As part of its 1999 legislative recommendations to Congress, the Commission sought guidance “* * * on whether candidate committees may accept contributions which are derived from advances from a financial institution, such as advances on a candidate's brokerage accounts, credit card, or home equity line of credit * * *” See 1999 Fed. Election Comm. Annual Rep. at 45 (2000). The Commission recognized that, since the FECA was first enacted, financial institutions have created new financing products to allow consumers more access to credit. The Commission recommended that the FECA be amended to allow candidates to access these new forms of credit to finance their campaigns for federal office, provided that the extension of credit be done in accordance with applicable law, under commercially reasonable terms and by persons who make these loans in the normal course of their business. Id .

In the Department of Transportation and Related Agencies Appropriations Act, 2001, Congress amended the FECA (2 U.S.C. 431(8)(B)) to exclude from the definition of contribution “a loan of money derived from an advance on a candidate's brokerage account, credit card, home equity line of credit, or other line of credit available to the candidate * * *” The amendment also included the three conditions contained in the Commission's legislative recommendation described above. The Department of Transportation and Related Agencies Appropriations Act, 2001, became Public Law 106-346 on October 23, 2000. 1

The following represents the Commission's proposal to implement the amendment to the FECA allowing candidates to receive advances from their brokerage accounts, credit cards, home equity lines of credit, or other lines of credit. In the narrative below, the Commission raises several issues associated with this NPRM. It welcomes comments on those issues as well as any additional comments that may be pertinent to this rulemaking but that have not been addressed in this NPRM.

In order to implement this amendment to the FECA, the Commission proposes to amend 11 CFR 100.7(b) by amending the introductory language of paragraph (b)(11) and adding a new 11 CFR 100.7(b)(22) to include brokerage loans, credit card advances, and other lines of credit made to candidates as among the items that are not considered contributions. The proposed rules would track the language of the amendment to the FECA including the conditions set forth, along with some additional clarifications and guidance regarding reporting requirements.

The Commission recognizes that commercial banks offer various lines of credit to their customers. Because the amendment to the FECA specifically establishes different criteria for lines of credit for candidates, the Commission proposes to amend 11 CFR 100.7(b)(11) to specifically exempt brokerage loans, credit card advances, and other lines of credit extended to candidates from the requirements of bank loans contained in section 100.7(b)(11). The proposed rules would amend paragraph (b)(11) by adding a sentence at the end of the introductory text that states that brokerage loans, credit card advances, and other lines of credit made to candidates under § 100.7(b)(22) would not be subject to § 100.7(b)(11). This exception would also include overdrafts made on personal checking or saving accounts of candidates because overdraft protection is a form of a line of credit. Thus, overdrafts made on a candidate's personal accounts would be subject to the requirements of proposed § 100.7(b)(22). It is important to note that the § 100.7(b)(11) would still apply to all loans and lines of credit made to a political committee and to conventional bank loans made to a candidate.

Proposed paragraph (b)(22) would contain the three statutory requirements for obtaining a loan derived from an advance on a candidate's brokerage account, credit card, home equity line of credit, or other line of credit, which are: that the loan would be made in accordance with applicable law; that the loan would be made under commercially reasonable terms; and that the persons making the loans make such loans in the normal course of their business. This new regulation would also address situations where there are endorsers, guarantors, or co-signers of these loans. New paragraph (b)(22) , like current paragraph (b)(11), would provide that an endorser, guarantor, or co-signer would be considered a contributor for the amount that the endorser, guarantor or co-signer is liable. This information would be disclosed on new schedule C-2 or C-P-2. See infra . The exception would be when the endorser, guarantor, or co-signer is the spouse of the candidate and the candidate's share of collateral used to obtain a secured loan equals or exceeds the amount of the loan. See 11 CFR 100.7(a)(1)(i)(D). Under proposed § 100.7(b)(22)(ii)(B), when a spouse is an endorser, guarantor, or co-signer of an unsecured loan, the spouse would not be considered a contributor if the candidate uses only one-half of the available credit in connection with the campaign. The Commission seeks comments on whether the regulations should allow the candidate to use the entire amount of the available credit in connection with a campaign in instances where the loan is in the ordinary course of business and the candidate is liable for the entire amount of the loan even though the spouse has endorsed, guaranteed, or co-signed for the loan.

Section 432(e)(2) of the FECA and 11 CFR 101.2 state that a candidate is an agent of the candidate's authorized committee when he or she obtains a loan in connection with a campaign. Because the amendment to FECA did not distinguish loans derived from an advance on the candidate's brokerage account, credit card, home equity line of credit, or other line of credit, from other types of loans, a candidate who obtains these loans in connection with the candidate's campaign is acting as an agent for his or her authorized committee under 2 U.S.C. 432(e) and 11 CFR 101.2.

Proposed section 100.7(b)(22) also contains a provision whereby a candidate would be able to obtain a loan derived from an advance on the candidate's brokerage account, credit card, home equity line of credit, or other line of credit for personal living expenses without the loan being reportable. Further, the loan would not violate 2 U.S.C. 439a or 11 CFR 113.2(d) prohibiting personal use of campaign funds. The loan, however, would have to be repaid from the candidate's personal funds.

It is important to note that this exception in paragraph (b)(22)(iii) is limited to loans used solely for personal living expenses. Thus, if all or part of the loan proceeds is used in connection with a campaign, the loan would need to be reported under 11 C.F.R. part 104. As an alternative to proposed paragraph (b)(22)(iii), the Commission seeks comments on whether to require the candidate's authorized committee to report loans used exclusively for the candidate's personal living expenses.

The Commission is seeking comment on how to make proposed § 100.7(b)(22)(iii)(A) more precise, since a candidate might borrow money for any number of personal, commercial or investment purposes that would fall outside the category of “personal living expenses,” yet such a loan would not be appropriate to characterize as “in connection with a campaign.” For example, if a candidate establishes a margin account at a brokerage firm to acquire additional securities, this would not appear to be a “personal living expense.”

In addition to seeking comment on whether the term “personal living expenses” is sufficiently descriptive and inclusive, the Commission is also seeking comment on the scope of the phrase “used for the candidate's campaign,” which is included in proposed § 100.7(b)(22)(ii)(A) and is derived from 2 U.S.C. 432(e)(2). Should this phrase encompass only loans the proceeds of which are lent or contributed to the candidate's campaign or are used to defray campaign expenses? Even with this narrowing construction, because money is fungible, what additional guidance should the Commission provide as to the reporting obligations of candidates who receive money from multiple sources (e.g., a loan and the liquidation of stock) and who contribute or lend money to their candidate committee?

The exception in new paragraph (b)(22)(iii) would not apply, however, if a third party repays, guarantees, endorses, or co-signs a loan for personal living expenses, in part or in whole. The third party would be deemed to make a contribution in the amount of the endorsement, guarantee, or liability and this amount would be subject to the limitations and prohibitions of the FECA. See 11 CFR 113.1(g)(6). Thus, if a third party repays, guarantees, endorses, or co-signs the loan, the authorized committee must report the loan and the repayment under 11 CFR 104.3, 104.8 and 104.9.

The Commission is considering making similar clarifications regarding the reporting of bank loans that are used solely for the candidate's personal living expenses. Please note this is not reflected in the proposed rules that follow. Under this clarification, bank loans would not be required to be reported if: (1) No part of the loan proceeds is used in connection with a campaign; (2) the loan is repaid wholly from the candidate's personal funds; (3) the loan does not pass through the authorized committee's account and the authorized committee does not endorse, guarantee, co-sign, or pay the loan; and (4) there is no endorsement, guarantee, co-signature, or payment by a third party. The Commission seeks comments on whether it is advisable to adopt such clarifications regarding bank loans used for a candidate's personal living expenses.

Under proposed § 100.7(b)(22)(iv), the candidate's authorized committee would have the option of repaying the loan directly to the lending institution or to the candidate. If the repayment is made to the candidate, however, the candidate must repay the lending institution within 30 days of receiving the committee's repayment. This is to ensure that the funds will not be available for the candidate's personal use. See 2 U.S.C. 439a and 11 CFR 113.2(d).

The proposed rules would also delete an obsolete reference in the introductory text of 11 CFR 100.7(b)(11) to the Federal Savings and Loan Insurance Corporation (FSLC). The FSLC has been dissolved and its deposit insurance responsibilities have been transferred to the Federal Deposit Insurance Corporation pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Public Law 101-73 (August 9, 1989).

Currently, 11 CFR 100.8(b)(12) exempts bank loans from the definition of “expenditure” and contains parallel language to that found in the exceptions to the definition of “contribution” in provision of § 100.7(b)(11). The Commission proposes to exempt loans derived from advances on a candidate's brokerage account, credit card, home equity line of credit, or other line of credit available to the candidate from the definition of “expenditure” by amending § 100.8(b)(12) and by adding a new § 100.8(b)(24). The proposed amendments to § 100.8(b)(12) are similar to the proposed amendments to § 100.7(b)(11). Proposed § 100.8(b)(24) adopts, by reference, the language of proposed § 100.7(b)(22).

As noted above, the Commission would require that loans derived from an advance on a candidate's brokerage account, credit card, home equity line of credit, or other line of credit in connection with the candidate's campaign would have to be reported by the candidate's principal campaign committee. The requirements would be set out in several sections in 11 CFR part 104. In § 104.3, the candidate's principal campaign committee would be required to report the loan of money as a receipt under proposed paragraph (a)(3)(vii)(D). It would also be required to report any repayment of the loan as a disbursement under proposed paragraph (b)(2)(iii)(D).

Under the proposed rules, § 104.3(b)(4)(iii) would be amended to specifically include persons who receive repayments from a reporting committee of loans derived from an advance on a candidate's brokerage account, credit card, or lines of credit, as among those who must be identified and itemized in the report. “Persons” in this proposed section would include candidates and lending institutions. The proposed amendment to § 104.3(b)(4)(iv) would make the same change with regard to persons who receive a repayment of a loan from a candidate.

Current 11 CFR 104.3(d) describes the requirements for reporting debts and obligations. The proposed rules would amend this paragraph to include loans derived from advances on a candidate's brokerage account, credit card, home equity line of credit and other lines of credit. First, the introductory language of paragraph (d) would be amended to make clear that these advances must be reported if they are used for the candidate's campaign even if the advances were received before the individual became a candidate for federal office. Paragraph (d)(1) would also be changed to recognize that lines of credit established by a candidate at any lending institution would be subject to the reporting requirements of new 11 CFR 104.3(d)(4) and not the reporting requirements of current § 104.3(d)(1). The amendment would clearly state that only lines of credit obtained by political committees would be subject to the bank loan regulations.

The proposed rules would add a new § 104.3(d)(4) to describe the information that must be disclosed in the report. The proposed paragraph would require committees to disclose loans derived from an advance from a candidate's brokerage account, credit card, or line of credit on new schedules C-2 and C-P-2. The Commission will design these new schedules to reflect the final rules and will have them available by the effective date of the final rules.

Under proposed § 104.3(d)(4), committees would be required to disclose the following information: Date, amount and interest rate of the loan; name and address of the lending institution; type and value of collateral or security; and each draw or advance on the credit card or line of credit. The Commission seeks comment on whether additional information is necessary.

Current 11 CFR 104.8 requires that certain receipts, including loans, be disclosed on Schedule A. The proposed rules would add new paragraph (g) to § 104.8 to describe how receipt of a loan derived from an advance from a candidate's brokerage account, credit card, or line of credit would be reported on Schedule A. When the candidate's committee receives the funds directly from the lending institution, it would be reported as an itemized entry on Schedule A. If the candidate receives the funds from the lending institution and then makes a loan or a gift to the committee, then the transfer of funds from the lending institution to the candidate would be reported as a memo entry on Schedule A and the loan or gift of money from the candidate to the committee would be reported as an itemized entry on Schedule A. A cross reference to § 100.7(b)(22)(iii) would also be included in new § 104.8(g) regarding the reporting of loans obtained solely for the candidate's personal living expenses.

The Commission is also considering expanding the scope of proposed § 104.8(g) to include similar changes to the way in which bank loans obtained by candidates directly must be reported on Schedule A as memo entries if they are used in connection with a campaign. This would provide further guidance to authorized committees on the proper reporting mechanism for bank loans obtained by candidates where the funds are turned over to the committee. The Commission seeks comments on whether it is advisable to expand the scope of proposed § 104.8(g) to address bank loans received initially by the candidate.

Current 11 CFR 104.9 requires that certain disbursements, including loan repayments, be disclosed on Schedule B. New paragraph (f) would be added to § 104.9 to explain how repayments of a loan derived from an advance from a candidate's brokerage account, credit card, or line of credit would be reported on Schedule B. If the candidate's committee directly repays the lending institution, then the repayment would be an itemized entry on Schedule B. If the committee repays the candidate who, in turn, repays the lending institution, then the repayment to the candidate would be an itemized entry and the repayment to the lending institution would be a memo entry. The Commission also seeks comments on whether it is advisable to expand the scope of proposed § 104.9(f) so that the repayment of bank loans would be reported in the same manner on Schedule B.

Proposed 11 CFR 100.7(b)(22)(vi), 104.8(g), and 104.9(f) would permit the proceeds of the loan to be paid directly to the candidate's authorized committee and would permit the authorized committee to repay the loan directly to the lending institution. As an alternative to the approach set out in the proposed rules, the Commission is considering whether to require that the payment and repayment of the loan pass through the candidate's personal account, in order to distinguish bank loans made directly to an authorized committee from loans derived from a candidate's brokerage account, credit card, home equity line of credit, or other line of credit. In other words, the lending institution must disburse the loan to the candidate who would then loan or contribute the money to the authorized committee. If the candidate loans the money to the authorized committee, the committee would be required to repay the loan to the candidate, not to the lending institution, and the candidate would then repay the lending institution.

As an alternative to the foregoing reporting approach in the proposed amendments to 11 CFR 104.3, 104.8, and 104.9, the Commission seeks comment on a less extensive reporting system. A committee only would be required to report certain limited information about the sources of bank loans and loans derived from advances on brokerage accounts, credit cards, home equity lines of credit, or other lines of credit when the candidate has loaned or contributed outright such funds to the committee. This information would include the name of the institution and any applicable interest rate and the due date. Further, in the situation where the candidate has lent the funds to the committee, the committee only would be required to report repayments to the candidate, not the repayments by the candidate to the lending institution. This reporting approach would be applied to loans from banks as well as the loans derived from other sources covered by the recent statutory amendment. It would rely on the complaint and audit processes to monitor situations where the committee makes loan repayments but the candidate does not use such repayments to repay the lending institution or relies on third parties to make the repayments to the lending institution. It would involve repeal of 11 CFR 104.3(d)(1)(iii)-(v), (d)(2)-(3), and the elimination of lines A through F of schedules C-1 and C-P-1.

Paragraph (h) of section 104.18 sets forth the requirements for the filing of special schedules and forms that must accompany the electronic filing of reports. These special schedules and forms generally require original signatures on them. The Commission has not yet designed schedules C-2 and C-P-2 described in proposed 11 CFR 104.3(d)(4). However, the Commission intends to require signatures on these new schedules and therefore, § 104.18(h) would be amended to include schedules C-2 and C-P-2. The proposed change is based on the proposed amended language for § 104.18(h) in the notice of proposed rulemaking entitled “Independent Expenditure Reporting.” See 66 FR (2001). The Commission seeks comments on the advantages and disadvantages of requiring the lenders' signatures on these new schedules and whether the Commission should require these signatures.

Under the proposed rules, the third party payments provisions of the definition of “personal use” in 11 CFR 113.1(g)(6) would be amended to include a repayment, endorsement, guarantee, or co-signature of a loan derived from a candidate's brokerage account, credit card, home equity line of credit, or other line of credit and used for the candidate's personal living expenses within the meaning of “payment”. A cross reference to § 100.7(b)(22) would be included in this paragraph.

Unlike the regulations for bank loans, the proposed rules would not require principal campaign committees to submit to the Commission loan agreements or similar documents that are connected with a loan derived from an advance from a candidate's brokerage account, credit card, or line of credit. The committees, however, would still be required, under current 11 CFR 104.14, to maintain records connected with these types of loans for three years. For example, committees would be required to maintain any agreements or documents that are connected with these loans, including but not limited to: the Federal Reserve Board's Form T-4 that is required to obtain a brokerage loan, any loan agreements, and any receipts or copies of a credit card company's check that are evidence of an advance from a candidate's credit card. The Commission seeks comments on whether it should require the candidate's principal campaign committee to submit loan agreements and similar documents on loans derived from an advance from a candidate's brokerage account, credit card, or line of credit when the committee files schedule C-2 or C-P-2.

A loan derived from a brokerage account is obtained by opening a non-purpose credit account. Margin accounts and non-purpose credit accounts are subject to the Federal Reserve Board's Regulation T, 12 CFR part 220. Under 12 CFR 220.6(e), non-purpose credit accounts are not subject to Regulation T's margin requirements but are subject to the rules of the self regulating organizations (SRO) that regulate the exchanges. Recognizing that non-purpose credit accounts contain similar inherent risks to margin accounts, the two largest SRO, the New York Stock Exchange (NYSE) and the National Association of Securities Dealers (NASD), established minimum maintenance margins for non-purpose credit accounts that are applicable to the members in their exchanges. 2 Generally, the minimum maintenance margin is 25 percent. 3 That is, a customer must maintain securities valued at 125 percent of the outstanding non-purpose credit. Individual brokerage firms may require higher maintenance margins.

Brokerage firms are supposed to issue a margin call if the equity in a customer's account falls below the maintenance margin. Both the NYSE and the NASD, however, allow firms not to issue a margin call if the firm is willing to take a charge against its net capital, pursuant to SEC Rule 15c3-1, for the amount the customer would have been required to deposit to meet the margin call. See NYSE Rule 431(e)(7) and NASD Rule 2520(e)(7).

Although this practice may be considered to be in the ordinary course of business, nevertheless, the candidate would receive something of value—not having to deposit additional cash or securities into an account—for free. Essentially, the brokerage firm is providing additional collateral to the candidate without being compensated. Even though the brokerage firm may provide the same service to other customers who are not seeking federal office, the Commission has determined that services offered free of charge by corporations in the ordinary course of business for promotional or good will purposes (if these services might otherwise have required consideration) are prohibited by 2 U.S.C. 441b. See Advisory Opinions 1996-2, 1988-25, 1988-12. Moreover, by not making the margin call, the candidate has increased his or her risk exposure and may be less likely to be able to repay the loan. The Commission seeks comments on whether a brokerage firm that takes a charge against net capital may, under certain circumstances, be providing something of value to candidates which is prohibited by 2 U.S.C. 441b.

Loans derived from a candidate's brokerage account, credit card account, home equity line of credit, or other lines of credit, present a few repayment issues. Under 2 U.S.C. 432(e)(2), a candidate is considered an agent of the authorized committee when obtaining a loan for use in connection with the candidate's campaign for federal office. As such, the authorized committee has a continuing obligation to report the loan until it is repaid. Because of the nature of brokerage loans, the Commission is unsure as when to consider a loan repaid. In practice, customers are not required to make payments on the loan unless the value of the non-purpose credit account falls below the maintenance margin. If the securities in the non-purpose credit account continually increase in value, then the customer does not have to make any payments. Thus, a candidate could maintain a loan balance well after the candidate is no longer seeking federal office.

Normally, a committee reports the disposition of its loans before it can terminate. See infra. For purposes of determining the disposition of these loans, the Commission seeks comments on when a brokerage loan should be considered paid in full. Should the candidate be required to liquidate an amount of securities, or make a deposit, or a combination of both, equal to the amount of the outstanding brokerage loan plus any interest that may have accrued?

The other issue that needs to be addressed in the context of repayment of loans derived from a candidate's brokerage account, credit card account, home equity line of credit, or other lines of credit, is termination of political committees. Under 11 CFR 104.11, a loan remains an outstanding debt that the candidate's authorized committee must continue to report until it is extinguished. Additionally, these loans, similar to bank loans, would not be subject to debt settlement under 11 CFR 116.4. Because a political committee cannot terminate unless all outstanding debts are satisfied, the candidate's authorized committee cannot terminate, even if the candidate is no longer seeking federal office, until the loan is paid in full. See 11 CFR 102.3. The exception is when the Commission administratively terminates a political committee under 11 CFR 102.4. Under these circumstances, a committee would be terminated even if it has outstanding debts provided that the criteria for administrative termination are met.

One option under consideration is requiring committees to report until the original amount of the loan plus any interest or penalty are repaid. Another option is to allow the committee to terminate if it has extinguished its debt to the candidate even if the candidate has not repaid the entire loan to the lending institution. Alternatively, committees would be allowed to terminate if it can demonstrate unique circumstances that will ensure that the loan would be repaid, under commercially reasonable terms, from the candidate's personal funds. An example of unique circumstances is a brokerage loan that is subject to fixed due date and a repayment schedule.

The Commission seeks comments on which of these three approaches best advance the purpose of FECA. The Commission also welcomes suggestions on alternative methods of reporting outstanding debts and termination of a committee where either the candidate or the candidate's committee has an outstanding loan that is derived from the candidate's brokerage account, credit card, home equity line of credit, or other lines of credit.

The attached proposed rules will not, if promulgated, have a significant economic impact on a substantial number of small entities. The proposed rules would implement the changes to the FECA expressly permitting candidates to obtain loans from a wider range of financial institutions. This would increase the flexibility that candidates would have to seek financing for their campaigns. The requirement to report loans derived from an advance from a candidate's brokerage account, credit card, or line of credit would only impact the candidates and their campaign committees. It would not have a significant economic impact on these committees because they are already required to report all loans that are made in connection with a federal campaign. In fact, the reporting requirements in the proposed rules are minimal. The Commission does not anticipate that these changes will cause committees to devote much additional time or resources to comply with the proposed reporting requirements. Therefore, the attached proposed rules, if promulgated, will not have a significant economic impact on a substantial number of small entities.

For the reasons set out in the preamble, it is proposed to amend Subchapter A, Chapter I of title 11 of the Code of Federal Regulations 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-381-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-381-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The FAA has received reports indicating that cracks have been discovered in station 900 frame and its adjacent structure, near the attach bolt of the main landing gear (MLG) uplock mechanism. These cracks were caused by flexure of the wing, imposing bending loads on the frame, in addition to the normal tension loads. This cracking condition, if not corrected, could result in compromised structural integrity of the MLG.

The FAA has reviewed and approved Boeing Service Bulletin 2411, Revision 2, dated April 29, 1968, which describes procedures for, among other things, the installation of a new support structure for the trailing edge beam and main landing gear uplock mechanism. 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 this proposed AD would mandate the preventative modification described in Part III—Modification Data of the Accomplishment Instructions of Boeing Service Bulletin 2411, Revision 2, dated April 29, 1968, prior to the accumulation of 20,000 total flight cycles, or within 24 months from the effective date of the AD, whichever occurs later. (Incorporation of the specified preventative modification is recommended in the service bulletin “at the next major overhaul,” except for repair.)

The proposed AD also differs from the service bulletin in that it would not require the repetitive inspections to detect cracks in the support structure for the trailing edge beam and main landing gear uplock. The decision to mandate the preventative modification of the main landing gear uplock mechanism is based on the FAA's determination that long-term continued operational safety will be better assured by design changes to remove the source of the problem, rather than by repetitive inspections. Long-term inspections may not provide the degree of safety assurance necessary for the transport airplane fleet. This, coupled with a better understanding of the human factors associated with numerous continual inspections, has led the FAA to consider placing less emphasis on inspections and more emphasis on design improvements. The proposed preventative modification requirement is consistent with these findings.

