This rule has been determined to be not significant for purposes of Executive Order 12866 and, therefore, has not been reviewed by OMB.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. There are no administrative proceedings which must be exhausted before parties may file suit in court challenging this rule.

This rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 [44 U.S.C. 3501 et seq. ].

Prior to 1995, 7 CFR part 1200 contained generic rules of practice and procedure governing promulgation proceedings under various research, promotion, and information programs. Each individual program contained its own separate subpart containing rules of practice governing petition proceedings. On July 20, 1995 [60 FR 37326], the duplicative, program-specific rules of practice for petition proceedings were consolidated into a subpart of Part 1200, and the subpart was entitled Rules of Practice Governing Proceedings on Petitions to Modify or to be Exempted from Research, Promotion, and Education Programs.

Subsequently, on March 11, 2002 [67 FR 10827], the rules of practice on promulgation and petition proceedings were amended by a final rule to make a number of changes to expedite proceedings and save the United States and those who participate in the proceedings time and money.

The rules of practice for promulgation proceedings apply to programs issued under the Cotton Research and Promotion Act, as amended [7 U.S.C. 1201-2118], the Egg Research and Consumer Information Act [7 U.S.C. 2701-2718], the Potato Research and Promotion Act, as amended [7 U.S.C. 2611-2627], and the Pork Promotion, Research, and Consumer Information Act [7 U.S.C. 4801-4819]. However, several other statutes were inadvertently listed in these rules of practice. Therefore, this rule deletes the inapplicable statutes.

The list of applicable statutes in the rules of practice for petition proceedings also needs to be revised to add three statutes that were enacted after 1995. These statutes were inadvertently omitted from the March 2002 final rule. The statutes are the Commodity Promotion, Research, and Information Act of 1996 [7 U.S.C. 7411-7425], the Hass Avocado Promotion, Research, and Information Act of 2000 [7 U.S.C. 7801-7813], and the Popcorn Promotion, Research, and Consumer Information Act [7 U.S.C. 7481-7491]. Therefore, this rule adds these statutes to the list of statutes to which the rules of practice for petition proceedings apply.

In addition, part 1200 and the subpart covering the rules of practice governing petition proceedings have used the term “research, promotion, and education programs” whereas a more accurate description of the nature and purpose of the programs is research, promotion, and information. Therefore, this rule changes “education” to “information” in the titles of Part 1200 and the petition proceedings.

It has been determined that the subparts in part 1200 should be designated Subpart A and Subpart B and that the definitions in each subpart should be arranged in alphabetical order. These changes will make Part 1200 and the rules of practice easier to identify and follow. Therefore, this rule also makes these changes.

Further, this rule removes an incorrect citation in § 1200.51(h) and makes a number of minor and non-substantive changes for clarity and uniformity of style.

The provisions of the Administrative Procedure Act concerning notice and opportunity for comment on agency rulemaking [5 U.S.C. 553] do not apply to the promulgation of agency rules of practice. Accordingly, this action is made effective one day after publication in the Federal Register . Furthermore, no substantive rule change is involved.

This rule implements the decision by the FDIC, through an internal reorganization order dated June 30, 2002 to merge certain divisions of the FDIC and, as a result, to change the names of the “Division of Supervision” and the “Division of Compliance and Consumer Affairs” to the “Division of Supervision and Consumer Protection (DSC) and the name of the “Division of Insurance” to the “Division of Insurance and Research (DIR)”. These new names more accurately reflect the breadth of the Divisions' activities as a result of the FDIC reorganization. Consistent with these name changes, this rule makes a number of changes in chapter III of title 12 of the Code of Federal Regulations. Specifically, this rule changes all references to “Division of Supervision”, and “DOS”, “Division of Compliance and Consumer Affairs”, and “DCA” wherever they appear in chapter III to the “Division of Supervision and Consumer Protection” and “DSC” respectively. In addition, the rule changes all references to “Division of Insurance” and “DOI” to the “Division of Insurance and Research” and “DIR” wherever they appear in chapter III. At a later date, the FDIC intends to make further revisions to 12 CFR chapter III to reflect other changes as a result of the reorganization and recent statutory changes.

