The Office of Personnel Management (OPM) is increasing the cost-of-living allowance (COLA) rates paid to certain Federal employees in Hawaii, Guam, Puerto Rico, and the U.S. Virgin Islands. The table below shows the new allowance rates and the places where they apply. The COLA rates in all other allowance areas remain the same.

OPM is making these changes pursuant to section 9 and Exhibit C of the stipulation for settlement of Caraballo et al. v. United States, Civil No. 1997/27 (D.V.I.). The court approved the settlement on August 17, 2000. The settlement prescribes the new COLA rates and requires that they be made effective on the first day of the first applicable pay period beginning on or after October 1, 2000. OPM is using an interim rule to implement these increases so that agencies can apply the new rates in a timely fashion.

Under 5 U.S.C. 553(b)(3)(B) and (d)(3), OPM finds that good cause exists to waive the publication of proposed rulemaking and the 30-day delay in the effective date of this regulation. Consistent with the terms of the court-approved settlement agreement, we believe it is in the public interest to implement the interim COLA rate increases immediately. In the future, as we have done in the past, we plan to announce COLA rate adjustments in a proposed rule for public notice and comment.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation will affect only Federal agencies and employees.

This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.

Section 234.2(a) provides that:

• Aircraft carrying passengers or crew who are required to be inspected under section 235 of the Immigration and Nationality Act (Act) on flights originating in Cuba shall land only at Fort Lauderdale-Hollywood Airport, Fort Lauderdale, Florida, unless

• Advance permission to land elsewhere has been obtained from the District Director of the Immigration and Naturalization Service at Miami, Florida.

In a statement issued on January 5, 1999, the President announced a series of humanitarian measures designed to reach out to and ease the plight of the Cuban people and to help them prepare for a democratic future. As one of these measures, the President authorized the restoration of flights between Cuba and some cities in the United States in addition to South Florida. The purpose of this measure is to facilitate licensed travel to and from Cuba, including family reunification for Cuban resident aliens and U.S. citizens of Cuban heritage living in the United States cities other than in the Miami/Fort Lauderdale area.

Section 235.2(a) is being amended to allow direct flights from Cuba to land at:

• John F. Kennedy International Airport, Jamaica, New York,

• Los Angeles International Airport, Los Angeles California, or

• Miami International Airport, Miami, Florida.

No, direct flights will not be allowed to land at any other airport in the United States, including Fort Lauderdale, unless advance permission to land elsewhere has been obtained from the Office of Field Operations at Headquarters.

The Department of State and the National Security Council have specifically directed that direct charter passenger flights by persons who possess a valid Office of Foreign Assets Control Carrier Service Provider authorization may operate between Cuba and John F. Kennedy International Airport, Jamaica, New York, Los Angeles International Airport, Los Angeles, California, or Miami International Airport, Miami, Florida.

The United States Customs Service amended its regulations at 19 CFR 122.153 and 122.154 to permit travel to the same three designated airports in a final rule published in the Federal Register on October 4, 1999, at 64 FR 53627.

Pursuant to the provisions of 5 U.S.C. 553(a)(1), public notice and comment procedure is not applicable to this rule because this rule falls within the foreign affairs function of the United States. As previously noted, the rule implements a January 5, 1999, announcement by the President that direct passenger flights would be authorized to and from Cuba and other U.S. cities as part of a humanitarian effort designed to reach out and ease the plight of the Cuban people. Because this document is not subject to the requirements of 5 U.S.C. 553, delayed effective date requirements are not applicable.

The Commissioner of the Immigration and Naturalization Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule affects individuals and families and is intended to facilitate licensed travel to and from Cuba.

This rule is not considered by the Department of Justice, Immigration and Naturalization Service, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and the Office of Management and Budget has waived its review process under section 6(a)(3)(A).

This regulation will not have 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. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This rule will not 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, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

The purpose of the Truth in Lending Act (TILA), 15 U.S.C. 1601 et seq. , is to promote the informed use of consumer credit by requiring disclosures about its terms and cost. The Board's Regulation Z (12 CFR part 226) implements the act. The act requires creditors to disclose the cost of credit as a dollar amount (the finance charge) and as an annual percentage rate (the APR). Uniformity in creditors' disclosures is intended to assist consumers in comparison-shopping.

The Fair Credit and Charge Card Disclosure Act of 1988 (1988 Act) amended TILA generally to require that the APR and certain other terms (primarily applicable to purchase transactions) be disclosed in direct mail and certain other solicitations and applications to open credit and charge card accounts. The purpose of the 1988 Act was to ensure that consumers receive key cost information about credit and charge cards early enough to have the opportunity to comparison shop for such cards. The 1988 Act generally requires that card application and solicitation disclosures be provided in the form of a table (commonly referred to as the “Schumer box” after the law's chief sponsor) with headings for each item of information. The terms required to be in the table include: the name of the method used for calculating finance charges on an outstanding balance, any minimum finance charge per billing cycle, transaction fee, annual fee, grace period, and the APR for purchase transactions. The card issuer also must disclose any cash advance fee, late payment fee, or fee for exceeding a credit limit. These items may be either in the required table or clearly and conspicuously elsewhere. The applicable disclosures must also be provided for charge cards, which do not have a periodic rate that is used to compute a finance charge.

As with all TILA disclosures, the table is subject to the “clear and conspicuous” standard. Currently, the table meets the “clear and conspicuous” standard if the disclosures are in a “readily understandable form.” There are no type-size requirements associated with this standard. The table is also required to be in a “prominent location” on or with the application or solicitation. Under the existing rules, this requirement is met if the table is “readily noticeable to the consumer” but the table need not be in any particular location to satisfy the requirement.

Over the years, the pricing of credit card programs has changed, and the cost disclosures accompanying card issuers' solicitations and applications have become more complex. Multiple APRs may apply to a single program. There may be a temporary introductory rate, a fixed or variable rate for all purchases after the introductory period expires, and one or more “penalty rates” that apply if, for example, the consumer makes late payments. There may also be separate rates that apply to cash advances and balance transfers.

As interest rates and other account features have become more complex, and disclosures longer, some card issuers have compensated by using reduced type sizes for the table instead of allocating additional space for the disclosures. In such cases, consumers may have difficulty in using the table to readily identify key costs and terms. In contrast, the promotional materials that accompany the credit card application or solicitation may highlight a low introductory APR in a large, easy to read type size; oftentimes without the expiration date in close proximity. The APR in effect after the introductory rate expires typically is disclosed much less prominently—in a smaller type size—and it may only appear in the disclosure table and not at all in the promotional materials. The table may be in a location that is less likely to capture the consumer's attention, for example, on the reverse side of an application or on the last page of a multi-page solicitation.

Even with the format requirements, the current regulatory framework allows substantial flexibility in how and where disclosures are presented. While some card issuers' disclosures are fairly straightforward, other card issuers have created disclosures that are difficult for consumers to use. Accordingly, changes to the current regulatory scheme appear necessary to ensure that consumers receive meaningful disclosures on a more consistent basis, for comparison-shopping.

On May 24, 2000, the Board published proposed revisions to Regulation Z and the accompanying commentary to revise the disclosure requirements for credit and charge card solicitations and applications (65 FR 33499). The proposal was issued pursuant to the Board's authority under the 1988 Act to require disclosure of additional information or to modify disclosures required by the statute if the Board determines that such action is necessary to carry out the purposes of, or prevent evasions of the 1988 Act. See 15 U.S.C. 1637(c)(5). The proposed revisions were also issued under the Board's authority under section 105(a) of TILA to prescribe regulations to effectuate the purposes of TILA, to prevent circumvention or evasion, or to facilitate compliance. See 15 U.S.C. 1604(a).

Under the proposal, the APR applicable to purchase transactions would be subject to a type-size requirement, to highlight this information. It would be in 18-point type and would appear with any introductory rate under a separate heading from other APRs, such as the penalty rate. The proposal also more strictly construes the requirement that disclosures be clear and conspicuous by requiring that information in the table be “readily noticeable,” in addition to being reasonably understandable. As to type size, disclosures in at least 12-point type were deemed readily noticeable.

The proposal gave additional guidance on satisfying the current requirements that disclosures be prominently located. Under the proposal, disclosures would be prominently located if, for example, they are on the same page as an application or solicitation reply form, or on a separate insert with a reference to the insert on the application or reply form.

To avoid clutter, guidance was proposed to reduce the level of detail required or permitted in the table, and to promote the use of more concise language. For example, card issuers must disclose the penalty rate APR and the conditions under which a rate may be imposed such as when payments are late. Under the proposal, only the rate could be included in the table; all explanatory information must be located elsewhere. The Board also solicited comment on whether additional rates and fees should be disclosed in the table.

The Board received more than 250 comment letters. More than half of the comment letters were from consumers that addressed issues outside of the scope of the proposal. More than 80 comment letters were received regarding the proposed revisions. Most of these comments were from financial institutions and their representatives; about one-fourth were from individual consumers.

In general, most commenters supported the Board's effort to improve disclosures for credit and charge card applications and solicitations. Most industry commenters, however, objected to specific aspects of the proposal or requested clarification of the rules. In particular, industry commenters objected to the use of type-size requirements and stated that the use of italics, bolding, or similar means of making disclosures clear and conspicuous is preferable. They raised concerns about the prominent location standard and requested more flexibility in locating the table within an application or solicitation. Most industry commenters were supportive of efforts to decrease clutter and use more concise language, and these commenters supported the removal of the penalty rate explanation from the table. They also opposed the inclusion of additional rates and fees in the table. A few industry commenters objected to the Board's proposal to remove the penalty rate explanation from the table and suggested that the disclosure might be overlooked if it were outside the table.

Consumers were generally supportive of the proposal including the stricter clear and conspicuous standard. Consumers that commented generally favored including in one location all rates and fees along with any explanation of how the rates and fees are charged. In particular, they favored including in the table the rate and fee for balance transfers and the cash advance APR.

As discussed below, the Board is adopting the revisions substantially as proposed in order to effectuate the purposes of the 1988 Act and promote more effective disclosure of the costs and terms in credit and charge card applications and solicitations. Some revisions have been made for clarity or in response to commenters' requests for guidance.

Under the final rules, the APR for purchases must be in at least 18-point type and must appear under a separate heading from other APRs, such as the penalty rates. The disclosures must be “readily noticeable,” as well as in a “reasonably understandable form.” As to type size, disclosures in at least 12-point type would be deemed readily noticeable. Additional guidance is provided for electronic communications to clarify that card issuers comply with the rules if disclosures are provided in the required form even though the consumer may view the disclosures in a different form.

The final rule provides additional guidance on the current requirement that disclosures be prominently located but has been modified from the proposal to provide additional flexibility. Disclosures are sufficiently prominent, for example, if they are on the same page as an application or solicitation reply form. If located elsewhere, the disclosures still would be considered prominently located if the application or solicitation reply form contains a clear and conspicuous reference to the location of the disclosures.

As proposed, guidance is provided on the level of detail required or permitted in the table. Under existing rules, the table must include any increased penalty APR that will apply upon the occurrence of one or more specific events, such as a late payment or an extension of credit exceeding the credit limit. Card issuers must also provide a description of the specific events that can trigger an increase. To simplify the table, the existing commentary is revised so that only the penalty rates can appear inside the table; the explanatory information must appear outside the table.

Currently the regulation only requires disclosure of the APR for purchase transactions in the table. The final rule also requires disclosure of the APRs for cash advances and balance transfers in the table and the disclosure of balance transfer fees either in or outside the table, as is currently the case for cash advance, late payment, and over-the-limit fees.

Generally, updates to the Board's staff commentary are effective within 30 days of publication. Consistent with the requirements of section 105(d) of TILA, however, the Board typically provides an implementation period of six months or longer. During that period, compliance with the published update is optional so that creditors may adjust documents to accommodate TILA's disclosure requirements. Accordingly, compliance with the revised credit card provisions is mandatory as of October 1, 2001.

Section 226.5(a)(1) states the general rule that TILA disclosures for open-end credit plans must be made clearly and conspicuously. Existing comment 5(a)(1)-1 interprets this standard to require disclosures to be in a “reasonably understandable form.” Under the final rule, as proposed, this standard is more strictly construed for purposes of the disclosures required under § 226.5a for credit and charge card applications and solicitations. Accordingly, comment 5(a)(1)-1 is revised to reflect this fact, by including a cross-reference to the special rules for § 226.5a disclosures. See comments 5a(a)(2)-1 and -2.

Section 226.5(a)(2) n.9 provides that the APRs under § 226.5a need not be more conspicuous than other disclosures. Footnote 9 is revised by adding a cross-reference to reflect the special type-size rule under § 226.5a for purchases APRs. Comment 5(a)(2)-1 is also revised to make a technical correction.

Disclosures that are required by § 226.5a must be clear and conspicuous and prominently located on or with an application or solicitation or other applicable document. Certain of these disclosures also are required to be in a table format. As proposed, comment 5a(a)(2)-1 is added to establish a stricter standard for satisfying the “clear and conspicuous” standard with respect to credit or charge card application or solicitation disclosures. Comment 5a(a)(2)-2 provides additional interpretative guidance on the requirement that certain disclosures be prominently located. Because the interpretations differ somewhat from those currently provided, they are intended to apply prospectively.

Currently, disclosures meet the “clear and conspicuous” requirement if they are reasonably understandable. To ensure that consumers receive meaningful disclosures on a consistent basis, comment 5a(a)(2)-1 provides that disclosures are clear and conspicuous if they are both reasonably understandable and readily noticeable.

Industry commenters that opposed the revision cited a variety of reasons including the belief that a court might apply the stricter construction of the clear and conspicuous standard under § 226.5a to other sections of Regulation Z. Consumers and their representatives generally favored the stricter construction and thought the revisions would assist consumers in comparison-shopping for credit and charge cards by making disclosures more noticeable.

Many commenters representing financial institutions expressed a belief that the stricter construction of the “clear and conspicuous” standard is unnecessary and the same result could be achieved through more rigorous enforcement of the existing standard. These commenters generally objected to the proposal's use of particular type-size examples. Under the final rule, comment 5a(a)(2)-1 provides, as proposed, that as to type size, disclosures are deemed to be readily noticeable if they are in at least 12-point type. A number of commenters stated that using the example of 12-point type to satisfy the standard would have the effect of establishing a minimum type-size requirement. Accordingly, some commenters suggested that the final rule use 10-point type as the example of a conspicuous type size, or that the final rule includes additional language clarifying that some disclosures smaller than 12-point may also satisfy the rule. To address commenters concerns, the comment states that disclosures printed in less than 12-point type do not automatically violate the standard. Disclosures in less than 8-point type, however, would likely be too small to satisfy the standard.

Some commenters requested further guidance on whether the new “clear and conspicuous standard” would apply only to information required to be disclosed in a tabular format, or to all disclosures required under § 226.5a. In response to the comment received, comment 226.5a(a)(2)-1 provides that the stricter clear and conspicuous standard applies to all § 226.5a disclosures.

Comment 5a(a)(2)-2 addresses the requirement that certain disclosures be prominently located. Currently, the standard does not require disclosures to be located in any particular location. For example, card issuers may locate disclosures that are required to be in a tabular format on the reverse side of an application or on the last page of a multi-page solicitation. Consumers may see the promotional materials and fill out the application without being aware that there is additional cost information elsewhere following the application.

Under the proposal, the table would have been deemed to be prominently located, for example, if it appeared on the same page as the application or solicitation reply form, or on a separate insert with a reference to the insert on the application or reply form. Many commenters, including both consumers and some financial institution representatives suggested that card issuers might favor the use of inserts instead of locating the table on the application or reply form. These commenters were concerned that inserts might be overlooked by consumers and they urged that the Board grant flexibility to card issuers that cannot fit their disclosures on the same page as the application. Commenters also requested additional guidance. For example, some suggested that disclosures on the reverse side of a one-page application might be considered to be on the same page as the application. (They would not; each side would be considered a separate page.)