There are approximately 84 airplanes of the affected design in the worldwide fleet. The FAA estimates that 10 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 80 work hours per airplane to accomplish the proposed modification, 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 $198,000, or $19,800 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 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-335-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 Number 2000-NM-335-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The Direction Ge ne rale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified the FAA that an unsafe condition may exist on certain Dassault Model Mystere-Falcon 50 series airplanes. The DGAC advises that inspections have shown a defect of the seals on double-skin feeder tanks on frames 28, 29, and 31. This defect was discovered during a quality inspection on the aircraft production line and is apparently due to a problem in quality control. This condition, if not corrected, could result in fuel leaks from the feeder tanks, which could result in fuel vapors in the cabin, which could come into contact with ignition sources.

Temporary Revision No. 19 to the Dassault Falcon 50 Maintenance Manual, dated April 2000, describes procedures for the repetitive leak tests of the feeder tanks and for renewing the seal if a leak is detected.

Dassault has issued Service Bulletin F50-328, dated May 31, 2000, which describes procedures for reworking the seals in the lower sections of the feeder tanks at frames 28 and 31. Reworking these seals would eliminate the repetitive leak testing of the feeder tanks.

Accomplishment of the actions specified in the service information is intended to adequately address the identified unsafe condition. The DGAC classified the service bulletin as mandatory and issued French airworthiness directive 2000-163-030(B), dated April 19, 2000, in order to assure the continued airworthiness of these airplanes in France.

This airplane model is manufactured in France and is type certificated for operation in the United States under the provisions of § 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.

Since 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 require accomplishment of the actions specified in the maintenance manual and the service bulletin described previously.

The FAA estimates that there are 27 airplanes of U.S. registry that would be affected by this proposed AD. The FAA estimates that it would take approximately 8 work hours per airplane to accomplish the proposed leak tests, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the proposed leak tests on U.S. operators is estimated to be $12,960, or $480 per airplane, per test.

The FAA estimates that it would take approximately 50 work hours per airplane to accomplish the proposed reworking of the seals in the feeder tanks, and that the average labor rate is $60 per work hour. The required parts would be provided at no charge to the operator. Based on these figures, the cost impact of the reworking of the seals on U.S. operators is estimated to be $81,000, or $3,000 per airplane.

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-332-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-332-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The FAA has received a report from the manufacturer indicating that specific production lots of Kaynar self-locking nuts did not meet the minimum locking torque level required by their specifications. These self-locking nuts are installed on the retaining bolt for the primary support pin of the left and right main landing gear (MLG) support beams. Because the nuts do not meet minimum locking torque levels, it is possible they could back off the retaining bolt, which could lead to the retaining bolt and primary support pin departing the airplane. This condition, if not corrected, could result in collapse of the MLG.

The FAA has reviewed and approved Boeing Alert Service Bulletin 737-57A1260, dated June 15, 2000; and Revision 1, dated October 12, 2000; which describe procedures for removing the retaining bolt and self-locking nut from the primary support pin of the left and right MLG support beams and replacing them with a new bolt, castellated nut, washer, and cotter pin. The alert service bulletin covers the 737-200, -200C, -300, and -500 airplanes. The 737-400 has a different design which is not interchangable and is not included in the alert service bulletin. Accomplishment of the actions specified in the alert 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 alert service bulletin described previously.

There are approximately 2,300 airplanes of the affected design in the worldwide fleet. The FAA estimates that 980 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 replacement, and that the average labor rate is $60 per work hour. Required parts would cost approximately $39 per airplane. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $391,020, or $399 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 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-387-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-387-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

As a result of a 747-100 accident investigation, the FAA conducted an inspection of the fuel quantity indicator system (FQIS) wiring in a 777-300 center fuel tank (CFT). This inspection identified several potential FQIS wire chafing concerns. Boeing 777-200 airplanes with increased capacity CFTs share the same CFT design and potential wire chafing concerns as the 777-300 airplanes. FQIS wiring on 777-200 and -300 airplanes, which is routed through penetrations in the CFT spanwise beams and side body ribs, has inadequate clearance, excessive slack, and is unprotected from chafing and damage. Also, FQIS wiring secured by P-clamps mounted on flat bracket plates is exposed to chafing on the bracket plate edges and airplane structure. Fuel sloshing, vibration, and normal maintenance activity within the fuel tanks over the lifetime of the airplane increases the risk of chafing and damage to wire that is inadequately secured and protected. Chafed FQIS wiring, with bare conductor exposed, and in close proximity to structures or other electrically conductive return paths, is a potential ignition source when combined with certain FQIS wiring or component failures. This condition, if not corrected, could result in electrical arcing and explosion in the fuel tank.

The FAA has reviewed and approved Boeing Special Attention Service Bulletin 777-28-0012, dated September 2, 1999 (for Model 777-200 series airplanes), which describes procedures for replacement, with new brackets and seals, of the wiring support brackets for the FQIS wire bundles at the structural penetration points where the wire bundles enter the CFT.

The FAA has reviewed and approved Boeing Special Attention Service Bulletin 777-28-0016, dated April 27, 2000 (for Model 777-200 and -300 series airplanes), which describes procedures for modification of the FQIS wiring in the CFT by increasing the separation between wire and surrounding structures and systems, and by controlling the wire slack at clamping locations. The modification involves installing spacers on the FQIS wiring support brackets and standoffs, installing a clamp next to the grommet at each tank unit, and replacing the clamp filler O-rings.

The FAA has also reviewed and approved Boeing Special Attention Service Bulletin 777-28-0021, dated April 27, 2000 (also for Model 777-200 and -300 series airplanes), which describes procedures for modification of the FQIS wiring in the main fuel tanks, also by increasing the separation between wire and surrounding structures and systems and by controlling the wire slack at clamping locations. The modification involves installing spacers on the FQIS wiring support brackets and standoffs, installing a clamp next to the grommet at each tank unit, and replacing the clamp filler O-rings.

Accomplishment of the actions specified in each of the above-referenced 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 service bulletins described previously, except as discussed below. The proposed AD also would require that operators report results of inspection findings to the manufacturer.

Operators should note that, although the service bulletins recommend accomplishing the modifications “at a convenient maintenance opportunity when manpower and facilities are available,” the FAA has determined that such an imprecise compliance time would not address the identified unsafe condition 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 modifications. In light of all of these factors, the FAA finds a compliance time of 24 months for completing the required actions to be warranted, in that it represents an appropriate interval of time allowable for affected airplanes to continue to operate without compromising safety.

Operators should also note that, although the service bulletins do not give specific instructions for the disposition of any damaged wire encountered during the modifications, this AD would require that any damaged wire (i.e., chafed wire, or wire with exposed conductor, broken insulation, conductor, or shielding) must be replaced per the Boeing Standard Wiring Practices Manual D6-54446, Chapter 20, Section 10, Subject 11 (20-10-11), dated August 1, 1996, and any damage reported to the Boeing Company.

There are approximately 266 airplanes of the affected design in the worldwide fleet. The FAA estimates that 75 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately the number of work hours per airplane displayed in the table below to accomplish the proposed modifications, and that the average labor rate is $60 per work hour. Required parts costs are also listed in the table below:

Service Bulletins 777-28-0012 and 777-28-0016 both address CFT wiring improvements and require CFT entry. Operators should note that concurrent incorporation of these two service bulletins would minimize tank entries and would be a cost saving (33 work hours per airplane) to the operators because they would need to de-fuel, access, and close access to the CFT only once.

The cost impact figures discussed in the above table 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. The figures in the table above do not include incidental costs, such as 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:

Each year FDA receives reports of consumers who experience adverse reactions following exposure to allergenic substances in foods. Food allergies are abnormal responses of the immune system, especially the production of allergen-specific IgE antibodies, to naturally occurring proteins in certain foods that most individuals can eat safely. Most consumers are aware of their specific sensitivities and rely on the food label to avoid foods that might result in an allergenic reaction. However, adverse reactions often occur when an allergen-sensitive consumer consumes an allergenic substance that has not been declared on the food label.

Section 403 of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 343) requires food labels to bear a complete listing of all the ingredients in a food. This permits consumers to obtain accurate information about the foods that they eat by reading the ingredient list. However, the act and FDA's regulations provide two narrow exemptions from the ingredient labeling requirement. First, section 403(i) of the act provides that flavorings, spices, and colors may be declared collectively without naming each one. In some instances, these collective ingredients contain subingredients that are allergens. (FDA is exploring whether allergenic ingredients in spices, flavorings, or colors should be declared, section 403(i) of the act notwithstanding.) Second, FDA regulations exempt incidental additives (e.g., processing aids) from ingredient declaration if they are present in a food at insignificant levels and do not have a technical or functional effect in the finished product (§ 101.100(a)(3) (21 CFR 101.100(a)(3))). Thus, in some cases food labels may not provide consumers with food allergies with information about all the ingredients that are in the foods that they eat.

In addition to exemptions for ingredient labeling, there are other ways in which consumers may inadvertently come in contact with allergenic substances. For instance, some consumers may be unaware of the allergenic source of ingredients declared by their common or usual names in the ingredient statement. For example, consumers may not understand that the source of the ingredients “whey” and “casein” is “milk,” which is a common food allergen. Another area of concern is the potential, inadvertent introduction of an allergenic ingredient to a food (e.g., cross-contact during manufacturing where traces of peanuts end up in a product that does not normally contain peanuts because the product is manufactured on the same production line as a product containing peanuts).

The undeclared presence of allergens in foods is a serious public health issue because the ingestion of food allergens is potentially life-threatening to sensitive individuals. Therefore, as part of its public health mission to keep food safe, FDA has been focusing increased attention and activity on issues relating to food allergens, especially the proper labeling of products containing such allergens and the control of food allergens in products not intended to contain such allergens.

Currently, the only successful method to manage food allergy is avoidance of foods containing the allergen. FDA’s allergen awareness efforts are currently focused on the eight foods that are most frequently implicated in serious allergic responses: (1) Peanuts; (2) soybeans; (3) milk; (4) eggs; (5) fish; (6) crustacea (e.g., lobster, crab, shrimp); (7) tree nuts (e.g., almonds, chestnuts, macadamia nuts, pecans, walnuts, hazelnuts or filberts, cashews, brazil nuts, pistachios, pine nuts); and (8) wheat.

There has been growing activity surrounding food allergens. The number of allergen-related food recalls increased steadily since 1990. Further, FDA has received correspondence from consumers, as well as from members of Congress (on behalf of their constituents) expressing concern about undeclared allergens in foods. FDA has also received a citizen petition requesting agency action to address food allergens (Docket No. 99P-2148). Similarly, in May of 2000, the attorneys general of nine States expressed their concern about food allergens and submitted a petition asking FDA to amend its regulations on food labeling and manufacturing practices (Docket No. 00P-1322).

In response to food allergy concerns, the Food Allergy Issues Alliance (a private group comprised of industry and trade group representatives and a consumer group, as well as a scientific advisor representing academia) recently submitted (May 2001) a consensus document on guidelines for food allergen labeling (Ref. 1). The Food Allergy Issues Alliance asserted that the guidelines would address food allergen issues their member companies would be implementing soon without requiring FDA to amend or issue regulations.

FDA replied to their submission (Refs. 2, 3, and 4) stating that the agency considered the guidelines a significant step forward in addressing the prevalence and identification of the eight most common food allergens in plain, simple language. The agency also indicated it was pleased that the document recognized the public health need to disclose food allergens. FDA finally noted that the Food Allergy Issues Alliance guidelines laid the groundwork for addressing additional food allergen issues in the future. The agency finds the guidelines consistent with both our positions on food allergens (as articulated in the past) and with the purpose behind the public meeting, as described later in this document, and therefore is an appropriate starting point for discussions at the public meeting.

FDA’s concern about food allergens has prompted several agency actions, most notably a notice to manufacturers on the label declaration of allergens (1996), an FDA/State partnership to increase industry’s understanding of allergens and to identify effective manufacturing controls (1998), and issuance of food allergen guidance documents (2001). Information on these initiatives is available at the FDA Web site on allergens at http://www.cfsan.fda.gov/ÿ7Edms/wh-alrgy.html.

FDA is announcing a public meeting on August 13, 2001, to explore certain allergen-related labeling issues in greater detail. The meeting is intended to aid the agency in determining what additional actions may be warranted to further assist consumers with food allergies in identifying products containing food allergens and to assist manufacturers in producing foods that are safe for consumers with food allergies.

The agency is requesting written and oral comments in three topic areas relating to food allergens within the context outlined above: (1) Source or plain English labeling; (2) advisory labeling (e.g., “May contain [name of food allergen]”); and (3) labeling of ingredients exempted from declaration (common or usual names of flavorings, spices, and colors; incidental additives). Recommendations from the petition submitted by the attorneys general of nine States (Docket No. 00P-1322) and the allergen-labeling guidelines from the Food Allergy Issues Alliance (Ref. 1) are incorporated into the discussion of the three topic areas, as appropriate.

FDA recognizes that many of the common or usual names for ingredients listed in the ingredient statement are not understood by consumers to be derived from food allergens (e.g., “caseinate” or “whey” derived from “milk” and “albumin” derived from “egg”). FDA is considering whether additional labeling of food products is necessary in some instances to ensure that allergenic consumers are informed about the presence of food allergens.

FDA is considering how best to make source or plain English labeling more widely available to consumers so that the labels will be more understandable. To assist the agency in its deliberations, FDA is asking several questions relating to source labeling:

1. What plain English terms would be understandable for the eight most common food allergens?

2. What source or plain English labeling format or formats would be most informative to consumers? Are the formats from the Food Allergy Issues Alliance appropriate and sufficient? Are the recommendations in the petition from the attorneys general of nine States warranted and beneficial? Are multiple formats confusing to consumers, and if so, is there a single format that would be preferable? If so, why?

3. Should source or plain English labeling be voluntary or mandatory for the eight most common food allergens?

Advisory labeling includes statements such as “may contain peanuts” or “made on shared equipment” on food packaging labels. FDA’s current position is that advisory labeling should not be used in lieu of adherence to good manufacturing practices (GMPs) because adhering to GMPs is essential for effective reduction of adverse reactions. Food that contains an allergen due to cross-contact or other contamination may be considered adulterated under section 402(a)(4) of the act (21 U.S.C. 342(a)(4)) because it has been prepared, packed, or held under insanitary conditions that may render the food injurious to health. Thus, FDA believes advisory labeling should not be the norm, and manufacturers should strive to eliminate the presence of allergenic materials that are not intentionally added to a specific food product.

However, FDA recognizes that advisory labeling is an attempt by manufacturers to inform consumers of the possibility that cross-contact may have occurred such that the product contains an allergenic substance. FDA is considering whether, and if so, under what circumstances advisory labeling should be permitted when appropriate manufacturing controls are not sufficient to guarantee the absence of allergenic substances in a particular food product. If permitted, clear criteria will be needed to guide the use of such statements. Additionally, FDA is assessing whether advisory labeling is useful to consumers, how consumers interpret advisory labeling statements, and what wording would be most understandable. To help the agency better understand if there is a need for advisory labeling, when it would be appropriate, how such statements would be used by consumers, and what wording would be most helpful to the consumer, the agency asks the following questions:

1. Under what circumstances, if any, should advisory labeling statements (e.g., “May contain [name of allergen]”) be permitted, and what impact would those circumstances have on manufacturers and on consumers? Should the recommendations in the petition from the attorneys general of nine States be adopted? Do the criteria from the Food Allergy Issues Alliance form a reasonable basis for determining when a manufacturer may use advisory labeling on a particular product or should other criteria be used? Why?

2. Are there better alternatives for advisory labeling than the type of wording that currently exists (e.g., “May contain [name of specific allergen],” “Made on shared equipment,” “Manufactured in a facility that also processes [name of specific allergen]”)? Do such statements adequately inform consumers of possible cross-contact with allergenic materials? How do consumers interpret the wording of such labeling? Should advisory labeling statements be prescriptive (i.e., one or more specific statements) or flexible?

3. Where should advisory labeling statements be located on the food label? How prominent should advisory labeling statements be on the label? Should the location and prominence of advisory labeling statements be prescribed?

As previously noted, the collective naming of flavors, spices, and certain colors is one of the exemptions to the requirement for the complete labeling of ingredients (section 403(i) of the act). This exemption permits these ingredients to be listed collectively in the ingredient statement (e.g., “Ingredients: * * *flavorings * * *”) without naming each by its common or usual name. Food labels with collectively named flavorings, spices, and colors may not adequately inform individuals who wish to avoid allergenic substances, particularly when the allergenic substance is not specifically identified.

FDA believes that the declaration of allergenic ingredients in individual flavorings, spices, and colors is necessary for consumers to adequately protect themselves from exposure to food allergens. On a case-by-case basis, FDA has used notice-and-comment rulemaking to require the declaration of individual allergenic flavorings, spices, and colors. This is a labor-intensive and time-consuming process for the agency.

FDA is considering whether continuing to address allergenic flavorings, spices, and colors on a case-by-case basis is the best approach available to the agency. The petition from the attorneys general of nine States (Docket No. 00P-1322) recommended amending the regulations for flavorings derived from one of the eight most common allergenic substances to require the declaration of the presence of the allergen (e.g., peanut flavoring). The allergen-labeling guidelines from the Food Allergy Issues Alliance (Ref. 1) advocated additional voluntary disclosure of food allergens that are intentionally part of foods, including substances exempted from labeling by regulations (e.g., flavorings). Questions for the public meeting relate to the alternatives available to the agency:

1. Should the agency continue to address the labeling of individual allergenic flavorings, spices, and colors on a case-by-case basis, or should there be a generally applicable policy?

2. Should the information on allergenic components of flavorings, spices, and colors be included in the ingredient list? Is there a better location or format for this information? Explain.

3. For individual flavorings, spices, or colors that contain one of the eight most common allergens, should listing the common or usual name of the individual flavoring, spice, or color on the product labeling be voluntary or mandatory?

Incidental additives that are present in a food at insignificant levels and do not have any technical or functional effect in that food have been exempted by regulation from labeling on an ingredient statement (§ 101.100(a)(3)). Incidental additives include substances that have no technical or functional effect in the finished product, processing aids, and substances that may migrate to the food from equipment or packaging. FDA has stated that because very small amounts of some allergenic substances can cause serious allergic responses, allergens that cause serious allergic reactions cannot be considered to be present at an “insignificant” level in the food. The agency has stated that all allergenic substances introduced as ingredients or as the result of manufacturing processes do not qualify as incidental additives and must be declared in the ingredient statement on the label of a food product (Ref. 5).

With regard to incidental additives, FDA understands that the main difficulty is that manufacturers may be unaware that a particular minor ingredient or processing byproduct may be allergenic and therefore must be declared on product labels. The petition from the attorneys general of nine States (Docket No. 00P-1322) recommended amending the regulations for ingredients that are derived from one of the eight most common allergenic substances to specify that such ingredients may not be considered incidental additives under § 101.100(a)(3) and must be declared on the product label. The allergen-labeling guidelines from the Food Allergy Issues Alliance (Ref. 1) suggested that food companies follow FDA’s current guidance regarding the labeling of “incidental ingredients” that are or that contain one of the eight most common food allergens by declaring the allergen in the ingredient list of the food. The questions for the public meeting relate to gathering information and exploring educational alternatives to increase manufacturer understanding:

1. What, if any, minor ingredients would manufacturers be unlikely to recognize as containing food allergens and therefore not include on the label, and what kinds of manufacturing processes would manufacturers be unlikely to recognize as inadvertently introducing food allergens?

2. When products that contain food allergens will be further processed or repacked, is food allergen labeling sufficient on such intermediate products or is it necessary to have clearer labeling on intermediate products to ensure that food allergens are appropriately declared on the retail packaging of the final product?

3. Should the agency codify its policy to specifically state that incidental additives that are food allergens are not exempt from labeling and must be declared in the ingredient statement on the label?

FDA’s public meeting, scheduled for August 13, 2001, is intended to help the agency determine what additional actions may be warranted to provide consumers with adequate food allergen information on product labels. FDA recognizes that there are additional food allergen areas that may need to be addressed at future meetings or through agency actions, e.g., food handling practices and providing food allergen information in restaurant settings. However, at this time, the agency is focusing on issues relating to labeling and manufacturing of the eight most common food allergens; therefore, the public meeting will be restricted to discussion of the topic areas described above.

If you would like to attend the meeting, you must preregister in writing by close of business on August 6, 2001, either electronically or by mail (information above). You must provide your name, title, business affiliation (if applicable), address, telephone number, fax number, e-mail address, and the type of organization you represent (e.g., industry, consumer organization).

Preregistered persons should check in before the meeting between 8:30 a.m. and 9 a.m. Persons who have not preregistered may register before the meeting between 8:30 a.m. and 9 a.m., dependent on space availability. All attendees must enter the building at the Independence Ave. entrance. If you need special accommodations due to disability (e.g., sign language interpreter), please inform the contact person when you register.

If, in addition to attending, you wish to make an oral presentation during the meeting, you must indicate this on your registration form and submit: (1) A brief written statement of the general nature of the views you wish to present, and (2) the names and addresses of all persons who will participate in the presentation. Depending on the number of people who register to make presentations, we will limit the time allotted for each presentation (from 3 to 5 minutes). If you decide at the meeting that you wish to make a comment, you must sign up at the registration desk, dependent on time availability. It is anticipated that, if time permits, persons attending the meeting will have the opportunity to ask questions during the meeting.

Interested persons may submit to the Dockets Management Branch (address above) written or electronic comments regarding the topics addressed at the public meeting on or before October 29, 2001. Two copies of any comments are to be submitted, except that individuals may submit one copy. Comments are to be identified with the docket number found in brackets in the heading of this document. Received comments may be seen in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.

You may access a copy of the transcript on the FDA Web site at http://www.fda.gov, request a transcript of the meeting from the Freedom of Information Office (HFI-35), Food and Drug Administration, 5600 Fishers Lane, rm. 12A-16, Rockville, MD 20857, approximately 20 working days after the meeting, at a cost of 10 cents per page, or examine a transcript of the meeting after September 10, 2001, at the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.

The following references have been placed on display in the Dockets Management Branch (address above) and may be seen between 9 a.m. and 4 p.m., Monday through Friday.

REGISTRATION FORM—PUBLIC MEETING ON ALLERGENS IN FOODS

1. A brief written statement of the general nature of the views you wish to present.

2. The names and addresses of all persons who will participate in the presentation.

This document describes proposed revisions by the National Labor Relations Board of its regulations under the Freedom of Information Act which include new provisions to implement the Electronic Freedom of Information Act Amendments of 1996 (Pub. L. 104-231). New provisions implementing the amendments are found at §§ 102.117 (a)(2) (electronic reading rooms), 102.117(c)(2)(i) and (ii) (timing of responses and expedited processing), 102.117(c)(2)(iii) (deletion marking and volume estimation), and 102.117(c)(2)(vi) (unusual circumstances). For specific sections and subsections of the regulations implementing the Electronic Freedom of Information Act Amendments of 1996, the following effective dates apply: 102.117(a)(2)—electronic reading rooms—November 1, 1997; 102.117(c)(2)(ii) and (c)(2)(vi)—processing requests with expedited treatment, and under unusual circumstances—October 2, 1997; and 102.117(c)(2)(iii)—volume estimation—October 2, 1997.

The National Labor Relations Board, in accordance with the Regulatory Flexibility Act (5 U.S.C. 606(b)), has reviewed these regulations and by approving it certifies that they will not have a significant economic impact on a substantial number of small entities. Under the Freedom of Information Act, agencies may recover only the direct costs of searching for, reviewing, and duplicating the records processed for requesters. Thus, fees assessed by the Agency are nominal. Further, the “small entities” that make FOIA requests, as compared with individual requesters and other requesters, are relatively few in number.

The regulatory review provisions of Executive Order 12866 do not apply to independent regulatory agencies. However, because the Office of Management and Budget has determined that this rule is a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, we have consulted with that Office prior to issuing this proposed rule.

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $ 100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States based companies to compete with foreign-based companies in domestic and export markets.

This part does not impose any reporting or record keeping requirements under the Paperwork Reduction Act of 1995.

