Federal Register Vol. 81, No.179,

A national bank may engage in activities that are part of, or incidental to, the business of banking under 12 U.S.C. 24(Seventh). Section 24(Seventh) lists several activities that are part of the business of banking; for example, it expressly provides that national banks may buy and sell exchange, coin, and bullion.

In addition to these enumerated powers, section 24(Seventh) authorizes national banks to exercise all such incidental powers as shall be necessary to carry on the business of banking. National banks also are authorized to engage in any other activities not expressly enumerated in the statute that the Comptroller of the Currency reasonably determines are part of the business of banking.1

In Interpretive Letter 693,2 issued approximately twenty years ago, the OCC authorized national banks to buy and sell copper on the grounds that trading copper was becoming increasingly similar to trading gold, silver, platinum, and palladium. The letter observed that copper was traded in liquid markets; that it was traded in a form standardized as to weight and purity; and that the bank seeking authority to engage in the activity traded copper under policies and procedures similar to those that governed trading precious metals. The letter concluded that national banks could buy and sell copper under the express authority to buy and sell coin and bullion and as part of or incidental to the business of banking. The scope of the authorization in Interpretive Letter 693 was sufficiently broad to permit national banks to buy and sell copper in the form of cathodes, which are used for industrial purposes.

In this notice of proposed rulemaking, the OCC proposes to prohibit national banks from dealing and investing in a metal (or alloy), including copper, in a form primarily suited to industrial or commercial use (industrial or commercial metal).3 The proposal: (i) Excludes industrial and commercial metals from the terms “exchange,” “coin,” and “bullion” in 12 U.S.C. 24(Seventh); and (ii) provides that dealing or investing in them is not part of, or incidental to, the business of banking. Examples of metals and alloys in a form primarily suited for industrial or commercial use include copper cathodes, aluminum T-bars, and gold jewelry. The OCC does not believe that dealing or investing in these metals is appropriate for national banks. The proposed rule would supersede Interpretive Letter 693.4

The proposed rule also applies to federal savings associations (FSA). The Home Owners' Loan Act does not expressly authorize FSAs to buy or sell exchange, coin, and bullion.5 FSAs do have incidental authority to buy and sell precious metals in certain cases and to sell gold and silver coins minted by the U.S. Treasury.6 However, the OCC is not aware of any precedent authorizing FSAs to buy and sell any industrial or commercial metal. The OCC does not interpret FSAs' incidental powers to buy and sell metals to be broader than those of national banks. To avoid doubt, and to further integrate national bank and FSA regulations, the proposed rule prohibits FSAs from dealing and investing in industrial or commercial metal.7

As noted above, the National Bank Act authorizes national banks to buy and sell exchange, coin, and bullion. In this notice of proposed rulemaking, the OCC is proposing to exclude from the scope of these terms metals in a form primarily suited to industrial or commercial use.

Banking Circular 58 (BC-58) 8 sets forth general guidelines that apply to national banks' coin and bullion activities. It defines “coin” as “coins held for their metallic value which are minted by a government, or exact restrikes of such coins minted at a later date by or under the authority of the issuing government.” Contemporaneous OCC interpretive letters elaborated that “coin” referred only to media of exchange.9 BC-58 defines “bullion” as “uncoined gold or silver in bar or ingot form.” These definitions do not encompass industrial or commercial metal.

Interpretive letters published after BC-58 interpreted national banks' authority to buy coin and bullion to include other precious metals, namely platinum and palladium. Consistent with BC-58's definition of “coin,” the OCC in 1987 found that legal tender platinum coins held for their metallic value were “coin.” 10 That same letter prohibited dealing in platinum bars. However, in 1991, the OCC concluded that market developments warranted treating platinum bars as bullion.11 The OCC also found trading in platinum bars to be incidental to trading in platinum coins.12 For similar reasons, the OCC concluded palladium was coin and bullion and national banks could trade and deal in palladium as part of the business of banking.13 In support of its position, the OCC noted that the London Platinum and Palladium Market had linked platinum and palladium for market making and regulatory purposes and that most of the Market's members were banks.

However, other interpretive letters recognized that not every precious metal is coin or bullion. Jewelry, the OCC determined, is not.14

The OCC proposes to conclude that “exchange, coin, and bullion” does not encompass industrial or commercial metal. The OCC believes this conclusion is consistent with the National Bank Act and current market practice. For example, in the mid-19th century, when Congress passed the National Bank Act, “bullion” meant metal suitable for coining, not metal suitable for making wires.15 The contemporary understanding of “bullion” is broader—most currency is no longer made of precious metal—but the contemporary understanding does distinguish bullion from industrial or commercial metal. For example, modern bullion markets trade precious metals by the kilogram.16 By contrast, industrial and commercial metals markets trade base metals in quantities suitable for industrial or commercial use.17 The following table illustrates trading differences between bullion markets and industrial or commercial metal markets.

In general, gold, silver, platinum, and palladium are bullion today because they:

• Trade in troy ounces or grams rather than metric tons; 18

• Trade in pure forms; 19

• Trade in a form suitable for coining;

• Trade as precious metals in the world's major organized markets, including the London bullion markets; and

• Are considered currency by the International Organization for Standardization.20

Gold, silver, platinum, and palladium in industrial or commercial form are not exchange, coin, or bullion.

Interpretive Letter 693 concluded that national banks could buy and sell copper (including industrial copper) as a part of or incidental to the business of banking. The OCC has reviewed the bases for the conclusion in Interpretive Letter 693 that buying and selling industrial copper is part of the business of banking, including developments in copper markets that followed this letter. For the following reasons, the OCC now believes that buying and selling copper—or any other metal—in industrial or commercial form for the purpose of dealing or investing in that metal is not part of the business of banking.

When the OCC issued Interpretive Letter 693 in 1995, the agency noted increasing similarity between transactions involving copper and those transactions already conducted by national banks with respect to gold, silver, platinum and palladium (precious metals). This increasing similarity informed the OCC's view at that time that buying and selling copper, including dealing and investing, was part of the business of banking. However, copper markets have not increased in similarity to precious metal markets.21 Instead, as noted in detail above, copper is generally traded as a base metal.22

The OCC believes that dealing and investing in industrial or commercial metals, including base and precious metals in this form, is not the functional equivalent of dealing and investing in coin and bullion. The paradigmatic example of functional equivalence is that a lease is in economic substance a secured loan.23 But the significant differences between dealing in industrial or commercial metals and dealing in coin and bullion demonstrate that the former is not, in economic substance, the same as the latter. Most importantly, industrial and commercial metals trade in base metal markets by the ton in cathode or other industrial form, while coin and bullion trade in precious metal markets by the troy ounce or kilogram in bar or ingot form. In addition, banks' risk management systems distinguish between precious metals and base metals.

The OCC has also considered other factors identified in relevant precedent for determining whether dealing in or investing in industrial or commercial metal is part of the business of banking.24 The OCC does not believe that analysis under these factors supports a conclusion at this time that this activity is part of the business of banking. For example, the OCC has not seen evidence that this activity strengthens a bank by benefiting its customers or its business.25 Nor is the OCC aware of any state-chartered banks dealing in or investing in industrial or commercial metal.26 Indeed, the OCC has not identified any precedent authorizing that activity for state banks.

As described above, under 12 U.S.C. 24 (Seventh), a national bank has the power to exercise all such incidental powers as shall be necessary to carry on the business of banking. An activity is incidental to the business of banking if it is convenient or useful to an activity that is part of the business of banking.27

The OCC believes that dealing and investing in industrial or commercial metal is not incidental to the business of banking. Some customers may wish to trade industrial or commercial metal with national banks. However, because few banks buy or sell industrial or commercial metal in the ordinary course of business, it does not appear that dealing or investing in industrial or commercial metal significantly enhances national banks' ability to offer banking products and services, including those related to precious metals. Moreover, dealing and investing in industrial or commercial metal does not appear to enable national banks to use capacity acquired for banking operations or otherwise avoid economic loss or waste. Therefore, the OCC concludes national banks may not deal or invest in industrial or commercial metal under their incidental powers.

National banks do have incidental authority to buy and sell industrial or commercial metal in limited cases. Buying or selling industrial or commercial metal could be incidental to lending activities. For example, a mining company could post a copper cathode as collateral for a loan. Pursuant to the national bank's authority to acquire property in satisfaction of debt previously contracted, the bank could seize and then sell the copper to mitigate loan losses if the borrower defaulted.28 National banks also have incidental authority to buy and sell nominal amounts of industrial or commercial metal to hedge customer-driven commodity derivatives.29 The proposed rule would not prohibit these purchases and sales because they are not dealing or investing.30

The OCC views national banks' lending authority 31 as including buying and selling industrial or commercial metal under reverse repurchase agreements that are the functional and economic equivalent of secured loans. As described below, a standard reverse repurchase agreement for metal used to provide financing to a bank customer ordinarily does not indicate dealing or investing in the metal. However, the OCC notes that the facts and circumstances of a particular transaction may warrant a different conclusion. For example, to the extent a reverse repurchase agreement or related activity is structured in a way that causes a bank to incur commodity price risk or indicates market speculation, the OCC may view the transaction to be dealing or investing in the metal.

In a reverse repurchase agreement, a bank extends credit by simultaneously buying collateral from a client and agreeing to sell the collateral back to the client at a future date. The difference between the sale and purchase price is effectively the interest the client pays for the extension of credit. If the reverse repurchase agreement counterparty defaults, the bank can mitigate its losses by selling the collateral without first foreclosing on it. Financing customer inventory is a traditional bank activity; using reverse repurchase agreements rather than loans to provide the financing is merely a different way of providing financing.32 Financing customer inventory using reverse repurchase agreements in itself does not indicate dealing or investing in the metal. However, pledging, selling, or rehypothecating metal acquired under reverse repurchase agreements suggests dealing or investing activity. So, too, does assuming commodity price risk. For example, an agreement in which the counterparty sells a metal at a certain price to the bank and then repurchases the metal at a price that depends on the metal's then-current market price indicates dealing or investing activity: The bank is assuming the metal's price risk. On the other hand, setting the repurchase price at the sale price plus a spread based on the time value of money is equivalent to a secured loan.

The OCC invites comment on the treatment of reverse repurchase agreements under the proposed rule. In particular, the OCC seeks comment on whether reverse repurchase agreements that do not present commodity price risk for a bank and do not indicate market speculation are appropriately viewed to not indicate dealing or investing in metal. The OCC also seeks comment on whether there are forms of reverse purchase agreements or related activities that warrant a determination that the activity is dealing or investing in metal. If so, should the OCC include such agreements in the final rule's dealing or investing prohibition?

The proposal does not prohibit national banks from buying and selling metal through transitory title transfers entered into as part of a customer-driven financial intermediation business.33 Metal owned through a transitory title transfer typically does not entail physical possession of a commodity; the ownership occurs solely to facilitate the underlying transaction and lasts only for a moment in time. For these reasons, the OCC does not consider transitory title transfers to be dealing or investing in industrial or commercial metal for purposes of this proposal. Interpretive Letter 1073 34 provides that national banks may hedge metal derivative transactions on a portfolio basis with over-the-counter derivative transactions that settle in cash or transitory title transfer. Interpretive Letter 1073 also provides that a national bank may engage in transitory title transfers in metals for the accommodation of customers. The OCC concluded in Interpretive Letter 1073 that transitory title transfers involving metals do not entail the physical possession of commodities.35 The OCC's analysis in this letter noted that transitory title transfers do not involve the customary activities relating to, or risks attendant to, commodity ownership, such as storage costs, insurance, and environmental protection. The OCC continues to believe that transitory title transfers do not constitute physical possession of commodities and therefore does not consider transitory title transfers to be dealing or investing in industrial or commercial metal for purposes of this proposal.36

Notwithstanding the above, the OCC may consider alternative approaches for transitory title transfers in the final rule if it determines that these transactions present risks similar to holding physical metal. The OCC invites comment on whether it should continue to view transitory title transfers as transactions that do not entail physical possession of a commodity. In particular, the OCC seeks comment on whether transitory title transfers involving metals present risks that warrant treating such transactions as physical holdings. If so, then the prohibition on dealing and investing in industrial or commercial metal would apply to metals bought or sold by transitory title transfer.37

The OCC invites comment on all aspects of this proposal, including the questions in part II.C of this Supplementary Information.

In addition, the OCC requests comment on the appropriate treatment of existing holdings of industrial or commercial metal. In other contexts, the OCC provides five years to divest nonconforming assets, with the possibility of a five-year extension. Are there reasons a similar approach would not work here? Are there compelling reasons to grandfather existing holdings indefinitely?

Under the Paperwork Reduction Act, 44 U.S.C. 3501-3520, the OCC may not conduct or sponsor, and a person is not required to respond to, an information collection unless the information collection displays a valid Office of Management and Budget (OMB) control number. This notice of proposed rulemaking does not introduce any new collections of information, therefore, it does not require a submission to OMB.

The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (RFA), requires an agency, in connection with a proposed rule, to prepare an Initial Regulatory Flexibility Analysis describing the impact of the proposed rule on small entities (defined by the Small Business Administration (SBA) for purposes of the RFA to include banking entities with total assets of $550 million or less) or to certify that the proposed rule would not have a significant economic impact on a substantial number of small entities.

As of December 31, 2015, the OCC supervised 1,032 small entities.38 Although the rule applies to all OCC-supervised small entities, and thus affects a substantial number of small entities, no small entities supervised by the OCC currently buy or sell metal in a physical form primarily suited to commercial or industrial use for the purpose of dealing or investing in that metal. Thus, the rule will not have a substantial impact on any OCC-supervised small entities.

Therefore, the OCC certifies that the proposed rule would not have a significant economic impact on a substantial number of OCC-supervised small entities.

The OCC analyzed the proposed rule under the factors set forth in the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532). Under this analysis, the OCC considered whether the proposed rule includes a federal mandate that may result in the expenditure by state, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (adjusted annually for inflation).

Although the proposed rule would apply to all OCC-supervised institutions, very few of these institutions are currently involved in activities involving dealing or investing in copper or other metals in a physical form primarily suited to commercial or industrial use.

While the proposed rule may prevent OCC-supervised institutions from realizing potential gains from prohibited investments in physical metals, the proposed rule also may protect them from realizing potential losses from investments in physical metals. The OCC is not able to estimate these potential gains or losses because they will depend on future fluctuations in the prices of the various physical metals. However, the OCC does expect OCC-supervised institutions to be able to achieve comparable returns in alternative non-prohibited investment opportunities. Thus, the OCC estimates that the opportunity cost of the proposed rule will be near zero.

The proposed rule may impose one-time costs on affected institutions with respect to the disposal of current physical metal inventory that a bank may not deal in or invest in under the rule. This cost will depend to some extent on the amount of physical metal inventory that affected institutions must dispose of. However, a gradual sell-off should not affect market prices and the affected institutions would receive fair value for their metals. Under these circumstances, the OCC estimates that the disposal costs will also be minimal.

Finally, by establishing that buying and selling physical metal in commercial or industrial form is generally not part of the business of banking, the rule implies that customers of OCC-supervised institutions will have to identify another reliable source of supply of physical metals and that OCC-supervised institutions will be less able to compete with non-bank metals dealers. Given how technology has made the physical metals markets more accessible, the OCC expects bank customers will face minimal costs associated with identifying another supplier of physical metals. The OCC also expects that losing the ability to compete with non-bank metal dealers will not significantly detract from the strength of OCC-supervised institutions, especially given that the proposed rule would recognize several business-of-banking exceptions to the prohibition on buying and selling physical metal.

