Vol. 77 Thursday, No. 36 February 23, 2012

Pages 10649–10938

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 77, No. 36

Thursday, February 23, 2012

Agency for Healthcare Research and Quality Department of Transportation NOTICES See Pipeline and Hazardous Materials Safety Agency Information Collection Activities; Proposals, Administration Submissions, and Approvals, 10746–10748 Requests for Scientific Information Submissions: Education Department Mechanical Prophylaxis of Venous Thromboembolism, NOTICES 10748–10749 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 10727 Agriculture Department Applications for New Awards: See Forest Service Fulbright–Hays Group Projects Abroad Program, etc., 10727–10732 Alcohol and Tobacco Tax and Trade Bureau NOTICES Employee Benefits Security Administration Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 10805–10806 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Antitrust Division Affordable Care Act Internal Claims and Appeals and External Review Procedures for Non-grandfathered NOTICES Plans, 10781–10782 Proposed Final Judgments and Competitive Impact Statements: Energy Department United States . SG Interests I, Ltd. et al., 10775–10781 See Federal Energy Regulatory Commission NOTICES Arts and Humanities, National Foundation Applications: See National Foundation on the Arts and the Humanities Cameron LNG, LLC; Long-Term Authorization to Export Domestically Produced Liquefied Natural Gas, etc., Bureau of Consumer Financial Protection 10732–10736 NOTICES Meetings: Establishment of Consumer Advisory Board and President’s Council of Advisors on Science and Solicitation of Nominations, 10725–10727 Technology, 10736–10737

Centers for Disease Control and Prevention Environmental Protection Agency NOTICES NOTICES Agency Information Collection Activities; Proposals, Requests For Nominations: Submissions, and Approvals, 10749–10750 Local Government Advisory Committee, 10742–10743

Children and Families Administration Executive Office of the President NOTICES See Presidential Documents Agency Information Collection Activities; Proposals, Submissions, and Approvals: Federal Aviation Administration Assets for Indepndence Program Evaluation, 10752 RULES Performance Measurement On-Line Tool, 10751–10752 Modifications of Class E Airspace: Douglas, AZ, 10649–10650 PROPOSED RULES Civil Rights Commission Airworthiness Directives: NOTICES Airbus Airplanes, 10693–10695 Meetings: NOTICES Maine Advisory Committee, 10719 Withdrawals of Task Assignments: Aviation Rulemaking Advisory Committee, 10797 Coast Guard PROPOSED RULES Federal Deposit Insurance Corporation Safety Zones: NOTICES KULLUK, Outer Continental Shelf Mobile Offshore Agency Information Collection Activities; Proposals, Drilling Unit, Beaufort Sea, AK, 10711–10714 Submissions, and Approvals, 10743 NOBLE DISCOVERER, Outer Continental Shelf Drillship, Chukchi and Beaufort Seas, AK, 10707–10711 Federal Election Commission NOTICES Commerce Department Meetings; Sunshine Act, 10743 See Industry and Security Bureau See International Trade Administration Federal Energy Regulatory Commission See National Oceanic and Atmospheric Administration RULES See Patent and Trademark Office Annual Update of Filing Fees, 10650–10651

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NOTICES Guidance for Industry; Availability: Combined Filings, 10739 Records Access Authority under Federal Food, Drug, and Preliminary Permit Drawings: Cosmetic Act, 10753–10754 FFP Project 91, LLC, Riverbank Hydro No. 23, LLC, International Conference on Harmonisation; Q3C LockPlus Hydro Friends Fund III, 10739 Impurities, Residual Solvents: LockPlus Hydro Friends Fund VIII, FFP Project 92, LLC, Revision of Permitted Daily Exposure for Solvent Riverbank Hydro No. 24, LLC, 10740 Cumene, 10754–10755 LockPlus Hydro Friends Fund XII, BOST2, LLC, Requests for Nominations for Voting Members: Riverbank Hydro No. 21, LLC, FFP Project 96, LLC, Risk Communication Advisory Committee, 10755–10756 10741 LockPlus Hydro Friends Fund XVIII, Upper Foreign Assets Control Office Hydroelectric, LLC, FFP Project 95, LLC, Riverbank NOTICES Hydro No. 25, LLC, 10740 Designations Pursuant to Executive Order 13224: Riverbank Hydro No. 22, LLC, FFP Project 93, LLC, Blocking Property and Prohibiting Transactions with 10740 Persons Who Commit, Threaten to Commit, or SV Hydro, LLC, Coffeeville, LLC, FFP Project 99, LLC, Support Terrorism, 10806–10807 10739–10740 Designations Pursuant to Executive Order 13553, 10807– Records Governing Off-the-Record Communications, 10741– 10808 10742 Designations Pursuant to Executive Order 13572: Blocking Property of Certain Persons with Respect to Federal Maritime Commission Human Rights Abuses in Syria, 10808 NOTICES Agreements, 10743–10744 Forest Service NOTICES Federal Railroad Administration Environmental Impact Statements; Availability, etc.: NOTICES Mountain Pine Beetle Response Project, Black Hills Petitions for Waivers of Compliance, 10798–10799 National Forest, SD, 10717–10718 Revised Guidance for Requesting One-Time Movement Requests For Proposals: Approvals, 10799 2012 Hazardous Fuels Woody Biomass Utilization Grant Program; Correction, 10718–10719 Federal Reserve System NOTICES General Services Administration Formations of, Acquisitions by, and Mergers of Bank RULES Holding Companies, 10744 Acquisition Regulations: Acquisition-Related Thresholds, 10665–10666 Federal Trade Commission Health and Human Services Department NOTICES See Agency for Healthcare Research and Quality Agency Information Collection Activities; Proposals, See Centers for Disease Control and Prevention Submissions, and Approvals, 10744–10746 See Children and Families Administration Fiscal Service See Food and Drug Administration See Health Resources and Services Administration NOTICES See National Institutes of Health Surety Companies Acceptable on Federal Bonds: NOTICES First Sealord Surety, Inc.; Termination, 10806 Meetings: National Committee on Vital and Health Statistics, 10746 Fish and Wildlife Service RULES Health Resources and Services Administration Endangered and Threatened Wildlife and Plants: NOTICES Endangered Status and Designations of Critical Habitat Meetings: for Spikedace and Loach Minnow, 10810–10932 Advisory Commission on Childhood Vaccines, 10756 NOTICES Meetings: Homeland Security Department Trinity Adaptive Management Working Group, 10766– See Coast Guard 10767 See U.S. Customs and Border Protection Food and Drug Administration Housing and Urban Development Department RULES PROPOSED RULES Establishment, Maintenance, and Availability of Records: Federal Housing Administration Risk Management Record Availability Requirements, 10658–10662 Initiatives: Guidance for Industry; Availability: Revised Seller Concessions, 10695–10707 Questions and Answers on Establishment, Maintenance NOTICES of Records by Persons Who Manufacture, Process, Agency Information Collection Activities; Proposals, etc., or Import Food (Edition 5), 10662–10663 Submissions, and Approvals: NOTICES Application for Resident Opportunities and Self Agency Information Collection Activities; Proposals, Sufficiency Program, 10763–10764 Submissions, and Approvals: Manufactured Housing Dispute Resolution, 10763 General Licensing Provisions; Section 351() Biosimilar Multifamily Financial Management Template, 10765– Applications; Correction, 10752–10753 10766

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Procedures for Appealing Section 8 Rent Adjustments, National Institutes of Health 10764–10765 NOTICES Funding Awards for Fiscal Year 2011: Agency Information Collection Activities; Proposals, McKinney–Vento HMIS Technical Assistance, 10766 Submissions, and Approvals: Application for collaboration with NIH Center for Indian Affairs Bureau Translational Therapeutics (NCTT), 10758 NOTICES NEXT Generation Health Study, 10758–10759 Rate Adjustments for Indian Irrigation Projects, 10767– Opinions and Perspectives about Current Blood Donation 10771 Policy for Men Who Have Sex with Men, 10756– 10758 Industry and Security Bureau Meetings: NOTICES Chairpersons, Boards of Scientific Counselors for Orders Temporarily Denying Export Privileges, 10719– Institutes and Centers, 10760 10722 Eunice Kennedy Shriver National Institute of Child Health and Human Development, 10759–10760 Interior Department Requests For Information: See Fish and Wildlife Service Chimpanzees in NIH-Supported Research, 10760–10761 See Indian Affairs Bureau See National Park Service National Oceanic and Atmospheric Administration RULES International Trade Administration Fisheries of Exclusive Economic Zone Off Alaska: NOTICES Pacific Cod for American Fisheries Act Catcher/ Anti-circumvention Inquiries; Terminations: Processors Using Trawl Gear in Bering Sea and Drill Pipe from People’s Republic of China, 10722–10723 Aleutian Islands Management Area, 10668–10669 Fisheries of Northeastern United States: International Trade Commission Atlantic Herring Fishery; Sub-Annual Catch Limit NOTICES Harvested for Management Area 2, 10668 Countervailing and Antidumping Duty Orders: Fisheries of the Exclusive Economic Zone Off Alaska; Fresh and Chilled Atlantic Salmon from Norway, 10772– Bering Sea and Aleutian Islands: 10773 Final 2012 and 2013 Harvest Specifications for Five-Year Reviews: Groundfish, 10669–10690 Silicon Metal from China, 10774 NOTICES Stainless Steel Butt-Weld Pipe Fittings from Italy, Calls for Nominations and Meetings: Malaysia, and Philippines, 10773 National Sea Grant Advisory Board, 10723–10724 Permits: Justice Department Endangered Species; File No. 16253, 10724–10725 See Antitrust Division Western Pacific Pelagic Fisheries; American Samoa NOTICES Longline Limited Entry Program, 10724 Lodging of Consent Decrees Under CERCLA, 10774–10775

Labor Department National Park Service See Employee Benefits Security Administration NOTICES National Register of Historic Places: Maritime Administration Pending Nominations and Related Actions, 10771–10772 NOTICES Administrative Waivers of Coastwise Trade Laws: National Science Foundation Vessel ALTERNATE LATITUDE, 10800–10801 NOTICES Vessel FLAMINGO, 10799–10800 Meetings; Sunshine Act, 10783–10784 Vessel LAURENE, 10800 Vessel SELAH, 10802 Neighborhood Reinvestment Corporation Vessel SILVER MOON, 10802–10803 NOTICES Vessel XIUMA, 10801 Meetings; Sunshine Act, 10784 Vessel ZIA, 10801–10802 Environmental Assessments; Availability, etc.: Nuclear Regulatory Commission America’s Marine Highway Program, 10803–10804 NOTICES Applications for Facility Operating LIcense Amendments; National Archives and Records Administration Withdrawals: NOTICES Calvert Cliffs Nuclear Power Plant, LLC, 10784 Meetings: Meetings: Solicit Comments in Response to Presidential ACRS Subcommittee on Reliability and PRA, 10786 Memorandum, Managing Government Records, 10782 ACRS Subcommittee on U.S. Advanced Pressurized Power Reactor, 10784–10785 National Foundation on the Arts and the Humanities Advisory Committee on Reactor Safeguards, 10785–10786 NOTICES Agency Information Collection Activities; Proposals, Patent and Trademark Office Submissions, and Approvals, 10782–10783 NOTICES Meetings: Agency Information Collection Activities; Proposals, National Council on Humanities, 10783 Submissions, and Approvals, 10725

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Pension Benefit Guaranty Corporation See Maritime Administration NOTICES See Pipeline and Hazardous Materials Safety Agency Information Collection Activities; Proposals, Administration Submissions, and Approvals: Annual Financial and Actuarial Information Reporting, Treasury Department 10786–10787 See Alcohol and Tobacco Tax and Trade Bureau See Fiscal Service Pipeline and Hazardous Materials Safety Administration See Foreign Assets Control Office RULES PROPOSED RULES Pipeline Safety: Acquisition Regulations: Post Accident Drug and Alcohol Testing, 10666–10667 Internet Payment Platform, 10714–10716 NOTICES Presidential Documents Agency Information Collection Activities; Proposals, ADMINISTRATIVE ORDERS Submissions, and Approvals, 10804–10805 Government Agencies and Employees: Trade and investment; maximizing effectiveness of U.S. Customs and Border Protection Federal programs and functions (Memorandum of NOTICES February 17, 2012), 10933–10937 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Public Debt Bureau Declaration of Person Who Performed Repairs, 10762 See Fiscal Service Screening Requirements for Carriers, 10761–10762

Securities and Exchange Commission Veterans Affairs Department NOTICES RULES Self-Regulatory Organizations; Proposed Rule Changes: Due Date of Initial Application Requirements for State Chicago Board Options Exchange, Inc., 10790–10791 Home Construction Grants, 10663–10665 Chicago Stock Exchange, Inc., 10792–10794 NASDAQ OMX PHLX LLC, 10787–10788 NASDAQ Stock Market LLC, 10794–10797 Separate Parts In This Issue New York Stock Exchange LLC, 10788–10790 NYSE Amex LLC, 10791–10792 Part II Interior Department, Fish and Wildlife Service, 10810– Social Security Administration 10932 RULES Collection and Consideration of Evidence of Disability, Part III 10651–10657 Presidential Documents, 10933–10937 Protecting Public and Employees in Hearing Processes, 10657–10658

State Department Reader Aids NOTICES Consult the Reader Aids section at the end of this page for Culturally Significant Objects Imported for Exhibition phone numbers, online resources, finding aids, reminders, Determinations: and notice of recently enacted public laws. Loans from Tsolozidis Collection, 10797 To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http:// Transportation Department listserv.access.gpo.gov and select Online mailing list See Federal Aviation Administration archives, FEDREGTOC-, Join or leave the list (or change See Federal Railroad Administration 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 Administrative Orders: Memorandums: Memorandum of February 17, 2012 ...... 10935 14 CFR 71...... 10649 Proposed Rules: 39 (2 documents) ...... 10691, 10693 18 CFR 381...... 10650 20 CFR 404 (2 documents) ...... 10651, 10657 416 (2 documents) ...... 10651, 10657 21 CFR 1 (2 documents) ...... 10658, 10662 24 CFR Proposed Rules: Ch II ...... 10695 33 CFR Proposed Rules: 147 (2 documents) ...... 10707, 10711 38 CFR 59...... 10663 48 CFR 519...... 10665 552...... 10665 Proposed Rules: 10...... 10714 49 CFR 199...... 10666 50 CFR 17...... 10810 648...... 10668 679 (2 documents) ...... 10668, 10669

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Rules and Regulations Federal Register Vol. 77, No. 36

Thursday, February 23, 2012

This section of the FEDERAL REGISTER invited to participate in this rulemaking entities under the criteria of the contains regulatory documents having general effort by submitting written comments Regulatory Flexibility Act. applicability and legal effect, most of which on the proposal to the FAA. No The FAA’s authority to issue rules are keyed to and codified in the Code of comments were received. Subsequent to regarding aviation safety is found in Federal Regulations, which is published under Title 49 of the U.S. Code. Subtitle 1, 50 titles pursuant to 44 U.S.C. 1510. publication, the FAA found a typographical error in a bearing of the Section 106 discusses the authority of The Code of Federal Regulations is sold by 1,200 foot airspace description and the FAA Administrator. Subtitle VII, the Superintendent of Documents. Prices of makes the correction in the rule. Aviation Programs, describes in more new books are listed in the first FEDERAL Class E airspace designations are detail the scope of the agency’s REGISTER issue of each week. published in paragraph 6002 and 6005, authority. This rulemaking is respectively, of FAA Order 7400.9V promulgated under the authority described in Subtitle VII, Part A, DEPARTMENT OF TRANSPORTATION dated August 9, 2011, and effective September 15, 2011, which is Subpart I, Section 40103. Under that section, the FAA is charged with Federal Aviation Administration incorporated by reference in 14 CFR 71.1. The Class E airspace designations prescribing regulations to assign the use of airspace necessary to ensure the 14 CFR Part 71 listed in this document will be published subsequently in that Order. safety of aircraft and the efficient use of [Docket No. FAA–2011–1313; Airspace airspace. This regulation is within the Docket No. 11–AWP–17] The Rule scope of that authority as it modifies controlled airspace at Bisbee Douglas Modification of Class E Airspace; This action amends Title 14 Code of International Airport, Douglas, AZ. Douglas, AZ Federal Regulations (14 CFR) Part 71 by modifying Class E surface airspace, and List of Subjects in 14 CFR Part 71 AGENCY: Federal Aviation Class E airspace extending upward from Administration (FAA), DOT. Airspace, Incorporation by reference, 700 feet above the surface at Douglas, Navigation (air). ACTION: Final rule. AZ. Additional controlled airspace is Adoption of the Amendment SUMMARY: This action modifies Class E necessary to accommodate aircraft using airspace at Bisbee Douglas International VHF Omni-Directional Radio Range/ In consideration of the foregoing, the Airport, Douglas, AZ. Decommissioning Distance Measuring Equipment, Global Federal Aviation Administration of the Cochise VHF Omni-Directional Positioning System standard instrument amends 14 CFR Part 71 as follows: Radio Range Tactical Air Navigational approach procedures at Bisbee Douglas Aid (VORTAC) has made this action International Airport, Douglas, AZ. PART 71—DESIGNATION OF CLASS A, necessary for the safety and Decommissioning of the Cochise , C, AND E AIRSPACE AREAS; AIR management of aircraft operations at the VORTAC has made this action TRAFFIC SERVICE ROUTES; AND airport. This action also adjusts the necessary and enhances the safety and REPORTING POINTS geographic coordinates of the airport, management of aircraft operations at the ■ 1. The authority citation for 14 CFR and corrects a typographical error in the airport. The geographic coordinates of Part 71 continues to read as follows: legal description for the Class E 700 foot the airport is also updated to coincide airspace. This improves the safety and with the FAA’s aeronautical database. In Authority: 49 U.S.C. 106(), 40103, 40113, management of Instrument Flight Rules the 700 foot/1,200 foot airspace 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– (IFR) operations at the airport. description, the 20-mile radius bearing 1963 Comp., p. 389. ° ° DATES: Effective date, 0901 UTC, May 076 is corrected to 075 bearing of the § 71.1 [Amended] airport. 31, 2012. The Director of the Federal ■ 2. The incorporation by reference in Register approves this incorporation by The FAA has determined this 14 CFR Part 71.1 of the Federal Aviation reference action under 1 CFR part 51, regulation only involves an established Administration Order 7400.9V, Airspace subject to the annual revision of FAA body of technical regulations for which Designations and Reporting Points, Order 7400.9 and publication of frequent and routine amendments are dated August 9, 2011, and effective conforming amendments. necessary to keep them operationally September 15, 2011 is amended as FOR FURTHER INFORMATION CONTACT: current. Therefore, this regulation: (1) Is follows: Eldon Taylor, Federal Aviation not a ‘‘significant regulatory action’’ Administration, Operations Support under Executive Order 12866; (2) is not Paragraph 6002 Class E airspace designated Group, Western Service Center, 1601 a ‘‘significant rule’’ under DOT as surface areas. Lind Avenue SW., Renton, WA 98057; Regulatory Policies and Procedures (44 * * * * * telephone (425) 203–4537. FR 11034; February 26, 1979); and (3) AWP AZ E2 Douglas, AZ [Modified] does not warrant preparation of a SUPPLEMENTARY INFORMATION: Bisbee Douglas International Airport, AZ regulatory evaluation as the anticipated (Lat. 31°28′08″ ., long. 109°36′14″ W.) History impact is so minimal. Since this is a Within a 4.3-mile radius of Bisbee Douglas On December 16, 2011, the FAA routine matter that will only affect air International Airport, and within 1.8 miles published in the Federal Register a traffic procedures and air navigation, it each side of the Bisbee Douglas International notice of proposed rulemaking to amend is certified this rule, when promulgated, Airport 332° bearing extending from the 4.3- controlled airspace at Douglas, AZ (76 will not have a significant economic mile radius to 7 miles northwest of the FR 78180). Interested parties were impact on a substantial number of small airport. This Class E airspace area is effective

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during the specific dates and times DEPARTMENT OF ENERGY eLibrary (formerly FERRIS). The full established in advance by a Notice to text of this document is available on Airmen. The effective date and time will Federal Energy Regulatory eLibrary in PDF and Microsoft Word thereafter be continuously published in the Commission format for viewing, printing, and/or Airport/Facility Directory. downloading. To access this document 18 CFR Part 381 Paragraph 6005 Class E airspace areas in eLibrary, type the docket number extending upward from 700 feet or more [Docket No. RM12–5–000] excluding the last three digits of this above the surface of the earth. document in the docket number field * * * * * Annual Update of Filing Fees and follow other directions on the search page. AWP AZ E5 Douglas, AZ [Modified] AGENCY: Federal Energy Regulatory Commission, DOE. User assistance is available for Bisbee Douglas International Airport, AZ ACTION: Final rule; annual update of eLibrary and other aspects of FERC’s (Lat. 31°28′08″ N., long. 109°36′14″ W.) Commission filing fees. Web site during normal business hours. That airspace extending upward from 700 For assistance, contact FERC Online feet above the surface within 3.9 miles SUMMARY: In accordance with its Support at northeast and 8.3 miles southwest of the regulations, the Commission issues this [email protected] or toll Bisbee Douglas International Airport 333° update of its filing fees. This notice free at (866) 208–3676, or for TTY, bearing extending from the airport to 16.1 provides the yearly update using data in contact (202) 502–8659. miles northwest. That airspace extending the Commission’s Management, upward from 1,200 feet above the surface Administrative, and Payroll System to Annual Update of Filing Fees within a 7.8-mile radius of Bisbee Douglas calculate the new fees. The purpose of The Federal Energy Regulatory International Airport, and within a 20-mile updating is to adjust the fees on the Commission (Commission) is issuing radius of Bisbee Douglas International basis of the Commission’s costs for Airport extending clockwise from the 288° Fiscal Year 2011. this notice to update filing fees that the Commission assesses for specific bearing to the 075° bearing of the airport, and DATES: Effective Date: March 26, 2012. services and benefits provided to within 4.3 miles east and 7.4 miles west of FOR FURTHER INFORMATION CONTACT: the Bisbee Douglas International Airport 347° identifiable beneficiaries. Pursuant to Raymond D. Johnson Jr., Office of the 18 CFR 381.104, the Commission is bearing extending from the airport to 34.5 Executive Director, Federal Energy miles north. establishing updated fees on the basis of Regulatory Commission, 888 First Street the Commission’s Fiscal Year 2011 Issued in Seattle, Washington, on February NE., Room 42–66, Washington, DC costs. The adjusted fees announced in 13, 2012. 20426, 202–502–8402. this notice are effective March 26, 2012. John Warner, SUPPLEMENTARY INFORMATION: The Commission has determined, with Manager, Operations Support Group, Western Document Availability: In addition to the concurrence of the Administrator of publishing the full text of this document Service Center. the Office of Information and Regulatory in the Federal Register, the Commission [FR Doc. 2012–4156 Filed 2–22–12; 8:45 am] Affairs of the Office of Management and provides all interested persons an BILLING CODE 4910–13–P Budget, that this final rule is not a major opportunity to view and/or print the rule within the meaning of section 251 contents of this document via the of Subtitle E of Small Business Internet through FERC’s Home Page Regulatory Enforcement Fairness Act, (http://www.ferc.gov) and in FERC’s Public Reference Room during normal 5 U.S.C. 804(2). The Commission is business hours (8:30 a.m. to 5 p.m. submitting this final rule to both houses Eastern time) at 888 First Street NE., of the United States Congress and to the Room 2A, Washington, DC 20426. Comptroller General of the United From FERC’s Web site on the Internet, States. this information is available in the The new fee schedule is as follows:

Fees Applicable to the Natural Gas Policy Act

1. Petitions for rate approval pursuant to 18 CFR 284.123(b)(2). (18 CFR 381.403) ...... $12,370

Fees Applicable to General Activities

1. Petition for issuance of a declaratory order (except under Part I of the Federal Power Act). (18 CFR 381.302(a)) ...... 24,860 2. Review of a Department of Energy remedial order: Amount in controversy $0–9,999. (18 CFR 381.303(b)) ...... 100 $10,000–29,999. (18 CFR 381.303(b)) ...... 600 $30,000 or more. (18 CFR 381.303(a)) ...... 36,290 3. Review of a Department of Energy denial of adjustment: Amount in controversy $0–9,999. (18 CFR 381.304(b)) ...... 100 $10,000–29,999. (18 CFR 381.304(b)) ...... 600 $30,000 or more. (18 CFR 381.304(a)) ...... 19,030 4. Written legal interpretations by the Office of General Counsel. (18 CFR 381.305(a)) ...... 7,130

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Fees Applicable to Natural Gas Pipelines

1. Pipeline certificate applications pursuant to 18 CFR 284.224. (18 CFR 381.207(b)) ...... *1,000

Fees Applicable to Cogenerators and Small Power Producers

1. Certification of qualifying status as a small power production facility. (18 CFR 381.505(a)) ...... 21,380 2. Certification of qualifying status as a cogeneration facility. (18 CFR 381.505(a)) ...... 24,200 * This fee has not been changed.

List of Subjects in 18 CFR Part 381 SOCIAL SECURITY ADMINISTRATION (NPRM) we published in the Federal Register on April 12, 2011 (76 FR Electric power plants, Electric 20 CFR Parts 404 and 416 20282). The preamble to the NPRM utilities, Natural gas, Reporting and [Docket No. SSA 2010–0044] discussed the changes from the current recordkeeping requirements. rules and our reasons for proposing Dated: February 16, 2012. RIN 0960–AG89 those changes.1 Because we are Charles . Schneider, adopting the proposed rules as How We Collect and Consider published, we are not repeating that Executive Director. Evidence of Disability information here. In consideration of the foregoing, the AGENCY: Social Security Administration Public Comments on the NPRM Commission amends Part 381, Chapter I, (SSA). In the NPRM, we provided the public Title 18, Code of Federal Regulations, as ACTION: Final rule. a 60-day comment period, which ended set forth below. on June 13, 2011. We received 59 public SUMMARY: We are modifying the PART 381—FEES comments. The comments came from a requirement to recontact your medical member of the public, members of the source(s) first when we need to resolve disability advocacy community, and ■ 1. The authority citation for Part 381 an inconsistency or insufficiency in the several national groups of Social continues to read as follows: evidence he or she provided. Depending Security claimants’ representatives. Authority: 15 U.S.C. 717–717w; 16 U.S.C. on the nature of the inconsistency or We provide below summaries of the 791–828c, 2601–2645; 31 U.S.C. 9701; 42 insufficiency, there may be other, more significant comments that were relevant U.S.C. 7101–7352; 49 U.S.C. 60502; 49 App. appropriate sources from whom we to this rulemaking and our responses to U.S.C. 1–85. could obtain the information we need. those comments. We have tried to By giving adjudicators more flexibility present the commenters’ concerns and § 381.302 [Amended] in determining how best to obtain this suggestions accurately and completely. 2. In § 381.302, paragraph (a) is information, we will be able to make a Comment: All of the commenters amended by removing ‘‘$23,540’’ and determination or decision on disability recommended that we keep our current adding ‘‘$24,860’’ in its place. claims more quickly and efficiently in requirement to recontact a person’s certain situations. Eventually, our need medical source(s) first when we need to § 381.303 [Amended] to recontact your medical source(s) in resolve an inconsistency or many situations will be significantly 3. In § 381.303, paragraph (a) is insufficiency in the evidence he or she reduced as a result of our efforts to provided. Some of these commenters amended by removing ‘‘$34,370’’ and improve the evidence collection process believed that the proposed modification adding ‘‘$36,290’’ in its place. through the increased use of Health of this requirement was inconsistent § 381.304 [Amended] Information Technology (HIT). with sections 223(d)(5)(B) and DATES: These rules are effective March 1614(a)(3)(H) of the Social Security Act 4. In § 381.304, paragraph (a) is 26, 2012. (Act), which require us to make ‘‘every amended by removing ‘‘$18,020’’ and reasonable effort to obtain from the adding ‘‘$19,030’’ in its place. FOR FURTHER INFORMATION CONTACT: Brian Rudick, Office of Regulations, individual’s treating physician (or other § 381.305 [Amended] Social Security Administration, 6401 treating health care provider) all Security Boulevard, Baltimore, MD medical evidence, including diagnostic 5. In § 381.305, paragraph (a) is 21235–6401, (410) 965–7102. For tests, necessary in order to properly amended by removing ‘‘$ 6,750’’ and information on eligibility or filing for make [a] determination, prior to adding ‘‘$7,130’’ in its place. benefits, call our national toll-free evaluating medical evidence obtained from any other source on a consultative § 381.403 [Amended] number, 1–800–772–1213 or TTY 1–800–325–0778, or visit our Internet basis.’’ Other commenters believed that 6. Section 381.403 is amended by site, Social Security Online, at http:// any modification of the current removing ‘‘$11,720’’ and adding www.socialsecurity.gov. requirement would make it less likely ‘‘$12,370’’ in its place. that adjudicators would obtain evidence SUPPLEMENTARY INFORMATION: from a person’s medical source(s), and § 381.505 [Amended] Background more likely that they would try and obtain evidence from a consultative 7. In § 381.505, paragraph (a) is We are making final the proposed amended by removing ‘‘$20,240’’ and examination (CE) instead. These changes to our rules regarding when we commenters speculated that some adding ‘‘$21,380’’ in its place and by will recontact your medical source(s) to removing ‘‘$22,920’’ and adding adjudicators may even purchase CEs to resolve an inconsistency or undermine evidence provided by ‘‘$24,200’’ in its place. insufficiency in the evidence he or she [FR Doc. 2012–4146 Filed 2–22–12; 8:45 am] provided. We proposed these changes in 1 The NPRM is available at: http://www.gpo.gov/ BILLING CODE 6717–01–P a Notice of Proposed Rulemaking fdsys/pkg/FR-2011-04-12/pdf/2011-8388.pdf.

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treating sources and to circumvent our the adjudicator’s initial obligation to evidence received from that source. In rules on how we weigh medical obtain medical evidence. the NPRM, we also gave two examples opinions from these sources.2 These Because these final rules do not alter of situations where we would expect commenters said that treating sources an adjudicator’s obligations under adjudicators to contact the medical are usually the most knowledgeable §§ 404.1512(d) and 416.912(d), they are source first, because the additional about a person’s condition, and consistent with sections 223(d)(5)(B) information needed is directly related to therefore, can provide the best evidence and 1614(a)(3)(H) of the Act. Contrary to that source’s medical opinion.11 In fact, regarding disability. One of these what some of the commenters seemed to we expect that adjudicators will often commenters also said that recontacting assume, when Congress enacted contact a person’s medical source(s) first treating sources is simpler and more sections 223(d)(5)(B) and 1614(a)(3)(H) whenever the additional information effective than purchasing a CE, and of the Act in 1984, it did not intend to sought pertains to findings, treatment, another commenter noted that it is more alter in any way the relative weight that and functional capacity, because the convenient for claimants to see their we place on reports received from treating source may be the best source treating sources than it is for them to treating sources and consultative regarding these issues. attend CEs. examiners or preclude us from obtaining In further response to the Response: We did not adopt the consultative examinations when we find commenters’ concerns, we plan to comments. We disagree with the it necessary to obtain additional conduct training on these final rules and information or resolve conflicting will provide additional guidance on commenters’ concerns for several 6 reasons. First, we disagree that evidence. when adjudicators should recontact a Second, we disagree that these rules person’s medical source(s) first for modification of the requirement to would permit adjudicators to purchase additional information. In addition, we recontact a person’s medical source(s) CEs rather than develop evidence from are currently conducting comprehensive first when we need to resolve an a person’s medical source(s). We have training regarding the development of inconsistency or insufficiency in the regulations that govern the purchase of evidence from a person’s medical evidence he or she provided violates CEs, and those regulations provide, in source(s) and related rules regarding the sections 223(d)(5)(B) and 1614(a)(3)(H) part, that ‘‘Generally, we will not purchase of CEs. These training efforts of the Act or our regulations. As we request a consultative examination until are ongoing and for adjudicators at all explained in the NPRM, the proposed we have made every reasonable effort to levels of the disability determination change ‘‘would not alter our rules in obtain evidence from your own medical process. §§ 404.1512(d) and 416.912(d) that sources.’’ 7 Other CE regulations Comment: Several commenters require us to make every reasonable underscore this point by providing that believed that the proposed modification effort to help you get medical reports ‘‘If your medical sources cannot or will to the recontact requirement will from your medical sources when you not give us sufficient medical evidence sacrifice the best evidence from a give us permission to request the about your impairment, we may ask you person’s medical source(s) for the sake reports. Rather, the proposed change to have one or more physical or mental of efficiency, and will, therefore, result would apply only after we have made examinations.8 Our CE regulations also in less accurate decision making by 3 those reasonable efforts.’’ provide that before purchasing a CE, we adjudicators. As we noted in the NPRM, the rules will consider your ‘‘existing medical Response: We disagree with the in §§ 404.1512(d) and 416.912(d) first reports.’’ 9 It is also important to note commenters. As we pointed out in require us to ‘‘make every reasonable that, subject to certain requirements, response to the comments above, effort’’ to develop ‘‘your complete ‘‘your treating source will be the modifying the recontact requirement medical history for at least the 12 preferred source to do the purchased does not alter how we comply with the months preceding the month in which examination.’’ 10 We believe these provisions of the Act that require us to you file your application unless there is regulations provide sufficient safeguards make ‘‘every reasonable effort’’ to obtain a reason to believe that development of against any potential abuse of the CE medical evidence from the individual’s an earlier period is necessary or unless process. treating physician ‘‘prior to evaluating you say that your disability began less We agree with the commenters who medical evidence obtained from any than 12 months before you filed your stated that the treating source can be a other source on a consultative basis.’’ application.’’ 4 Our regulations define valuable source of evidence about a Therefore, the efficiencies we expect to ‘‘every reasonable effort’’ to include ‘‘an person’s condition. As we explained in achieve by the changes we are making initial request for evidence from your the NPRM, there are times when we in these rules will not come at the medical source’’ and ‘‘one follow-up would still expect adjudicators to expense of those statutory provisions. request’’ at anytime ‘‘between 10 and 20 recontact a person’s medical source As we also noted in response to calendar days after the initial request’’ first; that is, when recontact is the most previous comments, we expect if we did not receive the evidence.5 The effective and efficient way to obtain the adjudicators will often recontact treating recontact requirement applies only information needed to resolve an sources first in some situations because when we have already received inconsistency or insufficiency in the they may be the best sources of evidence from a person’s medical information about a person’s medical source; therefore, the revisions we are 6 S. Rep. No. 98–466, at 26 (1984). condition. Accordingly, we do not making to our rules here do not change 7 Sections 404.1512() and 416.912(f). See also believe the modification to our recontact §§ 404.1517 through 416.1519t and 404.917 through 416.919t for our other rules governing the CE requirement will cause a qualitative 2 Those rules require us to generally give ‘‘more process. change in the medical evidence we weight’’ to the opinions from a treating source and 8 Sections 404.1517 and 416.917. consider or produce less accurate ‘‘controlling weight’’ when the treating source’s 9 Sections 404.1519a(a)(1) and 416.919a(a)(1). disability determinations and decisions. opinions are well-supported and not inconsistent These regulations also state that, in addition to Comment: One commenter noted that with other substantial evidence. See §§ 404.1527(d) ‘‘existing medical reports,’’ we will consider ‘‘the in the preamble to the NPRM, we gave and 416.927(d). disability interview form containing your 3 76 FR 20283 (emphasis added). allegations as well as other pertinent evidence in two examples of when we believed it 4 76 FR 20283. your file’’ before purchasing a CE. 5 See §§ 404.1512(d)(1) and 416.912(d)(1). 10 Sections 404.1519h and 416.919h. 11 76 FR 20283.

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would be ‘‘inefficient and ineffective’’ to opinions under certain circumstances.15 Comment: Several commenters said require recontact with a person’s These commenters also said that the the proposed modification to our medical source. In one example, the proposed modification would diminish recontact requirement is unnecessary person’s medical source did not the role and weight of medical opinion because there is already an exception to specialize in the area of the impairment evidence we receive from treating this requirement in our current alleged and we needed more evidence sources in our determination of regulations that will permit adjudicators about its current severity.12 We disability. to contact someone other than the indicated that we may supplement the Response: We did not propose any person’s medical source first. evidence ‘‘by obtaining a CE with a changes to our regulations on how we Response: We disagree with the specialist (such as a pulmonologist) who weigh treating source opinions in the commenters. Currently, the only exception to the recontact requirement can perform the type of examination we NPRM. In addition, we disagree that is if we know from past experience that need to determine disability under our modification of our recontact the medical source either cannot or will rules.’’ 13 In the other example, the requirement diminishes the importance of medical evidence we receive from not provide the additional information medical records received contain a we need.16 We believe, however, that reference that the claimant has returned treating sources. As we described in response to the comments above, we this exception is not always broad to work; we explained that it may be enough to cover other situations when more appropriate to verify this have rules regarding how we obtain and consider evidence from a person’s contact with a different source first information with the claimant and would be more appropriate. In the obtain related information rather than medical source(s) and rules that govern the purchase and use of CEs. These NPRM, we gave the example of evidence recontact the medical source.14 The received from a medical source commenter suggested that we include rules explain how we apply the provisions of the Act that require us to referencing a claimant’s return to some examples in the regulations, but work.17 Although the medical source make ‘‘every reasonable effort’’ to obtain believed the first example appears to may know something about this issue, medical evidence from the individual’s absolve adjudicators of their obligation the claimant would usually be a more treating physician before we consider appropriate source to contact first, to recontact the medical source if that purchase of a CE. We believe these rules because the claimant would be more source is not a specialist. provide adequate safeguards against likely to have all of the related Response: We did not adopt this possible attempts to undermine the information we need regarding work comment because whether to obtain evidence received from a person’s issues. Under our current rules, additional evidence often depends on medical source(s), and we expect our however, the adjudicator would first specific case facts, and because we adjudicators to follow these rules. have to recontact the medical source for believe it is better to present examples Comment: One commenter expressed additional information, which could in training and other instructions. As we concern about the impact our proposed delay adjudicating the case. Therefore, indicated in response to the comments modification of the recontact we have found that our current above, we plan to conduct training on requirement could have at the hearings requirement, even with its one these final rules and will provide level. The commenter believed that exception, is simply too rigid at a time additional guidance on when giving administrative law judges the when our adjudicators need more adjudicators should recontact a person’s option of contacting someone other than flexibility in developing evidence as medical source(s) first for additional a person’s treating source(s) for quickly and efficiently as possible. information. We disagree with the additional information would make the Comment: One commenter said that commenter that the first example about proceeding adversarial. The commenter the proposed regulation does not require obtaining a CE with a specialist would pointed out that our judges have a duty us to document the case record when absolve adjudicators of any recontact to develop the record fully and fairly we know from past experience that a obligation if a person’s medical source and should seek out the most reliable medical source either cannot or will not is not a specialist. Depending on the evidence which, the commenter said, is provide the additional information we nature of the impairment or the ‘‘presumptively’’ from a treating source. need. This commenter also said it is additional information we need, it may Response: We do not believe that unfair for us to assume that a medical be more appropriate for us to recontact modifying the recontact requirement source will not respond to an inquiry the person’s medical source(s) first will change the non-adversarial format just because that source has been before considering the purchase of a CE of our administrative hearings. We agree uncooperative in the past. with a specialist. Because the situations that our judges have a duty to develop Response: Our current instructions when we need to obtain additional the record fully and fairly. Our rules require adjudicators to document the information are so variable, the type of regarding the development of medical case development summary whenever guidance the commenter asked us to evidence from a person’s medical they do not attempt to recontact a include would be too extensive to put source(s) and the purchase of CEs apply medical source because of past 18 in the regulation. equally to the judges. As we have experience with that source. Although discussed at length in our prior these instructions are sub-regulatory, we Comment: Several commenters said responses to comments, we believe expect our adjudicators to follow them, the proposed modification to the these rules prevent both abuse of the CE and we do not expect to change this recontact requirement eliminates the process and any attempt to undermine procedure when we publish these final ‘‘treating physician rule,’’ which relates the evidence received from treating rules. In response to the commenter’s to our regulations on how we weigh sources at all levels of the disability other concern, we do not believe it is medical opinions from treating sources determination process, including the reasonable to require our adjudicators to and the deference we give these hearings level. attempt to recontact a medical source

12 76 FR 20283. 15 See §§ 404.1527 and 416.927 for our rules on 16 See §§ 404.1512(e)(2) and 416.912(e)(2). 13 76 FR 20283. how we weigh medical opinion evidence, including 17 See 76 FR 20283. 14 76 FR 20283. opinions from treating sources. 18 POMS DI 22505.008B.

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when we know from past experience regardless of the nature of the justification for the proposed change to that this source either cannot or will not inconsistency or insufficiency in the the recontact requirement. Instead, we provide the information we need. Of evidence received, would not serve mentioned HIT simply to point out that course, adjudicators may recontact such these goals. As we explained in the we are engaging in other efforts to a source whenever they have reason to NPRM, ‘‘[d]epending on the nature of improve the medical evidence believe that the source may provide the inconsistency or insufficiency, there collection process. Many of the information for a particular claimant. To may be other, more appropriate sources commenters encouraged such efforts, require recontact in all cases, however, from whom we could obtain the and several of these commenters agreed on the chance that the source might be information we need.’’ 19 Therefore, with our view that increased use of HIT cooperative, would not promote adjudicators need more, not less, will speed our review of medical efficient claims adjudication. discretion than our current recontact evidence, reduce the need to recontact Comment: Several commenters said requirement provides to obtain the treating sources, and reduce the number that rather than modifying our recontact needed information from the most of CEs we might otherwise need to requirement, we should instead find appropriate source. In addition, we are purchase.21 Although HIT is still in the better ways to develop the evidence we confident that we will be able to early phases, we are positioning our need from a person’s medical source(s). identify and correct any problems in the agency to take full advantage of this Some of these commenters exercise of that discretion, should they technology as it becomes more recommended that we send a medical occur, through our quality review widespread in the medical community. source statement form to elicit process. Comment: One commenter thought information targeted to our specific In further response to the the organization of the proposed disability criteria or templates of commenters’ suggestions, it is important changes to our regulations on how we condition-specific questions at the same to note that we are always striving to collect and consider evidence of time we send our general request for find better methods of collecting disability was confusing and would be records to a person’s medical source(s). medical evidence, such as using Health clearer if we reorganized those changes. Other commenters suggested that we Information Technology (HIT). As we Response: We did not adopt the establish even more requirements for explained in the NPRM, using HIT will comment. We received many comments recontacting medical sources. For enable our adjudicators to access a on the NPRM, and it appears that the example, they suggested that we require person’s complete medical records upon commenters generally had a good adjudicators to contact the claimant, a receipt of a claim and reduce the understanding of how we proposed to family member, or the claimant’s number of CEs.20 In addition, our modify the recontact requirement. In representative for assistance in adjudicators already use a variety of addition, as we noted in the NPRM, we recontacting the medical source(s), or methods to obtain the evidence we need combined our rules on how we collect that we require adjudicators to make at to determine disability, including the and consider evidence into one new least three attempts to recontact a use of forms and tailored requests for section (final §§ 404.1520b and medical source(s) before ordering a CE. information from treating sources, 416.1520b), ‘‘so that these rules are One of these commenters also suggested which several commenters suggested. easier to understand and apply.’’ 22 We that we wait 45 days for feedback from Our adjudicators also routinely contact believe the consolidation of our rules the claimant or claimant’s claimants, representatives, and third into one section will achieve these representative after requesting parties designated by claimants for goals. assistance in recontacting a medical assistance in obtaining evidence. We Regulatory Procedures source(s). Several commenters said that will continue to explore ways of claimants’ representatives can assist our improving the medical evidence Executive Order 12866 as adjudicators in getting the information collection process, but there are many Supplemented by Executive Order they need and said we should develop factors, especially cost, which we must 13563 better lines of communication between consider before we can require any We have consulted with the Office of them. Another commenter suggested particular method of obtaining medical Management and Budget (OMB) and that we might be able to improve our evidence. determined that this final rule meets the ability to obtain additional information Moreover, we believe there should be requirements for a significant regulatory from a person’s medical source(s) by a variety of methods available to our action under Executive Order 12866 as finding out whether the claimant is adjudicators, and that they should have supplemented by Executive Order receiving services or support from the flexibility to determine which 13563. Thus, OMB reviewed the final another source that could assist us in method of development would be the rule. getting information from treating most appropriate given the facts in each sources, or by establishing a telephone case. We do not believe there is any one Regulatory Flexibility Act dictation system for medical sources method that is always the most suitable We certify that this final rule will not that may not have clerical support, or by or efficient, and therefore, do not have a significant economic impact on paying treating sources that are believe we should require any of the a substantial number of small entities unwilling to provide additional suggestions made by the commenters in because it only affects individuals. information without some financial all cases. Accordingly, a regulatory flexibility compensation. Comment: Several commenters noted analysis as provided in the Regulatory Response: We did not adopt the our reference to HIT in the NPRM and Flexibility Act, as amended, is not comments. We believe our adjudicators said that using HIT cannot justify required. need more flexibility to conduct case modifying the recontact requirement, development in the most efficient way because HIT is not yet widespread. Paperwork Reduction Act possible. Requiring them to repeatedly Response: We did not intend our This rule does not create any new or contact the medical source(s), or reference to HIT in the NPRM to be a affect any existing collections and, requiring them to wait for feedback or to contact another source for assistance 19 76 FR 20282. 21 76 FR 20283. in recontacting the medical source(s), 20 76 FR 20283. 22 76 FR 20283.

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therefore, does not require Office of (6) * * * See § 404.1527(e)(2)–(3). not contain all the information we need Management Budget approval under the * * * * * to make our determination or decision. Paperwork Reduction Act. (e) Obtaining a consultative We consider evidence to be inconsistent (Catalog of Federal Domestic Assistance examination. We may ask you to attend when it conflicts with other evidence, Program Nos. 96.001, Social Security— one or more consultative examinations contains an internal conflict, is Disability Insurance; 96.002, Social at our expense. * * * ambiguous, or when the medical Security—Retirement Insurance; 96.004, * * * * * evidence does not appear to be based on Social Security—Survivors Insurance; and medically acceptable clinical or ■ 96.006, Supplemental Security Income) 3. Amend § 404.1519a by revising laboratory diagnostic techniques. If the paragraph (a), revising paragraph (b) evidence in your case record is List of Subjects introductory text, adding ‘‘or’’ after the insufficient or inconsistent, we may semi- in paragraph (b)(3), 20 CFR Part 404 need to take additional actions, as we removing paragraph (b)(4), and explain in paragraphs (b) and (c) of this Administrative practice and redesignating paragraph (b)(5) as (b)(4), section. procedure; Blind; Disability benefits; to read as follows: (a) If all of the evidence we receive, Old-age, Survivors, and Disability § 404.1519a When we will purchase a including all medical opinion(s), is Insurance; Reporting and recordkeeping consistent and there is sufficient requirements; Social Security. consultative examination and how we will use it. evidence for us to determine whether 20 CFR Part 416 (a) General. If we cannot get the you are disabled, we will make our determination or decision based on that Administrative practice and information we need from your medical evidence. procedure; Aged, Blind, Disability sources, we may decide to purchase a consultative examination. See (b) If any of the evidence in your case benefits, Public assistance programs; record, including any medical Reporting and recordkeeping § 404.1512 for the procedures we will follow to obtain evidence from your opinion(s), is inconsistent, we will requirements; Supplemental Security weigh the relevant evidence and see Income (SSI). medical sources and § 404.1520b for how we consider evidence. Before whether we can determine whether you Michael . Astrue, purchasing a consultative examination, are disabled based on the evidence we Commissioner of Social Security. we will consider not only existing have. (c) If the evidence is consistent but we medical reports, but also the disability For the reasons set out in the have insufficient evidence to determine interview form containing your preamble, we are amending subpart P of whether you are disabled, or if after allegations as well as other pertinent part 404 and subpart I of part 416 of weighing the evidence we determine we evidence in your file. chapter III of title 20 Code of Federal cannot reach a conclusion about (b) Situations that may require a Regulations as set forth below: whether you are disabled, we will consultative examination. We may determine the best way to resolve the PART 404—FEDERAL OLD-AGE, purchase a consultative examination to inconsistency or insufficiency. The SURVIVORS AND DISABILITY try to resolve an inconsistency in the action(s) we take will depend on the INSURANCE (1950– ) evidence, or when the evidence as a nature of the inconsistency or whole is insufficient to allow us to make insufficiency. We will try to resolve the Subpart P—[Amended] a determination or decision on your inconsistency or insufficiency by taking claim. Some examples of when we ■ 1. The authority citation for subpart P any one or more of the actions listed in might purchase a consultative of part 404 is revised to read as follows: paragraphs (c)(1) through (c)(4) of this examination to secure needed medical section. We might not take all of the Authority: Secs. 202, 205(a)–(b) and (d)– evidence, such as clinical findings, actions listed below. We will consider (h), 216(i), 221(a), (i), and (j), 222(c), 223, laboratory tests, a diagnosis, or 225, and 702(a)(5) of the Social Security Act any additional evidence we receive prognosis, include but are not limited (42 U.S.C. 402, 405(a)–(b) and (d)–(h), 416(i), together with the evidence we already to: 421(a), (i), and (j), 422(c), 423, 425, and have. 902(a)(5)); sec. 211(b), Pub. L. 104–193, 110 * * * * * (1) We may recontact your treating Stat. 2105, 2189; sec. 202, Pub. L. 108–203, ■ 4. Amend § 404.1520 by adding a physician, psychologist, or other 118 Stat. 509 (42 U.S.C. 902 note). sentence to the end of paragraph (a)(3) medical source. We may choose not to ■ 2. Amend § 404.1512 by revising the to read as follows: seek additional evidence or clarification from a medical source if we know from third sentence of paragraph (a) and the § 404.1520 Evaluation of disability in last sentence of paragraph (b)(6), by general. experience that the source either cannot removing paragraph (e), redesignating or will not provide the necessary (a) * * * paragraph (f) as (e) and revising the evidence. If we obtain medical evidence (3) * * * See § 404.1520b. heading and first sentence, and over the telephone, we will send the redesignating paragraph (g) as (f), to * * * * * telephone report to the source for read as follows: ■ 5. Add § 404.1520b to read as follows: review, signature, and return; (2) We may request additional § 404.1512 Evidence. § 404.1520b How we consider evidence. existing records (see § 404.1512); (a) * * * This means that you must After we review all of the evidence (3) We may ask you to undergo a furnish medical and other evidence that relevant to your claim, including consultative examination at our expense we can use to reach conclusions about medical opinions (see § 404.1527), we (see §§ 404.1517 through 404.1519t); or your medical impairment(s) and, if make findings about what the evidence (4) We may ask you or others for more material to the determination of whether shows. In some situations, we may not information. you are disabled, its effect on your be able to make these findings because (d) When there are inconsistencies in ability to work on a sustained basis. the evidence in your case record is the evidence that we cannot resolve or *** insufficient or inconsistent. We consider when, despite efforts to obtain (b) * * * evidence to be insufficient when it does additional evidence, the evidence is

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insufficient to determine whether you ■ 9. Amend § 416.912 by revising the § 416.920 Evaluation of disability in are disabled, we will make a third sentence of paragraph (a) and the general. determination or decision based on the last sentence of paragraph (b)(6), by (a) * * * evidence we have. removing paragraph (e), redesignating (3) * * * See § 416.920b. paragraph (f) as (e) and revising the ■ 6. Amend § 404.1527 as follows: * * * * * ■ a. Revise paragraph (b); heading and first sentence, and ■ 12. Add § 416.920b to read as follows: ■ b. Remove paragraph (c); redesignating paragraph (g) as (f), to ■ c. Redesignate paragraphs (d) through read as follows: § 416.920b How we consider evidence. (f) as (c) through (e); § 416.912 Evidence. After we review all of the evidence ■ d. In newly redesignated paragraph (c) relevant to your claim, including introductory text remove ‘‘(d)(2)’’ and (a) * * * If material to the medical opinions (see § 416.927), we add in its place ‘‘(c)(2)’’; determination whether you are disabled, make findings about what the evidence ■ e. In newly redesignated paragraph medical and other evidence must be shows. In some situations, we may not (c)(2) introductory text remove ‘‘(d)(2)(i) furnished about the effects of your be able to make these findings because and (d)(2)(ii)’’ and add in its place impairment(s) on your ability to work, the evidence in your case record is ‘‘(c)(2)(i) and (c)(2)(ii)’’ and remove or if you are a child, on your insufficient or inconsistent. We consider ‘‘(d)(3) through (d)(6)’’ and add in its functioning, on a sustained basis. * * * evidence to be insufficient when it does place ‘‘(c)(3) through (c)(6)’’; (b) * * * not contain all the information we need ■ f. In newly redesignated paragraph (6) * * * See § 416.927(e)(2)–(3). to make our determination or decision. (d)(3) remove ‘‘(e)(1) and (e)(2)’’ and add * * * * * We consider evidence to be inconsistent in its place ‘‘(d)(1) and (d)(2)’’; when it conflicts with other evidence, ■ g. In newly redesignated paragraph (e) (e) Obtaining a consultative examination. We may ask you to attend contains an internal conflict, is introductory text remove ‘‘(a) through ambiguous, or when the medical (e)’’ and add in its place ‘‘(a) through one or more consultative examinations at our expense. * * * evidence does not appear to be based on (d)’’; medically acceptable clinical or ■ * * * * * h. In newly redesignated paragraph laboratory diagnostic techniques. If the ■ (e)(2)(ii) remove ‘‘(a) through (e)’’ and 10. Amend § 416.919a by revising evidence in your case record is add in its place ‘‘(a) through (d)’’; and paragraph (a), revising paragraph (b) insufficient or inconsistent, we may ■ i. In newly redesignated paragraph introductory text, adding ‘‘or’’ after the need to take additional actions, as we (e)(2)(iii) remove ‘‘(a) through (e)’’ and semi-colon in paragraph (b)(3), explain in paragraphs (b) and (c) of this add in its place ‘‘(a) through (d)’’, to removing paragraph (b)(4), and section. read as follows: redesignating paragraph (b)(5) as (b)(4), (a) If all of the evidence we receive, to read as follows: § 404.1527 Evaluating opinion evidence. including all medical opinion(s), is * * * * * § 416.919a When we will purchase a consistent and there is sufficient (b) How we consider medical consultative examination and how we will evidence for us to determine whether opinions. In determining whether you use it. you are disabled, we will make our are disabled, we will always consider (a) General. If we cannot get the determination or decision based on that the medical opinions in your case information we need from your medical evidence. record together with the rest of the sources, we may decide to purchase a (b) If any of the evidence in your case relevant evidence we receive. See consultative examination. See § 416.912 record, including any medical § 404.1520b. for the procedures we will follow to opinion(s), is inconsistent, we will weigh the relevant evidence and see * * * * * obtain evidence from your medical ■ 7. Amend § 404.1545 by revising the sources and § 416.920b for how we whether we can determine whether you fifth sentence of paragraph (a)(3) to read consider evidence. Before purchasing a are disabled based on the evidence we as follows: consultative examination, we will have. consider not only existing medical (c) If the evidence is consistent but we § 404.1545 Your residual functional reports, but also the disability interview have insufficient evidence to determine capacity. form containing your allegations as well whether you are disabled, or if after (a) * * * as other pertinent evidence in your file. weighing the evidence we determine we (3) * * * (See §§ 404.1512(d) through cannot reach a conclusion about (b) Situations that may require a (e).) * * * whether you are disabled, we will consultative examination. We may determine the best way to resolve the * * * * * purchase a consultative examination to inconsistency or insufficiency. The try to resolve an inconsistency in the PART 416—SUPPLEMENTAL action(s) we take will depend on the evidence or when the evidence as a SECURITY INCOME FOR THE AGED, nature of the inconsistency or whole is insufficient to support a BLIND, AND DISABLED insufficiency. We will try to resolve the determination or decision on your inconsistency or insufficiency by taking claim. Some examples of when we Subpart I—[Amended] any one or more of the actions listed in might purchase a consultative paragraphs (c)(1) through (c)(4) of this ■ 8. The authority citation for subpart I examination to secure needed medical section. We might not take all of the of part 416 continues to read as follows: evidence, such as clinical findings, actions listed below. We will consider laboratory tests, a diagnosis, or Authority: Secs. 221(m), 702(a)(5), 1611, any additional evidence we receive prognosis, include but are not limited 1614, 1619, 1631(a), (c), (d)(1), and (p), and together with the evidence we already 1633 of the Social Security Act (42 U.S.C. to: have. 421(m), 902(a)(5), 1382, 1382c, 1382h, * * * * * 1383(a), (c), (d)(1), and (p), and 1383b); secs. (1) We may recontact your treating 4(c) and 5, 6(c)–(e), 14(a), and 15, Pub. L. 98– ■ 11. Amend § 416.920 by adding a physician, psychologist, or other 460, 98 Stat. 1794, 1801, 1802, and 1808 (42 sentence to the end of paragraph (a)(3) medical source. We may choose not to U.S.C. 421 note, 423 note, and 1382h note). to read as follows: seek additional evidence or clarification

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from a medical source if we know from (3) * * * (See §§ 416.912(d) through Explanation of Changes experience that the source either cannot (e).) * * * We are revising our regulations at or will not provide the necessary * * * * * §§ 404.937 and 416.1437 to further evidence. If we obtain medical evidence [FR Doc. 2012–4177 Filed 2–22–12; 8:45 am] describe when the Hearing Office Chief over the telephone, we will send the BILLING CODE 4191–02–P Administrative Law Judge will find a telephone report to the source for claimant or other individual poses a review, signature, and return; reasonable threat to the safety of our (2) We may request additional SOCIAL SECURITY ADMINISTRATION employees or other participants in the existing records (see § 416.912); 20 CFR Parts 404 and 416 hearing. We are making these changes to (3) We may ask you to undergo a respond to public comments we consultative examination at our expense received. (see §§ 416.917 through 416.919t); or [Docket No. SSA–2011–0008] (4) We may ask you or others for more Public Comments on the Interim Final Rules information. RIN 0960–AH29 (d) When there are inconsistencies in In the interim final rules, we provided the evidence that we cannot resolve or Protecting the Public and Our the public a 60-day comment period, when, despite efforts to obtain Employees in Our Hearing Process which ended on May 13, 2011. We additional evidence, the evidence is received three public comments. Since AGENCY: insufficient to determine whether you Social Security Administration. the comments were long, we have are disabled, we will make a ACTION: Final rule. condensed, summarized, and determination or decision based on the paraphrased them. We summarized the SUMMARY: We are clarifying our evidence we have. commenters’ views and responded to regulations to ensure the safety of the the significant issues raised by the ■ 13. Amend § 416.927 as follows: public and our employees in our commenters that were within the scope ■ a. Revise paragraph (b); hearing process. Due to increasing of this rule. ■ b. Remove paragraph (c); reports of threats to our hearing office ■ c. Redesignate paragraphs (d) through Comment: Two commenters wanted employees, we are taking steps to to make sure that the regulation (f) as (c) through (e); explicitly increase the level of ■ d. In newly redesignated paragraph (c) consistently used the term ‘‘poses a protection we provide to our staff and threat’’ instead of any reference to ‘‘has introductory text remove ‘‘(d)(2)’’ and to the public during the hearing process. add in its place ‘‘(c)(2)’’; made a threat’’ as the grounds for We expect these changes to result in a applying the regulation. ■ e. In newly redesignated paragraph safer work environment for our (c)(2) introductory text remove ‘‘(d)(2)(i) Response: We expanded this section employees, while at the same time to clarify that the Hearing Office Chief and (d)(2)(ii)’’ and add in its place ensuring that our claimants continue to ‘‘(c)(2)(i) and (c)(2)(ii)’’ and remove Administrative Judge will find that an receive a full and fair hearing on their individual poses a threat if the ‘‘(d)(3) through (d)(6)’’ and add in its claims for benefits. place ‘‘(c)(3) through (c)(6)’’; individual either has made a threat and DATES: ■ f. In newly redesignated paragraph These final rules are effective there is reasonable likelihood that the (d)(3) remove ‘‘(e)(1) and (e)(2)’’ and add February 23, 2012. claimant or other individual could act in its place ‘‘(d)(1) and (d)(2)’’; FOR FURTHER INFORMATION CONTACT: Glen on the threat, or if evidence suggests ■ g. In newly redesignated paragraph (e) Colvin, Social Security Administration, that the claimant or other individual introductory text remove ‘‘(a) through 5107 Leesburg Pike, Falls Church, VA poses a threat. (e)’’ and add in its place ‘‘(a) through 22041–3260, 703–605–8444, for Comment: Another commenter agreed (d)’’; information about this final rule. For with the goal of our interim final rules, ■ h. In newly redesignated paragraph information on eligibility or filing for but wanted to make sure that the (e)(2)(ii) remove ‘‘(a) through (e)’’ and benefits, call our national toll-free regulation will not result in add in its place ‘‘(a) through (d)’’; and number, 1–800–772–1213 or TTY discrimination against claimants based ■ i. In newly redesignated paragraph 1–800–325–0778, or visit our Internet on their disabilities, national origin, or (e)(2)(iii) remove ‘‘(a) through (e)’’ and site, Social Security Online, at http:// primary language. add in its place ‘‘(a) through (d)’’, to www.socialsecurity.gov. Response: These regulations are read as follows: designed to protect our employees and SUPPLEMENTARY INFORMATION: the public we serve regardless of their § 416.927 Evaluating opinion evidence. Background disabilities, national origin or primary language. Nothing in these regulations * * * * * With one minor change, we are (b) How we consider medical increases the likelihood of making final the rules protecting the discrimination against any claimant or opinions. In determining whether you public and our employees in our are disabled, we will always consider other individual based disability, hearing process that we published as national origin or primary language. the medical opinions in your case interim final rules in the Federal record together with the rest of the Rather, the regulations focus solely on Register on March 14, 2011 (76 FR the conduct of the individual posing a relevant evidence we receive. See 13506). The preamble to the interim § 416.920b. threat and the consequences of such final rules discussed the new rules and activity. * * * * * our reasons for proposing those ■ 14. Amend § 416.945 by revising the additions. Interested readers may refer Regulatory Procedures fifth sentence of paragraph (a)(3) to read to the preamble to the interim final Executive Order 12866 as 1 as follows: rules. Supplemented by Executive Order § 416.945 Your residual functional 13563 1 capacity. The interim final rules are available at http:// www.regulations.gov/#!documentDetail;D=SSA- We consulted with the Office of (a) * * * 2011-0008-0001. Management and Budget (OMB) and

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determined that these final rules meet § 404.937 Protecting the safety of the DEPARTMENT OF HEALTH AND the criteria for a significant regulatory public and our employees in our hearing HUMAN SERVICES action under Executive Order 12866 as process. supplemented by Executive Order * * * * * Food and Drug Administration 13563. Thus, OMB reviewed these final (b)(1) * * * The Hearing Office Chief 21 CFR Part 1 rules. Administrative Law Judge will find that Regulatory Flexibility Act a claimant or other individual poses a [Docket No. FDA–2002–N–0153] (Formerly Docket No. 2002N–0277) We certify that these final rules will threat to the safety of our employees or not have a significant economic impact other participants in the hearing when RIN 0910–AG73 on a substantial number of small entities he or she determines that the individual as they affect individuals only. has made a threat and there is a Establishment, Maintenance, and Therefore, a regulatory flexibility reasonable likelihood that the claimant Availability of Records: Amendment to analysis is not required under the or other individual could act on the Record Availability Requirements Regulatory Flexibility Act, as amended. threat or when evidence suggests that a AGENCY: Food and Drug Administration, claimant or other individual poses a Paperwork Reduction Act HHS. threat. * * * ACTION: Interim final rule; request for These rules do not create any new or * * * * * comments. affect any existing collections and, therefore, do not require OMB approval PART 416—SUPPLEMENTAL SUMMARY: The Food and Drug under the Paperwork Reduction Act. SECURITY INCOME FOR THE AGED, Administration (FDA) is amending its (Catalog of Federal Domestic Assistance BLIND, AND DISABLED regulations on establishment, Program Nos. 96.001, Social Security— maintenance, and availability of Disability Insurance; 96.002, Social Subpart N—[Amended] records. FDA is issuing this interim Security—Retirement Insurance; 96.004, final rule (IFR) to amend FDA’s Social Security—Survivors Insurance; regulation on the record availability 96.006, Supplemental Security Income.) ■ 3. The authority citation for subpart N continues to read as follows: requirements to implement the List of Subjects amendments to the Federal Food, Drug, Authority: Secs. 702(a)(5), 1631, and 1633 20 CFR Part 404 and Cosmetic Act (the FD&C Act) made of the Social Security Act (42 U.S.C. by the FDA Food Safety Modernization Administrative practice and 902(a)(5), 1383, and 1383b); sec. 202, Pub. L. Act (FSMA). The FSMA amendment procedure; Blind, Disability benefits; 108–203, 118 Stat. 509 (42 U.S.C. 902 note). expands FDA’s former records access Old-age, Survivors and disability ■ 4. Amend § 416.1437 by revising the authority beyond records relating to the insurance; Reporting and recordkeeping specific suspect article of food to requirements; Social Security. second sentence of paragraph (b)(1) to read as follows: records relating to any other article of 20 CFR Part 416 food that the Secretary of Health and § 416.1437 Protecting the safety of the Human Services (the Secretary) Administrative practice and public and our employees in our hearing reasonably believes is likely to be procedure; Reporting and recordkeeping process. affected in a similar manner. In requirements; Supplemental Security * * * * * addition, the FSMA amendment permits Income (SSI). FDA to access records relating to articles (b)(1) * * * The Hearing Office Chief Michael J. Astrue, of food for which the Secretary believes Administrative Law Judge will find that Commissioner of Social Security. that there is a reasonable probability a claimant or other individual poses a that the use of or exposure to the article For the reasons stated in the threat to the safety of our employees or preamble, we are amending subpart J of of food, and any other article of food other participants in the hearing when that the Secretary reasonably believes is part 404 and subpart N of part 416 of he or she determines that the individual title 20 of the Code of Federal likely to be affected in a similar manner, has made a threat and there is a Regulations as set forth below: will cause serious adverse health reasonable likelihood that the claimant consequences or death to humans or PART 404—FEDERAL OLD-AGE, or other individual could act on the animals. This expanded records access SURVIVORS AND DISABILITY threat or when evidence suggests that a authority will further help improve INSURANCE (1950– ) claimant or other individual poses a FDA’s ability to respond to, and further threat. * * * contain threats of serious adverse health Subpart J—[Amended] * * * * * consequences or death to humans or animals. ■ 1. The authority citation for subpart J [FR Doc. 2012–4178 Filed 2–22–12; 8:45 am] of part 404 continues to read as follows: BILLING CODE 4191–02–P DATES: Effective date: This interim final rule is effective March 1, 2012. Authority: Secs. 201(j), 204(f), 205(a), (b), Comment date: Interested persons (d)–(h), and (j), 221, 223(i), 225, and 702(a)(5) may submit either electronic or written of the Social Security Act (42 U.S.C. 401(j), 404(f), 405(a), (b), (d)–(h), and (j), 421, 423(i), comments on this interim final rule by 425, and 902(a)(5)); sec. 5, Pub. L. 97–455, 96 May 23, 2012. Stat. 2500 (42 U.S.C. 405 note); secs. 5, 6(c)– FOR FURTHER INFORMATION CONTACT: (e), and 15, Pub. L. 98–460, 98 Stat. 1802 (42 William A. Correll, Jr., Office of U.S.C. 421 note); sec. 202, Pub. L. 108–203, Compliance (HFS–607), Center for Food 118 Stat. 509 (42 U.S.C. 902 note). Safety and Applied Nutrition, Food and ■ 2. Amend § 404.937 by revising the Drug Administration, 5100 Paint Branch second sentence of paragraph (b)(1) to Pkwy., College Park, MD 20740, 240– read as follows: 402–1611.

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ADDRESSES: You may submit comments, problems after they occur. The law also limits and in a reasonable manner. The identified by Docket No. FDA–2002–N– provides FDA with new enforcement Bioterrorism Act also amended section 0153 (formerly Docket No. 2002N–0277) authorities to help it achieve higher 704(a)(1)(B) of the FD&C Act (21 U.S.C. and/or Regulatory Information Number rates of compliance with prevention and 374(a)(1)(B)) to include a cross-reference (RIN) 0910–AG73 by any of the risk-based food safety standards and to to section 414 of the FD&C Act. Section following methods: better respond to and contain problems 101 of FSMA amends this section by when they do occur. The law also gives updating the cross-reference to refer to Electronic Submissions FDA important new tools to better the amended version of section 414(a). Submit electronic comments in the ensure the safety of imported foods and The amendments made by section 101 following way: directs FDA to build an integrated of FSMA to the FD&C Act were effective • Federal eRulemaking Portal: http:// national food safety system in upon enactment of the law (January 4, www.regulations.gov. Follow the partnership with State and local 2011). instructions for submitting comments. authorities. B. Brief History of Establishment, Written Submissions Section 101 of FSMA amends section Maintenance, and Availability of 414(a) of the FD&C Act (21 U.S.C. Records Submit written submissions in the 350c(a)). Section 414 was added to the following ways: Among other things, section 306(a) of FD&C Act by the Public Health Security • FAX: 301–827–6870. the Bioterrorism Act amended the FD&C and Bioterrorism Preparedness and • Mail/Hand delivery/Courier (for Act by adding section 414(a) to the Response Act of 2002 (the Bioterrorism paper or CD–ROM submissions): FD&C Act, which provided FDA with Act) (Pub. L. 107–188). As amended Division of Dockets Management (HFA– the authority to access records if FDA section 414(a) of the FD&C Act expands 305), Food and Drug Administration, has a reasonable belief that an article of FDA’s access to records. Specifically, 5630 Fishers Lane, Rm. 1061, Rockville, food is adulterated and presents a threat FDA’s access to records was expanded MD 20852. of serious adverse health consequences beyond records relating to the specific Instructions: All submissions received or death to humans or animals, persons suspect article of food to records must include the Agency name, docket who manufacture, process, pack, relating to any other article of food that number and RIN for this rulemaking. All distribute, receive, hold, or import food the Secretary (by delegation FDA) comments received may be posted must provide access to records related reasonably believes is likely to be without change to http:// to the food that are needed to assist FDA affected in a similar manner. In www.regulations.gov, including any in determining whether the food is addition, FDA can now access records if personal information provided. For adulterated and presents a threat of FDA believes that there is a reasonable additional information on submitting serious adverse health consequences or probability that the use of or exposure comments, see the ‘‘Comments’’ heading death to humans or animals. The statute to an article of food, and any other of the SUPPLEMENTARY INFORMATION provided for such records to be article of food that FDA reasonably section of this document. provided under certain conditions, believes is likely to be affected in a Docket: For access to the docket to including at reasonable times. similar manner, will cause serious read background documents or In addition, section 306(a) of the adverse health consequences or death to comments received, go to http:// Bioterrorism Act added a new section humans or animals. Decisions regarding www.regulations.gov and insert the 414(b) to the FD&C Act that provided, whether FDA ‘‘reasonably believes’’ a docket number, found in in the in part, that FDA may by regulation food is affected in a similar manner to heading of this document, into the establish requirements regarding cause serious adverse health ‘‘Search’’ box and follow the prompts establishment and maintenance, for not consequences or death to humans or and/or go to the Division of Dockets longer than 2 years, of records by animals would be made on a case-by- Management, 5630 Fishers Lane, rm. persons (excluding farms and case basis because such decisions are 1061, Rockville, MD 20852. restaurants) who manufacture, process, fact-specific. Section 414(a) of the FD&C pack, transport, distribute, receive, hold, SUPPLEMENTARY INFORMATION: Act further provides that, at the request or import food. The records that are I. Background of an officer or employee duly required to be kept by these regulations designated by FDA, each person are those needed by FDA for inspection A. Legal Background (excluding farms and restaurants) who to allow FDA to identify the immediate Each year about 48 million people (1 manufactures, processes, packs, previous sources and immediate in 6 Americans) get sick, 128,000 are distributes, receives, holds, or imports subsequent recipients of food. hospitalized, and 3,000 die from food such article shall permit such officer or Section 306(b) of the Bioterrorism Act borne diseases, according to recent data employee to have access to and copy all also amended section 704(a) of the from the Centers for Disease Control and records relating to such article and any FD&C Act to authorize FDA inspections Prevention (CDC) (Estimates of other article of food that FDA of all records and other information Foodborne Illness in the United States— reasonably believes is likely to be described in section 414 of the FD&C CDC 2011 Estimates, available at affected in a similar manner. FDA shall Act, when FDA has a reasonable belief http://www.cdc.gov/foodborneburden). have access to the records that are that an article of food is adulterated and This is a significant public health needed to assist FDA in determining presents a threat of serious adverse burden that is largely preventable. whether there is a reasonable health consequences or death to humans FSMA (Pub. L. 111–353), signed into probability that the use of or exposure or animals. law by President Obama on January 4, to the food will cause serious adverse Further, section 306(c) of the 2011, enables FDA to better protect health consequences or death to humans Bioterrorism Act amended section 301 public health by helping to ensure the or animals. To gain access to these of the FD&C Act (21 U.S.C. 331) to make safety and security of the food supply. records, the officer or employee must it a prohibited act to refuse to permit It enables FDA to focus more on present appropriate credentials and a access to, or copying of, any record as preventing food safety problems rather written notice to such person, at required by section 414 or 704(a) of the than relying primarily on reacting to reasonable times and within reasonable FD&C Act; or to fail to establish or

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maintain any record as required by that use of prior notice and comment impact on a substantial number of small section 414(b) of the FD&C Act; or to procedures for issuing this IFR is entities. refuse to permit access to, or verification contrary to the public interest. This IFR Section 202(a) of the Unfunded or copying of, any such required record; modifies § 1.361 to be consistent with Mandates Reform Act of 1995 (Pub. L. or for any person to use to his own the current statutory language in section 104–4) requires that Agencies prepare a advantage, or to reveal, other than to 414(a) of the FD&C Act and to require written statement, which includes an FDA or officers or employees of the that records and other information be assessment of anticipated costs and Department of Health and Human provided as soon as possible, but no benefits, before proposing ‘‘any rule that Services, or to the courts when relevant later than 24 hours from the receipt of includes any Federal mandate that may in any judicial proceeding under the an official records request. Because result in the expenditure by State, local, FD&C Act, any information acquired FDA’s expanded records access and tribal governments, in the aggregate, under authority of section 414 of the authority was effective upon the or by the private sector, of $100,000,000 FD&C Act. enactment of FSMA, it is contrary to the or more (adjusted annually for inflation) In accordance with the Bioterrorism public interest to require those members in any one year.’’ The current threshold Act, FDA issued a proposed rule in the of the public whose records are after adjustment for inflation is $136 Federal Register on May 9, 2003 (68 FR requested under FDA’s expanded million, using the most current (2010) 25188) (the 2003 proposed rule), authority to produce records without Implicit Price Deflator for the Gross proposing to require the establishment regulations explaining how to comply Domestic Product. FDA does not expect and maintenance of records to identify with FDA’s new authority. Thus, in the this IFR to result in any 1-year the immediate previous sources and interest of protecting the public health expenditure that would meet or exceed immediate subsequent recipients of food and eliminating any possible confusion this amount. and the record availability about how to comply with FDA’s In the 2003 proposed rule, FDA requirements. On December 9, 2004, expanded authority, FDA is dispensing analyzed the economic impact of the FDA issued a final rule in the Federal with the need for prior notice and proposed rule to require the Register (69 FR 71562) (the 2004 final comment and is issuing this IFR. establishment and maintenance of records and record availability rule) specifying the requirements for the Further, under 5 U.S.C. 553(d)(3) and requirements under the Bioterrorism establishment and maintenance of § 10.40(d), we find good cause to make Act (68 FR 25188). The Economic records, including among other this IFR effective immediately. As stated Impact Analysis of the 2004 final rule provisions the record availability previously in this document, to protect requirements. The establishment, (69 FR 71562 at 71611) revised the the public health it is necessary that we maintenance, and availability of records analysis set forth in the 2003 proposed act quickly to make the regulation at regulations have been codified at part 1, rule in response to comments on the issue consistent with the current subpart J (21 CFR part 1, subpart J). proposed rule and to account for the The current regulation at § 1.361 statutory provisions in order to changes between the proposed and final primarily tracks the language of section eliminate any possible confusion that rules. The Economic Impact Analysis in 414(a) of the FD&C Act prior to the may arise during the time that the this IFR explains and further revises the amendments made by FSMA. However, regulation and statute are inconsistent. analysis set forth in the 2004 final rule the regulation does specify the As discussed later in this document, by addressing the economic impact of timeframe in which the records must be FDA invites public comment on this the amendments made by section 101 of provided in that requested records and IFR. FSMA. information must be made available as II. Analysis of Impacts A. Need for Regulation soon as possible, not to exceed 24 hours, from the time of receipt of an official FDA has examined the impacts of this The need for this IFR arises from request. As specified by the statute, the IFR under Executive Order 12866, section 101 of FSMA which expands request must be from an officer or Executive Order 13563, the Regulatory FDA’s access to records beyond records employee designated by the Secretary Flexibility Act (5 U.S.C. 601–612), and relating to the specific suspect article of who presents appropriate credentials the Unfunded Mandates Reform Act of food to records relating to any other and a written notice. 1995 (Pub. L. 104–4). Executive Orders article of food that FDA reasonably This IFR amends § 1.361 by replacing 12866 and 13563 direct Agencies to believes is likely to be affected in a the current text with language that assess all costs and benefits of available similar manner. In addition, the FSMA reflects the language of section 414 of regulatory alternatives and, when amendment provides FDA additional the FD&C Act as amended by section regulation is necessary, to select access to records relating to articles of 101 of FSMA. This amendment regulatory approaches that maximize food for which FDA believes that there conforms the regulation to the statute net benefits (including potential is a reasonable probability that the use that is now in effect. Upon publication economic, environmental, public health of or exposure to the article of food, and of this IFR, records requested by FDA and safety, and other advantages; any other article of food that FDA under amended section 414(a)(1) and distributive impacts; and equity). The reasonably believes is likely to be (a)(2) of the FD&C Act will fall within Office of Management and Budget affected in a similar manner, will cause the scope of the availability (OMB) has determined that this IFR is serious adverse health consequences or requirements in the regulation. a significant regulatory action as defined death to humans or animals. This by Executive Order 12866. amendment will further help the C. Justification for Interim Final The Regulatory Flexibility Act Agency prevent potentially harmful Rulemaking requires Agencies to analyze regulatory food from reaching consumers and In accordance with the provisions of options that would minimize any thereby improve the safety of the food the Administrative Procedure Act at 5 significant impact of a rule on small supply in the United States. This IFR U.S.C. 553(b)(3)(B) and FDA’s entities. Because the additional costs amends the record availability administrative practices and procedures per entity of this IFR are negligible if requirements in § 1.361 in accordance regulations at § 10.40(e)(1) (21 CFR any, the Agency also concludes that this with the new records access authority in 10.40(e)(1)), FDA finds for good cause IFR will not have a significant economic section 414(a) of the FD&C Act, which

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became effective immediately upon the (69 FR 71562 at 71654), and thus the resulting from this IFR are likely to be enactment of FSMA. marginal cost is estimated to be in addition to benefits already estimated negligible. in the 2004 final rule. B. Costs Since neither the FDA nor firms are FDA expects the costs related to this able to predict the number of records III. Small Entity Analysis (or Final IFR to be negligible. According to the requested to complete an investigation Regulatory Flexibility Analysis) 2004 final rule analysis, the final rule under the current authority or the new FDA examined the economic covered more than 1 million entities, authority, additional costs to retrieve implications of this IFR as required by and this IFR covers those same entities. any number of additional records are the Regulatory Flexibility Act (5 U.S.C. Because, as a standard business estimated to be the same under this IFR 601–612). If a rule has a significant practice, most firms were already as they were under the 2004 final rule, economic impact on a substantial capable of providing records access regardless of the number of records number of small entities, the Regulatory within 24 hours of a request, records requested. Flexibility Act requires us to analyze access planning costs and records FDA would use this new authority in regulatory options that would lessen the retention (which include storage and a targeted fashion and it is unlikely that economic effect of the rule on small retrieval) costs were estimated to be zero FDA would request all records from a entities. in the 2004 final rule and were not suspect facility. The records FDA will The Regulatory Flexibility Act reported in the total costs estimate. access and copy will be focused on requires analyzing options for regulatory As this IFR only affects FDA’s addressing the immediate needs of the relief for small businesses. In authority to access already existing inspection. compliance with the Regulatory records, most records management To the extent that FDA requests Flexibility Act this IFR will not have a procedures will not change. As stated in access to more records than it was significant impact on a substantial the 2004 final rule (69 FR 71562 at previously allowed to access under number of small businesses. 71635), the estimated records access similar circumstances, businesses may costs are based on the private costs of incur additional retrieval costs per IV. Paperwork Reduction Act of 1995 planning for a records access request. record. However, the costs of retrieving This interim final rule contains The costs to plan for a records access one or more additional records from any information collection provisions that request are the same under this IFR as number of records still remain part of are subject to the Paperwork Reduction they were under the 2004 final rule, the private costs for records retention Act of 1995 (44 U.S.C. 3501–3520). regardless of the number of records which are determined by a firm’s We conclude that these information requested. FDA does not estimate the business plan. Thus, any potential costs collection provisions are exempt from probability of a records access request. to businesses from this IFR in terms of OMB review under 44 U.S.C. To the extent that FDA would have retrieving more records than under the 3518(c)(1)(B)(ii) and 5 CFR 1320.4(a)(2) access to additional records that we 2004 final rule are also expected to be as collections of information obtained previously could not access, the small. during the conduct of a civil action to following potential costs could be which the United States or any official C. Benefits incurred by both FDA and businesses: or agency thereof is a party, or during 1. Costs to FDA: Costs incurred by In the 2004 final rule analysis, FDA the conduct of an administrative action, FDA could result from the additional estimated the number of illnesses investigation, or audit involving an time it would take to analyze records in prevented (excluding those associated agency against specific individuals or order to complete an investigative visit. with food security) to be approximately entities. The regulations in 5 CFR On average, records access times 1,204 (69 FR 71562 at 71616). Averted 1320.3(c) provide that the exception in depend, in part, on how records are illnesses in the 2004 final rule were 5 CFR 1320.4(a)(2) applies during the stored and maintained; average travel attributed to having quicker access to entire course of the investigation, audit times, length of overnight stays required records (24-hour time period) to initiate or action, but only after a case file or for completing an investigative visit; an investigation and also due to an equivalent is opened with respect to a and average records analysis times. increased ability to complete particular party. Such a case file would According to the 2004 final rule, the investigations that previously would be opened as part of the request to time required to analyze records have been prematurely terminated due access records under § 1.361. depends on the quality of the records to poor records quality (69 FR 71562 at (69 FR 71562 at 71616). Potential costs 71614). V. Analysis of Environmental Impact to the Agency from this IFR in terms of Similarly, the expected benefits from The Agency has carefully considered additional time needed to analyze more this IFR will be from minimizing the potential environmental effects of records than under the 2004 final rule consumer exposure to potentially this action. FDA has determined under are expected to be small. dangerous foods. These benefits will be 21 CFR 25.30(h) that this action is of a 2. Costs to businesses: Costs incurred achieved by FDA having access to type that does not individually or by businesses could result from an FDA records beyond those relating only to cumulatively have a significant effect on access request requiring them to retrieve the specifically suspect article of food. the human environment. Therefore, a larger number of records than they By expanding the current records access neither an environmental assessment would have otherwise retrieved under authority to include records relating to nor an environmental impact statement the current authority. Similar to the any other article of food that FDA is required. costs of planning for a records access reasonably believes is likely to be request, the 2004 final rule estimated affected in a similar manner, FDA can VI. Federalism records retrieval costs are also based on now access additional information that FDA has analyzed this IFR in the private costs of retrieving records can enhance FDA’s food safety efforts. accordance with the principles set forth (69 FR 71562 at 71635). This IFR does FDA has not quantified any additional in Executive Order 13132. FDA has not require firms to make any changes benefits from this IFR, but because this determined that the IFR does not in records retention practices beyond IFR enhances food safety and security contain policies that have substantial the requirement in the 2004 final rule efforts, we reason that any benefits direct effects on the States, on the

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relationship between the National and any other article of food that FDA ADDRESSES: Submit electronic Government and the States, or on the reasonably believes is likely to be comments on the guidance to http:// distribution of power and affected in a similar manner, will cause www.regulations.gov. Submit written responsibilities among the various serious adverse health consequences or comments to the Division of Dockets levels of government. Accordingly, the death to humans or animals, any records Management (HFA–305), Food and Drug Agency concludes that the IFR does not and other information accessible to FDA Administration, 5630 Fishers Lane, rm. contain policies that have federalism under section 414 or 704(a) of the 1061, Rockville, MD 20852. Submit implications as defined in the Executive Federal Food, Drug, and Cosmetic Act written requests for single copies of the order and, consequently, a federalism (21 U.S.C. 350c and 374(a)) must be guidance to the Outreach and summary impact statement is not made readily available for inspection Information Center (HFS–009), Center required. and photocopying or other means of for Food Safety and Applied Nutrition, reproduction. Such records and other Food and Drug Administration, 5100 VII. Comments information must be made available as Paint Branch Pkwy., College Park, MD The requirements in this IFR will be soon as possible, not to exceed 24 hours 20740. Send two self-addressed in effect immediately upon publication from the time of receipt of the official adhesive labels to assist that office in in the Federal Register. FDA invites request, from an officer or employee processing your request. See the public comment on this IFR and will duly designated by the Secretary of SUPPLEMENTARY INFORMATION section for consider modifications to it based on Health and Human Services who electronic access to the guidance. comments made during the comment presents appropriate credentials and a FOR FURTHER INFORMATION CONTACT: period when FDA issues the final rule. written notice. William A. Correll, Jr., Center for Food FDA intends to finalize this IFR 1 year Dated: February 17, 2012. Safety and Applied Nutrition (HFS– from the close of the comment period. 607), Food and Drug Administration, Interested persons may submit to the Leslie Kux, Acting Assistant Commissioner for Policy. 5100 Paint Branch Pkwy., College Park, Division of Dockets Management (see MD 20740, 240–402–1611. ADDRESSES) either electronic or written [FR Doc. 2012–4165 Filed 2–22–12; 8:45 am] SUPPLEMENTARY INFORMATION: comments regarding this document. It is BILLING CODE 4160–01–P only necessary to send one set of I. Background comments. Identify comments with the FDA is announcing the availability of docket number found in brackets in the DEPARTMENT OF HEALTH AND HUMAN SERVICES a guidance entitled ‘‘Questions and heading of this document. Received Answers Establishment and comments may be seen in the Division Food and Drug Administration Maintenance of Records by Persons of Dockets Management between 9 a.m. Who Manufacture, Process, Pack, and 4 p.m., Monday through Friday. 21 CFR Part 1 Transport, Distribute, Receive, Hold, or Import Food (Edition 5),’’ which List of Subjects in 21 CFR Part 1 [Docket No. FDA–2011–D–0598] replaces the fourth edition of a guidance Cosmetics, Drugs, Exports, Food of the same title issued in September labeling, Imports, Labeling, Reporting Guidance for Industry: Questions and 2006. The guidance is intended for and recordkeeping requirements. Answers Regarding Establishment and persons who manufacture, process, Therefore, under the Federal Food, Maintenance of Records by Persons Who Manufacture, Process, Pack, pack, hold, or import human or animal Drug, and Cosmetic Act and under foods intended for distribution to authority delegated to the Commissioner Transport, Distribute, Receive, Hold, or Import Food (Edition 5) consumers, institutions, or food of Food and Drugs, 21 CFR part 1 is processors. amended as follows: AGENCY: Food and Drug Administration, In the Federal Register of December 9, HHS. PART 1—GENERAL ENFORCEMENT 2004 (69 FR 71562), FDA published a REGULATIONS ACTION: Notice of guidance availability. final rule implementing sections 414 and 704 of FD&C Act (21 U.S.C. 350c SUMMARY: ■ 1. The authority citation for 21 CFR The Food and Drug and 374) as amended by section 306 of part 1 continues to read as follows: Administration (FDA) is announcing the the Public Health Security and availability of a guidance entitled Bioterrorism Preparedness and Authority: 15 U.S.C. 1453, 1454, 1455; 19 ‘‘Questions and Answers Regarding Response Act of 2002. The final rule U.S.C. 1490, 1491; 21 U.S.C. 321, 331, 333, Establishment and Maintenance of requires the establishment and 334, 335a, 343, 350c, 350d, 352, 355, 360b, Records by Persons Who Manufacture, 362, 371, 374, 381, 382, 387, 387a, 393; 42 maintenance of records by persons who U.S.C. 216, 241, 243, 262, 264. Process, Pack, Transport, Distribute, manufacture, process, pack, transport, Receive, Hold, or Import Food (Edition ■ 2. Section 1.361 is revised to read as distribute, receive, hold, or import food 5).’’ This guidance provides updated follows: in the United States. Such records are to information pertaining to the allow for the identification of the § 1.361 What are the record availability establishment and maintenance of immediate previous sources and the requirements? records by persons who manufacture, immediate subsequent recipients of When FDA has a reasonable belief process, pack, transport, distribute, food. FSMA, signed into law on January that an article of food, and any other receive, hold, or import food in the 4, 2011 (Pub. L. 111–353), amended article of food that FDA reasonably United States under the Federal Food, sections 414 and 704 of the FD&C Act believes is likely to be affected in a Drug, and Cosmetic Act (FD&C Act), as by expanding FDA’s access to records similar manner, is adulterated and amended by the FDA Food Safety and relating to foods that may cause serious presents a threat of serious adverse Modernization Act (FSMA) of January 4, adverse health consequences or death to health consequences or death to humans 2011. humans or animals. In February 2012, or animals, or when FDA believes that DATES: February 23, 2012. Submit either FDA issued an interim final rule that there is a reasonable probability that the electronic or written comments on revises § 1.361 (21 CFR 1.361) to reflect use of or exposure to an article of food, Agency guidances at any time. the FSMA amendments to the FD&C

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Act. This guidance document has been which the United States or any official 15, instead of August 15, of the year updated to reflect these changes. or Agency thereof is a party, or during before the fiscal year in which the On September 12, 2005, FDA issued the conduct of an administrative action, application would be considered for the first edition of a guidance entitled investigation, or audit involving an inclusion on the priority list for the ‘‘Questions and Answers Regarding the Agency against specific individuals or award of grants. We require certification Establishment and Maintenance of entities. The regulations in 5 CFR of State matching funds to be submitted Records.’’ This document is the fifth 1320.3(c) provide that the exception in no later than August 1, instead of edition of that guidance and is updated 5 CFR 1320.4(a)(2) applies during the August 15, in order for the project to be to reflect changes to the FD&C Act made entire course of the investigation, audit placed in priority group 1 of the priority by FSMA. This guidance is intended to or action, but only after a case file or list for the next fiscal year. The purpose provide individuals in the human and equivalent is opened with respect to a of these changes is to ensure that VA animal food industries with an updated particular party. Such a case file would has sufficient time to process all overview of FDA’s access to records. It be opened as part of the request to applications received and timely provides practical information by access records under § 1.361. prepare the priority list, so that we can answering common questions that cover accurately notify States that VA intends a range of topics, including who is III. Comments to select and fund particular projects. subject to records requirements, the Interested persons may submit to the We also make technical revisions to scope of records retention and Division of Dockets Management (see conform our regulations to these availability requirements, and the ADDRESSES) either electronic or written revisions. consequences of failing to establish and comments regarding this document. It is DATES: This final rule is effective March maintain required records or failing to only necessary to send one set of 26, 2012. make required records available to FDA. comments. Identify comments with the FOR FURTHER INFORMATION CONTACT: This guidance is being issued consistent docket number found in brackets in the Vernon Wilkes, State Veterans Homes with FDA’s good guidance practices heading of this document. Received (10NA5), 1717 H Street NW., regulation § 10.115 (21 CFR 10.115) as a comments may be seen in the Division level 1 guidance. The Agency will Washington, DC 20006, (202) 266–4617. of Dockets Management between 9 a.m. (This is not a toll-free number.) accept comments, but it is and 4 p.m., Monday through Friday. implementing this document SUPPLEMENTARY INFORMATION: Under immediately, in accordance with IV. Electronic Access 38 U.S.C. 8131 through 8138, VA is § 10.115(g)(2) because the Agency has Persons with access to the Internet authorized to award grants to assist determined that prior public may obtain the guidance at either States in constructing, remodeling, participation is not feasible or http://www.fda.gov/FoodGuidances or altering, or expanding State home appropriate. The Agency made this http://www.regulations.gov. Always facilities that will furnish specified determination because this guidance access an FDA guidance document by types of care to veterans. VA has simply reflects the statutory changes using the Web sites listed previously to implemented this statutory authority at made by section 101 of FSMA to find the most current version of the 38 CFR part 59. Under 38 U.S.C. 8135, States that sections 414 and 704 of the FD&C Act guidance. and seeks to remove any confusion that wish to receive assistance for a State might arise due to the existence of a Dated: February 17, 2012. home construction project (or guidance document that is inconsistent Leslie Kux, acquisition of an existing facility to be with the FD&C Act and its Acting Assistant Commissioner for Policy. used as a State home facility) must implementing regulations. In addition, [FR Doc. 2012–4167 Filed 2–22–12; 8:45 am] submit an application that includes much of this guidance remains the same BILLING CODE 4160–01–P certain information and documentation as the guidance issued in September described in the statute. VA has 2006. implemented the application This guidance represents the Agency’s DEPARTMENT OF VETERANS requirement in current § 59.20(a), which current thinking on its authority to AFFAIRS requires that applicants seeking access and copy records. It does not inclusion on the priority list for grants create or confer any rights for or on any 38 CFR Part 59 awarded during the next fiscal year person and does not operate to bind submit to VA an original and one copy RIN 2900–AN77 FDA or the public. An alternate of a completed VA Form 10–0388–1 and approach may be used if such approach Due Date of Initial Application all information, documentation, and satisfies the requirements of the Requirements for State Home other forms specified by VA Form 10– applicable statutes and regulations. Construction Grants 0388–1. Under current § 59.20(c), VA encourages the submission of the II. Paperwork Reduction Act of 1995 AGENCY: Department of Veterans Affairs. application by April 15 but considers This guidance refers to information ACTION: Final rule. any application submitted before collection provisions found in FDA August 16 for inclusion on the priority regulations. These collections of SUMMARY: This final rule amends the list. VA maintains the ‘‘priority list’’ information are subject to review by the Department of Veterans Affairs (VA) pursuant to current 38 CFR 59.50. Office of Management and Budget regulations concerning the calendar date Additionally, under current § 59.70(b), (OMB) under the Paperwork Reduction by which VA must receive an initial VA requires a State to commit funds for Act of 1995 (44 U.S.C. 3501–3520). We application for a State Home a project before August 16 in order for conclude that the collection of Construction Grant in order for the that project to be eligible for inclusion information in § 1.361 is exempt from application to be included on the in priority group 1 of the priority list for OMB review under 44 U.S.C. priority list for the award of grants the next fiscal year. 18(c)(1)(B)(ii) and 5 CFR 1320.4(a)(2) as during the next fiscal year. We require On March 1, 2011, VA published a collections of information obtained that initial application materials must proposed rule to improve the clarity and during the conduct of a civil action to be received by VA no later than April efficacy of the application process and

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to address certain administrative site of the project, a floor plan, and a expense of America’s veterans. VA challenges presented by the current rendering of the exterior of the building. strives diligently to remain veteran- rules. 76 FR 11187 (Mar. 1, 2011). We Although these may require some centric in all of its programs. proposed adopting April 15 as the due financial expense, we believe that the Clarification of the due date and the date for applications, including cost is usually between $6,000 and technical changes proposed in this matching funding. We provided a 60- $10,000. In any event, it is never a amendment are designed to mirror day comment period during which we significant expense in relation to the current practice and to facilitate a received eight comments from State cost of the project itself, which is thorough and complete review of grant departments of veterans affairs and State usually over $30 million. We do not applications prior to funding, in an veterans homes and a comment from the believe that it should be necessary to effort to minimize program delays and National Association of State Veterans wait for a State legislature to authorize make space in the State homes available Homes. All of the commenters raised the expense or time for producing these to our veterans as quickly as possible. similar or identical concerns, which we application materials. VA has always initiated review of address below. We are grateful for their The commenters challenged VA’s proposals upon receipt, which in most submissions and, after careful need for the additional review time, cases has been by the April 15 date cited deliberation, make one change to the citing the impact of the American in § 59.20. However, VA’s review of final rule based on these comments. Recovery and Reinvestment Act of 2009 these grants and their construction First, several commenters assert that (ARRA) on the previous grant cycle plans necessitates numerous internal they have consistently treated the April asserting that it resulted in an concurrences; communications with the 15 date as a ‘‘preapplication’’ date and anomalously high number of States for clarification of the application acknowledge that they complete as applications. We acknowledge that the materials; development and adoption of much of the application as possible on ARRA increased the 2010 workload but memorandums of understanding for or before that date. However, they argue maintain that there is a need for each project; and other significant, time- that it is impossible to meet an April 15 additional review time in general, based consuming, relevant processes. Each deadline for matching funds because the on the uniqueness of each fiscal year, proposal is unique and may have fiscal year for most States begins on July the complexity of the projects, and the special issues, including terrain, access, 1, which is after that deadline. To need for extensive detailed and careful potential for natural disaster, facility address this concern, the final rule review of each application. In fact, we measures, varying codes and local adopts a separate, later, deadline for the had begun reassessing the August 15 requirements, etc. VA staff assesses new official certification of matching funds. due date before Fiscal Year 2010. construction as well as renovations to Under the final rule, the application Adoption of the proposed April 15 facilities of various ages, under an must be received no later than April 15. application due date, while allowing assortment of State and national If official certification of the matching States to submit documentation of construction and safety standards, to funds is received on or before August 1, matching funds by August 1, will allow ascertain that each element of the the State may be included in priority VA to provide due diligence in the application is thorough, complete, and group 1. review and prioritization process, while current. Requiring this detailed review This will allow VA to review the maximizing the States’ opportunity to prior to prioritization and funding submissions and establish each obtain and document matching funds to ensures that the project is ‘‘shovel application in priority groups 2 through secure a position in priority group 1. ready’’ when funds become available. 7 (which mirror the sub-priorities in Several commenters recommended This, in turn, helps ensure that VA priority group 1 with the distinction delaying publication of the priority list funds projects that will be ready, on that projects in priority group 1 have rather than altering the due date. We time, for waiting veterans. State matching funds while those in appreciate the flexibility recommended Acknowledging the effort the States priority groups 2 through 7 lack these by these parties but note that release of have historically made to submit resources). When a State is able to the priority list is determined by the applications by the April 15 date to provide documentation of State time federal budget funds are secure their position on the priority list, matching funds, the application will be appropriated. Regardless of the ultimate we believe formal adoption of an April placed in the appropriate position in date the budget is finalized, VA strives 15 deadline, with the August 1 date for priority group 1. Should a State be to publish the priority list in a timely documentation of matching funds for unable to document matching funds by manner and will continue to do so in an placement in priority group 1, will help the new August 1 deadline, the project effort to provide quick, efficient VA and the States and, most will be placed in one of groups 2 distribution of and maximum access to importantly, serve the needs of veterans through 7 for the following fiscal year. available funds. by improving existing space and making Some commenters argue that the The commenters also argue new space available for eligible veterans burden of filing the application itself, administrative inconvenience. However, at the earliest possible moment. not just the matching-funds the initial application materials are not requirement, would be impossible to overly burdensome, and requiring the Unfunded Mandates meet before April 15. Previous earlier deadlines will help VA ensure The Unfunded Mandates Reform Act experience is that most States already the timely delivery of funds to worthy of 1995 requires, at 2 U.S.C. 1532, that submit preapplication materials on or State projects. Because most agencies prepare an assessment of before April 15, as acknowledged by the applications are already received by anticipated costs and benefits before commenters themselves, and thus, we April 15, this date is reasonable, and issuing any rule that may result in an do not think that there will be a new allowing for the August 1 date for the expenditure by State, local, and tribal significant burden. The items required certification of matching funds governments, in the aggregate, or by the on the VA Form 10–0388–1 are addresses the administrative needs of private sector, of $100 million or more generally administrative information the States. (adjusted annually for inflation) in any (such as identifier numbers) and the Finally, commenters objected to VA’s given year. This rule would have no schematics of the project. Schematics rulemaking as being based solely on the such effect on State, local, and tribal generally require an aerial view of the administrative needs of VA staff, at the governments, or on the private sector.

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Paperwork Reduction Act Regulatory Flexibility Act PART 59—GRANTS TO STATES FOR CONSTRUCTION OR ACQUISITION OF Although this document contains The Secretary hereby certifies that STATE HOMES provisions constituting collections of this final rule would not have a information, at 38 CFR 59.20, under the significant economic impact on a ■ 1. Revise the authority citation for part provisions of the Paperwork Reduction substantial number of small entities as 59 to read as follows: Act (44 U.S.C. 3501 et seq.), no new or they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601–612. The Authority: 38 U.S.C. 101, 501, 1710, 1742, revised collections of information are 8105, 8131–8137. associated with this rule. The rule affects States and has no impact on ■ information collection requirements for any small entities. Therefore, pursuant 2. Amend § 59.20 by: ■ § 59.20 are currently approved by OMB to 5 U.S.C. 605(b), this amendment is a. Revising paragraph (c). ■ b. Removing ‘‘August’’ from paragraph and have been assigned OMB control exempt from the initial and final (d) and adding, in its place, ‘‘April’’. number 2900–0661. regulatory flexibility analysis requirements of sections 603 and 604. ■ c. Adding an information collection Executive Orders 12866 and 13563 approval parenthetical after the Catalog of Federal Domestic Assistance authority citation at the end of the Executive Orders 12866 and 13563 The Catalog of Federal Domestic section. direct agencies to assess the costs and Assistance program numbers and titles The revision and addition read as benefits of available regulatory for this rule are as follows: 64.005, follows: alternatives and, when regulation is Grants to States for Construction of State § 59.20 Initial application requirements. necessary, to select regulatory Home Facilities; 64.007, Blind approaches that maximize net benefits * * * * * Rehabilitation Centers; 64.008, Veterans (c) The items requested under (including potential economic, Domiciliary Care; 64.009, Veterans environmental, public health and safety paragraph (a) of this section must be Medical Care Benefits; 64.010, Veterans received by VA no later than April 15 effects, and other advantages; Nursing Home Care; 64.014, Veterans distributive impacts; and equity). in order for VA to include the State Domiciliary Care; 64.015, Veterans application on the priority list for the Executive Order 13563 (Improving State Nursing Home Care; 64.018, Regulation and Regulatory Review) award of grants during the next fiscal Sharing Specialized Medical Resources; year. See § 59.50, Priority List. emphasizes the importance of 64.019, Veterans Rehabilitation Alcohol quantifying both costs and benefits, and Drug Dependence; 64.022, Veterans * * * * * reducing costs, harmonizing rules, and Home Based Primary Care; and 64.024, (The Office of Management and Budget promoting flexibility. Executive Order VA Homeless Providers Grant and Per has approved the information collection 12866 (Regulatory Planning and Diem Program. requirements in this section under Review) defines a ‘‘significant control number 2900–0661) Signing Authority regulatory action,’’ which requires ■ 3. Amend § 59.50 by removing review by the Office of Management and The Secretary of Veterans Affairs, or ‘‘August’’ from the introductory text of Budget (OMB), as ‘‘any regulatory action designee, approved this document and paragraph (a) and adding, in its place, that is likely to result in a rule that may: authorized the undersigned to sign and ‘‘April’’. (1) Have an annual effect on the submit the document to the Office of the ■ 4. Amend § 59.70 by removing economy of $100 million or more or Federal Register for publication ‘‘August 15’’ from paragraph (b) and adversely affect in a material way the electronically as an official document of adding, in its place, ‘‘August 1’’. economy, a sector of the economy, the Department of Veterans Affairs. John [FR Doc. 2012–4234 Filed 2–22–12; 8:45 am] productivity, competition, jobs, the . Gingrich, Chief of Staff, Department BILLING CODE 8320–01–P environment, public health or safety, or of Veterans Affairs, approved this State, local, or tribal governments or document on November 14, 2011, for communities; (2) Create a serious publication. GENERAL SERVICES inconsistency or otherwise interfere List of Subjects in 38 CFR Part 59 ADMINISTRATION with an action taken or planned by another agency; (3) Materially alter the Administrative practice and 48 CFR Parts 519 and 552 budgetary impact of entitlements, procedure; Alcohol abuse; Alcoholism; [GSAR Amendment 2012–02; GSAR Case grants, user fees, or loan programs or the Claims; Day care; Dental health; Drug 2011–G502; (Change 54) Docket 2012–0003, rights and obligations of recipients abuse; Government contracts; Grant Sequence 1] thereof; or (4) Raise novel legal or policy programs—health; Grant programs— RIN 3090–AJ24 issues arising out of legal mandates, the veterans; Health care; Health facilities; President’s priorities, or the principles Health professions; Health records; General Services Administration set forth in this Executive Order.’’ Homeless; Mental health programs; Acquisition Regulation; Acquisition- Nursing homes; Philippines, Reporting Related Thresholds The economic, interagency, and recordkeeping requirements; budgetary, legal, and policy Veterans. AGENCIES: Office of Acquisition Policy, implications of this regulatory action General Services Administration (GSA). Dated: February 17, 2012. have been examined and it has been ACTION: Final rule. determined to be a significant regulatory Robert C. McFetridge, action under Executive Order 12866 Director of Regulation Policy and SUMMARY: GSA is issuing a final rule because it is likely to result in a rule that Management, Office of the General Counsel, amending the General Services Department of Veterans Affairs. may raise novel legal or policy issues Administration Acquisition Regulation arising out of legal mandates, the For the reasons set forth in the (GSAR) to update the acquisition-related President’s priorities, or the principles preamble, VA amends 38 CFR part 59 as thresholds in two GSAR clauses. set forth in the Executive Order. follows: DATES: Effective Date: March 26, 2012.

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FOR FURTHER INFORMATION CONTACT: Mr. III. Regulatory Flexibility Act PART 552—SOLICITATION Karlos Morgan, Procurement Analyst, at PROVISIONS AND CONTRACT The General Services Administration (202) 501–2364, for clarification of CLAUSES certify that this final rule will not have content. For information pertaining to a significant economic impact on a status or publication schedules, contact ■ 3. The authority citation for 48 CFR substantial number of small entities part 552 continues to read as follows: the Regulatory Secretariat at (202) 501– within the meaning of the Regulatory 4755. Please cite GSAR Amendment Flexibility Act, 5 U.S.C. 601, et seq., Authority: 40 U.S.C. 121(c). 2012–02, GSAR Case 2011–G502. because FAR Case 2008–024, which ■ 4. Amend section 552.219–71 by SUPPLEMENTARY INFORMATION: addresses the acquisition-related revising the date of the provision; and thresholds, was published in the I. Background by removing from the introductory text Federal Register at 75 FR 53129, August ‘‘$500,000 ($1,000,000’’ and adding The General Services Administration 30, 2010, with an effective date of ‘‘$650,000 ($1,500,000’’ in its place. The is amending the GSAR to comply with October 1, 2010. Further, Acquisition revised text reads as follows: Letter MV–11–01, Adjustment of GSAM changes made to acquisition-related Acquisition-Related Thresholds due to 552.219–71 Notice to Offerors of thresholds by Federal Acquisition Federal Acquisition Circular 2005–45 Subcontracting Plan Requirements. Circular 2005–45 (Federal Acquisition (Item I, Inflation Adjustment of * * * * * Regulation (FAR) Case 2008–024), Acquisition-Related Thresholds), was published in the Federal Register at 75 Notice to Offereors of Subcontracting effective immediately upon the Plan Requirements (MAR 2012) FR 53129, August 30, 2010, with an publishing of Acquisition Letter effective date of October 1, 2010. FAR (October 8, 2010). All other revisions to * * * * * Case 2008–024 implements Section 807 the GSAM are non-regulatory. ■ 5. Amend section 552.219–72 by of the National Defense Authorization IV. Paperwork Reduction Act revising the date of the provision; and Act for Fiscal Year 2005 (Pub. L. 108– removing from the introductory text 375). Section 807 provides for The rule does not contain any ‘‘$500,000 ($1,000,000’’ and adding adjustment every 5 years of acquisition- information collection requirements that ‘‘$650,000 ($1,500,000’’ in its place. The related thresholds, except for Davis- require the approval of the Office of revised text reads as follows: Bacon Act, Service Contract Act, and Management and Budget under the trade agreements thresholds. Paperwork Reduction Act (44 U.S.C. 552.219–72 Preparation, Submission, and Negotiation of Subcontracting Plans. As a result of changes made to the chapter 35). acquisition-related thresholds, the * * * * * List of Subjects in 48 CFR Parts 519 and GSAR clause at 552.219–71, Notice to 552 Preparation, Submission, and Offerors of Subcontracting Plan Negotiation of Subcontracting Plans Requirements, is revised by removing Government procurement. (MAR 2012) ‘‘$500,000’’ and ‘‘$1,000,000’’ and Dated: February 16, 2011. replacing the GSAR text with * * * * * Joseph A. Neurauter, ‘‘$650,000’’ and ‘‘$1,500,000’’, ■ 6. Amend section 552.219–76 by Senior Procurement Executive, Office of respectively. The GSAR clause at revising the date of the clause; and Acquisition Policy, General Services removing from paragraph (f) 552.219–72, Preparation, Submission, Administration. and Negotiation of Subcontracting ‘‘519.7011(j)’’ and adding ‘‘519.7010(j)’’ Therefore, GSA amends 48 CFR parts Plans, is revised by removing in its place. The revised text reads as 519 and 552 as set forth below: ‘‘$500,000’’ and ‘‘$1,000,000’’ and follows: replacing the GSAR text with PART 519—SMALL BUSINESS 552.219–76 Mentor Requirements and ‘‘$650,000’’ and ‘‘$1,500,000’’, PROGRAMS Evaluation. respectively. * * * * * ■ II. Executive Orders 12866 and 13563 1. The authority citation for 48 CFR part 519 is revised to read as follows: Mentor Requirements and Evaluation (MAR 2012) Executive Orders (E.O.s) 12866 and Authority: 40 U.S.C. 121(c). 13563 direct agencies to assess all costs * * * * * ■ and benefits of available regulatory 2. Amend section 519.870–8 by [FR Doc. 2012–4229 Filed 2–22–12; 8:45 am] revising paragraph (a)(3) to read as alternatives and, if regulation is BILLING CODE 6820–61–P necessary, to select regulatory follows: approaches that maximize net benefits 519.870–8 Contract clauses. (including potential economic, (a) * * * DEPARTMENT OF TRANSPORTATION environmental, public health and safety effects, distributive impacts, and (3) Insert the clause at FAR 52.219– Pipeline and Hazardous Materials equity). E.O. 13563 emphasizes the 18, Notification of Competition Limited Safety Administration importance of quantifying both costs to Eligible 8(a) Concerns. Substitute the and benefits, of reducing costs, of following paragraph for paragraph (c) of 49 CFR Part 199 harmonizing rules, and of promoting the clause. Add the word ‘‘Deviation’’ at flexibility. This is not a significant the end of the clause title. [Docket No. PHMSA–2011–0335] regulatory action and, therefore, was not (c) Any award resulting from this solicitation will be made directly by the Pipeline Safety: Post Accident Drug subject to review under Section 6(b) of and Alcohol Testing E.O. 12866, Regulatory Planning and Contracting Officer to the successful 8(a) offeror selected through the evaluation AGENCY: Review, dated September 30, 1993. This criteria set forth in this solicitation. Pipeline and Hazardous rule is not a major rule under 5 U.S.C. Materials Safety Administration 804. * * * * * (PHMSA); DOT.

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ACTION: Notice of Issuance of Advisory Subject: Post-Accident Drug and • Under § 199.225(a), if an operator Bulletin. Alcohol Testing. does not complete post-accident alcohol Advisory: ‘‘The need to conduct post- testing of covered employees whose SUMMARY: PHMSA regulations in Part accident drug and alcohol testing of all performance cannot be completely 199 require pipeline operators and potentially involved personnel despite discounted as a contributing factor to operators of Liquefied Natural Gas uncertainty about the circumstances of the accident within two hours of the (LNG) facilities to conduct post-accident the accident’’ is an important reminder accident, the operator must prepare and drug and alcohol tests of covered and recommendation in the final report employees. Within the mandated maintain on file a record stating the of the NTSB—Pacific Gas and Electric reasons the test was not promptly timelines after a reportable pipeline Company Natural Gas Transmission administered. If post-accident alcohol accident or incident, operators must Pipeline Rupture and Fire, San Bruno, testing is not administered within eight drug and alcohol test each covered California, September 9, 2010, Pipeline hours following the accident, the employee whose performance either Accident Report [NTSB/PAR–11/01; contributed to the accident or cannot be Washington, DC]. The term ‘‘accident’’ operator must cease attempts to completely discounted as a contributing in Part 199 includes both ‘‘incidents’’ administer an alcohol test and must factor to the accident or incident. reportable under Part 191 and state in the record the reasons for not Operators must make the determination ‘‘accidents’’ reportable under Part 195. administering the test. Covered of employee contribution to the accident Covered employees include both employees must remain available for or incident promptly to meet the operator employees and contractor post-accident testing, but emergency timelines for testing required by the employees performing operations, response or medical care of the regulations. This was further maintenance, or emergency response employee are never to be delayed for emphasized by the National functions. Operators and contractors are alcohol testing. Transportation Safety Board (NTSB) in encouraged to review and update, where • Under § 199.221, each operator its report of the September 9, 2010, necessary, plans and procedures incident in San Bruno, California. shall prohibit a covered employee who governing post-accident substance has actual knowledge of an accident in DATES: February 23, 2012. abuse/misuse testing and train all those which his or her performance of covered FOR FURTHER INFORMATION CONTACT: involved with ensuring that such testing functions has not been discounted by Stanley Kastanas by phone at 202–550– is performed promptly and in an the operator as a contributing factor to 0629 or by email at effective manner. [email protected], regarding the the accident from using alcohol for eight Compliance Reminder subject matter of this advisory bulletin, hours following the accident, unless he or the Dockets Unit, 202–366–4453, for Operators are reminded that covered or she has been given a post-accident copies of this advisory bulletin or other functions encompass a broad range of test under § 199.225(a), or the operator material in the docket. All materials in employee and contractor positions, has determined that the employee’s this docket may be accessed including, but not limited to, contract performance could not have contributed electronically at http:// emergency responders, pressure control to the accident. www.regulations.gov/search/Regs/ technicians, temp-agency covered • Under § 199.103(a) an operator may home.html#home. General information employees, and control room operators. not knowingly use as an employee any about the PHMSA Office of Pipeline If a covered employee’s performance person who (1) Fails a drug test required cannot be completely discounted as a Safety (OPS) can be obtained by by this part and the Medical Review contributing factor to the accident or accessing OPS’s Internet home page at Officer makes a determination under http://www.phmsa.dot.gov/pipeline. incident, the employee must be tested DOT Procedures Part 40; or (2) refuses SUPPLEMENTARY INFORMATION: for the potential substance abuse or misuse of both drugs and alcohol. In to take a drug test required by this part. I. Background order to meet the testing timelines, do • Under § 199.223, each operator On September 9, 2010, a 30-inch- not delay testing in order to determine shall require a covered employee to diameter segment of an intrastate the circumstances surrounding the submit to a post-accident alcohol test natural gas transmission pipeline owned accident or incident. However, the required under § 199.225(a). No operator and operated by the Pacific Gas and accident or incident circumstances and shall permit an employee who refuses to Electric Company ruptured in a events must be assessed promptly and submit to such a test to perform or residential area in San Bruno, documented, especially the reasons for continue to perform covered functions. California. As a result of an NTSB not drug or alcohol testing an accident- • Under § 199.233, no operator shall investigation of this event, one of its related covered employee. recommendations to PHMSA was to permit any covered employee to Key Regulatory Sections Applicable to issue guidance clarifying the need to perform covered functions if the Post-Accident Drug and Alcohol Testing conduct post-accident drug and alcohol employee has engaged in conduct testing of all potentially involved The following are key regulatory prohibited by §§ 199.215 through personnel despite uncertainty about the sections addressing post-accident drug 199.223. circumstances of the accident. This and alcohol testing that should be Issued in Washington, DC, February 15, advisory bulletin fulfills the NTSB reviewed, along with other applicable 2012. sections of Part 199: recommendation and PHMSA’s ongoing Jeffrey D. Wiese, commitment to pipeline safety. • Under § 199.105, post-accident drug tests of covered employees whose Associate Administrator for Pipeline Safety. II. Advisory Bulletin (ADB–2012–02) performance cannot be completely [FR Doc. 2012–4157 Filed 2–22–12; 8:45 am] To: Operators of Gas, Hazardous discounted as a contributing factor to BILLING CODE 4910–60–P Liquid, and Carbon Dioxide Pipelines the accident must be completed no later and Liquefied Natural Gas Facilities. than 32 hours after the accident.

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DEPARTMENT OF COMMERCE herring vessel permit holders from Authority: 16 U.S.C. 1801 et seq. fishing for, catching, possessing, Dated: February 17, 2012. National Oceanic and Atmospheric transferring, or landing more than 2,000 Carrie Selberg, Administration lb (907.2 kg) of herring per calendar day Acting Director, Office of Sustainable in or from the specified management Fisheries, National Marine Fisheries Service. 50 CFR Part 648 area for the remainder of the closure [FR Doc. 2012–4243 Filed 2–17–12; 4:15 pm] period. Transiting of Area 2 with more [Docket No. 0907301205–0289–02] BILLING CODE 3510–22–P than 2,000 lb (907.2 kg) of herring on RIN 0648–XB001 board is allowed under the conditions described below. Fisheries of the Northeastern United DEPARTMENT OF COMMERCE States; Atlantic Herring Fishery; Sub- The Regional Administrator has determined, based upon dealer reports National Oceanic and Atmospheric ACL (Annual Catch Limit) Harvested Administration for Management Area 2 and other available information that 95 percent of the total herring sub-ACL AGENCY: National Marine Fisheries allocated to Area 2 for 2012 is projected 50 CFR Part 679 Service (NMFS), National Oceanic and to be harvested. Therefore, effective [Docket No. 101126521–0640–02] Atmospheric Administration (NOAA), 0001 hr local time, February 20, 2012, Commerce. federally permitted vessels may not fish RIN 0648–XB028 for, catch, possess, transfer, or land ACTION: Temporary rule; closure. Fisheries of the Exclusive Economic more than 2,000 lb (907.2 kg) of herring Zone Off Alaska; Pacific Cod for SUMMARY: NMFS is closing the directed in or from Area 2 per calendar day American Fisheries Act Catcher/ herring fishery in management area 2, through December 31, 2012. Vessels Processors Using Trawl Gear in the because 95 percent of the catch limit for may transit through Area 2 with more Bering Sea and Aleutian Islands that area has been caught. Effective 0001 than 2,000 lb (907.2 kg) of herring on Management Area hr, February 20, 2012, federally board, provided such herring was not permitted vessels may not fish for, caught in Area 2 and provided all AGENCY: National Marine Fisheries catch, possess, transfer, or land more fishing gear aboard is stowed and not Service (NMFS), National Oceanic and than 2,000 lb (907.2 kg) of Atlantic available for immediate use as required Atmospheric Administration (NOAA), herring (herring) in or from Management by § 648.23(b). Effective 0001 hr, Commerce. Area 2 per calendar day until January 1, February 20, 2012, federally permitted ACTION: Temporary rule; closure. 2013, when the 2013 allocation for Area dealers are also advised that they may 2 becomes available. not purchase herring from federally SUMMARY: NMFS is prohibiting directed DATES: Effective 0001 hr local time, permitted herring vessels that harvest fishing for Pacific cod by American February 20, 2012, through December more than 2,000 lb (907.2 kg) of herring Fisheries Act (AFA) trawl catcher/ 31, 2012. from Area 2 through 2400 hr local time, processors in the Bering Sea and FOR FURTHER INFORMATION CONTACT: December 31, 2012. Aleutian Islands management area Lindsey Feldman, Fishery Management (BSAI). This action is necessary to Classification Specialist, (978) 675–2079. prevent exceeding the A season SUPPLEMENTARY INFORMATION: This action is required by 50 CFR part allowance of the 2012 Pacific cod total Regulations governing the herring 648 and is exempt from review under allowable catch (TAC) specified for AFA fishery are found at 50 CFR part 648. Executive Order 12866. trawl catcher-processors in the BSAI. The regulations require annual NMFS finds good cause pursuant to 5 DATES: Effective 1200 hrs, Alaska local specification of the overfishing limit, U.S.C. 553(b)(B) to waive prior notice time (A.l..), February 17, 2012, through acceptable biological catch, annual and the opportunity for public comment 1200 hrs, A.l.t., April 1, 2012. catch limit (ACL), optimum yield, because it would be contrary to the FOR FURTHER INFORMATION CONTACT: Josh domestic harvest and processing, U.S. public interest and impracticable. This Keaton, 907–586–7228. at-sea processing, border transfer, and action closes the herring fishery for SUPPLEMENTARY INFORMATION: NMFS sub-ACLs for each management area. Management Area 2 until January 1, manages the groundfish fishery in the The 2012 Domestic Annual Harvest is 2013, under current regulations. The BSAI exclusive economic zone 91,200 metric tons (mt); the 2012 sub- regulations at § 648.201(a) require such according to the Fishery Management ACL allocated to Area 2 is 22,146 mt, action to ensure that herring vessels do Plan for Groundfish of the Bering Sea and 0 mt of the sub-ACL is set aside for not exceed the 2012 sub-ACL allocated and Aleutian Islands Management Area research (75 FR 48874, August 12, to Area 2. The herring fishery opened (FMP) prepared by the North Pacific 2010). for the 2012 fishing year on January 1, Fishery Management Council under Section 648.201 requires the 2012. Data indicating the herring fleet authority of the Magnuson-Stevens Administrator, Northeast Region, NMFS will have landed at least 95 percent of Fishery Conservation and Management (Regional Administrator), to monitor the the 2012 sub-ACL allocated to Area 2 Act. Regulations governing fishing by herring fishery in each of the four have only recently become available. If U.S. vessels in accordance with the FMP management areas designated in the implementation of this closure is appear at subpart H of 50 CFR part 600 Fishery Management Plan for the delayed to solicit prior public comment, and 50 CFR part 679. herring fishery and, based on dealer the sub-ACL for Area 2 for this fishing The A season allowance of the 2012 reports, state data, and other available year can be exceeded, thereby Pacific cod TAC specified for AFA trawl information, to determine when the undermining the conservation catcher-processors in the BSAI is 4,021 harvest of herring is projected to reach objectives of the FMP. NMFS further metric tons as established by the final 95 percent of the management area sub- finds, pursuant to 5 U.S.C 553(d)(3), 2011 and 2012 harvest specifications for ACL. When such a determination is good cause to waive the 30-day delayed groundfish in the BSAI (76 FR 11139, made, NMFS must publish notification effectiveness period for the reasons March 1, 2011) and inseason adjustment in the Federal Register and prohibit stated above. (76 FR 81875, December 29, 2011).

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In accordance with § 679.20(d)(1)(i) DEPARTMENT OF COMMERCE Council prepared the FMP, and NMFS and (d)(1)(ii)(B), the Administrator, approved it under the Magnuson- Alaska Region, NMFS (Regional National Oceanic and Atmospheric Stevens Act. General regulations Administrator), has determined that the Administration governing U.S. fisheries also appear at A season allowance of the 2012 Pacific 50 CFR part 600. cod TAC allocated to AFA trawl catcher 50 CFR Part 679 The FMP and its implementing regulations require NMFS, after processors in the BSAI will be taken as [Docket No. 111213751–2102–02] incidental catch in the directed fishing consultation with the Council, to for other species. Therefore, the RIN 0648–XA758 specify the total allowable catch (TAC) Regional Administrator is establishing a for each target species; the sum TAC for Fisheries of the Exclusive Economic all groundfish species must be within directed fishing allowance for Pacific Zone Off Alaska; Bering Sea and cod allocated to AFA trawl catcher the optimum yield (OY) range of 1.4 Aleutian Islands; Final 2012 and 2013 million to 2.0 million metric tons (mt) processors in the BSAI of 0 mt. In Harvest Specifications for Groundfish accordance with § 679.20(d)(1)(iii), the (see § 679.20(a)(1)(i)). This final rule specifies the TAC at 2.0 million mt for Regional Administrator finds that this AGENCY: National Marine Fisheries both 2012 and 2013. NMFS also must directed fishing allowance has been Service (NMFS), National Oceanic and specify apportionments of TACs, reached. Consequently, NMFS is Atmospheric Administration (NOAA), prohibited species catch (PSC) prohibiting directed fishing for Pacific Commerce. allowances, and prohibited species cod by AFA trawl catcher processors in ACTION: Final rule; closures. quota (PSQ) reserves established by the BSAI. § 679.21; seasonal allowances of SUMMARY: NMFS announces final 2012 After the effective date of this closure pollock, Pacific cod, and Atka mackerel and 2013 harvest specifications and the maximum retainable amounts at TAC; Amendment 80 allocations; and prohibited species catch allowances for § 679.20(e) and (f) apply at any time Community Development Quota (CDQ) the groundfish fishery of the Bering Sea during a trip. reserve amounts established by and Aleutian Islands management area § 679.20(b)(1)(ii). The final harvest (BSAI). This action is necessary to Classification specifications set forth in Tables 1 establish harvest limits for groundfish through 16 of this action satisfy these This action responds to the best during the 2012 and 2013 fishing years, requirements. available information recently obtained and to accomplish the goals and from the fishery. The Assistant Section 679.20(c)(3)(i) further requires objectives of the Fishery Management NMFS to consider public comment on Administrator for Fisheries, NOAA, Plan for Groundfish of the BSAI (FMP). (AA), finds good cause to waive the the proposed annual TACs (and The intended effect of this action is to apportionments thereof) and PSC requirement to provide prior notice and conserve and manage the groundfish allowances, and to publish final harvest opportunity for public comment resources in the BSAI in accordance specifications in the Federal Register. pursuant to the authority set forth at 5 with the Magnuson-Stevens Fishery The proposed 2012 and 2013 harvest U.S.C. 553(b)(B) as such requirement is Conservation and Management Act specifications and PSC allowances for impracticable and contrary to the public (Magnuson-Stevens Act). the groundfish fishery of the BSAI were interest. This requirement is DATES: Effective from 1200 hrs, Alaska published in the Federal Register on impracticable and contrary to the public local time (A.l.t.), February 23, 2012, December 27, 2011 (76 FR 80782). interest as it would prevent NMFS from through 2400 hrs, A.l.t., December 31, Comments were invited and accepted responding to the most recent fisheries 2013. through January 26, 2012. NMFS data in a timely fashion and would received 1 letter with 1 comment on the delay the closure of Pacific cod by AFA ADDRESSES: Electronic copies of the Final Alaska Groundfish Harvest proposed harvest specifications. This trawl catcher/processors in the BSAI. comment is summarized and responded NMFS was unable to publish a notice Specifications Environmental Impact Statement (EIS), Record of Decision to in the ‘‘Response to Comments’’ providing time for public comment section of this rule. NMFS consulted because the most recent, relevant data (ROD), Supplementary Information Report (SIR) to the EIS, and the Final with the Council on the final 2012 and only became available as of February 16, 2013 harvest specifications during the 2012. Regulatory Flexibility Analysis (FRFA), prepared for this action are available December 2011 Council meeting in The AA also finds good cause to from http://alaskafisheries.noaa.gov. Anchorage, AK. After considering waive the 30-day delay in the effective The final 2011 Stock Assessment and public comments, as well as biological date of this action under 5 U.S.C. Fishery Evaluation (SAFE) report for the and economic data that were available 553(d)(3). This finding is based upon groundfish resources of the BSAI, dated at the Council’s December meeting, the reasons provided above for waiver of November 2011 and SAFE reports for NMFS is implementing the final 2012 prior notice and opportunity for public previous years, are available from the and 2013 harvest specifications as comment. North Pacific Fishery Management recommended by the Council. This action is required by § 679.20 Council (Council) at 605 West 4th Acceptable Biological Catch (ABC) and and is exempt from review under Avenue, Suite 306, Anchorage, AK TAC Harvest Specifications Executive Order 12866. 99510–2252, phone 907–271–2809, or The final ABC levels for Alaska from the Council’s Web site at http:// Authority: 16 U.S.C. 1801 et seq. groundfish are based on the best alaskafisheries.noaa.gov/npfmc. available biological and socioeconomic Dated: February 17, 2012. FOR FURTHER INFORMATION CONTACT: information, including projected Carrie Selberg, Steve Whitney, 907–586–7228. biomass trends, information on assumed Acting Director, Office of Sustainable SUPPLEMENTARY INFORMATION: Federal distribution of stock biomass, and Fisheries, National Marine Fisheries Service. regulations at 50 CFR part 679 revised technical methods used to [FR Doc. 2012–4245 Filed 2–17–12; 4:15 pm] implement the FMP and govern the calculate stock biomass. In general, the BILLING CODE 3510–22–P groundfish fisheries in the BSAI. The development of ABCs and overfishing

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levels (OFLs) involves sophisticated that the Council’s recommended OFLs, This recommendation resulted in an statistical analyses of fish populations. ABCs, and TACs are consistent with the ABC sum total for all BSAI groundfish The FMP specifies a series of six tiers biological condition of groundfish species that exceeds 2 million mt for to define OFL and ABC amounts based stocks as described in the 2011 SAFE both 2012 and 2013. Based on the SSC on the level of reliable information report that was approved by the ABC recommendations and the 2011 available to fishery scientists. Tier 1 Council. SAFE reports, the AP recommended represents the highest level of raising the TACs for more economically information quality available while Tier Other Actions Potentially Affecting the 2012 and 2013 Harvest Specifications valuable species that have increasing 6 represents the lowest. biomasses, such as Pacific cod and In December 2011, the Scientific and The Council is currently considering Greenland turbot. Conversely, the SSC Statistical Committee (SSC), Advisory implementing management measures in reduced the OFL and ABC of Bering Sea Panel (AP), and Council reviewed the event that Pacific cod is split from pollock from the proposed OFL and current biological information about the a BSAI-wide fishery into separate OFLs, ABC, and these reductions led to the condition of the BSAI groundfish stocks. ABCs, and TACs for the Bering Sea largest decrease in TAC in terms of The Council’s Plan Team compiled and subarea and the Aleutian Island subarea. tonnage. In terms of percentage change presented this information in the 2011 This split depends on NMFS developing from the proposed TACs, octopuses and SAFE report for the BSAI groundfish an age-structured model for the Aleutian sharks had the largest increases in TAC. fisheries, dated November 2011. The Islands Pacific cod stock assessment This is due to model changes for the SAFE report contains a review of the that will be reviewed by the Plan Team calculation of octopuses OFL and ABC, latest scientific analyses and estimates and SSC in 2012 or 2013. This split and recommendations by the AP and of each species’ biomass and other could impact the OFLs, ABCs, and the Council of TACs that are more biological parameters, as well as TACs for Pacific cod on Table 1 for realistic of incidental harvest of these summaries of the available information 2013. species in other fisheries. The Bogoslof on the BSAI ecosystem and the pollock TAC also had a large percentage economic condition of groundfish Changes From the Proposed 2012 and fisheries off Alaska. NMFS notified the 2013 Harvest Specifications for the increase, because the SSC discontinued public and asked for review of the SAFE BSAI the target biomass of 2 million mt and report in the notice of proposed harvest In October 2011, the Council adopted a traditional OFL and ABC specifications; the report is still proposed its recommendations for the estimate under the Tier 5 approach of available (see ADDRESSES). From these 2012 and 2013 harvest specifications (76 the FMP. The Council recommended a data and analyses, the Plan Team FR 80782, December 27, 2011), based TAC to account for incidental catch in estimated an OFL and ABC for each largely on information contained in the other fisheries. However, under species or species category. 2010 SAFE report for the BSAI § 679.22(a)(7)(i)(B), directed fishing for In December 2011, the SSC, AP, and groundfish fisheries. Through the pollock in the Bogoslof area is Council reviewed the Plan Team’s proposed harvest specifications, NMFS prohibited, so changes in TAC will have recommendations. The SSC concurred notified the public that these harvest little effect upon fisheries. The changes with the Plan Team’s recommendations, specifications could change, as the to TAC between the proposed and final and the Council adopted the OFL and Council would consider information harvest specifications are based on the ABC amounts recommended by the SSC contained in the 2011 SAFE report, most recent scientific and economic (Table 1). The final TAC recommendations from the SSC, Plan information and are consistent with the recommendations were based on the Team, and AP committees, and public FMP and regulatory obligations and ABCs as adjusted for other biological testimony when making its harvest strategy as described in the and socioeconomic considerations, recommendations for final harvest proposed harvest specifications. These including maintaining the sum of the specification levels at the December changes are compared in the following TACs within the required OY range of Council meeting. NMFS further notified table. 1.4 million to 2.0 million mt. As the public that, as required by the FMP Table 1 lists the Council’s required by annual catch limit rules for and its implementing regulations, the recommended final 2012 and 2013 OFL, all fisheries (74 FR 3178, January 16, sum of the TACs must be within the OY ABC, TAC, initial TAC (ITAC), and CDQ 2009), none of the Council’s range of 1.4 million and 2.0 million mt. reserve amounts of the BSAI groundfish. recommended TACs for 2012 or 2013 Information contained in the 2011 NMFS concurs in these exceeds the final 2012 or 2013 ABCs for SAFE reports indicates biomass changes recommendations. The final 2012 and any species category. The final 2012 and for several groundfish species from the 2013 TAC recommendations for the 2013 harvest specifications approved by 2010 SAFE reports. At the December BSAI are within the OY range the Secretary of Commerce are 2011 Council meeting, the SSC established for the BSAI and do not unchanged from those recommended by recommended the ABCs for many exceed the ABC for any single species the Council and are consistent with the species in 2012 and 2013 based on the or complex. The apportionment of TAC preferred harvest strategy alternative in best and most recent information amounts among fisheries and seasons is the EIS (see ADDRESSES). NMFS finds contained in the 2011 SAFE reports. discussed below.

COMPARISON OF FINAL 2012 AND 2013 WITH PROPOSED 2012 AND 2013 TOTAL ALLOWABLE CATCH IN THE BSAI [Amounts are in metric tons]

2012 2013 1 2012 proposed difference 2013 proposed difference Species Area 2012 final TAC TAC from 2013 final TAC TAC from proposed proposed

Pollock ...... BS ...... 1,200,000 1,253,658 ¥53,658 1,201,900 1,253,658 ¥51,758 AI ...... 19,000 19,000 0 19,000 19,000 0

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COMPARISON OF FINAL 2012 AND 2013 WITH PROPOSED 2012 AND 2013 TOTAL ALLOWABLE CATCH IN THE BSAI— Continued [Amounts are in metric tons]

2012 2013 1 2012 proposed difference 2013 proposed difference Species Area 2012 final TAC TAC from 2013 final TAC TAC from proposed proposed

Bogoslof ... 500 150 350 500 150 350 Pacific cod ...... BSAI ...... 261,000 229,608 31,392 262,900 229,608 33,292 Sablefish ...... BS ...... 2,230 2,610 ¥380 2,200 2,610 ¥410 AI ...... 2,050 1,740 310 2,020 1,740 280 Atka mackerel ...... EAI/BS ..... 38,500 36,800 1,700 31,700 36,800 ¥5,100 CAI ...... 10,763 10,293 470 8,883 10,293 ¥1,410 WAI ...... 1,500 1,500 0 1,500 1,500 0 Yellowfin sole...... BSAI ...... 202,000 197,660 4,340 203,900 197,660 6,240 Rock sole ...... BSAI ...... 87,000 85,000 2,000 87,000 85,000 2,000 Greenland turbot...... BS ...... 6,230 3,500 2,730 6,010 3,500 2,510 AI ...... 2,430 1,450 980 2,020 1,450 570 Arrowtooth flounder ...... BSAI ...... 25,000 25,900 ¥900 25,000 25,900 ¥900 Kamchatka flounder ...... BSAI ...... 17,700 17,700 0 17,700 17,700 0 Flathead sole ...... BSAI ...... 34,134 41,548 ¥7,414 34,134 41,548 ¥7,414 Other flatfish ...... BSAI ...... 3,200 3,000 200 3,200 3,000 200 Alaska plaice...... BSAI ...... 24,000 16,000 8,000 24,000 16,000 8,000 Pacific ocean perch ...... BS ...... 5,710 5,710 0 6,540 5,710 830 EAI ...... 5,620 5,660 ¥40 6,440 5,660 780 CAI ...... 4,990 4,960 30 5,710 4,960 750 WAI ...... 8,380 8,370 10 9,610 8,370 1,240 Northern rockfish...... BSAI ...... 4,700 4,000 700 4,700 4,000 700 Shortraker rockfish...... BSAI ...... 393 393 0 393 393 0 Rougheye rockfish ...... BS/EAI ..... 231 240 ¥9 241 240 1 CAI/WAI ... 244 225 19 258 225 33 Other rockfish...... BS ...... 500 500 0 500 500 0 AI ...... 570 500 70 570 500 70 Squids ...... BSAI ...... 425 425 0 425 425 0 Skates ...... BSAI ...... 24,700 16,500 8,200 24,746 16,500 8,246 Sharks ...... BSAI ...... 200 50 150 200 50 150 Octopuses ...... BSAI ...... 900 150 750 900 150 750 Sculpins ...... BSAI ...... 5,200 5,200 0 5,200 5,200 0

Total ...... BSAI ...... 2,000,000 2,000,000 0 2,000,000 2,000,000 0 1 Bering Sea subarea (BS), Aleutian Islands subarea (AI), Bering Sea and Aleutian Islands management area (BSAI), Eastern Aleutian District (EAI), Central Aleutian District (CAI), and Western Aleutian District (WAI).

TABLE 1—FINAL 2012 AND 2013 OVERFISHING LEVEL (OFL), ACCEPTABLE BIOLOGICAL CATCH (ABC), TOTAL ALLOWABLE CATCH (TAC), INITIAL TAC (ITAC), AND CDQ RESERVE ALLOCATION OF GROUNDFISH IN THE BSAI 1 [Amounts are in metric tons]

2012 2013 Species Area OFL ABC TAC ITAC 2 CDQ 3 OFL ABC TAC ITAC 2 CDQ 3

Pollock 4 ...... BS ...... 2,474,000 1,220,000 1,200,000 1,080,000 120,000 2,840,000 1,360,000 1,201,900 1,081,710 120,190 AI ...... 39,600 32,500 19,000 17,100 1,900 42,900 35,200 19,000 17,100 1,900 Bogoslof ..... 22,000 16,500 500 500 0 22,000 16,500 500 500 0 Pacific cod 5 .. BSAI ...... 369,000 314,000 261,000 233,073 27,927 374,000 319,000 262,900 234,770 28,130 Sablefish ...... BS ...... 2,640 2,230 2,230 1,840 307 2,610 2,200 2,200 935 83 AI ...... 2,430 2,050 2,050 1,666 346 2,400 2,020 2,020 429 38 Atka mackerel BSAI...... 96,500 81,400 50,763 45,331 5,432 78,300 67,100 42,083 37,580 4,503 EAI/BS ...... n/a 38,500 38,500 34,381 4,120 n/a 31,700 31,700 28,308 3,392 CAI ...... n/a 22,900 10,763 9,611 1,152 n/a 18,900 8,883 7,933 950 WAI ...... n/a 20,000 1,500 1,340 161 n/a 16,500 1,500 1,340 161 Yellowfin sole BSAI...... 222,000 203,000 202,000 180,386 21,614 226,000 207,000 203,900 182,083 21,817 Rock sole...... BSAI ...... 231,000 208,000 87,000 77,691 9,309 217,000 196,000 87,000 77,691 9,309 Greenland BSAI ...... 11,700 9,660 8,660 7,361 n/a 9,700 8,030 8,030 6,826 n/a turbot. BS ...... n/a 7,230 6,230 5,296 667 n/a 6,010 6,010 5,109 643 AI ...... n/a 2,430 2,430 2,066 0 n/a 2,020 2,020 1,717 0 Arrowtooth BSAI ...... 181,000 150,000 25,000 21,250 2,675 186,000 152,000 25,000 21,250 2,675 flounder. Kamchatka BSAI ...... 24,800 18,600 17,700 15,045 0 24,800 18,600 17,700 15,045 0 flounder. Flathead sole BSAI...... 84,500 70,400 34,134 30,482 3,652 83,100 69,200 34,134 30,482 3,652 Other flatfish 6 BSAI ...... 17,100 12,700 3,200 2,720 0 17,100 12,700 3,200 2,720 0 Alaska plaice BSAI...... 64,600 53,400 24,000 20,400 0 65,000 54,000 24,000 20,400 0 Pacific ocean BSAI ...... 35,000 24,700 24,700 21,812 n/a 33,700 28,300 28,300 24,991 n/a perch.

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TABLE 1—FINAL 2012 AND 2013 OVERFISHING LEVEL (OFL), ACCEPTABLE BIOLOGICAL CATCH (ABC), TOTAL ALLOWABLE CATCH (TAC), INITIAL TAC (ITAC), AND CDQ RESERVE ALLOCATION OF GROUNDFISH IN THE BSAI 1—Continued [Amounts are in metric tons]

2012 2013 Species Area OFL ABC TAC ITAC 2 CDQ 3 OFL ABC TAC ITAC 2 CDQ 3

BS ...... n/a 5,710 5,710 4,854 0 n/a 6,540 6,540 5,559 0 EAI ...... n/a 5,620 5,620 5,019 601 n/a 6,440 6,440 5,751 689 CAI ...... n/a 4,990 4,990 4,456 534 n/a 5,710 5,710 5,099 611 WAI ...... n/a 8,380 8,380 7,483 897 n/a 9,610 9,610 8,582 1,028 Northern rock- BSAI ...... 10,500 8,610 4,700 3,995 0 10,400 8,490 4,700 3,995 0 fish. Shortraker BSAI ...... 524 393 393 334 0 524 393 393 334 0 rockfish. Rougheye BSAI ...... 576 475 475 404 0 605 499 499 424 0 rockfish. EBS/EAI ..... n/a 231 231 196 0 n/a 241 241 205 0 CAI/WAI ..... n/a 244 244 207 0 n/a 258 258 219 0 Other rock- BSAI ...... 1,700 1,280 1,070 910 0 1,700 1,280 1,070 910 0 fish 7. BS ...... n/a 710 500 425 0 n/a 710 500 425 0 AI ...... n/a 570 570 485 0 n/a 570 570 485 0 Squids ...... BSAI ...... 2,620 1,970 425 361 0 2,620 1,970 425 361 0 Skates ...... BSAI ...... 39,100 32,600 24,700 20,995 0 38,300 32,000 24,746 21,034 0 Sharks ...... BSAI ...... 1,360 1,020 200 170 0 1,360 1,020 200 170 0 Octopuses ..... BSAI ...... 3,450 2,590 900 765 0 3,450 2,590 900 765 0 Sculpins ...... BSAI ...... 58,300 43,700 5,200 4,420 0 58,300 43,700 5,200 4,420 0

Total ...... 3,996,000 2,511,778 2,000,000 1,789,010 195,860 4,341,869 2,639,792 2,000,000 1,786,924 195,269 1 These amounts apply to the entire BSAI management area unless otherwise specified. With the exception of pollock, and for the purpose of these harvest speci- fications, the Bering Sea (BS) subarea includes the Bogoslof District. 2 Except for pollock, the portion of the sablefish TAC allocated to hook-and-line and pot gear, and Amendment 80 species, 15 percent of each TAC is put into a re- serve. The ITAC for these species is the remainder of the TAC after the subtraction of these reserves. For pollock and Amendment 80 species, ITAC is the non-CDQ allocation of TAC (see footnotes 3 and 5). 3 For the Amendment 80 species (Atka mackerel, flathead sole, rock sole, yellowfin sole, Pacific cod, and Aleutian Islands Pacific ocean perch), 10.7 percent of the TAC is reserved for use by CDQ participants (see §§ 679.20(b)(1)(ii)(C) and 679.31). Twenty percent of the sablefish TAC allocated to hook-and-line gear or pot gear, 7.5 percent of the sablefish TAC allocated to trawl gear, and 10.7 percent of the TACs for Bering Sea Greenland turbot and arrowtooth flounder are reserved for use by CDQ participants (see § 679.20(b)(1)(ii)(B) and (D)). Aleutian Islands Greenland turbot, ‘‘other flatfish,’’ Alaska plaice, Bering Sea Pacific ocean perch, northern rockfish, shortraker rockfish, rougheye rockfish, ‘‘other rockfish,’’ squid, sculpins, sharks, skates, and octopuses are not allocated to the CDQ program. 4 Under § 679.20(a)(5)(i)(A)(1), the annual BS subarea pollock TAC after subtracting first for the CDQ directed fishing allowance (10 percent) and second for the in- cidental catch allowance (4.0 percent), is further allocated by sector for a directed pollock fishery as follows: inshore—50 percent; catcher/processor—40 percent; and motherships—10 percent. Under § 679.20(a)(5)(iii)(B)(2)(i) and (ii), the annual Aleutian Islands subarea pollock TAC, after subtracting first for the CDQ directed fishing allowance (10 percent) and second for the incidental catch allowance (1,600 mt) is allocated to the Aleut Corporation for a directed pollock fishery. 5 The Pacific cod TAC is reduced by 3 percent from the ABC to account for the State of Alaska’s (State) guideline harvest level in State waters of the Aleutian Is- lands subarea. 6 ‘‘Other flatfish’’ includes all flatfish species, except for halibut (a prohibited species), flathead sole, Greenland turbot, rock sole, yellowfin sole, arrowtooth flounder, Kamchatka flounder, and Alaska plaice. 7 ‘‘Other rockfish’’ includes all Sebastes and Sebastolobus species except for Pacific ocean perch, northern, dark, shortraker, and rougheye rockfish. Note: Regulatory areas and districts are defined at § 679.2 (BS = Bering Sea subarea, AI = Aleutian Islands subarea, EAI = Eastern Aleutian Islands district, CAI = Central Aleutian Islands district, WAI = Western Aleutian Islands district).

Groundfish Reserves and the Incidental mackerel, Aleutian Islands Pacific ocean to a high of 5 percent in 1999, with a Catch Allowance (ICA) for Pollock, perch, yellowfin sole, rock sole, flathead 13-year average of 3.2 percent. Pursuant Atka Mackerel, Flathead Sole, Rock sole, and Pacific cod to the CDQ to § 679.20(a)(5)(iii)(B)(2)(i) and (ii), Sole, Yellowfin Sole, and Aleutian reserves. Sections 679.20(a)(5)(i)(A) and NMFS establishes a pollock ICA of Islands Pacific Ocean Perch 679.31(a) also require that 10 percent of 1,600 mt of the AI subarea TAC after the BSAI pollock TACs be allocated to subtracting the 10 percent CDQ DFA. Section 679.20(b)(1)(i) requires NMFS the pollock CDQ directed fishing This allowance is based on NMFS’ to reserve 15 percent of the TAC for allowance (DFA). The entire Bogoslof examination of the pollock incidental each target species, except for pollock, District pollock TAC is allocated as an catch, including the incidental catch by the hook-and-line and pot gear ICA (see § 679.20(a)(5)(ii)). With the CDQ vessels, in target fisheries other allocation of sablefish, and the exception of the hook-and-line and pot than pollock from 2003 through 2011. Amendment 80 species, in a non- gear sablefish CDQ reserve, the During this 9-year period, the incidental specified reserve. Section regulations do not further apportion the catch of pollock ranged from a low of 5 679.20(b)(1)(ii)(B) requires that 20 CDQ allocations by gear. percent in 2006 to a high of 10 percent percent of the hook-and-line and pot Pursuant to § 679.20(a)(5)(i)(A)(1), in 2003, with a 9-year average of 7 gear allocation of sablefish be set aside NMFS allocates a pollock ICA of 3 percent. for the fixed gear sablefish CDQ reserve. percent of the BS subarea pollock TAC Pursuant to § 679.20(a)(8) and (10), Section 679.20(b)(1)(ii)(D) requires after subtracting the 10 percent CDQ NMFS allocates ICAs of 5,000 mt of NMFS to allocate 7.5 percent of the reserve. This allowance is based on flathead sole, 10,000 mt of rock sole, trawl gear allocations of sablefish and NMFS’ examination of the pollock 2,000 mt of yellowfin sole, 10 mt of 10.7 percent of the Bering Sea incidental catch, including the Western Aleutian District Pacific (WAI) Greenland turbot and arrowtooth incidental catch by CDQ vessels, in ocean perch, 75 mt of Central Aleutian flounder TACs to the respective CDQ target fisheries other than pollock from District (CAI) Pacific ocean perch, 100 reserves. Under section 1999 through 2011. During this 13-year mt of Eastern Aleutian District (EAI) 679.20(b)(1)(ii)(C), NMFS must allocate period, the pollock incidental catch Pacific ocean perch, 40 mt of WAI Atka 10.7 percent of the TACs for Atka ranged from a low of 2.4 percent in 2006 mackerel, 100 mt of CAI Atka mackerel,

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and 1,000 mt of EAI and BS subarea apportioned to a target species category accordance with § 679.20(b)(3), NMFS is Atka mackerel TAC after subtracting the during the year, providing that such apportioning the amounts shown in 10.7 percent CDQ reserve. These ICA apportionments do not result in Table 2 from the non-specified reserve allowances are based on NMFS’ overfishing (see § 679.20(b)(1)(i)). The to increase the ITAC for northern examination of the incidental catch in Regional Administrator has determined rockfish, shortraker rockfish, rougheye other target fisheries from 2003 through that the ITACs specified for the species rockfish, Bering Sea ‘‘other rockfish,’’ 2011. listed in Table 2 need to be skates, sharks, octopuses, and sculpins The regulations do not designate the supplemented from the non-specified by 15 percent of the TAC in 2012 and remainder of the non-specified reserve reserve because U.S. fishing vessels 2013. by species or species group. Any have demonstrated the capacity to catch amount of the reserve may be the full TAC allocations. Therefore, in

TABLE 2—FINAL 2012 AND 2013 APPORTIONMENT OF RESERVES TO ITAC CATEGORIES [Amounts are in metric tons]

2012 reserve 2012 final 2013 reserve 2013 final Species-area or subarea 2012 ITAC amount ITAC 2013 ITAC amount ITAC

Shortraker rockfish—BSAI...... 334 59 393 334 59 393 Rougheye rockfish—EBS/EAI ...... 196 35 231 205 36 241 Rougheye rockfish—CAI/WAI...... 207 37 244 219 39 258 Northern rockfish—BSAI...... 3,995 705 4,700 3,995 705 4,700 Other rockfish—Bering Sea subarea ...... 425 75 500 425 75 500 Skates—BSAI ...... 20,995 3,705 24,700 21,034 3,712 24,746 Sharks—BSAI ...... 170 30 200 170 30 200 Octopuses—BSAI ...... 765 135 900 765 135 900 Sculpins—BSAI ...... 4,420 780 5,200 4,420 780 5,200

Total ...... 31,508 5,560 37,068 31,567 5,571 37,138

Allocation of Pollock TAC Under the fishery is allocated to the B season. the Alaska Region Web site at http:// American Fisheries Act (AFA) Table 3 lists these 2012 and 2013 alaskafisheries.noaa.gov. amounts. Table 3 also lists seasonal Section 679.20(a)(5)(i)(A) requires that Section 679.20(a)(5)(i)(A)(4) also apportionments of pollock and harvest the BS subarea pollock TAC be includes several specific requirements limits within the Steller Sea Lion apportioned, after subtracting the 10 regarding BS subarea pollock Conservation Area (SCA). The harvest percent for the CDQ program and the 3 allocations. First, it requires that 8.5 percent for the ICA, as a DFA as follows: percent of the pollock allocated to the within the SCA, as defined at 50 percent to the inshore sector, 40 C/P sector be available for harvest by § 679.22(a)(7)(vii), is limited to 28 percent to the catcher/processor (C/P) AFA catcher vessels (CVs) with C/P percent of the annual DFA until 12 sector, and 10 percent to the mothership sector endorsements, unless the noon, April 1 as provided in sector. In the BS subarea, 40 percent of Regional Administrator receives a § 679.20(a)(5)(i)(C). The remaining 12 the DFA is allocated to the A season cooperative contract that allows the percent of the 40 percent annual DFA (January 20–June 10), and 60 percent of distribution of harvest among AFA C/ allocated to the A season may be taken the DFA is allocated to the B season and AFA CVs in a manner agreed to by outside the SCA before 12 noon, April (June 10–November 1) all members. Second, AFA C/Ps not 1 or inside the SCA after 12 noon, April (§ 679.20(a)(5)(i)(A)). The AI directed listed in the AFA are limited to 1. If less than 28 percent of the annual pollock fishery allocation to the Aleut harvesting not more than 0.5 percent of DFA is taken inside the SCA before 12 Corporation is the amount of pollock the pollock allocated to the C/P sector. noon, April 1, the remainder will be remaining in the AI subarea after Table 3 lists the 2012 and 2013 available to be taken inside the SCA subtracting 1,900 mt for the CDQ DFA allocations of pollock TAC. Tables 11 after 12 noon, April 1. The A season (10 percent) and 1,600 mt for the ICA through 16 list the AFA C/P and CV pollock SCA harvest limit will be (§ 679.20(a)(5)(iii)(B)(2)(ii)). In the AI harvesting sideboard limits. The tables apportioned to each sector in proportion subarea, 40 percent of the DFA is for the pollock allocations to the BS to each sector’s allocated percentage of allocated to the A season and the subarea inshore pollock cooperatives the DFA. Table 3 lists these 2012 and remainder of the directed pollock and open access sector will be posted on 2013 amounts by sector. TABLE 3—FINAL 2012 AND 2013 ALLOCATIONS OF POLLOCK TACS TO THE DIRECTED POLLOCK FISHERIES AND TO THE CDQ DIRECTED FISHING ALLOWANCES (DFA) 1 [Amounts are in metric tons]

2012 A season 1 2012 B 2013 A season 1 2013 B season 1 season 1 2012 SCA 2013 SCA Area and sector Allocations A season Allocations A season DFA harvest B season DFA harvest B season limit 2 DFA limit 2 DFA

Bering Sea subarea ...... 1,200,000 n/a n/a n/a 1,201,900 n/a n/a n/a CDQ DFA ...... 120,000 48,000 33,600 72,000 120,190 48,076 33,653 72,114 ICA 1 ...... 32,400 n/a n/a n/a 32,451 n/a n/a n/a AFA Inshore...... 523,800 209,520 146,664 314,280 524,629 209,852 146,896 314,778

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TABLE 3—FINAL 2012 AND 2013 ALLOCATIONS OF POLLOCK TACS TO THE DIRECTED POLLOCK FISHERIES AND TO THE CDQ DIRECTED FISHING ALLOWANCES (DFA) 1—Continued [Amounts are in metric tons]

2012 A season 1 2012 B 2013 A season 1 2013 B 1 1 season 2013 season Area and sector 2012 SCA SCA Allocations A season B season Allocations A season harvest B season DFA harvest DFA limit 2 DFA limit 2 DFA

AFA Catcher/Processors 3 ...... 419,040 167,616 117,331 251,424 419,703 167,881 117,517 251,822 Catch by C/Ps ...... 383,422 153,369 n/a 230,053 384,029 153,611 n/a 230,417 Catch by CVs 3 ...... 35,618 14,247 n/a 21,371 35,675 14,270 n/a 21,405 Unlisted C/P Limit 4 ...... 2,095 838 n/a 1,257 2,099 839 n/a 1,259 AFA Motherships...... 104,760 41,904 29,333 62,856 104,926 41,970 29,379 62,956 Excessive Harvesting Limit 5 ...... 183,330 n/a n/a n/a 183,620 n/a n/a n/a Excessive Processing Limit 6 ...... 314,280 n/a n/a n/a 314,778 n/a n/a n/a Total Bering Sea DFA ...... 1,047,600 419,040 293,328 628,560 1,049,259 419,703 293,792 629,555 Aleutian Islands subarea 1 ...... 19,000 n/a n/a n/a 19,000 n/a n/a n/a CDQ DFA ...... 1,900 760 n/a 1,140 1,900 760 n/a 1,140 ICA ...... 1,600 800 n/a 800 1,600 800 n/a 800 Aleut Corporation...... 15,500 15,500 n/a 0 15,500 15,500 n/a 0 Bogoslof District ICA 7 ...... 150 n/a n/a n/a 150 n/a n/a n/a 1 Pursuant to § 679.20(a)(5)(i)(A), the BS subarea pollock, after subtracting the CDQ DFA (10 percent) and the ICA (3 percent), is allocated as a DFA as follows: inshore sector—50 percent, catcher/processor sector (C/P)—40 percent, and mothership sector—10 percent. In the BS subarea, 40 percent of the DFA is allocated to the A season (January 20–June 10) and 60 percent of the DFA is allocated to the B season (June 10–November 1). Pursuant to § 679.20(a)(5)(iii)(B)(2)(i) and (ii), the annual AI pollock TAC, after subtracting first for the CDQ directed fishing allowance (10 percent) and second the ICA (1,600 mt), is allocated to the Aleut Corporation for a directed pollock fishery. In the AI subarea, the A season is allocated 40 percent of the ABC and the B season is allocated the remainder of the directed pollock fishery. 2 In the BS subarea, no more than 28 percent of each sector’s annual DFA may be taken from the SCA before April 1. The remaining 12 percent of the annual DFA allocated to the A season may be taken outside of SCA before April 1 or inside the SCA after April 1. If less than 28 percent of the annual DFA is taken inside the SCA before April 1, the remainder will be available to be taken inside the SCA after April 1. 3 Pursuant to § 679.20(a)(5)(i)(A)(4), not less than 8.5 percent of the DFA allocated to listed catcher/processors shall be available for harvest only by eligible catcher vessels delivering to listed catcher/processors. 4 Pursuant to § 679.20(a)(5)(i)(A)(4)(iii), the AFA unlisted catcher/processors are limited to harvesting not more than 0.5 percent of the catcher/processors sector’s allocation of pollock. 5 Pursuant to § 679.20(a)(5)(i)(A)(6), NMFS establishes an excessive harvesting share limit equal to 17.5 percent of the sum of the non-CDQ pollock DFAs. 6 Pursuant to § 679.20(a)(5)(i)(A)(7), NMFS establishes an excessive processing share limit equal to 30.0 percent of the sum of the non-CDQ pollock DFAs. 7 The Bogoslof District is closed by the final harvest specifications to directed fishing for pollock. The amounts specified are for ICA only and are not apportioned by season or sector. Note: Seasonal or sector apportionments may not total precisely due to rounding.

Allocation of the Atka Mackerel TACs 2013. This percentage is applied to the Section 679.20(a)(8)(ii)(C) requires the Section 679.20(a)(8) allocates the Atka Atka mackerel TAC after subtracting the Amendment 80 cooperatives and CDQ mackerel TACs to the Amendment 80 CDQ reserve and the ICA. groups to limit harvest to 10 percent of and BSAI trawl limited access sectors, Section 679.20(a)(8)(ii)(C)(3) limits their Central Aleutian District Atka after subtracting the CDQ reserves, jig the annual Atka mackerel TAC for Area mackerel allocation equally divided gear allocation, and ICAs for the BSAI 542 (the CAI) to no more than 47 between the A and B seasons, within trawl limited access sector and non- percent of the Area 542 ABC. Section waters 10 nm to 20 nm of Gramp Rock trawl gear sector (Table 4). The process 679.7(a)(19) prohibits retention of Atka and Tag Island, as described on Table 12 for allocating the ITAC for Atka mackerel in Area 543 (the WAI), and the to part 679. Vessels not fishing under mackerel to the Amendment 80 and amount set here accounts for discards in the authority of an Amendment 80 BSAI trawl limited access sectors is other fisheries. cooperative quota or CDQ allocation are listed in Table 33 to part 679 and Section 679.20(a)(8)(ii)(A) apportions prohibited from conducting directed § 679.91. Pursuant to § 679.20(a)(8)(i), the Atka mackerel ITAC into two equal fishing for Atka mackerel inside Steller up to 2 percent of the EAI and the BS seasonal allowances. Section sea lion critical habitat in the Central subarea Atka mackerel ITAC may be 679.23(e)(3) sets the first seasonal Aleutian District. allocated to the jig gear sector. This allowance for directed fishing with Table 4 lists these 2012 and 2013 Atka allocation is determined annually by the trawl gear from January 20 through June mackerel season and area allowances, as Council based on several criteria, 10 (A season), and the second seasonal well as the sector allocations. The 2013 including the anticipated harvest allowance from June 10 through allocations for Atka mackerel between capacity of the jig gear fleet. The November 1 (B season). Section Amendment 80 cooperatives and the Council recommended, and NMFS 679.23(e)(4)(iii) applies Atka mackerel Amendment 80 limited access sector approves, a 0.5 percent allocation of the seasons to CDQ Atka mackerel fishing. will not be known until eligible Atka mackerel ITAC in the EAI and BS The jig gear allocation is not participants apply for participation in subarea to the jig gear sector in 2012 and apportioned by season. the program by November 1, 2012.

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TABLE 4—FINAL 2012 AND 2013 SEASONAL AND SPATIAL ALLOWANCES, GEAR SHARES, CDQ RESERVE, INCIDENTAL CATCH ALLOWANCE, AND AMENDMENT 80 ALLOCATIONS OF THE BSAI ATKA MACKEREL TAC [Amounts are in metric tons]

2012 allocation by area 2013 allocation by area

Sector 1 Season 234 Eastern Aleu- Eastern Aleu- Central 5 Aleu- Western Aleu- Central 5 Aleu- Western Aleu- tian District/ tian District tian District tian District/ tian District tian District Bering Sea Bering Sea

TAC ...... n/a ...... 38,500 10,763 1,500 31,700 8,883 1,500 CDQ reserve...... Total ...... 4,120 1,152 161 3,392 950 161 A ...... 2,060 576 80 1,696 475 80 Critical Habi- n/a 58 n/a n/a 48 n/a tat 5. B ...... 2,060 576 80 1,696 475 80 Critical Habi- n/a 58 n/a n/a 48 n/a tat 5. ICA ...... Total ...... 1,000 100 40 1,000 100 40 Jig 6 ...... Total ...... 167 0 0 137 0 0 BSAI trawl limited ac- Total ...... 3,321 951 0 2,717 783 0 cess. A ...... 1,661 476 0 1,359 392 0 B ...... 1,661 476 0 1,359 392 0 Amendment 80 sectors Total ...... 29,892 8,560 1,300 24,454 7,049 1,300 A ...... 14,946 4,280 650 12,227 3,525 650 B ...... 14,946 4,280 650 12,227 3,525 650 Alaska Groundfish Co- Total ...... 17,432 5,020 759 n/a n/a n/a operative. A ...... 8,716 2,510 380 n/a n/a n/a Critical Habi- n/a 251 n/a n/a n/a n/a tat 5. B ...... 8,716 2,510 380 n/a n/a n/a Critical Habi- n/a 251 n/a n/a n/a n/a tat 5. Alaska Seafood Cooper- Total ...... 12,461 3,540 541 n/a n/a n/a ative. A ...... 6,231 1,770 271 n/a n/a n/a Critical Habi- n/a 177 n/a n/a n/a n/a tat 5. B ...... 6,231 1,770 271 n/a n/a n/a Critical Habi- n/a 177 n/a n/a n/a n/a tat 5. 1 Section 679.20(a)(8)(ii) allocates the Atka mackerel TACs, after subtractng the CDQ reserves, jig gear allocation, and ICAs to the Amend- ment 80 and BSAI trawl limited access sectors. The allocation of the ITAC for Atka mackerel to the Amendment 80 and BSAI trawl limited ac- cess sectors is established in Table 33 to part 679 and § 679.91. The CDQ reserve is 10.7 percent of the TAC for use by CDQ participants (see §§ 679.20(b)(1)(ii)(C) and 679.31). 2 Regulations at §§ 679.20(a)(8)(ii)(A) and 679.22(a) establish temporal and spatial limitations for the Atka mackerel fishery. 3 The seasonal allowances of Atka mackerel are 50 percent in the A season and 50 percent in the B season. 4 Section 679.23(e)(3) authorizes directed fishing for Atka mackerel with trawl gear during the A season from January 20 to June 10 and the B season from June 10 to November 1. 5 Section 679.20(a)(8)(ii)(C) requires the TAC in area 542 shall be no more than 47% of ABC, and Atka mackerel harvests for Amendment 80 cooperatives and CDQ groups within waters 10 nm to 20 nm of Gramp Rock and Tag Island, as described Table 12 to part 679, in Area 542 are limited to no more than 10 percent of the Amendment 80 cooperative Atka mackerel allocation or 10 percent of the CDQ Atka mackerel alloca- tion. 6 Section 679.20(a)(8)(i) requires that up to 2 percent of the Eastern Aleutian District and the Bering Sea subarea TAC be allocated to jig gear after subtracting the CDQ reserve and ICA. The amount of this allocation is 0.5 percent. The jig gear allocation is not apportioned by season. Note: Seasonal or sector apportionments may not total precisely due to rounding.

Allocation of the Pacific Cod ITAC trawl C/Ps; 13.4 percent to non-AFA Amendment 80 cooperatives and the trawl C/Ps; and 22.1 percent to trawl Amendment 80 limited access sector Section 679.20(a)(7)(i) and (ii) CVs. The ICA for the hook-and-line and will not be known until November 1, requires NMFS to allocate the Pacific pot sectors will be deducted from the 2012, the date by which the applicants cod TAC in the BSAI, after subtracting aggregate portion of Pacific cod TAC eligible to apply for participation in the 10.7 percent for the CDQ reserve, as allocated to the hook-and-line and pot Amendment 80 program must file their follows: 1.4 percent to vessels using jig sectors. For 2012 and 2013, the Regional application. Amendment 80 gear; 2.0 percent to hook-and-line and Administrator establishes an ICA of 500 applications for 2013 have not yet been pot CVs less than 60 ft (18.3 m) length overall (LOA); 0.2 percent to hook-and- mt based on anticipated incidental catch submitted to NMFS, thereby preventing line CVs greater than or equal to 60 ft by these sectors in other fisheries. The NMFS from calculating 2013 (18.3 m) LOA; 48.7 percent to hook-and- ITAC allocation of Pacific cod to the allocations. NMFS will post 2013 line C/P; 8.4 percent to pot CVs greater Amendment 80 sector is established in Amendment 80 allocations when they than or equal to 60 ft (18.3 m) LOA; 1.5 Table 33 to part 679 and § 679.91. The become available in December 2012. percent to pot C/Ps; 2.3 percent to AFA 2013 allocations for Pacific cod between

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The Pacific cod ITAC is apportioned beginning of the next seasonal allowances of Pacific cod set forth at into seasonal allowances to disperse the allowance. § 679.23(e)(5). Pacific cod fisheries over the fishing The CDQ and non-CDQ season Section 679.7(a)(19) prohibits year (see §§ 679.20(a)(7) and allowances by gear based on the 2012 retaining Pacific cod in Area 543, and 679.23(e)(5)). In accordance with and 2013 Pacific cod TACs are listed in § 679.7(a)(23) prohibits directed fishing § 679.20(a)(7)(iv)(B) and (C), any unused Tables 5a and 5b, and are based on the for Pacific cod with hook-and-line, pot, portion of a seasonal Pacific cod sector allocation percentages of Pacific or jig gear in the Aleutian Islands allowance will become available at the cod set forth at §§ 679.20(a)(7)(i)(B) and subarea November 1 through December 679.20(a)(7)(iv)(A); and the seasonal 31.

TABLE 5A—FINAL 2012 GEAR SHARES AND SEASONAL ALLOWANCES OF THE BSAI PACIFIC COD TAC

Share of Seasonal apportionment Gear sector Percent gear sector Share of total sector total Dates Amount

Total TAC ...... 100 261,000 n/a n/a ...... n/a CDQ ...... 10.7 27,927 n/a See §679.20(a)(7)(i)(B) .... n/a Total hook-and-line/pot gear ...... 60.8 141,708 n/a n/a ...... n/a Hook-and-line/pot ICA1 ...... n/a 500 n/a See 679.20(a)(7)(ii)(B)...... n/a Hook-and-line/pot sub-total ...... n/a 141,208 n/a n/a ...... n/a Hook-and-line catcher/processor ...... 48.7 n/a 113,106 Jan 1–Jun 10 ...... 57,684 Jun 10–Dec 31 ...... 55,422 Hook-and-line catcher vessel ≥60 ft LOA ...... 0.2 n/a 465 Jan 1–Jun 10 ...... 237 Jun 10–Dec 31 ...... 228 Pot catcher/processor ...... 1.5 n/a 3,484 Jan 1–Jun 10 ...... 1,777 Sept 1–Dec 31 ...... 1,707 Pot catcher vessel ≥60 ft LOA ...... 8.4 n/a 19,509 Jan 1–Jun 10 ...... 9,950 Sept 1–Dec 31 ...... 9,559 Catcher vessel <60 ft LOA using hook-and-line or pot gear 2 n/a 4,645 n/a ...... n/a Trawl catcher vessel ...... 22.1 51,509 n/a Jan 20–Apr 1 ...... 38,117 Apr 1–Jun 10 ...... 5,666 Jun 10–Nov 1 ...... 7,726 AFA trawl catcher/processor ...... 2.3 5,361 n/a Jan 20–Apr 1 ...... 4,021 Apr 1– Jun 10 ...... 1,340 Jun 10–Nov 1 ...... 0 Amendment 80 ...... 13.4 31,232 n/a Jan 20–Apr 1 ...... 23,424 Apr 1– Jun 10 ...... 7,808 Jun 10–Nov 1 ...... 0 Alaska Groundfish Cooperative ...... n/a n/a 5,816 Jan 20–Apr 1 ...... 4,362 Apr 1– Jun 10 ...... 1,454 Jun 10–Nov 1 ...... 0 Alaska Seafood Cooperative ...... n/a n/a 25,416 Jan 20–Apr 1 ...... 19,062 Apr 1– Jun 10 ...... 6,354 Jun 10–Nov 1 ...... 0 Jig ...... 1.4 3,263 n/a Jan 1–Apr 30 ...... 1,958 Apr 30–Aug 31 ...... 653 Aug 31–Dec 31 ...... 653 1 The ICA for the hook-and-line and pot sectors will be deducted from the aggregate portion of Pacific cod TAC allocated to the hook-and-line and pot sectors. The Regional Administrator approves an ICA of 500 mt based on anticipated incidental catch in these fisheries. Note: Seasonal or sector apportionments may not total precisely due to rounding.

TABLE 5B—FINAL 2013 GEAR SHARES AND SEASONAL ALLOWANCES OF THE BSAI PACIFIC COD TAC [Amounts are in metric tons]

Share of Seasonal apportionment 2 Gear sector Percent gear sector Share of total sector total Dates Amount

Total TAC ...... 100 262,900 n/a n/a ...... n/a CDQ ...... 10.7 28,130 n/a See §679.20(a)(7)(i)(B) .... n/a Total hook-and-line/pot gear ...... 60.8 142,740 n/a n/a ...... n/a Hook-and-line/pot ICA1 ...... n/a 500 n/a See §679.20(a)(7)(ii)(B) .... n/a Hook-and-line/pot sub-total ...... n/a 142,240 n/a n/a ...... n/a Hook-and-line catcher/processor ...... 48.7 n/a 113,932 Jan 1–Jun 10 ...... 58,105 Jun 10–Dec 31 ...... 55,827 Hook-and-line catcher vessel ≥60 ft LOA ...... 0.2 n/a 468 Jan 1–Jun 10 ...... 239 Jun 10–Dec 31 ...... 229 Pot catcher/processor ...... 1.5 n/a 3,509 Jan 1–Jun 10 ...... 1,790 Sept 1–Dec 31 ...... 1,720 Pot catcher vessel ≥60 ft LOA ...... 8.4 n/a 19,652 Jan 1–Jun 10 ...... 10,022 Sept 1–Dec 31 ...... 9,629 Catcher vessel <60 ft LOA using hook-and-line or pot gear 2 n/a 4,679 n/a ...... n/a

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TABLE 5B—FINAL 2013 GEAR SHARES AND SEASONAL ALLOWANCES OF THE BSAI PACIFIC COD TAC—Continued [Amounts are in metric tons]

Share of Seasonal apportionment 2 Gear sector Percent gear sector Share of total sector total Dates Amount

Trawl catcher vessel ...... 22.1 51,884 n/a Jan 20–Apr 1 ...... 38,394 Apr 1–Jun 10 ...... 5,707 Jun 10–Nov 1 ...... 7,783 AFA trawl catcher/processor ...... 2.3 5,400 n/a Jan 20–Apr 1 ...... 4,050 Apr 1–Jun 10 ...... 1,350 Jun 10–Nov 1 ...... 0 Amendment 80 ...... 13.4 31,459 n/a Jan 20–Apr 1 ...... 23,594 Apr 1–Jun 10 ...... 7,865 Jun 10–Nov 1 ...... 0 Amendment 80 limited access2 ...... n/a n/a See footnote 2 Jan 20–Apr 1 ...... 75% Apr 1–Jun 10 ...... 25% Jun 10–Nov 1 ...... 0 Amendment 80 cooperatives2 ...... n/a n/a See footnote 2 Jan 20–Apr 1 ...... 75% Apr 1–Jun 10 ...... 25% Jun 10–Nov 1 ...... 0 Jig ...... 1.4 3,287 n/a Jan 1–Apr 30 ...... 1,972 Apr 30–Aug 31 ...... 657 Aug 31–Dec 31 ...... 657 1 The ICA for the hook-and-line and pot sectors will be deducted from the aggregate portion of Pacific cod TAC allocated to the hook-and-line and pot sectors. The Regional Administrator approves an ICA of 500 mt based on anticipated incidental catch in these fisheries. 2 The 2013 allocations for Amendment 80 species between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known November 1, 2012, the date by which the applicants eligible to apply for participation in the Amendment 80 program must file their ap- plication. Note: Seasonal or sector apportionments may not total precisely due to rounding.

Sablefish Gear Allocation allot 20 percent of the hook-and-line limited to the 2012 fishing year to and pot gear allocation of sablefish to ensure those fisheries are conducted Sections 679.20(a)(4)(iii) and (iv) the CDQ reserve. Additionally, concurrently with the halibut IFQ require that sablefish TACs for the BS § 679.20(b)(1)(ii)(D) requires that 7.5 fishery. Concurrent sablefish and and AI subareas be allocated between percent of the trawl gear allocation of halibut IFQ fisheries reduce the trawl and hook-and-line or pot gear sablefish from the nonspecified potential for discards of halibut and sectors. Of the TAC for the BS subarea, reserves, established under sablefish in those fisheries. The 50 percent is allocated to vessels using § 679.20(b)(1)(i), be assigned to the CDQ sablefish IFQ fisheries will remain trawl gear, and 50 percent to hook-and- reserve. The Council recommended that closed at the beginning of each fishing line or pot gear vessels. TACs for the AI only trawl sablefish TAC be established year until the final specifications for the subarea are divided 25 percent to the biennially, because the harvest sablefish IFQ fisheries are in effect. trawl gear vessels, and 75 percent to specifications for the hook-and-line gear Table 6 lists the 2012 and 2013 gear hook-and-line or pot gear sector. Section and pot gear sablefish Individual allocations of the sablefish TAC and 679.20(b)(1)(ii)(B) requires NMFS to Fishing Quota (IFQ) fisheries will be CDQ reserve amounts.

TABLE 6—FINAL 2012 AND 2013 GEAR SHARES AND CDQ RESERVE OF BSAI SABLEFISH TACS [Amounts are in metric tons]

Percent of 2012 Share 2012 CDQ 2013 Share 2013 CDQ Subarea and gear TAC of TAC 2012 ITAC reserve of TAC 2013 ITAC reserve

Bering Sea Trawl 1 ...... 50 1,115 948 84 1,100 935 83 Hook-and-line/pot gear 2 ...... 50 1,115 892 223 n/a n/a n/a

Total ...... 100 2,230 1,840 307 1,100 935 83

Aleutian Islands Trawl 1 ...... 25 513 436 38 505 429 38 Hook-and-line/pot gear 2 ...... 75 1,537 1,230 307 n/a n/a n/a

Total ...... 100 2,050 1,666 346 505 429 38 1 Except for the sablefish hook-and-line or pot gear allocation, 15 percent of TAC is apportioned to the reserve. The ITAC is the remainder of the TAC after the subtracting these reserves. 2 For the portion of the sablefish TAC allocated to vessels using hook-and-line or pot gear, 20 percent of the allocated TAC is reserved for use by CDQ participants. The Council recommended that specifications for the hook-and-line gear sablefish IFQ fisheries be limited to one year. Note: Sector apportionments may not total precisely due to rounding.

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Allocation of the AI Pacific Ocean non-trawl gear. The allocation of the for participation in the Amendment 80 Perch, and BSAI Flathead Sole, Rock ITAC for AI Pacific ocean perch, and program must file their application. Sole, and Yellowfin Sole TACs BSAI flathead sole, rock sole, and Amendment 80 applications for 2013 Sections 679.20(a)(10)(i) and (ii) yellowfin sole to the Amendment 80 have not yet been submitted to NMFS, require that NMFS allocate AI Pacific sector is established in accordance with thereby preventing NMFS from ocean perch, and BSAI flathead sole, Tables 33 and 34 to part 679 and calculating 2013 allocations. NMFS will rock sole, and yellowfin sole TACs § 679.91. The 2013 allocations for publish 2013 Amendment 80 allocations between the Amendment 80 sector and Amendment 80 species between when they become available in BSAI trawl limited access sector, after Amendment 80 cooperatives and December 2012. Table 7a and 7b lists subtracting 10.7 percent for the CDQ limited access sector will not be known the 2012 and 2013 allocations of the AI reserve and an ICA for the BSAI trawl until November 1, 2012, the date by Pacific ocean perch, and BSAI flathead limited access sector and vessels using which the applicants eligible to apply sole, rock sole, and yellowfin sole TACs.

TABLE 7A—FINAL 2012 COMMUNITY DEVELOPMENT QUOTA (CDQ) RESERVES, INCIDENTAL CATCH AMOUNTS (ICAS), AND AMENDMENT 80 ALLOCATIONS OF THE ALEUTIAN ISLANDS PACIFIC OCEAN PERCH, AND BSAI FLATHEAD SOLE, ROCK SOLE, AND YELLOWFIN SOLE TACS [Amounts are in metric tons]

Pacific ocean perch Flathead sole Rock sole Yellowfin sole Sector Eastern Aleu- Central Aleutian Western Aleu- tian District District tian District BSAI BSAI BSAI

TAC ...... 5,620 4,990 8,380 34,134 87,000 202,000 CDQ ...... 601 534 897 3,652 9,309 21,614 ICA ...... 100 75 10 5,000 10,000 2,000 BSAI trawl limited access ...... 492 438 149 0 0 36,297 Amendment 80 ...... 4,427 3,943 7,324 25,482 67,691 142,089 Alaska Groundfish Cooperative ... 2,347 2,091 3,883 4,976 19,000 60,313 Alaska Seafood Cooperative ...... 2,080 1,852 3,440 20,506 48,691 81,776 Note: Sector apportionments may not total precisely due to rounding.

TABLE 7B—FINAL 2013 COMMUNITY DEVELOPMENT QUOTA (CDQ) RESERVES, INCIDENTAL CATCH AMOUNTS (ICAS), AND AMENDMENT 80 ALLOCATIONS OF THE ALEUTIAN ISLANDS PACIFIC OCEAN PERCH, AND BSAI FLATHEAD SOLE, ROCK SOLE, AND YELLOWFIN SOLE TACS [Amounts are in metric tons]

Pacific ocean perch Flathead sole Rock sole Yellowfin sole Sector Eastern Aleu- Central Aleutian Western Aleu- tian District District tian District BSAI BSAI BSAI

TAC ...... 6,440 5,710 9,610 34,134 87,000 203,900 CDQ ...... 689 611 1,028 3,652 9,309 21,817 ICA ...... 100 75 10 5,000 10,000 2,000 BSAI trawl limited access ...... 565 502 171 0 0 36,975 Amendment 801 ...... 5,086 4,522 8,400 25,482 67,691 143,107 1 The 2013 allocations for Amendment 80 species between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until November 1, 2012, the date by which the applicants eligible to apply for participation in the Amendment 80 program must file their application. Note: Sector apportionments may not total precisely due to rounding.