This rule shall constitute notice that all references to the Division of Supervision (DOS), the Division of Compliance and Consumer Affairs (DCA) or the Division of Insurance (DOI) in any documents, statements, or other communications, in any form or media, and whether made before, on or after the effective date of this rule, shall be deemed to be references to the Division of Supervision and Consumer Protection (DSC) or the Division of Insurance and Research (DIR). Any actions undertaken in the name of or on behalf of the Division of Supervision (DOS), the Division of Compliance and Consumer Affairs (DCA) or Division of Insurance (DOI) whether taken before, on, or after the effective date of this rule, shall be deemed to have been taken in the name of or on behalf of the Division of Supervision and Consumer Protection (DSC) or Division of Insurance and Research (DIR) respectively.

1. This rule does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the provisions of the Paperwork Reduction Act of 1995.

2. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this rule involves a rule of agency organization, procedure, or practice. 5 U.S.C. 553(b)(B). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and opportunity for public comment are not required to be given for this rule under 5 U.S.C. or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601, et seq. ) are not applicable. Accordingly, this rule is issued in final form. Although there is no formal comment period, public comments on this rule are welcome on a continuing basis. Comments should be submitted to Thomas E. Nixon, FDIC Clearance Officer, Legal Division, 550 17th Street, NW, Washington, DC 20429, (202) 898-8766. Comments may be hand-delivered to the guard station at the rear of the 17th Street building (located on F Street) on business days between 7 a.m. and 5 p.m. [Fax number (202) 898-3838; Internet address COMMENTS@FDIC.GOV ].

For the reasons set forth in the preamble, under the authority of 12 U.S.C. 1819(a)(tenth), 12 CFR chapter III is amended as set forth below:

In 12 CFR chapter III revise all references to “Division of Supervision” and “Division of Compliance and Consumer Affairs” to read the “Division of Supervision and Consumer Protection (DSC)”, revise all references to “DOS” to read “DSC”, all references to “DCA” to read “DSC”, all references to “DOS and DCA” to read “DSC”, all references to “DOS or DCA” to read “DSC”, all references to “Division of Supervision's” to read “Division of Supervision and Consumer Protection's”, all references to Division of Compliance and Consumer Affairs”' to read “Division of Supervision and Consumer Protection's”. Also in 12 CFR chapter III revise all references to the “Division of Insurance” to read the “Division of Insurance and Research”, all references to “DOI” to read “DIR” and all references to “Division of Insurance's” to read “Division of Insurance and Research's”.

Afghanistan was added to the list of proscribed destinations at § 126.1(a) of the ITAR in the Federal Register publication of June 27, 1996 (61 FR 33313). In the Federal Register publication of May 8, 2001 (66 FR 23310) a denial policy notice was published regarding the territories of Afghanistan under Taliban control in implementation of UN Security Council Resolution 1333 (2000). UN Security Council Resolution 1390 (2002) replaced Resolution 1333 (2000), which had expired.

The Department of State is amending the ITAR to modify the denial policy regarding Afghanistan. It is the policy of the United States to deny licenses, other approvals, exports and imports of defense articles and defense services, destined for or originating in Afghanistan except for the Government of Afghanistan (currently the Afghan Interim Authority or AIA) and the International Security Assistance Force (ISAF). Further, lists of persons subject to an arms embargo due to their affiliation with the Taliban, Usama bin Laden, Al-Qaida and their associates will continue to be published in a separate notice or notices. This action is being taken in the interests of foreign policy and national security pursuant to section 38 of the Arms Export Control Act. Requests for licenses or other approvals for the Government of Afghanistan and ISAF involving items covered by the U.S. Munitions List (22 CFR Part 121) will be reviewed on a case-by-case basis.

This amendment involves a foreign affairs function of the United States and, therefore, is not subject to the procedures required by 5 U.S.C. 553 and 554. It is exempt from review under Executive Order 12866 but has been reviewed internally by the Department to ensure consistency with the purposes thereof. This rule does not require analysis under the Regulatory Flexibility Act or the Unfunded Mandates Reform Act. It has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Act of 1966. It will not have substantial direct effects on the States, the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant application of Executive Orders 12372 and 13123. However, interested parties are invited to submit written comments to the Department of State, Office of Defense Trade Controls, ATTN: Regulatory Change, Afghanistan, 2401 E. Street, NW., 12th Floor, H1200, Washington, DC 20522-0112. Such persons must be so registered with the Department's Office of Defense Trade Controls (DTC) pursuant to the registration requirements of section 38 of the Arms Export Control Act.