For the reasons described above, the OCC has determined that the proposed rule would not result in expenditures by state, local, and Tribal governments, or by the private sector, of $100 million or more. Accordingly, the OCC has not prepared a written statement to accompany the proposed rule.

For the reasons set forth in the preamble, OCC proposes to amend 12 CFR part 7 as follows:

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9075; Directorate Identifier 2016-NM-082-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

We have received a report indicating that a portion of the sealant above the engine pylon between the wing skin and the vapor barrier may have been omitted due to a manufacturing sequencing issue. This condition, if not corrected, can create an unintended leak path for fuel, potentially draining onto the aft fairing heat shield above the engine and onto hot engine parts or brakes, which could lead to a major ground fire.

We reviewed Boeing Alert Service Bulletin B787-81205-SB570029-00, Issue 001, dated February 23, 2016. The service information describes procedures for doing an inspection for missing sealant in the seam on the outside and inside of the engine struts, and installing missing sealant. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require accomplishing the actions specified in the service information described previously. For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9075.

The phrase “corrective actions” is used in this proposed AD. Corrective actions correct or address any condition found. Corrective actions in an AD could include, for example, repairs.

We estimate that this proposed AD affects 32 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

We estimate the following costs to do any necessary repairs that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these repairs:

According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all available costs in our cost estimate.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

I. Background

The Fair and Accurate Credit Transactions Act (“FACTA” or “Act”) was enacted in 2003. In part, the Act amends the Fair Credit Reporting Act (“FCRA”) by imposing a requirement that any person that maintains or otherwise possesses consumer information, or any compilation of consumer information, derived from consumer reports for a business purpose, properly dispose of any such information or compilation.1 The Act also required the Commission and other federal agencies to promulgate rules regarding this requirement.2 Further, the Act directed the Commission and other federal agencies to ensure that the rules were consistent with the requirements of the Gramm-Leach-Bliley Act (“GLBA”).3

Pursuant to the Act's directive, the Commission promulgated the Disposal Rule in 2004. The Disposal Rule provides that, unless otherwise stated, terms used in the Rule have the same meaning as set forth in the FCRA.4 The Rule defines “consumer information” as any record about an individual, whether in paper, electronic, or other form, that is a consumer report or is derived from a consumer report. Consumer information also means a compilation of such records. Consumer information does not include information that does not identify individuals, such as aggregate information or blind data.5 In addition, “dispose,” “disposing,” or “disposal” is defined as (1) The discarding or abandonment of consumer information, or (2) The sale, donation, or transfer of any medium, including computer equipment, upon which consumer information is stored.6

The Disposal Rule requires that persons over which the FTC has jurisdiction who maintain or otherwise possess consumer information for a business purpose properly dispose of such information by taking reasonable measures to protect against unauthorized access to or use of the information in connection with its disposal.7 It also includes several examples of what the Commission believes constitute reasonable measures to protect consumer information in connection with its disposal.8 These examples are intended to provide covered entities with guidance on how to comply with the Rule but are not intended to be safe harbors or exclusive methods for compliance.9 The Rule uses a flexible “reasonable measures” standard. The FTC realizes that there are few foolproof methods of record destruction and that entities covered by the Rule must consider their own unique circumstances when determining how to comply with the Rule.

The Disposal Rule became effective on June 1, 2005.

The Commission periodically reviews all of its rules and guides. These reviews seek information about the costs and benefits of the agency's rules and guides, and their regulatory and economic impact. The information obtained assists the Commission in identifying those rules and guides that warrant modification or rescission. Therefore, the Commission solicits comments on, among other things, the economic impact and benefits of the Rule; possible conflict between the Rule and state, local, or other federal laws or regulations; and the effect on the Rule of any technological, economic, or other industry changes.

The Commission requests written comment on any or all of the following questions. These questions are designed to assist the public and should not be construed as a limitation on the issues about which public comments may be submitted. The Commission requests that responses to its questions be as specific as possible, including a reference to the question being answered, and refer to empirical data or other evidence upon which the comment is based whenever available and appropriate.

1. Is there a continuing need for specific provisions of the Rule? Why or why not?

2. What benefits has the Rule provided to consumers? What evidence supports the asserted benefits?

3. What modifications, if any, should be made to the Rule to increase its benefits to consumers?

a. What evidence supports the proposed modifications?

b. How would these modifications affect the costs the Rule imposes on businesses, including small businesses?

4. What significant costs, if any, has the Rule imposed on consumers? What evidence supports the asserted costs?

5. What modifications, if any, should be made to the Rule to reduce any costs imposed on consumers?

a. What evidence supports the proposed modifications?

b. How would these modifications affect the benefits provided by the Rule?

6. What benefits, if any, has the Rule provided to businesses, including small businesses? What evidence supports the asserted benefits?

7. What modifications, if any, should be made to the Rule to increase its benefits to businesses, including small businesses?

a. What evidence supports the proposed modifications?

b. How would these modifications affect the costs the Rule imposes on businesses, including small businesses?

c. How would these modifications affect the benefits to consumers?

8. What significant costs, if any, including costs of compliance, has the Rule imposed on businesses, including small businesses? What evidence supports the asserted costs?

9. What modifications, if any, should be made to the Rule to reduce the costs imposed on businesses, including small businesses?

a. What evidence supports the proposed modifications?

b. How would these modifications affect the benefits provided by the Rule?

10. What evidence is available concerning the degree of industry compliance with the Rule?

11. What modifications, if any, should be made to the Rule to account for changes in relevant technology or economic conditions? What evidence supports the proposed modifications?

12. Does the Rule overlap or conflict with other federal, state, or local laws or regulations? If so, how?

a. What evidence supports the asserted conflicts?

b. With reference to the asserted conflicts, should the Rule be modified? If so, why, and how? If not, why not?

1. Should the Rule be modified to include more specific and prescriptive requirements for disposing of consumer information? Why or why not? If so, what requirements should be included and what sources should they be drawn from?

a. What evidence supports such a modification?

b. How would this modification affect the costs the Rule imposes on businesses, including small businesses?

c. How would this modification affect the benefits to consumers?

2. Should the Rule be modified to delete any of the existing examples or include additional examples to illustrate proper methods for disposing of consumer information? Why or why not? If so, what examples should be included and what sources should they be drawn from?

a. What evidence supports such a modification?

b. How would this modification affect the costs the Rule imposes on businesses, including small businesses?

c. How would this modification affect the benefits to consumers?

3. Should the Rule be modified to reference or incorporate any other information destruction standards or frameworks? If so, which standards should be incorporated or referenced and how should they be referenced or incorporated by the Rule? Should such standards be considered safe harbors for compliance with the Rule?

a. What evidence supports such a modification?

b. How would this modification affect the costs the Rule imposes on businesses, including small businesses?

c. How would this modification affect the benefits to consumers?

4. Under the current Disposal Rule, “Consumer information does not include information that does not identify individuals, such as aggregate information or blind data.” Should the Rule be modified to change the definition of “consumer information”? Should the definition of “consumer information” include information that can be reasonably linked to an individual in light of changes in relevant technology or market practices? Should the Rule be modified to define “aggregate information” or “blind data”?

a. What evidence supports such a modification?

b. How would this modification affect the costs the Rule imposes on businesses, including small businesses?

c. How would this modification affect the benefits to consumers?

You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before November 21, 2016. Write “Disposal Rule, 16 CFR part 682, Project No. 165410” on the comment. Your comment, including your name and your state, will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at https://www.ftc.gov/policy/public-comments. As a matter of discretion, the Commission tries to remove individuals' home contact information from comments before placing them on the Commission Web site. Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, such as a Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or payment card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, such as medical records or other individually identifiable health information.

In addition, do not include any “[t]rade secret or any commercial or financial information which is . . . privileged or confidential,” as discussed in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you must follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comments to be withheld from the public record. Your comment will be kept confidential only if the FTC General Counsel grants your request in accordance with the law and the public interest.

Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comment online. To make sure that the Commission considers your online comment, you must file it at https://ftcpublic.commentworks.com/ftc/disposalrule by following the instructions on the web-based form. If this document appears at http://wwww.regulations.gov, you also may file a comment through that Web site.

If you file your comment on paper, write “Disposal Rule, 16 CFR part 682, Project No. 165410” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex H), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex H), Washington, DC 20024.

Visit the Commission Web site at https://www.ftc.gov to read this document and the news release describing it. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before November 21, 2016. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

The San Diego Sharkfest Swim race is an annual recurring event listed in Table 1, Item 10 of 33 CFR 100.1101, Southern California Annual Marine Events for the San Diego COTP Zone. Special local regulations exist for the marine event to allow for special use of the San Diego Bay, San Diego, CA for this event. 33 U.S.C. 1233, authorizes the Coast Guard to establish and define special local regulations to promote the safety of life on the navigable waters during regattas or marine parades.

The San Diego Sharkfest Swim race is an annual event normally held on a weekend day in September or October on the waters of San Diego Bay, San Diego, CA.

33 CFR 100.1101 lists the annual marine events and special local regulations in Southern California within the San Diego COTP Zone. The enforcement date and regulated location for this marine event are listed in Table 1, Item 10 of Section 100.1101.

The date listed in the Table indicates that the marine event will occur on a Saturday in September or October, on the waters of San Diego Bay, California, from Seaport Village to Coronado Ferry Landing. However, this proposed temporary rule will change the event date to Sunday, October 2, 2016, and the location from Fifth Avenue Landing to Tidelands Park, to reflect the actual date and location of the event.

The regulations in 33 CFR 100.1101 will be temporarily suspended for Table 1, Item 10 of that section and a temporary regulation will be inserted as Table 1, Item 19 of that section in order to reflect that the special local regulation will be effective and enforced from 9:00 a.m. to 10:00 a.m. on October 2, 2016. This change is needed to accommodate the sponsor's event plan and ensure that adequate regulations are in place to protect the safety of vessels and individuals that may be present in the regulated area. No other portion of Table 1 of § 100.1101 or other provisions in § 100.1101 shall be affected by this regulation.

The special local regulations are necessary to provide for the safety of the crew, spectators, participants, and other vessels and users of the San Diego Bay waterway. Persons and vessels will be prohibited from anchoring, blocking, loitering, or impeding within this regulated waterway unless authorized by the COTP, or his designated representative, during the proposed times. Before the effective period, the Coast Guard will publish information on the event in the weekly LNM. The proposed regulatory text appears at the end of this document.

We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget.

This regulatory action determination is based on the size, location, duration, and time-of-day of the special local regulation. Optional waterway routes exist to allow boaters to travel around the marine event area, without impacting the race, once the last swimmer has cleared the middle of the channel. Moreover, the Coast Guard would publish a Local Notice to Mariners about the zone.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities. This proposed rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in the impacted portion of the San Diego Bay, San Diego, CA, from 9:00 a.m. to 10:00 a.m. on October 2, 2016.

This proposed rule would not have a significant economic impact on a substantial number of small entities for the following reasons: Traffic will be allowed to pass around the regulated area once the last swimmer has cleared the middle of the channel with the permission of the COTP, or his designated representative, and the special local regulation is limited in size and duration. Before the effective period, the Coast Guard will publish event information on the Internet in the weekly LNM marine information report, as well as provide a SMIB via marine radio during the event. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under E.O. 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that it is consistent with the fundamental federalism principles and preemption requirements described in E.O. 13132.

Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this proposed rule elsewhere in this preamble.

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves establishment of marine event special local regulations on the navigable waters of the San Diego Bay. It is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination will be available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086).

Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:

I. Background

This proposed rule would create procedures to request removal of certain “personally identifiable information” (“PII”) from the Office's registration records. PII is generally considered to be any information that has the potential to identify a specific individual. The proposed rule concerns two distinct categories of PII as discussed below.

The Office requests and receives certain types of PII during the registration process (e.g., dates of birth, addresses, telephone numbers, fax numbers, and email addresses). The collection of some of that information is mandated by statute or regulation; other information is optional.1 This information is referred to herein as “requested PII.”

The Office does not request, but sometimes receives, additional PII when applicants choose to include information such as driver's license numbers, social security numbers, banking information, and credit card information on their registration applications. Such information is extraneous and unnecessary for the processing and maintenance of copyright registration records. This information is referred to herein as “extraneous PII.”

As explained below, this proposed rule would treat these two categories of PII differently.

With respect to requested PII—information that the Copyright Office purposely collects as part of registration—the Copyright Act imposes certain obligations on the Office to preserve that information as part of the public record. The Act requires the Register to ensure that “records of . . . registrations . . . are maintained, and that indexes of such records are prepared,” and that “[s]uch records and indexes . . . be open to public inspection,” thus creating a public record. 17 U.S.C. 705(a), 705(b). The public record of copyright registrations serves several important functions. Chief among these is that the record provides essential facts relevant to the copyright claim and information that a potential user of a copyrighted work can use to locate the work's owner. The registration record can also be a valuable aid for determining the term of copyright protection, by providing information such as the author's date of death, the publication date for the work, or the year of creation of the work.

A separate provision of the Act requires the Register of Copyrights to “compile and publish . . . catalogs of all copyright registrations.” 17 U.S.C. 707(a). For most of the Office's history, this catalog was maintained in paper form as the Catalog of Copyright Entries (“CCE”). Starting in 1994, however, the Office began providing the public with access to a computerized database of post-1977 copyright registration and recordation catalog entries via the internet. Then, in 1996, the Office decided to end publication of the printed CCE and publish copyright registration information solely via an online public catalog. See 61 FR 52465 (Oct. 7, 1996).

Initially, the PII revealed in the online public catalog was limited to names and, when volunteered, the author's year of birth. By 2007, however, with the advent of the Copyright Office's online registration system (“eCO”), a broader range of PII was pushed from the Office's registration records into the online public catalog, including the postal address of the claimant, and the name, postal address, email address and phone number of the person authorized to correspond about, and/or provide rights and permission to use, the registered work. See 72 FR 36883, 36887 (July 6, 2007). The current online public catalog, however, does not contain all of the information that is contained in the Office's full registration records. For instance, the online public catalog currently does not include the text of correspondence between the Office and the applicant. This information is maintained solely in the Office's offline records, although members of the public can obtain copies of it by making a request to the Office.

In addition, while the information in the online public catalog initially could only be searched and retrieved via the Office's Web site, in 2007 third parties began harvesting registration information, including PII, from the catalog, and posting that information on alternative Web sites, which were then indexed by search engines. As a result, authors and claimants began noticing their personal information appearing in internet search results, and began asking the Office to remove that information from the Office's online public catalog.

In 2008, the Office published a list of frequently asked questions (“FAQs”) on privacy to address some of these concerns.2 In the FAQs, the Office stressed that, by statute, it was required to collect certain information as part of the registration application and maintain it as part of its public records. The FAQs advised the public that if they did not wish sensitive personal information to appear in the online public catalog, they should refrain from providing it during the registration process, if possible. Applicants were advised to instead consider providing non-personal information, such as information about a third-party agent, a post office box, or a non-personal email address. But the Office warned that, if the applicant provided personal information, it would be included in the online public catalog. Both the Web page to log in to the online registration system and the Web page to download paper application forms include links to the privacy FAQs. See eCO Registration System, Privacy: Copyright Public Records, http://www.copyright.gov/eco/; Forms, http://www.copyright.gov/forms/; see also U.S. Copyright Office, Compendium of U.S. Copyright Office Practices 205 (3d ed. 2014).

