Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification (e.g., reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-357-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-357-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The FAA has received several reports of oscillations and/or over steering of the nose wheel steering system without a “STEER BY WIRE FAIL” message being annunciated. All but one of these events occurred during landing on certain Gulfstream Model G-V series airplanes. None of these airplanes left the runway, but some have experienced minor nose wheel tire damage. An investigation revealed that the cause of these events was moisture intrusion into the rotary variable displacement transducer (RVDT) inside the steering actuator. The pedal steering and hand tiller use the RVDT to determine the position of the nose wheel. At cold temperatures, the moisture can freeze and cause the RVDT feedback shaft to bind. This binding causes nose wheel position data errors of 10 to 12 degrees to be transmitted to the tiller, which could result in oversteering of the airplane.

Loss of nose wheel steering control (i.e., unresponsive steering or uncommanded oscillations) without a corresponding “STEER BY WIRE FAIL” message annunciation could result in an over steering condition. If an over steering condition were to occur during landing (i.e., high speed conditions), the airplane could depart the runway.

The manufacturer has advised the FAA that all operators, worldwide, of the subject Gulfstream Model G-V series airplanes, serial numbers 501 through 605 inclusive, have replaced all nose wheel steering actuators, part number (P/N) 1159SCL500-41, with new or restored actuators, P/N 1159SCL500-41 Rev. D, per Gulfstream Alert Customer Bulletin 9A, dated September 25, 2000. The upgraded steering actuator, P/N 1159SCL500-41 Rev. D, is one that has been sealed with an improved sealing procedure. The manufacturer also has advised the FAA that it currently is developing a redesigned steering actuator, which prevents moisture intrusion and incorporates an improved spring design to prevent the RVDT shaft from binding.

Therefore, until this redesigned steering actuator is developed, approved, and available, the FAA has determined that the steering actuator, P/N 1159SCL500-41 Rev. D, needs to be replaced with an actuator having the same P/N every 450 flight hours or 12 months, whichever occurs first, to address the identified unsafe condition. The FAA also has determined that, in addition to airplanes having serial numbers 501 through 605 inclusive, airplanes having serial numbers subsequent to 605 (in production airplanes) will be equipped with steering actuator, P/N 1159SCL500-41 Rev. D, and therefore, should be subject to the requirement of the proposed AD.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require repetitively replacing the nose wheel steering actuator, P/N 1159SCL500-41 Rev. D, with a new or reworked actuator having the same part number. The repetitive replacement would be required to be accomplished per the Gulfstream Maintenance Manual.

This is considered to be interim action until final action is identified, at which time the FAA may consider further rulemaking.

There are approximately 94 Model G-V series airplanes of the affected design in the worldwide fleet. The FAA estimates that 89 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 6 work hours per airplane to accomplish the proposed actions, and that the average labor rate is $60 per work hour. Required parts would cost approximately $15,000 per airplane. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $1,367,040, or $15,360 per airplane, per replacement.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification (e.g., reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-207-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-207-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The FAA has received a report indicating that overheating of the water heater in an aft lavatory caused heat and smoke damage on a McDonnell Douglas Model DC-9-32 series airplane. The water heater was installed per Hexcel Supplemental Type Certificate (STC) SA4371NM, which was approved by the Seattle Aircraft Certification Office. Investigation revealed that the affected water heater was not grounded correctly. Further investigation revealed that the water heater in the other aft lavatory on the airplane also was not grounded correctly. The missing ground wires should have been installed during the installation of the lavatory on the airplane. If not corrected, in the event of an internal short in the water heater, this condition could result in heat or smoke damage or a fire on the airplane. Incorrect grounding could also cause an electric shock to a person who touches the water heater.

The FAA has reviewed and approved Hexcel Service Bulletin 110000-25-001, dated March 31, 2000, which describes procedures for a one-time general visual inspection to determine if ground wires are installed between the top of the water heater and the sink unit, and between the sink unit and the mounting flange of the toilet flush timer module, on each lavatory. The service bulletin also describes procedures for installation of a ground wire assembly if any ground wire is not installed. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously, except as discussed below.

Operators should note that, although the service bulletin recommends accomplishing the inspection at the next convenience maintenance check, the FAA has determined that a more specific compliance time is needed to ensure that the identified unsafe condition is addressed in a timely manner. In developing an appropriate compliance time for this AD, the FAA considered not only the manufacturer's recommendation, but the degree of urgency associated with addressing the subject unsafe condition, the average utilization of the affected fleet, and the time necessary to perform the inspection. In light of all of these factors, the FAA finds an 18-month compliance time for completing the proposed actions to be warranted, in that it represents an appropriate interval of time allowable for affected airplanes to continue to operate without compromising safety.

There are approximately 30 airplanes of the affected design in the worldwide fleet. The FAA estimates that 20 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 1 work hour per airplane to accomplish the proposed inspection, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $1,200, or $60 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification (e.g., reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed action. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-160-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-160-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

On September 10, 1999, the FAA issued AD 99-19-40, amendment 39-11327 (64 FR 51190, September 22, 1999), applicable to certain Model A310 and Model A300-600 series airplanes. That AD requires a detailed visual inspection to detect damage to the terminal lugs on the 12XC and 15XE connectors and the mounting lugs on the 15XE connector; and repair or replacement of the terminal lugs or the 15XE connector with new parts, if necessary. That action was prompted by issuance of mandatory continuing airworthiness information by a foreign civil airworthiness authority. The requirements of that AD are intended to detect and correct broken terminal and mounting lugs on the 12XC and the 15XE connectors in the 101VU panel in the avionics compartment, which could result in loss of electrical power from the standby generator.

In the Notice of Proposed Rule Making that preceded issuance of AD 99-19-40, the FAA stated that preliminary indications were that the mounting configuration of connector 12XE was transmitting vibration to the terminal lugs of both connectors and to the mounting lugs of connector 15XE. Subsequently, in the preamble to AD 99-19-40, the FAA stated that the actions required by that AD were considered “interim action” until final action was identified, at which time the agency might consider further rulemaking.

Since the issuance of that AD, laboratory analyses and flight tests conducted by Airbus have shown that excessive vibration is generated by the mounting configuration of the 15XE connector. That condition, if not corrected, could result in breakage of the mounting lugs on the 15XE connector and the terminal lugs on the 15XE and 12XC connectors in the 101VU panel in the avionics compartment, resulting in loss of electrical power from the standby generator to the AC essential bus. Therefore, the FAA has determined that further rulemaking action is indeed necessary, and this proposed AD follows from that determination.

Airbus has issued Service Bulletins A310-24-2080 (for Model A310 series airplanes) and A300-24-6070 (for Model A300-600 series airplanes), both dated December 15, 1999. The service bulletins describe procedures for replacing the mounting bracket for the 15XE connector, modifying the cable attachment adjacent to the connector, and replacing certain terminal lugs on the 15XE connector with lugs having a thicker contact area. The modification is intended to eliminate excessive vibration and prevent the possible consequent breakage of the mounting lugs on the 15XE connector and the terminal lugs on the 15XE and 12XC connectors. The Direction Generale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, classified these service bulletins as mandatory and issued French airworthiness directive 2000-145-306(B), dated April 5, 2000, in order to ensure the continued airworthiness of these airplanes in France.

These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

An unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States. The proposed AD would supersede AD 99-19-40 to continue to require inspecting the terminal lugs on the 12XC and 15XE connectors and the mounting lugs on the 15XE connectors for damage, and corrective action, if necessary. The proposed AD would add requirements for installation of a new mounting bracket for the 15XE connector, modification of the cable attachment adjacent to the connector, and replacement of certain terminal lugs on the 15XE connector with lugs having a thicker contact area. The proposed AD would require accomplishment of the actions specified in the service bulletins described previously, as applicable.

Sections of AD 99-19-40 that pertain to applicability identify certain Airbus modifications by incorrect numbers. Those modification numbers have been corrected in this proposed AD.

Because of this error in modification numbers in AD 99-19-40, it is possible that certain airplanes—Model A310 series airplanes on which Airbus Modification 05910 had been installed and Model A300-600 series airplanes on which Airbus Modification 06213 had been installed—did not comply with that AD. Therefore, the requirements of AD 99-19-40 are re-stated in the proposed AD. The compliance time for the inspection would be reset from the effective date of the AD.

Operators of these airplanes who did comply with the requirements of AD 99-19-40 need not repeat the detailed visual inspections and corrective action required by that AD. However, such operators who elected to repair rather than replace a 15XE connector with damaged mounting lugs must continue to perform periodic inspections and periodic re-repairs of the connector until it is replaced with a new 15XE connector.

This proposed AD and AD 99-19-40 are applicable to the same airplane models. However, the model designation of the affected airplanes has been revised to conform to the type certificate data sheet listing for these airplanes. This proposed AD identifies these airplanes as “Model A310, and Model A300 B4-600, A300 B4-600R, and A300 F4-600R series airplanes.”

There are approximately 109 airplanes of U.S. registry that would be affected by this proposed AD. The following information describes the estimated cost impact on U.S. operators of the proposed actions:

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification (e.g., reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-159-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-159-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The FAA has received reports indicating that latch assemblies on the emergency escape slides have failed on several Boeing Model 727, 737, 757-200, 757-200CB, and 757-300 series airplanes. Several operators have reported failures due to corrosion of the spring pins in the latch assemblies, while others have reported finding discrepant (e.g., deformed or incorrectly soldered) split rings attaching the chain assembly to the latch block assembly. Failed spring pins or discrepant split rings in the escape slide latch assembly could result in failure of the escape slide latch assembly in service, and consequent failure of the escape slide to deploy.

The FAA has also received reports that, during functional tests of escape slides prior to delivery of Boeing Model 737-600, -700, and -800 series airplanes, the trigger housing of the inflation cylinder of an escape slide caught on the jumper cable of the escape slide compartment. The interference between these two parts caused the escape slide to fail to completely drop from the door before inflating, which resulted in the escape slides failing to inflate correctly.

Failure of an escape slide to deploy or inflate correctly in an emergency situation could result in the slide being unusable during an emergency evacuation and consequent injury to passengers or airplane crewmembers.

The FAA has reviewed and approved the following Boeing Service Bulletins:

The modification of the escape slide latch assembly for all airplanes involves replacement of existing spring pins with new spring pins made from more corrosion-resistant material. For certain airplanes, the modification also involves replacement of the existing split ring, which attaches the chain assembly to the latch block assembly, with a clevis.

Boeing Service Bulletin 737-25-1403 refers to BF Goodrich Service Bulletin 5A3307-25-309, dated October 29, 1999, as an additional source of service information for the installation of a cover assembly on the trigger housing of the inflation cylinder on the escape slides on Model 737-600, -700, and -800 series airplanes.

Accomplishment of the actions specified in the applicable service bulletins is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the applicable service bulletins described previously, except as discussed below.

Operators should note that, although the service bulletins do not recommend a specific compliance time, the FAA has determined that a specific compliance time is needed to ensure that the identified unsafe condition is addressed in a timely manner. In developing an appropriate compliance time for this proposed AD for these airplanes, the FAA considered not only the manufacturer's recommendation, but the degree of urgency associated with addressing the subject unsafe condition, and the average utilization of the affected fleets.

Considering these factors, the FAA finds a 36-month compliance time for completing the proposed actions on Model 727, 737-100, 737-200, 737-300, 737-400, 737-500, 757-200, 757-200CB, and 757-300 series airplanes to be warranted, in that this represents an appropriate interval of time allowable for affected airplanes to continue to operate without compromising safety.

For Model 737-600, -700, and -800 series airplanes, the FAA finds an 18-month compliance time for completing the proposed actions to be warranted. In developing an appropriate compliance time for this proposed AD for these airplanes, the FAA considered not only the manufacturer's recommendations for installing a cover assembly on the trigger housing of the inflation cylinder on the escape slides, but also the degree of urgency associated with failure of an escape slide to inflate correctly due to interference between the trigger housing of the inflation cylinder and the jumper cable of the escape slide compartment. Considering these factors, and the fact that it will be convenient for affected operators to modify the escape slide latch assembly at the same time they install the cover assembly, the FAA has determined that 18 months represents an appropriate interval for affected airplanes to continue to operate without compromising safety.

There are approximately 5,759 airplanes of the affected design in the worldwide fleet. The FAA estimates that 2,906 airplanes of U.S. registry would be affected by this proposed AD. The following table shows the estimated cost impact for airplanes affected by this AD. “Action 1” is the modification of the escape slide latch assembly, and “Action 2” is the installation of a cover assembly on the trigger housing of the inflation cylinder on the escape slide. The average labor rate is $60 per work hour. The cost impact is as follows:

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification (e.g., reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-330-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-330-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

On November 8, 2000, the FAA issued AD 2000-23-16, amendment 39-11988 (65 FR 69862, November 21, 2000), applicable to certain Boeing Model 747 series airplanes, to require repetitive inspections and torque checks of the hanger fittings and strut forward bulkhead of the forward engine mount and adjacent support structure, and corrective actions, if necessary. (On December 21, 2000, a correction to that AD was published in the Federal Register (65 FR 80301).) That action also provides for optional terminating action for the repetitive inspections and checks. That action was prompted by reports indicating the detection of loose fasteners of the hanger fittings and strut forward bulkhead of the forward engine mount. The requirements of that AD are intended to detect and correct loose fasteners and associated damage to the hanger fittings and bulkhead of the forward engine mount, which could result in separation of the engine from the airplane.

In the preamble to AD 2000-23-16, the FAA indicated that the actions required by that AD were considered “interim action” and that it was considering a separate rulemaking action to mandate accomplishment of the terminating action described in Part 6 of Boeing Alert Service Bulletin 747-54A2203, dated August 31, 2000, which would terminate the repetitive inspections and checks required by that AD. The FAA also indicated that it was considering mandating the torque checks described in Part 3 of the alert service bulletin. The FAA now has determined that further rulemaking action is indeed necessary, and this proposed AD follows from that determination.

The FAA previously reviewed and approved Boeing Alert Service Bulletin 747-54A2203, dated August 31, 2000, which describes procedures for repetitive detailed visual inspections and torque checks of the hanger fittings and strut forward bulkhead of the forward engine mount and adjacent support structure to detect loose fasteners, cracking, and/or damage; and corrective actions, if necessary. The corrective actions consist of a torque check, before further flight, if any loose fasteners are detected; rework of loose hanger fittings and damaged or cracked fittings that are within the allowable rework limits; and replacement if damage or cracks are detected that are outside the allowable rework limits.

If certain damage of the strut forward bulkhead, bulkhead chords, lower spar web, or bulkhead channel is detected, the alert service bulletin specifies contacting Boeing for rework/replacement instructions. The alert service bulletin also describes procedures for a terminating action, which eliminates the need for the repetitive inspections and checks. The terminating action involves rework or replacement of the fittings.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would supersede AD 2000-23-16 to continue to require repetitive inspections and torque checks of the hanger fittings and strut forward bulkhead of the forward engine mount and adjacent support structure, and corrective actions, if necessary. This proposed AD would mandate certain new repetitive torque checks and the previously optional terminating action. The actions would be required to be accomplished in accordance with the alert service bulletin described previously, except as discussed below.

Operators should note that, although the effectivity section of the alert service bulletin includes Boeing Model 747 series airplanes having serial numbers 21048 and 20887, these airplanes have been modified and are now powered by General Electric CF6-50 series engines, and are not affected by the actions required by this proposed rule.

Operators also should note that, although the alert service bulletin specifies that the manufacturer may be contacted for certain rework and/or replacement instructions, this AD requires such rework and/or replacement to be done in accordance with a method approved by the FAA, or in accordance with data meeting the type certification basis of the airplane approved by a Boeing Company Designated Engineering Representative who has been authorized by the FAA to make such findings.

There are approximately 366 airplanes of the affected design in the worldwide fleet. The FAA estimates that 115 airplanes of U.S. registry would be affected by this proposed AD.

The detailed visual inspections that are currently required by AD 2000-23-16 take approximately 8 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the inspections currently required by the existing AD on U.S. operators is estimated to be $55,200, or $480 per airplane, per inspection.

The torque checks that are currently required by AD 2000-23-16 take approximately 24 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the torque checks currently required by the existing AD on U.S. operators is estimated to be $165,600, or $1,440 per airplane, per check.

The new torque checks proposed in this AD action also would take approximately 8 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this torque check on U.S. operators is estimated to be $55,200, or $480 per airplane, per check.

The terminating action proposed in this AD action would take approximately 24 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Required parts would cost approximately $300 per airplane. Based on these figures, the cost impact of the terminating action proposed by this AD on U.S. operators is estimated to be $200,100, or $1,740 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the current or proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification (e.g., reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-327-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-327-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The FAA has received reports from the manufacturer indicating several operators have found cracking in the body buttock line (BBL) 0.07 floor beams. On airplanes having between 27,000 and 55,000 total flight cycles, cracks were found in the upper chord at body station (BS) 663. On airplanes having between 31,000 and 51,000 total flight cycles, cracks were found in the web at BS 663. On airplanes having between 18,000 and 54,000 total flight cycles, cracks were found in the lower chord at BS 727. On airplanes having between 23,000 and 39,000 total flight cycles, cracks were found in the web at BS 706 through 711. Investigation revealed that the cracks were caused by fatigue resulting from pressurization flexure. Failure of the main deck floor beams at certain body stations due to fatigue cracking could result in rapid decompression and consequent reduced controllability of the airplane.

The FAA has reviewed and approved Boeing Service Bulletin 737-57-1210, dated April 4, 1991, which describes procedures for repetitive visual inspections of the main deck floor beams located between BS 650 and BS 730, around BS 710 and BS 727, and at BS 650 through 675, to find cracking; and repair of any cracking found. If no cracking is found after doing the visual inspection, the service bulletin provides an option for a one-time eddy current inspection of the fastener holes. If no cracking is found during the eddy current inspection, doing the modification (change) of the applicable floor beams would end the repetitive visual inspections for that area. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously, except as discussed below.

Operators should note that, although the service bulletin specifies that the manufacturer may be contacted for disposition of certain repair conditions, this proposed AD requires the repair of those conditions to be done per a method approved by the FAA, or per data meeting the type certification basis of the airplane approved by a Boeing Company Designated Engineering Representative who has been authorized by the FAA to make such findings.

Operators also should note that the FAA has determined that the repetitive inspections proposed by this AD can be allowed to continue instead of doing a terminating action. In making this determination, the FAA considers that, in this case, long-term continued operational safety will be adequately assured by doing the repetitive inspections to find cracking before it represents a hazard to the airplane.

There are approximately 935 airplanes of the affected design in the worldwide fleet. The FAA estimates that 340 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 8 work hours per airplane to do the proposed inspection, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $163,200, or $480 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet done any of the proposed requirements of this AD action, and that no operator would do those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to do the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

Should an operator elect to do the optional terminating action rather than continue the repetitive inspections, it would take approximately 96 work hours per airplane to do the change, at an average labor rate of $60 per work hour. Required parts would cost between $218 and $1,426 per airplane. Based on these figures, the cost impact of this optional terminating action is estimated to be between $5,978 and $7,186 per airplane.

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification (e.g., reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-317-AD.” The postcard will be date-stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-317-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

On July 30, 1998, the FAA issued AD 98-16-19, amendment 39-10695 (63 FR 42210, August 7, 1998), applicable to all Boeing Model 747 series airplanes. That AD requires, for certain airplanes, revising the Airplane Flight Manual (AFM) to advise the flightcrew of limitations on dry (no fuel) operation of the override/jettison pumps of the center wing fuel tank. That AD also requires repetitive inspections for wear or damage of the inlet check valves and inlet adapters of the override/jettison pumps, and replacement of the check valves and pumps with new or serviceable parts, if necessary. For affected airplanes, such replacement allows the AFM revision to be removed. That AD was prompted by a report that inlet adapters of override/jettison pumps were found to be worn excessively, which allowed contact to occur between the inlet check valve and the inducer. The requirements of that AD are intended to ensure that the flightcrew is advised of the hazards of dry operation of the override/jettison pumps of the center wing fuel tank, and to detect and correct wear or damage to the inlet check valves and inlet adapters of the override/jettison pumps. Such conditions, if not corrected, could result in a fire or explosion in the fuel tank during dry operation.

The preamble to AD 98-16-19 stated that the FAA considered the requirements of that AD to be “interim action” and that the manufacturer was developing a modification to positively address the unsafe condition. The FAA indicated that it might consider further rulemaking action once the modification was developed, approved, and available. The manufacturer now has developed such a modification, and the FAA has determined that further rulemaking action is indeed necessary. This proposed AD follows from that determination.

Also, the existing AD applies to all Boeing Model 747 series airplanes. Boeing has informed the FAA that the approved modification will be installed on all Model 747 series airplanes having line number 1252 and subsequent. The FAA has determined that installation of the modification during production is adequate to address the unsafe condition. Therefore, the FAA finds that the actions required by the existing AD and the actions in this proposed AD are not necessary for airplanes modified in production, which leads the FAA to remove those airplanes from the applicability of this proposed AD.

The FAA has reviewed and approved Boeing Service Bulletin 747-28A2212, Revision 3, dated August 3, 2000. That service bulletin describes actions identical to those in Boeing Alert Service Bulletin 747-28A2212, Revision 2, dated May 14, 1998, which was referenced in the existing AD as the appropriate source of service information. Revision 3 of the service bulletin also describes procedures for a terminating action that entails rework of the existing pump housing and impeller motor assembly, which includes replacement of the existing inlet check valve and inlet adapter with new, improved parts, and reidentification of the pump housing and impeller motor assembly with new part numbers. This rework eliminates the need for the currently required repetitive inspections. Accomplishment of the actions specified in Revision 3 of the service bulletin is intended to adequately address the identified unsafe condition.

Revision 3 of the service bulletin refers to Crane Hydro-Aire Service Bulletins 60-703-28-33, 60-703-28-35, 60-721-28-5, and 60-723-28-5, as secondary sources of information for the rework of the pump housing and impeller motor assembly. The FAA has reviewed Revision 1 of these service bulletins, all dated November 20, 2000, and finds them acceptable secondary sources of information for the rework.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would supersede AD 98-16-19 to continue to require repetitive inspections for wear or damage of the inlet check valves and inlet adapters of the override/jettison pumps, and corrective actions, if necessary. This proposed AD would also continue to require, for certain airplanes, revising the Airplane Flight Manual (AFM) to advise the flightcrew of limitations on dry (no fuel) operation of the override/jettison pumps of the center wing fuel tank, until the repetitive inspections described above have been done. This action would apply to fewer airplanes than the existing AD, and would add a new requirement for rework of the existing pump housing and impeller motor assembly, which would end the repetitive inspection requirement. The actions would be required to be accomplished in accordance with the service bulletin described previously, except as discussed below.

As stated above, Revision 3 of the service bulletin describes procedures for rework of the existing pump housing and impeller motor assembly, which gets rid of the need for the repetitive inspections. The service bulletin provides for the rework as optional. The FAA finds it necessary to require operators to do this rework. The decision to propose the rework is based on the FAA's position that modifications or design changes to remove the source of a problem will ensure continued operational safety over the long term better than repetitive inspections. The view that repetitive inspections may be inadequate to ensure the safety of the transport airplane fleet, along with consideration of the human factors associated with repetitive inspections, has led the FAA to place less emphasis on special procedures, such as repetitive inspections, and more emphasis on design improvements.

In developing the 18-month compliance time for this action, the FAA considered these factors:

• The urgency of the subject unsafe condition,

• The amount of time it takes to do the replacement (10 work hours), and

• The amount of time needed to allow most operators to do the replacement during normal scheduled maintenance.

The FAA finds that 18 months is the optimal amount of time that will allow the rework to be done on all affected airplanes without compromising flight safety.

There are approximately 1,100 airplanes of the affected design in the worldwide fleet. The FAA estimates that 250 airplanes of U.S. registry would be affected by this proposed AD.

For affected airplanes, the AFM revision currently required by AD 98-16-19 takes approximately 1 work hour per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the FAA estimates that the cost impact of this action is $60 per airplane.

The inspections currently required by AD 98-16-19 take approximately 12 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the FAA estimates that the cost impact of this action on U.S. operators is $180,000, or $720 per airplane, per inspection cycle.

The rework proposed in this AD action would take approximately 6 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Required parts would cost approximately $1,978 per airplane. Based on these figures, the FAA estimates that the cost impact of the proposed replacement on U.S. operators is $584,500, or $2,338 per airplane. The FAA has been advised that manufacturer warranty remedies may be available for labor costs and parts associated with accomplishing the proposed rework. Therefore, the future economic cost impact of this action on U.S. operators may be less than the cost impact figure indicated above.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Section 643(b) provides a definition of the term income for purposes of subparts A through D of part I of subchapter J of the Internal Revenue Code (Code) . The term income, when not modified by any other term, means the amount of income of the trust or estate determined under the terms of the governing instrument and applicable local law. Section 1.643(b)-1 further provides that trust provisions that depart fundamentally from the concepts of local law in determining what constitutes income will not be recognized.

These statutory and regulatory provisions date back to a time when, under state statutes, dividends and interest were considered income and were allocated to the income beneficiary while capital gains were allocated to the principal of the trust. Changes in the types of available investments and in investment philosophies have caused states to revise, or to consider revising, these traditional concepts of income and principal.

The prudent investor standard for managing trust assets has been enacted by many states and encourages fiduciaries to adopt an investment strategy designed to maximize the total return on trust assets. Under this investment strategy, trust assets should be invested for total positive return, that is, ordinary income plus appreciation, in order to maximize the value of the trust. Thus, under certain economic circumstances, equities, rather than bonds, would constitute a greater portion of the trust assets than they would under traditional investment standards.