The authority to issue this rule is vested in the Secretary of the Interior by 5 U.S.C. 301 and 25 U.S.C. 2 and 9; and 25 U.S.C. 13, which authorizes appropriations for “Indian judges.” See Tillett v. Hodel, 730 F.Supp. 381 (W.D. Okla. 1990), aff'd 931 F.2d 636 (10th Cir. 1991 United States v. Clapox, 13 Sawy. 349, 35 F. 575 (D.Ore. 1888). This rule is published in exercise of the rulemaking authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs.

On May 3, 2001, the Bureau of Indian Affairs published a temporary rule (66 FR 22118) amending its regulations contained in 25 CFR part 11 to add the Santa Fe Indian School (SFIS) Property (Southwest Region New Mexico) to the list of Courts of Indian Offenses. This amendment established a Court of Indian Offenses for a period not to exceed one year. The purpose of establishing a Court of Indian Offenses at SFIS was to protect the lives, persons, and property of people residing at and attending or visiting the school and hospital, until the nineteen Pueblos establish a tribal court or otherwise request a CFR Court to exercise criminal jurisdiction. The SFIS property is held in trust by the Federal Government for the benefit of the nineteen Pueblos and a consensus is required to establish a tribal court that will represent all the Pueblos. The nineteen Pueblos could not reach a consensus within this initial time frame even though meetings were held with the Pueblos in an attempt to identify a sponsoring Pueblo to assume the lead in establishing a tribal court at SFIS and develop appropriate criminal codes. It does not appear likely that in the immediate future the nineteen Pueblos will reach this consensus; therefore, it is necessary for the amendment to part 11 that places the SFIS on the list of CFR Courts to become a permanent listing. The jurisdiction of this CFR Court will remain the same as published in the Federal Register on May 3, 2001 at 66 FR 22118. The Pueblos, however, will work in conjunction with the Southwest Regional Office to establish a tribal court to exercise jurisdiction at SFIS at which time the Pueblos may request the Secretary to remove the SFIS as a CFR Court.

In accordance with the requirements of the Administrative Procedure Act (5 U.S.C. 553(B)), we have determined that publishing a proposed rule would be impractical because of the potential harm that could result from the lack of a court with jurisdiction over the Santa Fe Indian School and Hospital. We are therefore publishing this change as a final rule with request for comments.

BIA has determined it appropriate to make the rule effective immediately by waiving the requirement of publication 30 days in advance of the effective date found at 5 U.S.C. 553(d). This is because of the critical need to expedite establishment of this court to fill the void in law enforcement at the Santa Fe Indian School and Indian Hospital, and the imminent increase in visitors to the grounds in question. It is in the public interest and in the interest of the Pueblos not to delay implementation of this amendment. Accordingly, this final rule is effective immediately.

We invite comments on any aspect of this rule and we will revise the rule if comments warrant. Send comments on this rule to the address in the ADDRESSES section.

In accordance with the criteria in Executive Order 12866, this rule is not a significant regulatory action. OMB makes the final determination under Executive Order 12866.

(a) This rule will not have an annual economic effect of $100 million or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. A cost-benefit and economic analysis is not required. The establishment of this Court of Indian Offenses is estimated to cost less than $200,000 annually to operate. The cost associated with the operation of this Court will be shared among the Office of Indian Education, the Bureau of Indian Affairs, and the Indian Health Service.

(b) This rule will not create inconsistencies with other agencies' actions. The Department of the Interior through the Bureau of Indian Affairs has the sole responsibility and authority to establish Courts of Indian Offenses on Indian reservations.

(c) This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. The establishment of this Court of Indian Offenses will not affect any program rights of the nineteen Pueblos. Its primary function will be to administer justice for misdemeanor offenses within the Santa Fe Indian School grounds. The court's jurisdiction will be limited to criminal offense provided in 25 CFR part 11.

