        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R8-ES-2010-0076; MO 92210-0-0009]
        RIN 1018-AX18
        Endangered and Threatened Wildlife and Plants; Revised Endangered Status, Revised Critical Habitat Designation, and Taxonomic Revision for Monardella linoides ssp. viminea

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of comment period.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the comment period on the June 9, 2011, proposed rule to revise the listing and critical habitat designation for Monardella viminea (willowy monardella) under the Endangered Species Act of 1973, as amended (Act) (76 FR 33880). We also announce the availability of a draft economic analysis (DEA) of the proposed revised designation of critical habitat for Monardella viminea and an amended required determinations section of the proposal. In the proposed rule that published June 9, 2011 (76 FR 33880), we recognized the taxonomic split of the listed entity, Monardella linoides ssp. viminea, into two distinct full species: Monardella viminea (willowy monardella) and Monardella stoneana (Jennifer's monardella). We proposed to retain the listing status of Monardella viminea as endangered; we proposed to remove protections afforded by the Act from those individuals now recognized as a separate species, Monardella stoneana, because the new species does not meet the definition of endangered or threatened under the Act; and we proposed revised critical habitat for Monardella viminea. We are reopening the comment period to allow all interested parties an opportunity to comment simultaneously on the proposed listing determinations and critical habitat designation, the associated DEA, and the amended required determinations section. Comments previously submitted need not be resubmitted, as they will be fully considered in preparation of the final rule.

          DATES:
          We will consider comments received on or before October 28, 2011. Comments must be received by 11:59 p.m. Eastern Time on the closing date. Any comments that we receive after the closing date may not be considered in the final decision on this action.

          ADDRESSES:
          You may submit written comments by one of the following methods:
          (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R8-ES-2010-0076, which is the docket number for this rulemaking.
          (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R8-ES-2010-0076; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.
          We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Comments section below for more information).

          FOR FURTHER INFORMATION CONTACT:
          Jim Bartel, Field Supervisor, U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Suite 101, Carlsbad, CA 92011; telephone 760-431-9440; facsimile 760-431-5901. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Public Comments

        We will accept written comments and information during this reopened comment period on our proposed revised designation of critical habitat for Monardella viminea published in the Federal Register on June 9, 2011 (76 FR 33880), our DEA of the proposed designation, and the amended required determinations provided in this document. We will consider comments and information from all interested parties. We are particularly interested in comments and information concerning:
        (1) Specific information regarding our recognition of Monardella viminea and M. stoneana at the species rank, on the segregation of ranges of M. stoneana and M. viminea, and on our proposals that M. viminea should remain listed as endangered and that M. stoneana does not warrant listing under the Act (16 U.S.C. 1531 et seq.).

        (2) Any available information on known or suspected threats and proposed or ongoing development projects with the potential to threaten either Monardella viminea or M. stoneana.

        (3) The effects of potential threat factors to both Monardella viminea and M. stoneana that are the basis for a listing determination under section 4(a) of the Act, which are:
        (a) The present or threatened destruction, modification, or curtailment of the species' habitat or range;
        (b) Overutilization for commercial, recreational, scientific, or educational purposes;
        (c) Disease or predation;
        (d) The inadequacy of existing regulatory mechanisms; or
        (e) Other natural or manmade factors affecting its continued existence.
        (4) Specific information regarding impacts of fire on Monardella viminea or M. stoneana individuals or their habitat.

        (5) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act for Monardella viminea including whether there are threats to the species from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threats outweighs the benefit of designation such that the designation of critical habitat may not be prudent.
        (6) Specific information on:

        (a) The amount and distribution of Monardella viminea or M. stoneana habitat,
        (b) What areas that were occupied at the time of listing (or are currently occupied) and that contain features essential to the conservation of these species, should be included in the designation and why;
        (c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change, and
        (d) What areas not occupied at the time of listing are essential for the conservation of the species and why.

        (7) Information that may assist us in identifying or clarifying the physical and biological features essential to the conservation of Monardella viminea.

        (8) How the proposed critical habitat boundaries could be refined to more closely or accurately circumscribe the areas identified as containing the physical and biological features essential to the conservation of Monardella viminea.

        (9) How we could improve or modify our design of critical habitat units, particularly our criteria for width of essential habitat for Monardella viminea. We especially request information on West Sycamore Canyon and Unit 2 (where two groups of M. viminea were not included under the criteria used to draw proposed critical habitat boundaries) and areas such as Elanus, Lopez, and Rose Canyons that we have identified as not meeting the definition of critical habitat.
        (10) Information on pollinators of Monardella viminea or M. stoneana that may be essential for the conservation of these species, including information on areas that provide habitat for these pollinators.
        (11) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
        (12) Information on the projected and reasonably likely impacts of climate change on the two species and the proposed critical habitat.
        (13) Information on any quantifiable economic costs or benefits of the proposed designation of critical habitat.
        (14) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation; in particular, any impacts on small entities or families, and the benefits of including or excluding areas that exhibit these impacts.

        (15) Whether any specific areas we are proposing for critical habitat designation for Monardella viminea should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act, in particular for those lands covered by the County of San Diego Subarea Plan or the City of San Diego Subarea Plan under the Multiple Species Conservation Program (MSCP). Information on obtaining copies of these plans will be provided by the U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
        (16) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.
        (17) Information on the extent to which the description of potential economic impacts in the DEA is complete and accurate.
        (18) Whether the DEA appropriately identifies all costs and benefits that could result from the designation.

        If you submitted comments or information on the proposed rule (76 FR 33880) during the initial comment period from June 9, 2011, to August 8, 2011, please do not resubmit them. We will incorporate them into the public record as part of this comment period, and we will fully consider them in the preparation of our final determination. Our final determination concerning listing Monardella viminea as an endangered species, delisting the portion of the previously listed entity (Monardella linoides ssp. viminea) now considered to be M. stoneana, and designating critical habitat for M. viminea will take into consideration all written comments and any additional information we receive during the comment period. On the basis of public comments, we may, during the development of our final determination, find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion.

        You may submit your comments and materials concerning this proposed rule or DEA by one of the methods listed in the ADDRESSES section. We request that you submit information ONLY by one of the methods listed in the ADDRESSES section. If you submit a comment via http://www.regulations.gov, your entire comment—including any personal identifying information—will be posted on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hard copy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

        Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule and DEA, will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R8-ES-2010-0076, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the proposed listing and proposed critical habitat (76 FR 33880) and the DEA on the Internet at http://www.regulations.gov at Docket No. FWS-R8-ES-2010-0076, or by mail from the Carlsbad Fish and Wildlife Office (see the FOR FURTHER INFORMATION CONTACT).
        Background

        In the proposed rule (76 FR 33880; June 9, 2011), we recognized the taxonomic split of Monardella linoides ssp. viminea into two distinct taxa: Monardella viminea (willowy monardella) and Monardella stoneana (Jennifer's monardella); we proposed the retention of M. viminea as endangered; proposed critical habitat for M. viminea; and concluded that M. stoneana does not meet the definition of endangered or threatened. We did not include an analysis of whether M. stoneana warrants listing based on it being threatened or endangered in a significant portion of its range (SPR) in the June 9, 2011 Federal Register notice. We have included that analysis here. Apart from the SPR analysis, we discuss only those topics directly relevant to the designation of critical habitat for M. viminea in this document. For more information on the taxonomy, nomenclature, biology, and ecology of M. viminea, please refer to the listing rule for M. linoides ssp. viminea published in the Federal Register on October 13, 1998 (63 FR 54938), our critical habitat designation published in the Federal Register on November 8, 2006 (71 FR 65662), or our proposed critical habitat designation published in the Federal Register on June 9, 2011 (76 FR 33880), or contact the Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
        Analysis of Significant Portion of the Range of Monardella stoneana

        The Act defines “endangered species” as any species which is “in danger of extinction throughout all or a significant portion of its range,” and “threatened species” as any species which is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The definition of “species” is also relevant to this discussion. The Act defines the term “species” as follows: “The term `species' includes any subspecies of fish or wildlife or plants, and any distinct population segment [DPS] of any species of vertebrate fish or wildlife which interbreeds when mature.” The phrase “significant portion of its range” (SPR) is not defined by the statute, and we have never addressed in our regulations: (1) The consequences of a determination that a species is either endangered or likely to become so throughout a significant portion of its range, but not throughout all of its range; or (2) what qualifies a portion of a range as “significant.” In our proposed rule (76 FR 33880; June 9, 2011), we proposed to list Monardella viminea throughout its entire range; therefore, a discussion of significant portion of its range was unnecessary.