For the reasons set forth in the preamble, the National Labor Relations Board proposes to amend 29 CFR Chapter I, Part 102, as follows:

(2) The following materials are available to the public for inspection and copying during normal business hours:

(i) All final opinions and orders made in the adjudication of cases;

(ii) Statements of policy and interpretations that are not published in the Federal Register;

(iii) Administrative staff manuals and instructions that affect any member of the public (excepting those establishing internal operating rules, guidelines, and procedures for investigation, trial, and settlement of cases);

(iv) A current index of final opinions and orders in the adjudication of cases;

(v) A record of the final votes of each Member of the Board in every Agency proceeding;

(vi) Records which have been released and which the Agency determines, because of their subject matter, have become or are likely to become the subject of subsequent requests for substantially the same records; and

(vii) A general index of records referred to in paragraph (a)(2)(vi) of this section. Items in paragraphs (a)(2)(i) through (vii) of this section are available for inspection and copying during normal business hours at the Board's offices in Washington, DC. Item in paragraph (a)(2)(iii) of this section is also available for inspection and copying during normal business hours at each Regional, Subregional, and Resident Office of the Board. Final opinions and orders made by Regional Directors in the adjudication of representation cases pursuant to the delegation of authority from the Board under section 3(b) of the Act are available to the public for inspection and copying in the original office where issued. Records encompassed within paragraphs (a)(2)(i) through (a)(2)(vii) of this section created on or after November 1, 1996, will be made available by November 1, 1997, to the public by computer telecommunications or, if computer telecommunications means have not been established by the Agency, by other electronic means. The Agency shall maintain and make available for public inspection and copying a current subject matter index of all reading room materials which shall be updated regularly, at least quarterly, with respect to newly included records. Copies of the index are available upon request for a fee of the direct cost of duplication. The index of FOIA-processed records referred to in paragraph (a)(2)(vii) of this section will be available by computer telecommunications by December 31, 1999.

(3) Copies of forms prescribed by the board for the filing of charges under section 10 alleging violations of the Act under section 8, or petitions under section 9, may be obtained without charge from any Regional, Subregional, or Resident Office of the Board. These forms are available electronically through the Agency's World Wide Web site (which can be found at http://www.nlrb.gov).

(4) The Agency shall, on or before February 1, 1998, and annually thereafter, submit a FOIA report covering the preceding fiscal year to the Attorney General of the United States. The report shall include those matters required by 5 U.S.C. 552(e), and shall be made available electronically.

(b)(1) The formal documents constituting the record in a case or proceeding are matters of official record and, until officially destroyed pursuant to applicable statutory authority, are available to the public for inspection and copying during normal business hours at the appropriate Regional Office of the Board or at the Board's office in Washington, DC, as the case may be. If the case or proceeding has been closed for more than 2 years, the appropriate Regional Office of the Board or the Board's office in Washington, DC, upon request, will contact the Federal Records Center to obtain the records.

(2) The Executive Secretary shall certify copies of all formal documents upon request made a reasonable time in advance of need and payment of lawfully prescribed costs.

(c)(1) Requests for the inspection and copying of records other than those specified in paragraphs (a) and (b) of this section must be in writing and must reasonably describe the record in a manner to permit its identification and location. The envelope and the letter, or the cover sheet of any fax transmittal, should be clearly marked to indicate that it contains a request for records under the Freedom of Information Act (FOIA). The request must contain a specific statement assuming financial liability in accordance with paragraph (d)(2) of this section for the direct costs of responding to the request. If the request is made for records in a Regional or Subregional Office of the Agency, it should be made to that Regional or Subregional Office; if for records in the Office of the General Counsel and located in Washington, DC, it should be made to the Freedom of Information Officer, Office of the General Counsel, Washington, DC; if for records in the offices the Board or the Inspector General in Washington, DC, to the Executive Secretary of the Board, Washington, DC. Requests made to other than the appropriate office will be forwarded to that office by the receiving office, but in that event the applicable time limit for response set forth in paragraph (c)(2)(i) of this section shall be calculated from the date of receipt by the appropriate office. Requesters may be given an opportunity to discuss their request so that requests may be modified to meet the requirements of this section. In the case of records generated by the Inspector General and in possession of another office, or in the possession of the Inspector General but generated by another office of the Agency, the request may be referred to the generating office for decision. If the Agency determines that a request does not reasonably describe records, it may contact the requester to inform the requester either what additional information is needed or why the request is insufficient. Similar referrals may, in the Agency's discretion, be made between other offices.

(2)(i) The Agency ordinarily shall respond to requests according to their order of receipt. Effective October 2, 1997, an initial response shall be made within 20 working days( i.e. exempting Saturdays, Sundays, and legal public holidays) after the receipt of a request for a record under this part by the Freedom of Information Officer or his designee. An appeal under paragraph (c)(2)(v) of this section shall be decided within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such an appeal by the Office of Appeals or the Chairman of the Board. Because the Agency has been able to process its requests without a backlog of cases, the Agency will not institute a multitrack processing system.

(ii) Requests and appeals will be taken out of order and given expedited treatment whenever it is determined that they involve: Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; an urgency to inform the public about an actual or alleged federal government activity, if made by a person primarily engaged in disseminating information; the loss of substantial due process rights; or a matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence. A request for expedited processing may be made at the time of the initial request for records or at any later time. A requester who seeks expedited processing must submit a statement, certified to be true and correct to the best of that person's knowledge and belief, explaining in detail the basis for requesting expedited processing. The formality of certification may be waived as a matter of administrative discretion. Within ten calendar days of its receipt of a request for expedited processing, the Agency shall decide whether to grant it and shall notify the requester of the decision. Once the determination has been made to grant expedited processing, the request shall be given priority and shall be processed as soon as practicable. If a request for expedited processing is denied, the Agency shall act expeditiously on any appeal of that decision.

(iii) Within 20 working days after receipt of a request by the appropriate office of the Agency a determination shall be made whether to comply with such request, and the person making the request shall be notified in writing of that determination. In the case of requests made to the Executive Secretary for Inspector General Records, that determination shall be made by the Inspector General. In the case of all other requests, that determination shall be made by the General Counsel's office, the Regional or Subregional Office, or the Executive Secretary's office, as the case may be. If the determination is to comply with the request, the records shall be made promptly available to the person making the request and, at the same time, a statement of any charges due in accordance with the provisions of paragraph (d) (2) of this section will be provided. If the determination is to deny the request in any respect, the requester shall be notified in writing of that determination. Adverse determinations, or denials of requests, consist of: A determination to withhold any requested record in whole or in part; a determination that a requested record does not exist or cannot be located; a determination that what has been requested is not a record subject to the Act; a determination on any disputed fee matter, including a denial of a request for a fee waiver or reduction or placement in a particular fee category; and a denial of a request for expedited treatment. For a determination to deny a request in any respect, the notification shall set forth the reasons therefor and the name and title or position of each person responsible for the denial, shall provide an estimate of the volume of records or information withheld, in number of pages or in some other reasonable form of estimation (this estimate does not need to be provided if the volume is otherwise indicated through deletions on records disclosed in part, or if providing an estimate would harm an interest protected by an applicable exemption), and shall notify the person making the request of the right to appeal the adverse determination under provisions of paragraph (c)(2)(v) of this section.

(iv) Business information obtained by the Agency from a submitter will be disclosed under the FOIA only consistent with the procedures established in this section.

(A) For purposes of this section:

( 1 ) Business information means commercial or financial information obtained by the Agency from a submitter that may be protected from disclosure under Exemption 4 of the FOIA.

( 2 ) Submitter means any person or entity from whom the Agency obtains business information, directly or indirectly. The term includes corporations; state, local, and tribal governments; and foreign governments.

(B) A submitter of business information will use goodfaith efforts to designate, by appropriate markings, either at the time of submission or at a reasonable time thereafter, any portions of its submission that it considers to be protected from disclosure under Exemption 4. These designations will expire ten years after the date of the submission unless the submitter requests, and provides justification for, a longer designation period. The Agency shall provide a submitter with prompt written notice of a FOIA request or administrative appeal that seeks its business information wherever required under paragraph (c)(2)(iv)(C) of this section, except as provided in paragraph (c)(2)(iv)(F) of this section, in order to give the submitter an opportunity to object to disclosure of any specified portion of that information under paragraph (c)(2)(iv)(D) of this section. The notice shall either describe the business information requested or include copies of the requested records or record portions containing the information. When notification of a voluminous number of submitters is required, notification may be made by posting or publishing the notice in a place reasonably likely to accomplish notification.

(C) Notice shall be given to a submitter wherever: the information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or the Agency has reason to believe that the information may be protected from disclosure under Exemption 4.

(D) The Agency will allow a submitter a reasonable time to respond to the notice described in paragraph (c)(2)(iv)(B) of this section. If a submitter has any objection to disclosure, it is required to submit a detailed written statement. The statement must specify all grounds for withholding any portion of the information under any exemption of the FOIA and, in the case of Exemption 4, it must show why the information is a trade secret or commercial or financial information that is privileged or confidential. In the event that a submitter fails to respond to the notice within the time specified in it, the submitter will be considered to have no objection to disclosure of the information. Information provided by a submitter under this paragraph may itself be subject to disclosure under the FOIA.

(E) The Agency shall consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose business information. Whenever the Agency decides to disclose business information over the objection of a submitter, the Agency shall give the submitter written notice, which shall include: A statement of the reason(s) why each of the submitter's disclosure objections was not sustained; a description of the business information to be disclosed; and a specified disclosure date, which shall be a reasonable time subsequent to the notice.

(F) The notice requirements of paragraphs (c)(2)(iv)(B) and (E) of this section shall not apply if: The Agency determines that the information should not be disclosed; the information lawfully has been published or has been officially made available to the public; disclosure of the information is required by statute (other than the FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or the designation made by the submitter under paragraph (c)(2)(iv)(B) of this section appears obviously frivolous-except that, in such a case, the Agency shall, within a reasonable time prior to a specified disclosure date, give the submitter written notice of any final decision to disclose the information.

(G) Whenever a requester files a lawsuit seeking to compel the disclosure of business information, the Agency shall promptly notify the submitter.

(H) Whenever the Agency provides a submitter with notice and an opportunity to object to disclosure under paragraph (c)(2)(iv)(B) of this section, the Agency shall also notify the requester(s). Whenever the Agency notifies a submitter of its intent to disclose requested information under paragraph (c)(2)(iv)(E) of this section, the Agency shall also notify the requester(s). Whenever a submitter files a lawsuit seeking to prevent the disclosure of business information, the Agency shall notify the requester(s).

(v) An appeal from an adverse determination made pursuant to paragraph (c)(2)(iii) of this section must be filed within 20 working days of the receipt by the person making the request of the notification of the adverse determination where the request is denied in its entirety; or, in the case of a partial denial, within 20 working days of the receipt of any records being made available pursuant to the request. If the adverse determination was made in a Regional Office, a Subregional Office, or by the Freedom of Information Officer, Office of the General Counsel, the appeal shall be filed with the General Counsel in Washington, DC. If the adverse determination was made by the Executive Secretary of the Board or the Inspector General, the appeal shall be filed with the Chairman of the Board in Washington, DC. Within 20 working days after receipt of an appeal the General Counsel or the Chairman of the Board, as the case may be, shall make a determination with respect to such appeal and shall notify the person making the request in writing. If the determination is to comply with the request, the record shall be made promptly available to the person making the request upon receipt of payment of any charges due in accordance with the provisions of paragraph (d)(2) of this section. If on appeal the denial of the request for records is upheld in whole or in part, the person making the request shall be notified of the reasons for the determination, the name and title or position of each person responsible for the denial, and the provisions for judicial review of that determination under the provisions of 5 U.S.C. 552(4)(B). Even though no appeal is filed from a denial in whole or in part of a request for records by the person making the request, the General Counsel or the Chairman of the Board may, without regard to the time limit for filing of an appeal, sua sponte initiate consideration of an adverse determination under this appeal procedure by written notification to the person making the request. In such event the time limit for making the determination shall commence with the issuance of such notification. An adverse determination by the General Counsel or the Chairman of the Board, as the case may be, will be the final action of the Agency. If the requester wishes to seek review by a court of any adverse determination, the requester must first appeal it under this section.

(vi) In unusual circumstances as specified in this paragraph, the time limits prescribed in either paragraph (c)(2)(i) or (iv) of this section may be extended by written notice to the person requesting the record setting forth the reasons for such extension and the date on which a determination is expected to be dispatched. No such notice or notices shall specify a date or dates that would result in an extension or extensions totaling more than 10 working days with respect to a particular request, except as set forth below in this paragraph. As used in this paragraph, unusual circumstances means, but only to the extent reasonably necessary to the proper processing of the particular request:

(A) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;

(B) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request;

(C) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or with two or more components of the Agency having a substantial subject matter interest in the request. Where the extension is for more than ten working days, the Agency shall provide the requester with an opportunity either to modify the request so that it may be processed within the time limits or to arrange an alternative time period for processing the request or a modified request.

(vii) The Agency shall preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, until disposition or destruction is authorized by title 44 of the United States Code or the National Archives and Records Administration's General Records Schedule 14. Records will not be disposed of while they are the subject of a pending request, appeal, or lawsuit under the FOIA.

(d)(1) For purposes of this section, the following definitions apply:

(i) Direct costs means those expenditures which are actually incurred in searching for and duplicating and, in the case of commercial use requests, reviewing documents to respond to a FOIA request.

(ii) Search refers to the process of looking for and retrieving records or information responsive to a request.

It includes page-by-page or line-by-line identification of material within documents and also includes reasonable efforts to locate and retrieve information from records maintained in electronic form or format. The Agency shall ensure that searches are done in the most efficient and least expensive manner reasonably possible.

(iii) Duplication refers to the process of making a copy of a record, or the information contained in it, necessary to respond to a FOIA request. Such copies can take the form of paper, microfilm, videotape, audiotape, or electronic records (e.g., magnetic tape or disk), among others. The Agency shall honor a requester's specified preference of form or format of disclosure if the record is readily reproducible with reasonable efforts in the requested form or format by the office responding to the request.

(iv) Review refers to the process of examining documents located in response to a request that is for commercial use to determine whether any portion of it is exempt from disclosure. It includes processing any documents for disclosure, e.g., doing all that is necessary to redact and prepare them for disclosure. Review time includes time spent considering any formal objection to disclosure made by a business submitter under paragraph (c)(2)(iv) of this section, but does not include time spent resolving general legal or policy issues regarding the application of exemptions.

(v) Commercial use request refers to a request from or on behalf of a person who seeks information for a use or purpose that furthers the commercial, trade, or profit interests of the requester or the person on whose behalf the request is made, which can include furthering those interests through litigation.

(vi) Educational institution refers to a preschool, a public or private elementary or secondary school, an institution of undergraduate higher education, an institution of graduate higher education, an institution of professional education, or an institution of vocational education, that operates a program of scholarly research. To be in this category, a requester must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are not sought for a commercial use but are sought to further scholarly research.

(vii) Representative of the news media refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term news means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large and publishers of periodicals (but only in instances where they can qualify as disseminators of “news”) who make their products available for purchase or subscription by the general public. For “freelance” journalists to be regarded as working for a news organization, they must demonstrate a solid basis for expecting publication through that organization. A publication contract would be the clearest proof, but the Agency shall also look to the past publication record of a requester in making this determination. To be in this category, a requester must not be seeking the requested records for commercial use. However, a request for records supporting the news dissemination function of the requester shall not be considered to be for a commercial use.

(viii) Working days, as used in this paragraph, means calendar days excepting Saturdays, Sundays, and legal holidays.

(2) Persons requesting records from this Agency shall be subject to a charge of fees for the full allowable direct costs of document search, review, and duplicating, as appropriate, in accordance with the following schedules, procedures, and conditions:

(i) Schedule of charges:

(A) For each one-quarter hour or portion thereof of clerical time * * * $3.10

(B) For each one-quarter hour or portion thereof of professional time * * * $9.25

(C) For each sheet of duplication (not to exceed 8 1/2 by 14 inches) of requested records * * * $0.12

(D) All other direct costs of preparing a response to a request shall be charged to the requester in the same amount as incurred by the Agency. Such costs shall include, but not be limited to: Certifying that records are true copies; sending records to requesters or receiving records from the Federal records storage centers by special methods such as express mail; and, where applicable, the cost of conducting computer searches for information and for providing information in electronic format.

(ii) Fees incurred in responding to information requests are to be charged in accordance with the following categories of requesters:

(A) Commercial use requesters will be assessed charges to recover the full direct costs for searching for, reviewing for release, and duplicating the records sought. Requesters must reasonably describe the records sought.

(B) Educational institution requesters will be assessed charges for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, requesters must show that the request is being made under the auspices of a qualifying institution and that the records are not sought for commercial use, but are sought in furtherance of scholarly research. Requesters must reasonably describe the records sought.

(C) Requesters who are representatives of the news media will be assessed charges for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, a requester must meet the criteria in paragraph (d)(1)(vii) of this section, and the request must not be made for commercial use. In reference to this class of requester, a request for records supporting the news dissemination function of the requester shall not be considered to be a request that is for commercial use. Requesters must reasonably describe the records sought.

(D) All other requesters, not elsewhere described, will be assessed charges to recover the full reasonable direct cost of searching for and reproducing records that are responsive to the request, except that the first 100 pages of reproduction and the first 2 hours of search time shall be furnished without charge. Requesters must reasonably describe the records sought.

(E) Absent a reasonably based factual showing that a requester should be placed in a particular user category, fees will be imposed as provided for in the commercial use requester category.

(iii)(A) In no event shall fees be imposed on any requester when the total charges are less than $5, which is the Agency's cost of collecting and processing the fee itself.

(B) If the Agency reasonably believes that a requester or a group of requesters acting together is attempting to divide a request into a series of requests for the purpose of avoiding fees, the Agency may aggregate those requests and charge accordingly. The Agency may presume that multiple requests of this type made within a 30-day period have been made in order to avoid fees. Where requests are separated by a longer period, the Agency will aggregate them only where there exists a solid basis for determining that aggregation is warranted under all the circumstances involved. Multiple requests involving unrelated matters will not be aggregated.

(iv) Documents are to be furnished without charge or at reduced levels if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Government and is not primarily in the commercial interest of the requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return shall not be presumed to primarily serve the public interest. A fee waiver or reduction is justified where the public interest standard is satisfied and that public interest is greater in magnitude than that of any identified commercial interest in disclosure. Where only some of the requested records satisfy the requirements for a waiver of fees, a waiver shall be granted for those records.

(v) If a requester fails to pay chargeable fees that were incurred as a result of the Agency's processing of the information request, beginning on the 31st day following the date on which the notification of charges was sent, the Agency may assess interest charges against the requester in the manner prescribed in 31 U.S.C. 3717. Where appropriate, other steps permitted by federal debt collection statutes, including disclosure to consumer reporting agencies, use of collection agencies, and offset, will be used by the Agency to encourage payment of amounts overdue.

(vi) Each request for records shall contain a specific statement assuming financial liability, in full or to a specified maximum amount, for charges, in accordance with paragraphs (d)(2)(i) and (ii) of this section, which may be incurred by the Agency in responding to the request. If the anticipated charges exceed the maximum limit stated by the person making the request or if the request contains no assumption of financial liability or charges, the person shall be notified and afforded an opportunity to assume financial liability. In either case, the request for records shall not be deemed received for purposes of the applicable time limit for response until a written assumption of financial liability is received. The Agency may require a requester to make an advance payment of anticipated fees under the following circumstances:

(A) If the anticipated charges are likely to exceed $250, the Agency shall notify the requester of the likely cost and obtain satisfactory assurance of full payment when the requester has a history of prompt payment of FOIA fees, or require an advance payment of an amount up to the full estimated charges in the case of requesters with no history of payment.

(B) If a requester has previously failed to pay fees that have been charged in processing a request within 30 days of the date of the notification of fees was sent, the requester will be required to pay the entire amount of fees that are owed, plus interest as provided for in paragraph (d)(2)(v) of this section, before the Agency will process a further information request. In addition, the Agency may require advance payment of fees that the Agency estimates will be incurred in processing the further request before the Agency commences processing that request. When the Agency acts under paragraph (d)(2)(vi)(A) or (B) of this section, the administrative time limits for responding to a request or an appeal from initial denials will begin to run only after the Agency has received the fee payments required above.

(vii) Charges may be imposed even though the search discloses no records responsive to the request, or if records located are determined to be exempt from disclosure.

The Uniform Offering Circular, in conjunction with the offering announcement for each auction, provides the terms and conditions for the sale and issuance in an auction to the public of marketable Treasury bills, notes and bonds. 1 One of these terms (rules) is the limit on the award to any one bidder of 35 percent of the offering amount. In this notice, we first describe this rule and its rationale, and why we are considering a change. Second, we give historical background. Third, we describe various alternatives on which we are seeking comment.

The 35 percent rule generally limits auction awards for any one competitive bidder to 35 percent of the total amount offered to the public in a particular auction. 2 This rule ensures that awards in our auctions are distributed to a number of auction participants, rather than to just one or two. This principle of broad distribution is intended to encourage participation by a significant number of competitive bidders in each auction. Broad participation keeps our borrowing costs to a minimum, helps ensure that Treasury auctions are fair and competitive, and makes it less likely that ownership of Treasury securities will become overly concentrated.

A key component of the 35 percent award limit is the net long position calculation. 3 If a bidder has a reportable NLP, we subtract it from the 35 percent award limit in determining the bidder's maximum award amount for the auction.

The net long position is generally the amount of the security being auctioned that a bidder has obtained, or has arranged to obtain, outside of the auction in the secondary market. The term “net long” refers to the extent to which an investor has bought (or has agreed to buy) more of a security than it has sold (or has agreed to sell). The specific components of the NLP are intended to capture the various ways that a bidder can acquire a Treasury security. As defined in § 356.13(b), these components are the par amount of:

(1) Holdings of outstanding securities with the same CUSIP  4 number as the security being auctioned;

(2) Positions, in the security being auctioned, in

(i) When-issued trading, 5

(ii) Futures contracts that require delivery of the specific security being auctioned (but not futures contracts for which the security being auctioned is one of several securities that may be delivered, and not futures contracts that are cash-settled), and

(iii) Forward contracts (including next-day settling); and

(3) Holdings of STRIPS  6 principal components of the security being auctioned, including when-issued trading positions of such principal components.

A competitive bidder is required to report its NLP if the sum of its bids plus its NLP equals or exceeds the NLP reporting threshold, currently $2 billion for Treasury notes and bonds and $1 billion for Treasury bills (unless otherwise stated in the offering announcement). 7 If a bidder's total bids exceed the reporting threshold but the bidder either has no position or has a net short position, it must report an NLP of zero.

The application of the NLP reporting requirement and the 35 percent award limit in reopenings has caused us to re-examine the way the NLP is calculated. In a reopening, we apply the 35 percent limit to the public offering amount of that specific auction. Because a bidder must include any holdings of the security being auctioned in its NLP calculation, it may be awarded less in a reopening than it would if it had no such holdings. The bidder's award may be reduced—or it may receive no award—even though the bidder's portion of the total amount outstanding of the security may be under 35 percent once we issue the additional reopening amount.

For example, assume a bidder owns $3.5 billion of a Treasury security that has $10 billion outstanding, and the bidder has no other positions in that security. If we were to reopen the security by offering an additional $10 billion to the public, that bidder would not be awarded any additional securities because its NLP of $3.5 billion would already equal the 35 percent limit ($10 billion × .35). However, after we issued the additional $10 billion, the bidder would hold only 17.5 percent of the total combined amount outstanding ($3.5 billion/$20 billion).

Reopenings are now more frequent because in February 2000 we adopted a policy of regular reopenings to preserve the liquidity of our longer-term securities as our borrowing needs have declined. 8 In addition, we announced today that we will begin four-week bill auctions the week of July 30. These auctions will be reopenings of previously issued Treasury bills. Along with the publication of this notice, Treasury is issuing a press release that describes the net long position reporting requirements and the application of the 35 percent award limit for Treasury four-week bill auctions while we consider whether to modify the rule.