Allocation of PSC Limits for Halibut, allowances among six fishery categories. be negligible because of the small size Salmon, Crab, and Herring Table 8c lists the fishery bycatch of the fishery and the selectivity of the Section 679.21(e) sets forth the BSAI allowances for the trawl and non-trawl gear; and (3) the sablefish and halibut PSC limits. Pursuant to § 679.21(e)(1)(iv) fisheries. IFQ fisheries have low halibut bycatch and (e)(2), the 2012 and 2013 BSAI Pursuant to section 3.6 of the BSAI mortality because the IFQ program halibut mortality limits are 3,675 mt for FMP, the Council recommends, and requires legal-size halibut to be retained trawl fisheries and 900 mt for the non- NMFS agrees, that certain specified non- by vessels using hook-and-line gear if a trawl fisheries. Under sections trawl fisheries be exempt from the halibut IFQ permit holder or a hired 679.21(e)(3)(i)(A)(2) and (e)(4)(i)(A), halibut PSC limit. As in past years, after master is aboard and is holding unused NMFS allocates 326 mt of the trawl consulting with the Council, NMFS halibut IFQ (subpart D of 50 CFR part halibut mortality limit and 7.5 percent, exempts pot gear, jig gear, and the 679). In 2011, total groundfish catch for or 67 mt, of the non-trawl halibut sablefish IFQ hook-and-line gear fishery the pot gear fishery in the BSAI was mortality limit as the PSQ reserve for categories from halibut bycatch approximately 29,508 mt, with an use by the groundfish CDQ program. restrictions for the following reasons: (1) associated halibut bycatch mortality of Section 679.21(e)(4)(i) authorizes The pot gear fisheries have low halibut about 6 mt. NMFS to apportion the non-trawl bycatch mortality; (2) NMFS estimates The 2011 jig gear fishery harvested halibut PSC limit into PSC bycatch halibut mortality for the jig gear fleet to about 505 mt of groundfish. Most

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vessels in the jig gear fleet are less than PSC limits for crab and herring are Fish and Game. Therefore, the herring 60 ft (18.3 m) LOA and thus are exempt specified annually based on abundance PSC limit for 2012 and 2013 is 2,094 mt from observer coverage requirements. and spawning biomass. Pursuant to for all trawl gear, as presented in Tables As a result, observer data are not § 679.21(e)(3)(i)(A)(1), 10.7 percent from 8a and b. available on halibut bycatch in the jig each trawl gear PSC limit specified for Section 679.21(e)(3)(A) requires PSQ gear fishery. However, as mentioned crab is allocated as a PSQ reserve for use reserves to be subtracted from the total above, NMFS estimates the jig gear by the groundfish CDQ program. sector will have a negligible amount of Based on the 2011 survey data, the trawl PSC limits. The amounts of 2011 halibut bycatch mortality because of the red king crab mature female abundance PSC limits assigned to the Amendment selective nature of jig gear and the low is estimated at 27.6 million red king 80 and BSAI trawl limited access sectors mortality rate of halibut caught with jig crabs, and the effective spawning are specified in Table 35 to part 679. gear and released. biomass is estimated at 43.1 million lb. The resulting allocation of PSC limit to Section 679.21(f)(2) requires NMFS to Based on the criteria set out at CDQ PSQ, the Amendment 80 sector, annually allocate portions of either § 679.21(e)(1)(i), the 2012 and 2013 PSC and the BSAI trawl limited access 47,591 or 60,000 Chinook salmon PSC limit of red king crab in Zone 1 for trawl fisheries are listed in Table 8a. Pursuant among the AFA sectors, depending gear is 97,000 animals. This limit to § 679.21(e)(1)(iv) and § 679.91(d) upon past catch performance and upon derives from the mature female through (f), crab and halibut trawl PSC whether or not Chinook salmon bycatch abundance of more than 8.4 million limits assigned to the Amendment 80 incentive plan agreements are formed. If king crab and the effective spawning sector are then further allocated to an AFA sector participates in an biomass estimate of less than 55 million Amendment 80 cooperatives as PSC approved Chinook salmon bycatch lb (24,948 mt). cooperative quota, as listed in Table 8e. incentive plan agreement, then NMFS Section 679.21(e)(3)(ii)(B)(2) PSC cooperative quota assigned to establishes criteria under which NMFS will allocate a portion of the 60,000 PSC Amendment 80 cooperatives is not limit to that sector as specified in must specify an annual red king crab allocated to specific fishery categories. § 679.21(f)(3)(iii)(A). If no Chinook bycatch limit for the Red King Crab In 2012, there are no vessels in the salmon bycatch incentive plan Savings Subarea (RKCSS). The agreement is approved, or if the sector regulations require NMFS to set the Amendment 80 limited access sector. has exceeded its performance standard RKCSS red king crab bycatch limit to up NMFS will not know the 2013 PSC under § 679.21(f)(6), NMFS will allocate to 25 percent of the red king crab PSC allocations between Amendment 80 a portion of the 47,591 Chinook salmon limit, based on the need to optimize the cooperatives and the Amendment 80 PSC limit to that sector as specified in groundfish harvest relative to red king limited access sector until November 1, § 679.21(f)(3)(iii)(B). In 2012, the crab bycatch. In December 2011, the 2012, the date by which the applicants Chinook salmon PSC limit is 60,000 and Council recommended that the red king eligible to apply to participate in the the AFA sector Chinook salmon crab bycatch limit be equal to 25 percent Amendment 80 program must file their allocations are seasonally allocated with of the red king crab PSC limit within the application. Section 679.21(e)(3)(i)(B) 70 percent of the allocation for the A RKCSS (Table 8b). NMFS concurs with requires NMFS to apportion each trawl season pollock fishery, and 30 percent the Council’s recommendation. PSC limit not assigned to Amendment of the allocation for the B season Based on 2011 survey data, Tanner 80 cooperatives into PSC bycatch pollock fishery as stated in crab (Chionoecetes bairdi) abundance is allowances for seven specified fishery § 679.21(f)(3)(iii)(A). The basis for these estimated at 670 million animals. categories. PSC limits is described in detail in the Pursuant to criteria set out at final rule implementing management § 679.21(e)(1)(ii), NMFS calculates 2012 Section 679.21(e)(5) authorizes measures for Amendment 91 (75 FR and 2013 C. bairdi crab PSC limit for NMFS, after consulting with the 53026, August 30, 2010). NMFS trawl gear is 980,000 animals in Zone 1 Council, to establish seasonal publishes the approved Chinook salmon and 2,970,000 animals in Zone 2. These apportionments of PSC amounts for the bycatch incentive plan agreements, 2012 limits are derived from the C. bairdi BSAI trawl limited access and allocations and reports at: http:// crab abundance estimate being in excess Amendment 80 limited access sectors in alaskafisheries.noaa.gov/ of the 400 million animals for both the order to maximize the ability of the fleet sustainablefisheries/bycatch/ Zone 1 and Zone 2 allocations. to harvest the available groundfish TAC default.htm. Pursuant to § 679.21(e)(1)(iii), the PSC and to minimize bycatch. The factors to Section 679.21(e)(1)(viii) specifies 700 limit for snow crab (C. opilio) is based be considered are (1) seasonal fish as the 2012 and 2013 Chinook on total abundance as indicated by the distribution of prohibited species; (2) salmon PSC limit for the AI subarea NMFS annual bottom trawl survey. The seasonal distribution of target pollock fishery. Pursuant to section C. opilio crab PSC limit is set at 0.1133 groundfish species; (3) PSC bycatch 679.21(e)(3)(i)(A)(3)(i), NMFS allocates percent of the BS abundance index needs on a seasonal basis relevant to 7.5 percent, or 53 Chinook salmon, to minus 150,000 crabs. Based on the 2011 prohibited species biomass; (4) expected the AI subarea PSQ for the CDQ survey estimate of 6.337 billion animals, variations in bycatch rates throughout program, and allocates the remaining the calculated C. opilio crab PSC limit the year; (5) expected start of fishing 647 Chinook salmon to the non-CDQ is 7,029,520 animals. effort; and (6) economic effects of fisheries. Pursuant to § 679.21(e)(1)(v), the PSC Section 679.21(e)(1)(vii) specifies limit of Pacific herring caught while seasonal PSC apportionments on 42,000 fish as the 2012 and 2013 non- conducting any trawl operation for BSAI industry sectors. The Council Chinook salmon PSC limit. Section groundfish is 1 percent of the annual recommended and NMFS approves the 679.21(e)(3)(i)(A)(3)(ii) requires NMFS eastern BS herring biomass. The best seasonal PSC apportionments in Tables to allocate 10.7 percent, or 4,494 non- estimate of 2012 and 2013 herring 8c and 8d to maximize harvest among Chinook salmon, as the PSQ for the biomass is 209,419 mt. This amount was gear types, fisheries, and seasons while CDQ program and allocates the derived using 2011 survey data and an minimizing bycatch of PSC based on the remaining 37,506 non-Chinook salmon age-structured biomass projection model above criteria. to the non-CDQ fisheries. developed by the Alaska Department of

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TABLE 8A—FINAL 2012 AND 2013 APPORTIONMENT OF PROHIBITED SPECIES CATCH ALLOWANCES TO NON-TRAWL GEAR, THE CDQ PROGRAM, AMENDMENT 80, AND THE BSAI TRAWL LIMITED ACCESS SECTORS

Non-trawl Trawl PSC BSAI trawl Total non- PSC remain- Total trawl remaining CDQ PSQ Amendment PSC species 1 2 limited ac- trawl PSC ing after PSC after CDQ reserve 80 sector cess fishery CDQ PSQ 1 PSQ 1

Halibut mortality (mt) BSAI ...... 900 832 3,675 3,349 393 2,325 875 Herring (mt) BSAI...... n/a n/a 2,094 n/a n/a n/a n/a Red king crab (animals) Zone 1 1 ...... n/a n/a 97,000 86,621 10,379 43,293 26,489 C. opilio (animals) COBLZ 2 ...... n/a n/a 7,029,520 6,277,361 752,159 3,085,323 2,017,544 C. bairdi crab (animals) Zone 1 2 n/a n/a 980,000 875,140 104,860 368,521 411,228 C. bairdi crab (animals) Zone 2 n/a n/a 2,970,000 2,652,210 317,790 627,778 1,241,500 1 Section 679.21(e)(3)(i)(A)(2) allocates 326 mt of the trawl halibut mortality limit and § 679.21(e)(4)(i)(A) allocates 7.5 percent, or 67 mt, of the non-trawl halibut mortality limit as the PSQ reserve for use by the groundfish CDQ program. The PSQ reserve for crab species is 10.7 percent of each crab PSC limit. 2 The Amendment 80 program reduced apportionment of the trawl PSC limits by 150 mt for halibut mortality and 20 percent for crab. These re- ductions are not apportioned to other gear types or sectors. Note: Refer to § 679.2 for definitions of zones. Note: Sector apportionments may not total precisely due to rounding.

TABLE 8B—FINAL 2012 AND 2013 HERRING AND RED KING CRAB SAVINGS SUBAREA PROHIBITED SPECIES CATCH ALLOWANCES FOR ALL TRAWL SECTORS

Red king crab Fishery categories Herring (mt) (animals) BSAI Zone 1

Yellowfin sole ...... 179 n/a Rock sole/flathead sole/other flatfish 1 ...... 31 n/a Turbot/arrowtooth/sablefish 2 ...... 15 n/a Rockfish ...... 11 n/a Pacific cod ...... 31 n/a Midwater trawl pollock ...... 1,600 n/a Pollock/Atka mackerel/other species 34 ...... 227 n/a Red king crab savings subarea non-pelagic trawl gear 5 ...... n/a 24,250

Total trawl PSC ...... 2,094 97,000 1 ‘‘Other flatfish’’ for PSC monitoring includes all flatfish species, except for halibut (a prohibited species), arrowtooth flounder, flathead sole, Greenland turbot, Kamchatka flounder, rock sole, and yellowfin sole. 2 ‘‘Arrowtooth flounder’’ for PSC monitoring includes Kamchatka flounder. 3 Pollock other than pelagic trawl pollock, Atka mackerel, and ‘‘other species’’ fishery category. 4 ‘‘Other species’’ for PSC monitoring includes sculpins, sharks, skates, and octopuses. 5 In December 2011 the Council recommended that the red king crab bycatch limit for non-pelagic trawl fisheries within the RKCSS be limited to 25 percent of the red king crab PSC allowance (see § 679.21(e)(3)(ii)(B)(2)). Note: Species apportionments may not total precisely due to rounding.

TABLE 8C—FINAL 2012 AND 2013 PROHIBITED SPECIES BYCATCH ALLOWANCES FOR THE BSAI TRAWL LIMITED ACCESS SECTOR

Prohibited species and area 1 BSAI trawl limited access fisheries Red king crab C. bairdi (animals) Halibut mortality (animals) Zone C. opilio (ani- (mt) BSAI 1 mals) COBLZ Zone 1 Zone 2

Yellowfin sole ...... 167 23,338 1,901,193 346,228 1,185,500 Rock sole/flathead sole/other flatfish 2 ...... 0 0 0 0 0 Turbot/arrowtooth/sablefish 3 ...... 0 0 0 0 0 Rockfish April 15–December 31 ...... 5 0 3,232 0 1,000 Pacific cod...... 453 2,954 80,799 60,000 50,000 Pollock/Atka mackerel/other species 4 ...... 250 197 32,320 5,000 5,000

Total BSAI trawl limited access PSC ...... 875 26,489 2,017,544 411,228 1,241,500 1 Refer to § 679.2 for definitions of areas. 2 ‘‘Other flatfish’’ for PSC monitoring includes all flatfish species, except for halibut (a prohibited species), flathead sole, Greenland turbot, rock sole, yellowfin sole, Kamchatka flounder, and arrowtooth flounder. 3 Arrowtooth flounder for PSC monitoring includes Kamchatka flounder. 4 ‘‘Other species’’ for PSC monitoring includes sculpins, sharks, skates, and octopuses. Note: Seasonal or sector apportionments may not total precisely due to rounding.

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TABLE 8D—FINAL 2012 AND 2013 PROHIBITED SPECIES BYCATCH ALLOWANCES FOR NON-TRAWL FISHERIES

Non-trawl fisheries Catcher/processor Catcher vessel

Pacific cod—Total ...... 760 15 January 1–June 10 ...... 455 10 June 10–August 15 ...... 190 3 August 15–December 31 ...... 115 2

Other non-trawl—Total ...... 58 May 1–December 31 ...... 58 Groundfish pot and jig ...... Exempt Sablefish hook-and-line ...... Exempt

Total non-trawl PSC ...... 833 Note: Seasonal or sector apportionments may not total precisely due to rounding.

TABLE 8E—FINAL 2012 PROHIBITED SPECIES BYCATCH ALLOWANCE FOR THE BSAI AMENDMENT 80 COOPERATIVES

Prohibited species and zones 1

Cooperative Halibut mortality Red king crab C. opilio (ani- C. bairdi (animals) (mt) BSAI (animals) Zone mals) COBLZ 1 Zone 1 Zone 2

Alaska Seafood Cooperative ...... 1,609 29,484 1,991,961 259,427 433,149 Alaska Groundfish Cooperative ...... 716 13,809 1,093,362 109,094 194,629 1 Refer to § 679.2 for definitions of zones. Note: Sector apportionments may not total precisely due to rounding.

Halibut Discard Mortality Rates (DMR) available, including information fisheries using the 10-year mean DMRs contained in the annual SAFE report. for those fisheries. The IPHC will To monitor halibut bycatch mortality NMFS approves the halibut DMRs analyze observer data annually and allowances and apportionments, the developed and recommended by the recommend changes to the DMRs when Regional Administrator uses observed International Pacific Halibut a fishery DMR shows large variation halibut bycatch rates, DMRs, and Commission (IPHC) and the Council for from the mean. The document justifying estimates of groundfish catch to project the 2012 and 2013 BSAI groundfish these DMRs is available in Appendix 2 when a fishery’s halibut bycatch fisheries for use in monitoring the 2012 in the final 2009 SAFE report dated mortality allowance or seasonal and 2013 halibut bycatch allowances November 2009 (see ADDRESSES). Table apportionment is reached. The DMRs (see Tables 8a–8e). The IPHC developed 9 lists the 2012 and 2013 DMRs. are based on the best information these DMRs for the 2010 and 2011 BSAI

TABLE 9—FINAL 2012 AND 2013 PACIFIC HALIBUT DISCARD MORTALITY RATES FOR THE BSAI

Halibut discard Gear Fishery mortality rate (percent)

Non-CDQ hook-and-line ...... Greenland turbot ...... 11 Other species 1 ...... 10 Pacific cod ...... 10 Rockfish ...... 9 Non-CDQ trawl ...... Arrowtooth flounder 2 ...... 76 Atka mackerel ...... 76 Flathead sole ...... 74 Greenland turbot ...... 67 Non-pelagic pollock ...... 73 Pelagic pollock ...... 89 Other flatfish 3 ...... 72 Other species 1 ...... 71 Pacific cod ...... 71 Rockfish ...... 81 Rock sole ...... 82 Sablefish ...... 75 Yellowfin sole ...... 81 Non-CDQ Pot ...... Other species 1 ...... 8 Pacific cod ...... 8 CDQ trawl ...... Atka mackerel ...... 85 Greenland turbot ...... 88 Flathead sole ...... 84 Non-pelagic pollock ...... 85 Pacific cod ...... 90 Pelagic pollock ...... 90

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TABLE 9—FINAL 2012 AND 2013 PACIFIC HALIBUT DISCARD MORTALITY RATES FOR THE BSAI—Continued

Halibut discard Gear Fishery mortality rate (percent)

Rockfish ...... 84 Rock sole ...... 87 Yellowfin sole ...... 85 CDQ hook-and-line ...... Greenland turbot ...... 4 Pacific cod ...... 10 CDQ pot ...... Pacific cod ...... 8 Sablefish ...... 32 1 ‘‘Other species’’ includes sculpins, sharks, skates, and octopuses. 2 Arrowtooth flounder includes Kamchatka flounder. 3 ‘‘Other flatfish’’ includes all flatfish species, except for halibut (a prohibited species), flathead sole, Greenland turbot, rock sole, yellowfin sole, Kamchatka flounder, and arrowtooth flounder.

Directed Fishing Closures red king crab, C. bairdi crab, or C. opilio 10 as zero. Therefore, in accordance In accordance with § 679.20(d)(1)(i), crab for a specified area has been with § 679.20(d)(1)(iii), NMFS is the Regional Administrator may reached, the Regional Administrator prohibiting directed fishing for these establish a DFA for a species or species will prohibit directed fishing for each sectors and species in the specified group if the Regional Administrator species in that category in the specified areas effective at 1200 hrs, A.l.t., determines that any allocation or area. February 23, 2012, through 2400 hrs, apportionment of a target species has Based upon historic catch patterns A.l.t., December 31, 2013. Also, for the been or will be reached. If the Regional and anticipated fishing activity, the BSAI trawl limited access sector, Administrator establishes a DFA, and Regional Administrator has determined bycatch allowances of halibut, red king that allowance is or will be reached that the groundfish allocation amounts crab, C. bairdi crab, and C. opilio crab before the end of the fishing year, NMFS in Table 10 will be necessary as listed in Table 10 are insufficient to will prohibit directed fishing for that incidental catch to support other support directed fisheries. Therefore, in species or species group in the specified anticipated groundfish fisheries for the accordance with § 679.21(e)(7), NMFS is subarea or district (see 2012 and 2013 fishing years. prohibiting directed fishing for these § 697.20(d)(1)(iii)). Similarly, pursuant Consequently, in accordance with sectors and fishery categories in the to § 679.21(e), if the Regional § 679.20(d)(1)(i), the Regional specified areas effective at 1200 hrs, Administrator determines that a fishery Administrator establishes the DFA for A.l.t., February 23, 2012, through 2400 category’s bycatch allowance of halibut, the species and species groups in Table hrs, A.l.t., December 31, 2013.

TABLE 10—2012 AND 2013 DIRECTED FISHING CLOSURES 1 [Groundfish and halibut amounts are in metric tons. Crab amounts are in number of animals]

2012 inci- 2013 inci- Area Sector Species dental catch dental catch allowance allowance

Bogoslof District ...... All ...... Pollock ...... 500 500 Aleutian Islands subarea ...... All ...... ICA pollock ...... 1,600 1,600 ‘‘Other rockfish’’ 2 ...... 570 570 Eastern Aleutian District/Bering Sea Non-amendment 80 and BSAI trawl ICA Atka mackerel ...... 1,000 1,000 limited access. Eastern Aleutian District/Bering Sea All ...... Rougheye rockfish ...... 231 241 Eastern Aleutian District ...... Non-amendment 80 and BSAI trawl ICA Pacific ocean perch ...... 100 100 limited access. Central Aleutian District ...... Non-amendment 80 and BSAI trawl ICA Atka mackerel ...... 100 100 limited access. ICA Pacific ocean perch ...... 75 75 Western Aleutian District ...... Non-amendment 80 and BSAI trawl ICA Atka mackerel ...... 40 40 limited access. ICA Pacific ocean perch ...... 10 10 Central and Western Aleutian Dis- All ...... Rougheye rockfish ...... 244 258 tricts. Bering Sea subarea ...... All ...... Pacific ocean perch ...... 4,854 5,559 ‘‘Other rockfish’’ 2 ...... 500 500 ICA pollock ...... 32,400 32,451 Bering Sea and Aleutian Islands ...... All ...... Northern rockfish ...... 4,700 4,700 Shortraker rockfish ...... 393 393 Squids ...... 361 361 Skates ...... 24,700 24,746 Sharks ...... 200 200 Octopuses ...... 900 900 Sculpins ...... 5,200 5,200 Hook-and-line and pot gear ...... ICA Pacific cod ...... 500 500 Non-amendment 80 ...... ICA flathead sole ...... 5,000 5,000

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TABLE 10—2012 AND 2013 DIRECTED FISHING CLOSURES 1—Continued [Groundfish and halibut amounts are in metric tons. Crab amounts are in number of animals]

2012 inci- 2013 inci- Area Sector Species dental catch dental catch allowance allowance

ICA rock sole ...... 10,000 10,000 Non-amendment 80 and BSAI trawl ICA yellowfin sole ...... 2,000 2,000 limited access. BSAI trawl limited access ...... Rock sole/flathead sole/other flat- 0 0 fish—halibut mortality, red king crab Zone 1, C. opilio COBLZ, C. bairdi Zone 1 and 2. Turbot/arrowtooth/sablefish—halibut 0 0 mortality, red king crab Zone 1, C. opilio COBLZ, C. bairdi Zone 1 and 2. Rockfish—red king crab Zone 1 ...... 0 0 1 Maximum retainable amounts may be found in Table 11 to 50 CFR part 679. 2 ‘‘Other rockfish’’ includes all Sebastes and Sebastolobus species except for Pacific ocean perch, northern rockfish, dark rockfish, shortraker rockfish, and rougheye rockfish.

Closures implemented under the 2011 protect participants in other groundfish listed AFA C/Ps. The basis for these and 2012 BSAI harvest specifications for fisheries from adverse effects resulting sideboard limits is described in detail in groundfish (76 FR 11139, March 1, from the AFA and from fishery the final rules implementing the major 2011) remain effective under authority cooperatives in the directed pollock provisions of the AFA (67 FR 79692, of these final 2012 and 2013 harvest fishery. These restrictions are set out as December 30, 2002) and Amendment 80 specifications, and are posted at the ‘‘sideboard’’ limits on catch. The basis (72 FR 52668, September 14, 2007). following Web sites: http:// for these sideboard limits is described in PSC species listed in Table 12 that are alaskafisheries.noaa.gov/index/ detail in the final rules implementing caught by listed AFA C/Ps participating infobulletins/infobulletins.asp?Yr=2012 the major provisions of the AFA (67 FR in any groundfish fishery other than and http://alaskafisheries.noaa.gov/ 79692, December 30, 2002) and pollock will accrue against the 2012 and 2012/status.htm. While these closures Amendment 80 (72 FR 52668, 2013 PSC sideboard limits for the listed are in effect, the maximum retainable September 14, 2007). Table 11 lists the AFA C/Ps. Section 679.21(e)(3)(v) amounts at § 679.20(e) and (f) apply at 2012 and 2013 C/P sideboard limits. authorizes NMFS to close directed any time during a fishing trip. These All harvest of groundfish sideboard fishing for groundfish other than closures to directed fishing are in species by listed AFA C/Ps, whether as pollock for listed AFA C/Ps once a 2012 addition to closures and prohibitions targeted catch or incidental catch, will or 2013 PSC sideboard limit listed in found in regulations at 50 CFR part 679. be deducted from the sideboard limits Table 12 is reached. in Table 11. However, groundfish Crab or halibut PSC caught by listed Listed AFA Catcher/Processor sideboard species that are delivered to AFA C/Ps while fishing for pollock will Sideboard Limits listed AFA C/Ps by CVs will not be accrue against the bycatch allowances Pursuant to § 679.64(a), the Regional deducted from the 2012 and 2013 annually specified for either the Administrator is responsible for sideboard limits for the listed AFA C/Ps. midwater pollock or the pollock/Atka restricting the ability of listed AFA Section 679.64(a)(2) and Tables 40 mackerel/‘‘other species’’ fishery C/Ps to engage in directed fishing for and 41 of part 679 establish a formula categories under regulations at groundfish species other than pollock to for calculating PSC sideboard limits for § 679.21(e)(3)(iv).

TABLE 11—FINAL 2012 AND 2013 LISTED BSAI AMERICAN FISHERIES ACT CATCHER/PROCESSOR GROUNDFISH SIDEBOARD LIMITS [Amounts are in metric tons]

1995–1997 2012 ITAC 2012 AFA 2013 ITAC 2013 AFA Target species Area/season Ratio of re- available to Retained tained catch C/P side- available to C/P side- trawl C/Ps 1 1 catch Total catch to total board limit trawl C/Ps board limit catch

Sablefish trawl...... BS ...... 8 497 0.016 948 15 935 15 AI ...... 0 145 0 436 0 429 0 Atka mackerel ...... Central AI A sea- n/a n/a 0.115 4,806 553 3,966 456 son 2. Central AI B sea- n/a n/a 0.115 4,806 553 3,966 456 son 2. Western AI A sea- n/a n/a 0.2 670 134 670 134 son 2. Western AI B sea- n/a n/a 0.2 670 134 670 134 son 2. Rock sole...... BSAI ...... 6,317 169,362 0.037 77,691 2,875 77,691 2,875

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TABLE 11—FINAL 2012 AND 2013 LISTED BSAI AMERICAN FISHERIES ACT CATCHER/PROCESSOR GROUNDFISH SIDEBOARD LIMITS—Continued [Amounts are in metric tons]

1995–1997 Ratio of re- 2012 ITAC 2012 AFA 2013 ITAC 2013 AFA Target species Area/season available to C/P side- available to C/P side- Retained tained catch 1 1 catch Total catch to total trawl C/Ps board limit trawl C/Ps board limit catch

Greenland turbot ... BS ...... 121 17,305 0.007 5,296 37 5,109 36 AI ...... 23 4,987 0.005 2,066 10 1,717 9 Arrowtooth flounder BSAI...... 76 33,987 0.002 21,250 43 21,250 43 Kamchatka floun- BSAI ...... 76 33,987 0.002 15,045 30 15,045 30 der. Flathead sole...... BSAI ...... 1,925 52,755 0.036 30,482 1,097 30,482 1,097 Alaska plaice...... BSAI ...... 14 9,438 0.001 20,400 20 20,400 20 Other flatfish...... BSAI ...... 3,058 52,298 0.058 2,720 158 2,720 158 Pacific ocean BS ...... 12 4,879 0.002 4,854 10 5,559 11 perch. Eastern AI...... 125 6,179 0.02 5,019 100 5,751 115 Central AI...... 3 5,698 0.001 4,456 4 5,099 5 Western AI ...... 54 13,598 0.004 7,483 30 8,582 34 Northern rockfish.. BSAI ...... 91 13,040 0.007 4,700 33 4,700 33 Shortraker rockfish BSAI ...... 50 2,811 0.018 393 7 393 7 Rougheye rockfish EBS/EAI...... 50 2,811 0.018 231 4 241 4 CAI/WAI ...... 50 2,811 0.018 244 4 258 5 Other rockfish...... BS ...... 18 621 0.029 500 15 500 15 AI ...... 22 806 0.027 570 15 570 15 Squids ...... BSAI ...... 73 3,328 0.022 361 8 361 8 Skates ...... BSAI ...... 553 68,672 0.008 24,700 198 24,746 198 Sharks ...... BSAI ...... 553 68,672 0.008 200 2 200 2 Octopuses ...... BSAI ...... 553 68,672 0.008 900 7 900 7 Sculpins ...... BSAI ...... 553 68,672 0.008 5,200 42 5,200 42 1 Aleutian Islands Pacific ocean perch, and BSAI Atka mackerel, flathead sole, rock sole, yellowfin sole are multiplied by the remainder of the TAC after the subtraction of the CDQ reserve under § 679.20(b)(1)(ii)(C). 2 The seasonal apportionment of Atka mackerel in the open access fishery is 50 percent in the A season and 50 percent in the B season. List- ed AFA catcher/processors are limited to harvesting no more than zero in the Eastern Aleutian District and Bering Sea subarea, 20 percent of the annual ITAC specified for the Western Aleutian District, and 11.5 percent of the annual ITAC specified for the Central Aleutian District.

TABLE 12—FINAL 2012 AND 2013 BSAI AFA LISTED CATCHER/PROCESSOR PROHIBITED SPECIES SIDEBOARD LIMITS

2012 and 2013 2012 and 2013 Ratio of PSC PSC available catcher/proc- PSC species and area1 catch to total to trawl vessels PSC after subtraction essor sideboard limit 2 of PSQ 2

Halibut mortality BSAI ...... n/a n/a 286 Red king crab zone 1 ...... 0.007 86,621 606 C. opilio (COBLZ) ...... 0.153 6,277,361 960,436 C. bairdi Zone 1 ...... 0.14 875,140 122,520 C. bairdi Zone 2 ...... 0.05 2,652,210 132,611 1 Refer to § 679.2 for definitions of areas. 2 Halibut amounts are in metric tons of halibut mortality. Crab amounts are in numbers of animals.

AFA Catcher Vessel Sideboard Limits cooperatives in the directed pollock September 14, 2007). Tables 13 and 14 Pursuant to § 679.64(a), the Regional fishery. Section 679.64(b) establishes a list the 2012 and 2013 AFA CV Administrator is responsible for formula for setting AFA CV groundfish sideboard limits. restricting the ability of AFA CVs to and PSC sideboard limits for the BSAI. All catch of groundfish sideboard engage in directed fishing for groundfish The basis for these sideboard limits is species made by non-exempt AFA CVs, species other than pollock to protect described in detail in the final rules whether as targeted catch or incidental participants in other groundfish implementing the major provisions of catch, will be deducted from the 2012 fisheries from adverse effects resulting the AFA (67 FR 79692, December 30, and 2013 sideboard limits listed in from the AFA and from fishery 2002) and Amendment 80 (72 FR 52668, Table 13.

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TABLE 13—FINAL 2012 AND 2013 AMERICAN FISHERIES ACT CATCHER VESSEL BSAI GROUNDFISH SIDEBOARD LIMITS [Amounts are in metric tons]

Ratio of 1995– 2012 AFA 2013 AFA 1997 AFA CV 2012 initial 2013 initial Species/gear Fishery by area/season 1 catcher vessel 1 catcher vessel catch to 1995– TAC sideboard limits TAC sideboard limits 1997 TAC

Pacific cod/Jig gear ...... BSAI ...... 0 n/a 0 n/a 0 Pacific cod/Hook-and- BSAI Jan 1–Jun 10 ...... 0.0006 237 0 239 0 line CV. BSAI Jun 10–Dec 31 ..... 0.0006 228 0 229 0 Pacific cod pot gear CV BSAI Jan 1–Jun 10 ...... 0.0006 9,950 6 10,022 6 BSAI Sept 1—Dec 31 ... 0.0006 9,959 6 9,629 6 Pacific cod CV < 60 feet BSAI ...... 0.0006 4,645 3 4,679 3 LOA using hook-and- line or pot gear. Pacific cod trawl gear BSAI Jan 20–Apr 1 ...... 0.8609 38,117 32,815 38,394 33,053 CV. BSAI Apr 1–Jun 10 ...... 0.8609 5,666 4,878 5,707 4,913 BSAI Jun 10–Nov 1 ...... 0.8609 7,726 6,651 7,783 6,700 Sablefish trawl gear ...... BS ...... 0.0906 948 86 935 85 AI ...... 0.0645 436 28 429 28 Atka mackerel ...... Eastern AI/BS Jan 1– 0.0032 17,190 55 14,154 45 Jun 10. Eastern AI/BS Jun 10– 0.0032 17,190 55 14,154 45 Nov 1. Central AI Jan 1–Jun 10 0.0001 4,806 0 3,966 0 Central AI Jun 10–Nov 1 0.0001 4,806 0 3,966 0 Western AI Jan 1–Jun 0 n/a 0 n/a 0 10. Western AI Jun 10–Nov 0 n/a 0 n/a 0 1. Rock sole ...... BSAI ...... 0.0341 77,691 2,649 77,691 2,649 Greenland turbot...... BS ...... 0.0645 5,296 342 5,109 330 AI ...... 0.0205 2,066 42 1,717 35 Arrowtooth flounder...... BSAI ...... 0.069 21,250 1,466 21,250 1,466 Kamchatka flounder...... BSAI ...... 0.069 15,045 1,038 15,045 1,038 Alaska plaice...... BSAI ...... 0.0441 20,400 900 20,400 900 Other flatfish...... BSAI ...... 0.0441 2,720 120 2,720 120 Flathead sole...... BS ...... 0.0505 30,482 1,539 30,482 1,539 Pacific ocean perch ...... BS ...... 0.1 4,854 485 5,559 556 Eastern AI...... 0.0077 5,019 39 5,751 44 Central AI ...... 0.0025 4,456 11 5,099 13 Western AI ...... 0 n/a 0 n/a 0 Northern rockfish ...... BSAI ...... 0.0084 4,700 39 4,700 39 Shortraker rockfish ...... BSAI ...... 0.0037 393 1 393 1 Rougheye rockfish ...... EBS/EAI ...... 0.0037 231 1 241 1 CAI/WAI ...... 0.0037 244 1 258 1 Other rockfish ...... BS ...... 0.0048 500 2 500 2 AI ...... 0.0095 570 5 570 5 Squids ...... BSAI ...... 0.3827 361 138 361 138 Skates ...... BSAI ...... 0.0541 24,700 1,336 24,746 1,339 Sharks ...... BSAI ...... 0.0541 200 11 200 11 Octopuses ...... BSAI ...... 0.0541 900 49 900 49 Sculpins ...... BSAI ...... 0.0541 5,200 281 5,200 281 1 Aleutians Islands Pacific ocean perch, and BSAI Atka mackerel, flathead sole, and rock sole are multiplied by the remainder of the TAC of that species after the subtraction of the CDQ reserve under § 679.20(b)(1)(ii)(C).

Halibut and crab PSC limits listed in authorize NMFS to close directed allowances annually specified for either Table 14 that are caught by AFA CVs fishing for groundfish other than the midwater pollock or the pollock/ participating in any groundfish fishery pollock for AFA CVs once a 2012 or Atka mackerel/‘‘other species’’ fishery for groundfish other than pollock will 2013 PSC sideboard limit listed in Table categories under regulations at accrue against the 2012 and 2013 PSC 14 is reached. The PSC that is caught by § 679.21(e)(3)(iv). sideboard limits for the AFA CVs. AFA CVs while fishing for pollock in Sections 679.21(d)(8) and 679.21(e)(3)(v) the BSAI will accrue against the bycatch

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TABLE 14—FINAL 2012 AND 2013 AMERICAN FISHERIES ACT CATCHER VESSEL PROHIBITED SPECIES CATCH SIDEBOARD LIMITS FOR THE BSAI 1

AFA catcher ves- 2012 and 2013 2012 and 2013 2 PSC limit after AFA catcher ves- PSC species Target fishery category sel PSC sideboard subtraction of sel PSC sideboard limit ratio PSQ reserves limit

Halibut ...... Pacific cod trawl ...... n/a n/a 887 Pacific cod hook-and-line or pot ...... n/a n/a 2 Yellowfin sole total ...... n/a n/a 101 Rock sole/flathead sole/other flatfish 3 ...... n/a n/a 228 Greenland turbot/arrowtooth/sablefish 4 ...... n/a n/a 0 Rockfish ...... n/a n/a 2 Pollock/Atka mackerel/other species 5 ...... n/a n/a 5 Red king crab Zone 1 46 .. n/a ...... 0.299 86,621 25,900 C. opilio COBLZ 46 ...... n/a ...... 0.168 6,277,361 1,054,597 C. bairdi Zone 1 46 ...... n/a ...... 0.33 875,140 288,796 C. bairdi Zone 2 6 ...... n/a ...... 0.186 2,652,210 493,311 1 Halibut amounts are in metric tons of halibut mortality. Crab amounts are in numbers of animals. 2 Target fishery categories are defined in regulation at § 679.21(e)(3)(iv). 3 ‘‘Other flatfish’’ for PSC monitoring includes all flatfish species, except for halibut (a prohibited species), flathead sole, Greenland turbot, rock sole, yellowfin sole, Kamchatka flounder, and arrowtooth flounder. 4 Arrowtooth for PSC monitoring includes Kamchatka flounder. 5 ‘‘Other species’’ for PSC monitoring includes sculpins, sharks, skates, and octopuses. 6 Refer to § 679.2 for definitions of areas.

AFA Catcher/Processor and Catcher catch to support other anticipated determined, in accordance with Vessel Sideboard Directed Fishing groundfish fisheries for the 2012 fishing § 679.20(d)(1)(iii), that NMFS is Closures year. In accordance with prohibiting directed fishing by listed § 679.20(d)(1)(iv), the Regional AFA C/Ps for the species in the Based upon historical catch patterns, Administrator establishes the sideboard specified areas set out in Table 15 and the Regional Administrator has limits listed in Tables 15 and 16 as directed fishing by non-exempt AFA determined that many of the AFA C/P DFAs. Because many of these DFAs will CVs for the species in the specified and CV sideboard limits listed in Tables be reached before the end of the year, areas set out in Table 16. 15 and 16 are necessary as incidental the Regional Administrator has

TABLE 15—FINAL 2012 AND 2013 AMERICAN FISHERIES ACT LISTED CATCHER/PROCESSOR SIDEBOARD DIRECTED FISHING CLOSURES 1 [Amounts are in metric tons]

2012 sideboard 2013 sideboard Species Area Gear types limit limit

Sablefish trawl ...... BS ...... trawl ...... 15 15 AI ...... trawl ...... 0 0 Rock sole ...... BSAI ...... all ...... 2,875 2,875 Greenland turbot ...... BS ...... all ...... 37 36 AI ...... all ...... 10 9 Arrowtooth flounder ...... BSAI ...... all ...... 43 43 Kamchatka flounder ...... BSAI ...... all ...... 30 30 Alaska plaice ...... BSAI ...... all ...... 20 20 Other flatfish 2 ...... BSAI ...... all ...... 158 158 Flathead sole ...... BSAI ...... all ...... 1,097 1,097 Pacific ocean perch ...... BS ...... all ...... 10 11 Eastern AI ...... all ...... 100 115 Central AI ...... all ...... 4 5 Western AI ...... all ...... 30 34 Northern rockfish ...... BSAI ...... all ...... 33 33 Shortraker rockfish ...... BSAI ...... all ...... 7 7 Rougheye rockfish ...... EBS/EAI ...... all ...... 4 4 CAI/WAI ...... all ...... 4 5 Other rockfish 3 ...... BS ...... all ...... 15 15 AI ...... all ...... 15 15 Squids ...... BSAI ...... all ...... 8 8 Skates ...... BSAI ...... all ...... 198 198 Sharks ...... BSAI ...... all ...... 2 2 Octopuses ...... BSAI ...... all ...... 7 7 Sculpins ...... BSAI ...... all ...... 42 42 1 Maximum retainable amounts may be found in Table 11 to 50 CFR part 679. 2 ‘‘Other flatfish’’ includes all flatfish species, except for halibut, flathead sole, Greenland turbot, rock sole, yellowfin sole, Kamchatka flounder, and arrowtooth flounder.

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3 ‘‘Other rockfish’’ includes all Sebastes and Sebastolobus species except for Pacific ocean perch, northern, dark, shortraker, and rougheye rockfish.

TABLE 16—FINAL 2012 AND 2013 AMERICAN FISHERIES ACT CATCHER VESSEL SIDEBOARD DIRECTED FISHING CLOSURES 1 [Amounts are in metric tons]

2012 sideboard 2013 sideboard Species Area Gear types limit limit

Pacific cod ...... BSAI ...... hook-and-line ...... 0 0 BSAI ...... pot ...... 12 12 BSAI ...... CV< 60 feet LOA ...... 3 3 BSAI ...... jig ...... 0 0 Sablefish ...... BS ...... trawl ...... 86 85 AI ...... trawl ...... 28 28 Atka mackerel ...... Eastern AI/BS ...... all ...... 110 90 Central AI ...... all ...... 0 0 Western AI ...... all ...... 0 0 Greenland turbot ...... BS ...... all ...... 342 330 AI ...... all ...... 42 35 Arrowtooth flounder ...... BSAI ...... all ...... 1,466 1,466 Kamchatka flounder ...... BSAI ...... all ...... 1,038 1,038 Alaska plaice ...... BSAI ...... all ...... 900 900 Other flatfish 2 ...... BSAI ...... all ...... 120 120 Flathead sole ...... BSAI ...... all ...... 1,539 1,539 Rock sole ...... BSAI ...... all ...... 2,649 2,649 Pacific ocean perch ...... BS ...... all ...... 485 556 Eastern AI ...... all ...... 39 44 Central AI ...... all ...... 11 13 Western AI ...... all ...... 0 0 Northern rockfish ...... BSAI ...... all ...... 39 39 Shortraker rockfish ...... BSAI ...... all ...... 1 1 Rougheye rockfish ...... BS/EAI ...... all ...... 1 1 CAI/WAI ...... all ...... 1 1 Other rockfish 3 ...... BS ...... all ...... 2 2 AI ...... all ...... 5 5 Squids ...... BSAI ...... all ...... 138 138 Skates ...... BSAI ...... all ...... 1336 1339 Sharks ...... BSAI ...... all ...... 11 11 Octopuses ...... BSAI ...... all ...... 49 49 Sculpins ...... BSAI ...... all ...... 281 281 1 Maximum retainable amounts may be found in Table 11 to 50 CFR part 679. 2 ‘‘Other flatfish’’ includes all flatfish species, except for halibut, flathead sole, Greenland turbot, rock sole, yellowfin sole, Kamchatka flounder, and arrowtooth flounder. 3 ‘‘Other rockfish’’ includes all Sebastes and Sebastolobus species except for Pacific ocean perch, northern, dark, shortraker, and rougheye rockfish.

Response to Comments from the CDQ groups about the with the FMP and with the Magnuson- NMFS received one comment from economic value of Kamchatka flounder Stevens Act and other applicable laws. the Western Alaska Community and whether the CDQ groups intended This action is authorized under 50 Development Association, which to conduct directed fishing for CFR 679.20 and is exempt from review represents the six CDQ groups. Kamchatka flounder in the future. Based under Executive Orders 12866 and Comment: This comment states that on the comment received, NMFS has 13563. the CDQ portion of a Kamchatka determined that Kamchatka flounder is NMFS prepared an EIS for this action flounder fishery would be too small to not a directed fishery of the BSAI under (see ADDRESSES) and made it available to support a viable fishery, and that it section 305(i)(1)(B)(ii)(II). Therefore, the public on January 12, 2007 (72 FR could also constrain other CDQ NMFS will not allocate Kamchatka 1512). On February 13, 2007, NMFS fisheries. Therefore, the CDQ groups flounder to the CDQ Program in the issued the Record of Decision (ROD) for request that NMFS does not allocate final 2012 and 2013 harvest the EIS. In January 2012, NMFS Kamchatka flounder to the CDQ groups specifications. However, NMFS will prepared a Supplemental Information for 2012 or 2013. consider allocating Kamchatka flounder Report (SIR) for this action. Copies of Response: In the proposed 2012 and to the CDQ program if information is the EIS, ROD, and SIR for this action are 2013 harvest specifications NMFS presented in future harvest available from NMFS (see ADDRESSES). requested comments about whether specifications that the status of The EIS analyzes the environmental Kamchatka flounder was a directed Kamchatka flounder as a directed consequences of the groundfish harvest fishery under section 305(i)(1)(B)(ii)(II) fishery of the BSAI has changed. specifications and alternative harvest of the MSA. If it were, NMFS would Classification strategies on resources in the action allocate 10.7 percent of the Kamchatka area. The EIS found no significant flounder TAC to the CDQ program. NMFS has determined that these final environmental consequences of this NMFS specifically requested comments harvest specifications are consistent action and its alternatives. The SIR

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evaluates the need to prepare a Fisheries Act (AFA) C/P and inshore CV they are affiliated with firms with joint Supplemental EIS (SEIS) for the 2012 sectors, Aleut Corporation, and revenues over $4 million. and 2013 groundfish harvest Amendment 80 cooperatives. These The Aleut Corporation is an Alaska specifications. entities are, therefore, also considered Native Corporation that receives an A SEIS should be prepared if (1) the directly regulated. allocation of pollock in the Aleutian agency makes substantial changes in the In 2009, there were 191 individual Islands. The Aleut Corporation is a proposed action that are relevant to catcher vessels with total gross revenues holding company and evaluated environmental concerns; or (2) less than or equal to $4 million. Many according to the SBA criteria at 13 CFR significant new circumstances or of these vessels are members in AFA 121.201, using a $6 million gross annual information exist relevant to inshore pollock cooperatives. Vessels receipts threshold for ‘‘Offices of Other environmental concerns and bearing on that participate in these cooperatives are Holding Companies.’’ Aleut Corporation the proposed action or its impacts (40 considered to be large entities within revenues are believed to exceed this CFR 1502.9(c)(1)). After reviewing the the meaning of the RFA. After threshold, and the Aleut Corporation is information contained in the SIR and accounting for membership in these considered to be a large entity. This SAFE reports, the Regional cooperatives, there are an estimated 103 determination follows the analysis in Administrator has determined that (1) small CVs remaining in the BSAI. the RFA certification for BSAI FMP approval of the 2012 and 2013 harvest In 2009, 18 C/Ps grossed less than $4 Amendment 82. (NMFS–AKR 2005: specifications, which were set according million. Some of these vessels were 413). to the preferred harvest strategy in the affiliated through ownership by the This action does not modify EIS, do not constitute a change in the same business firm. NMFS estimates recordkeeping or reporting action; and (2) there are no significant that these vessels were owned by 11 requirements. new circumstances or information separate firms. By 2011, the vessels in The significant alternatives were relevant to environmental concerns and this group were also affiliated through those considered as alternative harvest bearing on the action or its impacts. membership in two cooperatives (the strategies when the Council selected its Additionally, the 2012 and 2013 harvest Amendment 80 ‘‘Best Use’’ cooperative, preferred harvest strategy in December specifications will result in or the Freezer Longline Conservation 2006. These included the following: environmental impacts within the scope Cooperative). Applying the 2011 firm • Alternative 1: Set TACs to produce of those analyzed and disclosed in the and cooperative affiliations to these fishing mortality rates, F, that are equal EIS. Therefore, supplemental National vessels, NMFS estimates that these 18 to maxFABC, unless the sum of the Environmental Protection Act vessels currently represent two small TACs is constrained by the OY documentation is not necessary to entities. established in the FMPs. This is implement the 2012 and 2013 harvest Through the CDQ program, the equivalent to setting TACs to produce specifications. Council and NMFS allocate a portion of harvest levels equal to the maximum Pursuant to section 604 of the the BSAI groundfish TACs, and permissible ABCs, as constrained by Regulatory Flexibility Act, 5 U.S.C. 601, prohibited species halibut and crab PSC OY. The term ‘‘maxFABC’’ refers to the et seq., a FRFA was prepared for this limits, to 65 eligible Western Alaska maximum permissible value of FABC action. The FRFA incorporates the communities. These communities work under Amendment 56 to the groundfish IRFA, and includes a summary of the through six non-profit CDQ groups, and FMPs. Historically, the TAC has been significant issues raised by public are required to use the proceeds from set at or below the ABC, therefore, this comments in response to the IRFA, and the CDQ allocations to start or support alternative represents a likely upper NMFS’ responses to those comments, activities that will result in ongoing, limit for setting the TAC within the OY and a summary of the analyses regionally based, commercial fishery or and ABC limits. completed to support the action. related businesses. The CDQ groups • Alternative 3: For species in Tiers 1, A copy of the FRFA prepared for this receive allocations through the harvest 2, and 3, set TAC to produce F equal to final rule is available from NMFS (see specifications process, and are directly the most recent 5-year average actual F. ADDRESSES). A description of this regulated by this action, but the 65 For species in Tiers 4, 5, and 6, set TAC action, its purpose, and its legal basis communities are not directly regulated. equal to the most recent 5-year average are contained at the beginning of the Because they are nonprofit entities, the actual catch. For stocks with a high preamble to this final rule and are not CDQ groups are considered small level of scientific information, TACs repeated here. entities for RFA purposes. would be set to produce harvest levels NMFS published the proposed rule on The AFA and Amendment 80 equal to the most recent five year December 27, 2011 (76 FR 80782). The fisheries cooperatives are directly average actual fishing mortality rates. rule was accompanied by an Initial regulated because they receive For stocks with insufficient scientific Regulatory Flexibility Analysis (IRFA), allocations of TAC through the harvest information, TACs would be set equal to which was summarized in the proposed specifications process. However, the the most recent five year average actual rule. The comment period closed on Freezer Longline Conservation catch. This alternative recognizes that January 26, 2012. No comments were Cooperative (FLCC), a voluntary private for some stocks, catches may fall well received on the IRFA. cooperative which became fully below ABCs, and recent average F may The entities directly regulated by this effective in 2010, is not considered to be provide a better indicator of actual F action are those that receive allocations directly regulated. The FLCC runs a than FABC does. of groundfish in the EEZ of the BSAI, catch share program among its • Alternative 4: (1) Set TACs for and in parallel fisheries within State of members, but it does not, itself, receive rockfish species in Tier 3 at F75%. Set Alaska waters, during the annual an allocation under the harvest TACs for rockfish species in Tier 5 at harvest specifications process. These specifications. NMFS allocates TAC to F=0.5M. Set spatially explicit TACs for directly regulated entities include the the freezer longline sector, and the shortraker and rougheye rockfish in the groundfish CVs and C/Ps active in these cooperative members voluntarily BSAI. (2) Taking the rockfish TACs as areas. Direct allocations of groundfish allocate this TAC among themselves via calculated above, reduce all other TACs are also made to certain organizations, the FLCC. The AFA and Amendment 80 by a proportion that does not vary including the CDQ groups, American cooperatives are large entities, since across species, so that the sum of all

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TACs, including rockfish TACs, is equal would have an adverse economic sideboards by delaying this rule’s to the lower bound of the area OY impact on small entities, compared to effectiveness would effectively reduce (1,400,000 mt in the BSAI). This the preferred alternative. the available catch for non-sideboarded alternative sets conservative and Alternative 5, which sets all harvests sectors. Thus, the delay is contrary to spatially explicit TACs for rockfish equal to zero, may also address the public interest in protecting species that are long-lived and late to conservation issues, but would have a traditional fisheries. mature and sets conservative TACs for significant adverse economic impact on If the final harvest specifications are the other groundfish species. small entities. not effective by March 17, 2012, which • Alternative 5: Set TACs at zero. Impacts on marine mammals resulting is the start of the 2012 Pacific halibut Alternative 2 is the preferred from fishing activities conducted under season as specified by the IPHC, the alternative chosen by the Council: Set this rule are discussed in the EIS (see hook-and-line sablefish fishery will not TACs that fall within the range of ABCs ADDRESSES). begin concurrently with the Pacific recommended through the Council Pursuant to 5 U.S.C. 553(d)(3), the halibut IFQ season. Delayed harvest specifications process and TACs Assistant Administrator for Fisheries, effectiveness of this action would result recommended by the Council. Under NOAA, finds good cause to waive the in confusion for sablefish harvesters and this scenario, F is set equal to a constant 30-day delay in effectiveness for this economic harm from unnecessary fraction of maxFABC. The rule, because delaying this rule is discard of sablefish that are caught recommended fractions of maxFABC contrary to the public interest. Plan along with Pacific halibut, as both hook- may vary among species or stocks, based Team review occurred in November and-line sablefish and Pacific halibut on other considerations unique to each. 2011, and Council consideration and are managed under the same IFQ This is the method for determining recommendations occurred in December program. Immediate effectiveness of the TACs that has been used in the past. 2011. Accordingly, NMFS review could final 2012 and 2013 harvest Alternatives 1, 3, 4, and 5 do not both not begin until January 2012. If this specifications will allow the sablefish meet the objectives of this action rule’s effectiveness is delayed, fisheries IFQ fishery to begin concurrently with although they have a smaller adverse that might otherwise remain open under the Pacific halibut IFQ season. Also, the economic impact on small entities than these rules may prematurely close based immediate effectiveness of this action is the preferred alternative. The Council on the lower 2011 and 2012 harvest required to provide consistent rejected these alternatives as harvest specifications (76 FR 11139, March 1, management and conservation of fishery strategies in 2006, and the Secretary did 2011). If implemented immediately, this resources based on the best available so in 2007. Alternative 1 would lead to rule would allow these fisheries to scientific information. This is TACs whose sum exceeds the fishery continue fishing without worrying about particularly true of those species which OY, which is set out in statute and the a potential closure, because the new have lower 2012 ABCs and TACs than FMP. As shown in Table 1, the sum of TACs are higher than the ones under those established in the 2011 and 2012 ABCs in 2012 and 2013 would be which they are currently fishing. Certain harvest specifications (76 FR 11139, 2,511,778 and 2,639,792 million mt. fisheries, such as those for pollock and March 1, 2011). Immediate effectiveness Both of these are substantially in excess Pacific cod are intensive, fast-paced also would give the fishing industry the of the fishery OY for the BSAI. This fisheries. Other fisheries, such as those earliest possible opportunity to plan and would be inconsistent with the for flatfish, rockfish, octopuses, conduct its fishing operations with objectives of this action, in that it would sculpins, sharks, skates, and squids, are respect to new information about TAC violate the Consolidated Appropriations critical as directed fisheries and as limits. Therefore, NMFS finds good Act of 2004, Pub. L. No. 108–199, Sec. incidental catch in other fisheries. U.S. cause to waive the 30-day delay in 803(c), and the FMP for the BSAI fishing vessels have demonstrated the effectiveness under 5 U.S.C. 553(d)(3). groundfish fishery, which both set a capacity to catch the TAC allocations in 2,000,000 mt maximum harvest for these fisheries. Any delay in allocating Small Entity Compliance Guide BSAI groundfish. the final TACs in these fisheries would This final rule is a plain language Alternative 3 selects harvest rates cause confusion to the industry and guide to assist small entities in based on the most recent five years’ potential economic harm through complying with this final rule as worth of harvest rates (for species in unnecessary discards. Determining required by the Small Business Tiers 1 through 3) or for the most recent which fisheries may close is impossible Regulatory Enforcement Fairness Act of five years’ worth of harvests (for species because these fisheries are affected by 1996. This final rule’s primary purpose in Tiers 4 through 6). This alternative is several factors that cannot be predicted is to announce the final 2012 and 2013 also inconsistent with the objectives of in advance, including fishing effort, harvest specifications and prohibited this action, because it does not take weather, movement of fishery stocks, species bycatch allowances for the account of the most recent biological and market price. Furthermore, the groundfish fisheries of the BSAI. This information for this fishery. closure of one fishery has a cascading action is necessary to establish harvest Alternative 4 would lead to effect on other fisheries by freeing up limits and associated management significantly lower harvests of all fishing vessels, allowing them to move measures for groundfish during the 2012 species to reduce TACs from the upper from closed fisheries to open ones, and 2013 fishing years and to end of the OY range in the BSAI, to its increasing the fishing capacity in those accomplish the goals and objectives of lower end. This would lead to open fisheries and causing them to close the FMP. This action affects all significant reductions in harvests of at an accelerated pace. fishermen who participate in the BSAI species by small entities. While Additionally, in fisheries subject to fisheries. The specific amounts of OFL, reductions of this size could be declining sideboards, delaying this ABC, TAC, and PSC are provided in associated with offsetting price rule’s effectiveness could allow some tables to assist the reader. NMFS will increases, the size of these increases is vessels inadvertently reach or exceed announce closures of directed fishing in very uncertain, and there can be no their new sideboard levels. Because the Federal Register and information confidence that they would be sufficient sideboards are intended to protect bulletins released by the Alaska Region. to offset the volume decreases and leave traditional fisheries in other sectors, Affected fishermen should keep revenues unchanged. Thus, this action allowing one sector to exceed its new themselves informed of such closures.

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Authority: 16 U.S.C. 773 et seq.; 16 U.S.C. L. 108–447; Pub. L. 109–241; Pub. L. 109– Dated: February 15, 2012. 1540(f); 16 U.S.C. 1801 et seq.; 16 U.S.C. 479. Alan D. Risenhoover, 3631 et seq.; Pub. L. 105–277; Pub. L. 106– Acting Deputy Assistant Administrator for 31; Pub. L. 106–554; Pub. L. 108–199; Pub. Regulatory Programs, National Marine Fisheries Service. [FR Doc. 2012–4106 Filed 2–22–12; 8:45 am] BILLING CODE 3510–22–P

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Proposed Rules Federal Register Vol. 77, No. 36

Thursday, February 23, 2012

This section of the FEDERAL REGISTER M–30, West Building Ground Floor, consider all comments received by the contains notices to the public of the proposed Room W12–140, 1200 New Jersey closing date and may amend this issuance of rules and regulations. The Avenue SE., Washington, DC 20590. proposed AD based on those comments. purpose of these notices is to give interested • Hand Delivery: U.S. Department of We will post all comments we persons an opportunity to participate in the Transportation, Docket Operations, receive, without change, to http:// rule making prior to the adoption of the final www.regulations.gov, including any rules. M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey personal information you provide. We Avenue SE., Washington, DC, between will also post a report summarizing each DEPARTMENT OF TRANSPORTATION 9 a.m. and 5 p.m., Monday through substantive verbal contact we receive Friday, except Federal holidays. about this proposed AD. For service information identified in Federal Aviation Administration Discussion this proposed AD, contact Airbus SAS— 14 CFR Part 39 Airworthiness Office—EAL, 1 Rond The European Aviation Safety Agency Point Maurice Bellonte, 31707 Blagnac (EASA), which is the Technical Agent [Docket No. FAA–2012–0152; Directorate for the Member States of the European Identifier 2011–NM–059–AD] Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email Community, has issued EASA RIN 2120–AA64 [email protected]; Airworthiness Directive 2011–0007R1, Internet http://www.airbus.com. You dated February 14, 2011 (referred to Airworthiness Directives; Airbus may review copies of the referenced after this as ‘‘the MCAI’’), to correct an Airplanes service information at the FAA, unsafe condition for the specified AGENCY: Federal Aviation Transport Airplane Directorate, 1601 products. The MCAI states: Administration (FAA), DOT. Lind Avenue SW., Renton, Washington. Two operators have reported cases of some ACTION: Notice of proposed rulemaking For information on the availability of sheared fasteners on the outside skin of the forward cargo door, detected during walk (NPRM). this material at the FAA, call 425–227– 1221. around checks. Further inspections revealed SUMMARY: We propose to adopt a new crack findings on the frame (FR) fork ends. Examining the AD Docket In addition, during a scheduled airworthiness directive (AD) for all maintenance check, the aft cargo door frame Airbus Model A330–200 series You may examine the AD docket on 64A of an aeroplane has been found cracked airplanes; Airbus Model A330–200 the Internet at http:// for a length of more than 3 inches. Outer skin Freighter series airplanes; Airbus Model www.regulations.gov; or in person at the rivets were also found sheared. At time of A330–300 series airplanes; Airbus Docket Operations office between 9 a.m. findings the aeroplane had accumulated Model A340–200 series airplanes; and and 5 p.m., Monday through Friday, 10564 flight cycles (FC), i.e. below the 12000 Airbus Model A340–300 series except Federal holidays. The AD docket FC threshold defined in DGAC [Direction airplanes. This proposed AD was contains this proposed AD, the Ge´ne´rale de l’Aviation Civile] France AD F– regulatory evaluation, any comments 2001–124(B) and DGAC France AD F–2001– prompted by reports of sheared 126(B) [which corresponds with FAA AD fasteners located on the outside skin of received, and other information. The 2001–16–01, Amendment 39–12369 (66 FR the forward cargo door and cracks on street address for the Docket Operations 40874, August 6, 2001], which require a the frame fork ends, as well as cracks of office (telephone (800) 647–5527) is in special detailed inspection of the aft cargo the aft cargo door frame 64A. This the ADDRESSES section. Comments will compartment door. proposed AD would require performing be available in the AD docket shortly In case of cracked or ruptured (forward or a detailed inspection of the outer skin after receipt. aft) cargo door frame, the loads will be transferred to the remaining structural rivets at the frame fork ends of the FOR FURTHER INFORMATION CONTACT: elements. Such second load path is able to forward and aft cargo door for sheared, Vladimir Ulyanov, Aerospace Engineer, sustain the loads for a limited number of loose, and missing rivets, repairing the International Branch, ANM–116, flight cycles only. Rupture of two vertical outer skin rivets, if necessary, and Transport Airplane Directorate, FAA, frames could result in the loss of the performing repetitive inspections. We 1601 Lind Avenue SW., Renton, structural integrity of the forward or aft cargo are proposing this AD to detect and Washington 98057–3356; telephone door. correct sheared, loose or missing (425) 227–1138; fax (425) 227–1149. For the above described reasons, this AD requires repetitive detailed visual inspections fasteners on the forward and aft cargo SUPPLEMENTARY INFORMATION: door frame, which could result in the of the aft and forward cargo doors outer skin Comments Invited for sheared, loose or missing rivets at all loss of structural integrity of the forward frame fork ends and the accomplishment of and aft cargo door. We invite you to send any written the applicable corrective actions [repair if DATES: We must receive comments on relevant data, views, or arguments about necessary]. this proposed AD by April 9, 2012. this proposed AD. Send your comments This [EASA] AD is considered to be an ADDRESSES: You may send comments by to an address listed under the interim action, further actions might be any of the following methods: ADDRESSES section. Include ‘‘Docket No. required to revise/supersede the above • Federal eRulemaking Portal: Go to FAA–2012–0152; Directorate Identifier mentioned DGAC France ADs. 2011–NM–059–AD’’ at the beginning of This [EASA] AD is revised in order to http://www.regulations.gov. Follow the recognize that aeroplanes on which Airbus instructions for submitting comments. your comments. We specifically invite modification 44852 has been embodied in • Fax: (202) 493–2251. comments on the overall regulatory, production are not affected by the repetitive • Mail: U.S. Department of economic, environmental, and energy inspection requirements of this AD on the Aft Transportation, Docket Operations, aspects of this proposed AD. We will Cargo Compartment Door.

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You may obtain further information by detail the scope of the Agency’s Airbus: Docket No. FAA–2012–0152; examining the MCAI in the AD docket. authority. Directorate Identifier 2011–NM–059–AD. We are issuing this rulemaking under Relevant Service Information (a) Comments Due Date the authority described in ‘‘Subtitle VII, We must receive comments by April 9, Airbus has issued the following Part A, Subpart III, Section 44701: 2012. service information: General requirements.’’ Under that • All Operators Telex A330– section, Congress charges the FAA with (b) Affected ADs 52A3084, dated December 20, 2010 (for promoting safe flight of civil aircraft in None. Model A330–200 and A330–300 series air commerce by prescribing regulations (c) Applicability airplanes); for practices, methods, and procedures • This AD applies to Airbus Model A330– All Operators Telex A330– the Administrator finds necessary for 201, –202, –203, –223, –223F, –243, –243F, 52A3085, dated December 20, 2010 (for safety in air commerce. This regulation –301, –302, –303, –321, –322, –323, –341, Model A330–200 and A330–300 series is within the scope of that authority –342, and –343 airplanes; and Model A340– airplanes); because it addresses an unsafe condition 211, –212, –213, –311, –312, and –313 • All Operators Telex A340– that is likely to exist or develop on airplanes; certificated in any category; all 52A4091, dated December 20, 2010 (for products identified in this rulemaking manufacturer serial numbers. Model A340–200 and A340–300 series action. (d) Subject airplanes); and Regulatory Findings Air Transport Association (ATA) of • All Operators Telex A340– America Code 52: Doors. We determined that this proposed AD 52A4092, dated December 20, 2010 (for (e) Reason Model A340–200 and A340–300 series would not have federalism implications airplanes). under Executive Order 13132. This This AD was prompted by reports of proposed AD would not have a sheared fasteners located on the outside skin The actions described in this service of the forward cargo door and cracks on the information are intended to correct the substantial direct effect on the States, on the relationship between the national frame fork ends, as well as cracks of the aft unsafe condition identified in the cargo door frame 64A. We are issuing this AD MCAI. Government and the States, or on the to detect and correct sheared, loose or distribution of power and missing fasteners on the forward and aft FAA’s Determination and Requirements responsibilities among the various cargo door frame, which could result in the of This Proposed AD levels of government. loss of structural integrity of the forward and This product has been approved by For the reasons discussed above, I aft cargo door. the aviation authority of another certify this proposed regulation: (f) Compliance 1. Is not a ‘‘significant regulatory country, and is approved for operation You are responsible for having the actions in the United States. Pursuant to our action’’ under Executive Order 12866; required by this AD performed within the bilateral agreement with the State of 2. Is not a ‘‘significant rule’’ under the compliance times specified, unless the Design Authority, we have been notified DOT Regulatory Policies and Procedures actions have already been done. (44 FR 11034, February 26, 1979); of the unsafe condition described in the (g) Forward Cargo Compartment Door MCAI and service information 3. Will not affect intrastate aviation in Alaska; and Before the accumulation of 6,000 total referenced above. We are proposing this flight cycles since first flight of the airplane AD because we evaluated all pertinent 4. Will not have a significant economic impact, positive or negative, or within 400 flight cycles after the effective information and determined an unsafe date of this AD, whichever occurs later: condition exists and is likely to exist or on a substantial number of small entities Perform a detailed inspection of the outer develop on other products of the same under the criteria of the Regulatory skin rivets at the frame fork ends between type design. Flexibility Act. FR20B and FR25 of the forward cargo door We prepared a regulatory evaluation for sheared, loose, and missing rivets, in Costs of Compliance of the estimated costs to comply with accordance with the instructions of Airbus Based on the service information, we this proposed AD and placed it in the All Operators Telex (AOT) A330–52A3085, AD docket. dated December 20, 2010 (for Model A330– estimate that this proposed AD would 200 and A330–300 series airplanes); or affect about 55 products of U.S. registry. List of Subjects in 14 CFR Part 39 Airbus AOT A340–52A4092, dated December We also estimate that it would take Air transportation, Aircraft, Aviation 20, 2010 (for Model A340–200 and A340–300 about 1 work-hours per product to series airplanes). Thereafter repeat the comply with the basic requirements of safety, Incorporation by reference, inspection at intervals not to exceed 800 total this proposed AD. The average labor Safety. flight cycles. rate is $85 per work-hour. Based on The Proposed Amendment (h) Aft Cargo Compartment Door these figures, we estimate the cost of the Accordingly, under the authority For all airplanes, except those on which proposed AD on U.S. operators to be delegated to me by the Administrator, Airbus Modification 44854 or Modification $4,675, or $85 per product. the FAA proposes to amend 14 CFR part 44852 has been embodied in production, or We have received no definitive data 39 as follows: Airbus Service Bulletin A330–52–3044 or that would enable us to provide cost Airbus Service Bulletin A340–52–4054 has estimates for the on-condition actions PART 39—AIRWORTHINESS been embodied in service: Before the specified in this proposed AD. DIRECTIVES accumulation of 4,000 total flight cycles since first flight of the airplane, or within 400 Authority for This Rulemaking 1. The authority citation for part 39 flight cycles after the effective date of this Title 49 of the United States Code continues to read as follows: AD, whichever occurs later, perform a detailed inspection of outer skin rivets at the specifies the FAA’s authority to issue Authority: 49 U.S.C. 106(g), 40113, 44701. frame fork ends between FR60 and FR64A of rules on aviation safety. Subtitle I, the aft cargo door for sheared, loose or § 39.13 [Amended] section 106, describes the authority of missing rivets, in accordance with the the FAA Administrator. ‘‘Subtitle VII: 2. The FAA amends § 39.13 by adding instructions of Airbus AOT A330–52A3084, Aviation Programs,’’ describes in more the following new AD: dated December 20, 2010 (for Model A330–

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200 and A330–300 series airplanes); or DEPARTMENT OF TRANSPORTATION Internet http://www.airbus.com. For Airbus AOT A340–52A4091, dated December Thales Avionics service information 20, 2010 (for Model A340–200 and A340–300 Federal Aviation Administration identified in this proposed AD, contact series airplanes). Thereafter repeat the Thales Avionics, Retrofit Manager, 105, inspection at intervals not to exceed 400 14 CFR Part 39 ´ ´ flight cycles. Avenue du General Eisenhower, BP [Docket No. FAA–2012–0150; Directorate 63647, 31036 Toulouse Cedex 1, France; (i) Corrective Action Identifier 2011–NM–234–AD] telephone +33 5 61 19 76 95; fax +33 5 If any sheared, loose, or missing rivets are 61 19 68 20; email found during any inspection required by RIN 2120–AA64 [email protected]; Internet paragraph (g) or (h) of this AD: Before further http://www.thalesgroup.com/aerospace. Airworthiness Directives; Airbus flight, repair using a method approved by the You may review copies of the Airplanes Manager, International Branch, ANM–116, referenced service information at the FAA; or European Aviation Safety Agency (EASA) (or its delegated agent). AGENCY: Federal Aviation FAA, Transport Airplane Directorate, Administration (FAA), DOT. 1601 Lind Avenue SW., Renton, (j) Other FAA AD Provisions ACTION: Notice of proposed rulemaking Washington. For information on the The following provisions also apply to this (NPRM). availability of this material at the FAA, AD: call 425–227–1221. (1) Alternative Methods of Compliance SUMMARY: We propose to adopt a new Examining the AD Docket (AMOCs): The Manager, International airworthiness directive (AD) for all Branch, ANM–116, FAA, has the authority to You may examine the AD docket on approve AMOCs for this AD, if requested Airbus Model A318 series airplanes, Airbus Model A319 series airplanes, the Internet at http:// using the procedures found in 14 CFR 39.19. www.regulations.gov; or in person at the In accordance with 14 CFR 39.19, send your Airbus Model A320 series airplanes, request to your principal inspector or local and Airbus Model A321 series Docket Operations office between 9 a.m. Flight Standards District Office, as airplanes. This proposed AD was and 5 p.m., Monday through Friday, appropriate. If sending information directly prompted by reports of oil residue except Federal holidays. The AD docket to the International Branch, send it to ATTN: between the stator and the rotor parts of contains this proposed AD, the Vladimir Ulyanov, Aerospace Engineer, the position resolvers of the angle of regulatory evaluation, any comments International Branch, ANM–116, Transport attack (AOA) vane, which was a result received, and other information. The Airplane Directorate, FAA, 1601 Lind of incorrect removal of the machining street address for the Docket Operations Avenue SW., Renton, Washington 98057– office (telephone (800) 647–5527) is in 3356; telephone (425) 227–1138; fax (425) oil during the manufacturing process of the AOA resolvers. This proposed AD the ADDRESSES section. Comments will 227–1149. Information may be emailed to: be available in the AD docket shortly [email protected]. would require inspecting to determine if Before using any approved AMOC, notify certain AOA probes are installed, and after receipt. your appropriate principal inspector, or replacing the affected AOA probe if FOR FURTHER INFORMATION CONTACT: lacking a principal inspector, the manager of necessary. We are proposing this AD to Sanjay Ralhan, Aerospace Engineer, the local flight standards district office/ prevent erroneous AOA information and International Branch, ANM–116, certificate holding district office. The AMOC consequent delayed or non-activation of Transport Airplane Directorate, FAA, approval letter must specifically reference 1601 Lind Avenue SW., Renton, this AD. the AOA protection systems which, during flight at a high angle of attack, Washington 98057–3356; telephone (2) Airworthy Product: For any requirement (425) 227–1405; fax (425) 227–1149. in this AD to obtain corrective actions from could result in reduced control of the a manufacturer or other source, use these airplane. SUPPLEMENTARY INFORMATION: actions if they are FAA-approved. Corrective DATES: We must receive comments on Comments Invited actions are considered FAA-approved if they this proposed AD by April 9, 2012. are approved by the State of Design Authority We invite you to send any written (or their delegated agent). You are required ADDRESSES: You may send comments by relevant data, views, or arguments about to assure the product is airworthy before it any of the following methods: this proposed AD. Send your comments is returned to service. • Federal eRulemaking Portal: Go to to an address listed under the http://www.regulations.gov. Follow the (k) Related Information ADDRESSES section. Include ‘‘Docket No. instructions for submitting comments. FAA–2012–0150; Directorate Identifier Refer to MCAI European Aviation Safety • Fax: (202) 493–2251. 2011–NM–234–AD’’ at the beginning of Agency Airworthiness Directive 2011– • Mail: U.S. Department of 0007R1, dated February 14, 2011, and the your comments. We specifically invite service information specified in paragraphs Transportation, Docket Operations, comments on the overall regulatory, (k)(1) through (k)(4) of this AD, for related M–30, West Building Ground Floor, economic, environmental, and energy information. Room W12–140, 1200 New Jersey aspects of this proposed AD. We will (1) Airbus All Operators Telex (AOT) Avenue SE., Washington, DC 20590. consider all comments received by the • A330–52A3085, dated December 20, 2010. Hand Delivery: U.S. Department of closing date and may amend this (2) Airbus AOT A340–52A4092, dated Transportation, Docket Operations, proposed AD based on those comments. December 20, 2010. M–30, West Building Ground Floor, We will post all comments we (3) Airbus AOT A330–52A3084, dated Room W12–140, 1200 New Jersey receive, without change, to http:// December 20, 2010. Avenue SE., Washington, DC, between www.regulations.gov, including any (4) Airbus AOT A340–52A4091, dated 9 a.m. and 5 p.m., Monday through December 20, 2010. personal information you provide. We Friday, except Federal holidays. will also post a report summarizing each Issued in Renton, Washington, on February For Airbus service information substantive verbal contact we receive 14, 2012. identified in this proposed AD, contact about this proposed AD. Ali Bahrami, Airbus, Airworthiness Office—EAS, 1 Manager, Transport Airplane Directorate, Rond Point Maurice Bellonte, 31707 Discussion Aircraft Certification Service. Blagnac Cedex, France; telephone +33 5 The European Aviation Safety Agency [FR Doc. 2012–4208 Filed 2–22–12; 8:45 am] 61 93 36 96; fax +33 5 61 93 44 51; email (EASA), which is the Technical Agent BILLING CODE 4910–13–P [email protected]; for the Member States of the European

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Community, has issued EASA Costs of Compliance under the criteria of the Regulatory Airworthiness Directive 2011–0203, Based on the service information, we Flexibility Act. dated October 13, 2011 (referred to after estimate that this proposed AD would We prepared a regulatory evaluation this as ‘‘the MCAI’’), to correct an unsafe affect about 755 products of U.S. of the estimated costs to comply with condition for the specified products. registry. We also estimate that it would this proposed AD and placed it in the The MCAI states: take about 2 work-hours per product to AD docket. During Airbus Final Assembly Line flight comply with the basic requirements of List of Subjects in 14 CFR Part 39 tests, AoA [angle of attack] data from two this proposed AD. The average labor different aeroplanes were found inaccurate, rate is $85 per work-hour. Based on Air transportation, Aircraft, Aviation which was confirmed by flight data analysis. these figures, we estimate the cost of the safety, Incorporation by reference, Investigation conducted by Airbus and proposed AD on U.S. operators to be Safety. Thales on the removed probes revealed oil $128,350, or $170 per product. residue between the stator and the rotor parts In addition, we estimate that any The Proposed Amendment of the AoA vane position resolvers. This oil necessary follow-on actions would take Accordingly, under the authority residue was the result of incorrect removal of about 3 work-hours and require parts machining oil during the manufacturing delegated to me by the Administrator, costing $0, for a cost of $255 per the FAA proposes to amend 14 CFR part process of the AoA resolvers. At low product. We have no way of temperatures, this oil residue becomes 39 as follows: viscous (typically in cruise), causing delayed determining the number of products and/or reduced AoA vane movement. that may need these actions. PART 39—AIRWORTHINESS Multiple AOA probes could be Authority for This Rulemaking DIRECTIVES simultaneously affected, providing incorrect indications of the AoA of the aeroplane. Title 49 of the United States Code 1. The authority citation for part 39 This condition, if not corrected, could lead specifies the FAA’s authority to issue continues to read as follows: to erroneous AoA information and rules on aviation safety. Subtitle I, Authority: 49 U.S.C. 106(g), 40113, 44701. consequent delayed or non-activation of the section 106, describes the authority of AoA protection systems which, during flight the FAA Administrator. ‘‘Subtitle VII: § 39.13 [Amended] Aviation Programs,’’ describes in more at a high angle of attack, could result in 2. The FAA amends § 39.13 by adding detail the scope of the Agency’s reduced control of the aeroplane. the following new AD: For the reasons described above, this [EASA] authority. AD requires the identification of the serial We are issuing this rulemaking under Airbus: Docket No. FAA–2012–0150; number (s/n) of each installed Thales the authority described in ‘‘Subtitle VII, Directorate Identifier 2011–NM–234–AD. Avionics Part Number (P/N) C16291AA AOA Part A, Subpart III, Section 44701: (a) Comments Due Date probe and the replacement of all suspect General requirements.’’ Under that We must receive comments by April 9, units with serviceable ones. This AD also section, Congress charges the FAA with 2012. prohibits the (re)installation of these same s/ promoting safe flight of civil aircraft in n probes on any aeroplane, unless corrective air commerce by prescribing regulations (b) Affected ADs measures have been accomplished. for practices, methods, and procedures None. You may obtain further information by the Administrator finds necessary for (c) Applicability examining the MCAI in the AD docket. safety in air commerce. This regulation This AD applies to Airbus Model A318– is within the scope of that authority 111, –112, –121, and –122 airplanes; Model Relevant Service Information because it addresses an unsafe condition A319–111, –112, –113, –114, –115, –131, that is likely to exist or develop on –132, and –133 airplanes; Model A320–111, Airbus has issued Service Bulletin products identified in this rulemaking –211, –212, –214, –231, –232, and –233 A320–34–1452, including Appendix 01, action. airplanes; and Model A321–111, –112, –131, dated January 29, 2010. Thales Avionics –211, –212, –213, –231, and –232 airplanes; has issued Service Bulletin C16291A– Regulatory Findings certificated in any category; all manufacturer 34–007, Revision 01, dated December 3, We determined that this proposed AD serial numbers. 2009. The actions described in this would not have federalism implications (d) Subject service information are intended to under Executive Order 13132. This correct the unsafe condition identified Air Transport Association (ATA) of proposed AD would not have a America Code 34: Navigation. in the MCAI. substantial direct effect on the States, on (e) Reason FAA’s Determination and Requirements the relationship between the national This AD was prompted by reports of oil of This Proposed AD Government and the States, or on the distribution of power and residue between the stator and the rotor parts This product has been approved by responsibilities among the various of the position resolvers of the angle of attack (AOA) vane, which was a result of incorrect the aviation authority of another levels of government. removal of the machining oil during the country, and is approved for operation For the reasons discussed above, I manufacturing process of the AOA resolvers. in the United States. Pursuant to our certify this proposed regulation: We are issuing this AD to prevent erroneous bilateral agreement with the State of 1. Is not a ‘‘significant regulatory AOA information and consequent delayed or Design Authority, we have been notified action’’ under Executive Order 12866; non-activation of the AOA protection of the unsafe condition described in the 2. Is not a ‘‘significant rule’’ under the systems which, during flight at a high angle MCAI and service information DOT Regulatory Policies and Procedures of attack, could result in reduced control of referenced above. We are proposing this (44 FR 11034, February 26, 1979); the airplane. AD because we evaluated all pertinent 3. Will not affect intrastate aviation in (f) Compliance information and determined an unsafe Alaska; and You are responsible for having the actions condition exists and is likely to exist or 4. Will not have a significant required by this AD performed within the develop on other products of the same economic impact, positive or negative, compliance times specified, unless the type design. on a substantial number of small entities actions have already been done.

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(g) Inspection certificate holding district office. The AMOC rule regarding the proposed cap on Except as provided by paragraph (h) of this approval letter must specifically reference ‘‘seller concessions’’ and revises the AD: Within 12 months after the effective date this AD. proposed cap in response. HUD is of this AD, inspect to determine the part (2) Airworthy Product: For any requirement seeking comment for 30 days on this number and serial number of each Thales in this AD to obtain corrective actions from a manufacturer or other source, use these revised proposal for limiting seller Avionics AOA probe, in accordance with the concessions. Accomplishment Instructions of Airbus actions if they are FAA-approved. Corrective Service Bulletin A320–34–1452, excluding actions are considered FAA-approved if they DATES: Comment Due Date March 26, Appendix 01, dated January 29, 2010. If any are approved by the State of Design Authority 2012. probe is found having part number (P/N) (or their delegated agent). You are required to assure the product is airworthy before it FOR FURTHER INFORMATION CONTACT C16291AA and having a serial number listed : is returned to service. in Thales Avionics Service Bulletin Karin Hill, Director, Office of Single C16291A–34–007, Revision 01, dated (k) Related Information Family Program Development, Office of December 3, 2009: Within 12 months after Refer to MCAI European Aviation Safety Housing, Department of Housing and the effective date of this AD, replace the AOA Agency Airworthiness Directive 2011–0203, Urban Development, 451 7th Street SW., probe, in accordance with the dated October 13, 2011; Airbus Service Room 9278, Washington, DC 20410; Accomplishment Instructions of Airbus Bulletin A320–34–1452, excluding Appendix telephone number 202–708–4308 (this Service Bulletin A320–34–1452, excluding 01, dated January 29, 2010; and Thales is not a toll-free number). Persons with Appendix 01, dated January 29, 2010. A Avionics Service Bulletin C16291A–34–007, review of airplane maintenance records is hearing or speech impairments may Revision 01, dated December 3, 2009; for access this number through TTY by acceptable in lieu of this inspection if the related information. part number and serial number of the calling the toll-free Federal Relay installed AOA probes can be conclusively Issued in Renton, Washington, on February Service at 800–877–8339. 6, 2012. determined from that review. SUPPLEMENTARY INFORMATION: Ali Bahrami, (h) Exception Manager, Transport Airplane Directorate, I. Background For any airplane on which Airbus Aircraft Certification Service. modification 150006 (installation of Thales A. HUD’s July 15, 2010 Notice [FR Doc. 2012–4209 Filed 2–22–12; 8:45 am] Avionics AOA probes On July 15, 2010, at 75 FR 41217, P/N C16291AB) or modification 26934 BILLING CODE 4910–13–P HUD issued a notice seeking comment (installation of Goodrich AOA probes P/N on three initiatives that HUD proposed 0861ED) has been embodied in production would contribute to the restoration of and on which no AOA probe replacement DEPARTMENT OF HOUSING AND the Mutual Mortgage Insurance Fund has been made since first flight: The actions URBAN DEVELOPMENT specified in paragraph (g) of this AD are not (MMIF) capital reserve account. The required. 24 CFR Chapter II proposed changes were developed to preserve both the historical role of the (i) Parts Installation [Docket No. FR–5572–N–01] Federal Housing Administration (FHA) As of the effective date of this AD, no in providing a home financing vehicle person may install a Thales Avionics AOA Federal Housing Administration (FHA) during periods of economic volatility probe, P/N C16291AA, having a serial Risk Management Initiatives: Revised and HUD’s social mission of helping number listed in Thales Avionics Service Seller Concessions Bulletin C16291A–34–007, Revision 01, underserved borrowers. In the July 15, dated December 3, 2009, on any airplane, AGENCY: Office of the Assistant 2010, notice, HUD proposed the unless that Thales Avionics probe has been Secretary for Housing—Federal Housing following: (1) To reduce the amount of inspected, re-identified and tested, in Commissioner, HUD. closing costs a seller (or other interested accordance with the Accomplishment ACTION: Request for comments. third parties) may pay on behalf of a Instructions of Thales Avionics Service homebuyer purchasing a home with Bulletin C16291A–34–007, Revision 01, SUMMARY: On July 15, 2010 (75 FR FHA-insured mortgage financing for the dated December 3, 2009. 41217), HUD issued a notice seeking purposes of calculating the maximum (j) Other FAA AD Provisions comment on three initiatives that HUD mortgage amount; (2) to introduce a The following provisions also apply to this proposed would contribute to the credit score threshold, as well as reduce AD: restoration of the Mutual Mortgage the maximum loan-to-value (LTV) for (1) Alternative Methods of Compliance Insurance Fund (MMIF) capital reserve borrowers with lower credit scores who (AMOCs): The Manager, International account. On September 3, 2010 (75 FR represent a higher risk of default and Branch, ANM–116, Transport Airplane 54020), HUD published a follow-up mortgage insurance claim; and (3) to Directorate, FAA, has the authority to final rule implementing the proposal to tighten underwriting standards for approve AMOCs for this AD, if requested introduce a minimum credit score and mortgage loan transactions that are using the procedures found in 14 CFR 39.19. reduce the maximum loan-to-value ratio manually underwritten. In accordance with 14 CFR 39.19, send your request to your principal inspector or local for FHA single family mortgage Over the past 3 years, the volume of Flight Standards District Office, as insurance. HUD is in the process of FHA insurance has increased rapidly as appropriate. If sending information directly implementing another notice tightening private sources of mortgage finance to the International Branch, send it to Attn: the underwriting standards for mortgage retreated from the market. FHA’s share Sanjay Ralhan, Aerospace Engineer, loan transactions that are manually of the single-family mortgage market International Branch, ANM–116, Transport underwritten. This document addresses was estimated at 17 percent (33 percent Airplane Directorate, FAA, 1601 Lind the third proposal; namely, the proposal for home purchase mortgages) in Fiscal Avenue SW., Renton, Washington 98057– to reduce the amount of closing costs a Year (FY) 2010, up from 3.4 percent in 3356; telephone (425) 227–1405; fax (425) seller may pay on behalf of a homebuyer FY 2007, and the dollar volume of 227–1149. Information may be emailed to: [email protected]. purchasing a home with financing insurance written has jumped from the Before using any approved AMOC, notify insured by the Federal Housing $77 billion issued in FY 2007 to $319 your appropriate principal inspector, or Administration (FHA). This document billion in FY 2010. The growth in the lacking a principal inspector, the manager of takes into consideration the public MMIF portfolio over such a short period the local flight standards district office/ comments on the July 15, 2010, final of time coincided with worsening

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economic conditions that have seen in the maximum LTV ratio for FHA limited or nontraditional credit history, high levels of defaults and foreclosures single family mortgage insurance. The a credit score may not have been issued and, consequently, unacceptable risks of September 3, 2010, final rule also by the credit bureaus, or the credit score loss to the MMIF.1 The National contained a discussion of the public may be based on references that are few Housing Act (12 U.S.C. 1701 et seq.), comments received in response to the in number or do not effectively predict which authorizes FHA’s mortgage new credit score and LTV requirements. future credit worthiness. Mortgage loans insurance, envisions that FHA will The final rule advised that HUD’s for borrowers in this category are adjust program standards and practices, decision on the two other proposals manually underwritten as are all as necessary, to operate the MMIF on a described in the July 15, 2010, notice ‘‘Refer’’ risk classifications provided by financially sound basis. would be addressed separately. FHA’s TOTAL Mortgage Score Card. The independent actuarial study Commencing on October 4, 2010, These categories of borrowers require a conducted in 2009 showed that the borrowers were required to have a more extensive review that can be MMIF capital ratio has fallen below its minimum decision credit score of no tailored to circumstances to discern the statutorily mandated threshold.2 less than 500 to be eligible for FHA level of risk. Manual underwriting Consistent with HUD’s responsibility financing. The LTV for FHA-insured guidelines are generally more stringent under the National Housing Act to mortgage loans (purchase and refinance) to address that higher risk level. The ensure that the MMIF remains is limited to 90 percent for borrowers final rule will consider factors for financially sound, HUD published the with a decision score between 500 and manually underwritten mortgage loans. 579. Maximum FHA-insured financing July 15, 2010, notice and sought public II. This Notice—Reduction of Seller comment on the three proposals (96.5 percent LTV for purchase transactions and 97.75 percent for rate- Concession: Revised Proposal for described above. The July 15, 2010, Reducing Seller Concessions notice represented another step in and-term refinance transactions) HUD’s effort to preserve the MMIF and continues to be available for borrowers This notice revises the third proposal preserve FHA as a source of available with credit scores at or above 580. contained in the July 15, 2010, notice; credit for affordable home mortgages. However, FHA is providing a special, namely, the proposed cap on the Interested parties are referred to the July temporary allowance to permit higher amount of ‘‘seller concessions’’ that can 15, 2010, notice for details regarding the LTV mortgage loans for borrowers with be considered as offsets to actual closing proposed changes to FHA requirements. lower decision credit scores, so long as costs rather than inducements to they involve a reduction of existing purchase. When a homeseller pays all or B. The September 3, 2010 Final Rule mortgage indebtedness pursuant to FHA part of the buyer’s closing costs and Implementing New Credit Score and program adjustments announced in other fees, such payments are referred to Loan-to-Value Requirements HUD Mortgagee Letter 2010–23. as seller concessions. Seller concessions At the close of the public comment Interested readers are referred to the include any payment toward the period on August 16, 2010, HUD had September 3, 2010, final rule and HUD borrower’s closing costs and other fees, received 902 public comments in Mortgagee Letter 2010–29 for additional by any third party with an interest in response to the July 15, 2010, notice. information regarding the new credit the transaction, including the seller, The majority of the public comments score and LTV requirements. All HUD builder, developer, mortgage broker, focused on the reduction in seller Mortgagee Letters are available at: lender, or Settlement Company. HUD’s concessions. In order to provide the http://www.hud.gov/offices/adm/ existing policy defining seller necessary additional time to consider hudclips/letters/mortgagee/. concessions provides that any concessions exceeding 6 percent must the issues raised by the commenters, C. Proposed Final Rule Implementing HUD decided to separately implement be treated as inducements to purchase, Revised Manual Underwriting resulting in a reduction in the FHA the three proposals contained in the July Requirement 15, 2010, notice. mortgage amount. On September 3, 2010, at 75 FR HUD is in the process of finalizing a rule implementing the revised manual A. Changes to the July 15, 2010, Notice 54020, HUD published a final rule In the July 15, 2010, notice, HUD implementing the introduction of a underwriting requirements and addressing the public comments proposed to cap the seller concessions minimum credit score and the reduction received on this proposal in response to in FHA-insured, single-family mortgage the July 15, 2010, notice. The new transactions at 3 percent of the lesser of 1 While the Federal Credit Reform Act of 1990 requires that FHA (and all other government credit manual underwriting requirements will the sales price or appraised value, for agencies) estimate and budget for the anticipated reduce the risk to the MMIF and ensure the purpose of calculating the maximum cost of mortgage loan guarantees, the National that homebuyers are offered mortgage insured mortgage amount, reducing it Housing Act imposes a special requirement that the loans that are sustainable. from the 6 percent limitation currently MMIF hold an additional amount of funds in reserve to cover unexpected losses. FHA maintains As discussed in the July 15, 2010, in place. As discussed in the July 15, these back-up funds in the MMIF capital reserve notice, the purpose of mortgage 2010, notice, conventional mortgage account, a special reserve account. underwriting is to determine a lenders have capped allowances for 2 On November 13, 2009, HUD released an borrower’s ability and willingness to seller concessions at 3 percent of the independent actuarial study that reported that FHA will likely sustain significant losses from mortgage repay the debt and to limit the sales price on loans with LTV ratios loans made prior to 2009, due to the high probability of default. An underwriter similar to FHA. Loans guaranteed by the concentration of seller-financed downpayment must consider a borrower’s credit Department of Veterans Affairs have a assistance mortgage loans and declining real estate history, evaluate the borrower’s capacity cap on seller concessions of 4 percent of values nationwide, and that the MMIF capital reserve relative to the amount of outstanding to repay the loan based on income and the sales price. In the July 15, 2010, insurance in force had fallen below the statutorily current debt, determine if cash to be notice, HUD also provided statistical mandated 2 percent ratio. The capital ratio used for closing is sufficient and from data illustrating a higher incidence of generally reflects the reserves available (net of an acceptable source, and determine if home loss for borrowers who received expected claims and expenses), as a percentage of the current portfolio, to address unexpected losses. the value of the collateral supports the seller concessions in excess of 3 The report can be found at: http://www.hud.gov/ amount of money being borrowed. In percent. The proposed cap was designed offices/hsg/fhafy09annualmanagementreport.pdf. cases where the borrower has a very to align FHA’s single-family mortgage

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insurance programs to industry practice Stabilization programs, for which the concessions on higher-priced homes, and reduce home loss among allowance remains at 6 percent. which under currently policy could be homebuyers relying on FHA-insured • Limit acceptable uses of seller as high as $43,785.4 Concession financing. Of the homebuyers with concessions to payments toward amounts above the revised-proposal FHA-insured mortgages, 82 percent of borrower closing costs, prepaid items, limit would not be prohibited, but such homebuyers make only the discount points, the FHA Up Front rather would result in a dollar-for-dollar minimum required downpayment of 3.5 Mortgage Insurance Premium, and any reduction in the sales price for the percent. It is important, therefore, for Interest Rate Buydown. This revised purpose of calculating the maximum HUD to assure that allowable mortgage definition eliminates payment insured loan amount. amounts are appropriately adjusted for supplements such as homeowner or what may actually be inducements to condominium association fees, mortgage B. Definition of Acceptable Concessions interest payments, and mortgage purchase. For borrowers having more As part of the revised proposal on than the minimum required payment protection plans. To address potential future increases reducing seller concessions, HUD is also downpayment of 3.5 percent, this rule proposing to narrow the definition of may or may not affect them. in closing costs, the $6,000 cap established in this notice is not static acceptable concessions. In this new As noted in the preamble, the but tied to an index. The dollar definition, HUD continues to permit majority of the 902 public comments limitation may increase annually, and at sellers to pay for the borrower’s actual received in response to the July 15, the same percentage rate as the FHA costs to close on the loan, as well as pay 2010, notice pertained to the proposed national loan limit floor, rounded up to the Up Front Mortgage Insurance cap on seller concessions. Comments the nearest $100 for anything at or above Premium due on the loan and fund an were submitted by mortgage lenders, $50 increments and rounded down to Interest Rate Buydown.5 What HUD credit unions, realtors, home builders, the nearest $100 for anything below $50 proposes to eliminate are payment state housing finance agencies, and increments. For example, should the supplements offered by sellers, such as other interested organizations. After FHA national loan limit floor rise by 1.5 a year’s worth of homeowner careful consideration of the issues percent, then the cap may increase to association fees, 6 months’ worth of raised by the commenters, HUD has $6,100. Any increase in the dollar mortgage interest, or mortgage payment decided to make the following changes limitation will be announced via protection plans. HUD believes that to the proposed cap to seller mortgagee letter, most likely in the same these types of payment supplements, concessions and seek public comment mortgagee letter that announces the new while permissible under current seller on those changes: FHA loan limits for the upcoming concession guidance, are really • Reduce the amount of seller calendar year. inducements to purchase and should be concessions permitted as offsets to This revised proposal takes into treated as such. The impact of this actual closing costs to 3 percent 3 or consideration the disproportionately revised definition should be minimal on $6,000, whichever is greater, but not negative impact an across-the-board the housing market since the loan level allow the offsets, in any event, to exceed reduction to 3 percent would have had review of FHA-insured loans revealed the borrower’s actual costs. This on borrowers with low and moderate that sellers typically offer concessions reduction in concession allowances incomes who are purchasing modestly that pay for borrowers’ actual costs to does not apply to HUD’s Real Estate priced homes. It also appropriately acquire the property, and not payment Owned homes and Neighborhood limits the dollar amount of seller supplements.

Current seller concession definition Proposed seller concession definition

The seller and/or interested third party may contribute towards the buy- The seller and/or interested third party may contribute towards the buy- er’s: er’s: • Closing Costs • Closing Costs • Prepaid Expenses • Prepaid Expenses • Discount Points • Discount Points • Interest Rate Buydowns and other payment supplements (i.e. • UFMIP Homeowner Association fees) • Interest Rate Buydowns • Payments of mortgage interest for fixed-rate mortgages All other third-party contributions are considered inducements to pur- • Mortgage Payment Protection Insurance and Up-Front Mortgage chase, resulting in a dollar-for-dollar reduction to the lesser of sale Insurance Premium price or appraised value before applying the appropriate LTV factor All other third-party contributions are considered inducements to pur- (96.5%). This excludes closing costs and prepaid items paid by the chase, resulting in a dollar-for-dollar reduction to the lesser of sale lender through premium (rebate) pricing. price or appraised value before applying the appropriate LTV factor (96.5%). This excludes closing costs and prepaid items paid by the lender through premium (rebate) pricing.

Closing costs vary from borrower to slightly different ways. The definition of Fixed costs are those that are a fixed borrower, lender to lender, and state to closing costs for HUD’s analysis dollar amount, are not tied to a state. These costs even vary from closing included fixed and variable closing percentage of the loan amount, and are cost study to closing cost study, because costs, but not prepaid expenses, because generally offered within a dollar range. each study defines closing costs in prepaid expenses are typically financed. Variable costs are those that are based

3 The percentage is based on the lesser of sales 5 Interest Rate Buydowns are designed to reduce the difference between the principal and interest price or appraised value. the borrower’s monthly payment during the early payment (P&I) at the Note rate, and the P&I at the 4 That amount is 6 percent of FHA’s current years of the mortgage. At settlement, an escrow buydown rate. For more information on FHA national mortgage limit ceiling of $729,750. account is established and each month, the requirements for Interest Rate Buydowns, see HUD servicing lender draws down an amount equal to Handbook 4155.1 6.A.2.

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on a percentage of the loan amount, or account, as well as state and local Premium is also included in this property value. Prepaid items include property taxes and per diem interest. category, and it is typically prepaid by funds needed to establish an escrow FHA’s Upfront Mortgage Insurance financing into the mortgage amount.

CATEGORIES OF CLOSING COSTS

Fixed Variable Prepaid

Appraisal ...... Adjusted Origination Charge ...... Hazard/Homeowners Insurance. Credit Report ...... Lender’s Title Insurance ...... Flood Insurance. Survey ...... Lender’s Title Insurance ...... Homeowners/Condominium Association Fees. Pest Inspection ...... Owner’s Title Insurance ...... Upfront Mortgage Insurance Premium. Title Services ...... Transfer Tax ...... Taxes. Lien Certification ...... Per Diem Interest. Flood Certification Flood Determination Lender Inspection

In the July 15, 2010, notice, HUD definition of Interested Third Party but vague and possibly subject to varied clarified the definition of Interested clarifying the definition where it was interpretation. Third Party. HUD is not revising the

Current interested third party definition Clarification of interested third party definition

Seller or other interested parties such as real estate agents, builders, Seller or other interested party such as a real estate agent, builder, de- developers, etc., or combination of these parties. veloper, mortgage broker, lender, and/or settlement company.

C. Statutory Authority prepayment period ends, become the more of his own funds is clearly rooted FHA has determined that maintaining financial burden of the mortgagor. FHA in this statutory provision of the National Housing Act. the amount of eligible seller concessions has found that the seller concessions 3. Fiduciary Duty to the MMIF. The at 6 percent of the sales price of the such as prepayment of taxes or determination to decrease the allowable property increases the risk of default homeowner association fees, which then become due a year or two later, can amount of seller concessions is part of and claim payment by FHA from the FHA’s ongoing risk management insurance fund. FHA’s determination is result in mortgagors experiencing mortgage payment shock and practices. FHA is a large government solidly based on statutory grounds in insurance corporation, and has both the National Housing Act and the subsequent default. This example of an impact on a mortgagor’s reasonable statutorily mandated requirements Department of Housing and Urban placed upon it to manage its financial Development Act (42 U.S.C. 3531 et ability to pay illustrates a clear statutory basis under section 203(b)(4) of the affairs prudently. One of the statutes seq.) There are five specific statutory with such a mandate is found at section areas that support the action by FHA to National Housing Act for issuing this notice. 202(a)(3) of the National Housing Act. reduce the amount of allowable seller Under that section, the Secretary has a concessions for FHA purposes: (1) The 2. Money to close. Section fiduciary duty to ensure that the MMIF mortgagor’s ability to pay the mortgage; 203(b)(9)(A) of the National Housing remains financially sound. Taking (2) the amount of funds the mortgagor Act, as amended by the Housing and action such as issuing this Notice must have available to close; (3) the Economic Reform Act of 2008 (Pub. L. regarding seller concessions furthers the Secretary’s fiduciary duty to the MMIF; 110–289, approved July 30, 2008), Secretary’s obligation to meet the (4) the capital ratio of the MMIF; and (5) addresses the need for a mortgagor to requirements of this section of the FHA risk management. Each one of make a minimum investment in the National Housing Act. Reducing these five statutory grounds is explained purchase of the mortgaged property. defaults and subsequent claims for in more detail below. Under section 203(b)(9)(A) of the insurance benefits payments from the 1. Ability to pay mortgage payment. National Housing Act, the mortgagor MMIF logically should financially help Section 203(b)(4) of the National shall have paid on account of the the MMIF. Housing Act provides that the mortgage, property an amount equal to not less 4. Capital Ratio of the MMIF. Coupled in order to be eligible for insurance, than 3.5 percent of the appraised value with the fiduciary duty to preserve the must contain complete amortization of the property or such larger amount as MMIF is the statutory requirement to provisions satisfactory to the Secretary the Secretary may determine. The maintain an adequate MMIF capital requiring periodic payments by the reduction in seller concessions impacts ratio. Under section 205(f)(2) of the mortgagor not in excess of his on the funding that the homebuyer has National Housing Act, the Secretary reasonable ability to pay as determined to bring to the table to close. Indirectly, shall ensure that the capital ratio of the by the Secretary. FHA has found that by reducing the amount of seller MMIF is maintained at not less than 2 seller concessions can, in some concessions, the Secretary is percent. The ratio has fallen below this instances, affect the borrower’s ability to determining that the mortgagor must threshold, and this is one action of make monthly mortgage payments some pay on account of the property an many that FHA is taking to address this time after the mortgage loan is closed. amount that can be greater than the statutory requirement. An example is when certain reoccurring minimum 3.5 percent. Requiring, 5. FHA Risk Management. Under homeownership costs are prepaid on a directly or indirectly, that the mortgagor section 4(b) of the Department of temporary basis, but then, after the must come to the closing table with Housing and Urban Development Act,

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the Secretary shall ensure that managers concessions was not appropriate seasoning that demonstrates long-run of the FHA are held accountable for because it focused on loans insured performance and credit risk, as was program operations and risk from 2005 to 2008, and those insurance shown in Table C of the July 15, 2010, management along with other duties. endorsements had large shares with notice, it does permit differentiation Because the action proposed by this seller-funded downpayment assistance between low- and high-balanced loans Notice addresses risk management and with lower borrower credit scores to a degree not possible with earlier loan directly, reducing the amount of eligible than are acceptable to HUD today. In originations. Prior to passage of the seller concessions is authorized under response, HUD has completed an Economic Stimulus Act of 2008, the this statutory provision. As is more fully analysis of 2009 and 2010 loans. These FHA national loan limit ceiling was addressed in Section III of this Notice, latter loans were originated after the use $369,720; after that, it rose to $729,750, which discusses the public comments of seller-funded downpayments was where it remains today, which causes received on the July 15, 2010, notice, made illegal, and after lenders tightened HUD to be concerned about credit risk some program participants have their own internal credit guidelines to from high dollar concession amounts on expressed concerns that reducing the eliminate the low credit score loans that high balanced loans with high loan-to- amount of seller concessions may made up a sizable portion of FHA value ratios. impact the housing market at a time insurance activity in the 2005-to-2008 For this analysis, HUD developed a when the market is depressed. However, period. Loans outside of current HUD data set of borrower-required closing FHA also has obligations to manage the policy on minimum borrower credit costs and seller concessions that covers MMIF soundly and prudently. The scores also were excluded from the 74 percent of the two million FHA reduction in the amount of seller analysis, though they comprised only a insured home purchase loans originated concessions is specifically being small number of the 2009 and 2010 loan in 2009 and 2010.7 To measure credit implemented to directly meet these originations.6 risk on these loans, HUD focused only statutory mandates, and is being done in In this new analysis, HUD addresses on 2009 loan originations, which now accordance with specific statutory four key areas: (1) The distribution of have as much as 26 months of authority governing required funds to closing costs and concessions in dollar seasoning. Patterns of credit risk already close and the mortgagor’s ability to amounts and in percent of property seen in this population are likely to make the monthly mortgage payments. value, for different sized loans; (2) the persist over the life of the loans. FHA officials would be remiss in their introduction into the FHA portfolio of fiscal responsibilities if this action, after loans for much larger amounts than had Table A shows the distribution of thoughtful study and analysis of been insured in previous years; (3) the borrower-required closing costs as a program data and careful review of and juxtaposition of closing costs and percentage of home value. That taking into account the public concessions, by percent of property information highlights how fixed-cost comments, was not implemented. value; and (4) the credit risk associated factors tend to create percentage with different levels of seller amounts that are greatest for small D. Reducing Seller Concessions concessions. balance loans. More than 70 percent of Many of the commenters on the July To prepare this revised proposal, loans of up to $180,000 have closing 15, 2010, notice suggested that the HUD updated its data analysis to use costs in excess of 3 percent of property primary illustration of credit risk for more recent loan originations. While value, while among loans above loans with high rates of seller this does not provide the type of loan $240,000, the share is just 26 percent.

TABLE A—BORROWER CLOSING COSTS—BY LOAN AMOUNT AND PERCENT OF PROPERTY VALUE [2009–2010 FHA-insured loan originations]

a Loan amt. Percent of property value (rows sum to 100%) ($000) <=1 2 3 4 5 6 >6

<=180 ...... 1.35 8.42 19.12 25.51 19.37 11.36 14.88 181–240 ...... 4.50 20.23 35.59 22.50 9.55 4.25 3.39 241–360 ...... 8.63 29.80 35.40 15.35 6.26 2.88 1.68 >360 ...... 11.81 33.51 29.13 14.02 6.95 3.14 1.44

All ...... 4.45 18.57 30.22 22.03 11.97 6.18 6.57 a Property value is measured as the lesser of the purchase price and the appraisal amount. Each category here, except for the final one, rep- resents amounts up to the percentage shown in the column heading.

Concessions are present in 65 percent similar rate of concessions. Table B $240,000, and the greatest share of of FHA-insured home purchase loans. provides a companion to Table A, concessions for amounts above 3 That rate appears to have been fairly highlighting the distribution of seller percent of property value are for the constant over time; data samples taken concessions, by size, in percent of home lowest loan amount categories shown by HUD on FY 2000 to 2002 home value. The greatest rate of use of there, and especially for loan amounts purchase loans insured by FHA show a concessions is for loan amounts up to up to $180,000.

6 These are loans for which borrower credit scores 7 Loans were excluded from this analysis and/or the presence of seller concessions. A small are below 500, or for which the credit scores are primarily because HUD was not able to discern number of loans were excluded because borrower below 580 if the loan-to-value ratio is above 90 from the various data submitted by lenders the credit scores were below current limits for FHA percent. amounts of total borrower required closing costs eligibility.

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TABLE B—SELLER CONTRIBUTIONS AS A PERCENT OF PROPERTY VALUE [2009–2010 FHA-insured loan originations]

a (rows sum to 100%) Loan amt. Percent of property value ($000) 0 a 1 2 3 4 5 6 >6 b

<=180 ...... 34.02 2.55 8.29 21.25 16.43 8.95 8.03 0.48 181–240 ...... 32.74 6.04 16.43 27.59 11.98 3.47 1.65 0.09 241–360 ...... 38.79 9.52 21.51 21.38 6.18 1.58 0.99 0.05 >360 ...... 47.28 12.54 18.96 13.93 3.73 1.91 1.61 0.04 All ...... 34.66 5.76 14.76 24.15 12.15 4.81 3.50 0.20 a Property value is measured as the lesser of the purchase price and the appraisal amount. Each category here, except for the final one, rep- resents amounts up to the percentage shown in the column heading. b Shares of loans with rates of closing costs and concessions above 6 percent rose in 2010 in conjunction with a higher share of loans on properties with purchase prices below $50,000.

Table C juxtaposes information from found where both closing costs and concentrations seen in Table C (for Tables A and B to show how concession concessions are between 2 and 3 percent loans with positive concessions) are for rates align with closing-cost rates. of home value. As seen in Table A, loans where closing costs and Shaded cells represent loans for which closing costs occur in this range for concessions are both between 1 and 2 concessions are generally larger than the more than 30 percent of all home- percent of property value (7.62 percent), closing costs. Those account for 7 purchase loans insured by FHA. Table and those where each measure is percent of all loans and 10 percent of B shows that concessions in this range between 3 and 4 percent of property loans with concessions. Table C also represent 24 percent of all subject loans, value (7.21 percent). The next highest shows that the largest single and 37 percent of loans with concentrations also are adjacent to the concentration of loans (13.77 percent) is concessions. The next largest most populated group.

TABLE C—BORROWER CLOSING COSTS AND CONCESSIONS, IN PERCENTAGE OF PROPERTY VALUE a [2009–2010 FHA-insured loan originations]

Concessions rates (% of value) Closing cost rate (% of value) All 0 b <=1 2 3 4 5 6 >6

1 ...... 2.21 1.10 0.33 0.50 0.21 0.06 0.04 0.00 4.45 2 ...... 7.03 1.57 7.62 1.52 0.57 0.15 0.10 0.01 18.57 3 ...... 8.99 1.66 4.00 13.77 1.23 0.35 0.20 0.01 30.22 4 ...... 6.74 0.81 1.66 4.72 7.21 0.49 0.37 0.02 22.03 5 ...... 4.06 0.35 0.65 1.98 1.67 2.84 0.41 0.02 11.97 6 ...... 2.38 0.15 0.27 0.88 0.72 0.53 1.23 0.02 6.18 9 ...... 3.25 0.12 0.23 0.77 0.54 0.39 1.15 0.13 6.57 All ...... 34.66 5.76 14.76 24.15 12.15 4.81 3.50 0.20 100.00 a Property value is the lesser of purchase price and appraisal amount. b Any amount up to $500 is considered zero.

Table D provides summary statistics amount classes shown in Tables A on the dollar amounts of closing costs and B. and concessions, by the same four loan-

TABLE D—BORROWER CLOSING COSTS AND SELLER CONCESSIONS DESCRIPTIVE STATISTICS BY LOAN AMOUNT

Percentiles Loan amt. Cost or concession Loans ($000) 5th 25th 50th 75th 95th

Dollar Amounts

<=180 ...... Cost ...... 449,548 1,489 2,561 3,435 4,476 6,904 Concession ...... 449,548 0 0 2,049 3,251 4,900 181–240 ...... Cost ...... 748,048 1,789 3,385 4,571 6,054 9,594 Concession ...... 748,048 0 0 3,000 4,703 7,012 241–360 ...... Cost ...... 203,623 2,335 4,759 6,586 8,933 14,610 Concession ...... 203,623 0 0 3,150 6,468 10,062 >360 ...... Cost ...... 69,346 3,209 6,794 9,795 14,253 23,702 Concession ...... 69,346 0 0 1,527 8,155 16,453

Percentage of Home Value

<=180 ...... Cost ...... 449,548 1.60 2.84 3.82 5.09 8.01 Concession ...... 449,548 0.00 0.00 2.44 3.50 5.71

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TABLE D—BORROWER CLOSING COSTS AND SELLER CONCESSIONS DESCRIPTIVE STATISTICS BY LOAN AMOUNT— Continued

Percentiles Loan amt. Cost or concession Loans ($000) 5th 25th 50th 75th 95th

181–240 ...... Cost ...... 748,048 1.04 2.01 2.71 3.56 5.53 Concession ...... 748,048 0.00 0.00 1.75 2.87 4.04 241–360 ...... Cost ...... 203,623 0.81 1.66 2.27 3.05 4.90 Concession ...... 203,623 0.00 0.00 1.11 2.23 3.49 >360 ...... Cost ...... 69,346 0.70 1.51 2.12 3.03 4.92 Concession ...... 69,346 0.00 0.00 0.33 1.83 3.54

Tables E–G parallel Tables A–C and both in foreclosure completions and in and concessions each exceed 3 percent provide performance information for claim filings. In addition, focusing on of property value. Table F shows that loans originated in 2009.8 The defining such ‘‘failures’’ is more directly while the lowest risk loans are those in metric is a ‘‘failure’’ rate, which associated with losses to the FHA the highest loan amount category (above includes all loans that have either insurance operations than are $360,000), when no concessions are resulted in an insurance claim (as of delinquency rate measures.9 present, the highest risk is for the same March 31, 2011), are presently in These tables show that, within each category of loans when concessions are foreclosure processing, or else have loan amount category, credit risk is above 4 percent of property value, and gone through the foreclosure process but highest for loans with larger closing especially when they are above 5 the insurance claim has not yet been costs and with larger concessions. For percent. In Table E, the highest loan- filed or processed. HUD adopted this loan amounts above $240,000, credit amount group also shows the highest metric because present economic risk rises faster and higher than it does credit risk of all is when closing costs circumstances are resulting in delays for lower loan amounts, as closing cost exceed 4 percent.

TABLE E—TO-DATE FAILURE RATES a BY LOAN AMOUNT AND BORROWER CLOSING COST RATES [2009 Loan originations]

Borrower closing cost (percent of property value b) Loan amt All ($000) <=1 2 3 4 5 6 >6

<=180 ...... 0.92 0.81 0.99 1.11 1.11 1.19 0.99 1.04 181–240 ...... 0.65 0.70 0.79 0.91 0.74 1.04 0.98 0.79 241–360 ...... 0.61 0.79 0.92 1.03 1.12 1.24 1.48 0.88 >360 ...... 0.63 0.62 0.86 1.22 1.70 3.73 2.32 0.93 All ...... 0.66 0.73 0.85 1.00 0.98 1.20 1.02 0.89 a Failure is defined as a loan having either resulted in an insurance claim, or in foreclosure processing today, or else a foreclosure action has been completed and a claim filing is pending. Data as of March 31, 2011. b Property value is measured as the lesser of the purchase price and the appraisal amount. Each category here, except for the final one, rep- resents amounts up to the percentage shown in the column heading.

TABLE F—TO-DATE FAILURE RATES a BY LOAN AMOUNT AND SELLER CONCESSIONS RATES [2009 Loan originations]

Seller concessions (percent of property value b) Loan amt. All ($000) 0 b <=1 2 3 4 5 6 >6

<=180 ...... 0.72 1.12 1.01 1.03 1.18 1.41 1.58 2.15 1.04 181–240 ...... 0.62 0.67 0.73 0.87 1.04 1.09 1.45 1.71 0.79 241–360 ...... 0.70 0.79 0.82 1.03 1.48 1.85 1.51 2.27 0.88 >360 ...... 0.58 0.91 0.76 1.15 1.53 2.24 6.70 c 0.00 0.93 All ...... 0.66 0.77 0.80 0.94 1.14 1.32 1.66 2.02 0.89 a Failure is defined as a loan having either resulted in an insurance claim, or in foreclosure processing today, or else a foreclosure action has been completed and a claim filing is pending. Data is as of March 31, 2011. b Any amount up to $500 is considered zero; other categories represent amounts greater than the next lower limit, and up to the percentage listed; rows add to 100 percent. c There are just 19 loans in this cell.

8 Loans originated in 2010 are still too new for 9 HUD recognizes that not all loans for which a foreclosure actions have been initiated do provide there to be defined performance patterns. The 2009 foreclosure process is started will result in loss of a valid measure for differentiating credit risk across loans comprise 51.6 percent of the cases in this a home to the borrower and claim payment from groups of loans. analysis. FHA. However, the various rates at which

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TABLE G—TO-DATE FAILURE RATES a BY CLOSING COST (CC) AND SELLER CONCESSIONS (SC) RATES b [2009 Loan originations]

Seller concessions (%) by CC Closing costs (%) rate 0 c <=1 2 3 4 5 6 >6

<= 1...... 0.55 0.69 0.57 0.80 1.05 1.36 1.28 4.35 0.66 2 ...... 0.63 0.70 0.80 0.73 0.79 1.32 1.11 0.00 0.73 3 ...... 0.65 0.84 0.70 0.99 1.06 1.08 1.40 1.11 0.85 4 ...... 0.73 0.85 1.00 0.89 1.25 1.02 1.88 2.68 1.00 5 ...... 0.61 1.00 0.90 0.80 0.90 1.44 1.64 2.74 0.98 6 ...... 0.80 0.87 1.22 1.07 1.09 1.18 1.86 3.25 1.20 >6 ...... 0.73 1.41 1.26 0.85 0.75 1.38 1.48 1.70 1.02 by SC rate...... 0.66 0.13 0.39 0.73 0.43 0.20 0.19 0.01 0.89 a Failure is defined as a loan having either resulted in an insurance claim, or in foreclosure processing today, or else a foreclosure action has been completed and a claim filing is pending. Shaded cells represent loans for which concessions are larger than closing costs. Data is as of March 31, 2011. b Rates are in percent of property value (lesser of purchase price and appraisal amount). c Any amount up to $500 is considered zero; other categories represent amounts greater than the next lower limit, and up to the percentage listed; rows add to 100 percent.

E. Establishing the Seller Concession and access to homeownership for first- • $6,000, when that is more than 3 Percentage Cap and Dollar Limitation time homebuyers needing the low percent of property value and less than The Department recognizes that an downpayments permitted by FHA in total closing costs; or across-the-board reduction in what is still a fragile housing market. • 3 percent of property value, when To determine a reasonable percentage concession allowances could have a cap and dollar limitation, HUD that amount is both greater than $6,000 large negative impact on the ability of compared the range of actual closing and less than closing costs. low- and moderate-income households costs for homebuyers with FHA-insured Table H provides some benchmark to purchase moderate-priced homes. mortgages, as seen in Table D, with the values for understanding how this Thus, HUD is revising its proposed credit risk characteristics of loans with proposal would affect homebuyers with limitation on seller concessions to high concessions found in Tables F and minimum downpayments, at different address comments to that effect that G. The result is a new proposal loan amounts. For the homebuyer with were provided in response to the July permitting concessions as offsets to 15, 2010, notice. Many comments a $120,000 mortgage (buying a $126,000 actual closing costs on individual loans home), concessions would be recommended that HUD combine a up to the greater of 3 percent or $6,000 percentage cap with a dollar limitation. considered offsets to actual closing costs of the lesser of the sales price or where closing costs are as high as Such a two-part proposal could directly appraised value. In mathematical terms, address the higher credit risk of high- $6,000, or 4.78 percent of the home this limitation can be described as: value. The loan amount after which the balance loans with large seller Minimum [closing_cost, maximum concessions, while maintaining a ($6,000, 0.03* property_value)] where 3 percent of property value is greater sufficiently high allowance for the property_value = min (sale price, than $6,000 is $194,930 (buying a reasonable range of closing costs found appraised value) except for 203k where $200,000 home). For all larger loan on moderate-priced homes. Such a two- property_value = appraised_value. amounts, a borrower may use part approach would: Under this proposal, the limiting concessions as offsets to actual closing (1) Reduce the amount of concessions factor on the allowable dollar amount of costs up to 3 percent of property value. a seller (or other interested third party) concessions will be: At $360,000, concessions may be used could provide that would be considered • Closing costs, when the amount is to offset actual closing costs, up to in excess of actual closing costs or less than $6,000; $11,304. For a very high loan amount of inducements to sale, and • Closing costs, when they are above $600,000, the 3 percent concessions (2) Minimize the impact that such a $6,000 but less than 3 percent of allowance is $18,000. reduction might have on affordability property value;

TABLE H—COMPONENTS OF THE PROPOSED LIMIT ON SELLER CONCESSIONS [Examples at various loan amounts]

Loan Amount a ...... $120,000 $180,000 $194,930 $240,000 $360,000 Property Value b ...... $125,596 $188,394 $200,000 $251,192 $376,788 $6,000 as a % of Value ...... 4.78% 3.18% 3.00% 2.39% 1.59% 3.0% of Value ...... $3,768 $5,652 $6000 $7,536 $11,304 a Presumed to include the FHA Upfront Mortgage Insurance Premium of 1 percent. b Based upon borrower making the minimum downpayment of 3.5 percent. (Calculated as loan_amount/(0.965/1.01), to also account for the typical financing of the 1 percent upfront insurance premium.)

Referring again to Table D, the $6,000 percentile of all borrower closing costs. are less than their actual closing costs. limitation is generous to borrowers with Thus, less than 10 percent of borrowers For borrowers in the next loan amount loan amounts up to $180,000. In that with loan amounts under $180,000 category ($180,000–240,000), $6,000 range, $6,000 is beyond the 90th would have concession allowances that nearly reaches the 75th percentile of

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closing costs. However, $6,000 is not the determine maximum allowable generous than the existing 6 percent binding limit for borrowers with loan concessions. limitation for sales prices below amounts of $195,000 or greater (see Table I illustrates the impact of this $100,000. For sales prices between Table H). In that range, 3 percent of the revised proposal to the existing $100,000 and $200,000, the dollar cap property value is greater than $6,000 concessions limitation and at different allows for seller concessions greater and becomes the amount that is sales prices under the proposed than 3 percent. Any sales price above compared with actual closing costs to reduction. Concessions are more $200,000 is limited to the 3 percent cap.

TABLE I—COMPARISON OF LIMITATIONS ON SELLER CONCESSIONS

Existing seller Proposed reduction of Proposed concessions seller concessions is percentage Sales price limitation the greater of cap 6 percent 3.0 percent $6,000 %

$100,000 ...... $6,000 $3,000 $6,000 6.0 $120,000 ...... 7,200 3,600 6,000 5.0 $140,000 ...... 8,400 4,200 6,000 4.3 $160,000 ...... 9,600 4,800 6,000 3.75 $180,000 ...... 10,800 5,400 6,000 3.3 $200,000 ...... 12,000 6,000 6,000 3.0 $220,000 ...... 13,200 6,600 6,000 3.0 $240,000 ...... 14,400 7,200 6,000 3.0 $260,000 ...... 15,600 7,800 6,000 3.0 $280,000 ...... 16,800 8,400 6,000 3.0 $300,000 ...... 18,000 9,000 6,000 3.0

The actual effects of the proposed $1,000; for the highest loan amount in this group, the $6,000 dollar limitation, when applied to the 2009 group, it is above $4,000. However, as limitation is greater than their closing and 2010 loan originations used in this seen in Table K, among the 9.7 percent costs. For loan amounts above $240,000, analysis, are shown in Tables J and K. of borrowers with loan amounts up to the share of affected loans constrained Overall, the limitation would have $180,000 that are affected, the binding by closing costs is more closely affected just 13.4 percent of those home constraint that creates excess balanced with the share that is purchase loans. The dollar size of the concessions is the actual amount of constrained by 3 percent of property resulting excess contributions is shown closing costs in nearly all of those value (56 and 44 percent, respectively). in Table J. For the lowest loan amount situations (93.4 percent). For the fewer group, the median effect is under than 7 percent of the affected borrowers

TABLE J—PROPOSED CONCESSIONS LIMITATION, AFFECTS BY LOAN SIZE CATEGORY [2009–2010 FHA-insured loans]

Dollar reductions—at various percentiles Loan amt. Number of Share of loans (affected loans only) ($000) loans affected affected % 5th 25th 50th 75th 95th

<=180 ...... 43,592 9.7 $86 $480 $988 $1,670 $3,018 181–240 ...... 114,726 15.3 116 664 1,434 2,562 4,900 241–360 ...... 30,499 15.0 150 1,001 2,247 4,106 8,160 >360 ...... 8,819 12.7 327 1,850 4,138 7,541 14,635

TABLE K—PROPOSED CONCESSIONS LIMITATION SOURCE OF CONSTRAINT ON AFFECTED LOANS, BY LOAN SIZE CATEGORY

Binding constraint Loan amt. ($000) Closing cost Property value Dollar limit % % %

<=180 ...... 93.4 0.11 6.5 181–240 ...... 61.9 12.7 25.5 241–360 ...... 57.0 43.0 0.04 >360 ...... 54.2 45.7 0.05 All ...... 67.7 16.0 16.2 Note: Rows sum to 100%.

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F. Considering Alternative Approaches regarding the seller concession cap in order to proceed with the purchase of There were a variety of alternative failed to demonstrate a significant risk the home. Additionally the reduction in approaches suggested by commenters. to the FHA portfolio to justify the sellers concessions, some commenters Some commenters recommended that change. Further, commenters argued, could result in less money HUD defer instituting a cap in favor of questioned the accuracy of the statistical available for post-purchase incidentals monitoring the performance of loans data illustrating the correlation between including home improvements and with seller concessions for a period of higher seller concessions and an emergencies. 2 years. Others suggested adopting the increased rate of default. HUD Response. HUD amended its cap used by other federal programs such HUD Response. HUD has amended its proposal in response to these comments. as the Department of Veterans Affairs proposal in response to these comments. HUD recognizes that borrowers with The Department conducted a more lower loan amounts were more Home Loan Program or capping seller complex analysis of portfolio negatively impacted by the initial concessions based on the buyer’s credit performance involving seller proposal from the July 15, 2010, notice score. While these alternatives to the concessions, which revealed that the than borrowers with high loan amounts. proposed reduction all had merit, HUD risk to the MMIF increased for loans However, as evidenced in Tables A, B, believes that they do not sufficiently with larger closing costs and C, and D, the impact of any change to address the risk to the MMIF and/or concessions. Table E demonstrates that seller concessions would not be as great they do not adequately mitigate the for loan amounts in excess of $240,000 as indicated by the commenters. As impact that a reduction in seller for FY 2009, credit risk rises faster and shown in Table C, the largest single concessions may have had on the higher than it does for lower loan concentration of loans (13.77 percent) is housing market. In considering all of the amounts when closing costs and where both closing costs and alternative approaches, HUD sought to concessions exceed 3 percent. Table F concessions are between 2 and 3 percent achieve both of these goals. The shows that the highest risk exists with of home value. In Table A, closing costs comments that recommended loans greater than $360,000 and occur in this range for more than 30 combining a percentage cap with a concessions are above 4 percent. percent of all home purchase loans dollar limitation met these goals and Comment: Proposed cap does not insured by FHA. Table B shows that provided HUD the opportunity to revise address true problems in the housing concessions in this range represents 37 this proposal in a manner that would market. Several commenters wrote that percent of loans with concessions. The both benefit the housing market and the proposed cap will be ineffective next largest concentration is for loans FHA’s Mutual Mortgage Insurance because it fails to address the true where closing costs and concessions are Fund. causes of increased defaults. Some of between 1 and 2 percent of property Section III of this notice discusses all these commenters wrote that value (7.62 percent). Table A highlights of the significant issues raised by the unscrupulous lending practices were how fixed cost factors tend to create public comments regarding the July 15, primarily responsible for the increased percentage amounts that are greatest for 2010, notice’s proposed reduction in the mortgage defaults, while other small balance loans. Over 70 percent of allowable amount of seller concessions, commenters pointed at artificially loans of up to $180,000 have closing and HUD’s responses to these issues. inflated appraisals and sales prices. costs in excess of 3 percent of property III. Discussion of the Public Comments HUD Response. HUD has amended its value. This difference is attributed to Regarding Proposed Reduction in proposal in response to these comments. the fact that many closing costs are fixed Sellers Concessions The Department agrees that reducing (e.g., appraisals, title services, seller concessions alone will not inspections, and flood and lien A. Support for Proposed Limit on Seller address the true problems associated certifications), and not a percentage of Concessions with increased defaults and the loan amount (e.g., origination charge, A minority of the comments volatility in the housing market. title insurance). Therefore, the revised expressed support for reducing seller However, this revised proposal, in proposal allows for greater than 6 concessions. The commenters wrote that conjunction with other efforts to percent seller concessions on loans with the cap would require a more serious strengthen enforcement actions and a sales price of less than $100,000 and commitment from borrowers and should reduce risk, will help ensure that allows for seller concessions greater also help reduce risks to the FHA borrowers relying on FHA-insured than 3 percent for loans with a sales insurance funds. financing have sufficient investment in price up to $200,000. It is anticipated HUD Response. HUD appreciates the their home purchases and are therefore that this revised proposal will support for reducing seller concessions. less likely to default. This revised minimize, if not eliminate, the concerns It believes that this reduction will proposal will also help curtail a practice that a reduction in seller concessions reduce risk to the MMIF, while at the where seller concessions are offered an would have a negative impact on the same time preserving FHA’s mission of amount above the borrower’s actual housing market. Also, this proposal will helping underserved borrowers obtain costs as an offset to a higher sales price. assist borrowers who are less able to affordable home financing. Comment: Proposed cap will harm the absorb the post-purchase financial costs housing market. Several commenters of home improvements and emergency B. Proposed Cap Will Be Ineffective and wrote that the proposed cap could have repairs, by not requiring them to devote Harmful a chilling effect on the origination of all available funds to the acquisition of Comment: HUD failed to provide new mortgages. Commenters wrote that the home. adequate justification for the proposed reducing seller concessions from Comment: Reduction in seller’s cap reduction, and reducing seller 6 percent to 3 percent would reduce the will disproportionately impact low- concessions will not result in reduced qualified borrower pool and remove a income and first-time homebuyers. risk to FHA. Several commenters large portion of borrowers who would Several commenters suggested that the questioned HUD’s stated rationale for otherwise be approved under stringent proposed seller concession cap will limiting seller concessions. The underwriting requirements. The unfairly impact low-income and first- commenters wrote that the data commenters wrote that many FHA time homebuyers. The reduction from 6 provided in the July 15, 2010, notice buyers require the seller’s contribution percent to 3 percent will impact less

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expensive properties and have a C. Alternative Approaches concessions has minimal impact on the disparate impact on lower income Comment: HUD should defer housing market and that borrowers who borrowers and potential homeowners instituting a cap. Several commenters need additional assistance in purchasing homes worth less than wrote that the analysis provided in the purchasing a home may receive it. As $150,000. The cap will burden low July 15, 2010, notice was conducted stated previously, this revised proposal income buyers and require a higher prior to the implementation of other allows for seller concessions greater percentage of cash relative to buyers recently enacted FHA risk management than 6 percent on loans with sales purchasing more expensive homes. initiatives and, therefore, does not take prices less than $100,000 and permits Additionally, commenters wrote that the beneficial impact of such changes seller concessions greater than 3 percent first-time homebuyers are less likely to into account. The commenters for loans with sales prices up to $200,000 (See Table I). have cash available to meet closing questioned whether the increase in Comment: Cap seller concessions by costs. The commenters wrote that these average default rates was caused by the dollar amount in addition to percentage. buyers rely heavily on the 6 percent difference in seller concessions or by seller’s concessions and will experience Several commenters wrote that some other factor such as lower providing a dollar range in addition to a greater decrease in buying power than borrower credit scores. The commenters second- or third-time buyers. a percentage would resolve regional and proposed that HUD delay implementing economic disparity issues posed by the HUD Response. HUD has amended its the 3 percent cap until the results and proposal in response to these comments proposed 3 percent cap. impacts of the other recently HUD Response. HUD has amended its and agrees that an across-the-board implemented FHA risk change can be reduction in seller concessions had a proposal based on these comments and tracked. Commenters suggested that has proposed that seller concessions be disproportionately negative impact on HUD analyze the performance of loans low- and moderate-income borrowers reduced to 3 percent or $6,000, left at a 6 percent cap for 2 years prior whichever is the greater (but not to purchasing lower priced homes. As to instituting the change. noted in previous responses, this exceed the borrower’s actual costs). Like HUD Response. HUD has amended its the commenters, the Department revised proposal allows for greater than proposal in response to these comments. believes that combining a cap based on 6 percent seller concessions on loans HUD believes that it has completed the percentage with a cap based on a dollar with sales prices less than $100,000 and necessary due diligence in proposing a amount addresses the regional and allows for seller concessions greater reduction in seller concessions, from economic disparities that may have than 3 percent for loans with sales analyzing the impact on its portfolio to occurred with an across-the-board prices up to $200,000 (See Table I). the impact a reduction would have on reduction. Readers are directed to the Comment: Proposed cap fails to the housing market. As part of the discussion in Section II regarding this consider regional differences in housing analysis for this revised proposal, which revised proposal. markets. Several commenters wrote that includes performance data from FYs Comment: Base seller concessions on the reduction in seller concessions to 2009 and 2010, HUD did not include buyer credit score. Several commenters 3 percent should be reevaluated to loans it no longer insures, such as those suggested that FHA adopt a graduated account for varying home prices with credit scores below 580 and LTVs system for determining the allowable regionally. Commenters wrote that greater than 90 percent, as well as those amount of seller concessions. closing costs, taxes, and insurance vary with seller-funded downpayment Commenters suggested basing this greatly by state. The commenters wrote assistance. By eliminating these loans graduated system either on income level that the 3 percent cap will have a from the analysis, HUD was able to or credit score. Commenters suggested variable impact on buyers depending on analyze seller concessions and their that a graduated approach will more the regional market and that HUD impact on the portfolio without skewing directly speak to the correlation should consider a more flexible market- the data with known factors that more between poor credit and default. Rather driven approach. likely contributed to the default and than reduce the seller contribution of HUD Response. HUD does not engage claim. Readers are referred to the FHA transactions to 3 percent in regional eligibility and underwriting discussion in Section II that illustrates universally, commenters suggested that standards based on local market the need to make these reductions while FHA adjust the cap using other risk conditions. FHA’s role in stabilizing the at the same time preserving the 6 identifiers such as correlating the seller current housing market is due to the fact percent cap for those borrowers who concession with credit scores. that its programs are available under the need it the most; i.e., low- and HUD Response. HUD believes that same terms and conditions regardless of moderate-income borrowers purchasing limiting seller concessions based on the the borrower’s and subject property’s lower priced homes. borrower’s income level and credit score location. However, HUD does recognize Comment: HUD should allow for would not achieve its mission of that there are regional differences in the gradual reduction of seller concessions. assisting low-income borrowers housing market and, therefore, it crafts Commenters recommended that if HUD overcome a chief obstacle to purchasing its policies by taking these differences plans to implement the reduction in a home: having sufficient funds for a into consideration. HUD analyzed FHA seller concessions, that a gradual downpayment, as well as for paying all loans from both high-cost and low-cost approach be used. Commenters argued of their closing costs. With this revised states and used a reasonable range (25th that the 3 percent reduction would proposal, HUD is striking the percentile to 75th percentile) to result in many buyers being priced out appropriate balance between its historic determine the appropriate cutpoints. of the market. Commenters argued that role of making it easier for families to HUD also reviewed various external a gradual approach would protect purchase their homes, while at the same closing cost studies such as by potential buyers and would allow HUD time ensuring that they have sufficient Bankrate.com and analyzed additional to study the impact of each change. investment in their home purchases and external data provided by an FHA- HUD Response. HUD believes that its are therefore less likely to default. approved lender. HUD is confident that revised proposal has essentially the Comment: HUD should align the its own analysis is consistent with other same effect the commenters are seeking, seller concession cap with other federal reliable closing costs studies. ensuring that a reduction to seller programs. Several commenters

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suggested that if HUD implements a means sustainable homeownership. toll-free number). Individuals with reduction in the allowable amount of Another highly important benefit will speech or hearing impairments may seller concessions, that it should be be to reduce the net losses to the FHA access this number via TTY by calling reduced to 4 percent. This reduction insurance fund resulting from high rates the Federal Relay Service at 800–877– would align it with the Department of of insurance claims. The total gain to 8339. FHA from the implementation of HUD’s Veterans Affairs Veterans’ Home Loan Regulatory Flexibility Act Program. proposal as presented in this notice is HUD Response. HUD did consider expected to range from $60 million to The Regulatory Flexibility Act (RFA) aligning itself with the Department of $70 million. As the current housing (5 U.S.C. 601 et seq.) generally requires Veterans Affairs Veterans’ Home Loan market has shown, the importance of an agency to conduct a regulatory Program but found in its analysis that maintaining FHA as a source of credit flexibility analysis of any rule subject to doing so would have resulted in a for homeownership is a highly notice and comment rulemaking disproportionately negative impact on important benefit, which cannot be requirements, unless the agency certifies borrowers purchasing lower priced overstated. that the rule will not have a significant homes. By combining a percent cap Because of the downturn in the economic impact on a substantial with a dollar amount cap, HUD believes housing market, FHA loans are now in number of small entities. The notice that it has addressed such disparities higher demand as a result of the absence reduces the seller concessions cap. The and minimizes the impact a reduction of sufficient private lending in the benefit of this action will be to reduce in seller concessions may have on the mortgage market. The volume of FHA the net losses due to mortgage defaults. market. insurance increased rapidly as private As noted in the economic analysis for sources of mortgage finance retreated the notice, few borrowers are served in IV. Findings and Certification from the market. As noted earlier in this the categories that would be excluded Executive Order 12866, Regulatory preamble, FHA’s share of the single- under the new policies, relative to the Planning and Review family mortgage market today is total FHA portfolio. Further, as noted by approximately 33 percent—up from 3 many of the public commenters on the The Office of Management and Budget percent in 2007, and the dollar volume July 15, 2010, notice, the policy changes (OMB) reviewed this notice under of insurance written has jumped from being made by FHA aligns the seller Executive Order 12866 (entitled the $77 billion issued in that year to concession cap with that found in the ‘‘Regulatory Planning and Review’’). $319 billion in 2010. Accordingly, over conventional mortgage market. The The notice was determined to be a the last several years, FHA’s primary impact of the policy changes will, ‘‘significant regulatory action,’’ as contribution to the public is to provide therefore, largely be limited to defined in section 3(f) of the Order a financing source for affordable and conforming FHA standards to (although not economically significant, sustained homeownership when the widespread industry practice. as provided in section 3(f)(1) of the market is not achieving this goal on its Environmental Impact Order). own. FHA cannot, however, contribute As discussed in this preamble, this to sustained homeownership if FHA A Finding of No Significant Impact notice proposes to reduce the amount of itself is not sustained. (FONSI) with respect to the closing costs a seller may pay on behalf As has been reported, FHA’s capital environment was prepared for the July of a homebuyer purchasing a home with reserve ratio has fallen below the 15, 2010, notice, in accordance with financing insured by FHA. The statutorily mandated minimum capital HUD regulations at 24 CFR part 50, increased role of FHA in the mortgage reserve ratio of 2 percent. A primary which implement section 102(2)(C) of lending marketplace, combined with the reason why is that the recent demands the National Environmental Policy Act economic difficulties faced by many placed on FHA have resulted in of 1969 (42 U.S.C. 4332(2)(C)). The FHA borrowers, has increased the risk increased losses to the FHA insurance Finding of No Significant Impact to the FHA insurance funds. While HUD fund. FHA has a fiduciary duty, remains applicable to this notice and is has undertaken several steps to mitigate imposed by statute, to preserve the available for public inspection between this risk and strengthen the financial MMIF and to maintain the capital ratio the hours of 8 a.m. and 5 p.m. weekdays soundness of the FHA programs, a of the MMIF at not less than 2 percent. in the Regulations Division, Office of reduced cap on seller concessions In brief, FHA must take action to reduce General Counsel, Department of remains a vitally needed reform. risks and eliminate losses. FHA has Housing and Urban Development, 451 As provided in the economic analysis already taken several steps to reduce 7th Street SW., Room 10276, that accompanies this notice, the risks, and this proposal on reduced Washington, DC 20410. Due to security combined compliance cost for seller concessions is another such measures at the HUD Headquarters borrowers and sellers under HUD’s measure to do so and restore the MMIF building, please schedule an proposal to reduce seller concessions to the statutory minimum capital appointment to review the FONSI by ranges from $21 million to $97 million. reserve ratio. calling the Regulations Division at 202– The actual cost of compliance depends The full economic analysis is 708–3055 (this is not a toll-free greatly on the state of the housing available for review at number). Individuals with speech or mortgage market. Where the mortgage www.regulations.gov. The docket file is hearing impairments may access this market is healthier and private lending available for public inspection in the number via TTY by calling the Federal is available, the cost of compliance will Regulations Division, Office of General Information Relay Service at 800–877– be at the lower end of the range, and Counsel, Department of Housing and 8339. concomitantly at the higher end of the Urban Development, 451 7th Street SW., range in a slowed market in which Room 10276, Washington, DC 20410– Executive Order 13132, Federalism private lending is substantially reduced. 0500. Due to security measures at the Executive Order 13132 (entitled With respect to benefits, HUD expects HUD Headquarters building, please ‘‘Federalism’’) prohibits an agency from its proposal to help prevent foreclosures schedule an appointment to review the publishing any document that has in the amount of approximately $25 docket file by calling the Regulations federalism implications if the document million, and prevention of foreclosures Division at 202–402–3055 (this is not a either imposes substantial direct

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compliance costs on state and local thereby protect the safety of life, comment online via http:// governments and is not required by property, and the environment. Lawful www.regulations.gov, it will be statute, or preempts state law, unless the demonstrations may be conducted considered received by the Coast Guard agency meets the consultation and outside of the safety zone. when you successfully transmit the funding requirements of section 6 of the DATES: Comments and related material comment. If you fax, hand deliver, or Executive Order. This document would must be received by the Coast Guard on mail your comment, it will be not have federalism implications and or before March 26, 2012. considered as having been received by would not impose substantial direct ADDRESSES: You may submit comments the Coast Guard when it is received at compliance costs on state and local identified by docket number USCG– the Docket Management Facility. We governments or preempt state law 2012–0024 using any one of the recommend that you include your name within the meaning of the Executive following methods: and a mailing address, an email address, Order. (1) Federal eRulemaking Portal: or a telephone number in the body of your document so that we can contact Unfunded Mandates Reform Act http://www.regulations.gov. (2) Fax: 202–493–2251. you if we have questions regarding your Title II of the Unfunded Mandates (3) Mail: Docket Management Facility submission. Reform Act of 1995 (2 U.S.C. 1531– (M–30), U.S. Department of To submit your comment online, go to 1538) (UMRA) establishes requirements Transportation, West Building Ground http://www.regulations.gov, click on the for federal agencies to assess the effects Floor, Room W12–140, 1200 New Jersey ‘‘submit a comment’’ box, which will of their regulatory actions on state, Avenue SE., Washington, DC 20590– then become highlighted in blue. 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Comments’’ portion of the SUPPLEMENTARY INFORMATION section comments by mail and would like to [FR Doc. 2012–3934 Filed 2–22–12; 8:45 am] know that they reached the Facility, BILLING CODE 4210–67–P below for instructions on submitting comments. please enclose a stamped, self-addressed postcard or envelope. We will consider FOR FURTHER INFORMATION CONTACT: If all comments and material received DEPARTMENT OF HOMELAND you have questions on this proposed during the comment period and may SECURITY rule, call or email LT Jason Smilie, change the rule based on your Seventeenth Coast Guard District (dpi); comments. Coast Guard telephone 907–463–2809, [email protected]. If you have Viewing Comments and Documents 33 CFR Part 147 questions on viewing or submitting To view comments, as well as [Docket No. USCG–2012–0024] material to the docket, call Renee V. documents mentioned in this preamble Wright, Program Manager, Docket as being available in the docket, go to RIN 1625–AA00 Operations, telephone 202–366–9826. http://www.regulations.gov, click on the Safety Zone; NOBLE DISCOVERER, SUPPLEMENTARY INFORMATION: ‘‘read comments’’ box, which will then become highlighted in blue. In the Outer Continental Shelf Drillship, Public Participation and Request for ‘‘Keyword’’ box, insert USCG–2012– Chukchi and Beaufort Seas, Alaska Comments 0024 and click ‘‘Search.’’ Click the AGENCY: Coast Guard, DHS. We encourage you to participate in ‘‘open Docket Folder’’ in the ‘‘Actions’’ ACTION: Notice of proposed rulemaking. this rulemaking by submitting column. comments and related materials. All You may also visit the Docket SUMMARY: The Coast Guard proposes a comments received will be posted Management Facility in Room W12–140 500-meter safety zone around the without change to http:// on the ground floor of the Department DRILLSHIP NOBLE DISCOVERER, www.regulations.gov and will include of Transportation West Building, 1200 while anchored or deploying and any personal information you have New Jersey Avenue SE., Washington, recovering moorings on location in provided. DC 20590, between 9 a.m. and 5 p.m., order to drill exploratory wells at Monday through Friday, except Federal Submitting Comments various prospects located in the holidays. We have an agreement with Chukchi and Beaufort Seas Outer If you submit a comment, please the Department of Transportation to use Continental Shelf, Alaska, from 12:01 include the docket number for this the Docket Management Facility. a.m. on July 1, 2012 through 11:59 p.m. rulemaking (USCG–2012–0024), on October 31, 2012. See TABLE 1. The indicate the specific section of this Privacy Act purpose of the temporary safety zone is document to which each comment Anyone can search the electronic to protect the drillship from vessels applies, and provide a reason for each form of comments received into any of operating outside the normal shipping suggestion or recommendation. You our dockets by the name of the channels and fairways. Placing a safety may submit your comments and individual submitting the comment (or zone around the drillship will material online (via http:// signing the comment, if submitted on significantly reduce the threat of www.regulations.gov) or by fax, mail, or behalf of an association, business, labor allisions, which could result in oil hand delivery, but please use only one union, etc.). You may review a Privacy spills, and releases of natural gas, and of these means. If you submit a Act notice regarding our public dockets

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in the January 17, 2008 issue of the related hazards that might be Results from a thorough and Federal Register (73 FR 3316). encountered, would result in a comprehensive examination of the criteria, IMO guidelines, and existing Public Meeting catastrophic event. Incursions into the safety zone by unapproved vessels regulations warrant the establishment of The Coast Guard does not plan to could degrade the ability to monitor and the proposed temporary safety zone. hold a public meeting. But you may mitigate such risks. In evaluating this The proposed regulation would submit a request for one by using one request, the Coast Guard explored significantly reduce the threat of of the four methods specified under relevant safety factors and considered allisions that could result in oil spills, ADDRESSES. Please explain why you several criteria, including but not and releases. Furthermore, the proposed believe a public meeting would be limited to: (1) The level of shipping regulation would increase the safety of beneficial. If we determine that one activity around the operation; (2) safety life, property, and the environment in would aid this rulemaking, we will hold concerns for personnel aboard the the Chukchi and Beaufort Seas by one at a time and place announced by vessel; (3) concerns for the environment prohibiting entry into the zone unless a later notice in the Federal Register. given the sensitivity of the specifically authorized by the Basis and Purpose environmental and subsistence Commander, Seventeenth Coast Guard District, or a designated representative. The Coast Guard proposes the importance to the indigenous Due to the remote location and the need establishment of a temporary safety population; (4) the lack of any to protect the environment, the Coast zone around the DRILLSHIP NOBLE established shipping fairways, fueling Guard may use criminal sanctions to DISCOVERER while anchored or and supply storage/operations, and size enforce the safety zone as appropriate. deploying and recovering moorings on of the crew increase the likelihood that location in order to drill exploratory an allision would result in a The proposed temporary safety zone wells in several prospects located in the catastrophic event; (5) the recent and will be around the NOBLE Chukchi and Beaufort Seas during the potential future maritime traffic in the DISCOVERER while anchored or 2012 drilling season. vicinity of the proposed areas; (6) the deploying and recovering moorings on The request for the temporary safety types of vessels navigating in the location in order to drill exploratory zone was made by Shell Exploration & vicinity of the proposed area; (7) the wells in various locations in the Production Company due to safety structural configuration of the vessel, Chukchi and Beaufort Seas Outer concerns for both the personnel aboard and (8) the need to allow for lawful Continental Shelf, Alaska during the the NOBLE DISCOVERER and the demonstrations without endangering the 2012 timeframe. environment. Shell Exploration & safe operation of the rig. For any group Shell Exploration & Production Production Company indicated that it is intending to conduct lawful Company has ten proposed drill sites highly likely that any allision or demonstrations in the vicinity of the rig, within the Burger, Suvulliq and inability to identify, monitor or mitigate these demonstrations must be Torpedo prospects, Beaufort Sea, Alaska any risks or threats, including ice- conducted outside the safety zone. (See Table 1).

TABLE 1—PROSPECT LOCATIONS

Prospect Well Area Block Lease No. Latitude Longitude

Burger ...... A Posey ...... 6764 OCS––2280 N71°18′30.92″ W163°12′43.17″ Burger ...... F Posey ...... 6714 OCS–Y–2267 N71°20′13.96″ W163°12′21.75″ Burger ...... J Posey ...... 6912 OCS–Y–2321 N71°10′24.03″ W163°28′18.52″ Burger ...... R Posey ...... 6812 OCS–Y–2294 N71°16′06.57″ W163°30′39.44″ Burger ...... S Posey ...... 6762 OCS–Y–2278 N71°19′25.79″ W163°28′40.84″ Burger ...... V Posey ...... 6915 OCS–Y–2324 N71°10′33.39″ W163°04′21.23″ Sivulliq ...... G Flaxman Is ...... 6658 OCS–Y 1805 N70°23′46.82″ W146°01′03.46″ Sivulliq ...... N Flaxman Is ...... 6658 OCS–Y 1805 N70°23′29.58″ W145°58′52.53″ Torpedo ...... H Flaxman Is ...... 6610 OCS–Y 1941 N70°27′01.62″ W145°49′32.07″ Torpedo ...... J Flaxman Is ...... 6559 OCS–Y 1936 N70°28′56.94″ W145°53′47.15″

During the 2012 timeframe, Shell enough for two to three typical Mammal Monitoring and Mitigation Exploration & Production Company has exploration wells to be drilled. plan requirements. proposed drilling up to two exploration The actual order of drilling activities All planned exploration drilling in wells at the identified Chukchi and will be controlled by an interplay the identified lease blocks will be Beaufort Sea prospects depending on between actual ice conditions conducted with the NOBLE favorable ice conditions, weather, sea immediately prior to a rig move, ice DISCOVERER. The NOBLE state, and any other pertinent factors. forecasts, any regulatory restrictions DISCOVERER is a true drillship, and is Each of these drill sites will be with respect to the dates of allowed a large self-contained drilling vessel that permitted for drilling in 2012 to allow operating windows, whether the offers full accommodations for up to 124 for operational flexibility in the event planned drilling activity involves only persons. The hull has been reinforced sea ice conditions prevent access to one drilling the shallow non-objective for ice resistance. of the locations. The number of actual section or penetrating potential The NOBLE DISCOVERER has a wells that will be drilled will depend on hydrocarbon zones, the availability of ‘‘persons on board’’ capacity of 124, and ice conditions and the length of time permitted sites having approved it is expected to be at capacity for most available for the 2012 drilling season. shallow hazards clearance, the of its operating period. The NOBLE The predicted ‘‘average’’ drilling season, anticipated duration of each DISCOVERER’s personnel will include constrained by prevailing ice conditions contemplated drilling activity, the its crew, as well as Shell employees, and regulatory restrictions, is long results of preceding wells and Marine third party contractors, Alaska Native

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Marine Mammal Observers and possibly and benefits under section 6(a)(3) of that them and participate in the rulemaking. Bureau of Ocean Energy Management Order. The Office of Management and If the rule would affect your small (BOEM) or Bureau of Safety and Budget has not reviewed it under that business, organization, or governmental Environmental Enforcement (BSEE) Order. jurisdiction and you have questions personnel. This rule is not a significant concerning its provisions or options for While conducting exploration drilling regulatory action due to the location of compliance, please contact LT Jason operations, the NOBLE DISCOVERER the DRILLSHIP NOBLE DISCOVERER Smilie, Coast Guard Seventeenth will be anchored. The NOBLE on the Outer Continental Shelf and its District, Office of Prevention; telephone DISCOVERER uses an anchoring system distance from both land and safety 907–463–2809, consisting of an 8-point anchored fairways. Vessels traversing waters near [email protected]. The Coast mooring spread attached to the onboard the proposed safety zone will be able to Guard will not retaliate against small turret and could have a maximum safely travel around the zone without entities that question or complain about anchor radius of 3,600 ft (1,100 m). The incurring additional costs. this proposed rule or any policy or anchor spread, which radiates from the Small Entities action of the Coast Guard. center of the NOBLE DISCOVERER, may pose a fouling hazard to any vessel Under the Regulatory Flexibility Act Collection of Information attempting to anchor within the anchor (5 U.S.C. 601–612), the Coast Guard has This proposed rule would call for no spread. Fouling of the NOBLE considered whether this proposed rule new collection of information under the DISCOVERER anchor lines may would have a significant economic Paperwork Reduction Act of 1995 (44 endanger the drillship, its 124 persons impact on a substantial number of small U.S.C. 3501–3520.). entities. The term ‘‘small entities’’ onboard the third party vessel, persons Federalism onboard the third party vessel and the comprises small businesses, not-for- environment. profit organizations that are A rule has implications for federalism The center point of the NOBLE independently owned and operated and under Executive Order 13132, DISCOVERER will be positioned within are not dominant in their fields, and Federalism, if it has a substantial direct the prospect location in the Beaufort Sea governmental jurisdictions with effect on State or local governments and at the coordinates listed below (See populations of less than 50,000. would either preempt State law or Table 1). The Coast Guard certifies under 5 impose a substantial direct cost of The NOBLE DISCOVERER will move U.S.C. 605(b) that this proposed rule compliance on them. We have analyzed into the Chukchi or Beaufort Sea on or would not have a significant economic this proposed rule under that Order and about July 1, 2012 and onto a prospect impact on a substantial number of small have determined that it does not have location when ice allows. Drilling will entities. This proposed rule would affect implications for federalism. be curtailed on or before October 31, the following entities, some of which Unfunded Mandates Reform Act 2012. The drillship and support vessels might be small entities: The owners or will depart the Beaufort Sea at the operators of vessels intending to transit The Unfunded Mandates Reform Act conclusion of the 2012 drilling season. or anchor in the Sivulliq and Torpedo of 1995 (2 U.S.C. 1531–1538) requires Prospect of the Beaufort Sea, including Federal agencies to assess the effects of Discussion of Proposed Rule Flaxman Island blocks 6610, 6658 and their discretionary regulatory actions. In The proposed temporary safety zone 6659, and Posey Blocks 6714, 6762, particular, the Act addresses actions would encompass the area within 500 6764, 6812, 6912, 6915 (See Table 1). that may result in the expenditure by a meters from each point on the outer This safety zone will not have a State, local, or tribal government, in the edge of the NOBLE DISCOVERER while significant economic impact or a aggregate, or by the private sector of anchored on location in order to drill substantial number of small entities for $100,000,000 (adjusted for inflation) or exploratory wells or deploying and the following reasons: This rule will more in any one year. Though this recovering moorings on location in enforce a safety zone around a drillship proposed rule would not result in such order to drill exploratory well. No vessel facility that is in an area of the Flaxman expenditure, we do discuss the effects of would be allowed to enter or remain in Island of the Beaufort Sea not this rule elsewhere in this preamble. this proposed safety zone except the frequented by vessel traffic and is not in Taking of Private Property following: An attending vessel or a close proximity to a safety fairway. vessel authorized by the Commander, Further, vessel traffic can pass safely This proposed rule would not cause a Seventeenth Coast Guard District or a around the safety zone without taking of private property or otherwise designated representative. They may be incurring additional costs. have taking implications under contacted on VHF–FM Channel 13 or 16 If you think that your business, Executive Order 12630, Governmental or by telephone at 907–463–2000. organization, or governmental Actions and Interference with jurisdiction qualifies as a small entity Constitutionally Protected Property Regulatory Analyses and that this rule would have a Rights. The Coast Guard developed this significant economic impact on it, proposed rule after considering please submit a comment (see Civil Justice Reform numerous statutes and executive orders ADDRESSES) explaining why you think it This proposed rule meets applicable related to rulemaking. Below we qualifies and how and to what degree standards in sections 3(a) and 3(b)(2) of summarize our analyses based on 13 of this rule would economically affect it. Executive Order 12988, Civil Justice these statutes or executive orders. Reform, to minimize litigation, Assistance for Small Entities eliminate ambiguity, and reduce Regulatory Planning and Review Under section 213(a) of the Small burden. This proposed rule is not a significant Business Regulatory Enforcement regulatory action under section 3(f) of Fairness Act of 1996 (Pub. L. 104–121), Protection of Children Executive Order 12866, Regulatory we want to assist small entities in The Coast Guard has analyzed this Planning and Review, and does not understanding this proposed rule so that proposed rule under Executive Order require an assessment of potential costs they can better evaluate its effects on 13045, Protection of Children from

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Environmental Health Risks and Safety U.S.C. 272 note) directs agencies to use environmental impact from this Risks. This rule is not an economically voluntary consensus standards in their proposed rule. significant rule and would not create an regulatory activities unless the agency List of Subjects in 33 CFR Part 147 environmental risk to health or risk to provides Congress, through the Office of safety that might disproportionately Management and Budget, with an Continental shelf, Marine safety, affect children. explanation of why using these Navigation (water). Indian Tribal Governments standards would be inconsistent with For the reasons discussed in the applicable law or otherwise impractical. This proposed rule does not have preamble, the Coast Guard proposes to Voluntary consensus standards are amend 33 CFR part 147 as follows: tribal implications under Executive technical standards (e.g., specifications Order 13175, Consultation and of materials, performance, design, or PART 147—SAFETY ZONES Coordination with Indian Tribal operation; test methods; sampling Governments, because it would not have procedures; and related management 1. The authority citation for part 147 a substantial direct effect on one or systems practices) that are developed or continues to read as follows: more Indian tribes, on the relationship adopted by voluntary consensus Authority: 14 U.S.C. 85; 43 U.S.C. 1333; between the Federal Government and standards bodies. Department of Homeland Security Delegation Indian tribes, or on the distribution of This proposed rule does not use No. 0170.1. power and responsibilities between the technical standards. Therefore, we did Federal Government and Indian tribes. 2. Add § 147.T17–0024 to read as not consider the use of voluntary follows: Energy Effects consensus standards. § 147.T17–0024 Safety Zone; NOBLE The Coast Guard analyzed this Environment proposed rule under Executive Order DISCOVERER, Outer Continental Shelf We have analyzed this proposed rule Drillship, Chukchi and Beaufort Seas, 13211, Actions Concerning Regulations Alaska. That Significantly Affect Energy Supply, under Department of Homeland Distribution, or Use. We have Security Management Directive 023–01 (a) Description. The NOBLE determined that it is not a ‘‘significant and Commandant Instruction DISCOVERER will be engaged in energy action’’ under that order because M16475.lD, which guide the Coast exploratory drilling operations at it is not a ‘‘significant regulatory action’’ Guard in complying with the National various locations in the Chukchi and under Executive Order 12866 and is not Environmental Policy Act of 1969 Beaufort Seas from July 1, 2012 through likely to have a significant adverse effect (NEPA) (42 U.S.C. 4321–4370f), and October 31, 2012. The DRILLSHIP will on the supply, distribution, or use of have made a preliminary determination be anchored while conducting energy. The Administrator of the Office that this action is one of a category of exploratory drilling operations with the of Information and Regulatory Affairs actions that do not individually or center point of the vessel located at the has not designated it as a significant cumulatively have a significant effect on coordinates listed in Table 1. These energy action. Therefore, it does not the human environment. A preliminary coordinates are based upon [NAD 83] require a Statement of Energy Effects environmental analysis checklist UTM Zone 3. The area within 500 under Executive Order 13211. supporting this determination is meters (1,640.4 feet) from each point on available in the docket where indicated the outer edge of the vessel while Technical Standards under ADDRESSES. We seek any anchored on location is a safety zone. The National Technology Transfer comments or information that may lead Lawful demonstrations may be and Advancement Act (NTTAA) (15 to the discovery of a significant conducted outside of the safety zone.

TABLE 1—PROSPECT LOCATIONS

Prospect Well Area Block Lease No. Latitude Longitude

Burger ...... A Posey ...... 6764 OCS–Y–2280 N71°18′30.92″ W163°12′43.17″ Burger ...... F Posey ...... 6714 OCS–Y–2267 N71°20′13.96″ W163°12′21.75″ Burger ...... J Posey ...... 6912 OCS–Y–2321 N71°10′24.03″ W163°28′18.52″ Burger ...... R Posey ...... 6812 OCS–Y–2294 N71°16′06.57″ W163°30′39.44″ Burger ...... S Posey ...... 6762 OCS–Y–2278 N71°19′25.79″ W163°28′40.84″ Burger ...... V Posey ...... 6915 OCS–Y–2324 N71°10′33.39″ W163°04′21.23″ Sivulliq ...... G Flaxman Is...... 6658 OCS–Y–1805 N70°23′46.82″ W146°01′03.46″ Sivulliq ...... N Flaxman Is...... 6658 OCS–Y–1805 N70°23′29.58″ W145°58′52.53″ Torpedo ...... H Flaxman Is...... 6610 OCS–Y–1941 N70°27′01.62″ W145°49′32.07″ Torpedo ...... J Flaxman Is...... 6559 OCS–Y–1936 N70°28′56.94″ W145°53′47.15″

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(b) Regulation. No vessel may enter or Floor, Room W12–140, 1200 New Jersey ‘‘submit a comment’’ box, which will remain in this safety zone except the Avenue SE., Washington, DC 20590– then become highlighted in blue. In the following: 0001. ‘‘Document Type’’ drop down menu (1) An attending vessel; or (4) Hand delivery: Same as mail select ‘‘Proposed Rule’’ and insert (2) A vessel authorized by the address above, between 9 a.m. and ‘‘USCG–2011–1143’’ in the ‘‘Keyword’’ Commander, Seventeenth Coast Guard 5 p.m., Monday through Friday, except box. Click ‘‘Search’’ then click on the District, or a designated representative. Federal holidays. The telephone number balloon shape in the ‘‘Actions’’ column. (c) Penalties. Violation of this is 202–366–9329. If you submit your comments by mail or regulation may result in criminal or To avoid duplication, please use only hand delivery, submit them in an civil penalties, or both. one of these four methods. See the unbound format, no larger than 81⁄2 by Dated: February 2, 2012. ‘‘Public Participation and Request for 11 inches, suitable for copying and Thomas P. Ostebo, Comments’’ portion of the electronic filing. If you submit Rear Admiral, U.S. Coast Guard, Commander, SUPPLEMENTARY INFORMATION section comments by mail and would like to Seventeenth Coast Guard District. below for instructions on submitting know that they reached the Facility, [FR Doc. 2012–3998 Filed 2–22–12; 8:45 am] comments. please enclose a stamped, self-addressed BILLING CODE 9110–04–P FOR FURTHER INFORMATION CONTACT: If postcard or envelope. We will consider you have questions on this proposed all comments and material received rule, call or email LT Jason Smilie, during the comment period and may DEPARTMENT OF HOMELAND Seventeenth Coast Guard District (dpi); change the rule based on your SECURITY telephone 907–463–2809, comments. [email protected]. If you have Coast Guard questions on viewing or submitting Viewing Comments and Documents material to the docket, call Renee V. 33 CFR Part 147 To view comments, as well as Wright, Program Manager, Docket documents mentioned in this preamble [Docket No. USCG–2011–1143] Operations, telephone 202–366–9826. as being available in the docket, go to SUPPLEMENTARY INFORMATION: RIN 1625–AA00 http://www.regulations.gov, click on the Public Participation and Request for ‘‘read comments’’ box, which will then Safety Zone; KULLUK, Outer Comments become highlighted in blue. In the Continental Shelf Mobile Offshore ‘‘Keyword’’ box, insert USCG–2011– We encourage you to participate in Drilling Unit (MODU), Beaufort Sea, AK 1143 and click ‘‘Search.’’ Click the this rulemaking by submitting ‘‘open Docket Folder’’ in the ‘‘Actions’’ AGENCY: Coast Guard, DHS. comments and related materials. All column. ACTION: Notice of proposed rulemaking. comments received will be posted without change to http:// You may also visit the Docket SUMMARY: The Coast Guard proposes a www.regulations.gov and will include Management Facility in Room W12–140 500-meter safety zone around the any personal information you have on the ground floor of the Department MODU KULLUK, while anchored or provided. of Transportation West Building, 1200 deploying and recovering moorings on New Jersey Avenue SE., Washington, location in order to drill exploratory Submitting Comments DC 20590, between 9 a.m. and 5 p.m., wells at various prospects located in the If you submit a comment, please Monday through Friday, except Federal Beaufort Sea Outer Continental Shelf, include the docket number for this holidays. We have an agreement with Alaska, from 12:01 a.m. on July 1, 2012 rulemaking (USCG–2011–1143), the Department of Transportation to use through 11:59 p.m. on October 31, 2012. indicate the specific section of this the Docket Management Facility. See TABLE 1. The purpose of the document to which each comment temporary safety zones is to protect the applies, and provide a reason for each Privacy Act MODU from vessels operating outside suggestion or recommendation. You Anyone can search the electronic the normal shipping channels and may submit your comments and form of comments received into any of fairways. Placing a safety zone around material online (via http:// our dockets by the name of the the MODU will significantly reduce the www.regulations.gov) or by fax, mail, or individual submitting the comment (or threat of allisions that could result in oil hand delivery, but please use only one signing the comment, if submitted on spills, and releases of natural gas, and of these means. If you submit a behalf of an association, business, labor thereby protect the safety of life, comment online via http:// property, and the environment. Lawful www.regulations.gov, it will be union, etc.). You may review a Privacy demonstrations may be conducted considered received by the Coast Guard Act notice regarding our public dockets outside of the safety zone. when you successfully transmit the in the January 17, 2008 issue of the Federal Register (73 FR 3316). DATES: Comments and related material comment. If you fax, hand deliver, or must be received by the Coast Guard on mail your comment, it will be Public Meeting or before March 26, 2012. considered as having been received by ADDRESSES: You may submit comments the Coast Guard when it is received at The Coast Guard does not plan to identified by docket number USCG– the Docket Management Facility. We hold a public meeting. But you may 2011–1143 using any one of the recommend that you include your name submit a request for one by using one following methods: and a mailing address, an email address, of the four methods specified under (1) Federal eRulemaking Portal: or a telephone number in the body of ADDRESSES. Please explain why you http://www.regulations.gov. your document so that we can contact believe a public meeting would be (2) Fax: 202–493–2251. you if we have questions regarding your beneficial. If we determine that one (3) Mail: Docket Management Facility submission. would aid this rulemaking, we will hold (M–30), U.S. Department of To submit your comment online, go to one at a time and place announced by Transportation, West Building Ground http://www.regulations.gov, click on the a later notice in the Federal Register.

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Basis and Purpose vessel; (3) concerns for the environment regulations warrant the establishment of The Coast Guard proposes the given the sensitivity of the the proposed temporary safety zone. establishment of a temporary safety environmental and subsistence The proposed regulation would zone around the MODU KULLUK while importance to the indigenous significantly reduce the threat of anchored or deploying and recovering population; (4) the lack of any allisions that could result in oil spills, moorings on location in order to drill established shipping fairways, fueling and releases. Furthermore, the proposed exploratory wells in several prospects and supply storage/operations, and size regulation would increase the safety of located in the Beaufort Sea during the of the crew increase the likelihood that life, property, and the environment in 2012 drilling season. an allision would result in a the Beaufort Sea by prohibiting entry The request for the temporary safety catastrophic event; (5) the recent and into the zone unless specifically zone was made by Shell Exploration & potential future maritime traffic in the authorized by the Commander, Production Company due to safety vicinity of the proposed areas; (6) the Seventeenth Coast Guard District, or a concerns for both the personnel aboard types of vessels navigating in the designated representative. Due to the the KULLUK and the environment. vicinity of the proposed area; (7) the remote location and the need to protect Shell Exploration & Production structural configuration of the vessel, the environment, the Coast Guard may Company indicated that it is highly and (8) the need to allow for lawful use criminal sanctions to enforce the likely that any allision or inability to demonstrations without endangering the safety zone as appropriate. identify, monitor or mitigate any risks or safe operation of the rig. Navigation in The proposed temporary safety zone threats, including ice-related hazards the vicinity of the safety zone could will be around the KULLUK while that might be encountered, would result consist of large commercial shipping anchored or deploying and recovering in a catastrophic event. Incursions into vessels, fishing vessels, cruise ships, moorings on location in order to drill the safety zone by unapproved vessels tugs with tows and the occasional exploratory wells in various locations in could degrade the ability to monitor and recreational vessel. For any group the Beaufort Sea Outer Continental mitigate such risks. In evaluating this intending to conduct lawful Shelf, Alaska during the 2012 request, the Coast Guard explored demonstrations in the vicinity of the rig, timeframe. relevant safety factors and considered these demonstrations must be Shell Exploration & Production several criteria, including but not conducted outside the safety zone. Company has four proposed drill sites limited to: (1) The level of shipping Results from a thorough and within the Suvulliq and Torpedo activity around the operation; (2) safety comprehensive examination of the prospects, Beaufort Sea, Alaska (See concerns for personnel aboard the criteria, IMO guidelines, and existing Table 1).

TABLE 1—PROSPECT LOCATIONS

NR06–04 Surface location (NAD 83) * Distance to Flaxman mainland Drill site Lease File No. Island Lease shore Block No. Latitude (N) Longitude (W) mi (km)

Sivulliq G ...... OCS–Y 1805 6658 70°23′46.82″ 146°01′03.46″ 16.6 (26.7) Sivulliq N ...... OCS–Y 1805 6658 70°23′29.58″ 145°58′52.53″ 16.2 (26.1) Torpedo H ...... OCS–Y 1941 6610 70°27′01.62″ 145°49′32.07″ 20.8 (33.5) Torpedo J ...... OCS–Y 1936 6559 70°28′56.94″ 145°53′47.15″ 23.1 (37.2)

During the 2012 timeframe, Shell with respect to the dates of allowed operating period. The KULLUK’s Exploration & Production Company has operating windows, whether the personnel will include its crew, as well proposed drilling up to two exploration planned drilling activity involves only as Shell employees, third party wells at the identified Beaufort Sea drilling the shallow non-objective contractors, Alaska Native Marine prospects depending on favorable ice section or penetrating potential Mammal Observers and possibly Bureau conditions, weather, sea state, and any hydrocarbon zones, the availability of of Ocean Energy Management (BOEM) other pertinent factors. Each of these permitted sites having approved or Bureau of Safety and Environmental drill sites will be permitted for drilling shallow hazards clearance, the Enforcement (BSEE) personnel. in 2012 to allow for operational anticipated duration of each While conducting exploration drilling flexibility in the event sea ice contemplated drilling activity, the operations, the KULLUK will be conditions prevent access to one of the results of preceding wells and Marine anchored. The KULLUK has an Arctic locations. The number of actual wells Mammal Monitoring and Mitigation Class IV hull design, is capable of that will be drilled will depend on ice plan requirements. drilling in up to 600 feet (ft) [182.9 conditions and the length of time All planned exploration drilling in meters (m)]) of water and is moored available for the 2012 drilling season. the identified lease blocks will be using a 12-point anchor system. The The predicted ‘‘average’’ drilling season, conducted with the KULLUK. The KULLUK’s mooring system consists of constrained by prevailing ice conditions KULLUK is a true Mobile Offshore 12 Hepburn winches located on the and regulatory restrictions, is long Drilling Unit, and is a large self- outboard side of the main deck, Anchor enough for two to three typical contained drilling vessel that offers full wires lead off the bottom of each winch exploration wells to be drilled. accommodations for up to 108 persons. drum inboard for approximately 55 ft The actual order of drilling activities The hull has been reinforced for ice (16.8 m). The wire is then redirected by will be controlled by an interplay resistance. a sheave, down through a hawse pipe to between actual ice conditions The KULLUK has a ‘‘persons on an underwater, ice protected, swivel immediately prior to a rig move, ice board’’ capacity of 108, and it is fairlead. The wire travels from the forecasts, any regulatory restrictions expected to be at capacity for most of its fairlead directly under the hull to the

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anchor system on the seafloor. The traversing waters near the proposed Guard will not retaliate against small KULLUK will have an anchor radius of safety zone will be able to safely travel entities that question or complain about 3,117 ft (950 m) for the Sivulliq drill around the zone without incurring this proposed rule or any policy or sites and 2,995 ft (913 m) for the additional costs. action of the Coast Guard. Torpedo drill sites. Anchor marker Small Entities Collection of Information buoys will delineate the outer edge of the anchor spread. The anchor spread, Under the Regulatory Flexibility Act This proposed rule would call for no which radiates from the center of the (5 U.S.C. 601–612), the Coast Guard has new collection of information under the KULLUK, may pose a fouling hazard to considered whether this proposed rule Paperwork Reduction Act of 1995 (44 any vessel attempting to anchor within would have a significant economic U.S.C. 3501–3520.). impact on a substantial number of small the anchor spread. Fouling of the Federalism KULLUK anchor lines may endanger the entities. The term ‘‘small entities’’ drillship, its 108 persons onboard, the comprises small businesses, not-for- A rule has implications for federalism third party vessel, persons onboard the profit organizations that are under Executive Order 13132, third party vessel and the environment. independently owned and operated and Federalism, if it has a substantial direct The center point of the KULLUK will are not dominant in their fields, and effect on State or local governments and be positioned within the prospect governmental jurisdictions with would either preempt State law or location in the Beaufort Sea at the populations of less than 50,000. impose a substantial direct cost of coordinates listed below (See Table 1). The Coast Guard certifies under 5 compliance on them. We have analyzed The KULLUK will move into the U.S.C. 605(b) that this proposed rule this proposed rule under that Order and Beaufort Sea on or about July 1, 2012 would not have a significant economic have determined that it does not have and onto a prospect location when ice impact on a substantial number of small implications for federalism. entities. This proposed rule would affect allows. Drilling will be curtailed on or Unfunded Mandates Reform Act before October 31, 2012. The MODU the following entities, some of which and support vessels will depart the might be small entities: The owners or The Unfunded Mandates Reform Act Beaufort Sea at the conclusion of the operators of vessels intending to transit of 1995 (2 U.S.C. 1531–1538) requires 2012 drilling season. or anchor in the Sivulliq and Torpedo Federal agencies to assess the effects of Prospect of the Beaufort Sea, including their discretionary regulatory actions. In Discussion of Proposed Rule Flaxman Island blocks 6610, 6658 and particular, the Act addresses actions The proposed temporary safety zone 6659 (See Table 1). that may result in the expenditure by a would encompass the area within 500 This safety zone will not have a State, local, or tribal government, in the meters from each point on the outer significant economic impact or a aggregate, or by the private sector of edge of the KULLUK while anchored on substantial number of small entities for $100,000,000 (adjusted for inflation) or location in order to drill exploratory the following reasons: This rule will more in any one year. Though this wells or deploying and recovering enforce a safety zone around a drillship proposed rule would not result in such moorings on location in order to drill facility that is in an area of the Flaxman expenditure, we do discuss the effects of exploratory wells. No vessel would be Island of the Beaufort Sea not this rule elsewhere in this preamble. allowed to enter or remain in this frequented by vessel traffic and is not in Taking of Private Property proposed safety zone except the close proximity to a safety fairway. following: An attending vessel or a Further, vessel traffic can pass safely This proposed rule would not cause a vessel authorized by the Commander, around the safety zone without taking of private property or otherwise Seventeenth Coast Guard District or a incurring additional costs. have taking implications under designated representative. They may be If you think that your business, Executive Order 12630, Governmental contacted on VHF–FM Channel 13 or 16 organization, or governmental Actions and Interference with or by telephone at 907–463–2000. jurisdiction qualifies as a small entity Constitutionally Protected Property and that this rule would have a Rights. Regulatory Analyses significant economic impact on it, The Coast Guard developed this please submit a comment (see Civil Justice Reform proposed rule after considering ADDRESSES) explaining why you think it This proposed rule meets applicable numerous statutes and executive orders qualifies and how and to what degree standards in sections 3(a) and 3(b)(2) of related to rulemaking. Below we this rule would economically affect it. Executive Order 12988, Civil Justice Reform, to minimize litigation, summarize our analyses based on 13 of Assistance for Small Entities these statutes or executive orders. eliminate ambiguity, and reduce Under section 213(a) of the Small burden. Regulatory Planning and Review Business Regulatory Enforcement This proposed rule is not a significant Fairness Act of 1996 (Pub. L. 104–121), Protection of Children regulatory action under section 3(f) of we want to assist small entities in The Coast Guard has analyzed this Executive Order 12866, Regulatory understanding this proposed rule so that proposed rule under Executive Order Planning and Review, and does not they can better evaluate its effects on 13045, Protection of Children from require an assessment of potential costs them and participate in the rulemaking. Environmental Health Risks and Safety and benefits under section 6(a)(3) of that If the rule would affect your small Risks. This rule is not an economically Order. The Office of Management and business, organization, or governmental significant rule and would not create an Budget has not reviewed it under that jurisdiction and you have questions environmental risk to health or risk to Order. concerning its provisions or options for safety that might disproportionately This rule is not a significant compliance, please contact LT Jason affect children. regulatory action due to the location of Smilie, Coast Guard Seventeenth the MODU KULLUK on the Outer District, Office of Prevention; telephone Indian Tribal Governments Continental Shelf and its distance from 907–463–2809, This proposed rule does not have both land and safety fairways. Vessels [email protected]. The Coast tribal implications under Executive

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Order 13175, Consultation and provides Congress, through the Office of under ADDRESSES. We seek any Coordination with Indian Tribal Management and Budget, with an comments or information that may lead Governments, because it would not have explanation of why using these to the discovery of a significant a substantial direct effect on one or standards would be inconsistent with environmental impact from this more Indian tribes, on the relationship applicable law or otherwise impractical. proposed rule. between the Federal Government and Voluntary consensus standards are List of Subjects in 33 CFR Part 147 Indian tribes, or on the distribution of technical standards (e.g., specifications power and responsibilities between the of materials, performance, design, or Continental shelf, Marine safety, Federal Government and Indian tribes. operation; test methods; sampling Navigation (water). procedures; and related management Energy Effects For the reasons discussed in the systems practices) that are developed or preamble, the Coast Guard proposes to The Coast Guard analyzed this adopted by voluntary consensus amend 33 CFR part 147 as follows: proposed rule under Executive Order standards bodies. 13211, Actions Concerning Regulations This proposed rule does not use PART 147—SAFETY ZONES That Significantly Affect Energy Supply, technical standards. Therefore, we did 1. The authority citation for part 147 Distribution, or Use. We have not consider the use of voluntary continues to read as follows: determined that it is not a ‘‘significant consensus standards. energy action’’ under that order because Authority: 14 U.S.C. 85; 43 U.S.C. 1333; Environment it is not a ‘‘significant regulatory action’’ Department of Homeland Security Delegation under Executive Order 12866 and is not We have analyzed this proposed rule No. 0170.1. likely to have a significant adverse effect under Department of Homeland 2. Add § 147.T17–1143 to read as on the supply, distribution, or use of Security Management Directive 023–01 follows: § 147.T17–1143 Safety Zone; energy. The Administrator of the Office and Commandant Instruction KULLUK, Outer Continental Shelf of Information and Regulatory Affairs M16475.lD, which guide the Coast Mobile Offshore Drilling Unit (MODU), has not designated it as a significant Guard in complying with the National Beaufort Sea, Alaska. energy action. Therefore, it does not Environmental Policy Act of 1969 (a) Description. The KULLUK will be require a Statement of Energy Effects (NEPA) (42 U.S.C. 4321–4370f), and engaged in exploratory drilling under Executive Order 13211. have made a preliminary determination operations at various locations in the that this action is one of a category of Beaufort Sea from July 1, 2012 through Technical Standards actions that do not individually or October 31, 2012. The MODU will be The National Technology Transfer cumulatively have a significant effect on anchored while conducting exploratory and Advancement Act (NTTAA) (15 the human environment. A preliminary drilling operations with the center point U.S.C. 272 note) directs agencies to use environmental analysis checklist of the vessel located at the coordinates voluntary consensus standards in their supporting this determination is listed in Table 1. These coordinates are regulatory activities unless the agency available in the docket where indicated based upon [NAD 83] UTM Zone 3.