One of the concerns with shifting trust investments toward equities and away from bonds is the potential adverse impact on the income beneficiary. Based on the traditional concepts of income and principal, the income beneficiary is entitled only to the dividends and interest earned by the trust assets. The dividend return on equities as a percentage of their value traditionally has been substantially less than the interest return on bonds.

To ensure that the income beneficiary is not penalized if a trustee adopts a total return investment strategy, many states have made, or are considering making, revisions to the definitions of income and principal. Some state statutes permit the trustee to make an equitable adjustment between income and principal if necessary to ensure that both the income beneficiary and the remainder beneficiary are treated impartially, based on what is fair and reasonable to all of the beneficiaries. Thus, a receipt of capital gains that previously would have been allocated to principal may be allocated by the trustee to income if necessary to treat both parties impartially. Conversely, a receipt of dividends or interest that previously would have been allocated to income may be allocated by the trustee to principal if necessary to treat both parties impartially.

Other states are proposing legislation that would allow the trustee to pay a unitrust amount to the income beneficiary in satisfaction of that beneficiary's right to the income from the trust. This unitrust amount will be a fixed percentage, sometimes required to be within a range set by state statute, of the fair market value of the trust assets determined annually.

Questions have arisen concerning how these state statutory changes affect the definition of income provided in section 643(b) and the other Code provisions that rely on the section 643(b) definition of income. This definition of income affects trusts including, but not limited to, ordinary trusts, charitable remainder trusts, pooled income funds, and qualified subchapter S trusts.

In addition, trusts that qualify for the gift or estate tax marital deduction must pay to the spouse all the income from the property. All the income is considered paid to the spouse if the effect of the trust is to give the spouse substantially that degree of beneficial enjoyment of the trust property that the principles of trust law accord to a person who is unqualifiedly designated as the life beneficiary of a trust. Section 25.2523(e)-1(f) of the Gift Tax Regulations and § 20.2056(b)-5(f) of the Estate Tax Regulations. Questions have arisen whether the spouse is entitled to all the income from the property in a state that permits equitable adjustments or unitrust payments.

Similarly, questions have arisen as to whether an otherwise exempt trust which uses equitable adjustments or unitrust payments will be subject to the generation-skipping transfer tax provisions of chapter 13 of the Code.

The proposed regulations will amend the definition of income under § 1.643(b)-1 to take into account certain state statutory changes to the concepts of income and principal. Under the proposed regulations, trust provisions that depart fundamentally from traditional concepts of income and principal (that is, allocating ordinary income to income and capital gains to principal) will generally continue to be disregarded, as they are under the current regulations. However, amounts allocated between income and principal pursuant to applicable state law will be respected if state law provides for a reasonable apportionment between the income and remainder beneficiaries of the total return of the trust for the year, taking into account ordinary income, capital gains, and, in some situations, unrealized appreciation. For example, a state law that provides for the income beneficiary to receive each year a unitrust amount of between 3% and 5% of the annual fair market value of the trust assets is a reasonable apportionment of the total return of the trust. Similarly, a state law that permits the trustee to make equitable adjustments between income and principal to fulfill the trustee's duty of impartiality between the income and remainder beneficiaries is a reasonable apportionment of the total return of the trust.

In addition, an allocation of capital gains to income will be respected under certain circumstances. Such an allocation will be respected if directed by the terms of the governing instrument and applicable local law. Similarly, if a trustee, pursuant to a discretionary power granted to the trustee by local law or by the governing instrument (if not inconsistent with local law), allocates capital gains to income, the allocation will be respected, provided the power is exercised in a reasonable and consistent manner.

The proposed changes to the regulations will permit trustees to implement a total return investment strategy and to follow the applicable state statutes designed to treat the income and remainder beneficiaries impartially. At the same time, the limitations imposed by the proposed regulations ensure that the Code provisions relying on the definition of income under section 643(b) are not undermined by an unlimited ability of the trustee to allocate between income and principal.

A special rule is proposed to be added to the regulations covering pooled income funds to address the problems arising from the potential application of the new state statutes to these funds. A pooled income fund as defined in section 642(c)(5) is a split-interest trust created and maintained by certain types of charitable organizations. Noncharitable beneficiaries receive the income from the commingled fund during their lives and the charitable organization receives the remainder interests. The income that is to be paid to the noncharitable beneficiaries is income as defined in section 643(b). § 1.642(c)-5(i).

A pooled income fund is a trust subject to taxation under section 641. It is entitled to a distribution deduction under section 661 for income distributed to the noncharitable beneficiaries. In addition, it receives a charitable deduction under section 642(c)(3) for any amount of net long-term capital gain which pursuant to the terms of the governing instrument is permanently set aside for charitable purposes. A pooled income fund is taxed on any net short-term capital gain that is not required to be distributed to the income beneficiaries pursuant to the terms of the governing instrument and applicable local law.

Under traditional principles of income and principal, ordinary income would be paid to the income beneficiaries. Any net long-term capital gain would be allocated to principal to be held for the ultimate benefit of the charitable remainderman and therefore would qualify for the charitable deduction under section 642(c)(3).

If a pooled income fund were to pay the income beneficiaries a unitrust amount in satisfaction of their right to income, as provided by proposed state statutes, long-term capital gains would no longer qualify for the charitable deduction. Any net long-term capital gain not required to be distributed during the current year would be added to principal. However, the amount of the gain would not be permanently set aside for charitable purposes because this amount may be used in the future to make the unitrust payment to the income beneficiaries. A similar situation arises if the trustee is permitted under state law to make equitable adjustments with respect to unrealized appreciation in the value of the trust assets. A portion of any subsequently realized capital gain may already have been treated as distributed to the income beneficiaries in accordance with an equitable adjustment distribution.

The proposed regulations will amend § 1.642(c)-2(c) to address these issues for pooled income funds. Thus, no net long-term capital gain qualifies for the charitable deduction if, under the terms of the governing instrument and applicable state law, income may be a unitrust amount or may include an equitable adjustment with respect to unrealized appreciation in the value of the trust assets.

A charitable remainder unitrust is a split-interest trust that provides for a specified distribution to one or more noncharitable beneficiaries for life or a term of years, with an irrevocable remainder interest held for the benefit of a charitable organization. Under section 664(d)(2), the amount distributed to the noncharitable beneficiaries is a fixed percentage (not less than 5% and not more than 50%) of the annual fair market value of the trust assets. Alternatively, under section 664(d)(3), the unitrust amount may be the lesser of this fixed percentage amount or trust income (with or without a make-up amount). For this purpose, trust income means income as defined under section 643(b) and the applicable regulations. § 1.664-3(a)(1)(i)(b).

Under proposed state statutes, trust income could be a fixed percentage of the annual fair market value of the trust assets, and the fixed percentage may be less than 5%. A net income charitable remainder unitrust using such a state statutory definition of income would in substance be a fixed percentage unitrust with a percentage less than the 5% required by section 664(d)(2). Therefore, the proposed regulations will amend § 1.664-3(a)(1)(i)(b) to provide that income under the terms of the governing instrument and applicable local law may not be determined by reference to a fixed percentage of the annual fair market value of the trust property. If the applicable state law defines income as a unitrust amount, the governing instrument of a net income charitable remainder unitrust must provide its own definition of trust income. In addition, the proposed regulations will provide that capital gains attributable to appreciation in the value of assets after the date contributed to the trust or purchased by the trust may be allocated to income under the terms of the governing instrument and applicable local law. Such an allocation, however, may not be discretionary with the trustee. The section 664 regulations already prohibit the allocation of pre-contribution gains to income.

Section 643(a)(3) provides that gains from the sale or exchange of capital assets are excluded from distributable net income to the extent that these gains are allocated to corpus and they are not either paid, credited, or required to be distributed, to a beneficiary during the year, or paid, permanently set aside, or to be used for a charitable purpose. The circumstances in which capital gains are considered paid or credited to a beneficiary during the year, and therefore included in distributable net income, are not entirely clear. In addition, the revisions to state law definitions of income have precipitated additional questions in this area. The question arises, for example, whether realized capital gains are included in the unitrust amount distributed to the income beneficiary under local law, if the unitrust amount exceeds the trust's ordinary income.

The proposed regulations will amend § 1.643(a)-3(a) to clarify the circumstances in which capital gains are includible in distributable net income for the year. In general, capital gains are included in distributable net income to the extent they are, pursuant to the terms of the governing instrument or local law, or pursuant to a reasonable and consistent exercise of discretion by the fiduciary (in accordance with a power granted to the fiduciary by the governing instrument or local law): allocated to income; allocated to corpus but treated by the fiduciary on the trust's books, records, and tax returns as part of a distribution to a beneficiary; or allocated to corpus but utilized by the fiduciary in determining the amount which is distributed or required to be distributed to a beneficiary. As is the case under the current regulations, capital gains that are paid, permanently set aside, or to be used for the purposes specified in section 642(c) are included in the distributable net income. Capital losses are netted at the trust level against any capital gains, except for a capital gain that is utilized in determining the amount that is distributed or required to be distributed to a particular beneficiary.

Under the proposed regulations, capital gains will be included in distributable net income under certain circumstances that are directed by the terms of the governing instrument and applicable local law. Thus, any capital gain that is included in the section 643(b) definition of income is included in distributable net income. Similarly, any capital gain that is used to determine the amount or the timing of a distribution to a beneficiary is included in distributable net income.

Capital gains are also included in distributable net income if the fiduciary, pursuant to a discretionary power granted by local law or by the governing instrument (if not inconsistent with local law), treats the capital gains as distributed to a beneficiary, provided the power is exercised in a reasonable and consistent manner. Thus, if a trustee exercises a discretionary power by consistently treating any distribution in excess of ordinary income as being made from realized capital gains, any capital gain so distributed is included in distributable net income.

The provisions of sections 643(b) and 643(a)(3) are further intertwined when consideration is given to the new state statutory provisions defining income. If, under the terms of the governing instrument or applicable local law, realized capital gains are treated as income to the extent the unitrust amount or the equitable adjustment amount exceeds ordinary income, capital gains so treated are included in distributable net income. A similar result is achieved for capital gains consistently allocated to income by the fiduciary pursuant to a discretionary power. In any other situation, capital gains will be excluded from distributable net income and will be taxed to the trust.

The proposed regulations will clarify the consequences of certain distributions of property in kind for purposes of the distribution deductions under sections 651 and 661. Thus, if property is distributed to a beneficiary in satisfaction of the beneficiary's right to income, the trust will be treated as having sold the property for its fair market value on the date of distribution.

Certain transfers of property in trust for the benefit of the spouse qualify for the marital deduction for gift and estate tax purposes. These transfers include a life estate with a general power of appointment described in sections 2523(e) and 2056(b)(5) and qualified terminal interest property described in sections 2523(f) and 2056(b)(7). One of the requirements of these provisions is that the spouse must be entitled for life to all the income from the trust property. The rules for determining whether the spouse is entitled to all the income from either a life estate with a general power of appointment trust or a qualified terminable interest trust are set forth in § 20.2056(b)-5(f) of the Estate Tax Regulations and § 25.2523(e)-1(f) of the Gift Tax Regulations. These rules provide that if an interest is transferred in trust, the spouse is entitled for life to all the income from the entire interest or a specific portion of the entire interest if the effect of the trust is to give the spouse substantially that degree of beneficial enjoyment of the trust property during the spouse's life which the principles of the law of trusts accord a person who is unqualifiedly designated as the life beneficiary of a trust.

The proposed regulations will provide that a spouse's interest satisfies the income standard set forth in §§ 20.2056(b)-5(f) and 25.2523(e)-1(f) if the spouse is entitled to income as defined under a state statute that provides for a reasonable apportionment between the income and remainder beneficiaries of the total return of the trust and that meets the requirements of § 1.643(b)-1(a). As the examples under § 1.643(b)-1(a) make clear, reasonable apportionment can be accomplished through a unitrust definition of income or by giving the trustee the power to make equitable adjustments between income and principal. In addition, a conforming amendment is made to § 20.2056A-5(c)(2) providing rules regarding distributions of income from a qualified domestic trust.

In general, under the effective date rules accompanying the generation-skipping transfer (GST) tax statutory provisions, a trust that was irrevocable on September 25, 1985, is not subject to the GST tax provisions, unless a GST transfer is made out of corpus added to the trust after that date. Section 1433(b)(2)(A) of the Tax Reform Act of 1986 (TRA), Public Law 99-514 (100 Stat. 2085, 2731), 1986-3 (Vol. 1) C.B. 1, 634. The regulations provide guidance on when certain changes made to the terms of an exempt trust will not be treated as causing the trust to lose its exempt or grandfathered status. One safe-harbor in § 26.2601-1(b)(4)(i)(D) is for modifications that will not shift a beneficial interest in the trust to a lower generation beneficiary or increase the amount of a GST transfer.

Under the proposed regulations, the administration of a pre-September 25, 1985 trust in conformance with a state law that defines income as a unitrust amount, or permits equitable adjustments between income and principal to ensure impartiality, and that meets the requirements of § 1.643(b)-1(a) will not be treated as a modification that shifts a beneficial interest to a lower generation beneficiary, or increases the amount of a generation-skipping transfer.

The regulations are proposed to apply to trusts and estates for taxable years that begin on or after the date that final regulations are published in the Federal Register.

It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and, because these regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Therefore, a Regulatory Flexibility Analysis is not required. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (preferably a signed original and eight (8) copies) and comments sent via the Internet that are submitted timely to the IRS. The IRS and Treasury request comments on the clarity of the proposed regulations and how they may be made easier to understand. All comments will be available for public inspection and copying. A public hearing has been scheduled for June 8, 2001, in the IRS Auditorium, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC. Owing to building security procedures, visitors must enter at the 10th Street entrance, located between Constitution and Pennsylvania Avenues, NW. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 15 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this preamble.

The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit written or electronic comments and an outline of the topics to be discussed and the time to be devoted to each topic (preferably a signed original and eight (8) copies) by May 18, 2001. A period of 10 minutes will be allotted to each person making comments.

An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.

Various personnel from offices of the IRS and the Treasury Department participated in the development of these proposed regulations.

Accordingly, 26 CFR parts 1, 20, 25, and 26 are proposed to be amended as follows:

Except as provided in this section, the provisions of §§ 20.2056A-1 through 20.2056A-12 are applicable with respect to estates of decedents dying after August 22, 1995. The rule in the fourth sentence of § 20.2056A-5(c) regarding unitrusts and distributions of income to the surviving spouse in conformance with applicable state law that provides for the reasonable apportionment between the income and remainder beneficiaries of the total return of the trust is applicable with respect to trusts for taxable years that begin on or after the date that final regulations are published in the Federal Register.

(ii) Effective dates. The rules in this paragraph (b)(4) are applicable on and after December 20, 2000. However, the rule in the last sentence of paragraph (b)(4)(i)(D)(2) of this section regarding the administration of a trust in conformance with applicable state law providing for a reasonable apportionment between the income and remainder beneficiaries of the total return of the trust is applicable with respect to trusts for taxable years that begin on or after the date that final regulations are published in the Federal Register.

On January 19, 1981, the Secretary of the Interior conditionally approved the Oklahoma program. You can find background information on the Oklahoma program, including the Secretary's findings, the disposition of comments, and the conditions of approval in the January 19, 1981, Federal Register (46 FR 4902). You can find later actions concerning the Oklahoma program at 30 CFR 936.15 and 936.16.

By letter dated January 25, 2001 (Administrative Record No. OK-990), the Oklahoma Department of Mines (Department) sent us an amendment to the Oklahoma program under SMCRA and the Federal regulations at 30 CFR 732.17(b). Oklahoma sent the amendment at its own initiative. Oklahoma is amending its rules at OAC 460:20-17-3 concerning permit revisions by providing guidelines for determining when a permit revision is major/significant or minor and by specifying a time period for approval or disapproval of a permit revision application. Below is a summary of the changes proposed by Oklahoma.

1. OAC 460:20-17-3(a) General. At Section 460:20-17-3(a) Oklahoma is adding the following provision:

2. OAC 460:20-17-3(b) Application requirements and procedures. Oklahoma is removing the existing provisions in Section 460:20-17-3(b), and adding the following new provisions:

3. OAC 460:20-17-3(c) Significant revisions. Oklahoma is moving the existing provision in Section 460:20-17-3(c) to new Section 460:20-17-3(f), and is adding the following provision to Section OAC 460:20-17-3(c):

4. OAC 460:20-17-3(d) Departmental consideration. Oklahoma is moving the existing provision in Section 460:20-17-3(d) to new Section 460:20-17-3(g), and is adding the following new provisions to Section OAC 460:20-17-3(d):

On July 31, 1982, the Secretary of the Interior conditionally approved the Pennsylvania program. You can find background information on the Pennsylvania program, including the Secretary's findings, the disposition of comments, and the conditions of the approval in the July 31, 1982, Federal Register (47 FR 33050). You can find subsequent actions concerning the conditions of approval and program amendments at 30 CFR 938.11, 938.12, 938.15 and 938.16.

By letter dated January 3, 2001, (Administrative Record No. PA-848.25), Pennsylvania submitted a proposed amendment to its program at the Pennsylvania Consolidated Statutes, Title 27 (Environmental Resources), Chapter 77, section 7708. The full text of the amendment is:

In accordance with the provisions of 30 CFR 732.17(h), OSM is seeking comments on whether the proposed amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If the amendment is deemed adequate, it will become part of the Pennsylvania program.

Written Comments: If you submit written or electronic comments on the proposed rule during the 30-day comment period, they should be specific, should be confined to issues pertinent to the notice, and should explain the reason for your recommendation(s). We may not be able to consider or include in the Administrative Record comments delivered to an address other than the one listed above (see ADDRESSES).

Electronic Comments: Please submit Internet comments as an ASCII, WordPerfect, or Word file avoiding the use of special characters and any form of encryption. Please also include “Attn: SPATS NO. PA-132-FOR” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Harrisburg Field Office at (717) 782-4036.

Availability of Comments: Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours at the OSM Administrative Record Room (see ADDRESSES). Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

Public Hearing: If you wish to speak at the public hearing, you should contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m. (local time), on March 2, 2001. The location and time of the hearing will be arranged with those persons requesting the hearing. If no one requests an opportunity to speak at the public hearing, the hearing will not be held.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who testifies at a public hearing provide us with a written copy of his or her testimony. The public hearing will continue on the specified date until all persons scheduled to speak have been heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after all persons scheduled to speak and persons present in the audience who wish to speak have been heard.

Any disabled individual who has need for a special accommodation to attend a public hearing should contact the individual listed under FOR FURTHER INFORMATION CONTACT.

Public Meeting: If only one person requests an opportunity to speak at a hearing, a public meeting, rather than a public hearing, may be held. If you wish to meet with OSM representatives to discuss the proposed amendment, you may request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the public and, if possible, notices of meetings will be posted at the locations listed under ADDRESSES. A written summary of each meeting will be made a part of the Administrative Record.

This rule is exempted from review by the Office of Management and Budget under Executive Order 12866.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart federal regulation.

This rule does not have federalism implications. SMCRA delineates the roles of the federal and state governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that state laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that state programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that, to the extent allowed by law, this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of state regulatory programs and program amendments since each such program is drafted and promulgated by a specific state, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed state regulatory programs and program amendments submitted by the states must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a decision on a proposed state regulatory program provision does not constitute a major federal action within the meaning of section 102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 4332(2)(C)). A determination has been made that such decisions are categorically excluded from the NEPA process (516 DM 8.4.A).

This rule does not contain information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

The Department of the Interior has determined that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The state submittal which is the subject of this rule is based upon counterpart federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. Accordingly, this rule will ensure that existing requirements previously promulgated by OSM will be implemented by the state. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart federal regulation.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million.

b. Will not cause a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises.

This determination is based upon the fact that the state submittal which is the subject of this rule is based upon counterpart federal regulations for which an analysis was prepared and a determination made that the federal regulation was not considered a major rule.

This rule will not impose a cost of $100 million or more in any given year on any governmental entity or the private sector.

The Semipostal Authorization Act, Pub. Law No. 106-253, 114 Stat. 634 (2000) (hereinafter “Act”), authorizes the Postal Service to establish a ten-year program to sell semipostal stamps. The differential between the price of a semipostal stamp and the First-Class Mail® service rate, less an offset for the reasonable costs of the Postal Service, consists of an amount to fund causes that the “Postal Service determines to be in the national public interest and appropriate.” By law, revenue from sales, net of postage and the reasonable costs of the Postal Service, is to be transferred to selected executive agencies within the meaning of 5 U.S.C. 105.

The Governors of the Postal Service are authorized to set prices for semipostal stamps according to a formula prescribed in the Act. Specifically, the Act prescribes that the price of a semipostal stamp is the “rate of postage that would otherwise regularly apply,” plus a differential, i.e., the difference between sales revenue and postage, of not to exceed 25 percent. This is essentially the same formula prescribed by the Stamp Out Breast Cancer Act, Pub. L. No. 105-41, 111 Stat. 1119 (1997).

The Act provides that the Postal Service is to promulgate certain regulations via a notice and comment rulemaking. Specifically, the Postal Service must identify the “office or other authority within the Postal Service” to make decisions on the “appropriate causes and agencies” eligible to receive amounts becoming available from differential revenue less an offset for the reasonable costs of the Postal Service. The Postal Service is also directed to issue regulations on the “criteria and procedures” to be applied in making decisions on recipient executive agencies and causes. The Act further requires the Postal Service to identify “what limitations shall apply, if any, relating to the issuance of semipostals (such as whether more than one semipostal may be offered for sale at the same time).” Finally, the Postal Service's regulations must “specifically address how the costs incurred by the Postal Service . . . shall be computed, recovered, and kept to a minimum.”

The proposed rules are intended to enable the Postal Service to fulfill the Act's objectives. Proposed section 551.1 provides that the office of Stamp Services is primarily responsible for the Semipostal Stamp Program, and that the office of Controller has primary responsibility for financial issues related to the program.

Proposed section 551.2 describes semipostal stamps, and defines the differential to be the difference between the sales price and the postage value of semipostal stamps at the time of purchase.

Proposed section 551.3 establishes a procedure for the selection of causes and recipient executive agencies. From time to time, the Postal Service will publish a request for proposals in the Federal Register inviting interested persons to submit proposals for consideration. Proposals will be reviewed by the office of Stamp Services for consistency with the selection criteria in proposed section 551.4. Those proposals deemed to be eligible for consideration will be forwarded to the Citizens' Stamp Advisory Committee (CSAC).1 CSAC will review the eligible proposals and make recommendations to the Postmaster General, who will act on those recommendations. Special rules would apply if more than one proposal is submitted for the same cause, with different executive agencies proposed to receive the funds. In those cases, the funds would be evenly divided, unless an agency can demonstrate it is entitled to a larger share. In those instances, the Postal Service's vice president and Consumer Advocate would determine the share for each executive agency.

Proposed section 551.4 would establish the submission requirements and selection criteria. Interested persons, defined to include individuals, corporations, associations, and executive agencies, may submit proposals. Proposals must satisfy certain technical requirements, and provide a description of the cause to be funded. The submission must also demonstrate that the cause has broad national appeal, and the cause is in the national public interest and furthers human welfare. Submissions must be accompanied by a letter from an executive agency designated to receive the funds. The letter provides assurance that the agency is qualified to receive funds under the Act, and also ensures that the proposal can be successfully executed if it is selected. Consideration would not be given to proposals that support a number of enumerated factors, including: anniversaries; historical events; public works; people; specific organizations or associations; commercial enterprises or products; cities, towns, municipalities, counties, or secondary schools; hospitals, libraries, or similar institutions; religious institutions; any cause that has been previously supported by a semipostal stamp, including the stamp issued pursuant to 39 U.S.C. § 414; causes that do not further human welfare; or causes determined by the Postal Service or the Citizens' Stamp Advisory Committee to be inconsistent with the spirit, intent, or history of the Semipostal Authorization Act. These enumerated factors are intended to give effect to the Act's intent that only causes in the national public interest should be funded. Proposed section 551.4 also makes clear that proposal submissions become the property of the Postal Service.

Proposed section 551.5 specifies the frequency and other limitations on semipostal stamps. The Act provides that the period within which the Postal Service may sell semipostal stamps under 39 U.S.C. 416 is limited to ten years. The sales period will commence after sales of the Breast Cancer Research Stamp are discontinued. The sales period of the Breast Cancer Research Stamp was extended by the Semipostal Authorization Act to July 29, 2002. New semipostal stamps will accordingly not be issued until after this time. To ensure that the Semipostal Stamp Program reflects the broad spectrum of causes that further the national public interest, proposed section 551.5 specifies that the sales period for any given semipostal would be limited to no more than two years. While the Postal Service expects that most semipostal stamps will be offered for the full two-year period, changes in the sales period may be made by the office of Stamp Services to coincide with changes in the First-Class Mail® service single-piece first ounce rate. To minimize costs, avoid customer confusion, and facilitate ease of administration, no more than one semipostal stamp would be offered for sale at any given time. Proposed 551.5 also reserves the right to withdraw a semipostal stamp.

Proposed section 551.6 establishes that the price of semipostal stamps will be based on the First-Class Mail® service single-piece first-ounce rate. Prices are to be determined by the Governors of the Postal Service in accordance with the requirements of 39 U.S.C. 416.

Proposed section 551.7 identifies the procedure for calculation of the funds to be transferred to executive agencies. A special account identifier code (AIC) will be used to record sales revenue. The amounts to be transferred consist of the differential revenue less an amount for the reasonable costs of the Postal Service. Funds are to be transferred to recipient executive agencies pursuant to mutual agreement.