        Two recent district court decisions have addressed whether the SPR language allows the Service to list or protect less than all members of a defined “species”: Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207 (D. Mont. 2010), concerning the Service's delisting of the Northern Rocky Mountain gray wolf (74 FR 15123, Apr. 12, 2009); and WildEarth Guardians v. Salazar, 2010 U.S. Dist. LEXIS 105253 (D. Ariz. Sept. 30, 2010), concerning the Service's 2008 finding on a petition to list the Gunnison's prairie dog (73 FR 6660, Feb. 5, 2008). The Service had asserted in both of these determinations that it had authority, in effect, to protect only some members of a “species,” as defined by the Act (i.e., species, subspecies, or DPS), under the Act. Both courts ruled that the determinations were arbitrary and capricious on the grounds that this approach violated the plain and unambiguous language of the Act. The courts concluded that reading the SPR language to allow protecting only a portion of a species' range is inconsistent with the Act's definition of “species.” The courts concluded that once a determination is made that a species (i.e., species, subspecies, or DPS) meets the definition of “endangered species” or “threatened species,” it must be placed on the list in its entirety and the Act's protections applied consistently to all members of that species (subject to modification of protections through special rules under sections 4(d) and 10(j) of the Act).
        Consistent with that interpretation, and for the purposes of this proposed rule, we interpret the phrase “significant portion of its range” in the Act's definitions of “endangered species” and “threatened species” to provide an independent basis for listing; thus there are two situations (or factual bases) under which a species would qualify for listing: a species may be endangered or threatened throughout all of its range; or a species may be endangered or threatened in only a significant portion of its range. If a species is in danger of extinction throughout an SPR, it, the species, is an “endangered species.” The same analysis applies to “threatened species.” Therefore, the consequence of finding that a species is endangered or threatened in only a significant portion of its range is that the entire species shall be listed as endangered or threatened, respectively, and the Act's protections shall be applied across the species' entire range.
        We conclude, for the purposes of this proposed rule, that interpreting the SPR phrase as providing an independent basis for listing is the best interpretation of the Act because it is consistent with the purposes and the plain meaning of the key definitions of the Act; it does not conflict with established past agency practice (i.e., prior to the 2007 Solicitor's Opinion), as no consistent, long-term agency practice has been established; and it is consistent with the judicial opinions that have most closely examined this issue. Having concluded that the phrase “significant portion of its range” provides an independent basis for listing and protecting the entire species, we next turn to the meaning of “significant” to determine the threshold for when such an independent basis for listing exists.
        Although there are potentially many ways to determine whether a portion of a species' range is “significant,” we conclude, for the purposes of this proposed rule, that the significance of the portion of the range should be determined based on its biological contribution to the conservation of the species. For this reason, we describe the threshold for “significant” in terms of an increase in the risk of extinction for the species. We conclude that a biologically based definition of “significant” best conforms to the purposes of the Act, is consistent with judicial interpretations, and best ensures species' conservation. Thus, for the purposes of this proposed rule, a portion of the range of a species is “significant” if its contribution to the viability of the species is so important that, without that portion, the species would be in danger of extinction.

        We evaluate biological significance based on the principles of conservation biology using the concepts of redundancy, resiliency, and representation. Resiliency describes the characteristics of a species that allow it to recover from periodic disturbance. Redundancy (having multiple populations distributed across the landscape) may be needed to provide a margin of safety for the species to withstand catastrophic events. Representation (the range of variation found in a species) ensures that the species' adaptive capabilities are conserved. Redundancy, resiliency, and representation are not independent of each other, and some characteristic of a species or area may contribute to all three. For example, distribution across a wide variety of habitats is an indicator of representation, but it may also indicate a broad geographic distribution contributing to redundancy (decreasing the chance that any one event affects the entire species), and the likelihood that some habitat types are less susceptible to certain threats, contributing to resiliency (the ability of the species to recover from disturbance). None of these concepts is intended to be mutually exclusive, and a portion of a species' range may be determined to be “significant” due to its contributions under any one of these concepts.

        For the purposes of this proposed rule, we determine if a portion's biological contribution is so important that the portion qualifies as “significant” by asking whether, without that portion, the representation, redundancy, or resiliency of the species would be so impaired that the species would have an increased vulnerability to threats to the point that the overall species would be in danger of extinction (i.e., would be “endangered”). Conversely, we would not consider the portion of the range at issue to be “significant” if there is sufficient resiliency, redundancy, and representation elsewhere in the species' range that the species would not be in danger of extinction throughout its range if the population in that portion of the range in question became extirpated (extinct locally).

        We recognize that this definition of “significant” establishes a threshold that is relatively high. On the one hand, given that the consequences of finding a species to be endangered or threatened in an SPR would be listing the species throughout its entire range, it is important to use a threshold for “significant” that is robust. It would not be meaningful or appropriate to establish a very low threshold whereby a portion of the range can be considered “significant” even if only a negligible increase in extinction risk would result from its loss. Because nearly any portion of a species' range can be said to contribute some increment to a species' viability, use of such a low threshold would require us to impose restrictions and expend conservation resources disproportionately to conservation benefit: listing would be rangewide, even if only a portion of the range of minor conservation importance to the species is imperiled. On the other hand, it would be inappropriate to establish a threshold for “significant” that is too high. This would be the case if the standard were, for example, that a portion of the range can be considered “significant” only if threats in that portion result in the entire species' being currently endangered or threatened. Such a high bar would not give the SPR phrase independent meaning, as the Ninth Circuit held in Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th Cir. 2001).

        The definition of “significant” used in this proposed rule carefully balances these concerns. By setting a relatively high threshold, we minimize the degree to which restrictions will be imposed or resources expended that do not contribute substantially to species conservation. But we have not set the threshold so high that the phrase “in a significant portion of its range” loses independent meaning. Specifically, we have not set the threshold as high as it was under the interpretation presented by the Service in the Defenders litigation. Under that interpretation, the portion of the range would have to be so important that current imperilment there would mean that the species would be currently imperiled everywhere. Under the definition of “significant” used in this proposed rule, the portion of the range need not rise to such an exceptionally high level of biological significance. (We recognize that if the species is imperiled in a portion that rises to that level of biological significance, then we should conclude that the species is in fact imperiled throughout all of its range, and that we would not need to rely on the SPR language for such a listing.) Rather, under this interpretation we ask whether the species would be endangered everywhere without that portion, i.e., if that portion were completely extirpated. In other words, the portion of the range need not be so important that even being in danger of extinction in that portion would be sufficient to cause the species in the remainder of the range to be endangered; rather, the complete extirpation (in a hypothetical future) of the species in that portion would be required to cause the species in the remainder of the range to be endangered.

        The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose to analyzing portions of the range that have no reasonable potential to be significant and threatened or endangered. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that: (1) The portions may be “significant,” and (2) the species may be in danger of extinction there or likely to become so within the foreseeable future. Depending on the biology of the species, its range, and the threats it faces, it might be more efficient for us to address the significance question first or the status question first. Thus, if we determine that a portion of the range is not “significant,” we do not need to determine whether the species is endangered or threatened there; if we determine that the species is not endangered or threatened in a portion of its range, we do not need to determine if that portion is “significant.” In practice, a key part of the portion status analysis is whether the threats are geographically concentrated in some way. If the threats to the species are essentially uniform throughout its range, no portion is likely to warrant further consideration. Moreover, if any concentration of threats applies only to portions of the species' range that clearly would not meet the biologically based definition of “significant”, such portions will not warrant further consideration.