Since Treasury announced its policy of more frequent reopenings, several auction participants have asserted that the likelihood of their being precluded from participating in a future reopening has increased because of the requirement to include current holdings of the security being auctioned in the NLP calculation. The Treasury Borrowing Advisory Committee of The Bond Market Association addressed this issue in May 2001. The Committee recommended that the auction rules be modified so that “the net long position used in the calculation of a bidder's position refers only to the position in the when-issued security.”  9 Regarding the 35 percent award limit itself, a majority of the Committee felt there was a need for some threshold limit but was unprepared to state what that limit might be.

The development of more frequent reopenings and declining borrowing needs make this an opportune time to re-examine the application of the NLP and the 35 percent limit. Our goal is to strike a better balance between fostering broad participation in Treasury auctions while still limiting the potential for concentration of ownership.

Application of the 35 percent award limit and the NLP reporting requirement has evolved over the years. The initial limitation, introduced in August 1962, was 25 percent of the auction offering amount. In May 1979, the 25 percent award limit was modified to apply to the “public” offering amount instead of the total offering amount. This modification excluded from the 25 percent calculation those Treasury securities allotted to the Federal Reserve in exchange for maturing securities held both for its own account and for the accounts of foreign official institutions. It also excluded Treasury securities allotted to the Federal Reserve for new cash tenders  10 on behalf of foreign official institutions. One consequence of this rule modification was that it reduced the possible award size for competitive bidders.

In September 1981, Treasury increased the maximum award in marketable Treasury securities auctions from 25 percent to 35 percent of the public offering amount. The ceiling was raised to lessen the effect of the 1979 modification that limited the 25 percent rule to the public offering amount instead of the total offering amount.

In July 1990, the 35 percent limit was extended to bids as well as awards, limiting the maximum bid that we would recognize at any one yield to 35 percent of the public offering amount.

Although some changes have been made to NLP reporting and the “public offering amount” to which the 35 percent limit is applied, the basic 35 percent rule has remained unchanged since 1990. We note that after the Uniform Offering Circular was published in proposed form on January 31, 1992 (57 FR 3870), several commenters questioned the requirement that, in a reopening, a bidder include its holdings of the outstanding security in its NLP calculation. At that time, we retained the provision because, “[i]f the holdings of the issue being reopened were to be excluded from the net long position computation, a holder of a large outstanding amount could receive an auction award that, when combined with its net long position, would highly concentrate the holdings of the security as a result of the reopening. Similarly, if the 35% were to be applied to the combined auction amounts, holders of relatively small amounts of outstanding securities would be in a position to receive significantly more than 35% of the additional offering.”  11

We are considering a number of alternatives to reach our goal of fostering broad participation in Treasury auctions while limiting the potential for concentration of ownership. As a result of our considerations to this point, we feel currently that Alternative 1 is the most workable. We are inviting comments on these alternatives.

Alternative 1: Optional excludable amount for a portion of a bidder's current holdings. Under this alternative, a bidder would have the option of subtracting from the current holdings component of the NLP, combined with any STRIPS principal components of the security being auctioned, up to 35 percent of the combined prior offering amounts of that security. We would specify in the offering announcement for the reopening the amount of holdings that may be excluded from the NLP calculation. The bidder would be required to include in the NLP calculation any holdings above this announced excludable amount.

Here's an example. Suppose we reopen a Treasury note that had a previous offering amount of $10 billion by offering an additional $10 billion. Also suppose that a bidder already holds $3 billion par of that note, $1 billion of the note's STRIPS principal component, and no other position in the security. That bidder would be able to exclude $3.5 billion from its NLP calculation for the reopening auction since $3.5 billion is 35 percent of the previous offering amount. We would specify this $3.5 billion excludable amount in the reopening offering announcement. The bidder's NLP calculation would therefore be $4 billion minus $3.5 billion, or $0.5 billion. The bidder could be awarded up to $3 billion more of the note in the reopening auction. If the bidder were to be awarded this amount in the reopening, on the settlement date it would have a total of $7 billion, or 35 percent, of the total $20 billion of the note outstanding (assuming there were no other changes in its position).

Alternative 2: Eliminate the NLP reporting requirement altogether and reduce the 35 percent limit to 25 percent (or some other amount below 35 percent). We are including this alternative as a possible means to overcome the operational difficulties that can result from bidders having to calculate their net long positions shortly before the competitive bidding deadline.

Alternative 3: Keep the current NLP calculation requirement, but Treasury would compute the 35 percent limit based on the offering amount plus any previous offering amounts. For example, if we offered $10 billion of a Treasury security in a previous auction, and we offered an additional $10 billion of the security in a reopening, a bidder with no net long position would be able to purchase up to $7 billion ($20 billion × .35%) of the reopening offering. (If the security were being offered for a third time for an additional $10 billion, a bidder with no NLP could be awarded the entire amount of the reopening.)

Alternative 4: Continue to calculate the 35 percent limit on the reopening public offering amount, but redefine the net long position as including only the when-issued position. This was the recommendation of the Treasury Borrowing Advisory Committee of The Bond Market Association.

Alternative 5: Keep the current NLP calculation requirement, but increase the 35 percent limit.

Alternative 6: Retain both the 35 percent limit and the NLP reporting requirement as they exist now.

In addition to inviting comments on all of the above alternatives, we also invite comments on any other alternatives. The preliminary views expressed in this notice may change in light of the comments received.

It has been determined that this is not a significant regulatory action for purposes of Executive Order 12866.

In two unrelated rulemakings, the Commission amended its rules of practice, 39 CFR 3001.1 et seq., to provide for expedited consideration of certain Postal Service requests for a recommended decision. The first, adopted in 1989, concerned changes in Express Mail rates and fees. The second, adopted in 1996, entailed four rules designed to address certain types of classification changes. These five rules contain a common thread; each includes a five-year sunset provision; each of these rules has now expired.

By this notice, the Commission solicits comments from interested persons concerning the advisability of reissuing some or all of these rules. The rules are briefly described below. 1

Rules 57 through 57c govern Postal Service requests for an expedited recommended decision on changes in Express Mail rates and fees. These rules were adopted in response to a Postal Service petition requesting the Commission to initiate a rulemaking to implement special rules designed to consider changes in Express Mail rates prompted by changes in market conditions. See order no. 836, docket no. RM88-2, August 10, 1989. The rules provide for a compressed procedural schedule under which the Commission is to consider the Postal Service's market rate request within 90 days of its filing. Rule 57c; see also rule 57b(e)(5). As adopted, the rules were designed, consistent with due process, to expedite consideration of proposed changes in Express Mail rates occasioned by market conditions for the purpose of minimizing the loss of Express Mail's contribution to institutional costs recommended in the most recent omnibus rate case. Rule 57(a). The rules included a sunset provision limiting their effectiveness for a period of five years from the date of their adoption by the Commission. Rule 57(b).

In August 1994, on or about the date the rules expired, the Postal Service requested the Commission to institute a rulemaking proceeding to reissue the rules. After notice and comment, the Commission reissued the rules, including the sunset provision. Order no. 1042, docket no. RM95-1, February 17, 2000. The reissued rules (57 through 57c) expired March 6, 2000.

The Postal Service never invoked these rules. Nor has it sought to have them reissued after their expiration in March 2000.

In April 1995, the Postal Service petitioned the Commission to initiate a rulemaking involving changes or additions to the Commission's procedural rules concerning limited rate and classification matters. The petition drew heavily on a report, “Postal Ratemaking in a Time Change,” issued by the Joint Task Force on Postal Ratemaking, June 1, 1992. In an advance notice of proposed rulemaking the Commission requested comments on the Postal Service's petition. 60 FR 22017, May 4, 1995. Following the receipt of comments by interested parties, the Commission issued a notice of proposed rulemaking in which it proposed specific amendments to its rules of practice designed to expedite consideration of certain limited classification-related changes requested by the Postal Service. Order no. 1084, docket no RM95-4, October 13, 1995. Thereafter, in a final rule issued, in May 1996, the Commission adopted three separate set of rules designed to facilitate expedited review of Postal Service requests concerning market tests provisional service changes of limited duration, and minor classification changes. Order no. 1110, docket no. RM95-4, May 7, 1996. In addition, the Commission adopted a rule permitting the Postal Service to request use of multi-year test period for a new services. Id. at 19-22. Each of these rules included a five-year sunset provision. Each has expired.

Rules 161 through 166 govern requests by the Postal Service to permit market testing of a proposed service change to develop information necessary to support a permanent classification change. Among other things, these rules, which pertain exclusively to the Commission's determination to recommend for or against the market test, identify the data to be provided, e.g., such data as are necessary to fully inform the Commission and the parties of the nature and impact of the market test (rule 162); outline the procedures to be followed (rule 163); and provide a rule for decision under which the Commission has 90 days to consider the proposed market test (rule 164). Absent good cause, the Commission shall not recommend market tests of more than one-year duration. Rule 161(b).

The Postal Service invoked these rules once. In docket no. MC98-1, Mailing Online Service, the Postal Service sought to conduct a market test of a proposed mailing online service prior to its introduction as an experimental mail classification. The Commission approved the proposed market test. PRC Op. MC98-1, October 7, 1998. The Postal Service, however, encountered technical difficulties in its market test, and, as result, withdrew its proposal to conduct an expanded Mailing Online experiment. Subsequently, in November 1999, the Postal Service filed docket no. MC2000-2 to implement a nationwide Mailing Online experiment.

Rules 171 through 176 govern requests for the establishment of a provisional service to supplement, but not alter, existing mail classifications and rates for a limited and fixed duration. The requirements of these rules are generally similar to those for market tests, e.g., identifying the data to be provided, the procedures to be followed, and the timetable for decision. See rules 172-74. Provisions service changes are limited to a duration of no more than two years, which, upon request, may be extended for an additional year if a Postal Service request to establish the provisional service as a permanent mail classification is pending before the Commission. See rule 171(a).

The Postal Service has employed these rules once. In docket no. MC97-5, the Postal Service requested a provisional classification and fee schedule for a packaging service under which mailers would bring items to selected post offices for packing prior to mailing as parcels. The Commission recommended the provisional service, albeit with modifications. PRC Op. MC97-5, March 31, 1998. The Governors have not acted on this recommended decision.

Rules 69 through 69c provide for expedited review of Postal Service requests for a recommended decision of minor mail classification changes. A change is considered minor if it: involves no change in an existing rate or fee, would impose no new eligibility requirements on a subclass or rate category, and would not significantly affect the institutional cost contribution of the affected subclass or rate category. These rules, while differing somewhat from those for the other expedited proceedings, do describe the data to be filed and the procedures to be followed. Rules 69a-69b. The rules prescribe a timetable for the Commission to decide whether to treat the request as a minor classification change. Rule 69b(f). In addition, the rules provide for a recommended decision no later than 120 days after the filing of the request. Rule 69c. The Postal Service has employed these rules once. In docket no. MC99-4, the Postal Service sought expedited review of its request for a classification change expanding the availability of Bulk Parcel Return Service (BPRS). An unopposed stipulation and agreement formed the basis of the Commission's recommended decision in that proceeding. PRC Op. MC99-4, August 19, 1999; see also Governors' Decision, Docket No. MC99-4, August 30, 1999.

Subpart K of the Commission's rules, rules 181 and 182, authorizes the Postal Service to request an extended test period (of up to five years) for the purposes of determining breakeven of a proposed new postal service. Rule 181. Among other things, the Postal Service must justify its request through testimony and other documentary support. Rule 182.

The Postal Service has never invoked the multi-year test period rules.

The rules, which were initiated at the Postal Service's request, were designed to provide the Postal Service with procedural options to facilitate expedited consideration of certain proposals. The rules have been invoked sparingly or not at all. The question, therefore, arises whether the rules or some of them have sufficient value to warrant reissuing them. Consequently, as part of its review process, the Commission requests comments on which of these rules, if any, should be reissued. Comments are due no later than August 21, 2001. Following receipt of comments, the commission will, if warranted, issue a notice of proposed rulemaking to revise its rules of practice and procedure.

Ted P. Gerarden, director of the office of the consumer advocate, is designated to represent the interests of the general public in this docket. It is ordered:

1. Interested persons may submit comments by no later than April 21, 2001, on which of the foregoing rules, if any, should be reissued.

2. Ted P. Gerarden, director of the office of the consumer advocate, is designated to represent the interests of the general public in this docket.

3. The acting secretary shall cause this notice and order concerning the rules of practice to be published in the Federal Register .

Throughout this document, wherever “we”, “us”, or “our” are used, we mean the Environmental Protection Agency (EPA).

Particulate matter with an aerodynamic diameter of less than 10 micrometers (PM-10) is the pollutant that is the subject of this action. The NAAQS are safety thresholds for certain ambient air pollutants set by EPA to protect public health and welfare. PM-10 is among the ambient air pollutants for which EPA has established a health-based standard.

PM-10 causes adverse health effects by penetrating deep in the lung, aggravating the cardiopulmonary system. Children, the elderly, and people with asthma and heart conditions are the most vulnerable.

On July 1, 1987 (52 FR 24634), EPA revised the NAAQS for particulate matter with an indicator that includes only those particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers. (See 40 CFR 50.6).

The 24-hour primary PM-10 standard is 150 micrograms per cubic meter (μg/m 3 ) with no more than one expected exceedance per year. The annual primary PM-10 standard is 50 μg/m 3 as an annual arithmetic mean. The secondary PM-10 standards, promulgated to protect against adverse welfare effects, are identical to the primary standards.

Upon enactment of the 1990 Clean Air Act Amendments (Act), PM-10 areas meeting the requirements of either (i) or (ii) of section 107(d)(4)(B) of the Act were designated nonattainment for PM-10 by operation of law and classified “moderate”. See generally, 42 U.S.C. 7407(d)(4)(B). These areas included all former Group I PM-10 planning areas identified in 52 FR 29383 (August 7, 1987) and further clarified in 55 FR 45799 (October 31, 1990), and any other areas violating the NAAQS for PM-10 prior to January 1, 1989 (many of these areas were identified by footnote 4 in the October 31, 1990 Federal Register document). A Federal Register notice announcing the areas designated nonattainment for PM-10 upon enactment of the 1990 Amendments, known as “initial” PM-10 nonattainment areas, was published on March 15, 1991 (56 FR 11101). A subsequent Federal Register document correcting some of these areas was published on August 8, 1991 (56 FR 37654). These nonattainment designations and moderate area classifications were codified in 40 CFR part 81 in a Federal Register document published on November 6, 1991 (56 FR 56694). All other areas in the nation not designated nonattainment at enactment were designated unclassifiable (see section 107(d)(4)(B)(iii) of the Act).

In January and February of 1991, we notified the Governors of those States which recorded violations of the PM-10 standard after January 1, 1989 that EPA believed that those areas should be redesignated as nonattainment for PM-10. In September 1992 we proposed that several areas be redesignated nonattainment for PM-10 and took final action on December 21, 1993 (58 FR 67335). Bullhead City and Payson in Arizona and Sacramento and San Bernardino in California were among those areas listed. The effective date of the final action redesignating these areas as nonattainment for the PM-10 NAAQS was January 20, 1994. However the current Code of Federal Regulations (CFR), 40 CFR 81.303, gives an incorrect date, namely January 20, 1990, for the designation of Bullhead City to nonattainment. We are therefore in this proposal correcting the § 81.303 so that the date of Bullhead City's designation to nonattainment is January 20, 1994. Under section 188(c)(1) of the Act, the applicable attainment date is to be no later than the sixth calendar year after the area's designation as a moderate nonattainment area for the PM-10 NAAQS. Given that the effective date occurred in 1994, the applicable attainment date for these areas is no later than December 31, 2000.

Pursuant to sections 179(c) and 188(b)(2) of the Act, we have the responsibility of determining within six months of the applicable attainment date whether, based on air quality data, the PM-10 nonattainment areas attained the NAAQS by that date. Determinations under section 179(c)(1) of the Act are to be based upon an area's “'air quality as of the attainment date”. Section 188(b)(2) is consistent with this requirement.

Generally, we will determine whether an area's air quality is meeting the PM-10 NAAQS for purposes of section 179(c)(1) and 188(b)(2) based upon data gathered at established state and local air monitoring stations (SLAMS) and national air monitoring sites (NAMS) in the nonattainment area and entered into the Aerometric Information Retrieval System (AIRS). Data entered into the AIRS has been determined to meet federal monitoring requirements (see 40 CFR 50.6, 40 CFR part 50 appendix J, 40 CFR part 53, 40 CFR part 58, appendices A & B) and may be used to determine the attainment status of areas. We will also consider air quality data from other air monitoring stations in the nonattainment area provided that the stations meet the federal monitoring requirements for SLAMS. All data are reviewed to determine the area's air quality status in accordance with our guidance at 40 CFR part 50, appendix K.

Attainment of the annual PM-10 standard is achieved when the annual arithmetic mean PM-10 concentration over a three year period (for example, 1998, 1999, and 2000 for areas with a December 31, 2000 attainment date) is equal to or less than 50 μg/m 3 . Attainment of the 24-hour standard is determined by calculating the expected number of days in a year with PM-10 concentrations greater than 150 μg/m 3 . The 24-hour standard is attained when the expected number of days with levels above 150 μg/m 3 (averaged over a three year period) is less than or equal to one. Three consecutive years of air quality data are generally necessary to show attainment of the 24-hour and annual standard for PM-10. See 40 CFR part 50 and appendix K. A complete year of air quality data, as referred to in 40 CFR part 50, appendix K, is comprised of all 4 calendar quarters with each quarter containing data from at least 75 percent of the scheduled sampling days.

As moderate PM-10 nonattainment areas that were redesignated as such effective in 1994, Bullhead City, Payson, Sacramento and San Bernardino were required by CAA section 188 to attain the PM-10 NAAQS by December 31, 2000. As noted above, section 188 of the CAA requires EPA to determine whether such moderate areas have attained the NAAQS within six months of the attainment date.

The Bullhead City PM-10 nonattainment area is located in northwestern Arizona in Mohave County. It encompasses 200 square miles and extends across mostly desert terrain interrupted by mesas and mountains. Bullhead City itself is a rapidly growing urbanized area of 43 square miles. The Colorado River and the Nevada/Arizona border form the western boundary of the nonattainment area.

Bullhead City's primary economic activities are tourism, the hydroelectric facility at Davis Dam, and the Mohave Generating Station, a coal-fired power plant on the Nevada side of the Colorado River. Bullhead City also provides housing for employees working at casinos in nearby Laughlin, Nevada. The annual average temperature is 85 degrees F and temperatures can reach 125 degrees F in the summer. Average rainfall is about 4 inches.

Bullhead City has one SLAMS monitor operated by the Arizona Department of Environmental Quality (ADEQ). The following table summarizes the one-in-six day PM-10 data collected from 1998—2000. We deemed the data from this site valid and the data has been submitted by the ADEQ to be included in AIRS.

The PM-10 concentrations reported at the Bullhead City monitoring site showed no measured exceedance of the 24-hour PM-10 NAAQS between 1998 and 2000. Thus, the three-year average was less than 1.0, which indicates Bullhead City attained the 24-hour PM-10 NAAQS as of December 31, 2000.

Review of the annual standard for calendar years 1998, 1999 and 2000 reveals that Bullhead City also attained the annual PM-10 NAAQS by December 31, 2000. There was no violation of the annual standard for the three-year period from 1998 through 2000.

Payson, at an elevation of 4,848 feet, is located in northeast Arizona and has a population of approximately 8,000. Major economic activities in the area are the lumber industry and recreation. Sources of PM-10 emissions in Payson include wood smoke, unpaved roads, paved roads and other industrial/ miscellaneous sources.

The ADEQ operates a single SLAMS monitor in the Payson area. We deemed the data from this site valid and the data was submitted by Arizona to be included in AIRS.

The following table summarizes the one-in-six day PM-10 data collected from 1998 through 2000.

The PM-10 concentrations reported at the Payson monitoring site showed no measured exceedances of the 24-hour PM-10 NAAQS between 1998 and 2000, which indicates Payson attained the 24-hour PM-10 NAAQS as of December 31, 2000.

Review of the annual standard for calendar years 1998, 1999 and 2000 reveals that Payson also attained the annual PM-10 NAAQS by December 31, 2000. The monitoring site showed no violation of the annual standard in the three-year period from 1998 through 2000.

The San Bernardino PM-10 nonattainment area that is the subject of this action includes the entire county excluding that portion of the county that is located in the Searles Valley Planning area, 1 and excluding that portion of the county that is located in the South Coast Air Basin. 2 The nonattainment area covers over 18,000 square miles, but includes only about 315,000 persons. The area is relatively rural with only a few densely populated centers of urban development, all of which are located in the southwest portion and contain 97 percent of the population. San Bernardino also contains two military bases, Twenty-Nine Palms and Fort Irwin National Training Center. The climate of the area is characteristic of a desert environment. Two mountain ranges block the desert from the cool moist coast air of the South Coast Air Basin. The region generally experiences hot dry summers and mild winters with very little annual rainfall.

Major PM-10 emissions sources in the past included city and county unpaved road travel, vehicle activity on Bureau of Land Management land, construction, paved road dust entrainment and windblown fugitive dust from disturbed areas.

The Mojave Desert Air Quality Management District, which has jurisdiction over the San Bernardino PM-10 nonattainment area, maintains five PM-10 monitoring stations which are located in the population centers. PM-10 monitoring is also ongoing at Fort Irwin and Twenty-nine Palms. We deemed the data from these sites valid and the data was submitted by California to be included in AIRS.

The following table summarizes the one-in-six day PM-10 data collected since 1998-2000.

The PM-10 concentrations reported at the five different monitoring sites showed no measured exceedances of the 24-hour PM-10 NAAQS between 1998 and 2000, which indicates San Bernardino attained the 24-hour PM-10 NAAQS as of December 31, 2000.

Review of the annual standard for calendar years 1998-2000 reveals that San Bernardino also attained the annual PM-10 NAAQS by December 31, 2000. No monitoring sites showed a violation of the annual standard in the three-year period from 1998 through 2000.

The Sacramento PM-10 nonattainment area comprises the entire county of Sacramento. The County is approximately 995 square miles and is located in the northern portion of the Central Valley of California. The area has experienced tremendous growth in population over the past twenty years. The major economic activity in the area is government services and retail trade, along with significant agricultural, industrial and construction industries.

The Sacramento Metropolitan Air Quality Management District, which has jurisdiction over the Sacramento PM-10 nonattainment area, maintains five PM-10 monitoring stations which are located in the Sacramento metropolitan area. The following table summarizes the one-in-six day PM-10 data collected from 1998-2000.

The PM-10 concentrations reported at the five different monitoring sites showed no measured exceedances of the 24-hour PM-10 NAAQS between 1998 and 2000, which indicates Sacramento attained the 24-hour PM-10 NAAQS as of December 31, 2000.

Review of the annual standard for calendar years 1998-2000 reveals that Sacramento also attained the annual PM-10 NAAQS by December 31, 2000. No monitoring sites showed a violation of the annual standard in the three-year period from 1998 through 2000.

Based on quality-assured data meeting the requirements of 40 CFR part 50, Appendix K, we propose to find that the Bullhead City and Payson nonattainment areas in Arizona and the Sacramento and San Bernardino nonattainment areas in California have attained the PM-10 NAAQS by their applicable attainment date of December 31, 2000. Consistent with CAA section 188, the areas will remain moderate PM-10 nonattainment areas and avoid the additional planning requirements that apply to serious PM-10 nonattainment areas.