Proposed section 551.8 sets forth the Postal Service's policy to recover from the differential those costs determined to be attributable to the semipostal and that would not normally be incurred for commemorative stamps having similar sales objectives; physical characteristics; and marketing, promotional, and public relations activities. Such commemorative stamps are defined as “comparable stamps.” The office of the Controller will identify comparable stamps and develop a cost profile for purposes of comparison. Costs that may be recovered from the differential include packaging costs in excess of those for comparable stamps, printing costs for flyers or special receipts, costs of changes to equipment, costs of developing and executing marketing and promotional plans in excess of those for comparable stamps, and other costs that would not normally have been incurred for comparable stamps. Other specified costs would not be recovered from the differential, but rather would be “recovered” through retention of revenue from the postage portion of semipostal stamps. The office of the Controller would bear responsibility for tracking specified costs in proposed section 551.8. The Postal Service intends to maximize differential revenues by avoiding, to the extent practicable, promotional costs that exceed those of comparable stamps, establishing restrictions on the number of concurrently issued semipostals, and making financial and retail system changes in conjunction with regularly scheduled revisions.

In accordance with 39 U.S.C. 416(e)(2), the Postal Service invites public comment on the following proposed amendments to the “Code of Federal Regulations.”

An appropriate amendment to 39 CFR part 551 to reflect these changes will be published if the proposal is adopted.

For the reasons set out in this document, the Postal Service proposes to add 39 CFR part 551 as follows:

For additional information, see the direct final rule which is located in the Rules and Regulations section of this Federal Register.

For additional information, see the Direct Final Action which is located in the rules section of this Federal Register.

This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM) released January 19, 2001 (FCC 01-19). The full text of the NPRM is available for inspection and copying during normal business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text also may be purchased from the Commission's copy contractor, International Transcription Service, Inc. (202) 857-3800, 1231 20th Street, NW., Washington, DC 20037. Additionally, the complete item is available on the Commission's website at http://www.fcc.gov/Bureaus/Common—Carrier/Notices/2001/. This NPRM contains proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA). It has been submitted to the Office of Management and Budget (OBM) for review under the PRA. OMB, the general public, and other Federal agencies are invited to comment on the proposed information collections contained in this proceeding.

This NPRM contains a proposed information collection. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection(s) contained in this NPRM, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due at the same time as other comments on this NPRM; OMB notification of action is due 60 days from date of publication of this NPRM in the Federal Register. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

OMB Control Number: 3060-0816.

Title: “Local Competition and Broadband Reporting, CC Docket No. 99-301”.

Form No.: FCC Form 477.

Type of Review: Revision of Existing Collection.

Respondents: Business or Not-for-profit institutions, including small businesses.

Number of Respondents: Up to 490.

Estimated Time Per Response: 65-70 person-hours.

Total Annual Burden: Up to 32,924 person-hours.

Cost to Respondents: $0.

Needs and Uses: The information collection is a proposed modification of an already authorized program. As before, the program will be used by the Commission to gather information on the state of the development of local competition and broadband deployment. Without such information, the Commission faces significant difficulty in assessing the development of these markets and, therefore, is less able to fulfill its statutory responsibilities in accordance with the Communications Act of 1934, as amended.

1. In the NPRM summarized here, we seek comment whether we should make changes to a previously implemented FCC program (Form 477) to collect basic information about the status of local telephone service competition and the deployment of advanced telecommunications capability, also known as broadband. We seek comment about certain specific changes to broadband information submitted pursuant to Form 477, but propose only relatively minor changes to the portions of Form 477 that cover local competition data or data about mobile telephone services. We do, however, generally solicit comment about all aspects of the data collection program including those that deal with local competition and mobile services data. Overall, our re-examination of the existing data gathering program is driven by concern that we require additional data about the deployment and availability of broadband services to discrete geographic areas and among distinct demographic groups in order to satisfy the statutory mandate of section 706 of the Telecommunications Act of 1996, 47 U.S.C. 706 nt. Nevertheless, we continue to attempt to balance the burdens imposed by the Form 477 program on data providers against the usefulness of the data. Throughout the NPRM, we explain our reasons for seeking comment on specific proposals.

2. Reporting Thresholds. For purposes of this data gathering program, we continue to define “broadband services” to refer to those services that deliver an information carrying capacity in excess of 200 kbps in at least one direction; where the service delivers capacity in excess of 200 kbps in both directions, we call it “full broadband” or “full, two-way broadband.”

3. Our data collection program currently requires broadband, local competition and mobile telephone service providers to complete only those portions of Form 477 for which they meet or exceed defined reporting thresholds. For broadband reporting, that means that facilities-based providers with at least 250 full two-way or one-way broadband lines—or wireless channels—in a given state must report broadband data per applicable portions of the Form 477; providers who fall below the threshold may report data on a voluntary basis. Driven by concern that the existing broadband threshold may be too high for us to collect sufficient information about broadband deployment, particularly in rural and other sparsely populated areas, we ask whether we should keep the existing broadband threshold, lower that threshold, raise it, or eliminate it altogether. We encourage commenters to explain how any alternative would balance our competing desires to obtain comprehensive broadband information without imposing undue burdens on entities that serve comparatively few customers. In particular, we take note of a Petition for Reconsideration of our Report and Order adopting the Form 477 program filed by Iowa Telecom. In its petition, Iowa Telecom asks the Commission to create an exemption for “mid-sized LECs * * * “ which serve primarily rural communities” and employ statistical sampling to gather needed information. We specifically ask commenters to address the Iowa Telecom petition which we will consider as part of this proceeding. (Note: We do not propose to change existing thresholds for local telephone service and mobile telephone service reporting.)

4. Data to be Reported. Currently, pursuant to Form 477, providers must report information about subscribership to their broadband, local telephone, and mobile telephone services offerings per two classes of users: (1) Residential and small business users; and (2) Large business and institutional users. In the NPRM we seek comment whether we should alter Form 477 so that it more precisely captures distinctions between broadband deployment to residential and business users. We ask, accordingly, whether we should require broadband providers to report subscribership information per three user classes: (1) residential users; (2) small business users; and (3) large business and institutional users. We seek comment about what criteria should be used to distinguish among these classes of users, and whether reporting providers should also distinguish between subscribers who subscribe to full, two-way broadband service and those who subscribe to one-way broadband service offerings. We note our continued belief that information about broadband deployment by zip code is the administratively simplest way to obtain finer geographic granularity of subscribership information. We seek comment whether providers should report actual subscribership by zip code—with a separate breakdown for residential subscribership—rather than the current requirement that merely lists zip codes where broadband service is delivered. We ask whether additional information, including distinctions between the types of technology used to provide broadband services, should be provided at the zip code level. We seek comment about alternatives to zip code-specific data; and ask commenters generally, per the mandate of section 706, whether collecting additional subscribership information would necessarily increase our understanding of whether broadband is being made available to all Americans.

5. We tentatively conclude that we should require providers to report data on the availability of broadband as well as on actual subscribership. We seek comment on such measures of availability as (1) number of homes passed by broadband-capable infrastructure; (2) zip codes where service is currently offered to all or some percentage of customers within the zip code; (3) for providers of telephone or cable video services, the number of their customers who have broadband services available to them; (4) any other measure. We seek comment on other issues related to availability and also whether there is other useful information we should collect to inform the Commission's understanding why broadband subscribership rates remain low in some areas where broadband is available. We ask, in particular, whether there are alternative sources of availability, demand, and subscribership information about low income consumers, those living in sparsely populated areas, and others who the Commission has found may be particularly vulnerable to not receiving timely access to broadband services.

6. Our existing broadband data gathering is limited to broadband lines connected to the Internet or to another public network. We seek to clarify the scope of broadband services subject to Form 477 by asking whether we also should collect information about broadband lines that are not connected to the Internet, for example, so-called “private” broadband lines that connect multiple locations of one customer. Examples could include corporate intranet configurations or private networks for educational or health care institutions. We seek specific comment about how to define such services in order to ensure data accuracy and comparability with other collected broadband data.

7. We seek comment on relatively minor revisions to the local competition and mobile telephone service portions of the Form 477 by, inter alia, proposing to reorganize certain sections of the form and to eliminate data requests that may have caused confusion.

8. Confidentiality Issues. Currently we attempt to make publicly available as much local competition and broadband data as possible, while affording providers full opportunity to file data pursuant to requests for confidential treatment. Moreover, in the case of broadband data, we publish in our reports only data aggregations that do not identify particular providers regardless whether they have requested confidential treatment. We seek comment whether we should establish a rebuttable presumption that some or all Form 477 data do not typically meet our standards for competitively sensitive information. We also seek comment on how other proposals proffered in the NPRM affect the need for confidential treatment of data.

9. Frequency of Filing. Our current Form 477 program requires providers to file data twice each year. Given dynamic growth in the broadband market, we seek comment whether we require more frequent filings. Alternatively, we ask whether we should reduce increased burdens potentially imposed pursuant to this NPRM by reducing the number of Form 477 filings to one per year.

10. Analysis of Data. We seek comment whether the additional data proposed to be collected make possible relatively more sophisticated statistical and other analyses by the Commission. We also seek comment about associated issues, including whether the Commission should—and how the Commission could—share data with academics and others, and whether we should give outside parties the opportunity to review and comment on preliminary findings and methodologies before we adopt any final section 706 reports.

11. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed in this Notice. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on this Notice, which are set out in paragraph 33 of the Notice. The Commission will send a copy of this Notice, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, this Notice and IRFA (or summaries thereof) will be published in the Federal Register.

12. The Commission has initiated this proceeding to seek comment on how it might refine or improve the data gathering effort that we authorized on March 30, 2000 to assess the degree of deployment of broadband services and the development of local competition. In considering revisions to this program, we seek to develop more fully our understanding of the deployment and availability of broadband services and the development of local competition. At the same time, we seek to eliminate any unnecessary or unduly burdensome aspects of the program and identify aspects of the program that may need further clarification. In particular, we believe that additional data about deployment of broadband services to discrete geographic areas and amongst distinct demographic groups is essential in order to satisfy more fully our obligations under section 706 of the 1996 Act.

1. The legal basis for the action as proposed for this rulemaking is contained in sections 1-5, 10, 11, 201-205, 215, 218-220, 251-271, 303(r), 332, 403, 502, and 503 of the Communications Act of 1934, as amended, 47 U.S.C. 151-155, 160, 161, 201-205, 215, 218-220, 251-271, 303(r), 332, 403, 502, and 503 and pursuant to section 706 of the Telecommunications Act of 1996, 47 U.S.C. 157 nt.

14. The Commission seeks comment on whether it should revise its rules so that any entity that provides broadband services must comply with the reporting requirement. Out of an abundance of caution, we set out below a detailed description of the types of entities that could possibly be required to comply with the proposed reporting requirement and we detail our understanding of the number of small entities within each of these categories.

15. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. To estimate the number of small entities that may be affected by the proposed rules, we first consider the statutory definition of “small entity” under the RFA. The RFA generally defines “small entity” as having the same meaning as the term “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act, unless the Commission has developed one or more definitions that are appropriate to its activities. Under the Small Business Act, a “small business concern” is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) meets any additional criteria established by the SBA. The SBA has defined a small business for Standard Industrial Classification (SIC) categories 4812 (Radiotelephone Communications) and 4813 (Telephone Communications, Except Radiotelephone) to be small entities when they have no more than 1,500 employees. We first discuss the number of small telephone companies falling within these SIC categories, then attempt to refine further those estimates to correspond with the categories of telephone companies that are commonly used under our rules.

16. The most reliable source of information regarding the total numbers of common carrier and related providers nationwide, as well as the numbers of commercial wireless entities, appears to be data the Commission publishes annually in its Carrier Locator report, derived from filings made in connection with the Telecommunications Relay Service (TRS). According to data in the most recent report, there are 4,822 interstate service providers. These providers include, inter alia, local exchange carriers, wireline carriers and service providers, interexchange carriers, competitive access providers, operator service providers, pay telephone operators, providers of telephone toll service, providers of telephone exchange service, and resellers.

17. We have included small incumbent local exchange carriers (LECs) in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard (e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent LECs in this RFA analysis, although we emphasize that this RFA action has no effect on FCC analyses and determinations in other, non-RFA contexts.

18. Total Number of Telephone Companies Affected. The United States Bureau of the Census (the Census Bureau) reports that, at the end of 1992, there were 3,497 firms engaged in providing telephone services, as defined therein, for at least one year. This number contains a variety of different categories of carriers, including local exchange carriers, interexchange carriers, competitive access providers, cellular carriers, mobile service carriers, operator service providers, pay telephone operators, PCS providers, covered SMR providers, and resellers. It seems certain that some of those 3,497 telephone service firms may not qualify as small entities or small incumbent LECs because they are not “independently owned and operated.” For example, a PCS provider that is affiliated with an interexchange carrier having more than 1,500 employees would not meet the definition of a small business. It seems reasonable to conclude, therefore, that fewer than 3,497 telephone service firms are small entity telephone service firms or small incumbent LECs that may be affected by the decisions and rules proposed in the Notice.

19. Wireline Carriers and Service Providers. The SBA has developed a definition of small entities for telephone communications companies other than radiotelephone companies. The Census Bureau reports that, there were 2,321 such telephone companies in operation for at least one year at the end of 1992. According to SBA's definition, a small business telephone company other than a radiotelephone company is one employing no more than 1,500 persons. All but 26 of the 2,321 non-radiotelephone companies listed by the Census Bureau were reported to have fewer than 1,000 employees. Thus, even if all 26 of those companies had more than 1,500 employees, there would still be 2,295 non-radiotelephone companies that might qualify as small entities or small incumbent LECs. Although it seems certain that some of these carriers are not independently owned and operated, we are unable at this time to estimate with greater precision the number of wireline carriers and service providers that would qualify as small business concerns under SBA's definition. Consequently, we estimate that there are fewer than 2,295 small entity telephone communications companies other than radiotelephone companies that are small entities or small incumbent LECs and that may be affected by the rules proposed in the Notice.

20. Local Exchange Carriers, Competitive Access Providers, Interexchange Carriers, Operator Service Providers, and Resellers. Neither the Commission nor the SBA has developed a definition of small LECs, competitive access providers (CAPs), interexchange carriers (IXCs), operator service providers (OSPs), or resellers. The closest applicable definition for these carrier-types under SBA rules is for telephone communications companies other than radiotelephone (wireless) companies. The most reliable source of information regarding the number of these carriers nationwide of which we are aware appears to be the data that we collect annually in connection with the Telecommunications Relay Service. According to our most recent data, there are 1,395 LECs, 349 CAPs, 204 IXCs, 21 OSPs, and 541 resellers. Although it seems certain that some of these carriers are not independently owned and operated, or have more than 1,500 employees, we are unable at this time to estimate with greater precision the number of these carriers that would qualify as small business concerns under SBA's definition. Consequently, we estimate that there are fewer than 1,395 small entity LECs or small incumbent LECs, 348 CAPs, 204 IXCs, 21 OSPs, and 541 resellers that may be affected by the decisions and rules proposed in the Notice.

21. Wireless (Radiotelephone) Carriers. SBA has developed a definition of small entities for wireless (radiotelephone) companies. The Census Bureau reports that there were 1,176 such companies in operation for at least one year at the end of 1992. According to SBA's definition, a small business radiotelephone company is one employing no more than 1,500 persons. The Census Bureau also reported that 1,164 of those radiotelephone companies had fewer than 1,000 employees. Thus, even if all of the remaining 12 companies had more than 1,500 employees, there would still be 1,164 radiotelephone companies that might qualify as small entities if they are independently owned are operated. Although it seems certain that some of these carriers are not independently owned or operated, we are unable at this time to estimate with greater precision the number of radiotelephone carriers and service providers that would qualify as small business concerns under SBA's definition. Consequently, we estimate that there are fewer than 1,164 small entity radiotelephone companies that may be affected by the decisions and rules proposed in the Notice.

22. Cellular, PCS, SMR and Other Mobile Service Providers. In an effort to further refine our calculation of the number of radiotelephone companies that may be affected by the rules adopted herein, we consider the data that we collect annually in connection with the TRS for the subcategories Wireless Telephony (which includes Cellular, PCS, and SMR) and Other Mobile Service Providers. We will utilize the closest applicable definition under SBA rules—which, for both categories, is for telephone companies other than radiotelephone (wireless) companies, however, to the extent that the Commission has adopted definitions for small entities providing PCS and SMR services, we discuss those definitions below. According to our most recent TRS data, 806 companies reported that they are engaged in the provision of Wireless Telephony services and 44 companies reported that they are engaged in the provision of Other Mobile Services. Although it seems certain that some of these carriers are not independently owned and operated, or have more than 1,500 employees, we are unable at this time to estimate with greater precision the number of Wireless Telephony Providers and Other Mobile Service Providers, except as described below, that would qualify as small business concerns under SBA's definition. Consequently, we estimate that there are fewer than 806 small entity Wireless Telephony Providers and fewer than 44 small entity Other Mobile Service Providers that might be affected by the decisions and rules proposed in the Notice.

23. Broadband PCS Licensees. The broadband PCS spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission defined “small entity” for Blocks C and F as an entity that has average gross revenues of less than $40 million in the three previous calendar years. For Block F, an additional classification for “very small business” was added, and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. These regulations defining “small entity” in the context of broadband PCS auctions have been approved by SBA. No small businesses within the SBA-approved definition bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the Block C auctions. A total of 93 small and very small business bidders won approximately 40% of the 1,479 licenses for Blocks D, E, and F. Based on this information, we estimate that the number of small broadband PCS licenses will include the 90 winning C Block bidders and the 93 qualifying bidders in the D, E, and F blocks, for a total of 183 small PCS providers as defined by SBA and the Commissioner's auction rules.

24. SMR Licensees. Pursuant to 47 CFR 90.814(b)(1), the Commission has defined “small entity” in auctions for geographic area 800 MHz and 900 MHz SMR licenses as a firm that had average annual gross revenues of less than $15 million in the three previous calendar years. The definition of a “small entity” in the context of 800 and 900 MHz SMR has been approved by the SBA. The proposed rules may apply to SMR providers in the 800 MHz and 900 MHz bands that either hold geographic area licenses or have obtained extended implementation authorizations. We do not know how many firms provide 800 MHz or 900 MHz geographic area SMR service pursuant to extended implementation authorizations, nor how many of these providers have annual revenues of less than $15 million. Consequently, we estimate, for purposes of this IRFA, that all of the extended implementation authorizations may be held by small entities, some of which may be affected by the rules proposed in the Notice.

25. The Commission recently held auctions for geographic area licenses in the 900 MHz SMR band. There were 60 winning bidders who qualified as small entities in the 900 MHz auction. Based on this information, we estimate that the number of geographic area SMR licensees that may be affected by the decisions and rules proposed in the Notice includes these 60 small entities. No auctions have been held for 800 MHz geographic area SMR licenses. Therefore, no small entities currently hold these licenses. A total of 525 licenses will be awarded for the upper 200 channels in the 800 MHz geographic area SMR auction. The Commission, however, has not yet determined how many licenses will be awarded for the lower 230 channels in the 800 MHz geographic area SMR auction. There is no basis, moreover, on which to estimate how many small entities will win these licenses. Given that nearly all radiotelephone companies have fewer than 1,000 employees and that no reliable estimate of the number of prospective 800 MHz licensees can be made, we estimate, for purposes of this IRFA, that all of the licenses may be awarded to small entities, some of which may be affected by the decisions and rules proposed in the Notice.

26. 220 MHz Radio Service—Phase I Licensees. The 220 MHz service has both Phase I and Phase II licenses. There are approximately 1,515 such non-nationwide licensees and four nationwide licensees currently authorized to operate in the 220 MHz band. The Commission has not developed a definition of small entities specifically applicable to such incumbent 220 MHz Phase I licensees. To estimate the number of such licensees that are small businesses, we apply the definition under the SBA rules applicable to Radiotelephone Communications companies. According to the Bureau of the Census, only 12 radiotelephone firms out of a total of 1,178 such firms which operated during 1992 had 1,000 or more employees. Therefore, if this general ratio continues in the context of Phase I 220 MHz licensees, we estimate that nearly all such licensees are small businesses under the SBA's definition, some of which may be affected by the decisions and rules proposed in the Notice.

27. 220 MHz Radio Service—Phase II Licensees. The Phase II 220 MHz service is a new service, and is subject to spectrum auctions. In the 220 MHz Third Report and Order we adopted criteria for defining small businesses and very small businesses for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. We have defined a small business as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. Additionally, a very small business is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years. The SBA has approved these definitions. An auction of Phase II licenses commenced on September 15, 1998, and closed on October 22, 1998. Nine hundred and eight (908) licenses were auctioned in 3 different-sized geographic areas: three nationwide licenses, 30 Regional Economic Area Group (Regional) Licenses, and 875 Economic Area (EA) Licenses. Of the 908 licenses auctioned, 693 were sold. Companies claiming small business status won: one of the Nationwide licenses, 67% of the Regional licenses, and 54% of the EA licenses. As of October 7, 1999, the Commission had granted 681 of the Phase II 220 MHz licenses won at a first auction and an additional 221 Phase II licenses won at a second auction.

28. Narrowband PCS. The Commission has auctioned nationwide and regional licenses for narrowband PCS. There are 11 nationwide and 30 regional licensees for narrowband PCS. The Commission does not have sufficient information to determine whether any of these licensees are small businesses within the SBA-approved definition for radiotelephone companies. At present, there have been no auctions held for the major trading area (MTA) and basic trading area (BTA) narrowband PCS licenses. The Commission anticipates a total of 561 MTA licenses and 2,958 BTA licenses will be awarded by auction. Such auctions have not yet been scheduled, however. Given that nearly all radiotelephone companies have no more than 1,500 employees and that no reliable estimate of the number of prospective MTA and BTA narrowband licensees can be made, we assume, for purposes of this IRFA, that all of the licenses will be awarded to small entities, as that term is defined by the SBA.

29. Rural Radiotelephone Service. The Commission has not adopted a definition of small entity specific to the Rural Radiotelephone Service. A significant subset of the Rural Radiotelephone Service is the Basic Exchange Telephone Radio Systems (BETRS). We will use the SBA's definition applicable to radiotelephone companies, i.e., an entity employing no more than 1,500 persons. There are approximately 1,000 licensees in the Rural Radiotelephone Service, and we estimate that almost all of them qualify as small entities under the SBA's definition.

30. Air-Ground Radiotelephone Service. The Commission has not adopted a definition of small entity specific to the Air-Ground Radiotelephone Service. Accordingly, we will use the SBA's definition applicable to radiotelephone companies, i.e., an entity employing no more than 1,500 persons. There are approximately 100 licensees in the Air-Ground Radiotelephone Service, and we estimate that almost all of them qualify as small entities under the SBA definition.

31. Private Land Mobile Radio (PLMR). PLMR systems serve an essential role in a range of industrial, business, land transportation, and public safety activities. These radios are used by companies of all sizes operating in all U.S. business categories. The Commission has not developed a definition of small entity specifically applicable to PLMR licensees due to the vast array of PLMR users. For the purpose of determining whether a licensee is a small business as defined by the SBA, each licensee would need to be evaluated within its own business area. The Commission is unable at this time to estimate the number, if any, of small businesses that could be impacted by the proposed rules. However, the Commission's 1994 Annual Report on PLMRs indicates that at the end of fiscal year 1994 there were 1,087,267 licensees operating 12,481,989 transmitters in the PLMR bands below 512 MHz. Because any entity engaged in a commercial activity is eligible to hold a PLMR license, the proposed rules in this context could potentially impact every small business in the United States. We note, however, that because the vast majority of these licensees are end-users, not providers of telephony or broadband services, they would not be directly affected by the rules proposed in this Notice.

32. Fixed Microwave Services. Microwave services include common carrier, private-operational fixed, and broadcast auxiliary radio services. At present, there are approximately 22,015 common carrier fixed licensees in the microwave services. The Commission has not yet defined a small business with respect to microwave services. For purposes of this IRFA, we will utilize the SBA's definition applicable to radiotelephone companies—i.e., an entity with no more than 1,500 persons. We estimate, for this purpose, that all of the Fixed Microwave licensees (excluding broadcast auxiliary licensees) would qualify as small entities under the SBA definition for radiotelephone companies.

33. Offshore Radiotelephone Service. This service operates on several UHF TV broadcast channels that are not used for TV broadcasting in the coastal area of the states bordering the Gulf of Mexico. At present, there are approximately 55 licensees in this service. We are unable at this time to estimate the number of licensees that would qualify as small entities under the SBA's definition for radiotelephone communications.

34. Wireless Communications Services. This service can be used for fixed, mobile, radio-location and digital audio broadcasting satellite uses. The Commission defined “small business” for the wireless communications services (WCS) auction as an entity with average gross revenues of $40 million for each of the three preceding years, and a “very small business” as an entity with average gross revenues of $15 million for each of the three preceding years. The Commission auctioned geographic area licenses in the WCS service. In the auction, there were seven winning bidders that qualified as very small business entities, and one that qualified as a small business entity. We conclude that the number of geographic area WCS licensees that may be affected by the decisions and rules proposed in the Notice includes these eight entities.

35. Satellite Services. The Commission has not developed a definition of small entities applicable to satellite service licensees. Therefore, the applicable definition of small entity is generally the definition under the SBA rules applicable to Communications Services, Not Elsewhere Classified (NEC). This definition provides that a small entity is expressed as one with $11.0 million or less in annual receipts. According to the Census Bureau, there were a total of 848 communications services providers, NEC, in operation in 1992, and a total of 775 had annual receipts of less than $9.999 million. The Census report does not provide more precise data.

36. In addition to the estimates provided above, we consider certain additional entities that may be affected by the data collection from broadband service providers. Because section 706 requires us to monitor the deployment of broadband regardless of technology or transmission media employed, we anticipate that some broadband service providers will not provide telephone service. Accordingly, we describe below other types of firms that may provide broadband services, including cable companies, MDS providers, and utilities, among others.