In response to commenters' concerns, comment 5(a)(2)-2 provides additional flexibility. Disclosures that do not appear on the same page as the application or solicitation reply form will also be considered prominently located if a clear and conspicuous reference to the location of the disclosures is on the application or solicitation reply form indicating that they contain additional information about rates, fees, and other costs, as applicable.

The revised comment clarifies that the tabular disclosures required under § 226.5a(b) must all appear on the same page. Disclosures required under § 226.5a(b)(8)-(11) that appear outside the table must start on the same page as the table but may continue on subsequent pages.

Electronic Disclosures —In September 1999, the Board published a proposal that would amend Regulation Z to authorize creditors to use electronic communication to deliver required disclosures. 64 FR 49722 (September 14, 1999). On June 30, 2000, the Electronic Signatures in Global and National Commerce Act was signed into law, which authorizes the use of electronic records to provide written disclosures to consumers. Pub. L. 106-229, 114 Stat. 464. That law is effective October 1, 2000.

The Board's proposal specifically requested comment on any guidance that may be needed when credit and charge card applications and solicitations are provided by electronic communication. The majority of commenters requested that the Board provide guidance in the final rule on the use of electronic disclosures for credit and charge card applications and solicitations. Some commenters requested clarification that electronically transmitting or posting the APR disclosures in the required type size is sufficient in light of the consumer's ability to alter the appearance of information received electronically. In response to commenters' concerns, comment 5a(a)(2)-1 indicates that if disclosures required by § 226.5a(b) are provided by electronic communication, they are judged for purposes of the clear and conspicuous standard based on the form in which they are provided even though they may be viewed by consumers in a different format.

Commenters also requested guidance on complying with the requirement that certain disclosures be “prominently located” when electronic media are used. This guidance has been provided in comment 5a(a)(2)-2. Electronic disclosures are deemed to be prominently located if they are posted on a web site and the application or solicitation reply form is linked to the disclosures in a manner that prevents the consumer from by-passing the disclosures before submitting the application or reply form, or they are located on the same page as an application or solicitation reply form that contains a clear and conspicuous reference to the location of the disclosures and indicates that they contain rate, fee, and other cost information as applicable.

Disclosure of Additional Rates and Fees —The table required under § 226.5a provides consumers with key cost information, grouped together in one place to facilitate consumers' use of the information for comparison-shopping. These disclosures are not intended to be as detailed as disclosures provided to consumers at account opening. At the time the 1988 Act was adopted, the primary focus was on cost disclosures for purchase transactions. Thus, under the current rules the APR and transaction fees for purchases must be disclosed in the table, but not the APR for cash advances.

Because the services and features offered with credit and charge cards have evolved in recent years, the disclosures required by the 1988 Act do not capture costs that are commonly assessed on such cards, such as the APR assessed on a balance transfer (which the card issuer may characterize as a cash advance). Accordingly, the Board solicited comment on whether consumers would be aided in comparison-shopping by having additional rates and fees disclosed in the table. In particular, commenters were asked to address whether the APR and transaction fee for balance transfers and the APR for cash advances should be included in the table.

Many of the consumers and consumer advocates supported the inclusion of additional rate and fee information. These commenters generally favored including the APR and transaction fee for balance transfers and the APR for cash advances. They noted that these card features are common and that disclosure of these terms aids consumers in more effective comparison-shopping. Industry commenters generally opposed the inclusion of new fees and rates. They believe that the application and solicitation disclosures are more likely to be effective if they are simpler. They are also concerned that adding new disclosures based on card issuer's current program features is likely to lead to further expansion of the disclosures in response to new trends in future industry card programs.

On balance, the Board believes that consumers seeking to comparison-shop would benefit from having the APR and transaction fee for balance transfers and the APR for cash advances provided in a consistent and uniform manner along with other key cost information. Balance transfer features have become common and cash advance features are an integral part of many card programs. Frequently, these features are prominently listed by card issuers in their promotional materials, sometimes as part of an introductory offer that expires after several months. Consumers' ability to understand the offered terms is likely to be enhanced by more uniform disclosure of these terms, particularly as consumers become familiar with the new format. Accordingly, § 226.5a(b)(1) has been revised to include the APR for cash advances and balance transfers in the tabular disclosures. Under the final rule, § 226.5a(b)(11) has also been added to provide that a balance transfer fee must also be disclosed, either in the table, or clearly or conspicuously elsewhere.

APR for Purchase Transactions —Section 226.5a(b)(1) requires card issuers to disclose in the table each periodic rate that may be used to compute the finance charge on an outstanding balance for purchases, expressed as an APR. The final rule is being adopted, as proposed, to require the APR for purchases to be disclosed in the table in at least 18-point type. This type-size requirement does not apply to temporary initial rates, that are lower than the APR that will apply after the temporary rate expires (to the extent such programs exist), or to penalty rates that result upon the occurrence of one or more specific events (such as a late payment or an extension of credit that exceeds the credit limit). See comment 5a(b)(1)-6. The APR for purchases must also appear with any introductory rate under a separate heading from other APRs, such as penalty rates, or rates for cash advances.

The Board proposed the use of this larger type size to highlight the significance of this information, particularly in light of the larger type sizes typically used by card issuers to promote introductory rates. Under existing rules, the APR information is often obscured due to the amount of other information provided in the table and the small type size used by some card issuers.

Consumers and consumer advocates generally believed that the type-size requirement is appropriate to ensure that the APR for purchases is clear and conspicuous. Industry commenters generally opposed the type-size requirement. Many of these commenters stated that the larger type size would place too much emphasis on the APR for purchases even though consumers may have differing opinions regarding which disclosures are most important. Many industry commenters suggested that highlighting the APR for purchases in this manner would diminish the effectiveness of other disclosures in the table.

Some financial institutions contend that an increase in type size will increase paper and production costs, although few institutions attempted to quantify the cost. One financial institution estimated that under the new rule its paper costs would increase 7% annually. Some credit unions expressed concern regarding increased costs; however, many indicated that the increased costs could be avoided if the final rule does not become effective for at least six months thereby, permitting them to use their existing stock of disclosures.

Overall, the benefits of requiring 18-point type in disclosing the APR for purchases seem to outweigh any potential adverse effects. Even though some consumers comparison-shop for credit and charge cards based on a variety of features, the APR for purchases remains one of the key features that consumers consider. Moreover, many card issuers use larger than 18-point type to promote introductory APRs and other features in their credit and charge card promotional materials. Also, to aid consumers in better understanding the rates being imposed on a card account, card issuers are encouraged to disclose, in close proximity with any introductory rate being promoted, the period of time that the rate is in effect, and the post-introductory APR for purchases.

Rules to Simplify the Table —Card issuers are required to disclose “penalty rates” in the table, along with a description of the specific events that can trigger a rate increase and any index or margin used to determine the penalty rate. Under existing comment 5a(b)(1)-7, card issuers have the option of including this information inside the table or elsewhere. To simplify the table, the comment has been revised to provide that only the penalty rate should appear inside the table; the explanatory information must appear outside the table. Card issuers must use an asterisk or other means to direct the consumer to the additional information.

Most commenters believed that removing the explanatory information from the table would decrease clutter and promote the use of concise language in the table. A few consumers, however, stated that the significant impact of penalty rates justifies leaving the explanation in the table to prevent it from being overlooked. The Board has determined that consumers are more likely to notice the penalty APRs if the table is uncluttered by removing the explanatory information. Moreover, the stricter interpretation of the “clear and conspicuous” standard should ensure that the explanatory information appears outside in a readily noticeable form.

Revisions to comment App. G and H-1 are adopted, as proposed, to clarify that there are special rules for disclosures required under § 226.5a for applications and solicitations for credit and charge cards.

The Board provides model forms to aid compliance with the disclosure requirements of § 226.5a(b). See Appendix G-10(A)-(C). Model form G-10(A) is revised and model form G-10(B) has been removed as unnecessary. A new sample form G-10(B) is added to illustrate an account with an introductory rate and a penalty rate. The forms also reflect the inclusion of the cash advance APR, balance transfer APR, and the balance transfer fee. Also comment G-5 is revised to clarify that there are format and sequence requirements for certain § 226.5a disclosures.

In accordance with section 3(a) of the Regulatory Flexibility Act, the Board has reviewed the amendments to Regulation Z. The amendments require creditors to use a specific type size for the APR for purchases, to add the APR and fee for balance transfers and the APR for cash advances; to provide supplemental information about penalty rates outside the table; and to locate the table on the same page as the application or solicitation reply form, or elsewhere with a reference in the application or reply form to the location and content of the disclosures.

Some smaller financial institutions, particularly credit unions, expressed concerns that the need to revise disclosures to comply would increase costs; however, costs could be minimized by delaying the mandatory compliance date for at least six months thereby permitting them to utilize existing stocks of disclosures. Since the mandatory compliance date is October 1, 2001, the amendments do not have any significant impact on small entities beyond these initial revisions.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506; 5 CFR 1320 Appendix A.1), the Board reviewed the rule under the authority delegated to the Board by the Office of Management and Budget. The Federal Reserve may not conduct or sponsor, and an organization is not required to respond to, this information collection unless it displays a currently valid OMB control number. The OMB control number is 7100-0199.

The collection of information that is revised by this rulemaking is found in 12 CFR part 226 and in Appendices F, G, H, J, K, and L. This information is mandatory (15 U.S.C. 1601 et seq. ) to evidence compliance with the requirements of Regulation Z and the Truth in Lending Act (TILA). The respondents/recordkeepers are for-profit financial institutions, including small businesses. Institutions are required to retain records for twenty-four months. This regulation applies to all types of creditors, not just state member banks; however, under Paperwork Reduction Act regulations, the Federal Reserve accounts for the burden of the paperwork associated with the regulation only for state member banks. Other agencies account for the paperwork burden on their respective constituencies under this regulation.

The revisions require creditors to revise disclosures for credit card solicitations and applications by: (1) Requiring an 18-point type-size for the APR for purchase transactions, (2) requiring creditors to provide supplemental information about penalty rates outside the table, (3) requiring disclosure of the APR and fee for balance transfers and cash advance APR, and (4) requiring that such table be located on the same page as the application or solicitation reply form or elsewhere with a reference to the location on the application or reply form. Although the final rule adds these requirements, it is expected that these revisions would not significantly increase the paperwork burden of creditors. With respect to state member banks, it is estimated that there are 988 respondent/recordkeepers and an average frequency of 136,294 responses per respondent each year. Therefore, the current amount of annual burden is estimated to be 1,863,754 hours. Because these revisions modify preexisting tables, there is estimated to be no additional annual cost burden and no capital or start-up cost.

Because the records would be maintained at state member banks and the notices are not provided to the Federal Reserve, no issue of confidentiality under the Freedom of Information Act arises; however, any information obtained by the Federal Reserve may be protected from disclosure under exemptions (b)(4), (6), and (8) of the Freedom of Information Act (5 U.S.C. 522 (b)(4), (6) and (8)). The disclosures and information about error allegations are confidential between creditors and the customer.

The Federal Reserve has a continuing interest in the public's opinion of our collections of information. At any time, comments regarding the burden estimates, or any other aspect of this collection of information, including suggestions for reducing the burden estimate, may be sent to: Secretary, Board of Governors of the Federal Reserve System, 20th and C Streets, N.W., Washington, DC 20551; and to the Office of Management and Budget, Paperwork Reduction Project (7100-0199), Washington, DC 20503.

On October 7, 1999, the Bureau of Export Administration (BXA) published a final rule amending the Export Administration Regulations (EAR) to implement the October 1998 Australia Group agreement to amend controls on toxic gas monitoring systems and to amend the CCL to authorize, without a license, exports of medical products containing controlled biological toxins that are developed, packaged and sold for medical treatment.

The Australia Group (AG), a multilateral forum that coordinates export controls to curtail the proliferation of chemical and biological weapons, held its annual consultations in Paris, October 4-8, 1999. The 30 AG participating countries agreed to maintain export controls on a list of chemicals, biological agents, relevant equipment and technology that could be used in the production of chemical or biological weapons. The AG reviews items on its control list periodically to enhance the effectiveness and achieve greater harmonization of participating governments' national controls.

At the October 1999 Australia Group consultations, participants agreed to further revise the control list entry for toxic gas monitoring systems to clarify the scope of controls. To implement this agreement, this final rule amends the Commerce Control List (CCL) of the Export Administration Regulations (EAR) by revising Export Control Classification Number (ECCN) 2B351. Specifically, this rule clarifies that the control of toxic gas monitoring systems under ECCN 2B351 applies only to such systems that operate on line without any requirement for human intervention. The AG agreed that the intent of this control is to control systems capable of detecting toxic gases in environments such as a chemical plant rather than batch-mode operation equipment that is normally used in a laboratory. While not changing the scope of the control in any way, this rule also clarifies the description of cross-flow filtration equipment in ECCN 2B352 by describing it as cross (tangential) flow filtration equipment. In an expansion of controls, the Australia Group agreed to add titanium carbide and silicon carbide to the list of materials describing heat exchangers subject to control in ECCN 2B350.

The Department of Commerce also maintains controls on exports of biological agents that could be used in the production of biological weapons. These materials require a license under ECCN 1C351 for export and reexport for CB (chemical and biological weapons) reasons to all destinations, except Canada. These controls are implemented in accordance with the export control provisions of the Australia Group. Note that two biological agents, ricin and saxitoxin, classified as ECCN 1C351.d.5 and .d.6, respectively, are Schedule 1 chemicals under the Chemical Weapons Convention and are also controlled for CW reasons to all destinations, including Canada.

As agreed by the AG, medical products that contain the AG-controlled botulinum toxin that are pharmaceutical formulations designed for human administration in the treatment of medical conditions have broad medical applications while posing no significant proliferation concerns. Such products are controlled under ECCN 1C991 and may be exported and reexported without a license to all destinations and entities, except terrorist supporting countries (Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria) and Serbia, and except as provided in Parts 736 and 744 of the EAR. This further liberalization of licensing requirements for the botulinum toxin does not apply if the botulinum toxin is to be exported in any other configuration, including bulk shipments, or for any other end-uses, in which case it is still controlled under ECCN 1C351.

In addition, this final rule further amends ECCN 1C991 to clarify the criteria for defining an item containing botulinum toxin as a medical product when approved by the Food and Drug Administration (FDA) for distribution in interstate commerce as a medical product. Specifically, the medical product must be: (1) Pharmaceutical formulations designed for human administration in the treatment of medical conditions; (2) prepackaged for distribution as medical products; and, (3) approved by the Food and Drug Administration to be marketed as medical products.

Further, this rule removes controls on certain diagnostic and food testing kits that contain toxins controlled by the AG. Specifically, this final rule amends ECCN 1C991 to include diagnostic and food testing kits containing AG-controlled toxins controlled under ECCN 1C351. Such testing kits may be exported and reexported without a license to all destinations and entities, except to terrorist supporting countries and Serbia, and except as provided in Parts 736 and 744 of the EAR, when the kits are specifically developed, packaged, and marketed for diagnostic or public health purposes. Diagnostic and food testing kits containing CW-controlled toxins continue to be controlled under ECCN 1C351 to all destinations, including Canada.

This rule clarifies that the scope of AG-controls on saxitoxin under 1C351.d.6 applies only to saxitoxin and not the entire family of paralytic shellfish poisons ( e.g. , neosaxitoxin) which, other than saxitoxin, are classified under EAR99. This rule also clarifies the forms of saxitoxin and ricin that are controlled for CW reasons under ECCN 1C351.