(d) This rule will not raise novel legal or policy issues. The Solicitor analyzed and upheld the Department of the Interior's authority to establish Courts of Indian Offenses in a memorandum dated February 28, 1935. The Solicitor found that authority to rest principally in the statutes placing supervision of the Indians in the Secretary of the Interior, 25 U.S.C. 2 and 9, and 25 U.S.C. 13, which authorizes appropriations for “Indian judges.” The United States Supreme Court recognized the authority of the Secretary to promulgate regulations with respect to Courts of Indian Offenses in United States v. Clapox, 35 F. 575 (D.Ore. 1888).

The Department of the Interior, BIA, certifies that this rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). An initial Regulatory Flexibility Analysis is not required.

Accordingly, a Small Entity Compliance Guide is not required. The amendment to 25 CFR part 11.100(a) will establish a Court of Indian Offenses with limited criminal jurisdiction over Indians within a limited geographical area at Santa Fe, New Mexico. Accordingly, there will be no impact on any small entities in New Mexico.

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

(a) Does not have an annual effect on the economy of $100 million or more. The establishment of this Court of Indian Offenses is estimated to cost less than $200,000 annually to operate. The cost associated with the operation of this Court will be shared among the Office of Indian Education, the Bureau of Indian Affairs, and the Indian Health Service.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. This is a Court established specifically for the administration of misdemeanor justice for Indians located within the boundaries of the Santa Fe Indian School, New Mexico and will not have any cost or price impact on any other entities in the geographical region.

(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This is a Court established specifically for the administration of misdemeanor justice for Indians located within the boundaries of the Santa Fe Indian School, New Mexico, and will not have an adverse impact on competition, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

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

(a) This rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. The establishment of this Court of Indian Offenses will not have jurisdiction to affect any rights of the small governments. Its primary function will be to administer justice for misdemeanor offenses within the Santa Fe Indian School grounds. Its jurisdiction will be limited to criminal offense provided in 25 CFR part 11.

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

In accordance with Executive Order 12630, the rule does not have significant takings implications. A takings implication assessment is not required. The amendment to 25 CFR 11.100(a) will establish a Court of Indian Offenses with limited criminal jurisdiction over Indians within a limited geographical area at Santa Fe, New Mexico. Accordingly, there will be no jurisdictional basis for to adversely affect any property interest because the court's jurisdiction is solely personal jurisdiction over Indians.

In accordance with Executive Order 13132, the rule does not have significant Federalism effects. A Federalism assessment is not required. The Solicitor found that authority to rest principally in the statutes placing supervision of the Indians in the Secretary of the Interior, 25 U.S.C. 2 and 9; and 25 U.S.C. 13, which authorizes appropriations for “Indian judges.” The United States Supreme Court recognized the authority of the Secretary to promulgate regulations with respect to Courts of Indian Offenses in United States v. Clapox, 35 F. 575 (D.Ore. 1888).

In accordance with Executive Order 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. The Solicitor analyzed and upheld the Department of the Interior's authority to establish Courts of Indian Offenses in a memorandum dated February 28, 1935. The Solicitor found that authority to rest principally in the statutes placing supervision of the Indians in the Secretary of the Interior, 25 U.S.C. 2 and 9; and 25 U.S.C. 13, which authorizes appropriations for “Indian judges.” The United States Supreme Court recognized the authority of the Secretary to promulgate regulations with respect to Courts of Indian Offenses in United States v. Clapox, 35 F. 575 (D.Ore. 1888). Part 11 also requires the establishment of an appeals court; hence the judicial system defined in Executive Order 12988 will not normally be involved in this judicial process.

This regulation does not require an information collection under the Paperwork Reduction Act. The information collection is not covered by an existing OMB approval. An OMB form 83-I has not been prepared and has not been approved by the Office of Policy Analysis. No information is being collected as a result of this Court exercising its limited criminal misdemeanor jurisdiction over Indians within the exterior boundaries of the Santa Fe Indian School, New Mexico.