This proposed action should not be confused with a redesignation to attainment under CAA section 107(d)(3) because we have not yet approved a maintenance plan as required under section 175(A) of the CAA or determined that the areas have met the other CAA requirements for redesignation. The designation status in 40 CFR part 81 will remain moderate nonattainment for all these areas until such time as Arizona and California meet the CAA requirements for redesignations to attainment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this proposed action is also not subject to Executive Order 32111, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely makes a determination based on air quality data and does not impose any requirements. Accordingly, the Administrator certifies that this proposed 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. ). Because this proposed rule does not impose any additional enforceable duty, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This proposed rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely makes a determination based on air quality data and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Part 81, chapter I, title 40 of the Code of Federal Regulations is proposed to be amended as follows:

The use of “we,” “us,” or “our” in this document refers to EPA.

We are proposing to extend the deadline, from August 31, 2001, to December 31, 2001, for Louisiana to submit a State Implementation Plan (SIP) that qualifies for an extension pursuant to EPA's extension policy. In our May 9, 2001, proposed rulemaking, we based the August 31, 2001, submission deadline on a letter from the Governor of Louisiana to EPA, dated May 10, 2000, committing to submit, by that date, a SIP that meets the criteria of the extension policy.

In today's proposal, EPA specifically requests comments on a revised submission date of December 31, 2001. EPA has previously received comments on other aspects of its May 9, 2001, proposal, and will address those comments in its final action on the SIP submittal and attainment date extension. EPA is not reopening or requesting comment on any other aspect of the May 9, 2001, proposal.

In response to our May 9, 2001, proposed rulemaking, the Governor of Louisiana submitted a letter to EPA, dated June 7, 2001, requesting until December 31, 2001, to submit the transport extension SIP. To support the request for additional time, the Governor's letter references a June 1, 2001, comment letter submitted to EPA by Dale Givens, Secretary of the LDEQ. In his letter, Secretary Givens provides an extensive list of critical factors that have changed or were added to the SIP development process, thereby necessitating a change in the submittal date committed to by the Governor in his May 10, 2000, letter to EPA.

Secretary Givens' comment letter also clarifies that the Governor's August 31, 2001, commitment date was not driven by statute, rule, policy or any other legal requirement, but, rather, was selected based on discussions with EPA. This date was mutually determined by EPA and LDEQ to be, at the time, the most expeditious schedule practicable to prepare what was expected to be a relatively simple revision to the current attainment demonstration SIP. 1 The assumption at the time—based on the area's official design value, which was just a few parts per billion above the NAAQS—was that only a small additional reduction in ozone precursor emissions in the five-parish Baton Rouge ozone nonattainment area would be necessary to attain the one-hour ozone standard.

The factors Secretary Givens cites as a basis for extending the submittal date include the following:

EPA believes that the State has made a compelling argument that the SIP development process has been as expeditious as practicable and that an extension until December 31, 2001, is warranted in order to develop a technically defensible and approvable submittal. 3

As stated in our May 9, 2001, proposed rulemaking, a local task force comprised of stakeholders has been working closely with the LDEQ to develop a submittal that meets the requirements of the extension policy. 4 Modeling efforts are nearing completion, and the State has begun the rulemaking process for several of the underlying regulations. All required rules are expected to be proposed by August 2001. The LDEQ plans to propose the entire SIP for public comment in October 2001. 5

As discussed in our May 9, 2001, proposed rule, we do not intend to take final action on the reclassification prior to allowing Louisiana an opportunity to qualify for an attainment date extension under the extension policy.

Therefore, if Louisiana submits, by December 31, 2001, a SIP that qualifies for an extension pursuant to the extension policy, we will propose to approve the State's submittal. In the same notice, we will propose to extend the attainment date for the Baton Rouge area to an appropriate expeditious date.

We will take final action on the new attainment date at the time we take final action on the submittal. If we act to approve the attainment demonstration and extend the attainment date, the Baton Rouge area would no longer be subject to reclassification or “bump-up” for failure to attain by its original attainment date under section 181(b)(2) of the CAA. 6 However, if Louisiana fails submit, by December 31, 2001, a plan that meets the requirements of the extension policy, we will finalize our May 9, 2001, proposed finding of failure to attain, and the Baton Rouge area will be reclassified to severe ozone nonattainment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed 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. ). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this proposed rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This proposed rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The proposed rule does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings.” This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

For additional information, see the Direct Final Notice of Deletion which is located in the Rules section of this Federal Register .

Information Repositories: Repositories have been established to provide detailed information concerning this decision at the following addresses: U.S. EPA Region 7 Records Center, 901 N. 5th Street, Kansas City, Kansas 66101 or the Keokuk Public Library, 210 N. 5th Street, Keokuk, Iowa 52632.

This is a summary of the Commission's document regarding CC Docket No. 96-98, released on July 11, 2001. The complete text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Courtyard Level, 445 12th Street, S.W., Washington, DC, and also may be purchased from the Commission's copy contractor, International Transcription Services (ITS, Inc.), CY—B400, 445 12th Street, S.W., Washington, DC. It is also available on the Commission's website at http://www.fcc.gov.

1. On August 8, 1996, the Commission released the Local Competition First Report and Order (61 FR 45476) as required by the Telecommunications Act of 1996. Many of the parties filed petitions for reconsideration of that Order and there has been significant litigation concerning many of the rules adopted in that Order. At this time, only certain rules concerning combination and pricing of unbundled network elements remain in dispute. Now that the issues in dispute have narrowed, the Commission will address petitions for reconsideration relating to rules that are not the subject of pending litigation. Since many of these petitions were filed several years ago, the passage of time and intervening developments may have rendered the record developed by those petitions stale. Moreover, some issues raised in petition for reconsideration may have become moot or irrelevant in light of intervening events.

2. For these reasons, the Commission requests that parties that filed petitions for reconsideration in 1996 addressing issues that are not subject to pending litigation now file a supplemental notice indicating which of such issues they still wish to be reconsidered. In addition, parties may refresh the record with any new information or arguments they believe to be relevant to deciding such issues. To the extent parties do not indicate an intent to pursue their respective petitions for reconsideration, the petitions will be deemed withdrawn and will be dismissed. The refreshed record will enable the Commission to undertake appropriate reconsideration of its local competition rules.

Section 4(b)(3)(B) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq. ), requires that, for any petition to revise the List of Threatened and Endangered Species containing substantial scientific and commercial information that listing may be warranted, we make a finding within 12 months of the date of the receipt of the petition on whether the petitioned actions is: (a) not warranted, (b) warranted, or (c) warranted but precluded from immediate proposal by other higher priority efforts to revise the List of Threatened and Endangered Species. Section 4(b)(3)(C) requires that petitions for which requested action is found to be warranted but precluded should be treated as though resubmitted on the date of such finding, i.e., requiring a subsequent finding to be made within 12 months. Such 12-month findings are to be published promptly in the Federal Register .

Section 4(b) of the Act states that we may make warranted but precluded findings only if we can demonstrate that: (1) An immediate proposed rule is precluded by other pending actions, and (2) expeditious progress is being made on other listing actions. Due to the large amount of litigation over critical habitat, we are working on numerous court orders and settlement agreements. Complying with these orders and settlement agreements will consume nearly all or all of our listing budget for fiscal year 2001. Any funding we may have available for discretionary listing actions will likely be allocated for emergency listings only. However, we can continue to place species on the candidate species list, as that work activity is funded separately from our listing program.

On February 9, 1998, we received a petition, dated February 2, 1998, from Robin Silver, Kieran Suckling, and David Noah Greenwald of the Southwest Center for Biological Diversity on behalf of 22 groups to list the western yellow-billed cuckoo ( Coccyzus americanus occidentalis ). The 22 groups are the Maricopa Audubon Society, Tucson Audubon Society, Huachuca Audubon Society, White Mountain Audubon Society, the White Mountain Conservation League, Wildlife Damage Review, Sky Island Alliance, the San Pedro 100, the Zane Grey Chapter of Trout Unlimited, T & E Inc., the Biodiversity Legal Foundation, the Environmental Protection Information Center, the Sierra Nevada Alliance, the Wetlands Action Network, Rangewatch, the Oregon Natural Desert Association, the Oregon Natural Resources Center, the Klamath-Siskiyou Wildlands Center, the Southern Utah Wilderness Alliance, the Wild Utah Forest Campaign, Friends of Nevada Wilderness, and the Toiyabe Chapter of the Sierra Club. The petitioners stated that they believe the yellow-billed cuckoo “is endangered in a significant portion of its range (i.e., the western United States).” The petitioners also stated they “believe this range of endangerment is coterminous with a valid subspecies, the western yellow-billed cuckoo ( Coccyzus americanus occidentalis ),” and that they would concur with a decision to list this taxon. Petitioners also requested that critical habitat be designated for the yellow-billed cuckoo concurrent with the listing, pursuant to 50 CFR 424.12 and the Administrative Procedures Act (5 U.S.C. 553). Included in the petition was supporting information on the species relating to taxonomy, ecology, adequacy of existing regulatory mechanisms, historic and present distribution, current status, and threats in the western United States.

On February 17, 2000, we announced a 90-day petition finding in the Federal Register (65 FR 8104) concluding that the petition presented substantial scientific or commercial information to indicate that the listing of the western yellow-billed cuckoo may be warranted. In that finding, we also found that the petition did not present sufficient information to indicate that listing of the species as a whole may be warranted. In addition, the finding stated that the petition presented substantial information that led us to conclude that further investigation, through a status review, was required to determine the taxonomic validity of the western subspecies, and to determine if listing the western yellow-billed cuckoo as a distinct population segment (DPS) may be warranted.

Ridgway (1887) separated the yellow-billed cuckoo into eastern and western subspecies, based on western birds being “larger, with proportionately larger and stouter bill”. Wetmore (1968) added that western birds are slightly more gray above, and eastern birds more brown. Ridgway assigned birds from the area north and west from extreme west Texas to the Pacific Coast to the subspecies Coccyzus americanus occidentalis, and other cuckoos in North America to Coccyzus americanus americanus. Ridgway's western subspecies included birds from the Great Basin portions of Colorado and Wyoming, west and north to the Pacific Coast and southwestern British Columbia. The two subspecies were generally included in ornithological treatments through the 1960s (e.g., American Ornithologists Union (AOU) 1957; Oberholser and Kincaid 1974).

Many ornithologists, however, have questioned the separation of the species into two subspecies (Bent 1940; Monson and Phillips 1981; Van Tyne and Sutton 1937; Swarth 1929; Todd and Carriker 1922), citing the small magnitude and inconsistency of differences between eastern and western yellow-billed cuckoos, and the broad overlap in the size of eastern and western individuals. During this time, though, there was no systematic analysis of geographic variation to determine if there was an eastern and western yellow-billed cuckoo subspecies. Since 1983, AOU checklists (the recognized authority for taxonomy of North American birds) have not used subspecies names for any of the bird species in the checklist since the validity of many described avian subspecies needs to be evaluated, as does the potential for unrecognized subspecies (AOU 1983, 1998). The most recent checklist (AOU 1998) refers readers to the 1957 checklist for subspecies taxonomy, while noting the questionable validity of many subspecies. The AOU Checklist Committee (which makes taxonomic decisions for North American birds) has begun the process of reviewing the taxonomic status of subspecies for the North American families of birds, a task which is expected to take at least several years (R. Banks, chair of AOU Classification and Nomenclature Committee (North America), pers. comm., 1999).

Yellow-billed cuckoo taxonomy was first reviewed in the late 1980s, when we requested that Dr. Banks, an avian taxonomist, evaluate the validity of the cuckoo subspecies. This request was in response to the 1986 petition to list the yellow-billed cuckoo in the States of California, Washington, Oregon, Idaho, and Nevada. Banks compared three morphological characteristics (bill length, depth of upper mandible, and wing length) of almost 700 adult specimens of yellow-billed cuckoos and visually examined the colors of specimens. He found: (1) no pattern of geographic variation in color; (2) substantial overlap between eastern and western birds in wing length, bill length and mandible depth; and (3) no significant differences for these three characteristics. He concluded that the data did not justify the separation into eastern and western subspecies (Banks 1988). Subsequently, statistical errors were discovered in Bank's study (Spiller 1988), and a re-analysis of the same data indicated statistically significant differences between eastern and western yellow-billed cuckoos (p<0.001) for the three characteristics measured by Banks. Banks published a correction to his earlier paper (Banks 1990), acknowledging the computational error, but stating that the “statistical difference cannot be equated to a biological or practical difference.” In support of this, he cited the small differences between mean measurements, the large degree of overlap between eastern and western birds in the ranges of measurements for the three characteristics he measured, and the sensitivity of the statistical procedure to detect very small differences as “significant,” given the large sample sizes. Banks concluded that his fundamental finding remained unchanged, that is, separation into subspecies was not warranted by the morphological data, and that all yellow-billed cuckoos in North America should be classified simply as Coccyzus americanus.

Banks provided his data to two avian ecologists (Franzreb and Laymon 1993) who analyzed the same data set, supplemented by measurements for a fourth characteristic (tail length), and from a small number of additional specimens of western birds. Franzreb and Laymon (1993) noted statistical errors by Banks (1988), finding that western birds are larger than eastern birds, and that one could separate a majority of western yellow-billed cuckoos from eastern yellow-billed cuckoos using discriminant analysis. Franzreb and Laymon (1993) also considered behavioral and ecological differences between western and eastern birds, and found evidence of differences in the timing of migration and breeding. They concluded that: (1) “the recognition of subspecies on the basis of measurements of existing specimens is equivocal”; (2) study of geographical variation in vocalizations, bill color, and genetics was warranted; (3) the two subspecies should be retained pending the above studies; and (4) “because the western yellow-billed cuckoo is so critically endangered * * * changes in its classification should be made only after the best possible study.” Banks did not respond in print to their paper, but has stated that his conclusion remains unchanged (R. Banks, pers. comm., 1999).

The yellow-billed cuckoo is a member of the avian family Cuculidae and order Cuculiformes. The approximate 128 members of Cuculidae share the common feature of a zygodactyl foot, in which two toes point forwards and two toes point backwards. Most species have moderate to heavy bills, somewhat elongated bodies, a ring of colored bare skin around the eye, and loose plumage. Six species of Cuculidae breed in the United States, two species of which breed west of the Continental Divide, the yellow-billed cuckoo and the greater roadrunner.

The yellow-billed cuckoo is a medium-sized bird of about 30 centimeters (cm) (12 inches (in.)) in length, and weighing about 60 grams (2 ounces). The species has a slender, long-tailed profile, with a fairly stout and slightly down-curved bill which is blue-black with yellow on the base of the lower mandible. Plumage is grayish-brown above and white below, with red primary flight feathers. The tail feathers are boldly patterned with black and white below. The legs are short and bluish-gray, and adults have a narrow, yellow eye ring. Juveniles resemble adults, except the tail patterning is less distinct, and the lower bill may have little or no yellow.

Mated males have a distinctive “kowlp” call which is a loud, nonmusical series of notes about 2-3 seconds long which slows down and slurs toward the end. Unmated males use a separate call which is an indeterminate series of soft notes “coo-coo-coo-coo.” Both members of a pair may give the “knocker” call, which is a harsh, rattled, series of notes (Hughes 1999).

Western yellow-billed cuckoos breed in large blocks of riparian habitats (particularly woodlands with cottonwoods and willows), while eastern yellow-billed cuckoos breed in a wider range of habitats, including deciduous woodlands and parks (Ehrlich et al. 1988). Dense understory foliage appears to be an important factor in nest site selection, while cottonwood trees are an important foraging habitat in areas where the species has been studied in California (Laymon et al. 1993). Clutch size is usually two or three eggs, and development of the young are very rapid, with a breeding cycle of 17 days from egg-laying to fledging of young. Although yellow-billed cuckoos usually raise their own young, they are facultative brood parasites, occasionally laying eggs in the nests of other yellow-billed cuckoos or of other bird species (Hughes 1997).

Western yellow-billed cuckoos appear to require large blocks of riparian habitat for nesting. Along the Sacramento River in California, nesting yellow-billed cuckoos occupied home ranges which included 10 hectares (ha) (25 acres (ac)) or more of riparian habitat (Gaines 1974; Laymon et al. 1993). Another study on the same river found riparian patches with yellow-billed cuckoo pairs to average 40 ha (99 ac) (Halterman 1991). Home ranges in the South Fork of the Kern River in California averaged about 17 ha (42 ac) (Laymon et al. 1993). Nesting densities ranging from 1 to 15 pairs per 40 ha (99 ac) were estimated in a New Mexico study (Howe 1986), and three plots in Arizona had densities ranging of 8.2, 19.8, and 26.5 pairs per 40 ha (99 ac) (Hughes 1999). Nesting west of the Continental Divide occurs almost exclusively close to water, and biologists have hypothesized that the species may be restricted to nesting in moist river bottoms in the west because of humidity requirements for successful hatching and rearing of young (Hamilton and Hamilton 1965; Rosenberg et al. 1991). Nesting peaks later (mid-June through August) than in most co-occurring bird species, and may be triggered by an abundance of the cicadas, katydids, caterpillars, or other large prey which form the bulk of the species' diet (Hamilton and Hamilton 1965; Rosenberg et al. 1982). The species is inconspicuous on its breeding range, except when calling to attract or to contact mates.

The breeding range of the yellow-billed cuckoo formerly included most of North America from southern Canada to the Greater Antilles and northern Mexico (AOU 1957, 1998). In recent years, the species' distribution in the west has contracted. The northern limit of breeding in the coastal States is now in Sacramento Valley, California, and the northern limit of breeding in the western interior States is southern Idaho (AOU 1998; Hughes 1999). East of the Continental Divide, the species breeds from southeastern Montana, the Dakotas, Minnesota, southern Ontario, southeastern Quebec and probably southern New Brunswick south to eastern Colorado, Texas, the Gulf coast, northeastern Mexico, the Florida Keys, the Greater Antilles and the northern Lesser Antilles (AOU 1957, 1998). The species overwinters from Columbia and Venezuela, south to northern Argentina (Ehrlich et al. 1992; AOU 1998). The extent to which yellow-billed cuckoos nesting in different regions of North America commingle during migration, or while overwintering, is unknown. Data provided by the U.S. Geological Survey-Biological Resources Division, Bird Banding Laboratory (BBL), from bird band returns to date is insufficient to determine migration or wintering patterns (BBL, in litt., 1998).

The available data, including that provided by the petitioners, suggest that the yellow-billed cuckoo's range and population numbers have declined substantially across much of the western United States over the past 50 years. Analysis of population trends is difficult because quantitative data, including historical population estimates, are generally lacking. However, historic and recent data are sufficient to allow an evaluation of changes in the species' range in the western United States. Rough extrapolations, which use observed densities of yellow-billed cuckoos and historic habitat distribution, indicate that western populations were once substantial (Service 1985). The following discussion is based on information provided by the petition and in our files, and focuses on western North America, the area for which the petition provides information.

Based on historic accounts, the species was widespread and locally common in California and Arizona, locally common in a few river reaches in New Mexico, common very locally in Oregon and Washington, generally local and uncommon in scattered drainages of the arid and semiarid portions of western Colorado, western Wyoming, Idaho, Nevada, and Utah, and probably uncommon and very local in British Columbia. Hughes (1999) summarizes the species' historic range and status in these areas, which are described in detail below.

In California prior to the 1930s, the species was widely distributed in suitable river bottom habitats, and was locally common (Grinnell and Miller 1944; Small 1994). Yellow-billed cuckoos nested primarily in coastal counties from San Diego County near the Mexico border to Sonoma County in the San Francisco Bay region, in the Central Valley from Kern County through Shasta County, and along the lower Colorado River (Grinnell and Miller 1944; Dawson 1923; Small 1994; Gaines and Laymon 1984). Yellow-billed cuckoos also bred locally elsewhere in the State, including in Inyo, San Bernardino, and Siskiyou counties (Grinnell and Miller 1944).

The early literature relating to the yellow-billed cuckoo in California has been summarized and evaluated by Gaines (1974), Gaines and Laymon (1984), and Hughes (1999). Collectively they report dozens of locations where the species was historically reported and/or collected, sometimes in apparent abundance, but not subsequently found. Laymon and Halterman (1987b) estimated that in California the species' range was about 30 percent of its historical extent. Hughes (1999) provides an estimate of the California breeding population during the late 19th century of 15,000 pairs of breeding birds. Gaines (1974) believed that pre-development yellow-billed cuckoo populations in California were even greater than implied by the early literature, due to the species' inconspicious behavior and the fact that large tracts of floodplain riparian habitat had already been removed for development before the first records and accounts of the species began appearing in literature. Most modern investigators believe that a significant decline of the yellow-billed cuckoo in California occurred following the start of the major era of development beginning about the mid-1800s (Gaines and Laymon 1984; Laymon and Halterman 1987a, 1987b; Launer 1990).

The species was listed by the State of California as threatened in 1971, and was reclassified as endangered in 1987. Based on a 1986-87 Statewide survey, only three areas in the State support more than about five breeding pairs on a regular basis: The Sacramento River roughly between Colusa and Red Bluff; the South Fork of the Kern River upstream of Lake Isabella; and the lower Colorado River (Laymon and Halterman 1987a, b). Laymon and Halterman (1987a) estimated 31-42 breeding pairs in the State, a decline of 66-81 percent from a 1977 survey (Gaines 1974; Gaines and Laymon 1984). Along the lower Colorado River, on the California-Arizona border, Laymon and Halterman (1987a) estimated an 80-90 percent decline by 1986 from an estimated 180-240 pairs in 1976-1977, while Rosenberg et al. (1991) estimated a decline of 93 percent over this period, using an initial estimate of 242 pairs in 1976-1977. These declines coincided with habitat losses resulting from high water levels of long duration in 1983-1984 and 1986 (Laymon and Halterman 1987b; Rosenberg et al. 1991). Final results from a Service-funded 1999 State-wide survey indicate that yellow-billed cuckoo numbers in the Sacramento Valley and along the Kern River are comparable to numbers from the 1980s, while only two pairs were located on the California side of the Colorado River. No pairs were found in the part of the State west of the Colorado River and south of the Kern River (M. Halterman, Kern River Research Center, pers comm., 2001; Halterman et al. 2001). Although other biologists detected cuckoos at Prado Flood Control Basin, a pair on the Amargosa River, and a single cuckoo at the Mojave River near Victorville (Halterman et al. , 2001), the lack of detections during the 1999 survey in these and other southern California areas where comparable previous surveys found cuckoos indicates population declines since the 1970s.

An example of the species' decline in California is found in the San Joaquin Valley. Yellow-billed cuckoo have been recorded from every county in the San Joaquin Valley region except Kings County, and were locally common as a breeding bird at least in San Joaquin, Kern, Fresno, and Stanislaus counties (Gaines and Laymon 1984). Despite surveys for the species (Laymon and Halterman 1987a), there have been few records from the San Joaquin Valley since the 1960s. If the species still breeds there, the number of breeding pairs is very small (Gaines and Laymon 1984; Laymon and Halterman 1987a).

In the Pacific Northwest, the species was formerly fairly common locally in willow bottoms along Willamette and Columbia Rivers in Oregon, and in the Puget Sound lowlands and along the lower Columbia River in Washington (Marshall 1996; Roberson 1980; Jewett et al. 1953; Gabrielson and Jewett, 1940). The species was also found locally in southeast British Columbia (Hughes 1999), but the available data are not adequate to determine historic abundance. The species was rare east of the Cascade Mountains in these states and provinces. The last confirmed breeding records were in the 1930s in Washington, and in the 1940s in Oregon. It may now be extirpated from Washington. The species is ranked as critically imperiled as a breeding bird in Washington and is under review by the Washington Department of Fish and Wildlife for State listing (Washington Natural Heritage Program 1997).