TABLE 1—PROSPECT LOCATIONS

NR06–04 Surface location (NAD 83) * Distance to Flaxman mainland Drill site Lease File No. Island Lease shore Block No. Latitude (N) Longitude (W) mi (km)

Sivulliq G ...... OCS–Y 1805 6658 70°23′46.82″ 146°01′03.46″ 16.6 (26.7) Sivulliq N ...... OCS–Y 1805 6658 70°23′29.58″ 145°58′52.53″ 16.2 (26.1) Torpedo H ...... OCS–Y 1941 6610 70°27′01.62″ 145°49′32.07″ 20.8 (33.5) Torpedo J ...... OCS–Y 1936 6559 70°28′56.94″ 145°53′47.15″ 23.1 (37.2)

The area within 500 meters (1,640.4 Dated: February 2, 2012. SUMMARY: The Department of the feet) from each point on the outer edge Thomas P. Ostebo, Treasury is proposing to amend the of the vessel while anchored on location Rear Admiral, U.S. Coast Guard, Commander, Department of the Treasury Acquisition is a safety zone. Lawful demonstrations Seventeenth Coast Guard District. Regulation (DTAR) to implement use of may be conducted outside of the safety [FR Doc. 2012–4025 Filed 2–22–12; 8:45 am] the Internet Payment Platform, a zone. BILLING CODE 9110–04–P centralized electronic invoicing and payment information system, and to (b) Regulation. No vessel may enter or change the definition of bureau to remain in this safety zone except the DEPARTMENT OF THE TREASURY reflect the consolidation on July 21, following: 2011 of the Office of Thrift Supervision (1) An attending vessel; or 48 CFR Chapter 10 with the Office of the Comptroller of the Currency. (2) A vessel authorized by the RIN 1505–AC41 DATES: Commander, Seventeenth Coast Guard Comment due date: April 23, 2012. District, or a designated representative. Department of the Treasury Acquisition Regulation; Internet ADDRESSES: Treasury invites comments (c) Penalties. Violation of this Payment Platform on the topics addressed in this proposed regulation may result in criminal or rule. Comments may be submitted to civil penalties, or both. AGENCY: Office of the Procurement Executive, Treasury. Treasury by any of the following methods: By submitting electronic ACTION: Notice of proposed rulemaking. comments through the federal

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government e-rulemaking portal, documentation; reducing the time of that the rule will not have a significant www.regulations.gov, by email to agency personnel researching and economic impact on a substantial [email protected]; or by answering payment status questions by number of small entities. sending paper comments to Department providing vendor and department-wide It is hereby certified that this of the Treasury, Office of the visibility into contract payments. proposed rule would not have a Procurement Executive, Attn: Ronald IPP benefits vendors by reducing time significant economic impact on a Backes, 1500 Pennsylvania Avenue to payment, creating a standard set of substantial number of small entities. NW., Metropolitan Square Room 6N501, electronic data to submit payment The IPP will benefit vendors by Washington, DC 20220. requests to the Federal government; reducing time to payment, creating a In general, Treasury will post all reducing costs from having multiple standard set of electronic data to submit comments to www.regulations.gov processes and requirements; reducing payment requests to the Federal without change, including any business paper and postage costs, improving cash government; reducing costs associated or personal information provided, such management by eliminating the time with adhering to multiple processes and as names, addresses, email addresses, or delays associates with submitting and requirements for different federal telephone numbers. Treasury will also routing paper; and increasing agencies; reducing paper and postage make such comments available for transparency in the payment processes. costs, improving cash management by public inspection and copying in The US Treasury will support vendor eliminating the time delays associates Treasury’s Library, Room 1428, transition from paper-based payment with submitting and routing paper; and Department of the Treasury, 1500 processes to IPP through a series of increasing transparency in the payment Pennsylvania Avenue NW., Washington, Webinar and video training on various processes. The rule is intended to DC 20220, on official business days aspects of the application, including support the implementation of the IPP between the hours of 10 a.m. and 5 p.m. how to view purchase orders, submit to streamline the payment processes Eastern Time. You can make an invoices, retrieve payment information, associated with government contracts appointment to inspect comments by set notification preferences, and add and agreements. telephoning (202) 622–0990. All users to IPP accounts. The IPP Treasury contracts with more than comments, including attachments and application includes a ‘‘Collector User 4,000 small businesses annually. This other supporting materials received are Guide’’ on vendor landing page. rule is expected to impact all small part of the public record and subject to Treasury also operates customer support businesses that contract with Treasury. public disclosure. You should submit services email and toll free numbers While Treasury anticipates that a only information that you wish to make during business hours, Monday through significant number of small businesses publicly available. Friday 8 a.m.–6:30 p.m. Eastern Time. will be impacted, the economic impact In this proposed rule, the Department is minimal, and outweighed by the FOR FURTHER INFORMATION CONTACT: economic benefits of IPP. An initial cost Ronald Backes, Director, Acquisition would add a new subpart 1032.70— Electronic Submission and Processing of to small businesses in terms of changes Management, Office of the Procurement to manual, paper-based invoicing Executive, at (202) 622–5930. Payment Requests to establish the IPP. This subpart prescribes policies and processes is expected to be recouped by SUPPLEMENTARY INFORMATION: The procedures for electronic submission small businesses within a short-term Federal Acquisition Regulation (FAR) and processing of payment requests. through more efficient submission and sets forth the uniform regulation for the First, the new subpart sets forth the reporting of invoices and payments and procurement of supplies and services by scope, a definition of ‘‘payment more timely payments. No additional federal departments and agencies (title request,’’ and a description of the IPP reporting or record-keeping 48, chapter 1, of the Code of Federal policy. With limited exceptions, the requirements for small businesses result Regulations (CFR)). The Department of new provisions would establish that from this rule. Staff experienced with the Treasury Acquisition Regulations, after October 1, 2012, Treasury will the submission of paper-based payment which supplement the FAR, are codified require and contractors will submit requests will need to learn the process at 48 CFR Chapter 10. payment requests electronically. The for submitting electronic payment On July 5, 2011, the Department rule also proposes a waiver of its requests. New compliance and reporting announced that it will implement the provisions. Finally, the rule proposes requirements are not anticipated, as Internet Payment Platform (IPP) no later the text of the IPP contract clause. Government and vendor staff will be than the end of fiscal year 2012; with all This proposed rule would also make able to access data and reports directly new payment requests in FY2013 nonsubstantive, technical changes to through the IPP. processed using the IPP. The Internet update the DTAR definition of ‘‘bureau’’ This rule is related to, but not in Payment Platform (IPP) is a secure web- and would add ‘‘IPP’’ to the DTAR list conflict with, following federal rules: • based electronic invoicing and payment of abbreviations. 31 CFR Part 208 requires that most system that processes vendor payment federal payments be made data electronically, either through a Regulatory Planning and Review electronically, subject to certain waivers web-based portal or electronic This rule is not a significant established in the rule. submission, and automates the routing regulatory action as defined in section • The Prompt Payment rule at 5 CFR and approval workflow within an 3(f) of Executive Order 12866. Therefore Part 1315 requires vendors to submit agency. a regulatory assessment is not required. Electronic Funds Transfer (EFT) The IPP is provided by the information and a Taxpayer Department of the Treasury’s Financial Regulatory Flexibility Act Identification Number (TIN) as part of a Management Service through its fiscal The Regulatory Flexibility Act (5 proper invoice, unless agency agent, the Federal Reserve Bank of U.S.C. chapter 6) generally requires procedures provide otherwise. Late Boston at no cost to vendors or agencies to conduct an initial regulatory interest penalties do not apply if the government departments and agencies flexibility analysis and a final regulatory vendor has failed to submit this adopting the platform. The IPP benefits flexibility analysis of any rule subject to information. agencies by eliminating the need to file notice and comment rulemaking • 48 CFR Parts 13, 15, 32 and 52, and store paper payment requirements, unless the agency certifies addresses the use of EFT for federal

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contract payments and also provides for (10) Special Inspector General for the contractor will transition to electronic the collection of banking information Troubled Asset Relief Program submission from vendors. In particular, the FAR (SIGTARP); (c) Except as provided in paragraphs EFT rule provides EFT contract clauses (11) Treasury Inspector General for (a) and (b), Treasury officials shall that agencies should use in their Tax Administration (TIGTA); or process electronic payment submissions contracts with government vendors (12) United States Mint. through the Treasury Internet Payment requiring them to receive payments 3. Section 1002.70 is revised by Platform or successor system. electronically adding the following abbreviation in This rule would be implemented in alphabetical order to read as follows: (d) If the requirement for electronic such a manner to complement these submission of payment requests is rules. Accordingly, the undersigned 1002.70 Abbreviations. waived under paragraph (a)(2) or hereby certifies that this rule will not, * * * * * paragraph (b), the contract or alternate if promulgated, have a significant IPP Internet Payment Platform payment authorization, as applicable, economic impact on a substantial * * * * * shall specify the form and method of number of small entities. 4. Add subpart 1032.70 to read as payment request submission. Notwithstanding this certification, the follows: 1032.7003 Contract clause. Department invites comments from Subpart 1032.70—Electronic Submission Except as provided in 1032.7002(a), small businesses to concerning the and Processing of Payment Requests impact of this proposal on small use the clause at 1052.232–7003, entities. 1032.7000 Scope of subpart. Electronic Submission of Payment Requests—Internet Payment Platform, in Paperwork Reduction Act 1032.7001 Definitions. solicitations issued and contracts The information collections contained 1032.7002 Policy. awarded after October 1, 2011. in this proposed rule have been 5. Add section 1052.232–7003 to read previously approved by the Office of 1032.7003 Contract clause. as follows: Management and Budget under the 1032.7000 Scope of subpart. Paperwork Reduction Act (44 U.S.C. 1052.232–7003 Electronic Submission of 3501, et seq.) and assigned OMB control This subpart prescribes policies and Payment Requests. numbers 1505–0081; 1505–0080; and procedures for electronic submission and processing of payment requests. As prescribed in 1032.7003, use the 1505–0107. Under the Paperwork following clause: Reduction Act, an agency may not 1032.7001 Definitions. conduct or sponsor and a person is not Electronic Submission of Payment required to respond to a collection of ‘‘Payment request,’’ as used in this Requests (Date TBD) information unless it displays a valid subpart, is defined in the clause at OMB control number. 1052.232–7003, Electronic Submission (a) Definitions. As used in this clause— of Payment Requests. (1) ‘‘Payment request’’ means a bill, List of Subjects in 48 CFR Chapter 10 1032.7002 Policy. voucher, invoice, or request for contract Government procurement. financing payment with associated (a) Contracts awarded after October 1, Accordingly, the Department of the supporting documentation. The payment 2012, shall require the electronic request must comply with the requirements Treasury proposes to revise 48 CFR submission of payment requests, except Chapter 10 to read as follows: identified in FAR 32.905(b), ‘‘Payment for— documentation and process’’ and the CHAPTER 10—DEPARTMENT OF THE (1) Purchases paid for with a applicable Payment clause included in this TREASURY Government-wide commercial purchase contract. card; (b) Except as provided in paragraph (c) of 1. The authority citation for part 1002 (2) Classified contracts or purchases this clause, the Contractor shall submit continues to read as follows: when electronic submission and payment requests electronically using the Authority: 41 U.S.C. 418b. processing of payment requests could Internet Payment Platform (IPP). Information compromise classified information or regarding IPP is available on the Internet at 2. Section 1002.101 is revised to read national security; www.ipp.gov. Assistance with enrollment can as follows: (b) Where a contract otherwise be obtained by contacting the IPP Production Helpdesk via email [email protected] or 1002.101 Definitions. requires the electronic submission of phone (866) 973–3131. Bureau means any one of the invoices, the Contracting Officer may authorize alternate procedures only if (c) The Contractor may submit payment following Treasury organizations: requests using other than IPP only when the (1) Alcohol and Tobacco Tax and the Contracting Officer makes a written determination that: Contracting Officer authorizes alternate Trade Bureau (TTB); procedures in writing. (1) The Department of the Treasury is (2) Bureau of Engraving & Printing (d) If alternate payment procedures are (BEP); unable to receive electronic payment authorized, the Contractor shall include a (3) Bureau of Public Debt (BPD); requests or provide acceptance copy of the Contracting Officer’s written (4) Departmental Offices (DO); electronically; authorization with each payment request. (5) Financial Crimes Enforcement (2) The contractor has demonstrated Network (FinCEN); that electronic submission would be (End of clause) (6) Financial Management Service unduly burdensome; or Dated: February 15, 2012 (FMS); (3) The contractor is in the process of (7) Office of the Inspector General transitioning to electronic submission of Thomas A. Sharpe, Jr., (OIG); payment requests, but needs additional Senior Procurement Executive, Office of the (8) Internal Revenue Service (IRS); time to complete such transition. Procurement Executive. (9) Office of the Comptroller of the Authorizations granted on this basis [FR Doc. 2012–4216 Filed 2–22–12; 8:45 am] Currency (OCC); must specify a date by which the BILLING CODE 4810–25–P

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Notices Federal Register Vol. 77, No. 36

Thursday, February 23, 2012

This section of the FEDERAL REGISTER p.m., Eastern Time, Monday through attack. The Forest Service is working to contains documents other than rules or Friday. manage persistent and increasing proposed rules that are applicable to the SUPPLEMENTARY INFORMATION: populations of the mountain pine beetle public. Notices of hearings and investigations, across the Forest. As part of that larger committee meetings, agency decisions and Purpose and Need for Action effort the Forest is proposing the rulings, delegations of authority, filing of petitions and applications and agency The purposes of the project are to Mountain Pine Beetle Response Project statements of organization and functions are reduce the threat to ecosystem (MPBRP—the project). The project examples of documents appearing in this components including forest resources would be conducted as an authorized section. on National Forest System (NFS) lands hazardous fuels reduction project under from the ongoing mountain pine beetle the authority of the Healthy Forests epidemic, and to help protect local Restoration Act of 2003 (HFRA). The DEPARTMENT OF AGRICULTURE communities and resources on adjacent proposed action would treat newly lands of other ownerships from large- detected infestations that may occur on Forest Service scale wildfire by reducing hazardous about 250,000 acres of NFS lands to fuel levels. reduce and slow the spread of MPB. Black Hills National Forest, Custer, Specifically, newly infested trees would South Dakota—Mountain Pine Beetle Proposed Action be removed, or made unsuitable for Response Project Background The Black Hills National occupancy by beetles, before beetles can AGENCY: Forest Service, USDA. Forest (the Forest) lies in the Black Hills mature and further disperse to other ACTION: Corrected notice of intent to of western South Dakota and eastern trees. Some surrounding mature trees at prepare an environmental impact Wyoming. Of the roughly 1.5 million risk of infestation may also be removed. statement. acres in the Black Hills, about 1.2 A variety of treatment options would be million acres are National Forest System available for use depending on SUMMARY: This project proposes to treat (NFS) lands, with lands of other conditions encountered on infested areas newly infested by mountain pine ownership comprising another 300,000 sites. Actual treatments used at any beetles on approximately 250,000 acres acres. The predominant tree species on specific location would be determined of the Black Hills National Forest. lands of all ownerships in the Black at the time of implementation. Treatments would occur in both South Hills is ponderosa pine (Pinus Treatment options would include Dakota and Wyoming, and on all four ponderosae). Since 1997 the Black Hills commercial tree removal using ground- Ranger Districts. Treatments would be area has experienced a significant based or cable logging equipment, or carried out within the scope of direction increase in pine tree mortality from an helicopter; non-commercial methods provided in the Revised Land and outbreak of mountain pine beetle such as chipping trees or cutting them Resource Management Plan for the (Dendroctonus ponderosae). In many into short sections; and spraying small Black Hills National Forest, as amended parts of the Forest beetle populations areas of trees to prevent infestation. (Forest Plan). The original notice of are at or approaching epidemic levels. Some temporary road construction is intent for this project was published in The outbreak in the Black Hills is part proposed, although generally road the Federal Register on Monday, August of a larger bark beetle epidemic which access would use existing road 8, 2011 (76 FR 48120). This corrected has recently affected more than 40 templates where available. Roads would notice of intent is being published now million acres of forest land in the be closed after use. because the treatment area acreage has western United States. Possible Alternatives changed from 325,000 to 250,000, and In the Black Hills mountain pine because an additional alternative has beetles (MPB) typically prefer stands of The No Action alternative would not been developed. Were it to be selected, dense, mature pine trees. Tree stands in authorize any actions on the project area a Forest Plan amendment would be this condition are frequent and at this time. One other alternative was needed to implement that alternative. continuous throughout the area. Once developed for detailed consideration The original NOI did not identify the attacked by beetles, most trees typically based on scoping comments. need for a Forest Plan amendment as die, and eventually fall to the ground, Lead and Cooperating Agencies part of the Decision to be Made. adding dead and dry fuels within an No cooperating agencies have been DATES: The draft environmental impact area already rated as having high identified. statement (DEIS) is expected in March wildfire hazard. Since 1980, due to 2012, and the final environmental several factors including drought the Responsible Official impact statement is expected in August Forest has seen a dramatic increase in The Responsible Official for this 2012. acreage burned by wildfires. In that project is the Forest Supervisor, Black FOR FURTHER INFORMATION CONTACT: period over 250,000 acres have burned, Hills National Forest, 1019 North 5th Katie Van-Alstyne, project team leader, consuming forest resources and posing Avenue, Custer, South Dakota, 57730. Black Hills National Forest, Mystic threats to lands of other ownership Ranger District, Rapid City, SD 57701, intermingled with NFS lands. Nature of Decision To Be Made phone (605) 343–1567. Individuals who Proposal The primary management After considering the proposed action use telecommunication devices for the tools for reducing beetle-caused tree and any alternatives, the environmental deaf (TDD) may call the Federal mortality are removing infested trees, analysis, and public comment, the Information Relay Service (FIRS) at 1– and reducing the density of remaining Forest Supervisor will decide whether 800–877–8339 between 8 a.m. and 8 trees to lessen the susceptibility to to conduct treatments to reduce and

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slow the progress of the beetle meetings will be held during the DEPARTMENT OF AGRICULTURE epidemic. If an action alternative is comment period on the DEIS. selected, the Supervisor will decide The Forest Service recognizes the Forest Service where treatments may occur, and what broad public interest in the actions are appropriate and may be communities and counties lying in or Request for Proposals: 2012 taken. The Supervisor will also decide adjacent to the Black Hills, as well as Hazardous Fuels Woody Biomass whether to amend the Forest Plan as the States of South Dakota and Utilization Grant Program part of the decision, and if so, the nature Wyoming. The initial mailing list for of that amendment. Finally, the decision this project includes counties and AGENCY: Forest Service, USDA. municipalities lying wholly or partially will include the scope of monitoring ACTION: Notice; Correction. that should occur. within the Forest boundary. It is important that reviewers provide Scoping Process their comments at such times and in SUMMARY: The Department of The original notice of intent initiated such manner that they are useful to the Agriculture (USDA), Forest Service, the scoping process, which guides the agency’s preparation of the State and Private Forestry (S&PF), development of the environmental environmental impact statement. Technology Marketing Unit, located at impact statement. The Forest Service Therefore, comments should be the Forest Products Laboratory, sought to involve interested parties in provided prior to the close of the published a document in the Federal identifying issues related to responding comment period and should clearly Register of February 6, 2011, concerning to and managing the ongoing insect articulate the reviewer’s concerns and requests for grant applications for wood outbreak. Public comment has helped contentions. energy projects that require engineering the planning team identify key issues Comments received in response to services. The document contained and opportunities to develop this solicitation, including names and incorrect dates. appropriate responses and alternatives, addresses of those who comment, will ADDRESSES: All applications must be and monitoring strategies, and to be part of the public record for this sent to the respective Forest Service evaluate the effects of the proposal. proposed action. Comments submitted anonymously will be accepted and Regional Office listed below for initial Three public meetings were held at considered, however. review. These offices will be the point the scoping stage of project analysis, on of contact for final awards. August 23, 2011, in Sundance, Dated: February 15, 2012. Wyoming, at the Crook County Dennis Jaeger, Courthouse; August 25 in Hill City, Deputy Forest Supervisor, Black Hills South Dakota, at the high school; and National Forest. August 30 in Spearfish, SD, at the [FR Doc. 2012–4174 Filed 2–22–12; 8:45 am] Holiday Inn. In addition, three public BILLING CODE 3410–11–P

Forest Service Region 1 (MT, ND, Northern ID & Northwestern SD), Forest Service Region 2 (CO, , NE, SD, & WY), ATT: Susan Ford, ATT: Angela Farr, USDA Forest Service, Northern Region (R1), Fed- USDA Forest Service, Rocky Mountain Region (R2), 740 Simms St., eral Building, 200 East Broadway, Missoula, MT 59807, Golden, CO 80401–4702, [email protected], (303) 275–5742. [email protected], (406) 329–3521.

Forest Service Region 3 (AZ & NM), ATT: Jerry Payne, USDA Forest Forest Service Region 4 (Southern ID, NV, UT, & Western WY), ATT: Service, Southwestern Region (R3), 333 Broadway Blvd., SE., Albu- Scott Bell, USDA Forest Service, Intermountain Region (R4), Federal querque, NM 87102, [email protected], (505) 842–3391. Building, 324 25th St., Ogden, UT 84401, [email protected], (801) 625–5259.

Forest Service Region 5 (CA, HI, Guam and Trust Territories of the Pa- Forest Service Region 6 (OR & WA), ATT: Ron Saranich, USDA For- cific Islands), ATT: Larry Swan, USDA Forest Service, Pacific South- est Service, Pacific Northwest Region (R6), 333 SW 1st Ave., Port- west Region (R5), 1323 Club Drive, Vallejo, CA 95492–1110, land, OR 97204, [email protected], (503) 808–2346. [email protected], (707) 562–8917.

Forest Service Region 8 (AL, AR, FL, GA, KY, LA, MS, NC, OK, SC, Forest Service Region 9 (CT, DL, IL, IN, IA, ME, MD, MA, MI, MN, TN, TX, VA, Virgin Islands & Puerto Rico), ATT: Dan Len, USDA MO, NH, , NY, OH, PA, RI, VT, WV, WI), ATT: Lew McCreery, Forest Service, Southern Region (R8), 1720 Peachtree Rd NW., At- Northeastern Area—S&PF, 180 Canfield St., Morgantown, WV lanta, GA 30309, [email protected], (404) 347–4034. 26505, [email protected], (304) 285–1538.

Forest Service Region 10 (Alaska), ATT: Daniel Parrent, USDA Forest Region 10 address after February 15, 2012: Forest Service Region 10 Service, Alaska Region (R10), 3301 C Street, Suite 202, Anchorage, (Alaska), ATT: Daniel Parrent, USDA Forest Service, Alaska Region AK 99503–3956, [email protected], (907) 743–9467. (R10), 161 East 1st Avenue, Door 8, Anchorage, AK 99501, [email protected], (907) 743–9467.

Detailed information regarding what to Pinchot Dr., Madison, Wisconsin Program Manager of the Technology include in the application, definitions of 53726–2398, 608–231–9504. Marketing Unit, Madison, WI (608) 231– terms, eligibility, and necessary FOR FURTHER INFORMATION CONTACT: For 9504, [email protected]. Individuals who prerequisites for consideration are questions regarding the grant use telecommunication devices for the available at www.fpl.fs.fed.us/tmu, and application or administrative deaf (TDD) may call the Federal Relay at www.grants.gov. Paper copies of the regulations, contact your appropriate Service (FRS) at 1–800–877–8339 information are also available by Forest Service Regional Biomass twenty-four hours a day, every day of contacting the Forest Service, S&PF Coordinator as listed in the addresses the year, including holidays. Technology Marketing Unit, One Gifford above or contact Susan LeVan-Green,

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Correction and regulations of the Commission and Airways, Zarand Aviation, Gatewick In the Federal Register of February 6, FACA. LLC, Pejman Mahmood Kosarayanifard, 2012, in FR DOC #2012–2545 on page Dated in Washington, DC, February 16, Mahmoud Amini, Kerman Aviation, 5756 in the third column, correct the 2012. Sirjanco Trading LLC, and Ali Eslamian, DATES caption to read: Peter Minarik, as I find that renewal of the Temporary Denial Order (‘‘TDO’’) is necessary in DATES: Monday April 2, 2012, Acting Chief, Regional Programs the public interest to prevent an Application Deadline. Coordination Unit. imminent violation of the EAR.1 Dated: February 16, 2012. [FR Doc. 2012–4152 Filed 2–22–12; 8:45 am] BILLING CODE 6335–01–P I. Procedural History Robin L. Thompson, Associate Deputy Chief, State and Private On March 17, 2008, Darryl W. Forestry. Jackson, the then-Assistant Secretary of DEPARTMENT OF COMMERCE [FR Doc. 2012–4128 Filed 2–22–12; 8:45 am] Commerce for Export Enforcement BILLING CODE 3410–11–P (‘‘Assistant Secretary’’), signed a TDO Bureau of Industry and Security denying Mahan Airways’ export Order Renewing Order Temporarily privileges for a period of 180 days on COMMISSION ON CIVIL RIGHTS Denying Export Privileges the grounds that its issuance was necessary in the public interest to Agenda and Notice of Public Meeting Mahan Airways, Mahan Tower, No. 21, prevent an imminent violation of the of the Maine Advisory Committee Azadegan St., M.A. Jenah Exp. Way, Regulations. The TDO also named as Tehran, Iran; denied persons Blue Airways, of Notice is hereby given, pursuant to Zarand Aviation, a/k/a GIE Zarand Aviation, Yerevan, Armenia (‘‘Blue Airways of the provisions of the rules and 42 Avenue Montaigne, 75008 Paris, France; Armenia’’), as well as the ‘‘Balli Group regulations of the U.S. Commission on and Respondents,’’ namely, Balli Group Civil Rights (Commission), and the 112 Avenue Kleber, 75116 Paris, France; PLC, Balli Aviation, Balli Holdings, Federal Advisory Committee Act Gatewick LLC, a/k/a Gatewick Freight & Vahid Alaghband, Hassan Alaghband, (FACA) that a briefing and planning Cargo Services, a/k/a/Gatewick Aviation Blue Sky One Ltd., Blue Sky Two Ltd., meeting of the Maine Advisory Services, G#22 Dubai Airport Free Zone, Blue Sky Three Ltd., Blue Sky Four Ltd., Committee to the Commission will P.O Box 393754, Dubai, United Arab Blue Sky Five Ltd., and Blue Sky Six convene at 9 a.m. (EST) on Monday, Emirates; Ltd., all of the United Kingdom. The April 2, 2012. The meetings will be held and TDO was issued ex parte pursuant to at the Wishcamper Auditorium, P.O. Box 52404, Dubai, United Arab Section 766.24(a), and went into effect University of Southern Maine, 34 Emirates; on March 21, 2008, the date it was Bedford Street, Portland, ME 04101. The and published in the Federal Register. purpose of the briefing meeting is to Mohamed Abdulla Alqaz Building, Al The TDO subsequently has been gather information from law Maktoum Street, Al Rigga, Dubai, United renewed in accordance with Section enforcement, government officials, Arab Emirates; 766.24(d), including most recently on human service providers, advocates and Pejman Mahmood Kosarayanifard, a/k/a August 24, 2011, with modifications community members on the issue of Kosarian Fard, P.O. Box 52404, Dubai, and the additions of related persons human trafficking in Maine. The United Arab Emirates; having been made to the TDO during Mahmoud Amini, G#22 Dubai Airport Free purpose of the planning meeting is to 2010 and 2011.2 As of March 9, 2010, Zone, P.O. Box 393754, Dubai, United Arab the Balli Group Respondents and Blue plan future activities. Emirates; Members of the public are entitled to and Airways were no longer subject to the TDO. As part of the February 25, 2011 submit written comments. The P.O. Box 52404, Dubai, United Arab comments must be received in the Emirates; TDO renewal, Gatwick LLC, Mahmoud Amini, and Pejman Mahmood regional office by Wednesday, May 2, and 2012. Comments may be mailed to the Kasarayanifard (‘‘Kosarian Fard’’) were Mohamed Abdulla Alqaz Building, Al added as related persons in accordance Eastern Regional Office, U.S. Maktoum Street, Al Rigga, Dubai, United Commission on Civil Rights, 624 9th Arab Emirates; with Section 766.23 of the Regulations. Street NW., Suite 740, Washington, DC Kerman Aviation, a/k/a GIE Kerman On July 1, 2011, the TDO was modified 20425, faxed to (202) 376–7548, or Aviation, 42 Avenue Montaigne 75008, by adding Zarand Aviation as a emailed to [email protected]. Paris, France; respondent in order to prevent an Persons needing accessibility services Sirjanco Trading, P.O. Box 8709, Dubai, imminent violation. Specifically, should contact the Eastern Regional United Arab Emirates; Zarand Aviation owned an Airbus Office at least ten (10) working days Ali Eslamian, 4th Floor, 33 Cavendish A310, an aircraft subject to the before the scheduled date of the Square, London, W1G0PW, United Regulations, that was being operated for meeting. Kingdom; the benefit of Mahan Airways in Records generated from this meeting and violation of both the TDO and the may be inspected and reproduced at the 2 Bentinck Close, Prince Albert Road St., Eastern Regional Office, as they become Johns Wood, London NW87RY, United 1 The August 24, 2011 Order was published in the available, both before and after the Kingdom Federal Register on August 31, 2011. See 76 FR meeting. Persons interested in the work Pursuant to Section 766.24 of the 54198. 2 The TDO was renewed on September 17, 2008, of this advisory committee are advised Export Administration Regulations, 15 March 16, 2009, September 11, 2009, March 9, to go to the Commission’s Web site, CFR Parts 730–774 (2011) (‘‘EAR’’ or the 2010, September 3, 2010, February 24, 2011, and www.usccr.gov, or to contact the Eastern ‘‘Regulations’’), I hereby grant the August 24, 2011. The August 24, 2011 renewal Regional Office at the above email or request of the Office of Export followed the modification of the TDO on July 1, 2011, which, as discussed above, added Zarand street address. Enforcement (‘‘OEE’’) to renew the Aviation as a respondent. Each renewal or The meeting will be conducted August 24, 2011 Order Temporarily modification order was published in the Federal pursuant to the provisions of the rules Denying the Export Privileges of Mahan Register.

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Regulations. As part of the August 24, developed over the course of this Aircraft 1–3. In a letter to the U.K. court 2011 renewal, Kerman Aviation, investigation indicating a blatant dated January 12, 2010, Mahan Airways’ Sirjanco Trading LLC, and Ali Eslamian disregard of U.S. export controls and the Chairman indicated, inter alia, that were added to the TDO as related TDO. The initial TDO was issued as a Mahan Airways opposes U.S. persons. result of evidence that showed that Government actions against Iran, that it On January 27, 2012, BIS, through its Mahan Airways and other parties continued to operate the aircraft on its Office of Export Enforcement (‘‘OEE’’), engaged in conduct prohibited by the routes in and out of Tehran (and had filed a written request for renewal of the EAR by knowingly re-exporting to Iran 158,000 ‘‘forward bookings’’ for these TDO. The current TDO dated August 24, three U.S.-origin aircraft, specifically aircraft), and that it wished to continue 2011, will expire, unless renewed, on Boeing 747s (‘‘Aircraft 1–3’’), items to do so and would pay damages if February 19, 2012. Notice of the renewal subject to the EAR and classified under required by that court, rather than request was provided to Mahan Airways Export Control Classification Number ground the aircraft. and Zarand Aviation by delivery of a (‘‘ECCN’’) 9A991.b, without the required The September 3, 2010 Renewal copy of the request in accordance with U.S. Government authorization. Further Order pointed out that Mahan Airways’ Sections 766.5 and 766.24(d) of the evidence submitted by BIS indicated violations of the TDO extended beyond Regulations. No opposition to any that Mahan Airways was involved in the operating U.S.-origin aircraft in aspect of renewal of the TDO has been attempted re-export of three additional violation of the TDO and attempting to received from either Mahan Airways or U.S.-origin Boeing 747s (‘‘Aircraft 4–6’’) acquire additional U.S.-origin aircraft. Zarand Aviation. Further, no appeal of to Iran. In February 2009, while subject to the the related person determinations I As discussed in the September 17, TDO, Mahan Airways participated in made as part of the September 3, 2010, 2008 TDO Renewal Order, evidence the export of computer motherboards, February 25, 2011 and August 24, 2011 presented by BIS indicated that Aircraft items subject to the Regulations and Renewal Orders has been made by 1–3 continued to be flown on Mahan designated as EAR99, from the United Gatewick LLC, Kosarian Fard, Airways’ routes after issuance of the States to Iran, via the UAE, in violation Mahmoud Amini, Kerman Aviation, TDO, in violation of the Regulations and of both the TDO and the Regulations, by Sirjanco Trading LLC or Ali Eslamian.3 the TDO itself.4 It also showed that transporting and/or forwarding the Aircraft 1–3 had been flown in further computer motherboards from the UAE II. Renewal of the TDO violation of the Regulations and the to Iran. Mahan Airways’ violations were A. Legal Standard TDO on the routes of Iran Air, an facilitated by Gatewick LLC, which not Iranian Government airline. Moreover, only participated in the transaction, but Pursuant to Section 766.24, BIS may as discussed in the March 16, 2009, also has stated to BIS that it is Mahan issue or renew an order temporarily September 11, 2009 and March 9, 2010 Airways’ sole booking agent for cargo denying a respondent’s export privileges Renewal Orders, Mahan Airways and freight forwarding services in the upon a showing that the order is registered Aircraft 1–3 in Iran, obtained UAE. necessary in the public interest to Iranian tail numbers for them (including Moreover, in a January 24, 2011 filing prevent an ‘‘imminent violation’’ of the EP–MNA and EP–MNB), and continued in the U.K. Court, Mahan Airways Regulations. 15 CFR 766.24(b)(1) and to operate at least two of them in asserted that Aircraft 1–3 were not being 776.24(d). ‘‘A violation may be violation of the Regulations and the used, but stated in pertinent part that ‘imminent’ either in time or degree of TDO,5 while also committing an the aircraft were being maintained in likelihood.’’ 15 CFR 766.24(b)(3). BIS additional knowing and willful Iran especially ‘‘in an airworthy may show ‘‘either that a violation is violation of the Regulations and the condition’’ and that, depending on the about to occur, or that the general TDO when it negotiated for and outcome of its U.K. Court appeal, the circumstances of the matter under acquired an additional U.S.-origin aircraft ‘‘could immediately go back into investigation or case under criminal or aircraft. The additional acquired aircraft service * * * on international routes administrative charges demonstrate a was an MD–82 aircraft, which into and out of Iran.’’ Mahan Airways’ likelihood of future violations.’’ Id. As subsequently was painted in Mahan January 24, 2011 submission to U.K. to the likelihood of future violations, Airways’ livery and flown on multiple Court of Appeal, at p. 25, paragraphs BIS may show that ‘‘the violation under Mahan Airways’ routes under tail 108, 110. This clearly stated intent, both investigation or charges is significant, number TC–TUA. on its own and in conjunction with deliberate, covert and/or likely to occur The March 9, 2010 Renewal Order Mahan Airways’ prior misconduct and again, rather than technical or negligent also noted that a court in the United statements, demonstrated the need to [.]’’ Id. A ‘‘lack of information Kingdom (‘‘U.K.’’) had found Mahan renew the TDO in order to prevent establishing the precise time a violation Airways in contempt of court on imminent future violations. may occur does not preclude a finding February 1, 2010, for failing to comply More recently, as noted in the July 1, that a violation is imminent, so long as with that court’s December 21, 2009 and 2011 and August 24, 2011 Orders, there is sufficient reason to believe the January 12, 2010 orders compelling Mahan Airways has continued to evade likelihood of a violation.’’ Id. Mahan Airways to remove the Boeing U.S. export control laws by operating two Airbus A310 aircraft 6 bearing B. The TDO and BIS’s Request for 747s from Iran and ground them in the Mahan Airways’ livery, colors and logo Renewal Netherlands. Mahan Airways and the Balli Group Respondents had been on flights into and out of Iran. The OEE’s request for renewal is based litigating before the U.K. court upon the facts underlying the issuance concerning ownership and control of 6 The Airbus A310s are powered with U.S.-origin of the initial TDO and the TDO renewals engines. The engines are subject to the EAR and classified under Export Control Classification in this matter and the evidence 4 Engaging in conduct prohibited by a denial (‘‘ECCN’’) 9A991.d. The Airbus A310s contain order violates the Regulations. 15 CFR 764.2(a) and controlled U.S.-origin items valued at more than 10 3 A party named or added as a related person may (k). percent of the total value of the aircraft and as a not oppose the issuance or renewal of the 5 The third Boeing 747 appeared to have result are subject to the EAR. They are classified underlying temporary denial order, but may file an undergone significant service maintenance and may under ECCN 9A991.b. The reexport of these aircraft appeal of the related person determination in not have been operational at the time of the to Iran requires U.S. Government authorization accordance with Section 766.23(c). March 9, 2010 Renewal Order. pursuant to Section 746.7 of the Regulations.

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aircraft are owned, respectively, by for the engine in April 2010. In spite of 52404, Dubai, United Arab Emirates; Zarand Aviation and Kerman Aviation, being added to the TDO on August 24, MAHMOUD AMINI, G#22 Dubai entities whose corporate registrations 2011, Eslamian signed a second letter of Airport Free Zone, P.O. Box 393754, both list Mahan Air General Trading as intent with the Brazilian airline Dubai, United Arab Emirates, and P.O. a member of their Groupement D’interet regarding these two A–320 aircraft on Box 52404, Dubai, United Arab Economique (‘‘Economic Interest September 28, 2011, and at least as Emirates, and Mohamed Abdulla Alqaz Group’’). 7 recently as December 2011, his efforts to Building, Al Maktoum Street, Al Rigga, At the time of the July 1, 2011 and acquire both the aircraft and the engine Dubai, United Arab Emirates; KERMAN August 24, 2011 Orders, these Airbus continued. AVIATION A/K/A GIE KERMAN A310s were registered in France (with C. Findings AVIATION, 42 Avenue Montaigne tail numbers F–OJHH and F–OJHI, 75008, Paris, France; SIRJANCO respectively). OEE’s current renewal Under the applicable standard set TRADING LLC, P.O. Box 8709, Dubai, request provides further evidence that forth in Section 766.24 of the United Arab Emirates; and ALI Mahan Airways and Zarand Aviation Regulations and my review of the record ESLAMIAN, 4th Floor, 33 Cavendish continue their efforts to circumvent the here, I find that the evidence presented Square, London W1G0PW, United TDO and the Regulations. After the by BIS convincingly demonstrates that Kingdom, and 2 Bentinck Close, Prince August 24, 2011 renewal, Mahan Mahan Airways has continually violated Albert Road, St. Johns Wood, London Airways and Zarand Aviation worked in the EAR and the TDO, that such NW87RY, United Kingdom and when concert, along with Kerman Aviation, to knowing violations have been acting for or on their behalf, any de-register the two Airbus A310 aircraft significant, deliberate and covert, and successors or assigns, agents, or in France and subsequently register both that there is a likelihood of future employees (each a ‘‘Denied Person’’ and aircraft in Iran (with, respectively, violations. Additionally, since the collectively the ‘‘Denied Persons’’) may Iranian tail numbers EP–MHH and EP– August 24, 2011 renewal Order, Zarand not, directly or indirectly, participate in MHI). Both aircraft are active in Mahan Aviation’s Airbus A310 continues to be any way in any transaction involving Airways’ fleet on flights in and out of operated on routes into and out of Iran any commodity, software or technology Iran. These actions, taken after Zarand’s in violation of the Regulations and the (hereinafter collectively referred to as addition to the TDO, have made it more TDO itself, and Zarand Aviation has ‘‘item’’) exported or to be exported from likely that the aircraft will continue to acted in concert with Mahan Airways in the United States that is subject to the operate in a manner contrary to U.S. an effort to evade the TDO and U.S. Export Administration Regulations export control laws. Therefore, renewal export control laws. (‘‘EAR’’), or in any other activity subject of the TDO is necessary to prevent OEE’s renewal request includes other to the EAR including, but not limited to: imminent violation of the EAR and to evidence of continued or additional A. Applying for, obtaining, or using give notice to companies and violations. As referenced supra, Ali any license, License Exception, or individuals in the United States and Eslamian was added as a related person export control document; on August 24, 2011, in order to help abroad that they should continue to cease dealing with Mahan Airways, B. Carrying on negotiations prevent evasion of the TDO by Mahan concerning, or ordering, buying, Airways or other denied persons. Zarand Aviation, and the other denied persons under the TDO in export receiving, using, selling, delivering, Additionally, Eslamian has admitted to storing, disposing of, forwarding, OEE that he formed Skyco (U.K.) Ltd., transactions involving items subject to the EAR. The conduct of Mahan transporting, financing, or otherwise a company that buys and sells aircraft, servicing in any way, any transaction aircraft engines and other aviation Airways, Zarand Aviation, and those related to them or acting in concert with involving any item exported or to be related services, with Mahan Airways’ exported from the United States that is managing director and its vice president them, such as Kerman Aviation and Ali Eslamian, raise significant ongoing subject to the EAR, or in any other for business development. BIS has also activity subject to the EAR; or obtained evidence that Eslamian has concerns relating to the acquisition and use of aircraft, aircraft engines or other C. Benefiting in any way from any negotiated, including through his transaction involving any item exported company Equipco, with a Brazilian parts, and aircraft services in violation of the Regulations and the TDO. or to be exported from the United States airline for the purchase of two Airbus that is subject to the EAR, or in any A–320 aircraft and one aircraft engine, IV. Order other activity subject to the EAR. all items that are subject to the It Is Therefore Ordered: Second, that no person may, directly Regulations and require U.S. First, that MAHAN AIRWAYS, Mahan or indirectly, do any of the following: Government authorization for reexport Tower, No. 21, Azadegan St., M.A. A. Export or reexport to or on behalf to Iran.8 Eslamian signed a letter of Jenah Exp. Way, Tehran, Iran; ZARAND of a Denied Person any item subject to intent with the Brazilian airline on AVIATION A/K/A GIE ZARAND the EAR; November 20, 2009, and subsequently AVIATION, 42 Avenue Montaigne, B. Take any action that facilitates the signed a sales and purchase agreement 75008 Paris, France, and 112 Avenue acquisition or attempted acquisition by Kleber, 75116 Paris, France; GATEWICK a Denied Person of the ownership, 7 Kerman Aviation’s corporate registration also lists Mahan Aviation Services Company as an LLC, A/K/A GATEWICK FREIGHT & possession, or control of any item additional member of its Economic Interest Group. CARGO SERVICES, A/K/A GATEWICK subject to the EAR that has been or will 8 The Airbus A320s are powered with U.S.-origin AVIATION SERVICE, G#22 Dubai be exported from the United States, engines. The engines are subject to the EAR and Airport Free Zone, P.O. Box 393754, including financing or other support classified under ECCN 9A991.d. The Airbus A320s activities related to a transaction contain controlled U.S.-origin items valued at more Dubai, United Arab Emirates, and P.O. than 10 percent of the total value of the aircraft and Box 52404, Dubai, United Arab whereby a Denied Person acquires or as a result are subject to the EAR. They are Emirates, and Mohamed Abdulla Alqaz attempts to acquire such ownership, classified as ECCN 9A991.b. The reexport of these Building, Al Maktoum Street, Al Rigga, possession or control; aircraft to Iran would require U.S. Government authorization pursuant to Section 746.7 of the Dubai, United Arab Emirates; PEJMAN C. Take any action to acquire from or Regulations, as would the reexport of the aircraft MAHMOOD KOSARAYANIFARD to facilitate the acquisition or attempted engine. A/K/A KOSARIAN FARD, P.O. Box acquisition from a Denied Person of any

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item subject to the EAR that has been Dated: February 15, 2012. (‘‘Hilong’’) 3 to determine whether pipe 4 exported from the United States; David W. Mills, and tool joints produced in the PRC, D. Obtain from a Denied Person in the Assistant Secretary of Commerce for Export and friction welded together in the United States any item subject to the Enforcement. UAE, which are allegedly products of EAR with knowledge or reason to know [FR Doc. 2012–4207 Filed 2–22–12; 8:45 am] the PRC exported from the UAE, are that the item will be, or is intended to circumventing the Drill Pipe Orders.5 be, exported from the United States; or BILLING CODE P On August 12, 2011, the Department E. Engage in any transaction to service initiated an anti-circumvention inquiry any item subject to the EAR that has DEPARTMENT OF COMMERCE to determine whether certain imports of been or will be exported from the drill pipe from the PRC are United States and which is owned, International Trade Administration circumventing the Drill Pipe Orders. possessed or controlled by a Denied Between August 18, 2011, and October Person, or service any item, of whatever 28, 2011, the Department issued origin, that is owned, possessed or [A–570–965; C–570–966] questionnaires to Hilong, to which controlled by a Denied Person if such Hilong responded. service involves the use of any item Drill Pipe From the People’s Republic subject to the EAR that has been or will of China: Termination of Anti- Scope of the Orders be exported from the United States. For Circumvention Inquiry The products covered by the orders purposes of this paragraph, servicing are steel drill pipe, and steel drill means installation, maintenance, repair, AGENCY: Import Administration, collars, whether or not conforming to modification or testing. International Trade Administration, American Petroleum Institute (‘‘API’’) or Third, that, after notice and Department of Commerce. non-API specifications. Included are opportunity for comment as provided in SUMMARY: On August 12, 2011, in finished drill pipe and drill collars section 766.23 of the EAR, any other response to a request from VAM Drilling without regard to the specific chemistry person, firm, corporation, or business U.S.A., Texas Steel Conversion Inc. and of the steel (i.e., carbon, stainless steel, organization related to a Denied Person Rotary Drilling Tools (collectively the or other alloy steel), and without regard by affiliation, ownership, control, or ‘‘Petitioners’’), the Department of to length or outer diameter. Also position of responsibility in the conduct Commerce (the ‘‘Department’’) initiated included are unfinished drill collars of trade or related services may also be (including all drill collar green tubes) an anti-circumvention inquiry 1 to made subject to the provisions of this and unfinished drill pipe (including determine whether certain imports of Order. drill pipe green tubes, which are tubes Fourth, that this Order does not drill pipe from the People’s Republic of meeting the following description: prohibit any export, reexport, or other China (‘‘PRC’’) are circumventing the Seamless tubes with an outer diameter 2 transaction subject to the EAR where the Drill Pipe Orders. Because the of less than or equal to 65⁄8 inches only items involved that are subject to Petitioners have withdrawn this request, (168.28 millimeters), containing the EAR are the foreign-produced direct the Department is terminating this anti- between 0.16 and 0.75 percent product of U.S.-origin technology. circumvention inquiry. molybdenum, and containing between In accordance with the provisions of DATES: Effective Date: February 23, 0.75 and 1.45 percent chromium). The Sections 766.24(e) and 766.23(c)(2) of 2012. scope does not include tool joints not the EAR, Mahan Airways, Zarand attached to the drill pipe, nor does it Aviation, Gatewick LLC, Mahmoud FOR FURTHER INFORMATION CONTACT: Paul include unfinished tubes for casing or Amini, Kosarian Fard, Kerman Aviation, Walker, AD/CVD Operations, Office 9, tubing covered by any other Sirjanco Trading LLC and/or Ali Import Administration, International antidumping or countervailing duty Eslamian may, at any time, appeal this Trade Administration, U.S. Department order. Order by filing a full written statement of Commerce, 14th Street and The subject products are currently classified in the following Harmonized in support of the appeal with the Office Constitution Avenue NW., Washington, of the Administrative Law Judge, U.S. Tariff Schedule of the United States DC 20230; telephone 202.482.0413. Coast Guard ALJ Docketing Center, 40 (‘‘HTSUS’’) categories: 7304.22.0030, South Gay Street, Baltimore, Maryland SUPPLEMENTARY INFORMATION: 7304.22.0045, 7304.22.0060, 21202–4022. 7304.23.3000, 7304.23.6030, In accordance with the provisions of Background 7304.23.6045, 7304.23.6060, Section 766.24(d) of the EAR, BIS may On June 14, 2011, pursuant to section 8431.43.8040 and may also enter under 8431.43.8060, 8431.43.4000, seek renewal of this Order by filing a 781(b) of the Tariff Act of 1930, as written request not later than 20 days 7304.39.0028, 7304.39.0032, amended (the ‘‘Act’’), and section before the expiration date. A renewal 7304.39.0036, 7304.39.0040, 351.225(h) of the Department’s request may be opposed by Mahan regulations, the Petitioners submitted a Airways and/or Zarand Aviation as 3 This includes Hilong’s U.S. affiliate, Hilong provided in Section 766.24(d), by filing request for the Department to initiate an USA LLC (‘‘Hilong USA’’) and its joint venture anti-circumvention inquiry of the affiliate Almansoori/Hilong Petroleum Pipe a written submission with the Assistant Company (‘‘Almansoori/Hilong’’) located in the Secretary of Commerce for Export Hilong Group of Companies Co., Ltd. United Arab Emirates (the ‘‘UAE’’). Enforcement, which must be received 4 ‘‘Pipe’’ is heat treated and upset green tube, not later than seven days before the 1 See Drill Pipe from the People’s Republic of minus the tool joint. See the Petitioners’ request at China: Initiation of Anti-circumvention Inquiry, 76 3. expiration date of the Order. 5 Specifically, the Petitioners asserted that A copy of this Order shall be provided FR 50173 (August 12, 2011). 2 See Drill Pipe from the People’s Republic of Hilong’s PRC drill pipe facility exports PRC- to Mahan Airways, Zarand Aviation and produced pipe and tool joints to Almansoori/Hilong China: Antidumping Duty Order, 76 FR 11757 in the UAE, which friction welds the pipe to the each related person and shall be (March 3, 2011); Drill Pipe from the People’s published in the Federal Register. This tools joints, and then exports them to Hilong USA, Republic of China: Countervailing Duty Order, 76 which enters and sells the drill pipe as UAE-origin Order is effective immediately and shall FR 11758 (March 3, 2011) (collectively the ‘‘Drill merchandise, which is of the same class or kind as remain in effect for 180 days. Pipe Orders’’). the merchandise covered by the Drill Pipe Orders.

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7304.39.0044, 7304.39.0048, ADDRESSES: Nominations should be sent shall make available to the Board such 7304.39.0052, 7304.39.0056, to Ms. Elizabeth Ban, Designated information, personnel, and 7304.49.0015, 7304.49.0060, Federal Officer, National Sea Grant administrative services and assistance 7304.59.8020, 7304.59.8025, College Program, National Oceanic and as it may reasonably require to carry out 7304.59.8030, 7304.59.8035, Atmospheric Administration, 1315 East- its duties under this title. The Secretary 7304.59.8040, 7304.59.8045, West Highway, Room 11843, Silver shall make available to the Board such 7304.59.8050 and 7304.59.8055. Spring, Maryland 20910, (301) 734– information, personnel, and While HTSUS subheadings are 1082. administrative services and assistance provided for convenience and customs The March meeting will be held at as it may reasonably require to carry out purposes, the written description of the The Melrose Hotel, 2430 Pennsylvania its duties. scope of the orders is dispositive. Avenue NW., Washington, DC 20037. Status: The meeting will be open to The Board shall consist of 15 voting Termination of the Anti-Circumvention public participation with a 15-minute members who shall be appointed by the Inquiry public comment period on March 5 at Secretary. The Director and a director of On January 19, 2012, Petitioners 4:30 p.m. EST (check Web site to a sea grant program who is elected by withdrew their request for an anti- confirm time.) The Board expects that the various directors of sea grant circumvention proceeding.6 public statements presented at its programs shall serve as nonvoting Accordingly, we are terminating this meetings will not be repetitive of members of the Board. Not less than 8 anti-circumvention inquiry. previously submitted verbal or written of the voting members of the Board shall This notice is published in statements. In general, each individual be individuals who, by reason of accordance with section 777(i)(1) of the or group making a verbal presentation knowledge, experience, or training, are Act. will be limited to a total time of three especially qualified in one or more of (3) minutes. Written comments should Dated: February 13, 2012. the disciplines and fields included in be received by the Designated Federal marine science. The other voting Paul Piquado, Officer by February 27, 2012 to provide Assistant Secretary for Import members shall be individuals who, by sufficient time for Board review. Written reason of knowledge, experience, or Administration. comments received after February 27, [FR Doc. 2012–4238 Filed 2–22–12; 8:45 am] training, are especially qualified in, or 2012, will be distributed to the Board, representative of, education, marine BILLING CODE 3510––P but may not be reviewed prior to the affairs and resource management, meeting date. Seats will be available on coastal management, extension services, a first-come, first-serve basis. DEPARTMENT OF COMMERCE State government, industry, economics, FOR FURTHER INFORMATION CONTACT: Ms. planning, or any other activity which is Elizabeth Ban, Designated Federal National Oceanic and Atmospheric appropriate to, and important for, any Officer, National Sea Grant College Administration effort to enhance the understanding, Program, National Oceanic and assessment, development, management, National Sea Grant Advisory Board Atmospheric Administration, 1315 East- West Highway, Room 11843, Silver utilization, or conservation of ocean, AGENCY: National Oceanic and Spring, Maryland 20910, (301) 734– coastal, and Great Lakes resources. No Atmospheric Administration, 1082. individual is eligible to be a voting Commerce. member of the Board if the individual SUPPLEMENTARY INFORMATION: ACTION: Notice of solicitation for is (A) the director of a sea grant college Established by Section 209 of the Act or sea grant institute; (B) an applicant nominations for potential National Sea and as amended the National Sea Grant for, or beneficiary (as determined by the Grant Advisory Board members and College Program Amendments Act of Secretary) of, any grant or contract notice of public meeting. 2008 (Public Law 110–394), the duties of the Board are as follows: under section 205 [33 USCS § 1124]; or SUMMARY: This notice responds to (1) In general. The Board shall advise (C) a full-time officer or employee of the Section 209 of the Sea Grant Program the Secretary and the Director United States. Improvement Act of 1976 (Public Law concerning: The Director of the National Sea Grant 94–461, 33 U.S.C. 1128), which requires (A) Strategies for utilizing the sea the Secretary of Commerce to solicit College Program and one Director of a grant college program to address the nominations at least once a year for Sea Grant Program also serve as non- Nation’s highest priorities regarding the membership on the National Sea Grant voting members. Board members are understanding, assessment, Advisory Board, a Federal Advisory appointed for a 4-year term. development, management, utilization, Committee that provides advice on the The agenda for the meeting can be and conservation of ocean, coastal, and implementation of the National Sea found at: http://www.seagrant.noaa.gov/ Great Lakes resources. _ Grant College Program. This notice also (B) The designation of sea grant leadership/advisory board.html. sets forth the schedule and proposed colleges and sea grant institutes. Special Accommodations: These agenda of a forthcoming meeting of the (C) Such other matters as the meetings are physically accessible to National Sea Grant Advisory Board. Secretary refers to the Board for review people with disabilities. Requests for DATES: Solicitation of nominations is and advice. sign language interpretation or other open ended. Resumes may be sent to the (2) Biennial Report. The Board shall auxiliary aids should be directed to address specified at any time. The report to the Congress every two years Elizabeth Ban, Designated Federal announced meeting is scheduled for on the state of the national sea grant Officer at 301–734–1082 by February 22, Monday, March 5, 2012 from 8:00 a.m. college program. The Board shall 2012. to 5:00 p.m. EST and Tuesday, March 6, indicate in each such report the progress 2012, from 8:30 a.m. to 3:00 p.m. EST. made toward meeting the priorities identified in the strategic plan in effect 6 See Petitioners’ letter dated January 18, 2012. under section 204 (c). The Secretary

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Dated: February 17, 2012. Rabalais, NSGAB and L. Cammen, NMFS PIR, tel 808–944–2275, fax 808– Mark E. Brown, NSGO) 973–2940, or email PIRO- Chief Financial Officer/Chief Administrative 9:30 NOAA Research Portfolio (N. [email protected]. Officer, Office of Oceanic and Atmospheric Rabalais, NSGAB) SUPPLEMENTARY INFORMATION: NMFS Research, National Oceanic and Atmospheric 10:00 Break—15 minutes may issue new permits for the American Administration. 10:15 Performance Review Panel (PRP) Samoa pelagic longline limited entry National Sea Grant Advisory Board (Sami Grimes, NSGO) program if the number of permits in a (NSGAB) Spring Meeting 10:45 Strategic Plan update (D. vessel size class falls below the Vortmann, NSGAB, Kola Garber, maximum allowed. Six permits are March 5–6, 2012 NSGO) available, as follows: Agenda 11:00 Dr. Robert Detrick, Assistant • Four in Class A (vessels less than or Administrator for NOAA Research The Melrose Hotel, Potomac II, 2430 equal to 40 ft in overall length); and and Craig McLean, Deputy • Two in Class D (over 70 ft in overall Pennsylvania Avenue NW., Washington, Assistant Administrator for NOAA DC 20037. length). Research (Joint Session with SGA in The number of available permits may Monday, March 5 Potomac III) increase before the application period 12:00 Lunch 8:00 a.m.–5:00 p.m.—Open to Public closes. 1:00 Stuart Levenbach, Office of NMFS will assign the highest priority 8:00 Introductions, review agenda, Management and Budget, NOAA to the applicant (for any vessel size approval of minutes, etc. (Nancy Program Examiner (Joint Session class) with the earliest documented Rabalais, Chair, NSGAB) with SGA in Potomac III) participation in the fishery on a Class A 8:15 Chair’s update (N. Rabalais, 2:00 Virginia Tippie, Coastal America vessel. Applicants with earliest NSGAB) (Joint Session with SGA in Potomac documented participation in Classes B, 8:30 NSGO report (Leon Cammen, III) C, and D, in that order, will get lower National Sea Grant Office—NSGO) 2:30 Sea Grant and the Draft priority. If there is a tie in priority, the 9:15 SGA report (Jonathan Pennock, Implementation Action Plan of the person with the documented earliest President, Sea Grant Association) National Ocean Policy follow-up following participation will receive 9:45 Break—15 minutes (N. Rabalais, NSGAB) 10:00 Sea Grant Reauthorization higher priority. 2:45 Discussion of meeting topics and NMFS (see ADDRESSES) will not Planning (Rollie Schmitten, next steps accept applications received after June NSGAB) 3:00 Adjourn 10:45 Sea Grant Charter Renewal (N. 22, 2012. You must provide a completed [FR Doc. 2012–4219 Filed 2–22–12; 8:45 am] Rabalais, NSGAB) and signed application form, legible 11:15 Discussion of morning topics BILLING CODE 3510–KA–P copies of documents supporting and review of Board Assignments historical participation in the American 12:00 Lunch Samoa pelagic longline fishery, and 1:00 Biennial Report Discussion (Dick DEPARTMENT OF COMMERCE payment (non-refundable) for the application-processing fee. West, NSGAB) National Oceanic and Atmospheric 2:30 Break—15 minutes You may find the regulations Administration 2:45 SAB Meeting notes (D. West, governing the American Samoa pelagic NSGAB) RIN 0648—XB009 longline limited entry program at Title 3:00 Focus Team liaison reports 50 of the Code of Federal Regulations, —Hazard Resilience in Coastal Western Pacific Pelagic Fisheries; Part 665. American Samoa Longline Limited Communities (Mike Liffman, Authority: 16 U.S.C. 1801 et seq. NSGO) Entry Program —Healthy Coastal Ecosystems (Dorn Dated: February 17, 2012. Carlson, NSGO) AGENCY: National Marine Fisheries Carrie Selberg, —Safe and Sustainable Seafood Service (NMFS), National Oceanic and Acting Director, Office of Sustainable Supply (Amy Scaroni, NSGO) Atmospheric Administration (NOAA), Fisheries, National Marine Fisheries Service. —Sustainable Coastal Development Commerce. [FR Doc. 2012–4251 Filed 2–22–12; 8:45 am] (Joshua Brown, NSGAB) ACTION: Notice; availability of permits. BILLING CODE 3510–22–P 3:30 Sea Grant Week update (Harry Simmons, NSGAB) SUMMARY: NMFS announces the 4:00 Discussion of afternoon topics availability of at least six permits for the DEPARTMENT OF COMMERCE 4:30 Public Comment Period (15 American Samoa pelagic longline minutes) fishery. National Oceanic and Atmospheric 4:45 Wrap-up (N. Rabalais, NSGAB) DATES: NMFS must receive completed Administration 5:00 Adjourn permit applications by June 22, 2012. RIN 0648–XB027 6:00 Sea Grant Knauss Fellowship ADDRESSES: Request a blank application Reception Rayburn House Office form from NMFS Pacific Islands Region Endangered Species; File No. 16253 Building Rooms B338/B339 (PIR), 1601 Kapiolani Blvd. Suite 1110, AGENCY: National Marine Fisheries Tuesday, March 6 Honolulu, HI 96814–4733, or the PIR Service (NMFS), National Oceanic and Web site www.fpir.noaa.gov. Mail your Atmospheric Administration (NOAA), 8:30 a.m.–3:00 p.m.—Open to Public completed application and payment to Commerce. NMFS PIR, ATTN: ASLE Permits, 1601 8:30 Call to Order, review agenda and ACTION: Issuance of permit. previous day’s discussions (N. Kapiolani Blvd. Suite 1110, Honolulu, Rabalais, NSGAB) HI 96814–4733. SUMMARY: Notice is hereby given that 8:45 NOAA, Department of Commerce FOR FURTHER INFORMATION CONTACT: the NMFS Southeast Fisheries Science and Department of the Interior (N. Walter Ikehara, Sustainable Fisheries, Center (SEFSC; Responsible Party:

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Bonnie Ponwith, Ph.D.), has been issued disadvantage of such endangered or Frequency: On occasion. a permit to take green (Chelonia mydas), threatened species, and (3) is consistent Respondent’s Obligation: Voluntary. Kemp’s ridley (Lepidochelys kempii), with the purposes and policies set forth OMB Desk Officer: Nicholas A. Fraser, hawksbill (Eretmochelys imbricata), in section 2 of the ESA. email: _ _ leatherback (Dermochelys coriacea), Dated: February 17, 2012. Nicholas A. [email protected]. olive ridley (L. olivacea), and P. Michael Payne, Once submitted, the request will be loggerhead (Caretta caretta) sea turtles publicly available in electronic format Chief, Permits and Conservation Division, for scientific research. Office of Protected Resources, National through the Information Collection ADDRESSES: The permit and related Marine Fisheries Service. Review page at www.reginfo.gov. documents are available for review [FR Doc. 2012–4250 Filed 2–22–12; 8:45 am] Paper copies can be obtained by: • Email: upon written request or by appointment BILLING CODE 3510–22–P in the following offices: [email protected]. Permits and Conservation Division, Include ‘‘0651–0060 copy request’’ in Office of Protected Resources, NMFS, DEPARTMENT OF COMMERCE the subject line of the message. 1315 East-West Highway, Room 13705, • Mail: Susan K. Fawcett, Records Silver Spring, MD 20910; phone (301) United States Patent and Trademark Officer, Office of the Chief Information 427–8401; fax (301) 713–0376; Office Officer, United States Patent and Northeast Region, NMFS, 55 Great Trademark Office, P.O. Box 1450, Republic Drive, Gloucester, MA 01930; Submission for OMB Review; Alexandria, VA 22313–1450. phone (978) 281–9328; fax (978) 281– Comment Request Written comments and 9394; and Southeast Region, NMFS, 263 recommendations for the proposed The United States Patent and 13th Ave South, St. Petersburg, FL information collection should be sent on Trademark Office (USPTO) will submit 33701; phone (727) 824–5312; fax (727) or before March 26, 2012 to Nicholas A. to the Office of Management and Budget 824–5309. Fraser, OMB Desk Officer, via email to (OMB) for clearance the following [email protected], or by FOR FURTHER INFORMATION CONTACT: proposal for collection of information fax to 202–395–5167, marked to the Amy Hapeman or Kristy Beard, (301) under the provisions of the Paperwork attention of Nicholas A. Fraser. 427–8401. Reduction Act (44 U.S.C. 35). SUPPLEMENTARY INFORMATION: On June Agency: United States Patent and Dated: February 16, 2012. 27, 2011, notice was published in the Trademark Office (USPTO). Susan K. Fawcett, Federal Register (76 FR 37327) that a Title: National Medal of Technology Records Officer, USPTO, Office of the Chief request for a scientific research permit and Innovation Nomination Information Officer. to take loggerhead, green, Kemp’s ridley, Application. [FR Doc. 2012–4116 Filed 2–22–12; 8:45 am] olive ridley, leatherback, and hawksbill Form Number(s): None. BILLING CODE 3510–16–P sea turtles had been submitted by the Agency Approval Number: 0651– above-named organization. The 0060. requested permit has been issued under Type of Request: Extension of a the authority of the Endangered Species currently approved collection. BUREAU OF CONSUMER FINANCIAL Act of 1973, as amended (ESA; 16 Burden: 1,600 hours annually. PROTECTION U.S.C. 1531 et seq.) and the regulations Number of Respondents: 40 responses governing the taking, importing, and per year. Establishment of the Consumer exporting of endangered and threatened Avg. Hours per Response: The USPTO Advisory Board and Solicitation of species (50 CFR parts 222–226). estimates that it will take the public Nominations for Membership The SEFSC is authorized to conduct approximately 40 hours to download AGENCY: Bureau of Consumer Financial research on leatherback, loggerhead, the information from the USPTO Web Protection. green, hawksbill, olive ridley, and site, prepare the nomination form, Kemp’s ridley sea turtles in the Atlantic complete the contact information for the ACTION: Notice. Ocean, Gulf of Mexico, Caribbean Sea letters of recommendation or support, SUMMARY: The Bureau of Consumer and their estuarine and coastal and submit the information to the Financial Protection (the ‘‘Bureau’’) environments. The purpose of the USPTO via electronic mail or, announces the establishment of the research is to evaluate modifications to alternatively, by fax or overnight Consumer Advisory Board (the commercial fishing gear to mitigate sea delivery. ‘‘Board’’), which will advise and consult turtle interactions and capture. The Needs and Uses: The public uses the with the Bureau in the exercise of the permit authorizes animals to be National Medal of Technology and Bureau’s functions under the Federal captured during trawl surveys and to Innovation Nomination Application to consumer financial protection laws, and handle and sample turtles captured recognize through nomination an which will provide information to the within fisheries managed by another individual’s or company’s extraordinary Bureau concerning emerging trends and Federal authority. All animals would be leadership and innovation in practices in the financial services and handled, measured, weighed, technological achievement. The products industry. This Notice seeks photographed, flipper tagged, passive application must be accompanied by six nominations for members to serve on integrated transponder tagged, and skin letters of recommendation or support the Board. biopsied prior to release. A limited from individuals who have first-hand DATES: number of mortalities may occur due to knowledge of the cited achievement(s). Nominations received on or trawling. The permit is valid for five The USPTO uses the information to before March 30, 2012 will be given years. assist in the administration of the consideration for membership on the Issuance of this permit, as required by nomination process. Board. the ESA, was based on a finding that Affected Public: Individuals or ADDRESSES: All nominations for such permit (1) was applied for in good households, businesses or other for- membership on the Board should be faith, (2) will not operate to the profits. sent:

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• Electronically: CABnominations@ II. Establishment and Functions of the serve at the pleasure of the Director cfpb.gov. We strongly encourage Consumer Advisory Board from the date of appointment to the electronic submissions. The Board will be established when Board, not to exceed two terms. The • Mail: Monica Jackson/CAB the Bureau approves a charter. The Director will designate the Board Chair Nominations, Consumer Financial charter will be filed with the Director of and Vice Chair. The Chair and Vice Protection Bureau, 1500 Pennsylvania the Bureau, furnished to the Library of Chair will serve in those positions at the Avenue NW., (Attn: 1801 L Street), Congress, and posted on the Bureau’s pleasure of the Director. In accord with Section 1014(d) of the Washington, DC 20220. Web site at www.consumerfinance.gov. Dodd-Frank Act, members of the Board • The Bureau will send a copy of the Hand Delivery/Courier in Lieu of who are not full-time employees of the charter to the Committee on Banking, Mail: Monica Jackson/CAB United States will receive compensation Housing, and Urban Affairs of the Nominations, Consumer Financial at a rate fixed by the Director while United States Senate and the Committee Protection Bureau, 1801 L Street NW., attending meetings of the Board, Washington, DC 20036. on Financial Services of the United including reasonable travel and States House of Representatives. subsistence expenses while away from FOR FURTHER INFORMATION CONTACT: As set forth in Section 1014(a) of the their homes or regular places of Requests for additional information Dodd-Frank Act, the Board’s objectives business. Wherever practical in terms of should be directed to Kimberly Miller, are to ‘‘advise and consult with the cost and logistics, the Bureau may hold Consumer Financial Protection Bureau, Bureau in the Bureau’s exercise of its (202) 435–7451. meetings outside of the Washington, DC functions under the Federal consumer metropolitan area. SUPPLEMENTARY INFORMATION: financial protection laws,’’ and to ‘‘provide information on emerging III. Qualifications I. Background practices in the consumer financial Pursuant to Section 1014(b) of the The Bureau is charged with regulating products and services industry, Dodd-Frank Act, in appointing members ‘‘the offering and provision of consumer including regional trends, concerns, and to the Board, ‘‘the Director shall seek to financial products or services under the other relevant information.’’ The assemble experts in consumer Federal consumer financial laws,’’ so as Board’s charter will provide that the protection, financial services, to ensure that ‘‘all consumers have function of the Board is to be solely community development, fair lending access to markets for consumer financial advisory. The Bureau alone will decide and civil rights, and consumer financial products and services and that markets what action it will take and policy it products or services and representatives for consumer financial products and will express with respect to the Federal of depository institutions that primarily services are fair, transparent, and consumer financial laws. serve underserved communities, and competitive.’’ Pursuant to Section The Board will meet at such intervals representatives of communities that 1021(c) of the Wall Street Reform and as are necessary to carry out its have been significantly impacted by Consumer Protection Act, Public Law functions, but not less than twice per higher-priced mortgage loans, and seek 111–203 (the ‘‘Dodd-Frank Act’’), the year. Meetings of subgroups or representation of the interests of Bureau’s primary functions are: subcommittees of the full Board covered persons and consumers, established according to the terms of the 1. Conducting financial education without regard to party affiliation.’’ The charter may occur more frequently. programs; determinants of ‘‘expertise’’ shall The Director will make appointments depend, in part, on the constituency, 2. Collecting, investigating, and to the Board without regard to political interests, or industry sector the nominee responding to consumer complaints; affiliation. To achieve the Board’s goals, seeks to represent, and where 3. Collecting, researching, monitoring, not fewer than sixteen members will be appropriate, shall include significant and publishing information relevant to appointed who can represent effectively experience as a direct service provider the function of markets for consumer the varied interests affected by the range to consumers. financial products and services to of issues to be considered. The Board’s The Bureau wishes to ensure adequate identify risks to consumers and the membership will be balanced in terms representation on the Board by women, proper functioning of such markets; of points of view represented and the minority groups, and individuals with 4. Supervising persons covered under functions to be performed. Section disabilities and, therefore, encourages the Dodd-Frank Act for compliance with 1014(b) of the Dodd-Frank Act provides nominations of qualified candidates Federal consumer financial law, and that ‘‘[n]ot fewer than 6 members shall from these groups. The Bureau also taking appropriate enforcement action be appointed upon the recommendation wishes to establish a Board that is to address violations of Federal of the regional Federal Reserve Bank represented by a diversity of viewpoints consumer financial law; Presidents, on a rotating basis.’’ and constituencies and, therefore, Of the members appointed by the 5. Issuing rules, orders, and guidance encourages nominations for qualified Director, candidates who: implementing Federal consumer 1. One-third shall be appointed to an financial law; and 1. Represent the United States’ initial one-year term; geographic diversity; and 6. Performing such support activities 2. One-third shall be appointed to an 2. Represent the interests of special as may be needed or useful to facilitate initial two-year term; and populations identified in the Dodd- the other functions of the Bureau. 3. One-third shall be appointed to an Frank Act, including service members, Section 1014 of the Dodd-Frank Act initial three-year term. older Americans, students, and calls for the Director of the Bureau to The length of a member’s initial term traditionally underserved consumers establish a Consumer Advisory Board to will be determined by lottery. Each and communities. advise and consult with the Bureau member appointed may seek to renew The Bureau will not entertain regarding its functions, and to provide his or her appointment to the Board for nominations of Federally registered information on emerging trends and a single, second term of three years, lobbyists and individuals who have practices in the consumer financial pursuant to the procedures outlined in been convicted of a felony for a position markets. the Board’s charter. The members will on the Board.

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IV. Nomination Procedures that the Office of Management and Annual Performance Report (Part B— Any interested person or organization Budget (OMB) provide interested APR). Information Collection 1820–0624 may nominate a qualified candidate for Federal agencies and the public an early corresponds to 34 CFR 300.600– membership on the Board. Nominations opportunity to comment on information 300.602. must include: collection requests. The OMB is Copies of the information collection 1. A letter describing the nominee’s particularly interested in comments submission for OMB review may be interests and qualifications to serve on which: (1) Evaluate whether the accessed from the RegInfo.gov Web site the Board and including an indication proposed collection of information is at http://www.reginfo.gov/public/do/ that the nominee is willing to be necessary for the proper performance of PRAMain or from the Department’s Web considered for Board membership; and the functions of the agency, including site at http://edicsweb.ed.gov, by 2. A complete resume or curriculum whether the information will have selecting the ‘‘Browse Pending vitae for the nominee. practical utility; (2) Evaluate the Collections’’ link and by clicking on CFPB does not request letters of accuracy of the agency’s estimate of the link number 04736. When you access recommendation and will not consider burden of the proposed collection of the information collection, click on them. To evaluate potential sources of information, including the validity of ‘‘Download Attachments ’’ to view. conflicts of interest, the Bureau may ask the methodology and assumptions used; Written requests for information should potential candidates to provide (3) Enhance the quality, utility, and be addressed to U.S. Department of information related to financial holdings clarity of the information to be Education, 400 Maryland Avenue SW., and/or professional affiliations, and to collected; and (4) Minimize the burden LBJ, Washington, DC 20202–4537. allow the Bureau to perform a of the collection of information on those Requests may also be electronically background check. who are to respond, including through mailed to the Internet address The Bureau will not review the use of appropriate automated, [email protected] or faxed to 202– nominations and will not answer electronic, mechanical, or other 401–0920. Please specify the complete questions from internal or external technological collection techniques or title of the information collection and parties regarding nominations until the other forms of information technology. OMB Control Number when making nominations period has closed. Dated: February 17, 2012. your request. Individuals who use a Dated: February 17, 2012. Ellen Campbell, telecommunications device for the deaf Meredith Fuchs, Acting Deputy Director Privacy, Information (TDD) may call the Federal Information Chief of Staff, Consumer Financial Protection and Records Management Services Office of Relay Service (FIRS) at 1–800–877– Management. Bureau. 8339. [FR Doc. 2012–4240 Filed 2–22–12; 8:45 am] Office of Special Education and [FR Doc. 2012–4221 Filed 2–22–12; 8:45 am] BILLING CODE 4810–AM–P Rehabilitative Services BILLING CODE 4000–01–P Type of Review: Revision. DEPARTMENT OF EDUCATION Title of Collection: Individuals with Disabilities Education Act (IDEA) Part B DEPARTMENT OF EDUCATION Notice of Submission for OMB Review State Performance Plan (SPP) and Applications for New Awards; Annual Performance Report (APR). AGENCY: Department of Education. Fulbright-Hays Group Projects Abroad OMB Control Number: 1820–0624. Program—Short-Term Projects and ACTION: Comment request. Agency Form Number(s): N/A. Advanced Overseas Intensive Frequency of Responses: Annually. Language Training Projects SUMMARY: The Acting Deputy Director, Affected Public: Federal Government. Privacy, Information and Records Total Estimated Number of Annual AGENCY: Office of Postsecondary Management Services, Office of Responses: 60. Education, Department of Education. Management, invites comments on the Total Estimated Annual Burden ACTION: Notice. submission for OMB review as required Hours: 330,600. by the Paperwork Reduction Act of 1995 Abstract: In accordance with 20 Overview Information: Fulbright-Hays (Pub. L. 104–13). U.S.C. 1416(b)(1), not later than one Group Projects Abroad Program—Short- DATES: Interested persons are invited to year after the date of enactment of the Term Projects and Advanced Overseas submit comments on or before March Individuals with Disabilities Education Intensive Language Training Projects; 26, 2012. Act, as revised in 2004, each State must Notice inviting applications for new ADDRESSES: Written comments should have in place a performance plan that awards for fiscal year (FY) 2012. be addressed to the Office of evaluates the State’s efforts to Catalog of Federal Domestic Assistance Information and Regulatory Affairs, implement the requirements and (CFDA) Number: 84.021A and 84.021B. Attention: Education Desk Officer, purposes of Part B and describe how the Dates: Applications Available: Office of Management and Budget, 725 State will improve such February 23, 2012. Deadline for 17th Street N.W., Room 10222, New implementation. This plan is called the Transmittal of Applications: April 23, Executive Office Building, Washington, Part B State Performance Plan (Part B— 2012. DC 20503, be faxed to (202) 395–5806 or SPP). In accordance with 20 U.S.C. Full Text of Announcement emailed to 1416(b)(2)(C)(ii) the State shall report [email protected] with a annually to the public on the I. Funding Opportunity Description cc: to [email protected]. Please note performance of each local educational Purpose of Program: The Fulbright- that written comments received in agency located in the State on the Hays Group Projects Abroad (GPA) response to this notice will be targets in the State’s performance plan. Program supports overseas projects in considered public records. The State also shall report annually to training, research, and curriculum SUPPLEMENTARY INFORMATION: Section the Secretary on the performance of the development in modern foreign 3506 of the Paperwork Reduction Act of State under the State’s performance languages and area studies for groups of 1995 (44 U.S.C. Chapter 35) requires plan. This report is called the Part B teachers, students, and faculty engaged

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in a common endeavor. Short-term (applicable only to the long-term Specific geographic regions of the projects may include seminars, (84.021B) competition) are from the world: A group project funded under curriculum development, or group regulations for this program (34 CFR this priority must focus on one or more research or study. Long-term projects 664.32), and Competitive Preference of the following geographic regions of support advanced overseas intensive Priority II (applicable only to the short- the world: Africa, East Asia, South Asia, language projects, which give advanced term (84.021A) competition) is from the Southeast Asia and the Pacific, the language students the opportunity to notice of final priorities published in Western Hemisphere (Central and South study languages overseas. the Federal Register on September 24, America, Mexico, and the Caribbean), Priorities: This notice contains one 2010 (75 FR 59050). East Central Europe and Eurasia, and absolute priority, three competitive the Near East. preference priorities, and one Absolute Priority: For FY 2012 and Competitive Preference Priorities: invitational priority. In accordance with any subsequent year in which we make Within this absolute priority, we give 34 CFR 75.105(b)(2)(ii), the absolute awards from the list of unfunded competitive preference to applications priority is from the regulations for this applicants from this competition, this that address the following priorities. program (34 CFR 664.32). Competitive priority is an absolute priority. Under 34 The competitive preference priorities Preference Priorities I (applicable to CFR 75.105(c)(3), we consider only announced in this notice correspond to both the short-term (84.021A) and long- applications that meet this priority. the separate short-term and long-term term (84.021B) competitions) and III This priority is: competitions as follows:

Competition Competition CFDA No. Competitive preference priorities

GPA Short-Term Projects ...... 84.021A • Competitive Preference Priority I—Training and focus on priority languages. • Competitive Preference Priority II—Inclusion of K–12 educators. GPA Advanced Overseas Intensive Lan- 84.021B • Competitive Preference Priority I—Training and focus on priority languages. guage Training Projects. • Competitive Preference Priority III—U.S. participant travel to Brazil, China, India, or Russia.

Under 34 CFR 75.105(c)(2)(i), (Cantonese), Chinese (Gan), Chinese awards based on the list of unfunded depending on how well the application (Mandarin), Chinese (Min), Chinese applicants from this competition, this meets these priorities, we award up to (Wu), Croatian, Dari, Dinka, Georgian, priority is an invitational priority. an additional five points to an Gujarati, Hausa, Hebrew (Modern), Under 34 CFR 75.105(c)(1), we do not application that meets Competitive Hindi, Igbo, Indonesian, Japanese, give an application that meets this Preference Priority I, up to an additional Javanese, Kannada, Kashmiri, Kazakh, priority a competitive or absolute five points to an application that meets Khmer (Cambodian), Kirghiz, Korean, preference over other applications. Competitive Preference Priority II, and Kurdish (Kurmanji), Kurdish (Sorani), The invitational priority is: up to an additional five points to an Lao, Malay (Bahasa Melayu or Invitational Priority I: application that meets Competitive Malaysian), Malayalam, Marathi, Applications from any one of the Preference Priority III. The maximum Mongolian, Nepali, Oromo, Panjabi, following: amount of competitive preference Pashto, Persian (Farsi), Polish, priority points an application can Portuguese (all varieties), Quechua, (a) Minority-Serving Institutions receive under either the short-term or Romanian, Russian, Serbian, Sinhala (MSIs), including those that are eligible long-term competition is 10 points. (Sinhalese), Somali, Swahili, Tagalog, to receive assistance under Part A or B of Title III or under Title V of the Higher Note: In order to receive preference under Tajik, Tamil, Telugu, Thai, Tibetan, Tigrigna, Turkish, Turkmen, Ukrainian, Education Act of 1965, as amended these competitive preference priorities, the (HEA). applicant must identify the priority or Urdu, Uyghur/Uigur, Uzbek, priorities that it believes it meets and provide Vietnamese, Wolof, Xhosa, Yoruba, and (b) Community colleges, including documentation supporting its claims. Zulu. those that are eligible to receive assistance under Part A or B of Title III These priorities are: Competitive Preference Priority II— Competitive Preference Priority I— Inclusion of K–12 educators. (5 points) or under Title V of the HEA. Training and focus on priority Applications that propose short-term (c) Novice applicants (as defined in languages. (5 points) projects abroad that develop and this notice). Projects that provide substantive improve foreign language studies, area Definitions: This definition is from training and thematic focus on any of studies, or both at elementary and the Education Department General the 78 priority languages selected from secondary schools by including K–12 Administrative Regulations (EDGAR) 34 the U.S. Department of Education’s list teachers or K–12 administrators as at CFR 75.225. Novice applicant means of Less Commonly Taught Languages least 50 percent of the project any applicant for a grant from the (LCTLs) found below. participants. Department that: Has never received a This list includes the following: Akan Competitive Preference Priority III— grant or subgrant under the program (Twi-Fante), Albanian, Amharic, Arabic U.S. participant travel to Brazil, China, from which it seeks funding; has never (all dialects), Armenian, Azeri India or Russia (5 points): Applications been a member of a group application, (Azerbaijani), Balochi, Bamanakan that propose long-term projects abroad submitted in accordance with 34 CFR (Bamana, Bambara, Mandikan, that plan to send U.S. educators and 75.127–75.129, that received a grant Mandingo, Maninka, Dyula), Belarusian, other eligible participants to Brazil, under the program from which it seeks Bengali (Bangla), Berber (all languages), China, India, or Russia. funding; and has not had an active Bosnian, Bulgarian, Burmese, Cebuano Invitational Priority: For FY 2012 and discretionary grant from the Federal (Visayan), Chechen, Chinese any subsequent year in which we make Government in the five years before the

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deadline date for applications under the 2. Cost Sharing or Matching: This Roman and Arial Narrow) will not be program. program does not require cost sharing or accepted. Program Authority: 22 U.S.C. matching. • The 40-page limit does not apply to 2452(b)(6). Part I, the Application for Federal IV. Application and Submission Applicable Regulations: (a) EDGAR in Assistance face sheet (SF 424); the Information 34 CFR parts 74, 75, 77, 80, 81, 82, 84, supplemental information form required 85, 86, 97, 98, and 99. (b) The 1. Address to Request Application by the Department of Education; Part II, regulations for this program in 34 CFR Package: You can obtain an application the budget summary form (ED Form part 664. (c) The notice of final package via the Internet or from the 524); Part IV, assurances, certifications, priorities for this program, published in Education Publications Center (ED and the response to section 427 of the the Federal Register on September 24, Pubs). General Education Provisions Act 2010 (75 FR 59050). To obtain a copy via the Internet, use (GEPA); the table of contents; the one- Note: The regulations in 34 CFR part 86 the following address: http://grants.gov. page project abstract; the appendices; or apply to institutions of higher education To obtain a copy from ED Pubs, write, the line item budget. If you include any (IHEs) only. fax, or call the following: ED Pubs, U.S. attachments or appendices not Department of Education, P.O. Box specifically requested, these items will II. Award Information 22207, Alexandria, VA 22304. be counted as part of the program Telephone, toll free: 1–877–433–7827. Type of Award: Discretionary grants. narrative [Part III] for purposes of the Estimated Available Funds: FAX: (703) 605–6794. If you use a page limit requirement. $2,990,000. telecommunications device for the deaf We will reject your application if you (TDD) or a text telephone (TTY), call, exceed the page limit. Note: The Consolidated Appropriations toll free: 1–877–576–7734. Act, 2012 allows funds to be used in this 3. Submission Dates and Times: You can contact ED Pubs at its Web Applications Available: February 23, program to support the participation of site, also: www.EDPubs.gov or at its individuals who plan to apply their language 2012. skills and knowledge of countries vital to the email address: [email protected]. Deadline for Transmittal of If you request an application from ED United States’ national security in fields Applications: April 23, 2012. Pubs, be sure to identify the competition outside teaching, including government, the Applications for grants under this as follows: CFDA number 84.021A or professions, or international development program must be submitted (See The Consolidated Appropriations Act, 84.021B. 2012, Division F, Title III, Pub. L. 112–74). Individuals with disabilities can electronically using the Grants.gov Therefore, applicants may also propose obtain a copy of the application package Apply site (Grants.gov). For information projects for visits and study in foreign in an accessible format (e.g., , (including dates and times) about how countries by individuals in these fields. large print, audiotape, or compact disc) to submit your application Estimated Range of Awards: by contacting the contact person listed electronically, or in paper format by Short-term projects: $50,000– under For Further Information Contact mail or hand delivery if you qualify for $125,000. in section VII of this notice. an exception to the electronic Long-term projects: $50,000– 2. Content and Form of Application submission requirement, please refer to $375,000. Submission: Requirements concerning section IV.7. Other Submission Estimated Average Size of Awards: the content of an application, together Requirements of this notice. Short-term projects: $82,500. with the forms you must submit, are in We do not consider an application Long-term projects: $125,000. the application package for this that does not comply with the deadline Maximum Award: We will reject any program. requirements. short-term GPA application that Page Limit: The application narrative Individuals with disabilities who proposes a budget exceeding $125,000 is where you, the applicant, address the need an accommodation or auxiliary aid for a single budget period of 18 months. selection criteria that reviewers use to in connection with the application We will reject any advanced overseas evaluate your application. You must process should contact the person listed intensive language training long-term limit the application narrative (Part III) under For Further Information Contact application that proposes a budget to no more than 40 pages, using the in section VII of this notice. If the exceeding $375,000 for a single budget following standards: Department provides an accommodation period of 12 months. The Assistant • A ‘‘page’’ is 8.5″ 11″, on one side or auxiliary aid to an individual with a Secretary for Postsecondary Education only, with 1″ margins at the top, bottom, disability in connection with the may change the maximum award and both sides. application process, the individual’s through a notice published in the • Double space (no more than three application remains subject to all other Federal Register. lines per vertical inch) all text in the requirements and limitations in this Estimated Number of Awards: application narrative, except titles, notice. Short-term projects: 12. headings, footnotes, quotations, 4. Intergovernmental Review: This Long-term projects: 16. references, and captions. Charts, tables, program is not subject to Executive Note: The Department is not bound by any figures, and graphs in the application Order 12372 and the regulations in 34 estimates in this notice. narrative may be single spaced and will CFR part 79. Project Period: count toward the page limit. 5. Funding Restrictions: See 34 CFR Short-term projects: Up to 18 months. • Use a font that is either 12 point or 664.33. We reference additional Long-term projects: Up to 48 months. larger; or, no smaller than 10 pitch regulations outlining funding (characters per inch). However, you may restrictions in the Applicable III. Eligibility Information use a 10 point font in charts, tables, Regulations section of this notice. 1. Eligible Applicants: (1) Institutions figures, and graphs. 6. Data Universal Numbering System of higher education, (2) State • Use one of the following fonts: Number, Taxpayer Identification educational agencies (SEAs), (3) Private Times New Roman, Courier, Courier Number, and Central Contractor nonprofit educational organizations, New, or Arial. An application submitted Registry: To do business with the and (4) Consortia of these entities. in any other font (including Times Department of Education, you must—

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a. Have a Data Universal Numbering We will reject your application if you Education Submission Procedures System (DUNS) number and a Taxpayer submit it in paper format unless, as pertaining to Grants.gov under News Identification Number (TIN); described elsewhere in this section, you and Events on the Department’s G5 b. Register both your DUNS number qualify for one of the exceptions to the system home page at http://www.G5.gov. and TIN with the Central Contractor electronic submission requirement and • You will not receive additional Registry (CCR), the Government’s submit, no later than two weeks before point value because you submit your primary registrant database; the application deadline date, a written application in electronic format, nor c. Provide your DUNS number and statement to the Department that you will we penalize you if you qualify for TIN on your application; and qualify for one of these exceptions. an exception to the electronic d. Maintain an active CCR registration Further information regarding submission requirement, as described with current information while your calculation of the date that is two weeks elsewhere in this section, and submit application is under review by the before the application deadline date is your application in paper format. • Department and, if you are awarded a provided later in this section under You must submit all documents grant, during the project period. Exception to Electronic Submission electronically, including all information You can obtain a DUNS number from Requirement. you typically provide on the following Dun and Bradstreet. A DUNS number You may access the electronic grant forms: The Application for Federal can be created within one business day. application for the Fulbright-Hays GPA Assistance (SF 424), the Department of If you are a corporate entity, agency, Programs at http://Grants.gov. You must Education Supplemental Information for institution, or organization, you can search for the downloadable application SF 424, Budget Information—Non- obtain a TIN from the Internal Revenue package for this competition by the Construction Programs (ED 524), and all Service. If you are an individual, you CFDA number. Do not include the necessary assurances and certifications. • You must upload any narrative can obtain a TIN from the Internal CFDA number’s alpha suffix in your sections and all other attachments to Revenue Service or the Social Security search (e.g., search for 84.021, not your application as files in a PDF Administration. If you need a new TIN, 84.021A or B). Please note the following: (Portable Document) read-only, non- please allow 2–5 weeks for your TIN to • When you enter the Grants.gov site, modifiable format. Do not upload an become active. you will find information about interactive or fillable PDF file. If you The CCR registration process may take submitting an application electronically upload a file type other than a read- five or more business days to complete. through the site, as well as the hours of only, non-modifiable PDF or submit a If you are currently registered with the operation. password-protected file, we will not CCR, you may not need to make any • Applications received by Grants.gov review that material. changes. However, please make certain are date and time stamped. Your • Your electronic application must that the TIN associated with your DUNS application must be fully uploaded and comply with any page-limit number is correct. Also note that you submitted and must be date and time requirements described in this notice. will need to update your CCR stamped by the Grants.gov system no • After you electronically submit registration on an annual basis. This later than 4:30:00 p.m., Washington, DC your application, you will receive from may take three or more business days to time, on the application deadline date. Grants.gov an automatic notification of complete. Except as otherwise noted in this receipt that contains a Grants.gov In addition, if you are submitting your section, we will not accept your tracking number. (This notification application via Grants.gov, you must (1) application if it is received—that is, date indicates receipt by Grants.gov only, not be designated by your organization as an and time stamped by the Grants.gov receipt by the Department.) The Authorized Organization Representative system—after 4:30:00 p.m., Washington, Department then will retrieve your (AOR); and (2) register yourself with DC time, on the application deadline application from Grants.gov and send a Grants.gov as an AOR. Details on these date. We do not consider an application second notification to you by email. steps are outlined at the following that does not comply with the deadline This second notification indicates that Grants.gov Web page: http:// requirements. When we retrieve your the Department has received your www.grants.gov/applicants/ application from Grants.gov, we will application and has assigned your _ get registered.jsp. notify you if we are rejecting your application a PR/Award number (an ED- 7. Other Submission Requirements: application because it was date and time specified identifying number unique to Applications for grants under this stamped by the Grants.gov system after your application). program must be submitted 4:30:00 p.m., Washington, DC time, on • We may request that you provide us electronically unless you qualify for an the application deadline date. original signatures on forms at a later exception to this requirement in • The amount of time it can take to date. accordance with the instructions in this upload an application will vary Application Deadline Date Extension section. depending on a variety of factors, in Case of Technical Issues with the a. Electronic Submission of including the size of the application and Grants.gov System: If you are Applications. the speed of your Internet connection. experiencing problems submitting your Applications for grants under the GPA Therefore, we strongly recommend that application through Grants.gov, please Program, CFDA numbers 84.021A and you do not wait until the application contact the Grants.gov Support Desk, 84.021B, must be submitted deadline date to begin the submission toll free, at 1–800–518–4726. You must electronically using the process through Grants.gov. obtain a Grants.gov Support Desk Case Governmentwide Grants.gov Apply site • You should review and follow the Number and must keep a record of it. at http://www.Grants.gov. Through this Education Submission Procedures for If you are prevented from site, you will be able to download a submitting an application through electronically submitting your copy of the application package, Grants.gov that are included in the application on the application deadline complete it offline, and then upload and application package for this competition date because of technical problems with submit your application. You may not to ensure that you submit your the Grants.gov system, we will grant you email an electronic copy of a grant application in a timely manner to the an extension until 4:30:00 p.m., application to us. Grants.gov system. You can also find the Washington, DC time, the following

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business day to enable you to transmit For GPA short-term projects on or before the application deadline your application electronically or by (84.021A): Loveen Bains, Fulbright-Hays date, to the Department at the following hand delivery. You also may mail your Group Projects Abroad Program, U.S. address: U.S. Department of Education, application by following the mailing Department of Education, 1990 K Street Application Control Center, Attention: instructions described elsewhere in this NW., Room 6091, Washington, DC (CFDA Number 84.021A or 84.021B) notice. 20006–8521. FAX: (202) 502–7860. 550 12th Street SW., Room 7041, If you submit an application after For GPA advanced overseas intensive Potomac Center Plaza, Washington, DC 4:30:00 p.m., Washington, DC time, on language training long-term projects 20202–4260. the application deadline date, please (84.021B): Michelle Guilfoil, Fulbright- The Application Control Center accepts contact the person listed under For Hays Group Projects Abroad Program, hand deliveries daily between 8 a.m. Further Information Contact in section U.S. Department of Education, 1990 K and 4:30:00 p.m., Washington, DC time, VII of this notice and provide an Street NW., Room 6098, Washington, except Saturdays, Sundays, and Federal explanation of the technical problem DC 20006–8521. FAX: (202) 502–7860. holidays. you experienced with Grants.gov, along Your paper application must be submitted in accordance with the mail Note for Mail or Hand Delivery of Paper with the Grants.gov Support Desk Case Applications: If you mail or hand deliver Number. We will accept your or hand delivery instructions described your application to the Department— application if we can confirm that a in this notice. (1) You must indicate on the envelope technical problem occurred with the b. Submission of Paper Applications (and, if not provided by the Department, in Grants.gov system and that that problem by Mail. Item 11 of the SF 424) the CFDA number, affected your ability to submit your If you qualify for an exception to the including suffix letter, if any, of the application by 4:30:00 p.m., electronic submission requirement, you competition under which you are submitting Washington, DC time, on the may mail (through the U.S. Postal your application; and application deadline date. The Service or a commercial carrier) your (2) The Application Control Center will application to the Department. You mail to you a notification of receipt of your Department will contact you after a grant application. If you do not receive this determination is made on whether your must mail the original and two copies notification within 15 business days from the application will be accepted. of your application, on or before the application deadline date, you should call application deadline date, to the Note: The extensions to which we refer in the U.S. Department of Education this section apply only to the unavailability Department at the following address: Application Control Center at (202) 245– of, or technical problems with, the Grants.gov U.S. Department of Education, 6288. system. We will not grant you an extension Application Control Center, Attention: if you failed to fully register to submit your (CFDA Number 84.021A or 84.021B) LBJ V. Application Review Information application to Grants.gov before the Basement Level 1, 400 Maryland 1. General: For FY 2012, short-term application deadline date and time or if the Avenue SW., Washington, DC 20202– project applications will be reviewed by technical problem you experienced is 4260. unrelated to the Grants.gov system. separate panels according to world area. You must show proof of mailing Each panel reviews, scores, and ranks Exception to Electronic Submission consisting of one of the following: its applications separately from the Requirement: You qualify for an (1) A legibly dated U.S. Postal Service applications assigned to the other world exception to the electronic submission postmark. area panels. However, all applications requirement, and may submit your (2) A legible mail receipt with the will be ranked against each other from application in paper format, if you are date of mailing stamped by the U.S. the highest to the lowest score for unable to submit an application through Postal Service. funding purposes. Advanced overseas the Grants.gov system because— (3) A dated shipping label, invoice, or intensive language training long-term • You do not have access to the receipt from a commercial carrier. projects will be reviewed by one panel Internet; or (4) Any other proof of mailing across world areas. A rank order from • You do not have the capacity to acceptable to the Secretary of the U.S. highest to lowest score will be upload large documents to the Department of Education. developed for each of the two types of Grants.gov system; and If you mail your application through projects and will be used for funding • No later than two weeks before the the U.S. Postal Service, we do not purposes. application deadline date (14 calendar accept either of the following as proof 2. Selection Criteria: The selection days; or, if the fourteenth calendar day of mailing: criteria for this program are from 34 CFR before the application deadline date (1) A private metered postmark. 664.31 and are as follows: (a) Plan of falls on a Federal holiday, the next (2) A mail receipt that is not dated by operation (20 points); (b) Quality of key business day following the Federal the U.S. Postal Service. personnel (10 points); (c) Budget and holiday), you mail or fax a written If your application is postmarked after cost effectiveness (10 points); (d) statement to the Department, explaining the application deadline date, we will Evaluation plan (20 points); (e) which of the two grounds for an not consider your application. Adequacy of resources (5 points); (f) exception prevent you from using the Note: The U.S. Postal Service does not Potential impact of the project on the Internet to submit your application. uniformly provide a dated postmark. Before development of the study of modern If you mail your written statement to relying on this method, you should check foreign languages and area studies in the Department, it must be postmarked with your local post office. American education (15 points); (g) The no later than two weeks before the c. Submission of Paper Applications project’s relevance to the applicant’s application deadline date. If you fax by Hand Delivery. educational goals and its relationship to your written statement to the If you qualify for an exception to the its program development in modern Department, we must receive the faxed electronic submission requirement, you foreign languages and area studies (5 statement no later than two weeks (or a courier service) may deliver your points); and (h) The extent to which before the application deadline date. paper application to the Department by direct experience abroad is necessary to Address and mail or fax your hand. You must deliver the original and achieve the project’s objectives and the statement to: two copies of your application, by hand, effectiveness with which relevant host

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country resources will be utilized (10 in 2 CFR part 170 should you receive U.S. Department of Education, 1990 K points). Additional information about funding under the competition. This Street NW., Room 6098, Washington, these criteria is in the application does not apply if you have an exception DC 20006–8521. Telephone: (202) 502– package for this competition. under 2 CFR 170.110(b). (b) At the end 7625 or by email: 3. Review and Selection Process: We of your project period, you must submit [email protected]. The agency remind potential applicants that in a final performance report, including contact person does not mail reviewing applications in any financial information, as directed by the application materials and does not discretionary grant competition, the Secretary. If you receive a multi-year accept applications. Secretary may consider, under 34 CFR award, you must submit an annual If you use a TDD or a TTY, call the 75.217(d)(3), the past performance of the performance report that provides the FRS, toll-free, at 1–800–877–8339. applicant in carrying out a previous most current performance and financial VIII. Other Information award, such as the applicant’s use of expenditure information as directed by funds, achievement of project the Secretary under 34 CFR 75.118. Accessible Format: Individuals with objectives, and compliance with grant Grantees are required to use the disabilities can obtain this document conditions. The Secretary may also electronic data instrument International and a copy of the application package in consider whether the applicant failed to Resource Information System (IRIS) to an accessible format (e.g., braille, large submit a timely performance report or complete the final report. The Secretary print, audiotape, or compact disk) on submitted a report of unacceptable may also require more frequent request to the program contact person quality. performance reports under 34 CFR listed under For Further Information In addition, in making a competitive 75.720(c). For specific requirements on Contact in section VII of this notice. grant award, the Secretary also requires reporting, please go to http:// Electronic Access to This Document: various assurances including those www.ed.gov/fund/grant/apply/ The official version of this document is applicable to Federal civil rights laws appforms/appforms.html. the document published in the Federal that prohibit discrimination in programs 4. Performance Measures: Under the Register. Free Internet access to the or activities receiving Federal financial Government Performance and Results official edition of the Federal Register assistance from the Department of Act of 1993, the following measures will and the Code of Federal Regulations is Education (34 CFR 100.4, 104.5, 106.4, be used by the Department to evaluate available via the Federal Digital System 108.8, and 110.23). the success of the program: at: http://www.gpo.gov/fdsys. At this 4. Special Conditions: Under 34 CFR a. The percentage of Fulbright-Hays site, you can view this document, as 74.14 and 80.12, the Secretary may Group Projects Abroad advanced well as all other documents of the impose special conditions on a grant if overseas intensive language training Department published in the Federal the applicant or grantee is not long-term participants who demonstrate Register, in text or Adobe Portable financially stable; has a history of a significant increase in their pre-post Document Format (PDF). To use PDF, unsatisfactory performance; has a scores on a standardized measure of you must have Adobe Acrobat Reader, financial or other management system language competency. (84.021B only) which is available free at this site. You that does not meet the standards in 34 b. Percentage of all GPA projects may also access documents of the CFR parts 74 or 80, as applicable; has judged to be successful by the program Department published in the Federal not fulfilled the conditions of a prior officer, based on a review of information Register by using the article search grant; or is otherwise not responsible. provided in annual performance reports. feature at www.federalregister.gov. VI. Award Administration Information (84.021A and 84.021B) Specifically through the advanced The information provided by grantees search feature at this site, you can limit 1. Award Notices: If your application in their performance reports submitted your search to documents published by is successful, we notify your U.S. via IRIS will be the source of data for the Department. Representative and U.S. Senators and this measure. Reporting screens for Dated: February 17, 2012. send you a Grant Award Notification institutions can be viewed at: (GAN). We may notify you informally, For GPA short-term projects: http:// Eduardo M. Ochoa, also. iris.ed.gov/iris/pdfs/gpa_director.pdf Assistant Secretary for Postsecondary If your application is not evaluated or and http://iris.ed.gov/iris/pdfs/ Education. not selected for funding, we notify you. gpa_participant.pdf. [FR Doc. 2012–4239 Filed 2–22–12; 8:45 am] 2. Administrative and National Policy For GPA advanced overseas intensive BILLING CODE 4000–01–P Requirements: We identify language training projects: http:// administrative and national policy iris.ed.gov/iris/pdfs/ requirements in the application package gpa_lang_director.pdf and http:// DEPARTMENT OF ENERGY and reference these and other iris.ed.gov/iris/pdfs/ [FE Docket No. 11–162–LNG] requirements in the Applicable gpa_lang_participant.pdf. Regulations section in this notice. VII. Agency Contact Cameron LNG, LLC; Application for We reference the regulations outlining Long-Term Authorization To Export the terms and conditions of an award in For Further Information Contact: Domestically Produced Liquefied the Applicable Regulations section in For GPA short-term projects Natural Gas to Non-Free Trade this notice and include these and other (84.021A): Loveen Bains, Fulbright-Hays Agreement Countries for 20 Years specific conditions in the GAN. The Group Projects Abroad Program, U.S. GAN also incorporates your approved Department of Education, 1990 K Street AGENCY: Office of Fossil Energy, DOE. application as part of your binding NW., Room 6091, Washington, DC ACTION: Notice of application. commitments under the grant. 20006–8521. Telephone: (202) 502–7709 3. Reporting: (a) If you apply for a or by email: [email protected]. SUMMARY: The Office of Fossil Energy grant under this competition, you must For GPA advanced overseas intensive (FE) of the Department of Energy (DOE) ensure that you have in place the language training long-term projects gives notice of receipt of an application necessary processes and systems to (84.021B): Michelle Guilfoil, Fulbright- (Application), filed on December 21, comply with the reporting requirements Hays Group Projects Abroad Program, 2011, by Cameron LNG, LLC (Cameron),

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requesting long-term, multi-contract General Counsel for Electricity and Cameron notes that the new facilities authorization to export up to 12 million Fossil Energy, Forrestal Building, proposed as part of the Project will metric tons per annum (mtpa) of Room 6B–256, 1000 Independence include natural gas pre-treatment, domestically produced liquefied natural Ave. SW., Washington, DC 20585, liquefaction, and export facilities with a gas (LNG) (equivalent to approximately (202) 586–3397. capacity of up to 12 mtpa of LNG 1, plus 620 billion cubic feet [Bcf] per year of SUPPLEMENTARY INFORMATION: upgrades to the existing equipment and natural gas) for a 20-year period, additional utilities. commencing on the earlier of the date Background Cameron states that its proposed of first export or seven years from the Cameron is a Delaware limited facilities will permit gas to be received date of issuance of the requested liability company with executive offices by pipeline at the Terminal, where it authorization. Cameron seeks in San Diego, California. Cameron LNG will be liquefied and then loaded from authorization to export LNG from the is a wholly-owned indirect subsidiary of the Terminal’s storage tanks onto Cameron LNG Terminal, owned by Sempra Energy, a publicly-traded vessels berthed at its existing marine Cameron, in Cameron Parish, Louisiana, corporation. Cameron owns and facility. Cameron states that, once to any country (1) with which the operates the Cameron LNG Terminal operational, the terminal will have the United States does not have a free trade (Terminal) in Cameron Parish capability to (i) liquefy domestically agreement (FTA) requiring national Louisiana. produced gas for export, or (ii) import treatment for trade in natural gas, (2) In 2003, the Federal Energy LNG and either re-gasify it for delivery which has or in the future develops the Regulatory Commission (FERC) to domestic markets or export it to capacity to import LNG via ocean-going approved the construction and foreign markets. Cameron states that the carrier, and (3) with which trade is not operation of the Terminal, authorizing a Project will not result in an increase in prohibited by U.S. law or policy. maximum send-out of 1.5 Bcf/d of the number of ship transits currently Cameron is requesting this authorization regasified LNG from the facility to authorized for the Terminal, and that both on its own behalf and as agent for domestic markets. In a subsequent the total amount of LNG processed other parties who hold title to the LNG order, issued in 2007, the FERC would not exceed the current maximum at the time of export. The Application authorized Cameron to construct and authorized send-out rate of 1.8 Bcf/d. was filed under section 3 of the Natural operate additional facilities expanding Cameron acknowledges that any Gas Act (NGA). Protests, motions to the maximum send-out capacity to 1.8 modifications to the Terminal are intervene, notices of intervention, and Bcf/d. subject to review and approval by the Cameron LNG completed construction written comments are invited. FERC. Cameron states that it will of the Terminal and placed it into initiate the FERC mandatory pre-filing DATES: Protests, motions to intervene or service in July 2009. Initially, the notices of intervention, as applicable, review process for Phase I of the project Terminal was used for the sole purpose upon completion of Cameron’s initial requests for additional procedures, and of receiving and storing foreign-sourced written comments are to be filed using facility planning and design. Cameron LNG, regasifying it, and sending to out anticipates the pre-filing request to procedures detailed in the Public for delivery to domestic markets. In Comment Procedures section no later FERC will be made no later than the January 2011, the FERC authorized second quarter of 2012. than 4:30 p.m., eastern time, April 23, Cameron to operate the Terminal for the 2012. additional purpose of exporting LNG, Related Applications and ADDRESSES: which had been previously imported. Authorizations Electronic Filing on the Federal The Terminal has an existing This Application is the second part of eRulemaking Portal under FE Docket interconnection with Cameron Interstate a two-phased authorization sought by No. 11–162–LNG: http://www. Pipeline LLC (Cameron Interstate), an Cameron to export domestically regulations.gov. affiliate of Cameron LNG. Cameron produced natural gas as LNG from the Electronic Filing by email: fergas@hq. Interstate, an interstate pipeline Cameron Terminal. On November 10, doe.gov. regulated by the FERC, consists of a 36.2 2011, in Docket No. 11–145–LNG, Regular Mail: U.S. Department of mile pipeline connecting the Terminal Cameron submitted an application to Energy (FE–34), Office of Natural Gas with five other interstate pipelines. DOE/FE requesting authority to export Regulatory Activities, Office of Fossil These interstate pipelines provide domestically produced LNG to those Energy, P.O. Box 44375, Washington, Cameron, directly or indirectly, with countries with which the United States DC 20026–4375. access to all of the major gas producing has an FTA or subsequently enters into Hand Delivery or Private Delivery basins in the Gulf Coast and an FTA requiring national treatment for Services (e.g., FedEx, UPS, etc.): U.S. Midcontinent regions of the United trade in natural gas, provided that the Department of Energy (FE–34), Office of States, including areas with recent destination country has the capacity to Natural Gas Regulatory Activities, Office discoveries of shale gas and other import LNG via ocean going vessels.2 of Fossil Energy, Forrestal Building, unconventional reserves. The requested export volume in that Room 3E–042, 1000 Independence Cameron currently is finalizing the application is identical to the export Avenue SW., Washington, DC 20585. design for natural gas processing and FOR FURTHER INFORMATION CONTACT: liquefaction facilities to receive and 1 Cameron states that 12 mtpa of LNG is Larine Moore or Lisa Tracy, U.S. liquefy domestically produced natural equivalent to approximately 1.7 Bcf per day of Department of Energy (FE–34), Office gas at the Terminal for export to foreign natural gas. of Natural Gas Regulatory Activities, markets (the ‘‘Project’’). Cameron states 2 The United States currently has free trade agreements requiring national treatment for trade in Office of Fossil Energy, Forrestal that its liquefaction Project will be natural gas with Australia, Bahrain, Canada, Chile, Building, Room 3E–042, 1000 integrated with existing facilities at its Dominican Republic, El Salvador, Guatemala, Independence Avenue SW., Terminal. Existing facilities at the Honduras, Jordan, Mexico, Morocco, Nicaragua, Washington, DC 20585, (202) 586– Terminal presently consist of two Oman, Peru, and Singapore. FTAs with Costa Rica and Israel do not require national treatment for 9478; (202) 586–4523. marine berths, three full containment trade in natural gas. FTAs with Colombia, Panama, Edward Myers, U.S. Department of LNG storage tanks, LNG vaporization and South Korea have been ratified by Congress but Energy, Office of the Assistant systems, and associated utilities. have not yet taken effect.

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volume in the current Application of 12 FE requirements for an exporter or transaction-specific information is only million metric tons of LNG per year, agent. In this regard, Cameron appropriate after a long-term contract equivalent to 620 Bcf/year, or 1.7 Bcf/ referenced DOE/FE Order No. 2913 has been executed. day of natural gas. The Cameron (Order 2913), issued February 10, 2011, Lastly, Cameron requests that DOE/FE liquefaction facilities would be limited to Freeport LNG Expansion, L.P. and issue a conditional order authorizing the to exports of up to the equivalent of 620 FLNG Liquefaction, LLC, in FE Docket long-term export of LNG subject to Bcf/year of natural gas, including both No. 10–160–LNG, which approved a completion of a satisfactory exports to FTA and non-FTA countries. proposal by the applicant and environmental review by FERC. On January 17, 2012, in DOE/FE Order established procedures to register Public Interest Considerations No. 3059 (FE Docket No. 11–145–LNG), entities for which the authorization DOE/FE granted Cameron authority to holder will act as agent. Cameron also In support of its Application, export domestically produced LNG from states that it will file with DOE/FE any Cameron states that section 3(a) of the the Terminal to those countries with relevant long-term commercial NGA sets forth the statutory standard for which the United States has an FTA. agreements reached with LNG title review of this Application and creates a On December 3, 2010, in DOE/FE holders on whose behalf the LNG would rebuttable presumption that proposed Order No. 2885 (Docket No. 10–110– be exported. exports of natural gas are in the public LNG), FE granted Sempra LNG Cameron states that the long-term interest. Cameron acknowledges that Marketing, LLC (SLNG), an affiliate of authorization requested in this DOE has explained that opponents of an Cameron, blanket authorization to Application is necessary in order to export application must make an export from the Terminal LNG that had permit Cameron to incur the substantial affirmative showing of inconsistency been previously imported into the costs of developing the Project and with the public interest in order to United States from foreign sources in an secure customer contracts. Cameron overcome the rebuttable presumption amount up to the equivalent of 250 Bcf notes that the contract terms between favoring export applications. Cameron of natural gas. The Order authorizes Cameron and its customers will be set also notes that DOE has repeatedly Cameron to export this LNG to any forth in one or more long-term service reaffirmed the continued applicability country with the capacity to import or agency agreements. These agreements of its policy guidelines and has held LNG via ocean-going carrier and with are expected to run for terms of up to that they apply equally to export which trade is not prohibited by U.S. 20 years and will run concurrently with applications though originally written to law or policy. The authorization in FE Cameron’s export authorization. apply to imports. In addition, Cameron Docket No. 10–110–LNG, which does Cameron states that is has not yet highlights that the DOE, guided by its not permit the export of domestically entered into any of these long-term Policy Guidelines and DOE Delegation produced LNG, extends from February arrangements, but that once executed, Order No. 0204–111, presumes that 1, 2011, through January 31, 2013. On Cameron will file with DOE/FE any competitive markets largely free of June 22, 2010, in DOE/FE Order No. commercial agreements reached with governmentally-imposed restrictions 2806 (FE Docket No. 10–66–LNG), FE title holders on whose behalf Cameron will benefit the public. Cameron also granted SLNG blanket authorization to intends to export the LNG. states that DOE has applied additional import to the Terminal LNG from Cameron states that the sources of considerations in determining whether various international sources. DOE/FE natural gas for the Project will include proposed exports are in the public Order No. 2806 extends from September supplies available from the Texas and interest such as: whether the exports 1, 2010, through August 31, 2012. Louisiana producing regions, as well as will be beneficial for regional Cameron notes that nothing in its various unconventional supply areas, economies, the extent to which the current application to export LNG to such as the Barnett, Haynesville, and export will foster competition and non-FTA nations is intended to Eagle Ford shale gas formations. mitigate trade imbalances with foreign supersede or otherwise modify the Cameron states that their customers will nations, and the degree to which the authorizations granted by DOE to SLNG. be able to deliver natural gas supplies to export of LNG would encourage the Terminal from five interstate efficient management of U.S. domestic Current Application pipelines: Florida Gas Transmission natural resources. Cameron contends In the instant Application, Cameron Company, Transcontinental Gas that the export of LNG as proposed in seeks long-term, multi-contract Pipeline Company, LLC, Texas Eastern the Application satisfies each of these authorization to export up to 12 mtpa of Transmission Corporation, Tennessee considerations. domestically produced LNG from the Gas Pipeline Company, and Trunkline In support of its Application, Terminal, equivalent to approximately Gas Company. In addition, Cameron Cameron submitted the following 620 Bcf/year of natural gas for a 20-year notes that the Terminal is in close studies: a study on natural gas prices period, commencing on the earlier of proximity to the Henry Hub and to 11 commissioned by Cameron from the the date of first export or seven years other market centers in Louisiana and independent consulting firm of Black & from the date the authorization is Texas, which will give customers Veatch, and an in-house economic issued. Cameron seeks authorization to additional options for purchasing impact study prepared by Cameron. In export domestically produced LNG to supplies. addition, in support of its Application, countries with which the United States Cameron notes that in recent orders Cameron references numerous studies does not have an FTA and with which granting long-term authorizations to and reports published by the Energy trade is not prohibited by U.S. law or export LNG, DOE/FE did not require Information Administration (EIA.) policy. that applicants submit transaction- Based on these studies, Cameron Cameron requests authorization to specific contract information with their contends that the export of domestically export LNG on its own behalf (i.e., applications, pursuant to Section produced LNG, as proposed in the holding title to the LNG at the time of 590.202(b) of the DOE’s regulations. Application, is in the public interest for export) or by acting as agent for others. Cameron requests that the DOE the following reasons: In the instances where Cameron will act maintain this same position in the First, Cameron contends that as agent for other customers, Cameron review of its Application. Cameron sufficient reserves now exist to satisfy states that it will comply with all DOE/ maintains that the submittal of the domestic demand as well as the

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proposed LNG exports. Cameron points process of developing their own issued in this proceeding until DOE has to the gains in drilling productivity and unconventional natural gas resources. met its NEPA responsibilities. extraction technology enhancements Further details can be found in the Due to the complexity of the issues that have enabled rapid growth in Application, which has been posted at raised by the Applicants, interested supplies from unconventional shale http://www.fe.doe.gov/programs/ persons will be provided 60 days from formations in the United States. In gasregulation/index.html. the date of publication of this Notice in which to submit comments, protests, addition, Cameron states that, based on Environmental Impact numerous studies and reports, the motions to intervene, notices of United States has an approximate 90- to Cameron states that in the next intervention, or motions for additional 100-year inventory of recoverable several months, it will initiate the pre- procedures. filing review process at FERC for the natural gas resources. Public Comment Procedures Second, Cameron contends that over proposed Project facilities. Cameron the past decade, there has been minimal anticipates that, consistent with the In response to this notice, any person growth in the demand for natural gas in requirements of the National may file a protest, comments, or a the United States. Based on a Environment Policy Act (NEPA), FERC motion to intervene or notice of comparison of actual demand and prices will act as the lead agency for intervention, as applicable. Any person in 2010, along with forecasted demand environmental review, with DOE/FE wishing to become a party to the and prices in the year 2025, Cameron acting as a cooperating agency. Cameron proceeding must file a motion to contends that U.S. natural gas resources acknowledges that the requested intervene or notice of intervention, as are more than sufficient to authorization to be issued by DOE/FE applicable. The filing of comments or a accommodate both domestic demand would not take effect until FERC has protest with respect to the Application and the exports proposed in the completed its NEPA review and has will not serve to make the commenter or Application. granted Cameron authorization for the protestant a party to the proceeding, Third, based on the Black & Veatch export of domestic LNG from the although protests and comments analysis of the proposed LNG export Cameron facility. Cameron requests that received from persons who are not impact on U.S. natural gas prices, DOE/FE issue a conditional order parties will be considered in Cameron concludes that the exports authorizing the export of domestic LNG determining the appropriate action to be proposed in this Application will have from the Terminal conditioned on taken on the Application. All protests, a minimal impact on domestic natural completion of a satisfactory comments, motions to intervene, or gas prices. In addition, Cameron environmental review and subsequent notices of intervention must meet the contends that any upward pressure on authorization by FERC. requirements specified by the regulations in 10 CFR part 590. prices due to increased demand for DOE/FE Evaluation export would likely be offset by a Filings may be submitted using one of reduction in domestic price volatility. The Application will be reviewed the following methods: (1) Submitting Fourth, Cameron states that the export pursuant to section 3 of the NGA, as comments in electronic form on the of domestically produced LNG will amended, and the authority contained Federal eRulemaking Portal at http:// provide the following economic in DOE Delegation Order No. 00– www.regulations.gov, by following the benefits, as detailed by its own 002.00L (April 29, 2011) and DOE on-line instructions and submitting Economic Impact Assessment of the Redelegation Order No. 00–002.04E such comments under FE Docket No. Project: (April 29, 2011). In reviewing this LNG 11–162–LNG. DOE/FE suggests that A. There will be substantial benefits export Application, DOE will consider electronic filers carefully review to the national, regional and local any issues required by law or policy. To information provided in their economies, including an improvement the extent determined to be relevant or submissions and include only in the U.S. balance of trade of $2.8 appropriate, these issues will include information that is intended to be billion to nearly $7.1 billion per year, the impact of LNG exports associated publicly disclosed; (2) emailing the equal to 0.6 to 1.4 percent of the trade with this Application, and the filing to [email protected], with FE deficit, based on the expected value of cumulative impact of any other Docket No. 11–162–LNG in the title the exports. application(s) previously approved, on line; (3) mailing an original and three B. There will be increased exports and domestic need for the gas proposed for paper copies of the filing to the Office international trade based on Cameron’s export, adequacy of domestic natural Natural Gas Regulatory Activities at the estimate that its customers will export gas supply, U.S. energy security, and address listed in ADDRESSES; or (4) hand an average of approximately $8.6 billion any other issues, including the impact delivering an original and three paper of LNG per year. Cameron contends that on the U.S. economy (GDP), consumers, copies of the filing to the Office of this will have a positive impact on the and industry, job creation, U.S. balance Natural Gas Regulatory Activities at the balance of trade between the United of trade, international considerations, address listed in ADDRESSES. States and its international trading and whether the arrangement is A decisional record on the partners, and will promote liberalization consistent with DOE’s policy of Application will be developed through of the global gas market by fostering promoting competition in the responses to this notice by parties, increased liquidity and trade at prices marketplace by allowing commercial including the parties’ written comments established by market forces. parties to freely negotiate their own and replies thereto. Additional C. There will be environmental trade arrangements. Parties that may procedures will be used as necessary to benefits associated with LNG exports. oppose this Application should achieve a complete understanding of the Specifically, the United States will be in comment in their responses on these facts and issues. A party seeking a position to provide countries with issues, as well as any other issues intervention may request that additional low-carbon natural gas as an alternative deemed relevant to the Application. procedures be provided, such as to higher CO2¥emitting fossil fuels such NEPA requires DOE to give additional written comments, an oral as coal and fuel oil. LNG exports from appropriate consideration to the presentation, a conference, or trial-type the United States would serve as an environmental effects of its proposed hearing. Any request to file additional interim fuel for countries that are in the decisions. No final decision will be written comments should explain why

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they are necessary. Any request for an Notice of this meeting is required under PCAST will also receive an update on oral presentation should identify the the Federal Advisory Committee Act the status of several of its studies substantial question of fact, law, or (FACA), 5 U.S.C., App. including those on nanotechnology policy at issue, show that it is material DATES: Friday, March 9, 2012, 10:00 research and development, the future of and relevant to a decision in the a.m. to 5:00 p.m. (EST). the U.S. science and technology proceeding, and demonstrate why an ADDRESSES: The meeting will be held at research enterprise, and advancing oral presentation is needed. Any request the Carnegie Endowment for innovation in drug development and for a conference should demonstrate International Peace, (in the Root Room) evaluation. Additional information and why the conference would materially at 1779 Massachusetts Avenue NW., the agenda, including any changes that advance the proceeding. Any request for Washington, DC, . arise, will be posted at the PCAST Web a trial-type hearing must show that there FOR FURTHER INFORMATION CONTACT: site at: http://whitehouse.gov/ostp/ are factual issues genuinely in dispute Information regarding the meeting pcast. Closed Portion of the Meeting: PCAST that are relevant and material to a agenda, time, location, and how to may hold a closed meeting of decision and that a trial-type hearing is register for the meeting is available on approximately one hour with the necessary for a full and true disclosure the PCAST Web site at: http:// of the facts. President on March 9, 2012, which must whitehouse.gov/ostp/pcast. A live video take place in the White House for the If an additional procedure is webcast and an archive of the webcast scheduled, notice will be provided to all President’s scheduling convenience and after the event are expected to be to maintain Secret Service protection. parties. If no party requests additional available at http://whitehouse.gov/ostp/ procedures, a final Opinion and Order This meeting will be closed to the pcast. The archived video will be public because such portion of the may be issued based on the official available within one week of the record, including the Application and meeting is likely to disclose matters that meeting. Questions about the meeting are to be kept secret in the interest of responses filed by parties pursuant to should be directed to Dr. Deborah D. this notice, in accordance with 10 CFR national defense or foreign policy under Stine, PCAST Executive Director, by 5 U.S.C. 552b(c)(1). 590.316. email at: [email protected], or by The Application filed by Cameron is Public Comments: It is the policy of telephone at (202) 456–6006. Please available for inspection and copying in the PCAST to accept written public note that public seating for this meeting the Office of Natural Gas Regulatory comments of any length, and to is limited and is available on a first- Activities docket room, Room 3E–042, accommodate oral public comments come, first-served basis. 1000 Independence Avenue SW., whenever possible. The PCAST expects SUPPLEMENTARY INFORMATION: Washington, DC 20585. The docket The that public statements presented at its room is open between the hours of 8 President’s Council of Advisors on meetings will not be repetitive of a.m. and 4:30 p.m., Monday through Science and Technology (PCAST) is an previously submitted oral or written Friday, except Federal holidays. The advisory group of the nation’s leading statements. Application and any filed protests, scientists and engineers, appointed by The public comment period for this motions to intervene or notice of the President to augment the science meeting will take place on March 9, interventions, and comments will also and technology advice available to him 2012, at a time specified in the meeting be available electronically by going to from inside the White House and from agenda posted on the PCAST Web site the following DOE/FE Web address: cabinet departments and other Federal at http://whitehouse.gov/ostp/pcast. This public comment period is designed http://www.fe.doe.gov/programs/ agencies. See the Executive Order at only for substantive commentary on gasregulation/index.html. In addition, http://www.whitehouse.gov/ostp/pcast. PCAST’s work, not for business any electronic comments filed will also PCAST is consulted about and provides analyses and recommendations marketing purposes. be available at: http:// Oral Comments: To be considered for www.regulations.gov. concerning a wide range of issues where understandings from the domains of the public speaker list at the meeting, Issued in Washington, DC, on February 16, science, technology, and innovation interested parties should register to 2012. may bear on the policy choices before speak at http://whitehouse.gov/ostp/ John A. Anderson, the President. PCAST is co-chaired by pcast, no later than 12:00 p.m. Eastern Manager, Natural Gas Regulatory Activities, Dr. John P. Holdren, Assistant to the Standard Time on March 1, 2012. Phone Office of Oil and Gas Global Security and President for Science and Technology, or email reservations will not be Supply, Office of Fossil Energy. and Director, Office of Science and accepted. To accommodate as many [FR Doc. 2012–4205 Filed 2–22–12; 8:45 am] Technology Policy, Executive Office of speakers as possible, the time for public BILLING CODE 6450–01–P the President, The White House; and Dr. comments will be limited to two (2) Eric S. Lander, President, Broad minutes per person, with a total public Institute of the Massachusetts Institute comment period of 30 minutes. If more DEPARTMENT OF ENERGY of Technology and Harvard. speakers register than there is space Type of Meeting: Open and Closed. available on the agenda, PCAST will President’s Council of Advisors on Proposed Schedule and Agenda: The randomly select speakers from among Science and Technology (PCAST) President’s Council of Advisors on those who applied. Those not selected AGENCY: Department of Energy, DOE. Science and Technology (PCAST) is to present oral comments may always ACTION: Notice of partially closed scheduled to meet in open session on file written comments with the meeting. March 9, 2012, from 10 a.m. to 5 p.m. committee. Speakers are requested to Open Portion of Meeting: During this bring at least 25 copies of their oral SUMMARY: This notice sets forth the open meeting, PCAST is tentatively comments for distribution to the PCAST schedule and summary agenda for a scheduled to hear from speakers who members. partially closed meeting of the will provide an overview of the Written Comments: Although written President’s Council of Advisors on Department of Agriculture’s science, comments are accepted continuously, Science and Technology (PCAST), and technology, and innovation activities, written comments should be submitted describes the functions of the Council. and China and U.S. competitiveness. to PCAST no later than 12:00 p.m.

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Eastern Standard Time on March 1, Description: Rate Schedule No. 95 Docket Numbers: ER12–1091–000. 2012, so that the comments may be Errata to Original filing to be effective 3/ Applicants: Liberty Power Holdings made available to the PCAST members 20/2012. LLC. prior to this meeting for their Filed Date: 2/14/12. Description: Market-Based Rate Tariff consideration. Information regarding Accession Number: 20120214–5139. Baseline to be effective 2/14/2012. how to submit comments and Comments Due: 5 p.m. ET 2/28/12. Filed Date: 2/14/12. documents to PCAST is available at Docket Numbers: ER12–856–002. Accession Number: 20120214–5141. http://whitehouse.gov/ostp/pcast in the Applicants: Nevada Power Company. Comments Due: 5 p.m. ET 3/6/12. section entitled ‘‘Connect with PCAST.’’ Description: Rate Schedule No. 96 Docket Numbers: ER12–1092–000. Please note that because PCAST Errata to Original Filing to be effective Applicants: Liberty Power Delaware operates under the provisions of FACA, 3/20/2012. LLC. all public comments and/or Filed Date: 2/14/12. Description: Market-Based Rate Tariff presentations will be treated as public Accession Number: 20120214–5138. Baseline to be effective 2/14/2012. documents and will be made available Comments Due: 5 p.m. ET 2/28/12. Filed Date: 2/14/12. for public inspection, including being Docket Numbers: ER12–1085–000. Accession Number: 20120214–5142. posted on the PCAST Web site. Applicants: Florida Power & Light Comments Due: 5 p.m. ET 3/6/12. Meeting Accommodations: Company. Docket Numbers: ER12–1093–000. Individuals requiring special Description: FPL Compliance filing Applicants: Liberty Power District of accommodation to access this public regarding the Offer of Settlement and Columbia LLC. meeting should contact Dr. Stine at least Settlement Agreement to be effective 10/ Description: Market-Based Rate Tariff ten business days prior to the meeting 1/2011. Baseline to be effective 2/14/2012. so that appropriate arrangements can be Filed Date: 2/14/12. Filed Date: 2/14/12. made. Accession Number: 20120214–5123. Accession Number: 20120214–5143. Issued in Washington, DC, on February 16, Comments Due: 5 p.m. ET 3/6/12. Comments Due: 5 p.m. ET 3/6/12. 2012. Docket Numbers: ER12–1086–000. The filings are accessible in the Carol A. Matthews, Applicants: New York Independent Commission’s eLibrary system by Committee Management Officer. System Operator, Inc., Niagara Mohawk clicking on the links or querying the [FR Doc. 2012–4223 Filed 2–22–12; 8:45 am] Power Corporation. docket number. BILLING CODE 6450–01–P Description: 1829 SGIA NYISO & Any person desiring to intervene or RG&E Browns Race Facility to be protest in any of the above proceedings effective 1/27/2012. must file in accordance with Rules 211 DEPARTMENT OF ENERGY Filed Date: 2/14/12. and 214 of the Commission’s Accession Number: 20120214–5132. Regulations (18 CFR 385.211 and Federal Energy Regulatory Comments Due: 5 p.m. ET 3/6/12. 385.214) on or before 5 p.m. Eastern Commission Docket Numbers: ER12–1087–000. time on the specified comment date. Protests may be considered, but Combined Notice of Filings #1 Applicants: Discount Power, Inc. Description: Market-Based Rate intervention is necessary to become a Take notice that the Commission Baseline to be effective 2/15/2012. party to the proceeding. received the following electric rate Filed Date: 2/14/12. eFiling is encouraged. More detailed filings: Accession Number: 20120214–5133. information relating to filing requirements, interventions, protests, Docket Numbers: ER12–21–003. Comments Due: 5 p.m. ET 3/6/12. service, and qualifying facilities filings Applicants: Agua Caliente Solar, LLC. Docket Numbers: ER12–1088–000. can be found at: http://www.ferc.gov/ Description: Notice of Change in Applicants: PJM Interconnection, docs-filing/efiling/filing-req.pdf. For Status of Agua Caliente Solar, LLC. L.L.C. other information, call (866) 208–3676 Filed Date: 2/14/12. Description: PJM Original Service (toll free). For TTY, call (202) 502–8659. Accession Number: 20120214–5156. Agreement No. 3204; Queue No. W3– Comments Due: 5 p.m. ET 3/6/12. 149 to be effective 1/20/2012. Dated: February 15, 2012. Docket Numbers: ER12–351–002. Filed Date: 2/14/12. Nathaniel J. Davis, Sr., Applicants: Midwest Independent Accession Number: 20120214–5136. Deputy Secretary. Transmission System Operator, Inc. Comments Due: 5 p.m. ET 3/6/12. [FR Doc. 2012–4186 Filed 2–22–12; 8:45 am] Description: 2–14–12 MRES Docket Numbers: ER12–1089–000. BILLING CODE 6717–01–P Attachment MM compliance to be Applicants: ITC Midwest LLC. effective 1/1/2012. Description: ITC Midwest—Storm Filed Date: 2/14/12. Lake Power Partners Notice of DEPARTMENT OF ENERGY Accession Number: 20120214–5126. Succession Filing to be effective 4/16/ Comments Due: 5 p.m. ET 3/6/12. 2012. Federal Energy Regulatory Commission Docket Numbers: ER12–458–002. Filed Date: 2/14/12. Applicants: Quantum Choctaw Power, Accession Number: 20120214–5137. Combined Notice of Filings #2 LLC. Comments Due: 5 p.m. ET 3/6/12. Description: Quantum Choctaw Power Docket Numbers: ER12–1090–000. Take notice that the Commission Compliance Filing to be effective 2/14/ Applicants: Liberty Power Maryland received the following electric rate 2012. LLC. filings: Filed Date: 2/14/12. Description: Market-Based Rate Tariff Docket Numbers: ER12–1075–000 Accession Number: 20120214–5134. Baseline to be effective 2/14/2012. Applicants: Xcel Energy Services Inc. Comments Due: 5 p.m. ET 3/6/12. Filed Date: 2/14/12. Description: Notice of Termination of Docket Numbers: ER12–855–002. Accession Number: 20120214–5140. Service Schedule A to the Municipal Applicants: Nevada Power Company. Comments Due: 5 p.m. ET 3/6/12. Interconnection and Interchange

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Agreement between Northern States Docket Numbers: ER11–4402–002. Docket Numbers: ER12–1071–000. Power Company, a Minnesota Applicants: PJM Interconnection, Applicants: Entergy Arkansas, Inc. Corporation and the City of Buffalo. L.L.C. Description: Compliance Filing for Filed Date: 2/14/12. Description: Compliance filing in ER05–1065 and OA07–32 to be effective Accession Number: 20120214–5059. ER11–4402–001 per Order dated Jan 13 2/13/2012. Comments Due: 5 pm ET 3/6/12. 2012 to be effective 11/1/2011. Filed Date: 2/13/12. Docket Numbers: ER12–922–000. Filed Date: 2/13/12. Accession Number: 20120213–5156. Applicants: Phillips 66 Company. Accession Number: 20120213–5035. Description: Supplemental Comments Due: 5 p.m. ET 3/5/12. Comments Due: 5 p.m. ET 3/5/12. Information of Market Based Rate for Docket Numbers: ER12–41–002. Docket Numbers: ER12–1072–000. Phillips 66 Company. Applicants: ITC Midwest LLC. Applicants: Midwest Independent Filed Date: 2/14/12. Description: Compliance Filing of ITC Transmission System Operator, Inc. Accession Number: 20120214–5074. Midwest to be effective 12/7/2011. Description: 02–13–12 ARR Load Comments Due: 5 pm ET 2/28/12. Filed Date: 2/13/12. Shifts to be effective 4/14/2012. The filings are accessible in the Accession Number: 20120213–5075. Filed Date: 2/13/12. Commission’s eLibrary system by Comments Due: 5 p.m. ET 3/5/12. Accession Number: 20120213–5159. clicking on the links or querying the Docket Numbers: ER12–427–001. Comments Due: 5 p.m. ET 3/5/12. docket number. Applicants: Midwest Independent Any person desiring to intervene or Transmission System Operator, Inc. Docket Numbers: ER12–1073–000. protest in any of the above proceedings Description: 02–13–12 CMMPA Reg. Applicants: Southwest Power Pool, must file in accordance with Rules 211 Asset Compliance to be effective 1/16/ Inc. and 214 of the Commission’s 2012. Description: Submission of Regulations (18 CFR 385.211 and Filed Date: 2/13/12. Cancellation of 2058 SWPA Loss 385.214) on or before 5:00 pm Eastern Accession Number: 20120213–5158. Compensation to be effective 1/1/2012. time on the specified comment date. Comments Due: 5 p.m. ET 3/5/12. Filed Date: 2/13/12. Protests may be considered, but Docket Numbers: ER12–818–001. Accession Number: 20120213–5179. intervention is necessary to become a Applicants: El Paso Electric Company. Comments Due: 5 p.m. ET 3/5/12. party to the proceeding. Description: Refiling of Arlington eFiling is encouraged. More detailed Valley Solar II IA to be effective 1/13/ Docket Numbers: ER12–1074–000. information relating to filing 2012. Applicants: ISO New England Inc., requirements, interventions, protests, Filed Date: 2/13/12. New England Power Pool Participants service, and qualifying facilities filings Accession Number: 20120213–5145. Committee. can be found at: http://www.ferc.gov/ Comments Due: 5 p.m. ET 3/5/12. Description: ISO New England Inc. docs-filing/efiling/filing-req.pdf. For Docket Numbers: ER12–1067–000. submits tariff filing per 35.13(a)(2)(iii: other information, call (866) 208–3676 Applicants: ISO New England Inc. Revisions to Financial Assurance Policy (toll free). For TTY, call (202) 502–8659. Description: ISO New England Inc. to be effective 4/13/2012. Dated: February 14, 2012. 2011 4th Quarter Capital Budget Report. Filed Date: 2/13/12. Nathaniel J. Davis, Sr., Filed Date: 2/13/12. Accession Number: 20120213–5212. Deputy Secretary. Accession Number: 20120213–5085. Comments Due: 5 p.m. ET 3/5/12. Comments Due: 5 p.m. ET 3/5/12. [FR Doc. 2012–4185 Filed 2–22–12; 8:45 am] The filings are accessible in the BILLING CODE 6717–01–P Docket Numbers: ER12–1068–000. Commission’s eLibrary system by Applicants: PJM Interconnection, clicking on the links or querying the L.L.C. docket number. DEPARTMENT OF ENERGY Description: Second Revised Service Agreement Nos. 2960 & 2972; Amended Any person desiring to intervene or Federal Energy Regulatory ISA and ICSA to be effective 7/28/2011. protest in any of the above proceedings Commission Filed Date: 2/13/12. must file in accordance with Rules 211 and 214 of the Commission’s Combined Notice of Filings #1 Accession Number: 20120213–5090. Comments Due: 5 p.m. ET 3/5/12. Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern Take notice that the Commission Docket Numbers: ER12–1069–000. time on the specified comment date. received the following electric corporate Applicants: AEP Texas North Protests may be considered, but filings: Company. intervention is necessary to become a Docket Numbers: EC12–72–000. Description: 20120213 TNC—Blue party to the proceeding. Applicants: Gratiot County Wind LLC, Summit Wind SUA to be effective 2/9/ eFiling is encouraged. More detailed EFS Gratiot Wind, LLC. 2012. information relating to filing Description: Application for Filed Date: 2/13/12. requirements, interventions, protests, Authorization under section 203 of the Accession Number: 20120213–5123. service, and qualifying facilities filings Federal Power Act and Request for Comments Due: 5 p.m. ET 3/5/12. can be found at: http://www.ferc.gov/ Waivers and Expedited Action of Gratiot Docket Numbers: ER12–1070–000. docs-filing/efiling/filing-req.pdf. For County Wind LLC and EFS Gratiot Applicants: MidAmerican Energy other information, call (866) 208–3676 Wind, LLC. Company. (toll free). For TTY, call (202) 502–8659. Filed Date: 2/13/12. Description: LGIA between Accession Number: 20120213–5097. MidAmerican and Clipper to be Dated: February 14, 2012. Comments Due: 5 p.m. ET 3/5/12. effective 1/19/2012. Nathaniel J. Davis, Sr., Take notice that the Commission Filed Date: 2/13/12. Deputy Secretary. received the following electric rate Accession Number: 20120213–5154. [FR Doc. 2012–4184 Filed 2–22–12; 8:45 am] filings: Comments Due: 5 p.m. ET 3/5/12. BILLING CODE 6717–01–P

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DEPARTMENT OF ENERGY and 214 of the Commission’s identical filing times, will be considered Regulations (18 CFR 385.211 and to have the first-filed application. Federal Energy Regulatory 385.214) on or before 5 p.m. Eastern The drawing is open to the public and Commission time on the specified comment date. will be held in room 2C, the Protests may be considered, but Commission Meeting Room, located at Combined Notice of Filings #2 intervention is necessary to become a 888 First St. NE., Washington, DC Take notice that the Commission party to the proceeding. 20426. A subsequent notice will be received the following electric rate eFiling is encouraged. More detailed issued by the Secretary announcing the filings: information relating to filing results of the drawing. Docket Numbers: ER12–757–000. requirements, interventions, protests, Dated: February 16, 2012. Applicants: ISO New England Inc. service, and qualifying facilities filings Nathaniel J. Davis, Sr., Description: Response to Commission can be found at: http://www.ferc.gov/ Deputy Secretary. Information Request of ISO New docs-filing/efiling/filing-req.pdf. For [FR Doc. 2012–4180 Filed 2–22–12; 8:45 am] other information, call (866) 208–3676 England Inc. BILLING CODE 6717–01–P Filed Date: 2/13/12. (toll free). For TTY, call (202) 502–8659. Accession Number: 20120213–5199. Dated: February 15, 2012. Comments Due: 5 p.m. ET 2/22/12. Nathaniel J. Davis, Sr., DEPARTMENT OF ENERGY Docket Numbers: ER12–1089–001. Deputy Secretary. Applicants: ITC Midwest LLC. Federal Energy Regulatory [FR Doc. 2012–4187 Filed 2–22–12; 8:45 am] Commission Description: Amendment to ITC BILLING CODE 6717–01–P Midwest—Storm Lake Power Partners [Project No. 14298–000, Project No. 14299– Notice of Succession Filing to be 000, Project No. 14301–000] effective 4/16/2012. DEPARTMENT OF ENERGY Filed Date: 2/15/12. SV Hydro, LLC, Coffeeville, LLC, FFP Accession Number: 20120215–5034. Federal Energy Regulatory Project 99, LLC; Notice Announcing Comments Due: 5 p.m. ET 3/7/12. Commission Preliminary Permit Drawing Docket Numbers: ER12–1094–000. . Applicants: PJM Interconnection, Notice Announcing Preliminary Permit Drawing The Commission has received three L.L.C. preliminary permit applications deemed Description: Revisions to the OATT, 1 Project No. filed on October 3, 2011, at 8:30 a.m., OA & TOA re Direct Billing of TOs re for proposed projects to be located at the Late Outages to be effective 4/16/2012. FFP Project 91, LLC ...... 14275–000 U.S. Army Corps of Engineers’ Filed Date: 2/15/12. Riverbank Hydro No. 23, LLC .... 14279–000 Coffeeville Lock and Dam on the Accession Number: 20120215–5039. Lock+ Hydro Friends Fund III .... 14282–000 Tombigbee River, in Choctaw and Comments Due: 5 p.m. ET 3/7/12. Clarke counties, Alabama. The Docket Numbers: ER12–1095–000. The Commission has received three applications were filed by SV Hydro, Applicants: PJM Interconnection, preliminary permit applications deemed LLC for Project No. 14298–000, L.L.C. filed on September 1, 2011, at 8:30 Coffeeville, LLC for Project No. 14299– Description: Revisions to the OATT, a.m.,1 for proposed projects to be 000, and FFP Project 99, LLC for Project OA & TOA re Direct Billing of TOs re located at the U.S. Army Corps of No. 14301–000.2 Late Outages to be effective 4/16/2012. Engineers’ Kentucky River Lock & Dam On February 28, 2012, at 9 a.m. Filed Date: 2/15/12. No. 10 on the Kentucky River, in Clark (eastern time), the Secretary of the Accession Number: 20120215–5040. and Madison counties, Kentucky. The Commission, or her designee, will Comments Due: 5 p.m. ET 3/7/12. applications were filed by FFP Project conduct a random drawing to determine Docket Numbers: ER12–1096–000. 91, LLC for Project No. 14275–000, the filing priority of the applicants Applicants: Liberty Power Corp, LLC. Riverbank Hydro No. 23, LLC for Project identified in this notice. The Description: Notice of Cancellation of No. 14279–000, and Lock+ Hydro Commission will select among Market-Based Rate Authority. Friends Fund III for Project No. 14282– competing permit applications as Filed Date: 2/15/12. 000. provided in section 4.37 of its Accession Number: 20120215–5061. On February 28, 2012, at 9:00 a.m. regulations.3 The priority established by Comments Due: 5 p.m. ET 3/7/12. (eastern time), the Secretary of the this drawing will be used to determine Docket Numbers: ER12–1097–000. Commission, or her designee, will which applicant, among those with Applicants: Liberty Power New York conduct a random drawing to determine identical filing times, will be considered LLC. the filing priority of the applicants to have the first-filed application. Description: Liberty Power New York, identified in this notice. The The drawing is open to the public and LLC Notice of Cancellation of Market- Commission will select among will be held in room 2C, the Based Rate Authority. competing permit applications as Commission Meeting Room, located at Filed Date: 2/15/12. provided in section 4.37 of its 888 First St. NE., Washington, DC Accession Number: 20120215–5062. regulations.2 The priority established by Comments Due: 5 p.m. ET 3/7/12. this drawing will be used to determine 1 Under the Commission’s Rules of Practice and which applicant, among those with Procedure, any document received after regular The filings are accessible in the business hours is considered filed at 8:30 a.m. on Commission’s eLibrary system by the next regular business day. 18 CFR clicking on the links or querying the 1 Under the Commission’s Rules of Practice and 385.2001(a)(2) (2011). docket number. Procedure, any document received after regular 2 Lock+ Hydro Friends Fund XIV, also filed a business hours is considered filed at 8:30 a.m. on permit application to study the same site for Project Any person desiring to intervene or the next regular business day. 18 CFR No. 14302, which is deemed filed October 3, 2011, protest in any of the above proceedings 385.2001(a)(2) (2011). at 3:32 p.m. must file in accordance with Rules 211 2 18 CFR 4.37 (2011). 3 18 CFR 4.37 (2011).

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20426. A subsequent notice will be DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY issued by the Secretary announcing the results of the drawing. Federal Energy Regulatory Federal Energy Regulatory Commission Commission Dated: February 16, 2012. Nathaniel J. Davis, Sr., [Project Nos. 14262–000, 14276–000, 14280– [Project Nos. 14261–000, 14268–000, 14277– Deputy Secretary. 000] 000, 14281–000] [FR Doc. 2012–4182 Filed 2–22–12; 8:45 am] BILLING CODE 6717–01–P Lock+ Hydro Friends Fund VIII, FFP Lock+ Hydro Friends Fund XVIII, Upper Project 92, LLC, Riverbank Hydro No. Hydroelectric, LLC, FFP Project 95, 24, LLC; Notice Announcing LLC, Riverbank Hydro No. 25, LLC; DEPARTMENT OF ENERGY Preliminary Permit Drawing Notice Announcing Preliminary Permit Drawing Federal Energy Regulatory The Commission has received three Commission preliminary permit applications deemed The Commission has received four filed on September 1, 2011, at preliminary permit applications deemed [Project Nos. 14269–000; 14270–000] 8:30 a.m.,1 for proposed projects to be filed on September 1, 2011, at located at the U.S. Army Corps of 8:30 a.m.,1 for proposed projects to be Riverbank Hydro No. 22, LLC; FFP Engineers’ Kentucky River Lock and located at the U.S. Army Corps of Project 93, LLC; Notice Announcing Dam No. 11, on the Kentucky River in Engineers’ John C. Stennis Lock and Preliminary Permit Drawing Estill and Madison Counties, Kentucky. Dam on the Tennessee-Tombigbee The applications were filed by Lock+ Waterway in Lowndes County, The Commission has received two preliminary permit applications deemed Hydro Friends Fund VIII for Project No. Mississippi. The applications were filed filed on September 1, 2011, at 14262–000, FFP Project 92, LLC for by Lock+ Hydro Friends Fund XVIII for 8:30 a.m.,1 for proposed projects to be Project No. 14276–000, and Riverbank Project No. 14261–000, Upper located at the U.S. Army Corps of Hydro No. 24, LLC for Project No. Hydroelectric, LLC for Project No. Engineers’ Green River Lock and Dam 14280–000. 14268–000, FFP Project 95, LLC for No. 5, on the Green River in Butler and On February 28, 2012, at 9 a.m. Project No. 14277–000, and Riverbank Warren Counties, Kentucky. The (eastern time), the Secretary of the Hydro No. 25, LLC for Project No. applications were filed by Riverbank Commission, or her designee, will 14281–000. Hydro No. 22, LLC for Project No. conduct a random drawing to determine On February 28, 2012, at 9 a.m. 14269–000, and FFP Project 93, LLC for the filing priority of the applicants (eastern time), the Secretary of the Project No. 14270–000. identified in this notice. The Commission, or her designee, will On February 28, 2012, at 9 a.m. Commission will select among conduct a random drawing to determine (eastern time), the Secretary of the competing permit applications as the filing priority of the applicants Commission, or her designee, will provided in section 4.37 of its identified in this notice. The conduct a random drawing to determine regulations.2 The priority established by Commission will select among the filing priority of the applicants this drawing will be used to determine competing permit applications as identified in this notice. The which applicant, among those with provided in section 4.37 of its Commission will select among identical filing times, will be considered regulations.2 The priority established by competing permit applications as to have the first-filed application. this drawing will be used to determine provided in section 4.37 of its The drawing is open to the public and which applicant, among those with 2 regulations. The priority established by will be held in room 2C, the identical filing times, will be considered this drawing will be used to determine Commission Meeting Room, located at to have the first-filed application. which applicant, among those with 888 First St. NE., Washington, DC The drawing is open to the public and identical filing times, will be considered 20426. A subsequent notice will be will be held in room 2C, the to have the first-filed application. issued by the Secretary announcing the Commission Meeting Room, located at The drawing is open to the public and results of the drawing. 888 First St. NE., Washington, DC will be held in room 2C, the Dated: February 16, 2012. 20426. A subsequent notice will be Commission Meeting Room, located at issued by the Secretary announcing the Nathaniel J. Davis, Sr., 888 First St. NE., Washington, DC results of the drawing. 20426. A subsequent notice will be Deputy Secretary. Dated: February 16, 2012. issued by the Secretary announcing the [FR Doc. 2012–4190 Filed 2–22–12; 8:45 am] results of the drawing. BILLING CODE 6717–01–P Nathaniel J. Davis, Sr., Deputy Secretary. Dated: February 16, 2012. [FR Doc. 2012–4189 Filed 2–22–12; 8:45 am] Nathaniel J. Davis, Sr., BILLING CODE 6717–01–P Deputy Secretary. [FR Doc. 2012–4191 Filed 2–22–12; 8:45 am] BILLING CODE 6717–01–P

1 Under the Commission’s Rules of Practice and 1 Under the Commission’s Rules of Practice and 1 Under the Commission’s Rules of Practice and Procedure, any document received after regular Procedure, any document received after regular Procedure, any document received after regular business hours is considered filed at 8:30 a.m. on business hours is considered filed at 8:30 a.m. on business hours is considered filed at 8:30 a.m. on the next regular business day. 18 CFR the next regular business day. 18 CFR the next regular business day. 18 CFR 385.2001(a)(2) (2011). 385.2001(a)(2) (2011). 385.2001(a)(2) (2011). 2 18 CFR 4.37 (2011). 2 18 CFR 4.37 (2011). 2 18 CFR 4.37 (2011).

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DEPARTMENT OF ENERGY 888 First St. NE., Washington, DC be considered by the Commission in 20426. A subsequent notice will be reaching its decision. Parties to a Federal Energy Regulatory issued by the Secretary announcing the proceeding may seek the opportunity to Commission results of the drawing. respond to any facts or contentions [Project Nos. 14260–000, 14264–000, 14267– Dated: February 16, 2012. made in a prohibited off-the-record 000, 14273–000] Nathaniel J. Davis, Sr., communication, and may request that Deputy Secretary. the Commission place the prohibited Lock+ Hydro Friends Fund XII, BOST2, communication and responses thereto LLC, Riverbank Hydro No. 21, LLC, [FR Doc. 2012–4188 Filed 2–22–12; 8:45 am] in the decisional record. The FFP Project 96, LLC; Notice BILLING CODE 6717–01–P Commission will grant such a request Announcing Preliminary Permit only when it determines that fairness so Drawing DEPARTMENT OF ENERGY requires. Any person identified below as having made a prohibited off-the-record The Commission has received four Federal Energy Regulatory communication shall serve the preliminary permit applications deemed Commission document on all parties listed on the filed on September 1, 2011, at 8:30 1 official service list for the applicable a.m., for proposed projects to be [Docket No. RM98–1–000] proceeding in accordance with Rule located at the U.S. Army Corps of 2010, 18 CFR 385.2010. Engineers’ A.I. Selden Lock and Dam on Records Governing Off-the-Record the Black Warrior River, in Greene and Communications; Public Notice Exempt off-the-record communications are included in the Hale counties, Alabama. The This constitutes notice, in accordance applications were filed by Lock+ Hydro decisional record of the proceeding, with 18 CFR 385.2201(b), of the receipt unless the communication was with a Friends Fund XII for Project No. 14260– of prohibited and exempt off-the-record 000, BOST2, LLC for Project No. 14264– cooperating agency as described by 40 communications. CFR 1501.6, made under 18 CFR 000, Riverbank Hydro No. 21, LLC for Order No. 607 (64 FR 51222, 385.2201(e)(1)(v). Project No. 14267–000, and FFP Project September 22, 1999) requires 96, LLC for Project No. 14273–000. Commission decisional employees, who The following is a list of off-the- On February 28, 2012, at 9 a.m. make or receive a prohibited or exempt record communications recently (eastern time), the Secretary of the off-the-record communication relevant received by the Secretary of the Commission, or her designee, will to the merits of a contested proceeding, Commission. The communications conduct a random drawing to determine to deliver to the Secretary of the listed are grouped by docket numbers in the filing priority of the applicants Commission, a copy of the ascending order. These filings are identified in this notice. The communication, if written, or a available for review at the Commission Commission will select among summary of the substance of any oral in the Public Reference Room or may be competing permit applications as communication. viewed on the Commission’s Web site at provided in section 4.37 of its Prohibited communications are http://www.ferc.gov using the eLibrary regulations.2 The priority established by included in a public, non-decisional file link. Enter the docket number, this drawing will be used to determine associated with, but not a part of, the excluding the last three digits, in the which applicant, among those with decisional record of the proceeding. docket number field to access the identical filing times, will be considered Unless the Commission determines that document. For assistance, please contact to have the first-filed application. the prohibited communication and any FERC, Online Support at The drawing is open to the public and responses thereto should become a part [email protected] or toll will be held in room 2C, the of the decisional record, the prohibited free at (866) 208–3676, or for TTY, Commission Meeting Room, located at off-the-record communication will not contact (202) 502–8659.

Communication Docket No. date Presenter or requester

PROHIBITED

1. P–13226 & P–13368 ...... 1–31–12 Lori Barg. 2. CP07–444–000 ...... 2–2–12 CitizenLetter.1 3. P–12790–000 ...... 2–6–12 Karen Reddington-Hughes.

EXEMPT

1. CP11–56–000 ...... 1–26–12 Commission Staff.2 2. P–12632–000 ...... 1–27–12 Members of Congress.3 3. CP11–72–00 ...... 1–31–12 Hon. Mary L. Landrieu. 4. P–13226–003 & P–13368–002 ...... 2–1–12 Commission Staff.4 5. P–459–000 ...... 2–1–12 Hon. Blaine Luetkemeyer. 6. P–2662–000 ...... 2–3–12 Commission Staff.5 7. P–2790–055 ...... 2–6–12 Hon. Niki Tsongas. 8. CP11–56–000 ...... 2–8–12 Hon. Albio Sires. 9. CP09–444–000 ...... 2–8–12 Hon. Scott Garrett. 10. P–1267–000 ...... 2–9–12 Hon. Jim DeMint. 11. ER12–188–000 ...... 2–9–12 Hon. Al Franken. 12. P–13226–000 ...... 2–10–12 Members of Congress.6

1 Under the Commission’s Rules of Practice and the next regular business day. 18 CFR 2 18 CFR 4.37 (2011). Procedure, any document received after regular 385.2001(a)(2) (2011). business hours is considered filed at 8:30 a.m. on

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Communication Docket No. date Presenter or requester

13. CP12–29–000 ...... 2–10–12 Hon. Ron Paul. 1 A two form letters were received on February 2 & 14, 2012. 2 Email record. 3 Ten members of Congress signed this letter. 4 Telephone record. 5 Email record. 6 Three members of Congress signed this letter.

Dated: February 16, 2012. submit nominations by mail to: M. honoraria or compensation for your Nathaniel J. Davis, Sr., Frances Eargle, LGAC Designated services. However, you may receive Deputy Secretary. Federal Officer, Office of Congressional travel and per diem allowances where [FR Doc. 2012–4183 Filed 2–22–12; 8:45 am] and Intergovernmental Relations (OCIR), appropriate and according to applicable BILLING CODE 6717–01–P U.S. Environmental Protection Agency, federal travel regulations. 1200 Pennsylvania Avenue NW. Nominations: The EPA values and (MC1301A), Washington, DC 20460. welcomes diversity. In an effort to ENVIRONMENTAL PROTECTION Non-electronic submissions must follow obtain nominations of diverse AGENCY the same format and contain the same candidates, the agency encourages information. nominations of women and men of all [FRL–9636–3] FOR FURTHER INFORMATION CONTACT: M. racial and ethnic groups. All Frances Eargle, Designated Federal nominations will be fully considered, Local Government Advisory but applicants need to be aware of the Committee; Request for Nominations Officer for the LGAC, U.S. EPA; telephone (202) 564–3115; email: specific representation sought as AGENCY: Environmental Protection [email protected]. outlined in the Summary above. In addition, EPA is seeking nominees with Agency (EPA). SUPPLEMENTARY INFORMATION: The LGAC demonstrated local leadership in ACTION: Notice of request for is a federal advisory committee community sustainability and nominations. chartered under the Federal Advisory sustainable development, public health Committee Act (FACA), Public Law 92– SUMMARY: The U.S. Environmental and health disparities, air and water 463. EPA established the LGAC in 1993 Protection Agency (EPA) invites quality issues, green jobs and economic to provide independent consensus nominations from a diverse range of initiatives, energy, and environmental advice to the EPA Administrator about qualified candidates to be considered financing. for appointment to its Local a broad range of environmental issues Other criteria used to evaluate Government Advisory Committee affecting local governments. The LGAC nominees will include: (LGAC). The LGAC was chartered to conducts business in accordance with • The background and experience provide advice to the EPA the Federal Advisory Committee Act that would help members contribute to Administrator on a broad range of (FACA) (5 U.S.C. App. 2) and related the diversity of perspectives on the environmental issues affecting local regulations. committee (e.g., geographic, economic, The Committee consists of governments. This notice solicits social, cultural, educational approximately 30 members (including a nominations to fill twenty three (23) background, professional affiliations, Chairperson) appointed by EPA’s vacancies through August 2014. To and other considerations); Administrator. Members serve as non- maintain the representation outlined by • Demonstrated experience as elected federal stakeholders representing: large the charter, nominees will be selected to and/or appointed official for a local, cities, moderate-size cities; small represent: large cities; moderate-sized state or tribal government; communities and townships; county • cities; small communities and Demonstrated experience working elected officials (county commissioners, townships (under 10,000); county- with officials from other governments or councilors, county judges); county elected officials-urban, suburban and other levels of government (e.g., other appointed officials (public health rural; city elected and appointed local governments, federal agencies); directors, environmental departments); • officials (city council members, city Excellent interpersonal and state elected and appointed officials managers); state elected and appointed consensus-building skills; (state representatives, state • officials (state representatives, state Ability to volunteer time to attend environmental commissioners); tribal environmental commissioners); and meetings 2–3 times a year, participate in elected and appointed officials (chair, tribal elected and appointed officials teleconference meetings, attend president, natural resource directors). (chair, president, natural resources listening sessions with the Members are appointed for one or two directors). Vacancies are anticipated to Administrator or other senior-level EPA (1–2)-year terms, and eligible for be filled by September 2012. Sources in officials, develop policy reappointment. addition to this Federal Register Notice recommendations to the Administrator, The LGAC usually meets two or three and prepare reports and advice letters; may be utilized in the solicitation of times a year. Additionally, members nominees. and may be asked to participate in • Willingness to commit time to the DATES: Nominations should be teleconference meetings or serve on committee and demonstrated ability to submitted in time to arrive no later than Subcommittees and Work Groups to work constructively and effectively on March 26, 2012. develop recommendations, advice committees. ADDRESSES: Submit nominations letters, and reports to address specific How to Submit Nominations: Any electronically with the subject line policy issues. The average workload for interested person or organization may ‘‘LGAC Membership 2012’’ to members is approximately 5 to 8 hours nominate qualified persons to be [email protected]. You also may per month. We are unable to provide considered for appointment to this

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advisory committee. Individuals may ADDRESSES: Interested parties are All comments will become a matter of self-nominate. Nominations can be invited to submit written comments to public record. submitted in electronic format the FDIC by any of the following Dated at Washington, DC, this 16th day of (preferred) or in hard copy format (see methods: February 2012. • ADRESSESES section above) following http://www.FDIC.gov/regulations/ Federal Deposit Insurance Corporation. the template available at http:// laws/federal/notices.html. Robert E. Feldman, www.epa.gov/ocir/scas_lgac/ • Email: [email protected]. Include Executive Secretary. lgac_index.htm. To be considered, all the name of the collection in the subject nominations should include: line of the message. [FR Doc. 2012–4108 Filed 2–22–12; 8:45 am] • Current contact information for the • Mail: Leneta G. Gregorie (202–898– BILLING CODE 6714–01–P nominee, including the nominee’s 3719), Counsel, Room F–1084, Federal name, organization (and position within Deposit Insurance Corporation, 550 17th that organization), current business Street NW., Washington, DC 20429. FEDERAL ELECTION COMMISSION address, email address, and daytime • Hand Delivery: Comments may be Sunshine Act Notice telephone number; hand-delivered to the guard station at • Brief Statement describing the the rear of the 17th Street Building AGENCY: Federal Election Commission. nominee’s interest in serving on the (located on F Street), on business days DATE & TIME: Tuesday, February 28, LGAC; • between 7 a.m. and 5 p.m. 2012 at 10 a.m. Re´sume´ and a short biography (no All comments should refer to the more than 2 paragraphs) describing the PLACE: 999 E Street NW., Washington, relevant OMB control number. A copy DC. professional and educational of the comments may also be submitted STATUS: This meeting will be closed to qualifications of the nominee, including to the OMB desk officer for the FDIC: the public. a list of relevant activities, and any Office of Information and Regulatory current or previous service on advisory Affairs, Office of Management and Items To Be Discussed committees; and Budget, New Executive Office Building, • Letter[s] of recommendation from a Compliance matters pursuant to Washington, DC 20503. third party supporting the nomination. 2 U.S.C. 437g. Letter[s] should describe how the FOR FURTHER INFORMATION CONTACT: Audits conducted pursuant to 2 U.S.C. nominee’s experience and knowledge Leneta G. Gregorie, at the FDIC address 437g, § 438(b), and Title 26, U.S.C. will bring value to the work of the above. Matters concerning participation in civil LGAC. SUPPLEMENTARY INFORMATION: Proposal actions or proceedings or arbitration. Other sources, in addition to this to renew the following currently Internal personnel rules and procedures Federal Register notice, may be utilized approved collection of information: or matters affecting a particular in the solicitation of nominees. To help Title: Asset Purchaser Eligibility employee. the EPA in evaluating the effectiveness Certification. * * * * * of its outreach efforts, please tell us how OMB Number: 3064–0135. PERSON TO CONTACT FOR INFORMATION: you learned of this opportunity. Form Number: FDIC 7300/06. Judith Ingram, Press Officer. Dated: February 8, 2012. Frequency of Response: On occasion. Telephone: (202) 694–1220. Affected Public: Business or other M. Frances Eargle, Shelley E. Garr, financial institutions. Designated Federal Officer, LGAC. Estimated Number of Respondents: Deputy Secretary of the Commission. [FR Doc. 2012–4220 Filed 2–22–12; 8:45 am] 2,500. [FR Doc. 2012–4386 Filed 2–21–12; 4:15 pm] BILLING CODE 6560–50–P Estimated Time per Response: 0.5 BILLING CODE 6715–01–P hours. Total Annual Burden: 1,250 hours. FEDERAL DEPOSIT INSURANCE General Description of Collection: The FEDERAL MARITIME COMMISSION CORPORATION FDIC will use the Asset Purchaser Eligibility Certification to assure Notice of Agreements Filed Agency Information Collection compliance with statutory restrictions Activities: Proposed Collection The Commission hereby gives notice on who may purchase assets held by the Renewal; Comment Request of the filing of the following agreements FDIC. under the Shipping Act of 1984. AGENCY: Federal Deposit Insurance Request for Comment Interested parties may submit comments Corporation (FDIC). on the agreements to the Secretary, ACTION: Notice and request for comment. Comments are invited on: (a) Whether Federal Maritime Commission, the collection of information is Washington, DC 20573, within ten days SUMMARY: The FDIC, as part of its necessary for the proper performance of of the date this notice appears in the continuing effort to reduce paperwork the FDIC’s functions, including whether Federal Register. Copies of the and respondent burden, invites the the information has practical utility; (b) agreements are available through the general public and other Federal the accuracy of the estimates of the Commission’s Web site (www.fmc.gov) agencies to take this opportunity to burden of the information collection, or by contacting the Office of comment on renewal of an existing including the validity of the Agreements at (202)–523–5793 or information collection, as required by methodology and assumptions used; (c) [email protected]. the Paperwork Reduction Act of 1995 ways to enhance the quality, utility, and Agreement No.: 011353–036. (44 U.S.C. chapter 35). Currently, the clarity of the information to be Title: The Credit Agreement. FDIC is soliciting comment on renewal collected; and (d) ways to minimize the Parties: Crowley Latin America of the information collection described burden of the information collection on Services, LLC; Dole Ocean Cargo below. respondents, including through the use Express; King Ocean Services Limited; DATES: Comments must be submitted on of automated collection techniques or Seaboard Marine of Florida, Inc.; and or before April 23, 2012. other forms of information technology. Seaboard Marine Ltd.

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Filing Party: Wayne R. Rohde, Esq.; Filing Party: Candace J. Running; standards in section 4 of the BHC Act Cozen O’Conner; 1627 I Street NW., Broward County Board of County (12 U.S.C. 1843). Unless otherwise Suite 1100; Washington, DC 20006– Commissioners; Office of the County noted, nonbanking activities will be 4007. Attorney; 1850 Eller Drive, Suite 502; conducted throughout the United States. Synopsis: The amendment deletes Fort Lauderdale, FL 33316. Unless otherwise noted, comments Crowley Latin American Services, LLC Synopsis: The amendment revises regarding each of these applications and a King Ocean entity as a party to the language in the agreement regarding the must be received at the Reserve Bank Agreement. calculation of rates for containers and indicated or the offices of the Board of Agreement No.: 012155. minimum guarantee payments. Governors not later than March 20, Title: MSC/Zim South America East Agreement No.: 201212. 2012. Coast Vessel Sharing Agreement. Title: Marine Terminal Lease and A. Federal Reserve Bank of Parties: MSC Mediterranean Shipping Operating Agreement Between Broward Richmond (Adam M. Drimer, Assistant Company, S.A. and Zim Integrated County and King Ocean Services Vice President) 701 East Byrd Street, Shipping Services Ltd. Limited (Cayman Islands) Incorporated. Richmond, Virginia 23261–4528: Filing Party: Wayne R. Rohde, Parties: Broward County and King 1. CapGen Capital Group VI LP and Esquire; Cozen O’Connor; 1627 I Street Ocean Services Limited (Cayman CapGen Capital Group VI LLC, both of NW., Suite 1100; Washington, DC Islands) Incorporated. New York, New York, to increase their 20006–4007. Filing Party: Candace J. Running; investment up to 49.9 percent of the Synopsis: The agreement would Broward County Board of County voting shares of Hampton Roads authorize MSC and Zim to share vessels Commissioners; Office of the County Bankshares, Inc., Norfolk, Virginia, and in the trade between the U.S. Gulf Coast Attorney; 1850 Eller Drive, Suite 502; thereby indirectly increase their and ports in Dominican Republic, Fort Lauderdale, FL 33316. investment in Bank of Hampton Roads, Jamaica, Brazil, and Panama. It would Synopsis: The agreement provides for Norfolk, Virginia, and Shore Bank, also authorize MSC to charter space to the lease and operation of terminal Onley, Virginia. Zim in the trade between the U.S. East facilities at Port Everglades in Broward Board of Governors of the Federal Reserve Coast and ports in the Bahamas, County, Florida. Dominican Republic, Brazil, Argentina, System, February 17, 2012. and Uruguay. Dated: February 17, 2012. Robert deV. Frierson, Agreement No.: 012156. By Order of the Federal Maritime Deputy Secretary of the Board. Title: Slot Purchase Agreement Commission. [FR Doc. 2012–4179 Filed 2–22–12; 8:45 am] Between UASC and YMUK. Rachel E. Dickon, BILLING CODE 6210–01–P Parties: United Arab Shipping Co., Assistant Secretary. S.A.G. and Yang Ming (UK) Ltd. [FR Doc. 2012–4241 Filed 2–22–12; 8:45 am] Filing Party: Robert B. Yoshitomi, BILLING CODE 6730–01–P FEDERAL TRADE COMMISSION Esq., Nixon Peabody LLP, Gas Company Tower, 555 West Fifth Street 46th Floor, Agency Information Collection Los Angeles, CA 90013. FEDERAL RESERVE SYSTEM Activities; Submission for OMB Synopsis: The agreement authorizes Review; Comment Request UASC to sell and Yang Ming to Formations of, Acquisitions by, and purchase slots in the trade between Mergers of Bank Holding Companies AGENCY: Federal Trade Commission. countries in the Mediterranean Sea and ACTION: Notice and request for comment. the Atlantic Coast of the United States The companies listed in this notice and Canada. have applied to the Board for approval, SUMMARY: In compliance with the Agreement No.: 200860–005. pursuant to the Bank Holding Company Paperwork Reduction Act (PRA) of Title: Fourth Amendment to Lease Act of 1956 (12 U.S.C. 1841 et seq.) 1995, the FTC is seeking public and Operating Agreement between (BHC Act), Regulation Y (12 CFR part comments on its request to OMB for a PRPA and Dependable Distribution 225), and all other applicable statutes three-year extension of the current PRA Services Inc. for Pier 84 South. and regulations to become a bank clearance for the information collection Parties: Philadelphia Regional Port holding company and/or to acquire the requirements contained in four product Authority and Dependable Distribution assets or the ownership of, control of, or labeling rules enforced by the Services Inc. the power to vote shares of a bank or Commission. Those clearances expire Filing Party: Paul D. Coleman, Esq.; bank holding company and all of the on March 31, 2012. Hoppel, Mayer & Coleman; 1050 banks and nonbanking companies DATES: Comments must be received by Connecticut Avenue NW., Tenth Floor; owned by the bank holding company, March 26, 2012. Washington, DC 20036. including the companies listed below. ADDRESSES: Synopsis: The amendment extends The applications listed below, as well Interested parties may file a the lease for an additional renewal as other related filings required by the comment online or on paper, by period through April 30, 2018, provides Board, are available for immediate following the instructions in the for the level of Base Rent during the inspection at the Federal Reserve Bank Request for Comment part of the new period, replaces the dockage fee indicated. The application also will be SUPPLEMENTARY INFORMATION section provision, and establishes the prevailing available for inspection at the offices of below. wage on the facility. the Board of Governors. Interested FOR FURTHER INFORMATION CONTACT: Agreement No.: 201160–003. persons may express their views in Requests for additional information or Title: Marine Terminal Lease and writing on the standards enumerated in copies of the proposed information Operating Agreement Between Broward the BHC Act (12 U.S.C. 1842(c)). If the requirements should be addressed to County and Mediterranean Shipping proposal also involves the acquisition of Robert M. Frisby, 202–326–2098, or Company S.A. a nonbanking company, the review also Lemuel Dowdy, 202–326–2981, Parties: Broward County and includes whether the acquisition of the Attorneys, Division of Enforcement, Mediterranean Shipping Company S.A. nonbanking company complies with the Bureau of Consumer Protection, 600

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Pennsylvania Ave. NW., Washington, making informed purchasing decisions incur average burden of 25 hours per DC 20580. and recordkeeping requirements that firm (506,025 hours)]. SUPPLEMENTARY INFORMATION: assist the Commission in enforcing the Disclosure: 7,022,117 hours [444,360 Title: Rules and regulations under Fur Rules. hours to determine label content + Products Labeling Act (‘‘Fur Rules’’), 16 On December 12, 2011, the 111,090 hours to draft and order labels CFR part 301. Commission sought comment on the + 6,466,667 hours to attach labels]. OMB Control Number: 3084–0099. information collection requirements in Estimated annual cost burden: Type of Review: Extension of a the Wool Rules. 76 FR 77230. No $53,662,000, rounded to the nearest currently approved collection. comments were received. As required thousand (solely relating to labor costs). Abstract: The Fur Products Labeling by OMB regulations, 5 CFR Part 1320, Title: The Care Labeling of Textile Act (‘‘Fur Act’’) 1 prohibits the the FTC is providing this second Wearing Apparel and Certain Piece misbranding and false advertising of fur opportunity for public comment. Goods As Amended (‘‘Care Labeling products. The Fur Rules establish Likely Respondents: Manufacturers, Rule’’), 16 CFR 423. disclosure requirements that assist importers, processors and marketers of OMB Control Number: 3084–0103. consumers in making informed wool. products. Type of Review: Extension of a purchasing decisions, and Frequency of Response: Third party currently approved collection. recordkeeping requirements that assist disclosure; recordkeeping requirement. Abstract: The Care Labeling Rule Estimated annual hours burden: the Commission in enforcing the Rules. requires manufacturers and importers to 440,000 hours (80,000 recordkeeping The Rules also provide a procedure for attach a permanent care label to all hours + 360,000 disclosure hours). exemption from certain disclosure covered textile clothing in order to Recordkeeping: 80,000 hours [4,000 assist consumers in making purchase provisions under the Fur Act. wool firms incur an average 20 hours On December 12, 2011, the decisions and in determining what per firm (80,000 hours). method to use to clean their apparel. Commission sought comment on the Disclosure: 360,000 hours [120,000 information collection requirements in Also, manufacturers and importers of hours for determining label content + piece goods used to make textile the Fur Rules. 76 FR 77230. No 40,000 hours to draft and order labels + comments were received. As required clothing must provide the same care 200,000 hours to attach labels]. information on the end of each bolt or by OMB regulations, 5 CFR Part 1320, Estimated annual cost burden: the FTC is providing this second roll of fabric. $5,920,000 (solely relating to labor On December 12, 2011, the opportunity for public comment. costs). Likely Respondents: Manufacturers, Commission sought comment on the importers, processors and marketers of Title: Rules and regulations under the information collection requirements in fur products. Textile Fiber Products Identification Act the Care Labeling Rule. 76 FR 77230. No Frequency of Response: Third party (‘‘Textile Rules’’), 16 CFR part 303. comments were received. As required OMB Control Number: 3084–0101. disclosure; recordkeeping requirement. by OMB regulations, 5 CFR part 1320, Type of Review: Extension of a Estimated Annual Hours Burden: the FTC is providing this second currently approved collection. 168,098 hours (51,870 hours for opportunity for public comment. Abstract: The Textile Fiber Products Estimated annual hours burden: recordkeeping + 116,228 hours for Identification Act (‘‘Textile Act’’) 3 6,666,477 hours (solely relating to disclosure). prohibits the misbranding and false disclosure 4) (955,374 hours to Recordkeeping: 51,870 hours [1,230 advertising of textile fiber products. The determine care instructions + 44,436 retailers incur an average recordkeeping Textile Rules establish disclosure hours to draft and order labels + burden of about 13 hours per year requirements that assist consumers in 5,666,667 hours to attach labels). (15,990 hours total); 90 manufacturers making informed purchasing decisions, Likely Respondents: Manufacturers or incur an average recordkeeping burden and recordkeeping requirements that importers of textile apparel. of about 52 hours per year (4,680 hours assist the Commission in enforcing the Frequency of Response: Third party total); and 1,200 importers of furs and Rules. The Rules also contain a petition disclosure. fur products incur an average procedure for requesting the Estimated Annual Cost Burden: recordkeeping burden of 26 hours per establishment of generic names for $51,107,000, rounded to the nearest year (31,200 hours total)]. textile fibers. thousand (solely related to labor costs). Disclosure: 116,228 hours [(89,021 On December 12, 2011, the Request for Comment: hours for labeling + 23,517 hours for Commission sought comment on the You can file a comment online or on invoices + 3,690 hours for advertising).]. information collection requirements in paper. For the Commission to consider Estimated annual cost burden: the Textile Rules. 76 FR 77230. No your comment, we must receive it on or $2,807,000, rounded to the nearest comments were received. As required before March 26, 2012. Write ‘‘Apparel thousand (solely relating to labor costs). by OMB regulations, 5 CFR part 1320, Rules: FTC File No. P074201’’ on your Title: Rules and regulations under the the FTC is providing this second comment. Your comment—including Wool Products Labeling Act of 1939 opportunity for public comment. your name and your state—will be (‘‘Wool Rules’’), 16 CFR part 300. Likely Respondents: Manufacturers, placed on the public record of this OMB Control Number: 3084–0100. importers, processors and marketers of proceeding, including, to the extent Type of Review: Extension of a textile fiber products. practicable, on the public Commission currently approved collection. Frequency of Response: Third party Web site, at http://www.ftc.gov/os/ Abstract: The Wool Products Labeling disclosure; recordkeeping requirement. publiccomments.shtm. As a matter of Act of 1939 (‘‘Wool Act’’) 2 prohibits the Estimated annual hours burden: misbranding of wool products. The 7,528,142 hours (506,025 recordkeeping 4 The Care Labeling Rule imposes no specific Wool Rules establish disclosure hours + 7,022,117 disclosure hours). recordkeeping requirements. Although the Rule Recordkeeping: 506,025 hours requires manufacturers and importers to have requirements that assist consumers in reliable evidence to support the recommended care [Approximately 20,241 textile firms instructions, companies may provide as support 1 15 U.S.C. 69 et seq. current technical literature or rely on past 2 15 U.S.C. 68 et seq. 3 15 U.S.C. 70 et seq. experience.

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discretion, the Commission tries to paper comment to the Commission by summaries of meetings and a roster of remove individuals’ home contact courier or overnight service. committee members may be obtained from information from comments before Visit the Commission Web site at Marjorie S. Greenberg, Executive Secretary, placing them on the Commission Web http://www.ftc.gov to read this Notice. NCVHS, National Center for Health Statistics, The FTC Act and other laws that the Centers for Disease Control and Prevention, site. 3311 Toledo Road, Room 2402, Hyattsville, Because your comment will be made Commission administers permit the Maryland 20782, telephone (301) 458–4245. public, you are solely responsible for collection of public comments to Information also is available on the NCVHS making sure that your comment doesn’t consider and use in this proceeding as home page of the HHS Web site: http:// include any sensitive personal appropriate. The Commission will www.ncvhs.hhs.gov/, where further information, like anyone’s Social consider all timely and responsive information including an agenda will be Security number, date of birth, driver’s public comments that it receives on or posted when available. license number or other state before March 26, 2012. You can find Should you require reasonable identification number or foreign country more information, including routine accommodation, please contact the CDC uses permitted by the Privacy Act, in Office of Equal Employment Opportunity on equivalent, passport number, financial (301) 458–4EEO (4336) as soon as possible. account number, or credit or debit card the Commission’s privacy policy, at number. You are also solely responsible http://www.ftc.gov/ftc/privacy.shtm. Dated: February 14, 2012. for making sure that your comment Comments on the information James Scanlon, doesn’t include any sensitive health collection requirements subject to Deputy Assistant Secretary for Planning and information, like medical records or review under the PRA should also be Evaluation, Office of the Assistant Secretary other individually identifiable health submitted to OMB. If sent by U.S. mail, for Planning and Evaluation. information. In addition, don’t include address comments to: Office of [FR Doc. 2012–4118 Filed 2–22–12; 8:45 am] any ‘‘[t]rade secret or any commercial or Information and Regulatory Affairs, BILLING CODE 4151–05–P financial information which is obtained Office of Management and Budget, from any person and which is privileged Attention: Desk Officer for the Federal or confidential * * *,’’ as provided in Trade Commission, New Executive DEPARTMENT OF HEALTH AND Section 6(f) of the FTC Act, 15 U.S.C. Office Building, Docket Library, Room HUMAN SERVICES 46(f), and FTC Rule 4.10(a)(2), 16 CFR 10102, 725 17th Street, NW., Washington, DC 20503. Comments sent Agency for Healthcare Research and 4.10(a)(2). In particular, don’t include Quality competitively sensitive information to OMB by U.S. postal mail, however, are subject to delays due to heightened such as costs, sales statistics, Agency Information Collection security precautions. Thus, comments inventories, formulas, patterns, devices, Activities: Proposed Collection; instead should be sent by facsimile to manufacturing processes, or customer Comment Request names. (202) 395–5167. If you want the Commission to give Willard K. Tom, AGENCY: Agency for Healthcare Research your comment confidential treatment, General Counsel. and Quality, HHS. you must file it in paper form, with a [FR Doc. 2012–4141 Filed 2–22–12; 8:45 am] ACTION: Notice. request for confidential treatment, and BILLING CODE 6750–01–P you have to follow the procedure SUMMARY: This notice announces the explained in FTC Rule 4.9(c), 16 CFR intention of the Agency for Healthcare 4.9(c). Your comment will be kept DEPARTMENT OF HEALTH AND Research and Quality (AHRQ) to request confidential only if the FTC General HUMAN SERVICES that the Office of Management and Counsel, in his or her sole discretion, Budget (OMB) approve the proposed grants your request in accordance with National Committee on Vital and Health information collection project: the law and the public interest. Statistics: Meeting ‘‘American Recovery and Reinvestment Postal mail addressed to the Act ‘Developing a Registry of Pursuant to the Federal Advisory Commission is subject to delay due to Registries’.’’ In accordance with the Committee Act, the Department of heightened security screening. As a Paperwork Reduction Act, 44 U.S.C. Health and Human Services (HHS) result, we encourage you to submit your 3501–3521, AHRQ invites the public to announces the following advisory comments online, or to send them to the comment on this proposed information committee meeting. Commission by courier or overnight collection. service. To make sure that the Name: National Committee on Vital and Commission considers your online Health Statistics (NCVHS), Subcommittee on DATES: Comments on this notice must be comment, you must file it at https:// Population Health Meeting. received by April 23, 2012. ftcpublic.commentworks.com/ftc/ Time and Date: ADDRESSES: Written comments should apparelrulespra2, by following the March 8, 2012: 9 a.m.–5:30 p.m. EST; be submitted to: Doris Lefkowitz, instructions on the web based form. If March 9, 2012: 9 a.m.–3 p.m. EST. Reports Clearance Officer, AHRQ, by this Notice appears at http:// Place: National Center for Health Statistics, 3311 Toledo Road, Auditorium, Hyattsville, email at [email protected]. www.regulations.gov, you also may file MD 20782, Tel: 301–458–4200. Copies of the proposed collection a comment through that Web site. Status: Open. plans, data collection instruments, and If you file your comment on paper, Purpose: The purpose of this meeting is to specific details on the estimated burden write ‘‘Apparel Rules: FTC File No. gain input about the collection of can be obtained from the AHRQ Reports P074201’’ on your comment and on the socioeconomic (SES) data in federal surveys, Clearance Officer. envelope, and mail or deliver it to the including innovative uses of information. following address: Federal Trade The intention is to describe SES measures, FOR FURTHER INFORMATION CONTACT: review SES data collection in federal surveys Doris Lefkowitz, AHRQ Reports Commission, Office of the Secretary, and provide recommendations for SES data Room H–113 (Annex J), 600 Clearance Officer, (301) 427–1477, or by collection within HHS. email at [email protected]. Pennsylvania Avenue NW., Washington, Contact Person for More Information: DC 20580. If possible, submit your Substantive program information as well as SUPPLEMENTARY INFORMATION:

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Proposed Project By creating a central point of The purpose of the RoPR is to create collection for information about all a readily available public resource in American Recovery and Reinvestment patient registries in the United States, the model of ClinicalTrials.gov to share Act ‘‘Developing a Registry of the Registry of Patient Registries (RoPR) information on existing patient Registries’’ helps to further AHRQ’s goals by registries to promote collaboration, The Food and Drug Administration making information regarding quality, reduce redundancy, and improve Modernization Act of 1997, Public Law appropriateness, and effectiveness of transparency in registry research. 105–115, provided for the creation of a health services and patient registries in Patient registry research has become Clinical Trials Data Bank, known as particular) more readily available and more prevalent and, based on ClinicalTrials.gov. Since its launch in centralized. stakeholder feedback, is not adequately 2000, the ClinicalTrials.gov system has The primary goal of this project is to served by ClinicalTrials.gov at present. registered over 90,500 trials. The large engage stakeholders in the design and The information being collected in the volume of studies currently listed in development of a RoPR database system RoPR record will be visible to the public ClinicalTrials.gov and the high usage that is compatible with visiting the RoPR Web site and will be numbers suggest that the system has ClinicalTrials.gov and meets the available for public use in this capacity. following objectives: been successful at improving access to Estimated Annual Respondent Burden information about clinical studies. (1) Provides a searchable database of However, while ClinicalTrials.gov patient registries in the United States (to Exhibit 1 shows the estimated supports the listing of observational promote collaboration, reduce annualized burden for the respondents’ studies, such listing is not required. redundancy, and improve time to participate in the RoPR. Because transparency); the RoPR is a voluntary system available Patient registries are a distinct type of (2) Facilitates the use of common data to any entity conducting a patient observational study. Patient registries fields and definitions in similar health registry, it is not possible to determine may be designed for many purposes, conditions (to improve opportunities for the number of potential respondents. such as to observe the natural history of sharing, comparing, and linkage); We do know that over 3,800 newly disease, examine comparative (3) Provides a public repository of registered records designated as effectiveness, or fulfill post-approval searchable summary results (including ‘‘observational studies’’ were entered commitments. Patient registries have results from registries that have not yet into ClinicalTrials.gov in 2010. Only a specific characteristics that are not been published in the peer-reviewed subset of this number (which we will currently captured on literature); estimate at a maximum of 40%) would ClinicalTrials.gov. To date, some (4) Offers a search tool to locate qualify as patient registries and would registry sponsors have attempted to existing data that researchers can likely be registered in the RoPR. leverage the observational study model request for use in new studies; and Therefore, we use 1,520 (3,800*0.40) in to post patient registry-type records on serves as a recruitment tool for Exhibits 1 and 2 below as a very rough, ClinicalTrials.gov; however, researchers and patients interested in but high, estimation of the potential stakeholders have noted that the system participating in patient registries. number of respondents who will enter does not fully meet their needs. This study is being conducted by registries into the RoPR annually. The Patient registries have received AHRQ through its contractor, the actual number of respondents will significant attention and funding in Outcome DEcIDE Center, pursuant to depend on a variety of factors and could recent years. Similar to controlled the American Recovery and vary widely. It should be remembered interventional studies, patient registries Reinvestment Act, Public Law 111–5, that mandates could evolve making represent some burden to patients (e.g., and pursuant to AHRQ’s statutory registration in the RoPR mandatory. Our time to complete patient reported authority to conduct and support estimates therefore attempt to factor an outcome measures, risk of loss of research and disseminate information upper threshold for volume. privacy), who often participate on health care and on systems for the Each respondent will enter a new voluntarily in hopes of improving delivery of such care, including RoPR record only once and is estimated knowledge about a disease or condition. activities with respect to the quality, to take 45 minutes. An estimated 50% Patient registries also represent a effectiveness, efficiency, (760 records) of RoPR records will be substantial investment of health appropriateness and value of health care updated once a year and will take about research resources. Despite these services and with respect to database 15 minutes. This estimate is based on a factors, registration of patient registries development. 42 U.S.C. 299a(a)(1) and query of ClinicalTrials.gov which in ClinicalTrials.gov is not currently (8). showed that about 50% of observational required, presenting the potential for studies registered in ClinicalTrials.gov duplication of efforts and insufficient Method of Collection had been updated in the past year. The dissemination of findings that are not To achieve the goals of this project the total respondent burden is estimated to published in the peer-reviewed following data collections will be be 1,330 hours annually. literature. To ensure that resources are implemented: Exhibit 2 shows the estimated cost used in the most efficient manner, (1) Collect information from registry burden associated with the respondent’s registries need to be listed in a manner holders, defining a patient registry time to participate in the RoPR. The similar to that of trials in profile via a web-based interface, to total cost burden is estimated to be ClinicalTrials.gov. populate the RoPR database system. $45,579 annually.

EXHIBIT 1—ESTIMATED ANNUALIZED BURDEN HOURS

Number of Form name Number of responses per Hours per Total burden respondents respondent response hours

New RoPR Record ...... 1,520 1 45/60 1,140

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EXHIBIT 1—ESTIMATED ANNUALIZED BURDEN HOURS—Continued

Number of Form name Number of responses per Hours per Total burden respondents respondent response hours

Review/update RoPR Record ...... 760 1 15/60 190

Total ...... 2,280 na na 1,330

EXHIBIT 2—ESTIMATED ANNUALIZED COST BURDEN

Average Form name Number of Total burden hourly wage Total cost respondents hours rate † burden

New RoPR Record ...... 1,520 1,140 $34.27 $39,068 Review/update RoPR Record ...... 760 190 34.27 6,511

Total ...... 2,280 1,330 na 45,579 † Based upon the mean average wage for Healthcare Practitioners and Technical Occupations, May National Occupational Employment and Wage Estimates, U.S. Department of Labor, Bureau of Labor Statistics. Available at: http://www.bls.gov/oes/current/oes_nat.htm#29–0000.