The Office's practices have differed with respect to extraneous PII—such as driver's license numbers, social security numbers, credit card information, and banking information—that applicants sometimes include on registration applications, even though the application does not require or request such information. Given the particular sensitivity of that information, and the fact that it is not requested as part of the registration application, the Office has developed an informal practice of removing extraneous PII from its registration records, including the online public catalog and the offline records, for no fee. During the registration process, the Office may remove extraneous PII, particularly if it is sensitive information, on its own volition. After the registration is complete, the Office will remove extraneous PII upon request. See Compendium (Third) 1804.2 (“If the registration specialist discovers a social security number, driver's license number, credit card number, or bank account number in the application, he or she will remove that information from the record without communicating with the applicant [and] [i]f this information is not discovered during the examination process . . . [t]he Office will remove [it] upon written request.”).

Since issuing its FAQs on privacy in 2008, the Office has continued to receive occasional requests to remove PII that the Office regularly collects as part of the registration application, such as home addresses, from the online registration records. In light of these requests, the Office is now proposing to amend its rules in two main respects.

First, as explained in detail below, the Office proposes to add a new rule allowing authors and claimants to request the removal of requested PII from the online public catalog only, and replace it with non-personal information. The original information would be maintained in the Office's offline records and would be available for public inspection by visitors to the Copyright Office and upon request, consistent with the Office's statutory responsibilities to “maintain” such records and make them available to the public. 17 U.S.C. 705(a), 705(b). In proposing the rule, the Office seeks to strike an appropriate balance between the public's interest in a robust online record and concerns of privacy and safety in individual cases.

Second, the proposed rule would codify the Office's existing practice of removing extraneous PII—such as driver's license numbers, social security numbers, banking information, and credit card information—from both the offline records and the online public catalog. The Office is also proposing a conforming amendment to its Privacy Act regulations.

Who may request removal. The proposed rule would permit an author, claimant of record, or the authorized representative of the author or claimant of record, to submit a request to remove certain PII related to a copyright registration from the Copyright Office's online registration records.

What may be removed. In general, the proposed rule would allow for the removal of requested PII contained in the online public catalog, including home addresses, personal telephone and fax numbers, and personal email addresses. But there are two important limitations. First, the proposed rule would not allow a claimant to eliminate address information from the online public catalog, but instead would only allow for the replacement of a home address with a verifiable substitute address, such as a current post office box or third-party address (e.g., “in care of” an agent or corporation). The reason for this restriction is that allowing the wholesale removal of a claimant address would impede the public's ability to contact a copyright owner to obtain permission to use the work.

Second, the proposed rule would not permit removal of an author or claimant's name from the online public catalog, or the replacement of an author or claimant's name with a pseudonym or an “anonymous” designation. Changing or removing a name is not necessary to prevent privacy invasions, as long as associated PII is removed. More fundamentally, allowing authors or claimants to alter their names in the online public catalog may lead to confusion regarding the term of copyright protection for the work. Under the Copyright Act, works by anonymous and pseudonymous authors have different terms of copyright protection than works by authors whose real name is revealed in the Office's records. The term for works by anonymous and pseudonymous authors is 95 years following the year of first publication, or 120 years following the year of creation, whichever term expires first. The term for works by authors whose real names are revealed in the Office's records is the life of the author plus 70 years. 17 U.S.C. 302(a), 302(c). In addition, the Act specifically contemplates that if the real name of the author of an anonymous or pseudonymous work is identified in the Office's records during the term of protection, then that work will receive the term of life plus 70 years. Id. at 302(c). But the statute does not provide for the reverse: It does not contemplate a work whose author is already known receiving the copyright term applicable to works by anonymous or pseudonymous authors if the author's real name is removed from the Office's records. Thus, if the proposed rule were to permit the removal of an author's real name from the online public catalog, or the substitution of a real name with a pseudonym, it would run contrary to the statutory scheme established by Congress, and would likely create confusion regarding the correct term of copyright.

Moreover, in at least some situations, removal of a claimant's name could also lead to confusion about the correct copyright term. For example, an anonymous author might inadvertently reveal his or her real name in the claimant section of the registration form, in which case it may be that the term for a known author applies, rather than the term for an anonymous or pseudonymous author.3 Although that concern may arise only in rare cases, any rule would have to account for this possibility and would, as a result, be difficult to administer. Accordingly, in light of the limited privacy concerns regarding the publication of author and claimant names unconnected to other forms of PII, and consistent with existing practices, the Office has provisionally concluded that the rule should not allow removal of author or claimant names from the online public catalog. See Compendium (Third) 615.3 (“The Office will not remove the author's name from the registration record once a certificate of registration has been issued.”).

Standard for removal of requested PII. Under the proposed rule, the standard the Office would employ in determining whether to grant a request to remove requested PII from the online public catalog will depend on whether the requester is asking simply to replace the PII in the online public catalog with verifiable, non-personally-identifiable substitute information, or whether the requester instead is asking to remove the PII without providing such substitute information.

If the requester provides the Office with verifiable, non-personally-identifiable substitute information, the Office would generally grant the request, unless it determines that the need to maintain the original information in the public record substantially outweighs the safety, privacy, or other stated concern.

By contrast, if the requester is not providing verifiable, non-personally-identifiable substitute information, the request will only be granted if the requester demonstrates that the safety, privacy, or other stated concern substantially outweighs the need for the information to remain in the public record. This higher standard is warranted because removing information entirely from the online public catalog would result in a diminished record available for search via the internet.

To satisfy the higher standard, a requester must provide more than a bare declaration that the author or claimant is concerned about his or her privacy or safety. For instance, a general statement such as, “I want to protect my privacy,” will not satisfy this requirement. Rather, a detailed explanation of why the request should be granted is required, such as a specific threat to safety or privacy. The more detail that is supplied by the requester, the more likely the Office is to accept the assertion on its face.

How to submit a request for removal of requested PII. PII removal requests must be in the form of a signed affidavit mailed to the U.S. Copyright Office's Associate Register of Copyrights and Director of Public Information and Education, and contain the following information:

• The copyright registration number(s). (A single affidavit may request removal of the same PII in multiple registration records, but as explained below, the $130 fee must be paid for each registration record.)

• The name of the author and/or claimant of record on whose behalf the request is made.

• Identification of the specific PII that is to be removed.

• If applicable, verifiable, non-personally-identifiable substitute information that should replace the PII to be removed.

• A statement providing the reasons supporting the request. If the requester is not providing verifiable, non-personally-identifiable substitute information to replace the PII to be removed, this statement must explain in detail the specific threat to personal safety or personal security, or other circumstances, supporting the request.

• The statement, “I declare under penalty of perjury that the foregoing is true and correct.”

• If the submission is by an authorized representative of the author or claimant of record, an additional statement, “I am authorized to make this request on behalf of [name of author or claimant of record].”

• The signature of the author, claimant of record, or the authorized representative of the author or claimant of record.

• The date on which the request was signed.

• A physical mailing address to which the Office's response may be sent (if no email address is provided).

• A telephone number.

• An email address (if available).

Requests to remove requested PII made by joint authors and claimants. Requests by a joint author or claimant will generally be treated as described above for a single author or claimant. In other words, a joint author or claimant may request removal of their own PII (though, obviously, not the removal of PII of their co-author or co-claimant). That having been said, the Office has some concern regarding joint authors or claimants that may initially have matching PII, such as a married couple or business partners that share office space. If such relationships were to dissolve, this rule could theoretically permit a joint author or claimant to remove critical contact information for the other author or claimant from the record. Based on this concern, the Office intends to review these requests on a case-by-case basis, but invites comments on this issue. Comments with specific examples or hypotheticals are preferred to general statements.

Review process. All written requests for the removal of requested PII from the online public catalog will be reviewed by the Associate Register of Copyrights and Director of the Office Public Information and Education, or his or her designee(s). All decisions granting or denying requests for the removal of requested PII from the online public catalog will be sent in writing to the author, claimant of record, or the authorized representative of the author or claimant of record at the address or email indicated in the request.

If the request is granted, the Office will act as expeditiously as possible to effectuate it. However, when a request to remove requested PII is denied, authorized persons may submit one request for reconsideration in writing and by mail, to the Office of the General Counsel within thirty (30) days from the date of the denial letter, along with the required fee.

Effect on the public record. When requests for the removal of requested PII are granted, the alteration will only be made in the online public catalog. A copy of the original registration record containing the PII will be kept on file in the Office away from public online view. A new certificate of registration reflecting the change will be issued. A note will be added to the basic registration record and made viewable in the online public catalog indicating the modification to the catalog. The note will contain a statement, such as “*Online record modified in response to PII request effective [date modified].”

As noted, the Office will not alter the original registration record, but will instead maintain it in its offline records. Members of the public would be able to access the original, unaltered records by visiting the Office in Washington, DC, and inspecting the offline records there. Members of the public would also, for a fee, be able to request reproductions of original registration records through the Office's Records, Research and Certification Section.

Although the Office contemplated allowing the removal of requested PII from its offline registration records as well its online public catalog, it has preliminarily concluded that the Copyright Act limits its authority to do so. Section 409 of the Copyright Act requires the Office to collect certain information on registration applications, and section 705 requires the Office to “maintain” records of those registrations, and make them available for public inspection. To allow parties to alter the original records and render the original information wholly unavailable for public inspection would appear to be contrary to this statutory mandate. The Act does not, however, mandate that copyright registrations records be published in full on the internet. Rather, the Office's online public catalog is principally a fulfillment of the statutory mandate in 17 U.S.C. 707 that the Office compile and publish catalogs of all copyright registrations. Section 707 gives the Office the discretion to determine “on the basis of practicability and usefulness” the form (and frequency) of the information that is published in these catalogs. The legislative history on section 707(a) contemplates a move from paper-based to electronic distribution of the catalog information:

Though the proposed rule's approach would still allow access to PII through offline means, we believe that preventing the online dissemination of that information will substantially alleviate privacy concerns. Access to the Office's offline records is limited, as described above. In contrast, information in the online public catalog is accessible for free at any time by anyone with an internet connection and can also be harvested through automatic processes.4

Fees. Section 708(a) of title 17 authorizes the Register to fix fees for services, other than those enumerated in paragraphs (a)(1) through (9) of § 708(a), based on cost and without prior submission to Congress.5 See 17 U.S.C. 708(a). Fees for Office services that the Register has the discretion to establish based on cost and without Congressional review include fees for copying Office records, fees for mail and delivery services, and fees for special handling. See 79 FR 15910, 15916-17 (Mar. 24, 2014). With the rule proposed herein, the Office seeks to adopt new fees to recover costs associated with two new services: First, the process of considering initial requests for removal of PII from the online public catalog, and second, the process of reconsideration of denied requests.

Based on a cost analysis, the Office believes that the fee for the initial request should each be established at $130 per registration record, and the fee for reconsideration of denied requests should be established at a flat $60 regardless of the number of registration records encompassed by the request for reconsideration.

The Office arrived at the $130 fee for initial requests by considering the time and labor required to review and process these requests, including the salaries of junior and senior staff who will take part in the review, draft the decisions, and perform the data entry; costs associated with docketing and responding to requests via U.S. mail; system costs related to entering changes into the online public catalog as well as updating the offline registration records; and costs associated with printing a new registration certificate. For example, for initial requests, senior Public Information and Education staff must review the initial requests, draft final decisions, then the Associate Register of Copyrights and Director of the Office of Public Information and Education must review and sign final decisions. When an initial request is granted, Registration Program staff must key the changes into the Office's online public catalog, and perform checks to ensure that the changes are accurately reflected in the online public catalog. For both initial requests and requests for reconsideration, the costs associated with processing the check or money order payments by the Office's accounting staff have been factored into the fee.

For reconsiderations, the costs associated with having an attorney advisor review the reconsideration letters and draft final decisions for review by and signature of the General Counsel and Associate Register of Copyrights amount to a flat fee of $60 per request, regardless of the number of registration records referenced in the request. If the Office grants the request for reconsideration, the costs associated with keying changes into the system and printing a new certificate would have already been covered by the fee that accompanied the initial request, and so they are not included in this fee.

Both fees are non-refundable.

As explained, the proposed rule would also codify the Office's existing practice of removing extraneous PII such as driver's license numbers, social security numbers, banking information and credit card information from the Office's online and offline records upon request. See Compendium (Third) 1804.2. Specifically, the proposed rule would allow, through a request made in writing (via hard copy or email) to the Associate Register of Copyrights and Director of the Office of Public Information and Education, the removal of extraneous PII such as driver's license numbers, social security numbers, banking information, and credit card information inadvertently included on a copyright registration application, at no cost. Such a request must contain the name of the author and/or claimant of record, the registration number associated with the record, and a description of the extraneous PII that is to be removed. Once the Office receives the request it will act as expeditiously as possible to remove the extraneous PII from both its online and offline public records. The Office will not include any notation of this action in its records. The Office will also continue its informal practice of affirmatively removing or redacting extraneous PII from registration forms if it is found during and following the examination process, although this practice is not codified in the proposed rule.

For the reasons set forth in the preamble, the U.S. Copyright Office proposes to amend parts 201 and 204 of 37 CFR chapter II as follows:

The Commission initiates this rulemaking to request comments on proposed changes to title 39 of the Code of Federal Regulations (CFR) as they relate to attributable costs. The primary purpose of the rulemaking is to make conforming changes to rules that specifically define or describe attributable costs, pursuant to Commission Order No. 3506.1

In Docket No. RM2016-2, the Commission issued Order No. 3506 after consideration of a United Parcel Service, Inc. (UPS) Petition which sought to make changes to the methodologies employed by the Postal Service to account for the costs of its products in its periodic reports.2 In Proposal One, UPS recommended that the Postal Service calculate and attribute inframarginal costs to individual products in addition to the currently attributed volume-variable and product-specific fixed costs.3

Section 3633(a)(2) (competitive rate regulation) requires the Commission to ensure that “each competitive product covers its costs attributable.” 39 U.S.C. 3633(a)(2); see also 39 CFR 3015.7(b).4 Section 3631(b) defines attributable cost as “the direct and indirect postal costs attributable to [ ] product[s] through reliably identified causal relationships.” 39 U.S.C. 3631(b).

Additionally, under section 3622 (market dominant rate and class regulation), a product's ability to cover its attributable costs is a factor to be considered when regulating rates for market dominant products and includes the same terminology, that postal costs should be attributed through reliably identified causal relationships, found in sections 3631(b). 39 U.S.C. 3622(c)(2).

Therefore, title 39 introduces the concept of attributable costs and describes the role they play in the regulation of both market dominant and competitive products. For competitive products, coverage of attributable costs is a requirement in regulating competitive product rates; for market dominant products, it is only one of many factors the Commission considers when regulating market dominant rates. See 39 U.S.C. 3633(a)(2); 39 CFR 3015.7(b); 39 U.S.C. 3622(c).