        As described in the proposed rule (76 FR 88330), we found the stressors affecting Monardella stoneana not of sufficient imminence, intensity, magnitude, or geographic concentration such that it warrants listing under the Act. The stressors affecting M. stoneana, including megafire, occur across the species' entire range. Additionally, factors that might be limited to individual drainages, such as altered hydrology or urban development, do not threaten M. stoneana. Therefore, because Monardella stoneana has no geographical concentration of threats, it does not qualify for listing based on threats to the species in a significant portion of its range.
        Decisions by Ninth Circuit Court of Appeals in Defenders of Wildlife v. Norton, 258 F.3d 1136 (2001) and Tucson Herpetological Society v. Salazar, 566 F.3d 870 (2009) found that the Act requires the Service, in determining whether a species is endangered or threatened throughout a significant portion of its range, to consider whether lost historical range of a species (as opposed to its current range) constitutes a significant portion of the range of that species. While this is not our interpretation of the statute, we will consider whether the lost historical range might qualify as an SPR for Monardella stoneana.

        We evaluated whether the best available information indicates that the range of Monardella stoneana has contracted over time. We have little information on the historical range of M. stoneana. However, unlike M. viminea, M. stoneana has not undergone a dramatic decline in population size. Monardella stoneana appears to have persisted for over two decades in the two occurrences known in the United States since the 1970s and 1980s, respectively (see proposed rule at 76 FR 33880; June 9, 2011). The other seven occurrences of M. stoneana in the United States were discovered in 2003 or later, so long-term data are not available; only one of those seven occurrences has since been extirpated. We have almost no information about the range of M. stoneana in Mexico other than observations of plants directly across the Mexican border from occurrences in the United States. Because the best available information indicates that M. stoneana has not experienced a significant population decline, nor have multiple occurrences been extirpated within its known range, we are unable to find that a significant amount of historical range has been lost. In sum, we conclude that there has not been a loss of historical habitat that represents a significant portion of the range of M. stoneana.

        Critical Habitat

        Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.
        All critical habitat units for Monardella viminea were occupied at the time of listing. Occupancy was determined at the unit level, and unit lines were drawn to capture essential habitat supporting the documented occurrences within each unit. For more information on how critical habitat units were outlined, see the Methods section of the proposed critical habitat rule published on June 9, 2011 (76 FR 88330).
        Consideration of Impacts Under Section 4(b)(2) of the Act
        Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. If we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, we may then exercise our discretion to exclude an area from critical habitat, provided such exclusion will not result in the extinction of the species.
        When considering the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus (activities conducted, funded, permitted, or authorized by Federal agencies), the educational benefits of mapping areas containing essential features that aid in the recovery of the listed species, and any benefits that may result from designation due to State or Federal laws that may apply to critical habitat.

        When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan. In the case of Monardella viminea, the benefits of critical habitat include public awareness of the presence of M. viminea and the importance of habitat protection, and, where a Federal nexus exists, potentially increased habitat protection for M. viminea due to protection from adverse modification or destruction of critical habitat. A Federal nexus exists where a proposed action will occur on Federal lands or where a proposed action will be conducted, funded, permitted, or authorized by a Federal agency.

        The final decision about whether to exercise our discretion to exclude any areas will be based on the best scientific data available at the time of the final designation, including information obtained during the comment period and information about the economic impact of designation. Accordingly, we have prepared a draft economic analysis (DEA) concerning the proposed critical habitat designation, which is available for review and comment (see ADDRESSES section).
        Draft Economic Analysis
        Section 4(b)(2) of the Act requires that we designate critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat.

        The purpose of the DEA is to identify and analyze the potential economic impacts associated with the proposed critical habitat designation for Monardella viminea. We prepared a DEA that identifies and analyzes the potential impacts associated with the proposed designation of critical habitat for M. viminea that we published in the Federal Register on June 9, 2011 (76 FR 33880). The DEA describes the economic impacts of all known potential conservation efforts for M. viminea; some of these costs will likely be incurred regardless of whether we designate critical habitat.

        The economic impact of the proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, considering protections otherwise afforded to the species (e.g., under the Federal listing and other Federal, State, and local regulations). The baseline, therefore, represents the costs incurred regardless of whether critical habitat is designated. The “with critical habitat” scenario describes the incremental impacts specifically due to designation of critical habitat for the species. The incremental conservation efforts and associated impacts are those not expected to occur absent the critical habitat designation for M. viminea. In other words, the incremental costs are those attributable solely to the designation of critical habitat, above and beyond the baseline costs; these are the costs we may consider in the final designation of critical habitat when evaluating the benefits of excluding particular areas under section 4(b)(2) of the Act. Conservation measures implemented under the baseline (without critical habitat) scenario are described qualitatively within the DEA, but economic impacts associated with these measures are not quantified. Economic impacts are only quantified for conservation measures implemented specifically due to the designation of critical habitat (i.e., incremental impacts). For a further description of the methodology of the analysis, see Chapter 2, “Framework for the Analysis” of the DEA.
        The DEA also discusses the potential benefits associated with the designation of critical habitat, but does not monetize these benefits. The incremental impacts are the impacts we may consider in the final designation of critical habitat relative to areas that may be excluded under section 4(b)(2) of the Act.

        The DEA provides estimated costs of the foreseeable potential economic impacts of the proposed critical habitat designation for Monardella viminea over the next 19 years, which was determined to be the appropriate period for analysis because limited planning information is available to forecast activity levels for projects beyond a 19-year timeframe. Additionally, the timeframe evaluates the impacts of the critical habitat rule from its finalization in 2012 to 2030, which is the length of transportation planning efforts by the California Department of Transportation (CalTrans). The DEA identifies potential incremental costs as a result of the proposed critical habitat designation; these are those costs attributed to critical habitat over and above those baseline costs attributed to listing. The DEA quantifies economic impacts of M. viminea conservation efforts associated with the following categories of activity: (1) Residential development and (2) transportation projects.
        The DEA concludes that critical habitat designation is not likely to affect levels of economic activity or conservation measures being implemented within the proposed critical habitat area. Unless changes occur to existing conservation measures or the management of land use activities, the incremental impacts of critical habitat designation would be limited to additional administrative costs of section 7 consultations for Federal agencies associated with considering the potential for adverse modification of critical habitat. The DEA estimates that 50 percent of incremental impacts will be related to urban development, and 50 percent will be related to transportation projects.

        The DEA estimates total potential incremental economic impacts in areas proposed as critical habitat over the next 19 years (2012 to 2030) to be $9,700 ($700 annualized) in present value terms using a 3-percent discount rate, and $9,300 ($800 annualized) in present value terms applying a 7-percent discount rate.
        The proposed critical habitat area is unlikely to generate economic impacts beyond administrative costs of section 7 consultation for several reasons. Sixty percent of the proposed designation already receives protection through the MSCP subarea plans, and all units are occupied by the plant and thus will require consultation regardless of the designation. Additionally, project modifications necessary to avoid adverse modification of critical habitat are indistinguishable from those necessary to avoid jeopardizing the species.
        In conclusion, the Service does not foresee a circumstance in which critical habitat designation will change the outcome of future section 7 consultations. Any conservation measures implemented to minimize impacts to the species would coincidentally be sufficient to minimize impacts to critical habitat. Therefore, we do not believe any additional conservation measures would be needed solely to minimize impacts to critical habitat. Based on this reasoning, we also do not anticipate critical habitat designation to result in any appreciable incremental economic impacts. Any economic impacts related to conservation activities would result from the listing of the species, rather than the designation of critical habitat, and would fall within the economic baseline.
        As we stated earlier, we are soliciting data and comments from the public on the DEA, as well as all aspects of the proposed rule and our amended required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public comment period. In particular, we may exercise our discretion to exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.
        Required Determinations—Amended
        In our proposed rule that published in the Federal Register on June 9, 2011 (76 FR 33880), we indicated that we would defer our determination of compliance with several statutes and executive orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders became available in the DEA. We have now made use of the DEA to make these determinations. In this document, we affirm the information in our proposed rule concerning Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 12630 (Takings), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211 (Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the National Environmental Policy Act (42 U.S.C. 4321 et seq.), and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951). Based on the DEA data, we are amending our required determination concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
        Regulatory Flexibility Act

        Under the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Based on our DEA of the proposed critical habitat designation, we provide our analysis for determining whether the proposed designation would result in a significant economic impact on a substantial number of small entities. Based on comments we receive, we may revise this determination as part of a final rulemaking.
        According to the Small Business Administration, small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.

