kapalaoa and the Hanapepe in 1916 and 1926, respectively, indicate Limahuli, Hoolulu, and Waiahuakua Valley rim, and species experts are that its range likely extended south and valleys, and in Pohakuao, a hanging confident that additional individuals west from its currently known locations valley between Kalalau and Hanakoa will be found (S. Perlman 2007). on the island of Kauai (HBMP 2007). (HBMP 2007). Cyanea kuhihewa (haha), a shrub in Currently, C. remyi var. kauaiensis is Cyanea dolichopoda (haha) is a shrub the bellflower family (Campanulaceae), found in Lumahai Valley, Wainiha, in the bellflower family is reported from Metrosideros Wailua River, the ‘‘Blue Hole’’ at the (Campanulaceae). It is found in polymorpha-Dicranopteris linearis wet head of Wailua River in the Lihue-Koloa Metrosideros polymorpha lowland wet forest at an elevation of 1,680 ft (512 m) forest reserve, and at Iliiliula (K. Wood, shrubland on a cliff face at in the lowland wet ecosystem (Lammers pers. comm. 2005a; HBMP 2007). Based approximately 2,300 ft (700 m) elevation 1996, pp. 238–240; HBMP 2007; TNCH on surveys conducted from 2000 within the wet cliff ecosystem (Lammers 2007). In a 1994 survey for C. kuhihewa, through 2004, the number of individuals and Lorence 1993, p. 432; TNCH 2007). seven individuals were observed, most at Lumahai Valley dropped from 50 to The species was first discovered in 1990 of which were damaged by a nonnative only ‘‘occasional.’’ The number of in the ‘‘Blue Hole’’ area below Mt. insect, the two-spotted leafhopper individuals at Wailua River dropped Waialeale, and the plant was last seen (Sophonia rufofacia) (NTBG Provenance from 500 to 200; the number of in 1992 (Lammers and Lorence 1993, Report 1994). In 2001, only one individuals at the Wainiha population pp. 431–432). However, additional individual plant remained, which was increased from 200 to as many as 700; individuals are very likely to be found observed dead in 2003 (Wood et al. about 200 are found at ‘‘Blue Hole’’; and in the extremely steep habitat with 2002, p. 3; S. Perlman, pers. comm. a population of 20 individuals was additional surveys (S. Perlman 2007). 2003a). Prior to that time, seeds and found in Iliiliula (K. Wood, pers. comm. Cyanea eleeleensis (haha) is a shrub tissue were collected for genetic storage 2005a; HBMP 2007). The total number in the bellflower family and propagation; however, this species of individuals is at least 920 and (Campanulaceae) and is reported from is no longer in storage or propagation possibly over 1,000 in the 5 the lowland wet ecosystem (Lammers (Wood et al. 2002, p. 3; Bender 2006, p. populations. 1992, p. 129; TNCH 2007). It was found 1; N. Sugii, Lyon Arboretum, pers.
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comm. 2006; V. Pence, Cincinnati Zoo Acacia koa (koa)–Metrosideros 1999, p. 298; TNCH 2007). Occurrence and Botanical Garden, pers. comm. polymorpha dominated montane mesic records show that D. imbricata ssp. 2007; D. Burney, NTBG, pers. comm. forest in the past, but which is now a imbricata has typically been found in 2009). Much of the suitable habitat forest dominated by the nonnative wet Metrosideros polymorpha forest and (Metrosideros lowland wet forest) for Corynocarpus laevigatus (karakanut) in Metrosideros, Oreobolus (sedge), this species on Kauai has not been the montane mesic ecosystem, at an Rhynchospora (kuolohia) bogs at surveyed. elevation of 3,450 ft (1,050 m) elevations between approximately 2,165 Cyrtandra oenobarba (haiwale) is a (Aguraiuja and Wood 2003, p. 155; and 3,640 ft (660 and 1,110 m) (HBMP subshrub (a low-growing woody shrub HBMP 2007; TNCH 2007). Diellia 2007). Historically and currently, D. or perennial with a woody base) in the mannii was historically known from one imbricata ssp. imbricata is known only African violet family (Gesneriaceae) that location in the Halemanu area of what from the Wahiawa Mountains of Kauai occurs in the lowland wet and wet cliff is now Kokee State Park, in the (St. John and Carr 1981, pp. 198, 201; ecosystems (Wagner et al. 1999, pp. northwestern region of Kauai. The Carr 1999, p. 298; HBMP 2007). There 770–771; TNCH 2007). Cyrtandra species was thought to be extinct since are approximately 200 individuals at oenobarba is found on wet slopes, the early 1900s, until 2002 when a Wahaiawa drainage, approximately mossy areas, or in rock crevices near single individual was rediscovered 1,000 individuals on both sides of the waterfalls in Metrosideros polymorpha- (Aguraiuja and Wood 2003, pp. 154– ridge between Hanapepe and Iole, and Dicranopteris linearis wet cliffs, forest, 155; Palmer 2003, p. 120). Currently, the an estimate of several hundred and shrubland, at elevations between species is known only from this one individuals at Iliiliula (K. Wood, pers. 1,320 and 2,800 ft (402 and 853 m) individual in the southeastern branch of comm. 2005a; HBMP 2007). These 3 (Wood 1998, p. 3; HBMP 2007). Nawaimaka Stream in the Halemanu populations total approximately 1,400 Historically, wide-ranging collections Mountains of Kokee State Park (HBMP individuals (K. Wood, pers. comm. were made of C. oenobarba on the 2007). 2005a; HBMP 2007). island of Kauai, from the eastern side at Doryopteris angelica is a fern in the Dubautia kalalauensis (naenae), a Kekoiki ridge, the northern coast at pteris family (Pteridaceae) found in shrub or tree in the sunflower family Haena, the south-central area at Olokele Acacia koa–Metrosideros polymorpha (Asteraceae), is found in the montane and Hanapepe, and from the south at lowland mesic forest in the lowland wet ecosystem in Metrosideros Haupu (NTBG Provenance Report 1993; mesic ecosystem at elevations between polymorpha wet forest at elevations HBMP 2007). Currently, populations of roughly 1,900 and 3,000 ft (579 and 914 between 4,000 and 4,050 ft (1,205 and C. oenobarba in the Halelea Forest m) (HBMP 2007; TNCH 2007). Three 1,235 m) (Baldwin and Carr 2005, p. Reserve include east Mamalahoa (10 populations of fewer than 20 261; TNCH 2007). Historically, this individuals), north Namolokama (15 to individuals were discovered in 1994, species, as a part of the species 200 individuals), and Hanalei Valley and currently the species is known from Dubautia laxa, was known from several (scattered) on State land, and upper approximately 29 to 54 individuals in 5 locations below the rim of Kalalau Lumahai Valley (50 individuals) and populations at Awaawapuhi (2 to 3 Valley in Kokee State Park in the Wainiha (100 individuals) on private individuals), Mahanaloa (3 to 6 northwestern region of Kauai. Currently, land (HBMP 2007). Populations of C. individuals), Makaha (10 to 20 D. kalalauensis is found in only one oenobarba in the Lihue-Koloa Forest individuals), Kuia (10 to 20 location along the rim of Kalalau Valley Reserve include Wailua River (40 to 50 individuals), and Paaiki (4 to 5 near Puu o Kila Lookout and totals 26 individuals) on State land, and Iliiliula individuals) (NTBG 1998; Wagner individuals (Baldwin and Carr 2005, p. drainage (occasional) and Wahiawa [W.H.] et al. 1999b, p. 147; Wood 1999, 261). drainage (50 individuals) on private 2000, 2007a; S. Perlman 2006; HBMP Dubautia kenwoodii (naenae), a shrub land (HBMP 2007). The 8 populations 2007). in the sunflower family (Asteraceae), is total 270 to as many as 450 individuals Dryopteris crinalis var. podosorus, a found in diverse lowland mesic forest in (NTBG Provenance Report 1993; HBMP fern in the dryopteris family the lowland mesic ecosystem at an 2007; Wood 1998, p. 3). (Dryopteridaceae), is known from steep elevation of 2,625 ft (800 m) (HBMP Cyrtandra paliku (haiwale) is a to vertical riparian basalt walls within 2007; TNCH 2007; Wood 2007b). First subshrub in the African violet family dark seeping drainages in Metrosideros described in 1998 as a new species, D. (Gesneriaceae) that occurs on seeping polymorpha montane wet forest within kenwoodii is known from one basalt rock faces of north-facing cliffs the montane wet ecosystem, from 4,000 individual found below the western rim dominated by Metrosideros polymorpha to 5,100 ft (1,200 to 1,550 m) in of Kalalau Valley, in the northwestern and Dicranopteris linearis in the wet elevation (TNCH 2007; Wood 2007a). region of Kauai (Carr 1998). This cliff ecosystem, at elevations between Historically, this variety was known individual was not observed after 2,200 and 2,800 ft (670 to 850 m). from the Kokee area, Kawaikoi, and Hurricane Iniki, and may possibly be Cyrtandra paliku was first discovered in Waialeale (Palmer 2003, p. 139). extirpated; however, more individuals 1993 on the cliffs below Kekoiki, in the Currently, 3 populations totaling 32 to may be found in future surveys (D. Makaleha Mountains of Kauai, where 47 individuals are known. The Mohihi Burney, NTBG, pers. comm. 2009). approximately 70 individuals were population is made up of 10 to 20 Dubautia plantaginea ssp. magnifolia found (Wagner et al. 2001, pp. 150–151; individuals, from 15 to 20 individuals (naenae) is a shrub or small tree in the HBMP 2007; TNCH 2007). The species comprise the south Kilohana sunflower family (Asteraceae) found in maintained a population of population, and the Waialeale the wet cliff ecosystem (Carr 1999, p. approximately 70 individuals from 1993 population is known from 7 individuals 304; HBMP 2007; TNCH 2007). Typical through 1999; however, there are (Wood 2007a). habitat for this species includes wet cliff currently only 10 known individuals (S. Dubautia imbricata ssp. imbricata and wet forest and shrubland at Perlman 2006). (naenae), a shrub in the sunflower elevations between 1,542 and 2,395 ft Diellia mannii is a fern in the family (Asteraceae), currently occurs in (470 and 730 m) (HBMP 2007). asplenium family (Aspleniaceae). It is the lowland wet ecosystem, although Historically, D. plantaginea ssp. found on a northwest-facing slope just there are historical records from the magnifolia was known from two above a gulch bottom in what was likely montane wet ecosystem as well (Carr populations less than 2 mi (3.2 km)
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apart in bog habitat in the Alakai Little is known of the historical and grass bogs (Wagner et al. 1999, p. Wilderness Preserve and the Na Pali- occurrences of K. erici. The type was 860; HBMP 2007; TNCH 2007). Little is Kona Forest Reserve on Kauai (HBMP collected by Forbes (1918, p. 306) from known of the historical locations of L. 2007). In 1992, the year that Hurricane the ‘‘Alakai swamp, Waimea drainage pumila on Kauai. The type specimen Iniki struck Kauai, the only known basin’’ on Kauai. Currently, this species was collected by Wawra (1869, 1870) at population at ‘‘Blue Hole’’ at the is found in three to four populations the summit of Waialeale. Currently, L. headwaters of the Wailua River of ‘‘a totaling several thousand individuals pumila is found in three populations on couple hundred’’ individuals was (HBMP 2007). The populations occur at the Alakai plateau. The largest greatly reduced. Currently, there are Namolokama, Hanakapiai-Wainiha population along the Wainiha rim totals approximately 100 individuals (S. ridge, In-between Bog, and at the 500 individuals (HBMP 2007). There are Perlman, pers. comm. 2003b). Kilohana bogs (including Rain Gauge also about 300 to 400 individuals at the Dubautia waialealae (naenae) is a Bog, T Bog, and Platanthera Bog) (HBMP summit of Waialeale, and occasional dome or tussock-shaped shrub in the 2007). individuals at Namolakama (Wood sunflower family (Asteraceae) that Keysseria helenae is an herb in the 2006, p. 10). The total number of known occurs in bogs in the montane wet sunflower family (Asteraceae) and is individuals from all 3 populations is ecosystem at elevations between 3,980 found in Metrosideros polymorpha or 800 to 900; however, one estimate and 5,249 ft (1,213 and 1,600 m) (Carr mixed sedge and grass bogs at elevations suggests that the overall population in 1999, p. 308; HBMP 2007; TNCH 2007). between 3,900 and 5,120 ft (1,189 and the summit areas may be as high as The type collection was made on the 1,561 m) in the montane wet ecosystem 5,000 to 6,000 individuals (Wood 2006, summit of Waialeale in 1909 (Rock (Mill 1999, p. 330; HBMP 2007; TNCH p. 10). 1910, p. 304), but little is known of 2007). Little is known of the historical Lysimachia daphnoides (lehua other historical locations of D. occurrences of K. helenae. The type was makanoe), a member of the myrsine waialealae on Kauai. Currently, there is collected from the ‘‘swamp near family (Myrsinaceae), is found in one large population centered on the Kaholuamano’’ by Forbes (1918, p. 306). Metrosideros polymorpha mixed bogs rain-gauge summit of Waialeale, with Currently, this species is found at on hummocks, at elevations between many subpopulations radiating about Kauluwehi Bog in the Alakai 3,960 and 4,440 ft (1,207 and 1,353 m) 0.6 mi (1 km) to the north and south. Wilderness Preserve, at Waialeale, and in the montane wet ecosystem (Marr These subpopulations were observed in on Kahili-Kawaikini Ridge, totaling and Bohm 1997, p. 265; Wagner et al. groups of 7 to 400 individuals (Wood approximately 300 individuals (K. 1999, p. 1,080; HBMP 2007; TNCH 2006, pp. 25–29), with a total Wood, pers. comm. 2003b; HBMP 2007). 2007). Historically, L. daphnoides was population of 3,000 individuals (Wood Labordia helleri (kamakahala) is a known from the more southerly 2006, p. 9). In 1994, a single individual shrub, sometimes climbing, in the mountains of Kauai, including the of D. waialealae was reported at North logania family (Loganiaceae) (Wagner et Wahiawa drainage and ridges, in what Bog, 8.5 mi (14 km) away from the al. 1999, pp. 856–857). It occurs in is now the Lihue-Koloa Forest Reserve population at Waialeale; however, in Metrosideros-Acacia-Dicranopteris (HBMP 2007). Currently, this species is 2006, it was reported that this mesic to wet forest, at elevations found in the Alakai Wilderness Preserve individual had died (K. Wood 1994a; M. between 1,200 and 3,900 ft (366 and and the Na Pali Kona Forest Reserve, in Bruegmann, pers. comm. 2006b; HBMP 1,189 m), in the lowland mesic, lowland 3 populations totaling 200 to 300 2007). wet, montane mesic, and montane wet individuals (HBMP 2007; Service Geranium kauaiense (nohoanu) is a ecosystems (HBMP 2007; TNCH 2007). 2005a). The population along the Alakai decumbent (reclining) subshrub in the Historically, L. helleri was wide-ranging swamp trail (including Charlie’s Bog, geranium family (Geraniaceae) (Wagner on Kauai. Collections were made as far Kilohana, south Kilohana, and et al. 1999, p. 733). It occurs in the south as the Haupu Mountains, through northwest Kilohana) totals 190 to 280 montane wet ecosystem in central Kauai to the northwestern coast individuals; the second population Metrosideros-Rhynchospora bogs and (HBMP 2007). Currently, there are 10 includes Sincock Bog 1 and Kauluwehi bog margins at elevations between 4,000 populations totaling 350 to 550 (21 individuals); and the third and 4,080 ft (1,219 and 1,463 m) individuals. The largest population population occurs at Waiakoali-Mohihi (Wagner et al. 1999, p. 733; HBMP 2007; extends from the Na Pali Kona Forest and Mohihi drainage (7 individuals) TNCH 2007). Historically, G. kauaiense Reserve into Kuia Natural Area Reserve (HBMP 2007). was known from montane bogs on the (NAR), and contains 300 to 500 Lysimachia iniki is a woody shrub in island of Kauai, ranging from North Bog individuals at Honopu, Awaawapuhi, the myrsine family (Myrsinaceae) that to as far south as the summit of Kuia drainage, and Kalalau-Milolii occurs on wet, mossy, or rocky cliffs in Waialeale (HBMP 2007). Currently, ridge. Other much smaller populations the wet cliff ecosystem at 2,400 ft (720 there are 3 subpopulations within a very occur at upper Mahanaloa (10 m) (Marr and Bohm 1997, pp. 270–271; small range (within 0.5 mi, 0.8 km) in individuals), Limahuli (recorded as TNCH 2007). This species was first the Halehaha Bogs of the Alakai ‘‘occasional’’ in HBMP database), Waioli described in 1997 from material Wilderness Preserve totaling (1 individual), Kaunuohua ridge (1 collected in the ‘‘Blue Hole’’ at the approximately 140 individuals, and 3 individual), Kohua ridge (1 individual), headwaters of the Wailua River on individuals at the Waialeale Summit Koaie stream (10 individuals), Kawaiiki Kauai. At the time it was discovered it Bog (K. Wood 1994b; S. Perlman, pers. (3 individuals), southeast Puu Kolo was known from 26 individuals, and comm. 1999b; Wood 2006, p. 10; HBMP (recorded as ‘‘localized’’ in HBMP currently at least 40 individuals are 2007; Wood 2008). database), and Puu Kolo-Kahuamoa (1 known (Marr and Bohm 1997, pp. 270– Keysseria erici is a herb in the individual) (HBMP 2007). 271; S. Perlman 2006, 2007). sunflower family (Asteraceae) that Labordia pumila (kamakahala), a Lysimachia pendens is a many- occurs in Metrosideros mixed bogs in shrub in the logania family branched shrub in the myrsine family the montane wet ecosystem, at (Loganiaceae), occurs in the montane (Myrsinaceae) and is reported from wet, elevations between 4,000 and 5,120 ft wet ecosystem at elevations between mossy, or rocky cliffs in the wet cliff (1,219 and 1,561 m) (Mill 1999, pp. 3,478 and 5,100 ft (1,060 to 1,555 m) in ecosystem at 2,400 ft (720 m) (Marr and 329–330; HBMP 2007; TNCH 2007). Metrosideros polymorpha mixed sedge Bohm 1997, p. 275; TNCH 2007). This
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species was discovered in the ‘‘Blue 1999). The Pohakuao individual has not 100 individuals are found within the Hole’’ area of Kauai in 1987 from several been relocated since its discovery Kalalau area, and approximately 200 small populations totaling (Wood 2000, p. 5). Ten trees were individuals occur within the Hono o Na approximately 100 individuals (Marr originally documented during the Pali NAR, for a total of approximately and Bohm 1997, p. 275; DOFAW 2005 discovery of the Hanakoa population in 900 individuals (HBMP 2007). [Comprehensive Conservation Wildlife 1995 (Wood 2000, p. 4; Wood 2007 pp. Myrsine knudsenii (kolea) is a small Strategy]). Many plants were destroyed 4–6). Since 1995, 2 of the trees have tree in the myrsine family by two major landslides that apparently died and 3 additional individuals were (Myrsinaceae). Historically, the species occurred between 1997 and 2003, based located, for a current total of 11 may have been found in lowland mesic on information taken from field survey individuals at Hanakoa (S. Perlman and lowland wet ecosystems, but reports. Currently, the species is known 2007c; N. Tangalin 2007a). One small currently it is only known from Acacia from only eight individuals (S. Perlman mature individual of M. degeneri was koa-Metrosideros polymorpha- 2003, 2006, and 2007). found growing in Koaie Canyon’s upper Dicranopteris linearis mesic forest at Lysimachia scopulensis, a shrub in drainage in 1999, and was last observed elevations between 3,200 and 3,900 ft the myrsine family (Myrsinaceae), is there in September of 2006 (K. Wood, (975 and 1,200 m) in the montane mesic found on cliffs in lowland diverse mesic pers. comm. 2007b). A new population ecosystem (Wagner et al. 1999, p. 941; forest pockets at elevations between of 9 individuals was found in Wainiha Wood et al. 2002, p. 15; HBMP 2007; 2,950 and 3,200 ft (900 and 975 m) Valley, bringing the total known number TNCH 2007). Historically, M. knudsenii within the dry cliff ecosystem (Wood of M. degeneri to 22, or possibly 23, was found in Hanapepe Valley in south- 2007d; TNCH 2007). First discovered in known individuals (Wood 2008). central Kauai; Kawaiula Trail in western 1991 in Kalalau Valley, this species is Melicope paniculata (alani) is a tree in Kauai; and Awaawapuhi, Kumuwela, currently known from two populations. the rue family (Rutaceae) (Stone et al. Honopu, and Nualolo in the Kokee The Kalalau population is comprised of 1999, p. 1,199). It occurs in the lowland region of the island of Kauai (Wagner et approximately 15 individuals and the wet ecosystem in forests dominated by al. 1999, p. 941). Currently, the species Puu Kii population is comprised of 10 Metrosideros polymorpha, at elevations is known from 3 populations totaling to 15 individuals, for a total of 25 to 30 between 1,200 and 2,680 ft (365 and 815 approximately 30 individuals at individuals (Marr and Bohm 1997, pp. m) (Stone et al. 1999, p. 1199; HBMP Honopu, Awaawapuhi, and Nualolo (S. 283–284; Wood 2007d). 2007; TNCH 2007). This species was Perlman 2007; Wood et al. 2001, p. 10; Lysimachia venosa, a shrub in the historically reported from central Kauai Wood et al. 2002, p. 15; HBMP 2007; myrsine family (Myrsinaceae), occurs in (HBMP 2007; Stone et al. 1999, p. 1199). Wood 4907 (BISH)). Metrosideros polymorpha dominated Currently, M. paniculata is known from Myrsine mezii (kolea), a small tree in wet forest areas in the wet cliff 6 sites, with 5 individuals in upper the myrsine family (Myrsinaceae), is ecosystem, at elevations between 3,000 Limahuli Valley, 3 individuals along the found in Acacia-Metrosideros forest in and 5,700 ft (915 and 1,740 m) (Marr north fork of the Wailua River, 1 to 5 the montane mesic and montane wet and Bohm 1997, p. 284; Wood 2006, p. individuals along Koaie Stream, and 3 ecosystems at elevations between 3,380 11; TNCH 2007). Lysimachia venosa individuals on the ridge between Hulua and 3,480 ft (1,030 and 1,060 m) was known historically from two and Kapalaoa. The population in (Wagner et al. 1999, p. 943; HBMP 2007; collections in the early 1900s from the Lumahai Valley is estimated to be NTBG Accession Data 9888, 2002; Waialeale summit region of Kauai (Marr approximately 100 to 200 individuals; TNCH 2007). Myrsine mezii is known and Bohm 1997, p. 284; Wagner et al. however Bender (2006, p. 7) estimated from only two locations totaling five 1999, p. 1,085; HBMP 2007). In 1991, a that there may be a total of 500 individuals, in the Koaie Canyon area of broken branch of this species was individuals (Wood 1998, p. 4; Stone et western Kauai (N. Tangalin 2007b). Four collected from the headwaters of the al. 1999, p. 1199; Wagner and Herbst trees comprise one population at Wailua River that had fallen from the 2003, p. 45; HBMP 2007). Nawaimaka, and the second known cliffs above, possibly from the summit Melicope puberula (alani) is a shrub occurrence at Kawaiiki is composed of area of Waialeale (Wood 2006, p. 11; or small tree in the rue family a single tree in poor condition (N. Marr and Bohm 1997, p. 284). While no (Rutaceae) that occurs in the lowland Tangalin 2007b). The population size plants were found during surveys of the wet and montane wet ecosystems in wet has not changed in the last 10 years, and summit area in 2006, there is still forest and bogs at elevations ranging historical locations and numbers are additional habitat to be surveyed, and between 2,080 and 4,100 ft (634 and unknown. species experts believe L. venosa still 1,250 m) (Stone et al. 1999, p. 1202; Phyllostegia renovans, a subshrub in exists (S. Perlman 2007; Wood 2006, p. HBMP 2007; TNCH 2007). Historically, the mint family (Lamiaceae), occurs at 11). M. puberula was known from the Alakai elevations from 2,700 to 3,700 ft (225 to Melicope degeneri (alani) is a small Swamp on the island of Kauai (St. John 1,125 m) in Metrosideros polymorpha shrub or tree in the rue family 1944b, p. 266). Currently, this species is wet forest in the lowland wet and (Rutaceae) that occurs in the montane known from the south rim of Kalalau montane wet ecosystems (HBMP 2007; wet ecosystem in Metrosideros- east to the Alakai-Kilohana plateau area, TNCH 2007). First discovered in 1989 in Cheirodendron-Dicranopteris wet forest and north into Hono o Na Pali NAR the headwaters of the Wainiha River, between the elevations of 3,000 and (HBMP 2007). The Hawaii Biodiversity this species is currently known from 6 3,800 ft (914 and 1,158 m) (Stone et al. and Mapping Program delineated these populations: approximately 30 1999, p. 1186; HBMP 2007; TNCH three areas as one population (referred surviving individuals reintroduced into 2007). Melicope degeneri was thought to to as the Kalalau-Wainiha population) Limahuli Valley after the last wild be extinct until it was rediscovered in (HBMP 2007). In 1993, a single individual from that area died, 23 Pohakuao, just beyond the northwest individual was observed near Hinalele individuals at Wainiha, 10 individuals corner of the Hono o Na Pali NAR, in Falls in the southern portion of the at Kalalau Valley, 1 individual in 1993 (Wood 2000, p. 6), and Wainiha Mountain Range (HBMP 2007). Lumahai Valley, 1 individual at subsequently observed in upper The largest population occurs in the Kapalaoa, and 1 individual at the Hanakoa in 1995 and along Koaie Alakai-Kilohana Plateau area with headwaters of Kamooloa Stream (K. Stream in 1999 (NTBG Accession Data approximately 600 individuals. About Wood 1994, p. 4; Wagner 1999, p. 275;
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HBMP 2007, D. Burney, NTBG, pers. individuals of P. hardyi to shrubland, at elevations between 3,550 comm. 2009). approximately 300. and 4,100 ft (1,082 and 1,250 m) Pittosporum napaliense (hoawa) is a Psychotria grandiflora (kopiko) is a (Wagner and Weller 1991, p. 51; TNCH small tree in the pittosporum family small tree or shrub in the coffee family 2007). One population (Wainiha), (Pittosporaceae) typically found in (Rubiaceae) that occurs in the montane however, is reported between 2,231 and Pandanus and lowland mesic forest in mesic and montane wet ecosystems (K. 2,707 ft (680 and 825 m) elevation the lowland mesic ecosystem, at Wood 2007a; TNCH 2007). It is found in (HBMP 2007). Historically, this species elevations between 400 and 2,100 ft Acacia-Metrosideros mesic to wet forest occurred at Pohakupili near Kealia in (122 and 640 m) (Wagner et al. 1999, pp. between the elevations of 3,400 and the Kealia Forest Reserve on the island 1045–1047; HBMP 2007; TNCH 2007). 4,100 ft (1,128 and 1,250 m) (HBMP of Kauai. Currently, this species occurs Historically, P. napaliense was known 2007). Historically, this species was at Honopu, Kalalau, Malamalamaiki, from northwestern Kauai (Wagner et al. known from collections at Waimea, Pohakupili, and Wainiha. The 5 1999, p. 1047; HBMP 2007). Currently, Kokee, and Kalalau, all from the populations of S. kealiae total this species is known from 3 northwestern area of Kauai (Fosberg approximately 100 to 200 individuals populations; two of which are located 1964, p. 258). Currently, 10 small (HBMP 2007). within the Hono o Na Pali NAR in populations of P. grandiflora are found Tetraplasandra bisattenuata (ohe ohe) Waiahuakua (50 individuals) and only within Kokee State Park, and are is a tree in the ginseng family Hoolulu valleys (100 individuals), with estimated to total between 16 and 30 (Araliaceae), which occurs in lowland the third population (10 to 50 individuals (Arnold 2007, pp. 1–3; mesic to wet forest and shrubland in the individuals) located in upper Kalalau HBMP 2007; S. Perlman 2007d; N. lowland mesic and lowland wet Valley in the Na Pali Coast State Park Tangalin 2007c). ecosystems at elevations between 1,800 (HBMP 2007). Psychotria hobdyi (kopiko) is a tree in and 2,000 ft (550 and 610 m) (TNCH the coffee family (Rubiaceae) that occurs Platydesma rostrata (pilo kea lau lii) 2007; Wood 2007f, pp. 1–5). This in lowland Acacia koa-Metrosideros is a shrub in the rue family (Rutaceae). species is known only from the Haupu polymorpha mesic forest in the lowland It occurs in the lowland mesic, lowland and Kahili regions of Kauai. Currently, mesic ecosystem at elevations between wet, wet cliff, montane mesic, and 35 individuals are found at Mt. Haupu 1,700 and 2,700 ft (520 and 825 m) montane wet ecosystems, in forest and 2 individuals are at Mt. Kahili (Wagner et al. 1999, pp. 1166–1168; (Wood 2007f, p. 1). dominated by Acacia koa and HBMP 2007; TNCH 2007). The first Metrosideros polymorpha, at elevations Tetraplasandra flynnii (ohe ohe) is a collection of P. hobdyi was made in tree in the ginseng family (Araliaceae) between 2,500 and 4,000 ft (760 and Mahanaloa Valley on Kauai in 1970 (St. 1,220 m) (Stone et al. 1999, p. 1210; found in Metrosideros polymorpha John 1975, p. 59). Currently, this species (ohia) montane mesic to wet forest in HBMP 2007; TNCH 2007). Platydesma is known from 10 populations totaling rostrata was historically known from the lowland wet, montane mesic, and approximately 120 individuals in the montane wet ecosystems, at elevations Makaha and Milolii ridge in the Na Pali following locations: 1 population of 2 Kona Forest Reserve, and Kaunuohua between 2,600 and 4,000 ft (793 and individuals in Kawaiula Valley; 1 1,225 m) (Lowry and Wood 2000, p. 42; ridge and Nualolo trail in Kokee State population of approximately 5 Park, on the island of Kauai (HBMP HBMP 2007; TNCH 2007). Three individuals at the junction of individuals of T. flynii were first 2007). Currently, this species is found in Mahanaloa Valley and Kuia Valley; 3 the Na Pali Kona Forest Reserve on the discovered in 1988 near Kahuamaa Flat populations totaling approximately 47 in Kokee State Park, and two more Awaawapuhi and Honopu trails; in individuals in Mahanaloa Valley; 2 Halelea Forest Reserve at Lumahai; in individuals were found in the late 1990s populations of 17 to 22 individuals in at Kapalaoa-Kamooloa (Lowry and Hono o Na Pali NAR at Pihea; in Kunia Paaiki Valley; 2 populations of NAR on the Nualolo Trail; in Mahanaloa Wood 2000, pp. 40 and 43; HBMP 2007; approximately 39 individuals in D. Burney, pers. comm. 2009). and Kuia valleys; and in the Lihue- Poopooiki Valley; and 1 population in Koloa Forest Reserve at Pohakupele, upper Kalalau Valley of approximately Animals Hulua, Kapalaoa, and Iliiliula Valley 10 individuals (HBMP 2007). Akikiki (HBMP 2007). These small populations Schiedea attenuata, a shrub in the total approximately 100 individuals pink family (Caryophyllaceae), occurs The Kauai creeper or akikiki (HBMP 2007). on cliffs at elevations between 2,297 and (Oreomystis bairdi), is a small Hawaiian Pritchardia hardyi (loulu) is a tree in 2,625 ft (700 and 900 m) in the dry cliff honeycreeper found only on the island the palm family (Arecaceae) that occurs ecosystem (Wagner et al. 1994, pp. 187– of Kauai, currently in the montane in the lowland wet and wet cliff 190; TNCH 2007). Schiedea attenuata mesic and montane wet ecosystems ecosystems (Read and Hodel 1999, p. was discovered in 1991 by K. Wood (TNCH 2007; E. VanderWerf, pers. 1370; TNCH 2007). It is found in during a rappel on the cliffs in an area comm. 2009). The Hawaiian Metrosideros-Dicranopteris wet forest of precipitous slopes above the Kalalau honeycreepers are in the subfamily and shrubland and on windswept Valley on Kauai. Approximately 20 Drepanidinae of the finch family, windward ridges and headwater individuals were last observed there in Fringillidae (AOU 1998, p. 676). The drainages, at elevations between 1,800 1994 (M. Bruegmann 1994b; Wagner et akikiki is most common in forests and 3,400 ft (548 and 1036 m) (Read and al. 1994, p. 187; Wagner et al. 2005, pp. dominated by Metrosideros polymorpha Hodel 1999, p. 1370; HBMP 2007). 45–47). with a diverse subcanopy (Scott et al. Historically, P. hardyi was known from Stenogyne kealiae is a trailing or 1986, p. 139). Based on surveys a single population totaling about 200 scandent vine in the mint family conducted from 1968 through 1973, its individuals in an area on the southeast (Lamiaceae) (Wagner and Weller 1991, distribution was thought to encompass (windward) side of Kauai (HBMP 2007). p.51). It occurs in the dry cliff, lowland 21,750 ac (88 sq km) at elevations An additional population totaling about wet, and montane mesic ecosystems, in between 1,968 and 5,248 ft (600 and 100 individuals was found north of that Metrosideros polymorpha forest, M. 1,600 m), but a survey in 2000 indicated area (NTBG Provenance Report 040094), polymorpha-Acacia koa forest, and M. its distribution had decreased to 8,896 bringing the total number of known polymorpha-Dicranopteris linearis ac (36 sq km) (Scott et al. 1986, p. 141;
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Tweed et al. 2005, pp. 3–4). The akikiki p. 136) and common ‘‘over a large part montane wet ecosystems at elevations generally forages on trunks, branches, of the high plateau’’ in the late 1800s generally between 3,000 and 3,936 ft and twigs of live and dead trees, and (Perkins 1903, p. 417), and probably (914 and 1,200 m), although the species occasionally forages in subcanopy occurred throughout upper elevation was historically found as low as 2,460 shrubs. It feeds primarily on insects, forested regions of the island (Perkins ft (750 m). Like most picture-wing flies, insect larvae, and spiders gleaned and 1903, p. 417). Richardson and Bowles the adult flies are believed to be extracted from bark, lichens, and moss (1964, p. 30) reported that it was fairly generalist microbivores (microbe eaters) (Foster et al. 2000, p. 4). Nests are made common in higher elevation forests. and feed upon a variety of decomposing of moss, small pieces of bark, bits of Conant et al. (1998, p. 16) reported that plant material. The host plants for D. lichen, and fine plant fibers (Eddinger the akekee was common in the area sharpi are unknown, but Montgomery 1972, p. 673; Foster et al. 2000, p. 7; around Sincock’s Bog in 1975 and (1975, p. 99) has determined that its VanderWerf and Roberts, 2008, pp. 195- observed it daily. The first quantitative sibling species, D. primaeva, lays its 199). The akikiki was considered information on population size and eggs within the decomposing bark of common from high to low elevation in distribution was based on extensive native Cheirodendron sp. (olapa) and native forests in the late 1800s (Perkins surveys conducted from 1968 to 1973, Tetraplasandra sp. trees (both in the 1903, p. 54), and was described as which yielded an island-wide family Araliaceae), where the hatching locally abundant on and near the Alakai population estimate of 5,066 ± 840 larvae complete development before Plateau in the early 1960s (Richardson birds, with most individuals found in dropping to the soil to pupate and Bowles 1964, p. 29). From 1968 to the Alakai Plateau area, west to Kokee, (Kaneshiro and Kaneshiro 1995, p. 14). 1973, the species was estimated to and on Makaleha Mountain and in For this reason, the host plants for D. number 6,832 ± 966 birds (Sincock et al. Wainiha Valley (Sincock et al. 1983, p. sharpi are believed to be species of 1983, p. 53). In 1981, data from the 53). This was followed by population native Cheirodendron and Hawaii Forest Bird Survey indicated estimates of 7,839 ± 704 birds in 2000, Tetraplasandra. there were approximately 1,650 ± 450 and 5,669 ± 1,003 birds in 2005 (Hawaii Drosophila sharpi was first collected akikiki in a 9.7 sq mi (25 sq km) area Division of Forest and Wildlife and by Perkins in 1895 at ‘‘Koholuamano,’’ a of the southeastern Alakai, in the USGS, unpubl. data 2007). The most location that is unknown today but is vicinity of Sincock’s Bog (Scott et al. recent surveys, conducted in April and believed to be on the Alakai plateau 1986, p. 141). The current population of May 2007, show the current population (Grimshaw 1901, p. 65). Drosophila the akikiki is estimated to be 1,312 ± of akekee to be 3,536 ± 1,030 birds sharpi was historically known from two 530 birds, based on surveys conducted (Hawaii Division of Forest and Wildlife populations on the island of Kauai: one in April and May 2007 (DOFAW and and USGS, unpubl. data 2007), population south of the Alakai massif at U.S. Geological Survey (USGS), unpubl. indicating that the population has Mt. Kahili where 19 males and 13 data, 2007). The abundance of the dropped to less than half its former size females were observed (Hardy and akikiki has thus declined by within the last 7 years. The geographic Kaneshiro 1969, p. 41; Kaneshiro and approximately 80 percent in the last 40 range occupied by the akekee was Kaneshiro 1995, p. 13; HBMP 2007), and years, and its distribution has been approximately 34 sq mi (88 sq km) in a second population on the western end reduced to less than half of its former 1970 (Scott et al. 1986, p. 155), which of the Alakai Swamp in the Na Pali extent. was reported not to have changed in Kona Forest Reserve at Pihea (K. 2000 (Foster et al. 2004, p. 721). Kaneshiro, pers. comm. 2007). We have Akekee However the 2007 surveys failed to find no information regarding any The Kauai akepa or akekee (Loxops the species in many areas where it had observations of this species at Mt. Kahili caeruleirostris), is a small forest bird previously been observed, indicating since 1969. The species was also found only on the island of Kauai. Like that there has likely been a range collected at two other locations: at the akikiki, the akekee is also a contraction, although the extent of that Mohihi Stream located within the Hawaiian honeycreeper in the subfamily contraction is not yet known. Alakai Wilderness Preserve in 1963, and Drepanidinae of the Fringillidae family at the Kokee Stream within Kokee State (AOU 1998, p. 677). The akekee occurs Drosophila sharpi Park in 1991 (Kaneshiro and Kaneshiro in the montane mesic and montane wet In our October 21, 2008, proposed 1995, p. 14). Observations of D. sharpi ecosystems in forests dominated by rule, we proposed to list Drosophila at the Pihea site have been somewhat Metrosideros polymorpha, Acacia koa, attigua as endangered in accordance sporadic, as the species has been Cheirodendron trigynum, and C. with the taxonomic treatment of Hardy observed there only three times, once platyphyllum (Lepson and Pratt 1997, p. and Kaneshiro (1969, p. 41). Following each in 1986, 1987, and most recently 4; TNCH 2007). The akekee uses its bill publication of our proposal, one of our in 1991, despite numerous surveys to open flower and leaf buds while peer reviewers, Karl Magnacca, Trinity (HBMP 2007; K. Kaneshiro, pers. comm. foraging for arthropod prey (insects, College, Dublin Ireland, informed us of 2007; K. Magnacca, Trinity College, insect larvae, spiders), and is a a recent taxonomic revision in which D. pers. comm. 2007). specialist on the ohia tree (M. attigua was found to be identical to, and polymorpha) (Lepson and Pratt 1997, p. was synonymized with, D. sharpi, a Summary of Comments and 4). Nests are made of moss and lichen, species described and published by Recommendations with the nest lining made of fine grasses Grimshaw in 1901 (Grimshaw 1901, p. On October 21, 2008, we published a and soft bark strips (Eddinger 1972, p. 65; Magnacca and O’Grady 2008, p. 55). proposed rule to list these 48 Kauai 97; Berger 1981, p. 140; Lepson and For this reason, the synonymy of D. species as endangered throughout their Freed 1997, pp. 11–12). Until recently, attigua with D. sharpi is currently ranges, and to designate critical habitat the population of akekee appeared to be accepted by the scientific community for 47 of these species (73 FR 62592). relatively stable, even while other and by the Service, and is used The comment period for that proposal endemic Kauai birds demonstrated throughout this rule. opened on October 21, 2008, and closed sharp declines (Lepson and Pratt 1997, Drosophila sharpi, a large species of on December 22, 2008. During the p. 14). The akekee was described as Hawaiian picture-wing fly, occurs in comment period, we received 21 ‘‘quite plentiful’’ (Bryan and Seale 1901, wet forest in the montane mesic and comment letters. We did not receive any
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requests for public hearings. Nine marks for the Hawaiian language in the meaningfully with federally recognized comments were from peer reviewers, published rule. Native American tribes on a four were from State of Hawaii agencies, Our response: In this final rule we government-to-government basis and two were from Federal agencies, and six omitted diacritical marks because we identify potential effects on trust were from nongovernmental cannot ensure that they will be printed resources of federally recognized tribes. organizations or individuals. Due to the properly. We recognize the importance Federally recognized tribe means an nature of the proposed rule, we received of using the marks to accurately portray Indian or Alaska Native tribe or combined comments from the public on the pronunciation and meaning of community that is acknowledged as an both the listing action and the critical Hawaiian words and regret not being Indian tribe under the Federally habitat; we have therefore addressed able to use them. In a previous proposed Recognized Indian Tribe List Act of these issues in a single comment rule (66 FR 30372, June 6, 2001) we 1994, 25 U.S.C. 479a. In the list section. attempted to use Hawaiian language published annually by the Secretary, Eight of the comment letters diacritical marks, but there were there are no federally recognized tribes supported the listing and designation of numerous conversion errors and the in the State of Hawaii (73 FR 18553, critical habitat for the Kauai species. Of marks were not printed correctly. In our April 4, 2008). Therefore, while we the other 13 comments, 12 provided published correction to that proposal value information on the effects of this information or declined to oppose or (66 FR 46428, September 5, 2001) we rule on the interests of Native support the listings and critical habitat stated that we would either ensure that Hawaiians, Native Hawaiian lands are designation, and 1 opposed the listing of the marks are used correctly or not tribal lands for purposes of the the picture-wing fly. One commenter eliminate their use altogether. Current requirements of the President’s requested that we exclude 2,795 ac printing constraints have forced us to Memorandum or the Department (1,131 ha) (representing portions of 6 choose the latter option. Manual. (2) Comment: One peer reviewer different critical habitat units) based on commented that the Federal Register Peer Review Comments on Threats and the benefits of ongoing conservation was a bit obscure for the general public Listing the Kauai Species activities on private land. We reviewed and that the U.S. Fish and Wildlife (4) Comment: One peer reviewer all comments received for substantive Service should publish notices of stated that if Factor A (the present or issues and new information regarding upcoming Federal Register documents threatened destruction, modification, or the proposed listing and critical habitat in the local newspapers. curtailment of habitat or range) is designation for the Kauai species. We Our response: The publication of our identified as a primary threat have fully considered all substantive rules and notices related to listing and attributable to pigs, goats, or deer in comments in this final rule. critical habitat in the Federal Register is Table 2, which summarizes the primary Peer Review required by section 4(b)(5)(A)(i) of the threats identified for each of the 48 Act and the Administrative Procedure Kauai species, predation by ungulates In accordance with our policy Act (5 U.S.C. Subchapter II); however under Factor C (disease or predation) published on July 1, 1994 (59 FR section 4(b)(5)(D) of the Act requires should also be identified as a primary 34270), we solicited expert opinions that we publish a summary of the threat attributable to those animals. from 24 knowledgeable individuals with proposed regulation in a newspaper of Our response: We have persuasive scientific expertise on the 48 Kauai general circulation in each area of the evidence that feral ungulates species and their habitats, including United States in which the species is substantially modify or destroy habitat; familiarity with the species, the believed to occur. Our practice is to however, we can only occasionally infer geographic region in which the species publish this newspaper notice within 20 that they consume parts of or entire occurs, and conservation biology days of publication of the proposed rule. plants or animals based on indications principles. We received responses from This allows for publication of the of their presence. A study conducted in nine peer reviewers; eight comments newspaper notice before the 45–day the 1980s on the feeding habits of feral generally supported our methodology time limit for requesting public hearings pigs on Maui found that their rooting and conclusions; five comments has expired and provides ample time for was related to foraging for earthworms. supported the listing and designation of readers to provide comment. In In that study, rooting depths averaged 8 critical habitat for the Kauai species; accordance with this practice, we in (20 cm), greatly disrupting the leaf three comments provided new published notices of this proposed litter and topsoil layers, which information on one or more of the 48 regulation in the following local contributed to erosion and changes in species; and one comment did not newspapers: Honolulu Advertiser ground topography (Diong 1982, pp. support the listing and designation of (Oahu) (October 27, 2008), Garden 150, 164–165). While foraging for critical habitat for the picture-wing fly. Island (Kauai) (October 31, 2008), and earthworms, feral pigs may uproot and We summarize the peer reviewers’ Star Bulletin (Oahu) (November 5, dislodge plants, contributing to habitat comments below, and we took them into 2008). degradation of understory vegetation consideration in developing this final (3) Comment: One peer reviewer was (Factor A), but they may not feed rule. uncertain whether ‘‘tribal lands’’ as directly on plants that are disturbed by We have categorized the peer review referred to in the ‘‘Government-to- their activity. Where we have direct comments and our responses by: (1) Government Relationship with Tribes’’ confirmation or evidence of predation Those that are general in nature; (2) section of the proposed rule were the by feral ungulates on a particular those related to threats and the same as native Hawaiian lands. species, it has been identified as a threat proposed listing of the species, and (3) Our response: The President’s under Factor C in Table 2. those related to the proposed Memorandum of April 29, 1994, designation of critical habitat. Government-to-Government Relations Peer Reviewer Comments-Akekee and with Native American Tribal Akikiki General Peer Reviewer Comments Governments, and the Department of (5) Comment: One reviewer (1) Comment: One peer reviewer Interior’s Manual at 512 DM 2, set forth commented that the use of puaiohi suggested that we publish diacritical our responsibility to communicate (Myadestes palmeri) as a surrogate
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species is somewhat inappropriate, and akekee in this final rule. The biology of levels of Culex mosquitoes, which are a that the Maui creeper (Paroreomyza the akikiki has been little studied and disease vector for avian pox and montana), the Hawaii akepa (Loxops predation on adults and nests has not malaria. coccineus coccineus), or both would been documented, but several Our response: In Hawaii, the represent better surrogate species. introduced mammals known to be major mechanisms of avian disease Our response: We believe the puaiohi, predators on Hawaiian forest birds are transmission include movements of an endangered bird that inhabits the present in the Alakai swamp on Kauai, mosquitoes infected with avian disease same areas on Kauai as the akikiki and where akikiki occur (Tweed et al. 2006, from lower to higher elevations, as well akekee, is an appropriate surrogate p. 759). Black rats (Rattus rattus), as mosquitoes breeding in pig wallows species for akikiki and akekee when Polynesian rats (R. exulans), Norway and along stream margins at higher considering threats of predation by rats rats (R. norvegicus), feral cats (Felis elevations. Mosquitoes that breed in and owls (see below). The puaiohi nests catus), the native short-eared owl (pueo, forest bird habitats may become infected primarily on cliff faces and utilizes Asio flammeus sandwichensis), and the by biting infected birds, continuing the habitat along stream margins more so introduced barn owl (Tyto alba), are disease transmission cycle. The relative than the akikiki and akekee. However, known to prey on forest passerines contribution of mosquitoes breeding in the puaiohi is exposed to predation (Snetsinger et al. 1994, p. 47). Long-term pig wallows versus along stream pressures from introduced mammalian protection of many Hawaiian birds, margins with regard to mosquito vector and avian predators in a manner similar including the akikiki and akekee, likely prevalence on Kauai is unknown. to that expected for akikiki and akekee, will require large-scale management Investigating this uncertainty and since they occur in the same habitat actions to control nonnative predators, developing effective management areas on Kauai. Although we do not including rats and feral cats. actions will be identified as a priority have direct evidence of rat predation on (8) Comment: One peer reviewer task during the recovery planning the akekee or akikiki from nest studies, commented that the nonnative yellow- process. we believe it is reasonable to assume jacket wasp (Vespula pensylvanica) is a Peer Reviewer Comments-Drosophila that birds nesting in the same area as the threat to the akikiki and akekee, as it sharpi (D. attigua in the proposal) puaiohi would likely be exposed to presents significant competition for similar impacts from rat predation. arthropod food (e.g., insects, insect (10) Comment: One peer reviewer (6) Comment: One commenter noted larvae, and spiders). commented that the proposed rule does that both bird species would benefit Our response: The nonnative yellow- not present independent data or from ungulate removal throughout their jacket wasp may impact the akikiki and assumptions with which to evaluate habitat, which would reduce threats akekee through competition for the risks to Drosophila sharpi, nor credible presented by the spread of invasive same native insect food resources, scientific evidence that the species is or plants and avian disease transmitted by although we have no direct evidence in is not endangered. mosquitoes. this regard. Both the akikiki and akekee Our response: We disagree. Since Our response: Feral ungulates (pigs, feed primarily on insects, insect larvae, 1963, a multidisciplinary team of goats, black-tailed deer) on Kauai and spiders (Lepson and Pratt 1997, p. biologists has been researching present a significant threat to the six 4; Foster et al. 2000, p. 4). Each yellow- Drosophila as part of the University of ecosystems addressed in our proposed jacket wasp colony in Hawaii can Hawaii-affiliated Hawaiian Drosophila rule and their associated native species, produce over a half-million foragers that Project. Over 500 scientific papers have including the akikiki and akekee. The consume tens of millions of arthropods, been published as a result of this presence of nonnative feral ungulates is including native insects, larvae, and program, and over 500 species of considered to be a primary factor in the spiders (Gambino and Loope 1992, p. Drosophila have been taxonomically alteration and degradation of native 19). Controlling or eliminating negative described. The information we relied on vegetation and habitats throughout the effects associated with resource to prepare this rule included peer Hawaiian Islands. Each of our recovery competition with yellow-jacket wasps is reviewed publications, unpublished plans for species that occur in identified as a recovery action in our literature, and other communications ecosystems similar to the six identified Revised Recovery Plan for Hawaiian from research and field studies covering in this final rule recommend ungulate Forest Birds (USFWS 2006, p. 4–4, 4– a period of over 40 years of Hawaiian control, fencing, or both as a priority 85). The akikiki is one of the bird Drosophila research. This final rule is tasks necessary to conserve native species included in this recovery plan, also based on new information that was Hawaiian plant and animal species. although it was only a candidate for obtained in response to the publication (7) Comment: One reviewer listing at the time the plan was written. of the proposed rule. Systematic surveys commented that although rats and cats Although the akekee is not specifically for the picture-wing fly species and host are important predators for some covered by the plan, the recovery plants would assist with understanding Hawaiian bird species, there is no data actions identified in the Revised population trends and status. However, to suggest that either are major threats Recovery Plan for Hawaiian Forest Birds as required by section 4(b)(1)(A) of the to the akikiki or akekee. should benefit all native forest bird Act, we have relied on the best scientific Our response: Rats and cats have been species in the Hawaiian Islands since all and commercial data available on identified as significant predator threats of these birds face similar threats, habitat threats and trends in distribution to other Hawaiian forest bird species regardless of whether they were listed at for the species in making our (also see our response to comment 28). the time the recovery plan was determination in this final rule. Although we do not have direct published. The control of yellow-jacket (11) Comment: One peer reviewer evidence of rat and cat predation on the wasps is one of those broad recovery stated that surrogate species for akikiki and akekee, we believe these actions that will benefit native forest Drosophila sharpi were not made predators are a potential threat to both bird species beyond those specifically explicit. birds on Kauai for the reasons stated in addressed in the recovery plan. Our response: We have clarified in our October 2008 proposal. We have (9) Comment: One peer reviewer this final rule that our conclusions modified our discussion of rat and cat commented that stream margins, rather regarding adult feeding habits, egg predation threats on the akikiki and than pig wallows, may support higher laying and larval host plant preferences,
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and direct threats are drawn from Protected Species within Each Critical ecosystem. This ecosystem type occurs similar, related species including the 12 Habitat Unit for Kauai) was confusing, below 3,000 ft (1,000 m); contains wet Hawaiian picture-wing flies listed in and that the table caption should grassland, shrubland, and forest; 2006 as endangered or threatened (71 explain the differences between the receives greater than 75 in (191 cm) FR 26835, May 9, 2006). columns. annual precipitation; and has wet (12) Comment: One peer reviewer Our response: We agree. We have substrate conditions. commented that biocontrol agents are clarified the table’s column headings as inappropriately implied to be threats to requested. Peer Reviewer Comments-Plants Drosophila sharpi, that there is even (14) Comment: One peer reviewer (16) Comment: One peer reviewer evidence to the contrary, and that the commented that the designation of commented that Hanakoa Valley should listing of D. sharpi would delay critical habitat does not preclude be included in Lowland Mesic section 3, permitting for new biocontrol agents. management of ungulates for hunting in since Charpentiera densiflora occurs Our response: In the Application of those areas. along the Kalalau trail in that area. the Adverse Modification Standard Our response: We agree. Critical Our response: Although individual section of the proposed rule, we stated habitat designation does not create a Charpentiera densiflora plants may that importing nonnative species for wilderness area, preserve, or wildlife occur in the Hanakoa Valley, the research, agriculture, and aquaculture, refuge. It does not require nor preclude reviewer did not present scientific data and releasing biological control agents, activities associated with conservation that we could evaluate to determine may adversely affect critical habitat. management such as ungulate control whether this area includes the physical Under Factor C (Disease or Predation), and fencing. Game bird and mammal and biological features essential to the we also stated that parasites have been hunting is a recreational and cultural conservation of the species. Based on purposefully imported and released in activity in Hawaii that is regulated by our field observations, trail areas are Hawaii since 1865 for biological control the Hawaii Department of Land and typically disturbed by recreational of pests. Between 1890 and 2004, 387 Natural Resources on State and private activity and dominated by nonnative nonnative species were introduced, lands (Hawaii Department of Land and plants. sometimes with the specific intent of Natural Resources 2002). Critical habitat (17) Comment: One reviewer stated reducing populations of native does not give the Federal government that species’ previous range is not Hawaiian insects (Funasaki et al. 1988, authority to control or otherwise sufficiently understood, and that pp. 109–110, 143; Lai 1988, pp. 180, manage feral animals on non-Federal historical and paleoecological 186; Staples and Cowie 2001, pp. 41, land. These land management options information indicates that many rare 54–57). Nonnative arthropods present a continue to be landowner decisions, and plant species on Kauai had much larger serious threat to Hawaii’s native absent Federal involvement, are not ranges, often in a wide array of habitats. Drosophila, both through direct affected by the designation of critical This reviewer acknowledged that the predation or parasitism as well as habitat. However, the designation of areas proposed as critical habitat were competition for food and space critical habitat does impose a good choices, and recommended that (Howarth and Medeiros 1989, pp. 82– responsibility on Federal agencies to the Service focus funding and 83; Howarth and Ramsay 1991, pp. 80– consult with us under section 7 of the protection efforts on the proposed areas 83; Kaneshiro and Kaneshiro 1995, pp. Act on actions they carry out, fund, or rather than proposing additional areas 41–45; Staples and Cowie 2001, pp. 41, authorize that might destroy or as critical habitat. 54–57). We are aware that compliance adversely modify critical habitat. This Our response: More research is with regulations that apply to the requirement applies to funding needed to better understand the species’ introduction of biological control agents provided by the Service to the State historical range. In our proposed rule, may seem complicated to some because through the Federal Aid in Wildlife we presented the criteria used to of combined Federal and State Restoration Program (Pittman-Robertson identify critical habitat boundaries (73 jurisdiction. However, absent a high Program). It is well-known that game FR 62622, October 21, 2008), which level of assurance that only safe and mammals affect listed plant and animal were based on the best scientific and effective biological control agents are species in Hawaii. We believe it is commercial data available, including introduced, nontarget impacts and host important to develop and implement current and historical species’ location switching could occur (Simberloff and management programs that provide for information. Surveying historical Stiling 1996, pp. 185, 190). We the recovery of listed species and habitat and adjacent, potentially acknowledge the importance of acknowledge the importance of suitable habitat will be a high priority biocontrol as a way to control some continued ungulate hunting in game during the recovery implementation nonnative species in Hawaii, management areas. We welcome process for these species. We particularly nonnative invasive plants opportunities to work closely with the acknowledge that critical habitat that threaten rare native plants through State and other partners to ensure that designated at a particular point in time competition for space, light, water, and game management programs are may not include all of the areas that nutrients, and by degrading and implemented in a manner consistent may later be determined to be necessary destroying native habitat. We are with both of these needs. for the recovery of the species, as new committed to working closely with the (15) Comment: One peer reviewer information becomes available. For this State and other Federal agencies to commented that Lowland Wet section 6 reason, a critical habitat designation ensure that potential biocontrol may be within the montane, rather than does not signal that habitat outside the measures are implemented in a manner the lowland, ecosystem. designated area is unimportant or may consistent with the conservation needs Our response: We followed TNC’s not promote the recovery of the species. of these species. Ecoregional Assessment of the Hawaiian High Islands (2006) and ecosystem maps Peer Reviewer Comments-Akekee and Peer Review Comments on Critical (TNCH 2007) to define ecosystem Akikiki Habitat Designation boundaries in this rule. Following that (18) Comment: New survey data for (13) Comment: One peer reviewer approach, the proposed Lowland Wet the akikiki and akekee is currently being commented that Table CDLVI (Table of section 6 falls within the lowland wet analyzed by the U.S. Geological Survey-
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Biological Resources Discipline (USGS- Based on their study, they predict that (USFWS 2006, pp. 4–96, 4–118), BRD). over the next 100 years, the high although for the purposes of designating Our response: We are aware that elevation forest areas that currently critical habitat we have to rely on the recent survey data has been analyzed by serve as a refuge for the birds from best scientific data available in the USGS-BRD and is undergoing mosquito-borne malaria may decrease in accordance with section 4(b)(2) of the agency review for publication (Camp et size by as much as 85 percent. The Act. al. in press). Information from Camp et authors predict that preventing avian (23) Comment: Two commenters al. (in press) that was provided during malaria will become the main suggested that critical habitat include all the public comment period indicated conservation focus for Hawaiian forest areas where the akikiki and akekee are that montane mesic habitat proposed as birds, including the akikiki and akekee. known to occur, which would extend critical habitat for the akekee, several Atkinson et al. (2009, pp. 58-59) states into areas delineated for the recovery of plants, and Drosophila sharpi is also that without question, the one factor these species, and that critical habitat occupied by the akikiki and contains the that prevented widespread and rapid for the akikiki should include the physical and biological features extinction of virtually all of Hawaii’s montane mesic ecosystem as well as the essential to its conservation that may endemic and highly susceptible montane wet ecosystem, although the require special management honeycreepers after the introduction of literature indicates that the akikiki considerations or protection. Based on avian malaria and pox was the presence presently is more restricted in this new information, we have added of significant altitudinal gradients on distribution than the akekee. 2,976 ac (1,204 ha) of additional Kauai, Maui, and Hawaii, where Our response: See our responses to montane mesic habitat as critical habitat susceptible native birds could maintain comments 18 and 19 above. for the akikiki (Oreomystis bairdi Unit high populations in relatively disease- (24) Comment: One peer reviewer was 1-Montane Mesic, Unit 2-Montane free refugia. They also concluded that concerned that the area of designated Mesic, and Unit 3-Montane Mesic). following a projected 2 degree Celsius critical habitat might not be large Since this area was already being (°C) temperature rise resulting from enough to provide an adequate proposed as critical habitat for other global warming, the Alakai Wilderness mosquito buffer to the habitat areas species in the montane mesic Preserve on Kauai would experience an currently occupied by the akikiki and ecosystem, adding the akikiki does not 85 percent loss of forested habitat where akekee should disease be determined to change the configuration or amount of transmission is currently highly be the primary factor in population critical habitat designated in these units. seasonal to conditions where decline. One peer reviewer stated that it (19) Comment: Appropriate habitat for transmission could occur throughout may be useful to expand critical habitat the akikiki and akekee (outside of the year. As new information becomes for akekee to minimize the number of previously surveyed areas) should be available, we may revise the critical smaller isolated habitat patches, thus surveyed for occurrences. habitat designation to address climate providing larger tracts of contiguous Our response: There is a broader change if we determine that additional native forest that are optimal for species distribution for akekee than akikiki, and areas are essential to the conservation of persistence and less likely to provide there have been some detections of the akikiki and akekee. corridors for intrusion of avian disease- individual akekee beyond the (21) Comment: The units should be carrying mosquitoes and invasion by boundaries of the critical habitat expanded so as to be contiguous. nonnative plants. The commenter proposed in October 2008 (Camp et al. Our response: At this time, we believe suggested we expand critical habitat in press, p. 136). However, Camp et al. that the areas designated as critical Unit 2 so that it abuts Units 1 and 5, did not present scientific data with habitat in this final rule are sufficient to expand Unit 5 so that it abuts Unit 4, which we could evaluate whether these provide for the conservation of the and expand Unit 3 so that it abuts Unit additional areas include the physical akikiki and akekee. We did not include 4. and biological features essential to the all historical habitat or all areas adjacent Our response: Larger tracts of conservation of the species and are in to occupied habitat. The peer reviewer contiguous forest habitat may slow need of special management. In our did not present scientific data, which upslope movements of disease-carrying Revised Recovery Plan for Hawaiian would be needed to evaluate whether mosquitoes into areas occupied by Forest Birds (USFWS 2006, pp. 4–7, 4– these additional areas are occupied and akikiki and akekee by reducing the 118), we state that surveys of potentially contain the physical and biological nonforest-forest boundary along which suitable habitat for the akikiki and features essential to the conservation of mosquitoes travel or are transported by akekee are a priority recovery action for the species or whether the areas need prevailing winds. Contiguous forest these forest birds. In accordance with special management considerations or conditions potentially reduce the section 4(b)(2) of the Act, we may also protection, or if unoccupied, are availability of a transmission vector for revise designated critical habitat based essential to the conservation of the avian disease (Reiter and LaPointe 2007, on new information, if appropriate. species. We could not conclude from pp. 865–867). On Kauai, the (20) Comment: The proposed critical the available data whether or not the mechanisms for avian disease habitat may not be sufficient for the previously occupied areas currently transmission appear to differ in some long-term survival of the species, support, or even could support in the respects from transmission on other especially given the impact of global future, the physical and biological high Hawaiian Islands. Avian disease climate change. features essential for the conservation of transmission vectors on Kauai likely Our response: The impact of climate the species. include windblown movements of change on the distribution of the akikiki (22) Comment: Additional studies are mosquitoes from lower into higher and akekee is a potential concern, but needed regarding breeding, survival, elevations, as well as mosquitoes that the specific effects of climate change are and habitat needs of the akikiki and breed in pig wallows and along stream difficult to predict with confidence. akekee. margins (Baker 1975, pp. 75–76; Benning et al. (2002, pp. 14248–14249) Our response: We agree. These studies LaPointe 2008, pp. 605–607). Since the analyzed the possible contraction of are identified as priority recovery avian disease mechanisms are not habitat for Hawaii’s forest birds, using actions for forest birds in the Revised completely understood on Kauai, the Hawaii, Maui, and Kauai as models. Recovery Plan for Hawaiian Forest Birds benefits that would result from
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expanding critical habitat to establish for Drosophila primaeva, a sibling no direct evidence of predation specific larger buffer areas to reduce avian species to D. sharpi (Montgomery 1975, to akikiki or akekee by either the pueo disease transmission are uncertain. p. 99; Kaneshiro and Kaneshiro 1995, p. or the barn owl, so it is not possible to Investigating this uncertainty will be a 14). Cheirodendron spp., and to a lesser compare the potential levels of priority during the recovery extent Tetraplasandra ssp., are known predation between these two predators. implementation process (USFWS 2006, to be widespread components of the (28) Comment: Two commenters pp. 4–62, 4–68–82). native Metrosideros (ohia) forest, stated that predation by feral cats is a especially the lowland wet, montane threat to the akikiki and akekee, Peer Reviewer Comments-Drosophila mesic, and montane wet communities including areas outside of the Alakai sharpi (D. attigua in the proposal) (Anderson et al. 1992, pp. 308–309; Preserve, and that emphasis should be (25) Comment: One peer reviewer Gagne and Cuddihy, 1999, pp. 88, 90, placed on developing effective methods commented that Lowland Wet section 6, 91, 98, 102–107), where D. sharpi to control predation, with funding and south of the Alakai massif, should be occurs. Our analysis of criteria used to support for active management. designated as critical habitat for the identify critical habitat boundaries Our response: We do not have direct Hawaiian picture wing fly, since the included island-wide GIS coverage (e.g., evidence of feral cat predation on the type specimens for Drosophila sharpi Gap Analysis Program (GAP) vegetation akikiki and akekee, but believe they are were collected at Mt. Kahili. data (2005)), which reflects the spatial a potential threat for the reasons stated Our response: Information from our distribution of native plants such as in our October 2008 proposal. The long- files indicates that historically Cheirodendron and Tetraplasandra. We term protection of many Hawaiian birds, Drosophila sharpi was known from two are unaware of any scientific or including the akikiki and akekee, will areas on Kauai, and was first collected commercial data on the abundance and likely require large-scale control of at Kahili, east of the Alakai massif. distribution of these plant species on nonnative predators, including feral Although new information provided by Kauai, but agree that further research is cats. This management need is one peer reviewer indicates the 1968 needed to determine the specific larval identified as a high priority in the type collections were made at Mt. host species of Drosophila sharpi. Revised Recovery Plan for Hawaiian Kahili, south of the Alakai massif, we Forest Birds (USFWS 2006, pp. 2–161, have no information with which we can Public Comments-Akekee and Akikiki 4–3, 4–52). See also our response to evaluate whether these additional areas (27) Comment: Two commenters comment 7 for additional discussion of contain the physical and biological suggested that a distinction be made this issue. features essential to the conservation of between the threat of predation on the (29) Comment: One commenter stated D. sharpi that require special akikiki and akekee by the native owl, that the best scientific evidence management considerations or pueo, and the introduced barn owl. indicates that the akikiki and the akekee protection. Although these areas may Our response: While the threat of each should be included in both the contain species of Cheirodendron and predation on Hawaiian forest birds by montane wet and montane mesic Tetraplasandra, the purported larval the pueo and the introduced barn owl ecosystems; that critical habitat should host plants, we were unable to conclude has been documented by several authors be designated for each of them in both from the available data whether the (Snetsinger et al. 1994, p. 47; Snetsinger ecosystems; and the boundaries of some previously occupied areas south of the et al. 2005, pp. 79–80; Mounce 2008, units do not make biological sense for Alakai massif support or could support pp. 19–21), there are no direct the two bird species and do not appear the physical and biological features observations or studies specifically to agree with descriptions of where the essential for the conservation of D. related to the akikiki or the akekee. primary constituent elements occur. The sharpi. Surveying historical habitat sites Snetsinger et al. (1994, p. 4) reported a commenter also stated that the recovery and adjacent potentially suitable habitat higher incidence of bird remains in area identified for the akikiki in the for extant populations of D. sharpi and pueo pellets than in barn owl pellets, Revised Recovery Plan for Hawaiian its host plants will be a high priority but suggested that this may be attributed Forest Birds is considerably larger than during the recovery planning process. to prey availability rather than prey the area proposed as critical habitat, and We may consider revising the critical preference. On Kauai, Snetsinger et al. questioned why critical habitat was not habitat designation at that time if new (2005, pp. 79–80) concluded that 10 designated in other areas where the information becomes available percent of puaiohi nest failures may be akikiki or akekee may occur. indicating that these areas are essential due to predation by pueo, based on Our response: We agree that the to the recovery of this species. pueo presence near predated nests. On habitat requirements of the akikiki and (26) Comment: One peer reviewer Maui, Mounce (2008, p. 19) reported akekee are very similar, and critical stated that if the Hawaiian picture-wing two observations of depredation by habitat for the two bird species should fly, Drosophila sharpi, uses pueo on two Maui forest birds, the Maui be the same; in this final rule, we have Cheirodendron spp. (olapa) as a food parrotbill (Pseudonestor xanthophrys) designated critical habitat for the akikiki source, the abundance and distribution and apapane (Himatione sanguinea). and akekee in both the montane wet and of this plant should be noted, and that The author suggested that in Hanawi montane mesic ecosystems (See also our Cheirodendron spp. has not been Natural Area Reserve, pueo may shift responses to comments 18, 19 and 21, specifically identified as a host plant for habitat during honeycreeper breeding above). D. sharpi. seasons in response to this more Under section 3(5)(A) of the Act, Our response: In the proposed rule we abundant and easily captured food, and critical habitat can be designated in stated that the adult flies are generalist therefore, may be more of a threat to areas that were occupied at the time of microbivores (microbe eaters) and feed native birds than previously thought. listing and contain the physical and upon a variety of decomposing plant Such a shift is speculative at this point. biological features essential to the material. Although the larval host plants The pueo is a native predator of forest species’ conservation, and which may for D. sharpi are not specifically known, birds in Hawaii, whereas the native require special management they are most likely to be Hawaiian forest birds have not considerations; or in areas that were Cheirodendron and Tetraplasandra coevolved with the introduced barn unoccupied at the time of listing but species, based on host plant preferences owl. However, as stated above, we have have been determined to be essential to
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the conservation of the species. To two bird species with avian malaria; we change on these 48 species at this time, delineate critical habitat for the akikiki are not designating such areas as critical and conclude that at present we are and akekee, we focused on the physical habitat for the akikiki and akekee. unable to determine the magnitude of and biological features essential to the Section 3(5)(C) of the Act specifies this threat with confidence. Although conservation of those species, which we ‘‘Except in those circumstances climate change may potentially present consider to be the primary constituent determined by the Secretary, critical a threat in the future, we are not listing elements laid out in the appropriate habitat shall not include the entire any of these 48 species as endangered quantity and spatial arrangement for the geographical area which can be based on the threat of climate change conservation of the species. We relied occupied by the threatened or alone. endangered species.’’ The critical habitat on information and data obtained from Federal Agency Comments several sources, including peer designation includes remaining forest reviewers and other qualified areas above the 3,000 ft (914 m) (31) Comment: The U.S. Navy, on individuals familiar with these species elevation, focusing on the Alakai behalf of the National Aeronautics and and ecosystems, to derive the final Wilderness Preserve, as recommended Space Administration, requested that critical habitat designation for the in the Revised Recovery Plan for we exclude the portions of Kokee Sites akikiki and akekee. We also considered Hawaiian Forest Birds. Although there D and E that overlap with the proposed the recovery area recommended for the is limited information available critical habitat. They characterized the akikiki in the Revised Recovery Plan for regarding the habitat needs of the areas as fenced and developed, and Hawaiian Forest Birds (USFWS 2006). akikiki, as acknowledged in the commented that these areas would be The akikiki was a candidate species at recovery plan (USFWS 2006, p. 3-16), unlikely to support any of the 47 species the time of the plan’s publication; the after considering the best available for which critical habitat is proposed. akekee was not addressed in the plan. scientific information we have Our response: We have modified units designated critical habitat for the akikiki Lowland Mesic Section 1 and Montane The Revised Recovery Plan for and the akekee based on providing these Mesic Section 1 (Kokee Sites D and E) Hawaiian Forest Birds states that the species with the physical and biological to exclude areas lacking the physical primary strategy for the recovery of the features essential to their conservation, and biological features (primary akikiki is the protection and in the appropriate quantity and spatial constituent elements) essential to the management of remaining forest on arrangement needed for their conservation of the species, in response Kauai, especially high elevation conservation. However, the Act to the above comment. Manmade montane wet forest above 3,000 to 3,500 provides for the revision of this critical features and structures within the ft (900 to 1,060 m) in the Alakai habitat designation, if new information boundaries of the areas mapped as Wilderness Preserve and surrounding should become available indicating that critical habitat, such as buildings, roads, State and private lands (USFWS 2006, such revision may be appropriate. existing fences, telecommunications p. 3-16). Although much of the equipment towers and associated Public Comments-Listing and Climate designated critical habitat overlaps with structures and equipment, Change the recovery area recommended in the communication facilities and regularly Revised Recovery Plan for Hawaiian (30) Comment: One commenter maintained associated rights-of-way, Forest Birds, we did not find that all of suggested that any predictions about radars, telemetry antennas, paved areas, the recommended recovery area met our climate change and its impacts on these and other landscaped areas, existing on definition of critical habitat in terms of species would not meet the listing the effective date of this final rule do providing the physical and biological standard under section 4 of the Act, nor not contain one or more of the primary features essential for the conservation of the definition of an endangered species constituent elements described for any the species in the appropriate quantity under section 3 of the Act. of the 47 proposed species. Accordingly, and spatial arrangement. For example, Our response: Section 4 of the Act the text of the rule clarifies that these some of the recovery area identified for requires that we determine whether any types of areas are not included in the the akikiki in the recovery plan has a species is an endangered or threatened critical habitat designation, even if they number of residential cabins and other species based on any of the following appear to occur within the boundary of forms of development, resulting in a fair factors: (A) The present or threatened a mapped critical habitat unit. amount of human activity. We destruction, modification, or determined that while the birds may use curtailment of its habitat or range; (B) Comments from the State of Hawaii this area on occasion, it is unlikely to overutilization for commercial, (32) The State of Hawaii Department be utilized by the species to the extent recreational, scientific, or educational of Land and Natural Resources–Land that the features there may be purposes; (C) disease or predation; (D) and Engineering Division and State considered essential to the conservation the inadequacy of existing regulatory Water Commission’s Stream Protection of the species. An additional area, Laau mechanisms; or (E) other natural or and Management Branch reviewed the Ridge, was not included because this manmade factors affecting its continued proposed rule. Neither agency expressed area is too small and isolated to support existence. Climate change may lead to support or concerns with regard to the viable populations of the birds, as changes in the intensity of threats under proposed listing or designation of acknowledged in the recovery plan any of these factors for a species. As critical habitat for the species included (USFWS 2006, p. 3-16), although with any threat, we evaluate each in this rule. another small isolated area, climate-induced factor for specific Namolokama Ridge, was designated as effects and determine the magnitude Other Public Comments critical habitat since it supports several and immediacy of the threat to a species (33) Comment: One commenter stated of the plant species.. Some of the before proposing to list it under the Act. that because we are designating critical recommended recovery area was below In this final rule, we acknowledge that habitat in unoccupied areas, the rule the elevation limit that defines the climate change may be a significant would establish a prohibition against montane wet and montane mesic threat to native species on Kauai, that the adverse modification of critical ecosystems, and hence would harbor we are not capable of determining the habitat under section 9 of the Act where mosquito populations that threaten the specific effects of probable climate one would otherwise not exist.