Historically, volume-variable costs and product-specific costs together totaled attributable costs, as the Commission found both volume-variable and product-specific costs are reliably identifiable and causally related to products pursuant to statute.5 All other costs are currently classified as institutional and are not attributed to specific products. Order No. 3506 at 10. Institutional costs include common fixed costs and inframarginal costs. Id. Inframarginal costs are variable costs that do not vary directly with volume. Id. (emphasis added).

While the Commission found that inframarginal costs are causally related to products, it determined inframarginal costs cannot be reliably identified, which is a necessary component of cost attribution. Order No. 3506 at 56. However, the Commission found that a portion of inframarginal costs (those inframarginal costs calculated as part of a product's incremental cost) are reliably identifiable and can be linked to products. Order No. 3506 at 61. Therefore, pursuant to Order No. 3506, attributable costs must also include those inframarginal costs calculated as part of a competitive product's incremental costs (in addition to a product's volume-variable costs and product-specific fixed costs). It is this change in the description of attributable costs that requires clarification of some attributable cost references in title 39 of the CFR.

The rules requiring conforming or clarifying changes in this notice of proposed rulemaking are §§ 3015.7, 3060.10, and 3060.21.

Proposed § 3015.7(a) provides that when incremental cost data are unavailable to test for cross-subsidies by market dominant products, the Commission will use volume-variable costs and product-specific costs, as well as causally related, group-specific costs, to test for cross-subsidies. This proposed section removes the “attributable costs” phrase currently described as the alternative test when incremental costs are not available. The proposed rule is intended to provide a refined explanation of the alternative test for cross-subsidization by market dominant products after the Commission found in Order No. 3506 that some incremental costs (those inframarginal costs calculated as part of a competitive product's incremental costs) should be included as part of attributable costs. Order No. 3506 at 61-62, 123-124.

Proposed § 3015.7(b) includes the updated description of attributable costs to include those inframarginal costs calculated as part of a competitive product's incremental costs, as well as volume-variable costs and product-specific costs. Order No. 3506 at 62. The proposed rule is intended to provide a clear description of which costs should be attributed to competitive products pursuant to the Commission's findings in Order No. 3506. In addition, proposed rule § 3015.7(b) signifies these three costs not only comply with the description of attributable costs found in 39 U.S.C. 3631(b), but are the costs relevant to the Commission's evaluation of the Postal Service's compliance with part 3015.

Proposed §§ 3060.10(a) and 3060.21 both make conforming changes to the description of attributable costs, in each section, to include those inframarginal costs calculated as part of a competitive product's incremental costs, along with volume-variable costs and product-specific costs pursuant to Order No. 3506.

While no other rules in title 39 require revisions as a result of the Commission's Order No. 3506, the Commission's findings concerning the use a product's incremental costs (the sum of volume-variable costs, product-specific costs, and those inframarginal costs calculated as part of a product's incremental costs) to calculate attributable costs applies to any reference of attributable costs in title 39 unless otherwise indicated by the rules. See generally Order No. 3506.

Interested persons are invited to provide written comments concerning the proposed rule. Comments are due no later than 30 days after the date of publication of this notice in the Federal Register. All comments and suggestions received will be available for review on the Commission's Web site, http://www.prc.gov.

Pursuant to 39 U.S.C. 505, Kenneth E. Richardson is appointed to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in the above-captioned docket.

It is ordered:

1. Docket No. RM2016-13 is established for the purpose of receiving comments on the proposed change to parts 3015 and 3060, as discussed in this order.

2. Interested persons may submit comments no later than 30 days from the date of the publication of this notice in the Federal Register.

3. Pursuant to 39 U.S.C. 505, Kenneth E. Richardson is appointed to serve as the Public Representative in this proceeding.

4. The Secretary shall arrange for publication of this order in the Federal Register.

For the reasons discussed in the preamble, the Commission proposes to amend chapter III of title 39 of the Code of Federal Regulations as follows:

Throughout this document, references to “EPA,” “we,” “us,” or “our,” are intended to mean the Environmental Protection Agency. The supplementary information is arranged as follows:

On October 12, 2011, the New York State Department of Environmental Conservation (NYSDEC) submitted to EPA Region 2 a new set of revisions to the New York State Implementation Plan (SIP). This submittal consists of revisions to Title 6 of the New York Code of Rules and Regulations (6 NYCRR) Part 231, New Source Review for New and Modified Facilities; 6 NYCRR Part 200, General Provisions; and 6 NYCRR Part 201, Permits and Certificates. New York undertook this rulemaking to comply with EPA's May 16, 2008 NSR final rule for the regulation of particulate matter with an aerodynamic diameter less than or equal to 2.5 micrometers (PM2.5). Also, the revisions implement EPA's October 20, 2010 final rule that establishes the PM2.5 increments, significant impact levels, and significant monitoring concentrations. This proposed rulemaking implements PM2.5 provisions that were not previously included in the November 17, 2010 EPA SIP approval of Part 231. This SIP revision also incorporates provisions that conform to EPA's June 3, 2010 final rule for Greenhouse Gases (GHGs) under its PSD and Title V programs, establishing major source applicability threshold levels for GHG emissions and other conforming changes such as the establishment of global warming potential values for calculating CO2 equivalents under New York's PSD and Title V programs.

The EPA is also proposing to approve certain elements of New York SIP revisions as meeting CAA section 110(a) requirements for the 2008 Pb, 2008 ozone, and 2010 SO2 NAAQS. NYSDEC submitted a SIP for the 2008 Pb NAAQS on October 13, 2011, as supplemented on February 24, 2012; for the 2008 ozone NAAQS on April 4, 2013; and for the 2010 SO2 NAAQS on October 3, 2013.

On November 17, 2010, EPA granted a partial approval to revisions of the New York SIP for 6 NYCRR Parts 200, 201 and Part 231 submitted by the NYSDEC on March 3, 2009. 75 FR 70140. This partial approval was issued with the caveat that EPA was taking no action at the time on (1) the PSD permitting threshold provisions to the extent that those provisions may require permits for sources of GHG emissions that equal or exceed the 100/250 tons per year (tpy) GHG levels but are less than the thresholds identified in EPA's final Tailoring Rule at 75 FR 31514, 31606 (June 3, 2010); and (2) the PSD significance level provisions of New York's rule to the extent that those provisions may treat as significant GHG emissions increases that are less than the thresholds identified in the final Tailoring Rule. Id. We granted partial approval, in part, because in its August 11, 2010 letter to EPA, New York State confirmed to us that they have authority to regulate GHGs without any additional rulemaking or other administrative action. Subsequently, on October 12, 2011 New York submitted a SIP revision request which makes New York's authority to regulate GHG more explicit in the regulation itself. In addition, New York's SIP revision request addresses additional PM2.5 requirements that were not included in the November 17, 2010 EPA SIP approval.

Under CAA sections 110(a)(1) and (2), states are required to submit SIPs that provide for the implementation, maintenance and enforcement of the NAAQS. The EPA refers to these types of SIP submissions as the “infrastructure” SIPs. States must make infrastructure SIP submissions within 3 years after the promulgation of a new or revised NAAQS. On November 12, 2008 (73 FR 66964), EPA promulgated a new rolling 3-month average NAAQS for Pb, which is 0.15 micrograms per cubic meter of air (µg/m3) maximum not to be exceeded. On March 27, 2008 (73 FR 16436), EPA revised the level of the 8-hour ozone NAAQS from 0.08 parts per million (ppm) to 0.075 ppm. On June 22, 2010 (75 FR 35520), EPA promulgated a revised NAAQS for SO2 at a level of 75 ppb, based on a 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations.

This proposed action pertains only to the portions of the infrastructure SIPs submitted for the 2008 Pb, 2008 ozone, and 2010 SO2 NAAQs pertaining to CAA sections 110(a)(2)(C); 110(a)(2)(D)(i)(II) prong 3 (PSD); and 110(a)(2)(J). EPA had previously approved most elements of New York's infrastructure SIP for the 2008 Pb NAAQS as fully meeting the requirements of section 110(a). See, EPA's final rule “Approval and Promulgation of Implementation Plans; New York; Infrastructure SIP for the 2008 Lead NAAQS,” 80 FR 30939 (June 1, 2015). However, EPA had deferred taking final action on the lead SIP with respect to 110(a)(2)(C), 110(a)(2)(D)(i)(II) prong 3, and 110(a)(2)(J) elements until EPA approved, or simultaneously approved, PM2.5 requirements for New York's PSD program. EPA will address the other elements of the infrastructure SIPs for the 2008 ozone, and 2010 SO2 NAAQs in another action.

EPA's general approach to the review of infrastructure SIP submittals can be found in the December 15, 2014 (79 FR 74046) proposal to approve New York's 2008 Pb infrastructure SIP, and will not be repeated here. Both the proposed rule and final rules for the 2008 Pb NAAQS can also be found in the docket of this rulemaking.

A number of developments have arisen since EPA's receipt of the SIP revision package that has affected EPA's review of the 6 NYCRR Part 231 SIP revision. These developments are:

(a) On July 21, 2011, then Assistant Administrator Gina McCarthy issued a memorandum entitled “Revised Policy to Address Reconsideration of Interpollutant Trading Provisions for Fine Particles (PM2.5).” See http://www.epa.gov/sites/production/files/2015-07/documents/pm25trade.pdf. The memorandum stated that under the EPA's revised policy, the interpollutant ratios contained in the preamble to the 2008 final rule will no longer carry an EPA presumptive approval status. Accordingly, if a state wishes to implement interpollutant trading, the state will be expected to develop its own separate PM2.5 precursor offset ratios that are demonstrated to be suitable for addressing the particular precursor's relationship with ambient PM2.5 concentrations for 24-hour and annual averaging periods that are causing violations in that nonattainment area. Therefore, since New York has not conducted and included such a demonstration for the PM2.5 precursor offset ratios in the Part 231 SIP submittal, these offset ratios cannot presumptively be approved into the SIP.

(b) On January 22, 2013, the United States Court of Appeals for the District of Columbia granted an EPA request to vacate and remand to the EPA portions of two PSD regulations, promulgated in 2010. These two regulatory provisions are the Significant Impact Levels (SILs) for PM2.5 promulgated under 40 CFR 52.21(k)(2) and 40 CFR 51.166(k)(2) and the PM2.5 Significant Monitoring Concentration (SMC) promulgated under 40 CFR 52.21(i)(5)(i)(c) and 40 CFR 51.166(i)(5)(i)(c). On December 9, 2013, the EPA issued a final rule vacating these two elements and subsequently issued interim guidance on May 20, 2014 entitled “Guidance for PM2.5 Permit Modeling.” See http://www3.epa.gov/ttn/scram/guidance/guide/Guidance_for_PM25_Permit_Modeling.pdf. The EPA is currently drafting regulatory changes to address these two aspects of the PSD rule.

(c) On June 23, 2014, the Supreme Court of the United States issued a decision addressing the application of stationary source permitting requirements to greenhouse gases. Utility Air Regulatory Group (UARG) v. Environmental Protection Agency, 134 S.Ct. 2427 (2014) In this decision, the Supreme Court said that the EPA may not treat greenhouse gases as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD or title V permit. The Supreme Court also said that the EPA could continue to require that PSD permits otherwise required, based on emissions of conventional pollutants, contain limitations on GHG emissions based on the application of Best Available Control Technology (BACT). See the EPA guidance dated December 19, 2014 on this topic at http://www.epa.gov/sites/production/files/2015-07/documents/201412step2.pdf.

In light of the above developments, the NYSDEC on July 28, 2016 requested the EPA to withdraw specific regulatory language that deals with the above provisions from the SIP submittal. Removal of the above provisions from the SIP submittal request is appropriate since EPA has or is in the process of developing additional guidance/regulations that will address the above issues with a timetable as to when the SIP revisions are due from the States to EPA. The specific provisions of 6 NYCRR Parts 201 and 231 that New York has asked the EPA to be withdrawn are:

New York's submittals demonstrate how the State, where applicable, has a plan in place that meets the requirements of CAA Section 110 for certain elements for the 2008 Pb, 2008 ozone and 2010 SO2 NAAQS. The plans reference the current New York SIP, the New York Codes of Rules and Regulations (NYCRR), the New York Environmental Conservation Law (ECL) and the New York Public Officer's Law (POL). The NYCRR, ECL and POL referenced in the submittal are publicly available. New York's SIP can be found at 40 CFR 52.1670 and is posted on the Internet at: http://www.epa.gov/region02/air/sip/ny_reg.htm.

As discussed in the following sections, EPA has reviewed and evaluated elements and sub-elements of New York's Infrastructure SIPs for 2008 Pb, 2008 Ozone, and 2010 SO2 for CAA Section 110(a)(2)(C); 110 (a)(2)(D)(i)(II) [PSD (Prong 3)]; and 110(a)(2)(J).

Section 110(a)(2)(C) requires states to have a plan that includes a program providing for enforcement of all SIP measures and the regulation of the modification and construction of any stationary source, including a program to meet PSD of Air Quality and minor source new source review.

New York's Infrastructure SIP submittals for 2008 Pb, 2008 ozone and 2010 SO2 NAAQS reference New York's Environmental Conservation Law (ECL) § 19-0305, which provides New York with the authority for the enforcement of all control measures that have been adopted into the SIP. New York also references the State's PSD and Nonattainment New Source Review (NNSR) permitting program contained in 6 NYCRR Part 231, “New Source Review for New and Modified Facilities,” and the State's permitting program contained in 6 NYCRR 201, “Permits and Certificates.” EPA approved New York's PSD and NNSR program into the SIP on November 17, 2010 (75 FR 70140). New York's minor new source review program is also regulated under Part 201.

EPA has reviewed and evaluated New York's Infrastructure SIP for the 2008 Pb, 2008 ozone and 2010 SO2 NAAQS with respect to the requirements of element C.

EPA concludes that the State has adequate authority and regulations to ensure that SIP-approved control measures are enforced for the 2008 Pb, 2008 ozone and 2010 SO2 NAAQS. Under § 19-0311 of the ECL, New York has the authority to establish a permitting program. New York's SIP-approved program under Part 231 includes both PSD permitting requirements, which regulate major sources in attainment areas, and Nonattainment New Source Review requirements, which regulate major sources located in nonattainment areas. New York's Part 231 includes permitting requirements for Pb, SO2 and the precursors of ozone (i.e., nitrogen oxides and volatile organic compounds). New York's permitting regulations are set forth in 6 NYCRR Part 201, “Permits and Certificates.” Major sources of air pollution are covered by State Facility permits (Subpart 201-5) and Title V permits (Subpart 201- 6). In addition, New York has implemented a permitting program for minor sources of air pollution; these sources are covered by minor facility registrations (6 NYCRR Subpart 201-4).

New York's program ensures that all applicable PSD requirements are included in PSD permits and are incorporated into title V operating permits, and that all federally-enforceable requirements are applied and enforced. The State's PSD permitting requirements in Part 231 regulate Pb, SO2, and the precursors of ozone. The PSD portion of Part 231 regulates the construction of proposed new or modified facilities that are required to demonstrate in their permit application that allowable emission increases from the facilities, in conjunction with all other applicable emission increases or reductions (including secondary emissions), would not, among other things, cause or significantly contribute to air pollution in violation of any NAAQS or increment in any air quality control region. Since Pb, SO2, and ozone are NAAQS, the PSD provisions of Part 231 are applicable.