Finally, the AG agreed to the development of a rounding rule for mixtures that contain trace and unintended quantities of AG-controlled chemicals that are also on CWC Schedule 1 listed in ECCN 1C350. The United States is providing a “round to zero” rule for Schedule 1 chemicals similar to that agreed by the AG. This rule, currently set forth in section 712.1 of the Chemical Weapons Convention Regulations, is now added to the note under 1C350 on mixtures. The licensing requirements do not apply to mixtures containing less than 0.5% aggregate quantities of Schedule 1 chemicals as unavoidable by-products or impurities, and the Schedule 1 chemicals are not intentionally produced or added.

Exporters are reminded that although license requirements have been removed for shipments of the medical products and test kits for CB reasons as described above, these items continue to require a license under 1C991 for export or reexport to terrorist supporting and embargoed destinations and entities. Exporters may also need to consult with the Department of the Treasury's Office of Foreign Assets Control, which administers economic sanctions against certain countries and entities, including the Taliban controlled areas of Afghanistan.

Although the EAA expired on August 20, 1994, the President invoked the International Emergency Economic Powers Act and continued in effect the Export Administration Regulations and, to the extent permitted by law, the provisions of the EAA in Executive Order 12924 of August 19, 1994, as extended by the President's notices of August 15, 1995 (60 FR 42767), August 14, 1996 (61 FR 42527), August 13, 1997 (62 FR 43629), August 13, 1998 (63 FR 44121), August 10, 1999 (64 FR 44101) and August 8, 2000 (65 FR 48347).

1. This final rule has been determined to be not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid Office of Management and Budget Control Number. This rule involves a collection of information subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq. ). This collection has been approved by the Office of Management and Budget under control numbers 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 45 minutes for a manual submission and 40 minutes for an electronic submission.

3. This rule does not contain policies with Federalism implications sufficient to warrant preparation of a Federalism assessment under Executive Order 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable. Therefore, this regulation is issued in final form. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. Comments should be submitted to Kirsten Mortimer, Office of Exporter Services, Bureau of Export Administration, Department of Commerce, P.O. Box 273, Washington, DC 20044.

CW applies to 1C350.a.2, a.3, a.5, a.6, a.7, a.8, a.10, a.11, a.12, a.13, a.15, a.16, a.17, a.20, a.21, a.22, a.23, a.24, a.28, a.29, a.30, a.31, a.32, a.33, a.35, a.37, a.41, a.47, a.48, a.49, a.50, a.51, a.53, or a.54. For 1C350.a.20, a.24 and a.31, a license is required for CW reasons for all destinations, including Canada. For all other chemicals controlled for CW reasons, a license is a required for export to countries not listed in Supplement No. 2 to part 745, except for Schedule 3 chemicals which do not require a license for CW reasons if an End-Use Certificate has been obtained from the government of the importing country. See § 742.18 of the EAR. Also, see § 745.2 of the EAR for End-Use Certificate requirements. The Commerce Country Chart is not designed to determine licensing requirements for items controlled for CW reasons.

License Requirement Notes:

1. SAMPLE SHIPMENTS: Certain sample shipments of chemicals controlled under ECCN 1C350 may be made without a license, as provided by the following:

a. Chemicals Not Eligible: No CWC Schedule 1 chemical is eligible for sample shipment without a license. Therefore, the following chemicals are not eligible for sample shipments: 0-Ethyl-2-diisopropylaminoethyl methylphosphonite (QL) (C.A.S. #57856-11-8), Ethylphosphonyl difluoride (C.A.S. #753-98-0), and Methylphosphonyl difluoride (C.A.S. #676-99-3).

b. Countries Not Eligible: The following countries are not eligible to receive any sample shipments: Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria.

c. Sample Shipments: A license is not required for sample shipments when the cumulative total of these shipments does not exceed a 55-gallon container or 200 kg of each chemical to any one consignee per calendar year. Multiple sample shipments, in any quantity, not exceeding the totals indicated in this paragraph may be exported without a license, in accordance with the provisions of this Note 1. A consignee that receives a sample shipment under this exclusion may not resell, transfer, or reexport the sample shipment, but may use the sample shipment for any other legal purpose unrelated to chemical weapons. However, a sample shipment exported and received under this exclusion remains subject to all General Prohibitions including the end-use restriction described in § 744.4 of the EAR. Sample shipments of chemicals included in CWC Schedule 2 and controlled for CW reasons to non-CWC States Parties (destinations not listed in Supplement No. 2 to part 745 of the EAR) may not be made without a license. Sample shipments of chemicals listed in Schedule 3 and controlled for CW reasons to non-States Parties may not be made without first obtaining an End-Use Certificate, as described in § 745.2 of the EAR. If no End-Use Certificate is obtained pursuant to § 745.2 of the EAR, a license is required for sample shipments to non- CWC States Parties of Schedule 3 chemicals controlled under ECCN 1C350 for CW reasons.

d. The exporter is required to submit a quarterly written report for shipments of samples made under this Note 1. The report must be on company letterhead stationery (titled “Report of Sample Shipments of Chemical Precursors” at the top of the first page) and identify the chemical(s), Chemical Abstract Service Registry (C.A.S.) number(s), quantity(ies), the ultimate consignee's name and address, and the date exported. The report must be sent to the U.S. Department of Commerce, Bureau of Export Administration, P.O. Box 273, Washington, DC 20044, Attn: “Report of Sample Shipments of Chemical Precursors”.

2. MIXTURES: Mixtures controlled by this entry that contain certain concentrations of precursor and intermediate chemicals are subject to the following licensing requirements:

a. A license is required, regardless of the concentrations in the mixture, for the following chemicals: 0-Ethyl-2-diisopropylaminoethyl methylphosphonite (QL) (C.A.S.#57856-11-8), Ethylphosphonyl difluoride (C.A.S.#753-98-0) and Methylphosphonyl difluoride (C.A.S.#676-99-3), unless the mixture contains less than 0.5% aggregate quantities of Schedule 1 chemicals as unavoidable by-products or impurities, and the Schedule 1 chemicals are not intentionally produced or added.

b. A license is required when at least one of the following chemicals constitutes more than 10 percent of the weight of the mixture: Arsenic trichloride (C.A.S.#7784-34-1), Benzilic acid (C.A.S.#76-93-7), Diethyl ethylphosphonate (C.A.S.#78-38-6), Diethyl methylphosphonite (C.A.S.#15715-41-0),Diethyl-N,N-dimethylphosphoroamidate (C.A.S.#2404-03-7), N,N-Diisopropyl-beta-aminoethane thiol (C.A.S.#5842-07-9), N,N-Diisopropyl-2-aminoethyl chloride hydrochloride (C.A.S.#4261-68-1), N,N-Diisopropyl-beta-aminoethanol (C.A.S.#96-80-0), N,N-Diisopropyl-beta-aminoethyl chloride (C.A.S.#96-79-7), Dimethyl ethylphosphonate (C.A.S.#6163-75-3), Dimethyl methylphosphonate (C.A.S.#756-79-6), Ethylphosphonous dichloride [Ethylphosphinyl dichloride] (C.A.S.#1498-40-4), Ethylphosphonus difluoride [Ethylphosphinyl difluoride] (C.A.S.#430-78-4), Ethylphosphonyl dichloride (C.A.S.#1066-50-8), Methylphosphonous dichloride [Methylphosphinyl dichloride] (C.A.S.#676-83-5), Methylphosphonous difluoride [Methylphosphinyl difluoride] (C.A.S.#753-59-3), Methylphosphonyl dichloride (C.A.S.#676-97-1), Pinacolyl alcohol (C.A.S.#464-07-3), 3-Quinuclidinol (C.A.S.#1619-34-7), and Thiodiglycol (C.A.S.#111-48-8) (Related ECCN: 1C995);

c. A license is required when at least one of all other chemicals in the List of Items Controlled under ECCN 1C350 constitutes more than 25 percent of the weight of the mixture (related ECCN: 1C995); and

d. A license is not required under this entry for mixtures when the controlled chemical is a normal ingredient in consumer goods packaged for retail sale for personal use. Such consumer goods are classified as EAR99.

Note to Mixtures: Calculation of concentrations of AG-controlled chemicals:

a. Exclusion. No chemical may be added to the mixture (solution) for the sole purpose of circumventing the Export Administration Regulations;

b. Absolute Weight Calculation. When calculating the percentage, by weight, of components in a chemical mixture, include all components of the mixture, including those that act as solvents;

c. Example.

In this example, a license is required because a chemical listed in paragraph b. of Note 2 constitutes more than 10 percent of the weight of the mixture.

3. COMPOUNDS. A license is not required under this entry for chemical compounds created with any chemicals identified in this entry, unless those compounds are also identified in this entry.

Technical Notes: 1. For purposes of this entry, a “mixture” is defined as a solid, liquid or gaseous product made up of two or more components that do not react together under normal storage conditions.

2. The scope of this control applicable to Hydrogen Fluoride (Item 25 in List of Items Controlled) includes its liquid, gaseous, and aqueous phases, and hydrates.

In the Federal Register of January 6, 1993, FDA issued final rules announcing its decision not to authorize the use of health claims for four substance-disease relationships in the labeling of conventional foods. (See 58 FR 2537 (dietary fiber and cancer); 58 FR 2622 (antioxidant vitamins and cancer); 58 FR 2682 (omega-3 fatty acids and coronary heart disease); and 58 FR 2606 (folic acid  1 and neural tube defects 2 )). Soon after, FDA proposed in the Federal Register of October 14, 1993 (58 FR 53296), not to authorize use of three of the four claims in the labeling of dietary supplements. In October 1993, after further review of evidence on the relationship between folate and reduced risk of neural tube defects, FDA proposed to authorize a health claim for this relationship (58 FR 53254, October 14, 1993); however, the agency proposed not to allow such claims to include a statement that folate from one source is more effective in reducing the risk of neural tube defects than folate from another source. Both proposals became final by operation of law on December 31, 1993. (See 59 FR 395, January 4, 1994 (dietary fiber and cancer, antioxidant vitamins and cancer, and omega-3 fatty acids and coronary heart disease); 59 FR 433, January 4, 1994 (folate and neural tube defects).) FDA's decisions not to authorize these four claims are codified in § 101.71(a) (21 CFR 101.71(a)) (dietary fiber and cancer); § 101.71(c) (antioxidant vitamins and cancer); § 101.71(e) (omega-3 fatty acids and coronary heart disease); and § 101.79(c)(2)(i)(G) (21 CFR 101.79(c)(2)(i)(G)) (claims comparing effectiveness of folate from different sources).

Several dietary supplement marketers and nonprofit organizations that had submitted comments during FDA's health claims rulemakings filed suit in Federal district court on constitutional and statutory grounds seeking, among other things, authorization to make the following health claims for use in the labeling of dietary supplements: “Consumption of fiber may reduce the risk of colorectal cancer,” “Consumption of antioxidant vitamins may reduce the risk of certain kinds of cancer,” “Consumption of omega-3 fatty acids may reduce the risk of coronary heart disease,” and “0.8 mg of folic acid in a dietary supplement is more effective in reducing the risk of neural tube defects than a lower amount in foods in common form.” The district court ruled for FDA in all respects ( Pearson v. Shalala , 14 F. Supp. 2d 10 (D.D.C. 1998)); however, the U.S. Court of Appeals for the D.C. Circuit reversed the district court's decision. The court of appeals held the regulations codifying FDA's decision not to authorize the four health claims invalid and instructed FDA to reconsider the four health claims ( Pearson v. Shalala , 164 F.3d 650 (D.C. Cir. 1999)).

In the Nutrition Labeling and Education Act of 1990, Congress made health claims for dietary supplements subject to a procedure and standard to be established by FDA (see section 403(r)(5)(D) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 343(r)(5)(D)). FDA adopted the same procedure for health claims in dietary supplement labeling that Congress had prescribed for health claims in the labeling of conventional foods (see section 403(r)(3) and (r)(4) of the act). This procedure requires the evidence supporting a health claim to be presented to FDA for review before the claim may appear in labeling. Unless and until FDA adopts a regulation authorizing the claim, a dietary supplement bearing the claim is subject to regulatory action as a misbranded food (see section 403(r)(1)(B) of the act, a misbranded drug (see section 502(f)(1) of the act (21 U.S.C. 352(f)(1)), and as an unapproved new drug (see section 505(a) of the act (21 U.S.C. 355(a)).

Recently, the U.S. District Court for the District of Columbia denied the Pearson plaintiffs' motion for a preliminary injunction granting them immediate permission to make the four health claims that FDA is reconsidering. In their motion, the plaintiffs argued that because the court of appeals had invalidated the regulations codifying FDA's decision not to authorize the four claims, the claims should be permitted in dietary supplement labeling if accompanied by disclaimers suggested by the court of appeals. The district court rejected this argument. The court's decision said in part that a preliminary injunction was not in order because the plaintiffs may not bypass FDA's pre-clearance process for health claims. “Plaintiffs' fatal assumption is that the Court of Appeals' invalidation of the regulations allows them to now make their health claims with disclaimers, without any further pre-clearance by FDA. It does not. Invalidation of the regulations merely puts plaintiffs back at square one, which means they must again go through the pre-clearance process * * *.” ( Pearson v. Shalala , No. Civ. A. 95-1865, 2000 WL 767584, at *2 (D.D.C. May 24, 2000)).

Thus, while FDA is revoking the regulations codifying its original decision not to authorize the four health claims that were challenged in Pearson , such claims still may not be used in labeling pending reconsideration of these claims by FDA. FDA expects to complete its reconsideration of the four claims and issue a decision on each claim by October 10, 2000.

The Administrative Procedure Act and FDA regulations provide that an agency may dispense with notice-and-comment rulemaking procedures when the agency for good cause finds that such procedures are impracticable, unnecessary, or contrary to the public interest (5 U.S.C. 553(b)(3)(B); § 10.40(e)(1) (21 CFR 10.40(e)(1))). Because this final rule is being issued in response to a court order, FDA finds that notice and comment are unnecessary. In addition, the Commissioner of Food and Drugs finds good cause under 5 U.S.C. 553(d)(3) and § 10.40(c)(4)(ii) to make this final rule effective upon publication.

On June 24, 1996, The Department of Health and Human Services (HHS) and the Department of the Interior (DOI) issued joint regulations authorized by section 107 of the Indian Self-Determination and Education Assistance Act (ISDA), Public Law 93-638, as amended, 25 U.S.C. 450k. These joint regulations, published in the Federal Register on June 24, 1996, and codified at 25 CFR part 900, replaced Department regulations codified at 42 CFR part 36, subpart I, “Contracts under the ISDA”; 48 CFR section 352.280-4, “Contracts awarded under the ISDA”; 48 CFR section 352.380-4, “Contracts awarded under the ISDA”; and 48 CFR subpart 380.4, “Contracts awarded under the ISDA”; because they are no longer necessary for the Administration of the IHS Program.

Section 107(b) of the ISDA provides in pertinent part that “the secretary is authorized to repeal any regulation inconsistent with the provisions of this act.” The HHS has proposed at 64 FR 1344 to revise 48 CFR, Chapter 3, to streamline and simplify its acquisition regulations (HHSRA) in accordance with the directions of the National Performance Review. In so doing, the sections of 48 CFR liminated by the joint rule (25 CFR part 900) issued by the HHS and the DOI would be removed. Therefore, the IHS proposed at 65 FR 4797 the elimination of only Subpart I of 42 CFR part 36. No comments were received in response to the proposed rule. The proposed rule is converted to a final rule without change.

This rule is not a significant regulatory action under Executive Order 12866 and has not been reviewed by the Office of Management and Budget. It removes obsolete regulations.

The HHS certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act since it only removes obsolete regulations.

The Department has determined that this rule does not have significant Federalism effects because it pertains solely to Federal-Tribal relations and will not interfere with the roles, rights, and responsibilities of States.

This regulation contains no information collection requirement that would require notification of the Office of Management and Budget.

The authority to eliminate these regulations is 42 U.S.C. 2003 and 25 U.S.C. 13.