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Our response: Except as provided in habitat designation under section 4(b)(2) Hawaii (Cuddihy and Stone 1990, pp. sections 6(g)(2) and 10 of the Act, with of the Act. The private landowner is 40, 63–67) and that they present a respect to any endangered species of proactively managing this area in a way primary threat to the native species in fish or wildlife listed under section 4 of that provides conservation benefits for each of the ecosystems described in this the Act, it is unlawful for any person 18 of the 44 plant species, the akikiki final rule, including the 48 species subject to the jurisdiction of the United and akekee, Drosophila sharpi, and addressed in this final rule. The Service States to: several other listed species. The recognizes that the populations of many (A) Import or export any such species excluded area is not already designated game mammal species directly or from the United States; as critical habitat for other species, and indirectly affect the distribution and (B) Take any such species within the we believe that there is a higher abundance of many listed endangered United States or the territorial sea of the likelihood that beneficial conservation plant and animal species to varying United States; activities will continue by not including degrees. We are also aware that game (C) Take any such species upon the this area in the critical habitat mammal hunting is a highly valued high seas; designation. The rationale for activity to a portion of the present-day (D) Possess, sell, deliver, carry, concluding that the benefits of Hawaiian culture, and that hunting is an transport, or ship, by any means exclusion outweigh the benefits of important tool to manage wild game whatsoever, any such species taken in including this area as critical habitat is populations. We support hunting as a violation of (B) and (C) above; discussed in detail in the ‘‘Exclusions recreational activity and hunting (E) Deliver, receive, carry, transport, Under Section 4(b)(2) of the Act’’ section programs within the State of Hawaii. We or ship in interstate or foreign below. However, we considered but did will continue to work in partnership commerce, by any means whatsoever not exclude other proposed lands with the State in this regard, as Federal and in the course of a commercial owned by this private landowner that law requires that hunting programs that activity, any such species; are already designated as critical habitat receive federal funding be designed and (F) Sell or offer for sale in interstate for other species, since we could not implemented in a manner compatible or foreign commerce any such species; conclude that the benefits of excluding with endangered species conservation. or these areas would outweigh the benefits (36) Comment: Two commenters (G) Violate any regulation pertaining of designating them as critical habitat. stated that it appears that critical habitat to such species or to any threatened Designating critical habitat in areas that was designated with a priority given to species of fish or wildlife listed under are already designated as critical habitat plants rather than the akikiki and authority provided under the Act. for other species will likely not impose akekee, and one commenter stated that The Act does not establish a section any appreciable difference in regulatory Laau ridge between the Alakai 9 prohibition against the adverse requirements under section 7 of the Act Wilderness Preserve and Namolokama modification of critical habitat. for ongoing or future management should be included as critical habitat for (34) Comment: One landowner activities that may be undertaken on both birds. opposed the designation of critical these areas. The essential physical and Our response: As explained in the habitat on private lands within Wainiha biological features (primary constituent Criteria Used to Identify Critical Habitat Valley. They believe the designation elements) defined in previous critical Boundaries section of the proposed rule, will negatively impact the rights of habitat designations, and special we proposed critical habitat on lands private landowners, and serve as a management considerations or occupied by the species that contain the disincentive for landowners to protection needed for those species, are physical and biological features participate in voluntary conservation similar to those for the species essential to the conservation of each efforts. They stated that the designation addressed in this final rule. species that may require special of additional critical habitat is (35) Comment: One commenter management considerations or unnecessary in light of the ongoing suggested that the impact of listing and protection. We also proposed critical conservation management activities critical habitat designation would habitat on lands that were not occupied benefiting endangered species in the primarily impact sportsmen who hunt by the species, but were determined to valley. They also stated that critical game in those units. be essential to their conservation. Based habitat designation would result in little Our response: A critical habitat on the best scientific data available, we if any additional benefit to the species, designation does not create a wilderness believe this final rule adequately reflects and that any limited regulatory, area, preserve, or wildlife refuge, nor the areas essential for the conservation educational, or recovery benefits that does it automatically close an area to of the 47 species for which we are might arise from the designation would human access or use. Its federal designating critical habitat, including be outweighed by the benefits of regulatory effect applies only to the akikiki and akekee. Although Laau encouraging voluntary conservation activities where there is some Federal ridge may potentially be important to efforts by other private landowners. involvement. Land uses such as logging, the recovery of the akikiki and akekee, Our response: We agree that grazing, and recreation that may require the reviewer did not present scientific developing and maintaining public and Federal permits would require data with which we could evaluate private partnerships for species compliance with the Act’s section whether this area is essential to their conservation is important. The 7(a)(2) requirement that Federal action conservation. We have no information conservation agreement between this in issuing the permit not destroy or indicating that Laau ridge is occupied landowner and The Nature Conservancy adversely modify critical habitat. by either akikiki or akekee. The last has established the third largest private Critical habitat designations do not confirmed observation of the akikiki on nature preserve of over 7,000 ac (2,833 constitute land management plans, and Laau ridge that we are aware of was in ha) in Wainiha Valley. Based on the the designation of critical habitat does 1969 (Service 1983, pp. 53, 66). nature of the agreement and the ongoing not require a private or State landowner (37) Comment: Two commenters conservation actions being to fence the designated areas or remove stated that the Hawaiian honeycreepers implemented, we are excluding some of game mammals. It is well understood should be included in the Migratory the subject property within Montane that feral ungulates are responsible for Bird Treaty Act (MBTA) (16 U.S.C. 703- Wet Section 1 from the final critical the decline of native vegetation in 712) to gain protections under that
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statute. One commenter suggested that scientific community, we are listing this Montane Wet as described in the the MBTA specifically and arbitrarily picture-wing fly species as endangered proposed rule was excluded, that left excludes Hawaiian honeycreepers, and in the final rule under the name D. the critical habitat unit numbered Kauai that the inadequacy of existing sharpi rather than D. attigua. We are 18 ‘‘vacant’’ in the final rule, with the regulatory mechanisms (Factor D) also designating critical habitat for D. end result that the unit Kauai 19–Wet presents a threat to the akikiki and sharpi in this final rule. This name Cliff from the proposed rule is now akekee because they are not protected change does not affect the boundaries of Kauai 18–Wet Cliff in this final rule. under the MBTA. The commenter states the proposed designation of critical The effects of this change are also seen that these species should be protected habitat. in various maps and tables throughout under the MBTA since they are (2) We designated an additional 2,936 this final rule, as all new critical habitat members of the avian family ac (1,204 ha) of montane mesic habitat units have been renumbered from the Fringillidae, which is covered by the as critical habitat for the akikiki proposed rule, starting with Unit 18, statute. (Oreomystis bairdi Units 1–3 Montane through Unit 25. Our response: A species qualifies for Mesic) based on information received (5) In accordance with Terrell et al. protection under the MBTA if it meets during the public comment period (2005, p. 818), we changed the scientific one or more criteria, including whether indicating that these areas are occupied name for Hedyotis to Kadua. This it belongs to a family or group of species by this species and contain the physical change is reflected in Table 3– named in the Canadian convention of and biological features essential to its Ecosystem-level Primary Constituent 1961, as amended in 1996; the Mexican conservation that may require special Elements (PCEs) for Each Species and in convention of 1936, as amended in management considerations or the Regulation Promulgation section of 1972; the annex to the Japanese protection (see our response to comment this rule. convention of 1972, as amended; or the 18 above). The addition of this area does (6) We revised certain unit boundaries Russian convention of 1976. The not increase the total amount of critical for plants (Kauai 11–Lowland Mesic and proposed rule (71 FR 50194, August 24, habitat we are designating in this final Kauai 11–Montane Mesic in 2006) to revise the List of Migratory rule, since these areas were already §17.99(a)(1)); akekee (Loxops Birds that receive protections under the proposed as critical habitat for the caeruleirostris–Unit 1–Montane Mesic MBTA states that the MBTA does not akekee, Drosophila sharpi, and several in §17.95(b)); and the picture-wing fly apply to native species that belong to plant species. (Drosophila sharpi–Unit 1–Montane families or groups represented in the (3) We designated an additional 5,013 Mesic in §17.95(i)) based on comments United States that are not expressly ac (2,029 ha) of lowland wet habitat as received from the U.S. Navy (see our mentioned in the Canadian, Mexican, or critical habitat for the plant response to comment 31 above). Russian treaties. Although the Hawaiian Tetraplasandra flynii (Kauai 10– (7) We corrected the upper elevation honeycreepers, including akikiki and Tetraplasandra flynii–b, Kauai 11– limit of the ecosystem-level PCEs for the akekee are in the family Fringillidae, Tetraplasandra flynii–d, Kauai 21– Montane Mesic and Montane Wet and fringillids are covered by the Tetraplasandra flynii–g). These areas Ecosystems (See Table 3). The upper MBTA, the proposed rule to revise the were not proposed as critical habitat for limit is now 5,243 ft (1,598 m) instead List of Migratory Birds specifically T. flynii in our proposed rule, but of 6,600 ft (2,000 m), as 5,243 ft (1,598 names the subfamily Drepanidinae (the information we received during the m) represents the maximum elevation Hawaiian honeycreepers) as one of public comment period indicates these on Kauai. those groups that do not receive areas are occupied by the species and (8) We corrected the species-specific protections under the MBTA (71 FR contain the physical and biological PCE for Lysmiachia daphnoides in 50205). However, regulatory actions features essential to its conservation that Table 4 and elsewhere in the final rule; under the MBTA are beyond the scope may require special management this PCE now clarifies that the species of this final rule. considerations or protection. The utilizes not bogs, but more specifically addition of this area does not increase Summary of Changes from Proposed hummocks in bogs. the total amount of critical habitat we (9) We have corrected the species- Rule are designating in this final rule, since specific PCE for Drosophila sharpi to We fully considered comments from the areas were already proposed as reflect the fact that this picture-wing fly the public and peer reviewers on the critical habitat for several other plant uses both Cheirodendron sp. and proposed rule to develop this final species. Tetraplasandra sp. as larval host plants; listing and critical habitat designation (4) We excluded 1,052 ac (426 ha) the genus Tetraplasandra was not for the 48 species from Kauai. This final owned by Alexander and Baldwin, Inc., included as a species-specific PCE in rule incorporates the following from this final critical habitat the proposed rule. substantive changes to our proposed designation. We proposed this area as (10) We made some corrections to listing and designation, based on the critical habitat for 18 plants, akekee, Table CDLIX (Table Of Protected comments that we received. akikiki, and Drosophila attigua within Species Within Each Critical Habitat (1) At the time we proposed several units (as described in the Unit For Kauai) in the Regulation Drosophila attigua as endangered, we proposed rule: Kauai 18–Montane Wet Promulgation section of this rule to followed the taxonomic treatment of for 18 plants; Drosophila attigua–Unit accurately reflect which units are Hardy and Kaneshiro (1969, p. 41). 5–Montane Wet; Oreomystis bairdi–Unit occupied or unoccupied by the species. Subsequently, a peer reviewer informed 1–Montane Wet; and Loxops us of a recent taxonomic revision in caeruleirostris–Unit 4–Montane Wet). Summary of Factors Affecting the which D. attigua was determined to be The ‘‘Exclusions Under Section 4(b)(2) Species identical to, and synonymized with, D. of the Act’’ section of this final rule Section 4 of the Act (16 U.S.C. 1533) sharpi, a species described by presents a detailed explanation of our and our implementing regulations (50 Grimshaw in 1901 (Grimshaw 1901, p. analysis of this area. CFR part 424) set forth the procedures 65; Magnacca and O’Grady 2008, p. 55). This exclusion additionally resulted for adding species to the Federal Lists Since the synonymy of D. attigua with in a change to some of the critical of Endangered and Threatened Wildlife D. sharpi is currently accepted by the habitat unit numbers. As Kauai 18– and Plants. A species may be
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determined to be an endangered or purposes; (C) disease or predation; (D) species are summarized in Table 2, and threatened species due to one or more the inadequacy of existing regulatory discussed in detail below. Factor D is of the five factors described in section mechanisms; and (E) other natural or not included in the table because we 4(a)(1) of the Act: (A) The present or manmade factors affecting its continued have no information on primary threats threatened destruction, modification, or existence. Listing actions may be to the species that would fall under this curtailment of its habitat or range; (B) warranted based on any of the above category. overutilization for commercial, threat factors, singly or in combination. recreational, scientific, or educational The threats to each of the individual 48
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations 18979 Other threats specific species- native brates inverte- by non- Predation by rats Predation by Predation ungulates Illegal collection Climate Change Land- slides or Flooding Factor A Factor B Factor C Factor E Pigs Goats Deer Pigs Goats Fire Hurricanes X X X X X L X X X NR X X LN, Non- native plants TABLE 2.—SUMMARY OF PRIMARY THREATS IDENTIFIED FOR EACH THE 48 KAUAI SPECIES mocks in bogs) MW, WC MW (hum- LM X LM, DC X LW, WC X X LM, LW,MM, X LM, LW X X X X WC X X X LW X X X NW LW X X X NW X L WC X X LW X X X L X NW X X X X X LW, F X X X X X X X WC X X X X L L X MM X X X X X X F X X LM L LN X MW X X L, L X X X LW X X X X NW L, F X MW X X L X X X X X X X LM X WC X X X X X X X X X X L X X X X X X X X X FR LN X X LN LN X LN LN X NW imbricata magnifolia Species Ecosystem . kauaiensis . remyi . podosorus napaliensis eleanoriae var var densiflora kolekoleensis var ssp. kalalauensis ssp. Astelia waialealae Canavalia Chamaesyce Chamaesyce remyi Chamaesyce remyi Charpentiera Cyanea dolichopoda Cyanea eleeleensis Cyanea Cyanea kuhihewa Cyrtandra oenobarba Cyrtandra paliku Diellia mannii Doryopteris angelica Dryopteris crinalis Dubautia imbricata Dubautia Dubautia kenwoodii Dubautia plantaginea
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A. The Present or Threatened introduced ungulates has increased, and creating large areas of disturbed soil, Destruction, Modification, or the adverse impacts on native vegetation especially on slopes (Aplet et al. 1991, Curtailment of Its Habitat or Range have become increasingly apparent p. 56; Smith 1985, pp. 190, 192, 196, The Hawaiian Islands are located over (Mueller-Dombois et al. 1981, p. 310). 200, 204, 230–231; Stone 1985, pp. 254– Beyond the direct effects of trampling 2,000 mi (3,200 km) from the nearest 255, 262–264; Medeiros et al. 1986, pp. and consuming native plants, feral continent. This isolation has allowed 27–28; Scott et al. 1986, pp. 360–361; ungulates (hoofed mammals) contribute the few plants and animals that arrived Tomich 1986, pp. 120–126; Cuddihy significantly to increased erosion on the in the Hawaiian Islands to evolve into and Stone 1990, pp. 64–65; Loope et al. islands, and their behavior (i.e., rooting, many varied and highly endemic 1991, pp. 1–21; Wagner et al. 1999, p. moving across large expanses) facilitates species (species that occur nowhere else 52). The compacted volcanic soils, the spread and establishment of wallows, and downed, hollowed-out in the world). The only native terrestrial competing, invasive, nonnative plant tree ferns created by feral pig activity mammal on the Hawaiian Islands is a species. The presence of introduced hold water and create breeding sites for flying mammal, the Hawaiian hoary bat nonnative mammals is one of the mosquitoes, which transmit avian (Lasirus cinereus semotus). The native primary factors underlying the disease (Scott et al. 1986, pp. 365–368; plants and animals of the Hawaiian alteration and degradation of native Atkinson et al. 1995, p. S68). Mosquito- Islands have therefore evolved in the vegetation and habitats on the island of borne diseases such as malaria present absence of any mammalian predators, Kauai. Each of the six ecosystems and a significant threat to native Hawaiian browsers, or grazers; many of the native the associated native species therein are forest birds, including the akikiki and species have lost defenses against threatened by the destruction or akekee (see Factor C). threats such as mammalian predation degradation of habitat due to nonnative Goats native to the Middle East and and competition with aggressive, weedy ungulates, including pigs (Sus scrofa), India were also successfully introduced plant species that are typical of goats (Capra hircus), and black-tailed to the Hawaiian Islands in the late mainland environments (Loope 1992, p. deer (Odocoileus hemionus). 1700s. Feral goats now occupy a wide 11; Wagner et al. 1999, pp. 3–6, 45). For Pigs have been described as the most variety of habitats on Kauai, where they example, Carlquist (in Carlquist and pervasive and disruptive nonnative consume native vegetation, trample Cole 1974, p. 29) states that ‘‘Hawaiian influence on the unique native forests of roots and seedlings, accelerate erosion, plants are notably nonpoisonous, free the Hawaiian Islands, and are widely and promote the invasion of alien plants from armament, and free from many recognized as one of the greatest current (Stone 1985, p. 48; van Riper and van characteristics thought to be deterrents threats to forest ecosystems in Hawaii Riper 1982, pp. 34–35). Goats are able to herbivores (oils, resins, stinging hairs, (Aplet et al. 1991, p. 56; Anderson and to access and forage in extremely rugged coarse texture).’’ In addition, species Stone 1993, p. 195; Loope 1999, p. 56). terrain, including nearly vertical cliffs of restricted to highly specialized locations European pigs introduced to Hawaii by the Na Pali Coast, and have a high or food sources (e.g., some Hawaiian Captain James Cook in 1778 hybridized reproductive capacity (Clarke and forest birds and picture-wing flies) are with domesticated Polynesian pigs, Cuddihy 1980, pp. C–19, C–20; Culliney particularly vulnerable to changes (from became feral, and invaded forested 1988, p. 336; Cuddihy and Stone 1990, nonnative species, hurricanes, fire, and areas, especially wet and mesic forests p. 64); because of these factors, goats are climate change) in their habitat and dry areas at high elevations. These believed to have completely eliminated (Carlquist and Cole 1974, pp. 28–29; animals are currently present on Kauai, some plant species from islands Loope 1992, pp. 3–6; Stone 1992, pp. Niihau, Oahu, Molokai, Maui, and (Atkinson and Atkinson 2000, p. 21). 88-95). Hawaii. These introduced pigs are Goats can be highly destructive to Habitat destruction and modification by extremely destructive and have both natural vegetation, and they contribute introduced ungulates direct and indirect impacts on native to erosion by eating young trees and plant communities. While rooting in the young shoots of plants before they can Introduced mammals have greatly earth in search of invertebrates and become established. They also create impacted the native vegetation, as well plant material, pigs directly impact trails that can damage native vegetative as the native fauna, of the Hawaiian native plants by disturbing and cover, destabilize substrate, and create Islands. The first introductions of destroying vegetative cover, and gullies that convey water and exacerbate nonnative mammals began with pigs, trampling plants and seedlings. They erosion, as well as dislodge stones from dogs, and rats that arrived with the may also reduce or eliminate plant ledges that can damage vegetation below Polynesians around 400 A.D. (Kirch regeneration by damaging or eating (Cuddihy and Stone 1990, p. 64). The 1982, pp. 3–4). Nonnative species seeds and seedlings (further discussion erosion caused by goats on the steep impacts to native species and of predation by nonnative ungulates is slopes of Kauai contributes to the ecosystems of Hawaii accelerated under Factor C, below). Pigs are a major potential for landslides and also following the arrival of Captain James vector for the establishment and spread increases the potential for flooding. Cook in 1778. The Cook expedition and of competing invasive nonnative plant Large feral herds of goats can cause subsequent explorers intentionally species, by dispersing plant seeds on damage at multiple scales; their introduced a European race of pigs or their hooves and coats as well as climbing ability allows access to the boars and other livestock, such as goats, through the spread of manure and more remote areas of Kauai, and their to serve as food sources for seagoing fertilizing the disturbed soil through browsing causes habitat degradation explorers (USGS 1998, p. 752). The mild their feces. Pigs feed preferentially on that can lead to erosion and landslides. climate of the islands, combined with the fruits of many nonnative plants, Black-tailed deer (also known as mule the lack of competitors or predators led such as Passiflora tarminiana (banana deer) were first introduced to Kauai in to the successful establishment of large poka) and Psidium cattleianum 1961 for the purposes of sport hunting. populations of these introduced (strawberry guava), spreading the seeds These deer are currently limited to the mammals to the detriment of native of these invasive species through their western side of Kauai, where they feed Hawaiian species and ecosystems. Over feces as they travel in search of food. on a variety of native and alien plants the 200 years following the introduction In addition, rooting pigs contribute to (van Riper and van Riper 1982, pp. 42– of these animals, the numbers of erosion by clearing vegetation and 46). In addition to directly impacting
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native plants through browsing, deer Hawaiian Islands). Over 800 plant taxa Psidium cattleianum (strawberry guava), likely impact native plants indirectly by have been introduced from elsewhere, P. guajava (common guava), serving as a primary vector for the and nearly 100 of these have become Rhodomyrtus tomentosa (downy or rose spread of introduced plants. Deer feed pests (e.g., injurious plants) in Hawaii myrtle), and Schinus terebinthifolius on many alien plant species, and likely (Smith 1985, p. 180; Gagne and Cuddihy (Christmasberry) (Carr 1998, p. 10; distribute these plants seeds through 1999, p. 45; Cuddihy and Stone 1990, p. NTBG Accession Database 1999; NTBG their feces as they travel. Black-tailed 73). Some of these plants were brought Provenance Report 1991; Wood 1998, p. deer have been identified as a vector of to Hawaii by various groups of people, 1; Wood 1999, p. 1; Wood 2005, p. 1; habitat alteration in the Kauai including the Polynesians, for food or Wood 2007a, p. 1; Wood 2007f, p. 1; ecosystems (NTBG report 2007a; HBMP cultural reasons. Plantation owners (and HBMP 2007). In addition, there are 2007), and impact the Kauai plants the territorial government of Hawaii), several nonnative grasses such as through predation as well (Factor C). alarmed at the reduction of water Melinus minutiflora (molasses grass), Each of the six Kauai ecosystems resources for their crops caused by the Oplismenus hirtellus (basketgrass), identified in this final rule (lowland destruction of native forest cover by Paspalum conjugatum (Hilo grass), P. mesic, lowland wet, montane mesic, grazing feral and domestic animals, urvillei (Vasey grass), and Setaria montane wet, dry cliff, and wet cliff) introduced nonnative trees for parviflora (yellow foxtail) that present a and the native species dependent on reforestation. Ranchers intentionally significant threat to the species these habitat types are directly and introduced pasture grasses and other dependent on this ecosystem (HBMP indirectly adversely impacted by feral nonnative plants for agriculture, and 2007). sometimes inadvertently introduced ungulates, resulting in the destruction Lowland Wet Ecosystem and degradation of habitat for the native weed seeds as well. Other plants were Kauai species. These effects include the brought to Hawaii for their potential The nonnative plant threats to the destruction of vegetative cover; horticultural value (Cuddihy and Stone species inhabiting the lowland wet trampling of plants and seedlings; 1990, p. 73; Scott et al. 1986, pp. 361– ecosystem include the understory and consumption of native vegetation; soil 363). subcanopy species Axonopus fissifolius disturbance; dispersal of alien plant Nonnative plants adversely impact (narrow-leaved carpetgrass), Christella seeds on hooves, coats, and through the native Hawaiian habitat, including the 6 parasitica (NCN), Clidemia hirta spread of seeds in feces; and the Kauai ecosystems and the 48 species (Koster’s curse), Coffea arabica (Arabian creation of open disturbed areas identified in this final rule, by coffee), Cyperus meyenianus (NCN), conducive to further invasion by modifying the availability of light, Erigeron karvinskianus, Juncus nonnative pest plant species. Each of altering soil-water regimes, modifying planifolius (bog rush), Lantana camara, these impacts lead to the subsequent nutrient cycling, altering fire Melastoma septemnervium, Oplismenus conversion of a plant community characteristics of native plant hirtellus, Pterolepis glomerata (NCN), dominated by native species to one communities (e.g., successive fires that Rubus rosifolius, Sacciolepis indica dominated by nonnative species (see burn farther and farther into native (glenwood grass), Setaria parviflora, and Habitat destruction and modification by habitat, destroy native plants, and Sphaeropteris cooperi (Australian tree nonnative plants below). In addition, remove habitat for native species by fern), and the canopy species Psidium because these mammals inhabit terrain altering microclimatic conditions to cattleianum, P. guajava, and that is often steep and remote (Cuddihy favor alien species), and ultimately Rhodomyrtus tomentosa (Hawaii State and Stone 1990, p. 59), foraging and converting native dominated plant Comprehensive Wildlife Strategy trampling contributes to severe erosion communities to nonnative plant (HSCWS) 2005; NTBG 2006; Wood of watersheds. As early as 1900, there communities (Cuddihy and Stone, 1990, 1998, p. 2; Wood 2007f, p. 3; HBMP was increasing concern expressed about p. 74; D’Antonio and Vitousek 1992, p. 2007). 73; Smith 1985, pp. 180–181; Vitousek the integrity of island watersheds et al. 1997, p. 6). This directly and Montane Mesic Ecosystem leading to establishment of a indirectly affects the plant and animal The nonnative plant threats to the professional forestry program species in this rule by modifying or species inhabiting the montane mesic emphasizing soil and water destroying their habitat and reducing ecosystem include the understory and conservation (Nelson 1989, p. 3). food sources. Below we have organized subcanopy species Axonopus fissifolius, Habitat destruction and modification by by ecosystem a list of nonnative plants Blechnum appendiculatum, Christella nonnative plants followed by a discussion of the specific parasitica, Cyperus meyenianus, General Ecosystem Impacts negative effects of those nonnative Ehrharta stipioides (meadow ricegrass), plants on these species. Erigeron karvinskianus, Hedychium The native vegetation on all of the gardnerianum, Holcus lanatus (common Lowland Mesic Ecosystem main Hawaiian Islands has undergone velvet grass), Kalanchoe pinnata, extreme alteration because of past and The nonnative plant threats to the Lantana camara, Lonicera japonica present land management practices, species inhabiting the lowland mesic (Japanese honeysuckle), Melastoma including ranching, the deliberate ecosystem include the understory and septemnervium, Paspalum urvillei, introduction of nonnative plants and subcanopy species Blechnum Passiflora tarminiana (banana poka), animals, and agricultural development appendiculatum (no common name, Rubus argutus, and R. rosifolius, and the (Cuddihy and Stone 1990, pp. 27, 58). hereafter ‘‘NCN’’), Erigeron canopy species Corynocarpus laevigatus All of the species being addressed in karvinskianus (daisy fleabane), (karakanut), Eucalyptus robusta (swamp this final rule are threatened by almost Hedychium gardnerianum (kahili mahogany), Psidium cattleianum, 50 taxa of introduced plants that alter ginger), Kalanchoe pinnata (air plant), Rhodomyrtus tomentosa, and Ricinus their habitat. The original native flora of Lantana camara (lantana), Melastoma communis (castor bean) (HBMP 2007). Hawaii (species that were present before septemnervium (Indian rhododendron), humans arrived) consisted of about Rubus argutus (prickly Florida Montane Wet Ecosystem 1,000 taxa, 89 percent of which were blackberry), Rubus rosifolius The nonnative plant threats to the endemic (species that occur only on the (thimbleberry), and the canopy species species inhabiting the montane wet
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ecosystem include the understory and native species, nonnative plants convert endemic Hawaiian Christella subcanopy species Andropogon native-dominated plant communities to species (Palmer 2003, p. 90). glomeratus (bushy bluestem), nonnative plant communities (Cuddihy • Clidemia hirta is a noxious shrub in Andropogon virginicus (broomsedge), and Stone 1990, p. 74; Vitousek 1992, the Melastomataceae family that Axonopus fissifolius, Clidemia hirta, pp. 33–35). The following list provides forms a dense understory, shades Cyperus meyenianus, Erechtites a brief description of the nonnative out native plants and prevents their valerianifolia (fireweed), Erigeron plants that present a threat to the regeneration, and is considered a karvinskianus, Hedychium species that occur in the ecosystems significant nonnative plant threat gardnerianum, Juncus planifolius, being addressed in this final rule. (Wagner et al. 1985, p. 41; Smith Kalanchoe pinnata, Lantana camara, • Ageratum conyzoides is a perennial 1989, p. 64). All plants in the Paspalum urvillei, Passiflora herb that produces thousands of Melastomataceae family are tarminiana, Rubus argutus, R. rosifolius, seeds spread by wind and water, designated as noxious weeds in the Sacciolepis indica, Setaria parviflora, with over half germinating shortly State of Hawaii (HAR Title 4, and Xyris complanata (yellow-eyed after being shed, displacing native Subtitle 6, Chapter 68). grass), and the canopy species Morella understory vegetation (Pacific • Coffea arabica is shade tolerant and faya (firetree) and Psidium cattleianum Island Ecosystem at Risk (PIER) can form dense stands in the forest (HBMP 2007). 2007). understory. Its seeds are dispersed • Andropogon glomeratus, a grass Dry Cliff Ecosystem by birds and rats and can germinate species, displaces native vegetation under the forest canopy displacing The nonnative plant threats to the by invading disturbed areas, with native vegetation (PIER 2008c). species inhabiting the dry cliff culms (stems of grasses or similar • Corynocarpus laevigatus is a tree up to ecosystem include the understory and plants) to 5 ft (1.5 m) tall, and 49 ft (15 m) tall. Corynocarpus subcanopy species Andropogon reproduces readily by seed (Ohio laevigatus seeds were broadcast by glomeratus, Erigeron karvinskianus, Department of Natural Resources aircraft over the interior of Kauai in Kalanchoe pinnata, Lantana camara, 2006; PIER 2008a). 1929 in an attempt to restore the Lonicera japonica, Passiflora • Andropogon virginicus is a grass with watershed, and it is now tarminiana, Rubus argutus, and Verbena seeds that are easily distributed by naturalized there (Wagner et al. litoralis (vervain) (Wood 2007d; HBMP wind, clothing, vehicles, and feral 1985, p. 39; Forster and Forster 2007). animals (Smith 1989, p. 63). Some research suggests that this species 1999, p. 566). It forms dense shade Wet Cliff Ecosystem may also release allelopathic which excludes other species, and The nonnative plant threats to the substances (chemicals that inhibit the seeds are distributed by species inhabiting the wet cliff growth in other plants) that frugivorous (fruit-eating) birds and ecosystem include the understory and pigs (PIER 2008d). dramatically decrease the • subcanopy species Ageratum reestablishment of native plants Cyperus meyenianus can grow as tall conyzoides (maile honohono), (Rice 1972, p 752). This species is as 2 ft (0.6 m) in height and Andropogon glomeratus, Blechnum included in the Hawaii State outcompetes native plants (Koyama appendiculatum, Clidemia hirta, 1999, p. 1421). noxious weed list (HAR Title 4, • Cyperus meyenianus, Erigeron Subtitle 6, Chapter 68). Ehrharta stipioides is a grass that karvinskianus, Juncus planifolius, • Axonopus fissifolius is a pasture grass creates a thick mat in which other Kalanchoe pinnata, Lonicera japonica, that forms dense mats with tall species cannot regenerate; its seeds Paspalum conjugatum, Passiflora edulis foliage. This species does well in are easily dispersed by awns (passion fruit, lilikoi), P. tarminiana, soils with low nitrogen levels, and (slender, terminal, bristle-like Pluchea carolinensis (sourbush), Rubus can outcompete other grasses in wet process found at the spikelette in argutus, R. rosifolius, Setaria parviflora, forests and bogs. The species is not many grasses) that attach to fur or Sphaeropteris cooperi, and Youngia subject to any major diseases or clothing (U.S. Army 2006, p. 2–1– japonica (oriental hawksbeard), and the insect pests, and recovers quickly 20). • canopy species Buddleja asiatica (dog from fire. The seeds are readily Erechtites valerianifolia, a tall (up to 8 tail) and Psidium cattleianum (Perlman spread by water, vehicles, and ft (2.5 m)), widely-distributed 2007; HBMP 2007). grazing animals (O’Connor 1999, annual herb, produces thousands of wind-dispersed seeds, Nonnative Species-Specific Impacts pp. 1500–1502; Cook et al. 2005, p. 4). outcompeting native plants (Wagner Nonnative plants represent a • Blechnum appendiculatum is a fern et al. 1999, p. 314). significant and immediate threat to each with fronds to 23 in (60 cm) long • Erigeron karvinskianus reproduces and of the 48 species being addressed in this which forms large colonies, spreads rapidly to form dense mats, final rule throughout their ranges by outcompeting many native fern and can spread by stem layering destroying and modifying habitat. They species (Palmer 2003, p. 81). and regrowth of broken roots. This can adversely impact microhabitat by • Buddleja asiatica is a shrub or small species crowds out and displaces modifying the availability of light, tree that can tolerate a wide range ground level plants (Weeds of Blue altering soil-water regimes, and of habitats, forms dense thickets, Mountains Bushland 2006). modifying nutrient cycling processes. and is rapidly spreading into wet • Eucalyptus robusta was planted by They can also alter fire characteristics of forest and even lava and cinder State foresters in the early 1900s on native plant habitat, leading to substrate areas in Hawaii where it all the main Hawaiian Islands incursions of fire-tolerant nonnative displaces native vegetation (Wagner except Niihau and Kahoolawe in an plant species into native habitat. et al. 1999, p. 415; Pacific Island attempt to protect watersheds. Nonnative plants outcompete native Ecosystem at Risk (PIER) 2008b). These trees are quick-growing, can plants by growing faster; in addition, • Christella parasitica (a fern) is known reach 99 ft (30 m) in height, some release chemicals that inhibit the to hybridize with other Christella reproduce from seed, and replace growth of other plants. By outcompeting species, and may hybridize with native forest species (Cuddihy and
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Stone 1990, p 52; Wagner et al. 1999, p. 1562; Cuddihy and Stone which displaces native vegetation 1999, p. 957; PIER 2008e). 1990, p. 89). (Francis 2006). • Hedychium gardnerianum forms vast, • Morella faya is an evergreen shrub or • Psidium cattleianum forms dense dense colonies, displacing other small tree up to 26 ft (8 m) tall. It stands in which few other plants plant species, and reproduces by forms monotypic stands, has the can grow, displacing native rhizomes where already ability to fix nitrogen, and alters the vegetation through competition. established. The conspicuous, successional ecosystems in areas it The fruit is eaten by pigs and birds fleshy, red seeds are dispersed by invades, displacing native that disperse the seeds throughout fruit-eating birds as well as humans vegetation through competition. It the forest (Smith 1985, p. 200; (Smith 1985, p. 191). Aircraft-based is also a prolific fruit producer Wagner et al. 1985, p. 24). • analysis has found that this species (average of 400,000 fruit per Psidium guajava forms dense stands in reduces the amount of nitrogen in individual shrub or tree per year), disturbed forest. The seeds are the native Metrosideros forest and the fruit are spread by spread by feral pigs and alien birds, canopy in Hawaii, a finding frugivorous birds and feral pigs and it can also regenerate from subsequently corroborated by (Vitousek 1990, pp. 8–9; Wagner et underground parts by suckering ground-based sampling (Asner and (Wagner et al. 1999, p. 972). al. 1999, p. 931; PIER 2008g). This • Vitousek 2005). This species may species is on the Hawaii State Pterolepis glomerata is a member of also block stream edges, altering noxious weed list (HAR Title 4, the Melastomataceae family. The water flow and the native Subtitle 6, Chapter 68). basis for its classification as vegetation community (Global • Oplismenus hirtellus forms a dense invasive is the species’ germination Invasive Species Database (GISD) groundcover, is sometimes rate, rapid growth, early maturity, 2007). ability of fragments to root, possible • climbing, and roots at the nodes, Holcus lanatus is an aggressively enabling its rapid spread. It also has asexual reproduction, and seed growing and possibly allelopathic sticky seeds that attach to visiting dispersal by birds (University of (having a chemical inhibitory effect animals and birds that then carry Florida Herbarium 2006). Because on other organisms) grass that them to new areas where they are of these attributes, it displaces quickly becomes dominant over deposited and spread accordingly native vegetation through other plants (Pitcher and Russo (O’Connor 1999, p. 1565; Johnson competition. • Rhodomyrtus tomentosa forms dense 1980, p. 3). 2005). • Juncus planifolius forms dense mats thickets and produces large • Paspalum conjugatum is found in wet and has the potential of displacing amounts of seeds that are dispersed habitats, and forms a dense ground native plants by preventing by frugivorous birds and mammals cover. Its small hairy seeds are establishment of their seedlings (Smith 1985, p. 201). It also alters easily transported on humans and (Medeiros et al. 1991, p. 28). natural fire regimes and sprouts animals or are carried by the wind • Kalanchoe pinnata can form dense prolifically after fires (University of through native forests, where it stands that prevent reproduction of Florida 2006). This species is on the establishes and displaces native native species. It can also reproduce Hawaii State noxious weed list vegetation (Cuddihy and Stone by vegetative means at indents (HAR Title 4, Subtitle 6, Chapter 1990, p. 83; Tomich 1986, p. 125; along the leaf margins (Motooka et 68). al. 2003a). PIER 2006; University of Hawaii • Ricinus communis is a fast growing • Lantana camara was brought to 2008h). • tree that can form thickets that Hawaii as an ornamental plant, and Paspalum urvillei forms dense stands shade out other species (PIER 2007). is an aggressive, thicket-forming which displace native vegetation • Rubus argutus reproduces both shrub which is now found on all of (Motooka et al. 2003b, p. 1). vegetatively and by seed, readily • the main islands (Wagner et al. Passiflora edulis is a vigorous, sprouts from underground runners, 1999, p. 1320). climbing vine cultivated for its fruit and is quickly spread by • Lonicera japonica is a sprawling vine in Hawaii (Escobar 1999, p. 1010). frugivorous birds (Tunison 1991, p. that can grow over and smother It can grow up to 20 ft (6 m) per 2; Wagner et al. 1999, p. 1107; U.S. shrubs and small trees, and cover year once established, smothering Army 2006, pp. 2–1–21, 2–1–22). the forest floor, preventing growth trees and shrubs. Each fruit has This species, which displaces of native species (PIER 2008f). hundreds of seeds which are eaten native vegetation through • Melastoma septemnervium is an and distributed by pigs (PIER competition, is on the Hawaii State invasive shrub that displaces and 2008i). noxious weed list (HAR Title 4, • outcompetes native vegetation Passiflora tarminiana, a vine native to Subtitle 6, Chapter 68). because of its invasive South America, is widely cultivated • Rubus rosifolius forms dense thickets characteristics such as high for its fruit (Escobar 1999, p. 1012). and outcompetes native plant germination rate, rapid growth, First introduced to Hawaii in the species. It easily reproduces from early maturity, ability of fragments early 1900s, it is now a significant roots left in the ground, and seeds to root, possible asexual pest in mesic forest, where it are spread by feral animals and reproduction, and efficient seed overgrows and smothers the forest birds (PIER 2008j; GISD 2008b). dispersal, especially by birds canopy. Its seeds are readily • Sacciolepis indica is an annual grass (Smith 1985, p. 194; University of dispersed by humans, birds, and that invades disturbed and open Florida Herbarium 2006). This feral pigs (La Rosa 1992, pp. 272, areas in wet habitats. The seeds are species is on the Hawaii State 290). dispersed by their ability to attach noxious weed list (HAR Title 4, • Pluchea carolinensis is a fast-growing to animal fur (University of Hawaii Subtitle 6, Chapter 68). shrub that forms thickets in dry 1998). • Melinus minutiflora forms dense mats habitats and can tolerate saline • Schinus terebinthifolius forms dense that can fuel more intense fires that conditions. The wind-dispersed thickets and grows in all terrain, destroy native plants (O’Connor seeds facilitate plant dispersal and the red berries are attractive to
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birds (Smith 1989, p. 63). Schinus 395–397). Few natural ignition sources and shrublands provide fuels that allow seedlings grow very slowly and can existed, natural fuel beds were often fire to burn areas that would not survive in dense shade, exhibiting discontinuous, and rainfall in many otherwise easily burn (Fujioka and Fujii vigorous growth when the canopy is areas on most islands was, and is, 1980, in Cuddihy and Stone 1990, p. opened after a disturbance moderate to high. Fires inadvertently or 93). Native woody plants may recover (Brazilian Pepper Task Force 1997). intentionally ignited by the original from fire to some degree, but fire tips Because of these attributes, it is able Polynesians in Hawaii probably the competitive balance toward alien to displace native vegetation contributed to the initial decline of species (National Park Service 1989, in through competition. native vegetation in the drier plains and Cuddihy and Stone 1990, p. 93). Many • Setaria parviflora can grow in a wide foothills. These early settlers practiced nonnative invasive plants, especially variety of habitats. Its culms slash-and-burn agriculture that created fire tolerant grasses, outcompete native (hollow or pithy stalks or stems) open lowland areas suitable for the later plants and inhibit their regeneration can be up to 4 ft (1.2 m) tall, and colonization of nonnative, fire-adapted (D’Antonio and Vitousek 1992, pp. 70, this species can form significant grasses (Kirch 1982, pp. 5–6, 8; Cuddihy 73–74; Tunison et al. 2002, p. 122). colonies shading and crowding out and Stone 1990, pp. 30–31). Beginning Fire represents a threat to many of the native plant species (O’Connor in the late 18th century, Europeans and species found in the lowland mesic, 1999, p. 1592; University of Florida Americans introduced plants and montane mesic, and dry cliff ecosystems 2007). animals that further degraded native addressed in this final rule. Fire can • Sphaeropteris cooperi is a tree fern Hawaiian ecosystems. Pasturage and destroy dormant seeds as well as plants, native to Australia that was brought ranching, in particular, created highly even in steep or inaccessible areas. to Hawaii for use in landscaping fire-prone areas of nonnative grasses Successive fires that burn farther and (Medeiros et al. 1992, p. 43). It can and shrubs (D’Antonio and Vitousek farther into native habitat destroy native achieve high densities in native 1992, p. 67). Although fires are plants and remove habitat for native Hawaiian forest and grows up to 1 infrequent in mountainous regions species by altering microclimate ft (0.3 m) in height per year. It today, extensive fires have occurred in conditions favorable to alien plants. reaches maximum known heights of lowland mesic areas, and up to half of Alien plant species most likely to be 39 ft (12 m) (Jones and Clemesha the areas dominated by alien species spread as a consequence of fire are those 1976, p. 56), and can displace have been damaged by fire. that produce a high fuel load, are native species. Understory Fires of all intensities, seasons, and adapted to survive and regenerate after disturbance by pigs facilitates its sources are destructive to native fire, and establish rapidly in newly establishment (Medeiros et al. 1992, Hawaiian ecosystems (Brown and Smith burned areas. For example, a p. 30), and it has been known to 2000, p. 172), and a single grass-fueled documented increase in the frequency spread over 7 mi (12 km) through fire can kill most native trees and shrubs and size of fires at Hawaii Volcanoes windblown dispersal of spores from in the burned area (D’Antonio and National Park since 1968 coincided with plant nurseries (Medeiros et al. Vitousek 1992, p. 74). Few native an increasing cover of alien grasses 1992, p 29). Hawaiian plants and animals are (Smith and Tunison 1992, p. 398). • Verbena litoralis is a perennial herb up adapted to withstand fire, and none are Habitat destruction and modification by to 6.5 ft (2 m) tall, and is known to depend on fire for their hurricanes naturalized in a wide range of existence or regeneration. Although habitats in Hawaii (Wagner et al. Vogl (1969) (in Cuddihy and Stone Hurricanes adversely impact native 1999, p. 1325). It displaces native 1990, p. 91) proposed that naturally Hawaiian habitat, including all six6 vegetation through competition. occurring fires, primarily from lightning Kauai ecosystems and their associated • Xyris complanata is a clumping herb strikes, have been important in the species identified in this final rule. cultivated for use in floral development of the original Hawaiian They do this by destroying native arrangements. It is naturalized in flora, and that many Hawaiian plants vegetation, opening the canopy and thus Hawaii in wet muddy areas and on might be fire adapted, Mueller-Dombois modifying the availability of light, and lava and can outcompete native (1981) (in Cuddihy and Stone 1990, p. creating disturbed areas conducive to vegetation (Wagner et al. 1999, p. 91) point out that most natural invasion by nonnative pest species 1615). vegetation types of Hawaii would not (Asner and Goldstein 1997, p. 148; • Youngia japonica is an annual herb 3 carry fire before the introduction of Harrington et al. 1997, pp. 539–540). ft (0.9 m) tall that is native to alien grasses, and Smith and Tunison Because many Hawaiian plant and southeastern Asia and is now a (in Stone et al. 1992, p. 396) state that animal species, including the 48 species pantropical (distributed throughout native plant fuels typically have low in this final rule, persist in low numbers the tropics) weed (Wagner et al. flammability. Cuddihy and Stone (1990, and in restricted ranges, natural 1999, p. 377). In Hawaii it occurs in p. 91) state that fire probably influenced disasters such as hurricanes can be moist, disturbed sites, and can the evolution of the montane particularly devastating (Hawaii invade nearly intact native wet ecosystems of Maui and Hawaii, which Comprehensive Wildlife Conservation forest (Wagner et al. 1999, p. 377), contain grasslands of the native Plan 2005, p. 4–3). outcompeting native vegetation. Deschampsia nubigena (hairgrass) and In November 1982, Hurricane Iwa stands of native shrub species and struck the Hawaiian Islands with wind Habitat destruction and modification by Acacia koa. gusts exceeding 100 miles per hour fire Alien-dominated grasslands and (mph) (161 kilometers per hour (kph)), Fire is a relatively new, human- shrublands constitute the greatest fire causing extensive damage, especially on related threat to native species and threat to native lowland vegetation, the islands of Niihau, Kauai, and Oahu natural vegetation in Hawaii. The including the lowland mesic ecosystem (Businger 1998, pp. 2, 6). Many forest historical fire regime in Hawaii was described in this final rule. Grasses trees were destroyed, which opened the characterized by infrequent, low (particularly those that produce mats of canopy and facilitated invasion of severity fires (Cuddihy and Stone 1990, dry material or retain a mass of standing native habitat by nonnative plants. p. 91; Smith and Tunison 1992, pp. dead leaves) that invade native forests Competition with nonnative plants is a
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threat to each of the 6 ecosystems and a single population of 20 individuals on in temperature of 3.6 °F (2 °C), which the 48 species addressed in this final a steep cliff, one landslide could lead to is within the range predicted by some rule, as described above. In September the extinction of the species by direct climate models (e.g. Still et al. 1999 and 1992, Hurricane Iniki, a Category 4 destruction of the individual plants, references therein, p. 608; IPCC 2001, hurricane with maximum wind speeds mechanical damage to individual plants pp. 67–69), would raise the 63 °F (17 °C) recorded at 140 mph (225 kph), passed which could lead to their death, isotherm in the Alakai Swamp region on directly over the island of Kauai, destabilization of the cliff habitat Kauai by 984 ft (300 m), resulting in an causing significant damage to Kauai’s leading to additional landslides, and 85 percent decrease in the land area native plant populations (Businger alteration of hydrological patterns (e.g., where malaria transmission currently is 1998, pp. 2, 6; S. Perlman 1992, pp. 1– affecting the availability of soil only periodic. If climate change were to 9). Several species of Kauai’s endemic moisture). Field survey data presented reduce the remaining suitable habitat for forest birds suffered significant declines in the HBMP suggest that Charpentiera the akekee and akikiki by 85 percent as in population, and some have not been densiflora and Cyaneaoenobarba are predicted, it would likely contribute to observed since the hurricanes. In threatened by both landslides and the extinction of the species over time. addition, populations of several of flooding, and Cyanea kolekoleensis is The 48 Kauai species in this final rule Hawaii’s rare plants, including three3 of threatened by flooding. may be among the species most the species in this final rule, Lysimachia Habitat destruction and modification by vulnerable to extinction due to iniki, L. pendens, and L. venosa, were climate change anticipated global climate change, adversely impacted by hurricanes Iwa although the specific impacts of such and Iniki through wind damage, canopy The exact nature of the impacts of climate change on these species cannot disruption, and landslides (S. Perlman global climate change and increasing currently be known. Impacts to the 1992, p. 1). Damage by future hurricanes temperatures on native Hawaiian species in this final rule would be could further decrease the remaining ecosystems, including the 6 Kauai expected to include habitat loss and native-plant dominated habitat areas ecosystems and each of the associated alteration or changes in disturbance 48 species identified in this final rule, that support rare plants and wildlife in regimes, in addition to direct are unknown, but are likely to include Kauai ecosystems (S. Perlman 1992, pp. physiological stress. The probability of the loss of native species that comprise 1–9). species going extinct as a result of these the communities in which the 48 Kauai factors increases when ranges are Habitat destruction and modification species occur (Benning et al. 2002, pp. restricted, habitat decreases, and due to landslides and flooding 14246 and 14248; Pounds et al. 1999, population numbers decline (IPCC 2007, Landslides and flooding destabilize pp. 611–612; Still et al. 1999, p. 610). p. 8). Such is the case for each of the substrates, damage and destroy Future changes in precipitation are 48 Kauai species, which are individual plants, and alter hydrological uncertain because they depend in part characterized by limited climactic patterns, which result in changes to on how El Nin˜ o (a disruption of the native plant and animal communities. ocean atmospheric system in the ranges and restricted habitat Due to the steep topography of much of Tropical Pacific having important global requirements, small population size, the island of Kauai, erosion and consequences for weather and climate) and low number of individuals. The disturbance caused by introduced might change, and reliable projections threat of climate change for the akikiki ungulates exacerbate the potential for of changes in El Nin˜ o have yet to be and akekee would be further landslides or flooding, which in turn made (Benning et al. 2002, pp. 14248– exacerbated by the extensive loss of threaten native plants. For those species 14249). suitable habitat due to the expansion of that occur in small numbers in highly According to some climate change the transmission zone for malaria. restricted geographic areas, such events projections, temperature increases could Summary of Habitat Destruction and have the potential to eradicate all present an additional threat specific to Modification individuals of a population, or even all the akekee and akikiki by causing an populations of a species, resulting in increase in the elevation at which The threats to each of the 48 Kauai extinction. regular transmission of avian malaria species addressed in this final rule are Landslides and flooding likely occurs, potentially reducing the occurring throughout the entire range of adversely impact many of the species remaining suitable habitat for these each of the species. These threats addressed in this final rule, including: species by 85 percent (Benning et al. include introduced ungulates, Chamaesyce eleanoriae, C. remyi var. 2002). Experimental evidence has nonnative plants, fire, natural disasters, kauaiensis, C. remyi var. remyi, shown that the malaria parasite does not and climate change. Charpentiera densiflora, Cyanea develop in birds in an environment The effects from ungulates are dolichopoda, C. eleeleensis, C. below 55 degrees Fahrenheit (°F) (13 immediate because ungulates currently kolekoleensis, C. kuhihewa, Cyrtandra °C)), and field studies have found that occur in all of the ecosystems on which oenobarba, C. paliku, Diellia mannii, maximum malaria transmission occurs these species depend. The threat Dubautia kenwoodii, D. plantaginea ssp. where mean ambient summer presented by introduced ungulates is magnifolia, Lysimachia iniki, L. temperature is 63 °F (17 °C) (Benning et significant for the following reasons: pendens, L. scopulensis, L. venosa, al. 2002, p. 14,246). Between 55 and 63 (1) They trample and graze areas, Melicope paniculata, Myrsine mezii, °F (13 and 17 °C), malaria transmission directly impacting the plant species Phyllostegia renovans, Platydesma is sporadic and usually associated with addressed in this final rule; rostrata, Schiedea attenuata, and warmer periods, such as El Nin˜ o events (2) They increase soil disturbance, Stenogyne kealiae. Monitoring data (Benning et al. 2002, p. 14246). There leading to mechanical damage to from the HBMP suggests that these are no forested areas on Kauai where individuals of these plants and host species are threatened by landslides or mean ambient temperature is below 55 plants of Drosophila sharpi; falling rocks, since they are found in °F (13 °C), which indicates that all areas (3) They trample and graze on native landscape settings susceptible to these are subject to malaria at least plants used for nesting and foraging by events (e.g., steep slopes and cliffs). periodically. Benning et al. (2002) used the akekee and akikiki, and for larvae Since S. attenuata is known from only GIS simulation to show that an increase development and foraging by D. sharpi;
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(4) They create open, disturbed areas burn farther and farther into native island endemic species. Each of the 48 that are conducive to weedy plant habitat destroy native plants and Kauai species are particularly invasion and establishment of alien remove habitat for native species by vulnerable to extinction because of plants from dispersed fruits and seeds. altering microclimatic conditions and these kinds of environmental changes. Over time, this results in the conversion creating conditions favorable to alien In addition, climate change may present of a community dominated by native plants. The threat from fire is a significant threat specific to the akekee vegetation to one dominated by unpredictable but omnipresent in these and akikiki by causing an increase in nonnative vegetation (leading to all of ecosystems that have been invaded by the elevation at which regular the negative impacts associated with nonnative, fire-prone grasses. transmission of avian malaria occurs, nonnative plants, detailed below); Natural disasters such as hurricanes thereby reducing available habitat. (5) They increase watershed erosion represent a significant threat to native However, because the specific effects of and sedimentation; and habitat and the 48 species addressed in probable climate change on these (6) They create breeding sites for this final rule because they open the species are unknown at this time, we are mosquitoes, the primary vector for the forest canopy, modify available light, not able to determine the magnitude of transmission of avian diseases, which and create disturbed areas that are this threat with confidence. Each of the threaten the akikiki and akekee. conducive to invasion by nonnative pest Factor A threats are ongoing and are These significant threats are ongoing plants (Asner and Goldstein 1997, p. expected to continue or increase in and are expected to continue or increase 148; Harrington et al. 1997, pp. 346– magnitude and intensity into the in magnitude and intensity into the 347). These impacts can be particularly foreseeable future. These threats are foreseeable future without control or devastating to the 48 species addressed acting in concert with other threats to eradication. in this final rule because due to other the species, magnifying the cumulative Nonnative plants represent a threats they now persist in low numbers detrimental effects on the status of each significant and immediate threat to all or occur in restricted ranges, and are of the 48 Kauai species identified in this 48 species being addressed in this final therefore less resilient to such rule. rule through habitat destruction and disturbances. Furthermore, a modification for the following reasons: particularly destructive hurricane holds B. Overutilization for Commercial, (1) They adversely impact the potential of driving a highly Recreational, Scientific, or Educational microhabitat by modifying the localized endemic species to extinction Purposes availability of light; in a single event. In 1982 and 1992, the The palm tree Pritchardia hardyi is (2) They alter soil-water regimes; island of Kauai received the brunt of found only on the island of Kauai. Rare (3) They modify nutrient cycling hurricane-force winds and rain palm trees are highly desirable to processes; associated with hurricanes Iwa and collectors, and there is an active internet (4) They alter fire characteristics of Iniki. Field biologists noted significant sales and online auction market for their native plant habitat, leading to declines in native Hawaiian plant and seeds and seedlings, including P. hardyi incursions of fire-tolerant nonnative wildlife populations following these (GardenGuides.com 2007; plant species into native habitat; and events, and believe that future hurricane Rarepalmseeds.com 2007; South Coast (5) They outcompete, and possibly damage could further exacerbate these directly inhibit the growth of, native Palms 2007; Kapoho Palms 2007; J.D. declines (S. Perlman 1992, p. 1). Anderson Nursery 2007; Jungle Music plant species. Hurricanes present an immediate and All of these threats can convert native Palms and Cycads 2007; Tropical ever-present threat, because they can Gardens of Maui 2007). Seeds of P. dominated plant communities to occur at any time, although their nonnative plant communities (Cuddihy hardyi have been illegally removed from occurrence is not predictable. an outplanting site in the past (R. and Stone 1990, p. 74; Vitousek 1992, Landslides and flooding adversely Nishek, NTBG, pers. comm. 2007), and pp. 33–35). This conversion has impact many of the species in this final we have evidence of vandalism and negative impacts on and threatens the rule (see Table 2) by destabilizing illegal collection of other species of 45 plant species addressed here, as well substrates, damaging and destroying endangered Pritchardia palms on Kauai as the akikiki, akekee, and Drosophila individual plants, and altering (Johnson 1996, pp. 16–17; A. Kyono, sharpi, which depend upon native plant hydrological patterns, which result in DOFAW, pers. comm. 2000; R. Nishek, species for essential life history needs. habitat destruction or modification and pers. comm. 2007). Because this species The significant threat presented by changes to native plant and animal is found in only two populations with nonnative plants is ongoing and is communities. These threats are limited numbers of individuals, and is expected to continue or increase in significant and, as with hurricanes, have magnitude and intensity into the the potential to occur at any time, vulnerable to vandalism and illegal foreseeable future without the although their occurrence is not collection, we consider overutilization implementation of effective native predictable. to be an immediate and significant ecosystem restoration actions. The projected effects of global climate threat to P. hardyi throughout its entire The threat from fire to the species in change and increasing temperatures on range. We do not consider this final rule that depend on lowland the 48 species addressed in this final overutilization to present a threat to any mesic, montane mesic, and dry cliff rule relate to changes in microclimatic of the other 47 Kauai species. ecosystems (see Table 2) is significant conditions, which may lead to the loss C. Disease or Predation because fire damages and destroys of native species due to direct native vegetation, including dormant physiological stress, the loss or Avian Diseases seeds, seedlings, and juvenile and adult alteration of habitat, or changes in Avian diseases transmitted by the plants. Many nonnative invasive plants, disturbance regimes (e.g., storms and introduced southern house mosquito particularly fire-tolerant grasses, hurricanes). The probability of species (Culex quinquefasciatus), including outcompete native plants and inhibit going extinct increases when ranges are avian pox (Poxvirus avium) and malaria their regeneration (D’Antonio and restricted, habitat decreases, and (Plasmodium relictum), play a major Vitousek 1992, pp. 70, 73–74; Tunison population numbers decline, as is the role in limiting the distribution of many et al. 2001, p. 122). Successive fires that case with small populations of single- Hawaiian forest bird species and present
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a significant and immediate threat to the Predation their rooting and wallowing behavior akekee and akikiki throughout their Hawaii’s plants and animals evolved led to spoilage of watering holes and ranges (Benning et al. 2002, p. 14246). in nearly complete isolation. Successful loss of soil through leaching and Like many other native Hawaiian forest colonization of these remote volcanic erosion. Rooting activities also birds, the akikiki and akekee are no islands was infrequent, and many decreased the survivability of some plant species through disruption at root longer found at lower elevations, and organisms never established are now restricted to the higher level of mature plants and seedlings populations. As an example, Hawaii elevation montane mesic and montane (Beach 1997, pp. 3–4). lacks any native ants or conifers, has wet ecosystems where mosquitoes and very few bird families, and has only a Feral goats the diseases they carry are less prevalent single native land mammal (Loope 1998, (Scott et al. 1986, pp. 367–368). In the Feral goats thrive on a variety of food p. 748). Defenses against mammalian warmer fall months, C. quinquefasciatus plants, and are instrumental in the herbivory, such as thorns, prickles, and breeds at higher densities in upper decline of native vegetation in many production of toxins, were not needed, elevation forests, coinciding with a areas (Cuddihy and Stone 1990, p. 64). and evolutionary pressure for plants to prevalence of malaria in avian Feral goats trample roots and seedlings, produce or maintain them was lacking. populations at higher elevations (van cause erosion, and promote the invasion Riper et al. 1986, pp. 332–333, 338). Therefore, Hawaiian plants lost or never of alien plants. They are able to forage Native Hawaiian birds became developed these defenses (Carlquist in extremely rugged terrain and have a exposed to mosquito-borne avian 1980, p. 173). Likewise, birds endemic high reproductive capacity (Clarke and diseases when mosquitoes were to Hawaii lost their resistance to Cuddihy 1980, p. C–20; van Riper and introduced to the islands in 1827 with diseases common to their continental van Riper 1982, pp. 34–35; Tomich imported caged birds and domestic fowl origins, and strategies to avoid 1986, pp. 153–156; Cuddihy and Stone (Yorinks and Atkinson 2000, p. 731 and mammalian predators. Native Hawaiian 1990, p. 64). A study of goat predation references therein). Native Hawaiian birds were not able to withstand the on a native Acacia koa forest on the forest birds are more susceptible to stressors of habitat change and island of Hawaii has shown that grazing malaria than are nonnative bird species predation caused when browsers, pressure by goats can cause the eventual (van Riper et al. 1986, pp. 327–328), and grazers, rooters, and predators were extinction of koa because it is unable to native birds infected with malaria also introduced (e.g., goats, cattle, pigs, rats, reproduce (Spatz and Mueller-Dombois show altered behaviors that increase cats, and deer) (Scott et al. 1986, pp. 1973, p. 874). If goats are maintained at their vulnerability to predation (Yorinks 352–361, 364–365). The native flora and constantly high numbers, mature trees and Atkinson 2000, pp. 731–738). Avian fauna of the islands are thus particularly will eventually die, including the root malaria appears to be highly pathogenic vulnerable to the impacts of introduced systems that support suckers and for the Hawaiian honeycreepers (birds alien species. vegetative reproduction. An exclosure in the subfamily Drepanidinae), Introduced Ungulates analysis demonstrated that restricting including the akikiki and akekee goat access using fencing resulted in a (Yorinks and Atkinson, p. 737); in a In addition to the habitat impacts rapid recovery in height growth and study of iiwi (Vestiaria coccinea), discussed above (see ‘‘Habitat numbers of vegetative resprouts of koa another Hawaiian honeycreeper, destruction and modification by (Spatz and Mueller-Dombois 1973, p. Atkinson et al. (1995, p. S65) described introduced ungulates’’), the 45 plant 873). Another study at Puuwaawaa on ‘‘extraordinarily high mortality’’ of birds species in this final rule are likely the island of Hawaii demonstrated that infected with malaria. This impacted by ungulates due to trampling prior to management actions in 1985, susceptibility, in combination with the and eating individual plants. This regeneration of endemic shrubs and observation that other Hawaiian information is also presented in Table 2. trees in the goat-grazed area was almost honeycreepers have become restricted to Feral pigs totally lacking, contributing to the high elevation forests, led Atkinson et invasion of the forest understory by al. (1995, p. S68) to predict that a shift We have direct evidence of ungulate exotic grasses and weeds. After the in the current mosquito distribution to damage to some of these species, but for removal of grazing animals in 1985, koa higher elevations could be disastrous for many, ungulate damage is presumed and Metrosideros spp. (ohia) seedlings those species with already reduced based on several studies conducted in were observed germinating by the populations. As discussed below Hawaii and elsewhere. In a study thousands (Department of Land and (‘‘Other Natural or Manmade Factors conducted by Diong (1982, p. 160) on Natural Resources 2002, p. 52). Goats Affecting Their Continued Existence’’), Maui, feral pigs were observed browsing have been observed uprooting, eating, climate change may present such a on young shoots, leaves, and fronds of and trampling native plants in the Kauai threat to the akikiki and akekee, by a wide variety of plants, of which over ecosystems (e.g., K. Wood 1994; S. potentially causing an increase in the 75 percent were endemic species (Diong Perlman 2007). Based on a comparison elevation at which regular transmission 1982, p. 160). A stomach content of fenced and unfenced areas, it is clear of avian malaria occurs (Benning et al. analysis in this study showed that 60 that goats can devastate native 2002, pp. 14246–14247). Atkinson et al. percent of the pigs’ food source ecosystems. They can also outcompete (2009, pp. 58-59) state that in the Alakai consisted of the endemic Cibotium (tree black-tailed deer. It is estimated that Wilderness Preserve, a projected 2 °C fern). Pigs were observed to fell plants there can be up to 2 goats per hectare temperature rise from global warming and remove the bark of the native plant in areas in Hawaii (C. Kessler, pers. would reduce the forested habitat where species Clermontia, Cibotium, comm. 2008). transmission is currently highly Coprosma, Psychotria, Scaevola, and seasonal to conditions where Kadua (Hedyotis), resulting in larger Black-tailed deer transmission could occur throughout trees being killed over a few months of Black-tailed deer consume native the year by 85 percent. repeated feeding (Diong 1982, p. 144). A vegetation, trample roots and seedlings, Disease is not known to be a threat to study in Texas conducted by Beach accelerate erosion, and promote the the 45 plants or Hawaiian picture-wing (1997, pp. 3–4) revealed that feral pigs invasion of nonnative plants (van Riper fly addressed in this final rule. spread disease and parasites, and that and van Riper 1982, pp. 42–43; Stone
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1985, pp. 261–262; Tomich 1986, pp. fruits are particularly susceptible to rat Examination of the stomach contents of 132–134; Cuddihy and Stone 1990, p. predation including several of the plant 118 feral cats at Hakalau forest found 67). About 350 animals are known to genera in this listing, for example the native and introduced birds to be the occur in and near Waimea Canyon, with fruits of Pritchardia spp., and plants in most common prey item (Banko et al. some invasion into Alakai Swamp in the bellflower (e.g., Cyanea spp.) and 2004, p. 162). In addition, two species drier periods (Cuddihy and Stone 1990, African violet (e.g., Cyrtandra spp.) of owls, the native pueo and the p. 67). According to current State families (Cuddihy and Stone 1990, pp. introduced barn owl, are also known to records, they feed largely on the 67–69). Research on rats in forests in prey on forest birds. Between 1996 and introduced species strawberry guava, New Zealand has demonstrated that, 1998, 10 percent of nest failures of the thimbleberry, passion flower, and over time, rats may alter the species endangered puaiohi on Kauai were blackberry, as well as the native species composition of forest plants (Cuddihy attributed to owls (Snetsinger et al. Alyxia oliviformis (maile), Dodonaea and Stone 1990, pp. 68–69). 1994, p. 47; Snetsinger et al. 2005, pp. viscosa (aalii), Dianella sandwicensis Rat predation may also threaten the 72, 79). Since the puaiohi occurs in the (ukiuki), Coprosma sp. (pilo), and native host plants of Drosophila sharpi, same area and forest type as the akikiki Acacia koa (Cuddihy and Stone 1990, p. and the akekee and akikiki in the and akekee and is of generally similar 67). Black-tailed deer affect the species montane mesic and montane wet size, it is not unreasonable to assume and ecosystems addressed in this final ecosystems. Rats are reported in the there may be similar impacts to these rule by damaging native plants through ecosystems where these birds occur and bird species. browsing or trampling, resulting in are potential predators on roosting or Invertebrates plant mortality and the loss of incubating adults, nests, and young reproductive vigor. By spreading seeds (VanderWerf and Smith 2002, p. 73; Predation by nonnative invertebrate of nonnative species on their coats or in Scott et al. 1986, pp. 363–364; USFWS pests adversely impacts 14 of the plant their digestive tracts, they also increase 2007 Candidate Status Assessments). and animal species (see Table 2) in this competition for resources with native Predation by rats was the greatest cause final rule through mechanical damage to species. of nest failure for the puaiohi, or small plants, destruction of plant parts, Kauai thrush (Myadestes palmeri), an parasitism, and mortality. Those Rats endangered bird that inhabits the same introduced invertebrate pests with the There are three species of introduced areas as the akekee and akikiki (Tweed greatest effect on these native species rats in the Hawaiian Islands. The et al. 2006, p. 753). Puaiohi nest almost include at least 12 different species of Polynesian rat (Rattus exulans) and the exclusively in pseudo-cavities on cliff slugs (Joe 2006, pp. 6, 12), the black black rat (Rattus rattus) are primarily faces (Snetsinger et al. 2005, p. 77), twig borer (Xylosandrus compactus) found in the wild, in dry to wet habitats, unlike akikiki and akekee that build cup (Davis 1970, pp. 38–39),, the two- while the Norway rat (Rattus nests in trees (Birds of North America spotted leafhopper (Sophonia norvegicus) is typically found in Online, 2008a,b). Captive-raised puaiohi rufofascia) (Hawaii Department of manmade habitats such as urban areas constructed cup nests in trees during a Agriculture, p. 1; Fukada 1996, pp. 1– or agricultural fields (Tomich 1986, p. 1999 captive release in the Kawaikoi, 12), and the western yellow-jacket wasp 41). The Polynesian rat probably arrived and two females and their associated (Vespula pensylvanica) (Gambino and on the Hawaiian Islands as an young were killed by rats at these nests Loope 1992, p. 1). inadvertent introduction by early (Tweed et al. 2003, USGS/BRD, Predation by nonnative slugs is most Polynesian colonizers from the central unpublished data). From these data and likely a threat to individuals of the four Pacific (Tomich 1986, p. 42). More information on rat predation for cliff species of Cyanea in this final rule: recently, the black rat and the Norway nests (Snetsinger et al. 2005, p. 79), it Cyanea dolichopoda, C. eleeleensis, C. rat most likely arrived on the Hawaiian is apparent that puaiohi cliff nests and kolekoleensis, and C. kuhihewa (Joe Islands as stowaways on ships sometime cup nests in trees are both vulnerable to 2006, p. 10). On Oahu, slugs have been in the 19th century (Atkinson and rat predation. Although we do not have reported to destroy C. grimesiana ssp. Atkinson 2000, p. 25). direct evidence of rat predation on the obatae and C. superba ssp. superba in Rats occur in all 6 of the Kauai akekee or akikiki from nest studies, it is the wild, and have been observed eating ecosystems, and rat predation threatens reasonable to assume that birds nesting leaves and fruit of cultivated at least 19 of the 45 plant species in the same area as the puaiohi would individuals of Cyanea (L. Mehrhoff, addressed in this final rule (see Table 2). be exposed to similar impacts from rat pers. comm. 1995; U.S. Army Garrison Although introduced rats are best predation. 2005, pp. 3–34, 3–51). Little is known known for their impacts on island birds, about the predation of certain rare rat predation on seeds and young plants Cats and Owls plants by slugs; however, information in can seriously affect regeneration. They Feral cats are present in the Alakai the U.S. Army’s 2005 Status Report for are also known to have caused declines Swamp, which is within the montane the Makua Implementation Plan or even the total elimination of island wet ecosystem (Tweed et al. 2006, p. indicates that slugs can be a threat to all plant species (Campbell and Atkinson 753). Cats are believed to prey on species of Cyanea (U.S. Army Garrison 1999, as cited in Atkinson and Atkinson roosting or incubating akekee and 2005, p. 3–51). Research investigating 2000, p. 24). Rats impact the native akikiki adults, nests, and young slug herbivory and control methods plants by eating fleshy fruits, seeds, (VanderWerf and Smith 2002, p. 73; shows that slug impacts on Cyanea flowers, stems, leaves, roots, and other Scott et al. 1986, pp. 363–364). Though seedlings results in up to 70 to 80 plant parts (Atkinson and Atkinson cats are most common at lower percent seedling mortality (U.S. Army 2000, p. 23). On the Hawaiian Islands, elevations, they have been observed in Garrison 2005, p. 3–51). Although we do rats may consume as much as 90 high-elevation rain forests on Hawaii not have direct evidence of slug percent of the seeds produced by some and Maui (Scott et al. 1986, p. 363). On predation on the four species of Cyanea trees, or in some cases prevent the Hawaii Island, native forest birds have addressed in this rule, slugs are found regeneration of forest species been found to be a regular component in the ecosystems on Kauai in which completely (Cuddihy and Stone 1990, in the diets of feral cats in the montane these plants occur. It is therefore pp. 68–69). Plants with large, fleshy wet forest (Smucker et al. 2000, p. 233). reasonable to assume these plant species
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would be exposed to similar impacts contributing to the reduction in range the flies’ lekking (gathering in groups for from slug predation. and abundance of Drosophila species in breeding) behavior, conspicuous The black twig borer (Xylosandrus Hawaii (Science Panel 2005, p. 25). In courtship displays that can last for compactus) is known to infest a wide addition to the accidental establishment several minutes, and relatively large size variety of common plant taxa, including of nonnative species, nonnative (K. Kaneshiro, University of Hawaii at native species of Melicope (Davis 1970, predators and parasites have been Manoa, pers. comm. 2006). Yellow- p. 39; Extension Entomology and UH- purposefully imported and released in jacket wasps are widespread within at CTAHR Integrated Pest Management Hawaii since 1865 for biological control least a portion of the range Program 2006a, p. 1). This insect pest of pests. Between 1890 and 2004, 387 encompassing the D. sharpi population burrows into branches, introduces a nonnative species were introduced, sites in the montane mesic and montane pathogenic fungus as food for its larvae, sometimes with the specific intent of wet ecosystems on Kauai (Science Panel and lays its eggs (Davis 1970, p. 39). reducing populations of native 2005, p. 12). Twigs, branches, and even entire plants Hawaiian insects (Funasaki et al. 1988, The rarity or disappearance of can be killed from an infestation pp. 109–110, 143; Lai 1988, pp. 180, numerous picture-wing fly species, (Extension Entomology and UH-CTAHR 186; Staples and Cowie 2001, pp. 41, including Drosophila sharpi, from Integrated Pest Management Program 54–57). Nonnative arthropods present a historical observation sites over the past 2006a, p. 2). On the Hawaiian Islands, serious threat to Hawaii’s native 25 years may be due to a variety of the black twig borer has many hosts, Drosophila, both through direct factors. While there is no disperses easily, and is probably present predation or parasitism as well as documentation that conclusively ties at most elevations up to 2,500 ft (762 m) competition for food and space; this decrease in observations to the (Howarth 1985, pp. 152–153). Damage therefore, these nonnative arthropods establishment of yellow-jacket wasps caused by the black twig borer has been may be a threat to Drosophila sharpi within their habitats, the concurrent observed by field biologists on (Howarth and Medeiros 1989, pp. 82– arrival of wasps and decline of picture- Canavalia napaliensis, Charpentiera 83; Howarth and Ramsay 1991, pp. 80– wing fly observations in some areas densiflora, Melicope degeneri, M. 83; Kaneshiro and Kaneshiro 1995, pp. suggest that the wasps may have played paniculata, and M. puberula (HBMP 41–45; Staples and Cowie 2001, pp. 41, a significant role in the decline of some 2006). 54–57). picture-wing fly populations, including The two-spotted leafhopper is a threat Due to their large colony sizes and that of D. sharpi (Foote and Carson as the effects of its predation have been systematic foraging habits, species of 1995, p. 370; Kaneshiro and Kaneshiro observed on four plant species included social Hymenoptera (ants and some 1995, pp. 41–45; Science Panel 2005, p. in this final rule: Chamaesyce remyi var. wasps) and parasitic wasps present a 25). remyi (K. Wood, pers. comm. 2000), predation threat to the Hawaiian Summary of Predation Cyanea kuhihewa (Wood 2004), picture-wing flies, including Drosophila Platydesma rostrata (HBMP 2007), and sharpi (Gambino et al. 1987, p. 170; We consider predation and parasitism Psychotria hobdyi (HBMP 2006). This Foote and Carson 1995, p. 370; by nonnative animal species (pigs, nonnative insect damages the leaves it Kaneshiro and Kaneshiro 1995, p. 12). goats, deer, rats, and invertebrates) to feeds on, typically causing chlorosis Hawaiian arthropods, including D. present an immediate and significant (yellowing due to disrupted chlorophyll sharpi, evolved without the predation threat to 44 of the 48 species in this production) to browning and death of influence of social wasps (Kaneshiro final rule throughout their ranges for the foliage (Hawaii Department of and Kaneshiro 1995, pp. 41–45), and following reasons: Agriculture 2006, p. 1). The damage to therefore have no defenses against such (1) Browsing and trampling by pigs, plants can result in the death of affected predation. In 1977, an aggressive race of goats, and deer has been documented leaves or the whole plant, owing to the the western yellow-jacket wasp became for 40 of the plant species included in combined action of its feeding and established in the State of Hawaii, and this final rule (Astelia waialealae, oviposition behavior (Alyokhin et al. is now abundant between 1,969 and Canavalia napaliensis, Chamaesyce 2004, p. 13). In addition to the 5,000 ft (600 and 1,524 m) in elevation eleanoriae, Chamaesyce remyi var. mechanical damage caused by the (Gambino et al. 1990, p. 1,087; Foote kauaiensis, Chamaesyce remyi var. feeding process, the insect may and Carson 1995, p. 370) on all the main remyi, Charpentiera densiflora, Cyanea introduce plant pathogens that lead to islands (Tenorio and Nishida 1995, p. eleeleensis, Cyanea kolekokeensis, eventual plant death (Extension 174). Cyanea kuhihewa, Cyrtandra Entomology and UH-CTAHR Integrated Drosophila sharpi is present within oenobarba, Diellia mannii, Doryopteris Pest Management Program 2006b, p. 2). the elevation range occupied by the angelica, Dubautia imbricata ssp. The two-spotted leafhopper is a highly yellow-jacket wasps, which are imbricata, Dubautia kalalauensis, polyphagous (generalist) insect, and of voracious predators in most ecosystems Dubautia kenwoodii, Dubautia its recorded host plant species, 68 in which they are found. Compared plantaginea ssp. magnifolia, Dubautia percent are fruit, vegetable, and with typical North American waialealae, Geranium kauaiense, ornamental crops, and 22 percent are populations, yellow-jacket wasps in Keysseria erici, Keysseria helenae, endemic plants;, over half of which are Hawaii display a high incidence of Labordia helleri, Labordia pumila, rare and endangered (Alyokhin et al. colonies that overwinter and persist into Lysimachia daphnoides, Lysmachia 2004, p. 13). Its range is limited to at least a second year. The result is that pendens, Lysmachia scopulensis, below 4,000 ft (1,219 m) in elevation, numbers of workers at such colonies are Melicope degeneri, Melicope paniculata, unless there is a favorable microclimate. much greater than at annual colonies Melicope puberula, Myrsine knudsenii, There has been a dramatic reduction in (Gambino et al. 1987, p. 169). Yellow- Myrsine mezii, Phyllostegia renovans, the two-spotted leafhopper populations jacket wasp colonies in Hawaii can each Pittosporum napaliense, Platydesma in the past few years, possibly due to produce over a half-million foragers that rostrata, Pritchardia hardyi, Psychotria egg parasitism (M. Fukada, pers. comm. consume tens of millions of arthropods grandiflora, Psychotria hobdyi, 2007). (Gambino and Loope 1992, p. 19). Schiedea attenuata, Stenogyne kealiae, Nonnative predatory and parasitic Picture-wing flies may be particularly Tetraplasandra bisattenuata, and insects are considered significant factors vulnerable to predation by wasps due to Tetraplasandra flynii); other studies
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have documented the negative impacts importation of migratory birds. Since as the akikiki and akekee or that yellow- of ungulate browsing and trampling on none of the activities regulated under jacket wasps significantly threaten other other native plant species from the the MBTA pose a threat to either the species of Hawaiian birds through Hawaiian islands (Spatz and Mueller- akikiki or akekee, we do not consider competition for the same prey, it has Dombois 1973, p. 874; Diong 1982, p. the lack of regulatory protection under been suggested that this nonnative wasp 160; Cuddihy and Stone 1990, p. 67); the MBTA to pose a threat to either of may be a potential threat to the akikiki (2) Mechanical damage caused by these two bird species. and akekee (D. LaPointe, pers. comm. nonnative invertebrates and rats has 2009). been documented for 23 of the plant E. Other Natural or Manmade Factors species in this final rule (Canavalia Affecting Their Continued Existence Small Number of Populations and Individuals napaliensis, Chamaesyce eleanoriae, Competition with Nonnative Chamaesyce remyi var. remyi, Invertebrates Species that are endemic to single Charpentiera densiflora, Cyanea islands are inherently more vulnerable Competition by nonnative crane-flies to extinction than widespread species dolichopoda, Cyanea eleeleensis, (family Tipulidae) is a threat to Cyanea kolekokeensis, Cyanea because of the increased risk of genetic Drosophila sharpi in the montane mesic kuhihewa, Cyrtandra oenobarba, bottlenecks, random demographic and montane wet ecosystems on Kauai. Doryopteris angelica, Labordia helleri, fluctuations, climate change, and The Hawaiian Islands now support Melicope degeneri, Melicope paniculata, localized catastrophes such as several established species of nonnative Melicope puberula, Myrsine knudsenii, hurricanes and disease outbreaks crane-flies, and the larvae of some Phyllostegia renovans, Pittosporum (Mangel and Tier 1994, p. 607; Pimm et species feed within the decomposing napaliense, Platydesma rostrata, al. 1998, p. 757). These problems are bark of Cheirodendron spp. (Science Pritchardia hardyi, Psychotria further magnified when populations are Panel 2005, p. 18; K. Magnacca, pers. grandiflora, Psychotria hobdyi, few and restricted to a very small comm. 2005; S. Montgomery, pers. Stenogyne kealiae, and Tetraplasandra geographic area, and when the number bisattenuata); comm. 2005a). These tipulid larvae feed of individuals is very small. Populations (3) Nonnative invertebrates such as within the same portion of the with these characteristics face an yellow-jacket wasps prey upon, decomposing host plant area normally increased likelihood of stochastic parasitize, and kill Drosophila sharpi, occupied by D. sharpi larvae during extinction due to changes in and rat predation likely impacts the their development. The effect of this demography, the environment, genetics, larval host plants of D. sharpi; and competition is a reduction in available or other factors (Gilpin and Soule 1986, (4) Rats, owls, and cats are likely host plant material for D. sharpi larvae pp. 24–34). predators on roosting or incubating (Science Panel 2005, p. 18). There have Small, isolated populations often adults, nests, and young of the akekee been no statistical studies conducted on exhibit reduced levels of genetic and akikiki (See Table 2). tipulid larvae competition in Hawaii, variability, which diminishes the These significant threats are ongoing, but it is thought the issue is severe species’ capacity to adapt and respond acting in concert with other threats to based on many observations of very to environmental changes, thereby the species, and are expected to high numbers of tipulid flies present lessening the probability of long-term continue or increase in magnitude and within the host plants of several species persistence (e.g., Barrett and Kohn 1991, intensity into the foreseeable future of Hawaiian Drosophila (S. p. 4; Newman and Pilson 1997, p. 361). without effective management actions to Montgomery, pers. comm. 2008). In The problems associated with small control or eradicate them. laboratory studies, Grimaldi and Jaenike population size and vulnerability to (1984) demonstrated that competition random demographic fluctuations or D. The Inadequacy of Existing between Drosophila larvae and other fly natural catastrophes are further Regulatory Mechanisms larvae can exhaust food resources, magnified by synergistic interactions Currently, there are no Federal, State, which affects both the probability of with other threats, such as those or local laws, treaties, or regulations that larval survival and the body size of discussed above (Factors A–C). specifically conserve or protect the 48 adults, resulting in reduced adult Very small plant populations may species from the threats described in fitness, fecundity, and lifespan. experience reduced reproductive vigor this final rule. The Migratory Bird The nonnative yellow-jacket wasp due to ineffective pollination or Treaty Act (MBTA) (16 U.S.C. 703-712) may impact the akikiki and akekee inbreeding depression. This is is the domestic law that implements the through competition for the same native particularly true for dioecious species, United States’ commitment to four insect food resources. Both the akikiki such as Melicope degeneri and Myrsine international conventions (with Canada, and akekee feed primarily on insects, mezii in this final rule, in which Japan, Mexico, and Russia) for the insect larvae, and spiders (Lepson and staminate (male) and pistillate (female) protection of shared migratory bird Pratt 1997, p. 4; Foster et al. 2000, p. 4). flowers occur on separate individuals. resources. Each of the conventions Wasp colonies in Hawaii do not Isolated individuals have difficulty protects selected species of birds. The ‘‘overwinter’’ (that is, they do not achieving natural pollen exchange, MBTA does not provide protection for become dormant but remain active which decreases the production of any Hawaiian honeycreepers throughout the year), so there is a viable seed. Populations are also (Drepanidinae), including the two greater potential for the wasp colonies impacted by demographic stochasticity, species being addressed in this final to become quite large (Gambino et al. through which populations are skewed rule (akikiki and akekee), because they 1987, p. 169). Yellow-jacket wasp toward either male or female belong to a group not expressly colonies in Hawaii can each produce individuals by chance. mentioned by the Canadian, Mexican, or over a half-million foragers that The following 24 plant species in this Russian treaties (71 FR 50205; August consume tens of millions of arthropods final rule are threatened by the effects 24, 2006). The regulatory mechanisms of (Gambino and Loope 1992, p. 19). While of small population size (fewer than 50 the MBTA are directed at the taking, there is no available data that wild individuals): Astelia waialealae, possession, transportation, sale, documents the foraging habits of Chamaesyce eleanoriae, Cyanea purchase, barter, exportation, and yellow-jacket wasps in the same habitat dolichopoda, C. eleeleensis, C.
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kolekoleensis, C. kuhihewa, Cyrtandra is a reduction in available host plant predation and herbivory on 44 of the paliku, Diellia mannii, Doryopteris material for D. sharpi larvae. This threat species by nonnative pigs, goats, deer, angelica, Dryopteris crinalis var. occurs throughout the range of D. rats, and invertebrates (Factor C); the podosorus, Dubautia kalalauensis, D. sharpi. Laboratory studies have shown threat of extinction due to factors kenwoodii, Lysimachia iniki, L. that competition between Drosophila associated with small numbers of pendens, L. scopulensis, L. venosa, larvae and other fly larvae can exhaust populations and individuals; and Melicope degeneri, Myrsine knudsenii, food resources, which affects both the competition from introduced tipulid M. mezii, Phyllostegia renovans, probability of larval survival and the flies for Drosophila sharpi (Factor E) Psychotria grandiflora, Schiedea body size of adults, resulting in reduced (see Table 2). In addition, the palm attenuata, Tetraplasandra bisattenuata, adult fitness, fecundity, and lifespan. Pritchardia hardyi is threatened by and T. flynnii. We consider these The threat to at least 24 plant species overcollection (Factor B). Cats and owls species threatened by small population in this final rule from limited numbers are likely predators on roosting or size because: of populations and few (less than 50) incubating adults, nests, and young of • No viable seeds or reproduction have individuals is significant and immediate the akekee and akikiki (Factor C). These been observed in Astelia for the following reasons: threats are exacerbated by the species’ waialealae, Melicope degeneri, and (1) These species may experience inherent vulnerability to extinction from Psychotria grandiflora. reduced reproductive vigor due to stochastic events at any time because of • Only five individuals of Myrsine mezii ineffective pollination or inbreeding their endemism, small numbers of are known, and this number has not depression; individuals and populations, and changed over 10 years (N. Tangalin (2) They may experience reduced restricted habitats. 2007b). levels of genetic variability leading to • Cyrtandra paliku, Dubautia diminished capacity to adapt and The Act defines an endangered ‘‘ kalalauensis, Lysimachia iniki, respond to environmental changes, species as any species that is in danger Schiedea attenuata, and thereby lessening the probability of of extinction throughout all or a ’’ Tetraplasandra flynnii are known long-term persistence; and significant portion of its range. We find only from a single population with (3) A single catastrophic event may that each of these endemic species is fewer than 50 individuals (Wagner result in extinction of the species. This presently in danger of extinction et al. 1994, p. 187; K. Wood, pers. threat applies to the entire range of each throughout its entire range, based on the comm. 1995; Marr and Bohm 1997, species. immediacy, severity, and scope of the pp. 270–271; S. Perlman, pers. The nonnative yellow-jacket wasp is threats described above. Based on our comm. 2003b; Baldwin and Carr believed to be a potential threat to the analysis, we have no reason to believe 2005, p. 261; S. Perlman 2006 and akekee and akikiki through competition that population trends for any of the 2007). for the same native insect food species addressed in this final rule will • Diellia mannii is known from only one resources, however we have no improve, nor will the effects of current individual in the wild (Carr 1998, p. evidence indicating that competition threats acting on the species be 8; HBMP 2007), with the nonnative yellow-jacket wasp ameliorated in the foreseeable future. • Research on Pittosporum species poses a significant or immediate threat Therefore, on the basis of the best suggests that small populations are to the akikiki or akekee at this time. available scientific and commercial susceptible to loss of genetic information, we are listing the following Conclusion and Determination variation through inbreeding and 48 species as endangered under the Act: drift (C. Gemmill, Center of We have carefully assessed the best the plants Astelia waialealae, Canavalia Biodiversity and Ecology Research, scientific and commercial information napaliensis, Chamaesyce eleanoriae, pers. comm. 2009), available regarding threats to each of the Chamaesyce remyi var. kauaiensis, • Six species, Cyanea dolichopoda, C. 48 Kauai species. We find that all of Chamaesyce remyi var. remyi, eleeleensis, C. kolekoleensis, C. these species face immediate and Charpentiera densiflora, Cyanea kuhihewa, Dubautia kenwoodii, and significant threats throughout their dolichopoda, Cyanea eleeleensis, Lysimachia venosa, have not been ranges from the present destruction and Cyanea kolekoleensis, Cyanea confirmed to persist in the wild. modification of their habitats, primarily kuhihewa, Cyrtandra oenobarba, None of these species are in storage from feral ungulates and nonnative Cyrtandra paliku, Diellia mannii, or propagation, but individuals plants, and from the threatened Doryopteris angelica, Dryopteris crinalis familiar with these species believe destruction and modification of their var. podosorus, Dubautia imbricata ssp. they may possibly remain extant habitats from hurricanes (compounded imbricata, Dubautia kalalauensis, and that much of their suitable because of their small population sizes Dubautia kenwoodii, Dubautia habitat (lowland mesic, lowland and limited distribution), landslides, plantaginea ssp. magnifolia, Dubautia wet, and wet cliff) on Kauai remains and flooding. In addition, we are waialealae, Geranium kauaiense, to be surveyed (Wood 2006, p. 11; concerned about the effects of projected Keysseria erici, Keysseria helenae, S. Perlman 2007; S. Perlman and K. climate change, particularly rising Labordia helleri, Labordia pumila, Wood, pers. comm. 2007; D. temperatures and the increased Lysimachia daphnoides, Lysimachia Burney, NTBG, pers. comm. 2009). likelihood of malarial transmission. iniki, Lysimachia pendens, Lysimachia However, we acknowledge that there is scopulens, Lysimachia venosa, Melicope Summary of Other Natural or Manmade limited information on the specific degeneri, Melicope paniculata, Melicope Factors Affecting Their Continued nature of potential impacts from climate puberula, Myrsine knudsenii, Myrsine Existence change to the species included in this mezii, Phyllostegia renovans, The threat to Drosophila sharpi from final rule (Factor A). Pittosporum napaliense, Platydesma nonnative tipulid flies is immediate and There is also immediate and rostrata, Pritchardia hardyi, Psychotria significant because the larvae of significant threat of disease or grandiflora, Psychotria hobdyi, nonnative tipulid flies feed on the same predation, including avian diseases Schiedea attenuata, Stenogyne kealiae, host plants occupied by the larvae of D. such as malaria that impact the akikiki Tetraplasandra bisattenuata, and sharpi, and the effect of this competition and akekee; widespread impacts of Tetraplasandra flynii; the birds, akekee
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(Loxops caeruleirostris) and akikiki For the 48 species in this rule, Federal with the Act, on which are found those (Oreomystis bairdi); and the insect agency actions that may require physical or biological features Drosophila sharpi. consultation as described in the (a) Essential to the conservation of the Under the Act and our implementing preceding paragraph include, but are species and regulations, a species may warrant not limited to, actions within the (b) Which may require special listing if it is threatened or endangered jurisdiction of the Natural Resources management considerations or throughout all or a significant portion of Conservation Service, Fish and Wildlife protection; and its range. Each of the 48 endemic Kauai Service, and branches of the Department (2) Specific areas outside the species in this listing rule is highly of Defense (DOD). geographical area occupied by a species restricted in its range, and the threats The Act and its implementing at the time it is listed, upon a occur throughout its range. Therefore, regulations set forth a series of general determination that such areas are we assessed the status of each species prohibitions and exceptions that apply essential for the conservation of the throughout its entire range. In each case, to all endangered wildlife and plants. species. Conservation, as defined under the threats to the survival of these The prohibitions, codified at 50 CFR section 3 of the Act, means the use of species occur throughout the species’ 17.21 and 17.61, apply. These all methods and procedures that are range and are not restricted to any prohibitions, in part, make it illegal for any person subject to the jurisdiction of necessary to bring any endangered or particular portion of that range. threatened species to the point at which Accordingly, our assessment and the United States to import or export, take, possess, transport in interstate or the measures provided under the Act determination applies to each species are no longer necessary. throughout its entire range. foreign commerce in the course of a commercial activity, sell or offer for sale Critical habitat receives protection Available Conservation Measures in interstate or foreign commerce, or under section 7 of the Act through the remove and reduce to possession listed prohibition against Federal agencies Conservation measures provided to carrying out, funding, or authorizing the species listed as endangered or wildlife species from areas under Federal jurisdiction. In addition, for destruction or adverse modification of threatened under the Act include critical habitat. Section 7(a)(2) of the Act recognition, recovery actions, plants listed as endangered, the Act prohibits the malicious damage or requires consultation on Federal actions requirements for Federal protection, and that may affect critical habitat. The prohibitions against certain activities. destruction on areas under Federal jurisdiction and the removal, cutting, designation of critical habitat does not Recognition through listing results in digging up, or damaging or destroying of affect land ownership or establish a public awareness and conservation by such plants in knowing violation of any refuge, wilderness, reserve, preserve, or Federal, State, and local agencies, State law or regulation, including State other conservation area. Such private organizations, and individuals. criminal trespass law. Certain designation does not allow the The Act encourages cooperation with exceptions to the prohibitions apply to government or public to access private the States and requires that recovery agents of the Service and State lands. Such designation does not actions be carried out for all listed conservation agencies. Federal listing of require implementation of restoration, species. The protection measures the species included in this rule will recovery, or enhancement measures by required of Federal agencies and the automatically invoke State listing under the private landowner. Where a prohibitions against certain activities Hawaii’s Endangered Species law and landowner seeks or requests Federal involving listed animals and plants are supplement the protection available agency funding or authorization that discussed, in part, below. under other State laws. may affect a listed species or critical Section 7(a) of the Act, as amended, We may issue permits to carry out habitat, the consultation requirements of requires Federal agencies to evaluate otherwise prohibited activities section 7(a)(2) of the Act would apply, their actions with respect to any species involving threatened or endangered but even in the event of a destruction or that is proposed or listed as endangered wildlife and plant species under certain adverse modification finding, the or threatened with respect to its critical circumstances. Regulations governing Federal action agency’s and the habitat, if any is designated. Regulations permits are codified at 50 CFR 17.22 applicant’s obligation is not to restore or implementing this interagency and 17.62 for endangered wildlife and recover the species, but to implement cooperation provision of the Act are plants, respectively. Such permits are reasonable and prudent alternatives to codified at 50 CFR part 402. Section available for scientific purposes and to avoid destruction or adverse 7(a)(1) of the Act mandates that all enhance the propagation and survival of modification of critical habitat. Federal agencies shall utilize their the species and for incidental take in To be included in a critical habitat authorities in furtherance of the connection with otherwise lawful designation, habitat within the purposes of the Act by carrying out activities. Requests for copies of the geographic area occupied by the species programs for the conservation of regulations regarding listed species and at the time it was listed must contain the endangered and threatened species inquiries about prohibitions and permits physical and biological features that are listed in accordance with section 4 of may be addressed to U.S. Fish and essential to the conservation of the the Act. Section 7(a)(2) of the Act Wildlife Service, Ecological Services, species, and will be included only if requires Federal agencies to ensure that Eastside Federal Complex, 911 N.E. 11th those features may require special activities they authorize, fund, or carry Avenue, Portland, OR 97232-4181 management considerations or out are not likely to jeopardize the (telephone 503-231-6158; facsimile 503- protection. Critical habitat designations continued existence of a listed species 231-6243). identify, to the extent known using the or result in destruction or adverse best scientific data available, habitat modification of critical habitat. If a Critical Habitat areas that provide essential life cycle Federal action may affect the continued Critical habitat is defined in section 3 needs of the species (i.e., areas on which existence of a listed species or its of the Act as: are found those physical and biological critical habitat, the responsible Federal (1) The specific areas within the features essential to the conservation of agency must enter into consultation geographical area occupied by a species, the species). Under the Act and our with the Service. at the time it is listed in accordance implementing regulations, we can
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designate critical habitat in areas information at the time of the agency this ongoing threat, we have determined outside the geographical area occupied action. Federally funded or permitted that the designation of critical habitat by the species at the time it is listed projects affecting listed species outside for P. hardyi is not prudent in only when we determine that those their designated critical habitat areas accordance with the Act and its areas are essential for the conservation may still result in jeopardy findings in implementing regulations. of the species and that designation some cases. Similarly, critical habitat With the exception of Pritchardia limited to those areas occupied at the designations made on the basis of the hardyi, we find that the designation of time of listing would be inadequate to best available information at the time of critical habitat for each of the other 47 ensure the conservation of the species. designation will not control the species addressed in this rule will be Section 4 of the Act requires that we direction and substance of future beneficial by serving to focus designate critical habitat on the basis of recovery plans, habitat conservation conservation efforts on the restoration the best scientific and commercial data plans, or other species conservation and maintenance of ecosystem functions available. Further, our Policy on planning efforts if any new information that are essential for attaining the Information Standards Under the available to these planning efforts calls species’ recovery and long-term Endangered Species Act, published in for a different outcome. viability. The designation of critical the Federal Register on July 1, 1994 (59 Section 4(a)(3) of the Act, as habitat also serves to inform FR 34271), (Section 515 of the Treasury amended, and our implementing management and conservation decisions and General Government regulations (50 CFR 424.12) require that, by identifying any additional physical Appropriations Act for Fiscal Year 2001 to the maximum extent prudent and and biological features of the ecosystem (Pub. L. 106-554; H.R. 5658)), and our determinable, the Secretary designate that may be essential for the associated Information Quality critical habitat at the time a species is conservation of certain species (e.g., the Guidelines provide criteria, establish determined to be endangered or availability of sufficient arthropod prey procedures, and provide guidance to threatened. Service regulations (50 CFR for the akikiki and akekee, or hummocks ensure that our decisions are based on 424.12(a)(1)) state that designation of in bog systems for Astelia waialeale). the best scientific data available. They critical habitat is not prudent when one We have therefore determined that require our biologists, to the extent or both of the following situations exist: designation of critical habitat is prudent consistent with the Act and with the use (1) The species is threatened by taking for the following 47 Kauai species: (1) of the best scientific data available, to or other human activity, and Plants—Astelia waialealae, Canavalia use primary and original sources of identification of critical habitat can be napaliensis, Chamaesyce eleanoriae, information as the basis for expected to increase the degree of threat Chamaesyce remyi var. kauaiensis, recommendations to designate critical to the species, or (2) such designation of Chamaesyce remyi var. remyi, habitat. critical habitat would not be beneficial Charpentiera densiflora, Cyanea When we are determining those areas to the species. dolichopoda, Cyanea eleeleensis, that should be designated as critical In considering the designation of Cyanea kolekoleensis, Cyanea habitat, our primary source of critical habitat for each of the 48 Kauai kuhihewa, Cyrtandra oenobarba, information is generally the information species, we have determined that there Cyrtandra paliku, Diellia mannii, developed during the listing process for is one species, the palm Pritchardia Doryopteris angelica, Dryopteris crinalis the species. Additional information hardyi, for which the designation of var. podosorus, Dubautia imbricata ssp. sources may include the recovery plan critical habitat is not prudent. Rare palm imbricata, Dubautia kalalauensis, for the species, articles in peer-reviewed trees are highly desirable to collectors, Dubautia kenwoodii, Dubautia journals, conservation plans developed and there is an active market for the plantaginea ssp. magnifolia, Dubautia by States and counties, scientific status seeds and seedlings of rare palms, waialealae, Geranium kauaiense, surveys and studies, biological including those of P. hardyi, through Keysseria erici, Keysseria helenae, assessments, or other unpublished internet sales and online auctions Labordia helleri, Labordia pumila, materials and expert opinion or (GardenGuides.com 2007; Lysimachia daphnoides, Lysimachia personal knowledge. Rarepalmseeds.com 2007; South Coast iniki, Lysimachia pendens, Lysimachia Habitat is often dynamic, and species Palms 2007; Kapoho Palms 2007; J.D. scopulensis, Lysimachia venosa, may move from one area to another over Anderson Nursery 2007; Jungle Music Melicope degeneri, Melicope paniculata, time. Furthermore, we recognize that Palms and Cycads 2007; Tropical Melicope puberula, Myrsine knudsenii, critical habitat designated at a particular Gardens of Maui 2007). Seeds and entire Myrsine mezii, Phyllostegia renovans, point in time may not include all of the plants of P. hardyi have been illegally Pittosporum napaliense, Platydesma habitat areas that we may later removed from an outplanting site in the rostrata, Psychotria grandiflora, determine to be necessary for the past (A. Kyono, pers. comm. 2000; R. Psychotria hobdyi, Schiedea attenuata, recovery of the species. For these Nishek, pers. comm. 2007), and we have Stenogyne kealiae, Tetraplasandra reasons, a critical habitat designation evidence of vandalism and illegal bisattenuata, and Tetraplasandra flynii; does not signal that habitat outside the collection of other species of (2) Animals—akekee, akikiki, and designation is unimportant or may not endangered Pritchardia palms on Kauai Drosophila sharpi. be required for recovery. (Johnson 1996, pp. 16–17; R. Nishek, Areas that are important to the pers. comm. 2007). The designation of Methods conservation of the species, but are critical habitat for P. hardyi would As required by section 4(b) of the Act, outside the critical habitat designation, require us to identify the geographic we used the best scientific data will continue to be subject to areas where the species occurs, thereby available to designate critical habitat. conservation actions implemented by increasing the species’ vulnerability to We began our analysis by evaluating the the Service and other Federal agencies further unauthorized and illegal following data sources: under section 7(a)(1) of the Act. They collection. Since collecting and • The known locations of the 47 species, may also be subject to the regulatory vandalism is identified as a threat including site-specific species protections afforded by the section specific to P. hardyi in our threats information from the HBMP 7(a)(2) jeopardy standard, as determined analysis, and the designation of critical database (HBMP 2007) and our own on the basis of the best available habitat for this species would exacerbate rare plant database;
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• Species information from the plant constituent elements (PCEs) laid out in space within the appropriate habitats for database housed at NTBG; the appropriate quantity and spatial population growth and expansion, as • The Nature Conservancy’s Ecoregional arrangement for the conservation of the well as to maintain the historical Assessment of the Hawaiian High species. These include, but are not geographical and ecological distribution Islands (2006), and ecosystem maps limited to: of each species. In many cases, due to (2007); (1) Space for individual and our limited knowledge of the specific • Color mosaic 1:19,000 scale digital population growth and for normal life-history requirements for these aerial photographs for the Hawaiian behavior; species that are little-studied and occur Islands (April to May 2005); (2) Food, water, air, light, minerals, or • in remote or inaccessible areas, the Island-wide Geographic Information other nutritional or physiological generalized description of the essential System (GIS) coverage, e.g., Gap requirements; physical and biological features that Analysis Program (GAP) vegetation (3) Cover or shelter; provide for the successful function of data 2005; (4) Sites for breeding, reproduction, the ecosystem is the best—and in many • 1:24,000 scale digital raster graphics of rearing (or development) of offspring, cases the only—scientific information USGS topographic quadrangles; germination, or seed dispersal; and • Geospatial data sets associated with available. (5) Habitats that are protected from parcel data from Kauai County Table 3 identifies the PCEs of a disturbance or are representative of the (2005); functioning ecosystem for each of the historical, geographical, and ecological • Designated critical habitat for listed ecosystem types identified in this final distributions of a species. species on the island of Kauai (68 rule; these are termed ‘‘ecosystem-level We derive the specific PCEs for each FR 9116, February 27, 2003); PCEs.’’ • Recent biological surveys and reports; of the 47 species based on their Each species identified in this rule and biological needs as described below and • Discussions with qualified individuals the physical and biological features that requires the ecosystem-level PCEs for familiar with these species and support the successful functioning of each ecosystem in which it occurs, as ecosystems (HBMP 2007; TNCH the ecosystem upon which they depend. identified in Table 4. The ecosystem- 2007; NTBG 2007). As each species is dependent upon a level PCEs are defined by elevation, Based upon the best scientific data functioning ecosystem to provide its annual levels of precipitation, substrate available, we determined that the 47 fundamental life requirements, such as type and slope, as well as the species addressed in this final rule a certain soil type, minimum level of characteristic native plant genera that occupy or require for their conservation rainfall, or conditions conducive to are found in the canopy, subcanopy, one or more of the six ecosystems supporting the presence of a certain and understory levels of the vegetative described in this rule: lowland mesic species of plant for foraging or larval community, where applicable. Where (TNC 2006b), lowland wet (TNC 2006c), development, we considered the further information is available that montane mesic (TNC 2006e), montane physical and biological features of the identifies specific life-history wet (TNC 2006f), dry cliff (TNC 2006a), ecosystems described in this rule to be requirements for some species, PCEs and wet cliff (TNC 2006d). PCEs for each species. relating to these requirements are The PCEs collectively provide the described separately as ‘‘species-specific Physical and Biological Features suite of environmental conditions PCEs,’’ which are also identified in In accordance with section 3(5)(A)(i) within each ecosystem essential to Table 4. In summary, the PCEs for each and 4(b)(1)(A) of the Act and the meeting the requirements of each species are derived from the PCEs regulations at 50 CFR 424.12, in species, including the appropriate necessary for the functioning of its determining which occupied areas to microclimatic conditions for associated ecosystem(s), in combination designate as critical habitat, we consider germination and growth of the plants with any additional species-specific those physical and biological features (e.g., light availability, soil nutrients, requirements shown in Table 4. The essential to the conservation of the hydrologic regime, temperature); habitat ecosystem-level PCEs identified in species that may require special for shelter, foraging, nesting, and raising Table 4 for each species are presented management considerations or young in the case of the akikiki and in detail in Table 3; Table 3 and Table protection. We consider the physical akekee; larval host plants in the case of 4 read together fully describe all of the and biological features to be the primary the picture-wing fly; and in all cases, PCEs for each species.
TABLE 3—ECOSYSTEM-LEVEL PRIMARY CONSTITUENT ELEMENTS (PCES) FOR EACH SPECIES (READ IN ASSOCIATION WITH TABLE 4)
Primary Constituent Elements One or More of these Associated Annual Native Plants (by Genus) Ecosystem Elevation Precipitation Substrate Canopy Subcanopy Understory
Lowland Mesic1 < 3,000 ft 50-75 in shallow soils, Acacia, Dodonaea, Carex, (< 914 m) (127-190 cm) little to no herba- Diospyros, Freycinetia, Dicranopteris, ceous layer Metrosideros, Leptecophyllya, Diplazium, Myrsine, Melanthera, Elaphoglossum, Pouteria, Osteomeles, Peperomia Santalum Pleomele, Psydrax
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TABLE 3—ECOSYSTEM-LEVEL PRIMARY CONSTITUENT ELEMENTS (PCES) FOR EACH SPECIES (READ IN ASSOCIATION WITH TABLE 4)—Continued
Primary Constituent Elements One or More of these Associated Annual Native Plants (by Genus) Ecosystem Elevation Precipitation Substrate Canopy Subcanopy Understory
Lowland Wet2 < 3,000 ft > 75 in clays, ashbeds, Antidesma, Cibotium, Alyxia, Cyrtandra, (< 914 m) (> 190 cm) deep well- Metrosideros, Claoxylon, Dicranopteris, drained soils, Myrsine, Kadua, Diplazium, lowland bogs Pisonia, Melicope Machaerina, Psychotria Microlepia,
Montane Mesic3 3,000-5,243 ft 50-75 in weathered aa Acacia, Cheirodendron, Bidens, (914-1,598 m) (127-190 cm) lava, rocky Metrosideros, Coprosma, Dryopteris, mucks, thin silty Psychotria, Kadua, Ilex, Leptecophylla, loams, deep Tetraplasandra, Myoporum, Poa, Scaevola, volcanic ash Zanthoxylum Myrsine Sophora soils
Montane Wet4 3,000-5,243 ft > 75 in well-developed Acacia, Broussaisia, Ferns, Carex, (914-1,598 m) (> 190 cm) soils, montane Charpentiera, Cibotium, Coprosma, bogs Cheirodendron, Eurya, Ilex, Leptecophylla, Metrosideros Myrsine Oreobolus, Rhynchospora, Vaccinium
Dry Cliff5 unrestricted < 75 in > 65° slope, rocky none Antidesma, Bidens, (< 190 cm) talus Chamaesyce, Eragrostis, Diospyros, Melanthera, Dodonaea Schiedea
Wet Cliff6 unrestricted > 75 in > 65° slope, none Broussaisia, Ferns, (> 190 cm) shallow soils, Cheirodendron, Bryophytes, weathered lava Leptecophylla, Coprosma, Metrosideros Dubautia, Kadua, Peperomia 1The PCEs for species in the lowland mesic ecosystem apply to the following critical habitat units: Kauai–Lowland Mesic Units 1, 2, 3, 4, and 5. 2The PCEs for species in the lowland wet ecosystem apply to the following critical habitat units: Kauai–Lowland Wet Units 1, 2, 3, 4, 5, and 6. 2The PCEs for species in the lowland wet ecosystem apply to the following critical habitat units: Kauai–Lowland Wet Units 1, 2, 3, 4, 5, and 6. 3The PCEs for species in the montane mesic ecosystem apply to the following critical habitat units: Kauai–Montane Mesic Units 1, 2, and 3. 4The PCEs for species in the montane wet ecosystem apply to the following critical habitat units: Kauai–Montane Wet Units 1, 2, and 3. 5The PCEs for species in the dry cliff ecosystem apply to the following critical habitat units: Kauai–Dry Cliff Units 1 and 2. 6The PCEs for species in the wet cliff ecosystem apply to the following critical habitat units: Kauai–Wet Cliff Units 1, 2, and 3.
TABLE 4 - PRIMARY CONSTITUENT ELEMENTS FOR THE KAUAI SPECIES ARE A COMBINATION OF THE ECOSYSTEM-LEVEL PCES (SEE TABLE 3) FOR THE APPLICABLE ECOSYSTEM(S) AS WELL AS SPE- CIES-SPECIFIC PCES, IF ANY ARE IDENTIFIED
Ecosystem-level PCEs Species-specific Species Lowland Montane Montane PCEs Mesic Lowland Wet Mesic Wet Dry Cliff Wet Cliff
Plants
Astelia waialealae X hummocks in bogs
Canavalia napaliensis X
Chamaesyce eleanoriae X X
Chamaesyce remyi var. X X kauaiensis
Chamaesyce remyi var. X X X X X remyi
Charpentiera densiflora X X
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TABLE 4 - PRIMARY CONSTITUENT ELEMENTS FOR THE KAUAI SPECIES ARE A COMBINATION OF THE ECOSYSTEM-LEVEL PCES (SEE TABLE 3) FOR THE APPLICABLE ECOSYSTEM(S) AS WELL AS SPE- CIES-SPECIFIC PCES, IF ANY ARE IDENTIFIED—Continued
Ecosystem-level PCEs Species-specific Species Lowland Montane Montane PCEs Mesic Lowland Wet Mesic Wet Dry Cliff Wet Cliff
Cyanea dolichopoda X
Cyanea eleeleensis X
Cyanea kolekoleensis X
Cyanea kuhihewa X
Cyrtandra oenobarba X X
Cyrtandra paliku X
Diellia mannii X
Doryopteris angelica X
Dryopteris crinalis var. X podosorus
Dubautia imbricata ssp. X imbricata
Dubautia kalalauensis X
Dubautia kenwoodii X
Dubautia plantaginea ssp. X magnifolia
Dubautia waialealae X bogs
Geranium kauaiense X bogs
Keysseria erici X bogs
Keysseria helenae X bogs
Labordia helleri X X X X
Labordia pumila X bogs
Lysimachia daphnoides X hummocks in bogs
Lysimachia iniki X
Lysimachia pendens X
Lysimachia scopulensis X
Lysimachia venosa X
Melicope degeneri X
Melicope paniculata X
Melicope puberula X X
Myrsine knudsenii X
Myrsine mezii X X
Phyllostegia renovans X X
Pittosporum napaliense X
Platydesma rostrata X X X X X
Psychotria grandiflora X X
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TABLE 4 - PRIMARY CONSTITUENT ELEMENTS FOR THE KAUAI SPECIES ARE A COMBINATION OF THE ECOSYSTEM-LEVEL PCES (SEE TABLE 3) FOR THE APPLICABLE ECOSYSTEM(S) AS WELL AS SPE- CIES-SPECIFIC PCES, IF ANY ARE IDENTIFIED—Continued
Ecosystem-level PCEs Species-specific Species Lowland Montane Montane PCEs Mesic Lowland Wet Mesic Wet Dry Cliff Wet Cliff
Psychotria hobdyi X
Schiedea attenuata X
Stenogyne kealiae X X X
Tetraplasandra X X bisattenuata
Tetraplasandra flynnii X X X
Animals
Akekee X X arthropod prey
Akikiki X X arthropod prey
Drosophila sharpi X X larval host plants Cheirodendron sp., Tetraplasandra sp.
Many of the species addressed in this Some examples may help to clarify it occupies, as described in Table 3 for final rule occur in more than one our approach to describing the PCEs for the montane mesic and montane wet ecosystem. The PCEs for these species each individual species. To determine ecosystems, as well as the larval host are described separately for each the PCEs for the plant Cyanea plants Cheirodendron and ecosystem in which they occur, because dolichopoda, one would review Table 4 Tetraplasandra. Table 4 is read in a each species requires a different suite of and observe that the PCEs for C. similar fashion in conjunction with environmental conditions depending dolichopoda are provided by the Table 3 to describe the PCEs for each of upon the ecosystem in which it occurs. ecosystem-level PCEs for the wet cliff the 47 species for which we are For example, Stenogyne kealiae requires ecosystem. Referring back to Table 3 designating critical habitat in this final a different level of annual precipitation, indicates that the PCEs for the wet cliff rule. ecosystem include no restrictions on occurs on different soil types and Criteria Used to Identify Critical elevation; annual precipitation greater slopes, and is associated with different Habitat native plant species in the dry cliff than 75 inches (190.5 cm); shallow soils ecosystem, compared to those physical or weathered lava at greater than 65 We considered several factors in determining the specific boundaries for and biological features in the lowland degree slope; no canopy vegetation; subcanopy that includes native plants in critical habitat for these 47 species. We wet and montane mesic ecosystems the genera Broussaisia, Cheirodendron, are designating critical habitat on lands where it also occurs. All of the primary Leptecophylla, and Metrosideros; and an that contain the physical and biological constituent elements described for each understory of native plants including features essential to conserving multiple ecosystem in which a species occurs are ferns, bryophytes, and representatives of species, based on their shared essential in maintaining the species’ the genera Coprosma, Dubautia, Kadua, dependence on the functioning geographical and ecological distribution and Peperomia. ecosystems they have in common. across the different ecosystem types in As there are no species-specific PCEs Because each of the six ecosystems which it occurs. The PCEs are also identified for C. dolichopoda, and this addressed in this rule does not form a essential in retaining genetic plant is found only in the wet cliff single contiguous area, the ecosystems representation that allows this species ecosystem, the ecosystem-level PCEs for are divided into 22 geographic subunits to successfully adapt to different the wet cliff ecosystem describe the that we refer to as ‘‘sections.’’ environmental conditions in various PCEs for C. dolichopoda in their Compliance with Federal Register native ecosystems. Although these entirety. publication requirements required that species are adaptable enough to occur in As another example, Table 4 indicates we subdivide the ecosystem areas multiple native ecosystems, their that the PCEs for the picture-wing fly presented here into smaller subunits so declining abundance in light of ongoing Drosophila sharpi include the they could be correlated with the threats is evidence that they are not ecosystem-level PCEs for the montane existing critical habitat units previously broad habitat generalists and are unable mesic and montane wet ecosystems, and published in the Code of Federal to persist in highly altered habitats. also that this species has an additional Regulations (CFR). This was necessary Based on the best available information, species-specific PCE, the presence of because much of the critical habitat for functioning native ecosystems are larval host plants in the genera the plant species in this final rule necessary to provide the fundamental Cheirodendron and Tetraplasandra. The overlies critical habitat already biological requirements for all of these PCEs for D. sharpi are thus composed of designated for other plants on the island species. the PCEs for each of the two ecosystems of Kauai. The reference to ecosystem
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‘‘sections’’ in this rule is primarily because they provide the physical and areas within each unit are essential to intended to emphasize conservation biological features necessary for the provide for the expansion of this species focused on the contiguous ecosystem expansion and/or reestablishment of to viable population numbers and to areas of interest in this final rule. wild populations within the historic maintain its historical geographical and However, especially for purposes of range. We are designating unoccupied ecological distribution. section 7 consultation, it must be habitat with no known occupied habitat We used current and historical recognized that multiple critical habitat for six of the plant species in this final species location information to develop units actually make up these sections. rule: Cyanea dolichopoda, C. preliminary critical habitat boundaries Further details on this approach are eleeleensis, C. kolekoleensis, C. (polygons) in each of the 6 ecosystems presented under the ‘‘Critical Habitat kuhihewa, Dubautia kenwoodii, and that individually and collectively Designation,’’ section below. Lysimachia venosa. Although these provide for the conservation of the 47 The critical habitat we are designating species have not recently been species addressed in this rule. We in this final rule includes areas documented at their last observed superimposed the polygons over digital currently occupied by a species in a locations, the designation of unoccupied topographic maps of the island of Kauai particular ecosystem, as well as areas critical habitat is essential for their and and further evaluated the results. that may be currently unoccupied by recovery for the reasons stated above. We removed land areas that were that species within that ecosystem. Critical habitat boundaries were identified as highly degraded from the Because of the extremely remote and delineated in a manner that will inaccessible nature of the area, surveys promote the recovery and conservation designated critical habitat units, and we are relatively infrequent and may be of these species by protecting the used natural or manmade features (e.g., limited in scope. Therefore, it is functioning ecosystems on which they ridge lines, valleys, streams, coastlines, difficult to determine the presence or depend. roads, obvious land features) to absence of individual representatives of With the exception of the six plant delineate the critical habitat boundaries. a rare species with certainty. Occupied species described above, all of the The critical habitat areas described areas provide the physical and critical habitat units in these ecosystems below constitute our best assessment of biological features essential to the contain some areas that are occupied by the physical and biological features conservation of the species that occur a species and some areas that are essential for the recovery and there by providing for the successful currently unoccupied, but have been conservation of the 47 species and the functioning of the ecosystem on which determined to be essential for the habitat that are essential for population they depend. Because of the small conservation of that species. As reestablishment or expansion. The population sizes, few numbers of discussed above, because of the small approximate size of each of the 22 individuals, and reduced geographic numbers of individuals or low critical habitat ecosystem sections and range of each of the 47 species for which population sizes, each of the 47 species the status of their land ownership is we are designating critical habitat in requires suitable habitat and space for identified in Table 5. The species that this rule, we have determined that the expansion of existing populations currently occupy each of the 22 sections limiting critical habitat designation to for recovery. For example, although are identified by ecosystem type in occupied areas would be inadequate to Platydesma rostrata is found in multiple Table 6, which also identifies the provide for their conservation. critical habitat units in 5 ecosystem sections that have been designated as Areas not known to be occupied (i.e., types, only approximately 100 unoccupied habitat for the 6 species that unoccupied areas) are essential for the individuals comprise this entire have not been observed in the wild at conservation and recovery of the species distribution. Therefore, the unoccupied their last documented locations.
TABLE 5.—CRITICAL HABITAT FOR 47 KAUAI SPECIES (TOTALS MAY NOT SUM DUE TO ROUNDING)
Land ownership (acres) Size of Size of Critical habitat area section in section in State Private Corresponding critical habitat units and maps in the Code acres hectares of Federal Regulations (CFR)
Kauai—Lowland Mesic
—Section 1 2,007 812 2,007 0 Plants: 50 CFR 17.99, Unit 11, Map 66a
—Section 2 379 154 379 0 Plants: 50 CFR 17.99, Unit 11, Map 66a
—Section 3 124 50 124 0 Plants: 50 CFR 17.99, Unit 11, Map 66a
—Section 4 81 33 81 0 Plants: 50 CFR 17.99, Unit 11, Map 66a
—Section 5 37 15 0 37 Plants: 50 CFR 17.99, Unit 7, Map 23a
TOTAL Lowland 2,628 1,064 2,590 37 Mesic
Kauai—Lowland Wet
—Section 1 1,164 471 117 1,047 Plants: 50 CFR 17.99, Unit 11, Map 70a; Unit 20, Map 217c.