We have analyzed this rule in accordance with the criteria of the National Environmental Policy Act and 516 DM. This rule does not constitute a major Federal action significantly affecting the quality of the human environment. An environmental impact statement/assessment is not required. The establishment of this Court of Indian Offenses conveys personal jurisdiction over the criminal misdemeanor actions of Indians with the exterior boundaries of the Santa Fe Indian School and does not have any impact of the environment.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951) and 512 DM 2, we have evaluated potential effects on federally recognized Indian tribes and have determined that there are no potential effects. The amendment to 25 CFR 11.100(a) does not apply to any of the 562 federally recognized tribes, except the nineteen Pueblos in New Mexico that have requested the establishment of the provisional Court of Indian Offenses until such time as they establish a tribal court to provide for a law and order code and judicial system to deal with law and order on the trust land at Santa Fe Indian School. The Department of the Interior, in establishing this provisional court, is fulfilling its trust responsibility and complying with the unique government-to-government relationship that exists between the Federal Government and Indian tribes.

The background information on the IRR program, the relative need formula, the FHWA Price Trends Report, and the TEA-21 Negotiated Rulemaking process is detailed in the Federal Register notice dated February 15, 2000 (65 FR 7431).

We are publishing this final rule only for the distribution of the remaining 25 percent of fiscal year 2002 IRR funds. This rule sets no precedent for the final rule to be published as required by Section 1115 of TEA-21. On January 10, 2002, we published a temporary rule distributing 75 percent of fiscal year 2002 IRR funds (67 FR 1290).

You can find this information in the Federal Register notice dated January 10, 2002 (67 FR 1290).

In the 30-day comment period after publication of the temporary rule distributing 75 percent of fiscal year 2002 IRR program funds, we received comments from 2 commenters.

Comment: Two commenters disagreed with reserving $19.53 million for administrative capacity building. The commenters stated that providing such funds decreased the amount of IRR Program funds they would receive and that 2 percent planning funds already available were adequate for administrative capacity building.

Response: The tribal caucus recommendation was to reserve funds for administrative capacity building for fiscal year 2002 in the same manner as fiscal year 2001. The Assistant Secretary—Indian Affairs considered this tribal caucus recommendation to allow all tribes to participate in the IRR program, as an acceptable funding method for fiscal year 2001 and again proposed it only for fiscal year 2002 in the temporary rule. This rule sets no precedent for the final rule to be published as required by Section 1115 of TEA-21.

Yes. The remaining 25 percent of fiscal year IRR program funds distributed under this rule includes the $19.53 million reserved for administrative capacity building and other eligible transportation activities. These funds will be distributed until August 15, 2002, based on approved self-determination contracts or applicable self-governance agreements or requests by direct services tribes to the appropriate BIA region for BIA to perform administrative capacity building for them. After August 15, 2002, any undistributed funds reserved for administrative capacity building will be distributed to the appropriate BIA regions using the relative need formula.

Upon publication of this rule, the Secretary will distribute the remaining 25 percent (approximately $61.9 million) of fiscal year 2002 IRR program funds based on the current relative need formula used in fiscal years 2000, 2001 and in the first distribution in fiscal year 2002. From this 25 percent the Secretary is reserving $19.53 million to distribute for administrative capacity building by the process described in the January 10, 2002, temporary rule. We are using the latest indices from the FHWA Price Trends Report with appropriate modifications for non-reporting states in the relative need formula distribution process.

Under the criteria in Executive Order 12866, this rule is not an economically significant regulatory action because it will not have an annual effect of more than $100 million on the economy. The total amount available for distribution of fiscal year 2002 IRR program funds is approximately $226 million and we are distributing approximately $61.9 million under this rule. Congress has already appropriated these funds and FHWA has already allocated them to BIA. The cost to the government of distributing the IRR program funds, especially under the relative need formula with which the tribal governments and tribal organizations and the BIA are already familiar, is negligible. The distribution of fiscal year 2002 IRR program funds does not require tribal governments and tribal organizations to expend any of their own funds. This rule is consistent with the policies and practices that currently guide our distribution of IRR program funds. This rule continues to adopt the relative need formula that we have used since 1993, adjusting the FHWA Price Trends Report indices for states that do not have current data reports. This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another Federal agency. The FHWA has transferred the IRR program funds to us and fully expects the BIA to distribute the funds according to a funding formula approved by the Secretary. This rule does not alter the budgetary effects on any tribes from any previous or any future distribution of IRR program funds and does not alter entitlement, grants, user fees, or loan programs or the rights or obligations of their recipients. This rule does not raise novel legal or policy issues. It is based on the relative need formula in use since 1993. We are changing determination of relative need only by appropriately modifying the FHWA Price Trend Report indices for states that did not report data for the FHWA Price Trends Report, just as we did for the second partial distribution of fiscal years 2000 and 2001 IRR program funds and the first partial distribution of fiscal year 2002 IRR funds.