On April 7, 2000, we published in the Federal Register (65 FR 18434), a final rule with comment period entitled “Prospective Payment System for Hospital Outpatient Services.” Among the regulatory provisions included were new §§ 413.24(d)(6) and 413.65 and revisions to §§ 489.24, 498.2, and 498.3. These regulations established requirements for facilities or organizations that seek provider-based status (departments, provider-based entities, satellite facilities, and remote locations of hospitals). The effective date of the provider-based regulations, as stated in the April 2000 rule, is October 10, 2000.

New § 413.65(i) states that we will recover any overpayments resulting from inappropriate treatment of a facility or organization as provided-based. However, this provision states that no recovery will be made for any period prior to October 10, 2000, if the management of the facility or organization made a “good faith” effort to operate it as provided-based (as described in § 413.65(i)(3)). The reference to October 10, 2000 was included to limit the “good faith” exception to periods before the effective date of the new requirements.

Based on the following concerns, we have decided to delay the effective date of the provider-based portions of the April 2000 final rule until January 10, 2001, applicable for provider cost reporting periods beginning on or after January 10, 2001. For example, a provider whose cost reporting periods begins on April 1 will not be affected by these provider-based regulations until its cost reporting period beginning on April 1, 2001.

To provide for smooth implementation of the provider-based regulations, we must clarify a number of administrative, procedural, and technical issues and provide our regional offices, which are charged with responsibility for making provider-based determinations, and hospitals with further training and guidance. We have completed a variety of training and informational activities, developed responses to “Frequently Asked Questions,” and held numerous meetings with individual providers and provider associations in order to communicate our policies and plans for implementing the new regulations. In the course of these activities, the need for additional guidance interpreting the regulations and addressing procedural and administrative concerns has become apparent. Given the time needed to complete and disseminate this material, we have concluded that implementation of the new provider-based regulations on October 10, 2000 would be imprudent.

A delay in the effective date of the provider-based regulations will allow for dissemination of the additional material described above, and will give hospitals and other providers additional time to fully assess the potential impact of both the new hospital outpatient prospective payment system and the new provider-based regulations on their facilities and organizations. A delay in the effective date will also allow the industry more time to prepare to comply with the new regulations, and that in turn will help reduce the number of errors or other problems that might occur as a result of transition to the new rules. The phase-in of implementation over 12-months, rather than a single date, will allow for a more manageable distribution of work for the regional offices, fiscal intermediaries, and hospitals. (As noted earlier, implementation by cost reporting periods means that a provider with a cost reporting period starting after January 10, 2001, would not be affected by the new regulations until the start of its next cost reporting period. Thus, a provider with an April 1 cost period would not be affected until April 1, 20001, a provider with a July 1 cost period would not be affected until July 1, 20001, and so on.) We expect to issue further clarification of administrative, procedural, and technical issues as soon as possible.

To provide for uniform and consistent application of the “good faith” exception to periods before the revised date, we are revising § 413.65(i)(2) to state that the exception will be available only for main provider cost reporting periods beginning on or after January 10, 2001 or, in the case of a facility or organization paid as a provider-based entity, for that entity's cost reporting periods beginning on or after January 10, 2001.

In October 2000, we plan to host a town hall meeting to discuss specific aspects of the provider-based regulations at our headquarters in Baltimore, Maryland. The subjects of this meeting will be the ways in which a facility or organization can demonstrate that it serves the same patient population as the main provider (§ 413.65(d)(7)(i)), and the applicability of provisions on management contracts (§ 413.65(f)) to certain on-campus hospital departments. We will make further details regarding the town hall meeting available on our website, www.hcfa.gov.

In the April 2000 final rule, we discussed the impact of the provider-based regulations on providers and beneficiaries. Because we are delaying the implementation of the final rule, the current provider-based criteria, as stated in HCFA program manuals, will remain in effect for an additional period of time. We believe that any impact on small entities would be positive because the delay in effective date will allow more time for them to come into compliance with the new regulations, and also permit the new regulations to be implemented in a more clear and consistent manner.

In FR Doc. 00-8215 of April 7, 2000 (65 FR 18434), make the following correction:

This is a synopsis of the Commission's Report and Order, MM Docket No. 00-103, adopted September 29, 2000, and released October 2, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

This is a synopsis of the Commission's Report and Order, MM Docket No. 00-98, adopted September 29, 2000, and released October 2, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, S.W., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036.

This interim rule amends the EPA Acquisition Regulation (EPAAR) (48 CFR Chapter 15) to publish for public comment EPA contract clauses which have not previously undergone formal Agency rulemaking subject to public review and comment because of the necessity of complying with FAR policies and procedures on a timely basis. As a result of recent procurement reform and streamlining initiatives, EPA has undertaken an extensive review of its procurement regulations. As part of this effort, EPA identified a number of clauses it has regularly used in its solicitations and contracts which had not previously undergone formal Agency rulemaking subject to public review and comment and which had not been incorporated into the EPAAR. This rulemaking action is to incorporate these existing EPA clauses into the EPAAR. EPA does not anticipate any adverse comments because, as stated above, these clauses have been regularly used in EPA solicitations and contracts for some time now without any objections or questions raised by entities responding to EPA procurements and/or contracting with the Agency.

This interim rule is not a significant regulatory action for the purposes of Executive Order 12866; therefore, no review is required by the Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB).

The information collection requirement in 1552.245-73, Government Property, is covered by OMB clearance number 9000-0075. The Paperwork Reduction Act does not apply to any other clause herein because this interim rule does not contain any new information collection requirements that require the approval of OMB under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq. ).

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impact of today's rule on small entities, small entity is defined as: (1) A small business that meets the definition of a small business found in the Small Business Act and codified at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's interim rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the proposed rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. This interim rule merely incorporates existing EPA solicitation and contract provisions into the EPAAR and will have no adverse impact on small entities. The requirements under this interim rule impose no additional reporting, record-keeping, or compliance costs on small entities.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess their regulatory actions on State, local, and Tribal governments, and the private sector. This interim rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in one year. Any private sector costs for this action relate to paperwork requirements and associated expenditures that are far below the level established for UMRA applicability. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.

Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be economically significant as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it is not an economically significant rule as defined by Executive Order 12866, and because it does not involve decisions on environmental health or safety risks.

Executive Order 13132 entitled, “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects 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.”

Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law, unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This interim rule does not have federalism implications. It will not have substantial direct effects 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, as specified in Executive Order 13132. This interim rule merely incorporates existing EPA solicitation and contract provisions into the EPAAR. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian Tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by Tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the OMB, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected Tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian Tribal government “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

Today's rule does not significantly or uniquely affect the communities of Indian Tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note), directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , materials specifications, test methods, sampling procedures phaphaand business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This rule does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rules report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Federal Acquisition Circular (FAC) 97-19 replaced the Standard Industrial Classification (SIC) system with the North American Industry Classification System (NAICS). Additionally, FAC 97-19 amended the title to section 7.107, revised subpart 11.5, and amended section 43.205. This final rule amends the NASA FAR Supplement (NFS) to conform to these changes. Changes unrelated to FAC 97-19 are made to: update references to internal documents; revise the dollar threshold for use of Government bills of lading at 1852.247-73; revise the instructions for amending the clause at 1852.242-70 when its Alternate II is used; and make a technical correction at 1819.202.

NASA certifies that this final rule does not have a significant economic impact on a substantial number of small business entities within the meaning of the Regulatory Flexibility Act (5 U.S.C. 601, et seq. ), because it does not impose new requirements on offerors or contractors.

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

In 1991, Subpart 1837.70, Acquisition of Training, was added to the NFS. Section 1837.7000, Acquisition of off-the-shelf training courses, provided that the Government Employees Training Act of 1958, 5 U.S.C. 4101 et seq., could be used as the authority for acquisition of “non-Governmental off-the-shelf training courses which are available to the public.” Subpart 1837.7001, Acquisition of new training courses, provided that acquisition of new training courses “developed to fill a specific NASA need” must be conducted in accordance with the FAR. This subpart is being removed because it has caused confusion within NASA about the relevance of the FAR to training service procurement.

A proposed rule was published in the Federal Register at 65 FR 43730, dated July 14, 2000. No comments were received, and this final rule adopts the proposed rule without change.

NASA certifies that this rule will not have a significant economic impact on a substantial number of small business entities within the meaning of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) because the deletion of this subpart will not alter the manner in which NASA is required to acquire training.

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

The Alameda whipsnake is a slender, fast-moving, diurnal snake with a broad head, large eyes, and slender neck. Alameda whipsnakes range from 91 to 122 centimeters (3 to 4 feet) in length. The dorsal surface is sooty black in color with a distinct yellow-orange stripe down each side. The forward portion of the bottom surface is orange-rufous colored, the midsection is cream colored, and the rear portion and tail are pinkish. The adult Alameda whipsnake virtually lacks black spotting on the bottom surface of the head and neck. Juveniles may show very sparse or weak black spots. Another common name for the Alameda whipsnake is the “Alameda striped racer” (Riemer 1954, Jennings 1983, Stebbins 1985).

The Alameda whipsnake is one of two subspecies of the California whipsnake ( Masticophis lateralis ). The chaparral whipsnake ( Masticophis lateralis lateralis ) is distributed from northern California, west of the Sierran crest and desert, to central Baja California. The Alameda whipsnake is restricted to a small portion of this range, primarily the inner Coast Range in western and central Contra Costa and Alameda Counties.

The distribution in California, of both subspecies, coincides closely with chaparral (Jennings 1983, Stebbins 1985). Recent telemetry data indicate that, although home ranges of Alameda whipsnakes are centered on shrub communities, whipsnakes frequently venture into adjacent habitats, including grassland, oak savanna, and occasionally oak-bay woodland. Most telemetry locations are within 50 meters (m) (170 feet (ft)) of scrub habitat, but distances of greater than 150 m (500 ft) occur (Swaim 1994). Initial data indicate that adjacent habitats may play a crucial role in certain life history and physiological needs of the Alameda whipsnake, but the full extent has yet to be determined. Telemetry data indicate that whipsnakes remain in grasslands for periods ranging from a few hours to several weeks at a time. Grassland habitats are used by male whipsnakes most extensively during the mating season in spring. Female whipsnakes use grassland areas most extensively after mating, possibly in their search for suitable egg-laying sites (Swaim 1994).

Rock outcrops can be an important feature of Alameda whipsnake habitat because they provide retreat opportunities for whipsnakes and support lizard populations. Lizards, especially the western fence lizard ( Sceloporus occidentalis ), appear to be the most important prey item of whipsnakes (Stebbins 1985; Swaim 1994; Harry Green, Museum of Vertebrate Zoology, U.C. Berkeley, pers. comm. 1998), although other prey items are taken, including skinks, frogs, snakes, and birds (Stebbins 1985, Swaim 1994). Most radio telemetry locations for whipsnakes were within the distribution of major rock outcroppings and talus (a sloping mass of rock debris at the base of a cliff) (Swaim 1994).

Alameda whipsnakes have been found in association with a variety of shrub communities including diablan sage scrub, coyote bush scrub, and chamise chaparral (Swaim 1994), also classified as coastal scrub, mixed chaparral, and chamise-redshank chaparral (Mayer and Laudenslayer 1988). However, the type of vegetation may have less to do with preference by the whipsnake than the extent of the canopy, slope exposure, the availability of retreats such as rock outcrops and rodent burrows, and prey species composition and abundance (Swaim 1994; K. Swaim, Swaim Biological Consulting, pers. comm. 1999). Alameda whipsnakes have been sighted or found dead a significant distance from the nearest shrub community (K. Swaim, pers. comm. 1999). The reasons for such movements are unknown.

Initial studies indicated that Alameda whipsnakes occurred where the canopy was open (less than 75 percent of the total area within the scrub or chaparral community was covered by shrub crown) or partially open (between 75 and 90 percent of the total area was covered with shrub crown), and only seldom did whipsnakes occur in closed canopy (greater than 90 percent of the area was covered by shrub crown). However, trapping efforts may have been biased due to the difficulty of setting traps in dense scrub (Swaim 1994; K. Swaim, pers. comm. 1999).

Core areas (areas of concentrated use) of the Alameda whipsnake most commonly occur on east, south, southeast, and southwest facing slopes (Swaim 1994). However, recent information indicates that whipsnakes do make use of north facing slopes in more open stands of scrub habitat (K. Swaim, pers. comm. 1999).

Adult snakes appear to have a bimodal (two times of the year) seasonal activity pattern with peaks during the spring mating season and a smaller peak during late summer and early fall. Although short above-ground movements may occur during the winter, Alameda whipsnakes generally retreat in November into a hibernaculum (shelter used during the snake's dormancy period) and emerge in March. Courtship and mating occur from late-March through mid-June. During this time, males move around throughout their home ranges, while females appear to remain at or near their hibernaculum, where mating occurs. Suspected egg-laying sites for two females were located in grassland with scattered shrub habitat. Male home ranges of 1.9 to 8.7 hectares (ha) (4.7 to 21.5 acres (ac)) (mean of 5.5 ha or 13.6 ac) were recorded, and showed a high degree of spatial overlap. Several individual snakes monitored for nearly an entire activity season appeared to maintain a stable home range. Movements of these individuals were multi-directional, and individual snakes returned to specific areas and retreat sites after long intervals of non-use. Snakes had one or more core areas within their home range, while large areas of the home range received little use (Swaim 1994).

The September 18, 1985, Notice of Review (50 FR 37958) included the Alameda whipsnake as a category 2 candidate species for possible future listing as endangered or threatened. Category 2 candidates were those taxa for which listing as threatened or endangered might be warranted, but for which adequate data on biological vulnerability and threats were not available to support issuance of listing proposals. The January 6, 1989, Notice of Review (54 FR 554) solicited information on its status as a category 2 candidate species. The Alameda whipsnake was moved to category 1 in the November 21, 1991, Notice of Review (56 FR 58804) on the basis of significant increases in habitat loss and threats occurring throughout its range. Category 1 candidates were defined as taxa for which we had on file substantial information on biological vulnerability and threats to support preparation of listing proposals. On February 4, 1994, we published a proposed rule in the Federal Register (59 FR 5377) to list the Alameda whipsnake as an endangered species. On December 5, 1997, we published a final rule listing the Alameda whipsnake as threatened (62 FR 64306).

On March 4, 1999, the Southwest Center for Biological Diversity, the Center for Biological Diversity, and Christians Caring for Creation filed a lawsuit in the Northern District of California against the U.S. Fish and Wildlife Service and Bruce Babbitt, Secretary of the Department of the Interior (Secretary), for failure to designate critical habitat for seven species: The Alameda whipsnake ( Masticophis lateralis euryxanthus ), the Zayante band-winged grasshopper ( Trimerotropis infantilis ), the Morro shoulderband snail ( Helminthoglypta walkeriana ), the Arroyo southwestern toad ( Bufo microscaphus californicus ), the San Bernardino kangaroo rat ( Dipodomys merriami parvus ), the spectacled eider ( Somateria fischeri ), and the Steller's eider ( Polysticta stelleri ) ( Southwest Center for Biological Diversity v. U.S. Fish and Wildlife , CIV 99-1003 MMC).

On November 5, 1999, William Alsup, U.S. District Judge, dismissed the plaintiffs' lawsuit under a settlement agreement entered into by the parties. On March 8, 2000, (65 FR 12155) we proposed the designation of 7 areas within Alameda, Contra Costa, San Joaquin, and Santa Clara Counties as critical habitat for the Alameda whipsnake.

Critical habitat is defined in section 3 of the Act as—(i) the specific areas within the geographic area occupied by a species, at the time it is listed under the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management consideration or protection; and (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon determination that these areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures that are necessary to bring an endangered species or a threatened species to the point at which listing under the Act is no longer necessary.