—Section 2 172 70 172 0 Plants: 50 CFR 17.99, Unit 11, Map 70a
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TABLE 5.—CRITICAL HABITAT FOR 47 KAUAI SPECIES (TOTALS MAY NOT SUM DUE TO ROUNDING)—Continued
Land ownership (acres) Size of Size of Critical habitat area section in section in State Private Corresponding critical habitat units and maps in the Code acres hectares of Federal Regulations (CFR)
—Section 3 756 306 0 756 Plants: 50 CFR 17.99, Unit 11, Map 70a
—Section 4 591 239 10 581 Plants: 50 CFR 17.99, Unit 11, Map 70a
—Section 5 1,541 624 442 1,099 Plants: 50 CFR 17.99, Unit 10, Map 36a
—Section 6 789 319 134 655 Plants: 50 CFR 17.99, Unit 10, Map 36a
TOTAL Lowland Wet 5,013 2,029 875 4,138
Kauai—Montane Mesic
—Section 1 2,421 980 2,421 0 Plants: 50 CFR 17.99, Unit 11, Map 70c. Akekee and Akikiki: 50 17.95(b), Unit 1 – Montane Mesic. Picture- wing fly: 50 CFR 17.95(i), Unit 1 – Montane Mesic.
—Section 2 376 152 376 0 Plants: 50 CFR 17.99, Unit 11, Map 70c; Unit 21, map 217d. Akekee and Akikiki: 50 CFR 17.95(b), Unit 2 – Montane Mesic. Picture-wing fly: 50 CFR 17.95(i), Unit 2 – Montane Mesic.
—Section 3 138 56 138 0 Plants: 50 CFR 17.99, Unit 22, Map 217e. Akekee and Akikiki: 50 CFR 17.95(b), Unit 3 – Montane Mesic. Picture-wing fly: 50 CFR 17.95(i), Unit 3 – Montane Mesic.
TOTAL Montane 2,935 1,188 2,935 0 Mesic
Kauai—Montane Wet
—Section 1 13,055 5,283 12,628 427 Plants: 50 CFR 17.99, Unit 10, Map 35a; Unit 11, Map 74a; Unit 23, Map 217f; Unit 24, Map 217g, Unit 25, Map 217h. Akekee and Akikiki: 50 CFR 17.95(b), Unit 4 – Montane Wet. Picture-wing fly: 50 CFR 17.95(i), Unit 4 – Montane Wet.
—Section 2 790 320 790 0 Plants: 50 CFR 17.99, Unit 11, Map 64a. Akekee and Akikiki: 50 CFR 17.95(b), Unit 5 – Montane Wet. Picture-wing fly: 50 CFR 17.95(i), Unit 5 – Montane Wet.
—Section 3 413 167 156 257 Plants: 50 CFR 17.99, Unit 11, Map 64a. Akekee and Akikiki: 50 CFR 17.95(b), Unit 6 – Montane Wet. Picture-wing fly: 50 CFR 17.95(i), Unit 6 – Montane Wet.
TOTAL Montane Wet 14,258 5,770 13,574 684
Kauai—Dry Cliff
—Section 1 404 163 404 0 Plants: 50 CFR 17.99, Unit 11, Map 67a.
—Section 2 309 125 309 0 Plants: 50 CFR 17.99, Unit 11, map 67a.
TOTAL Dry Cliff 713 288 713 0
Kauai—Wet Cliff
—Section 1 190 77 190 0 Plants: 50 CFR 17.99, Unit 11, Map 70b.
—Section 2 784 317 778 7 Plants: 50 CFR 17.99, Unit 10, Map 36b; Unit 18, Map 217a.
—Section 3 61 24 8 53 Plants: 50 CFR 17.99, Unit 4, Map 5a; Unit 19, Map 217b.
TOTAL Wet Cliff 1,035 418 976 60
TOTAL ALL 26,582 10,757 21,666 4,918 SECTIONS
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TABLE 6.- SPECIES FOR WHICH CRITICAL HABITAT IS DESIGNATED IN EACH ECOSYSTEM
Critical Habitat Units Species Lowland Montane Mesic Lowland Wet Mesic Montane Wet Dry Cliff Wet Cliff
Plants
Astelia waialealae X
Canavalia napaliensis X
Chamaesyce eleanoriae X X
Chamaesyce remyi var. kauaiensis X X
Chamaesyce remyi var. remyi X X X X X
Charpentiera densiflora X X
Cyanea dolichopoda* X
Cyanea eleeleensis* X
Cyanea kolekoleensis* X
Cyanea kuhihewa* X
Cyrtandra oenobarba X X
Cyrtandra paliku X
Diellia mannii X
Doryopteris angelica X
Dryopteris crinalis var. podosorus X
Dubautia imbricata ssp. imbricata X
Dubautia kalalauensis X
Dubautia kenwoodii* X
Dubautia plantaginea ssp. magnifolia X
Dubautia waialealae X
Geranium kauaiense X
Keysseria erici X
Keysseria helenae X
Labordia helleri X X X X
Labordia pumila X
Lysimachia daphnoides X
Lysimachia iniki X
Lysimachia pendens X
Lysimachia scopulensis X
Lysimachia venosa* X
Melicope degeneri X
Melicope paniculata X
Melicope puberula X X
Melicope knudsenii X
Myrsine mezii X X
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TABLE 6.- SPECIES FOR WHICH CRITICAL HABITAT IS DESIGNATED IN EACH ECOSYSTEM—Continued
Critical Habitat Units Species Lowland Montane Mesic Lowland Wet Mesic Montane Wet Dry Cliff Wet Cliff
Phyllostegia renovans X X
Pittosporum napaliense X
Platydesma rostrata X X X X X
Psychotria grandiflora X X
Psychotria hobdyi X
Schiedea attenuata X
Stenogyne kealiae X X X
Tetraplasandra bisattenuata X X
Tetraplasandra flynnii X X X
Animals
Akikiki (Oreomystis bairdi) X X
Akekee (Loxops caeruleirostris) X X
Picture-wing fly (Drosophila sharpi) X X * Species with an asterisk are those that, to the best of our knowledge, may no longer occur naturally in the wild, therefore there is no known occupied critical habitat for these species. The critical habitat units for these species have been determined to be essential to the conservation of the species because the area provides for the reestablishment of populations within the species’ historical range.
When determining critical habitat activities in and adjacent to areas predation by nonnative species, boundaries within this final rule, we designated as critical habitat may affect competition with nonnative species, made every effort to avoid including one or more of the PCEs found in these hurricanes, landslides, flooding, and developed areas such as lands covered areas. Special management is needed climate change. The reduction of these by buildings, pavement, and other throughout each of the designated threats will require the implementation structures because such lands lack the critical habitat units. The following of special management actions within physical and biological features discussion of special management needs each of the critical habitat areas essential for the conservation of the 47 is applicable to each of the 47 Kauai identified in this final rule. species. The scale of the maps we species for which we are designating All designated critical habitat in this prepared under the parameters for critical habitat. rule requires active management to publication within the Code of Federal These 47 Kauai species include 41 address the ongoing degradation and Regulations may not reflect the species that are currently found in the loss of native habitat caused by feral exclusion of such developed areas. Any wild, and 6 species that are not ungulates (pigs, goats, and black-tailed such lands inadvertently left inside currently extant in the wild. For each of deer). Feral ungulates also impact the critical habitat boundaries shown on the the 41 Kauai species found in the wild, habitat through predation and maps of this final rule have been we have determined that the features trampling. The State of Hawaii provides excluded by text in the rule and are not essential to their conservation are game mammal (feral pigs and goats, and designated as critical habitat. Therefore, primarily dependent on maintaining the black-tailed deer) hunting opportunities a Federal action involving these lands successful functioning of the on one or more State-designated public would not trigger section 7 consultation ecosystem(s) in which they occur hunting areas on the islands of Kauai, with respect to critical habitat unless (Tables 3 and 4). In some cases, Oahu, Maui, Molokai, Lanai, and the specific action would affect the additional species-specific primary Hawaii (Hawaii Administrative Rules PCEs in the adjacent critical habitat. constituent elements have also been 13-123; DLNR 2009a). Management of Special Management Considerations or identified (Table 4). Special game animals by the State ranges from Protections management considerations or providing maximal sustained public protections are necessary throughout the hunting opportunities and benefits (e.g., When designating critical habitat, we critical habitat areas designated here to ‘‘sustained yield’’) in some areas to game assess whether the specific areas within avoid further degradation or destruction animal removal by State staff, or their the geographical area occupied by the of the habitat that provides those designees, in other areas (DLNR 2009b). species at the time of listing contains features essential to their conservation. Public hunting areas are not fenced, and the physical or biological features The primary threats to the physical and game mammals have unrestricted access essential to the conservation of the biological features essential to the to most areas across the landscape, species that may require special conservation of all of these species regardless of the underlying land use management considerations or include habitat destruction and designation. While fences are sometimes protection. It is recognized that modification by feral ungulates, built to provide protection from game
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mammals to the natural resources may require special management to final rule into the existing critical within the fenced area, the current reduce the threat of landslides and habitat unit numbering system number and locations of fences are not flooding, which threaten to further established for plants on the island of sufficient to prevent habitat destruction degrade the habitat conditions and have Kauai in the Code of Federal and degradation. Without special the potential to eliminate some species Regulations (50 CFR 17.99(a)(1)). management, the features that are in their entirety (e.g., Schiedea This required further subdividing essential for the conservation of these attenuata). some of the ecosystem areas we species will continue to be degraded In summary, we find that each of the identified as ‘‘sections’’ into units that and destroyed. areas we are designating as critical correspond to both existing and new All designated critical habitat in this habitat contains features essential to the critical habitat unit numbers and map rule requires active management to conservation of the species that may numbers as published in the CFR. The address the ongoing degradation and require special management maps and area descriptions that follow loss of native habitat caused by considerations or protection to ensure represent the 6 essential ecosystem nonnative plants. Special management the conservation of the 47 Kauai areas we have identified as being is also required to prevent the species. These special management essential for the conservation of each of introduction of new alien plant species considerations and protections are the 47 species, which have been into native habitats. Particular attention required to preserve and maintain the subdivided into 22 sections. For the 44 is required in nonnative plant control essential features provided to these plant species, the critical habitat unit efforts to avoid creating additional species by the ecosystems upon which numbers that collectively represent disturbances that may facilitate the they depend. A more detailed these ecosystem areas and the further introduction and establishment discussion of each of these threats is corresponding map numbers that will be of invasive plant seeds. Precautions are presented above, under the Summary of published at 50 CFR 17.99(a)(1) are also required to avoid the inadvertent Factors Affecting the Species section. presented to provide a crosswalk with trampling of listed plant species in the Critical Habitat Designation the CFR (see text below and figures 1A course of management activities. The through 6C). Critical habitat for each of active control of nonnative plant species We are designating critical habitat in the three3 animal species is published will help to address the threat presented 6 ecosystem types for 47 species; in a separate section of the CFR (50 CFR by fire to three critical habitat areas in including 12 critical habitat units for the 17.95(b) for the akekee and akikiki; 50 particular (Kauai—Lowland Mesic— plants, 6 critical habitat units for the CFR 17.95(i) for the picture-wing fly), Section 1, Kauai—Montane Mesic— birds, and 6 critical habitat units for the and thus have separate critical habitat Section 2, and Kauai—Dry Cliff— picture-wing fly (see Table 5, above, for Section 1; see Table 5 for corresponding details). In total, approximately 26,582 unit numbers and map numbers. These CFR unit numbers). This threat is ac (10,757 ha) of lands under State and numbers are also provided in each of primarily due to the presence of private ownership fall within the the critical habitat descriptions below nonnative species, such as the grasses boundaries of this critical habitat for reference in the CFR. Andropogon sp. and Setaria sp., which designation; 25,988 ac (10,517 ha), or 98 We present a brief description of each increase the fuel load and quickly percent is within areas already critical habitat unit and the reasons why regenerate after a fire. These species can designated as critical habitat for other it meets the definition of critical habitat outcompete native plants that are not listed species. The critical habitat units below. adapted to fire, creating a grass-fire described below constitute our best Kauai—Lowland Mesic—Section 1 cycle that alters ecosystem functions assessment of those areas that meet the (D’Antonio and Vitousek 1992, pp. 64– definition of critical habitat for the 47 Lowland Mesic–Section 1 consists of 66; Brooks et al. 2004, p. 680). species of plants and animals. 2,006 ac (812 ha) in the lowland mesic In addition, five sections (Kauai—Dry Because 98 percent of the designated ecosystem, including mesic forest Cliff—Section 1, Kauai—Dry Cliff— critical habitat for the plants overlies extending from Awaawapuhi Trail Section 2, Kauai—Wet Cliff—Section 1, critical habitat already designated for south to Makaha Ridge, in the Na Pali Kauai—Wet Cliff—Section 2, and other plant species on the island of Kona Forest Reserve and the Kuia NAR Kauai—Wet Cliff—Section 3; see Table Kauai, we have incorporated the maps (Figure 1-A). 5 for corresponding CFR unit numbers) of the ecosystem areas identified in this BILLING CODE 4310–55–S
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BILLING CODE 4310–55–C
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The entire section is State-owned and This section also contains unoccupied features necessary for the within previously designated critical habitat that is essential to the reestablishment of wild populations habitat; it falls within Critical Habitat conservation of these six species by within their historic range. Due to the Unit 11 of 50 CFR 17.99(a)(1), Map 66a. providing the physical and biological small numbers of individuals or low This section is occupied by the plants features necessary for the expansion of population sizes of each of these Doryopteris angelica, Labordia helleri, the existing wild populations. Although species, each requires suitable habitat Platydesma rostrata and Psychotria Lowland Mesic–Section 2 is not known and space for expansion or hobdyi, and includes mesic forest, the to be occupied by the species reintroduction to achieve recovery. Doryopteris angelica, Dubautia moisture regime, and canopy, Kauai—Lowland Mesic—Section 4 subcanopy, and understory native plant kenwoodii, Labordia helleri, Platydesma species identified as PCEs in the rostrata, and Tetraplasandra Lowland Mesic–Section 4 consists of lowland mesic ecosystem (Table 3). This bisattenuata, we have determined this 81 ac (33 ha) in the lowland mesic section also contains unoccupied area to be essential for the conservation ecosystem, including mesic forest at the habitat that is essential to the and recovery of these lowland mesic head of the Hanakapiai Valley, in the Na conservation of these four species by species because it provides the physical Pali Coast State Park (Figure 1-A, providing the physical and biological and biological features necessary for the above). The entire section is State- features necessary for the expansion of reestablishment of wild populations owned and within previously the existing wild populations. Although within their historical range. Due to the designated critical habitat; it falls within Lowland Mesic–Section 1 is not known small numbers of individuals or low Critical Habitat Unit 11 of 50 CFR to be occupied by the species Canavalia population sizes of each of these 17.99(a)(1), Map 66a. This section is napaliensis, Chamaesyce eleanoriae, species, each requires suitable habitat occupied by the plant Charpentiera Chamaesyce remyi var. remyi, and space for expansion or densiflora and includes mesic forest, the Charpentiera densiflora, Dubautia reintroduction to achieve recovery. moisture regime, and canopy, subcanopy, and understory native plant kenwoodii, Pittosporum napaliense, and Kauai—Lowland Mesic—Section 3 Tetraplasandra bisattenuata, we have species identified as PCEs in the determined this area to be essential for Lowland Mesic–Section 3 consists of lowland mesic ecosystem (Table 3). This the conservation and recovery of these 124 ac (50 ha) in the lowland mesic section also contains unoccupied lowland mesic species because it ecosystem, including mesic forest habitat that is essential to the extending from Manono Ridge, provides the physical and biological conservation of this species by Pohakuao Valley, to Kanakuu, within features necessary for the providing the physical and biological the Na Pali Coast State Park (Figure 1- reestablishment of wild populations features necessary for the expansion of A, above). The entire section is State- within their historic range. Due to the the existing wild population. Although owned and within previously small numbers of individuals or low Lowland Mesic–Section 4 is not known designated critical habitat; it falls within population sizes of each of these to be occupied by the species Canavalia Critical Habitat Unit 11 of 50 CFR species, each requires suitable habitat napaliensis, Chamaesyce eleanoriae, 17.99(a)(1), Map 66a. This section is and space for expansion or Chamaesyce remyi var. remyi, occupied by the plants Canavalia reintroduction to achieve recovery. Doryopteris angelica, Dubautia napaliensis, Chamaesyce eleanoriae, kenwoodii, Labordia helleri, Kauai—Lowland Mesic—Section 2 and Charpentiera densiflora, and Pittosporum napaliense, Platydesma includes mesic forest, the moisture rostrata, Psychotria hobdyi, and Lowland Mesic–Section 2 consists of regime, and canopy, subcanopy, and Tetraplasandra bisattenuata, we have 379 ac (154 ha) in the lowland mesic understory native plant species determined this area to be essential for ecosystem, including mesic forest identified as PCEs in the lowland mesic the conservation and recovery of these extending from Keanapuka to Kahuamaa ecosystem (Table 3). This section also lowland mesic species because it Flat along the rim and cliffs of the contains unoccupied habitat that is provides the physical and biological Kalalau Valley, in the Na Pali Coast essential to the conservation of these features necessary for the State Park (Figure 1-A, above). The three species by providing the physical reestablishment of wild populations entire section is State-owned and within and biological features necessary for the within their historic range. Due to the previously designated critical habitat; it expansion of the existing wild small numbers of individuals or low falls within Critical Habitat Unit 11 of populations. Although Lowland Mesic– population sizes of each of these 50 CFR 17.99(a)(1), Map 66a. This Section 3 is not known to be occupied species, each requires suitable habitat section is occupied by the plants by the species Chamaesyce remyi var. and space for expansion or Canavalia napaliensis, Chamaesyce remyi, Doryopteris angelica, Dubautia reintroduction to achieve recovery. eleanoriae, C. remyi var. remyi, kenwoodii, Labordia helleri, Charpentiera densiflora, Pittosporum Pittosporum napaliense, Platydesma Kauai—Lowland Mesic—Section 5 napaliense, and Psychotria hobdyi, and rostrata, Psychotria hobdyi, and Lowland Mesic–Section 5 consists of includes mesic forest, the moisture Tetraplasandra bisattenuata, we have 37 ac (15 ha) in the lowland mesic regime, and canopy, subcanopy, and determined this area to be essential for ecosystem, including mesic forest on the understory native plant species the conservation and recovery of these slopes of Mt. Haupu, on privately identified as PCEs in the lowland mesic lowland mesic species because it owned land (Figure 1-B). ecosystem (Table 3). provides the physical and biological BILLING CODE 4310–55–S
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The entire section is within expansion of the existing wild small numbers of individuals or low previously designated critical habitat, populations. Although Lowland Mesic– population sizes of each of these and falls within Critical Habitat Unit 7 Section 5 is not known to be occupied species, each requires suitable habitat of 50 CFR 17.99(a)(1), Map 23a. This by the species Canavalia napaliensis, and space for expansion or section is occupied by the plants Chamaesyce eleanoriae, Charpentiera reintroduction to achieve recovery. Chamaesyce remyi var. remyi and densiflora, Doryopteris angelica, Tetraplasandra bisattenuata, and Dubautia kenwoodii, Labordia helleri, Kauai—Lowland Wet—Section 1 includes mesic forest and shrubland, the Pittosporum napaliense, Platydesma Lowland Wet–Section 1 consists of moisture regime, and subcanopy and rostrata, and Psychotria hobdyi, we understory native plant species have determined this area to be essential 1,164 ac (471 ha) in the lowland wet identified as PCEs in the lowland mesic for the conservation and recovery of ecosystem (117 ac (47.4 ha) on State ecosystem (Table 3). This section also these lowland mesic species because it land; 1,047 ac (424 ha) on private land), contains unoccupied habitat that is provides the physical and biological including wet forest extending from essential to the conservation of these features necessary for the Kulanalilia into Limahuli Valley to two species by providing the physical reestablishment of wild populations Honoonapali, in the Halelea Forest and biological features necessary for the within their historic range. Due to the Reserve (Figure 2-A).
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BILLING CODE 4310–55–C
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The section includes 1,099 ac (445 ha) flynnii, we have determined this area to species identified as PCEs in the of State and privately owned land be essential for the conservation and lowland wet ecosystem (Table 3). within previously designated critical recovery of these lowland wet species Although Lowland Wet–Section 2 is not habitat and 65 ac (26 ha) of newly because it provides the physical and known to be occupied by the species designated critical habitat on private biological features necessary for the Chamaesyce remyi var. kauaiensis, C. land. The area that falls within reestablishment of wild populations remyi var. remyi, Charpentiera designated critical habitat lies within within their historic range. Due to the densiflora, Cyanea eleeleensis, C. Critical Habitat Unit 11 of 50 CFR small numbers of individuals or low kolekoleensis, C. kuhihewa, Cyrtandra 17.99(a)(1), Map 70a, and newly population sizes of each of these oenobarba, Dubautia imbricata ssp. designated Critical Habitat Unit 20, Map species, each requires suitable habitat imbricata, Labordia helleri, Melicope 217c. This section is occupied by the and space for expansion or paniculata, Phyllostegia renovans, plants Chamaesyce remyi var. remyi, reintroduction to achieve recovery. Platydesma rostrata, Stenogyne kealiae, Charpentiera densiflora, Labordia Kauai—Lowland Wet—Section 2 Tetraplasandra bisattenuata, and T. helleri, and Phyllostegia renovans. This flynii, we have determined this area to Lowland Wet–Section 2 consists of be essential for the conservation and section also contains unoccupied 172 ac (70 ha) in the lowland wet habitat that is essential to the recovery of these lowland wet species ecosystem, including wet forest because it provides the physical and conservation of these four species by extending from Alealau to Pohakea, biological features necessary for the providing the physical and biological within the Hono o Na Pali NAR and the reestablishment of wild populations features necessary for the expansion of Na Pali Coast State Park (Figure 2-A, within their historic range. Due to the the existing wild populations. This above). The entire section is State- small numbers of individuals or low section includes the lowland wet forest, owned and within previously population sizes of each of these the moisture regime, and canopy, designated critical habitat; it falls within species, each requires suitable habitat subcanopy, and understory plant Critical Habitat Unit 11 of 50 CFR and space for expansion or species identified as PCEs in the 17.99(a)(1), Map 70a, and is occupied by reintroduction to achieve recovery. lowland wet ecosystem (Table 3). the plant Melicope puberula. This Although Lowland Wet–Section 1 is not section also contains unoccupied Kauai—Lowland Wet—Section 3 known to be occupied by the species habitat that is essential to the Chamaesyce remyi var. kauaiensis, conservation of this species by Lowland Wet–Section 3 consists of Cyanea eleeleensis, C. kolekoleensis, C. providing the physical and biological 756 ac (306 ha) in the lowland wet kuhihewa, Cyrtandra oenobarba, features necessary for the expansion of ecosystem, including wet forest in Dubautia imbricata ssp. imbricata, the existing wild population. This upper Wainiha Valley, on privately Melicope paniculata, M. puberula, section includes the lowland wet forest, owned land in the Halelea Forest Platydesma rostrata, Stenogyne kealiae, the moisture regime, and canopy, Reserve (Figure 2-B). Tetraplasandra bisattenuata, and T. subcanopy, and understory plant BILLING CODE 4310–55–S
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BILLING CODE 4310–55–C
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The entire section is within reestablishment of wild populations Although Lowland Wet–Section 4 is not previously designated critical habitat, within their historic range. Due to the known to be occupied by the species falling within Critical Habitat Unit 11 of small numbers of individuals or low Chamaesyce remyi var. kauaiensis, 50 CFR 17.99(a)(1), Map 70a, and is population sizes of each of these Charpentiera densiflora, Cyanea occupied by the plants Chamaesyce species, each requires suitable habitat eleeleensis, C. kolekoleensis, C. remyi var. kauaiensis, Cyrtandra and space for expansion or kuhihewa, Dubautia imbricata ssp. oenobarba, Melicope puberula, reintroduction to achieve recovery. imbricata, Labordia helleri, Melicope Phyllostegia renovans, and Stenogyne Kauai—Lowland Wet—Section 4 puberula, Stenogyne kealiae, kealiae. This section also contains Tetraplasandra bisattenuata, and T. unoccupied habitat that is essential to Lowland Wet–Section 4 consists of flynii, we have determined this area to 591 ac (239 ha) in the lowland wet the conservation of these five species by be essential for the conservation and ecosystem, including wet forest at the providing the physical and biological recovery of these lowland wet species head of Lumahai Valley, on State (10 ac, features necessary for the expansion of because it provides the physical and 4.1 ha) and privately owned (581 ac, 235 the existing wild populations. This biological features necessary for the ha) land in the Halelea Forest Reserve reestablishment of wild populations section includes the lowland wet forest, (Figure 2-B, above). The entire section is the moisture regime, and canopy, within their historic range. Due to the within previously designated critical small numbers of individuals or low subcanopy, and understory plant habitat, falling within Critical Habitat population numbers of each of these species identified as PCEs in the Unit 11 of 50 CFR 17.99(a)(1), Map 70a, species, each requires suitable habitat lowland wet ecosystem (Table 3). and is occupied by the plants and space for expansion or Although Lowland Wet–Section 3 is not Chamaesyce remyi var. remyi, reintroduction to achieve recovery. known to be occupied by the species Cyrtandra oenobarba, Melicope Chamaesyce remyi var. remyi, paniculata, Phyllostegia renovans, and Kauai—Lowland Wet—Section 5 Charpentiera densiflora, Cyanea Platydesma rostrata. This section also eleeleensis, C. kolekoleensis, C. contains unoccupied habitat that is Lowland Wet–Section 5 consists of kuhihewa, Dubautia imbricata ssp. essential to the conservation of these 1,541 ac (624 ha) in the lowland wet imbricata, Labordia helleri, Melicope five species by providing the physical ecosystem, including wet forest paniculata, Platydesma rostrata, and biological features necessary for the extending from the headwaters of the Tetraplasandra bisattenuata, and T. expansion of the existing wild Wailua River at ‘‘Blue Hole’’ south to flynii, we have determined this area to populations. This section includes the Iole, on State (442 ac, 179 ha) and be essential for the conservation and lowland wet forest, the moisture regime, privately owned (1,099 ac, 445 ha) land recovery of these lowland wet species and canopy, subcanopy, and understory in the Lihue-Koloa Forest Reserve because it provides the physical and plant species identified as PCEs in the (Figure 2-C). biological features necessary for the lowland wet ecosystem (Table 3). BILLING CODE 4310–55–S
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The entire section is within identified as PCEs in the lowland wet small numbers of individuals or low previously designated critical habitat, ecosystem (Table 3). Although Lowland population sizes of each of these falling within Critical Habitat Unit 10 of Wet–Section 5 is not known to be species, each requires suitable habitat 50 CFR 17.99(a)(1), Map 36a, and is occupied by the species Chamaesyce and space for expansion or occupied by the plants Cyrtandra remyi var. kauaiensis, C. remyi var. reintroduction to achieve recovery. oenobarba, Dubautia imbricata ssp. remyi, Charpentiera densiflora, Cyanea imbricata, Melicope paniculata, eleeleensis, C. kolekoleensis, C. Kauai—Lowland Wet—Section 6 Phyllostegia renovans, and Platydesma kuhihewa, Labordia helleri, Melicope Lowland Wet–Section 6 consists of rostrata. This section also contains puberula, Stenogyne kealiae, unoccupied habitat that is essential to Tetraplasandra bisattenuata, and T. 789 ac (319 ha) in the lowland wet the conservation of these five5 species flynii, we have determined this area to ecosystem, including wet forest by providing the physical and biological be essential for the conservation and extending from Kapalaoa to Kanaele Bog features necessary for the expansion of recovery of these lowland wet species and Lauahihaihai in the Wahiawa the existing wild populations. This because it provides the physical and Mountains, on State (134 ac, 54 ha) and section includes the lowland wet forest, biological features necessary for the privately owned (655 ac, 265 ha) land in the moisture regime, and canopy, reestablishment of wild populations the Lihue-Koloa Forest Reserve (Figure subcanopy and understory plant species within their historic range. Due to the 2-D).
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The entire section is within subcanopy, and understory plant wild populations within their historic previously designated critical habitat, species identified as PCEs in the range. Due to the small numbers of falling within Critical Habitat Unit 10 of lowland wet ecosystem (Table 3). individuals or low population sizes of 50 CFR 17.99(a)(1), Map 36a, and is Although Lowland Wet–Section 6 is not each of these species, each requires occupied by the plants Chamaesyce known to be occupied by the species suitable habitat and space for expansion remyi var. remyi, Cyrtandra oenobarba, Chamaesyce remyi var. kauaiensis, or reintroduction to achieve recovery. Dubautia imbricata ssp. imbricata, Charpentiera densiflora, Cyanea Platydesma rostrata, and eleeleensis, C. kolekoleensis, C. Kauai—Montane Mesic—Section 1 Tetraplasandra bisattenuata. This kuhihewa, Labordia helleri, Melicope section also contains unoccupied paniculata, M. puberula, Phyllostegia Montane Mesic–Section 1 consists of habitat that is essential to the renovans, Stenogyne kealiae, and 2,423 ac (980 ha) in the montane mesic conservation of these five species by Tetraplasandra flynii, we have ecosystem, including the area above providing the physical and biological determined this area to be essential for Honopu Valley to Mahanaloa Valley, on features necessary for the expansion of the conservation and recovery of these State owned land in Kokee State Park, the existing wild populations. This lowland wet species because it provides the Na Pali-Kona Forest Reserve, and section includes the lowland wet forest, the physical and biological features Kuia NAR (Figure 3-A). the moisture regime, and canopy, necessary for the reestablishment of
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BILLING CODE 4310–55–C
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The entire section is within reestablishment of wild populations Tetraplasandra flynnii, or by the birds previously designated critical habitat for within their historic range. Due to the the akekee and akikiki, we have the plant species, falling within Critical small numbers of individuals or low determined this area to be essential for Habitat Unit 11 of 50 CFR 17.99(a)(1), population sizes of each of these the conservation and recovery of these Map 70c, and is occupied by the plants species, each requires suitable habitat montane mesic species because it Chamaesyce remyi var. remyi, Labordia and space for expansion or provides the physical and biological helleri, Myrsine knudsenii, Platydesma reintroduction to achieve recovery. features necessary for the rostrata, Psychotria grandiflora, Kauai—Montane Mesic—Section 2 reestablishment of wild populations Stenogyne kealiae, and Tetraplasandra within their historical range, as well as flynii. This section is also occupied by Montane Mesic–Section 2 consists of species-specific PCEs for the akekee and the akekee and the picture-wing fly; 376 ac (152 ha) in the montane mesic akikiki (arthropod prey). Due to the maps of critical habitat for these species ecosystem and includes a portion of the small numbers of individuals or low can be found at 50 CFR 17.95(b) for the area surrounding a tributary of population sizes of each of these akekee and akikiki (Unit 1–Montane Nawaimaka Stream east to Kumuwela species, each requires suitable habitat Mesic), and at 50 CFR 17.95(i) for the Ridge (Figure 3-A, above). The entire and space for expansion or picture-wing fly (Unit 1–Montane section is State-owned within Kokee reintroduction to achieve recovery. Mesic). This section also contains State Park, and includes 8 ac (3 ha) of For the plants, that portion of the unoccupied habitat that is essential to newly designated critical habitat. This section that overlies previously the conservation of these nine species section is occupied by Diellia mannii designated critical habitat falls within by providing the physical and biological and the picture-wing fly Drosophila Critical Habitat Unit 11 of 50 CFR features necessary for the expansion of sharpi, and includes the montane mesic 17.99(a)(1), Map 70c. The previously the existing wild populations. This forest, the moisture regime, and canopy, undesignated land comprises Critical section includes the montane mesic subcanopy, and understory plant Habitat Unit 21 of 50 CFR 17.99(a)(1), forest, the moisture regime, and canopy, species identified as PCEs in the subcanopy, and understory plant montane mesic ecosystem (Table 3), as Map 217d. Maps of critical habitat for species identified as PCEs in the well as the larval-stage host plants the akekee and akikiki can be found at montane mesic ecosystem (Table 3), as (Cheirodendron sp. and Tetraplasandra 50 CFR 17.95(b) (Unit 2–Montane well as species-specific PCEs for the sp.) associated with the picture-wing Mesic), and for the picture-wing fly at akekee and akikiki (arthropod prey) and fly. This section also contains 50 CFR 17.95(i) (Unit 2–Montane picture-wing fly (the larval-stage host unoccupied habitat that is essential to Mesic). plants, Cheirodendron sp. and the conservation of these two species by Kauai—Montane Mesic—Section 3 Tetraplasandra sp.). Although Montane providing the physical and biological Mesic–Section 1 is not known to be features necessary for the expansion of Montane Mesic–Section 3 consists of occupied by the species Diellia mannii, the existing wild populations. Although 139 ac (56 ha) in the montane mesic Myrsine mezii, and the akikiki, we have Montane Mesic–Section 2 is not known ecosystem, including the upper portion determined this area to be essential for to be occupied by the plants of the Nawaimaka Valley up to the conservation and recovery of these Chamaesyce remyi var. remyi, Labordia Kapukapaia Ridge, on State-owned land montane mesic species because it helleri, Myrsine knudsenii, Myrsine in the Na Pali-Kona Forest Reserve provides the physical and biological mezii, Platydesma rostrata, Psychotria (Figure 3-B). features necessary for the grandiflora, Stenogyne kealiae, and BILLING CODE 4310–55–S
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This section is not in previously Tetraplasandra flynnii; by the birds the For the plants, this section comprises designated critical habitat and includes akekee and akikiki; or by the picture- Critical Habitat Unit 22 of 50 CFR the only montane mesic forest occupied wing fly Drosophila sharpi, we have 17.99(a)(1), Map 217e. Maps of critical by the plant Myrsine mezii, and the determined this area to be essential for habitat for the akekee and akikiki can be moisture regime, and canopy, the conservation and recovery of these found at 50 CFR 17.95(b) (Unit 3– subcanopy, and understory plant montane mesic species because it Montane Mesic), and for the picture- species identified as PCEs in the provides the physical and biological wing fly at 50 CFR 17.95(i) (Unit 3– montane mesic ecosystem (Table 3). features necessary for the Montane Mesic). This section also contains unoccupied reestablishment of wild populations Kauai—Montane Wet—Section 1 habitat that is essential to the within their historic range. It also conservation of this species by provides for the species-specific PCEs Montane Wet–Section 1 consists of providing the physical and biological for the akekee and akikiki (arthropod 13,055 ac (5,257 ha) in the montane wet features necessary for the expansion of prey) and the larval-stage host plants ecosystem, extending across the Alakai the existing wild population. Although (Cheirodendron sp. and Tetraplasandra Plateau from Hanakoa to Mount Montane Mesic–Section 3 is not known sp.) associated with D. sharpi. Due to Waialeale, on State (12,628 ac, 5,110 ha) to be occupied by the plants the small numbers of individuals or low and privately owned (427 ac, 173 ha) Chamaesyce remyi var. remyi, Labordia population sizes of each of these land in the Na Pali Coast State Park, the helleri, Myrsine knudsenii, Myrsine species, each requires suitable habitat Alakai Wilderness Preserve, the Na Pali- mezii, Platydesma rostrata, Psychotria and space for expansion or Kona and Halelea forest reserves, and grandiflora, Stenogyne kealiae, and reintroduction to achieve recovery. Hono o Na Pali NAR (Figure 4).
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BILLING CODE 4310–55–C
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It is occupied by the plants Astelia Kauai—Montane Wet—Section 2 ecosystem, encompasses the summit of waialealae, Chamaesyce remyi var. Montane Wet–Section 2 consists of Namolokama, on State (156 ac, 63 ha) remyi, Dryopteris crinalis var. 790 ac (320 ha) in the montane wet and privately owned (257 ac, 104 ha) podosorus, Dubautia waialealae, ecosystem, extending from Kahuamaa land in the Halelea Forest Reserve Geranium kauaiense, Keysseria erici, K. Flat south to the edge of Waimea (Figure 4, above). It is entirely within helenae, Labordia helleri, L. pumila, Canyon, on State-owned land in Kokee previously designated critical habitat, Lysimachia daphnoides, Melicope State Park (Figure 4, above). The entire and is occupied by the plants Keysseria degeneri, M. puberula, Myrsine mezii, section is within previously designated erici and Labordia pumila. This section Phyllostegia renovans, and Platydesma critical habitat, and is occupied by the includes the montane wet forest, the rostrata; by the akekee and akikiki; and plants Chamaesyce remyi var. remyi, moisture regime, and the canopy, by the picture-wing fly. This section Dubautia kalalauensis, Labordia helleri, subcanopy, and understory plant also contains unoccupied habitat that is Melicope puberula, Platydesma rostrata, species identified as PCEs in the essential to the conservation of these 18 Psychotria grandiflora, and montane wet ecosystem (Table 3), and species by providing the physical and Tetraplasandra flynii, and by the bogs (identified as a species-specific biological features necessary for the akekee. This section includes montane PCE for K. erici). Although Montane expansion of the existing wild wet forest, potentially some small-scale Wet–Section 3 is not known to be populations. This section includes the boggy areas, the moisture regime, and occupied by the plants Astelia montane wet forest, the moisture canopy, subcanopy and understory waialeale, Chamaesyce remyi var. regime, and canopy, subcanopy, and plant species identified as PCEs in the remyi, Dryopteris crinalis var. understory plant species identified as montane wet ecosystem (Table 3), and podosorus, Dubautia kalalauensis, D. PCEs in the montane wet ecosystem arthropod prey (identified as a species- waialeale, Geranium kauaiense, (Table 3), and the species-specific PCEs specific PCE for the akekee). Although Keysseria helenae, Labordia helleri, including (1) bogs (identified as PCEs Montane Wet–Section 2 is not known to Lysimachia daphnoides, Melicope for Dubautia waialealae, Geranium be occupied by the plants Astelia degeneri, M. puberula, Myrsine mezii, kauaiense, Keysseria erici, Keysseria waialeale, Dryopteris crinalis var. Phyllostegia renovans, Platydesma helenae, Labordia pumila) (2) bog podosorus, Dubautia waialeale, rostrata, Psychotria grandiflora, and hummocks (identified as PCEs for Geranium kauaiense, Keysseria erici, Tetraplasandra flynnii; by the akekee Astelia waialealae and Lysimachia Keysseria helenae, Labordia pumila, and akikiki; or by the picture-wing fly, daphnoides); (3) arthropod prey Lysimachia daphnoides, Melicope Drosophila sharpi, we have determined (identified as PCEs for the akekee and degeneri, Myrsine mezii, and this area to be essential for the the akikiki); and (4) larval-stage host Phyllostegia renovans; by the akikiki; or conservation and recovery of these plants, Cheirodendron and by the picture-wing fly, Drosophila montane wet species because it provides Tetraplasandra sp., (identified as a PCE sharpi, we have determined this area to the physical and biological features for the picture-wing fly). Although be essential for the conservation and necessary for the reestablishment of Montane Wet–Section 1 is not known to recovery of these montane wet species wild populations within their historic be occupied by the plants Dubautia because it provides the physical and range. It also supports the arthropod kalalauensis, Psychotria grandiflora, biological features necessary for the prey identified as a PCE for the akekee and Tetraplasandra flynnii, we have reestablishment of wild populations and akikiki, and the larval-stage host determined this area to be essential for within their historical range. This area plants (Cheirodendron and the conservation and recovery of these also supports the arthropod prey Tetraplasandra spp.) identified as a PCE montane wet species because it provides identified as a PCE for the akikiki, and for the picture-wing fly. Due to the the physical and biological features the larval-stage host plants small numbers of individuals or low necessary for the reestablishment of (Cheirodendron and Tetraplasandra population sizes of each of these wild populations within their historical spp.) identified as a PCE for the picture- species, each requires suitable habitat range. Due to the small numbers of wing fly. Due to the small numbers of and space for expansion or individuals or low population sizes of individuals or low population sizes of reintroduction to achieve recovery. each of these species, each requires each of these species, each requires For the plants, critical habitat falls suitable habitat and space for expansion suitable habitat and space for expansion within Critical Habitat Unit 11 of 50 or reintroduction to achieve recovery. or reintroduction to achieve recovery. For the plants, those portions of the CFR 17.99(a)(1), Map 64a. Maps of For the plants, critical habitat falls critical habitat for the akekee and section that overlie previously within previously designated Critical designated critical habitat fall within akikiki can be found at 50 CFR 17.95(b) Habitat Unit 11 of 50 CFR 17.99(a)(1), (Unit 6–Montane Wet), and for the two existing Critical Habitat Units of 50 Map 64a. Maps of critical habitat for the CFR 17.99(a)(1): Unit 10, Map 35a; and picture-wing fly Drosophila sharpi at 50 akekee and akikiki can be found at 50 CFR 17.95(i) (Unit 6–Montane Wet). Unit 11, Map 64a. The previously CFR 17.95(b) (Unit 5–Montane Wet), undesignated land comprises Unit 23, and for the picture-wing fly Drosophila Kauai—Dry Cliff—Section 1 Map 217f; and Unit 24, Map 217g. Maps sharpi at 50 CFR 17.95(i) (Unit 5– of critical habitat for the akekee and Montane Wet). Dry Cliff–Section 1 consists of 404 ac akikiki can be found at 50 CFR 17.95(b) (163 ha) in the dry cliff ecosystem, along (Unit 4–Montane Wet), and for the Kauai—Montane Wet—Section 3 cliffs from Kalanu to Pihea peak, within picture-wing fly Drosophila sharpi at 50 Montane Wet–Section 3 consists of the Na Pali Coast State Park (Figure 5). CFR 17.95(i) (Unit 4–Montane Wet). 413 ac (167 ha) in the montane wet BILLING CODE 4310–55–S
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The entire section is within Manono Ridge, surrounding the hanging because it provides the physical and previously designated critical habitat valley Pohakuao, in the Na Pali Coast biological features necessary for the and is State-owned; it falls within State Park (Figure 5, above). The entire reestablishment of wild populations Critical Habitat Unit 11 of 50 CFR section is State-owned and within within their historic range of the 17.99(a)(1), Map 67a. This section is previously designated critical habitat; it species. Due to the small numbers of occupied by the plants Chamaesyce falls within Critical Habitat Unit 11 of individuals or low population sizes of eleanoriae, Lysimachia scopulensis, 50 CFR 17.99(a)(1), Map 67a. This each of these species, each requires Schiedea attenuata, and Stenogyne section is occupied by the plant suitable habitat and space for expansion kealiae. This section includes the dry Chamaesyce eleanoriae and includes or reintroduction to achieve recovery. cliffs, the moisture regime, and the dry cliffs, the moisture regime, and subcanopy and understory plant species subcanopy and understory plant species Kauai—Wet Cliff—Section 1 identified as PCEs in the dry cliff identified as PCEs in the dry cliff ecosystem (Table 3). ecosystem (Table 3). Although Dry Cliff Wet Cliff–Section 1 consists of 190 ac - Section 3 is not known to be occupied (77 ha) in the wet cliff ecosystem, Kauai—Dry Cliff—Section 2 by the plants Lysimachia scopulensis, including cliffs along the rim of Kalalau Dry Cliff–Section 2 consists of 309 ac Schiedea attenuata, and Stenogyne Valley from Alealeau to Pihea, on State- (125 ha) in the dry cliff ecosystem, kealiae, we have determined this area to owned land in the Na Pali Coast State including cliffs and ridges extending be essential for the conservation and Park and the Hono o Na Pali NAR from Kanakou to Keanapuka and along recovery of these dry cliff species (Figure 6-A).
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The entire section is within dolichopoda, Cyrtandra oenobarbara, C. species, each requires suitable habitat previously designated critical habitat, paliku, Dubautia plantaginea ssp. and space for expansion or falling within Critical Habitat Unit 11 of magnifolia, Lysimachia iniki, L. reintroduction to achieve recovery. 50 CFR 17.99(a)(1), Map 70b, and is pendens, L. venosa, and Platydesma occupied by the plant Chamaesyce rostrata, we have determined this area Kauai—Wet Cliff—Section 2 remyi var. remyi. This section includes to be essential for the conservation and Wet Cliff–Section 2 consists of 784 ac the wet cliffs, the moisture regime, and recovery of these wet cliff species (317 ha) in the wet cliff ecosystem, and subcanopy and understory plant species because it provides the physical and includes the cliffs at the headwaters of identified as PCEs in the wet cliff biological features necessary for the ‘‘ ’’ ecosystem (Table 3). Although Wet reestablishment of wild populations the Wailua River or Blue Hole, on Cliff–Section 1 is not known to be within their historical range. Due to the State (778 ac, 315 ha) and privately occupied by the plants Chamaesyce small numbers of individuals or low owned (6 ac, 3 ha) land in the Lihue- remyi var. kauaiensis, Cyanea population sizes of each of these Koloa Forest Reserve (Figure 6-B).
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There are 489 ac (198 ha) within pendens, and Platydesma rostrata. The wild populations within their historic previously designated critical habitat section includes the wet cliffs, the range. Due to the small numbers of and 296 ac (120 ha) of newly designated moisture regime, and subcanopy and individuals or low population sizes of critical habitat on State-owned land. understory plant species identified as each of these species, each requires The portion of the section that is in PCEs in the wet cliff ecosystem (Table suitable habitat and space for expansion previously designated critical habitat 3). Although Wet Cliff–Section 2 is not or reintroduction to achieve recovery. falls within Critical Habitat Unit 10 of known to be occupied by the plants 50 CFR 17.99(a)(1), Map 36b. The newly Chamaesyce remyi var. remyi, Cyanea Kauai—Wet Cliff—Section 3 designated portion of the section dolichopoda, Cyrtandra paliku, and comprises Critical Habitat Unit 18 of 50 Lysimachia venosa, we have determined Wet Cliff –Section 3 consists of 61 ac CFR 17.99(a)(1), Map 217a. This section this area to be essential for the (24 ha) in the wet cliff ecosystem, is occupied by the plants Chamaesyce conservation and recovery of these wet including cliffs below Kekoiki, on State remyi var. kauaiensis, Cyrtandra cliff species because it provides the (8 ac, 3 ha) and privately owned (53 ac, oenobarba, Dubautia plantaginea ssp. physical and biological features 22 ha) land in the Halelea, Moloaa and magnifolia, Lysimachia iniki, L. necessary for the reestablishment of Kealia forest reserves (Figure 6-C).
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BILLING CODE 4310–55–C
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There are 23 ac (9 ha) of newly If a species is listed or critical habitat subsequently listed species or designated critical habitat on privately is designated, section 7(a)(2) of the Act designated critical habitat. owned land within this section. That requires Federal agencies to ensure that Federal activities that may affect the portion of the section that falls within activities they authorize, fund, or carry species included in this final rule or previously designated critical habitat is out are not likely to jeopardize the their designated critical habitat require within Critical Habitat Unit 4 of 50 CFR continued existence of the species or to section 7(a)(2) consultation under the 17.99(a)(1), Map 5a. The newly destroy or adversely modify its critical Act. Activities on State, local designated portion of the section habitat. If a Federal action may affect a government, or private lands requiring a comprises Critical Habitat Unit 19 of 50 listed species or its critical habitat, the Federal permit (such as a permit from CFR 17.99(a)(1), Map 217b. This section responsible Federal agency (action the U.S. Army Corps of Engineers under is occupied by the plant Cyrtandra agency) must enter into consultation section 404 of the Clean Water Act (33 paliku, and includes the wet cliffs, the with us. As a result of this consultation, U.S.C. 1251 et seq.) or a permit from us moisture regime, and subcanopy and we issue either: under section 10 of the Act) or involving understory plant species identified as (1) A concurrence letter for Federal some other Federal action (such as PCEs in the wet cliff ecosystem (Table actions that may affect, but are not funding from the Federal Highway 3). Although Wet Cliff–Section 3 is not likely to adversely affect, listed species Administration, Federal Aviation known to be occupied by the plants or critical habitat; or Administration, or the Federal Chamaesyce remyi var. kauaiensis, C. (2) A biological opinion for Federal Emergency Management Agency) are remyi var. remyi, Cyanea dolichopoda, actions that may affect, and are likely to subject to the section 7 consultation process. Federal actions not affecting Cyrtandra oenobarbara, Dubautia adversely affect listed species or critical listed species or critical habitat, and plantaginea ssp. magnifolia, Lysimachia habitat. When we issue a biological opinion actions on State, local government, or iniki, L. pendens, L. venosa, and concluding that a project is likely to private lands that are not federally Platydesma rostrata, we have jeopardize the continued existence of a funded, authorized, or permitted, do not determined this area to be essential for listed species or destroy or adversely require section 7 consultations. the conservation and recovery of these modify critical habitat, we also provide Application of the ‘‘Adverse wet cliff species because it provides the reasonable and prudent alternatives to Modification’’ Standard physical and biological features the project, if any are identifiable. We necessary for the reestablishment of define ‘‘reasonable and prudent The key factor related to the adverse wild populations within their historic alternatives’’ at 50 CFR 402.02 as modification determination is whether, range. Due to the small numbers of alternative actions identified during with implementation of the proposed individuals or low population sizes of consultation that: Federal action, the affected critical each of these species, each requires (1) Can be implemented in a manner habitat would continue to serve its suitable habitat and space for expansion consistent with the intended purposes intended conservation role for the or reintroduction to achieve recovery. of the action, species, or retain those PCEs that relate to the ability of the area to support the Effects of Critical Habitat Designation (2) Can be implemented consistent with the scope of the Federal agency’s species. The role of critical habitat is to Section 7 Consultation legal authority and jurisdiction, support the life history needs of the 47 (3) Are economically and species identified in this final rule and Section 7(a)(2) of the Act requires technologically feasible, and provide for their conservation. Federal agencies, including the Service, (4) Would, in the Director’s opinion, Section 4(b)(8) of the Act requires us to ensure that actions they fund, avoid jeopardizing the continued to briefly evaluate and describe, in any authorize, or carry out are not likely to existence of the listed species or proposed or final regulation that jeopardize the continued existence of destroying or adversely modifying designates critical habitat, activities listed species or destroy or adversely critical habitat. involving a Federal action that may modify critical habitat. Decisions by the Reasonable and prudent alternatives destroy or adversely modify such Fifth and Ninth Circuit Court of Appeals can vary from slight project habitat, or that may be affected by such have invalidated our definition of modifications to extensive redesign or designation. Activities that, when ‘‘destruction or adverse modification’’ relocation of the project. Costs carried out, funded, or authorized by a (50 CFR 402.02) (see Gifford Pinchot associated with implementing a Federal agency, may destroy or Task Force v. U.S. Fish and Wildlife reasonable and prudent alternative are adversely modify critical habitat for the Service, 378 F. 3d 1059 (9th Cir. 2004) similarly variable. 47 species, and therefore should result and Sierra Club v. U.S. Fish and Regulations at 50 CFR 402.16 require in consultation include, but are not Wildlife Service, et al., 245 F.3d 434, Federal agencies to reinitiate limited to: 442F (5th Cir. 2001)), and we do not rely consultation on previously reviewed (1) Activities that may affect the on this regulatory definition when actions in instances where we have primary constituent elements for the analyzing whether an action is likely to listed a new species or subsequently species, such as: grazing; maintaining or destroy or adversely modify critical designated critical habitat that may be increasing feral ungulate levels; clearing habitat. Under the statutory provisions affected and the Federal agency has or cutting native live trees and shrubs of the Act, we determine destruction or retained discretionary involvement or (e.g., woodcutting, bulldozing, adverse modification on the basis of control over the action (or the agency’s construction, road building, mining, whether, with implementation of the discretionary involvement or control is herbicide application); and taking proposed Federal action, the affected authorized by law). Consequently, actions that present a risk of fire. critical habitat would remain functional Federal agencies may sometimes need to (2)Activities that may alter watershed (or retain those physical and biological request reinitiation of consultation with characteristics in ways that would affect features that relate to the ability of the us on actions for which formal groundwater recharge or alter natural, area to support the species) to serve its consultation has been completed, if wetland, or vegetative communities, intended conservation role for the those actions with discretionary such as: New water diversions or species. involvement or control may affect impoundments, groundwater pumping,
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and manipulation of vegetation through of exclusion would outweigh the review and public comment on the activities such as the ones mentioned benefits of inclusion of an area, we can identified physical and biological above. exclude the area only if such exclusion features and areas, and provides a (3)Recreational activities that may would not result in the extinction of the mechanism to educate landowners, affect vegetation. species. State and local governments, and the (4)Mining sand or other minerals. Under section 4(b)(2) of the Act, we public regarding the potential (5)Introducing or encouraging the must consider all relevant impacts. In conservation value of an area. This spread of nonnative plant species. addition to economic impacts, we helps focus and promote conservation (6)Importing nonnative species for consider a number of factors in a section efforts by other parties by clearly research, agriculture, and aquaculture, 4(b)(2) analysis. For example, we delineating areas of high conservation and releasing biological control agents. consider whether there are lands owned value for the species, and is valuable to Please see ‘‘Special Management by the Department of Defense (DOD) land owners and managers in Considerations or Protections’’ section where a national security impact might developing conservation management for a more detailed discussion on the exist. We also consider whether plans by describing the PCEs and impacts of these actions to the listed landowners have developed any special management actions or species. conservation plans for the area, or protections that are needed for Exemptions and Exclusions whether there are existing or potential identified areas. Including lands in conservation partnerships that would be critical habitat also informs State Application of Section 4(a)(3) of the Act encouraged by designation of, or agencies and local governments about The National Defense Authorization exclusion from, critical habitat. We also areas that could be conserved under Act for Fiscal Year 2004 (Pub. L. 108- consider any social or other impacts that State laws or local ordinances. 136) amended the Act to limit areas might occur because of the designation. The consultation provisions under eligible for designation as critical In developing this final rule, we have section 7(a)(2) of the Act constitute the habitat. Specifically, section 4(a)(3)(B)(i) determined that the lands within the regulatory benefits of critical habitat. As of the Act (16 U.S.C. 1533(a)(3)(B)(i)) designation of critical habitat for the 47 discussed above, Federal agencies must now provides: ‘‘The Secretary shall not species are not managed by the consult with the Service on actions that designate as critical habitat any lands or Department of Defense, and there are may affect critical habitat and must other geographical areas owned or currently no habitat conservation plans avoid destroying or adversely modifying controlled by the Department of (HCPs) for these species. As such, we do critical habitat. Federal agencies must not anticipate any impacts to national Defense, or designated for its use, that also consult with us on actions that may security or HCPs from this final critical are subject to an integrated natural affect a listed species and refrain from habitat designation. resources management plan prepared undertaking actions that are likely to In the following sections, we address under section 101 of the Sikes Act (16 jeopardize the continued existence of a number of general issues that are U.S.C. 670a), if the Secretary determines such species. The analysis of effects to relevant to the exclusion considered in in writing that such plan provides a critical habitat is a separate and this final critical habitat rule. benefit to the species for which critical different analysis from that of the effects to the species. Therefore, the difference habitat is proposed for designation.’’ Benefits of Designating Critical Habitat There are no Department of Defense in outcomes of these two analyses The process of designating critical represents the regulatory benefit of lands within the critical habitat habitat as described in the Act requires designation. Therefore, no lands have critical habitat. For some species, and in that the Service identify those areas some locations, the outcome of these been exempted from this critical habitat within the geographical area occupied designation under section 4(a)(3) of the analyses will be similar because effects by the species at the time of listing on on habitat will often result in effects on Act. which are found the physical or the species. However, the regulatory Application of Section 4(b)(2) of the Act biological features essential to the standard is different, as the jeopardy conservation of the species that may Background analysis looks at the action’s impact on require special management survival and recovery of the species, Section 4(b)(2) of the Act states that considerations or protection, and those while the adverse modification analysis the Secretary must designate and revise areas outside the geographical area looks at the action’s effects to the critical habitat on the basis of the best occupied by the species at the time of designated habitat’s contribution to the available scientific data after taking into listing that are essential for the species’ conservation. This will, in consideration the economic impact, conservation of the species. In many instances, lead to different results national security impact, and any other identifying those areas, the Service must and different regulatory requirements. relevant impact of specifying any consider the recovery needs of the Thus, critical habitat designations may particular area as critical habitat. The species, such that, on the basis of the provide greater benefits to the recovery Secretary may exclude an area from best scientific and commercial data of a species than would listing alone. critical habitat if he determines that the available at the time of designation, the There are two limitations to the benefits of such exclusion outweigh the features and areas identified, if managed regulatory effect of critical habitat. First, benefits of specifying such area as part or protected, could aid in providing for a section 7(a)(2) consultation is required of the critical habitat. In considering the survival and recovery of the species. only where there is a Federal nexus (an whether to exclude a particular area The identification of areas that action authorized, funded, or carried out from the designation, we must identify contain the features essential to the by any Federal agency)—if there is no the benefits of including the area in the conservation of the species, or are Federal nexus, the critical habitat designation, identify the benefits of otherwise essential for the conservation designation of private lands itself does excluding the area from the designation, of the species if outside the geographical not restrict any actions that destroy or and determine whether the benefits of area occupied by the species at the time adversely modify critical habitat. exclusion outweigh the benefits of of listing, is a benefit resulting from the Second, the designation only limits inclusion. If, based on this analysis, we designation. The critical habitat destruction or adverse modification. By make a determination that the benefits designation process includes peer its nature, the prohibition on adverse
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modification is designed to ensure that the Act, or other voluntary conservation not known to occur on Federal lands at the conservation role and function of efforts or management plans. The all. those areas identified as critical habitat conservation achieved through Given the distribution of listed are not appreciably reduced as a result implementing HCPs or other habitat species with respect to land ownership, of a Federal action. Critical habitat management plans can be greater than conservation of listed species in many designation alone, however, does not what we achieve through multiple site- parts of the United States is dependent require property owners to undertake by-site, project-by-project, section upon working partnerships with a wide specific steps toward recovery of the 7(a)(2) consultations involving variety of entities and the voluntary species. consideration of critical habitat. cooperation of many non-Federal Once an agency determines that Management plans commit resources to landowners (Wilcove and Chen 1998, p. consultation under section 7(a)(2) of the implement long-term management and 1407; Crouse et al. 2002, p. 720; James Act is necessary, the process may protection to particular habitat for at 2002, p. 271). Building partnerships and conclude informally when the Service least one and possibly other listed or promoting voluntary cooperation of concurs in writing that the proposed sensitive species. Section 7(a)(2) landowners is essential to Federal action is not likely to adversely consultations commit Federal agencies understanding the status of species on affect the species or critical habitat. to preventing adverse modification of non-Federal lands and is necessary to However, if we determine through critical habitat caused by the particular implement recovery actions such as informal consultation that adverse project; consultation does not require reintroducing listed species, habitat impacts are likely to occur, then formal Federal agencies to provide for restoration, and habitat protection. consultation is initiated. Formal conservation or long-term benefits to Many non-Federal landowners derive consultation concludes with a biological areas not affected by the proposed satisfaction in contributing to opinion issued by the Service on project. Thus, implementation of any endangered species recovery. However, whether the proposed Federal action is HCP or management plan that private landowners are often wary of the likely to jeopardize the continued incorporates enhancement or recovery possible consequences of encouraging existence of listed species or result in as the management standard may often endangered species conservation on destruction or adverse modification of provide as much or more benefit than a their property, and of regulatory action critical habitat. consultation for critical habitat by the Federal government under the For critical habitat, a biological designation. Endangered Species Act (Act). Social opinion that concludes in a research has demonstrated that for many determination of no destruction or Conservation Partnerships on Non- private landowners, government adverse modification may recommend Federal Lands regulation under the Act is perceived as additional conservation measures to Section 4(b)(2) of the Act allows the a loss of individual freedoms, regardless minimize adverse effects to primary Secretary to exclude areas from critical of whether that regulation may in fact constituent elements, but such measures habitat for other relevant impacts if he result in any actual impact to the would be discretionary on the part of determines that the benefits of such landowner (Brook et al. 2003, pp. 1644– the Federal agency. A biological opinion exclusion outweigh the benefits of 1648; Conley et al. 2007, p. 141). The that concludes in a determination of no specifying such area as part of the magnitude of this negative outcome is destruction or adverse modification critical habitat, unless he determines, greatly amplified in situations where would not suggest the implementation based on the best scientific data active management measures (such as of any reasonable and prudent available, that the failure to designate reintroduction, fire management, and alternative, as we suggest reasonable such area as critical habitat will result the control of invasive species) are and prudent alternatives to the in the extinction of the species. As necessary for species conservation (Bean proposed Federal action only when our discussed below, we believe that in 2002, pp. 3–4). Furthermore, in a recent biological opinion results in a jeopardy some cases designation can negatively study of private landowners who have finding or an adverse modification affect the working relationships and experience with regulation under the conclusion. conservation partnerships formed with Act, only 2 percent of respondents As stated above, the designation of private landowners, and may serve as a believed the Federal government critical habitat does not require that any disincentive for the formation of future rewards private landowners for good management or recovery actions take partnerships that would have the management of their lands and place on the lands included in the potential to provide conservation resources (Conley et al. 2007, p. 141, designation. Even in cases where benefits. The Service recognizes that 144). consultation has been initiated under most federally listed species in the As described above, the Service section 7(a)(2) of the Act, the end result United States will not recover without recognizes that in many cases, building of consultation is to avoid jeopardy to the cooperation of non-Federal partnerships and promoting the the species or adverse modification of landowners. More than 60 percent of the voluntary cooperation of private its critical habitat, but not necessarily to United States is privately owned (US landowners will be essential to the manage critical habitat or institute Department of Agriculture 2002), and at successful conservation and recovery of recovery actions on critical habitat. On least 80 percent of endangered or threatened and endangered species. the other hand, voluntary conservation threatened species occur either partially Since government actions such as the efforts implemented through or solely on private lands (Crouse et al. designation of critical habitat on private management plans can remove or 2002, p. 720). Eight-eight percent of the lands may be perceived as an reduce known threats to a species or its State of Hawaii is made up of non- infringement of private property rights, habitat by implementing recovery Federal lands. Stein et al. (1995, p. 400) and may reduce the likelihood that actions. We believe that in many found that only about 12 percent of landowners will support and carry out instances the regulatory benefit of listed species in the United States were conservation actions for the benefit of critical habitat is minimal when found almost exclusively on Federal listed species, we believe that the compared to the conservation benefit lands (90 to100 percent of their known judicious exclusion of specific areas of that can be achieved through occurrences restricted to Federal lands) non-federally owned lands from critical implementing HCPs under section 10 of and that 50 percent of listed species are habitat designations can contribute to
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species recovery and provide a greater require consultation under section 7 to critical habitat for 47 species on Kauai. level of species conservation than review the effects of those actions under Specific information on the previous critical habitat designation alone. a jeopardy standard. This assessment economic analyses follows. Although we believe that the potentially includes effects from habitat On March 29, 2002, we published a positive contribution of private modification regardless of whether it is notice in the Federal Register (67 FR landowners with a demonstrated record designated critical habitat. 15159), announcing the availability of a of conservation management should be draft economic analysis for the Economic Analysis an important consideration when proposed designation of 16.3 mi (26.3 designating critical habitat, we wish to Ninety-eight percent (25,988 out of km) of main stream channel in nine emphasize that we will continue to be 26,582 ac (10,517 out of 10,757 ha)) of critical habitat units for Newcomb’s discriminating in our evaluation of the critical habitat designated in this snail (Erinna newcombi) on Kauai. The potential exclusions, and private lands final rule occurs within critical habitat draft economic analysis covered the 10– will only be excluded should we units that were designated for 83 Kauai year timeframe from 2002–2012, and determine that the benefits of exclusion plants (68 FR 9116, February 27, 2003), identified the total section 7 outweigh the benefits of inclusion and for which a contracted economic consultation costs and incremental costs following a rigorous examination of the analysis was completed. Designated attributable to critical habitat (DEA ES– record on a case-by-case basis. ecosystem sections Lowland Mesic 1, 2, 7). On August 20, 2002, the final rule The purpose of designating critical 3, 4, 5; Lowland Wet 1, 2, 3, 4, 5, 6; (67 FR 54026) designated eight stream habitat is to contribute to the Montane Mesic 1, 2; Montane Wet 1, 2, segments and associated tributaries, conservation of threatened and 3; Dry Cliff 1, 2; and Wet Cliff 1, 2, 3 springs and seeps, and adjacent riparian endangered species and the ecosystems overlap in whole or in part with critical areas on the island of Kauai, which upon which they depend. The outcome habitat units designated in the 2003 included 12.3 mi (19.7 km) of stream of the designation, triggering regulatory final rule. Montane Mesic – Section 3 is channel and 4,479 ac (1,813 ha) as requirements for actions funded, the only critical habitat unit being critical habitat for Newcomb’s snail. It authorized, or carried out by Federal designated in this final rule that does was determined that the designation agencies under section 7(a)(2) of the not overlap previously designated could result in potential economic Act, can sometimes be critical habitat (see Table 5 for cross- effects of $28,500 over the 10–year counterproductive to its intended reference of ecosystem section numbers period, with $19,500 of this cost purpose on non-Federal lands when it with critical habitat unit numbers in the attributable to critical habitat. No causes private landowners to avoid CFR). We evaluated the potential critical habitat units in the proposed taking conservation actions they might economic impacts of the proposed rule were excluded or modified in the otherwise do. Thus the benefits of designation, finalized here, in an final rule as a result of economic excluding areas that are covered by internal economic impact analysis impacts. Of the $19,500 in potential partnerships or voluntary conservation (‘‘Economic Impact Analysis, Proposed costs identified in the Newcomb’s snail commitments can often be high. Listing and Critical Habitat Designation final critical habitat designation, in our A related benefit of our willingness to for 48 Species on the Island of Kauai, current economic impact analysis we exclude, in appropriate situations, lands Hawaii,’’ USFWS 2008). Due to the estimate that $3,570 could be under active conservation management extensive overlap of the proposed attributable to the area overlapping this from a critical habitat designation is that designation with recently designated final rule(USFWS 2008, p. 12). The it creates an incentive for the critical habitat, we used the economic three Newcomb’s snail critical habitat establishment of new partnerships in analysis developed for the 2003 Kauai areas identified above also overlap with future conservation efforts with States, plants rule to inform our economic areas that were designated as critical counties, local jurisdictions, impact analysis and this final habitat in the 2003 final rule for 83 conservation organizations, and private designation of critical habitat for 47 Kauai plants (see below). landowners. In our experience and as species on Kauai. On May 28, 2002, we published a advised by various researchers on the In addition, the final rule designating notice in the Federal Register subject, we can greatly strengthen the critical habitat for the Newcomb’s snail announcing the availability of the draft effective implementation of the Act (Erinna newcombi) (67 FR 54026, economic analysis (DEA) for the through such partnerships to achieve August 20, 2002), designated 609 ac proposed designation of 99,206 ac conservation on non-Federal lands (246 ha) under State ownership that (40,147 ha) of critical habitat on Kauai (Bean and Wilcove 1992, pp. 1-2; Bean partially overlap with three of the for 83 Kauai plants (67 FR 36851). The 2002, pp. 419-420; Crouse et al. 2002, p. critical habitat areas designated in this draft economic analysis covered the 10– 270; James 2002, p. 271; Brook et al. final rule (Dry Cliff – Section 2, year timeframe from 2002-2012, and 2003, pp. 8-9; Conley et al. 2007, p. Lowland Mesic – Section 2, and characterized both the total section 7 145). Together with our partners, we can Lowland Mesic – Section 4; see Table 5 consultation cost, and the costs implement conservation actions that we for cross-reference with critical habitat attributable to critical habitat (DEA VI- would be unable to accomplish unit numbers in the CFR). In our 1). On February 27, 2003, the final rule otherwise. By excluding these lands, we economic impact analysis of the (2003 rule) designated 52,549 ac (21,266 not only preserve our current proposed designation for 47 Kauai ha) as critical habitat on Kauai and 357 partnerships, but further encourage species, we estimate a total of $3,570 in ac (145 ha) on Niihau, in 217 critical additional conservation actions in the projected costs resulting from critical habitat units (68 FR 9116). The final future. habitat designation could be attributable economic analysis addendum was Even if lands are excluded from a to this overlapping area, based on the adjusted to delete costs related to units critical habitat designation, if listed contracted economic analysis that was that were excluded or modified for species are present and may be affected prepared for the Newcomb’s snail biological reasons and to respond to by actions with Federal involvement proposed rule (USFWS 2008, p. 12). The public comments. No critical habitat (including actions funded, permitted, or economic analysis developed for the units in the final rule were excluded or otherwise carried out by the Federal Newcomb’s snail final rule was also modified in the final rule as a result of government), those actions will still used to inform this final designation of economic impacts.
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The final economic analysis for the 138.5 ac (55.8 ha) classified as State in these areas and are unaware of any 2003 rule estimated that the listing of Forest Reserve lands; Montane Wet – planned activities that would require the 83 plants and the designation of Section 1 includes 64 ac (26 ha) consultation. critical habitat could result in potential classified as State Forest Reserve lands; We do not anticipate more than direct economic effects ranging from Wet Cliff – Section 2 includes 296 ac minimal (if any) economic or other approximately $170,000 to $520,000. Of (119.8 ha) classified as State Forest impacts that would be additive to those that, we estimate that $37,388 to Reserve lands; Lowland Wet – Section already identified above. To ensure that $293,030 could be attributable to critical 1 includes 65 ac (26.3) in the Limahuli our final critical habitat determination habitat in the units that overlap with the Garden and Preserve, which is owned was based on the best available data, we areas designated in this final rule. These by NTBG; and Wet Cliff – Section 3 requested updated information on projected costs were associated with includes 23 ac (9.3 ha) of privately potential effects of this additional section 7 consultations related to: (1) owned land (see Table 5 for cross- designation in overlap areas, as well as game management and project reference with critical habitat unit information on potential impacts from modifications; (2) National Tropical numbers in the CFR). There is no critical habitat designation on lands not Botanical Garden lands; (3) history of section 7 consultation in these currently designated (e.g., the non- communications facilities and project areas, nor are we aware of any planned overlap areas), during the comment modifications; (4) water systems; and (5) activities in any of these areas that period. We received no comments FEMA disaster response activities would require section 7 consultation in regarding our economic impact analysis (USFWS 2008, p. 8). However, the best the future. To the extent there may be as presented in the October 21, 2008 available information indicates that consultations in the future (e.g., Federal proposed rule (73 FR 62592). none of these projected costs have been grants to assist the NTBG in managing The information provided in the realized; to the best of our knowledge, its lands or maintenance of an existing previous sections applies to the to date there have been no incremental power transmission line on the private following discussions of benefits of costs incurred as the result of the 2003 land in Wet Cliff – Section 3), any inclusion or exclusion of critical habitat. critical habitat designation. additional costs are expected to be Areas Considered for Exclusion Under The PCEs described in the 2003 Kauai minimal. Section 4(b)(2) of the Act: Alexander plants rule and those for the 47 species In summary, the areas we are and Baldwin, Inc.’s Lands in the Upper for which critical habitat is designated designating as critical habitat are Wainiha Valley here are similar. Because of this similarity, our economic impact remote, lack development potential, and In making exclusions, we evaluate the analysis (USFWS 2008) did not identify overlap with existing critical habitat benefits of designating non-Federal any additional economic costs for the units by approximately 98 percent. The lands while considering the 25,988 ac (10,517 ha) of designated economic analyses for the 83 Kauai conservation benefits to the relevant critical habitat that overlap with the plants and the Newcomb’s snail final species in this final rule and the 2003 rule beyond those identified in the critical habitat rules took into account physical and biological features previous economic analyses. Any the potential economic costs of critical essential to their conservation resulting management actions that may be habitat designation over a 10–year from the existing management plan and necessary to avoid adverse modification timeframe (2002–2012). In the economic underlying partnerships. As discussed of the existing critical habitat and PCEs impact analysis for this designation, we in the section Conservation Partnerships in the 25,988 overlapping ac (10,517 ha) have determined that over that on Non-Federal Lands above, would likely be adequate to avoid timeframe, $38,862 to $294,604 in costs conservation partnerships resulting in adverse modification of critical habitat could be attributable to critical habitat implementation of management actions designated for the additional species in designation in the units that overlap that focus on enhancement or recovery this final rule. Furthermore, both of the with the critical habitat areas designated as the management standard may prior economic analyses used an in this rule. It is important to note, provide as much or more benefit than adverse modification standard that however, that although these possible consultation for adverse modification of considered both the conservation and costs were projected in the earlier critical habitat (the primary benefit of a recovery of the species as the goal of economic analyses, since these designation). However, we must critical habitat. We are unaware of any designations in 2002 and 2003 we have evaluate each potential exclusion on a new potential impacts in these overlap had no section 7 consultations for any case-by-case basis to determine whether areas that were not considered in the of those overlapping lands. The the benefits of exclusion may outweigh previous economic analyses, and we management actions that may be the benefits of inclusion with regard to received no comments regarding the necessary to avoid adverse modification the conservation and recovery of the economic impact analysis presented in in existing critical habitat units would listed species in question. the October 21, 2008, proposed rule (73 likely also be adequate to avoid adverse In considering the benefits of FR 62592). modification of critical habitat we are including lands in a designation that are In this final rule, we are designating designating for the 47 Kauai species in covered by a current management plan, approximately 594 ac (240 ha) in six this rule because of the similar PCEs, we evaluate a number of factors to help ecosystem areas that do not completely and in both cases the consideration of us determine if the plan provides greater overlap with areas already designated as possible adverse modification similarly conservation benefits compared to those critical habitat in the 83 Kauai species holds to the standard of species that would likely result from and Newcomb’s snail final rules recovery. The remaining 2 percent (594 consultation on a critical habitat described above. The remaining areas ac, 240 ha) of land we are designating designation. Under section 4(b)(2) of the overlap with previously designated as critical habitat in this rule that does Act, we evaluate the effectiveness of critical habitat. Of the non-overlap not overlap with existing critical habitat management plans that address the areas, Montane Mesic – Section 2 is managed as State Parks and enhancement or recovery of listed includes 7.8 ac (3.16 ha) classified as Recreation Land, State Forest Reserve, species when we weigh and balance the State Parks and Recreation lands; or is owned by private individuals. We benefits of inclusion or exclusion of a Montane Mesic – Section 3 includes have no section 7 consultation history particular area from critical habitat
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designation. We consider the following Conservancy to create the State’s third private stewardship grants. These threat guidelines in evaluating the largest private nature preserve at management actions are the highest management and protection provided by Wainiha Valley (Wainiha Preserve) on priority actions identified in the such plans: Kauai. The 7,050 ac (2,853 ha) preserve management plan for this area and will (1) Whether the plan is complete and includes one of Kauai’s largest river create a stable ecosystem environment provides management and protection of systems, mountain cliffs, and portions for future restoration activities (e.g., the features essential to the conservation of the Alakai wilderness and Mt. reintroduction of individuals of rare of the species for which critical habitat Waialeale summit region. The Nature native species) (M. Clark, 2009b, p. 5). is being designated; Conservancy is coordinating all These management actions will further (2) Whether there is a reasonable management actions within the Wainiha reduce the primary threats identified for expectation that the conservation Preserve, most of which is in steep, the 21 Kauai species identified in this management strategies and actions will remote areas that are accessible only by rule that occur on these lands, thus be implemented for the foreseeable helicopter. In support of the Wainiha resulting in a significant conservation future, based on past practices, written Preserve and the upper Wainiha Valley, benefit to these species. guidance, or regulations; and which includes 1,052 ac of A & B lands The Nature Conservancy also (3) Whether the plan provides included in the proposed critical habitat launched The Forest Recovery Project in conservation strategies and measures designation, TNC is implementing the 2007. This is a series of concentrated consistent with currently accepted actions to evaluate methods for effective principles of conservation biology and East Alakai Protective Fencing Project Management Plan (TNC 2008), with progress in native ecosystem that there are provisions for adaptive preservation by focusing efforts on support of the Service’s Partners for management. reducing and controlling nonnative Fish and Wildlife program, and is We balance the benefits of inclusion plants and animals (TNC in Hawaii – undertaking the following management against the benefits of exclusion by Forest Recovery Project 2007b). Initially, actions to protect and preserve considering the benefits of preserving research was conducted to evaluate the approximately 2,000 ac (809 ha) of partnerships and encouraging effectiveness of conservation fencing in Kauai’s watershed and the species it development of additional conservation preventing feral ungulate impacts to supports (including 18 of the 44 plant plans in the future. native forest ecosystems and watershed species with critical habitat designated A portion of Montane Wet Section 1 on Kauai, Maui, and Molokai, and to (Kauai Plants Critical Habitat Unit 18– in this final rule, the akikiki, the akekee, study animal behavior and movement Montane Wet; Loxops caeruleirostris Drosophila sharpi, and numerous other patterns. The results of this work are not Unit 4 – Montane Wet; Oreomystis listed species) located within a portion yet available. Other management bairdi Unit 1 – Montane Wet; of the eastern Alakai plateau between activities, scheduled to begin in 2009, Drosophila attigua Unit 4 – Montane Wainiha Valley and Mt. Waialeale: (1) include trapping of feral pigs, and Wet, as described in the proposed rule) Construction of approximately 4.48 mi control of priority nonnative plants on private land owned by Alexander (7.2 km) of strategically placed fencing (Kauai Watershed Alliance (KWA) and Baldwin, Inc. (A & B) is occupied (using natural barriers and steep cliffs) 2009). habitat for Astelia waialealae, Keysseria to enclose approximately 595 ac (241 McBryde Sugar Co., Ltd., A & B’s erici, K. helenae, and Labordia pumila, ha) of the Alakai Wilderness Preserve subsidiary, is one of 10 official members and unoccupied habitat for akikiki, and approximately 1,405 ac (569 ha) of of the Kauai Watershed Alliance (KWA). akekee, Drosophila sharpi, and 14 plant MacBryde Sugar Co. land (subsidiary of Established in 2003, the KWA is a species (Chamaesyce remyi var. remyi, A & B) to exclude feral pigs (TNC 2008, voluntary partnership of most of the Dryopteris crinalis var. podosorus, p. 3); (2) remote sensing of Wainiha major public and private landowners in Dubautia kalalauensis, Dubautia Valley to produce distribution maps of the forest reserve boundary, and is waialealae, Geranium kauaiense, the highly invasive nonnative committed to the long term protection of Labordia helleri, Lysimachia Australian tree fern (Sphaeropteris Kauai’s upper watershed areas (KWA daphnoides, Melicope degeneri, cooperi) and other weed species (A. 2009). The Nature Conservancy and the Melicope puberula, Myrsine mezii, Ballinger, 2008, p. 2) and (3) on-the- Service, although not official members, Phyllostegia renovans, Platydesma ground control of Australian tree fern work closely with the members of the rostrata, Psychotria grandiflora, and and other nonnative highly invasive KWA to achieve their conservation Tetraplasandra flynii). This triangular- weeds in Wainiha Valley (A. Ballinger, goals. The KWA is pursuing three shaped area of 1,052 ac (426 ha), 2008, p. 2; M. Clark, USFWS, 2009a). management programs (for ungulates, bordering the Wainiha Preserve, is Construction of the fence is expected to weeds, and watershed monitoring) with located at the head of Wainiha Valley, begin in late summer 2009 and will be the aim of protecting Kauai’s watershed abutting the Alakai plateau to the west, completed within 12 months (TNC from invasive nonnative animals, and the precipitous cliffs between 2008, p. 33). After the fence is plants, and other threats (Kauai Wainiha Valley and Lumahai Valley to constructed, management activities will Watershed Management Plan (Plan) the east. This area is not designated include monitoring for feral pig sign and 2005, pp. 11, 17, 22–24). The Plan critical habitat for other species and is disturbance, removal of feral pigs and identifies the upper valley of Wainiha, characterized as boggy with dwarfed goats from the Alakai plateau and upper portions of which we proposed as native trees, shrubs, and herbs. Access Wainiha Valley, monitoring for and critical habitat, as a highest priority area to this steeply remote area is primarily removal of invasive weeds along the for management actions (KWA 2005, p. by helicopter, rarely by foot, as there are fence line, and monitoring and 6). no marked trails. The closest road is a maintenance of the fence itself (TNC The primary goal of the ungulate four-wheel-drive-vehicle-only dirt road 2008, pp. 28, 34). In addition to the management program is to maintain or leading to a picnic area approximately fencing project, A & B’s program to improve the structure and composition 7.5 mi (11 km) northwest of the Mt. remove invasive nonnative plant of the watershed’s forest by intensively Waialeale summit. In 2007, A & B species, particularly the Australian tree reducing ungulates in the highest entered into a 10–year conservation fern, has also been supported by priority management areas and agreement with The Nature funding from the Service through managing ungulates in the other priority