In Oregon, four yellow-billed cuckoo sightings were made west of the Cascade Mountains between 1970 and 1994. At least 20 records occur east of the Cascades (Gilligan 1994), and a few pairs may nest very locally in the eastern part of the State. A 1988 survey in eastern Oregon and Klamath County located no birds, but identified potential breeding habitat along the lower Owyhee River (Littlefield 1988). Most recent records were recorded in May and June of 1999 (Johnson et. al. 2001), and a single yellow-billed cuckoo was sighted during the breeding season (June 26-27, 1999) along Bonita Road in Malheur County. It is believed that this species has been regularly sighted (without confirmed nesting) at the Malheur National Wildlife Refuge (B. Alterman, pers. comm., 2001).

The species occurred in southwest British Columbia (Victoria, Kamloops, Chilliwack) (Bent 1940), but was apparently never common; the last confirmed breeding was in 1920s. The species has been recorded twice in British Columbia since the 1920s (Siddle 1992), and is considered extirpated (British Columbia Conservation Data Centre 1999; Hughes 1999).

Arizona probably contains the largest remaining yellow-billed cuckoo population among States west of the Rocky Mountains. The species was historically widespread and locally common (Phillips et al. 1964; Monson and Phillips 1981; Groschupf 1987). One hundred sixty-eight yellow-billed cuckoo pairs and 80 single birds were located in Arizona in 1999, based on preliminary results from a State-wide survey which covered 427 km (265 mi) of river and creek bottoms (R. Magill, pers. comm., 1999). Based on these results, it is evident that yellow-billed cuckoo numbers in 1999 are substantially less than some previous estimates for Arizona, including a 1976 estimate of 846 pairs for the lower Colorado River and five major tributaries (Groschupf 1987). Losses of riparian habitats from historic levels have been substantial in Arizona (Noss et al. 1995; Ohmart 1994; Rosenberg et al. 1991). Losses have been greatest at lower elevations (below about 900 m (3,000 ft) elevation) along the Lower Colorado River and its major tributaries, which have been strongly affected by upstream dams, flow alterations, channel modification, and clearing of land for agriculture (Groschupf 1987). As habitat has declined, yellow-billed cuckoo numbers have likely declined, as has been documented for the lower Colorado River (Rosenberg et al. 1991), and described above for California. Following the high water levels of 1983-1984 and 1986, yellow-billed cuckoo numbers also declined by 70-75 percent on the Bill Williams River delta, which abuts the lower Colorado River (Rosenberg et al. 1991). Habitat has since recovered on the Bill Williams River delta, but yellow-billed cuckoo numbers remain low (M. Halterman, pers. comm., 1999). In some Arizona areas, such as the San Pedro Riparian National Conservation Area along about 65 km (40 mi) of the upper San Pedro River, ongoing conservation efforts may improve habitat conditions for the species. The species is considered a Species of Concern by the Arizona Game and Fish Department, a designation which does not provide protection to the species (T. Corman, Arizona Game and Fish Department, pers. comm., 1999).

In Colorado, west of the Continental Divide, the species was probably never common (Bailey and Niedrach 1965; Kingery 1998), and is now extremely rare (Kingery 1998). The yellow-billed cuckoo is an uncommon summer resident of Colorado. According to the Colorado Breeding Atlas (Kingery 1998), the general status of the yellow-billed cuckoo in Colorado is that it is nearly extirpated, with once common eastern populations becoming uncommon to rare. Only one confirmed nesting observation occurred along the Yampa River near Hayden during the Breeding Bird Atlas surveys conducted from 1987-1994. Other confirmed nesting records (mid 1980s) have been associated with outbreaks of caterpillar infestations in box elders ( Acer negundo ) in the Four Corners Region/Durango area. However, over recent years , the use of insecticides and the removal of box elders has reduced the outbreaks of insect infestations, resulting in fewer occurrences of yellow-billed cuckoo in the area (Dr. Albert Spencer in Marylin Colyer, in litt., 2001).

National Park Service (NPS) surveys in southwest Colorado, from 1988 through 1995 for the Colorado Bird Breeding Atlas, found no records of yellow-billed cuckoo. Park staff also conducted extensive surveys of the Mancos River in the park six times during the past 12 years and adjacent to Yucca House National Monument throughout 2000 with no reports of yellow-billed cuckoos (Marylin Colyer, in litt. , 2001). Few sightings of the yellow-billed cuckoo have occurred in western Colorado along the Colorado River near Grand Junction (Terry Ireland, Service, pers. comm., 2001). In 1998, biologists surveyed 387 km (242 mi) of lowland river riparian habitat along six rivers in west-central Colorado for yellow-billed cuckoos, finding one individual bird (Dexter 1998).

There is very limited data for the area west of the Continental Divide in Montana. Three specimens of the yellow-billed cuckoo have been collected since the early 1960s, and there are few recorded sightings of the yellow-billed cuckoo since the early 1900s (Saunders 1921). Local records for the species around the Flathead River area are scarce and there have been a few records which indicate that they do occur in this area, but no confirmed breeding information exists (S. Lenard, Montana Audubon, pers. comm., 2001). Yellow-billed cuckoos may be seen locally in the southern portion of the State along the larger stream corridors that run from Montana into northeastern Wyoming (L. Nordstrom, Service, pers. comm., 2001).

In Idaho, the species was considered a rare and local summer resident (Burleigh 1972). In northern and central Idaho, there have only been four records of yellow-billed cuckoo over the last century (Taylor 2000). The most recent record for this area comes from the South Fork of the Snake River in 1992 (Stephens and Sturts 1997). In southwestern Idaho, the yellow-billed cuckoo has been considered a rare, sometimes erratic, visitor and breeder in the Snake River valley. Numerous sightings have been recorded in the southwestern part of the State during the past 25 years. The yellow-billed cuckoo appears to be hanging on precariously in Idaho and could easily become extirpated from the State in the near future. The available information is inadequate to judge population or distributional trends, and the breeding population in Idaho is likely limited to a few breeding pairs, at most.

The historic status of the yellow-billed cuckoo in Nevada is poorly documented, although there is evidence it was nesting along the lower Truckee and Carson Rivers and in southern Nevada along the Colorado and Virgin Rivers (Linsdale 1951; Neel 1999). Surveys using call-playback techniques were done in the early 1970s along the Truckee, Carson, and Walker Rivers. The surveys of the six remaining habitats able to support yellow-billed cuckoos, as described by Gaines (1974), resulted in no birds being heard or seen (Oakleaf 1974). The most recent documentation of the yellow-billed cuckoo nesting in Nevada was a pair at Beaver Dam Wash, Lincoln County in 1979. Since 1990, there have been only sporadic sightings of single birds throughout the State (Neel 1999). The Nevada Division of Wildlife (NDW) (2001) conducted surveys in 2000 in southern Nevada and documented 19 yellow-billed cuckoo, comprising 4 pairs and 11 unpaired birds with no nests being found. An estimate by the NDW put the summer population of yellow-billed cuckoo between 20-30 birds State-wide.

Suitable habitat for the yellow-billed cuckoo is very limited in Nevada, with most areas of cottonwood riparian forests being fragmented (NDW, in litt., 2001). NPS studies from Great Basin National Park (NPS, in litt., 2001) in the South Snake Mountain Range determined that of the 190 ha (469 ac) of existing riparian habitat only 3 ha (8 ac) was suitable for supporting yellow-billed cuckoo. Most of the suitable habitat along the Truckee, Carson, and Walker Rivers has been modified or destroyed (NDW, in litt., 1985, 1990).

The decline of the yellow-billed cuckoo in Clark County, Nevada has been attributed to the reduction or degradation of riparian habitat, river channelization, livestock grazing, use of pesticides, non-native plant encroachment (tamarisk), and brown-headed cowbird parasitism (Clark County 2000). The State of Nevada has listed the yellow-billed cuckoo as State Rank S1 Nevada State Protected. This means that the species is protected in Nevada and is considered critically imperiled due to extreme rarity, imminent threats, and/or biological factors. Under such a designation, the protected species may not be killed, captured, shot at, trapped, wounded, possessed, collected, seined, or netted, nor can a person attempt to do any of these activities.

In Wyoming, population status and trends of yellow-billed cuckoos are unknown (Wyoming Game and Fish Department 1999). Remaining suitable cottonwood riparian habitat for this species is very limited in distribution in the State and is not adequately surveyed. Within the DPS identified in this finding, breeding activity is considered unconfirmed but observations and other anecdotal evidence suggests that breeding may occur within the Green River Basin and along the Snake River within the State (P. Deibert, Service, pers. comm., 2001).

In New Mexico, the species was historically rare State-wide, but common in riparian areas along the Pecos and Rio Grande Rivers, as well as uncommon to common locally along portions of the Gila, San Francisco and San Juan Rivers (Hubbard 1978; Bailey 1928). Current information is inadequate to judge trends, but the species was fairly common in the mid-1980s along the Rio Grande River between Albuquerque and Elephant Butte Reservoir, and along the Pecos River in southeastern New Mexico. Numbers may have increased there in response to tamarisk ( Tamarix species) colonization of riparian areas formerly devoid of riparian vegetation (Howe 1986). A review on the status of the species in New Mexico concluded that the species would likely experience future declines in the State due to loss of riparian woodlands (Howe 1986). Riparian habitat degradation and/or loss of cottonwood regeneration are likely occurring in some areas. Along the Rio Grande, water and flood control projects have altered flow regimes and river dynamics, inhibiting regeneration of cottonwood-willow riparian habitats. Elsewhere in the State, grazing also contributes to degradation and loss of riparian habitats. The future degradation and loss of such riparian vegetation would limit the amount of habitat available for the cuckoo (B. Howe, Service, pers. comm., 1999).

The portion of Texas west of the Pecos River has been identified as within the range of the historic western subspecies (Oberholser and Kincaid 1974), but other authors consider birds from this area most similar to eastern yellow-billed cuckoos (Hughes 1999). The species still occurs in this area, but its conservation status is unknown (Groschupf 1987). Population reports of the yellow-billed cuckoo in the trans-Pecos area of western Texas near Big Bend National Park indicate that the area supports scattered populations of yellow-billed cuckoo (Wauer 1971). These populations tend to be associated with areas of springs and developed wells or earthen ponds supporting mesic vegetation such as cottonwood and willow. The bird checklist of Guadalupe Mountains National Park near Beaumont Texas on the New Mexico border lists the yellow-billed cuckoo as a rare summer and fall breeder. Yellow-billed cuckoo population trends from 1966 to 1998 for the entire State of Texas are showing a decline (BBL 1999; Service 1989). Yellow-billed cuckoo call studies from the University of Texas at El Paso, conducted from 1988 to 1998, noticed a significant decline in response calls over numerous sites in southern New Mexico and western Texas. Average response percentages went from 30 percent in 1988 to 5 percent in 1998. The study concluded that based on the results of the surveys the yellow-billed cuckoo is a rare and highly vulnerable species in the Rio Grande Valley of Southern New Mexico and extreme west Texas (J. Sproul, University of Texas-El Paso, in litt., 2000). The Texas Department of Parks and Wildlife (TDPW) currently does not separate the eastern and western populations of the yellow-billed cuckoo and identifies the species as globally abundant and State secure since the State ranking was last revised in 1994. However, subsequent publications by the TDPW, suggest the species is becoming increasingly rare and declining due to urban development and reduction of habitat (Shakelford and Lockwood 2000). Peterson and Zimmer (1998) reported that the yellow-billed cuckoo may be declining due to habitat destruction in El Paso County. The species is considered to be widespread and uncommon to common in central and eastern Texas (Oberholser and Kincaid 1974; Rappole and Blacklock 1994).

In Utah, the species was historically uncommon to rare along river bottoms. There are at least two recent breeding records (Ouray National Wildlife Refuge on the Green River in 1992; and the Matheson Wetland Preserve near Moab in 1994, L. Romin, Service, pers. comm., 2000), and reports from at least five other areas where breeding has been suspected (E. Owens, Service, pers. comm., 1998). Recent avian surveys of riparian habitats within the historic range (the Salt Lake Valley) recorded three yellow-billed cuckoos in 7,000 survey hours (E. Owens, pers. comm., 1998). Threats to yellow-billed cuckoos and their habitat along the Green River in Utah include habitat loss and fragmentation from flooding and dewatering, encroachment by non-native tamarisk, grazing, and oil and gas development (Hanberg 2000 in Howe and Hanberg 2000). Management of flow regimes was identified as a major impact on habitat with extremely high flows removing habitat, and extended periods of low flows likely drying up yellow-billed cuckoo habitat, which could result in the loss of suitable habitat and invasion by tamarisk. Cattle grazing also was identified as a possible threat to yellow-billed cuckoo habitat by contributing to the loss of subcanopy vegetation and cottonwood regeneration by grazing and trampling. Another potential threat to yellow-billed cuckoo habitat was attributed to recreational impacts by river users ( e.g., use of cottonwood stands for campsites and “lunch spots”). The Utah Division of Wildlife Resources (1998) stated that the yellow-billed cuckoo is threatened by habitat loss from agricultural, water, road and urban development, and has declined significantly across its range.

In the United States east of the Rocky Mountains, the yellow-billed cuckoo is uncommon to common as a breeding bird. The species' habitat in this region, riparian and other broad-leaved woodlands (Ehrlich et al. 1988), occupy a significant area of the region (Service 1981). This is in sharp contrast to the west, where suitable habitat is limited to narrow and often widely separated riparian zones that occupy less than one percent of the western landscape (Service 1981; Knopf and Samson 1994).

Trend data based on detections by the Breeding Bird Survey (BBS) program (BBS 1999) indicate significant population declines between 1966 and 1996 in 12 of 29 eastern and central States; the average annual decline during this period was 1.9 percent. Most of these declines have occurred since 1980. The average number of detections of yellow-billed cuckoos increased in these 29 States for the interval from 1966 to 1979; however, the average number of detections decreased in all 29 States between 1980 and 1996. In 15 of these States, the decline between 1980 and 1996 is statistically significant. The average annual decline during this period was 2.8 percent. Trends vary widely between States, ranging from a decline of 15.8 percent (Connecticut, 1966-1996) to an increase of 17 percent (Nebraska, 1966-1979). Bird survey data are insufficient to evaluate population trends in regions west of the Continental Divide, but do provide data for two Service regions which span both sides of the Divide. The BBS data indicate declines of 2.7 percent in Region 2 (Arizona, Oklahoma, Texas, and New Mexico; 1980-1996), and 4.7 percent in Region 6 (Kansas, Nebraska, the Dakotas, Montana, Colorado, Utah, and Wyoming; 1980-1996).

The species breeds locally in Mexico, and is a widespread transient during migration (Howell and Webb 1995). The species has been recorded as a summer resident (presumably breeding) locally within several regions of Mexico, including the State of Baja California Sur; northwest Mexico from Sonora and Chihuahua south to Zacatecas; northeast Mexico on the Atlantic slope from Coahuila to Tamaulipas; and in the northern Yucatan Peninsula (Howell and Webb 1995). The species has been recorded as locally common in the state of Sonora (Russell and Monson 1998), but recent or quantitative information for that area is lacking (L. Hays, Service, pers. comm., 1999), as is data on the status of yellow-billed cuckoo populations in Mexico.

In 1986, we were petitioned to list the yellow-billed cuckoo as endangered in the States of California, Washington, Oregon, Idaho, and Nevada (Manolis et al. 1986). We received this petition from Dr. Tim Manolis, Western Field Ornithologists, and it was co-signed by the Animal Protection Institute, Defenders of Wildlife, Sacramento River Preservation Trust, Friends of the River, Planning and Conservation League, Davis Audubon Society, Sacramento Audubon Society, and the Sierra Club. We published a 90-day finding on January 21, 1987, in the Federal Register , stating that the petition presented substantial information indicating that the requested action may be warranted (52 FR 2239). In that finding, we acknowledged difficulties in defining a distinct, biologically defensible population of the western yellow-billed cuckoo for possible listing, and that there were gaps in available information as to its status in certain parts of its range. We published a 12-month finding on December 29, 1988, in the Federal Register (53 FR 52746), stating that the petitioned action was not warranted, finding that the petitioned area did not encompass either a distinct subspecies or a distinct population segment. The finding cited: (1) A study by Dr. Richard C. Banks (1988) which concluded that the morphological differences between eastern and western birds were too small to merit separate subspecies, and (2) a lack of distinctness for the petitioned “population,” noting that yellow-billed cuckoos nest along the Arizona-California border on the lower Colorado River. This indicated that the California population in that area is not distinct, and that if the species was listed per the petition, listed California birds could not be distinguished or separate from unlisted Arizona birds.

On February 9, 1998, we received a petition, dated February 2, 1998, from the Southwest Center for Biological Diversity on behalf of 22 groups. The petitioners requested us to list the yellow-billed cuckoo, stating that they believe the species “is endangered in a significant portion of its range (i.e., the western United States).” The petitioners also stated they “believe this range of endangerment is coterminous with a valid subspecies the western yellow-billed cuckoo ( Coccyzus americanus occidentalis ),” and that they would concur with a decision to list this taxon. Included in the petition was supporting information on the species relating to taxonomy, ecology, and adequacy of existing regulatory mechanisms, and historic and present distribution, current status, and threats in the western United States.

On February 17, 2000, we announced a 90-day petition finding (65 FR 8104) concluding that the petition presented substantial scientific or commercial information to indicate that the listing of the western yellow-billed cuckoo may be warranted. In that finding, we also found that the petition did not present sufficient information to indicate that listing of the species as a whole may be warranted. Our 90-day finding concluded that the available information did not resolve the issue of the validity of separating the yellow-billed cuckoo into two subspecies, but that further investigation, through a status review, was required to determine the taxonomic validity of the western subspecies, and to determine if listing the western yellow-billed cuckoo as a DPS may be warranted.

Since publication of the finding, we have gathered additional information, as a result of three actions: (1) We asked the AOU Committee on Classification and Nomenclature (Committee) to review the available information, particularly the published taxonomic studies of Banks (1988, 1990) and Franzreb and Laymon (1993), and to make a recommendation as to the validity of the yellow-billed cuckoo subspecies; (2) we funded an analysis of the geographic variation in population genetics throughout the species' United States range, conducted by Dr. Robert C. Fleischer, head of the Molecular Genetics Laboratory of the Smithsonian Institution; and (3) we solicited, in our 90-day finding, and during two open comment periods, information regarding the taxonomic status of the species, information on behavioral and ecological differences between eastern and western yellow-billed cuckoos, and other information which might aid in differentiating population segments.

In a letter dated March 10, 2000, we requested the Committee's review of the taxonomic validity of the subspecies, and indicated that this would greatly assist us in preparing the 12-month finding, which would address the potential conservation needs of the species (Service, in litt., 2000). The Committee, consisting of six professional North American ornithologists, responded in a letter dated November 17, 2000. They agreed with Dr. Bank's original 1988 conclusion that the yellow-billed cuckoo should be considered monotypic, that is, the named western form C. a. occidentalis is not a recognizably distinct subspecies. The Committee went on to say that they believe that the differences between the western populations and those in the rest of the range of the species are so small and the degree of overlap so great as to preclude separation at any level compatible with recognition of a subspecies (Committee, in litt., 2000).

On January 14, 2000, the Service and United States Geological Service (USGS) solicited proposals via a market survey, for a genetic analysis throughout the species breeding range in the United States and Mexico (USGS, in litt., 2000). We wanted to determine if a valid subspecies or DPS exists for the yellow-billed cuckoo, and for which a listing proposal could be supported under the Act. From a total of five proposals received, we selected and funded a proposal submitted by Dr. Robert Fleischer. We received the final genetics study prepared by Dr. Fleischer on April 24, 2001. In the report, Dr. Fleischer concluded from his analysis of two mitochondrial genes (ATPase 8 and the control region) sequenced from 66 yellow-billed cuckoos samples across the continental United States and Mexico, that no valid subspecies exists (R. Fleischer, in litt., 2001).

On June 5, 2001, we announced in the Federal Register (66 FR 30148), the Notice of Availability of Dr. Fleischer's report, reopened the comment period until June 20, 2001, and sent the report to six professionals in the field of population genetics, or knowledgeable of the life history and distribution of the yellow-billed cuckoo in North America for peer review. The individuals and institutions which were asked to review the study included: Dr. George Barrowclough of the American Museum of Natural History, New York, NY; Dr. Susan Haig of the USGS Forest and Rangeland Ecosystem Science Center; Dr. Eben Paxton of the USGS Colorado Plateau Field Station; Dr. Allen Barker of the Royal Ontario Museum, Ontario, Canada; Dr. Robert Zink, University of Minnesota; and Dr. Oliver Ryder of the Center for Reproduction of Endangered Species, San Diego CA. We received three responses to the six inquiries for review within the comment period. These responses were from Dr. George Barrowclough; Dr. Susan Haig; and Dr. Oliver Ryder.

During this comment period, we received additional review of the study from individuals in the field of population genetics. These individuals included: Dr. Peter Stacey of the University of New Mexico; Dr. Leo Joseph of the Academy of Natural Sciences Philadelphia, Pennsylvania; Dr. Phil Hedrick of Arizona State University; and Dr. Martin Taylor of the Center for Biological Diversity. We also received comments from the Wyoming Department of Game and Fish. All three of the peer reviewers, and the five reviewers sending additional comments, acknowledged Dr. Fleischer's determination from his study that there was a general lack of differentiation between the eastern and western populations of yellow-billed cuckoo. However, three individuals concluded that there was evidence which suggested that the yellow-billed cuckoo has undergone a recent range expansion and appears to have separated from each other in the relatively recent past. All of the reviews, except that of Dr. George Barrowclough, Dr. Susan Haig, and Wyoming Department of Game and Fish, stated that the use of mitochondrial DNA (mtDNA) sequences for markers would not necessarily show more recent diversions of populations since mtDNA evolve more slowly, and that perhaps other genetic markers would.

Since February 17, 2000, when the first open comment period was announced for the 90-day finding on the petition, we have received information from the public as a result of a mass mailing to over 2,500 individuals including Federal, State and local agencies and Tribes throughout North America. This list was partially created from the 45th edition of the Conservation Directory published annually by the National Wildlife Federation, and The Flock (a biennial membership directory for several North American ornithological societies; The Association of Field Ornithologists, The Waterbird Society, The Cooper Ornithological Society, The Raptor Research Foundation, and The Wilson Ornithological Society). We received over 100 responses from agencies and individuals in the form of letters, reports, survey information and e-mails. We also received additional information from Dr. Steve Laymon, one of the petitioners (S. Laymon, in. litt., 2000). This information consisted of additional biological, behavioral, and ecological data and professional correspondence on the yellow-billed cuckoo in support of the petition.

This 12-month finding is made in accordance with a court order which requires us to complete a finding by July 19, 2001 ( Southwest Center for Biological Diversity v. Badgley et al. (No. 00-1045-KI (D.OR.)).

Under the Act, we must consider for listing any species, subspecies, or, for vertebrates, any DPS of these taxa if there is sufficient information to indicate that such action may be warranted. To implement the measures prescribed by the Act and its Congressional guidance, we (along with the National Marine Fisheries Service) developed policy that addresses the recognition of DPSs for potential listing actions (61 FR 4722). The policy allows for more refined application of the Act that better reflects the biological needs of the taxon being considered and avoids the inclusion of entities that do not require its protective measures.

Under our DPS policy, we use two elements to assess whether a population segment under consideration for listing may be recognized as a DPS. The elements are: (1) The population segment's discreteness from the remainder of the taxon, and (2) the population segment's significance to the taxon to which it belongs. If we determine that a population segment being considered for listing represents a DPS, then the level of threat to the population segment is evaluated based on the five listing factors established by the Act to determine if listing it as either threatened or endangered is warranted.

Below, we address under our DPS policy the population segment of yellow-billed cuckoos that occurs in the western United States. The area for this DPS would be the area west of the crest of the Rocky Mountains. For the northern tier of Rocky Mountain States (Montana, Wyoming, northern and central Colorado), the crest coincides with the Continental Divide. In the southern Colorado and New Mexico the crest coincides with the eastern boundary of the Rio Grande drainage, including the Sangre de Cristo Mountains and excluding the drainage of the Pecos River. In west Texas the DPS boundary is the line of mountain ranges that form a southeastern extension of the Rocky Mountains to the Big Bend area of west Texas, and which form the western boundary of the Pecos River drainage.