Section 110(a)(2)(C) is applicable to all NSR pollutants subject to regulation under the CAA. See, e.g., CAA section 165(a)(4). As mentioned in section II, above, and as further described in EPA's final rule approving elements of the New York Lead Infrastructure SIP,1 EPA had deferred taking final action approving 110(a)(2)(C) (as well as 110(a)(2)(D)(i)(II) prong 3, and 110(a)(2)(J)) until EPA approved, or simultaneously approved, PM2.5 requirements for New York's PSD program. Because the scope of 110(a)(2)(C) is comprehensive (covering all pollutants subject to regulation under the CAA, including GHG), a fully approved comprehensive PSD program addressing all regulated NSR pollutants is needed in order to approve the infrastructure SIP for any one pollutant. As described in section III of this rulemaking, the NYSDEC has requested to withdraw specific language from its SIP submittal that had affected EPA's review of the 6 NYCRR Part 231 SIP revision. Upon final approval of the revisions to 6 NYCRR Part 231 into the SIP, New York will have addressed all regulated pollutants.

EPA proposes to find that the State has adequate authority and regulations to ensure the enforcement of emission limits and control measures for the 2008 Pb, 2010 SO2 and 2008 ozone NAAQS. EPA also proposes to find that New York has met the requirements of 110(a)(2)(C) regarding regulation of minor sources and minor modifications for the 2008 Pb, 2008 ozone and 2010 SO2 NAAQS.

Section 110(a)(2)(D) of the Clean Air Act is divided into two subsections: 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). The first of these, 110(a)(2)(D)(i), in turn, contains four “prongs” the first two of which appear in 110(a)(2)(D)(i)(I) and the second two of which appear in 110(a)(2)(D)(i)(II). The two prongs in 110(a)(2)(D)(i)(I) require New York's SIP to contain adequate provisions prohibiting any source or other type of emissions activity within the State from emitting any air pollutants in amounts which will contribute significantly to nonattainment in any other state with respect to any primary or secondary NAAQS (prong 1), or interfere with maintenance by any other state with respect to any primary or secondary NAAQS (prong 2). The two prongs in 110(a)(2)(D)(i)(II) prohibit any source or other type of emissions activity within the State from emitting any air pollutants in amounts which will interfere with measures required to be included in the applicable implementation plan for any other state under part C to prevent significant deterioration of air quality (prong 3) or to protect visibility (prong 4). Subsection 110(a)(2)(D)(ii) addresses interstate and international pollution abatement, and requires SIPs to include provisions insuring compliance with sections 115 and 126 of the CAA, relating to interstate and international pollution abatement.

In this action, EPA is proposing to approve 110(a)(2)(D)(i)(II)(prong 3) for the 2008 Pb, 2008 ozone, and 2010 SO2 NAAQS. EPA has previously taken action on 110(a)(2)(D)(i)(I)(prongs 1 and 2) and 110(a)(2)(D)(i)(II)(prong 4) for 2008 Pb. EPA has proposed action on 110(a)(2)(D)(i)(I)(prongs 1 and 2) and 110(a)(2)(D)(i)(II)(prong 4) for the 2008 ozone NAAQS, and will finalize in a separate rulemaking. EPA will also address 110(a)(2)(D)(i)(I)(prongs 1 and 2) and 110(a)(2)(D)(i)(II)(prong 4) for the 2010 SO2 NAAQS in a separate rulemaking.

To satisfy section 110(a)(2)(D)(i)(II), prong 3, New York relies on its PSD program to prevent significant deterioration of air quality within other states. New York has affirmed that the program remains in effect and continues to apply for 2008 Pb, 2008 ozone, and 2010 SO2.

As discussed in the preceding section regarding 110(a)(2)(C), a state's PSD program must address all pollutants subject to regulation under the CAA. Upon final approval into the SIP of this proposed approval of the revisions to 6 NYCRR Part 231, New York will have addressed all regulated pollutants.

Section 110(a)(2)(J) requires states to have a plan that meets the applicable requirements of CAA section 121 (relating to consultation), section 127 (relating to public notification), and part C (relating to significant deterioration and visibility protection).

Section 110(a)(2)(J) requires states to provide a process for consultation with local governments and Federal Land Managers carrying out NAAQS implementation requirements pursuant to section 121 relating to consultation. In December 2006, New York established a SIP Coordinating Council consisting of senior policy representatives from 19 state agencies and authorities, as well as a SIP Task Force consisting of officials from 37 local governments and designated organizations of elected officials. New York has also participated in the consultation process for Regional Haze (40 CFR 51.308). EPA proposes to find that the 110(a) submittals from New York meet the requirements of 110(a)(2)(J) for consultation with government officials for 2008 Pb, 2008 ozone, and 2010 SO2.

Section 110(a)(2)(J) further requires states to notify the public if the NAAQS are exceeded in an area and to enhance public awareness of measures that can be taken to prevent exceedances. New York maintains an Air Quality Web site 2 for reporting daily air quality to the public, including current air quality status, air quality forecasts, monitoring information, reports and pollutant health effects related to air quality readings. New York posts warnings on the above-referenced Web site and issues press releases to local media outlets if dangerous conditions are expected to occur. In the case of a predicted or forecasted air quality exceedance, the public is urged to follow energy-saving and pollution-reducing steps such as limiting the use of appliances and carpooling. EPA proposes to find that the 110(a) submittals from New York meet the requirements of 110(a)(2)(J) for public notification for 2008 Pb, 2008 ozone, and 2010 SO2.

Section 110(a)(2)(J) also requires states to meet applicable requirements of Part C related to PSD and visibility protection. The approvability of a state's PSD program in its entirety is essential to approvability of the PSD portion of this element. As discussed previously concerning approvability of 110(a)(2)(C) and 110(a)(2)(D)(i)(II) prong 3, a state's PSD program must address all NSR pollutants subject to regulation under the CAA. Upon final approval into the SIP of this proposed approval of the revisions to 6 NYCRR Part 231, New York will have addressed all regulated pollutants for PSD. With respect to the visibility component of 110(a)(2)(J), EPA believes that the visibility protection requirements are not “applicable requirements” within the meaning of section 110(a)(2)(J) and that the SIP is not required to be revised with respect to visibility protection merely due to promulgation of, or revision to, these NAAQS. Regardless, New York submitted and EPA approved New York's Regional Haze SIP. 77 FR 51915 (Aug. 28, 2012). EPA proposes to find that the 110(a) submittals from New York meet the requirements of 110(a)(2)(J), for PSD, for 2008 Pb, 2008 ozone, and 2010 SO2 NAAQS.

As requested by New York, EPA is proposing to withdraw the above specified regulatory sections of 6 NYCRR Parts 201 and 231 from EPA's review of the SIP submittal. EPA is proposing to approve into the SIP the remaining revisions to 6 NYCRR Part 200, 6 NYCRR Part 201 and 6 NYCRR Part 231 which became effective under NYS law on October 15, 2011, and were submitted by the State of New York to EPA on October 12, 2011. Specifically, EPA is proposing to approve the remaining revisions of subparts 200.1 and 200.9, as effective on October 15, 2011, and subpart 201-2, as effective October 15, 2011. EPA is also proposing to approve the remaining revisions to 6 NYCRR Part 231, as effective on October 15, 2011.

EPA is also proposing to approve New York's infrastructure SIP submittals for 2008 Pb, 2008 ozone, and 2010 SO2 for 110(a)(2) elements and sub-elements, as follows: 110(a)(2)(C), 110(a)(2)(D)(i)(II) prong 3, and 110(a)(2)(J).

In this rule, we are proposing to include in a final rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, we are proposing to incorporate by reference revised versions of 6 NYCRR Part 200, 6 NYCRR Part 201 and 6 NYCRR Part 231, which were discussed in section III above, and became effective under NYS law on October 15, 2011, and were submitted by the State of New York to EPA on October 12, 2011.

The EPA has made, and will continue to make, these documents generally available electronically through http://www.regulations.gov and/or in hard copy at the appropriate EPA office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4);

• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

Information Requested Public Comments

We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:

(1) Chorizanthe parryi var. fernandina's biology, range, and population trends, including:

(a) Biological or ecological requirements of the plant

(b) Genetics and taxonomy;

(c) Historical and current range, including distribution patterns;

(d) Historical and current population levels, and current and projected trends; and

(e) Past and ongoing conservation measures for the plant, its habitat, or both.

(2) Factors that may affect the continued existence of the plant, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.

(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this plant and existing regulations that may be addressing those threats.

(4) Additional information concerning the historical and current status, range, distribution, and population size of Chorizanthe parryi var. fernandina, including the locations of any additional populations of this plant.

Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 1531 et seq.) directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described above in ADDRESSES. If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy 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. We will post all hardcopy submissions on http://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received by the date specified above in DATES. Such requests must be sent to the address shown above in FOR FURTHER INFORMATION CONTACT. We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing.

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), we are seeking the expert opinions of six appropriate and independent specialists regarding this proposed rule. A thorough review of information that we relied on in making this determination—including information on taxonomy, life history, ecology, population distribution and abundance, and potential threats—is presented in the San Fernando Valley Spineflower (Chorizanthe parryi var. fernandina) Species Report (Species Report) available at http://regulations.gov under Docket No. FWS-R8-ES-2016-0078. A summary of this analysis is found in this proposed rule. The purpose of peer review is to ensure that our listing determination is based on scientifically sound data, assumptions, and analyses. The peer reviewers have expertise in C. parryi var. fernandina's biology, habitat, physical or biological factors, or threats, and their review of the Species Report will inform our final determination. We invite comment from the peer reviewers during this public comment period.

We designated Chorizanthe parryi var. fernandina as a candidate species for listing in the October 25, 1999, candidate notice of review (CNOR) (64 FR 57534) based on its discovery along the southern rim of Laskey Mesa and within the footprint of the proposed Ahmanson Ranch project site in southeastern Ventura County, California (Glenn Lukos and Associates (GLA) 2000, p. 1). Prior to its rediscovery in 1999, C. parryi var. fernandina was not seen for a period of 70 years (1929-1999); it was last collected in 1929, near Castaic in Los Angeles County (Reveal and Hardham 1989, p. 149) and was presumed extinct by the botanical community. We gave C. parryi var. fernandina a listing priority number (LPN) of 3, which denotes a subspecies or variety facing an imminent threat of high magnitude and low recovery potential.

On December 6, 1999, and January 27, 2000, we received petitions from the City of Calabasas and from the Santa Monica Mountains Conservancy (SMMC), respectively, to list the plant under the Act as an endangered species. In 2000, Chorizanthe parryi var. fernandina was discovered near Santa Clarita in Los Angeles County, California, on land owned by the Newhall Land and Farming Company (Newhall Land Company) within the footprint of the proposed Newhall Ranch development project. Because C. parryi var. fernandina was already a candidate, we did not conduct either a 90-day or 12-month finding for the species following receipt of the petitions. This document constitutes our proposed rule to list C. parryi var. fernandina as a threatened species, as well as both our 90-day and 12-month findings on the petitions to list C. parryi var. fernandina.

In the May 4, 2004, CNOR (69 FR 24876), we changed the LPN for Chorizanthe parryi var. fernandina from 3 to 6 because we determined that impacts associated with habitat destruction or modification at Laskey Mesa had decreased. The proposed development of Ahmanson Ranch at the Laskey Mesa site did not move forward as previously proposed. This site was purchased by the State of California in 2003, and became part of the Upper Las Virgenes Canyon Open Space Preserve. An LPN of 6 denotes a subspecies or variety facing a nonimminent threat of high magnitude and low recovery potential. C. parryi var. fernandina has been included, with an LPN of 6, in all subsequent CNORs (70 FR 24870, May 11, 2005; 71 FR 53756, September 12, 2006; 72 FR 69034, December 6, 2007; 73 FR 75176, December 10, 2008; 74 FR 57804, November 9, 2009; 75 FR 69222, November 10, 2010; 76 FR 66370, October 26, 2011; 77 FR 69994, November 21, 2012; 78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014; 80 FR 80584, December 24, 2015).

Chorizanthe parryi var. fernandina was one of many taxa included in our May 10, 2011, multiyear work plan filed as part of a proposed settlement agreement with Wild Earth Guardians and others in a consolidated case in the U.S. District Court for the District of Columbia challenging our failure to make listing determinations for candidate species (Endangered Species Act Section 4 Deadline Litigation, No. 10-377 (EGS), MDL Docket No. 2165 (“MDL Litigation”), Document 31-1 (D. DC May 10, 2011) (“MDL Settlement Agreement”)). On September 9, 2011, the court accepted our agreement with plaintiffs on a schedule to publish proposed rules or not-warranted findings for the 251 species designated as candidates in 2010 (including C. parryi var. fernandina) no later than September 30, 2016.

A thorough review of the taxonomy, life history, ecology, population distribution and abundance, and land ownership of Chorizanthe parryi var. fernandina is presented in the Species Report (Service 2016, pp. 7-20), available on the Internet at http://www.regulations.gov under Docket No. FWS-R8-ES-2016-0078; a summary of this information is presented below. We used data specific to C. parryi var. fernandina when available.

Chorizanthe parryi var. fernandina is a low-growing herbaceous annual plant in the Polygonaceae (buckwheat) family and is typical of many winter-spring native annuals that occur in the Mediterranean climate of California. Historical records show that C. parryi var. fernandina was found in washes and sandy areas, in the hills and on mesas, generally around the foothills of the San Gabriel Mountains and near Santa Ana in Orange County (Reveal 1989, p. 402; CDFG 2002, p. 12). The probable vegetation in these areas is a type of alluvial scrub called Riversidean alluvial fan sage scrub (Holland, 1986, p. 11; Sawyer et al. 2009, pp. 389-391). Currently, C. parryi var. fernandina is a plant of open habitats, predominately found within openings of sparsely vegetated scrub communities and grasslands, and in the transition zone between these two communities (Dudek 2010a, p. 21; Sapphos 2001, p. 5-13). C. parryi var. fernandina occurs primarily in areas of poorly developed soils, mostly in loam or silty clay loam with a much lower level of occurrence on sandy loams, and with shallow depth to bedrock and compacted soils. The conditions under which C. parryi var. fernandina persists are most likely due to decreased competition from native and nonnative plants, as it occurs in areas where other plants cannot become established (Sapphos 2001, p. 5-13; GLA 2000, p. 18; Dudek 2010a, p. 23).

Chorizanthe parryi var. fernandina adapted a generalist pollination strategy. The presence of smaller pollinator species (i.e., native ants) and larger, more mobile pollinators (i.e., honeybees (Apis mellifera)) facilitates overall reproductive success (Jones et al. 2009, p. 39). Seeds of C. parryi var. fernandina are small, possess no morphological modifications for wind or animal dispersal, and remain in the involucre even after the plant disarticulates (Sapphos 2001, p. 3-5). Small mammals, along with native ants (e.g., harvester ants (Pogonomyrmex or Messor spp.)), may play a role in seed dispersal (CBI 2000, p. 3). In addition, bioturbation (reworking of soils and sediments by animals or plants) and bare soil patches related to rodent activity have been associated with C. parryi var. fernandina (GLA 2000, p. 18; CBI 2000, p. 7).