Estimated Annual Costs to the Federal to create and maintain the RoPR for 3 Government years. The total cost is estimated to be Exhibit 3 shows the estimated total $3,184,333. and annualized cost to the government

EXHIBIT 3—ESTIMATED TOTAL AND ANNUALIZED COST

Annualized Cost component Total cost cost

Project Development ...... $2,318,509 $772,836 Project Management ...... 409,149 136,383 Overhead ...... 456,675 152,225

Total ...... 3,184,333 1,061,444

Request for Comments Dated: February 6, 2012. Prophylaxis of Venous In accordance with the Paperwork Carolyn M. Clancy, Thromboembolism Among Special Reduction Act, comments on AHRQ’s Director. Populations Review, which is currently information collection are requested [FR Doc. 2012–3911 Filed 2–22–12; 8:45 am] being conducted by the Evidence-based with regard to any of the following: (a) BILLING CODE 4160–90–M Practice Centers for the AHRQ Effective Whether the proposed collection of Health Care Program. Access to information is necessary for the proper published and unpublished pertinent performance of AHRQ healthcare DEPARTMENT OF HEALTH AND scientific information on this device research and healthcare information HUMAN SERVICES will improve the quality of this dissemination functions, including comparative effectiveness review. whether the information will have Agency for Healthcare Research and AHRQ is requesting this scientific practical utility; (b) the accuracy of Quality information and conducting this comparative effectiveness review AHRQ’s estimate of burden (including Scientific Information Request on hours and costs) of the proposed pursuant to Section 1013 of the Mechanical Prophylaxis of Venous Medicare Prescription Drug, collection(s) of information; (c) ways to Thromboembolism (VTE) enhance the quality, utility, and clarity Improvement, and Modernization Act of of the information to be collected; and AGENCY: Agency for Healthcare Research 2003, Public Law 108–173. (d) ways to minimize the burden of the and Quality (AHRQ), HHS. DATES: Submission Deadline on or collection of information upon the ACTION: Request for Scientific before March 26, 2012. respondents, including the use of Information Submissions. ADDRESSES: Online submissions: http:// automated collection techniques or effectivehealthcare.AHRQ.gov/index. other forms of information technology. SUMMARY: The Agency for Healthcare cfm/submitscientific-information- Comments submitted in response to Research and Quality (AHRQ) is seeking packets/. Please select the study for this notice will be summarized and scientific information submissions from which you are submitting information included in the Agency’s subsequent manufacturers of antithrombotic from the list of current studies and request for OMB approval of the medical devices. Scientific information complete the form to upload your proposed information collection. All is being solicited to inform our documents. comments will become a matter of Comparative Effectiveness of Email submissions: [email protected] public record. Pharmacologic and Mechanical (please do not send zipped files—they

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are automatically deleted for security instructions, inclusion and exclusion Question 5 reasons). criteria, primary and secondary What is the comparative effectiveness Print submissions: Robin Paynter, outcomes, baseline characteristics, and safety of pharmacologic and Oregon Health and Science University, number of patients screened/eligible/ mechanical strategies to prevent VIE in Oregon Evidence-based Practice Center, enrolled/lost to withdrawn/follow-up/ hospitalized patients receiving 3181 SW Sam Jackson Park Road, Mail analyzed, and effectiveness/efficacy and antiplatelet therapy? Code: BICC, Portland, OR 97239–3098. safety results. FOR FURTHER INFORMATION CONTACT: • Registered ClinicalTrials.gov Question 6 Robin Paynter, Research Librarian, studies. Please provide a list including What is the comparative effectiveness Telephone: 503–494–0147 or Email: the ClinicalTrials.gov identifier, and safety of pharmacologic and [email protected]. condition, and intervention. mechanical strategies to prevent VTE in Your contribution is very beneficial to patients having bariatric surgery? SUPPLEMENTARY INFORMATION: In this program. AHRQ is not requesting accordance with Section 1013 of the and will not consider marketing Question 7 Medicare Prescription Drug, material, health economics information, What is the comparative effectiveness Improvement, and Modernization Act of or information on other indications. and safety of pharmacologic prophylaxis 2003, Public Law 108–173, the Agency This is a voluntary request for for prevention of VTE during for Healthcare Research and Quality has information, and all costs for complying hospitalization of obese and commissioned the Effective Health Care with this request must be borne by the underweight patients? (EHC) Program Evidence-based Practice submitter. Question 8 Centers to complete a comparative In addition to your scientific effectiveness review of the evidence for information please submit an index What is the comparative effectiveness pharmacologic and mechanical document outlining the relevant and safety of pharmacologic prophylaxis prophylaxis of venous information in each file along with a for prevention of VTE during thromboembolism (VTE) among special statement regarding whether or not the hospitalization of patients with acute populations. submission comprises all of the kidney injury, moderate renal The EHC Program is dedicated to complete information available. impairment, or severe renal impairment identifying as many studies as possible not undergoing dialysis and patients Please Note: The contents of all that are relevant to the questions for receiving dialysis? each of its reviews. In order to do so, we submissions, regardless of format, will be available to the public upon request unless Dated: February 7, 2012. are supplementing the usual manual prohibited by law. Carolyn M. Clancy, and electronic database searches of the The draft of this review will be posted on Director, AHRQ. literature by systematically requesting AHRQ’s EHC program Web site and available information (e.g., details of studies for public comment for a period of 4 weeks. [FR Doc. 2012–3937 Filed 2–21–12; 8:45 am] conducted) from medical device If you would like to be notified when the BILLING CODE 4160–90–M industry stakeholders through public draft is posted, please sign up for the email information requests, including via the list at: http://effectivehealthcare.AHRQ.gov/ DEPARTMENT OF HEALTH AND Federal Register and direct postal and/ index.cfm/join-the-email-list1/. HUMAN SERVICES or online solicitations. We are looking The Key Questions for studies that report on mechanical Centers for Disease Control and prophylaxis of venous Question 1 Prevention thromboembolism among special What is the comparative effectiveness [30-Day—12–0213] populations, including those that and safety of Inferior Vena Cava filters describe adverse events, as specified in to prevent Pulmonary Emboli in Agency Forms Undergoing Paperwork the key questions detailed below. The hospitalized patients with trauma? Reduction Act Review entire research protocol, including the key questions, is also available online Question 2 The Centers for Disease Control and at: http://effectivehealthcare.ahrq.gov/ 1. What is the comparative Prevention (CDC) publishes a list of index.cfm/search-for-guides-reviews- effectiveness and safety of information collection requests under andreports/?pageaction=display pharmacologic and mechanical review by the Office of Management and product&productid=928#4370. strategies to prevent VTE in hospitalized Budget (OMB) in compliance with the This notice is a request for industry patients with traumatic brain injury? requirement of Section 3506(c)(2)(A) of stakeholders to submit the following: 2. What is the optimal timing of the Paperwork Reduction Act of 1995. • A current product label, if initiation and duration of To request a copy of these requests, call applicable (preferably an electronic PDF pharmacologic prophylaxis to prevent the CDC Reports Clearance Officer at file). VTE in hospitalized patients with (404) 639–7570 or send an email to • Information identifying published traumatic brain injury? [email protected]. Send written comments randomized controlled trials and to CDC Desk Officer, Office of observational studies relevant to the Question 3 Management and Budget, Washington, clinical outcomes. Please provide both a What is the comparative effectiveness DC or by fax to (202) 395–6974. Written list of citations and reprints if possible. and safety of pharmacologic and comments should be received within 30 • Information identifying mechanical strategies to prevent VTE in days of this notice. unpublished randomized controlled hospitalized patients with burns? trials and observational studies relevant Proposed Project to the clinical outcomes. If possible, Question 4 National Vital Statistics Report Forms please provide a summary that includes What is the comparative effectiveness (0920–0213, Expiration 04/30/2012)— the following elements: study number, and safety of pharmacologic and Extension—National Center for Health study period, design, methodology, mechanical strategies to prevent VTE in Statistics (NCHS), Centers for Disease indication and diagnosis, proper use hospitalized patients with liver disease? Control and Prevention (CDC).

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Background and Brief Description respondents are the registration officials that they represent complete counts of in the 50 States, the District of marriages, divorces, and annulments The compilation of national vital Columbia, New York City, Puerto Rico, occurring during the months of the prior statistics dates back to the beginning of Virgin Islands, Guam, American Samoa, year. These final counts are usually the 20th century and has been and the Commonwealth of the Northern available from State or county officials conducted since 1960 by the Division of Mariana Islands. In addition, 33 local about eight months after the end of the Vital Statistics of the National Center for (county) officials in New Mexico who Health Statistics, CDC. The collection of data year. The data are widely used by record marriages occurring and divorces government, academic, private research, the data is authorized by 42 U.S.C. 242k. and annulments granted in each county This submission requests approval to and commercial organizations in of New Mexico will use this form. This tracking changes in trends of family collect the monthly and annually form, which takes about 10 minutes to summary statistics for three years. formation and dissolution. The 58 complete, is designed to collect counts Respondents for the Annual Vital The Monthly Vital Statistics Report of monthly occurrences of births, Statistics Occurrence Report Form, forms provide counts of monthly deaths, infant deaths, marriages, and which takes about 30 minutes to occurrences of births, deaths, infant divorces immediately following the deaths, marriages, and divorces. Similar complete, are registration officials in month of occurrence. each State and Territory, the District of data have been published since 1937 The Annual Vital Statistics and are the sole source of these data at Occurrence Report Form collects final Columbia, and New York City. the National level. The data are used by annual counts of marriages and divorces There are no costs to respondents the Department of Health and Human by month for the United States and for other than their time to participate; the Services and by other government, each State. The statistical counts data are routinely available in each academic, and private research and requested on this form differ from reporting office as a by-product of commercial organizations in tracking provisional estimates obtained on the ongoing activities. The total estimated changes in trends of vital events. The Monthly Vital Statistics Report Form in annualized burden hours are 211.

TABLE 1—ESTIMATED ANNUALIZED BURDEN HOURS

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

State, Territory and New Mexico County offi- Monthly Vital Statistics Report ...... 91 12 10/60 cials. State, Territory and Other officials ...... Annual Vital Statistics Occurrence Report ..... 58 1 30/60

Kimberly S. Lane, Road, MS–D74, Atlanta, GA 30333 or genetic diseases in Atlanta since 1967 Reports Clearance Officer, Centers for Disease send an email to [email protected]. through the Metropolitan Atlanta Control and Prevention. Comments are invited on: (a) Whether Congenital Defects Program (MACDP). [FR Doc. 2012–4173 Filed 2–22–12; 8:45 am] the proposed collection of information The MACDP is a population-based BILLING CODE 4163–18–P is necessary for the proper performance surveillance system for birth defects in of the functions of the agency, including the 5 counties of Metropolitan Atlanta. whether the information shall have Its primary purpose is to describe the DEPARTMENT OF HEALTH AND practical utility; (b) the accuracy of the spatial and temporal patterns of birth HUMAN SERVICES agency’s estimate of the burden of the defects occurrence and serves as an proposed collection of information; (c) early warning system for new Centers for Disease Control and ways to enhance the quality, utility, and Teratogens. Prevention clarity of the information to be The National Birth Defects Prevention collected; and (d) ways to minimize the Study (NBDPS) formerly the Birth [60 Day-12–0010] burden of the collection of information Defects Risk Factor Surveillance Study on respondents, including through the (BDRFS) began in 1997. The NBDPS is Proposed Data Collections Submitted use of automated collection techniques a case-control study of major birth for Public Comment and or other forms of information defects that includes cases identified Recommendations technology. Written comments should be received within 60 days of this from existing birth defect surveillance In compliance with the requirement notice. registries in nine states, including of Section 3506(c)(2)(A) of the metropolitan Atlanta. NBDPS control Paperwork Reduction Act of 1995 for Proposed Project infants are randomly selected from birth opportunity for public comment on The National Birth Defects Prevention certificates or birth hospital records. proposed data collection projects, the Study (NBDPS), (OMB 0920–0010)— Mothers of case and control infants are Centers for Disease Control and Reinstatement Without Change— interviewed using a computer-assisted Prevention (CDC) will publish periodic National Center on Birth Defects and telephone interview. The interview summaries of proposed projects. To Developmental Disabilities (NCBDDD), takes approximately one hour to request more information on the Centers for Disease Control and complete. A maximum of four hundred proposed projects or to obtain a copy of Prevention (CDC). interviews are planned per year per the data collection plans and center, 300 cases and 100 controls instruments, call 404–639–7570 and Background and Brief Description resulting in a maximum interview send comments to Kimberly Lane, CDC CDC has been monitoring the burden of 400 hours for each of the Reports Clearance Officer, 1600 Clifton occurrence of serious birth defects and centers each year.

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Parents are also asked to collect cheek account for reading and understanding environmental factors as well as gene- cells from themselves and their infant the consent form and specimen environment interactions for a broad for DNA. The collection of cheek cells collection instructions and mailing back range of carefully classified birth by the mother, father, and infant takes the completed kits. The anticipated defects. about 10 minutes per person. Each maximum burden for collection of the This request is submitted to obtain person rubs 1 brush inside the left cheek cheek cells is 200 hours per center per OMB clearance for three additional and 1 brush inside the right cheek for year. a total of 2 brushes per person. Information gathered from both the years. Collection of the cheek cells takes interviews and the DNA specimens have There are no costs to the respondents approximately 1–2 minutes, but the been and will continue to be used to other than their time. estimate of burden is 10 minutes to study independent genetic and

ESTIMATED ANNUALIZED BURDEN HOURS PER CENTER

Number of Average Respondents Number of responses per burden per re- Total burden respondents respondent sponse hours

NBDPS case/control interview ...... 400 1 1 400 Biologic Specimen Collection ...... 1,200 1 10/60 200

Total ...... 600

Kimberly S. Lane, Title: Performance Measurement On- Grantees will submit this information Acting Reports Clearance Officer. Line Tool (PMOTOOL). on a semi-annual basis in conjunction [FR Doc. 2012–4170 Filed 2–22–12; 8:45 am] OMB No.: New Collection. with their semi-annual program Description: The Performance BILLING CODE 4163–18–P progress report. Measurement On-Line Tool The purpose of this data collection is (PMOTOOL) was designed by the Children’s Bureau to collect data, in an to assist the Children’s Bureau in using DEPARTMENT OF HEALTH AND the aggregated data to examine the HUMAN SERVICES automated format, from specified discretionary grants funded by the social impact or public benefit under each funded federal program. These Administration for Children and Children’s Bureau. The data collected measurable outcomes will serve as Families by this instrument will be submitted by individual discretionary grantees evidence that the federally funded Proposed Information Collection funded under the following programs: programs are making progress toward Activity; Comment Request Abandoned Infants Assistance Program, achieving broad, legislated program Infant Adoption Awareness Program, goals. Proposed Projects: Data Collection for Adoption Opportunities Program, Child Respondents: Selected clusters of some of the Children’s Bureau Funded Abuse and Neglect Program and the competitive grant programs funded by Discretionary Programs. Child Welfare Training Program. the Children’s Bureau.

ANNUAL BURDEN ESTIMATES

Number of responses per Average burden hours per Total burden Instrument Number of respondents respondent response hours

Performance Measurement Abandoned Infants Assistance 2 per fiscal year ...... One hour per response field .. Range 40–60 On-Line Tool. Program Range 20–30. Performance Measurement Infant Adoption Awareness 2 per fiscal year ...... One hour per response field .. Range 12 On-Line Tool. Program Range 6. Performance Measurement Adoption Opportunities Pro- 2 per fiscal year ...... One hour per response field .. Range 90– On-Line Tool. gram Range 45–55. 110 Performance Measurement Child Abuse and Neglect Pro- 2 per fiscal year ...... One hour per response field .. Range 60–80 On-Line Tool. gram Range 30–40. Performance Measurement Child Welfare Training Pro- 2 per fiscal year ...... One hour per response field .. Range 80– On-Line Tool. gram Range 40–50. 100

Estimated Total Annual Burden comments may be forwarded by writing The Department specifically requests Hours: 282–350. to the Administration for Children and comments on: (a) Whether the proposed In compliance with the requirements Families, Office of Planning, Research collection of information is necessary of Section 506(c)(2)(A) of the Paperwork and Evaluation, 370 L’Enfant for the proper performance of the Reduction Act of 1995, the Promenade SW., Washington, DC 20447, functions of the agency, including Administration for Children and Attn: ACF Reports Clearance Officer. whether the information shall have Families is soliciting public comment Email address: practical utility; (b) the accuracy of the on the specific aspects of the [email protected]. All requests agency’s estimate of the burden of the information collection described above. should be identified by the title of the proposed collection of information; (c) Copies of the proposed collection of information collection. the quality, utility, and clarity of the information can be obtained and information to be collected; and (d)

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ways to minimize the burden of the Description: The U.S. Department of API-funded IDAs, and few have tested collection of information on Health and Human Services, alternative design features. respondents, including through the use Administration for Children and This evaluation—the first of automated collection techniques or Families (ACF) is proposing a data experimental evaluation of IDA projects other forms of information technology. collection activity as part of an operating under the Assets for Consideration will be given to experimental evaluation of the Assets Independence Act—will contribute comments and suggestions submitted for Independence (AFI) Program. The importantly to understanding the effects within 60 days of this publication. purpose of this study is to assess the of IDA project participation on project impact of participation in AFI-funded participants, particularly effects that Robert Sargis, individual development account (IDA) occur within the first 12 months of Reports Clearance Officer. projects on the savings, asset purchases, participation, and how these short-term [FR Doc. 2012–4143 Filed 2–22–12; 8:45 am] and economic well-being of low-income effects differ under alternative project BILLING CODE 4184–01–P individuals and families. The two designs. The evaluation will be primary research questions are: conducted in two sites, with the random • What is the impact of AFI project assignment of API-eligible cases to DEPARTMENT OF HEALTH AND program and control groups. The HUMAN SERVICES participation on short-term outcomes such as savings, asset purchases, and evaluation consists of both an impact Administration for Children and material hardship? study and an implementation study. Data collection activities will span a Families • How do specific API project design three-year period. features affect short-term participant Proposed Information Collection Respondents: Respondent groups will outcomes? Activity; Comment Request include: (1) API-eligible participants While some evaluations suggest that and (2) API project administrators and Title: Assets for Independence (AFI) IDAs help low-income families save, staff members of the participating API Program Evaluation. rigorous experimental research is grantees and their partnering OMB No.: New Collection. limited. Few studies have focused on organizations.

ANNUAL RESPONSE BURDEN ESTIMATES

Number of Average Instrument Number of responses per burden hours Estimated respondents respondent per response burden hours

Baseline survey: AFI-eligible participants ...... 567 1 .50 284 Follow-up survey: AFI-eligible participants ...... 482 1 .50 241 Implementation interview: Administrators and staff ...... 10 1 1.00 10

Estimated Annual Response Burden the quality, utility, and clarity of the DEPARTMENT OF HEALTH AND Hours: 535. information to be collected; and (d) HUMAN SERVICES In compliance with the requirement ways to minimize the burden of the of section 3506(c)(2)(A) of the collection of information on Food and Drug Administration Paperwork Reduction Act of 1995, the respondents, including through the use [Docket No. FDA–2012–N–0129] Administration for Children and of automated collection techniques or Families (ACF), Department of Health other forms of information technology. Agency Information Collection and Human Services, is soliciting public Consideration will be given to Activities; Proposed Collection; comment on the specific aspects of the comments and suggestions submitted Comment Request; General Licensing information collection described above. within 60 days of this publication. Provisions; Section 351(k) Biosimilar Copies of the proposed collection of Applications; Correction information can be obtained and Dated: February 14, 2012. comments may be forwarded in writing Steven M. Hanmer, AGENCY: Food and Drug Administration, to the Administration for Children and Office of Planning Research and Evaluation; HHS. Families, Office of Planning, Research ACF, Reports Clearance Officer. ACTION: Notice; correction. and Evaluation, 370 L’Enfant [FR Doc. 2012–3946 Filed 2–22–12; 8:45 am] SUMMARY: The Food and Drug Promenade SW., Washington, DC 20447, BILLING CODE 4184–24–M Attn: OPRE Reports Clearance Officer. Administration (FDA) is correcting a Email address: notice that appeared in the Federal [email protected]. All Register of February 15, 2012 (77 FR requests should be identified by the title 8880). The document announced an of the information collection. opportunity for public comment on the The Department specifically requests proposed collection of certain comments on: (a) Whether the proposed information by the Agency. The collection of information is necessary document was published with an for the proper performance of the incorrect docket number. This functions of the agency, including document corrects that error. whether the information shall have FOR FURTHER INFORMATION CONTACT: practical utility; (b) the accuracy of the Joyce Strong, Office of Policy, Food and agency’s estimate of the burden of the Drug Administration, 10903 New proposed collection of information; (c) Hampshire Ave., Bldg. 32, rm. 3208,

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Silver Spring, MD 20993–0002, 301– INFORMATION section for electronic affected in a similar manner, will cause 796–9148. access to the draft guidance document. serious adverse health consequences or SUPPLEMENTARY INFORMATION: In FR Doc. Submit electronic comments on the death to humans or animals. 2012–3548, appearing on page 8880, in draft guidance to http:// Furthermore, FSMA revised section the Federal Register of Wednesday, www.regulations.gov. Submit written 704(a)(1)(B), which pertains to factory February 15, 2012, the following comments on the guidance to the inspections, to refer to the amended correction is made: Division of Dockets Management (HFA– version of section 414(a). On page 8880, in the second column, 305), Food and Drug Administration, This updated draft guidance is in the Docket No. heading, ‘‘[Docket No. 5630 Fishers Lane, rm. 1061, Rockville, intended to provide individuals in the FDA–2012–N–1029]’’ is corrected to MD 20852. human and animal food industries with read ‘‘[Docket No. FDA–2012–N–0129]’’. FOR FURTHER INFORMATION CONTACT: an overview of FDA’s authority to Dated: February 16, 2012. William A. Correll, Jr., Center for Food access and copy records. It provides Leslie Kux, Safety and Applied Nutrition, Food and practical information by answering Acting Assistant Commissioner for Policy. Drug Administration, 5100 Paint Branch common questions that cover a range of Pkwy., College Park, MD 20740, 240– [FR Doc. 2012–4168 Filed 2–22–12; 8:45 am] topics, including when FDA has the 402–1611. BILLING CODE 4160–01–P authority to access and copy records, SUPPLEMENTARY INFORMATION: the circumstances under which FDA is I. Background likely to request records, the types of DEPARTMENT OF HEALTH AND records FDA may request and copy, and HUMAN SERVICES FDA is announcing the availability of the consequences of refusing to provide a draft guidance for industry entitled records access. The Agency has adopted Food and Drug Administration ‘‘FDA Records Access Authority Under good guidance practices (GGPs) that set Sections 414 and 704 of the Federal [Docket No. FDA–2011–D–0674] forth the Agency’s policies and Food, Drug, & Cosmetic Act.’’ The draft procedures for the development, Draft Guidance for Industry: Food and guidance is intended for persons who issuance, and use of guidance Drug Administration Records Access manufacture, process, pack, hold, or documents (21 CFR 10.115). This draft Authority Under the Federal Food, import human or animal foods intended guidance is being issued as level 1 Drug, and Cosmetic Act; Availability for distribution to consumers, guidance consistent with GGPs. institutions, or food processors. This AGENCY: Food and Drug Administration, draft guidance provides updated The draft guidance, when finalized, HHS. information pertaining to FDA’s will represent the Agency’s current ACTION: Notice. authority to access and copy records thinking on its authority to access and relating to food under sections 414(a) copy records. It does not create or confer SUMMARY: The Food and Drug and 704(a)(1)(B) of the Federal Food, any rights for or on any person and does Administration (FDA) is announcing the Drug, and Cosmetic Act (the FD&C Act) not operate to bind FDA or the public. availability of a draft guidance for (21 U.S.C. 350c(a) and 21 U.S.C. An alternate approach may be used if industry entitled ‘‘FDA Records Access 374(a)(1)(B), respectively), as amended such approach satisfies the Authority Under Sections 414 and 704 by section 101 of the FDA Food Safety requirements of the applicable statutes of the Federal Food, Drug, & Cosmetic and Modernization Act (FSMA) (Pub. L. and regulations. Act.’’ This draft guidance provides 111–353) of January 4, 2011. II. Paperwork Reduction Act of 1995 updated information pertaining to Section 414 was originally added to FDA’s authority to access and copy the FD&C Act by the Public Health This draft guidance refers to records relating to food. It is a revision Security and Bioterrorism Preparedness information collection provisions found of FDA’s November 2005 guidance and Response Act of 2002 (Pub. L. 107– in FDA regulations. These collections of entitled ‘‘Guidance for Industry and 188). FSMA, signed into law on January information are subject to review by the FDA Staff: Guidance for Records Access 4, 2011, expanded FDA’s access to Office of Management and Budget Authority Provided in Title III, Subtitle records under section 414. Prior to the (OMB) under the Paperwork Reduction A, of the Public Health Security and passage of FSMA, section 414(a) of the Act of 1995 (44 U.S.C. 3501–3520). We Bioterrorism Preparedness and FD&C Act provided the Secretary (by conclude that these information Response Act of 2002; Final Guidance.’’ delegation FDA) with authority to collection provisions are exempt from DATES: Although you can comment on access records relating to food that was OMB review under 44 U.S.C. any guidance at any time (see 21 CFR reasonably believed to be adulterated 3518(c)(1)(B)(ii) and 5 CFR 1320.4(a)(2) 10.115(g)(5)), to ensure that the Agency and to present a threat of serious as collections of information obtained considers your comment on this draft adverse health consequences or death to during the conduct of a civil action to guidance before it begins work on the humans or animals. Now under section which the United States or any official final version of the guidance, submit 414(a)(1), as amended by FSMA, FDA’s or Agency thereof is a party, or during either electronic or written comments records access extends beyond records the conduct of an administrative action, on the draft guidance by May 23, 2012. relating to the specific suspect article of investigation, or audit involving an ADDRESSES: Submit written requests for food to records relating to any other Agency against specific individuals or single copies of the draft guidance to the article of food that FDA reasonably entities. The regulations in 5 CFR Outreach and Information Center (HFS– believes is likely to be affected in a 1320.3(c) provide that the exception in 009), Center for Food Safety and similar manner. In addition, under 5 CFR 1320.4(a)(2) applies during the Applied Nutrition (HFS–317), Food and section 414(a)(2), FDA can access entire course of the investigation, audit Drug Administration, 5100 Paint Branch records if it believes that there is a or action, but only after a case file or Pkwy., College Park, MD 20740. Send reasonable probability that the use of or equivalent is opened with respect to a one self-addressed adhesive label to exposure to an article of food, and any particular party. Such a case file would assist that office in processing your other article of food that FDA be opened as part of the request to request. See the SUPPLEMENTARY reasonably believes is likely to be access records.

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III. Comments 240), Center for Drug Evaluation and pharmaceutical products among three Interested persons may submit to the Research, Food and Drug regions: The European Union, Japan, Division of Dockets Management (see Administration, 10903 New Hampshire and the United States. The six ICH ADDRESSES) either electronic or written Ave., Bldg. 51, rm. 2201, Silver Spring, sponsors are the European Commission; comments regarding this document. It is MD 20993–0002, or the Office of the European Federation of only necessary to send one set of Communication, Outreach and Pharmaceutical Industries Associations; comments. Identify comments with the Development (HFM–40), Center for the Japanese Ministry of Health, Labour, docket number found in brackets in the Biologics Evaluation and Research and Welfare; the Japanese heading of this document. Received (CBER), Food and Drug Administration, Pharmaceutical Manufacturers comments may be seen in the Division 1401 Rockville Pike, Rockville, MD Association; the Centers for Drug of Dockets Management between 9 a.m. 20852–1448. Send one self-addressed Evaluation and Research and Biologics and 4 p.m., Monday through Friday. adhesive label to assist the office in Evaluation and Research, FDA; and the processing your requests. The draft Pharmaceutical Research and IV. Electronic Access recommendation may also be obtained Manufacturers of America. The ICH Persons with access to the Internet by mail by calling CBER at 1–800–835– Secretariat, which coordinates the may obtain the guidance at either 4709 or 301–827–1800. See the preparation of documentation, is http://www.fda.gov/FoodGuidances or SUPPLEMENTARY INFORMATION section for provided by the International http://www.regulations.gov. Always electronic access to the draft Federation of Pharmaceutical access an FDA guidance document by recommendation. Manufacturers Associations (IFPMA). using the Web sites listed previously to Submit electronic comments on the The ICH Steering Committee includes find the most current version of the recommendation to http:// representatives from each of the ICH guidance. www.regulations.gov. Submit written sponsors and the IFPMA, as well as comments to the Division of Dockets observers from the World Health Dated: February 17, 2012. Management (HFA–305), Food and Drug Organization, Health Canada, and the Leslie Kux, Administration, 5630 Fishers Lane, rm. European Free Trade Area. Acting Assistant Commissioner for Policy. 1061, Rockville, MD 20852. In 1999, ICH instituted a Q3C [FR Doc. 2012–4166 Filed 2–22–12; 8:45 am] FOR FURTHER INFORMATION CONTACT: maintenance agreement and formed a BILLING CODE 4160–01–P maintenance Expert Working Group Regarding the Q3C Guidance (Q3C EWG). The agreement provided for David Jacobson-Kram, Center for Drug the reconsideration of solvent PDEs and DEPARTMENT OF HEALTH AND Evaluation and Research, Food and allowed for minor changes to the tables HUMAN SERVICES Drug Administration, 10903 New and list that include the existing PDEs. Hampshire Ave., Bldg. 22, rm. 6488, The agreement also provided that new Food and Drug Administration Silver Spring, MD 20993, 301–796– solvents and PDEs could be added to the [Docket No. FDA–2010–N–0327] 0175. tables and list based on adequate toxicity data. In the Federal Register of Regarding the ICH International Conference on February 12, 2002 (67 FR 6542), FDA Harmonisation; Final Recommendation Michelle Limoli, Office of briefly described the process for for the Revision of the Permitted Daily International Programs, Food and Drug proposing future revisions to the PDEs. Exposure for the Solvent Cumene Administration, 10903 New Hampshire In the same notice, the Agency According to the Maintenance Ave., Bldg. 32, rm. 3506, Silver Spring, announced its decision to delink the Procedures for the Guidance Q3C MD 20993–0002, 301–796–4600. tables and list from the Q3C guidance Impurities: Residual Solvents; SUPPLEMENTARY INFORMATION: and create a stand alone document Availability I. Background entitled ‘‘Q3C—Tables and List’’ to facilitate making changes recommended AGENCY: Food and Drug Administration, In recent years, many important by ICH. HHS. initiatives have been undertaken by ACTION: Notice. regulatory authorities and industry II. Revised PDE for Cumene associations to promote international In the Federal Register of July 20, SUMMARY: The Food and Drug harmonization of regulatory 2010 (75 FR 42098), FDA published a Administration (FDA) is announcing the requirements. FDA has participated in notice announcing the availability of a availability of a final recommendation many meetings designed to enhance draft recommendation for the revision of for the revision of the permitted daily harmonization and is committed to the PDE for cumene according to the exposure (PDE) for the solvent cumene seeking scientifically based harmonized ICH maintenance procedures. The according to the maintenance technical procedures for pharmaceutical notice gave interested persons an procedures for the guidance for industry development. One of the goals of opportunity to submit comments by entitled ‘‘Q3C Impurities: Residual harmonization is to identify and then September 20, 2010. Solvents.’’ The recommendation was reduce differences in technical After consideration of the comments prepared under the auspices of the requirements for drug development received and revisions to the guidance, International Conference on among regulatory Agencies. a final draft of the recommendation was Harmonisation of Technical ICH was organized to provide an submitted to the ICH Steering Requirements for Registration of opportunity for tripartite harmonization Committee and endorsed by the three Pharmaceuticals for Human Use (ICH). initiatives to be developed with input participating regulatory Agencies in DATES: Submit either electronic or from both regulatory and industry February 2011. written comments on Agency guidances representatives. FDA also seeks input The final recommendation addresses at any time. from consumer representatives and the safety classification of cumene. ADDRESSES: Submit written requests for others. ICH is concerned with When the Q3C guidance was published single copies of the recommendation to harmonization of technical in 1997 (62 FR 67377, December 24, the Division of Drug Information (HFD– requirements for the registration of 1997), cumene was listed as a class 3

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solvent (i.e., a solvent with low tables and list are available at http:// Information about becoming a toxicity). The Q3C EWG reviewed new www.fda.gov/Drugs/Guidance member on an FDA advisory committee toxicity data derived from a ComplianceRegulatoryInformation/ can also be obtained by visiting FDA’s carcinogenicity study performed by the Guidances/ucm125820.htm. Web site by using the following link: National Toxicology Program. The new Dated: February 16, 2012. http://www.fda.gov/ data suggest a positive systemic AdvisoryCommittees/default.htm. Leslie Kux, carcinogenic effect, and this observation SUPPLEMENTARY INFORMATION: FDA is Acting Assistant Commissioner for Policy. raises the toxicity associated with this requesting nomination for voting solvent. The final recommendation is [FR Doc. 2012–4164 Filed 2–22–12; 8:45 am] members on the Risk Communication that cumene be placed into class 2. A BILLING CODE 4160–01–P Advisory Committee. PDE of 0.7 milligrams per day and a concentration limit of 70 parts per I. General Description of the Committee million are being declared for this DEPARTMENT OF HEALTH AND Duties solvent. The analysis and HUMAN SERVICES The Risk Communication Advisory Committee advises the Commissioner of recommendation are available for Food and Drug Administration review on the Internet (see section V of Food and Drugs or designee on methods to effectively communicate risks this document on electronic access). [Docket No. FDA–2012–N–0001] The final recommendation is also associated with products regulated by available from the Division of Drug Request for Nominations for Voting the Food and Drug Administration and Information (see ADDRESSES). The Members on a Public Advisory in discharging responsibilities as they Agency will revise the tables in the Committee; Risk Communication relate to helping to ensure safe and guidance ‘‘Q3C—Tables and List’’ to Advisory Committee effective drugs for human use and any reflect the ICH final recommendation for other product for which the Food and cumene. AGENCY: Food and Drug Administration, Drug Administration has regulatory The final recommendation for the HHS. responsibility. solvent cumene is being issued ACTION: Notice. The Committee reviews and evaluates consistent with FDA’s good guidance strategies and programs designed to practices regulation (21 CFR 10.115). SUMMARY: The Food and Drug communicate with the public about the The revised PDE for the solvent cumene Administration (FDA) is requesting risks and benefits of FDA-regulated contained in the revised guidance nominations for members to serve on products so as to facilitate optimal use ‘‘Q3C—Tables and List’’ represents the the Risk Communication Advisory of these products. The Committee also Agency’s current thinking on this topic. Committee, Office of Planning, Office of reviews and evaluates research relevant It does not create or confer any rights for Policy and Planning, Office of the to such communication to the public by or on any person and does not operate Commissioner. both FDA and other entities. It also to bind FDA or the public. An FDA has a special interest in ensuring facilitates interactively sharing risk and alternative approach may be used if that women, minority groups, and benefit information with the public to such approach satisfies the individuals with disabilities are enable people to make informed requirements of the applicable statutes adequately represented on advisory independent judgments about use of and regulations. committees and, therefore, encourages FDA-regulated products. nominations of qualified candidates II. Criteria for Voting Members III. Comments from these groups. The Committee consists of a core of Interested persons may submit to the DATES: Nominations received on or 15 voting members including the Chair. Division of Dockets Management (see before April 23, 2012 will be given first Members and the Chair are selected by ADDRESSES) either electronic or written consideration for membership on the the Commissioner or designee from comments regarding this document. It is Risk Communication Advisory among authorities knowledgeable in only necessary to send one set of Committee. Nominations received after fields such as social marketing, health comments. Identify comments with the April 23, 2012 will be considered for docket number found in brackets in the literacy, and other relevant areas. nomination to the committee as later Members will include experts on risk heading of this document. The vacancies occur. recommendation and received communication, experts on emerging ADDRESSES: All nominations for comments may be seen in the Division postmarket drug risks and individuals membership should be sent of Dockets Management between 9 a.m. knowledgeable about and experienced electronically to [email protected] or by and 4 p.m., Monday through Friday. in the work of patient, consumer, and mail to the Advisory Committee health professional organizations. IV. Electronic Access Oversight and Management Staff, Food Almost all non-Federal members of this Persons with access to the Internet and Drug Administration, 10903 New committee serve as Special Government may obtain the Q3C guidance Hampshire Ave., Bldg. 32, rm. 5103, Employees. Some members will be documents at http:// Silver Spring, MD 20993–0002. selected to provide experiential insight www.regulations.gov, http:// FOR FURTHER INFORMATION CONTACT: on the communication needs of the www.fda.gov/Drugs/Guidance Regarding all nomination questions for various groups who use FDA-regulated ComplianceRegulatoryInformation/ membership, the primary contact is: Lee products. The latter may include Guidances/default.htm, or http:// L. Zwanziger, Risk Communication patients and patients’ family members, www.fda.gov/;BiologicsBlood;Vaccines/ Staff, Office of Planning, Office of Policy health professionals, communicators in GuidanceComplianceRegulatory and Planning, Office of the health, medicine and science, and Information/Guidances/default.htm. Commissioner, Food and Drug persons affiliated with consumer, Information on the Q3C maintenance Administration, 10903 New Hampshire specific disease, or patient safety process as well as proposals, data Ave., Silver Spring, MD 20993, 301– advocacy groups. Members will be analysis, and draft and final 796–9151, Fax: 301–847–8611, invited to serve for terms of up to 4 recommendations for revisions to the [email protected]. years.

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III. Nomination Procedures Vaccine Injury Compensation (DVIC), DEPARTMENT OF HEALTH AND Any interested person may nominate the Department of Justice, the National HUMAN SERVICES one or more qualified individuals for Vaccine Program Office, the National Institutes of Health membership on the advisory committee. Immunization Safety Office (Centers for Disease Control and Prevention), the Self-nominations are also accepted. Proposed Collection; Comment National Institute of Allergy and Nominations must include a current, Request; Opinions and Perspectives complete re´sume´ or curriculum vitae for Infectious Diseases (National Institutes About the Current Blood Donation each nominee, including current of Health), and the Center for Biologics, Policy for Men Who Have Sex With business address and/or home address, Evaluation, and Research (Food and Men telephone number, and email address if Drug Administration). A draft agenda available. Nominations must also and additional meeting materials will be SUMMARY: In compliance with the specify the advisory committee for posted on the ACCV Web site (http:// requirement of Section 3506(c)(2)(A) of which the nominee is recommended. www.hrsa.gov/vaccinecompensation/ the Paperwork Reduction Act of 1995, Nominations must also acknowledge accv.htm) prior to the meeting. Agenda for opportunity for public comment on that the nominee is aware of the items are subject to change as priorities proposed data collection projects, the nomination unless self-nominated. FDA dictate. National Heart, Lung, and Blood will ask potential candidates to provide Institute (NHLBI), the National detailed information concerning such Public Comment: Persons interested Institutes of Health (NIH), will publish matters related to financial holdings, in attending the meeting in person or periodic summaries of proposed employment, and research grants and/or providing an oral presentation should projects to the Office of Management contracts to permit evaluation of submit a written request, along with a and Budget (OMB) for review and possible sources of conflicts of interest. copy of their presentation to: Annie approval. This notice is issued under the Herzog, DVIC, Healthcare Systems Proposed Collection: Title: Opinions Federal Advisory Committee Act (5 Bureau (HSB), Health Resources and and Perspectives about the Current U.S.C. app. 2) and 21 CFR part 14, Services Administration (HRSA), Room Blood Donation Policy for Men Who relating to advisory committees. 11C–26, 5600 Fishers Lane, Rockville, Have Sex with Men. Type of Dated: February 16, 2012. Maryland 20857 or email: Information Collection Request: New. Jill Hartzler Warner, [email protected]. Requests should Need and Use of Information Collection: The current policy for blood donation in Acting Associate Commissioner for Special contain the name, address, telephone Medical Programs. number, email address, and any the U.S. with respect to men who have sex with men (MSM) is that any man [FR Doc. 2012–4139 Filed 2–22–12; 8:45 am] business or professional affiliation of who discloses having had sex with BILLING CODE 4160–01–P the person desiring to make an oral presentation. Groups having similar another man since 1977 is deferred interests are requested to combine their indefinitely from donating. However, DEPARTMENT OF HEALTH AND comments and present them through a data from donors who have tested HUMAN SERVICES single representative. The allocation of disease marker positive and were time may be adjusted to accommodate interviewed regarding potential risk factors suggest that some individuals Health Resources and Services the level of expressed interest. DVIC continue to donate blood without Administration will notify each presenter by email, mail disclosing MSM activity in Advisory Commission on Childhood or telephone of their assigned contravention of the policy. In the 1980s Vaccines; Notice of Meeting presentation time. Persons who do not there were surveillance studies of risk file an advance request for a factors among donors who were In accordance with section 10(a)(2) of presentation, but desire to make an oral determined to be HIV positive in pre- the Federal Advisory Committee Act statement, may announce it at the time donation testing: Results indicated (Public Law 92–463), notice is hereby of the public comment period. Public MSM behavior to be a risk factor for given of the following meeting: participation and ability to comment Name: Advisory Commission on 56% of male donors. In addition, as part will be limited to space and time as it of the Retrovirus Epidemiology Donor Childhood Vaccines (ACCV). permits. Dates and Times: March 8, 2012, 9 Study (REDS), when anonymously a.m. to 5 p.m. EST. March 9, 2012, 9 FOR FURTHER INFORMATION CONTACT: surveyed by paper and pencil mailed a.m. to 12:30 p.m. EST. Anyone requiring additional surveys, 1.2% of male blood donors reported MSM behavior. Place: Parklawn Building (and via information regarding the ACCV should In a 2007 study conducted in Sweden, audio conference call), Conference contact Annie Herzog, DVIC, HSB, 19% of 334 MSM who responded to a Room 10–65, 5600 Fishers Lane, HRSA, Room 11C–26, 5600 Fishers Rockville, MD 20857. survey that was included in a monthly Lane, Rockville, MD 20857; telephone publication targeted to the Lesbian, Gay, The ACCV will meet on Thursday, (301) 443–6593; email: March 8, from 9 a.m. to 5 p.m. (EST) Bisexual and Transgender (LGBT) [email protected]. and on Friday, March 9, from 9 a.m. to community reported donating blood at 12:30 p.m. (EST). The public can join Dated: February 15, 2012. least one-time since 1985. The authors the meeting via audio conference call by Reva Harris, suggested that MSM donors may be motivated by perceived discrimination, dialing 1–800–369–3104 (on March 8 & Acting Director, Division of Policy and 9) and providing the following Information Coordination. particularly younger MSM. Recent publications from the United information: [FR Doc. 2012–4225 Filed 2–22–12; 8:45 am] Leader’s Name: Dr. Geoffrey Evans. Kingdom have reported what are likely Password: ACCV. BILLING CODE 4165–15–P the only population-based assessment of Agenda: The agenda items for the non-compliance with a similar March meeting will include, but are not restriction on blood donation for the limited to: Updates from the Division of MSM population as in the U.S.; this

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study was conducted in 2009 and 2010 population. Three research aims drive to evaluate how frequently men who and also estimated opinions about and this study’s protocols to provide have had sex with another man since self-reported intended compliance with valuable evidence on the motivations 1977 are donating blood. The surveys the MSM deferral policy in place in the and compliance behaviors in the MSM will be conducted using an instrument United Kingdom at that time. Note, the and blood donor populations. The four that includes common content to policy in the United Kingdom was geographic areas where the study will maximize the comparability of the modified in November 2011 and MSM be conducted include the State of responses. Both surveys will be in the United Kingdom are now allowed Connecticut, Western Pennsylvania, conducted using Internet-based to donate if they have not been sexually Southern Wisconsin, and the Bay Area techniques and currently available active for a one-year period before of California. software (SurveyGizmo, donation. The first aim seeks to assess opinions www.surveygizmo.com). Data similar to those collected in about and common themes within the Sweden and the United Kingdom are MSM population with respect to blood The third aim seeks to assess not available for the U.S. Potential donation and the current MSM policy. motivations for donating in the group of changes to the current MSM policy for Specifically, within a population of self- self-identified MSM who are active blood donation requires additional data, identified MSM in the U.S., what blood donors in the U.S. Participants including information about motivating common themes can be identified from the four geographic areas who factors and compliance with the current regarding knowledge and opinions of report donating blood or the intention to MSM policy or a modified policy in the current blood donation eligibility, and donate will be asked to participate in MSM population and in current blood would opinions, including self-reported confidential qualitative telephone donors. Speculative analyses have been intended compliance, improve if the interviews to identify their reasons for conducted but do not directly address current MSM policy were changed to a donating or wanting to donate blood. important considerations related to this deferral of a defined shorter duration? Frequency of Response: Once. policy such as the current level of Another objective is to use what is Affected Public: Individuals. Type of compliance (in the MSM population) learned in the focus groups to help Respondents: Males 18 years old or and non-compliance (in the blood donor select proper venues for identifying older. The annual reporting burden is as population). While many scientists and MSM who might be interested in follows: Estimated Number of ethicists have expressed opinions in participating in a comprehensive survey Respondents: 4864; Estimated Number support or against modification of the to assess compliance and non- of Responses per Respondent: 1 per current MSM policy for blood donation, compliance with the current MSM respondent for 4844 respondents and 2 there is a lack of data that directly policy (see second aim). per respondent for 20 respondents; addresses important aspects of this The second aim seeks to assess Average Burden of Hours per Response: policy debate. The proposed study will compliance and non-compliance in the 1.5 hours for Aim 1, 0.33 hour for Aim build off the studies conducted in MSM population with the current MSM 2, and 1.0 hour for Aim 3; and Sweden and the United Kingdom and blood donation policy by confidentially Estimated Total Annual Burden Hours will collect directly relevant surveying two populations. One survey Requested: 1,700. The annualized total information on this topic by estimating will be conducted in the MSM cost to all respondents is estimated at: the prevalence of compliance and non- community to provide better estimates $13,600 (based on $8.00 per hour). compliance with the current MSM of compliance and non-compliance with There are no Capital Costs to report. policy and assessing motivations for the current policy and a second survey There are no Operating or Maintenance blood donation in the U.S. MSM will be conducted in male blood donors Costs to report.

Estimated Estimated Number of Average Burden Estimated Total Study Aims Annual Number Responses per Hours per Annual Burden of Respondents Respondent Response Hours Requested

Aim 1—Focus Groups ...... 64 1 1 .5 96 Aim 2.1—Web interview ...... 1,600 1 0 .33 528 Aim 2.2—Web interview ...... 3,200 1 0 .33 1056 Aim 3 ...... * 20 1 1 20 * Aim 3 respondents are a subset of the respondents included in Aim 2.

Request For Comments: Written and clarity of the information collected; Rockledge Drive, Bethesda, MD 20892, comments and/or suggestions from the and (4) Ways to minimize the burden of or call 301– 435–0065, or Email your public and affected agencies should the collection of information on those request to: [email protected]. address one or more of the following who are to respond, including the use Comments Due Date: Comments points: (1) Whether the proposed of appropriate automated, electronic, regarding this information collection are collection of information is necessary mechanical, or other technological best assured of having their full effect if collection techniques or other forms of for the proper performance of the received within 60 days of the date of information technology. function of the agency, including this publication. whether the information will have FOR FURTHER INFORMATION CONTACT: To practical utility; (2) The accuracy of the request more information on the agency’s estimate of the burden of the proposed project or to obtain a copy of proposed collection of information, the data collection plans and including the validity of the instruments, contact: Simone Glynn, methodology and the assumptions used; MD, Project Officer/ICD Contact, Two (3) Ways to enhance the quality, utility, Rockledge Center, Suite 9142, 6701

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Dated: February 9, 2012. Institutes of Health (NIH) has submitted access to both common and specifically Keith Hoots, to the Office of Management and Budget rare and neglected disease through a Director, Division of Blood Diseases and (OMB) a request for review and variety of programs delivering assay Resources, National Heart, Lung, and Blood approval of the information collection development, screening, hit to lead Institute, NIH. listed below. This proposed information chemistry, lead optimization, chemical Dated: February 13, 2012. collection was previously published in biology studies, drug development Lynn Susulske, the Federal Register on November 11, capabilities, expertise, and clinical/ NHLBI Project Clearance Liaison, National 2011, page 69743–69744 and allowed regulatory resources in a collaborative Institutes of Health. 60-days for public comment. No public environment with the goal of moving [FR Doc. 2012–4211 Filed 2–22–12; 8:45 am] comments were received. The purpose promising therapeutics into human BILLING CODE 4140–01–P of this notice is to allow an additional clinical trials. NCTT uses an application 30 days for public comment. The and evaluation process to select National Institutes of Health may not collaborators. Selected investigators DEPARTMENT OF HEALTH AND conduct or sponsor, and the respondent provide the drug project starting points HUMAN SERVICES is not required to respond to, an information collection that has been and ongoing biological/disease expertise National Institutes of Health extended, revised, or implemented on or throughout the project. Frequency of after October 1, 1995, unless it displays Response: Once per year. Affected Submission for OMB Review; a currently valid OMB control number. Public: Research scientists. Type of Comment Request; Application for Proposed Collection: Title: Respondents: not-for-profits, for-profit, Collaboration With the NIH Center for governmental. The annual reporting Translational Therapeutics (NCTT) Application for collaboration with the NIH Center for Translational burden is as follows: Estimated Number SUMMARY: Under the provisions of Therapeutics (NCTT) . Type of of Respondents: 170. Estimated Number Section 3507(a)(1)(D) of the Paperwork Information Collection Request: New. of Responses per Respondent: 1. Reduction Act of 1995, the National Need and Use of Information Collection: Average Burden Hours Per Response: 1. Center for Advancing Translational Programs at the NCTT provide Estimated Total Annual Burden Hours Sciences (NCATS), the National opportunities to partner with and gain Requested: 510.

ESTIMATES OF HOUR BURDEN

Number of Average burden Forms Number of responses per hours per Total annual respondents respondent response burden hours

Online Collaborator Solicitation ...... 170 1 1 170 NCTT Project Information Template ...... 170 1 1 170 Solicitation Instructions (TRND) ...... 100 1 1 100 Solicitation Instructions (BrIDGs) ...... 70 1 1 70

Total ...... 510

The annualized cost to respondents is collection techniques or other forms of received within 30-days of the date of estimated at: $21,261. Capital Costs are information technology. this publication. $0. Operating Cost is roughly $14,333 Direct Comments to OMB: Written Dated: February 15, 2012. for the database to accept and comments and/or suggestions regarding John McKew, coordinate responses. the item(s) contained in this notice, Chief, Preclinical Development Branch, NIH Request for Comments: Written especially regarding the estimated Center for Translational Therapeutics, comments and/or suggestions from the public burden and associated response National Center for Advancing Translational public and affected agencies are invited time, should be directed to the: Office Sciences, National Institutes of Health. on one or more of the following points: of Management and Budget, Office of [FR Doc. 2012–4212 Filed 2–22–12; 8:45 am] (1) Whether the proposed collection of Regulatory Affairs, BILLING CODE 4140–01–P [email protected] or by information is necessary for the proper fax to 202–395–6974, Attention: Desk performance of the function of the Officer for NIH. To request more DEPARTMENT OF HEALTH AND agency, including whether the information on the proposed project or HUMAN SERVICES information will have practical utility; to obtain a copy of the data collection (2) The accuracy of the agency’s plans and instruments, contact: Dr. National Institutes of Health estimate of the burden of the proposed Helen Gift, Chief, Disease Prevention collection of information, including the and Health Promotion Branch, DEODP, National Institute of Child Health and validity of the methodology and NIDCR, NIH, Natcher Building, Room Human Development Proposed assumptions used; (3) Ways to enhance 3AN–44D, 9000 Rockville Pike, Collection; Comment Request; NEXT the quality, utility, and clarity of the Bethesda, MD 20892, or call non-toll- Generation Health Study information to be collected; and (4) free number 301–594–5579 or Email SUMMARY: In compliance with the Ways to minimize the burden of the your request, including your address to: requirement of Section 3506(c)(2)(A) of collection of information on those who [email protected]. the Paperwork Reduction Act of 1995, are to respond, including the use of Comments Due Date: Comments for opportunity for public comment on appropriate automated, electronic, regarding this information collection are proposed data collection projects, the mechanical, or other technological best assured of having their full effect if National Institute of Child Health and

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Human Development (NICHD), the The goal of this research is to health of U.S. adolescents and National Institutes of Health (NIH) will continue to obtain data on adolescent influences on their health. publish periodic summaries of proposed health and health behaviors annually for The study has collected information projects to be submitted to the Office of seven years beginning in the 2009–2010 on adolescent health behaviors and Management and Budget (OMB) for school year from a national probability social and environmental contexts for review and approval. sample of adolescents. The transition these behaviors annually for three years Proposed Collection: from high school to post high school beginning in the 2009–2010 school year. years is a critical period for changes in This study will continue to collect this Title: NEXT Generation Health Study. adolescent health risk behaviors. This information for an additional four years Type of Information Collection information will enable the beginning in 2013. Self-report of health Request: Reinstatement. improvement of health services and status, health behaviors, and health Need and Use of Information programs for youth. The study will attitudes will be collected by online Collection: provide needed information about the surveys.

TABLE 1—ANNUAL BURDEN FOR AFFECTED PUBLIC: SCHOOL-AGE CHILDREN, PARENTS AND SCHOOL ADMINISTRATORS

Estimated Estimated total Estimated number of Average annual burden Type of respondents number of responses per burden hours hours respondents respondent per response requested

Adolescents ...... 2,600 1 1.0 2,600

The estimated annualized cost to using 2008 Department of Labor figures cohort will be attending school or respondents is $22,807 (Table 2). These for wages of average wage and salaried unemployed during the first year after costs were estimated for the 2013 survey employees and assuming an annual high school, thereby reducing the year only, not the entire duration of the increase of 1.25%, 50-week contract, average hourly earnings from $21.93 to project. These estimates were calculated and 40-hour week and that 60% of the $8.77.

TABLE 2—ANNUAL COST TO RESPONDENTS—2013 SURVEY YEAR ONLY

Estimated total Estimated Average annual burden annual hourly Estimated cost Type of respondents hours earnings earnings during survey requested during survey (with rounding) year

Adolescents ...... 2,600 $16,908 $8.77 $22,807

There are no Capital Costs to report. the data collection plans and DEPARTMENT OF HEALTH AND There are no Operating or Maintenance instruments, contact Dr. Ronald HUMAN SERVICES Costs to report. Iannotti, Prevention Research Branch, No direct costs to the respondents Division of Epidemiology, Statistics, National Institutes of Health themselves or to participating schools and Prevention Research, Eunice Eunice Kennedy Shriver National are anticipated. Kennedy Shriver National Institute of Request for Comments: Written Institute of Child Health and Human Child Health and Human Development, Development (NICHD); Notice of comments and/or suggestions from the Building 6100, 7B05, 9000 Rockville public and affected agencies are invited Meeting Pike, Bethesda, Maryland, 20892–7510, on one or more of the following points: or call non-toll free number (301) 435– (1) Whether the proposed collection of Pursuant to the NIH Reform Act of information is necessary for the proper 6951 or Email your request, including 2006 (42 U.S.C. Sec. 281 (d)(4)), notice performance of the function of the your address to . is hereby given that the Eunice Kennedy agency, including whether the Comments Due Date: Comments Shriver National Institute of Child information will have practical utility; regarding this information collection are Health and Human Development (2) The accuracy of the agency’s best assured of having their full effect if (NICHD) will host a meeting to enable estimate of the burden of the proposed received within 60 days of the date of public discussion of the Institute’s collection of information, including the this publication. proposal to reorganize its extramural validity of the methodology and program. The proposal seeks to Dated: February 15, 2012. assumptions used; (3) Ways to minimize capitalize on emerging scientific the burden of the collection of Sarah Glavin, opportunities, while reducing barriers to information on those who are to Deputy Director, Office of Science Policy, scientific and interdisciplinary respond, including the use of Analysis and Communications, National collaboration. appropriate automated, electronic, Institute of Child Health and Human This public meeting will take place on Development. mechanical, or other technological March 7, 2012. Information is available collection techniques or other forms of [FR Doc. 2012–4222 Filed 2–22–12; 8:45 am] on the Institute’s Web site, http:// information technology. BILLING CODE 4140–01–P www.nichd.nih.gov/about/meetings/ FOR FURTHER INFORMATION CONTACT: To 2012/030712.cfm, where an agenda and request more information on the any additional information for the proposed project or to obtain a copy of meeting will be posted when available.

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Organizing Institute: Eunice Kennedy of Intramural Research, NIH, Building 1, committee proposed three principles Shriver National Institute of Child Health Room 160, Tel. (301) 496–1921, Fax which must all be applied to analyze and Human Development. (301) 402–4273, or email current and potential future research Dates and Times: March 7, 2012, at 3 p.m. [email protected] in advance of using chimpanzees. Place: American Psychological the meeting. 1. That the knowledge gained must be Association, 750 First Street NE., 6th Floor Conference Room, Washington, DC 20002. Dated: February 16, 2012. necessary to advance the public’s Agenda: A public discussion on the health; Lawrence Tabak, 2. There must be no other research proposed reorganization plans for NICHD. Deputy Director, NIH. Contact Person: Lisa Kaeser, J.D., Eunice model by which the knowledge could be Kennedy Shriver National Institute of Child [FR Doc. 2012–4210 Filed 2–22–12; 8:45 am] obtained, and the research cannot be Health and Human Development, NIH, Office BILLING CODE 4140–01–P ethically performed on human subjects; of Program and Public Liaison, 31 Center and Drive, MSC 2425, Building 31, Room 2A03, 3. The animals used in the proposed Bethesda, MD 20892, 301–496–0536, DEPARTMENT OF HEALTH AND research must be maintained either in [email protected]. HUMAN SERVICES ethologically appropriate physical and social environments (i.e., as would Members of the public wishing to National Institutes of Health attend must RSVP to the contact person occur in their natural environment) or on this notice by March 5, 2012 and Request for Information (RFI): Input in natural habitats. bring a photo ID to facilitate security Into the Deliberations of the Council of Based on its deliberations, the IOM check-in at the building entrance. Councils Working Group on the Use of committee concluded that ‘‘while the Any interested person may file Chimpanzees in NIH-Supported chimpanzee has been a valuable animal written comments by sending an email Research model in past research, most current use to [email protected], of chimpanzees for biomedical research by March 16, 2012. The statement SUMMARY: The National Institutes of is unnecessary.’’ The committee also should include the individual’s name Health Council of Councils has concluded, however, that the following and, when applicable, professional established a working group to provide areas may continue to require the use of affiliation. recommendations to the Council on: (1) chimpanzees: a limited number of Implementing the guiding principles ongoing studies on monoclonal Dated: February 14, 2012. and criteria contained within the antibody therapies, research on Alan E. Guttmacher, Institute of Medicine report, comparative genomics, and non- Director, Eunice Kennedy Shriver National ‘‘Chimpanzees in Biomedical and invasive studies of social and behavioral Institute of Child Health and Human Behavioral Research: Assessing the factors that affect the development, Development, National Institutes of Health. Necessity’’, and (2) the size and prevention, or treatment of disease. The [FR Doc. 2012–4224 Filed 2–22–12; 8:45 am] placement of the research active and committee was unable to reach BILLING CODE 4140–01–P inactive populations of NIH-owned or consensus on the necessity of the -supported chimpanzees. See http:// chimpanzee for the development of dpcpsi.nih.gov/council/ prophylactic hepatitis C virus vaccine. DEPARTMENT OF HEALTH AND working_group.aspx for the working While the committee encouraged NIH to HUMAN SERVICES group’s charge and roster. The NIH is continue development of non- seeking public input to inform the National Institutes of Health chimpanzee models and technologies, it working group’s deliberations. acknowledged that new, emerging, or re- Chairpersons, Boards of Scientific Background: The use of animals in emerging diseases may present Counselors for Institutes and Centers research has enabled scientists to challenges that may require the use of at the National Institutes of Health, identify new ways to treat illness, chimpanzees. Notice of Meeting extend life, and improve health and The Working Group is gathering input well-being. Chimpanzees are our closest from various sources, including Notice is hereby given of a meeting relatives in the animal kingdom, researchers, academic institutions, scheduled by the Deputy Director for providing exceptional insights into foundations, scientific societies, Intramural Research at the National human biology and the need for special government and regulatory agencies, Institutes of Health (NIH) with the consideration and respect. While used industry, and the public, to help inform Chairpersons of the Boards of Scientific very selectively and in limited numbers the development of its Counselors. The Boards of Scientific for medical research, chimpanzees have recommendations to the Council of Counselors are advisory groups to the served an important role in advancing Councils on actions the NIH can take to Scientific Directors of the Intramural human health in the past. However, new implement the IOM recommendations Research Programs at the NIH. This methods and technologies developed by and to consider the size and placement meeting will take place on March 2, the biomedical community have of the active and inactive populations of 2012, from 10 am to 2 pm, at the NIH, provided alternatives to the use of NIH-owned or -supported chimpanzees. 1 Center Drive, Bethesda, MD, Building chimpanzees in several areas of The following are areas of their charge 1, Room 151. The meeting will include research. and examples of questions within each a discussion of policies and procedures In December 2010, the National which might need to be considered that apply to the regular review of NIH Institutes of Health commissioned a when developing recommendations. intramural scientists and their work. study by the Institute of Medicine (IOM) • Developing a plan for The meeting will be open to the to assess whether chimpanzees are or implementation of the IOM’s guiding public, with attendance limited to space will be necessary for biomedical and principles and criteria. available. Individuals who plan to behavioral research. The IOM issued its • Factors to consider in reviewing attend and need special assistance, such findings on December 15, 2011, with a currently active NIH-supported research as sign language interpretation or other primary recommendation that the use of using chimpanzees to advise on which reasonable accommodations, should chimpanzees in research be guided by a studies currently meet the principles contact Mr. Joe Kleinman at the Office set of principles and criteria. The and criteria defined by the IOM report

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and advising on the process for closing • Government and regulatory ACTION: 30-Day notice and request for studies if any do not comply with the agencies comments; extension of an existing IOM recommendations. For example: • Industry collection of information. Criteria to assess ‘‘minimally invasive’’ • NIH grantee institutions, and SUMMARY: U.S. Customs and Border procedures for comparative genomics • The public Protection (CBP) of the Department of and behavioral research and Input is sought for each of the areas Homeland Security will be submitting ‘‘ethologically appropriate’’ physical identified above. For any of the areas the following information collection and social environments; Criteria to identified above and any other specific request to the Office of Management and balance phasing out of the existing areas you believe are worthy of Budget (OMB) for review and approval research without causing ‘‘unacceptable consideration by the working group, in accordance with the Paperwork losses to research programs’’ or an please identify the critical issues(s) and Reduction Act: Screening Requirements unacceptable ‘‘impact on the animals’’. impact(s) on institutions, scientists, and • for Carriers. This is a proposed Factors to consider when advising the mission of NIH to perform research extension of an information collection on the size and placement of active and to improve human health. that was previously approved. CBP is inactive populations of NIH-owned or- Response to this RFI is voluntary. proposing that this information supported chimpanzees as a result of Responders are free to address any or all collection be extended with no change implementing the IOM of the above items. Please note that the to the burden hours. This document is recommendations. For example: Ways Government will not pay for response published to obtain comments from the to address capacity issues that would preparation or for the use of any accompany an increase in ‘inactive’ public and affected agencies. This information contained in the response. animals; Factors to consider in proposed information collection was The NIH may make all responses transitioning the animals that are newly previously published in the Federal available, including name of the inactive; How many and what would be Register (76 FR 80375) on December 23, responder. In addition, NIH will prepare the characteristics of animals held in 2011, allowing for a 60-day comment and make available a summary of all reserve for future research, if any; The period. One comment was received. input received which is responsive to number of animals needed to maintain This notice allows for an additional 30 this RFI. a viable number of research naı¨ve days for public comments. This process animals but also genetic and social How To Submit a Response: All is conducted in accordance with 5 CFR stability and sufficient diversity for comments must be submitted 1320.10. electronically to http://grants.nih.gov/ unanticipated research needs. _ _ DATES: Written comments should be • A review process for considering grants/guide/rfi files/nih chimp/ add.cfm. Comments must pertain to the received on or before March 26, 2012. whether potential future use of the ADDRESSES: Interested persons are chimpanzee in NIH-supported research category for which feedback is requested and must conform to the word limit invited to submit written comments on is scientifically necessary and consistent this proposed information collection to with the IOM principles. For example: indicated. Responses to this RFI will be accepted through April 10, 2012. You the Office of Information and Regulatory Factors to consider in determining Affairs, Office of Management and whether other models (e.g., in vitro, will see an electronic confirmation acknowledging receipt of your response, Budget. Comments should be addressed other in vivo) would be a ‘‘suitable to the OMB Desk Officer for Customs model’’ for answering the research but will not receive individualized feedback on any suggestions. No basis and Border Protection, Department of question; Research areas where Homeland Security, and sent via alternative model development is for claims against the U.S. Government electronic mail to oira_submission@ recommended; Whether NIH should shall arise as a result of a response to omb.eop.gov or faxed to (202) 395–5806. have a plan to maintain a minimal this request for information or from the population of federally-owned Government’s use of such information. FOR FURTHER INFORMATION CONTACT: chimpanzees and input on the design of FOR FURTHER INFORMATION CONTACT: Requests for additional information the plan; Circumstances under which Specific questions about this RFI should should be directed to Tracey Denning, chimpanzees should be considered as a be directed to the following email U.S. Customs and Border Protection, model for ‘‘a new, emerging, or address: [email protected]. Regulations and Rulings, Office of International Trade, 799 9th Street NW., reemerging disease or disorder that may Dated: February 13, 2012. present challenges to treatment, 5th Floor, Washington, DC 20229–1177, Lawrence A. Tabak, prevention, and/or control that defy at 202–325–0265. non-chimpanzee models and available Principal Deputy Director, National Institutes SUPPLEMENTARY INFORMATION: CBP of Health. technologies’’; Characteristics of the invites the general public and other oversight committee responsible for [FR Doc. 2012–4269 Filed 2–22–12; 8:45 am] Federal agencies to comment on reviewing future research proposals and BILLING CODE 4140–01–P proposed and/or continuing information determining whether they are consistent collections pursuant to the Paperwork with the IOM criteria and whether they Reduction Act of 1995 (Pub. L. 104–13; can be conducted. 44 U.S.C. 3505(c)(2)). The comments Information Requested: To ensure a DEPARTMENT OF HOMELAND should address: (a) Whether the thorough and comprehensive evaluation SECURITY collection of information is necessary for the proper performance of the of the issues underlying the Customs and Border Protection implementation of the IOM Report’s functions of the agency, including guiding principles and criteria and the Agency Information Collection whether the information shall have size and placement of NIH-owned or Activities: Screening Requirements for practical utility; (b) the accuracy of the -supported animals, input is being Carriers agency’s estimates of the burden of the sought from the biomedical research collection of information; (c) ways to community, including: AGENCY: U.S. Customs and Border enhance the quality, utility, and clarity • Foundations Protection, Department of Homeland of the information to be collected; (d) • Scientific societies Security ways to minimize the burden including

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the use of automated collection Dated: February 17, 2012. techniques or the use of other forms of techniques or the use of other forms of Tracey Denning, information technology; and (e) the information technology; and (e) the Agency Clearance Officer, U.S. Customs and annual cost burden to respondents or annual costs burden to respondents or Border Protection. record keepers from the collection of record keepers from the collection of [FR Doc. 2012–4237 Filed 2–22–12; 8:45 am] information (total capital/startup costs information (a total capital/startup costs BILLING CODE 9111–14–P and operations and maintenance costs). and operations and maintenance costs). The comments that are submitted will The comments that are submitted will be summarized and included in the CBP be summarized and included in the CBP DEPARTMENT OF HOMELAND request for Office of Management and request for Office of Management and SECURITY Budget (OMB) approval. All comments Budget (OMB) approval. All comments will become a matter of public record. U.S. Customs and Border Protection will become a matter of public record. In this document CBP is soliciting In this document CBP is soliciting Agency Information Collection comments concerning the following comments concerning the following Activities: Declaration of Person Who information collection: information collection: Performed Repairs Title: Declaration of Person Who Performed Repairs. Title: Screening Requirements for AGENCY: U.S. Customs and Border Carriers. OMB Number: 1651–0048. Protection (CBP), Department of Form Number: None. OMB Number: 1651–0122. Homeland Security. Abstract: The ‘‘Declaration of Persons ACTION: 60-Day notice and request for Form Number: None. Who Performed Repairs or Alterations,’’ comments; extension of an existing Abstract: Section 273(e) of the as required by 19 CFR 10.8, is used in collection of information. Immigration and Nationality Act (8 connection with the entry of articles U.S.C. 1323(e) the Act) authorizes the SUMMARY: As part of its continuing effort entered under subheadings 9802.00.40 Department of Homeland Security to to reduce paperwork and respondent and 9802.00.50, Harmonized Tariff establish procedures which carriers burden, CBP invites the general public Schedule of the United States (HTSUS). must undertake for the proper screening and other Federal agencies to comment Articles entered under these HTSUS of their alien passengers prior to on an information collection provisions are articles that were in the embarkation at the port from which they requirement concerning the: Declaration U.S. and were exported temporarily for are to depart for the United States, in of a Person Who Performed Repairs. repairs. Upon their return, duty is only order to become eligible for an This request for comment is being made assessed on the value of the repairs automatic reduction, refund, or waiver pursuant to the Paperwork Reduction performed abroad and not on the full of a fine imposed under section Act of 1995 (Pub. L. 104–13). value of the article. The declaration 273(a)(1) of the Act. To be eligible to DATES: Written comments should be under 19 CFR 10.8 includes information obtain such an automatic reduction, received on or before April 23, 2012, to such as a description of the article and refund, or waiver of a fine, the carrier be assured of consideration. the repairs, the value of the article and must provide evidence to CBP that it ADDRESSES: Direct all written comments the repairs, and a declaration by the screened all passengers on the to U.S. Customs and Border Protection, owner, importer, consignee, or agent conveyance in accordance with the Attn: Tracey Denning, Regulations and having knowledge of the pertinent facts. procedures listed in 8 CFR 273.3. Rulings, Office of International Trade, The information in this declaration is used by CBP to determine the value of Some examples of the evidence the 799 9th Street NW., 5th Floor, the repairs and assess duty only on the carrier may provide to CBP include: A Washington, DC 20229–1177. value of those repairs. description of the carrier’s document FOR FURTHER INFORMATION CONTACT: screening training program; the number Requests for additional information Current Actions: CBP proposes to of employees trained; information should be directed to Tracey Denning, extend the expiration date of this regarding the date and number of U.S. Customs and Border Protection, information collection with no change to the burden hours or to the improperly documented aliens Regulations and Rulings, Office of information collected. intercepted by the carrier at the port(s) International Trade, 799 9th Street NW., of embarkation; and any other evidence 5th Floor, Washington, DC 20229–1177, Type of Review: Extension (without to demonstrate the carrier’s efforts to at 202–325–0265. change). properly screen passengers destined for SUPPLEMENTARY INFORMATION: CBP Affected Public: Businesses. the United States. invites the general public and other Estimated Number of Respondents: Current Actions: CBP proposes to Federal agencies to comment on 10,236. extend the expiration date of this proposed and/or continuing information Estimated Number of Total Annual information collection with no change collections pursuant to the Paperwork Responses: 20,472. to the burden hours or to the Reduction Act of 1995 (Pub. L. 104–13). Estimated Number of Annual information collected. The comments should address: (a) Responses per Respondent: 2. Whether the collection of information is Estimated Time per Response: 30 Type of Review: Extension (without necessary for the proper performance of change). minutes. the functions of the agency, including Estimated Total Annual Burden Affected Public: Carriers. whether the information shall have Hours: 10,236. practical utility; (b) the accuracy of the Estimated Number of Respondents: Dated: February 17, 2012. 65. agency’s estimates of the burden of the collection of information; (c) ways to Tracey Denning, Estimated Time per Respondent: 100 enhance the quality, utility, and clarity Agency Clearance Officer, U.S. Customs and hours. of the information to be collected; (d) Border Protection. Estimated Total Annual Burden ways to minimize the burden including [FR Doc. 2012–4236 Filed 2–22–12; 8:45 am] Hours: 6,500. the use of automated collection BILLING CODE 9111–14–P

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DEPARTMENT OF HOUSING AND party or agency, and to act as neutrals, utility, and clarity of the information to URBAN DEVELOPMENT mediators, and arbitrators. be collected; and (4) Minimize the DATES: Comments Due Date: March 26, burden of the collection of information [Docket No. FR–5603–N–14] 2012. on those who are to respond; including through the use of appropriate ADDRESSES: Interested persons are automated collection techniques or Notice of Submission of Proposed invited to submit comments regarding other forms of information technology, Information Collection to OMB; this proposal. Comments should refer to e.g., permitting electronic submission of Manufactured Housing Dispute the proposal by name and/or OMB responses. Resolution approval Number (2502–0562) and This notice also lists the following should be sent to: HUD Desk Officer, AGENCY: Office of the Chief Information information: Office of Management and Budget, New Officer, HUD. Title of Proposal: Manufactured Executive Office Building, Washington, Housing Dispute Resolution. ACTION: Notice. DC 20503; fax: 202–395–5806. Email: OMB Approval Number: 2502–0562. [email protected] fax: SUMMARY: The proposed information Form Numbers: HUD 310–DRSC, 202–395–5806. collection requirement described below HUD–311–DR. has been submitted to the Office of FOR FURTHER INFORMATION CONTACT: Description of the Need for the Management and Budget (OMB) for Colette Pollard., Reports Management Information and its Proposed Use: HUD review, as required by the Paperwork Officer, QDAM, Department of Housing collects this information to establish a Reduction Act. The Department is and Urban Development, 451 Seventh manufactured housing dispute soliciting public comments on the Street SW., Washington, DC 20410; resolution program for states that choose subject proposal. email Colette Pollard at Colette. not to operate their own dispute HUD collects this information to [email protected]. or telephone (202) resolution programs. Form HUD–310– establish a manufactured housing 402–3400. This is not a toll-free number. DRSC allows a state to certify that its dispute resolution program for states Copies of available documents state dispute resolution program meets that choose not to operate their own submitted to OMB may be obtained the program requirements. Form HUD– dispute resolution programs. Form from Ms. Pollard. 311–DR allows persons who have HUD–310–DRSC allows a state to certify SUPPLEMENTARY INFORMATION: This initiated their participation in the that its state dispute resolution program notice informs the public that the federal dispute resolution program to meets the program requirements. Form Department of Housing and Urban submit the necessary information HUD–311–DR allows persons who have Development has submitted to OMB a regarding their request to the federal initiated their participation in the request for approval of the Information program for further action there are two federal dispute resolution program to collection described below. This notice groups of respondents. The first group is submit the necessary information is soliciting comments from members of the 50 states; the second group consists regarding their request to the federal the public and affecting agencies of individual purchasers, program for further action there are two concerning the proposed collection of manufacturers, retailers, and installers groups of respondents. The first group is information to: (1) Evaluate whether the of manufactured housing. HUD has the 50 states; the second group consists proposed collection of information is engaged dispute resolution of individual purchasers, necessary for the proper performance of professionals from various federal manufacturers, retailers, and installers the functions of the agency, including agencies to review the submissions and of manufactured housing. HUD has whether the information will have then possibly contact the submitting engaged dispute resolution practical utility; (2) Evaluate the party or agency, and to act as neutrals, professionals from various federal accuracy of the agency’s estimate of the mediators, and arbitrators. agencies to review the submissions and burden of the proposed collection of Frequency of Submission: On then possibly contact the submitting information; (3) Enhance the quality, occasion.

Number of Annual × Hours per respondents responses response = Burden hours

Reporting Burden ...... 228 1 2.241 511

Total Estimated Burden Hours: 511. DEPARTMENT OF HOUSING AND has been submitted to the Office of Status: Extension without change of a URBAN DEVELOPMENT Management and Budget (OMB) for curtly approved collection. review, as required by the Paperwork [Docket No. FR–5603–N–16] Reduction Act. The Department is Authority: Section 3507 of the Paperwork soliciting public comments on the Reduction Act of 1995, 44 U.S.C. 35, as Notice of Submission of Proposed subject proposal. amended. Information Collection to OMB Application for the ROSS grant Dated: February 15, 2012. Application for the Resident program: Service Coordinators Program Colette Pollard, Opportunities and Self Sufficiency (ROSS) Program and Family Self-Sufficiency for Public Departmental Reports Management Officer, Housing. Eligible applicants are PHAs, Office of the Chief Information Officer. AGENCY: Office of the Chief Information Tribes/TDHEs, Non-Profits and Resident [FR Doc. 2012–4142 Filed 2–22–12; 8:45 am] Officer, HUD. Associations. Information collected will BILLING CODE 4210–67–P ACTION: Notice. be used to evaluate applications and award grants through the HUD SUMMARY: The proposed information SuperNOFA process. collection requirement described below

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DATES: Comments Due Date: March 26, SUPPLEMENTARY INFORMATION: This e.g., permitting electronic submission of 2012. notice informs the public that the responses. Department of Housing and Urban This notice also lists the following ADDRESSES: Interested persons are Development has submitted to OMB a information: invited to submit comments regarding request for approval of the Information Title Of Proposal: Application for the this proposal. Comments should refer to collection described below. This notice Resident Opportunities and Self the proposal by name and/or OMB is soliciting comments from members of Sufficiency (ROSS) Program. approval Number (2577–0229) and the public and affecting agencies OMB Approval Number: 2577–0229. should be sent to: HUD Desk Officer, concerning the proposed collection of Form Numbers: HUD–2994–A, HUD– Office of Management and Budget, New information to: (1) Evaluate whether the 2991, HUD 52753, HUD 52755, SF424, Executive Office Building, Washington, proposed collection of information is SF424 Supplement, HUD 52752, HUD DC 20503; fax: 202–395–5806. Email: necessary for the proper performance of 52754, HUD 2880, HuD 2990, HUD [email protected] fax: 96010, SF LLL, HUD–52769, HUD– the functions of the agency, including 202–395–5806. 52768, HUD–2993, HUD 52651. whether the information will have Description of the Need for the FOR FURTHER INFORMATION CONTACT: practical utility; (2) Evaluate the Information and Its Proposed Use: Colette Pollard., Reports Management accuracy of the agency’s estimate of the Application for the ROSS grant Officer, QDAM, Department of Housing burden of the proposed collection of program: Service Coordinators Program and Urban Development, 451 Seventh information; (3) Enhance the quality, and Family Self-Sufficiency for Public Street SW., Washington, DC 20410; utility, and clarity of the information to Housing. Eligible applicants are PHAs, email Colette Pollard at Colette. be collected; and (4) Minimize the Tribes/TDHEs, Non-Profits and Resident [email protected]. or telephone (202) burden of the collection of information Associations. Information collected will 402–3400. This is not a toll-free number. on those who are to respond; including be used to evaluate applications and Copies of available documents through the use of appropriate award grants through the HUD submitted to OMB may be obtained automated collection techniques or SuperNOFA process. from Ms. Pollard. other forms of information technology, Frequency of Submission: Annually.

Number of Annual × Hours per respondents responses response = Burden hours

Reporting Burden ...... 700 1 3.464 2,425

Total Estimated Burden Hours: 2,425. When a rent increase for certain SUPPLEMENTARY INFORMATION: This Status: Revision of a currently Section 8 subsidized projects is denied, notice informs the public that the approved collection. in full or in part, owners may submit to Department of Housing and Urban Authority: Section 3507 of the Paperwork HUD an appeal letter outlining the basis Development has submitted to OMB a Reduction Act of 1995, 44 U.S.C. 35, as for the appeal. The appeal letter must be request for approval of the Information amended. submitted to the Contract Administrator collection described below. This notice is soliciting comments from members of Dated: February 16, 2012. or the HUD Director for review. HUD uses the information to determine the public and affecting agencies Colette Pollard, whether to deny or allow Section 8 rent concerning the proposed collection of Departmental Reports Management Officer, increases. information to: (1) Evaluate whether the Office of the Chief Information Officer. proposed collection of information is [FR Doc. 2012–4206 Filed 2–22–12; 8:45 am] DATES: Comments Due Date: March 26, necessary for the proper performance of BILLING CODE 4210–67–P 2012. the functions of the agency, including ADDRESSES: Interested persons are whether the information will have invited to submit comments regarding practical utility; (2) Evaluate the DEPARTMENT OF HOUSING AND this proposal. Comments should refer to accuracy of the agency’s estimate of the URBAN DEVELOPMENT the proposal by name and/or OMB burden of the proposed collection of [Docket No. FR–5603–N–12] approval Number (2502–0446) and information; (3) Enhance the quality, should be sent to: HUD Desk Officer, utility, and clarity of the information to Notice of Submission of Proposed Office of Management and Budget, New be collected; and (4) Minimize the Information Collection to OMB; Executive Office Building, Washington, burden of the collection of information Procedures for Appealing Section 8 DC 20503; fax: 202–395–5806. Email: on those who are to respond; including Rent Adjustments [email protected] fax: through the use of appropriate 202–395–5806. automated collection techniques or AGENCY: Office of the Chief Information other forms of information technology, Officer, HUD. FOR FURTHER INFORMATION CONTACT: e.g., permitting electronic submission of ACTION: Notice. Colette Pollard, Reports Management responses. Officer, QDAM, Department of Housing This notice also lists the following SUMMARY: The proposed information and Urban Development, 451 Seventh information: collection requirement described below Street SW., Washington, DC 20410; Title of Proposal: Procedures for has been submitted to the Office of email Colette Pollard at Appealing Section 8 Rent Adjustments. Management and Budget (OMB) for [email protected], or telephone OMB Approval Number: 2502–0446. review, as required by the Paperwork (202) 402–3400. This is not a toll-free Form Numbers: None. Reduction Act. The Department is number. Copies of available documents Description of the Need for the soliciting public comments on the submitted to OMB may be obtained Information and Its Proposed Use: subject proposal. from Ms. Pollard. When a rent increase for certain Section

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8 subsidized projects is denied, in full submitted to the Contract Administrator whether to deny or allow Section 8 rent or in part, owners may submit to HUD or the HUD Director for review. HUD increases. an appeal letter outlining the basis for uses the information to determine Frequency of Submission: On the appeal. The appeal letter must be occasion.

Number of Annual × Hours per respondents responses response = Burden hours

Reporting burden ...... 400 1 2 800

Total Estimated Burden Hours: 800. accounting principles, in a prescribed concerning the proposed collection of Status: Extension without change of a format. Electronic submissions of this information to: (1) Evaluate whether the currently approved collection. data require use of a template. HUD uses proposed collection of information is Authority: Section 3507 of the Paperwork this information to monitor the owners’ necessary for the proper performance of Reduction Act of 1995, 44 U.S.C. 35, as compliance with regulatory the functions of the agency, including amended. requirements and to assess fiscal whether the information will have Dated: February 15, 2012. performance. practical utility; (2) Evaluate the accuracy of the agency’s estimate of the Colette Pollard, DATES: Comments Due Date: March 26, 2012. burden of the proposed collection of Departmental Reports Management Officer, information; (3) Enhance the quality, Office of the Chief Information Officer. ADDRESSES: Interested persons are utility, and clarity of the information to [FR Doc. 2012–4154 Filed 2–22–12; 8:45 am] invited to submit comments regarding be collected; and (4) Minimize the BILLING CODE 4210–67–P this proposal. Comments should refer to burden of the collection of information the proposal by name and/or OMB on those who are to respond; including approval Number (2502–0551) and through the use of appropriate DEPARTMENT OF HOUSING AND should be sent to: HUD Desk Officer, automated collection techniques or URBAN DEVELOPMENT Office of Management and Budget, New other forms of information technology, [Docket No. FR–5603–N–13] Executive Office Building, Washington, e.g., permitting electronic submission of DC 20503; fax: 202–395–5806. Email: responses. _ Notice of Submission of Proposed OIRA [email protected] fax: This notice also lists the following Information Collection to OMB; 202–395–5806. information: Multifamily Financial Management FOR FURTHER INFORMATION CONTACT: Title of Proposal: Multifamily Template Colette Pollard., Reports Management Financial Management Template. AGENCY: Office of the Chief Information Officer, QDAM, Department of Housing OMB Approval Number: 2502–0551. Officer, HUD. and Urban Development, 451 Seventh Form Numbers: None. Street, SW., Washington, DC 20410; ACTION: Notice. Description of the Need for the email Colette Pollard at Colette. Information and Its Proposed Use: The SUMMARY: The proposed information [email protected]. or telephone (202) Uniform Financial Reporting Standards collection requirement described below 402–3400. This is not a toll-free number. (UFRS) regulation requires HUD’s has been submitted to the Office of Copies of available documents multifamily housing program Management and Budget (OMB) for submitted to OMB may be obtained participants to submit financial data review, as required by the Paperwork from Ms. Pollard. electronically, using generally accepted Reduction Act. The Department is SUPPLEMENTARY INFORMATION: This accounting principles, in a prescribed soliciting public comments on the notice informs the public that the format. Electronic submissions of this subject proposal. Department of Housing and Urban data require use of a template. HUD uses The Uniform Financial Reporting Development has submitted to OMB a this information to monitor the owners’ Standards (UFRS) regulation requires request for approval of the Information compliance with regulatory HUD’s multifamily housing program collection described below. This notice requirements and to assess fiscal participants to submit financial data is soliciting comments from members of performance. electronically, using generally accepted the public and affecting agencies Frequency of Submission: Annually.

Number of Annual × Hours per respondents responses response = Burden hours

Reporting burden ...... 20,774 1 2.589 53,784

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Total Estimated Burden Hours: notifies the public of funding decisions reporting through the selection of 53,784. made by the Department in a technical assistance (TA) providers for Status: Extension without change of a competition for funding under the this program. curtly approved collection. Notice of Funding Availability (NOFA) The competition was announced in Authority: Section 3507 of the Paperwork for the McKinney-Vento HMIS the HMIS–TA NOFA published October Reduction Act of 1995, 44 U.S.C. 35, as Technical Assistance program. This 17, 2011 (FR–5500–N–29) and closed on amended. announcement contains the names of November 15, 2011. The NOFA allowed Dated: February 15, 2012. the awardees and amounts of the awards for up to $7 million for Homeless made available by HUD. Colette Pollard, Management Information System FOR FURTHER INFORMATION CONTACT: Julie Departmental Reports Management Officer, (HMIS) data collection, reporting and Office of the Chief Information Officer. Hovden, Director, Technical Assistance research, including the Annual Division, Office of Community Planning [FR Doc. 2012–4145 Filed 2–22–12; 8:45 am] Homeless Assessment Report (AHAR) and Development, 451 Seventh Street BILLING CODE 4210–67–P TA activities. Applications were rated SW., Room 7218, Washington, DC and selected for funding on the basis of 20410–7000; telephone (202) 402–4496 selection criteria contained in the DEPARTMENT OF HOUSING AND (this is not a toll-free number). Persons Notice. For the Fiscal Year 2011 URBAN DEVELOPMENT with speech or hearing impairments competition, 4 awards totaling may access this telephone number via $6,809,000 were awarded to 4 distinct [Docket No. FR–5500–FA–29] TTY by calling the toll-free Federal technical assistance providers Information Relay Service during nationwide. Announcement of Funding Awards for working hours at 800–877–8339. For the McKinney-Vento HMIS Technical general information on this and other In accordance with section Assistance (HMIS TA) Fiscal Year 2011 HUD programs, visit HUD’s 102(a)(4)(C) of the Department of Housing and Urban Development AGENCY: Office of the Assistant Homelessness Resource Exchange at Reform Act of 1989 (103 Stat. 1987, 42 Secretary for Community Planning and www.hudhre.info, HUD’s Web site at U.S.C. 3545), the Department is Development, HUD. www.hud.gov, or call Community Connections at 1–800–998–9999. publishing the grantees and the amounts ACTION: Notice of funding awards for SUPPLEMENTARY INFORMATION: The Fiscal of the awards in Appendix A to this HUD’S Fiscal Year 2011 McKinney- document. Vento HMIS Technical Assistance Year 2011 McKinney-Vento HMIS (HMIS–TA). Technical Assistance program was Dated: February 15, 2012. designed to provide technical assistance Clifford D. Taffet, SUMMARY: In accordance with section to communities on the implementation General Deputy Assistant Secretary for 102(a)(4)(C) of the Department of and operation of homeless management Community Planning and Development. Housing and Urban Development information systems, including data Reform Act of 1989, this announcement collection and analysis and performance Appendix A

Recipient State Amount

Abt Associates ...... MA ...... $2,436,500 Cloudburst Consulting Group ...... MD ...... 1,584,000 ICF International ...... VA ...... 1,644,500 National Center on Family Homelessness ...... MA ...... 1,144,000

Total ...... 6,809,000

[FR Doc. 2012–4201 Filed 2–22–12; 8:45 am] Trinity Management Council (TMC). telephone: (530) 623–1800; email: BILLING CODE 4210–67–P The TMC interprets and recommends [email protected]. policy, coordinates and reviews management actions, and provides SUPPLEMENTARY INFORMATION: Under section 10(a)(2) of the Federal Advisory DEPARTMENT OF THE INTERIOR organizational budget oversight. This notice announces a TAMWG meeting, Committee Act (5 U.S.C. App.), this Fish and Wildlife Service which is open to the public. notice announces a meeting of the DATES: TAMWG will meet from 10 a.m. TAMWG. The meeting will include [FWS–R8–FHC–2012–N039; discussion of the following topics: FXFR1334088TWG0W4–123–FF08EACT00] to 4 p.m. on Thursday, March 22, 2012. • ADDRESSES: The meeting will be held at Designated Federal Officer (DFO) Trinity Adaptive Management Working the Weaverville Victorian Inn, 2051 updates, Group Main Street, Weaverville, CA 96093. • Election new chair and vice chair, AGENCY: Fish and Wildlife Service, FOR FURTHER INFORMATION CONTACT: • FACA 101, Interior. Meeting Information: Nancy J. Finley, • Executive Director’s report, U.S. Fish and Wildlife Service, 1655 ACTION: Notice of meeting. • Heindon Road, Arcata, CA 95521; TMC chair report, SUMMARY: The Trinity Adaptive telephone: (707) 822–7201. Trinity River • Flow scheduling. Management Working Group (TAMWG) Restoration Program (TRRP) Completion of the agenda is affords stakeholders the opportunity to Information: Robin Schrock, Executive dependent on the amount of time each give policy, management, and technical Director, Trinity River Restoration item takes. The meeting could end early input concerning Trinity River Program, P.O. Box 1300, 1313 South if the agenda has been completed. (California) restoration efforts to the Main Street, Weaverville, CA 96093;

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Dated: February 16, 2012. What issues were of concern to the O&M assessment rate on May 5, 2011. Nancy Finley, commenter? In addition, in accordance with BIA Field Supervisor, Arcata Fish and Wildlife The commenter raised concerns policy, the BIA held meetings with Office, Arcata, CA. specific to the San Carlos Irrigation Project water users (including the [FR Doc. 2012–4169 Filed 2–22–12; 8:45 am] Project on the proposed rates about the District) to discuss O&M rates and BILLING CODE 4310–55–P following issues: (1) The methodology maintenance needs. Issue: The BIA does not manage for O&M rate setting; and (2) the obligated cash properly, specifically appropriateness of specific O&M budget DEPARTMENT OF THE INTERIOR with regard to the Transcon Contract. items relating to obligated cash, staffing Response: The Transcon Contract Bureau of Indian Affairs levels, encroachment permit fees, re- ended on September 30, 2011, and the survey of the reservoir area/capacity Project de-obligated $56,335.15 of Rate Adjustments for Indian Irrigation table, emergency reserves, cylinder gate unexpended funds in the contract. Projects replacement at Coolidge Dam, and These funds will be carried over as periodic adjustments in Project budgets. available cash for Project use in FY AGENCY: Bureau of Indian Affairs, The Following Comments Are Specific 2012. Interior. to the San Carlos Irrigation Project Issue: The District objects to current ACTION: Notice of rate adjustments. and future staffing levels for the Written comments relating to the Project’s Irrigation System Operators. SUMMARY: The Bureau of Indian Affairs proposed rate adjustment for the San Response: The Project has been (BIA) owns, or has an interest in, Carlos Irrigation Project-Joint Works discussing the Irrigation System irrigation projects located on or (Project) were received by letters dated Operator (ISO) staffing levels with the associated with various Indian July 15, 2011, August 26, 2011, and water users, including the District, in reservations throughout the United November 21, 2011, from the San Carlos recent years in response to the States. We are required to establish Irrigation and Drainage District accidental deaths of two Project ISOs in irrigation assessment rates to recover the (District). The District raised several 2006 and 2010. At the end of the Project costs to administer, operate, maintain, issues in its letters. The BIA’s summary fact finding process for 2010, the Project and rehabilitate these projects. We are of the District’s issues and the BIA’s re-evaluated the ISO staffing levels, notifying you that we have adjusted the responses are provided below. reduced the number of positions from irrigation assessment rates at several of Comment: The BIA’s methodology for four to three, and established the our irrigation projects and facilities to setting the 2013 O&M assessment rate positions at GS 04/05 levels. The reflect current costs of administration, was unreasonable. discussion with the water users on this operation, maintenance, and Response: The methodology used by matter, including the District, helped rehabilitation. the BIA to determine the 2013 O&M the Project to re-evaluate and implement assessment rate was reasonable. Based appropriate measures for ISO staffing. DATES: Effective Date: The irrigation on a review of historical income and The Project is in the process of assessment rates shown in the tables as expenditures, a budget of projected recruiting the vacant ISO positions. The final are effective as of January 1, 2012. income and expenditures is developed Project anticipates an annual savings of FOR FURTHER INFORMATION CONTACT: For approximately two years before the approximately $80,000 from this change details about a particular BIA irrigation O&M assessments are collected and in ISO staffing levels. The proposed project or facility, please use the tables expenses incurred. The BIA relies on O&M budget for 2013 reflects three ISO in the SUPPLEMENTARY INFORMATION financial reports generated by the positions at the Project. The BIA section to contact the regional or local Federal Financial System for reviewing understands that the ISO staffing levels office where the project or facility is past expenditures and projecting a may need to be re-evaluated in 3–5 located. future budget and expenditures. years when rehabilitation of the Project Procurement files and records Joint Works is completed by the District SUPPLEMENTARY INFORMATION: A Notice maintained by the Project are also and the Gila River Indian Community of Proposed Rate Adjustment was reviewed and considered. For example, pursuant to section 203(d) of the published in the Federal Register on with regard to development of the 2013 Arizona Water Settlements Act (Pub. L. September 20, 2011 (76 FR 58293) to budget, the BIA reviewed: (1) The year- 108–451). propose adjustments to the irrigation end reconciled income and expenditure Issue: The BIA should not use O&M assessment rates at several BIA information for 2010; (2) available collections to defray the Project costs for irrigation projects. The public and income and expenditure information for reviewing encroachment permit interested parties were provided an 2011; (3) previous budget projections for requests. opportunity to submit written 2013; and (4) other information relevant Response: Environmental compliance comments during the 60-day period that to potential future Project expenses, activities associated with the Project ended November 21, 2011. such as cost information for O&M responsibilities, such as Did the BIA defer or change any replacement of Coolidge Dam cylinder encroachment permit requests, are proposed rate increases? gates. funded through O&M assessments and The BIA provided the District with collections from the District and from No. draft budget and supporting information Federal appropriations on behalf of the and held budget fact-finding meetings Indian Works. The BIA is legally Did the BIA receive any comments on on November 22, 2010, January 14, obligated to perform these compliance the proposed irrigation assessment rate 2011, February 22, 2011, and March 23, activities and they benefit Project water adjustments? 2011. The Project received feedback users by ensuring that the Written comments were received from the District and other water users environmental effects of Project related to the proposed rate adjustment during these meetings, and the Project activities, are understood. The Project for the San Carlos Irrigation Project for finalized its recommendation to the will continue to use either contracts or 2013. Western Regional Director for the 2013 staff for Federal environmental

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compliance duties in furtherance of its repair services, which was awarded reflect actual expenditures and O&M activities. The Project recently recently for the Project, involves routine unplanned contingencies. The initial proposed a fee for encroachment annual well maintenance and repair and O&M budget cannot be expected to permits and is in the process of not well replacement costs. The BIA remain unchanged because it is finalizing a decision on the proposed believes the reserve funds should be prepared two years in advance of the fee. The Project notes that, historically, maintained as proposed, consistent with fiscal year in which the Project performs encroachment permits involve lands the Guidelines. the actual O&M work. The BIA provides within the District. At the request of the Issue: The amount budgeted for the District with an update on the water users, including the District, the replacement of the Coolidge Dam Project’s budget at nearly every monthly Project is considering permit fees for cylinder gate should be reduced. District Board meeting, at regularly encroachment permits which would Response: Replacing the cylinder scheduled water user meetings, and help defray the Project costs for the gates at Coolidge Dam with a single upon specific request from the District. permits. bulkhead gate is not appropriate. For the 2012 and 2013 O&M budgets, Issue: The BIA should not use O&M Replacing inoperable gates with a the BIA used templates proposed by the collections to pay for the updated area/ bulkhead gate for each tower provides District to display the budget capacity table for San Carlos Reservoir. the greatest security to Project water information. Response: Coolidge Dam (Dam) and users. Using a single bulkhead gate to Does this notice affect me? San Carlos Reservoir (Reservoir) are close both cylinder gates is inadvisable essential features of the Project. The for several reasons: (1) The bulkhead This notice affects you if you own or Project’s water delivery obligations from gate may not fit in both gate towers lease land within the assessable acreage the Dam and Reservoir, pursuant to the because the towers likely do not have of one of our irrigation projects, or if Gila Decree and the Project’s the same dimensions; (2) a crane you have a carriage agreement with one authorizing documents, require an capable of lifting the bulkhead gate may of our irrigation projects. accurate and up-to-date area/capacity not be available locally or within a Where can I get information on the table for the Reservoir. Therefore, the reasonable timeframe; (3) the single regulatory and legal citations in this Project’s use of O&M collections to bulkhead gate could close only one notice? update the Reservoir’s area/capacity conduit at a time; and (4) the road table is an appropriate use of O&M crossing the crest of the dam would You can contact the appropriate collections. need to be closed when the bulkhead office(s) stated in the tables for the Issue: The Project’s emergency reserve gate is removed or installed. irrigation project that serves you, or you fund should be reduced. The Project completed a technical can use the Internet site for the Response: The Project’s emergency review process with the water users, Government Printing Office at reserve fund is within the range including the District, whereby all www.gpo.gov. specified in the Emergency Reserve available technical and cost information What authorizes you to issue this Fund Determination Guidelines in the related to the cylinder gates was notice? August 2008 BIA National Irrigation reviewed and discussed. The Project’s Handbook. The BIA previously reduced next step in the planning process is to Our authority to issue this notice is the reserve fund from $800,000 to update and finalize the detailed vested in the Secretary of the Interior by $400,000 following the transfer of technical specifications and a 5 U.S.C. 301 and the Act of August 14, certain maintenance responsibilities to government cost estimate. These 1914 (38 Stat. 583; 25 U.S.C. 385). The the Joint Control Board. The BIA documents will be used by the Project Secretary has in turn delegated this continues to be responsible for for construction solicitation pursuant to authority to the Assistant Secretary— maintenance of Project wells and the Federal procurement process. Indian Affairs under Part 209, Chapter Coolidge Dam. Replacement of a single Issue: The Project makes material 8.1A, of the Department of the Interior’s well is projected to cost between deviations from approved budgets Departmental Manual. $250,000 and $300,000, and well without providing documentation and Whom can I contact for further replacement locations are being consultation with the District. information? evaluated now based on technical Response: The budget shared by the assessments prepared by the Project and BIA during the Fact Finding process is The following tables are the regional shared with the water users. The not binding on the BIA. The BIA must and project/agency contacts for our contract for well maintenance and update its O&M budget regularly to irrigation projects and facilities:

Project name Project/Agency contacts

Northwest Region Contacts

Stanley Speaks, Regional Director, Bureau of Indian Affairs, Northwest Regional Office, 911 N.E. 11th Avenue, Portland, Oregon 97232–4169, Telephone: (503) 231–6702

Fort Hall Irrigation Project ...... Dean Fox, Superintendent, Fort Hall Agency, P.O. Box 220, Fort Hall, ID 83203–0220, Telephone: (208) 238–2301. Wapato Irrigation Project ...... Edwin Lewis, Project Administrator, Wapato Irrigation Project, P.O. Box 220, Wapato, WA 98951– 0220, Telephone: (509) 877–3155.

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Project name Project/Agency c6ontacts

Rocky Mountain Region Contacts

Ed Parisian, Regional Director, Bureau of Indian Affairs, Rocky Mountain Regional Office, 316 North 26th Street, Billings, Montana 59101, Telephone: (406) 247–7943.

Blackfeet Irrigation Project ...... Stephen Pollock, Superintendent, Greg Tatsey, Irrigation Project Manager, Box 880, Browning, MT 59417, Telephones: (406) 338–7544, Superintendent, (406) 338–7519, Irrigation Project Manager. Crow Irrigation Project ...... Vianna Stewart, Superintendent, Vacant, Irrigation Project Manager, P.O. Box 69, Crow Agency, MT 59022, Telephones: (406) 638–2672, Superintendent, (406) 638–2863, Irrigation Project Manager. Fort Belknap Irrigation Project ...... Cliff Hall, Superintendent, Vacant, Irrigation Project Manager, (Project operations and management contracted to Tribes), R.R.1, Box 980, Harlem, MT 59526, Telephones: (406) 353–2901, Super- intendent, (406) 353–8454, Irrigation Project Manager (Tribal Office). Fort Peck Irrigation Project ...... Rhonda Knudsen, Superintendent, P.O. Box 637, Poplar, MT 59255, Huber Wright, Acting Irrigation Project Manager, 602 6th Avenue North, Wolf Point, MT 59201, Telephones: (406) 768–5312, Su- perintendent, (406) 653–1752, Irrigation Project Manager. Wind River Irrigation Project ...... Ed Lone Fight, Superintendent, Vacant, Irrigation Project Manager, P.O. Box 158, Fort Washakie, WY 82514, Telephones: (307) 332–7810, Superintendent, (307) 332–2596, Irrigation Project Man- ager.

Southwest Region Contacts

William T. Walker, Regional Director, Bureau of Indian Affairs, Southwest Regional Office, 1001 Indian School Road, Albuquerque, New Mexico 87104, Telephone: (505) 563–3100.

Pine River Irrigation Project ...... John Waconda, Superintendent, Reginald Howe, Irrigation Systems Operator, Irrigation Engineer, P.O. Box 315, Ignacio, CO 81137–0315, Telephones: (970) 563–4511, Superintendent, (970) 563–9484, Irrigation Engineer.

Western Region Contacts

Bryan Bowker, Regional Director, Bureau of Indian Affairs, Western Regional Office, 2600 N. Central Ave., 4th Floor Mailroom, Phoenix, Arizona 85004, Telephone: (602) 379–6600.

Colorado River Irrigation Project ...... Janice Staudte, Superintendent, Gary Colvin, Acting Irrigation Project Manager, 12124 1st Avenue, Parker, AZ 85344, Telephone: (928) 669–7111. Duck Valley Irrigation Project ...... Joseph McDade, Superintendent, 1555 Shoshone Circle, Elko, NV 89801, Telephone: (775) 738– 0569. Fort Yuma Irrigation Project ...... Irene Herder, Superintendent, 256 South Second Avenue, Suite D, Yuma, AZ 85364, Telephone: (928) 782–1202. San Carlos Irrigation Project Joint Works Ferris Begay, Acting Project Manager, Clarence Begay, Irrigation Manager, P.O. Box 250, Coolidge, AZ 85228, Telephone: (520) 723–6203. San Carlos Irrigation Project Indian Cecilia Martinez, Superintendent, Joe Revak, Supervisory General Engineer, Pima Agency, Land Works. Operations, P.O. Box 8, Sacaton, AZ 85247, Telephone: (520) 562–3326, Telephone: (520) 562– 3372. Uintah Irrigation Project ...... Dinah Peltier, Acting Superintendent, Dale Thomas, Irrigation Manager, P.O. Box 130, Fort Duchesne, UT 84026, Telephone: (435) 722–4300, Telephone: (435) 722–4341. Walker River Irrigation Project ...... Athena Brown, Superintendent, 311 E. Washington Street, Carson City, NV 89701, Telephone: (775) 887–3500.

What irrigation assessments or charges where we recover costs of applicable. An asterisk immediately are adjusted by this notice? administering, operating, maintaining, following the name of the project notes and rehabilitating them. The table also where the 2012 rates are different from The rate table below contains the contains the final rates for the 2012 the 2011 rates. current rates for all irrigation projects season and subsequent years where

Final 2011 Final 2012 Project name Rate category rate rate

Fort Hall Irrigation Project * ...... Basic per acre ...... $42.00 $45.50 Minimum Charge per tract ...... 31.50 32.50 Fort Hall Irrigation Project—Minor Units * ...... Basic per acre ...... 22.50 23.50 Minimum Charge per tract ...... 31.50 32.50 Fort Hall Irrigation Project—Michaud * ...... Basic per acre ...... 43.00 45.00 Pressure per acre ...... 59.50 62.00 Minimum Charge per tract ...... 31.50 32.50 Wapato Irrigation Project—Toppenish/Simcoe Units * ...... Minimum Charge for per bill ...... 17.00 20.00 Basic per acre ...... 17.00 20.00 Wapato Irrigation Project—Ahtanum Units * ...... Minimum Charge per bill ...... 17.00 20.00 Basic per acre ...... 17.00 20.00 Wapato Irrigation Project—Satus Unit * ...... Minimum Charge for per bill ...... 63.00 65.00 ‘‘A’’ Basic per acre ...... 63.00 65.00 ‘‘B’’ Basic per acre ...... 70.00 70.00

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Final 2011 Final 2012 Project name Rate category rate rate

Wapato Irrigation Project—Additional Works ...... Minimum Charge per bill ...... 67.00 67.00 Basic per acre ...... 67.00 67.00 Wapato Irrigation Project—Water Rental ...... Minimum Charge ...... 72.00 72.00 Basic per acre ...... 72.00 72.00

Rocky Mountain Region Rate Table

Blackfeet Irrigation Project ...... Basic-per acre ...... 19.00 19.00 Crow Irrigation Project—Willow Creek O&M (includes Agency, Lodge Basic-per acre ...... 22.80 23.30 Grass #1, Lodge Grass #2, Reno, Upper Little Horn, and Forty Mile Units) *. Crow Irrigation Project—All Others (includes Bighorn, Soap Creek, and Basic-per acre ...... 22.50 23.00 Pryor Units) *. Crow Irrigation Two Leggins Drainage District ...... Basic-per acre ...... 2.00 2.00 Fort Belknap Irrigation Project ...... Basic-per acre ...... 14.75 14.75 Fort Peck Irrigation Project ...... Basic-per acre ...... 24.70 24.70 Wind River Irrigation Project ...... Basic-per acre ...... 20.00 20.00 Wind River Irrigation Project—LeClair District * (see Note #1) ...... Basic-per acre ...... 21.00 20.00 Wind River Irrigation Project—Crow Heart Unit ...... Basic-per acre ...... 14.00 14.00 Wind River Irrigation Project—Riverton Valley Irrigation District ...... Basic-per acre ...... 16.00 16.00

Southwest Region Rate Table

Pine River Irrigation Project ...... Minimum Charge per tract ...... 50.00 50.00 Basic-per acre ...... 15.00 15.00

Project name Rate category Final 2011 rate Final 2012 rate Final 2013 rate

Western Region Rate Table

Colorado River Irrigation Basic per acre up to 5.75 $54.00 ...... $54.00 ...... To be determined. Project. acre-feet. Excess Water per acre- $17.00 ...... $17.00. foot over 5.75 acre-feet. Duck Valley Irrigation Basic per acre ...... $5.30 ...... $5.30. Project. Fort Yuma Irrigation Basic per acre up to 5.0 $86.00 ...... $86.00—BIA rate is final, Project (See Note #2). acre-feet. Reclamation rate to be determined, see Note #2. Excess Water per acre- $14.00 ...... $14.00—BIA rate is final, foot over 5.0 acre-feet. Reclamation rate to be determined, see Note #2. Basic per acre up to 5.0 $86.00 ...... $86.00—BIA rate is final, acre-feet (Ranch 5). Reclamation rate to be determined, see Note #2. San Carlos Irrigation Basic per acre ...... $25.00 ...... $30.00 ...... $30.00. Project (Joint Works) * (See Note #3).

Proposed 2012—2013 Construction Water Rate Schedule:

Off Project Construction .... On Project Construction— On Project Construction— Gravity Water. Pump Water

Administrative Fee ...... $300.00 ...... $300.00 ...... $300.00 Usage Fee ...... $250.00 per month ...... No Fee ...... $100.00 per acre-foot. Excess Water Rate † ...... $5 per 1000 gal ...... No charge ...... No charge.

† The excess water rate applies to all water used in excess of 50,000 gallons in any one month.

San Carlos Irrigation Basic per acre ...... $68.00 ...... $73.00 ...... To be determined. Project (Indian Works) * (See Note #4). Uintah Irrigation Project * ... Basic per acre ...... $15.00 ...... $16.00. Minimum Bill ...... $25.00 ...... $25.00. Walker River Irrigation Indian per acre ...... $22.00 ...... $25.00. Project *. non-Indian per acre ...... $22.00 ...... $25.00. * Notes irrigation projects where rates are proposed for adjustment. Note #1—The O&M rate varies yearly based upon the budget submitted by the LeClair District. Note #2—The O&M rate for the Fort Yuma Irrigation Project has two components. The first component is the O&M rate established by the Bu- reau of Reclamation (BOR), the owner and operator of the Project. The BOR rate for 2012 is yet to be determined. The second component is for the O&M rate established by BIA to cover administrative costs including billing and collections for the Project. The 2012 BIA rate has been re- duced to $1.50/acre. The rates shown include the 2011 Reclamation rate and the 2012 BIA rate.

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Note #3—The 2012 rate was established by final notice in the FEDERAL REGISTER on May 9, 2011 (76 FR 26759). In addition, a Construction Water Rate Schedule for the San Carlos Irrigation Project—Joint Works is now being formally established. The rate schedule establishes the fees assessed for use of irrigation water for non-irrigation purposes. Note #4—The 2012 O&M rate for the San Carlos Irrigation Project—Indian Works has three components. The first component is the O&M rate established by the San Carlos Irrigation Project—Indian Works, the owner and operator of the Project; this rate is proposed to be $35 per acre. The second component is for the O&M rate established by the San Carlos Irrigation Project—Joint Works and is determined to be $30 per acre. The third component is the O&M rate established by the San Carlos Irrigation Project Joint Control Board and is proposed to be $8 per acre.

Consultation and Coordination With million per year. The rule does not have Data Quality Act Tribal Governments (Executive Order a significant or unique effect on State, 13175) local, or tribal governments or the In developing this notice, we did not private sector. Therefore, the conduct or use a study, experiment, or To fulfill its consultation survey requiring peer review under the responsibility to tribes and tribal Department of the Interior (Department) Information Quality Act (Pub. L. 106– organizations, BIA communicates, is not required to prepare a statement 554). coordinates, and consults on a containing the information required by continuing basis with these entities on the Unfunded Mandates Reform Act (2 Dated: February 9, 2012. issues related to water delivery, water U.S.C. 1531 et seq.). Larry Echo Hawk, availability, and costs of administration, Takings (Executive Order 12630) Assistant Secretary, Indian Affairs. operation, maintenance, and [FR Doc. 2012–4200 Filed 2–22–12; 8:45 am] rehabilitation of projects that concern The Department has determined that them. This is accomplished at the these rate adjustments do not have BILLING CODE 4310–W7–P individual irrigation project by Project, significant ‘‘takings’’ implications. The Agency, and Regional representatives, rate adjustments do not deprive the DEPARTMENT OF THE INTERIOR as appropriate, in accordance with local public, state, or local governments of protocol and procedures. This notice is rights or property. National Park Service one component of our overall coordination and consultation process Federalism (Executive Order 13132) to provide notice to these entities when [NPS–WASO–NRNHL–0212–9442; 2200– The Department has determined that 3200–665] we adjust irrigation assessment rates. these rate adjustments do not have Actions Concerning Regulations That significant Federalism effects because National Register of Historic Places; Significantly Affect Energy Supply, they will not affect the States, the Notification of Pending Nominations Distribution, or Use (Executive Order relationship between the national and Related Actions 13211) government and the States, or the The rate adjustments will have no distribution of power and Nominations for the following adverse effects on energy supply, responsibilities among various levels of properties being considered for listing distribution, or use (including a government. or related actions in the National Register were received by the National shortfall in supply, price increases, and Civil Justice Reform (Executive Order increase use of foreign supplies) as this 12988) Park Service before January 28, 2012. rate adjustment is implemented. This is Pursuant to section 60.13 of 36 CFR part a notice for rate adjustments at BIA- In issuing this rule, the Department 60, written comments are being owned and operated irrigation projects, has taken the necessary steps to accepted concerning the significance of except for the Fort Yuma Irrigation eliminate drafting errors and ambiguity, the nominated properties under the Project. The Fort Yuma Irrigation Project minimize potential litigation, and National Register criteria for evaluation. is owned and operated by the Bureau of provide a clear legal standard for Comments may be forwarded by United Reclamation with a portion serving the affected conduct, as required by section States Postal Service, to the National Fort Yuma Reservation. 3 of Executive Order 12988. Register of Historic Places, National Regulatory Planning and Review Paperwork Reduction Act of 1995 Park Service, 1849 C St. NW., MS 2280, (Executive Order 12866) Washington, DC 20240; by all other These rate adjustments do not affect carriers, National Register of Historic These rate adjustments are not a the collections of information which Places, National Park Service, 1201 Eye significant regulatory action and do not have been approved by the Office of St. NW., 8th floor, Washington, DC need to be reviewed by the Office of Information and Regulatory Affairs, 20005; or by fax, 202–371–6447. Written Management and Budget under Office of Management and Budget, or faxed comments should be submitted Executive Order 12866. under the Paperwork Reduction Act of by March 9, 2012. Before including your Regulatory Flexibility Act 1995. The OMB Control Number is address, phone number, email address, These rate adjustments are not a rule 1076–0141 and expires December 31, or other personal identifying for the purposes of the Regulatory 2012. information in your comment, you Flexibility Act because they establish ‘‘a National Environmental Policy Act should be aware that your entire rule of particular applicability relating comment—including your personal to rates.’’ 5 U.S.C. 601(2). The Department has determined that identifying information—may be made these rate adjustments do not constitute publicly available at any time. While Unfunded Mandates Reform Act of a major Federal action significantly you can ask us in your comment to 1995 affecting the quality of the human withhold your personal identifying These rate adjustments do not impose environment and that no detailed information from public review, we an unfunded mandate on State, local, or statement is required under the National tribal governments in the aggregate, or Environmental Policy Act of 1969 (42 on the private sector, of more than $130 U.S.C. 4321–4370(d)).

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cannot guarantee that we will be able to St. Louis Independent city Chester County do so. Reber Place Historic District, Roughly National Teacher’s Normal and Business bounded by Arsenal St., Kingshighway College Administration Building, 158 E. J. Paul Loether, Blvd., Southwest Ave. and alley E. of Main St., Henderson, 12000116 Chief, National Register of Historic Places/ Hereford St., Saint Louis (Independent Gibson County National Historic Landmarks Program. City), 12000100 Gibson County Training School, 1041 S. COLORADO NEBRASKA Harris St., Milan, 12000117 Costilla County Douglas County Hamilton County Capilla de Viejo San Acacio, (Culebra River Capitol Garage, 202 N. 19th St., Omaha, Highland Park Methodist Episcopal Church, Villages of Costilla County MPS) 14152 12000102 South, 1918 Union Ave., Chattanooga, Cty. Rd. 14.8, Viejo San Acacio, 12000091 12000118 St. Richard’s Catholic School and Rectory, Iglesia de San Pedro y San Pablo, (Culebra 4318 & 4320 Fort St., Omaha, 12000103 Rutherford County River Villages of Costilla County MPS) Murfreesboro Veterans Administration 11423 Cty. Rd. 21, San Pedro, 12000090 Lancaster County Hospital Historic District, (United States Iglesia de la Inmaculada Concepcion, Beatrice Creamery Company Lincoln Plant, Second Generation Veterans Hospitals) (Culebra River Villages of Costilla County 726 L St., Lincoln, 12000104 3400 Lebanon Pike, Murfreesboro, MPS) 21529 Cty. Rd. P.6, Charma, 12000119 Madison County 12000089 Old First Presbyterian Church and Old City FLORIDA Mathewson—Gerecke House, 1202 W. Cemetery, 390 E. Vine St., Murfreesboro, Norfolk Ave., Norfolk, 12000105 12000120 Monroe County Morrill County Williamson County Sombrero Key Light, (Light Stations of the United States MPS) Offshore approx. 5.5 Greenwood Stage Station, Address Fewkes Group Archeological Site (Boundary mi. SSW. of Marathon, 12000092 Restricted, Bridgeport, 12000106 Increase), (Mississippian Cultural Resources of the Central Basin (AD 900– GEORGIA Nuckolls County 1450) MPS) 8400 Moores Ln., Brentwood, 12000121 Muscogee County Superior City Hall and Auditorium, 450 N. Commercial, Superior, 12000107 VIRGINIA Mott—Fox—Huguley House, 2027 6th Ave., Columbus, 12000093 NEW JERSEY Amherst County IOWA Camden County Clifford—New Glasgow Historic District, Patrick Henry Hwy. & Fletchers Level Rd., Benton County Macedonia African Methodist Episcopal Clifford, 12000122 Church, 261–265 Spruce St., Camden City, Iowa Canning Company Seed House 12000108 Fauquier County Building, 201 1st Ave., Vinton, 12000094 Morris County Old Denton, 7064 Young Rd., The Plains, Clayton County 12000123 Millington Schoolhouse, 1802 Long Hill Rd. Elkader Downtown Historic District, (Elkader [FR Doc. 2012–4130 Filed 2–22–12; 8:45 am] (Long Hill Township), Millington, Downtown MPS) Portions of 100 & 200 BILLING CODE 4312–51–P blks. of Main St. & side streets., Elkader, 12000109 12000095 OHIO Linn County Ross County INTERNATIONAL TRADE COMMISSION Bohemian Commercial Historic District, Chillicothe Veterans Administration (Cedar Rapids, Iowa MPS) Roughly Hospital, (United States Second Generation [Investigation Nos. 701–TA–302 and 731– bounded by 9th Ave. SE., 4th St. SE., 14th Veterans Hospitals) 17273 OH 104, TA–454 (Third Review)] Ave. SE., 15th Ave. SW., C St. SW., 17th Chillicothe, 12000110 Ave. SW. & A St. SW., Cedar Rapids, Fresh and Chilled Atlantic Salmon 12000096 OKLAHOMA From Norway Cleveland County MARYLAND Determination Downtown Norman Historic District Baltimore County 1 (Boundary Increase), Roughly bounded by On the basis of the record developed Anneslie Historic District, Roughly bounded Webster, Gray, Porter, Eufaula, James in the subject five-year reviews, the by York, Maplewood, & Windwood Rds., & Garner, & Comanche, Norman, 12000111 United States International Trade Regester Ave., Towson, 12000097 Commission (Commission) determines, Custer County MASSACHUSETTS pursuant to section 751(c) of the Tariff Heerwald Site, Address Restricted, Clinton, Act of 1930 (19 U.S.C. 1675(c)), that Essex County 12000112 revocation of the countervailing duty American Woolen Company Townhouses, 1– Kay County order and antidumping duty order on 14 Wood Way, 1–14 Washington Way, 1– fresh and chilled Atlantic salmon from 14 Prospect Way, Lawrence, 12000098 Santa Fe Depot, Near jct. of S. 1st & W. Norway would not be likely to lead to Oklahoma, Ponca City, 12000113 Suffolk County continuation or recurrence of material Osage County Terminal Storage Warehouse District, 267– injury to an industry in the United 281 Medford St., 40 & 50 Terminal St., Drummond, Fred & Adeline, House, 305 N. States within a reasonably foreseeable 2 Boston, 12000099 Price Ave., Hominy, 12000114 time.

MISSOURI TENNESSEE 1 The record is defined in sec. 207.2(f) of the Polk County Carroll County Commission’s Rules of Practice and Procedure (19 CFR 207.2(f)). Dimmitt, George, Memorial Hospital, 102 S. Court Theatre, 155 Court Sq., Huntingdon, 2 Commissioner David S. Johanson did not Bolivar Rd., Humansville, 12000101 12000115 participate in these five-year reviews.

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Background subparts A, D, E, and F (19 CFR part Commission should reach in the The Commission instituted these 207). reviews. Comments are due on or before reviews on January 3, 2011 (76 FR 166) DATES: Effective Date: February 6, 2012. March 15, 2012 and may not contain and determined on April 8, 2011 that it FOR FURTHER INFORMATION CONTACT: new factual information. Any person would conduct full reviews (76 FR Barbara Elkins (202–205–2253), Office that is neither a party to the five-year 22422, April 21, 2011). Notice of the of Investigations, U.S. International reviews nor an interested party may scheduling of the Commission’s reviews Trade Commission, 500 E Street SW., submit a brief written statement (which and of a public hearing to be held in Washington, DC 20436. Hearing- shall not contain any new factual connection therewith was given by impaired persons can obtain information) pertinent to the reviews by posting copies of the notice in the Office information on this matter by contacting March 15, 2012. However, should the of the Secretary, U.S. International the Commission’s TDD terminal on 202– Department of Commerce extend the Trade Commission, Washington, DC, 205–1810. Persons with mobility time limit for its completion of the final and by publishing the notice in the impairments who will need special results of its reviews, the deadline for Federal Register on July 1, 2011 (76 FR assistance in gaining access to the comments (which may not contain new 38698). The hearing was held in Commission should contact the Office factual information) on Commerce’s Washington, DC, on November 30, 2011, of the Secretary at 202–205–2000. final results is three business days after and all persons who requested the General information concerning the the issuance of Commerce’s results. If opportunity were permitted to appear in Commission may also be obtained by comments contain business proprietary person or by counsel. accessing its internet server (http:// information (BPI), they must conform The Commission transmitted its www.usitc.gov). The public record for with the requirements of sections 201.6, determination in these reviews to the these reviews may be viewed on the 207.3, and 207.7 of the Commission’s Secretary of Commerce on February 16, Commission’s electronic docket (EDIS) rules. Please be aware that the 2011. The views of the Commission are at http://edis.usitc.gov. Commission’s rules with respect to contained in USITC Publication 4303 SUPPLEMENTARY INFORMATION: electronic filing have been amended. (February 2012), entitled Fresh and Background.—On February 6, 2012, The amendments took effect on Chilled Atlantic Salmon from Norway: the Commission determined that the November 7, 2011. See 76 FR 61937 Investigation Nos. 701–TA–302 and domestic interested party group 731–TA–454 (Third Review). response to its notice of institution (76 (Oct. 6, 2011) and the newly revised Commission’s Handbook on E–Filing, Issued: February 17, 2012. FR 67473, November 1, 2011) of the subject five-year reviews was adequate available on the Commission’s Web site By order of the Commission. at http://edis.usitc.gov. James R. Holbein, and that the respondent interested party group response was inadequate. The Also, in accordance with sections Secretary to the Commission. Commission did not find any other 201.16(c) and 207.3 of the Commission’s [FR Doc. 2012–4199 Filed 2–22–12; 8:45 am] circumstances that would warrant rules, each document filed by a party to BILLING CODE 7020–02–P conducting full reviews.1 Accordingly, the review must be served on all other the Commission determined that it parties to the review (as identified by would conduct expedited reviews INTERNATIONAL TRADE either the public or APO service list as pursuant to section 751(c)(3) of the Act. COMMISSION appropriate), and a certificate of service Staff report.—A staff report must accompany the document (if you containing information concerning the [Investigation Nos. 731–TA–865–867 are not a party to the review you do not subject matter of these reviews will be (Second Review)] need to serve your response). The placed in the nonpublic record on Secretary will not accept a document for March 12, 2012 and made available to Stainless Steel Butt-Weld Pipe Fittings filing without a certificate of service. From Italy, Malaysia, and the persons on the Administrative Philippines; Scheduling of Expedited Protective Order service list for these Determination.—The Commission has Five-Year Reviews reviews. A public version will be issued determined to exercise its authority to thereafter, pursuant to section extend the review period by up to 90 AGENCY: United States International 207.62(d)(4) of the Commission’s rules. days pursuant to 19 U.S.C. 1675(c)(5)(B). Trade Commission. Written submissions.—As provided in Authority: These reviews are being ACTION: Notice. section 207.62(d) of the Commission’s conducted under authority of title VII of the rules, interested parties that are parties Tariff Act of 1930; this notice is published SUMMARY: The Commission hereby gives to the reviews and that have provided pursuant to section 207.62 of the notice of the scheduling of expedited individually adequate responses to the Commission’s rules. reviews pursuant to section 751(c)(3) of notice of institution,2 and any party the Tariff Act of 1930 (19 U.S.C. other than an interested party to the By order of the Commission. 1675(c)(3)) (the Act) to determine reviews may file written comments with Issued: February 17, 2012. whether revocation of the antidumping the Secretary on what determination the James R. Holbein, duty orders on stainless steel butt-weld Secretary to the Commission. pipe fittings from Italy, Malaysia, and 1 A record of the Commissioners’ votes, the [FR Doc. 2012–4196 Filed 2–22–12; 8:45 am] the Philippines would be likely to lead Commission’s statement on adequacy, and any to continuation or recurrence of material individual Commissioner’s statements will be BILLING CODE 7020–02–P available from the Office of the Secretary and at the injury within a reasonably foreseeable Commission’s Web site. time. For further information 2 The Commission has found the responses concerning the conduct of these reviews submitted by Core Pipe Products, Inc.; Ezeflow USA and rules of general application, consult Inc.-Flowline Division; Shaw Alloy Piping Products, Inc.; Taylor Forge Stainless, Inc.; and by the Commission’s Rules of Practice and Filmag Italia, srl to be individually adequate. Procedure, part 201, subparts A through Comments from other interested parties will not be E (19 CFR part 201), and part 207, accepted (see 19 CFR 207.62(d)(2)).

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INTERNATIONAL TRADE the Commission determined that it Secretary will not accept a document for COMMISSION would conduct an expedited review filing without a certificate of service. 2 pursuant to section 751(c)(3) of the Act. Authority: This review is being conducted [Investigation No. 731–TA–472 (Third Staff report.—A staff report Review)] under authority of title VII of the Tariff Act containing information concerning the of 1930; this notice is published pursuant to Silicon Metal From China; Scheduling subject matter of the review will be section 207.62 of the Commission’s rules. placed in the nonpublic record on of an Expedited Five-Year Review By order of the Commission. March 1, 2012, and made available to AGENCY: United States International persons on the Administrative Issued: February 17, 2012. Trade Commission. Protective Order service list for this James R. Holbein, ACTION: Notice. review. A public version will be issued Secretary to the Commission. thereafter, pursuant to section [FR Doc. 2012–4197 Filed 2–22–12; 8:45 am] SUMMARY: The Commission hereby gives 207.62(d)(4) of the Commission’s rules. BILLING CODE 7020–02–P notice of the scheduling of an expedited Written submissions.—As provided in review pursuant to section 751(c)(3) of section 207.62(d) of the Commission’s the Tariff Act of 1930 (19 U.S.C. rules, interested parties that are parties DEPARTMENT OF JUSTICE 1675(c)(3)) (the Act) to determine to the review and that have provided whether revocation of the antidumping individually adequate responses to the Notice of Lodging of Consent Decree duty order on silicon metal from China notice of institution,3 and any party Under the Comprehensive would be likely to lead to continuation other than an interested party to the Environmental Response, or recurrence of material injury within review may file written comments with Compensation, and Liability Act a reasonably foreseeable time. For the Secretary on what determination the further information concerning the Commission should reach in the review. Notice is hereby given that on conduct of this review and rules of Comments are due on or before March February 14, 2012, the United States general application, consult the 6, 2012 and may not contain new factual lodged a proposed Consent Decree with Commission’s Rules of Practice and information. Any person that is neither Defendants Bradley Mining Company Procedure, part 201, subparts A through a party to the five-year review nor an (‘‘BMC’’) and Frederick Bradley, Trustee E (19 CFR part 201), and part 207, interested party may submit a brief for the Worthen Bradley Family Trust subparts A, D, E, and F (19 CFR part written statement (which shall not (‘‘Bradley Trust’’), in United States v. 207). contain any new factual information) Bradley Mining Company, et al., Civil Action No. 3:08–CV–03968 TEH (N.D. DATES: Effective Date: February 6, 2012. pertinent to the review by March 6, 2012. However, should the Department Cal.), with respect to the Sulphur Bank FOR FURTHER INFORMATION CONTACT: Mercury Mine Superfund Site in Lake Barbara Elkins (202–205–2250), Office of Commerce extend the time limit for its completion of the final results of its County, California (‘‘Sulphur Bank of Investigations, U.S. International review, the deadline for comments Site’’), and with Defendant BMC in a Trade Commission, 500 E Street SW., (which may not contain new factual consolidated case, United States v. Washington, DC 20436. Hearing- information) on Commerce’s final Bradley Mining Company, Civil Action impaired persons can obtain results is three business days after the No. 3:08–CV–05501 TEH (N.D. Cal.), information on this matter by contacting issuance of Commerce’s results. If with respect to the Stibnite Mine Site in the Commission’s TDD terminal on 202– comments contain business proprietary Valley County, Idaho (‘‘Stibnite Mine 205–1810. Persons with mobility information (BPI), they must conform Site’’). impairments who will need special with the requirements of sections 201.6, The proposed Consent Decree assistance in gaining access to the 207.3, and 207.7 of the Commission’s resolves the following claims: (1) on Commission should contact the Office rules. Please be aware that the August 19, 2008, the United States, on of the Secretary at 202–205–2000. Commission’s rules with respect to behalf of the United States General information concerning the electronic filing have been amended. Environmental Protection Agency Commission may also be obtained by The amendments took effect on (‘‘EPA’’), filed a complaint under accessing its Internet server (http:// November 7, 2011. See 76 FR 61937 section 107 of the Comprehensive www.usitc.gov). The public record for (Oct. 6, 2011) and the newly revised Environmental Response, this review may be viewed on the Commission’s Handbook on E–Filing, Compensation, and Liability Act Commission’s electronic docket (EDIS) available on the Commission’s Web site (‘‘CERCLA’’), 42 U.S.C. 9607, against at http://edis.usitc.gov. at http://edis.usitc.gov. BMC and Bradley Trust, seeking SUPPLEMENTARY INFORMATION: Also, in accordance with sections recovery of response costs incurred by Background.—On February 6, 2012, 201.16(c) and 207.3 of the Commission’s EPA related to releases of hazardous the Commission determined that the rules, each document filed by a party to substances at the Sulphur Bank Site; domestic interested party group the review must be served on all other and (2) on September 26, 2008, the response to its notice of institution (76 parties to the review (as identified by United States, on behalf of EPA and the FR 67476, November 1, 2011) of the either the public or APO service list as United States Department of Agriculture subject five-year review was adequate appropriate), and a certificate of service Forest Service (‘‘Forest Service’’), filed a and that the respondent interested party must accompany the document (if you complaint under CERCLA section 107 group response was inadequate. The are not a party to the review you do not against BMC seeking recovery of Commission did not find any other need to serve your response). The response costs incurred by EPA and the circumstances that would warrant Forest Service related to the releases of 1 conducting a full review. Accordingly, 2 Chairman Deanna Tanner Okun is not hazardous substances at the Stibnite participating in this review. Mine Site. The proposed Consent 1 A record of the Commissioners’ votes, the 3 The Commission has found the response Decree also resolves claims in the Commission’s statement on adequacy, and any submitted by Globe Metallurgical Inc. to be individual Commissioner’s statements will be individually adequate. Comments from other Sulphur Bank case brought by the Elem available from the Office of the Secretary and at the interested parties will not be accepted (see 19 CFR Tribe against BMC, the Bradley Trust, Commission’s Web site. 207.62(d)(2)). and the United States for cost recovery

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under CERCLA section 107(a) as well as Justice, Washington, DC 20044–7611 or Washington, DC 20530 (telephone: 202– damages for injury to, destruction of, or by faxing or emailing a request to 514–2481), on the Department of loss of natural resources related to the ‘‘Consent Decree Copy’’ Justice’s Web site at http:// Sulphur Bank Site and the costs of any ([email protected]), fax no. www.usdoj.gov/atr, and at the Office of natural resource damage assessments (202) 514–0097, phone confirmation the Clerk of the United States District under CERCLA section 107(a)(4)(c). number (202) 514–5271. In requesting a Court for the District of Colorado. Finally, the Consent Decree resolves copy from the Consent Decree Library, Copies of these materials may be counterclaims against the United States please enclose a check in the amount of obtained from the Antitrust Division brought by BMC and Bradley Trust in $17.75 (without appendices) or $32.50 upon request and payment of the the Sulphur Bank case and by BMC in (with appendices) (25 cents per page copying fee set by Department of Justice the Stibnite Mine case. reproduction cost) payable to the U.S. regulations. Financial information provided by the Treasury or, if by email or fax, forward Public comment is invited within 60 Settling Defendants indicated an a check in that amount to the Consent days of the date of this notice. Such inability to pay. However, pursuant to Decree Library at the stated address. comments, and responses thereto, will the proposed Consent Decree, the be published in the Federal Register Henry Friedman, United States will receive a payment of and filed with the Court. Comments Assistant Chief, Environmental Enforcement $505,000 from BMC’s insurer, a should be directed to William H. percentage of future insurance Section, Environment and Natural Resources Division. Stallings, Chief, Transportation, Energy recoveries and future income, and the [FR Doc. 2012–4114 Filed 2–22–12; 8:45 am] and Agriculture Section, Antitrust proceeds from the future sale of parcels Division, Department of Justice, 450 BILLING CODE 4410–15–P of land. In addition, Defendant Bradley Fifth Street NW., Suite 8000, Trust will transfer property to the Elem Washington, DC 20530, (telephone: Tribe. In exchange, the proposed DEPARTMENT OF JUSTICE 202–514–9323). Consent Decree provides Bradley Trust Patricia A. Brink, with a covenant not to sue and Antitrust Division contribution protection for the Sulphur Director of Civil Enforcement. Bank Site, and provides BMC with a United States v. SG Interests I LTD., et IN THE UNITED STATES DISTRICT covenant not to sue and contribution al.; Proposed Final Judgment and COURT FOR THE DISTRICT OF protection for the Sulphur Bank Site, Competitive Impact Statement COLORADO the Stibnite Mine Site, and five additional mining sites: the Mt. Diablo Notice is hereby given pursuant to the Civil Action No. No. 12–cv–00395–RPM– Mercury Mine in Contra Costa County, Antitrust Procedures and Penalties Act, MEH California; the Springfield Scheelite 15 U.S.C. 16(b)–(h), that a proposed UNITED STATES OF AMERICA, U.S. Mine in Valley County, Idaho; the IMA Final Judgment, Stipulation and Department of Justice, Antitrust Division, 450 5th Street NW., Suite 8000, Washington, DC Mine in Lemhi County, Idaho; the Bretz Competitive Impact Statement have been filed with the United States 20530, Plaintiff, v. SG INTERESTS I, LTD., Mine in Malheur County, Oregon; and SG INTERESTS VII, LTD., 2 Houston Center, the Opalite Mine in Malheur County, District Court for the District of 909 Fannin, Suite 2600, Houston, TX 77010, Oregon. Finally, settling federal Colorado in United States of America v. and GUNNISON ENERGY CORPORATION, agencies will pay $7.2 million for EPA’s SG Interests I, Ltd. et al., Civil Action 1801 Broadway, Suite 1200, Denver, CO response costs at the Sulphur Bank Site No. 12–CV–00395–RPM–MEH. On 80202, Defendants. February 15, 2012, the United States and will receive a covenant not to sue COMPLAINT and contribution protection for the filed a civil antitrust Complaint alleging that the SG Interests I Ltd. and SG The United States of America, acting under Sulphur Bank Site and the Stibnite the direction of the Attorney General of the Mine Site. Interests VII Ltd. (SGI) and Gunnison United States, brings this civil antitrust The Department of Justice will Energy Corporation (GEC) agreed to action under Section 4 of the Sherman Act, receive, for a period of thirty (30) days jointly bid for natural gas leases in the as amended, 15 U.S.C. 4, and Section 4A of from the date of this publication, Ragged Mountain Area of Western the Clayton Act, as amended, 15 U.S.C. 15a, comments relating to the Consent Colorado, which were auctioned by the to obtain equitable and legal remedies against Decree. Comments should be addressed United States Department of the Defendants Gunnison Energy Corporation to the Assistant Attorney General, Interior’s Bureau of Land Management (‘‘GEC’’), and SG Interests I, Ltd. and SG Interests VII, Ltd. (collectively, ‘‘SGI’’) for Environment and Natural Resources in February and May 2005, thereby their violation of Section 1 of the Sherman Division, and either emailed to violating Section 1 of the Sherman Act, Act, as amended, 15 U.S.C. 1. [email protected] or 15 U.S.C. 1. The proposed Final Prior to 2005, GEC and SGI were separately mailed to P.O. Box 7611, U.S. Judgment, filed the same day as the engaged in exploration and development of Department of Justice, Washington, DC Complaint, requires SGI and GEC to natural gas resources in the Ragged Mountain 20044–7611, and should refer to United each pay $275,000 to the United States Area (or ‘‘RMA’’) of Western Colorado.1 States v. Bradley Mining Company, et to settle the antitrust action and a Recognizing that they would be the primary al., D.J. Ref. 90–11–3–07593. related qui tam case also filed in United competitors to acquire three natural gas The Consent Decree may be examined leases for exploration and development on States District Court for the District of federal lands in the RMA that were to be at U.S. EPA Region IX at 75 Hawthorne Colorado, United States of America ex auctioned by the Bureau of Land Street, San Francisco, California 94105. rel. Anthony B. Gale v. Gunnison Energy Management (‘‘BLM’’) in February 2005, GEC During the public comment period, the Corporation, Civil Action No. 09–CV– and SGI executed a Memorandum of Consent Decree may also be examined 02471–RBJ–KLM. Understanding (the ‘‘MOU’’) on the eve of the on the following Department of Justice Copies of the Complaint, proposed Web site: http://www.usdoj.gov/enrd/ Final Judgment and Competitive Impact 1 For purposes of this Complaint, we define the Consent_Decrees.html. A copy of the Statement are available for inspection at Ragged Mountain Area as covering roughly a region encompassed by the Townships 10S through 12S Consent Decree may also be obtained by the Department of Justice, Antitrust and Ranges 89W through 91W, as designated by the mail from the Consent Decree Library, Division, Antitrust Documents Group, Public Land Survey System, comprising portions of P.O. Box 7611, U.S. Department of 450 Fifth Street NW., Suite 1010, Delta, Gunnison, Mesa and Pitkin Counties.

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auction pursuant to which they agreed not to royalty on the value of production from the Ragged Mountain Area offered by the BLM at compete for the leases. Instead, under the leases. Revenues from BLM leases flow to the the February auction. SGI and GEC would MOU, SGI would bid at the auction and, if United States Treasury. jointly set a maximum price for SGI to bid they won, assign a fifty percent interest in the 9. At the conclusion of the auction, each for the three leases. If SGI successfully acquired leases to GEC. The parties extended successful bidder must submit a lease bid acquired the leases, it would assign a fifty the MOU to include a fourth lease auctioned form, which constitutes a legally binding percent interest to GEC at cost. by the BLM in May 2005. As a result of the lease offer for the amount of the winning bid. 17. At the February auction, SGI bid for MOU, the United States received By signing the form, the bidder also certifies and obtained the three BLM leases covered substantially less revenue from the sale of that it is qualified to bid and did not engage by the MOU. GEC attended the auction, but, leases than it would have had SGI and GEC in collusion. honoring the terms of the MOU, did not bid. competed at the auctions. 10. In advance of each auction, each SGI obtained COC068350, COC068351 and regional BLM office publishes a Notice of COC068352 for $72 per acre, $30 per acre I. DEFENDANTS Competitive Lease Sale identifying the lease and $22 per acre, respectively. 1. SG Interests I, Ltd. and SG Interests VII, parcels to be offered at the quarterly auction. 18. On or about May 10, 2005, SGI and Ltd. are Texas limited partnerships with their Private parties may nominate lands for BLM GEC amended the MOU to include an headquarters in Houston, Texas. The to consider offering at auction by submitting additional lease, COC068490 (comprising 643 managing partner of both of the limited an ‘‘expression of interest.’’ acres), in the Ragged Mountain Area set to be partnerships is Gordy Oil Company, a Texas auctioned by the BLM on May 12, 2005. The corporation. SGI was formed for the purpose IV. THE UNLAWFUL AGREEMENT parties agreed to bid as high as $300 per acre of developing natural gas resources in the 11. In 2001, SGI and GEC began for this parcel. Though the defendants had Ragged Mountain Area. SGI holds, in whole independently acquiring and developing gas recommenced their discussions regarding or in part, interests in federal leases on leases in the Ragged Mountain Area. Prior to litigation settlement and a development approximately 40,000 acres within the 2003, their activities generally focused on collaboration in March 2005, they had not yet Ragged Mountain Area. It also owns, in different parts of the Ragged Mountain Area, been able to reach terms of an agreement. whole or in part, interests in and is the with SGI acquiring leases on the eastern side 19. On May 12, 2005, SGI bid for and operator for natural gas pipelines in the of the area (which is now designated by BLM obtained COC068490 pursuant to the terms of Ragged Mountain Area. as the Bull Mountain Unit Area) while GEC the MOU. Again, GEC attended the auction 2. GEC is a Delaware corporation with its acquired leases along the southern boundary. but did not bid. SGI won the lease with a bid principal place of business in Denver, However, over the course of 2003 and 2004, of only $2 per acre. Colorado. GEC holds, in whole or in part, their interests began to overlap as each 20. The MOU was not part of a interests in federal leases on approximately sought pipelines and leases held by BDS procompetitive or efficiency enhancing 52,000 acres within the Ragged Mountain International, LLC and affiliated entities collaboration. The defendants did not reach Area. It also owns, in whole or in part, (collectively, ‘‘BDS’’) and as the BLM leased an agreement to engage in a broad interests in and is the operator for natural gas additional parcels. collaboration to jointly acquire and develop pipelines in the Ragged Mountain Area. 12. Conflicting efforts by SGI and GEC to leases and pipelines in the Ragged Mountain Area until the summer of 2005. The MOU II. JURISDICTION AND VENUE acquire assets held by BDS resulted in litigation between Defendants in 2004. In was not ancillary to the latter agreement. 3. The United States files this Complaint September 2004, SGI submitted expressions 21. As a result of the MOU, the United under Section 4 of the Sherman Act, 15 of interest to the BLM for additional lands States, through the BLM, received less U.S.C. 4, and Section 4A of the Clayton Act, within the Ragged Mountain Area, including revenue that it would have received had SGI 15 U.S.C. 15a, seeking equitable relief and parcels adjacent to leases held by GEC. and GEC competed for leases in the Ragged damages from Defendants’ violation of 13. In October 2004, GEC and SGI met to Mountain Area at the February and May 2005 Section 1 of the Sherman Act, 15 U.S.C. 1. discuss the prospect of settling the litigation auctions. Pursuant to the MOU, SGI and GEC 4. The Court has jurisdiction over this and entering into a collaboration to develop successfully avoided bidding against one matter pursuant to 15 U.S.C. 4 and 15a and another for leases covering approximately the Ragged Mountain Area. The potential 28 U.S.C. 1331 and 1337. 3650 acres. If SGI and GEC had bid against collaboration contemplated joint acquisition 5. Defendants waive any objection to venue each other, the winner would have paid BLM of the BDS assets, improvements to the and personal jurisdiction in this judicial a higher price. district for the purpose of this Complaint. existing BDS pipelines, and joint 6. SGI’s and GEC’s activities are in the flow development of new pipelines to serve the V. VIOLATION ALLEGED of and substantially affect interstate area. These discussions, however, quickly 22. The United States hereby incorporates commerce. foundered. paragraphs 1 through 21. 14. On or about December 23, 2004, the 23. The MOU between SGI and GEC III. FEDERAL OIL AND GAS LEASE BLM announced a Notice of Competitive unreasonably restrained competition for the AUCTIONS Lease Sale that included three tracts in the acquisition of BLM leases in violation of 7. The BLM manages natural resources on Ragged Mountain Area, COC068350 Section 1 of the Sherman Act, 15 U.S.C. § 1. federal lands, including rights to subsurface (comprising 320 acres), COC068351 24. The United States was injured as a oil and natural gas. The BLM sells onshore (comprising 1280 acres) and COC068352 result of the unlawful agreement in that it oil and gas leases to private parties, granting (comprising 1404 acres). The three leases received lower bid payments for leases at the leaseholders the exclusive right to explore covered areas contained in SGI’s September BLM’s February and May 2005 auctions than and develop oil and gas deposits on their 2004 expression of interest. The auction was it would have absent the illegal agreement. leases. The initial term of a BLM onshore oil set to occur on February 10, 2005. and gas lease is ten years. 15. Both SGI and GEC were independently VI. PRAYER FOR RELIEF 8. Private parties, such as oil and gas interested in certain of the tracts that would Wherefore, Plaintiff prays: companies, typically acquire onshore oil and be auctioned and both likely would have 25. That the Court adjudge and decree that gas leases on federal lands at auctions which bid—and bid against each other—at the the MOU constitutes an illegal restraint of each regional BLM office conducts as often February auction. On or about February 2, trade in violation of Section 1 of the Sherman as quarterly. Auctions are conducted orally 2005, SGI and GEC embarked on discussions Act; and openly, with each lease starting at a to forestall competing against one another for 26. That the Court award Plaintiff treble minimum bid of two dollars per acre. the three BLM leases to be auctioned. These damages for the losses it incurred as a result Bidding on a lease ends when no other discussions resulted in the drafting of the of Defendants’ conduct; person attending the auction bids a higher written MOU by attorneys for SGI and GEC 27. That Plaintiff shall have such other price than the then outstanding offer. In that was executed by the parties on February relief, including equitable monetary relief, as addition to the amount of the bid, the 8, 2005, just two days before the February 10, the nature of this case may require and is just winning bidder must make annual rental 2005 auction. and proper to prevent the recurrence of the payments during the life of the lease and, if 16. Under the MOU, only SGI would bid alleged violation and to dissipate the development is successful, pay a 12.5 percent at the auction for the three leases in the anticompetitive effects of the violation; and

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28. That Plaintiff recover the costs of this IN THE UNITED STATES DISTRICT stipulated that the proposed Final action. COURT FOR THE DISTRICT OF Judgment may be entered after DATED: February 15, 2012. COLORADO compliance with the APPA. Entry of the Respectfully submitted, Civil Action No. 12–cv–00395–RPM–MEH proposed Final Judgment would terminate this action, except that the FOR PLAINTIFF UNITED STATES UNITED STATES OF AMERICA, Plaintiff, v. SG INTERESTS I, LTD., SG INTERESTS Court would retain jurisdiction to s/Sharis A. Pozen VII, LTD., and GUNNISON ENERGY construe, modify, or enforce the Sharis A. Pozen, CORPORATION, Defendants. provisions of the proposed Final Acting Assistant Attorney General. Judgment and to punish violations s/Leslie C. Overton COMPETITIVE IMPACT STATEMENT thereof. Leslie C. Overton, Plaintiff United States of America Deputy Assistant Attorney General. (‘‘United States’’), pursuant to Section II. DESCRIPTION OF THE EVENTS GIVING RISE TO THE ALLEGED s/Patricia A. Brink 2(b) of the Antitrust Procedures and Patricia A. Brink, Penalties Act (‘‘APPA’’ or ‘‘Tunney VIOLATION Director of Civil Enforcement. Act’’), 15 U.S.C. 16(b)–(h), files this A. Defendants Competitive Impact Statement relating s/William H. Stallings SG Interests I, Ltd. and SG Interests to the proposed Final Judgment William H. Stallings, VII, Ltd. are Texas limited partnerships submitted for entry in this civil antitrust Chief, Transportation, Energy & Agriculture with their headquarters in Houston, proceeding. Section. Texas. The managing partner both of the s/Kathleen S. O’Neill I. NATURE AND PURPOSE OF THE limited partnerships is Gordy Oil Kathleen S. O’Neill, PROCEEDING Company, a Texas corporation. SGI was Assistant Chief, Transportation, Energy & formed for the purpose of developing Agriculture Section. On February 15, 2012, the United States filed a civil antitrust complaint natural gas resources in the Ragged s/Sarah L. Wagner Mountain Area. SGI holds, in whole or Sarah L. Wagner, against Defendant Gunnison Energy Corporation (‘‘GEC’’) and Defendants SG in part, interests in federal leases on J. Richard Doidge, approximately 40,000 acres within the J. Chandra Mazumdar. Interests I, Ltd. and SG Interests VII, Ltd. (‘‘SGI’’) alleging that GEC and SGI Ragged Mountain Area. It also owns, in U.S. Department of Justice, Antitrust whole or in part, interests in and is the Division, Transportation, Energy & violated Section 1 of the Sherman Act, Agriculture Section, 450 Fifth Street NW, 15 U.S.C. 1. operator for natural gas pipelines in the Suite 8000, Washington, DC 20530. Prior to 2005, GEC and SGI were Ragged Mountain Area. Telephone: (202) 305–8915. separately engaged in exploration and GEC is a Delaware corporation with FAX: (202) 616–2441. development of natural gas resources in its principal place of business in E-mail: [email protected]. the Ragged Mountain Area (or ‘‘RMA’’) Denver, Colorado. GEC holds, in whole Attorneys for Plaintiff United States. of Western Colorado.2 Recognizing that or in part, interests in federal leases on they would be the primary competitors approximately 52,000 acres within the CERTIFICATE OF SERVICE to acquire three natural gas leases for Ragged Mountain Area. It also owns, in I hereby certify that on February 15, exploration and development on federal whole or in part, interests in and is the 2012, I mailed or served a copy of the lands in the RMA that were to be operator for natural gas pipelines in the Complaint by certified mail to the auctioned by the Bureau of Land Ragged Mountain Area. following: Management (‘‘BLM’’) in February 2005, B. Oil and Gas Interests on Federal L. Poe Leggette, GEC and SGI executed a Memorandum Lands Fulbright & Jaworksi, LLP, of Understanding (the ‘‘MOU’’) on the Republic Plaza, 370 Seventeenth Street, eve of the auction pursuant to which The federal government owns Suite 2150, Denver, CO 80202. they agreed not to compete for the hundreds of millions of acres of land in Telephone: (303) 801–2700. leases. Instead, under the MOU, SGI the United States. The BLM manages FAX: (303) 801–2777. would bid at the auction and then natural resources on federal lands, Email: [email protected]. assign a fifty percent interest in the including rights to subsurface oil and Attorney for Defendants SG Interests I, acquired leases to GEC. The parties natural gas. The BLM sells onshore oil Ltd. and SG Interests VII, Ltd. extended the MOU to include a fourth and gas leases to private parties, Timothy R. Beyer, lease auctioned by the BLM in May granting leaseholders the exclusive right Brownstein Hyatt Farber Schreck, LLP, 2005. As a result of the MOU, the to explore and develop oil and gas 410 Seventeenth Street, Suite 2200, United States received substantially less deposits found on their leased land. The Denver, CO 80202. revenue from the sale of leases than it initial term of a BLM onshore oil and Telephone: (303) 223–1116. would have had SGI and GEC competed gas lease is ten years. FAX: (303) 223–0916. at the auctions. Private parties, such as oil and gas Email: [email protected]. At the same time the Complaint was companies, typically acquire onshore oil Attorney for Defendant Gunnison filed, the United States also filed an and gas leases on federal lands at Energy Corporation. agreed-upon proposed Final Judgment auctions which each regional BLM that would remedy the violation by office conducts as often as quarterly. In s/Sarah L. Wagner llllllllllll Sarah L. Wagner, having SGI and GEC each pay damages advance of each auction, the regional of $275,000 to the United States. The BLM office publishes a Notice of U.S. Department of Justice, Antitrust Division, Transportation, Energy & United States and Defendants have Competitive Lease Sale identifying the Agriculture Section, 450 Fifth Street NW., lease parcels to be offered at the Suite 8000, Washington, DC 20530. 2 For purposes of this case, we define the Ragged quarterly auction. Private parties may Mountain Area as covering roughly a region nominate lands for BLM to consider Telephone: (202) 305–8915. encompassed by the Townships 10S thru 12S and FAX: (202) 616–2441. Ranges 89W thru 91W, as designated by the Public offering at auction by submitting an Email: [email protected]. Land Survey System, comprising portions of Delta, ‘‘expression of interest.’’ Auctions are Attorney for Plaintiff United States. Gunnison, Mesa and Pitkin Counties. conducted orally and openly, with each

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lease starting at a minimum bid of two pipelines to serve the area. These On May 12, 2005, SGI bid for and dollars per acre. Bidding on a lease ends discussions, however, quickly obtained COC068490 pursuant to the when no other person attending the foundered. terms of the MOU. Again, GEC attended auction bids a higher price than the then On or about December 23, 2004, BLM the auction but did not bid. SGI won the outstanding offer. In addition to the announced a Notice of Competitive lease with a bid of only $2 per acre. amount of the bid, the winning bidder Lease Sale that included three tracts in As a result of the MOU, the United must make annual rental payments the Ragged Mountain Area, COC068350 States, through the BLM, received less during the life of the lease and, if (comprising 320 acres), COC068351 revenue that it would have received had development is successful, pay a royalty (comprising 1280 acres) and COC068352 SGI and GEC competed for leases in the on the value of production from the (comprising 1404 acres). The three Ragged Mountain Area at the February leases. Revenues from BLM leases flow leases covered areas contained in SGI’s and May 2005 auctions. Pursuant to the to the United States Treasury. September 2004 expression of interest. MOU, SGI and GEC successfully At the conclusion of an auction, each The auction was set to occur on avoided bidding against one another for successful bidder must submit a lease February 10, 2005. leases covering approximately 3650 bid form, which constitutes a legally Both SGI and GEC were acres. If SGI and GEC had bid against binding lease offer for the amount of the independently interested in certain of each other, the winner would have paid winning bid. By signing the form, the the tracts that would be auctioned and BLM a higher price. bidder also certifies that it is qualified both likely would have bid—and bid III. EXPLANATION OF THE to bid and that the bid was ‘‘arrived at against each other—at the February PROPOSED FINAL JUDGMENT independently’’ and ‘‘tendered without auction. On or about February 2, 2005, The proposed Final Judgment relates collusion with any other bidder for the SGI and GEC embarked on discussions to a qui tam action captioned United purpose of restricting competition.’’ to forestall competing against one A lease grants the leaseholder the States ex rel. Anthony B. Gale v. another for the three BLM leases to be Gunnison Energy Corporation, et al., exclusive right for ten years to drill for, auctioned. These discussions resulted in extract, remove and dispose of the oil Civil Action No. 09–cv–02471–RBJ– the drafting of the written MOU by and gas on the leased land. A lessee may KLM (D. Colo.), and settlements with attorneys for SGI and GEC that was assign a lease, or a portion of a lease, to the United States Attorney’s Office for executed by the parties on February 8, another party with approval from the the District of Colorado. Both this action 2005, just two days before the February BLM. Oil and natural gas leases expire and the qui tam action arise from 10, 2005 auction. The MOU was not part at the end of their ten-year term, but common facts related to BLM auctions of a procompetitive or efficiency may be extended for as long as the lease in February 2005 and May 2005 and the enhancing collaboration. The has at least one well capable of anticompetitive MOU. Defendants did not reach an agreement producing oil or natural gas. For violations of Section 1 of the to engage in a broad collaboration to Sherman Act, the United States may C. The Alleged Violation jointly acquire and develop leases and seek equitable relief, including equitable In 2001, SGI and GEC began pipelines in the Ragged Mountain Area monetary remedies. See United States v. independently acquiring and until the summer of 2005. The MOU KeySpan Corp., 763 F. Supp. 2d 633, developing gas leases in the Ragged was not ancillary to the latter 638–641 (S.D.N.Y. 2011). Further, where Mountain Area. Prior to 2003, their agreement. the United States is an injured party by activities generally focused on different Under the MOU, only SGI would bid a Section 1 violation, it may seek parts of the Ragged Mountain Area, with at the auction for the three leases in the damages. 15 U.S.C. 15a. SGI acquiring leases on the eastern side Ragged Mountain Area offered by the The proposed Final Judgment requires of the area (which BLM has designated BLM at the February auction. SGI and GEC and SGI to each pay $275,000, for as the Bull Mountain Unit Area) while GEC would jointly set a maximum price a total of $550,000, to the United States GEC acquired leases along the southern for SGI to bid for the three leases. If SGI within 10 days of entry of the Final boundary. However, over the course of successfully acquired the leases, it Judgment pursuant to instructions 2003 and 2004, their interests began to would assign a fifty percent interest to provided by the United States Attorney overlap as each sought pipelines and GEC at cost. for the District of Colorado. These leases held by BDS International, LLC At the February auction, SGI bid for payments will satisfy claims that the and affiliated entities (collectively, and obtained the three BLM leases United States has against GEC and SGI ‘‘BDS’’) and as the BLM leased covered by the MOU. GEC attended the under Section 1 of the Sherman Act, as additional parcels. Conflicting efforts by auction, but, honoring the terms of the alleged in this action, and the False SGI and GEC to acquire assets held by MOU, did not bid. SGI obtained Claims Act, as set forth in the separate BDS resulted in litigation between COC068350, COC068351 and agreements reached between GEC and Defendants in 2004. COC068352 for $72 per acre, $30 per SGI and the United States Attorney’s In September 2004, SGI submitted acre and $22 per acre, respectively. Office for the District of Colorado expressions of interest to the BLM for On or about May 10, 2005, SGI and (which are Attachments 1 and 2 to the additional lands within the Ragged GEC amended the MOU to include an proposed Final Judgment).3 Mountain Area, including parcels additional lease, COC068490 As a result of the unlawful agreement adjacent to leases held by GEC. (comprising 643 acres), in the Ragged in restraint of trade between GEC and In October 2004, GEC and SGI met to Mountain Area set to be auctioned by SGI, the BLM received lower bid discuss the prospect of settling the the BLM on May 12, 2005. The parties payments. The payment of damages to litigation and entering into a agreed to bid as high as $300 per acre the United States reflects the likely collaboration to develop the Ragged for this parcel. Though the Defendants Mountain Area. The potential had recommenced their discussions 3 The proposed Final Judgment does not preclude collaboration contemplated joint regarding litigation settlement and a the United States from bringing an action against GEC or SGI for any antitrust claims arising from acquisition of the BDS assets, development collaboration in March their acquisition and operation of the Ragged improvements to the existing BDS 2005, they had not yet been able to Mountain pipeline, as agreed in the Stipulation at pipelines, and joint development of new reach terms of an agreement. paragraph 4.

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additional bid revenue that the BLM The comments and the response of the benefit, if any, to be derived from a would have received had SGI and GEC United States will be filed with the determination of the issues at trial. acted as independent competitors at the Court and published in the Federal 15 U.S.C. 16(e)(1)(A) & (B); see generally February and May 2005 auctions. Register. KeySpan Corp., 763 F. Supp. 2d at 637– Written comments should be Requiring GEC and SGI to pay damages 38 (discussing Tunney Act standards); submitted to: William H. Stallings, in these circumstances will protect the United States v. SBC Commc’, Inc., public interest by deterring them and Chief, Transportation, Energy and 489 F. Supp. 2d 1 (D.D.C. 2007) other parties from entering into similar Agriculture Section, Antitrust Division, (assessing standards for public interest anticompetitive agreements in the United States Department of Justice, 450 determination). In considering these future.4 Fifth Street NW., Suite 8000, Washington, DC 20530. statutory factors, the court’s inquiry is IV. REMEDIES AVAILABLE TO necessarily a limited one as the United The proposed Final Judgment provides POTENTIAL PRIVATE LITIGANTS States is entitled to ‘‘broad discretion to that the Court retains jurisdiction over settle with the Defendant within the Section 4 of the Clayton Act, 15 this action, and the parties may apply to reaches of the public interest.’’ United U.S.C. 15, provides that any person who the Court for any order necessary or States v. Microsoft Corp., 56 F.3d 1448, has been injured as a result of conduct appropriate for the modification, 1461 (D.C. Cir. 1995). prohibited by the antitrust laws may interpretation, or enforcement of the bring suit in federal court to recover Final Judgment. Under the APPA a court considers, three times the damages the person has among other things, the relationship suffered, as well as costs and reasonable VI. ALTERNATIVES TO THE between the remedy secured and the attorneys’ fees. Entry of the proposed PROPOSED FINAL JUDGMENT specific allegations set forth in the Final Judgment will neither impair nor The United States considered, as an United States’ complaint, whether the assist the bringing of any private alternative to the proposed Final decree is sufficiently clear, whether antitrust damage action. Under the Judgment, a full trial on the merits enforcement mechanisms are sufficient, provisions of Section 5(a) of the Clayton against Defendants. The United States is and whether the decree may positively Act, 15 U.S.C. 16(a), the proposed Final satisfied, however, that the relief harm third parties. See Microsoft, 56 Judgment has no prima facie effect in contained in the proposed Final F.3d at 1458–62. With respect to the any subsequent private lawsuit that may Judgment remedies the violation of the adequacy of the relief secured by the be brought against Defendants. Sherman Act alleged in the Complaint. decree, the court’s function is ‘‘not to Thus, the proposed Final Judgment determine whether the proposed V. PROCEDURES AVAILABLE FOR would achieve all or substantially all of [d]ecree results in the balance of rights MODIFICATION OF THE PROPOSED the relief the United States would have and liabilities that is the one that will FINAL JUDGMENT obtained through litigation, but avoids best serve society, but only to ensure The United States and Defendants the time, expense, and uncertainty of a that the resulting settlement is within have stipulated that the proposed Final full trial on the merits of the Complaint. the reaches of the public interest.’’ Judgment may be entered by the Court VII. STANDARD OF REVIEW UNDER KeySpan, 763 F. Supp. 2d at 637 after compliance with the provisions of THE APPA FOR THE PROPOSED (quoting United States v. Alex Brown & the APPA, provided that the United FINAL JUDGMENT Sons, Inc., 963 F. Supp. 235, 238 States has not withdrawn its consent. (S.D.N.Y. 1997) (internal quotations The APPA conditions entry upon the The Clayton Act, as amended by the omitted)). In making this determination, Court’s determination that the proposed APPA, requires that proposed consent ‘‘[t]he [c]ourt is not permitted to reject Final Judgment is in the public interest. judgments in antitrust cases brought by the proposed remedies merely because The APPA provides a period of at the United States be subject to a sixty- the court believes other remedies are least sixty (60) days preceding the day comment period, after which the preferable. [Rather], the relevant inquiry effective date of the proposed Final court shall determine whether entry of is whether there is a factual foundation Judgment within which any person may the proposed Final Judgment ‘‘is in the for the government’s decision such that submit to the United States written public interest.’’ 15 U.S.C. 16(e)(1). In its conclusions regarding the proposed comments regarding the proposed Final making that determination, the court is settlement are reasonable.’’ Id. at 637–38 Judgment. Any person who wishes to directed to consider: (quoting United States v. Abitibi- comment should do so within sixty (60) (A) the competitive impact of such Consolidated Inc., 584 F. Supp. 2d 162, days of the date of publication of this judgment, including termination of 165 (D.D.C. 2008)).5 The government’s Competitive Impact Statement in the alleged violations, provisions for predictions about the efficacy of its Federal Register, or the last date of enforcement and modification, duration remedies are entitled to deference.6 publication in a newspaper of the of relief sought, anticipated effects of summary of this Competitive Impact alternative remedies actually 5 United States v. Bechtel Corp., 648 F.2d 660, Statement, whichever is later. All considered, whether its terms are 666 (9th Cir. 1981) (‘‘The balancing of competing comments received during this period ambiguous, and any other competitive social and political interests affected by a proposed considerations bearing upon the antitrust consent decree must be left, in the first will be considered by the United States instance, to the discretion of the Attorney Department of Justice, which remains adequacy of such judgment that the General.’’). See generally Microsoft, 56 F.3d at 1461 free to withdraw its consent to the court deems necessary to a (discussing whether ‘‘the remedies [obtained in the proposed Final Judgment at any time determination of whether the consent decree are] so inconsonant with the allegations judgment is in the public interest; and charged as to fall outside of the ‘reaches of the prior to the Court’s entry of judgment. public interest’ ’’). (B) the impact of entry of such 6 Microsoft, 56 F.3d at 1461 (noting the need for 4 In 2005, GEC and SGI paid bids totaling judgment upon competition in the courts to be ‘‘deferential to the government’s approximately $94,000 for the four leases they relevant market or markets, upon the predictions as to the effect of the proposed acquired pursuant to the MOU, resulting in an public generally and individuals remedies’’); United States v. Archer-Daniels- average per acre price of approximately $25. By Midland Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003) paying an additional $550,000, GEC and SGI will alleging specific injury from the (noting that the court should grant due respect to have been required to pay approximately $175 per violations set forth in the complaint the United States’ prediction as to the effect of acre, seven times its initial bid amount. including consideration of the public Continued

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Courts have greater flexibility in prompt and less costly settlement [email protected]; Timothy R. approving proposed consent decrees through the consent decree process.’’ Beyer, [email protected]. than in crafting their own decrees 119 Cong. Rec. 24,598 (1973) (statement s/Sarah L. Wagner/ lllllllllll following a finding of liability in a of Senator Tunney). Rather, the Sarah L. Wagner, litigated matter. ‘‘[A] proposed decree procedure for the public interest U.S. Department of Justice, Antitrust must be approved even if it falls short determination is left to the discretion of Division, Transportation, Energy & of the remedy the court would impose the court, with the recognition that the Agriculture Section, 450 Fifth Street NW., on its own, as long as it falls within the court’s ‘‘scope of review remains Suite 8000, Washington, DC 20530. range of acceptability or is ‘within the sharply proscribed by precedent and the Telephone: (202) 305–8915. reaches of public interest.’ ’’ United nature of Tunney Act proceedings.’’ FAX: (202) 616–2441. Email: [email protected]. States v. Am. Tel. & Tel. Co., 552 F. SBC Commc’ns, 489 F. Supp. 2d at 11.7 Supp. 131, 151 (D.D.C. 1982) (citations Attorney for Plaintiff United States. VIII. DETERMINATIVE DOCUMENTS omitted) (quoting United States v. IN THE UNITED STATES DISTRICT Gillette Co., 406 F. Supp. 713, 716 (D. In formulating the term of the COURT FOR THE DISTRICT OF Mass. 1975)), aff’d sub nom. Maryland proposed Final Judgment that requires COLORADO v. United States, 460 U.S. 1001 (1983); GEC and SGI to each pay $275,000 to see also United States v. Alcan the United States in satisfaction of Civil Action No. 12–cv–00395–RPM–MEH Aluminum Ltd., 605 F. Supp. 619, 622 claims that the United States has against UNITED STATES OF AMERICA, Plaintiff, (W.D. Ky. 1985) (approving the consent each Defendant under this antitrust v. SG INTERESTS I, LTD., SG INTERESTS VII, LTD., and GUNNISON ENERGY decree even though the court would cause of action and the False Claims CORPORATION, Defendants. have imposed a greater remedy). To Act, the United States considered two meet this standard, the United States documents to be determinative FINAL JUDGMENT ‘‘need only provide a factual basis for documents within the meaning of the Whereas Plaintiff, United States of concluding that the settlements are APPA: (1) the Settlement Agreement America, filed its Complaint alleging reasonably adequate remedies for the dated December 9, 2011 between the that Defendants Gunnison Energy alleged harms.’’ SBC Commc’ns, 489 F. United States Attorney’s Office for the Corporation (‘‘GEC’’) and SG Interests I, Supp. 2d at 17. District of Colorado, SGI, and Anthony Ltd. and SG Interests VII, Ltd. Moreover, the court’s role under the Gale. This agreement settled False (collectively ‘‘SGI’’) violated Section 1 APPA is limited to reviewing the Claims Act claims between the United of the Sherman Act, 15 U.S.C. 1, and remedy in relationship to the violations States, SGI, and Anthony Gale in Civil Plaintiff and Defendants, through their that the United States has alleged in its Action 09–cv–02471–RBJ–KLM (D. respective attorneys, have consented to Complaint, and does not authorize the Colo.). A copy of this document is the entry of this Final Judgment without court to ‘‘construct [its] own attached hereto as Attachment 1. (2) The trial or final adjudication of any issue of hypothetical case and then evaluate the Settlement Agreement dated February fact or law, for settlement purposes decree against that case.’’ Microsoft, 56 14, 2012 between the United States only, and without this Final Judgment F.3d at 1459; KeySpan, 763 F. Supp. 2d Attorney’s Office for the District of constituting any evidence against or an at 638 (‘‘A court must limit its review Colorado, GEC, and Anthony Gale. This admission by GEC or SGI with respect to the issues in the complaint * * *.’’). agreement settled False Claims Act to any allegation contained in the Because the ‘‘court’s authority to review claims between the United States, GEC, Complaint. the decree depends entirely on the and Anthony Gale in Civil Action 09– Now, therefore, before the taking of government’s exercising its cv–02471–RBJ–KLM (D. Colo.). A copy any testimony and without trial or final prosecutorial discretion by bringing a of this document is attached hereto as adjudication of any issue of fact or law case in the first place,’’ it follows that Attachment 2. herein, and upon consent of the parties ‘‘the court is only authorized to review Dated: February 15, 2012 hereto, it is hereby ordered, adjudged, the decree itself,’’ and not to ‘‘effectively and decreed: redraft the complaint’’ to inquire into Respectfully submitted, s/Sarah L. Wagner/ lllllllllll I. JURISDICTION other matters that the United States did Sarah L. Wagner, not pursue. Microsoft, 56 F.3d at 1459– U.S. Department of Justice, Antitrust This Court has jurisdiction of the 60. Division, Transportation, Energy & subject matter of this action and each of In its 2004 amendments, Congress Agriculture Section, 450 Fifth Street NW., the parties consenting hereto. The made clear its intent to preserve the Suite 8000, Washington, DC 20530. Complaint states a claim upon which practical benefits of utilizing consent Telephone: (202) 305–8915. relief may be granted to the United decrees in antitrust enforcement, adding FAX: (202) 616–2441. States against GEC and SGI under the unambiguous instruction that Email: [email protected]. Section 1 of the Sherman Act, 15 U.S.C. ‘‘[n]othing in this section shall be Attorney for Plaintiff United States. § 1. construed to require the court to CERTIFICATE OF SERVICE conduct an evidentiary hearing or to II. APPLICABILITY require the court to permit anyone to I hereby certify that on February 15, This Final Judgment applies to GEC intervene.’’ 15 U.S.C. 16(e)(2). This 2012, I electronically filed the foregoing and SGI and to all other persons in language effectuates what Congress with the Clerk of Court using the CM/ active concert or participation with any intended when it enacted the Tunney ECF system which will send notification of them who have received actual notice Act in 1974, as Senator Tunney of such filing to the following email of this Final Judgment by personal explained: ‘‘[t]he court is nowhere addresses: L. Poe Leggette, service or otherwise. compelled to go to trial or to engage in III. PAYMENT extended proceedings which might have 7 See United States v. Enova Corp., 107 F. Supp. 2d 10, 17 (D.D.C. 2000) (noting that the ‘‘Tunney GEC and SGI shall each pay to the the effect of vitiating the benefits of Act expressly allows the court to make its public interest determination on the basis of the United States within ten (10) days of the proposed remedies, its perception of the market competitive impact statement and response to entry of this Final Judgment the amount structure, and its views of the nature of the case). comments alone’’). of two hundred seventy-five thousand

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dollars ($275,000), as set forth in the collection requirements and minimize 1 (the DOL claims procedure regulation) settlement agreements attached hereto the reporting burden on the public and and update such processes in as Attachments 1 and 2, to satisfy claims helps the public understand the accordance with standards established that the United States has against each Department’s information collection by the Secretary of Labor in paragraph defendant under both the False Claims requirements and provide the requested (b)(2)(ii) of the regulations. Act and the Sherman Act. No additional data in the desired format. Currently, Also, PHS Act section 2719 and the payments are called for under this Final the Employee Benefits Security interim final regulations provide that Judgment. Administration (EBSA) is soliciting group health plans and issuers offering comments on the revision of the group health insurance coverage must IV. RETENTION OF JURISDICTION information collection provisions of its comply either with a State external This Court retains jurisdiction to interim final rule at 29 CFR Part review process or a Federal review enable any of the parties to this Final 2590.715–2719, Internal Claims and process. The regulations provide a basis Judgment to apply to this Court at any Appeals and External Review Processes for determining when plans and issuers time for further orders and directions as for Non-grandfathered Plans, that was must comply with an applicable State may be necessary or appropriate to carry published in the Federal Register on external review process and when they out or construe this Final Judgment, to June 24, 2011 (76 FR 37208). A copy of must comply with the Federal external modify or terminate any of its the information collection request (ICR) review process. provisions, to enforce compliance, and may be obtained by contacting the office The claims procedure regulation to punish violations of its provisions. listed in the ADDRESSES section of this imposes information collection notice. requirements as part of the reasonable V. PUBLIC INTEREST procedures that an employee benefit DETERMINATION DATES: Written comments must be submitted to the office shown in the plan must establish regarding the Entry of this Final Judgment is in the Addresses section on or before April 23, handling of a benefit claim. These public interest. The parties have 2012. requirements include third-party notice complied with the requirements of the and disclosure requirements that the ADDRESSES: Direct all written comments Antitrust Procedures and Penalties Act, plan must satisfy by providing regarding the information collection 15 U.S.C. 16, including making copies information to participants and request and burden estimates to G. available to the public of this Final beneficiaries of the plan. Christopher Cosby, Office of Policy and Judgment, the Competitive Impact On June 24, 2011, the Department Research, Employee Benefits Security Statement, and any comments thereon amended the interim final regulations. Administration, U.S. Department of and Plaintiff’s responses to comments. Two amendments revised the ICR. The Labor, 200 Constitution Avenue NW., Based upon the record before the Court, first amendment provides that plans no Room N–5647, Washington, DC 20210. which includes the Competitive Impact longer are required to include diagnosis Telephone: (202) 693–8410; Fax: (202) Statement and any comments and and treatment codes on notices of 219–4745. These are not toll-free response to comments filed with the adverse benefit determination and final numbers. Comments may also be Court, entry of this Final Judgment is in internal adverse benefit determination. submitted electronically to the the public interest. Instead, they must notify claimants of following Internet email address: the opportunity to receive the codes on DATED: llllllllllllllll [email protected]. request and plans and issuers must lllllllllllllllllllll SUPPLEMENTARY INFORMATION: provide the codes upon request. The UNITED STATES DISTRICT JUDGE Departments expect that this change I. Background [FR Doc. 2012–4246 Filed 2–22–12; 8:45 am] will lower costs, because plans and BILLING CODE 4410–11–P The Patient Protection and Affordable issuers no longer will have to provide Care Act, Public Law 111–148, (the the codes on the notices. Plans and Affordable Care Act) was enacted by issuers will incur a cost to establish DEPARTMENT OF LABOR President Obama on March 23, 2010. As procedures to receive, process, and mail part of the Act, Congress added Public the codes upon request. Employee Benefits Security Health Service Act (PHS Act) section The second amendment also changes Administration 2719, which provides rules relating to the method plans and issuers must use internal claims and appeals and external to determine who is eligible to receive Proposed Extension of Information review processes. The Department, in a notice in a culturally and Collection Request Submitted for conjunction with the Departments of the linguistically appropriate manner, and Public Comment; Affordable Care Act Treasury and Department of Health and the information that must be provided Internal Claims and Appeals and Human Services (collectively, the to such persons. The previous rule was External Review Procedures for Non- Departments), issued interim final based on the number of employees at a Grandfathered Plans regulations on July 23, 2010 (75 FR firm. The new rule is based on whether AGENCY: Employee Benefits Security 43330), which set forth rules a participant or beneficiary resides in a Administration, Department of Labor. implementing PHS Act section 2719 for county where ten percent or more of the ACTION: Notice. internal claims and appeals and external population residing in the county is review processes. With respect to literate only in the same non-English SUMMARY: The Department of Labor (the internal claims and appeals processes language. Department), in accordance with the for group health coverage, PHS Act On December 15, 2011, the Office of Paperwork Reduction Act of 1995 (PRA section 2719 and paragraph (b)(2)(i) of Management and Budget (OMB) 95) (44 U.S.C. 3506(c)(2)(A)), provides the interim final regulations provide approved the amendments to the ICR the general public and Federal agencies that group health plans and health under the emergency procedures for with an opportunity to comment on insurance issuers offering group health review and clearance in accordance proposed and continuing collections of insurance coverage must comply with with the Paperwork Reduction Act of information. This helps the Department the internal claims and appeals 1995 (Pub. L. 104–13, 44 U.S.C. Chapter assess the impact of its information processes set forth in 29 CFR 2560.503– 35) and 5 CFR 1320.13 under OMB

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Control Number 1210–0144. OMB’s included in the ICR for OMB approval FOR FURTHER INFORMATION CONTACT: approval of the revision currently is of the extension of the information Laura McCarthy, National Archives at schedule to expire on June 30, 2012. collection; they will also become a College Park, 8601 Adelphi Road, matter of public record. College Park, MD 20740, 301–837–3023. II. Current Actions Dated: February 13, 2012. SUPPLEMENTARY INFORMATION: This This notice requests public comment meeting will be open to the public. pertaining to the Department’s request Joseph S. Piacentini, for extension of OMB’s approval of its Director, Office of Policy and Research, Dated: February 16, 2012. revision to OMB Control Number 1210– Employee Benefits Security Administration. Paul M. Wester, Jr., 0144. After considering comments [FR Doc. 2012–4202 Filed 2–22–12; 8:45 am] Chief Records Officer for the U.S. received in response to this notice, the BILLING CODE 4510–29–P Government. Department intends to submit an ICR to [FR Doc. 2012–4213 Filed 2–22–12; 8:45 am] OMB for continuing approval. No BILLING CODE 7515–01–P change to the existing ICR is proposed or made at this time. The Department NATIONAL ARCHIVES AND RECORDS notes that an agency may not conduct or ADMINISTRATION NATIONAL FOUNDATION ON THE sponsor, and a person is not required to ARTS AND HUMANITIES respond to, an information collection Public Meeting To Solicit Comments in unless it displays a valid OMB control Response to the Presidential Proposed Collection; Comment number. A summary of the ICR and the Memorandum, Managing Government Request Records current burden estimates follows: AGENCY: National Endowment for the Agency: Employee Benefits Security AGENCY: National Archives and Records Humanities, National Foundation on the Administration, Department of Labor. Administration. Arts and Humanities. Title: Affordable Care Act Internal ACTION ACTION: Claims and Appeals and External : Notice of meeting. Notice. Review Processes for Non- SUMMARY: The National Archives and SUMMARY: The National Endowment for Grandfathered Plans. Records Administration (NARA) will the Humanities (NEH) is soliciting Type of Review: Revision of a hold an open meeting to solicit public public comments on the proposed currently approved collection of comments in response to the information collection described below. information. Presidential Memorandum on Managing The proposed information collection OMB Number: 1210–0144. Government Records, dated November will be sent to the Office of Management Affected Public: Individuals or and Budget (OMB) for review, as households; Business or other for-profit; 28, 2011. The Memorandum directs the Archivist of the United States, in required by the provisions of the Not-for-profit institutions. Paperwork Reduction Act of 1995. Respondents: 1,020,374. coordination with the Director of OMB, Frequency of Responses: On occasion. to consult with those inside and outside DATES: Comments on this information Responses: 111,328. of the government interested in collection must be submitted on or Estimated Total Burden Hours: 466 improving records management and before April 23, 2012. Estimated Total Burden Cost open government. Comments and ADDRESSES: Send comments to Ms. (Operating and Maintenance): suggestions received by NARA and Susan Daisey, Director, Office of Grant $1,257,726. OMB will help inform the Records Management, National Endowment for Management Directive that will be III. Desired Focus of Comments the Humanities, 1100 Pennsylvania issued later this year. The Presidential Avenue NW., Room 311, Washington, The Department is particularly Memorandum can be found at http:// DC 20506, or by email to: interested in comments that: www.whitehouse.gov/the-press-office/ • [email protected]. Telephone: 202–606– Evaluate whether the proposed 2011/11/28/presidential-memorandum- 8494. collection of information is necessary managing-government-records (see also for the proper performance of the SUPPLEMENTARY INFORMATION: The 76 FR 75423, 12/1/11). National Endowment for the Humanities functions of the agency, including This meeting is primarily focused on whether the information will have will submit the proposed information gathering input from the public interest collection to OMB for review, as practical utility; community, from the vendor/IT • Evaluate the accuracy of the required by the Paperwork Reduction community, and from members of the Act of 1995 (Pub. L. 104–13, 44 U.S.C. agency’s estimate of the burden of the public at large. (Federal agencies will proposed collection of information, Chapter 35). This notice is soliciting separately be submitting reports to comments from members of the public including the validity of the NARA that contain their suggestions for methodology and assumptions used; and affected agencies. NEH is • improving and reforming records particularly interested in comments Enhance the quality, utility, and management.) Additionally, NARA has clarity of the information to be which help the agency to: (1) Evaluate an IdeaScale site established to receive whether the proposed collection of collected; and comments at http:// • Minimize the burden of the information is necessary for the proper govrecordmanagement.ideascale.com/. collection of information on those who performance of the functions of the are to respond, including through the DATES: The meeting will be held on agency, including whether the use of appropriate automated, Tuesday, March 27, 2012, from 10 a.m. information will have practical utility; electronic, mechanical, or other to 12 p.m. (2) Evaluate the accuracy of the agency’s technological collection techniques or ADDRESSES: National Archives Building, estimate of the burden of the proposed other forms of information technology, William G. McGowan Theater, 700 collection of information, including the e.g., by permitting electronic Pennsylvania Avenue NW., Washington, validity of the methodology and submissions of responses. DC 20408. Please enter on the assumptions used; (3) Enhance the Comments submitted in response to Constitution Avenue side of the quality, utility, and clarity of the this notice will be summarized and/or building. information to be collected; and (4)

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Minimize the burden of the collection of Avenue NW., Washington, DC. A c. Federal/State Partnership information on those who are to portion of the morning and afternoon d. Preservation and Access respond, including through the use of sessions on March 8–9, 2012, will not be e. Public Programs appropriate electronic collection open to the public pursuant to f. Research Programs techniques or other forms of information subsections (c)(4), (c)(6) and (c)(9)(B) of The remainder of the proposed technology, e.g., permitting electronic section 552b of Title 5, United States meeting will be given to the submissions of responses. Code because the Council will consider consideration of specific applications This Notice also lists the following information that may disclose: trade and will be closed to the public for the information: secrets and commercial or financial reasons stated above. Type of Review: Extension of a information obtained from a person: and Further information about this currently approved collection. privileged or confidential information of meeting can be obtained from Lisette Agency: National Endowment for the a personal nature the disclosure of Voyatzis, Advisory Committee Humanities. which would constitute a clearly Management Officer, National Title of Proposal: Generic Clearance unwarranted invasion of personal Authority for the National Endowment Endowment for the Humanities, 1100 privacy; and information the premature Pennsylvania Avenue NW., Washington, for the Humanities. disclosure of which would be likely to OMB Number: 3136–0134. DC 20506, or by calling (202) 606–8322, Affected Public: Applicants to NEH significantly frustrate implementation of TDD (202) 606–8282. Advance notice of grant programs, reviewers of NEH grant proposed agency action. I have made any special needs or accommodations is applications, and NEH award recipients. this determination under the authority appreciated. granted me by the Chairman’s Total Respondents: 6,978. Lisette Voyatzis, Frequency of Collection: On occasion. Delegation of Authority dated July 19, Total Responses: 6,978. 1993. Advisory Committee Management Officer. Average Time per Response: Varied The agenda for the sessions on March [FR Doc. 2012–4253 Filed 2–22–12; 8:45 am] according to type of information 8, 2012 will be as follows: BILLING CODE 7536–01–P collection. Committee Meetings Estimated Total Burden Hours: 68,375 hours. (Open to the Public) NATIONAL SCIENCE FOUNDATION Comments submitted in response to Policy Discussion this notice will be summarized and/or National Science Board included in the request for Office of 9–10:30 a.m. Management and Budget approval of the Digital Humanities Room 402 Sunshine Act Meetings; Notice information collection request. They Education Programs Room M–07 The National Science Board’s will also become a matter of public Federal/State Partnership Room 507 Committee on Education and Human record. Preservation and Access Room 415 Public Programs Room 421 Resources (CEH), pursuant to NSF Carole M. Watson, Research Programs Room 315 regulations (45 CFR part 614), the Deputy Chairman, National Endowment for National Science Foundation Act, as the Humanities. (Closed to the Public) amended (42 U.S.C. 1862n-5), and the [FR Doc. 2012–4255 Filed 2–22–12; 8:45 am] Discussion of Specific Grant Government in the Sunshine Act (5 BILLING CODE 7536–01–P Applications and Programs Before the U.S.C. 552b), hereby gives notice in Council regard to the scheduling of a teleconference for the transaction of NATIONAL FOUNDATION ON THE 10:30 a.m. until Adjourned National Science Board business and ARTS AND THE HUMANITIES Digital Humanities Room 402 other matters specified, as follows: Education Programs Room M–07 DATE AND TIME: Meeting of National Council on the Federal/State Partnership Room 507 Tuesday, February 28; Humanities Preservation and Access Room 415 2:30–4 p.m. EST. Public Programs Room 421 SUBJECT MATTER: (1) Overview and AGENCY: The National Endowment for Research Programs Room 315 discussion of the recently issued the Humanities. The morning session of the meeting National Science and Technology ACTION: Notice of meeting. on March 9, 2012 will convene at 9 a.m., Council Committee on STEM (Co- in the first floor Council Room M–09, STEM) Framework Report; (2) CEH Pursuant to the provisions of the Chairman wrap-up and closing remarks. Federal Advisory Committee Act (Public and will be open to the public, as set out L. 92–463, as amended) notice is hereby below. The agenda for the morning STATUS: Open. given that the National Council on the session will be as follows: LOCATION: This meeting will be held by Humanities will meet in Washington, A. Minutes of the Previous Meeting teleconference at the National Science DC on March 8–9, 2012. Board Office, National Science The purpose of the meeting is to B. Reports Foundation, 4201Wilson Blvd., advise the Chairman of the National 1. Introductory Remarks Arlington, VA 22230. A public listening Endowment for the Humanities with 2. Presentation by Joan Houston Hall, room will be available for this respect to policies, programs, and editor of the Dictionary of American teleconference meeting. All visitors procedures for carrying out his Regional English (DARE) must contact the Board Office [call 703– functions, and to review applications for 3. Staff Report 292–7000 or send an email message to financial support from and gifts offered 4. Congressional Report [email protected]] at least 24 to the Endowment and to make 5. Budget Report hours prior to the teleconference for the recommendations thereon to the 6. Reports on Policy and General public room number and to arrange for Chairman. Matters a visitor’s badge. All visitors must report The meeting will be held in the Old a. Digital Humanities to the NSF visitor desk located in the Post Office Building, 1100 Pennsylvania b. Education Programs lobby at the 9th and N. Stuart Streets

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entrance on the day of the Nuclear Power Plant, LLC, the licensee, NUCLEAR REGULATORY teleconference to receive a visitor’s to withdraw its application dated COMMISSION badge. October 25, 2010, for a proposed UPDATES AND POINT OF CONTACT: Please amendment to Renewed Facility Advisory Committee on Reactor refer to the National Science Board Web Operating License Nos. DPR–53 and Safeguards (ACRS); Meeting of the site www.nsf.gov/nsb for additional DPR–69 for the Calvert Cliffs Nuclear ACRS Subcommittee on U.S. information and schedule updates (time, Plant, Units 1 and 2, respectively, Advanced Pressurized Power Reactor; place, subject matter or status of located in Calvert County, Maryland. Notice of Meeting meeting) may be found at http:// The proposed amendment would The ACRS Subcommittee on U.S. www.nsf.gov/nsb/notices/. Point of have modified Technical Specification Advanced Pressurized Power Reactor contact for this meeting is: Matthew B. Limiting Condition for Operation 3.0.5 (US–APWR) will hold a meeting on Wilson, National Science Board Office, pertaining to returning equipment to March 22–23, 2012, Room T–2B1, 11545 4201Wilson Blvd., Arlington, VA 22230. Rockville Pike, Rockville, Maryland. Telephone: (703) 292–7000. operation under administrative controls for the purpose of demonstrating The entire meeting will be open to Ann Ferrante, equipment operability. public attendance, with the exception of Technical Writer-Editor. a portion that may be closed to protect The Commission had previously information that is proprietary pursuant [FR Doc. 2012–4384 Filed 2–21–12; 8:45 am] issued a Notice of Consideration of to 5 U.S.C. 552b(c)(4). BILLING CODE 7555–01–P Issuance of Amendment published in The agenda for the subject meeting the Federal Register on April 19, 2011 shall be as follows: (76 FR 21919). However, by letter dated Thursday, March 22, 2012–8:30 a.m. NEIGHBORHOOD REINVESTMENT January 27, 2012, the licensee withdrew Until 5 p.m.; Friday, March 23, 2012– CORPORATION the proposed change. 8:30 a.m. Until 5 p.m. For further details with respect to this Finance, Budget & Program Committee The Subcommittee will review action, see the application for of the Board of Directors; Chapter 9, ‘‘Auxiliary Systems’’ of the amendment dated October 25, 2010 Sunshine Act Meeting Safety Evaluation Report (SER) with (Agencywide Documents Access and open items associated with the US– Management System Accession No. DATES: APWR design certification. The Time and Date: 2 p.m., ML103010170), and the licensee’s letter Thursday, February 23, 2012. Subcommittee will hear presentations dated January 27, 2012 (ML12031A125), by and hold discussions with the NRC PLACE: 1325 G Street NW., Suite 800, which withdrew the application for staff, Mitsubishi Heavy Industries Boardroom, Washington, DC 20005. license amendment. Documents may be (MHI), and other interested persons STATUS: Open. examined, and/or copied for a fee, at the regarding this matter. The CONTACT PERSON FOR MORE INFORMATION: NRC’s Public Document Room (PDR), Subcommittee will gather information, Erica Hall, Assistant Corporate located at One White Flint North, Public analyze relevant issues and facts, and Secretary, (202) 220–2376; File Area O1–F21, 11555 Rockville Pike formulate proposed positions and [email protected]. (first floor), Rockville, Maryland. actions, as appropriate, for deliberation AGENDA: Publicly available documents created or by the Full Committee. I. Call to Order received at the NRC are accessible Members of the public desiring to II. Executive Session electronically through the Agencywide provide oral statements and/or written III. Financial Report Documents Access and Management comments should notify the Designated IV. NFMC Interest Income Budget System (ADAMS) in the NRC Library at Federal Official (DFO), Mrs. Ilka Berrios V. Lease Update http://www.nrc.gov/reading-rm/adams. (Telephone 301–415–3179 or Email: VI. Corporate Scorecard & Dashboard html. Persons who do not have access to [email protected]) five days prior to VII. NFMC & EHLP ADAMS or who encounter problems in the meeting, if possible, so that VIII. Program Updates accessing the documents located in appropriate arrangements can be made. IX. Adjournment ADAMS should contact the NRC PDR Thirty-five hard copies of each presentation or handout should be Reference staff by telephone at 1–800– Erica Hall, provided to the DFO thirty minutes 397–4209, or 301–415–4737 or by email Assistant Corporate Secretary. before the meeting. In addition, one to [email protected]. [FR Doc. 2012–4274 Filed 2–21–12; 11:15 am] electronic copy of each presentation BILLING CODE 7570–02–P Dated at Rockville, Maryland, this 10th day should be emailed to the DFO one day of February 2012. before the meeting. If an electronic copy For the Nuclear Regulatory Commission. cannot be provided within this NUCLEAR REGULATORY Douglas V. Pickett, timeframe, presenters should provide COMMISSION Senior Project Manager, Plant Licensing the DFO with a CD containing each Branch I–1, Division of Operating Reactor presentation at least thirty minutes [Docket Nos. 50–317 and 50–318; NRC– Licensing, Office of Nuclear Reactor before the meeting. Electronic 2012–0045] Regulation. recordings will be permitted only Calvert Cliffs Nuclear Power Plant, [FR Doc. 2012–4232 Filed 2–22–12; 8:45 am] during those portions of the meeting LLC; Notice of Withdrawal of BILLING CODE 7590–01–P that are open to the public. Detailed Application for Amendment to Facility procedures for the conduct of and Operating License participation in ACRS meetings were published in the Federal Register on The U.S. Nuclear Regulatory October 17, 2011, (76 FR 64127–64128). Commission (the Commission) has Detailed meeting agendas and meeting granted the request of Calvert Cliffs transcripts are available on the NRC

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Web site at http://www.nrc.gov/reading- EPR design certification application. Meetings, and matters related to the rm/doc-collections/acrs. Information [Note: A portion of this session may be conduct of ACRS business, including regarding topics to be discussed, closed in order to discuss and protect anticipated workload and member changes to the agenda, whether the information designated as proprietary, assignments. [Note: A portion of this meeting has been canceled or pursuant to 5 U.S.C. 552b(c)(4)] meeting may be closed pursuant to 5 rescheduled, and the time allotted to 10:45 a.m.–12:15 p.m.: Source Terms U.S.C. 552b (c) (2) and (6) to discuss present oral statements can be obtained for Small Modular Reactors (Open)— organizational and personnel matters from the Web site cited above or by The Committee will hear presentations that relate solely to internal personnel contacting the identified DFO. by and hold discussions with rules and practices of ACRS, and Moreover, in view of the possibility that representatives of the Nuclear Energy information the release of which would the schedule for ACRS meetings may be Institute (NEI) regarding the constitute a clearly unwarranted adjusted by the Chairman as necessary development of source terms for small invasion of personal privacy.] to facilitate the conduct of the meeting, modular reactors. 10 a.m.–10:15 a.m.: Reconciliation of persons planning to attend should check 1:15 p.m.–2:45 p.m.: Extremely Low ACRS Comments and with these references if such Probability of Rupture (Open)—The Recommendations (Open)—The rescheduling would result in a major Committee will hear presentations by Committee will discuss the responses inconvenience. and hold discussions with from the NRC Executive Director for If attending this meeting, please enter representatives of the NRC staff Operations to comments and through the One White Flint North regarding the development of a recommendations included in recent building, 11555 Rockville Pike technical basis for meeting the ACRS reports and letters. Rockville, MD. After registering with requirements of 10 CFR 50 Appendix A, 10:30 a.m.–11:30 a.m.: Draft Final security, please contact Mr. Theron General Design Criteria 4. The staff’s Report on the Biennial ACRS Review of Brown (240–888–9835) to be escorted to approach involves developing a the NRC Safety Research Program the meeting room. computer model that calculates failure (Open)—The Committee will hold a probabilities due to various degradation discussion on the draft final report on Dated: February 16, 2012. mechanisms. the biennial ACRS review of the NRC Antonio Dias, 3 p.m.–4:30 p.m.: Turkey Point Units Safety Research Program. Technical Advisor, Advisory Committee on 3 and 4 Extended Power Uprate 12:30 p.m.–7:00 p.m.: Preparation of Reactor Safeguards. Application (Open/Closed)—The ACRS Reports (Open/Closed)—The [FR Doc. 2012–4227 Filed 2–22–12; 8:45 am] Committee will hear presentations by Committee will discuss proposed ACRS BILLING CODE 7590–01–P and hold discussions with reports on matters discussed during this representatives of the NRC staff and meeting. The Committee will also Florida Power & Light Company discuss a proposed report on the NUCLEAR REGULATORY regarding the Turkey Point Units 3 and implementation of the Near-Term Task COMMISSION 4 Extended Power Uprate Application. Force (NTTF) recommendations Advisory Committee on Reactor [Note: A portion of this session may be stemming from the Fukushima events. Safeguards; Notice of Meeting closed in order to discuss and protect [Note: A portion of this session may be information designated as proprietary, closed in order to discuss and protect In accordance with the purposes of pursuant to 5 U.S.C. 552b(c)(4)] information designated as proprietary, Sections 29 and 182b of the Atomic 4:30 p.m.–7:00 p.m.: Preparation of pursuant to 5 U.S.C. 552b(c)(4)] Energy Act (42 U.S.C. 2039, 2232b), the ACRS Reports (Open/Closed)—The Advisory Committee on Reactor Committee will discuss proposed ACRS Saturday, March 10, 2012 Conference Safeguards (ACRS) will hold a meeting reports on matters discussed during this Room T2–B1, Two White Flint North, on March 8–10, 2012, 11545 Rockville meeting. The Committee will also Rockville, Maryland Pike, Rockville, Maryland. The date of discuss a proposed report on the 8:30 a.m.–1 p.m.: Preparation of this meeting was previously published implementation of the Near-Term Task ACRS Reports (Open/Closed)—The in the Federal Register on Monday, Force (NTTF) recommendations Committee will continue its discussion October 17, 2011 (76 FR 64126–64127). stemming from the Fukushima events. of proposed ACRS reports. [Note: A [Note: A portion of this session may be portion of this session may be closed in Thursday, March 8, 2012, Conference closed in order to discuss and protect order to discuss and protect information Room T2–B1, 11545 Rockville Pike, information designated as proprietary, designated as proprietary, pursuant to 5 Rockville, Maryland pursuant to 5 U.S.C. 552b(c)(4)] U.S.C. 552b(c)(4)] 8:30 a.m.–8:35 a.m.: Opening 1 p.m.–1:30 p.m.: Miscellaneous Remarks by the ACRS Chairman Friday, March 9, 2012, Conference (Open)—The Committee will continue (Open)—The ACRS Chairman will make Room T2–B1, 11545 Rockville Pike, its discussion related to the conduct of opening remarks regarding the conduct Rockville, Maryland Committee activities and specific issues of the meeting. 8:30 a.m.–8:35 a.m.: Opening that were not completed during 8:35 a.m.–10:30 a.m.: Selected Remarks by the ACRS Chairman previous meetings. Chapters of the Safety Evaluation (Open)—The ACRS Chairman will make Procedures for the conduct of and Report (SER) with Open Items opening remarks regarding the conduct participation in ACRS meetings were Associated with the US Evolutionary of the meeting. published in the Federal Register on Power Reactor (EPR) Design 8:35 a.m.–10:00 a.m.: Future ACRS October 17, 2011, (76 FR 64126–64127). Certification Application (Open/ Activities/Report of the Planning and In accordance with those procedures, Closed)—The Committee will hear Procedures Subcommittee (Open/ oral or written views may be presented presentations by and hold discussions Closed)—The Committee will discuss by members of the public, including with representatives of the NRC staff the recommendations of the Planning representatives of the nuclear industry. and AREVA Nuclear Power regarding and Procedures Subcommittee regarding Persons desiring to make oral statements selected chapters of the NRC staff’s SER items proposed for consideration by the should notify Antonio Dias, Cognizant with open items associated with the Full Committee during future ACRS ACRS Staff (Telephone: 301–415–6805,

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Email: [email protected]), five days Dated: February 15, 2012. regarding topics to be discussed, before the meeting, if possible, so that Andrew L. Bates, changes to the agenda, whether the appropriate arrangements can be made Advisory Committee Management Officer. meeting has been canceled or to allow necessary time during the [FR Doc. 2012–4230 Filed 2–22–12; 8:45 am] rescheduled, and the time allotted to meeting for such statements. In view of BILLING CODE 7590–01–P present oral statements can be obtained the possibility that the schedule for from the Web site cited above or by ACRS meetings may be adjusted by the contacting the identified DFO. Chairman as necessary to facilitate the NUCLEAR REGULATORY Moreover, in view of the possibility that conduct of the meeting, persons COMMISSION the schedule for ACRS meetings may be planning to attend should check with adjusted by the Chairman as necessary the Cognizant ACRS staff if such Advisory Committee on Reactor to facilitate the conduct of the meeting, rescheduling would result in major Safeguards (ACRS) Meeting of the persons planning to attend should check inconvenience. ACRS Subcommittee on Reliability and with these references if such PRA; Notice of Meeting rescheduling would result in a major Thirty-five hard copies of each inconvenience. presentation or handout should be The ACRS Subcommittee on If attending this meeting, please enter provided 30 minutes before the meeting. Reliability and PRA will hold a meeting through the One White Flint North In addition, one electronic copy of each on March 21, 2012, Room T–2B1, 11545 building, 11555 Rockville Pike, presentation should be emailed to the Rockville Pike, Rockville, Maryland. Rockville, MD. After registering with Cognizant ACRS Staff one day before The entire meeting will be open to security, please contact Mr. Theron meeting. If an electronic copy cannot be public attendance. Brown (240–888–9835) to be escorted to provided within this timeframe, The agenda for the subject meeting the meeting room. presenters should provide the Cognizant shall be as follows: Dated: February 13, 2012. ACRS Staff with a CD containing each Wednesday, March 21, 2012–1 p.m. Antonio Dias, presentation at least 30 minutes before until 5 p.m. the meeting. Technical Advisor, Advisory Committee on The Subcommittee will review Reactor Safeguards. In accordance with Subsection 10(d) NUREG–1934, ‘‘Nuclear Power Plant [FR Doc. 2012–4228 Filed 2–22–12; 8:45 am] Public Law 92–463, and 5 U.S.C. Fire Modeling Application Guide.’’ The BILLING CODE 7590–01–P 552b(c), certain portions of this meeting Subcommittee will hear presentations may be closed, as specifically noted by and hold discussions with the NRC above. Use of still, motion picture, and staff and other interested persons PENSION BENEFIT GUARANTY television cameras during the meeting regarding this matter. The CORPORATION may be limited to selected portions of Subcommittee will gather information, Submission of Information Collection the meeting as determined by the analyze relevant issues and facts, and for OMB Review; Comment Request; Chairman. Electronic recordings will be formulate proposed positions and Annual Financial and Actuarial permitted only during the open portions actions, as appropriate, for deliberation Information Reporting of the meeting. by the Full Committee. ACRS meeting agenda, meeting Members of the public desiring to AGENCY: Pension Benefit Guaranty transcripts, and letter reports are provide oral statements and/or written Corporation. available through the NRC Public comments should notify the Designated ACTION: Notice of request for OMB Document Room at Federal Official (DFO), John Lai approval. [email protected], or by calling the (Telephone 301–415–5197 or Email: PDR at 1–800–397–4209, or from the [email protected]) five days prior to the SUMMARY: The Pension Benefit Guaranty Publicly Available Records System meeting, if possible, so that appropriate Corporation (PBGC) is requesting that (PARS) component of NRC’s document arrangements can be made. Thirty-five the Office of Management and Budget system (ADAMS) which is accessible hard copies of each presentation or (OMB) extend approval, under the from the NRC Web site at http:// handout should be provided to the DFO Paperwork Reduction Act, of its www.nrc.gov/reading-rm/adams.html or thirty minutes before the meeting. In collection of information for annual http://www.nrc.gov/reading-rm/doc- addition, one electronic copy of each financial and actuarial information collections/ACRS/. presentation should be emailed to the reporting under 29 CFR Part 4010 (OMB DFO one day before the meeting. If an control number 1212–0049; expiring Video teleconferencing service is electronic copy cannot be provided March 31, 2012). This notice informs available for observing open sessions of within this timeframe, presenters the public of PBGC’s request and solicits ACRS meetings. Those wishing to use should provide the DFO with a CD public comment on the collection of this service meetings should contact Mr. containing each presentation at least information. Theron Brown, ACRS Audio Visual thirty minutes before the meeting. Technician (301–415–8066), between DATES: Comments must be submitted by Electronic recordings will be permitted 7:30 a.m. and 3:45 p.m. (ET), at least 10 March 26, 2012. only during those portions of the ADDRESSES: Comments may be days before the meeting to ensure the meeting that are open to the public. availability of this service. submitted by any of the following Detailed procedures for the conduct of methods: Individuals or organizations and participation in ACRS meetings • Federal eRulemaking Portal: http:// requesting this service will be were published in the Federal Register www.regulations.gov. Follow the Web responsible for telephone line charges on October 17, 2011, (76 FR 64126– site instructions for submitting and for providing the equipment and 64127). comments. facilities that they use to establish the Detailed meeting agendas and meeting • Email: [email protected]. video teleconferencing link. The transcripts are available on the NRC • Fax: 202–326–4224. availability of video teleconferencing Web site at http://www.nrc.gov/reading- • Mail or Hand Delivery: Legislative services is not guaranteed. rm/doc-collections/acrs. Information and Regulatory Department, Pension

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Benefit Guaranty Corporation, 1200 K through PBGC’s secure e-4010 web- (‘‘Act’’),1 and Rule 19b–4 2 thereunder, Street, NW., Washington, DC 20005– based application. notice is hereby given that on February 4026. OMB has approved the 4010 13, 2012, NASDAQ OMX PHLX LLC Comments received, including collection of information under control (‘‘Phlx’’ or ‘‘Exchange’’) filed with the personal information provided, will be number 1212–0049 through March 31, Securities and Exchange Commission posted to http://www.pbgc.gov. 2012. PBGC is requesting that OMB (‘‘SEC’’ or ‘‘Commission’’) the proposed Copies of the collection of extend approval of this collection of rule change as described in Items I, II information and comments may be information for three years. An agency and III, below, which Items have been obtained without charge by writing to may not conduct or sponsor, and a substantially prepared by the Exchange. the Disclosure Division, Office of person is not required to respond to, a The Commission is publishing this General Counsel, at the above address or collection of information unless it notice to solicit comments on the by visiting the Disclosure Division or displays a currently valid OMB control proposed rule change from interested calling 202–326–4040 during normal number. persons. PBGC estimates that approximately business hours. (TTY/TDD users may I. Self-Regulatory Organization’s 300 controlled groups will be subject to call the Federal relay service toll-free at Statement of the Terms of Substance of 4010 reporting requirements. PBGC 1–800–877–8339 and ask to be the Proposed Rule Change connected to 202–326–4040.) further estimates that the total annual burden of this collection of information The Exchange proposes to delete FOR FURTHER INFORMATION CONTACT: will be 2,620 hours and $5,088,000. certain extraneous language from Grace H. Kraemer, Attorney, or PBGC is soliciting public comments Exchange Rule 705 to amend an Catherine B. Klion, Manager Legislative to— inadvertent error in the rule text that and Regulatory Department, Pension • Evaluate whether the proposed arose in connection with a recent rule Benefit Guaranty Corporation, 1200 K collection of information is necessary filing which replaces the current text of Street, NW., Washington, DC 20005– for the proper performance of the Exchange Rule 705.3 The Exchange 4026; 202–326–4024. (TTY/TDD users functions of the agency, including intends for this Rule to be operative on may call the Federal relay service toll- whether the information will have April 2, 2012. free at 1–800–877–8339 and ask to be practical utility; The text of the proposed rule change connected to 202–326–4024.) • Evaluate the accuracy of the is available on the Exchange’s Web site SUPPLEMENTARY INFORMATION: Section agency’s estimate of the burden of the at http://nasdaqtrader.com/ 4010 of the Employee Retirement proposed collection of information, micro.aspx?id=PHLXfilings, at the Income Security Act of 1974 (ERISA) including the validity of the principal office of the Exchange, and at requires each member of a controlled methodologies and assumptions used; the Commission’s Public Reference group to submit financial and actuarial • Enhance the quality, utility, and Room. information to PBGC under certain clarity of the information to be II. Self-Regulatory Organization’s circumstances. PBGC’s regulation on collected; and Statement of the Purpose of, and • Annual Financial and Actuarial Minimize the burden of the Statutory Basis for, the Proposed Rule Information (29 CFR Part 4010) specifies collection of information on those who Change the items of identifying, financial, and are to respond, including through the actuarial information that filers must use of appropriate automated, In its filing with the Commission, the submit. PBGC reviews the information electronic, mechanical, or other Exchange included statements that is filed and enters it into an technological collection techniques or concerning the purpose of and basis for electronic database for more detailed other forms of information technology. the proposed rule change and discussed analysis. Computer-assisted analysis of any comments it received on the Issued in Washington, DC, this 16th day of proposed rule change. The text of these this information helps PBGC to February, 2012. anticipate possible major demands on statements may be examined at the John H. Hanley, places specified in Item IV below. The the/pension insurance system and to Director, Legislative and Regulatory focus PBGC resources on situations that Exchange has prepared summaries, set Department, Pension Benefit Guaranty forth in sections A, B, and C below, of pose the greatest risk to the system. Corporation. Because other sources of information are the most significant aspects of such [FR Doc. 2012–4215 Filed 2–22–12; 8:45 am] statements. usually not as current as the 4010 BILLING CODE 7709–01–P information and do not reflect a plan’s A. Self-Regulatory Organization’s termination liability, 4010 filings play a Statement of the Purpose of, and major role in PBGC’s ability to protect Statutory Basis for, the Proposed Rule participant and premium-payer SECURITIES AND EXCHANGE Change interests. COMMISSION 1. Purpose ERISA section 4010 and PBGC’s 4010 [Release No. 34–66407; File No. SR–Phlx– The purpose of the proposed rule regulation specify that each controlled 2012–21] group member must provide PBGC with change is to correct the text of Exchange certain financial information, including Self-Regulatory Organizations; Rule 705, entitled ‘‘Members Must audited (if available) or (if not) NASDAQ OMX PHLX LLC; Notice of Carry,’’ by deleting certain text which unaudited financial statements. They Filing and Immediate Effectiveness of was not deleted when the Exchange 4 also specify that the controlled group Proposed Rule Change Relating to filed to replace Rule 705 with a rule in must provide PBGC with certain Correction of Exchange Rule 705 actuarial information necessary to (Fidelity Bonds) 1 15 U.S.C. 78s(b)(1). 2 determine the liabilities and assets for 17 CFR 240.19b–4. February 16, 2012. 3 See Securities Exchange Act Release No. 66362 all PBGC-covered plans. All non-public (February 9, 2012) (SR–Phlx–2012–13). information submitted is protected from Pursuant to Section 19(b)(1) of the 4 See Securities Exchange Act Release No. 66362 disclosure. Reporting is accomplished Securities Exchange Act of 1934 (February 9, 2012) (SR–Phlx–2012–13).