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areas. Feral pigs are identified as the Conservancy estimates that the aerial north shore of Kauai but there is a greatest threat to wet forested areas, control treatments have treated over potential to expand the network of including portions of the upper Wainiha one-third of all known Australian tree sensors to the Alakai plateau and other Valley, and are the highest ungulate ferns in the upper valley of Wainiha, KWA priority management areas, management priority in the ungulate including the area proposed as critical including the head of Wainiha Valley management program (KWA 2005, p. habitat (M. Clark, 2009a). Over the past (KWA 2005, p. 24). 12). The Plan identifies the four year, TNC has continued to survey for Benefits of Inclusion essential components of a successful and control nonnative kahili ginger, ungulate management program: barrier strawberry guava, and common guava The benefits of including lands in construction using strategic fences, (Psidium guajava) in the Waianiha critical habitat can be regulatory or ungulate population reduction, barrier priority management area (M. Clark, educational, which can aid in maintenance and inspection, and 2009a). promoting the recovery of species. The principal regulatory benefit of monitoring for the presence of The primary goal of the watershed designating critical habitat in this area ungulates. The construction of the east monitoring program is to measure the would be that Federal actions affecting Alakai protective fence (see above), an efficacy of the management actions the critical habitat of akikiki, akekee, essential component of KWA’s ungulate outlined in the Plan and determine if Astelia waialealae, Chamaesyce remyi management program, will benefit 18 of these actions are improving the var. remyi, Drosophila sharpi, the 44 plant species with critical habitat hydrological and ecological integrity of designated in this rule, the akikiki and Dryopteris crinalis var. podosorus, the watershed. This program includes Dubautia kalalauensis, Dubautia akekee, Drosophila sharpi, and monitoring for threat abatement, numerous other listed species. Once the waialealae, Geranium kauaiense, vegetation, and stream turbidity (KWA Keysseria erici, K. helenae, Labordia fence is completed management actions 2005, p. 22). Threat abatement to control feral ungulates in the fenced helleri, Labordia pumila, Lysimachia monitoring includes annual monitoring daphnoides, Melicope degeneri, area will include monitoring for and for presence or absence of feral pigs removal of feral ungulates, and fence Melicope puberula, Myrsine mezii, along transects located in the priority Phyllostegia renovans, Platydesma monitoring and maintenance (TNC management areas of the KWA 2008, p. 34). rostrata, Psychotria grandiflora, and watershed. Weed monitoring is also a Tetraplasandra flynii would require The primary goal of the weed component of this program. Initially, consultation under section 7 of the Act. management program is to maintain or aerial baseline surveys will be Consultation would ensure that a improve the structure and composition conducted to measure the effectiveness proposed Federal action does not result of the watershed’s forest by containing, of weed management actions in the in the destruction or adverse eradicating, and excluding priority KWA watershed. Aerial surveys along modification of critical habitat. The habitat-modifying weeds. The weed selected transects will be conducted at most likely Federal nexus would be management priorities identified in the 5 to 10 year intervals, starting in the associated with Service funding for Plan are Australian tree fern, kahili central Alakai plateau in 2010 (KWA management activities to control ginger (Hedychium gardnerianum), 2005, p. 23). In addition, field personnel invasive species (e.g., construction of strawberry guava (Psidium cattleianum), will conduct ground-based weed fences to exclude ungulate access; miconia (Miconia calvescens), and monitoring in priority management removal of ungulates; activities to Koster’s curse (Clidemia hirta). For areas of the KWA watershed, including control weeds, rats, and wasps). upper Wainiha Valley, the weed the 1,052 ac (426 ha) of A & B land at Potential outcomes of section 7 management program goal is weed the head of Wainiha Valley. Changes in consultations would be conservation exclusion (by conducting surveys in 3– vegetation cover indicate trends in recommendations to avoid degradation year intervals to detect and eradicate ecosystem integrity over long periods of and destruction of stands of native incipient patches of priority weeds) and time. Vegetation monitoring will be canopy and understory plants, prevention (KWA 2005, p. 19). In 2008, conducted in permanent plots destruction of native arthropods, and TNC, in collaboration with Dr. James throughout KWA’s priority management destruction of larval host plants (i.e., Leary at the University of Hawaii, began areas every 5 to 10 years, as well as Cheirodendron and Tetraplasandra field testing aerial treatments of using high-resolution aerial imagery to spp.) of Drosophila sharpi when, for Australian tree fern, and conducting on- detect changes in canopy cover over example, constructing a new fence or the-ground weed surveys in Wainiha long time periods (KWA 2005, p. 23). applying herbicides. However, these Valley (A. Ballinger, 2008, p. 2). The According to the Plan, improvements in conservation recommendations would aerial treatments consisted of a custom vegetation cover and declines in ground still be included within the KWA Plan’s fabricated aerial sprayball attached to an disturbance by ungulates will result in ungulate and weed management herbicide reservoir on the underside of reduced or low stream turbidity programs and the East Alakai Protective a helicopter that could be directed to the indicating the success of the feral Fencing Project Management Plan even growing tips of individual Australian ungulate and weed management in the absence of critical habitat tree ferns without any measurable programs and lead to improved designation. Accordingly, since the overspray onto surrounding, nontarget infiltration and aquifer recharge (KWA recommendations resulting from any vegetation. The results of the initial 2005, p. 24). While there is currently no section 7 consultation with respect to field tests were very successful and watershed-scale system to assess stream critical habitat would most likely be aerial control of Australian tree fern in turbidity on Kauai, the University of redundant with the conservation actions Wainiha Valley is currently underway. Hawaii has received funding from the already in place under current As of May 15, 2009, TNC had treated National Science Foundation to develop management, we believe that few 1,431 Australian tree ferns, on over and deploy environmental sensors, additional regulatory benefits would be more than 4,000 ac (1,619 ha) in including stream turbidity sensors, on derived from including A & B’s land in Wainiha Valley, including the area Kauai (KWA 2005, p. 24). Currently the the upper Wainiha Valley within the proposed as critical habitat in the upper development of the environmental area designated as critical habitat for valley (M. Clark, 2009a). The Nature monitoring techniques is limited to the akikiki, akekee, Astelia waialealae,
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Chamaesyce remyi var. remyi, focused on effects to recovery, the the PCEs and special management Drosophila sharpi, Dryopteris crinalis outcome of consultation is likely to be actions or protections needed for var. podosorus, Dubautia kalalauensis, the same because the actions likely to be identified areas. Here we have Dubautia waialealae, Geranium subject to consultation would have attempted to contribute to the kauaiense, Keysseria erici, K. helenae, habitat conservation as their primary educational intent of critical habitat by Labordia helleri, Labordia pumila, objective. publishing a map of the excluded area Lysimachia daphnoides, Melicope There have been no section 7 (Figure 7), thereby informing the public, degeneri, Melicope puberula, Mysine consultations with Federal agencies to State and local governments, and other mezii, Phyllostegia renovans, date for any previously listed species or landowners of the conservation value of Platydesma rostrata, Psychotria designated critical habitat on A & B the excluded area. In addition, a map grandiflora, and Tetraplasandra flynii lands, nor any section 7 conference identifying the excluded area will be beyond those conservation benefits actions involving any of the species maintained on the website of the Pacific already being achieved through the addressed in this final rule on their Islands Fish and Wildlife Office (http:// implementation of the KWA Plan (2005) lands. We do not anticipate any www.fws.gov/pacificislands/) to alert and the East Alakai Protective Fencing consultations beyond those that would the public, State and local governments, Project Management Plan (2008). be initiated for conservation-related and other landowners of the In addition, we conclude that few actions (e.g., funding for fence conservation value of this area. The regulatory benefits would be gained construction, control of nonnative plant PCEs for the species occupying this area from a designation of critical habitat on and animal species) with us and other and the special management required these lands because the consultations Federal agencies such as NRCS, and are similarly described in this final rule. conducted under both the jeopardy and conclude that the section 7 consultation In addition, the specific landowners, adverse modification standards for these process for critical habitat would be Alexander and Baldwin, Inc., are aware 21 species would not be likely to result unlikely to result in any additional of the importance of this 1,052-ac area in materially different outcomes in this protections for the 21 species for the (426 ha), and are implementing particular instance. The area is occupied reasons discussed above. The conservation actions to benefit native by Astelia waialealae, Keysseria erici, K. probability of any actions associated species through the KWA Plan and the helenae, and Labordia pumila, and with activities such as development is East Alakai Protective Fencing Project unoccupied by 17 species (akekee, very low, due to the extremely remote Management Plan (KWA 2005, pp. 1–29; akikiki, Chamaesyce remyi var. remyi, and rugged nature of this area, which is TNC 2008, pp. 1–38; M. Clark, 2009b, Drosophila sharpi, Dryopteris crinalis accessible only by foot or helicopter. pp. 5, 8). Because of this proactive var. podosorus, Dubautia kalalauensis, Furthermore, we note that the low approach, and due to the extremely Dubautia waialealae, Geranium probability of any future section 7 remote location of these lands, we kauaiense, Labordia helleri, Lysimachia consultations remains constant beyond believe that any additional educational daphnoides, Melicope degeneri, the potential expiration date of the benefits for the public at large resulting Melicope puberula, Myrsine mezii, current management agreement with from the designation of critical habitat Phyllostegia renovans, Platydesma TNC in the Wainiha Valley. on these lands would be minimal. rostrata, Psychotria grandiflora, and Consequently, we conclude there is Although the designation of critical Tetraplasandra flynii). The most likely little if any regulatory benefit of habitat may provide benefits to the Federal nexuses would be management designating critical habitat on the 1,052 recovery of a species, in this case A & activities funded in part through (1) the ac (426 ha) of A & B lands in upper B is already committed to implementing Service’s Partners for Fish and Wildlife Wainiha Valley within Montane Wet conservation actions on their lands program, and the Recovery programs, Section 1 (Kauai Plants Critical Habitat under the existing KWA Plan (2005) and and (2) the Natural Resources Unit 18–Montane Wet; Loxops the East Alakai Protective Fencing Conservation Service’s (NRCS) caeruleirostris Unit 4 – Montane Wet; Project Management Plan (TNC 2008), Environmental Quality Incentives Oreomystis bairdi Unit 1 – Montane both of which are supported by the Program, water resources program and Wet; Drosophila attigua Unit 4 – Service. Accordingly, any additional easement programs. These programs Montane Wet, as described in the benefits to the recovery of the 21 species have historically contributed funds proposed rule). beyond those already being accrued toward the construction of fences to As discussed above, a benefit of would be limited. In addition, the exclude feral ungulates and control critical habitat is its potential to serve as educational benefit of informing the weeds on KWA lands on Kauai. Service a mechanism to educate landowners, public, State and local governments, funds may also be provided for new State and local governments, and the and other parties as to the high surveys and control of invasive, public regarding the potential conservation value of this area has nonnative weeds, and rats on KWA conservation value of an area, which largely been achieved through the lands. While we acknowledge that the may aid the conservation of the species publication of this final rule and the legal standards for jeopardy and adverse by clearly delineating areas of high map of the excluded area. modification differ, with the latter conservation value and by describing BILLING CODE 4310–55–S
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BILLING CODE 4310–55–C
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Benefits of Exclusion 2). A & B went on to state that excluding voluntary support and implementation Existing A & B conservation such areas from designation can serve as of the East Alakai Protective Fencing agreements with Federal and State an acknowledgement of positive Project Management Plan. The Service agencies, their voluntary partnership in contributions to conservation and has actively supported all of these the KWA, their ongoing work with the provide a strong incentive to other conservation efforts. All of these Service’s Partners for Fish and Wildlife landowners to undertake voluntary management actions are intended to program, and their conservation conservation efforts on their lands. reduce ungulate browsing and habitat agreement with TNC establishing and In 2002, the Service excluded from conversion, reduce competition with managing the Wainiha Preserve designation of critical habitat for the nonnative weeds, and preserve overall demonstrate their commitment to Newcomb’s snail a 566-acre parcel of ecosystem integrity; these actions will prudent stewardship of their land and land owned by A & B in the Wainiha thus address primary threats to the water resources to ensure the protection River Valley. This exclusion was based species, and are consistent with the of large areas of forested watersheds for upon the Service’s determination that ecosystem-based approach to water recharge and other benefits of designation of critical habitat would conservation envisioned in this final intact forested ecosystems. A & B’s have a negative effect on the voluntary rule. continued voluntary participation in the landowner conservation activities in the A & B has demonstrated a strong KWA and implementation of the KWA Valley, both ongoing and in history of voluntary conservation efforts Plan, implementation of the East Alakai development, including a possible that directly benefit threatened and future introduction of the species as an Protective Fencing Project Management endangered species, both on Kauai and experimental population on A & B lands Plan, and voluntary conservation other Hawaiian islands. Past (67 FR 54048-54049). Specifically, A & agreement with TNC for management of conservation actions by A & B and its B had informed the Service they were in the Wainiha Preserve will specifically subsidiaries have ranged from allowing the process of negotiating a voluntary benefit akekee, akikiki, Astelia access on their lands for surveys and conservation easement with TNC to waialealae, Chamaesyce remyi var. site visits to the provision of staff and provide more active management of the remyi, Drosophila sharpi, Dryopteris funding for active collaborative valley for watershed protection and that crinalis var. podosorus, Dubautia conservation partnerships. In addition those negotiations, which would benefit kalalauensis, Dubautia waialealae, to the examples specific to the Wainiha the Newcomb’s snail by protecting its Valley described above, A& B has Geranium kauaiense, Keysseria erici, K. habitat, could be negatively affected if helenae, Labordia helleri, Labordia critical habitat were designated on their allowed access to survey and monitor pumila, Lysimachia daphnoides, land. The Service concluded in its endangered cave species in the Koloa Melicope degeneri, Melicope puberula, 4(b)(2) analysis that the benefits of area of Kauai, including surveys for the Mysine mezii, Phyllostegia renovans, exclusion of the A & B parcel blind cave spider and amphipod; Platydesma rostrata, Psychotria outweighed the benefits of inclusion in worked in partnership with TNC to grandiflora, and Tetraplasandra flynii the critical habitat designation. The fence Kanaele Bog in Kauai on their through actions that manage and reduce Service’s conclusion was based on, lands and protect the native bog the primary threats to these species among other things, A & B’s current community of plants and invertebrates (feral ungulates and invasive plant conservation activities and those in from habitat degradation and species) and restore native species development, the need for A & B’s fragmentation; has donated land and habitat and ecosystem function. The cooperation and good will for future supported or participated in numerous KWA Plan provides a significant conservation efforts for the Newcomb’s conservation activities at or around conservation benefit to these 21 species, snail, and the likelihood that A & B Kealia Pond National Wildlife Refuge on and we have a reasonable expectation would curtail voluntary conservation Maui, which itself was established in that the strategies and measures will be efforts if critical habitat was designated 1992 as a perpetual conservation effective. In response to the proposed on their lands. easement from A & B; and has actively designation of critical habitat for the 47 Subsequent events have validated the participated in the East Maui Watershed Kauai species, A & B informed us that Service’s determination to exclude A & Partnership, a collaborative multi-party the conservation management activities B’s parcel from the Newcomb’s snail organization leading the conservation of supported by the agreement to establish designation. No regulatory benefits land and water resources in the east Wainiha Preserve will substantially and appear to have been foregone, as there Maui mountains. Some other A & B directly benefit endangered species and have been no projects with a federal conservation efforts include: protecting their habitat in the valley (A & B 2008, nexus that would have triggered coastal habitat by assisting Kealia Pond p. 1); A & B further stated that they consultation under the adverse- NWR with installation of recycled fence believe the designation of critical modification standard had critical to prevent off-road vehicles from habitat is unnecessary and will result in habitat been designated. Moreover, A & accessing Ma’alaea flats; donating little if any additional benefit to the B granted TNC the conservation coastal land to accommodate the Kealia species (A & B 2008, p. 2). In addition, easement, and has continued to work Coastal Boardwalk parking area and A & B stated that designation of critical proactively with the Service and its cooperation with construction of the habitat in areas where the objective of conservation partners. Native species, boardwalk; allowing FWS to install a designation is already being met by including 21 species covered by this fence to benefit endangered turtles on voluntary landowner efforts may final rule, are benefiting substantially their lands along North Kihei Road; discourage other landowners from from A & B’s voluntary participation in working with the refuge, Maui County, pursuing similar conservation the KWA and support of the KWA’s and Kihei Canoe Club to clean up their agreements, since the Service is management actions; A & B’s coastal strip along North Kihei Road; imposing a layer of federal regulation establishment of the Wainiha Preserve and working with the refuge and local that is unnecessary to achieve the and support of the management actions community to install boulders and intended conservation goals, thereby in Wainiha Valley, including the A & B concrete posts to prevent erosion and resulting in an overall negative impact lands at the head of Wainiha Valley access to dunes along North Kihei Road. on species conservation (A & B 2008, p. proposed as critical habitat; and A & B’s subsidiary HC&S assisted with
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the installation of a 2000 ft water B is likely to provide substantial continued cooperation with A & B or to distribution line for Kealia Pond. In conservation benefits to the 48 Kauai the formation of new working addition, an HC&S representative has species, and will additionally support partnerships with other private been a member of the Mokulele continued cooperative conservation landowners in the islands, thus Highway Beautification Committee and efforts for the benefit of numerous listed resulting in a net loss of conservation involved with the Maui West Nile Virus and native species and ecosystems in benefit. Team. A & B continues to work other areas of the Hawaiian Islands as We believe that excluding 1,052 ac cooperatively with the Service and other well. (426 ha) of A & B lands at the head of Federal and State agencies as well as We are unaware of any incremental Wainiha Valley from critical habitat on nongovernmental organizations on economic impacts of designating critical the basis of other considerations (e.g., various conservation agreements, thus habitat in Section 1 (Kauai Plants other relevant impacts) will help ongoing conservation partnerships with Critical Habitat Unit 18–Montane Wet; maintain and improve our partnership A & B have a proven conservation Loxops caeruleirostris Unit 4–Montane relationship with this landowner by benefit for threatened and endangered Wet; Oreomystis bairdi Unit 1–Montane acknowledging their positive species and other resources. Based on A Wet; Drosophila attigua Unit 4– contribution to conservation on Kauai, & B’s demonstrated commitment to Montane Wet, as described in the and will result in the greatest net conservation, under current conditions proposed rule) (USFWS 2008, pp. 18, conservation benefit to the 21 Kauai the Service has a high degree of 21). Our economic impact analysis species considered on these lands in this final rule. In addition, we believe confidence that the conservation concluded there would be no this recognition may provide other management actions currently incremental costs of designation in the landowners with a positive incentive to benefiting the 21 Kauai species on A & Wainiha Valley, since section 7 undertake voluntary conservation B lands in the Upper Wainiha Valley consultation costs for any conservation activities on their lands, particularly will continue to be implemented. projects funded by the Service and where there is no regulatory We believe that exclusion of others on A & B lands in this area would requirement to implement such actions. approximately 1,052 ac (426 ha) within have occurred anyway because of the A & B’s portion of Section 1 (Kauai presence of listed plants in the Benefits of Exclusion Outweigh the Plants Critical Habitat Unit 18–Montane potentially affected area (USFWS 2008, Benefits of Inclusion Wet; Loxops caeruleirostris Unit 4 – pp. 18, 21). In their comments on the Based on the above considerations Montane Wet; Oreomystis bairdi Unit 1 proposed designation, A & B informed and consistent with the direction – Montane Wet; Drosophila attigua Unit us that critical habitat designation on provided in section 4(b)(2) of the Act, 4 – Montane Wet, as described in the private lands can have unintended the Service has determined that the proposed rule) will acknowledge A & negative consequences for landowners, benefits of excluding Wainiha Valley as B’s conservation commitment and particularly with regard to private critical habitat for the 21 Kauai species facilitate their continued cooperation property rights and land values, and can that occupy this unit outweigh the and partnership with the Service. This serve as a disincentive for landowners benefits of including it as critical area has been actively managed by the to participate in voluntary conservation habitat. This conclusion is based on the KWA since 2005 and the Wainiha efforts (S. O’Keefe, A & B 2008, p. 1). following factors: Preserve was established in 2007 under This claim, that private landowners may 1. We believe the proactive a 10–year conservation agreement with often perceive regulatory actions by the management of habitat for akekee, TNC. Based on A & B’s strong history of Federal government in such a way as to akikiki, Astelia waialealae, Chamaesyce conservation in the islands, we expect have a negative impact on conservation, remyi var. remyi, Drosophila sharpi, the conservation management strategies is supported by the best available Dryopteris crinalis var. podosorus, and actions will continue to be science on this topic (e.g., Main et al. Dubautia kalalauensis, Dubautia implemented for the benefit of 21 1999, pp. 1264-1265; Bean 2002, pp. 2– waialealae, Geranium kauaiense, species covered in this final rule. There 3; Brook et al. 2003, pp. 1639-1648; Keysseria erici, K. helenae, Labordia is a risk that designating critical habitat Conley et al. 2007, pp. 141,144). With helleri, Labordia pumila, Lysimachia on these A & B lands in the Wainiha specific regard to land values, however, daphnoides, Melicope degeneri, Valley could undermine A & B’s A & B provided no information Melicope puberula, Mysine mezii, conservation partnership with the KWA demonstrating that the designation of Phyllostegia renovans, Platydesma and TNC, remove A & B’s incentive to critical habitat on Kauai has had rostrata, Psychotria grandiflora, and accept the additional time and expense negative impacts on land values, and we Tetraplasandra flynii provided under of management planning, strain the are unaware that land values have KWA’s Plan (2005), the East Alakai positive working relationship we share, declined there or elsewhere in the State Protective Fencing Project Management and hinder future cooperative solely due to a critical habitat Plan, and the 10–year conservation conservation projects with A & B and designation. Therefore, we have agreement with TNC for management of other potential partners. Because the examined the economic impacts of the Wainiha Preserve will achieve Federal government owns relatively critical habitat designation on 1,052 ac important conservation goals supported little land in the State of Hawaii, and (426 ha) of A & B lands and conclude by the Service and provide significant because large tracts of land suitable for that there is likely no economic benefit benefits to these species. The voluntary the conservation of threatened and to excluding these lands from critical conservation efforts taking place on A & endangered species are often owned by habitat because of economic impacts. B lands in the Wainiha Valley serve to private landowners, the successful However, as described above, in an area manage and reduce the primary threats recovery of listed species in Hawaii is where the preservation of partnerships (feral ungulates and invasive plant particularly dependent upon effective is so important to accomplishing species) to these 21 species and restore working partnerships and the voluntary conservation (Crouse et al. 2002, p. native species habitat and ecosystem cooperation of non-Federal landowners. 720), the potentially negative perception function; these actions are vitally Preserving the successful conservation of critical habitat designation on private important for achieving recovery of partnership we currently hold with A & lands may serve as a real disincentive to these listed species. In the past, A & B
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has cooperated with the Service, the achieved the educational intent of partnership between A & B and the State, and other organizations to critical habitat through the publication Service in the Wainiha Valley and in implement voluntary conservation of this final rule and mapping of the other important conservation areas in activities on their lands that have excluded area to identify its the islands. In addition, we believe resulted in tangible conservation conservation value; and (f) given the there is a significant conservation benefits. Based on their demonstrated extremely remote location of the area, benefit to be gained for the 21 Kauai past commitment to conservation, we the educational value of critical habitat species that are the subject of this believe it is reasonable to expect these in terms of informing the public or other exclusion as well as other listed species positive conservation management entities of the conservation worth of this throughout the islands by actions to continue in the Wainiha area is likely minimal. acknowledging partners who have made Valley. In conclusion, we find that the significant contributions to 2. Excluding this area from critical designation of critical habitat on A & B conservation, thus serving as a model habitat will help maintain and improve lands in the upper Wainiha Valley and incentive for other private our partnership relationship with this would most likely have a net negative landowners to develop similar landowner. A & B has commented that conservation effect on the listed species conservation partnerships. We, the designation of critical habitat in as well as on other conservation therefore, are excluding 1,052 ac (426 Wainiha Valley as originally proposed activities. The overall benefits of a ha) of A & B lands in the upper Wainiha (73 FR 62592; October 21, 2008) will critical habitat designation for the listed Valley that are within Section 1 (Kauai likely have a negative impact on species would be small, and we believe Plants Critical Habitat Unit 18 – ongoing and future voluntary there is a greater probability of positive Montane Wet; Loxops caeruleirostris conservation efforts by A & B, and that conservation activities continuing in the Unit 4 – Montane Wet; Oreomystis other private landowners may be Wainiha Valley without designated bairdi Unit 1 – Montane Wet; dissuaded from entering into such critical habitat than there would be with Drosophila attigua Unit 4 – Montane voluntary agreements as well. We critical habitat. The landowner has Wet, as described in the proposed rule) believe that designating critical habitat stated that they are more likely to from the critical habitat designation on these lands over the objections of the under section 4(b)(2) of the Act. We will continue and increase their ongoing landowner, our proven conservation reevaluate our determination to exclude voluntary conservation efforts absent a partner A & B, could create a 1,052 ac (426 ha) of A & B lands in the critical habitat designation. They have disincentive for other landowners who upper Wainiha Valley if, in the future, furthermore indicated that other private might otherwise considering partnering A & B withdraws from voluntary landowners are unlikely to enter into with the Service to achieve conservation participation in any of the beneficial similar cooperative agreements if goals, but who desire to avoid possible conservation actions described above, or critical habitat is designated, a Federal regulation under the Act. Given if the ownership of this area should supposition supported by the literature. the importance of such cooperative change. partnerships in achieving the Furthermore, we agree that designating conservation and recovery of listed critical habitat in this area, over the Exclusion Will Not Result in Extinction species in Hawaii, and considering the publicly-stated objections of a partner of the Species voluntary actions of A & B are currently with a strong track record of We have determined that the contributing to the management and consistently providing positive exclusion of A & B’s portion of Section reduction of the primary threats to the contributions to conservation, may well 1 (Kauai Critical Habitat Unit 18 – listed species, namely feral ungulates serve as a deterrent to other landowners Montane Wet; Loxops caeruleirostris and invasive nonnative plants, the who might otherwise consider entering Unit 4 – Montane Wet; Oreomystis designation of critical habitat in into voluntary management agreements. bairdi Unit 1 – Montane Wet; Wainiha Valley may result in a net loss We believe the continued Drosophila attigua Unit 4 – Montane of conservation benefit. implementation of the KWA’s ongoing Wet, as described in the proposed rule) 3. Given the current beneficial management programs and the East from the final designation of critical management of A & B lands in the Alakai Protective Fencing Project habitat will not result in the extinction Wainiha Valley and the likelihood that Management Plan, programs actively of akekee, akikiki, Astelia waialealae, this beneficial conservation supported by the Service due to their Chamaesyce remyi var. remyi, management will continue, the benefits significant conservation benefits for Drosophila sharpi, Dryopteris crinalis of including the 1,052 ac (426 ha) of A numerous listed species as well as the var. podosorus, Dubautia kalalauensis, & B lands as critical habitat would likely ecosystem as a whole, will provide Dubautia waialealae, Geranium be minor. This determination is based comparable or greater net conservation kauaiense, Keysseria erici, K. helenae, on the fact that: (a) There have been no benefits than those that would result Labordia helleri, Labordia pumila, section 7 conference actions in the area from critical habitat designation. The Lysimachia daphnoides, Melicope for these 21 species since we published exclusion of these lands would accrue degeneri, Melicope puberula, Mysine the October 21, 2008 proposed rule (73 significant conservation benefits mezii, Phyllostegia renovans, FR 62592); (b) we anticipate few if any resulting from A & B’s voluntary Platydesma rostrata, Psychotria future section 7 consultations in this participation in the KWA; the grandiflora, and Tetraplasandra flynii. remote, largely inaccessible area, apart conservation agreement with TNC for A & B’s voluntary participation in the from those beneficial actions related to Wainiha Preserve; implementation of KWA and support of the KWA’s federal conservation funding; (c) any the East Alakai Protective Fencing management actions, A & B’s future Federal actions affecting listed Project Management Plan; A & B’s establishment of the Wainiha Preserve species in this area would be subject to ongoing and continued actions to and support of the management actions section 7 consultation since the area is monitor and control invasive species, in Wainiha Valley, including the A & B occupied by 4 of the 21 species; (d) protect and restore plant habitat, lands in the upper Wainiha Valley future Federal actions in this area are monitor native species, and monitor proposed as critical habitat, and expected to be beneficial to the species; watershed integrity; and the voluntary support and implementation (e) we believe that we have largely maintenance of a strong working of the East Alakai Protective Fencing
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Project Management Plan provide Regulatory Flexibility Act Consequently, to assess whether a tangible conservation benefits that Under the Regulatory Flexibility Act ‘‘substantial number’’ of small entities is reduce the likelihood of extinction for (RFA; 5 U.S.C. 601 et seq., as amended affected by this designation, this these 21 species and increase these by the Small Business Regulatory analysis considers the relative number species’ recovery potential. We are Enforcement Fairness Act (SBREFA) of of small entities likely to be impacted in unaware of any threats on these lands 1996), whenever an agency must an area. In some circumstances, associated with Federal actions that publish a notice of rulemaking for any especially with critical habitat would require section 7 consultations. proposed or final rule, it must prepare designations of limited extent, we may In addition, since this area is occupied and make available for public comment aggregate across all industries and by 4 of the 21 species, consultations a regulatory flexibility analysis that consider whether the total number of under section 7 of the Act would be describes the effects of the rule on small small entities affected is substantial. In required, and any Federal actions that entities (small businesses, small estimating the number of small entities may affect the species would be organizations, and small government potentially affected, we also consider evaluated under the jeopardy standard jurisdictions). However, no regulatory whether their activities have any of section 7 of the Act. This evaluation flexibility analysis is required if the Federal involvement. provides assurances that the species head of the agency certifies the rule will Designation of critical habitat only would not become extinct as a result of not have a significant economic impact affects activities carried out, funded, or exclusion of these lands from on a substantial number of small permitted by Federal agencies. Some designation as critical habitat. Based on entities. SBREFA amended RFA to kinds of activities are unlikely to have all of these considerations, we therefore require Federal agencies to provide a any Federal involvement and so will not conclude that excluding this area will statement of the factual basis for be affected by critical habitat not result in the extinction of any of the certifying that the rule will not have a designation. If there is a Federal nexus, 21 species. significant economic impact on a Federal agencies will be required to With regard to other protections, substantial number of small entities. consult with us under section 7 of the section 195D–4 of Hawaii Revised Small entities include small Act on activities they fund, permit, or Statutes (endangered species and organizations, such as independent carry out that may affect critical habitat. threatened species) stipulates that nonprofit organizations; small If we conclude, in a biological opinion, species determined to be endangered or governmental jurisdictions, including that a proposed action is likely to threatened under the Federal Act shall school boards and city and town destroy or adversely modify critical be deemed endangered or threatened governments that serve fewer than habitat, we can offer ‘‘reasonable and under the State law. Under the State 50,000 residents; as well as small prudent alternatives.’’ Reasonable and law, it is unlawful, with some businesses. Small businesses include prudent alternatives are alternative exceptions, to ‘‘take’’ such species, or to manufacturing and mining concerns actions that can be implemented in a possess, sell, carry or transport them. with fewer than 500 employees, manner consistent with the scope of the The statutory protections for this wholesale trade entities with fewer than Federal agency’s legal authority and species under State law provide 100 employees, retail and service jurisdiction, that are economically and additional assurances that exclusion of businesses with less than $5 million in technologically feasible, and that would this area from critical habitat will not annual sales, general and heavy avoid destroying or adversely modifying result in extinction of one or more of the construction businesses with less than critical habitat. A Federal agency and an 21 species in this final rule that $27.5 million in annual business, applicant may elect to implement a currently occupy, or potentially could special trade contractors doing less than reasonable and prudent alternative occupy, these lands. $11.5 million in annual business, and associated with a biological opinion that has found adverse modification of Required Determinations agricultural businesses with annual sales less than $750,000. To determine critical habitat. An agency or applicant Regulatory Planning and Review if potential economic impacts to these could alternatively choose to seek an (Executive Order 12866) small entities are significant, we exemption from the requirements of the consider the types of activities that Act or proceed without implementing The Office of Management and Budget the reasonable and prudent alternative. (OMB) has determined that this rule is might trigger regulatory impacts under this rule, as well as the types of project However, unless an exemption were not significant under Executive Order obtained, the Federal agency or 12866 (E.O. 12866). OMB bases its modifications that may result. In ‘‘ applicant would be at risk of violating determination upon the following four general, the term significant economic ’’ section 7(a)(2) of the Act if it chose to criteria: impact is meant to apply to a typical small business firm’s business proceed without implementing the (a) Whether the rule will have an operations. reasonable and prudent alternatives. We annual effect of $100 million or more on To determine if a designation of may also identify discretionary the economy or adversely affect an critical habitat could significantly affect conservation recommendations economic sector, productivity, jobs, the a substantial number of small entities, designed to minimize or avoid the environment, or other units of the we consider the number of small adverse effects of a proposed action on government. entities affected within particular types critical habitat, help implement (b) Whether the rule will create of economic activities (e.g., housing recovery plans, or to develop inconsistencies with other Federal development, grazing, oil and gas information that could contribute to the agencies’ actions. production, timber harvesting). We recovery of the species. (c) Whether the rule will materially apply the ‘‘substantial number’’ test Within this critical habitat affect entitlements, grants, user fees, individually to each industry to designation, the types of actions or loan programs, or the rights and determine if certification is appropriate. authorized activities that we have obligations of their recipients. However, the SBREFA does not identified as potential concerns and that (d) Whether the rule raises novel legal explicitly define ‘‘substantial number’’ are subject to consultation under section or policy issues. or ‘‘significant economic impact.’’ 7 if there is a Federal nexus include:
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• Activities that might affect the primary to protect the 47 Kauai species. The entities. The RFA/SBREFA defines constituent elements for the species kinds of actions that may be included if ‘‘small governmental jurisdiction’’ as the including, but not limited to, the future reasonable and prudent government of a city, county, town, following: grazing; maintaining or alternatives become necessary include school district, or special district with a increasing feral ungulate levels; conservation set-asides, management of population of less than 50,000. By this clearing or cutting native live trees competing nonnative species, definition, Kauai County is not a small and shrubs (e.g., woodcutting, restoration of degraded habitat, and governmental jurisdiction because its bulldozing, construction, road regular monitoring. These measures are population was 58,463 in 2000. Certain building, mining, herbicide not likely to result in a significant State agencies may be affected by the application); and taking actions that economic impact to project proponents. critical habitat designation—, such as pose a risk of fire. In addition, Federal agencies may also the Department of Land and Natural • Activities that may alter watershed need to reinitiate a previous Resources and the State Department of characteristics in ways that would consultation if discretionary Transportation, may be affected by the reduce groundwater recharge or involvement or control over the Federal critical habitat designation.. However, alter natural, wetland, or vegetative action has been retained or is authorized for the purposes of the RFA, State communities. Such activities by law and the activities may affect governments are considered include new water diversion or critical habitat. However, between 2002 independent sovereigns, not small impoundment, groundwater and 2007, there were no formal governments. Because of Federal pumping, and manipulation of consultations and 55 informal involvement, TNC and NTBG could be vegetation through activities such consultations on Kauai, in addition to affected by the critical habitat as the ones mentioned above. consultations on Federal grants to State designation and would possibly be • Recreational activities that may wildlife programs (which would not considered to be small organizations. degrade vegetation. affect small entities). The majority of the The SBREFA defines ‘‘small • Mining sand or other minerals. consultations were related to project organization’’ as any not-for-profit • Introducing or encouraging the spread effects on seabird flyways, nesting by enterprise which is independently of nonnative plant species. endangered water birds, or roosting by • owned and operated and is not Importing nonnative species for the endangered Hawaiian hoary bat dominant in its field. We determined research, agriculture, and (opeapea). Several consultations were that TNC and NTBG are both large aquaculture, and releasing conducted with the U.S. Department of organizations that are dominant in biological control agents. Agriculture (Natural Resources Kauai County in their respective fields. None of the critical habitat units Conservation Service (NRCS)) for The significant overlap between the contain significant residential, proposed funding for habitat restoration critical habitat designation for the 83 commercial, industrial, or golf-course projects under the Wildlife Habitat species and this critical habitat projects; crop farming; or intensive Incentives Program (WHIP), and one designation is further evidence that this livestock operations. Few projects are was conducted with the Navy for weed designation will not have a significant planned for locations in the designated removal at the Pacific Missile Range economic impact on a substantial critical habitat. This situation reflects Facility (PMRF). Five of the 55 informal number of small entities. the fact that (1) most of the land is consultations concerned designated In summary, we have considered unsuitable for development, farming, or critical habitat, and we concurred with whether this designation would result other economic activities due to the each agency’s determination that the in a significant economic effect on a rugged mountain terrain, lack of access, project, as proposed, was not likely to substantial number of small entities. For and remote locations; and (2) existing adversely affect critical habitat. In this the above reasons and based on land-use controls severely limit final rule, we are designating critical currently available information, we development and most other economic habitat on a total of 26,582 ac (10,757 certify that the designation of critical activities in the mountainous interior of ha) of land. Ninety-eight percent (25,988 habitat for the 47 species will not have Kauai. Although some existing and ac (10,517 ha)) of this designated critical a significant effect on a substantial continuing activities involve the habitat designation is already critical number of small entities. Federal operation and maintenance of existing habitat for one or more species, and two involvement, and thus section 7 manmade features and structures in percent (594 ac (240 ha)) of the consultations, would be limited to a certain areas, these areas do not contain designation is on lands newly subset of the area designated. The most the primary constituent elements for the designated as critical habitat. However, likely Federal involvement could species, and would not be impacted by none of the Federal actions that were include funding provided by NRCS and the designation. Any existing and subject to previous section 7 the Service for habitat restoration planned projects, land uses, and consultation are on the lands we are projects. A regulatory flexibility analysis activities that could affect the designating as critical habitat in this is not required. designated critical habitat but have no final rule. Therefore, there is no Federal involvement would not require requirement to reinitiate consultation Unfunded Mandates Reform Act section 7 consultation with the Service, for any ongoing Federal projects. In accordance with the Unfunded so they are not restricted by the In the 2001 economic analysis of the Mandates Reform Act (2 U.S.C. 1501 et requirements of the Act. Finally, for the designation of critical habitat for 83 seq.), we make the following findings: anticipated projects and activities that species of plants from the islands of (a) This designation of critical habitat will have Federal involvement, many Kauai and Niihau, we evaluated the will not produce a Federal mandate. In are conservation efforts that will not potential economic effects on small general, a Federal mandate is a negatively impact the species or their business entities resulting from the provision in legislation, statute, or habitat, so they will be subject to a protection of these plant species and regulation that would imposes an minimal level of informal section 7 their habitat related to the designation enforceable duty upon State, local, or consultation. We anticipate that a of critical habitat and determined that it tribal governments, or the private sector, developer or other project proponent would not have a significant economic and includes both ‘‘Federal could modify a project or take measures impact on a substantial number of small intergovernmental mandates’’ and
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‘‘Federal private sector mandates.’’ by the State of Hawaii and private features essential to the conservation of These terms are defined in 2 U.S.C. citizens. None of these entities fit the the species within the designated areas 658(5)-(7). ‘‘Federal intergovernmental definition of ‘‘small governmental to assist the public in understanding the mandate’’ includes a regulation that jurisdiction.’’ Therefore, a Small habitat needs of each of the 47 species ‘‘would impose an enforceable duty Government Agency Plan is not for which critical habitat is designated upon State, local, or tribal governments’’ required. in this final rule. with two exceptions. It excludes ‘‘a Takings Paperwork Reduction Act of 1995 (44 condition of Federal assistance.’’ It also U.S.C. 3501 et seq.) excludes ‘‘a duty arising from In accordance with E.O. 12630 participation in a voluntary Federal (Government Actions and Interference This rule does not contain any new program,’’ unless the regulation ‘‘relates with Constitutionally Protected Private collections of information that require to a then-existing Federal program Property Rights), we have analyzed the approval by OMB under the Paperwork under which $500,000,000 or more is potential takings implications of Reduction Act of 1995 (44 U.S.C. 3501 provided annually to State, local, and designation of critical habitat for each of et seq.). This rule will not impose tribal governments under entitlement the 47 species in a takings implications recordkeeping or reporting requirements authority,’’ if the provision would assessment. The takings implications on State or local governments, ‘‘increase the stringency of conditions of assessment concludes that this individuals, businesses, or assistance’’ or ‘‘place caps upon, or designation of critical habitat for each of organizations. An agency may not otherwise decrease, the Federal these species does not pose significant conduct or sponsor, and a person is not Government’s responsibility to provide takings implications for lands within or required to respond to, a collection of funding,’’ and the State, local, or tribal affected by the designation. information unless it displays a currently valid OMB control number. governments ‘‘lack authority’’ to adjust Federalism accordingly. At the time of enactment, In accordance with E.O. 13132 National Environmental Policy Act these entitlement programs were: (NEPA) Medicaid; AFDC work programs; Child (Federalism), this final rule does not Nutrition; Food Stamps; Social Services have significant Federalism effects. A It is our position that, outside the Block Grants; Vocational Rehabilitation Federalism assessment is not required. jurisdiction of the United States Court of State Grants; Foster Care, Adoption In keeping with Department of the Appeals for the Tenth Circuit, we do not Assistance, and Independent Living; Interior and Department of Commerce need to prepare environmental analyses Family Support Welfare Services; and policy, we requested information from, as defined by NEPA (42 U.S.C. 4321 et Child Support Enforcement. ‘‘Federal and coordinated development of, this seq.) in connection with designating private sector mandate’’ includes a final critical habitat designation with critical habitat under the Act. We regulation that ‘‘would impose an appropriate State resource agencies in published a notice outlining our reasons enforceable duty upon the private Hawaii. The designation of critical for this determination in the Federal sector, except (i) a condition of Federal habitat for each of these species Register on October 25, 1983 (48 FR assistance or (ii) a duty arising from (excluding Pritchardia hardyi for which 49244). This assertion was upheld by participation in a voluntary Federal no critical habitat has been designated) the United States Court of Appeals for program.’’ imposes no additional restrictions to the Ninth Circuit (Douglas County v. The designation of critical habitat those currently in place and, therefore, Babbitt, 48 F.3d 1495 (9th Cir. 1995), does not impose a legally binding duty has little incremental impact on State cert. denied 516 U.S. 1042 (1996)). and local governments and their on non-Federal Government entities or Government-to-Government activities. The designation may have private parties. Under the Act, the only Relationship with Tribes regulatory effect is that Federal agencies some benefit to these governments must ensure that their actions do not because the areas that contain the In accordance with the President’s destroy or adversely modify critical features essential to the conservation of memorandum of April 29, 1994, habitat under section 7. While non- the species are more clearly defined, Government-to-Government Relations Federal entities that receive Federal and the primary constituent elements of with Native American Tribal funding, assistance, or permits, or that the habitat necessary to the conservation Governments (59 FR 22951), E.O. 13175, otherwise require approval or of the species are specifically identified. and the Department of Interior’s manual authorization from a Federal agency for This information does not alter where at 512 DM 2, we readily acknowledge an action, may be indirectly impacted and what federally sponsored activities our responsibility to communicate by the designation of critical habitat, the may occur. However, it may assist local meaningfully with recognized Federal legally binding duty to avoid governments in long-range planning tribes on a government-to-government destruction or adverse modification of (rather than having them wait for case- basis. In accordance with Secretarial critical habitat rests squarely on the by-case section 7 consultations to Order 3206 of June 5, 1997 (American Federal agency. Furthermore, to the occur). Indian Tribal Rights, Federal-Tribal extent that non-Federal entities are Trust Responsibilities, and the Civil Justice Reform indirectly impacted because they Endangered Species Act), we readily receive Federal assistance or participate In accordance with E.O. 12988 (Civil acknowledge our responsibilities to in a voluntary Federal aid program, the Justice Reform), the Office of the work directly with tribes in developing Unfunded Mandates Reform Act would Solicitor has determined that the rule programs for healthy ecosystems, to not apply, nor would critical habitat does not unduly burden the judicial acknowledge that tribal lands are not shift the costs of the large entitlement system and that it meets the subject to the same controls as Federal programs listed above onto State requirements of sections 3(a) and 3(b)(2) public lands, to remain sensitive to governments. of the Order. We are designating critical Indian culture, and to make information We do not believe that this rule will habitat in accordance with the available to tribes. We have determined significantly or uniquely affect small provisions of the Act. This final rule that there are no recognized Federal governments. The lands we are uses standard property descriptions and tribes in the State of Hawaii, and there designating as critical habitat are owned identifies the physical and biological are no tribal lands essential for the
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conservation of the 47 Kauai species for energy action, and no Statement of Code of Federal Regulations, as set forth which we are designating critical Energy Effects is required. below: habitat. Therefore, this final designation References Cited of critical habitat does not involve any PART 17—[AMENDED] A complete list of references cited in tribal lands. ■ this rule is available upon request from 1. The authority citation for part 17 Energy Supply, Distribution, or Use the Field Supervisor, Pacific Islands continues to read as follows: On May 18, 2001, the President issued Fish and Wildlife Office (see Authority: 16 U.S.C. 1361–1407; 16 U.S.C. an Executive Order (E.O. 13211; Actions ADDRESSES). 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 625, 100 Stat. 3500; unless otherwise noted. Concerning Regulations That Authors Significantly Affect Energy Supply, ■ 2. Amend § 17.11(h), the List of Distribution, or Use) on regulations that The authors of this document are the Endangered and Threatened Wildlife, as significantly affect energy supply, staff members of the Pacific Islands Fish follows: and Wildlife Office, Fish and Wildlife distribution, and use. E.O. 13211 ■ a. By adding entries for ‘‘Akekee Service (see FOR FURTHER INFORMATION requires agencies to prepare Statements (honeycreeper)’’ and ‘‘Akikiki CONTACT). of Energy Effects when undertaking (honeycreeper)’’ in alphabetical order certain actions. This final rule to List of Subjects in 50 CFR Part 17 under BIRDS; and designate critical habitat for 47 of the 48 ■ Endangered and threatened species, b. By adding an entry for ‘‘Fly, species is not a significant regulatory Exports, Imports, Reporting and Hawaiian picture-wing’’ (Drosophila action under E.O. 12866. We do not recordkeeping requirements, sharpi) in alphabetical order under expect it to significantly affect energy Transportation. INSECTS, to read as set forth below. supplies, distribution, or use because § 17.11 Endangered and threatened these areas are not presently used for Regulation Promulgation energy production, and we are unaware wildlife. of any future plans in this regard. ■ Accordingly, we amend part 17, * * * * * Therefore, this action is not a significant subchapter B of chapter I, title 50 of the (h) * * *
Species Vertebrate population Historic where en- Status When listed Critical habi- Special Common name Scientific name range dangered or tat rules threatened
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BIRDS
Akekee(honeycreeper) Loxopscaeruleirostris U.S.A. (HI) Entire E 765 17.95(b) NA
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Akikiki (honeycreeper) Oreomystis bairdi U.S.A. (HI) Entire E 765 17.95(b) NA
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INSECTS
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Fly, Hawaiian picture- Drosophila sharpi U.S.A. (HI) NA E 765 17.95(i) NA wing
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■ 3. Amend § 17.12(h), the List of Dubautia waialealae, Geranium alphabetical order under FLOWERING Endangered and Threatened Plants, as kauaiense, Keysseria erici, Keysseria PLANTS; and follows: helenae, Labordia helleri, Labordia ■ b. By adding entries for Diellia ■ a. By adding entries for Astelia pumila, Lysimachia daphnoides, mannii, Doryopteris angelica, and waialealae, Canavalia napaliensis, Lysimachia iniki, Lysimachia pendens, Dryopteris crinalis var. podosorus in Chamaesyce eleanoriae, Chamaesyce Lysimachia scopulensis, Lysimachia alphabetical order under FERNS AND remyi var. kauaiensis, Chamaesyce venosa, Melicope degeneri, Melicope ALLIES, to read as set forth below. remyi var. remyi, Charpentiera paniculata, Melicope puberula, Myrsine densiflora, Cyanea dolichopoda, Cyanea knudsenii, Myrsine mezii, Phyllostegia § 17.12 Endangered and threatened eleeleensis, Cyanea kolekoleensis, renovans, Pittosporum napaliense, plants. Cyanea kuhihewa, Cyrtandra Platydesma rostrata, Pritchardia hardyi, * * * * * oenobarba, Cyrtandra paliku, Dubautia Psychotria grandiflora, Psychotria (h) * * * imbricata ssp. imbricata, Dubautia hobdyi, Schiedea attenuata, Stenogyne kalalauensis, Dubautia kenwoodii, kealiae, Tetraplasandra bisattenuata, Dubautia plantaginea ssp. magnifolia, and Tetraplasandra flynnii in
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Species Historic Critical habi- Common range Family Status When listed tat Special rules Scientific name name
FLOWERING PLANTS
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Astelia waialealae Painiu U.S.A. (HI) Asteliaceae E 765 17.99(a) NA
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Canavalia Awikiwiki U.S.A. (HI) Fabaceae E 765 17.99(a) NA napaliensis
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Chamaesyce Akoko U.S.A. (HI) Euphorbiaceae E 765 17.99(a) NA eleanoriae
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Chamaesyce Akoko U.S.A. (HI) Euphorbiaceae E 765 17.99(a) NA remyi var. kauaiensis
Chamaesyce Akoko U.S.A. (HI) Euphorbiaceae E 765 17.99(a) NA remyi var. remyi
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Charpentiera Papala U.S.A. (HI) Amaranathaceae E 765 17.99(a) NA densiflora
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Cyanea Haha U.S.A. (HI) Campanulaceae E 765 17.99(a) NA dolichopoda
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Cyanea Haha U.S.A. (HI) Campanulaceae E 765 17.99(a) NA eleeleensis
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Cyanea Haha U.S.A. (HI) Campanulaceae E 765 17.99(a) NA kolekoleensis
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Cyanea kuhihewa Haha U.S.A. (HI) Campanulaceae E 765 17.99(a) NA
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Cyrtandra Haiwale U.S.A. (HI) Gesneriaceae E 765 17.99(a) NA oenobarba
Cyrtandra paliku Haiwale U.S.A. (HI) Gesneriaceae E 765 17.99(a) NA
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Dubautia imbricata Naenae U.S.A. (HI) Asteraceae E 765 17.99(a) NA ssp. imbricata
Dubautia Naenae U.S.A. (HI) Asteraceae E 765 17.99(a) NA kalalauensis
Dubautia Naenae U.S.A. (HI) Asteraceae E 765 17.99(a) NA kenwoodii
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Dubautia Naenae U.S.A. (HI) Asteraceae E 765 17.99(a) NA plantaginea ssp. magnifolia
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Species Historic Critical habi- Common range Family Status When listed tat Special rules Scientific name name
Dubautia Naenae U.S.A. (HI) Asteraceae E 765 17.99(a) NA waialealae
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Geranium Nohoanu U.S.A. (HI) Geraniaceae E 765 17.99(a) NA kauaiense
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Keysseria erici No common U.S.A. (HI) Asteraceae E 765 17.99(a) NA name
Keysseria helenae No common U.S.A. (HI) Asteraceae E 765 17.99(a) NA name
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Labordia helleri Kamakahala U.S.A. (HI) Loganiaceae E 765 17.99(a) NA
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Labordia pumila Kamakahala U.S.A. (HI) Loganiaceae E 765 17.99(a) NA
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Lysimachia Lehua U.S.A. (HI) Myrsinaceae E 765 17.99(a) NA daphnoides makanoe
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Lysimachia iniki No common U.S.A. (HI) Myrsinaceae E 765 17.99(a) NA name
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Lysimachia No common U.S.A. (HI) Myrsinaceae E 765 17.99(a) NA pendens name
Lysimachia No common U.S.A. (HI) Myrsinaceae E 765 17.99(a) NA scopulensis name
Lysimachia No common U.S.A. (HI) Myrsinaceae E 765 17.99(a) NA venosa name
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Melicope degeneri Alani U.S.A. (HI) Rutaceae E 765 17.99(a) NA
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Melicope Alani U.S.A. (HI) Rutaceae E 765 17.99(a) NA paniculata
Melicope puberula Alani U.S.A. (HI) Rutaceae E 765 17.99(a) NA
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Myrsine knudsenii Kolea U.S.A. (HI) Myrsinaceae E 765 17.99(a) NA
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Myrsine mezii Kolea U.S.A. (HI) Myrsinaceae E 765 17.99(a) NA
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Phyllostegia No common U.S.A. (HI) Lamiaceae E 765 17.99(a) NA renovans name
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Species Historic Critical habi- Common range Family Status When listed tat Special rules Scientific name name
Pittosporum Hoawa U.S.A. (HI) Pittosporaceae E 765 17.99(a) NA napaliense
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Platydesma Pilo kea lau U.S.A. (HI) Rutaceae E 765 17.99(a) NA rostrata lii
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Pritchardia hardyi Loulu U.S.A. (HI) Arecaceae E 765 NA NA
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Psychotria Kopiko U.S.A. (HI) Rubiaceae E 765 17.99(a) NA grandiflora
Psychotria hobdyi Kopiko U.S.A. (HI) Rubiaceae E 765 17.99(a) NA
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Schiedea No common U.S.A. (HI) Caryophyllaceae E 765 17.99(a) NA attenuata name
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Stenogyne kealiae No common U.S.A. (HI) Lamiaceae E 765 17.99(a) NA name
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Tetraplasandra No common U.S.A. (HI) Araliaceae E 765 17.99(a) NA bisattenuata name
Tetraplasandra No common U.S.A. (HI) Araliaceae E 765 17.99(a) NA flynnii name
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FERNS AND ALLIES
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Diellia mannii No common U.S.A. (HI) Aspleniaceae E 765 17.99(a) NA name
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Doryopteris No common U.S.A. (HI) Pteridaceae E 765 17.99(a) NA angelica name
Dryopteris crinalis Palapalai U.S.A. (HI) Dryopteridaceae E 765 17.99(a) NA var. podosorus aumakua
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■ 4. Amend § 17.95 as follows: § 17.95 Critical habitat—fish and wildlife. (A) Elevation: 3,000 to 5,243 ft (914 to ■ a. In paragraph (b), by adding critical * * * * * 1,598 m). habitat for ‘‘Akekee (Loxops (b) Birds. (B) Annual precipitation: 50 to 75 caeruleirostris)’’ and ‘‘Akikiki inches (127 to 190 centimeters). (Oreomystis bairdi)’’ in the same Akekee (Loxops caeruleirostris) (C) Substrate: Weathered aa lava alphabetical order as these species occur flows, rocky mucks, thin silty loams, (1) Critical habitat units are depicted in the table at § 17.11(h); and deep volcanic ash soils. for Kauai County, Hawaii, on the maps ■ b. In paragraph (i), by adding critical below. (D) Canopy: Acacia, Metrosideros, habitat for ‘‘Hawaiian picture-wing fly Psychotria, Tetraplasandra, (Drosophila sharpi)’’ in the same (2) Primary constituent elements. Zanthoxylum. alphabetical order as this species occurs (i) In units 1, 2, and 3, the primary (E) Subcanopy: Cheirodendron, in the table at § 17.11(h), to read as set constituent elements of critical habitat Coprosma, Kadua, Ilex, Myoporum, forth below. for Akekee (Loxops caeruleirostris) are: Myrsine.
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(F) Understory: Bidens, Dryopteris, (D) Canopy: Acacia, Charpentiera, areas, existing on the effective date of Leptecophylla, Poa, Scaevola, Sophora. Cheirodendron, Metrosideros. this rule do not contain one or more of (G) Arthropod prey. (E) Subcanopy: Broussaisia, Cibotium, the primary constituent elements. (ii) In units 4, 5, and 6, the primary Eurya, Ilex, Myrsine. (4) Critical habitat maps. Maps were (F) Understory: Ferns, Carex, constituent elements of critical habitat created in GIS, with coordinates in UTM Coprosma, Leptecophylla, Oreobolus, for Akekee (Loxops caeruleirostris) are: Zone 4, units in meters using North (A) Elevation: 3,000 to 5,243 ft (914 to Rhynchospora, Vaccinium. American datum of 1983 (NAD 83). 1,598 m). (G) Arthropod prey. (B) Annual precipitation: Greater than (3) Manmade features and structures, (5) Index map of critical habitat units 75 inches (190 centimeters). such as buildings, roads, railroads, for Akekee (Loxops caeruleirostris) (C) Substrate: Well-developed soils, airports, runways, other paved areas, follows: montane bogs. lawns, and other urban landscaped BILLING CODE 4310–55–S
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BILLING CODE 4310–55–C
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(6) Unit 1–Montane Mesic, Kauai 2449848; 432808, 2450383; 432882, 2448827; 433407, 2449708; 433725, County, Hawaii. 2450351; 432904, 2450341; 432827, 2448994; 433401, 2449697; 433339, (i) Unit 1–Montane Mesic consists of 2447751; 432932, 2447668; 433014, 2449600; 433313, 2449484; 433339, 2,422.6 ac (980.4 ha) and includes land 2447717; 433109, 2447775; 433094, 2449381; 433368, 2449293; 433368, bounded by the following UTM Zone 4, 2447922; 432560, 2450267; 431875, 2449292; 433369, 2449255; 433389, NAD 83 coordinates (E, N): 430107, 2449780; 431322, 2449418; 431403, 2449256; 434254, 2447886; 433408, 2447429; 430242, 2447664; 430073, 2449436; 431727, 2449372; 431769, 2449708; 433527, 2447856; 434086, 2447126; 430793, 2448310; 430124, 2449447; 431705, 2449569; 431720, 2446095; 433862, 2446165; 433606, 2446907; 430393, 2447748; 430690, 2449620; 431805, 2449591; 431919, 2446193; 433449, 2446235; 433397, 2447765; 430671, 2447997; 430764, 2449578; 432498, 2449952; 431904, 2446440; 433257, 2446958; 433577, 2448188; 430886, 2448507; 430903, 2449665; 432486, 2449909; 432046, 2447086; 433706, 2447138; 434090, 2448664; 430985, 2448705; 431560, 2449781; 432052, 2449783; 432113, 2446098; 433562, 2447841; 432639, 2448675; 431414, 2448890; 430291, 2449740; 432217, 2449712; 432251, 2447624; 432918, 2447407; 432672, 2446570; 431058, 2446300; 431200, 2449685; 432259, 2449679; 432344, 2447598; 434620, 2446512; 432609, 2449070; 431362, 2449169; 431171, 2449744; 432419, 2449806; 431322, 2447647; 434318, 2448182; 432195, 2448699; 430854, 2445930; 432530, 2447587; 432136, 2447629; 432133, 2450196; 431391, 2449273; 431323, 2449372; 431905, 2449660; 434486, 2447126; 434073, 2448685; 434228, 2447631; 432081, 2447668; 433746, 2447013; 431211, 2446394; 431101, 2447766; 434500, 2446448; 432320, 2446447; 431112, 2446394; 431069, 2448620; 434292, 2448479; 434318, 2448298; 434279, 2447951; 434163, 2447497; 434103, 2446297; 434618, 2446331; 431007, 2446203; 430944, 2446459; 434582, 2446443; 434558, 2446145; 430902, 2445976; 430191, 2447783; 434086, 2447693; 434073, 2446439; 434514, 2446449; 434471, 2446386; 430826, 2445805; 430857, 2447500; 434623, 2446526; 434357, 2446422; 434457, 2446416; 434447, 2445727; 430824, 2445631; 430442, 2447229; 433545, 2449136; 434627, 2446420; 434392, 2446421; 434423, 2445640; 430323, 2445779; 430204, 2447088; 434686, 2447020; 434682, 2446441; 434416, 2446441; 434625, 2445809; 430191, 2445898; 429898, 2447017; 434657, 2446977; 434652, 2446100; 429871, 2446234; 430939, 2446933; 434612, 2446807; 434641, 2446467; 434201, 2446573; 434403, 2446061; 432796, 2450365; 432504, 2446663; 434631, 2446528; 434202, 2446435; 434628, 2446479; 434400, 2449961; 432579, 2450036; 432552, 2447345; 433399, 2449709; 431205, 2446429; 434434, 2446428; 434386, 2450080; 432551, 2450083; 432001, 2448983; 432073, 2447674; 433046, 2446429; 434533, 2446441. 2447726; 432534, 2450174; 431629, 2450280; 433196, 2450196; 433287, (ii)Map of Unit 1–Montane Mesic for 2448739; 432565, 2450262; 432531, 2450063; 433353, 2449880; 433467, Akekee (Loxops caeruleirostris) follows: 2450116; 432740, 2450249; 432441, 2449787; 433429, 2449741; 433880, BILLING CODE 4310–55–S
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(7) Unit 2–Montane Mesic, Kauai 2446280; 432559, 2446255; 432659, 2444792; 432135, 2444807; 432377, County, Hawaii. 2446240; 432948, 2446150; 433067, 2444722; 432548, 2444752; 431645, (i) Montane Mesic – Unit 2 consists of 2445928; 432758, 2445304; 432001, 2445326; 431736, 2445617. 375.6 ac (152.0 ha) and includes land 2445941; 431873, 2444849; 432912, (ii) Map of Unit 2–Montane Mesic for bounded by the following UTM Zone 4, 2445580; 432674, 2444970; 431626, Akekee (Loxops caeruleirostris) follows: NAD 83 coordinates (E, N): 431975, 2445435; 431730, 2445114; 431950,
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(8) Unit 3–Montane Mesic, Kauai 2440588; 437817, 2440071; 438028, 2440180; 437335, 2440329; 438159, County, Hawaii. 2440577; 437922, 2440355; 437336, 2440914; 438249, 2440857; 438253, (i) Unit 3–Montane Mesic consists of 2440335; 437912, 2440201; 437827, 2440854; 438243, 2440830; 438287, 138.5 ac (56.0 ha) and includes land 2440132; 437785, 2440013; 437687, 2440738; 437602, 2440771; 438227, bounded by the following UTM Zone 4, 2439960; 437636, 2439819; 437870, 2440730; 437586, 2439743. NAD 83 coordinates (E, N): 438012, 2440140; 437545, 2439761; 438149, (ii) Map of Unit 3–Montane Mesic for 2440389; 438014, 2440437; 438023, 2440714; 437529, 2439721; 437987, 2440484; 438111, 2440652; 438112, 2441027; 437450, 2440047; 437335, Akekee (Loxops caeruleirostris) follows:
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BILLING CODE 4310–55–C
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00098 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES ER13AP10.017 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations 19057
(9) Unit 4–Montane Wet, Kauai 443557, 2444532; 443553, 2444537; 441834, 2446230; 441848, 2446265; County, Hawaii. 443610, 2444483; 443516, 2444546; 441855, 2446295; 441943, 2446256; (i) Montane Wet–Unit 1 consists of 443617, 2444477; 443483, 2444551; 442202, 2445986; 442428, 2445851; 13,055.0 ac (5,283.2 ha) and includes 443478, 2444555; 443464, 2444570; 442381, 2445882; 442372, 2445885; land bounded by the following UTM 443459, 2444579; 443452, 2444591; 442317, 2445917; 442301, 2445924; Zone 4, NAD 83 coordinates (E,N): 443447, 2444608; 443534, 2444543; 442039, 2446165; 442261, 2445949; 448638, 2440764; 448601, 2440679; 443722, 2444464; 444016, 2444444; 442858, 2445342; 442175, 2445995; 448606, 2440704; 448612, 2440722; 443984, 2444419; 443985, 2444416; 442100, 2446007; 442082, 2446029; 448615, 2440731; 448619, 2440740; 443769, 2444440; 443760, 2444446; 442072, 2446052; 442067, 2446082; 448630, 2440759; 448650, 2440769; 443598, 2444493; 443732, 2444458; 442073, 2446121; 442273, 2445945; 448600, 2440668; 448622, 2440749; 446375, 2441172; 443703, 2444469; 443240, 2444927; 442821, 2445353; 448599, 2440647; 448601, 2440652; 443685, 2444463; 443677, 2444459; 443294, 2444870; 443290, 2444876; 448678, 2440741; 448777, 2440842; 443666, 2444456; 443647, 2444460; 443281, 2444890; 443271, 2444898; 448663, 2440773; 449006, 2441012; 443628, 2444469; 443740, 2444454; 443307, 2444833; 443252, 2444914; 448764, 2440857; 449068, 2441051; 441656, 2441573; 442568, 2441274; 443309, 2444829; 443234, 2444932; 449121, 2441114; 449121, 2441114; 440114, 2440528; 440464, 2440832; 443215, 2444938; 443196, 2444944; 448887, 2440934; 448811, 2440896; 440528, 2440844; 440586, 2440905; 443193, 2444946; 443177, 2444962; 448954, 2441097; 448943, 2441063; 440110, 2440524; 441650, 2441573; 443175, 2444965; 443260, 2444907; 448943, 2441053; 448943, 2441044; 440014, 2440441; 441659, 2441579; 443352, 2444721; 438757, 2442331; 448941, 2441024; 448940, 2441006; 441727, 2441586; 441774, 2441575; 443435, 2444664; 443423, 2444686; 448918, 2440982; 448877, 2440939; 441900, 2441576; 441968, 2441515; 443403, 2444695; 443385, 2444699; 448861, 2440927; 448735, 2440829; 446610, 2441349; 441637, 2441552; 443301, 2444851; 443366, 2444706; 448837, 2440912; 448678, 2440780; 439096, 2441847; 438866, 2442347; 443156, 2445003; 443346, 2444728; 448802, 2440889; 448788, 2440878; 438934, 2442351; 438960, 2442270; 443341, 2444740; 443333, 2444758; 449115, 2442038; 448745, 2440841; 438967, 2442246; 438976, 2442220; 443327, 2444778; 443320, 2444796; 449111, 2441196; 448727, 2440820; 440113, 2440527; 439088, 2441871; 443313, 2444815; 443373, 2444702; 448720, 2440813; 448711, 2440806; 442723, 2441295; 439491, 2440617; 442952, 2445303; 443029, 2445263; 448691, 2440790; 448841, 2440914; 439551, 2440431; 439556, 2440414; 443009, 2445266; 443006, 2445268; 447374, 2443275; 449244, 2441819; 439832, 2440430; 439931, 2440426; 442990, 2445276; 442981, 2445284; 447623, 2443445; 447616, 2443588; 440002, 2440430; 439037, 2442031; 443163, 2444984; 442956, 2445301; 447603, 2443646; 447556, 2443686; 445551, 2441162; 442287, 2441225; 443068, 2445227; 442934, 2445314; 447325, 2443651; 447295, 2443639; 445235, 2441328; 445344, 2441376; 442915, 2445323; 442898, 2445330; 447247, 2443586; 448634, 2443800; 445380, 2441414; 445392, 2441392; 442877, 2445336; 442862, 2445341; 447287, 2443339; 448657, 2443629; 444560, 2441032; 445510, 2441194; 443443, 2444647; 442972, 2445292; 447481, 2443262; 447636, 2443160; 444480, 2440997; 445886, 2441308; 443122, 2445132; 442842, 2445347; 447645, 2443143; 447645, 2443146; 446122, 2441415; 446214, 2441291; 443153, 2445020; 443153, 2445040; 447894, 2443371; 447865, 2443358; 448944, 2441075; 446300, 2441227; 443152, 2445059; 443150, 2445078; 447712, 2443351; 447631, 2443389; 446357, 2441185; 445395, 2441389; 443144, 2445096; 443047, 2445260; 448948, 2441084; 447249, 2443451; 443889, 2441172; 442843, 2441314; 443135, 2445115; 443065, 2445247; 448917, 2442504; 449106, 2441435; 442924, 2441340; 442982, 2441350; 443103, 2445152; 443083, 2445171; 449173, 2441529; 449201, 2441638; 442977, 2441356; 443016, 2441342; 443066, 2445190; 443066, 2445209; 449249, 2441697; 449275, 2441773; 445124, 2441205; 443707, 2441132; 443067, 2445215; 443158, 2444995; 449148, 2441893; 449090, 2442135; 443440, 2444655; 444062, 2441230; 443140, 2445105; 440025, 2445056; 449064, 2442221; 448614, 2443950; 444083, 2441215; 444109, 2441224; 439668, 2444981; 440214, 2445151; 448983, 2442384; 449078, 2441297; 444113, 2441221; 444124, 2441223; 440216, 2445150; 440347, 2445106; 448880, 2442563; 448861, 2442593; 444455, 2440990; 443023, 2441344; 440289, 2445097; 440078, 2445204; 448805, 2442677; 448765, 2442787; 442711, 2445664; 442430, 2445827; 440124, 2445056; 439994, 2445245; 448696, 2442955; 448653, 2443075; 442668, 2445560; 442666, 2445576; 439910, 2445087; 439796, 2445123; 448651, 2443187; 448674, 2443301; 442668, 2445590; 442674, 2445604; 439719, 2445133; 439696, 2445110; 448669, 2443477; 449024, 2442290; 442672, 2445510; 442713, 2445661; 439681, 2445072; 439364, 2444192; 444824, 2443350; 444161, 2444181; 442668, 2445494; 442501, 2445803; 440216, 2445076; 439480, 2445095; 445808, 2442898; 445681, 2442977; 442492, 2445803; 442467, 2445799; 438927, 2444790; 438982, 2444746; 445559, 2443010; 445437, 2443077; 442448, 2445805; 442444, 2445807; 439037, 2444786; 439157, 2444829; 446100, 2442628; 445045, 2443240; 443444, 2444627; 442710, 2445647; 439238, 2444846; 440165, 2445166; 446256, 2442602; 444659, 2443447; 442709, 2445399; 442804, 2445357; 439434, 2444999; 439643, 2444902; 444532, 2443516; 444456, 2443572; 442798, 2445359; 442785, 2445364; 439484, 2445120; 439501, 2445220; 444423, 2443638; 444334, 2443811; 442765, 2445370; 442747, 2445377; 439598, 2445317; 439699, 2445360; 446499, 2441271; 445254, 2443156; 442673, 2445515; 442727, 2445386; 439794, 2445352; 439883, 2445309; 446686, 2441764; 441856, 2446328; 442430, 2445830; 442694, 2445414; 439360, 2444907; 439945, 2444540; 446673, 2441408; 446651, 2441424; 442689, 2445419; 442682, 2445433; 439673, 2445011; 439890, 2444912; 446641, 2441436; 446587, 2441501; 442675, 2445453; 442671, 2445471; 439948, 2444922; 439994, 2444883; 445966, 2442725; 446640, 2441627; 442667, 2445490; 442743, 2445378; 440052, 2444784; 439859, 2444782; 444075, 2444349; 446694, 2442007; 441897, 2446273; 442435, 2445813; 439996, 2444642; 439859, 2444723; 446591, 2442195; 446650, 2442430; 442019, 2446165; 442005, 2446171; 439876, 2444423; 439825, 2444344; 446675, 2442432; 446482, 2442513; 441982, 2446194; 441963, 2446219; 439759, 2444342; 439685, 2444334; 446373, 2442574; 446587, 2441543; 442059, 2446159; 441929, 2446268; 439583, 2444266; 438838, 2442340; 443497, 2444548; 444237, 2444013; 442071, 2446146; 441879, 2446263; 440032, 2444731; 439254, 2444472; 443579, 2444514; 443571, 2444521; 441852, 2446219; 441838, 2446221; 439571, 2444823; 439485, 2444800;
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00099 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19058 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
439386, 2444762; 439258, 2444658; 438433, 2442319; 438436, 2442321; 448586, 2443203; 448512, 2443792; 439172, 2444564; 439864, 2444845; 438453, 2442321; 438453, 2442321; 448512, 2443783; 448513, 2443779; 439156, 2444527; 438580, 2444854; 438460, 2442320; 438373, 2442277; 448513, 2443769; 448473, 2443878; 439413, 2444371; 439522, 2444418; 437363, 2443282; 437751, 2441981; 448504, 2443752; 448470, 2443888; 439617, 2444459; 439747, 2444522; 437981, 2443476; 437808, 2443397; 448504, 2443735; 448507, 2443727; 439800, 2444594; 439843, 2444655; 437928, 2443310; 437950, 2443233; 448522, 2443706; 448538, 2443682; 439145, 2444538; 435698, 2452376; 438143, 2443587; 437364, 2443298; 448546, 2443665; 448552, 2443643; 438807, 2444845; 436003, 2452334; 438183, 2443628; 437277, 2443228; 448509, 2443760; 447932, 2443750; 435955, 2452326; 435902, 2452378; 437144, 2443208; 437065, 2443211; 447925, 2444320; 447843, 2444325; 435838, 2452443; 436579, 2452559; 437060, 2443212; 436974, 2443182; 447864, 2444277; 447942, 2444178; 435719, 2452378; 436804, 2452559; 436997, 2443061; 437657, 2443231; 448003, 2444015; 448500, 2443823; 435477, 2452358; 435478, 2452345; 438835, 2443883; 439282, 2444110; 447967, 2443867; 448549, 2443613; 435479, 2452304; 435517, 2452192; 439268, 2444068; 439181, 2444032; 447904, 2443646; 447921, 2443582; 435519, 2452190; 435540, 2452168; 439094, 2444009; 439048, 2443913; 447949, 2443460; 447939, 2443412; 435810, 2452427; 438006, 2453313; 438208, 2443477; 438964, 2443837; 448458, 2443882; 448470, 2443889; 438476, 2452702; 438465, 2452788; 437226, 2442709; 438723, 2443923; 448008, 2443903; 448590, 2443306; 438430, 2452817; 438386, 2452854; 438608, 2443916; 438453, 2443825; 448578, 2443441; 448572, 2443417; 438269, 2452930; 436189, 2452365; 438438, 2443814; 438318, 2443723; 448576, 2443405; 448584, 2443388; 438110, 2453148; 435895, 2451700; 438201, 2443629; 439043, 2443859; 448590, 2443369; 448552, 2443630; 437935, 2453510; 437933, 2453512; 437697, 2441878; 437601, 2441867; 448593, 2443325; 448591, 2443484; 437797, 2453318; 437592, 2453026; 437602, 2441867; 437617, 2441866; 448591, 2443291; 448592, 2443277; 437202, 2452948; 437201, 2452932; 437635, 2441866; 437647, 2441866; 448592, 2443261; 448592, 2443254; 438116, 2453088; 438263, 2444805; 437052, 2442940; 437689, 2441877; 448591, 2443241; 448673, 2442365; 436811, 2449026; 437237, 2447714; 437522, 2441879; 437705, 2441878; 448595, 2443352; 448553, 2443539; 437230, 2447713; 437248, 2447657; 437711, 2441887; 437717, 2441899; 448587, 2443214; 448544, 2443601; 437232, 2447645; 435631, 2452072; 437736, 2441928; 437740, 2441938; 448533, 2443587; 448527, 2443576; 438179, 2444732; 436566, 2449559; 438821, 2442339; 437674, 2441875; 448523, 2443570; 448518, 2443559; 438343, 2444896; 438406, 2444952; 437294, 2442356; 437747, 2441961; 448585, 2443461; 448528, 2443546; 438475, 2444955; 438523, 2444886; 437088, 2442647; 437103, 2442643; 448588, 2443466; 448560, 2443535; 438536, 2444858; 439298, 2444154; 437156, 2442615; 437159, 2442579; 448569, 2443527; 448577, 2443516; 438168, 2444734; 436235, 2450550; 437120, 2442503; 437566, 2441876; 448582, 2443508; 448589, 2443493; 438677, 2444833; 435961, 2451591; 437174, 2442422; 437532, 2441880; 448551, 2443621; 448518, 2443552; 436027, 2451466; 436103, 2451262; 437425, 2442191; 437307, 2442101; 449003, 2441449; 448936, 2441403; 436162, 2451016; 436212, 2450766; 437476, 2442051; 437493, 2441868; 449064, 2441492; 449060, 2441481; 436739, 2449180; 436234, 2450558; 437495, 2441869; 437182, 2442830; 449053, 2441472; 449049, 2441471; 436706, 2449252; 436250, 2450410; 437105, 2442445; 448431, 2442766; 449066, 2441511; 449032, 2441461; 436234, 2450237; 436386, 2449952; 448447, 2442675; 448469, 2442871; 449061, 2441528; 448971, 2441443; 436472, 2449769; 436566, 2449560; 448462, 2442858; 448442, 2442821; 448964, 2441441; 448952, 2441427; 435779, 2451881; 436230, 2450590; 448437, 2442805; 448481, 2442894; 448948, 2441420; 448945, 2441411; 438030, 2442243; 438130, 2442234; 448432, 2442775; 448486, 2442910; 448665, 2442379; 449040, 2441466; 437996, 2442188; 437998, 2442202; 448428, 2442750; 448428, 2442738; 449012, 2441616; 448972, 2441689; 437998, 2442205; 437999, 2442211; 448432, 2442727; 448437, 2442711; 446228, 2441279; 448995, 2441668; 437973, 2442147; 438012, 2442229; 448443, 2442699; 448671, 2442369; 449000, 2441660; 449004, 2441650; 437954, 2442136; 438049, 2442246; 448435, 2442791; 448579, 2443112; 449065, 2441502; 449009, 2441625; 438065, 2442246; 438088, 2442240; 448582, 2443190; 448582, 2443172; 448930, 2441400; 449017, 2441611; 438095, 2442238; 438098, 2442237; 448582, 2443162; 448583, 2443151; 449030, 2441595; 449037, 2441588; 439456, 2444205; 438000, 2442216; 448585, 2443140; 448477, 2442887; 449043, 2441578; 449046, 2441569; 437826, 2442106; 437754, 2441991; 448585, 2443122; 448447, 2442663; 449050, 2441561; 449006, 2441639; 437758, 2441998; 437766, 2442017; 448562, 2443086; 448545, 2443051; 448967, 2441159; 448940, 2441404; 437777, 2442052; 437791, 2442074; 448529, 2443019; 448507, 2442976; 448926, 2441212; 448930, 2441194; 437984, 2442167; 437806, 2442092; 448498, 2442952; 448490, 2442930; 448933, 2441184; 448941, 2441177; 438157, 2442234; 437839, 2442110; 448586, 2443129; 448642, 2442440; 448940, 2441238; 448961, 2441163; 437873, 2442121; 437887, 2442121; 448447, 2442688; 448602, 2442477; 448944, 2441250; 448972, 2441150; 437912, 2442123; 437926, 2442125; 448615, 2442472; 448623, 2442466; 448973, 2441143; 448972, 2441136; 437939, 2442128; 437799, 2442084; 448634, 2442459; 448566, 2442503; 448971, 2441119; 448969, 2441116; 438656, 2442321; 438114, 2442232; 448640, 2442451; 448550, 2442513; 448964, 2441109; 448949, 2441170; 438535, 2442314; 438536, 2442314; 448642, 2442430; 448642, 2442419; 448928, 2441313; 448922, 2441392; 438561, 2442316; 438577, 2442315; 448643, 2442410; 448648, 2442399; 448918, 2441381; 448916, 2441369; 438517, 2442310; 438626, 2442315; 448657, 2442387; 447996, 2444312; 448917, 2441357; 448919, 2441341; 438496, 2442310; 438668, 2442322; 448637, 2442455; 448464, 2442531; 448934, 2441230; 448925, 2441322; 438679, 2442324; 438694, 2442327; 448443, 2442636; 448443, 2442627; 448933, 2441715; 448935, 2441302; 438704, 2442326; 438721, 2442329; 448440, 2442604; 448438, 2442565; 448944, 2441291; 448948, 2441281; 446348, 2441177; 438609, 2442314; 448441, 2442549; 448587, 2442486; 448948, 2441273; 448948, 2441264; 438392, 2442294; 438219, 2442244; 448455, 2442534; 448589, 2443224; 448946, 2441259; 448920, 2441333; 438238, 2442248; 438254, 2442248; 448474, 2442530; 448488, 2442531; 448677, 2442140; 441868, 2446401; 438305, 2442256; 438355, 2442265; 448505, 2442534; 448515, 2442533; 448673, 2442209; 448671, 2442202; 438523, 2442310; 438376, 2442278; 448530, 2442527; 448536, 2442523; 448674, 2442187; 448680, 2442169; 437745, 2441950; 438418, 2442311; 448449, 2442536; 448502, 2443743; 448684, 2442226; 448682, 2442148;
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00100 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations 19059
448692, 2442233; 448675, 2442123; 440136, 2448537; 440120, 2448633; 438422, 2451414; 438481, 2451188; 448677, 2442115; 448683, 2442101; 440125, 2448690; 439875, 2448932; 448609, 2443974; 438669, 2452384; 448694, 2442089; 448710, 2442077; 440112, 2448732; 440451, 2447620; 438605, 2452379; 438540, 2452374; 448718, 2442069; 448684, 2442157; 440073, 2448762; 440036, 2448815; 438510, 2452340; 438449, 2452330; 448722, 2442303; 448677, 2442356; 440000, 2448878; 439982, 2448899; 438761, 2452013; 438490, 2452605; 448682, 2442350; 448697, 2442342; 439961, 2448915; 439941, 2448924; 438816, 2452396; 448591, 2444072; 448711, 2442341; 448721, 2442331; 440121, 2448718; 441363, 2447030; 448566, 2444172; 448548, 2444233; 448678, 2442221; 448723, 2442309; 440383, 2447794; 441405, 2446869; 448510, 2444279; 448464, 2444284; 448736, 2442055; 448718, 2442295; 441402, 2446899; 441403, 2446972; 448299, 2444289; 438431, 2452414; 448712, 2442283; 448707, 2442267; 441399, 2446995; 441455, 2446804; 439138, 2452428; 438670, 2451754; 448706, 2442257; 448705, 2442250; 441373, 2447026; 441476, 2446797; 438936, 2452213; 438977, 2452232; 448699, 2442238; 448724, 2442320; 441317, 2447043; 441283, 2447083; 438979, 2452233; 439031, 2452285; 448915, 2441796; 448850, 2441844; 441268, 2447104; 441240, 2447171; 439037, 2452297; 438716, 2452393; 448877, 2441825; 448884, 2441820; 441231, 2447186; 441219, 2447195; 439083, 2452342; 438779, 2452391; 448890, 2441818; 448892, 2441817; 441398, 2446997; 441674, 2446682; 448723, 2442061; 448910, 2441807; 448141, 2444294; 448986, 2441677; 439171, 2452514; 439201, 2452565; 448820, 2441871; 448913, 2441774; 441864, 2446424; 441847, 2446451; 439114, 2452513; 438954, 2452430; 448914, 2441760; 448913, 2441753; 441836, 2446475; 441434, 2446820; 438851, 2452395; 438833, 2452090; 448915, 2441738; 448925, 2441722; 441829, 2446505; 441148, 2447188; 439061, 2452327; 439044, 2449631; 448957, 2441700; 448900, 2441814; 441648, 2446705; 441620, 2446723; 438944, 2449813; 439167, 2449414; 448787, 2441967; 448939, 2441710; 441584, 2446741; 441549, 2446752; 439146, 2449435; 439114, 2449463; 448746, 2442051; 448755, 2442041; 441532, 2446763; 441521, 2446777; 439102, 2449480; 439220, 2449318; 448764, 2442029; 448768, 2442019; 441829, 2446501; 440674, 2447485; 439065, 2449586; 439230, 2449287; 448773, 2442013; 448840, 2441852; 440710, 2447368; 440699, 2447389; 439037, 2449642; 439025, 2449671; 448781, 2441990; 448831, 2441859; 440693, 2447407; 440695, 2447430; 439016, 2449687; 438999, 2449702; 448789, 2441938; 448803, 2441914; 440703, 2447452; 441201, 2447195; 438974, 2449738; 438965, 2449767; 448813, 2441900; 448814, 2441894; 440693, 2447475; 440800, 2447339; 439076, 2449548; 439382, 2449107; 448817, 2441884; 448728, 2442058; 440599, 2447501; 440579, 2447511; 439508, 2448984; 439451, 2449000; 448777, 2442002; 440375, 2448361; 440540, 2447539; 440487, 2447571; 439437, 2449023; 438680, 2451783; 440198, 2448467; 440421, 2448239; 440468, 2447593; 440124, 2448663; 439433, 2449078; 439200, 2449362; 440415, 2448290; 440416, 2448314; 440703, 2447461; 440941, 2447230; 439399, 2449097; 439421, 2449088; 440411, 2448336; 440401, 2448191; 440413, 2447711; 441133, 2447183; 439361, 2449126; 439330, 2449145; 440391, 2448353; 440384, 2448138; 441113, 2447170; 441095, 2447154; 439307, 2449169; 439277, 2449220; 440350, 2448395; 440331, 2448411; 441083, 2447147; 441058, 2447153; 439260, 2449242; 439244, 2449261; 440307, 2448418; 440254, 2448428; 440722, 2447354; 440969, 2447210; 438425, 2451047; 438554, 2450559; 440237, 2448434; 439526, 2448944; 440740, 2447346; 440888, 2447250; 438737, 2450311; 438736, 2450325; 440402, 2448352; 440409, 2447991; 440873, 2447265; 440865, 2447286; 438731, 2450342; 438715, 2450373; 440377, 2447819; 440378, 2447845; 440858, 2447311; 440842, 2447328; 438690, 2450392; 438621, 2450415; 440384, 2447871; 440395, 2447896; 441172, 2447190; 441039, 2447168; 438732, 2450286; 438578, 2450438; 440436, 2447941; 440413, 2448216; 438599, 2451708; 438434, 2451069; 438501, 2450796; 438488, 2450686; 440426, 2447974; 440190, 2448485; 438440, 2451600; 438425, 2451652; 438472, 2450910; 438435, 2450985; 440343, 2448005; 440329, 2448016; 438429, 2451670; 438442, 2451682; 438427, 2450964; 438919, 2449853; 440325, 2448033; 440331, 2448061; 438419, 2451509; 438529, 2451692; 439437, 2449066; 438581, 2450423; 440341, 2448084; 440374, 2448123; 438410, 2451464; 438657, 2451738; 438816, 2450028; 438717, 2450241; 440435, 2447959; 439678, 2448950; 439516, 2448971; 438675, 2451766; 438894, 2449879; 438884, 2449918; 440218, 2448446; 439853, 2448941; 440125, 2448578; 438680, 2451858; 438904, 2449863; 438831, 2450010; 439830, 2448945; 439788, 2448929; 438715, 2451908; 438484, 2451690; 438850, 2449982; 438791, 2450036; 439761, 2448926; 439900, 2448928; 438467, 2451228; 438455, 2451089; 438765, 2450051; 438744, 2450081; 439697, 2448941; 439922, 2448928; 438463, 2451098; 438475, 2451113; 439656, 2448949; 439633, 2448940; 438484, 2451141; 438486, 2451163; 438730, 2450109; 438717, 2450158; 439611, 2448928; 439578, 2448906; 438435, 2451571; 438472, 2451209; 438716, 2450162; 438713, 2450206. 439553, 2448909; 439539, 2448922; 438888, 2452163; 438472, 2451261; (ii) Map of Unit 4–Montane Wet for 439733, 2448930; 440089, 2448747; 438481, 2451287; 438485, 2451346; Akekee (Loxops caeruleirostris) follows: 440179, 2448496; 440157, 2448511; 438478, 2451359; 438454, 2451380; BILLING CODE 4310–55–S
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00101 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19060 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00102 Fmt 4701 Sfmt 4725 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES ER13AP10.018 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations 19061
(10) Unit 5–Montane Wet, Kauai 2449278; 434833, 2449278; 434833, 2449863; 434137, 2449869; 434124, County, Hawaii. 2449280; 434833, 2449281; 434872, 2449948; 434074, 2449972; 433461, (i) Unit 5–Montane Wet consists of 2449294; 434881, 2449297; 434884, 2449623; 433339, 2449381; 435234, 789.9 ac (319.7 ha) and includes land 2449298; 435010, 2449343; 434899, 2449384; 433589, 2449323; 433725, bounded by the following UTM Zone 4, 2449305; 433903, 2449882; 435011, 2448994; 433545, 2449136; 433389, NAD83 coordinates (E, N): 433436, 2449352; 435010, 2449343; 435005, 2449256; 433567, 2449260; 433588, 2449707; 433445, 2449707; 433444, 2449310; 434948, 2449300; 434908, 2449244; 433880, 2448827; 433612, 2449707; 433443, 2449707; 433458, 2449290; 434908, 2449290; 434890, 2449262; 433525, 2449415; 433567, 2449707; 433436, 2449707; 433426, 2449251; 434872, 2449246; 434848, 2449398; 433546, 2449412; 434627, 2449707; 433408, 2449708; 433429, 2449239; 434844, 2449248; 434034, 2447088; 433448, 2449426; 435236, 2449741; 433493, 2449765; 433633, 2449950; 434026, 2449951; 433969, 2449347; 433368, 2449293; 433599, 2449724; 433742, 2449724; 433467, 2449958; 434898, 2449304; 435183, 2449787; 433460, 2449707; 433468, 2449401; 434713, 2447038; 434738, 2449252; 434202, 2447345; 433367, 2449706; 433484, 2449694; 433414, 2447045; 434738, 2447030; 434795, 2449352; 434073, 2448685; 434357, 2449628; 433461, 2449623; 433457, 2447069; 434994, 2447085; 435093, 2447229; 434073, 2447500; 434086, 2449622; 433339, 2449600; 433440, 2447245; 435290, 2447449; 435295, 2447693; 434163, 2447783; 434254, 2449604; 433437, 2449592; 433426, 2447440; 435360, 2447538; 435282, 2447886; 434318, 2448182; 434318, 2449556; 433419, 2449599; 433831, 2448685; 435266, 2448909; 435236, 2448298; 434292, 2448479; 434279, 2449767; 434991, 2449344; 433401, 2449351; 434686, 2447020; 435232, 2447951; 434486, 2447126; 434228, 2449697; 433480, 2449629; 434938, 2449399; 435272, 2448835; 435080, 2448620. 2449321; 433313, 2449484; 433455, 2449407; 434920, 2449394; 434752, (ii) Map of Unit 5–Montane Wet for 2449620; 434842, 2449253; 434839, 2449405; 434498, 2449522; 434338, Akekee (Loxops caeruleirostris) follows: 2449258; 434834, 2449277; 434833, 2449660; 434208, 2449767; 434141,
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00103 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19062 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00104 Fmt 4701 Sfmt 4725 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES ER13AP10.019 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations 19063
(11) Unit 6–Montane Wet, Kauai 2447795; 447961, 2448628; 448037, 2449443; 448964, 2449425; 448952, County, Hawaii. 2448780; 448088, 2448897; 448122, 2449316; 448954, 2449143; 448881, (i) Unit 6–Montane Wet consists of 2449037; 448119, 2449134; 448056, 2447609; 448987, 2448959; 448980, 413.5 ac (167.3 ha) and includes land 2449368; 448099, 2449454; 448242, 2446980; 448979, 2446983; 448577, bounded by the following UTM Zone 4, 2449457; 448328, 2449449; 448440, 2449143; 448980, 2446982; 448981, NAD83 coordinates (E, N): 448516, 2449296; 448382, 2449406; 448887, 2446981; 449105, 2447827; 449087, 2447525; 447976, 2448470; 448042, 2447191; 448091, 2449266; 448610, 2447916; 449044, 2448132; 449032, 2448338; 448133, 2448200; 448235, 2449255; 448931, 2447092; 448511, 2448326; 449045, 2448506; 449040, 2448042; 448834, 2447273; 448288, 2449199; 448623, 2449141; 448641, 2448659; 449012, 2448822. 2447915; 448412, 2447653; 448669, 2449184; 448593, 2449298; 448613, 2447406; 447943, 2448562; 448763, 2449357; 448702, 2449395; 448812, (ii) Map of Unit 6–Montane Wet for 2447342; 448059, 2449434; 448321, 2449420; 448906, 2449440; 448959, Akekee (Loxops caeruleirostris) follows:
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00105 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19064 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00106 Fmt 4701 Sfmt 4725 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES ER13AP10.020 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations 19065
Akikiki (Oreomystis bairdi) (E) Subcanopy: Cheirodendron, (F) Understory: Ferns, Carex, (1) Critical habitat units are depicted Coprosma, Kadua, Ilex, Myoporum, Coprosma, Leptecophylla, Oreobolus, for Kauai County, Hawaii, on the map Myrsine. Rhynchospora, Vaccinium. (F) Understory: Bidens, Dryopteris, below. (G) Arthropod prey. Leptecophylla, Poa, Scaevola, Sophora. (2) Primary constituent elements. (G) Arthropod prey. (3) Manmade features and structures, (i) In units 1, 2, and 3, the primary (ii) In units 4, 5, and 6, the primary such as buildings, roads, railroads, constituent elements of critical habitat constituent elements of critical habitat airports, runways, other paved areas, for Akikiki (Oreomystis bairdi) are: for Akikiki (Oreomystis bairdi) are: lawns, and other urban landscaped (A) Elevation: 3,000 to 5,243 ft (914 to (A) Elevation: 3,000 to 5,243 ft (914 to areas, existing on the effective date of 1,598 m). 1,598 m). this rule do not contain one or more of (B) Annual precipitation: 50 to 75 (B) Annual precipitation: Greater than the primary constituent elements. inches (127 to 190 centimeters). 75 inches (190 centimeters). (4) Critical habitat maps. Maps were (C) Substrate: Weathered aa lava (C) Substrate: Well-developed soils, created in GIS, with coordinates in UTM flows, rocky mucks, thin silty loams, montane bogs. deep volcanic ash soils. (D) Canopy: Acacia, Charpentiera, Zone 4, units in meters using North (D) Canopy: Acacia, Metrosideros, Cheirodendron, Metrosideros. American datum of 1983 (NAD 83). Psychotria, Tetraplasandra, (E) Subcanopy: Broussaisia, Cibotium, (5) Index map of critical habitat units Zanthoxylum. Eurya, Ilex, Myrsine. for Akikiki (Oreomystis bairdi) follows:
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00107 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19066 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
BILLING CODE 4310–55–C
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00108 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES ER13AP10.021 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations 19067
(6) Unit 1–Montane Mesic, Kauai 2449848; 432808, 2450383; 432882, 2448827; 433407, 2449708; 433725, County, Hawaii. 2450351; 432904, 2450341; 432827, 2448994; 433401, 2449697; 433339, (i) Unit 1–Montane Mesic consists of 2447751; 432932, 2447668; 433014, 2449600; 433313, 2449484; 433339, 2,422.6 ac (980.4 ha) and includes land 2447717; 433109, 2447775; 433094, 2449381; 433368, 2449293; 433368, bounded by the following UTM Zone 4, 2447922; 432560, 2450267; 431875, 2449292; 433369, 2449255; 433389, NAD 83 coordinates (E,N): 430107, 2449780; 431322, 2449418; 431403, 2449256; 434254, 2447886; 433408, 2447429; 430242, 2447664; 430073, 2449436; 431727, 2449372; 431769, 2449708; 433527, 2447856; 434086, 2447126; 430793, 2448310; 430124, 2449447; 431705, 2449569; 431720, 2446095; 433862, 2446165; 433606, 2446907; 430393, 2447748; 430690, 2449620; 431805, 2449591; 431919, 2446193; 433449, 2446235; 433397, 2447765; 430671, 2447997; 430764, 2449578; 432498, 2449952; 431904, 2446440; 433257, 2446958; 433577, 2448188; 430886, 2448507; 430903, 2449665; 432486, 2449909; 432046, 2447086; 433706, 2447138; 434090, 2448664; 430985, 2448705; 431560, 2449781; 432052, 2449783; 432113, 2446098; 433562, 2447841; 432639, 2448675; 431414, 2448890; 430291, 2449740; 432217, 2449712; 432251, 2447624; 432918, 2447407; 432672, 2446570; 431058, 2446300; 431200, 2449685; 432259, 2449679; 432344, 2447598; 434620, 2446512; 432609, 2449070; 431362, 2449169; 431171, 2449744; 432419, 2449806; 431322, 2447647; 434318, 2448182; 432195, 2448699; 430854, 2445930; 432530, 2447587; 432136, 2447629; 432133, 2450196; 431391, 2449273; 431323, 2449372; 431905, 2449660; 434486, 2447126; 434073, 2448685; 434228, 2447631; 432081, 2447668; 433746, 2447013; 431211, 2446394; 431101, 2447766; 434500, 2446448; 432320, 2446447; 431112, 2446394; 431069, 2448620; 434292, 2448479; 434318, 2448298; 434279, 2447951; 434163, 2447497; 434103, 2446297; 434618, 2446331; 431007, 2446203; 430944, 2446459; 434582, 2446443; 434558, 2446145; 430902, 2445976; 430191, 2447783; 434086, 2447693; 434073, 2446439; 434514, 2446449; 434471, 2446386; 430826, 2445805; 430857, 2447500; 434623, 2446526; 434357, 2446422; 434457, 2446416; 434447, 2445727; 430824, 2445631; 430442, 2447229; 433545, 2449136; 434627, 2446420; 434392, 2446421; 434423, 2445640; 430323, 2445779; 430204, 2447088; 434686, 2447020; 434682, 2446441; 434416, 2446441; 434625, 2445809; 430191, 2445898; 429898, 2447017; 434657, 2446977; 434652, 2446100; 429871, 2446234; 430939, 2446933; 434612, 2446807; 434641, 2446467; 434201, 2446573; 434403, 2446061; 432796, 2450365; 432504, 2446663; 434631, 2446528; 434202, 2446435; 434628, 2446479; 434400, 2449961; 432579, 2450036; 432552, 2447345; 433399, 2449709; 431205, 2446429; 434434, 2446428; 434386, 2450080; 432551, 2450083; 432001, 2448983; 432073, 2447674; 433046, 2446429; 434533, 2446441. 2447726; 432534, 2450174; 431629, 2450280; 433196, 2450196; 433287, (ii) Map of Unit 1–Montane Mesic for 2448739; 432565, 2450262; 432531, 2450063; 433353, 2449880; 433467, Akikiki (Oreomystis bairdi) follows: 2450116; 432740, 2450249; 432441, 2449787; 433429, 2449741; 433880, BILLING CODE 4310–55–S
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00109 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19068 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00110 Fmt 4701 Sfmt 4725 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES ER13AP10.022 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations 19069
(7) Unit 2–Montane Mesic, Kauai 2446280; 432559, 2446255; 432659, 2444792; 432135, 2444807; 432377, County, Hawaii. 2446240; 432948, 2446150; 433067, 2444722; 432548, 2444752; 431645, (i) Unit 2–Montane Mesic consists of 2445928; 432758, 2445304; 432001, 2445326; 431736, 2445617. 375.6 ac (152.0 ha) and includes land 2445941; 431873, 2444849; 432912, (ii) Map of Unit 2–Montane Mesic for bounded by the following UTM Zone 4, 2445580; 432674, 2444970; 431626, Akikiki (Oreomystis bairdi) follows: NAD 83 coordinates (E, N): 431975, 2445435; 431730, 2445114; 431950,
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00111 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19070 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00112 Fmt 4701 Sfmt 4725 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES ER13AP10.023 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations 19071
(8) Unit 3–Montane Mesic, Kauai 2440588; 437817, 2440071; 438028, 2440180; 437335, 2440329; 438159, County, Hawaii. 2440577; 437922, 2440355; 437336, 2440914; 438249, 2440857; 438253, (i) Unit 3–Montane Mesic consists of 2440335; 437912, 2440201; 437827, 2440854; 438243, 2440830; 438287, 138.5 ac (56.0 ha) and includes land 2440132; 437785, 2440013; 437687, 2440738; 437602, 2440771; 438227, bounded by the following UTM Zone 4, 2439960; 437636, 2439819; 437870, 2440730; 437586, 2439743. NAD 83 coordinates (E, N): 438012, 2440140; 437545, 2439761; 438149, (ii) Map of Unit 3–Montane Mesic for 2440389; 438014, 2440437; 438023, 2440714; 437529, 2439721; 437987, 2440484; 438111, 2440652; 438112, 2441027; 437450, 2440047; 437335, Akikiki (Oreomystis bairdi) follows:
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00113 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19072 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
BILLING CODE 4310–55–C
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00114 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES ER13AP10.024 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations 19073
(9) Unit 4–Montane Wet, Kauai 443557, 2444532; 443553, 2444537; 441834, 2446230; 441848, 2446265; County, Hawaii. 443610, 2444483; 443516, 2444546; 441855, 2446295; 441943, 2446256; (i) Unit 4–Montane Wet consists of 443617, 2444477; 443483, 2444551; 442202, 2445986; 442428, 2445851; 13,055.0 ac (5,283.2 ha) and includes 443478, 2444555; 443464, 2444570; 442381, 2445882; 442372, 2445885; land bounded by the following UTM 443459, 2444579; 443452, 2444591; 442317, 2445917; 442301, 2445924; Zone 4, NAD 83 coordinates (E, N): 443447, 2444608; 443534, 2444543; 442039, 2446165; 442261, 2445949; 448638, 2440764; 448601, 2440679; 443722, 2444464; 444016, 2444444; 442858, 2445342; 442175, 2445995; 448606, 2440704; 448612, 2440722; 443984, 2444419; 443985, 2444416; 442100, 2446007; 442082, 2446029; 448615, 2440731; 448619, 2440740; 443769, 2444440; 443760, 2444446; 442072, 2446052; 442067, 2446082; 448630, 2440759; 448650, 2440769; 443598, 2444493; 443732, 2444458; 442073, 2446121; 442273, 2445945; 448600, 2440668; 448622, 2440749; 446375, 2441172; 443703, 2444469; 443240, 2444927; 442821, 2445353; 448599, 2440647; 448601, 2440652; 443685, 2444463; 443677, 2444459; 443294, 2444870; 443290, 2444876; 448678, 2440741; 448777, 2440842; 443666, 2444456; 443647, 2444460; 443281, 2444890; 443271, 2444898; 448663, 2440773; 449006, 2441012; 443628, 2444469; 443740, 2444454; 443307, 2444833; 443252, 2444914; 448764, 2440857; 449068, 2441051; 441656, 2441573; 442568, 2441274; 443309, 2444829; 443234, 2444932; 449121, 2441114; 449121, 2441114; 440114, 2440528; 440464, 2440832; 443215, 2444938; 443196, 2444944; 448887, 2440934; 448811, 2440896; 440528, 2440844; 440586, 2440905; 443193, 2444946; 443177, 2444962; 448954, 2441097; 448943, 2441063; 440110, 2440524; 441650, 2441573; 443175, 2444965; 443260, 2444907; 448943, 2441053; 448943, 2441044; 440014, 2440441; 441659, 2441579; 443352, 2444721; 438757, 2442331; 448941, 2441024; 448940, 2441006; 441727, 2441586; 441774, 2441575; 443435, 2444664; 443423, 2444686; 448918, 2440982; 448877, 2440939; 441900, 2441576; 441968, 2441515; 443403, 2444695; 443385, 2444699; 448861, 2440927; 448735, 2440829; 446610, 2441349; 441637, 2441552; 443301, 2444851; 443366, 2444706; 448837, 2440912; 448678, 2440780; 439096, 2441847; 438866, 2442347; 443156, 2445003; 443346, 2444728; 448802, 2440889; 448788, 2440878; 438934, 2442351; 438960, 2442270; 443341, 2444740; 443333, 2444758; 449115, 2442038; 448745, 2440841; 438967, 2442246; 438976, 2442220; 443327, 2444778; 443320, 2444796; 449111, 2441196; 448727, 2440820; 440113, 2440527; 439088, 2441871; 443313, 2444815; 443373, 2444702; 448720, 2440813; 448711, 2440806; 442723, 2441295; 439491, 2440617; 442952, 2445303; 443029, 2445263; 448691, 2440790; 448841, 2440914; 439551, 2440431; 439556, 2440414; 443009, 2445266; 443006, 2445268; 447374, 2443275; 449244, 2441819; 439832, 2440430; 439931, 2440426; 442990, 2445276; 442981, 2445284; 447623, 2443445; 447616, 2443588; 440002, 2440430; 439037, 2442031; 443163, 2444984; 442956, 2445301; 447603, 2443646; 447556, 2443686; 445551, 2441162; 442287, 2441225; 443068, 2445227; 442934, 2445314; 447325, 2443651; 447295, 2443639; 445235, 2441328; 445344, 2441376; 442915, 2445323; 442898, 2445330; 447247, 2443586; 448634, 2443800; 445380, 2441414; 445392, 2441392; 442877, 2445336; 442862, 2445341; 447287, 2443339; 448657, 2443629; 444560, 2441032; 445510, 2441194; 443443, 2444647; 442972, 2445292; 447481, 2443262; 447636, 2443160; 444480, 2440997; 445886, 2441308; 443122, 2445132; 442842, 2445347; 447645, 2443143; 447645, 2443146; 446122, 2441415; 446214, 2441291; 443153, 2445020; 443153, 2445040; 447894, 2443371; 447865, 2443358; 448944, 2441075; 446300, 2441227; 443152, 2445059; 443150, 2445078; 447712, 2443351; 447631, 2443389; 446357, 2441185; 445395, 2441389; 443144, 2445096; 443047, 2445260; 448948, 2441084; 447249, 2443451; 443889, 2441172; 442843, 2441314; 443135, 2445115; 443065, 2445247; 448917, 2442504; 449106, 2441435; 442924, 2441340; 442982, 2441350; 443103, 2445152; 443083, 2445171; 449173, 2441529; 449201, 2441638; 442977, 2441356; 443016, 2441342; 443066, 2445190; 443066, 2445209; 449249, 2441697; 449275, 2441773; 445124, 2441205; 443707, 2441132; 443067, 2445215; 443158, 2444995; 449148, 2441893; 449090, 2442135; 443440, 2444655; 444062, 2441230; 443140, 2445105; 440025, 2445056; 449064, 2442221; 448614, 2443950; 444083, 2441215; 444109, 2441224; 439668, 2444981; 440214, 2445151; 448983, 2442384; 449078, 2441297; 444113, 2441221; 444124, 2441223; 440216, 2445150; 440347, 2445106; 448880, 2442563; 448861, 2442593; 444455, 2440990; 443023, 2441344; 440289, 2445097; 440078, 2445204; 448805, 2442677; 448765, 2442787; 442711, 2445664; 442430, 2445827; 440124, 2445056; 439994, 2445245; 448696, 2442955; 448653, 2443075; 442668, 2445560; 442666, 2445576; 439910, 2445087; 439796, 2445123; 448651, 2443187; 448674, 2443301; 442668, 2445590; 442674, 2445604; 439719, 2445133; 439696, 2445110; 448669, 2443477; 449024, 2442290; 442672, 2445510; 442713, 2445661; 439681, 2445072; 439364, 2444192; 444824, 2443350; 444161, 2444181; 442668, 2445494; 442501, 2445803; 440216, 2445076; 439480, 2445095; 445808, 2442898; 445681, 2442977; 442492, 2445803; 442467, 2445799; 438927, 2444790; 438982, 2444746; 445559, 2443010; 445437, 2443077; 442448, 2445805; 442444, 2445807; 439037, 2444786; 439157, 2444829; 446100, 2442628; 445045, 2443240; 443444, 2444627; 442710, 2445647; 439238, 2444846; 440165, 2445166; 446256, 2442602; 444659, 2443447; 442709, 2445399; 442804, 2445357; 439434, 2444999; 439643, 2444902; 444532, 2443516; 444456, 2443572; 442798, 2445359; 442785, 2445364; 439484, 2445120; 439501, 2445220; 444423, 2443638; 444334, 2443811; 442765, 2445370; 442747, 2445377; 439598, 2445317; 439699, 2445360; 446499, 2441271; 445254, 2443156; 442673, 2445515; 442727, 2445386; 439794, 2445352; 439883, 2445309; 446686, 2441764; 441856, 2446328; 442430, 2445830; 442694, 2445414; 439360, 2444907; 439945, 2444540; 446673, 2441408; 446651, 2441424; 442689, 2445419; 442682, 2445433; 439673, 2445011; 439890, 2444912; 446641, 2441436; 446587, 2441501; 442675, 2445453; 442671, 2445471; 439948, 2444922; 439994, 2444883; 445966, 2442725; 446640, 2441627; 442667, 2445490; 442743, 2445378; 440052, 2444784; 439859, 2444782; 444075, 2444349; 446694, 2442007; 441897, 2446273; 442435, 2445813; 439996, 2444642; 439859, 2444723; 446591, 2442195; 446650, 2442430; 442019, 2446165; 442005, 2446171; 439876, 2444423; 439825, 2444344; 446675, 2442432; 446482, 2442513; 441982, 2446194; 441963, 2446219; 439759, 2444342; 439685, 2444334; 446373, 2442574; 446587, 2441543; 442059, 2446159; 441929, 2446268; 439583, 2444266; 438838, 2442340; 443497, 2444548; 444237, 2444013; 442071, 2446146; 441879, 2446263; 440032, 2444731; 439254, 2444472; 443579, 2444514; 443571, 2444521; 441852, 2446219; 441838, 2446221; 439571, 2444823; 439485, 2444800;
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00115 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19074 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
439386, 2444762; 439258, 2444658; 438433, 2442319; 438436, 2442321; 448586, 2443203; 448512, 2443792; 439172, 2444564; 439864, 2444845; 438453, 2442321; 438453, 2442321; 448512, 2443783; 448513, 2443779; 439156, 2444527; 438580, 2444854; 438460, 2442320; 438373, 2442277; 448513, 2443769; 448473, 2443878; 439413, 2444371; 439522, 2444418; 437363, 2443282; 437751, 2441981; 448504, 2443752; 448470, 2443888; 439617, 2444459; 439747, 2444522; 437981, 2443476; 437808, 2443397; 448504, 2443735; 448507, 2443727; 439800, 2444594; 439843, 2444655; 437928, 2443310; 437950, 2443233; 448522, 2443706; 448538, 2443682; 439145, 2444538; 435698, 2452376; 438143, 2443587; 437364, 2443298; 448546, 2443665; 448552, 2443643; 438807, 2444845; 436003, 2452334; 438183, 2443628; 437277, 2443228; 448509, 2443760; 447932, 2443750; 435955, 2452326; 435902, 2452378; 437144, 2443208; 437065, 2443211; 447925, 2444320; 447843, 2444325; 435838, 2452443; 436579, 2452559; 437060, 2443212; 436974, 2443182; 447864, 2444277; 447942, 2444178; 435719, 2452378; 436804, 2452559; 436997, 2443061; 437657, 2443231; 448003, 2444015; 448500, 2443823; 435477, 2452358; 435478, 2452345; 438835, 2443883; 439282, 2444110; 447967, 2443867; 448549, 2443613; 435479, 2452304; 435517, 2452192; 439268, 2444068; 439181, 2444032; 447904, 2443646; 447921, 2443582; 435519, 2452190; 435540, 2452168; 439094, 2444009; 439048, 2443913; 447949, 2443460; 447939, 2443412; 435810, 2452427; 438006, 2453313; 438208, 2443477; 438964, 2443837; 448458, 2443882; 448470, 2443889; 438476, 2452702; 438465, 2452788; 437226, 2442709; 438723, 2443923; 448008, 2443903; 448590, 2443306; 438430, 2452817; 438386, 2452854; 438608, 2443916; 438453, 2443825; 448578, 2443441; 448572, 2443417; 438269, 2452930; 436189, 2452365; 438438, 2443814; 438318, 2443723; 448576, 2443405; 448584, 2443388; 438110, 2453148; 435895, 2451700; 438201, 2443629; 439043, 2443859; 448590, 2443369; 448552, 2443630; 437935, 2453510; 437933, 2453512; 437697, 2441878; 437601, 2441867; 448593, 2443325; 448591, 2443484; 437797, 2453318; 437592, 2453026; 437602, 2441867; 437617, 2441866; 448591, 2443291; 448592, 2443277; 437202, 2452948; 437201, 2452932; 437635, 2441866; 437647, 2441866; 448592, 2443261; 448592, 2443254; 438116, 2453088; 438263, 2444805; 437052, 2442940; 437689, 2441877; 448591, 2443241; 448673, 2442365; 436811, 2449026; 437237, 2447714; 437522, 2441879; 437705, 2441878; 448595, 2443352; 448553, 2443539; 437230, 2447713; 437248, 2447657; 437711, 2441887; 437717, 2441899; 448587, 2443214; 448544, 2443601; 437232, 2447645; 435631, 2452072; 437736, 2441928; 437740, 2441938; 448533, 2443587; 448527, 2443576; 438179, 2444732; 436566, 2449559; 438821, 2442339; 437674, 2441875; 448523, 2443570; 448518, 2443559; 438343, 2444896; 438406, 2444952; 437294, 2442356; 437747, 2441961; 448585, 2443461; 448528, 2443546; 438475, 2444955; 438523, 2444886; 437088, 2442647; 437103, 2442643; 448588, 2443466; 448560, 2443535; 438536, 2444858; 439298, 2444154; 437156, 2442615; 437159, 2442579; 448569, 2443527; 448577, 2443516; 438168, 2444734; 436235, 2450550; 437120, 2442503; 437566, 2441876; 448582, 2443508; 448589, 2443493; 438677, 2444833; 435961, 2451591; 437174, 2442422; 437532, 2441880; 448551, 2443621; 448518, 2443552; 436027, 2451466; 436103, 2451262; 437425, 2442191; 437307, 2442101; 449003, 2441449; 448936, 2441403; 436162, 2451016; 436212, 2450766; 437476, 2442051; 437493, 2441868; 449064, 2441492; 449060, 2441481; 436739, 2449180; 436234, 2450558; 437495, 2441869; 437182, 2442830; 449053, 2441472; 449049, 2441471; 436706, 2449252; 436250, 2450410; 437105, 2442445; 448431, 2442766; 449066, 2441511; 449032, 2441461; 436234, 2450237; 436386, 2449952; 448447, 2442675; 448469, 2442871; 449061, 2441528; 448971, 2441443; 436472, 2449769; 436566, 2449560; 448462, 2442858; 448442, 2442821; 448964, 2441441; 448952, 2441427; 435779, 2451881; 436230, 2450590; 448437, 2442805; 448481, 2442894; 448948, 2441420; 448945, 2441411; 438030, 2442243; 438130, 2442234; 448432, 2442775; 448486, 2442910; 448665, 2442379; 449040, 2441466; 437996, 2442188; 437998, 2442202; 448428, 2442750; 448428, 2442738; 449012, 2441616; 448972, 2441689; 437998, 2442205; 437999, 2442211; 448432, 2442727; 448437, 2442711; 446228, 2441279; 448995, 2441668; 437973, 2442147; 438012, 2442229; 448443, 2442699; 448671, 2442369; 449000, 2441660; 449004, 2441650; 437954, 2442136; 438049, 2442246; 448435, 2442791; 448579, 2443112; 449065, 2441502; 449009, 2441625; 438065, 2442246; 438088, 2442240; 448582, 2443190; 448582, 2443172; 448930, 2441400; 449017, 2441611; 438095, 2442238; 438098, 2442237; 448582, 2443162; 448583, 2443151; 449030, 2441595; 449037, 2441588; 439456, 2444205; 438000, 2442216; 448585, 2443140; 448477, 2442887; 449043, 2441578; 449046, 2441569; 437826, 2442106; 437754, 2441991; 448585, 2443122; 448447, 2442663; 449050, 2441561; 449006, 2441639; 437758, 2441998; 437766, 2442017; 448562, 2443086; 448545, 2443051; 448967, 2441159; 448940, 2441404; 437777, 2442052; 437791, 2442074; 448529, 2443019; 448507, 2442976; 448926, 2441212; 448930, 2441194; 437984, 2442167; 437806, 2442092; 448498, 2442952; 448490, 2442930; 448933, 2441184; 448941, 2441177; 438157, 2442234; 437839, 2442110; 448586, 2443129; 448642, 2442440; 448940, 2441238; 448961, 2441163; 437873, 2442121; 437887, 2442121; 448447, 2442688; 448602, 2442477; 448944, 2441250; 448972, 2441150; 437912, 2442123; 437926, 2442125; 448615, 2442472; 448623, 2442466; 448973, 2441143; 448972, 2441136; 437939, 2442128; 437799, 2442084; 448634, 2442459; 448566, 2442503; 448971, 2441119; 448969, 2441116; 438656, 2442321; 438114, 2442232; 448640, 2442451; 448550, 2442513; 448964, 2441109; 448949, 2441170; 438535, 2442314; 438536, 2442314; 448642, 2442430; 448642, 2442419; 448928, 2441313; 448922, 2441392; 438561, 2442316; 438577, 2442315; 448643, 2442410; 448648, 2442399; 448918, 2441381; 448916, 2441369; 438517, 2442310; 438626, 2442315; 448657, 2442387; 447996, 2444312; 448917, 2441357; 448919, 2441341; 438496, 2442310; 438668, 2442322; 448637, 2442455; 448464, 2442531; 448934, 2441230; 448925, 2441322; 438679, 2442324; 438694, 2442327; 448443, 2442636; 448443, 2442627; 448933, 2441715; 448935, 2441302; 438704, 2442326; 438721, 2442329; 448440, 2442604; 448438, 2442565; 448944, 2441291; 448948, 2441281; 446348, 2441177; 438609, 2442314; 448441, 2442549; 448587, 2442486; 448948, 2441273; 448948, 2441264; 438392, 2442294; 438219, 2442244; 448455, 2442534; 448589, 2443224; 448946, 2441259; 448920, 2441333; 438238, 2442248; 438254, 2442248; 448474, 2442530; 448488, 2442531; 448677, 2442140; 441868, 2446401; 438305, 2442256; 438355, 2442265; 448505, 2442534; 448515, 2442533; 448673, 2442209; 448671, 2442202; 438523, 2442310; 438376, 2442278; 448530, 2442527; 448536, 2442523; 448674, 2442187; 448680, 2442169; 437745, 2441950; 438418, 2442311; 448449, 2442536; 448502, 2443743; 448684, 2442226; 448682, 2442148;
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00116 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations 19075
448692, 2442233; 448675, 2442123; 440136, 2448537; 440120, 2448633; 438422, 2451414; 438481, 2451188; 448677, 2442115; 448683, 2442101; 440125, 2448690; 439875, 2448932; 448609, 2443974; 438669, 2452384; 448694, 2442089; 448710, 2442077; 440112, 2448732; 440451, 2447620; 438605, 2452379; 438540, 2452374; 448718, 2442069; 448684, 2442157; 440073, 2448762; 440036, 2448815; 438510, 2452340; 438449, 2452330; 448722, 2442303; 448677, 2442356; 440000, 2448878; 439982, 2448899; 438761, 2452013; 438490, 2452605; 448682, 2442350; 448697, 2442342; 439961, 2448915; 439941, 2448924; 438816, 2452396; 448591, 2444072; 448711, 2442341; 448721, 2442331; 440121, 2448718; 441363, 2447030; 448566, 2444172; 448548, 2444233; 448678, 2442221; 448723, 2442309; 440383, 2447794; 441405, 2446869; 448510, 2444279; 448464, 2444284; 448736, 2442055; 448718, 2442295; 441402, 2446899; 441403, 2446972; 448299, 2444289; 438431, 2452414; 448712, 2442283; 448707, 2442267; 441399, 2446995; 441455, 2446804; 439138, 2452428; 438670, 2451754; 448706, 2442257; 448705, 2442250; 441373, 2447026; 441476, 2446797; 438936, 2452213; 438977, 2452232; 448699, 2442238; 448724, 2442320; 441317, 2447043; 441283, 2447083; 438979, 2452233; 439031, 2452285; 448915, 2441796; 448850, 2441844; 441268, 2447104; 441240, 2447171; 439037, 2452297; 438716, 2452393; 448877, 2441825; 448884, 2441820; 441231, 2447186; 441219, 2447195; 439083, 2452342; 438779, 2452391; 448890, 2441818; 448892, 2441817; 441398, 2446997; 441674, 2446682; 448723, 2442061; 448910, 2441807; 448141, 2444294; 448986, 2441677; 439171, 2452514; 439201, 2452565; 448820, 2441871; 448913, 2441774; 441864, 2446424; 441847, 2446451; 439114, 2452513; 438954, 2452430; 448914, 2441760; 448913, 2441753; 441836, 2446475; 441434, 2446820; 438851, 2452395; 438833, 2452090; 448915, 2441738; 448925, 2441722; 441829, 2446505; 441148, 2447188; 439061, 2452327; 439044, 2449631; 448957, 2441700; 448900, 2441814; 441648, 2446705; 441620, 2446723; 438944, 2449813; 439167, 2449414; 448787, 2441967; 448939, 2441710; 441584, 2446741; 441549, 2446752; 439146, 2449435; 439114, 2449463; 448746, 2442051; 448755, 2442041; 441532, 2446763; 441521, 2446777; 439102, 2449480; 439220, 2449318; 448764, 2442029; 448768, 2442019; 441829, 2446501; 440674, 2447485; 439065, 2449586; 439230, 2449287; 448773, 2442013; 448840, 2441852; 440710, 2447368; 440699, 2447389; 439037, 2449642; 439025, 2449671; 448781, 2441990; 448831, 2441859; 440693, 2447407; 440695, 2447430; 439016, 2449687; 438999, 2449702; 448789, 2441938; 448803, 2441914; 440703, 2447452; 441201, 2447195; 438974, 2449738; 438965, 2449767; 448813, 2441900; 448814, 2441894; 440693, 2447475; 440800, 2447339; 439076, 2449548; 439382, 2449107; 448817, 2441884; 448728, 2442058; 440599, 2447501; 440579, 2447511; 439508, 2448984; 439451, 2449000; 448777, 2442002; 440375, 2448361; 440540, 2447539; 440487, 2447571; 439437, 2449023; 438680, 2451783; 440198, 2448467; 440421, 2448239; 440468, 2447593; 440124, 2448663; 439433, 2449078; 439200, 2449362; 440415, 2448290; 440416, 2448314; 440703, 2447461; 440941, 2447230; 439399, 2449097; 439421, 2449088; 440411, 2448336; 440401, 2448191; 440413, 2447711; 441133, 2447183; 439361, 2449126; 439330, 2449145; 440391, 2448353; 440384, 2448138; 441113, 2447170; 441095, 2447154; 439307, 2449169; 439277, 2449220; 440350, 2448395; 440331, 2448411; 441083, 2447147; 441058, 2447153; 439260, 2449242; 439244, 2449261; 440307, 2448418; 440254, 2448428; 440722, 2447354; 440969, 2447210; 438425, 2451047; 438554, 2450559; 440237, 2448434; 439526, 2448944; 440740, 2447346; 440888, 2447250; 438737, 2450311; 438736, 2450325; 440402, 2448352; 440409, 2447991; 440873, 2447265; 440865, 2447286; 438731, 2450342; 438715, 2450373; 440377, 2447819; 440378, 2447845; 440858, 2447311; 440842, 2447328; 438690, 2450392; 438621, 2450415; 440384, 2447871; 440395, 2447896; 441172, 2447190; 441039, 2447168; 438732, 2450286; 438578, 2450438; 440436, 2447941; 440413, 2448216; 438599, 2451708; 438434, 2451069; 438501, 2450796; 438488, 2450686; 440426, 2447974; 440190, 2448485; 438440, 2451600; 438425, 2451652; 438472, 2450910; 438435, 2450985; 440343, 2448005; 440329, 2448016; 438429, 2451670; 438442, 2451682; 438427, 2450964; 438919, 2449853; 440325, 2448033; 440331, 2448061; 438419, 2451509; 438529, 2451692; 439437, 2449066; 438581, 2450423; 440341, 2448084; 440374, 2448123; 438410, 2451464; 438657, 2451738; 438816, 2450028; 438717, 2450241; 440435, 2447959; 439678, 2448950; 439516, 2448971; 438675, 2451766; 438894, 2449879; 438884, 2449918; 440218, 2448446; 439853, 2448941; 440125, 2448578; 438680, 2451858; 438904, 2449863; 438831, 2450010; 439830, 2448945; 439788, 2448929; 438715, 2451908; 438484, 2451690; 438850, 2449982; 438791, 2450036; 439761, 2448926; 439900, 2448928; 438467, 2451228; 438455, 2451089; 438765, 2450051; 438744, 2450081; 439697, 2448941; 439922, 2448928; 438463, 2451098; 438475, 2451113; 439656, 2448949; 439633, 2448940; 438484, 2451141; 438486, 2451163; 438730, 2450109; 438717, 2450158; 439611, 2448928; 439578, 2448906; 438435, 2451571; 438472, 2451209; 438716, 2450162; 438713, 2450206. 439553, 2448909; 439539, 2448922; 438888, 2452163; 438472, 2451261; (ii) Map of Unit 4–Montane Wet for 439733, 2448930; 440089, 2448747; 438481, 2451287; 438485, 2451346; Akikiki (Oreomystis bairdi) follows: 440179, 2448496; 440157, 2448511; 438478, 2451359; 438454, 2451380; BILLING CODE 4310–55–S
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00117 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19076 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00118 Fmt 4701 Sfmt 4725 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES ER13AP10.025 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations 19077
(10) Unit 5–Montane Wet, Kauai 2449278; 434833, 2449278; 434833, 2449863; 434137, 2449869; 434124, County, Hawaii. 2449280; 434833, 2449281; 434872, 2449948; 434074, 2449972; 433461, (i) Unit 5–Montane Wet consists of 2449294; 434881, 2449297; 434884, 2449623; 433339, 2449381; 435234, 789.9 ac (319.7 ha) and includes land 2449298; 435010, 2449343; 434899, 2449384; 433589, 2449323; 433725, bounded by the following UTM Zone 4, 2449305; 433903, 2449882; 435011, 2448994; 433545, 2449136; 433389, NAD 83 coordinates (E, N): 433436, 2449352; 435010, 2449343; 435005, 2449256; 433567, 2449260; 433588, 2449707; 433445, 2449707; 433444, 2449310; 434948, 2449300; 434908, 2449244; 433880, 2448827; 433612, 2449707; 433443, 2449707; 433458, 2449290; 434908, 2449290; 434890, 2449262; 433525, 2449415; 433567, 2449707; 433436, 2449707; 433426, 2449251; 434872, 2449246; 434848, 2449398; 433546, 2449412; 434627, 2449707; 433408, 2449708; 433429, 2449239; 434844, 2449248; 434034, 2447088; 433448, 2449426; 435236, 2449741; 433493, 2449765; 433633, 2449950; 434026, 2449951; 433969, 2449347; 433368, 2449293; 433599, 2449724; 433742, 2449724; 433467, 2449958; 434898, 2449304; 435183, 2449787; 433460, 2449707; 433468, 2449401; 434713, 2447038; 434738, 2449252; 434202, 2447345; 433367, 2449706; 433484, 2449694; 433414, 2447045; 434738, 2447030; 434795, 2449352; 434073, 2448685; 434357, 2449628; 433461, 2449623; 433457, 2447069; 434994, 2447085; 435093, 2447229; 434073, 2447500; 434086, 2449622; 433339, 2449600; 433440, 2447245; 435290, 2447449; 435295, 2447693; 434163, 2447783; 434254, 2449604; 433437, 2449592; 433426, 2447440; 435360, 2447538; 435282, 2447886; 434318, 2448182; 434318, 2449556; 433419, 2449599; 433831, 2448685; 435266, 2448909; 435236, 2448298; 434292, 2448479; 434279, 2449767; 434991, 2449344; 433401, 2449351; 434686, 2447020; 435232, 2447951; 434486, 2447126; 434228, 2449697; 433480, 2449629; 434938, 2449399; 435272, 2448835; 435080, 2448620. 2449321; 433313, 2449484; 433455, 2449407; 434920, 2449394; 434752, (ii) Map of Unit 5–Montane Wet for 2449620; 434842, 2449253; 434839, 2449405; 434498, 2449522; 434338, Akikiki (Oreomystis bairdi) follows: 2449258; 434834, 2449277; 434833, 2449660; 434208, 2449767; 434141,
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00119 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19078 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00120 Fmt 4701 Sfmt 4725 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES ER13AP10.026 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations 19079
(11) Unit 6–Montane Wet, Kauai 2447795; 447961, 2448628; 448037, 2449443; 448964, 2449425; 448952, County, Hawaii. 2448780; 448088, 2448897; 448122, 2449316; 448954, 2449143; 448881, (i) Unit 6–Montane Wet consists of 2449037; 448119, 2449134; 448056, 2447609; 448987, 2448959; 448980, 413.5 ac (167.3 ha) and includes land 2449368; 448099, 2449454; 448242, 2446980; 448979, 2446983; 448577, bounded by the following UTM Zone 4, 2449457; 448328, 2449449; 448440, 2449143; 448980, 2446982; 448981, NAD 83 coordinates (E, N): 448516, 2449296; 448382, 2449406; 448887, 2446981; 449105, 2447827; 449087, 2447525; 447976, 2448470; 448042, 2447191; 448091, 2449266; 448610, 2447916; 449044, 2448132; 449032, 2448338; 448133, 2448200; 448235, 2449255; 448931, 2447092; 448511, 2448326; 449045, 2448506; 449040, 2448042; 448834, 2447273; 448288, 2449199; 448623, 2449141; 448641, 2448659; 449012, 2448822. 2447915; 448412, 2447653; 448669, 2449184; 448593, 2449298; 448613, 2447406; 447943, 2448562; 448763, 2449357; 448702, 2449395; 448812, (ii) Map of Unit 6–Montane Wet for 2447342; 448059, 2449434; 448321, 2449420; 448906, 2449440; 448959, Akikiki (Oreomystis bairdi) follows:
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00121 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19080 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00122 Fmt 4701 Sfmt 4725 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES ER13AP10.027 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations 19081
* * * * * (D) Canopy: Acacia, Metrosideros, (E) Subcanopy: Broussaisia, Cibotium, (i) Insects. Psychotria, Tetraplasandra, Eurya, Ilex, Myrsine. * * * * * Zanthoxylum. (F) Understory: Ferns, Carex, (E) Subcanopy: Cheirodendron, Coprosma, Leptecophylla, Oreobolus, Hawaiian picture-wing fly (Drosophila Coprosma, Kadua, Ilex, Myoporum, Rhynchospora, Vaccinium. sharpi) Myrsine. (G) Larval host plants (Cheirodendron (1) Critical habitat units are depicted (F) Understory: Bidens, Dryopteris, sp., Tetraplasandra sp.). for Kauai County, Hawaii, on the maps Leptecophylla, Poa, Scaevola, Sophora. (3) Manmade features and structures, (G) Larval host plants (Cheirodendron below. such as buildings, roads, railroads, sp., Tetraplasandra sp.). (2) Primary constituent elements. (ii) In units 4, 5, and 6, the primary airports, runways, other paved areas, (i) In units 1, 2, and 3, the primary constituent elements of critical habitat lawns, and other urban landscaped constituent elements of critical habitat for Hawaiian picture-wing fly areas, existing on the effective date of for Hawaiian picture-wing fly (Drosophila sharpi) are: this rule do not contain one or more of (Drosophila sharpi) are: (A) Elevation: 3,000 to 5,243 ft (914 to the primary constituent elements. (A) Elevation: 3,000 to 5,243 ft (914 to 1,598 m). (4) Critical habitat maps. Maps were 1,598 m). (B) Annual precipitation: Greater than created in GIS, with coordinates in UTM (B) Annual precipitation: 50 to 75 75 inches (190 centimeters). Zone 4 with units in meters using North inches (127 to 190 centimeters). (C) Substrate: Well-developed soils, American datum of 1983 (NAD 83). (C) Substrate: Weathered aa lava montane bogs. (5) Index map of critical habitat units flows, rocky mucks, thin silty loams, (D) Canopy: Acacia, Charpentiera, for Hawaiian picture-wing fly deep volcanic ash soils. Cheirodendron, Metrosideros. (Drosophila sharpi) follows:
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00123 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19082 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
BILLING CODE 4310–55–C
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00124 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES ER13AP10.028 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations 19083
(6) Unit 1–Montane Mesic, Kauai 2449848; 432808, 2450383; 432882, 2448994; 433401, 2449697; 433339, County, Hawaii. 2450351; 432904, 2450341; 432827, 2449600; 433313, 2449484; 433339, (i) Unit 1–Montane Mesic consists of 2447751; 432932, 2447668; 433014, 2449381; 433368, 2449293; 433368, 2,422.6 ac (980.4 ha) and includes land 2447717; 433109, 2447775; 433094, 2449292; 433369, 2449255; 433389, bounded by the following UTM Zone 4, 2447922; 432560, 2450267; 431875, 2449256; 434254, 2447886; 433408, NAD83 coordinates (E, N): 430107, 2449780; 431322, 2449418; 431403, 2449708; 433527, 2447856; 434086, 2447429; 430242, 2447664; 430073, 2449436; 431727, 2449372; 431769, 2446095; 433862, 2446165; 433606, 2447126; 430793, 2448310; 430124, 2449447; 431705, 2449569; 431720, 2446193; 433449, 2446235; 433397, 2446907; 430393, 2447748; 430690, 2449620; 431805, 2449591; 431919, 2446440; 433257, 2446958; 433577, 2447765; 430671, 2447997; 430764, 2449578; 432498, 2449952; 431904, 2447086; 433706, 2447138; 434090, 2448188; 430886, 2448507; 430903, 2449665; 432486, 2449909; 432046, 2446098; 433562, 2447841; 432639, 2448664; 430985, 2448705; 431560, 2449781; 432052, 2449783; 432113, 2447624; 432918, 2447407; 432672, 2448675; 431414, 2448890; 430291, 2449740; 432217, 2449712; 432251, 2447598; 434620, 2446512; 432609, 2446570; 431058, 2446300; 431200, 2449685; 432259, 2449679; 432344, 2447647; 434318, 2448182; 432195, 2449070; 431362, 2449169; 431171, 2449744; 432419, 2449806; 431322, 2447587; 432136, 2447629; 432133, 2448699; 430854, 2445930; 432530, 2449372; 431905, 2449660; 434486, 2447631; 432081, 2447668; 433746, 2450196; 431391, 2449273; 431323, 2447126; 434073, 2448685; 434228, 2447766; 434500, 2446448; 432320, 2447013; 431211, 2446394; 431101, 2448620; 434292, 2448479; 434318, 2447497; 434103, 2446297; 434618, 2446447; 431112, 2446394; 431069, 2448298; 434279, 2447951; 434163, 2446459; 434582, 2446443; 434558, 2446331; 431007, 2446203; 430944, 2447783; 434086, 2447693; 434073, 2446439; 434514, 2446449; 434471, 2446145; 430902, 2445976; 430191, 2447500; 434623, 2446526; 434357, 2446422; 434457, 2446416; 434447, 2446386; 430826, 2445805; 430857, 2447229; 433545, 2449136; 434627, 2446420; 434392, 2446421; 434423, 2445727; 430824, 2445631; 430442, 2447088; 434686, 2447020; 434682, 2446441; 434416, 2446441; 434625, 2445640; 430323, 2445779; 430204, 2447017; 434657, 2446977; 434652, 2446467; 434201, 2446573; 434403, 2445809; 430191, 2445898; 429898, 2446933; 434612, 2446807; 434641, 2446435; 434628, 2446479; 434400, 2446100; 429871, 2446234; 430939, 2446663; 434631, 2446528; 434202, 2446429; 434434, 2446428; 434386, 2446061; 432796, 2450365; 432504, 2447345; 433399, 2449709; 431205, 2446429; 434533, 2446441. 2449961; 432579, 2450036; 432552, 2448983; 432073, 2447674; 433046, 2450080; 432551, 2450083; 432001, 2450280; 433196, 2450196; 433287, (ii) Map of Unit 1–Montane Mesic for 2447726; 432534, 2450174; 431629, 2450063; 433353, 2449880; 433467, Hawaiian picture-wing fly (Drosophila 2448739; 432565, 2450262; 432531, 2449787; 433429, 2449741; 433880, sharpi) follows: 2450116; 432740, 2450249; 432441, 2448827; 433407, 2449708; 433725, BILLING CODE 4310–55–S
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00125 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19084 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00126 Fmt 4701 Sfmt 4725 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES ER13AP10.029 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations 19085
(7) Unit 2–Montane Mesic, Kauai 2446280; 432559, 2446255; 432659, 2444792; 432135, 2444807; 432377, County, Hawaii. 2446240; 432948, 2446150; 433067, 2444722; 432548, 2444752; 431645, (i) Unit 2–Montane Mesic consists of 2445928; 432758, 2445304; 432001, 2445326; 431736, 2445617. 375.6 ac (152.0 ha) and includes land 2445941; 431873, 2444849; 432912, (ii) Map of Unit 2–Montane Mesic for bounded by the following UTM Zone 4, 2445580; 432674, 2444970; 431626, Hawaiian picture-wing fly (Drosophila NAD83 coordinates (E, N): 431975, 2445435; 431730, 2445114; 431950, sharpi) follows:
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00127 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19086 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00128 Fmt 4701 Sfmt 4725 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES ER13AP10.030 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations 19087
(8) Unit 3–Montane Mesic, Kauai 2440588; 437817, 2440071; 438028, 2440180; 437335, 2440329; 438159, County, Hawaii. 2440577; 437922, 2440355; 437336, 2440914; 438249, 2440857; 438253, (i) Unit 3–Montane Mesic consists of 2440335; 437912, 2440201; 437827, 2440854; 438243, 2440830; 438287, 138.5 ac (56.0 ha) and includes land 2440132; 437785, 2440013; 437687, 2440738; 437602, 2440771; 438227, bounded by the following UTM Zone 4, 2439960; 437636, 2439819; 437870, 2440730; 437586, 2439743. NAD83 coordinates (E, N): 438012, 2440140; 437545, 2439761; 438149, (ii) Map of Unit 3–Montane Mesic for 2440389; 438014, 2440437; 438023, 2440714; 437529, 2439721; 437987, Hawaiian picture-wing fly (Drosophila 2440484; 438111, 2440652; 438112, 2441027; 437450, 2440047; 437335, sharpi) follows:
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00129 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19088 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
BILLING CODE 4310–031–C
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00130 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES ER13AP10.031 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations 19089
(9) Unit 4–Montane Wet, Kauai 443557, 2444532; 443553, 2444537; 441834, 2446230; 441848, 2446265; County, Hawaii. 443610, 2444483; 443516, 2444546; 441855, 2446295; 441943, 2446256; (i) Unit 4–Montane Wet consists of 443617, 2444477; 443483, 2444551; 442202, 2445986; 442428, 2445851; 13,055.0 ac (5,283.2 ha) and includes 443478, 2444555; 443464, 2444570; 442381, 2445882; 442372, 2445885; land bounded by the following UTM 443459, 2444579; 443452, 2444591; 442317, 2445917; 442301, 2445924; Zone 4, NAD83 coordinates (E, N): 443447, 2444608; 443534, 2444543; 442039, 2446165; 442261, 2445949; 448638, 2440764; 448601, 2440679; 443722, 2444464; 444016, 2444444; 442858, 2445342; 442175, 2445995; 448606, 2440704; 448612, 2440722; 443984, 2444419; 443985, 2444416; 442100, 2446007; 442082, 2446029; 448615, 2440731; 448619, 2440740; 443769, 2444440; 443760, 2444446; 442072, 2446052; 442067, 2446082; 448630, 2440759; 448650, 2440769; 443598, 2444493; 443732, 2444458; 442073, 2446121; 442273, 2445945; 448600, 2440668; 448622, 2440749; 446375, 2441172; 443703, 2444469; 443240, 2444927; 442821, 2445353; 448599, 2440647; 448601, 2440652; 443685, 2444463; 443677, 2444459; 443294, 2444870; 443290, 2444876; 448678, 2440741; 448777, 2440842; 443666, 2444456; 443647, 2444460; 443281, 2444890; 443271, 2444898; 448663, 2440773; 449006, 2441012; 443628, 2444469; 443740, 2444454; 443307, 2444833; 443252, 2444914; 448764, 2440857; 449068, 2441051; 441656, 2441573; 442568, 2441274; 443309, 2444829; 443234, 2444932; 449121, 2441114; 449121, 2441114; 440114, 2440528; 440464, 2440832; 443215, 2444938; 443196, 2444944; 448887, 2440934; 448811, 2440896; 440528, 2440844; 440586, 2440905; 443193, 2444946; 443177, 2444962; 448954, 2441097; 448943, 2441063; 440110, 2440524; 441650, 2441573; 443175, 2444965; 443260, 2444907; 448943, 2441053; 448943, 2441044; 440014, 2440441; 441659, 2441579; 443352, 2444721; 438757, 2442331; 448941, 2441024; 448940, 2441006; 441727, 2441586; 441774, 2441575; 443435, 2444664; 443423, 2444686; 448918, 2440982; 448877, 2440939; 441900, 2441576; 441968, 2441515; 443403, 2444695; 443385, 2444699; 448861, 2440927; 448735, 2440829; 446610, 2441349; 441637, 2441552; 443301, 2444851; 443366, 2444706; 448837, 2440912; 448678, 2440780; 439096, 2441847; 438866, 2442347; 443156, 2445003; 443346, 2444728; 448802, 2440889; 448788, 2440878; 438934, 2442351; 438960, 2442270; 443341, 2444740; 443333, 2444758; 449115, 2442038; 448745, 2440841; 438967, 2442246; 438976, 2442220; 443327, 2444778; 443320, 2444796; 449111, 2441196; 448727, 2440820; 440113, 2440527; 439088, 2441871; 443313, 2444815; 443373, 2444702; 448720, 2440813; 448711, 2440806; 442723, 2441295; 439491, 2440617; 442952, 2445303; 443029, 2445263; 448691, 2440790; 448841, 2440914; 439551, 2440431; 439556, 2440414; 443009, 2445266; 443006, 2445268; 447374, 2443275; 449244, 2441819; 439832, 2440430; 439931, 2440426; 442990, 2445276; 442981, 2445284; 447623, 2443445; 447616, 2443588; 440002, 2440430; 439037, 2442031; 443163, 2444984; 442956, 2445301; 447603, 2443646; 447556, 2443686; 445551, 2441162; 442287, 2441225; 443068, 2445227; 442934, 2445314; 447325, 2443651; 447295, 2443639; 445235, 2441328; 445344, 2441376; 442915, 2445323; 442898, 2445330; 447247, 2443586; 448634, 2443800; 445380, 2441414; 445392, 2441392; 442877, 2445336; 442862, 2445341; 447287, 2443339; 448657, 2443629; 444560, 2441032; 445510, 2441194; 443443, 2444647; 442972, 2445292; 447481, 2443262; 447636, 2443160; 444480, 2440997; 445886, 2441308; 443122, 2445132; 442842, 2445347; 447645, 2443143; 447645, 2443146; 446122, 2441415; 446214, 2441291; 443153, 2445020; 443153, 2445040; 447894, 2443371; 447865, 2443358; 448944, 2441075; 446300, 2441227; 443152, 2445059; 443150, 2445078; 447712, 2443351; 447631, 2443389; 446357, 2441185; 445395, 2441389; 443144, 2445096; 443047, 2445260; 448948, 2441084; 447249, 2443451; 443889, 2441172; 442843, 2441314; 443135, 2445115; 443065, 2445247; 448917, 2442504; 449106, 2441435; 442924, 2441340; 442982, 2441350; 443103, 2445152; 443083, 2445171; 449173, 2441529; 449201, 2441638; 442977, 2441356; 443016, 2441342; 443066, 2445190; 443066, 2445209; 449249, 2441697; 449275, 2441773; 445124, 2441205; 443707, 2441132; 443067, 2445215; 443158, 2444995; 449148, 2441893; 449090, 2442135; 443440, 2444655; 444062, 2441230; 443140, 2445105; 440025, 2445056; 449064, 2442221; 448614, 2443950; 444083, 2441215; 444109, 2441224; 439668, 2444981; 440214, 2445151; 448983, 2442384; 449078, 2441297; 444113, 2441221; 444124, 2441223; 440216, 2445150; 440347, 2445106; 448880, 2442563; 448861, 2442593; 444455, 2440990; 443023, 2441344; 440289, 2445097; 440078, 2445204; 448805, 2442677; 448765, 2442787; 442711, 2445664; 442430, 2445827; 440124, 2445056; 439994, 2445245; 448696, 2442955; 448653, 2443075; 442668, 2445560; 442666, 2445576; 439910, 2445087; 439796, 2445123; 448651, 2443187; 448674, 2443301; 442668, 2445590; 442674, 2445604; 439719, 2445133; 439696, 2445110; 448669, 2443477; 449024, 2442290; 442672, 2445510; 442713, 2445661; 439681, 2445072; 439364, 2444192; 444824, 2443350; 444161, 2444181; 442668, 2445494; 442501, 2445803; 440216, 2445076; 439480, 2445095; 445808, 2442898; 445681, 2442977; 442492, 2445803; 442467, 2445799; 438927, 2444790; 438982, 2444746; 445559, 2443010; 445437, 2443077; 442448, 2445805; 442444, 2445807; 439037, 2444786; 439157, 2444829; 446100, 2442628; 445045, 2443240; 443444, 2444627; 442710, 2445647; 439238, 2444846; 440165, 2445166; 446256, 2442602; 444659, 2443447; 442709, 2445399; 442804, 2445357; 439434, 2444999; 439643, 2444902; 444532, 2443516; 444456, 2443572; 442798, 2445359; 442785, 2445364; 439484, 2445120; 439501, 2445220; 444423, 2443638; 444334, 2443811; 442765, 2445370; 442747, 2445377; 439598, 2445317; 439699, 2445360; 446499, 2441271; 445254, 2443156; 442673, 2445515; 442727, 2445386; 439794, 2445352; 439883, 2445309; 446686, 2441764; 441856, 2446328; 442430, 2445830; 442694, 2445414; 439360, 2444907; 439945, 2444540; 446673, 2441408; 446651, 2441424; 442689, 2445419; 442682, 2445433; 439673, 2445011; 439890, 2444912; 446641, 2441436; 446587, 2441501; 442675, 2445453; 442671, 2445471; 439948, 2444922; 439994, 2444883; 445966, 2442725; 446640, 2441627; 442667, 2445490; 442743, 2445378; 440052, 2444784; 439859, 2444782; 444075, 2444349; 446694, 2442007; 441897, 2446273; 442435, 2445813; 439996, 2444642; 439859, 2444723; 446591, 2442195; 446650, 2442430; 442019, 2446165; 442005, 2446171; 439876, 2444423; 439825, 2444344; 446675, 2442432; 446482, 2442513; 441982, 2446194; 441963, 2446219; 439759, 2444342; 439685, 2444334; 446373, 2442574; 446587, 2441543; 442059, 2446159; 441929, 2446268; 439583, 2444266; 438838, 2442340; 443497, 2444548; 444237, 2444013; 442071, 2446146; 441879, 2446263; 440032, 2444731; 439254, 2444472; 443579, 2444514; 443571, 2444521; 441852, 2446219; 441838, 2446221; 439571, 2444823; 439485, 2444800;
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00131 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19090 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
439386, 2444762; 439258, 2444658; 438433, 2442319; 438436, 2442321; 448586, 2443203; 448512, 2443792; 439172, 2444564; 439864, 2444845; 438453, 2442321; 438453, 2442321; 448512, 2443783; 448513, 2443779; 439156, 2444527; 438580, 2444854; 438460, 2442320; 438373, 2442277; 448513, 2443769; 448473, 2443878; 439413, 2444371; 439522, 2444418; 437363, 2443282; 437751, 2441981; 448504, 2443752; 448470, 2443888; 439617, 2444459; 439747, 2444522; 437981, 2443476; 437808, 2443397; 448504, 2443735; 448507, 2443727; 439800, 2444594; 439843, 2444655; 437928, 2443310; 437950, 2443233; 448522, 2443706; 448538, 2443682; 439145, 2444538; 435698, 2452376; 438143, 2443587; 437364, 2443298; 448546, 2443665; 448552, 2443643; 438807, 2444845; 436003, 2452334; 438183, 2443628; 437277, 2443228; 448509, 2443760; 447932, 2443750; 435955, 2452326; 435902, 2452378; 437144, 2443208; 437065, 2443211; 447925, 2444320; 447843, 2444325; 435838, 2452443; 436579, 2452559; 437060, 2443212; 436974, 2443182; 447864, 2444277; 447942, 2444178; 435719, 2452378; 436804, 2452559; 436997, 2443061; 437657, 2443231; 448003, 2444015; 448500, 2443823; 435477, 2452358; 435478, 2452345; 438835, 2443883; 439282, 2444110; 447967, 2443867; 448549, 2443613; 435479, 2452304; 435517, 2452192; 439268, 2444068; 439181, 2444032; 447904, 2443646; 447921, 2443582; 435519, 2452190; 435540, 2452168; 439094, 2444009; 439048, 2443913; 447949, 2443460; 447939, 2443412; 435810, 2452427; 438006, 2453313; 438208, 2443477; 438964, 2443837; 448458, 2443882; 448470, 2443889; 438476, 2452702; 438465, 2452788; 437226, 2442709; 438723, 2443923; 448008, 2443903; 448590, 2443306; 438430, 2452817; 438386, 2452854; 438608, 2443916; 438453, 2443825; 448578, 2443441; 448572, 2443417; 438269, 2452930; 436189, 2452365; 438438, 2443814; 438318, 2443723; 448576, 2443405; 448584, 2443388; 438110, 2453148; 435895, 2451700; 438201, 2443629; 439043, 2443859; 448590, 2443369; 448552, 2443630; 437935, 2453510; 437933, 2453512; 437697, 2441878; 437601, 2441867; 448593, 2443325; 448591, 2443484; 437797, 2453318; 437592, 2453026; 437602, 2441867; 437617, 2441866; 448591, 2443291; 448592, 2443277; 437202, 2452948; 437201, 2452932; 437635, 2441866; 437647, 2441866; 448592, 2443261; 448592, 2443254; 438116, 2453088; 438263, 2444805; 437052, 2442940; 437689, 2441877; 448591, 2443241; 448673, 2442365; 436811, 2449026; 437237, 2447714; 437522, 2441879; 437705, 2441878; 448595, 2443352; 448553, 2443539; 437230, 2447713; 437248, 2447657; 437711, 2441887; 437717, 2441899; 448587, 2443214; 448544, 2443601; 437232, 2447645; 435631, 2452072; 437736, 2441928; 437740, 2441938; 448533, 2443587; 448527, 2443576; 438179, 2444732; 436566, 2449559; 438821, 2442339; 437674, 2441875; 448523, 2443570; 448518, 2443559; 438343, 2444896; 438406, 2444952; 437294, 2442356; 437747, 2441961; 448585, 2443461; 448528, 2443546; 438475, 2444955; 438523, 2444886; 437088, 2442647; 437103, 2442643; 448588, 2443466; 448560, 2443535; 438536, 2444858; 439298, 2444154; 437156, 2442615; 437159, 2442579; 448569, 2443527; 448577, 2443516; 438168, 2444734; 436235, 2450550; 437120, 2442503; 437566, 2441876; 448582, 2443508; 448589, 2443493; 438677, 2444833; 435961, 2451591; 437174, 2442422; 437532, 2441880; 448551, 2443621; 448518, 2443552; 436027, 2451466; 436103, 2451262; 437425, 2442191; 437307, 2442101; 449003, 2441449; 448936, 2441403; 436162, 2451016; 436212, 2450766; 437476, 2442051; 437493, 2441868; 449064, 2441492; 449060, 2441481; 436739, 2449180; 436234, 2450558; 437495, 2441869; 437182, 2442830; 449053, 2441472; 449049, 2441471; 436706, 2449252; 436250, 2450410; 437105, 2442445; 448431, 2442766; 449066, 2441511; 449032, 2441461; 436234, 2450237; 436386, 2449952; 448447, 2442675; 448469, 2442871; 449061, 2441528; 448971, 2441443; 436472, 2449769; 436566, 2449560; 448462, 2442858; 448442, 2442821; 448964, 2441441; 448952, 2441427; 435779, 2451881; 436230, 2450590; 448437, 2442805; 448481, 2442894; 448948, 2441420; 448945, 2441411; 438030, 2442243; 438130, 2442234; 448432, 2442775; 448486, 2442910; 448665, 2442379; 449040, 2441466; 437996, 2442188; 437998, 2442202; 448428, 2442750; 448428, 2442738; 449012, 2441616; 448972, 2441689; 437998, 2442205; 437999, 2442211; 448432, 2442727; 448437, 2442711; 446228, 2441279; 448995, 2441668; 437973, 2442147; 438012, 2442229; 448443, 2442699; 448671, 2442369; 449000, 2441660; 449004, 2441650; 437954, 2442136; 438049, 2442246; 448435, 2442791; 448579, 2443112; 449065, 2441502; 449009, 2441625; 438065, 2442246; 438088, 2442240; 448582, 2443190; 448582, 2443172; 448930, 2441400; 449017, 2441611; 438095, 2442238; 438098, 2442237; 448582, 2443162; 448583, 2443151; 449030, 2441595; 449037, 2441588; 439456, 2444205; 438000, 2442216; 448585, 2443140; 448477, 2442887; 449043, 2441578; 449046, 2441569; 437826, 2442106; 437754, 2441991; 448585, 2443122; 448447, 2442663; 449050, 2441561; 449006, 2441639; 437758, 2441998; 437766, 2442017; 448562, 2443086; 448545, 2443051; 448967, 2441159; 448940, 2441404; 437777, 2442052; 437791, 2442074; 448529, 2443019; 448507, 2442976; 448926, 2441212; 448930, 2441194; 437984, 2442167; 437806, 2442092; 448498, 2442952; 448490, 2442930; 448933, 2441184; 448941, 2441177; 438157, 2442234; 437839, 2442110; 448586, 2443129; 448642, 2442440; 448940, 2441238; 448961, 2441163; 437873, 2442121; 437887, 2442121; 448447, 2442688; 448602, 2442477; 448944, 2441250; 448972, 2441150; 437912, 2442123; 437926, 2442125; 448615, 2442472; 448623, 2442466; 448973, 2441143; 448972, 2441136; 437939, 2442128; 437799, 2442084; 448634, 2442459; 448566, 2442503; 448971, 2441119; 448969, 2441116; 438656, 2442321; 438114, 2442232; 448640, 2442451; 448550, 2442513; 448964, 2441109; 448949, 2441170; 438535, 2442314; 438536, 2442314; 448642, 2442430; 448642, 2442419; 448928, 2441313; 448922, 2441392; 438561, 2442316; 438577, 2442315; 448643, 2442410; 448648, 2442399; 448918, 2441381; 448916, 2441369; 438517, 2442310; 438626, 2442315; 448657, 2442387; 447996, 2444312; 448917, 2441357; 448919, 2441341; 438496, 2442310; 438668, 2442322; 448637, 2442455; 448464, 2442531; 448934, 2441230; 448925, 2441322; 438679, 2442324; 438694, 2442327; 448443, 2442636; 448443, 2442627; 448933, 2441715; 448935, 2441302; 438704, 2442326; 438721, 2442329; 448440, 2442604; 448438, 2442565; 448944, 2441291; 448948, 2441281; 446348, 2441177; 438609, 2442314; 448441, 2442549; 448587, 2442486; 448948, 2441273; 448948, 2441264; 438392, 2442294; 438219, 2442244; 448455, 2442534; 448589, 2443224; 448946, 2441259; 448920, 2441333; 438238, 2442248; 438254, 2442248; 448474, 2442530; 448488, 2442531; 448677, 2442140; 441868, 2446401; 438305, 2442256; 438355, 2442265; 448505, 2442534; 448515, 2442533; 448673, 2442209; 448671, 2442202; 438523, 2442310; 438376, 2442278; 448530, 2442527; 448536, 2442523; 448674, 2442187; 448680, 2442169; 437745, 2441950; 438418, 2442311; 448449, 2442536; 448502, 2443743; 448684, 2442226; 448682, 2442148;
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00132 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations 19091
448692, 2442233; 448675, 2442123; 440136, 2448537; 440120, 2448633; 438422, 2451414; 438481, 2451188; 448677, 2442115; 448683, 2442101; 440125, 2448690; 439875, 2448932; 448609, 2443974; 438669, 2452384; 448694, 2442089; 448710, 2442077; 440112, 2448732; 440451, 2447620; 438605, 2452379; 438540, 2452374; 448718, 2442069; 448684, 2442157; 440073, 2448762; 440036, 2448815; 438510, 2452340; 438449, 2452330; 448722, 2442303; 448677, 2442356; 440000, 2448878; 439982, 2448899; 438761, 2452013; 438490, 2452605; 448682, 2442350; 448697, 2442342; 439961, 2448915; 439941, 2448924; 438816, 2452396; 448591, 2444072; 448711, 2442341; 448721, 2442331; 440121, 2448718; 441363, 2447030; 448566, 2444172; 448548, 2444233; 448678, 2442221; 448723, 2442309; 440383, 2447794; 441405, 2446869; 448510, 2444279; 448464, 2444284; 448736, 2442055; 448718, 2442295; 441402, 2446899; 441403, 2446972; 448299, 2444289; 438431, 2452414; 448712, 2442283; 448707, 2442267; 441399, 2446995; 441455, 2446804; 439138, 2452428; 438670, 2451754; 448706, 2442257; 448705, 2442250; 441373, 2447026; 441476, 2446797; 438936, 2452213; 438977, 2452232; 448699, 2442238; 448724, 2442320; 441317, 2447043; 441283, 2447083; 438979, 2452233; 439031, 2452285; 448915, 2441796; 448850, 2441844; 441268, 2447104; 441240, 2447171; 439037, 2452297; 438716, 2452393; 448877, 2441825; 448884, 2441820; 441231, 2447186; 441219, 2447195; 439083, 2452342; 438779, 2452391; 448890, 2441818; 448892, 2441817; 441398, 2446997; 441674, 2446682; 439171, 2452514; 439201, 2452565; 448723, 2442061; 448910, 2441807; 448141, 2444294; 448986, 2441677; 439114, 2452513; 438954, 2452430; 448820, 2441871; 448913, 2441774; 441864, 2446424; 441847, 2446451; 438851, 2452395; 438833, 2452090; 448914, 2441760; 448913, 2441753; 441836, 2446475; 441434, 2446820; 439061, 2452327; 439044, 2449631; 448915, 2441738; 448925, 2441722; 441829, 2446505; 441148, 2447188; 438944, 2449813; 439167, 2449414; 448957, 2441700; 448900, 2441814; 441648, 2446705; 441620, 2446723; 439146, 2449435; 439114, 2449463; 448787, 2441967; 448939, 2441710; 441584, 2446741; 441549, 2446752; 439102, 2449480; 439220, 2449318; 448746, 2442051; 448755, 2442041; 441532, 2446763; 441521, 2446777; 439065, 2449586; 439230, 2449287; 448764, 2442029; 448768, 2442019; 441829, 2446501; 440674, 2447485; 439037, 2449642; 439025, 2449671; 448773, 2442013; 448840, 2441852; 440710, 2447368; 440699, 2447389; 439016, 2449687; 438999, 2449702; 448781, 2441990; 448831, 2441859; 440693, 2447407; 440695, 2447430; 438974, 2449738; 438965, 2449767; 448789, 2441938; 448803, 2441914; 440703, 2447452; 441201, 2447195; 439076, 2449548; 439382, 2449107; 448813, 2441900; 448814, 2441894; 440693, 2447475; 440800, 2447339; 439508, 2448984; 439451, 2449000; 448817, 2441884; 448728, 2442058; 440599, 2447501; 440579, 2447511; 439437, 2449023; 438680, 2451783; 448777, 2442002; 440375, 2448361; 440540, 2447539; 440487, 2447571; 439433, 2449078; 439200, 2449362; 440198, 2448467; 440421, 2448239; 440468, 2447593; 440124, 2448663; 440415, 2448290; 440416, 2448314; 440703, 2447461; 440941, 2447230; 439399, 2449097; 439421, 2449088; 440411, 2448336; 440401, 2448191; 440413, 2447711; 441133, 2447183; 439361, 2449126; 439330, 2449145; 440391, 2448353; 440384, 2448138; 441113, 2447170; 441095, 2447154; 439307, 2449169; 439277, 2449220; 440350, 2448395; 440331, 2448411; 441083, 2447147; 441058, 2447153; 439260, 2449242; 439244, 2449261; 440307, 2448418; 440254, 2448428; 440722, 2447354; 440969, 2447210; 438425, 2451047; 438554, 2450559; 440237, 2448434; 439526, 2448944; 440740, 2447346; 440888, 2447250; 438737, 2450311; 438736, 2450325; 440402, 2448352; 440409, 2447991; 440873, 2447265; 440865, 2447286; 438731, 2450342; 438715, 2450373; 440377, 2447819; 440378, 2447845; 440858, 2447311; 440842, 2447328; 438690, 2450392; 438621, 2450415; 440384, 2447871; 440395, 2447896; 441172, 2447190; 441039, 2447168; 438732, 2450286; 438578, 2450438; 440436, 2447941; 440413, 2448216; 438599, 2451708; 438434, 2451069; 438501, 2450796; 438488, 2450686; 440426, 2447974; 440190, 2448485; 438440, 2451600; 438425, 2451652; 438472, 2450910; 438435, 2450985; 440343, 2448005; 440329, 2448016; 438429, 2451670; 438442, 2451682; 438427, 2450964; 438919, 2449853; 440325, 2448033; 440331, 2448061; 438419, 2451509; 438529, 2451692; 439437, 2449066; 438581, 2450423; 440341, 2448084; 440374, 2448123; 438410, 2451464; 438657, 2451738; 438816, 2450028; 438717, 2450241; 440435, 2447959; 439678, 2448950; 439516, 2448971; 438675, 2451766; 438894, 2449879; 438884, 2449918; 440218, 2448446; 439853, 2448941; 440125, 2448578; 438680, 2451858; 438904, 2449863; 438831, 2450010; 439830, 2448945; 439788, 2448929; 438715, 2451908; 438484, 2451690; 438850, 2449982; 438791, 2450036; 439761, 2448926; 439900, 2448928; 438467, 2451228; 438455, 2451089; 438765, 2450051; 438744, 2450081; 439697, 2448941; 439922, 2448928; 438463, 2451098; 438475, 2451113; 438730, 2450109; 438717, 2450158; 439656, 2448949; 439633, 2448940; 438484, 2451141; 438486, 2451163; 438716, 2450162; 438713, 2450206. 439611, 2448928; 439578, 2448906; 438435, 2451571; 438472, 2451209; (ii) Map of Unit 4–Montane Wet for 439553, 2448909; 439539, 2448922; 438888, 2452163; 438472, 2451261; Hawaiian picture-wing fly (Drosophila 439733, 2448930; 440089, 2448747; 438481, 2451287; 438485, 2451346; sharpi) follows: 440179, 2448496; 440157, 2448511; 438478, 2451359; 438454, 2451380; BILLING CODE 4310–55–S
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00133 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19092 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00134 Fmt 4701 Sfmt 4725 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES ER13AP10.032 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations 19093
(10) Unit 5–Montane Wet, Kauai 2449278; 434833, 2449278; 434833, 2449863; 434137, 2449869; 434124, County, Hawaii. 2449280; 434833, 2449281; 434872, 2449948; 434074, 2449972; 433461, (i) Unit 5–Montane Wet consists of 2449294; 434881, 2449297; 434884, 2449623; 433339, 2449381; 435234, 789.9 ac (319.7 ha) and includes land 2449298; 435010, 2449343; 434899, 2449384; 433589, 2449323; 433725, bounded by the following UTM Zone 4, 2449305; 433903, 2449882; 435011, 2448994; 433545, 2449136; 433389, NAD83 coordinates (E, N): 433436, 2449352; 435010, 2449343; 435005, 2449256; 433567, 2449260; 433588, 2449707; 433445, 2449707; 433444, 2449310; 434948, 2449300; 434908, 2449244; 433880, 2448827; 433612, 2449707; 433443, 2449707; 433458, 2449290; 434908, 2449290; 434890, 2449262; 433525, 2449415; 433567, 2449707; 433436, 2449707; 433426, 2449251; 434872, 2449246; 434848, 2449398; 433546, 2449412; 434627, 2449707; 433408, 2449708; 433429, 2449239; 434844, 2449248; 434034, 2447088; 433448, 2449426; 435236, 2449741; 433493, 2449765; 433633, 2449950; 434026, 2449951; 433969, 2449347; 433368, 2449293; 433599, 2449724; 433742, 2449724; 433467, 2449958; 434898, 2449304; 435183, 2449252; 434202, 2447345; 433367, 2449787; 433460, 2449707; 433468, 2449401; 434713, 2447038; 434738, 2449352; 434073, 2448685; 434357, 2449706; 433484, 2449694; 433414, 2447045; 434738, 2447030; 434795, 2447229; 434073, 2447500; 434086, 2449628; 433461, 2449623; 433457, 2447069; 434994, 2447085; 435093, 2447693; 434163, 2447783; 434254, 2449622; 433339, 2449600; 433440, 2447245; 435290, 2447449; 435295, 2449604; 433437, 2449592; 433426, 2447440; 435360, 2447538; 435282, 2447886; 434318, 2448182; 434318, 2449556; 433419, 2449599; 433831, 2448685; 435266, 2448909; 435236, 2448298; 434292, 2448479; 434279, 2449767; 434991, 2449344; 433401, 2449351; 434686, 2447020; 435232, 2447951; 434486, 2447126; 434228, 2449697; 433480, 2449629; 434938, 2449399; 435272, 2448835; 435080, 2448620. 2449321; 433313, 2449484; 433455, 2449407; 434920, 2449394; 434752, (ii) Map of Unit 5–Montane Wet for 2449620; 434842, 2449253; 434839, 2449405; 434498, 2449522; 434338, Hawaiian picture-wing fly (Drosophila 2449258; 434834, 2449277; 434833, 2449660; 434208, 2449767; 434141, sharpi) follows:
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00135 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19094 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00136 Fmt 4701 Sfmt 4725 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES ER13AP10.033 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations 19095
(11) Unit 6–Montane Wet, Kauai 2447795; 447961, 2448628; 448037, 2449443; 448964, 2449425; 448952, County, Hawaii. 2448780; 448088, 2448897; 448122, 2449316; 448954, 2449143; 448881, (i) Unit 6–Montane Wet consists of 2449037; 448119, 2449134; 448056, 2447609; 448987, 2448959; 448980, 413.5 ac (167.3 ha) and includes land 2449368; 448099, 2449454; 448242, 2446980; 448979, 2446983; 448577, bounded by the following UTM Zone 4, 2449457; 448328, 2449449; 448440, 2449143; 448980, 2446982; 448981, NAD83 coordinates (E, N): 448516, 2449296; 448382, 2449406; 448887, 2446981; 449105, 2447827; 449087, 2447525; 447976, 2448470; 448042, 2447191; 448091, 2449266; 448610, 2447916; 449044, 2448132; 449032, 2448338; 448133, 2448200; 448235, 2449255; 448931, 2447092; 448511, 2448326; 449045, 2448506; 449040, 2448042; 448834, 2447273; 448288, 2449199; 448623, 2449141; 448641, 2448659; 449012, 2448822. 2447915; 448412, 2447653; 448669, 2449184; 448593, 2449298; 448613, (ii) Map of Unit 6–Montane Wet for 2447406; 447943, 2448562; 448763, 2449357; 448702, 2449395; 448812, Hawaiian picture-wing fly (Drosophila 2447342; 448059, 2449434; 448321, 2449420; 448906, 2449440; 448959, sharpi) follows:
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00137 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19096 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
BILLING CODE 4310–55–C
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00138 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES ER13AP10.034 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations 19097
* * * * * (a)(1)(ccxxxviii) as paragraphs (a)(1)(liv) (a)(1)(cclxv) as paragraphs (a)(1)(cii) ■ 5. Amend § 17.99 as follows: through (a)(1)(ccxxxix); through (a)(1)(cclxxii); ■ a. By revising the introductory text of ■ v. By adding a new paragraph ■ pp. By adding new paragraphs paragraph (a)(1) to read as set forth (a)(1)(liii) to read as set forth below; (a)(1)(xcv), (a)(1)(xcvi), (a)(1)(xcvii), below; ■ w. By redesignating newly designated (a)(1)(xcviii), (a)(1)(xcix), (a)(1)(c), and ■ b. By revising paragraph (a)(1)(i) as set paragraphs (a)(1)(lvii) through (a)(1)(ci) to read as set forth below; forth below; (a)(1)(ccxxxix) as paragraphs (a)(1)(lviii) ■ qq. By redesignating newly designated ■ c. By redesignating paragraphs through (a)(1)(ccxl); paragraphs (a)(1)(ciii) through (a)(1)(vi) through (a)(1)(ccxviii) as ■ x. By adding a new paragraph (a)(1)(cclxxii) as paragraphs (a)(1)(civ) paragraphs (a)(1)(viii) through (a)(1)(lvii) to read as set forth below; through (a)(1)(cclxxiii); (a)(1)(ccxx); ■ y. By redesignating newly designated ■ rr. By adding a new paragraph ■ d. By adding new paragraphs (a)(1)(vi) paragraphs (a)(1)(lix) through (a)(1)(ciii) to read as set forth below; and (a)(1)(vii) to read as set forth below; (a)(1)(ccxl) as paragraphs (a)(1)(lxv) ■ ss. By redesignating newly designated ■ e. By redesignating newly designated through (a)(1)(ccxlvi); paragraphs (a)(1)(cv) through paragraphs (a)(1)(ix) through (a)(1)(ccxx) ■ z. By adding new paragraphs (a)(1)(cclxxiii) as paragraphs (a)(1)(cvii) as paragraphs (a)(1)(x) through (a)(1)(lix), (a)(1)(lx), (a)(1)(lxi), through (a)(1)(cclxxv); (a)(1)(ccxxi); (a)(1)(lxii), (a)(1)(lxiii), and (a)(1)(lxiv) to ■ tt. By adding new paragraphs ■ f. By adding new paragraph (a)(1)(ix) read as set forth below; (a)(1)(cv) and (a)(1)(cvi) to read as set to read as set forth below; ■ aa. By redesignating newly designated forth below; ■ ■ g. By redesignating newly designated paragraphs (a)(1)(lxvi) through uu. By redesignating newly paragraphs (a)(1)(xvi) through (a)(1)(ccxlvi) as paragraphs (a)(1)(lxx) designated paragraphs (a)(1)(cviii) (a)(1)(ccxxi) as paragraphs (a)(1)(xix) through (a)(1)(ccl); through (a)(1)(cclxxv) as paragraphs through (a)(1)(ccxxiv); ■ (a)(1)(cxii) through (a)(1)(cclxxix); bb.By adding new paragraphs ■ ■ h. By adding new paragraphs (a)(1)(lxvi), (a)(1)(lxvii), (a)(1)(lxviii), vv. By adding new paragraphs (a)(1)(xvi), (a)(1)(xvii), and (a)(1)(xviii) and (a)(1)(lxix) to read as set forth (a)(1)(cviii), (a)(1)(cix), (a)(1)(cx), and (a)(1)(cxi) to read as set forth below; to read as set forth below; below; ■ ww. By redesignating newly ■ i. By redesignating newly designated ■ cc. By redesignating newly designated designated paragraphs (a)(1)(cxiii) paragraphs (a)(1)(xxv) through paragraphs (a)(1)(lxxiii) through through (a)(1)(cclxxix) as paragraphs (a)(1)(ccxxiv) as paragraphs (a)(1)(xxviii) (a)(1)(ccl) as paragraphs (a)(1)(lxxix) through (a)(1)(ccxxvii); (a)(1)(cxvii) through (a)(1)(cclxxxiii); through (a)(1)(cclvi); ■ xx. By adding new paragraphs ■ j. By adding new paragraphs ■ dd. By adding new paragraphs (a)(1)(cxiii), (a)(1)(cxiv), (a)(1)(cxv), and (a)(1)(xxv), (a)(1)(xxvi), and (a)(1)(xxvii) (a)(1)(lxxiii), (a)(lxxiv), (a)(1)(lxxv), (a)(1)(cxvi) to read as set forth below; to read as set forth below; (a)(1)(lxxvi), (a)(1)(lxxvii), and ■ yy. By redesignating newly designated ■ k. By redesignating newly designated (a)(1)(lxxviii) to read as set forth below; paragraphs (a)(1)(cxxx) through paragraphs (a)(1)(xxix) through ■ ee. By redesignating newly designated (a)(1)(cclxxxiii) as paragraphs (a)(1)(ccxxvii) as paragraphs (a)(1)(xxx) paragraphs (a)(1)(lxxx) through (a)(1)(cxxxi) through (a)(1)(cclxxxiv); through (a)(1)(ccxxviii); (a)(1)(cclvi) as paragraphs (a)(1)(lxxxii) ■ ■ zz. By adding a new paragraph l. By adding a new paragraph through (a)(1)(cclviii); (a)(1)(cxxx) to read as set forth below; (a)(1)(xxix) to read as set forth below; ■ ff. By adding new paragraphs ■ aaa. By redesignating newly ■ m. By redesignating newly designated (a)(1)(lxxx) and (a)(1)(lxxxi) to read as designated paragraphs (a)(1)(cxxxiii) paragraphs (a)(1)(xxxiv) through set forth below; through (a)(1)(cclxxxiv) as paragraphs (a)(1)(ccxxviii) as paragraphs ■ gg. By redesignating newly designated (a)(1)(cxxxiv) through (a)(1)(cclxxxv); (a)(1)(xxxviii) through (a)(1)(ccxxxii); paragraphs (a)(1)(lxxxiii) through ■ bbb. By adding a new paragraph ■ n. By adding new paragraphs (a)(1)(cclviii) as paragraphs (a)(1)(cxxxiii) to read as set forth below; (a)(1)(xxxiv), (a)(1)(xxxv), (a)(1)(xxxvi), (a)(1)(lxxxiv) through (a)(1)(cclix); ■ ccc. By redesignating newly and (a)(1)(xxxvii) to read as set forth ■ hh. By adding a new paragraph designated paragraphs (a)(1)(cxxxv) below; (a)(1)(lxxxiii) to read as set forth below; through (a)(1)(cclxxxv) as paragraphs ■ o. By redesignating newly designated ■ ii. By redesignating newly designated (a)(1)(cxxxvii) through (a)(1)(cclxxxvii); paragraphs (a)(1)(xxxix) through paragraphs (a)(1)(lxxxvi) through ■ ddd. By adding new paragraphs (a)(1)(ccxxxii) as paragraphs (a)(1)(xli) (a)(1)(cclix) as paragraphs (a)(1)(xc) (a)(1)(cxxxv) and (a)(1)(cxxxvi) to read through (a)(1)(ccxxxiv); through (a)(1)(cclxiii); as set forth below; ■ p. By adding new paragraphs ■ jj. By adding new paragraphs ■ eee. By redesignating newly (a)(1)(xxxix) and (a)(1)(xl) to read as set (a)(1)(lxxxvi), (a)(1)(lxxxvii), designated paragraphs (a)(1)(cxl) forth below; (a)(1)(lxxxviii), and (a)(1)(lxxxix) to read through (a)(1)(cclxxxvii) as paragraphs ■ q. By redesignating newly designated as set forth below; (a)(1)(cxlix) through (a)(1)(ccxcvi); paragraphs (a)(1)(xlii) through ■ kk. By redesignating newly designated ■ fff. By adding new paragraphs (a)(1)(ccxxxiv) as paragraphs (a)(1)(xliii) paragraphs (a)(1)(xci) through (a)(1)(cxl), (a)(1)(cxli), (a)(1)(cxlii), through (a)(1)(ccxxxv); (a)(1)(cclxiii) as paragraphs (a)(1)(xcii) (a)(1)(cxliii), (a)(1)(cxliv), (a)(1)(cxlv), ■ r. By adding a new paragraph through (a)(1)(cclxiv); (a)(1)(cxlvi), (a)(1)(cxlvii), and (a)(1)(xlii) to read as set forth below; ■ ll. By adding a new paragraph (a)(1)(cxlviii) to read as set forth below; ■ s. By redesignating newly designated (a)(1)(xci) to read as set forth below; ■ ggg. By redesignating newly paragraphs (a)(1)(xlviii) through ■ mm. By redesignating newly designated paragraphs (a)(1)(cl) through (a)(1)(ccxxxv) as paragraphs (a)(1)(li) designated paragraphs (a)(1)(xciii) (a)(1)(ccxcvi) as paragraphs (a)(1)(cliv) through (a)(1)(ccxxxviii); through (a)(1)(cclxiv) as paragraphs through (a)(1)(ccc); ■ t. By adding new paragraphs (a)(1)(xciv) through (a)(1)(cclxv); ■ hhh. By adding new paragraphs (a)(1)(xlviii), (a)(1)(xlix), and (a)(1)(l) to ■ nn. By adding a new paragraph (a)(1)(cl), (a)(1)(cli), (a)(1)(clii), and read as set forth below; (a)(1)(xciii) to read as set forth below; (a)(1)(cliii) to read as set forth below; ■ u. By redesignating newly designated ■ oo. By redesignating newly designated ■ iii. By redesignating newly designated paragraphs (a)(1)(liii) through paragraphs (a)(1)(xcv) through paragraphs (a)(1)(clxiii) through
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00139 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19098 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
(a)(1)(ccc) as paragraphs (a)(1)(clxvi) through (a)(1)(cccxxv) as paragraphs (a)(1)(ccclix), (a)(1)(ccclx), (a)(1)(ccclxi), through (a)(1)(ccciii); (a)(1)(ccli) through (a)(1)(cccxxviii); (a)(1)(ccclxii), (a)(1)(ccclxiii), ■ jjj. By adding new paragraphs ■ dddd. By adding new paragraphs (a)(1)(ccclxiv), (a)(1)(ccclxv), (a)(1)(clxiii), (a)(1)(clxiv), and (a)(1)(ccxlviii), (a)(1)(ccxlix), and (a)(1)(ccclxvi), (a)(1)(ccclxvii), (a)(1)(clxv) to read as set forth below; (a)(1)(ccl) to read as set forth below; (a)(1)(ccclxviii), (a)(1)(ccclxix), ■ kkk. By redesignating newly ■ eeee. By redesignating newly (a)(1)(ccclxx), (a)(1)(ccclxxi), designated paragraphs (a)(1)(clxxii) designated paragraphs (a)(1)(ccliii) (a)(1)(ccclxxii), (a)(1)(ccclxxiii), through (a)(1)(ccciii) as paragraphs through (a)(1)(cccxxviii) as paragraphs (a)(1)(ccclxxiv), (a)(1)(ccclxxv), (a)(1)(clxxiii) through (a)(1)(ccciv); (a)(1)(ccliv) through (a)(1)(cccxxix); (a)(1)(ccclxxvi), (a)(1)(ccclxxvii), ■ lll. By adding a new paragraph ■ ffff. By adding a new paragraph (a)(1)(ccclxxviii), (a)(1)(ccclxxix), (a)(1)(clxxii) to read as set forth below; (a)(1)(ccliii) to read as set forth below; (a)(1)(ccclxxx), (a)(1)(ccclxxxi), ■ mmm. By redesignating newly ■ gggg. By redesignating newly (a)(1)(ccclxxxii), (a)(1)(ccclxxxiii), designated paragraphs (a)(1)(clxxvi) designated paragraphs (a)(1)(cclviii) (a)(1)(ccclxxxiv), (a)(1)(ccclxxxv), through (a)(1)(ccciv) as paragraphs through (a)(1)(cccxxix) as paragraphs (a)(1)(ccclxxxvi), (a)(1)(ccclxxxvii), (a)(1)(clxxxi) through (a)(1)(cccix); (a)(1)(cclx) through (a)(1)(cccxxxi); (a)(1)(ccclxxxviii), (a)(1)(ccclxxxix), ■ nnn. By adding new paragraphs ■ hhhh. By adding new paragraphs (a)(1)(cccxc), (a)(1)(cccxci), (a)(1)(clxxvi), (a)(1)(clxxvii), (a)(1)(cclviii) and (a)(1)(cclix) to read as (a)(1)(cccxcii), (a)(1)(cccxciii), (a)(1)(clxxviii), (a)(1)(clxxix), and set forth below; (a)(1)(cccxciv), (a)(1)(cccxcv), (a)(1)(clxxx) to read as set forth below; ■ iiii. By redesignating newly (a)(1)(cccxcvi), (a)(1)(cccxcvii), ■ ooo. By redesignating newly designated paragraphs (a)(1)(cclxvi) (a)(1)(cccxcviii), (a)(1)(cccxcix), designated paragraphs (a)(1)(clxxxiv) through (a)(1)(cccxxxi) as paragraphs (a)(1)(cd), (a)(1)(cdi), (a)(1)(cdii), through (a)(1)(cccix) as paragraphs (a)(1)(cclxviii) through (a)(1)(cccxxxiii); (a)(1)(cdiii), (a)(1)(cdiv), (a)(1)(cdv), (a)(1)(clxxxvi) through (a)(1)(cccxi); ■ jjjj. By adding new paragraphs (a)(1)(cdvi), (a)(1)(cdvii), (a)(1)(cdviii), ■ ppp. By adding new paragraphs (a)(1)(cclxvi) and (a)(1)(cclxvii) to read (a)(1)(cdix), (a)(1)(cdx), (a)(1)(cdxi), (a)(1)(clxxxiv) and (a)(1)(clxxxv) to read as set forth below; (a)(1)(cdxii), (a)(1)(cdxiii), (a)(1)(cdxiv), ■ as set forth below; kkkk. By redesignating newly (a)(1)(cdxv), (a)(1)(cdxvi), (a)(1)(cdxvii), ■ qqq. By redesignating newly designated paragraphs (a)(1)(cclxxii) (a)(1)(cdxviii), (a)(1)(cdxix), (a)(1)(cdxx), designated paragraphs (a)(1)(cxcix) through (a)(1)(cccxxxiii) as paragraphs (a)(1)(cdxxi), (a)(1)(cdxxii), through (a)(1)(cccxi) as paragraphs (a)(1)(cclxxiii) through (a)(1)(cccxxxiv); (a)(1)(cdxxiii), (a)(1)(cdxxiv), ■ (a)(1)(cc) through (a)(1)(cccxii); llll. By adding a new paragraph (a)(1)(cdxxv), (a)(1)(cdxxvi), ■ rrr. By adding a new paragraph (a)(1)(cclxxii) to read as set forth below; ■ (a)(1)(cdxxvii), (a)(1)(cdxxviii), (a)(1)(cxcix) to read as set forth below; mmmm. By redesignating newly (a)(1)(cdxxix), (a)(1)(cdxxx), ■ sss. By redesignating newly designated paragraphs (a)(1)(cclxxvii) (a)(1)(cdxxxi), (a)(1)(cdxxxii), designated paragraphs (a)(1)(ccxvi) through (a)(1)(cccxxxiv) as paragraphs (a)(1)(cdxxxiii), (a)(1)(cdxxxiv), through (a)(1)(cccxii) as paragraphs (a)(1)(cclxxxii) through (a)(1)(cccxxxix); (a)(1)(cdxxxv), (a)(1)(cdxxxvi), ■ nnnn. By adding new paragraphs (a)(1)(ccxviii) through (a)(1)(cccxiv); (a)(1)(cdxxxvii), (a)(1)(cdxxxviii), ■ (a)(1)(cclxxvii), (a)(1)(cclxxviii), ttt. By adding new paragraphs (a)(1)(cdxxxix), (a)(1)(cdxl), (a)(1)(cdxli), (a)(1)(cclxxix), (a)(1)(cclxxx), and (a)(1)(ccxvi) and (a)(1)(ccxvii) to read as (a)(1)(cdxlii), (a)(1)(cdxliii), (a)(1)(cclxxxi) to read as set forth below; set forth below; (a)(1)(cdxliv), (a)(1)(cdxlv), ■ uuu. By redesignating newly ■ oooo. By redesignating newly (a)(1)(cdxlvi), (a)(1)(cdxlvii), designated paragraphs (a)(1)(ccxxii) designated paragraphs (a)(1)(ccxc) (a)(1)(cdxlviii), (a)(1)(cdxlix), (a)(1)(cdl), through (a)(1)(cccxiv) as paragraphs through (a)(1)(cccxxxix) as paragraphs (a)(1)(cdli), (a)(1)(cdlii), (a)(1)(cdliii), (a)(1)(ccxxvi) through (a)(1)(cccxviii); (a)(1)(ccxciii) through (a)(1)(cccxlii); (a)(1)(cdliv), (a)(1)(cdlv), (a)(1)(cdlvi), ■ vvv. By adding new paragraphs ■ pppp. By adding new paragraphs (a)(1)(cdlvii), and (a)(1)(cdlviii), to read (a)(1)(ccxxii), (a)(1)(ccxxiii), (a)(1)(ccxc), (a)(1)(ccxci), and as set forth below; (a)(1)(ccxxiv), and (a)(1)(ccxxv) to read (a)(1)(ccxcii) to read as set forth below; ■ wwww. By amending the table at as set forth below; ■ qqqq. By redesignating newly newly designated paragraph (a)(1)(cdlix) ■ www. By redesignating newly designated paragraphs (a)(1)(cccix) by adding the following entries, first by designated paragraphs (a)(1)(ccxxix) through (a)(1)(cccxlii) as paragraphs unit number and then alphabetically by through (a)(1)(cccxviii) as paragraphs (a)(1)(cccx) through (a)(1)(cccxliii); species name, in the same order as these (a)(1)(ccxxx) through (a)(1)(cccxix); ■ rrrr By adding a new paragraph units are presented in the preceding ■ xxx. By adding a new paragraph (a)(1)(cccix) to read as set forth below; subparagraphs of this section, as set (a)(1)(ccxxix) to read as set forth below; ■ ssss By redesignating newly ■ yyy. By redesignating newly designated paragraphs (a)(1)(cccxxix) forth below: designated paragraphs (a)(1)(ccxxxv) through (a)(1)(cccxliii) as paragraphs New entry: (a)(1)(cccxxxvii) through (a)(1)(cccli); through (a)(1)(cccxix) as paragraphs Kauai 4–Chamaesyce remyi var. (a)(1)(ccxl) through (a)(1)(cccxxiv); ■ tttt By adding new paragraphs ■ kauaiensis–a zzz. By adding new paragraphs (a)(1)(cccxxix), (a)(1)(cccxxx), Kauai 4–Chamaesyce remyi var. (a)(1)(ccxxxv), (a)(1)(ccxxxvi), (a)(1)(cccxxxi), (a)(1)(cccxxxii), remyi–a (a)(1)(ccxxxvii), (a)(1)(ccxxxviii), and (a)(1)(cccxxxiii), (a)(1)(cccxxxiv), Kauai 4–Cyanea dolichopoda–a (a)(1)(ccxxxix) to read as set forth below; (a)(1)(cccxxxv), and (a)(1)(cccxxxvi) to Kauai 4–Cyrtandra oenobarba–a ■ aaaa. By redesignating newly read as set forth below; Kauai 4–Cyrtandra paliku–a designated paragraphs (a)(1)(ccxli) ■ uuuu. By redesignating newly Kauai 4–Dubautia plantaginea ssp. through (a)(1)(cccxxiv) as paragraphs designated paragraph (a)(1)(cccli) as magnifolia–a (a)(1)(ccxlii) through (a)(1)(cccxxv); paragraph (a)(1)(cdlix); Kauai 4–Lysimachia iniki–a ■ bbbb. By adding a new paragraph ■ vvvv. By adding new paragraphs Kauai 4–Lysimachia pendens–a (a)(1)(ccxli) to read as set forth below; (a)(1)(cccli), (a)(1)(ccclii), (a)(1)(cccliii), Kauai 4–Lysimachia venosa–a ■ cccc. By redesignating newly (a)(1)(cccliv), (a)(1)(ccclv), (a)(1)(ccclvi), Kauai 4–Platydesma rostrata–a designated paragraphs (a)(1)(ccxlviii) (a)(1)(ccclvii), (a)(1)(ccclviii), Kauai 7–Canavalia napaliensis–a
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Kauai 7–Chamaesyce eleanoriae–a Kauai 11–Chamaesyce remyi var. Kauai 11–Tetraplasandra Kauai 7–Chamaesyce remyi var. kauaiensis–d bisattenuata–c remyi–b Kauai 11–Chamaesyce remyi var. Kauai 11–Tetraplasandra Kauai 7–Charpentiera densiflora–a kauaiensis–e bisattenuata–d Kauai 7–Doryopteris angelica–a Kauai 11–Chamaesyce remyi var. Kauai 11–Tetraplasandra flynnii–c Kauai 7–Dubautia kenwoodii–a remyi–f Kauai 11–Tetraplasandra flynnii–d Kauai 7–Labordia helleri–a Kauai 11–Chamaesyce remyi var. Kauai 11–Tetraplasandra flynnii–e Kauai 7–Pittosporum napaliense–a remyi–g Kauai 18–Chamaesyce remyi var. Kauai 7–Platydesma rostrata–b Kauai 11–Chamaesyce remyi var. kauaiensis–f Kauai 7–Psychotria hobdyi–a remyi–h Kauai 18–Chamaesyce remyi var. Kauai 7–Tetraplasandra Kauai 11–Chamaesyce remyi var. remyi–k bisattenuata–a remyi–i Kauai 18–Cyanea dolichopoda–d Kauai 10–Astelia waialealae–a Kauai 11–Chamaesyce remyi var. Kauai 18–Cyrtandra oenobarba–f Kauai 10–Chamaesyce remyi var. remyi–j Kauai 18–Cyrtandra paliku–d kauaiensis–b Kauai 11–Charpentiera densiflora–c Kauai 18–Dubautia plantaginea ssp. Kauai 10–Chamaesyce remyi var. Kauai 11–Charpentiera densiflora–d magnifolia–d kauaiensis–c Kauai 11–Cyanea dolichopoda–c Kauai 18–Lysimachia iniki–d Kauai 10–Chamaesyce remyi var. Kauai 11–Cyanea eleeleensis–b Kauai 18–Lysimachia pendens–d remyi–c Kauai 11–Cyanea kolekoleensis–b Kauai 18–Lysimachia venosa–d Kauai 10–Chamaesyce remyi var. Kauai 11–Cyanea kuhihewa–b Kauai 18–Platydesma rostrata–k remyi–d Kauai 11–Cyrtandra oenobarba–d Kauai 19–Chamaesyce remyi var. Kauai 10–Chamaesyce remyi var. Kauai 11–Cyrtandra oenobarba–e kauaiensis–g remyi–e Kauai 11–Cyrtandra paliku–c Kauai 19–Chamaesyce remyi var. Kauai 10–Charpentiera densiflora–b Kauai 11–Diellia mannii–a remyi–l Kauai 10–Cyanea dolichopoda–b Kauai 11–Doryopteris angelica–b Kauai 19–Cyanea dolichopoda–e Kauai 10–Cyanea eleeleensis–a Kauai 11–Dryopteris crinalis var. Kauai 19–Cyrtandra oenobarba–g Kauai 10–Cyanea kolekoleensis–a podosorus–b Kauai 19–Cyrtandra paliku–e Kauai 10–Cyanea kuhihewa–a Kauai 11–Dubautia imbricata ssp. Kauai 19–Dubautia plantaginea ssp. Kauai 10–Cyrtandra oenobarba–b imbricata–b magnifolia–e Kauai 10–Cyrtandra oenobarba–c Kauai 11–Dubautia kalalauensis–b Kauai 19–Lysimachia iniki–e Kauai 10–Cyrtandra paliku–b Kauai 11–Dubautia kenwoodii–b Kauai 19–Lysimachia pendens–e Kauai 10–Dryopteris crinalis var. Kauai 11–Dubautia plantaginea ssp. Kauai 19–Lysimachia venosa–e podosorus–a magnifolia–c Kauai 19–Platydesma rostrata–l Kauai 10–Dubautia imbricata ssp. Kauai 11–Dubautia waialealae–b Kauai 20–Chamaesyce remyi var. imbricata–a Kauai 11–Geranium kauaiense–b kauaiensis–h Kauai 10–Dubautia kalalauensis–a Kauai 11–Keysseria erici–b Kauai 20–Chamaesyce remyi var. Kauai 10–Dubautia plantaginea ssp. Kauai 11–Keysseria helenae–b remyi–m magnifolia–b Kauai 11–Labordia helleri–d Kauai 20–Charpentiera densiflora–e Kauai 10–Dubautia waialealae–a Kauai 11–Labordia helleri–e Kauai 20–Cyanea eleeleensis–c Kauai 10–Geranium kauaiense–a Kauai 11–Labordia helleri–f Kauai 20–Cyanea kolekoleensis–c Kauai 10–Keysseria erici–a Kauai 11–Labordia helleri–g Kauai 20–Cyanea kuhihewa–c Kauai 10–Keysseria helenae–a Kauai 11–Labordia pumila–b Kauai 20–Cyrtandra oenobarba–h Kauai 10–Labordia helleri–b Kauai 11–Lysimachia daphnoides–b Kauai 20–Dubautia imbricata ssp. Kauai 10–Labordia helleri–c Kauai 11–Lysimachia iniki–c imbricata–c Kauai 10–Labordia pumila–a Kauai 11–Lysimachia pendens–c Kauai 20–Labordia helleri–h Kauai 10–Lysimachia daphnoides–a Kauai 11–Lysimachia scopulensis–a Kauai 20–Melicope paniculata–c Kauai 10–Lysimachia iniki–b Kauai 11–Lysimachia venosa–c Kauai 20–Melicope puberula–e Kauai 10–Lysimachia pendens–b Kauai 11–Melicope degeneri–b Kauai 20–Phyllostegia renovans–e Kauai 10–Lysimachia venosa–b Kauai 11–Melicope paniculata–b Kauai 20–Platydesma rostrata–m Kauai 10–Melicope degeneri–a Kauai 11–Melicope puberula–c Kauai 20–Stenogyne kealiae–e Kauai 10–Melicope paniculata–a Kauai 11–Melicope puberula–d Kauai 20–Tetraplasandra Kauai 10–Melicope puberula–a Kauai 11–Myrsine knudsenii–a bisattenuata–e Kauai 10–Melicope puberula–b Kauai 11–Myrsine mezii–b Kauai 20–Tetraplasandra flynnii–f Kauai 10–Myrsine mezii–a Kauai 11–Myrsine mezii–c Kauai 21–Chamaesyce remyi var. Kauai 10–Phyllostegia renovans–a Kauai 11–Phyllostegia renovans–c remyi–n Kauai 10–Phyllostegia renovans–b Kauai 11–Phyllostegia renovans–d Kauai 21–Diellia mannii–b Kauai 10–Platydesma rostrata–c Kauai 11–Pittosporum napaliense–b Kauai 21–Labordia helleri–i Kauai 10–Platydesma rostrata–d Kauai 11–Platydesma rostrata–f Kauai 21–Myrsine knudsenii–b Kauai 10–Platydesma rostrata–e Kauai 11–Platydesma rostrata–g Kauai 21–Myrsine mezii–d Kauai 10–Psychotria grandiflora–a Kauai 11–Platydesma rostrata–h Kauai 21–Platydesma rostrata–n Kauai 10–Stenogyne kealiae–a Kauai 11–Platydesma rostrata–i Kauai 21–Psychotria grandiflora–d Kauai 10–Tetraplasandra Kauai 11–Platydesma rostrata–j Kauai 21–Stenogyne kealiae–f bisattenuata–b Kauai 11–Psychotria grandiflora–b Kauai 21–Tetraplasandra flynnii–g Kauai 10–Tetraplasandra flynnii–a Kauai 11–Psychotria grandiflora–c Kauai 22–Chamaesyce remyi var. Kauai 10–Tetraplasandra flynnii–b Kauai 11–Psychotria hobdyi–b remyi–o Kauai 11–Astelia waialealae–b Kauai 11–Schiedea attenuata–a Kauai 22–Diellia mannii–c Kauai 11–Canavalia napaliensis–b Kauai 11–Stenogyne kealiae–b Kauai 22–Labordia helleri–j Kauai 11–Chamaesyce eleanoriae–b Kauai 11–Stenogyne kealiae–c Kauai 22–Myrsine knudsenii–c Kauai 11–Chamaesyce eleanoriae–c Kauai 11–Stenogyne kealiae–d Kauai 22–Myrsine mezii–e
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Kauai 22–Platydesma rostrata–o Kauai 25–Myrsine mezii–h Family Gesneriaceae: Cyrtandra Kauai 22–Psychotria grandiflora–e Kauai 25–Phyllostegia renovans–h paliku Kauai 22–Stenogyne kealiae–g Kauai 25–Platydesma rostrata–r Family Lamiaceae: Phyllostegia Kauai 22–Tetraplasandra flynnii–h Kauai 25–Psychotria grandiflora–h renovans Kauai 23–Astelia waialealae–c Kauai 25–Tetraplasandra flynnii–k Family Lamiaceae: Stenogyne kealiae ■ Kauai 23–Chamaesyce remyi var. xxxx. By amending paragraph (b) as Family Loganiaceae: Labordia helleri remyi–p follows: Family Loganiaceae: Labordia pumila Kauai 23–Dryopteris crinalis var. ■ i. In paragraph (b)(1), by adding Family Myrsinaceae: Lysimachia podosorus–c ‘‘Family Amaranathaceae’’, ‘‘Family daphnoides Kauai 23–Dubautia kalalauensis–c Asteliaceae’’, and ‘‘Family Kauai 23–Dubautia waialealae–c Pittosporaceae’’ in alphabetical order to Family Myrsinaceae: Lysimachia iniki Kauai 23–Geranium kauaiense–c the list of family names; Family Myrsinaceae: Lysimachia Kauai 23–Keysseria erici–c ■ ii. In paragraph (b)(1), by adding pendens Kauai 23–Keysseria helenae–c entries in alphabetical order by family Family Myrsinaceae: Lysimachia Kauai 23–Labordia helleri–k name to read as set forth below: scopulensis Kauai 23–Labordia pumila–c Family Myrsinaceae: Lysimachia Kauai 23–Lysimachia daphnoides–c New entry: venosa Kauai 23–Melicope degeneri–c Family Amaranathaceae: Family Myrsinaceae: Myrsine Kauai 23–Melicope puberula–f Charpentiera densiflora knudsenii Kauai 23–Myrsine mezii–f Family Araliaceae: Tetraplasandra Family Myrsinaceae: Myrsine mezii Kauai 23–Phyllostegia renovans–f bisattenuata Family Pittosporaceae: Pittosporum Kauai 23–Platydesma rostrata–p Family Araliaceae: Tetraplasandra napaliense Kauai 23–Psychotria grandiflora–f flynnii Family Rubiaceae: Psychotria Kauai 23–Tetraplasandra flynnii–i Family Asteliaceae: Astelia grandiflora Kauai 24–Astelia waialealae–d waialealae Family Rubiaceae: Psychotria hobdyi Kauai 24–Chamaesyce remyi var. Family Asteraceae: Dubautia Family Rutaceae: Melicope degeneri remyi–q imbricata ssp. imbricata Kauai 24–Dryopteris crinalis var. Family Asteraceae: Dubautia Family Rutaceae: Melicope paniculata podosorus–d kalalauensis Family Rutaceae: Melicope puberula Kauai 24–Dubautia kalalauensis–d Family Asteraceae: Dubautia Family Rutaceae: Platydesma rostrata Kauai 24–Dubautia waialealae–d kenwoodii ■ iii. In paragraph (b)(2), by adding Kauai 24–Geranium kauaiense–d Family Asteraceae: Dubautia ‘‘Family Dryopteridaceae’’ and ‘‘Family Kauai 24–Keysseria erici–d plantaginea ssp. magnifolia Pteridaceae’’ in alphabetical order to the Kauai 24–Keysseria helenae–d Family Asteraceae: Dubautia list of family names; and Kauai 24–Labordia helleri–l waialealae ■ iv. In paragraph (b)(2), by adding Kauai 24–Labordia pumila–d Family Asteraceae: Keysseria erici entries in alphabetical order by family Kauai 24–Lysimachia daphnoides–d Family Asteraceae: Keysseria helenae name to read as set forth below: Kauai 24–Melicope degeneri–d Family Campanulaceae: Cyanea New entry: Kauai 24–Melicope puberula–g dolichopoda Kauai 24–Myrsine mezii–g Family Campanulaceae: Cyanea Family Aspleniaceae: Diellia mannii Kauai 24–Phyllostegia renovans–g eleeleensis Family Dryopteridaceae: Dryopteris Kauai 24–Platydesma rostrata–q Family Campanulaceae: Cyanea crinalis var. podosorus Kauai 24–Psychotria grandiflora–g kolekoleensis Family Pteridaceae: Doryopteris Kauai 24–Tetraplasandra flynnii–j Family Campanulaceae: Cyanea angelica Kauai 25– Astelia waialealae–e kuhihewa Kauai 25–Chamaesyce remyi var. Family Caryophyllaceae: Schiedea § 17.99 Critical habitat; plants on the remyi–r attenuata islands of Kauai, Niihau, Molokai, Maui, Kauai 25–Dryopteris crinalis var. Family Euphorbiaceae: Chamaesyce Kahoolawe, Oahu, and Hawaii, HI, and on the Northwestern Hawaiian Islands. podosorus–e eleanoriae Kauai 25–Dubautia kalalauensis–e Family Euphorbiaceae: Chamaesyce (a) * * * Kauai 25–Dubautia waialealae–e remyi var. kauaiensis (1) Kauai. Critical habitat units are Kauai 25–Geranium kauaiense–e Family Euphorbiaceae: Chamaesyce described below. Coordinates are in Kauai 25–Keysseria erici–e remyi var. remyi UTM Zone 4 with units in meters using Kauai 25–Keysseria helenae–e Family Fabaceae: Canavalia North American Datum of 1983 Kauai 25–Labordia helleri–m napaliensis (NAD83). The following map shows the Kauai 25–Labordia pumila–e Family Geraniaceae: Geranium general locations of the critical habitat Kauai 25–Lysimachia daphnoides–e kauaiense units designated on the island of Kauai. Kauai 25–Melicope degeneri–e Family Gesneriaceae: Cyrtandra (i) Note: Map 1—Index map follows: Kauai 25–Melicope puberula–h oenobarba BILLING CODE 4310–55–S
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BILLING CODE 4310–55–C
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* * * * * 457144, 2449549; 457144, 2449549; 4–Cyrtandra paliku–a, Kauai 4– (vi) Kauai 4–Chamaesyce remyi var. 456901, 2449549; 457285, 2449395; Dubautia plantaginea ssp. magnifolia–a, kauaiensis–a 457635, 2449536; 457541, 2449482; Kauai 4–Lysimachia iniki–a, Kauai 4– (A) This is a unit of the Wet Cliff 457611, 2449549; 457388, 2449419; Lysimachia pendens–a, Kauai 4– ecosystem and consists of 38 ac (15.4 456313, 2449442; 457278, 2449394; Lysimachia venosa–a, and Kauai 4– ha). This unit includes land bounded by 457141, 2449391; 456345, 2449426; Platydesma rostrata–a (see paragraphs the following UTM Zone 4, NAD 83 456848, 2449384; 456731, 2449379; (a)(1)(vii), (a)(1)(ix), (a)(1)(xvi), coordinates (E, N): 457610, 2449548; 456589, 2449387; 456467, 2449400; (a)(1)(xvii), (a)(1)(xviii), (a)(1)(xxv), 457661, 2449558; 457661, 2449558; 456999, 2449392; 457474, 2449457. (a)(1)(xxvi), (a)(1)(xxvii), and 457651, 2449568; 457646, 2449571; This unit is also critical habitat for (a)(1)(xxix), respectively, of this 457637, 2449567; 457631, 2449564; Kauai 4–Chamaesyce remyi var. remyi– section). 457621, 2449558; 457618, 2449556; a, Kauai 4–Cyanea dolichopoda–a, 457613, 2449551; 457611, 2449549; Kauai 4–Cyrtandra oenobarba–a, Kauai (B) Note: Map 5a follows:
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BILLING CODE 4310–55–C
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(vii) Kauai 4–Chamaesyce remyi var. (B) See paragraph (a)(1)(vi)(B) of this (xxxiv) Kauai 7–Canavalia napaliensis– remyi–a section for the map of this unit. a (37 ac; 15 ha) (A) See paragraph (a)(1)(vi)(A) of this * * * * * (A) This is a unit of the Lowland section for the textual description of this Mesic ecosystem and consists of 37 ac unit. (xxv) Kauai 4–Lysimachia iniki–a (B) See paragraph (a)(1)(vi)(B) of this (15 ha). This unit includes land (A) See paragraph (a)(1)(vi)(A) of this section for the map of this unit. bounded by the following UTM Zone 4, section for the textual description of this NAD 83 coordinates (E, N): 458130, * * * * * unit. 2424804; 458259, 2424774; 458356, (ix) Kauai 4–Cyanea dolichopoda–a (B) See paragraph (a)(1)(vi)(B) of this 2424758; 458478, 2424743; 458570, 2424730; 458648, 2424694; 458648, (A) See paragraph (a)(1)(vi)(A) of this section for the map of this unit. 2424470; 458666, 2424580; 458010, section for the textual description of this (xxvi) Kauai 4–Lysimachia pendens–a 2424827; 458671, 2424648; 458429, unit. (B) See paragraph (a)(1)(vi)(B) of this (A) See paragraph (a)(1)(vi)(A) of this 2424488; 458620, 2424409; 458620, section for the map of this unit. section for the textual description of this 2424409; 457920, 2424829; 458513, unit. 2424437; 458579, 2424401; 458340, * * * * * 2424534; 458241, 2424577; 458160, (xvi) Kauai 4–Cyrtandra oenobarba–a (B) See paragraph (a)(1)(vi)(B) of this 2424631; 458068, 2424690; 458000, section for the map of this unit. 2424733; 457959, 2424769. This unit is (A) See paragraph (a)(1)(vi)(A) of this also critical habitat for Kauai 7– section for the textual description of this (xxvii) Kauai 4– Lysimachia venosa–a Chamaesyce eleanoriae–a, Kauai 7– unit. (A) See paragraph (a)(1)(vi)(A) of this (B) See paragraph (a)(1)(vi)(B) of this Chamaesyce remyi var. remyi–b, Kauai section for the textual description of this section for the map of this unit. 7–Charpentiera densiflora–a, Kauai 7– unit. Doryopteris angelica–a, Kauai 7– (xvii)Kauai 4–Cyrtandra paliku–a (B) See paragraph (a)(1)(vi)(B) of this Dubautia kenwoodii–a, Kauai 7– (A) See paragraph (a)(1)(vi)(A) of this section for the map of this unit. Labordia helleri–a, Kauai 7–Pittosporum section for the textual description of this * * * * * napaliense–a, Kauai 7–Platydesma unit. rostrata–b, Kauai 7–Psychotria hobdyi– (B) See paragraph (a)(1)(vi)(B) of this (xxix) Kauai 4–Platydesma rostrata–a a, and Kauai 7–Tetraplasandra section for the map of this unit. bisattenuata–a (see paragraphs (A) See paragraph (a)(1)(vi)(A) of this (a)(1)(xxxv), (a)(1)(xxxvi), (a)(1)(xxxvii), (xviii) Kauai 4–Dubautia plantaginea section for the textual description of this (a)(1)(xxxix), (a)(1)(xl), (a)(1)(xlii), ssp. magnifolia–a unit. (a)(1)(xlviii), (a)(1)(xlix), (a)(1)(l), and (A) See paragraph (a)(1)(vi)(A) of this (B) See paragraph (a)(1)(vi)(B) of this (a)(1)(liii), respectively, of this section). section for the textual description of this section for the map of this unit. (B) Note: Map 23a follows: unit. * * * * * BILLING CODE 4310–55–S
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BILLING CODE 4310–55–C
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(xxxv) Kauai 7–Chamaesyce eleanoriae– (B) See paragraph (a)(1)(xxxiv)(B) of 448638, 2440764; 449173, 2441529; a this section for the map of this unit. 449106, 2441435; 449078, 2441297; (A) See paragraph (a)(1)(xxxiv)(A) of * * * * * 449111, 2441196; 449121, 2441114; 449121, 2441114; 449068, 2441051; this section for the textual description of (liii) Kauai 7–Tetraplasandra this unit. 449006, 2441012; 448887, 2440934; bisattenuata–a 449249, 2441697; 448678, 2440741; (B) See paragraph (a)(1)(xxxiv)(B) of 449275, 2441773; 448601, 2440652; this section for the map of this unit. (A) See paragraph (a)(1)(xxxiv)(A) of this section for the textual description of 448599, 2440647; 448600, 2440668; (xxxvi) Kauai 7–Chamaesyce remyi var. this unit. 448601, 2440679; 448606, 2440704; remyi–b (B) See paragraph (a)(1)(xxxiv)(B) of 448612, 2440722; 448615, 2440731; (A) See paragraph (a)(1)(xxxiv)(A) of this section for the map of this unit. 448619, 2440740; 448622, 2440749; this section for the textual description of * * * * * 448954, 2441097; 448777, 2440842; 448640, 2442451; 448682, 2442350; this unit. (lvii) Kauai 10—Astelia waialealae—a (B) See paragraph (a)(1)(xxxiv)(B) of 448677, 2442356; 448673, 2442365; this section for the map of this unit. (A) This is a unit of the Montane Wet 448671, 2442369; 448665, 2442379; ecosystem and consists of 99 ac (40 ha). 448657, 2442387; 448648, 2442399; (xxxvii) Kauai 7–Charpentiera This unit includes land bounded by the 448643, 2442410; 448642, 2442419; densiflora–a following UTM Zone 4, NAD83 448642, 2442430; 449201, 2441638; (A) See paragraph (a)(1)(xxxiv)(A) of coordinates (E, N): 449000, 2441660; 448831, 2441859; 448650, 2440769; this section for the textual description of 449004, 2441650; 449006, 2441639; 448637, 2442455; 448880, 2442563; this unit. 448995, 2441668; 449009, 2441625; 448917, 2442504; 448983, 2442384; (B) See paragraph (a)(1)(xxxiv)(B) of 449012, 2441616; 449030, 2441595; 449024, 2442290; 449064, 2442221; this section for the map of this unit. 448925, 2441722; 449037, 2441588; 449090, 2442135; 449115, 2442038; 449017, 2441611; 448986, 2441677; 449148, 2441893; 449244, 2441819; * * * * * 448972, 2441689; 448957, 2441700; 448642, 2442440; 448940, 2441238; (xxxix) Kauai 7–Doryopteris angelica–a 449043, 2441578; 448933, 2441715; 448630, 2440759; 448969, 2441116; 449060, 2441481; 448915, 2441738; 448971, 2441119; 448972, 2441136; (A) See paragraph (a)(1)(xxxiv)(A) of 448913, 2441753; 448914, 2441760; 448973, 2441143; 448972, 2441150; this section for the textual description of 448913, 2441774; 448915, 2441796; 448967, 2441159; 448961, 2441163; this unit. 448910, 2441807; 448900, 2441814; 448949, 2441170; 448941, 2441177; (B) See paragraph (a)(1)(xxxiv)(B) of 448939, 2441710; 448964, 2441441; 448820, 2441871; 448934, 2441230; this section for the map of this unit. 448677, 2442140; 448892, 2441817; 448948, 2441084; 448944, 2441250; (xl) Kauai 7–Dubautia kenwoodii–a 448916, 2441369; 448918, 2441381; 448946, 2441259; 448948, 2441264; 448922, 2441392; 448930, 2441400; 448948, 2441273; 448948, 2441281; (A) See paragraph (a)(1)(xxxiv)(A) of 448936, 2441403; 448940, 2441404; 448944, 2441291; 448935, 2441302; this section for the textual description of 448945, 2441411; 449065, 2441502; 448928, 2441313; 448925, 2441322; this unit. 448952, 2441427; 449046, 2441569; 448920, 2441333; 448930, 2441194; (B) See paragraph (a)(1)(xxxiv)(B) of 448971, 2441443; 449003, 2441449; 448837, 2440912; 448663, 2440773; this section for the map of this unit. 449032, 2441461; 449040, 2441466; 448678, 2440780; 448691, 2440790; * * * * * 449049, 2441471; 449053, 2441472; 448711, 2440806; 448720, 2440813; (xlii) Kauai 7–Labordia helleri–a 449064, 2441492; 449066, 2441511; 448727, 2440820; 448735, 2440829; 449061, 2441528; 449050, 2441561; 448745, 2440841; 448764, 2440857; (A) See paragraph (a)(1)(xxxiv)(A) of 448948, 2441420; 448764, 2442029; 448788, 2440878; 448964, 2441109; this section for the textual description of 448684, 2442157; 448675, 2442123; 448811, 2440896; 448919, 2441341; this unit. 448677, 2442115; 448683, 2442101; 448841, 2440914; 448861, 2440927; (B) See paragraph (a)(1)(xxxiv)(B) of 448694, 2442089; 448710, 2442077; 448877, 2440939; 448918, 2440982; this section for the map of this unit. 448718, 2442069; 448723, 2442061; 448940, 2441006; 448941, 2441024; * * * * * 448728, 2442058; 448736, 2442055; 448943, 2441044; 448943, 2441053; 448682, 2442148; 448755, 2442041; 448943, 2441063; 448926, 2441212; (xlviii) Kauai 7–Pittosporum 448917, 2441357; 448768, 2442019; 448802, 2440889; 448933, 2441184. napaliense–a 448773, 2442013; 448777, 2442002; This unit is also critical habitat for (A) See paragraph (a)(1)(xxxiv)(A) of 448781, 2441990; 448787, 2441967; Kauai 10–Chamaesyce remyi var. remyi– this section for the textual description of 448789, 2441938; 448803, 2441914; c, Kauai 10–Dryopteris crinalis var. this unit. 448813, 2441900; 448814, 2441894; podosorus–a, Kauai 10–Dubautia (B) See paragraph (a)(1)(xxxiv)(B) of 448817, 2441884; 448746, 2442051; kalalauensis–a, Kauai 10–Dubautia this section for the map of this unit. 448707, 2442267; 448884, 2441820; waialealae–a, Kauai 10–Geranium 448877, 2441825; 448850, 2441844; kauaiense–a, Kauai 10–Keysseria erici– (xlix) Kauai 7–Platydesma rostrata–b 448840, 2441852; 448697, 2442342; a, Kauai 10–Keysseria helenae–a, Kauai (A) See paragraph (a)(1)(xxxiv)(A) of 448711, 2442341; 448721, 2442331; 10–Labordia helleri–b, Kauai 10– this section for the textual description of 448724, 2442320; 448723, 2442309; Labordia pumila–a, Kauai 10– this unit. 448722, 2442303; 448944, 2441075; Lysimachia daphnoides–a, Kauai 10– (B) See paragraph (a)(1)(xxxiv)(B) of 448712, 2442283; 448890, 2441818; Melicope degeneri–a, Kauai 10– this section for the map of this unit. 448706, 2442257; 448705, 2442250; Melicope puberula–a, Kauai 10–Myrsine 448699, 2442238; 448692, 2442233; mezii–a, Kauai 10–Phyllostegia (l) Kauai 7–Psychotria hobdyi–a 448684, 2442226; 448678, 2442221; renovans–a, Kauai 10–Platydesma (A) See paragraph (a)(1)(xxxiv)(A) of 448673, 2442209; 448671, 2442202; rostrata–c, Kauai 10–Psychotria this section for the textual description of 448674, 2442187; 448680, 2442169; grandiflora–a, and Kauai 10– this unit. 448718, 2442295; 448601, 2440652; Tetraplasandra flynnii–a (see
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paragraphs (a)(1)(lxi), (a)(1)(lxxvi), (a)(1)(xci), (a)(1)(xciii), (a)(1)(xcviii), (B) Note: Map 35a follows: (a)(1)(lxxviii), (a)(1)(lxxxi), (a)(1)(c), (a)(1)(ciii), (a)(1)(cv), BILLING CODE 4310–55–S (a)(1)(lxxxiii), (a)(1)(lxxxvi), (a)(1)(cviii), (a)(1)(cxi), and (a)(1)(cxv), (a)(1)(lxxxvii), (a)(1)(lxxxviii), respectively, of this section).