Section 4(b)(2) of the Act requires that we base critical habitat proposals upon the best scientific and commercial data available, after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat. We may exclude areas from critical habitat designation when the benefits of exclusion outweigh the benefits of including the areas within critical habitat, provided the exclusion will not result in extinction of the species (section 4(b)(2) of the Act).

Designation of critical habitat can help focus conservation activities for a listed species by identifying areas that contain the physical and biological features that are essential for conservation of that species. Designation of critical habitat alerts the public as well as land-managing agencies to the importance of these areas.

Critical habitat also identifies areas that may require special management considerations or protection, and may provide protection to areas where significant threats to the species have been identified. Critical habitat receives protection from destruction or adverse modification through required consultation under section 7 of the Act with regard to actions carried out, funded, or authorized by a Federal agency. Aside from the protection that may be provided under section 7, the Act does not provide other forms of protection to lands designated as critical habitat.

Section 7(a)(2) of the Act requires Federal agencies to consult with us to ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a threatened or endangered species, or result in the destruction or adverse modification of critical habitat. “Jeopardize the continued existence” (of a species) is defined as an appreciable reduction in the likelihood of survival and recovery of a listed species.

“Destruction or adverse modification” (of critical habitat) is defined as a direct or indirect alteration that appreciably diminishes the value of critical habitat for the survival and recovery of the listed species for which critical habitat was designated. Thus, the definitions of “jeopardy” to the species and “adverse modification” of critical habitat are nearly identical (50 CFR 402.02). When multiple units of critical habitat are designated, each unit may serve as the basis of an adverse modification analysis if protection of different facets of the species' life cycle or its distribution are essential to the species as a whole for both its survival and recovery.

Designating critical habitat does not, in itself, lead to recovery of a listed species. Designation does not create or mandate a management plan, establish numerical population goals, prescribe specific management actions (inside or outside of critical habitat), or directly affect areas not designated as critical habitat. Specific management recommendations for critical habitat are most appropriately addressed in recovery plans and management plans, and through section 7 consultation.

We did not propose to designate critical habitat for the Alameda whipsnake within the proposed or final listing rulemaking because, at the time of listing, we knew of no Federal lands within the five whipsnake populations. We also believed that the possibility of Federal agency involvement on private and public, non-Federal lands was remote. Based on information available at the time of listing, we believed that only 20 percent of known whipsnake habitat occurred on private lands, and anticipated that urban development on private lands would occur only along the periphery of whipsnake populations. In addition, we believed that the need for active fire management programs at this urban-wildland interface would preclude those private lands from being considered habitat essential to the conservation of the species. We found that critical habitat designation was not prudent due to lack of any significant benefit beyond that conferred by listing.

Since the Alameda whipsnake was listed, we have found that there are a greater number of Federal actions that could trigger the need for an interagency consultation than was believed at the time the Alameda whipsnake was listed. We are now aware of federally owned lands that occur within the range of the Alameda whipsnake, including Bureau of Land Management parcels in the Mount Diablo-Black Hills population area. In addition, an Alameda whipsnake was recently captured on land owned by the U.S. Department of Energy at their Site 300 facility, a Federal site not previously known to be inhabited by Alameda whipsnakes. We are also aware of a number of activities with a Federal connection on private lands within the range of the whipsnake, including activities associated with the issuance of Clean Water Act section 404 permits and Federal Emergency Management Agency fire protection projects.

We now believe that private lands play a more important role in whipsnake conservation than we originally believed. An increasing amount of private land has been found to be occupied by the Alameda whipsnake, comprising more than 20 percent of land within the five whipsnake populations. High-value Alameda whipsnake habitat occurs on private lands that are evenly distributed throughout all five whipsnake population areas. We now believe that private lands are essential to the conservation of the species.

The ultimate purpose of listing a species as threatened or endangered under the Act is to recover the species to the point at which it no longer needs the protections provided to the listed species. The Act mandates the conservation of listed species through different mechanisms. Section 4(f) of the Act authorizes the Service to develop recovery plans for listed species. A recovery plan includes (i) a description of such site-specific management actions as may be necessary to achieve the plan's goal for the conservation and survival of the species, (ii) objective, measurable criteria which, when met, would result in a determination that the species be removed from the list, and (iii) estimates of the time required and cost to carry out those measures needed to achieve the plan's goal.

We are currently drafting a recovery plan for the Alameda whipsnake. This draft recovery plan will include a more thorough analysis of recovery needs of the Alameda whipsnake. Therefore, we may amend critical habitat at a later date based on information gained through the recovery planning process.

Under section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, we are required to base critical habitat determinations on the best scientific and commercial data available and to consider those physical and biological features that are essential to conservation of the species and that may require special management considerations or protection. Such requirements include, but are not limited to, space for individual and population growth, and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing of offspring, germination, or seed dispersal; and habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.

The primary constituent elements for the Alameda whipsnake are those habitat components that are essential for the primary biological needs of foraging, sheltering, breeding, maturation, and dispersal. The primary constituent elements are in areas that support scrub communities, including mixed chaparral, chamise-redshank chaparral, coastal scrub, and annual grassland and oak woodlands that lie adjacent to scrub habitats. In addition, the primary constituent elements for the Alameda whipsnake may be found in grasslands and various oak woodlands that are linked to scrub habitats by substantial rock outcrops or river corridors. Other habitat features that provide a source of cover for the whipsnake during dispersal or are near scrub habitats and contain habitat features (e.g., rock outcrops) that support adequate prey populations may also contain primary constituent elements for the Alameda whipsnake. Within these communities, Alameda whipsnakes require plant canopy covers that supply a suitable range of temperatures for the species' normal behavioral and physiological requirements (including but not limited to foraging, breeding, and maturation). Openings in the plant canopy or scrub/grassland edge provide sunning and foraging areas. Corridors of plant cover and retreats (including rock outcrops) sufficient to provide for dispersal between areas of habitat, and plant community patches of sufficient size to prevent the deleterious effects of isolation (such as inbreeding or the loss of a subpopulation due to a catastrophic event) are also essential. Within these plant communities, specific habitat features needed by whipsnakes include, but are not limited to, small mammal burrows, rock outcrops, talus, and other forms of cover to provide temperature regulation, shelter from predators, egg laying sites, and winter hibernaculum. Many of these same elements are important in maintaining prey species. Adequate insect populations are necessary to sustain prey populations.

We considered several qualitative criteria in the selection and proposal of specific areas or units for Alameda whipsnake critical habitat. These criteria focused on designating units (1) throughout the geographic and elevation range of the species; (2) within various occupied plant communities, such as diablan sage scrub, coyote bush scrub, and chamise chaparral; (3) in areas of large, contiguous blocks of geographical areas occupied by the species; and (4) in areas that link contiguous blocks of geographical areas occupied by the species (i.e., linkage areas).

In developing critical habitat for the Alameda whipsnake, we used data on known Alameda whipsnake locations to initially identify important areas. Through the use of 1998 and 1999 aerial photos (1:12,000 scale) and 1994 digital orthophotos, we examined the extent of suitable habitat that was in the vicinity of known whipsnake locations. Critical habitat includes both suitable habitat and areas that link suitable habitat, as these links or corridors facilitate movement of individuals between habitat areas and are important for dispersal and gene flow (Beier and Noss 1998). We have determined seven separate units of critical habitat, five of which represent primary breeding, feeding, and sheltering areas, while the other two represent corridors (See attached figures). The range of these critical habitat units extends in the south from Wauhab Ridge in the Del Valle area to Cedar Mountain Ridge, in Santa Clara County; north to the northernmost extent of suitable habitat in Contra Costa County; west to the westernmost extent of the inner Coastal Range; and in the east, to the easternmost extent of suitable habitat. We could not depend solely on federally owned lands for critical habitat designation as they are limited in geographic location, size, and habitat quality. In addition to federally owned lands, we propose to designate critical habitat on non-Federal public lands and privately owned lands, including California Department of Parks and Recreation lands, regional and local park lands, and water district lands.

Areas designated as critical habitat meet the definition of critical habitat under section 3 of the Act in that they are within the geographical areas occupied by the species, contain the physical and biological features that are essential to conservation of the species, and are in need of special management considerations or protection.

In determining areas that are essential for the survival and recovery of the species, we used the best scientific information available. This information included habitat suitability and species site-specific information. To date, only initial research has been done to identify and define specific habitat needs of Alameda whipsnakes, and no comprehensive surveys have been conducted to quantify their distribution or abundance. Limited and preliminary habitat assessment and whipsnake presence work has been conducted on the Department of Energy's Lawrence Livermore National Laboratory Site 300, East Bay Regional Park District's Tilden Park, San Francisco Public Utilities Commission's San Antonio Reservoir, Contra Costa Water District's Los Vaqueros Reservoir, East Bay Municipal Utility District's San Leandro Watershed and Siesta Valley, Pleasanton Ridge Conservation Bank, and Signature Properties' Bailey Ranch. Some small parcels have also been surveyed; however, these surveys were in conjunction with development and, in most cases, that habitat has been destroyed. -

We emphasized areas containing most of the verified Alameda whipsnake occurrences, especially recently identified locations. To maintain genetic and demographic interchange that will help maintain the viability of a regional metapopulation, we included corridor areas that allow movement between areas supporting Alameda whipsnakes. These corridors or connecting areas, while supporting some habitat suitable for foraging, shelter, breeding, and maturation, were primarily included to facilitate dispersal.

In identifying areas of critical habitat, we attempted to avoid developed areas such as towns, intensive agricultural areas such as vineyards, and other lands unlikely to contribute to Alameda whipsnake conservation. Given the short period of time in which we were required to complete this rule and the lack of fine-scale mapping data, we were unable to map critical habitat in sufficient detail to exclude all such areas. Existing features and structures within the critical habitat boundary, such as buildings, roads, canals, railroads, large water bodies, and other features not currently containing or likely to develop these habitat components, will not contain one or more of the primary constituent elements. Federal actions limited to these areas, therefore, would not trigger a section 7 consultation, unless they affect the species and/or primary constituent elements in adjacent critical habitat. Two areas, the north and south corridors (unit 6 connecting units 1 and 2; and unit 7 connecting units 3 and 5), contain some urban development. These two corridors are extremely narrow, and, therefore, maintaining as much area within these corridors as possible to ensure the long-term connectivity between whipsnake populations is important. These two units may not provide sufficient habitat necessary to allow for breeding, and offer limited opportunities for foraging and sheltering. However, these areas provide for the vital function of dispersal among other critical habitat units.

We considered the existing status of lands in designating areas as critical habitat. Section 10(a) of the Act authorizes us to issue permits for the taking of listed species incidental to otherwise lawful activities. Incidental take permit applications must be supported by a habitat conservation plan (HCP) that identifies conservation measures that the permittee agrees to implement for the species to minimize and mitigate the impacts of the requested incidental take. Currently, no approved HCPs cover the Alameda whipsnake or its habitat. However, we expect critical habitat may be used as a tool to help identify areas within the range of the Alameda whipsnake that are most critical for the conservation of the species. Development of HCPs for such areas on non-Federal lands should not be precluded, as we consider HCPs to be one of the most important methods through which non-Federal landowners can resolve endangered species conflicts. We provide technical assistance and work closely with applicants throughout development of HCPs to help identify special management considerations for the Alameda whipsnake. We intend for HCPs to provide a package of protection and management measures sufficient to address the conservation needs of the species.

The approximate area of critical habitat by county and land ownership is shown in Table 1. Critical habitat includes Alameda whipsnake habitat throughout the species' range in the United States ( i.e. , Contra Costa, Alameda, San Joaquin, and Santa Clara Counties, California). Lands designated as critical habitat are under private, State, and Federal ownership, with Federal lands including lands managed by the Bureau of Land Management and the U.S. Department of Energy. Lands designated as critical habitat have been divided into seven critical habitat units.

A brief description of each critical habitat unit and our reasons designating those areas as critical habitat for the Alameda whipsnake are given below:

Unit 1 encompasses approximately 16,074 ha (39,815 ac) within the Tilden-Briones unit and is the most northwestern unit of the five Alameda whipsnake metapopulations, and provides primary breeding, feeding, and sheltering habitat for the whipsnake. This entire unit occurs in Contra Costa County. This unit is bordered to the north by State Highway 4 and the cities of Pinole, Hercules, and Martinez; to the south by State Highway 24 and the City of Orinda Village; to the west by Interstate 80 and the cities of Berkeley, El Cerrito, and Richmond; and to the east by Interstate 680 and the City of Pleasant Hill. A substantial amount of public land exists within this unit, including East Bay Regional Park District's Tilden, Wildcat, and Briones Regional Parks and East Bay Municipal Utilities District watershed lands.

Unit 2 encompasses approximately 21,869 ha (54,170 ac) south of the Tilden-Briones unit and north of the Hayward-Pleasanton Ridge unit, and provides primary breeding, feeding, and sheltering habitat for the Alameda whipsnake. This unit is split evenly between Alameda and Contra Costa Counties. This unit is surrounded to the north by State Highway 24 and the cities of Orinda, Moraga, and Lafayette; to the south by Interstate Highway 580 and the City of Castro Valley; to the West by State Highway 13 and Interstate Highway 580 and the cities of Oakland and San Leandro; and to the east by Interstate Highway 680 and the cities of Danville, San Ramon, and Dublin. The Oakland-Las Trampas unit also contains substantial amounts of public land including East Bay Regional Park District's Redwood and Anthony Chabot Regional Parks, Las Trampas Regional Wilderness, and additional East Bay Municipal Utilities District watershed lands.

Unit 3 encompasses approximately 12,923 ha (32,011 ac) south of the Oakland-Las Trampas unit and northwest of the Sunol-Cedar Mountain unit, and provides primary breeding, feeding, and sheltering habitat for the Alameda whipsnake. This unit occurs solely in Alameda County and is surrounded by Interstate Highway 580 to the north; Niles Canyon Road (State Highway 84) to the south; the cities of Hayward and Union City to the west, and Interstate Highway 680 and the City of Pleasanton to the east. This unit is bisected by Palomares Canyon Road, which runs from Interstate Highway 580 to Niles Canyon Road. Greater than 30 percent of this unit is in public ownership, including Garin, Dry Creek, and Pleasanton Ridge Regional Parks and other East Bay Regional Park District holdings. The privately owned Pleasanton Ridge Conservation Bank also occurs in the northeastern section of this unit.

Unit 4 encompasses approximately 40,257 ha (99,717 ac) and completely encompasses Mount Diablo State Park and surrounding lands. The Mount Diablo-Black Hills Unit provides primary Alameda whipsnake breeding, feeding, and sheltering habitat. A majority of this unit is in Contra Costa County; however, the southern tip of this unit is in Alameda County. This unit is surrounded by State Highway 4 and the cities of Clayton, Pittsburgh and Antioch to the north; open grassland within Tassajara Valley just below the Alameda/Contra Costa County line to the south; the cities of Concord, Walnut Creek, and Danville to the west; and, to the east, by large expanses of grassland occurring west of State Highway 4, near the cities of Oakley and Brentwood. This unit contains large expanses of public lands, including two small Bureau of Land Management parcels; Mount Diablo State Park; Contra Costa Water District's Los Vaqueros Reservoir watershed; and Contra Loma, Black Diamond Mines, Morgan Territory, and Round Valley Regional Parks, and other East Bay Regional Park District holdings. Other public lands include lands owned by the City of Walnut Creek. Two large, privately owned gravel quarries occur within this unit.