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substantially the same form as the respect to the meaning, administration, provisions of 5 U.S.C. 552, will be Financial Industry Regulatory or enforcement of an existing rule of the available for Web site viewing and Authority, Inc. (‘‘FINRA’’) Rule 4360.5 self-regulatory organization, and printing in the Commission’s Public The Supplementary Material to therefore has become effective. Reference Room, 100 F Street NE., Exchange Rule 705 is being replaced, The Exchange intends for Rule 705 to Washington, DC 20549, on official along with the remainder of Rule 705, become operative on April 2, 2012. This business days between the hours of 10 by a new Rule 705, as of April 2, 2012. operative delay will allow members or a.m. and 3 p.m. Copies of the filing also The title of Exchange Rule 705 will also member organizations that are not will be available for inspection and be changed from ‘‘Members Must Carry’’ exempt from the Rule to comply with copying at the principal office of the to ‘‘Fidelity Bonds.’’ The Exchange the requirements set forth under the Exchange. All comments received will Rule. intended to delete the current Rule 705 be posted without change; the At any time within 60 days of the in its entirety and rename the rule and Commission does not edit personal add new text similar to that in FINRA filing of the proposed rule change, the identifying information from Rule 4360. The Exchange inadvertently Commission summarily may submissions. You should submit only did not place the Supplementary temporarily suspend such rule change if Material section of the Rule in that filing it appears to the Commission that such information that you wish to make to be deleted. The Exchange proposes to action is necessary or appropriate in the available publicly. delete the current Supplementary public interest, for the protection of All submissions should refer to File Material to Exchange Rule 705 as of investors, or otherwise in furtherance of Number SR–Phlx–2012–21 and should April 2, 2012, to correspond with the the purposes of the Act. If the be submitted on or before March 15, operative date of SR–Phlx–2012–13. Commission takes such action, the 2012. Commission shall institute proceedings 2. Statutory Basis For the Commission, by the Division of to determine whether the proposed rule The Exchange believes that its Trading and Markets, pursuant to delegated should be approved or disapproved. 10 proposal is consistent with Section 6(b) authority. of the Act 6 in general, and furthers the IV. Solicitation of Comments Kevin M. O’Neill, objectives of Section 6(b)(5) of the Act 7 Interested persons are invited to Deputy Secretary. in particular, in that it is designed to submit written data, views, and [FR Doc. 2012–4148 Filed 2–22–12; 8:45 am] promote just and equitable principles of arguments concerning the foregoing, BILLING CODE 8011–01–P trade, to remove impediments to and including whether the proposed rule perfect the mechanism of a free and change is consistent with the Act. open market and a national market Comments may be submitted by any of SECURITIES AND EXCHANGE system, and, in general to protect the following methods: COMMISSION investors and the public interest, by Electronic Comments correcting an error in the Exchange’s [Release No. 34–66411; File No. SR–NYSE– Rules in order that the Rule properly • Use the Commission’s Internet 2012–04] reflect the correct text. The Exchange’s comment form (http://www.sec.gov/ rules/sro.shtml); or proposal will correct the text of the Rule Self-Regulatory Organizations; New • Send an email to rule- so that the new text will be properly York Stock Exchange LLC; Notice of reflected as of April 2, 2012. [email protected]. Please include File Number SR–Phlx–2012–21 on the Filing and Immediate Effectiveness of B. Self-Regulatory Organization’s subject line. Proposed Rule Change Deleting NYSE Statement on Burden on Competition Rule 319 and its Interpretation, Which Paper Comments The Exchange does not believe that Address Fidelity Bond Requirements, the proposed rule change will impose • Send paper comments in triplicate and Adopt New Rule Text That Is any burden on competition not to Elizabeth M. Murphy, Secretary, Substantially Similar to FINRA Rule necessary or appropriate in furtherance Securities and Exchange Commission, 4360 of the purposes of the Act. 100 F Street NE., Washington, DC 20549–1090. February 16, 2012. C. Self-Regulatory Organization’s All submissions should refer to File Pursuant to Section 19(b)(1) 1 of the Statement on Comments on the Number SR–Phlx–2012–21. This file Securities Exchange Act of 1934 (the Proposed Rule Change Received From ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 Members, Participants, or Others number should be included on the subject line if email is used. To help the notice is hereby given that on February No written comments were either Commission process and review your 3, 2012, New York Stock Exchange LLC solicited or received. comments more efficiently, please use (‘‘NYSE’’ or the ‘‘Exchange’’) filed with III. Date of Effectiveness of the only one method. The Commission will the Securities and Exchange Proposed Rule Change and Timing for post all comments on the Commission’s Commission (the ‘‘Commission’’) the Commission Action Internet Web site (http://www.sec.gov/ proposed rule change as described in rules/sro.shtml). Copies of the Pursuant to Section 19(b)(3)(A) of the Items I, II, and III below, which Items submission, all subsequent Act 8 and Rule 19b–4(f)(1) 9 thereunder, have been prepared by the self- amendments, all written statements the Exchange has designated this regulatory organization. The with respect to the proposed rule proposal as one that constitutes a stated Commission is publishing this notice to change that are filed with the policy, practice or interpretation with solicit comments on the proposed rule Commission, and all written change from interested persons. communications relating to the 5 See FINRA Rule 4360 ‘‘Fidelity Bonds.’’ 6 15 U.S.C. 78f(b). proposed rule change between the 10 17 CFR 200.30–3(a)(12). 7 15 U.S.C. 78f(b)(5). Commission and any person, other than 1 15 U.S.C.78s(b)(1). 8 15 U.S.C. 78s(b)(3)(A). those that may be withheld from the 2 15 U.S.C. 78a. 9 17 CFR 240.19b–4(f)(1). public in accordance with the 3 17 CFR 240.19b–4.

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I. Self-Regulatory Organization’s As part of its effort to reduce Rules, the Exchange correspondingly Statement of the Terms of Substance of regulatory duplication and relieve firms proposes to delete Rule 319 and its the Proposed Rule Change that are members of FINRA, NYSE and Interpretation and to adopt proposed The Exchange proposes to delete NYSE Amex of conflicting or NYSE Rule 4360. The text of proposed NYSE Rule 319 and its Interpretation, unnecessary regulatory burdens, FINRA NYSE Rule 4360 would be the same as which address fidelity bond is now engaged in the process of FINRA Rule 4360, except that the requirements, and adopt new rule text reviewing and amending the NASD and Exchange would substitute the term that is substantially similar to FINRA FINRA Incorporated NYSE Rules in ‘‘member organization’’ for ‘‘member’’ Rule 4360. The text of the proposed rule order to create a consolidated FINRA and ‘‘Exchange’’ for ‘‘FINRA.’’ rulebook.6 change is available at the Exchange, the 2. Statutory Basis Commission’s Public Reference Room, Proposed Conforming Amendments to The proposed rule change is and www.nyse.com. NYSE Rules consistent with Section 6(b) of the Act 8 II. Self-Regulatory Organization’s The Exchange proposes to delete in general, and furthers the objectives of Statement of the Purpose of, and NYSE Rule 319 and its Interpretation Section 6(b)(5) 9 in particular, in that it Statutory Basis for, the Proposed Rule and adopt new Rule 4360 to conform to is designed to prevent fraudulent and Change the changes adopted by FINRA for manipulative acts and practices, to fidelity bonds.7 FINRA adopted NASD In its filing with the Commission, the promote just and equitable principles of Rule 3020 as FINRA Rule 4360, taking self-regulatory organization included trade, to foster cooperation and into account NYSE Rule 319 and its coordination with persons engaged in statements concerning the purpose of, Interpretation. FINRA Rule 4360 and basis for, the proposed rule change facilitating transactions in securities, updates and clarifies fidelity bond and to remove impediments to and and discussed any comments it received requirements for member firms and on the proposed rule change. The text perfect the mechanism of a free and better reflects current industry practices. open market and a national market of those statements may be examined at The Rule requires each FINRA member the places specified in Item IV below. system. Specifically, the Exchange that is required to join Securities believes that the proposed rule change The Exchange has prepared summaries, Investor Protection Corporation to set forth in sections A, B, and C below, supports the objectives of the Act by maintain blanket fidelity bond coverage providing greater harmonization of the most significant parts of such with specified amounts of coverage statements. between NYSE Rules and FINRA Rules based on the member organization’s net of similar purpose, resulting in less A. Self-Regulatory Organization’s capital requirement, with certain burdensome and more efficient Statement of the Purpose of, and exceptions, and to maintain fidelity regulatory compliance. In particular, all Statutory Basis for, the Proposed Rule bond coverage that provides for per loss NYSE member organizations that are Change coverage without an aggregate limit of subject to NYSE Rule 319 are also liability. subject to FINRA Rule 4360 and 1. Purpose Because it covers the same topic as harmonizing these two rules would The Exchange proposes to delete the new FINRA rule, FINRA deleted promote just and equitable principles of NYSE Rule 319 and its Interpretation, FINRA Incorporated NYSE Rule 319 and trade by requiring a single standard for which address fidelity bond its Interpretation. In particular, NYSE fidelity bonds. To the extent the requirements, and adopt new rule text Rule 319 and its Interpretation generally Exchange has proposed changes that that is substantially similar to FINRA require member organizations to differ from the FINRA version of the Rule 4360.4 maintain minimum amounts of fidelity Rules, such changes are technical in bond coverage for officers and Background nature and do not change the substance employees, and that such coverage of the proposed NYSE Rules. The On July 30, 2007, FINRA’s address losses incurred due to certain Exchange also believes that the predecessor, the National Association of specified events. To harmonize the proposed rule change will update and Securities Dealers, Inc. (‘‘NASD’’), and NYSE Rules with the approved FINRA clarify the requirements governing NYSE Regulation, Inc. (‘‘NYSER’’) fidelity bonds, which will promote just approving the Agreement); 56147 (July 26, 2007), 72 consolidated their member firm and equitable principles of trade and regulation operations into a combined FR 42166 (August 1, 2007) (SR–NASD–2007–054) (order approving the incorporation of certain NYSE help to protect investors. organization, FINRA. Pursuant to Rule Rules as ‘‘Common Rules’’); and 60409 (July 30, 17d–2 under the Act, NYSE, NYSER and 2009), 74 FR 39353 (August 6, 2009) (order B. Self-Regulatory Organization’s FINRA entered into an agreement (the approving the amended and restated Agreement, Statement on Burden on Competition adding NYSE Amex LLC as a party). Paragraph 2(b) ‘‘Agreement’’) to reduce regulatory of the Agreement sets forth procedures regarding The Exchange does not believe that duplication for their members by proposed changes by FINRA, NYSE or NYSE Amex the proposed rule change will impose allocating to FINRA certain regulatory to the substance of any of the Common Rules. any burden on competition that is not responsibilities for certain NYSE rules 6 FINRA’s rulebook currently has three sets of necessary or appropriate in furtherance and rule interpretations (‘‘FINRA rules: (1) NASD Rules, (2) FINRA Incorporated NYSE Rules, and (3) consolidated FINRA Rules. of the purposes of the Act. Incorporated NYSE Rules’’). NYSE The FINRA Incorporated NYSE Rules apply only to Amex LLC (‘‘NYSE Amex’’) became a those members of FINRA that are also members of C. Self-Regulatory Organization’s party to the Agreement effective the NYSE (‘‘Dual Members’’), while the Statement on Comments on the December 15, 2008.5 consolidated FINRA Rules apply to all FINRA Proposed Rule Change Received From members. For more information about the FINRA Members, Participants, or Others rulebook consolidation process, see FINRA 4 See Securities Exchange Act Release No. 63961 Information Notice, March 12, 2008. No written comments were solicited (February 24, 2011), 76 FR 11542 (March 2, 2011) 7 The purpose of a fidelity bond is to protect a or received with respect to the proposed (SR–FINRA–2010–059). FINRA’s rule change member organization against certain types of losses, rule change. became effective on January 1, 2012. See FINRA including, but not limited to, those caused by the Regulatory Notice 11–21. malfeasance of its officers and employees, and the 5 See Securities Exchange Act Release Nos. 56148 effect of such losses on the member organization’s 8 15 U.S.C. 78f(b). (July 26, 2007), 72 FR 42146 (August 1, 2007) (order capital. 9 15 U.S.C. 78f(b)(5).

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III. Date of Effectiveness of the Paper Comments SECURITIES AND EXCHANGE Proposed Rule Change and Timing for • COMMISSION Commission Action Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, [Release No. 34–66408; File No. SR–CBOE– The Exchange has filed the proposed Securities and Exchange Commission, 2011–126] rule change pursuant to Section 100 F Street NE., Washington, DC Self-Regulatory Organizations; 10 19(b)(3)(A)(iii) of the Act and Rule 20549–1090. Chicago Board Options Exchange, 19b–4(f)(6) thereunder.11 Because the All submissions should refer to File Incorporated; Order Approving proposed rule change does not: (i) Proposed Rule Change Relating to the Significantly affect the protection of Number SR–NYSE–2012–04. This file number should be included on the CBOE Stock Exchange Request for investors or the public interest; (ii) Quote Rules impose any significant burden on subject line if email is used. To help the competition; and (iii) become operative Commission process and review your February 16, 2012. prior to 30 days from the date on which comments more efficiently, please use On December 27, 2011, Chicago Board it was filed, or such shorter time as the only one method. The Commission will Options Exchange, Incorporated Commission may designate, if post all comments on the Commission’s (‘‘Exchange’’) filed with the Securities consistent with the protection of Internet Web site (http://www.sec.gov/ and Exchange Commission investors and the public interest, the rules/sro.shtml). Copies of the (‘‘Commission’’), pursuant to Section proposed rule change has become submission, all subsequent 19(b)(1) of the Securities Exchange Act effective pursuant to Section 19(b)(3)(A) amendments, all written statements of 1934 (‘‘Act’’) 1 and Rule 19b–4 of the Act and Rule 19b–4(f)(6)(iii) with respect to the proposed rule thereunder,2 a proposed rule change to thereunder. change that are filed with the modify its rules relating to requests for quotes (‘‘RFQs’’) on the CBOE Stock A proposed rule change filed under Commission, and all written Exchange (‘‘CBSX’’). The proposal Rule 19b–4(f)(6) 12 normally does not communications relating to the removes the rule provisions affording become operative prior to 30 days after proposed rule change between the CBSX participants the ability to submit the date of the filing. However, pursuant Commission and any person, other than RFQs. The proposed rule change was 13 those that may be withheld from the to Rule 19b–4(f)(6)(iii), the published for comment in the Federal Commission may designate a shorter public in accordance with the Register on January 13, 2012.3 The time if such action is consistent with the provisions of 5 U.S.C. 552, will be Commission received no comments on protection of investors and the public available for Web site viewing and the proposal. interest. The Exchange has asked the printing in the Commission’s Public After careful review, the Commission Commission to waive the 30-day Reference Section, 100 F Street NE., finds that the proposed rule change is operative delay so that the proposal may Washington, DC 20549–1090. Copies of consistent with the requirements of the become operative immediately upon the filing will also be available for Act and the rules and regulations filing. inspection and copying at the NYSE’s thereunder applicable to a national At any time within 60 days of the principal office and on its Internet Web securities exchange 4 and, in particular, filing of such proposed rule change, the site at www.nyse.com. All comments the requirements of Section 6(b)(5) of Commission summarily may received will be posted without change; the Act,5 which requires that the temporarily suspend such rule change if the Commission does not edit personal Commission determine that the rules of it appears to the Commission that such identifying information from the Exchange are designed to remove action is necessary or appropriate in the submissions. You should submit only impediments to and perfect the public interest, for the protection of information that you wish to make mechanism for a free and open market. investors, or otherwise in furtherance of available publicly. The proposal removes references the purposes of the Act. pertaining to RFQs in the CBSX rules All submissions should refer to File because the method of trading on CBSX IV. Solicitation of Comments Number SR–NYSE–2012–04 and should obviates the need for an RFQ process. be submitted on or before March 15, The Exchange represents that Interested persons are invited to 2012. submit written data, views, and participants have not used, or inquired arguments concerning the foregoing, For the Commission, by the Division of about using, RFQs on CBSX. Moreover, including whether the proposed rule Trading and Markets, pursuant to delegated the systems of CBSX do not fully change is consistent with the Act. authority.14 support transmitting RFQ messages. Comments may be submitted by any of Kevin M. O’Neill, Given that the CBSX system for submitting RFQs is not currently the following methods: Deputy Secretary. functional, the Commission believes the Electronic Comments [FR Doc. 2012–4194 Filed 2–22–12; 8:45 am] removal of references to RFQs in the BILLING CODE 8011–01–P • CBSX rules may prevent confusion Use the Commission’s Internet among participants who may otherwise comment form (http://www.sec.gov/ expect to be able to submit RFQs. For rules/sro.shtml); or the foregoing reasons, the Commission • Send an email to rule- [email protected]. Please include File 1 15 U.S.C. 78s(b)(1). Number SR–NYSE–2012–04 on the 2 17 CFR 240.19b–4. subject line. 3 See Securities Exchange Act Release No. 66119 (January 9, 2012), 77 FR 2112. 4 In approving this proposed rule change, the 10 15 U.S.C. 78s(b)(3)(A)(iii). Commission has considered the proposed rule’s 11 17 CFR 240.19b–4(f)(6). impact on efficiency, competition, and capital 12 17 CFR 240.19b–4(f)(6). formation. See 15 U.S.C. 78c(f). 13 17 CFR 240.19b–4(f)(6)(iii). 14 17 CFR 200.30–3(a)(12). 5 15 U.S.C. 78f(b)(5).

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believes that the proposed rule change II. Self-Regulatory Organization’s is now engaged in the process of is consistent with the Act. Statement of the Purpose of, and reviewing and amending the NASD and It is therefore ordered, pursuant to Statutory Basis for, the Proposed Rule FINRA Incorporated NYSE Rules in Section 19(b)(2) of the Act,6 that the Change order to create a consolidated FINRA proposed rule change (SR–CBOE–2011– In its filing with the Commission, the rulebook.6 126) be, and it hereby is, approved. self-regulatory organization included Proposed Conforming Amendments to statements concerning the purpose of, For the Commission, by the Division of NYSE Amex Equities Rules and basis for, the proposed rule change Trading and Markets, pursuant to delegated and discussed any comments it received authority.7 The Exchange proposes to delete on the proposed rule change. The text NYSE Amex Equities Rule 319 and Kevin M. O’Neill, of those statements may be examined at adopt new NYSE Amex Equities Rule Deputy Secretary. the places specified in Item IV below. 4360 to conform to the changes adopted [FR Doc. 2012–4193 Filed 2–22–12; 8:45 am] The Exchange has prepared summaries, by FINRA for fidelity bonds.7 FINRA BILLING CODE 8011–01–P set forth in sections A, B, and C below, adopted NASD Rule 3020 as FINRA of the most significant parts of such Rule 4360, taking into account NYSE statements. Rule 319 and its Interpretation. FINRA SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s Rule 4360 updates and clarifies fidelity COMMISSION Statement of the Purpose of, and bond requirements for member firms Statutory Basis for, the Proposed Rule and better reflects current industry [Release No. 34–66412; File No. SR– Change practices. The Rule requires each FINRA NYSEAMEX–2012–08] member that is required to join 1. Purpose Securities Investor Protection Self-Regulatory Organizations; NYSE The Exchange proposes to delete Corporation to maintain blanket fidelity Amex LLC; Notice of Filing and NYSE Amex Equities Rule 319, which bond coverage with specified amounts Immediate Effectiveness of Proposed addresses fidelity bond requirements, of coverage based on the member Rule Change Deleting NYSE Amex and adopt new rule text that is organization’s net capital requirement, Equities Rule 319, Which Addresses substantially similar to FINRA Rule with certain exceptions, and to maintain Fidelity Bond Requirements, and 4 4360. fidelity bond coverage that provides for Adopt New Rule Text That Is per loss coverage without an aggregate Substantially Similar to FINRA Rule Background limit of liability. 4360 On July 30, 2007, FINRA’s predecessor, the National Association of Because it covers the same topic as February 16, 2012. Securities Dealers, Inc. (‘‘NASD’’), and the new FINRA rule, FINRA deleted Pursuant to Section 19(b)(1) 1 of the NYSE Regulation, Inc. (‘‘NYSER’’) FINRA Incorporated NYSE Rule 319 and Securities Exchange Act of 1934 (the consolidated their member firm its Interpretation. In particular, NYSE ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 regulation operations into a combined Rule 319 and its Interpretation generally notice is hereby given that on February organization, FINRA. Pursuant to Rule require member organizations to 3, 2012, NYSE Amex LLC (the 17d–2 under the Act, NYSE, NYSER and maintain minimum amounts of fidelity ‘‘Exchange’’ or ‘‘NYSE Amex’’) filed FINRA entered into an agreement (the bond coverage for officers and with the Securities and Exchange ‘‘Agreement’’) to reduce regulatory employees, and that such coverage Commission (the ‘‘Commission’’) the duplication for their members by address losses incurred due to certain proposed rule change as described in allocating to FINRA certain regulatory specified events. To harmonize the responsibilities for certain NYSE rules Items I, II, and III below, which Items NYSE Amex Equities Rules with the and rule interpretations (‘‘FINRA have been prepared by the self- approved FINRA Rules, the Exchange Incorporated NYSE Rules’’). NYSE regulatory organization. The correspondingly proposes to delete Amex LLC (‘‘NYSE Amex’’) became a Commission is publishing this notice to NYSE Amex Equities Rule 319 and to party to the Agreement effective solicit comments on the proposed rule 5 adopt proposed NYSE Amex Equities December 15, 2008. Rule 4360. The text of proposed NYSE change from interested persons. As part of its effort to reduce Amex Equities Rule 4360 would be the I. Self-Regulatory Organization’s regulatory duplication and relieve firms that are members of FINRA, NYSE and same as FINRA Rule 4360, except that Statement of the Terms of Substance of the Exchange would substitute the term the Proposed Rule Change NYSE Amex of conflicting or unnecessary regulatory burdens, FINRA ‘‘member organization’’ for ‘‘member’’ The Exchange proposes to delete and ‘‘Exchange’’ for ‘‘FINRA.’’ NYSE Amex Equities Rule 319, which 4 See Securities Exchange Act Release No. 63961 addresses fidelity bond requirements, (February 24, 2011), 76 FR 11542 (March 2, 2011) 6 FINRA’s rulebook currently has three sets of (SR–FINRA–2010–059). FINRA’s rule change rules: (1) NASD Rules, (2) FINRA Incorporated and adopt new rule text that is became effective on January 1, 2012. See FINRA NYSE Rules, and (3) consolidated FINRA Rules. substantially similar to FINRA Rule Regulatory Notice 11–21. The FINRA Incorporated NYSE Rules apply only to 4360. The text of the proposed rule 5 See Securities Exchange Act Release Nos. 56148 those members of FINRA that are also members of change is available at the Exchange, the (July 26, 2007), 72 FR 42146 (August 1, 2007) (order the NYSE (‘‘Dual Members’’), while the approving the Agreement); 56147 (July 26, 2007), 72 consolidated FINRA Rules apply to all FINRA Commission’s Public Reference Room, FR 42166 (August 1, 2007) (SR–NASD–2007–054) members. For more information about the FINRA and www.nyse.com. (order approving the incorporation of certain NYSE rulebook consolidation process, see FINRA Rules as ‘‘Common Rules’’); and 60409 (July 30, Information Notice, March 12, 2008. 2009), 74 FR 39353 (August 6, 2009) (order 7 The purpose of a fidelity bond is to protect a 6 15 U.S.C. 78s(b)(2). approving the amended and restated Agreement, member organization against certain types of losses, 7 17 CFR 200.30–3(a)(12). adding NYSE Amex LLC as a party). Paragraph 2(b) including, but not limited to, those caused by the 1 15 U.S.C. 78s(b)(1). of the Agreement sets forth procedures regarding malfeasance of its officers and employees, and the 2 15 U.S.C. 78a. proposed changes by FINRA, NYSE or NYSE Amex effect of such losses on the member organization’s 3 17 CFR 240.19b–4. to the substance of any of the Common Rules. capital.

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2. Statutory Basis 19b–4(f)(6) thereunder.11 Because the subject line if email is used. To help the Commission process and review your The proposed rule change is proposed rule change does not: (i) Significantly affect the protection of comments more efficiently, please use consistent with Section 6(b) of the Act 8 investors or the public interest; (ii) only one method. The Commission will in general, and furthers the objectives of impose any significant burden on post all comments on the Commission’s Section 6(b)(5) 9 in particular, in that it competition; and (iii) become operative Internet Web site (http://www.sec.gov/ is designed to prevent fraudulent and prior to 30 days from the date on which rules/sro.shtml). Copies of the manipulative acts and practices, to it was filed, or such shorter time as the submission, all subsequent promote just and equitable principles of Commission may designate, if amendments, all written statements trade, to foster cooperation and consistent with the protection of with respect to the proposed rule coordination with persons engaged in investors and the public interest, the change that are filed with the facilitating transactions in securities, proposed rule change has become Commission, and all written and to remove impediments to and effective pursuant to Section 19(b)(3)(A) communications relating to the perfect the mechanism of a free and of the Act and Rule 19b–4(f)(6)(iii) proposed rule change between the open market and a national market thereunder. Commission and any person, other than system. Specifically, the Exchange A proposed rule change filed under those that may be withheld from the believes that the proposed rule change Rule 19b–4(f)(6) 12 normally does not public in accordance with the supports the objectives of the Act by become operative prior to 30 days after provisions of 5 U.S.C. 552, will be providing greater harmonization the date of the filing. However, pursuant available for Web site viewing and between NYSE Amex Equities Rules and to Rule 19b–4(f)(6)(iii),13 the printing in the Commission’s Public FINRA Rules of similar purpose, Commission may designate a shorter Reference Section, 100 F Street NE., resulting in less burdensome and more time if such action is consistent with the Washington, DC 20549–1090. Copies of efficient regulatory compliance. In protection of investors and the public the filing will also be available for particular, all NYSE Amex member interest. The Exchange has asked the inspection and copying at the NYSE’s organizations that are subject to NYSE Commission to waive the 30-day principal office and on its Internet Web Amex Equities Rule 319 are also subject operative delay so that the proposal may site at www.nyse.com. All comments to FINRA Rule 4360 and harmonizing become operative immediately upon received will be posted without change; these two rules would promote just and filing. the Commission does not edit personal equitable principles of trade by At any time within 60 days of the identifying information from requiring a single standard for fidelity filing of such proposed rule change, the submissions. You should submit only bonds. To the extent the Exchange has Commission summarily may information that you wish to make proposed changes that differ from the temporarily suspend such rule change if available publicly. FINRA version of the Rules, such it appears to the Commission that such All submissions should refer to File changes are technical in nature and do action is necessary or appropriate in the Number SR–NYSEAMEX–2012–08 and not change the substance of the public interest, for the protection of should be submitted on or before March proposed NYSE Amex Equities Rules. investors, or otherwise in furtherance of 15, 2012. The Exchange also believes that the the purposes of the Act. For the Commission, by the Division of proposed rule change will update and Trading and Markets, pursuant to delegated clarify the requirements governing IV. Solicitation of Comments authority.14 fidelity bonds, which will promote just Interested persons are invited to Kevin M. O’Neill, and equitable principles of trade and submit written data, views, and Deputy Secretary. help to protect investors. arguments concerning the foregoing, [FR Doc. 2012–4151 Filed 2–22–12; 8:45 am] B. Self-Regulatory Organization’s including whether the proposed rule BILLING CODE 8011–01–P Statement on Burden on Competition change is consistent with the Act. Comments may be submitted by any of The Exchange does not believe that the following methods: SECURITIES AND EXCHANGE the proposed rule change will impose COMMISSION any burden on competition that is not Electronic Comments necessary or appropriate in furtherance • Use the Commission’s Internet [Release No. 34–66410; File No. SR–CHX– 2012–06] of the purposes of the Act. comment form (http://www.sec.gov/ rules/sro.shtml); or C. Self-Regulatory Organization’s • Self-Regulatory Organizations; Statement on Comments on the Send an email to rule- Chicago Stock Exchange, Inc.; Notice Proposed Rule Change Received From [email protected]. Please include File of Filing and Immediate Effectiveness Members, Participants, or Others Number SR–NYSEAMEX–2012–08 on of Proposed Rule Change To Amend the subject line. its Fee Schedule To Provide for a New No written comments were either Cross Connection Charge and Waive solicited or received with respect to the Paper Comments Monthly Fees at its New Facility Until proposed rule change. • Send paper comments in triplicate April 1, 2012 to Elizabeth M. Murphy, Secretary, III. Date of Effectiveness of the Securities and Exchange Commission, Proposed Rule Change and Timing for February 16, 2012. 100 F Street NE., Washington, DC Commission Action Pursuant to Section 19(b)(1) of the 20549–1090. Securities Exchange Act of 1934 The Exchange has filed the proposed All submissions should refer to File (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 rule change pursuant to Section Number SR–NYSEAMEX–2012–08. This notice is hereby given that, on February 19(b)(3)(A)(iii) of the Act 10 and Rule file number should be included on the 9, 2012, the Chicago Stock Exchange,

8 15 U.S.C. 78f(b). 11 17 CFR 240.19b–4(f)(6). 14 17 CFR 200.30–3(a)(12). 9 15 U.S.C. 78f(b)(5). 12 17 CFR 240.19b–4(f)(6). 1 15 U.S.C. 78s(b)(1). 10 15 U.S.C. 78s(b)(3)(A)(iii). 13 17 CFR 240.19b–4(f)(6)(iii). 2 17 CFR 240.19b–4.

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Inc. (‘‘CHX’’ or ‘‘Exchange’’) filed with (‘‘NY4’’) until April 1, 2012. CHX also This proposal would also change the the Securities and Exchange proposes consolidating connection description for the ‘‘CHX Network Commission (‘‘Commission’’) the charges and modifying certain Connection’’ charge, which previously proposed rule change as described in descriptions contained in the Fee appeared in Section G., to ‘‘1G Items I, II, and III below, which Items Schedule for clarity. Connection’’ and would also add a have been prepared by the Exchange. Last year, CHX began an initiative to second, higher capacity, 10G cross CHX has filed the proposal pursuant to establish a presence at NY4 in order to connection charge under new section D. Section 19(b)(3)(A) of the Act 3 and Rule improve latencies for its east coast 2. (b); which are physical connections 19b–4(f)(2) thereunder,4 which renders customers and increase the use of its from customer equipment to CHX the proposal effective upon filing with Matching System. The following equipment. In the case of the 1G the Commission. The Commission is proposed modifications to the CHX Fee connection, the Exchange will continue publishing this notice to solicit Schedule are related to this initiative. to charge a one-time fee of $150 to comments on the proposed rule change The Exchange proposes to consolidate establish the connection and a recurring from interested persons. all connection charges into section D. monthly fee of $100. In the case of the and rename this section ‘‘Connection I. Self-Regulatory Organization’s new higher capacity 10G connection, Charges.’’ The Exchange also proposes the Exchange proposes charging a one- Statement of the Terms of Substance of dividing connection charges into two time fee of $1,000 to establish the the Proposed Rule Change general categories: 1. ‘‘Matching System connection and a recurring monthly fee CHX proposes to amend its Schedule Port Charges’’, which are assessed for of $500. As mentioned above, such of Fees and Assessments (the ‘‘Fee each logical connection into the connections are utilized to send market Schedule’’), to provide for certain new Exchange’s Matching System; and, 2. data to, and receive orders from, the cross connection charges and to waive ‘‘Cross Connection Charges’’, which are monthly port fees and cross connection assessed based upon the capacity of the customer’s equipment charges otherwise applicable to any line that physically connects equipment Finally, in order to encourage current Participants connecting to CHX’s new and the type of equipment that is being and new customers to establish facilities in the Equinix NY4 data center connected. Such connections are connections at the Exchange’s new (‘‘NY4’’) until April 1, 2012. CHX also utilized to send market data to, and facility and to provide a transitional proposes consolidating connection receive orders from, the customer’s period for those current customers that charges and modifying certain equipment. would like to move their connections descriptions contained in the Fee Under new section D. 1. ‘‘Matching from Chicago to the new NY4 facility, Schedule for clarity. The text of this System Port Charges’’ the Exchange will CHX proposes waiving monthly port proposed rule change is available on the further clarify, in both the heading and fees and monthly cross connection Exchange’s Web site at (www.chx.com) the following descriptive paragraph, charges at the NY4 facility until April 1, and in the Commission’s Public that such charges are for ‘‘logical’’ (i.e. 2012. The Exchange believes that Reference Room. not physical) connectivity. The waiving monthly charges at NY4 until Exchange will also further specify that II. Self-Regulatory Organization’s this date certain will accomplish its two one port charge is assessed for each Statement of the Purpose of, and goals of encouraging the establishment Participant give-up that has access Statutory Basis for, the Proposed Rule of new connections while avoiding through any Participant connection to Change temporarily double charging those the Matching System. Additionally, the customers that would simply like to In its filing with the Commission, the Exchange proposes removing the connect to the new facility and then CHX included statements concerning parenthetical reference to the effective subsequently disconnect from the the purpose of and basis for the date from the rule text. Chicago facility. To communicate this proposed rule changes and discussed Under new section D. 2. ‘‘Cross policy to all Participants, the Exchange any comments it received regarding the Connection Charges’’ the Exchange will proposes adding language to its Fee proposal. The text of these statements clarify in the heading that such charges Schedule indicating that no monthly may be examined at the places specified are for ‘‘physical’’ connectivity. The charges will be assessed under section in Item IV below. The CHX has prepared Exchange also proposes subdividing D. for CHX’s Equinix NY4 data center summaries, set forth in sections A, B new section D. 2. into cross connection location until April 1, 2012. The and C below, of the most significant charges that are available for: (a) Carrier aspects of such statements. equipment to customer equipment Exchange notes that it will waive only connections; and, (b) Customer the monthly fees applicable under A. Self-Regulatory Organization’s section D. and not one-time fees because Statement of the Purpose of, and equipment to CHX equipment connections. The Exchange notes that such fees are associated with the Statutory Basis for, the Proposed Rule establishment of a new physical Change the various charges specified in new section D. 2. (a) are those charges that connection. 1. Purpose previously appeared as ‘‘Data 2. Statutory Basis Through this filing, the Exchange Connections’’ under section G. ‘‘Co- proposes to amend its Schedule of Fees location Fees.’’ The Exchange believes The Exchange believes that the and Assessments (the ‘‘Fee Schedule’’) that moving these charges from section proposed rule change is consistent with to provide for certain new cross G. into section D. and thereby Section 6(b) of the Act 5 in general, and connection charges and to waive consolidating them with other types of furthers the objectives of Section 6(b)(4) monthly port fees and cross connection connection charges will clarify the Fee of the Act 6 in particular, in that it charges otherwise applicable to any Schedule. The Exchange also proposes provides for the equitable allocation of Participants connecting to CHX’s new deleting the subheading ‘‘Space’’ from reasonable dues, fees and other charges facilities in the Equinix NY4 data center Section G. ‘‘Co-location Fees’’ since it among members and other persons will no longer be needed to distinguish 3 15 U.S.C. 78s(b)(3)(A). space rental charges from connectivity 5 15 U.S.C. 78f. 4 17 CFR 240.19b–4(f)(2). charges. 6 15 U.S.C. 78f(b)(4).

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using any facility or system which the C. Self-Regulatory Organization’s change that are filed with the Exchange operates or controls. Statement on Comments Regarding the Commission, and all written Specifically, the Exchange believes Proposed Rule Change Received From communications relating to the that the addition of the 1G and 10G Members, Participants or Others proposed rule change between the cross connection charges specified No written comments were either Commission and any person, other than above is reasonable because these solicited or received. those that may be withheld from the charges are similar to those in effect for public in accordance with the equivalent services at other exchanges.7 III. Date of Effectiveness of the provisions of 5 U.S.C. 552, will be Proposed Rule Change and Timing for Furthermore, these charges are equitable available for Web site viewing and Commission Action and non-discriminatory in that they are printing in the Commission’s Public only charged to those Participants that The proposed rule change is to take Reference Room, 100 F Street NE., have exclusive use of the connection for effect pursuant to Section 19(b)(3)(A)(ii) Washington, DC 20549, on official 10 which the Exchange is charging. of the Act and subparagraph (f)(2) of business days between the hours of 10 11 The Exchange also believes that the Rule 19b–4 thereunder because it a.m. and 3 p.m. Copies of the filing also waiver of monthly fees otherwise establishes or changes a due, fee or will be available for inspection and applicable under section D. of its Fee other charge applicable to the copying at the principal office of the Exchange’s members and non-members, Schedule for connections established at Exchange. All comments received will which renders the proposed rule change its new NY4 facility until April 1, 2012 be posted without change; the effective upon filing. is both reasonable and equitable in that Commission does not edit personal it encourages all Participants to At any time within 60 days of the filing of the proposed rule change, the identifying information from establish connections at the new facility submissions. You should submit only but will ultimately impose new charges Commission summarily may information that you wish to make on those that have established temporarily suspend such rule change if available publicly. All submissions additional connections after that date. it appears to the Commission that such should refer to File Number SR–CHX– Furthermore, the Exchange believes that action is necessary or appropriate in the the waiver of monthly fees until a date public interest, for the protection of 2012–06 and should be submitted on or certain results in a non-discriminatory investors, or otherwise in furtherance of before March 15, 2012. application of fees in that it will not the purposes of the Act. For the Commission, by the Division of temporarily double charge those IV. Solicitation of Comments Trading and Markets, pursuant to delegated Participants that are transitioning to the authority.12 Interested persons are invited to new facility, provided the new Kevin M. O’Neill, connection is made and the old submit written data, views, and arguments concerning the foregoing, Deputy Secretary. connection discontinued prior to April [FR Doc. 2012–4150 Filed 2–22–12; 8:45 am] 1, 2012. including whether the proposed rule change is consistent with the Act. BILLING CODE 8011–01–P Finally, the Exchange believes that Comments may be submitted by any of the proposed consolidation of the following methods: connection charges and SECURITIES AND EXCHANGE other clarifying modifications to its Electronic Comments COMMISSION Fee Schedule are consistent with • Use the Commission’s Internet Section 6(b) of the Act 8 in general, and comment form (http://www.sec.gov/ further the objectives of Section 6(b)(5) [Release No. 34–66409; File No. SR– rules/sro.shtml); or NASDAQ–2012–027] of the Act 9 in particular, in that they • Send an email to rule- foster a better understanding of the [email protected]. Please include File Self-Regulatory Organizations; The various fees charged by the Exchange to Number SR–CHX–2012–06 on the NASDAQ Stock Market LLC; Notice of all Participants and other persons using subject line. Filing and Immediate Effectiveness of any facility or system which the Proposed Rule Change Relating to Exchange operates or controls. Paper Comments • Send paper comments in triplicate Routing Fees B. Self-Regulatory Organization’s to Elizabeth M. Murphy, Secretary, February 16, 2012. Statement of Burden on Competition Securities and Exchange Commission, The Exchange does not believe that 100 F Street NE., Washington, DC Pursuant to Section 19(b)(1) of the the proposed rule change will impose 20549–1090. Securities Exchange Act of 1934 1 2 any burden on competition that is not All submissions should refer to File (‘‘Act’’), and Rule 19b–4 thereunder, necessary or appropriate in furtherance Number SR–CHX–2012–06. This file notice is hereby given that on February of the purposes of the Act. The addition number should be included on the 13, 2012, The NASDAQ Stock Market of fees similar to those charged by subject line if email is used. To help the LLC (‘‘NASDAQ’’ or ‘‘Exchange’’) filed competing markets and the temporary Commission process and review your with the Securities and Exchange waiver of monthly fees at a new facility comments more efficiently, please use Commission (‘‘Commission’’) the during a brief transitional period will only one method. The Commission will proposed rule change as described in not impose any burden on competition. post all comments on the Commission’s Items I, II, and III below, which Items Internet Web site (http://www.sec.gov/ have been prepared by NASDAQ. The 7 See BATS BZX Exchange Fee Schedule, rules/sro.shtml). Copies of the Commission is publishing this notice to ‘‘Physical Connection Charges’’, p.4, available on submission, all subsequent solicit comments on the proposed rule BATS’ public Web site. See also DirectEdge EDGA amendments, all written statements change from interested persons. Exchange Fee Schedule, Physical Connectivity Fees, p. 3, available on DirectEdge’s public Web with respect to the proposed rule site. 12 17 CFR 200.30–3(a)(12). 8 15 U.S.C. 78f. 10 15 U.S.C. 78s(b)(3)(A)(ii). 1 15 U.S.C. 78s(b)(1). 9 15 U.S.C. 78f(b)(5). 11 17 CFR 240.19b–4(f)(2). 2 17 CFR 240.19b–4.

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I. Self-Regulatory Organization’s the Commission’s Public Reference A. Self-Regulatory Organization’s Statement of the Terms of Substance of Room. Statement of the Purpose of, and the Proposed Rule Change Statutory Basis for, the Proposed Rule II. Self-Regulatory Organization’s Change The NASDAQ Stock Market LLC Statement of the Purpose of, and proposes to modify Chapter XV, Section Statutory Basis for, the Proposed Rule 1. Purpose 2, governing pricing for NASDAQ Change The purpose of this rule filing is to members using the NASDAQ Options recoup costs that the Exchange incurs In its filing with the Commission, the Market (‘‘NOM’’), NASDAQ’s facility for for routing and executing Customer, Exchange included statements executing and routing standardized Firm, Market Maker and Professional concerning the purpose of and basis for equity and index options. orders in equity and index options. The the proposed rule change. The text of While changes to the Fee Schedule Exchange’s Routing Fees are located at these statements may be examined at Chapter XV, Section 2, entitled pursuant to this proposal are effective the places specified in Item IV below. ‘‘NASDAQ Options Market-Fees,’’ and upon filing, the Exchange has The Exchange has prepared summaries, are as follows: designated these changes to be operative set forth in sections A, B, and C below, (4) Fees for routing contracts to on March 1, 2012. of the most significant aspects of such markets other than the NASDAQ The text of the proposed rule change statements. Options Market shall be assessed as is available on the Exchange’s Web site provided below. The current fees and a at http:// historical record of applicable fees shall www.nasdaq.cchwallstreet.com, at the be posted on the NasdaqTrader.com principal office of the Exchange, and at Web site.

Exchange Customer Firm MM Professional

BATS ...... $0.50 $0.55 $0.55 $0.50 BOX ...... 0.06 0.55 0.55 0.06 CBOE ...... 0.06 0.55 0.55 0.26 CBOE orders greater than 99 contracts in NDX, MNX ETFs, ETNs & HOLDRs ...... 0.24 0.55 0.55 0.26 C2 ...... 0.50 0.55 0.55 0.51 ISE ...... 0.06 0.55 0.55 0.24 ISE Select Symbols * ...... 0.18 0.55 0.55 0.34 NYSE Arca Penny Pilot ...... 0.50 0.55 0.55 0.50 NYSE Arca Non Penny Pilot ...... 0.06 0.55 0.55 0.06 NYSE AMEX ...... 0.06 0.55 0.55 0.26 PHLX (for all options other than PHLX Select Symbols) ...... 0.06 0.55 0.55 0.26 PHLX Select Symbols ** ...... 0.30 0.55 0.55 0.46 * These fees are applicable to orders routed to ISE that are subject to Rebates and Fees for Adding and Removing Liquidity in Select Symbols. See ISE’s Schedule of Fees for the complete list of symbols that are subject to these fees. ** These fees are applicable to orders routed to PHLX that are subject to Rebates and Fees for Adding and Removing Liquidity in Select Sym- bols. See PHLX’s Fee Schedule for the complete list of symbols that are subject to these fees.

The Exchange proposes to amend its Options Market shall be assessed as be posted on the NasdaqTrader.com Routing Fees as follows: provided below. The current fees and a Web site. (4) Fees for routing contracts to historical record of applicable fees shall markets other than the NASDAQ

Exchange Customer Firm MM Professional

BATS ...... $0.55 $0.55 $0.55 $0.55 BOX ...... 0.11 0.55 0.55 0.11 CBOE ...... 0.11 0.55 0.55 0.31 CBOE orders greater than 99 contracts in NDX, MNX ETFs, ETNs & HOLDRs ...... 0.29 0.55 0.55 0.31 C2 ...... 0.55 0.55 0.55 0.55 ISE ...... 0.11 0.55 0.55 0.29 ISE Select Symbols * ...... 0.23 0.55 0.55 0.39 NYSE Arca Penny Pilot ...... 0.55 0.55 0.55 0.55 NYSE Arca Non Penny Pilot ...... 0.11 0.55 0.55 0.11 NYSE AMEX ...... 0.11 0.55 0.55 0.31 PHLX (for all options other than PHLX Select Symbols) ...... 0.11 0.55 0.55 0.31 PHLX Select Symbols ** ...... 0.35 0.55 0.55 0.51 * These fees are applicable to orders routed to ISE that are subject to Rebates and Fees for Adding and Removing Liquidity in Select Symbols. See ISE’s Schedule of Fees for the complete list of symbols that are subject to these fees. ** These fees are applicable to orders routed to PHLX that are subject to Rebates and Fees for Adding and Removing Liquidity in Select Sym- bols. See PHLX’s Fee Schedule for the complete list of symbols that are subject to these fees.

NASDAQ Options Services LLC the Exchange’s exclusive order router. NOS is charged a $0.06 clearing fee and, (‘‘NOS’’), a member of the Exchange, is Each time NOS routes to away markets in the case of certain exchanges, a

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transaction fee is also charged in certain The Exchange believes that these fees C. Self-Regulatory Organization’s symbols, which are passed through to will assist it in recouping costs the Statement on Comments on the the Exchange. The Exchange currently Exchange incurs by utilizing NOS, Proposed Rule Change Received From recoups clearing and transaction charges maintaining membership fees at away Members, Participants, or Others incurred by the Exchange when markets and technical expenses No written comments were either Customer, Firm, Market Maker and associated with the routing process.8 solicited or received. Professional orders are routed to an The proposed fees also continue to III. Date of Effectiveness of the away market. At this time, the Exchange recoup transaction fees assessed by the is proposing to recoup certain other Proposed Rule Change and Timing for respective away market, which vary, Commission Action costs incurred by the Exchange when and standard clearing charges for each routing to away markets, such as transaction, which fees are incurred by The foregoing rule change has become administrative and technical costs the Exchange when routing to away effective pursuant to Section associated with operating NOS, the 10 markets. Firms may avoid routing 19(b)(3)(A)(ii) of the Act. At any time Exchange’s exclusive order router; the within 60 days of the filing of the charges by either routing orders Exchange’s membership fees at away proposed rule change, the Commission markets; and technical costs associated themselves directly to the away market summarily may temporarily suspend with routing.3 The Exchange is that is at the NBBO, or by marking the such rule change if it appears to the proposing to increase all Customer and order with an instruction to not route Commission that such action is Professional Routing Fees. The the order. necessary or appropriate in the public Exchange is increasing all Customer and The Exchange also believes that the interest, for the protection of investors, Professional Routing Fees by $0.05 per proposed Routing Fees are equitable and or otherwise in furtherance of the contract with the exception of the C2 not unfairly discriminatory because the purposes of the Act. If the Commission Professional Fee, which is being fees would be uniformly applied to all takes such action, the Commission shall increased to $0.55 per contract (instead Customers and Professionals. The institute proceedings to determine of $0.56 per contract).4 The Exchange is Exchange’s proposed fees are calculated whether the proposed rule should be not proposing to amend Firm and to distribute the costs associated with approved or disapproved. Market Maker Routing Fees at this time. routing among the various away IV. Solicitation of Comments The Exchange does not believe it is markets. The Exchange determined not Interested persons are invited to necessary to increase Firm and Market to amend the Firm and Market Maker Maker Routing Fees beyond that which submit written data, views, and Routing Fees, which are currently the arguments concerning the foregoing, Firms and Market Makers are assessed highest Routing Fees ($0.55 per today for routing away.5 including whether the proposed rule contract) for each away market. In As with all fees, the Exchange may change is consistent with the Act. addition, the Exchange determined to adjust these Routing Fees in response to Comments may be submitted by any of competitive conditions by filing a new increase the C2 Professional Routing Fee the following methods: to $0.55 per contract, instead of $0.56 proposed rule change. While changes to Electronic Comments per contract 9 in order that the Routing the Fee Schedule pursuant to this • Fee would not exceed those fees Use the Commission’s Internet proposal are effective upon filing, the comment form (http://www.sec.gov/ Exchange has designated these changes currently assessed for Firm and Market Maker orders that are routed to an away rules/sro.shtml); or to be operative on March 1, 2012. • Send an email to rule- market. The Exchange determined that [email protected]. Please include File 2. Statutory Basis in light of other fees, the current Firm Number SR–NASDAQ–2012–027on the NASDAQ believes that the proposed and Market Maker Routing Fees for subject line. rule changes are consistent with the routing to all away markets are within provisions of Section 6 of the Act,6 in the range of fees that are proposed for Paper Comments general, and with Section 6(b)(4) of the other away markets. The Exchange does • Send paper comments in triplicate Act,7 in particular, in that it provides for not believe that it is necessary at this to Elizabeth M. Murphy, Secretary, the equitable allocation of reasonable time to assess additional Routing Fees to Securities and Exchange Commission, dues, fees and other charges among Firms and Market Makers to route to an 100 F Street NE., Washington, DC members and issuers and other persons away market. 20549–1090. using any facility or system which All submissions should refer to File B. Self-Regulatory Organization’s NASDAQ operates or controls. Number SR–NASDAQ–2012–027. This Statement on Burden on Competition The Exchange believes that the file number should be included on the proposed Routing Fees are reasonable The Exchange does not believe that subject line if email is used. To help the because the fees would allow the Commission process and review your Exchange to recoup costs associated the proposed rule change will impose any burden on competition not comments more efficiently, please use with routing both Customer and only one method. The Commission will Professional orders to away markets. necessary or appropriate in furtherance of the purposes of the Act. post all comments on the Commission’s Internet Web site (http://www.sec.gov/ 3 In addition to membership fees and transaction fees, the Exchange also incurs an Options rules/sro.shtml). Copies of the Regulatory Fee when routing to an away market that submission, all subsequent 8 assesses that fee. In addition to membership fees and transaction amendments, all written statements 4 The Professional Routing Fee to C2 is currently fees, the Exchange also incurs an Options with respect to the proposed rule Regulatory Fee when routing to an away market that $0.51 per contract. change that are filed with the 5 Today, Firms and Market Makers are assessed a assesses that fee. Routing Fee of $0.55 per contract when routing to 9 The Exchange is increasing all Customer and Commission, and all written any away market. Professional Routing Fees by $0.05 per contract communications relating to the 6 15 U.S.C. 78f. with the exception of the C2 Professional Fee, 7 15 U.S.C. 78f(b)(4). which is being increased to $0.55 per contract. 10 15 U.S.C. 78s(b)(3)(A)(ii).

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proposed rule change between the venues yet to be determined, is in the operate under parts 91 and 135 (aircraft Commission and any person, other than national interest. I have ordered that type certificated for a passenger seating those that may be withheld from the Public Notice of these Determinations configuration, excluding any pilot seat, public in accordance with the be published in the Federal Register. of 9 or fewer seats). That tasking was in provisions of 5 U.S.C. 552, will be FOR FURTHER INFORMATION CONTACT: For response to two recommendations from available for Web site viewing and further information, including a list of the National Transportation Safety printing in the Commission’s Public the exhibit objects, contact Julie Board (NTSB) (A–08–32 and A–08–33) Reference Room, 100 F Street NE., Simpson, Attorney-Adviser, Office of and an FAA recommendation on air Washington, DC 20549, on official the Legal Adviser, U.S. Department of tour accidents. The Commercial Air business days between the hours of 10 State (telephone: 202–632–6467). The Tours Maintenance (CATM) working a.m. and 3 p.m. Copies of the filing also mailing address is U.S. Department of group formed and met between will be available for inspection and State, SA–5, L/PD, Fifth Floor (Suite November 2009 and December 2010 to copying at the principal office of the 5H03), Washington, DC 20522–0505. address the ARAC tasking. On Exchange. All comments received will Dated: February 10, 2012. December 16, 2010, the CATM working be posted without change; the Commission does not edit personal J. Adam Ereli, group presented the findings and identifying information from Principal Deputy Assistant Secretary, Bureau recommendations to the ARAC submissions. You should submit only of Educational and Cultural Affairs, Executive Committee. One of the Department of State. information that you wish to make recommendations was to develop an available publicly. All submissions [FR Doc. 2012–4231 Filed 2–22–12; 8:45 am] Advisory Circular (AC) to create a should refer to File Number SR– BILLING CODE 4710–05–P voluntary accreditation program NASDAQ–2012–027 and should be modeled after the AC 00–56A, submitted on or before March 15, 2012. Voluntary Industry Distributor DEPARTMENT OF TRANSPORTATION For the Commission, by the Division of Accreditation Program. The FAA accepted the recommendations on Trading and Markets, pursuant to delegated Federal Aviation Administration authority.11 February 1, 2011. Kevin M. O’Neill, Aviation Rulemaking Advisory In December 2011, the FAA assigned Deputy Secretary. Committee—New Task ARAC a new task to develop a [FR Doc. 2012–4149 Filed 2–22–12; 8:45 am] comprehensive program of voluntary AGENCY: Federal Aviation BILLING CODE 8011–01–P accreditation for commercial air tour Administration (FAA), DOT. operators that are not required under ACTION: Notice of withdrawal of task parts 91 and 135 of Title 14 of the Code DEPARTMENT OF STATE assignment for the Aviation Rulemaking of Federal Regulations (14 CFR), to Advisory Committee (ARAC). [Public Notice 7805] maintain their aircraft under a SUMMARY: The FAA has withdrawn a continuous airworthiness maintenance Culturally Significant Objects Imported task assigned to the Aviation program (CAMP). This new task was the for Exhibition Determinations: ‘‘Loans Rulemaking Advisory Committee FAA’s response to one of the CATM From the Tsolozidis Collection’’ (ARAC) concerning commercial air recommendations. SUMMARY: Notice is hereby given of the tours. This notice is to inform the public The notice informing the public of following determinations: Pursuant to of the FAA’s decision to withdraw this this new ARAC activity published in the the authority vested in me by the Act of task. Federal Register on December 27, 2011 October 19, 1965 (79 Stat. 985; 22 U.S.C. FOR FURTHER INFORMATION CONTACT: (76 FR 81009), and included a request 2459), Executive Order 12047 of March Katherine Haley, Office of Rulemaking, for volunteers for the Commercial Air 27, 1978, the Foreign Affairs Reform and Federal Aviation Administration, 800 Tour Voluntary Accreditation Program Restructuring Act of 1998 (112 Stat. Independence Avenue SW., working group. The time period to 2681, et seq.; 22 U.S.C. 6501 note, et Washington, DC 20591; telephone: 202– volunteer expired on January 26, 2011. seq.), Delegation of Authority No. 234 of 493–5708, facsimile: 202–267–5075; We received minimal interest from the October 1, 1999, Delegation of Authority email: [email protected]. public, and have decided to withdraw No. 236–3 of August 28, 2000 (and, as SUPPLEMENTARY INFORMATION: the task due to a lack of adequate appropriate, Delegation of Authority No. representation on the working group. 257 of April 15, 2003), I hereby Background determine that the objects to be The FAA established ARAC to This notice informs the public of the included in the exhibition ‘‘Loans from provide advice and recommendations to withdrawal of the ARAC task that the Tsolozidis Collection’’ imported the FAA Administrator on the FAA’s would have been assigned to the from abroad for temporary exhibition rulemaking activities. ARAC’s objectives Commercial Air Tour Voluntary within the United States, are of cultural are to improve the development of the Accreditation Program Working Group. significance. The objects are imported FAA’s regulations by providing Issued in Washington, DC, on February 16, pursuant to a loan agreement with the information, advice, and 2012. foreign owner or custodian. I also recommendations related to aviation Pamela Hamilton-Powell, determine that the exhibition or display issues. Executive Director, Aviation Rulemaking of the exhibit objects at The On July 15, 2009, the FAA tasked Advisory Committee. Metropolitan Museum of Art, New York, ARAC (74 FR 34390) to provide advice [FR Doc. 2012–4175 Filed 2–22–12; 8:45 am] NY, from on or about March 12, 2012, and recommendations on a maintenance until on or about March 12, 2013, and quality assurance system, a maintenance BILLING CODE 4910–13–P at possible additional exhibitions or training program and a required inspection program for operators and air 11 17 CFR 200.30–3(a)(12). carriers that conduct air tours and

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DEPARTMENT OF TRANSPORTATION civil aviation authorities to ensure waiver process for shared use. See regulatory standards and policies Statement of Agency Policy Concerning Federal Aviation Administration related to all weather operations Jurisdiction Over the Safety of Railroad activities are standardized and Passenger Operations and Waivers Aviation Rulemaking Advisory harmonized in the interest of safety, and Related to Shared Use of the Tracks of Committee global economic efficiencies. the General Railroad System by Light AGENCY: Federal Aviation Withdrawal of the all weather Rail and Conventional Equipment, 65 Administration (FAA), DOT. operations task completes the activities FR 42529 (July 10, 2000); see also Joint that were assigned to ARAC’s Air Statement of Agency Policy Concerning ACTION: Notice of withdrawal of task Carrier Operations Technical Subject assignment to the Aviation Rulemaking Shared Use of the Tracks of the General Area. Because the FAA does not intend Advisory Committee (ARAC). Railroad System by Conventional to assign any additional tasks to this Railroads and Light Rail Transit SUMMARY: The FAA has withdrawn a technical area, the Air Carrier Systems, 65 FR 42626 (July 10, 2000). task assigned to the Aviation Operations Technical Subject Area is The Port of Los Angeles received its Rulemaking Advisory Committee closed. The FAA has vetted the initial waiver and permission from FRA (ARAC) concerning all weather withdrawal of this task and our decision on May 8, 2002. The Port of Los Angeles operations. This notice is to inform the to close the Air Carrier Operations was granted a 5-year extension of the public of the FAA’s decision to Technical Subject Area with the ARAC. terms and conditions of the original withdraw this task. Issued in Washington, DC, on February 13, waiver on April 24, 2007. FOR FURTHER INFORMATION CONTACT: 2012. The Port of Los Angeles stated in its Brenda D. Courtney, Manager, Aircraft Pamela Hamilton-Powell, most recent petition that it desires to and Airport Rules Division, Office of Executive Director, Aviation Rulemaking continue the operation of the Red Car Rulemaking, Federal Aviation Advisory Committee. Line under the same rules, procedures, and directives as originally prescribed Administration, 800 Independence [FR Doc. 2012–3891 Filed 2–22–12; 8:45 am] and granted by FRA. The Port of Los Avenue SW., Washington, DC 20591, BILLING CODE 4910–13–P [email protected]. Angeles operates the ‘‘Waterfront Red Car Line’’ over 1.5 miles of PHL track, SUPPLEMENTARY INFORMATION: DEPARTMENT OF TRANSPORTATION located in the Port of Los Angeles. Background Freight and vintage trolley operations Federal Railroad Administration are temporally separated on this portion The FAA established ARAC to of track. PHL no longer services [Docket Number FRA–2001–10237] provide advice and recommendations to Westway Terminal’s tank farm on this the FAA Administrator on the FAA’s Petition for Waiver of Compliance portion of track. rulemaking activities. This includes A copy of the petition, as well as any obtaining advice and recommendations In accordance with Part 211 of Title written communications concerning the on the FAA’s commitments to 49 of the Code of Federal Regulations petition, is available for review online at harmonize Title 14 of the Code of (CFR), this document provides the www.regulations.gov and in person at Federal Regulations (14 CFR) with its public notice that by a document dated the U.S. Department of Transportation’s partners in Europe and Canada. February 1, 2012, the Port of Los (DOT) Docket Operations Facility, 1200 On November 26, 2003, the FAA Angeles, with the cooperation and input New Jersey Avenue SE., W12–140, published a notice in the Federal of Pacific Harbor Line (PHL), has Washington, DC 20590. The Docket Register (68 FR 66524) informing the petitioned the Federal Railroad Operations Facility is open from 9 a.m. public of ARAC’s acceptance of a new Administration (FRA) for an extension to 5 p.m., Monday through Friday, task, and its decision to assign the task of its waivers of compliance from except Federal holidays. to the All Weather Operations certain provisions of the Federal Interested parties are invited to Harmonization Working Group. Over railroad safety regulations contained at participate in these proceedings by the years since assigning this task to 49 CFR part 217, Railroad Operating submitting written views, data, or ARAC, the working group has provided Rules; part 220, Railroad comments. FRA does not anticipate support to the FAA, other civil aviation Communications; part 221, Rear End scheduling a public hearing in authorities and the International Civil Marking Device—Passenger, Commuter connection with these proceedings since Aviation Organization (ICAO). This and Freight Trains; part 223, Safety the facts do not appear to warrant a collaborative effort has brought about Glazing Standards—Locomotives, hearing. If any interested party desires standardized and harmonized systems Passenger Cars and Cabooses; part 225, an opportunity for oral comment, they and processes such as the Enhanced Railroad Accidents/Incidents: Reports should notify FRA, in writing, before Flight Vision System and use of radar Classification, and Investigations; part the end of the comment period and altimeters in Europe. The working group 228, Hours of Service of Railroad specify the basis for their request. has also provided support to the ICAO Employees; Recordkeeping and All communications concerning these Operations Panel and provided updates Reporting; Sleeping Quarters; part 228, proceedings should identify the to the All Weather Operations Manual Subpart A—General, and Subpart B— appropriate docket number and may be for ICAO. These efforts are important to Records and Reporting; part 229, submitted by any of the following the FAA and other civil aviation Railroad Locomotive Safety Standards; methods: authorities; however, they are not tasks part 231, Railroad Safety Appliance • Web site: http:// typically assigned to ARAC. As such, Standards; part 238, Passenger www.regulations.gov. Follow the online the FAA has decided to continue these Equipment Safety Standards; and part instructions for submitting comments. efforts under a different venue. We 239, Passenger Train Emergency • Fax: 202–493–2251. anticipate establishing a separate Preparedness. FRA assigned the petition • Mail: Docket Operations Facility, committee charged to work Docket Number FRA–2001–10237. U.S. Department of Transportation, 1200 collaboratively among the international The Port of Los Angeles explained New Jersey Avenue SE., W12–140, aviation community, the FAA and other that their request is consistent with the Washington, DC 20590.

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• Hand Delivery: 1200 New Jersey of hazardous materials. Title 49 CFR ADDRESSES: Comments should refer to Avenue SE., Room W12–140, 174.50 of the HMR forbids the docket number MARAD–2012–0014. Washington, DC 20590, between 9 a.m. transportation by rail of a bulk Written comments may be submitted by and 5 p.m., Monday through Friday, packaging that no longer conforms to hand or by mail to the Docket Clerk, except Federal holidays. HMR or that is leaking, unless otherwise U.S. Department of Transportation, Communications received by April 9, approved by FRA’s Associate Docket Operations, M–30, West 2012 will be considered by FRA before Administrator for Railroad Safety/Chief Building Ground Floor, Room W12–140, final action is taken. Comments received Safety Officer. These approvals are 1200 New Jersey Avenue SE., after that date will be considered as far generally referred to as one-time Washington, DC 20590. You may also as practicable. movement approvals (OTMA). send comments electronically via the Anyone is able to search the Recently, FRA revised its OTMA Internet at http://www.regulations.gov. electronic form of any written procedures to streamline the overall All comments will become part of this communications and comments OTMA process and to minimize docket and will be available for received into any of our dockets by the unnecessary administrative burdens. On inspection and copying at the above name of the individual submitting the January 31, 2012, FRA issued Guidance address between 10 a.m. and 5 p.m., comment (or signing the comment, if Document HMG–127, which explains E.T., Monday through Friday, except submitted on behalf of an association, these revised procedures and the criteria federal holidays. An electronic version business, labor union, etc.). You may for issuance of OTMAs. Guidance of this document and all documents review DOT’s complete Privacy Act Document HMG–127 is available for entered into this docket is available on Statement in the Federal Register review on FRA’s Web site at: http:// the World Wide Web at http:// published on April 11, 2000 (Volume www.fra.dot.gov/Pages/789.shtml. In www.regulations.gov. 65, Number 70; Pages 19477–78), or addition, FRA has created a revised FOR FURTHER INFORMATION CONTACT: online at http://www.dot.gov/ OTMA application information Joann Spittle, U.S. Department of privacy.html. document that also reflects the revised Transportation, Maritime OTMA procedures. The new OTMA Issued in Washington, DC, on February 16, Administration, 1200 New Jersey 2012. application information document is Avenue SE., Room W21–203, also available on FRA’s Web site at: Ron Hynes, Washington, DC 20590. Telephone 202– http://www.fra.dot.gov/rrs/pages/ 366–5979, Email [email protected]. Acting Deputy Associate Administrator for fp_1799.shtml. FRA staff can provide Regulatory and Legislative Operations. SUPPLEMENTARY INFORMATION: As copies of these documents for review described by the applicant the intended [FR Doc. 2012–4159 Filed 2–22–12; 8:45 am] upon request if contacted at the address service of the vessel FLAMINGO is: BILLING CODE 4910–06–P and telephone numbers listed above. Intended Commercial Use of Vessel: Issued in Washington, DC, on February 14, ‘‘Charter work with the Boy Scouts at DEPARTMENT OF TRANSPORTATION 2012. the Florida Sea Base in Islamorada, Ron Hynes, Florida. Teaching, sailing, snorkeling, Federal Railroad Administration Acting Deputy Associate Administrator for fishing, etc.’’ Regulatory and Legislative Operations. Geographic Region: ‘‘Florida.’’ Revised Guidance for Requesting One- [FR Doc. 2012–3927 Filed 2–22–12; 8:45 am] The complete application is given in Time Movement (OTM) Approvals BILLING CODE 4910–06–P DOT docket MARAD–2012–0014 at AGENCY: Federal Railroad http://www.regulations.gov. Interested Administration (FRA), Department of parties may comment on the effect this Transportation (DOT). DEPARTMENT OF TRANSPORTATION action may have on U.S. vessel builders or businesses in the U.S. that use U.S.- ACTION: Notice of Availability. Maritime Administration flag vessels. If MARAD determines, in SUMMARY: FRA is notifying the public of [Docket No. MARAD 2012 0014] accordance with 46 U.S.C. 12121 and the availability of revised guidance for MARAD’s regulations at 46 CFR part requesting OTM approvals for the Requested Administrative Waiver of 388, that the issuance of the waiver will transportation by rail of nonconforming the Coastwise Trade Laws: Vessel have an unduly adverse effect on a U.S.- or leaking bulk hazardous material FLAMINGO; Invitation for Public vessel builder or a business that uses packages. Comments U.S.-flag vessels in that business, a waiver will not be granted. Comments FOR FURTHER INFORMATION CONTACT: Karl AGENCY: Maritime Administration, should refer to the docket number of Alexy, Acting Staff Director, Hazardous Department of Transportation. this notice and the vessel name in order Materials Division, Office of Safety ACTION: Notice. for MARAD to properly consider the Assurance and Compliance, FRA, 1200 comments. Comments should also state New Jersey Avenue SE., Mailstop 25, SUMMARY: As authorized by 46 U.S.C. the commenter’s interest in the waiver Washington, DC 20590, telephone: (202) 12121, the Secretary of Transportation, application, and address the waiver 493–6245; or Lisa Matsinger, Railroad as represented by the Maritime criteria given in § 388.4 of MARAD’s Safety Specialist, Hazardous Materials Administration (MARAD), is authorized regulations at 46 CFR part 388. Division, Office of Safety Assurance and to grant waivers of the U.S.-build Compliance, FRA, 1200 New Jersey requirement of the coastwise laws under Privacy Act Avenue SE., Washington, DC 20590, certain circumstances. A request for Anyone is able to search the telephone: (202) 493–0324. such a waiver has been received by electronic form of all comments SUPPLEMENTARY INFORMATION: The MARAD. The vessel, and a brief received into any of our dockets by the Hazardous Materials Regulations (HMR) description of the proposed service, is name of the individual submitting the issued by the Pipeline and Hazardous listed below. comment (or signing the comment, if Materials Safety Administration DATES: Submit comments on or before submitted on behalf of an association, (PHMSA) govern the rail transportation March 26, 2012. business, labor union, etc.). You may

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review DOT’s complete Privacy Act SUPPLEMENTARY INFORMATION: As as represented by the Maritime Statement in the Federal Register described by the applicant the intended Administration (MARAD), is authorized published on April 11, 2000 (Volume service of the vessel LAURENE is: to grant waivers of the U.S.-build 65, Number 70; Pages 19477–78). Intended Commercial Use of Vessel: requirement of the coastwise laws under By Order of the Maritime Administrator. ‘‘Charter, motor/sailing/snorkeling/ certain circumstances. A request for scuba/diving and instruction, sport such a waiver has been received by Dated: February 13, 2012. fishing site seeing, ferry, travel, etc.’’ MARAD. The vessel, and a brief Julie P. Agarwal, Geographic Region: ‘‘U.S. East Coast: description of the proposed service, is Secretary, Maritime Administration. ME, NH, MA, RI, CT, NY, NJ, DE, MD, listed below. [FR Doc. 2012–4126 Filed 2–22–12; 8:45 am] DC, VA, NC, SC, GA, FL, Puerto Rico.’’ DATES: Submit comments on or before BILLING CODE 4910–81–P The complete application is given in March 26, 2012. DOT docket MARAD–2012–0009 at ADDRESSES: Comments should refer to http://www.regulations.gov. Interested docket number MARAD–2012–0008. DEPARTMENT OF TRANSPORTATION parties may comment on the effect this Written comments may be submitted by action may have on U.S. vessel builders hand or by mail to the Docket Clerk, Maritime Administration or businesses in the U.S. that use U.S.- U.S. Department of Transportation, flag vessels. If MARAD determines, in [Docket No. MARAD–2012 0009] Docket Operations, M–30, West accordance with 46 U.S.C. 12121 and Building Ground Floor, Room W12–140, MARAD’s regulations at 46 CFR Part Requested Administrative Waiver of 1200 New Jersey Avenue SE., 388, that the issuance of the waiver will the Coastwise Trade Laws: Vessel Washington, DC 20590. You may also LAURENE; Invitation for Public have an unduly adverse effect on a U.S.- send comments electronically via the Comments vessel builder or a business that uses Internet at http://www.regulations.gov. U.S.-flag vessels in that business, a All comments will become part of this AGENCY: Maritime Administration, waiver will not be granted. Comments Department of Transportation. docket and will be available for should refer to the docket number of inspection and copying at the above ACTION: Notice. this notice and the vessel name in order address between 10 a.m. and 5 p.m., for MARAD to properly consider the E.T., Monday through Friday, except SUMMARY: As authorized by 46 U.S.C. comments. Comments should also state 12121, the Secretary of Transportation, federal holidays. An electronic version the commenter’s interest in the waiver of this document and all documents as represented by the Maritime application, and address the waiver Administration (MARAD), is authorized entered into this docket is available on criteria given in § 388.4 of MARAD’s the World Wide Web at http:// to grant waivers of the U.S.-build regulations at 46 CFR Part 388. requirement of the coastwise laws under www.regulations.gov. certain circumstances. A request for Privacy Act FOR FURTHER INFORMATION CONTACT: such a waiver has been received by Anyone is able to search the Joann Spittle, U.S. Department of MARAD. The vessel, and a brief electronic form of all comments Transportation, Maritime description of the proposed service, is received into any of our dockets by the Administration, 1200 New Jersey listed below. name of the individual submitting the Avenue SE., Room W21–203, DATES: Submit comments on or before comment (or signing the comment, if Washington, DC 20590. Telephone 202– March 26, 2012. submitted on behalf of an association, 366–5979, Email [email protected]. ADDRESSES: Comments should refer to business, labor union, etc.). You may SUPPLEMENTARY INFORMATION: As docket number MARAD–2012–0009. review DOT’s complete Privacy Act described by the applicant the intended Written comments may be submitted by Statement in the Federal Register service of the vessel ALTERNATE hand or by mail to the Docket Clerk, published on April 11, 2000 (Volume LATITUDE is: U.S. Department of Transportation, 65, Number 70; Pages 19477–78). Intended Commercial Use of Vessel: Docket Operations, M–30, West By Order of the Maritime Administrator. ‘‘Sailing charters, day sails and possibly some overnight trips as well.’’ Building Ground Floor, Room W12–140, Dated: February 13, 2012. Geographic Region: ‘‘Texas, 1200 New Jersey Avenue SE., Julie P. Agarwal, Louisiana, Florida.’’ Washington, DC 20590. You may also Secretary, Maritime Administration. The complete application is given in send comments electronically via the [FR Doc. 2012–4136 Filed 2–22–12; 8:45 am] DOT docket MARAD–2012–0008 at Internet at http://www.regulations.gov. BILLING CODE 4910–81–P http://www.regulations.gov. Interested All comments will become part of this parties may comment on the effect this docket and will be available for action may have on U.S. vessel builders inspection and copying at the above DEPARTMENT OF TRANSPORTATION or businesses in the U.S. that use U.S.- address between 10 a.m. and 5 p.m., flag vessels. If MARAD determines, in Maritime Administration E.T., Monday through Friday, except accordance with 46 U.S.C. 12121 and Federal holidays. An electronic version [Docket No. MARAD 2012 0008] MARAD’s regulations at 46 CFR Part of this document and all documents 388, that the issuance of the waiver will entered into this docket is available on Requested Administrative Waiver of have an unduly adverse effect on a U.S.- the World Wide Web at http:// the Coastwise Trade Laws: Vessel vessel builder or a business that uses www.regulations.gov. ALTERNATE LATITUDE; Invitation for U.S.-flag vessels in that business, a FOR FURTHER INFORMATION CONTACT: Public Comments waiver will not be granted. Comments Joann Spittle, U.S. Department of AGENCY: Maritime Administration, should refer to the docket number of Transportation, Maritime Department of Transportation. this notice and the vessel name in order Administration, 1200 New Jersey ACTION: Notice. for MARAD to properly consider the Avenue SE., Room W21–203, comments. Comments should also state Washington, DC 20590. Telephone 202– SUMMARY: As authorized by 46 U.S.C. the commenter’s interest in the waiver 366–5979, Email [email protected]. 12121, the Secretary of Transportation, application, and address the waiver

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criteria given in § 388.4 of MARAD’s the World Wide Web at http:// DEPARTMENT OF TRANSPORTATION regulations at 46 CFR Part 388. www.regulations.gov. Maritime Administration Privacy Act FOR FURTHER INFORMATION CONTACT: [Docket No. MARAD 2012 0010] Anyone is able to search the Joann Spittle, U.S. Department of electronic form of all comments Transportation, Maritime Requested Administrative Waiver of received into any of our dockets by the Administration, 1200 New Jersey the Coastwise Trade Laws: Vessel ZIA; name of the individual submitting the Avenue SE., Room W21–203, Invitation for Public Comments comment (or signing the comment, if Washington, DC 20590. Telephone 202– submitted on behalf of an association, 366–5979, Email [email protected]. AGENCY: Maritime Administration, business, labor union, etc.). You may Department of Transportation. review DOT’s complete Privacy Act SUPPLEMENTARY INFORMATION: As ACTION: Notice. Statement in the Federal Register described by the applicant the intended published on April 11, 2000 (Volume service of the vessel XIUMA is: SUMMARY: As authorized by 46 U.S.C. 12121, the Secretary of Transportation, 65, Number 70; Pages 19477–78). Intended Commercial Use of Vessel: as represented by the Maritime ‘‘charter six pac.’’ By Order of the Maritime Administrator. Administration (MARAD), is authorized Dated: February 13, 2012. Geographic Region: ‘‘Rhode Island, to grant waivers of the U.S.-build Julie P. Agarwal, Florida, California.’’ requirement of the coastwise laws under Secretary, Maritime Administration. The complete application is given in certain circumstances. A request for [FR Doc. 2012–4138 Filed 2–22–12; 8:45 am] DOT docket MARAD–2012–0007 at such a waiver has been received by BILLING CODE 4910–81–P http://www.regulations.gov. Interested MARAD. The vessel, and a brief parties may comment on the effect this description of the proposed service, is action may have on U.S. vessel builders listed below. DEPARTMENT OF TRANSPORTATION or businesses in the U.S. that use U.S.- DATES: Submit comments on or before March 26, 2012. Maritime Administration flag vessels. If MARAD determines, in accordance with 46 U.S.C. 12121 and ADDRESSES: Comments should refer to [Docket No. MARAD 2012 0007] MARAD’s regulations at 46 CFR part docket number MARAD–2012–0010. 388, that the issuance of the waiver will Written comments may be submitted by Requested Administrative Waiver of have an unduly adverse effect on a U.S.- hand or by mail to the Docket Clerk, the Coastwise Trade Laws: Vessel U.S. Department of Transportation, XIUMA; Invitation for Public Comments vessel builder or a business that uses U.S.-flag vessels in that business, a Docket Operations, M–30, West AGENCY: Maritime Administration, waiver will not be granted. Comments Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Department of Transportation. should refer to the docket number of Washington, DC 20590. You may also ACTION: Notice. this notice and the vessel name in order send comments electronically via the for MARAD to properly consider the SUMMARY: Internet at http://www.regulations.gov. As authorized by 46 U.S.C. comments. Comments should also state 12121, the Secretary of Transportation, All comments will become part of this the commenter’s interest in the waiver as represented by the Maritime docket and will be available for application, and address the waiver Administration (MARAD), is authorized inspection and copying at the above criteria given in § 388.4 of MARAD’s to grant waivers of the U.S.-build address between 10 a.m. and 5 p.m., requirement of the coastwise laws under regulations at 46 CFR part 388. E.T., Monday through Friday, except certain circumstances. A request for Privacy Act Federal holidays. An electronic version such a waiver has been received by of this document and all documents MARAD. The vessel, and a brief Anyone is able to search the entered into this docket is available on description of the proposed service, is electronic form of all comments the World Wide Web at http:// listed below. received into any of our dockets by the www.regulations.gov. DATES: Submit comments on or before name of the individual submitting the FOR FURTHER INFORMATION CONTACT: March 26, 2012. comment (or signing the comment, if Joann Spittle, U.S. Department of ADDRESSES: Comments should refer to submitted on behalf of an association, Transportation, Maritime docket number MARAD–2012–0007. business, labor union, etc.). You may Administration, 1200 New Jersey Written comments may be submitted by review DOT’s complete Privacy Act Avenue SE., Room W21–203, hand or by mail to the Docket Clerk, Statement in the Federal Register Washington, DC 20590. Telephone 202– U.S. Department of Transportation, published on April 11, 2000 (Volume 366–5979, Email [email protected]. Docket Operations, M–30, West 65, Number 70; Pages 19477–78). SUPPLEMENTARY INFORMATION: As Building Ground Floor, Room W12–140, By Order of the Maritime Administrator. described by the applicant the intended 1200 New Jersey Avenue SE., service of the vessel ZIA is: Dated: February 13, 2012. Washington, DC 20590. You may also Intended Commercial Use of Vessel: send comments electronically via the Julie P. Agarwal, ‘‘Recreational registry and coastwise. Internet at http://www.regulations.gov. Secretary, Maritime Administration. Short & long term.’’ All comments will become part of this [FR Doc. 2012–4137 Filed 2–22–12; 8:45 am] Geographic Region: ‘‘California, docket and will be available for BILLING CODE 4910–81–P Oregon, Washington, Texas.’’ inspection and copying at the above The complete application is given in address between 10 a.m. and 5 p.m., DOT docket MARAD–2012–0010 at E.T., Monday through Friday, except http://www.regulations.gov Interested Federal holidays. An electronic version parties may comment on the effect this of this document and all documents action may have on U.S. vessel builders entered into this docket is available on or businesses in the U.S. that use U.S.-

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flag vessels. If MARAD determines, in U.S. Department of Transportation, Dated: February 13, 2012. accordance with 46 U.S.C. 12121 and Docket Operations, M–30, West Julie P. Agarwal, MARAD’s regulations at 46 CFR part Building Ground Floor, Room W12–140, Secretary, Maritime Administration. 388, that the issuance of the waiver will 1200 New Jersey Avenue SE., [FR Doc. 2012–4132 Filed 2–22–12; 8:45 am] have an unduly adverse effect on a U.S.- Washington, DC 20590. You may also BILLING CODE 4910–81–P vessel builder or a business that uses send comments electronically via the U.S.-flag vessels in that business, a Internet at http://www.regulations.gov. waiver will not be granted. Comments All comments will become part of this DEPARTMENT OF TRANSPORTATION should refer to the docket number of docket and will be available for this notice and the vessel name in order inspection and copying at the above Maritime Administration for MARAD to properly consider the address between 10 a.m. and 5 p.m., [Docket No. MARAD 2012 0012] comments. Comments should also state E.T., Monday through Friday, except the commenter’s interest in the waiver federal holidays. An electronic version Requested Administrative Waiver of application, and address the waiver of this document and all documents the Coastwise Trade Laws: Vessel criteria given in § 388.4 of MARAD’s entered into this docket is available on SILVER MOON; Invitation for Public regulations at 46 CFR part 388. the World Wide Web at http:// Comments www.regulations.gov. Privacy Act AGENCY: Maritime Administration, Anyone is able to search the FOR FURTHER INFORMATION CONTACT: Department of Transportation. electronic form of all comments Joann Spittle, U.S. Department of ACTION: Notice. received into any of our dockets by the Transportation, Maritime name of the individual submitting the Administration, 1200 New Jersey SUMMARY: As authorized by 46 U.S.C. comment (or signing the comment, if Avenue SE., Room W21–203, 12121, the Secretary of Transportation, submitted on behalf of an association, Washington, DC 20590. Telephone 202– as represented by the Maritime business, labor union, etc.). You may 366–5979, Email [email protected]. Administration (MARAD), is authorized to grant waivers of the U.S.-build review DOT’s complete Privacy Act SUPPLEMENTARY INFORMATION: As requirement of the coastwise laws under Statement in the Federal Register described by the applicant the intended certain circumstances. A request for published on April 11, 2000 (Volume service of the vessel SELAH is: 65, Number 70; Pages 19477–78). such a waiver has been received by Intended Commercial Use of Vessel: MARAD. The vessel, and a brief By Order of the Maritime Administrator. ‘‘Skippered charters.’’ description of the proposed service, is Dated: February 13, 2012. Geographic Region: ‘‘California.’’ listed below. Julie P. Agarwal, The complete application is given in DATES: Submit comments on or before Secretary, Maritime Administration. DOT docket MARAD–2012–0011 at March 26, 2012. [FR Doc. 2012–4135 Filed 2–22–12; 8:45 am] http://www.regulations.gov. Interested ADDRESSES: Comments should refer to BILLING CODE 4910–81–P parties may comment on the effect this docket number MARAD–2012–0012. action may have on U.S. vessel builders Written comments may be submitted by or businesses in the U.S. that use U.S.- hand or by mail to the Docket Clerk, DEPARTMENT OF TRANSPORTATION flag vessels. If MARAD determines, in U.S. Department of Transportation, accordance with 46 U.S.C. 12121 and Docket Operations, M–30, West Maritime Administration MARAD’s regulations at 46 CFR part Building Ground Floor, Room W12–140, [Docket No. MARAD 2011] 388, that the issuance of the waiver will 1200 New Jersey Avenue SE., have an unduly adverse effect on a U.S.- Washington, DC 20590. You may also Requested Administrative Waiver of vessel builder or a business that uses send comments electronically via the the Coastwise Trade Laws: Vessel U.S.-flag vessels in that business, a Internet at http://www.regulations.gov. SELAH; Invitation for Public waiver will not be granted. Comments All comments will become part of this Comments should refer to the docket number of docket and will be available for this notice and the vessel name in order AGENCY: Maritime Administration, inspection and copying at the above for MARAD to properly consider the Department of Transportation. address between 10 a.m. and 5 p.m., comments. Comments should also state E.T., Monday through Friday, except ACTION: Notice. the commenter’s interest in the waiver Federal holidays. An electronic version SUMMARY: As authorized by 46 U.S.C. application, and address the waiver of this document and all documents 12121, the Secretary of Transportation, criteria given in § 388.4 of MARAD’s entered into this docket is available on as represented by the Maritime regulations at 46 CFR part 388. the World Wide Web at http:// Administration (MARAD), is authorized Privacy Act www.regulations.gov. to grant waivers of the U.S.-build FOR FURTHER INFORMATION CONTACT: requirement of the coastwise laws under Anyone is able to search the Joann Spittle, U.S. Department of certain circumstances. A request for electronic form of all comments Transportation, Maritime such a waiver has been received by received into any of our dockets by the Administration, 1200 New Jersey MARAD. The vessel, and a brief name of the individual submitting the Avenue SE., Room W21–203, description of the proposed service, is comment (or signing the comment, if Washington, DC 20590. Telephone 202– listed below. submitted on behalf of an association, 366–5979, Email [email protected]. business, labor union, etc.). You may DATES: Submit comments on or before SUPPLEMENTARY INFORMATION: As March 26, 2012. review DOT’s complete Privacy Act Statement in the Federal Register described by the applicant the intended ADDRESSES: Comments should refer to published on April 11, 2000 (Volume service of the vessel SILVER MOON is: docket number MARAD–2012–0011. Intended Commercial Use of Vessel: 65, Number 70; Pages 19477–78). Written comments may be submitted by ‘‘Catamaran Sailing Charters, both term hand or by mail to the Docket Clerk, By Order of the Maritime Administrator. and day charters with 6 or fewer

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passengers. All charters to have captain published on April 11, 2000 (Volume Marine Highway Program. The PEA will aboard.’’ 65, Number 70; Pages 19477–78). identify and assess potential Geographic Region: ‘‘Most charters in By Order of the Maritime Administrator. environmental impacts from the Rhode Island and Massachusetts waters. Dated: February 13, 2012. proposed actions and a range of Additionally in Connecticut, New Julie P. Agarwal, reasonable alternatives so MarAd can determine, what if any, additional Hampshire, and Maine.’’ Secretary, Maritime Administration. The complete application is given in analysis may be required including, [FR Doc. 2012–4133 Filed 2–22–12; 8:45 am] whether to prepare environmental DOT docket MARAD–2012–0012 at BILLING CODE 4910–81–P http://www.regulations.gov. Interested impact statement(s) (EIS) or issuing parties may comment on the effect this finding(s) of no significant impact action may have on U.S. vessel builders DEPARTMENT OF TRANSPORTATION (FONSI). MarAd is initiating a scoping or businesses in the U.S. that use U.S.- process to identify community concerns flag vessels. If MARAD determines, in Maritime Administration and local issues that will be addressed in the PEA. MarAd plans to hold public accordance with 46 U.S.C. 12121 and [Docket Number MARAD–2012–0015] MARAD’s regulations at 46 CFR part scoping meetings regionally to obtain 388, that the issuance of the waiver will Intent of Preparation of a input from the public. The meetings have an unduly adverse effect on a U.S.- Programmatic Environmental will be conducted using an open house vessel builder or a business that uses Assessment, To Open a Public format with informational displays and U.S.-flag vessels in that business, a Scoping Period, and To Conduct materials available for public review. waiver will not be granted. Comments Public Scoping Meetings There will be no formal presentations. should refer to the docket number of MarAd staff will be present at this open AGENCY: U.S. Department of this notice and the vessel name in order house to answer general questions on Transportation, Maritime for MARAD to properly consider the the proposed action and the PEA Administration. comments. Comments should also state process. If at any point during the the commenter’s interest in the waiver ACTION: Notice of Intent of Preparation preparation of the PEA, MarAd application, and address the waiver of a Programmatic Environmental determines that it is necessary to criteria given in § 388.4 of MARAD’s Assessment, to Open a Public Scoping prepare an EIS, this scoping process will regulations at 46 CFR Part 388. Period, and to Conduct Public Scoping serve as the scoping process that would Meetings. normally follow a Notice of Intent to Privacy Act prepare an EIS. SUMMARY: Notice is hereby given that Anyone is able to search the the Maritime Administration (MarAd), Dates and Locations: The NEPA electronic form of all comments of the U.S. Department of scoping period ends on April 16, 2012. received into any of our dockets by the Transportation (U.S. DOT), will prepare Comments will only be accepted at the name of the individual submitting the a Programmatic Environmental scoping meetings or on regulations.gov comment (or signing the comment, if Assessment (PEA) in compliance with under the docket number 2012–0015. submitted on behalf of an association, the National Environmental Policy Act Comment forms will be provided at business, labor union, etc.). You may of 1969 that will evaluate potential each public scoping meeting. Comments review DOT’s complete Privacy Act environmental effects associated with received at the meetings will be scanned Statement in the Federal Register the performance of the America’s and uploaded to the docket.

City/state Date Location Time

East Coast/Gulf Coast

Charleston, South Carolina Tuesday, March 6, 2012 ...... North Charleston High School: 1087 East Montague Avenue, 6–8 p.m. (SC). North Charleston, SC 29405. New Orleans, Louisiana (LA) ... Thursday, March 8, 2012 ...... De La Salle High School: 5300 Saint Charles Ave, New Orle- 6–8 p.m. ans, LA 70115. Miami, Florida (FL) ...... Tuesday, March 13, 2012 ...... Florida Department of Transportation: District Six, 1000 NW 6–8 p.m. 111 Avenue, Miami, FL 33172. Boston, Massachusetts (MA) .... Thursday, March 15, 2012 ...... Charlestown High School: 240 Medford Street, Charlestown, 6–8 p.m. MA 02129.

West Coast/Great Lakes/Mississippi

San Diego, California (CA) ...... Tuesday, March 20, 2012 ...... Coronado Public Library: 640 Orange Avenue, Coronado, CA 6–8 p.m. 92118. Portland, Oregon (OR) ...... Thursday, March 22, 2012 ...... Roosevelt High School: 6941 N Central Street, Portland, OR 6–8 p.m. 97203. Chicago, Illinois (IL) ...... Monday, March 26, 2012 ...... Jones College Prep School: 606 South State Street, Chicago, 6–8 p.m. IL 60605. Cleveland, Ohio (OH)...... Wednesday, March 28, 2012 .. Horizon Science Academy Cleveland High School: 6000 6–8 p.m. South Marginal Road, Cleveland, OH 44103. St. Louis, Missouri (MO) ...... Thursday, March 29, 2012 ...... Jennings Junior High School: 8831 Cozens Avenue, St. Louis, 6–8 p.m. MO 63136.

FOR FURTHER INFORMATION CONTACT: (202) 366–0714; or email: deaf (TDD) may call the Federal Daniel Yuska, 1200 New Jersey Ave., [email protected]. Persons who use Information Relay Service (FIRS) at 1– SE., Washington, DC 20590; phone: a telecommunications device for the 800–877–8339 to contact the above

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individuals during business hours. The DEPARTMENT OF THE TREASURY Abstract: Filers use this form to elect FIRS is available twenty-four hours a to claim the orphan drug credit, which day, seven days a week, to leave a Submission for OMB Review; is 50% of the qualified clinical testing message or question with the above Comment Request expenses paid or incurred with respect to low or unprofitable drugs for rare individuals. You will receive a reply February 16, 2012. during normal business hours. diseases and conditions, as designated The Department of the Treasury will under section 526 of the Federal Food, SUPPLEMENTARY INFORMATION: submit the following information Drug, and Cosmetic Act. Background: On August 11, 2010, U.S. collection request to the Office of Affected Public: Private Sector: Transportation Secretary Ray LaHood Management and Budget (OMB) for Businesses or other for-profits. identified 18 marine corridors, 8 review and clearance in accordance Estimated Total Burden Hours: 348. with the Paperwork Reduction Act of projects, and 6 initiatives for further OMB Number: 1545–2117. 1995, Public Law 104–13, on or after the development as part of ‘‘America’s Type of Review: Extension without date of publication of this notice. Marine Highway Program.’’ In addition, change of a currently approved MarAd made available $7 million for DATES: Comments should be received on collection. which projects competed through a or before March 26, 2012 to be assured Title: TD 9549 (Final)— Notice of Funding Availability. of consideration. Implementation of Form 990. The Marine Highway Program was ADDRESSES: Send comments regarding Abstract: The regulations revise the fully implemented in April 2010 the burden estimate, or any other aspect requirements for requesting a schedule through publication of a Final Rule in of the information collection, including of ruling amounts based on a formula or the Federal Register (http:// suggestions for reducing the burden, to method. edocket.access.gpo.gov/2010/pdf/2010- (1) Office of Information and Regulatory Affected Public: Private Sector: Not- Affairs, Office of Management and 7899.pdf). The Secretary’s designations for-profit institutions. Budget, Attention: Desk Officer for were made pursuant to the Final Rule, Estimated Total Burden Hours: 1. Treasury, New Executive Office as required by the Energy Independence OMB Number: 1545–2209. Building, Room 10235, Washington, DC and Security Act of 2007. Type of Review: Extension without 20503, or email at change of a currently approved Marine Highway Corridors: These all- [email protected] and collection. water routes consist of 11 Corridors, 4 (2) Treasury PRA Clearance Officer, Title: REG–112805–10—Branded Connectors and 3 Crossings that can 1750 Pennsylvania Ave. NW., Suite Prescription Drugs. serve as extensions of the surface 11020, Washington, DC 20220, or on- Abstract: Section 9008 of the Patient transportation system. These corridors line at www.PRAComment.gov. Protection and Affordable Care Act identify routes where water FOR FURTHER INFORMATION CONTACT: (ACA), Public Law 111–148 (124 Stat. transportation presents an opportunity Copies of the submission(s) may be 119 (2010)), as amended by section 1404 to offer relief to landside corridors that obtained by calling (202) 927–5331, of the Health Care and Education suffer from traffic congestion, excessive email at [email protected], or the entire Reconciliation Act of 2010 (HCERA), air emissions or other environmental information collection request may be Public Law 111–152 (124 Stat. 1029 concerns and other challenges. found at www.reginfo.gov. (2010)) imposes an annual fee on Corridors are generally longer, multi- manufacturers and importers of branded Internal Revenue Service (IRS) state routes whereas Connectors prescription drugs that have gross represent shorter routes that serve as OMB Number: 1545–1467. receipts of over $5 million from the feeders to the larger Corridors. Crossings Type of Review: Extension without sales of these drugs to certain are short routes that transit harbors or change of a currently approved government programs (covered entity/ waterways and offer alternatives to collection. covered entities). The temporary much longer or less convenient land Title: Electronic Federal Tax Payment regulations describe how the IRS will routes between points. System (EFTPS). administer the branded prescription Forms: 9779, 9779(SP), 9783, drug fee. Section 51.7T(b) of the An information packet that explains 9783(SP), 9787, 9787(SP), 9789, temporary regulations provides that the more about the America’s Marine 9789(SP). IRS will send each covered entity Highway Program; categories of actions Abstract: Enrollment is vital to the notification of its preliminary fee that will be examined in the implementation of the Electronic calculation by May 15 of the fee year. environmental analysis; describes the Federal Tax Payment System (EFTPS). If a covered entity chooses to dispute corridors that have already been EFTPS is an electronic remittance the IRS’ preliminary fee calculation, the designated; map of the corridors; processing system that the Service will covered entity must follow the projects that have already been use to accept electronically transmitted procedures for submitting an error approved; initiatives that have been federal tax payments. This system is a report that are established in § 51.8T. approved; explanation of scoping and necessary outgrowth of advanced Affected Public: Private Sector: what MarAd is seeking the public information and communication Businesses or other for-profits. assistance with; and procedures that technologies. Estimated Total Burden Hours: 1,800. will used at the public meetings, is Affected Public: Private Sector: OMB Number: 1545–2216. available at www.amhpea.com. Businesses or other for-profits. Type of Review: Extension without Estimated Total Burden Hours: By Order of the Maritime Administrator. change of a currently approved 766,446. Dated: February 15, 2012. collection. OMB Number: 1545–1505. Title: NOT–131190–11, Alabama Julie P. Agarwal, Type of Review: Revision of a Low-Income Housing Credit disaster Secretary, Maritime Administration. currently approved collection. Relief. [FR Doc. 2012–4158 Filed 2–22–12; 8:45 am] Title: Orphan Drug Credit. Abstract: The Internal Revenue BILLING CODE 4910–81–P Form: 8820. Service is suspending certain

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requirements under § 42 of the Internal Request for Comments Type of Review: Revision of a Revenue Code for low-income housing The Department of the Treasury and currently approved collection. credit projects in Alabama to provide its Alcohol and Tobacco Tax and Trade Affected Public: Business or other for- emergency housing relief needed as a Bureau (TTB), as part of their profit. result of the devastation caused by continuing effort to reduce paperwork Estimated Number of Respondents: severe storms, tornadoes, straight-line and respondent burden, invite the 30,000. winds, and flooding in Alabama. general public and other Federal Estimated Total Annual Burden Affected Public: Individuals or agencies to comment on the proposed or Hours: 22,500. Households. continuing information collections Title: Labeling and Advertising Estimated Total Burden Hours: 150. listed below in this notice, as required Requirements under the Federal Alcohol Administration Act. Dawn D. Wolfgang, by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). OMB Control Number: 1513–0087. Treasury PRA Clearance Officer. Comments submitted in response to TTB Recordkeeping Number: 5100/1. [FR Doc. 2012–4121 Filed 2–22–12; 8:45 am] this notice will be included or Abstract: Bottlers and importers of BILLING CODE 4830–01–P summarized in our request for Office of alcohol beverages must adhere to Management and Budget (OMB) numerous performance standards for approval of the relevant information statements made on labels and in DEPARTMENT OF THE TREASURY collection. All comments are part of the advertisements of alcohol beverages. public record and subject to disclosure. These performance standards include Alcohol and Tobacco Tax and Trade minimum mandatory labeling and Bureau Please not do include any confidential or inappropriate material in your advertising statements. Proposed Information Collections; comments. Current Actions: We are submitting Comment Request We invite comments on: (a) Whether this information collection for extension this information collection is necessary purposes only. The information AGENCY: Alcohol and Tobacco Tax and for the proper performance of the collection, estimated number of Trade Bureau; Treasury. agency’s functions, including whether respondents, and estimated total annual burden hours remain unchanged. ACTION: Notice and request for the information has practical utility; (b) Type of Review: Extension of a comments. the accuracy of the agency’s estimate of the information collection’s burden; (c) currently approved collection. Affected Public: Business or other for- SUMMARY: As part of our continuing ways to enhance the quality, utility, and effort to reduce paperwork and clarity of the information collected; (d) profit. respondent burden, and as required by ways to minimize the information Estimated Number of Respondents: the Paperwork Reduction Act of 1995, collection’s burden on respondents, 6,060. Estimated Total Annual Burden we invite comments on the proposed or including through the use of automated Hours: 6,060. continuing information collections collection techniques or other forms of listed below in this notice. information technology; and (e) Title: Beer for Exportation. estimates of capital or start-up costs and OMB Number: 1513–0114. DATES: We must receive your written TTB Form Number: 5130.12. comments on or before April 23, 2012. costs of operation, maintenance, and purchase of services to provide the Abstract: Untaxpaid beer may be ADDRESSES: You may send comments to requested information. removed from a brewery for exportation Mary A. Wood, Alcohol and Tobacco without payment of the excise tax Tax and Trade Bureau, at any of these Information Collections Open for normally due on removal. In order to addresses: Comment ensure that exportation took place as • P.O. Box 14412, Washington, DC Currently, we are seeking comments claimed and that untaxpaid beer does 20044–4412; on the following forms and not reach the domestic market, TTB • 202–453–2686 (facsimile); or recordkeeping requirements: requires certification on TTB F 5130.12. • [email protected] (email). Title: Excise Tax Return. Current Actions: We are submitting this information collection for extension Please send separate comments for OMB Control Number: 1513–0083. purposes only. The information each specific information collection TTB Form Number: 5000.24. collection, estimated number of listed below. You must reference the Abstract: Businesses report their respondents, and estimated total annual information collection’s title, form or Federal excise tax liability on distilled burden hours remain unchanged. recordkeeping requirement number, and spirits, wine, beer, tobacco products, Type of Review: Extension of a OMB number (if any) in your comment. and cigarette papers and tubes on TTB currently approved collection. If you submit your comment via F 5000.24. TTB needs this form to Affected Public: Business or other for- facsimile, send no more than five 8.5 x identify the taxpayer and to determine profit. 11 inch pages in order to ensure the amount and type of taxes due and Estimated Number of Respondents: electronic access to our equipment. paid. Current Actions: We are submitting 60. FOR FURTHER INFORMATION CONTACT: To this information collection as a revision. Estimated Total Annual Burden obtain additional information, copies of Changes in the supporting statement Hours: 5,940. the information collection and its reflect changes to section numbers as Title: Usual and Customary Business instructions, or copies of any comments recodified in the final rule for the Records Relating to Wine. received, contact Mary A. Wood, revision of 27 CFR part 19, Distilled OMB Number: 1513–0115. Alcohol and Tobacco Tax and Trade Spirits Plants. The information TTB Recordkeeping Number: 5120/1. Bureau, P.O. Box 14412, Washington, collection instrument, estimated Abstract: TTB routinely inspects DC 20044–4412; or telephone 202–453– number of respondents, and estimated wineries’ usual and customary business 2265. total annual burden hours remain records to ensure the proper payment of SUPPLEMENTARY INFORMATION: unchanged. wine excise taxes due to the Federal

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Government. TTB believes that Estimated Total Annual Burden Authority issued by the Treasury to regulated individuals cannot succeed in Hours: 3,700. First Sealord Surety, Inc. (NAIC #28519) business without maintaining these Title: Formula and Process for under 31 U.S.C. 9305 to qualify as an records which control the manufacture Alcohol Beverages. acceptable surety on Federal bonds is and sale of wine. OMB Control Number: 1513–0122. terminated effective today. Federal Current Actions: We are submitting TTB Form Number: 5100.51. bond-approving officials should this information collection for extension Abstract: TTB F 5100.51 is used to annotate their reference copies of the purposes only. The information determine the classification of distilled Treasury Department Circular 570 collection, estimated number of spirits, wine, and malt beverages for (‘‘Circular’’), 2011 Revision, to reflect respondents, and estimated total annual labeling and for consumer protection. this change. burden hours remain unchanged. The form describes the person filing, the With respect to any bonds, including Type of Review: Extension of a type of product to be made, and continuous bonds, currently in force currently approved collection. restrictions to the label and/or with above listed Company, bond- Affected Public: Business or other for- manufacturing process. The form will be approving officers should secure new profit. used by TTB to ensure that a product is bonds with acceptable sureties in those Estimated Number of Respondents: made and labeled properly and to audit instances where a significant amount of 4,676. distilled spirits, wine, and malt liability remains outstanding. In Estimated Total Annual Burden beverage operations. Records are kept addition, in no event, should bonds that Hours: 468. indefinitely for this information are continuous in nature be renewed. Title: Bond for Drawback under 26 collection. TTB uses this form in its The Circular may be viewed and U.S.C. 5131. Formulas ON Line (FONL) system. TTB downloaded through the Internet at OMB Control Number: 1513–0116. only predicts a slight reduction in the www.fms.treas.gov/c570. TTB Form Number: 5154.3. burden, as a result of a reduction in the Questions concerning this notice may Abstract: Businesses that use taxpaid time it takes to complete and submit be directed to the U.S. Department of alcohol to manufacture nonbeverage this form using FONL; however, as the the Treasury, Financial Management products may file a claim for drawback popularity of the system increases, TTB Service, Financial Accounting and (refund or remittance). Claims may be expects an additional decrease in the Services Division, Surety Bond Branch, filed monthly or quarterly. Monthly burden hours. 3700 East-West Highway, Room 6F01, claimants must file a bond on TTB F Current Actions: We are submitting Hyattsville, MD 20782. 5154.3 to protect the Government’s this information collection as a revision, Dated: February 10, 2012. interest. as a result of the change in the burden. Laura Carrico, Current Actions: We are submitting Type of Review: Revision of a this information collection for extension Director, Financial Accounting and Services currently approved collection. Division, Financial Management Service. purposes only. The information Affected Public: Business or other for- collection, estimated number of [FR Doc. 2012–4006 Filed 2–22–12; 8:45 am] profit. respondents, and estimated total annual BILLING CODE 4810–35–M Estimated Number of Respondents: burden hours remain unchanged. 1,000. Type of Review: Extension of a Estimated Total Annual Burden DEPARTMENT OF THE TREASURY currently approved collection. Hours: 7,640. Affected Public: Business or other for- Office of Foreign Assets Control profit. Dated: February 17, 2012. Estimated Number of Respondents: Angela Jeffries, Designation of One Entity Pursuant to 52. Deputy Director, Regulations and Rulings Executive Order 13224 of September Estimated Total Annual Burden Division. 23, 2001, ‘‘Blocking Property and Hours: 10. [FR Doc. 2012–4242 Filed 2–22–12; 8:45 am] Prohibiting Transactions With Persons Title: Labeling of Major Food BILLING CODE 4810–31–P Who Commit, Threaten To Commit, or Allergens. Support Terrorism’’ OMB Control Number: 1513–0121. TTB Recordkeeping/Form Number: DEPARTMENT OF THE TREASURY AGENCY: Office of Foreign Assets None. Control, Treasury. Abstract: This collection of Fiscal Service ACTION: Notice. information requires labeling of major SUMMARY: food allergens used in the production of Surety Companies Acceptable on The Treasury Department’s alcohol beverages and corresponds to Federal Bonds: Termination; First Office of Foreign Assets Control the amendments to the Food, Drug and Sealord Surety, Inc. (‘‘OFAC’’) is publishing the name of one entity whose property and interests in Cosmetics Act (FD&C Act) in Title II of AGENCY: Financial Management Service, Public Law 108–282, 118 Stat. 905. property are blocked pursuant to Fiscal Service, Department of the Executive Order 13224 of September 23, Current Actions: We are submitting Treasury. this information collection for extension 2001, ‘‘Blocking Property and ACTION: purposes only. The information Notice. Prohibiting Transactions With Persons collection, estimated number of Who Commit, Threaten To Commit, or SUMMARY: This is Supplement No. 11 to Support Terrorism.’’ respondents, and estimated total annual the Treasury Department Circular 570; DATES: The designation by the Director burden hours remain unchanged. 2011 Revision, published July 1, 2011, of OFAC of the entity in this notice, Type of Review: Extension of a at 76 FR 38892. currently approved collection. pursuant to Executive Order 13224, is FOR FURTHER INFORMATION CONTACT: Affected Public: Business or other for- effective on February 16, 2012. Surety Bond Branch at (202) 874–6850. profit. FOR FURTHER INFORMATION CONTACT: Estimated Number of Respondents: SUPPLEMENTARY INFORMATION: Notice is Assistant Director, Compliance 5,000. hereby given that the Certificate of Outreach & Implementation, Office of

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Foreign Assets Control, Department of State, in consultation with the Secretary property are blocked pursuant to the Treasury, Washington, DC 20220, of the Treasury, the Secretary of the Executive Order 13553 of September 28, tel.: 202/622–2490. Department of Homeland Security and 2010, ‘‘Blocking Property of Certain SUPPLEMENTARY INFORMATION: the Attorney General, deems Persons With Respect to Serious Human appropriate in the exercise of his Rights Abuses by the Government of Electronic and Facsimile Availability discretion, persons determined by the Iran and Taking Certain Other Actions.’’ This document and additional Director of OFAC, in consultation with DATES: The designation by the Acting information concerning OFAC are the Departments of State, Homeland Director of OFAC of the entity identified available from OFAC’s Web site Security and Justice, to assist in, in this notice, pursuant to Executive (www.treas.gov/ofac) or via facsimile sponsor, or provide financial, material, Order 13553 is effective February 16, through a 24-hour fax-on-demand or technological support for, or financial 2012. service, tel.: 202/622–0077. or other services to or in support of, FOR FURTHER INFORMATION CONTACT: such acts of terrorism or those persons Background Assistant Director, Sanctions listed in the Annex to the Order or Compliance and Evaluation, Office of On September 23, 2001, the President determined to be subject to the Order or Foreign Assets Control, Department of issued Executive Order 13224 (the to be otherwise associated with those the Treasury, Washington, DC 20220, ‘‘Order’’) pursuant to the International persons listed in the Annex to the Order Tel.: 202/622–2490. Emergency Economic Powers Act, 50 or those persons determined to be U.S.C. 1701–1706, and the United subject to subsection 1(b), 1(c), or 1(d)(i) SUPPLEMENTARY INFORMATION: Nations Participation Act of 1945, 22 of the Order. Electronic and Facsimile Availability U.S.C. 287c. In the Order, the President On February 16, 2012, the Director of declared a national emergency to OFAC, in consultation with the This document and additional address grave acts of terrorism and Departments of State, Homeland information concerning OFAC are threats of terrorism committed by Security, Justice and other relevant available from OFAC’s Web site (www. foreign terrorists, including the agencies, designated, pursuant to one or treas.gov/ofac) or via facsimile through September 11, 2001 terrorist attacks in more of the criteria set forth in a 24-hour fax-on-demand service, Tel.: New York, Pennsylvania, and at the subsections 1(b), 1(c) or 1(d) of the 202/622–0077. Pentagon. The Order imposes economic Order, one entity whose property and Background sanctions on persons who have interests in property are blocked committed, pose a significant risk of On September 28, 2010, the President pursuant to Executive Order 13224. issued Executive Order 13553, committing, or support acts of terrorism. The listing for the entity on OFAC’s ‘‘Blocking Property of Certain Persons The President identified in the Annex to list of Specially Designated Nationals With Respect to Serious Human Rights the Order, as amended by Executive and Blocked Persons appears as follows: Order 13268 of July 2, 2002, 13 Abuses by the Government of Iran and individuals and 16 entities as subject to Entity Taking Certain Other Actions’’ (the the economic sanctions. The Order was IRANIAN MINISTRY OF ‘‘Order’’) pursuant to, inter alia, the further amended by Executive Order INTELLIGENCE AND SECURITY (a.k.a. International Emergency Economic 13284 of January 23, 2003, to reflect the VEZARAT–E ETTELA’AT VA Powers Act (50 U.S.C. 1701–06) creation of the Department of Homeland AMNIAT–E KESHVAR; a.k.a. ‘‘MOIS’’; (‘‘IEEPA’’) and the Comprehensive Iran Security. a.k.a. ‘‘VEVAK’’), bounded roughly by Sanctions, Accountability, and Section 1 of the Order blocks, with Sanati Street on the west, 30th Street on Divestment Act of 2010 (Public Law certain exceptions, all property and the south, and Iraqi Street on the east, 111–195). In the Order, the President interests in property that are in or Tehran, Iran; Ministry of Intelligence, took additional steps with respect to the hereafter come within the United States Second Negarestan Street, Pasdaran national emergency declared in or the possession or control of United Avenue, Tehran, Iran [SDGT]. Executive Order 12957 of March 15, States persons, of: (1) Foreign persons 1995. listed in the Annex to the Order; (2) Dated: February 16, 2012. Section 1 of the Order blocks, with foreign persons determined by the Barbara C. Hammerle, certain exceptions, all property and Secretary of State, in consultation with Acting Director, Office of Foreign Assets interests in property that are in the the Secretary of the Treasury, the Control. United States, that come within the Secretary of the Department of [FR Doc. 2012–4124 Filed 2–22–12; 8:45 am] United States, or that are or come within Homeland Security and the Attorney BILLING CODE 4810–AL–P the possession or control of any United General, to have committed, or to pose States person, of persons listed in the a significant risk of committing, acts of Annex to the Order and of persons terrorism that threaten the security of DEPARTMENT OF THE TREASURY determined by the Secretary of the U.S. nationals or the national security, Treasury, in consultation with or at the Office of Foreign Assets Control foreign policy, or economy of the United recommendation of the Secretary of States; (3) persons determined by the Designation of One Entity Pursuant to State, to meet any of the criteria set forth Director of OFAC, in consultation with Executive Order 13553 in the Order. the Departments of State, Homeland The Annex to the Order listed eight Security and Justice, to be owned or SUB-AGENCY: Office of Foreign Assets individuals whose property and controlled by, or to act for or on behalf Control. interests in property are blocked of those persons listed in the Annex to ACTION: Notice. pursuant to the Order. the Order or those persons determined On February 16, 2012, the Acting to be subject to subsection 1(b), 1(c), or SUMMARY: The Treasury Department’s Director of OFAC, in consultation with 1(d)(i) of the Order; and (4) except as Office of Foreign Assets Control or at the recommendation of the provided in section 5 of the Order and (‘‘OFAC’’) is publishing the name of one Secretary of State, designated, pursuant after such consultation, if any, with entity newly-designated as an entity to one or more of the criteria set forth foreign authorities as the Secretary of whose property and interests in in subparagraphs (a)(ii)(A) through

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(a)(ii)(C) of Section 1 of the Order, one notice, pursuant to Executive Order repression; (2) to be a senior official of entity whose property and interests in 13572, is effective on February 16, 2012. an entity whose property and interests property are blocked, pursuant to the FOR FURTHER INFORMATION CONTACT: in property are blocked pursuant to this Order. Assistant Director, Compliance Order; (3) to have materially assisted, The listing for this entity is as follows: Outreach & Implementation, Office of sponsored or provided financial, • IRANIAN MINISTRY OF Foreign Assets Control, Department of material, or technological support for, or INTELLIGENCE AND SECURITY (a.k.a. the Treasury, 1500 Pennsylvania goods or services in support of, the VEZARAT–E ETTELA’AT VA AMNIAT–E Avenue NW., (Treasury Annex), activities in subsection (b)(i) of Section KESHVAR; a.k.a. ‘‘MOIS’’; a.k.a. ‘‘VEVAK’’), Washington, DC 20220, Tel.: 202/622– 1 of the Order or any person whose bounded roughly by Sanati Street on the 2490. property and interests in property are west, 30th Street on the south, and Iraqi SUPPLEMENTARY INFORMATION: blocked pursuant to Executive Order Street on the east, Tehran, Iran; Ministry of 13338, Executive Order 13460, or this Intelligence, Second Negarestan Street, Electronic and Facsimile Availability Order; or (4) to be owned or controlled Pasdaran Avenue, Tehran, Iran [SDGT] by, or to have acted or purported to act [IRAN–HR] [SYRIA–HR] This document and additional information concerning OFAC are for or on behalf of, directly or indirectly, Dated: February 16, 2012. available from OFAC’s Web site any person whose property and interests Barbara C. Hammerle, (www.treas.gov/ofac) or via facsimile in property are blocked pursuant to Acting Director, Office of Foreign Assets through a 24-hour fax-on-demand Executive Order 13460 or this Order. Control. service, Tel.: 202/622–0077. On February 16, 2012, the Director of [FR Doc. 2012–4214 Filed 2–22–12; 8:45 am] OFAC, in consultation with the Background BILLING CODE 4810–AL–P Department of State, designated, On April 29, 2011, the President pursuant to one or more of the criteria issued Executive Order 13572, set forth in subsection 1(b) of the Order, DEPARTMENT OF THE TREASURY ‘‘Blocking Property of Certain Persons one entity whose property and interests with Respect to Human Rights Abuses in property are blocked pursuant to Office of Foreign Assets Control in Syria,’’ (the ‘‘Order’’) pursuant to, Executive Order 13572. inter alia, the International Emergency The listing for the entity on OFAC’s Designation of One Entity Pursuant to Economic Powers Act (50 U.S.C. 1701– Executive Order 13572 of April 29, list of Specially Designated Nationals 06). In the Order, the President and Blocked Persons appears as follows: 2011, ‘‘Blocking Property of Certain expanded the scope of the national Persons With Respect to Human emergency declared in Executive Order Entity Rights Abuses in Syria’’ 13338 of May 11, 2004. IRANIAN MINISTRY OF Section 1 of the Order blocks, with AGENCY: Office of Foreign Assets INTELLIGENCE AND SECURITY (a.k.a. certain exceptions, all property and Control, Treasury. VEZARAT–E ETTELA’AT VA interests in property that are in the AMNIAT–E KESHVAR; a.k.a. ‘‘MOIS’’; ACTION: Notice. United States, that come within the a.k.a. ‘‘VEVAK’’), bounded roughly by United States, or that are or come within Sanati Street on the west, 30th Street on SUMMARY: The Treasury Department’s the possession or control of any United Office of Foreign Assets Control the south, and Iraqi Street on the east, States person, of persons listed in the Tehran, Iran; Ministry of Intelligence, (‘‘OFAC’’) is publishing the name of Annex to the Order and of persons number of one entity whose property Second Negarestan Street, Pasdaran determined by the Secretary of the Avenue, Tehran, Iran [SYRIA]. and interests in property are blocked Treasury, in consultation with the pursuant to Executive Order 13572 of Secretary of State: (1) To be responsible Dated: February 16, 2012. April 29, 2011, ‘‘Blocking Property of for or complicit in, or responsible for Barbara C. Hammerle, Certain Persons with Respect to Human ordering, controlling, or otherwise Acting Director, Office of Foreign Assets Rights Abuses in Syria.’’ directing, or to have participated in, the Control. DATES: The designation by the Director commission of human rights abuses in [FR Doc. 2012–4120 Filed 2–22–12; 8:45 am] of OFAC of the entity identified in this Syria, including those related to BILLING CODE 4810–AL–P

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Part II

Department of the Interior

Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Endangered Status and Designations of Critical Habitat for Spikedace and Loach Minnow; Final Rule

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DEPARTMENT OF THE INTERIOR agreement. With the change in status for December 27, 2010. On October 4, 2011 the species, the special rules for each (76 FR 61330), we published a revised Fish and Wildlife Service species will be removed from the Code proposed rule, announced the of Federal Regulations. In total, availability of a draft economic analysis 50 CFR Part 17 approximately 1,013 kilometers (630 and environmental assessment of the [Docket No. FWS–R2––2010–0072; miles) are designated as critical habitat proposed designations, and announced 4500030114] for spikedace and 983 kilometers (610 the scheduling of a public information miles) are designated as critical habitat session and public hearing. Our October RIN 1018–AX17 for loach minnow in Apache, Cochise, 4, 2011, notice also reopened the Gila, Graham, Greenlee, Pinal, and comment period on the revised Endangered and Threatened Wildlife Yavapai Counties, Arizona, and Catron, proposed rule and uplisting for an and Plants; Endangered Status and Grant, and Hidalgo Counties in New additional 30 days, until November 3, Designations of Critical Habitat for Mexico. Of this area, approximately 853 2011. Spikedace and Loach Minnow kilometers (529 miles) are designated for Spikedace AGENCY: Fish and Wildlife Service, both species, with an additional 162 Interior. kilometers (100 miles) for spikedace The spikedace is a member of the minnow family Cyprinidae, and is the ACTION: Final rule. only and an additional 130 kilometers (81 miles) for loach minnow only. We only species in the genus Meda. The SUMMARY: We, the U.S. Fish and have excluded from this designation of spikedace was first collected from the Wildlife Service (Service), change the critical habitat: portions of the upper San Pedro River in 1851. The spikedace status of spikedace (Meda fulgida) and San Pedro River in Arizona based on is a small, slim fish less than 75 loach minnow (Tiaroga cobitis) from potential impacts to national security at millimeters (mm) (3 inches (in)) in threatened to endangered under the Fort Huachuca; Tribal lands of the length (Sublette et al. 1990, p. 136). Endangered Species Act of 1973, as White Mountain Apache Tribe, San Spikedace have olive-gray to brownish amended (Act). With this rule we are Carlos Apache Tribe, and the Yavapai- skin, with silvery sides and vertically also revising the designated critical Apache Nation in Arizona; and private elongated black specks. Spikedace have habitats for both species. These changes lands owned by Freeport-McMoRan in spines in the dorsal fin (Minckley 1973, fulfill our obligations under a settlement Arizona and New Mexico. pp. 82, 112, 115). agreement. Spikedace are found in moderate to Background large perennial streams, where they DATES: This rule becomes effective on inhabit shallow riffles (those shallow March 26, 2012. It is our intent to discuss in this final rule only those topics directly relevant portions of the stream with rougher, ADDRESSES: This final rule and the to the development and designations of choppy water) with sand, gravel, and associated final economic analysis and critical habitat for the spikedace and the rubble substrates (Barber and Minckley environmental assessment are available loach minnow under the Act (16 U.S.C. 1966, p. 31; Propst et al. 1986, p. 12; on the Internet at http:// 1531 et seq.). For more information on Rinne and Kroeger 1988, p. 1; Rinne www.regulations.gov. Comments and the biology and ecology of the spikedace 1991, pp. 8–10). Specific habitat for this materials received, as well as supporting and the loach minnow, refer to the final species consists of shear zones where documentation used in preparing this listing rule published in the Federal rapid flow borders slower flow; areas of final rule, are available for public Register on July 1, 1986, for spikedace sheet flow at the upper ends of inspection, by appointment, during (51 FR 23769), and October 28, 1986, for midchannel sand or gravel bars; and normal business hours, at the U.S. Fish loach minnow (51 FR 39468); the eddies at downstream riffle edges and Wildlife Service, Arizona Ecological previous critical habitat designations (Rinne 1991, p. 11; Rinne and Kroeger Services Office, 2321 W. Royal Palm (72 FR 13356, March 21, 2007); and our 1988, pp. 1, 4). Recurrent flooding and Road, Suite 103, Phoenix, AZ 85021; 1991 final recovery plans, which are a natural flow regime are very important telephone 602–242–0210; facsimile available from the Arizona Ecological in maintaining the habitat of spikedace 602–242–2513. Services Office (see ADDRESSES section). and in helping maintain a competitive FOR FURTHER INFORMATION CONTACT: For information on spikedace and loach edge over invading nonnative aquatic Steve Spangle, Field Supervisor, U.S. minnow critical habitat, refer to the species (Propst et al. 1986, pp. 76–81; Fish and Wildlife Service, Arizona proposed rule to designate critical Minckley and Meffe 1987, pp. 97, 103– Ecological Services Office, 2321 W. habitat for the two species published in 104). Royal Palm Road, Suite 103, Phoenix, the Federal Register on October 28, The spikedace was once common AZ 85021; telephone 602–242–0210; 2010 (75 FR 66482). A notice of throughout much of the Gila River facsimile 602–242–2513. If you use a availability regarding changes to the basin, including the mainstem Gila telecommunications device for the deaf proposed rule and information on the River upstream of Phoenix, and the (TDD), call the Federal Information associated draft economic analysis and Verde, Agua Fria, Salt, San Pedro, and Relay Service (FIRS) at 800–877–8339. draft environmental assessment for the San Francisco subbasins. Habitat SUPPLEMENTARY INFORMATION: proposed rule to designate revised destruction and competition and critical habitat was published in the predation by nonnative aquatic species Executive Summary Federal Register on October 4, 2011 (76 reduced its range and abundance (Miller In this final rule, we are changing the FR 61330). 1961, pp. 365, 377, 397–398; Lachner et status of spikedace and loach minnow al. 1970, p. 22; Ono et al. 1983, p. 90; from threatened to endangered under Previous Federal Actions Moyle 1986, pp. 28–34; Moyle et al. the Act. We also are revising our Previous Federal actions prior to 1986, pp. 416–423; Propst et al. 1986, designations of critical habitat for both October 28, 2010, are outlined in our pp. 82–84). Spikedace are now species. We are under undertaking these proposed rule (75 FR 66482), which was restricted to portions of the upper Gila actions pursuant to a settlement published on that date. Publication of River (Grant, Catron, and Hidalgo agreement and publication of this action the proposed rule opened a 60-day Counties, New Mexico); Aravaipa Creek will fulfill our obligations under that comment period which closed on (Graham and Pinal Counties, Arizona);

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Eagle Creek (Graham and Greenlee inadequate to detect a sparse Mexico) (Miller 1998, pp. 4–5; ASU Counties, Arizona); and the Verde River population. 2002; Carter 2005, pp. 1–5; Carter, (Yavapai County, Arizona) (Marsh et al. Population estimates have not been 2008b, pers. comm.; Clarkson et al. 1990, pp. 107–108, 111; Brouder, 2002, developed as a result of the difficulty in 2008, pp. 3–4; Robinson 2009c, p. 3); pers. comm.; Stefferud and Reinthal detecting the species, the sporadic • Aravaipa Creek and its tributaries, 2005, pp. 16–21; Paroz et al. 2006, pp. nature of most surveys, and the Turkey and Deer Creeks (Graham and 62–67; Propst 2007, pp. 7–9, 11–14; difference in surveying techniques that Pinal Counties, Arizona) (Stefferud and Reinthal 2011, pp. 1–2). have been applied over time. Based on Reinthal 2005, pp. 16–21); In 2007, spikedace were translocated the available maps and survey • Eagle Creek (Graham and Greenlee into Hot Springs and Redfield Canyons, information, we estimate the present Counties, Arizona), (Knowles 1994, pp. in Cochise County, Arizona, and these range for spikedace to be approximately 1–2, 5; Bagley and Marsh 1997, pp. 1– streams were subsequently augmented 10 percent or less of its historical range, 2; Marsh et al. 2003, pp. 666–668; Carter (Robinson 2008a, pp. 2, 6; Robinson, and the status of the species within et al. 2007, p. 3; Bahm and Robinson 2008b, pers. comm.; Orabutt, 2009 pers. occupied areas ranges from common to 2009a, p. 1); comm.; Robinson 2009a, pp. 2, 5–8). very rare. Data indicate that the • The North Fork East Fork Black (We use the term ‘‘translocate’’ to population in New Mexico has declined River (Apache and Greenlee Counties, describe stocking fish into an area in recent years (Paroz et al. 2006, p. 56). Arizona) (Leon 1989, pp. 1–2; Lopez, where suitable habitat exists, but for Historical and current records for 2000, pers. comm.; Gurtin, 2004, pers. which there are no documented spikedace are summarized in three comm.; Carter 2007b, p. 2; Robinson et collections.) Both Hot Springs and databases (ASU 2002, AGFD 2004, al. 2009b, p. 4); and Redfield canyons are tributaries to the NMDGF 2008), which are referenced • Possibly the White River and its San Pedro River. Spikedace were also throughout this document. tributaries, the East and North Fork translocated into Fossil Creek, a White River (Apache, Gila, and Navajo tributary to the Verde River in Gila Loach Minnow Counties, Arizona). County, Arizona, in 2007, and were The loach minnow is a member of the subsequently augmented in 2008 and minnow family Cyprinidae. The loach As described for spikedace above, 2011 (Carter 2007b, p. 1; Carter 2008a, minnow was first collected in 1851 from population estimates for loach minnow p. 1; Robinson 2009b, p. 9; Boyarski et the San Pedro River in Arizona and was have not been developed as a result of al. 2010, p. 3, Robinson 2011a, p. 1). In described by those specimens in 1856 the difficulty in detecting the species, 2008, spikedace were translocated into by Girard (pp. 191–192). The loach the sporadic nature of most surveys, and Bonita Creek, a tributary to the Gila minnow is a small, slender fish less the difference in surveying techniques River in Graham County, Arizona than 80 mm (3 in) in length. It is olive- that have been applied over time. (Blasius, 2008, pers. comm.; Orabutt, colored overall, with black mottling or However, based on the available maps 2009,, pers. comm.; Robinson et al. splotches. Breeding males have vivid and survey information, we estimate the 2009a, p. 209; Blasius and Conn 2011, red to red-orange markings on the bases present range for loach minnow to be p. 3), and were repatriated to the upper of fins and adjacent body, on the mouth approximately 15 to 20 percent or less San Francisco River in Catron County, and lower head, and often on the of its historical range, and the status of New Mexico (Propst, 2010, pers. abdomen (Minckley 1973, p. 134; the species within occupied areas comm.). (We use the term ‘‘repatriate’’ Sublette et al. 1990, p. 186). ranges from common to very rare. Data to describe stocking fish into an area Loach minnow are found in small to indicate that the population in New where we have historical records of large perennial streams and use shallow, Mexico has declined in recent years prior presence.) Augmentations with turbulent riffles with primarily cobble (Paroz et al. 2006, p. 56). Historical and additional fish will occur for the next substrate and swift currents (Minckley current records for spikedace are several years at all sites, if adequate 1973, p. 134; Propst et al. 1988, pp. 36– summarized in three databases (ASU numbers of fish are available. 43; Rinne 1989, pp. 113–115; Propst and 2002, AGFD 2004, NMDGF 2008), Monitoring at each of these sites is Bestgen 1991, pp. 29, 32–33). The loach which are referenced throughout this ongoing to determine if populations minnow uses the spaces between, and document. ultimately become self-sustaining. in the lee (sheltered) side of, rocks for Summary of Factors Affecting the The species is now common only in resting and spawning. It is rare or absent Species Aravaipa Creek in Arizona (AGFD 1994; from habitats where fine sediments fill Arizona State University (ASU) 2002; these interstitial spaces (Propst and Under the Act and our implementing Reinthal 2011, pp. 1–2) and one section Bestgen 1991, p. 34). regulations, a species may warrant of the Gila River south of Cliff, New Loach minnow are now restricted to: listing if it is endangered or threatened Mexico (NMDGF 2008; Propst et al. • Portions of the Gila River and its throughout all or a significant portion of 2009, pp. 14–17). The Verde River is tributaries, the West, Middle, and East its range. Both spikedace and loach presumed occupied; however, the last Fork Gila River (Grant, Catron, and minnow currently exist in a small captured fish from this river was from Hidalgo Counties, New Mexico) (Paroz portion of their historical range (10 a 1999 survey (Brouder 2002, p. 1; and Propst 2007, p. 16; Propst 2007, pp. percent, or less, for spikedace, and 15 to AGFD 2004). Spikedace from the Eagle 7–8, 10–11, 13–14); 20 percent for loach minnow), and the Creek population have not been seen for • The San Francisco and Tularosa threats continue throughout its range. over a decade (Marsh 1996, p. 2), rivers and their tributaries, Negrito and Accordingly, our assessment and although they are still thought to exist Whitewater Creeks (Catron County, New determination applies to each species in numbers too low for the sampling Mexico) (Propst et al. 1988, p. 15; ASU throughout its entire range. Section 4 of efforts to detect (Carter et al. 2007, p. 3; 2002; Paroz and Propst 2007, p. 16; the Act (16 U.S.C. 1533), and see Minckley and Marsh 2009). The Propst 2007, pp. 4–5); implementing regulations (50 CFR part Middle Fork Gila River population is • The Blue River and its tributaries, 424), set forth the procedures for adding thought to be very small and has not Dry Blue, Campbell Blue, Pace, and species to the Federal Lists of been seen since 1991 (Jakle 1992, p. 6), Frieborn Creeks (Greenlee County, Endangered and Threatened Wildlife but sampling is localized and Arizona, and Catron County, New and Plants.

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Under section 4(a)(1) of the Act, a streams, large reservoirs, or dewatered Arizona—New Mexico border (Arizona species may be determined to be channels, thus eliminating suitable Department of Water Resources 2011a, endangered or threatened based on any spikedace and loach minnow habitat in p. 1). of the following five factors: (1) The impacted areas (Propst et al. 1986, p. 3; Additional withdrawals of water from present or threatened destruction, Tellman et al. 1997, pp. 37, 50, 63–64, the Gila and San Francisco rivers may modification, or curtailment of its 66, 103). These habitat changes, together occur in the future. Implementation of habitat or range; (2) overutilization for with the introduction of nonnative fish Title II of the Arizona Water Settlements commercial, recreational, scientific, or species (see factors C and E), have Act (AWSA) (Pub. L. 108–451) would educational purposes; (3) disease or resulted in the extirpation of spikedace facilitate the exchange of Central predation; (4) the inadequacy of existing and loach minnow throughout an Arizona Project water within and regulatory mechanisms; or (5) other estimated 80 to 90 percent of their between southwestern river basins in natural or manmade factors affecting its historical ranges. Arizona and New Mexico, and may continued existence. In making this Spikedace and loach minnow are result in the construction of new water finding, information pertaining to stream-dwelling fish, and are associated development projects. For example, spikedace and loach minnow, in only with flowing water. Spikedace are Section 212 of the AWSA pertains to the relation to the five factors provided in found in moderate to large perennial New Mexico Unit of the Central Arizona section 4(a)(1) of the Act, is discussed streams, and occur where the stream has Project. below. flowing, rougher, choppy water (Barber The AWSA provides for New Mexico In considering what factors might and Minckley 1966, p. 31; Propst et al. water users to deplete 140,000 acre-feet constitute threats to a species, we must 1986, p. 12; Rinne and Kroeger 1988, p. of additional water from the Gila Basin look beyond the exposure of the species 1; Rinne 1991, pp. 8–10). Loach minnow in any ten-year period. The settlement to a factor to evaluate whether the occur in shallow, turbulent riffles where also provides the ability to divert that species may respond to the factor in a there are swift currents (Minckley 1973, water without complaint from way that causes actual impacts to the p. 134; Propst et al. 1988, pp. 36–43; downstream pre-1968 water rights in species. If there is exposure to a factor Rinne 1989, pp. 113–115; Propst and Arizona. New Mexico will receive $66 and the species responds negatively, the Bestgen 1991, pp. 29, 32–33). Water million to $128 million in non- factor may be a threat and we attempt withdrawals that either dewater reimbursable federal funding. The to determine how significant a threat it channels or reduce flows to low levels Interstate Stream Commission (ISC) is. The threat is significant if it drives, or pools within an active channel funds may be used to cover costs of an or contributes to, the risk of extinction therefore eliminate the habitat used by actual water supply project, planning, of the species such that the species the two species. environmental mitigation, or restoration warrants listing as endangered or Many streams currently or formerly activities associated with or necessary threatened as those terms are defined in occupied by spikedace and loach for the project, and may be used on one the Act. minnow have been affected by water or more of 21 alternative projects Throughout the document, we discuss withdrawals. The Gila River ranging from Gila National Forest San areas in which spikedace or loach downstream of the town of Cliff, New Francisco River Diversion/Ditch minnow have been reintroduced, Mexico, flows through a broad valley improvements to a regional water translocated, or augmented. For where irrigated agriculture and livestock supply project (the Deming Diversion purposes of this document, we consider grazing are the predominant uses. Project). At this time, it is not known the species to have been reintroduced Human settlement has increased since how the funds will be spent, or which when they have been placed back into 1988 (Propst et al. 2008 (pp. 1237– potential alternative(s) may be chosen. While multiple potential project an area in which they were formerly 1238). Agricultural practices have led to proposals have been accepted by the present, but no longer are. We consider dewatering of the river in the Cliff-Gila New Mexico Office of the State Engineer the fish to have been translocated when valley at times during the dry season (NMOSE) (NMOSE 2011a, p. 1), they are placed into a location for which (Soles 2003, p. 71). For those portions of the Gila River downstream of the implementation of the AWSA is still in we have no previous records of Arizona-New Mexico border, the planning stages on these streams. occurrence. Augmentation occurs when agricultural diversions and groundwater The AWSA mandates that the ISC make we add additional individuals to a pumping have caused declines in the the final determination of contracts for former reintroduction or translocation water table, and surface flows in the water and allocation of funding and project, in an attempt to establish a central portion of the river basin are provide notice to the Secretary of the stable population. diverted for agriculture (Leopold 1997, Interior by December 31, 2014. New A. The Present or Threatened pp. 63–64; Tellman et al. 1997, pp. 101– Mexico ISC must make any final Destruction, Modification, or 104; Arizona Department of Water determination during an open, public Curtailment of Habitat or Range Resources 2000, pp. 16–17). meeting, and only after consultation The San Francisco River has with the Gila San Francisco Water Water Withdrawals undergone sedimentation, riparian Commission, the citizens of Southwest Water resources are limited in the habitat degradation, and extensive water New Mexico, and other affected Southwestern United States and diversion and at present has an interests. Due to the timeline associated diversions and withdrawals have led to undependable water supply throughout with this project, as well as the the conversion of portions of habitat to portions of its length. The San Francisco uncertainties in how funding will be intermittent streams or reservoirs River is seasonally dry in the Alma spent, and which potential alternative unsuitable for spikedace or loach Valley, and two diversion structures or alternatives will be chosen, the minnow. Growing water demands fragment habitat in the upper Alma Service is unable to determine the reduce southern Arizona perennial Valley and at Pleasanton (NMDGF 2006, outcome of this process at this time. surface water and threaten aquatic p. 302). The San Francisco River in However, should water be diverted from species. Historically, water withdrawals Arizona was classified as impaired due the Gila or San Francisco rivers, flows led to the conversion of large portions to excessive sediment from its would be diminished and direct and of flowing streams into intermittent headwaters downstream to the indirect losses and degradation of

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habitat for aquatic and riparian species the 2000 water usage. The middle and of native fishes including loach would result. The San Francisco River lower Verde River has limited or no minnow. Reductions of available water is currently occupied by loach minnow, flow during portions of the year due to within this reach could preclude its use and is the site of a 2008 reintroduction agricultural diversion and upstream for recovery purposes. This area is for spikedace. The Gila River is a impoundments, and has several currently considered occupied by stronghold for both species, currently impoundments in its middle reaches, spikedace that are considered supporting the largest remaining which could expand the area of genetically (Tibbets 1993, pp. 25–29) populations of each. For these reasons, impacted spikedace and loach minnow and morphologically (Anderson and impacts to either river is of particular habitat. The Little Chino basin within Hendrickson 1994, pp. 148, 150–154) concern for the persistence of these the Verde River watershed has already distinct from all other spikedace species. experienced significant groundwater populations. Groundwater withdrawal in Eagle declines that have reduced flow in Del Portions of the San Pedro River are Creek, primarily for water supply for a Rio Springs (Arizona Department of now classified as formerly perennial, large open-pit copper mine at Morenci, Water Resources 2000, pp. 1–1, 1–2). including areas from which spikedace Arizona dries portions of the stream Blasch et al. (2006, p. 2) suggests that and loach minnow are now extirpated (Sublette et al. 1990, p. 19; Service groundwater storage in the Verde River (The Nature Conservancy 2006). Water 2005; Propst et al. 1986, p. 7). Mining watershed has already declined due to withdrawals are also a concern for the is the largest industrial water user in groundwater pumping and reductions in San Pedro River. The Cananea Mine in southeastern Arizona. The Morenci natural channel recharge resulting from Sonora, Mexico, owns the land mine on Eagle Creek is North America’s streamflow diversions. surrounding the headwaters of the San largest producer of copper, covering Also impacting water in the Verde Pedro. There is disagreement on the approximately 24,281 hectares (ha) River, the City of Prescott, Arizona, exact amount of water withdrawn by the (60,000 acres (ac)). Water for the mine experienced a 22 percent increase in mine, Mexicana de Cananea, which is is imported from the Black River, population between 2000 and 2005 one of the largest open-pit copper mines diverted from Eagle Creek as surface (U.S. Census Bureau 2010, p. 1), in the world. However, there is flows, or withdrawn from the Upper averaging around 4 percent growth per agreement that it is the largest water Eagle Creek Well Field (Arizona year (City of Prescott 2010, p. 1). In user in the basin (Harris et al. 2001; Department of Water Resources 2009, addition, the towns of Prescott Valley Varady et al. 2000, p. 232). p. 1). and Chino Valley experienced growth Another primary groundwater user in Aravaipa Creek is relatively protected rates of 66 and 67 percent, respectively the San Pedro watershed is Fort from further instream habitat loss due to (Arizona Department of Commerce Huachuca. Fort Huachuca is a U.S. water withdrawals because it is partially 2009a, p. 1; 2009b, p. 1). This growth is Army installation located near Sierra within a Bureau of Land Management facilitated by groundwater pumping in Vista, Arizona. Initially established in (BLM) Wilderness area and partially the Verde River basin. In 2004, the cities 1877 as a camp for the military, the within a Nature Conservancy preserve. of Prescott and Prescott Valley water rights of the Fort are predated However, Aravaipa Creek is affected by purchased a ranch in the Big Chino only by those of local Indian tribes upstream uses in the watershed, basin in the headwaters of the Verde (Varady et al. 2000, p. 230). Fort primarily groundwater pumping for River, with the intent of drilling new Huachuca has pursued a rigorous water irrigation. Irrigation can reduce creek wells to supply up to approximately use reduction plan, working over the flows, as crop irrigation uses large 4,933,927 cubic meters (4,000 acre-feet past decade to reduce groundwater amounts of water, especially during the (AF)) of groundwater per year. If such consumption in the Sierra Vista summer months when the creek flows drilling occurs, it could have serious Subwatershed. Their efforts have are already at their lowest. Increased adverse effects on the mainstem and focused primarily on reductions in groundwater pumping from wells is tributaries of the Verde River. groundwater demand both on-post and known to be linked to reduced creek Scientific studies have shown a link off-post and increased artificial and flows (JE Fuller 2000, pp. 4–8). between the Big Chino aquifer and enhanced recharge of the groundwater On the mainstem Salt River, spring flows that form the headwaters of system. Annual pumping from Fort impoundments have permanently the Verde River. It is estimated that 80 Huachuca production wells has limited the flow regime and suitability to 86 percent of baseflow in the upper decreased from a high of approximately for spikedace or loach minnow. Verde River comes from the Big Chino 3,200 AF in 1989 to a low of Spikedace are extirpated from portions aquifer (Wirt 2005, p. G8). However, approximately 1,400 AF in 2005. In of the Salt and Gila Rivers that were while these withdrawals could addition, Fort Huachuca and the City of once perennial and are now classified as potentially dewater the upper 42 km (26 Sierra Vista have increased the amount regulated (ASU 2002, The Nature mi) of the Verde River (Wirt and of water recharged to the regional Conservancy 2006). Hjalmarson 2000, p. 4), it is uncertain aquifer through construction of effluent Water depletion is also a concern for that this project will occur given the recharge facilities and detention basins the Verde River. In 2000, the Arizona legal and administrative challenges it that not only increase stormwater Department of Water Resources (2000, faces; however, an agreement in recharge but mitigate the negative p. 1–1) reported that the populations of principle was signed between various effects of increased runoff from major cities and towns within the Verde factions associated with water rights urbanization. The amount of effluent River watershed had more than doubled and interests on the Verde River that was recharged by Fort Huachuca in the last 20 years, resulting in more (Citizens Water Advocacy Group 2010; and the City of Sierra Vista in 2005 was than a 39 percent increase in municipal Verde Independent 2010, p. 1). 426 AF and 1,868 AF, respectively. water usage. The Arizona Department of This upper portion of the Verde River During this same year, enhanced Water Resources (2000, p. 1–1) is considered currently occupied by stormwater recharge at detention basins anticipated that human populations in spikedace, and barrier construction and was estimated to be 129 AF. The total the Verde River watershed are expected stream renovation plans are under way net effect of all the combined efforts to double again before 2040, resulting in with the intention of using this initiated by Fort Huachuca has been to more than a 400 percent increase over historically occupied area for recovery reduce the net groundwater

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consumption by approximately 2,272 sedimentation can fill these spaces in, above regulatory limits (Arizona AF (71 percent) since 1989 (Service removing shelter for loach minnow, and Department of Environmental Quality 2007, pp. 41–42). reducing available breeding habitat. 2006, p. 2; Arizona Department of Water In addition to impacts on water Spikedace are typically found over Resources 2011b, p. 1). A preliminary availability within streams, diversion sand, gravel, and rubble substrates study in Aravaipa Creek has found high structures can create barriers for fish (Barber and Minckley 1966, p. 31; levels of lead in two other native fish movement. Larger dams may prevent Propst et al. 1986, p. 12; Rinne and species, Sonora sucker (Catostomus movement of fish between populations Kroeger 1988, p. 1; Rinne 1991, pp. 8– insignis) and roundtail chub (Gila and dramatically alter the flow regime 10). Changes in sediment transport and robusta), as well as in the sediment and of streams through the impoundment of alteration of substrate size can make an in some of the invertebrates. These lead water (Ligon et al. 1995, pp. 184–189). area unsuitable for spikedace. Both levels are high enough that they could These diversions also require periodic species occur in streams with specific negatively impact reproduction maintenance and reconstruction, water velocities, and increasing flow (Reinthal, 2010, pers. comm.). We do resulting in potential habitat damages velocities as a result of channelization not know with certainty whether these and inputs of sediment into the active may also make an area unsuitable. levels of lead would affect spikedace or stream. loach minnow, but we assume similar Water Quality In summary, water withdrawals have impacts would occur as they are occurred historically, and continue to In the past, the threat from water collocated with Sonora sucker and occur, throughout the ranges of pollution was due primarily to roundtail chub in Aravaipa Creek. spikedace and loach minnow. catastrophic pollution events (Rathbun The Service completed contaminant Groundwater pumping and surface 1969, pp. 1–5; Eberhardt 1981, pp. 3–6, studies on the San Francisco River and diversions used for agricultural, 8–10) or chronic leakage from large Gila River in the 1990s. Two sites on the industrial, and municipal purposes can mining operations (Eberhardt 1981, pp. San Francisco River exceeded the lead to declines in the water table and 2, 16). Although this is not as large a International Joint Commission (IJC) dewatering of active stream channels. problem today as it was historically, background level standards for arsenic, Ongoing water withdrawals are known some damage to spikedace and loach cadmium, copper, mercury, and zinc. to occur on the Gila, San Francisco, and minnow populations still occurs from Cadmium levels at site 2 were Verde rivers, and are occurring at occasional spills or chronic inability to approximately 16.5 times the limited levels, with the potential for meet water quality standards (United background level, while copper was increased withdrawals on Aravaipa States v. ASARCO, No. 98–0137 PHX– nearly 25 times greater than the Creek. ROS (D. Ariz. June 2, 1998)). Mine background level. The two San tailings from a number of past and Stream Channel Alteration Francisco River sites did not exceed present facilities throughout the Gila domestic water source water quality Sections of many Gila Basin rivers Basin would threaten spikedace standards for trace element and streams have been, and continue to populations if catastrophic spills occur concentrations, where those standards be, channelized for flood control, which (Arizona Department of Health Services are provided for Arizona. The study site disrupts natural channel dynamics 2010, p. 3). Spills or discharges have closest to, but downstream of, the (sediment scouring and deposition) and occurred in the Gila River and affected portion of the Gila River included in the promotes the loss of riparian plant streams within the watersheds of designation exceeded IJC background communities. Channelization changes spikedace and loach minnow, including level standards for trace element the stream gradient above and below the the Gila River, San Francisco River, San concentrations for arsenic, cadmium, channelization. Water velocity increases Pedro River, and some of their and copper. DDE was recovered in all in the channelized section, which tributaries (Environmental Protection whole body and edible fish samples, as results in increased rates of erosion of Agency (EPA) 1997, pp. 24–67; Arizona were aluminum, arsenic, barium, the stream and its tributaries, Department of Environmental Quality chromium, selenium, and strontium. accompanied by gradual deposits of 2000, p. 6; Church et al. 2005, p. 40; Cadmium, mercury, and selenium sediment in downstream reaches that Arizona Department of Environmental concentrations were determined to may increase the risk of flooding Quality 2007, p. 1). potentially pose a threat to fish-eating (Emerson 1971, p. 326; Simpson 1982, In January of 2006, the Arizona birds in the Gila River basin (Baker and p. 122). Historical and ongoing Department of Environmental Quality King 1994, pp. 6–14, 17, 19, 22). channelization will continue to announced that it had been conducting Organochlorine contaminants contribute to riparian and aquatic a remedial investigation at the Klondyke detected included heptachlor, habitat decline most notably eliminating tailings site on Aravaipa Creek, which chlordane, and DDE. The concentrations cover and reducing nutrient input. currently supports one of the two of these pesticides were below Stream channel alteration can affect remaining populations where spikedace concentrations known to affect survival spikedace and loach minnow habitat by and loach minnow are considered and reproduction of most fish species. reducing its complexity, eliminating common. The Klondyke tailings site was The study recommended continued cover, reducing nutrient input, a mill that processed ore to recover lead, monitoring, due to the high cadmium improving habitat for nonnative species, zinc, copper, silver, and gold between and mercury concentrations that changing sediment transport, altering the 1920s and the 1970s. There are eight approach the critical reproductive effect substrate size, increasing flow contaminants in the tailings and soil at threshold level in more than one-half of velocities, and reducing the length of the Klondyke tailings site that are at the samples. In addition, the study the stream (and therefore the amount of levels above regulatory limits. These recommended monitoring for selenium aquatic habitat available) (Gorman and contaminants are: antimony; arsenic; as selenium levels exceeded dietary Karr 1978, pp. 512–513; Simpson 1982, beryllium; cadmium; copper; lead; levels for protection of avian predators. p. 122; Schmetterling et al. 2001, pp. 7– manganese; and zinc. Samples of Such monitoring has not occurred. 10). Loach minnow occupy interstitial shallow groundwater collected at the The Arizona Department of Water spaces between cobble (Propst and site contained arsenic, beryllium, Resources notes that 67 sites on the San Bestgen 1991, p. 34), and increases in cadmium, chromium, lead, and nickel Pedro River have parameter

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concentrations that have equaled or Exposure to pesticides can result in a wildfires and their suppression. Based exceeded their drinking water variety of behaviors. Sublethal on historical records and long term tree- standards. The most frequently equaled behaviors are those that do not result in ring records, wildfires have increased in or exceeded parameters included death. Sublethal responses of fish to the ponderosa pine forests of the arsenic and fluoride, but other pesticide exposure can include central Southwest, including the range of the parameters equaled or exceeded in the nervous system disorders, increased spikedace and loach minnow (Swetnam sites measured in the San Pedro Basin ventilation rates, loss of equilibrium, and Betancourt 1990, pp. 1017, 1019; were cadmium, lead, nitrates, beryllium, rapid, jerky movements, dark Swetnam and Betancourt 1998, pp. mercury, and total dissolved solids discoloration or hemorrhaging in 3131–3135). This is due to a (Arizona Department of Water muscles and beneath the dorsal fin, combination of decades of fire Resources 2011c, p. 1). The Verde River erratic, uncoordinated swimming suppression, increases in biomass due has three different reaches that exceed movements with spasms and to increased precipitation after 1976, standards for turbidity, totaling 37.5 convulsions, and spinal abnormalities and warming temperatures coupled miles between Oak Creek and West (Meyer and Barclay 1990, p. 21). with recent drought conditions Clear Creek. Additionally, Oak Creek Exposure to metals at toxic levels can (University of Arizona 2006, pp. 1, 3). exceeds the standards for E. coli have varying effects. Low levels of some As wildfires increase, so does the use of (Arizona Department of Water metals, such as selenium, are essential fire-retardant chemical applications. Resources 2011d, p. 1). for good health. However, excess levels Some fire-retardant chemicals are There are few studies, with the of selenium can be toxic, and selenium ammonia-based, which is toxic to exception of the study at Aravaipa is considered one of the most toxic aquatic wildlife; however, many Creek, which discuss contaminants on elements to fish (Sorensen 1991, pp. 17– formulations also contain yellow spikedace and loach minnow. 22). For other metals such as lead, all prussiate of soda (sodium ferrocyanide), Generally, contaminants can have both known effects on biological systems are which is added as an anticorrosive sublethal and lethal effects. Sublethal negative (Hoffman et al. 1995, p. 356). agent. Such formulations are toxic for Exposure to metals causes a variety of effects are those, such as the lead fish, aquatic invertebrates, and algae impacts, including disruption to feeding contamination at Aravaipa Creek, which (Angeler et al. 2006, pp. 171–172; Calfee behaviors, altered respiratory rates, may reduce a species’ ability to and Little 2003, pp. 1527–1530; Little growth inhibition, and delayed sexual reproduce. Lethal are those effects that and Calfee 2002, p. 5; Buhl and maturation; damage to body structure result in death for the species. Large fish Hamilton 1998, p. 1598; Hamilton et al. including skin, nervous system, and kills are more rare now than in the past. 1998, p. 3; Gaikwokski et al. 1996, pp. musculature, gills, fins, and spines; Pollution is increasingly more 1372–1373). Toxicity of these damage to organs including the liver, formulations is enhanced by sunlight widespread and more often from kidneys, intestines, heart, and (Calfee and Little 2003, pp. 1529–1533). nonpoint sources. Urban and suburban chemoreceptors (used in migration); In a 2008 biological opinion issued by development is one source of nonpoint- alterations to blood and blood the Service to the U.S. Forest Service source pollution. Increasing the amount chemistry, including red blood cells, (USFS) on the nationwide use of fire of runoff from roads, golf courses, and hemoglobin levels, protein retardants, the Service concluded that other sources of petroleum products, concentrations, glucose concentrations, the use of fire retardants can cause pesticides, and other toxic materials can and antibody titers; and damage to the mortality to fish by exposing them to cause changes in fish communities nervous system leading to muscle ammonia. We concluded in the opinion (Wang et al. 1997, pp. 6, 9, 11). Nutrient spasms, paralysis, hyperactivity, and a that the proposed action, which and sediment loads are increasing in loss of equilibrium (Sorensen 1991, pp. included the application of fire urban areas (King et al. 1997, pp. 7–24, 17–22, 34–48 (selenium), 74–78 retardants throughout the range of the 38, 39) and, combined with depleted (arsenic); 104–107 (lead); 153–164 species, was likely to jeopardize the stream flows, can be serious threats to (zinc); 199–219 (cadmium); 253–275 continued existence of the spikedace aquatic ecosystems during some periods (copper); and 312–323 (mercury)). and loach minnow (Service 2008a). This of the year. Sewage effluent can contain The impacts of a toxin in a system consultation was recently reinitiated lead, especially where the treatment vary by species, as well as by age level and completed in October 2011. The plant receives industrial discharges or of the organism. For some metals, such revised biological opinion included highway runoff (Hoffman et al. 1995, p. as copper or mercury, fish are more additional buffers and protective 361). The number of bridges and roads severely affected at the embryonic and measures and concluded that the increases with expanding rural and reproductive stages of the life cycle revised protocol for fire retardant use urban populations in Arizona (Arizona (Sorensen 1991, p. 269; Hoffman et al. was not likely to jeopardize the Department of Transportation 2000, pp. 1995, p. 398). It is also important to note continued existence of either spikedace 1–3), and pose significant risks to the that, for some metals, such as cadmium, or loach minnow (Service 2011). fish from increases in toxic materials copper, lead, and mercury, increased Severe wildfires capable of extirpating along roadways (Trombulak and Frissell temperatures or changes in water or decimating fish populations are a 2000, pp. 22–24). Some metals, like lead chemistry, such as pH or organic matter, relatively recent phenomenon, and and cadmium, are associated with fuel can affect the toxicity of the metal result from the cumulative effects of combustion. Lead can be found in (Sorensen 1991, p. 184; Hoffman et al. historical or ongoing grazing and fire vehicle emissions (Hoffman et al. 1995, 1995, pp. 395–396). Therefore, there can suppression (Madany and West 1983, pp. 369, 405). be an increased threat from exposure to pp. 665–667; Savage and Swetnam As noted previously, human toxins in streams that have also 1990, p. 2374; Swetnam 1990, p. 12; populations within the ranges of undergone alterations such as vegetation Touchan et al. 1995, pp. 268–271; spikedace and loach minnow are removal due to fire or construction and Swetnam and Baisan 1996, p. 29; Belsky expected to increase over the next 20 maintenance activities, or improper and Blumenthal 1997, pp. 315–316, years. Therefore, we expect a livestock grazing. 324–325; Gresswell 1999, pp. 193–194, corresponding increase in nonpoint- An additional, increasing source of 213). Historical wildfires were primarily source pollution. contamination for streams is caused by cool-burning understory fires with

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return intervals of 4 to 8 years in completed in the fall of 2011 indicated Arizona University 2005, pp. 134–136). ponderosa pine (Swetnam and Dieterich reduced numbers of loach minnow Similar impacts have been observed at 1985, pp. 390, 395). Cooper (1960, p. (Adelsberger et al. 2011, p. 1). Aravaipa Creek. We do not have 137) concluded that, prior to the 1950s, Effects of fire may be direct and information on the impacts of litter on crown fires were extremely rare or immediate or indirect and sustained spikedace and loach minnow; however, nonexistent in the region. However, over time. Because spikedace and loach impacts from vegetation loss can since 1989, high-severity wildfires, and minnow are found primarily in the include soil compaction, which when subsequent floods and ash flows, have lower elevation, higher-order streams, combined with vegetation loss, can caused the extirpation of several they are most likely affected by the result in increased runoff and populations of Gila trout in the Gila indirect effects of fire (e.g., ash flows, sedimentation in waterways (Monz et National Forest, New Mexico (Propst et increased water temperatures), not al. 2010, pp. 551–553; Andereck 1993, al. 1992, pp. 119–120, 123; Brown et al. direct effects (e.g., drastic changes in p. 2). 2001, pp. 140–141). It is not known if pH, ammonium concentrations). Recreation overuse can result in spikedace or loach minnow have Indirect effects of fire include ash and decreased riparian vegetation (USFS suffered local extirpations; however, debris flows, increases in water 2008, pp. 7–17) and subsequent native fishes, including spikedace and temperature, increased nutrient inputs, increases in stream temperatures. loach minnow, in the West Fork Gila and sedimentation, some of which can Recreation is cited as one of the causes River, showed 60 to 80 percent last for several years to more than a of impairment due to water temperature decreases in population following the decade after the fire (Amaranthus et al. on the West Fork Gila River (EPA 2010, Cub Fire in 2002, due to flooding events 1989, pp. 75–77; Propst et al. 1992, pp. p. 1). We discuss temperature tolerances after the fire (Rinne and Carter 2008, pp. 119–120; Gresswell 1999, pp. 194–211; below in the microhabitat discussions 171). Increased fines (sediments) and Burton 2005, pp. 145–146; Dunham et for each species. Spikedace and loach ash may be continuing to affect the al. 2007, pp. 335, 340–342; Rinne and minnow are known to have a range of populations on the West Fork Gila, near Carter 2008, pp. 169–171; Mahlum et al. temperatures in which they occur, and the Gila Cliff Dwellings (Propst et al. 2011, pp. 243–246). Of these, ash flows recent research by the University of 2008, p. 1247). probably have the greatest effect on Arizona has determined upper Since the proposed rule was spikedace and loach minnow. Ash and temperature tolerances for the two published in October of 2011, the debris flows may occur months after species. Spikedace did not survive Wallow Fire burned portions of the fires, when barren soils are eroded exposure of 30 days at 34 or 36 °C (93.2 critical habitat designations for during monsoonal rain storms (Bozek or 96.8 °F), and 50 percent mortality spikedace and loach minnow, and Young 1994, pp. 92–94). Ash and occurred after 30 days at 32.1 °C (89.8 specifically the Black River Complex in fine particulate matter created by fire °F). In addition, growth rate was slowed Unit 2 (loach minnow only), and the can fill the interstitial spaces between at 32 °C (89.6 °F), as well as at the lower Blue River Complex in Unit 7 (both gravel particles, eliminating spawning test temperatures of 10 and 4 °C (50 and species). The Wallow Fire encompassed habitat or, depending on the timing, 39.2 °F). Multiple behavioral and just over 217,721 ha (538,000 ac) total suffocating eggs that are in the gravel. physiological changes were observed, in Arizona and New Mexico (InciWeb Ash and debris flows can also decimate indicating the fish became stressed at 2011), and was the largest wildfire in aquatic invertebrate populations that the 30, 32, and 33 °C (86, 89.6 and 91.4 °F) Arizona’s history. fish depend on for food (Molles 1985, p. treatments. Similarly, the study Portions of Units 2 and 7 of the 281). determined that no loach minnow critical habitat designation fall within survived for 30 days at 32 °C (89.6 °F), Recreation the Wallow Fire perimeter. Within Unit and that 50 percent mortality occurred 2, the North Fork East Fork Black River The impacts to spikedace and loach after 30 days at 30.6 °C (87.1 °F). For falls within an unburned area inside the minnow from recreation can include loach minnow, growth rate slowed at 28 perimeter of the fire, as does most of movement of people or livestock, such and 30 °C (82.4 and 86.0 °F) compared Boneyard Creek. The majority of East as horses or mules, along streambanks, to growth at 25 °C (77 °F), indicating Fork Black River falls within an area trampling, loss of vegetation, and that loach minnow were stressed at that experienced low burn severity, but increased danger of fire (Northern sublethal temperatures. The study does cross a few areas that were either Arizona University 2005, p. 136; Monz concludes that temperature tolerance in unburned or burned at moderate burn et al. 2010, pp. 553–554). In the arid the wild may be even lower due to the severity. Coyote Creek is in an area Gila River Basin, recreational impacts influence of additional stressors, almost entirely burned at low severity. are disproportionately distributed along including disease, predation, Within Unit 7, the majority of Campbell streams as a primary focus for recreation competition, or poor water quality. Blue Creek is within unburned or low (Briggs 1996, p. 36). Within the range of burn severity areas; however, spikedace and loach minnow, the Roads and Bridges approximately 2.4 km (1.5 mi) of the majority of the occupied areas occur on Roads impact Gila River Basin upper end of Campbell Blue Creek is Federal lands, which are managed for streams (Dobyns 1981, pp. 120–129, within moderate and high burn severity. recreation and other purposes. 167, 198–201), including spikedace, The Wallow Fire stopped just west of Spikedace and loach minnow are loach minnow, and their habitats (Jones the Blue River, but came within experiencing increasing habitat impacts et al. 2000, pp. 82–83). The need for approximately 0.3 km (0.2 mi) of the from such use in some areas. For bridges and roads increases with River. However, the rainfall during the example, Fossil Creek experienced an increasing rural and urban populations summer monsoon, which began before increase in trail use at one site, with an in Arizona (Arizona Department of the fire was extinguished, contributed estimated 8,606 hikers using the trail in Transportation 2000, pp. 1–3). In ash and sediment to both streams. In the 1998, and an estimated 19,650 hikers addition, existing roads and bridges Blue River, ash and sediment travelled using the trail in 2003. Dispersed have ongoing maintenance requirements as far downstream as the San Francisco camping also occurs in the area. The that result in alterations of stream River, resulting in fish kills (Blasius, greatest impacts from camping were channels within spikedace and loach 2011, pers. comm.). Fish surveys vegetation loss and litter (Northern minnow habitats (Service 1994a, pp. 8–

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12; Service 1995a, pp. 10–12; Service Livestock Grazing combination, loss of riparian vegetation 1995b, pp. 5–7; Service 1997a, pp. 10– Livestock grazing has been one of the and bank erosion can alter channel 15; Service 1997b, pp. 54–77). Bridge most widespread and long-term causes morphology, including increased construction or repair causes channel of adverse impacts to native fishes and erosion and deposition, increased alteration and, if not carefully executed, their habitat (Miller 1961, pp. 394–395, sediment loads, downcutting, and an can result in long-term channel 399), but is one of the few threats where increased width-to-depth ratio, all of adjustments, altering habitats upstream adverse effects to species such as which lead to a loss of spikedace and and downstream. In some areas, low- spikedace and loach minnow are loach minnow habitat components. water crossings exist within occupied decreasing, due to improved Livestock grazing management also spikedace and loach minnow habitats management on Federal lands (Service continues to include construction and and cause channel modification and 1997c, pp. 121–129, 137–141; Service maintenance of open stock tanks, which habitat disruption. Low-water crossings 2001, pp. 50–67). This improvement are often stocked with nonnative aquatic species harmful to spikedace and loach on general-use roads exist in a number occurred primarily by discontinuing minnow (Service 1997b, pp. 54–77) if of areas that may support spikedace and grazing in the riparian and stream they escape or are transported to waters loach minnow. These crossings corridors. However, although adverse effects are less than in the past, where these native fish occur. frequently require maintenance An indirect effect of grazing can livestock grazing within watersheds following minor flooding. include the development of water tanks where spikedace and loach minnow and Generally, there are fewer new bridge for livestock. In some cases, stocktanks their habitats are located continues to construction projects within critical are used to stock nonnative fish for cause adverse effects. These adverse sportfishing, or they may support other habitat; however, one proposed bridge effects occur through watershed will occur near the designation for nonnative aquatic species such as alteration and subsequent changes in bullfrogs or crayfish. In cases where spikedace in Unit 2 over Tonto Creek. the natural flow regime, sediment Road and bridge maintenance and stocktanks are in close proximity to live production, and stream channel streams, they may occasionally be repairs occur frequently on the Blue morphology (Platts 1990, pp. I–9—I–11; River. There have been repeated road breached or flooded, with nonnative Belsky et al. 1999, pp. 1–3, 8–10; fish escaping from the stocktank and repairs near the Gila Cliff Dwellings on Service 2001, pp. 50–67). the West Fork Gila River because the entering stream habitats (Hedwall and Livestock grazing can destabilize Sponholtz 2005, pp. 1–2; Stone et al. bridge span is too short to accommodate stream channels and disturb riparian 2007, p. 133). peak flows. This is a common problem ecosystem functions (Platts 1990, pp. I– on bridges that cross the Gila River, and 9—I–11; Armour et al. 1991, pp. 7–10; Climate Conditions on other rivers occupied by spikedace Tellman et al. 1997, pp. 20–21, 33, 47, Climate conditions have contributed and loach minnow in the Southwest. In 101–102; Wyman et al. 2006, pp. 5–7). to the status of the spikedace and loach an attempt to protect bridges, large Medina et al. (2005, p. 99) note that the minnow now and will likely continue amounts of fill (such as boulders, rip impacts of grazing vary within and into the future. While floods may rap, and dirt) are used to confine and among ecoregions, and that some benefit the species, habitat drying redirect the river. Typically, this habitat riparian areas can sustain little to no affects the occurrence of natural events, alteration is detrimental to spikedace ungulate grazing, while others can such as fire, drought, and forest die-off, and loach minnow because it changes sustain very high use. They further note and increases the chances of disease and the channel gradient and substrate that threatened and endangered fish infection. composition, and reduces habitat populations and their associated Consideration of climate change is a availability. Eventually, peak flows riparian habitat ‘‘* * * may require component of our analyses under the remove the fill material, roads and some form of protection from grazing of Endangered Species Act. In general bridges are damaged, and the resulting all ungulates (e.g., elk, deer, cattle) terms, ‘‘climate change’’ refers to a repairs and reconstruction lead to * * *’’. Improper livestock grazing can change in the state of the climate additional habitat disturbance (Service negatively affect spikedace and loach (whether due to natural variability, 1998, 2002a, 2005, 2008b, 2008c, 2009, minnow through removal of riparian human activity, or both) that can be 2010a). vegetation (Propst et al. 1986, p. 3; Clary identified by changes in the mean or and Webster 1989, p. 1; Clary and variability of its properties, and that The impacts of bridge and road Medin 1990, p. 1; Schulz and Leininger persists for an extended period— construction, usage, and repairs can 1990, p. 295; Fleishner 1994, pp. 631– typically decades or longer include increased sedimentation, either 633, 635–636), that can result in (Intergovernmental Panel on Climate due to driving across low-water reduced bank stability and higher water Change (IPCC) 2007a, p. 78). crossings in active stream channels, or temperatures (Kauffman and Krueger Changes in climate are occurring. due to excavation associated with 1984, pp. 432–434; Platts and Nelson Examples include warming of the global maintenance and repair activities. 1989, pp. 453, 455; Fleishner 1994, pp. climate system over recent decades, and Vehicles using low-water crossings as 635–636; Belsky et al. 1999, pp. 2–5, 9– substantial increases in precipitation in well as heavy equipment in active 10). Livestock grazing can also cause some regions of the world and decreases channels during construction or repairs increased sediment in the stream in other regions (for these and other can both harm eggs of spikedace and channel, due to streambank trampling examples see IPCC 2007a, p. 30; loach minnow, and compress substrates and riparian vegetation loss (Weltz and Solomon et al. 2007, pp. 35–54, 82–85). so that the interstitial spaces used by Wood 1986, pp. 364–368; Pearce et al. Most of the observed increase in adult loach minnow are removed. 1998, pp. 302, 307; Belsky et al. 1999, global average temperature since the Maintenance and construction work on p. 10). Livestock can physically alter the mid-20th century cannot be explained banks around bridges and roads may streambank through trampling and by natural variability in climate, and is also lead to increased sedimentation shearing, leading to bank erosion very likely due to the observed increase due to sediment disturbance or the (Trimble and Mendel 1995, pp. 243– in greenhouse gas concentrations in the removal of vegetation. 244; Belsky et al. 1999, p. 1). In atmosphere as a result of human

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activities, particularly emissions of throughout all or a significant portion of 2011c). Habitat losses occur when carbon dioxide from fossil fuel use its range. If a species is listed as surface waters decrease, resulting in (IPCC 2007a, p. 5 and Figure SPM.3; threatened or endangered, knowledge insufficient flows which may continue Solomon et al. 2007, pp. 21–35). regarding the species’ vulnerability to, to fill low areas as pool habitat, but Therefore, to project future changes in and impacts from, climate-associated which do not continue to have sufficient temperature and other climate changes in environmental conditions depth or velocity to create the habitat conditions, scientists use a variety of can be used to help devise appropriate types preferred by spikedace and loach climate models (which include strategies for its recovery. minnow. consideration of natural processes and Climate simulations of Palmer Summary of Factor A variability) in conjunction with various Drought Severity Index (PSDI) (a scenarios of potential levels and timing calculation of the cumulative effects of Spikedace and loach minnow face a of greenhouse gas emissions (e.g., Meehl precipitation and temperature on variety of threats throughout their range et al. 2007 entire; Ganguly et al. 2009, surface moisture balance) for the in Arizona and New Mexico, including pp. 11555, 15558; Prinn et al. 2011, pp. Southwest for the periods of 2006–2030 groundwater pumping, surface water 527, 529). and 2035–2060 predict an increase in diversions, impoundments, dams, The projected magnitude of average drought severity with surface warming. channelization, improperly managed global warming for this century is very Additionally, drought still increases livestock grazing, wildfire, agriculture, similar under all combinations of during wetter simulations because the mining, road building, residential models and emissions scenarios until effect of heat-related moisture loss development, and recreation. These about 2030. Thereafter, the projections (Hoerling and Eicheid 2007, p. 19). activities, alone and in combination, show greater divergence across Annual mean precipitation is likely to contribute to riparian habitat loss and scenarios. Despite these differences in decrease in the Southwest as well as the degradation of aquatic resources in projected magnitude, however, the length of snow season and snow depth Arizona and New Mexico. overall trajectory is one of increased (IPCC 2007b, p. 887). Most models Changes in flow regimes are expected warming throughout this century under project a widespread decrease in snow to continue into the foreseeable future. all scenarios, including those which depth in the Rocky Mountains and Groundwater pumping, surface water assume a reduction of greenhouse gas earlier snowmelt (IPCC 2007b, p. 891). diversions, and drought are reducing emissions (Meehl et al. 2007, pp. 760– Exactly how climate change will affect available surface flow in streams 764; Ganguly et al. 2009, pp. 15555– precipitation is less certain, because occupied by spikedace and loach 15558; Prinn et al. 2011, pp. 527, 529). precipitation predictions are based on minnow. These conditions are ongoing, (For examples of other global climate continental-scale general circulation but drought conditions are worsening projections, see IPCC 2007b, p. 8.) models that do not yet account for land and there are at least two large diversion Various types of changes in climate use and land cover change effects on projects in the planning stages which can have direct or indirect effects on climate or regional phenomena. may result in further water withdrawals species and these may be positive or Consistent with recent observations in on the Verde and Gila rivers. For negative depending on the species and changes from climate, the outlook spikedace and loach minnow, reduced other relevant considerations, including presented for the Southwest predicts surface flow in streams can decrease the interacting effects with existing habitat warmer, drier, drought-like conditions amount of available habitat by fragmentation or other nonclimate (Seager et al. 2007, p. 1181; Hoerling eliminating flowing portions of the variables. There are three main and Eischeid 2007, p. 19). A decline in stream used by the two species. In components of vulnerability to climate water resources with or without climate addition, stream channel alterations, change: Exposure to changes in climate, change will be a significant factor in the such as diversion structures and sensitivity to such changes, and compromised watersheds of the desert channelization of streams, affect the adaptive capacity (IPCC 2007a, p. 89; southwest. flow regimes, substrate, and Glick et al. 2011, pp. 19–22). Because On August 16, 2011, the U.S. sedimentation levels that are needed for aspects of these components can vary by Department of Agriculture granted a suitable spikedace and loach minnow species and situation, as can request from the Governor of Arizona to habitat. interactions among climate and assign Apache, Cochise, Graham, Impacts associated with roads and nonclimate conditions, there is no Greenlee, and Santa Cruz counties as bridges, changes in water quality, single way to conduct our analyses. We primary natural disaster areas due to improper livestock grazing, and use the best scientific and commercial losses caused by drought, wildfires, and recreation have altered or destroyed data available to identify potential high winds. The purpose of such a many of the rivers, streams, and impacts and responses by species that designation is to make farm operators in watershed functions in the ranges of the may arise in association with different both primary and contiguous disaster spikedace and loach minnow. While components of climate change, areas eligible to be considered for fish kills are less common now than in including interactions with nonclimate assistance from the Farm Service the past, water quality issues exist in conditions. Agency (FSA) (Vilsack 2011). However, several streams, and can include As is the case with all potential this designation is a recognition of contamination by cadmium, lead, threats, if a species is currently affected drought in counties inhabited by nitrates, beryllium, mercury, and total or is expected to be affected in a spikedace and loach minnow, including dissolved solids. These contaminants negative way by one or more climate- Apache, Graham, and Greenlee can have adverse effects on the prey related impacts, this does not counties. For New Mexico, the NMOSE base of the species and can be either necessarily mean the species meets the reported that, for the first 5 months of sublethal, affecting their overall health definition of a threatened or endangered 2011, statewide precipitation was only or ability to reproduce, or can be lethal. species as defined under the Act. The 35 percent of normal in New Mexico Construction and maintenance at impacts of climate change and other (NMOSE 2011b). They include bridges, improper livestock grazing, conditions would need to be to the level spikedace and loach minnow on a list wildfire, and recreation may also that the species is in danger of of species likely to be affected by remove or reduce vegetation, which can extinction, or likely to become so, drought due to loss of habitat (NMOSE impact water temperatures. With

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increased temperatures, spikedace and species that are still extant, but are directly affect others, such as by loach minnow may experience multiple considered to be endangered or fighting, producing toxins, or preying behavioral and physiological changes at threatened, introduced nonnative upon them (Schoener 1983, p. 257). elevated temperatures, and extreme species are a primary cause of the Exploitive competition occurs when temperatures can result in death. decline (Lassuy 1995, pp. 391–394). individuals affect others indirectly, such Decreases in precipitation and increases Release or dispersal of new nonnative as through use of common resources in temperatures due to climate change aquatic organisms is a continuing (Douglas et al. 1994, p. 14). Interference and drought are likely to further limit phenomenon in the species’ range competition in the form of predation is the areas where spikedace or loach (Rosen et al. 1995, p. 254). Currently, discussed here, while a discussion of minnow can persist by causing further the majority of native fishes in Arizona the history of nonnative species decreases in surface flows and and 80 percent of native fishes in the introductions and resulting interference potentially increases in temperature. Southwest are on either State or Federal competition for resources is under The combined impacts of decreased protection lists. Factor E below. flows, increased sedimentation, Nonnative fish introductions in the increased temperatures, and impaired southwestern United States began before Altered Flow Regimes and Nonnative water quality diminish the amount of 1900, and have steadily increased in Predators habitat available and the suitability of frequency (Rinne and Stefferud 1996, p. Alterations of stream channels that habitat in some areas. These 29). New species are continually being through channelization, surface and impacts are further exacerbated by introduced through various groundwater withdrawals are discussed predation by and competition with mechanisms, including aquaculture, above under Factor A. Propst et al. nonnative species and other factors, as aquarium trade, sport fish stocking, live (2008, p. 1236) completed a study on outlined below. bait use, interbasin water transfers, and the interaction of physical modification general ‘‘bait bucket transport,’’ where of stream channels coupled with the B. Overutilization for Commercial, people move fish from one area to widespread introduction and Recreational, Scientific, or Educational another without authorization and for a establishment of nonnative aquatic Purposes variety of purposes (Service 1994b, pp. species. Following evaluation of six Currently, collection of spikedace and 12–16; Service 1999, pp. 24–59). Nearly study sites in the upper Gila River loach minnow in Arizona is prohibited 100 kinds of nonnative fishes have been drainage, they determined that the by Arizona Game and Fish Commission stocked or introduced into streams in negative association between nonnatives Order 40, except where such collection the Southwest (Minckley and Marsh and native fishes indicated a complex is authorized by special permit (Arizona 2009, p. 51). Nonnative fishes known to relationship between naturally variable Game and Fish Department (AGFD) occur within the historical range of the flows and nonnative species, and varied 2009, p. 5). The collection of these spikedace include channel catfish at the study sites (Propst et al. 2008, p. species is prohibited in the State of New (Ictalurus punctatus), flathead catfish 1236). For the West, Middle, and East Mexico except by special scientific (Pylodictis olivaris), red shiner Forks of the Gila River, they determined permit (New Mexico Department of (Cyprinella lutrensis), fathead minnow that natural flow alone would be Game and Fish (NMDGF) 2010, p. 4). (Pimephales promelas), green sunfish insufficient to conserve native fish Because spikedace and loach minnow (Lepomis cyanellus), largemouth bass assemblages. The Tularosa and San do not grow larger than 80 mm (3 in), (Micropterus salmoides), smallmouth Francisco River study sites were we conclude that angling for this bass (Micropterus dolomieui), rainbow affected by human use (albeit at low species is not a threat. No known trout (Oncorhynchus mykiss), brown levels), and neither site supported more commercial uses exist for spikedace or trout (Salmo trutta), mosquitofish than a few nonnative fishes, with none loach minnow. A limited amount of (Gambusia affinis), carp (Cyprinus in most years. Declines of loach minnow scientific collection occurs, but does not carpio), bluegill (Lepomis macrochiris), in this area may be due to the natural pose a threat to these species because it yellow bullhead (Ameiurus natalis), variability of the system; however, the is regulated by the States. Therefore, we black bullhead (Ameiurus melas), and research concluded that resilience of have determined that overutilization for goldfish (Carassius auratus) (ASU native fish assemblages may be commercial, recreational, scientific, or 2002). compromised by the presence of the educational purposes is not a threat to In the Gila River basin, introduction nonnative species. spikedace or loach minnow at this time. of nonnative species is considered a The Gila River study site, just primary factor in the decline of native downstream of the town of Cliff, was the C. Disease or Predation fish species (Minckley 1985, pp. 1, 68; most affected by human activity, and The introduction and spread of Williams et al. 1985, pp. 1–2; Minckley was exposed to the greatest number of nonnative species has been identified as and Deacon 1991, pp. 15–17; Douglas et nonnative fishes; however, over the one of the primary factors in the al. 1994, pp. 9–11; Clarkson et al. 2005 course of the study, the native fish continuing decline of native fishes p. 20; Olden and Poff 2005, pp. 79–87). assemblage at the site did not change. throughout North America and Aquatic and semiaquatic mammals, Although not entirely explained, the particularly in the Southwest (Miller reptiles, amphibians, crustaceans, researchers indicate that the lack of 1961, pp. 365, 397–398; Lachner et al. mollusks (snails and clams), parasites, optimal (i.e., pool) habitat for nonnative 1970, p. 21; Ono et al. 1983, pp. 90–91; disease organisms, and aquatic and predators and the comparative Carlson and Muth 1989, pp. 222, 234; riparian vascular plants outside of their abundance of habitats (e.g., cobble Fuller et al. 1999, p. 1; Propst et al. historical range, have all been riffles and shallow gravel runs) favored 2008, pp. 1246–1251; Pilger et al. 2010, documented to adversely affect aquatic by native fishes partially explains the pp. 300, 311–312). Miller et al. (1989, ecosystems (Cohen and Carlton 1995, persistence of the native fish pp. 22, 34, 36) concluded that pp. i–iv). The effects of nonnative fish assemblage. They speculate that other introduced nonnative species were a competition on spikedace and loach factors, including thermal regime or causal factor in 68 percent of fish minnow can be classified as either turbidity, might also have buffered the extinctions in North America in the last interference or exploitive. Interference interactions between native and 100 years. For the 70 percent of fish competition occurs when individuals nonnative fishes (Propst et al. 2008, pp.