        To determine if the proposed designation of critical habitat for Monardella viminea would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as residential and commercial development. In order to determine whether it is appropriate for our agency to certify that this proposed rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. In areas where M. viminea is present, Federal agencies already are required to consult with us under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If we finalize this proposed listing and proposed critical habitat designation, reasonable and prudent measures to avoid adverse modification of critical habitat would be incorporated into the existing consultation process.

        In the DEA, we evaluated the potential economic effects on small entities resulting from implementation of conservation actions related to the proposed critical habitat for Monardella viminea. The DEA identifies the estimated incremental impacts associated with the proposed rulemaking as described in Appendix A of the DEA, and evaluates the potential for economic impacts associated with activity categories including residential development and road construction. The DEA concludes that none of the entities with which the Service might consult on M. viminea meet the definition of a small business.

        In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. Information for this analysis was gathered from the Small Business Administration, stakeholders, and the Service. We have identified no small entities that may be impacted by the proposed critical habitat designation. For the above reason and based on currently available information, we certify that, if promulgated, the proposed critical habitat would not have a significant economic impact on small entities. Therefore, an initial regulatory flexibility analysis is not required.
        Authors

        The primary authors of this notice are the staff members of the Carlsbad Fish and Wildlife Office, Pacific Southwest Region, U.S. Fish and Wildlife Service (see FOR FURTHER INFORMATION CONTACT).

          Authority:

          The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

          Dated: September 15, 2011.
          Rachel Jacobson,
          Acting Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 2011-24608 Filed 9-27-11; 8:45 am]
      BILLING CODE 4310-55-P


        GENERAL SERVICES ADMINISTRATION
        41 CFR Part 102-81
        [FMR Case 2018-102-2; Docket No. 2020-0009; Sequence No. 1]
        RIN 3090-AJ94
        Federal Management Regulation; Physical Security

          AGENCY:
          Office of Government-wide Policy (OGP), General Services Administration (GSA).

          ACTION:
          Proposed rule.

          SUMMARY:
          The General Services Administration is proposing to revise the Federal Management Regulation (FMR) to clarify the responsibilities of agencies for maintaining physical security standards in federally owned and leased facilities in light of current law, executive orders and updated standards. The revision will also update nomenclature and reorganize the subparts for better readability and clarity.

          DATES:
          Interested parties should submit written comments to the Regulatory Secretariat Division at one of the addresses shown below on or before May 4, 2020 to be considered in the formation of the final rule.

          ADDRESSES:
          Submit comments in response to FMR Case 2018-102-2 by any of the following methods:
          • Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by entering “FMR Case 2018-102-2” under the heading select “Enter Keyword or ID” and select “Search”. Select the link “Submit a Comment” that corresponds with “FMR Case 2018-102-2” and follow the instructions provided at the “Comment Now” screen. Please include your name, company name (if any), and “FMR Case 2018-102-2” on your attached document.
          • Mail: General Services Administration, Regulatory Secretariat Division (MVCB), ATTN: Ms. Lois Mandell, Director, 1800 F Street NW, 2nd Floor, Washington, DC 20405.

            Instructions: Please submit comments only and cite “FMR Case 2018-102-2” in all correspondence related to this case. All comments received will be posted without change to http://www.regulations.gov including any personal and business confidential information provided. To confirm receipt of your comment(s), please check http://www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

          FOR FURTHER INFORMATION CONTACT:

          For clarification of content, contact Mr. Chris Coneeney, Director, Real Property Policy Division, Office of Government-wide Policy at 202-501-2956 or chris.coneeny@gsa.gov. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division (MVCB), 1800 F Street NW, Washington, DC 20405, 202-501-4755. Please cite “FMR Case 2018-102-2”.

        SUPPLEMENTARY INFORMATION:

        A. Background and Authority for This Rulemaking

        6 U.S.C. 232 vests in the GSA Administrator the authority to operate, maintain and protect buildings and grounds owned or occupied by the Federal Government and under the jurisdiction, custody or control of the Administrator. This rule proposes to revise in its entirety 41 CFR part 102-81, Physical Security, last published in the Federal Register on November 8, 2005 (70 FR 67856), in light of changes to law, executive orders and updated standards. This regulation is applicable to all GSA-controlled facilities, including those owned and leased under GSA authority and those delegated under GSA authority.
        Six months after the bombing of the Alfred P. Murrah Federal Building, President William Clinton issued Executive Order (E.O.) 12977: Interagency Security Committee, creating the Interagency Security Committee (ISC) within the Executive Branch (60 FR 54411, Oct. 19, 1995). The ISC is a membership organization that includes 63 Federal departments and agencies. The ISC's mandate is to enhance the quality and effectiveness of physical security in, and the protection of, buildings and nonmilitary Federal facilities, and to provide a permanent body to address continuing government-wide security issues for these facilities. Pursuant to E.O. 12977, the ISC also prepared guidance for the Facility Security Committees (FSCs) that are responsible for addressing and implementing facility-specific security issues at each multi-occupant Federal facility.

        In response to the terrorist attacks on September 11, 2001, Congress enacted the Homeland Security Act of 2002 (available at https://www.dhs.gov/sites/default/files/publications/hr_5005_enr.pdf), Public Law 107-296, 116 Stat 2135 (the “Act”), to better protect the assets and critical infrastructure of the United States. The Act established the U.S. Department of Homeland Security (DHS), and among other things, transferred the Federal Protective Service (FPS) from GSA to DHS. FPS was established as a component of GSA in January 1971, and historically has been the security organization that conducts investigations to protect property under the control of GSA, enforces Federal laws to protect persons and property, and makes arrests without a warrant for any offense committed upon Federal property if a policeman had reason to believe the offense was a felony and the person to be arrested was guilty of the felony. Section 1706 of the Act, codified at 40 U.S.C. 1315, transferred FPS's specific security and law enforcement functions and authorities to the Secretary of Homeland Security.
        Section 422 of the Act also references 6 U.S.C. 232, which vests in the Administrator of General Services the authority to operate, maintain and protect buildings and grounds owned or occupied by the Federal Government and under the jurisdiction, custody or control of the Administrator.
        Following enactment of the Act, President George Bush issued E.O. 13286: Amendment of Executive Orders, and Other Actions, in Connection With the Transfer of Certain Functions to the Secretary of Homeland Security, which transferred responsibility for chairing the ISC from the Administrator of General Services to the Secretary of Homeland Security (68 FR 10619, March 5, 2003).