37. Cable services or systems. The SBA has developed a definition of small entities for cable and other pay television services, which includes all such companies generating $11 million or less in revenue annually. This definition includes cable systems operators, closed circuit television services, direct broadcast satellite services, multipoint distribution systems, satellite master antenna systems and subscription television services. According to the Census Bureau data from 1992, there were 1,788 total cable and other pay television services and 1,423 had less than $11 million in revenue.

38. The Commission has developed its own definition of a small cable system operator for the purposes of rate regulation. Under the Commission's rules, a “small cable company” is one serving fewer than 400,000 subscribers nationwide. Based on our most recent information, we estimate that there were 1,439 cable operators that qualified as small cable system operators at the end of 1995. Since then, some of those companies may have grown to serve over 400,000 subscribers, and others may have been involved in transactions that caused them to be combined with other cable operators. Consequently, we estimate that there are fewer than 1,439 small entity cable system operators.

39. The Communications Act also contains a definition of a small cable system operator, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that there are 66,690,000 subscribers in the United States. Therefore, we found that an operator serving fewer than 666,900 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all of its affiliates, do not exceed $250 million in the aggregate. Based on available data, we find that the number of cable operators serving 666,900 subscribers or less totals 1,450. We do not request nor do we collect information concerning whether cable system operators are affiliated with entities whose gross annual revenues exceed $250,000,000, and thus are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

40. Multipoint Distribution Systems (MDS). This service has historically provided primarily point-to-multipoint one-way video services to subscribers. The Commission recently amended its rules to allow MDS licensees to provide a wide range of high-speed, two-way services to a variety of users.

41. In connection with the 1996 MDS auction, the Commission defined small businesses as entities that had annual average gross revenues for the three preceding years not in excess of $40 million. The Commission established this small business definition in the context of this particular service and with the approval of the SBA. The MDS auction resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas. Of the 67 auction winners, 61 met the definition of a small business. At this time, we estimate that of the 61 small business MDS auction winners, 48 remain small business licensees.

42. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent MDS licensees that are considered small entities. After adding the number of small business auction licensees to the number of incumbent licensees not already counted, we find that there are currently approximately 440 MDS licensees that are defined as small businesses under either the SBA or the Commission's rules. Some of those 440 small business licensees may be affected by the proposals in this Notice.

43. Electric Services (SIC 4911). The SBA has developed a definition for small electric utility firms. The Census Bureau reports that a total of 1379 electric utilities were in operation for at least one year at the end of 1992. According to SBA, a small electric utility is an entity whose gross revenues did not exceed five million dollars in 1992. The Census Bureau reports that 447 of the 1379 firms listed had total revenues below five million dollars.

44. Electric and Other Services Combined (SIC 4931). The SBA has classified this entity as a utility whose business is less than 95% electric in combination with some other type of service. The Census Bureau reports that a total of 135 such firms were in operation for at least one year at the end of 1992. The SBA's definition of a small electric and other services combined utility is a firm whose gross revenues did not exceed five million dollars in 1992. The Census Bureau reported that 45 of the 135 firms listed had total revenues below five million dollars.

45. Combination Utilities, Not Elsewhere Classified (SIC 4939). The SBA defines this utility as providing a combination of electric, gas, and other services which are not otherwise classified. The Census Bureau reports that a total of 79 such utilities were in operation for at least one year at the end of 1992. According to SBA's definition, a small combination utility is a firm whose gross revenues did not exceed five million dollars in 1992. The Census Bureau reported that 63 of the 79 firms listed had total revenues below five million dollars.

46. The Notice sets out in detail, and seeks comment on, various proposals to modify the Commission's existing Local Competition and Broadband reporting program. Pursuant to the current reporting program, certain providers of broadband services and of local telephone services must complete FCC Form 477, which collects data on their deployment of those services. Since the adoption of the reporting program, providers have reported data twice and the Commission has issued its Second Report on Advanced Telecommunications Capability based in significant part on the data collected through this program. Thus, the Notice seeks comment, in light of these experiences, on ways that the Commission might improve this data gathering effort. The Notice asks whether certain measures to gain additional data might assist the Commission in its efforts to understand the degree and status of deployment of broadband services, without imposing an undue burden on reporting providers. For example, the Notice seeks comment on possible revisions to FCC Form 477 that might more precisely capture distinctions between the deployment of broadband services to residential and business users. Similarly, the Notice seeks comment on whether we should revise the form so that providers report the actual subscribership by zip code, in lieu of the current requirement that providers report a list of zip codes where broadband service is being delivered. Further, the Notice asks whether it is possible to eliminate any unnecessary or unduly burdensome aspects of the reporting program. In addition to seeking comment on the types of data to be reported, the Notice seeks comment on whether to adjust the current reporting thresholds, whether the Commission should alter its confidentiality procedures for data collected, whether it would be appropriate to alter the frequency of filing, and whether there are additional steps that the Commission might take to promote additional analyses of the data. The Notice asks commenters to document, insofar as possible, the burdens that are imposed by our current requirements and the additional burdens that would be imposed by more detailed reporting requirements.

47. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

48. As mentioned previously, the Notice seeks comment, in light of our experiences since the adoption of the reporting program, on ways that we might improve this data gathering effort. The Notice asks whether there is additional data that would enhance the Commission's ability to understand the status and degree of broadband and local telephone service deployment. At the same time, the Notice asks whether it is possible to eliminate any unnecessary or unduly burdensome aspects of the reporting program. This proposal would reduce burdens on all respondents, including any small entities that must report under the program. Among the alternatives considered in the Notice that might affect small entities is a proposal by Iowa Telecom seeking to create an exemption for “mid-size LECs * * * which serve primarily rural communities.” Small entities are specifically encouraged to comment on such an exemption. The Notice seeks comment on whether the burdens imposed on smaller providers by our reporting requirements outweigh the benefits of these requirements. At the same time, the Commission also asks whether access to more complete information about broadband subscribership in rural areas—areas that are often served by smaller telephone and cable companies—might enable us to better fulfill the congressional directive to assess the state of deployment of broadband services to all Americans. The Notice expressly states the Commission's desire and intention to work closely with service providers, including small entities, to minimize burdens wherever possible, particularly for smaller providers that may have limited resources.

49. None.

50. None.

51. Pursuant to sections 1-5, 10, 11, 201-205, 215, 218-220, 251-271, 303(r), 332, 403, 502, and 503 of the Communications Act of 1934, as amended, 47 U.S.C. 151-155, 160, 161, 201-205, 215, 218-220, 251-271, 303(r), 332, 403, 502, and 503, and pursuant to section 706 of the Telecommunications Act of 1996, 47 U.S.C. 157 nt, this [notice], with all attachments, is hereby [adopted].

52. The Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of this Second Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration in accordance with paragraph 603(a) of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (1981).

Chorizanthe robusta var. robusta, also known as robust spineflower and Aptos spineflower, is endemic to sandy soils in coastal areas in southern Santa Cruz and northern Monterey Counties. In California, the spineflower genus (Chorizanthe) in the buckwheat family (Polygonaceae) comprises species of wiry annual herbs that inhabit dry sandy soils, both along the coast and inland. Because of the patchy and limited distribution of such soils, many species of Chorizanthe tend to be highly localized in their distribution.

Like other spineflowers, Chorizanthe robusta var. robusta is branched from the base and subtended by a rosette of basal leaves. The overall appearance of C. r. var. robusta is that of a low-growing herb that is soft-hairy and grayish or reddish in color. The plant has an erect to spreading or prostrate habit, with large individuals reaching 50 centimeters (cm) (20 inches (in.)) or more in diameter. This taxon is distinguished by white (rarely pinkish) scarious (translucent) margins on the lobes of the involucre (circle or collection of modified leaves surrounding a flower cluster) or head that subtend the white- to rose-colored flowers. The aggregate of flowers (heads) tend to be 1.5 to 2.0 cm (0.6 to 0.8 in.) across in diameter and distinctly aggregate. Chorizanthe robusta var. robusta is one of two varieties of the species Chorizanthe robusta. The other variety (Chorizanthe robusta var. hartwegii), known as Scotts Valley spineflower, is restricted to the Scotts Valley area in the Santa Cruz Mountains. The range of Chorizanthe robusta var. robusta partially overlaps with Chorizanthe pungens var. pungens (Monterey spineflower), another closely related taxon in the Pungentes section of the genus, in southern Santa Cruz County. Chorizanthe pungens var. pungens is a threatened species and Chorizanthe robusta var. robusta is an endangered species; for a detailed description of these related taxa, see the Draft Recovery Plan for the Robust Spineflower (Service 2000) and references within this plan. We are proposing critical habitat for Chorizanthe pungens var. pungens and Chorizanthe robusta var. hartwegii separately but concurrently with this proposal.

Chorizanthe robusta var. robusta is a short-lived annual species. It germinates during the winter months and flowers from April through June; although pollination ecology has not been studied for this taxon, pollinators observed include leaf cutter bees (megachilids), at least 6 species of butterflies, flies, and sphecid wasps (Randy Morgan, biologist, Soquel, California, pers. comm. 2000). Each flower produces one seed; depending on the vigor of the individual plant, dozens, if not hundred of seeds could be produced. The importance of pollinator activity in seed set has been demonstrated by the production of seed with low viability where pollinator access was limited (Harding Lawson Associates 2000). Seed is collectable through August. The plants turn a rusty hue as they dry through the summer months, eventually shattering during the fall. Seed dispersal is facilitated by the involucral spines, which attach the seed to passing animals. While animal vectors most likely facilitate dispersal between colonies and populations, the prevailing coastal winds undoubtedly play a part in scattering seed within colonies and populations.

The locations where Chorizanthe robusta var. robusta occurs are subject to a mild maritime climate, where fog helps keep summer temperatures cool and winter temperatures relatively warm, and provides moisture in addition to the normal winter rains. Chorizanthe robusta var. robusta is currently known from a total of seven sites. Two sites are located on active coastal dunes, while the other five sites are located inland from the immediate coast in sandy openings within scrub, maritime chaparral, or oak woodland habitats. All of these habitat types include microhabitat characteristics that are favored by C. r. var. robusta. First, all sites are on sandy soils; whether the origin of the soils are from active dunes or interior fossil dunes is apparently unimportant. Second, these sites are relatively open and free of other vegetation; sandy soils tend to be nutrient-poor, which limits the abundance of other herbaceous species that can grow on them. However, if these soils have been enriched, either through the accumulation of organic matter or importation of other soils, these sandy soils may support more abundant herbaceous vegetation which may then compete with C. r. var. robusta. Management of the herb cover, either through grazing, mowing or fire, may allow the spineflower to persist. In scrub and chaparral communities, C. r. var. robusta does not occur under dense stands, but will occur between more widely spaced shrubs.

According to information included in the California Natural Diversity Data Base (CNDDB), Chorizanthe robusta var. robusta once ranged from Alameda County, on the eastern side of San Francisco Bay, south to northern Monterey County—a range of 160 kilometers (100 miles). The identity of the Alameda collections, however, is still unresolved; Reveal and Hardham (1989) noted that these collections may be more closely related to other spineflowers in the Pungentes section of the genus, but that resolution is unlikely since the Alameda population was last collected in 1948. Other historic collections were made from Colma in San Mateo County, Los Gatos and San Jose in Santa Clara County, and several locations in Santa Cruz and Monterey counties.

Other collections of putative Chorizanthe robusta var. robusta have been made from northern Monterey County and from one location near Soledad. Barbara Ertter (1990, in litt. 1997) has suggested that these collections may form a separate morphological “phase,” whose ultimate taxonomic affinities lay either with Chorizanthe pungens var. pungens or Chorizanthe robusta var. robusta. For purposes of this rule, these collections are recognized as belonging to C. r. var. robusta.

The current distribution of Chorizanthe robusta var. robusta is restricted to coastal and near-coastal sites in southern Santa Cruz County and northern Monterey County, ranging from Pogonip Park in the city of Santa Cruz, southeast to coastal dunes between Marina and Seaside that were formerly part of Fort Ord. With the discovery of two new populations in the year 2000, a total of seven populations are now known to exist. There is a high likelihood that other populations will be discovered in the future.

At Pogonip Park, two colonies occur on sandy soils derived from the Santa Margarita sandstone formation; one colony is growing in sandy openings within a mixed forest community (CNDDB 2000; S. Baron, in litt. 1999a). Within the city of Santa Cruz, near where Highway 1 crosses Carbonera Creek, (referred to as the Branciforte site) a population occurs in a field that supports grassland species, including Avena barbata (wild oats), Vulpia sp. (vulpia), Lupinus sp. (sky lupine), Eschscholzia californica (California poppy), Conyza sp. (telegraph weed), Navarettia atractyloides (navaretia), and Erodium sp. (filaree) (R. Morgan, pers. comm. 2000). At the Aptos site, Chorizanthe robusta var. robusta occurs in an opening within maritime chaparral on inland marine sand deposit (CNDDB 2000). At the Freedom site, C. r. var. robusta occurs in a grassy opening within maritime chaparral and oak woodland (Dean Taylor, Jepson Herbarium, Berkeley, CA, in litt. 2000). At the Buena Vista site, C. r. var. robusta occurs on sandy soils in openings within oak forest and maritime chaparral (S. Baron, in litt. 1999b). The Buena Vista site also supports the endangered Santa Cruz long-toed salamander (Ambystoma californiense).

At Sunset State Beach, Chorizanthe robusta var. robusta is found at the base of backdunes in openings of coastal scrub, including Eriophyllum staechadifolium (seaside woolly sunflower), Artemisia pycnocephala (coastal sagewort), Ericameria ericoides (mock heather), and Baccharis pilularis (coyote bush) (CNDDB 2000). Chorizanthe pungens var. pungens grows in a band parallel to the C. r. var. robusta, in the foredunes along the beach (CNDDB 2000). In 1992, a population of C. r. var. robusta was discovered on the coastal dunes between Marina and Seaside, in the course of surveys performed in preparation for the transfer of Department of Defense lands formerly known as Fort Ord to the California Department of Parks and Recreation; this same stretch of dunes also supports the threatened C. p. var. pungens and the threatened western snowy plover (Charadrius alexandrinus nivosus) (U.S. Army Corps of Engineers (ACOE) 1997). The distribution of suitable habitat on coastal dunes is subject to dynamic shifts caused by patterns of dune mobilization, stabilization, and successional trends in coastal dune scrub that increase in cover over time. Individual colonies of C. r. var. robusta, found in gaps between stands of scrub, shift in distribution and size over time.

Portions of the coastal dune, coastal scrub, grassland, chaparral, and oak woodland communities that support Chorizanthe robusta var. robusta have been eliminated or altered by recreational use, conversion to agriculture, and urban development. Dune communities have also been altered in composition by the introduction of non-native species, especially Carpobrotus spp. (sea-fig or iceplant) and Ammophila arenaria (European beachgrass), in an attempt to stabilize shifting sands. In the last decade, significant efforts have been made to restore native dune communities, including the elimination of these non-native species.

On May 16, 1990, we received a petition from Steve McCabe and Randall Morgan of the Santa Cruz Chapter of the California Native Plant Society to list Chorizanthe robusta var. hartwegii (Scotts Valley spineflower) as endangered. Based on a 90-day finding that the petition presented substantial information indicating that the requested action may be warranted (55 FR 46080), we initiated a status review of this taxon. During that time we also reviewed the status of Chorizanthe robusta var. robusta. We proposed endangered status for the C. r. var. robusta on October 24, 1991 (56 FR 55107). The final rule, published on February 4, 1994, (59 FR 5499) listed C. robusta, inclusive of var. robusta and var. hartwegii, as endangered.

Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that designation of critical habitat is not prudent when one or both of the following situations exist: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species. At the time Chorizanthe robusta was listed, inclusive of var. robusta and var. hartwegii, we found that designation of critical habitat for Chorizanthe robusta, inclusive of var. robusta and var. hartwegii, was prudent but not determinable and that designation of critical habitat would occur once we had gathered the necessary data.

On June 30, 1999, our failure to designate critical habitat for Chorizanthe robusta, inclusive of var. robusta and var. hartwegii, within the time period mandated by 16 U.S.C. 1533(b)(6)(C)(ii) was challenged in Center for Biological Diversity v. Babbitt (Case No. C99-3202 SC). On August 30, 2000, the U.S. District Court for the Northern District of California (Court) directed us to publish a proposed critical habitat designation within 60 days of the Court's order and a final critical habitat designation no later than 120 days after the proposed designation is published. On October 16, 2000, the Court granted the government's request for a stay of this order. Subsequently, by a stipulated settlement agreement signed by the parties on November 20, 2000, we agreed to propose critical habitat for Chorizanthe robusta var. robusta by January 15, 2001. Because the two varieties of Chorizanthe robusta are geographically and ecologically separated, proposed critical habitat designations have been developed separately. This proposed rule addresses critical habitat for Chorizanthe robusta var. robusta. A proposed critical habitat designation for Chorizanthe robusta var. hartwegii (Scotts Valley spineflower) is being proposed concurrently.

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 in accordance with 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 considerations or protection; and (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such 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 or a threatened species to the point at which listing under the Act is no longer necessary.

Critical habitat receives protection under section 7 of the Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7 also requires conferences on Federal actions that are likely to result in the destruction or adverse modification of critical habitat. In our regulations at 50 CFR 402.02, we define destruction or adverse modification as “* * * the direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.” Aside from the added protection that may be provided under section 7, the Act does not provide other forms of protection to lands designated as critical habitat. Because consultation under section 7 of the Act does not apply to activities on private or other non-Federal lands that do not involve a Federal nexus, critical habitat designation would not afford any additional protections under the Act against such activities.

In order to be included in a critical habitat designation, the habitat must first be “essential to the conservation of the species.” Critical habitat designations identify, to the extent known using the best scientific and commercial data available, habitat areas that provide essential life cycle needs of the species (i.e., areas on which are found the primary constituent elements, as defined at 50 CFR 424.12(b)).

Section 4 requires that we designate critical habitat at the time of listing and based on what we know at the time of the designation. When we designate critical habitat at the time of listing or under short court-ordered deadlines, we will often not have sufficient information to identify all areas of critical habitat. We are required, nevertheless, to make a decision and thus must base our designations on what, at the time of designation, we know to be critical habitat.

Within the geographic area occupied by the species, we will designate only areas currently known to be essential. Essential areas should already have the features and habitat characteristics that are necessary to sustain the species. We will not speculate about what areas might be found to be essential if better information became available, or what areas may become essential over time. If the information available at the time of designation does not show that an area provides essential life cycle needs of the species, then the area should not be included in the critical habitat designation. Within the geographic area occupied by the species, we will not designate areas that do not now have the primary constituent elements, as defined at 50 CFR 424.12(b), which provide essential life cycle needs of the species.

Our regulations state that, “The Secretary shall designate as critical habitat areas outside the geographic area presently occupied by the species only when a designation limited to its present range would be inadequate to ensure the conservation of the species.” (50 CFR 424.12(e)). Accordingly, when the best available scientific and commercial data do not demonstrate that the conservation needs of the species require designation of critical habitat outside of occupied areas, we will not designate critical habitat in areas outside the geographic area occupied by the species.

Our Policy on Information Standards Under the Endangered Species Act, published in the Federal Register on July 1, 1994 (59 FR 34271), provides criteria, establishes procedures, and provides guidance to ensure that our decisions represent the best scientific and commercial data available. It requires our biologists, to the extent consistent with the Act and with the use of the best scientific and commercial data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When determining which areas are critical habitat, a primary source of information should be the listing package for the species. Additional information may be obtained from a recovery plan, articles in peer-reviewed journals, conservation plans developed by states and counties, scientific status surveys and studies, and biological assessments or other unpublished materials (i.e., gray literature).

Habitat is often dynamic, and populations may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the recovery of the species. For these reasons, all should understand that critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery. Areas outside the critical habitat designation will continue to be subject to conservation actions that may be implemented under section 7(a)(1) and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard and the prohibitions of section 9, as determined on the basis of the best available information at the time of the action. We specifically anticipate that federally funded or assisted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome.

As required by the Act and regulations (section 4(b)(2) and 50 CFR 424.12) we used the best scientific information available to determine areas that contain the physical and biological features that are essential for the survival and recovery of Chorizanthe robusta var. robusta. This information included information from the California Natural Diversity Data Base (CNDDB 2000), soil survey maps (Soil Conservation Service 1979), recent biological surveys and reports, our draft recovery plan for this species, additional information provided by interested parties, and discussions with botanical experts. We also conducted site visits, either cursory or more extensive, at five of the seven locations (Pogonip, Freedom, Buena Vista, Sunset State Beach, and dunes at former Fort Ord).

Each of the critical habitat units includes areas that are unoccupied by Chorizanthe robusta var. robusta. Determining the specific areas that this taxon occupies is difficult for several reasons: (1) The distribution of Chorizanthe robusta var. robusta appears to be more closely tied to the presence of sandy soils than to specific plant communities; the plant communities may undergo changes over time, which, due to the degree of cover that is provided by that vegetation type, may either favor the presence of Chorizanthe robusta var. robusta or not; (2) the way the current distribution of Chorizanthe robusta var. robusta is mapped can be variable, depending on the scale at which patches of individuals are recorded (e.g. many small patches versus one large patch); and (3) depending on the climate and other annual variations in habitat conditions, the extent of the distributions may either shrink and temporarily disappear, or, if there is a residual seedbank present, enlarge and cover a more extensive area. Therefore, patches of unoccupied habitat are interspersed with patches of occupied habitat; the inclusion of unoccupied habitat in our critical habitat units reflects the dynamic nature of the habitat and the life history characteristics of this taxon.

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to propose as critical habitat, we consider those physical and biological features (primary constituent elements) that are essential to the conservation of the species and that may require special management considerations or protection. These 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.

Little is known about the specific physical and biological requirements of Chorizanthe robusta var. robusta beyond that described in the Background section of this proposed rule. Based on the best available information at this time, the primary constituent elements of critical habitat for C. r. var. robusta are:

(1) sandy soils associated with active coastal dunes and inland sites with sandy soils;

(2) plant communities that support associated species, including coastal dune, coastal scrub, grassland, maritime chaparral, and oak woodland communities, and have a structure such that there are openings between the dominant elements (e.g. scrub, shrub, oak trees, clumps of herbaceous vegetation);

(3) plant communities that contain no or little cover by nonnative species which would compete for resources available for growth and reproduction of Chorizanthe robusta var. robusta;

(4) Pollinator activity between existing colonies of Chorizanthe robusta var. robusta;

(5) Physical processes, such as occasional soil disturbance, that support natural dune dynamics along coastal areas; and

(6) Seed dispersal mechanisms between existing colonies and other potentially suitable sites.

We selected critical habitat areas to provide for the conservation of Chorizanthe robusta var. robusta, at the two coastal sites and five inland sites where it is known to occur. Historic locations for which there are no recent records of occupancy (within the last 25 years) were not proposed for designation. At a number of these sites, including Alameda in Alameda County, Colma in San Mateo County, and Los Gatos and San Jose in Santa Clara County, the plant has not been seen for approximately 100 years; this, combined with the consideration that these locations have been urbanized, leads us to conclude that a critical habitat designation would be inappropriate for these sites.

We considered proposing critical habitat in two areas where Chorizanthe robusta var. robusta has been documented within the last 25 years, but not within the last few years. The first is at Manresa State Beach, just seaward from the community of La Selva Beach in Santa Cruz County. Chorizanthe robusta var. robusta was observed near the entrance to the Beach in 1979, but it has not been seen since then and may be extirpated (CNDDB 2000). However, Manresa State Beach is being proposed as critical habitat for Chorizanthe pungens var. pungens. Should that final critical habitat designation include Manresa State Beach, the designation may afford benefits to C. r. var. robusta through increased awareness of the importance of this habitat, particularly if the C. r. var. robusta is found to still persist at this site.

The second area where Chorizanthe robusta var. robusta has been documented within the last 25 years is an area north of the community of Soquel in Santa Cruz County, and bounded by Paul Sweet Road to the west, Rodeo Gulch Road to the east, and as far north as Mountain View Road. Collections from this area were made in 1936, 1960, and 1977; although this area has undergone some scattered development, much of the area remains rural, and populations of C. r. var. robusta may persist in this area. However, due to the size of this area and our lack of information needed to delineate boundaries more specifically, we are not proposing critical habitat in this area at this time.

We do not believe that critical habitat designation, in this proposed rule, will be sufficient to conserve Chorizanthe robusta var. robusta, a species in danger of extinction due to the precariously few sites where it is still extant. The draft recovery plan for C. r. var. robusta (Service 2000) proposes as a recovery task “the reestablishment of populations within the historic range of the species if appropriate habitat can be located”. The task of locating appropriate habitat, which would entail developing a predictive model based on habitat characteristics (similar to, but more detailed than, the constituent elements described in this proposed rule), followed by field surveys and coordination with other agencies, has not yet been initiated. Once these data have been gathered and the recovery plan is finalized, we may revisit critical habitat designation for this species, if appropriate.

The long-term probability of the survival and recovery of Chorizanthe robusta var. robusta is dependent to a great extent upon the protection of existing population sites, and of maintaining ecologic functions within these sites, including connectivity between sites within close geographic proximity to facilitate pollinator activity and seed dispersal mechanisms, and the ability to maintain disturbance factors (for example dune dynamics at the coastal sites, and fire disturbance at inland site) that maintain the openness of vegetative cover upon which the species depends. Threats to the habitat of Chorizanthe robusta var. robusta include: residential development, recreational use, and the introduction of non-native species (February 4, 1994; 59 FR 5499). The areas we are proposing to designate as critical habitat provide some or all of the habitat components essential for the conservation of C. r. var. robusta. Given the species' need for an open plant community structure and the risk of non-native species, we believe that these areas may require special management considerations or protection.