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1246–1249). The study concludes that, moderate numbers in 1985 (Propst et al. nonnative fishes in remaining suitable while native fish assemblages may 1986, p. 83). areas, thus reducing the availability and persist through drought, their resistance The majority of areas considered utility of these areas for native species. and resilience are compromised if occupied by spikedace and loach It should be noted that the effects of nonnative predators are present. They minnow have seen a shift from a nonnative fishes often occur with, or are also conclude that, while retention of predominance of native fishes to a exacerbated by, changes in flow regimes natural hydrologic regimes is crucial for predominance of nonnative fishes. For or declines in habitat conditions (see the persistence of native fish spikedace, this is best demonstrated on Factor A above) and should be assemblages in arid-land streams, the upper Verde River, where native considered against the backdrop of removal and preclusion of nonnative species dominated the total fish historical habitat degradation that has predators and competitors are equally community at greater than 80 percent occurred over time (Minckley and Meffe important (Propst et al. 2008, p. 1251). from 1994 to 1996, before dropping to 1987, pp. 94, 103; Rinne 1991, p. 12). approximately 20 percent in 1997 and Nonnative channel catfish, flathead Predation 19 percent in 2001. At the same time, catfish, and smallmouth bass are present Nonnative channel catfish, flathead three nonnative species increased in in most spikedace habitats, including catfish, and smallmouth bass all prey on abundance between 1994 and 2000 the Verde River (Minckley 1993, pp. 7– spikedace and loach minnow, as (Rinne et al. 2004, pp. 1–2). Similar 13; Jahrke and Clark 1999, pp. 2–7; indicated by prey remains of native changes in the dominance of nonnative Rinne 2004, pp. 1–2; Bahm and fishes in the stomachs of these species fishes have occurred on the Middle Fork Robinson 2009b, pp. 1–4; Robinson and (Propst et al. 1986, p. 82; Propst et al. Gila River, with a 65 percent decline of Crowder 2009, pp. 3–5); the Gila River 1988, p. 64; Bonar et al. 2004, pp. 13, native fishes between 1988 and 2001 (Propst et al. 1986, pp. 14–31; Springer 16–21). Channel catfish move into riffles (Propst 2002, pp. 21–25). 1995, pp. 6–10; Jakle 1995, pp. 5–7; to feed, preying on the same animals In other areas, nonnative fishes may Propst et al. 2009, pp. 14–17); the San most important to loach minnows, not dominate the system, but their Pedro River (Jakle 1992, pp. 3–5; while juvenile flathead catfish prey on abundance has increased, while Minckley 1987, pp. 2, 16); the San loach minnows (Service 1991a, p. 5). spikedace and loach minnow Francisco River (Papoulias et al. 1989, abundance has declined. This is the Smallmouth bass are known to co-occur pp. 77–80; Propst et al. 2009, pp. 5–6); case for the Cliff-Gila Valley area of the with spikedace and are documented the Blue River (ASU 1994, multiple Gila River, where nonnative fishes predators of the species (Service 1991b, reports; ASU 1995, multiple reports; increased from 1.1 percent to 8.5 p. 6; Paroz et al. 2009, pp. 12, 18). When Clarkson et al. 2008, pp. 3–4); the percent, while native fishes declined smallmouth bass densities increased on Tularosa River, East Fork Gila River, steadily over a 40-year period (Propst et the East Fork Gila River, densities of West Fork Gila River, and Middle Fork al. 1986, pp. 27–32). At the Redrock and native fishes decreased (Stefferud et al. Gila River (Paroz et al. 2009, p. 12; Virden valleys on the Gila River, the Propst et al. 2009, pp. 7–13) and Eagle 2011, pp. 11–12). Green sunfish are also relative abundance in nonnative fishes Creek (Marsh et al. 2003, p. 667; ASU thought to be a predator, likely in the same time period increased from 2008, multiple reports; Bahm and responsible for replacement of native 2.4 percent to 17.9 percent (Propst et al. Robinson 2009a, pp. 2–6). species like spikedace and loach 1986, pp. 32–34). Four years later, the Pilger et al. (2010, pp. 311–312) minnow. While no direct studies have relative abundance of nonnative fishes studied the food webs in six reaches of been completed on predation by green increased to 54.7 percent at these sites the Gila River. Their study attempted to sunfish on spikedace or loach minnow, (Propst et al. 1986, pp. 32–36). The quantify resource overlap among native they are a known predator of fish that percentage of nonnative fishes increased and nonnative fishes. Their study size, and they occur within areas by almost 12 percent on the Tularosa determined that nonnative fishes occupied by these species. River between 1988 and 2003, while on consumed a greater diversity of Declines of native fish species appear the East Fork Gila River, nonnative invertebrates and more fish than native linked to increases in nonnative fish fishes increased to 80.5 percent relative species, and that nonnative fishes species. In 1949, for example, 52 abundance in 2003 (Propst 2005, pp. 6– consumed predacious invertebrates and spikedace were collected at Red Rock on 7, 23–24). Nonnative fishes are also terrestrial invertebrates more frequently the Gila River, while channel catfish considered a management issue in other than native fishes. They found that, on composed only 1.65 percent of the 607 areas including Eagle Creek, the San average, the diets of adult nonnative fish collected. However, in 1977, only 6 Pedro River, West Fork Gila River, and fishes were composed of 25 percent fish, spikedace were located at the same site, to a lesser extent on the Blue River and but that there was high variability and the percentage of channel catfish Aravaipa Creek. among species. Only 6 percent of the had risen to 14.5 percent of 169 fish Generally, when the species diet of channel catfish was fish, while collected. The decline of spikedace and composition of a community shifts in fish made up 84 percent of the diet of the increase of channel catfish is likely favor of nonnative fishes, a decline in flathead catfish. They found that both related (Anderson 1978, pp. 2, 13, 50– spikedace or loach minnow abundance juvenile and adult nonnative species 51). Similarly, interactions between occurs (Olden and Poff 2005, pp. 79– could pose a predation threat to native native and nonnative fishes were 86). Propst et al. (1986, p. 38) noted this fishes. observed in the upper reaches of the during studies of the Gila River between As noted below under Factor E, East Fork of the Gila River. Prior to the 1960 and 1980. While native species, nonnative fishes also compete for 1983 and 1984 floods in the Gila River including spikedace, dominated the resources with native fishes. While system, native fish were limited, with study area initially, red shiner, fathead nonnative fishes are preying on native spikedace being rare or absent, while minnow, and channel catfish were more fishes, small-bodied nonnative fishes nonnative channel catfish and prevalent following 1980. Propst et al. are also potentially affecting native smallmouth bass were moderately (1986, pp. 83–86) noted that drought fishes through competition (discussed common. After the 1983 flooding, adult and diversions for irrigation first further under Factor E), so that native nonnative predators were generally brought a decline in habitat quality, fishes are impacted by both competition absent, and spikedace were collected in followed by the establishment of and predation. Pilger et al. (2010, p.

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312) note that removal and preclusion of 1982, p. 46). It has been found on desert and Bonita Creek (Robinson, 2011b, nonnative predators and competitors and Sonoran suckers, as well as pers. comm.). may be necessary for conservation of roundtail chub (Robinson et al. 1998, p. Black grub, also called black spot, native fishes in the upper Gila River in 603). This parasite becomes embedded (Neascus spp.) is a parasitic larval fluke order to mitigate the effects they have under the skin and within the gill that appears as black spots on the skin, on native species. Rinne and Miller tissues of infected fish. When Ich tail base, fins, and musculature of a fish. (2006, pp. 91, 95) note that, in the upper matures, it leaves the fish, causing fluid As with yellow grub, adult black grub Verde River, native fishes have declined loss, physiological stress, and sites that trematodes live in a bird’s mouth and precipitously since the mid-1990s. They are susceptible to infection by other produce eggs, which are swallowed conclude that there are declining trends pathogens. If Ich is present in large unharmed and released into the water in of native fish abundances in the upper enough numbers, it can also impact the bird’s feces. Each stage of their life Gila River, and that the coexistence of respiration because of damaged gill cycle is named. Eggs mature in the native and nonnative fishes there may tissue. There are recorded spikedace water releasing miracidia, which infect indicate that the threshold has not been mortalities in captivity due to Ich. mollusks as a first intermediate host, reached, but may be imminent. Anchor worm (Lernaea cyprinacea), and continue to grow, becoming redia. Disease an external parasite, is unusual in that They then migrate into the tissues of a it has little host specificity, infecting a second intermediate host, which is Various parasites may affect wide range of fishes and amphibians. typically a fish. At this stage, they are spikedace and loach minnow. Asian Infection by this parasite has been termed ‘‘cercaria.’’ When the cercaria tapeworm (Bothriocephalus known to kill large numbers of fish due penetrates and migrates into the tissues acheilognathi) was introduced into the to tissue damage and secondary of a fish, it causes damage and possibly United States with imported grass carp infection of the attachment site hemorrhaging. It then becomes (Ctenopharyngodon idella) in the early (Hoffnagle and Cole 1999, p. 24). encapsulated by host tissue, and 1970s. It has since become well Presence of this parasite in the Gila established in areas throughout the melanophores, or pigmented cells, River basin is a threat to spikedace, southwestern United States. The surround the outer layers, resulting in loach minnow, and other native fishes. definitive host in the life cycle of Asian the darker color, which appears as a In July 1992, the BLM found anchor tapeworm is a cyprinid fish (carp or black spot. The damage caused by one worms in Bonita Creek. They have also minnow), and therefore it is a potential cercaria is negligible, but in greater threat to spikedace and loach minnow, been documented in Aravaipa Creek numbers they may kill a fish (Lane and as well as other native cyprinids in and the Verde River (Robinson et al. Morris 2000, pp. 2–3; Maine Department Arizona. The Asian tapeworm adversely 1998, pp. 599, 603–605). Both spikedace of Inland Fisheries and Wildlife 2002b, affects fish health by impeding the and loach minnow occur in Bonita and p. 1). Black grub are present in the digestion of food as it passes through Aravaipa Creeks. Verde River (Robinson et al. 1998, p. the digestive track. Emaciation and Yellow grub (Clinostomum 603; Bryan and Robinson 2000, p. 21), starvation of the host can occur when marginatum) is a parasitic, larval Silver Creek, Redfield Canyon, and large enough numbers of worms feed off flatworm that appears as yellow spots Fossil Creek (Robinson, 2011b, pers. the fish directly. An indirect effect is on the body and fins of a fish. These comm.), and are prevalent in the San that weakened fish are more susceptible spots contain larvae of worms which are Francisco River in New Mexico (Paroz, to infection by other pathogens. Asian typically introduced by fish-eating birds 2011 pers. comm.). tapeworm invaded the Gila River basin who ingest fish infected with the Summary of Factor C and was found during the Central parasite. Once ingested, the parasites Arizona Project’s fall 1998 monitoring mature and produce eggs in the Both spikedace and loach minnow in the Gila River at Ashurst-Hayden intestines of the bird host. The eggs are have been severely impacted by the Dam. It has also been confirmed from then deposited into water bodies in the predation of nonnative predators. Bonita Creek in 2010 and from Fossil bird waste, where they infect the livers Aquatic nonnative species have been Creek in 2004 and 2010 (U.S. Fish and of aquatic snails. The snail hosts in turn introduced or spread into new areas Wildlife Service National Wild Fish allow the parasites to develop into a through a variety of mechanisms, Health Survey 2004, 2010). This parasite second and third larval form, which including intentional and accidental can infect many species of fish and is then migrates into a fish host. Because releases, sport stocking, aquaculture, carried into new areas along with the intermediate host is a bird, and aquarium releases, and bait-bucket nonnative fishes or native fishes from therefore highly mobile, yellow grub are release. Channel catfish, flathead contaminated areas. easily spread. When yellow grub infect catfish, and smallmouth bass appear to The parasite (Ichthyophthirius a fish they penetrate the skin and be the most prominent predators, multifiliis) (Ich) usually occurs in deep migrate into its tissues, causing damage although other species contribute to the waters with low flow and is a potential and potentially hemorrhaging. Damage decline of spikedace and loach minnow. threat to spikedace and loach minnow. from one yellow grub may be minimal, Spikedace and loach minnow have been Ich has occurred in some Arizona but in greater numbers, yellow grub can replaced by nonnative fishes in several streams, probably encouraged by high kill fish (Maine Department of Inland Arizona streams. In addition to threats temperatures and crowding as a result of Fisheries and Wildlife 2002a, p. 1). from predation, we also conclude that drought. Ich is known to be present in Yellow grub occur in many areas in both spikedace and loach minnow are Aravaipa Creek (Mpoame 1982, pp. 45– Arizona and New Mexico, including reasonably certain to become impacted 47), which is currently occupied by both Aravaipa Creek (Amin 1969, p. 436; U.S. by parasites that have been documented spikedace and loach minnow. This Geological Survey (USGS) 2004, p. 71; in the Gila River basin and that are parasite was observed being transmitted Widmer et al. 2006, p. 756), Oak Creek known to adversely affect or kill fish on the Sonora sucker (Catostomus (Mpoame and Rinne 1983, pp. 400–401), hosts. For these reasons, we find that insignis), although it does not appear to the Salt River (Amin 1969, p. 436; Bryan disease and predation are significant be host-specific and could be and Robinson 2000, p. 19), the Verde threats to the spikedace and loach transmitted by other species (Mpoame River (Bryan and Robinson 2000, p. 19), minnow.

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D. The Inadequacy of Existing A limited amount of scientific considered violations of the Act (50 CFR Regulatory Mechanisms collection occurs under State 17.44(p) for spikedace and 50 CFR permitting, as authorized by the special 17.44() for loach minnow). As a result Because of the complex, indirect, and rule for the two species, but does not of the special rules for spikedace and cumulative nature of many of the threats pose a threat to these species because it loach minnow, the AGFD is issuing to spikedace and loach minnow, is regulated by the States. scientific collecting permits. This existing regulatory mechanisms are authority was granted at 50 CFR Federal Regulations inadequate to address or ameliorate the 17.44(p) for spikedace and 50 CFR threats. Causes of the declining status of Many Federal statutes potentially 17.44(q) for loach minnow. This is these species are a mix of many human afford protection to spikedace and loach confirmed through Arizona Commission activities and natural events, which minnow. A few of these are section 404 Order 40 and New Mexico special makes them difficult to control through of the Clean Water Act (33 U.S.C. 1251 permit (19 New Mexico Administrative regulation. et seq.), Federal Land Policy and Code 33.6.2). State Regulations Management Act (43 U.S.C. 1701–1782), Under section 7 of the Act, Federal National Forest Management Act (16 agencies must insure that any action Spikedace is listed by New Mexico as U.S.C. 1600 et seq.), National they authorize, fund, or carry out is not an endangered species, while loach Environmental Policy Act (NEPA), and likely to jeopardize the continued minnow is listed as threatened (Bison- the Act. However, in practice these existence of any endangered or M 2010). These designations provide the statutes have not been able to provide threatened species or result in the protection of the New Mexico Wildlife sufficient protection to prevent the adverse modification or destruction of Conservation Act. However, the primary downward trend in the populations and designated critical habitat. The Service focus of the New Mexico Wildlife habitat of spikedace and loach minnow promulgated regulations extending take Conservation Act and other State and the upward trend in threats. Section prohibitions under section 9 for legislation is to prevent actual 404 of the Clean Water Act regulates endangered species to threatened destruction or harm to individuals of placement of fill into waters of the species. Prohibited actions under the species. Since most of the threats to United States, including most of section 9 include, but are not limited to, these species come from actions that do spikedace and loach minnow habitat. take (i.e., harass, harm, pursue, hunt, not directly kill individuals, but However, many actions highly shoot, wound, kill, trap, capture, or indirectly result in their death from the detrimental to spikedace and loach collect, or attempt to engage in such lack of some habitat requirement or an minnow and their habitats, such as activity). Critical habitat designation inability to reproduce, the State gravel mining and irrigation diversion alerts the public that the areas protection is only partially effective for structure construction and maintenance, designated as critical habitat are this species. Similarly, spikedace and are often exempted from the Clean important for the future recovery of the loach minnow are listed as species of Water Act. Other detrimental actions, species, as well as invoking the review concern by the State of Arizona. The such as bank stabilization and road of these areas under section 7 of the Act listing under the State of Arizona law crossings, are covered under nationwide with regard to any possible Federal does not provide protection to the permits that receive little or no Service actions in that area. species or their habitats; however, review. A lack of thorough, site-specific Section 10 of the Act allows for the AGFD regulations prohibit possession of analyses for projects can allow permitting of take in the course of these species (AGFD 2006, Appendix substantial adverse effects to spikedace, otherwise lawful activities by private 10, p. 4). loach minnow, and their habitat. entities, and may involve habitat The Federal Land Policy and conservation plans which can As discussed above under Factor C, Management Act and National Forest ultimately benefit spikedace or loach the introduction and spread of Management Act provide mechanisms minnow. The habitat conservation plan nonnative aquatic species is a major for protection and enhancement of (HCP) prepared by Salt River Project threat to spikedace and loach minnow. spikedace, loach minnow, and their (SRP) is expected to benefit spikedace Neither the States of New Mexico and habitat on Federal lands. The USFS and and loach minnow in the Verde River. Arizona nor the Federal Government the BLM have made significant progress Spikedace and loach minnow have has adequate regulatory mechanisms to on some stream enhancements (Fossil been protected under the Act since their address this issue. Programs to Creek, Blue River, Hot Springs Canyon, listing in 1986. While the Act provides introduce, augment, spread, or permit and Bonita Creek). However, despite the prohibitions against take, and allows for such actions for nonnative sport, bait, protection and enhancement the development of HCPs, the species aquarium, and aquaculture species mechanisms in these laws, competing have continued to decline. To date, continue. Regulation of these activities multiple uses, limited funding and section 7 consultation has not been an does not adequately address the spread staffing have resulted in few effective tool in addressing this decline. of nonnative species, as many measureable on-the-ground successes, This is due in part to the fact that some introductions are conducted through and the status of these species has causes of the decline, such as incidental or unregulated actions. continued to decline. competition and predation with New Mexico water law does not Spikedace and loach minnow are nonnative aquatic species, decreases in include provisions for instream water currently listed as threatened under the surface flows due to drought, and rights to protect fish and wildlife and Act and therefore are afforded the habitat losses caused by wildfires are their habitat. Arizona water law does protections of the Act. Special rules not covered by the Act. In addition, recognize such provisions; however, were promulgated for spikedace and water diversions are often because this change is relatively recent, loach minnow in 1986, which prohibit ‘‘grandfathered’’ into existing law and instream water rights have low priority taking of the species, except under are therefore not subject to section 7. and are often overcome by more senior certain circumstances in accordance diversion rights. Indirectly, Arizona with applicable State fish and wildlife Summary of Factor D State law also allows surface water conservation laws and regulations. Despite the prohibitions against take, depletion by groundwater pumping. Violations of the special rules are which have been in place since the

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species were listed in 1986, spikedace basin include channel catfish, flathead exploitive competition. Interference and loach minnow have continued to catfish, red shiner, fathead minnow, competition occurs when individuals decline. While section 7 consultation green sunfish, largemouth bass, directly affect others, such as by may be effective in addressing impacts smallmouth bass, rainbow trout, fighting, producing toxins, or preying from Federal actions such as a road western mosquitofish, carp, warmouth upon them (Schoener 1983, p. 257). construction project or implementation (Lepomis gulosus), bluegill, yellow Exploitive competition occurs when of an allotment management plan, they bullhead, black bullhead, and goldfish individuals affect others indirectly, such are not effective at minimizing losses to (Miller 1961, pp. 373–394; Nico and as through use of common resources the species from competition and Fuller 1999, pp. 16, 21–24; Clark 2001, (Douglas et al. 1994, p. 14). Exploitive predation with nonnative species, the p. 1; AGFD 2004, Bahm and Robinson competition in the form of predation is impacts of drought or climate change, or 2009b, p. 3). discussed above under Factor C. the effects of wildfires. Review under The aquatic ecosystem of the central Interference competition occurs with the CWA is lacking, and the Federal Gila River basin has relatively small species such as red shiner. Nonnative Land Policy and Management Act and streams with warm water and low red shiners compete with spikedace for National Forest Management Act are not gradients, and many of the native suitable habitats, as the two species currently having a positive effect on the aquatic species are small. In these areas, occupy essentially the same habitat species. In summary, existing regulatory small, nonnative fish species pose a types. The red shiner has an inverse mechanisms that prohibit taking of the threat to spikedace and loach minnow distribution pattern in Arizona to two species have been in place for (Deacon et al. 1964, pp. 385, 388). spikedace (Minckley 1973, p. 138). decades, however, these regulations are Examples of this are the impacts of Where the two species occur together, not adequate to address the significant mosquitofish and red shiner, which may there is evidence of displacement of habitat effects, particularly water compete with, or predate upon, native spikedace to less suitable habitats than diversion and the distribution and fish in the Gila River basin (Meffe 1985, previously occupied (Marsh et al. 1989, abundance of nonnative fishes, affecting pp. 173, 177–185; Douglas et al. 1994, pp. 67, 107). As a result, if red shiners spikedace and loach minnow. Because pp. 1, 13–17). However, negative are present, suitable habitat for existing regulatory mechanisms do not interactions also occur between small spikedace is reduced. In addition, the provide adequate protection for these native and large nonnative individuals. introduction of red shiner and the species or their habitats throughout On the East and Middle Forks of the decline of spikedace have occurred their ranges, we conclude the Gila River, where large nonnative simultaneously (Minckley and Deacon inadequacy of existing regulatory predators were comparatively common, 1968, pp. 1427–1428; Douglas et al. mechanisms is a significant threat to the small native species were uncommon or 1994, pp. 13, 16–17). The red shiner was spikedace and loach minnow. absent. Conversely, on the West Fork introduced in the mainstem Colorado Gila River, when large nonnative River in the 1950s, spreading upstream E. Other Natural or Manmade Factors predators were rare, most small-bodied to south-central Arizona by 1963, and Affecting the Species’ Continued and young of large-bodied native fishes by the late 1970s eastward into New Existence persisted (Stefferud et al. 2011, pp. Mexico. Spikedace disappeared at the Nonnative Fishes 1409–1411). same time and in the same progressively For spikedace and loach minnow, upstream direction, likely as a result of As described under Factor C above, every habitat that has not been interactions with red shiner and in nonnative fishes pose a significant renovated or protected by barriers has at response to impacts of various water threat to Gila River basin native fishes, least six nonnative fish species present, developments (Minckley and Deacon including spikedace and loach minnow at varying levels of occupation. In (Minckley 1985, pp. 1, 68; Williams et addition to nonnative fishes, parasites 1968, pp. 1427–1428; Minckley and al. 1985, pp. 3, 17–20; Minckley and have been introduced incidentally with Deacon 1991, pp. 7, 15; Douglas et al. Deacon 1991, pp. 15–17). Competition nonnative species and may be 1994, pp. 13–17). with nonnative fish species is deleterious to spikedace and loach One study focused on potential considered a primary threat to minnow populations. Nonnative impacts of red shiner on spikedace in spikedace and loach minnow. See crayfish (Orconectes virilis) have three areas: (1) Portions of the Gila River Factor C for the discussion of predation invaded occupied spikedace and loach and Aravaipa Creek having only by nonnative fish species. minnow habitats (Taylor et al. 1996, p. spikedace; (2) a portion of the Verde As with many fish in the West, 31; Robinson and Crowder 2009, p. 3; River where spikedace and red shiner spikedace and loach minnow lacked Robinson et al. 2009b, p. 4; USGS 2009, co-occurred for three decades; and (3) a exposure to a wider range of species p. 1). Crayfish are known to eat fish portion of the Gila River where red over evolutionary time, so that they eggs, especially those bound to the shiner invaded areas and where seem to lack the competitive abilities substrate (Dorn and Mittlebach 2004, p. spikedace have never been recorded. and predator defenses developed by 2135), as is the case for spikedace and The study indicated that, for reaches fishes from regions where more species loach minnow. Additionally, crayfish where only spikedace were present, are present (Moyle 1986, pp. 28–31; cause decreases in macroinvertebrates, spikedace displayed a preference for Douglas et al. 1994, pp. 9–10). As a amphibians, and fishes (Hanson et al. slower currents and smaller particles in result, the native western fish fauna is 1990, p. 69; Lodge et al. 2000, p. 11). the substrate than were generally significantly impacted by interactions Several of the nonnative species now in available throughout the Gila River and with nonnative species. The spikedace and loach minnow habitats Aravaipa Creek systems. Where red introduction of more aggressive and arrived there since the species were shiner occur in the Verde River, the competitive nonnative fish has led to listed, such as red shiner in Aravaipa study showed that red shiner occupied significant losses of spikedace and loach Creek (Stefferud and Reinthal 2005, p. waters that were generally slower with minnow (Douglas et al. 1994, pp. 14– 51) and Asian tapeworm in the middle smaller particle sizes in the substrate 17). Nonnative fishes known to occur Gila River. than were, on average, available in the within the historical range of spikedace Competition can be classified as system. The study concludes that in and loach minnow in the Gila River either interference competition or areas where spikedace co-occurrs with

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red shiner, red shiner remain in the to help control mosquitoes. Because of and consequently warmer water preferred habitat, while spikedace move their aggressive and predatory behavior, temperatures beyond the species’ into currents swifter than typically mosquitofish may negatively affect tolerance limits, and more crowded occupied (Douglas et al. 1994, pp. 14– populations of small fishes through habitats with higher levels of predation 16). The areas with swifter currents are predation and competition (Courtenay and competition. In other areas, drought likely less suitable for spikedace, as and Meffe 1989, pp. 320–324). reduces flooding that would normally evidenced by their nonuse until such Introduced mosquitofish have been rejuvenate habitat and tend to reduce competition occurs. Red shiners are particularly destructive to native fish populations of some nonnative species, known to occur in the Verde River communities in the American West, which are less adapted to the large (Minckley 1993, p. 10; Jahrke 1999, pp. where they have contributed to the floods of southwestern streams 2–7; Bahm and Robinson 2009b, pp. 3– elimination or decline of populations of (Minckley and Meffe 1987, pp. 94, 104; 5), Aravaipa Creek (Reinthal, 2011, pp. federally endangered and threatened Stefferud and Rinne 1996a, p. 80). The 1–2), Blue River (ASU 2004, multiple species, such as the Gila topminnow combined effects of drought with reports; ASU 2005, multiple reports), (Poeciliopsis occidentalis occidentalis) ongoing habitat loss and alteration; and Gila River (Minckley 1973, pp. 136– (Courtenay and Meffe 1989, pp. 323– increased predation, competition, and 137; Marsh et al. 1989, pp. 12–13; 324). Pilger et al. (2010, p. 312) found disease from nonnative species; and the Propst et al. 2009, pp. 14–18). that the generalist feeding strategy of general loss of resiliency in highly As with spikedace, exploitive smallbodied nonnative fishes could altered aquatic ecosystems have had and competition also appears to occur further affect native fishes through continue to have negative consequences between red shiner and loach minnow. competition, particularly if there is a for spikedace and loach minnow Red shiners occur in all places known high degree of overlap in habitat use. In populations. to be formerly occupied by loach their study on the upper Gila River, they minnow, and are absent or rare in places determined that the diets of nonnative, Genetics where loach minnow persists. Because small-bodied fishes and all age groups Each remaining population of of this, red shiner has often been of native fishes overlapped, so that the spikedace is genetically distinct. implicated in the decline of loach presence of both juvenile and adult Genetic distinctiveness in the Verde minnow. Loach minnow habitat is nonnative species could pose a River and Gila River fishes indicates markedly different than that of red competitive threat to native fishes that these populations have been shiner, so interaction between the two spikedace and loach minnow (Pilger et historically isolated (Tibbets and species is unlikely to cause shifts in al. 2010, p. 311). Western mosquitofish Dowling 1996, (pp. 1285–1291); habitat use by loach minnow (Marsh et represent an additional challenge for Anderson and Hendrickson 1994, pp. al. 1989, p. 39). Instead, studies indicate spikedace and loach minnow 148, 150–154). The center of the that red shiner move into voids left management, in that they are harder to historical distribution for spikedace is when native fishes such as loach effectively remove during stream permanently altered, and the remaining minnow are extirpated due to habitat renovation efforts. In the desert populations are isolated and represent degradation in the area (Bestgen and Southwest, the habitat conditions are so the fringes of the formerly occupied Propst 1986, p. 209). Should habitat limited that native fish reintroductions range. Isolation of these populations has conditions improve and the habitat once can occur only in those areas where the important ramifications for the overall again become suitable for loach competition and predation of nonnative survival of the species. Loss of any minnow, the presence of red shiner may fishes can be physically precluded, such population may be permanent, as there preclude occupancy of loach minnow, as above a fish barrier. is little ability to repopulate isolated although the specific mechanism of this areas, due largely to habitat alterations interaction is not fully understood. Prior Drought in areas between remaining populations to 1960, the Glenwood-Pleasanton reach The National Integrated Drought of the San Francisco River supported a Information System (2011) classifies (Propst et al. 1986, pp. 38, 86). No native fish assemblage of eight different drought in increasing severity categories genetic exchange is possible between species. Post-1960, four of these species from abnormally dry, to moderate, the remaining populations of spikedace became uncommon, and ultimately severe, extreme, and, most severe, without human assistance. In addition, three of them were extirpated. In studies exceptional. The southwestern United because genetic variation is important to completed between 1961 and 1980, it States is currently experiencing drought the species’ fitness and adaptive was determined that loach minnow was conditions classified as moderate to capability, losses of genetic variation less common than it had been, while the exceptional. Drought conditions are represent a threat to the species (Meffe diversity of the nonnative fish reported as abnormally dry to moderate and Carroll 1997, pp. 162–172). community had increased in for the Verde River, with the remainder Spikedace in the upper Verde River comparison to the pre-1960 period. of the critical habitat streams in severe are genetically different than those that Following 1980, red shiner, fathead to extreme in Arizona. Critical habitat were translocated to Fossil Creek; minnow, and channel catfish were all areas in New Mexico fall within the however, there is a minimal opportunity regularly collected. Drought and severe to extreme drought categories for the two populations to interbreed diversions for irrigation resulted in a (National Integrated Drought due to the length of the river between decline in habitat quality, with canyon Information System 2011). the two occupied areas. While the Verde reaches retaining most habitat While spikedace and loach minnow River supports many of the habitat components for native species. have survived many droughts in their features for spikedace, it currently However, establishment of nonnative evolutionary histories, drought may supports a high number of nonnative fishes in the canyon reaches has have more of an impact on the species species that compete with, and prey on, reduced the utility of these areas for due to already reduced habitat spikedace. We anticipate that, until native species (Propst et al. 1988, pp. suitability from other effects, as extensive management takes place, 51–56). described above. In some areas of spikedace in the two areas will remain Western mosquitofish were spikedace and loach minnow habitat, isolated. The spikedace translocation in introduced outside of their native range drought results in lower streamflow, Fossil Creek has been in place for

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approximately 4 years. It is not known Recent work completed by Propst et resources are already limited, and these if that translocation effort will succeed. al. (2008) indicates that individual resources are likely to become more As with spikedace, each remaining factors, such as the presence of limited due to water developments and population of loach minnow is nonnative fishes or existing flow drought. Increased water demands are genetically distinct. Genetic subdivision regimes may have impacts on native fish likely to further limit the areas where into three geographic regions indicates species, but it is likely that the spikedace or loach minnow can persist. that gene flow has been low but not interaction of these factors causes a We therefore conclude that the historically absent (Tibbets 1993, pp. decline in native fish species. In studies spikedace and loach minnow are 22–24, 33). The center of the loach on the upper Gila River drainage in New threatened by other natural or manmade minnow’s historical distribution is Mexico, Propst et al. (2008) determined factors. permanently gone, and the remaining that flow regime was a primary factor in Reclassification Determination populations are isolated and represent shaping fish assemblages, with the the fringes of the formerly occupied greatest densities of native fishes As required by the Act, we considered range. Isolation of these populations has occurring in those years with higher the five factors in assessing whether the important ramifications for the overall stream discharges. However, they also spikedace and loach minnow are survival of the species. Loss of any found that pressure from competition endangered or threatened throughout all population may be permanent, as there and predation with nonnative fishes or a significant portion of their range. is little ability to repopulate isolated also affected fish assemblages. They We carefully assessed the best scientific areas, due largely to habitat alterations concluded that there was a negative and commercial information available in areas between remaining populations association between nonnatives and regarding reclassification of the (Propst et al. 1988, p. 65). No genetic native fishes, which indicated that there spikedace and the loach minnow from exchange is likely between the is a complex relationship between threatened to endangered. There are remaining populations of loach minnow naturally variable flows and nonnative many threats to both species, including without human assistance. As noted for species, and that natural flow alone was habitat loss and modifications (Factor spikedace, genetic variation is important not enough to conserve native fish A) caused by historical and ongoing to the species’ fitness and adaptive species (Propst et al. 2008, p. 1246). The land uses such as water diversion and capability, and losses of genetic way in which these factors interact pumping, livestock grazing, and road variation represent a threat to the varied from stream to stream in the construction. However, competition species (Meffe and Carroll 1997, pp. study. with, or predation by, nonnative 162–172). Propst et al. (2008) also note the species, such as channel and flathead importance of connectivity, stating that catfish, green sunfish, and red shiner, is Flow Regime, Nonnative Fishes, and it is critical to ensuring the long-term likely the largest remaining threat to the Connectivity persistence of native fishes. They note species (Factors C and E). In addition, The competitive effects of nonnative that loach minnow, while still present recent research indicates that the fish species are often exacerbated by throughout much of its historical range, combination of altered flow regimes and changes in flow regimes or declines in has been apparently extirpated from nonnative fishes together are causing habitat conditions associated with water four of six sites in 10 years or less, and declines in native fishes. Existing developments, as discussed above, and that loss of connectivity among regulatory mechanisms (Factor D) have should be considered against the populations has reduced the likelihood not proven adequate to halt the decline backdrop of historical habitat that many will recover naturally, even if of spikedace or loach minnow or habitat degradation that has occurred over time causes for elimination are removed. losses since the time of their listing as (Minckley and Meffe 1987, pp. 94, 103; They conclude that ‘‘It is almost certain threatened species. In addition, the Rinne 1991, p. 12). Stefferud and Rinne similar, but undocumented, losses have warmer, drier, drought-like conditions (1996b, p. 25) note that a long history occurred throughout the species range, predicted to occur due to climate of water development and diversion and its status is much more fragile than change (Factor A) will further reduce coupled with nonnative fish presumed’’ (Propst et al. 2008, p. 1251). available resources for spikedace and introductions has resulted in few However, where flows remain suitable, loach minnow. streams in Arizona retaining their native and connectivity is maintained, there is In 1991, we completed a 5-year fish communities. Using the Gila River the inherent risk of exposure to review for spikedace and loach minnow as an example, Propst et al. (1988, p. 67) nonnative species traveling from one in which we determined that the note that natural (e.g., drought) and area to another. They conclude that species’ status was very precarious and human-induced (e.g., flow level retention of natural hydrologic regimes that a change in status from threatened reductions through irrigation diversion) and preclusion of nonnative predators to endangered was warranted. Since that factors combined to reduce loach and competitors are equally important time, although some recovery actions minnow abundance in the Gila River. (Propst et al. 2008, p. 1251). have occurred, the majority of the areas They note that where canyon habitat historically occupied by spikedace and would normally continue to contain Summary of Factor E loach minnow have experienced a shift surface flows and suitable habitat for The reduced distribution and from a predominance of native fishes to loach minnow, the establishment of decreasing numbers of spikedace and a predominance of nonnative fishes. nonnative fishes in canyon reaches has loach minnow make the two species The low numbers of spikedace and reduced their suitability as habitat for susceptible to natural environmental loach minnow, their isolation in the minnow. Minckley and Douglas variability, including climate conditions tributary waters, drought, ongoing water (1991, pp. 7–17) concluded that, for such as drought. However, research demands, and other threats leads us to fishes native to the Southwest, the indicates that it is the interaction of conclude the species are now in danger combination of changes in stream individual factors such as nonnative of extinction throughout their ranges. discharge patterns and nonnative fish fishes and altered flow regimes that is We determined in 1994 that introductions has reduced the range and causing a decline of native fish species. reclassifying spikedace and loach numbers of all native species of fish, Native fishes are unable to maintain a minnow to endangered status was and has led to extinction of some. competitive edge in areas where warranted but precluded (59 FR 35303,

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July 11, 1994), and restated this North Fork East Fork Black River as well requiring millions of dollars for barrier conclusion on January 8, 2001 (66 FR (ASU 2002). construction, and extensive time and 1295). We reanalyzed the determination Two of the primary threats to costs for personnel involved in the each year in our Candidate Notice of spikedace and loach minnow are renovation. Sufficient time has not yet Review, and determined that nonnative fishes and loss of water due elapsed to determine the success of reclassification to endangered is to diversions, pumping, drought, or these projects. Fossil Creek is showing warranted, in the Candidate Notice of other causes, as detailed above. early signs of success for spikedace Review published on November 9, 2009 Recently, Propst et al. (2008) indicated (Robinson 2011a, p. 1), but the (74 FR 57804). Spikedace and loach that individual factors, such as the downstream barrier has been breached minnow were not addressed in the presence of nonnative fishes or existing by nonnatives on one occasion since the Candidate Notice of Review published flow regimes may have impacts on project began in 2007. Bonita Creek was in 2011, as this reclassification native fish species, but it is likely that reinvaded, despite its barrier. Redfield determination was funded in FY 2010. the interaction of these factors may Canyon currently has inadequate flows Candidate assessments are not reviewed cause a decline in native fish species. to support either species. Regardless of on an annual basis once they are Past events (both legal and alleged the success of these efforts, Hot Springs funded. illegal) resulted in the establishment of Canyon and Redfield Canyon flow into Both species have been reduced in at least 60 nonnative fish species, at the dry portions of the San Pedro River range and numbers since the time of least three nonnative amphibians so are not connected to any other listing through either localized (American bullfrog, Rio Grande leopard populations of spikedace or loach extirpations, reduced distribution frog, American tiger salamander), at minnow. Fossil Creek does flow into the within occupied drainages, or least four invertebrates (two species of active channel of the Verde River, but reductions in numbers within a given crayfish, Asiatic clam, and New Zealand the Verde River at that confluence is drainage. Spikedace and loach minnow mud snail), and several diseases or currently dominated by nonnatives. are both extirpated from the Salt and parasites that affect native fish or Bonita Creek flows into the Gila River, San Pedro rivers. Spikedace are amphibians in areas across Arizona (See which is also dominated by nonnatives additionally extirpated from the San Service 2002a for additional and ultimately becomes dewatered as Francisco River, while loach minnow information). The impacts of nonnative well. Therefore, the recovery actions are extirpated from the Verde River. fishes on spikedace and loach minnow completed to date, while allowing the In terms of reduced distribution since are detailed above. Nonnative aquatic species to persist, have limited ability to listing within occupied drainages, species are known to occur in varying help recover the species at this time. spikedace currently have a much levels in every stream occupied by An additional complication in reduced distribution in the Verde River, spikedace or loach minnow, with the recovery of the species is the lack of where the known locations at listing exception of streams in the early stages available suitable habitat. The species occurred over approximately 25 percent of renovation and/or reintroduction are both currently found in isolated of the previously occupied area. Loach projects, such as Hot Springs Canyon. areas, with little opportunity for minnow are reduced in distribution in Nonnative species are considered a expansion or for genetic interchange. the San Francisco and Tularosa rivers, serious cause of the decline of the two The Verde River feeds into two occurring in a portion up and species in all streams except for reservoirs, effectively isolating it from downstream of the Whitewater Creek Aravaipa Creek and the mainstem Gila the Salt River. Those portions of the Salt confluence and again farther upstream River in New Mexico; however, River that were historically occupied by of the Tularosa River. Spikedace and nonnatives are present in these streams the species now have four dams and loach minnow are both reduced in as well. reservoirs. The San Pedro River is distribution in the East and Middle Alteration or reductions of stream dewatered in some areas, especially Forks of the Gila River, occurring closer flow is a concern in many areas as well, downstream of known historical to the confluence with the Gila River, including the Verde River, Salt River, distribution. Aravaipa Creek, while but no longer extending as far upstream San Pedro River, Gila River, Eagle supporting the largest population of the as in the past. The strongholds for both Creek, and San Francisco River. In these two species in Arizona, ends at a dry species are Aravaipa Creek in Arizona areas, diversion structures may cause stretch of the San Pedro River. Those and the Gila River mainstem in New stream levels to drop or become portions of Eagle Creek occupied by the Mexico, but more recent records dewatered, especially during drought two species occur above a diversion indicate at least small reductions in the and during the drier months. Future dam, downstream of which nonnative up and downstream extent of their water needs in the arid southwest, levels are high. Eagle Creek then joins distributions in these systems. coupled with the ongoing drought and the Gila River, which is also dominated In addition to extirpations and climate change, are likely to increase the by nonnative fishes. Downstream of the reductions in range, some spikedace and number of dewatered areas, the size of occupied area in the Gila River, which loach minnow populations persist, but the dewatered areas, and the length of supports the largest known populations are at reduced numbers. In the Verde time for which dewatering occurs. of the species, there are water diversions River, spikedace numbers were Additional, pending water development that ultimately result in a dry stream frequently in the hundreds, with a high projects have been identified above. channel as the river travels into Arizona of 407 in 1986, but reduced to double Recovery actions have occurred at Hot from New Mexico. and then single digits in the late 1980s Springs Canyon, Redfield Canyon, In summary, spikedace and loach and 1990s (ASU 2002). While spikedace Fossil Creek, Bonita Creek, and the San minnow previously had a relatively likely still occur in the Verde River, Francisco River in New Mexico, and widespread distribution covering they are at extremely low numbers and have focused on building barriers to portions of Arizona, New Mexico, and on the verge of extirpation. Survey nonnative fishes or using existing northern Mexico. Both species have records indicate a similar situation structures as barriers. In some instances, suffered major reductions in numbers exists for both spikedace and loach chemical and/or mechanical removal of and range over time due to persistent minnow in Eagle Creek. Loach minnow nonnative species has occurred. To date, threats such that spikedace are now are in extremely low numbers in the these projects have been costly, estimated to occur in only 10 percent of

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their former range, while loach minnow reintroduction or translocation of spikedace, 670 Blue River loach occur in 10 to 20 percent of their former spikedace into streams within its minnow, and 3,250 Aravaipa Creek range. Currently, only small, isolated historical range. In 2007, spikedace loach minnow. Plans are under way to populations of these species remain, were translocated into Hot Springs bring in stock from every extant with limited to no opportunities for Canyon, Redfield Canyon, and Fossil population of loach minnow, including interchange between populations or Creek. In 2008, spikedace were those in the San Francisco River, the expansion of existing areas, making the translocated into Bonita Creek in three forks of the Gila River, the upper species more vulnerable to threats Arizona and reintroduced to the San Gila River in New Mexico, and the Eagle including reproductive isolation. The Francisco River in New Mexico. and Black River system in Arizona. two primary threats of nonnative Monitoring has occurred at each of these Bubbling Ponds will serve as a refuge aquatic species competition and sites annually, with annual for some populations, and as a captive predation and alteration or augmentations at Hot Springs Canyon, breeding facility for others, depending diminishment of stream flows are Redfield Canyon, and Fossil Creek in on the status of the population and persistent, and research indicates that subsequent years when fish are availability of translocation sites. the combination of the two is leading to available, up to and including 2011. declines of native species such as Spikedace were augmented in the San In an effort to minimize impacts from spikedace and loach minnow (Propst et Francisco River in 2009, but monitoring nonnative fish interactions, the NMDGF al. 2008). The ongoing drought and and augmentations did not occur in initiated a nonnative removal effort in climate conditions aggravate the loss of 2010 or 2011 due to a lack of adequate the Forks area in 2007, and at Little water in some areas, and future water staffing and resources. Due to a Creek (a tributary to West Fork Gila development projects have been reinvasion by nonnative species, River) in 2010. These efforts are identified. Finally, the opportunities for augmentations are temporarily on hold expected to continue. expansion of the two species’ range are at Bonita Creek. Critical Habitat Designations for limited by dams, reservoirs, dewatering, Several translocation projects for Spikedace and Loach Minnow and nonnative species distribution. loach minnow are also in the planning Based on this information, as well as stages. These projects may occur with or Summary of Changes From Proposed the above review of the best scientific without construction of fish barriers. Rule and commercial information available, Loach minnow may also benefit from we find that both species are currently the Blue River and Spring Creek As noted in our October 4, 2011, in danger of extinction and therefore renovation projects mentioned above. notice of availability (NOA) (76 FR meet the definition of endangered Additional recovery actions include 61330), we used three criteria in the species under the Act. Because we have translocations or reintroduction of loach proposed rule to evaluate if unoccupied determined that these species are minnow into streams within its habitat was essential to the survival and currently on the brink of extinction and historical range. In 2007, translocations recovery of the species. One of the are not in danger of extinction in the of loach minnow occurred at Hot criteria evaluated the potential of a foreseeable future, we have determined Springs Canyon, Redfield Canyon, and stream segment to ‘‘connect to other that the correct status for the species Fossil Creek. Monitoring of these sites occupied areas, which will enhance under the Act is endangered. As a occurs annually, and the sites have been genetic exchange between populations.’’ result, we are reclassifying both augmented annually when fish are After additional review of the stream spikedace and loach minnow from available, up to and including 2011. In segments proposed for critical habitat, threatened species to endangered 2008, loach minnow were translocated we concluded there were no stream species. With this reclassification of into Bonita Creek, Arizona. Monitoring segments that met this criterion, and we spikedace and loach minnow to occurs annually at this site; however, removed it as an element of the ruleset. endangered status, we remove the due to a reinvasion by nonnative We continue to believe that both loach special rules for these species at 50 CFR species, augmentations are temporarily minnow and spikedace conservation 17.44(p) and 17.44(q), respectively. on hold. will require genetic exchange between Special rules apply only to threatened The AGFD and Bureau of Reclamation the remaining populations to allow for species; therefore, as spikedace and continue to fund equipment and staff to genetic variation, which is important for loach minnow are now listed as run the Bubbling Ponds Native Fish species’ fitness and adaptive capability. endangered, these special rules no Research Facility through the Gila River We also acknowledge that areas equally longer apply. Basin Native Fishes Conservation important to the conservation of the Program (formerly known as the Central species, outside of the critical habitat Available Conservation Measures Arizona Project Fund Transfer Program). designations, will be necessary for long- Conservation measures provided to Salt River Project’s habitat conservation term conservation, subject to future on- spikedace and loach minnow under the plan was signed in 2008, and is the-ground recovery actions and 7(a)(1) Act include several reintroduction and expected to benefit both the spikedace opportunities. Based on information we augmentation projects. Some of these and the loach minnow in the Verde received during the comment periods on projects have already begun; others are River watershed. Also in 2008, AGFD the proposed rule, several changes have in the planning stage. Project planning staff managed original source stock and been made to the areas designated as is under way for renovation efforts in their progeny at the Bubbling Ponds critical habitat in this final rule. These Blue River and Spring Creek in Arizona. facility, totaling 740 Gila River changes are summarized in Table 1 Other recovery actions include spikedace, 1,650 Aravaipa Creek below.

TABLE 1—CHANGES IN STREAM SEGMENTS INCLUDED WITHIN THE CRITICAL HABITAT DESIGNATIONS FOR LOACH MINNOW AND SPIKEDACE

Stream From km (mi) To km (mi) Change in km (mi)

San Francisco River * ...... 180.7 (112.3) ...... 203.6 (126.5) ...... Addition of 22.8 (14.2).

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TABLE 1—CHANGES IN STREAM SEGMENTS INCLUDED WITHIN THE CRITICAL HABITAT DESIGNATIONS FOR LOACH MINNOW AND SPIKEDACE—Continued

Stream From km (mi) To km (mi) Change in km (mi)

Bear Creek * ...... 0.0 (0.0) ...... 31.4 (19.5) ...... Addition of 31.4 (19.5). Redfield Canyon ...... 22.5 (14.0) ...... 6.5 (4.0) ...... Reduction of 16.0 (10.0). Hot Springs Canyon ...... 19.0 (11.8) ...... 9.3 (5.8) ...... Reduction of 9.7 (6.0). Fossil Creek ...... 7.5 (4.7) ...... 22.2 km (13.8 mi) ...... Addition of 14.6 (9.1). * This change made for loach minnow only.

San Francisco River. As noticed in the It should be noted that the low Pedro River. In the proposed rule we NOA (76 FR 61330; October 4, 2011), we number of fish does not, in all included Hot Springs Canyon from its are correcting an error made in the likelihood, represent the total number of confluence with Bass Canyon proposed rule by extending that portion fish present, as sampling rarely results downstream for 19.0 km (11.8 mi). In of the San Francisco River designated in capture of all individuals present. the final rule, we are reducing the for loach minnow by 22.8 km (14.2 mi). Regardless, the number of fish present portion of Hot Springs Canyon included The mileage for spikedace remains the in Bear Creek is low. However, Bear within critical habitat to that area from same as was in the proposed rule (75 FR Creek is a tributary to an occupied its confluence with Bass Canyon 66482; October 28, 2010); however, we stream, and is within the historical downstream for approximately 9.3 km had intended to include the same range of the species. Loach minnow are (5.8 mi). mileage for loach minnow as was in the currently much reduced in their overall Fossil Creek. We received several 2007 critical habitat designation as this distribution compared to historical comments and new information area is currently occupied by loach conditions. The threats assessment indicating that the best habitat for the minnow, as this area meets the above outlines current threats, which species in Fossil Creek occurs above the definition of critical habitat for loach are numerous. While reintroduction newly constructed barrier at Township 1 minnow. The total mileage included on projects are under way, the success of 11 ⁄2 North, Range 7 East, section 29. the San Francisco River for loach those efforts is currently limited. The portions of Fossil Creek above the minnow was changed from 180.7 km Streams are not abundant in the desert barrier have been in use as a (112.3 mi) in the revised proposed rule southwest. Because this area provides translocation site for spikedace to 203.6 km (126.5 mi) in this final rule. suitable habitat and is occupied by beginning in 2008. Although there was This change has been incorporated in loach minnow, we conclude that it is limited success with the translocation this final rule. The mileage for essential to the conservation of the initially, surveys in August 2011 spikedace remains the same as in the species. (Crowder, 2011, pers. comm.) located revised proposed rule. Redfield and Hot Springs Canyons. In numerous spikedace within Fossil response to comments received during Creek. While it would be premature to Bear Creek. We noted in the NOA that the second comment period, we have call the translocation a success, the we intended to add portions of Bear reevaluated the extent of each stream persistence of spikedace indicates that it Creek to the designation for loach included within the designations, and is suitable, and this area meets the minnow, based on occupancy of this concluded that they do not meet the definition of critical habitat for area by loach minnow. The NOA noted definition of critical habitat for either spikedace and loach minnow. For this that we were adding 31.4 km (19.5 mi) spikedace or loach minnow. With reason, we are adjusting the area of Bear Creek from its confluence with further review, we have determined included within Fossil Creek to include the Gila River upstream to the that, although connective habitat is the portions upstream of the barrier to confluence with Sycamore and North important, the area previously retained the old Fossil Diversion Dam at Fork Walnut creeks. We consider those as connective habitat (i.e., between the Township 12 North, Range 7 East, portions of Bear Creek included within barrier location and the San Pedro section 14. The area incorporated in this the final designation to have been River) currently connects to dewatered stream segment will increase from 7.5 occupied at listing, as described in the portions of the San Pedro River. We km (4.8 mi) to 22.2 km (13.8 mi). NOA, although records were not known have therefore shortened the overall In total, the areas designated as until 2005 and 2006. These areas meet stretch of each stream to include just critical habitat for both species were the definition of critical habitat for those sections currently supporting reduced as compared to the revised loach minnow. As noted in our NOA, perennial flows. For Redfield Canyon, proposed rule. For spikedace, the area we recognize that portions of this stream the designations changed from 22.5 km included within the designation was are intermittent, but also acknowledge (14.0 mi) in the revised proposed rule to reduced by 155 km (96 mi). For loach that streams with intermittent flows can approximately 6.5 km (4.0 miles) in this minnow, the area included within the function as connective corridors final rule, and include that portion of designation was reduced by 160 km (99 through which the species may move the stream from the confluence with mi). Portions of this are attributable to when the area is wetted. We have Sycamore Canyon downstream to the the changes noted above, and portions reviewed all of the information barrier constructed at Township 11 to changes made under the Exclusions received, and conclude that inclusion of South, Range 19 East, section 36. section. The bulk of the reduced mileage Bear Creek is appropriate at this time. For Hot Springs Canyon, we are can be attributed to exclusions on Eagle We do not anticipate that loach minnow making similar changes. The barrier Creek and the San Pedro River and, to will occupy the lowermost portions of location and the downstream extent of a lesser extent, on the Gila River. the Creek when they are dry, but we perennial flows are approximately one have determined that that area has value mile apart. As with Redfield Canyon, Critical Habitat Background as a connective corridor to the mainstem Hot Springs Canyon ultimately connects Critical habitat is defined in section 3 Gila River during high-flow events. with dewatered portions of the San of the Act as:

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(1) The specific areas within the within the geographical area occupied sources of information as the basis for geographical area occupied by the by the species at the time it was listed recommendations to designate critical species, at the time it is listed in are included in a critical habitat habitat. accordance with the Act, on which are designation if they contain physical or When we are determining which areas found those physical or biological biological features (1) which are should be designated as critical habitat, features essential to the conservation of the our primary source of information is (a) Essential to the conservation of the species and (2) which may require generally the information developed species and special management considerations or during the listing process for the (b) Which may require special protection. For these areas, the critical species. Additional information sources management considerations or habitat designations identify, to the may include the recovery plan for the protection; and extent known using the best scientific species, articles in peer-reviewed (2) Specific areas outside the and commercial data available, those journals, conservation plans developed geographical area occupied by the physical or biological features that are by States and counties, scientific status species at the time it is listed, upon a essential to the conservation of the surveys and studies, biological determination that such areas are species (such as space, food, cover, and assessments, or other unpublished essential for the conservation of the protected habitat). In identifying those materials and expert opinion or species. physical and biological features within personal knowledge. Conservation, as defined under an area, we focus on the principal The location and suitability of habitat section 3 of the Act, means to use and biological or physical constituent changes and species may move from one the use of all methods and procedures elements (PCEs such as roost sites, area to another over time. Climate that are necessary to bring an nesting grounds, seasonal wetlands, change will be a particular challenge for endangered or threatened species to the water quality, tide, soil type) that are biodiversity because the interaction of point at which the measures provided essential to the conservation of the additional stressors associated with pursuant to the Act are no longer species. PCEs are the elements of climate change and current stressors necessary. Such methods and physical or biological features that, may push species beyond their ability to procedures include, but are not limited when laid out in the appropriate survive (Lovejoy 2005, pp. 325–326). to, all activities associated with quantity and spatial arrangement to The synergistic implications of climate scientific resources management such as provide for a species’ life-history change and habitat fragmentation are research, census, law enforcement, processes, are essential to the the most threatening facet of climate habitat acquisition and maintenance, conservation of the species. change for biodiversity (Hannah et al. propagation, live trapping, and Under the second prong of the Act’s 2005, p. 4). Current climate change transplantation, and, in the definition of critical habitat, we can predictions for terrestrial areas in the extraordinary case where population designate critical habitat in areas Northern Hemisphere indicate warmer pressures within a given ecosystem outside the geographical area occupied air temperatures, more intense cannot be otherwise relieved, may by the species at the time it is listed, precipitation events, and increased include regulated taking. upon a determination that such areas summer continental drying (Field et al. Critical habitat receives protection are essential for the conservation of the 1999, pp. 1–3; Hayhoe et al. 2004, p. under section 7 of the Act through the species. For example, an area currently 12422; Cayan et al. 2005, p. 6; IPCC requirement that Federal agencies occupied by the species but that was not 2007b, p. 1181). Climate change may insure, in consultation with the Service, occupied at the time of listing may be lead to increased frequency and that any action they authorize, fund, or essential to the conservation of the duration of severe storms and droughts carry out is not likely to result in the species and may be included in the (Golladay et al. 2004, p. 504; destruction or adverse modification of critical habitat designation. We McLaughlin et al. 2002, p. 6074; Cook critical habitat. The designation of designate critical habitat in areas et al. 2004, p. 1015. Generally, the critical habitat does not affect land outside the geographical area occupied outlook presented for the Southwest ownership or establish a refuge, by a species only when a designation predicts warmer, drier, drought-like wilderness, reserve, preserve, or other limited to its range would be inadequate conditions (Seager et al. 2007, p. 1181; conservation area. Such designation to ensure the conservation of the Hoerling and Eischeid 2007, p. 19), and does not allow the government or public species. a decline in water resources with or to access private lands. Such Section 4 of the Act requires that we without climate change will be a designation does not require designate critical habitat on the basis of significant factor in the compromised implementation of restoration, recovery, the best scientific and commercial data watersheds of the desert southwest. or enhancement measures by non- available. Further, our Policy on Habitat is dynamic, or frequently Federal landowners. Where a landowner Information Standards Under the changing, and species may move from seeks or requests Federal agency Endangered Species Act (published in one area to another over time. We funding or authorization for an action the Federal Register on July 1, 1994 (59 recognize that critical habitat designated that may affect a listed species or FR 34271)), the Information Quality Act at a particular point in time may not critical habitat, the consultation (section 515 of the Treasury and General include all of the habitat areas that we requirements of section 7(a)(2) of the Government Appropriations Act for may later determine are necessary for Act would apply, but even in the event Fiscal Year 2001 (Pub. L. 106–554; H.R. the recovery of the species. For these of a destruction or adverse modification 5658)), and our associated Information reasons, a critical habitat designation finding, the obligation of the Federal Quality Guidelines, provide criteria, does not signal that habitat outside the action agency and the landowner is not establish procedures, and provide designated area is unimportant or may to restore or recover the species, but to guidance to ensure that our decisions not be required for recovery of the implement reasonable and prudent are based on the best scientific data species. Areas that are important to the alternatives to avoid destruction or available. They require our biologists, to conservation of the species, both inside adverse modification of critical habitat. the extent consistent with the Act and and outside the critical habitat Under the first prong of the Act’s with the use of the best scientific data designations, will continue to be subject definition of critical habitat, areas available, to use primary and original to: (1) Conservation actions

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implemented under section 7(a)(1) of 1997, p. 101). This means that 51 Because areas determined to be the Act, (2) regulatory protections percent of the fish present may not be occupied after 1986 are or were afforded by the requirement in section captured. It should be noted that various connected to occupied areas, the survey 7(a)(2) of the Act for Federal agencies to factors can affect seining efficiency, and efforts for the species have been less insure their actions are not likely to that most surveys involve more than one than thorough, and because both species jeopardize the continued existence of seine haul. However, if a species is are difficult to detect in low numbers, any endangered or threatened species, present in low numbers, as is common we anticipate that, although occupancy and (3) the prohibitions of section 9 of for spikedace and loach minnow, the was not determined in some areas until the Act if actions occurring in these likelihood of catching them at the low post-1986, the species were likely areas may affect the species. Federally capture efficiencies associated with present at listing in 1986 in these areas, funded or permitted projects affecting seining is low. Loach minnow are likely but not discovered until after listing. listed species outside their designated to be more difficult to detect due to their Given that spikedace and loach critical habitat areas may still result in having a reduced gas bladder. They are minnow are small-bodied fish that can jeopardy findings in some cases. These typically restricted to bottom-dwelling be difficult to detect when in low protections and conservation tools will habitat, swimming in only brief numbers, we also consider those areas continue to contribute to recovery of movements, which may further reduce included in this designation to be this species. Similarly, critical habitat the likelihood of its being collected in essential to the conservation of the designations made on the basis of the a seine. We believe a combination of species. best available information at the time of these factors to be responsible for the Physical and Biological Features designation will not control the lack of detections over a 44 year period direction and substance of future on Eagle Creek for loach minnow, as Under the Act and its implementing recovery plans, habitat conservation described above. regulations, we are required to identify plans (HCPs), or other species In some instances, areas were known the physical and biological features conservation planning efforts if new to have been occupied by one or both (PBFs) essential to the conservation of information available at the time of species prior to listing, but were not spikedace and loach minnow in areas these planning efforts calls for a described as occupied in the listing occupied at the time of listing, focusing different outcome. document based on the limited data on the features’ primary constituent available. Subsequent detections after elements (PCEs). We consider PCEs to Occupied Versus Unoccupied Areas listing in 1986 have caused us to be the elements of physical and We include as occupied those areas reconsider the occupancy status of some biological features that, when laid out in that were identified as occupied for streams. For example, we were aware of the appropriate quantity and spatial each species in the original listing one loach minnow record for Dry Blue arrangement to provide for a species’ documents, as well as any additional Creek from 1948 up until listing, but did life-history processes, are essential to areas determined to be occupied after not include Dry Blue Creek as occupied the conservation of the species. We 1986. Our reasoning for including these at listing in 1986 based on this record. outline the appropriate quantities and additional areas (post-1986) is that they Subsequent positive survey records in spatial arrangements of the elements in were likely occupied at the time of the the late 1990s have caused us to the Physical and Biological Features original listings, but had not been reconsider this area. As a result, in this (PBFs) section of the October 28, 2010, detected in surveys. In summary, there designation, we consider Dry Blue Creek proposed rule. For example, spawning are three reasons why a stream segment to be occupied by loach minnow at the substrate would be considered an is considered occupied at the time of time of listing. Similarly, Eagle Creek essential feature, while the specific listing: (1) The stream segment was had one record of loach minnow from composition (sand, gravel, and cobble) occupied in the 1986 listing document; 1950, but was not included as occupied and level of embeddedness are the or (2) the fish were found subsequently at listing in 1986. Loach minnow were elements (PCEs) of that feature. to 1986; and (3) the post-1986 stream subsequently detected again in the In accordance with section 3(5)(A)(i) segment is between two occupied, but 1990s, and it is therefore considered and 4(b)(1)(A) of the Act and regulations separated, stream segments. occupied at the time of listing within at 50 CFR 424.12, in determining which Several factors may influence whether this designation. areas within the geographical area or not spikedace or loach minnow were In every case, areas discovered to be occupied by the species at the time of detected in a given survey, and at what occupied after 1986 are connected, or listing to designate as critical habitat, level. In some instances, survey efforts historically were connected, to occupied we consider the PBFs essential to the may have been minimal or absent for a areas. For example, the Black River conservation of the species and which given area. Once a species is listed, complex was not known to be occupied may require special management awareness of the species is heightened until 1996; however, it is connected, considerations or protection. These for wildlife and land managers, and albeit over long distances, to the White include, but are not limited to: survey efforts are often increased or River, which is currently occupied, and (1) Space for individual and expanded to include areas where they the Salt River, which was historically population growth and for normal might be present. Moreover, spikedace occupied. Dry Blue Creek, described behavior; and loach minnow are small-bodied fish above, is connected to the occupied (2) Food, water, air, light, minerals, or that can be difficult to detect when in Blue River. Eagle Creek is a tributary to other nutritional or physiological low numbers. This may be partially the Gila River, and at one time perennial requirements; responsible for the lack of flows would have connected this (3) Cover or shelter; determinations over a 44-year period on population to those in the upper (4) Sites for breeding, reproduction, or Eagle Creek for loach minnow, for portions of the Gila River in New rearing (or development) of offspring; example. Finally, capture efficiencies Mexico. It is therefore logical to and for seining of fish are low, with some conclude that these areas had been (5) Habitats that are protected from research indicating that capture occupied since listing, although disturbance or are representative of the efficiency of a seine haul averages 49 possibly at low numbers that were historical, geographical, and ecological percent (Dewey and Holland-Bartels difficult to detect. distributions of a species.

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We derive the specific PBFs required out of, the main river channel) (Sublette spikedace. In the study, fish were for spikedace and loach minnow from et al. 1990, p. 138). acclimated to a given temperature, and studies of their habitat, ecology, and life Adult spikedace occur in the widest then temperatures were increased by history as described in the Critical range of flow velocities. They are 1 °C (33.8 °F) per day until test Habitat section of the proposed rule to typically associated with shear zones temperatures were reached. The study designate critical habitat published in (areas within a stream where more determined that no spikedace survived the Federal Register on October 28, rapidly flowing water abuts water exposure of 30 days at 34 or 36 °C (93.2 2010, and in the information presented moving at slower velocities), or 96.8 °F), and that 50 percent below. Additional information can be downstream of sand bars, and in eddies mortality occurred after 30 days at 32.1 found in the final listing rule published or small whirlpools along downstream °C (89.8 °F). In addition, growth rate in the Federal Register on July 1, 1986 margins of riffles (those shallow was slowed at 32 °C (89.6 °F), as well (spikedace; 51 FR 23769) and October portions of the stream with rougher, as at the lower test temperatures of 10 28, 1986 (loach minnow; 51 FR 39468), choppy water). Adult spikedace are and 4 °C (50 and 39.2 °F). Multiple and the recovery plans for each of the found in shallow water over behavioral and physiological changes species (Service 1991a, 1991b). Below, predominantly gravel-dominated were observed, indicating the fish we provide a discussion of the physical substrates (Propst et al. 1986, p. 40; became stressed at 30, 32, and 33 °C (86, and biological features that are essential Rinne 1991, pp. 8–12; Rinne and 89.6 and 91.4 °F). The study concludes to the conservation of the spikedace and Stefferud 1997, p. 21; Rinne and Deacon that temperature tolerance in the wild loach minnows: 2000, p. 106; Rinne 2001, p. 68), but may be lower due to the influence of also over cobble and sand substrates additional stressors, including disease, Space for Individual and Population (Minckley and Marsh 2009, p. 155; predation, competition, or poor water Growth and for Normal Behavior Rinne and Kroeger 1988, p. 3; Sublette quality. Survival of fish in the Spikedace et al. 1990, p. 138). fluctuating temperature trials in the In addition to substrate type, the study likely indicates that exposure to Microhabitats. Habitat occupied by amount of embeddedness (filling in of higher temperatures for short periods spikedace can be broken down into spaces by fine sediments) is also during a day would be less stressful to smaller, specialized habitats called important to spikedace. Spikedace more spikedace. The study concludes that 100 microhabitats. These microhabitats vary commonly occur in areas with low to percent survival of spikedace at 30 °C by stream, by season, and by species’ moderate amounts of fine sediment and (86 °F) in the experiment suggests that life stage. Studies on habitat use have substrate embeddedness, which is little juvenile or adult mortality would been completed on the Gila River in important for the healthy development occur due to thermal stress if peak water New Mexico, and the Verde River and of eggs. Spawning has been observed in temperatures remain at or below that Aravaipa Creek in Arizona. Generally, areas with sand and gravel beds and not level (Bonar et al. 2005, pp. 7–8, 29–30). spikedace occupy moderate to large in areas where fine materials smaller Spikedace occupy streams with low to perennial streams at low elevations over than sand coats the sand or gravel moderate gradients (Propst et al. 1986, substrates (river bottom material) of substrate. Additionally, low to moderate p. 3; Rinne and Stefferud 1997, p. 14; sand, gravel, and cobble (Barber and amounts of fine sediments ensure that Stefferud and Rinne 1996, p. 21; Minckley 1966, p. 31; Propst et al. 1986, eggs remain well-oxygenated and will Sublette et al. 1990, p. 138). Specific pp. 3, 12; Rinne and Kroeger 1988, p. 1). not suffocate due to sediment gradient data are generally lacking, but Occupied streams are typically of low deposition (Propst et al. 1986, p. 40). the gradient of occupied portions of gradient (Barber et al. 1970, p. 10; Rinne Water temperatures of occupied Aravaipa Creek and the Verde River and Kroeger 1988, p. 2; Rinne 1991, pp. spikedace habitat vary with time of year. varied between approximately 0.3 to 8–12; Rinne and Stefferud 1996, p. 17), Water temperatures have been < 1.0 percent (Barber et al. 1970, p. 10; and less than 1 meter (m) (3.28 feet (ft)) recorded at Aravaipa Creek, and on the Rinne and Kroeger 1988, p. 2; Rinne and in depth (Propst et al. 1986, p. 41; Gila River in the Forks area and at the Stefferud 1997, p. 14). Minckley and Marsh 2009, p. 155). Cliff-Gila Valley. Water temperatures of Table 2 compares specific parameters Larval spikedace occur most occupied spikedace habitat vary with of habitat occupied by spikedace at frequently in slow-velocity water near time of year. Summer water various ages as identified through stream margins or along pool edges. temperatures were between 19.3 degrees studies completed to date. Studies on Most larvae are found over sand Celsius (°C) (66.7 degrees Fahrenheit flow velocity in occupied spikedace substrates. Juvenile spikedace tend to be (°F)) (Gila River, Forks Area) and 27 °C habitat have been completed on the Gila found over a greater range of water (80.6 °F) (Aravaipa Creek). Winter River, Aravaipa Creek, and the Verde velocities than larvae, but still in water temperatures ranged between 8.9 River (Barber and Minckley 1966, p. shallow areas. Juvenile spikedace °C (48.0 °F) at Aravaipa Creek and 11.7 321; Minckley 1973, p. 114; Anderson occupy areas with a gravel or sand °C (53.1 °F) in the Cliff-Gila Valley 1978, p. 17; Schreiber 1978, p. 4; Turner substrate, although some have been (Barber and Minckley 1966, p. 316; and Tafanelli 1983, pp. 15–16; Propst et found over cobble substrates as well. Barber et al. 1970, pp. 11, 14; Propst et al. 1986, pp. 39–41; Rinne and Kroeger Larvae and juveniles may occasionally al. 1986, p. 57). 1988, p. 1; Hardy et al. 1990, pp. 19–20, be found in quiet pools or backwaters Studies by the University of Arizona 39; Sublette et al. 1990, p. 138; Rinne (e.g., pools that are connected with, but focused on temperature tolerances of 1991, pp. 9–10; Rinne 1999a, p. 6).

TABLE 2—HABITAT PARAMETERS FOR VARYING LIFE STAGES OF SPIKEDACE

Larvae Juveniles Adults

Flow velocity in centimeters per 8.4 (3.3) ...... 16.8 (6.6) ...... 23.3–70.0 (9.2–27.6). second (inches per second). Depth in centimeters (inches) ...... 3.0–48.8 (1.2–19.2) ...... 3.0–45.7 (1.2–18.0) ...... 6.1–42.7 (2.4–16.8). Gradient (percent) ...... No data ...... No data ...... 0.3 to <1.0.

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TABLE 2—HABITAT PARAMETERS FOR VARYING LIFE STAGES OF SPIKEDACE—Continued

Larvae Juveniles Adults

Substrates ...... Primarily sand, with some over Primarily gravel, with some sand Sand, gravel, cobble, and low gravel or cobble. and cobble. amounts of fine sediments.

In studies on the Gila River, there water to back up and break into braids Their reduced air bladder (the organ were seasonal shifts in microhabitats downstream of the dam. The braided that aids in controlling a fish’s ability to used, involving depth or velocity, areas provide excellent nurseries for float without actively swimming) allows depending on the study site. It is larval and juvenile fishes (Velasco 1997, them to persist in high-velocity habitats believed that seasonal shifts in pp. 28–29). with a minimal amount of energy, and microhabitat use reflect selection by On the Gila River in New Mexico, they live in the interstitial spaces spikedace for particular microhabitats. flows fluctuate seasonally with (openings) between rocks (Anderson In the cold season, when their metabolic snowmelt, causing spring pulses and and Turner 1977, pp. 2, 6–7, 9, 12–13; rate decreases, spikedace near the Forks occasional floods, and late-summer or Barber and Minckley 1966, p. 315; Lee area on the Gila River seek protected monsoonal rains produce floods of et al. 1980, p. 365; Britt 1982, pp. 10– areas among the cobble of stream varying intensity and duration. These 13, 29–30; J.M. Montgomery 1985, p. 21; channel margins, where water is high flows likely rejuvenate spikedace Marsh et al. 2003, p. 666; Minckley shallower and warmer. In other areas spawning and foraging habitat (Propst et 1981, p. 165; Propst et al. 1988, p. 35; such as the Cliff-Gila Valley, cobbled al. 1986, p. 3). Floods likely benefit Rinne 1989, p. 109; Velasco 1997, p. 28; banks for protection were generally not native fish by breaking up embedded Sublette et al. 1990, p. 187; AGFD 1994, available, but slow-velocity areas in the bottom materials (Mueller 1984, p. 355). pp. 1, 5–11; Bagley et al. 1995, pp. 11, lee of gravel bars and riffles were A study of the Verde River analyzed the 13, 16, 17, 22; Rinne 2001, p. 69; common, and spikedace shifted to these effects of flooding in 1993 and 1995, Minckley and Marsh 2009, p. 174). protected areas of slower velocity finding that the floods either stimulated Loach minnow are sometimes found in during the cold season. Seasonal spawning, enhanced recruitment of or near filamentous (threadlike) algae, changes in microhabitat preference by three native species, or eliminated one which are attached to the stream spikedace are not entirely understood, of the nonnative fish species (Stefferud substrates (Anderson and Turner 1977, and additional study is needed (Propst and Rinne 1996a, p. 80). p. 5; Lee et al. 1980, p. 365; Minckley et al. 1986, pp. 47–49). In summary, based on the best 1981, p. 165; Sublette et al. 1990, p. 187; Studies indicate a geographic scientific and commercial information Minckley and Marsh 2009, p. 174). variation in the portion of the stream available for spikedace, we have Microhabitats used by loach minnow used by spikedace. On the Verde River, developed the following ranges in vary by life stage and stream. Adult outside of the April to June breeding habitat parameters: loach minnow occupy a broad range of season, 80 percent of the spikedace • Shallow water generally less than water velocities, with the majority of collected used run and glide habitat. For 1 m (3.3 ft) in depth; adults occurring in swift flows. Their this study, a glide was defined as a • Slow to swift flow velocities eggs are adhesive, and are placed on the portion of the stream with a lower between 5 and 80 cm per second (sec) undersurfaces of rocks in the same gradient (0.3 percent), versus a run (1.9 and 31.5 in. per sec); riffles that they themselves occupy. which had a slightly steeper gradient • Glides, runs, riffles, the margins of After hatching, larval loach minnow (0.3–0.5 percent) (Rinne and Stefferud pools and eddies, and backwater move from the rocks under which they 1996, p. 14). In contrast, spikedace in components; were spawned to areas with slower the Gila River were most commonly • Sand, gravel, and cobble substrates velocities than the main stream, found in riffle areas of the stream with with low or moderate amounts of fine typically remaining in areas with moderate to swift currents (Anderson sediment and substrate embeddedness, significantly slower velocities than 1978, p. 17) and some run habitats (J.M. as maintained by a natural, unregulated juveniles and adults. Larval loach Montgomery 1985, p. 21), as were flow regime that allows for periodic minnow occupy areas that are shallower spikedace in Aravaipa Creek (Barber flooding or, if flows are modified or and significantly slower than areas and Minckley 1966, p. 321). regulated, a flow regime that allows for where eggs are found (Propst et al. 1988, Flooding. In part, suitable habitat adequate river functions, such as flows p. 37; Propst and Bestgen 1991, p. 32). conditions are maintained by flooding. capable of transporting sediments; Juvenile loach minnow generally occur Periodic flooding appears to benefit • Low gradients of less than in areas where velocities are similar to spikedace in three ways: (1) Removing approximately one percent; those used by adults, and that have excess sediment from some portions of • Water temperatures in the general higher flow velocities than those the stream; (2) removing nonnative fish range of 8 to 28 °C (46.4 to 82.4 °F); and occupied by larvae (Propst et al. 1988, species from a given area; and (3) • Elevations below 2,100 m (6,890 ft). pp. 36–37). increasing prey species diversity. Items Substrate is an important component 2 and 3 will be addressed in greater Loach Minnow of loach minnow habitat. Studies in detail below. Microhabitat. The best scientific and Aravaipa Creek and the Gila River Flooding in Aravaipa Creek has commercial information available indicate that loach minnow prefer resulted in the transport of heavier loads indicates that, in general, loach minnow cobble and large gravel, avoiding areas of sediments, such as cobble, gravel, and live on the bottom streams or rivers with dominated by sand or fine gravel. This sand that are deposited where the low gradients within shallow, swift, and may be because loach minnow maintain stream widens, gradient flattens, and turbulent riffles. They are also known to a relatively stationary position on the velocity and turbulence decreases. occupy pool, riffle, and run habitats in bottom of a stream in flowing water. An Natural dams formed by the deposition some areas. They live and feed among irregular bottom, such as that created by of this sediment can temporarily cause clean, loose, gravel-to-cobble substrates. cobble or larger gravels, creates pockets

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of lower water velocities around larger stream temperature (Propst et al. 1988, additional stressors, including disease, rocks where loach minnow can remain p. 62). Suitable temperature regimes predation, competition, or poor water stationary with less energy expenditure appear to be fairly consistent across quality. The study concludes that since (Turner and Tafanelli 1983, pp. 24–25). geographic areas. Studies of Aravaipa 100 percent survival of loach minnow at In the Gila and San Francisco rivers, the Creek, East Fork White River, the San 28 °C (82.4 °F) was observed, that little majority of loach minnow captured Francisco River, and the Gila River juvenile or adult mortality would occur occurred in the upstream portion of a determined that loach minnow were due to thermal stress if peak water riffle, rather than in the central and present in areas with water temperatures remain at or below that lower sections of the riffle, where loose temperatures in the range of 9 to 22 °C level (Bonar et al. 2005, pp. 6–8, 28, 33). materials are more likely to fall out of (48.2 to 71.6 °F) (Britt 1982, p. 31; Gradient may influence the the water column and settle on the Propst et al. 1988, p. 62; Leon 1989, p. distribution and abundance of loach stream bottom. This is likely due to the 1; Propst and Bestgen 1991, p. 33; Vives minnow. In studies of the San Francisco availability of interstitial spaces in the and Minckley 1990, p. 451). River, Gila River, Aravaipa Creek, and cobble-rubble substrate, which became Studies by the University of Arizona the Blue River, loach minnow occurred filled with sediment more quickly in the in stream reaches where the gradient central and lower sections of a riffle focused on temperature tolerances of loach minnow. In one study, fish were was generally low, ranging from 0.3 to (Propst et al. 1984, p. 12). 2.2 percent (Rinne 1989, p. 109; Rinne Varying substrates are used during acclimated to a given temperature, and 2001, p. 69). different life stages of loach minnow. then temperatures were increased by 1 ° ° Adults occur over cobble and gravel, C (33.8 F) per day until test Table 3 compares specific parameters and place their eggs in these areas. temperatures were reached. The study of microhabitats occupied by loach Larval loach minnow are found where determined that no loach minnow minnow at various ages as identified substrate particles are smaller than survived for 30 days at 32 °C (89.6 °F), through studies completed to date. those used by adults. Juvenile loach and that 50 percent mortality occurred Studies on habitat occupied by loach minnow occupy areas with substrates of after 30 days at 30.6 °C (87.1 °F). In minnow have been completed on the larger particle size than larvae. addition, growth rate slowed at 28 and Gila River, Tularosa River, San Generally, adults exhibited a narrower 30 °C (82.4 and 86.0 °F) compared to Francisco River, Aravaipa Creek, Deer preference for depth and substrate than growth at 25 °C (77 °F), indicating that Creek, and Eagle Creek (Barber and did juveniles, and were associated with loach minnow were stressed at sublethal Minckley 1966, p. 321; Britt 1982, pp. gravel to cobble substrates within a temperatures. Survival of fish in the 1, 5, 10–12, 29; Turner and Tafanelli narrower range of depths (Propst et al. fluctuating temperature trials of the 1983, pp. 15–20, 26; Propst et al. 1984, 1988, pp. 36–39; Propst and Bestgen study likely indicates that exposure to pp. 7–12; Propst et al. 1988, pp. 32, 36– 1991, pp. 32–33). higher temperatures for short periods 39; Rinne 1989, pp. 111–113, 116; Loach minnow have a fairly narrow during a day would be less stressful to Propst and Bestgen 1991, p. 32; Vives range in temperature tolerance, and loach minnow. The study concludes and Minckley 1990, pp. 451–452; Propst their upstream distributional limits in that temperature tolerance in the wild and Bestgen 1991, pp. 32–33; Velasco some areas may be linked to low winter may be lower due to the influence of 1997, pp. 5–6; Marsh et al. 2003, p. 666).

TABLE 3—HABITAT PARAMETERS FOR VARYING LIFE STAGES OF LOACH MINNOW

Egg Larvae Juveniles Adults

Flow velocity in centi- 3.0–91.4 (1.2–36.0) ...... 0.0–48.8 (0.0–19.2) ...... 3.0–85.3 (1.2–33.6) ...... 0.0–79.2 (0.0–31.2). meters per second (inches per second). Depth in centimeters 3.0–30.5 (1.2–12) ...... 3.0–45.7 (1.2–8.0) ...... 6.1–42.7 (2.4–16.8) ...... 6.1–45.7 (2.4–18.0). (inches). Substrate ...... Large gravel to rubble ...... No data ...... No data ...... Gravel to cobble.

There are some differences in loach minnow. In areas where (addressed further below) (Stefferud and microhabitats occupied by loach substantial diversions (structures Rinne 1996b, p. 1). minnow in different areas. Studies created to divert water to pools for Flooding also cleans, rearranges, and completed in New Mexico determined pumping from the stream) or rehabilitates important riffle habitat that there were significant differences in impoundments have been constructed, (Propst et al. 1988, pp. 63–64). Flooding water velocities occupied among the loach minnow are less likely to occur allows for the scouring of sand and three study sites, with the mean (Propst et al. 1988, pp. 63–64; Propst gravel in riffle areas, which reduces the velocities at 37.4 (Tularosa River), 56.3 and Bestgen 1991, p. 37). This is in part degree of embeddedness of cobble and (Forks area of the Gila River) and 60.5 due to habitat changes caused by the boulder substrates (Britt 1982, p. 45). cm per second (Cliff-Gila Valley site on construction of the diversions, and in Typically, sediment is carried along the the Gila River). Differences in water part due to the reduction of beneficial bed of a stream and deposited at the depth were not as pronounced, effects of flooding on loach minnow however. Much of the variation in downstream, undersurface side of habitat. Flooding appears to positively cobbles and boulders. Over time, this microhabitat utilization may be affect loach minnow population explained by habitat availability, as the can result in the filling of cavities dynamics by resulting in higher compared streams varied in size (Propst created under cobbles and boulders recruitment (reproduction and survival et al. 1988, pp. 37–43). (Rinne 2001, p. 69). Flooding removes of young) and by decreasing the the extra sediment, and cavities created Flooding. Flooding also plays an abundance of nonnative fishes under cobbles by scouring action of the important role in habitat suitability for

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flood waters provides enhanced stoneflies, and dragonflies (Order genus Baetidae (Schreiber 1978, p. 36), spawning habitat for loach minnow. Odonata) are all potential prey items. In which are free-ranging species of rapid Studies on the Gila, Tularosa, and San one Gila River study, the frequency of waters that maintain themselves in Francisco rivers found that flooding is occurrence was 71 percent for mayflies, currents by clinging to pebbles. primarily a positive influence on native 34 percent for true flies, and 25 percent Spikedace also consumed individuals fish, and apparently had a positive for caddisflies (Propst et al. 1986, p. 59). from two other mayfly genera influence on the relative abundance of A second Gila River study of four (Heptageniidae and Ephemerellidae), loach minnow (Britt 1982, p. 45). Rather samples determined that total food which are considered ‘‘clinging than following a typical pattern of volume was composed of 72.7 percent species,’’ as they cling tightly to stones winter mortality and population mayflies, 17.6 percent caddisflies, and and other objects and may be found in decline, high levels of loach minnow 4.5 percent true flies (Anderson 1978, greatest abundance in crevices and on recruitment occurred after the flood, pp. 31–32). At Aravaipa Creek, mayflies, the undersides of stones (Pennak 1978, and loach minnow relative abundance caddisflies, true flies, stoneflies, and p. 539). The importance of gravel and remained high through the next spring. dragonflies were all prey items for cobble substrates is illustrated by the Flooding enhanced and enlarged loach spikedace, as were some winged insects fact that the availability of these prey minnow habitat, resulting in a greater and plant materials (Schreiber 1978, pp. species, which make up the bulk of the survivorship of individuals through 12–16, 29, 35–37). Barber and Minckley spikedace diet, requires these surfaces winter and spring (Propst et al. 1988, p. (1983, pp. 34–38) found that spikedace to persist. 51). Similar results were observed on at Aravaipa Creek also consumed ants The availability of food for spikedace the Gila and San Francisco rivers and wasps (Order Hymenoptera), is affected by flooding. The onset of following flooding in 1978 (Britt 1982, spiders (Order Areneae), beetles (Order flooding corresponds with an increased p. 45). Coleoptera), true bugs, and water fleas diversity of food items, as inflowing In summary, based on the best (Order Cladocera). flood water carries terrestrial scientific and commercial information Spikedace diet varies seasonally invertebrates, such as ants, bees, and available for loach minnow, we have (Barber and Minckley 1983, pp. 34–38). wasps, into aquatic areas (Barber and developed generalized ranges in habitat Mayflies dominated stomach contents in Minckley 1983, p. 39). parameters within streams or rivers, as July, but declined in August and Water. As a purely aquatic species, follows: September, increasing in importance spikedace are entirely dependent on • Shallow water generally less than 1 again between October and June. When streamflow habitat for all stages of their m (3.3 ft) in depth; mayflies were available in lower life cycle. Therefore, perennial flows are • Slow to swift flow velocities numbers, spikedace consumed a greater an essential feature. Areas with between 0 and 80 cm per sec (0.0 and variety of foods, including true bugs, intermittent flows may serve as 31.5 in. per sec); true flies, beetles, and spiders. connective corridors between occupied • Pools, runs, riffles and rapids; Spikedace diet varies with age class as or seasonally occupied habitat through • Sand, gravel, cobble, and rubble well. Young spikedace fed on a diversity which the species may move when the substrates with low or moderate of small-bodied invertebrates occurring habitat is wetted. In addition to water quantity, water amounts of fine sediment and substrate in and on sediments along the margins quality is important to spikedace. Water embeddedness, as maintained by a of the creek. True flies were found most with no or low levels of pollutants is natural, unregulated flow regime that frequently, but water fleas and aerial essential for the survival of spikedace. allows for periodic flooding or, if flows adults of aquatic and terrestrial insects For spikedace, pollutants such as are modified or regulated, flow regime also provide significant parts of the diet. copper, arsenic, mercury, cadmium, that allows for adequate river functions, As juveniles grow and migrate into the human and animal waste products, such as flows capable of transporting swifter currents of the channel, mayfly nymphs (invertebrates between the pesticides, suspended sediments, ash, sediments; and gasoline or diesel fuels should not • Water temperatures in the general larval and adult life stages, similar to juveniles) and adults increase in be present at high levels (Baker, 2005, range of 8 to 25 °C (46.4 to 77 °F); pers. comm.). In addition, for freshwater • Low stream gradients of less than importance (Barber and Minckley 1983, pp. 36–37). fish, dissolved oxygen should generally approximately 2.5 percent; and Spikedace are dependent on aquatic be greater than 3.5 cubic centimeters per • Elevations below 2,500 m (8,202 ft). insects for sustenance, and the liter (cc per l) (Bond 1979, p. 215). Food, Water, Air, Light, Minerals, or production of the aquatic insects Below this level, some stress to fish may Other Nutritional or Physiological consumed by spikedace occurs mainly occur. Requirements in riffle habitats (Propst et al. 1986, p. Fish kills have been documented 59). Barber and Minckley (1983, pp. 36– within the range of the spikedace, Spikedace 37, 40) found that spikedace in pools including on the San Francisco River Food. Spikedace are active, highly had eaten the least diverse food, while (Rathbun 1969, pp. 1–2) and the San mobile fish that visually inspect drifting those from riffles contained a greater Pedro River (Eberhardt 1981, pp. 1–4, 6– materials both at the surface and within variety of taxa, indicating that the 9, 11–12, 14, 16, and Tables 2–8). the water column. Gustatory inspection, presence of riffles in good condition and Occupancy by spikedace at the San or taking the potential prey items into abundance help to ensure that a Francisco River site is less certain, but the mouth before either swallowing or sufficient number and variety of prey spikedace were present in the Gila River rejecting it, is also common (Barber and items will continue to be available for upstream of its confluence with the San Minckley 1983, p. 37). Prey body size is spikedace. Francisco. Spikedace were present in small, typically ranging from 2 to 5 mm Aquatic invertebrates that constitute the San Pedro River up through 1969 (0.08 to 0.20 in) long (Anderson 1978, the bulk of the spikedace diet have within the area affected by the Cananea p. 36). specific habitat parameters of their own. Mine spill, which extended 97 km (60 Stomach content analysis of Mayflies occur primarily in fresh water mi) north of the United States/Mexico spikedace determined that mayflies, with an abundance of oxygen. border (Eberhardt 1981, p. 3). All caddisflies, true flies (Order Diptera), Spikedace consume mayflies from the aquatic life within this 97-km (60-mi)

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stretch was killed between 1977 and the year for adults studied on the Gila was killed between 1977 and 1979, and 1979, and no spikedace records are and San Francisco Rivers, while larvae no loach minnow records are known known after that time. For both the San of true flies (insects of the order Diptera) after that time. On the San Francisco Francisco and San Pedro rivers, were most common in the winter River, loach minnow are known to have leaching ponds associated with copper months (Propst et al. 1988, p. 27; Propst occurred in the general area of the spill mines released waters into the streams, and Bestgen 1991, p. 35). In Aravaipa in the 1980s and 1990s (ASU 2002). resulting in elevated levels of toxic Creek, loach minnow consumed 11 Additional spills or discharges have chemicals. For the San Pedro River, this different prey items, including mayflies, occurred in the Gila River and affected included elevated levels of iron, copper, stoneflies, caddisflies, and true flies. streams within the watersheds occupied manganese, and zinc. Both incidents Mayflies constituted the largest by loach minnow, including the Gila resulted in die-offs of species inhabiting percentage of their diet during this River, San Francisco River, San Pedro the streams. Eberhardt (1981, pp. 1, 3, study except in January, when true flies River, and some of their tributaries (EPA 9, 10, 14–15) noted that no bottom- made up 54.3 percent of the total food 1997, pp. 24–67; Arizona Department of dwelling aquatic insects, live fish, or volume (Schreiber 1978, pp. 40–41). Environmental Quality 2000, p. 6; aquatic vegetation of any kind were Loach minnow consume different Church et al. 2005, p. 40; Arizona found in the area affected by the spill. prey items during their various life Department of Environmental Quality Rathbun (1969, pp. 1–2) reported stages. Both larvae and juveniles 2007, p. 1). similar results for the San Francisco primarily consumed true flies, which In summary, based on the best River. As detailed above under the constituted approximately 7 percent of scientific and commercial information threats discussion, spills or discharges their food items in one year, and 49 available for loach minnow, we have have occurred in the Gila River and percent the following year in one study. identified an appropriate prey base and affected streams within the watersheds Mayfly nymphs were also an important water quality for loach minnow to of spikedace, including the Gila River, dietary element at 14 percent and 31 include: San Francisco River, San Pedro River, percent during a one-year study. Few • An abundant aquatic insect food and some of their tributaries (EPA 1997, other aquatic macroinvertebrates were base consisting of mayflies, true flies, pp. 24–67; Arizona Department of consumed (Propst et al. 1988, p. 27). In black flies, caddisflies, stoneflies, and Environmental Quality 2000, p. 6; a second study, true fly larvae and dragonflies; Church et al. 2005, p. 40; Arizona mayfly nymphs constituted the primary • Streams with no or no more than Department of Environmental Quality food of larval and juvenile loach low levels of pollutants; • 2007, p. 1). minnow (Propst and Bestgen 1991, p. Perennial flows, or interrupted In summary, based on the best 35). stream courses that are periodically scientific and commercial information The availability of pool and run dewatered but that serve as connective available for spikedace, we conclude habitats affects availability of prey corridors between occupied or that an appropriate prey base and water species. While most of the food items of seasonally occupied habitat and through quality parameters for spikedace will loach minnow are riffle species, two are which the species may move when the include: not, including true fly larvae and mayfly habitat is wetted; and • An abundant aquatic insect food nymphs. Mayfly nymphs, at times, • Streams with a natural, unregulated base consisting of mayflies, true flies, made up 17 percent of the total food flow regime that allows for periodic black flies, caddisflies, stoneflies, and volume of loach minnow in a study at flooding or, if flows are modified or dragonflies; Aravaipa Creek (Schreiber 1978, pp. 40– regulated, a flow regime that allows for • Streams with no or no more than 41). The presence of a variety of habitat adequate river functions, such as flows low levels of pollutants; types is, therefore, important to the capable of transporting sediments. • Perennial flows, or interrupted persistence of loach minnow in a Cover or Shelter stream courses that are periodically stream, even though they are typically dewatered but that serve as connective associated with riffles. Spikedace. No specific information on corridors between occupied or Water Quality. Water, with no or low habitat parameters used specifically for seasonally occupied habitat and through pollutant levels, is important for the cover and shelter is available for which the species may move when the conservation of loach minnow. For spikedace. Therefore, we have not habitat is wetted; loach minnow, waters should have no identified any specific conditions • Streams with a natural, unregulated more than low levels of pollutants, such specific to cover and shelter for flow regime that allows for periodic as copper, arsenic, mercury, cadmium, spikedace. flooding or, if flows are modified or human and animal waste products, Loach Minnow. As noted above, adult regulated, a flow regime that allows for pesticides, suspended sediments, and loach minnow are sometimes associated adequate river functions, such as flows gasoline or diesel fuels (Baker, 2005, with filamentous algae, which may capable of transporting sediments. pers. comm.). In addition, for freshwater serve as a protective cover (Anderson fish, dissolved oxygen should generally and Turner 1977, p. 5; Lee et al. 1980, Loach Minnow be greater than 3.5 cc per l (Bond 1979, p. 365; Minckley 1981, p. 165; Sublette Food. Loach minnow are p. 215). Below this, some stress to the et al. 1990, p. 187; Minckley and Marsh opportunistic, feeding on riffle-dwelling fish may occur. 2009, p. 174). Loach minnow adults larval mayflies, black flies, and true Fish kills associated with previous place their adhesive eggs on the flies, as well as from larvae of other mining accidents, as well as other undersides of rocks, with the rock aquatic insect groups such as caddisflies contaminants issues, are detailed under serving as protective cover. Propst et al. and stoneflies. Loach minnow in the the spikedace discussion above. These (1988, p. 21) found that the rocks used Gila, Tularosa, and San Francisco rivers incidents occurred within the historical were typically elevated from the surface consumed primarily true flies and range of the loach minnow. As with of the streambed on the downstream mayflies, with mayfly nymphs being an spikedace, loach minnow were known side, with most rocks flattened and important food item throughout the to occur in the area affected by the smooth surfaced. Adult loach minnow year. Mayfly nymphs constituted the Cananea Mine spill up through 1961. remain with the eggs, so that the rock most important food item throughout All aquatic life within the affected area serves as a protective cover for them as

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well (Propst et al. 1988, pp. 21–25, 36– velocities than larvae (0.0 to 57.9 cm per from 3.0 to 91.4 cm per second (36.0 in. 39). second (22.8 in. per second)), but per second). The majority of rocks with occurred at similar depths as larvae attached eggs were found in water Sites for Breeding, Reproduction, or (Propst et al. 1986, pp. 40–41). flowing at approximately 42.7 cm per Rearing (or Development) of Offspring As noted above, excessive second (16.8 in. per second). The range Spikedace sedimentation can lead to suffocation of of depths in which rocks with eggs Suitable sites. Spikedace occur in eggs. Clean substrates are therefore attached were found was 3.0 to 30.5 cm specific habitat during the breeding essential for successful breeding. Both (1.2 to 12 in), with the majority found season, with female and male spikedace flooding and unaltered flow regimes are between 6.1 and 21.3 cm (2.4 and 8.4 in) becoming segregated. Females occupy essential for maintenance of suitable (Propst et al. 1988, pp. 36–39). pools and eddies, while males occupy substrates. As noted above under habitat Loach minnow larvae occupy riffles flowing over sand and gravel beds requirements, periodic flooding appears shallower and slower water than eggs. in water approximately 7.9 to 15.0 cm to benefit spikedace by removing excess In Gila River studies, larvae occurred in (3.1 to 5.9 in) deep. Females then enter sediment from some portions of the flow velocities averaging 7.9 cm per the riffles occupied by the males before stream, breaking up embedded bottom second (3.1 in. per second), and in eggs are released into the water column materials, or rearranging sediments in depths between 3.0 to 45.7 cm (1.2 to 18 (Barber et al. 1970, pp. 11–12). ways that restore suitable habitats. in). Juveniles occurred in areas with Spikedace eggs are adhesive and Flooding may also stimulate spawning higher velocities, ranging between 35.1 develop among the gravel and cobble of or enhance recruitment (Mueller 1984, and 85.3 cm per second (13.8 and 33.6 the riffles following spawning. p. 355; Propst et al. 1986, p. 3; Stefferud in. per second). Juveniles occurred in Spawning in riffle habitat ensures that and Rinne 1996a, p. 80; Minckley and slightly deeper water of approximately the eggs are well oxygenated and are not Meffe 1987, pp. 99, 100; Rinne and 6.1 to 42.7 cm (2.4 to 16.8 in) (Propst et normally subject to suffocation by Stefferud 1997, pp. 159, 162; Velasco al. 1988, pp. 36–39). As noted above under general habitat sediment deposition due to the swifter 1997, pp. 28–29). Streams in the requirements, flooding is important in flows found in riffle habitats. However, southwestern United States have a wide maintaining loach minnow habitat, after the eggs have adhered to the gravel fluctuation in flows and some are including habitats used for breeding. and cobble substrate, excessive periodically dewatered. While portions Flooding reduces embeddedness of sedimentation could cause suffocation of stream segments included in these cobble and boulder substrates under of the eggs (Propst et al. 1986, p. 40). designations may experience dry Larval and juvenile spikedace occupy periods, they are still considered which eggs are placed (Britt 1982, p. peripheral portions of streams that have important because the spikedace is 45). The construction of water slower currents (Anderson 1978, p. 17; adapted to stream systems with diversions have reduced or eliminated Propst et al. 1986, pp. 40–41). Gila River fluctuating water levels. While they riffle habitat in many stream reaches, studies found larval spikedace in cannot persist in dewatered areas, resulting in pool development. Loach velocities of 8.4 cm per second (3.3 in. spikedace will use these areas as minnow are generally absent in stream per sec) while juvenile spikedace connective corridors between occupied reaches affected by impoundments. occupy areas with velocities of or seasonally occupied habitat when While the specific factors responsible approximately 16.8 cm per second (6.6 they are wetted. Areas that serve as for this are not known, it is likely in. per sec) (Propst et al. 1986, p. 41). connective corridors are those related to modification of thermal Once they emerge from the gravel of ephemeral or intermittent stream regimes, habitat, food base, or discharge the spawning riffles, spikedace larvae segments that connect two or more other patterns (Propst et al. 1988, p. 64; disperse to stream margins where water perennial stream segments. Minckley 1973, pp. 1–11). Therefore, based on the information velocity is very slow or still. Larger Therefore, based on the information above, we identify appropriate sites for larval and juvenile spikedace (those fish above, we identify appropriate sites for breeding, reproduction, or development 25.4 to 35.6 mm (1.0 to 1.4 in) in length) breeding, reproduction, or development of offspring for loach minnow to occurred over a greater range of water of offspring for spikedace to include: • Sand, gravel, and cobble substrates; include: velocities than smaller larvae, but still • Riffle habitat; • Cobble substrates; occupied water depths of less than 32.0 • Slower currents along stream • Riffle habitats; cm (12.6 in) (Propst et al. 1986, p. 40). margins with appropriate stream • Slower currents along stream Juveniles and larvae are also velocities for larvae; margins with appropriate stream occasionally found in quiet pools or • Appropriate water depths for larvae velocities for larvae; backwaters (e.g., pools that are and juvenile spikedace; • Appropriate water depths for larvae connected with, but out of, the main • Flow velocities that encompass the and juvenile loach minnow; river channel) lacking streamflow range of 8.5 cm per sec (3.3 in. per sec) • Flow velocities that encompass the (Sublette et al. 1990, p. 138). to 57.9 cm per sec (22.8 in. per sec); and range of 6.1 to 42.7 cm (2.4 to 16.8 in); During a study on the Gila River, 60 • Streams with a natural, unregulated and percent of spikedace larvae were found flow regime that allows for periodic • Streams with a natural, unregulated over sand-dominated substrates, while flooding or, if flows are modified or flow regime that allows for periodic 18 percent were found over gravel, and regulated, a flow regime that allows for flooding or, if flows are modified or an additional 18 percent found over adequate river functions, such as flows regulated, a flow regime that allows for cobble-dominated substrates. While 45 capable of transporting sediments. adequate river functions, such as flows percent of juvenile spikedace were capable of transporting sediments. found over sand substrates, an Loach Minnow additional 45 percent of the juveniles Adult loach minnow attach eggs to Spikedace were found over gravel substrates, with the undersurfaces of rocks in the same Nonnative aquatic species. One of the the remaining 10 percent associated riffles in which they are typically found. primary reasons for the decline of native with cobble-dominated substrates. In studies conducted on the Gila River, species is the presence of nonnative Juveniles occupy a wider range in flow water velocities in these areas ranged aquatic species, as described above

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under Factors C and E above. Nonnative Loach Minnow biology, and ecology of the species and aquatic species can include fishes, As with spikedace (discussed above), the habitat requirements for sustaining crayfish, or parasites, among others. interference and exploitive competition the essential life-history functions of the Interactions with nonnative fishes can with nonnative species can be species, we have determined that PCEs occur in the form of interference detrimental to loach minnow. for the spikedace are: competition (e.g., predation) or Interference competition, in the form of (1) Habitat to support all egg, larval, exploitive competition (competition for predation, may result from interactions juvenile, and adult spikedace, which resources), and introduced species are between loach minnow and nonnative includes: considered a primary factor in the channel and flathead catfish, while a. Perennial flows with a stream depth decline of native species (Anderson exploitive competition likely occurs generally less than 1 m (3.3 ft), and with 1978, pp. 50–51; Miller et al. 1989, p. with red shiner. slow to swift flow velocities between 5 1; Lassuy 1995, p. 392). Multiple The discussion under Factor C above and 80 cm per second (1.9 and 31.5 in. nonnative fish species are now present on disease and predation includes per second). in the range of spikedace and loach information on other nonnative aquatic b. Appropriate stream microhabitat minnow. In addition, nonnative species, such as Asian tapeworm, types including glides, runs, riffles, the parasites are also present. anchor worm, and Ich, which are also margins of pools and eddies, and Flooding may help to reduce the detrimental to loach minnow. backwater components over sand, threat presented by nonnative species. The discussion under spikedace on gravel, and cobble substrates with low Minckley and Meffe (1987, pp. 99–100) flooding and its benefits in potentially or moderate amounts of fine sediment found that flooding, as part of a natural minimizing threats from nonnative and substrate embeddedness; flow regime, may temporarily remove fishes applies to loach minnow as well. c. Appropriate stream habitat with a nonnative fish species, which are not The information presented above low gradient of less than approximately adapted to flooding patterns in the indicates the detrimental effects of 1.0 percent, at elevations below 2,100 m Southwest. Thus flooding consequently interference and exploitive competition (6,890 ft); and removes the competitive pressures of with nonnative species to loach d. Water temperatures in the general nonnative fish species on native fish minnow, as well as the issues presented range of 8.0 to 28.0 °C (46.4 to 82.4 °F). species which persist following the by the introduction of nonnative (2) An abundant aquatic insect food flood. Minckley and Meffe (1987, pp. parasites. Therefore, based on the best base consisting of mayflies, true flies, 99–100) studied the differential scientific and commercial information black flies, caddisflies, stoneflies, and response of native and nonnative fishes currently available for spikedace, we dragonflies. in seven unregulated and three conclude that suitable habitat with (3) Streams with no or no more than regulated streams or stream reaches that respect to nonnative aquatic species were sampled before and after major low levels of pollutants. should include: (4) Perennial flows, or interrupted flooding and noted that fish faunas of • Habitat devoid of nonnative aquatic canyon-bound reaches of unregulated stream courses that are periodically species, or habitat in which nonnative dewatered but that serve as connective streams invariably shifted from a aquatic species are at levels that allow mixture of native and nonnative fish corridors between occupied or persistence of loach minnow; and seasonally occupied habitat and through species to predominantly, and in some • Streams with a natural, unregulated which the species may move when the cases exclusively, native fishes after flow regime that allows for periodic habitat is wetted. large floods. Samples from regulated flooding or, if flows are modified or systems indicated relatively few or no regulated, a flow regime that allows for (5) No nonnative aquatic species, or changes in species composition due to adequate river functions, such as flows levels of nonnative aquatic species that releases from upstream dams at low, capable of transporting sediments. are sufficiently low as to allow controlled volumes. However, during persistence of spikedace. emergency releases, effects to nonnative Primary Constituent Elements for (6) Streams with a natural, fish species were similar to those seen Spikedace unregulated flow regime that allows for with flooding on unregulated systems. As noted above, we are required to periodic flooding or, if flows are There is some variability in fish identify the PBFs essential to the modified or regulated, a flow regime response to flooding. Some nonnative conservation of spikedace and loach that allows for adequate river functions, species, such as smallmouth bass and minnow in areas occupied at the time of such as flows capable of transporting green sunfish, appear to be partially listing, focusing on the features’ PCEs. sediments. adapted to flooding, and often reappear We consider PCEs to be the elements of Primary Constituent Elements for Loach in a few weeks (Minckley and Meffe PBFs that provide for a species’ life- Minnow 1987, p. 100). history processes, and that are essential The information presented above to the conservation of the species. We Based on the above needs and our indicates the detrimental effects of outline the appropriate quantities and current knowledge of the life history, interference and exploitive competition spatial arrangements of the elements in biology, and ecology of the species and with nonnative species to spikedace, as the Physical or Biological Features the habitat requirements for sustaining well as the issues presented by the (PBFs) section of the October 28, 2010, the essential life-history functions of the introduction of nonnative parasites. proposed rule. For example, spawning species, we have determined that PCEs Therefore, based on the best scientific substrate would be considered an for the loach minnow are: and commercial information currently essential feature, while the specific (1) Habitat to support all egg, larval, available for spikedace, we conclude composition (sand, gravel, and cobble) juvenile, and adult loach minnow that suitable habitat with respect to and level of embeddedness are the which includes: nonnative aquatic species is habitat elements (PCEs) of that feature. This (a) Perennial flows with a stream devoid of nonnative aquatic species, or section identifies the PCEs for both depth of generally less than 1 m (3.3 ft), habitat in which nonnative aquatic spikedace and loach minnow. and with slow to swift flow velocities species are at levels that allow Based on the above needs and our between 0 and 80 cm per second (0.0 persistence of spikedace. current knowledge of the life history, and 31.5 in. per second);

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(b) Appropriate microhabitat types although concern for this threat has recovery assessment of potential steps including pools, runs, riffles, and rapids lessened due to improved management necessary for achieving recovery of over sand, gravel, cobble, and rubble practices. The construction of water spikedace and loach minnow. substrates with low or moderate diversions can cause increasing water The current distribution of both amounts of fine sediment and substrate depth behind diversion structures, and spikedace and loach minnow is much embeddedness; has reduced or eliminated riffle habitat reduced from their historical (c) Appropriate stream habitats with a in many stream reaches. In addition, distribution. We anticipate that recovery low stream gradient of less than 2.5 loach minnow are generally absent in will require continued protection of percent and are at elevations below stream reaches affected by existing populations and habitat, as well 2,500 m (8,202 ft); and impoundments. While the specific as establishing populations in (d) Water temperatures in the general factor responsible for this is not known, additional streams within their ° ° range of 8.0 to 25.0 C (46.4 to 77 F). it is likely related to modification of historical ranges. Not all streams within (2) An abundant aquatic insect food thermal regimes, habitat, food base, or their historical range have retained the base consisting of mayflies, true flies, discharge patterns. necessary PBFs, and the critical habitat black flies, caddisflies, stoneflies, and We have included below in our designation does not include all streams dragonflies. description of each of the critical habitat known to have been occupied by the (3) Streams with no or no more than areas for the spikedace and loach species historically. The critical habitat low levels of pollutants. minnow a discussion of the threats designation instead focuses on streams (4) Perennial flows, or interrupted occurring in that area requiring special within the historical range that have stream courses that are periodically management or protections. retained the necessary PBFs, and that dewatered but that serve as connective will allow the species to reach recovery corridors between occupied or Criteria Used To Identify Critical by ensuring that there are adequate seasonally occupied habitat and through Habitat numbers of fish in stable populations, which the species may move when the As required by section 4(b) of the Act, and that these populations occur over a habitat is wetted. we used the best scientific and wide geographic area. This will help to (5) No nonnative aquatic species, or commercial data available in minimize the likelihood that levels of nonnative aquatic species that determining areas within the catastrophic events, such as wildfire or are sufficiently low to allow persistence geographical area occupied at the time contaminant spills, would be able to of loach minnow. of listing that contain the features (6) Streams with a natural, essential to the conservation of simultaneously affect all known unregulated flow regime that allows for spikedace and loach minnow, and areas populations. We developed necessary periodic flooding or, if flows are outside of the geographical areas steps for downlisting as well as modified or regulated, a flow regime occupied at the time of listing that are delisting. that allows for adequate river functions, essential for the conservation of For spikedace, our preliminary such as flows capable of transporting spikedace and loach minnow. Sources recovery assessment recommends that, sediments. of data for these two species include in order to downlist the species from multiple databases maintained by endangered to threatened, one Special Management Considerations or universities and State agencies for additional stable population be Protection Arizona and New Mexico, existing established in either the Salt or Verde When designating critical habitat, we recovery plans, endangered species subbasins, and the number of occupied assess whether the specific areas reports (Propst et al. 1986, 1988), and streams be increased from 8 (the current determined to be occupied at the time numerous survey reports on streams level) to 10 rangewide. Occupancy may of listing contain the PBFs and may throughout the species’ range. We have be established through natural means require special management also reviewed available information that (i.e., expansion by the fish themselves) considerations or protection. We believe pertains to the habitat requirements of or through translocation efforts. For each area included in these designations this species. Sources of information on delisting of spikedace, our preliminary requires special management and habitat requirements include existing recovery assessment indicates that a protections as described in our unit recovery plans, endangered species stable population should be established descriptions. reports, studies conducted at occupied in the remaining subbasin, and that Special management considerations sites and published in peer-reviewed occupied streams within the historical for each area will depend on the threats articles, agency reports, and data range of the species be increased to 12. to the spikedace or loach minnow, or collected during monitoring efforts. In addition, the goal is to ensure that all both, in that critical habitat area. For The recovery plans for spikedace and genetic lineages are adequately example, threats requiring special loach minnow were both finalized in represented in the 12 occupied streams, management include nonnative fish 1991 (Service 1991a; Service 1991b), where appropriate and feasible. species and the continued spread of and are in need of revision to update For loach minnow, our preliminary nonnative fishes into spikedace or loach information on species distribution, recovery assessment recommends that, minnow habitat. Other threats requiring revisit conservation priorities, address in order to downlist the species from special management include the threat any new information developed through endangered to threatened, the number of of fire, retardant application during fire, monitoring and research, and bring the occupied streams be increased from 19 and excessive ash and sediment plans into conformance with current (the current level) to 22, with one following fire. Poor water quality and Service standards. At the time the plans occupied stream in each of the major adequate quantities of water for all life were written, captive propagation and watersheds. For delisting, the stages of spikedace and loach minnow reintroduction projects had not yet preliminary recovery assessment threaten these fish and may require begun. With these efforts now under recommends increasing the number of special management actions or way, prioritization is needed. We are in occupied streams to 25, with at least one protections. Certain livestock grazing the process of convening a recovery occupied stream in each of the major practices can be a threat to spikedace team for this purpose. In the interim, we watersheds, and that remaining genetic and loach minnow and their habitats, have developed an internal preliminary lineages be adequately represented in at

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least one stream, where appropriate and We determined that all areas summarized in Table 4, to determine feasible. designated as critical habitat for which areas to designate as critical The preliminary recovery assessment spikedace and loach minnow contain habitat: makes other recommendations, the PCEs for each species. There are no (1) Evaluate the habitat suitability of including establishing protective developed areas within the designations stream segments known to have been measures for connective areas, for either species except for barriers occupied at listing: maintaining captive breeding stocks, constructed on streams or road crossings (a) Retain those segments that contain and developing plans for augmentation of streams, which do not remove the the PCEs to support life-history of captive breeding stock. suitability of these areas for these functions essential for the conservation Our preliminary recovery assessment species. of the species, or of the habitats needed for conservation Using our preliminary recovery (b) Eliminate those areas known to of these species attempts to provide assessment for selection of critical have been occupied at listing, but that geographic distribution across the habitat, we have developed a ranges of the species, represent the full designation to expand the current no longer contain any PCEs for the ranges of habitat and environmental distribution of the two species by species. variability the species have occupied, including both specific areas known to (2) Evaluate stream segments not and preserve existing genetic diversity. be occupied by the species at listing, as known to have been occupied at listing We anticipate that the final recovery well as including some areas that were but that are within the historical range plans developed by the Recovery Team, not known to be occupied at listing, but of the species to determine if they are once formed, may vary from this which were once part of their historical essential to the survival and assessment, and will likely provide ranges. These unoccupied areas are conservation (i.e., recovery) of the additional criteria and prioritization of essential to the recovery of the species species. Essential areas are those that: recovery actions. However, the broad because their current distribution is (a) Serve as an extension of habitat goals used in our preliminary recovery reduced to 10 to 20 percent of historical within the geographic area of an assessment will be similar to those for range, and concentrates fish in a few occupied unit; or the recovery planning process as remaining areas that could be more (b) Expand the geographic recovery will require expanding the susceptible to catastrophic events. distribution within areas not occupied currently contracted ranges and We used the following ruleset for both at the time of listing across the historical establishing additional populations. spikedace and loach minnow, also range of the species.

TABLE 4—SUMMARY OF CATEGORIZATION OF WATERWAYS DESIGNATED AS CRITICAL HABITAT FOR LOACH MINNOW AND SPIKEDACE

Stream category Criterion Categorized as

Occupied at listing ...... Segment contains sufficient PCEs * to support life-history 1a functions essential to the conservation of the species. Segment no longer supports any PCEs for the species, or 1b segment has been permanently altered so that restoration is unlikely. Not known to be occupied at listing but within the species’ Segment serves as an extension of habitat in the unit ...... 2a historical range. Segment expands the geographic distribution across the 2b range of the species. * PCE = primary constituent element.

The critical habitat designation individuals increases the likelihood of spikedace and loach minnow. includes two different categories of their persistence over time. Identifying additional streams for habitat. The ‘‘2a’’ category includes The ‘‘2b’’ category includes streams recovery of the two species ultimately currently unoccupied stream reaches within units that are not currently allows for additional occupied units within units that are tributaries to other, occupied by the species but that are still over a broader geographic range, which occupied stream reaches. For example, within their historical range. The reduces the overall impacts of within Unit 1, we include West Clear difference between ‘‘2a’’ and ‘‘2b’’ catastrophic events. Creek as a 2a stream for spikedace. West streams is that there is no occupancy In summary, we have considered the Clear Creek is not currently occupied, within the entire unit for a ‘‘2b’’ stream. known occupancy of the area in but it is a tributary to the Verde River, For example, while there are historical determining which areas are either in which is currently occupied. Increasing records of spikedace from within the category 1 (occupied at listing) versus the amount of occupied habitat in units, Salt River Subbasin (Unit 2), this category 2 (not occupied at listing), as like the Verde River, already occupied subbasin is unoccupied by the species. well as the suitability and level of by the species is essential because it We have included Tonto Creek and adverse impacts to habitat within each expands the available habitat within a some of its tributaries as ‘‘2b’’ streams unit. We believe the areas designated as given unit that can be occupied by the within the designation. Inclusion of this critical habitat provide for the two species and provides for an area provides for expansion of the conservation of the spikedace and the increased population size within that overall geographic distribution of loach minnow because they include spikedace. Expanding the geographic stream system. Increased population habitat for all extant populations and distribution of both species is essential sizes are essential to conserving the two provide habitat for all known genetic for species that occur in only a fragment species as higher numbers of lineages. of their former range, as is the case for

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We evaluated those stream segments determined that a relatively intact systems, recognizes that floodplains are retained through the above analysis, and riparian area, along with periodic an integral part of the stream ecosystem, refined the starting and end points by flooding in a relatively natural pattern, and contains the area and associated evaluating the presence or absence of is important for maintaining the PCEs features essential to the conservation of appropriate PCEs. We selected upstream necessary for long-term conservation of the species. Bankfull stage is not an and downstream cutoff points not to the spikedace and the loach minnow. ephemeral feature, meaning it does not include areas that are highly degraded The lateral extent (width) of riparian disappear. Bankfull stage can always be and are not likely restorable. For corridors fluctuates considerably determined and delineated for any example, permanently dewatered areas, between a stream’s headwaters and its stream we have designated as critical permanently developed areas, or areas mouth. The appropriate width for habitat. We acknowledge that the in which there was a change to riparian buffer strips has been the bankfull stage of any given stream may unsuitable parameters (e.g., a steep subject of several studies and varies change depending on the magnitude of gradient, bedrock substrate) were used depending on the specific function a flood event, but it is a definable and to mark the start or endpoint of a stream required for a particular buffer (Castelle standard measurement for stream segment within the designation. Critical et al. 1994, pp. 879–881). Most Federal systems. Unlike trees or cliff facings habitat stream segments were then and State agencies generally consider a used by terrestrial species, stream mapped using ArcMap (Environmental zone 23 to 46 m (75 to 150 ft) wide on systems provide habitat that is in Systems Research Institute, Inc.), a each side of a stream to be adequate constant change. Following high flow Geographic Information Systems (Natural Resource Conservation Service events, stream channels can move from program. 1998, pp. 2–3; Moring et al. 1993, p. one side of a canyon to the opposite 204; Lynch et al. 1985, p. 164), although With respect to length, the side, for example. If we were to buffer widths as wide as 152 m (500 ft) designations were designed to provide designate critical habitat based on the have been recommended for achieving sufficient riverine area for breeding, location of the stream on a specific date, flood attenuation benefits (U.S. Army nonbreeding, and dispersing adult the area within the designation could be Corps 1999, pp. 5–29). In most spikedace and loach minnow, as well as a dry channel in less than one year from instances, however, riparian buffer the publication of the determination, for the habitat needs for juvenile and zones are primarily intended to reduce should a high flow event occur. larval stages of these fishes. In addition, (i.e., buffer) detrimental impacts to the We determined the 91.4-m (300-ft) with respect to width, we evaluated the stream from sources outside the river lateral extent for several reasons. First, lateral extent necessary to support the channel, such as pollutants in adjacent the implementing regulations of the Act PCEs for spikedace and loach minnow. areas. Consequently, while a riparian require that critical habitat be defined The resulting designations take into corridor 23 to 46 m (75 to 150 ft) in by reference points and lines as found account the naturally dynamic nature of width may protect water quality and on standard topographic maps of the riverine systems and floodplains provide some level of riparian habitat area (50 CFR 424.12(c)). Although we (including riparian and adjacent upland protection, a wider area would provide considered using the 100-year areas) that are an integral part of the full protection of riparian habitat floodplain, as defined by the Federal stream ecosystem. For example, riparian because the stream itself can move Emergency Management Agency, we areas are seasonally flooded habitats within the floodplain in response to found that it was not included on (i.e., wetlands) that are major high flow events. A 91.4 m (300 ft) standard topographic maps, and the contributors to a variety of functions buffer would better protect water information was not readily available vital to fish within the associated stream temperatures, as well as reduce the from the Federal Emergency channel (Brinson et al. 1981, pp. 2–61, impacts of high flow events, thereby Management Agency or from the U.S. 2–69, 2–72, 2–75, 2–84 through 2–85; providing additional protection to Army Corps of Engineers for the areas Federal Interagency Stream Restoration critical habitat areas. we are designating. We suspect this is Working Group 1998). Riparian areas To address this issue, the lateral related to the remoteness of many of the filter runoff, absorb and gradually extent of streams included in these stream reaches where these species release floodwaters, recharge designations is 91.4 m (300 ft) to either occur. Therefore, we selected the 91.4- groundwater, maintain streamflow, side of bankfull stage. We believe this m (300-ft) lateral extent, rather than protect stream banks from erosion, and width is necessary to accommodate some other delineation, for four provide shade and cover for fish and stream meandering and high flows, and biological reasons: other aquatic species. Healthy riparian in order to ensure that these (1) The biological integrity and and adjacent upland areas help ensure designations contain the features natural dynamics of the river system are water courses maintain the habitat essential to the conservation of the maintained within this area (i.e., the important for aquatic species (e.g., see species. Bankfull stage is defined as the floodplain and its riparian vegetation USFS 1979, pp. 18, 109, 158, 264, 285, upper level of the range of channel- provide space for natural flooding 345; Middle Rio Grande Biological forming flows, which transport the bulk patterns and latitude for necessary Interagency Team 1993, pp. 64, 89, 94; of available sediment over time. natural channel adjustments to maintain Castelle et al. 1994, pp. 279–281), Bankfull stage is generally considered to appropriate channel morphology and including the spikedace and loach be that level of stream discharge reached geometry, store water for slow release to minnow. Habitat quality within the just before flows spill out onto the maintain base flows, provide protected mainstem river channels in the adjacent floodplain. The discharge that side channels and other protected areas, historical range of the spikedace and occurs at bankfull stage, in combination and allow the river to meander within loach minnow is intrinsically related to with the range of flows that occur over its main channel in response to large the character of the floodplain and the a length of time, govern the shape and flow events). associated tributaries, side channels, size of the river channel (Rosgen 1996, (2) Conservation of the adjacent and backwater habitats that contribute pp. 2–2 to 2–4; Leopold 1997, pp. 62– riparian area also helps to provide to the key habitat features (e.g., 63, 66). The use of bankfull stage and important nutrient recharge and substrate, water quality, and water 91.4 m (300 ft) on either side recognizes protection from sediment and quantity) in these reaches. We have the naturally dynamic nature of riverine pollutants.

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(3) Vegetated lateral zones are widely scale of the maps we prepared under the of the physical and biological features recognized as providing a variety of parameters for publication within the necessary to support spikedace and aquatic habitat functions and values Code of Federal Regulations may not loach minnow use of that habitat. (e.g., aquatic habitat for fish and other reflect the exclusion of such developed aquatic organisms, moderation of water lands. Any such lands inadvertently left Final Critical Habitat Designations temperature changes, and detritus for inside critical habitat boundaries shown We are designating eight units as aquatic food webs) and help improve or on the maps of this final rule have been critical habitat for spikedace and loach maintain local water quality (see U.S. excluded by text in the rule and are not minnow. Within this designation, we Army Corps of Engineers’ Final Notice designated as critical habitat. Therefore, refer to the eight units by subbasin of Issuance and Modification of a Federal action involving these lands Nationwide Permits, March 9, 2000, 65 will not trigger section 7 consultation name, as they are all subbasins to the FR 12818). with respect to critical habitat and the Colorado River Basin. The critical (4) A 91.4-m (300-ft) buffer requirement of no adverse modification habitat areas described below constitute contributes to the functioning of a river, unless the specific action would affect our best assessment at this time of areas thereby supporting the PCEs needed for the PCEs in the adjacent critical habitat. that meet the definition of critical suitable spikedace and loach minnow Eight units were designated as critical habitat. Those eight units are: (1) Verde habitat. habitat based on sufficient elements of River Subbasin, (2) Salt River Subbasin, When determining critical habitat physical and biological features being (3) San Pedro River Subbasin, (4) Bonita boundaries within this final rule, we present to support spikedace and loach Creek Subbasin, (5) Eagle Creek made every effort to avoid including minnow life processes. Some units Subbasin, (6) San Francisco River developed areas such as lands covered contained all of the identified elements Subbasin, (7) Blue River Subbasin, and by buildings, pavement, and other of physical and biological features and (8) Gila River Subbasin. Table 5 structures because such lands lack PCEs supported multiple life processes. Some (spikedace) and Table 6 (loach minnow) for spikedace and loach minnow. The segments contained only some elements show the occupied units.

TABLE 5—OCCUPANCY OF DESIGNATED CRITICAL HABITAT UNITS BY SPIKEDACE

Occupied at time of listing Unit or Currently Translocated documented occupied population after listing

Unit 1—Verde River Subbasin

Verde River ...... Yes ...... Yes ...... No. Granite Creek ...... No ...... No ...... No. Oak Creek ...... No ...... No ...... No. Beaver and Wet Beaver Creek ...... No ...... No ...... No. West Clear Creek ...... No ...... No ...... No. Fossil Creek ...... No ...... Uncertain ...... Yes.

Unit 2—Salt River Subbasin

Salt River Mainstem ...... No ...... No ...... No. Tonto Creek ...... No ...... No ...... No. Greenback Creek ...... No ...... No ...... No. Rye Creek ...... No ...... No ...... No. Spring Creek ...... No ...... No ...... No. Rock Creek ...... No ...... No ...... No.

Unit 3—San Pedro River Subbasin

San Pedro River ...... No ...... No ...... No. Hot Springs Canyon ...... No ...... Yes ...... Yes. Bass Canyon ...... No ...... No ...... No. Redfield Canyon ...... No ...... Uncertain ...... Yes. Aravaipa Creek ...... Yes ...... Yes ...... No. Deer Creek ...... No ...... No ...... No. Turkey Creek ...... No ...... No ...... No.

Unit 4—Bonita Creek Subbasin

Bonita Creek ...... No ...... Uncertain ...... Yes.

Unit 5—Eagle Creek Subbasin

Eagle Creek ...... Yes ...... Yes ...... No.

Unit 6—San Francisco River Subbasin

San Francisco River ...... No ...... Uncertain ...... Yes.

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TABLE 5—OCCUPANCY OF DESIGNATED CRITICAL HABITAT UNITS BY SPIKEDACE—Continued

Occupied at time of listing Unit or Currently Translocated documented occupied population after listing

Unit 7—Blue River Subbasin

Blue River ...... No ...... No ...... No. Campbell Blue Creek ...... No ...... No ...... No. Little Blue Creek ...... No ...... No ...... No. Pace Creek ...... No ...... No ...... No. Frieborn Creek ...... No ...... No ...... No. Dry Blue Creek ...... No ...... No ...... No.

Unit 8—Gila River Subbasin

Gila River ...... Yes ...... Yes ...... No. West Fork Gila River ...... Yes ...... Yes ...... No. Middle Fork Gila River ...... Yes ...... Yes ...... No. East Fork Gila River ...... Yes ...... Yes ...... No. Mangas Creek ...... Yes * ...... No ...... No. * Spikedace documented after 1986 listing, including: Mangas Creek, first occupied in 1999.

TABLE 6—OCCUPANCY OF DESIGNATED CRITICAL HABITAT UNITS BY LOACH MINNOW

Occupied at Currently Translocated Stream segment time of listing occupied population

Unit 1—Verde River Subbasin

Verde River ...... No ...... No ...... No. Granite Creek ...... No ...... No ...... No. Oak Creek ...... No ...... No ...... No. Beaver and Wet Beaver Creek ...... No ...... No ...... No. Fossil Creek ...... No ...... Uncertain ...... Yes.

Unit 2—Salt River Subbasin

White River Mainstem ...... Yes ...... Yes ...... No. East Fork White River ...... Yes ...... Yes ...... No. East Fork Black River ...... No ...... No ...... No. North Fork East Fork Black River ...... Yes* ...... Yes ...... No. Boneyard Creek ...... Yes* ...... No ...... No. Coyote Creek ...... No ...... Yes ...... No.

Unit 3—San Pedro River Subbasin

San Pedro River ...... No ...... No ...... No. Hot Springs Canyon ...... No ...... Yes ...... Yes. Bass Canyon ...... No ...... No ...... No. Redfield Canyon ...... No ...... Uncertain ...... Yes. Aravaipa Creek ...... Yes ...... Yes ...... No. Deer Creek ...... Yes* ...... Yes ...... No. Turkey Creek ...... Yes* ...... Yes ...... No.

Unit 4—Bonita Creek Subbasin

Bonita Creek ...... No ...... Uncertain ...... Yes.

Unit 5—Eagle Creek Subbasin

Eagle Creek ...... Yes* ...... Yes ...... No.

Unit 6—San Francisco River Subbasin

San Francisco River ...... Yes ...... Yes ...... No. Tularosa River ...... Yes ...... Yes ...... No. Negrito River ...... Yes* ...... Yes ...... No. Whitewater Creek ...... Yes ...... No ...... No.

Unit 7—Blue River Subbasin

Blue River ...... Yes ...... Yes ...... No. Campbell Blue Creek ...... Yes* ...... Yes ...... No.

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TABLE 6—OCCUPANCY OF DESIGNATED CRITICAL HABITAT UNITS BY LOACH MINNOW—Continued

Occupied at Currently Translocated Stream segment time of listing occupied population

Little Blue Creek ...... Yes* ...... No ...... No. Pace Creek ...... Yes* ...... Yes ...... No. Frieborn Creek ...... Yes* ...... Yes ...... No. Dry Blue Creek ...... Yes* ...... Yes ...... No.

Unit 8—Gila River Subbasin

Gila River ...... Yes ...... Yes ...... No. West Fork Gila River ...... Yes ...... Yes ...... No. Middle Fork Gila River ...... Yes ...... Yes ...... No. East Fork Gila River ...... Yes ...... Yes ...... No. Mangas Creek ...... Yes* ...... Yes ...... No. Bear Creek ...... Yes* ...... Yes ...... No. * Loach minnow documented after 1986 listing, including: North Fork East Fork Black River in 1996; Boneyard Creek in 1996; Deer Creek in 1996; Turkey Creek in 1996; Eagle Creek in 1994; Negrito Creek in 1998; Campbell Blue Creek in 1987; Little Blue Creek in 1994; Dry Blue Creek in 1998; Frieborn Creek in 1998; Pace Creek in 1998; Mangas Creek in 1999; and Bear Creek in 2005.

The approximate area of each critical habitat unit is shown in Table 7.

TABLE 7—LENGTH OF DESIGNATED CRITICAL HABITAT UNITS FOR SPIKEDACE AND LOACH MINNOW [Length estimates reflect all land within critical habitat unit boundaries]

Federal State Local or tribal* Private Total Unit Km Mi Km Mi Km Mi Km Mi Km Mi

1 ...... 155 96 4 2 3 2 133 82 295 182 2 ...... 117 72 0 0 0 0 14 9 131 81 3 ...... 37 23 4 2 2 2 31 19 74 46 4 ...... 16 10 0 0 0 0 8 5 24 15 5 ...... 19 12 0 0 0 0 8 5 27 17 6 ...... 155 96 3 2 0 0 70 44 228 142 7 ...... 93 58 0 0 0 0 15 9 108 67 8 ...... 161 100 10 6 0 0 88 55 259 161

Total ...... 753 467 21 12 5 4 367 228 1146 711 Note: Area sizes may not sum due to rounding. Total figures vary from those in the text description. The additional stream miles fall within dif- ferent landowner categories, which were not summarized here.

We present brief descriptions of all The Verde River and its tributaries within this unit meet criteria for 2a units, and reasons why they meet the included within these designations are streams as defined in the ruleset for definition of critical habitat for in Yavapai and Gila Counties, Arizona. spikedace, indicating that they were not spikedace and loach minnow or both, From Sullivan Lake, near its occupied at listing and would serve as below. Table 8 at the end of this section headwaters, the Verde River flows for an extension of habitat in the unit. For summarizes the criteria from the ruleset 201 km (125 mi) downstream to loach minnow, the Verde River and its (above) under which units were Horseshoe Reservoir. This reach of the tributaries meet the criteria for 2b included. Verde River is unique in comparison to streams under the ruleset, indicating other desert streams such as the Salt or Unit 1: Verde River Subbasin that they were not occupied at listing, Gila Rivers in that it is free-flowing and but would expand the geographic Within the Verde River Subbasin, we perennial (Sullivan and Richardson distribution of the species. We are designating 294.5 km (183.0 mi) 1993, pp. 19–21; The Nature determined that those areas classified as from Sullivan Lake downstream on the Conservancy 2010). Verde River and its tributaries Granite Verde River Mainstem. The Verde 2a or 2b are essential to the conservation Creek, Oak Creek, Beaver and Wet River was considered occupied at listing of both species because they contain Beaver Creek, West Clear Creek, and for spikedace, but not for loach minnow. suitable habitat, and securing both Fossil Creek for spikedace. For loach None of the tributaries within this unit species in this watershed will contribute minnow, we are designating 231.5 km were occupied at listing for either significantly to their recovery by (143.9 mi) from Sullivan Lake species. For spikedace, the Verde River protecting occupied habitat for downstream on the Verde River and its meets criteria for a 1a stream as defined spikedace, extending protection to tributaries Granite Creek, Oak Creek, in the ruleset, indicating that it was tributary streams which will serve as Beaver and Wet Beaver Creek, and occupied at listing and has the features extensions of occupied habitat, and by Fossil Creek. All of the area in the essential to support life-history protecting habitat for loach minnow designation for loach minnow falls functions essential for the conservation which will allow for them to expand within the designation for spikedace. of the species. All of the tributaries their current distribution. Additional

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details on areas designated under Unit Clear Creek is on private and Coconino emphasis in this area is on management 1 are provided below. National Forest lands. West Clear Creek of riparian habitat and maintenance of Spikedace Only. For spikedace, we was not considered occupied at listing; native fish diversity. The AGFD parcel are designating as critical habitat 170.5 however, one record exists for spikedace includes approximately 1.6 km (1.0 mi) km (106.0 mi) of the Verde River from from West Clear Creek (from 1937; ASU of Granite Creek; the remaining Sullivan Lake downstream to the 2002). West Clear Creek does have landownership is private. confluence with Fossil Creek. The Verde suitable habitat for spikedace, and is Both Species. There are no known River mainstem was considered under consideration as a translocation records of spikedace or loach minnow occupied at the time of listing (ASU site for spikedace by a multi-agency from Granite Creek. However, because 2002, 51 FR 23679). While current team. We consider this tributary of its suitability, confluence with occupancy remains uncertain, the Verde essential for the conservation of the occupied portions of the Verde River, River is essential to the conservation of species based on the presence of and the opportunities it provides for the species. It currently contains suitable habitat, its past records of extension of occupied habitat for suitable habitat for all life stages of occupancy, and its consideration for spikedace and recovery habitat for loach spikedace (PCE 1); has an appropriate translocation of spikedace, which minnow, this designated portion of food base (PCE 2); consists of perennial indicates the area will serve as an Granite Creek is essential to the streams with no or low levels of important extension of the area conservation of both species. Granite pollutants (PCEs 3 and 4); and has an occupied by spikedace in the Verde Creek is a perennial tributary of the appropriate hydrologic regime to River watershed. Verde River, and its confluence with the maintain suitable habitat characteristics Loach Minnow Only. We are Verde River occurs in that portion of the (PCE 6). The Verde River is the only designating as critical habitat 118.5 km river with the highest species density occupied stream system in this (73.6 mi) of the Verde River from for spikedace. Granite Creek meets geographic portion of the species’ Sullivan Lake downstream to the criteria for a 2a stream for spikedace, historical range, and represents one of confluence with Wet Beaver Creek. The serving as an extension of occupied four units in this designation in which Verde River was not considered spikedace habitat in the Verde River. spikedace are most likely to be found. occupied by loach minnow at listing; For loach minnow, Granite Creek meets Protection of the species in this portion however, there are later records of loach criteria for a 2b stream, expanding the of the historical range will contribute to minnow from the Verde River mainstem current distribution of the species the long-term conservation of the near its confluence with Granite Creek, within its historically occupied range. species. As noted above, spikedace are at the mouth of Beaver Creek, and in We are designating as critical habitat currently restricted to 10 percent of portions of the Verde River near Beaver 54.3 km (33.7 mi) of Oak Creek from the their historical range, so that every Creek (ASU 2002). Subsequent surveys confluence with the Verde River remaining population is important to have failed to detect loach minnow in upstream to the confluence with an their recovery. Critical habitat the Verde River or its tributaries. unnamed tributary near the Yavapai and designation will ensure protection of the However, the Verde River is located in Coconino County boundary. The lower habitat in this occupied unit which in the far northwestern portion of the portions of the creek contain suitable, turn will contribute to conserving the species’ range, and is the only river although degraded, habitat. Above the species in this area. Finally, spikedace system in that geographic portion of the unnamed tributary, the creek becomes in the Verde River are genetically species’ range. Therefore, because the unsuitable due to urban and suburban (Tibbets 1993, pp. 25–27, 34) and Verde River contains suitable habitat development, increasing gradient, and morphologically (Anderson and and will allow for the species’ range to substrate size. Oak Creek occurs on a Hendrickson 1994, pp. 148, 154) be expanded; we conclude that the mix of private and Coconino National distinct from all other spikedace Verde River is essential to the Forest lands. populations. conservation of the loach minnow. Oak Creek was not considered The essential features in this unit may Within the Verde River Subbasin, occupied at listing for spikedace or require special management approximately 1.2 km (0.8 mi) of the loach minnow; however, we consider it considerations and protections due to Verde River and 0.2 km (0.1 mi) of to be essential for the conservation of water diversions; existing and proposed Beaver Creek/Wet Beaver Creek occur both species. It contains suitable habitat groundwater pumping potentially on lands owned by the Yavapai-Apache for both species. A multi-agency team is resulting in drying of habitat; residual Nation. These areas have been excluded currently evaluating Oak Creek as a effects of past livestock grazing and from the final critical habitat translocation site for spikedace and impacts to uplands riparian vegetation designations under section 4(b)(2) of the loach minnow. As noted below in the and the stream channel; human Act (see ‘‘Application of Section 4(b)(2) Fossil Creek discussion, areas suitable development of surrounding areas; of the Act’’ section below for additional for such actions are rare in the desert increased recreation including off-road information). southwest. As a perennial tributary of vehicle use; abnormally dry drought the Verde River, Oak Creek contains the conditions (University of Nebraska- Verde River Tributaries—Spikedace and physical features that provide an Lincoln 2011, p. 1); and competition Loach Minnow important extension area for spikedace with or predation by nonnative aquatic For both spikedace and loach and would help to expand the current species. minnow, the designation of critical distribution of loach minnow within its We are designating as critical habitat habitat for each species includes 3.2 km historical range. for spikedace 10.9 km (6.8 mi) of West (2.0 mi) of Granite Creek from the We are designating as critical habitat Clear Creek from the confluence with confluence with the Verde River 33.3 km (20.7 mi) of Beaver and Wet the Verde River upstream to the upstream to an unnamed spring. Above Beaver Creek from the confluence with confluence with Black Mountain the unnamed spring, flows are the Verde River upstream to the Canyon. Gradient and channel insufficient to maintain these species. confluence with Casner Canyon. Beaver morphology changes above Black Granite Creek occurs predominantly on and Wet Beaver Creek occur on a mix Mountain Canyon make the upstream lands managed by the AGFD in their of private, National Park, and Coconino area unsuitable for spikedace. West Upper Verde Wildlife Area. The primary National Forest lands. Neither Beaver

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nor Wet Beaver Creek were considered stream. The translocation of spikedace (White River, East Fork White River) or occupied at listing by either spikedace and loach minnow into Fossil Creek is determined to be occupied after listing or loach minnow. Beaver Creek and its part of a larger conservation planning (North Fork East Fork Black River, upstream extension in Wet Beaver Creek effort to restore a native fishery to the Boneyard Creek). Therefore, the East historically supported spikedace (ASU creek. Fork Black River and Coyote Creek meet 2002; AGFD 2004) and contains criteria for 2a streams under the ruleset, Unit 2: Salt River Subbasin suitable, although degraded, habitat. indicating they would serve as an There is one record for loach minnow We are not designating any portion of extension to occupied habitat on the from Beaver Creek but none from Wet the mainstem Salt River as critical North Fork East Fork Black River, while Beaver Creek. There is an additional habitat for spikedace or loach minnow White River, East Fork White River, record for loach minnow on the at this time. Those portions below North Fork East Fork Black River, and mainstem Verde River approximately Theodore Roosevelt Reservoir have been Boneyard Creek meet criteria for 1a 7.2 km (4.5 mi) above the confluence altered by numerous dams and streams under the ruleset. The unit with Beaver and Wet Beaver Creek (ASU reservoirs, permanently limiting the descriptions and their rationale for 2002; AGFD 2004). natural flow regime and resulting in inclusion are described below. Beaver and Wet Beaver creeks are regulated flows. Those portions of the Spikedace Only. The Salt River essential to the conservation of both Salt River above the Reservoir support Subbasin is a significant portion of species, and meet criteria 2a under the three historical records of spikedace spikedace historical range but currently ruleset for spikedace as a stream that near the confluence with Cibecue Creek has no known extant populations of would extend occupied habitat. They (from 1950; ASU 2002). However, the spikedace. None of the streams within meet the criteria for a 2b stream under majority of the Salt River, as well as the the Salt River Subbasin were known to the ruleset for loach minnow, expanding lower portions of Cibecue Creek, are be occupied at listing and therefore the species range. As noted under canyon bound. While spikedace may meet the criteria for 2b streams under Granite and Oak creeks, habitat within occur in or travel through canyon areas, the ruleset and are considered essential this portion of the species’ ranges is long stretches of canyon-bound rivers to the conservation of the species. Large limited to the Verde River Unit, and typically do not support the wider, areas of the subbasin are unsuitable, including the Verde and a few of its shallower streams in which spikedace either because of topography or because perennial tributaries like Beaver and occur. Canyons are typically associated of reservoirs and other stream-channel Wet Beaver Creeks expands the overall with a bedrock substrate, rather than the alterations. However, the presence of unit size, adding to available habitat, as sand, gravel, or cobble over which substantial areas of USFS lands, and well as expanding recovery potential for spikedace are typically found. Due to its suitable habitat in some stream both species in this portion of their limited available habitat, limited habitat segments makes this a promising historical ranges. suitability, and permanent alteration for subbasin for the reestablishment of We are including within these reservoirs, we have concluded that the spikedace, and conservation efforts are designations 22.2 km (13.8 mi) of Fossil PCEs for spikedace are not present at under way (see Spring Creek below). All Creek extending from the confluence this time in the Salt River, in part due stream segments designated for with the Verde River upstream to the to permanent habitat alteration. spikedace in the Salt River Subbasin are confluence with an unnamed tributary. While we are not designating any in Gila County, Arizona. Fossil Creek was not known to be habitat on the mainstem Salt River, we While it was not considered occupied occupied by spikedace or loach minnow are designating critical habitat for both at listing, there are limited records for at listing. Historically, sufficient flows spikedace and loach minnow on other spikedace from Tonto Creek (from 1937 were lacking in this creek but, in 2005, streams within the Salt River Subbasin. only; ASU 2002). We are including following decommissioning of the Within the Salt River Subbasin, there is within the designation 47.8 km (29.7 Childs-Irving Hydroelectric Power no overlap between the areas we are mi) of Tonto Creek from the confluence Plant, formerly diverted flows were designating for spikedace and loach with Greenback Creek upstream to the returned to Fossil Creek (Robinson minnow. For spikedace, the designation confluence with Houston Creek. Tonto 2009b, p. 3). Spikedace and loach includes a total of 98.6 km (61.3 mi) of Creek below Greenback Creek is minnow were translocated into this Tonto Creek and its tributaries Rye, influenced by Theodore Roosevelt stream in 2007 (Carter 2007a, p. 1), and Greenback, and Spring Creeks, as well Reservoir, resulting in unsuitable additional fish were added in 2008 as Rock Creek, which is a tributary to habitat below Greenback Creek. Those (Carter 2008a, pp. 1–2) and 2010 Spring Creek. None of these streams portions of Tonto Creek above the (Crowder, 2010, pers. comm.). Fossil were known to be occupied by confluence with Houston Creek are of a Creek occurs primarily on Federal spikedace at listing, and therefore are gradient and substrate that are not lands, forming the boundary between classified as 2b streams under the suitable to spikedace. Tonto Creek is the Coconino and Tonto National ruleset, meaning that their occupancy within the historical range of spikedace, Forests. by spikedace would allow for an and occupancy of the creek would serve We consider this area to be essential increased distribution of the species to increase the distribution of the to the conservation of the species. With within its historical range. species, as well as add to available, the severe reductions in the species’ For loach minnow, we are designating suitable habitat. We therefore consider overall distribution, and a translocation a total of 32.0 km (19.9 mi) of the East the designated streams in this subbasin effort under way, Fossil Creek is Fork Black River, its tributaries Coyote to be essential to the conservation of the essential to the recovery of spikedace Creek and North Fork East Fork Black species. and loach minnow because, if River, and Boneyard Creek, a tributary We are designating 15.1 km (9.4 mi) successful, the translocation effort will to the North Fork East Fork Black. While of Greenback Creek beginning at the extend the distribution of spikedace in East Fork Black River and Coyote Creek confluence with Tonto Creek and the Verde River watershed, meeting were not considered occupied at listing, continuing upstream to the confluence criteria for a 2a stream, and expand the the remainder of the streams included with Lime Springs. Portions of distribution of loach minnow within its in the Salt River Subbasin for loach Greenback Creek are intermittent, but historical range, meeting criteria for a 2b minnow were either occupied at listing may connect Greenback Creek to Tonto

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Creek during seasonal flows. While intermittent flows before entering the Fork East Fork Black River and there are no known records of spikedace Lake Pleasant reservoir created by Boneyard Creek. from Greenback Creek, the Salt River Pleasant Dam. Suitable habitat on the The presence of multiple PCEs, its Subbasin is a significant portion of Agua Fria River is therefore minimal, occupied status, and the presence of a spikedace historical range, and there are with perennial stretches mixed with distinct genetic population makes the limited areas of suitable habitat. The predominantly intermittent stretches, North Fork East Fork Black River and suitable habitat in Greenback Creek, its and isolated from any mainstem system Boneyard Creek essential to the connection with Tonto Creek, and the by a large reservoir. For these reasons, conservation of loach minnow. We are fact that it occurs almost entirely on we have concluded that the Agua Fria including within the designation 7.1 km Federal lands makes this area an River is not essential to the conservation (4.4 mi) of the North Fork East Fork important expansion area for spikedace of spikedace at this time. Black River extending from the recovery, and we therefore consider it Loach Minnow Only. Areas included confluence with East Fork Black River essential to the conservation of for loach minnow within the Salt River upstream to the confluence with an spikedace. Subbasin include portions of the East unnamed tributary, and 2.3 km (1.4 mi) We are including within the Fork Black River, North Fork East Fork of Boneyard Creek extending from the designation 2.8 km (1.8 mi) of Rye Creek Black River, and Coyote and Boneyard confluence with the North Fork East from the confluence with Tonto Creek creeks. The East Fork Black River, North Fork Black River upstream to the upstream to the confluence with Brady Fork East Fork Black River, Coyote, and confluence with an unnamed tributary. Canyon. There are no known records of Boneyard creeks are in Apache and Above this tributary, the river has finer spikedace from Rye Creek. The entire Greenlee counties. All of these streams substrate and lacks riffle habitat, making portion of the designation is perennial. are perennial (The Nature Conservancy it unsuitable for loach minnow. The As with Greenback Creek, Rye Creek 2010). North Fork East Fork Black River is serves as connected perennial stream The Salt River Subbasin encompasses currently occupied (ASU 2002; Gurtin, habitat that expands the available a significant portion of loach minnow 2004, pers. comm.; Robinson et al. suitable habitat associated with Tonto historical range, and the Salt River 2009b, p. 1), and is presumed to have Creek and the Salt River Subbasin; mainstem was known at listing to have been occupied at listing. Boneyard therefore, we believe it is essential to historical records near the U.S. 60 (from Creek is also occupied, and is connected the conservation of the species. 1950; ASU 2002). The Black and White to the North Fork East Fork Black River, We are including within the rivers join to form the Salt River. The which is occupied (ASU 2002; Gurtin, designation 27.2 km (16.9 mi) of Spring North Fork East Fork Black River, and 2004, pers. comm.; Robinson et al. Creek from the confluence with Tonto Boneyard Creek were newly discovered 2009b, p. 1), and contains suitable Creek upstream to its confluence with as occupied after listing, and meet the habitat for loach minnow. North Fork Sevenmile Canyon. Portions of Spring criteria for 1a streams. We have no East Fork Black River contains suitable Creek are perennial, while the lower records of loach minnow from East Fork habitat for all life stages of loach portions are intermittent. The perennial Black River or Coyote Creek, and have minnow (PCE 1); has an appropriate portions of Spring Creek provide designated these areas as 2a streams. food base (PCE 2); consists of perennial suitable habitat, and likely connect to Within the Salt River Subbasin, we streams with no or low levels of Tonto Creek during seasonal flows, are designating a total of 32.0 km (20 pollutants (PCEs 3 and 4); and has an thereby expanding the available suitable mi) of the East Fork Black River and its appropriate hydrologic regime to habitat for spikedace. In addition, for tributary Coyote Creek, and the North maintain suitable habitat characteristics both Spring and Rock (see below) Fork East Fork Black River and its (PCE 6). creeks, conservation efforts for tributary Boneyard Creek. The presence The portions of the North Fork East spikedace are under way. The feasibility of suitable habitat, and the presence of Fork Black River and Boneyard Creek of constructing a barrier and a distinct genetic population in the included within this designation are translocating spikedace to Spring Creek, adjoining North Fork East Fork River, entirely on Apache-Sitgreaves National a tributary to Tonto Creek, has been makes these streams important Forests lands. Essential features may initiated with draft NEPA documents expansion areas for loach minnow, and require special management or under development. they are therefore essential to the protection from the residual effects of Finally, we are including within the conservation of the species. We are past livestock grazing and impacts to designation 5.7 km (3.6 mi) of Rock including within this designation 19.1 uplands, riparian vegetation, and the Creek from its confluence with Spring km (11.9 mi) of the East Fork Black stream; and competition with and Creek upstream to its confluence with River extending from the confluence predation by nonnative aquatic species. Buzzard Roost Canyon. There are no with the West Fork Black River Native trout species are regularly known records of spikedace from Rock upstream to the confluence with an stocked into the Black River, possibly Creek; however, Rock Creek will further unnamed tributary just downstream of resulting in increased competition for expand the available habitat in the Salt Boneyard Creek and 3.4 km (2.1 mi) of resources and predation by trout. The River Subbasin. The suitable habitat, Coyote Creek, extending from the Wallow Fire burned through this stream perennial flows, and location within the confluence with East Fork Black River complex in 2011, and there may be Salt River Subbasin make Rock Creek upstream to the confluence with an temporary increases in sediment carried essential to the conservation of the unnamed tributary. This area is into the stream from burned areas in the spikedace. connected to the North Fork East Fork uplands. Within the Salt River Subbasin, a Black River, which is occupied by loach White River and its tributary East single record exists for spikedace on the minnow (Lopez, 2000, pers. comm.; Fork White River were considered Agua Fria River, which is located on the ASU 2002; Gurtin, 2004, pers. comm., occupied at listing, and meet criteria for extreme western edge of the species’ Robinson et al. 2009b, p. 1). East Fork 1a streams under the ruleset. We range in Yavapai and Maricopa Black River and Coyote Creek contain included within the designation 29.0 Counties, Arizona. The Agua Fria River suitable habitat for loach minnow, and km (18.0 mi) of the White River from the supports stretches of perennial flows will allow for expansion of the existing confluence with the Black River interspersed with sections of population of loach minnow in North upstream to the confluence with the

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North and East Forks of the White River, either species. Both Hot Springs and this unit may require special as well as approximately 17.2 km (10.7 Redfield canyons currently support management considerations or mi) of the East Fork White River from translocated populations of spikedace protection due to contaminants issues the confluence with North Fork White and loach minnow that were placed into with lead, arsenic, and cadmium; River upstream to the confluence with the streams in 2007 (Robinson 2008a, surface and groundwater removal; Bones Canyon. These areas have been pp. 1, 15–16). They, along with Bass limited recreation; severe drought excluded from the final critical habitat Canyon, meet criteria for 2a streams for (University of Nebraska-Lincoln 2011, p. designations under section 4(b)(2) of the both species. 1); and channelization in upstream Act (see ‘‘Application of Section 4(b)(2) We proposed as critical habitat 60.0 portions (Stefferud and Reinthal 2005, of the Act’’ section below for additional km (37.2 mi) on the upper San Pedro pp. 36–38). information). River from the international border with We are including within these In previous critical habitat Mexico downstream to the confluence designations 3.7 km (2.3 mi) of Deer designations, we have included portions with the Babocomari River. However, Creek from the confluence with of Tonto Creek, Rye Creek, and due to concerns for national security, Aravaipa Creek upstream to the Greenback Creek as critical habitat for the San Pedro River in its entirety has boundary of the Aravaipa Wilderness. loach minnow. These areas have no been excluded from the final critical Above this point, habitat is no longer historical records for loach minnow. habitat designations under section suitable for spikedace or loach minnow. Because there are other suitable areas 4(b)(2) of the Act (see ‘‘Application of We are also including 4.3 km (2.7 mi) for loach minnow within this portion of Section 4(b)(2) of the Act’’ section below of Turkey Creek from the confluence the species’ range, we believe the for additional information). In addition, with Aravaipa Creek upstream to the limited mileage and habitat features in in response to comments received, we confluence with Oak Grove Canyon. Tonto Creek and its tributaries are less have reduced the overall mileage Above this point, flows are not suitable important to the overall conservation of included for Hot Springs and Redfield for spikedace or loach minnow. loach minnow, and our current canyons. Please see the ‘‘Summary of Both Deer and Turkey creeks are assessment is that they are therefore not Changes from Proposed Rule’’ for more considered occupied by loach minnow essential to the conservation of the detail. with the species first detected in 1996, species. With the removal of the San Pedro and both creeks are currently occupied and decreased mileage on Hot Springs by loach minnow. Each of these Unit 3: San Pedro Subbasin and Redfield Canyon, we are including tributary streams contains suitable Within the San Pedro Subbasin, we within these designations a total of 74.1 habitat for all life stages of loach are designating 74.1 km (46.1 mi) of km (46.1 mi) for spikedace and loach minnow (PCE 1); have appropriate food habitat on Aravaipa Creek and its minnow. This area includes 44.9 km bases (PCE 2); consist of perennial tributaries Deer and Turkey creeks, (27.9 mi) of Aravaipa Creek from the streams with no or low levels of Redfield Canyon, and Hot Springs confluence with the San Pedro River pollutants (PCEs 3 and 4); and have an canyons and its tributary Bass Canyon. upstream to the confluence with Stowe appropriate hydrologic regime to All areas within this subbasin were Gulch. Stowe Gulch is the upstream maintain suitable habitat characteristics proposed for both species. Aravaipa limit of sufficient perennial flows to (PCE 6). Both Deer and Turkey creeks Creek, Redfield and Hot Spring canyons support spikedace and loach minnow, occur on lands managed by the BLM. and their tributaries included within and no records of either species are The essential features in these two these designations are in Cochise, Pinal, known from above this point. Aravaipa streams may require special and Graham counties, Arizona. The Creek currently supports one of the management due to surface and ground majority of Redfield Canyon, Hot largest remaining populations of water removal; limited recreation; Springs Canyon, and Aravaipa Creek are spikedace and loach minnow, and has severe drought (University of Nebraska- perennial, with small downstream areas been monitored regularly since 1943 Lincoln 2011, p. 1); occasional issues considered formerly perennial (The (ASU 2002; Stefferud and Reinthal with nonnative aquatic species; and Nature Conservancy 2010) but still 2005, pp. 15–21; AGFD 2004; Reinthal proposed utilities projects, such as the connected during high flow events. 2011, pp. 1–2). SunZia Southwest Transmission Project, Streams included within this subbasin The long-term presence and current which is currently in the study phase occur primarily on BLM, State, and occupancy by both species, makes this (Service 2010b, pp. 1–7). In addition, private lands. area essential to their conservation. Turkey Creek experiences low flows The San Pedro Subbasin contains Aravaipa Creek is unique in that it through part of most years, limiting streams that are known to have been supports an intact native fish fauna occupancy by loach minnow during occupied by both species at listing, comprising seven species (Stefferud and those times. Occupancy by loach some of which are currently occupied, Reinthal 2005, p. 11). It contains minnow, as well as the presence of and some with translocated populations suitable habitat for all life stages of perennial water and other key features of spikedace and loach minnow. spikedace and loach minnow (PCE 1); indicate that Deer and Turkey creeks are Aravaipa Creek was occupied by both has an appropriate food base (PCE 2); likely suitable for spikedace as well. species at listing, and is classified as a consists of perennial flows (PCE 3); has Because they are tributaries to Aravaipa 1a stream for both species. Deer and no nonnative aquatic species, or levels Creek, they meet criteria for a 2a stream Turkey creeks are considered occupied of nonnative aquatic species are for spikedace. We have therefore by loach minnow due to the species sufficiently low to allow for persistence determined they are essential to the being newly detected after listing in of both species (PCE 5); and has an conservation of spikedace. 1996 (ASU 2002), but were not appropriate hydrologic regime to We have included within these considered occupied at listing by maintain suitable habitat characteristics designations 9.3 km (5.8 mi) of stream spikedace and therefore meet criteria for (PCE 6). in Hot Springs Canyon from the 1a streams for loach minnow, and for 2a Land ownership at Aravaipa Creek is confluence with the San Pedro River streams for spikedace. Hot Springs, predominantly BLM, with large parcels upstream to the confluence with Bass Redfield, and Bass canyons were not of private and State land on either end Canyon. (The stream in Hot Springs known to be occupied at listing by of the river. The essential features in Canyon is not named and is known only

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as Hot Springs Canyon.) Hot Springs were translocated to the site (Robinson pupfish into Bonita Creek. Spikedace Canyon occurs on a mix of State, et al. 2010b, pp. 20–22), and contains and loach minnow were translocated private, and BLM lands. There are no suitable habitat for both spikedace and into the lower portions of Bonita Creek known records of spikedace or loach loach minnow. The most recent surveys in 2008 (Robinson, 2008c, pers. comm.). minnow from Hot Springs Canyon, but of Redfield Canyon (Robinson et al. In 2009, an additional small population it is within the geographical range 2010b) did not detect spikedace; of spikedace was placed above the City known to be occupied by both species, however, the reintroduction project is of Safford’s infiltration gallery, but and meets criteria as a 2a stream for not yet complete. The current below the southern boundary of the San both species. occupancy by loach minnow and the Carlos Indian Reservation. However, Following coordination by a multi- presence of suitable habitat, which due to a reinvasion by nonnative agency team, spikedace and loach extends the available habitat in this species, augmentations of spikedace and minnow were translocated into Hot unit, make this area essential to the loach minnow are temporarily on hold Springs Canyon in 2007, with conservation of both species. at Bonita Creek. augmentations in 2008, 2009, 2010, and We are including within these As noted above for Fossil Creek, Hot 2011 (Robinson 2008a, pp. 1, 15–16; designations 5.5 km (3.4 mi) of stream Springs Canyon, and Redfield Canyon, Robinson et al. 2010a, pp. 4–5; in Bass Canyon from the confluence there are limited opportunities for Robinson et al. 2010b, pp. 5–6, 20–22; with Hot Springs Canyon upstream to translocating or reintroducing Robinson and Crowder 2011, In Draft, p. the confluence with Pine Canyon. (The populations of spikedace and loach 9). Spikedace and loach minnow have stream in Bass Canyon is not named and minnow, and the current reduction in been captured each year since the is known only as Bass Canyon). Bass the species’ distribution necessitates project began (Robinson et al. 2010b, p. Canyon occurs on private and BLM that additional populations be 7) indicating that conditions in the lands. There are no known records of established to recover the species. stream allow the species to persist year spikedace or loach minnow from Bass Bonita Creek is considered essential to to year; however, insufficient time has Canyon, but it is within the the survival and recovery of spikedace elapsed to allow for evaluation of the geographical range known to be and loach minnow because it contains ultimate success of the translocation occupied by both species. In addition, suitable habitat for all life stages of both effort. spikedace and loach minnow have been species, occurs within the historical Hot Springs Canyon contains suitable translocated into Hot Springs Canyon, to range of both species, and allows for the habitat for both spikedace and loach which Bass Canyon is connected and is expansion of the geographic distribution minnow, is currently occupied by a a tributary stream (see discussion above of the species’ ranges. translocated population, and serves as under Hot Springs Canyon). Bass Unit 5: Eagle Creek Subbasin an extension of habitat in this subbasin. Canyon contains suitable habitat for We have therefore determined this area spikedace and loach minnow, has been We are including within these essential to the conservation of the two identified as a potential stream for designations 26.5 km (16.5 mi) of Eagle species. restoration activities, and meets criteria Creek from the Freeport-McMoRan We are including within this for a 2a stream under the ruleset. Bass (FMC) diversion dam upstream to the designation 6.5 km (4.0 mi) of stream in Canyon serves as an extension to Hot confluence with East Eagle Creek in Redfield Canyon from the confluence Springs Canyon fish populations. We Greenlee and Graham Counties, with the San Pedro River upstream to therefore consider it to be essential to Arizona. Eagle Creek is a largely the confluence with Sycamore Canyon. the conservation of both species. perennial system (The Nature (The stream in Redfield Canyon is not Conservancy 2010). Eagle Creek occurs named and is known only as Redfield Unit 4: Bonita Creek Subbasin primarily on San Carlos Apache Tribal Canyon.) Above Sycamore Canyon, Within the Bonita Creek Subbasin, we and Apache-Sitgreaves National Forests’ perennial water becomes very scarce, are including 23.8 km (14.8 mi) of lands, along with small parcels of State, and the habitat becomes steeper, and Bonita Creek from the confluence with private, and BLM lands. Spikedace and more canyon-confined, thus making it the Gila River upstream to the loach minnow are both considered unsuitable for spikedace and loach confluence with Martinez Wash in currently present, but likely in small minnow. The majority of Redfield Graham County, Arizona. The Bonita numbers (Marsh 1996, p. 2; ASU 2002; Canyon occurs on State lands, with Creek subbasin is not known to have Bahm and Robinson 2009a, p. 1). smaller areas of private and Federal been occupied at listing but is within Eagle Creek was known to be (BLM) lands. Although there are no the geographical range known to have occupied at the time of listing by known records of spikedace or loach been occupied by both species. It meets spikedace, and therefore meets criteria minnow from Redfield Canyon, it is criteria for a 2b stream for both species for a 1a stream under our ruleset. It was within the geographical range known to under our ruleset. Land ownership at determined to be occupied by loach be occupied by both species, and meets Bonita Creek is almost entirely Federal minnow after listing, in 1994 (ASU criteria as a 2a stream for both species. (BLM), with a few small private parcels. 2002), and therefore meets criteria for a Redfield Canyon was specifically The designations end at the San Carlos 1a stream for loach minnow under our identified within the species’ Recovery Indian Reservation boundary. ruleset. Eagle Creek contains suitable Plan as an area with potential for Cooperative conservation efforts for habitat for all life stages of spikedace spikedace (Service 1991a, p. 21; Service spikedace and loach minnow are and loach minnow (PCE 1); has an 1991b, p. 20). Following coordination ongoing in Bonita Creek. A appropriate food base (PCE 2); consists by a multi-agency team, spikedace and Memorandum of Understanding is in of perennial flows with no or low levels loach minnow were translocated into place with the City of Safford regarding of pollutants (PCEs 3 and 4); and has an Redfield Canyon in 2007, with water management for Bonita Creek as appropriate hydrologic regime to augmentations in 2008 (Robinson part of this effort. To date, those maintain suitable habitat characteristics 2008b, pp. 1, 15–16; Robinson et al. activities have resulted in the removal (PCE 6) above the barrier, which serves 2010a, pp. 4–5, Robinson et al. 2010b, of nonnative fish species and as the endpoint of this unit. pp. 5–6, 20–22). Redfield Canyon translocation of spikedace, loach Approximately 27.5 km (17.1 mi) of currently supports loach minnow that minnow, Gila topminnow, and desert Eagle Creek in Graham County are on

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the San Carlos Apache Reservation. confluence was not known to be suitable habitat characteristics, Additionally, 21.4 km (13.3 mi) of Eagle occupied by spikedace at listing; reintroduced population of spikedace, Creek also flow through private lands however, a reintroduction of spikedace and location within the historical range belonging to Freeport McMoRan. These occurred in 2008 above the town of of spikedace indicate that this area is areas have been excluded from the final Alma, New Mexico (NMDGF 2009, p. 1). suitable for spikedace. The reduced critical habitat designations under The success of this translocation effort distribution of spikedace and the section 4(b)(2) of the Act (see remains to be determined, but the suitability of this large, intact river ‘‘Application of Section 4(b)(2) of the stream meets criteria for a 2b for system in the upper San Francisco River Act’’ section below for additional spikedace. The San Francisco River was indicates that it is essential to the information). known to be occupied by loach minnow conservation of the species. The essential features in this stream at listing (NMDGF 2008; Propst et al. Loach Minnow Only. We are may require special management 2009, pp. 5–6), and therefore meets the designating 30.0 km (18.6 mi) of the considerations or protection due to criteria for a 1a stream under the ruleset Tularosa River from the confluence with competition with and predation by for loach minnow. the San Francisco River upstream to the nonnative aquatic species; residual There are no known records of town of Cruzville, New Mexico. Above effects of past livestock grazing and spikedace from the Tularosa River, Cruzville, habitat becomes unsuitable impacts to uplands, riparian vegetation, Negrito Creek, or Whitewater Creek, and for loach minnow. The Tularosa River is and the stream; mining activities in the spikedace have not been known to occur currently occupied by loach minnow uplands; moderate to severe drought any higher in the San Francisco River (Propst et al. 2009, pp. 4–5). The (University of Nebraska-Lincoln 2011, p. than Pleasanton (Paroz and Propst 2007, Tularosa River is perennial throughout 1); road construction and maintenance pp. 13–15). We are not including any of this reach, and contains suitable habitat within and adjacent to the stream these tributary streams for spikedace in for all life stages of loach minnow (PCE channel, and the indirect effect of the designation at this time. In contrast, 1); has an appropriate food base (PCE 2); wildfires that have occurred in the the Tularosa River and Whitewater consists of perennial flows with no or watershed since 2007. Creek were known to have been low levels of pollutants (PCEs 3 and 4); occupied at listing by loach minnow, and has an appropriate hydrologic Unit 6: San Francisco River Subbasin and meet the criteria for a 1a stream regime to maintain suitable habitat We are including within these under the ruleset. Negrito Creek was not characteristics (PCE 6). Land ownership designations 228.1 km (141.7 miles) of known to have been occupied at listing along the Tularosa River is stream segments from the San Francisco by loach minnow, but loach minnow predominantly Gila National Forest, River and its tributaries Tularosa River, have since been detected in Negrito with private inholdings. The essential Negrito Creek, and Whitewater Creek. Creek (Miller 1998, pp. 1–6). For this features in this stream may require All of this area is designated for loach reason, we have included Negrito Creek special management considerations or minnow, while 166.6 km (103.5 miles) as a 1a stream under the ruleset. protection due to residual effects of is also designated for spikedace. All of Both Species. This designation livestock grazing, and impacts to the area included for spikedace is includes 166.6 km (103.5 mi) of the San uplands, and competition with and within the area designated for loach Francisco River as critical habitat for predation by nonnative aquatic species. minnow. The portions of the San spikedace from the confluence with the We include within this designation Francisco, Tularosa River, Negrito Gila River upstream to the confluence 6.8 km (4.2 mi) of Negrito Creek Creek, and Whitewater Creek included with the Tularosa River. We are extending from the confluence with the within these designations are in including a total of 203.6 km (126.5 mi) Tularosa River upstream to the Greenlee County, Arizona, and Catron of the San Francisco River for loach confluence with Cerco Canyon. Negrito County, New Mexico. minnow, from its confluence with the Creek is perennial through this reach. Portions of the San Francisco River in Gila River upstream to the town of Above this point, gradient and channel Greenlee County totaling 14.1 km (8.8 Cruzville. For loach minnow, the San morphology make the creek unsuitable mi) are on lands owned by FMC. These Francisco River was known to be for loach minnow. Loach minnow in areas have been excluded from the final occupied at listing. The San Francisco Negrito Creek were newly discovered critical habitat designations under River contains suitable habitat for all after listing (Miller 1998, pp. 1–6). section 4(b)(2) of the Act (see life stages of loach minnow (PCE 1); has Negrito Creek contains suitable habitat ‘‘Application of Section 4(b)(2) of the an appropriate food base (PCE 2); for all life stages of loach minnow (PCE Act’’ section below for additional consists of perennial flows with no or 1); has an appropriate food base (PCE 2); information). low levels of pollutants (PCEs 3 and 4); consists of perennial flows with no or The San Francisco River is one of the and has an appropriate hydrologic low levels of pollutants (PCEs 3 and 4); larger intact streams remaining within regime to maintain suitable habitat and has an appropriate hydrologic the species’ ranges, with an overall characteristics (PCE 6). The essential regime to maintain suitable habitat length of approximately 202 km (125 features in this stream may require characteristics (PCE 6). Negrito Creek mi). It is considered perennial special management considerations or occurs primarily on the Gila National throughout this length, except for protection due to livestock grazing and Forest, with a few parcels of private seasonal drying in the Alma Valley. impacts to uplands, riparian vegetation, land interspersed with the Forest lands. Land ownership on the San Francisco and the stream; severe drought The essential features in this stream River includes primarily BLM and (University of Nebraska-Lincoln 2011, p. may require special management Apache-Sitgreaves National Forest with 1) in those portions in Arizona; considerations or protection due to small parcels of private and State lands competition with and predation by residual effects of past livestock grazing in Arizona, and the Gila National Forest nonnative aquatic species; water and impacts to uplands, riparian with small parcels of private lands in diversions; road construction and vegetation, and the stream, as well as New Mexico. maintenance; and channelization. other disturbances in the watershed. Occupancy within this subbasin is The San Francisco River was not We include within this designation mixed. The San Francisco River known to be occupied by spikedace at 1.9 km (1.2 mi) of Whitewater Creek downstream of the Tularosa River listing. The presence of loach minnow, from the confluence with the San

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Francisco River upstream to the the suitability of each stream is Canyon, the creek changes and becomes confluence with Little Whitewater provided below. steeper and rockier, making it Creek. Upstream of this point, gradient Both Species. We are including within unsuitable for spikedace and loach and channel changes make the habitat these designations 81.4 km (50.6 mi) of minnow. unsuitable for loach minnow. the Blue River from the confluence with • Pace Creek—1.2 km (0.8 mi) of Pace Whitewater Creek was known to be the San Francisco River upstream to the Creek from the confluence with Dry occupied by loach minnow at the time confluence of Campbell Blue and Dry Blue Creek upstream to a barrier falls. of listing and has perennial flows. It Blue creeks. As noted above, this river Habitat above the barrier is considered serves as an extension of habitat on the was not known to have been occupied unsuitable. • San Francisco River. Whitewater Creek by spikedace at listing. The Blue River Dry Blue Creek—4.7 km (3.0 mi) of contains suitable habitat for all life is occupied by loach minnow, and Dry Blue Creek from the confluence stages of loach minnow (PCE 1); has an contains suitable habitat for all life with Campbell Blue Creek upstream to stages of loach minnow (PCE 1); has an the confluence with Pace Creek. appropriate food base (PCE 2); consists • of perennial flows with no or low levels appropriate food base (PCE 2); consists Frieborn Creek—1.8 km (1.1 mi) of of pollutants (PCEs 3 and 4); and has an of perennial streams with no or low Frieborn Creek from the confluence appropriate hydrologic regime to pollutant issues (PCEs 3 and 4); has no with Dry Blue Creek upstream to an maintain suitable habitat characteristics nonnative aquatic species, or levels of unnamed tributary. • Little Blue Creek—5.1 km (3.1 mi) (PCE 6). Whitewater Creek occurs nonnative aquatic species that are of Little Blue Creek. This includes the entirely on private lands. The essential sufficiently low to allow persistence of lower, perennial portions of Little Blue features in this stream may require spikedace and loach minnow (PCE 5); Creek extending from the confluence special management considerations or and has an appropriate hydrologic with the Blue River upstream to the protection due to residual impacts from regime to maintain suitable habitat confluence with an unnamed canyon. past livestock grazing and impacts to characteristics (PCE 6). The Blue River Above the canyon, flows are not uplands, riparian vegetation, and the occurs predominantly on Federal lands on the Apache-Sitgreaves National perennial. stream; water diversions; competition Each of these streams were occupied with and predation by nonnative Forest, as well as on private parcels of land within the Forest. The essential at the time of listing by loach minnow, aquatic species; road construction and contain suitable habitat for all life stages maintenance; channelization, and features in this stream may require special management considerations or (PCE 1); have an appropriate food base moderate drought (University of (PCE 2); consist of perennial flows with Nebraska-Lincoln 2011, p. 1). protection due to residual effects of past livestock grazing and impacts to no or low levels of pollutants (PCEs 3 Unit 7: Blue River Subbasin uplands, riparian vegetation, and the and 4); have no nonnative aquatic species, or levels of nonnative aquatic Within the Blue River Subbasin, we stream; moderate to severe drought (University of Nebraska-Lincoln 2011, p. species that are sufficiently low to allow are including 106.6 km (66.3 mi) of the 1); and competition with and predation persistence of spikedace and loach Blue River, Campbell Blue and Little by nonnative aquatic species. minnow (PCE 5); and have an Blue creeks in Greenlee County, The larger size of the Blue River, appropriate hydrologic regime to Arizona, and portions of Campbell Blue, compared to smaller, tributary streams maintain suitable habitat characteristics Pace, Frieborn, and Dry Blue creeks in within the species’ range, along with its (PCE 6). the essential features in this Catron County, New Mexico, for both perennial flows and conservation subbasin may require special spikedace and loach minnow. The Blue management activities, make this area management considerations or River, Campbell Blue Creek, and Little important to spikedace. In addition, protection due to residual impacts of Blue Creek occur predominantly on planning among several State and past livestock grazing and impacts to Federal lands of the Apache-Sitgreaves Federal agencies is underway for uplands, riparian vegetation, and the National Forest. The tributaries Pace, restoration of native fish species, stream; moderate to severe drought Frieborn, and Dry Blue creeks occur including spikedace, in the Blue River (University of Nebraska-Lincoln 2011, p. entirely on Federal lands on the Gila through construction of a barrier that 1); and competition with and predation National Forest in New Mexico. will exclude nonnative fish from by nonnative aquatic species. Campbell Within this subbasin, occupancy by moving upstream and allow for Blue Creek and portions of the Blue spikedace and loach minnow is mixed. translocation of spikedace. Barrier River were burned during the Wallow None of the streams designated as feasibility studies have been completed, Fire in 2011, and increased ash and critical habitat in the Blue River as has a draft Memorandum of sedimentation within the active stream Subbasin were known to have been Understanding with land managers and may be a temporary issue in these occupied at listing by spikedace. residents in this area. Federal land streams. Streams within this subbasin are ownership throughout the majority of Because these streams are occupied included as 2b streams for spikedace this proposed critical habitat unit would by loach minnow, which often co-occur under the ruleset. In contrast, the Blue facilitate management for the species. with spikedace, and because they occur River was known to have been occupied We therefore consider the Blue River to within the historical range of the at listing, and all of the tributary streams be essential to the conservation of species, we believe these streams are of Campbell Blue, Little Blue, Pace, Dry spikedace. suitable for spikedace. In addition, as Blue, and Frieborn Creeks were We are including within these discussed above, perennial flows, and discovered to be occupied by loach designations stream miles on multiple occurrence predominantly on Federal minnow after listing, as follows: tributaries for both spikedace and loach lands make these areas especially Campbell Blue Creek—1987; Pace minnow, as follows: suitable for spikedace recovery, and Creek—1998; Dry Blue Creek—1998, • Campbell Blue Creek—12.4 km (7.7 cooperative management plans for a and Frieborn Creek—1998 (ASU 2002). mi) extending from the confluence of native fishery in the Blue River enhance We are therefore including each of these Dry Blue and Campbell Blue Creeks opportunities for spikedace streams as 1a streams under the ruleset upstream to the confluence with conservation. We therefore believe the for loach minnow. Additional detail on Coleman Canyon. Above Coleman Blue River, Campbell Blue, Pace, Dry

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Blue, Frieborn, and Little Blue creeks to regime to maintain suitable habitat maintain suitable habitat characteristics be essential to the conservation of the characteristics (PCE 6). (PCE 6). species. Spikedace and loach minnow on the Approximately 7.9 km (4.9 mi) on Mangas Creek within this unit are on Unit 8. Gila River Subbasin Gila River mainstem occur primarily on Federal lands managed by the BLM and lands owned and managed by FMC. These designations include the Gila National Forest, interspersed These areas have been excluded from approximately 258.6 km (160.7 mi) of with private and State lands (NMDGF at the final critical habitat designations the upper Gila River and five tributaries Heart Bar Wildlife Area). The essential under section 4(b)(2) of the Act (see including West Fork Gila River, Middle features in the Gila River may require ‘‘Application of Section 4(b)(2) of the Fork Gila River, East Fork Gila River, special management considerations or Act’’ section below for additional Mangas Creek, and Bear Creek in protection due to residual impacts of information). Hidalgo, Grant, and Catron Counties, past livestock grazing and impacts to Spikedace and loach minnow on New Mexico. A slightly larger area was uplands, riparian vegetation, and the Mangas Creek occur primarily on included for loach minnow on the stream; competition with and predation private lands, with small portions Middle Fork Gila River. All mileage by nonnative aquatic species; road occurring on lands managed by the included for spikedace on the Middle construction and maintenance; water BLM. The essential features in Mangas Fork Gila River is included within this diversions; recreation; and moderate Creek may require special management area. All streams included within this drought (University of Nebraska-Lincoln considerations or protection due to unit are considered occupied at listing 2011, p. 1). residual impacts of past livestock by both species (Paroz et al. 2009, p. 12), Approximately 11.5 km (7.2 mi) of grazing and impacts to uplands, riparian and therefore meet the criteria for 1a streams on the Gila River mainstem vegetation, and the stream; impaired streams under the ruleset. Spikedace within this unit are owned and managed water quality due to high organic matter and loach minnow were first detected in by FMC. This area has been excluded and excessive algal growth likely caused Mangas Creek after listing, which meets by resource extraction (mining), loss of from the final critical habitat the criteria for a 1a stream under the riparian habitat, wildlife use of the area, designations under section 4(b)(2) of the ruleset (in 1999; NMGFD 2008). municipal discharges, recreation and Act (see ‘‘Application of Section 4(b)(2) Similarly, loach minnow were first tourism, agriculture (livestock grazing) of the Act’’ section below for additional detected in Bear Creek after listing, (EPA 2002, pp. 4–12; EPA 2004; EPA information). which also meets the criteria for a 1a 2010, p. 1) and moderate drought stream (in 2005; Schiffmiller 2005; The West Fork Gila River occurs (University of Nebraska-Lincoln 2011, NMGFD 2008). primarily on a mix of Federal lands on p. 1). Both Species. These designations the Gila National Forest, the National Spikedace Only. We are including include 153.5 km (95.4 mi) of the Gila Park Service, and private lands. The within the designation 12.5 km (7.7 mi) River from the confluence with Moore essential features in this stream may of the Middle Fork Gila River extending Canyon (near the Arizona-New Mexico require special management from the confluence with West Fork border) upstream to the confluence of considerations or protection due to Gila River upstream to the confluence the East and West Forks are included competition with and predation by with Big Bear Canyon. This area is within these designations. Below Moore nonnative aquatic species, road currently occupied by spikedace and is Canyon, the river is substantially altered construction and maintenance, connected to currently occupied habitat by agriculture, diversion, and urban watershed impacts associated with past on the West Fork of the Gila River development. In addition, there are no wildfires, and moderate drought (NMDGF 2008; Propst et al. 2009, pp. 9– loach minnow and only one spikedace (University of Nebraska-Lincoln 2011, 11). The Gila River contains suitable records known from the Gila River p. 1). habitat for all life stages of spikedace between its confluence with Moore The East Fork Gila River occurs (PCE 1); has an appropriate food base Canyon and a spikedace record from primarily on Federal lands on the Gila (PCE 2); consists of perennial streams Pinal County, Arizona, near the National Forest, with small parcels of with no or low pollutant issues (PCEs 3 Ashurst-Hayden Dam. This portion of private lands interspersed. The essential and 4); and has an appropriate the Gila River supports the largest features in this stream may require hydrologic regime to maintain suitable remaining populations of spikedace and special management considerations or habitat characteristics (PCE 6). This area loach minnow (NMDGF 2008; Propst et protection due to residual impacts of is considered essential to the survival al. 2009, pp. 14–17). In addition, we are past livestock grazing and impacts to and recovery of the species because of designating 13.0 km (8.1 mi) of the West uplands, riparian vegetation, and the its historical and current occupancy and Fork Gila River from the confluence stream; competition with and predation multiple PCEs. In addition, the Middle with the East Fork Gila River upstream by nonnative aquatic species; watershed Fork Gila River is connected to habitat to the confluence with EE Canyon and impacts associated with past wildfires occupied by spikedace on the West Fork 42.1 km (26.2 mi) of the East Fork Gila (University of Nebraska-Lincoln 2011, Gila River. The Middle Fork Gila River River from the confluence with the West p. 1). occurs primarily on Federal lands Fork Gila River upstream to the We are including within these managed by the Gila National Forest, confluence of Beaver and Taylor Creeks. designations 1.2 km (0.8 mi) of Mangas with small parcels of private lands Above EE Canyon, the river becomes Creek for both species from the interspersed with Federal lands. The unsuitable for spikedace and loach confluence with the Gila River upstream essential features in this stream may minnow due to gradient and channel to the confluence with Willow Creek. require special management morphology. All stream segments Mangas Creek is currently occupied by considerations or protection due to contain suitable habitat for all life stages spikedace and loach minnow (NMDGF residual impacts of past livestock of spikedace and loach minnow (PCE 1); 2008). Mangas Creek contains suitable grazing and impacts to uplands, riparian have an appropriate food base (PCE 2); habitat for all life stages of spikedace vegetation, and the stream; competition consist of perennial streams with no or and loach minnow (PCE 1); has an with and predation by nonnative low levels of pollutants (PCEs 3 and 4); appropriate food base (PCE 2); and has aquatic species; watershed impacts and have an appropriate hydrologic an appropriate hydrologic regime to associated with past wildfires; and

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moderate drought (University of details on land ownership and special found, and we believe it is more likely Nebraska-Lincoln 2011, p. 1). management needs. that loach minnow persist in this area Loach Minnow Only. In addition to We are including within this of perennial flows. the areas described above for this unit, designation 31.4 km (19.5 mi) of Bear Portions of Bear Creek contain we are including within the designation Creek from its confluence with the Gila suitable habitat for all life stages of 19.1 km (11.9 mi) of the Middle Fork River upstream to the confluence with loach minnow (PCE 1); have an Gila River extending from the Sycamore Creek and North Fork Walnut appropriate food base (PCE 2); consist of confluence with West Fork Gila River Creek. Loach minnow were first found perennial flows with no or low levels of upstream to the confluence with in Bear Creek in 2005 and again in 2006 pollutants (PCEs 3 and 4); have no Brothers West Canyon. The 12.5 km (7.7 (Schiffmiller 2005, pp. 1–4; NMDGF nonnative aquatic species, or levels of mi) designated on the Middle Fork Gila 2008). Bear Creek is classified as River for spikedace is completely within perennial interrupted, with stream nonnative aquatic species that are this 19.1 km (11.9 mi). This area is segments that may dry up seasonally, sufficiently low to allow persistence of currently occupied by loach minnow depending on weather events (USFS spikedace and loach minnow (PCE 5); (NMDGF 2008; Propst et al. 2009, 2010). While it was initially believed and have an appropriate hydrologic pp. 9–11). that loach minnow detected in 2005 regime to maintain suitable habitat The Middle Fork Gila River contains came from the Gila River during a characteristics (PCE 6). The essential suitable habitat for all life stages of period when the upstream, perennial features in this stream may require loach minnow (PCE 1); has an section was temporarily connected to special management considerations or appropriate food base (PCE 2); consists the Gila River, further discussions with protection due to some residual impacts of perennial flows with no or low levels biologists familiar with the stream, a of past livestock grazing and impacts to of pollutants (PCEs 3 and 4); and has an review of the loach minnow records, uplands, riparian vegetation, and the appropriate hydrologic regime to and reconsideration of the species stream; and moderate drought maintain suitable habitat characteristics biology make this seem unlikely. The (University of Nebraska-Lincoln 2011, (PCE 6). This area is considered location of the loach minnow detections p. 1). essential to the survival and recovery of on Bear Creek was approximately 18 Approximately .9 km (1.2 mi) on Bear loach minnow due to its historical and miles upstream of the Gila River Creek within this unit are on lands current occupancy, its multiple PCEs, confluence. We believe it is unlikely owned and managed by FMC. These and its connection to the West Fork of that loach minnow were able to swim areas have been excluded from the final the Gila River, which is currently upstream 18 miles during a high flow critical habitat designations under occupied by loach minnow. See the event to become established in this section 4(b)(2) of the Act (see description above, describing the location. Nearby Dorsey Spring ‘‘Application of Section 4(b)(2) of the designation along the West and Middle maintains perennial flows in the section Act’’ section below for additional Forks of the Gila River for spikedace for of river in which the loach minnow are information).