The genetic characteristics of Chorizanthe parryi var. fernandina have not been investigated; however, Dr. Deborah Rodgers is currently conducting research of the plant's genetic structure (Dudek 2015, p. 2; Dudek 2016c, p. 9). As of January 2016, all field collection is complete and the study is ongoing (D. Rodgers 2016, pers. comm.).

Historically, Chorizanthe parryi var. fernandina was known from no fewer than 10 locations in Los Angeles and Orange Counties (CDFG 2002, p. 14) (see Figure 1, below). The species was last collected in 1929, was not seen for 70 years (1929-1999), and was presumed extinct by the botanical community because C. parryi var. fernandina was extirpated from all of the areas where it was originally collected (Reveal and Hardham 1989, p. 149). The majority of the historical collections of C. parryi var. fernandina from the greater Los Angeles metropolitan area were made in areas where urban, agricultural, and industrial development have replaced native habitats. Numerous field botanists have tried to rediscover it, but all efforts have been unsuccessful (Reveal and Hardham 1989, p. 149).

In 1999, Chorizanthe parryi var. fernandina was discovered along the southern rim of Laskey Mesa within the footprint of the proposed Ahmanson Ranch development project in southeastern Ventura County, California (GLA 2000, p. 1); this was the only known extant population of this plant. The area occupied by C. parryi var. fernandina in 1999 was estimated to be approximately 6 acres (ac) (2.4 hectares (ha)), comprised of approximately 23,000 plants (GLA 2000, pp. 6-9). The potential threats to the C. parryi var. fernandina population at this site were reduced in 2003, when the Ahmanson Ranch project did not occur as planned and the State of California purchased the property. However, due to historical land uses at this site, the population has been impacted by loss of habitat and invasive, nonnative grasses.

In 2000, Chorizanthe parryi var. fernandina was discovered near Santa Clarita in Los Angeles County, California, on land owned by Newhall Land Company. The 2000 survey data did not include population estimates. This population is within the footprint of the proposed Newhall Ranch development project.

Chorizanthe parryi var. fernandina currently occupies up to a total of 35 to 40 ac (14 to 16 ha) from two populations in Southern California that are 17 miles (mi) (27 kilometers (km)) apart (see Figure 1, above). The Laskey Mesa population is in Ventura County, California, within the Upper Las Virgenes Canyon Open Space Preserve on land owned by the SMMC and the Mountains Recreation Conservation Authority (MRCA) (L.A. Mountains 2015; Newhall Land Company 2015, p. 8; MRCA 2015; SMMC 2015). The Santa Clarita population is in Los Angeles County on land owned by Newhall Land Company (Dudek 2010a, pp. 16-17). The Laskey Mesa population currently occupies approximately 15-20 ac (6.1-8.1 ha) (GLA 2000, p. 6; Sapphos 2001, p. 5-2; Sapphos 2003a, p. 3; Cooper 2015, pp. 8-10); the Santa Clarita population currently occupies approximately 20 ac (8.2 ha) (Dudek 2010a, p. 63).

Comparing annual numbers of Chorizanthe parryi var. fernandina individuals over time is complicated because: (1) Different methodologies and levels of effort have been used to estimate population numbers across both extant populations during survey efforts since 1999; and (2) as is typical of many annual plants, C. parryi var. fernandina shows inter-annual variation in abundance by several orders of magnitude, ranging from hundreds to millions of individuals. Therefore, occupied area or distribution of the populations is an appropriate surrogate measure for plant population size.

Because of the fluctuation in occupied area and population numbers and the different methodologies used to conduct surveys, we are not able to determine if the population is stable or increasing or decreasing at this time. The area occupied by Chorizanthe parryi var. fernandina at Laskey Mesa when it was discovered in 1999 was approximately 6 ac (2.4 ha), was up to 19 ac (7.7 ha) in 2003, and was estimated to be approximately 14 ac (5.7 ha) in 2015. The occupied area that was mapped in 2003 appears to have declined overall, though there were areas of expansion (GLA 2000, p. 6; Sapphos 2001, p. 5-2; Sapphos 2003a, p. 3; Cooper 2015, p. 10). The Laskey Mesa population occurs over an area approximately 1 mi (1.6 km) from east to west, and 0.5 mi (0.8 km) from north to south. At the Santa Clarita population, total area occupied per year has ranged from 0.5-16.5 ac (0.2-6.7 ha) between 2002 and 2007. The most recent data from 2011 to 2014 show the cumulative acreage across years ranged from 17.8-20.7 ac (7.2-8.4 ha). There are no population estimates from 2011 through 2014. The Santa Clarita population has roughly the same occupied acreage as Laskey Mesa but is more widely distributed across the landscape, scattered over a range of 4 mi (6.4 km) from east to west, and 4 mi (6.4 km) north to south.

At the Laskey Mesa population, there is currently no on-the-ground management of Chorizanthe parryi var. fernandina; however, the site is conserved as permanent parkland as part of the Upper Las Virgenes Canyon Open Space Preserve. At the Santa Clarita population, the California Department of Fish and Game (CDFG) (referred to as the California Department of Fish and Wildlife (CDFW) as of 2014) issued a California Endangered Species Act section 2081 incidental take permit (ITP) to Newhall Land Company for the partial removal of C. parryi var. fernandina due to the proposed Newhall Ranch development project. Newhall Land Company developed the Spineflower Conservation Plan (SCP), which was finalized in 2010 (Dudek 2010a) (available at http://www.regulations.gov). The SCP serves as the mitigation and conservation plan for the purposes of the ITP (CDFG 2010, p. 2).

As part of the SCP, Newhall Land Company has created a set of seven preserves that include 76 percent of the Chorizanthe parryi var. fernandina occurrences and occupied habitat at the Santa Clarita site, the majority of which would be adjacent to and bordered by the proposed Newhall Ranch development project. The SCP also includes management actions within the preserves to reduce indirect effects of the proposed development (including those from nonnative, invasive grasses and Argentine ants (Linepithema humile)). Newhall Land Company proposes to implement an adaptive management program for impacts under the SCP (Dudek 2010a, p. 141) and the Argentine Ant Control Plan (AACP) (Dudek 2014c, p. 22). Easements and a management endowment for the preserves and monitoring have been established. The rest of the SCP has not yet been implemented.

The proposed development of Newhall Ranch would remove 24 percent of the occurrences of Chorizanthe parryi var. fernandina and its habitat, and would separate occurrences more than current conditions by removing C. parryi var. fernandina that connect, or are intermittent between, the larger concentrations of C. parryi var. fernandina within the designated preserves. Newhall Land Company has proposed to reduce the impacts of this habitat fragmentation by integrating corridors (in particular the Santa Clara River riparian corridor) into their development plans, along with potential C. parryi var. fernandina outplanting within the preserves (Dudek 2010a, pp. 146-148). Six of the seven preserves are directly connected to adjacent natural or human-created open space via the river corridor, and the seventh, Entrada, is connected to open space via an existing and frequently-maintained utility corridor (CDFW in litt. 2016, p. 3). The open space areas within the proposed Newhall Ranch project as a whole, to which the preserves are connected, are intended to maintain landscape-level ecological functions and processes (CDFW in litt. 2016, p. 2-3). Open space varies in size and habitat quality, and according to the proposed development plan, human development would be adjacent to or border the majority of the preserves and the corridors. The SCP stresses maintaining natural hydrological conditions during construction of Newhall Ranch to prevent invasion of Argentine ants. However, even though construction has not yet begun, Argentine ants have been identified in two of the preserves and in adjacent corridors. Newhall Land Company proposes to implement control measures for Argentine ants using an integrated pest management strategy (Dudek 2014c, entire).

Newhall Land Company has also deposited funds with the National Fish and Wildlife Foundation for management of Chorizanthe parryi var. fernandina at the Laskey Mesa site. The August 2014 property analysis record and September 2014 memorandum prepared by Dudek identify the management activities for C. parryi var. fernandina at Laskey Mesa (Newhall Land Company and Dudek 2014, entire). The funding is to be used for on-the-ground management activities that include research studies, fencing, weeding, surveys, annual reporting, and other activities. When this funding becomes accessible, we anticipate that the MRCA will implement the identified management activities.

In addition, Newhall Land Company recently developed a draft “San Fernando Valley Spineflower Enhancement and Introduction Plan,” which outlines a proposal to experimentally introduce Chorizanthe parryi var. fernandina to areas at the Santa Clarita site that have never been known to be occupied and are outside of the development footprint (Newhall Land Company 2016, entire). We anticipate continuing to work with Newhall Land Company and CDFW on additional conservation for C. parryi var. fernandina at the Santa Clarita population. The intervening time between a proposed and possible final rule to list this species provides the opportunity to develop measures to improve the future status of C. parryi var. fernandina at this site.

In our Species Report (Service 2016), we completed an initial evaluation of the potential effectiveness of the conservation measures in the 2010 SCP, but because Newhall Land Company is supplementing their conservation strategy, we do not consider this evaluation finalized. We will continue to work with Newhall Land Company and CDFW in the development of an expanded and supplemented conservation strategy, and will formally evaluate all measures included in the supplemental conservation strategy using the Service's Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE) (68 FR 15100; March 28, 2003), thereby taking all formalized conservation measures into consideration before making our final determination of the status of the plant.

The Act directs us to determine whether any species is an endangered species or a threatened species because of any factors affecting its continued existence. We completed a comprehensive assessment of Chorizanthe parryi var. fernandina (Service 2016, entire), which is summarized in this document and available on the Internet at http://www.regulations.gov under Docket No. FWS-R8-ES-2016-0078. All potential threats of which we are aware that may be acting upon C. parryi var. fernandina currently or in the future (and consistent with the five listing factors identified in section 4(a)(1) of the Act) are evaluated and addressed in the Species Report (Service 2016, entire).

Stressors that currently act, or may act, on Chorizanthe parryi var. fernandina in the foreseeable future include development; nonnative, invasive plants; Argentine ants; grazing and agriculture; utility line easements and maintenance; miscellaneous land use; recreation; wildfire; and climate change. The effects of these stressors are magnified by virtue of the plant having small population sizes. For the purposes of this analysis, we define the “foreseeable future” time period to be 25 years. This timeframe takes into account the potential impacts of the completion of the proposed development of Newhall Ranch, variation in climate, and planned conservation measures for the Laskey Mesa and Santa Clarita populations. All of these potential stressors are evaluated and presented in our 2016 Species Report (Service 2016, pp. 20-78). The best available data indicate that grazing and agriculture, utility line easements and maintenance, miscellaneous land use, recreation, and wildfire are not resulting in population or rangewide impacts currently or in the future such that they rise to the level of threats. We conclude this because these activities have been or will be removed from most areas that overlap C. parryi var. fernandina, with the exception of wildfire, for which current impacts at Laskey Mesa and Santa Clarita will remain approximately the same into the future. The remaining stressors—development; nonnative, invasive plants; Argentine ants; and potentially climate change—acting on the small isolated populations are described below because we have determined that population or rangewide impacts may contribute to, or are likely to contribute to, considerable loss of individuals or habitat currently or in the future.

Development consists of converting the landscape into residential, commercial, industrial, and recreational features, with associated infrastructure such as roads. Historically, Chorizanthe parryi var. fernandina was known from no fewer than 10 locations in Los Angeles and Orange Counties (CDFG 2002, p. 14) (see Figure 1, above). After 1929, the plant was presumed extinct by the botanical community because C. parryi var. fernandina was extirpated from all of the areas where it was originally collected. The majority of the historical collections of C. parryi var. fernandina from the greater Los Angeles metropolitan area were made in areas where development has replaced native habitats (Reveal and Hardham 1989, p. 149).

In 1999, Chorizanthe parryi var. fernandina was discovered at Laskey Mesa within the footprint of the proposed Ahmanson Ranch development project site. This proposed development did not occur as planned. The State of California purchased the property for conservation in 2003. In 2000, C. parryi var. fernandina was discovered near Santa Clarita on land owned by the Newhall Land Company (Dudek 2010a, pp. 16-17) at the site of the proposed Newhall Ranch development. Currently, development does not impact C. parryi var. fernandina at either population. In the future, there will be no development at the Laskey Mesa site because the property is owned and managed by the SMMC and MRCA, and preserved as permanent parkland. At the Santa Clarita site, the population is within the footprint of the proposed Newhall Ranch development project.

As planned, the future development of the proposed Newhall Ranch would directly remove 24 percent of the Chorizanthe parryi var. fernandina population and occupied habitat at the Santa Clarita site, reducing the population from 20.24 ac (8.2 ha) to 15.4 ac (6.2 ha) (Dudek 2010a, Table 12, p. 67). The proposed development would also create indirect effects by fragmenting the habitat between the occurrences of C. parryi var. fernandina, which would: (1) Create edge effects around remaining populations, such as increasing the risk of invasion of nonnative, invasive plants and animals; and (2) separate occurrences more than current conditions because much of the area between the remaining occurrences would be residential and commercial development (Dudek 2010a, pp. 48-117), potentially affecting pollination and dispersal of the plant (Steffan-Dewenter and Tscharntke 1999, p. 437; Menges 1991, pp. 158-164; Jennerston 1988, pp. 359-366; Cunningham 2000, pp. 1149-1152). These indirect effects of the proposed development would remain into the future post-construction.

Under the SCP, Newhall Land Company designated seven spineflower preserves containing 15.4 ac (6.2 ha) of Chorizanthe parryi var. fernandina occupied area, which is the remaining 76 percent of the Santa Clarita population. The SCP also includes several preserve management actions intended to address indirect effects of the proposed development. Easements and an endowment to manage and monitor the preserves have been put in place; additional management actions have not yet been implemented.

Overall, we conclude that proposed development at one of the two Chorizanthe parryi var. fernandina populations will result in the loss of 24 percent of the Santa Clarita population in the future. This equates to a loss of 12-14 percent of the plant rangewide. In addition, indirect effects to the remaining 76 percent of the Santa Clarita population (38-44 percent of the plant rangewide) are expected in the future as a result of fragmenting the landscape. This fragmentation would result in edge effects around the remaining occurrences that put these patches at risk and separate them more than they are under current conditions. It is possible that future management actions to ameliorate indirect effects of the development to the 76 percent of the population that would remain within these preserves after development could be implemented and may be effective. However, at this time, we conclude that development is a future population-level threat to the plant as it would result in loss of habitat and individuals, and further reduce the range of this plant, which is already vulnerable due to its small size and isolated populations (Factors A and E).

The effects of having small, isolated populations include increased risk of extinction from random, naturally occurring events, and potentially reduced genetic variation, which can affect the ability of a species to sustain itself into the future in the face of environmental fluctuations. There are two known populations of Chorizanthe parryi var. fernandina, one at Laskey Mesa and one at Santa Clarita, each comprising approximately 15 to 20 ac (6 to 8 ha) of occupied area. The two populations at Laskey Mesa and Santa Clarita comprise the current known range of C. parryi var. fernandina; the populations are approximately 17 mi (27 km) apart from north to south.

Because there are only two populations of Chorizanthe parryi var. fernandina, naturally occurring events and other stressors increase the risk of extirpation. Small, highly fragmented populations have a high extinction risk due to isolation (no other populations to “rescue” a declining or extirpated one) and small total population sizes (MacArthur and Wilson 1967, entire), both of which make them more vulnerable, especially to random, naturally occurring events, such as drought and wildfire (Kohlman et al. 2005, entire; Soule et al. 1992, p. 44).