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BILLING CODE 4310–55–C
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* * * * * 450103, 2439293; 450921, 2438291; coordinates (E, N): 448864, 2430994; 450098, 2439272; 450704, 2438180; 448915, 2431294; 448870, 2430976; (lix) Kauai 10–Chamaesyce remyi var. 450742, 2438065; 450785, 2437968; kauaiensis–b 448747, 2431927; 448866, 2430965; 450701, 2437933; 450657, 2437930; 448877, 2431143; 448890, 2431196; (A) This is a unit of the Lowland Wet 450554, 2437925; 450467, 2437958; 448902, 2431222; 448896, 2431533; ecosystem and consists of 2,330 ac (943 450381, 2437976; 450256, 2438015; 448792, 2431836; 448857, 2431685; ha). This unit is also critical habitat for 450165, 2438076; 448286, 2436668; 448875, 2431636; 448879, 2431616; Kauai 10–Chamaesyce remyi var. remyi– 451002, 2438334; 449748, 2439830; 448879, 2431586; 448904, 2431254; d, Kauai 10–Charpentiera densiflora–b, 450248, 2439634; 449295, 2440144; 448883, 2431556; 448907, 2431280; Kauai 10–Cyanea eleeleensis–a, Kauai 449323, 2440106; 449435, 2440131; 448580, 2432096; 448909, 2431441; 10–Cyanea kolekoleensis–a, Kauai 10– 449639, 2440133; 449771, 2440087; 448926, 2431397; 448922, 2431378; Cyanea kuhihewa–a, Kauai 10– 449931, 2440046; 450041, 2440031; 448920, 2431356; 448871, 2430833; Cyrtandra oenobarba–b, Kauai 10– 450084, 2440003; 450061, 2439947; 448858, 2431071; 449196, 2430298; Dubautia imbricata ssp. imbricata–a, 449964, 2439881; 450172, 2439295; 448319, 2429275; 449002, 2429203; Kauai 10–Labordia helleri–c, Kauai 10– 449758, 2439861; 449402, 2440381; Melicope paniculata–a, Kauai 10– 448999, 2429252; 449004, 2429384; 449760, 2439660; 449816, 2439481; 449017, 2429491; 449053, 2429598; Melicope puberula–b, Kauai 10– 449861, 2439257; 449886, 2439054; Phyllostegia renovans–b, Kauai 10– 449076, 2429644; 449139, 2429727; 449944, 2438939; 449945, 2438937; 449175, 2429758; 449262, 2429801; Platydesma rostrata–d, Kauai 10– 450092, 2438827; 450179, 2438817; Stenogyne kealiae–a, Kauai 10– 449318, 2429811; 449326, 2430025; 450222, 2438885; 450189, 2439030; 449290, 2430091; 448866, 2430960; Tetraplasandra bisattenuata–b, and 450136, 2439186; 449852, 2439858; Kauai 10–Tetraplasandra flynii–b, (see 448995, 2430341; 448858, 2431041; 449221, 2436668; 449007, 2436513; 448902, 2430792; 448947, 2430723; paragraphs (a)(1)(lxii), (a)(1)(lxiv), 449328, 2436406; 449213, 2436403; (a)(1)(lxvii), (a)(1)(lxviii), (a)(1)(lxix), 448983, 2430644; 448991, 2430617; 449145, 2436465; 449130, 2436544; 449290, 2430208; 449026, 2430433; (a)(1)(lxxiii), (a)(1)(lxxvii), (a)(1)(lxxxix), 449158, 2436572; 449514, 2436395; (a)(1)(xcix), (a)(1)(ci), (a)(1)(cvi), 449260, 2430300; 448959, 2430257; 449231, 2436635; 449615, 2436301; 448970, 2430209; 449020, 2430214; (a)(1)(cix), (a)(1)(cxiii), (a)(1)(cxiv), and 449188, 2436712; 449145, 2436768; (a)(1)(cxvi), respectively, of this 449086, 2430250; 449107, 2430262; 449110, 2436794; 449120, 2436671; 448869, 2430883; 449011, 2430547; section). 449102, 2436620; 449079, 2436605; (1) This unit includes land bounded 447154, 2430979; 448122, 2430928; 450823, 2436692; 449219, 2436602; by the following UTM Zone 4, NAD83 446849, 2430738; 446921, 2430739; 449927, 2436216; 450785, 2436606; coordinates (E, N): 450218, 2439675; 446961, 2430832; 448892, 2431475; 450862, 2436552; 450878, 2436459; 451901, 2438605; 451485, 2438695; 446996, 2430939; 448686, 2432011; 450894, 2436334; 450928, 2436285; 451170, 2438845; 450653, 2439686; 446996, 2430939; 447214, 2431052; 450659, 2436369; 449414, 2436418; 450094, 2440396; 450101, 2440409; 447347, 2431063; 447367, 2431032; 450332, 2436229; 449008, 2436511; 450009, 2440531; 450060, 2439401; 447520, 2431054; 447836, 2431129; 449924, 2436215; 449870, 2436206; 450044, 2439436; 450080, 2439502; 447989, 2431010; 447038, 2430959; 449812, 2436172; 449765, 2436128; 450121, 2439558; 450313, 2437467; 447800, 2431556; 448534, 2432102; 449727, 2436090; 449689, 2436186; 450187, 2439652; 452012, 2438334; 448512, 2432103; 448509, 2432100; 449683, 2436195; 450351, 2436329; 450243, 2439684; 450236, 2439581; 448291, 2431933; 448077, 2431769; 448790, 2437520; 449020, 2436554; 450179, 2439451; 450144, 2439400; 446723, 2430729; 447808, 2431563; 450116, 2439393; 450060, 2439401; 448912, 2438027; 448953, 2437948; 448991, 2437897; 449024, 2437853; 447073, 2430978; 447681, 2431465; 450009, 2440531; 449922, 2440494; 447305, 2431176; 448877, 2431143; 449797, 2440464; 449675, 2440467; 448994, 2437683; 448926, 2438111; 448920, 2437538; 449012, 2438179; 447222, 2431112; 448868, 2431103; 450154, 2439614; 451319, 2437948; 447039, 2430972; 448011, 2431718; 450466, 2437546; 450580, 2437507; 448665, 2437510; 448596, 2437431; 448540, 2437294; 448517, 2437230; 447907, 2429318; 448615, 2432078; 450757, 2437431; 450948, 2437416; 448288, 2429278; 448283, 2429271; 451043, 2437429; 451072, 2437437; 448459, 2437218; 448428, 2437261; 448226, 2436801; 450205, 2439505; 448109, 2429291; 446993, 2430912; 451101, 2437491; 451108, 2437503; 448055, 2429303; 448174, 2430856; 451138, 2437581; 451245, 2437644; 449412, 2438461; 448436, 2436335; 450010, 2438158; 449905, 2438254; 447613, 2429349; 447532, 2429359; 451275, 2437714; 452023, 2438472; 447492, 2429364; 447530, 2429461; 451205, 2437885; 452004, 2438389; 449811, 2438272; 449689, 2438311; 449567, 2438395; 448910, 2438029; 447517, 2429602; 447489, 2429733; 451411, 2437910; 451488, 2437910; 447465, 2429924; 448370, 2430494; 451579, 2437997; 451593, 2438098; 449445, 2438454; 449027, 2437802; 448055, 2429297; 447481, 2430092; 451654, 2438137; 451738, 2438169; 449303, 2438449; 449280, 2438423; 448175, 2430731; 448297, 2430722; 451822, 2438170; 451898, 2438217; 449234, 2438327; 449198, 2438248; 448369, 2430567; 448340, 2430390; 451952, 2438225; 451982, 2438287; 449146, 2438227; 449117, 2438215; 448312, 2430325; 447855, 2430195; 449326, 2440266; 451228, 2437792; 449027, 2438184; 449506, 2438446; 447580, 2430191; 448297, 2430660; 450799, 2438248; 449502, 2440462; 450506, 2437164; 450691, 2436909; 450261, 2439193; 450390, 2438961; 450656, 2436941; 450515, 2437040; 447684, 2430223; 448070, 2430056; 450492, 2438803; 450601, 2438722; 450407, 2437210; 450299, 2437233; 448138, 2430060; 448199, 2430119; 450715, 2438722; 450776, 2438704; 448983, 2437578; 450584, 2437009. 448260, 2430203. 450786, 2438622; 450835, 2438510; (2) This unit includes land bounded (B) Note: Map 36a follows: 450888, 2438416; 450949, 2438380; by the following UTM Zone 4, NAD 83 BILLING CODE 4310–55–S
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(lx) Kauai 10–Chamaesyce remyi var. 448756, 2439586; 448792, 2439355; 448604, 2440594; 449006, 2441012; kauaiensis–c 448831, 2439328; 448887, 2439317; 449309, 2439083; 449311, 2439179; 448953, 2439254; 449067, 2439195; 450041, 2440031. This unit is also (A) This is a unit of the Wet Cliff 448605, 2440582; 449760, 2439660; critical habitat for Kauai 10– ecosystem and consists of 489 ac (198 448605, 2440585; 449964, 2439881; Chamaesyce remyi var. remyi–e, Kauai ha). This unit includes land bounded by 449245, 2439220; 449852, 2439858; 10–Cyanea dolichopoda–b, Kauai 10– the following UTM Zone 4, NAD 83 449748, 2439830; 449816, 2439481; Cyrtandra oenobarba–c, Kauai 10– coordinates (E, N): 449326, 2440266; 449861, 2439257; 449886, 2439054; Cyrtandra paliku–b, Kauai 10–Dubautia 449663, 2440988; 449861, 2440726; 449944, 2438939; 449177, 2439197; plantaginea ssp. magnifolia–b, Kauai 449771, 2440087; 449639, 2440133; 448777, 2440842; 449662, 2441006; 10–Lysimachia iniki–b, Kauai 10– 449435, 2440131; 449323, 2440106; 449661, 2441029; 449533, 2441052; Lysimachia pendens–b, Kauai 10– 449295, 2440144; 449931, 2440046; 449396, 2441083; 449396, 2441083; Lysimachia venosa–b, and Kauai 10– 449402, 2440381; 449502, 2440462; 449121, 2441114; 449068, 2441051; Platydesma rostrata–e (see paragraphs 449675, 2440467; 449797, 2440464; 448770, 2439804; 448887, 2440934; (a)(1)(lxiii), (a)(1)(lxvi), (a)(1)(lxxiv), 449922, 2440494; 450009, 2440531; 450061, 2439947; 448678, 2440741; (a)(1)(lxxv), (a)(1)(lxxx), (a)(1)(xcv), 449861, 2440726; 449663, 2440988; 448601, 2440652; 448599, 2440647; (a)(1)(xcvi), (a)(1)(xcvii), and (a)(1)(cx), 449758, 2439861; 449987, 2440561; 448599, 2440637; 448600, 2440627; respectively, of this section). 450084, 2440003; 449943, 2438939; 448601, 2440618; 448603, 2440603; (B) Note: Map 36b follows:
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00153 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19112 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
BILLING CODE 4310–55–C
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(lxi) Kauai 10–Chamaesyce remyi var. (lxxiv) Kauai 10–Cyrtandra oenobarba– (B) See paragraph (a)(1)(lvii)(B) of this remyi–c c section for the map of this unit. (A) See paragraph (a)(1)(lvii)(A) of (A) See paragraph (a)(1)(lx)(A) of this (lxxxvii) Kauai 10–Keysseria helenae–a this section for the textual description of section for the textual description of this (A) See paragraph (a)(1)(lvii)(A) of this unit. unit. (B) See paragraph (a)(1)(lvii)(B) of this (B) See paragraph (a)(1)(lx)(B) of this this section for the textual description of section for the map of this unit. section for the map of this unit. this unit. (B) See paragraph (a)(1)(lvii)(B) of this (lxii) Kauai 10–Chamaesyce remyi var. (lxxv) Kauai 10–Cyrtandra paliku–b section for the map of this unit. remyi–d (A) See paragraph (a)(1)(lx)(A) of this (lxxxviii) Kauai 10–Labordia helleri–b (A) See paragraph (a)(1)(lix)(A) of this section for the textual description of this section for the textual description of this unit. (A) See paragraph (a)(1)(lvii)(A) of unit. (B) See paragraph (a)(1)(lx)(B) of this this section for the textual description of (B) See paragraph (a)(1)(lix)(B) of this section for the map of this unit. this unit. section for the map of this unit. (B) See paragraph (a)(1)(lvii)(B) of this (lxxvi) Kauai 10–Dryopteris crinalis var. section for the map of this unit. (lxiii) Kauai 10–Chamaesyce remyi var. podosorus–a remyi–e (lxxxix) Kauai 10–Labordia helleri–c (A) See paragraph (a)(1)(lvii)(A) of (A) See paragraph (a)(1)(lx)(A) of this this section for the textual description of (A) See paragraph (a)(1)(lix)(A) of this section for the textual description of this this unit. section for the textual description of this unit. (B) See paragraph (a)(1)(lvii)(B) of this unit. (B) See paragraph (a)(1)(lx)(B) of this section for the map of this unit. (B) See paragraph (a)(1)(lix)(B) of this section for the map of this unit. section for the map of this unit. (lxxvii) Kauai 10–Dubautia imbricata * * * * * (lxiv) Kauai 10–Charpentiera ssp. imbricata–a densiflora–b (xci) Kauai 10–Labordia pumila–a (A) See paragraph (a)(1)(lix)(A) of this (A) See paragraph (a)(1)(lix)(A) of this section for the textual description of this (A) See paragraph (a)(1)(lvii)(A) of section for the textual description of this unit. this section for the textual description of unit. (B) See paragraph (a)(1)(lix)(B) of this this unit. (B) See paragraph (a)(1)(lix)(B) of this section for the map of this unit. (B) See paragraph (a)(1)(lvii)(B) of this section for the map of this unit. section for the map of this unit. * * * * * (lxxviii) Kauai 10–Dubautia kalalauensis–a * * * * * (lxvi) Kauai 10–Cyanea dolichopoda–b (A) See paragraph (a)(1)(lvii)(A) of (xciii) Kauai 10–Lysimachia (A) See paragraph (a)(1)(lx)(A) of this this section for the textual description of daphnoides–a section for the textual description of this this unit. (A) See paragraph (a)(1)(lvii)(A) of unit. (B) See paragraph (a)(1)(lvii)(B) of this this section for the textual description of (B) See paragraph (a)(1)(lx)(B) of this section for the map of this unit. this unit. section for the map of this unit. * * * * * (B) See paragraph (a)(1)(lvii)(B) of this (lxvii) Kauai 10–Cyanea eleeleensis–a section for the map of this unit. (lxxx) Kauai 10–Dubautia plantaginea (A) See paragraph (a)(1)(lix)(A) of this ssp. magnifolia–b * * * * * section for the textual description of this (A) See paragraph (a)(1)(lx)(A) of this (xcv) Kauai 10–Lysimachia iniki–b unit. (B) See paragraph (a)(1)(lix)(B) of this section for the textual description of this (A) See paragraph (a)(1)(lx)(A) of this section for the map of this unit. unit. section for the textual description of this (B) See paragraph (a)(1)(lx)(B) of this unit. (lxviii) Kauai 10–Cyanea kolekoleensis– section for the map of this unit. (B) See paragraph (a)(1)(lx)(B) of this a (lxxxi) Kauai 10–Dubautia waialealae–a section for the map of this unit. (A) See paragraph (a)(1)(lix)(A) of this (xcvi) Kauai 10–Lysimachia pendens–b section for the textual description of this (A) See paragraph (a)(1)(lvii)(A) of unit. this section for the textual description of (A) See paragraph (a)(1)(lx)(A) of this (B) See paragraph (a)(1)(lix)(B) of this this unit. section for the textual description of this section for the map of this unit. (B) See paragraph (a)(1)(lvii)(B) of this unit. section for the map of this unit. (B) See paragraph (a)(1)(lx)(B) of this (lxix) Kauai 10–Cyanea kuhihewa–a * * * * * section for the map of this unit. (A) See paragraph (a)(1)(lix)(A) of this (lxxxiii) Kauai 10–Geranium kauaiense– section for the textual description of this (xcvii) Kauai 10–Lysimachia venosa–b a unit. (A) See paragraph (a)(1)(lx)(A) of this (B) See paragraph (a)(1)(lix)(B) of this (A) See paragraph (a)(1)(lvii)(A) of section for the textual description of this section for the map of this unit. this section for the textual description of unit. * * * * * this unit. (B) See paragraph (a)(1)(lx)(B) of this (B) See paragraph (a)(1)(lvii)(B) of this section for the map of this unit. (lxxiii) Kauai 10–Cyrtandra oenobarba– section for the map of this unit. (xcviii) Kauai 10–Melicope degeneri–a b * * * * * (A) See paragraph (a)(1)(lix)(A) of this (A) See paragraph (a)(1)(lvii)(A) of section for the textual description of this (lxxxvi) Kauai 10–Keysseria erici–a this section for the textual description of unit. (A) See paragraph (a)(1)(lvii)(A) of this unit. (B) See paragraph (a)(1)(lix)(B) of this this section for the textual description of (B) See paragraph (a)(1)(lvii)(B) of this section for the map of this unit. this unit. section for the map of this unit.
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(xcix) Kauai 10–Melicope paniculata–a (B) See paragraph (a)(1)(lvii)(B) of this 441620, 2446723; 442005, 2446171; (A) See paragraph (a)(1)(lix)(A) of this section for the map of this unit. 441982, 2446194; 441963, 2446219; section for the textual description of this * * * * * 441943, 2446256; 441929, 2446268; 441897, 2446273; 441879, 2446263; unit. (cxiii) Kauai 10–Stenogyne kealiae–a (B) See paragraph (a)(1)(lix)(B) of this 441852, 2446219; 442039, 2446165; section for the map of this unit. (A) See paragraph (a)(1)(lix)(A) of this 441834, 2446230; 442059, 2446159; section for the textual description of this 441855, 2446295; 441856, 2446328; (c) Kauai 10–Melicope puberula–a unit. 441868, 2446401; 441864, 2446424; (A) See paragraph (a)(1)(lvii)(A) of (B) See paragraph (a)(1)(lix)(B) of this 441847, 2446451; 441836, 2446475; this section for the textual description of section for the map of this unit. 441829, 2446501; 441829, 2446505; this unit. (cxiv) Kauai 10–Tetraplasandra 441674, 2446682; 440599, 2447501; (B) See paragraph (a)(1)(lvii)(B) of this bisattenuata–b 441838, 2446221; 442317, 2445917; section for the map of this unit. 442501, 2445803; 442492, 2445803; (A) See paragraph (a)(1)(lix)(A) of this (ci) Kauai 10–Melicope puberula–b 442467, 2445799; 442448, 2445805; section for the textual description of this 442444, 2445807; 442435, 2445813; (A) See paragraph (a)(1)(lix)(A) of this unit. 442430, 2445827; 442430, 2445830; section for the textual description of this (B) See paragraph (a)(1)(lix)(B) of this 442428, 2445851; 442019, 2446165; unit. section for the map of this unit. (B) See paragraph (a)(1)(lix)(B) of this 445907, 2442657; 441584, 2446741; section for the map of this unit. (cxv) Kauai 10–Tetraplasandra flynnii– 442273, 2445945; 442261, 2445949; a 442202, 2445986; 442175, 2445995; * * * * * (A) See paragraph (a)(1)(lvii)(A) of 442100, 2446007; 442082, 2446029; (ciii) Kauai 10–Myrsine mezii–a this section for the textual description of 442072, 2446052; 442067, 2446082; (A) See paragraph (a)(1)(lvii)(A) of this unit. 442073, 2446121; 442071, 2446146; this section for the textual description of (B) See paragraph (a)(1)(lvii)(B) of this 442381, 2445882; 440800, 2447339; this unit. section for the map of this unit. 441648, 2446705; 441083, 2447147; (B) See paragraph (a)(1)(lvii)(B) of this 441058, 2447153; 441039, 2447168; (cxvi) Kauai 10–Tetraplasandra flynnii– section for the map of this unit. 440969, 2447210; 440941, 2447230; b * * * * * 440888, 2447250; 440873, 2447265; (A) See paragraph (a)(1)(lix)(A) of this 440865, 2447286; 441113, 2447170; (cv) Kauai 10–Phyllostegia renovans–a section for the textual description of this 440842, 2447328; 441133, 2447183; (A) See paragraph (a)(1)(lvii)(A) of unit. 440740, 2447346; 440722, 2447354; this section for the textual description of (B) See paragraph (a)(1)(lix)(B) of this 440710, 2447368; 440699, 2447389; this unit. section for the map of this unit. 440693, 2447407; 440695, 2447430; (B) See paragraph (a)(1)(lvii)(B) of this * * * * * 440703, 2447452; 440703, 2447461; section for the map of this unit. 440693, 2447475; 443497, 2444548; (cxxx) Kauai 11—Astelia waialealae—b 440858, 2447311; 441373, 2447026; (cvi) Kauai 10–Phyllostegia renovans–b (A) This is a unit of the Montane Wet 441549, 2446752; 441532, 2446763; (A) See paragraph (a)(1)(lix)(A) of this ecosystem and consists of 14,096 ac 441521, 2446777; 441476, 2446797; section for the textual description of this (5,704 ha). This unit is also critical 441455, 2446804; 441434, 2446820; unit. habitat for Kauai 11–Chamaesyce remyi 441405, 2446869; 441402, 2446899; (B) See paragraph (a)(1)(lix)(B) of this var. remyi–f, Kauai 11–Dryopteris 441403, 2446972; 441095, 2447154; section for the map of this unit. crinalis var. podosorus–b, Kauai 11– 441398, 2446997; 442710, 2445647; * * * * * Dubautia kalalauensis–b, Kauai 11– 441363, 2447030; 441317, 2447043; 441283, 2447083; 441268, 2447104; (cviii) Kauai 10–Platydesma rostrata–c Dubautia waialealae–b, Kauai 11– Geranium kauaiense–b, Kauai 11– 441240, 2447171; 441231, 2447186; (A) See paragraph (a)(1)(lvii)(A) of Keysseria erici–b, Kauai 11–Keysseria 441219, 2447195; 441201, 2447195; this section for the textual description of helenae–b, Kauai 11–Labordia helleri–d, 441172, 2447190; 441148, 2447188; this unit. Kauai 11–Labordia pumila–b, Kauai 11– 441399, 2446995; 443193, 2444946; (B) See paragraph (a)(1)(lvii)(B) of this Lysimachia daphnoides–b, Kauai 11– 442711, 2445664; 443294, 2444870; section for the map of this unit. Melicope degeneri–b, Kauai 11– 443290, 2444876; 443281, 2444890; (cix) Kauai 10–Platydesma rostrata–d Melicope puberula–c, Kauai 11–Myrsine 443271, 2444898; 443260, 2444907; mezii–b, Kauai 11–Phyllostegia 443252, 2444914; 443240, 2444927; (A) See paragraph (a)(1)(lix)(A) of this renovans–c, Kauai 11–Platydesma 443234, 2444932; 443307, 2444833; section for the textual description of this rostrata–f, Kauai 11–Psychotria 443196, 2444944; 443309, 2444829; unit. 443177, 2444962; 443175, 2444965; (B) See paragraph (a)(1)(lix)(B) of this grandiflora–b, and Kauai 11– 443163, 2444984; 443158, 2444995; section for the map of this unit. Tetraplasandra flynnii–c (see paragraphs (a)(1)(cxlii), (a)(1)(clxxvii), 443156, 2445003; 443153, 2445020; (cx) Kauai 10–Platydesma rostrata–e (a)(1)(clxxix), (a)(1)(clxxxv), 443153, 2445040; 443152, 2445059; (A) See paragraph (a)(1)(lx)(A) of this (a)(1)(cxcix), (a)(1)(ccxvi), (a)(1)(ccxvii), 443150, 2445078; 443144, 2445096; section for the textual description of this (a)(1)(ccxxii), (a)(1)(ccxxix), 443215, 2444938; 443403, 2444695; unit. (a)(1)(ccxxxv), (a)(1)(ccxli), 443483, 2444551; 443478, 2444555; (B) See paragraph (a)(1)(lx)(B) of this (a)(1)(ccxlix), (a)(1)(cclviii), 443464, 2444570; 443459, 2444579; section for the map of this unit. (a)(1)(cclxvi), (a)(1)(cclxxvii), 443452, 2444591; 443447, 2444608; (a)(1)(ccxc), and (a)(1)(cccxxxiv), 443444, 2444627; 443443, 2444647; (cxi) Kauai 10–Psychotria grandiflora–a respectively, of this section). 443440, 2444655; 443301, 2444851; (A) See paragraph (a)(1)(lvii)(A) of (1) This unit includes land bounded 443423, 2444686; 443122, 2445132; this section for the textual description of by the following UTM Zone 4, NAD83 443385, 2444699; 443373, 2444702; this unit. coordinates (E, N): 441848, 2446265; 443366, 2444706; 443352, 2444721;
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443346, 2444728; 443341, 2444740; 438440, 2451600; 438425, 2451652; 439825, 2444344; 439258, 2444658; 443333, 2444758; 443327, 2444778; 438977, 2452232; 438442, 2451682; 437689, 2441877; 439796, 2445123; 443320, 2444796; 443313, 2444815; 439065, 2449586; 438529, 2451692; 439719, 2445133; 439696, 2445110; 443435, 2444664; 442675, 2445453; 438599, 2451708; 438657, 2451738; 439681, 2445072; 439673, 2445011; 442804, 2445357; 442798, 2445359; 438670, 2451754; 438675, 2451766; 439668, 2444981; 439643, 2444902; 442785, 2445364; 442765, 2445370; 438680, 2451783; 438680, 2451858; 439571, 2444823; 439864, 2444845; 442747, 2445377; 442743, 2445378; 438715, 2451908; 438761, 2452013; 439386, 2444762; 438723, 2443923; 442727, 2445386; 442709, 2445399; 438833, 2452090; 438429, 2451670; 439172, 2444564; 439145, 2444538; 442694, 2445414; 443140, 2445105; 440218, 2448446; 439037, 2449642; 439156, 2444527; 439254, 2444472; 442682, 2445433; 442858, 2445342; 440416, 2448314; 440411, 2448336; 439413, 2444371; 439522, 2444418; 442671, 2445471; 442667, 2445490; 440402, 2448352; 440391, 2448353; 439617, 2444459; 439747, 2444522; 442668, 2445494; 442672, 2445510; 440375, 2448361; 440350, 2448395; 439800, 2444594; 439843, 2444655; 442673, 2445515; 442668, 2445560; 440331, 2448411; 440307, 2448418; 439485, 2444800; 437493, 2441868; 442666, 2445576; 442668, 2445590; 440421, 2448239; 440237, 2448434; 437088, 2442647; 437103, 2442643; 442674, 2445604; 440579, 2447511; 440413, 2448216; 440198, 2448467; 437156, 2442615; 437159, 2442579; 442689, 2445419; 442990, 2445276; 440190, 2448485; 440179, 2448496; 437120, 2442503; 437105, 2442445; 442713, 2445661; 443103, 2445152; 440157, 2448511; 440136, 2448537; 437174, 2442422; 437294, 2442356; 443083, 2445171; 443066, 2445190; 440125, 2448578; 440120, 2448633; 437425, 2442191; 438964, 2443837; 443066, 2445209; 443067, 2445215; 440124, 2448663; 440125, 2448690; 437476, 2442051; 437052, 2442940; 443068, 2445227; 443065, 2445247; 440121, 2448718; 440254, 2448428; 437495, 2441869; 437522, 2441879; 443047, 2445260; 443029, 2445263; 440435, 2447959; 440540, 2447539; 437532, 2441880; 437566, 2441876; 442821, 2445353; 443006, 2445268; 440487, 2447571; 440468, 2447593; 437601, 2441867; 437602, 2441867; 442842, 2445347; 442981, 2445284; 440451, 2447620; 440413, 2447711; 437617, 2441866; 437635, 2441866; 442972, 2445292; 442956, 2445301; 440383, 2447794; 440377, 2447819; 437647, 2441866; 437674, 2441875; 442952, 2445303; 442934, 2445314; 440378, 2447845; 440384, 2447871; 437307, 2442101; 437950, 2443233; 442915, 2445323; 442898, 2445330; 440415, 2448290; 440436, 2447941; 440124, 2445056; 438608, 2443916; 442877, 2445336; 442862, 2445341; 440073, 2448762; 440426, 2447974; 438453, 2443825; 438438, 2443814; 443135, 2445115; 443009, 2445266; 440409, 2447991; 440343, 2448005; 438318, 2443723; 438201, 2443629; 438435, 2450985; 438472, 2451261; 440329, 2448016; 440325, 2448033; 438183, 2443628; 438143, 2443587; 438715, 2450373; 438690, 2450392; 440331, 2448061; 440341, 2448084; 438208, 2443477; 437981, 2443476; 438621, 2450415; 438581, 2450423; 440374, 2448123; 440384, 2448138; 437226, 2442709; 437928, 2443310; 438578, 2450438; 438554, 2450559; 440401, 2448191; 440395, 2447896; 437182, 2442830; 437657, 2443231; 438488, 2450686; 438501, 2450796; 439260, 2449242; 439451, 2449000; 437364, 2443298; 437363, 2443282; 438736, 2450325; 438427, 2450964; 439437, 2449023; 439437, 2449066; 437277, 2443228; 437144, 2443208; 438737, 2450311; 438425, 2451047; 439433, 2449078; 439421, 2449088; 437065, 2443211; 437060, 2443212; 438434, 2451069; 438455, 2451089; 439399, 2449097; 439382, 2449107; 436974, 2443182; 436997, 2443061; 438463, 2451098; 438475, 2451113; 439361, 2449126; 439330, 2449145; 438835, 2443883; 437808, 2443397; 438484, 2451141; 438486, 2451163; 440112, 2448732; 439277, 2449220; 435517, 2452192; 439910, 2445087; 438481, 2451188; 438472, 2451209; 439526, 2448944; 439244, 2449261; 436003, 2452334; 435955, 2452326; 440674, 2447485; 438472, 2450910; 439230, 2449287; 439220, 2449318; 435902, 2452378; 435838, 2452443; 438831, 2450010; 439025, 2449671; 439200, 2449362; 439167, 2449414; 435810, 2452427; 435719, 2452378; 439016, 2449687; 438999, 2449702; 439146, 2449435; 439114, 2449463; 435698, 2452376; 435477, 2452358; 438974, 2449738; 438965, 2449767; 439102, 2449480; 439076, 2449548; 436579, 2452559; 435479, 2452304; 438944, 2449813; 438919, 2449853; 442372, 2445885; 439307, 2449169; 436804, 2452559; 435519, 2452190; 438904, 2449863; 438894, 2449879; 439761, 2448926; 439044, 2449631; 435540, 2452168; 435631, 2452072; 438731, 2450342; 438850, 2449982; 440036, 2448815; 440000, 2448878; 435779, 2451881; 435895, 2451700; 438481, 2451287; 438816, 2450028; 439982, 2448899; 439961, 2448915; 435961, 2451591; 436027, 2451466; 438791, 2450036; 438765, 2450051; 439941, 2448924; 439922, 2448928; 436103, 2451262; 436162, 2451016; 438744, 2450081; 438730, 2450109; 439900, 2448928; 439875, 2448932; 436212, 2450766; 435478, 2452345; 438717, 2450158; 438716, 2450162; 439853, 2448941; 439508, 2448984; 438386, 2452854; 445955, 2442594; 438713, 2450206; 438717, 2450241; 439788, 2448929; 439516, 2448971; 445951, 2442593; 445907, 2442657; 438732, 2450286; 438884, 2449918; 439733, 2448930; 439697, 2448941; 444117, 2444107; 444088, 2444202; 438851, 2452395; 438467, 2451228; 439678, 2448950; 439656, 2448949; 444193, 2443965; 444117, 2444107; 438979, 2452233; 439031, 2452285; 439633, 2448940; 439611, 2448928; 438490, 2452605; 438476, 2452702; 439037, 2452297; 439061, 2452327; 439578, 2448906; 439553, 2448909; 436189, 2452365; 438430, 2452817; 439083, 2452342; 439138, 2452428; 439539, 2448922; 440089, 2448747; 436235, 2450550; 438269, 2452930; 439171, 2452514; 439201, 2452565; 439830, 2448945; 439685, 2444334; 438116, 2453088; 438110, 2453148; 438936, 2452213; 438954, 2452430; 440025, 2445056; 439890, 2444912; 438006, 2453313; 437935, 2453510; 438888, 2452163; 438816, 2452396; 439948, 2444922; 439994, 2444883; 437933, 2453512; 437797, 2453318; 438779, 2452391; 438716, 2452393; 440052, 2444784; 440032, 2444731; 437592, 2453026; 437202, 2452948; 438669, 2452384; 438605, 2452379; 439996, 2444642; 439945, 2444540; 437201, 2452932; 438465, 2452788; 438540, 2452374; 438510, 2452340; 439876, 2444423; 439859, 2444782; 443516, 2444546; 438927, 2444790; 438449, 2452330; 438431, 2452414; 439759, 2444342; 439859, 2444723; 438982, 2444746; 439037, 2444786; 438490, 2452605; 439114, 2452513; 439583, 2444266; 439456, 2444205; 439157, 2444829; 439238, 2444846; 438484, 2451690; 438485, 2451346; 439364, 2444192; 439298, 2444154; 439360, 2444907; 439434, 2444999; 438478, 2451359; 438454, 2451380; 439282, 2444110; 439268, 2444068; 439480, 2445095; 439484, 2445120; 438422, 2451414; 438410, 2451464; 439181, 2444032; 439094, 2444009; 436230, 2450590; 439598, 2445317; 438419, 2451509; 438435, 2451571; 439048, 2443913; 439043, 2443859; 438580, 2444854; 439794, 2445352;
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00157 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19116 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
439883, 2445309; 439994, 2445245; 437999, 2442211; 438000, 2442216; 434752, 2449405; 435080, 2449407; 440078, 2445204; 440165, 2445166; 438012, 2442229; 438030, 2442243; 435183, 2449401; 435232, 2449399; 440214, 2445151; 440216, 2445150; 438049, 2442246; 438065, 2442246; 434920, 2449394; 435236, 2449351; 440347, 2445106; 440289, 2445097; 438392, 2442294; 438095, 2442238; 434627, 2447088; 435266, 2448909; 440216, 2445076; 442301, 2445924; 437954, 2442136; 438114, 2442232; 435272, 2448835; 435282, 2448685; 437248, 2447657; 439699, 2445360; 438130, 2442234; 438157, 2442234; 435360, 2447538; 435295, 2447440; 436250, 2450410; 436234, 2450237; 438219, 2442244; 438238, 2442248; 435290, 2447449; 435093, 2447245; 436386, 2449952; 436472, 2449769; 438254, 2442248; 438305, 2442256; 434994, 2447085; 434795, 2447069; 436566, 2449560; 436566, 2449559; 438355, 2442265; 438373, 2442277; 434738, 2447030; 434738, 2447045; 436706, 2449252; 436739, 2449180; 438376, 2442278; 438088, 2442240; 434713, 2447038; 434686, 2447020; 436811, 2449026; 438807, 2444845; 437791, 2442074; 437705, 2441878; 435234, 2449384; 434884, 2449298; 437230, 2447713; 438677, 2444833; 437711, 2441887; 437717, 2441899; 434026, 2449951; 434034, 2449950; 437232, 2447645; 438168, 2444734; 437736, 2441928; 437740, 2441938; 434074, 2449972; 434844, 2449248; 438179, 2444732; 438263, 2444805; 437745, 2441950; 437747, 2441961; 434848, 2449239; 434872, 2449246; 438343, 2444896; 438406, 2444952; 437751, 2441981; 437754, 2441991; 434890, 2449251; 434908, 2449290; 438475, 2444955; 438523, 2444886; 437758, 2441998; 437984, 2442167; 434908, 2449290; 434948, 2449300; 438536, 2444858; 436234, 2450558; 437777, 2442052; 437973, 2442147; 435005, 2449310; 435010, 2449343; 437237, 2447714; 446348, 2441177; 437799, 2442084; 437806, 2442092; 433969, 2449958; 434898, 2449304; 441656, 2441573; 445235, 2441328; 437826, 2442106; 437839, 2442110; 435010, 2449343; 434881, 2449297; 445344, 2441376; 445392, 2441392; 437873, 2442121; 445395, 2441389; 434872, 2449294; 434833, 2449281; 445510, 2441194; 445551, 2441162; 437912, 2442123; 441650, 2441573; 434833, 2449280; 434833, 2449278; 445886, 2441308; 446122, 2441415; 437939, 2442128; 437926, 2442125; 434833, 2449278; 434834, 2449277; 446214, 2441291; 444560, 2441032; 437766, 2442017; 440002, 2440430; 434839, 2449258; 434842, 2449253; 446300, 2441227; 444480, 2440997; 438866, 2442347; 438934, 2442351; 434844, 2449248; 433339, 2449600; 446357, 2441185; 446375, 2441172; 438960, 2442270; 438967, 2442246; 434991, 2449344; 434938, 2449321; 446499, 2441271; 446610, 2441349; 438976, 2442220; 439037, 2442031; 433440, 2449604; 433460, 2449707; 446673, 2441408; 446651, 2441424; 439088, 2441871; 439096, 2441847; 433468, 2449706; 433484, 2449694; 446641, 2441436; 446587, 2441501; 439491, 2440617; 438838, 2442340; 433419, 2449599; 433461, 2449623; 446587, 2441543; 446640, 2441627; 439832, 2440430; 439556, 2440414; 433458, 2449707; 433455, 2449620; 446228, 2441279; 442977, 2441356; 440014, 2440441; 440110, 2440524; 433480, 2449629; 433437, 2449592; 441659, 2441579; 441727, 2441586; 440113, 2440527; 440114, 2440528; 433426, 2449556; 433903, 2449882; 441774, 2441575; 441900, 2441576; 440464, 2440832; 440528, 2440844; 435011, 2449352; 433401, 2449697; 441968, 2441515; 442287, 2441225; 438418, 2442311; 437887, 2442121; 433414, 2449628; 433457, 2449622; 442568, 2441274; 442723, 2441295; 440586, 2440905; 441637, 2441552; 433493, 2449765; 433831, 2449767; 442843, 2441314; 445124, 2441205; 439551, 2440431; 438535, 2442314; 433742, 2449724; 433461, 2449623; 442982, 2441350; 446591, 2442195; 438436, 2442321; 438453, 2442321; 433633, 2449724; 433467, 2449787; 443016, 2441342; 443023, 2441344; 438453, 2442321; 439931, 2440426; 433429, 2449741; 433408, 2449708; 443707, 2441132; 443889, 2441172; 438821, 2442339; 438460, 2442320; 433436, 2449707; 433436, 2449707; 444062, 2441230; 444083, 2441215; 438496, 2442310; 438433, 2442319; 433443, 2449707; 433444, 2449707; 444109, 2441224; 444113, 2441221; 438523, 2442310; 438536, 2442314; 433426, 2449707; 433445, 2449707. 444124, 2441223; 444455, 2440990; 438561, 2442316; 438577, 2442315; (3) This unit includes land bounded 442924, 2441340; 443628, 2444469; 438668, 2442322; 438704, 2442326; by the following UTM Zone 4, NAD83 443985, 2444416; 443769, 2444440; 438517, 2442310; 438721, 2442329; coordinates (E, N): 448881, 2447609; 443760, 2444446; 443740, 2444454; 438679, 2442324; 438656, 2442321; 449040, 2448659; 449045, 2448506; 443732, 2444458; 443722, 2444464; 438626, 2442315; 438757, 2442331; 449032, 2448326; 449044, 2448132; 443703, 2444469; 443685, 2444463; 438609, 2442314; 438694, 2442327. 449087, 2447916; 448981, 2446981; 443677, 2444459; 446686, 2441764; (2) This unit includes land bounded 448979, 2446983; 448980, 2446982; 443647, 2444460; 444075, 2444349; by the following UTM Zone 4, NAD 83 448980, 2446980; 449012, 2448822; 443617, 2444477; 443610, 2444483; coordinates (E, N): 433880, 2448827; 449105, 2447827; 448702, 2449395; 443598, 2444493; 443579, 2444514; 434279, 2447951; 434073, 2448685; 448235, 2448042; 448931, 2447092; 443571, 2444521; 443557, 2444532; 434228, 2448620; 434292, 2448479; 448577, 2449143; 448641, 2449184; 443553, 2444537; 443534, 2444543; 433725, 2448994; 434318, 2448298; 448610, 2449255; 448623, 2449141; 437697, 2441878; 439501, 2445220; 434357, 2447229; 434202, 2447345; 448613, 2449357; 448987, 2448959; 443666, 2444456; 445254, 2443156; 434086, 2447693; 434254, 2447886; 448812, 2449420; 448906, 2449440; 445380, 2441414; 446650, 2442430; 433546, 2449412; 434073, 2447500; 448959, 2449443; 448964, 2449425; 446675, 2442432; 446482, 2442513; 434163, 2447783; 434318, 2448182; 448952, 2449316; 448954, 2449143; 446373, 2442574; 446256, 2442602; 433545, 2449136; 433389, 2449256; 448593, 2449298; 448511, 2449199; 446100, 2442628; 445966, 2442725; 433567, 2449260; 433588, 2449244; 448321, 2447795; 448887, 2447191; 445808, 2442898; 445681, 2442977; 433599, 2449252; 433612, 2449262; 448577, 2449143; 448440, 2449296; 443984, 2444419; 445437, 2443077; 433567, 2449398; 433525, 2449415; 448382, 2449406; 448328, 2449449; 444016, 2444444; 445045, 2443240; 433448, 2449426; 434486, 2447126; 448242, 2449457; 448099, 2449454; 444824, 2443350; 444659, 2443447; 434498, 2449522; 433367, 2449352; 448059, 2449434; 448056, 2449368; 444532, 2443516; 444456, 2443572; 433339, 2449381; 433368, 2449293; 448091, 2449266; 448119, 2449134; 444423, 2443638; 444334, 2443811; 433589, 2449323; 435236, 2449347; 448122, 2449037; 448288, 2447915; 444237, 2444013; 444161, 2444181; 433313, 2449484; 434899, 2449305; 448834, 2447273; 448763, 2447342; 446694, 2442007; 445559, 2443010; 434074, 2449972; 434124, 2449948; 448088, 2448897; 448412, 2447653; 438098, 2442237; 437996, 2442188; 434137, 2449869; 434141, 2449863; 448669, 2447406; 448133, 2448200; 437998, 2442202; 437998, 2442205; 434208, 2449767; 434338, 2449660; 448042, 2448338; 447976, 2448470;
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00158 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations 19117
447943, 2448562; 447961, 2448628; 447636, 2443160; 447645, 2443146; 448464, 2444284; 448299, 2444289; 448037, 2448780; 448516, 2447525. 447894, 2443371; 447865, 2443358; 447925, 2444320; 447843, 2444325; (4) This unit includes land bounded 447712, 2443351; 447481, 2443262. 448458, 2443882; 447942, 2444178; by the following UTM Zone 4, NAD83 (5) This unit includes land bounded 448003, 2444015; 448008, 2443903; coordinates (E, N): 447249, 2443451; by the following UTM Zone 4, NAD83 447967, 2443867; 447932, 2443750; 447247, 2443586; 447295, 2443639; coordinates (E, N): 448470, 2443889; 447904, 2443646; 447921, 2443582; 447325, 2443651; 447556, 2443686; 448141, 2444294; 448479, 2443895; 447949, 2443460; 447939, 2443412; 447603, 2443646; 447616, 2443588; 448470, 2443888; 447864, 2444277; 447996, 2444312. 447631, 2443389; 447645, 2443143; 448479, 2443895; 448609, 2443974; 447623, 2443445; 447287, 2443339; 448591, 2444072; 448566, 2444172; (B) Note: Map 64a follows: 447374, 2443275; 447631, 2443389; 448548, 2444233; 448510, 2444279; BILLING CODE 4310–55–S
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00159 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19118 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
BILLING CODE 4310–55–C
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00160 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES ER13AP10.041 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations 19119
* * * * * 428996, 2446347; 430671, 2447997; 435564, 2451535; 435526, 2451558; 430690, 2447765; 430393, 2447748; 435488, 2451543; 435455, 2451520; (cxxxiii) Kauai 11–Canavalia 430242, 2447664; 430107, 2447429; 435379, 2451538; 435724, 2451110; napaliensis–b 430073, 2447126; 430793, 2448310; 434791, 2450099; 434415, 2450298; (A) This is a unit of the Lowland 430291, 2446570; 430886, 2448507; 434275, 2450082; 434315, 2450105; Mesic ecosystem and consists of 2,590 429871, 2446234; 429547, 2446209; 434354, 2450189; 434458, 2450344; ac (1,048 ha). This unit is also critical 429451, 2446226; 429357, 2446224; 434527, 2450344; 435649, 2450502; habitat for Kauai 11–Chamaesyce 429280, 2446207; 429242, 2446209; 434695, 2450176; 434198, 2450176; eleanoriae–b, Kauai 11–Chamaesyce 429160, 2446277; 428149, 2446847; 434834, 2450015; 434933, 2449939; remyi var. remyi–g, Kauai 11– 430124, 2446907; 431362, 2449169; 435091, 2449882; 435257, 2449864; Charpentiera densiflora–c, Kauai 11– 431520, 2449691; 431720, 2449620; 435432, 2449887; 435496, 2449915; Doryopteris angelica–b, Kauai 11– 431705, 2449569; 431769, 2449447; 435537, 2449994; 434578, 2450244; Dubautia kenwoodii–b, Kauai 11– 431727, 2449372; 431403, 2449436; 434504, 2450369. Labordia helleri–e, Kauai 11– 431322, 2449418; 430764, 2448188; Pittosporum napaliense–b, Kauai 11– 431391, 2449273; 428979, 2446425; (3) This unit includes land bounded Platydesma rostrata–g, Kauai 11– 431200, 2449070; 431205, 2448983; by the following UTM Zone 4, NAD83 Psychotria hobdyi–b, and Kauai 11– 431414, 2448890; 431629, 2448739; coordinates (E, N): 434600, 2453100; Tetraplasandra bisattenuata–c (see 431560, 2448675; 431171, 2448699; 434431, 2452829; 434289, 2452715; paragraphs (a)(1)(cxxxv), (a)(1)(cxliii), 430985, 2448705; 430903, 2448664; 434275, 2452687; 434275, 2452765; (a)(1)(cxlvii), (a)(1)(clxxvi), (a)(1)(clxxx), 431322, 2449372; 427039, 2447867; 434274, 2452895; 435095, 2453567; (a)(1)(ccxxiii), (a)(1)(cclxxii), 429036, 2446320; 427161, 2447669; 434458, 2453099; 434814, 2453088; (a)(1)(cclxxviii), (a)(1)(ccxcii), and 427157, 2447676; 427157, 2447711; 434628, 2453158; 434656, 2453260; (a)(1)(cccxxxii), respectively, of this 427165, 2447729; 427158, 2447803; 434769, 2453333; 434911, 2453349; section). 427133, 2447817; 427520, 2447201; 435025, 2453349; 434330, 2453055; (1) This unit includes land bounded 427039, 2447866; 427535, 2447190; 434735, 2453035; 435237, 2453582; by the following UTM Zone 4, NAD83 427001, 2447889; 426958, 2448061; 434890, 2453142; 434915, 2453139; coordinates (E, N): 429310, 2448345; 426963, 2448149; 427064, 2448142; 434902, 2452974; 434943, 2452791; 429679, 2448361; 427873, 2448495; 427235, 2448086; 427563, 2447928; 435055, 2452699; 435187, 2452668; 429992, 2448363; 428727, 2448356; 427677, 2447929; 427733, 2448045; 435284, 2452706; 435360, 2452826; 428429, 2448252; 428229, 2448295; 427108, 2447853; 428047, 2446484; 435353, 2452958; 435266, 2453062; 428072, 2448380; 429040, 2448343; 428831, 2446497; 428775, 2446510; 435177, 2453131; 435129, 2453220; 427702, 2448480; 427616, 2448566; 428706, 2446470; 428620, 2446396; 434569, 2452921; 435534, 2453517; 427957, 2448626; 428640, 2448616; 428570, 2446443; 428493, 2446458; 435067, 2453494; 435279, 2453583; 428497, 2448745; 430177, 2448336; 428399, 2446395; 427178, 2447664; 435145, 2453314; 435221, 2453373; 429127, 2448025; 428184, 2448758; 428248, 2446467; 427932, 2448032; 435488, 2453454; 435129, 2453220; 427985, 2448814; 428413, 2448542; 427784, 2446844; 429744, 2449390; 435626, 2453626; 435703, 2453748; 429801, 2448080; 430583, 2449736; 427992, 2446846; 431520, 2449691; 435563, 2453642; 435772, 2453903; 428239, 2449004; 428246, 2447831; 428177, 2446890; 428105, 2447006; 435792, 2453934; 435775, 2453963; 428459, 2447934; 428558, 2447963; 427906, 2447077; 427734, 2447192; 435675, 2453918; 435620, 2453730; 428771, 2448066; 428927, 2448067; 428326, 2446439; 429333, 2449272. 435741, 2453842; 435376, 2453408. 429511, 2447984; 429626, 2447973; (2) This unit includes land bounded (4) This unit includes land bounded 430131, 2448232; 429914, 2448112; by the following UTM Zone 4, NAD83 429866, 2448131; 430049, 2448165; by the following UTM Zone 4, NAD83 coordinates (E, N): 434084, 2450395; coordinates (E, N): 439159, 2453759; 430037, 2448217; 430042, 2448265; 434586, 2450652; 434573, 2450493; 430059, 2448285; 430092, 2448290; 439171, 2453735; 439242, 2453562; 434417, 2450376; 434288, 2450520; 439244, 2453448; 439043, 2454237; 430115, 2448276; 429340, 2447983; 434089, 2450518; 433962, 2450344; 430819, 2449646; 430408, 2449802; 439466, 2454892; 439468, 2454903; 435379, 2451538; 433998, 2450334; 439115, 2453850; 439485, 2454824; 430410, 2449802; 430405, 2449796; 434826, 2450972; 434156, 2450444; 428032, 2447946; 430527, 2449754; 439087, 2453909; 439065, 2454132; 434237, 2450456; 434288, 2450459; 439121, 2454259; 439243, 2454297; 427907, 2446845; 430635, 2449693; 434329, 2450469; 434298, 2450420; 439360, 2454300; 439454, 2454376; 430471, 2449787; 430720, 2449646; 434255, 2450337; 433951, 2450321; 439498, 2454643; 439296, 2454804; 430340, 2449778; 430899, 2449674; 435177, 2451612; 435402, 2451617; 439268, 2454731; 439480, 2454475; 430918, 2449717; 430904, 2449834; 435412, 2451678; 435318, 2451714; 438791, 2453685; 439211, 2454615; 430927, 2449905; 430948, 2449965; 435231, 2451780; 435178, 2451869; 439381, 2454833; 439016, 2454063; 431049, 2449934; 431249, 2449791; 435105, 2451886; 434656, 2450870; 439016, 2453962; 439002, 2453918; 430696, 2449656; 430016, 2449884; 435205, 2451713; 434640, 2451058; 438904, 2453772; 438791, 2453608; 429093, 2448894; 428893, 2449066; 435064, 2451510; 435050, 2451437; 438833, 2453598; 438870, 2453588; 428991, 2449270; 429489, 2449345; 435164, 2451394; 435165, 2451250; 438962, 2453532; 439041, 2453446; 429872, 2449507; 430071, 2449494; 435152, 2451105; 435053, 2450974; 430041, 2449682; 430392, 2449798; 434229, 2450100; 435091, 2451771; 439145, 2453405; 439244, 2453448; 430004, 2449889; 430365, 2449787; 435635, 2451403; 434201, 2450220; 439085, 2454310; 439001, 2454179; 430027, 2449878; 430068, 2449856; 435693, 2450581; 435744, 2450673; 439085, 2454397; 439098, 2454498; 430088, 2449848; 430172, 2449815; 435769, 2450813; 435762, 2450931; 438982, 2453510; 438946, 2453845; 430207, 2449804; 430261, 2449795; 435759, 2450963; 435608, 2450342; 439183, 2454600. 430317, 2449781; 428666, 2448993; 435676, 2451273; 435567, 2450146; (B) Note: Map 66a follows: 429941, 2449841; 430191, 2446386; 435602, 2451485; 435568, 2451531; BILLING CODE 4310–55–S
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00161 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19120 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
BILLING CODE 4310–55–C
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* * * * * 435549, 2449426; 435728, 2449514; 435537, 2451675; 435516, 2451752; 435183, 2449401; 435669, 2449472; 435744, 2452655; 435461, 2451989; (cxxxv) Kauai 11–Chamaesyce 435664, 2449469; 435598, 2449429; 435318, 2451714; 435472, 2452346; eleanoriae–b 435573, 2449422; 435517, 2449423; 435476, 2452390; 435474, 2452446; (A) See paragraph (a)(1)(cxxxiii)(A) of 435501, 2449420; 435498, 2449418; 435495, 2452579; 435560, 2452671; this section for the textual description of 435469, 2449405; 435420, 2449387; 435574, 2452690; 435596, 2452692; this unit. 435284, 2449396; 435232, 2449399; 435668, 2452695; 435284, 2452706; (B) See paragraph (a)(1)(cxxxiii)(B) of 435813, 2449619; 434834, 2450015; 435483, 2451879; 435031, 2452321; this section for the map of this unit. 434229, 2450100; 435257, 2449864; 434814, 2453088; 434735, 2453035; (cxxxvi) Kauai 11–Chamaesyce 434315, 2450105; 434354, 2450189; 434569, 2452921; 434431, 2452829; eleanoriae–c 434415, 2450298; 434458, 2450344; 434289, 2452715; 434275, 2452687; 435769, 2450813; 434504, 2450369; 434275, 2452664; 434475, 2452549; (A) This is a unit of the Dry Cliff 434527, 2450344; 434578, 2450244; 434646, 2452550; 435402, 2451617; ecosystem and consists of 712 ac (288 432904, 2450341; 434791, 2450099; 434902, 2452407; 435412, 2451678; ha). This unit is also critical habitat for Kauai 11–Lysimachia scopulensis–a, 434198, 2450176; 434933, 2449939; 435003, 2452190; 435131, 2452148; Kauai 11–Schiedea attenuata–a, and 435091, 2449882; 435892, 2449772; 435118, 2451988; 435062, 2451915; Kauai 11–Stenogyne kealiae–b (see 435432, 2449887; 435537, 2449994; 435105, 2451887; 435105, 2451886; paragraphs (a)(1)(ccxxxviii), 435567, 2450146; 435608, 2450342; 435178, 2451869; 435231, 2451780; (a)(1)(cccix), and (a)(1)(cccxxix), 435649, 2450502; 435693, 2450581; 435859, 2452647; 434789, 2452406; respectively, of this section). 435744, 2450673; 434695, 2450176; 435858, 2453212; 435772, 2453903; (1) This unit includes land bounded 433480, 2450152; 432882, 2450351; 435792, 2453934; 435807, 2453891; by the following UTM Zone 4, NAD83 432808, 2450383; 432852, 2450453; 435744, 2452655; 435812, 2453641; coordinates (E, N): 434920, 2449394; 432985, 2450649; 433015, 2450660; 435817, 2453489; 435839, 2453341; 434124, 2449948; 435916, 2450057; 433154, 2450657; 433185, 2450610; 435741, 2453842; 435880, 2453252; 434137, 2449869; 434141, 2449863; 433146, 2450539; 433093, 2450504; 435805, 2453913; 435833, 2453129; 434208, 2449767; 434338, 2449660; 434275, 2450082; 433237, 2450310; 435816, 2453051; 435815, 2452963; 434752, 2449405; 434074, 2449972; 434201, 2450220; 433807, 2450155; 435839, 2452896; 435922, 2452711; 433287, 2450063; 434498, 2449522; 433920, 2450257; 433951, 2450321; 435914, 2452704; 435912, 2452703; 434034, 2449950; 434026, 2449951; 433998, 2450334; 434084, 2450395; 435880, 2453252; 435353, 2452958; 433969, 2449958; 433903, 2449882; 434156, 2450444; 434237, 2450456; 435881, 2452670; 434890, 2453142; 433831, 2449767; 433742, 2449724; 434288, 2450459; 434329, 2450469; 434915, 2453139; 434902, 2452974; 433633, 2449724; 433493, 2449765; 434298, 2450420; 434255, 2450337; 434943, 2452791; 435802, 2453804; 435080, 2449407; 433353, 2449880; 433051, 2450468. 435360, 2452826; 435703, 2453748; 435576, 2449421; 433196, 2450196; (2) This unit includes land bounded 435266, 2453062; 435534, 2453517; 433467, 2449787; 435716, 2449506; by the following UTM Zone 4, NAD83 435187, 2452668; 435626, 2453626; 435496, 2449915; 433046, 2450280; coordinates (E, N): 435055, 2452699; 435177, 2453131; 435488, 2453454; 435915, 2449832; 435916, 2450057; 435912, 2452703; 435448, 2452106; 435376, 2453408; 435221, 2453373; 435762, 2450931; 435853, 2450609; 435379, 2451538; 435455, 2451520; 435145, 2453314; 435129, 2453220. 435876, 2450522; 435906, 2450349; 435488, 2451543; 435526, 2451558; (B) Note: Map 67a follows: 435908, 2450232; 435913, 2450123; 435564, 2451535; 435568, 2451531; BILLING CODE 4310–55–S
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00163 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19122 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
BILLING CODE 4310–55–C
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* * * * * 438617, 2452469; 439307, 2453234; 445009, 2444513; 445012, 2444375; 438540, 2452374; 439402, 2453308; 444988, 2444177; 445001, 2443989; (cxl) Kauai 11–Chamaesyce remyi var. 438669, 2452384; 438716, 2452393; 445072, 2443925; 445224, 2443866; kauaiensis–d 438779, 2452391; 438816, 2452396; 446305, 2445519; 446994, 2442927; (A) This is a unit of the Lowland Wet 438851, 2452395; 438954, 2452430; 446674, 2443625; 446456, 2443857; ecosystem and consists of 2,618 ac 439114, 2452513; 439201, 2452565; 446573, 2443696; 446918, 2444619; (1,060 ha). This unit is also critical 439225, 2452608; 439322, 2452763; 446771, 2443591; 446964, 2443367; habitat for Kauai 11–Chamaesyce remyi 438550, 2452386; 439705, 2455362; 446176, 2444094; 447035, 2443034; var. remyi–h, Kauai 11–Charpentiera 439372, 2452836; 441231, 2456494; 446024, 2444124; 446915, 2442876; densiflora–d, Kauai 11–Cyanea 440834, 2456579; 440867, 2456555; 446884, 2442866; 446775, 2442871; eleeleensis–b, Kauai 11–Cyanea 440437, 2456434; 440319, 2456582; 446694, 2442917; 446590, 2443009; kolekoleensis–b, Kauai 11–Cyanea 440302, 2456453; 440131, 2455839; 446526, 2443067; 446401, 2443101; kuhihewa–b, Kauai 11–Cyrtandra 439992, 2455240; 439972, 2455227; 447022, 2443176; 446142, 2444537; oenobarba–d, Kauai 11–Dubautia 439183, 2453214; 439766, 2455332; 446985, 2443802; 446860, 2443759; imbricata ssp. imbricata–b, Kauai 11– 441434, 2456415; 439659, 2455337; 446738, 2443759; 446647, 2443816; Labordia helleri–f, Kauai 11–Melicope 439664, 2455162; 439671, 2454996; 446614, 2443869; 446586, 2443953; paniculata–b, Kauai 11–Melicope 439635, 2454556; 439595, 2454252; 446533, 2444139; 446339, 2444002; puberula–d, Kauai 11–Phyllostegia 439571, 2454009; 439545, 2453798; 446342, 2444424; 447097, 2443835; renovans–d, Kauai 11–Platydesma 439499, 2453587; 439453, 2453425; 445951, 2444583; 445795, 2444540; rostrata–h, Kauai 11–Stenogyne 439827, 2455286. 445727, 2444471; 445716, 2444349; kealiae–c, Kauai 11–Tetraplasandra (2) This unit includes land bounded 445736, 2444232; 445790, 2444143; bisattenuata–d, and Kauai 11– by the following UTM Zone 4, NAD83 445920, 2444117; 446459, 2444299. Tetraplasandra flynii–d (see paragraphs coordinates (E, N): 437020, 2453189; (a)(1)(cxliv), (a)(1)(cxlviii), (a)(1)(cli), 435477, 2452358; 435941, 2452670; (4) This unit includes land bounded (a)(1)(clii), (a)(1)(cliii), (a)(1)(clxiii), 435881, 2452670; 435859, 2452647; by the following UTM Zone 4, NAD83 (a)(1)(clxxviii), (a)(1)(ccxxiv), 435744, 2452655; 435744, 2452655; coordinates (E, N): 448432, 2447019; (a)(1)(ccxlviii), (a)(1)(ccl), (a)(1)(cclxvii), 435668, 2452695; 435596, 2452692; 447903, 2444783; 448513, 2444734; (a)(1)(cclxxix), (a)(1)(cccxxx), 435579, 2452684; 435560, 2452671; 448070, 2445147; 447289, 2445280; (a)(1)(cccxxxiii), and (a)(1)(cccxxxv) 435495, 2452579; 436027, 2452670; 447290, 2445278; 447361, 2445143; respectively, of this section). 435476, 2452390; 435810, 2452427; 447455, 2445039; 448629, 2445470; (1) This unit includes land bounded 435698, 2452376; 435719, 2452378; 447763, 2444809; 448699, 2445511; by the following UTM Zone 4, NAD83 435838, 2452443; 435955, 2452326; 447992, 2444811; 448076, 2444859; coordinates (E, N): 439674, 2454816; 436003, 2452334; 436189, 2452365; 448152, 2444890; 448229, 2444872; 440829, 2456531; 440674, 2456209; 436579, 2452559; 436804, 2452559; 448272, 2444798; 448279, 2444742; 440674, 2456209; 440498, 2455883; 437201, 2452932; 437201, 2452932; 448386, 2444722; 447626, 2444886; 440318, 2455684; 440265, 2455650; 435474, 2452446; 437541, 2453313; 447985, 2447674; 448180, 2447012; 440437, 2456434; 441321, 2455601; 435902, 2452378; 436122, 2452693; 448099, 2447086; 448061, 2447208; 440968, 2454371; 441022, 2454452; 437202, 2452948; 437592, 2453026; 448030, 2447292; 447961, 2447328; 441060, 2454503; 441116, 2454605; 437797, 2453318; 437675, 2453322; 447898, 2447376; 448658, 2445334; 441175, 2454734; 441201, 2454902; 437408, 2453303; 437279, 2453284; 447964, 2447547; 447413, 2447271; 441196, 2455050; 441203, 2455144; 437072, 2453217; 437144, 2453246; 447960, 2447776; 447907, 2447792; 441204, 2455238; 439597, 2454271; 436929, 2453132; 436865, 2453080; 448254, 2446981; 447397, 2447323; 441257, 2455421; 440812, 2453929; 436370, 2452779; 436152, 2452704; 448180, 2447012; 448450, 2446319; 441354, 2455706; 441400, 2455825; 436156, 2452702; 437746, 2453322; 448577, 2445718; 447903, 2447455; 441459, 2455917; 441541, 2456046; 436849, 2453037; 436289, 2452750; 448762, 2446566; 449384, 2445679; 441561, 2456125; 441543, 2456184; 436289, 2452751; 436230, 2452707; 449351, 2445830; 449234, 2445954; 441556, 2456273; 441574, 2456339; 436547, 2452854; 436556, 2452755; 449125, 2446061; 449008, 2446171; 441574, 2456384; 441564, 2456402; 436617, 2452681; 436668, 2452719; 448932, 2446245; 449330, 2445539; 441227, 2455309; 439928, 2453312; 436783, 2452859. 448871, 2446421; 448828, 2446507; 439377, 2452849; 439390, 2452876; (3) This unit includes land bounded 448696, 2446769; 448661, 2446881; 439414, 2452909; 439464, 2452963; by the following UTM Zone 4, NAD83 448582, 2446983; 448518, 2447032; 439473, 2452985; 439481, 2453022; coordinates (E, N): 446053, 2443486; 448345, 2446991; 448661, 2444721; 439503, 2453046; 439553, 2453082; 445952, 2443580; 446981, 2444484; 447568, 2447493; 448889, 2446339; 439600, 2453107; 439618, 2453112; 446142, 2443241; 445804, 2443684; 449086, 2444624; 448760, 2444688; 440902, 2454287; 439788, 2453246; 446282, 2443149; 446918, 2444619; 448714, 2446647; 449284, 2445379; 440828, 2454112; 440061, 2453330; 446104, 2443348; 447039, 2444332; 448923, 2444619; 448956, 2444594; 440216, 2453312; 440430, 2453245; 447126, 2444222; 447271, 2444151; 440521, 2453222; 440539, 2453242; 447573, 2443995; 447576, 2443919; 449025, 2444591; 448854, 2444652; 440554, 2453392; 440588, 2453586; 445601, 2443759; 446555, 2445050; 449177, 2444680; 449226, 2444703; 440685, 2453700; 440805, 2453832; 447507, 2443875; 447387, 2443832; 449340, 2444954; 449294, 2444695; 441338, 2456446; 439646, 2453139; 447525, 2444041; 444938, 2444714; 449376, 2444651; 449391, 2444608; 438605, 2452379; 441501, 2456407; 446880, 2443495; 447257, 2443817; 449459, 2444635; 449346, 2444938; 439055, 2453168; 439012, 2453084; 446806, 2444770; 446697, 2444890; 449302, 2445178; 448981, 2444568; 438938, 2452886; 438872, 2452703; 446605, 2444969; 446565, 2445119; 449312, 2445026. 438787, 2452586; 439373, 2452840; 446615, 2445149; 446102, 2445409; (B) Note: Map 70a follows: 438691, 2452533; 438684, 2452527; 445418, 2443802; 444984, 2444620; BILLING CODE 4310–55–S
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(cxli) Kauai 11–Chamaesyce remyi var. 436107, 2450051; 436007, 2449993; Kauai 11–Chamaesyce remyi var. remyi– kauaiensis–e 435478, 2452345; 435913, 2450123; i, Kauai 11–Cyanea dolichopoda–c, (A) This is a unit of the Wet Cliff 435941, 2449899; 436186, 2450120; Kauai 11–Cyrtandra oenobarba–e, Kauai ecosystem and consists of 190 ac; 77 ha. 435635, 2451403; 435941, 2449899; 11–Cyrtandra paliku–c, Kauai 11– This unit includes land bounded by the 435915, 2449832; 435916, 2450057; Dubautia plantaginea ssp. magnifolia–c, following UTM Zone 4, NAD83 435908, 2450232; 435876, 2450522; Kauai 11–Lysimachia iniki–c, Kauai 11– coordinates (E, N): 436103, 2451262; 435853, 2450609; 435762, 2450931; Lysimachia pendens–c, Kauai 11– 436027, 2451466; 435961, 2451591; 435759, 2450963; 435906, 2450349; Lysimachia venosa–c, and Kauai 11– 435895, 2451700; 435779, 2451881; 435676, 2451273; 435477, 2452358; Platydesma rostrata–i (see paragraphs 435540, 2452168; 435479, 2452304; 435602, 2451485; 435568, 2451531; (a)(1)(cxlv), (a)(1)(cl), (a)(1)(clxiv), 436162, 2451016; 435519, 2452190; 435537, 2451675; 435516, 2451752; (a)(1)(clxv), (a)(1)(clxxxiv), 435517, 2452192; 435631, 2452072; 435483, 2451879; 435461, 2451989; (a)(1)(ccxxxvi), (a)(1)(ccxxxvii), 436212, 2450766; 436230, 2450590; 435448, 2452106; 435472, 2452346; (a)(1)(ccxxxix), and (a)(1)(cclxxx), 436234, 2450558; 436235, 2450550; 435476, 2452390; 435724, 2451110. respectively, of this section). 436250, 2450410; 436234, 2450237; This unit is also critical habitat for (B) Note: Map 70b follows:
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00167 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES 19126 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations
BILLING CODE 4310–55–C
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(cxlii) Kauai 11–Chamaesyce remyi var. coordinates (E, N): 434254, 2447886; 434292, 2448479; 434318, 2448298; remyi–f 430671, 2447997; 430191, 2445898; 434279, 2447951; 434163, 2447783; (A) See paragraph (a)(1)(cxxx)(A) of 429898, 2446100; 429871, 2446234; 433725, 2448994; 434073, 2447500; this section for the textual description of 430191, 2446386; 430291, 2446570; 433545, 2449136; 434357, 2447229; this unit. 430124, 2446907; 430073, 2447126; 434486, 2447126; 434627, 2447088; (B) See paragraph (a)(1)(cxxx)(B) of 430107, 2447429; 430242, 2447664; 434686, 2447020; 434682, 2447017; this section for the map of this unit. 431205, 2448983; 430690, 2447765; 434657, 2446977; 434652, 2446933; 430442, 2445640; 430764, 2448188; 434086, 2447693; 433401, 2449697; (cxliii) Kauai 11–Chamaesyce remyi var. 430793, 2448310; 430886, 2448507; 431875, 2449780; 432639, 2447624; remyi–g 430903, 2448664; 430985, 2448705; 433046, 2450280; 433196, 2450196; (A) See paragraph (a)(1)(cxxxiii)(A) of 431171, 2448699; 431560, 2448675; 433287, 2450063; 433353, 2449880; this section for the textual description of 431629, 2448739; 432609, 2447647; 433429, 2449741; 433880, 2448827; this unit. 430393, 2447748; 431069, 2446331; 433399, 2449709; 433408, 2449708; (B) See paragraph (a)(1)(cxxxiii)(B) of 432320, 2447497; 432195, 2447587; 433339, 2449600; 433313, 2449484; this section for the map of this unit. 432136, 2447629; 432133, 2447631; 433339, 2449381; 433368, 2449293; 433368, 2449292; 433369, 2449255; (cxliv) Kauai 11–Chamaesyce remyi var. 432081, 2447668; 432073, 2447674; 433389, 2449256; 433407, 2449708; remyi–h 432001, 2447726; 431323, 2447013; 431211, 2446394; 430204, 2445809; 433257, 2446958; 434392, 2446421; (A) See paragraph (a)(1)(cxl)(A) of this 431112, 2446394; 430323, 2445779; 434386, 2446429; 434103, 2446297; section for the textual description of this 431058, 2446300; 431007, 2446203; 434090, 2446098; 434086, 2446095; unit. 430944, 2446145; 430939, 2446061; 433862, 2446165; 433606, 2446193; (B) See paragraph (a)(1)(cxl)(B) of this 430902, 2445976; 430854, 2445930; 434400, 2446429; 433397, 2446440; section for the map of this unit. 430826, 2445805; 430857, 2445727; 432672, 2447598; 432918, 2447407; (cxlv) Kauai 11–Chamaesyce remyi var. 430824, 2445631; 431200, 2449070; 433577, 2447086; 433467, 2449787; remyi–i 431101, 2446447; 432882, 2450351; 433706, 2447138; 433746, 2447766; 433562, 2447841; 433527, 2447856; (A) See paragraph (a)(1)(cxli)(A) of 432579, 2450036; 432552, 2450080; 432551, 2450083; 432531, 2450116; 434641, 2446663; 433449, 2446235; this section for the textual description of 434533, 2446441; 434631, 2446528; this unit. 432534, 2450174; 432530, 2450196; 432565, 2450262; 432560, 2450267; 434623, 2446526; 434620, 2446512; (B) See paragraph (a)(1)(cxli)(B) of this 434628, 2446479; 434625, 2446467; section for the map of this unit. 432740, 2450249; 431414, 2448890; 432808, 2450383; 432486, 2449909; 434618, 2446459; 434201, 2446573; (cxlvi) Kauai 11–Chamaesyce remyi var. 432904, 2450341; 433046, 2450280; 434558, 2446439; 434403, 2446435; remyi–j 432827, 2447751; 432932, 2447668; 434514, 2446449; 434423, 2446441; (A) This is a unit of the Montane 433014, 2447717; 433109, 2447775; 434582, 2446443; 434416, 2446441; Mesic ecosystem and consists of 2,790 433094, 2447922; 432827, 2447751; 434500, 2446448; 434434, 2446428; ac (1,129 ha). This unit is also critical 434318, 2448182; 432796, 2450365; 434447, 2446420; 434457, 2446416; habitat for Kauai 11–Diellia mannii–a, 431904, 2449665; 431362, 2449169; 434471, 2446422. Kauai 11–Labordia helleri–g, Kauai 11– 431391, 2449273; 431322, 2449372; (2) This unit includes land bounded Myrsine knudsenii–a, Kauai 11–Myrsine 431322, 2449418; 431403, 2449436; by the following UTM Zone 4, NAD83 mezii–c, Kauai 11–Platydesma rostrata– 431727, 2449372; 431769, 2449447; coordinates (E, N): 431975, 2446280; j, Kauai 11–Psychotria grandiflora–c, 431705, 2449569; 431720, 2449620; 432548, 2444752; 432135, 2444807; Kauai 11–Stenogyne kealiae–d, and 432504, 2449961; 431919, 2449578; 432674, 2444970; 431873, 2444849; Kauai 11–Tetraplasandra flynnii–e (see 432498, 2449952; 432046, 2449781; 431730, 2445114; 431645, 2445326; paragraphs (a)(1)(clxxii), (a)(1)(ccxxv), 432052, 2449783; 432113, 2449740; 432001, 2445941; 431950, 2444792; (a)(1)(ccliii), (a)(1)(cclix), (a)(1)(cclxxxi), 432217, 2449712; 432251, 2449685; 432559, 2446255; 432659, 2446240; (a)(1)(ccxci), (a)(1)(ccxxxi), and 432259, 2449679; 432344, 2449744; 432948, 2446150; 433067, 2445928; (a)(1)(cccxxxvi), respectively, of this 432419, 2449806; 432441, 2449848; 432912, 2445580; 432758, 2445304; section). 431905, 2449660; 431805, 2449591; 432674, 2444970; 432377, 2444722. (1) This unit includes land bounded 434202, 2447345; 434612, 2446807; (B) Note: Map 70c follows: by the following UTM Zone 4, NAD83 434073, 2448685; 434228, 2448620; BILLING CODE 4310–55–S
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BILLING CODE 4310–55–C
VerDate Nov<24>2008 18:47 Apr 12, 2010 Jkt 220001 PO 00000 Frm 00170 Fmt 4701 Sfmt 4700 E:\FR\FM\13APR2.SGM 13APR2 sroberts on DSKD5P82C1PROD with RULES ER13AP10.046 Federal Register / Vol. 75, No. 70 / Tuesday, April 13, 2010 / Rules and Regulations 19129
(cxlvii) Kauai 11–Charpentiera (clxxii) Kauai 11–Diellia mannii–a (cxcix) Kauai 11–Geranium kauaiense– densiflora–c b (A) See paragraph (a)(1)(cxlvi)(A) of (A) See paragraph (a)(1)(cxxxiii)(A) of this section for the textual description of (A) See paragraph (a)(1)(cxxx)(A) of this section for the textual description of this unit. this section for the textual description of this unit. this unit. (B) See paragraph (a)(1)(cxlvi)(B) of (B) See paragraph (a)(1)(cxxxiii)(B) of (B) See paragraph (a)(1)(cxxx)(B) of this section for the map of this unit. this section for the map of this unit. this section for the map of this unit. * * * * * (cxlviii) Kauai 11–Charpentiera * * * * * (clxxvi) Kauai 11–Doryopteris angelica– densiflora–d (ccxvi) Kauai 11–Keysseria erici–b b (A) See paragraph (a)(1)(cxl)(A) of this (A) See paragraph (a)(1)(cxxx)(A) of section for the textual description of this (A) See paragraph (a)(1)(cxxxiii)(A) of this section for the textual description of unit. this section for the textual description of this unit. (B) See paragraph (a)(1)(cxl)(B) of this this unit. (B) See paragraph (a)(1)(cxxx)(B) of section for the map of this unit. (B) See paragraph (a)(1)(cxxxiii)(B) of this section for the map of this unit. * * * * * this section for the map of this unit. (ccxvii) Kauai 11–Keysseria helenae–b (cl) Kauai 11–Cyanea dolichopoda–c (clxxvii) Kauai 11–Dryopteris crinalis (A) See paragraph (a)(1)(cxxx)(A) of (A) See paragraph (a)(1)(cxli)(A) of var. podosorus–b this section for the textual description of this section for the textual description of (A) See paragraph (a)(1)(cxxx)(A) of this unit. this unit. this section for the textual description of (B) See paragraph (a)(1)(cxxx)(B) of (B) See paragraph (a)(1)(cxli)(B) of this this section for the map of this unit. section for the map of this unit. this unit. (B) See paragraph (a)(1)(cxxx)(B) of * * * * * (cli) Kauai 11–Cyanea eleeleensis–b this section for the map of this unit. (ccxxii) Kauai 11–Labordia helleri–d (A) See paragraph (a)(1)(cxl)(A) of this (clxxviii) Kauai 11–Dubautia imbricata (A) See paragraph (a)(1)(cxxx)(A) of section for the textual description of this ssp. imbricata–b this section for the textual description of unit. this unit. (B) See paragraph (a)(1)(cxl)(B) of this (A) See paragraph (a)(1)(cxl)(A) of this section for the map of this unit. (B) See paragraph (a)(1)(cxxx)(B) of section for the textual description of this this section for the map of this unit. (clii) Kauai 11–Cyanea kolekoleensis–b unit. (ccxxiii) Kauai 11–Labordia helleri–e (A) See paragraph (a)(1)(cxl)(A) of this (B) See paragraph (a)(1)(cxl)(B) of this section for the textual description of this section for the map of this unit. (A) See paragraph (a)(1)(cxxxiii)(A) of this section for the textual description of unit. (clxxix) Kauai 11–Dubautia this unit. (B) See paragraph (a)(1)(cxl)(B) of this kalalauensis–b section for the map of this unit. (B) See paragraph (a)(1)(cxxxiii)(B) of (A) See paragraph (a)(1)(cxxx)(A) of this section for the map of this unit. (cliii) Kauai 11–Cyanea kuhihewa–b this section for the textual description of (ccxxiv) Kauai 11–Labordia helleri–f (A) See paragraph (a)(1)(cxl)(A) of this this unit. (A) See paragraph (a)(1)(cxl)(A) of this section for the textual description of this (B) See paragraph (a)(1)(cxxx)(B) of section for the textual description of this unit. this section for the map of this unit. (B) See paragraph (a)(1)(cxl)(B) of this unit. section for the map of this unit. (clxxx) Kauai 11–Dubautia kenwoodii–b (B) See paragraph (a)(1)(cxl)(B) of this section for the map of this unit. * * * * * (A) See paragraph (a)(1)(cxxxiii)(A) of (clxiii) Kauai 11–Cyrtandra oenobarba– this section for the textual description of (ccxxv) Kauai 11–Labordia helleri–g d this unit. (A) See paragraph (a)(1)(cxlvi)(A) of (A) See paragraph (a)(1)(cxl)(A) of this (B) See paragraph (a)(1)(cxxxiii)(B) of this section for the textual description of section for the textual description of this this section for the map of this unit. this unit. unit. * * * * * (B) See paragraph (a)(1)(cxlvi)(B) of this section for the map of this unit. (B) See paragraph (a)(1)(cxl)(B) of this (clxxxiv) Kauai 11–Dubautia * * * * * section for the map of this unit. plantaginea ssp. magnifolia–c (clxiv) Kauai 11–Cyrtandra oenobarba– (ccxxix) Kauai 11–Labordia pumila–b (A) See paragraph (a)(1)(cxli)(A) of e this section for the textual description of (A) See paragraph (a)(1)(cxxx)(A) of (A) See paragraph (a)(1)(cxli)(A) of this unit. this section for the textual description of this unit. this section for the textual description of (B) See paragraph (a)(1)(cxli)(B) of this (B) See paragraph (a)(1)(cxxx)(B) of this unit. section for the map of this unit. (B) See paragraph (a)(1)(cxli)(B) of this this section for the map of this unit. section for the map of this unit. (clxxxv) Kauai 11–Dubautia waialealae– * * * * * b (clxv) Kauai 11–Cyrtandra paliku–c (ccxxxv) Kauai 11–Lysimachia (A) See paragraph (a)(1)(cxli)(A) of (A) See paragraph (a)(1)(cxxx)(A) of daphnoides–b this section for the textual description of this section for the textual description of (A) See paragraph (a)(1)(cxxx)(A) of this unit. this unit. this section for the textual description of (B) See paragraph (a)(1)(cxli)(B) of this (B) See paragraph (a)(1)(cxxx)(B) of this unit. section for the map of this unit. this section for the map of this unit. (B) See paragraph (a)(1)(cxxx)(B) of * * * * * * * * * * this section for the map of this unit.
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(ccxxxvi) Kauai 11–Lysimachia iniki–c (B) See paragraph (a)(1)(cxlvi)(B) of (cclxxx) Kauai 11–Platydesma rostrata– this section for the map of this unit. i (A) See paragraph (a)(1)(cxli)(A) of this section for the textual description of * * * * * (A) See paragraph (a)(1)(cxli)(A) of this unit. (cclviii) Kauai 11–Myrsine mezii–b this section for the textual description of (B) See paragraph (a)(1)(cxli)(B) of this this unit. section for the map of this unit. (A) See paragraph (a)(1)(cxxx)(A) of (B) See paragraph (a)(1)(cxli)(B) of this this section for the textual description of section for the map of this unit. (ccxxxvii) Kauai 11–Lysimachia this unit. pendens–c (B) See paragraph (a)(1)(cxxx)(B) of (cclxxxi) Kauai 11–Platydesma rostrata– j (A) See paragraph (a)(1)(cxli)(A) of this section for the map of this unit. (A) See paragraph (a)(1)(cxlvi)(A) of this section for the textual description of (cclix) Kauai 11–Myrsine mezii–c this unit. this section for the textual description of (A) See paragraph (a)(1)(cxlvi)(A) of (B) See paragraph (a)(1)(cxli)(B) of this this unit. this section for the textual description of (B) See paragraph (a)(1)(cxlvi)(B) of section for the map of this unit. this unit. this section for the map of this unit. (ccxxxviii) Kauai 11–Lysimachia (B) See paragraph (a)(1)(cxlvi)(B) of * * * * * scopulensis–a this section for the map of this unit. (ccxc) Kauai 11–Psychotria grandiflora– * * * * * (A) See paragraph (a)(1)(cxxxvi)(A) of b this section for the textual description of (cclxvi) Kauai 11–Phyllostegia this unit. (A) See paragraph (a)(1)(cxxx)(A) of renovans–c this section for the textual description of (B) See paragraph (a)(1)(cxxxvi)(B) of this unit. this section for the map of this unit. (A) See paragraph (a)(1)(cxxx)(A) of this section for the textual description of (B) See paragraph (a)(1)(cxxx)(B) of (ccxxxix) Kauai 11–Lysimachia venosa– this unit. this section for the map of this unit. c (B) See paragraph (a)(1)(cxxx)(B) of (ccxci) Kauai 11–Psychotria (A) See paragraph (a)(1)(cxli)(A) of this section for the map of this unit. grandiflora–c this section for the textual description of (cclxvii) Kauai 11–Phyllostegia (A) See paragraph (a)(1)(cxlvi)(A) of this unit. renovans–d this section for the textual description of (B) See paragraph (a)(1)(cxli)(B) of this (A) See paragraph (a)(1)(cxl)(A) of this this unit. section for the map of this unit. section for the textual description of this (B) See paragraph (a)(1)(cxlvi)(B) of * * * * * unit. this section for the map of this unit. (ccxli) Kauai 11–Melicope degeneri–b (B) See paragraph (a)(1)(cxl)(B) of this (ccxcii) Kauai 11–Psychotria hobdyi–b section for the map of this unit. (A) See paragraph (a)(1)(cxxx)(A) of (A) See paragraph (a)(1)(cxxxiii)(A) of this section for the textual description of * * * * * this section for the textual description of this unit. (cclxxii) Kauai 11–Pittosporum this unit. (B) See paragraph (a)(1)(cxxx)(B) of napaliense–b (B) See paragraph (a)(1)(cxxxiii)(B) of this section for the map of this unit. this section for the map of this unit. (A) See paragraph (a)(1)(cxxxiii)(A) of * * * * * this section for the textual description of * * * * * (ccxlviii) Kauai 11–Melicope this unit. (cccix) Kauai 11–Schiedea attenuata–a paniculata–b (B) See paragraph (a)(1)(cxxxiii)(B) of (A) See paragraph (a)(1)(cxxxvi)(A) of this section for the map of this unit. (A) See paragraph (a)(1)(cxl)(A) of this this section for the textual description of * * * * * section for the textual description of this this unit. unit. (cclxxvii) Kauai 11–Platydesma (B) See paragraph (a)(1)(cxxxvi)(B) of (B) See paragraph (a)(1)(cxl)(B) of this rostrata–f this section for the map of this unit. * * * * * section for the map of this unit. (A) See paragraph (a)(1)(cxxx)(A) of (ccxlix) Kauai 11–Melicope puberula–c this section for the textual description of (cccxxix) Kauai 11–Stenogyne kealiae–b this unit. (A) See paragraph (a)(1)(cxxx)(A) of (A) See paragraph (a)(1)(cxxxvi)(A) of (B) See paragraph (a)(1)(cxxx)(B) of this section for the textual description of this section for the textual description of this section for the map of this unit. this unit. this unit. (B) See paragraph (a)(1)(cxxx)(B) of (cclxxviii) Kauai 11–Platydesma (B) See paragraph (a)(1)(cxxxvi)(B) of this section for the map of this unit. rostrata–g this section for the map of this unit. (ccl) Kauai 11–Melicope puberula–d (A) See paragraph (a)(1)(cxxxiii)(A) of (cccxxx) Kauai 11–Stenogyne kealiae–c this section for the textual description of (A) See paragraph (a)(1)(cxl)(A) of this (A) See paragraph (a)(1)(cxl)(A) of this this unit. section for the textual description of this section for the textual description of this (B) See paragraph (a)(1)(cxxxiii)(B) of unit. unit. this section for the map of this unit. (B) See paragraph (a)(1)(cxl)(B) of this (B) See paragraph (a)(1)(cxl)(B) of this section for the map of this unit. section for the map of this unit. (cclxxix) Kauai 11–Platydesma rostrata– h * * * * * (cccxxxi) Kauai 11–Stenogyne kealiae–d (A) See paragraph (a)(1)(cxl)(A) of this (A) See paragraph (a)(1)(cxlvi)(A) of (ccliii) Kauai 11–Myrsine knudsenii–a section for the textual description of this this section for the textual description of (A) See paragraph (a)(1)(cxlvi)(A) of unit. this unit. this section for the textual description of (B) See paragraph (a)(1)(cxl)(B) of this (B) See paragraph (a)(1)(cxlvi)(B) of this unit. section for the map of this unit. this section for the map of this unit.
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(cccxxxii) Kauai 11–Tetraplasandra (B) See paragraph (a)(1)(cxlvi)(B) of 450148, 2440581; 450981, 2440954; bisattenuata–c this section for the map of this unit. 450959, 2441758; 450649, 2441819; (A) See paragraph (a)(1)(cxxxiii)(A) of * * * * * 450519, 2441677; 450483, 2441603; 450567, 2441606; 450649, 2441639; this section for the textual description of (cccli) Kauai 18—Chamaesyce remyi 450942, 2442140; 450855, 2441735; this unit. var. kauaiensis–f (B) See paragraph (a)(1)(cxxxiii)(B) of 450807, 2441995; 451040, 2441587; this section for the map of this unit. (A) This is a unit of the Wet Cliff 451048, 2441778; 451104, 2441763; ecosystem and consists of 296 ac (120 451135, 2441750; 451127, 2441727; (cccxxxiii) Kauai 11–Tetraplasandra ha). This unit includes lands bounded bisattenuata–d 451071, 2441643; 450459, 2442263; by the following UTM Zone 4, NAD83 451207, 2442613; 450538, 2442344; (A) See paragraph (a)(1)(cxl)(A) of this coordinates (E, N): 450192, 2441100; 450573, 2442334; 450550, 2442082; section for the textual description of this 450045, 2441036; 449907, 2441014; 450540, 2442051; 450598, 2442069; unit. 449732, 2441017; 449661, 2441029; 450759, 2442234; 450927, 2442387; (B) See paragraph (a)(1)(cxl)(B) of this 449662, 2441006; 449663, 2440988; 451072, 2442509; 451307, 2442664; section for the map of this unit. 450391, 2441245; 449861, 2440726; 451370, 2442679; 451385, 2442651; 450358, 2441446; 449987, 2440561; (cccxxxiv) Kauai 11–Tetraplasandra 451299, 2442539; 451115, 2442323; flynnii–c 449861, 2440726; 450478, 2441377; 450009, 2440531; 450480, 2441446; 450942, 2442140. This unit is also (A) See paragraph (a)(1)(cxxx)(A) of 450309, 2440710; 450188, 2441428; critical habitat for Kauai 18– this section for the textual description of 450030, 2441469; 449977, 2441622; Chamaesyce remyi var. remyi–k, Kauai this unit. 450043, 2441776; 450987, 2441509; 18–Cyanea dolichopoda–d, Kauai 18– (B) See paragraph (a)(1)(cxxx)(B) of 450061, 2441818; 451012, 2441536; Cyrtandra oenobarba–f, Kauai 18– this section for the map of this unit. 450204, 2441935; 450313, 2442034; Cyrtandra paliku–d, Kauai 18–Dubautia (cccxxxv) Kauai 11–Tetraplasandra 450493, 2441438; 450738, 2441687; plantaginea ssp. magnifolia–d, Kauai flynnii–d 450390, 2442146; 450854, 2441404; 18–Lysimachia iniki–d, Kauai 18– (A) See paragraph (a)(1)(cxl)(A) of this 450786, 2441366; 450732, 2441298; Lysimachia pendens–d, Kauai 18– section for the textual description of this 450694, 2441214; 450762, 2441153; Lysimachia venosa–d, and Kauai 18– unit. 450892, 2441119; 450971, 2441101; Platydesma rostrata–k (see paragraphs (B) See paragraph (a)(1)(cxl)(B) of this 451006, 2441096; 451065, 2441045; (a)(1)(ccclii), (a)(1)(cccliii), (a)(1)(cccliv), section for the map of this unit. 451024, 2440992; 450235, 2440578; (a)(1)(ccclv), (a)(1)(ccclvi), 451009, 2440898; 450036, 2440543; (a)(1)(ccclvii), (a)(1)(ccclviii), (cccxxxvi) Kauai 11–Tetraplasandra 450976, 2440839; 450923, 2441455; (a)(1)(ccclix), and (a)(1)(ccclx), flynnii–e 450866, 2440829; 450759, 2440839; respectively, of this section). (A) See paragraph (a)(1)(cxlvi)(A) of 450630, 2440857; 450492, 2440870; (B) Note: Map 217a follows: this section for the textual description of 450439, 2440863; 450352, 2440802; this unit. 450263, 2440642; 450209, 2440565; BILLING CODE 4310–55–S
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BILLING CODE 4310–55–C
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(ccclii) Kauai 18–Chamaesyce remyi var. (B) See paragraph (a)(1)(cccli)(B) of This unit includes land bounded by the remyi–k this section for the map of this unit. following UTM Zone 4, NAD83 (A) See paragraph (a)(1)(cccli)(A) of (ccclvii) Kauai 18–Lysimachia iniki–d coordinates (E, N): 457006, 2449562; this section for the textual description of 456297, 2449627; 456152, 2449645; this unit. (A) See paragraph (a)(1)(cccli)(A) of 456213, 2449635; 456892, 2449577; (B) See paragraph (a)(1)(cccli)(B) of this section for the textual description of 456297, 2449627; 456355, 2449622; this section for the map of this unit. this unit. 456429, 2449624; 456528, 2449621; (B) See paragraph (a)(1)(cccli)(B) of 456587, 2449619; 456683, 2449611; (cccliii) Kauai 18–Cyanea dolichopoda– this section for the map of this unit. d 457144, 2449549; 456823, 2449588; (ccclviii) Kauai 18–Lysimachia 456116, 2449661; 457123, 2449562; (A) See paragraph (a)(1)(cccli)(A) of pendens–d 456901, 2449549; 456313, 2449442; this section for the textual description of 456256, 2449472; 456187, 2449533; this unit. (A) See paragraph (a)(1)(cccli)(A) of (B) See paragraph (a)(1)(cccli)(B) of this section for the textual description of 456154, 2449589; 456126, 2449635; this section for the map of this unit. this unit. 456742, 2449603. This unit is also (B) See paragraph (a)(1)(cccli)(B) of critical habitat for Kauai 19– (cccliv)Kauai 18–Cyrtandra oenobarba– this section for the map of this unit. Chamaesyce remyi var. remyi–l, Kauai f 19–Cyanea dolichopoda–e, Kauai 19– (ccclix) Kauai 18–Lysimachia venosa–d (A) See paragraph (a)(1)(cccli)(A) of Cyrtandra oenobarba–g, Kauai 19– this section for the textual description of (A) See paragraph (a)(1)(cccli)(A) of Cyrtandra paliku–e, Kauai 19–Dubautia this unit. this section for the textual description of plantaginea ssp. magnifolia–e, Kauai (B) See paragraph (a)(1)(cccli)(B) of this unit. 19–Lysimachia iniki–e, Kauai 19– this section for the map of this unit. (B) See paragraph (a)(1)(cccli)(B) of Lysimachia pendens–e, Kauai 19– this section for the map of this unit. (ccclv) Kauai 18–Cyrtandra paliku–d Lysimachia venosa–e, and Kauai 19– (ccclx) Kauai 18–Platydesma rostrata–k (A) See paragraph (a)(1)(cccli)(A) of Platydesma rostrata–l (see paragraphs this section for the textual description of (A) See paragraph (a)(1)(cccli)(A) of (a)(1)(ccclxii), (a)(1)(ccclxiii), this unit. this section for the textual description of (a)(1)(ccclxiv), (a)(1)(ccclxv), (B) See paragraph (a)(1)(cccli)(B) of this unit. (a)(1)(ccclxvi), (a)(1)(ccclxvii), this section for the map of this unit. (B) See paragraph (a)(1)(cccli)(B) of (a)(1)(ccclxviii), (a)(1)(ccclxix), and this section for the map of this unit. (a)(1)(ccclxx), respectively, of this (ccclvi) Kauai 18–Dubautia plantaginea section). ssp. magnifolia–d (ccclxi) Kauai 19–Chamaesyce remyi (B) Note: Map 217b follows: (A) See paragraph (a)(1)(cccli)(A) of var. kauaiensis–g BILLING CODE 4310–55–S this section for the textual description of (A) This is a unit of the Wet Cliff this unit. ecosystem and consists of 23 ac (9 ha).