TABLE 8—STREAM SEGMENTS CONSIDERED IN THESE CRITICAL HABITAT DESIGNATIONS AND THE CRITERIA UNDER WHICH THEY ARE IDENTIFIED

Occupied by Occupied by loach spikedace at the time minnow at the time of Stream of listing or at any listing or at any time time thereafter/rule thereafter/rule criteria criteria met met *

Unit 1—Verde River Subbasin

Verde River ...... Yes/1a ...... No/2b. Granite Creek ...... No/2a ...... No/2b. Oak Creek ...... No/2a ...... No/2b. Beaver and Wet Beaver Creek ...... No/2a ...... No/2b. West Clear Creek ...... No/2a ...... Not applicable. Fossil Creek ...... No/2a ...... No/2b.

Unit 2—Salt River Subbasin

Salt River ...... No/ ...... Not applicable. Tonto Creek ...... No/2b ...... Not applicable. Greenback Creek ...... No/2b ...... Not applicable. Rye Creek ...... No/2b ...... Not applicable. Spring Creek ...... No/2b ...... Not applicable. Rock Creek ...... No/2b ...... Not applicable. White River ...... Not Applicable ...... Yes/1a. East Fork White River ...... Not Applicable ...... Yes/1a. East Fork Black River ...... Not applicable ...... No/2a. North Fork East Fork Black River ...... Not applicable ...... Yes/1a. Boneyard Creek ...... Not applicable ...... Yes/1a. Coyote Creek ...... Not applicable ...... No/2a.

Unit 3—San Pedro River Subbasin

San Pedro River ...... No/2b ...... No/2b. Hot Springs Canyon ...... No/2a ...... No/2a. Bass Canyon ...... No/2a ...... No/2a.

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TABLE 8—STREAM SEGMENTS CONSIDERED IN THESE CRITICAL HABITAT DESIGNATIONS AND THE CRITERIA UNDER WHICH THEY ARE IDENTIFIED—Continued

Occupied by Occupied by loach spikedace at the time minnow at the time of Stream of listing or at any listing or at any time time thereafter/rule thereafter/rule criteria criteria met met *

Redfield Canyon ...... No/2a ...... No/2a. Aravaipa Creek ...... Yes/1a ...... Yes/1a. Deer Creek ...... No/2a ...... Yes/1a. Turkey Creek ...... No/2a ...... Yes/1a.

Unit 4—Bonita Creek Subbasin

Bonita Creek ...... No/2b ...... No/2b.

Unit 5—Eagle Creek Subbasin

Eagle Creek ...... Yes/1a ...... Yes1a.

Unit 6—San Francisco River Subbasin

San Francisco River ...... No/2b ...... Yes/1a. Tularosa River ...... Not applicable ...... Yes/1a. Negrito Creek ...... Not applicable ...... Yes/1a. Whitewater Creek ...... Not applicable ...... Yes/1a.

Unit 7—Blue River Subbasin

Blue River ...... No/2b ...... Yes/1a. Campbell Blue Creek ...... No/2b ...... Yes/1a Little Blue Creek ...... No/2b ...... Yes/1a. Pace Creek ...... No/2b ...... Yes/1a Frieborn Creek ...... No/2b ...... Yes/1a. Dry Blue Creek ...... No/2b ...... Yes/1a.

Unit 8—Gila River Subbasin

Gila River ...... Yes/1a ...... Yes/1a. West Fork Gila River ...... Yes/1a ...... Yes/1a. Middle Fork Gila River ...... Yes/1a ...... Yes/1a. East Fork Gila River ...... Yes/1a ...... Yes/1a. Mangas Creek ...... Yes/1a ...... Yes/1a. Bear Creek ...... Not Applicable ...... Yes/1a.

Effects of Critical Habitat Designations Fish and Wildlife Service, 378 F. 3d section 404 of the Clean Water Act (33 1059 (9th Cir. 2004) and Sierra Club v. U.S.C. 1251 et seq.) or a permit from the Section 7 Consultation U.S. Fish and Wildlife Service et al., 245 Service under section 10 of the Act) or Section 7(a)(2) of the Act requires F.3d 434, 442 (5th Cir. 2001)), and we that involve some other Federal action Federal agencies, including the Service, do not rely on this regulatory definition (such as funding from the Federal to ensure that any action they fund, when analyzing whether an action is Highway Administration, Federal authorize, or carry out is not likely to likely to destroy or adversely modify Aviation Administration, or the Federal jeopardize the continued existence of critical habitat. Under the statutory Emergency Management Agency). any endangered species or threatened provisions of the Act, we determine Federal actions not affecting listed species or result in the destruction or destruction or adverse modification on species or critical habitat, and actions adverse modification of designated the basis of whether, with on State, tribal, local, or private lands critical habitat of such species. In implementation of the proposed Federal that are not federally funded or addition, section 7(a)(4) of the Act action, the affected critical habitat authorized, do not require section 7 requires Federal agencies to confer with would continue to serve its intended consultation. the Service on any agency action which conservation role for the species. As a result of section 7 consultation, is likely to jeopardize the continued If a Federal action may affect a listed we document compliance with the existence of any species proposed to be species or its critical habitat, the requirements of section 7(a)(2) through listed under the Act or result in the responsible Federal agency (action our issuance of: destruction or adverse modification of agency) must enter into consultation proposed critical habitat. with us. Examples of actions that are (1) A concurrence letter for Federal Decisions by the 5th and 9th Circuit subject to the section 7 consultation actions that may affect, but are not Courts of Appeals have invalidated our process are actions on State, tribal, likely to adversely affect, listed species regulatory definition of ‘‘destruction or local, or private lands that require a or critical habitat; or adverse modification’’ (50 CFR 402.02) Federal permit (such as a permit from (2) A biological opinion for Federal (see Gifford Pinchot Task Force v. U.S. the U.S. Army Corps of Engineers under actions that may affect, or are likely to

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adversely affect, listed species or critical conservation value of critical habitat for (4) Actions that could result in the habitat. spikedace and loach minnow. As introduction, spread, or augmentation of When we issue a biological opinion discussed above, the role of critical aquatic species in occupied stream concluding that a project is likely to habitat is to support life-history needs of segments, or in stream segments that are jeopardize the continued existence of a the species and provide for the hydrologically connected to occupied listed species and/or destroy or conservation of the species. stream segments, even if those segments adversely modify critical habitat, we Section 4(b)(8) of the Act requires us are occasionally intermittent, or provide reasonable and prudent to briefly evaluate and describe, in any introduction of other species that alternatives to the project, if any are proposed or final regulation that compete with or prey on spikedace or identifiable, that would avoid the designates critical habitat, activities loach minnow. Possible actions could likelihood of jeopardy and/or involving a Federal action that may include, but are not limited to: destruction or adverse modification of destroy or adversely modify such Introduction of parasites or disease; critical habitat. We define ‘‘reasonable habitat, or that may be affected by such stocking of nonnative fishes; stocking of and prudent alternatives’’ (at 50 CFR designation. sport fish (whether native or nonnative); 402.02) as alternative actions identified Examples of activities that, when stocking of nonnative amphibians or during consultation that: authorized, funded, or carried out by a other nonnative taxa; or other related (1) Can be implemented in a manner Federal agency, may affect critical actions. These activities can affect the consistent with the intended purpose of habitat and therefore should result in growth, reproduction, and survival of the action, consultation for the spikedace and loach spikedace and loach minnow. (2) Can be implemented consistent minnow include, but are not limited to: (5) Actions that would significantly with the scope of the Federal agency’s (1) Actions that would significantly alter channel morphology. Such legal authority and jurisdiction, diminish flows within the active stream activities could include, but are not (3) Are economically and channel. Such activities could include, limited to: Channelization, technologically feasible, and impoundment, road and bridge (4) Would, in the Director’s opinion, but are not limited to: Water diversions; channelization; construction of any construction, mining, dredging, and avoid the likelihood of jeopardizing the destruction of riparian vegetation. These continued existence of the listed species barriers or impediments within the active river channel; removal of flows in activities may lead to changes in water and/or avoid the likelihood of flows and levels that would eliminate destroying or adversely modifying excess of those allotted under a given water right; construction of permanent the spikedace or loach minnow, degrade critical habitat. their habitats, or both. These actions can Reasonable and prudent alternatives or temporary diversion structures; and also lead to increased sedimentation can vary from slight project groundwater pumping within aquifers and degradation in water quality to modifications to extensive redesign or associated with the river. These actions levels that are beyond the tolerances of relocation of the project. Costs could affect water depth, velocity, and spikedace and loach minnow. associated with implementing a flow pattern, all of which are essential reasonable and prudent alternative are to the different life stages of spikedace Exemptions similarly variable. or loach minnow. Regulations at 50 CFR 402.16 require (2) Actions that significantly alter the Application of Section 4(a)(3) of the Act Federal agencies to reinitiate water chemistry of the active channel. The Sikes Act Improvement consultation on previously reviewed Such activities could include, but are Amendment of 1997 (Sikes Act) (16 actions in instances where we have not limited to: Release of chemicals, U.S.C. 670a) required each military listed a new species or subsequently biological pollutants, or other installation that includes land and water designated critical habitat that may be substances into the surface water or suitable for the conservation and affected and the Federal agency has connected groundwater at a point management of natural resources to retained discretionary involvement or source or by dispersed release (nonpoint complete an integrated natural resource control over the action (or the agency’s source); and storage of chemicals or management plan (INRMP) by discretionary involvement or control is pollutants that can be transmitted, via November 17, 2001. An INRMP authorized by law). Consequently, surface water, groundwater, or air into integrates implementation of the Federal agencies sometimes may need to critical habitat. These actions can affect military mission of the installation with request reinitiation of consultation with water chemistry, and in turn the prey stewardship of the natural resources us on actions for which formal base of spikedace and loach minnow. found on the base. Each INRMP consultation has been completed, if (3) Actions that would significantly includes: those actions with discretionary increase sediment deposition within a (1) An assessment of the ecological involvement or control may affect stream channel. Such activities could needs on the installation, including the subsequently listed species or include, but are not limited to: need to provide for the conservation of designated critical habitat. Excessive sedimentation from improper listed species; livestock grazing; road construction; (2) A statement of goals and priorities; Application of the ‘‘Adverse commercial or urban development; (3) A detailed description of Modification’’ Standard channel alteration; timber harvest; ORV management actions to be implemented The key factor related to the adverse use; recreational use; or other watershed to provide for these ecological needs; modification determination is whether, and floodplain disturbances. These and with implementation of the proposed activities could adversely affect (4) A monitoring and adaptive Federal action, the affected critical reproduction of the species by management plan. habitat would continue to serve its preventing hatching of eggs, or by Among other things, each INRMP intended conservation role for the eliminating suitable habitat for egg must, to the extent appropriate and species. Activities that may destroy or placement by loach minnow. In applicable, provide for fish and wildlife adversely modify critical habitat are addition, excessive levels of management; fish and wildlife habitat those that alter the PCEs to an extent sedimentation can make it difficult for enhancement or modification; wetland that appreciably reduces the these species to locate prey. protection, enhancement, and

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restoration where necessary to support In considering whether to exclude a received, we evaluated whether certain fish and wildlife; and enforcement of particular area from the designations, lands in the critical habitat in Units 1, applicable natural resource laws. we identify the benefits of including the 2, 3, 5, and 8 were appropriate for The National Defense Authorization area in the designations, identify the exclusion from these final designations Act for Fiscal Year 2004 (Pub. L. 108– benefits of excluding the area from the pursuant to section 4(b)(2) of the Act. As 136) amended the Act to limit areas designations, and evaluate whether the discussed in detail below, the Secretary eligible for designation as critical benefits of exclusion outweigh the is exercising his discretion to exclude habitat. Specifically, section 4(a)(3)(B)(i) benefits of inclusion. If the analysis the following areas from critical habitat of the Act (16 U.S.C. 1533(a)(3)(B)(i)) indicates that the benefits of exclusion designations for both spikedace and now provides: ‘‘The Secretary shall not outweigh the benefits of inclusion, the loach minnow: designate as critical habitat any lands or Secretary may exercise his discretion to (1) The San Pedro River in its entirety other geographical areas owned or exclude the area only if such exclusion within Unit 3 of the designations; controlled by the Department of would not result in the extinction of the (2) Those portions of the Verde River Defense, or designated for its use, that species. and Beaver and Wet Beaver Creeks in are subject to an integrated natural When identifying the benefits of resources management plan prepared Unit 1 occurring within the boundaries inclusion for an area, we consider the of the Yavapai-Apache Nation and under section 101 of the Sikes Act (16 additional regulatory benefits that area U.S.C. 670a), if the Secretary determines subject to the provisions of Tribal would receive from the protection from Resolution 46–2006; in writing that such plan provides a adverse modification or destruction as a benefit to the species for which critical result of actions with a Federal nexus; (3) Those portions of the mainstem habitat is proposed for designation.’’ the educational benefits of mapping White River and East Fork White River There are no Department of Defense essential habitat for recovery of the within the boundaries of the White lands with a completed INRMP within listed species; and any benefits that may Mountain Apache Tribe and subject to the critical habitat designations for result from a designation due to State or the provisions of the Loach Minnow either species. Therefore, we are not Federal laws that may apply to critical Management Plan; exempting lands from these final habitat. (4) Those portions of Eagle Creek in designations of critical habitat for When identifying the benefits of Unit 5 that are within the boundaries of spikedace or loach minnow pursuant to exclusion, we consider, among other the San Carlos Apache Nation and section 4(a)(3)(B)(i) of the Act. things, whether exclusion of a specific subject to the provisions of their FMP; Exclusions area is likely to result in conservation; (5) Those portions of the mainstem the continuation, strengthening, or Eagle Creek and the San Francisco River Application of Section 4(b)(2) of the Act encouragement of partnerships; or that are owned by FMC or their Section 4(b)(2) of the Act states that implementation of a management plan subsidiaries; and the Secretary shall designate and make that provides equal to or more (6) Those portions of the Gila River, revisions to critical habitat on the basis conservation than a critical habitat Mangas Creek, or Bear Creek that are of the best available scientific data after designation would provide, forego owned by FMC or their subsidiaries. taking into consideration the economic disproportionate economic impacts The Secretary is also exercising his impact, national security impact, and resulting from the designation of critical discretion to exclude the areas because any other relevant impact of specifying habitat, or avoid potential conflicts with we determined the following: any particular area as critical habitat. national security issues. The Secretary may exclude an area from After evaluating the benefits of (1) Their value for conservation will critical habitat if he determines that the inclusion and the benefits of exclusion, be preserved for the foreseeable future benefits of such exclusion outweigh the we carefully weigh the two sides to by existing protective actions, or benefits of specifying such area as part determine whether the benefits of (2) The benefit of excluding them of the critical habitat, unless he exclusion outweigh those of inclusion. under the ‘‘other relevant factor’’ determines, based on the best scientific If our analysis indicates that the benefits provisions of section 4(b)(2) of the Act data available, that the failure to of exclusion outweigh the benefits of outweighs the benefit of including them designate such area as critical habitat inclusion, we then determine whether in critical habitat. will result in the extinction of the exclusion would result in extinction. If Table 9 below provides approximate species. In making that determination, exclusion of an area from critical habitat length of streams that meet the the statute on its face, as well as the will result in extinction, we will not definition of critical habitat but are legislative history are clear that the exclude it from the designations. excluded under section 4(b)(2) of the Secretary has broad discretion regarding Based on the information provided by Act from the final critical habitat rule. which factor(s) to use and how much entities seeking exclusion, as well as Table 9 also provides our reasons for the weight to give to any factor. any additional public comments exemptions and exclusions.

TABLE 9—EXCLUSIONS AND AREAS CONSIDERED FOR EXCLUSION FROM DESIGNATION OF CRITICAL HABITAT FOR LOACH MINNOW AND SPIKEDACE BY CRITICAL HABITAT UNIT

Areas meeting the definition Unit Specific area Basis for of critical habitat in kilometers Areas excluded in kilometers exclusion (miles) (miles)

1 ...... Verde River and Beaver and Yavapai-Apache Nation Tribal 1.2 km (0.8 mi) of the Verde 1.2 km (0.8 mi) of the Verde Wet Beaver Creeks on Resolution 46–2006; Tribal River and 0.2 km (0.1 mi) of River and 0.2 km (0.1 mi) of Yavapai-Apache Nation Sovereignty; Working Rela- Beaver Creek and Wet Beaver Creek and Wet lands. tionship with the Yavapai- Beaver Creek. Beaver Creek. Apache Nation.

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TABLE 9—EXCLUSIONS AND AREAS CONSIDERED FOR EXCLUSION FROM DESIGNATION OF CRITICAL HABITAT FOR LOACH MINNOW AND SPIKEDACE BY CRITICAL HABITAT UNIT—Continued

Areas meeting the definition Unit Specific area Basis for of critical habitat in kilometers Areas excluded in kilometers exclusion (miles) (miles)

2 ...... Mainstem White River and Loach Minnow Management 29.0 km (18.0 mi) of the 29.0 km (18.0 mi) of the East Fork White River. Plan; Tribal Sovereignty; White River and 17.2 km White River and 17.2 km Working Relationship with (10.7 mi) of the East Fork (10.7 mi) of the East Fork the White Mountain Apache White River. White River. Tribe. 3 ...... San Pedro River ...... National Security ...... 59.8 km (37.2 mi) of the San 59.8 km (37.2 mi) of the San Pedro River. Pedro River. 5 ...... Eagle Creek ...... San Carlos Apache Tribe 75.5 km (46.9 mi) of Eagle 27.5 km (17.1 mi) of Eagle Fisheries Management Creek. Creek on the San Carlos Plan; Tribal Sovereignty; Apache Reservation. Working Relationship with the San Carlos Apache Tribe. 5 ...... Eagle Creek ...... FMC Spikedace and Loach 75.5 km (46.9 mi) of Eagle Approximately 21.4 km (13.3 Minnow Management Plan Creek. mi) of Eagle Creek owned Eagle Creek and San Fran- by FMC or its subsidiaries. cisco River Greenlee and Graham County, Arizona. 5 ...... San Francisco River ...... FMC Spikedace and Loach 203.6 km (126.5 mi of the 14.1 km (8.8 mi) of the San Minnow Management Plan San Francisco River for Francisco River owned by Eagle Creek and San Fran- loach minnow; 180.7 km FMC or its subsidiaries. cisco River Greenlee and (112.3 mi) of the San Fran- Graham County, Arizona. cisco River for spikedace. 8 ...... Gila River ...... FMC Spikedace and Loach 165.1 km (102.6 mi) of the 12.9 km (7.2 mi) of the Gila Minnow Management Plan Gila River. River owned by FMC or its Upper Gila River, Including subsidiaries. Bear Creek and Mangas Creek Grant County, New Mexico. 8 ...... Bear Creek ...... FMC Spikedace and Loach 31.4 km (19.5 mi) of Bear 1.9 km (1.2 mi) of Bear Creek Minnow Management Plan Creek. owned by FMC or its sub- Upper Gila River, Including sidiaries. Bear Creek and Mangas Creek Grant County, New Mexico. 8 ...... Mangas Creek ...... FMC Spikedace and Loach 9.1 km (5.7 mi) of Mangas 7.9 km (4.9 mi) of Mangas Minnow Management Plan Creek. Creek owned by Freeport Upper Gila River, Including McMoRan or its subsidi- Bear Creek and Mangas aries. Creek Grant County, New Mexico.

Exclusions Based on Economic Impacts conservation efforts for spikedace and associated impacts are those not Under section 4(b)(2) of the Act, we loach minnow; some of these costs will expected to occur absent the consider the economic impacts of likely be incurred regardless of whether designations of critical habitat for the specifying any particular area as critical we designate critical habitat (baseline). species. In other words, the incremental habitat. In order to consider economic The economic impact of the final costs are those attributable solely to the impacts, we prepared a draft economic critical habitat designations is analyzed designations of critical habitat above analysis of the critical habitat by comparing scenarios both ‘‘with and beyond the baseline costs; these are designations and related factors (IEc. critical habitat’’ and ‘‘without critical the costs we consider in the final 2011). The draft analysis, dated July 6, habitat.’’ The ‘‘without critical habitat’’ designations of critical habitat. The 2011, was made available for public scenario represents the baseline for the analysis looks retrospectively at review from October 4, 2011, through analysis, considering protections baseline impacts incurred since the November 3, 2011 (76 FR 61330). already in place for the species (e.g., species was listed, and forecasts both Following the close of the comment under the Federal listing and other baseline and incremental impacts likely period, a final analysis (dated January Federal, State, and local regulations). to occur with the designations of critical 24, 2012) of the potential economic The baseline, therefore, represents the habitat. effects of the designations was costs incurred regardless of whether While we think that the incremental developed taking into consideration the critical habitat is designated. The ‘‘with effects approach is appropriate and public comments and any new critical habitat’’ scenario describes the meets the intent of the Act, we have information (IEc 2012). incremental impacts associated taken a conservative approach in this The intent of the final economic specifically with the designations of instance to ensure that we are fully analysis (FEA) is to quantify the critical habitat for the species. The evaluating the probable effects of this economic impacts of all potential incremental conservation efforts and designation. Given that we do not have

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a new definition of ‘‘destruction or final designation based on a co-located at Fort Huachuca because of adverse modification,’’ there may be disproportionate economic impact to the BSETR and the unique certain circumstances where we may any entity or sector. A copy of the FEA environmental setting in which it want to evaluate impacts beyond those with supporting documents may be occurs, which allows for specialized that are solely incremental. Such is the obtained by contacting the Arizona electronic testing. According to Fort case with spikedace and loach minnow, Ecological Services Field Office (see Huachuca, the BSETR and R–2303 where we have extensive case law and ADDRESSES) or by downloading from the restricted airspace are vital resources to determinations of effects that suggest we Internet at http://www.regulations.gov national security that are not duplicated gather information concerning not only or at http://www.fws.gov/southwest/es/ elsewhere within the United States. For incremental effects, but also coextensive arizona/. the BSETR, Fort Huachuca notes that effects. ‘‘the metal-bearing mountain ranges on The FEA also addresses how potential Exclusions Based on National Security Impacts the Fort create conditions conducive to economic impacts are likely to be testing and that these conditions are not distributed, including an assessment of Under section 4(b)(2) of the Act, we replicated anywhere else in the United any local or regional impacts of habitat consider whether there are lands owned States with the only other known conservation and the potential effects of or managed by the Department of location in the world in the outback of conservation activities on government Defense (DOD) where a national security Australia (Fort Huachuca 2011).’’ With agencies, private businesses, and impact might exist. In preparing these respect to the R–2303 restricted individuals. Decision-makers can use designations, we determined that the airspace, Fort Huachuca notes that the this information to assess whether the lands within the designations of critical special restricted airspace that extends effects of the designations might unduly habitat for spikedace and loach minnow downward to the ground surface is burden a particular group or economic are not owned or managed by the DOD. critical for the training of Unmanned sector. Finally, the FEA considers those A nexus exists, however, between Aerial Systems operators for the Army, costs that may occur in the 20 years critical habitat in the San Pedro River in Marines, National Guard, and following the designation of critical Subunit 3 and groundwater pumping by Department of Homeland Security. Fort habitat, which was determined to be the the United States Army Garrison Fort Huachuca notes that this type of appropriate period for analysis based on Huachuca (Fort Huachuca) in Cochise restricted airspace, which extends to the the data available during the analysis. County, Arizona. An additional nexus is ground surface, is not duplicated The FEA quantifies economic impacts of created by the geographic areas not anywhere else in the United States, and owned but designated for use by Fort spikedace and loach minnow that this is one of the only Military Huachuca. Because of this, and in conservation efforts associated with the Restricted Airspace complexes in the response to comments received from following categories of activity: Water country: (1) Whose activation has no Fort Huachuca, we completed a use and management; livestock grazing; impact on commercial air traffic balancing analysis of the benefits of recreation; species management; corridors; and (2) allows for unmanned inclusion and the benefits of exclusion residential and commercial aircraft to have priority over manned of lands in the San Pedro River in development; transportation, fire aircraft for testing, training, and border Subunit 3. management; and Tribal lands. security. Fort Huachuca cites several The FEA estimates that no significant Fort Huachuca other examples of the importance of economic impacts are likely to result their activities to national security; from the designation of critical habitat. Fort Huachuca is located in Cochise however, the BSETR and the unique Quantified incremental impacts are County, Arizona, approximately 15 environmental settings in which it estimated to be $2.95 million to $6.7 miles north of the international border million over 20 years ($261,000 to with Mexico. While the area designated occurs, as well as the R–2303 restricted $592,000 annually) using a discount rate as Fort Huachuca itself does not occur airspace, were of greatest concerns in of seven percent. The San Pedro River along the San Pedro River, Fort this evaluation due to lack of duplicate Unit, is anticipated to bear the highest Huachuca officials indicated in their conditions elsewhere in the United incremental costs in both the low and comment letter that there are geographic States. high end scenarios. Quantified areas designated for Department of To carry out these missions, Fort incremental costs are related to an Defense (DOD) use including the Buffalo Huachuca pumps groundwater to serve anticipated large and costly consultation Soldier Electronic Test Range (BSETR), its on-base military and civilian at Fort Huachuca Military Reservation, R–2303 restricted airspace, and population. Fort Huachuca’s pumping as well as annual monitoring costs on groundwater resources in a regional results in both removal of groundwater the San Pedro River of $100,000 to aquifer of the Sierra Vista Subwatershed from storage in the regional aquifer and $200,000 annually. It should be noted of the San Pedro River that are all the capture of water from discharge. that the San Pedro River has been located within critical habitat in Unit 3. Groundwater in storage is that which excluded under section 4(b)(2) of the The BSETR covers approximately 10.5 resides in an aquifer. Such stored water Act and is not part of the final square kilometers (4.1 square miles), may be discharging to a spring or designation, due to national security with 10.1 square kilometers (3.9 square waterway. Water withdrawn from the impacts at Fort Huachuca. The next miles) off-post and encompassing the ground by wells initially derives largest quantified incremental impacts entire 60 km (30.7 mi) of the critical exclusively from storage. As pumping are expected in the Gila River unit habitat proposed along the San Pedro. continues, increasing proportions of primarily related to anticipated costs Their R–2303 restricted airspace covers water are derived from the capture of related to riparian fencing construction. 3.9 square kilometers (1.5 square miles), discharge, and decreasing proportions In conclusion, there is not significant with 3.4 square kilometers (1.3 square are derived from storage. In other words, economic impact are likely to be a result miles) off-post and nearly totally ground water wells are withdrawing not from the designation of critical habitat encompassing the critical habitat along only water residing in the aquifer, but for these two species. As a result, the the San Pedro River. also water that was otherwise destined Secretary is not exercising his discretion Fort Huachuca notes that the Army to become the surface flow of a stream to exclude any particular area from the and Joint Military testing community is or be available to sustain riparian

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vegetation. If water withdrawal $10 million in a 4-year period for regulatory standard of section 7(a)(2) of continues unmitigated, it will conservation work. the Act under which consultation is eventually deplete storage, reverse the The biological opinion addressed completed. Federal agencies must also flow direction of groundwater, and potential impacts of actions taken by consult with us on actions that may capture (dewater) the stream itself. Fort Huachuca on Huachuca water affect a listed species and refrain from Deprivation of the base flow of the San umbel (Lilaeopsis schaffneriana var. undertaking actions that are likely to Pedro River could eventually cause recurva) with critical habitat, jeopardize the continued existence of perennial reaches to become southwestern willow flycatcher such species. The analysis of effects of intermittent or ephemeral. While these (Empidonax traillii extimus) with a proposed project on critical habitat is portions of the San Pedro River are not critical habitat, Mexican spotted owl separate and different from that of the currently occupied by either species, (Strix occidentalis lucida), lesser long- effects of a proposed project on the such a change in the hydrologic regime nosed bat (Leptonycteris curasoae species itself. The jeopardy analysis of the San Pedro River, depending upon yerbabuenae), Sonora tiger salamander evaluates the action’s impact to survival the reach in which it occurred, may not (Ambystoma tigrinum stebbinsi), and recovery of the species, while the allow the San Pedro River to facilitate Huachuca springsnail (Pyrgulopsis destruction or adverse modification the expansion of the geographic thompsoni), Ramsey Canyon leopard analysis evaluates the action’s effects to distribution of spikedace and loach frog (Rana subaquavocalis), Canelo the designated habitat’s contribution to minnow in areas not occupied at the Hills ladies’ tresses (Spiranthes conservation. Therefore, the difference time of listing. Expansion within the delitescens); bald eagle, (Haliaeetus in outcomes of these two analyses geographic historic range of the species leucocephalus); jaguar (Panthera onca); represents the regulatory benefit of is important to the conservation of the spikedace with critical habitat; Gila critical habitat. This will, in many species, as identified in the ruleset for topminnow (Poeciliopsis occidentalis instances, lead to different results and ‘‘2b’’ areas. occidentalis), and desert pupfish different regulatory requirements. Thus, The potential impacts of groundwater (Cyprinodon macularius). With respect critical habitat designations may pumping by Fort Huachuca on several to the critical habitat designation, Fort provide greater benefits to the recovery threatened and endangered species are Huachuca notes they already completely of a species than would listing alone. described in detail in a 2007 section 7 offset groundwater pumping associated However, for some species, and in biological opinion (Service 2007; with on-post groundwater use, and are some locations, the outcome of these required to mitigate an additional 1,000 analyses will be similar, because effects Service 2002b and Service 2002c). This acre feet of groundwater use due to off- to habitat will often also result in effects opinion also details the actions taken by post groundwater usage at an estimated to the species. In the case of spikedace Fort Huachuca to minimize the effects cost of $20,000 to $40,000 per acre foot, and loach minnow in the San Pedro of their groundwater pumping. These or a total cost of $20 million to $40 River, consultation would occur strictly actions are numerous, and include million. Fort Huachuca further notes based on critical habitat as the species fixture upgrades (i.e., replacement of that the completed biological opinion are absent from this stream. Therefore, high water use plumbing fixtures with allows for up to 16,000 employees, this principal benefit of section 7 low water use fixtures), facility which limits their flexibility with consultation under the Act would be a infrastructure removal/consolidation respect to DOD’s needs to ‘‘* * * bring benefit of inclusion of the San Pedro (i.e., demolition of facilities), aggressive additional high priority, high visibility within the designation. BLM manages leak detection and repair, water missions to the fort (Fort Huachuca 50.6 km (31.4 mi), or 84 percent, of the conservation education, and 2011, p. 11)’’. They conclude that any land along the portion of the San Pedro implementation of a strict landscape additional restrictions placed on them River included within the designation, watering policy in military family have a strong probability of impacting so actions taken by them or on their housing. Fort Huachuca has also the missions currently present at Fort lands would likely result in section 7 undertaken groundwater recharge, Huachuca as well as DOD’s flexibility to consultation for any potential effects to acquisition of conservation easements to respond to changing requirements in critical habitat for spikedace or loach reduce future developments, mitigation theater and to protect the lives of minnow. for increases in personnel, participation military personnel (Fort Huachuca 2011, An additional benefit of including in and providing funding to the Upper p. 11). portions of the San Pedro River within San Pedro Partnership (USPP), and In a 2011 court decision (See Center the critical habitat designation for development of a strategic plan for for Biological Diversity et al. v. Salazar spikedace and loach minnow is that it water mitigation. et al. 4:07-cv-00484–AWT), United provides an additional 59.8 km (37.2 According to the biological opinion, States District Court, District of mi) of critical habitat within the costs to Fort Huachuca for this work are Arizona), the completed biological southeastern portion of their historical considerable. As noted in the biological opinion was deemed inadequate in range. The San Pedro River has opinion, Fort Huachuca typically addressing recovery of the Huachuca collection records for both species that invests $3.3 to $5.5 million per year in water umbel and the Southwestern begins in the 1840s and spans more than environmental, natural resources, and willow flycatcher, among other factors, 120 years. We categorized the San Pedro cultural projects. From 1997 through and Fort Huachuca will be required to River as a 2a stream in this rule, as it 2006, Fort Huachuca spent over $42 reconsult with the Service. was not identified as occupied at listing million in those categories exclusive of by either species, but has the features the $12 million spent for large Benefits of Inclusion—Fort Huachuca essential to the conservation for construction (effluent recharge and The principal benefit of including an spikedace and loach minnow and would extension of an effluent distribution area in a critical habitat designation is serve as an extension of occupied system) projects. The biological opinion the requirement for Federal agencies to habitat in Aravaipa Creek within Unit 3. notes that recently, funding emphasis ensure actions they fund, authorize, or Public education is often cited as has shifted toward management of carry out are not likely to result in the another possible benefit of including threatened and endangered species, and destruction or adverse modification of lands in critical habitat as it may help Fort Huachuca spent an estimated any designated critical habitat, the focus conservation efforts on areas of

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high value for certain species. A critical anticipates that number could rise to lands in final critical habitat for habitat designation can inform the 16,000. They note that any additional spikedace and loach minnow. public about the Act, listed species, restrictions to water usage could affect Exclusion Will Not Result in Extinction their habitat needs, and conservation. their ability to increase staffing when of the Species—Fort Huachuca Only 9.2 km (5.7 mi), or 16 percent, of needed, or carry out missions critical to the portion of the San Pedro within the national security. Further, because of The San Pedro River is not currently designation are on private lands; the unique conditions within the occupied by either spikedace or loach however, because this area is indirectly BSETR, these missions could not be minnow. Loach minnow were last tied to Fort Huachuca, and Fort moved to another location as no other detected in 1961, and spikedace in 1966 Huachuca can have a staff of up to areas within the United States currently (ASU 2002). The San Pedro represents 16,000 individuals and interacts with have those conditions. With the recent a portion of the streams included within other management groups through the litigation on the existing biological Unit 3, which also includes Aravaipa Upper San Pedro Partnership, the opinion, and the requirement that Creek, Hot Springs Canyon, Redfield educational benefits may be expanded consultation be completed again, the Canyon, and Bass Canyon. As a result, beyond private landowners immediately Fort believes there is both uncertainty as this portion of the species range would adjacent to the stream. to what measures may be required of not be void of protected habitat. Finally, The designation of critical habitat them through section 7 consultation to the Service has identified eight units for may strengthen or reinforce some resolve the court’s concern, as well as designation as critical habitat, and the Federal laws, such as NEPA or the Clean strong evidence that third party San Pedro River represents a portion of Water Act. These laws analyze the litigation may influence actions the habitat within one of eight units. potential for projects to significantly required of them in the future. Because the San Pedro is unoccupied, affect the environment. Critical habitat represents approximately eight percent may signal the presence of sensitive Weighing Benefits of Exclusion Against of the overall proposed critical habitat habitat that could otherwise be missed Benefits of Inclusion—Fort Huachuca designation for either spikedace or loach in the review process for these other We reviewed and evaluated the minnow, does not represent the only environmental law. Because multiple benefits of inclusion and the benefits of critical habitat designated within Unit 3, listed species are known to occur along exclusion of the 59.8-km (37.2-mi) and will receive some protection the San Pedro River, the overall impact stretch of the San Pedro River for which through section 7 consultation for other of the designation in strengthening or Fort Huachuca has requested exclusion species, we conclude that excluding the reinforcing other laws is somewhat from these designations of critical San Pedro River will not result in diminished as there have been and habitat. Since this portion of the San extinction of the species. Therefore, the would continue to be awareness for Pedro River is unoccupied, a benefit of Secretary is exercising his discretion to other species listed under the Act that inclusion of this portion of the San exclude the 59.8-km (37.2-mi) stretch of would lead to conservation measures. Pedro River would be the requirement the San Pedro River from the of section 7 consultation under the Benefits of Exclusion—Fort Huachuca designations of critical habitat for adverse modification standard. spikedace and loach minnow. As noted above, there are benefits to However, we believe there would be spikedace and loach minnow from minimal additional regulatory and Exclusions Based on Other Relevant having this portion of the San Pedro educational benefits from a designation Impacts River protected as critical habitat for the of critical habitat for spikedace and Under section 4(b)(2) of the Act, we two species, particularly given that it is loach minnow because multiple listed consider any other relevant impacts, in currently unoccupied by either species. species are known to occur along the addition to economic impacts and However, the minimal conservation and San Pedro River and are currently being impacts on national security. We regulatory benefits gained through managed. consider a number of factors including inclusion of this area as critical habitat Because of the unique conditions whether the landowners have developed for spikedace and loach minnow are at within the BSETR, the critical national any HCPs or other management plans least partially offset by the fact that this security missions could not be moved to for the area, or whether there are area is already managed for a number of another location as no other areas conservation partnerships that would be other species under which protections within the United States currently have encouraged by designation of, or would be in place, including those those conditions. Therefore, exclusion exclusion from, critical habitat. In covered by the biological opinion, as of these lands from critical habitat will addition, we look at any tribal issues, discussed above. allow Fort Huachuca to continue their and consider the government-to- According to Fort Huachuca’s critical national security missions. government relationship of the United comment letter, inclusion of the San Therefore, in consideration of the States with tribal entities. We also Pedro as critical habitat for spikedace potential impact to national security, we consider any social impacts that might and loach minnow has a high determined the significant benefits of occur because of the designations. probability of negative impacts to exclusion outweigh the benefits of missions that are essential to national inclusion in the critical habitat Land and Resource Management Plans, security. While actions taken by Fort designation. Conservation Plans, or Agreements Huachuca are already analyzed for In summary, we find that excluding Based on Conservation Partnerships effects to other species, Fort Huachuca this 59.8-km (37.2-mi) stretch of the San We consider a current land states that, should critical habitat be Pedro River from this final critical management or conservation plan (HCPs designated in the San Pedro River, habitat will preserve Fort Huachuca’s as well as other types) to provide additional restrictions may result for ability to continue with their missions adequate management or protection if it protection of spikedace and loach critical to national security. This benefit meets the following criteria: minnow critical habitat, particularly as of continuing critical national security (1) The plan is complete and provides both species require running streams for missions are significant and outweigh the same or better level of protection habitat. Fort Huachuca currently has a the minimal additional regulatory and from adverse modification or staff of approximately 13,100, but educational benefits of including these destruction than that provided through

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a consultation under section 7 of the government-to-government contaminants from overland flow, Act; consultations with tribes. stabilizes banks and reduces erosion (2) There is a reasonable expectation Yavapai-Apache Nation—The and siltation, and maintains that the conservation management Yavapai-Apache Nation submitted a temperatures by preserving vegetation strategies and actions will be comment letter during the first comment that provides shading of the stream implemented for the foreseeable future, period in 2010 in which they discuss channel (PCEs 1 and 2). In addition, the based on past practices, written measures in place to protect the Verde Resolution resolved that there would be guidance, or regulations; and River and its surrounding habitat on the no stocking of nonnative fishes (PCE 5), (3) The plan provides conservation lands of the Yavapai-Apache Nation. and that livestock, grazing, construction, strategies and measures consistent with According to these comments, the and other activities would be minimized currently accepted principles of Yavapai-Apache Nation is to assure that no net loss of habitat for conservation biology. implementing conservation measures spikedace and loach minnow occurs We received information and designed to preserve the Verde River and that no permanent modification of management plans from four different and its riparian corridor for the benefit habitat essential to spikedace and loach entities, including the Yavapai-Apache of all species, and in order to protect the minnow is allowed. The Resolution also Nation, White Mountain Apache Tribe, traditional and cultural practices of the details a commitment by the Yavapai- the San Carlos Apache Tribe, and from Nation. The Yavapai-Apache Nation’s Apache Nation to continue to cooperate FMC Corporation. We have identified continued efforts to work cooperatively with the Service on a variety of issues, the benefits of inclusion and the with the Service to protect federally including habitat monitoring and benefits of exclusion for each of these listed species have been demonstrated surveys. management plans, and we carefully through adoption of a Southwestern In their 2010 comment letter, the weighed the two sides to evaluate Willow Flycatcher Management Plan, Yavapai-Apache Nation notes that, whether the benefits of exclusion dated May 25, 2005, which details under the Resolution, they have taken outweigh those of inclusion. objectives for protection of the riparian additional steps to protect the Verde Tribal Exclusions community on Tribal lands. The River and its habitat. Specifically, they Yavapai-Apache Nation notes that the note that the Yavapai-Apache Nation’s In accordance with the Secretarial habitat protected under the Tribal Housing Department and Order 3206, ‘‘American Indian Tribal Southwestern Willow Flycatcher Planning Committee do not allow Rights, Federal-Tribal Trust Management Plan overlaps those areas development within the riparian Responsibilities, and the Endangered proposed as critical habitat for conservation corridor. The Yavapai- Species Act’’ (June 5, 1997); the spikedace. Because the existing Apache Nation has also taken steps to President’s Memorandum of April 29, Management Plan requires that the educate Tribal members on the 1994, ‘‘Government-to-Government habitat of the Verde River be protected importance of protecting and preserving Relations with Native American Tribal and preserved for the flycatcher, its the Verde River and its riparian habitat Governments’’ (59 FR 22951); protections similarly extend to the for future generations. The Yavapai- President’s Memorandum of November spikedace. Apache Nation further notes that they 5, 2009, ‘‘Tribal Consultation’’ (74 FR More specifically to spikedace and have pursued and secured grants that 57881); Executive Order 13175; and the loach minnow and their habitat, the will enable them to examine ways to relevant provision of the Departmental Yavapai-Apache Nation adopted Tribal protect Verde River water quality and Manual of the Department of the Interior Resolution 46–2006. Resolution 46– remove invasive plant species from the (512 DM 2), we believe that fish, 2006, completed in June of 2006, details riparian corridor. The Yavapai-Apache wildlife, and other natural resources on land use restrictions and management Nation is examining how possible tribal lands are more appropriately plan goals along the Verde River restoration activities and instream flow managed under tribal authorities, ‘‘* * * in order to continue to protect regimes could improve the health of policies, and programs than through the traditional and cultural practices of riparian habitat within the Verde River Federal regulation wherever possible the Nation, and to preserve those PCEs and Beaver Creek to provide for and practicable. In most cases, found within the riparian corridor of the restoration of native plants. Finally, the designation of tribal lands as critical Verde River which are essential to Yavapai-Apache Nation notes in their habitat provides very little additional native wildlife species, including comment letter that they are continuing conservation benefit to endangered or species listed as endangered or to improve their working relationship threatened species. Conversely, such threatened by the federal government with the Service through improved designation is often viewed by tribes as under the Endangered Species Act, such coordination. These comments an unwarranted and unwanted intrusion as the federally listed spikedace and demonstrate that the Yavapai-Apache into tribal self-governance, and may loach minnow (Yavapai-Apache Nation Nation has begun and continues to negatively impact a positive 2006).’’ implement the Resolution, and provides government-to-government relationship The Resolution provides for the Service with the assurance that between the Service and tribal conservation of the PCEs for spikedace implementation of the Resolution is governments essential to achieving a and loach minnow both through likely to continue. mutual goal of successfully managing conservation of existing habitat, and The Yavapai-Apache Nation notes ecosystems upon which endangered and through restriction of some activities. that a critical habitat designation on threatened species depend. When The resolution established a riparian their lands would have adverse impacts conducting our analysis under section conservation corridor along both sides to the Yavapai-Apache Nation and its 4(b)(2) of the Act, we consider our of the Verde River that encompasses the ability to exist within its permanent existing and future partnerships with critical habitat designations. Protection Tribal homeland. Specifically, they tribes and existing conservation actions and conservation of the riparian believe these impacts will include that tribes have implemented or are corridor minimizes disturbance in the interfering with the sovereign right of currently implementing. We also take active channel, protects vegetation, the Yavapai-Apache Nation to protect into consideration conservation actions which in turn can act as a buffer strip and control its own resources; that are planned as a result of ongoing and filter out sediment and undermining the positive and effective

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government-to-government relationship Public education is often another comments submitted during the public between the Yavapai-Apache Nation possible benefit of including lands in comment periods on this proposed rule, and the Service; hampering or confusing critical habitat as it may help focus tribes have stated that designation of the Yavapai-Apache Nation’s own long- conservation efforts on areas of high critical habitat would negatively impact standing protections for the Verde River value for certain species. The Service government-to-government relations. and its habitat; imposing an additional will continue ongoing coordination with In the case of the critical habitat and disproportionate impact on the the Yavapai-Apache Nation. However, designations for spikedace and loach Yavapai-Apache Nation’s overall land we note that the Yavapai-Apache Nation minnow, the Yavapai-Apache Nation base, and adding additional economic has already undertaken education of has indicated that designation on the and administrative costs, and Tribal members, as noted in their Yavapai-Apache Reservation is not potentially personnel burdens to the comment letter in which they indicate necessary to protect the habitat as the Yavapai-Apache Nation in order to meet that they have taken steps to educate Nation already protects the riparian increased section 7 consultations and Tribal members on the importance of areas under its jurisdiction. They further other requirements under the Act. A protecting and preserving the Verde note that such a designation is not only Federal nexus exists for land use River and its riparian habitat for future unwarranted but would be disruptive of decisions or other tribal actions which generations. the Nation’s exercise of its own require approval by the Bureau of Finally, the designation of critical sovereign authority over its Tribal Indian Affairs due the fact that the habitat may strengthen or reinforce resources and lands. In addition, they United States holds the Yavapai Apache some Federal laws, such as NEPA or the state that the designation of critical land in trust, A federal nexus could also Clean Water Act. These laws analyze the habitat on Yavapai-Apache Nation lands exists if a tribal action utilizes other potential for projects to significantly would interfere with their ability to Federal funding, or requires a Federal affect the environment. Critical habitat preserve themselves in their Tribal permit for their actions. The Service may signal the presence of sensitive homeland, and that designation of respects these concerns. habitat that could otherwise be missed critical habitat on the Reservation is in the review process for these other contrary to the United States’ Benefits of Inclusion—Yavapai-Apache environmental laws. However, the Nation obligations under the Apache Treaty of Yavapai-Apache Nation is fully aware of 1852 and to the Constitution of the Those portions of the Verde River on the sensitive habitat on their lands. Yavapai-Apache Nation, which was lands belonging to the Yavapai-Apache approved by the Secretary of the Nation within the critical habitat Benefits of Exclusion—Yavapai-Apache Interior. Finally, they note that designations for spikedace and loach Nation designation of critical habitat on their minnow constitute part of a continuous Under Secretarial Order 3206, lands would lead to restrictions and/or stream habitat for the two species. American Indian Tribal Rights, Federal- other circumstances that would violate Spikedace records exist for both the Tribal Trust Responsibilities and the Verde River and Beaver Creek, although Endangered Species Act, we recognize the trust responsibility of the United they are few in number and only as that we must carry out our States to the Yavapai-Apache Nation, as recent as 1950. We categorized the responsibilities under the Act in a well as the letter and spirit of numerous Verde River as a 1a stream for spikedace manner that harmonizes the Federal Secretarial Orders and Presidential in the rule, as it was identified as trust responsibility to tribes and tribal memoranda, as well as the Department occupied at listing, and supports one or sovereignty while striving to ensure that of the Interior’s own manual. The more of the PCEs for the two species. tribes do not bear a disproportionate Yavapai-Apache Nation notes in their We categorized the Verde River as a 2b burden for the conservation of listed comment letter that they will use their stream for loach minnow, as it was not species, so as to avoid or minimize the own regulatory structure, including known to be occupied at listing. potential for conflict and confrontation. Resolution 46–2006, in protecting the The principal benefit of including an In accordance with the Presidential Verde River and its riparian corridor. area in a critical habitat designation is memorandums of April 29, 1994, and They note they have an ongoing the requirement for Federal agencies to November 9, 2009, we believe that, to commitment to cooperate with the ensure actions they fund, authorize, or the maximum extent possible, tribes are Service on a wide variety of matters, carry out are not likely to result in the the appropriate governmental entities to including habitat monitoring, surveys, destruction or adverse modification of manage their lands and tribal trust and future activities within the riparian any designated critical habitat, the resources, and that we are responsible corridor that may have the potential to regulatory standard of section 7(a)(2) of for strengthening government-to- adversely impact habitat essential to the the Act under which consultation is government relationships with tribes. conservation and recovery of federally completed. The analysis of effects of a Federal regulation through critical listed species such as the spikedace and proposed project on critical habitat is habitat designation will adversely affect loach minnow. separate and different from that of the the tribal working relationships we now We believe there are significant effects of a proposed project on the have and which we are strengthening benefits from exclusion of the portion of species itself. We do consider the Verde throughout the United States. the Verde River on the Yavapai-Apache River occupied, albeit at low numbers. Maintaining positive working Nation’s lands. These benefits include: Section 7 consultation would therefore relationships with tribes is the key to (1) Continuing and strengthening of require both a jeopardy and an adverse implementing natural resource our ongoing coordination with the Tribe modification analysis. The draft and programs of mutual interest, including to promote conservation of spikedace final economic analyses identified a habitat conservation planning efforts. In and loach minnow and their habitat, as future housing project, as well as light of the above-mentioned Secretarial well as other federally listed species; wastewater treatment facilities and Order 3206, and because of their and water development projects, all with sovereignty status, critical habitat (2) Allowing continued meaningful potential ties to Federal funding or designation is typically viewed by tribes collaboration and cooperation in permitting, that could potentially as an unwarranted and unwanted working toward recovering these require section 7 consultation. intrusion into tribal self-governance. In species, including conservation actions

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developed by a partnership with the Beaver Creek/Wet Beaver Creek Game and Fish Code which regulates Tribe that might not otherwise occur. outweigh the benefits of including this fishing, camping, hunting, and other Because the Yavapai-Apache Nation area. recreational activities. The White is the entity that carries out protective Mountain Apache Tribe notes that large Exclusion Will Not Result in Extinction regulations on Tribal trust reservation portions of the Reservation continue to of the Species—Yavapai-Apache Nation land, and we have a working be closed to recreational use. relationship with them, we believe While we believe these stream The White Mountain Apache Tribe exclusion of these lands will yield a segments are important to the notes that they also have a process to significant partnership benefit. There conservation of the species and review and approve all development has been a substantial amount of currently support one or more PCEs, any activities on the Reservation. The Tribal coordination with the Yavapai-Apache direct impacts to the fish themselves Plan and Project Review Panel, among Nation on spikedace and loach minnow, due to exclusion of these areas is other things, investigates impacts to other federally listed species, and water unlikely due to the low numbers of fish sensitive habitats and species, and management issues on the Verde River. remaining in the Verde River. The provides for the implementation of In their comment letter, the Yavapai- protective measures already established mitigation measures to avoid adverse Apache Nation has noted that we have by the Yavapai-Apache Nation will impacts to those resources. Finally, the established a positive and effective ensure that habitat remains in these White Mountain Apache Tribe noted in government-to-government relationship streams for spikedace and loach their comment letter that Tribal fish with them which in and of itself serves minnow and that conservation of the biologists and the sensitive species to protect federally listed species and two species and their habitat will not be coordinator monitor any land operations their habitat. We will continue to work precluded in this area. We therefore or proposed timber sales along the East cooperatively with the Yavapai-Apache believe that excluding those portions of Fork White River, and monitor river Nation on efforts to conserve spikedace the Verde River and Beaver/Wet Beaver levels, so that if river flows fall below and loach minnow. Therefore, Creek on Yavapai-Apache Nation lands a certain level, irrigation ditch gates that excluding these lands from critical will not result in extinction of the serve Tribal member farmlands are habitat would provide the benefit of species. Therefore, the Secretary is closed until such time as stream levels maintaining and strengthening our exercising his discretion to exclude the are restored. existing conservation partnership. 1.2 km (0.8 mi) of the Verde River and The White Mountain Apache Tribe 0.2 km (0.1 mi) of Beaver Creek/Wet has a full-time Sensitive Species Weighing Benefits of Exclusion Against Beaver Creek on Yavapai-Apache Nation Coordinator and Technician who Benefits of Inclusion—Yavapai-Apache lands from the designations of critical coordinate and participate in protection, Nation habitat for spikedace and loach research, management, and We reviewed and evaluated the minnow. administrative activities involving benefits of inclusion and the benefits of White Mountain Apache Tribe—The Federally listed sensitive species on the exclusion of those portions of the Verde White Mountain Apache Tribe provided Reservation, and these individuals are River on the Yavapai-Apache Nation. comments during the first comment responsible for overseeing the The Yavapai-Apache Nation is period in 2010, and incorporated their implementation and ongoing educating Tribal members on the 2000 Loach Minnow Management Plan development of the Loach Minnow importance of conservation of the (White Mountain Apache Tribe 2000) as Management Plan. The goals of the riparian corridor along the Verde River. part of their comments. The Loach Loach Minnow Management Plan are to Further, they are applying restrictions Minnow Management Plan identifies determine and quantify the full extent of for building within the 100-year several Tribal regulation and loach minnow distribution on the floodplain. The Yavapai-Apache Nation management efforts they believe to be Reservation; continue to develop and has indicated they will continue to use beneficial to loach minnow, including strengthen management actions that their existing regulatory structure in Resolution #89–149, which designates effectively address species threats and regulating development in this area to streams and riparian zones as Sensitive that provide adequate protection for, protect spikedace and loach minnow Fish and Wildlife areas, requiring that and sustainability of, existing and their habitat. Further, exclusion of authorized programs ensure these zones Reservation loach minnow populations these lands from critical habitat will remain productive for fish and wildlife. and habitats; complete the development help preserve and strengthen the The White Mountain Apache Tribe and ongoing maintenance of Tribal data, conservation partnership we have additionally adopted a Water Quality information, and mapping for this and developed with the Yavapai-Apache Protection Ordinance in 1999 to other native fish species; and evaluate Nation. ‘‘promote the health of Tribal waters and refine the application of Plan We believe that the Verde River and the people, plants and wildlife that management practices, over time, in a supports one or more of the PCEs for depend on them through holistic manner that promotes the practical and spikedace and loach minnow. However, management and sustainable use.’’ effective long-term conservation of all we believe the benefits to be gained The White Mountain Apache Tribe Reservation native fish populations and through the Yavapai-Apache Nation’s has also adopted Livestock and Range assemblages, including those of loach Tribal Resolution exceed those that Management Plans, which regulate their minnow (White Mountain Apache Tribe would be gained through a critical stocking, rotation, and management 2000). habitat designation. Based on the practices for their Cattle Associations. The Loach Minnow Management Plan information provided by the Yavapai- According to their comments, their plan provides an action and strategy outline Apache Nation in their comment letter is aimed at ‘‘maintaining or improving with eight steps that provide additional and Tribal resolution, the concerns a stable and desired vegetative detail on how they will be carried out. outlined by the Yavapai-Apache Nation, community, improving water quality The eight steps and corresponding PCEs and the protective measures already in and quantity, and reducing soil erosion’’ that they may affect include: place, we conclude that the benefits of while providing for livestock. The • Determining the distribution of excluding the 1.2 km (0.8 mi) of the White Mountain Apache Tribe has also loach minnow within Reservation Verde River and 0.2 km (0.1 mi) of established Recreation Regulations and boundaries;

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• Continuing routine surveys and comments received from peer reviewers without critical habitat designation. In expanding efforts to include habitat note that loach minnow in the White addition, Tribal fisheries biologists assessment; continuing to monitor and River are likely highly divergent and participate in review of development refine existing management treatments deserving of management as a distinct projects and timber sales, and can work involving irrigation uses and activities unit. The length of perennial flows with to educate project proponents of the to develop adequate mitigation against suitable habitat parameters, historical species’ needs. related threats; occupancy, and potential current Finally, the designation of critical • Continuing to apply and refine occupancy make this area important to habitat may strengthen or reinforce existing monitoring and mitigation the conservation of the loach minnow. some Federal laws, such as NEPA or the protocols involving low water and/or Both the White River and East Fork Clean Water Act. These laws analyze the drought conditions to provide White River were classified as 1a potential for projects to significantly sustainable protection of loach minnow streams in this designation, indicating affect the environment. Critical habitat populations (PCEs 1 and 4); they were known to be occupied at may signal the presence of sensitive • Development of contingency plans listing. Both are considered currently habitat that could otherwise be missed with responses to potential catastrophic occupied by loach minnow. in the review process for these other events; evaluating and refining existing The principal benefit of including an environmental laws. However, because nonnative fish management and area in a critical habitat designation is the White Mountain Apache Tribe is mitigation practices to provide the requirement for Federal agencies to fully aware of the sensitive habitat on sustainable protection of loach minnow ensure actions they fund, authorize, or their lands, designation of critical populations and habitat (PCE 1); and carry out are not likely to result in the habitat is not necessary to heighten • Organizing data collection, destruction or adverse modification of awareness when applying these laws. handling, storage, and maintenance any designated critical habitat, the Benefits of Exclusion—White Mountain among partners; and continuing to regulatory standard of section 7(a)(2) of Apache Tribe monitor and refine existing Tribal Plan the Act under which consultation is and Project Review Process, completed. The analysis of effects of a Please see the discussion on management plans, and practices to proposed project on critical habitat is Secretarial Order 3206, American Indian meet loach minnow and native fish separate and different from that of the Tribal Rights, and Federal-Tribal Trust management goals. effects of a proposed project on the Responsibilities and the Endangered The Tribe additionally notes that they species itself. The analysis of effects of Species Act under ‘‘Benefits of have a long-standing history of a proposed project on critical habitat is Exclusion—Yavapai Apache Nation’’ conservation efforts involving listed separate and different from that of the above. As stated there, we seek to species and cooperation with the effects of a proposed project on the balance our responsibilities under the Service and other entities. These efforts species itself. The jeopardy analysis Act in a manner that harmonizes the include development of management evaluates the action’s impact to survival Federal trust responsibility to tribes and plans for Mexican spotted owls (Strix and recovery of the species, while the tribal sovereignty while ensuring that occidentalis lucida), Arizona willow destruction or adverse modification tribes do not bear a disproportionate (Salix arizonica), Apache trout analysis evaluates the action’s effects to burden for the conservation of listed (Oncorhynchus gilae apache), and the designated habitat’s contribution to species. We also note that, to the Mexican gray wolf (Canis lupus baileyi). conservation. Therefore, the difference maximum extent possible, tribes are the Their comment letter notes additional in outcomes of these two analyses appropriate governmental entities to conservation efforts, incorporated represents the regulatory benefit of manage their lands and tribal trust herein by reference, and the recognition critical habitat. This will, in many resources, and we are responsible for that they have received for their instances, lead to different results and strengthening government-to- conservation ethic. different regulatory requirements. Thus, government relationships with tribes. critical habitat designations may We further believe that Federal Benefits of Inclusion—White Mountain provide greater benefits to the recovery regulation through critical habitat Apache Tribe of a species than would listing alone. designation can adversely affect the Those portions of the mainstem White However, for some species, and in some tribal working relationships we now River and the East Fork White River on locations, the outcome of these analyses have and which we are strengthening lands belonging to the White Mountain will be similar, because effects to habitat throughout the United States. Apache and within the critical habitat will often also result in effects to the In the case of this critical habitat designations for loach minnow are part species. Lands being evaluated for designation for loach minnow, the of a continuous stream habitat for the exclusion in this unit are occupied by White Mountain Apache Tribe states in species. Loach minnow records exist for loach minnow and are subject to their comment letter that Federal both streams. We categorized the consultation requirements of the Act. common law embodied in the decisions mainstem White River and the East Fork Public education is often another of the U.S. Supreme Court, the Indian White River as 1a streams for loach possible benefit of including lands in Reorganization Act (IRA), the Tribe’s minnow in the proposed rule, as they critical habitat as it may help focus IRA Constitution, and Congressional were identified as occupied at listing, conservation efforts on areas of high policies and laws established for the and supports one or more of the PCEs value for certain species. The Service protection of Indian natural resources for the species. Neither stream is known will continue ongoing coordination with and forests confirm their retained or to have been occupied by spikedace. the White Mountain Apache Tribe for residual inherent sovereign authority to Those portions of the mainstem White exchange of relevant information. promulgate regulations and River and East Fork White River on However, we note that the White management plans to protect and lands belonging to the White Mountain Mountain Apache Tribe has developed manage Tribal trust lands, wildlife, Apache Tribe that are within the critical a management plan for loach minnow, forests and other natural resources. habitat designation for loach minnow and currently employs a Sensitive They cite numerous authorities that may support a genetically distinct Species Coordinator through which confirm their authority over wildlife population of loach minnow, and education of Tribal members can occur and other natural resources existing

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within their ancestral lands and to However, for some species, and in some San Carlos Apache Tribe—The San govern both their members and their locations, the outcome of these analyses Carlos Apache Tribe submitted territory and retain sovereign interests will be similar, because effects to habitat comments during the second comment in activities that occur on land that they will often also result in effects to the period. Within their comment letter the own and control. species. Lands being evaluated for Tribe notes that Traditional Ecological The White Mountain Apache Tribe exclusion in this unit are occupied by Knowledge (TEK) is ‘‘* * * a key and states in their comment letter that the both species and are subject to fundamental principle of species benefits of excluding White Mountain consultation requirements of the Act. conservation and land management on Apache Tribal lands from critical The White Mountain Apache Tribe the Reservation,’’ and that TEK uses an habitat will continue to: ‘‘(1) Advance clearly explained their sovereign ecosystem-based approach to land and the Service’s Federal Indian Trust authority to promulgate regulations and species management and preservation. obligations, deference for tribes to management plans to protect and The Tribe notes that use of TEK by develop and implement tribal manage Tribal trust lands, wildlife, Tribal government, Tribal leaders, conservation and natural resources forests, and other natural resources, and Tribal elders, and the Apache people management plans for the lands and cited numerous authorities that confirm results in incorporation of adaptive resources, which includes the Loach their authority over wildlife and other management practices for land and minnow and other federal trust species; natural resources existing within their species management and preservation. (2) maintain the effective working ancestral lands. In addition, they have The Tribe also notes that jeopardizing relationship to promote the shown a commitment to other federally the existence of any species would be conservation of the Loach minnow and listed species, such as the Mexican counter to their beliefs, and that TEK their habitats; (3) perpetuate a spotted owl (Strix occidentalis lucida) was critical in the development of the continued and meaningful collaboration and the Arizona willow (Salix 2005 Fishery Management Plan (FMP). and cooperation on the Loach minnow arizonica). In their comment letter, the Tribe management and other resources of Based on our working relationship notes that the FMP does not specifically interest to the federal government; and with the Tribe, their demonstration of address loach minnow, but that both (4) enhance the provision of conservation through past efforts, and loach minnow and spikedace benefit conservation benefits to riparian the protective provisions of the Loach from management actions in the FMP. ecosystems and a host of species, Minnow Management Plan, we The FMP was adopted in 2005, and has including the Loach minnow and their conclude that the benefits of excluding been actively implemented since that habitat, that might not otherwise occur.’’ the 29.0 km (18.0 mi) of the mainstem time on Tribal lands. Under the FMP, We agree with the White Mountain White River and 17.2 km (10.7 mi) of one management step taken to benefit Apache Tribe’s explanation regarding East Fork White River outweigh the spikedace and loach minnow is that the the benefits of exclusion. benefits of including this area. Tribe no longer stocks nonnative fishes in the Bonita Creek or Eagle Creek Weighing Benefits of Exclusion Against Exclusion Will Not Result in Extinction drainages (PCE 5). In addition, the Tribe Benefits of Inclusion—White Mountain of the Species—White Mountain Apache is working with both the Service and the Apache Tribe Tribe AGFD to complete additional survey The principal benefit of including an The current occupancy of streams on work on Eagle Creek. The Tribe is area in a critical habitat designation is the White Mountain Apache Tribe are currently discussing captive the requirement for Federal agencies to unknown due to the proprietary nature propagation of any spikedace or loach ensure actions they fund, authorize, or of Tribal survey information. However, minnow found in Eagle Creek for future carry out are not likely to result in the the information contained in the recovery purposes. destruction or adverse modification of management plan, as well as The Tribe notes that various any designated critical habitat, the commitments to management through departments are taking actions that regulatory standard of section 7(a)(2) of ordinances, codes, and the hiring of a benefit the species. The Recreation and the Act under which consultation is sensitive species coordinator indicate Wildlife Department consults with other completed. The analysis of effects of a that the White Mountain Apache Tribe Tribal departments interested in proposed project on critical habitat is has committed to management of loach restoration activities and, using the separate and different from that of the minnow on their Tribal lands. While we FMP, evaluates impacts on spikedace effects of a proposed project on the continue to believe these stream and loach minnow and their habitats species itself. The analysis of effects of segments are important to the and determines how to prevent or a proposed project on critical habitat is conservation of the species and mitigate any impacts (PCE 1). The Soil separate and different from that of the currently support one or more PCEs, we and Moisture Conservation Department effects of a proposed project on the believe that commitments made by the is developing a project for the removal species itself. The jeopardy analysis White Mountain Apache Tribe in their of nonnative and invasive salt cedar and evaluates the action’s impact to survival management plan and comment letter planting of native species, and has and recovery of the species, while the ensure that habitat remains in these worked with the Recreational and destruction or adverse modification streams for loach minnow. We therefore Wildlife Department in applying the analysis evaluates the action’s effects to believe that excluding those portions of FMP to the proposal. The Recreation the designated habitat’s contribution to the mainstem White River and East Fork and Wildlife Department also surveys conservation. Therefore, the difference White River will not result in extinction all proposed home and construction in outcomes of these two analyses of the species. Therefore, the Secretary projects, and consults with the Tribal represents the regulatory benefit of is exercising his discretion to exclude attorneys, providing information from critical habitat. This will, in many the 29.0 km (18.0 mi) of the mainstem the FMP for use in negotiating water instances, lead to different results and White River and 17.2 km (10.7 mi) of exchanges and in determining different regulatory requirements. Thus, East Fork White River on White mitigation measures for projects that critical habitat designations may Mountain Apache Tribal lands from the may impact listed species or their provide greater benefits to the recovery designations of critical habitat for habitat. Consultation with the of a species than would listing alone. spikedace and loach minnow. Recreation and Wildlife Department is

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for prescribed burns or thinning, and destruction or adverse modification of strategic plans and management plans. wildfire management actions are any designated critical habitat, the Through this team, Tribal members can measured to ensure no net loss or regulatory standard of section 7(a)(2) of be informed of steps necessary to permanent modification to spikedace the Act under which consultation is conservation of spikedace and loach and loach minnow habitat. The Tribe completed. A Federal nexus may exist minnow and their habitat. has also built fencing to exclude for tribal projects such as land leases or The designation of critical habitat livestock grazing in riparian areas water development through either the may strengthen or reinforce some containing native fish or their habitats Bureau of Indian Affairs or the U.S. Federal laws, such as NEPA or the Clean (PCE 1). Army Corps of Engineers. The analysis Water Act. These laws analyze the The Tribe’s comment letter of effects of a proposed project on potential for projects to significantly incorporated information from their critical habitat is separate and different affect the environment. Critical habitat FMP. The FMP has several goals from that of the effects of a proposed may signal the presence of sensitive relevant to native fish management, project on the species itself. The habitat that could otherwise be missed including development and analysis of effects of a proposed project in the review process for these other implementation of integrated, on critical habitat is separate and environmental law. However, because watershed-based approaches to fishery different from that of the effects of a the San Carlos Apache Tribe is fully resource management; conserving, proposed project on the species itself. aware of the sensitive species and enhancing, and maintaining existing The jeopardy analysis evaluates the habitat on their lands, designation of native fish populations and their action’s impact to survival and recovery critical habitat is not necessary to habitats as part of the natural diversity of the species, while the destruction or heighten awareness when applying of the Reservation and preventing, adverse modification analysis evaluates these laws. minimizing, or mitigating adverse the action’s effects to the designated Benefits of Exclusion—San Carlos impacts to all native fishes, especially habitat’s contribution to conservation. Apache Tribe threatened or endangered, and their Therefore, the difference in outcomes of Please see the discussion on habitats when consistent with the these two analyses represents the Secretarial Order 3206, American Indian Reservation as a permanent home and regulatory benefit of critical habitat. Tribal Rights, and Federal-Tribal Trust abiding place for San Carlos Apache This will, in many instances, lead to Responsibilities and the Endangered Tribal members; restoring extirpated different results and different regulatory Species Act under ‘‘Benefits of native fishes and degraded natural requirements. Thus, critical habitat Exclusion—Yavapai Apache Nation’’ habitats when appropriate and designations may provide greater above. As stated there, we seek to economically feasible; increasing Tribal benefits to the recovery of a species than awareness of native fish conservation balance our responsibilities under the would listing alone. However, for some Act in a manner that harmonizes the and values; and aggressively pursuing species, and in some locations, the funding adequate to support all Tribal Federal trust responsibility to tribes and outcome of these analyses will be tribal sovereignty while ensuring that conservation and management activities similar, because effects to habitat will for all native fishes and their habitats. tribes do not bear a disproportionate often also result in effects to the species. burden for the conservation of listed Each of the goals has identified Lands being evaluated for exclusion in objectives, actions, and evaluations, species. We also believe that, to the this unit are occupied by both species maximum extent possible, tribes are the which are incorporated here by and are subject to consultation reference (San Carlos Apache Tribe appropriate governmental entities to requirements of the Act. 2005, pp. 63–71). manage their lands and tribal trust Public education is often another resources, we are responsible for Benefits of Inclusion—San Carlos possible benefit of including lands in strengthening government-to- Apache Tribe critical habitat as it may help focus government relationships with tribes. Evidence of occupancy for Eagle conservation efforts on areas of high We also note that Federal regulation Creek was most recently found in 1989 value for certain species. The Service through critical habitat designation can for spikedace and in 1997 for loach will continue ongoing coordination with adversely affect the tribal working minnow in 1997 (ASU 2002). This area the San Carlos Apache Tribe for relationships we now have and which continues to support one or more of the exchange of relevant information. we are strengthening throughout the PCEs for the two species. The benefits However, we note that the San Carlos United States. of including this stream within the Apache Tribe, through their Recreation In the case of these critical habitat designations include protecting an area and Wildlife Department, surveys all designations for spikedace and loach with a long record of occupancy, and proposed home and construction minnow, the San Carlos Apache Tribe with perennial flows, as well as other projects, and provides information from notes in their comment letter that there PCEs. The length of perennial flows the FMP for use in negotiating water is a unique and distinctive relationship with suitable habitat parameters, exchanges and in determining between the United States and Indian historical occupancy, and current mitigation measures for projects that Tribes, as defined by the Constitution, occupancy by both spikedace and loach may impact listed species or their treaties, statutes, executive orders, and minnow make Eagle Creek an area habitat. The Recreation and Wildlife judicial decisions that differentiate important to the conservation of both Department therefore has an tribes from other entities that work with species. Eagle Creek was classified as a opportunity to provide information or are affected by the Federal 1a stream for both species for these regarding the species and their habitat government. They note that, in designations, indicating it was known to across the Reservation. In addition, per recognition of the responsibilities and be occupied at listing. their comment letter, the San Carlos the relationship between the United The principal benefit of including an Apache Tribe has adopted an States and Indian tribes, the Secretaries area in a critical habitat designation is interdisciplinary team approach to all of Commerce and the Interior issued the requirement for Federal agencies to natural resources matters. The team Secretarial Order 3206, which strives to ensure actions they fund, authorize, or works together to provide an ecosystem ensure that Indian Tribes do not bear a carry out are not likely to result in the management approach in developing disproportionate burden for the

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conservation of listed species. They goals of conserving and enhancing integration of sustainable development conclude that, oftentimes, tribal lands native fishes on the Reservation; considerations within the corporate provide some of the better quality for restoring native fishes and their decision making process; seeking federally protected species because the habitats; and preventing, minimizing or continual improvement of our lands have not been subjected to the mitigating impacts to native fishes, environmental performance; and same development philosophies and among others. In addition, the Tribe has contributing to conservation of pressures as those on non-tribal lands, indicated that, through TEK, they biodiversity and integrated approaches and that tribal conservation practices, practice an ecosystem-based approach to land use planning. In addition, FCM such as those established by the FMP, to land-and-species based management adhere to the ICMM requirement to should be embraced, if not rewarded. and preservation. We conclude that the report its performance against the We believe there are significant benefits to be gained through the FMP, Global Reporting Initiative (GRI) G3 benefits from exclusion of the portion of coordination with the Service and metrics and identify/manage and report those portions of Eagle Creek on the San AGFD, discontinuance of sportfish against key sustainable development Carlos Apache Reservation. These stocking, and proactive measures such risks and opportunities. As part of this benefits include: as captive propagation all indicate that effort, FCX annually establishes (1) Continuing and strengthening of the San Carlos has committed to corporate Sustainable Development our ongoing coordination with the Tribe conservation measures that exceed Performance Targets and reports to promote conservation of spikedace benefits to be gained through a critical progress against those targets in its and loach minnow and their habitat, as habitat designation. We, therefore, annual Working Towards Sustainable well as other federally listed species; conclude that the benefits of excluding Development Report (See www.fcx.com). and the 27.5 km (16.1 mi) of Eagle Creek on In support of the company’s efforts in (2) Allowing continued meaningful Tribal lands of the San Carlos Apache implementing the ICMM Sustainable collaboration and cooperation in Tribe outweigh the benefits of including Development principles, FCX working toward recovering these this area. established a corporatewide species, including conservation actions Biodiversity Task Force in 2010. In Exclusion Will Not Result in Extinction that might not otherwise occur. accordance with these principles and of the Species—San Carlos Apache Because the San Carlos Apache Tribe reporting obligations, FMC has prepared Tribe is the entity that enforces protective these management plans to guide regulations on Tribal trust reservation The Service considers Eagle Creek to actions associated with the management land, and because we have a working be an occupied stream for both of its lands along portions of Eagle relationship with them, we believe spikedace and loach minnow. The Creek, the lower San Francisco River in exclusion of these lands will yield a information provided by the San Carlos Arizona, and portions of the Gila River, significant partnership benefit. As Apache Tribe regarding TEK and the Bear Creek, and Mangas Creek in New noted, the San Carlos Apache Tribe is FMP, as well as their discontinuance of Mexico. According to their management coordinating with the AGFD and the sportfish stocking in the Eagle Creek plans, it is FMC’s intention, through Service on surveys and captive watershed and continued coordination implementation of these plans, to propagation plans. We will continue to with the Service, will help to ensure provide for the long-term protection and work cooperatively with the San Carlos that habitat remains in Eagle Creek for multiple use benefits of these natural Apache Nation on efforts to conserve spikedace and loach minnow, and will systems. spikedace and loach minnow. reduce the potential for harm to the fish. FMC recognizes that the conservation Therefore, excluding these lands from We, therefore, believe that excluding of the spikedace, the loach minnow, and critical habitat would provide the those portions of Eagle Creek on the San other native aquatic species is an benefit of maintaining and Carlos Apache Reservation will not important goal. In the southwest, FMC strengthening our existing conservation result in extinction of the species. has funded studies and granted access partnership. Therefore, the Secretary is exercising his to company land along Eagle Creek for discretion to exclude the 27.5 km (16.1 many years, allowing the development Weighing Benefits of Exclusion Against mi) of Eagle Creek on Tribal lands of the of detailed information on the creek’s Benefits of Inclusion—San Carlos San Carlos Apache Tribe from the native and nonnative fish communities. Apache Tribe designations of critical habitat for In addition, FMC has implemented a As noted above, the San Carlos spikedace and loach minnow. management system on its U–Bar Apache Tribe has indicated a Freeport-McMoRan—Freeport- Ranch, which is located along the upper commitment to TEK, which uses an McMoRan provided two separate Gila River in the vicinity of Cliff in ecosystem-based approach to land and management plans during the second Grant County, New Mexico. The Pacific species management and preservation. comment period. The first plan focuses Western Land Company (PWLC), a In addition, they have developed the on Eagle Creek and the San Francisco subsidiary of FMC, owns the U–Bar FMP, which benefits spikedace and River in Arizona, while the second Ranch. Under FMC’s existing loach minnow by discontinuing focuses on the Gila River, Mangas Creek, management system, the riparian zone nonnative fish stocking in the Bonita and Bear Creek in New Mexico. These adjacent to the Gila River has expanded Creek or Eagle Creek drainages. Further, two plans are evaluated separately in width, benefitting the endangered the Tribe is working with both the below. southwestern willow flycatcher and Service and the AGFD to complete Background—Freeport-McMoRan is a other riparian species. Currently, the U– additional survey work on Eagle Creek, member of the International Council on Bar Ranch supports one of the largest and is discussing captive propagation Mining and Minerals (ICMM). In their flycatcher populations in the Southwest. for spikedace and loach minnow. management plan for Eagle Creek and Freeport-McMoRan has been conducting The Tribe has focused on known areas the San Francisco River, FMC notes surveys for flycatchers since 1994. of concern for the species management, that, as a member of ICMM, their parent The land management practices that and has discontinued stocking of company, FMC Copper & Gold Inc. have allowed the flycatcher to flourish nonnative fishes in the Bonita and Eagle (FCX), adheres to ten sustainable are compatible with the maintenance of Creek watersheds. The FMP contains development principles, including spikedace and loach minnow habitat,

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and the Gila/Cliff Valley segment of the year. No changes were made to 50 CFR 17.22(d) and 17.32(d). The Gila River currently supports the largest management during the time period permit would address all listed fish number of spikedace and loach minnow covered by these plans. species currently found in Eagle Creek of any area within the species’ ranges. and the San Francisco River, as well as Spikedace and Loach Minnow In addition, surveys show that there are other species that might be listed as Management Plan—Eagle Creek and low levels of nonnative fishes in this threatened or endangered in the future. San Francisco River, Greenlee and stream segment. Freeport-McMoRan The Safe Harbor Agreement would be Graham County, Arizona also has funded surveys for spikedace, based on the conservation measures set loach minnow, and other fishes. Freeport-McMoRan owns land and forth in the management plan. Monitoring supported by FMC along water rights in the watersheds of both Eagle Creek. Eagle Creek was Mangas Creek determined that, at that Eagle Creek and the San Francisco occupied by both species at listing, and time, Mangas Creek supported only River, which are used in connection is classified as a 1a stream under this native fish species. Most of the lower with the operation of the Morenci Mine designation. The management plan 9.3 km (5.8 mi) of Mangas Creek is near Clifton, Arizona. Under the current consists of four conservation measures, located on private land belonging to an management plan, FMC will spend up the first of which is investigation and FMC subsidiary, and has been grazed at to $4,000,000 over the next 10 years to construction of a fish passage barrier. moderate levels for decades. investigate, design, and implement Within their management plan, FMC Freeport-McMoRan has previously conservation measures along Eagle commits to completing a feasibility developed and implemented Creek upstream of its diversion dam and study to determine three possible sites management plans for the conservation on the lower San Francisco River near for the construction of a fish barrier of listed species. In 2005, FMC prepared Clifton, Arizona. above the Willow Creek confluence. and submitted a plan to the Service for As part of the overall management Freeport-McMoRan has indicated that the management of the U-Bar Ranch, plan, FMC has established a the area above Willow Creek is most which supported exclusion of the FMC’s coordination process for review of all suitable for a barrier due to the fact that land from the 2006 southwestern willow conservation measures. In order to nonnative fishes still enter Eagle Creek flycatcher critical habitat designation. ensure that their proposed projects are from the San Carlos Apache The following year, FMC prepared and consistent and compatible with the Reservation. Following review of the submitted management plans for the goals and actions of the Gila River Basin proposed sites by the Service, FMC will spikedace and loach minnow in Eagle Native Fishes Conservation Program prepare a preliminary work plan that Creek and in the upper Gila River, in the (Native Fishes Program), under which describes barrier construction, which Gila/Cliff Valley. Those management much of the management of spikedace will be submitted for review to the plans supported the exclusion of FMC’s and loach minnow occurs, FMC will Native Fishes Program by September 1, land along Eagle Creek and the upper develop individual work plans and 2014, using the coordination process Gila River from the 2007 spikedace and submit the plans to the Native Fishes described above. If the Native Fish loach minnow critical habitat Program Technical Committee during Program finds the work plan acceptable, designations. their annual project review period. This and if the barrier will cost $1.5 million Freeport-McMoRan has supported Committee consists of personnel from or less, FMC will prepare an engineering biological surveys for spikedace and the Service, Bureau of Reclamation, study and prepare related documents for loach minnow, as well as other species, USFS, Bureau of Land Management, the fish barrier. Upon approval by the on Eagle Creek for several years by New Mexico Department of Game and Native Fishes Program, FMC will secure allowing access to private lands to Fish, and the AGFD, all of whom are required permits and approvals and researchers, and also contracted with actively involved in native fish build the fish barrier. For those portions BIOME, a consulting firm, who management. The purposes of the of Eagle Creek upstream of the barrier, provided assistance in completing Native Fishes Program are: (1) to this conservation measure would be surveys on Eagle Creek. During the 2007 undertake conservation actions effective in addressing PCE #5, critical habitat designation process, (recovery and protection) for Federal regarding no nonnative aquatic species, FMC developed management plans for and state-listed or candidate fish species or levels of nonnative aquatic species Eagle Creek that involved monitoring native to the Gila River Basin by that are sufficiently low as to allow the distribution and abundance of the implementing existing and future persistence of spikedace and loach loach minnow and spikedace in Eagle recovery plans for those fishes; and (2) minnow. Creek passing through the FMC reach; to implement nonnative control The second conservation measure providing the Service with reasonable activities to manage nonnative aquatic involves alternatives to barrier notice of any significant changes to the organisms where they interfere with construction. Should barrier water supply management system native fish conservation activities, or construction exceed $1.5 million in cost outside of historical operating provide funding for research in support to build or be determined to be parameters; making reasonable efforts to of nonnative control actions. Freeport- infeasible, FMC and the Service will attend regularly scheduled fisheries McMoRan may revise work plans to develop other projects that will provide management working group meetings; meet comments received from the conservation benefits to spikedace and and continuing historical land use Native Fishes Program, or may respond loach minnow in Eagle Creek and its practices and water supply practices to their recommendations and submit a tributaries. Alternative conservation that enhance water flows in the FMC final work plan to the Native Fishes measures, such as crayfish removal, and reach; and consideration of loach Program. If necessary, FMC will meet chemical treatment of the stream, or minnow and spikedace habitat when with the Native Fishes Program to others that will contribute to the deviating from such historic present revised work plans at that time. recovery of the two species, be management practices. In implementing As part of their management plan, technically sound and be implemented these management plans, FMC provided FMC would submit a Safe Harbor in a reasonable timeframe, and will not annual reports to the Service regarding Agreement and application for a permit be redundant in scope with other changes in management, or anticipated pursuant to 50 CFR 17.22(c) which may projects will be considered. All changes in management for the coming also include a request for a permit under alternative measures will be submitted

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for review to the Native Fishes Program, fish and inform adaptive management nexus for purposes of section 7 as described above. Freeport-McMoRan decisions. consultation. will fund alternative projects not to As mentioned earlier, in conjunction All lands considered for exclusion are exceed $1.5 million. with the submission of the preliminary currently considered occupied by The third conservation measure is an studies of possible fish barrier sites on spikedace and loach minnow and will exotic species removal study. Freeport- Eagle Creek and the San Francisco be subject to the consultation McMoRan will develop and implement River, FMC will submit a Safe Harbor requirements of the Act in the future. a 3-year monitoring program to detect Agreement and application for a permit Although a jeopardy and adverse the presence of other types of invasive pursuant to 50 CFR 17.22(c). modification analysis must satisfy two aquatic species (e.g., bullfrogs and different standards, because any Benefits of Inclusion—Freeport- crayfish) within the upper reach of modifications to proposed actions McMoRan at Eagle Creek Eagle Creek, and will investigate the resulting from a section 7 consultation practicability and cost of removal The principal benefit of including an to minimize or avoid impacts to actions to suppress the populations of area in a critical habitat designation is spikedace and loach minnow would be these species in the upper reach of Eagle the requirement for Federal agencies to habitat-based, it is difficult to Creek. The results of the study would be ensure actions they fund, authorize, or differentiate measures implemented used to inform future management carry out are not likely to result in the solely to minimize impacts to the actions to remove nonnative species destruction or adverse modification of critical habitat from those implemented within Eagle Creek. This conservation any designated critical habitat, the to minimize impacts to the species. measure would inform management regulatory standard of section 7(a)(2) of Therefore, in the case of spikedace and agencies on how to better achieve PCE the Act under which consultation is loach minnow, we believe the 5 regarding no nonnative aquatic completed. Federal agencies must also incremental benefits of critical habitat species, or levels of nonnative aquatic consult with us on actions that may designation are minimal as compared to species that are sufficiently low as to affect a listed species and refrain from the conservation and regulatory benefits allow persistence of spikedace and undertaking actions that are likely to derived from the species being listed. The Service has completed one loach minnow. jeopardize the continued existence of consultation on a water diversion such species. The analysis of effects of The fourth conservation measure is structure modification on FMC mining a proposed project on critical habitat is ecological monitoring for spikedace, operations in the past. Generally, the separate and different from that of the loach minnow, and other warm water mining operations have not resulted in effects of a proposed project on the fish species. The Recovery Plans for consultation, as the Morenci Mine (as both the spikedace and the loach species itself. The jeopardy analysis well as the Tyrone Mine) are not located minnow emphasize the need to evaluates the action’s impact to survival adjacent to the stream channel. As noted consistently monitor the status of and recovery of the species, while the in the water quality section above, spills existing populations, including the destruction or adverse modification associated with mines have occurred in establishment of standard monitoring analysis evaluates the action’s effects to spikedace and loach minnow habitat in locations and techniques, as well as the designated habitat’s contribution to the past. However, even absent a section investigate and quantify through field conservation. Therefore, the difference 7 connection, other safeguards are in research the habitat needs of the species in outcomes of these two analyses place, including water quality and effects of physical habitat represents the regulatory benefit of parameters and monitoring by the modification (Service 1991a, pp.12–27; critical habitat. This will, in many Arizona Department of Environmental Service 1991b, pp. 11–27). Freeport- instances, lead to different results and Quality and the EPA. The Service also McMoRan will use the existing different regulatory requirements. Thus, has an Environmental Contaminants permanent sample locations that have critical habitat designations may Program and staff involved in been used in previous survey efforts, provide greater benefits to the recovery identification of environmental and will undertake a more robust of a species than would listing alone. contaminant problems affecting monitoring program on both Eagle Creek However, for some species, and in threatened and endangered species and and the lower reach of the San some locations, the outcome of these other resources. Through this program, Francisco River, from its confluence analyses will be similar, because effects the Service identifies contaminant with the Gila River upstream to its to habitat will often also result in effects problems and pursues appropriate confluence with the Blue River. to the species. Lands being evaluated for actions to eliminate contaminant threats Monitoring will be conducted annually, exclusion in this unit are occupied by and restore affected resources. with reports on information gathered both species and are subject to Public education is often cited as provided to the Service and the Native consultation requirements of the Act. another possible benefit of including Fishes Program. As part of this Approximately 20.5 km (12.7 mi) of lands in critical habitat as it may help management plan, FMC will study and Eagle Creek are on Federal lands, and focus conservation efforts on areas of analyze the ecology of the loach projects with a Federal nexus through high value for certain species. Eagle minnow, spikedace, other native fish, permitting or funding on non-Federally Creek occurs in an isolated area; and their habitat in Eagle Creek, owned areas along Eagle Creek may also however, there are ranchers in the area, including the relationship between require section 7 consultation. As and the area is used for sportfishing by native fish preferences for selected proposed, the designation included 75.5 the general public. Designation of habitats and various associated km (46.9 mi) of contiguous habitat. critical habitat could inform those who environmental factors (e.g., substrates, However, it should be noted that those either live locally or use the area for channel characteristics, vegetation, and portions on the San Carlos Apache recreation about listed species and their channel morphology). A key component Indian Reservation have been excluded habitat needs. Freeport-McMoRan has of this effort will be the regular under a separate management plan, as indicated that this area is heavily used monitoring of PCEs within targeted noted above, and that not all of the by employees of the Morenci Mine, and stream segments that can affect the remaining 75.5 km (46.9 mi) occur on it is possible that a public outreach suitability of these streams for native Federal lands or would have a Federal campaign could be used to educate

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those who fish in the area about native 2007 management plan, and the connection with resource management fish species. Partnership efforts with continued occupancy of Eagle Creek by activities based on adaptive FMC to conserve spikedace and loach spikedace and loach minnow. management principles, including, if minnow have resulted in awareness Additional evidence of the partnership necessary, the development of about the species that occur within the between FMC and the Service is shown alternative conservations measures, at a Eagle Creek. However, we believe there by FMC’s past commitment in 2005 to total cost of up to $1,500,000 to protect is little, if any, educational benefit develop and implement a management habitat for spikedace and loach minnow attributable to critical habitat beyond plan for southwestern willow flycatcher on Eagle Creek. Most importantly, the those achieved from listing the species and their current commitment to pursue management plans indicate a continuing under the Act, and FMC’s continued a safe harbor agreement for all native commitment to ongoing management work in conserving these species. fish in Eagle Creek. In addition, the that has resulted in habitat that supports The designation of critical habitat for identified coordination procedures and spikedace and loach minnow. spikedace and loach minnow within funding indicate a commitment on the Exclusion of these lands from critical Eagle Creek may strengthen or reinforce part of FMC to on-the-ground spikedace habitat will help preserve and some Federal laws, such as NEPA or the and loach minnow conservation. And, strengthen the conservation partnership Clean Water Act. These laws analyze the FMC has also identified monitoring and we have developed with FMC, reinforce potential for projects to significantly exotic species removal studies. those we are building with other affect the environment. Critical habitat Information gained by both studies entities, and foster future partnerships may signal the presence of sensitive would be useful in guiding future and development of management plans; habitat that could otherwise be missed management of the species and in whereas inclusion will negatively in the review process for these other managing Eagle Creek. In summary, impact our relationships with FMC and environmental laws; however, the exclusion of this area from the other existing or future partners. We are listing of these species, prior designation would maintain, and committed to working with FMC to designations of critical habitat and strengthen the partnership between the further the conservation of spikedace consultations that have already occurred Service and FMC. The exclusion of and loach minnow and other will provide this benefit. Therefore, in these lands may enhance opportunities endangered and threatened species. this case we view the regulatory benefit to partner with other entities not yet Freeport-McMoRan will continue to to be largely as redundant with the identified. implement their management plans and benefit the species will receive from play an active role to protect spikedace listing under the Act and may only Weighing Benefits of Exclusion Against and loach minnow and their habitat. result in minimal additional benefits. Benefits of Inclusion—Freeport- Therefore, in consideration of the In summary, we do not believe that McMoRan at Eagle Creek relevant impact to our partnership with designating critical habitat within lands We reviewed and evaluated the FMC, and the ongoing conservation owned and managed by FMC along benefits of inclusion and the benefits of management practices of FMC, we Eagle Creek will provide significant exclusion of FMC owned lands along determined the significant benefits of additional benefits for spikedace and Eagle Creek as critical habitat for exclusion outweigh the benefits of loach minnow. Projects on these lands spikedace and loach minnow. We inclusion in the critical habitat with a Federal nexus will require believe past, present, and future designation. section 7 consultation with the Service coordination with FMC has provided In summary, we find that excluding (regardless of critical habitat and will continue to provide sufficient FMC owned lands along Eagle Creek designation) because the habitat is education regarding spikedace and from this final critical habitat will occupied and we believe the loach minnow habitat conservation preserve our partnership and may foster incremental benefit from critical habitat needs on these lands, such that there future habitat management and species would be minimal. Furthermore, FMC would be minimal additional conservation plans with FMC and with continues to show a commitment to educational benefit from designation of other entities now and in the future. conservation of these species. critical habitat. Further, because any These partnership benefits are potential impacts to spikedace and significant and outweigh the minimal Benefits of Exclusion—Freeport- loach minnow habitat from future additional regulatory and educational McMoRan at Eagle Creek projects with a Federal nexus will be benefits of including these lands in final The significant benefit of exclusion of addressed through a section 7 critical habitat for spikedace and loach FMC owned lands which are subject to consultation with the Service under the minnow. the management plan for the Eagle jeopardy standard, we believe that the Creek is the maintenance and incremental conservation and regulatory Exclusion Will Not Result in Extinction strengthening of the ongoing benefit of designated critical habitat on of the Species—Eagle Creek partnership with the Service. Freeport- Freeport-McMoRan owned lands would We have determined that the McMoRan has demonstrated a largely be redundant with the combined exclusion of 21.4 km (13.3 mi) of FMC partnership with the Service beginning benefits of listing and existing owned lands along Eagle Creek from the with the management plan submitted to management. Therefore, the incremental designation of critical habitat for the Service in 2005 for the southwestern conservation and regulatory benefits of spikedace and loach minnow will not willow flycatcher, the 2007 management designating critical habitat on FMC result in the extinction of either species. plans for spikedace and loach minnow, owned lands along Eagle Creek are The jeopardy standard of section 7 of and they have indicated a willingness to minimal. the Act and routine implementation of continue as a partner to the Service in On the other hand, the benefits of conservation measures through the the conservation of spikedace and loach excluding FMC owned lands along section 7 process due to spikedace and minnow on Eagle Creek. Evidence of Eagle Creek from critical habitat are loach minnow occupancy provide this partnership can be shown through significant. Freeport-McMoRan’s assurances that this species will not go the assistance with past monitoring management plan establishes a extinct as a result of excluding these efforts for spikedace and loach minnow framework for cooperation and lands from the critical habitat on Eagle Creek, carried out under their coordination with the Service in designation. Therefore, based on the

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above discussion, the Secretary is the Native Fish Program determines that destruction or adverse modification of exercising his discretion to exclude it is not advisable to construct a fish any designated critical habitat, the approximately of 21.4 km (13.3 mi) of barrier, FMC commits in the regulatory standard of section 7(a)(2) of FMC owned lands along Eagle Creek management plan to conferring in good the Act under which consultation is from the designation of critical habitat faith with the Service to identify other completed. Federal agencies must also for spikedace and loach minnow. projects that will provide conservation consult with us on actions that may San Francisco River. The San benefits to spikedace and loach affect a listed species and refrain from Francisco River was not occupied by minnows in the San Francisco River and undertaking actions that are likely to spikedace at listing, and is classified as its tributaries. Any identified jeopardize the continued existence of a 2b stream for spikedace, indicating it conservation measures would contribute such species. The analysis of effects of would serve as an expansion of the to the recovery of the two species, a proposed project on critical habitat is species’ range. Spikedace were would be technically sound and able to separate and different from that of the reintroduced into the San Francisco be implemented in a reasonable effects of a proposed project on the River in 2007; however, insufficient timeframe, and would not be redundant species itself. The jeopardy analysis time has elapsed to determine if the in scope. Any alternative proposals evaluates the action’s impact to survival reintroduction program will be a developed would be reviewed through and recovery of the species, while the success. The San Francisco River was the coordination process described destruction or adverse modification occupied at listing by loach minnow above, and FMC commits to paying analysis evaluates the action’s effects to and is currently occupied, and is $2,500,000 for the development, review, the designated habitat’s contribution to therefore classified as a 1a stream under and implementation of conservation conservation. Therefore, the difference this designation. measures, including any expenditures to in outcomes of these two analyses Freeport-McMoRan notes that they are investigate the feasibility of a fish represents the regulatory benefit of the primary private property owner barrier. critical habitat. This will, in many along the lower reach of the San In addition, FMC commits in the instances, lead to different results and Francisco River in Arizona. Under the management plan to implementing a different regulatory requirements. Thus, Eagle Creek and San Francisco River detailed monitoring program along the critical habitat designations may Management Plan, FMC proposes to lower reach of the San Francisco River provide greater benefits to the recovery spend $2,500,000 on the San Francisco to assist in the conservation of of a species than would listing alone. River. The coordination process with spikedace and loach minnow. As noted However, for some species, and in some the Native Fishes Program, as detailed above, the Recovery Plans for both the locations, the outcome of these analyses above, would apply to conservation spikedace and the loach minnow will be similar, because effects to habitat measures for the San Francisco River as emphasize the need to consistently will often also result in effects to the well. monitor the status of existing species. Lands being evaluated for The management plan describes the populations, including the exclusion in this unit are occupied by lower reach of the San Francisco River establishment of standard monitoring loach minnow (and possibly by as a well-known sport fishery, with locations and techniques, as well as spikedace, if the translocation efforts are channel catfish, carp, and red shiner. investigating and quantifying through successful) and are subject to For the San Francisco River, FMC’s field research the habitat needs of the consultation requirements of the Act. management plan proposes completing species and effects of physical habitat Approximately 13.2 km (8.2 mi) of those a feasibility study to evaluate three modification (Service 1991a, pp. 12–27; portions of the San Francisco River potential barrier sites. Provided that a Service 1991b, pp. 11–27). There is no covered by the management plan are on suitable barrier site is found, FMC will regular monitoring of the portions of the Federal lands, and projects impacting prepare a preliminary work plan San Francisco River in Arizona at this other non-Federally owned areas may following the coordination procedures time. The monitoring program would require section 7 consultation for outlined above, and will submit it to the include a minimum of 15 permanent impacts to critical habitat if they require Service for review and comment, and sample locations. As with Eagle Creek, Federal permitting or use Federal funds. then to the Native Fishes Program by standardized sampling techniques and It is possible that projects impacting September 1, 2014. protocols would be used, and the other non-Federally owned areas may If approved by the Native Fish management plan contains additional require section 7 consultation for Program, and provided the cost does not detail on equipment and procedures. impacts to critical habitat if they require exceed $2,500,000, FMC will construct Freeport-McMoRan commits to Federal permitting or use Federal funds. a barrier on the San Francisco River providing an annual report to the However, we do not anticipate there with the goal of completing construction Service regarding its implementation of being many consultations along FMC’s in 5 years. Freeport-McMoRan will the management plan. The report will lands on the San Francisco River due to report progress on the report semi- provide a description of implementation the lack of a Federal nexus and due to annually until barrier construction is of plan elements over the course of the the lack of a history of consultations. complete. For those portions of the San previous year and discuss anticipated Due to the lack of consultations in these Francisco River upstream of the barrier, implementation for the coming year. areas, we conclude the benefit of this conservation measure would be Each year’s report would be provided to inclusion based on consultation effective in addressing PCE #5, the Service by April of the following requirements under the Act is reduced. regarding no nonnative aquatic species, year. All lands considered for exclusion are or levels of nonnative aquatic species currently considered occupied by loach that are sufficiently low as to allow Benefits of Inclusion—Freeport- minnow and will be subject to the persistence of spikedace and loach McMoRan on the San Francisco River consultation requirements of the Act in minnow. The principal benefit of including an the future. Although a jeopardy and As with Eagle Creek, should barrier area in a critical habitat designation is adverse modification analysis must construction costs be estimated to the requirement for Federal agencies to satisfy two different standards, because exceed $2,500,000, if barrier ensure actions they fund, authorize, or any modifications to proposed actions construction is deemed infeasible, or if carry out are not likely to result in the resulting from a section 7 consultation

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to minimize or avoid impacts to loach would be minimal. However, due to the species. In summary, exclusion of this minnow would be habitat-based, it is lack of a consultation history along the area from the designation would difficult to differentiate measures San Francisco River, the benefits of maintain, and strengthen the implemented solely to minimize inclusion that stem from consultation partnership between the Service and impacts to the critical habitat from those requirements under the Act are reduced. FMC. The exclusion of these lands may implemented to minimize impacts to Furthermore, FMC continues to show a enhance opportunities to partner with the species. Therefore, in the case of commitment to conservation of these other entities not yet identified. spikedace and loach minnow, we species through the development and Weighing Benefits of Exclusion Against believe the incremental benefits of implementation of the management Benefits of Inclusion—Freeport- critical habitat designation are minimal plans which cover the San Francisco McMoRan on the San Francisco River as compared to the conservation and River for spikedace and loach minnow. regulatory benefits derived from the We reviewed and evaluated the Benefits of Exclusion—Freeport- species being listed. benefits of inclusion and the benefits of Public education is often cited as McMoRan on the San Francisco River exclusion of FMC owned lands along another possible benefit of including The significant benefit of exclusion of the San Francisco River as critical lands in critical habitat as it may help FMC owned lands which are subject to habitat for spikedace and loach focus conservation efforts on areas of the management plan for the San minnow. We believe past, present, and high value for certain species. The San Francisco River is the maintenance and future coordination with FMC has Francisco River occurs near the towns of strengthening of the ongoing provided and will continue to provide Clifton and Morenci. The area is partnership with the Service. Freeport- sufficient education regarding spikedace currently heavily used for sportfishing McMoRan has demonstrated a and loach minnow habitat conservation by the general public, and designation partnership with the Service beginning needs on these lands, such that there of critical habitat could inform those with the management plan submitted to would be no additional educational who either live locally or use the area the Service in 2005 for the southwestern benefit from designation of critical for recreation about listed species and willow flycatcher, the 2007 management habitat. Further, because any potential their habitat needs. Partnership efforts plans for spikedace and loach minnow, impacts to spikedace and loach minnow with FMC to conserve spikedace and and they have indicated a willingness to habitat from future projects with a loach minnow have resulted in continue as a partner to the Service in Federal nexus will be addressed through awareness about the species that occur the conservation of spikedace and loach a section 7 consultation with the Service within the San Francisco River. minnow on San Francisco River. under the jeopardy standard, we believe However, we believe there is little, if Evidence of this partnership can be that the incremental conservation and any, educational benefit attributable to shown through the past monitoring regulatory benefit of designated critical critical habitat beyond those achieved efforts for spikedace and loach minnow habitat on FMC owned lands would from listing the species under the Act, on Eagle Creek, carried out under their largely be redundant with the combined and FMC’s continued work in 2007 management plan. Additional benefits of listing and existing conserving these species. evidence of the partnership between management. Therefore, the incremental The designation of critical habitat for FMC and the Service is shown by FMC’s conservation and regulatory benefits of spikedace and loach minnow within the past commitment in 2005 to develop designating critical habitat on FMC San Francisco River may strengthen or and implement a management plan for owned lands along the San Francisco reinforce some Federal laws, such as southwestern willow flycatcher and River are minimal. NEPA or the Clean Water Act. These their current commitment to pursue a On the other hand, the benefits of laws analyze the potential for projects to safe harbor agreement for all native fish excluding FMC owned lands along the significantly affect the environment. in the San Francisco River. In addition, San Francisco River from critical habitat Critical habitat may signal the presence the identified coordination procedures are significant. Freeport-McMoRan’s of sensitive habitat that could otherwise and funding indicate a commitment on management plan establishes a be missed in the review process for the part of FMC to on-the-ground framework for cooperation and these other environmental laws; spikedace and loach minnow coordination with the Service in however, the listing of these species, conservation. Finally, Freeport- connection with resource management prior designations of critical habitat, McMoRan has demonstrated a activities based on adaptive and consultations that have already commitment to the 2007 management management principles, including, if occurred will provide this benefit. plans, and indicated a willingness to necessary, the development of Therefore, in this case we view the continue as a partner to the Service in alternative conservations measures, at a regulatory benefit to be largely the conservation of spikedace and loach total cost of up to $2,500,000 to protect redundant with the benefit the species minnow in the San Francisco River. habitat for spikedace and loach minnow will receive from listing under the Act Excluding the San Francisco River on the San Francisco River. Most and may only result in minimal would promote that partnership. The importantly, the management plans additional benefits. identified coordination procedures and indicate a continuing commitment to In summary, we do not believe that funding indicate a commitment on the ongoing management that has resulted designating critical habitat within lands part of FMC to on-the-ground spikedace in habitat that supports spikedace and owned and managed by FMC along the and loach minnow conservation. And, loach minnow. San Francisco River will provide FMC has also identified increased Exclusion of these lands from critical significant additional benefits for monitoring on the San Francisco River. habitat will help preserve and spikedace and loach minnow. Projects The lower portions of the San Francisco strengthen the conservation partnership on these lands with a Federal nexus will River have been surveyed with less we have developed with FMC, reinforce require section 7 consultation with the frequency and regularity than most those we are building with other Service (regardless of critical habitat spikedace and loach minnow streams. entities, and foster future partnerships designation) because the habitat is The commitment to monitoring in the and development of management plans; occupied and we believe the management plan would assist whereas inclusion will negatively incremental benefit from critical habitat conservation management efforts for the impact our relationships with FMC and

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other existing or future partners. We are Bear Creek. Much of this area is owned (4,672 feet) above sea level. Should Gila committed to working with FMC to by the Pacific Western Land Company River flows be less than 25 cfs, but the further the conservation of spikedace (PWLC), a subsidiary of FMC, and is reservoir levels fall below 1,424 meters and loach minnow and other included in the U-Bar Ranch. Freeport- (4,672 feet), FMC will consult with the endangered and threatened species. McMoRan’s land and water rights in the NMDGF regarding a temporary Freeport-McMoRan will continue to Gila/Cliff Valley support operations at curtailment of water. Freeport- implement their management plans and the Tyrone Mine in addition to its McMoRan concludes that the 25 cfs play an active role to protect spikedace agricultural operations along the Gila trigger will ensure that FMC diversions and loach minnow and their habitat. River. Freeport-McMoRan diverts water do not cause the river to dry up during Therefore, in consideration of the from the Gila River for use at the Tyrone low-flow conditions. Should FMC need relevant impact to our partnership with Mine located southwest of Silver City, to modify its water use and diversion FMC, and the ongoing conservation New Mexico. Their water right includes activities due to unanticipated management practices of FMC, we a diversion structure on the Gila River circumstances, they will confer with determined the significant benefits of above its confluence with Mangas FWS regarding the impacts of such exclusion outweigh the benefits of Creek, which diverts water into a canal. changes for the purpose of developing inclusion in the critical habitat A pump station moves water from the alternative conservation measures. designation. canal to the Bill Evans Reservoir, and Should such measures be needed, FMC In summary, we find that excluding water is pumped from the reservoir commits to spending up to $500,000 for FMC owned lands along the San through a 35.4-km (22-mi) pipeline to these measures. This measure would Francisco River from this final critical the Tyrone Mine. The Bill Evans assist in maintaining perennial flows, as habitat will preserve our partnership Reservoir is managed by the NMDGF as described under PCE 4. and may foster future habitat a recreational facility, and stocked with Freeport-McMoRan has funded management and species conservation sportfish. The Reservoir is separated monitoring on Mangas Creek and the plans with FMC and with other entities from the active stream channel. Gila River in the past, and commits to now and in the future. These Freeport-McMoRan’s management funding surveys on these two streams partnership benefits are significant and plan provides background on steps on a biennial basis, and furnishing the outweigh the minimal additional taken by FMC for environmental results of the surveys to the Service. The regulatory and educational benefits of management in this region in general, as Recovery Plans for both the spikedace including these lands in final critical well as conservation measures for and the loach minnow emphasize the habitat for spikedace and loach spikedace and loach minnow. One such need to consistently monitor the status minnow. measure is FMC’s participation in a of existing populations, including the voluntary water conservation program establishment of standard monitoring Exclusion Will Not Result in Extinction administered by the New Mexico Office locations and techniques, as well as of the Species—San Francisco River of the State Engineer (OSE). Under this investigating and quantifying through We have determined that the program, FMC has enrolled 2,876 acre field research the habitat needs of the exclusion of 14.1 km (8.8 mi) FMC feet of its annual average diversion species and effects of physical habitat owned lands along the San Francisco rights through 2018. The program modification (Service 1991a; Service River from the designation of critical allows FMC to increase or decrease the 1991b). In addition, FMC will develop habitat for spikedace and loach minnow amount of water rights that are and implement a program to detect and will not result in the extinction of either restricted from diversion and remove crayfish from Mangas Creek. species. The jeopardy standard of consumptive use on an annual basis, Removal of this nonnative aquatic section 7 of the Act and routine depending on their current water needs. species would help in improving habitat implementation of conservation As detailed in the plan, this portion conditions for spikedace and loach measures through the section 7 process of the Gila River maintains a healthy minnow by reducing/minimizing the due to loach minnow occupancy (and stream and riparian system, and number of nonnative aquatic species as spikedace if the translocation efforts are supports the largest populations of described in PCE 5. successful) provide assurances that this spikedace and loach minnow in the two Freeport-McMoRan commits to species will not go extinct as a result of species’ ranges. The river in this area is making a reasonable effort to coordinate excluding these lands from the critical perennial, and has very low levels of with other landowners in the Gila/Cliff habitat designation. Therefore, based on nonnative fishes. Under the plan, FMC Valley regarding conservation-related the above discussion, the Secretary is will continue participation in the water issues and activities. They will ask that exercising his discretion to exclude conservation program noted above, and neighboring landowners assist in FMC’s approximately 14.1 km (8.8 mi) of FMC commits to re-enrolling to continue conservation efforts, and will provide owned lands along the San Francisco their participation in the water assistance to neighboring landowners River from the designation of critical conservation program should their who wish to implement conservation habitat for spikedace and loach enrollment lapse during the life of the measures. Freeport-McMoRan will also minnow. management plan. confer with the Service regarding The management plan would also activities that might be undertaken to Spikedace and Loach Minnow maintain minimum flow levels in the increase public awareness of the habitat Management Plan—Upper Gila River, Gila River during periods of drought. needs of spikedace and loach minnow. Including Bear Creek and Mangas Specifically, FMC will not divert water The management plan contains Creek, Grant County, New Mexico from the Gila River at the Bill Evans provisions for reporting requirements, Freeport-McMoRan provided this Reservoir diversion structure into the as well as for adaptive management. For management plan during the second reservoir if both of the following reporting requirements, FMC notes that comment period. Freeport-McMoRan conditions exist: (1) The Gila River is they will provide an annual report to currently owns more than 11.5 km (7.2 flowing at less than 25 cfs at the USGS the Service discussing implementation mi) along the Gila River, approximately Gage 09431500 near Redrock, New of the management plan, which will 7.9 km (4.9 mi) along Mangas Creek, and Mexico; and (2) the water level in Bill include information affirming plan approximately 1.9 km (1.2 mi) along Evans Reservoir is at 1,424 meters implementation; note any changes from

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historic operating parameters; and the amount of $500,000 to this task. The All lands considered for exclusion are discuss anticipated implementation of management plan details reporting currently considered occupied by either the plan for upcoming years. Reports requirements and effective dates for the spikedace or loach minnow and will be will be submitted each year by April 1 initiation of the plan. subject to the consultation requirements for the previous year. of the Act in the future. Although a With respect to adaptive management, Benefits of Inclusion—Freeport- jeopardy and adverse modification FMC anticipates that operational McMoRan on the Gila River, Mangas analysis must satisfy two different requirements may require modification Creek, and Bear Creek standards, because any modifications to of its land and water use in the Gila/ The principal benefit of including an proposed actions resulting from a Cliff Valley, or that future surveys and area in a critical habitat designation is section 7 consultation to minimize or monitoring activities could detect the requirement for Federal agencies to avoid impacts to spikedace and loach significant changes in the native and ensure actions they fund, authorize, or minnow would be habitat-based, it is nonnative fish populations or key carry out are not likely to result in the not possible to differentiate any habitat parameters, indicating that an destruction or adverse modification of measures implemented solely to alternative conservation measure is any designated critical habitat, the minimize impacts to the critical habitat needed to protect spikedace and low regulatory standard of section 7(a)(2) of from those implemented to minimize minnow. They commit to conferring in the Act under which consultation is impacts to the species. Therefore, in the good faith in the development of completed. Federal agencies must also case of spikedace and loach minnow, alternative conservation measures and, consult with us on actions that may we believe the incremental benefits of as noted above, will spend up to affect a listed species and refrain from critical habitat designation are minimal $500,000 on these measures. undertaking actions that are likely to as compared to the conservation and For Bear Creek, FMC indicates that jeopardize the continued existence of regulatory benefits derived from the they will continue to discourage such species. The analysis of effects of species being listed. trespass on their lands in the lower a proposed project on critical habitat is Public education is often cited as portions of Bear Creek, which can aid in separate and different from that of the another possible benefit of including maintaining or improving water quality effects of a proposed project on the lands in critical habitat as it may help by minimizing sedimentation. In species itself. The jeopardy analysis focus conservation efforts on areas of addition, the management plan states evaluates the action’s impact to survival high value for certain species. that FMC will continue its existing land and recovery of the species, while the Partnership efforts with FMC to uses and management practices in the destruction or adverse modification conserve spikedace and loach minnow Gila/Cliff Valley. The lower portions of analysis evaluates the action’s effects to have resulted in awareness about the Bear Creek included in the management the designated habitat’s contribution to species that occur within the Gila River, plan are part of the U-Bar Ranch and conservation. Therefore, the difference Mangas Creek, and Bear Creek. managed by an FMC subsidiary. However, we believe there is little, if in outcomes of these two analyses Freeport-McMoRan notes that they will any, educational benefit attributable to represents the regulatory benefit of continue their existing land uses and critical habitat beyond those achieved critical habitat. This will, in many management practices on this property, from listing the species under the Act instances, lead to different results and unless unanticipated circumstances and FMC’s continued work in different regulatory requirements. Thus, arise that necessitate changes. In such conserving these species. an event, FMC would provide the critical habitat designations may The designation of critical habitat for Service with notice of any significant provide greater benefits to the recovery spikedace and loach minnow within the changes in land use and management of a species than would listing alone. Gila River, Mangas Creek, and Bear practices that are outside the range of However, for some species, and in Creek may strengthen or reinforce some the historic operating parameters they some locations, the outcome of these Federal laws, such as NEPA or the Clean provide in the management plan, and analyses will be similar, because effects Water Act. These laws analyze the discuss potential impacts to loach to habitat will often also result in effects potential for projects to significantly minnow. to the species. Lands being evaluated for affect the environment. Critical habitat We conclude that the management exclusion in this unit are occupied by may signal the presence of sensitive plans provide benefits to spikedace and both species and are subject to habitat that could otherwise be missed loach minnow that are equivalent to consultation requirements of the Act. in the review process for these other those that would be provided by critical Within the stream reach managed by environmental laws; however, the habitat designation. Under FMC’s past FMC, only approximately 0.25 mile is listing of these species, prior and current management, portions of managed by BLM, while the remainder designations of critical habitat and the Gila River and Mangas Creek of this reach is private or State owned. consultations that have already occurred continue to support the largest numbers It is possible that projects impacting will provide this benefit. Therefore, in of spikedace and loach minnow in their other non-Federally owned areas may this case we view the regulatory benefit range. Nonnative species currently require section 7 consultation for to be largely as redundant with the appear to be at levels that have a impacts to critical habitat if they require benefit the species will receive from minimal impact on native species in the Federal permitting or use Federal funds. listing under the Act and may only Gila River, and are currently However, we do not anticipate there result in minimal additional benefits. nonexistent in Mangas Creek, meeting being many consultations along the Gila In summary, we do not believe that PCE 5 for these streams. Freeport- River, Mangas Creek, and Bear Creek designating critical habitat within lands McMoRan has made a commitment to due to the lack of a Federal nexus and owned and managed by FMC along the maintaining perennial flows in the Gila due to the lack of a history of Gila River, Mangas Creek, and Bear River downstream of their diversion. consultations. Due to the lack of Creek will provide significant additional Should the situation change, FMC has consultations in these areas, we benefits for spikedace and loach committed to meeting with the Service conclude the benefit of inclusion based minnow. Projects on these lands with a to develop additional conservation on consultation requirements under the Federal nexus will require section 7 measures, and has dedicated funding in Act is reduced. consultation with the Service

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(regardless of critical habitat to partner with other entities not yet and loach minnow and their habitat. designation) because the habitat is identified. Therefore, in consideration of the occupied and we believe the relevant impact to our partnership with Weighing Benefits of Exclusion Against incremental benefit from critical habitat FMC, and the ongoing conservation Benefits of Inclusion—Freeport- management practices of FMC, we would be minimal. However, due to the McMoRan on the Gila River, Mangas determined that the significant benefits lack of a consultation history along the Creek, and Bear Creek Gila River, Mangas Creek, and Bear of exclusion outweigh the benefits of Creek, the benefits of inclusion that We reviewed and evaluated the inclusion in the critical habitat stem from consultation requirements benefits of inclusion and the benefits of designation. under the Act are reduced. Furthermore, exclusion of FMC-owned lands along In summary, we find that excluding FMC continues to show a commitment the Gila River, Mangas Creek, and Bear FMC-owned lands along the Gila River, to conservation of these species through Creek as critical habitat for spikedace Mangas Creek, and Bear Creek from this the development and implementation of and loach minnow. We believe past, final critical habitat will preserve our the management plans which cover the present, and future coordination with partnership and may foster future Gila River, Mangas Creek, and Bear FMC has provided and will continue to habitat management and species Creek for spikedace and loach minnow. provide sufficient education regarding conservation plans with FMC and with spikedace and loach minnow habitat other entities now and in the future. Benefits of Exclusion—Freeport- conservation needs on these lands, such These partnership benefits are McMoRan on the Gila River, Mangas that there would be minimal additional significant and outweigh the minimal Creek, and Bear Creek educational benefit from designation of additional regulatory and educational The significant benefits of exclusion critical habitat. Further, because any benefits of including these lands in final of FMC owned lands that are subject to potential impacts to spikedace and critical habitat for spikedace and loach the management plan for the Gila River, loach minnow habitat from future minnow. projects with a Federal nexus will be Mangas Creek, and Bear Creek is the addressed through a section 7 Exclusion Will Not Result in Extinction maintenance and strengthening of the consultation with the Service under the of the Species—Gila River, Bear and ongoing partnership with the Service. jeopardy standard, we believe that the Mangas Creek Freeport-McMoRan has demonstrated a incremental conservation and regulatory We have determined that the partnership with the Service beginning benefit of designated critical habitat on exclusion of 20.3 km (13.3 mi) FMC with the management plan submitted to FMC-owned lands would largely be owned lands along the Gila River, the Service in 2005 for the southwestern redundant with the combined benefits Mangas Creek, and Bear Creek from the willow flycatcher, and the 2007 of listing and existing management. designation of critical habitat for management plans for spikedace and Therefore, the incremental conservation spikedace and loach minnow will not loach minnow, and they have indicated and regulatory benefits of designating result in the extinction of either species. a willingness to continue as a partner to critical habitat on FMC owned lands The jeopardy standard of section 7 of the Service in the conservation of along the San Francisco River are the Act and routine implementation of spikedace and loach minnow on the minimal. conservation measures through the Gila River, Mangas Creek, and Bear On the other hand, the benefits of section 7 process due to spikedace and Creek. Freeport-McMoRan has excluding FMC-owned lands along the loach minnow occupancy provide demonstrated a commitment to this Gila River, Mangas Creek, and Bear assurances that this species will not go partnership through conservation in this Creek from critical habitat are extinct as a result of excluding these area by voluntarily enrolling in a water significant. Freeport-McMoRan’s lands from the critical habitat conservation program with the OSE for management plan establishes a designation. Therefore, based on the which they have dedicated 2,876 af of framework for cooperation and above discussion, the Secretary is water that may be used for coordination with the Service in exercising his discretion to exclude nonconsumptive purposes. connection with resource management approximately 20.3 km (13.3 mi) of Evidence of this partnership can be activities based on adaptive FMC-owned lands along the Gila River, shown through the management of those management principles. Most Mangas Creek, and Bear Creek from the portions of the Gila River, Mangas importantly, the management plans designation of critical habitat for Creek, and Bear Creek on FMC lands, indicate a continuing commitment to spikedace and loach minnow. which has resulted in expansion of ongoing management that has resulted riparian areas that provide suitable in habitat that supports spikedace and Summary of Comments and Responses habitat for spikedace and loach loach minnow. Exclusion of these lands We requested written comments from minnow. Additional evidence of the from critical habitat will help preserve the public on the proposed designations partnership between FMC and the and strengthen the conservation of critical habitat for the spikedace and Service is shown by FMC’s commitment partnership we have developed with the loach minnow during two comment to provide for adaptive management, FMC, reinforce those we are building periods. The first comment period was such that should FMC need to modify with other entities, and foster future associated with the publication of the its water use and diversion activities partnerships and development of proposed rule opened on October 28, due to unanticipated circumstances, management plans whereas inclusion 2010 (75 FR 66482) and closed on they will confer with the Service will negatively impact our relationships December 27, 2010. The second notice regarding the impacts of such changes with FMC and other existing or future reopening the comment period opened and will adopt alternative conservation partners. We are committed to working on October 4, 2011, (76 FR 61330) and measures not to exceed $500,000 in with FMC to further the conservation of closed on November 3, 2011. We held cost. Exclusion of this area from the spikedace and loach minnow and other a public hearing on October 17, 2011. designation would maintain, and endangered and threatened species. We also contacted appropriate Federal, strengthen the partnership between the Freeport-McMoRan will continue to State, and local agencies; scientific Service and FMC. The exclusion of implement their management plans and organizations; peer reviewers, and other these lands may enhance opportunities play an active role to protect spikedace interested parties and invited them to

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comment on the proposed rule and draft following summary and incorporated single historical collection locality economic and environmental analyses into the final rule as appropriate. seems imprudent without more during these comment periods. thoughtful deliberation. Peer Reviewer Comments During the first comment period we Our Response: Please see page 66518, received 36 comment letters directly (1) Comment: The reviewer stated that column 1 of the proposed rule. The addressing the proposed critical habitat the term ‘‘reasonably occupied’’ in the Agua Fria was not included in the designations. During the second proposed rule is not clear; suggest using designation for spikedace for several comment period we received 25 the term ‘‘occupied by the species at the reasons as stated there, including its comment letters addressing the time of listing.’’ location on the western edge of the proposed critical habitat designations or Our Response: In the October 4, 2011, species’ range, and its relatively short the draft economic and environmental NOA (76 FR 61330), we stated that, in stretches of perennial flows that enter order to improve clarity, we were analyses. No individuals or the Lake Pleasant reservoir. Even with revising the definition of occupied to organizations made comments on the those conditions, we may have include those areas identified as proposed designations of critical habitat designated the Agua Fria had it served occupied for each species in the original or the analyses for the spikedace and as an extension to any other spikedace listing documents, as well as any loach minnow during the October 17, area; however, it does not connect to additional areas determined to be 2011, public hearing, All substantive any other occupied area. We do note occupied after 1986. Our reasoning for information provided during comment elsewhere in the proposed rule (see page including these additional, post-1986 periods has either been incorporated 66496, column 2) and the NOA (see areas is that it is likely that those areas directly into this final determination or page 61330) that we recognize that we were occupied at the time of the original addressed below. Comments received have not necessarily included all areas listings, but had not been detected in were grouped into four general issues that may be needed for recovery, and surveys due to minimal or no survey specifically relating to reclassification that other areas may be considered efforts in some areas; low capture for spikedace and loach minnow and important for the species conservation efficiencies associated with seining, and the proposed critical habitat by species managers or the Spikedace their small size. This language from the designations and are addressed in the and Loach Minnow Recovery Team in NOA has been incorporated into the following summary. the future. Page 66493, column 3 of the final rule. proposed rule further notes that critical Peer Review (2) Comment: The water temperature habitat designations made on the basis discussion should address the effects of of the best available information at the In accordance with our peer review shading on water temperature, time of designations will not control the policy published on July 1, 1994 (59 FR including how water temperature would direction and substance of future 34270), we solicited expert opinions be affected by reductions in streambank recovery plans. from 13 knowledgeable individuals vegetation. Belsky et al. 1999, Larson (5) Comment: It would seem that outside the Service with scientific and Larson 1996, LeBlank et al. 1997, future designations of critical habitat expertise to review our technical and Rutherford et al. 2004 were should first be drafted by recovery assumptions, interpretations of biology, provided as potential sources of teams to ensure that the entire process and use of ecological principles with information for this discussion. of recovery planning is respect to the spikedace and loach Our Response: We reviewed and comprehensively integrated and will minnow, and our analysis of the added literature to address the possible produce the best possible chance of primary constituent elements (PCEs) increase in water temperatures as a overall success. and areas essential to the conservation result of the loss of vegetation by Our Response: We agree. In the 1994 of these species. We also asked for wildfire and recreation. Specifically, we designation of critical habitat, the review on our adherence to regulations added information indicating that recovery plans from 1991 were in place related to species reclassification and indirect effects of wildfire, such as to guide the designation. We used a the critical habitat designations, and on increases in stream temperatures, can revised and updated recovery outline to whether or not we had used the best last for several years to more than a guide the current designation. There is available information. We received decade after the fire. no requirement in the Act that recovery responses from 6 of the 13 peer (3) Comment: The term ‘‘essential plans need to be in place before critical reviewers. feature’’ is used in the document, but is habitat is designated, but we agree that We reviewed all comments received not defined. The peer reviewer noted recovery plans can be useful for critical from the peer reviewers for substantive that they would assume this means habitat designations. issues and new information regarding physical and biological features (6) Comment: The proposed rule threats to critical habitat for the ‘‘essential to the conservation of the states (page 66504, column 3) that all spikedace and loach minnow. The peer species.’’ areas proposed for designation contain reviewers generally concurred with our Our Response: We have changed the the physical and biological features methods and conclusions and provided language at the first use of essential (PBFs) for spikedace and loach minnow. additional information, clarifications, feature to read ‘‘essential feature to the However, on prior pages one PBF is and suggestions to improve the final conservation of the species.’’ defined as ‘‘habitat devoid of nonnative critical habitat and reclassification rule. (4) Comment: Although the criteria for aquatic species, or habitat in which One peer reviewer noted that the designating critical habitat are well nonnative aquatic species are at levels literature cited contained a thorough described in the proposed rule, they that allow persistence of spikedace and listing of relevant reports and other seem overly focused on historical and loach minnow.’’ This is probably not literature relating to species status present occupancy standards and do not true for most of the designation reaches, reclassification and critical habitat always take into account how the and actions such as barrier construction, designation, which represents the best species could best be recovered. For chemical renovations upstream, and available scientific information to the example, failing to consider designation species augmentation or repatriations to best of the reviewer’s knowledge. Peer of critical habitat within the Agua Fria achieve this PCE will be exceedingly reviewer comments are addressed in the drainage simply due to rejection of its difficult to implement. The document

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falls short in its discussion of the streams are tributary to an occupied which discusses disruptions to natural intricacies associated with this PCE and stream, they do not meet criterion for channel dynamics. In the final rule, we the critical importance it has toward category 2a of the ruleset. Because other have also added a section on the recovery of both species. streams are designated for loach relationship between altered flow Our Response: Both the proposed and minnow within this Subbasin (North regimes and nonnative predators which final rules provide a lengthy discussion Fork East Fork Black River, Coyote also highlights the importance of stream of the impacts on spikedace and loach Creek, Boneyard Creek, and East Fork flow. minnow from nonnative fishes. In Black River), these areas would not (12) Comment: There is no mention of addition, the descriptions of the streams significantly expand the distribution of yellow grubs or black spot parasites throughout the document note the loach minnow within its historical under the disease discussion, and they presence of nonnatives. In the final rule, range (category 2b). are fairly prevalent in the San Francisco we have added a section discussing the (9) Comment: With respect to River. interaction between altered flow reclassification, there seems to be little Our Response: In response to this regimes and nonnatives. We recognize evidence presented to justify that the comment, we have added information that nonnative aquatic species are a situation for either species is different regarding both yellow grub and black persistent threat throughout much, if (i.e., worse) now than at the time of grub parasites to the discussion under not all, of the two species’ ranges. Two listing. More recent reports may not Factor C. facts about the PBFs are important to show population decrease. Many (13) Comment: Loose substrate should note. First, as written, the PCE on surveys showed a boom for both species be included as a PBF for the two nonnatives is ‘‘No nonnative aquatic following the winter 2007–2008 species. species, or levels of nonnative aquatic flooding. Our Response: We discuss substrate species that are sufficiently low as to Our Response: As noted under the within PCE 1 for both species, which allow persistence’’ of spikedace or loach Reclassification Determination section includes ‘‘Appropriate stream minnow. It is not required that of this rule, the decision to reclassify the microhabitat types include glides, runs, nonnative aquatic species be absent. two species began in 1991 with a 5-year riffles, the margins of pools and eddies, Second, we look for one or more PBFs review during which we determined and backwater components over loose within a given unit in order to include that the species’ status was precarious sand, gravel, and cobble substrates with it within the designations. In other and that a change in status from low or moderate amounts of fine words, a stream segment does not need threatened to endangered was sediment and substrate embeddedness.’’ to have all the PCEs in order to be warranted. While some recovery actions (14) Comment: There are no records of designated as critical habitat. have occurred in the intervening years, spikedace for those portions of the Blue (7) Comment: The potential for and while we occasionally see an River in New Mexico, and it may not be establishment of spikedace and loach increase in numbers in a given area in good habitat for that species. minnow in Fossil Creek is much higher response to flooding, the majority of Our Response: We do not have any above the barrier than below, in the area areas occupied by spikedace and loach records of spikedace for those portions proposed as critical habitat. minnow have seen an increase in of the Blue River in New Mexico. Our Response: Following review of nonnative species, with nonnatives Within the proposed rule, we classified comments received during the two dominating some streams. The low this stream as a 2b stream for spikedace, comment periods, as well as new numbers of spikedace and loach indicating that it would serve to expand information received on the presence of minnow, their isolation in tributary the geographic distribution of the spikedace, we have amended the area waters, drought, ongoing water species. The Blue River system provides included within the designations to demands, and other threats indicate that the PCEs for suitable habitat for include that portion of Fossil Creek the species are now in danger of spikedace, and we note that loach from its confluence with the Verde extinction throughout their ranges. minnow, which often co-occur with River, past and upstream of the barrier While streams that were occupied at spikedace, are found throughout the up to the old Fossil Diversion Dam. listing may continue to be occupied, the system, including those portions in both Please see the discussion under the overall length of the occupied segment Arizona and New Mexico. section on ‘‘Summary of Changes from has shrunk in some areas (e.g., Verde (15) Comment: Spikedace in the Proposed Rule’’ above for more detail. River, East Fork Gila River), or the two Verde River are very distinct from those (8) Comment: For Spring and Rock species occur in extremely limited in the Gila River. Hendrickson’s creeks in the Tonto River basin there numbers (e.g., Eagle Creek). In other morphology paper emphasizes the was not enough justification provided to areas, the species are considered significance of thoroughly sampling the explain why spikedace was included extirpated (e.g., San Pedro River). Verde to see if spikedace can be found. but loach minnow was not. The chances (10) Comment: There are Our Response: Please see the of reestablishing both species are equal. inconsistencies between the occupancy discussion under the Summary of It is not possible to accurately predict table (Tables 3 and 4) in the proposed Factors Affecting the Species. We the outcome of the Rock and Spring rule and the tables in the draft include information regarding genetic Creeks translocation effort, and an a Environmental Assessment (Tables 5 and morphological differences, and priori exclusion seems illogical and ill- and 6). cited Anderson and Hendrickson (1994) advised. Our Response: We agree and the under Factor A in the proposed rule, Our Response: Please refer to the tables have been modified for the final and have added Anderson and ruleset described in both the proposed rule and final environmental Hendrickson (1994) as a cite under rule and this final rule. Because there assessment. Factor E in the final rule. are no loach minnow known from Tonto (11) Comment: Section A Threats (16) Comment: Populations of loach Creek, Rock Creek, Spring Creek, Rye need to include the need for flushing minnow actually show higher levels of Creek, or Greenback Creek, these areas flows to provide loose/clean substrate. differentiation than those of spikedace. do not meet the category 1a criterion Our Response: Please see the Each unit identified to date is very under the ruleset for occupied at the discussion under Stream Channel distinct and each of the geographic time of listing. Because none of these Alteration within the Factor A analysis, subdrainages needs to be managed

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independently. White River is likely Our Response: Our studies indicate Ultimately, this is a situation which highly divergent and deserving of that inclusion of these areas is may be resolved, although that is not management as a distinct unit. appropriate at this time. The likely in the short term. Because we are Our Response: While not a criteria in translocation sites were chosen attempting to conserve the species, and the critical habitat designations, this carefully, after field and scientific attempting to develop connectivity information is used in ongoing review of their suitability for spikedace between occupied stream systems management for the two species, and and loach minnow. In some instances wherever possible, inclusion of this genetics is an important consideration (e.g., spikedace in the San Francisco portion of the stream could ultimately in all captive propagation and River in New Mexico), the species have serve as a connective corridor between translocation efforts. Additionally, been eradicated from the area, but the Verde River and upstream portions information regarding the genetic and previously occurred there, so that of Fossil Creek. morphological distinctness of the two suitability is more certain. In other (21) Comment: The lower 2.8 km (1.7 species will be considered as a revised instances, a translocation may miles) of Sycamore Creek should be recovery plan is completed. ultimately prove successful, and included within the designations. (17) Comment: Throughout the designation of critical habitat in the area Our Response: We developed a document, but especially under the will further protect and conserve habitat ruleset, as described in both the Available Conservation Measures for the species. In some areas, should proposed and final rules, which we section, the terms reintroduction, the translocation prove unsuccessful, it applied in making determinations about translocation, and augmentation are would be necessary to determine which the appropriateness of including or used. I would suggest they be defined, factors are responsible for the failure. excluding specific areas. In addition, we and defined early. I assume that for For example, a reinvasion by nonnative used the best available information in these purposes, reintroduction and aquatic species, health issues, or water determining which stream segments to translocation, when referring to loach quality issues may ultimately prove include. At this time, we have no minnow and spikedace, are responsible. Additional translocation information regarding the suitability of synonymous. If so, defining them as efforts may be appropriate if these this area. synonymous early on or selecting one factors are addressed. Should this be the (22) Comment: Those portions of the term and using it throughout the case, but suitable habitat is otherwise Verde River downstream of Tapco document would be of great value present, these streams could ultimately should be removed from the Our Response: We have added prove beneficial in the conservation of designations, as this area is developed. definitions of reintroduction, the species. Our Response: Development, in and translocation, and augmentation to the (19) Comment: The lower 33.7 of itself, does not make an area text. Briefly, a reintroduction occurs kilometers (20.9 miles) of Oak Creek unsuitable for spikedace or loach where the species was known to be should not be included within the minnow. The Verde River through these present previously, but is believed designations because there are no areas is classified as perennial, and likely absent based on a lack of known records of either species, and spikedace are known to have occurred detections; translocation occurs where this area is degraded. The upstream throughout this portion of the Verde the species was not known to be present portions are in an urban area. In River, while loach minnow records previously, and augmentations are addition, this area is not currently being occur both above and below Tapco. The additions of more fish to streams as considered for translocation. area may ultimately prove to provide follow-up to reintroduction or Our Response: We agree that there are suitable habitat, or serve as an important translocation efforts. no known records from this stream for connective corridor between upstream either species, that some degradation Comments From States portions of the Verde River and has occurred, and there are no downstream areas, including tributary Section 4(i) of the Act states, ‘‘the translocation efforts currently planned streams. Secretary shall submit to the State for this stream. However, spikedace and (23) Comment: The Salt River within agency a written justification for his loach minnow are known to have the Salt River Canyon Wilderness failure to adopt regulations consistent occurred in the mainstem Verde River should be included as there are records with the agency’s comments or both above and below Oak Creek. Oak of spikedace from the Salt River petition.’’ Comments received from the Creek does have perennial flows, and confluence with Cibecue Creek. State regarding the proposal to designate none of the degradation is permanent in Our Response: There are records for critical habitat for the spikedace and nature (i.e., a dam, reservoir, or other spikedace at the confluence with loach minnow are addressed below. permanent alteration). Because of its Cibecue Creek, with the most recent in (18) Comment: Some commenters lack of occupancy records, Oak Creek is 1967. Under the ruleset, however, we questioned whether it is appropriate to classified as an essential area for the categorized this stream as a 1b stream, include as critical habitat those areas conservation of both species. For indicating the stream has been used for reintroduction sites when no spikedace, it was classified as a 2a permanently altered by Theodore success has yet been shown. They note stream, indicating that it will serve as an Roosevelt Dam and Lake, so that that, if the species do not become extension of habitat in the unit. For restoration is unlikely. established then it is likely that the loach minnow, it was classified as a 2b (24) Comment: Bass Canyon dries up habitat is unsuitable and, therefore, stream, indicating it can serve to expand into pools and is therefore not suitable should not be included in the critical the geographic distribution of the for either species and should be habitat designations. If designated, the species across its historical range. removed from the designations. AGFD would like the rule to state these (20) Comment: The lower portions of Our Response: We have reviewed the areas will be removed if it is determined Fossil Creek below the barrier should site and spoken with individuals they are unsuitable. This would apply to not be included in the designations familiar with the site’s flow regime and Rock and Spring Creek, Fossil Creek, because of the presence of nonnatives. habitat. While the stream is not Hot Springs Canyon, Redfield Canyon, Our Response: We agree that considered perennial, it provides and Bonita Creek for both species, and nonnative species are present in the suitable expansion habitat when the Blue River for spikedace only. lower portions of Fossil Creek. flowing, and is a tributary to Hot

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Springs Canyon. As such, we have (29) Comment: The lower 4.2 monitoring data, ‘‘synthesis’’ documents classified it as an essential area (see kilometers (2.6 miles) of Negrito Creek are the only source of information discussion at 75 FR 66504). Hot Springs are proposed as critical habitat and available. Wherever possible, we Canyon is the site of translocated stated as occupied. The NMDGF is attempt to use the original information. populations of spikedace and loach unaware of any records for this area. (33) Comment: Stock tanks are an minnow. These species were placed in The lower 2.0 kilometers (1.25 miles) of attractive nuisance and potential Hot Springs Canyon in 2007, with Negrito will likely provide suitable sources of nonnative fishes, and the annual augmentations of fish. habitat. problem of nonnatives caught in stock Monitoring efforts showed that both Our Response: Dennis Miller (1998) tanks and being released in the river species were present in 2011 (Robinson, identified loach minnow from Negrito should be identified. 2011, pers. comm.). We anticipate that Creek in 1998, approximately 2.0 km Our Response: We agree that stock this translocation effort will be a (1.25 mi) upstream of its confluence tanks can be a concern in native fish success, and that Bass Canyon will serve with the Tularosa River. While the management, and have added language as an extension of habitat in Hot Springs known collection sites are at this point, to our threats assessment to address this Canyon. biologists from the Service and NMDGF issue. (25) Comment: The designations had determined that Negrito Creek (34) Comment: The proposed rule should exclude areas that have an provided suitable habitat upstream as states (p. 66483) that population economic impact on recreational far as the Cerco Canyon confluence, as estimates have not been developed as a fishing. reflected in the designation. result of the difficulty in detecting the Our Response: Potential changes to (30) Comment: One State commenter species. The NMDGF notes that they do recreational activities are discussed in noted a lack of awareness of any records not find them difficult to detect in Section 6 of the draft economic analysis. for Frieborn Creek and stated that appropriate habitats with appropriate Potential impacts on recreational fishing Frieborn Creek is marginal habitat for gear, but rather that population losses are specifically discussed and either species. estimates likely have not been estimated in Sections 6.4.1 and 6.5.2. Our Response: Two monitoring efforts attempted, or reported, because of broad The draft economic analysis notes that in 1998 and 2000 located loach minnow confidence intervals associated with the AGFD has no planned or ongoing in Frieborn Canyon, indicating the estimates, the considerable effort sportfish stocking projects on occupied suitability of the stream for loach associated with making reliable reaches, with the exception of native minnow (ASU 2002; NMDGF 2008). We population estimates, and the brief time Apache trout stocking on Fossil Creek. anticipate translocating spikedace to the any estimate is relevant. In New Mexico, the NMDGF stocked the Blue River system within the next 2 to Our Response: Spikedace and loach East Fork Gila River in 2008 and 2009 3 years, and conclude that Frieborn minnow can be difficult to detect when and plans to continue stocking in the Canyon may serve as expansion habitat at low numbers, as is the case for Eagle future. However, the Service completed for spikedace as well. Creek or the Verde River. We agree, a biological opinion on sportfish (31) Comment: We recommend that however, that at least in part, stocking activity in August 2011 that the portions of the Gila River mainstem population estimates have not been suggests that future stocking activities that are owned by FMC not be excluded attempted for the reasons cited in this will not be found to jeopardize from the final designations unless they comment. In addition, we note that spikedace or loach minnow. adopt comprehensive plans that protect different methodologies are applied in (26) Comment: Those portions of the and enhance habitat within their different streams by different survey Verde River covered by the SRP HCP ownership. teams, which can also complicate should be excluded from the Our Response: Under Section 4(b)(2) discussions on population numbers designations. of the Act, we consider a number of across the species’ ranges as a whole. Our Response: While implementation factors, during the development of a (35) Comment: Soles 2003 should be of the HCP will provide some critical habitat designation, including added as a citation to the statement ‘‘In conservation measures for spikedace whether the landowners have developed the Gila River, agricultural diversions and loach minnow on the Verde River, any HCPs or other management plans and groundwater pumping have caused the HCP does not involve all for an area. As with the 2007 declines in the water table, and surface landowners on this portion of the Verde designation, FMC provided a flows in the central portion of the river River, and therefore does not allow for management plan for the Gila River, basin are diverted for agriculture.’’ exclusion of the area under section Mangas Creek, and Bear Creek in New Our Response: We have reviewed 4(b)(2) of the Act. Mexico. We have determined that it is Soles 2003 and added the citation as (27) Comment: Inclusion of Mangas appropriate to exclude portions of these recommended. Creek is appropriate. three streams on FMC lands based on (36) Comment: Under the Water Our Response: We agree, however, we their management plans, with withdrawals section, the AWSA is have opted to exclude portions of additional conditions. See the discussed as a potential diversion on the Mangas Creek due to protections Exclusions section for further detail. Gila River. The AWSA also has the afforded by the FMC management plan (32) Comment: We recommend that potential to facilitate diversions on the for this area. We are retaining 1.2 km original work, especially published, be San Francisco River. (0.7 mi) of Mangas Creek that are not on the primary source of information rather Our Response: This is correct, and we lands owned by FMC. Please see the than synthesis documents or reports have made appropriate modifications to discussion under the Exclusions section (e.g., Sublette et al. 1990, Propst 1999, reflect this information. for additional detail. and Minckley and Marsh 2009) unless (37) Comment: Additional or different (28) Comment: The decision not to synthesis documents report original citations should be used for portions of include the Agua Fria River and those sources of information. the document, including Propst et al. portions of the Gila River within Our Response: We are charged with 2008, Paroz et al. 2009, and Pilger et al. Arizona is appropriate. using the best scientific information and 2010. Our Response: We agree with this commercial information available in a Our Response: We reviewed the comment. rule. In many instances, especially with citations and the text in the proposed

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rule, and have made appropriate Our Response: This correction has remains in this area and may indicate modifications in the final rule. been made within the text, with an that the area serves as a refuge. While (38) Comment: The proposed rule appropriate citation. the diversion structure may serve as an states that the State of New Mexico impediment to upstream movement, it General Comments Issue 1: Biological lacks adequate regulatory mechanisms is not necessarily a barrier to upstream Concerns to address the issue of introduction and movement of fish (Propst, 2011, pers. spread of nonnative aquatic species. It (44) Comment: There were many comm.). With water present below the should be noted that New Mexico State comments submitted with technical diversion, and the presence of spikedace regulations prohibit the use of corrections, additional literature in this area, albeit not consistently, over nonnative baitfish, except for the use of citations, and specific biological the last 50 years, we conclude it is fathead minnow (Pimephales promelas) information on stream segments. appropriate to retain this area within the as a baitfish in the Gila and San Our Response: We have reviewed all critical habitat designations. Francisco river drainages. of these comments and have (47) Comment: Bass Canyon is Our Response: This comment is, in incorporated the information in this unsuitable for spikedace and loach part, correct. The remainder of the text final rule, as appropriate. minnow due to lack of flows. on this point states that regulation of (45) Comment: We received Our Response: We have visited the activities that can lead to the spread of comments that Bear Creek should be site and conclude that, while it may not nonnative species is inadequate, as included within the designation for be classified as perennial, it contains many introductions are the result of loach minnow, and conversely that Bear adequate flows and appropriate incidental or unregulated actions. Creek should not be included within the substrates during significant portions of (39) Comment: The NMDGF suggests designation. the year to support the two species. In adding language to the discussion on Our Response: In reviewing the addition, it joins with Hot Springs ‘‘Available Conservation Measures’’ information on Bear Creek, including Canyon, where a spikedace and loach regarding repatriation of spikedace to surveys and habitat, we have minnow translocation effort has been the San Francisco River, removal of determined that inclusion of Bear Creek under way since 2007. Bass Canyon can nonnative fishes from the Forks area, is appropriate. Please see the discussion serve as an extension of habitat for that beginning in 2007, and removal of on Bear Creek in the section on population, and we are therefore nonnative fishes in Little Creek Summary of Changes from Proposed retaining Bass Canyon within the beginning in 2010; and efforts to acquire Rule. designations at this time. and hold separate stocks of spikedace (46) Comment: The lowermost (48) Comment: The Biological and loach minnow in a refuge facility. mileage on the Gila River in New Opinion issued by the Service for Fort Our Response: Appropriate Mexico, as it travels through the Virden Huachuca on 14 June 2007 states that modifications were made to this section Valley, is predominantly dry, and has the ‘‘most likely sites for such in the final rule. three diversion structures, rarely reestablishments appear to be springs (40) Comment: The rule should be supports fish, and is not connected to within the tributaries to the mainstem updated to include Propst et al. 2008 as any other suitable habitats at this time. San Pedro River rather than along the a reference regarding nonnative fishes, Our Response: We reviewed mainstem river where critical habitat in place of Propst 1986. occupancy data for this area. Spikedace would be designated. A scientific basis Our Response: We have included have been detected occasionally within for changing the approach from Propst et al. 2008 in several places the area downstream of the diversion reestablishing the spikedace at springs within the document in regards to structures during surveys conducted within the tributaries to the mainstem nonnative fish. over a 50-year period, with the most San Pedro River needs to be provided. (41) Comment: The final rule should recent detection in 1999 (Rinne et al. Our Response: This is an error in the include information about competition 1999, p. 22; NMDGF 2008). Spikedace biological opinion, and not in the with and predation by smallmouth bass and loach minnow have been detected proposed rule. The habitat use, as as a likely threat, and Pilger et al. 2010 immediately upstream of the diversion described in the proposed rule at pages should be added as a citation. more recently, into 2003, and the area 66483 and 66497 through 66498 is Our Response: Smallmouth bass are around the Sunset Diversion had correct. All reestablishment efforts to mentioned in several places within the sufficient potential for spikedace and date have occurred on flowing streams rule. Pilger et al. 2010 is also cited in loach minnow that it was added to (Hot Springs Canyon, Redfield Canyon, the text. Please see the Disease or regularly monitored sites in 2010 and Fossil Creek, Bonita Creek, and the San Predation section. In addition, results of 2011 (Propst, 2011, pers. comm.). Francisco River) and not in springs. the study by Pilger et al. 2010 are With respect to flow patterns, the (49) Comment: The proposed rule discussed. nearest gage station is just downstream assumes that these species were present (42) Comment: Riffles are identified as of the confluence with Blue Creek, so in the San Pedro River at the time of a PBF for spikedace, but they prefer does not accurately portray the flow listing in 1986 but were undetected due runs and glides, not riffles. patterns below the diversion structures. to infrequent or inconsistent surveys. Our Response: While we agree that The next nearest USGS gage Our Response: This statement is spikedace are primarily associated with downstream of the barriers is 09439000 incorrect, and reflects a runs and glides, they may be associated on the Gila River at Duncan. The misunderstanding in the terminology with other habitat types and many monthly statistical data for this gage, used within the proposed rule. Our authors (Barber and Minckley 1966, p. recorded since 2003, show that flows determination of ‘‘occupied at listing’’ 31; Propst et al. 1986, p. 12; Rinne and have been at 0 cfs on one occasion, and was based on whether or not the species Kroeger 1988, p. 1; Rinne 1991, pp. 8– been below 5 cfs on five occasions in was present up to the date of listing in 10) note use of riffles by spikedace. the months of May, June, or July. 1986, and not on the presumption that (43) Comment: The San Francisco However, in the area immediately the species was present but undetected. River dries annually through the Alma downstream of the Sunset Diversion, It should be noted that in the NOA, we Valley and is not perennial throughout native suckers and channel catfish are announced that we were modifying our as stated on page 66515. frequently present, indicating that water definition of occupied to improve

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clarity on our approach to the critical assemblages where nonnatives are Our Response: The Act provides habitat designation. In the NOA, we present. definitions of threatened and defined areas occupied at the time of (52) Comment: The Service failed to endangered species. A threatened listing to be those areas where the fish establish that there is a need for species is one which is likely to become were identified in the original listing uplisting spikedace and loach minnow, an endangered species within the documents, as well as any additional and does not give population estimates foreseeable future throughout all or a areas determined to be occupied after or know the status of the species. The significant portion of its range. An 1986. Our reasoning for the inclusion of Service should provide actual endangered species is one which is in these additional areas (post-1986) is that population counts. danger of extinction throughout all or a it is likely that those areas were Our Response: Please see our significant portion of its range. We occupied at the time of the original response at Comment 9 above, which provide justification for the listings, but had not been detected in addresses the status of the species. reclassification within the proposed and surveys. This change in definition does (53) Comment: The Service is not final rule, and note that we determined not result in a change to any of the areas using best scientific and commercial that listing the species as endangered included or excluded as critical habitat information available. Fifty percent of was warranted but precluded in 1994 in the proposed rule. the citations are 10 or more years old. (59 FR 35303). In part, reclassifying the (50) Comment: The statement that A number of links to Web sites cited two species to endangered status fulfills ‘‘After leaving the Mogollon Mountains were broken; at least nine of the our obligation for finalizing the in New Mexico, the Gila River is citations referenced data about species reclassification. In addition, affected by agricultural and industrial other than the spikedace or loach appropriately classifying the species water diversions, impoundment, and minnow, or referenced different notifies Federal agencies of the correct channelization’’ is incorrect. There have ecological environments than that of the status of the species so that they can been no significant modifications to the spikedace or loach minnow. manage for the species appropriately. river channel or further commercial Our Response: Critical habitat designations use the best available The Service treats endangered animal activities along the river from Mogollon species similarly to threatened species Creek to the New Mexico/Arizona State commercial and scientific data to identify lands that contain the physical with regard to prohibitions on take and line since listing these species in 1986. requirements for consultation by Our Response: This statement and biological features essential to the Federal agencies. However, the Act encompasses present uses of the area as conservation of the species. The Act provides management flexibility for well. Propst et al. 2008 (pp. 1237–1238) requires that we use the best available threatened species that is not allowed notes that irrigated agriculture and scientific information regardless of the for endangered species. The Service livestock grazing are the predominant age of the information. In some cases, sometimes makes exceptions to the take uses, and that human settlement has the best available information is derived rule for threatened species (for example, increased since 1988. Soles (2003 p. 69) from different species with similar to allow some traditional land-use notes that diversions for agriculture in habitat requirements. In designating activities to continue), and is able to the Cliff-Gila Valley are modest, but critical habitat for spikedace and loach issue take permits to allow more that, during dry seasons, may remove minnow, we have used the best the Gila’s entire baseflow of about 40 available scientific and commercial activities that affect threatened species cubic feet per second (cfs). information, including results of than would be permitted for endangered Part of the language in this statement numerous surveys, peer-reviewed species. pertains primarily to the Gila River literature, unpublished reports by (56) Comment: We received several below the Arizona border. We have scientists and biological consultants, comments indicating that the Service separated these statements for accuracy and expert opinion from biologists with did not adequately show that an and added the Propst et al. 2008 and extensive experience with these species. individual land use necessitated Soles 2003 citations to the rule. Further, information provided in designation of critical habitat. (51) Comment: Additional data comments on the proposed designations Specifically, one comment noted that should be supplied to support the and the draft environmental and numbers of cows and elk are down and conclusion that declines of native fish economic analysis were evaluated and that the Service should justify species appear linked to increases in taken into consideration in the designation of critical habitat in light of nonnative fishes (p. 66491). FWS cites development of these final designations, the reduced populations of grazing data with a 28-year gap, which is not as appropriate. animals. Another comment noted that good science because the periodicity (54) Comment: The Service has failed the Service failed to provide cannot be used to establish a reasonable to specify what ‘‘residual effects of past justification for the designations of trend. livestock grazing and impacts to critical habitat due to improperly Our Response: We have added uplands, riparian vegetation’’ and managed wildfire and the use of additional information from Propst et al. streams actually entail. chemicals for fire suppression. 2008. Propst et al. 2008 found that Our Response: Please see the Our Response: We note that grazing physical modification of streams, discussion on livestock grazing under animals and fire management are only coupled with widespread introduction ‘‘The Present or Threatened Destruction, one of several concerns for spikedace and establishment of nonnative aquatic Modification, or Curtailment of Habitat and loach minnow. Please see the species led to the decline of native or Range’’ section. This section outlines discussion under Summary of Factors fishes (Propst et al. 2008, p. 1236, 1246). the types of impacts that can occur as Affecting the Species. This study took place just downstream a result of improper livestock grazing. (57) Comment: The spikedace and of the town of Cliff. While this study We used the term ‘‘residual effects’’ to loach minnow coexisted with the does implicate both altered flow regimes indicate that, in some areas, these diversion dams that have been a part of and nonnative aquatic species, Propst et impacts are due to past, and not the local agricultural culture and al. 2008 (p. 1246) conclude that ongoing, livestock grazing. heritage for hundreds of years. The managing for natural flow alone would (55) Comment: The Service should Service should demonstrate how water not be sufficient to conserve native fish state what is accomplished by uplisting. uses today could impact habitat

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although these same uses have not done information available. The discussion (64) Comment: Recreation is listed as so in the past. on livestock grazing cites many studies a threat for the Gila River. No recreation Our Response: Please see the and authors on the topic of livestock occurs in the Cliff-Gila Valley. discussion on water diversions under grazing, and we have added a citation Our Response: Our list of potential the subheading of Water Withdrawals, from Medina et al. (2005). We have impacts to spikedace and loach minnow which details the potential impacts reviewed additional work by Rinne for the Gila River encompassed more associated with diversions and water (Rinne 1999b) and considered the than the Cliff-Gila Valley, including withdrawals. In addition, climate information in this literature. We lands managed by the USFS, and we change and drought are compounding believe the discussion on livestock conclude the original assessment is the impacts of water withdrawals on grazing and impacts to fish provides a correct. these species. thorough discussion on this topic. (65) Comment: Occupancy by (58) Comment: The Service has failed (61) Comment: Nonnative fish are the spikedace and loach minnow in Eagle to acknowledge the causes for portions biggest problem for spikedace and loach Creek for only brief periods of time of the rivers, streams, and tributaries minnow, and this is a threat that indicates that they suggest fish may indicated on the maps as critical habitat requires removal of the nonnatives and have been placed there via bait bucket periodically drying up. Human construction of barriers to prevent their transfer. population, human use, livestock and spread, neither of which is facilitated by Our Response: We have no evidence wildlife populations and water designation of critical habitat. of bait bucket transfer, or any reasons to believe that such a transfer occurred. diversion do not account for this Our Response: The purpose of Marsh et al. 1990 (p. 112) provide a phenomenon. According to the designating critical habitat is not to discussion on the likely cause for the Northern Arizona University Forestry remove threats for the species, but is sporadic records of spikedace and loach Department, the reason for reduced instead to identify those areas that are minnow in Eagle Creek, concluding it water flow is due to in excess of 300 essential to the conservation of the likely that the species were missed in percent greater tree density today, species. While designation of critical compared to presettlement. The Service some survey efforts while detected in habitat does not remove the threat from should examine the relationship others due to their tendency to expand nonnative species, it does identify those between tree density and water and contract spatially in response to areas that are critical to the conservation reduction, and should specify amount of natural variations in their habitat. We of the species, which allows land water flow reduction due to tree density further note that portions of Eagle Creek managers and others to prevent further vs. other potential causes. The Service are not readily accessible, and are not degradation in areas critical to the should further specify how designation regularly surveyed, so that the species species’ conservation of critical habitat would address the could have been missed, yet present, (62) Comment: The current threat to reduction of tree density issue. during some of the survey efforts. spikedace and loach minnow from Our Response: No literature citations Finally, we note that there are other nonnative fish in the Gila River and were provided with this comment, and gaps in the survey record for other Mangas Creek where they pass through we were unable to locate any literature streams. These gaps may be due to a FMC lands is greatly overstated. relevant to this comment. Please note lack of survey efforts, or to lack of Our Response: The discussion of that a critical habitat designation is not detection during survey effort. For Mangas Creek and the Gila River the process through which we rule out example, on the Verde River, spikedace encompasses landowners other than habitat suitability due to threats, nor is were not detected from 1950 to 1975 FMC, and there are additional it the process through which we (ASU 2002). conduct research as suggested in the management considerations for these (66) Comment: The lower San comment. areas. We have updated the information Francisco is not occupied, with nearest (59) Comment: The Service has failed for Mangas Creek. detections 20 miles upstream, in the to provide justification for the critical (63) Comment: Road impacts to the vicinity of Apache-Sitgreaves National habitat designations due to human use species would be dealt with through Forests boundary. of resources, including agriculture, section 7, and, therefore, designating Our Response: The San Francisco mining, road building, residential critical habitat would not address this River, as a system, was classified as development, and recreation. The issue. occupied at listing, and the designation Service should specify how these uses Our Response: This comment is reflects this. contribute to habitat loss and stream incorrect. First, critical habitat (67) Comment: Both Eagle Creek and degradation. designation is not the process through the San Francisco River have nonnatives Our Response: Please see the section which we rule out habitat suitability and are not occupied by either on Summary of Factors Affecting the due to threats, but the process through spikedace or loach minnow. Neither can Species. This section addresses these, as which we identify habitat that provides therefore be considered essential to the well as other natural and human use for one or more of the life-history conservation of the species. impacts to the species. functions of the species. Second, should Our Response: We agree that both (60) Comment: We received several future road projects have impacts on Eagle Creek and the San Francisco River comments indicating that we failed to critical habitat, section 7 would be the have nonnative aquatic species; look at the benefits of grazing to fish or process used to identify and minimize however, this alone does not preclude wrongfully assumed that livestock those threats, as appropriate. In areas them from being considered for critical grazing is harmful to spikedace and where the species are not currently habitat designation. Further, as noted in loach minnow and their habitat. In some present, but that are designated as the proposed rule, we consider Eagle instances, commenters noted that the critical habitat, it would be the nexus Creek to be occupied by both species, work of Rinne and Medina should be between the project and critical habitat while the San Francisco River is included within our review. which would lead to section 7 occupied by loach minnow and the site Our Response: Please see the response consultation under the Act, assuming of a reintroduction effort for spikedace. to comment 51 above regarding use of the action was either Federally funded, (68) Comment: The presence of a large the best scientific and commercial permitted, or carried out. nonnative fish population and refugia

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that allow nonnative fish to persist and and commercial information available with a 28-year gap, which is not good repopulate portions of proposed critical when evaluating areas to be included science because the periodicity cannot habitat on Eagle Creek and the lower within critical habitat; however, the be used to establish a reasonable trend. reach of the San Francisco River critical habitat designation process does Our Response: This comment following significant flood events make not undertake studies of the kind addresses the information found in the these streams unsuitable for both recommended. proposed rule under the discussion at spikedace and loach minnow. Absent a (71) Comment: Fossil Creek is the Factor C for Predation. Please also see comprehensive management plan only stream on the Tonto National the information on competition under agreed to by affected parties, the Forest that is occupied by loach Factor E on Nonnative Fishes, which complex land ownership patterns and minnow. Translocations for spikedace provides additional citations. current uses of lower Eagle Creek and appear to be unsuccessful. Inclusion of (74) Comment: Portions of the the lower San Francisco River Fossil Creek as critical habitat for proposed critical habitat in Units 6, 7, substantially compromise the logistics spikedace may be premature. and 8 overlap sections of river currently and practicability of achieving adequate Our Response: We recognize that occupied by Gila trout. The designations control of nonnative fish required to Fossil Creek is a translocation site for appear to create a conflict in make the segment of these rivers both spikedace and loach minnow. We management objectives; for example, suitable for spikedace and loach are designating Fossil Creek as a 2a adult Gila trout potentially prey on minnow. stream, indicating that it could serve as juvenile spikedace and loach minnow. Our Response: Critical habitat an extension of habitat in the unit, as The dynamics of this potential fish designation is not the process through existing habitat is insufficient to recover community are not yet clearly which we rule out habitat suitability the species. Please note the updated understood. due to threats, but the process through language regarding the potential success Our Response: We would agree that which we identify habitat that provides of the spikedace reintroduction effort in the dynamics of the interactions for one or more of the life-history the section below on Summary of between Gila trout and spikedace and functions of the species. As defined in Changes from Proposed Rule. In loach minnow may not yet be fully section 3(5)(A) of the Act, critical addition, please see our response at understood. However, this does not habitat means (i) the specific areas Comment 18 to a similar question. eliminate the possibility of the three within the geographical area occupied (72) Comment: The statement ‘‘the species occurring in the same stream. by the species, at the time it is listed in majority of historical native habitat’’ is For example, both Gila trout and accordance with the provisions of overbroad and unclear as it applies to spikedace are known to occur in the section 4 of the Act, on which are found the Gila River in New Mexico. Also, this Verde River. those physical or biological features (I) statement is incorrect, as it pertains to (75) Comment: Spikedace were found essential to the conservation of the the Gila River in New Mexico, and the in the Middle Fork Gila River in 2008 species and (II) which may require activities described have not, nor do and 2010. special management considerations or they threaten destruction, modification, Our Response: In response to this protection. During the designation or curtailment of the loach minnow or question, we have updated our process, the Service identifies threats to spikedace habitat or range in New information on the Middle Fork Gila the best of our ability where they exist. Mexico. Within New Mexico, the Gila River to reflect that spikedace were Identification of a threat within an area River has not been altered significantly found in the Middle Fork Gila River in does not mean that that area is no longer since the time of listing in 1986. The these years (Propst et al. 2009, p. 10; suitable, rather that special management middle, east, and west forks of the Gila Gilbert 2011 pers. comm.). or protections may be required. The all lay within the Gila National Forest (76) Comment: Propst et al. (2008) need to address a particular threat, such and watershed conditions have determined that the primary driver as nonnative fishes, in a portion of the improved in these areas. affecting native fish in the Upper Gila critical habitat designation may or may Our Response: This statement is River and San Francisco River not arise in the future. Further, found at the beginning of the discussion catchments was long-term discharge, describing both the areas that support at Factor A, the Present or Threatened with nonnative fish exacerbating the PBFs and the threats to those areas Destruction, Modification, or effects of low discharges. In the water assists resource managers in their Curtailment of Habitat or Range, and withdrawal section, it should be noted conservation planning efforts for applies to the species rangewide, not to that both existing and potential water threatened and endangered species like the Gila River in New Mexico withdrawals are one of the primary spikedace and loach minnow. specifically. As noted elsewhere in the threats to spikedace and loach minnow. (69) Comment: Eagle Creek is listed as proposed rule, we estimate the present Long-term reductions of instream flow perennial, and this is incorrect. range of spikedace to be approximately have been shown to negatively affect Our Response: We have modified the 10 percent of its historical range, while both species. description of Eagle Creek to indicate that of loach minnow is estimated to be Our Response: In response to this and that the stream is largely a perennial 15 to 20 percent of its historical range. other comments, we have incorporated system. While watershed conditions may have information from Propst et al. (2008) (70) Comment: We received improved within the Gila National within the Flow Regime, Nonnative comments that additional studies were Forest, there are still threats in those Fishes, and Connectivity discussion needed, including a study of the future areas, including wildfires, residual under Factor E above. impacts of increased vegetation near the impacts of livestock grazing, and (77) Comment: A settlement San Pedro River on the ability of competition with and predation by agreement regarding pumping wells in groundwater to reach the river, and on nonnative species. the Big Chino Valley was effected pebble counts or other substrate (73) Comment: Additional data between the Salt River Project and the evaluations of spikedace and loach should be supplied to support the towns of Prescott and Prescott Valley in minnow critical habitat. conclusion that declines of native fish 2010. This agreement will allow the Our Response: The Service makes species appear linked to increases in withdrawal of approximately 2.5 billion every attempt to use the best scientific nonnative fishes. The Service cites data gallons of water/year from the Big Chino

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Valley aquifer, and could seriously Our Response: We include a Our Response: We agree, and have impact surface flow in the upper Verde discussion of the impacts of livestock modified the table to reflect this for all River. Implementation of this proposal grazing within Factor A of the rule. We translocated or reintroduced lends credence to the need for uplisting note that adverse effects to species such populations. to endangered of spikedace. as spikedace and loach minnow are (85) Comment: Critical habitat in Our Response: We have added decreasing, due to improved Fossil Creek should be extended information and citations regarding the management on Federal lands (Service upstream to Fossil Springs. Both Agreement in Principle signed between 1997c, pp. 121–129, 137–141; Service spikedace and loach minnow have been Salt River Project, Prescott, and Prescott 2001, pp. 50–67), largely due to translocated into Fossil Creek between Valley indicating that they have agreed discontinuing grazing in the riparian the springs and downstream to Irving. to try to move forward without litigation and stream corridors. However, we also Fossil Creek is considered recovery in the development of the Big Chino note that livestock grazing within habitat for loach minnow and project. watersheds where spikedace and loach spikedace, but the habitat is threatened (78) Comment: Some of the language minnow and their habitats are located by recreational development and under the Nonnative Fishes subheading continues to cause adverse effects. degraded by excessive human use. of Factor E appears to discount the Following finalization of the critical Fossil Creek was designated a Wild and detrimental effect of larger nonnative habitat designations, existing Scenic River in 2010. species, e.g., green sunfish, smallmouth consultations on livestock allotment Our Response: Please see the response bass, flathead catfish, and others, all of management plans may require to comment 7, as well as the discussion which are highly predacious on additional consultation. below on Summary of Changes from spikedace and loach minnow. (82) Comment: The recovery Proposed Rule. Our Response: This language has been objectives for spikedace and loach (86) Comment: It is unclear why West modified to indicate the specific minnow in the current recovery plans is Clear Creek was excluded from critical problems associated with small and delisting through protection of existing habitat. The lower 7.2 miles of West large nonnative fish species. populations and restoration of Clear Creek was included in the 2000 (79) Comment: Many of the populations into historical habitats. The designation. Our Response: We are including the descriptions of PBFs essential for downlisting and delisting criteria lower 10.9 km (6.8 mi) of West Clear spikedace and loach minnow are vague expressed in the proposed rule make no Creek for spikedace only, as there are no and undefined. They provide little mention of the existing natural known records for loach minnow from detail as to their exact meaning. While populations or their habitats. Assuring recovery and long-term conservation of this stream. this may be a result of the relative lack (87) Comment: We do not agree that existing natural populations should be of research and knowledge of the Tonto Creek, Rye Creek, and Greenback the primary emphasis in any down- or species, it should also encourage the Creek should be excluded from critical delisting proposal. Service to advocate more applied habitat. Loach minnow and spikedace investigations on the species in order to Our Response: In response to this typically co-occurred historically. The better understand their requirements. comment, we have amended the lack of records of loach minnow from Our Response: We acknowledge that language to indicate that, in addition to Tonto Creek was more likely an artifact additional research would be valuable; increasing the number of occupied of incomplete sampling, rather than lack however, the discussion under the streams, there will be a continued of occurrence. We believe that Tonto subheading of PBFs presents the best protection of existing populations and Creek does have suitable habitat for information currently available for the habitat. This was implied in the text of loach minnow and is worthy of species. the proposed rule, but we have clarified inclusion. (80) Comment: In addition to fishes, the language to place more emphasis on Our Response: Please see the response nonnative species that also affect protection of existing populations and to comment 8 above. spikedace and loach minnow include habitats. (88) Comment: We question why West parasites, crayfish, mollusks, and (83) Comment: The Service should Fork Black River was excluded from probably others. include bridges, diversion structures, critical habitat. The lower 6.4 miles was Our Response: We have modified the and other structures in the designations. included in the 2000 designation. language under the subheading of Although they lack the PBFs, it is often Our Response: We have included Nonnative Aquatic Species to reflect these structures that cause the most within the designation 19.1 km (11.9 this. Information regarding other degradation, and including them would mi) of the East Fork Black River, 7.1 km nonnative aquatic species is found provide impetus to management (4.4 mi) of the North Fork East Fork under Factor C. agencies to modify their detrimental Black River, 3.4 km (2.1 mi) of Coyote (81) Comment: Although the concern features in order to reduce effects on the Creek, and 2.3 km (1.4 mi) of Boneyard for livestock grazing as a threat has species during both normal and Creek. There are no known records from lessened, the threat still remains. extraordinary maintenance. the West Fork Black River. East Fork Livestock permittees on the National Our Response: Generally, areas Black River is directly connected to the Forest lands continually request without PBFs cannot be considered North Fork East Fork Black River, where livestock access to riparian areas that essential to the conservation of the loach minnow have been detected, were closed for resource protection. species. However, it should be noted whereas the West Fork Black River is Also many of the areas proposed for that, should one of these features not directly connected, and therefore critical habitat are not currently require maintenance, the Service would does not provide an extension of habitat protected from livestock, either by evaluate potential up and downstream (i.e., is not a 2a stream) for loach structures or in their allotment effects from such an action, assuming it minnow in this complex. management plans. Additionally, has a Federal nexus. (89) Comment: Threats along the Gila disturbance of soil and vegetation in (84) Comment: Current occupation of River include water withdrawal, stream upper watersheds will continually Fossil Creek and San Francisco should channelization, water quality increase sedimentation in drainages. be uncertain. degradation, roads and bridges, and

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livestock grazing, as well as the spread for one or more of the life-history recovering threatened and endangered of nonnative species and climate functions of the species. Please see species. At this time, however, we have variability and change, especially additional discussion on this point at not received a complete management drought. comment 66. plan from the Upper Eagle Creek Our Response: This issue has been (93) Comment: Eagle Creek has two Watershed Association and, therefore addressed within the rule. Please see the year-round stream crossings and a third cannot exclude this area from the discussion under Unit 8 for special seasonal crossing, and all are on private designations. management considerations, as well as land. There are private land holdings (96) Comment: There were several the information on climate change and from Honeymoon Campground south on comments referring to the unsuitability nonnative species. Eagle Creek. In addition, there are of the San Pedro River as critical (90) Comment: The proposed rule Upper Eagle Creek Watershed habitat, especially because of the notes that grazing may cause increased Association Management plans. For nonnative fishes and problems with erosion and deposition and increased these reasons, Eagle Creek should be pollution in the upstream portions of sediment loads from livestock, but exempt from critical habitat. the river, which is in Mexico. nowhere in the proposed rule does the Our Response: Critical habitat Our Response: The Service is aware of document acknowledge the Chitty flood designation does not impose restrictions the challenges posed by nonnative of July 2007 from Chitty Creek that on private lands unless Federal funds, aquatic species in the San Pedro River, changed the entire area and affected permits, or activities are involved. particularly given that a suitable barrier East Eagle and Eagle Creek. The Chitty, Federal agencies that undertake, fund, site has not been found at this time. Hot Air, and Eagle wildfires have or permit activities that may affect However, we have determined that occurred since 2007. The Clifton Range critical habitat are required to consult inclusion of the San Pedro River may District under the Mogollon Rim is with the Service to ensure that such impact operations at Fort Huachuca prone to large lightning strikes and has actions do not adversely modify or critical to national security. Therefore, no prescribed burns scheduled; destroy designated critical habitat. we are excluding the San Pedro River as therefore, the potential of another There will likely be minimal, if any, critical habitat for the two species. See wildfire is evident and large-scale impact to private land holdings along the Exclusion discussion in the text. erosion occurring, making East Eagle Eagle Creek from the critical habitat (97) Comment: Does the Service have and Eagle Creek not suitable for designation, unless a Federal nexus any information regarding possible spikedace and loach minnow as stable exists, as described above. Appropriate causes of the spikedace decline in New habitat. exclusions along Eagle Creek have been Mexico and the magnitude of the Our Response: We have added made for the San Carlos Apache Tribe decline? information regarding wildfires to the and FMC. With respect to the Upper Our Response: The proposed and final discussion for Eagle Creek. Eagle Creek Eagle Creek Watershed Association rules contain a complete five-factor continues to support one or more of the Management Plans, no such analysis, which describes threats to the PBFs for spikedace and loach minnow, management plan was submitted to the species and presents the best available and we therefore believe it is reasonable Service for consideration during this scientific information. to include Eagle Creek within the rulemaking. (98) Comment: Proposed critical designation. East Eagle Creek was not (94) Comment: Eagle Creek should be habitat creates a conflict in management included at the proposed rule stage, and excluded as neither species has been objectives between spikedace and loach is not included in the final rule for seen there in more than 10 years. minnow and Gila trout. either species. Our Response: We refer the reader Our Response: There is some overlap (91) Comment: The proposed rule back to the ruleset used in determining in the species’ distribution; however, states that open stock tanks contain which areas would be included as designation of critical habitat would nonnative aquatic species, which is not critical habitat, and to the definitions of lead to protection of the stream habitat documented on East Eagle or Mud occupancy within the rule. Eagle Creek in which all three species occur, and we Springs allotment, and in fact all stock was occupied at listing by both species, do not believe there will be conflicts in tanks go dry a minimum of once each and is classified as a 1a stream under management. year. the ruleset, as it continues to provide (99) Comment: The Fish and Wildlife Our Response: The discussion on suitable habitat for the species. Service has stated that any final action nonnative species and stock tanks is (95) Comment: The Upper Eagle Creek resulting from this proposed rule will be under the general discussion for Watershed Association is participating based on the best scientific and livestock grazing, and is not attributed in the Ranch Heritage alliance and has commercial data available and be as to Eagle Creek, or the East Eagle or Mud worked for the last two years with the accurate and as effective as possible. Springs allotments. National Riparian Service Team to The proposed designation of the (92) Comment: The crayfish develop plans, methods, and monitoring Redfield Canyon stream segment as population is the only increasing protocols to develop habitat for critical habitat (CH) is based upon aquatic life on Eagle Creek. Numerous numerous species. This new method inaccurate information and would have studies over the last 10 years show no should be encouraged and the Greenlee no beneficial effect on the survival of increase in native fish. A proposed rule County Rivers and tributaries should be the spikedace or loach minnow. In change is not the solution. excluded from the critical habitat representing all private landowners Our Response: We have included designations for loach minnow and along this segment and having the most discussions on the presence of spikedace to give the management plans firsthand and long-term knowledge of nonnative aquatic species and potential an opportunity to succeed. The past the area, we request that this segment be impacts to spikedace and loach plan of just fencing the riparian areas removed from consideration. minnow; however, critical habitat has not been a total success, and a more Our Response: Redfield Canyon is designation is not the process through positive approach of collaboration is currently the site of a species which we rule out habitat suitability recommended. translocation effort and it provides due to threats, but the process through Our Response: We agree that suitable habitat for the species. which we identify habitat that provides collaboration is a positive approach to However, in response to information

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received during the comment period, we stream segment are listed in the unit considered excluded by text in the rule have revised the designation within descriptions for each stream. and are not designated as critical Redfield Canyon, and reduced the area The conservation value of unoccupied habitat. Should Federal action occur to be designated as critical habitat to 6.5 segments is in their ability to allow the involving these lands it will not trigger km (4.0 miles) from the confluence with species to expand from their current section 7 consultation with respect to Sycamore Canyon downstream to the distribution until recovery is reached. critical habitat and the requirement of barrier constructed at Township 11 As noted in the rule, both species no adverse modification unless the South, Range 19 East, section 36. currently occur in a small percentage of specific action would affect the PBFs in (100) Comment: Within the DEA for their historical range, and cannot be the adjacent critical habitat. the designation you state: ‘‘Conservation recovered in place. (105) Comment: The PBFs must be actions that might be performed for a (102) Comment: How the Service present before land is eligible to be variety of fish species include, but are expects success when they are only designated as critical habitat. The not limited to (7) application of going to try to manage ‘‘a portion of the Service cannot designate land that does chemicals to eradicate fishes, etc.’’ The Blue River’’ and ‘‘a small portion of not contain the PBFs, and then rely on chemical rotenone is most often used for Bonita Creek’’ for native fish is exclusion criteria and subsequent this purpose. The Bureau of confusing. We don’t know the location Section 7(a)(2) consultations to filter out Reclamation (BOR) has recently of the proposed fish barrier on the Blue land that should not have been included acquired state lands along Redfield River but we do know that the failed in the designation. Canyon where the fish were fish barrier that is being fixed on Bonita Our Response: Each of the areas translocated in 2007. BOR intends to Creek is almost at the confluence with within the critical habitat designation construct a fish barrier in the Canyon to the Gila River. That means that all the contain one or more of the PBFs, and do prevent nonnative fish from threatening fish above the fish barrier for over 14 not use exclusions or a section 7 the translocated fish. Generally miles will mix. consultation to filter out land after the Our Response: At this time, the only following such a construction project listing action is complete. In fact, portion of the Blue River that may be rotenone is used to ensure that the area exclusions are developed before the mechanically treated for nonnative above the dam is clean of nonnatives. It listing is completed, and are based on fishes are a few larger pools near where several factors, which can be found in is likely that rotenone will be used in the barrier construction will take place, the ‘‘Exclusions’’ section of the rule. Redfield Canyon and this is not in the lower portions of the Blue River. Section 7 is used to analyze the impacts reviewed or even mentioned in the For Bonita Creek, chemical renovation of actions on PBFs present within a DEA, which is in error given that the occurred in an approximately 2-mile given area. Arizona Game and Fish heavily depend stretch of the river. Both of these areas (106) Comments: There were several upon this tool for managing native fish are limited in scope. comments regarding discrepancies in populations especially for threatened (103) Comment: The Service has stream miles proposed for critical and endangered species. Analysis of this relied on ephemeral reference points to habitat, especially in the draft economic action should be included in the DEA describe critical habitat areas and is in and environmental analyses. and the effects it will have on local violation of 50 CFR 424.12(c). Our Response: We have revisited all drinking water. Our Response: The ephemeral of the mileage to ensure that it is Our Response: For Redfield Canyon, reference point referred to is the use of accurate in this final rule. The final nonnative aquatic species are limited to the bankfull stage in describing critical environmental and economic analyses green sunfish, which are being habitat. Bankfull stage is described in will reflect the correct mileages. mechanically removed. There are no the section Criteria Used to Identify (107) Comment: One commenter plans to use rotenone in Redfield Critical Habitat. It is not an ephemeral noted that, with respect to translocation Canyon. feature, in other words, it does not or reintroduction sites for the species, (101) Comment: The proposed rule disappear. It can always be determined the Service indicated that monitoring and the environmental assessment lack and delineated for any stream we have will be conducted at each of these sites specific discussions for each segment designated as critical habitat. We to determine if populations ultimately regarding how the unoccupied segment acknowledge that the bankfull stage of become established at these new is ‘‘essential for the conservation of the any given stream may change depending locations. The fish were translocated in species.’’ Both documents describe on the magnitude of a flood event, but 2007, yet there is no information conditions in each segment that may be it is a definable and standard included within the DEA or the Federal favorable to the species but do not measurement for stream systems. Register notice that describes the explain how the Service determined (104) Comment: The precise areas monitoring that has been done in these that the unoccupied segment was proposed as critical habitat are locations or gives the results of this essential. In addition, there is no improperly described, and their location monitoring. It is stated that the areas of discussion regarding the conservation and impacts on land and water uses are Hot Springs and Redfield Canyon have value of unoccupied segments. uncertain. The proposed critical habitat been augmented. It is unknown to the Our Response: We refer the includes developed areas and public whether this augmentation was commenter to the ruleset, as well as improperly relies on post-designation because the fish are not surviving or if Table 6 within the proposed rule. For exclusion criteria. the action was to increase what has been each stream, we indicated which Our Response: As noted within the established. The need for augmentation portion of the ruleset was met. For proposed rule, the scale of the maps we is questionable if the fish are example, the San Pedro is listed in prepared under the parameters for established, and if they are not Table 6 as a ‘‘1a’’ stream, and from the publication within the Code of Federal surviving, it needs to be analyzed in this ruleset, this indicates that this stream Regulations may not reflect the document so as to better determine was occupied at listing, and has exclusion of such developed lands. whether the PFBs at this location are sufficient PBFs to support life-history However, any such lands inadvertently accurately analyzed. This information is functions essential for the conservation left inside critical habitat boundaries critical to making the designation of of the species. The PBFs present in any shown on the maps of this final rule are critical habitat.