In addition, lower and reduced genetic variation may make a population less adapted to existing pressures and incapable of adaptation to new stressors (Frankham 1995, entire). Thus, small populations and low genetic diversity can have synergistic effects with respect to population decline, decreasing a species' ability to persist within a changing environment. In all but extreme cases, genetic losses due to drift and inbreeding within populations can be limited by keeping population sizes large relative to their historical sizes (Neel et al. 2008, p. 939). In addition, levels of diversity can be enhanced by high rates of gene flow among populations because such gene flow increases effective population size and facilitates exchange of alleles (Neel et al. 2008, p. 950). The genetic characteristics of Chorizanthe parryi var. fernandina have not been investigated; however, Dr. Deborah Rodgers is currently conducting research of C. parryi var. fernandina's genetic structure and the degree of inbreeding depression (Dudek 2015, p. 2; Dudek 2016c, p. 9). As of January 2016, all field collection is complete and the study is ongoing (D. Rodgers 2016, pers. comm.).

Overall, we conclude that having only two small, isolated populations decreases the ability of Chorizanthe parryi var. fernandina to sustain itself into the future in the face of environmental fluctuations and random, naturally occurring events. Historically, the plant was known from no less than 10 additional locations across southern California. This stressor will continue to affect C. parryi var. fernandina and its habitat at both sites into the future. It is possible that additional populations at historically occupied but currently extirpated sites would decrease the risk of having small, isolated populations for C. parryi var. fernandina into the future. However, at this time, we conclude that having small, isolated populations is a current and future population-level threat to the plant (Factor E).

Nonnative, invasive plants include nonnative vegetation that occurs within or adjacent to habitat that supports Chorizanthe parryi var. fernandina. In particular, we focused on the impacts of nonnative grasses and other fast-invading, nonnative annual plants because they are abundant at both sites and are efficient at displacing native vegetation. Nonnative, invasive grasses historically affected the Laskey Mesa and Santa Clarita populations (GLA 2000, p. 5; Dudek 2010a, pp. 48-51). Past activities (e.g., grazing and other human-induced disturbances) have historically occurred over most of the Upper Las Virgenes Canyon Open Space Preserve area including Laskey Mesa; it is not known whether Laskey Mesa was formerly native grassland, coastal scrub, or a mix of both prior to European contact (Dudek 2010a, p. 21). Historical and existing grazing activities, and other historical land uses, have affected much of the natural habitat at the Santa Clarita site, displacing scrub habitats with annual grasslands (Dudek 2010a, pp. 48-51). Currently, nonnative, invasive grasses are abundant at both the Laskey Mesa and Santa Clarita sites and reduce available habitat; compete with C. parryi var. fernandina for light, water, and soil nutrients; increase the potential for wildfire; and alter pollinator communities. As of 2015, the vegetation at Laskey Mesa was largely comprised of nonnative grasses, primarily ripgut brome (Bromus diandrus), but also several other native and nonnative grasses (notably purple needlegrass (Nassella pulchra)) (Cooper 2015, p. 5). At the Santa Clarita site, currently 29 percent of the total species are nonnative within the spineflower preserves (Dudek 2013, p. 13); 11 nonnative species in the grass family (Poaceae) were present (Appendix B of Dudek 2013).

This stressor will continue to affect Chorizanthe parryi var. fernandina and its habitat at both sites into the future. With no future land use change at the Laskey Mesa population, we do not anticipate the impact of nonnative, invasive plants will become worse than current conditions, given that disturbance is a primary factor that promotes the invasion of nonnative plants (Rejmanek 1996; D'Antonio and Vitousek 1992; Hobbs and Huenneke 1992; Brooks et al. 2004; Keeley et al. 2005). At the Santa Clarita population, the proposed development of Newhall Ranch would convert areas that currently contain nonnative vegetation to urban areas, thereby reducing the total acreage of nonnative vegetation at this site, but this ground disturbance would also create additional opportunities for nonnative plants to invade urban edges of the spineflower preserves and natural open space. In general, nonnative weedy species are often edge species and become more prevalent or increase in abundance, while rare and sensitive species and species that were once widespread tend to decline (Hilty et al. 2006, pp. 42-45).

There are currently no management actions that are occurring to reduce direct or indirect impacts from nonnative, invasive plants. However, we note the following future proposed actions:

(1) We anticipate that the MRCA will address the abundance of nonnative vegetation at Laskey Mesa once the funding becomes available for management; however, to date management actions have not been implemented at this site, and the timeline for management actions is unknown.

(2) Newhall Land Company has proposed to restore habitat for Chorizanthe parryi var. fernandina at Santa Clarita and implement measures as part of the proposed development of Newhall Ranch to reduce the abundance and impact of nonnative vegetation within the spineflower preserves.

Overall, we conclude that nonnative, invasive plants are abundant at both Laskey Mesa and Santa Clarita populations, reduce available habitat quality, compete with Chorizanthe parryi var. fernandina for resources, and increase potential for wildfire. This stressor historically affected Laskey Mesa and Santa Clarita populations and will continue to affect C. parryi var. fernandina and its habitat at both sites into the future. It is likely that future management actions to reduce the presence and impact of nonnative, invasive grasses would be implemented in the future and may be effective. We will further evaluate future conservation measures at such time that Newhall Land Company finalizes supplementing their conservation strategy. However, at this time, we conclude that nonnative, invasive plants are a current and future population-level threat to C. parryi var. fernandina (loss of individuals) and its habitat (Factors A and E).

Argentine ants may impact pollination and seed dispersal vectors of Chorizanthe parryi var. fernandina. Based on the best available information, Argentine ants have not historically impacted the Laskey Mesa or Santa Clarita populations of C. parryi var. fernandina. Currently at Laskey Mesa, Argentine ants are present in close proximity to the ranch house and a nearby eucalyptus (Eucalyptus spp.) tree, but they were not encountered in areas occupied by C. parryi var. fernandina because, presumably, the conditions are too dry and thus unsuitable (Sapphos 2000, pp. 6-8). At Santa Clarita, as of February 2016, Argentine ants are present within two spineflower preserves, Entrada and Potrero (Dudek, 2016b, pp. 17, 20), in the Santa Clara River corridor (Dudek 2016b, entire), at Middle Canyon Spring (Dudek 2010a, p. 130), and in the existing utility corridor that runs along the southern portion of the property and through the Entrada Preserve (Dudek 2016b, p. 17). We do not have any information regarding the presence of Argentine ants where C. parryi var. fernandina occurs outside of the preserves at this site.

At Laskey Mesa, we do not expect Argentine ants will impact Chorizanthe parryi var. fernandina in the future without a change in land use. At Santa Clarita, Argentine ants already occur and we would expect them to occur within development areas and open areas adjacent to the preserves in the future after development of the proposed Newhall Ranch (Dudek 2010a, p. 130; Dudek 2016b, pp. 4-20). Anthropogenic modifications to the physical environment are preeminent in determining the extent to which Mediterranean scrub communities in southern California are susceptible to invasion by Argentine ants (Holway et al. 2002, p. 1617). Invasion of Argentine ants into natural areas from urban areas is a function of moisture, distance from the urban edge, season, and vegetation type (Bolger 2007, p. 303; Suarez et al. 1998, pp. 2047-2054; Erickson 1971, p. 264; Human and Gordon 1996, p. 408; Holway 1995, p. 1635; Holway 2005, pp. 563-566; Staubus et al. 2015, p. 677). Because Argentine ants are present within two preserves and the Santa Clara River corridor and utility corridor, and because of the proposed development of Newhall Ranch, we anticipate that Argentine ants will be a long-term concern for the persistence of C. parryi var. fernandina at this site.

Argentine ants can affect Chorizanthe parryi var. fernandina reproduction by reducing effective pollination, successful seed set, and potentially the degree of heterozygosity of plants. Argentine ants are known to: (1) Displace native epigeic (above-ground) ants (Ward 1987, pp. 13; Human and Gordon 1996, pp. 407-411; Suarez et al. 1998, pp. 2047-2054; Holway 2005, pp. 563-566; Holway and Suarez 2006, pp. 321-322; Bolger 2007, pp. 301-303) that act as pollination and seed dispersal vectors for C. parryi var. fernandina; and (2) reduce floral visits by bees and thus reduce fruit production of plants (i.e., Calystegia macrostegia ssp. macrostegia (Santa Cruz morning glory) (Hanna 2015, p. 226); Ferocactus viridescens (coast barrel cactus) (LeVan and Holway 2014, pp. 167-169)) in areas dominated by Argentine ants. Based on the best available data, maintaining conditions that support both terrestrial and aerial guilds of pollinators is likely required for long-term viability of C. parryi var. fernandina (Jones et al. 2009, p. 39). The loss of effective pollination through reductions in local pollinator abundance and diversity would reduce successful seed set, or if the plant is at least partially self-compatible, would reduce the degree of heterozygosity within plant (Jones et al. 2010, p. 165). C. parryi var. fernandina would have difficulty maintaining long-term viability after a series of poor seed-production years without a natural diversity of pollinators because effective pollinators lead to significant increases in seed set and seed viability (Jones et al. 2009, p. 39; for examples of other annual plants, see Steffan-Dewenter and Tscharntke 1999, entire; Jennersten 1988, entire).

Newhall Land Company incorporated buffers of varying widths in the SCP and proposes to maintain the current hydrology within the spineflower preserves (Dudek 2010a, pp. 15, 125-129) to reduce the potential invasion of Argentine ants into the preserves. Abiotic conditions (e.g., soil moisture) and proximity to human development are primarily responsible for the rate of Argentine ant invasions (Suarez et al. 1998, pp. 2047-2054). Buffers between natural areas and urbanization have been suggested to decrease the likelihood of Argentine ant invasion. According to the best scientific information, the varying widths of the buffers around the spineflower preserves in the SCP are less than what is recommended to preclude Argentine ant invasion at urban edges and the proposed water control measures range from moderately to highly effective (Conservation Biology Institute 2000, p. 21; Dudek 2010b, p. 4.5-1770). Newhall Land Company proposes to utilize control methods if Argentine ants are observed in the preserves. The proposed Argentine ant control measures in the SCP and AACP could negatively impact other arthropods that are beneficial to Chorizanthe parryi var. fernandina, may not be applicable to controlling invasion into preserves (Gilboa et al. 2012, entire; Enzmann et al. 2012, entire) such as those at Santa Clarita, or are only recommended in closed systems where reintroduction of Argentine ants can be actively withheld (Enriquez Leni 2012, p. 55). The impacts to C. parryi var. fernandina from Argentine ants are likely to increase at Santa Clarita with the proposed development of Newhall Ranch.

Overall, Argentine ants can directly impact pollinators and reduce effective pollination, reduce successful seed set, and may reduce the degree of heterozygosity of plants. Argentine ant invasion into the spineflower preserves is likely to displace native epigeic ants that are known pollinators and seed dispersers of Chorizanthe parryi var. fernandina. Similarly, non-ant arthropods that are known pollinators (e.g., honeybees) are likely to be negatively impacted by the presence of Argentine ants in the preserves. Conservation of conditions that support both guilds of pollinators is likely required for long-term viability of C. parryi var. fernandina. This stressor has not historically impacted C. parryi var. fernandina at either population. We do not anticipate an impact from Argentine ants at Laskey Mesa because there is no future land use change. At Santa Clarita, Argentine ants currently occur within two preserves (Entrada and Potrero), and the Santa Clara River corridor that connects six of the seven preserves. Argentine ants will occur adjacent to the preserves in the future post-development, and it is likely that Argentine ants will occur in other preserves in the future. It is likely that future management actions to reduce the presence and impact of Argentine ants at Santa Clarita would be implemented. Proposed actions to control Argentine ants have not been shown to be effective without negatively affecting native species that are important for C. parryi var. fernandina reproduction. We will further evaluate future conservation measures aimed at controlling Argentine ants at such time that Newhall Land Company finalizes supplementing their conservation strategy. However, at this time, we conclude that Argentine ants are a current and future population-level threat to C. parryi var. fernandina (loss of individuals) (Factor E).

The term “climate” refers to the mean and variability of different types of weather conditions over time, with 30 years being a typical period for such measurements, although shorter or longer periods also may be used (IPCC 2014, p. 119). The term “climate change” thus refers to a change in the mean or variability of one or more measures of climate (for example, temperature or precipitation) that persists for an extended period, typically decades or longer, whether the change is due to natural variability, human activity, or both (IPCC 2014, p. 120). A recent synthesis report of climate change and its effects is available from the Intergovernmental Panel on Climate Change (IPCC) (IPCC 2014, entire).

Global climate projections are informative, and in some cases, the only scientific information available. However, projected changes in climate and related impacts can vary substantially across and within different regions of the world (e.g., IPCC 2007, pp. 8-12). For this analysis across the two populations of Chorizanthe parryi var. fernandina, we used a projection tool called ClimateWizard (2015) to estimate what changes in rainfall and temperature, if any, would occur in the region that includes the Santa Clarita and Laskey Mesa populations over the next 50 years. ClimateWizard (2015) is useful in projecting future climate conditions and to compare the projections to baseline values (the latter of which is defined as the average temperature or precipitation between 1961 and 1990 (ClimateWizard 2015)).

There is no way to measure past impacts at either population associated with climate change. Compared to historical/baseline temperature and precipitation measurements, projections of climate change in the south coast region of California indicate that precipitation will decrease slightly and temperature will slightly increase by mid-century. The response of Chorizanthe parryi var. fernandina may be similar to other plant species with a similar life history. A growing body of literature discusses the specific mechanisms by which climate change could affect the abundance, distribution, and long-term viability of plant species, as well as current habitat configuration over time, including, but not limited to: Root et al. (2003), Parmesan and Yohe (2003), and Visser and Both (2005). Some of the responses by plants to climate change presented by these studies and others include the following:

1. Drier conditions may result in less suitable habitat, or a lower germination success and smaller population sizes;

2. Higher temperatures may inhibit germination, dry out soil, or affect pollinator services;

3. The timing of pollinator life cycles may become out-of-sync with timing of flowering;

4. A shift in the timing and nature of annual precipitation may favor expansion in abundance and distribution of nonnative species; and

5. Drier conditions may result in increased fire frequency, making the ecosystems in which a species currently grows more vulnerable to threats of nonnative plant invasion.

Overall, although many climate models generally agree about potential future changes in temperature and precipitation, their consequent effects on vegetation are more uncertain, as is the rate at which any such changes might be realized. It is not clear how or when changes in vegetation type or plant species composition will affect the distribution of Chorizanthe parryi var. fernandina. Therefore, uncertainty exists when determining the level of impact climate change may have on C. parryi var. fernandina or its habitat. Compared to historical/baseline temperature and precipitation measurements, projections of climate change in the south coast region of California indicate that precipitation will decrease slightly and temperature will slightly increase by mid-century. But at this time and based on the analysis in the Species Report (Service 2016, pp. 73-78) and summarized above, we do not have reliable information to indicate that climate change is a threat to C. parryi var. fernandina habitat now or in the future, although we will continue to seek additional information concerning how climate change may affect the plant and its habitat (Factors A and E).