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BILLING CODE 4310–55–C
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(ccclxii) Kauai 19–Chamaesyce remyi (ccclxvii) Kauai 19–Lysimachia iniki–e coordinates (E, N): 440498, 2455883; var. remyi–l (A) See paragraph (a)(1)(ccclxi)(A) of 440674, 2456209; 440674, 2456209; (A) See paragraph (a)(1)(ccclxi)(A) of this section for the textual description of 440829, 2456531; 440867, 2456555; this section for the textual description of this unit. 440834, 2456579; 440382, 2456676; this unit. (B) See paragraph (a)(1)(ccclxi)(B) of 440343, 2456672; 440329, 2456652; (B) See paragraph (a)(1)(ccclxi)(B) of this section for the map of this unit. 440319, 2456582; 440437, 2456434; this section for the map of this unit. 440265, 2455650; 440318, 2455684; (ccclxviii) Kauai 19–Lysimachia 440318, 2455684. This unit is also (ccclxiii) Kauai 19–Cyanea pendens–e dolichopoda–e critical habitat for Kauai 20– (A) See paragraph (a)(1)(ccclxi)(A) of Chamaesyce remyi var. remyi–m, Kauai (A) See paragraph (a)(1)(ccclxi)(A) of this section for the textual description of 20–Charpentiera densiflora–e, Kauai this section for the textual description of this unit. 20–Cyanea eleeleensis–c, Kauai 20– this unit. (B) See paragraph (a)(1)(ccclxi)(B) of Cyanea kolekoleensis–c, Kauai 20– (B) See paragraph (a)(1)(ccclxi)(B) of this section for the map of this unit. this section for the map of this unit. Cyanea kuhihewa–c, Kauai 20– (ccclxix) Kauai 19–Lysimachia venosa– Cyrtandra oenobarba–h, Kauai 20– (ccclxiv) Kauai 19–Cyrtandra e Dubautia imbricata ssp. imbricata–c, oenobarba–g Kauai 20–Labordia helleri–h, Kauai 20– (A) See paragraph (a)(1)(ccclxi)(A) of (A) See paragraph (a)(1)(ccclxi)(A) of Melicope paniculata–c, Kauai 20– this section for the textual description of this section for the textual description of Melicope puberula–e, Kauai 20– this unit. this unit. Phyllostegia renovans–e, Kauai 20– (B) See paragraph (a)(1)(ccclxi)(B) of (B) See paragraph (a)(1)(ccclxi)(B) of this section for the map of this unit. Platydesma rostrata–m, Kauai 20– this section for the map of this unit. Stenogyne kealiae–e, Kauai 20– (ccclxv) Kauai 19–Cyrtandra paliku–e (ccclxx) Kauai 19–Platydesma rostrata– Tetraplasandra bisattenuata–e, and l (A) See paragraph (a)(1)(ccclxi)(A) of Kauai 20–Tetraplasandra flynnii–f, (see this section for the textual description of (A) See paragraph (a)(1)(ccclxi)(A) of paragraphs (a)(1)(ccclxxii), this unit. this section for the textual description of (a)(1)(ccclxxiii), (a)(1)(ccclxxiv), (B) See paragraph (a)(1)(ccclxi)(B) of this unit. (a)(1)(ccclxxv), (a)(1)(ccclxxvi), this section for the map of this unit. (B) See paragraph (a)(1)(ccclxi)(B) of (a)(1)(ccclxxvii), (a)(1)(ccclxxviii), this section for the map of this unit. (a)(1)(ccclxxix), (a)(1)(ccclxxx), (ccclxvi) Kauai 19–Dubautia (a)(1)(ccclxxxi), (a)(1)(ccclxxxii), plantaginea ssp. magnifolia–e (ccclxxi) Kauai 20–Chamaesyce remyi var. kauaiensis–h (a)(1)(ccclxxxiii), (a)(1)(ccclxxxiv), (A) See paragraph (a)(1)(ccclxi)(A) of (a)(1)(ccclxxxv), and (a)(1)(ccclxxxvi), this section for the textual description of (A) This is a unit of the Lowland Wet respectively, of this section). this unit. ecosystem and consists of 65 ac (26 ha). (B) See paragraph (a)(1)(ccclxi)(B) of This unit includes land bounded by the (B) Note: Map 217c follows: this section for the map of this unit. following UTM Zone 4, NAD83 BILLING CODE 4310–55–S
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(ccclxxii) Kauai 20–Chamaesyce remyi (ccclxxviii) Kauai 20–Dubautia (ccclxxxiv) Kauai 20–Stenogyne var. remyi–m imbricata ssp. imbricata–c kealiae–e (A) See paragraph (a)(1)(ccclxxi)(A) of (A) See paragraph (a)(1)(ccclxxi)(A) of (A) See paragraph (a)(1)(ccclxxi)(A) of this section for the textual description of this section for the textual description of this section for the textual description of this unit. this unit. this unit. (B) See paragraph (a)(1)(ccclxxi)(B) of (B) See paragraph (a)(1)(ccclxxi)(B) of (B) See paragraph (a)(1)(ccclxxi)(B) of this section for the map of this unit. this section for the map of this unit. this section for the map of this unit. (ccclxxxv) Kauai 20–Tetraplasandra (ccclxxiii) Kauai 20–Charpentiera (ccclxxix) Kauai 20–Labordia helleri–h densiflora–e bisattenuata–e (A) See paragraph (a)(1)(ccclxxi)(A) of (A) See paragraph (a)(1)(ccclxxi)(A) of (A) See paragraph (a)(1)(ccclxxi)(A) of this section for the textual description of this section for the textual description of this section for the textual description of this unit. this unit. this unit. (B) See paragraph (a)(1)(ccclxxi)(B) of (B) See paragraph (a)(1)(ccclxxi)(B) of (B) See paragraph (a)(1)(ccclxxi)(B) of this section for the map of this unit. this section for the map of this unit. this section for the map of this unit. (ccclxxx) Kauai 20–Melicope (ccclxxxvi) Kauai 20–Tetraplasandra (ccclxxiv) Kauai 20–Cyanea eleeleensis– paniculata–c flynnii–f c (A) See paragraph (a)(1)(ccclxxi)(A) of (A) See paragraph (a)(1)(ccclxxi)(A) of (A) See paragraph (a)(1)(ccclxxi)(A) of this section for the textual description of this section for the textual description of this section for the textual description of this unit. this unit. this unit. (B) See paragraph (a)(1)(ccclxxi)(B) of (B) See paragraph (a)(1)(ccclxxi)(B) of (B) See paragraph (a)(1)(ccclxxi)(B) of this section for the map of this unit. this section for the map of this unit. this section for the map of this unit. (ccclxxxvii) Kauai 21–Chamaesyce (ccclxxxi) Kauai 20–Melicope puberula– (ccclxxv) Kauai 20–Cyanea remyi var. remyi–n e kolekoleensis–c (A) This is a unit of the Montane (A) See paragraph (a)(1)(ccclxxi)(A) of (A) See paragraph (a)(1)(ccclxxi)(A) of Mesic ecosystem and consists of 8 ac (3 this section for the textual description of this section for the textual description of ha). This unit includes land bounded by this unit. this unit. the following UTM Zone 4, NAD83 coordinates (E, N): 431626, 2445435; (B) See paragraph (a)(1)(ccclxxi)(B) of (B) See paragraph (a)(1)(ccclxxi)(B) of 432001, 2445941; 431736, 2445617; this section for the map of this unit. this section for the map of this unit. 432001, 2445941; 431645, 2445326. (ccclxxvi) Kauai 20–Cyanea kuhihewa– (ccclxxxii) Kauai 20–Phyllostegia This unit is also critical habitat for c renovans–e Kauai 21–Diellia mannii–b, Kauai 21– (A) See paragraph (a)(1)(ccclxxi)(A) of Labordia helleri–i, Kauai 21–Myrsine (A) See paragraph (a)(1)(ccclxxi)(A) of knudsenii–b, Kauai 21–Myrsine mezii– this section for the textual description of this section for the textual description of this unit. d, Kauai 21–Platydesma rostrata–n, this unit. Kauai 21–Psychotria grandiflora–d, (B) See paragraph (a)(1)(ccclxxi)(B) of (B) See paragraph (a)(1)(ccclxxi)(B) of Kauai 21–Stenogyne kealiae–f, and this section for the map of this unit. this section for the map of this unit. Kauai 21–Tetraplasandra flynnii–g (see (ccclxxvii) Kauai 20–Cyrtandra (ccclxxxiii) Kauai 20–Platydesma paragraphs (a)(1)(ccclxxxviii), oenobarba–h rostrata–m (a)(1)(ccclxxxix), (a)(1)(cccxc), (a)(1)(cccxci), (a)(1)(cccxcii), (A) See paragraph (a)(1)(ccclxxi)(A) of (A) See paragraph (a)(1)(ccclxxi)(A) of (a)(1)(cccxciii), (a)(1)(cccxciv), and this section for the textual description of this section for the textual description of (a)(1)(cccxcv), respectively, of this this unit. this unit. section). (B) See paragraph (a)(1)(ccclxxi)(B) of (B) See paragraph (a)(1)(ccclxxi)(B) of (B) Note: Map 217d follows: this section for the map of this unit. this section for the map of this unit. BILLING CODE 4310–55–S
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(ccclxxxviii) Kauai 21–Diellia mannii–b (B) See paragraph (a)(1)(ccclxxxvii)(B) 2440389; 437687, 2439960; 438227, (A) See paragraph of this section for the map of this unit. 2440730; 438149, 2440714; 438111, (a)(1)(ccclxxxvii)(A) of this section for (cccxciii) Kauai 21–Psychotria 2440652; 438112, 2440588; 438028, the textual description of this unit. grandiflora–d 2440577; 438243, 2440830; 438014, (B) See paragraph (a)(1)(ccclxxxvii)(B) 2440437; 438253, 2440854; 437922, of this section for the map of this unit. (A) See paragraph 2440355; 437912, 2440201; 437870, (a)(1)(ccclxxxvii)(A) of this section for 2440140; 437827, 2440132; 437817, (ccclxxxix) Kauai 21–Labordia helleri–i the textual description of this unit. 2440071; 437785, 2440013; 438023, (A) See paragraph (B) See paragraph (a)(1)(ccclxxxvii)(B) of this section for the map of this unit. 2440484; 437335, 2440180; 437586, (a)(1)(ccclxxxvii)(A) of this section for 2439743; 437636, 2439819; 437586, the textual description of this unit. (cccxciv) Kauai 21–Stenogyne kealiae–f 2439743; 437529, 2439721; 438287, (B) See paragraph (a)(1)(ccclxxxvii)(B) 2440738; 437450, 2440047; 437335, of this section for the map of this unit. (A) See paragraph (a)(1)(ccclxxxvii)(A) of this section for 2440329; 437336, 2440335; 437602, (cccxc) Kauai 21–Myrsine knudsenii–b the textual description of this unit. 2440771; 437987, 2441027; 438159, (A) See paragraph (B) See paragraph (a)(1)(ccclxxxvii)(B) 2440914; 438249, 2440857; 437545, (a)(1)(ccclxxxvii)(A) of this section for of this section for the map of this unit. 2439761. This unit is also critical the textual description of this unit. (cccxcv) Kauai 21–Tetraplasandra habitat for Kauai 22–Diellia mannii–c, (B) See paragraph (a)(1)(ccclxxxvii)(B) flynnii–g Kauai 22–Labordia helleri–j, Kauai 22– of this section for the map of this unit. Myrsine knudsenii–c, Kauai 22–Myrsine (A) See paragraph mezii–e, Kauai 22–Platydesma rostrata– (cccxci) Kauai 21–Myrsine mezii–d (a)(1)(ccclxxxvii)(A) of this section for o, Kauai 22–Psychotria grandiflora–e, (A) See paragraph the textual description of this unit. Kauai 22–Stenogyne kealiae–g, and (a)(1)(ccclxxxvii)(A) of this section for (B) See paragraph (a)(1)(ccclxxxvii)(B) Kauai 22–Tetraplasandra flynnii–h (see the textual description of this unit. of this section for the map of this unit. (B) See paragraph (a)(1)(ccclxxxvii)(B) paragraphs (a)(1)(cccxcvii), (cccxcvi) Kauai 22–Chamaesyce remyi of this section for the map of this unit. (a)(1)(cccxcviii), (a)(1)(cccxcix), var. remyi–o (a)(1)(cd), (a)(1)(cdi), (a)(1)(cdii), (cccxcii) Kauai 21–Platydesma rostrata– (A) This is a unit of the Montane (a)(1)(cdiii), and (a)(1)(cdiv), o Mesic ecosystem and consists of 139 ac respectively, of this section). (A) See paragraph (56 ha). This unit includes land (B) Note: Map 217e follows: (a)(1)(ccclxxxvii)(A) of this section for bounded by the following UTM Zone 4, BILLING CODE 4310–55–S the textual description of this unit. NAD83 coordinates (E, N): 438012,
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(cccxcvii) Kauai 22–Diellia mannii–c (B) See paragraph (a)(1)(cccxcvi)(B) of 444088, 2444202. This unit is also (A) See paragraph (a)(1)(cccxcvi)(A) of this section for the map of this unit. critical habitat for Kauai 23– this section for the textual description of (cdii) Kauai 22–Psychotria grandiflora– Chamaesyce remyi var. remyi–p, Kauai this unit. e 23–Dryopteris crinalis var. podosorus–c, (B) See paragraph (a)(1)(cccxcvi)(B) of Kauai 23–Dubautia kalalauensis–c, this section for the map of this unit. (A) See paragraph (a)(1)(cccxcvi)(A) of Kauai 23–Dubautia waialealae–c, Kauai this section for the textual description of 23–Geranium kauaiense–c, Kauai 23– (cccxcviii) Kauai 22–Labordia helleri–j this unit. Keysseria erici–c, Kauai 23–Keysseria (A) See paragraph (a)(1)(cccxcvi)(A) of (B) See paragraph (a)(1)(cccxcvi)(B) of this section for the map of this unit. helenae–c, Kauai 23–Labordia helleri–k, this section for the textual description of Kauai 23–Labordia pumila–c, Kauai 23– this unit. (cdiii) Kauai 22–Stenogyne kealiae–g Lysimachia daphnoides–c, Kauai 23– (B) See paragraph (a)(1)(cccxcvi)(B) of Melicope degeneri–c, Kauai 23– this section for the map of this unit. (A) See paragraph (a)(1)(cccxcvi)(A) of this section for the textual description of Melicope puberula–f, Kauai 23–Myrsine (cccxcix) Kauai 22–Myrsine knudsenii– this unit. mezii–f, Kauai 23–Phyllostegia c (B) See paragraph (a)(1)(cccxcvi)(B) of renovans–f, Kauai 23–Platydesma (A) See paragraph (a)(1)(cccxcvi)(A) of this section for the map of this unit. rostrata–p, Kauai 23–Psychotria this section for the textual description of (cdiv) Kauai 22–Tetraplasandra flynnii– grandiflora–f, and Kauai 23– this unit. h Tetraplasandra flynnii–i (see paragraphs (B) See paragraph (a)(1)(cccxcvi)(B) of (a)(1)(cdvi), (a)(1)(cdvii), (a)(1)(cdviii), this section for the map of this unit. (A) See paragraph (a)(1)(cccxcvi)(A) of (a)(1)(cdix), (a)(1)(cdx), (a)(1)(cdxi), this section for the textual description of (a)(1)(cdxii), (a)(1)(cdxiii), (a)(1)(cdxiv), (cd) Kauai 22–Myrsine mezii–e this unit. (a)(1)(cdxv), (a)(1)(cdxvi), (a)(1)(cdxvii), (A) See paragraph (a)(1)(cccxcvi)(A) of (B) See paragraph (a)(1)(cccxcvi)(B) of (a)(1)(cdxviii), (a)(1)(cdxix), (a)(1)(cdxx), this section for the textual description of this section for the map of this unit. (a)(1)(cdxxi), and (a)(1)(cdxxii), this unit. (cdv) Kauai 23–Astelia waialealae–c (B) See paragraph (a)(1)(cccxcvi)(B) of respectively, of this section). this section for the map of this unit. (A) This is a unit of the Montane Wet (B) Note: Map 217f follows: ecosystem and consists of 0.4 ac (0.2 BILLING CODE 4310–55–S (cdi) Kauai 22–Platydesma rostrata–o ha). This unit includes land bounded by (A) See paragraph (a)(1)(cccxcvi)(A) of the following UTM Zone 4, NAD83 this section for the textual description of coordinates (E, N): 444193, 2443965; this unit. 444088, 2444202; 444117, 2444107;
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BILLING CODE 4310–55–C
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(cdvi) Kauai 23–Chamaesyce remyi var. (B) See paragraph (a)(1)(cdv)(B) of this (cdxxi) Kauai 23–Psychotria remyi–p section for the map of this unit. grandiflora–f (A) See paragraph (a)(1)(cdv)(A) of (cdxiv) Kauai 23–Labordia pumila–c (A) See paragraph (a)(1)(cdv)(A) of this section for the textual description of this section for the textual description of (A) See paragraph (a)(1)(cdv)(A) of this unit. this unit. (B) See paragraph (a)(1)(cdv)(B) of this this section for the textual description of (B) See paragraph (a)(1)(cdv)(B) of this section for the map of this unit. this unit. (B) See paragraph (a)(1)(cdv)(B) of this section for the map of this unit. (cdvii) Kauai 23–Dryopteris crinalis var. section for the map of this unit. podosorus–c (cdxxii) Kauai 23–Tetraplasandra flynnii–i (A) See paragraph (a)(1)(cdv)(A) of (cdxv) Kauai 23–Lysimachia this section for the textual description of daphnoides–c (A) See paragraph (a)(1)(cdv)(A) of this unit. (A) See paragraph (a)(1)(cdv)(A) of this section for the textual description of (B) See paragraph (a)(1)(cdv)(B) of this this section for the textual description of this unit. section for the map of this unit. this unit. (B) See paragraph (a)(1)(cdv)(B) of this (cdviii) Kauai 23–Dubautia (B) See paragraph (a)(1)(cdv)(B) of this section for the map of this unit. kalalauensis–c section for the map of this unit. (cdxxiii) Kauai 24–Astelia waialealae–d (A) See paragraph (a)(1)(cdv)(A) of (cdxvi) Kauai 23–Melicope degeneri–c (A) This is a unit of the Montane Wet this section for the textual description of (A) See paragraph (a)(1)(cdv)(A) of ecosystem and consists of 0.04 ac (0.01 this unit. ha). This unit includes land bounded by (B) See paragraph (a)(1)(cdv)(B) of this this section for the textual description of this unit. the following UTM Zone 4, NAD83 section for the map of this unit. coordinates (E, N): 445955, 2442594; (B) See paragraph (a)(1)(cdv)(B) of this (cdix) Kauai 23–Dubautia waialealae–c 445955, 2442594; 445951, 2442593; section for the map of this unit. (A) See paragraph (a)(1)(cdv)(A) of 445907, 2442657. This unit is also this section for the textual description of (cdxvii) Kauai 23–Melicope puberula–f critical habitat for Kauai 24– Chamaesyce remyi var. remyi–q, Kauai this unit. (A) See paragraph (a)(1)(cdv)(A) of 24–Dryopteris crinalis var. podosorus–d, (B) See paragraph (a)(1)(cdv)(B) of this this section for the textual description of Kauai 24–Dubautia kalalauensis–d, section for the map of this unit. this unit. Kauai 24–Dubautia waialealae–d, Kauai (cdx) Kauai 23–Geranium kauaiense–c (B) See paragraph (a)(1)(cdv)(B) of this 24–Geranium kauaiense–d, Kauai 24– (A) See paragraph (a)(1)(cdv)(A) of section for the map of this unit. Keysseria erici–d, Kauai 24–Keysseria this section for the textual description of (cdxviii) Kauai 23–Myrsine mezii–f helenae–d, Kauai 24–Labordia helleri–l, this unit. Kauai 24–Labordia pumila–d, Kauai 24– (B) See paragraph (a)(1)(cdv)(B) of this (A) See paragraph (a)(1)(cdv)(A) of Lysimachia daphnoides–d, Kauai 24– section for the map of this unit. this section for the textual description of Melicope degeneri–d, Kauai 24– this unit. (cdxi) Kauai 23–Keysseria erici–c Melicope puberula–g, Kauai 24–Myrsine (B) See paragraph (a)(1)(cdv)(B) of this mezii–g, Kauai 24–Phyllostegia (A) See paragraph (a)(1)(cdv)(A) of section for the map of this unit. renovans–g, Kauai 24–Platydesma this section for the textual description of rostrata–q, Kauai 24–Psychotria this unit. (cdxix) Kauai 23–Phyllostegia renovans–f grandiflora–g, and Kauai 24– (B) See paragraph (a)(1)(cdv)(B) of this Tetraplasandra flynnii–j (see paragraphs section for the map of this unit. (A) See paragraph (a)(1)(cdv)(A) of (a)(1)(cdxxiv), (a)(1)(cdxxv), (cdxii) Kauai 23–Keysseria helenae–c this section for the textual description of (a)(1)(cdxxvi), (a)(1)(cdxxvii), this unit. (a)(1)(cdxxviii), (a)(1)(cdxxix), (A) See paragraph (a)(1)(cdv)(A) of this section for the textual description of (B) See paragraph (a)(1)(cdv)(B) of this (a)(1)(cdxxx), (a)(1)(cdxxxi), this unit. section for the map of this unit. (a)(1)(cdxxxii), (a)(1)(cdxxxiii), (a)(1)(cdxxxiv), (a)(1)(cdxxxv), (B) See paragraph (a)(1)(cdv)(B) of this (cdxx) Kauai 23–Platydesma rostrata–p section for the map of this unit. (a)(1)(cdxxxvi), (a)(1)(cdxxxvii), (A) See paragraph (a)(1)(cdv)(A) of (a)(1)(cdxxxviii), (a)(1)(cdxxxix), and (cdxiii) Kauai 23–Labordia helleri–k this section for the textual description of (a)(1)(cdxl), respectively, of this (A) See paragraph (a)(1)(cdv)(A) of this unit. section). this section for the textual description of (B) See paragraph (a)(1)(cdv)(B) of this (B) Note: Map 217g follows: this unit. section for the map of this unit. BILLING CODE 4310–55–S
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BILLING CODE 4310–55–C
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(cdxxiv) Kauai 24–Chamaesyce remyi (cdxxxiii) Kauai 24–Lysimachia 448440, 2442604; 448443, 2442627; var. remyi–q daphnoides–d 448443, 2442636; 448447, 2442663; 448447, 2442675; 448447, 2442688; (A) See paragraph (a)(1)(cdxxiii)(A) of (A) See paragraph (a)(1)(cdxxiii)(A) of 448443, 2442699; 448437, 2442711; this section for the textual description of this section for the textual description of 448438, 2442565; 448428, 2442738; this unit. this unit. 448464, 2442531; 448431, 2442766; (B) See paragraph (a)(1)(cdxxiii)(B) of (B) See paragraph (a)(1)(cdxxiii)(B) of 448432, 2442775; 448435, 2442791; this section for the map of this unit. this section for the map of this unit. 448437, 2442805; 448442, 2442821; (cdxxv) Kauai 24–Dryopteris crinalis (cdxxxiv) Kauai 24–Melicope degeneri– 448462, 2442858; 448432, 2442727; var. podosorus–d d 448536, 2442523; 448481, 2442894; 448637, 2442455; 448634, 2442459; (A) See paragraph (a)(1)(cdxxiii)(A) of (A) See paragraph (a)(1)(cdxxiii)(A) of 448623, 2442466; 448615, 2442472; this section for the textual description of this section for the textual description of 448602, 2442477; 448587, 2442486; this unit. this unit. (B) See paragraph (a)(1)(cdxxiii)(B) of 448449, 2442536; 448550, 2442513; (B) See paragraph (a)(1)(cdxxiii)(B) of this section for the map of this unit. 448441, 2442549; 448530, 2442527; this section for the map of this unit. 448515, 2442533; 448505, 2442534; (cdxxxv) Kauai 24–Melicope puberula– (cdxxvi) Kauai 24–Dubautia 448488, 2442531; 448474, 2442530; g kalalauensis–d 448455, 2442534; 448880, 2442563; (A) See paragraph (a)(1)(cdxxiii)(A) of 448566, 2442503; 448512, 2443792; (A) See paragraph (a)(1)(cdxxiii)(A) of this section for the textual description of 448522, 2443706; 448507, 2443727; this section for the textual description of this unit. 448504, 2443735; 448502, 2443743; this unit. (B) See paragraph (a)(1)(cdxxiii)(B) of 448504, 2443752; 448509, 2443760; (B) See paragraph (a)(1)(cdxxiii)(B) of this section for the map of this unit. 448513, 2443769; 448669, 2443477; this section for the map of this unit. (cdxxxvi) Kauai 24–Myrsine mezii–g 448512, 2443783; 448552, 2443643; (cdxxvii) Kauai 24–Dubautia 448500, 2443823; 448473, 2443878; waialealae–d (A) See paragraph (a)(1)(cdxxiii)(A) of 448470, 2443888; 448479, 2443895; this section for the textual description of 448609, 2443974; 448614, 2443950; (A) See paragraph (a)(1)(cdxxiii)(A) of this unit. 448634, 2443800; 448469, 2442871; this section for the textual description of (B) See paragraph (a)(1)(cdxxiii)(B) of 448513, 2443779; 448518, 2443559; this unit. this section for the map of this unit. 448588, 2443466; 448591, 2443484; (B) See paragraph (a)(1)(cdxxiii)(B) of 448589, 2443493; 448582, 2443508; this section for the map of this unit. (cdxxxvii) Kauai 24–Phyllostegia renovans–g 448577, 2443516; 448569, 2443527; 448560, 2443535; 448553, 2443539; (cdxxviii) Kauai 24–Geranium (A) See paragraph (a)(1)(cdxxiii)(A) of kauaiense–e 448538, 2443682; 448518, 2443552; this section for the textual description of 448546, 2443665; 448523, 2443570; (A) See paragraph (a)(1)(cdxxiii)(A) of this unit. 448527, 2443576; 448533, 2443587; (B) See paragraph (a)(1)(cdxxiii)(B) of this section for the textual description of 448544, 2443601; 448549, 2443613; this section for the map of this unit. this unit. 448551, 2443621; 448552, 2443630; (B) See paragraph (a)(1)(cdxxiii)(B) of (cdxxxviii) Kauai 24–Platydesma 448674, 2443301; 448528, 2443546; this section for the map of this unit. rostrata–q 448579, 2443112; 448587, 2443214; (cdxxix) Kauai 24–Keysseria erici–d (A) See paragraph (a)(1)(cdxxiii)(A) of 448586, 2443203; 448582, 2443190; 448582, 2443172; 448582, 2443162; (A) See paragraph (a)(1)(cdxxiii)(A) of this section for the textual description of this unit. 448583, 2443151; 448585, 2443140; this section for the textual description of 448657, 2443629; 448585, 2443122; this unit. (B) See paragraph (a)(1)(cdxxiii)(B) of this section for the map of this unit. 448592, 2443254; 448562, 2443086; (B) See paragraph (a)(1)(cdxxiii)(B) of 448545, 2443051; 448529, 2443019; this section for the map of this unit. (cdxxxix) Kauai 24–Psychotria 448507, 2442976; 448498, 2442952; (cdxxx) Kauai 24–Keysseria helenae–d grandiflora–g 448490, 2442930; 448486, 2442910; (A) See paragraph (a)(1)(cdxxiii)(A) of 448585, 2443461; 448586, 2443129; (A) See paragraph (a)(1)(cdxxiii)(A) of this section for the textual description of 448584, 2443388; 448651, 2443187; this section for the textual description of this unit. 448653, 2443075; 448696, 2442955; this unit. (B) See paragraph (a)(1)(cdxxiii)(B) of 448765, 2442787; 448805, 2442677; (B) See paragraph (a)(1)(cdxxiii)(B) of this section for the map of this unit. 448861, 2442593; 448880, 2442563; this section for the map of this unit. 448578, 2443441; 448589, 2443224; (cdxl) Kauai 24–Tetraplasandra flynnii– (cdxxxi) Kauai 24–Labordia helleri–l 448576, 2443405; 448591, 2443241; j 448590, 2443369; 448595, 2443352; (A) See paragraph (a)(1)(cdxxiii)(A) of (A) See paragraph (a)(1)(cdxxiii)(A) of 448593, 2443325; 448590, 2443306; this section for the textual description of this section for the textual description of 448591, 2443291; 448592, 2443277; this unit. this unit. 448592, 2443261; 448477, 2442887; (B) See paragraph (a)(1)(cdxxiii)(B) of (B) See paragraph (a)(1)(cdxxiii)(B) of 448572, 2443417. This unit is also this section for the map of this unit. this section for the map of this unit. critical habitat for Kauai 25– (cdxxxii) Kauai 24–Labordia pumila–d Chamaesyce remyi var. remyi–r, Kauai (cdxli) Kauai 25–Astelia waialealae–e 25–Dryopteris crinalis var. podosorus–e, (A) See paragraph (a)(1)(cdxxiii)(A) of (A) This is a unit of the Montane Wet Kauai 25–Dubautia kalalauensis–e, this section for the textual description of ecosystem and consists of 64 ac (26 ha). Kauai 25–Dubautia waialealae–e, Kauai this unit. This unit includes land bounded by the 25–Geranium kauaiense–e, Kauai 25– (B) See paragraph (a)(1)(cdxxiii)(B) of following UTM Zone 4, NAD83 Keysseria erici–e, Kauai 25–Keysseria this section for the map of this unit. coordinates (E, N): 448428, 2442750; helenae–e, Kauai 25–Labordia helleri–
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m, Kauai 25–Labordia pumila–e, Kauai grandiflora–h, and Kauai 25– (a)(1)(cdliv), (a)(1)(cdlv), (a)(1)(cdlvi), 25–Lysimachia daphnoides–e, Kauai Tetraplasandra flynnii–k (see (a)(1)(cdlvii), and (a)(1)(cdlviii), 25–Melicope degeneri–e, Kauai 25– paragraphs (a)(1)(cdxlii), (a)(1)(cdxliii), respectively, of this section). Melicope puberula–h, Kauai 25–Myrsine (a)(1)(cdxliv), (a)(1)(cdxlv), (B) Note: Map 217h follows: mezii–h, Kauai 25–Phyllostegia (a)(1)(cdxlvi), (a)(1)(cdxlvii), BILLING CODE 4310–55–S renovans–h, Kauai 25–Platydesma (a)(1)(cdxlviii), (a)(1)(cdxlix), (a)(1)(cdl), rostrata–r, Kauai 25–Psychotria (a)(1)(cdli), (a)(1)(cdlii), (a)(1)(cdliii),
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BILLING CODE 4310–55–C
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(cdxlii) Kauai 25–Chamaesyce remyi (B) See paragraph (a)(1)(cdxli)(B) of (B) See paragraph (a)(1)(cdxli)(B) of var. remyi–r this section for the map of this unit. this section for the map of this unit. (A) See paragraph (a)(1)(cdxli)(A) of (cdxlviii) Kauai 25–Keysseria helenae–e (cdliv) Kauai 25–Myrsine mezii–h this section for the textual description of this unit. (A) See paragraph (a)(1)(cdxli)(A) of (A) See paragraph (a)(1)(cdxli)(A) of (B) See paragraph (a)(1)(cdxli)(B) of this section for the textual description of this section for the textual description of this section for the map of this unit. this unit. this unit. (B) See paragraph (a)(1)(cdxli)(B) of (cdxliii) Kauai 25–Dryopteris crinalis this section for the map of this unit. (B) See paragraph (a)(1)(cdxli)(B) of var. podosorus–e this section for the map of this unit. (cdxlix) Kauai 25–Labordia helleri–m (A) See paragraph (a)(1)(cdxli)(A) of (cdlv) Kauai 25–Phyllostegia renovans– this section for the textual description of (A) See paragraph (a)(1)(cdxli)(A) of h this unit. this section for the textual description of (B) See paragraph (a)(1)(cdxli)(B) of this unit. (A) See paragraph (a)(1)(cdxli)(A) of this section for the map of this unit. (B) See paragraph (a)(1)(cdxli)(B) of this section for the textual description of this unit. (cdxliv) Kauai 25–Dubautia this section for the map of this unit. kalalauensis–d (cdl) Kauai 25–Labordia pumila–e (B) See paragraph (a)(1)(cdxli)(B) of this section for the map of this unit. (A) See paragraph (a)(1)(cdxli)(A) of (A) See paragraph (a)(1)(cdxli)(A) of this section for the textual description of this section for the textual description of (cdlvi) Kauai 25–Platydesma rostrata–r this unit. this unit. (A) See paragraph (a)(1)(cdxli)(A) of (B) See paragraph (a)(1)(cdxli)(B) of (B) See paragraph (a)(1)(cdxli)(B) of this section for the map of this unit. this section for the textual description of this section for the map of this unit. this unit. (cdxlv) Kauai 25–Dubautia waialealae– (cdli) Kauai 25–Lysimachia e (B) See paragraph (a)(1)(cdxli)(B) of daphnoides–e this section for the map of this unit. (A) See paragraph (a)(1)(cdxli)(A) of (A) See paragraph (a)(1)(cdxli)(A) of this section for the textual description of (cdlvii) Kauai 25–Psychotria this section for the textual description of this unit. grandiflora–h (B) See paragraph (a)(1)(cdxli)(B) of this unit. this section for the map of this unit. (B) See paragraph (a)(1)(cdxli)(B) of (A) See paragraph (a)(1)(cdxli)(A) of this section for the map of this unit. this section for the textual description of (cdxlvi) Kauai 25–Geranium kauaiense– this unit. f (cdlii) Kauai 25–Melicope degeneri–e (B) See paragraph (a)(1)(cdxli)(B) of (A) See paragraph (a)(1)(cdxli)(A) of (A) See paragraph (a)(1)(cdxli)(A) of this section for the map of this unit. this section for the textual description of this section for the textual description of this unit. this unit. (cdlviii) Kauai 25–Tetraplasandra (B) See paragraph (a)(1)(cdxli)(B) of (B) See paragraph (a)(1)(cdxli)(B) of flynnii–k this section for the map of this unit. this section for the map of this unit. (A) See paragraph (a)(1)(cdxli)(A) of (cdxlvii) Kauai 25–Keysseria erici–e (cdliii) Kauai 25–Melicope puberula–h this section for the textual description of (A) See paragraph (a)(1)(cdxli)(A) of (A) See paragraph (a)(1)(cdxli)(A) of this unit. this section for the textual description of this section for the textual description of (B) See paragraph (a)(1)(cdxli)(B) of this unit. this unit. this section for the map of this unit. (CDLIX) TABLE OF PROTECTED SPECIES WITHIN EACH CRITICAL HABITAT UNIT FOR KAUAI
Unit name Species occupied Species unoccupied
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Kauai 4–Chamaesyce remyi var. kauaiensis–a Chamaesyce remyi var. kauaiensis
Kauai 4–Chamaesyce remyi var. remyi–a Chamaesyce remyi var. remyi
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Kauai 4–Cyanea dolichopoda–a Cyanea dolichopoda
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Kauai 4–Cyrtandra oenobarba–a Cyrtandra oenobarba
Kauai 4–Cyrtandra paliku–a Cyrtandra paliku Cyrtandra paliku
Kauai 4–Dubautia plantaginea ssp. magnifolia–a Dubautia plantaginea ssp. magnifolia
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Kauai 4–Lysimachia iniki–a Lysimachia iniki
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(CDLIX) TABLE OF PROTECTED SPECIES WITHIN EACH CRITICAL HABITAT UNIT FOR KAUAI—Continued
Unit name Species occupied Species unoccupied
Kauai 4–Lysimachia pendens–a Lysimachia pendens
Kauai 4–Lysimachia venosa–a Lysimachia venosa
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Kauai 4–Platydesma rostrata–a Platydesma rostrata
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Kauai 7–Canavalia napaliensis–a Canavalia napaliensis
Kauai 7–Chamaesyce eleanoriae–a Chamaesyce eleanoriae
Kauai 7–Chamaesyce remyi var. remyi–b Chamaesyce remyi var. remyi Chamaesyce remyi var. remyi
Kauai 7–Charpentiera densiflora–a Charpentiera densiflora
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Kauai 7–Doryopteris angelica–a Doryopteris angelica
Kauai 7–Dubautia kenwoodii–a Dubautia kenwoodii
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Kauai 7–Labordia helleri–a Labordia helleri
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Kauai 7–Pittosporum napaliense–a Pittosporum napaliense
Kauai 7–Platydesma rostrata–b Platydesma rostrata
Kauai 7–Psychotria hobdyi–a Psychotria hobdyi
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Kauai 7–Tetraplasandra bisattenuata–a Tetraplasandra bisattenuata Tetraplasandra bisattenuata
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Kauai 10–Astelia waialealae–a Astelia waialealae Astelia waialealae
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Kauai 10–Chamaesyce remyi var. kauaiensis–b Chamaesyce remyi var. kauaiensis
Kauai 10–Chamaesyce remyi var. kauaiensis–c Chamaesyce remyi var. Chamaesyce remyi var. kauaiensis kauaiensis
Kauai 10–Chamaesyce remyi var. remyi–c Chamaesyce remyi var. remyi Chamaesyce remyi var. remyi
Kauai 10–Chamaesyce remyi var. remyi–d Chamaesyce remyi var. remyi Chamaesyce remyi var. remyi
Kauai 10–Chamaesyce remyi var. remyi–e Chamaesyce remyi var. remyi
Kauai 10–Charpentiera densiflora–b Charpentiera densiflora
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Kauai 10–Cyanea dolichopoda–b Cyanea dolichopoda
Kauai 10–Cyanea eleeleensis–a Cyanea eleeleensis
Kauai 10–Cyanea kolekoleensis–a Cyanea kolekoleensis
Kauai 10–Cyanea kuhihewa–a Cyanea kuhihewa
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Kauai 10–Cyrtandra oenobarba–b Cyrtandra oenobarba Cyrtandra oenobarba
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(CDLIX) TABLE OF PROTECTED SPECIES WITHIN EACH CRITICAL HABITAT UNIT FOR KAUAI—Continued
Unit name Species occupied Species unoccupied
Kauai 10–Cyrtandra oenobarba–c Cyrtandra oenobarba Cyrtandra oenobarba
Kauai 10–Cyrtandra paliku–b Cyrtandra paliku
Kauai 10–Dryopteris crinalis var. podosorus–a Dryopteris crinalis var. podosorus Dryopteris crinalis var. podosorus
Kauai 10–Dubautia imbricata ssp. imbricata–a Dubautia imbricata ssp. imbricata Dubautia imbricata ssp. imbricata
Kauai 10–Dubautia kalalauensis–a Dubautia kalalauensis
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Kauai 10–Dubautia plantaginea ssp. magnifolia–b Dubautia plantaginea ssp. Dubautia plantaginea ssp. magnifolia magnifolia
Kauai 10–Dubautia waialealae–a Dubautia waialealae Dubautia waialealae
*******
Kauai 10–Geranium kauaiense–a Geranium kauaiense Geranium kauaiense
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Kauai 10–Keysseria erici–a Keysseria erici Keysseria erici
Kauai 10–Keysseria helenae–a Keysseria helenae Keysseria helenae
Kauai 10–Labordia helleri–b Labordia helleri Labordia helleri
Kauai 10–Labordia helleri–c Labordia helleri
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Kauai 10–Labordia pumila–a Labordia pumila Labordia pumila
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Kauai 10–Lysimachia daphnoides–a Lysimachia daphnoides Lysimachia daphnoides
*******
Kauai 10–Lysimachia iniki–b Lysimachia iniki Lysimachia iniki
Kauai 10–Lysimachia pendens–b Lysimachia pendens Lysimachia pendens
Kauai 10–Lysimachia venosa–b Lysimachia venosa
Kauai 10–Melicope degeneri–a Melicope paniculata Melicope paniculata
Kauai 10–Melicope paniculata–a Melicope paniculata Melicope paniculata
Kauai 10–Melicope puberula–a Melicope puberula Melicope puberula
Kauai 10–Melicope puberula–b Melicope puberula
*******
Kauai 10–Myrsine mezii–a Myrsine mezii Myrsine mezii
*******
Kauai 10–Phyllostegia renovans–a Phyllostegia renovans Phyllostegia renovans
Kauai 10–Phyllostegia renovans–b Phyllostegia renovans Phyllostegia renovans
*******
Kauai 10–Platydesma rostrata–c Platydesma rostrata Platydesma rostrata
Kauai 10–Platydesma rostrata–d Platydesma rostrata Platydesma rostrata
Kauai 10–Platydesma rostrata–e Platydesma rostrata Platydesma rostrata
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(CDLIX) TABLE OF PROTECTED SPECIES WITHIN EACH CRITICAL HABITAT UNIT FOR KAUAI—Continued
Unit name Species occupied Species unoccupied
Kauai 10–Psychotria grandiflora–a Psychotria grandiflora
*******
Kauai 10–Stenogyne kealiae–a Stenogyne kealiae
Kauai 10–Tetraplasandra bisattenuata–b Tetraplasandra bisattenuata Tetraplasandra bisattenuata
Kauai 10–Tetraplasandra flynnii–a Tetraplasandra flynnii
Kauai 10–Tetraplasandra flynnii–b Tetraplasandra flynnii
*******
Kauai 11–Astelia waialealae–b Astelia waialealae Astelia waialealae
*******
Kauai 11–Canavalia napaliensis–b Canavalia napaliensis Canavalia napaliensis
*******
Kauai 11–Chamaesyce eleanoriae–b Chamaesyce eleanoriae Chamaesyce eleanoriae
Kauai 11–Chamaesyce eleanoriae–c Chamaesyce eleanoriae Chamaesyce eleanoriae
*******
Kauai 11–Chamaesyce remyi var. kauaiensis–d Chamaesyce remyi var. Chamaesyce remyi var. kauaiensis kauaiensis
Kauai 11–Chamaesyce remyi var. kauaiensis–e Chamaesyce remyi var. kauaiensis
Kauai 11–Chamaesyce remyi var. remyi–f Chamaesyce remyi var. remyi Chamaesyce remyi var. remyi
Kauai 11–Chamaesyce remyi var. remyi–g Chamaesyce remyi var. remyi Chamaesyce remyi var. remyi
Kauai 11–Chamaesyce remyi var. remyi–h Chamaesyce remyi var. remyi Chamaesyce remyi var. remyi
Kauai 11–Chamaesyce remyi var. remyi–i Chamaesyce remyi var. remyi Chamaesyce remyi var. remyi
Kauai 11–Chamaesyce remyi var. remyi–j Chamaesyce remyi var. remyi Chamaesyce remyi var. remyi
Kauai 11–Charpentiera densiflora–c Charpentiera densiflora Charpentiera densiflora
Kauai 11–Charpentiera densiflora–d Charpentiera densiflora Charpentiera densiflora
*******
Kauai 11–Cyanea dolichopoda–c Cyanea dolichopoda
Kauai 11–Cyanea eleeleensis–b Cyanea eleeleensis
Kauai 11–Cyanea kolekoleensis–b Cyanea kolekoleensis
Kauai 11–Cyanea kuhihewa–b Cyanea kuhihewa
*******
Kauai 11–Cyrtandra oenobarba–d Cyrtandra oenobarba Cyrtandra oenobarba
Kauai 11–Cyrtandra oenobarba–e Cyrtandra oenobarba
Kauai 11–Cyrtandra paliku–c Cyrtandra paliku
*******
Kauai 11–Diellia mannii–a Diellia mannii Diellia mannii
*******
Kauai 11–Doryopteris angelica–b Doryopteris angelica Doryopteris angelica
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(CDLIX) TABLE OF PROTECTED SPECIES WITHIN EACH CRITICAL HABITAT UNIT FOR KAUAI—Continued
Unit name Species occupied Species unoccupied
Kauai 11–Dryopteris crinalis var. podosorus–b Dryopteris crinalis var. podosorus Dryopteris crinalis var. podosorus
Kauai 11–Dubautia imbricata ssp. imbricata–b Dubautia imbricata ssp. imbricata
Kauai 11–Dubautia kalalauensis–b Dubautia kalalauensis Dubautia kalalauensis
Kauai 11–Dubautia kenwoodii–b Dubautia kenwoodii
*******
Kauai 11–Dubautia plantaginea ssp. magnifolia–c Dubautia plantaginea ssp. magnifolia
Kauai 11–Dubautia waialealae–b Dubautia waialealae Dubautia waialealae
*******
Kauai 11–Geranium kauaiense–b Geranium kauaiense Geranium kauaiense
*******
Kauai 11–Keysseria erici–b Keysseria erici Keysseria erici
Kauai 11–Keysseria helenae–b Keysseria helenae Keysseria helenae
*******
Kauai 11–Labordia helleri–d Labordia helleri Labordia helleri
Kauai 11–Labordia helleri–e Labordia helleri Labordia helleri
Kauai 11–Labordia helleri–f Labordia helleri Labordia helleri
Kauai 11–Labordia helleri–g Labordia helleri Labordia helleri
*******
Kauai 11–Labordia pumila–b Labordia pumila Labordia pumila
*******
Kauai 11–Lysimachia daphnoides–b Lysimachia daphnoides Lysimachia daphnoides
Kauai 11–Lysimachia iniki–c Lysimachia iniki
Kauai 11–Lysimachia pendens–c Lysimachia pendens
Kauai 11–Lysimachia scopulensis–a Lysimachia scopulensis Lysimachia scopulensis
Kauai 11–Lysimachia venosa–c Lysimachia venosa
*******
Kauai 11–Melicope degeneri–b Melicope degeneri Melicope degeneri
*******
Kauai 11–Melicope paniculata–b Melicope paniculata Melicope paniculata
Kauai 11–Melicope puberula–c Melicope puberula Melicope puberula
Kauai 11–Melicope puberula–d Melicope puberula Melicope puberula
*******
Kauai 11–Myrsine knudsenii–a Myrsine knudsenii Myrsine knudsenii
*******
Kauai 11–Myrsine mezii–b Myrsine mezii Myrsine mezii
Kauai 11–Myrsine mezii–c Myrsine mezii
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(CDLIX) TABLE OF PROTECTED SPECIES WITHIN EACH CRITICAL HABITAT UNIT FOR KAUAI—Continued
Unit name Species occupied Species unoccupied
*******
Kauai 11–Phyllostegia renovans–c Phyllostegia renovans Phyllostegia renovans
Kauai 11–Phyllostegia renovans–d Phyllostegia renovans Phyllostegia renovans
*******
Kauai 11–Pittosporum napaliense–b Pittosporum napaliense Pittosporum napaliense
*******
Kauai 11–Platydesma rostrata–f Platydesma rostrata Platydesma rostrata
Kauai 11–Platydesma rostrata–g Platydesma rostrata Platydesma rostrata
Kauai 11–Platydesma rostrata–h Platydesma rostrata Platydesma rostrata
Kauai 11–Platydesma rostrata–i Platydesma rostrata
Kauai 11–Platydesma rostrata–j Platydesma rostrata Platydesma rostrata
*******
Kauai 11–Psychotria grandiflora–b Psychotria grandiflora Psychotria grandiflora
Kauai 11–Psychotria grandiflora–c Psychotria grandiflora Psychotria grandiflora
Kauai 11–Psychotria hobdyi–b Psychotria hobdyi Psychotria hobdyi
*******
Kauai 11–Schiedea attenuata–a Schiedea attenuata Schiedea attenuata
*******
Kauai 11–Stenogyne kealiae–b Stenogyne kealiae Stenogyne kealiae
Kauai 11–Stenogyne kealiae–c Stenogyne kealiae Stenogyne kealiae
Kauai 11–Stenogyne kealiae–d Stenogyne kealiae Stenogyne kealiae
Kauai 11–Tetraplasandra bisattenuata–c Tetraplasandra bisattenuata
Kauai 11–Tetraplasandra bisattenuata–d Tetraplasandra bisattenuata
Kauai 11–Tetraplasandra flynnii–c Tetraplasandra flynnii Tetraplasandra flynnii
Kauai 11–Tetraplasandra flynnii–d Tetraplasandra flynnii
Kauai 11–Tetraplasandra flynnii–e Tetraplasandra flynnii Tetraplasandra flynnii
*******
Kauai 18–Chamaesyce remyi var. kauaiensis–f Chamaesyce remyi var. Chamaesyce remyi var. kauaiensis kauaiensis
Kauai 18–Chamaesyce remyi var. remyi–k Chamaesyce remyi var. remyi
Kauai 18–Cyanea dolichopoda–d Cyanea dolichopoda
Kauai 18–Cyrtandra oenobarba–f Cyrtandra oenobarba Cyrtandra oenobarba
Kauai 18–Cyrtandra paliku–d Cyrtandra paliku
Kauai 18–Dubautia plantaginea ssp. magnifolia–d Dubautia plantaginea ssp. Dubautia plantaginea ssp. magnifolia magnifolia
Kauai 18–Lysimachia iniki–d Lysimachia iniki Lysimachia iniki
Kauai 18–Lysimachia pendens–d Lysimachia pendens Lysimachia pendens
Kauai 18–Lysimachia venosa–d Lysimachia venosa
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(CDLIX) TABLE OF PROTECTED SPECIES WITHIN EACH CRITICAL HABITAT UNIT FOR KAUAI—Continued
Unit name Species occupied Species unoccupied
Kauai 18–Platydesma rostrata–k Platydesma rostrata Platydesma rostrata
Kauai 19–Chamaesyce remyi var. kauaiensis–g Chamaesyce remyi var. kauaiensis
Kauai 19–Chamaesyce remyi var. remyi–l Chamaesyce remyi var. remyi
Kauai 19–Cyanea dolichopoda–e Cyanea dolichopoda
Kauai 19–Cyrtandra oenobarba–g Cyrtandra oenobarba
Kauai 19–Cyrtandra paliku–e Cyrtandra paliku Cyrtandra paliku
Kauai 19–Dubautia plantaginea ssp. magnifolia–e Dubautia plantaginea ssp. magnifolia
Kauai 19–Lysimachia iniki–e Lysimachia iniki
Kauai 19–Lysimachia pendens–e Lysimachia pendens
Kauai 19– Lysimachia venosa–e Lysimachia venosa
Kauai 19–Platydesma rostrata–l Platydesma rostrata
Kauai 20–Chamaesyce remyi var. kauaiensis–h Chamaesyce remyi var. kauaiensis
Kauai 20–Chamaesyce remyi var. remyi–m Chamaesyce remyi var. remyi Chamaesyce remyi var. remyi
Kauai 20–Charpentiera densiflora–e Charpentiera densiflora Charpentiera densiflora
Kauai 20–Cyanea eleeleensis–c Cyanea eleeleensis
Kauai 20–Cyanea kolekoleensis–c Cyanea kolekoleensis
Kauai 20–Cyanea kuhihewa–c Cyanea kuhihewa
Kauai 20–Cyrtandra oenobarba–h Cyrtandra oenobarba
Kauai 20–Dubautia imbricata ssp. imbricata–c Dubautia imbricata ssp. imbricata Dubautia imbricata ssp. imbricata
Kauai 20–Labordia helleri–h Labordia helleri Labordia helleri
Kauai 20–Melicope paniculata–c Melicope paniculata
Kauai 20–Melicope puberula–e Melicope puberula
Kauai 20–Phyllostegia renovans–e Phyllostegia renovans Phyllostegia renovans
Kauai 20–Platydesma rostrata–m Platydesma rostrata
Kauai 20–Stenogyne kealiae–e Stenogyne kealiae
Kauai 20–Tetraplasandra bisattenuata–e Tetraplasandra bisattenuata
Kauai 20–Tetraplasandra flynii–f Tetraplasandra flynii
Kauai 21–Chamaesyce remyi var. remyi–n Chamaesyce remyi var. remyi
Kauai 21–Diellia mannii–b Diellia mannii Diellia mannii
Kauai 21–Labordia helleri–i Labordia helleri
Kauai 21–Myrsine knudsenii–b Myrsine knudsenii
Kauai 21–Myrsine mezii–d Myrsine mezii
Kauai 21–Platydesma rostrata–n Platydesma rostrata
Kauai 21–Psychotria grandiflora–d Psychotria grandiflora
Kauai 21–Stenogyne kealiae–f Stenogyne kealiae
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(CDLIX) TABLE OF PROTECTED SPECIES WITHIN EACH CRITICAL HABITAT UNIT FOR KAUAI—Continued
Unit name Species occupied Species unoccupied
Kauai 21–Tetraplasandra flynnii–g Tetraplasandra flynnii
Kauai 22–Chamaesyce remyi var. remyi–o Chamaesyce remyi var. remyi
Kauai 22–Diellia mannii–c Diellia mannii
Kauai 22–Labordia helleri–j Labordia helleri
Kauai 22–Myrsine knudsenii–c Myrsine knudsenii
Kauai 22–Myrsine mezii–e Myrsine mezii Myrsine mezii
Kauai 22–Platydesma rostrata–o Platydesma rostrata
Kauai 22–Psychotria grandiflora–e Psychotria grandiflora
Kauai 22–Stenogyne kealiae–g Stenogyne kealiae
Kauai 22–Tetraplasandra flynnii–h Tetraplasandra flynnii
Kauai 23–Astelia waialealae–c Astelia waialealae Astelia waialealae
Kauai 23–Chamaesyce remyi var. remyi–p Chamaesyce remyi var. remyi Chamaesyce remyi var. remyi
Kauai 23–Dryopteris crinalis var. podosorus–c Dryopteris crinalis var. podosorus Dryopteris crinalis var. podosorus
Kauai 23–Dubautia kalalauensis–c Dubautia kalalauensis
Kauai 23–Dubautia waialealae–c Dubautia waialealae Dubautia waialealae
Kauai 23–Geranium kauaiense–c Geranium kauaiense Geranium kauaiense
Kauai 23–Keysseria erici–c Keysseria erici Keysseria erici
Kauai 23–Keysseria helenae–c Keysseria helenae Keysseria helenae
Kauai 23–Labordia helleri–k Labordia helleri Labordia helleri
Kauai 23–Labordia pumila–c Labordia pumila Labordia pumila
Kauai 23–Lysimachia daphnoides–c Lysimachia daphnoides Lysimachia daphnoides
Kauai 23–Melicope degeneri–c Melicope degeneri Melicope degeneri
Kauai 23–Melicope puberula–f Melicope puberula Melicope puberula
Kauai 23–Myrsine mezii–f Myrsine mezii Myrsine mezii
Kauai 23–Phyllostegia renovans–f Phyllostegia renovans Phyllostegia renovans
Kauai 23–Platydesma rostrata–p Platydesma rostrata Platydesma rostrata
Kauai 23–Psychotria grandiflora–f Psychotria grandiflora
Kauai 23–Tetraplasandra flynnii–i Tetraplasandra flynnii
Kauai 24–Astelia waialealae–d Astelia waialealae Astelia waialealae
Kauai 24–Chamaesyce remyi var. remyi–q Chamaesyce remyi var. remyi Chamaesyce remyi var. remyi
Kauai 24–Dryopteris crinalis var. podosorus–d Dryopteris crinalis var. podosorus Dryopteris crinalis var. podosorus
Kauai 24–Dubautia kalalauensis–d Dubautia kalalauensis
Kauai 24–Dubautia waialealae–d Dubautia waialealae Dubautia waialealae
Kauai 24–Geranium kauaiense–d Geranium kauaiense Geranium kauaiense
Kauai 24–Keysseria erici–d Keysseria erici Keysseria erici
Kauai 24–Keysseria helenae–d Keysseria helenae Keysseria helenae
Kauai 24–Labordia helleri–l Labordia helleri Labordia helleri
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(CDLIX) TABLE OF PROTECTED SPECIES WITHIN EACH CRITICAL HABITAT UNIT FOR KAUAI—Continued
Unit name Species occupied Species unoccupied
Kauai 24–Labordia pumila–d Labordia pumila Labordia pumila
Kauai 24–Lysimachia daphnoides–d Lysimachia daphnoides Lysimachia daphnoides
Kauai 24–Melicope degeneri–d Melicope degeneri Melicope degeneri
Kauai 24–Melicope puberula–g Melicope puberula Melicope puberula
Kauai 24–Myrsine mezii–g Myrsine mezii Myrsine mezii
Kauai 24–Phyllostegia renovans–g Phyllostegia renovans Phyllostegia renovans
Kauai 24–Platydesma rostrata–q Platydesma rostrata Platydesma rostrata
Kauai 24–Psychotria grandiflora–g Psychotria grandiflora
Kauai 24–Tetraplasandra flynnii–j Tetraplasandra flynnii
Kauai 25–Astelia waialealae–e Astelia waialealae Astelia waialealae
Kauai 25–Chamaesyce remyi var. remyi–r Chamaesyce remyi var. remyi Chamaesyce remyi var. remyi
Kauai 25–Dryopteris crinalis var. podosorus–e Dryopteris crinalis var. podosorus Dryopteris crinalis var. podosorus
Kauai 25–Dubautia kalalauensis–e Dubautia kalalauensis
Kauai 25–Dubautia waialealae–e Dubautia waialealae Dubautia waialealae
Kauai 25–Geranium kauaiense–e Geranium kauaiense Geranium kauaiense
Kauai 25–Keysseria erici–e Keysseria erici Keysseria erici
Kauai 25–Keysseria helenae–e Keysseria helenae Keysseria helenae
Kauai 25–Labordia helleri–m Labordia helleri Labordia helleri
Kauai 25–Labordia pumila–e Labordia pumila Labordia pumila
Kauai 25–Lysimachia daphnoides–e Lysimachia daphnoides Lysimachia daphnoides
Kauai 25–Melicope degeneri–e Melicope degeneri Melicope degeneri
Kauai 25–Melicope puberula–h Melicope puberula Melicope puberula
Kauai 25–Myrsine mezii–h Myrsine mezii Myrsine mezii
Kauai 25–Phyllostegia renovans–h Phyllostegia renovans Phyllostegia renovans
Kauai 25–Platydesma rostrata–r Platydesma rostrata Platydesma rostrata
Kauai 25–Psychotria grandiflora–h Psychotria grandiflora
Kauai 25–Tetraplasandra flynnii–k Tetraplasandra flynnii
* * * * * (i) In units Kauai 7–Charpentiera (E) Subcanopy: Dodonaea, (b) * * * densiflora–a, and Kauai 11– Freycinetia, Leptecophylla, Melanthera, Charpentiera densiflora–c, the primary Osteomeles, Pleomele, Psydrax. (1) * * * constituent elements of critical habitat (F) Understory: Carex, Dicranopteris, FAMILY AMARANATHACEAE: are: Diplazium, Elaphoglossum, Peperomia. Charpentiera densiflora (PAPALA) (A) Elevation: Less than 3,000 ft (914 (ii) In units Kauai 10–Charpentiera Kauai 7–Charpentiera densiflora–a, m). densiflora–b, Kauai 11–Charpentiera Kauai 10–Charpentiera densiflora–b, (B) Annual precipitation: 50 to 75 densiflora–d, and Kauai 20– Kauai 11–Charpentiera densiflora–c, inches (127 to 190 centimeters). Charpentiera densiflora–e, the primary Kauai 11–Charpentiera densiflora–d, constituent elements of critical habitat (C) Substrate: Shallow soils, little to are: and Kauai 20–Charpentiera densiflora– no herbaceous layer. e, identified in the legal descriptions in (A) Elevation: Less than 3,000 ft (914 paragraph (a)(1) of this section, (D) Canopy: Acacia, Diospyros, m). constitute critical habitat for Metrosideros, Myrsine, Pouteria, (B) Annual precipitation: Greater than Charpentiera densiflora on Kauai. Santalum. 75 inches (190 centimeters).
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(C) Substrate: Clays, ashbeds, deep Kauai 20–Tetraplasandra flynnii–f, FAMILY ASTELIACEAE: Astelia well-drained soils, lowland bogs. Kauai 21–Tetraplasandra flynnii–g, waialealae (PAINIU) (D) Canopy: Antidesma, Metrosideros, Kauai 22–Tetraplasandra flynnii–h, Kauai 10–Astelia waialealae–a, Kauai Myrsine, Pisonia, Psychotria. Kauai 23–Tetraplasandra flynnii–i, 11–Astelia waialealae–b, Kauai 23– (E) Subcanopy: Cibotium, Claoxylon, Kauai 24–Tetraplasandra flynnii–j, and Astelia waialealae–c, Kauai 24–Astelia Kadua, Melicope. Kauai 25–Tetraplasandra flynnii–k, waialealae–d, and Kauai 25–Astelia (F) Understory: Alyxia, Cyrtandra, identified in the legal descriptions in waialealae–e, identified in the legal Dicranopteris, Diplazium, Machaerina, paragraph (a)(1) of this section, descriptions in paragraph (a)(1) of this Microlepia. constitute critical habitat for section, constitute critical habitat for * * * * * Tetraplasandra flynnii on Kauai. Astelia waialealae on Kauai. Within (i) In units Kauai 11–Tetraplasandra FAMILY ARALIACEAE: Tetraplasandra these units, the primary constituent flynnii–e, Kauai 21–Tetraplasandra bisattenuata (NCN) elements of critical habitat are: flynnii–g, and Kauai 22–Tetraplasandra (i) Elevation: 3,000 to 5,243 ft (914 to Kauai 7–Tetraplasandra flynnii–h, the primary constituent 1,598 m). bisattenuata–a, Kauai 10– elements of critical habitat are: (ii) Annual precipitation: Greater than Tetraplasandra bisattenuata–b, Kauai (A) Elevation: 3,000 to 5,243 ft (914 to 75 inches (190 centimeters). 11–Tetraplasandra bisattenuata–c, 1,598 m). (iii) Substrate: Well-developed soils, Kauai 11–Tetraplasandra bisattenuata– (B) Annual precipitation: 50 to 75 montane bogs. d, and Kauai 20–Tetraplasandra inches (127 to 190 centimeters). (iv) Canopy: Acacia, Charpentiera, bisattenuata–e, identified in the legal (C) Substrate: Weathered aa lava Cheirodendron, Metrosideros. descriptions in paragraph (a)(1) of this flows, rocky mucks, thin silty loams, (v) Subcanopy: Broussaisia, Cibotium, section, constitute critical habitat for deep volcanic ash soils. Eurya, Ilex, Myrsine. Tetraplasandra bisattenuata on Kauai. (D) Canopy: Acacia, Metrosideros, (vi) Understory: Ferns, Carex, (i) In units Kauai 7–Tetraplasandra Psychotria, Tetraplasandra, Coprosma, Leptecophylla, Oreobolus, bisattenuata–a, and Kauai 11– Zanthoxylum. Rhynchospora, Vaccinium. Tetraplasandra bisattenuata–c, the (E) Subcanopy: Cheirodendron, (vii) Hummocks in bogs. primary constituent elements of critical Coprosma, Kadua, Ilex, Myoporum, habitat are: FAMILY ASTERACEAE: Dubautia Myrsine. imbricata ssp. imbricata (NAENAE) (A) Elevation: Less than 3,000 ft (914 (F) Understory: Bidens, Dryopteris, m). Leptecophylla, Poa, Scaevola, Sophora. Kauai 10–Dubautia imbricata ssp. (B) Annual precipitation: 50 to 75 (ii) In units Kauai 10–Tetraplasandra imbricata–a, Kauai 11–Dubautia inches (127 to 190 centimeters). flynnii–a, Kauai 11–Tetraplasandra imbricata ssp. imbricata–b, and Kauai (C) Substrate: Shallow soils, little to flynnii–c, Kauai 23–Tetraplasandra 20–Dubautia imbricata ssp. imbricata– no herbaceous layer. flynnii–i, Kauai 24–Tetraplasandra c, identified in the legal descriptions in (D) Canopy: Acacia, Diospyros, flynnii–j, and Kauai 25–Tetraplasandra paragraph (a)(1) of this section, Metrosideros, Myrsine, Pouteria, flynnii–k, the primary constituent constitute critical habitat for Dubautia Santalum. elements of critical habitat are: imbricata ssp. imbricata on Kauai. (E) Subcanopy: Dodonaea, (A) Elevation: 3,000 to 5,243 ft (914 to Within these units, the primary Freycinetia, Leptecophylla, Melanthera, 1,598 m). constituent elements of critical habitat Osteomeles, Pleomele, Psydrax. (B) Annual precipitation: Greater than are: (F) Understory: Carex, Dicranopteris, 75 inches (190 centimeters). (i) Elevation: Less than 3,000 ft (914 Diplazium, Elaphoglossum, Peperomia. (C) Substrate: Well-developed soils, m). (ii) In units Kauai 10–Tetraplasandra (ii) Annual precipitation: Greater than montane bogs. bisattenuata–b, Kauai 11– 75 inches (190 centimeters). (D) Canopy: Acacia, Charpentiera, Tetraplasandra bisattenuata–d, and (iii) Substrate: Clays, ashbeds, deep Cheirodendron, Metrosideros. Kauai 20–Tetraplasandra bisattenuata– well-drained soils, lowland bogs. (E) Subcanopy: Broussaisia, Cibotium, e, the primary constituent elements of (iv) Canopy: Antidesma, Metrosideros, Eurya, Ilex, Myrsine. critical habitat are: Myrsine, Pisonia, Psychotria. (A) Elevation: Less than 3,000 ft (914 (F) Understory: Ferns, Carex, (v) Subcanopy: Cibotium, Claoxylon, m). Coprosma, Leptecophylla, Oreobolus, Kadua, Melicope. (B) Annual precipitation: Greater than Rhynchospora, Vaccinium. (vi) Understory: Alyxia, Cyrtandra, 75 inches (190 centimeters). (iii) In units Kauai 10–Tetraplasandra Dicranopteris, Diplazium, Machaerina, (C) Substrate: Clays, ashbeds, deep flynii–b, Kauai 11–Tetraplasandra Microlepia. flynii–d, and Kauai 20–Tetraplasandra well-drained soils, lowland bogs. FAMILY ASTERACEAE: Dubautia (D) Canopy: Antidesma, Metrosideros, flynnii–f, the primary constituent kalalauensis (NAENAE) Myrsine, Pisonia, Psychotria. elements of critical habitat are: (E) Subcanopy: Cibotium, Claoxylon, (A) Elevation: Less than 3,000 ft (914 Kauai 10–Dubautia kalalauensis–a, Kadua, Melicope. m). Kauai 11–Dubautia kalalauensis–b, (F) Understory: Alyxia, Cyrtandra, (B) Annual precipitation: Greater than Kauai 23–Dubautia kalalauensis–c, Dicranopteris, Diplazium, Machaerina, 75 inches (190 centimeters). Kauai 24–Dubautia kalalauensis–d, and Microlepia. (C) Substrate: Clays, ashbeds, deep Kauai 25–Dubautia kalalauensis–e, well-drained soils, lowland bogs. identified in the legal descriptions in FAMILY ARALIACEAE: Tetraplasandra (D) Canopy: Antidesma, Metrosideros, paragraph (a)(1) of this section, flynnii (NCN) Myrsine, Pisonia, Psychotria. constitute critical habitat for Dubautia Kauai 10–Tetraplasandra flynnii–a, (E) Subcanopy: Cibotium, Claoxylon, kalalauensis on Kauai. Within these Kauai 10–Tetraplasandra flynnii–b, Kadua, Melicope. units, the primary constituent elements Kauai 11–Tetraplasandra flynnii–c, (F) Understory: Alyxia, Cyrtandra, of critical habitat are: Kauai 11–Tetraplasandra flynnii–d, Dicranopteris, Diplazium, Machaerina, (i) Elevation: 3,000 to 5,243 ft (914 to Kauai 11–Tetraplasandra flynnii–e, Microlepia. 1,598 m).
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(ii) Annual precipitation: Greater than 23–Dubautia waialealae–c, Kauai 24– (iv) Canopy: Acacia, Charpentiera, 75 inches (190 centimeters). Dubautia waialealae–d, and Kauai 25– Cheirodendron, Metrosideros. (iii) Substrate: Well-developed soils, Dubautia waialealae–e, identified in the (v) Subcanopy: Broussaisia, Cibotium, montane bogs. legal descriptions in paragraph (a)(1) of Eurya, Ilex, Myrsine. (iv) Canopy: Acacia, Charpentiera, this section, constitute critical habitat (vi) Understory: Ferns, Carex, Cheirodendron, Metrosideros. for Dubautia waialealae on Kauai. Coprosma, Leptecophylla, Oreobolus, (v) Subcanopy: Broussaisia, Cibotium, Within these units, the primary Rhynchospora, Vaccinium. Eurya, Ilex, Myrsine. constituent elements of critical habitat (vii) Bogs. (vi) Understory: Ferns, Carex, are: * * * * * Coprosma, Leptecophylla, Oreobolus, (i) Elevation: 3,000 to 5,243 ft (914 to Rhynchospora, Vaccinium. 1,598 m). FAMILY CAMPANULACEAE: Cyanea dolichopoda (HAHA) FAMILY ASTERACEAE: Dubautia (ii) Annual precipitation: Greater than kenwoodii (NAENAE) 75 inches (190 centimeters). Kauai 4–Cyanea dolichopoda–a, (iii) Substrate: Well-developed soils, Kauai 10–Cyanea dolichopoda–b, Kauai Kauai 7–Dubautia kenwoodii–a and montane bogs. 11–Cyanea dolichopoda–c, Kauai 18– Kauai 11–Dubautia kenwoodii–b, (iv) Canopy: Acacia, Charpentiera, Cyanea dolichopoda–d, and Kauai 19– identified in the legal descriptions in Cheirodendron, Metrosideros. Cyanea dolichopoda–e, identified in the paragraph (a)(1) of this section, (v) Subcanopy: Broussaisia, Cibotium, legal descriptions in paragraph (a)(1) of constitute critical habitat for Dubautia Eurya, Ilex, Myrsine. this section, constitute critical habitat kenwoodii on Kauai. Within these units, (vi) Understory: Ferns, Carex, for Cyanea dolichopoda on Kauai. the primary constituent elements of Coprosma, Leptecophylla, Oreobolus, critical habitat are: Within these units, the primary Rhynchospora, Vaccinium. constituent elements of critical habitat (i) Elevation: Less than 3,000 ft (914 (vii) Bogs. m). are: (ii) Annual precipitation: 50 to 75 * * * * * (i) Annual precipitation: Greater than inches (127 to 190 centimeters). 75 inches (190 centimeters). FAMILY ASTERACEAE: Keysseria erici (ii) Substrate: Greater than 65 degree (iii) Substrate: Shallow soils, little to (NCN) no herbaceous layer. slope, shallow soils, weathered lava. (iv) Canopy: Acacia, Diospyros, Kauai 10–Keysseria erici–a, Kauai 11– (iii) Subcanopy: Broussaisia, Metrosideros, Myrsine, Pouteria, Keysseria erici–b, Kauai 23–Keysseria Cheirodendron, Leptecophylla, Santalum. erici–c, Kauai 24–Keysseria erici–d, and Metrosideros. (v) Subcanopy: Dodonaea, Kauai 25–Keysseria erici–e, identified in (iv) Understory: Ferns, Bryophytes, Freycinetia, Leptecophylla, Melanthera, the legal descriptions in paragraph (a)(1) Coprosoma, Dubautia, Kadua, Osteomeles, Pleomele, Psydrax. of this section, constitute critical habitat Peperomia. for Keysseria erici on Kauai. Within (vi) Understory: Carex, Dicranopteris, FAMILY CAMPANULACEAE: Cyanea these units, the primary constituent Diplazium, Elaphoglossum, Peperomia. eleeleensis (HAHA) * * * * * elements of critical habitat are: (i) Elevation: 3,000 to 5,243 ft (914 to Kauai 10–Cyanea eleeleensis–a, Kauai FAMILY ASTERACEAE: Dubautia 1,598 m). 11–Cyanea eleeleensis–b, and Kauai 20– plantaginea ssp. magnifolia (NAENAE) (ii) Annual precipitation: Greater than Cyanea eleeleensis–c, identified in the Kauai 4–Dubautia plantaginea ssp. 75 inches (190 centimeters). legal descriptions in paragraph (a)(1) of magnifolia–a, Kauai 10–Dubautia (iii) Substrate: Well-developed soils, this section, constitute critical habitat plantaginea ssp. magnifolia–b, Kauai montane bogs. for Cyanea eleeleensis on Kauai. Within 11–Dubautia plantaginea ssp. (iv) Canopy: Acacia, Charpentiera, these units, the primary constituent magnifolia–c, Kauai 18–Dubautia Cheirodendron, Metrosideros. elements of critical habitat are: plantaginea ssp. magnifolia–d, and (v) Subcanopy: Broussaisia, Cibotium, (i) Elevation: Less than 3,000 ft (914 Kauai 19–Dubautia plantaginea ssp. Eurya, Ilex, Myrsine. m). magnifolia–e, identified in the legal (vi) Understory: Ferns, Carex, (ii) Annual precipitation: Greater than descriptions in paragraph (a)(1) of this Coprosma, Leptecophylla, Oreobolus, 75 inches (190 centimeters). section, constitute critical habitat for Rhynchospora, Vaccinium. (iii) Substrate: Clays, ashbeds, deep Dubautia plantaginea ssp. magnifolia (vii) Bogs. well-drained soils, lowland bogs. (iv) Canopy: Antidesma, Metrosideros, on Kauai. Within these units, the FAMILY ASTERACEAE: Keysseria Myrsine, Pisonia, Psychotria. primary constituent elements of critical helenae (NCN) habitat are: (v) Subcanopy: Cibotium, Claoxylon, (i) Annual precipitation: Greater than Kauai 10–Keysseria helenae–a, Kauai Kadua, Melicope. 75 inches (190 centimeters). 11–Keysseria helenae–b, Kauai 23– (vi) Understory: Alyxia, Cyrtandra, (ii) Substrate: Greater than 65 degree Keysseria helenae–c, Kauai 24– Dicranopteris, Diplazium, Machaerina, slope, shallow soils, weathered lava. Keysseria helenae–d, and Kauai 25– Microlepia. (iii) Subcanopy: Broussaisia, Keysseria helenae–e, identified in the FAMILY CAMPANULACEAE: Cyanea Cheirodendron, Leptecophylla, legal descriptions in paragraph (a)(1) of kolekoleensis (HAHA) Metrosideros. this section, constitute critical habitat (iv) Understory: Ferns, Bryophytes, for Keysseria helenae on Kauai. Within Kauai 10–Cyanea kolekoleensis–a, Coprosoma, Dubautia, Kadua, these units, the primary constituent Kauai 11–Cyanea kolekoleensis–b, and Peperomia. elements of critical habitat are: Kauai 20–Cyanea kolekoleensis–c, * * * * * (i) Elevation: 3,000 to 5,243 ft (914 to identified in the legal descriptions in 1,598 m). paragraph (a)(1) of this section, FAMILY ASTERACEAE: Dubautia (ii) Annual precipitation: Greater than constitute critical habitat for Cyanea waialealae (NAENAE) 75 inches (190 centimeters). kolekoleensis on Kauai. Within these Kauai 10–Dubautia waialealae–a, (iii) Substrate: Well-developed soils, units, the primary constituent elements Kauai 11–Dubautia waialealae–b, Kauai montane bogs. of critical habitat are:
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(i) Elevation: Less than 3,000 ft (914 eleanoriae–b, the primary constituent Chamaesyce remyi var. kauaiensis–c, m). elements of critical habitat are: Kauai 11–Chamaesyce remyi var. (ii) Annual precipitation: Greater than (A) Elevation: Less than 3,000 ft (914 kauaiensis–e, Kauai 18–Chamaesyce 75 inches (190 centimeters). m). remyi var. kauaiensis–f, and Kauai 19– (iii) Substrate: Clays, ashbeds, deep (B) Annual precipitation: 50 to 75 Chamaesyce remyi var. kauaiensis–g, well-drained soils, lowland bogs. inches (127 to 190 centimeters). the primary constituent elements of (iv) Canopy: Antidesma, Metrosideros, (C) Substrate: Shallow soils, little to critical habitat are: Myrsine, Pisonia, Psychotria. no herbaceous layer. (A) Annual precipitation: Greater than (v) Subcanopy: Cibotium, Claoxylon, (D) Canopy: Acacia, Diospyros, 75 inches (190 centimeters). Kadua, Melicope. Metrosideros, Myrsine, Pouteria, (B) Substrate: Greater than 65 degree (vi) Understory: Alyxia, Cyrtandra, Santalum. slope, shallow soils, weathered lava. Dicranopteris, Diplazium, Machaerina, (E) Subcanopy: Dodonaea, (C) Subcanopy: Broussaisia, Microlepia. Freycinetia, Leptecophylla, Melanthera, Cheirodendron, Leptecophylla, Osteomeles, Pleomele, Psydrax. Metrosideros. FAMILY CAMPANULACEAE: Cyanea (F) Understory: Carex, Dicranopteris, kuhihewa (HAHA) (D) Understory: Ferns, Bryophytes, Diplazium, Elaphoglossum, Peperomia. Coprosoma, Dubautia, Kadua, Kauai 10–Cyanea kuhihewa–a, Kauai (ii) In unit Kauai 11–Chamaesyce Peperomia. 11–Cyanea kuhihewa–b, and Kauai 20– eleanoriae–c, the primary constituent Cyanea kuhihewa–c, identified in the elements of critical habitat are: FAMILY EUPHORBIACEAE: legal descriptions in paragraph (a)(1) of (A) Annual precipitation: Less than 75 Chamaesyce remyi var. remyi (AKOKO) this section, constitute critical habitat inches (190 centimeters). Kauai 4–Chamaesyce remyi var. (B) Substrate: Greater than 65 degree for Cyanea kuhihewa on Kauai. Within remyi–a, Kauai 7–Chamaesyce remyi slope, rocky talus. these units, the primary constituent var. remyi–b, Kauai 10–Chamaesyce (C) Subcanopy: Antidesma, elements of critical habitat are: remyi var. remyi–c, Kauai 10– (i) Elevation: Less than 3,000 ft (914 Chamaesyce, Diospyros, Dodonaea. Chamaesyce remyi var. remyi–d, Kauai m). (D) Understory: Bidens, Eragrostis, 10–Chamaesyce remyi var. remyi–e, (ii) Annual precipitation: Greater than Melanthera, Schiedea. Kauai 11–Chamaesyce remyi var. remyi– 75 inches (190 centimeters). * * * * * (iii) Substrate: Clays, ashbeds, deep f, Kauai 11–Chamaesyce remyi var. well-drained soils, lowland bogs. FAMILY EUPHORBIACEAE: remyi–g, Kauai 11–Chamaesyce remyi (iv) Canopy: Antidesma, Metrosideros, Chamaesyce remyi var. kauaiensis var. remyi–h, Kauai 11–Chamaesyce Myrsine, Pisonia, Psychotria. (AKOKO) remyi var. remyi–i, Kauai 11– Chamaesyce remyi var. remyi–j, Kauai (v) Subcanopy: Cibotium, Claoxylon, Kauai 4–Chamaesyce remyi var. 18–Chamaesyce remyi var. remyi–k, Kadua, Melicope. kauaiensis–a, Kauai 10–Chamaesyce Kauai 19–Chamaesyce remyi var. remyi– (vi) Understory: Alyxia, Cyrtandra, remyi var. kauaiensis–b, Kauai 10– l, Kauai 20–Chamaesyce remyi var. Dicranopteris, Diplazium, Machaerina, Chamaesyce remyi var. kauaiensis–c, remyi–m, Kauai 21–Chamaesyce remyi Microlepia. Kauai 11–Chamaesyce remyi var. var. remyi–n, Kauai 22–Chamaesyce * * * * * kauaiensis–d, Kauai 11–Chamaesyce remyi var. remyi–o, Kauai 23– remyi var. kauaiensis–e, Kauai 18– FAMILY CARYOPHYLLACEAE: Chamaesyce remyi var. remyi–p, Kauai Chamaesyce remyi var. kauaiensis–f, Schiedea attenuata (NCN) 24–Chamaesyce remyi var. remyi–q, and Kauai 19–Chamaesyce remyi var. Kauai 25–Chamaesyce remyi var. remyi– Kauai 11–Schiedea attenuata–a, kauaiensis–g, and Kauai 20– r, identified in the legal descriptions in identified in the legal description in Chamaesyce remyi var. kauaiensis–h, paragraph (a)(1) of this section, paragraph (a)(1) of this section, identified in the legal descriptions in constitute critical habitat for constitutes critical habitat for Schiedea paragraph (a)(1) of this section, Chamaesyce remyi var. remyi on Kauai. attenuata on Kauai. Within this unit, constitute critical habitat for (i) In units Kauai 7–Chamaesyce the primary constituent elements of Chamaesyce remyi var. kauaiensis on remyi var. remyi–b and Kauai 11– critical habitat are: Kauai. (i) Annual precipitation: Less than 75 (i) In units Kauai 10–Chamaesyce Chamaesyce remyi var. remyi–g, the inches (190 centimeters). remyi var. kauaiensis–b, Kauai 11– primary constituent elements of critical (ii) Substrate: Greater than 65 degree Chamaesyce remyi var. kauaiensis–d, habitat are: slope, rocky talus. and Kauai 20–Chamaesyce remyi var. (A) Elevation: Less than 3,000 ft (914 (iii) Subcanopy: Antidesma, kauaiensis–h, the primary constituent m). Chamaesyce, Diospyros, Dodonaea. elements of critical habitat are: (B) Annual precipitation: 50 to 75 (iv) Understory: Bidens, Eragrostis, (A) Elevation: Less than 3,000 ft (914 inches (127 to 190 centimeters). Melanthera, Schiedea. m). (C) Substrate: Shallow soils, little to * * * * * (B) Annual precipitation: Greater than no herbaceous layer. 75 inches (190 centimeters). (D) Canopy: Acacia, Diospyros, FAMILY EUPHORBIACEAE: (C) Substrate: Clays, ashbeds, deep Metrosideros, Myrsine, Pouteria, Chamaesyce eleanoriae (AKOKO) well-drained soils, lowland bogs. Santalum. Kauai 7–Chamaesyce eleanoriae–a, (D) Canopy: Antidesma, Metrosideros, (E) Subcanopy: Dodonaea, Kauai 11–Chamaesyce eleanoriae–b, Myrsine, Pisonia, Psychotria. Freycinetia, Leptecophylla, Melanthera, and Kauai 11–Chamaesyce eleanoriae– (E) Subcanopy: Cibotium, Claoxylon, Osteomeles, Pleomele, Psydrax. c, identified in the legal descriptions in Kadua, Melicope. (F) Understory: Carex, Dicranopteris, paragraph (a)(1) of this section, (F) Understory: Alyxia, Cyrtandra, Diplazium, Elaphoglossum, Peperomia. constitute critical habitat for Dicranopteris, Diplazium, Machaerina, (ii) In units Kauai 10–Chamaesyce Chamaesyce eleanoriae on Kauai. Microlepia. remyi var. remyi–d, Kauai 11– (i) In units Kauai 7–Chamaesyce (ii) In units Kauai 4–Chamaesyce Chamaesyce remyi var. remyi–h, and eleanoriae–a and Kauai 11–Chamaesyce remyi var. kauaiensis–a, Kauai 10– Kauai 20–Chamaesyce remyi var. remyi–
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m, the primary constituent elements of (C) Subcanopy: Broussaisia, 11–Cyrtandra oenobarba–d, Kauai 11– critical habitat are: Cheirodendron, Leptecophylla, Cyrtandra oenobarba–e, Kauai 18– (A) Elevation: Less than 3,000 ft (914 Metrosideros. Cyrtandra oenobarba–f, Kauai 19– m). (D) Understory: Ferns, Bryophytes, Cyrtandra oenobarba–g, and Kauai 20– (B) Annual precipitation: Greater than Coprosoma, Dubautia, Kadua, Cyrtandra oenobarba–h, identified in 75 inches (190 centimeters). Peperomia. the legal descriptions in paragraph (a)(1) (C) Substrate: Clays, ashbeds, deep * * * * * of this section, constitute critical habitat well-drained soils, lowland bogs. for Cyrtandra oenobarba on Kauai. (D) Canopy: Antidesma, Metrosideros, FAMILY FABACEAE: Canavalia (i) In units Kauai 10–Cyrtandra Myrsine, Pisonia, Psychotria. napaliensis (AWIKIWIKI) oenobarba–b, Kauai 11–Cyrtandra (E) Subcanopy: Cibotium, Claoxylon, Kauai 7–Canavalia napaliensis–a and oenobarba–d, and Kauai 20–Cyrtandra Kadua, Melicope. Kauai 11–Canavalia napaliensis–b, oenobarba–h, the primary constituent (F) Understory: Alyxia, Cyrtandra, identified in the legal descriptions in elements of critical habitat are: Dicranopteris, Diplazium, Machaerina, paragraph (a)(1) of this section, (A) Elevation: Less than 3,000 ft (914 Microlepia. constitute critical habitat for Canavalia m). (iii) In units Kauai 11–Chamaesyce napaliensis on Kauai. Within these (B) Annual precipitation: Greater than remyi var. remyi–j, Kauai 21– units, the primary constituent elements 75 inches (190 centimeters). Chamaesyce remyi var. remyi–n, and of critical habitat are: (C) Substrate: Clays, ashbeds, deep Kauai 22–Chamaesyce remyi var. remyi– (i) Elevation: Less than 3,000 ft (914 o, the primary constituent elements of well-drained soils, lowland bogs. m). (D) Canopy: Antidesma, Metrosideros, critical habitat are: (ii) Annual precipitation: 50 to 75 (A) Elevation: 3,000 to 5,243 ft (914 to Myrsine, Pisonia, Psychotria. inches (127 to 190 centimeters). (E) Subcanopy: Cibotium, Claoxylon, 1,598 m). (iii) Substrate: Shallow soils, little to (B) Annual precipitation: 50 to 75 Kadua, Melicope. no herbaceous layer. (F) Understory: Alyxia, Cyrtandra, inches (127 to 190 centimeters). (iv) Canopy: Acacia, Diospyros, Dicranopteris, Diplazium, Machaerina, (C) Substrate: Weathered aa lava Metrosideros, Myrsine, Pouteria, Microlepia. flows, rocky mucks, thin silty loams, Santalum. (ii) In units Kauai 4–Cyrtandra deep volcanic ash soils. (v) Subcanopy: Dodonaea, (D) Canopy: Acacia, Metrosideros, oenobarba–a, Kauai 10–Cyrtandra Freycinetia, Leptecophylla, Melanthera, Psychotria, Tetraplasandra, oenobarba–c, Kauai 11–Cyrtandra Osteomeles, Pleomele, Psydrax. Zanthoxylum. oenobarba–e, Kauai 18–Cyrtandra (vi) Understory: Carex, Dicranopteris, (E) Subcanopy: Cheirodendron, oenobarba–f, and Kauai 19–Cyrtandra Diplazium, Elaphoglossum, Peperomia. Coprosma, Kadua, Ilex, Myoporum, oenobarba–g, the primary constituent Myrsine. * * * * * elements of critical habitat are: (F) Understory: Bidens, Dryopteris, FAMILY GERANIACEAE: Geranium (A) Annual precipitation: Greater than Leptecophylla, Poa, Scaevola, Sophora. kauaiense (NOHOANU) 75 inches (190 centimeters). (iv) In units Kauai 10–Chamaesyce Kauai 10–Geranium kauaiense–a, (B) Substrate: Greater than 65 degree remyi var. remyi–c, Kauai 11– slope, shallow soils, weathered lava. Chamaesyce remyi var. remyi–f, Kauai Kauai 11–Geranium kauaiense–b, Kauai 23–Geranium kauaiense–c, Kauai 24– (C) Subcanopy: Broussaisia, 23–Chamaesyce remyi var. remyi–p, Cheirodendron, Leptecophylla, Kauai 24–Chamaesyce remyi var. remyi– Geranium kauaiense–d, and Kauai 25– Geranium kauaiense–e, identified in the Metrosideros. q, and Kauai 25–Chamaesyce remyi var. (D) Understory: Ferns, Bryophytes, remyi–r, the primary constituent legal descriptions in paragraph (a)(1) of this section, constitute critical habitat Coprosoma, Dubautia, Kadua, elements of critical habitat are: Peperomia. (A) Elevation: 3,000 to 5,243 ft (914 to for Geranium kauaiense on Kauai. 1,598 m). Within these units, the primary FAMILY GESNERIACEAE: Cyrtandra (B) Annual precipitation: Greater than constituent elements of critical habitat paliku (HAIWALE) are: 75 inches (190 centimeters). Kauai 4–Cyrtandra paliku–a, Kauai (C) Substrate: Well-developed soils, (i) Elevation: 3,000 to 5,243 ft (914 to 1,598 m). 10–Cyrtandra paliku–b, Kauai 11– montane bogs. Cyrtandra paliku–c, Kauai 18– (D) Canopy: Acacia, Charpentiera, (ii) Annual precipitation: Greater than 75 inches (190 centimeters). Cyrtandra paliku–d, and Kauai 19– Cheirodendron, Metrosideros. Cyrtandra paliku–e, identified in the (E) Subcanopy: Broussaisia, Cibotium, (iii) Substrate: Well-developed soils, montane bogs. legal descriptions in paragraph (a)(1) of Eurya, Ilex, Myrsine. this section, constitute critical habitat (F) Understory: Ferns, Carex, (iv) Canopy: Acacia, Charpentiera, for Cyrtandra paliku on Kauai. Within Coprosma, Leptecophylla, Oreobolus, Cheirodendron, Metrosideros. these units, the primary constituent Rhynchospora, Vaccinium. (v) Subcanopy: Broussaisia, Cibotium, elements of critical habitat are: (v) In units Kauai 4–Chamaesyce Eurya, Ilex, Myrsine. remyi var. remyi–a, Kauai 10– (vi) Understory: Ferns, Carex, (i) Annual precipitation: Greater than Chamaesyce remyi var. remyi–e, Kauai Coprosma, Leptecophylla, Oreobolus, 75 inches (190 centimeters). 11–Chamaesyce remyi var. remyi–i, Rhynchospora, Vaccinium. (ii) Substrate: Greater than 65 degree Kauai 18–Chamaesyce remyi var. remyi– (vii) Bogs. slope, shallow soils, weathered lava. k, and Kauai 19–Chamaesyce remyi var. * * * * * (iii) Subcanopy: Broussaisia, remyi–l, the primary constituent Cheirodendron, Leptecophylla, FAMILY GESNERIACEAE: Cyrtandra elements of critical habitat are: Metrosideros. (A) Annual precipitation: Greater than oenobarba (HAIWALE) (iv) Understory: Ferns, Bryophytes, 75 inches (190 centimeters). Kauai 4–Cyrtandra oenobarba–a, Coprosoma, Dubautia, Kadua, (B) Substrate: Greater than 65 degree Kauai 10–Cyrtandra oenobarba–b, Peperomia. slope, shallow soils, weathered lava. Kauai 10–Cyrtandra oenobarba–c, Kauai * * * * *
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FAMILY LAMIACEAE: Phyllostegia c, and Kauai 20–Stenogyne kealiae–e, (B) Annual precipitation: 50 to 75 renovans (NCN) the primary constituent elements of inches (127 to 190 centimeters). Kauai 10–Phyllostegia renovans–a, critical habitat are: (C) Substrate: Shallow soils, little to (A) Elevation: Less than 3,000 ft (914 Kauai 10–Phyllostegia renovans–b, no herbaceous layer. m). Kauai 11–Phyllostegia renovans–c, (D) Canopy: Acacia, Diospyros, (B) Annual precipitation: Greater than Kauai 11–Phyllostegia renovans–d, Metrosideros, Myrsine, Pouteria, 75 inches (190 centimeters). Santalum. Kauai 20–Phyllostegia renovans–e, (C) Substrate: Clays, ashbeds, deep Kauai 23–Phyllostegia renovans–f, (E) Subcanopy: Dodonaea, well-drained soils, lowland bogs. Freycinetia, Leptecophylla, Melanthera, Kauai 24–Phyllostegia renovans–g, and (D) Canopy: Antidesma, Metrosideros, Osteomeles, Pleomele, Psydrax. Kauai 25–Phyllostegia renovans–h, Myrsine, Pisonia, Psychotria. identified in the legal descriptions in (E) Subcanopy: Cibotium, Claoxylon, (F) Understory: Carex, Dicranopteris, paragraph (a)(1) of this section, Kadua, Melicope. Diplazium, Elaphoglossum, Peperomia. constitute critical habitat for (F) Understory: Alyxia, Cyrtandra, (ii) In units Kauai 10–Labordia Phyllostegia renovans on Kauai. Dicranopteris, Diplazium, Machaerina, helleri–c, Kauai 11–Labordia helleri–f, (i) In units Kauai 10–Phyllostegia Microlepia. and Kauai 20–Labordia helleri–h, the renovans–b, Kauai 11–Phyllostegia (ii) In units Kauai 11–Stenogyne primary constituent elements of critical renovans–d, and Kauai 20–Phyllostegia kealiae–d, Kauai 21–Stenogyne kealiae– habitat are: renovans–e, the primary constituent f, and Kauai 22–Stenogyne kealiae–g, (A) Elevation: Less than 3,000 ft (914 elements of critical habitat are: the primary constituent elements of m). (A) Elevation: Less than 3,000 ft (914 critical habitat are: (B) Annual precipitation: Greater than m). (A) Elevation: 3,000 to 5,243 ft (914 to 75 inches (190 centimeters). (B) Annual precipitation: Greater than 1,598 m). (C) Substrate: Clays, ashbeds, deep 75 inches (190 centimeters). (B) Annual precipitation: 50 to 75 well-drained soils, lowland bogs. (C) Substrate: Clays, ashbeds, deep inches (127 to 190 centimeters). (D) Canopy: Antidesma, Metrosideros, well-drained soils, lowland bogs. (C) Substrate: Weathered aa lava Myrsine, Pisonia, Psychotria. (D) Canopy: Antidesma, Metrosideros, flows, rocky mucks, thin silty loams, (E) Subcanopy: Cibotium, Claoxylon, Myrsine, Pisonia, Psychotria. deep volcanic ash soils. Kadua, Melicope. (E) Subcanopy: Cibotium, Claoxylon, (D) Canopy: Acacia, Metrosideros, (F) Understory: Alyxia, Cyrtandra, Kadua, Melicope. Psychotria, Tetraplasandra, Dicranopteris, Diplazium, Machaerina, (F) Understory: Alyxia, Cyrtandra, Zanthoxylum. Microlepia. (E) Subcanopy: Cheirodendron, Dicranopteris, Diplazium, Machaerina, (iii) In units Kauai 11–Labordia Microlepia. Coprosma, Kadua, Ilex, Myoporum, Myrsine. helleri–g, Kauai 21–Labordia helleri–i, (ii) In units Kauai 10–Phyllostegia and Kauai 22–Labordia helleri–j, the renovans–a, Kauai 11–Phyllostegia (F) Understory: Bidens, Dryopteris, Leptecophylla, Poa, Scaevola, Sophora. primary constituent elements of critical renovans–c, Kauai 23–Phyllostegia habitat are: renovans–f, Kauai 24–Phyllostegia (iii) In unit Kauai 11–Stenogyne kealiae–b, the primary constituent (A) Elevation: 3,000 to 5,243 ft (914 to renovans–g, and Kauai 25–Phyllostegia 1,598 m). renovans–h, the primary constituent elements of critical habitat are: (B) Annual precipitation: 50 to 75 elements of critical habitat are: (A) Annual precipitation: Less than 75 inches (127 to 190 centimeters). (A) Elevation: 3,000 to 5,243 ft (914 to inches (190 centimeters). (B) Substrate: Greater than 65 degree 1,598 m). (C) Substrate: Weathered aa lava slope, rocky talus. (B) Annual precipitation: Greater than flows, rocky mucks, thin silty loams, (C) Subcanopy: Antidesma, 75 inches (190 centimeters). deep volcanic ash soils. Chamaesyce, Diospyros, Dodonaea. (C) Substrate: Well-developed soils, (D) Canopy: Acacia, Metrosideros, (D) Understory: Bidens, Eragrostis, Psychotria, Tetraplasandra, montane bogs. Melanthera, Schiedea. (D) Canopy: Acacia, Charpentiera, Zanthoxylum. Cheirodendron, Metrosideros. FAMILY LOGANIACEAE: Labordia (E) Subcanopy: Cheirodendron, (E) Subcanopy: Broussaisia, Cibotium, helleri (KAMAKAHALA) Coprosma, Kadua, Ilex, Myoporum, Myrsine. Eurya, Ilex, Myrsine. Kauai 7–Labordia helleri–a, Kauai 10– (F) Understory: Bidens, Dryopteris, (F) Understory: Ferns, Carex, Labordia helleri–b, Kauai 10–Labordia Leptecophylla, Poa, Scaevola, Sophora. Coprosma, Leptecophylla, Oreobolus, helleri–c, Kauai 11–Labordia helleri–d, Rhynchospora, Vaccinium. Kauai 11–Labordia helleri–e, Kauai 11– (iv) In units Kauai 10–Labordia * * * * * Labordia helleri–f, Kauai 11–Labordia helleri–b, Kauai 11–Labordia helleri–d, helleri–g, Kauai 20–Labordia helleri–h, Kauai 23–Labordia helleri–k, Kauai 24– FAMILY LAMIACEAE: Stenogyne Kauai 21–Labordia helleri–i, Kauai 22– Labordia helleri–l, and Kauai 25– kealiae (NCN) Labordia helleri–j, Kauai 23–Labordia Labordia helleri–m, the primary Kauai 10–Stenogyne kealiae–a, Kauai helleri–k, Kauai 24–Labordia helleri–l, constituent elements of critical habitat 11–Stenogyne kealiae–b, Kauai 11– and Kauai 25–Labordia helleri–m, are: Stenogyne kealiae–c, Kauai 11– identified in the legal descriptions in (A) Elevation: 3,000 to 5,243 ft (914 to Stenogyne kealiae–d, Kauai 20– paragraph (a)(1) of this section, 1,598 m). Stenogyne kealiae–e, Kauai 21– constitute critical habitat for Labordia (B) Annual precipitation: Greater than Stenogyne kealiae–f, and Kauai 22– helleri on Kauai. 75 inches (190 centimeters). Stenogyne kealiae–g, identified in the (i) In units Kauai 7–Labordia helleri– (C) Substrate: Well-developed soils, legal descriptions in paragraph (a)(1) of a and Kauai 11–Labordia helleri–e, the montane bogs. this section, constitute critical habitat primary constituent elements of critical (D) Canopy: Acacia, Charpentiera, for Stenogyne kealiae on Kauai. habitat are: Cheirodendron, Metrosideros. (i) In units Kauai 10–Stenogyne (A) Elevation: Less than 3,000 ft (914 (E) Subcanopy: Broussaisia, Cibotium, kealiae–a, Kauai 11–Stenogyne kealiae– m). Eurya, Ilex, Myrsine.