        In August 2004, President George Bush issued Homeland Security Presidential Directive 12 (HSPD-12) (available at https://www.dhs.gov/homeland-security-presidential-directive-12), which requires, to the maximum extent practicable, the use of identification by Federal employees and contractors that meets the standard promulgated by the Secretary of Commerce (e.g., Federal Information Processing Standard Publication 201) to gain physical access to Federally controlled facilities.
        HSPD-12 was followed by the REAL ID Act of 2005, Public Law 109-13, 119 Stat. 302 (the “REAL ID Act”), which establishes minimum security standards for license issuance and production and prohibits Federal agencies from accepting for certain purposes driver's licenses and identification cards from states not meeting the REAL ID Act's minimum standards. The purposes covered by the REAL ID Act are accessing Federal facilities, entering nuclear power plants and boarding federally regulated commercial aircraft.
        In June 2006, GSA and DHS signed a Memorandum of Agreement (MOA) outlining the responsibilities of each agency with regard to facility security. According to the MOA, FPS is required to conduct facility security assessments of GSA buildings in accordance with ISC standards. The resulting facility security assessment report should include recommended countermeasures for identified vulnerabilities. The MOA also established that both agencies are responsible for the implementation of approved countermeasures, with FPS responsible for security equipment and GSA in charge of facility security fixtures. This 2006 MOA was revised and superseded by an MOA executed by DHS and GSA as of September 27, 2018.

        In February 2013, Presidential Policy Directive 21: Critical Infrastructure Security and Resilience required the Secretary of Homeland Security (available at https://obamawhitehouse.archives.gov/the-press-office/2013/02/12/presidential-policy-directive-critical-infrastructure-security-and-resil) to conduct comprehensive assessments of the vulnerabilities of the nation's critical infrastructure. This directive also designated both GSA and DHS as the responsible agencies for providing institutional knowledge and specialized expertise in support of security programs and activities for government buildings.

        In August 2013, the ISC issued The Risk Management Process for Federal Facilities (the “RMP Standard”), a standard to define the criteria and processes to determine the facility security level and provide a single source of physical security countermeasures for federal buildings. The ISC updated the standard in November 2016. See, The Risk Management Process for Federal Facilities: An Interagency Security Committee Standard (2nd Ed., November 2016) https://www.cisa.gov/sites/default/files/publications/isc-risk-management-process-2016-508.pdf. The following terms have the same definition as ascribed to them in the RMP Standard:

        Baseline Level of Protection,
        Facility Security Assessment,
        Facility Security Committee,
        Facility Security Level,
        Risk,
        Risk Mitigation,
        Level of Protection,
        Level of Risk, and

        Vulnerability.

        Some notable provisions of the ISC standard are described below:

        (a) According to the ISC standard, buildings with two or more federal tenants should have a FSC. See, Facility Security Committees: An Interagency Security Committee Standard (2nd Ed. Jan. 1, 2012) (available at https://www.dhs.gov/xlibrary/assets/isc-facility-security-committees-standard-january-2012-2nd-edition.pdf). FSCs are responsible for addressing building-specific security issues and approving the implementation of recommended countermeasures and practices. FSCs include representatives of all federal occupant agencies in the building, as well as FPS and GSA. However, FPS and GSA do not have voting rights, unless they are occupants in the building. If the FSC approves a countermeasure, each federal occupant agency in the building is responsible for funding its pro rata share of the cost. According to the ISC standard, in a building with only one federal occupant agency, that agency is the decision-maker for the building's security. Therefore, these types of buildings do not require FSCs.
        (b) The ISC standard requires FPS to conduct facility security assessments to identify vulnerabilities and recommend countermeasures. FSCs use a building's facility security assessment report to—
        1. Evaluate security risk;
        2. Implement countermeasures to mitigate risk; and
        3. Allocate security resources effectively.
        For example, a facility security assessment report might include a recommendation to install cameras and relocate a loading dock. Upon deliberation, the FSC might decide only to install the cameras. FPS, in consultation with the FSC, helps determine a facility's security level, which determines the baseline level of protection. Facility security levels range from Level 1 (lowest risk) to Level 5 (highest risk), and dictate the frequency of the facility security assessments for that building. The facility security level is based on five factors: Mission criticality, symbolism, building population, building size, and threat to occupant agencies. In addition, intangibles (such as a short duration occupancy) can be used to adjust the security level.

        Occupant agency or FSCs use the facility security assessment reports they receive from FPS to inform deliberations regarding recommended risk mitigation countermeasures and other security related actions. GSA will facilitate the implementation of the countermeasures or other actions after occupant agency or FSC approval, and commitment of each occupant agency to pay its pro rata share of the cost.
        B. Section-by-Section Analysis and Regulatory Changes Proposed by GSA in This Rulemaking
        Subpart A—General Provisions
        § 102-81.5
        GSA proposes changes in this section to describe more accurately the scope and coverage of the regulation. The regulation uses the phrase “under the jurisdiction, custody or control of GSA,” which appears in 6 U.S.C. 232, to describe the buildings and grounds owned or occupied by the Federal Government that are covered by this part. This phrase replaces and clarifies the phrase “operating under, or subject to, the authorities of the Administrator of General Services,” which was used in the previous version. The definitions of “Federal facility” and “Federal grounds” are included to clarify any confusion in the scope.
        § 102-81.10
        GSA proposes a substantive change to this section to clarify that, under E.O. 12977, the ISC is responsible for setting policies and recommendations that govern Federal agency physical security. The ISC issues standards, such as the ISC Risk Management Process Standard (2nd Ed., November 2016) (the “RMP Standard”). ISC policies do not supersede other laws, regulations and executive orders that are intended to protect unique assets.
        § 102-81.15
        GSA proposes adding this section to clarify the governing authorities that pertain to this regulation.
        § 102-81.20
        GSA proposes to eliminate in its entirety the previous section 102-81.20 because the RMP Standard supersedes all previous guidance contained in the Department of Justice's report “Vulnerability Assessment of Federal Facilities” (June 28, 1995). There is no difference between existing and new facilities in the ISC policies and standards. GSA proposes to add the replacement provision to clarify that Federal agencies are required to follow this regulation. Federal agencies must cooperate and comply with ISC policies and recommendations, except where the Director of National Intelligence determines that compliance would jeopardize intelligence sources and methods or the Secretary of Energy determines that compliance would conflict with the authorities of the Secretary of Energy over Restricted Data and Special Nuclear Material under, among others, sections 141, 145, 146, 147, and 161 of the Atomic Energy Act of 1954, as amended, the Department of Energy Organization Act, or any other statute.
        Subpart B—Physical Security
        § 102-81.25

        GSA proposes to eliminate in its entirety the previous section 102-81.25 because the RMP Standard supersedes all previous guidance contained in the Department of Justice's report “Vulnerability Assessment of Federal Facilities” (June 28, 1995). GSA proposes to add the replacement provision to clarify that Federal agencies are responsible for meeting physical security standards in accordance with ISC standards, policies and recommendations. Occupant agency or FSCs use the facility security assessment reports they receive from FPS to inform deliberations regarding recommended countermeasures and other security related actions. GSA will facilitate the implementation of the countermeasures or other actions after occupant agency or FSC approval, and commitment of each occupant agency to pay its pro rata share of the cost.
        § 102-81.30
        GSA proposes to eliminate in its entirety the previous section 102-81.30 because the requirements are addressed in section 231 of Public Law 101-647. GSA proposes to add the replacement provision to be consistent with the RMP Standard. This section now describes physical security considerations associated with existing facilities.
        § 102-81.31
        GSA proposes adding this section to be consistent with the RMP Standard. This section describes physical security considerations associated with leased facilities or new construction.
        C. Executive Orders 12866 and 13563

        Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits of reducing costs, harmonizing rules and promoting flexibility. This rule is a significant regulatory action, and is subject to review under section 6(b) of E.O. 12866. This rule is not a major rule under 5 U.S.C. 804.
        D. Executive Order 13771
        This proposed rule is not expected to be subject to the requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because this proposed rule is expected to be related to agency organization, management, or personnel.
        E. Regulatory Flexibility Act
        GSA certifies this rule will not have a significant economic impact on a substantial number of small entities because it applies only to Federal agencies and employees.
        F. Paperwork Reduction Act

        The Paperwork Reduction Act does not apply because the changes to the FMR do not impose recordkeeping or information collection requirements on, or the collection of information from, offerors, contractors or members of the public that require the approval of the Office of Management and Budget under 44 U.S.C. 3501 et seq.