Unit 5 encompasses approximately 69,168 ha (171,328 ac) and is the largest and the southernmost of the seven critical habitat units. It provides primary breeding, feeding, and sheltering habitat for the Alameda whipsnake. A majority of this unit is in Alameda County; however, it does also extend into western San Joaquin and northern Santa Clara Counties. The northern boundary of this unit runs parallel to State Highway 84 and Corral Hollow Road, south of the cities of Pleasanton and Livermore and Tesla Road. The southern boundary lies below Calaveras Reservoir and captures all of Wauhab and Cedar Ridges in Santa Clara County and stretches to the east, north of the Alameda-San Joaquin-Santa Clara-Stanislaus County intersection. The western boundary lies east of Interstate Highway 680 and the greater San Jose urban areas. The eastern boundary lies within San Joaquin County a few miles east of the Alameda County line. This unit includes East Bay Regional Park District's Sunol, Mission Peak, Ohlone, Camp Ohlone, and Del Valle complex, and State Water Project's Del Valle Reservoir watershed. In addition, the Department of Energy's Site 300 and California Department of Parks and Recreation's Carnegie Recreation Area occur within the unit.

Unit 6 encompasses approximately 2,185 ha (5,412 ac) and occurs between units 1 and 2 where State Highway 24 tunnels under the Berkeley Hills for approximately 1.2 kilometers (4,000 feet). It provides a connector between units 1 and 2. This unit is in Alameda and Contra Costa Counties. This unit encompasses lands owned by East Bay Municipal Utilities District, East Bay Regional Park District, Lawrence Berkeley Laboratory, the Cities of Berkeley and Oakland, and some private holdings.

Unit 7 encompasses approximately 1,673 ha (4,145 ac) and occurs between units 3 and 5 and lies south of State Highway 84 (Niles Canyon Road); north and west of Interstate 680; and east of the City of Fremont. It provides a connector between units 3 and 5. This unit is solely in Alameda County. This unit includes East Bay Regional Park District's Vargas Plateau and San Francisco Public Utilities watershed lands. Impediments to whipsnake movement between units 3 and 7 include Alameda Creek, a 0.3-0.6-meter (12-24-inch) high concrete barrier that lies south of Niles Canyon Road and north of Alameda Creek, railroad tracks that run along both sides of Alameda Creek, and heavy vehicular traffic along Niles Canyon Road.

Section 7(a) of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out do not destroy or adversely modify critical habitat to the extent that the action appreciably diminishes the value of the critical habitat for the survival and recovery of the species. Individuals, organizations, States, local governments, and other non-Federal entities are affected by the designation of critical habitat only if their actions occur on Federal lands, require a Federal permit, license, or other authorization, or involve Federal funding.

Section 7(a) of the Act requires Federal agencies, to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened 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. If a species is listed or critical habitat is designated, section 7(a)(2) requires Federal agencies to ensure that actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Through this consultation, Federal agencies ensure that their actions do not destroy or adversely modify critical habitat.

When we issue a biological opinion concluding that a project is likely to result in the destruction or adverse modification of critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable. Reasonable and prudent alternatives are defined at 50 CFR 402.02 as alternative actions identified during consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that the Director believes would avoid destruction or adverse modification of critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where critical habitat is subsequently designated and the Federal agency has retained discretionary involvement or control over the action or such discretionary involvement or control is authorized by law. Consequently, some Federal agencies may request reinitiation with us on actions for which formal consultation has been completed if those actions may affect designated critical habitat.

Activities on Federal lands that may affect the Alameda whipsnake or its critical habitat will require section 7 consultation. Activities on private or State lands requiring a permit from a Federal agency, such as a permit from the U.S. Army Corps of Engineers (Army Corps) under section 404 of the Clean Water Act, or some other Federal action, including funding ( e.g. , Federal Highway Administration, Federal Aviation Administration, or Federal Emergency Management Agency) will also continue to be subject to the section 7 consultation process. Federal actions not affecting listed species or critical habitat and actions on non-Federal lands that are not federally funded or regulated do not require section 7 consultation.

Section 4(b)(8) of the Act requires us to describe in any proposed or final regulation that designates critical habitat those activities involving a Federal action that may destroy or adversely modify such habitat or that may be affected by such designation. Activities that may destroy or adversely modify critical habitat include those that alter the primary constituent elements to the extent that the value of critical habitat for both the survival and recovery of the Alameda whipsnake is appreciably diminished. We note that such activities may also jeopardize the continued existence of the species. Where they appreciably reduce the value of critical habitat, such activities may include, but are not limited to:

(1) Removing, thinning, or destroying vegetation, whether by burning or mechanical, chemical, or other means ( e.g. , fuels management, bulldozing, herbicide application, overgrazing, etc.) that have not been approved by the Service, exclusive of routine clearing of fuel breaks around urban boundaries that were constructed before the listing of the whipsnake on December 5, 1997;

(2) Water transfers, diversion, or impoundment, groundwater pumping, irrigation, or other activity that causes barriers or deterrents to dispersal, inundates habitat, or significantly converts habitat ( e.g. , conversion to urban development, vineyards, landscaping);

(3) Recreational activities that significantly deter the use of suitable habitat areas by Alameda whipsnakes or alter habitat through associated maintenance activities ( e.g. , off-road vehicle parks, golf courses, and hiking, mountain biking, and horseback riding trails);

(4) Sale, exchange, or lease of Federal land containing suitable habitat that is likely to result in the habitat being destroyed or appreciably degraded; and

(5) Construction activities that destroy or appreciably degrade suitable habitat ( e.g. , urban development, building of recreational facilities such as off-road vehicle parks and golf courses, road building, drilling, mining, quarrying, and associated reclamation activities).

To properly portray the effects of critical habitat designation, we must first compare the section 7 requirements for actions that may affect critical habitat with the requirements for actions that may affect a listed species. Section 7 prohibits actions funded, authorized, or carried out by Federal agencies from jeopardizing the continued existence of a listed species or destroying or adversely modifying the listed species' critical habitat. Actions likely to “jeopardize the continued existence” of a species are those that would appreciably reduce the likelihood of the species' survival and recovery. Actions likely to “destroy or adversely modify” critical habitat are those that would appreciably reduce the value of critical habitat for the survival and recovery of the listed species.

Common to both definitions is an appreciable detrimental effect on both survival and recovery of a listed species. Given the similarity of these definitions, actions likely to destroy or adversely modify critical habitat would almost always result in jeopardy to the species concerned, particularly when the area of the proposed action is in the geographical areas occupied by the species concerned. In those cases, critical habitat provides little additional protection to a species, and the ramifications of its designation are few. However, if an area now occupied by the species were to become unoccupied in the future, critical habitat designation may provide additional protection than is available through a jeopardy analysis.

If you have questions regarding whether specific activities will constitute destruction or adverse modification of critical habitat, contact the Field Supervisor, Sacramento Fish and Wildlife Office (see ADDRESSES section).

Designation of critical habitat could affect Federal agency activities where they appreciably reduce the value of critical habitat. Some of these activities include, but are not limited to:

(1) Sale, exchange, or lease of lands owned by the Bureau of Land Management or the Department of Energy;

(2) Regulation of activities affecting waters of the United States by the Army Corps of Engineers under section 404 of the Clean Water Act;

(3) Regulation of water flows, water delivery, damming, diversion, and channelization by the Bureau of Reclamation and the Army Corps of Engineers;

(4) Regulation of grazing, recreation, or mining by the Bureau of Land Management;

(5) Funding and implementation of disaster relief projects by the Federal Emergency Management Agency;

(6) Funding and regulation of new road construction by the Federal Highways Administration;

(7) Clearing of vegetation by the Department of Energy;

(8) The cleanup of toxic waste and superfund sites under the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) by the U.S. Environmental Protection Agency; and

There are no approved HCPs within the designated critical habitat area. However, future HCPs are probable.

We anticipate that future HCPs will include the Alameda whipsnake as a covered species and provide for its long-term conservation. We expect that HCPs undertaken by local jurisdictions (e.g., counties and cities) and other parties will identify, protect, and provide appropriate management for those specific lands within the boundaries of the plans that are essential for the long-term conservation of the species. Section 10(a)(1)(B) of the Act states that HCPs must meet issuance criteria, including minimizing and mitigating any take of the listed species covered by the permit to the maximum extent practicable, and that the taking must not appreciably reduce the likelihood of the survival and recovery of the species in the wild. We fully expect that our future analysis of HCPs and Section 10(a)(1)(B) permits under section 7 will show that covered activities carried out in accordance with the provisions of the HCPs and Section 10(a)(1)(B) permits will not result in the destruction or adverse modification of critical habitat designated for the Alameda whipsnake.

In the event that future HCPs covering the Alameda whipsnake are developed within the boundaries of designated critical habitat, we will work with applicants to ensure that the HCPs provide for protection and management of habitat areas essential for the conservation of the Alameda whipsnake by either directing development and habitat modification to nonessential areas or appropriately modifying activities within essential habitat areas so that such activities will not adversely modify the primary constituent elements. The HCP development process provides an opportunity for more intensive data collection and analysis regarding the use of particular habitat areas by the Alameda whipsnake. The process also enables us to conduct detailed evaluations of the importance of such lands to the long-term survival of the species in the context of constructing a biologically configured system of interlinked habitat blocks.

We will provide technical assistance and work closely with applicants throughout the development of future HCPs to identify lands essential for the long-term conservation of the Alameda whipsnake and appropriate management for those lands. The take minimization and mitigation measures provided under these HCPs are expected to protect the essential habitat lands designated as critical habitat in this rule.

In the March 8, 2000, proposed rule, all interested parties were requested to submit comments and suggestions relative to the proposed designation of critical habitat for the Alameda whipsnake, including our economic analysis and the relationship of the designation to future HCP's (65 FR 12155). On May 15, 2000, we published a notice in the Federal Register (65 FR 30951) to reopen the comment period and announce a public hearing on the proposed determination. We published a notice of availability and request for comments on the draft economic analysis on June 23, 2000 (65 FR 39117), and subsequently, extended the comment periods for the proposed designation of critical habitat and the draft economic analysis to July 24, 2000. Comments received from March 8 through July 24, 2000, were entered into the administrative record.

All appropriate State and Federal agencies, county governments, scientific organizations, and other interested parties were contacted and invited to comment. Legal notices inviting public comment were published in the Oakland Tribune. In addition, the following news releases were issued: (1) a March 8, 2000, news release announcing the proposed designation of critical habitat and soliciting public review and comment; (2) a May 15, 2000, news release announcing public hearings; and (3) a June 23, 2000, news release announcing the availability of the draft economic analysis to the public for review and comment and the extension of the comment period.

We held one public hearing on the proposed rule at San Ramon, Contra Costa County, California, on June 1, 2000. A notice of the hearing and its location was published in the Federal Register on May 15, 2000 (65 FR 30951). A total of 45 people provided verbal comments at the public hearing. Transcripts of this hearings are available for inspection at the Sacramento Fish and Wildlife Office (see ADDRESSES section).

We received a total of 45 oral and 551 written comments during the comment period. Of those oral comments, 14 supported critical habitat designation, 23 were opposed to designation, and 7 provided additional information but did not support or oppose the proposal. Of the written comments, 456 supported designation, 72 were opposed to it, and 23 provided additional information only, or were nonsubstantive or not relevant to the proposed designation. In total, oral and written comments were received from 5 Federal agencies, 5 State agencies, 11 local governments, and 532 private organizations, companies, or individuals.

All comments received were reviewed for substantive issues and new data regarding critical habitat and the Alameda whipsnake. Comments of a similar nature are grouped into 6 issues relating specifically to critical habitat. These are addressed in the following summary.

(1a) Comment: One commenter stated that not enough information is known about the total habitat requirements of the species to define critical habitat. One additional commenter stated that Unit 5 was far too large and not based on the best available scientific evidence. Several commenters questioned the scientific basis for designating specific areas as critical habitat and recommended excluding areas that did not provide all of the primary constituent elements for whipsnake habitat and areas that reported negative Alameda whipsnake survey results.

Response: Section 4(b)(2) of the Act states “The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) on the basis of the best scientific data available.” Our recommendation is based on the available body of information on the biology and status of this subspecies, as well as the effects of land-use practices on its continued existence. We also utilized information on related species, including the chaparral whipsnake, if information on the Alameda whipsnake was lacking. No new information on the life history of the whipsnake was provided during the public comment periods. We agree that much remains to be learned about this species, and should credible, new information become available that contradicts the basis for this designation, we shall reevaluate our analysis and, if appropriate, propose to modify this critical habitat designation. We have considered the best scientific information available at this time, as required by the Act.

In selecting areas to be included in the designation, we identified the historic range of the whipsnake, as well as important components related to survival and recovery, including areas that provide sufficient breeding, feeding, and sheltering, as well as providing adequate movement corridors to maintain genetic connectivity and adequate space for population fluctuations. Because of the nature of the whipsnake (fast, secretive, mobile, burrow dwelling, with periods of hibernation) negative whipsnake survey results may not provide sufficient evidence that the site is not used by Alameda whipsnakes during some point in their life cycle. In addition, whipsnake surveys do not characterize whether the site provides one or all of the primary constituent elements needed by the whipsnake for survival and recovery. Because the primary constituent elements are linked to various stages of the whipsnake's life history (breeding, dispersal) or to certain physiological requirements (temperature regulation for foraging), and the whipsnake would not necessarily be engaged in all these activities concurrently, not all elements need be present for the site to be considered for designation.

(1b) Comment: A few commenters stated that the Service neglected to include species information and habitat data that was developed by the Alameda-Contra Costa Biodiversity Working Group.

Service Response: The Service reviewed the information prepared by the Alameda-Contra Costa Biodiversity Working Group. The working group used the Alameda whipsnake as an umbrella species for chaparral and coastal scrub habitats. The working group did not define any other habitats, including grasslands, woodlands, or riparian areas, as potential whipsnake habitat. These habitat types were mapped using false-color infrared color aerial photographs and subsequently mapped on 7.5-minute orthophotographs. As explained under the “Methods” section above, the Service used a similar approach for mapping critical habitat for the Alameda whipsnake. However, in addition to chaparral and coastal scrub habitats, the Service defined whipsnake habitat to include grassland, oak woodland, and riparian habitats that lie adjacent to and provide corridors between areas of scrub and chaparral habitat. Native grassland, oak woodland, and riparian habitats that lie adjacent to chaparral and scrub habitats provide important feeding, breeding, and sheltering sites. In addition, these habitat types facilitate movement of whipsnakes between scrub and chaparral habitat areas to ensure adequate dispersal and gene flow between subpopulations.

(1c) Comment: Many local fire prevention agencies commented that ongoing fuel reduction and modification that occurred before the Alameda whipsnake was formally listed on December 5, 1997, should be exempt from this rulemaking, including the Lafayette Reservoir watershed. In addition, these agencies requested that fire prevention techniques such as prescribed burning and ongoing vegetative clearing should be permitted when there is a threat to human health and property. Mount Diablo State Park specifically requested that the designation of critical habitat not preclude the use of prescribed fire to improve the biological health of the vegetative community and reduce the risk of a catastrophic wildfire.

Service Response: As stated in the “Section 7 Consultation” section above, routine clearing of fuel breaks around urban boundaries that were constructed before the listing of the whipsnake on December 5, 1997, including the Layette Reservoir Watershed, would not be affected by this designation. In addition, the designation of critical habitat for the Alameda whipsnake will have no effect on activities that occur on private property unless the activity is federally funded or requires a Federal permit. For projects that receive Federal (i.e. Federal Emergency Management Agency (FEMA)) funding, the Service is actively working with the Federal agency and the local representative to ensure that untimely delays in project implementation do not occur. The Service agrees that Mount Diablo State Park's concerns regarding their prescribed burn program are significant. The designation of critical habitat will not require any additional restrictions for carrying out prescribed burn projects above and beyond the restrictions currently in effect due to the listing of the Alameda whipsnake as a threatened species. Furthermore, the Service will assist Mount Diablo State Park staff with the development of a Habitat Conservation Plan, or any other measures required so the Park can continue vegetation enhancement measures such as prescribed burn projects.