In our delineation of the critical habitat units, we believed it was important to designate all the known areas where Chorizanthe robusta var. robusta occurs. When possible, areas that were in close geographic proximity were included in the same unit to emphasize the need to maintain connectivity between different populations. We also included habitat for C. r. var. robusta adjacent to and contiguous to areas of known occurrences to maintain landscape scale processes. Each mapping unit contains habitat that is occupied by C. r. var. robusta; none of the mapping units are comprised entirely of unoccupied habitat. Some units were mapped with a greater precision that others, based on the available information, the size of the unit, and the time allotted to complete this proposed rule. We anticipate that in the time between the proposed rule and the final rule, and based upon the additional information received during the public comment period, that the boundaries of certain mapping units will be refined.

The proposed critical habitat units were delineated by creating data layers in a geographic information system (GIS) format of the areas of known occurrences of Chorizanthe robusta var. robusta, using information from the California Natural Diversity Data Base (CNDDB 2000), recent biological surveys and reports, our draft recovery plan for this species, and discussions with botanical experts. These data layers were created on a base of USGS 7.5′ quadrangle maps obtained from the State of California's Stephen P. Teale Data Center. We defined the boundaries for the proposed critical habitat units using a combination of (1) Public Land Survey (PLS) coordinates of township, range, and section; (2) known landmarks and roads; and (3) a protracted PLS grid system used to infill grid coordinates within Spanish land grant areas where actual PLS does not exist.

In selecting areas of proposed critical habitat, we made an effort to avoid developed areas, such as housing developments, that are unlikely to contribute to the conservation of Chorizanthe robusta var. robusta. However, we did not map critical habitat in sufficient detail to exclude all developed areas, or other lands unlikely to contain the primary constituent elements essential for the conservation of C. r. var. robusta. Areas within the boundaries of the mapped units, such as buildings, roads, parking lots, railroads, airport runways and other paved areas, lawns, and other urban landscaped areas 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.

The proposed critical habitat areas described below constitute our best assessment at this time of the areas needed for the conservation and recovery of the Chorizanthe robusta var. robusta. Critical habitat being proposed for C. r. var. robusta includes seven units that currently sustain the species. This proposed critical habitat is essential for the conservation of the species because the geographic range that C. r. var. robusta occupies has been reduced to so few sites that the species is in danger of extinction (56 FR 55107). The areas being proposed as critical habitat are either along the coast (Sunset State Beach and the dunes at former Fort Ord), or are at inland sites ranging from Pogonip Park southeast to the Buena Vista property in southern Santa Cruz County, and include the appropriate dune, scrub, maritime chaparral, or oak woodland habitat that include the sandy openings which support Chorizanthe robusta var. robusta.

A brief description of each critical habitat unit is given below:

Unit A consists of sandy openings within mixed forest habitat within Pogonip Park in the city of Santa Cruz. Of the 166-ha (411-acre) unit, 100 ha (248 ac) are owned and managed by the city; a portion of the remaining 66 adjacent hectares (163 ac) are owned by the University of California, and the remainder are privately owned.

Unit B consists of an old field/grassland unit within the city limits of Santa Cruz. The 5 ha (11-ac) unit is privately owned.

Unit C consists of sandy openings within maritime chaparral. The 32-ha (78-ac) unit is comprised entirely of private lands.

Unit D consists of grasslands and sandy areas in openings within maritime chaparral and oak woodland. This 3.8-ha (9.5-ac) unit is comprised of local agency lands (Aptos High School District) and private lands.

Unit E consists of grasslands within maritime chaparral and oak woodland on the Buena Vista parcel. The 75-ha (185-ac) unit is comprised entirely of private lands. The Service has prepared a proposal to allow addition of the Buena Vista parcel into the Ellicott Slough National Wildlife Refuge (Service 1998b); however, its future disposition is uncertain.

Unit F consists of coastal dune habitat, and is identical to critical habitat that is being proposed for the Chorizanthe pungens var. pungens. All of this 53-ha (132-ac) unit is within Sunset State Beach.

Unit G consists of coastal dune habitat on the dunes at former Fort Ord, and is south of Marina State Beach and north of Del Monte. All this 326-ha (804-ac) unit consists of former Fort Ord lands that are being transferred to the California State Parks system.

The approximate areas of proposed critical habitat by land ownership are shown in Table 5. Lands proposed are under private, City, and State jurisdiction, with Federal lands including lands managed by the DOD at former Fort Ord.

Section 7(a) of the Act requires Federal agencies to ensure that actions they fund, authorize, or carry out do not jeopardize the continued existence of a listed species or destroy or adversely modify its critical habitat. Destruction or adverse modification of critical habitat is defined by our regulations as a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical (50 CFR 402.02). 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 means that Federal agencies must 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 or proposed. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with us. If, at the conclusion of consultation, we issue a biological opinion concluding that 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.

Section 7(a)(4) requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of proposed critical habitat. Conference reports provide conservation recommendations to assist the agency in eliminating conflicts that may be caused by the proposed action. The conservation recommendations in a conference report are advisory. We may issue a formal conference report if requested by a Federal agency. Formal conference reports on proposed critical habitat contain a biological opinion that is prepared according to 50 CFR 402.14, as if critical habitat were designated. We may adopt the formal conference report as the biological opinion when the critical habitat is designated, if no significant new information or changes in the action alter the content of the opinion (see 50 CFR 402.10(d)).

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 is authorized by law. Consequently, some Federal agencies may request consultation or conferencing with us on actions for which formal consultation has been completed if those actions may affect designated critical habitat or adversely modify or destroy proposed critical habitat.

Activities on lands being proposed as critical habitat for the Chorizanthe robusta var. robusta or activities that may indirectly affect such lands and that are conducted by a Federal agency, funded by a Federal agency or that require a permit from a Federal agency will be subject to the section 7 consultation process. Federal actions not affecting critical habitat, as well as actions on non-Federal lands that are not federally funded or permitted, will not require section 7 consultation.

Section 4(b)(8) of the Act requires us to briefly describe and evaluate in any proposed or final regulation that designates critical habitat those activities involving a Federal action that may adversely modify such habitat or that may be affected by such designation. Activities that may destroy or adversely modify critical habitat would be those that alter the primary constituent elements to the extent that the value of critical habitat for both the survival and recovery of Chorizanthe robusta var. robusta is appreciably reduced. We note that such activities may also jeopardize the continued existence of the species. Activities that, when carried out, funded, or authorized by a Federal agency, may directly or indirectly destroy or adversely modify critical habitat include, but are not limited to:

(1) Activities that appreciably degrade or destroy native dune, scrub, maritime chaparral, and oak woodland communities, including but not limited to inappropriately managed livestock grazing, clearing, discing, introducing or encouraging the spread of nonnative species, and heavy recreational use.

Designation of critical habitat could affect the following agencies and/or actions: development on private lands requiring permits from Federal agencies, such as 404 permits from the Army Corps of Engineers or permits from Housing and Urban Development, military activities of the Department of Defense on their lands or lands under their jurisdiction, the release of authorization of release of biological control agents by the Department of Agriculture, regulation by the Environmental Protection Agency of activities affecting point source pollution discharges into waters of the U.S., authorization of Federal grants or loans, and land acquisition by the Service's Refuges Division. These actions would be subject to the section 7 consultation process. Where federally listed wildlife species occur on private lands proposed for development, any habitat conservation plans submitted by the applicant to secure a permit to take according to section 10(a)(1)(B) of the Act would be subject to the section 7 consultation process. Several other species that are listed under the Act occur in the same general areas as Chorizanthe robusta var. robusta. Chorizanthe pungens var. pungens occurs in close proximity to Chorizanthe robusta var. robusta at Sunset State Beach and the dunes at former Fort Ord; sand gilia (Gilia tenuiflora ssp. arenaria) occurs at Sunset State Beach and the dunes at former Fort Ord; western snowy plover occurs at Sunset State Beach and the dunes at former Fort Ord; and the Santa Cruz long-toed salamander (Ambystoma macrodactylum croceum) occurs on the Buena Vista property.

We have prepared a proposal to allow addition of the Buena Vista parcel into the Ellicott Slough National Wildlife Refuge (Service 1998). At this time, the parcel remains in private ownership and its future disposition is uncertain. However, should the parcel be acquired by the Service in the future, this action would be subject to the section 7 consultation process.

If you have questions regarding whether specific activities will likely constitute adverse modification of critical habitat, contact the Field Supervisor, Ventura Fish and Wildlife Office (see ADDRESSES section). Requests for copies of the regulations on listed wildlife and inquiries about prohibitions and permits may be addressed to the U.S. Fish and Wildlife Service, Portland Regional Office, 911 NE 11th Avenue, Portland, Oregon 97232-4181 (503/231-6131, FAX 503/231-6243).

Currently, there are no HCPs that include Chorizanthe robusta var. robusta as a covered species. However, we believe that in most instances the benefits of excluding habitat conservation plans (HCPs) from critical habitat designations will outweigh the benefits of including them. In the event that future HCPs covering C. r. var. robusta 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 this species. This will be accomplished 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 would provide an opportunity for more intensive data collection and analysis regarding the use of particular habitat areas by C. r. var. robusta. The process would also enable 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 also provide technical assistance and work closely with applicants throughout the development of any future HCPs to identify lands essential for the long-term conservation of C. r. var. robusta and appropriate management for those lands. The take minimization and mitigation measures provided under such HCPs would be expected to protect the essential habitat lands proposed as critical habitat in this rule.

Section 4(b)(2) of the Act requires us to designate critical habitat on the basis of the best scientific and commercial information 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 concerned. We will conduct an analysis of the economic impacts of designating these areas as critical habitat prior to a final determination. When completed, we will announce the availability of the draft economic analysis with a notice in the Federal Register, and we will open a comment period at that time.

We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule are hereby solicited. Comments particularly are sought concerning:

(1) The reasons why any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefit of designation will outweigh any threats to the species due to designation;

(2) Specific information on the amount and distribution of Chorizanthe robusta var. robusta habitat, and what habitat is essential to the conservation of the species and why;

(3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat;

(4) Any economic or other impacts resulting from the proposed designation of critical habitat, in particular, any impacts on small entities or families;

(5) Economic and other values associated with designating critical habitat for Chorizanthe robusta var. robusta such as those derived from non-consumptive uses (e.g., hiking, camping, bird-watching, enhanced watershed protection, improved air quality, increased soil retention, “existence values,” and reductions in administrative costs); and

(6) The methods we might use, under section 4(b)(2) of the Act, in determining if the benefits of excluding an area from critical habitat outweigh the benefits of specifying the area as critical habitat.

If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods. You may mail comments to the Assistant Field Supervisor, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, California 93003. You may also comment via the Internet to robustsf@r1.fws.gov. Please submit Internet comments as an ASCII file avoiding the use of special characters and any form of encryption. Please also include “Attn: [1018-AH83] and your name and return address in your Internet message.” If you do not receive a confirmation from the system that we have received your Internet message, contact us directly by calling our Ventura Fish and Wildlife Office at phone number 805-644-1766. Please note that the Internet address “robustsf@r1.fws.gov” will be closed out at the termination of the public comment period. Finally, you may hand-deliver comments to our Ventura office at 2493 Portola Road, Suite B, Ventura, California. Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.

In accordance with our policy published on July 1, 1994 (59 FR 34270), we will solicit the expert opinions of three appropriate and independent specialists regarding this proposed rule. The purpose of such review is to ensure listing decisions are based on scientifically sound data, assumptions, and analyses. We will send these peer reviewers copies of this proposed rule immediately following publication in the Federal Register. We will invite these peer reviewers to comment, during the public comment period, on the specific assumptions and conclusions regarding the proposed listing and designation of critical habitat.

We will consider all comments and information received during the 60-day comment period on this proposed rule during preparation of a final rulemaking. Accordingly, the final determination may differ from this proposal.

The Act provides for one or more public hearing on this proposal, if requested. Requests must be received within 45 days of the date of publication of the proposal in the Federal Register. Such requests must be made in writing and be addressed to the Field Supervisor (see ADDRESSES section). We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings in the Federal Register and local newspapers at least 15 days prior to the first hearing.

Executive Order 12866 requires each agency to write regulations and notices that are easy to understand. We invite your comments on how to make this proposed rule easier to understand, including answers to questions such as the following—(1) Are the requirements in the proposed rule clearly stated? (2) Does the proposed rule contain technical jargon that interferes with the clarity? (3) Does the format of the proposed rule (grouping and order of the sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the description of the notice in the “Supplementary Information” section of the preamble helpful in understanding the notice? What else could we do to make this proposed rule easier to understand?

Send a copy of any comments that concern how we could make this rule easier to understand to the office identified in the ADDRESSES section at the beginning of this document.

In accordance with Executive Order (EO) 12866, this document is a significant rule and was reviewed by the Office of Management and Budget (OMB). We are preparing a draft analysis of this proposed action, which will be available for public comment to determine the economic consequences of designating the specific areas as critical habitat. The availability of the draft economic analysis will be announced in the Federal Register so that it is available for public review and comments.

(a) While we will prepare an economic analysis to assist us in considering whether areas should be excluded pursuant to section 4 of the Act, we do not believe this rule will have an annual economic effect of $100 million or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. Therefore we do not believe a cost benefit and economic analysis pursuant to EO 12866 is required.

Under the Act, critical habitat may not be adversely modified by a Federal agency action; critical habitat does not impose any restrictions on non-Federal persons unless they are conducting activities funded or otherwise sponsored, authorized, 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 this species and its needs, we conclude that any Federal action or authorized action that could potentially cause an adverse modification of the proposed critical habitat would currently be considered as “jeopardy” under the Act in areas occupied by the species. 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. The designation of areas as critical habitat where section 7 consultations would not have occurred but for the critical habitat designation may have impacts on what actions may or may not be conducted by Federal agencies or non-Federal persons who receive Federal authorization or funding that are not attributable to the species listing. We will evaluate any impact through our economic analysis (under section 4 of the Act; see Economic Analysis section of this rule). Non-Federal persons that do not have a Federal “sponsorship” in their actions are not restricted by the designation of critical habitat.

(b) This rule will not create inconsistencies with other agencies' actions. As discussed above, Federal agencies have been required to ensure that their actions not jeopardize the continued existence of Chorizanthe robusta var. robusta since its listing in 1994. The prohibition against adverse modification of critical habitat would not be expected to impose any additional restrictions to those that currently exist in the proposed critical habitat on currently occupied lands.

We will evaluate any impact of designating areas where section 7 consultations would not have occurred but for the critical habitat designation through our economic analysis. Because of the potential for impacts on other Federal agency activities, we will continue to review this proposed action for any inconsistencies with other Federal agency actions.

(c) This proposed rule, if made final, 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 resulting from critical habitat designation will have any incremental effects in areas of occupied habitat.

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

In the economic analysis (required under section 4 of the Act), we will determine whether designation of critical habitat will 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 for areas where section 7 consultations would have occurred as a result of the species being listed under the Act. We will also evaluate whether designation includes any areas where section 7 consultations would occur only as a result of the critical habitat designation, and in such cases determine if it will significantly affect a substantial number of small entities. As indicated on Table 1 (see “Proposed Critical Habitat Designation” section), we have proposed to designate property owned by Federal, State, and County governments, and private property.

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

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

(2) Development on private lands requiring permits from other Federal agencies such as Housing and Urban Development;

(3) Military activities of the U.S. Department of Defense (Navy and Army) on their lands or lands under their jurisdiction;

(4) The release or authorization of release of biological control agents by the U.S. Department of Agriculture;

(5) Regulation of activities affecting point source pollution discharges into waters of the United States by the Environmental Protection Agency under section 402 of the Clean Water Act.;

(6) Authorization of Federal grants or loans; and

(7) The potential acquisition of the Buena Vista parcel by the Service's Refuges Division. Potentially, some of these activities sponsored by Federal agencies within the proposed 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 in 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, applicable restrictions of the Act remain in effect, and this rule will have no additional restrictions.

In the economic analysis, we will determine whether designation of critical habitat will 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. As discussed above, we anticipate that the designation of critical habitat will not have any additional effects on these activities in areas where section 7 consultations should occur regardless of the critical habitat designation. We will evaluate through our economic analysis any impact of designating areas where section 7 consultations would not have occurred but for the critical habitat designation.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 August 25, 2000, et seq.):

(a) We believe 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 programs having Federal funds, permits, or other authorized activities must ensure that their actions will not adversely affect 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 of occupied areas. In our economic analysis we will evaluate any impact of designating areas where section 7 consultations would not have occurred but for the critical habitat designation.

(b) This rule will not produce a Federal mandate of $100 million or greater in any year, that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no obligations on State or local governments.

In accordance with Executive Order 12630, this 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 current restrictions on private property concerning this plant species. We do not anticipate that property values will be affected by the critical habitat designations. Landowners in areas that are included in the designated critical habitat will continue to have opportunity to utilize their property in ways consistent with State law and with the continued survival of the plant species.

In accordance with Executive Order 13132, the rule does not have significant Federalism effects. A Federalism assessment is not required. As discussed above, the designation of critical habitat in areas currently occupied by Chorizanthe robusta var. robusta would have little incremental impact on State and local governments and their activities. The designations may have some benefit to these governments in that the areas essential to the conservation of this species are more clearly defined, and the primary constituent elements of the habitat necessary to the survival of the species are identified. While this definition and identification does not alter where and what federally sponsored activities may occur, it may assist these local governments in long range planning rather than waiting for case-by-case section 7 consultation to occur.

In accordance with Executive Order 12988, the Department of the Interior's Office of the Solicitor has determined that this rule does not unduly burden the judicial system and does meet the requirements of sections 3(a) and 3(b)(2) of the Order. We designate critical habitat in accordance with the provisions of the Endangered Species Act. The rule uses standard property descriptions and identifies the primary constituent elements within the designated areas to assist the public in understanding the habitat needs of Chorizanthe robusta var. robusta.

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 an Environmental Assessment and/or an Environmental Impact Statement as defined by the National Environmental Policy Act of 1969 need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act, as amended. A notice outlining our reason for this determination was published in the Federal Register on October 25, 1983 (48 FR 49244). This proposed rule does not constitute a major Federal action significantly affecting the quality of the human environment.

In accordance with 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 manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with federally recognized Tribes on a Government-to-Government basis. The proposed designation of critical habitat for Chorizanthe robusta var. robusta does not contain any Tribal lands or lands that we have identified as impacting Tribal trust resources.

A complete list of all references cited herein, as well as others, is available upon request from the Ventura Fish and Wildlife Office (see ADDRESSES section).

The author of this proposed rule is Constance Rutherford, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, California 93003 (805/644-1766).

Accordingly, the Service hereby proposes to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

Chorizanthe pungens var. pungens is endemic to sandy soils in coastal areas in southern Santa Cruz and northern Monterey Counties, and in the Salinas Valley in interior Monterey County. In California, the spineflower genus (Chorizanthe) in the buckwheat family (Polygonaceae) comprises species of wiry annual herbs that inhabit dry sandy soils, both along the coast and inland. Because of the patchy and limited distribution of such soils, many species of Chorizanthe tend to be highly localized in their distribution.

The overall appearance of Chorizanthe pungens var. pungens is of a low-growing herb that is soft-hairy and grayish or reddish in color. The plant has a prostrate to slightly ascending habit, with large individuals reaching 50 centimeters (cm) (20 inches (in)) or more in diameter. This taxon is distinguished by white (rarely pinkish) scarious margins on the lobes of the involucre that subtend the white- to rose-colored flowers. The aggregate of flowers (heads) tend to be small (less than cm (0.4 in) in diameter) and either distinctly or indistinctly aggregate. Chorizanthe pungens var. pungens is one of two varieties of the species Chorizanthe pungens. The other variety (Chorizanthe pungens var. hartwegiana), known as Ben Lomond spineflower, is restricted to the Santa Cruz Mountains, generally between Scotts Valley and Ben Lomond. The range of C. p. var. pungens partially overlaps with Chorizanthe robusta var. robusta (robust spineflower), another closely related taxon in the Pungentes section of the genus, in southern Santa Cruz County. Chorizanthe pungens var. hartwegiana and Chorizanthe robusta var. robusta are both endangered species; for a detailed description of these related taxa see the Recovery Plan for Seven Coastal Plants and the Myrtle's Silverspot Butterfly (Service 1998), the Draft Recovery Plan for the Robust Spineflower (Service 2000), and references within these plans.

Chorizanthe pungens var. pungens is a short-lived annual species. It germinates during the winter months and flowers from April through June; although pollination ecology has not been studied for this taxon, C. p. var. pungens is likely visited by a wide array of pollinators; observations of pollinators on other species of Chorizanthe that occur in Santa Cruz County have included leaf cutter bees (megachilids), at least six species of butterflies, flies, and sphecid wasps (R. Morgan, biologist, Soquel, CA, pers. comm. 2000). Each flower produces one seed; depending on the vigor of an individual plant, dozens, if not hundred of seeds could be produced. The importance of pollinator activity in seed set has been demonstrated by the production of seed with low viability where pollinator access was limited (Harding Lawson Associates 2000). Seed is collectable through August. The plants turn a rusty hue as they dry through the summer months, eventually shattering during the fall. Seed dispersal is facilitated by the involucral spines, which attach the seed to passing animals. While animal vectors most likely facilitate dispersal between colonies and populations, the prevailing coastal winds undoubtedly play a part in scattering seed within colonies and populations.

The locations where Chorizanthe pungens var. pungens occurs, with the exception of one (Soledad), are subject to a mild maritime climate, where fog helps keep summer temperatures cool and winter temperatures relatively warm, and provides moisture in addition to the normal winter rains. Chorizanthe pungens var. pungens is found in a variety of seemingly disparate habitat types, including active coastal dunes, grassland, scrub, chaparral, and woodland types on interior upland sites; and interior floodplain dunes. However, all of these habitat types include microhabitat characteristics that are favored by C. p. var. pungens. First, all sites are on sandy soils; whether the origin of the soils are from active dunes, interior fossil dunes, or floodplain alluvium is apparently unimportant. Second, these sites are relatively open and free of other vegetation. In grassland and oak woodland communities, abundant annual grasses may outcompete C. p. var. pungens, while management of grass species, either through grazing, mowing or fire, may allow the spineflower to persist. In scrub and chaparral communities, C p. var. pungens does not occur under dense stands, but will occur between more widely spaced shrubs.

Chorizanthe pungens var. pungens is generally distributed along the rim of Monterey Bay in southern Santa Cruz and northern Monterey Counties, and inland along the coastal plain of the Salinas Valley. At coastal sites ranging from the Monterey Peninsula north to Manresa State Beach, C. p. var. pungens is found in active coastal dune systems, and on coastal bluffs upon which windblown sand has been deposited. At one historical site on the coast near San Simeon in San Luis Obispo County, the C. p. var. pungens has not been seen since it was first collected in 1842 (CNDDB 2000, D. Keil, California Polytechnic University, San Luis Obispo, pers. comm. 2000).

On coastal dunes, the distribution of suitable habitat is subject to dynamic shifts caused by patterns of dune mobilization, stabilization, and successional trends in coastal dune scrub that increase in cover over time. Accordingly, individual colonies of Chorizanthe pungens var. pungens, found in gaps between stands of scrub, shift in distribution and size over time. Other native plants associated with C. p.s var. pungens include Ambrosia chamissonis (beach bur), Artemisia pycnocephala (coastal sagewort), Ericameria ericoides (mock heather), Castilleja latifolia (Monterey Indian paintbrush), and Lathyrus littoralis (beach pea). At some northern Monterey County locations, C. p. var. pungens occurs in close proximity to the endangered Gilia tenuiflora ssp. arenaria (sand gilia), Erysimum menziesii ssp. menziesii (Menzies' wallflower), Euphilotes enoptes smithi (Smith's blue butterfly), and the threatened Charadrius alexandrinus nivosus (snowy plover).

Portions of the coastal dune and coastal scrub communities that support Chorizanthe pungens var. pungens have been eliminated or altered by recreational use, industrial and urban development, and military activities. Dune communities have also been altered in composition by the introduction of non-native species, especially Carpobrotus species (sea-fig or iceplant) and Ammophila arenaria (European beachgrass), in an attempt to stabilize shifting sands. In the last decade, significant efforts have been made to restore native dune communities, including the elimination of these non-native species.

At more inland sites, Chorizanthe pungens var. pungens occurs on sandy, well-drained soils in a variety of plant communities, most frequently maritime chaparral, valley oak woodlands, and grasslands. The plant probably has been extirpated from a number of historical locations in the Salinas Valley, primarily due to conversion of the original grasslands and valley oak woodlands to agricultural crops (Reveal & Hardham 1989). Significant populations of C. p. var. pungens occur on lands that are referred to as former Fort Ord (U.S. Army Corps of Engineers (ACOE) 1992). Within grassland communities, C. p. var. pungens occurs along roadsides, in firebreaks, and in other disturbed sites, while in oak woodland, chaparral, and scrub communities, they occur in sandy openings between shrubs. In older stands with a high cover of shrubs, the plant are restricted to roadsides, firebreaks, and trails that bisect these communities. At former Fort Ord, the highest densities of C. p. var. pungens are located in the central portion of the firing range, where disturbance is the most frequent. This pattern of distribution and densities of the C. p. var. pungens on former Fort Ord indicate that the very activities that have disturbed C. p.s var. pungens habitat have also created the open conditions that result in high densities of the plant. Prior to onset of human use of this area, C. p. var. pungens may have been restricted to openings created by wildfires within these communities (Service 1998).