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(F) Understory: Ferns, Carex, this section, constitute critical habitat (i) Annual precipitation: Greater than Coprosma, Leptecophylla, Oreobolus, for Lysimachia iniki on Kauai. Within 75 inches (190 centimeters). Rhynchospora, Vaccinium. these units, the primary constituent (ii) Substrate: Greater than 65 degree * * * * * elements of critical habitat are: slope, shallow soils, weathered lava. (i) Annual precipitation: Greater than (iii) Subcanopy: Broussaisia, FAMILY LOGANIACEAE: Labordia 75 inches (190 centimeters). Cheirodendron, Leptecophylla, pumila (KAMAKAHALA) (ii) Substrate: Greater than 65 degree Metrosideros. Kauai 10–Labordia pumila–a, Kauai slope, shallow soils, weathered lava. (iv) Understory: Ferns, Bryophytes, 11–Labordia pumila–b, Kauai 23– (iii) Subcanopy: Broussaisia, Coprosoma, Dubautia, Kadua, Labordia pumila–c, Kauai 24–Labordia Cheirodendron, Leptecophylla, Peperomia. pumila–d, and Kauai 25–Labordia Metrosideros. (iv) Understory: Ferns, Bryophytes, FAMILY MYRSINACEAE: Myrsine pumila–e, identified in the legal knudsenii (KOLEA) descriptions in paragraph (a)(1) of this Coprosoma, Dubautia, Kadua, Peperomia. Kauai 11–Myrsine knudsenii–a, Kauai section, constitute critical habitat for 21–Myrsine knudsenii–b, and Kauai 22– Labordia pumila on Kauai. Within these FAMILY MYRSINACEAE: Lysimachia Myrsine knudsenii–c, identified in the units, the primary constituent elements pendens (NCN) legal descriptions in paragraph (a)(1) of of critical habitat are: Kauai 4–Lysimachia pendens–a, this section, constitute critical habitat (i) Elevation: 3,000 to 5,243 ft (914 to Kauai 10–Lysimachia pendens–b, Kauai for Myrsine knudsenii on Kauai. Within 1,598 m). 11–Lysimachia pendens–c, Kauai 18– these units, the primary constituent (ii) Annual precipitation: Greater than Lysimachia pendens–d, and Kauai 19– elements of critical habitat are: 75 inches (190 centimeters). Lysimachia pendens–e, identified in the (i) Elevation: 3,000 to 5,243 ft (914 to (iii) Substrate: Well-developed soils, legal descriptions in paragraph (a)(1) of 1,598 m). montane bogs. this section, constitute critical habitat (ii) Annual precipitation: 50 to 75 (iv) Canopy: Acacia, Charpentiera, for Lysimachia pendens on Kauai. inches (127 to 190 centimeters). Cheirodendron, Metrosideros. (iii) Substrate: Weathered aa lava (v) Subcanopy: Broussaisia, Cibotium, Within these units, the primary constituent elements of critical habitat flows, rocky mucks, thin silty loams, Eurya, Ilex, Myrsine. deep volcanic ash soils. (vi) Understory: Ferns, Carex, are: (i) Annual precipitation: Greater than (iv) Canopy: Acacia, Metrosideros, Coprosma, Leptecophylla, Oreobolus, 75 inches (190 centimeters). Psychotria, Tetraplasandra, Rhynchospora, Vaccinium. (ii) Substrate: Greater than 65 degree Zanthoxylum. (vii) Bogs. slope, shallow soils, weathered lava. (v) Subcanopy: Cheirodendron, * * * * * (iii) Subcanopy: Broussaisia, Coprosma, Kadua, Ilex, Myoporum, FAMILY MYRSINACEAE: Lysimachia Cheirodendron, Leptecophylla, Myrsine. (vi) Understory: Bidens, Dryopteris, daphnoides (LEHUA MAKANOE) Metrosideros. (iv) Understory: Ferns, Bryophytes, Leptecophylla, Poa, Scaevola, Sophora. Kauai 10–Lysimachia daphnoides–a, Coprosoma, Dubautia, Kadua, * * * * * Kauai 11–Lysimachia daphnoides–b, Peperomia. Kauai 23–Lysimachia daphnoides–c, FAMILY MYRSINACEAE: Myrsine Kauai 24–Lysimachia daphnoides–d, FAMILY MYRSINACEAE: Lysimachia mezii (KOLEA) and Kauai 25–Lysimachia daphnoides– scopulensis (NCN) Kauai 10–Myrsine mezii–a, Kauai 11– e, identified in the legal descriptions in Kauai 11–Lysimachia scopulensis–a, Myrsine mezii–b, Kauai 11–Myrsine paragraph (a)(1) of this section, identified in the legal description in mezii–c, Kauai 21–Myrsine mezii–d, constitute critical habitat for Lysimachia paragraph (a)(1) of this section, Kauai 22–Myrsine mezii–e, Kauai 23– daphnoides on Kauai. Within these constitutes critical habitat for Myrsine mezii–f, Kauai 24–Myrsine units, the primary constituent elements Lysimachia scopulensis on Kauai. mezii–g, and Kauai 25–Myrsine mezii–h, of critical habitat are: Within this unit, the primary identified in the legal descriptions in (i) Elevation: 3,000 to 5,243 ft (914 to constituent elements of critical habitat paragraph (a)(1) of this section, 1,598 m). are: constitute critical habitat for Myrsine (ii) Annual precipitation: Greater than (i) Annual precipitation: Less than 75 mezii on Kauai. 75 inches (190 centimeters). inches (190 centimeters). (i) In units Kauai 11–Myrsine mezii– (iii) Substrate: Well-developed soils, (ii) Substrate: Greater than 65 degree c, Kauai 21–Myrsine mezii–d, and Kauai montane bogs. slope, rocky talus. 22–Myrsine mezii–e, the primary (iv) Canopy: Acacia, Charpentiera, (iii) Subcanopy: Antidesma, constituent elements of critical habitat Cheirodendron, Metrosideros. Chamaesyce, Diospyros, Dodonaea. are: (v) Subcanopy: Broussaisia, Cibotium, (iv) Understory: Bidens, Eragrostis, (A) Elevation: 3,000 to 5,243 ft (914 to Eurya, Ilex, Myrsine. Melanthera, Schiedea. 1,598 m). (vi) Understory: Ferns, Carex, FAMILY MYRSINACEAE: Lysimachia (B) Annual precipitation: 50 to 75 Coprosma, Leptecophylla, Oreobolus, venosa (NCN) inches (127 to 190 centimeters). Rhynchospora, Vaccinium. (C) Substrate: Weathered aa lava (vii) Hummocks in bogs. Kauai 4–Lysimachia venosa–a, Kauai flows, rocky mucks, thin silty loams, 10–Lysimachia venosa–b, Kauai 11– FAMILY MYRSINACEAE: Lysimachia deep volcanic ash soils. Lysimachia venosa–c, Kauai 18– (D) Canopy: Acacia, Metrosideros, iniki (NCN) Lysimachia venosa–d, and Kauai 19– Psychotria, Tetraplasandra, Kauai 4–Lysimachia iniki–a, Kauai Lysimachia venosa–e, identified in the Zanthoxylum. 10–Lysimachia iniki–b, Kauai 11– legal descriptions in paragraph (a)(1) of (E) Subcanopy: Cheirodendron, Lysimachia iniki–c, Kauai 18– this section, constitute critical habitat Coprosma, Kadua, Ilex, Myoporum, Lysimachia iniki–d, and Kauai 19– for Lysimachia venosa on Kauai. Within Myrsine. Lysimachia iniki–e, identified in the these units, the primary constituent (F) Understory: Bidens, Dryopteris, legal descriptions in paragraph (a)(1) of elements of critical habitat are: Leptecophylla, Poa, Scaevola, Sophora.
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(ii) In units Kauai 10–Myrsine mezii– (B) Annual precipitation: 50 to 75 these units, the primary constituent a, Kauai 11–Myrsine mezii–b, Kauai 23– inches (127 to 190 centimeters). elements of critical habitat are: Myrsine mezii–f, Kauai 24–Myrsine (C) Substrate: Weathered aa lava (i) Elevation: 3,000 to 5,243 ft (914 to mezii–g, and Kauai 25–Myrsine mezii–h, flows, rocky mucks, thin silty loams, 1,598 m). the primary constituent elements of deep volcanic ash soils. (ii) Annual precipitation: Greater than critical habitat are: (D) Canopy: Acacia, Metrosideros, 75 inches (190 centimeters). (A) Elevation: 3,000 to 5,243 ft (914 to Psychotria, Tetraplasandra, (iii) Substrate: Well-developed soils, 1,598 m). Zanthoxylum. montane bogs. (B) Annual precipitation: Greater than (E) Subcanopy: Cheirodendron, (iv) Canopy: Acacia, Charpentiera, 75 inches (190 centimeters). Coprosma, Kadua, Ilex, Myoporum, Cheirodendron, Metrosideros. (C) Substrate: Well-developed soils, Myrsine. (v) Subcanopy: Broussaisia, Cibotium, montane bogs. (F) Understory: Bidens, Dryopteris, Eurya, Ilex, Myrsine. (D) Canopy: Acacia, Charpentiera, Leptecophylla, Poa, Scaevola, Sophora. (vi) Understory: Ferns, Carex, Cheirodendron, Metrosideros. (ii) In units Kauai 10–Psychotria Coprosma, Leptecophylla, Oreobolus, (E) Subcanopy: Broussaisia, Cibotium, grandiflora–a, Kauai 11–Psychotria Rhynchospora, Vaccinium. Eurya, Ilex, Myrsine. grandiflora–b, Kauai 23–Psychotria * * * * * (F) Understory: Ferns, Carex, grandiflora–f, Kauai 24–Psychotria FAMILY RUTACEAE: Melicope Coprosma, Leptecophylla, Oreobolus, grandiflora–g, and Kauai 25–Psychotria paniculata (ALANI) Rhynchospora, Vaccinium. grandiflora–h, the primary constituent * * * * * elements of critical habitat are: Kauai 10–Melicope paniculata–a, (A) Elevation: 3,000 to 5,243 ft (914 to Kauai 11–Melicope paniculata–b, and FAMILY PITTOSPORACEAE: 1,598 m). Kauai 20–Melicope paniculata–c, Pittosporum napaliense (HOAWA) (B) Annual precipitation: Greater than identified in the legal descriptions in Kauai 7–Pittosporum napaliense–a 75 inches (190 centimeters). paragraph (a)(1) of this section, and Kauai 11–Pittosporum napaliense– (C) Substrate: Well-developed soils, constitute critical habitat for Melicope b, identified in the legal descriptions in montane bogs. paniculata on Kauai. Within these units, paragraph (a)(1) of this section, (D) Canopy: Acacia, Charpentiera, the primary constituent elements of constitute critical habitat for Cheirodendron, Metrosideros. critical habitat are: Pittosporum napaliense on Kauai. (E) Subcanopy: Broussaisia, Cibotium, (i) Elevation: Less than 3,000 ft (914 Within these units, the primary Eurya, Ilex, Myrsine. m). constituent elements of critical habitat (F) Understory: Ferns, Carex, (ii) Annual precipitation: Greater than are: Coprosma, Leptecophylla, Oreobolus, 75 inches (190 centimeters). (iii) Substrate: Clays, ashbeds, deep (i) Elevation: Less than 3,000 ft (914 Rhynchospora, Vaccinium. well-drained soils, lowland bogs. m). (iv) Canopy: Antidesma, Metrosideros, (ii) Annual precipitation: 50 to 75 FAMILY RUBIACEAE: Psychotria hobdyi (KOPIKO) Myrsine, Pisonia, Psychotria. inches (127 to 190 centimeters). (v) Subcanopy: Cibotium, Claoxylon, (iii) Substrate: Shallow soils, little to Kauai 7–Psychotria hobdyi–a and Kadua, Melicope. no herbaceous layer. Kauai 11–Psychotria hobdyi–b, (vi) Understory: Alyxia, Cyrtandra, (iv) Canopy: Acacia, Diospyros, identified in the legal descriptions in Dicranopteris, Diplazium, Machaerina, Metrosideros, Myrsine, Pouteria, paragraph (a)(1) of this section, Microlepia. Santalum. constitute critical habitat for Psychotria (v) Subcanopy: Dodonaea, hobdyi on Kauai. Within these units, the FAMILY RUTACEAE: Melicope Freycinetia, Leptecophylla, Melanthera, primary constituent elements of critical puberula (ALANI) Osteomeles, Pleomele, Psydrax. habitat are: Kauai 10–Melicope puberula–a, Kauai (vi) Understory: Carex, Dicranopteris, (i) Elevation: Less than 3,000 ft (914 10–Melicope puberula–b, Kauai 11– Diplazium, Elaphoglossum, Peperomia. m). Melicope puberula–c, Kauai 11– * * * * * (ii) Annual precipitation: 50 to 75 Melicope puberula–d, Kauai 20– inches (127 to 190 centimeters). Melicope puberula–e, Kauai 23– FAMILY RUBIACEAE: Psychotria (iii) Substrate: Shallow soils, little to grandiflora (KOPIKO) Melicope puberula–f, Kauai 24– no herbaceous layer. Melicope puberula–g, and Kauai 25– Kauai 10–Psychotria grandiflora–a, (iv) Canopy: Acacia, Diospyros, Melicope puberula–h, identified in the Kauai 11–Psychotria grandiflora–b, Metrosideros, Myrsine, Pouteria, legal descriptions in paragraph (a)(1) of Kauai 11–Psychotria grandiflora–c, Santalum. this section, constitute critical habitat Kauai 21–Psychotria grandiflora–d, (v) Subcanopy: Dodonaea, for Melicope puberula on Kauai. Kauai 22–Psychotria grandiflora–e, Freycinetia, Leptecophylla, Melanthera, (i) In units Kauai 10–Melicope Kauai 23–Psychotria grandiflora–f, Osteomeles, Pleomele, Psydrax. puberula–b, Kauai 11–Melicope Kauai 24–Psychotria grandiflora–g, and (vi) Understory: Carex, Dicranopteris, puberula–d, and Kauai 20–Melicope Kauai 25–Psychotria grandiflora–h, Diplazium, Elaphoglossum, Peperomia. puberula–e, the primary constituent identified in the legal descriptions in FAMILY RUTACEAE: Melicope elements of critical habitat are: paragraph (a)(1) of this section, degeneri (ALANI) (A) Elevation: Less than 3,000 ft (914 constitute critical habitat for Psychotria m). grandiflora on Kauai. Kauai 10–Melicope degeneri–a, Kauai (B) Annual precipitation: Greater than (i) In units Kauai 11–Psychotria 11–Melicope degeneri–b, Kauai 23– 75 inches (190 centimeters). grandiflora–c, Kauai 21–Psychotria Melicope degeneri–c, Kauai 24– (C) Substrate: Clays, ashbeds, deep grandiflora–d, and Kauai 22–Psychotria Melicope degeneri–d, and Kauai 25– well-drained soils, lowland bogs. grandiflora–e, the primary constituent Melicope degeneri–e, identified in the (D) Canopy: Antidesma, Metrosideros, elements of critical habitat are: legal descriptions in paragraph (a)(1) of Myrsine, Pisonia, Psychotria. (A) Elevation: 3,000 to 5,243 ft (914 to this section, constitute critical habitat (E) Subcanopy: Cibotium, Claoxylon, 1,598 m). for Melicope degeneri on Kauai. Within Kadua, Melicope.
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(F) Understory: Alyxia, Cyrtandra, (A) Elevation: Less than 3,000 ft (914 (D) Understory: Ferns, Bryophytes, Dicranopteris, Diplazium, Machaerina, m). Coprosoma, Dubautia, Kadua, Microlepia. (B) Annual precipitation: Greater than Peperomia. (ii) In units Kauai 10–Melicope 75 inches (190 centimeters). * * * * * puberula–a, Kauai 11–Melicope (C) Substrate: Clays, ashbeds, deep (2) * * * puberula–c, Kauai 23–Melicope well-drained soils, lowland bogs. * * * * * puberula–f, Kauai 24–Melicope (D) Canopy: Antidesma, Metrosideros, puberula–g, and Kauai 25–Melicope Myrsine, Pisonia, Psychotria. FAMILY ASPLENIACEAE: Diellia puberula–h, the primary constituent (E) Subcanopy: Cibotium, Claoxylon, mannii (NCN) elements of critical habitat are: Kadua, Melicope. Kauai 11–Diellia mannii–a, Kauai 21– (A) Elevation: 3,000 to 5,243 ft (914 to (F) Understory: Alyxia, Cyrtandra, Diellia mannii–b, and Kauai 22–Diellia 1,598 m). mannii–c, identified in the legal (B) Annual precipitation: Greater than Dicranopteris, Diplazium, Machaerina, descriptions in paragraph (a)(1) of this 75 inches (190 centimeters). Microlepia. section, constitute critical habitat for (C) Substrate: Well-developed soils, (iii) In units Kauai 11–Platydesma montane bogs. rostrata–j, Kauai 21–Platydesma Diellia mannii on Kauai. Within these (D) Canopy: Acacia, Charpentiera, rostrata–n, and Kauai 22–Platydesma units, the primary constituent elements Cheirodendron, Metrosideros. rostrata–o, the primary constituent of critical habitat are: (E) Subcanopy: Broussaisia, Cibotium, elements of critical habitat are: (i) Elevation: 3,000 to 5,243 ft (914 to Eurya, Ilex, Myrsine. (A) Elevation: 3,000 to 5,243 ft (914 to 1,598 m). (F) Understory: Ferns, Carex, 1,598 m). (ii) Annual precipitation: 50 to 75 inches (127 to 190 centimeters). Coprosma, Leptecophylla, Oreobolus, (B) Annual precipitation: 50 to 75 Rhynchospora, Vaccinium. (iii) Substrate: Weathered aa lava inches (127 to 190 centimeters). flows, rocky mucks, thin silty loams, FAMILY RUTACEAE: Platydesma (C) Substrate: Weathered aa lava deep volcanic ash soils. rostrata (PILO KEA LAU LII) flows, rocky mucks, thin silty loams, (iv) Canopy: Acacia, Metrosideros, deep volcanic ash soils. Kauai 4–Platydesma rostrata–a, Kauai Psychotria, Tetraplasandra, (D) Canopy: Acacia, Metrosideros, 7–Platydesma rostrata–b, Kauai 10– Zanthoxylum. Psychotria, Tetraplasandra, Platydesma rostrata–c, Kauai 10– (v) Subcanopy: Cheirodendron, Zanthoxylum. Platydesma rostrata–d, Kauai 10– Coprosma, Kadua, Ilex, Myoporum, Platydesma rostrata–e, Kauai 11– (E) Subcanopy: Cheirodendron, Myrsine. Platydesma rostrata–f, Kauai 11– Coprosma, Kadua, Ilex, Myoporum, (vi) Understory: Bidens, Dryopteris, Platydesma rostrata–g, Kauai 11– Myrsine. Leptecophylla, Poa, Scaevola, Sophora. Platydesma rostrata–h, Kauai 11– (F) Understory: Bidens, Dryopteris, * * * * * Leptecophylla, Poa, Scaevola, Sophora. Platydesma rostrata–i, Kauai 11– FAMILY DRYOPTERIDACEAE: Platydesma rostrata–j, Kauai 18– (iv) In units Kauai 10–Platydesma rostrata–c, Kauai 11–Platydesma Dryopteris crinalis var. podosorus Platydesma rostrata–k, Kauai 19– (PALAPALAI AUMAKUA) Platydesma rostrata–l, Kauai 20– rostrata–f, Kauai 23–Platydesma Platydesma rostrata–m, Kauai 21– rostrata–p, Kauai 24–Platydesma Kauai 10–Dryopteris crinalis var. Platydesma rostrata–n, Kauai 22– rostrata–q, and Kauai 25–Platydesma podosorus–a, Kauai 11–Dryopteris Platydesma rostrata–o, Kauai 23– rostrata–r, the primary constituent crinalis var. podosorus–b, Kauai 23– Platydesma rostrata–p, Kauai 24– elements of critical habitat are: Dryopteris crinalis var. podosorus–c, Platydesma rostrata–q, and Kauai 25– (A) Elevation: 3,000 to 5,243 ft (914 to Kauai 24–Dryopteris crinalis var. Platydesma rostrata–r, identified in the 1,598 m). podosorus–d, and Kauai 25–Dryopteris legal descriptions in paragraph (a)(1) of (B) Annual precipitation: Greater than crinalis var. podosorus–e, identified in this section, constitute critical habitat 75 inches (190 centimeters). the legal descriptions in paragraph (a)(1) for Platydesma rostrata on Kauai. (C) Substrate: Well-developed soils, of this section, constitute critical habitat (i) In units Kauai 7–Platydesma montane bogs. for Dryopteris crinalis var. podosorus on rostrata–b and Kauai 11–Platydesma (D) Canopy: Acacia, Charpentiera, Kauai. Within these units, the primary rostrata–g, the primary constituent Cheirodendron, Metrosideros. constituent elements of critical habitat elements of critical habitat are: (E) Subcanopy: Broussaisia, Cibotium, are: (A) Elevation: Less than 3,000 ft (914 Eurya, Ilex, Myrsine. (i) Elevation: 3,000 to 5,243 ft (914 to m). (F) Understory: Ferns, Carex, 1,598 m). (ii) Annual precipitation: Greater than (B) Annual precipitation: 50 to 75 Coprosma, Leptecophylla, Oreobolus, 75 inches (190 centimeters). inches (127 to 190 centimeters). Rhynchospora, Vaccinium. (C) Substrate: Shallow soils, little to (iii) Substrate: Well-developed soils, (v) In units Kauai 4–Platydesma no herbaceous layer. montane bogs. (D) Canopy: Acacia, Diospyros, rostrata–a, Kauai 10–Platydesma (iv) Canopy: Acacia, Charpentiera, Metrosideros, Myrsine, Pouteria, rostrata–e, Kauai 11–Platydesma Cheirodendron, Metrosideros. Santalum. rostrata–i, Kauai 18–Platydesma (v) Subcanopy: Broussaisia, Cibotium, (E) Subcanopy: Dodonaea, rostrata–k, and Kauai 19–Platydesma Eurya, Ilex, Myrsine. Freycinetia, Leptecophylla, Melanthera, rostrata–l, the primary constituent (vi) Understory: Ferns, Carex, Osteomeles, Pleomele, Psydrax. elements of critical habitat are: Coprosma, Leptecophylla, Oreobolus, (F) Understory: Carex, Dicranopteris, (A) Annual precipitation: Greater than Rhynchospora, Vaccinium. Diplazium, Elaphoglossum, Peperomia. 75 inches (190 centimeters). * * * * * (ii) In units Kauai 10–Platydesma (B) Substrate: Greater than 65 degree rostrata–d, Kauai 11–Platydesma slope, shallow soils, weathered lava. FAMILY PTERIDACEAE: Doryopteris rostrata–h, and Kauai 20–Platydesma (C) Subcanopy: Broussaisia, angelica (NCN) rostrata–m, the primary constituent Cheirodendron, Leptecophylla, Kauai 7–Doryopteris angelica–a and elements of critical habitat are: Metrosideros. Kauai 11–Doryopteris angelica–b,
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identified in the legal descriptions in (iii) Substrate: Shallow soils, little to (vi) Understory: Carex, Dicranopteris, paragraph (a)(1) of this section, no herbaceous layer. Diplazium, Elaphoglossum, Peperomia. constitute critical habitat for Doryopteris (iv) Canopy: Acacia, Diospyros, * * * * * angelica on Kauai. Within these units, Metrosideros, Myrsine, Pouteria, Dated: January 21, 2010 the primary constituent elements of Santalum. critical habitat are: Thomas L. Strickland (i) Elevation: Less than 3,000 ft (914 (v) Subcanopy: Dodonaea, Assistant Secretary for Fish and Wildlife and m). Freycinetia, Leptecophylla, Melanthera, Parks (ii) Annual precipitation: 50 to 75 Osteomeles, Pleomele, Psydrax. [FR Doc. 2010–1904 Filed 4–12–10; 8:45 am] inches (127 to 190 centimeters). BILLING CODE 4310–55–S
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Part III
Department of Defense General Services Administration National Aeronautics and Space Administration 48 CFR Chapter 1 Federal Acquisition Regulations; Federal Acquisition Circular 2005–41; Introduction; FAR Case 2009–005, Use of Project Labor Agreements for Federal Construction Projects; Federal Acquisition Circular 2005–41; Small Entity Compliance Guide; Final Rules
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DEPARTMENT OF DEFENSE and National Aeronautics and Space DATES: For effective date, see separate Administration (NASA). document, which follows. GENERAL SERVICES ADMINISTRATION ACTION: Summary presentation of final FOR FURTHER INFORMATION CONTACT: The rule. analyst whose name appears in the table NATIONAL AERONAUTICS AND below. Please cite FAC 2005–41 and the SPACE ADMINISTRATION SUMMARY: This document summarizes specific FAR case number. For the Federal Acquisition Regulation information pertaining to status or 48 CFR Chapter 1 (FAR) rule agreed to by GSA, DoD, and publication schedules, contact the FAR NASA in this Federal Acquisition Secretariat at (202) 501–4755. [Docket FAR 2010–0076, Sequence 3] Circular (FAC) 2005–41. A companion Federal Acquisition Regulation; document, the Small Entity Compliance Federal Acquisition Circular 2005–41; Guide (SECG), follows this FAC. The Introduction FAC, including the SECG, is available via the Internet at http:// AGENCIES: Department of Defense (DoD), www.regulations.gov. General Services Administration (GSA),
RULE LISTED IN FAC 2005–41
Subject FAR case Analyst
Use of Project Labor Agreements for Federal Construction Projects ...... 2009–005 Woodson.
SUPPLEMENTARY INFORMATION: A Dated: April 2, 2010. DEPARTMENT OF DEFENSE summary for the FAR rule follows. For Al Matera, the actual revisions and/or amendments Director, Acquisition Policy Division. GENERAL SERVICES made by this FAR case, refer to FAR ADMINISTRATION Case 2009–005. Federal Acquisition Circular NATIONAL AERONAUTICS AND FAC 2005–41 amends the FAR as Federal Acquisition Circular (FAC) SPACE ADMINISTRATION specified below: 2005-41 is issued under the authority of the Secretary of Defense, the Use of Project Labor Agreements for 48 CFR Parts 2, 7, 17, 22, and 52 Administrator of General Services, and Federal Construction Projects (FAR the Administrator for the National Case 2009–005) [FAC 2005–41; FAR Case 2009–005; Item Aeronautics and Space Administration. I; Docket 2009–0024, Sequence 1] This final rule amends the FAR to Unless otherwise specified, all implement Executive Order (E.O.) Federal Acquisition Regulation (FAR) RIN 9000–AL31 13502, Use of Project Labor Agreements and other directive material contained for Federal Construction Projects. The Federal Acquisition Regulation; FAR in FAC 2005-41 is effective May 13, Case 2009–005, Use of Project Labor E.O. encourages the use of project labor 2010. Agreements for Federal Construction agreements for Federal construction Dated: April 1, 2010. Projects projects where the total cost to the Shay D. Assad, Government is $25 million or more in AGENCIES: Department of Defense (DoD), order to promote economy and Director, Defense Procurement and General Services Administration (GSA), efficiency in Federal procurement. The Acquisition Policy. and National Aeronautics and Space rule provides that an agency may, if Dated: April 2, 2010. Administration (NASA). appropriate, require that every Rodney P. Lantier, ACTION: Final rule. contractor and subcontractor engaged in Acting Senior Procurement Executive, Office construction on a construction project SUMMARY: GSA, DOD, and NASA are of Acquisition Policy, U.S. General Services issuing a final rule amending the agree, for that project, to negotiate or Administration. become a party to a project labor Federal Acquisition Regulation (FAR) to agreement with one or more labor Dated: April 1, 2010. implement Executive Order (E.O.) organizations. The rule identifies factors William P. McNally, 13502, Use of Project Labor Agreements for Federal Construction Projects. The that agencies may consider to help them Assistant Administrator for Procurement, E.O. encourages the use of project labor decide, on a case-by-case basis, whether National Aeronautics and Space agreements for large-scale Federal the use of a project labor agreement is Administration. construction projects in order to [FR Doc. 2010–8117 Filed 4–12–10; 8:45 am] likely to promote economy and promote economy and efficiency in efficiency in the performance of a BILLING CODE 6820–EP–S Federal procurement. specific construction project, and DATES: Effective Date: May 13, 2010. multiple strategies for timing the Federal Government’s receipt of project FOR FURTHER INFORMATION CONTACT: For labor agreements. clarification of content, contact Mr. Ernest Woodson, Procurement Analyst, at (202) 501–3775. For information pertaining to status or publication schedules, contact the Regulatory
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Secretariat at (202) 501–4755. Please Federal Government’s interest in There is no reason to expect these defining cite FAC 2005–41, FAR case 2009–005. achieving economy and efficiency in features of the construction industry to depend upon the public or private nature of SUPPLEMENTARY INFORMATION: Federal procurement, producing labor- management stability, and ensuring the entity purchasing contracting services. To A. Background compliance with laws and regulations the extent that a private purchaser may choose a contractor based upon that This final rule amends the Federal governing safety and health, equal contractor’s willingness to enter into a Acquisition Regulation to implement employment opportunity, labor and prehire agreement, a public entity as Executive Order (E.O.) 13502, signed by employment standards, and other purchaser should be permitted to do the President Obama on February 6, 2009, matters, and (ii) be consistent with law.’’ same. Confronted with such a purchaser, and published in the Federal Register at Section 1 of the E.O. explains the those contractors who do not normally enter 74 FR 6985, February 11, 2009. The E.O. rationale underlying the policy for such agreements are faced with a choice. encourages Federal agencies to consider encouraging the use of project labor They may alter their usual mode of operation the use of a project labor agreement, as agreements on large-scale Federal to secure the business opportunity at hand, they may decide appropriate, on large- construction projects: or seek business from purchasers whose scale construction projects, where the a) Large-scale construction projects perceived needs do not include a project pose special challenges to efficient and labor agreement. total cost to the Government is $25 Boston Harbor, 507 U.S. at 231 million or more, in order to promote timely procurement by the Federal Government. Construction employers (emphasis in original). economy and efficiency in Federal Use of project labor agreements by procurement. A project labor agreement typically do not have a permanent workforce, which makes it difficult for public entities has been sanctioned is a pre-hire collective bargaining repeatedly where agencies ensure that agreement with one or more labor them to predict labor costs when bidding on contracts and to ensure a their actions are tailored to reflect their organizations that establishes the terms proprietary interests and do not and conditions of employment for a steady supply of labor on contracts being performed. Challenges also arise prescribe how Government contractors specific construction project. and subcontractors handle their labor The E.O. establishes requirements and due to the fact that construction projects relations beyond performance of the standards that must be met by Federal typically involve multiple employers at specific Government construction agencies when using project labor a single location. A labor dispute project involved. See id.; Associated agreements. Specifically, such involving one employer can delay the General Contractors of America v. agreements must— entire project. A lack of coordination a) Bind all contractors and among various employers, or Metropolitan Water Dist. of So. Cal., 159 subcontractors on the construction uncertainty about the terms and F.3d 1178, 1182–84 (9th Cir. 1998); project through the inclusion of conditions of employment of various Sheet Metal Workers Intern. Ass’n Local appropriate specifications in all relevant groups of workers, can create frictions Union No. 27, AFL-CIO v. E.P. Donnelly, ll ll solicitation provisions and contract and disputes in the absence of an F.Supp.2d , 2009 WL 4667101 documents; agreed-upon resolution mechanism. (D.N.J. 2009). The use of project labor b) Allow all contractors and These problems threaten the efficient agreements on Federal and other subcontractors to compete for contracts and timely completion of construction publicly funded projects, such as dams, and subcontracts without regard to projects undertaken by Federal defense installations, and atomic energy whether they are otherwise parties to contractors. On larger projects, which facilities, can be traced back many collective bargaining agreements; are generally more complex and of decades. The Government c) Contain guarantees against strikes, longer duration, these problems tend to Accountability Office (GAO), in a 1998 lockouts, and similar job disruptions; be more pronounced. study, described use of project labor d) Set forth effective, prompt, and b) The use of a project labor agreements in connection with the mutually binding procedures for agreement may prevent these problems construction of the Grand Coulee Dam resolving labor disputes arising during from developing by providing structure in Washington State in 1938, the Shasta the project labor agreement; and stability to large-scale construction Dam in California in 1940, atomic e) Provide other mechanisms for projects, thereby promoting the efficient energy and defense construction labor-management cooperation on and expeditious completion of Federal projects during and after the Second matters of mutual interest and concern, construction contracts. . . . World War, and construction at Cape including productivity, quality of work, While the E.O.’s explicit policy Canaveral by NASA during the 1960s. safety, and health; and focuses on large-scale construction U.S. Gen. Accounting Office Project f) Fully conform to all statutes, contracts, section 5 states that the E.O. Labor Agreements: The Extent of Their regulations, and Executive orders. does not preclude use of a project labor Use and Related Information (GAO E.O. 13502 is an exercise of the agreement in circumstances not covered Report), GAO/GGD–98–82 (May 1998), President’s authority under the Federal by the order, including leasehold at page 4. At the time GAO reviewed Property and Administrative Services arrangements and projects receiving Federal use of project labor agreements Act to prescribe policies and directives Federal financial assistance. in 1998, four agencies—the Department governing procurement policy ‘‘that the The Supreme Court has recognized of Energy (DoE), DoD, the Tennessee President considers necessary to carry that project labor agreements are valid Valley Authority (TVA), and NASA— out’’ that Act and that are ‘‘consistent’’ pre-hire agreements under sections 8(e) had a total of 26 projects covered by with the Act’s purpose of ‘‘provid[ing] and (f) of the National Labor Relations project labor agreements. GAO Report at the Federal Government with an Act, which authorizes the use of these 2. economical and efficient’’ procurement agreements in the construction industry. DoE has invoked the authority of Pub. system. 40 U.S.C. 101, 121. Section 3(a) See Building and Construction Trades L. 85–804 to require the use of project of the E.O. states that executive agencies Council v. Associated Builders, 507 U.S. labor agreements by contractors and may, on a project-by-project basis, 218 (1993) (‘‘Boston Harbor’’). The subcontractors at certain of the require the use of a project labor Supreme Court has rejected arguments Department’s facilities. Project labor agreement by a contractor where use of that project labor agreements are agreements have been, and continue to such an agreement will ‘‘(i) advance the inappropriate for use by a public entity: be, used at a majority of DoE’s key sites,
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including the Hanford Site in Projects,’’ June 5, 1997). E.O. 13202 of Labor Agreements for Federal Washington State, the Savannah River February 17, 2001 and E.O. 13208 of Construction Projects, to implement the Site in South Carolina, the Oak Ridge April 6, 2001 again prevented agencies provisions of E.O. 13502. The proposed Reservation in Tennessee, the Nevada from requiring the use of project labor rule— Test Site (NTS), and the Idaho National agreements. This restriction remained in • Stated that agencies are encouraged Laboratory. The project labor agreement effect from early 2001 until early 2009 to consider requiring the use of project at the NTS dates back to 1964. when section 8 of E.O. 13502 revoked labor agreements in connection with As of the summer of 2009, 21 of 25 E.O. 13202 and E.O. 13208. large-scale construction projects; DoE construction projects were, or were Use of project labor agreements has • Described the general requirements slated to be, covered by project labor not been limited to Federal construction for use of project labor agreements, agreements. Challenges to the use of projects. Project labor agreements have including the standards that must be project labor agreements at DOE sites been used at the State and municipal met by project labor agreements, as have been successfully defended. See, levels as well. Project labor agreements specified in section 4 of the E.O., which e.g., Phoenix Engineering, Inc. v. MK- have been used in all 50 States and the includes allowing any contractors and Ferguson of Oak Ridge Co., 966 F.2d District of Columbia. Use of project subcontracts to compete for contracts 1513, 1518–22 (6th Cir. 1992). labor agreements at the State and local and subcontracts without regard to Current and past DoE representatives level has been connected to an array of whether they are otherwise parties to have stated that project labor construction projects covering an collective bargaining agreements; and agreements have contributed to expanding range and size of projects— • Created new solicitation provisions economy and efficiency of DoE from schools, hospitals, roads, bridges, and contract clauses that (i) would be construction projects, including and police buildings, to convention used in large-scale construction projects completion of projects on time and centers, courthouses, manufacturing where the agency makes a within budget, by, among other things— facilities, airports, power plants, transit determination that a project labor • Providing a mechanism for systems, stadiums, and a prison. Project agreement will be required, and (ii) coordinating wages, hours, work rules, labor agreements have been used in would give agencies the flexibility to and other terms of employment across connection not only with new require that project labor agreements be the project; construction, but also with demolition, executed either prior to award from the • Creating structure and stability restoration, and reconstruction. apparent successful offeror or after through the use of broad provisions for Project labor agreements have also award from the awardee. grievance and arbitration of any been used by the private sector for a Based on the comments received on disputes that may arise on site, variety of construction projects that are the proposed rule (which are discussed including procedures for resolving similar in nature to those undertaken in in greater detail below) and additional disputes among the construction crafts; the public sector, including for deliberations, GSA, DoD, and NASA • Prohibiting work stoppages, manufacturing plants, power plants, have adopted a final rule that— slowdowns, or strikes for the duration of parking structures, and stadiums. For 1) Encourages agency planners to a project and obligating senior union example, project labor agreements have consider use of project labor agreements management to use their best efforts to been used in connection with building early in the acquisition process—i.e., prevent any threats of disruptions of such high profile facilities as the trans- during acquisition planning (FAR work that might arise; and Alaska pipeline and Disney World. GAO 7.103); • Ensuring expeditious access to a Report at 4. According to one study on 2) Clarifies the policy for using project well trained, assured supply of skilled private sector experiences in California, labor agreements to more closely track labor, even in remote areas where companies wanted ‘‘project labor the terms of the E.O. (FAR 22.503(b)); skilled labor would have otherwise been agreements in order to meet their speed- 3) Identifies a number of factors that extremely difficult to find in a timely to-market demands, and ensure against agencies may consider to help them fashion. delays that can be caused by worker decide, on a case-by-case basis, whether TVA has used project labor shortages, work stoppages or collective the use of a project labor agreement is agreements on its construction projects bargaining negotiations.’’ See Kimberly likely to promote economy and for nearly 19 years. In the nearly 200 Johnston-Dodds, CA State Library, efficiency in the performance of a million man hours of work on TVA Constructing California: A Review of specific construction project, such as construction projects using project labor Project Labor Agreements 59 (2001). whether the project will require agreements, there have been no formal multiple construction contractors and/ strikes or any organized work stoppages. B. FAR Rulemaking or subcontractors employing workers in The rate of injury on TVA projects has Section 7 of E.O. 13502 directed GSA, multiple crafts or trades or whether also been significantly reduced, DoD, and NASA to amend the FAR to there is a shortage of skilled labor in the especially over the last approximately 5 implement the provisions of the E.O. region in which the construction project years. Accordingly, GSA, DoD, and NASA will be sited (FAR 22.503(c)); Federal use of project labor issued a final rule in the Federal 4) Makes clear that a solicitation may agreements has been curtailed twice Register at 74 FR 34206, on July 14, include project labor agreement since 1992, including most of the past 2009, rescinding FAR 36.202(d), a FAR requirements that are in addition to decade. E.O. 12818 of October 23, 1992 provision that had prohibited agencies those specified in section 4 of the E.O., prohibited agencies from requiring the from requiring project labor agreements. as the agency deems necessary to satisfy use of project labor agreements by any This prohibition had implemented E.O. its needs (FAR 22.504(b)(6)); parties to Federal construction projects, 13202 and E.O. 13208—E.O.s that were 5) States that an agency may specify although this bar was removed in 1993, revoked by section 8 of E.O. 13502. in the solicitation, as appropriate to by E.O. 12836, and a Presidential On the same date, GSA, DoD, and advance economy and efficiency in a Memorandum was issued in 1997 to NASA also published for public given procurement, the terms and encourage the use of project labor comment a proposed rule in the Federal conditions of the project labor agreements (see ‘‘Use of Project Labor Register at 74 FR 33953, to provide a agreement and require the successful Agreements for Federal Construction new FAR subpart 22.5, Use of Project offeror to become a party to a project
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labor agreement containing these terms C. Response to Comments Received on A second group of comments focused and conditions as a condition of the Notice of Proposed Rulemaking on reducing discretion in favor of a receiving a contract award (FAR more defined procedure that would 22.504(c)); and GSA, DoD, and NASA received drive agencies to particular outcomes. In 6) Modifies the proposed solicitation comments from more than 700 particular, some respondents in this provisions and contract clauses to give respondents on the proposed rule, group wanted the rule to identify factors agency contracting officers the which was published in the Federal that, if met, would create a presumption additional option of requiring offerors to Register at 74 FR 33953 on July 14, 2009 in favor of a project labor agreement. For submit a copy of the project labor for a comment period that originally example, some of these respondents agreement with their offers (FAR closed on August 13, 2009. At the suggested that the use of a project labor 52.222–33 and 52.222–34). request of a respondent, the comment agreement should be presumed The final rule is structured to period was re-opened and extended appropriate if the project: (i) was over a maximize an agency’s ability to identify through September 23, 2009 (74 FR certain dollar amount, such as $25 and successfully use project labor 42639, August 24, 2009). Copies of the million, (ii) would involve two or more agreements when doing so promotes comments received by GSA, DoD, and contractors at a single site, (iii) would be economy and efficiency. NASA are available for review at performed over an extended timeframe, • The rule encourages agency www.regulations.gov. Approximately or (iv) was for a certain type of managers and members of the 650 of the comments were submitted in requirement, such as a public work. acquisition team to work together in the format of one of several form letters, Some of these respondents were evaluating whether to use a project labor or short email that expressed opposition particularly troubled by a statement in agreement and to start the evaluation to the use of project labor agreements the proposed rule that the agency has early in the planning process, so that all but did not directly address the ‘‘complete discretion’’ to require or not relevant circumstances and the needs of proposed rule. Approximately 50 require a project labor agreement. Other stakeholders can be fully considered in responses that were not form letters or respondents wanted the rule to more deciding what is best for the agency in short emails included roughly equal expressly place the burden on the meeting its mission. numbers supporting and opposing the agency to justify the use of project labor • Consistent with the express terms of use of project labor agreements. (In agreements. These respondents the E.O., the final rule preserves the addition, about eight responses were requested that the rule identify factors flexibility agencies need to evaluate neutral in their overall tone toward the that, unless met, would prohibit use of whether a project labor agreement is use of project labor agreements.) a project labor agreement. For example, appropriate for a given construction Comments largely focused on (1) the a project labor agreement would not be project. This discretion helps to ensure exercise of agency discretion in permitted unless the agency that agencies will have the opportunity deciding whether to require a project demonstrates that there have been labor- to bring their relevant experiences to labor agreement, (2) the content of related disruptions causing delays or bear on circumstances particular to a project labor agreements generally and cost overruns on similar Federal project, such as whether similar projects the role of Federal agencies in projects undertaken by the agency in the previously undertaken by the agency developing the terms of the project labor geographic area of the project. have experienced substantial delays or agreements, and (3) the timing of A third group of comments focused inefficiencies due to labor disputes or entering the project labor agreement. As on identifying factors or standards that labor shortages in a particular locale or discussed above, GSA, DoD, and NASA agencies could use to aid in their job classification. project-by-project consideration of • made a number of changes to the rule The rule helps agencies to analyze based on public comments and whether to require a project labor whether a project labor agreement may additional deliberations. A summary agreement. Many of these comments be beneficial. The factors set forth in the description of the comments and GSA, were offered in response to an invitation rule reflect the experience of Federal DoD, and NASA responses and changes by GSA, DoD, and NASA in the Federal agencies, such as DOE and TVA, and adopted in the final rule are set forth Register notice for input on the types of other governmental and private sector below. factors that might assist agencies in entities, to analyze planned giving meaningful consideration to the 1. The Use of Discretion construction projects for the purpose of use of project labor agreements. Some identifying if a project labor agreement Summary of comments: Many of the comments expressed the concern that is likely to promote smooth, successful, respondents, including Federal without meaningful factors, agency and timely performance of a agencies, Government contractors, labor decision-making could become construction project. organizations, trade associations, and arbitrary. Many of the suggested factors • The rule includes various individuals, commented on the level of focus on helping agencies identify approaches regarding when to submit an discretion an agency should be afforded circumstances where project labor executed project labor agreement on a in deciding whether to require a project agreements may be beneficial. Some particular project (e.g., submission with labor agreement on a particular examples include— the initial offer, after offers are construction project and the manner in • Whether the project will require the submitted but before award, or after which such discretion is exercised. services of two or more construction award), and options for specifying the Comments on this subject generally fell contractors or subcontractors that specific terms and conditions of the into one of three groups. One group of together employ workers in two or more project labor agreement in the comments focused on the need to retain crafts or trades; solicitation—a practice that has been agency discretion. These comments, • Whether labor disputes threaten used successfully by entities which were offered principally by timely completion of the project; experienced with project labor Federal agencies, sought to ensure that • Whether completion of the project agreements. These alternatives will Government organizations are able to will require an extended period of time allow agencies to choose the approach bring their relevant experiences to bear (e.g., extending beyond one construction that makes the most sense for their on the circumstances particular to a season or beyond the expiration date of project and best fits with their mission. project. one or more collective bargaining
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agreements covering trades likely to be achieving economy and efficiency in relevant circumstances and the needs of involved in the project); and Federal procurement.’’ stakeholders can be fully considered in • Whether there is a need for a GSA, DoD, and NASA agree with the identifying actions that would assist the substantial number of experienced, general recommendation to provide agency in performing its mission skilled building trades and craft workers additional factors in the final rule that effectively and efficiently. Accordingly, and the ability to obtain specialized can help agencies evaluate whether use the final rule has been amended to skills through the use of hiring halls. of a project labor agreement would be encourage agency planners to consider Several respondents emphasized that beneficial for a particular construction the use of a project labor agreement agencies should initiate their project. GSA, DoD, and NASA believe during acquisition planning. consideration of project labor that flexible factors would support the The recommended additions agreements early in the acquisition E.O.’s policy of encouraging the regarding impact were not necessary, process, and with the input of all consideration of project labor because the agencies are permitted to affected agency stakeholders, as this agreements. GSA, DoD, and NASA consider any factor that the agency would improve the agency’s ability to carefully reviewed the many suggestions considers appropriate. With respect to evaluate whether it is appropriate to respondents made for specific factors, small business contracting, in require the use of a project labor looking for those factors, in particular, particular, the policies in this rule agreement. that agencies might reasonably apply to should be read in conjunction with Other respondents wanted to ensure the facts of a given project to help those in FAR part 19 speaking to small that agencies document the decision to determine whether using a project labor business participation. use, or not to use, a project labor agreement would promote economy and Finally, both proposed and final rules make clear that project labor agreements agreement. efficiency. GSA, DoD, and NASA agreed established pursuant to the rule ‘‘must Some factors offered by respondents to the following non-exhaustive list of fully conform to all statutes, regulations, sought to ensure that proper factors that agencies may consider, in and Executive orders.’’ Agencies consideration would be given to the their discretion, in deciding whether a requiring project labor agreements must potential impact, such as impact on project labor agreement is appropriate therefore undertake appropriate legal small businesses, of using a project for use in a given construction project: (1) The project will require multiple review in implementing the rule. GSA, labor agreement before the agency DoD, and NASA do not, however, agree requires its use in a given construction construction contractors and/or subcontractors employing workers in with the commenter who claimed a project. At least one respondent need for an additional legal review recommended that agencies evaluate the multiple crafts or trades. (2) There is a shortage of skilled labor process to implement the rule, apart legal impact of using a project labor in the region in which the construction from the process otherwise utilized by agreement, including compliance with project will be sited. agencies in the course of making the National Labor Relations Act, the (3) Completion of the project will procurement determinations. Employee Retirement Income Security require an extended period of time. 2. Content of project labor agreement Act, the Small Business Act, and the (4) Project labor agreements have been A number of respondents addressed Competition in Contracting Act. used on comparable projects undertaken the contents of project labor agreements. Response: GSA, DoD, and NASA by Federal, State, municipal, or private Some offered views about the strongly support affording agencies entities in the geographic area of the requirements and issues addressed in a discretion in the use of project labor project. project labor agreement. Others agreements. As explained in the FAR (5) A project labor agreement will commented on the Government’s role in Rulemaking section above, discussing promote the agency’s long term program specifying the terms of a project labor the development of the regulation, GSA, interests, facilitating the training of a agreement. DoD, and NASA believe this discretion skilled workforce to meet the agency’s • a. Comments related to issues is central to agencies’ ability to improve future construction needs. covered in project labor agreements. the economy and efficiency of a Federal (6) Any other factors that the agency Some respondents requested that construction project. However, GSA, decides are appropriate. guidance clarify how project labor DoD, and NASA agree with the concern In order to preserve agency discretion, agreement requirements and terms that the ‘‘complete discretion’’ language GSA, DoD, and NASA believe that the handle contractors who are not in the proposed rule is not appropriately rule should not mandate consideration otherwise parties to a collective tailored to the policies of E.O. 13502 of these factors. For this reason, the final bargaining agreement with respect to and, for this reason, have deleted this rule leaves an agency free to decide their use of existing employees, at least language from the final rule in favor of whether it will adopt some or all of the their core workers, and the extent to language that more closely tracks the factors (or any other factor that the which such employees must contribute wording and structure of E.O. 13502 in agency considers to be appropriate) as to union benefits trust funds. A number its discussion of general policy. part of its own procedures. Similarly, of these comments were raised in GSA, DoD, and NASA disagree with how an organization structures its connection with fears that use of project the recommendations to reduce review team, draws upon agency or labor agreements could unduly restrict discretion and create inflexible external resources, documents any the participation of open shop presumptions favoring or disfavoring decisions relating to the use of a project contractors in competition for Federal the use of project labor agreements. labor agreement, and addresses similar construction projects. One respondent Such presumptions would be management matters is left to the suggested that the content of project inconsistent with the E.O.’s emphasis, discretion of each agency. labor agreements be limited to (i) a as stated in section 3(a), on allowing In addition, GSA, DoD, and NASA prohibition against union strikes, and agencies to evaluate each construction agree with respondents who (ii) a dispute resolution procedure for effort independently and to decide ‘‘on recommended that consideration of union contractors. Another a project-by-project basis’’ where use of project labor agreements should begin recommended that project labor a project labor agreement will ‘‘advance early in the acquisition process. Early agreements include a targeted hiring the Federal Government’s interest in consideration will help ensure that provision. Yet another commenter
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recommended that the proposed Further, specific elements such as Summary of comments. Many language requiring project labor targeted hiring and outreach policies are respondents submitted comments agreements to ‘‘fully conform to all not addressed in the E.O. These matters, regarding the timing of a project labor statutes, regulations, and Executive as appropriate, may be addressed in the agreement’s execution. (In the notice of orders’’ be changed to say that project project labor agreement, in the context proposed rulemaking, GSA, DoD, and labor agreements shall ensure that items of a particular project. As noted, NASA expressly sought input from the such as existing targeting policies, language has been added to the final public on this issue.) The comments contract compliance requirements, rule that allows agencies to include any focused on three options: (i) require outreach policies, logistical additional requirements as the agency submission of project labor agreement requirements for contractors, and other deems necessary to satisfy its needs. with offer, (ii) require submission of project administration elements would b. Comments regarding the project labor agreement from apparent be addressed. Finally, one commenter Government’s role in establishing the awardee, or (iii) require project labor suggested seeking amendments to the terms of a project labor agreement. agreement before construction begins. American Recovery and Reinvestment Several respondents stated that the final Proponents of requiring submission of Act of 2009 (ARRA) and changing the rule should allow an agency to negotiate an executed project labor agreement (or existing FAR clause 52.222–9, a project labor agreement, either directly at least a binding letter of Apprentices and Trainees, to provide a or through an agent, before the understanding) with bids stated that this model project labor agreement for solicitation is issued. Other respondents timing best ensures compliance with the ARRA-funded projects. expressed the opposite view—i.e., that requirement for project labor agreements Response: With respect to the general the Government should not participate (i.e., the contracting officer has concern raised regarding the in the negotiations of a project labor documented proof before he or she participation of nonunion contractors, agreement—since the terms of the begins evaluating offers) as well as GSA, DoD, and NASA note that E.O. project labor agreement essentially better planning and more accurate 13502 expressly states that all project address the relationship between the pricing in offers, because the offerors labor agreements must allow all contractor and the unions. will be able to accurately predict their contractors and subcontractors to Response: Experiences of entities that labor costs. They noted that early compete for contracts and subcontracts have successfully used project labor negotiation and execution of the project without regard to whether they are agreements suggest that, in some cases, labor agreement can best ensure that otherwise parties to collective an agency may be able to more labor issues will not become a bargaining agreements and this effectively achieve economy and distraction or lead to unanticipated requirement is repeated in the final rule. efficiency in procurement by specifying problems at the beginning of the project. Any contractor may compete for—and some or all of the terms and conditions Opponents raised concerns that win—a Federal contract requiring a of the project labor agreement in the requiring every offeror to negotiate a project labor agreement, whether or not solicitation. Their experiences also project labor agreement would impose a the contractor’s employees are suggest that, if the agency specifies significant burden on offerors and could represented by a labor union. The same some or all of the terms and conditions cause significant delay in contract principle of open competition would of the project labor agreement in the awards. protect subcontractors as well. GSA, solicitation, contractors not familiar The pros and cons offered for DoD, and NASA will work with the with project labor agreements may be requiring submission of the project labor Office of Management and Budget better able to compete. For this reason, agreement from only the apparent (OMB), the Middle Class Task Force, the GSA, DoD, and NASA have amended awardee were essentially the opposite Small Business Administration (as the final rule to clarify that, as from those offered for requiring many of these concerns were posed by appropriate to advance the economy submission with offers. Those who small businesses), and others to assist and efficiency in procurement, an favored post-award submission felt this with the development of appropriate agency may specify the terms and timing posed the smallest likelihood of training on these issues. With respect to conditions of the project labor pre-award delay and gave the contractor the impact of a project labor agreement agreement in the solicitation and require the greatest amount of time to negotiate on particular contractors and the successful offeror to become a party the best project labor agreement subcontractors, GSA, DoD, and NASA to a project labor agreement containing possible. Critics cautioned that post- have amended the final rule to permit these terms and conditions as a award execution of project labor agencies to fashion requirements as condition of receiving a contract award. agreements potentially undercuts key appropriate to meet their procurement Consistent with the FAR and purposes of the agreement, such as needs. As explained in greater detail in applicable law, an agency may seek the addressing potential labor differences the response to the next set of comments views of, confer with, and exchange before they occur and receiving offers on the Government’s role, GSA, DoD, information with prospective bidders with more accurate pricing. Several and NASA have also clarified that an and union representatives as part of the respondents were particularly agency may specify the terms and agency’s effort to identify appropriate concerned that the language of the conditions of the project labor terms and conditions of a project labor proposed rule, which would require the agreement, as appropriate to advance agreement for a particular construction offeror to ‘‘negotiate in good faith,’’ does economy and efficiency in procurement. project and facilitate agreement on those not assure that a project labor agreement As for the other recommendations terms and conditions. However, agency will be reached, despite the Government described above, GSA, DoD, and NASA actions must not prescribe how having concluded that it should be do not agree that the rule should be Government contractors and utilized. modified to address them. Section 4 of subcontractors handle their labor Response: GSA, DoD, and NASA the E.O. specifies the minimum relations beyond performance of the believe that the Government’s requirements for project labor specific Government contract project procurement interests are best served by agreements. The final rule reflects these involved. allowing agencies broad discretion in considerations. Additional references, 3. Timing for submission of project formulating the process and timing for such as to ARRA, are not required. labor agreement the submission of a project labor
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agreement. Accordingly, under the final engaged in the construction and agencies as they believe appropriate. rule, agencies may choose from among subcontractors who are not part of the However, the rule reiterates that, as three options. Submission may be construction project. Another provided in E.O. 13502, contractors and required: (1) when offers are due; (2) commenter stated that the proposed rule subcontractors must be permitted to prior to award (by the apparent failed to exclude designers, site compete for contracts and subcontracts successful offeror); or (3) after award. engineers, surveyors and other without regard to whether they are Providing these three options allows engineering related personnel from its otherwise parties to collective agencies with project labor agreement requirements. The commenter stated bargaining agreements. experience to continue with the model that the quality assurance/quality d. Comments regarding the use of they have found most effective; it also control functions performed by such project labor agreements for initiatives allows other agencies to craft an personnel would give rise to certain other than large-scale Federal approach unique to each project, and, as conflicts of interest if they were subject construction projects. A number of experience is gained, follow best to a project labor agreement. respondents recommended that the demonstrated practices. If an agency Two respondents stated that any E.O.’s policy for encouraging the use of decides that permitting execution of the determination relating to the use of a project labor agreements be broadened. project labor agreement after award is project labor agreement under Federal Some respondents recommended that the best approach, the contractor will be contracts for projects on Indian the threshold for applicable projects be required to submit an executed copy of reservations should take cognizance of lower than $25 million. They stated that the agreement to the contracting officer. tribal sovereignty and self- it is common for project labor This is a change from the proposed rule, determination as contemplated by Pub. agreements to be used on construction which only required the contractor to L. 93–638 and various Executive orders. projects under $25 million and that the ‘‘bargain in good faith.’’ In the view of Both respondents stated that the total cost of a project is less significant GSA, DoD, and NASA, the language of determination whether to use a project than the factors referenced in the E.O. the proposed rule could result in a labor agreement should be vested in the in determining whether a project labor situation where the Government affected tribe rather than the Federal agreement serves the Government’s concluded that execution of a project agency. One commenter stated that a interest. Some suggested this be labor agreement was in its best interest, tribal-specific project labor agreement accomplished by lowering the threshold but has no recourse should the project has been developed and that it is to $5 million. Others recommended that labor agreement never be executed as generally referred to as a ‘‘Tribal Labor the definitions of ‘‘large-scale long as the contractor bargained in good Agreement.’’ This commenter construction project’’ and ‘‘Project labor faith. recommended that the final rule reflect agreement,’’ be revised to include a 4. Other issues the unique aspects of Federal projects construction program comprised of a. Comments regarding retroactive located on Indian reservations. multiple projects when calculating the imposition of project labor agreements Response: GSA, DoD, and NASA have $25 million threshold. A few on contracts already awarded. One clarified in the final rule that project recommended no threshold and commenter recommended that the rule labor agreements cover subcontractors suggested that the rule be revised to be clarified to prohibit agencies from engaged in construction. This change require that agencies analyze all pursuing a project labor agreement after makes clear that employers who do not construction projects, regardless of a contract has been awarded. The perform construction work need not value or form, to determine whether the commenter’s concern relates to a sign the project labor agreement. use of a project labor agreement results scenario where the contracting agency With respect to the handling of in a more efficient procurement. Finally, has not previously informed parties that engineering-related personnel, GSA, a number of respondents addressed use a project labor agreement was being DoD, and NASA note that no other of project labor agreements in considered. trades or crafts are referenced in either connection with Federally-assisted Response: GSA, DoD, and NASA the E.O. or the proposed rule and projects. Most who discussed the issue agree with this concern. Any such believe these concerns are best favored the use of project labor action, without any prior indication that addressed by the agency or the parties agreements for construction contracts a project labor agreement was on a project-by-project basis. funded by Federal grants. A few contemplated, could disrupt the Regarding issues related to tribal self- respondents opposed the use of project project’s schedule and impact contract determination, GSA, DoD, and NASA labor agreements on such projects, and price. FAR 1.108(d) requires that any concluded that no change is required to two questioned the legality of such use. application of a new procedure to the FAR rule. Each of the affected Response: Modifying the coverage of existing contracts must be bilaterally funding agencies may develop internal the final rule to address expanded negotiated and involve adequate guidance, as necessary, to accommodate consideration of project labor consideration. Consistent with section its unique authorities. agreements is outside the scope of this 11 of the E.O., the final rule will apply c. Guidance to employers that have no rulemaking. This rulemaking is to solicitations for large-scale relationship to labor organizations. One intended to support the implementation construction projects issued on or after commenter stated that the proposed rule of the policy set forth in section 1(b) of the effective date of this rule. failed to provide guidance to employers E.O. 13502, which is expressly directed b. Comments addressing the that have no relationship with any labor at Federal acquisitions involving large- applicability of project labor agreements organization. The commenter stated that scale construction projects. Under to certain contractors. Some the terms and conditions of employment section 5 of the E.O., agencies are not respondents questioned the application common in union-represented precluded from using project labor of a project labor agreement to particular workforces differ from the terms and agreements on projects not covered by activities related to, or occupations conditions of employment common for the order. GSA, DoD, and NASA note involved with, construction projects. individuals not represented by unions. that this final rule does not limit One commenter stated that the proposed Response: This issue is outside the agencies’ exercise of their authorities to rule was ‘‘overly comprehensive’’ by not scope of this FAR case. Such general require project labor agreements in distinguishing between contractors guidance may be provided by individual appropriate circumstances and to the
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extent permitted by law. Finally, with will advance the interest of the Federal Some respondents took issue with the respect to recommendations addressing Government in achieving economy and statement in the Federal Register construction projects funded by Federal efficiency. Consistent with the express preamble to the proposed rule that this grants, GSA, DoD, and NASA note that terms of the E.O., including section 5, rule is not expected to have a significant such transactions are outside their which states that the order ‘‘does not impact on a substantial number of small policy jurisdiction and the purview of require an executive agency to use a entities. These respondents pointed out the FAR. project labor agreement on any that many small entities perform work construction project,’’ the final rule as subcontractors on projects whose D. Significant rule. preserves the flexibility agencies need to total cost exceeds $25 million. One This is a significant regulatory action evaluate whether a project labor respondent cited comments of and, therefore, was subject to review agreement is appropriate for a given individual prime contractors that have under section 6(b) of Executive Order construction project. Simply put, the performed contracts in the $25 million 12866, Regulatory Planning and Review, use of project labor agreements by plus range as to the percentage of dated September 30, 1993. This rule is Federal agencies is voluntary. As awards to small business not a major rule under 5 U.S.C. 804. explained in the preamble to the notice subcontractors, the majority of whom GSA, DoD, and NASA received a of proposed rulemaking, GSA, DoD, and are non-union. This respondent cited a number of comments that made NASA estimate about 30 project labor particular example in which a prime arguments in favor of declaring this rule agreements will be formed per year contractor subcontracted to small as major. A summary of these comments (Federal Register at 74 FR 33955, July businesses more than 50 percent of the and GSA, DoD, and NASA’ response is 14, 2009). Based on this estimate, GSA, dollar value of prime construction below. DoD, and NASA expect that any contracts that exceed $25 million. The Comment: One respondent stated that increased construction costs associated respondent stated that these numbers the proposed rule improperly declares with the use of project labor agreements are typical of many other association that this rule is not a major rule under under the rule will be less than the $100 members. 5 U.S.C. 804, and thereby violates the million threshold for a major rule. Many respondents stated that the rule Congressional Review Act codified Furthermore, this is not rulemaking will have a substantial harmful therein. (such as is promulgated, for example, by economic impact. Specifically, they 5 U.S.C. 804 defines a major rule as stated that: the Environmental Protection Agency) • including any rule likely to result in— that will impose mandatory standards The impact on all subcontracts on (A) An annual effect on the economy that may result in higher costs on such projects, no matter how small, will of $100,000,000 or more; entities, without any reimbursement. be harmful due primarily to (B) A major increase in costs or prices These are acquisition regulations. discrimination against non-union for consumers, individual industries, Applying for a Government contract is subcontractors and increased costs. Federal, State, or local government • The project labor agreement will a voluntary act. In addition, as further agencies, or geographic regions; or increase the costs of the small non- explained in the Regulatory Flexibilty (C) A significant adverse effect on union subcontractor by at least 25 Analysis section below, bids on a competition, employment, investment, percent or more. productivity, innovation, or on the project for which a project labor • The project labor agreement ability of the United States-based agreement is required may include requirement will impact ‘‘even small enterprises to compete with foreign- anticipated costs associated with a employers who will likely have no labor based enterprises in domestic export contractor’s compliance with project relations staff who can navigate a markets. Respondents made the labor agreement requirements. These project labor agreement.’’ following arguments: costs would be included in the price of • Small businesses will be put out of • Project labor agreements will have the contract awarded to the successful business because they will not be able significant adverse effect on bidder. to afford the costs associated with this competition. E. Regulatory Flexibility Analysis. rule. • Project labor agreements will create • Use of project labor agreements will major increases in construction costs for Many respondents commented on the make it more difficult for small non- Federal agencies. Regulatory Flexibility Act and the union businesses to compete. • Project labor agreements may have perceived impact on small businesses. Response: Consistent with the an annual impact on the economy of 1. Violation of the Regulatory requirements of the Regulatory $100,000,000 or more. Flexibility Act. Flexibility Act, GSA, DoD, and NASA • Without the benefit of a cost/benefit Comments: Many respondents stated are committed to performing analyses analysis, it is difficult to determine if that the failure to perform an Initial and identifying alternatives, whenever the NPRM would satisfy the criteria of Regulatory Flexibility Analysis violated feasible, to mitigate the impact of a major rule under paragraph A or the Regulatory Flexibility Act. One acquisition rules on small businesses calculate if increases are major under respondent further objected that the and regularly work with the Small paragraph B. findings lack the level of quality that Business Administration to this end. As Response: OMB determines whether a would permit their dissemination and explained below, GSA, DoD, and NASA rule is a major rule. OMB has not use as the basis of the policy that GSA, believe that amendments made to the determined this rule to be a major rule. DoD, and NASA are proposing to set final rule allow agencies to fashion The purpose of the E.O. is to further through this rulemaking, as required by requirements as appropriate to meet economy and efficiency in Federal section 515 of the Data Quality Act their procurement needs and ameliorate procurement—in particular large-scale (Pub. L. 106–554). One respondent concerns about the impact of a project construction contracts. Specifically, criticized GSA, DoD, and NASA for labor agreement on particular agencies are encouraged to consider failing to certify that the rule would not contractors and subcontractors, requiring the use of a project labor have a substantial adverse economic including small businesses. agreement in large-scale construction impact on a significant number of small GSA, DoD, and NASA do not certify projects, if use of such an agreement entities. that a rule will not have a significant
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economic impact on a substantial GSA, DoD, and NASA have updated Comment: One respondent number of small entities until after averages, to include FY 2009 recommended that the final rule receipt and analysis of public comments information: The 2 year average is a establish a threshold below which any on a rule. total of 246 contracts per year, with 14 qualified bidder can participate, GSA, DoD, and NASA did not of the prime contractors being small regardless of the bidder’s agreement, or perform an Initial Regulatory Flexibility businesses. However, GSA, DoD, and lack of agreement, to a project labor Analysis on this rule, because GSA, NASA continue to maintain the estimate agreement. Many respondents requested DoD, and NASA did not expect that the made in the proposed rule of about 30 that the proposed rule should be rule would have a significant economic project labor agreements per year (that rescinded so that a regulatory flexibility impact on a substantial number of small would now be 12.2 percent of all large- analysis can be performed. entities for the reasons stated in the scale construction contracts). Response: The project labor Federal Register preamble to the The impact on non-union small agreement requires all construction proposed rule, namely that the rule is businesses is not likely to be as much subcontractors to follow the same rules; discretionary in nature and the its as feared by many of the respondents. it would defeat the purpose of the application is tied to large scale GSA, DoD, and NASA reviewed a major project labor agreement to exempt construction projects over $25 million project by the Massachusetts Water subcontractors below a given threshold. that are likely to be performed by large Resource Authority, which used a It is not necessary to rescind the businesses. It is only the prime project labor agreement. Of the 257 proposed rule, because GSA, DoD, and contractor that negotiates the project subcontractors, 102 were reportedly NASA do not believe this final rule will labor agreement and submits the project open shop subcontractors (nearly 40 have a significant economic impact on labor agreement to the Government. percent). a substantial number of small entities The Data Quality Act is more The rule clearly states that all within the meaning of the Regulatory commonly applied to significant contractors and subcontractors must be Flexibility Act based on the responses information disseminated by allowed to compete for contracts and provided above. Government agencies such as statistical subcontracts without regard to whether 3. Request for separate submission information (e.g., National Weather they are otherwise parties to collective from small entities. Service or Bureau of Labor Statistics); bargaining agreements. It is not up to Comments: One respondent was information about health, safety, and the small business subcontractor to under the impression that the Federal environmental risks that they collect negotiate a project labor agreement; it Register preamble to the proposed rule from regulated entities; or findings of only needs to sign on to the project required filing of separate comments scientific research or technical labor agreement negotiated by the prime with regard to Regulatory Flexibility information that Government agencies contractors. When a prime contractor Analysis. The respondent stated that create or obtain in the course of makes an offer to perform work on a there is no basis for the requirement to developing regulations, often involving fixed-price construction contract, the file such comments separately and scientific, engineering, and economic contractor includes amounts to cover objected to this process. analysis (for example, an analysis of the the costs it expects to incur, including Another respondent raised the same risk to health to support a change to anticipated costs of complying with issues as the other respondent, and also clean air or water standards). Although project labor agreement requirements, stated that GSA, DoD, and NASA are neither the law nor the OMB Guidance plus profit in its offered price. obliged to consider comments from all are limited to ‘‘important’’ information, Subcontractors also include their entities, not just small entities; and the OMB guidance states that the more anticipated costs in their offered price. assumed that the reference to section 5 important the information, the higher The anticipated costs, therefore, would U.S.C. 610 must be in error. the quality standards to which it should be included in the payment by the Response: The statement that GSA, be held. The OMB Guidance also states Government of the prime contract fixed DoD, and NASA will consider that agencies should apply the price. comments from small entities on guidelines in a ‘‘common-sense and GSA, DoD, and NASA cannot affected subparts in accordance with 5 workable’’ manner. In this case, the determine in the abstract what the U.S.C. 610 was not intended to affect information provided was not the basis effects of a particular project labor the response by entities with regard to for the proposed rule (which is based on agreement will be on all the affected the impact of this particular rule on the E.O.), but was only used in the parties. However, GSA, DoD, and NASA small entities. 5 U.S.C. 610 addresses decision of whether to prepare and have amended the final rule to permit the periodic review of existing rules. submit an Initial Regulatory Flexibility agencies to include requirements as the The intent of the Federal Register Analysis. agency deems necessary to satisfy its statement was to gather separate As stated in the preamble to the procurement needs. GSA, DoD, and information from small entities with proposed rule, according to the Federal NASA have also clarified that an agency regard to the impact on small businesses Procurement Data System, in FY 2008 may specify the terms and conditions of of any existing regulations in parts 2, 17, 300 large-scale construction contracts, the project labor agreement, as 22, 36, and 52—i.e., not the current totaling $31,685,574,596 were awarded. appropriate to advance economy and proposed rule. This request was Of these, 17 were made to small efficiency. These flexibilities, which are supposed to be separate from, and in businesses, totaling $591,269,508 consistent with the discretion addition to, the request for comments on (average of $34,780,558 per contract). anticipated in the E.O. ensure that the regulatory flexibility impact of the The small business size standard for agencies will have the opportunity to proposed rule. general building and heavy construction bring their relevant experiences to bear contractors is $33.5 million. Most prime on circumstances particular to a project F. Regulatory Flexibility Act contractors for such projects are large and take appropriate steps to ameliorate The Department of Defense, the businesses, but the majority of the impact on contractors and General Services Administration, and subcontractors under these large-scale subcontractors, including small the National Aeronautics and Space contracts will be small businesses. Since businesses. Administration certify that this final the publication of the proposed rule, 2. Suggested remedies. rule will not have a significant
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economic impact on a substantial Comments on the proposed project labor agreement by all bidders number of small entities within the information collection requirement: with the offer. meaning of the Regulatory Flexibility One respondent stated that the data is List of Subjects in 48 CFR Parts 2, 7, 17, Act, 5 U.S.C. 601, et seq. The rule largely arbitrary and capricious and 22, and 52 clearly states that all contractors and should not be relied upon for any subcontractors must be allowed to presumed target for expected use of Government procurement. compete for contracts and subcontracts project labor agreements. The Dated: April 2, 2010. respondent expressed the following without regard to whether they are Al Matera, concerns: otherwise parties to collective Director, Acquisition Policy Division. bargaining agreements. It is not up to 1. The estimate may be used by the the small business subcontractor to Government or outside organizations to ■ Therefore, DoD, GSA, and NASA negotiate a project labor agreement; it establish benchmarks or unsupportable amend 48 CFR parts 2, 7, 17, 22, and 52 only needs to sign on to the project goals for the use of project labor as set forth below: ■ labor agreement negotiated by the prime agreements. 1. The authority citation for 48 CFR contractor. Also, as explained in the 2. The estimate appears to be parts 2, 7, 17, 22, and 52 continues to Regulatory Flexibility Analysis section, unrealistically low, not based on valid read as follows: above, when a prime contractor makes assumptions and methodology. Authority: 40 U.S.C. 121(c); 10 U.S.C. an offer to perform work on a fixed- However, the respondent chapter 137; and 42 U.S.C. 2473(c). price construction contract, the acknowledges that the collection of the contractor includes amounts to cover project labor agreements is necessary to PART 2—DEFINITIONS OF WORDS the costs it expects to incur, including determine whether the contractor has AND TERMS achieved the required project labor anticipated costs of complying with 2.101 [Amended] project labor agreement requirements, agreement as stated in the draft ■ 2. Amend section 2.101 in paragraph plus profit in its offered price. solicitation provisions. Another respondent questioned the (b)(2) in the third sentence of the Subcontractors also include their estimate that only 10 percent of definition ‘‘Construction’’ by removing anticipated costs in their offered price. contracts that meet or exceed the $25M the words ‘‘personal property’’ and The anticipated costs, therefore, would threshold will be determined to be adding ‘‘personal property (except that be included in the payment by the appropriate for a project labor for use in subpart 22.5, see the Government of the prime contract fixed agreement. According to the respondent, definition at 22.502)’’ in its place. price. every contract exceeding $25M might in GSA, DoD, and NASA cannot fact be covered. PART 7—ACQUISITION PLANNING determine in the abstract what the Response: The initial estimates for a effects of a particular project labor ■ 3. Amend section 7.103 by new information collection requirement redesignating paragraph (v) as paragraph agreement will be on all the affected are of necessity just that—estimates. parties, but have sought to structure the (w), and adding a new paragraph (v) to They are based on the best information read as follows: rule to maximize an agency’s ability to available, but must rely on the use its discretion to identify when using recommendations of Government 7.103 Agency-head responsibilities. project labor agreements promotes experts. These numbers are never used * * * * * economy and efficiency. Such to establish benchmarks or goals. (v) Encouraging agency planners to circumstances should typically benefit More specifically, with regard to the consider the use of a project labor both the Government and contractors, number of hours per response, not every agreement (see subpart 22.5). such as by providing mechanisms for burden is an information collection * * * * * labor-management cooperation on requirement. The time associated with matters of mutual interest and concern, negotiating a project labor agreement is PART 17—SPECIAL CONTRACTING including productivity, quality of work, a direct result of the E.O., but it is not METHODS safety, and health, and setting forth an information collection requirement. effective, prompt, and mutually binding The only information collection ■ 4. Amend section 17.603 by adding procedures for resolving labor disputes requirement imposed by this rule is the paragraph (c) to read as follows: arising during the project labor requirement to provide a copy of the 17.603 Limitations. agreement. project labor agreement to the * * * * * G. Paperwork Reduction Act contracting officer. The Federal Register preamble to the proposed rule (c) For use of project labor The Paperwork Reduction Act (Pub. specifically stated that the estimated agreements, see subpart 22.5. L. 104–13) applies because the final rule response time of one hour covered only PART 22—APPLICATION OF LABOR contains information collection the time that it would take to submit the requirements. Accordingly, the LAWS TO GOVERNMENT information to the Government. ACQUISITIONS Regulatory Secretariat received the With regard to the number of preapproval for a new information respondents, we expect that better ■ 5. Amend section 22.101–1 by collection, OMB Control No. 9000–0175, information will become available revising paragraph (b) to read as follows: concerning use of project labor through the information that OMB is agreements for Federal construction collecting from the agencies on the use 22.101–1 General. projects, to the Office of Management of project labor agreements. * * * * * and Budget under 44 U.S.C. Chapter 35, Therefore, GSA, DoD, and NASA have (b)(1) Agencies shall remain impartial et seq. Public comments concerning this changed the estimated burden hours concerning any dispute between labor request were invited through a associated with this information and contractor management and not subsequent Federal Register notice that collection requirement, to account for undertake the conciliation, mediation, was published in the Federal Register at the addition of the new option allowing or arbitration of a labor dispute. To the 75 FR 13765, March 23, 2010. agencies to require submission of the extent practicable, agencies should
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ensure that the parties to the dispute use on the project agree, for that project, to (6) Include any additional all available methods for resolving the negotiate or become a party to a project requirements as the agency deems dispute, including the services of the labor agreement with one or more labor necessary to satisfy its needs. National Labor Relations Board, Federal organizations if the agency decides that (c) Terms and conditions. As Mediation and Conciliation Service, the the use of project labor agreements appropriate to advance economy and National Mediation Board and other will— efficiency in the procurement, an appropriate Federal, State, local, or (1) Advance the Federal Government’s agency may specify the terms and private agencies. interest in achieving economy and conditions of the project labor (2) For use of project labor efficiency in Federal procurement, agreement in the solicitation and require agreements, see subpart 22.5. producing labor-management stability, the successful offeror to become a party * * * * * and ensuring compliance with laws and to a project labor agreement containing ■ 6. Add subpart 22.5, consisting of regulations governing safety and health, these terms and conditions as a sections 22.501 through 22.505, to read equal employment opportunity, labor condition of receiving a contract award. as follows: and employment standards, and other An agency may seek the views of, confer matters; and with, and exchange information with Subpart 22.5—Use of Project Labor (2) Be consistent with law. prospective bidders and union Agreements for Federal Construction (c) Agencies may also consider the representatives as part of the agency’s Projects following factors in deciding whether effort to identify appropriate terms and the use of a project labor agreement is Sec. conditions of a project labor agreement appropriate for the construction project: for a particular construction project and 22.501 Scope of subpart. (1) The project will require multiple facilitate agreement on those terms and 22.502 Definitions. construction contractors and/or conditions. 22.503 Policy. subcontractors employing workers in 22.504 General requirements for project labor agreements. multiple crafts or trades. 22.505 Solicitation provision and contract 22.505 Solicitation provision and contract (2) There is a shortage of skilled labor clause. clause. in the region in which the construction For acquisition of large-scale project will be sited. construction projects, if the agency (3) Completion of the project will Subpart 22.5—Use of Project Labor decides pursuant to this subpart that a require an extended period of time. Agreements for Federal Construction project labor agreement will be required, (4) Project labor agreements have been Projects the contracting officer shall— used on comparable projects undertaken 22.501 Scope of subpart. by Federal, State, municipal, or private (a) Insert the provision at 52.222–33, This subpart prescribes policies and entities in the geographic area of the Notice of Requirement for Project Labor procedures to implement Executive project. Agreement, in all solicitations Order 13502, February 6, 2009. (5) A project labor agreement will associated with the construction project. promote the agency’s long term program (1) Use the provision with its 22.502 Definitions. interests, such as facilitating the training Alternate I if the agency decides to As used in this subpart— of a skilled workforce to meet the require the submission of a project labor Construction means construction, agency’s future construction needs. agreement from only the apparent rehabilitation, alteration, conversion, (6) Any other factors that the agency successful offeror, prior to contract extension, repair, or improvement of decides are appropriate. award. buildings, highways, or other real (2) Use the provision with its property. 22.504 General requirements for project Alternate II if an agency allows Labor organization means a labor labor agreements. submission of a project labor agreement organization as defined in 29 U.S.C. (a) General. Project labor agreements after contract award. 152(5). established under this subpart shall (b)(1) Insert the clause at 52.222–34, Large-scale construction project fully conform to all statutes, regulations, Project Labor Agreement, in all means a construction project where the and Executive orders. solicitations and contracts associated total cost to the Federal Government is (b) Requirements. The project labor with the construction project. $25 million or more. agreement shall— (2) Use the clause with its Alternate (1) Bind all contractors and Project labor agreement means a pre- I if an agency allows submission of the subcontractors engaged in construction hire collective bargaining agreement project labor agreement after contract on the construction project to comply with one or more labor organizations award. that establishes the terms and with the project labor agreement; conditions of employment for a specific (2) Allow all contractors and PART 52—SOLICITATION PROVISIONS construction project and is an agreement subcontractors to compete for contracts AND CONTRACT CLAUSES described in 29 U.S.C. 158(f). and subcontracts without regard to whether they are otherwise parties to ■ 7. Add sections 52.222–33 and 22.503 Policy. collective bargaining agreements; 52.222–34 to read as follows: (a) Project labor agreements are a tool (3) Contain guarantees against strikes, that agencies may use to promote lockouts, and similar job disruptions; 52.222–33 Notice of Requirement for economy and efficiency in Federal (4) Set forth effective, prompt, and Project Labor Agreement. procurement. Pursuant to Executive mutually binding procedures for As prescribed in 22.505(a)(1), insert Order 13502, agencies are encouraged to resolving labor disputes arising during the following provision: consider requiring the use of project the term of the project labor agreement; NOTICE OF REQUIREMENT FOR labor agreements in connection with (5) Provide other mechanisms for PROJECT LABOR AGREEMENT (May large-scale construction projects. labor-management cooperation on 2010) (b) An agency may, if appropriate, matters of mutual interest and concern, (a) Definitions. ‘‘Labor organization’’ require that every contractor and including productivity, quality of work, and ‘‘project labor agreement,’’ as used subcontractor engaged in construction safety, and health; and in this provision, are defined in the
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clause of this solicitation entitled PROJECT LABOR AGREEMENT (May not change the terms of this contract or Project Labor Agreement. 2010) provide for any price adjustment by the (b) Consistent with applicable law, (a) Definitions. As used in this Government. the offeror shall negotiate a project labor clause— (e) The Contractor shall maintain in a agreement with one or more labor Labor organization means a labor current status throughout the life of the organizations for the term of the organization as defined in 29 U.S.C. contract the project labor agreement resulting construction contract. 152(5). entered into pursuant to this clause. (c) Consistent with applicable law, the Project labor agreement means a pre- (f) Subcontracts. The Contractor shall project labor agreement reached hire collective bargaining agreement require subcontractors engaged in pursuant to this provision shall— with one or more labor organizations construction on the construction project 1) Bind the offeror and all that establishes the terms and to agree to any project labor agreement subcontractors engaged in construction conditions of employment for a specific negotiated by the prime contractor on the construction project to comply construction project and is an agreement pursuant to this clause, and shall with the project labor agreement; described in 29 U.S.C. 158(f). include the substance of paragraphs (d) (2) Allow the offeror and all (b) The Contractor shall maintain in a through (f) of this clause in all subcontractors to compete for contracts current status throughout the life of the subcontracts with subcontractors and subcontracts without regard to contract the project labor agreement engaged in construction on the whether they are otherwise parties to entered into prior to the award of this construction project. collective bargaining agreements; contract in accordance with solicitation [FR Doc. 2010–8118 Filed 4–12–10; 8:45 am] (3) Contain guarantees against strikes, provision 52.222–33, Notice of BILLING CODE 6820–EP–S lockouts, and similar job disruptions; Requirement for Project Labor (4) Set forth effective, prompt, and Agreement. mutually binding procedures for (c) Subcontracts. The Contractor shall DEPARTMENT OF DEFENSE resolving labor disputes arising during include the substance of this clause, the term of the project labor agreement; including this paragraph (c), in all GENERAL SERVICES (5) Provide other mechanisms for subcontracts with subcontractors ADMINISTRATION labor-management cooperation on engaged in construction on the matters of mutual interest and concern, construction project. NATIONAL AERONAUTICS AND including productivity, quality of work, (End of Clause) SPACE ADMINISTRATION safety, and health; and Alternate I (May 2010). As prescribed (6) Fully conform to all statutes, in 22.505(b)(2), substitute the following 48 CFR Chapter 1 regulations, Executive orders, and paragraphs (b) through (f) for paragraphs agency requirements. (b) and (c) of the basic clause: [Docket FAR 2010–0077, Sequence 3] (d) Any project labor agreement (b) Consistent with applicable law, reached pursuant to this provision does the Contractor shall negotiate a project Federal Acquisition Regulation; not change the terms of this contract or labor agreement with one or more labor Federal Acquisition Circular 2005–41; provide for any price adjustment by the organizations for the term of this Small Entity Compliance Guide Government. construction contract. The Contractor AGENCIES: Department of Defense (DoD), (e) The offeror shall submit to the shall submit an executed copy of the General Services Administration (GSA), Contracting Officer a copy of the project project labor agreement to the and National Aeronautics and Space labor agreement with its offer. Contracting Officer. Administration (NASA). (End of Provision) (c) Consistent with applicable law, the Alternate I (May 2010). As prescribed project labor agreement reached ACTION: Small Entity Compliance Guide. in 22.505(a)(1), substitute the following pursuant to this clause shall— SUMMARY: This document is issued (1) Bind the Contractor and all paragraphs (b) and (e) for paragraphs (b) under the joint authority of the subcontractors engaged in construction and (e) of the basic clause. Secretary of Defense, the Administrator (b) The apparent successful offeror on the construction project to comply of General Services and the shall negotiate a project labor agreement with the project labor agreement; Administrator of the National with one or more labor organizations for (2) Allow the Contractor and all Aeronautics and Space Administration. the term of the resulting construction subcontractors to compete for contracts This Small Entity Compliance Guide has contract. and subcontracts without regard to been prepared in accordance with (e) The apparent successful offeror whether they are otherwise parties to section 212 of the Small Business shall submit to the Contracting Officer collective bargaining agreements; Regulatory Enforcement Fairness Act of a copy of the project labor agreement (3) Contain guarantees against strikes, 1996. It consists of the summary of the prior to contract award. lockouts, and similar job disruptions; rule appearing in Federal Acquisition Alternate II (May 2010). As prescribed (4) Set forth effective, prompt, and Circular (FAC) 2005–41 which amends in 22.505(a)(2), substitute the following mutually binding procedures for the Federal Acquisition Regulation paragraph (b) in lieu of paragraphs (b) resolving labor disputes arising during (FAR). Interested parties may obtain through (e) of the basic clause: the project labor agreement; (b) Consistent with applicable law, if (5) Provide other mechanisms for further information regarding this rule awarded the contract, the offeror shall labor-management cooperation on by referring to FAC 2005–41 which negotiate a project labor agreement with matters of mutual interest and concern, precedes this document. These one or more labor organizations for the including productivity, quality of work, documents are also available via the term of the resulting construction safety, and health; and Internet at http://www.regulations.gov. contract. (6) Fully conform to all statutes, FOR FURTHER INFORMATION CONTACT: The regulations, Executive orders, and analyst whose name appears in the table 52.222–34 Project Labor Agreement. agency requirements. below. Please cite FAC 2005–41 and the As prescribed in 22.505(b)(1), insert (d) Any project labor agreement specific FAR case number. For the following clause: reached pursuant to this provision does information pertaining to status or
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publication schedules, contact the FAR Secretariat at (202) 501–4755.
RULE LISTED IN FAC 2005–41
Subject FAR case Analyst
Use of Project Labor Agreements for Federal Construction Projects ...... 2009–005 Woodson.
SUPPLEMENTARY INFORMATION: A E.O. encourages the use of project labor decide, on a case-by-case basis, whether summary for the FAR rule follows. For agreements for Federal construction the use of a project labor agreement is the actual revisions and/or amendments projects where the total cost to the likely to promote economy and made by this FAR case, refer to FAR Government is $25 million or more in efficiency in the performance of a Case 2009–005. order to promote economy and specific construction project, and FAC 2005–41 amends the FAR as efficiency in Federal procurement. The multiple strategies for timing the specified below: rule provides that an agency may, if Federal Government’s receipt of project appropriate, require that every labor agreements. Use of Project Labor Agreements for contractor and subcontractor engaged in Dated: April 2, 2010. Federal Construction Projects (FAR construction on a construction project Case 2009–005) agree, for that project, to negotiate or Al Matera, This final rule amends the FAR to become a party to a project labor Director, Acquisition Policy Division. implement Executive Order (E.O.) agreement with one or more labor [FR Doc. 2010–8119 Filed 4–12–10; 8:45 am] 13502, Use of Project Labor Agreements organizations. The rule identifies factors BILLING CODE 6820–EP–S for Federal Construction Projects. The that agencies may consider to help them
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Reader Aids Federal Register Vol. 75, No. 70 Tuesday, April 13, 2010
CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING APRIL
Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. 613...... 18726 Presidential Documents 3 CFR 615...... 18726 Executive orders and proclamations 741–6000 Proclamations: 619...... 18726 The United States Government Manual 741–6000 8485...... 18747 620...... 18726 8487...... 17025 Other Services 918...... 17037 8488...... 17837 1261...... 17037 Electronic and on-line services (voice) 741–6020 8489...... 17839 Proposed Rules: Privacy Act Compilation 741–6064 8490...... 17841 701...... 17083 Public Laws Update Service (numbers, dates, etc.) 741–6043 8491...... 17843 708a...... 17083 TTY for the deaf-and-hard-of-hearing 741–6086 8492...... 17845 708b...... 17083 8493...... 17847 1203...... 17622 8494...... 18749 ELECTRONIC RESEARCH 1705...... 17622 Administrative Orders: World Wide Web Memorandums: 14 CFR Full text of the daily Federal Register, CFR and other publications Memorandum of April 25...... 18399 is located at: http://www.gpoaccess.gov/nara/index.html 6, 2010 ...... 18045 27...... 17041 Federal Register information and research tools, including Public 5 CFR 29...... 17041 Inspection List, indexes, and links to GPO Access are located at: 39 ...... 16646, 16648, 16651, Proposed Rules: http://www.archives.gov/federallregister 16655, 16657, 16660, 16662, 532...... 17316 16664, 17295 E-mail 550...... 18133 67...... 17047 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 7 CFR 71 ...... 16329, 16330, 16331, an open e-mail service that provides subscribers with a digital 16333, 16335, 16336, 17851, form of the Federal Register Table of Contents. The digital form 1...... 17555 17852, 18047, 18402, 18403 of the Federal Register Table of Contents includes HTML and 3...... 17555 73...... 17561 PDF links to the full text of each document. 91...... 17281 91...... 17041 205...... 17555 To join or leave, go to http://listserv.access.gpo.gov and select 121...... 17041 226...... 16325 125...... 17041 Online mailing list archives, FEDREGTOC-L, Join or leave the list 274...... 18377 (or change settings); then follow the instructions. 135...... 17041 319...... 17289 234...... 17050 735...... 17555 PENS (Public Law Electronic Notification Service) is an e-mail Proposed Rules: service that notifies subscribers of recently enacted laws. 800...... 17555 21...... 18134 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 900...... 17555 23...... 16676 and select Join or leave the list (or change settings); then follow 916...... 17027 25...... 16676 the instructions. 917...... 17027 27...... 16676 925...... 17031 29...... 16676 FEDREGTOC-L and PENS are mailing lists only. We cannot 929...... 18394 respond to specific inquiries. 39 ...... 16361, 16683, 16685, 944...... 17031 16689, 16696, 17084, 17086, Reference questions. Send questions and comments about the 948...... 17034 17630, 17632, 17879, 17882, Federal Register system to: [email protected] 1170...... 17555 17884, 17887, 17889, 18446, 1245...... 18396 The Federal Register staff cannot interpret specific documents or 18774 1435...... 17555 regulations. 71 ...... 17322, 17637, 17891, Proposed Rules: 17892 Reminders. Effective January 1, 2009, the Reminders, including 916...... 17072 Rules Going Into Effect and Comments Due Next Week, no longer 917...... 17072 15 CFR appear in the Reader Aids section of the Federal Register. This 956...... 18428 740...... 17052 information can be found online at http://www.regulations.gov. 1245...... 18430 748...... 17052 CFR Checklist. Effective January 1, 2009, the CFR Checklist no 9 CFR 750...... 17052 longer appears in the Federal Register. This information can be 762...... 17052 found online at http://bookstore.gpo.gov/. 206...... 16641 902...... 18262 10 CFR 922...... 17055 FEDERAL REGISTER PAGES AND DATE, APRIL 140...... 16645 16 CFR 16325–16640...... 1 431...... 17036 Proposed Rules: 16641–17024...... 2 Proposed Rules: 312...... 17089 17025–17280...... 5 51...... 16360 430...... 16958, 17075 17 CFR 17281–17554...... 6 431 ...... 17078, 17079, 17080 190...... 17297 17555–17846...... 7 232...... 17853 17847–18046...... 8 12 CFR 18047–18376...... 9 4...... 17849 18 CFR 18377–18746...... 12 205...... 16580 40...... 16914 18747–19180...... 13 611...... 18726 284...... 16337
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20 CFR 29 CFR 39 CFR 2...... 19168 618...... 16988 2203...... 18403 111...... 17861 7...... 19168 2204...... 18403 17...... 19168 21 CFR 40 CFR 22...... 19168 Ch. I ...... 16353 30 CFR 9...... 16670 52...... 19168 204...... 18030 10...... 16345 18...... 17512 50...... 17004 206...... 18035 118...... 18751 74...... 17512 51...... 17004, 17254 225...... 18035 524...... 16346 75...... 17512 52 ...... 16671, 17307, 17863, 234...... 18034 814...... 16347 936...... 18048 17865, 17868, 18061, 18068, 1002...... 16351 18757 235...... 18030, 18034 1003...... 16351 32 CFR 70...... 17004 252...... 18030, 18035 71...... 17004 Proposed Rules: 1004...... 16351 199...... 18051 93...... 17254 223...... 18041 1005...... 16351 2004...... 17305 1010...... 16351 180 ...... 17564, 17566, 17571, 252...... 18041 Proposed Rules: 1020...... 16351 17573, 17579 108...... 18138 272...... 17309 1030...... 16351 1701...... 16698 49 CFR 1040...... 16351 721...... 16670 1050...... 16351 Proposed Rules: 23...... 16357 33 CFR 350...... 17208 Proposed Rules: 52 ...... 16387, 16388, 16706, 117...... 17561, 18055 385...... 17208 165...... 16363 17894, 18142, 18143, 18782 147...... 18404 395...... 17208 814...... 16365 98 ...... 17331, 18455, 18576, 165 ...... 18055, 18056, 18058, 396...... 17208 882...... 17093 18608, 18652 18755 571 ...... 17590, 17604, 17605 890...... 17093 272...... 17332 167...... 17562 372...... 17333 Proposed Rules: 24 CFR Proposed Rules: 721...... 16706 172...... 17111 100 ...... 16700, 17099, 17103 173...... 17111 570...... 17303 761...... 17645 150...... 16370 176...... 17111 44 CFR 26 CFR 165 ...... 16370, 16374, 16703, 383...... 16391 17106, 17329, 18449, 18451, 64...... 18408 384...... 16391 1...... 17854 18776, 18778 65 ...... 18070, 18072, 18073, 390...... 16391 301...... 17854 18076, 18079, 18082, 18084, 391...... 16391 602...... 17854 34 CFR 18086, 18088, 18090 392...... 16391 27 CFR Ch. II...... 16668, 18407 67...... 18091 1244...... 16712 17...... 16666 36 CFR 45 CFR 19...... 16666 50 CFR Proposed Rules: 89...... 18760 20...... 16666 286...... 17313 17 ...... 17062, 17466, 18107, 22...... 16666 1191...... 18781 18782 24...... 16666 1193...... 18781 46 CFR 32...... 18413 1194...... 18781 25...... 16666 393...... 18095 36...... 16636 26...... 16666 1206...... 17638 92...... 18764 27...... 16666 47 CFR 300...... 18110 37 CFR 28...... 16666 36...... 17872 622...... 18427 31...... 16666 Proposed Rules: 54...... 17584, 17872 648 ...... 17618, 18113, 18262, 40...... 16666 380...... 16377 73...... 17874 18356 44...... 16666 74...... 17055 665...... 17070 46...... 16666 38 CFR 78...... 17055 679...... 16359, 17315 70...... 16666 1...... 17857 Proposed Rules: Proposed Rules: 59...... 17859 27...... 17349 17 ...... 16404, 17352, 17363, 28 CFR Proposed Rules: 36...... 17109 17667, 18960 20...... 18751 17...... 17641 223...... 16713 Proposed Rules: 51...... 17644 48 CFR 224...... 16713 540...... 17324 59...... 17641 Ch. I...... 19168, 19179 648...... 16716
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