(1d) Comment: Several commenters stated that the maps supplied with the proposed rule designating critical habitat did not exclude existing infrastructure including housing developments, reservoirs, and other manmade features that are not suitable habitat for the Alameda whipsnake.

Service Response: As stated in the ‘Methods’ section above, given the short period of time in which we were required to complete this rule, and the lack of fine-scale mapping data, we were unable to map critical habitat in sufficient detail to exclude all such areas. Existing features and structures within the critical habitat boundary, such as buildings, roads, canals, railroads, large water bodies, and other features not currently containing or likely to develop these habitat components, will not contain one or more of the primary constituent elements.

(1e) Comment: Several commenters stated that activities such as recreational biking, hiking, horseback riding, and off-road highway vehicle use were unfairly placed in the same category of impacts with more significant threats to the species including urban development and golf course construction and use.

Service Response: In the proposed rule and here in the final rule, we list activities that could adversely modify critical habitat without placing specific emphasis on the relative contribution of any one activity. The use of existing trails for recreational hiking, biking, and horseback riding do not pose the same level of threats to the species as the construction and use of new trails that modify critical habitat for the whipsnake. The specific threats that result from the construction and use of new trails are likely unique to each critical habitat unit and are best addressed in recovery plans, management plans, and section 7 consultations.

(1f) Comment: Many commenters were concerned about how designation of critical habitat would affect grazing and recreation activities including biking, hiking, and horseback riding.

Service Response: Designation of critical habitat does not prescribe specific management actions, but does identify areas that are in need of special management considerations. In regards to grazing, the Service does not foresee any change in the ability of private landowners to graze their property. In addition, we anticipate that many activities, including grazing and recreational trail use, presently occurring on critical habitat areas can be managed so as to be compatible with the whipsnake's needs.

(1g) Comment: One commenter asked whether existing utility features and the maintenance of these features are covered under the definition of critical habitat for the Alameda whipsnake.

Service Response: Yes, however, the designation of critical habitat will not require any additional restrictions for carrying out maintenance projects above and beyond the restrictions currently in effect due to the listing of the Alameda whipsnake as a threatened species. Furthermore, the Service will assist utility companies with the development of a Habitat Conservation Plan or any other measures required so that maintenance projects can continue.

(1h) Comment: One commenter was concerned that, given the extensive amount of land designated as critical habitat, the Service might not require surveys for whipsnake presence, eliminating a source for locality information.

Service Response: The Service does not foresee a decrease in the number of future Alameda whipsnake surveys. Future Alameda whipsnake surveys may be conducted to determine the relative abundance of Alameda whipsnakes at specific sites and to determine appropriate minimization measures. In addition, the draft recovery plan will identify the need to conduct surveys in association with a variety of recovery tasks.

(1i) Comment: A few commenters stated that the Service incorrectly proposed critical habitat in the eastern section of unit 5 because there are no verified Alameda whipsnake records in the area. Additional commenters stated there are no known Alameda whipsnake occurrences throughout unit 5. Also, one commenter stated the Service should not designate critical habitat in the western section of unit 5 because of the lack of information regarding the zones of intergradation between federally-listed Alameda whipsnake and the non-listed chaparral whipsnake.

Service Response: A live-trapping survey for the Alameda whipsnake was conducted within the eastern section of unit 5 on the Department of Energy's Lawrence Livermore Lab's Site 300 in 1998. During that survey, 14 individual California whipsnakes were captured, one of which had more taxonomic characteristics of the Alameda whipsnake than the chaparral whipsnake. The Service also has records of pure Alameda whipsnake occurrences that occur throughout unit 5, including two occurrences that lie just north of Calavaras Reservoir, within 10 miles of the western boundary of unit 5.

(1j) Comment: One of the peer review commenters stated that zone of intergradation between the Alameda whipsnake and the chaparral whipsnake occurs in the Del Puerto Canyon and San Antonio Valley areas of San Joaquin, Santa Clara, and Stanislaus Counties. He suggested that critical habitat be extended south and southeast of Unit 5 to encompasses additional areas within western San Joaquin and Stanislaus Counties and northern Santa Clara County to capture this zone of intergradation.

Service Response: The Service will investigate these areas of intergradation to determine their extent and their relationship to the Alameda whipsnake population that occurs in Unit 5. Based on this investigation, we will decide whether critical habitat in unit 5 should be extended further south and southeast to include the Del Puerto Canyon and San Antonia Valley areas.

(1k) Comment: One commenter claimed that the proposed rule is internally inconsistent as it states that critical habitat was proposed on land that is occupied by the Alameda whipsnake, while it appears that unoccupied habitat has been proposed for designation.

Service Response: A range-wide survey has not been conducted for this species. As described in ‘Methods’ above, we used data on known Alameda whipsnake locations to initially identify important areas. We have also made the reasonable assumption that areas adjacent to these locations are also within the geographical area occupied by the species based on the suitability of the habitat. In addition, knowledge of the species biology and the need for genetic connectivity to assure species persistence directs the inclusion of movement corridors where possible. The Service, therefore, maintains that all seven critical habitat units are geographical areas occupied by the Alameda whipsnake.

(2a) Comment: Several commenters stated that private lands should be excluded from critical habitat designation. These commenters stated that the publication of maps with threatened or endangered species locations overlaid upon private land could subject private property owners to increased exposure to litigation, liability, trespass, or other activities that could interfere with privacy, and with the lawful beneficial uses of the property.

Service Response: Section 4(b)(2) of the Act states “The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat.” The Act does not require nor suggest that private lands should be excluded from designation, unless we find that the economic or other relevant impacts outweigh the benefit of critical habitat designation.

(2b) Comment: Several commenters recommended excluding from designation as critical habitat areas where there were plans being formulated to construct urban improvements within or in proximity to the areas proposed as critical habitat.

Service Response: We did not exclude any areas because of speculative or proposed developments. We are available to work with project proponents to develop project alternatives that will avoid and minimize adverse effects to whipsnakes, and not result in destruction or adverse modification of critical habitat.

(2c) Comment: One commenter stated that, given the fact that 60 percent of the known range of the Alameda whipsnake occurs in public ownership, the loss of the 40 percent that is held in private ownership would not lead to the demise of the snake. Therefore, private lands should not be included as critical habitat.

Service Response: The range of the Alameda whipsnake has been fragmented by urban development and associated roadway construction. What remains are five distinct populations that continue to suffer significant habitat loss due to urban encroachment and related activities. Public and private lands are randomly distributed throughout the current range of the species. The loss of all remaining private lands that provide suitable habitat for the whipsnake would further fragment the five whipsnake populations and result in significant losses of breeding, feeding, and sheltering habitats, as well as the connectivity corridors. The Service believes that both public and private lands are essential to the survival and recovery of the species. The critical habitat designation, therefore, includes both private and public lands.

(3a) Comment: Several commenters expressed concern with the lack of connectivity between individual units, especially between units 2 and 3.

Service Response: The Service agrees that there is currently limited potential for movement between these two units. However, through recovery efforts, the Service proposes to research ways to promote connectivity and to determine the level of connectivity needed to prevent genetic bottlenecking. The Alameda whipsnake populations that occupy units 2 and 3 are the most threatened with extinction due to their small sizes and the continued encroachment of urban development that is further fragmenting these populations and directly removing suitable whipsnake habitat. The Service agrees with the commenters that all future opportunities for reconnecting these two populations with each other and with other whipsnake populations should be explored to ensure recovery of the species. For example, there may be opportunities for reestablishing connectivity between units 2 and 3 associated with any alterations of Interstate 580.

(3b) Comment: A few commenters wanted clarification as to whether their properties were included in the proposed critical habitat designation.

Service Response: Service staff discussed with the landowners their properties' relationship to the critical habitat designation.

(3c) Comment: One commenter was concerned that the designation of critical habitat would prevent the extraction and processing of aggregate materials at four separate facilities that occur within the critical habitat boundaries.

Service Response: The designation of critical habitat has no effect on non-Federal actions taken on private land, even if the private land is within the mapped boundary of designated critical habitat. The listing of the Alameda whipsnake as threatened, however, does provide the whipsnake the protection afforded by the Act on both public and private lands. Critical habitat has possible effects on activities by private landowners only if the activity involves Federal funding, a Federal permit, or other Federal action. If such a Federal nexus exists, we will work with the landowner and the appropriate Federal agency to develop a project that can be completed without jeopardizing the species or destroying or adversely modifying critical habitat. In this case, reclamation activities upon facilities closure may require Federal funding, a Federal permit, or other Federal action.

(3d) Several commenters pointed out errors in locations or descriptions in the proposed rule.

Service Response: Corrections have been made in the final rule to reflect these comments, where appropriate.

(4a) Comment: Several commenters stated that the proposed critical habitat designation is based on insufficient data and the Service should withdraw its proposal given the limited amount of time it had to adequately map whipsnake critical habitat.

Service Response: As explained in 1(a) above, Section 4(b)(2) of the Act states “The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) on the basis of the best scientific data available . . .”. At this time, the Service has used the best available data to formulate the designation.

(4b) Comment: Several commenters stated the designation of critical habitat constitutes a major Federal action significantly affecting the quality of the human environment. An Environmental Impact Statement (EIS) should be prepared.

Service Response: We have determined that Environmental Assessments (EAs) and EISs, as defined under the authority of the National Environmental Policy Act of 1969 (NEPA), need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register in October 1983 (48 FR 49244).

(4c) Comment: Several commenters stated the maps and descriptions provided were vague and violate the Act.

Service Response: This final rule contains the required legal descriptions of areas designated as critical habitat. If additional clarification is necessary, contact the Sacramento Fish and Wildlife Office (see ADDRESSES section). As described under the “Critical Habitat Designation” section above, we identified specific areas referenced by specific legal description, roads, waterways, and other landmarks, which are found on standard topographic maps.

(4d) Comment: The critical habitat proposal represents virtually all suitable or potentially suitable habitat within the species' historic range. The Act prohibits such broad designation.

Service Response: Section 3(5)(C) of the Act states that, except in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical areas which can be occupied by an endangered or threatened species. The Alameda whipsnake population has been fragmented into five distinct populations from urban development and associated highway construction. The loss of any one of these five populations could lead to the extinction of the entire species. Therefore, we have determined that the areas designated are essential to conserve this species.

(4e) Comment: Several commenters asked whether projects that have obtained a biological opinion pursuant to section 7 of the Act would be required to reinitiate consultation to address the designation of critical habitat.

Service Response: For all projects that have completed section 7 consultation where that consultation did not address potential destruction or adverse modification of critical habitat for the Alameda whipsnake, and have not been constructed, section 7 consultation must be reinitiated. We expect that projects that do not jeopardize the continued existence of the Alameda whipsnake are not likely to destroy or adversely modify its critical habitat.

(4f) Comment: Several commenters have asked what specifically constitutes a federal nexus on private land.

Service response: A Federal nexus is invoked when a Federal agency is funding, permitting, or in some way authorizing a project. For the purposes of this rulemaking, a Federal nexus that was invoked prior to the rulemaking for a project that has been constructed or completed, would not require a section 7 consultation under the Act. If the project has not to date received Federal funding, a Federal permit, or Federal authorization, but will require such in the future, and the project might destroy or adversely modify critical habitat, the action would require a section 7 consultation. In addition, projects that have been federally funded, permitted, or authorized, but have not been fully constructed would require a section 7 consultation if the project may destroy or adversely modify critical habitat.

(4g) Comment: Several commenters asked whether it is prudent to designate private land as critical habitat when there is no Federal nexus.

Service Response: As stated under the “Critical Habitat” section above, designation of critical habitat can help focus conservation activities for a listed species by identifying areas that contain the physical and biological features that are essential for conservation of that species. Designation of critical habitat alerts the public as well as land-management agencies to the importance of these areas.

(4h) Comment: One commenter stated that the Service lacks the authority under the Commerce Clause of the Constitution to designate critical habitat on State and private land for a species that has no commercial utility.

Service Response: The Service maintains that it does have the authority to designate critical habitat for the Alameda whipsnake on private and State lands pursuant to the Act. Several court cases have confirmed this authority ( e.g., Nat. Ass'n of Home Builders of the U.S. v. Babbitt , 130 F.3d 1041 (D.C. Cir. 1997).

(4i) Comment: Several commenters stated that critical habitat should not be designated until a recovery plan is completed.

Service Response: Although having a recovery plan in place is extremely helpful in identifying areas as critical habitat, the Act does not require a recovery plan to be prepared prior to such designation of critical habitat. Section 4(a)(3) of the Act specifically requires that critical habitat be designated at the time a species is listed, or within 1 year if not determinable at listing. Once a recovery plan is finalized, we may revise the critical habitat described in this final rule, if appropriate, to reflect the goals and recovery strategies of the recovery plan.

Comment: In response to the Service's request that the public comment on critical habitat designation relative to future HCP's, 2 commenters support the approach that critical habitat be removed entirely from within the boundaries of HCP's automatically upon the issuance of the incidental take permit. One commenter stated that critical habitat should be retained within the boundaries of approved HCP's.

Service Response: The Service has considered several different approaches regarding the issuance of HCP's within the critical habitat boundary. Although there are no authorized or completed HCP's that occur within the boundary of Alameda whipsnake critical habitat designation, future HCPs are probable. If, consistent with available funding and program priorities, we elect to revise this designation to reflect future HCPs, our Solicitors have advised that modifying the designation will require a subsequent rulemaking.

(6a) Comment: Many commenters expressed concern that the draft economic analysis failed to quantify the effects of proposed critical habitat designation.

Service Response: Given the circumstances surrounding the preparation of the draft economic analysis, we were only able to identify the types of impacts likely to occur regarding proposed critical habitat designation. Impacts we identified that could result from critical habitat designation include new section 7 consultations, re-initiation of consultations, and perhaps some prolongment of ongoing consultations to address critical habitat concerns, as required under section 7 of the Act. In some of these cases, it is possible that we might suggest reasonable and prudent alternatives to the proposed activity that triggered the consultation, which would also be an impact. Also associated with consultations is the length of time required to carry out consultations, which may result in opportunity costs associated with project delays.

In the case of proposed critical habitat for the Alameda whipsnake, however, we have only designated habitat that is within the geographical areas occupied by the whipsnake. As a result, few of these impacts are likely to occur because Federal agencies are already required to consult with us on activities taking place on these lands that have the potential to may adversely affect the whipsnake. We believe that the only impacts to landowners whose property lies within critical habitat boundaries are due to reinitiation of completed consultations for projects not yet completed, and the designations temporary affect on real estate values. While the Act requires agencies to consult with us on activities that adversely modify critical habitat, we do not believe that within proposed critical habitat for the Alameda whipsnake there are likely to be any actions of concern that adversely modify critical habitat without also jeopardizing the whipsnake.

We also recognize that, in some instances, the designation of critical habitat could affect real estate market value, because participants may incorrectly perceive that land within critical habitat designation to be subject to additional constraints. However, we believe that this affect will be temporary.

(6b) Comment: Some commenters were concerned that, while we discussed impacts that are more appropriately attributable to the listing of the Alameda whipsnake than to the proposed designation of critical habitat, we did not provide quantified estimates associated with the listing (62 FR 64306).

Service Response: We are prohibited from considering economic impacts when determining whether or not a species should be added to the list of Federally protected species. As a result, we have not estimated these impacts in the past, nor were we able to do so for the draft economic analysis on proposed critical habitat.

(6c) Comment: Several commenters voiced concern that they were not directly contacted for their opinions on the economic impacts of critical habitat designation.

Service Response: It was not feasible to contact every potential stakeholder in order for us to develop a draft economic analysis. We believe that we were able to understand the issues of concern to the local community based on public comments submitted on the proposed rule, on transcripts from public hearings, and from detailed discussions with Service representatives. To clarify issues, we did contact representatives from other Federal, State, and local government agencies, as well as some landowners.