The southwestern edge of Chorizanthe pungens var. pungens habitat on former Fort Ord was once continuous with habitat found in the community of Del Rey Oaks and at the Monterey Airport (Deb Hillyard, ecologist, California Department of Fish and Game, pers. comm. 2000). Other inland sites that support C. p. var. pungens are located in the area between Aptos and La Selva Beach in Santa Cruz County, and near Prunedale in northern Monterey County. At some of these locations, C. p. var. pungens occurs in close proximity with the endangered Piperia yadonii (Yadon's piperia) and Chorizanthe robusta var. robusta.

Farther up the Salinas River, Chorizanthe pungens var. pungens was recently found on a dune located within the river floodplain near Soledad, Monterey County (CNDDB 2000). Two historic sites for C. p. var. pungens occur near here. One, near Mission Soledad, was collected once in 1881; the other, near San Lucas along the Salinas River, was collected once in 1935. Due to conversion to agriculture and channelization activities along the Salinas River over the last century, C. p. var. pungens has most likely been extirpated from these locations. The dune near Soledad is the only one of its size and extent between there and the river mouth (Brad Olsen, East Bay Regional Parks District, pers. comm. 2000).

Federal government actions for Chorizanthe pungens var. pungens began when we published an updated notice of review for plants on December 15, 1980 (45 FR 82480). This notice included Chorizanthe pungens var. pungens as a category 2 candidate (species for which data in our possession indicate listing may be appropriate, but for which additional biological information is needed to support a proposed rule). In the September 27, 1985, revised notice of review for plants (50 FR 39526) and in the February 21, 1990 (55 FR 6184) revised notice of review for plants, Chorizanthe pungens var. pungens was again included as a category 2 candidate.

On October 24, 1991 (56 FR 55107), we published a proposal to list Chorizanthe pungens var. pungens, along with three other varieties of Chorizanthe, (Chorizanthe pungens var. hartwegiana, Chorizanthe robusta var. hartwegii, Chorizanthe robusta var. robusta), and Erysimum teretifolium as endangered species. The final rule listing C. p. var. pungens as a threatened species was published on February 4, 1994 (59 FR 5499).

Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that designation of critical habitat is not prudent when one or both of the following situations exist: (1) the species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species. At the time Chorizanthe pungens var. pungens was listed, we found that designation of critical habitat for C. p. var. pungens was prudent but not determinable at the time of listing, and that designation of critical habitat would occur once we have gathered the necessary data.

On June 30, 1999, our failure to designate critical habitat for Chorizanthe pungens var. pungens and three other species within the time period mandated by 16 U.S.C. 1533(b)(6)(C)(ii) was challenged in Center for Biological Diversity v. Babbitt (Case No. C99-3202SC). On August 30, 2000, the U.S. District Court for the Northern District of California (Court) directed us to publish a proposed critical habitat designation within 60 days of the Court's order and a final critical habitat designation no later than 120 days after the proposed designation is published. On October 16, 2000, the Court granted the government's request for a stay of this order. Subsequently, by a stipulated settlement agreement signed by the parties on November 20, 2000, we agreed to proposed critical habitat for the C. p. var. pungens by January 15, 2001.

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 in accordance with 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 considerations or protection; and, (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such 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 or a threatened species to the point at which listing under the Act is no longer necessary.

Critical habitat receives protection under section 7 of the Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7 also requires conferences on Federal actions that are likely to result in the destruction or adverse modification of critical habitat. In our regulations at 50 CFR 402.02, we define destruction or adverse modification as “. . . the direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.” Aside from the added protection that may be provided under section 7, the Act does not provide other forms of protection to lands designated as critical habitat. Because consultation under section 7 of the Act does not apply to activities on private or other non-Federal lands that do not involve a Federal nexus, critical habitat designation would not afford any additional protections under the Act against such activities.

In order to be included in a critical habitat designation, the habitat must first be “essential to the conservation of the species.” Critical habitat designations identify, to the extent known using the best scientific and commercial data available, habitat areas that provide essential life cycle needs of the species (i.e., areas on which are found the primary constituent elements, as defined at 50 CFR 424.12(b)).

Section 4 requires that we designate critical habitat at the time of listing and based on what we know at the time of the designation. When we designate critical habitat at the time of listing or under short court-ordered deadlines, we will often not have sufficient information to identify all areas of critical habitat. We are required, nevertheless, to make a decision and thus must base our designations on what, at the time of designation, we know to be critical habitat.

Within the geographic area occupied by the species, we will designate only areas currently known to be essential. Essential areas should already have the features and habitat characteristics that are necessary to sustain the species. We will not speculate about what areas might be found to be essential if better information became available, or what areas may become essential over time. If the information available at the time of designation does not show that an area provides essential life cycle needs of the species, then the area should not be included in the critical habitat designation. Within the geographic area occupied by the species, we will not designate areas that do not now have the primary constituent elements, as defined at 50 CFR 424.12(b), which provide essential life cycle needs of the species.

Our regulations state that, “The Secretary shall designate as critical habitat areas outside the geographic area presently occupied by the species only when a designation limited to its present range would be inadequate to ensure the conservation of the species.” (50 CFR 424.12(e)). Accordingly, when the best available scientific and commercial data do not demonstrate that the conservation needs of the species require designation of critical habitat outside of occupied areas, we will not designate critical habitat in areas outside the geographic area occupied by the species.

Our Policy on Information Standards Under the Endangered Species Act, published in the Federal Register on July 1, 1994 (59 FR 34271), provides criteria, establishes procedures, and provides guidance to ensure that our decisions represent the best scientific and commercial data available. It requires our biologists, to the extent consistent with the Act and with the use of the best scientific and commercial data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When determining which areas are critical habitat, a primary source of information should be the listing package for the species. Additional information may be obtained from a recovery plan, articles in peer-reviewed journals, conservation plans developed by states and counties, scientific status surveys and studies, and biological assessments or other unpublished materials (i.e., gray literature).

Habitat is often dynamic, and populations may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the recovery of the species. For these reasons, all should understand that critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery. Areas outside the critical habitat designation will continue to be subject to conservation actions that may be implemented under section 7(a)(1) and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard and the prohibitions of section 9, as determined on the basis of the best available information at the time of the action. We specifically anticipate that federally funded or assisted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome.

As required by the Act and regulations (section 4(b)(2) and 50 CFR 424.12) we used the best scientific information available to determine areas that contain the physical and biological features that are essential for the survival and recovery of Chorizanthe pungens var. pungens. This information included information from the California Natural Diversity Data Base (CNDDB 2000), soil survey maps (Soil Conservation Service 1978, 1979), recent biological surveys and reports, our recovery plan for this species, additional information provided by interested parties, and discussions with botanical experts. We also conducted site visits, either cursory or more extensive, and frequently accompanied by agency representatives, at a number of locations managed by local, state or Federal agencies, including Manresa, Sunset, Marina, and Asilomar State Beaches, Bureau of Land Management lands at former Fort Ord, Moss Landing Marine Laboratory, and Manzanita County Park.

Each of the critical habitat units includes areas that are unoccupied by Chorizanthe pungens var. pungens. Determining the specific areas that this taxon occupies is difficult for several reasons: (1) the distribution of Chorizanthe pungens var. pungens appears to be more closely tied to the presence of sandy soils than to specific plant communities; the plant communities may undergo changes over time, which, due to the degree of cover that is provided by that vegetation type, may either favor the presence of Chorizanthe pungens var. pungens or not; (2) the way the current distribution of Chorizanthe pungens var. pungens is mapped can be variable, depending on the scale at which patches of individuals are recorded (e.g. many small patches versus one large patch); and (3) depending on the climate and other annual variations in habitat conditions, the extent of the distributions may either shrink and temporarily disappear, or, if there is a residual seedbank present, enlarge and cover a more extensive area. Therefore, patches of unoccupied habitat are interspersed with patches of occupied habitat; the inclusion of unoccupied habitat in our critical habitat units reflects the dynamic nature of the habitat and the life history characteristics of this taxon.

In accordance with section 3(5)(A)(I) of the Act and regulations at 50 CFR 424.12, in determining which areas to propose as critical habitat, we consider those physical and biological features (primary constituent elements) that are essential to the conservation of the species and that may require special management considerations or protection. These 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.

Little is known about the specific physical and biological requirements of Chorizanthe pungens var. pungens beyond that described in the Background section of this proposed rule.

Several coastal dune restoration efforts have included measures to propagate and reintroduce Chorizanthe pungens var. pungens, notably at Moss Landing North Harbor, Pajaro Dunes, and the University of California's Moss Landing Marine Laboratory (MLML). Such efforts have contributed to our understanding that C. p. var. pungens readily grows where suitable sandy substrates occur and competition with other plant species is minimal (Harding Lawson Associates 2000; Joey Dorell-Canepa, biologist, pers. comm. 2000; Peter Slattery, dune ecologist, MLML, pers. comm. 2000). Where C. p. var. pungens occurs within native plant communities, along the coast as well as at more interior sites, it occupies microhabitat sites found between scrub and shrub stands where there is little cover from other herbaceous species. Where C. p. var. pungens occurs within grassland communities, the density of C. p. var. pungens may decrease with an increase of the density of other herbaceous species.

As has been observed at Fort Ord, human caused disturbance, such as scraping along roadsides and firebreaks can favor the abundance of Chorizanthe pungens var. pungens by reducing competition from other herbaceous species. However, because such disturbance can also promote the spread and establishment of non-native species, the disturbance would need to be repeated frequently to maintain the establishment of C. p. var. pungens. Such intensive management may not be practical in all areas where C. p. var. pungens habitat includes a complement of non-native species. Moreover, while the presence of C. p.s var. pungens could be maintained in areas with a high abundance of non-native species, the habitat quality of these areas may be less than areas where the presence of non-native species is minimal.

Based on our knowledge to date, the primary constituent elements of critical habitat for Chorizanthe pungens var. pungens are:

(1) sandy soils associated with active coastal dunes, coastal bluffs with a deposition of windblown sand, inland sites with sandy soils, and interior floodplain dunes;

(2) plant communities that support associated species, including coastal dune, coastal scrub, grassland, maritime chaparral, oak woodland, and interior floodplain dune communities, and have a structure such that there are openings between the dominant elements (e.g. scrub, shrub, oak trees, clumps of herbaceous vegetation);

(3) no or little cover by non-native species which compete for resources available for growth and reproduction of Chorizanthe pungens var. pungens;

(4) Pollinator activity between existing colonies of Chorizanthe pungens var. pungens;

(5) Physical processes, such as occasional soil disturbance, that support natural dune dynamics along coastal areas; and

(6) Seed dispersal mechanisms between existing colonies and other potentially suitable sites.

We selected critical habitat areas to provide for the conservation of Chorizanthe pungens var. pungens at five coastal sites and six inland sites where it is known to occur. Historic locations for which there are no recent records of occupancy (within the last 20 years) were not proposed for designation, including large areas of the Salinas Valley floodplain that have been converted to agriculture over the last 100 years, potentially suitable areas around San Simeon in San Luis Obispo County, and along the Salinas River near San Lucas in Monterey County.

The long-term probability of the survival and recovery of Chorizanthe pungens var. pungens is dependent upon the protection of existing population sites, and the maintenance of ecological functions within these sites, including connectivity between sites within close geographic proximity to facilitate pollinator activity and seed dispersal mechanisms, and the ability to maintain disturbance factors (for example dune dynamics in the coastal sites, and fire disturbance at inland site) that maintain the openness of vegetative cover that the species depends on. Threats to the habitat of Chorizanthe pungens var. pungens include: industrial and recreational development, road development, human and equestrian recreational use, and dune stabilization as a result of the introduction of non-native species (59 FR 5499; February 4, 1994). The areas we are proposing to designate as critical habitat provide some or all of the habitat components essential for the conservation of C. p. var. pungens. Given the species' need for an open plant community structure and the risk of non-native species, we believe that these areas may require special management considerations or protection.

In our delineation of the critical habitat units, we believed it was important to designate core areas as well as areas that occur on the periphery of the Chorizanthe pungens var. pungens' range. When possible, areas that were in close geographic proximity were included in the same unit to emphasize the need to maintain connectivity between different populations. We also included habitat for C. p. var. pungens adjacent to and contiguous to areas of known occurrences to maintain landscape scale processes. Each mapping unit contains habitat that is occupied by C. p. var. pungens. Some units were mapped with a greater precision than others, based on the available information, the size of the unit, and the time allotted to complete this proposed rule. We anticipate that in the time between the proposed rule and the final rule, and based upon the additional information received during the public comment period, that the boundaries of certain mapping units will be refined.

The proposed critical habitat units were delineated by creating data layers in a geographic information system (GIS) format of the areas of known occurrences of Chorizanthe pungens var. pungens, using information from the California Natural Diversity Data Base (CNDDB 2000), recent biological surveys and reports, our recovery plan for this species, and discussions with botanical experts. These data layers were created on a base of USGS 7.5′ quadrangles obtained from the State of California's Stephen P. Teale Data Center. We defined the boundaries for the proposed critical habitat units using roads and known landmarks and, if necessary, township, range, and section numbers from the public land survey.

We also considered the status of habitat conservation plan (HCP) efforts in proposing areas as critical habitat. Section 10(a)(1)(B) of the Act authorizes us to issue permits for the take of listed species incidental to otherwise lawful activities. An incidental take permit application must be supported by an HCP that identifies conservation measures that the permittee agrees to implement for the species to minimize and mitigate the impacts of the permitted incidental take. The only HCP that is operative and has an executed Implementation Agreement (IA) within critical habitat being proposed for Chorizanthe pungens var. pungens is the HCP for the North of Playa project site (Zander Associates 1995), within Sand City. Subsection 4(b)(2) of the Act allows us to exclude from critical habitat designation areas where the benefits of exclusion outweigh the benefits of designation, provided the exclusion will not result in the extinction of the species.

Habitat for Chorizanthe pungens var. pungens in the HCP plan area is already managed for the benefit of this and other covered species under the terms of the associated section 10(a)(1)(B) permit. The assurances provided through the HCP and permit are believed sufficient to provide for the conservation of C. p. var. pungens, and any additional benefit provided by designating these lands as critical habitat would be minimal at best. In contrast, the benefits of excluding lands covered by this HCP would be significant in preserving positive relationships with our conservation partners, particularly by reinforcing the regulatory assurances provided for in the implementation agreement for the HCP. Although these benefits may be relatively small in this case, we believe they outweigh the negligible benefits of designating this area as critical habitat. Furthermore, we have determined that excluding this area from critical habitat designation will not result in the extinction of the species. Consequently, these lands have not been included in this proposed critical habitat designation.

A large effort is currently underway to address the conservation needs for a number of threatened and endangered species, in addition to sensitive unlisted species, for the lands formerly known as Fort Ord. The Defense Base Realignment and Closure Commission selected the 11,340-ha (28,000-ac) Fort Ord for closure in 1991. As a requirement of a biological opinion issued by the Service in 1993, the Installation-wide Multispecies Habitat Management Plan for Former Fort Ord, California (HMP), was prepared in 1994 and revised in 1997 by the Army to address listed, proposed, candidate, and sensitive species and their habitat. The HMP provides a comprehensive plan for minimizing and mitigating impacts to sensitive species and their habitats while allowing disposal and redevelopment of the base. Over 6,070 ha (15,000 ac) would be designated for habitat conservation. Bureau of Land Management (BLM) would receive approximately 5,670 ha (14,000 ac) of undeveloped land to be managed for habitat and sensitive species. California Department of Parks and Recreation (CDPR) would receive the coastal properties, a large portion of which would be restored and managed for sensitive species. Several other entities would also receive property which they would manage for conservation of habitat and sensitive species. The remaining areas of the base, including many areas that have already been developed as part of the base operations, would be available for land development. As of September 2000, a total of approximately 4,290 ha (10,600 ac) of former Fort Ord had been transferred. Approximately 3,190 ha (7,880 ac) identified as habitat reserve were transferred, of which about 2,910 ha (7,200 ac) were transferred to BLM, 260 ha (640 ac) were transferred to the University of California, Santa Cruz, and 16 ha (40 ac) were transferred to the City of Marina.

On former Fort Ord lands, the HMP would be the basis of each HCP submitted by a non-Federal land recipient applying for a section 10(a)(1)(B) incidental take permit. A draft programmatic HCP submitted by the Fort Ord Reuse Authority is under review by the Service. Recently, the Army's ability to fully implement the HMP has come into question. If the Army is not able to fully implement those measures in the HMP that protect and conserve listed and sensitive species, then the design of reserve and development lands may need to be reevaluated. Due to this uncertainty and because the cleanup and transfer of lands is not yet complete, we are not excluding from the proposed Fort Ord critical habitat unit those portions of former Fort Ord that support Chorizanthe pungens var. pungens and are designated for development in the HMP. However, if the HMP is fully implemented and the anticipated HCPs for former Fort Ord lands are completed and implemented, then we anticipate that development according to the current HMP would not result in an adverse modification of critical habitat for C. p. var. pungens.

Throughout this designation, in selecting areas of proposed critical habitat we made an effort to avoid developed areas, such as housing developments, that are unlikely to contribute to the conservation of Chorizanthe pungens var. pungens. However, we did not map critical habitat in sufficient detail to exclude all developed areas, or other lands unlikely to contain the primary constituent elements essential for the conservation of C. p. var. pungens. Areas within the boundaries of the mapped units, such as buildings, roads, parking lots, railroads, airport runways and other paved areas, lawns, and other urban landscaped areas will not contain any 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.

The proposed critical habitat areas described below constitute our best assessment at this time of the areas needed for the conservation and recovery of Chorizanthe pungens var. pungens. Critical habitat being proposed for C. p. var. pungens includes 11 units that currently sustain the species. Protection of this proposed critical habitat is essential for the conservation of the species because the geographic range that C. p. var. pungens occupies has been reduced to so few sites that the species is threatened with extinction (59 FR 5499). The areas being proposed as critical habitat are either along the coast between Manresa State Beach in Santa Cruz County, south to Asilomar State Beach in Monterey County, or are at inland sites ranging from the Aptos area in Santa Cruz County, south to the confluence of Arroyo Seco Creek and the Salinas River in Monterey County, California, and include the appropriate dune, maritime chaparral, or oak woodland habitat that supports C. p. var. pungens. We propose to designate approximately 10,400 ha (25,800 acres) of land as critical habitat for C. p. var. pungens. Approximately 54 percent of this area consists of federal lands, while State lands comprise approximately 8 percent, County lands comprise approximately 5 percent, and private lands comprise approximately 33 percent of the proposed critical habitat.

A brief description of each critical habitat unit is given below:

Unit A consists of coastal beaches and bluffs southwest of the community of La Selva Beach in southern Santa Cruz County. This entire unit is within Manresa State Beach.

Unit B consists of coastal beaches, dunes and bluffs west of Watsonville in southern Santa Cruz County. This entire unit is within Sunset State Beach. The unit includes land from Sunset Beach Road south to Beach Road, just north of the mouth of the Pajaro River.

Unit C consists of coastal beaches, dunes and bluffs to the north and south of the community of Moss Landing in northern Monterey County. It includes lands owned and managed by the state, including portions of Zmudowski State Beach, Moss Landing State Beach, Salinas River State Beach, and Moss Landing Marine Laboratory. Local agency lands (Moss Landing North Harbor District) comprise 1 percent of the unit, while State lands comprise 66 percent, and private lands comprise 33 percent of the unit.

Unit D consists of coastal beaches, dunes and bluffs ranging from just south of the mouth of the Salinas River, south to the city of Monterey in northern Monterey County. Federal lands include a portion of the Salinas River National Wildlife Refuge, lands known as former Fort Ord, and the U.S. Navy Postgraduate School, and comprise 42 percent of the unit. State lands include Marina State Beach and Monterey State Beach and comprise 12 percent of the unit. Private lands account for 46 percent of the unit. This unit excludes an area of 1.9 ha (4.6 ac) within Sand City known as North of Playa, because a habitat conservation plan for this restoration site included Chorizanthe pungens var. pungens as a covered species.

Unit E consists of coastal dunes and bluffs near the communities of Pacific Grove and Pebble Beach on the Monterey Peninsula in northern Monterey County. The unit is comprised of state lands at Asilomar State Beach (about 24 percent) and private lands, including those near Spanish Bay (about 76 percent).

Unit F consists of grassland, maritime chaparral, and oak woodland habitat near the western terminus of Freedom Boulevard and northeast of Highway 1 in Santa Cruz County. This entire unit consists of privately owned lands.

Unit G consists of maritime chaparral habitat near the terminus of Bel Mar Dive, between Larkin Valley Road and Highway 1 in southern Santa Cruz County. This entire unit consists of privately owned lands.

Unit H consists of grassland, maritime chaparral, and oak woodland in the area around Prunedale in northern Monterey County. On the west side of Highway 101, the unit includes Manzanita County Park located between Castroville Boulevard and the highway. On the east side of the highway, the unit includes the area between Pesante Canyon Road and Vierra Canyon Road. Approximately 8 percent of the unit consists of county park land, and 92 percent is privately owned.

Unit I consists of grassland, maritime chaparral, coastal scrub, and oak woodland on the former DOD base at Fort Ord, east of the city of Seaside in northern Monterey County. Portions of Fort Ord have been transferred to the Bureau of Land Management (BLM); University of California, Santa Cruz; California State University at Monterey Bay; and local city and county jurisdictions. As of September 2000, approximately 4,290 ha (10,600 ac) of former Fort Ord had been transferred, of which about 3,190 ha (7,880 ac) have been designated as habitat reserve in the Installation-wide Multispecies Habitat Management Plan for Former Fort Ord, California (HMP). As a result of these recent transfers, approximately 7 percent of this critical habitat unit is state land and 5 percent is under local jurisdiction. We considered all other land within this unit to be under federal jurisdiction (about 88 percent).

Unit J consists of grassland, maritime chaparral, and oak woodland near the community of Del Rey Oaks, southeast of the city of Seaside in northern Monterey County. Approximately 34 percent of the unit is owned by Monterey County Airport, and 66 percent is privately owned. At one time, Chorizanthe pungens var. pungens habitat in this area was most likely continuous with habitat in the southern portion of Fort Ord. However, development in the Del Rey Oaks area has destroyed most of the intervening habitat.

Unit K consists of an interior dune in the floodplain of the Salinas River channel just south of the town of Soledad in central Monterey County. This entire unit is privately owned.

The approximate areas of proposed critical habitat by land ownership are shown in Table 1. Lands proposed are under private, County, State, and Federal jurisdiction, with Federal lands including lands managed by the DOD and BLM.

Section 7(a) of the Act requires Federal agencies to ensure that actions they fund, authorize, or carry out do not jeopardize the continued existence of a listed species or destroy or adversely modify its critical habitat. Destruction or adverse modification of critical habitat is defined by our regulations as a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical (50 CFR 402.02). 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 means that Federal agencies must 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 or proposed. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR 402. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with us. If, at the conclusion of consultation, we issue a biological opinion concluding that 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.

Section 7(a)(4) requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of proposed critical habitat. Conference reports provide conservation recommendations to assist the agency in eliminating conflicts that may be caused by the proposed action. The conservation recommendations in a conference report are advisory. We may issue a formal conference report if requested by a Federal agency. Formal conference reports on proposed critical habitat contain a biological opinion that is prepared according to 50 CFR 402.14, as if critical habitat were designated. We may adopt the formal conference report as the biological opinion when the critical habitat is designated, if no significant new information or changes in the action alter the content of the opinion (see 50 CFR 402.10 (d)).

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 is authorized by law. Consequently, some Federal agencies may request consultation or conferencing with us on actions for which formal consultation has been completed if those actions may affect designated critical habitat or adversely modify or destroy proposed critical habitat.

Activities on lands being proposed as critical habitat for the Chorizanthe pungens var. pungens or activities that may indirectly affect such lands and that are conducted by a Federal agency, funded by a Federal agency or that require a permit from a Federal agency will be subject to the section 7 consultation process. Federal actions not affecting critical habitat, as well as actions on non-Federal lands that are not federally funded or permitted, will not require section 7 consultation.

Section 4(b)(8) of the Act requires us to briefly describe and evaluate in any proposed or final regulation that designates critical habitat those activities involving a Federal action that may adversely modify such habitat or that may be affected by such designation. Activities that may destroy or adversely modify critical habitat would be those that alter the primary constituent elements to the extent that the value of critical habitat for both the survival and recovery of Chorizanthe pungens var. pungens is appreciably reduced. We note that such activities may also jeopardize the continued existence of the species. Activities that, when carried out, funded, or authorized by a Federal agency, may directly or indirectly destroy or adversely modify critical habitat include, but are not limited to:

(1) Activities that alter watershed characteristics in ways that would appreciably alter or reduce the quality or quantity of surface and subsurface flow of water needed to maintain the maritime chaparral and oak woodland communities at the inland sites. Such activities adverse to Chorizanthe pungens var. pungens could include, but are not limited to, maintaining an unnatural fire regime either through fire suppression or prescribed fires that are too frequent or poorly-timed; residential and commercial development, including road building and golf course installations; agricultural activities, including orchardry, viticulture, row crops, and livestock grazing; and vegetation manipulation such as chaining or harvesting firewood in the watershed upslope from Chorizanthe pungens var. pungens;

(2) Activities that appreciably degrade or destroy native maritime chaparral and oak woodland communities at interior sites, including but not limited to livestock grazing, clearing, discing, introducing or encouraging the spread of nonnative species, and heavy recreational use.