        G. Small Business Regulatory Enforcement Fairness Act
        This proposed rule is exempt from Congressional review under 5 U.S.C. 801, since it relates solely to agency management or personnel.

          List of Subjects in 41 CFR Part 102-81
          Federal buildings and facilities, Government property management and physical security measures.

          Jessica Salmoiraghi,
          Associate Administrator, Office of Government-wide Policy.

        For the reasons set forth in the preamble, GSA proposes to revise in its entirety 41 CFR part 102-81 as follows:

          PART 102-81—Physical Security

        1. The authority citation for part 102-81 is revised to read as follows:

          Authority:
          40 U.S.C. 121(c) and 581; 6 U.S.C. 232; Homeland Security Presidential Directive 12; and the REAL ID Act of 2005, Pub. L. 109-13, 119 Stat. 302.

        2. Amend part 102-81 to read as follows:
        Part 102-81—Physical Security

            Subpart A—General Provisions
            Sec.
            § 102-81.5
            What does this part cover?
            § 102-81.10
            What basic physical security policy governs Federal agencies?
            § 102-81.15
            What are the governing authorities for this part?
            § 102-81.20
            Who must comply with these provisions?

            Subpart B—Physical Security
            § 102-81.25
            Who is responsible for implementing, maintaining and upgrading physical security standards in each Federally owned and leased facility?
            § 102-81.30
            Are there any special considerations for existing facilities?
            § 102-81.31
            Are there any special considerations for leased facilities or new construction?

          Subpart A—General Provisions

            § 102-81.5
             What does this part cover?

            This part covers physical security in and at federally owned and leased facilities and grounds under the jurisdiction, custody or control of GSA, including those facilities and grounds that have been delegated by the Administrator of General Services. Federal facility means all or any part of any building, physical structure or associated support infrastructure (e.g., parking facilities and utilities) that is under the jurisdiction, custody or control of GSA. Federal grounds mean all or any part of any area outside a Federal facility that is under the jurisdiction, custody or control of GSA.

            § 102-81.10
             What basic physical security policy governs Federal agencies?
            The Interagency Security Committee (ISC) is responsible for developing and evaluating physical security standards for Federal facilities. In accordance with Executive Order 12977, the ISC sets policies and recommendations that govern Federal agency physical security. This includes the ISC Risk Management Process Standard (the “RMP Standard”) that Federal agencies use in the protection of the real property they occupy, including the protection of persons on the property. The goal of the RMP Standard is a level of protection commensurate with the level of risk. ISC policies do not supersede other laws, regulations, and executive orders that are intended to protect unique assets.

            § 102-81.15
             What are the governing authorities for this part?
            The governing authorities are as follows:
            (a) 40 U.S.C. 121(c) and 581.
            (b) Executive Order 12977.
            (c) Executive Order 13286, sec. 23.
            (d) 6 U.S.C. 232.
            (e) Homeland Security Presidential Directive 12.
            (f) REAL ID Act of 2005 (Pub. L. 109-13).

            § 102-81.20
             Who must comply with these provisions?
            Each occupant agency in a Federal facility or on Federal grounds under the jurisdiction, custody or control of GSA, including those facilities and grounds that have been delegated by the Administrator of General Services, must cooperate and comply with these provisions, except where the Director of National Intelligence determines that compliance would jeopardize intelligence sources and methods or the Secretary of Energy determines that compliance would conflict with the authorities of the Secretary of Energy over Restricted Data and Special Nuclear Material under, among others, sections 141, 145, 146, 147, and 161 of the Atomic Energy Act of 1954, as amended, the Department of Energy Organization Act, or any other statute.

          Subpart B—Physical Security

            § 102-81.25
             Who is responsible for implementing, maintaining and upgrading physical security standards in each Federally owned and leased facility?

            Each occupant agency in a Federal facility or on Federal grounds under the jurisdiction, custody or control of GSA, including those facilities and grounds that have been delegated by the Administrator of General Services, is responsible for meeting physical security standards in accordance with ISC standards, policies and recommendations. Occupant agency or FSCs use the facility security assessment reports they receive from FPS to inform deliberations regarding recommended countermeasures and other security related actions. GSA will facilitate the implementation of the countermeasures or other actions after occupant agency or FSC approval, and commitment of each occupant agency to pay its pro rata share of the cost.

            § 102-81.30
             Are there any special considerations for existing facilities?

            As provided in subsection 5.2.2 of the RMP Standard, for existing Federal facilities, both leased and government-owned, the RMP Standard is applied as part of the periodic risk assessment process. The security organization will conduct a periodic risk assessment and recommend countermeasures and design features to be implemented at the facility. The FSC will determine whether the recommended countermeasures will be implemented or if risk will be accepted. The design and implementation of approved countermeasures at existing facilities must comply with applicable laws, regulations and executive orders. For approved countermeasures that cannot be implemented immediately, a plan to phase in countermeasures and achieve compliance must be instituted and documented in accordance with the RMP Standard. In some cases, the implementation of countermeasures must be delayed until renovations or modernization programs occur.

            § 102-81.31
             Are there any special considerations for leased facilities or new construction?
            Yes. GSA will coordinate with the occupant agency and the security organization responsible for the Federal facility when determining the applicable physical security clauses to use in the procurement package.

      [FR Doc. 2020-04268 Filed 3-2-20; 8:45 am]
       BILLING CODE 6820-14-P


        DEPARTMENT OF COMMERCE
        International Trade Administration
        19 CFR Part 351
        [Docket No. 130917809-3809-01]
        RIN 0625-AA96
        Non-Application of Previously Withdrawn Regulatory Provisions Governing Targeted Dumping in Antidumping Duty Investigations

          AGENCY:
          Import Administration, International Trade Administration, Department of Commerce.

          ACTION:
          Proposed rule and request for comments.

          SUMMARY:

           Import Administration proposes not to apply, upon the effective date of this rule if implemented, the previously withdrawn regulatory provisions governing targeted dumping in antidumping duty investigations. Following the Court of International Trade's decision in Gold East (Jiangsu) Paper Co. v. United States, Import Administration is seeking comments from parties to clarify the status of the previously withdrawn regulatory provisions with regard to antidumping duty investigations. Import Administration also invites comment on the effect of this proposed rulemaking on recent modifications to its regulations concerning the calculation of the weighted-average dumping margin and assessment rate in certain antidumping proceedings.

          DATES:
           To be assured of consideration, written comments must be received no later than October 31, 2013.

          ADDRESSES:

          All comments must be submitted through the Federal eRulemaking Portal at http://www.regulations.gov, Docket No. ITA-2013-0002, unless the commenter does not have access to the Internet. Commenters that do not have access to the Internet may submit the original and one electronic copy of each set of comments by mail or hand delivery/courier. All comments should be addressed to Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration, Room 1870, Department of Commerce, 14th Street and Constitution Ave. NW., Washington, DC 20230. Comments submitted to the Department will be uploaded to the eRulemaking Portal at www.Regulations.gov.

          The Department will consider all comments received before the close of the comment period. The Department will not accept comments accompanied by a request that part or all of the material be treated confidentially because of its business proprietary nature or for any other reason. All comments responding to this notice will be a matter of public record and will be available on the Federal eRulemaking Portal at www.Regulations.gov.

          Any questions concerning file formatting, document conversion, access on the Internet, or other electronic filing issues should be addressed to Moustapha Sylla, Import Administration Webmaster, at (202) 482-4685, email address: webmaster-support@ita.doc.gov.

          FOR FURTHER INFORMATION CONTACT:
          James Maeder at (202) 482-3330; Charles Vannatta at (202) 482-4036; or Melissa Brewer (202) 482-1096.