Approximately 1400 road and bridge construction projects are at various phases that depend on this fiscal year's IRR program funds. Leaving these ongoing projects unfunded will create undue hardship on tribes and tribal members. Lack of funding would also pose safety threats by leaving partially constructed road and bridge projects to jeopardize the health and safety of the traveling public. Thus, the benefits of this rule far outweigh the costs. This rule is consistent with the policies and practices that currently guide our distribution of IRR program funds. This rule continues to adopt the relative need formula that we have used since 1993.

A Regulatory Flexibility analysis under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) is not required for this rule because it applies only to tribal governments, not state and local governments.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act, because it does not have an annual effect on the economy of $100 million or more. We are distributing approximately $61.9 million under this rule. Congress has already appropriated these funds and FHWA has already allocated them to BIA. The cost to the government of distributing the IRR program funds, especially under the relative need formula with which tribal governments, tribal organizations, and the BIA are already familiar, is negligible. The distribution of the IRR program funds does not require tribal governments and tribal organizations to expend any of their own funds. This rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. Actions under this rule will distribute Federal funds to Indian tribal governments and tribal organizations for transportation planning, road and bridge construction, and road improvements. This rule does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign based enterprises. In fact, actions under this rule will provide a beneficial effect on employment through funding for construction jobs.

Under the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ), this rule will not significantly or uniquely affect small governments, or the private sector. A Small Government Agency Plan is not required. This rule will not produce a federal mandate that may result in an expenditure by State, local, or tribal governments of $100 million or greater in any year. The effect of this rule is to immediately provide the remaining 25 percent of fiscal year 2002 IRR program funds to tribal governments for ongoing IRR activities and construction projects.

With respect to Executive Order 12630, the rule does not have significant takings implications since it involves no transfer of title to any property. A takings implication assessment is not required.

With respect to Executive Order 13132, the rule does not have significant Federalism implications to warrant the preparation of a Federalism Assessment. This rule should not affect the relationship between state governments and the Federal government because this rule concerns administration of a fund dedicated to IRR projects on or near Indian reservations that has no effect on Federal funding of state roads. Therefore, the rule has no Federalism effects within the meaning of Executive Order 13132.

This rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988. This rule contains no drafting errors or ambiguity and is clearly written to minimize litigation, provide clear standards, simplify procedures, and reduce burden. This rule does not preempt any statute. We are still pursuing the TEA-21 mandated negotiated rulemaking process. The rule is not retroactive with respect to any funding from any previous fiscal year (or prospective to funding from any future fiscal year), but applies only to the remaining 25 percent of fiscal year 2002 IRR program funding.

The Paperwork Reduction Act does not apply because this rule does not impose record keeping or information collection requirements or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget under 44 U.S.C. 501 et seq. We already have all of the necessary information to implement this rule.

This rule is categorically excluded from the preparation of an environmental assessment or an environmental impact statement under the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq. , because its environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and the road projects funded as a result of this rule will be subject later to the National Environmental Policy Act process, either collectively or case-by-case. Further, no extraordinary circumstances exist to require preparation of an environmental assessment or environmental impact statement.

Pursuant to the President's Executive Order 13175 of November 6, 2000, “Consultation and Coordination with Indian Tribal Governments,” we have consulted with tribal representatives throughout the negotiated rulemaking process and in developing this rule. The TEA-21 Negotiated rulemaking committee's tribal caucus presented a consensus recommendation to the Assistant Secretary for distribution of fiscal year 2002 IRR program funds. We have evaluated any potential effects on federally recognized Indian tribes and have determined that there are no potential adverse effects and have determined that this rule preserves the integrity and consistency of the relative need formula process we have used since 1993 to distribute IRR funds. We are making a change from previous years (which we also made for fiscal years 2000, 2001, and the first part of fiscal year 2002 IRR program funds (see Federal Register notices at 65 FR 37697 and 66 FR 17073)) to modify the FHWA Price Trends Report indices for non-reporting states which do not have current price trends data reports. The yearly FHWA Report is used as part of the process to determine the cost-to-improve portion of the relative need formula. As in fiscal year 2001, this rule will provide for up to $35,000 per tribe for administrative capacity building and other eligible transportation activities by reserving $19.53 million from this distribution. Consultation with tribal governments and tribal organizations is ongoing as part of the TEA-21 negotiated rulemaking process and this distribution uses the TEA-21 Negotiated Rulemaking Committee's tribal caucus recommendation.