Designation of critical habitat could affect the following agencies and/or actions: development on private lands requiring permits from Federal agencies, such as 404 permits from the U.S. Army Corps of Engineers or permits from other Federal agencies such as Housing and Urban Development, military activities of the U.S. Department of Defense (Navy and Army) on their lands or lands under their jurisdiction, activities of the Bureau of Land Management on their lands or lands under their jurisdiction, activities of the Federal Aviation Authority on their lands or lands under their jurisdiction, the release or authorization of release of biological control agents by the U.S. Department of Agriculture, regulation of activities affecting point source pollution discharges into waters of the United States by the Environmental Protection Agency under section 402 of the Clean Water Act, construction of communication sites licensed by the Federal Communications Commission, and authorization of Federal grants or loans. Where federally listed wildlife species occur on private lands proposed for development, any habitat conservation plans submitted by the applicant to secure a permit to take according to section 10(a)(1)(B) of the Act would be subject to the section 7 consultation process. Several other species that are listed under the Act occur in the same general areas as Chorizanthe pungens var. pungens. Chorizanthe robusta var. robusta occurs in close proximity to Chorizanthe pungens var. pungens at Sunset State Beach and the dunes at former Fort Ord; sand gilia (Gilia tenuiflora ssp. arenaria) occurs at Sunset State Beach, Marina State Beach, dunes at former Fort Ord, Asilomar State Beach, and Spanish Bay; Menzies' wallflower (Erysimum menziesii ssp. menziesii) occurs at Asilomar State Beach; Smith's blue butterfly occurs at dunes from Salinas River National Wildlife Refuge south to the Naval Postgraduate School, and western snowy plover ranges from Zmudowski State Beach south along the coast to Monterey State Beach.

If you have questions regarding whether specific activities will likely constitute adverse modification of critical habitat, contact the Field Supervisor, Ventura Fish and Wildlife Office (see ADDRESSES section). Requests for copies of the regulations on listed wildlife and inquiries about prohibitions and permits may be addressed to the U.S. Fish and Wildlife Service, Portland Regional Office, 911 NE 11th Avenue, Portland, Oregon 97232-4181 (503/231-6131, FAX 503/231-6243).

Section 4(b)(2) of the Act requires us to designate critical habitat on the basis of the best scientific and commercial information 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 concerned. We will conduct an analysis of the economic impacts of designating these areas as critical habitat prior to a final determination. When completed, we will announce the availability of the draft economic analysis with a notice in the Federal Register, and we will open a comment period at that time.

We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule are hereby solicited. Comments particularly are sought concerning:

(1) The reasons why any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefit of designation will outweigh any threats to the species due to designation;

(2) Specific information on the amount and distribution of Chorizanthe pungens var. pungens habitat, and what habitat is essential to the conservation of the species and why;

(3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat;

(4) Any economic or other impacts resulting from the proposed designation of critical habitat, in particular, any impacts on small entities or families;

(5) Economic and other values associated with designating critical habitat for Polygonum such as those derived from non-consumptive uses (e.g., hiking, camping, bird-watching, enhanced watershed protection, improved air quality, increased soil retention, “existence values”, and reductions in administrative costs); and

(6) The methodology we might use, under section 4(b)(2) of the Act, in determining if the benefits of excluding an area from critical habitat outweigh the benefits of specifying the area as critical habitat.

If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods. You may mail comments to the Assistant Field Supervisor, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, California 93003. You may also comment via the Internet to montereysf@r1.fws.gov. Please submit Internet comments as an ASCII file avoiding the use of special characters and any form of encryption. Please also include “Attn: [1018-AHO4] and your name and return address in your Internet message.” If you do not receive a confirmation from the system that we have received your Internet message, contact us directly by calling our Ventura Fish and Wildlife Office at phone number 805-644-1766. Please note that the Internet address “montereysf@r1.fws.gov” will be closed out at the termination of the public comment period. Finally, you may hand-deliver comments to our Ventura office at 2493 Portola Road, Suite B, Ventura, California. Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.

In accordance with our policy published on July 1, 1994 (59 FR 34270), we will solicit the expert opinions of three appropriate and independent specialists regarding this proposed rule. The purpose of such review is to ensure listing decisions are based on scientifically sound data, assumptions, and analyses. We will send these peer reviewers copies of this proposed rule immediately following publication in the Federal Register. We will invite these peer reviewers to comment, during the public comment period, on the specific assumptions and conclusions regarding the proposed listing and designation of critical habitat.

We will consider all comments and information received during the 60-day comment period on this proposed rule during preparation of a final rulemaking. Accordingly, the final determination may differ from this proposal.

The Endangered Species Act provides for one or more public hearing on this proposal, if requested. Requests must be received within 45 days of the date of publication of the proposal in the Federal Register. Such requests must be made in writing and be addressed to the Field Supervisor (see ADDRESSES section). We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings in the Federal Register and local newspapers at least 15 days prior to the first hearing.

Executive Order 12866 requires each agency to write regulations and notices that are easy to understand. We invite your comments on how to make this proposed rule easier to understand, including answers to questions such as the following—(1) Are the requirements in the proposed rule clearly stated? (2) Does the proposed rule contain technical jargon that interferes with the clarity? (3) Does the format of the proposed rule (grouping and order of the sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the description of the notice in the “Supplementary Information” section of the preamble helpful in understanding the notice? What else could we do to make this proposed rule easier to understand?

Send a copy of any comments that concern how we could make this rule easier to understand to the office identified in the ADDRESSES section at the beginning of this document.

In accordance with Executive Order (EO) 12866, this document is a significant rule and was reviewed by the Office of Management and Budget (OMB). We are preparing a draft analysis of this proposed action, which will be available for public comment to determine the economic consequences of designating the specific areas as critical habitat. The availability of the draft economic analysis will be announced in the Federal Register so that it is available for public review and comments.

(a) While we will prepare an economic analysis to assist us in considering whether areas should be excluded pursuant to section 4 of the Act, we do not believe this rule will have an annual economic effect of $100 million or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. Therefore we do not believe a cost benefit and economic analysis pursuant to EO 12866 is required.

Under the Act, critical habitat may not be adversely modified by a Federal agency action; critical habitat does not impose any restrictions on non-Federal persons unless they are conducting activities funded or otherwise sponsored, authorized, 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 this species and its needs, we conclude that any Federal action or authorized action that could potentially cause an adverse modification of the proposed critical habitat would currently be considered as “jeopardy” under the Act in areas occupied by the species. 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. The designation of areas as critical habitat where section 7 consultations would not have occurred but for the critical habitat designation may have impacts on what actions may or may not be conducted by Federal agencies or non-Federal persons who receive Federal authorization or funding that are not attributable to the species listing. We will evaluate any impact through our economic analysis (under section 4 of the Act; see Economic Analysis section of this rule). Non-Federal persons that do not have a Federal “sponsorship” in their actions are not restricted by the designation of critical habitat.

(b) This rule will not create inconsistencies with other agencies' actions. As discussed above, Federal agencies have been required to ensure that their actions not jeopardize the continued existence of Chorizanthe pungens var. pungens since its listing in 1994. The prohibition against adverse modification of critical habitat would not be expected to impose any additional restrictions to those that currently exist in the proposed critical habitat on currently occupied lands.

We will evaluate any impact of designating areas where section 7 consultations would not have occurred but for the critical habitat designation through our economic analysis. Because of the potential for impacts on other Federal agency activities, we will continue to review this proposed action for any inconsistencies with other Federal agency actions.

(c) This proposed rule, if made final, 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 resulting from critical habitat designation will have any incremental effects in areas of occupied habitat.

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

In the economic analysis (required under section 4 of the Act), we will determine whether designation of critical habitat will 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 for areas where section 7 consultations would have occurred as a result of the species being listed under the Act. We will also evaluate whether designation includes any areas where section 7 consultations would occur only as a result of the critical habitat designation, and in such cases determine if it will significantly affect a substantial number of small entities. As indicated on Table 1 (see “Proposed Critical Habitat Designation” section), we have proposed to designate property owned by Federal, State, and County governments, and private property.

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

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

(2) Development on private lands requiring permits from other Federal agencies such as Housing and Urban Development;

(3) Military activities of the U.S. Department of Defense (Navy and Army) on their lands or lands under their jurisdiction;

(4) Activities of the Bureau of Land Management on their lands or lands under their jurisdiction;

(5) Activities of the Federal Aviation Authority on their lands or lands under their jurisdiction;

(6) The release or authorization of release of biological control agents by the U.S. Department of Agriculture;

(7) Regulation of activities affecting point source pollution discharges into waters of the United States by the Environmental Protection Agency under section 402 of the Clean Water Act;

(8) Construction of communication sites licensed by the Federal Communications Commission; and,

(9) Authorization of Federal grants or loans.

Potentially, some of these activities sponsored by Federal agencies within the proposed 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 in 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, applicable restrictions of the Act remain in effect, and this rule will have no additional restrictions.

In the economic analysis, we will determine whether designation of critical habitat will 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. As discussed above, we anticipate that the designation of critical habitat will not have any additional effects on these activities in areas where section 7 consultations should occur regardless of the critical habitat designation. We will evaluate through our economic analysis any impact of designating areas where section 7 consultations would not have occurred but for the critical habitat designation.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 August 25, 2000, et seq.):

(a) We believe 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 programs having Federal funds, permits, or other authorized activities must ensure that their actions will not adversely affect 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 of occupied areas. In our economic analysis we will evaluate any impact of designating areas where section 7 consultations would not have occurred but for the critical habitat designation.

(b) This rule will not produce a Federal mandate of $100 million or greater in any year, that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no obligations on State or local governments.

In accordance with Executive Order 12630, this 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 current restrictions on private property concerning this plant species. We do not anticipate that property values will be affected by the critical habitat designations. Landowners in areas that are included in the designated critical habitat will continue to have opportunity to utilize their property in ways consistent with State law and with the continued survival of the plant species.

In accordance with Executive Order 13132, the rule does not have significant Federalism effects. A Federalism assessment is not required. As discussed above, the designation of critical habitat in areas currently occupied by Chorizanthe pungens var. pungens would have little incremental impact on State and local governments and their activities. The designations may have some benefit to these governments in that the areas essential to the conservation of these species are more clearly defined, and the primary constituent elements of the habitat necessary to the survival of the species are identified. While this definition and identification does not alter where and what federally sponsored activities may occur, it may assist these local governments in long range planning rather than waiting for case-by-case section 7 consultation to occur.

In accordance with Executive Order 12988, the Department of the Interior's Office of the Solicitor has determined that this rule does not unduly burden the judicial system and does meet the requirements of sections 3(a) and 3(b)(2) of the Order. We designate critical habitat in accordance with the provisions of the Endangered Species Act. The rule uses standard property descriptions and identifies the primary constituent elements within the designated areas to assist the public in understanding the habitat needs of Chorizanthe pungens var. pungens.

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 an Environmental Assessment and/or an Environmental Impact Statement as defined by the National Environmental Policy Act of 1969 need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Act. A notice outlining our reason for this determination was published in the Federal Register on October 25, 1983 (48 FR 49244). This proposed rule does not constitute a major Federal action significantly affecting the quality of the human environment.

In accordance with 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 manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with federally recognized Tribes on a Government-to-Government basis. The proposed designation of critical habitat for Chorizanthe pungens var. pungens does not contain any Tribal lands or lands that we have identified as impacting Tribal trust resources.

A complete list of all references cited herein, as well as others, is available upon request from the Ventura Fish and Wildlife Office (see ADDRESSES section).

The authors of this proposed rule are Constance Rutherford and Diane Pratt, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, California 93003 (805/644-1766).

Accordingly, the Service hereby proposes to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

Polygonum hickmanii and Chorizanthe robusta var. hartwegii are endemic to Purisima sandstone and Santa Cruz mudstone in Scotts Valley in the Santa Cruz Mountains. Chorizanthe robusta var. hartwegii was listed as endangered on February 4, 1994 (59 FR 5499). Polygonum hickmanii was proposed as endangered on November 9, 2000 (65 FR 67335).

Polygonum hickmanii is a small, erect, taprooted annual in the buckwheat family (Polygonaceae). It grows from 2 to 5 centimeters (cm) (1 to 2 inches (in.)) tall, and can be either single stemmed or profusely branching near the base in more mature plants. The linear-shaped leaves are 0.5 to 3.5 cm (0.2 to 1.4 in.) long and 1 to 1.5 cm (0.4 to 0.6 in.) wide and tipped with a sharp point. The single white flowers consist of two outer tepals and three inner tepals and are found in the axils of the bracteal leaves. The plant flowers from late May to August. Seed production ranges from a few dozen in a typical individual to as many as two hundred in a particularly robust individual (R. Morgan, pers. comm. 1998). Although pollination for this species has not been studied, Morgan observed a sphecid wasp (family Sphecidae) visitation to an individual of P. hickmanii (Morgan, pers. comm. 1998). Other potential pollinators have not been identified at this time, and the degree to which P. hickmanii depends on insect pollinators (rather than being self-pollinated) has not been determined. The nearest location of a closely related species, P. parryi, is at Mount Hamilton, about 48 kilometers (km) (30 miles (mi)) inland. Polygonum hickmanii differs from P. parryi in its larger white flowers, longer leaves, larger anthers and achenes, and longer, straight stem sheath (Hinds and Morgan 1995).

Chorizanthe robusta var. hartwegii is a low-growing herb with rose-pink involucral margins confined to the basal portion of the teeth and an erect habit. The aggregate flowers (heads) are medium in size (1 to 1.5 cm (0.4 to 0.6 in.) in diameter) and distinctly aggregate. The plant germinates during the winter months and flowers from April through June. Although pollination ecology has not been studied for this taxon, it is likely visited by a wide array of pollinators; observations of pollinators on other species of Chorizanthe that occur in Santa Cruz County have included leaf cutter bees (megachilids), at least 6 species of butterflies, flies, and sphecid wasps. Each flower produces one seed; depending on the vigor of individual plants, dozens, if not hundreds, of seeds could be produced. The importance of pollinator activity in seed set has been demonstrated in another species of Chorizanthe by the production of seed with low viability where pollinator access was limited (Harding Lawson Associates 2000). Seed dispersal is facilitated by the involucral spines, which attach the seed to passing animals. Chorizanthe robusta var. hartwegii is one of two varieties of the species C. robusta. The other variety (C. robusta var. robusta), known as the robust spineflower, is known from the coast of southern Santa Cruz and northern Monterey counties and also is listed as endangered.

Polygonum hickmanii and Chorizanthe robusta var. hartwegii are known from two sites about one mile apart at the northern end of Scotts Valley in Santa Cruz County, California. The plants are found on gently sloping to nearly level fine-textured shallow soils over outcrops of Santa Cruz mudstone and Purisima sandstone (Hinds and Morgan 1995). Together they occur with other small annual herbs in patches within a more extensive annual grassland habitat. These small patches have been referred to as “wildflower fields” because they support a large number of native herbs, in contrast to the adjacent annual grasslands that support a greater number of non-native grasses and herbs. While the wildflower fields are underlain by shallow, well-draining soils, the surrounding annual grasslands are underlain by deeper soils with a greater water-holding capacity, and therefore more easily support the growth of non-native grasses and herbs. The surface soil texture in the wildflower fields tends to be consolidated and crusty rather than loose and sandy (Biotic Resources Group (BRG) 1998). Elevation of the sites is from 215 to 245 meters (m) (700 to 800 feet (ft)) (Hinds and Morgan 1995). The climate in the city of Santa Cruz, 13 km (8 mi) to the south, is characterized by an average of 76.7 cm (30 in.) of rain per year, and an average temperature of 14 degrees Celsius (57 degrees Fahrenheit) per year, while the city of Los Gatos, 16 km (10 mi) to the north, averages 129.9 cm (51 in.) of rain per year, and an average temperature of 15 degrees Celsius (58 degrees Fahrenheit) per year (Worldclimate 1998).

Polygonum hickmanii and Chorizanthe robusta var. hartwegii are associated with a number of native herbs including Lasthenia californica (goldfields), Minuartia douglasii (sandwort), Minuartia californica (California sandwort), Gilia clivorum (gilia), Castilleja densiflora (owl's clover), Lupinus nanus (sky lupine), Brodiaea terrestris (brodiaea), Stylocline amphibola (Mount Diablo cottonweed), Trifolium grayii (Gray's clover), and Hemizonia corymbosa (coast tarplant). Non-native species present include Filago gallica (filago) and Vulpia myuros (rattail) (California Natural Diversity Data Base (CNDDB) 1998; Randy Morgan, biological consultant, pers. comm. 1998). In many cases, the habitat also supports a crust of mosses and lichens (Biotic Resources Group 1998).

For purposes of this rule, a cluster of individuals of either Polygonum hickmanii or Chorizanthe robusta var. hartwegii will be referred to as a “colony”. Because of the close proximity of many of the clusters to each other, it is uncertain whether clusters of each species biologically represent patches within a metapopulation, true colonies, or separate populations. The general location of the colonies will be referred to as a “site”. Although clusters of P. hickmanii co-occur with C. robusta var. hartwegii at all sites, C. robusta var. hartwegii may occur without this association. Thus, of the two species, P. hickmanii tends to be the most restricted in distribution.

Approximately 11 colonies of Polygonum hickmanii occur on the 2 sites. Chorizanthe robusta var. hartwegii generally occurs at all the locations where Polygonum hickmanii occurs; in addition, colonies of Chorizanthe robusta var hartwegii occur at other locations at the Glenwood site and the Polo Ranch site without Polygonum hickmanii. The total number of colonies of Chorizanthe robusta var. hartwegii is difficult to count for several reasons: 1) depending on the scale at which colonies are mapped, a larger or smaller number of colonies may result, and 2) depending on the climate and other annual variations in habitat conditions, the extent of colonies may either shrink and temporarily disappear, or enlarge and merge into each other, thus appearing as larger but fewer colonies. Additional patches of suitable but unoccupied habitat for Polygonum hickmanii, Chorizanthe robusta var hartwegii, and other wildflower field taxa have been mapped on these parcels as well (Denise Duffy and Associates 1998). However, some of these patches, as well as those patches occupied by Chorizanthe robusta var hartwegii, were destroyed in 1999 during construction of Scotts Valley High School.

The first site is located north of Casa Way and west of Glenwood Drive in northern Scotts Valley. Referred to as the Glenwood site, it contains five colonies of Polygonum hickmanii and a larger number of colonies of Chorizanthe robusta var hartwegii that occur on two privately owned parcels of land. Colonies of both of these taxa are situated within a 4-hectare (ha) (9-acre (ac) preserve on a 19-ha (48-ac) parcel that is owned by the Scotts Valley Unified School District and is referred to as the “School District” colony (Denise Duffy and Associates 1998). Other colonies of both plants at the Glenwood site are located approximately 0.08 km (0.13 mi) to the west of the School District colony on a parcel of land owned by the Salvation Army (CNDDB 1998) and are referred to as the “Salvation Army” colonies. Additional colonies of Chorizanthe robusta var hartwegii are located on a parcel owned by American Dream/Glenwood L.P. which is being proposed for development. On the west side of Glenwood Drive, colonies are located in proposed open space near the proposed Seacliff neighborhood; on the east side of Glenwood Drive, colonies are located in the southern portion of the parcel that is being proposed for open space (Impact Sciences 2000a).

The second site is referred to as the “Polo Ranch” site. Located just east of Highway 17 and north of Navarra Road in northern Scotts Valley; this site is approximately 1.6 km (1 mi) east of the Salvation Army and School District colonies. Colonies within the Polo Ranch site occur on a parcel of land owned by Greystone Homes (Lyons in litt. 1997). Six colonies of Polygonum hickmanii and a larger number of colonies of Chorizanthe robusta var hartwegii occur within 0.2 km (0.1 mi) of each other on the Polo Ranch site (Lyons in litt. 1997; Impact Sciences 2000b).

Both Polyonum hickmanii and Chorizanthe robusta var. hartwegii are threatened with extinction by habitat alteration due to secondary impacts of urban development occurring within close proximity. Urban development includes the recent construction and operation of a high school; installation and maintenance of water delivery pipelines, access roads, and water tanks; and currently existing and proposed housing. Over the last decade a variety of housing proposals have been considered for two of the parcels; active proposals currently exist for both of these parcels.

The kinds of habitat alterations expected to impact Polygonum hickmanii and Chorizanthe robusta var. hartwegii as a result of development include changes in the hydrologic conditions, soil compaction; increased disturbance due from humans, pets, and bicycle traffic; the inadvertent application of herbicides and pesticides; dumping of yard wastes; and the introduction of non-native species. The proposed preserves and open space areas intended to protect P. hickmanii and C. robusta var. hartwegii are inadequate for maintaining viable populations of these species (Service in litt. 1998). Studies on habitat fragmentation and preserves established in urbanized settings have shown that these preserves gradually become destabilized from external forces (i.e., changes in the hydrologic conditions, soil compaction, etc.), resulting in preserves that are no longer able to support the species that they were established to protect (Kelly and Rotenberry 1993).

The chance of random extinction for both Polygonum hickmanii and Chorizanthe robusta var. hartwegii is also increased due to the small numbers of individuals and limited area occupied by these species (Shaffer 1981). A random environmental event (e.g., fire) or human disturbance potentially could destroy all colonies occurring on a parcel, thus reducing the advantages of redundant populations and diminishing the likelihood of long-term persistence.

On May 16, 1990, we received a petition from Steve McCabe and Randall Morgan of the Santa Cruz Chapter of the California Native Plant Society to list Chorizanthe robusta var. hartwegii as endangered. Based on a 90-day finding that the petition presented substantial information indicating that the requested action may be warranted (55 FR 46080), we initiated a status review of this taxon. On October 24, 1991 (56 FR 55107), we published a proposal to list C. robusta var. hartwegii, as an endangered species. On February 4, 1994, we published a final rule that listed C. robusta var. hartwegii, inclusive of C. robusta var. robusta, as endangered (59 FR 5499). Proposed designation of critical habitat for these taxa was believed prudent but not determinable at the time of listing. A Recovery Plan covering two insect species and four plant species from the Santa Cruz Mountains, including C. robusta var. hartwegii, was published in 1998 (Service 1998).

We first became aware of Polygonum hickmanii in 1992 during the course of proposing to list Chorizanthe robusta var. hartwegii. At that time, however, a name for the taxon had not formally been published, and therefore it could not be considered for Federal listing. Once the name, Polygonum hickmanii, was published by Hinds and Morgan (1995), we reviewed information in our existing files, in the California Natural Diversity Data Base, and new information on proposed projects being submitted to us for our review, and determined that sufficient information existed to believe that listing might be warranted. Polygonum hickmanii was included in the list of candidate species published in the Federal Register on October 25, 1999 (64 FR 57534). A proposal to list P. hickmanii as endangered was published on November 9, 2000 (65 FR 67335). At the time of the proposed listing, we determined that critical habitat for P. hickmanii was prudent, but deferred proposing critical habitat designation until a proposal to designate critical habitat could be developed for both P. hickmanii and C. robusta var. hartwegii because the two taxa share the same ecology and geographic location. Due to the ecological and geographic isolation of the two varieties of Chorizanthe, C. robusta var. robusta and C. robusta var. hartwegii, we are proposing critical habitat for C. robusta var. robusta separately but concurrently with this proposal.

Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that designation of critical habitat is not prudent when one or both of the following situations exist: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species. At the time Chorizanthe robusta var. hartwegii was listed, we found that designation of critical habitat for the species was prudent but not determinable, and that designation of critical habitat would occur once we had gathered the necessary data.

On June 30, 1999, our failure to designate critical habitat for Chorizanthe robusta (including C. robusta var. hartwegii as well as C. robusta var. robusta) and three other species within the time period mandated by 16 U.S.C. 1533(b)(6)(C)(ii) was challenged in Center for Biological Diversity v. Babbitt (Case No. C99-3202 SC). On August 30, 2000, the U.S. District Court for the Northern District of California (Court) directed us to publish a proposed critical habitat designation within 60 days of the Court's order, and a final critical habitat designation no later than 120 days after the proposed designation is published. On October 16, 2000, the Court granted the government's request for a stay of this order. Subsequently, by a stipulated settlement agreement signed by the parties on November 20, 2000, the Service agreed to proposed critical habitat for the Scotts Valley spineflower by January 15, 2001.

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 in accordance with 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 considerations or protection; and (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such 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 or a threatened species to the point at which listing under the Act is no longer necessary.

Critical habitat receives protection under section 7 of the Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7 also requires conferences on Federal actions that are likely to result in the destruction or adverse modification of critical habitat. In our regulations at 50 CFR 402.02, we define destruction or adverse modification as “* * * the direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.” Aside from the added protection that may be provided under section 7, the Act does not provide other forms of protection to lands designated as critical habitat. Because consultation under section 7 of the Act does not apply to activities on private or other non-Federal lands that do not involve a Federal nexus, critical habitat designation would not afford any additional protections under the Act against such activities.

In order to be included in a critical habitat designation, the habitat must first be “essential to the conservation of the species.” Critical habitat designations identify, to the extent known using the best scientific and commercial data available, habitat areas that provide essential life cycle needs of the species (i.e., areas on which are found the primary constituent elements, as defined at 50 CFR 424.12(b)).

Section 4 requires that we designate critical habitat at the time of listing and based on what we know at the time of the designation. When we designate critical habitat at the time of listing or under short court-ordered deadlines, we will often not have sufficient information to identify all areas of critical habitat. We are required, nevertheless, to make a decision and thus must base our designations on what, at the time of designation, we know to be critical habitat.

Within the geographic area occupied by the species, we will designate only areas currently known to be essential. Essential areas should already have the features and habitat characteristics that are necessary to sustain the species. We will not speculate about what areas might be found to be essential if better information became available, or what areas may become essential over time. If the information available at the time of designation does not show that an area provides essential life cycle needs of the species, then the area should not be included in the critical habitat designation. Within the geographic area occupied by the species, we will not designate areas that do not now have the primary constituent elements, as defined at 50 CFR 424.12(b), which provide essential life cycle needs of the species.