In regard to consultations, the Act and its implementing regulations only requires Federal agencies to consult with us on activities that they fund, authorize, or carry out that may affect a listed species or adversely modify critical habitat. As a result, only Federal agency representatives are in a position to characterize whether or not any additional or re-initiated consultations might occur as a result of critical habitat designation. The Act prohibits anyone, including private landowners, from take of a listed species without Service authorization; however, the impacts associated with this requirement are attributable to the listing of the species.

Based on what we have learned and because critical habitat was designated only in areas occupied by the whipsnake, we believe that the only impacts to landowners whose property lies within critical habitat boundaries are due to reinitiation of completed consultations for projects not yet completed, and the designations temporary affect on real estate values.

(6d) Comment: Several commenters voiced concern that, while their property was within proposed critical habitat boundaries, they have never found any whipsnakes on their property, and that in many cases their property did not contain the physical elements described in the proposed rule that are required by the whipsnake.

Service Response: We recognize that not all parcels within proposed critical habitat designation will contain the primary constituent elements needed by the whipsnake. Given the short period of time in which we were required to complete this proposed rule, and the lack of fine scale mapping data, we were unable to map critical habitat in sufficient detail to exclude all such areas. Within the proposed critical habitat boundaries, only areas that contain or are likely to develop those habitat components essential for the primary biological needs of the Alameda whipsnake may be subject to section 7 consultation should a Federal nexus exist in those areas. Activities that do not involve a Federal nexus would not require section 7 consultation, even if primary constituent elements are present.

(6e) Comment: Some commenters felt that the economic analysis is flawed because it is based on the premise that the Service has proposed designating only occupied habitat as critical habitat.

Service Response: The determination of whether or not proposed critical habitat is occupied by the whipsnake lies beyond the scope of an economic analysis. See also our response to issue 1(k), above.

(6f) Comment: Critical habitat designation is so broad that some landowners will be forced to survey for whipsnake presence under Federal and State environmental laws when undertaking a project, even though some sites within designated critical habitat do not contain whipsnakes or the primary constituent elements needed by whipsnakes to occupy an area. In effect, the Service has shifted the economic burden of determining what lands are occupied by the Alameda whipsnake within the designated units to landowners within these units, irrespective of whether the lands in question have ever been occupied by the snake.

Service Response: We have determined that the geographical areas that have been identified as critical habitat are occupied by the Alameda whipsnake. We have attempted to exclude developed lands from proposed critical habitat designation when possible. In selecting areas of proposed critical habitat, we attempted to avoid developed areas such as towns, intensive agricultural areas such as vineyards, and other lands unlikely to contribute to the Alameda whipsnake conservation. While we have been unable to avoid all such areas, actions limited to these areas will not require consultations.

(6g) Comment: Many landowners expressed concern about how critical habitat designation may affect their particular properties and what they would and would not be allowed to do in the future because of the designation. Some of these landowners expressed concerns that they would need to seek incidental take authorization from the Service for every type of action taken on their property.

Service Response: While the Service is sensitive to the concerns of individuals concerning their property rights, we believe that the designation of critical habitat, for the Alameda whipsnake does not impose any additional conditions on property owners within those areas designated as critical habitat, beyond those imposed due to the Alameda whipsnake being a Federally protected species. All landowners are responsible to ensure that their actions do not result in the unauthorized take of a listed species, and all Federal agencies are responsible to ensure that the actions they fund, permit, or carry out do not result in jeopardizing the continued existence of a listed species, regardless of where the activity takes place. We will work with any covered landowners to identify actions that would or would not likely result in take of Alameda whipsnakes, to identify measures to conserve the whipsnake, and, where appropriate, to develop HCPs and associated permits under section 10 of the Act to authorize incidental take of the Alameda whipsnake.

(6h) Comment: The draft economic analysis failed to adequately estimate the potential economic impacts to agricultural lands and how these effects would ripple through the local economy.

Service Response: In conducting our economic analysis, we acknowledged that we had received incomplete information from the agricultural industry and awaited their comments. We received several comments that suggested that we failed to adequately consider effects to the agricultural community of designating critical habitat. We have read through these comments but have concluded that the commenters have failed to adequately explain the rationale for why they believe critical habitat designation impacts their industry.

In designated critical habitat, landowners, if subject to a Federal nexus, will have to consult with us, through the representative Federal action agency, concerning any actions that may adversely affect the Alameda whipsnake or adversely modify its critical habitat. However, because we have only designated geographical areas that are occupied by the snake, landowners and associated action agencies would still be required to consult with us on such activities regardless of critical habitat designation.

As a result, contrary to one commenter's suggestion, we chose not to consider agriculture multiplier effects in performing our economic analysis because our primary interest is in determining whether or not critical habitat designation could affect landowner activities. Because of how critical habitat was defined and the current restrictions on jeopardizing an endangered or threatened species, we have determined that we are not adding any additional burden to the industry and as a result we do not find it necessary to fully explore the importance of the agriculture industry, to the local economy in the economic analysis concerning proposed critical habitat for the Alameda whipsnake.

(6i) Comment: The draft economic analysis failed to adequately estimate the potential economic impacts to landowners regarding fire management practices.

Service Response: The economic analysis does address fire/fuel management concerns that were voiced by some of the stakeholders. It raises the concern that these programs are subject to a clear Federal nexus because the practice relies in part on funding from the Federal Emergency Management Agency (FEMA). However, because we have only designated geographical areas by the species as critical habitat for the whipsnake, this activity is subject to no further scrutiny by us than it normally would be because the whipsnake is a federally protected species and is protected both from any actions resulting in an unlawful take and from Federal actions that could result in jeopardizing the species.

(6j) Comment: Some landowners expressed concern that, because their property was located within critical habitat boundaries, they would be subject to additional constraints under the California Environmental Quality Act (CEQA).

Service Response: To the extent that the CEQA places additional constraints on property owners within designated critical habitat such constraints would be a direct effect of CEQA and not a direct result of the designation of critical habitat for the Alameda whipsnake.

(6k) Comment: Some commenters agreed with the statement in the economic analysis that the designation of critical habitat could have some effect on property values.

Service Response: We acknowledged in our economic analysis that the designation of critical habitat could have some effect on property values. Most of this effect, we believe, is short-term and occurs as a result of the market's uncertainty as to what critical habitat designation requires.

(6l) Comment: A commenter questioned whether habitat designation would provide the following benefits: (1) Preservation of a resource; (2) existence value; (3) enhancement of scenic beauty; and (4) bequest value.

Service Response: In some instances the designation of critical habitat may result in additional benefits associated with the preservation of the species and its associated habitat. Economists have traditionally recognized that such benefits can be broken down into the above categories. However, in the particular case of the designation of critical habitat for the Alameda whipsnake, these additional benefits are unlikely to occur because the designation of critical habitat does not provide any additional protection to the species beyond that provided by the listing of the whipsnake as a Federally protected species.

(6m) Comment: The San Francisco Public Utilities Commission believes that designation of critical habitat will lead to additional costs as they will need to determine presence/absence on new project areas.

Service Response: The Service does not anticipate any additional requirements beyond those required upon listing the Alameda whipsnake as threatened.

Based on comments we received on the proposed rule, we made minor modifications to the critical habitat boundary to more adequately reflect the existence of urban development occurring along the periphery of the critical habitat boundary. Specifically, we made minor changes to the southern boundary of unit 4 to exclude two existing ranchettes that occur in the northern section of Tassajara Valley. In addition, we made minor adjustments to the critical habitat boundary in the northwestern section of unit 6 to exclude existing facilities that are owned by Lawrence Berkeley National Laboratory.

Section 4(b)(2) of the Act requires us to designate critical habitat on the basis of the best scientific and commercial data available and to consider the economic and other relevant impacts of designating a particular area as critical habitat. We may exclude areas from critical habitat upon a determination that the benefits of such exclusions outweigh the benefits of specifying such areas as critical habitat. We cannot exclude such areas from critical habitat when such exclusion will result in the extinction of the species.

The economic effects already caused by the listing of the Alameda whipsnake as threatened is the baseline upon which we analyze the economic effects of critical habitat. The critical habitat economic analysis examined the incremental economic and conservation effects of designating a particular area. The economic effects of a designation were evaluated by measuring changes in national, regional, or local indicators in the area considered for designation. We prepared an analysis of the economic effects of the proposed Alameda whipsnake critical habitat designation in draft form and made the draft available for public review (June 23, 2000; 65 FR 39117). We concluded in the final analysis, which included review and incorporation of public comments, that no economic impacts are expected from critical habitat designation above and beyond that already imposed by listing the Alameda whipsnake. Potential economic effects of critical habitat designation are limited to impacts on activities funded, authorized, or carried out by a Federal agency. These activities would be subject to section 7 consultation if they may affect critical habitat. However, activities that may affect an area considered for critical habitat usually affect listed species, and would thus already be subject to section 7 consultation. Also, changes or minimizing measures that might increase the cost of the project would be imposed only as a result of critical habitat if the project would adversely modify or destroy that critical habitat. In most cases, a project that would adversely modify or destroy critical habitat would also likely jeopardize the continued existence of the species. In such a case, reasonable and prudent alternatives to avoid jeopardizing the species should also avoid adverse modification of critical habitat. The areas designated as critical habitat are considered occupied by the Alameda whipsnake. Since the habitat is in geographical areas occupied by the species, Federal agencies are already required to consult with us due to the listing of the species. Thus, regulatory burdens or additional cost due to the critical habitat designation for the whipsnake are not likely to exceed those already resulting from the species' listing.

A copy of the economic analysis is included in our administrative record and may be obtained by contacting the Sacramento Fish and Wildlife Office (see ADDRESSES section).

Under Executive Order 12866, this document is a significant rule and has been reviewed by the Office of Management and Budget (OMB), under Executive Order 12866.

(a) This rule will not have an annual economic effect of $100 million or more or adversely affect an economic sector, productivity, jobs, the environment, or other units of government.

The areas designated as critical habitat are currently occupied by the Alameda whipsnake. Under the Endangered Species Act, critical habitat may not be destroyed or adversely modified by a Federal agency action; the Act does not impose any restrictions on non-Federal persons unless they are conducting activities funded or otherwise sponsored or permitted by a Federal agency (see Table 2 below). Section 7 requires Federal agencies to ensure that they do not jeopardize the continued existence of the species. Based upon our experience with the species and its needs, we conclude that any Federal action or authorized action that could potentially cause an adverse modification of critical habitat would currently be considered as “jeopardy” under the Act. Accordingly, the designation of currently occupied areas as critical habitat does not have any incremental impacts on what actions may or may not be conducted by Federal agencies or non-Federal persons that receive Federal authorization or funding. Non-Federal persons that do not have a Federal “sponsorship” of their actions are not restricted by the designation of critical habitat (however, they continue to be bound by the provisions of the Act concerning “take” of the species).

(b) This rule will not create inconsistencies with other agencies' actions. As discussed above, Federal agencies have been required to ensure that their actions do not jeopardize the continued existence of the Alameda whipsnake since the listing in 1997. The prohibition against adverse modification of critical habitat is not expected to impose any additional restrictions to those that currently exist because all designated critical habitat is occupied. Because of the potential for impacts on other Federal agencies activities, we will continue to review this action for any inconsistencies with other Federal agency actions.

(c) This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. Federal agencies are currently required to ensure that their activities do not jeopardize the continued existence of the species and, as discussed above, we do not anticipate that the adverse modification prohibition (from critical habitat designation) will have any incremental effects.

(d) This rule will not raise novel legal or policy issues. The rule follows the requirements for determining critical habitat contained in the Endangered Species Act.

In the economic analysis (under section 4 of the Act), we determined that designation of critical habitat will not have a significant effect on a substantial number of small entities. As discussed under Regulatory Planning and Review above, this rule is not expected to result in any restrictions in addition to those currently in existence. As indicated on Table 1 (see Critical Habitat section), we designated property owned by Federal, State, and local governments, and private property.

Within these areas, the types of Federal actions or authorized activities that we have identified as potential concerns are:

(1) Sale, exchange, or lease of lands owned by the Bureau of Land Management or the Department of Energy;

(2) Regulation of activities affecting waters of the United States by the Army Corps of Engineers under section 404 of the Clean Water Act;

(3) Regulation of water flows, water delivery, damming, diversion, and channelization by the Bureau of Reclamation and the Army Corps of Engineers;

(4) Regulation of grazing, recreation, or mining by the Bureau of Land Management;

(5) Funding and implementation of disaster relief projects by FEMA;

(6) Funding and regulation of road construction by the Federal Highways Administration;

(7) Clearing of vegetation by the Department of Energy; and

(8) The cleanup of toxic waste and superfund sites under the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation, and Liability Act by the U.S. Environmental Protection Agency.

Many of these activities sponsored by Federal agencies within designated critical habitat areas are carried out by small entities (as defined by the Regulatory Flexibility Act) through contract, grant, permit, or other Federal authorization. As discussed above, these actions are currently required to comply with the listing protections of the Act, and the designation of critical habitat is not anticipated to have any additional effects on these activities.

For actions on non-Federal property that do not have a Federal connection (such as funding or authorization), the current restrictions concerning take of the species remain in effect, and this rule will have no additional restrictions.

In the economic analysis, we determined that designation of critical habitat will not cause (a) any effect on the economy of $100 million or more, (b) any increases in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions, or (c) any significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

Under the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ):

(a) This rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. Small governments will be affected only to the extent that any of their actions involving Federal funding or authorization must not destroy or adversely modify the critical habitat. However, as discussed above, these actions are currently subject to equivalent restrictions through the listing protections of the species, and no further restrictions are anticipated to result from critical habitat designation.

(b) This rule will not produce a Federal mandate of $100 million or greater in any year, i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

Under Executive Order 12630, the rule does not have significant takings implications. A takings implication assessment is not required. As discussed above, the designation of critical habitat affects only Federal agency actions. The rule will not increase or decrease the current restrictions on private property concerning take of the Alameda whipsnake. Due to current public knowledge of the species' protection, the prohibition against take of the species both within and outside of the designated areas, and the fact that critical habitat provides no incremental restrictions, we do not anticipate that long-term property values will be affected by the critical habitat designation.

Under Executive Order 13132, the rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior and Department of Commerce policy, the Service requested information from and coordinated development of this critical habitat proposal with appropriate State resource agencies in California, as well as during the listing process. We will continue to coordinate any future designation of critical habitat for the Alameda whipsnake with the appropriate State agencies. The designation of critical habitat for the Alameda whipsnake imposes no additional restrictions to those currently in place and, therefore, has little incremental impact on State and local governments and their activities. The designation may have some benefit to these governments in that the areas essential to the conservation of the species are more clearly defined, and the primary constituent elements of the habitat necessary to the survival of the species are specifically identified. While making this definition and identification does not alter where and what federally sponsored activities may occur, doing so may assist these local governments in long-range planning (rather than waiting for case-by-case section 7 consultations to occur).

Under Executive Order 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have made every effort to ensure that this final determination contains no drafting errors, provides clear standards, simplifies procedures, reduces burden, and is clearly written so that litigation risk is minimized.

This rule does not contain any information collection requirements for which Office of Management and Budget approval under the Paperwork Reduction Act is required.

We have determined that we do not need to prepare an Environmental Assessment and/or an Environmental Impact Statement as defined by the National Environmental Policy Act of 1969 in connection with regulations adopted under section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

Under the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951) and the Department of the Interior's requirement at 512 DM 2 we understand that recognized Federal Tribes must be related to on a Government-to-Government basis. The designation of critical habitat for the Alameda whipsnake does not contain any Tribal lands or lands that we have identified as impacting Tribal trust resources.

A complete list of all references cited in this rule is available upon request from the Sacramento Fish and Wildlife Office (see ADDRESSES section).

The primary authors of this notice are Jason Davis and Heather Bell, Sacramento Fish and Wildlife Office (see ADDRESSES section).