        SUPPLEMENTARY INFORMATION:

        Background

        On December 10, 2008, the Department of Commerce (“the Department”) withdrew certain regulatory provisions governing targeted dumping in antidumping investigations. Withdrawal of the Regulatory Provisions Governing Targeted Dumping in Antidumping Duty Investigations, 73 FR 74930 (Dec. 10, 2008) (“Withdrawal Notice”). In the Withdrawal Notice, the Department explained that in antidumping duty investigations it normally calculates dumping margins by one of two methods: (1) By comparing the weighted average of the normal values to the weighted average of the export prices for comparable merchandise (known as the average-to-average method); or (2) by comparing the normal values of individual transactions to the export prices of individual transactions for comparable merchandise (known as the transaction-to-transaction method). Id. at 74930 (citing 19 U.S.C. 1677f-1(d)(1)(A)). The statute also provides for an exception to these two comparison methods when the Department finds that there is a pattern of export prices for comparable merchandise that differ significantly among purchasers, regions, or periods of time, and where such differences cannot be taken into account using one of the above-described methods. Id. (citing 19 U.S.C. 1677f-1(d)(1)(B)). When these criteria are satisfied, the Department may compare the weighted average of the normal values to the export price of individual transactions for comparable merchandise (known as the average-to-transaction method). Id. In the Withdrawal Notice, the Department explained that in promulgating the regulations that established criteria for analyzing this issue, it “may have established thresholds or other criteria that may have prevented the use of this comparison methodology to unmask dumping, contrary to the Congressional intent.” Id. at 74931. For this reason, the Department withdrew the targeted dumping regulations, specifically 19 CFR 351.414(f) and (g), effective immediately. Id. Since the Withdrawal Notice, the Department has not applied the withdrawn regulations in antidumping duty investigations. No party has challenged as a stand-alone claim that this rulemaking violated the Administrative Procedure Act's (“APA”) requirements.

        On June 17, 2013, the Court of International Trade issued an opinion in Gold East (Jiangsu) Paper Co. v. United States, Ct. No. 10-00371, Slip Op. 13-74 (June 17, 2013), remanding certain matters to the Department. Among them, the Court of International Trade ordered the Department, on remand, to reconsider its final determination in that proceeding as it applies to Gold East (Jiangsu) Paper Co. and to apply the withdrawn regulations. The Court disagreed with the Department's determination that the regulations were not applicable to Gold East (Jiangsu) Paper Co. in that antidumping investigation because the regulations had been properly withdrawn. During the underlying investigation, Gold East (Jiangsu) Paper Co. argued that the Department had improperly withdrawn the targeted dumping regulations because it did not satisfy the APA's notice and comment requirements.1

           Gold East (Jiangsu) Paper Co. claimed that the regulations were still in effect and that the Department should apply the alternative comparison method to only the sales that are targeted rather than to all sales. See 19 CFR 351.414(f)(2) (2007). The Department disagreed and determined that the regulations were properly withdrawn in 2008 in the Withdrawal Notice and, thus, did not apply to the underlying investigation. Therefore, the Department, consistent with its practice following the withdrawal of the regulations, applied the alternative comparison method to all of Gold East (Jiangsu) Paper Co.'s sales. Gold East (Jiangsu) Paper Co. appealed the Department's determination to apply the alternative comparison method to all sales to the Court of International Trade.

            1 See Certain Coated Paper Suitable for High-Quality Print Graphics Using Sheet-Fed Presses from the People's Republic of China: Final Determination of Sales at Less than Fair Value, 75 FR 59217 (Sept. 27, 2010), and Issues and Decision Memorandum at cmt. 3, as amended by Certain Coated Paper Suitable for High-Quality Print Graphics Using Sheet-Fed Presses from the People's Republic of China: Amended Final Determination of Sales at Less than Fair Value and Antidumping Duty Order, 75 FR 70203 (Nov. 17, 2010) (“Final Determination”).

        The Department continues to defend its position that the withdrawal of the targeted dumping regulations in the Withdrawal Notice was proper and that the withdrawn regulations are not operative. However, the Department recognizes that the Court of International Trade in Gold East (Jiangsu) Paper v. United States agreed with Gold East (Jiangsu) Paper Co.'s argument that the regulations should be applied to its dumping margin calculations in that proceeding because there was a procedural defect in the rulemaking process that withdrew the targeted dumping regulations. Therefore, without prejudice to the United States government's right to appeal the decision in Gold East (Jiangsu) Paper v. United States, or to argue in other cases before the Court of International Trade that the withdrawn regulations should not be applied in antidumping duty investigations after the withdrawal was made effective in 2008, the Department has determined to issue this proposed rule to clarify the status of the previously withdrawn regulations pursuant to APA notice and comment procedures and to invite comment.
        Proposed Provision

        The Department proposes to continue to not apply the withdrawn provisions governing targeted dumping in antidumping investigations, implemented previously through the Withdrawal Notice. This rulemaking would be effective for proceedings initiated on or after 30 days following the date of publication of the final rule.
        The Department invites parties to comment on this proposed rulemaking and the proposed effective date. Further, any party may submit comments expressing its disagreement with the Department's proposal and may propose an alternative approach. If any party believes that the Department should reinstate the previously withdrawn regulations, that party should explain how to reinstate the withdrawn regulations and include suggestions on how to codify such reinstatement, as well as any suggestions on the effective date.

        The Department also invites comment on the effect of this proposed rulemaking on recent modifications to 19 CFR 351.414. On February 14, 2012, the Department published Calculation of the Weighted-Average Dumping Margin and Assessment Rate in Certain Antidumping Proceedings; Final Modification, 77 FR 8101 (Feb. 14, 2012) (“Final Modification for Reviews”). In the Final Modification for Reviews, the Department modified the regulations governing comparison methods to be applied in antidumping investigations and administrative reviews. The Final Modification for Reviews revised 19 CFR 351.414, the section of the regulations that previously included the withdrawn targeted dumping regulations. The Final Modification for Reviews applies to preliminary results of review issued after April 16, 2012.
        Classifications
        Executive Order 12866
        It has been determined that this proposed rule is not significant for purposes of Executive Order 12866 of September 30, 1993 (“Regulatory Planning and Review”) (58 FR 51735 (October 4, 1993)).
        Paperwork Reduction Act
        This proposed rule contains no new collection of information subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.
        Executive Order 13132
        This proposed rule does not contain policies with federalism implications as that term is defined in section 1(a) of Executive Order 13132, dated August 4, 1999 (64 FR 43255 (August 10, 1999)).
        Regulatory Flexibility Act
        The Chief Counsel for Regulation has certified to the Chief Counsel for Advocacy of the Small Business Administration (“SBA”) under the provisions of the Regulatory Flexibility Act, 5 U.S.C. 605(b), that the proposed rule would not have a significant economic impact on a substantial number of small business entities. A summary of the need for, objectives of, and legal basis for this rule is provided in the preamble, and is not repeated here.
        The entities upon which this rulemaking could have an impact include foreign exporters and producers, some of whom are affiliated with U.S. companies, and U.S. importers. IA currently does not have information on the number of entities that would be considered small under the Small Business Administration's size standard for small business. However, some of these entities may be considered small entities under that standard. Although this rule may impact small entities, this rule is not expected to have a significant economic impact. The administrative action proposed herein is a continuation of the Department's practice. No additional compliance measures or expenditure would be required of entities. Moreover, the previously withdrawn regulations did not regulate the entities that practice before the Department. Rather, the withdrawn regulations governed what methodology the Department applied in a particular case. Specifically, the withdrawn regulations instructed the Department on how to compare normal value and export price or constructed export price under certain factual scenarios. Therefore, the Department does not anticipate that the proposed rule would have a significant economic impact on a substantial number of small business entities. For this reason, an Initial Regulatory Flexibility Analysis is not required and one has not been prepared.

          Dated: September 20, 2013.
          Paul Piquado,
          Assistant Secretary for Import Administration.