When stressors occur together, one stressor may exacerbate the effects of another stressor, causing effects not accounted for when stressors are analyzed individually. Synergistic effects may be observed in a short amount of time or may not be noticeable for years into the future, and could affect the long-term viability of Chorizanthe parryi var. fernandina. Stressors that could act synergistically on C. parryi var. fernandina include development; having small, isolated populations; nonnative, invasive plants; Argentine ants; wildfire, and potentially climate change. At the Laskey Mesa site, the presence of nonnative, invasive grasses increases the frequency of wildfire, which in turn creates more open area for nonnative, invasive plants to grow that are more likely to ignite and carry fire than native vegetation (Keeley et al. 2005, p. 2123). At the Santa Clarita site, the future development of Newhall Ranch would directly remove 24 percent of the C. parryi var. fernandina population, fragmenting the habitat between the occurrences of C. parryi var. fernandina, which will create edge effects around remaining occurrences within the spineflower preserves, and increase the risk of invasion of Argentine ants and nonnative, invasive plants. In general, invasive species are often edge species and become more prevalent or increase in abundance, while rare and sensitive species and species that were once widespread tend to decline (Hilty et al. 2006, pp. 42-45). In addition, the potential loss of habitat and conditions that support growth of C. parryi var. fernandina due to climate change can work in combination with and exacerbate the effects of all other stressors, such as increasing the frequency or intensity of wildfire and increasing the spread of nonnative, invasive plants and animals. When considered together, the impact of these stressors has the potential to be high. Even though the impact of each of these stressors may be low to moderate under current conditions, the proposed development of Newhall Ranch, which would occur over the next 25 years, will likely exacerbate the impact of the stressors while confining the C. parryi var. fernandina population at this site to small patches of suitable habitat adjacent to and bordered by urban development. Long-term future impacts may increase synergistic effects, and it is unknown if C. parryi var. fernandina will be able to adapt to the potential synergistic effect of stressors.

We use the principles of resiliency, representation, and redundancy as a lens to evaluate current and future effects to Chorizanthe parryi var. fernandina. Resiliency refers to the capacity of an ecosystem, population, or organism to recover quickly from disturbance by tolerating or adapting to changes or effects caused by a disturbance or a combination of disturbances. The degree of resiliency of a species is influenced by the health of the populations, including number of individuals, genetic diversity, and habitat quality. Resiliency increases with a higher number of individuals, increasing genetic diversity, or better habitat quality; it decreases with fewer individuals, less genetic diversity, or lowered habitat quality. In the case of Chorizanthe parryi var. fernandina, the number of individuals can fluctuate annually by orders of magnitude (GLA 2000; Sapphos 2000, 2001; Dudek 2010a; Cooper 2015; Dudek 2002-2007, 2010, 2011-2014). The genetic characteristics of C. parryi var. fernandina have not been investigated; however, Dr. Deborah Rodgers is currently conducting research into C. parryi var. fernandina's genetic structure and the degree of inbreeding depression (Dudek 2015, p. 2; Dudek 2016c, p. 9). Habitat quality for C. parryi var. fernandina at the Santa Clarita population would be affected by fragmentation from the proposed Newhall Ranch development, which would result in edge effects, such as increasing the risk of invasion of nonnative, invasive plants and animals. Occurrences of C. parryi var. fernandina and its habitat would be more separated than current conditions because occurrences that connect, or are intermittent between, the larger concentrations of C. parryi var. fernandina within the designated preserves would be lost to development, potentially affecting pollination and dispersal of the plant. Highly fragmented populations have an increased extinction risk due to isolation because they are less likely to be repopulated or supplemented by nearby populations, which makes them more vulnerable, especially to random, naturally occurring events such as drought and wildfire (Kohlman et al. 2005, entire; Soule et al. 1992, p. 44). Reducing resiliency by decreasing habitat quality at the Santa Clarita population increases the overall risk to the plant from disturbance or a combination of disturbances. The best scientific and commercial information available indicates that there are current and future stressors acting upon C. parryi var. fernandina populations such that we anticipate impacts to its overall resiliency in the future.

Redundancy refers to the ability of a species to compensate for fluctuations in or loss of populations across the species' range such that the loss of a single population has little or no lasting effect on the structure and functioning of the species as a whole. Multiple interacting populations across a broad geographic area provide insurance against the risk of extinction caused by catastrophic events. Because historically there were no fewer than 10 additional populations across Los Angeles and Orange Counties in Southern California, redundancy is decreased for Chorizanthe parryi var. fernandina. If either of the two extant populations were permanently lost, the redundancy of C. parryi var. fernandina would be further lowered, thereby decreasing the plant chance of survival in the face of potential environmental or demographic stochastic factors and catastrophic events (e.g., wildfire, extreme drought). We conclude that there is not sufficient redundancy at present to sustain C. parryi var. fernandina over the long term, given current and future stressors acting upon the population.

Representation refers to a species' ability to adapt to changing environmental conditions related to distribution within the species' ecological settings. Representation is characterized by the breadth of genetic and environmental diversity within and among populations. The level of genetic divergence among the areas where Chorizanthe parryi var. fernandina grows is unknown. However, occupied area across multiple populations increases the probability of demographic persistence and preservation of overall genetic diversity by providing a larger genetic reservoir. Historically, there were no fewer than 10 C. parryi var. fernandina populations across southern California, representing at least five level IV ecoregions of the conterminous United States. Ecoregions denote areas of general similarity in ecosystems through analysis of patterns of biotic and abiotic phenomena, including geology, physiography, vegetation, climate, soils, land use, wildlife, and hydrology; level IV is the finest ecoregion level developed by the Environmental Protection Agency (Environmental Protection Agency 2016; https://catalog.data.gov/dataset/level-iv-ecoregions-of-california). Currently, there are only two C. parryi var. fernandina populations, 17 mi (27 km) apart, representing only one level IV ecoregion. Therefore, we conclude that representation across different ecological settings for C. parryi var. fernandina is reduced, decreasing the ability of the plant to adapt to changing environmental conditions into the future, which increases the risk of future extirpation of the plant.

Overall, redundancy and representation are currently reduced and resiliency is likely to decrease in the future, bringing into question whether Chorizanthe parryi var. fernandina can sustain itself in the face of environmental fluctuations and random, naturally occurring events. Fragmentation of the Santa Clarita population is likely to decrease habitat quality, reducing resiliency at this population and increasing the overall risk to the plant from random, naturally occurring events. With only two populations, there may not be sufficient redundancy to sustain C. parryi var. fernandina over the long term, given current and future stressors acting upon the populations. Currently, the two C. parryi var. fernandina populations represent only one level IV ecoregion, down from five, decreasing the ability of the plant to adapt to changing environmental conditions into the future. At this time, we conclude that there may not be sufficient resiliency, representation, or redundancy to sustain C. parryi var. fernandina over the long term, given current and future stressors acting upon the plant.

Please refer to the Potential Stressors section in the San Fernando Valley Spineflower (Chorizanthe parryi var. fernandina) Species Report (Service 2016, pp. 20-78) for a more detailed discussion of our evaluation of the biological status of the plant and the factors that may affect its continued existence. Our conclusions are based upon the best available scientific and commercial data.

Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on (A) The present or threatened destruction, modification, or curtailment of its 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. Listing actions may be warranted based on any of the above threat factors, singly or in combination. This document constitutes the Service's 90-day and 12-month findings on the December 6, 1999, and January 27, 2000, petitions to list Chorizanthe parryi var. fernandina under the Act as an endangered species.

Based on our review of the best scientific and commercial information available, we find that the current threats are of sufficient imminence, intensity, or magnitude to indicate that Chorizanthe parryi var. fernandina is likely to become an endangered species within the foreseeable future throughout all of its range (threatened). We have determined that C. parryi var. fernandina warrants listing based on two of the five factors (Factors A and E), including historical and future loss of habitat and individuals from development (Factors A and E); having small, isolated populations (Factor E); presence of invasive, nonnative plants (Factors A and E); proliferation of Argentine ants (Factor E); and potentially climate change (Factors A and E).

The Laskey Mesa population is currently affected by nonnative, invasive grasses (Factors A and E), being one of two small, isolated populations (Factor E), and potentially by climate change (Factors A and E). Past land-use activities (e.g., grazing and other human-induced disturbances), which have historically occurred over most of the Upper Las Virgenes Canyon Open Space Preserve area including Laskey Mesa, have greatly modified the vegetation and replaced many native plant habitats into nonnative annual grasslands (GLA 2000, p. 5). Nonnative, invasive grasses are currently reducing available habitat for Chorizanthe parryi var. fernandina throughout this population and degrading the overall quality of the habitat, although this impact may decrease in the future when management is implemented.

The Santa Clarita population is currently affected by nonnative, invasive grasses (Factors A and E); Argentine ants (Factor E); being one of two small, isolated populations (Factor E); and potentially by climate change (Factors A and E). The impacts of nonnative grasses occur throughout the entire population at this site, although this impact may decrease in the future when management is implemented. Argentine ants are currently present within at least two spineflower preserves (Entrada and Potrero), and within the Santa Clara River corridor. The invasion of Argentine ants into the preserves is likely to displace or negatively affect arthropods, including known Chorizanthe parryi var. fernandina pollinators (e.g., epigeic ants, beetles (Coleoptera), flies (Diptera), honeybees) and seed dispersers (e.g., harvester ants), reducing the natural diversity of pollinators and dispersers, which is expected in turn to decrease the long-term viability of C. parryi var. fernandina after a series of poor seed-production years.

The Santa Clarita population will also be affected in the future by the proposed Newhall Ranch development project (Factors A and E). The development of Newhall Ranch will remove 24 percent of the Chorizanthe parryi var. fernandina population at this site, resulting in loss of individuals and habitat. The resulting fragmentation could increase impacts of random, naturally occurring events and result in loss of genetic variation. In addition, edge effects include increased risk of invasion of nonnative plants (Factors A and E) and Argentine ants (Factor E). Argentine ants will likely occur adjacent to the preserves in the future post-development, and it is likely that Argentine ants will occur in other preserves that are currently free of Argentine ants in the future.

Population size, distribution, and diversity can be an indicator of whether a species can sustain itself into the future in the face of environmental fluctuations and natural, randomly occurring events. Decreased resiliency at the Santa Clarita population due to habitat fragmentation from the proposed Newhall Ranch development would increase the overall risk to the plant from disturbance or a combination of disturbances. With only two populations, Chorizanthe parryi var. fernandina exhibits low redundancy at present, which may be insufficient to sustain the plant over the long term, given current and future stressors acting upon the populations. Historically C. parryi var. fernandina populations across southern California represented at least five level IV ecoregions; currently, the two C. parryi var. fernandina populations represent only one level IV ecoregion, decreasing the ability of the plant to adapt to changing environmental conditions into the future. At this time, we conclude that there may not be sufficient resiliency, redundancy, or representation to sustain C. parryi var. fernandina over the long term, given current and future stressors acting upon the populations.

The Act defines the term “species” as includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature. The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” We find that Chorizanthe parryi var. fernandina is likely to become endangered throughout all or a significant portion of its range within the foreseeable future based on the current and future threats to the plant. The plants' historical range has been significantly reduced, and the remaining habitat and two populations are significantly and currently impacted by multiple threats at the population or rangewide scale. Therefore, on the basis of the best available scientific and commercial information, we propose listing C. parryi var. fernandina as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act.

The threats associated with indirect effects to the Santa Clarita population from the Newhall Ranch proposed development (e.g., fragmentation and edge effects) are expected in the future. Fragmentation would separate Chorizanthe parryi var. fernandina occurrences more than current conditions, potentially reducing pollination and dispersal, and result in edge effects around the remaining post-development occurrences, including an increase in nonnative plants and Argentine ants. Because these are future threats, we have determined that C. parryi var. fernandina is not currently in danger of extinction and thus does not meet the definition of “endangered.” Rather, these threats are likely to occur in the foreseeable future such that the plant is likely to become endangered throughout all or a significant portion of its range within the foreseeable future, which is the definition of a threatened species.

Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. Because we have determined that Chorizanthe parryi var. fernandina is threatened throughout all of its range, no portion of its range can be “significant” for purposes of the definitions of “endangered species” and “threatened species.” See the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37578; July 1, 2014).

Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Completed recovery plans may be revised to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria to evaluate when a species may be ready for downlisting or delisting, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. If we list Chorizanthe parryi var. fernandina, the recovery outline, draft recovery plan, and the final recovery plan for the plant will be available on our Web site (http://www.fws.gov/endangered), or from our Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands. If Chorizanthe parryi var. fernandina is listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of California would be eligible for Federal funds to implement management actions that promote the protection or recovery of C. parryi var. fernandina. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

Although Chorizanthe parryi var. fernandina is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this plant. Additionally, we invite you to submit any new information on this plant whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT).

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.

Federal agency actions within the plants' habitat that may require conference or consultation or both under section 7 of the Act as described in the preceding paragraph include, but are not limited to, management and any other landscape-altering activities on Federal lands and activities on non-Federal lands that require the issuance of section 404 Clean Water Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps of Engineers.

It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the range of the species proposed for listing. The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered and threatened plants. With regard to threatened plants, 50 CFR 17.71 provides that all of the prohibitions in 50 CFR 17.61 applicable to endangered plants apply to threatened plants, with one exception. Thus, the regulations at 50 CFR 17.71(a) make it illegal for any person subject to the jurisdiction of the United States to import or export, transport in interstate or foreign commerce in the course of a commercial activity, sell or offer for sale in interstate or foreign commerce, or remove and reduce the species to possession from areas under Federal jurisdiction any threatened plant. There is an exception for the seeds of cultivated specimens, provided that a statement that the seeds are of “cultivated origin” accompanies the seeds or their container. The Service concludes that the following activities would not result in violation of section 9 (this list is not comprehensive): Activities on private land such as grazing management, agricultural conversions, flood and erosion control, residential development, road construction, and pesticide/herbicide application when consistent with label restrictions. Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Critical habitat is defined in section 3 of the Act as:

(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features:

(a) Essential to the conservation of the species, and

(b) Which may require special management considerations or protection; and

(2) 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.

Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species.

There is currently no imminent threat to Chorizanthe parryi var. fernandina from collection or vandalism under Factor B, and identification and mapping of critical habitat is not likely to increase any such threat. In the absence of finding that the designation of critical habitat would increase threats to a species, if there are any benefits to a critical habitat designation, then a prudent finding is warranted. The potential benefits of designation include: (1) Triggering consultation under section 7 of the Act in new areas for actions in which there may be a Federal nexus where it would not otherwise occur because, for example, it is or has become unoccupied or the occupancy is in question; (2) focusing conservation activities on the most essential features and areas; (3) providing educational benefits to State or county governments or private entities; and (4) preventing people from causing inadvertent harm to the plant. Therefore, because we have determined that the designation of critical habitat will not likely increase the degree of threat to C. parryi var. fernandina and may provide some measure of benefit, we find that designation of critical habitat is prudent for C. parryi var. fernandina.

Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the species is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist: (i) Information sufficient to perform required analyses of the impacts of the designation is lacking, or (ii) The biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat.

As discussed above, we have reviewed the available information pertaining to the biological needs of Chorizanthe parryi var. fernandina and habitat characteristics where this plant is located. On the basis of a review of available information, we find that critical habitat for C. parryi var. fernandina is not determinable because the specific information sufficient to perform the required analysis of the impacts of the designation is currently lacking. We will make a determination on critical habitat no later than 1 year following any final listing determination.

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(1) Be logically organized;