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Our Response: Information is Our Response: Throughout the range Spikedace and loach minnows do not provided in the rule regarding the of spikedace and loach minnow, need large woody debris. translocation and reintroduction efforts, numerous diversion structures are Our Response: We note that large monitoring, and augmentation. Please present, including in systems such as wood is an important factor to analyze see comment 18 regarding the the Gila River, Blue River, and Verde in assessing riparian ecosystem health; appropriateness of including River. These areas continue to divert however, we are not aware of any data reintroduction and translocation sites water, and fish continue to persist, at this time that illustrates what amount within the critical habitat designation. indicating that such diversions can take of large woody debris within a system (108) Comments: We received several place. We anticipate that, should any would constitute ideal conditions for comments regarding the adequacy of the new diversions be constructed, they spikedace and loach minnow. Should information cited in discussions on would operate in a similar fashion. such information be developed in the livestock grazing. Some commenters (110) Comment: One commenter future, it would be another useful factor also indicated that we should be using suggested that we discuss the pending in evaluating river system health and Minckley (In Stromberg and Tellman decisions associated with the New habitat suitability for spikedace and 2009) regarding the discussion on Mexico Interstate Stream Commission’s loach minnow. However, we are livestock grazing, and that the citations (SC) approval of 21 projects on the Gila removing this language from the draft used were either dated or focused on River that could qualify to become part environmental assessment at this time. salmonid species. of the New Mexico Unit of the CAP (112) Comment: The proposed loach minnow critical habitat in Apache Our Response: Minckley (In approved in the AWSA. County is made up of reaches of the East Stromberg and Tellman 2009) did not Our Response: The AWSA provides Fork of the Black River. The entire East focus on grazing. Minckley does for New Mexico water users to deplete Fork of the Black River and the upland indicate that threats from nonnative fish 140,000 acre-feet of additional water watershed was burnt in the recent are the primary concern for native fish, from the Gila Basin in any 10-year Wallow Fire. The effects of the Wallow which the Service acknowledges. period. The settlement also provides the Fire will adversely impact any existing However, we complete a five-factor ability to divert that water without loach minnow populations and greatly analysis, looking at all potential complaint from downstream pre-1968 alter the habitat for this fish as concerns. With respect to literature by water rights in Arizona. New Mexico sediments are washed into the Black Rinne, we have reviewed this will receive $66 million to $128 million River following the fire. There is a high information and are familiar with the in non reimbursable Federal funding. probability that the reaches of the Black position that Rinne has taken regarding The ISC Funds may be used to cover River in Apache County, which are grazing and its benefits to native fishes. costs of an actual water supply project, being proposed for loach minnow Resource management agencies planning, environmental mitigation, or critical habitat, will no longer support continue to cite Platts 1990, which restoration activities associated with or the species and remain uninhabitable by focuses not on salmonids, but the effects necessary for the project, and may be loach minnow for a considerable length of grazing on stream habitats (See used on 1 or more of 21 alternative of time. The Apache County Board of Cowley 2002, Guidelines for projects ranging from Gila National Supervisors feels the Service should Establishing Allowable Levels of Forest San Francisco River Diversion/ reconsider their decision to propose the Streambank Alteration, Howery et al. Ditch improvements to a regional water reaches of the Black River in Apache 2000, A Summary of Livestock Grazing supply project (the Deming Diversion County as loach minnow critical habitat Systems Used on Rangelands in the Project). It is not known how the funds until it can be determined that these Western United States and Canada, or will be spent, or which potential reaches of stream contain any of the the USFS Web site at www.fs.fed.us/r5/ alternative(s) may be chosen. In PBFs of the loach minnow. The snfpa/final-seis/biological-documents, addition, the AWSA mandates that the management required in order to again which all continue to cite Platts 1990). ISC make the final determination of support the loach minnow in the Black (109) Comment: Item Number 7 in the contracts for water and allocation of River may well be beyond what can be Service’s October 27, 2010, Question funding and provide notice to the reasonably accomplished under a and Answer document reads: ‘‘What Secretary of the Interior by December critical habitat designation. sort of actions would continue to be 31, 2014. New Mexico ISC must make Our Response: Portions of Units Two allowed within areas designated as any final determination during an open, (Black River Complex) and Seven (Blue critical habitat? The Service’s response public meeting, and only after River Complex) of the critical habitat to the question was, in part, ‘‘We consultation with the Gila San designation fall within the Wallow Fire believe, based on best available Francisco Water Commission, the perimeter. While all of Unit Two is information, that the following actions citizens of southwestern New Mexico, within the Wallow Fire burn perimeter, will not result in a violation of the ESA: and other affected interests. Due to the most of the area designated as critical Release, diversion, or withdrawal of timeline associated with this project, as habitat falls within areas that water from or near spikedace or loach well as the uncertainties in how funding experienced either no or low burn minnow habitat in a manner that (1) will be spent, and which potential severity. The North Fork East Fork Black DOES NOT displace or result in alternative or alternatives will be River falls within an unburned area desiccation or death of eggs, larvae, or chosen, The Service is unable to inside the perimeter of the fire, as does adults, (2) DOES NOT result in determine the outcome of this process at most of Boneyard Creek. The majority of disruption of perennial flows, (3) DOES this time. East Fork Black River falls within an NOT disrupt spawning activities * * * (111) Comment: The draft area that experienced low burn severity, and (4) DOES NOT alter vegetation environmental assessment states that but does cross a few areas that were (emphasis added).’’ How does anyone quality fish habitat is intrinsically either unburned or burned at moderate divert or withdraw water from the Gila linked to the quality of the existing burn severity. Coyote Creek is in an area River where fish are or may be present, adjacent upland habitat that provides almost entirely burned at low severity. without violating one or more of the key habitat components (e.g., large Within Unit 7, the majority of Campbell ‘‘DOES NOTS’’ listed? woody debris) crucial for fish species. Blue Creek is within unburned or low

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burn severity areas; however, eliminated, there is still a discussion on (115) Comment: We urge the Service approximately 2.4 km (1.5 mi) of the the types of impacts that can occur. to reevaluate the proposed 300-foot upper end of Campbell Blue Creek is (114) Comment: We strongly support riparian strips and to consider them within moderate and high burn severity. additional mileage and acreage of only as a minimum with wider riparian The Wallow Fire stopped just west of designated critical habitat for proposed buffers required for larger stream the Blue River, but came within endangered spikedace and loach reaches like the mainstem San Francisco approximately 0.3 km (0.2 mi) of the minnow, but oppose the omission of River and Gila River. A similar River. much of the historic, unoccupied approach is incorporated in the The impacts from fire on fish and habitats necessary for not only the PACFISH/INFISH extant consultations their habitat are described in greater conservation, but the successful full in the interior Pacific Northwest, like detail within the discussion of threats. recovery at a natural rate, without the Land and Resource Management While the fire itself may not have retardation, of these imperiled Plans Biological Opinion, which the reached high severity in proximity to Southwestern cyprinids, and the Service issued for bull trout and other the areas designated as critical habitat, eventual delisting of these species from native fishes and the National Marine the following ash and sediment that can the Act. While the Service proposes Fisheries Service issued for ESA-listed be displaced from within the watershed occupied habitat of an additional 14.2 anadromous salmonids. In these into the streams is of primary concern. miles of the San Francisco River and consultations and agreements, while the During the monsoon, which began 19.5 miles of Bear Creek in New Mexico minimum standard for a Riparian before the fire was extinguished, ash for the proposed endangered loach Conservation Area or Riparian Habitat and sediment entered Campbell Blue minnow critical habitat designations, it Conservation Area (RHCA) is set, there Creek and the Blue River. In the Blue freely admits in the Federal Register are additional science-based criteria for River, ash and sediment travelled as far Notice (at page 61332) to the fatal increasing the area or breadth of the downstream as the San Francisco River, omission of stream reaches that connect designated critical habitat surrounding resulting in fish kills (Blasius, 2011, occupied habitat for both imperiled critical stream reaches based on the pers. comm.). Fish surveys completed cyprinids. We strongly disagree with the stream order or size of the reach, and during the fall of 2011 found reduced Service proposed critical habitat how the riparian ecosystems actually numbers of loach minnow (Adelsberger designation rule for omitting connecting function. For an example, you should et al. 2011, p. 1). It is important to note reaches that would allow genetic examine the designated critical habitat however, that these areas, while exchanges between dwindling rule for the threatened Snake River temporarily affected by the ash and populations and pockets of individual spring/summer Chinook salmon. In that sediment resulting from the fire, are not spikedace and loach minnows—which Designated Critical Habitat Final Rule, permanently altered. We anticipate that do not constitute viable, sustainable smaller tributaries are protected with they will continue to support loach populations—as well as other historic the minimum RHCA, while larger rivers minnow, albeit at reduced levels, and unoccupied habitats that may be crucial like the Salmon River or Snake River, that, given sufficient time, they will for the survival and full recovery of the maintain much broader RHCAs to recover sufficiently to provide habitat two fishes. This blatant oversight conserve ecological functionality of the for loach minnow in Unit 2 and both ignores the basic precepts of modern designated critical habitats and help spikedace and loach minnow in Unit 7. conservation biology and the accepted ensure to maintain sustainable, viable (113) Comment: More than a century science of conservation genetics needed populations and Distinct Population of stream and riparian habitat abuses to sustain viable populations of rare and Segments or Evolutionarily Significant does not indicate some happy declining species like the spikedace and Units (or ‘‘species’’ under the Act). coexistence between the livestock loach minnow. industry and conserving and recovering Our Response: As noted in the NOA Our Response: As stated in the 2007 these two imperiled cyprinids that are (76 FR 61330), we were unable to Federal Register notice designating facing extinctions largely from habitat identify additional areas within the critical habitat, we selected the 300-foot alterations and fragmentation. There are historical range of the species that lateral extent, rather than some other clear and serious conflicts between currently have sufficient habitat delineation, for three reasons: (1) The domestic livestock grazing and parameters to serve as connective biological integrity and natural conserving and fully recovering corridors between occupied and dynamics of the river system are endangered spikedace and loach unoccupied habitat. As also stated in maintained within this area (i.e., the minnows throughout their historic the NOA, we believe that both loach floodplain and its riparian vegetation ranges in the Gila River Basin of minnow and spikedace conservation provide space for natural flooding Arizona, New Mexico, and Northern will require genetic exchange between patterns and latitude for necessary Mexico. the remaining populations to allow for natural channel adjustments to maintain Our Response: As noted in the threats genetic variation, which is important for appropriate channel morphology and analysis within the document, the species’ fitness and adaptive capability. geometry, store water for slow release to Service recognizes that there are Our inability to identify unoccupied maintain base flows, provide protected impacts from livestock grazing on streams that would provide connections side channels and other protected areas, riparian and stream systems and the between occupied areas is a result of the and allow the river to meander within species that depend on them. As also highly degraded condition of its main channel in response to large noted in the threats analysis, we believe unoccupied habitat and the uncertainty flow events); (2) conservation of the that progress has been made with of stream corridor restoration potential. adjacent riparian area also helps provide grazing management, but that legacy We anticipate that we will further nutrient recharge and protection from effects of past improper livestock address the issue of restoration of sediment and pollutants; and (3) grazing persist. At this time, we believe genetic exchange in our revised vegetated lateral zones are widely that progress has been made within the Recovery Plan. A Spikedace and Loach recognized as providing a variety of range of spikedace and loach minnow. Minnow Recovery Team has been aquatic habitat functions and values However, because not all conflicts formed, and will be meeting in early (e.g., aquatic habitat for fish and other between grazing and fish have been 2012. aquatic organisms, moderation of water

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temperature changes, and detritus for habitats, but also can result in upstream immediate area involved in the action, aquatic food webs) and help improve or bank sloughing, riparian vegetation as defined in 50 CFR 402.02. maintain local water quality (see U.S. collapse, alluvial water declines, stream (119) Comment: In the arid West, Army Corps of Engineers’ final notice channel straightening, steepening, and including in the Gila River of Arizona concerning Issuance and Modification water velocity increase. These actions and New Mexico, as well as Northern of Nationwide Permits, March 9, 2000, just feed the cycle and accelerate the Mexico, water diversions and artificial 65 FR 12818–12899). habitat destabilization and degradation, impoundments are prized for (116) Comment: We urge the Service to the detriment of the dependent fish agricultural production, livestock to expand the proposed critical habitat populations like spikedace and loach watering, and domestic water supplies. designation rules to encompass minnows in the Gila River Basin of Often, the diversion structures are not upstream stream reaches and riparian Arizona, New Mexico, and Northern properly screened or designed to habitats, whether they are occupied, Mexico. prevent impingement (i.e., fish get stuck historic but currently unoccupied, or Our Response: The Service is aware of on the screens or filters, if there are any, even historically unoccupied stream/ the information provided in Rosgen’s or entrainment such that fish get caught riparian reaches that are upstream of book titled Applied River Morphology, in water conveyance pipes and ditches designated critical habitats and/or which is, in fact, cited within the rule. and may end up stranded in dewatered spikedace and/or loach minnows. As a Under section 7 of the Act, the Service structures), allow fish passage upstream broadly accepted scientific principle evaluates impacts to the species and and downstream, or completely dewater that is at the heart of watershed science, their habitat and ecological needs based occupied reaches of stream or hydrology, and stream ecology, what on the best information available, disconnect isolated populations. The happens upstream in a watershed, regardless of where those impacts Service must ensure that Federally including adverse effects like originate. funded, permitted, and/or designed dewatering, accelerated bank and (118) Comment: The Service should water diversion works are not lethally or upland erosion, and subsequent be conducting section 7 consultations non lethally taking listed spikedace and loach minnow in the Gila River Basin. increases in siltation and turbidity of with the USFS, BLM, Bureau of Indian streams like that associated with Additionally, we expect the Service to Affairs, and others to conserve and domestic livestock grazing, logging, road enforce the Act and fully prosecute recover endangered spikedace and loach encroachment, and poorly regulated off- water users taking spikedace and loach minnow populations, prevent non road vehicle use, has significant adverse minnow without exemptions under a exempted section 9 take of individual effects downstream on listed fishes and/ biologically sound and legal incidental fishes, prevent the adverse modification or their designated critical habitats. take statement or habitat conservation of designated critical habitats, and Our Response: Some areas have been plan under section 10 of the Act. expanded as described in the notice of closely examine if proposed Federal Our Response: Section 9 of the Act availability and in this document; other actions may retard the natural rates of prohibits actions including, but are not areas have been reduced. Federal recovery of these two Southwestern limited to, take (i.e., harass, harm, actions that may affect critical habitat cyprinids. These consultations should pursue, hunt, shoot, wound, kill, trap, will be evaluated under section 7 of the occur in upland, riparian, and aquatic capture, or collect, or attempt to engage Act, regardless of in which portion of ecosystems in the Gila River Basin, in such activity) for all listed species. the watershed those actions occur. whether the Federal actions are within (120) Comment: While we recognize (117) Comment: While it is not as occupied or unoccupied designated that the Service views western water intuitive to consider upstream reaches critical habitat or they are upstream of law and individual water rights as a and watersheds as part of the designated them. We remind the Service that it can states issue, the Federal government critical habitats and section 7 expand the action areas presented to it does have some significant influence on consultations, the Service also needs to in an action agency’s biological modifying the diversion, conveyance, include downstream reaches if the goal assessment and as such, section 7 storage, and use of western waters is conservation, and full recovery consultations are not restricted to the diverted from watersheds like the Gila without retardation of the natural rates. footprint of the proposed project or River Basin, including through section 7 As explained eloquently by Dave action or even to the property consultations with Federal action Rosgen in his 1996 book, Applied River boundaries of lands managed by a agencies that are permitting, designing Morphology, by other stream Federal agency like the USFS, BLM, or or funding such activities, whether they hydrologists and watershed scientists, the Service. Likewise, the Service, are on Federal public, military and from our extensive experiences according to its own Section 7 reservations, tribal lands, or state or examining stream channel alterations Consultation Handbook, is not private lands. For example, many across the West caused by domestic restrained by the action agency’s effects diversions originate on Federal lands livestock grazing, restrictive culverts, determinations and in meeting the spirit managed by the USFS or BLM and and other habitat threats, what happens and intent of the Act, should always err include conveyances and rights-of-way downstream can certainly affect towards the conservation of listed that cross public lands or are used, as upstream reaches in stream and riparian species and their protected habitats, in the case of livestock water, in ecosystems, particularly in the Arid especially endangered species, which by troughs, tanks, and artificial ponds, West. Fluvial morphological actions like their nature, are facing potential actually on Federal lands. There is downcutting, headcutting, stream extinctions, by replacing the precedent for having Federal action widening, stream channel filling with determinations with their own, stricter agencies like the USFS condition how increased sediment loads, and the effects determinations for species, water is diverted and conveyed across simplification of stream channel designated critical habitats, and Federal lands even if the water rights morphology with the accompanying recoveries. are held by private or corporate entities. disconnection of impacted streams with Our Response: We agree that the For example, the Salmon-Challis their natural floodplains, not only ‘‘action area’’ of a project refers to all National Forest and Sawtooth National adversely affects the impacted reaches areas to be affected directly or indirectly Forest in Idaho have entered into a legal and downstream riparian and stream by the Federal action and not merely the settlement agreement with Western

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Watershed Project to condition should be considered and, if continued, (126) Comment: The use of only one diversions and conveyances in the be subject to section 7 consultations to PBF in determining suitability is Salmon River Basin to the benefit of protect spikedace and loach minnow inadequate. If an area cannot support a listed anadromous salmonids and bull and their designated critical habitats. viable population, then by definition it trout. The USFS has also executed a Our Response: Federal funding of the cannot be critical habitat. programmatic biological assessment for Urban Stocking Program in Arizona was Our Response: In accordance with lockable head gates, measuring devices, completed in 2011. The consultation section 3(5)(A)(i) and 4(b)(1)(A) of the and fish screens and has completed resulted in a Statewide conservation Act and regulations at 50 CFR 453.12, in formal consultation with the Service program for native fishes while determining which areas within the and National Marine Fisheries Service. continuing sport fish stocking and geographical area occupied at the time We strongly encourage the Service to management in designated streams. of listing to designate as critical habitat, lead the way with a similar effort in the (123) Comment: The Service should we consider the physical and biological water-limited Gila River Basin with its be carefully assessing the environmental features essential to the conservation of BLM, USFS, military and tribal risks to individuals and critical habitats the species and which may require consultation problems. of spikedace and loach minnow with special management considerations or Our Response: A recovery team is the types, amounts, seasons, and protection. In our final critical habitat being established to develop on-the- methods of chemical control of pests designations, we did not include any ground strategies to conserve these two and weeds. In the case of the USFS, occupied areas that contained only one species. BLM, Bureau of Indian Affairs, military, PBF. All of the areas occupied at the (121) Comment: It is alarming to note and the Service’s wildlife refuges, time of listing for both species, or each how the Service has carefully dissected environmental risk analyses scaled individual species, contain more than the occupied and historic unoccupied down for endangered fishes to the No one PBF, as described in the unit reaches of the loach minnow and Observed Effects Levels (‘‘NOELs’’) are descriptions. spikedace in their proposed critical (127) Comment: Please explain why necessary as are consultations and new habitat rule just to avoid existing water the word ‘‘only’’ is in the phrase ‘‘* * * labeling that restricts the uses of diversion structures. This be included only if those features may accepted chemicals and surfactants (and ‘‘gerrymandering’’ of the proposed require special management other carriers and adjutants) to protect riparian and stream reaches goes well considerations or protection.’’ The word spikedace and loach minnows. Special beyond the precepts of broadly accepted ‘‘only’’ is not in section 3 of the Act (see care is needed within the 300 ± ft conservation biology and should be page 66496, 1st column, item (II). It riparian buffers, but effectiveness and eliminated from the Final Rule. appears that this proposed rule is trying Our Response: We acknowledge the implementation monitoring as well as to narrow the scope of what can be absence of connective corridors in the water quality testing is needed to included in critical habitat (i.e., make proposed designation. We continue to prevent unwanted extirpations or even policy). believe that both loach minnow and extinctions. Our Response: We agree with the spikedace conservation will require Our Response: The Service has a long commenter that the language in the genetic exchange between the remaining history of conducting section 7 proposed rule was incorrect. We have populations. However, the designation consultations on a wide variety of inserted the following language in the was not developed with existing water pesticide and herbicide treatments, final rule: ‘‘For inclusion in a critical diversion structures as a focal point. weed control, and related topics. habitat designation, the habitat within Instead, we developed a ruleset, which (124) Comment: Simply adding some the geographical area occupied by the was applied across the historical ranges 34 miles of streams to the designated species at the time it was listed must of the two species. Many of the stream critical habitats is insufficient when contain physical and biological features segments included, such as the Verde some 80 to 90 percent of the historical which are essential to the conservation River, Blue River, Eagle Creek, and Gila range is adversely modified and/or of the species and which may require River, have existing diversion structures vacant. These meager actions on behalf special management considerations or within the designated area. of spikedace and loach minnow will not protection.’’ (122) Comment: Endangered species stem the slippery slope towards (128) Comment: The Service received should not be subject to section 4 extinctions for these native desert several requests for an extension of the permits with States like Arizona and stream fishes, especially with a comment period. New Mexico and the tribal governments significant portion of the two species’ Our Response: We believe the two for angling, fish stocking, and possibly ranges altered or vacated. comment periods allowed for adequate stock assessments and research/ Our Response: We are not certain opportunity for public comment. A total experiments. The Service has expressed where the figure of 34 additional miles of 90 days was provided for document that endangered spikedace and loach came from in this comment. With this review and the public to submit minnow face real threats from designation, we are increasing the comments. In addition, a public hearing predation, competition, and overall mileage by 305 km (188 mi), was scheduled on October 17, 2011, as transmission of disease and parasites by compared to the 2007 designation. another venue for comment submission. nonnative species, some of which are (129) Comment: The Nation supports General Comments Issue 2: Legal or managed by fish and game agencies as the Service’s proposal to exclude those Policy Concerns game or sport fishes. In most cases, lands located within the exterior through Dingell-Johnson Federal funds (125) Comment: The Service needs to boundaries of the Yavapai-Apache administered by the Service, states like complete a regulatory flexibility Reservation from the final critical Arizona and New Mexico operate sport analysis. habitat designation under section 4(b)(2) fisheries including stocking of Our Response: Compliance with the of the Act, as the benefit of such nonnative predators, lethal and Regulatory Flexibility Act is part of this exclusion outweighs the benefits of nonlethal take associated with angling, final rule, and can be found under the designating these lands as critical fisheries inventories and research, and subheading of ‘‘Regulatory Flexibility habitat, and such exclusion will not hatchery programs. These actions Act (5 U.S.C. 601 et seq.)’’. result in the extinction of the species.

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Our Response: Within the proposed Our Response: While actions taken exclusion outweigh the benefits of rule, we identified areas that we would under the CAP Fund Transfer Program inclusion. In the case of a management consider for exclusion, including those do benefit spikedace and loach minnow, plan that details conservation measures, of the Yavapai-Apache Reservation. these are projects that are largely the Service would consider Please see the Exclusions section for the derived from the section 7 process. conservation measures sufficient if they analysis on the benefits of inclusion and While ideally, recovery actions and would lead to conservation that meets exclusion for this area. critical habitat designation support one or exceeds what we would anticipate (130) Comment: There were several another to achieve recovery and occurring through designation of critical comments regarding the proposed delisting of the species, critical habitat habitat. exclusions in the proposed rule and that designation is independent of these (135) Comment: An issue was raised our rationale was not clear in types of management actions. Had the regarding large floods in the streams determining which areas were proposed Bureau of Reclamation and the Service proposed for critical habitat and if the for exclusion. FWS should provide decided for example, not to complete designation would make it more support for all exclusion recovery actions on Bonita Creek or Hot difficult to complete repair work since determinations. Springs Canyon with barrier some funding will be from Federal Our Response: We may exclude an construction and translocations of the agencies. area from designated critical habitat two species, we would still be Our Response: Flooding, along with based on economic impacts, impacts on designating critical habitat. These other activities, often does involve a national security, or any other relevant actions are therefore independent of one Federal nexus that might trigger a impacts. In addition, we can consider another and require separate NEPA section 7 consultation. Should flooding exclusion of areas covered by other analysis. occur, Federal assistance may be used management plans or agreements such (133) Comment: The way the Service through programs such as the Natural as habitat conservation plans which implements consultations, the Resource Conservation Service’s provide equal or better protection than designation of critical habitat does Emergency Watershed Protection would be gained from a critical habitat impose universal rules and restrictions Program, which has been used in the designation. In considering whether to on land use. It does automatically past to provide assistance to landowners exclude a particular area from the trigger consultation with Service for in protecting their property from flood designation, we must identify the modifications and results in prohibiting damage. The Service has established benefits of including the area in the and altering certain land uses and water emergency consultation procedures that designation, identify the benefits of development activities. An example is allow for this type of Federal action to excluding the area from the designation, the Upper San Pedro River where the move forward quickly, with emphasis and determine whether the benefits of habitat is unoccupied. With designated on protection of human life and exclusion outweigh the benefits of critical habitat there is a universal rule property. inclusion. See the discussion in the and restriction that any activity within (136) Comment: The designation of exclusions section of the final rule for 300 feet of the river cannot adversely critical habitat for these species is an further details. modify critical habitat. This attempt by the Service to gain additional (131) Comment: Fort Huachuca is automatically prohibits a land owner control over the use of public and requesting that a national security from creating a tilapia farm, alfalfa farm, private land and resources. analysis in compliance with section alpaca ranch, livestock corral or Our Response: Critical habitat 4(b)(2) be performed in consultation otherwise lawful activity within 300 feet identifies geographic areas that contain with the fort. In addition, the fort would of the river. This is a universal blanket features essential for the conservation of like to continue dialogue beyond rule in critical habitat. To state a threatened or endangered species and November 3, 2011, on the issues that otherwise is disingenuous. that may require special management have been raised in both letters Our Response: It should be noted that considerations. The designation of regarding the national security impacts adverse modification is rarely reached. critical habitat does not affect land and the lack of justification for critical Designation of critical habitat does not ownership or establish a refuge, habitat designation in Unit 3. prohibit projects, but should an action wilderness, reserve, preserve, or other Our Response: We conducted an be proposed, permitted, or funded by a conservation area. Critical habitat exclusion analysis based on a comment Federal agency, section 7 consultation designation does not impose restrictions in which national security issues were may be required. The purpose of section on private lands unless Federal funds, raised by Fort Huachuca following 7 consultation is to provide permits or activities are involved. closure of the second comment period. minimization measures that reduce the Federal agencies that undertake, fund, In this final rule, the San Pedro River impacts to listed species or their critical or permit activities that may affect has been excluded from the designation habitat. There are no automatic critical habitat are required to consult because the benefits of exclusion prohibitions to activities under the ESA. with the Service to ensure that such outweigh the benefits of inclusion based (134) Comment: The term ‘‘sufficient actions do not adversely modify or on potential impacts to national conservation measures’’ is used three destroy designated critical habitat. security. Refer to the discussion in the times in the Environmental Assessment. Requirements for consultation on Exclusions section for further details. The subsequent EIS needs to detail the critical habitat do not apply to entirely (132) Comment: The Service is not measures deemed sufficient so that the private actions on private lands. Critical following their own regulations, policies costs and benefits of excluding areas habitat designations apply only to and guidelines by allowing a long list of due to economic, national security, and Federal lands, or federally funded or major Federal actions, such as fish other needs can be assessed. permitted activities on non federal recovery projects carried out under the Our Response: Please see the lands. Activities on private or State Central Arizona Project (CAP) Biological Exclusions section of this document, lands that are funded, permitted, or Opinion, and the proposed spikedace which describes the process that the carried out by a Federal agency, such as and loach minnow critical habitat Service uses to determine if exclusions a permit from the U.S. Army Corps of designation, to occur without NEPA are warranted. Generally, the process Engineers under section 404 of the analysis. weighs whether the benefits of Clean Water Act, will be subject to the

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section 7 consultation process with the provided by the Ninth Circuit Court. Our Response: Reinitiation of Service if those actions may affect Formal consultation under section 7 of consultation is required if a new species critical habitat or a listed species. the Act concludes with a biological or critical habitat designation may be (137) Comment: One commenter opinion issued by the Service on affected by an identified Federal action. noted that the development of whether the proposed Federal action is Any consultations for projects that are conservation agreements with agencies likely to jeopardize the continued within the proposed critical habitat and private landowners to gain similar existence of a listed species or to designation may need to be reinitiated protection to that afforded by destroy or adversely modify critical to evaluate impacts on the critical designation of critical habitat would habitat (50 CFR 402.14[h]). In 2004, the habitat. However, it should be noted preclude the need to designate critical Ninth Circuit Court determined through that the 2007 critical habitat designation habitat but that, as no such efforts were Gifford Pinchot Task Force et al. v. remains in place until the 2012 under way across the species’ range United States Fish and Wildlife Service designation is published, and many during the 2010 proposed rule (2004) that, while the jeopardy standard projects went through consultation development, the Service rejected an concerns the survival of a species or its under the 2007 designation. For projects alternative to accept conservation risk of extinction, the adverse that have been developed in the interim, agreements in lieu of critical habitat modification standard concerns the preliminary consultation is under way designation. The commenter noted that value of critical habitat for the recovery, in many areas. conservation agreements would allow or eventual delisting, of a species. As (140) Comment: It is our the Service to save money by putting a pointed out in the Ninth Circuit understanding that FMC has not large part of the conservation burden on decision, survival of a species and submitted a draft management plan for agencies and landowners, and that it recovery (or conservation) of a species spikedace and loach minnow may have been premature for the are distinct concepts in the ESA. conservation on reaches of the San Service to reject this alternative. There Implementation of the two standards, Francisco and Gila Rivers and Eagle may be potential for better results than therefore, involves separate and distinct Creek. Without management plans, through designation. Specifically, the analyses based on these concepts. FMC’s contention that these stream AWSA offers opportunity to easily In light of the Gifford Pinchot reaches and their spikedace and loach improve habitat for the loach minnow decision, the Service no longer relies on minnow populations do not require and spikedace. the regulatory definition of ‘‘destruction special management is invalid. If FMC Our Response: We agree that the use or adverse modification’’ of critical does submit management plans in of conservation agreements may, in habitat at 50 CFR 402.02. Instead, the support of a request for exclusion of some instances, provide a conservation Service relies on the statutory their lands from the critical habitat, benefit equal to or greater than the please send us copies for our designation of critical habitat. However, provisions of the ESA to complete the information and review. at the time that the critical habitat analysis with respect to critical habitat. designation was proposed and The potential for destruction or adverse Our Response: Freeport-McMoRan subsequently finalized, no such modification of critical habitat by a developed two management plans. One conservation agreements were under Federal action is assessed under the plan addressees Eagle Creek and the San way or in place. The Service has a court- statutory provisions of the ESA by Francisco River in Arizona, while the determined deadline for designation of determining whether the effects of the other addresses the Gila River, Bear critical habitat. While we considered implementation of the proposed Federal Creek, and Mangas Creek in New those conservation agreements that are action would allow the affected critical Mexico. A description of the under way, we are not able to delay the habitat to remain functional (or retain management plans and our decision designation of critical habitat until such those PBFs that relate to the ability of regarding exclusions can be found in the agreements are developed, and we are the area to periodically support the ‘‘Exclusions’’ section of the final rule. not able to exclude areas from critical species) to serve its intended The management plans themselves are habitat based on conservation conservation role for the species (75 FR available on http://www.regulations.gov agreements that might be developed in 66519). This analysis provides the basis for public viewing. the future. for determining the significance of (141) Comment: An earlier (138) Comment: In the past the anticipated effects of the proposed management plan by Phelps-Dodge Service has published information federal action on critical habitat. The (acquired by FMC) used to support the which states that designation of critical threshold for destruction or adverse exclusion of their lands along the upper habitat provides little additional modification is evaluated in the context Gila River in the 2007 final critical protection to species (69 FR 53182). The of whether the critical habitat would habitat rule was vague and completely information states that in 30 years of remain functional to serve the intended inadequate. It was primarily a study implementing the Act, the Service has conservation role for the species. The plan for the USFS’s Rocky Mountain found that the designation of statutory direction provided by the Ninth Circuit Research Station. This study plan critical habitat provides little additional Decision in Gifford Pinchot has changed received strong criticism from within protection to most listed species, while the way the Service is analyzing the the USFS and those comments were consuming significant amounts of value of critical habitat. made available to the Service. We available conservation resources. (139) Comment: Under Section 7 ESA submitted a critical review of the Additionally, we have also found that consultations, FWS should urge the Phelps-Dodge/Rocky Mountain comparable conservation can be reinitiation of extant consultations, Research Station management/study achieved by implementation of laws and including programmatic consultations, plan in a letter of October 14, 2006, to regulations obviating the need for with the uplisted statuses of spikedace the Service. In our letter we also critical habitat. This statement supports and loach minnow in mind as well as commented on the inadequacy of a the preparation of an EIS. the expanded designated critical similarly vague and insubstantial Our Response: The Service has habitats. This includes the 18 BLM Phelps-Dodge management plan for changed how it evaluates the value of domestic livestock grazing allotments in Eagle Creek. Neither of these two critical habitat due to guidance the mid-Gila River Basin. defective plans should be considered in

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this revision of the critical habitat, both of critical habitat on its lands Management Plans and Resource are inadequate and out-of-date. improperly infringes upon its Tribal Management Plans do not guarantee the Our Response: Freeport-McMoRan sovereignty and the right to self- necessary protections and recovery provided updated management plans government. In recognition of the under the Act for these two imperiled during the second comment period. The Nation’s sovereignty, our working fish species. In fact, our field and legal revised plans provide for the relationship with the Tribe, and the work have proven how weak the paper commitment of significant additional management efforts taken by the promises are and how important resources for construction of barriers to Yavapai-Apache Nation on their tribal enforcement of the Act and legal actions limit movement of nonnative fish into lands that benefit spikedace and loach are for just conserving what remains of spikedace and loach minnow habitat, minnow, all proposed critical habitat the 10 to 20 percent of the occupied monitoring, and other conservation has been removed from the final rule. habitats for the two cyprinids in the actions. lands. By eliminating those from the General Comments Issue 3: Economic (142) Comment: In April 2007 the final critical habitat rules, the Service Analysis Concerns Service informed us they do not believe will undermine the conservation and the 2003 Policy for Evaluation of (144) Comment: There were several recovery without retardation of the Conservation Efforts When Making comments concerning the effects of the natural rates of loach minnow and Listing Decisions (PECE) applies to critical habitat designation on the spikedace. critical habitat designations and so will operation of Ft. Huachuca, especially Our Response: At this time, we are not conform to it when assessing the the economic costs and cumulative not excluding Federal lands from the quality and sustainability of effects. designation of spikedace and loach management plans submitted in seeking Our Response: The economic effects minnow critical habitat and are not critical habitat exclusions. The PECE is were analyzed in the draft economic including any Land and Resource a strong and well constructed policy for analysis, however, the San Pedro River Management Plans or Resource assessing the value to species from has been excluded based on national Management Plans as the means for any proposed private conservation efforts, security issues related to the operation exclusions. Our rationale for excluding and regardless of whether or not it can of Ft. Huachuca. See our discussion in tribal and military lands are provided be legally required, we urge the Service the Exclusion section of this text. within the Exclusions section of this to use PECE in its analysis of (145) Comment: The cumulative rule. management or conservation plans impact of the endangered species (147) Comment: The Communities submitted in support of requested program combined with critical habitat have existing rights to groundwater and exclusions from critical habitat designations in Arizona and New surface water within the Upper Verde designation for spikedace and loach Mexico over the last 9 years has been River Watershed. Additionally, the minnow. An analysis using PECE severe. More than a one-third reduction Communities have invested in the guidelines, and made available to the in the number of USFS permittees and development of additional water rights public, would be a worthwhile and a 33.8 percent reduction in the number owned by the City of Prescott in the informative method for documenting of animal unit months occurred (AUMs) City’s Big Chino Water Ranch in order the Service’s rationale and process for in the period 2000 to 2009. This to preserve and enhance the economic critical habitat exclusion decisions. information is from the USFS, Annual viability of the region. Our Response: The PECE Policy Grazing Statistical Reports. Our Response: Section 4(b)(2) of the identifies criteria we use in determining Our Response: We agree with the Act requires the Secretary to designate whether formalized conservation efforts commenter that the comparison of 2000 critical habitat based on the best that have yet to be implemented or to (USDA 2000, p. 31) to 2009 (USDA scientific data available after taking into show effectiveness contribute to making 2011, p. 33–34) data indicates an overall consideration the economic impact, and listing a species as threatened or reduction in the number of permittees, any other relevant impact, of specifying endangered unnecessary. We believe head months (HMs), and animal unit any particular area as critical habitat. that a recovery plan is the appropriate months. However, these documents (148) Comment: Participation in the vehicle to provide guidance on actions report the figures cited in the comment, National Resource Conservation Service necessary to delist a species. without stating any conclusions as to (NRCS) program may be impacted by (143) Comment: For the reasons set the cause of the decline between 2000 the critical habitat designation due to forth here and as explained in (a) prior to 2009, so it would be in error to time delay impacts on NRCS activities, filings with the Service by the Nation; conclude that the cumulative impact of including those under the and (b) in face-to-face meetings and the endangered species program and Environmental Quality Incentives other communications with the Service critical habitat designations in Arizona Program (EQIP) that would require (all of which are incorporated in full and New Mexico have led to this section 7 consultation. Also, NRCS here by reference), it remains the decline. programs might be affected because Nation’s position that the Secretary of (146) Comment: We challenge the farmers could refuse federal funding to the Interior lacks legal authority to validity of the draft environmental avoid a federal nexus that would require designate critical habitat on the Nation’s assessment especially with its proposed section 7 consultation. lands. (See written comments of the exclusions of Federal lands managed by Our Response: Exhibits ES–1 and ES– Yavapai-Apache Nation, dated February agencies like the USFS or BLM, just 2 in the Economic Analysis recognize 16, 2006, February 21, 2006, February because they have paper plans in place the potential for impacts to participation 26, 2006, July 6, 2006, and December 27, that one would expect to protect in NRCS funding and programs. 2010 specifically addressing prior and designated critical habitat and promote However, considerable uncertainty current proposals by the Service to the conservation and recovery of listed exists surrounding the effect of critical designate critical habitat for the species like spikedace and loach habitat designation on the level of spikedace and loach minnow on the minnow that are facing potential participation in the NRCS and other Yavapai-Apache Reservation.) extinctions. Using the grazing allotment Federal programs. At this time, we are Our Response: We understand that it examples with which we are most unaware of any instances where critical is the Tribe’s position that a designation familiar, paper Land and Resource habitat designation has resulted in

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delays to NRCS project implementation. be feasible to monetize, or even Service believes that the direct benefits Therefore, these impacts are not quantify, the benefits of environmental of the proposed rule are best expressed quantified. Section 3.6 of the final regulations due to either an absence of in biological terms that can be weighed economic analysis does, however, defensible, relevant studies or a lack of against the expected cost impacts of the discuss potential impacts of critical resources on the implementing agency’s rulemaking. Critical habitat designation habitat on NRCS programs in more part to conduct new research. Rather may also generate ancillary benefits. detail, including the potential for than rely on economic measures, the Critical habitat aids in the conservation reduced farmer participation in these Service believes that the direct benefits of species specifically by protecting the programs. Further, it should be noted of the proposed rule are best expressed primary constituent elements on which that the Service and NRCS completed a in biological terms that can be weighed the species depends. To this end, programmatic consultation in 2011 against the expected cost impacts of the critical habitat designation can result in which will facilitate the review of EQIP rulemaking. Critical habitat designation maintenance of particular projects. may also generate ancillary benefits. environmental conditions that may (149) Comment: The number of wells Critical habitat aids in the conservation generate other social benefits aside from in the Virden Valley area of the Gila of species specifically by protecting the the preservation of the species. That is, River is underestimated because the primary constituent elements on which management actions undertaken to analysis only considers wells within the species depends. To this end, conserve a species or habitat may have critical habitat areas. critical habitat designation can result in coincident, positive social welfare Our Response: The geographic scope maintenance of particular implications, such as increased of the final economic analysis was environmental conditions that may recreational opportunities in a region. estimated using information provided in generate other social benefits aside from While they are not the primary purpose the proposed rule, in which the Service the preservation of the species. That is, of critical habitat, these ancillary states that critical habitat designation management actions undertaken to benefits may result in gains in extends 300 feet to either side of a conserve a species or habitat may have employment, output, or income that stream’s bank full width. While it is coincident, positive social welfare may offset the direct, negative impacts certainly possible that wells outside of implications, such as increased to a region’s economy resulting from this area draw water from critical recreational opportunities in a region. actions to conserve a species or its habitat reaches, those particular wells While they are not the primary purpose habitat.’’ Section 11 qualitatively were not easily identified. It should be of critical habitat, these ancillary describes coincident benefits of the noted that because groundwater benefits may result in gains in designation on water quality, stream withdrawals frequently do not involve a employment, output, or income that flow levels, property values, and Federal nexus, groundwater issues have may offset the direct, negative impacts aesthetic and educational benefits. The rarely been addressed through section 7 to a region’s economy resulting from Service considers these benefits while consultations in the past. The analysis actions to conserve a species or its weighing the benefits of inclusion therefore reports the number of habitat.’’ Section 11 qualitatively against the benefits of exclusion before groundwater wells in proposed critical describes coincident benefits of the excluding any area from the habitat areas, but does not assign a cost designation on water quality, stream designation. associated with potential impacts to flow levels, property values, and (152) Comment: The commenter these wells. aesthetic and educational benefits. The believes that economic benefits at the (150) Comment: In the economic Service considers these benefits while local, regional, and national levels exist, analysis for the critical habitat weighing the benefits of inclusion but are not included in the draft designation, the Service uses faulty against the benefits of exclusion before Economic Analysis. logic by comparing projected dollar excluding any area from the Our Response: As stated in Section costs to the public weighed against designation. 2.3.3 of the final economic analysis, projected biological benefits of (151) Comment: Commenters ‘‘Critical habitat aids in the conservation protecting habitat for the endangered recommend that the authors of the of species specifically by protecting the species. This is performed under the spikedace and loach minnow economic primary constituent elements on which specious argument that conserving and analysis and environmental analysis the species depends. To this end, recovering endangered and threatened documents cite Dr. Rinne’s publications critical habitat designation can result in species should not be reduced to dollars that describe the increase in predatory maintenance of particular and cents. While this appears noble, it nonnative fish and the disappearance of environmental conditions that may places portions of designated critical native fish on the Verde River after generate other social benefits aside from habitat at the great risk of being removal of livestock. the preservation of the species. That is, excluded for economic reasons, even Our Response: Section 2.3.3 of the management actions undertaken to when some of the economic costs can be final economic analysis recognizes that conserve a species or habitat may have countered with local or regional ‘‘the published economics literature has coincident, positive social welfare economic benefits. The Service totally documented that social welfare benefits implications, such as increased ignores these benefits and weighs the can result from the conservation and recreational opportunities in a region. full weight of the costs for their recovery of endangered and threatened While they are not the primary purpose economic exclusion decisions. species. In its guidance for of critical habitat, these ancillary Our Response: Section 2.3.3 of the implementing Executive Order 12866, benefits may result in gains in final economic analysis recognizes that the OMB acknowledges that it may not employment, output, or income that ‘‘the published economics literature has be feasible to monetize, or even may offset the direct, negative impacts documented that social welfare benefits quantify, the benefits of environmental to a region’s economy resulting from can result from the conservation and regulations due to either an absence of actions to conserve a species or its recovery of endangered and threatened defensible, relevant studies or a lack of habitat.’’ species. In its guidance for resources on the implementing agency’s (153) Comment: Rather than applying implementing Executive Order 12866, part to conduct new research. Rather the ‘but for’ test for some of the the OMB acknowledges that it may not than rely on economic measures, the projected costs, the costs attributed to

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the designation of critical habitat for Our Response: This concern is now and above the current cost of all the spikedace and loach minnow should be reflected in Section 3 and Appendix A other management actions for independent of other costs that would of the FEA. endangered species the Fort is exist, whether there is designated (156) Comment: The NRCS agency is financing, it could be the factor that critical habitat or not for spikedace and the best agency to provide current and triggers the Fort to reduce its missions loach minnow. In other words, the accurate actual costs of conservation or close the Fort and move all the coextensive framework used in the draft practices. The Economic Analysis states missions to other locations. Economic Analysis is inappropriate. that the cost of fencing ranges from Our Response: The final economic Our Response: The estimation of $1,690 to $16,900 per river mile of fence analysis now recognizes the incremental impacts is consistent with construction. NRCS costs, which are commenters concern in Section 3.5. In direction provided by the Office of updated yearly to be as close to actual addition, please note that the San Pedro Management and Budget to Federal as possible, estimates the cost of fence River has been removed from the agencies for the estimation of the costs construction at $3.05 per foot for level designation. Additional detail is and benefits of Federal regulations (see ground to $4.30 per foot for rough provided in the ‘‘Exclusions’’ section Office of Management and Budget, county and $5.75 per foot for rough above. Circular A–4, 2003). It is also consistent county where materials must be packed (160) Comment: The commenter with several recent court decisions, in. This would make the cost of fence believes the draft Economic Analysis including Cape Hatteras Access building to range from $16,104 to fails to consider three classes of small Preservation Alliance v. U.S. $30,360. The articles by Miller 1961, entities defined by the Small Business Department of the Interior, 344 F. Supp. Platts 1990, Belsky 1999 referenced in Administration as: businesses with an 2d 108 (D.D.C.) and Center for Biological the draft Economic Analysis are not the average income under $750,000, cities Diversity v. U.S. Bureau of Land best commercially available and towns with a population under Management, 422 F. Supp. 2d 1115 information. 50,000 and local governments such as (N.D. Cal. 2006). Those decisions found Our Response: In response to two school districts. that estimation of incremental impacts public comments, the final economic Our Response: In the final economic stemming solely from the designation is analysis now incorporates updated analysis, Appendix A, Section A.1.2, proper. However, in order to address the fence construction and maintenance details the types of small entities divergent opinions of the courts and cost estimates, maintained and updated included in the analysis, and includes provide the most complete information by NRCS for 2012. In Section 4.3.1 of those categories of small entities to decision-makers, this economic the final economic analysis, fencing identified in the comment. The analysis, analysis reports both the baseline costs are estimated to range from $8,940 as described in Exhibit A–1, considers impacts of protections afforded per mile fenced to $14,500 per mile small businesses on the basis of the Risk spikedace and loach minnow absent fenced, with annual fence maintenance Management Association’s Small critical habitat designation; and the costs ranging from $179 to $725 per Business Size Standards, including, for estimated incremental impacts mile of fencing. some industries, businesses with precipitated specifically by the (157) Comment: The use of 2002 revenues under $750,000. In addition, designation of critical habitat for the census data in the draft Economic Appendix A states, ‘‘Section 601(5) of species. Summed, these two types of Analysis and the draft Environmental the Regulatory Flexibility Act defines impacts comprise the fully co-extensive Assessment is not compliant with small governmental jurisdictions as impacts of conservation in areas requirements to use the best scientific governments of cities, counties, towns, considered for critical habitat and commercial data available. The townships, villages, school districts, or designation. Economic Analysis and Environmental special districts with a population of (154) Comment: The Economic Assessment need to be updated to use less than 50,000. Special districts may Analysis and Environmental 2011 data. include those servicing irrigation, ports, Assessment should cite Dr. Rinne’s Our Response: The final economic parks and recreation, sanitation, publications that describe the increase analysis and final environmental drainage, soil and water conservation, in predatory nonnative fish and the assessment now incorporate 2010 road assessment, etc.’’ disappearance of native fish on the census data where possible throughout (161) Comment: The Economic Verde River after removal of livestock. the report to more accurately estimate Analysis needs to consider impacts to Our Response: Section 4.1 of the final the magnitude and distribution of operations falling into numerous NAICS economic analysis now recognizes that economic impacts. codes: 111940 Hay Farming; 112111 studies by J. N. Rinne have suggested (158) Comment: The draft Economic Beef Cattle Ranching and Farming; that current management has been Analysis does not consider impacts to 112112 Cattle Feedlots; 112120 Dairy successful at mitigating the negative grazing related to the necessity for water Cattle and Milk Production; 112210 Hog effects of grazing on riparian habitat, in all livestock operations. and Pig Farming; 112410 Sheep that further limitation of grazing may Our Response: As shown in Exhibit Farming; 112920 Horses and Other create conditions conducive to non- 4–3 of the final economic analysis, the Equine Production; 113110 Timber native species, and that fencing could be Service has historically recommended Tract Operations; 113210 Forest detrimental to riparian species. that off-river water systems be used to Nurseries and Gathering of Forest (155) Comment: Each addition of a supply water to cattle where possible, Products; 113310 Logging; 114210 species and/or critical habitat area takes but has not disallowed watering areas. Hunting and Trapping; 115112 Soil its toll on the economic viability of (159) Comment: The designation of Preparation, Planting, and Cultivating; ranching and this cumulative impact critical habitat for spikedace and loach 115113 Crop Harvesting, Primarily by was not discussed in the critical habitat minnow could possibly be the ‘‘final Machine; 115114 Postharvest Crop documents. A single additional straw’’ for what Department of Defense Activities (except Cotton Ginning); restriction or requirement that decreases is willing to spend on Fort Huachuca’s 115115 Farm Labor Contractors and the profitability of an operation could be support of the Act and it is significant Crew Leaders; 115116 Farm the one that causes the operator to go as a cumulative impact. If one more Management Services; 115210 Support out of business. element of critical habitat is added over Activities for Animal Production;

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115310 Support Activities for Forestry; focuses on mining activities which are or ongoing non-native fish removal etc. not located in proposed critical habitat activity on the Verde River, as noted in Our Response: Exhibit A–1 lists the areas. The potential for impacts to Exhibit 6–7, amounting to a one-time NAICS codes used to identify groundwater users is discussed cost of $150,000 to $200,000 in potentially affected small entities in the qualitatively. undiscounted dollars between 2016 and industries most likely to incur impacts (164) Comment: Because of differing 2031, with the possibility of an related to the critical habitat court rulings in the Ninth and Tenth additional one-time cost of $50,000 designation. The final economic Circuit Courts, the Service must perform (undiscounted) for follow-up activity analysis considers nine NAICS a full analysis of all of the economic over that period. However, neither the classifications in agricultural, ranching, impacts of the critical habitat designated AGFD nor the NMDGF identified non- and development sectors, including Hay in New Mexico, regardless of whether native fish removal activity as being Farming (111940) and Beef Cattle an impact is co-extensive with the planned on Eagle Creek or the lower San Ranching and Farming (112111). It is species’ listing, while for critical habitat Francisco River. not clear why the commenter expects proposed in Arizona, the Service may (167) Comment: The volumes of water impacts to the remaining sectors listed. use the baseline approach. However, the used at Morenci are so significant that (162) Comment: The commenter different approaches adopted by the two sufficient quantities of substitute water claims the economic analysis is flawed circuits are relevant only where sources may be impossible to obtain. because it failed to coordinate currently occupied areas are designated The DEA should be revised to reflect the development of the Proposed Rule as critical habitat. In the absence of costs of restricting or preventing mining changes with local government. recent records of occupancy, the area production and limiting expansion Our Response: As noted in Section should be treated as unoccupied and all capabilities. 7.3, the analytic approach to the impacts attributed to the designation. Our Response: Section 5 of the final Economic Analysis is explained. Based Our Response: As stated in Section 2 economic analysis is focused on projected growth rates, the analysis of the final economic analysis, in order exclusively on a discussion of potential identified counties that were likely to to address the divergent opinions of the impacts to the mining industry, and undergo high levels of development and courts and provide the most complete specifically focuses on facilities owned were thus most likely to incur impacts information to decision-makers, this by FMC. The discussion includes data to residential and commercial economic analysis reports both the supplied by the commenters on the development activities. Based on this baseline impacts of protections afforded scope and scale of potential impacts to process, a subset of county and local the two species absent critical habitat those operations. Information received government planning offices that were designation; and the estimated as part of the comment above provided likely to incur costs to development was incremental impacts precipitated a value of potential lost water rights and contacted. Due to time constraints, specifically by the designation of critical associated replacement costs based. every county and local government habitat for the species. When summed, could not be contacted. these two types of impacts comprise the While we do not disagree that, should (163) Comment: Appendix A fully co-extensive impacts of the water be lost to mining activities, recognizes that there will be economic conservation in areas considered for such costs could occur, there remains impacts to small entities but critical habitat designation. considerable uncertainty as to the underestimates the impacts due to the (165) Comment: The draft economic likelihood of such events. Nonetheless, omission, throughout both the draft analysis erroneously used an the final economic analysis includes Environmental Assessment and the draft incremental impact approach for critical estimates of the cost of replacing water Economic Analysis, of not taking into habitat proposed in New Mexico. sources in Section 5 of the analysis, to account the potential restrictions to Our Response: Please see the provide additional context for groundwater extraction and use in areas comment above regarding use of the understanding the potential magnitude outside the actual critical habitat incremental versus baseline approaches of impacts, should they occur. designation corridor. Similarly, the draft for critical habitat designated in New (168) Comment: The draft Economic Economic Analysis and draft Mexico. Analysis does not address the impacts Environmental Assessment generally (166) Comment: Smallmouth bass, of critical habitat on water supplies for fail to address water and land uses along with channel catfish, are the the communities of Morenci and outside the proposed critical habitat, primary sport fish in Eagle Creek, as Clifton. focusing instead on impacts occurring well as other streams proposed as Our Response: The final economic within the proposed critical habitat—a critical habitat, including the lower San analysis now acknowledges this concern corridor that extends 300 feet from each Francisco River and the Verde River and in Section 5. side of the stream edge at ‘‘bank full its tributaries. The draft Economic (169) Comment: The critical habitat discharge.’’ As a consequence, the full Analysis fails to address the economic designation threatens rights of the Town range of impacts has not been impacts of removing these warmwater of Sierra Vista, Cochise County, and the considered. sportfish, which in many locations are Coalition of New Mexico Counties to Our Response: As noted in comment the primary sportfish. surface and groundwater. 149 above, the geographic scope of the Our Response: Section 6.3 of the final Our Response: Impacts to municipal final economic analysis was estimated economic analysis states ‘‘non-native water use are discussed qualitatively in using information provided in the fish species that could potentially Section 3 of the final economic analysis. Proposed Rule, in which the Service impact spikedace and loach minnow Considerable uncertainty surrounds the states that critical habitat designation include catfish, largemouth bass, specific quantity of water, if any, that extends 300 feet to either side of a smallmouth bass, green sunfish, brown Service would request to be conserved stream’s bank full width. However, the trout, rainbow trout, and red shiner. for spikedace and loach minnow as part analysis is not limited to assessing Possible recovery actions include the of a section 7 consultation. As such, this impacts derived from activities installation of fish barriers, increased analysis does not quantify the occurring inside that area. For example, monitoring, and non-native fish probability or extent to which water use Section 5 of the final economic analysis removal.’’ The AGFD identified planned would need to be curtailed or modified

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to remedy impacts on spikedace and 776,000 × 20 years = $15.52 million (not (175) Comment: The fire management loach minnow. $8.79 million); $181,000 × 20 years = costs in the draft Economic Analysis are (170) Comment: The draft Economic $3.62 million (not $2.77 million) and too low. Analysis states that 29 percent of the $728,000 × 20 = $14.56 million (not Our Response: Based on information land in critical habitat is privately $11.2 million). Taking into account the received during the comment period, we owned. This is a significant amount of 3 and 7 percent analysis does not fix have adjusted estimated impacts to fire private land, especially when you this error. management activities to include costs consider how little streamside acreage Our Response: The Economic related to the 2011 Coronado Fire. The there is within the arid states of Arizona Analysis presents economic impacts analysis estimates three total fire and New Mexico. For many purposes, that may be incurred in different time management activities throughout all of land adjacent to flowing water is the periods in present value terms and the critical habitat designation, one in most valuable land in the arid west. The annualized terms. As described, Unit 3. Impacts to fire management are draft Economic Analysis understates annualized values are calculated to presented in Section 10.3. Impacts are impacts to development on streamside provide comparison of impacts across estimated at $14,200 over the next 20 land. activities with varying forecast periods years ($1,250 on an annualized basis). Our Response: As stated in Section 7 and distribution over time. For this (176) Comment: The draft economic of the final economic analysis, potential analysis, activities employ a forecast analysis should use more up-to-date modifications to development projects period of 20 years. The discrepancies administrative cost figures than the related to spikedace and loach minnow identified by the commenter appear to 2002 dollar figures from across the conservation activities depend on the be related to the commenter’s country. The cost figures used should be scope of spikedace and loach minnow assumptions that reported costs are based on a review of consulting records conservation activities, pre-existing land annual costs, rather than annualized from Arizona and New Mexico from use and regulatory controls in the costs. 2010 through 2011. region, and the nature of regional land Our Response: The draft Economic and real estate markets. In this case, (172) Comment: The draft Economic Analysis provided an incorrect citation consultations on development activities Analysis does not consider the costs of in Exhibit 2–3. Data from the ‘‘Federal have been rare (one to date). In addition, developing alternate water sources, Government Schedule Rates, Office of riparian development buffers already reductions in the number of cattle the Personnel Management’’ is from 2011, exist in many areas, and some operator can run, or additional not 2008. The draft Economic Analysis developments may not require any consultant and meeting costs for grazing and underlying cost models Federal permits. Further, the Service activities. incorporated the most recent estimates does not expect that conservation efforts Our Response: Based on a review of of administrative effort during section 7 related to future development activities the consultation history, the economic consultation, based on data from the in critical habitat areas are likely. The analysis determined that the Service is Federal Government Schedule Rates, analysis nonetheless includes an not likely to request restrictions or Office of Personnel Management, 2011, estimate that assumes that all private reductions on water use for grazing and a review of consultation records parcels in the Verde unit are required to activities during section 7 consultation. from several Service field offices across conduct conservation efforts for Therefore, water use impacts are not the country conducted in 2002. This spikedace and loach minnow. Separate expected for grazing operations. It citation error has been corrected in the from that, Section 11 of the final would be helpful if we can show that final economic analysis. economic analysis describes published the consultation allowed watering areas (177) Comment: The commenter studies that have examined increased too, since I think the issue is not having believes the administrative costs are too property values associated with stream access to the water itself due to fencing. low. habitat. For example, Colby and Wishart (173) Comment: The cost of fish Our Response: The commenter did estimated the value to property arising barrier installation used in the draft not provide a basis for assuming the from proximity to open space provided Economic Analysis is too low. The cost administrative costs estimated in this by streambeds, arroyos, and dry washes of building a fish barrier is between report are too low. in the city of Tucson, Arizona. The $800,000 and $1 million. (178) Comment: The statement that authors found that existence of Our Response: Fish barrier costs are the Service ‘‘anticipates requesting few permanent easements and other policies given in Exhibit 6–6 of the analysis. additional changes’’ is nebulous. to protect these areas increased the Undiscounted fish barrier costs range Our Response: The commenter did property values of homes within one- from $1 million on the low end to $10 not provide a basis for questioning the half mile of the streambed by an average million of the high end. These costs Service’s statements. of five percent. However, compliance (179) Comment: The Federal Register have been confirmed with Bureau of costs for development projects are not and the draft Economic Analysis give Reclamation officials responsible for anticipated to be higher for streamside different total impacts estimates for fish barrier installation in Arizona and homes than in other areas. incremental and coextensive costs. (171) Comment: There are potential New Mexico. Our Response: The information mathematical errors in the calculation of (174) Comment: Transportation costs printed in the revised Proposed Rule impacts. In the Executive Summary, it are too low and the economic analysts and Notice of Availability released by states that ‘‘Incremental impacts are should consult with the affected the Federal Register on October 4, 2011 estimated to be $2.20 million to $8.79 entities. represents an error. The costs reported million over twenty years ($194,000 to Our Response: Section 9 of the final in the draft Economic Analysis posted $776,000 annually) using a real rate of economic analysis reports costs to www.regulations.gov are correct. seven percent, or $2.77 million to $11.2 associated with transportation projects (180) Comment: In Exhibit ES–1, the million over 20 years ($181,000 to that were estimated by the Arizona draft Economic Analysis underestimates $728,000 annually) using a real rate of Department of Transportation related to or avoids stating the true impacts due to three percent.’’ However, $194,000 × 20 a consultation for an endangered fish designation of the San Pedro River. years = $3.88 million (not $2.2 million); species. Cochise County and the City of Sierra

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Vista cannot withstand an impact of and prohibiting fishing and in-stream for spikedace and loach minnow will $3,240,000. An EIS is necessary to recreation in the 25-acre Conservation occur related to development activities, analyze the economic impacts of the Area on the property; improving human the analysis also considers a high end proposed designation. barriers to entrance to the river area and scenario, where proposed critical Our Response: Exhibits ES–1 and preventing trespass; and increasing habitat areas will be built out at a rate ES–2 summarize the expected fence maintenance. The developer for that is proportional to the county-wide administrative costs and project this project stated that 95 percent of housing unit growth rate within the next modification impacts developed in the costs to accommodate threatened and 20 years. To the extent that developers analysis. These costs are detailed in endangered species stemmed from avoid critical habitat areas, this effect Chapter 3 of the final economic southwestern willow flycatcher needs, would be considered a stigma effect and analysis. and that total costs to implement is recognized in the analysis. (181) Comment: The Service has conservation measures would have been (183) Comment: Census data is failed to provide the requisite analysis $4.4 million to $4.8 million. However, compromised in areas of low population required by law prior to designating the Service states that this project did density due to Privacy Act critical habitat. This is evidenced by the not go forward, and that the property considerations. In these areas the fact that the spikedace and loach has since been sold. Many disclosure of economic activities by minnow economic analysis was done by developments do not go forward due to individuals and businesses would entail IEc, the same firm that performed the these types of onerous government disclosing identifiable personal cactus ferruginous pygmy-owl economic restrictions that often add enormous information. Such data needs to be analysis. costs, yet provide little benefit to the determined by on-the-ground surveying Our Response: As described in detail species. The true economic costs of the to produce reliable information on in Section 2.1 of the final economic proposed critical habitat designation potential impacts. To do anything less analysis, the analysis adheres to OMB include the cost of foregone will result in failure to disclose impacts Circular A–4 guidelines for providing development opportunities because the on the most vulnerable segments of the assessments of the social costs and developers and their consultants do not economy. benefits of proposed regulatory actions. even have to ask the Service what the Our Response: The final economic Also, in response to relevant rulings in development restrictions will be. analysis includes, to the extent possible, both the U.S. Ninth and Tenth District Instead, they choose to avoid the entire data sources that represent the most Court of Appeals, in order to address the costly process of consultation with the accurate population and demographic divergent opinions of the courts with Service. data publicly available. Performing an respect to NEPA, and in order to Our Response: Section 7 of the final on-the-ground survey of undisclosed provide the most complete information economic analysis addresses impacts to personal business is outside the scope of to decision-makers, this economic development activities. As discussed in the final economic analysis. analysis reports both the baseline that section, the analysis utilizes a range (184) Comment: There is a total impacts of protections afforded the four of assumptions to estimate the potential omission of the affected counties and invertebrates absent critical habitat impact of critical habitat on other local government road and bridge designation and the estimated development activities in these areas. maintenance and construction impacts. incremental impacts precipitated Individual single-family home Had the Service properly contacted the specifically by the designation of critical development has rarely been subject to affected counties and other local habitat for the species. Summed, these consultation or habitat conservation governments, they could have obtained two types of impacts comprise the fully planning requirements in Arizona. As numerous impacts that are not co-extensive impacts of conservation in noted in the comment, only one catalogued by the state departments of areas considered for critical habitat development has undergone a formal transportation. The failure to obtain and designation. section 7 consultation related to analyze these impacts renders this (182) Comments: One section 7 development activities and impacts to section deficient. consultation for a development project multiple species, including spikedace Our Response: As stated in the final occurred in Yavapai County and and loach minnow, in the past, and this economic analysis, county road and considered potential impacts to the development was never, so no actual bridge construction and maintenance spikedace, loach minnow and the cost information is available. projects often require state Department southwestern willow flycatcher on the A number of existing baseline of Transportation involvement on some lower Verde River. The Homestead requirements prohibit development in level. Due to Federal funds accepted by Project consultation recommended the floodplain areas, which limits the most state Departments of following conservation measures: likelihood of developments within the Transportation, county road and bridge Fencing; producing educational critical habitat designation. In addition construction activity can be subject to a materials for homeowners; conducting to the rarity of consultations in the past, Federal nexus. The Arizona Department scientific studies over 20 years; potential for baseline protections, as of Transportation and the New Mexico surveying and monitoring over 20 years; well as the potential lack of a Federal Department of Transportation were and off-setting mitigation (habitat set- permit requirement for some contacted and responded with asides). To ensure that the action would development projects, the Service does information on all county and state road not adversely affect the spikedace and not expect that conservation efforts and bridge construction projects that loach minnow, the following measures related to future development activities required state Department of were added: developing a recreation and in critical habitat areas are likely to Transportation involvement. All county habitat monitoring plan; monitoring occur. As a result, the low end scenario and state road construction projects that effects of recreation on habitat; assumes that no future consultations or may potentially require section 7 implementing measures to ensure that conservation efforts on development consultation were captured in these habitat and streambanks are not will occur related to spikedace and communications and are presented in degraded; reducing risk of exotic species loach minnow over the next 20 years. Section 9 of the final economic analysis. reintroduction through educational However, because it is not certain that Those projects that do not require programs, prohibiting backyard ponds, no consultations or conservation efforts Department of Transportation

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involvement lack a Federal nexus and million to $8.79 million over twenty October 4, 2011, Federal Register would not be subject to section 7 years ($194,000 to $776,000 annually) notice, draft environmental assessment consultation, and thus are not using a real rate of seven percent. and draft economic analysis caused anticipated to incur costs associated some confusion. General Comments Issue 4: National with this rule. Our Response: Because fishes occupy (185) Comments: The draft Economic Environmental Policy Act Concerns stream habitat, we have determined that Analysis at Section 8–4 makes note of (188) Comment: The mission of the it is more appropriate to quantify the the fact that the Bureau of Indian Affairs Service is to conserve, protect and delineation in terms of stream miles provides technical assistance to the enhance fish, wildlife, plants and their rather than total acres. All mileage Tribes on forest-management planning habitats for the continuing benefit of the figures throughout the rule and in the and oversees a variety of programs on American people. This mission will tables have been checked for tribal lands. While the purpose of this work much better when done with full consistency and adjusted where statement is not made clear by the disclosure of agency analysis processes necessary. In addition, see the Service, any suggestion that the BIA as is called for by NEPA. FWS should discussion on lateral extent of the presently has or will in the future have consider the impacts of their actions on stream in the Criteria Used to Identify sufficient funding and/or programs to the local citizens and should give due Critical Habitat section. ‘‘offset’’ the increased administrative weight to feedback from those who will (191) Comment: Several comments and other costs resulting from the bear the direct burden of FWS actions. asked why different alternatives were designation of critical habitat on tribal Our Response: The Service has made not evaluated in the environmental and lands such as the Yavapai-Apache available a draft economic analysis and economic analyses, including the 1994 Reservation is misplaced. In truth, a draft environmental assessment which critical habitat designation (with and federal funding for tribal programs and considered the impacts of the critical without appropriate exclusions), programs for technical assistance within habitat designation on local citizens. In evaluating only river and streams that the BIA are increasingly threatened in addition, we completed two comment are currently occupied, and, an today’s tough economic and budget periods totaling 90 days, which alternative that evaluates the climate. The Service simply cannot rely included an open house and public designation of critical habitat in light of on the BIA as a means to potentially hearing, during which comments were the Service’s policy of supporting and ‘‘mitigate’’ for the increased costs that submitted by the public. The comment enhancing recreational fishing the Nation will suffer if critical habitat and response section of this document opportunities with the designation of is designated on the Nations lands. provides the feedback requested. critical habitat. Our Response: The draft Economic (189) Comment: There were several Our Response: Critical habitat is Analysis did not intend to imply that comments on the inadequacy of the defined in section 3 of the Act as: BIA involvement would mitigate costs draft environmental assessment, (1) The specific areas within the to the Tribes, only that BIA involvement especially in respect to making a geographical area occupied by the could potentially provide a Federal determination of negligible to minor species, at the time it is listed in nexus for projects associated with BIA impacts on the environment. accordance with the Act, on which are programs. This has been clarified in Our Response: We determined found those physical or biological Section 8 of the final economic analysis. through the NEPA process that the features (186) Comment: The draft overall effects of this action are (a) Essential to the conservation of the environmental assessment states that insignificant. An EIS is required only if species and ‘‘As a result the Fort has reduced its we find that the proposed action is (b) Which may require special water usage from 3,300 acre–feet per expected to have a significant impact on management considerations or year (20 years ago) to 1,142 acre–feet the human environment. The completed protection; and currently.’’ There is a difference studies, evaluations, and public (2) Specific areas outside the between water usage and groundwater outreach conducted by the Service have geographical area occupied by the pumping volume. The values used in not identified impacts resulting from the species at the time it is listed, upon a this sentence are groundwater pumping proposed designation of critical habitat determination that such areas are rather than water usage. This statement that are clearly significant. The Service essential for the conservation of the is inaccurate and needs to be revised. has afforded substantial public input species. Our Response: The language in the and involvement, with two comment We do not believe the area final economic analysis has been periods and a public hearing. Based on encompassed by the 1994 designation revised to reflect this comment. our analysis and comments received would include areas essential for the (187) Comment: The Federal Register from the public, we prepared a final EA conservation of the species. In addition, and DEA give different total impacts and made a Finding of No Significant if we were to limit critical habitat to the estimates for incremental and Impact (FONSI), negating the need for a 257 km (159 mi) in the 1994 coextensive costs. preparation of an EIS. We have designation, any impacts to that limited Our Response: The information determined that our EA is consistent amount of area would be much more printed in the proposed rule and NOA with the spirit and intent of NEPA. The difficult to minimize or offset, and the released by the Federal Register on final EA, FONSI, and final economic likelihood of reaching the adverse October 4, 2011, represents an error. analysis provide our rationale for modification threshold would be The costs reported in the draft economic determining that critical habitat substantially increased. Also, the goal analysis posted to http:// designation would not have a significant for management of spikedace and loach www.regulations.gov are correct. Total effect on the human environment. Those minnow is to recover the two species so incremental impacts for all of the above documents are available for public that they may be removed from the activities are estimated to be $2.29 to review (see ADDRESSES) endangered species list, and recovery $47.2 million over 20 years ($202,000 to (190) Comment: A commenter would not be possible within the $4.16 million annually) using a real rate requested that the actual size or distance confines of the limited area included in of seven percent. The final draft of stream proposed as critical habitat be 1994. Finally, the Service is charged economic analysis values were $2.20 clarified. The information in the with using the best scientific and

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commercial information available. New as that number is dictated by as-yet- plans detailing those conservation information has been gained about the undefined projects that will occur measures. The final rule describes species, their habitat requirements, and within critical habitat and that have a several exclusion decisions that were distribution, and the use of the 1994 Federal nexus. Therefore, we have made made, including one for Fort Huachuca, rule would not reflect this information. the best predictions possible based on following closure of the second In addition, for a species that is existing information, which is the level comment period and review of all currently limited to 10 to 20 percent of of section 7 consultation that has materials received. its range, recovery in the remaining occurred in the past. (196) Comment: The word occupied areas is impractical. Areas (194) Comment: The use of ‘‘unknown’’ was used at least 26 times outside of the currently occupied areas introduction of nonnative predators and in relation to impacts, which triggers an will be needed to recover both species, prolonged periods of low or no stream EIS. The primary purpose of preparing and we have included these areas as flow as catastrophic events in the draft an environmental assessment under essential to the conservation of the environmental assessments ensures 100 NEPA is to determine whether a species. percent chance of a ‘‘catastrophic event’’ proposed action would have significant Finally, with respect to conflicts with as there is continued stocking of impacts on the human environment. If sportfishing opportunities, the Service nonnative fish by State fish and wildlife significant impacts may result from a is currently completing a sportfish agencies and because every year there proposed action, then an EIS is required stocking consultation that addresses are widespread and common (40 CFR 1502.3). Whether a proposed management for native fish and ‘‘prolonged periods of low or no stream action exceeds a threshold of sportfish. In addition, the Service flow’’ along large portions of the Upper significance is determined by analyzing coordinates closely with the Arizona San Pedro River and a number of other the context and the intensity of the Game and Fish Department on stream and river segments proposed for proposed action (40 CFR 1508.27). management of native fishes and critical habitat. Under Council of Environmental sportfish. Our Response: The language in this Quality (CEQ) regulations, which are (192) Comment: Hidalgo County comment comes from the ‘‘Need for the responsible for ensuring compliance officials and residents were not aware of Action’’ section of the draft with NEPA, intensity is determined by the status of the critical habitat proposal environmental assessment. Taken in considering 10 criteria (CFR 40 until March of this year. We need to context, the information in this section 1508.27[b]) including ‘‘the degree to point out that the only published highlights the fact that habitat loss or which the proposed action would newspaper in Hidalgo County, the alteration has occurred in the past, and impose unique, unknown, or uncertain Hidalgo County Herald, was not that additional losses or further risks (emphasis added).’’ The proposed included in the Service’s contacts for restrictions in the species’ distributions alternatives in the EA would impose at publishing the notices. increases their vulnerability to a variety least 26 ‘‘unknown’’ risks including the Our Response: The Hidalgo County of threats. The intent of this section was risk of compromising national security Herald was included in our notification not to highlight any one threat or by taking money away from the War on list, and Hidalgo County officials are management concern, but to provide Global Terrorism. An EIS is required included in our interested parties background information on the need for under 40 CFR 1508.27. mailing list. We believe the two the critical habitat designation. Our Response: If some of the impacts comment periods allowed for adequate (195) Comment: To state that the will occur in the future, the Federal opportunity for public comment. A total impact of excluding an area due to agency still has an obligation to of 90 days was provided for document economic, national security, or other consider reasonably foreseeable future review and for the public to submit needs would depend on issues not impacts. 40 CFR 1508.7 defines comments. In addition, a public hearing addressed in the environmental ‘‘cumulative impact’’ as the impact on was scheduled on October 17, 2001, as assessment is an admission that the the environment which results from the another venue for comment submission. environmental assessment is incremental impact of the action when (193) Comment: The first paragraph of inadequate. The EA never analyzes added to other past, present, and the discussion of Alternative A in the conservation measures at Fort Huachuca reasonably foreseeable future actions draft environmental assessment or anywhere else except Ttribal and regardless of what agency (Federal or indicates that the current critical habitat FMC lands. These facts continue to non-Federal) or person undertakes such designation includes an increase of up support the argument that all the major other actions (Custer County Action to 239 miles of designated critical decisions were made before the Ass’n v. Garvey, 256 F.3d 1024 (10th habitat over the 2007 designation of 522 environmental assessment was written. Cir. 2001)). The record of decision must miles, and then states that addition The EA is a post-decision document, in contain a ‘‘useful analysis of the would result in a small but unknown violation of NEPA. cumulative impacts of past, present, and number of new or reinstated Our Response: The draft future projects,’’ which requires consultations and that the economic environmental assessment was ‘‘discussion of how [future] projects analysis projects at a similar rate and in completed following the publication of together with the proposed project will similar units as the past. Considering the proposed rule, but prior to the affect [the environment] (Muckleshoot the addition of 239 miles is development of a final rule for critical Indian Tribe v. U.S. Forest Serv., 177 approximately a 45 percent increase in habitat. Comment letters, including F.3d 800, 810 (9th Cir. 1999)).’’ habitat designation, the impacts are management plans, can be accepted up Nevertheless, NEPA does not require being understated. In addition, through the closing of the second the government to do the impractical unoccupied habitat does not currently comment period, which follows the (Kleppe v. Sierra Club, 427 U.S. 390, require consultation. publication of the draft environmental 1976). Determining the environmental Our Response: The overall assessment. Therefore, there is no impacts of reasonably foreseeable designation does include an increase in possible way for the draft environmental actions does not mean that the Federal total mileage over that designated in assessment to address conservation agency has to wait to make its decision 2007. The Service cannot predict the measures, as its publication preceded on the current project until the details number of consultations that will occur receipt of comments and management of other foreseeable actions are known

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(Kleppe v. Sierra Club, id.; Inland portions of the Nation’s recent written almost no substantive analysis or Empire Public Lands Council v. U.S. comments submitted to the Service on discussion, that the impacts of Forest Service, 88 F.3d 754 (9th Cir. December 27, 2010, which summarize designating critical habitat on the 1996). If a future action is foreseeable the steps that the Nation has taken since Nation’s lands for the spikedace and but not imminent and its details are not enactment of Tribal Resolution No. 46– loach minnow under Alternative B yet known, the Federal agency is not 2006, to provide continuing protection ‘‘would be minor.’’ Draft EA at pp. 145– required to wait until the details of the for the habitat within the Verde River 146. The Nation disagrees. other action are known before Conservation Corridor. See Draft EA at Our Response: In the final rule, proceeding (Kleppe v. Sierra Club, 141 (referencing only the Nation’s Yavapai-Apache lands have been supra). When further investigation comments from 2006 relative to the excluded from the designation. Both the would provide no definitive information Verde River Conservation Corridor and economic analysis and environmental to resolve the issues during the time ignoring recent comments updating the assessment have been updated in frame for the decision on the project, Service on this matter). response to these comments. further investigation in an EIS is not Our Response: The purpose of the (202) Comment: The Service is required (Kleppe v. Sierra Club, 427 draft environmental assessment is to requested to once again review the U.S. 390 (1976); Neighbors of Cuddy reflect the impacts of the decision, as Nation’s prior written and oral Mountain v. United States Forest Serv., made by the Service, of the critical comments (2006 through 2010) 137 F.3d 1372, 1380 (9th Cir. 1998)). habitat designation. The Service does regarding the potential designation of (197) Comment: We strongly not make decisions on exclusions until critical habitat on the Yavapai-Apache challenge the adequacy of the draft both comment periods have been Reservation and to meaningfully discuss environmental assessment, especially in closed, in order to ensure that all parties these concerns in the final how it glosses over the serious and have an opportunity to provide relevant environmental analysis (Alternative B) significant adverse effects to loach information. Therefore, at the time the and in the final economic analysis. minnow and spikedace populations and draft environmental assessment was Our Response: In the final rule, adverse modifications to critical habitats published, the Service had not yet Yavapai-Apache lands have been that the livestock industry has imposed decided that the Yavapai-Apache Nation excluded as we determined that the after a century of devastation and stream lands would be excluded from the Yavapai-Apache Nation’s resolution and riparian ecosystem destruction in designation. The comments regarding specifically addresses conservation of the Gila River Basin. the steps the Nation has taken are most these species, and the benefits of Our Response: The proposed rule and relevant to the Service’s decision, which exclusion outweighed the benefits of final rule acknowledge the significant is then ultimately reflected in the draft inclusion. impact grazing has had on many environmental assessment. (203) Comment: It must also be noted watersheds in the West. We also (200) Comment: In reviewing the that the draft environmental assessment acknowledge significant improvements existing conditions of water resources of wrongly states that the Tribal lands on Federal lands due to restrictions in the Verde River, the draft environmental considered for critical habitat riparian and stream corridors and other assessment discusses the ‘‘water rights’’ designation ‘‘are primarily used for management practices. of the Salt River Project and other non- livestock grazing, fuelwood cutting, (198) Comment: The draft Indian users along the River, but fails to roads, and recreation.’’ By lumping all environmental assessment (and where mention the important fact that the Tribal lands together in its analysis, the relevant, draft economic analysis) fails, Yavapai-Apache Nation, and the United draft environmental assessment among other things, to accurately States as the trustee for the Nation, also misrepresents how the Yavapai-Apache characterize (and therefore consider) (a) hold present and perfected, high- Nation utilizes the lands within the the substantive protections that already priority water rights to the surface flows Verde River Subbasin that are proposed exist on the Yavapai-Apache of the Verde River and its tributaries for designation in this instance. These Reservation for the spikedace and loach under principles of Federal law. See, lands are used to satisfy the permanent minnow; (b) the nature of surface water e.g., Arizona v. California, 373 U.S. 546, tribal homeland needs of the Yavapai- rights within the Verde River Subbasin, 600 (1963); see also, In Re The General Apache Nation. It should also be including the Federal reserved water Adjudication of All Rights to Use Water pointed out that contrary to the Draft rights that are held by the United States In the Gila River System and Source, EA, these lands are not utilized for of America in trust for the Nation; and 201 Ariz. 307, 35 P.3d 68, 71–72 (2001) livestock grazing and they remain (c) the adverse impacts that the (‘‘Gila V’’). In addition, other tribes, protected pursuant to tribal law under designation will have on the Nation’s including the Fort McDowell Yavapai tribal Resolution No. 46–2006. In ability to preserve itself in its permanent Nation and the Salt River Pima- addition, the Nation generally does not tribal homeland as outlined by the Maricopa Indian Community, hold high- permit fuelwood cutting within this area Nation in prior comments and priority water rights to the Verde River, and the Nation has only one minor discussions with the Service on this yet the draft environmental assessment access road across the River. Although matter. fails to mention this fact as well. the Nation does utilize the Verde River Our Response: We appreciate the Our Response: The purpose of the to satisfy the recreational needs of its concerns of the Tribe and have excluded draft environmental assessment is to tribal members, this does not involve all lands of the Yavapai-Apache Nation reflect the impacts of the decision, as large-scale recreational activities. In in consideration of impacts to the Tribe, made by the Service on the critical addition, it is important to understand their sovereign nation status, existing habitat designation. The final the fundamental role that the Verde management practices, and ongoing environmental assessment will be River and its habitat continues to play relationship with the Service. The updated where needed, in response to in the traditional, cultural, and religious Exclusions section of the final rule the two comment periods. practices of the Nation. Indeed, as the details our rationale for the exclusion. (201) Comment: In the Nation has repeatedly explained to the (199) Comment: Furthermore, the ‘‘Environmental Consequences’’ section Service, the Verde River is intertwined draft environmental assessment fails to of the draft environmental assessment with the identity of the Yavapai and discuss (or even reference) those (3.9.2), the Service concludes, with Apache people, including with regard to

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certain ceremonial and religious loach minnow may help the public the lower San Pedro segment to no practices that are deliberately conducted understand the mindset of the Service, longer meet the rule set for spikedace or within the Verde River Corridor. None however they do little to provide loach minnow critical habitat. For loach of these important points have been information concerning the actual minnow only, the 22.9 km (14.2 mi) meaningfully considered in the Draft environmental effects of designating segment of the San Francisco River EA. The Nation respectfully requests critical habitat for the species. The segment upstream of the Tularosa River that the Service address as part of the Service should revise the draft confluence is included in the final rule final environmental assessment and environmental assessment to remove for critical habitat designation for loach final economic analysis the Nation’s much of the explanation language for minnow. previously stated concerns pertaining to the Act and replace it with analysis of (207) Comment: The Statement in the myriad of very real and specific the environment effects of designating Chapter 4 of the draft environmental impacts that are likely to stem from the SD/LM critical habitat. As stated in 40 assessment states that the potential proposed designation on the Nation’s CFR, Part 1500.1(b), ‘‘Most important, impacts on the quality of the lands, which includes impacts on the NEPA documents must concentrate on environment are not likely to be highly Nations ability to preserve itself in its the issues that are truly significant to controversial, which is not true, permanent tribal homeland. the action in question, rather than especially for the upper San Pedro River Our Response: Thank you for the amassing needless detail.’’ area. response. We note that the lands are Our Response: The 2011 draft and Our Response: The Service has used to satisfy the permanent tribal 2012 final environmental assessment reviewed the comments submitted by homeland needs of the Yavapai-Apache largely follow the format and Fort Huachuca regarding the potential Nation. We further note that the Nation methodology used to prepare the 2006 impacts of the designation on national does not permit fuelwood cutting within final environmental assessment. security activities conducted (in some certain areas, and that some portion of Additional information has been cases exclusively) at Fort Huachuca and the land is used for certain ceremonial provided to the more recent determined that the San Pedro River and religious practices. environmental assessments, where should be excluded based on potential (204) Comment: The summary for the needed, to refine habitat requirements impacts to national security. August 26, 2011, draft environmental (physical and biological features) (208) Comment: Under topics assessment indicates that two additional essential to the conservation of the dismissed from detailed analysis in the proposed stream segments were added species, changes to stream segments draft environmental assessment, the last for critical habitat designation in some proposed for critical habitat designation. bullet at the bottom of the page on places, and that three additional stream Additional information has also been Urban quality and design of the built segments were added in other places provided, where necessary, with respect environment (1502.16) states that the within the document. The location and to the affected environment and proposed critical habitat segments are description of these two or three added environmental consequences. The not located in urban or other built stream segments are not described in the conclusions of the environmental environments and would not affect the description of the alternatives found in consequence analysis have not quality of such environments. While Chapter 2 of the DEA. substantially changed from the 2006 this is a true with respect to the actual Our Response: The Service has made final environmental assessment to the critical habitat location, it is misleading changes to five stream segments 2012 final environmental assessment. when considering the location of the proposed for critical habitat designation (206) Comment: In comparison to critical habitat with regard to the City of subsequent to publication of the Alternatives A and B, the No Action Sierra Vista and Fort Huachuca. Surface proposed rule. These include: (1) Alternative includes three stream water flow in the San Pedro River Increasing the length of the San segments not in the 2010 proposed rule. includes a component referred to as Francisco River critical habit segment These stream segments are now base flow from the regional aquifer for loach minnow only from 112.3 miles considered by the Service to be highly outside of the potential critical habitat to 126.5 miles; (2) adding a 19.5-mile degraded and likely not occupied by designation. This is acknowledged at critical habitat segment of Bear Creek for spikedace or loach minnow. The ISC other points in the documents (see the loach minnow only; (3) reducing the would like to know where those top of page 85). Considering the Redfield Canyon critical habitat segment segments are located, what degradation possibility of future limitations on for spikedace and loach minnow from supports removal from listing. groundwater uses in these built-up 14.0 miles to 4.0 miles; (4) reducing the Our Response: The no action areas, the effect on the quality of such Hot Springs Canyon critical habitat alternative is the 2007 final rule. When environments needs to be analyzed as segment for spikedace and loach compared to the 2010 proposed rule, the part of this environmental assessment. minnow from 11.8 miles to 5.8 miles; no action alternative includes three Our Response: The Service has and (5) increasing the Fossil Creek stream segments not included in the reviewed the comments submitted by critical habitat segment for spikedace 2010 proposed rule: (1) For spikedace Fort Huachuca regarding the potential and loach minnow from 4.7 miles to only, the middle Gila River from impacts of the designation on national 13.8 miles. These changes are reflected Ashurst-Hayden Dam upstream to the security activities conducted (in some in the final environmental assessment. confluence of the San Pedro River; (2) cases exclusively) at Fort Huachuca and (205) Comment: The Service has for spikedace only, the lower San Pedro determined that the San Pedro River failed to provide adequate information River from the confluence with the Gila should be excluded based on potential regarding the actual environmental River to the confluence with Aravaipa impacts to national security. There is impacts of critical habitat designation Creek; and (3) for loach minnow only, therefore no potential for the potential for spikedace and loach minnow. the San Francisco River upstream of the impacts discussed in this comment to Statements in the draft environmental confluence with the Tularosa River. The occur as a result of the final critical assessment explaining the requirements Service has re-evaluated the suitability habitat designation. of the Act and the rationale for the of these three stream segments for (209) Comment: The draft Service to propose and then designate critical habitat designation and now environmental assessment indicates that critical habitat for the spikedace and considers the middle Gila segment and ‘‘the stream channel at bank full width,

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plus 300 feet on either side of bank full (212) Comment: Portions of the regulations in 40 CFR 1501.6, it is the width * * *’’ This would result in a discussion on the San Pedro River continuing responsibility of the Federal designation of 600 feet lateral distance center on adversely affecting livestock government to use all practicable plus the stream channel. Throughout grazing but there is no discussion on the means, consistent with other essential this draft environmental assessment the impacts associated with Fort Huachuca. considerations of national policy, to critical habitat designation is referred to Our Response: The Service has improve and coordinate Federal plans, as a 300-foot corridor and not a 600-foot reviewed the comments submitted by functions, programs, and resources. The corridor. Considering this discrepancy, Fort Huachuca regarding the potential City of Sierra Vista, Cochise County, if the analysis was actually done on a impacts of the designation on national and affected counties within the 300-foot width rather than a 600-foot security activities conducted (in some Coalition respectfully request agency width, it would seem that this draft cases exclusively) at Fort Huachuca and coordination. environmental assessment would be determined that the San Pedro River Our Response: Local governments significantly flawed and will need to be should be excluded based on potential have been provided with adequate redone. impacts to national security. opportunity to comment on the Our Response: The critical habitat (213) Comment: While the draft proposed rule, draft environmental designation includes the width of the environmental assessment discusses assessment, and draft economic stream (which will vary), and 300 feet impacts such as drought, current and analysis. As noted at comment 128, we on either side of bankfull width. This future market trends and fluctuations, believe the two comment periods has been corrected in the final and supplemental forage availability allowed for adequate opportunity for environmental assessment. contribute to the cumulative impacts on public comment. A total of 90 days was (210) Comment: Under alternative B, livestock grazing. While the impacts provided for document review and the the draft environmental assessment from critical habitat designation are public to submit comments. In addition, states that there is a potential increase expected to have generally minor an open house and public hearing were adverse effects on current livestock of 313 miles of designated critical held on October 17, 2011, providing grazing conditions, an acknowledgment habitat from the existing designation of another opportunity for comment must be given to other factors that 522 miles and again states there would submission. Per our Regional Solicitor, contribute to the cumulative impacts on be a small but unknown increase in there is no designation for ‘‘Coordinator grazing. Though the draft environmental section 7 consultations. When Status.’’ However, in addition to the assessment document acknowledges considering this is approximately a 65 comment period we personally visited cumulative impacts in the above percent increase in the critical habitat with these commenters on several statement, it does not analyze them and occasions to ensure that their concerns designation, the impacts are being it does not take into consideration that were heard and considered. The Service understated. it is the incremental addition of species met with representatives of Hidalgo Our Response: The increase in after species and critical habitat County, Grant County, and Catron consultations is anticipated to be small restriction upon critical habitat County in March of 2011; Apache based on historical information about restriction that is killing the livestock County, Grant County, Hidalgo County, past consultations. There is potential for industry. The cumulative impacts need and Catron County in Springerville in new consultations not already covered to be identified and quantified. July 2011; and with the City of Sierra by the Act in stream segments currently Our Response: The 2011 draft and Vista, Cochise County, the Hereford unoccupied by either spikedace or loach 2012 final environmental assessment Natural Resource Conservation District, minnow. largely follow the format and Hidalgo County, and Fort Huachuca in (211) Comment: The Cumulative methodology used to prepare the 2006 November of 2011. We held an Impacts section should be revised to final environmental assessment. additional conference call with Fort emphasis on the significance of the Additional information has been Huachuca in August of 2011. We socioeconomics and water management provided to the more recent concluded that cooperator status would impacts of the listings. environmental assessments, where be limited to New Mexico and Arizona Our Response: The Service has needed, to refine habitat requirements Game and Fish Departments. Per our evaluated the potential environmental (physical and biological features) Regional Solicitor, there is no consequences of the proposed critical essential to the conservation of the designation for ‘‘Coordinator Status.’’ habitat designation for spikedace and species, changes to stream segments However, in addition to the comment loach minnow and determined that the proposed for critical habitat designation. period we personally visited with these incremental impact of designating Additional information has also been commenters on several occasions to additional critical habitat for the provided, where necessary, with respect ensure that their concerns were heard spikedace and loach minnow when to the affected environment and and considered. added to other past, present, and environmental consequences. The (215) Comment: The Service must use reasonably foreseeable future actions in conclusions of the environmental the best scientific and commercial the analysis area would be minor on consequence analysis have not information available as required by the water resources, wetlands and substantially changed from the 2006 Act and the Data Quality Act of 2000 floodplains, natural resources, land use final environmental assessment to the (Paperwork Reduction Act (44 U.S.C. and management (including livestock 2012 final environmental assessment, 3501 et seq.), here forth referred to as grazing), wildlife fire management, and including the section of text that is Data Quality Act) standards. Had recreation. Tribal socioeconomics, tribal referred to in the comment. Service employees followed the Trust resources, and tribal (214) Comment: Several commenters requirements in the laws and environmental justice may incur noted that, in order to be in compliance regulations and used the best scientific additional impacts if alternative B is with various case law, policies, or and commercial information available selected. Fort Huachuca could also regulations including Chapter 1 of and their internal agency guidelines incur additional impacts on national NEPA, Bennett v. Spear 550 FW 1, the contained in Chapter 1 of NEPA—Policy security activities if alternative B is Citizens Guide to NEPA (2007); and and Responsibilities—550 FW 1, the selected. page 16 of the 550 FW 1 and NEPA agency would have had the necessary

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information to properly prepare the of a Section 7 consultation affecting Our Response: While potential NEPA document and economic impact water use and this affected a Federal administrative costs and impacts to analysis. entity (Fort Huachuca). existing infrastructure are relatively Our Response: Under the Act, the (217) Comment: The draft predictable, potential impacts on water Service must make decisions to environmental assessment indicates that use that could result from spikedace and designate critical habitat on the basis of channelization of streams for purposes loach minnow conservation, the best available scientific and of flood control may increase the risk of particularly in areas that are currently commercial data. When making critical flooding. This statement is confusing to unoccupied by the species are, in large habitat decisions, the Service consults the reader and it should be explained part, uncertain. The majority of past with experts within and external to the better or removed from the next version consultations on water issues have not Federal government and considers of the NEPA document. focused on water availability or water studies or data from Federal and state Our Response: We refer the reader to quantity issues. Instead, they have agencies, other stakeholders, and the page the October 28, 2010, proposed focused on nonnative species general public. Proposed and final rules rule (page 66487). Language in the reintroduction issues for multiple native are reviewed by the Service at the field, proposed rule states that sections of fish species, diversion repair and bank- regional, and national level to help many Gila Basin Rivers and streams stabilization-type projects, and ensure that the analysis is sound and have been, and continue to be, occasionally proposed water exchanges. conforms to the ‘‘best available science’’ channelized for flood control, which To date there has been only one known requirement. Additionally, the Service disrupts natural channel dynamics example of a Section 7 consultation also has a policy to ask at least three (sediment scouring and deposition) and affecting water use and this affected a independent scientific experts in a promotes the loss of riparian plant Federal entity (Fort Huachuca). The relevant field to provide a ‘‘peer review’’ communities. Various changes to stream Service has reviewed the comments of the proposed decisions to ensure that channels occur through channelization, submitted by Fort Huachuca regarding best available science is considered. including increases in water velocity in the potential impacts of the designation When considering a critical habitat the channelized section, subsequent on national security activities proposal, the Service is also required to increases in rates of erosion, and in conducted (in some cases exclusively) at consider economic impacts through some instances deposits of sediment in Fort Huachuca and determined that the completion of an economic analysis. downstream reaches that may increase San Pedro River should be excluded (216) Comment: Impacts to surface the risk of flooding. The final based on potential impacts to national flows in streams may also result from environmental assessment has been security. pumping of groundwater wells located modified to provide clarification on this (219) Comment: The draft outside of the proposed 300-foot critical topic. environmental assessment notes that habitat corridor. The groundwater– (218) Comment: The draft some required Section 7 conservation surface water interactions of each environmental assessment indicates that measures could have minor to moderate hydrologic system are unique and the effects on future water management adverse impacts on water management require site-specific analysis to fully activities and water resources from activities (e.g., groundwater pumping, understand potential interactions and critical habitat designation are expected surface water diversion, impacts. The NEPA process requires to be minor and are not anticipated to channelization). The term ‘‘minor to decisionmakers be informed of impacts. constrain any proposed water moderate adverse impacts’’ should be It is unclear from the draft management activities because most all defined, as water is not a small matter. environmental assessment whether of the proposed segments are occupied Every impact to water should be groundwater wells outside the 300 foot by the spikedace and loach minnow. addressed in an EIS to the extent critical habitat boundary will be shut The impact of critical habitat required by law. down if they are determined to impact designation on future water Our Response: The NEPA and related surface flows. This impact needs to be management activities was not supporting regulations require that an made very clear. Significant economic addressed for unoccupied habitat, and Environmental Impact Statement be impacts to well owners outside the 300 this is a fatal flaw in the draft prepared and approved when a foot critical habitat boundary could environmental assessment. The impacts proposed Federal action would cause occur if their wells are shut down. An to the Upper San Pedro River were not significant impacts. The Service has Environmental Impact Statement is addressed because the draft determined through its completion of a necessary to address this issue. environmental assessment is too general NEPA environmental assessment that Our Response: While potential and fails to take a ‘‘hard look’’ at the the proposed designation of critical administrative costs and impacts to impacts of designating critical habitat. habitat for spikedace and loach minnow existing infrastructure are relatively No attempt has been made to analyze would not result in significant impacts. predictable, potential impacts on water the full range of impacts resulting from This is not to say that there would be use that could result from spikedace and the critical habitat designation, no impacts to water or other resources, loach minnow conservation, including water development and use but that the impacts are not anticipated particularly in areas that are currently outside the critical habitat boundary. to be significant based on the Service’s unoccupied by the species are, in large Instead, impacts on agricultural, analysis. At this time, the Service does part, uncertain. The majority of past municipal and industrial water not believe there is a legitimate basis for consultations on water issues have not development projects are ‘‘unknowable preparing an environmental impact focused on water availability or water at this time,’’ ‘‘cannot be predicted with statement. quantity issues. Instead, they have precision’’ and are ‘‘mostly uncertain.’’ (220) Comment: The draft focused on nonnative species Similar statements appear throughout environmental assessment states that reintroduction issues for multiple native the document, indicating that the adverse impacts of critical habitat fish species, diversion repair and bank Service has failed to take the required designation on livestock grazing, stabilization projects, and occasionally ‘‘hard look’’ at the environmental however, are expected to be generally proposed water exchanges. To date consequences of the proposed minor in part because livestock grazing there has been only one known example alternatives. operations typically occur on a large

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scale, and designated critical habitat follows the format and methodology of two species. All of the vague within any one allotment is likely to be the 2006 final environmental environmental consequence language small; and therefore, few grazing assessment used to prepare the 2007 only serves to put local citizens on allotments are likely to be subject to final rule, including the structure of notice that the designation of the consultation requirements based solely alternatives. In the 2011 draft proposed critical habitat could impact on the presence of the spikedace and environmental assessment, alternative A their use of federal land and the future loach minnow designated critical included a number of stream segments management of their private land, where habitat. As required by Bennett v. Spear being considered by the Service for their land is included in a proposed (1997), each agency must ensure that the exclusion. Additional stream segments critical habitat unit. Act not be implemented haphazardly, or have been considered by the Service for Our Response: The 2011 draft and on the basis of speculation or surmise. exclusion under this Alternative based 2012 final environmental assessment This statement in the draft on comments received subsequent to largely follow the format and environmental assessment shows a publication of the 2010 proposed rule, methodology used to prepare the 2006 complete lack of understanding of 2011 draft environmental assessment, final environmental assessment. western livestock grazing operations. and 2011 draft economic analysis. Additional information has been There is a very limited amount of water (223) Comment: To ‘‘occupy’’ to us provided to the more recent in the arid west, and the portion of an implies perennial, year-round and year environmental assessment, where allotment that is most valuable is the after year occurrence, and we conclude needed, to refine habitat requirements water source because without water you that the Service, in the draft (physical and biological features) cannot graze livestock. To state that the environmental assessment, was essential to the conservation of the impacts are expected to be generally implying the same thing. To use occupy species, changes to stream segments minor because designated critical for any status other than permanent proposed for critical habitat designation. habitat (the water) is likely to be a small residence is misleading. If occupation is Additional information has also been part of the allotment, is haphazard intermittent, such should be stated. provided, where necessary, with respect implementation of the Act. Our Response: Please see the to the affected environment and Our Response: The 2011 draft discussion under the subheading environmental consequences. The environmental assessment and 2012 ‘‘Occupied Versus Unoccupied Areas in conclusions of the environmental final environmental assessment are the final rule for our definition of consequence analysis have not generally aligned in format and occupied habitat and a discussion of the substantially changed from the 2006 methodology with the 2006 final rationale for that definition. final environmental assessment to the (224) Comment: The environmental environmental assessment. The 2012 final environmental assessment. environmental consequence analysis consequence determinations for each of (225) Comment: The draft has not substantially changed. This the various resource categories that are environmental assessment contains the presented throughout the draft same text pertaining to livestock grazing statement; ‘‘It is not expected, based on environmental assessment are not appeared in the 2006 final past consultations in the Southwest that environmental consequence environmental assessment (see p.72). designation of critical habitat would determinations, but a listing of the (221) Comment: The draft result in the infringement of any changes in the Act’s procedural environmental assessment fails to existing water rights.’’ This statement requirements that would take place if distinguish the impact of critical habitat does not meet the standard of utility and the proposed critical habitat is in areas that are presently unoccupied objectivity required by the Data Quality by spikedace and loach minnows. By implemented. In each of the Act. ‘‘Environmental Consequence’’ section erroneously assuming that ‘‘most all’’ of Our Response: We believe the of the various resource categories there the proposed critical habitat is currently statement is accurate based on our past is a detailed description of how the occupied, and will remain occupied experience and section 7 consultation section 7 consultation processes would over the next 20 years, the draft history in the southwest. However, if change if the proposed spikedace and environmental assessment overlooks the commenter feels that the statement significant impacts on land and water loach minnow critical habitat is implemented. The various is not accurate, there is a defined users. process under the Data Quality Act for Our Response: This text is in error ‘‘Environmental Consequence’’ sections requesting a correction. The commenter and has been updated in the draft also contain a listing of potential new can follow the process outlined on our environmental assessment. However, management requirements for each Web site: http://www.fws.gov/ the analysis completed in the draft resource category. These procedural southwest/science/ economic analyses and in the draft changes and potential new management informationquality.html?region=5 under environmental assessment correctly requirements do not give the public any the U.S. Fish and Wildlife Service reflects occupancy status for the river idea of what changes will occur to Information Quality Guidelines. segments within this critical habitat ecosystem health or spikedace and designation. loach minnow habitat if the proposed Required Determinations (222) Comment: There are several critical habitat is implemented. At best additional alternatives that are the current environmental consequences Regulatory Planning and Review— consistent with the purpose and need of determinations infer that by Executive Order 12866 the proposed action and are not too implementing Service control over the The Office of Management and Budget remote, speculative or impractical for management of the federal spikedace (OMB) has determined that this rule is critical review as part of the NEPA and loach minnow critical habitat units not significant and has not reviewed process. (or lands with a Federal nexus), the this rule under Executive Order 12866 Our Response: The scope of physical and biological features for the (Regulatory Planning and Review). OMB reasonable alternatives to be considered spikedace and loach minnow will bases its determination upon the is a function of the purpose and need of improve to the point that the designated following four criteria: the proposed action. This critical habitat areas will again (1) Whether the rule will have an environmental assessment generally somehow sustain a population of the annual effect of $100 million or more on

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the economy or adversely affect an small entities are significant, we impacts associated with the rulemaking economic sector, productivity, jobs, the consider the types of activities that as described in Chapters 3 through 10 environment, or other units of the might trigger regulatory impacts under and Appendix A of the analysis and government. this rule, as well as the types of project evaluates the potential for economic (2) Whether the rule will create modifications that may result. In impacts related to: (1) Mining; (2) inconsistencies with other Federal general, the term ‘‘significant economic Species Management; (3) Tribes; (4) agencies’ actions. impact’’ is meant to apply to a typical Transportation; (5) Fire Management; (3) Whether the rule will materially small business firm’s business (6) Water Management; and (7) Grazing. affect entitlements, grants, user fees, operations. The final economic analysis indicates loan programs or the rights and To determine if the rule could that incremental impacts are not obligations of their recipients. significantly affect a substantial number expected to impact small entities for (4) Whether the rule raises novel legal of small entities, we consider the mining, species management, tribal, or policy issues. number of small entities affected within transportation, or fire management Regulatory Flexibility Act (5 U.S.C. 601 particular types of economic activities activities. et seq.) (e.g., water use and management, The final economic analysis indicates grazing, mining, species management that incremental impacts associated Under the Regulatory Flexibility Act and recreational fishing, development, with water management, grazing, and (RFA; 5 U.S.C. 601 et seq.), as amended transportation, fire management, and development may potentially be borne by the Small Business Regulatory tribal activities). We apply the by small entities. The entities Enforcement Fairness Act (SBREFA) of ‘‘substantial number’’ test individually potentially affected under water 1996 (5 U.S.C. 801 et seq.), whenever an to each industry to determine if management include cotton farming, agency must publish a notice of certification is appropriate. However, hay farming, cotton ginning, and food rulemaking for any proposed or final the SBREFA does not explicitly define manufacturing. The potential rule, it must prepare and make available ‘‘substantial number’’ or ‘‘significant incremental costs to water management for public comment a regulatory economic impact.’’ Consequently, to activities that may be borne by small flexibility analysis that describes the assess whether a ‘‘substantial number’’ entities are estimated at $125,000 to effects of the rule on small entities of small entities is affected by these $252,000 on an annualized basis (small businesses, small organizations, designations, this analysis considers the (discounted at seven percent) over the and small government jurisdictions). relative number of small entities likely next 20 years. The final economic However, no regulatory flexibility to be impacted in an area. In some analysis indicates of the 312 entities in analysis is required if the head of an circumstances, especially with critical this sector, 47 (or 15 percent) that may agency certifies the rule will not have a habitat designations of limited extent, be small entities may be affected. If each significant economic impact on a we may aggregate across all industries of them are small and each undergoes substantial number of small entities. and consider whether the total number section 7 consultation, annualized The SBREFA amended the RFA to of small entities affected is substantial. impacts per small entity would be require Federal agencies to provide a In estimating the number of small expected to range from 0.16 to 0.32 certification statement of the factual entities potentially affected, we also percent of annual revenues. Based on basis for certifying that the rule will not consider whether their activities have our analysis, we have determined that have a significant economic impact on any Federal involvement. there will not be a significant impact to a substantial number of small entities. Designation of critical habitat only small businesses in this sector. In this final rule, we are certifying that affects activities authorized, funded, or Grazing entities potentially affected the critical habitat designations for carried out by Federal agencies. Some by the critical habitat rule include beef spikedace and loach minnow will not kinds of activities are unlikely to have cattle ranching and farming. The final have a significant economic impact on any Federal involvement and so will not economic analysis indicates of the 147 a substantial number of small entities. be affected by critical habitat entities in this sector, 33 (or 22 percent) The following discussion explains our designation. In areas where the species small entities may be affected. rationale. is present, Federal agencies already are Incremental costs to small grazing According to the Small Business required to consult with us under entities are estimated at $20,300 to Administration, small entities include section 7 of the Act on activities they $295,000 on an annualized basis. small organizations, such as authorize, fund, or carry out that may Assuming that all 33 entities were to independent nonprofit organizations; affect the spikedace or loach minnow. undergo section 7 consultation, and all small governmental jurisdictions, Federal agencies also must consult with of the entities are small, annualized including school boards and city and us if their activities may affect critical impacts per small entity are expected to town governments that serve fewer than habitat. Designation of critical habitat, range from 0.08 to 1.18 percent of 50,000 residents; as well as small therefore, could result in an additional annual revenues. Based on our analysis, businesses. Small businesses include economic impact on small entities due we have determined that there will not manufacturing and mining concerns to the requirement to reinitiate be a significant impact to small with fewer than 500 employees, consultation for ongoing Federal businesses in this sector. wholesale trade entities with fewer than activities (see Application of the Development entities potentially 100 employees, retail and service ‘‘Adverse Modification Standard’’ affected by the critical habitat businesses with less than $5 million in section). designations could include new single- annual sales, general and heavy In our final economic analysis of the family housing, new multifamily construction businesses with less than critical habitat designations, we housing construction, new housing $27.5 million in annual business, evaluated the potential economic effects operative builders, and land special trade contractors doing less than on small business entities resulting from subdivision. The final economic $11.5 million in annual business, and conservation actions related to the analysis indicates of the 4,673 entities agricultural businesses with annual designations of critical habitat for in this sector, that four (or 0.9 percent) sales less than $750,000. To determine spikedace and loach minnow. The entities could be affected. Incremental if potential economic impacts on these analysis is based on the estimated costs to small development firms are

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estimated to range from $0 to $77,000 ‘‘Federal private sector mandates.’’ produce a Federal mandate of $100 on an annualized basis. Assuming that These terms are defined in 2 U.S.C. million or greater in any year; that is, it impacts are borne by four small entities 658(5)–(7). ‘‘Federal intergovernmental is not a ‘‘significant regulatory action’’ that undergo section 7 consultation, mandate’’ includes a regulation that under the Unfunded Mandates Reform annualized impacts are anticipated to ‘‘would impose an enforceable duty Act. The designation of critical habitat range from 0 to 0.30 percent of annual upon State, local, or tribal governments’’ imposes no obligations on State or local revenues. Based on our analysis, we with two exceptions. It excludes ‘‘a governments. By definition, Federal have determined that there will not be condition of Federal assistance.’’ It also agencies are not considered small a significant impact to small businesses excludes ‘‘a duty arising from entities, although the activities they in this sector. participation in a voluntary Federal fund or permit may be proposed or In summary, we have considered program,’’ unless the regulation ‘‘relates carried out by small entities. whether the proposed designation to a then-existing Federal program In the past, local county governments would result in a significant economic under which $500,000,000 or more is have indicated a concern in the impact on a substantial number of small provided annually to State, local, and perceived regulatory burden imposed by entities. Information for this analysis tribal governments under entitlement critical habitat designation on was gathered from the Small Business authority,’’ if the provision would management issues within the county, Administration, stakeholders, and the ‘‘increase the stringency of conditions of and particularly in relation to public Service. For the above reasons and assistance’’ or ‘‘place caps upon, or safety issues such as bridge and road based on currently available otherwise decrease, the Federal repair or flood management. These information, we certify that, if Government’s responsibility to provide counties have indicated that State promulgated, the designations of critical funding,’’ and the State, local, or tribal agencies might opt not to complete habitat for spikedace and loach minnow governments ‘‘lack authority’’ to adjust necessary repairs or management would not have a significant economic accordingly. At the time of enactment, activities, or would not pursue Federal impact on a substantial number of small these entitlement programs were: funding to address these issues if such business entities. Therefore, regulatory Medicaid; Aid to Families with actions could trigger a section 7 flexibility analysis is not required. Dependent Children work programs; consultation. We note that not all Energy Supply, Distribution, or Use— Child Nutrition; Food Stamps; Social actions would necessarily trigger section Executive Order 13211 Services Block Grants; Vocational 7 consultation unless a Federal nexus Rehabilitation State Grants; Foster Care, exists. Where a Federal nexus does Executive Order 13211 (Actions Adoption Assistance, and Independent Concerning Regulations That exist, the county or state have options Living; Family Support Welfare to facilitate the section 7 process. Significantly Affect Energy Supply, Services; and Child Support Programmatic consultations can provide Distribution, or Use) requires agencies Enforcement. ‘‘Federal private sector the planning agency with a long-term to prepare Statements of Energy Effects mandate’’ includes a regulation that ability to affect repairs as needed over when undertaking certain actions. OMB ‘‘would impose an enforceable duty a specified length of time, without has provided guidance for upon the private sector, except (i) a repeating the section 7 process. In implementing this Executive Order that condition of Federal assistance or (ii) a addition, the Service has emergency outlines nine outcomes that may duty arising from participation in a consultation procedures so that any constitute ‘‘a significant adverse effect’’ voluntary Federal program.’’ when compared to not taking the The designation of critical habitat management entity can carry out regulatory action under consideration. does not impose a legally binding duty necessary actions in which lives or The economic analysis finds that none on non-Federal Government entities or property are in danger without first of these criteria are relevant to this private parties. Under the Act, the only completing section 7 consultation. Once analysis. Thus, based on information in regulatory effect is that Federal agencies the emergency is handled, section 7 the economic analysis, there are no must ensure that their actions do not consultation can be completed. As such, expected energy-related impacts destroy or adversely modify critical a Small Government Agency Plan is not associated with designations of critical habitat under section 7. While non- required. habitat for spikedace and loach Federal entities that receive Federal Takings—Executive Order 12630 minnow. As such, the designation of funding, assistance, or permits, or that critical habitat is not expected to otherwise require approval or In accordance with Executive Order significantly affect energy supplies, authorization from a Federal agency for 12630 (Government Actions and distribution, or use. Therefore, this an action, may be indirectly impacted Interference with Constitutionally action is not a significant energy action, by the designation of critical habitat, the Protected Private Property Rights), we and no Statement of Energy Effects is legally binding duty to avoid have analyzed the potential takings required. destruction or adverse modification of implications of designating critical critical habitat rests squarely on the habitat for spikedace and loach minnow Unfunded Mandates Reform Act Federal agency. Furthermore, to the in a takings implications assessment. (2 U.S.C. 1501 et seq.) extent that non-Federal entities are Critical habitat designation does not In accordance with the Unfunded indirectly impacted because they affect landowner actions that do not Mandates Reform Act (2 U.S.C. 1501 et receive Federal assistance or participate require Federal funding or permits, nor seq.), we make the following findings: in a voluntary Federal aid program, the does it preclude development of habitat (1) This rule will not produce a Unfunded Mandates Reform Act would conservation programs or issuance of Federal mandate. In general, a Federal not apply, nor would critical habitat incidental take permits to permit actions mandate is a provision in legislation, shift the costs of the large entitlement that do require Federal funding or statute, or regulation that would impose programs listed above onto State permits to go forward. The takings an enforceable duty upon State, local, or governments. implications assessment concludes that tribal governments, or the private sector, (2) We do not believe that this rule these designations of critical habitat for and includes both ‘‘Federal will significantly or uniquely affect spikedace and loach minnow do not intergovernmental mandates’’ and small governments because it will not pose significant takings implications for

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lands within or affected by the spikedace and loach minnow within the including: Water resources; wetlands designations. designated areas to assist the public in and floodplains, natural resources (fish, understanding the habitat needs of the wildlife and plants), land use and Federalism—Executive Order 13132 species. management, Wildland fire In accordance with Executive Order management, recreation, 13132 (Federalism), this rule does not Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) socioeconomics, tribal trust resources, have significant Federalism effects. A and environmental justice. The scope of Federalism assessment is not required. This rule does not contain any new the effects were primarily limited to In keeping with Department of the collections of information that require those activities involving Federal Interior and Department of Commerce approval by OMB under the Paperwork actions, because critical habitat policy, we requested information from, Reduction Act of 1995 (44 U.S.C. 3501 designation does not have any impact and coordinated development of, this et seq.). This rule will not impose on the environment other than through critical habitat designation with recordkeeping or reporting requirements the section 7 consultation process under appropriate State resource agencies in on State or local governments, the Act which is conducted for Federal Arizona and New Mexico. We received individuals, businesses, or actions. Private actions that have no comments from both States and have organizations. An agency may not Federal involvement are not affected by addressed them in the Summary of conduct or sponsor, and a person is not critical habitat designation. Comments and Recommendations required to respond to, a collection of section of the rule. The designations of information unless it displays a Based on the review and evaluation of critical habitat in areas currently currently valid OMB control number. the information contained in the occupied by spikedace and loach environmental assessment, we National Environmental Policy Act minnow may impose few additional determined that the designations of (42 U.S.C. 4321 et seq.) regulatory restrictions to those currently critical habitat for spikedace and loach in place and, therefore, may have little It is our position that, outside the minnow do not constitute a major incremental impact on State and local jurisdiction of the U.S. Court of Appeals Federal action having a significant governments and their activities. The for the Tenth Circuit, we do not need to impact on the human environment designations may have some benefit to prepare environmental analyses under the meaning of section 102(2)(c) these governments in that the areas that pursuant to the NEPA (42 U.S.C. 4321 of NEPA. contain the physical and biological et seq.) in connection with designating Pursuant to the Council on features essential to the conservation of critical habitat under the Act. We Environmental Quality regulations for the species are more clearly defined, published a notice outlining our reasons implementing NEPA, preparation of an and the elements of the features of the for this determination in the Federal environmental impact statement is habitat necessary to the conservation of Register on October 25, 1983 (48 FR required if an action is determined to the species are specifically identified. 49534). This position was upheld by the significantly affect the quality of the This information does not alter where U.S. Court of Appeals for the Ninth human environment (40 CFR 1502.3). and what federally sponsored activities Circuit (Douglas County v. Babbitt, 48 Significance is determined by analyzing may occur. However, it may assist local F.3d 1495 (9th Cir. 1995), cert. denied the context and intensity of a proposed governments in long-range planning 516 U.S. 1042 (1996)). action (40 CFR 1508.27). Context refers (rather than having them wait for case- However, when the range of the to the setting of the proposed action and by-case section 7 consultations to species includes States within the Tenth includes consideration of the affected occur). Circuit, such as that of spikedace and region, affected interests, and locality Where State and local governments loach minnow, under the Tenth Circuit (40 CFR 1508.27[a]). The context of both require approval or authorization from a ruling in Catron County Board of short- and long-term effects of critical Federal agency for actions that may Commissioners v. U.S. Fish and Wildlife habitat designations are the critical affect critical habitat, consultation Service, 75 F.3d 1429 (10th Cir. 1996), habitat units in Apache, Cochise, Gila, under section 7(a)(2) would be required. we will undertake a NEPA analysis for Graham, Greenlee, Pinal, and Yavapai While non-Federal entities that receive the critical habitat designations and Counties, Arizona, and Catron, Grant, Federal funding, assistance, or permits, notify the public of the availability of and Hidalgo Counties, New Mexico, or that otherwise require approval or the draft environmental assessment for totaling about 1,168 km (726 mi) for authorization from a Federal agency for the critical habitat designations when it spikedace, and (742 mi) for loach an action, may be indirectly impacted is finished. minnow. The effects of critical habitat by the designations of critical habitat, We performed the NEPA analysis, and designation at this scale, although long- the legally binding duty to avoid drafts of the environmental assessment term, would be small. Intensity refers to destruction or adverse modification of were available for public comment on the severity of an impact and is critical habitat rests squarely on the October 4, 2011 (76 FR 61330). The final evaluated by considering ten factors Federal agency. environmental assessment has been (40 CFR 1508.27[b]). completed and is available for review Civil Justice Reform—Executive Order with the publication of this final rule. The intensity of potential impacts that 12988 You may obtain a copy of the final may result from designations of critical In accordance with Executive Order environmental assessment online at habitat for the spikedace and loach 12988 (Civil Justice Reform), the http://www.regulations.gov, by mail minnow under the proposed action is regulation meets the applicable from the Arizona Ecological Services not anticipated to be significant. This standards set forth in sections 3(a) and Field Office (see ADDRESSES), or by conclusion is reached based on the 3(b)(2) of the Order. We are designating visiting our Web site at http:// following findings in the environmental critical habitat in accordance with the www.fws.gov/southwest/es/Arizona/. assessment: provisions of the Act. This final rule The final environmental assessment (1) The potential impacts on uses standard property descriptions and included a detailed analysis of the environmental resources may be both identifies the physical and biological potential effects of the critical habitat beneficial and adverse, but would features essential to the conservation of designations on resource categories, generally be minor.

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(2) There would be negligible to occur within the designations. The White Mountain Apache Tribe—We minor impacts on public health or safety coordination efforts with the tribes are coordinated early with the White from designations of critical habitat. described below, and additional detail Mountain Apache Tribe regarding the (3) The increased risks of wildland on the exclusions of each are provided critical habitat designations. A fire or flooding was analyzed and above in the Exclusions section. coordination meeting was held in determined to be minor. Yavapai-Apache Nation—We October 2010 to gain a better (4) Potential impacts from critical coordinated early with the Yavapai- understanding of any concerns White habitat designations on the quality of Apache Nation on the proposed rule for Mountain Apache Tribe might have the environment are unlikely to be spikedace and loach minnow critical regarding the upcoming proposed rule highly controversial. habitat. A coordination meeting was for spikedace and loach minnow critical (5) Designation of critical habitat for held in October 2010 to gain a better habitat. Representatives of the White spikedace and loach minnow is not a understanding of Tribal positions and Mountain Apache Tribe attended the precedent-setting action with significant concerns regarding the designations. We public hearing in October of 2011. We effects. have maintained contact with the Tribe subsequently received comments from (6) Designation of critical habitat through letters, phone calls, and emails, White Mountain Apache Tribe on the would not result in significant and have provided the Tribe with notice proposed rule, including the request for cumulative impacts. of publication dates of various a 4(b)(2) exclusion and a copy of their (7) Designation of critical habitat is documents. We received comments Loach Minnow Management Plan. Their not likely to affect sites, objects, or from the Tribe during the first open comment letter and management plan structures of historical, scientific, or comment period. Their comment letter detail various conservation measures cultural significance because Federal provided a copy of Tribal Resolution that will benefit loach minnow, and State laws enacted to protect and 46–2006, which details the development including adoption of various preserve those resources would address exclusion zone they have created for the ordinances, hiring of key personnel, and any such potential impacts. 100-year floodplain of the Verde River, contingency plans for disaster (8) The critical habitat designations where it crosses their lands. In addition, management. would have long-term, beneficial in their comment letter, the Tribe impacts for spikedace and loach After reviewing their comment letter detailed the actions they have taken in minnow. and management plan, and in (9) Critical habitat designations would the past several years under the recognition of our special Tribal not violate any Federal, State, or local resolution for protection of the Verde relationship with White Mountain laws or requirements imposed for the River, as noted above in the Exclusions Apache Tribe, we determined that protection of the environment. section. We have determined that the benefits of exclusion of the mainstem The effects of critical habitat benefits of excluding lands on the White River and East Fork White River designations at this scale would be Yavapai-Apache Nation outweigh the outweighed the benefits of including it insignificant. Therefore, we found that benefits of including these areas. in the designations of critical habitat for the designations will not significantly San Carlos Apache Tribe—The San the species. Carlos Apache Tribe submitted affect the quality of the human References Cited environment and an environmental comments during the second comment impact statement is not required. period. Within their comment letter the A complete list of all references cited Tribe notes their adherence to TEK, is available on the Internet at http:// Government-to-Government which is an ecosystem-based approach www.regulations.gov and upon request Relationship With Tribes to land and species management; their from the Arizona Ecological Services In accordance with the President’s 2005 Fishery Management Plan; Office (see FOR FURTHER INFORMATION memorandum of April 29, 1994 development of various codes and CONTACT). regulations that benefit the species and/ (Government-to-Government Relations Author(s) with Native American Tribal or their habitat; and a commitment to no Governments; 59 FR 22951), Executive longer stocking nonnative sportfish in The primary authors of this Order 13175 (Consultation and the Eagle Creek watershed. rulemaking are the staff members of the Coordination with Indian Tribal As noted in the Exclusions section Arizona Ecological Services Office. Governments), and the Department of above, we find that the Tribe’s lands List of Subjects in 50 CFR Part 17 the Interior’s manual at 512 DM 2, we should be excluded on the basis of our readily acknowledge our responsibility relationship with the Tribe, the goals of Endangered and threatened species, to communicate meaningfully with the FMP, and the information provided Exports, Imports, Reporting and recognized Federal Tribes on a during the second comment period. The recordkeeping requirements, government-to-government basis. In Tribe has focused on known areas of Transportation. accordance with Secretarial Order 3206 concern for the species management, Regulation Promulgation of June 5, 1997 (American Indian Tribal and has discontinued stocking of Rights, Federal-Tribal Trust nonnative fishes in the Bonita and Eagle Accordingly, we amend part 17, Responsibilities, and the Endangered Creek watersheds. The FMP contains subchapter B of chapter I, title 50 of the Species Act), we readily acknowledge goals of conserving and enhancing Code of Federal Regulations, as set forth our responsibilities to work directly native fishes on the Reservation; below: with tribes in developing programs for restoring native fishes and their healthy ecosystems, to acknowledge that habitats; and preventing, minimizing or PART 17—[AMENDED] tribal lands are not subject to the same mitigating impacts to native fishes, controls as Federal public lands, to among others. In addition, the Tribe has ■ 1. The authority citation for part 17 remain sensitive to Indian culture, and indicated that, through TEK, they continues to read as follows: to make information available to tribes. practice an ecosystem-based approach Authority: 16 U.S.C. 1361–1407; 16 U.S.C. For spikedace and loach minnow, to land and species based management 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– tribal lands associated with three tribes and preservation. 625, 100 Stat. 3500; unless otherwise noted.

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■ 2. Amend § 17.11(h) by revising the of Endangered and Threatened Wildlife § 17.11 Endangered and threatened entries for ‘‘Minnow, loach’’ and to read as follows: wildlife. ‘‘Spikedace’’ under ‘‘Fishes’’ in the List * * * * * (h) * * *

Species Vertebrate popu- Historic range lation where endan- Status When listed Critical Special Common name Scientific name gered or threatened habitat rules

******* FISHES

******* Minnow, loach ...... Tiaroga cobitis ...... U.S.A. (AZ, NM), Entire ...... E 247 17.95(e) NA Mexico.

******* Spikedace ...... Meda fulgida ...... U.S.A. (AZ, NM), Entire ...... E 236 17.95(e) NA Mexico.

*******

■ 3. In § 17.44, remove and reserve Appropriate microhabitat types include periodic flooding or, if flows are paragraphs (p) and (q). pools, runs, riffles, and rapids over modified or regulated, a flow regime ■ 4. In § 17.95, amend paragraph (e) by sand, gravel, cobble, and rubble that allows for adequate river functions, revising the entries for ‘‘Loach Minnow substrates with low or moderate such as flows capable of transporting (Tiaroga cobitis)’’ and ‘‘Spikedace amounts of fine sediment and substrate sediments. (Meda fulgida),’’ to read as follows: embeddedness. Appropriate habitats (3) Critical habitat does not include § 17.95 Critical habitat—fish and wildlife. have a low stream gradient of less than manmade structures (such as buildings, 2.5 percent and are at elevations below * * * * * aqueducts, runways, roads, and other 2,500 m (8,202 ft). Water temperatures paved areas) and the land on which they (e) Fishes. should be in the general range of 8.0 to * * * * * ° ° are located existing within the legal 25.0 C (46.4 to 77 F). boundaries on the effective date of this Loach Minnow (Tiaroga cobitis) (ii) An abundant aquatic insect food rule. We have determined that all base consisting of mayflies, true flies, (1) Critical habitat units are depicted designated areas contain at least one black flies, caddis flies, stoneflies, and for Apache, Cochise, Gila, Graham, PCE for loach minnow. dragonflies. Greenlee, Pinal, and Yavapai Counties, (4) Critical habitat map units. Data Arizona, and for Catron, Grant, and (iii) Streams with no or no more than low levels of pollutants. layers defining map units were created Hidalgo Counties, New Mexico, on the on a base of USGS 7.5′ quadrangles maps below. (iv) Perennial flows or interrupted stream courses that are periodically along with shapefiles generated by the (2) Within these areas, the primary Arizona Land Resource Information constituent elements (PCE) of the dewatered but that serve as connective corridors between occupied or Service for land ownership, streams, physical or biological features essential counties, and the Public Land Survey to the conservation of loach minnow seasonally occupied habitat and through System. Information on species consist of six components: which the species may move when the (i) Habitat to support all egg, larval, habitat is wetted. locations was derived from databases juvenile, and adult loach minnow. This (v) No nonnative aquatic species, or developed by the Arizona Game and habitat includes perennial flows with a levels of nonnative aquatic species that Fish Department, the New Mexico stream depth of generally less than 1 m are sufficiently low to allow persistence Department of Game and Fish, and (3.3 ft), and with slow to swift flow of loach minnow. Arizona State University. velocities between 0 and 80 cm per (vi) Streams with a natural, (5) Note: Index map follows: second (0.0 and 31.5 in. per second). unregulated flow regime that allows for BILLING CODE 4310–55–P

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(6) Unit 1: Verde River Subbasin, Nation, which is excluded from this confluence with the Verde River in Yavapai County, Arizona. designation. Township 15 North, Range 4 East, (i) Verde River for approximately (ii) Granite Creek for approximately southeast quarter of section 20 upstream 118.5 km (73.6 mi), extending from the 3.2 km (2.0 mi), extending from the to the confluence with an unnamed confluence with Beaver and Wet Beaver confluence with the Verde River in tributary from the south in Township 17 Creek in Township 14 North, Range 5 Township 17 North, Range 2 West, North, Range 5 East, southeast quarter of East, southeast quarter of section 30 northeast quarter of section 14 upstream the northeast quarter of section 24. upstream to Sullivan Dam in Township to a spring in Township 17 North, Range (iv) Beaver Creek and Wet Beaver 17 North, Range 2 West, northwest 2 West, southwest quarter of the Creek for approximately 33.3 km (20.7 quarter of section 15. This mileage does southwest quarter of section 13. mi), extending from the confluence with not include the 1.2 km (0.8 mi) (iii) Oak Creek for approximately 54.3 the Verde River in Township 14 North, belonging to the Yavapai-Apache km (33.7 mi), extending from the Range 5 East, southeast quarter of

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section 30 upstream to the confluence the Yavapai-Apache Nation, which is section 25 upstream to the old Fossil with Casner Canyon in Township 15 excluded from this designation. Diversion Dam site at Township 12 North, Range 6 East, northwest quarter (v) Fossil Creek for approximately North, Range 7 East, southeast quarter of of section 23. This mileage does not 22.2 km (13.8 mi) from its confluence section 14. include the 0.2 km (0.1 mi) belonging to with the Verde River at Township 11 (vi) Note: Map of Unit 1, Verde River North, Range 6 East, northeast quarter of Subbasin follows.

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(7) Unit 2: Salt River Subbasin, North Fork East Fork Black River with an unnamed tributary at Township Apache and Gila Counties, Arizona. extending from the confluence with East 6 North, Range 29 East, southeast (i) East Fork Black River for Fork Black River at Township 5 North, quarter of section 32. approximately 19.1 km (11.9 mi) from Range 29 East, northwest quarter of (iv) Coyote Creek for approximately the confluence with the West Fork Black section 5 upstream to the confluence 3.4 km (2.1 mi) from the confluence River at Township 4 North, Range 28 with an unnamed tributary at Township East, southeast quarter of section 11 with East Fork Black River at Township 6 North, Range 29 East, center of Section 5 North, Range 29 East, northeast upstream to the confluence with an 30. unnamed tributary approximately 0.82 quarter of section 8 upstream to an km (0.51 mi) downstream of the (iii) Boneyard Creek for unnamed confluence at Township 5 Boneyard Creek confluence at Township approximately 2.3 km (1.4 mi) North, Range 29 East, northwest quarter 5 North, Range 29 East, northwest extending from the confluence with the of section 10. quarter of Section 5. East Fork Black River at Township 5 (v) Note: Map of Unit 2, Salt River (ii) North Fork East Fork Black River North, Range 29 East, SW quarter of Subbasin follows. for approximately 7.1 km (4.4 mi) of the section 5 upstream to the confluence

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(8) Unit 3: San Pedro River Subbasin, southeast quarter of the northeast with Aravaipa Creek at Township 6 Cochise, Pinal, and Graham Counties, quarter of section 35. South, Range 19 East, section 19 Arizona. (ii) Deer Creek—3.7 km (2.3 mi) of the upstream to the confluence with Oak (i) Aravaipa Creek for approximately creek extending from the confluence Grove Canyon at Township 6 South, 44.9 km (27.9 mi) extending from the with Aravaipa Creek at Township 6 Range 19 east, section 32. confluence with the San Pedro River in South, Range 18 East, section 14 (iv) Hot Springs Canyon for Township 7 South, Range 16 East, upstream to the boundary of the approximately 9.3 km (5.8 mi) Aravaipa Wilderness at Township 6 center of section 9 upstream to the extending from the confluence with South, range 19 East, section 18. confluence with Stowe Gulch in Bass Canyon in Township 12 South, Township 6 South, Range 19 East, (iii) Turkey Creek—4.3 km (2.7 mi) of Range 20 East, northeast quarter of the creek extending from the confluence section 36 downstream to Township 12

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South, Range 20 East, southeast quarter Canyon in Township 11 South, Range confluence with Pine Canyon in of section 32. 20 East, northwest quarter of section 28. Township 12 South, Range 21 East, (v) Redfield Canyon for approximately (vi) Bass Canyon for approximately center of section 20. 6.5 km (4.0 mi) extending from 5.5 km (3.4 mi) from the confluence (vii) Note: Map of Unit 3, San Pedro Township 11 South, Range 19 East, with Hot Springs Canyon in Township River Subbasin follows. northeast quarter of section 36 upstream 12 South, Range 20 East, northeast to the confluence with Sycamore quarter of section 36 upstream to the

(9) Unit 4: Bonita Creek Subbasin, (i) Bonita Creek for approximately with the Gila River in Township 6 Graham County, Arizona. 23.8 km (14.8 mi) from the confluence South, Range 28 East, southeast quarter

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of section 21 upstream to the confluence South, Range 27 East, southeast quarter (ii) Note: Map of Unit 4, Bonita Creek with Martinez Wash in Township 4 of section 27. Subbasin follows.

(10) Unit 5: Eagle Creek Subbasin, of the northwest quarter of section 23 Freeport-McMoRan, which is excluded Graham and Greenlee Counties, upstream to the confluence of East Eagle from this designation. Arizona. Creek in Township 2 North, Range 28 (ii) Note: Map of Unit 5, Eagle Creek (i) Eagle Creek for approximately 26.5 East, southwest quarter of section 20. Subbasin follows. km (16.5 mi) from the Freeport- This mileage does not include McMoRan diversion dam at Township 4 approximately 21.4 km (13.3 mi) of South, Range 28 East, southwest quarter Eagle Creek on lands belonging to

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(11) Unit 6: San Francisco River (8.8 mi) of the San Francisco River on (iii) Negrito Creek for approximately Subbasin, Greenlee County, Arizona and lands belonging to Freeport-McMoRan, 6.8 km (4.2 mi) extending from the Catron County, New Mexico. which is excluded from this confluence with the Tularosa River at (i) San Francisco River for designation. Township 7 South, Range 18 West, approximately 189.5 km (117.7 mi) of (ii) Tularosa River for approximately southwest quarter of the northwest the San Francisco River extending from 30.0 km (18.6 mi) from the confluence quarter of section 19 upstream to the the confluence with the Gila River in with the San Francisco River at confluence with Cerco Canyon at Township 5 South, Range 29 East, Township 7 South, Range 19 West, Township 7 South, Range 18 West, west southeast quarter of section 21 upstream southwest quarter of section 23 boundary of section 22. to the northern boundary of Township upstream to the town of Cruzville at (iv) Whitewater Creek for 6 South, Range 19 West, section 2. This Township 6 South, Range 18 West, approximately 1.9 km (1.2 mi) from the mileage includes approximately 14.1 km southern boundary of section 1. confluence with the San Francisco River

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at Township 11 South, Range 20 West, Township 11 South, Range 20 West, (v) Note: Map of Unit 6, San Francisco Section 27 upstream to the confluence southeast quarter of section 23. River Subbasin follows. with Little Whitewater Creek at

(12) Unit 7: Blue River Subbasin, of section 31 upstream to the confluence Blue Creeks at Township 7 South, Range Greenlee County, Arizona, and Catron of Campbell Blue and Dry Blue creeks 21 West, southeast quarter of section 6 County, New Mexico. at Township 7 South, Range 21 West, to the confluence with Coleman Canyon (i) Blue River for approximately 81.4 southeast quarter of section 6. in Township 4.5 North, Range 31 East, km (50.6 mi) from the confluence with (ii) Campbell Blue Creek for southwest quarter of the northeast the San Francisco River at Township 2 approximately 12.4 km (7.7 mi) from the quarter of section 32. South, Range 31 East, southeast quarter confluence of Dry Blue and Campbell

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(iii) Little Blue Creek for section 28 upstream to a barrier falls at northeast quarter of the southwest approximately 5.1 km (3.1 mi) from the Township 6 South, Range 21 West, quarter of section 8. confluence with the Blue River at northeast quarter of section 29. (vi) Dry Blue Creek for approximately Township 1 South, Range 31 East, (v) Frieborn Creek for approximately 4.7 km (3.0 mi) from the confluence center of section 5 upstream to the 1.8 km (1.1 mi) from the confluence with Campbell Blue Creek at Township mouth of a canyon at Township 1 North, 7 South, Range 21 West, southeast with Dry Blue Creek at Township 7 Range 31 East, northeast quarter of quarter of Section 6 upstream to the South, Range 21 West, southwest section 29. confluence with Pace Creek in (iv) Pace Creek for approximately 1.2 quarter of the northwest quarter of Township 6 South, Range 21 West, km (0.8 mi) from the confluence with section 5 upstream to an unnamed southwest quarter of section 28. Dry Blue Creek at Township 6 South, tributary flowing from the south in (vii) Note: Map of Unit 7, Blue River Range 21 West, southwest quarter of Township 7 South, Range 21 West, Subbasin follows.

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(13) Unit 8: Gila River Subbasin, Township 12 South, Range 14 West, east the eastern boundary of section 3 Catron, Grant, and Hidalgo Counties, boundary of Section 21. upstream to the confluence with New Mexico. (iii) Middle Fork Gila River for Blacksmith Canyon at Township 17 approximately 19.1 km (11.9 mi) of the (i) Gila River for approximately 153.5 South, Range 17 West, northwest Middle Fork Gila River extending from km (95.4 mi) from the confluence with quarter of section 3. This mileage does the confluence with West Fork Gila not include approximately 7.9 km (4.9 Moore Canyon at Township 18 South, River at Township 12 South, Range 14 mi) of Mangas Creek on lands belonging Range 21 West, southeast quarter of the West, southwest quarter of section 25 to Freeport-McMoRan, which are southwest quarter of section 32 upstream to the confluence of Brothers excluded from the designation. upstream to the confluence of the East West Canyon in Township 11 South, and West Forks of the Gila River at (vi) Bear Creek for approximately 29.5 Range 14 West, northeast quarter of km (18.4 mi) extending from Township Township 13 South, Range 13 West, section 33. 15 South, Range 17 West, eastern center of section 8. This mileage does (iv) East Fork Gila River for boundary of section 33 upstream to the not include approximately 11.5 km (7.2 approximately 42.1 km (26.2 mi) confluence with Sycamore and North mi) of the Gila River on lands owned by extending from the confluence with West Fork Gila River at Township 13 Fork Walnut Creek at Township 16 Freeport-McMoRan, which is excluded South, Range 15 West, eastern boundary from this designation. South, Range 13 West, center of section 8 upstream to the confluence of Beaver of section 15. This designation does not (ii) West Fork Gila River for and Taylor Creeks in Township 11 include approximately 1.9 km (1.2 mi) approximately 13.0 km (8.1 mi) from the South, Range 12 West, northeast quarter of Bear Creek on lands belonging to confluence with the East Fork Gila River of section 17. Freeport-McMoRan, which are excluded at Township 13 South, Range 13 West, (v) Mangas Creek for approximately from this designation. center of Section 8 upstream to the 1.2 km (0.8 mi) extending from (vii) Note: Map of Unit 8, Gila River confluence with EE Canyon at Township 17 South, Range 17 West, at Subbasin follows.

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Spikedace (Meda fulgida) have a low gradient of less than that allows for adequate river functions, (1) Critical habitat units are depicted approximately 1.0 percent, at elevations such as flows capable of transporting for Cochise, Gila, Graham, Greenlee, below 2,100 m (6,890 ft). Water sediments. Pinal, and Yavapai Counties, Arizona, temperatures should be in the general (3) Critical habitat does not include and for Catron, Grant, and Hidalgo range of 8.0 to 28.0 °C (46.4 to 82.4 °F). manmade structures (such as buildings, Counties, New Mexico, on the maps (ii) An abundant aquatic insect food aqueducts, runways, roads, and other below. base consisting of mayflies, true flies, paved areas) and the land on which they (2) Within these areas, the primary black flies, caddis flies, stoneflies, and are located existing within the legal constituent elements (PCE) of the dragonflies. boundaries on the effective date of this physical or biological features essential (iii) Streams with no or no more than rule. We have determined that all to the conservation of spikedace consist low levels of pollutants. designated areas contain at least one of six components: (iv) Perennial flows, or interrupted PCE for spikedace. (i) Habitat to support all egg, larval, stream courses that are periodically (4) Critical habitat map units. Data juvenile, and adult spikedace. This dewatered but that serve as connective layers defining map units were created habitat includes perennial flows with a corridors between occupied or on a base of USGS 7.5′ quadrangles stream depth generally less than 1 m seasonally occupied habitat and through along with shapefiles generated by the (3.3 ft), and with slow to swift flow which the species may move when the Arizona Land Resource Information velocities between 5 and 80 cm per habitat is wetted. Service for land ownership, streams, second (1.9 and 31.5 in. per second). (v) No nonnative aquatic species, or counties, and the Public Land Survey Appropriate stream microhabitat types levels of nonnative aquatic species that System. Information on species include glides, runs, riffles, the margins are sufficiently low as to allow locations was derived from databases of pools and eddies, and backwater persistence of spikedace. developed by the Arizona Game and components over sand, gravel, and (vi) Streams with a natural, Fish Department, the New Mexico cobble substrates with low or moderate unregulated flow regime that allows for Department of Game and Fish, and amounts of fine sediment and substrate periodic flooding or, if flows are Arizona State University. embeddedness. Appropriate habitat will modified or regulated, a flow regime (5) Note: Index map follows:

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(6) Unit 1: Verde River Subbasin, excluded from this designation. Granite southeast quarter section 20 upstream to Yavapai County, Arizona. Creek for approximately 3.2 km (2.0 mi), the confluence with an unnamed (i) Verde River for approximately extending from the confluence with the tributary from the south in Township 17 170.6 km (105.9 mi), extending from the Verde River in Township 17 North, North, Range 5 East, southeast quarter of confluence with Fossil Creek in Range 2 West, northeast quarter section the northeast quarter of section 24. Township 11 North, Range 6 East, 14 upstream to a spring in Township 17 (iii) Beaver Creek/Wet Beaver Creek northeast quarter of section 25 upstream North, Range 2 West, southwest quarter for approximately 33.3 km (20.7 mi), to Sullivan Dam in Township 17 North, of the southwest quarter of section 13. extending from the confluence with the Range 2 West, northwest quarter of (ii) Oak Creek for approximately 54.3 Verde River in Township 14 North, section 15. This mileage does not km (33.7 mi), extending from the Range 5 East, southeast quarter of include the 1.2 km (0.8 mi) belonging to confluence with the Verde River in section 30 upstream to the confluence the Yavapai-Apache Nation, which is Township 15 North, Range 4 East, with Casner Canyon in Township 15

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North, Range 6 East, northwest quarter Verde River in Township 13 North, with the Verde River at Township 11 of section 23. This mileage does not Range 5 East, center section 21, North, Range 6 East, northeast quarter of include the 0.2 km (0.1 mi) belonging to upstream to the confluence with Black section 25 upstream to the old Fossil the Yavapai-Apache Nation and Mountain Canyon in Township 13 Diversion Dam site at Township 12 excluded from these designations. North, Range 6 East, southeast quarter of North, Range 7 East, southeast quarter of (iv) West Clear Creek for section 17. section 14. approximately 10.9 km (6.8. mi), (v) Fossil Creek for approximately (vi) Note: Map of Unit 1, Verde River extending from the confluence with the 22.2 km (13.8 mi) from its confluence Subbasin follows.

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(7) Unit 2: Salt River Subbasin, Gila to Lime Springs in Township 6 North, southeast quarter of section 36 upstream County, Arizona. Range 12 East, southwest quarter of to the confluence with Sevenmile (i) Tonto Creek for approximately 47.8 section 20. Canyon at Township 8 North, Range 13 km (29.7 mi) extending from the (iii) Rye Creek for approximately 2.8 East, northern boundary of section 20. confluence with Greenback Creek in km (1.8 mi) extending from the (v) Rock Creek for approximately 5.8 Township 5 North, Range 11 East, confluence with Tonto Creek in km (3.6 mi) extending from the northwest quarter of section 8 upstream Township 8 North, Range 10 East, confluence with Spring Creek at to the confluence with Houston Creek in northeast quarter of section 24 upstream Township 8 North, Range 12 East, Township 9 North, Range 11 East, to the confluence with Brady Canyon in southeast quarter of section 1 upstream northeast quarter of section 18. Township 8 North, Range 10 East, (ii) Greenback Creek for northwest quarter of section 14. to the confluence with Buzzard Roost approximately 15.1 km (9.4 mi) from the (iv) Spring Creek for approximately Canyon at Township 8 North, 12 East, confluence with Tonto Creek in 27.2 km (16.9 mi) extending from the center of section 24. Township 5 North, Range 11 East, confluence with the Tonto River at (vi) Note: Map of Unit 2, Salt River northwest quarter of section 8 upstream Township 10 North, Range 11 East, Subbasin follows.

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(8) Unit 3: San Pedro River Subbasin, km (2.3 mi) of the creek extending from Grove Canyon at Township 6 South, Cochise, Graham, and Pinal Counties, the confluence with Aravaipa Creek at Range 19 east, section 32. Arizona. Township 6 South, Range 18 East, (iii) Hot Springs Canyon for (i) Aravaipa Creek for approximately section 14 upstream to the boundary of approximately 9.3 km (5.8 mi) 44.9 km (27.9 mi) extending from the the Aravaipa Wilderness at Township 6 extending from the confluence with confluence with the San Pedro River in South, Range 19 East, section 18. Bass Canyon in Township 12 South, Township 7 South, Range 16 East, (ii) Turkey Creek—4.3 km (2.7 mi) of Range 20 East, northeast quarter of center of section 9 upstream to the the creek extending from the confluence section 36 downstream to Township 12 South, Range 20 East, southeast quarter confluence with Stowe Gulch in with Aravaipa Creek at Township 6 of section 32. Township 6 South, Range 19 East, South, Range 19 East, section 19 southeast quarter of the northeast upstream to the confluence with Oak (iv) Redfield Canyon for quarter of section 35. Deer Creek—3.7 approximately 6.5 km (4.0 mi)

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extending from Township 11 South, (v) Bass Canyon for approximately 5.5 South, Range 21 East, center of section Range 19 East, northeast quarter of km (3.4 mi) from the confluence with 20. section 36 upstream to the confluence Hot Springs Canyon in Township 12 (vi) Note: Map of Unit 3, San Pedro with Sycamore Canyon in Township 11 South, Range 20 East, northeast quarter River Subbasin follows. South, Range 20 East, northwest quarter of section 36 upstream to the confluence of section 28. with Pine Canyon in Township 12

(9) Unit 4: Bonita Creek Subbasin, with the Gila River in Township 6 South, Range 27 East, southeast quarter Graham County, Arizona. South, Range 28 East, southeast quarter of Section 27. (i) Bonita Creek for approximately of section 21 upstream to the confluence (ii) Note: Map of Unit 4, Bonita Creek 23.8 km (14.8 mi) from the confluence with Martinez Wash in Township 4 Subbasin follows.

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(10) Unit 5: Eagle Creek Subbasin, South, Range 28 East, southwest quarter approximately 21.4 km (13.3 mi) of Graham and Greenlee Counties, of the northwest quarter of section 23 Eagle Creek on lands belonging to Arizona. upstream to the confluence of East Eagle Freeport-McMoRan, which is excluded (i) Eagle Creek for approximately 26.5 Creek in Township 2 North, Range 28 from this designation. km (16.5 mi) from the Freeport- East, southwest quarter of section 20. (ii) Note: Map of Unit 5, Eagle Creek McMoRan diversion dam at Township 4 This mileage does not include Subbasin follows.

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(11) Unit 6: San Francisco River the confluence with the Gila River in 14.1 km (8.8 mi) of the San Francisco Subbasin, Greenlee County, Arizona, Arizona in Township 5 South, Range 29 River on lands belonging to Freeport- and Catron County, New Mexico. East, southeast quarter of section 21 McMoRan, which is excluded from this (i) San Francisco River for upstream to Township 6 South, Range designation. approximately 166.7 km (103.5 mi) of 19 West, section 2 in New Mexico. This (ii) Note: Map of Unit 6, San the San Francisco River extending from mileage does include approximately Francisco River Subbasin follows.

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(12) Unit 7: Blue River Subbasin, (ii) Campbell Blue Creek for Township 1 South, Range 31 East, Greenlee County, Arizona, and Catron approximately 12.4 km (7.7 mi) from the center Section 5 upstream to the mouth County, New Mexico. confluence of Dry Blue and Campbell of a canyon at Township 1 North, Range (i) Blue River for approximately 81.4 Blue Creeks at Township 7 South, Range 31 East, northeast quarter of section 29. km (50.6 mi) from the confluence with 21 West, southeast quarter of section 6 (iv) Pace Creek for approximately 1.2 to the confluence with Coleman Canyon the San Francisco River at Township km (0.8 mi) from the confluence with in Township 4.5 North, Range 31 East, 2S., Range 31 East, southeast quarter of Dry Blue Creek at Township 6 South, southwest quarter of the northeast section 31 upstream to the confluence of quarter of section 32. Range 21 West, southwest quarter of Campbell Blue and Dry Blue Creeks at Section 28 upstream to a barrier falls at Township 7 South, Range 21 West, (iii) Little Blue Creek for Township 6 South, Range 21 West, southeast quarter of section 6. approximately 5.1 km (3.1 mi) from the northeast quarter of section 29. confluence with the Blue River at

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(v) Frieborn Creek for approximately Township 7 South, Range 21 West, quarter of Section 6 upstream to the 1.8 km (1.1 mi) from the confluence northeast quarter of southwest quarter of confluence with Pace Creek in with Dry Blue Creek at Township 7 section 8. Township 6 South, Range 21 West, South, Range 21 West, southwest (vi) Dry Blue Creek for approximately southwest quarter of section 28. quarter of the northwest quarter of 4.7 km (3.0 mi) from the confluence (vii) Note: Map of Unit 7, Blue River section 5 upstream to an unnamed with Campbell Blue Creek at Township Subbasin follows. tributary flowing from the south in 7 South, Range 21 West, southeast

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(13) Unit 8: Gila River Subbasin, at Township 13 South, Range 13 West, 8 upstream to the confluence of Beaver Catron, Grant, and Hidalgo Counties, center of section 8 upstream to the and Taylor Creeks in Township 11 New Mexico. confluence with EE Canyon at South, Range 12 West, northeast quarter (i) Gila River for approximately 153.5 Township 12 South, Range 14 West, east of section 17. km (95.4 mi) from the confluence with boundary of Section 21. (v) Mangas Creek for approximately Moore Canyon at Township 18 South, (iii) Middle Fork Gila River for 1.2 km (0.8 mi) extending from Range 21 West, southeast quarter of the approximately 12.5 km (7.7 mi) of the Township 17 South, Range 17 West, at southwest quarter of section 32 Middle Fork Gila River extending from the eastern boundary of section 3 upstream to the confluence of the East the confluence with West Fork Gila upstream to the confluence with and West Forks of the Gila River at River at Township 12 South, Range 14 Township 13 South, Range 13 West, West, southwest quarter of section 25 Blacksmith Canyon at Township 17 center of section 8. This mileage does upstream to the confluence of Big Bear South, Range 17 West, northwest not include approximately 11.5 km (7.2 Canyon in Township 12 South, Range quarter of section 3. This mileage does mi) of the Gila River on lands owned by 14 West, southwest quarter of section 2. not include approximately 7.9 km (4.9 Freeport-McMoRan, which is excluded (iv) East Fork Gila River for mi) of Mangas Creek on lands belonging from this designation. approximately 42.1 km (26.2 mi) to Freeport-McMoRan, which are (ii) West Fork Gila River for extending from the confluence with excluded from the designation. approximately 13.0 km (8.1 mi) from the West Fork Gila River at Township 13 (vi) Note: Map of Unit 8, Gila River confluence with the East Fork Gila River South, Range 13 West, center of section Subbasin follows.

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* * * * * Dated: February 7, 2012. Rachel Jacobson, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2012–3591 Filed 2–22–12; 8:45 am] BILLING CODE 4310–55–C

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Part III

The President

Memorandum of February 17, 2012—Maximizing the Effectiveness of Federal Programs and Functions Supporting Trade and Investment

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Federal Register Presidential Documents Vol. 77, No. 36

Thursday, February 23, 2012

Title 3— Memorandum of February 17, 2012

The President Maximizing the Effectiveness of Federal Programs and Func- tions Supporting Trade and Investment

Memorandum for the Heads of Executive Departments and Agencies

Winning the future and creating an economy that’s built to last will require the Federal Government to wisely allocate scarce resources to maximize efficiency and effectiveness so that it can best support American competitive- ness, innovation, and job growth. Creating good, high-paying jobs in the United States and ensuring sustainable economic growth are the top priorities of my Administration. To accomplish these goals, we must ensure that U.S. businesses increase their exports of goods, services, and agricultural products, and that foreign companies recognize the United States as an attractive place to invest and to open businesses. While this growth will be fueled by the private sector, the Federal Government must do its part to facilitate trade and investment. Executive Order 13534 of March 11, 2010, established the Export Promotion Cabinet to coordinate the development and implementation of the National Export Initiative (NEI) to improve conditions that directly affect the private sector’s ability to export and to help meet my Administration’s goal of doubling exports over 5 years. Pursuant to the terms of the Executive Order, the Export Promotion Cabinet conducts its work in coordination with the Trade Promotion Coordinating Committee (TPCC). The TPCC, chaired by the Secretary of Commerce, was authorized by statute in 1992 (15 U.S.C. 4727) and established by Executive Order 12870 of September 30, 1993. The NEI has used Government resources and policies to increase exports at a pace consistent with the goal of doubling exports by the end of 2014. The NEI has accomplished this by opening up foreign markets for U.S. exports, enhancing enforcement of our trade laws, providing needed export financing, advocating on behalf of U.S. firms, and otherwise facilitating U.S. exports. But we must do more. On January 13, 2012, I announced that I would submit a legislative proposal seeking the authority to reorganize the Federal Government in order to reduce costs and consolidate agencies (Consolidation Authority), and outlined the first use I would make of such authority: to streamline functions currently dispersed across numerous agencies into a single new department to promote competitiveness, exports, and American business. The new department would integrate and streamline trade negotiation, financing, promotion, and enforce- ment functions currently housed at half a dozen executive departments and agencies, and would include an office dedicated to expanding foreign investment and assisting businesses that are considering investing in the United States. In addition to the trade and investment functions, the new department would include integrated small business, technology, innovation, and statistics programs and services from a number of departments and agencies, thereby creating a one-stop shop for businesses that want to grow and export. We cannot afford to wait until the Congress acts, however, and must do all we can administratively to make the most efficient and effective use of the Federal Government’s trade, foreign investment, export, and business programs and functions. Accordingly, to further enhance and coordinate Federal efforts to facilitate the creation of jobs in the United States and ensure sustainable economic growth through trade and foreign investment, and to ensure the effective

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and efficient use of Federal resources in support of these goals, I hereby direct the following: (1) Program Coordination. In coordination with the TPCC, the Export Promotion Cabinet shall develop strategies and initiatives in support of my Administration’s strategic trade and investment goals and priorities, including the specific measures outlined in this memorandum. The Assistant to the President and Deputy National Security Advisor for International Economics shall coordinate the activities of the Export Promotion Cabinet pursuant to this memorandum. Measures and progress shall continue to be reported in the annual National Export Strategy report of the TPCC. The TPCC will continue to function as it has, consistent with its statutorily mandated duties. (2) Improving Customer Service for Exporters. Consistent with my memo- randum of October 28, 2011 (Making it Easier for America’s Small Businesses and America’s Exporters to Access Government Services to Help Them Grow and Hire), the Export Promotion Cabinet shall support the Steering Committee established pursuant to that memorandum in its efforts to create BusinessUSA, a common, open, online platform and web service that will, among other things, enable exporters to seamlessly access information about export-related Government programs, resources, and services regardless of which agency provides them. (3) Trade Budget. The Export Promotion Cabinet shall, in consultation with the TPCC: (a) evaluate the allocation of Federal Government resources to assist with trade financing, negotiation, enforcement, and promotion, as well as the encouragement of foreign investment in the United States, and identify potential savings from streamlining overlapping or duplicative programs, as well as areas in need of additional resources; (b) make recommendations to the Director of the Office of Management and Budget (OMB) for more effective resource allocation to these functions, consistent with my Administration’s strategic trade and investment goals and priorities, including recommendations to streamline overlapping and duplicative programs and reallocate those resources; and (c) present to the Director of OMB for consideration in the annual process for developing the President’s Budget, a proposed unified Federal trade budget, consistent with my Administration’s strategic trade and investment goals and priorities. (4) Coordination of Offices and Staff. The Export Promotion Cabinet, in consultation with the TPCC, shall take steps to ensure the most efficient use of its members’ domestic and foreign offices and distribution networks, including: co-locating offices wherever appropriate; cross-training staff to better serve business customers at home and abroad by promoting exports to foreign countries and foreign investment in the United States; and consid- ering the effectiveness of commercial diplomacy, cross-training, and referrals, as appropriate, when evaluating employee performance. (5) Enhancing Business Competitiveness. Pending passage of legislation providing Consolidation Authority, the Export Promotion Cabinet shall work with the National Economic Council to develop and coordinate administrative initiatives to align and enhance programs that enable and support efforts by American businesses, particularly small businesses, to innovate, grow, and increase exports. (6) General Provisions (a) This memorandum shall be implemented con- sistent with applicable law and subject to the availability of appropriations. (b) Nothing in this memorandum shall be construed to impair or otherwise affect: (i) authority granted by law to a department or agency, or the head thereof; or

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(ii) functions of the Director of OMB relating to budgetary, administrative, or legislative proposals. (c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. (d) The Director of OMB is hereby authorized and directed to publish this memorandum in the Federal Register.

THE WHITE HOUSE, Washington, February 17, 2012

[FR Doc. 2012–4438 Filed 2–22–12; 11:15 am] Billing code 3110–01–P

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Reader Aids Federal Register Vol. 77, No. 36 Thursday, February 23, 2012

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING FEBRUARY

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. 40...... 8751 Presidential Documents 3 CFR Executive orders and proclamations 741–6000 50...... 8751 The United States Government Manual 741–6000 Proclamations: 61...... 10401 8775...... 5373 70...... 8751 Other Services 8776...... 5375 72...... 8751, 9591 Electronic and on-line services (voice) 741–6020 8777...... 5377 429...... 8526 Privacy Act Compilation 741–6064 Executive Orders: 430 ...... 7547, 8178, 8526 Public Laws Update Service (numbers, dates, etc.) 741–6043 13598...... 5371 431...... 7282 TTY for the deaf-and-hard-of-hearing 741–6086 13599...... 6659 13600...... 8713 12 CFR ELECTRONIC RESEARCH Administrative Orders: 741...... 5155 1003...... 8721 World Wide Web Memorandums: 1005...... 6194 Full text of the daily Federal Register, CFR and other publications Memorandum of Ch. XII...... 10351 is located at: www.fdsys.gov. January 18, 2012 ...... 5679 Federal Register information and research tools, including Public Memorandum of Proposed Rules: 630...... 8179 Inspection List, indexes, and links to GPO Access are located at: February 17, 2012 ...... 10935 703...... 5416 www.ofr.gov. Notices: Notice of February 3, 741...... 4927 E-mail 2012 ...... 5985 1005...... 6310 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 1090...... 9592 an open e-mail service that provides subscribers with a digital 5 CFR 13 CFR form of the Federal Register Table of Contents. The digital form 2471...... 5987 of the Federal Register Table of Contents includes HTML and 2472...... 5987 121...... 7490 PDF links to the full text of each document. Proposed Rules: Proposed Rules: To join or leave, go to http://listserv.access.gpo.gov and select 213...... 6022 115...... 5721 Online mailing list archives, FEDREGTOC-L, Join or leave the list 1600...... 6504 300...... 6517 (or change settings); then follow the instructions. 1601...... 6504 301...... 6517 PENS (Public Law Electronic Notification Service) is an e-mail 1604...... 6504 302...... 6517 service that notifies subscribers of recently enacted laws. 1605...... 6504 303...... 6517 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 1650...... 6504 304...... 6517 and select Join or leave the list (or change settings); then follow 1651...... 6504 305...... 6517 the instructions. 1653...... 6504 306...... 6517 FEDREGTOC-L and PENS are mailing lists only. We cannot 1655...... 6504 307...... 6517 respond to specific inquiries. 1690...... 6504 308...... 6517 Reference questions. Send questions and comments about the 310...... 6517 Federal Register system to: [email protected] 7 CFR 311...... 6517 314...... 6517 The Federal Register staff cannot interpret specific documents or 27...... 5379 regulations. 205...... 8089 14 CFR Reminders. Effective January 1, 2009, the Reminders, including 301...... 5381 1...... 9163 Rules Going Into Effect and Comments Due Next Week, no longer 985...... 5385 appear in the Reader Aids section of the Federal Register. This 25...... 5990, 6945 1170...... 8717 27...... 4890 information can be found online at http://www.regulations.gov. 1491...... 6941 CFR Checklist. Effective January 1, 2009, the CFR Checklist no 29...... 4890 4279...... 7517 39 ...... 5167, 5386, 5991, 5994, longer appears in the Federal Register. This information can be 4290...... 4885 found online at http://bookstore.gpo.gov/. 5996, 5998, 6000, 6003, Proposed Rules: 6663, 6666, 6668, 6669, 205...... 5415, 5717 FEDERAL REGISTER PAGES AND DATE, FEBRUARY 6671, 7518, 7521, 7523, 4279...... 7546 8092, 8722, 9166, 9518, 10649–10938...... 23 9520, 9837, 10352, 10355 4885–5154...... 1 8 CFR 5155–5372...... 2 71 ...... 5168, 5169, 5170, 5691, 5373–5680...... 3 103...... 5681 6463, 7525, 9839, 9840, 5681–5986...... 6 235...... 5681 9841, 10649 5987–6462...... 7 Proposed Rules: 97 ...... 5693, 5694, 9169, 9170 6463–6662...... 8 1292...... 9590 1215...... 6949 6663–6940...... 9 Proposed Rules: 10 CFR 6941–7516...... 10 Ch. 1 ...... 6694 7517–8088...... 13 72...... 9515 39 ...... 5195, 5418, 5420, 5423, 8089–8716...... 14 431...... 10292 5425, 5427, 5724, 5726, 8717–9162...... 15 780...... 4885 5728, 5730, 6023, 6518, 9163–9514...... 16 781...... 4887 6520, 6522, 6525, 6685, 9515–9836...... 17 Proposed Rules: 6688, 6692, 7005, 7007, 9837–10350...... 21 20...... 8751 8181, 9868, 9869, 9871, 10351–10648...... 22 30...... 8751 9874, 10403, 10406, 10409,

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10411, 10413, 10691, 10693 655...... 10038 8143, 8144, 9844, 9845, 90...... 6879 71 ...... 5429, 5733, 6026, 9876 672...... 9112 9846 135...... 7010 Proposed Rules: 54 ...... 8668, 8706, 8725 38 CFR 200...... 8183 301...... 10370 4...... 6466 15 CFR 320...... 8183 602...... 8668 17...... 5186 730...... 10357 345...... 8183 Proposed Rules: 59...... 10663 744...... 5387, 10357 404...... 5734, 7549 1 ...... 5442, 5443, 5454, 6027, 902...... 5389 8184, 8573, 9022, 9877, 39 CFR Proposed Rules: 21 CFR 10422 230...... 6676 336...... 5440 1 ...... 5175, 10658, 10662 48...... 6028 3001...... 6676 7...... 5175 301...... 9022 3025...... 6676 16 CFR 16...... 5175 27 CFR Proposed Rules: Ch. II ...... 10358 101...... 9842 111...... 5470 1130...... 9522 201...... 5696 Proposed Rules: Proposed Rules: 312...... 5696 19...... 6038 40 CFR Ch. II ...... 8751 314...... 5696 447...... 5735 52 ...... 5191, 5400, 5700, 5703, 1223...... 7011 500...... 9528 478...... 5460 5706, 5709, 5710, 6016, 510...... 4895, 5700 479...... 5735 6467, 6963, 7531, 7535, 17 CFR 520...... 4895, 5700 28 CFR 7536, 9529, 10324 4...... 9734 522...... 4895 60...... 8160, 9304 22...... 6336 524...... 4895 Proposed Rules: 62...... 6681 23...... 9734 529...... 4895 16...... 9878 63...... 9304 190...... 6336 558...... 4895 26...... 7559 81...... 4901, 9532 200...... 8094 601...... 5696 97 ...... 5710, 10324, 10342 29 CFR 275...... 10358 606...... 6463 98...... 10387 Proposed Rules: 610...... 5696, 6463 503...... 10038 174...... 6471 75...... 8332 640...... 6463 1602...... 5396 180 .....4903, 8731, 8736, 8741, 801...... 5696 2550...... 5632 8746, 10381 18 CFR 807...... 5696 2590 ...... 8668, 8706, 8725 302...... 10387 1...... 4891 809...... 5696 4007...... 6675 721...... 6476 2...... 4891, 8095 812...... 5696 4022...... 8730 Proposed Rules: 3...... 4891 814...... 5696 Proposed Rules: Ch. I ...... 10451 4...... 4891 870...... 8117 825...... 8960 50...... 8197 5...... 4891 Proposed Rules: 51...... 8197 30 CFR 11...... 4891 173...... 5201 52 ...... 4937, 4940, 5207, 5210, 12...... 4891 177...... 9608 943...... 8144 6044, 6529, 6711, 6727, 40...... 7526 876...... 9610 Proposed Rules: 6743, 10423, 10424, 10430 131...... 4891 935...... 8185 60...... 8209 157...... 4891, 8724 22 CFR 942...... 5740 63...... 6628, 8576 284...... 4891 22...... 5177 81 ...... 4940, 6727, 6743, 8211 292...... 9842 41...... 8119 31 CFR 97...... 10350 376...... 4891 51...... 5177 1...... 9847 98...... 10434 380...... 4891 543...... 6463 141...... 5471, 9882 381...... 10650 24 CFR 546...... 6463 142...... 5471, 9882 385...... 4891 5...... 5662 547...... 6463 180...... 8755 806...... 8095 200...... 5662 1010...... 8148 280...... 8757 Proposed Rules: 203...... 5662, 9177 1029...... 8148 281...... 8757 284...... 10415 236...... 5662 302...... 10450 400...... 5662 33 CFR 721...... 4947 19 CFR 570...... 5662 100...... 6007, 6954 41 CFR 10...... 10368 574...... 5662 110...... 6010 163...... 10368 882...... 5662 117 .....5184, 5185, 5186, 5398, Proposed Rules: Ch. II ...... 8114 891...... 5662 6007, 6012, 6013, 6465, 60-741...... 7108 351...... 8101 954...... 6673 6962, 6963, 10371, 10372 42 CFR Proposed Rules: 982...... 5662 147...... 6007 4...... 6704, 10622 Proposed Rules: 165 .....4897, 4900, 5398, 6007, 71...... 6971 10...... 10622 Ch. II ...... 10695 6013, 6954, 9528, 9847, 81...... 5711 18...... 10622 202...... 7558 9850 412...... 4908 19...... 10622 Proposed Rules: 413...... 4908 25 CFR 113...... 10622 100 ...... 5463, 6039, 6708 476...... 4908 122...... 6704, 10622 514...... 5178 110...... 5743 Proposed Rules: 123...... 10622 523...... 5183 117...... 5201, 6042 68...... 10455 141...... 10622 Proposed Rules: 147...... 10707, 10711 71...... 7108 142...... 10622 524...... 9179 165 ...... 5463, 5747, 7025, 9879 401...... 9179 143...... 10622 539...... 9179 405...... 9179 144...... 10622 577...... 9179 36 CFR 447...... 5318 146...... 10622 580...... 9179 7...... 9852 489...... 5213 151...... 10622 581...... 9179 Proposed Rules: 162...... 6527 582...... 9179 242...... 5204 44 CFR 181...... 10622 583...... 9179 1195...... 6916 64...... 7537, 9856 357...... 5440 584...... 9179 67 ...... 6976, 6980, 7540 585...... 9179 37 CFR 20 CFR Proposed Rules: 45 CFR 404...... 10651, 10657 26 CFR 42 ...... 6868, 6879, 7028, 7040, 147 ...... 8668, 8706, 8725 416...... 10651, 10657 1 ...... 5700, 6005, 8120, 8127, 7060, 7080, 7094 670...... 5403

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1611...... 4909 76...... 6479 422...... 5750 50 CFR Proposed Rules: 97...... 5406 17 ...... 8450, 8632, 10810 60...... 9138 Proposed Rules: 49 CFR 29...... 5714 61...... 9138 64...... 4948 216...... 4917, 6682 1357...... 9883 76...... 9187 173...... 9865 199...... 10666 218...... 4917 46 CFR 48 CFR 242...... 6482 223...... 5880 224...... 5880, 5914 160...... 9859 422...... 5714 382...... 10461 622 ...... 5413, 6988, 8749 251...... 5193 519...... 10665 391...... 10461 648 ....5414, 7000, 7544, 10668 252...... 5193 532...... 6985 395...... 7544 276...... 5193 552...... 6985, 10665 575...... 4914 665...... 6019 280...... 5193 704...... 8166 Proposed Rules: 679 .....5389, 6492, 6683, 8176, 281...... 5193 713...... 8166 191...... 5472 8177, 9588, 9589, 10400, 282...... 5193 714...... 8166 192...... 5472 10668, 10669 283...... 5193 715...... 8166 195...... 5472 680...... 6492 Proposed Rules: 716...... 8166 214...... 6412 Proposed Rules: 327...... 5217 744...... 8166 232...... 6412 17 ...... 4973, 9618, 9884 752...... 8166 243...... 6412 100...... 5204 47 CFR 1511...... 8174 385...... 7562 218...... 6771 1...... 6479 Proposed Rules: 390...... 7562 300 ...... 5473, 8758, 8759 2...... 4910, 5406 10...... 10714 395...... 7562 600...... 5751 15...... 4910 31...... 10461 611...... 5750 648 ...... 8776, 8780, 10463 18...... 4910 52...... 10461 821...... 6760 660...... 10466 73...... 6481 242...... 9617 826...... 6760

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Register but may be ordered the Sam D. Hamilton Noxubee enacted public laws. To in ‘‘slip law’’ (individual National Wildlife Refuge. (Feb. subscribe, go to http:// LIST OF PUBLIC LAWS pamphlet) form from the 14, 2012; 126 Stat. 10) listserv.gsa.gov/archives/ Superintendent of Documents, This is a continuing list of H.R. 658/P.L. 112–95 publaws-l.html U.S. Government Printing public bills from the current FAA Modernization and Office, Washington, DC 20402 Reform Act of 2012 (Feb. 14, session of Congress which Note: This service is strictly (phone, 202–512–1808). The 2012; 126 Stat. 11) have become Federal laws. It for E-mail notification of new text will also be made Last List February 14, 2012 may be used in conjunction laws. The text of laws is not with ‘‘P L U S’’ (Public Laws available on the Internet from available through this service. Update Service) on 202–741– GPO’s Federal Digital System 6043. This list is also (FDsys) at http://www.gpo.gov/ Public Laws Electronic PENS cannot respond to available online at http:// fdsys. Some laws may not yet Notification Service specific inquiries sent to this www.archives.gov/federal- be available. (PENS) address. register/laws. H.R. 588/P.L. 112–94 The text of laws is not To redesignate the Noxubee PENS is a free electronic mail published in the Federal National Wildlife Refuge as notification service of newly

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