Our regulations state that, “The Secretary shall designate as critical habitat areas outside the geographic area presently occupied by the species only when a designation limited to its present range would be inadequate to ensure the conservation of the species.” (50 CFR 424.12(e)). Accordingly, when the best available scientific and commercial data do not demonstrate that the conservation needs of the species require designation of critical habitat outside of occupied areas, we will not designate critical habitat in areas outside the geographic area occupied by the species.

Our Policy on Information Standards Under the Endangered Species Act, published in the Federal Register on July 1, 1994 (59 FR 34271), provides criteria, establishes procedures, and provides guidance to ensure that our decisions represent the best scientific and commercial data available. It requires our biologists, to the extent consistent with the Act and with the use of the best scientific and commercial data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When determining which areas are critical habitat, a primary source of information should be the listing package for the species. Additional information may be obtained from a recovery plan, articles in peer-reviewed journals, conservation plans developed by states and counties, scientific status surveys and studies, and biological assessments or other unpublished materials (i.e., gray literature).

Habitat is often dynamic, and populations may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the recovery of the species. For these reasons, all should understand that critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery. Areas outside the critical habitat designation will continue to be subject to conservation actions that may be implemented under section 7(a)(1) and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard and the prohibitions of section 9, as determined on the basis of the best available information at the time of the action. We specifically anticipate that federally funded or assisted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome.

As required by the Act and regulations (section 4(b)(2) and 50 CFR 424.12) we used the best scientific information available to determine areas that contain the physical and biological features that are essential for the survival and recovery of Polygonum hickmanii and Chorizanthe robusta var. hartwegii. This information included information from the California Natural Diversity Data Base (CNDDB 2000), soil survey maps (Soil Conservation Service 1978, 1979), recent biological surveys and reports, our recovery plan for these species, additional information provided by interested parties, and discussions with botanical experts. We also conducted multiple site visits to the two locations that are being proposed for designation.

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to propose as critical habitat, we consider those physical and biological features (primary constituent elements) that are essential to the conservation of the species and that may require special management considerations or protection. These 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 long-term probability of the survival and recovery of Chorizanthe robusta var. hartwegii and Polygonum hickmanii is dependent upon the protection of existing population sites, and the maintenance of ecologic functions within these sites, including connectivity between colonies within close geographic proximity to facilitate pollinator activity and seed dispersal mechanisms, and the ability to maintain disturbance factors (for example, fire disturbance) that maintain the openness of plant cover that the species depend on. In addition, the small range of these two taxa makes them vulnerable to edge effects from adjacent human activities, including disturbance from trampling and recreational use, the introduction and spread of non-native species, and the application of herbicides, pesticides, and other contaminants (Conservation Biology Institute 2000).

The primary constituent elements of critical habitat for Polygonum hickmanii and Chorizanthe robusta var. hartwegii are:

(1) Thin soils that have developed over outcrops of Santa Cruz mudstone and Purisima sandstone;

(2) “Wildflower field” habitat that has developed on these thin-soiled sites;

(3) A grassland plant community that supports the “wildflower field” habitat, which is stable over time and in which nonnative species do not exist or are at a density that has little or no adverse effect on resources available for growth and reproduction of Polygonum hickmanii and Chorizanthe robusta var. hartwegii;

(4) Sites that allow each population to survive catastrophic events and recolonize adjacent suitable microhabitat sites,

(5) Pollinator activity between existing colonies of Polygonum hickmanii and Chorizanthe robusta var. hartwegii;

(6) Physical processes, such as occasional soil disturbance, that support natural dune dynamics along coastal areas;

(7) Seed dispersal mechanisms between existing colonies and other potentially suitable sites; and

(8) Sufficient integrity of the watershed above habitat for Polygonum hickmanii and Chorizanthe robusta var. hartwegii to maintain edaphic and hydrologic conditions that provide the seasonally wet substrate for growth and reproduction of Polygonum hickmanii and Chorizanthe robusta var. hartwegii.

In our delineation of the critical habitat units, we selected areas to provide for the conservation of Polygonum hickmanii and Chorizanthe robusta var. hartwegii at the only two sites where they are known to occur. The two species are currently growing on less than 0.4 ha (1 ac) of land; however, habitat is not restricted solely to the area actually occupied by the species. It must include an area that is large enough to maintain the ecological functions upon which the species depends (e.g., the hydrologic and edaphic conditions). We believe it is important to designate the area currently occupied by the two taxa that is of sufficient size to maintain landscape scale processes and to minimize the secondary impacts resulting from human occupancy and human activities occurring in adjacent areas.

The units were mapped with a degree of precision commensurate with the available information, the size of the unit, and the time allotted to complete this proposed rule. We anticipate that in the time between the proposed rule and the final rule, and based upon the additional information received during the public comment period, that the boundaries of the two mapping units will be refined. The proposed critical habitat units were delineated by creating data layers in a geographic information system (GIS) format of the areas of known occurrences of Polygonum hickmanii and Chorizanthe robusta var. hartwegii using information from the California Natural Diversity Data Base (CNDDB 2000) and the other information sources listed above. These data layers were created on a base of USGS 7.5′ quadrangle maps obtained from the State of California's Stephen P. Teale Data Center. Because the areas within proposed critical habitat boundaries are portions of the San Augustin Spanish Land Grant, they have not been surveyed according to the State Plan Coordinate System. Therefore, instead of defining proposed critical habitat boundaries using a grid of township, range, and section, we defined the boundaries for the proposed critical habitat units using known landmarks and roads.

In selecting areas of proposed critical habitat, we made an effort to avoid developed areas, such as housing developments, which are unlikely to contribute to the conservation of Polygonum hickmanii and Chorizanthe robusta var. hartwegii. However, we did not map critical habitat in sufficient detail to exclude all developed areas, or other lands unlikely to contain the primary constituent elements essential for the conservation of P. hickmanii and C. robusta var. hartwegii. Areas within the boundaries of the mapped units, such as buildings, roads, parking lots, and other paved areas, lawns, and other urban landscaped areas will not contain any 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.

The proposed critical habitat areas described below constitute our best assessment at this time of the areas needed for the species' conservation. Critical habitat is being proposed for Polygonum hickmanii and Chorizanthe robusta var. hartwegii at the only two sites where they are known to occur. We are not proposing any critical habitat units that do not contain the plants of both species. In accordance with section 3(5)(C) of the Act, we are proposing to designate critical habitat in the entire geographical area which can be occupied by the species as we find that the areas included in the proposed designation are essential to the conservation of the two species. The areas we are proposing provide the essential life cycle needs of the species and provide some or all of the habitat components essential for the conservation (primary constituent elements) of C. robusta var. hartwegii and P. hickmanii. The two areas being proposed as critical habitat are both within the city limits of Scotts Valley in Santa Cruz County, California, and include the grassland habitat that contains the smaller “wildflower field” patches. Given the threats to the habitat of these species discussed above, we believe that these areas may require special management considerations or protection.

Table 1. Approximate proposed critical habitat area (ha (ac)) by Proposed Critical Habitat Unit and land ownership. Estimates reflect the total area within critical habitat unit boundaries.

Because we consider maintaining hydrologic and edaphic conditions in these grasslands so important, the proposed critical habitat area extends outward to the following limits-(1) upslope from the occurrences of P. hickmanii and C. robusta var. hartwegii to include the upper limit of the immediate watershed; (2) downslope from the occurrences of P. hickmanii and C. robusta var. hartwegii to the point at which grassland habitat is replaced by forest habitats (oak forest, redwood forest, or mixed conifer-hardwood forest); and (3) to the boundary of existing development.

The following general areas are proposed as critical habitat (see legal descriptions for exact critical habitat boundaries).

Unit 1 consists of approximately 90 ha (222 acres) to the west of Glenwood Drive and north and northwest of Casa Way, in the City of Scotts Valley, including land owned and managed by the Salvation Army, land owned and managed by the Scotts Valley High School District as a Preserve, but excluding the rest of the High School, and to the east of Glenwood Drive, encompassing the parcel known as the Glenwood Development. All of the land proposed within this unit is privately owned.

The Polo Ranch site consists of approximately 35 ha (86 ac) to the east of Carbonera Creek on the east side of Highway 17 and north and northeast of Navarra Drive, in the City of Scotts Valley, known as the Polo Ranch, both in the County of Santa Cruz, California. All of the land being proposed for critical habitat designation is privately owned.

Section 7(a) of the Act requires Federal agencies to ensure that actions they fund, authorize, or carry out do not jeopardize the continued existence of a listed species or destroy or adversely modify its critical habitat. Destruction or adverse modification of critical habitat is defined by our regulations as a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical (50 CFR 402.02). 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 means that Federal agencies must 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 or proposed. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR 402. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with us. If, at the conclusion of consultation, we issue a biological opinion concluding that 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.

Section 7(a)(4) requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of proposed critical habitat. Conference reports provide conservation recommendations to assist the agency in eliminating conflicts that may be caused by the proposed action. The conservation recommendations in a conference report are advisory. We may issue a formal conference report if requested by a Federal agency. Formal conference reports on proposed critical habitat contain a biological opinion that is prepared according to 50 CFR 402.14, as if critical habitat were designated. We may adopt the formal conference report as the biological opinion when the critical habitat is designated, if no significant new information or changes in the action alter the content of the opinion (see 50 CFR 402.10 (d)).

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 is authorized by law. Consequently, some Federal agencies may request consultation or conferencing with us on actions for which formal consultation has been completed if those actions may affect designated critical habitat or adversely modify or destroy proposed critical habitat.

Activities on lands being proposed as critical habitat for the Polygonum hickmanii and Chorizanthe robusta var. hartwegii or activities that may indirectly affect such lands and that are conducted by a Federal agency, funded by a Federal agency or that require a permit from a Federal agency will be subject to the section 7 consultation process. Federal actions not affecting critical habitat, as well as actions on non-Federal lands that are not federally funded or permitted, will not require section 7 consultation.

Section 4(b)(8) of the Act requires us to briefly describe and evaluate in any proposed or final regulation that designates critical habitat those activities involving a Federal action that may adversely modify such habitat or that may be affected by such designation. Activities that may destroy or adversely modify critical habitat would be those that alter the primary constituent elements to the extent that the value of critical habitat for both the survival and recovery of Polygonum hickmanii or Chorizanthe robusta var. hartwegii is appreciably reduced. We note that such activities may also jeopardize the continued existence of the species. Activities that, when carried out, funded, or authorized by a Federal agency, may directly or indirectly destroy or adversely modify critical habitat include, but are not limited to:

(1) Activities that alter watershed characteristics in ways that would appreciably alter or reduce the quality or quantity of surface and subsurface flow of water needed to maintain natural grassland communities and the “wildflower field” habitat. Such activities adverse to Polygonum hickmanii and Chorizanthe robusta var. hartwegii could include, but are not limited to, vegetation manipulation such as chaining or harvesting timber in the watershed upslope from P. hickmanii and C. robusta var. hartwegii; maintaining an unnatural fire regime either through fire suppression or prescribed fires that are too frequent or poorly-timed; residential and commercial development, including road building and golf course installations; agricultural activities, including orchardry, viticulture, row crops, and livestock grazing;

(2) Activities that appreciably degrade or destroy native grassland communities, including but not limited to livestock grazing, clearing, discing, introducing or encouraging the spread of nonnative species, and heavy recreational use.

Designation of critical habitat could affect the following agencies and/or actions: development on private lands requiring permits from Federal agencies, such as 404 permits from the U.S. Army Corps of Engineers, or permits from Housing and Urban Development, or authorization of Federal grants or loans. Such activities would be subject to the section 7 consultation process. Where federally listed wildlife species occur on private lands proposed for development, any habitat conservation plans submitted by the applicant to secure a permit to take according to section 10(a)(1)(B) of the Act would be subject to the section 7 consultation process. The Ohlone tiger beetle (Cicindela ohlone), a species that is proposed for listing under the Act, occurs in close proximity to P. hickmanii and C. robusta var. hartwegii at their western site on Salvation Army and Scotts Valley High School property.

If you have questions regarding whether specific activities will likely constitute adverse modification of critical habitat, contact the Field Supervisor, Ventura Fish and Wildlife Office (see ADDRESSES section). Requests for copies of the regulations on listed wildlife and inquiries about prohibitions and permits may be addressed to the U.S. Fish and Wildlife Service, Portland Regional Office, 911 NE 11th Avenue, Portland, Oregon 97232-4181 (503/231-6131, FAX 503/231-6243).

Currently, there are no HCPs that include Polygonum hickmanii and Chorizanthe robusta var. hartwegii as covered species. However, we believe that in most instances the benefits of excluding habitat conservation plans (HCPs) from critical habitat designations will outweigh the benefits of including them. In the event that future HCPs covering Polygonum hickmanii and Chorizanthe robusta var. hartwegii 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 these species. This will be accomplished 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 would provide an opportunity for more intensive data collection and analysis regarding the use of particular habitat areas by Polygonum hickmanii and Chorizanthe robusta var. hartwegii. The process would also enable 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 also provide technical assistance and work closely with applicants throughout the development of any future HCPs to identify lands essential for the long-term conservation of Polygonum hickmanii and Chorizanthe robusta var. hartwegii and appropriate management for those lands. The take minimization and mitigation measures provided under such HCPs would be expected to protect the essential habitat lands proposed as critical habitat in this rule.

Section 4(b)(2) of the Act requires us to designate critical habitat on the basis of the best scientific and commercial information 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. We will conduct an analysis of the economic impacts of designating these areas as critical habitat prior to a final determination. When completed, we will announce the availability of the draft economic analysis with a notice in the Federal Register, and we will open a comment period at that time.

We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule are hereby solicited. Comments particularly are sought concerning:

(1) The reasons why any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefit of designation will outweigh any threats to the species due to designation;

(2) Specific information on the amount and distribution of Polygonum hickmanii and Chorizanthe robusta var. hartwegii habitat, and what habitat is essential to the conservation of the species and why;

(3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat;

(4) Any economic or other impacts resulting from the proposed designation of critical habitat, in particular, any impacts on small entities or families;

(5) Economic and other values associated with designating critical habitat for Polygonum hickmanii and Chorizanthe robusta var. hartwegii such as those derived from non-consumptive uses (e.g., hiking, camping, bird-watching, enhanced watershed protection, improved air quality, increased soil retention, “existence values,” and reductions in administrative costs); and

(6) The methods we might use, under section 4(b)(2) of the Act, in determining if the benefits of excluding an area from critical habitat outweigh the benefits of specifying the area as critical habitat.

If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods. You may mail comments to the Assistant Field Supervisor, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, California 93003. You may also comment via the Internet to svpolyg&sf@r1.fws.gov. Please submit Internet comments as an ASCII file avoiding the use of special characters and any form of encryption. Please also include “Attn: 1018-AH82 and your name and return address in your Internet message.” If you do not receive a confirmation from the system that we have received your Internet message, contact us directly by calling our Ventura Fish and Wildlife Office at phone number 805-644-1766. Please note that the Internet address “svpolyg&sf@r1.fws.gov” will be closed out at the termination of the public comment period. Finally, you may hand-deliver comments to our Ventura office at 2493 Portola Road, Suite B, Ventura, California. Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.

In accordance with our policy published on July 1, 1994 (59 FR 34270), we will solicit the expert opinions of three appropriate and independent specialists regarding this proposed rule. The purpose of such review is to ensure listing decisions are based on scientifically sound data, assumptions, and analyses. We will send these peer reviewers copies of this proposed rule immediately following publication in the Federal Register. We will invite these peer reviewers to comment, during the public comment period, on the specific assumptions and conclusions regarding the proposed listing and designation of critical habitat.

We will consider all comments and information received during the 60-day comment period on this proposed rule during preparation of a final rulemaking. Accordingly, the final determination may differ from this proposal.

The Act provides for one or more public hearing on this proposal, if requested. Requests must be received within 45 days of the date of publication of the proposal in the Federal Register. Such requests must be made in writing and be addressed to the Field Supervisor (see ADDRESSES section). We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings in the Federal Register and local newspapers at least 15 days prior to the first hearing.

Executive Order 12866 requires each agency to write regulations and notices that are easy to understand. We invite your comments on how to make this proposed rule easier to understand, including answers to questions such as the following—(1) Are the requirements in the proposed rule clearly stated? (2) Does the proposed rule contain technical jargon that interferes with the clarity? (3) Does the format of the proposed rule (grouping and order of the sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the description of the notice in the “Supplementary Information” section of the preamble helpful in understanding the notice? What else could we do to make this proposed rule easier to understand?

Send a copy of any comments that concern how we could make this rule easier to understand to the office identified in the ADDRESSES section at the beginning of this document.

In accordance with Executive Order 12866, this document is a significant rule and was reviewed by the Office of Management and Budget (OMB). We are preparing a draft analysis of this proposed action, which will be available for public comment, to determine the economic consequences of designating the specific areas as critical habitat. The availability of the draft economic analysis will be announced in the Federal Register so that it is available for public review and comments.

(a) While we will prepare an economic analysis to assist us in considering whether areas should be excluded pursuant to section 4 of the Act, we do not believe this rule will have an annual economic effect of $100 million or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. Therefore, we do not believe a cost benefit and economic analysis pursuant to EO 12866 is required.

Under the Act, critical habitat may not be adversely modified by a Federal agency action; critical habitat does not impose any restrictions on non-Federal persons unless they are conducting activities funded or otherwise sponsored, authorized, 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 these species. Based upon our experience with these species and their needs, we conclude that any Federal action or authorized action that could potentially cause an adverse modification of the proposed critical habitat would currently be considered as “jeopardy” under the Act in areas occupied by the species. 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. The designation of areas as critical habitat where section 7 consultations would not have occurred but for the critical habitat designation may have impacts on what actions may or may not be conducted by Federal agencies or non-Federal persons who receive Federal authorization or funding that are not attributable to the species listing. We will evaluate any impact through our economic analysis (under section 4 of the Act; see Economic Analysis section of this rule). Non-Federal persons that do not have a Federal “sponsorship” of their actions are not restricted by the designation of critical habitat.

(b) This rule will not create inconsistencies with other agencies' actions. As discussed above, Federal agencies have been required to ensure that their actions not jeopardize the continued existence of Chorizanthe robusta var. hartwegii since its listing in 1994. The prohibition against adverse modification of critical habitat would not be expected to impose any additional restrictions to those that currently exist in the proposed critical habitat on currently occupied lands. We will evaluate any impact of designating areas where section 7 consultations would not have occurred but for the critical habitat designation through our economic analysis. Because of the potential for impacts on other Federal agency activities, we will continue to review this proposed action for any inconsistencies with other Federal agency actions.

(c) This proposed rule, if made final, 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 a listed species, and, as discussed above, we do not anticipate that the adverse modification prohibition, resulting from critical habitat designation, will have any incremental effects in areas of occupied habitat.

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

In the economic analysis (required under section 4 of the Act), we will determine whether designation of critical habitat will 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 for areas where section 7 consultations would have occurred as result of the species being listed under the Act. We will also evaluate whether designation includes any areas where section 7 consultations would occur only as result of the critical habitat designation, and in such cases determine if it will significantly affect a substantial number of small entities. As indicated on Table 1 (see Proposed Critical Habitat Designation section), we designated property owned by 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) Regulation of activities affecting waters of the United States by the Army Corps of Engineers under section 404 of the Clean Water Act;

(2) Development on private lands requiring permits from other Federal agencies such as Housing and Urban Development;

(3) Authorization of Federal grants or loans.

Potentially some of these activities sponsored by Federal agencies within the proposed 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, applicable restrictions of the Act remain in effect, and this rule will have no additional restrictions.

In the economic analysis, we will determine whether designation of critical habitat will 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. As discussed above, we anticipate that the designation of critical habitat will not have any additional effects on these activities in areas where section 7 consultations would occur regardless of the critical habitat designation. We will evaluate any impact of designating areas where section 7 consultations would not have occurred but for the critical habitat designation through our economic analysis.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 August 25, 2000 et seq.):

(a) We believe 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 programs having Federal funds, permits, or other authorized activities must ensure that their actions will not adversely affect 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 of occupied areas. In our economic analysis, we will evaluate any impact of designating areas where section 7 consultations would not have occurred but for the critical habitat designation.

(b) This rule will not produce a Federal mandate of $100 million or greater in any year; that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no obligations on State or local governments.

In accordance with Executive Order 12630, this 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 current restrictions on private property concerning these plant species. We do not anticipate that property values will be affected by the critical habitat designations. Landowners in areas that are included in the designated critical habitat will continue to have opportunity to utilize their property in ways consistent with State law and with the continued survival of the plant species.

In accordance with Executive Order 13132, the rule does not have significant Federalism effects. A Federalism assessment is not required. As discussed above, the designation of critical habitat in areas currently occupied by Polygonum hickmanii and Chorizanthe robusta var. hartwegii would have little incremental impact on State and local governments and their activities. The designations may have some benefit to these governments in that the areas essential to the conservation of these species are more clearly defined, and the primary constituent elements of the habitat necessary to the survival of the species are identified. While this definition and identification does not alter where and what federally sponsored activities may occur, it may assist these local governments in long range planning rather than waiting for case-by-case section 7 consultation to occur.

In accordance with Executive Order 12988, the Department of the Interior's Office of the Solicitor has determined that this rule does not unduly burden the judicial system and does meet the requirements of sections 3(a) and 3(b)(2) of the Order. We designate critical habitat in accordance with the provisions of the Endangered Species Act. The rule uses standard property descriptions and identifies the primary constituent elements within the designated areas to assist the public in understanding the habitat needs of Polygonum hickmanii and Chorizanthe robusta var. hartwegii.

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 an Environmental Assessment and/or an Environmental Impact Statement as defined by the National Environmental Policy Act of 1969 as amended need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act. A notice outlining our reason for this determination was published in the Federal Register on October 25, 1983 (48 FR 49244). This proposed rule does not constitute a major Federal action significantly affecting the quality of the human environment.

In accordance with 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 manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with federally recognized Tribes on a Government-to-Government basis. The proposed designation of critical habitat for Polygonum hickmanii and Chorizanthe robusta var. hartwegii does not contain any Tribal lands or lands that we have identified as impacting Tribal trust resources.

A complete list of all references cited herein, as well as others, is available upon request from the Ventura Fish and Wildlife Office (see ADDRESSES section).

The primary author of this proposed rule is Constance Rutherford, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, California 93003 (805/644-1766).

Santa Cruz County, California. From USGS 7.5′ quadrangle map Felton, California. Mt. Diablo Meridian, California. Because this area was part of the San Augustin Spanish Land Grant, it has not been surveyed according to the State Plan Coordinate System. The outer perimeter of this critical habitat unit is bounded by the following: beginning at a point west of Glenwood Drive and north of Casa Way at the southeastern corner of the Scotts Valley High School Preserve; proceeding west along the southern boundary of the Preserve until reaching the southwest corner of the Preserve; proceeding south to the southern boundary of the Salvation Army property; proceeding west along the southern boundary of the Salvation Army property until the point at which the grassland community gives way to the oak woodland community; then following the treeline in a generally northern direction, skirting around the west side of “cupcake hill” and “teacup hill”; proceeding to the pint at which treeline intersects with the ridgeline on the north side of “teacup hill”, proceeding north-northeasterly along the ridgeline, essentially paralleling the eastern boundary of the Salvation Army property; proceeding to the summit of the subsequent rock outcrop; proceeding east-southeasterly to Glenwood Drive, essentially following the treeline downslope; proceeding north along Glenwood Drive to Canham Road; proceeding 0.3 km (0.2 mi) east on Canham Road; then proceeding south for approx. 0.3 km (0.2 mi), then veering southeasterly and heading toward the summit near the northern terminus of Tabor Drive; proceeding south along the western edge of the existing homesites on the west side of Tabor Drive until reaching the northern boundary of Vine Hill School; proceeding west along the northern boundary of Vine Hill School until reaching the northeast corner of Siltanen Park; proceeding south for approx. 0.2 km (0.1 mi), approaching the 90 degree bend in Vine Hill Road; proceeding west for approx. 0.2 km (0.1 mi) to Glenwood Drive; and proceeding west across Glenwood Drive for approx. 0.08 km (0.05 mi) to the southwest corner of the Scotts Valley High School Preserve. Inside of this boundary, the following is excluded from critical habitat: approximately 16 ha (40 acres) where the Scotts Valley High School is situated, excepting the Scotts Valley High School Preserve; and the existing homesites between Glenwood Drive and the eastern boundary of the Scotts Valley High School Preserve.

Santa Cruz County, California. From USGS 7.5′ quadrangle map Laurel, California. Because this area was part of the San Augustin Spanish Land Grant, it has not been surveyed according to the State Plan Coordinate System. The outer perimeter of this critical habitat unit is bounded by the following: beginning at Sucinto Drive; proceeding directly west to the closest point on Carbonera Creek; proceeding north-northeasterly along Carbonera Creek to the point where Carbonera Creek crosses under Highway 17; proceeding east, then slightly east-southeasterly for approx. 0.6 km (0.4 mi) following the ridgeline until reaching the summit of a hill that is 310 m (1,020 ft) in elevation; proceeding southeasterly for approx. 0.08 km (0.05 mi) to another hill that is 310 m (1,020 ft) in elevation; proceeding south along the ridgeline for approx. 0.2 km (0.1 mi) to another hill that is 320 m (1,040 ft) in elevation; proceeding south-southeasterly along the ridgeline for approx. 0.5 km (0.3 mi) to a hill that is approx. 305 m (1,000 ft) in elevation; proceeding west-northwesterly for approx. 0.2 km (0.1 mi); proceeding generally west along the northern edge of the existing homesites along Navarra Drive, to Sucinto Drive.