      [FR Doc. 2013-23646 Filed 9-30-13; 8:45 am]
      BILLING CODE 3510-DS-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No. 100513223-0254-01]
        RIN 0648-AY88
        Fisheries of the Northeastern United States; Atlantic Deep-Sea Red Crab Fisheries; 2010 Atlantic Deep-Sea Red Crab Specifications In-season Adjustment

          AGENCY:
           National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
           Proposed rule; request for comments.

          SUMMARY:
           In May 2010, NMFS finalized 2010 specifications for the Atlantic deep-sea red crab fishery, including a target total allowable catch (TAC) and a fleet-wide days-at-sea (DAS) allocation. However, the implementing regulations for the Atlantic Deep-Sea Red Crab Fishery Management Plan (FMP) allow NMFS to make an in-season adjustment to the specifications, after consulting with the New England Fishery Management Council (Council). The intent of this rulemaking is to adjust the target TAC and corresponding fleet DAS allocation equivalent to the revised recommendation by Council's Scientific and Statistical Committee (SSC).

          DATES:
           Written comments must be received no later than 5 p.m. eastern standard time, on July 7, 2010.

          ADDRESSES:
           You may submit comments, identified by 0648-AY88, by any one of the following methods:

          • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal http://www.regulations.gov.

          • Fax: (978) 281-9135, Attn: Regional Administrator.
          • Mail: Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope: “Comments on 2010 Red Crab In-season Adjustment.”

          Instructions: No comments will be posted for public viewing until after the comment period has closed. All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.
          NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
          Copies of the specifications document, including the Supplemental Environmental Assessment and Supplemental Regulatory Flexibility Analysis and other supporting documents for the in-season adjustment, are available from Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 01930.

          FOR FURTHER INFORMATION CONTACT:
           Moira Kelly, Fishery Policy Analyst, (978) 281-9218.

        SUPPLEMENTARY INFORMATION:
        Background

        For fishing year (FY) 2010, the Council was required to establish specifications for the red crab fishery consistent with the best available scientific information. In September 2009, the Council's SSC recommended a maximum sustainable yield (MSY) for red crab within the range 3.75 4.19 million lb (1,700-1,900 mt), which was consistent with the most recent stock assessment (conducted by the Northeast Fisheries Science Center's 2008 Data Poor Stocks Working Group), and recommended that the interim acceptable biological catch (ABC) be set commensurate with recent catch. At the time, the SSC determined recent catch to be the amount of red crab landed in FY 2007, which was 2.83 million lb (1,284 mt). The landings in FY 2007 were the lowest since the implementation of the FMP in 2002. During the Council's review of the SSC's recommendation at its September and November 2009 meetings, the Council requested the SSC reconsider its recommendations, and recommended that the FY 2010 specifications for red crab be set equal to those implemented under the 2009 red crab emergency action implemented by NMFS (74 FR 9770, March 6, 2009), i.e., a target TAC of 3.56 million lb (1,615 mt) and 582 fleet DAS.

        In response to the request from the Council to reconsider its recommendation, the SSC met on March 16-17, 2010, and determined that the interim ABC for red crab should be revised. The SSC has determined that the model results from the December 2008 Data Poor Stocks Working Group are an underestimate of MSY, but could not determine by how much, and did not recommend an estimate of MSY. The SSC now recommends that the ABC for red crab be set equal to long-term (1974-2008) average landings (3.91 million lb; 1,775 mt). The SSC considers this level of landings to be sustainable and comfortably below the actual, but undetermined, MSY level.
        Because NMFS does not have the regulatory authority to establish a target TAC greater than that recommended by the Council in the May 14, 2010 final rule implementing the FY 2010 red crab specifications (75 FR 27219), that rule set the specifications equal to the Council's November 2009 recommendation for a target TAC of 3.56 million lb (1,615 mt) and a corresponding allocation of 582 fleet DAS. However, the regulations for red crab do allow for an in-season adjustment of the specifications, as set forth in § 648.260(a)(3), after consultation with the Council and an opportunity for additional public comment. The Council met on April 28, 2010, and has recommended adjusting the red crab specifications in accordance with the SSC's revised recommended catch level of 3.91 million lbs, or 1,775 mt. With the Council's new recommendation of a target TAC for red crab of 3.91 million lbs (1,775 mt), NFMS now proposes an in-season adjustment.
        Proposed Specifications
        NMFS is proposing to implement the SSC's revised recommended catch level as the adjusted target TAC for the FY 2010 red crab fishery. This would result in a target TAC of 3.91 million lb (1,775 mt). Using the most recent calculation of average landings-per-DAS charged (5,882 lb/DAS (2,668 kg/DAS) charged from FY 2005-2009), the corresponding fleet DAS allocation would be 665 DAS.
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has preliminarily determined that this proposed rule is consistent with the Atlantic Deep-Sea Red Crab FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

        An IRFA has been prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA consists of relevant portions of this preamble and the environmental assessment for this action. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this preamble and in the SUMMARY. A summary of the analysis follows. A copy of this analysis is available from the Regional Administrator (see ADDRESSES).
        There are no large entities, as defined in section 601 of the RFA, that participate in this fishery; therefore, there are no disproportionate effects on small versus large entities. Information on costs in the fishery are not readily available, and individual vessel profitability cannot be determined directly; therefore, changes in gross revenues were used as a proxy for profitability. In the absence of quantitative data, qualitative analyses were conducted.
        The participants in the commercial sector are the owners of vessels issued limited access red crab vessel permits. There are five limited access red crab vessel permits, although only three vessels participated in the fishery in FY 2009.
        The IRFA in the Supplemental EA analyzed the revised recommendation for establishing a target TAC and fleet-wide DAS allocation for FY 2010. The revised recommended specifications would set the target TAC equal to 3.91 million lb (1,775 mt), and the fleet DAS would be 665. The fleet DAS would be divided by the five current limited access permits, or less depending on the number of permits that declare out of the fishery. One of the limited access permits has been declared out of the fishery each year since 2004, including FY 2010. If the DAS are allocated equally to the four vessels that have been actively fishing this year, the DAS per vessel would be 166.
        Under the Council's revised recommended specifications, approximately $350,000 of additional potential revenue could be available to the red crab fleet compared to NMFS' originally implemented FY 2010 specifications. The target TAC in this proposed rule is is greater than the average of the past 4 years' landings, 2 of which were higher, and 2 lower. For the past 2 years, the fleet has landed less than the target TAC recommended by the Council. Whereas a reduced demand for red crab in recent years has been responsible for the shortfall in landings compared to the target TAC, red crab vessel owners have invested heavily in a new processing plant in New Bedford, MA, and have developed new marketing outlets with hopes to increase demand for their product. Accordingly, NMFS anticipates a greater likelihood that red crab landings will be closer to the target TAC in FY 2010.

          Dated: June 16, 2010.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

          List of Subjects in 50 CFR Part 648
          Fisheries, Fishing, Reporting and recordkeeping requirements.

        For the reasons stated in the preamble, 50 CFR part 648 is proposed to be amended as follows:

          PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

        1. The authority citation for part 648 continues to read as follows:

          Authority:
          16 U.S.C. 1801 et seq.

        2. In § 648.260, paragraph (a)(1) is revised to read as follows:

          § 648.260
          Specifications.
          (a) * * *
          (1) Target total allowable catch. The target TAC for each fishing year will be 3.910 million lb (1,775 mt), unless modified pursuant to this paragraph.

        3. In § 648.262, paragraph (b)(2) is revised to read as follows:

          § 648.262
          Effort-control program for red crab limited access vessels.
          (b) * * *
          (2) For fishing year 2010 and thereafter. Each limited access permit holder shall be allocated 133 DAS unless one or more vessels declares out of the fishery consistent with § 648.4(a)(13)(i)(B)(2) or the TAC is adjusted consistent with § 648.260.

      [FR Doc. 2010-15059 Filed 6-21-10; 8:45 am]
      BILLING CODE 3510-22-S