A population segment of a vertebrate species may be considered discrete if it satisfies either one of the following two conditions: (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation; and (2) it is delimited by international governmental boundaries within which significant differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist.

The proposed DPS is based primarily on the first of the those two conditions, the marked separation from other populations. In addition, the northern and southern boundaries of the proposed DPS are the international boundaries with Canada and with Mexico. Although observed locally into British Columbia, Canada, in the early 1900s, the yellow-billed cuckoo is believed to have been extirpated from that province (AOU 1998; Hughes 1999).

The status of the yellow-billed cuckoo in Mexico is of great concern because most of its habitat is privately or communally owned, and severe degradation has occurred and continues to occur from grazing, wood cutting, recreation, and agricultural practices (Robert Mesta, Service, in litt., 2001). In addition, the yellow-billed cuckoo is not officially protected by the Mexican government, there are no Federal laws which require mitigation for loss or destruction of habitat, and there is little authority on private and communal lands to protect and manage for the yellow-billed cuckoo without the consent and cooperation of the landowners (R. Mesta, in litt., 2001). The DPS policy allows us to delimit the boundaries of a DPS by international boundaries where differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act. For the reasons stated above, we believe that these factors collectively play a role in delimiting the southern DPS boundary along the international border with Mexico from the Big Bend area of Texas westward to the Pacific Ocean.

We recognize that yellow-billed cuckoos within the described DPS are not wholly isolated from eastern yellow-billed cuckoo populations by the Rocky Mountain crest in west Texas, and to a lesser extent, further north. As discussed elsewhere, recent genetic data do not support separation of the yellow-billed cuckoo into eastern and western subspecies. Our DPS policy explicitly states that complete reproductive isolation is not required to recognize discreteness of a DPS, and DPS recognition can be appropriate where differences between populations are not sufficiently large to merit recognition of subspecies. Several lines of evidence contributed to our conclusion that the population of yellow-billed cuckoos west of the Rocky Mountain crest meets the discreteness criteria. This evidence is discussed below.

Yellow-billed cuckoos breed on both sides of the crest of the Rocky Mountains where suitable habitat occurs (Johnsgard 1986). Although the Rocky Mountains may not wholly prevent movement of yellow-billed cuckoos across the Rocky Mountain crest, the available information indicates that the Rocky Mountains substantially separate yellow-billed cuckoo populations occurring east and west of their crest. In this section, we relate the pattern of yellow-billed cuckoo distribution to geographic and other physical factors. Physical factors also interact with ecological factors, as altitudinal, topographic, and climatic factors influence the distribution of suitable habitat for nesting yellow-billed cuckoos. We address these interactions in the following section on ecological discreteness.

The eastern boundary of the western DPS spans a distance of about 2,400 kilometers (km) (1,500 miles (mi)), from the Montana-Canada border to the Texas-Mexico border in the Big Bend area. As will be detailed below, the degree of separation varies from north to south, but is substantial along more than 87 percent of the boundary, encompassing the DPS boundary from the Canada border to southern New Mexico. From the Canada border to the southern end of the Sangre de Cristo Mountains in northern New Mexico, a distance of about 1,700 km (1,050 mi), nesting birds and habitat in the western DPS are separated physically from nesting yellow-billed cuckoo populations in the east by an extensive high elevation zone of the Rocky Mountains, and/or by extensive areas where records of cuckoos, and cuckoo habitat, are very sparse. This barrier becomes less defined for the small area of northern Santa Fe County and western Mora and San Miguel counties. In this area, cuckoos in the western DPS breed along the Rio Grande near Los Alamos, while its assumed that eastern cuckoos nest as little as 100 km (60 mi) to the east along the Mora and upper Pecos Rivers (Hubbard 1978; Howe 1986). However, eastern cuckoo records in this area of proximity are few, and the areas of regular cuckoo occurrence (Howe 1986) remain separated by about 200 km (124 mi).

Just to the south of the Sangre de Cristo Mountains, the area of separation broadens again. From here to the New Mexico-Texas border is about 380 km (236 mi), and a broad band, about 160 km (100 miles) east-west, supports little cuckoo habitat and has very few cuckoo records. The lone exception is a small, isolated riparian area near Alamogordo, where cuckoos regularly occur (Howell 1986). This southern New Mexico zone of separation includes extensive highlands and mountains exceeding 1,800 meters (m) (6,000 feet (ft)) elevation, as well as the desert basin between the Rio Grande and Sacramento Mountains.

In west Texas and southern New Mexico, the physical separation is less marked, where the Rocky Mountains become a series of relatively low, isolated ranges within a high plateau, stretching between the Guadalupe Mountains on the Texas-New Mexico border to the Chisos Mountains in the Big Bend National Park, on the border with Mexico. In this region, the DPS boundary and the separation between eastern and western birds may be less complete than for the rest of the DPS. In our administrative finding for our 90-day finding for this petition (65 FR 8104), we noted the lack of a barrier between the Rio Grande and Gila River drainages in southern New Mexico. This problem is addressed by the DPS boundary, which includes both of these drainages, for reasons described above. The affinity of yellow-billed cuckoos from west Texas is still problematic, however, in that the Pecos River drainage is not strongly separated from the Rio Grande drainage upstream of the Big Bend, and yellow-billed cuckoo movement and interchange across the DPS boundary is expected to be greater in this region than along the rest of the DPS boundary. Such interchange and resulting diffusing of differences may be the reason why west Texas yellow-billed cuckoos have been reported to be morphologically aligned with both eastern yellow-billed cuckoo populations (Hughes 1999) and with western yellow-billed cuckoos. The majority of the available information, including timing of nesting, indicates that birds from Texas west of the Pecos River and from the Big Bend upstream exhibit greater similarity to western yellow-billed cuckoos (Wauer 1973; Oberholser and Kincaid 1974; Franzreb and Laymon 1993; J. Sproul, in litt., 2001). Considering these factors, along with the information on physical factors, we have included west Texas within the western DPS.

In the northern Rocky Mountains and northern Great Plains, from the Canada border south through Colorado, the yellow-billed cuckoo is “extremely rare and local” as a breeding bird (Hughes 1999). While the species breeds locally in southeast Montana, southern Idaho, northeast and southwest Wyoming, west Colorado, and Utah (Hughes 1999), it is quite rare or absent within the higher Rocky Mountains. An examination of the distributional records for the Rocky Mountain region indicates that within this area of few yellow-billed cuckoos, the species is even more scarce at elevations above approximately 2,000 m (6,600 ft). Most sources describe the species' range as extending up to this elevation (often described as occurring in the Sonoran Life Zones in older works) (Bailey 1928; Bailey and Niedrach 1965; Phillips et. al. 1964; Johnsgard 1986; Corman and McGill 2000; Hanberg 2000; M. Long, Service, pers. comm., 2001).

Within western Montana and southern Wyoming, the Rocky Mountain crest is less marked. In western Montana, the unoccupied region includes the area west of the Continental Divide, and extends into the panhandle of northern Idaho. The high elevation zone in western Montana narrows to a width of 80 km (50 mi) and sometimes less, where deep river valleys of the Columbia River drainage cut through the high mountains. However, the scarcity of records from this region indicates that nesting west of the Continental Divide in Montana is at most very limited and sporadic (Hughes 1999; P. Hendricks, Montana Natural Heritage Program, in litt., 2001), and the region of effective separation in Montana may be as wide as 800 km (500 mi) (S. Laymon, in. litt., 2000). Coupled with the rarity of yellow-billed cuckoos in adjacent areas to the west and east, the available information indicates that the Rocky Mountain region in Montana and northern Idaho forms a wide break between yellow-billed cuckoo populations to the east and west.

Suitable habitat in Wyoming is limited to Park, Fremont, western Hot Springs, and central and eastern Sweetwater counties. However, there is no data which suggests these areas are occupied by yellow-billed cuckoos (P. Deibert, pers. comm., 2001). In southern Wyoming, the crest of the Rocky Mountains dips to near 2,300 m (7,500 ft) to the southeast of the Wind River Range. In this area, the Great Divide Basin forms a high, internal basin which separates the Snake River drainage from the Missouri River drainage. This basin, while not a physical barrier topographically, is a high desert lacking in yellow-billed cuckoo habitat (P. Deibert, pers. comm., 2001; T. Collins, Wyoming Game and Fish Department, pers. comm., 2001). The basin consists mostly of rolling plains, extensive playas and dune fields that receives 2.25 cm (0.9 in.) of precipitation annually (Reiners and Thurston 1996). Although this lower area may be less of a physical barrier to birds, reported yellow-billed cuckoo sites to the east and west in this area are separated by about 240 km (150 mi) of unsuitable habitat, as is true for the rest of the Rocky Mountains' crest from the Montana to Colorado border (Reiners and Thurston 1996; Wyoming Game and Fish, in litt., 2001). Therefore, we find that the appropriate DPS boundary is that which encompasses the Snake River basin, as it follows the southern and western edge of the Great Divide Basin.

In Colorado, the band of high-elevation is over 150 km (100 mi) wide along the entire north-south axis of the Rocky Mountains. The available data indicate that yellow-billed cuckoos was probably never common on the western slope of the Rocky Mountains in Colorado (Bailey and Niedrach 1965; Kingery 1998), and is now extremely rare (Kingery 1998). Based on the available information, the Rocky Mountains in Colorado form a substantial break between yellow-billed cuckoo populations east and west of the crest, a break which is accentuated by the species' current extreme rarity in Colorado west of the Great Plains.

The separation of western and eastern populations of yellow-billed cuckoo continues south along the Rocky Mountain crest into Southern Colorado, eastern New Mexico and southwest Texas, terminating at the Rio Grande river in the Big Bend National Park. Thus, the western yellow-billed cuckoo DPS includes portions of the Rio Grande hydrological basin, and excludes the Pecos River drainage.

The Rio Grande basin differs from the rest of the DPS in that it includes an area which drains to the Gulf of Mexico. However, its inclusion is consistent with the DPS in other respects. First, the DPS boundary follows the crest of the southeastern extent of the Rocky Mountains. This crest region encompasses a series of mountain ranges and other highlands above 1,800 m (6,000 feet), including the Sange de Cristo, Sandia, Manzano, San Andres, Sacramento, and Guadalupe mountains. In this region, the DPS boundary also includes as extensive desert basins, notable the Tularosa and Jornado del Muerto basins. Together, these highlands, mountains, and desert basins, centered on the ranges that divide the Pecos and Rio Grande rivers, form a broad zone that lacks suitable nesting habitat and is expected to separate the eastern and western cuckoo populations, as do the higher mountains along the crest farther north. Second, ecologically, the portion of the Rio Grande basin within the DPS has greater affinity with the western United States than with the area east of the Rocky Mountains (Graham 1993; U.S. North American Bird Conservation Initiative (NABCI), in litt., 2000; Pashley et al. 2000), whereas regions east of the DPS (lower Rio Grande) have greater affinity for the Great Plains and other eastern ecological regions. The riparian habitats in the Rio Grande of New Mexico and west Texas are similar to those occupied by yellow-billed cuckoos in other western regions, being dominated by Fremont cottonwood and willows, whereas most yellow-billed cuckoo habitat along the Pecos River in New Mexico historically lacked cottonwood forests, and today is dominated by non-native tamarisk trees, which have allowed an expansion of the cuckoo population along the Pecos River (W. Howe, pers. comm., 1999; Hunter et al. 1988; Ellis 1995). West Texas has been recognized by ecologists as part of a distinct ecological province or region, the Chihuahuan Desert, which is ecologically different from areas to the east which are not within the boundary of this DPS. In fact, the DPS boundary and Chihuahuan Desert boundary closely coincide in west Texas (e.g., see Chihuahuan Desert map at http://nasa.utep.edu/chih/chihdes.htm). Third, as discussed elsewhere in this finding, cuckoos nesting along the Rio Grande of west Texas and New Mexico behave as do other western cuckoos in the timing of their spring migration, arriving on their breeding grounds at least 3-4 weeks later than their eastern counterparts (Bailey 1928; Bent 1940; Oberholser and Kincaid 1974; Hughes 1999; Sproul in litt 2000). For these reasons, the crest of the Rocky Mountains presents a clearer geographic and biologic separation in New Mexico and west Texas, than does the Continental Divide.

In general, the western Great Plains region lacks suitable habitat and contributes to the separation between eastern and western yellow-billed cuckoos. However, the Great Plains are not a complete barrier to yellow-billed cuckoos because the species nests in riparian corridors that extend westward towards the Rocky Mountains along tributaries of the Mississippi and Missouri Rivers. These riparian corridors connect with extensive yellow-billed cuckoo habitat to the east that quite possibly support large yellow-billed cuckoo populations, notably in the bottomlands of the Mississippi River and its major tributaries. Thus, these corridors decrease the physical separation between yellow-billed cuckoos east and west of the Rocky Mountain crest. The effect of these corridors on gene flow and population interchange is unknown. Evidence from other bird species provide examples of boundaries between eastern and western taxa which meet and are maintained in the eastern Rocky Mountain-western Great Plains region (Gill 1989; Ehrlich et al. 1988). For example, the ranges of at least fourteen pairs of closely related eastern and western bird species meet in Great Plains, with minimal overlap between the species in most cases (Ehrlich et al. 1988). Although the yellow-billed cuckoo question does not involve separate species, this example suggests some underlying differences between eastern and western regions that may help maintain boundaries between species in the area of the Rocky Mountains-Great Plains.

More relevant to the question of separation of yellow-billed cuckoo populations are bird species for which recognized eastern and western bird subspecies meet along a north-south boundary in the Rocky Mountain-western Great Plains region. These species include several which, like the yellow-billed cuckoo, migrate south to neotropical wintering areas: Bell's vireo ( Vireo bellii ) (AOU 1957; Sibley 2000), yellow warbler ( Dendroica petechia ), yellow-rumped warbler ( D. coronata ), and yellow-breasted chat ( Icteria virens ) (Dunn and Garrett 1997). Of further interest and relevance to the question of separateness of western and eastern yellow-billed cuckoos is the evidence that eastern and western subspecies of several species of neotropical migrants winter in separate areas. These species include Bell's vireo (AOU 1957) and yellow warbler, orange-crowned warbler ( Vermivora celata ), Nashville warbler ( V. ruficapilla ), yellow-rumped warbler, Wilson's warbler, and yellow-breasted chat (Dunn and Garrett 1997). These examples indicate that the Rocky Mountains-western Great Plains region does serve to separate populations of other neotropical migrant birds sufficiently to maintain measurable, subspecific differences.

Little is known about the migratory paths of individual species or populations, but some evidence exists to support that eastern and western bird populations tend to follow different migratory paths. First, the primary migratory paths are north-south, parallel to the axis of the Rocky Mountains and most other western mountain ranges, and in general, bird migration in North America is primarily along four north-south routes or flyways (Pacific, Central, Mississippi, and Atlantic) (Ehrlich et al. 1988). Thus, eastern and western birds tend to follow distinct migration routes, with western (Pacific flyway) birds following different paths than Great Plains (Central Flyway) and eastern birds (Mississippi, Atlantic flyways). In addition, studies to date in Europe and North America indicate that migrating birds do respond to major topographic features such as mountain ranges (Walcott and Lednor 1983; Williams et al. 2001). We are not aware of migration route studies in the Rocky Mountains, but a recent study in the northern Appalachian Mountains found that southbound avian migrants oriented to topography (Williams et al. 2001). The authors of that study concluded that, as observed in the Alps of Europe, landforms have a significant guiding effect on migrating birds, with lower-flying birds tending to change course to fly parallel to mountain ridges, and to use passes when their migration route required crossing the axis of a range (Williams et al. 2001).

In our 90-day administrative finding for this petition (65 FR 8104), we discussed the fact that the yellow-billed cuckoo is a mobile species, migrating to South America during the non-breeding season. This mobility raises the question of whether 240 km (150 mi) of mountains poses a barrier to movement between populations east and west of the crest of the Rocky Mountains. We are unaware of scientific data which would allow us to directly address the effectiveness of the mountains as a physical separation between yellow-billed cuckoo populations, but some evidence bears on the question. We have already described the observation that a broad area of unsuitable habitat largely separates suitable, occupied habitat east and west of the crest of the Rocky Mountains. Also, many other bird species migrate between Central/South America and North America and have maintained discrete populations or subspecies, which are separated by the Rocky Mountains (Pitelka 1947; Udvardy 1963; Johnsgard 1986).

Data from movements of banded yellow-billed cuckoos provide no evidence of movement between eastern and western yellow-billed cuckoo populations, across the Rocky Mountain crest. Analyzing BBL banding data found that of a total of 8,673 banded yellow-billed cuckoos, of which 26 bands were recovered, no western birds were found east of the Rocky Mountain crest, nor eastern birds recovered west of the crest. While the data provide no evidence for movement between eastern and western yellow-billed cuckoo populations, the sample size is too small to adequately test the hypothesis that movement is limited between eastern and western regions. Only 251 yellow-billed cuckoos were banded in western States, with only one band recovery. Eight of the 26 recovered birds were found in a State different from where it was banded. Of these, only one significant displacement occurred on an east to west axis, for a bird banded in Iowa and recovered in Pennsylvania.

The extent to which yellow-billed cuckoos nesting in different regions of North America commingle during migration, or while overwintering, is unknown. Data provided by the BBL, from bird band returns to date is insufficient to determine migration or wintering patterns (BBL, in litt., 1998). While some scientists have provided information supporting the hypothesis that yellow-billed cuckoos breeding in the western United States winter in different regions of South America than do yellow-billed cuckoos nesting east of the Rocky Mountains (R. Ridgely, in. litt. 2000; J. Hughes in. litt. 2000; S. Laymon in. litt. 2000), the information available is not sufficient to test the hypothesis.

Western yellow-billed cuckoos have historically occurred and/or still occur in several distinct ecoregions including the Great Basin, Sonoran Desert, Sonoran and Mohave Deserts, Northern Pacific Rainforest, Northern Rockies, Southern Rockies/Colorado Plateau, Coastal California, and Sierra Madre Occidental ecoregions (Graham 1993; NABCI, in litt., 2000; Pashley et al. 2000). While these western ecoregions differ in many respects, they are joined by common factors, which also distinguish them from most eastern ecoregions within which yellow-billed cuckoos occur. Foremost among these is the fact that western yellow-billed cuckoo populations occur along narrow and patchy riparian corridors that provide suitable moist deciduous woodlands within otherwise unsuitable arid landscapes. By contrast, east of the Rocky Mountains, the yellow-billed cuckoo occurs in extensive bottomland forests in the Mississippi River and other drainages, as well in deciduous woodlands in non-riparian situations, including deciduous forests such as oak hickory forests, parks, and some suburban areas (Wilson 1999; Amundson et al. , in litt., 2000).

Data collected from publications and other sources demonstrate, to varying degrees of certainty, the existence of morphological, physiological, and behavioral differences between eastern and western yellow-billed cuckoos.

Based on the available information, the best evidence of behavioral/physiological differences between yellow-billed cuckoos populations west and east of the Rocky Mountain crest is differences in the timing of arrival during the spring migration, and the timing of nesting. Several authors have observed that western yellow-billed cuckoos arrive and nest substantially later than do eastern yellow-billed cuckoos (Hughes 1999; Franzreb and Laymon 1993; S. Laymon in. litt. 2000), while an Arizona study found less of a pattern, but noted that Arizona yellow-billed cuckoos appeared to nest several weeks later than California yellow-billed cuckoos (Hamilton and Hamilton 1965). Franzreb and Laymon (1993) and Hughes (1999) concluded that the nesting season in western States begins a full three to four weeks later than it does east of the Rocky Mountains, and that western yellow-billed cuckoos arrive on their breeding grounds 4 to 8 weeks later than do eastern yellow-billed cuckoos at similar latitudes. One scientist has also suggested that the breeding season of western birds is shorter than for eastern birds, due to later spring arrival and earlier fall departure, and that is evidence of evolved behavioral differences between eastern and western yellow-billed cuckoos (Hughes, in. litt. to K. Suckling, 2000).

We compared the timing of arrival on breeding grounds from several studies and concluded that there is at least a 3 to 4 week difference in the peak of migration and onset of nesting season, with eastern yellow-billed cuckoos being the earliest (Chapman 1903; Bent 1940; Franzreb and Laymon 1993; Hughes 1999; S. Laymon, in litt., 2000). In our 90-day finding for this petition (65 FR 8104), we speculated that differences in timing of arrival on breeding grounds and in breeding could be the result of genetically-similar birds responding to local environmental cues. We believe this remains as one hypothesis for timing of breeding (Hamilton and Hamilton 1965), although the difference could also reflect genetic-based differences. In the case of timing of arrival on breeding grounds, comments received in response to the 90-day finding (S. Laymon in. litt. , 2000; J. Hughes in. litt. to K. Suckling, 2000; Amundson et al., in litt., 2000) provide a persuasive argument that timing of arrival is more likely the result of an evolved response to east-west differences, via mechanisms likely under genetic control.

Other differences between yellow-billed cuckoos in the proposed western DPS and eastern yellow-billed cuckoos exist and provide additional evidence of discreteness. For example, western yellow-billed cuckoos have larger egg size and weight (mass in grams), with thicker egg shells than the eastern yellow-billed cuckoo (Hughes 1999). This difference may correlate with potential higher egg water loss from hotter, dryer conditions in the west than the east (Hamilton and Hamilton 1965; Ar et al. 1974; Rahn and Ar 1974).

Eastern juveniles have been reported to have yellow bills (Oberholser and Kincaid 1974), while western juveniles in California are reported to have all-black bills (Franzreb and Laymon 1993). However, since bill color in juveniles changes from grayish, to yellow and black around the age of 60 days (Hughes 1999), this reported difference needs to be verified, taking into account juvenile age.

Western adult yellow-billed cuckoos have been reported to have an orange lower mandible, while eastern adults have a yellow lower mandible (Franzreb and Laymon 1993; S. Laymon, in. litt. 2000). No scientific data are available to verify this, and the reported difference has not been the subject of a published scientific study. However, Dr. Stephen Laymon has worked extensively with western yellow-billed cuckoos and is a species expert.

Western adults, on average, are larger and heavier than eastern adult birds. These differences are discussed above and in the literature (Banks 1988, 1990; Franzreb and Laymon 1993; Oberholser and Kincaid 1974), and are evidence of some degree of physical isolation. However, as discussed by Banks (1988, 1990), and in our 90-day administrative finding, the differences are not strong, and may be clinal. We believe that these differences merit further analysis, with greater sample sizes and using a greater number of morphological characteristics.

From the analysis of two different mtDNA genes (control region and ATP8) totaling 736 base pair sequences, Dr. Fleischer concluded that there was significant divergence in haplotype (set of genes that determine different antigens) frequencies between eastern and western samples, which suggests that they may not currently be exchanging many migrants (Fleischer 2001).

In view of the above information, we find that the available information supports the recognition of a western DPS of the yellow-billed cuckoo, as described, based on the physical, ecological, and behavioral discreteness of the population segment.

Under our DPS policy, once we have determined that a population segment is discrete, we consider its biological and ecological significance to the larger taxon to which it belongs. This consideration may include, but is not limited to, evidence of the persistence of the discrete population segment in an ecological setting that is unique for the taxon; evidence that loss of the population segment would result in a significant gap in the range of the taxon; evidence that the population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range; and evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics. Significance is not determined by a quantitative analysis, but instead is a qualitative finding. It will vary from species to species and cannot be reduced to a simple formula or flat percentage. We have found substantial evidence that three of these significance factors are met by the discrete population segment of yellow-billed cuckoos that occurs west of the Rocky Mountain crest.

Loss of the western yellow-billed cuckoo population segment would result in loss of the species from the United States west of the continental divide and the Rocky Mountain crest. This represents a loss of the species from about 28 percent of its historic range in the continental United States. If one assumes that the species is already extirpated from the States of Washington and Oregon, the loss would still exceed more than 20 percent of the species' current range, and recent records indicate that the species may still persist in small numbers in eastern Oregon. Because the proportion of the total suitable yellow-billed cuckoo habitat in the west is lower than the proportion of the range (because the cuckoo uses more narrowly circumscribed habitat types in the west than the east), we do not believe that loss of the species from the west would by itself require listing the species as a whole; however, we emphasize that the “significant gap in the range” analysis required for a DPS is different than the “significant portion of the range” analysis required for a listing decision for the entire species. We believe that loss of the species from the United States west of the continental divide and the Rocky Mountain crest would result in a significant gap in the range of the species as a whole.

We discussed above the manners in which the ecological setting used by western yellow-billed cuckoos differs fundamentally from that of eastern yellow-billed cuckoos, because of the western population segment's strong association with non-montane riparian woodlands, contrasting sharply with States east of the Rocky Mountains, where yellow-billed cuckoos nest across a much broader range of habitat conditions. In the western States, the yellow-billed cuckoo occurs primarily in arid regions where riparian woodlands, particularly those which include cottonwood trees as a dominant component, provide ecological conditions which are unique for the region. These conditions are essential to the survival of yellow-billed cuckoo in the west, as well as to the survival of many other riparian-dependent species (Hunter et al. 1987; Sanders and Edge 1998; Knopf and Samson 1994).

The western yellow-billed cuckoo populations have persisted over long periods, despite the small number of breeding pairs which breed in relatively isolated areas. Although site fidelity and dispersal patterns have not been studied, a limited number of banding returns from the yellow-billed cuckoo population on the South Fork Kern River in California indicate that adult birds return to the same nesting areas in subsequent years (S. Laymon, in litt ., 2000). Although the species is reported to have nomadic tendencies (Hughes 1999), the repeated return from South America each spring to relatively isolated breeding sites is strongly suggestive of site fidelity. A scenario of strong breeding site fidelity, and often isolated breeding populations, combined with most river reaches supporting very few (less than 20) breeding pairs, suggests that local western populations may constitute important isolated units. Under this same scenario, these units may contain important genetic and phenotypic diversity.

While recent analysis of the genetic differences between the eastern and western population segments of yellow-billed cuckoos (Fleischer 2001) indicates that these differences may not rise to the level typical of different subspecies, they do suggest that eastern and western populations are not now exchanging many migrants. Furthermore, analysis of the pattern of variation suggests that yellow-billed cuckoos may have recently (since the last glacial retreat) spread from a refugial population, released by habitat changes as the climate in North America warmed (Fleischer 2001). We believe that the existing western discrete population segment of yellow-billed cuckoos may represent an early stage of evolutionary differentiation. Loss of this discrete population segment would result in the loss of genetic differences from eastern cuckoos.

We have evaluated as a DPS the population of western yellow-billed cuckoos from the portion of the United States west of the Rocky Mountain crest, addressing the two elements which our policy requires us to consider in deciding whether a vertebrate population may be recognized as a DPS and considered for listing under the Act. In assessing the population segment's discreteness from the remainder of the taxon, we have described the physical separation, ecological discreteness, behavioral discreteness as reflected in the timing of migration and nesting, and morphologic data. We considered distributional data, ecological, behavioral, morphologic and genetic information, information from banding returns, and geographic and biogeographic patterns and have concluded that this population segment is discrete under our DPS policy. In assessing the population segment's significance to the taxon to which it belongs, we have considered the available information, including the large geographic area represented by the western DPS, its ecological distinctness, which is typified by cottonwood-willow riparian woodlands upon which the western DPS largely depends for breeding, its genetic differences from other cuckoo populations in the eastern United States, and other considerations and factors discussed above. We have concluded that loss of the species from the portion of the United States west of the Rocky Mountain crest would represent a significant gap in the species' range, the loss of the species from a unique ecological setting, and the loss of genetic differences from eastern yellow-billed cuckoos. Therefore, as the population segment meets both the discreteness and significance criteria of our DPS policy, the DPS qualifies for consideration for listing. An evaluation of the level of threat to the DPS based on the five listing factors established by the Act to determine if listing of the DPS follows.

Section 4 of the Act and regulations (50 CFR part 424) promulgated to implement the listing provisions of the Act describes the procedures for adding species to the Federal lists. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1). These factors, and their application to the yellow-billed cuckoo, are as follows:

A. The present or threatened destruction, modification, or curtailment of its habitat or range. Principal causes of riparian habitat losses are conversion to agricultural and other uses, dams and river flow management, stream channelization and stabilization, and livestock grazing. Available breeding habitats for yellow-billed cuckoos have also been substantially reduced in area and quality by groundwater pumping, and the replacement of native riparian habitats by invasive non-native plants, particularly tamarisk (Groschupf 1987; Rosenberg et al. 1991). Estimates of riparian habitat losses include 90-95 percent for Arizona, 90 percent for New Mexico, 90-99 percent for California, and more than 70 percent nationwide (Noss et al. 1995; Ohmart 1994). Much of the remaining habitat is in poor condition and heavily affected by human use (U.S. Department of Interior 1994; Almand and Krohn 1978). Fragmentation effects include the loss of patches large enough to sustain local populations, leading to local extinctions, and the potential loss of migratory corridors, affecting the ability to recolonize habitat patches (Hunter 1996).

Dahl (1990) reviewed estimated losses of wetlands between 1780 and the 1980s in the Southwest: California is estimated to have lost 91 percent, Nevada 52 percent, Utah 30 percent, Arizona 36 percent, New Mexico 33 percent, and Texas 52 percent. As much as 90 percent of major lowland riparian habitat has been lost or modified in Arizona (State of Arizona 1990). Franzreb (1987) noted that “(B)ottomland riparian forests are the most highly modified of natural landscapes in California.”

Much of the dramatic decline of the yellow-billed cuckoo in California has been directly attributed to breeding habitat loss from clearing and removal of riparian forest for agriculture, urban development and flood control (Gaines 1974; Gaines and Laymon 1984; Laymon and Halterman 1987b; Launer et al. 1990; Hughes 1999). Losses in the Central Valley alone have been relatively large, especially along the Valley's formerly free-flowing rivers such as the Sacramento where, under pristine conditions, broad overflow plains and dense riparian forests extended for up to 8 km (5 mi) from both banks (Service 2000). Following the most intense reclamation and development period, Kabitah (1984) estimated that Central Valley riparian forests had been reduced by more than 95 percent from historical condition and that a large proportion of remaining forests were in highly disturbed or degraded condition. A recent study of the San Joaquin River between Friant Dam and Merced River confluence found that between 1937 and 1993, the area of riparian forest and scrub decreased 28 percent, from 2,745 to 1,989 ha (6,787 to 4,914 ac) (Jones & Stokes Associates, Inc. 1998).

Suitable habitat for the yellow-billed cuckoo is very limited in Nevada with most areas of cottonwood riparian forests being fragmented (NDW, in litt. , 2001). Studies from Great Basin National Park (NPS, in litt. , 2001) in the South Snake Mountain Range determined that of the 190 ha (469 ac) of existing riparian habitat only 3 ha (8 ac) was suitable for supporting yellow-billed cuckoo. Most of the suitable habitat along the Truckee, Carson, and Walker Rivers has been modified or destroyed (NDW, in litt. , 1985, 1990).

Loss and modification of southwestern riparian habitats have occurred from urban and agricultural development, water diversion and impoundment, channelization, livestock grazing, off-road vehicle and other recreational uses, and hydrological changes resulting from these and other land uses. Rosenberg et al. (1991) noted that “it is the cottonwood-willow plant community that has declined most with modern river management.” Loss of the cottonwood-willow riparian forests has had widespread impact on the distribution and abundance of bird species associated with that forest type (Hunter et al. 1987; Hunter et al. 1988; Rosenberg et al. 1991).

Overuse by livestock has been a major factor in the degradation and modification of riparian habitats in the western United States. The effects include changes in plant community structure and species composition, and relative abundance of species and plant density. These changes are often linked to more widespread changes in watershed hydrology (Rea 1983; General Accounting Office (GAO) 1988). Livestock grazing in riparian habitats typically results in reduction of plant species diversity and density, especially of palatable broadleaf plants like willows and cottonwood saplings, and is one of the most common causes of riparian degradation (Carothers 1977; Rickard and Cushing 1982; Cannon and Knopf 1984; Klebenow and Oakleaf 1984; GAO 1988; Clary and Webster 1989; Schultz and Leininger 1990).

Increases in abundance of riparian bird species have followed reduction, modification, or removal of cattle grazing. Krueper (1993) found the following increases in birds associated with cottonwood-willow habitat on Arizona's San Pedro River 4 years after the removal of livestock: yellow warbler, 606 percent; common yellow-throat, 2,128 percent; yellow-breasted chat, 423 percent. Bock et al. (1993) found that 40 percent of the riparian bird species they examined were negatively affected by livestock grazing. As shady, cool, wet areas providing abundant forage, they are disproportionately preferred by livestock over the surrounding xeric uplands (Ames 1977; Valentine et al. 1988; A. Johnson 1989). Harris et al. (1986) believed that termination of grazing along portions of the South Fork of the Kern River in California was responsible for increases in riparian vegetation.

Another likely factor in the loss and modification of the habitat for yellow-billed cuckoo is the invasion by the non-native tamarisk. Tamarisk was introduced into western North America from the Middle East in the late 1800s as an ornamental windbreak and for erosion control. It has spread rapidly along southwestern watercourses, typically at the expense of native riparian vegetation, especially cottonwood/willow communities. Although tamarisk is present in nearly every southwestern riparian community, its dominance varies. It has replaced some communities entirely, but occurs at a low frequency in others.

The spread and persistence of tamarisk has resulted in significant changes in riparian plant communities. In monotypic tamarisk stands, the most striking change is the loss of community structure and diversity. The multilayered community of herbaceous understory, small shrubs, middle-layer willows, and overstory deciduous trees is often replaced by one monotonous layer. Plant species diversity has declined in many areas, and relative species abundance has shifted in others. Other effects include changes in percent cover, total biomass, fire cycles, thermal regimes, and perhaps insect fauna (Kerpez and Smith 1987; Carothers and Brown 1991; Rosenberg et al. 1991; Busch and Smith 1993).

Disturbance regimes imposed by man (e.g., grazing, water diversion, flood control, woodcutting, and vegetation clearing) have facilitated the spread of tamarisk (Behle and Higgins 1959; Kerpez and Smith 1987; Hunter et al. 1988; Rosenberg et al. 1991). Cattle find tamarisk unpalatable. However, they eat the shoots and seedlings of cottonwood and willow, acting as a selective agent to shift the relative abundance of these species (Kerpez and Smith 1987). Degradation and, in some cases, loss of native riparian vegetation lowered the water table and has resulted in the loss of perennial flows in some streams. With its deep root system and adaptive reproductive strategy, tamarisk thrives or persists where surface flow has been reduced or lost. Further, tamarisk establishment often results in a self-perpetuating regime of periodic fires, which were uncommon in native riparian woodlands (Busch and Smith 1993).

Manipulation of perennial rivers and streams has resulted in habitats that tend to allow tamarisk to out-compete native vegetation. Construction of dams created impoundments that destroyed native riparian communities. Dams also eliminated or changed flood regimes, which were essential in maintaining native riparian ecosystems (Vogl 1980; Richter and Richter 2000). Changing (usually eliminating) flood regimes provided a competitive edge to tamarisk. In contrast to native, deep-rooted species, tamarisk does not need floods and is intolerant of submersion when young. Diversion of water caused the lowering of near-surface groundwater and reduced the relative success of native species in becoming established. Irrigation water containing high levels of dissolved salts also favors tamarisk, which is more tolerant of high salt levels than most native species (Kerpez and Smith 1987; Busch and Smith 1993).

Conversion to tamarisk typically coincides with reduction or complete loss of bird species strongly associated with cottonwood-willow habitat, including the yellow-billed cuckoo (Hunter et al. 1987; Hunter et al. 1988; Rosenberg et al. 1991). While Brown and Trosset (1989) believed tamarisk may serve as an “ecological equivalent” to native vegetation, they noted that their study occurred where a tamarisk community became established where no native equivalent existed before. This is especially evident along the Pecos River in Texas (Hunter et al. 1988).

Water developments also likely reduced and modified yellow-billed cuckoo habitat. The series of dams along most major southwestern rivers (Colorado, Gila, Salt, Verde, Rio Grande, Kern, San Diego, and Mojave) have altered riparian habitats downstream of dams through hydrological changes, vegetational changes, and inundated habitats upstream. New habitat is sometimes created along the shoreline of reservoirs, but this habitat (often tamarisk) is often unstable because of fluctuating levels of regulated reservoirs (Grinnell 1914; Phillips et al. 1964; Rosenberg et al. 1991).

Diversion and channelization of natural watercourses are also likely to have reduced yellow-billed cuckoo habitat. Diversion results in diminished surface flows and increased salinity of residual flows. Consequent reductions and composition changes in riparian vegetation are likely. Channelization often alters stream banks and fluvial dynamics necessary to maintain native riparian vegetation (Vogl 1980; Richter and Richter 2000).

River channelization, construction of levees close to the river, and riprap along the levees have fragmented riparian habitat along the Sacramento River and disrupted the ecological processes which both renew and restore riparian and aquatic habitats (Laymon and Halterman 1987a; Halterman 1991; Service 2000). More than one-half of the Sacramento River's banks within the lowermost 312 km (194 mi) of river have been riprapped over the last four decades (Service 2000). The result is that much of the River's remaining riparian habitat now occurs in the form of narrow disconnected linear patches (Service 2000; Halterman et al. 2001), unsuitable for yellow-billed cuckoo nesting (Gaines 1974). This may be due to the loss of continuous migration corridors, lack of patches of adequate size for nesting, and the species' inability to use highly isolated patches (Halterman 1991). Exacerbating such problems is the fact that the yellow-billed cuckoo now, for unknown reasons, utilizes a narrower range of habitats in California, now predominantly cottonwood-willow complex, than it did historically (Laymon and Halterman 1987b).

The yellow-billed cuckoo is considered very vulnerable from deforestation of its wintering grounds (Morton 1992), and while losses of neotropical forests and woodlands have been substantial and ongoing, particularly in Central America and northern South America (Hartshorn 1992; Brown and Lomolino 1998), the relationship between overwintering habitat and yellow-billed cuckoo populations has not been studied or documented.

B. Over-utilization for commercial, recreational, scientific, or educational purposes. We are unaware of threats resulting from overutilization.

C. Disease or predation. We are unaware of any disease or predation that constitutes a significant threat to yellow-billed cuckoos. However, adults have been preyed upon by falcons (Hector 1985; Bob Altman, North American Bird Conservation Initiative, Northern Pacific Rain Forests Region, Oregon, pers. comm., 2001), and nestlings have been taken by hawks, jays, grackles (Launer et al. 1990; Nolan and Thompson 1975), and by various snake and mammal species (Nolan 1963). In eastern Mexico, adults are frequently attacked by raptors during migration (J.K. Wilson, pers. comm., in Hughes 1999; Wilson 1999). In a recent study of 252 yellow-billed cuckoo nests in Arkansas, predation accounted for 91 percent of all nest failures, with small mammals, birds, and reptiles depredating the greatest proportion (Wilson 1999).

D. The inadequacy of existing regulatory mechanisms. The Migratory Bird Treaty Act (MBTA) (16 U.S.C. Sec. 703-712) is the only current Federal protection provided the yellow-billed cuckoo. The MBTA prohibits “take” of any migratory bird, which is defined as: “* * * to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect * * * .” However, unlike the Endangered Species Act, there are no provisions in the MBTA preventing habitat destruction unless direct mortality or destruction of active nests occurs.

The majority of the occupied areas west of the Continental Divide for the yellow-billed cuckoo lies within California, Arizona, and New Mexico (Hughes 1999). Only California classifies the yellow-billed cuckoo as endangered (California Department of Fish and Game (CDFG) 2001). In Arizona, the species was formerly State-listed as threatened, but is now considered a Wildlife of Concern, a designation which the Arizona Game and Fish Department now uses for wildlife instead of “threatened”. Neither its past status as threatened nor its current status as a species of concern confers any protection to the species in Arizona. The bird has no special protective status in Wyoming, New Mexico, Colorado, Idaho, or Texas (Groschupf 1987), and habitat protection or protection of individuals is not provided beyond existing regulations on capture, handling, transportation, and take of native wildlife. Utah considers the yellow-billed cuckoo as threatened. In Nevada, the yellow-billed cuckoo is identified as critically imperiled due to extreme rarity, imminent threats, or biological factors, and is proposed for protection as threatened. The California Endangered Species Act (CESA) prohibits unpermitted possession, purchase, sale, or take of listed species. However, the CESA definition of take does not include harm, which under the Act can include destruction of habitat that actually kills or injures wildlife by significantly impairing essential behavioral patterns (50 CFR 17.3). CESA does require consultation between the CDFG and other State agencies to ensure that activities of State agencies will not jeopardize the continued existence of State-listed species (CERES, in litt. , 2001). Yellow-billed cuckoos have no State status in Oregon because it has not been considered an active breeding species since the 1940s (B. Alterman, pers. comm., 2001). In Washington, the yellow-billed cuckoo is considered critically imperiled (five or fewer occurrences). However, no active nesting has been documented since the 1930s. We believe that these, and other regulatory mechanisms, are inadequate to ensure the continued existence of the western DPS of yellow-billed cuckoo.

E. Other natural or human caused factors affecting the DPS' continued existence. Environmental, demographic, and genetic vulnerability to random extinction are recognized as interacting factors that might contribute to a population's extinction (Hunter 1996). The riparian habitat on which the yellow-billed cuckoo depends has been reduced and degraded throughout the western continental U.S. Its habitat rarity and small, isolated populations make the remaining yellow-billed cuckoo populations in this region increasingly susceptible to local extirpation through stochastic events such as floods, fire, predation, depredation, and land development.

Brood parasitism by the brown-headed cowbird ( Molothrus ater ) has been documented only six times (Wilson, in litt. , 1999; Friedmann 1971), and less so by the bronzed cowbird ( Molothrus aeneus ) (Clotfelter and Brush 1995). With an incubation period of 10-13 days, and fledging in 10-11 days, the brown-headed cowbird requires more development time before fledging than the yellow-billed cuckoo. Therefore, successful parasitism of yellow-billed cuckoo nest by brown-headed cowbird is unlikely (Ehrlich et al. 1988).

In addition to destruction and degradation of riparian habitats, pesticides may affect yellow-billed cuckoo populations (Groschupf 1987; Hughes 1999). Although the evidence is too limited to evaluate this effect, it warrants further study. In areas where riparian habitat borders agricultural lands, such as in California's Central Valley, pesticide use may affect yellow-billed cuckoos indirectly by reducing prey numbers, or directly by poisoning nestlings if sprayed in areas where the birds are nesting (Laymon and Halterman 1987b).

Accumulation of chlorinated hydrocarbon pesticides, particularly DDT, has affected other bird species, particularly top predators (Robinson and Bolen 1989). Although DDT use has been banned in the United States since 1972, yellow-billed cuckoos may be exposed to DDT on wintering grounds where DDT use has not been banned. Analysis of two eggs collected in California in 1979 showed very low levels of DDE, a stable metabolite of DDT, but eggshell fragments collected in 1985 from three nests along the South Fork of the Kern River in California averaged 19 percent thinner than pre-DDT era eggshells (Laymon and Halterman 1987b). DDT has caused eggshell thinning in other bird species, but its role in the Kern River observations is unknown.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by this species. We reviewed the petition, information available in our files, other published and unpublished information submitted to us during the public comment period following our 90-day petition finding, consulted with recognized yellow-billed cuckoo experts, avian molecular geneticists, and other Federal, State, and Tribal resource agencies throughout the country. On the basis of the best scientific and commercial information available, we find that listing the yellow-billed cuckoo western DPS as threatened is warranted, but precluded by higher priority listing actions.

In making this finding, we recognize that there have been declines in the distribution and abundance of yellow-billed cuckoos throughout the western States, primarily attributed to habitat loss, degradation and fragmentation, overgrazing, replacement of native riparian woodland species by tamarisk and other non-native plants, and river management, including altered flow and sediment regimes, and flood control practices, such as channelization and bank protection.

We conclude that the overall magnitude of threats to the western yellow-billed cuckoo DPS is high, and that the overall immediacy of these threats is non-imminent. Pursuant to our Listing Priority Guidance (64 FR 7114), a DPS for which threats are high but non-imminent is assigned a Listing Priority Number of 6. While we conclude that listing the western DPS of the yellow-billed cuckoo is warranted, an immediate proposal to list is precluded by other higher priority listing actions. During this fiscal year, 2001, we must spend nearly all of our Listing Program funding to comply with court orders and judicially approved settlement agreements, which are now our highest priority actions. The western DPS of the yellow-billed cuckoo will be added to the list of candidate species upon publication of this notice of 12-month finding. We will continue to monitor the status of this species and other candidate species. Should an emergency situation develop with one or more of the species, we will act to provide immediate protection, if warranted.

We intend that any proposed listing action for the yellow-billed cuckoo western DPS will be as accurate as possible. Therefore, we will continue to accept additional information and comments from all concerned governmental agencies, the scientific community, industry, or any other interested party concerning this finding. Before we proceed with listing the yellow-billed cuckoo we will solicit a scientific peer review of the DPS boundary.

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

This document was prepared by the Sacramento Fish and Wildlife Office (see ADDRESSES section).

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

The Magnuson-Stevens Act required the North Pacific Fishery Management Council (Council) and NMFS to establish a CDQ program under which a percentage of the guideline harvest level (GHL) of Bering Sea and Aleutian Island (BSAI) crab fisheries is allocated to the program. In 1998, NMFS issued regulations implementing the crab CDQ program (50 CFR 679.31; 63 FR 8356, February 19, 1998) and crab CDQ fisheries began that year. Section 305(i)(1)(C)(iii) of the Magnuson-Stevens Act required that 7.5 percent of the total allowable catch of each crab fishery for 2000 and beyond shall be allocated to the crab CDQ program.

Under the FMP, the Council and NMFS defer management of the BSAI king and Tanner crab fisheries, including the CDQ fisheries, to the State of Alaska (State), with Federal oversight. The State/Federal cooperative management regime established in the FMP specifies three categories of management measures that provide the framework for the State management of the crab fisheries, including the determination of the GHLs and fishery seasons. The FMP also provides the State with the authority to manage CDQ crab harvesting activity, including when CDQ fishermen may harvest the CDQ reserve.

The State sets crab fishing seasons according to a shellfish management cycle based on stock assessment surveys conducted in the summer and establishes GHLs for the upcoming fall and winter fishing seasons according to those surveys. The CDQ reserve is a portion of the GHL. Currently, CDQ crab fisheries are conducted after the regular commercial fishery; however, State regulations provide the regulatory flexibility to conduct a CDQ fishery before the regular commercial fishery for snow crab ( Chionoecetes opilio ).

Although Federal regulations implementing the crab CDQ reserve specify that the crab CDQ reserves be allocated by calendar year, the Magnuson-Stevens Act does not dictate when the reserve is available for harvest, only that the reserve be a portion of the annual harvest amount. By allocating to the crab CDQ reserve on a calendar year basis, the State is prevented from conducting a CDQ crab season before the regular commercial fishery for snow crab because of the timing of the snow crab fishing season. The regular commercial fishery for snow crab starts on January 15 and ends when the GHL is harvested. Additionally, State stand-down provisions prohibit vessels that intend to participate in the snow crab fishery from being on the fishing grounds 14 days prior to the opening of the fishery. Thus, a CDQ season before the regular snow crab fishery could only start in December of the previous calendar year.