When a lessee obtains an oil and gas lease on the OCS, MMS regulations allow the lessee flexibility to schedule activities during the primary term. At the end of the primary term, the lease can continue in force only by production, suspension, drilling, or well reworking operations as approved by the Secretary of the Interior. MMS regulations at 30 CFR 250.168-177 authorize suspensions before discovery of oil or gas in paying quantities only in limited circumstances. Generally, when a lease reaches the end of the primary term, the lessee must conduct drilling operations until it has made a discovery of oil or gas and a commitment to proceed to development and production.

Although lessees have made great progress in imaging potential objectives in areas under salt sheets, processing, analyzing, and interpreting geophysical, geological, and other relevant data and information is complex and time-consuming. As a result, lessees have been faced with the end-of-lease-term decisions to either allow the lease to expire or drill a well without sufficient geophysical information.

On December 21, 2000, MMS issued a Notice to Lessees (NTL) 2000-G22, Subsalt Lease Term Extension. That NTL provides for an extension of lease terms for subsalt exploration in cases where the lessee has drilled a well on the lease during the primary term but needs additional time to process geophysical data before drilling another well. The NTL did not provide additional time to process geophysical data in cases where a well had not been drilled. This rule authorizes MMS to grant a suspension for a lease when the operator has conducted timely analysis and interpretation of the geophysical data that may ultimately lead to a drilling objective but, due to the complexity of the salt sheet, needs additional time to complete the geophysical analysis before drilling.

MMS published a proposed rule on January 9, 2002 (67 FR 1171). The public comment period ended on February 8, 2002. Seven interested parties responded with comments and recommendations during the comment period. Commenters agreed with the need to encourage drilling in areas under salt sheets and supported the change, although they made specific recommendations about the rule and its implementation.

Comments: One commenter noted that the effect of the regulation will delay the commencement of drilling on the lease. He asked that MMS closely scrutinize requests made under the rule to ensure that lessees are diligently working toward drilling activities.

Response: We agree with the commenter that this rule should be applied only to the limited set of circumstances detailed in the rule, with the ultimate goal being development of the lease. It is for this reason that the provision includes specific details with regard to eligibility and diligence.

Comments: One commenter encouraged MMS to establish a 10-year lease term for all leases in the Gulf of Mexico (GOM). The rationale given was that capital commitment and technical complexities warrant a 10-year lease. Another commenter requested consideration of broader changes in leasehold management, lease term extension, and unit formation. The rationale was that the changes are needed to tap the vast potential in the GOM.

Response: The MMS appreciates the concerns expressed by all commenters. However, these comments are outside the scope of this rulemaking and were not adopted.

Comments: Several commenters were uncertain of the definition of the western GOM and others recommended that the rule apply to the entire OCS, not just to the western GOM. Since granting of a suspension of operations is discretionary, the commenter thought that limiting the rule to one geographical area was unnecessary.

Response: To avoid confusion and to provide the discretion needed to avoid premature drilling of wells if these conditions were found to exist in other areas, we have removed the clause limiting the rule to the western GOM.

Comments: One commenter recommended that the suspension not be limited to 3 years. Another commenter recommended that the provision clarify that a lessee can receive more than one suspension on a lease.

Response: Lessees who apply for a suspension will be required to specify the activities leading to the drilling of a subsalt well and, if the suspension is granted, it will be for a length of time warranted to complete specified activities. If in the course of completing the specified work, the lessee encounters further complications and needs additional time, the lessee may apply for additional suspensions under the provision. MMS expects that a suspension of even 3 years will be very unusual. However, since we will only be giving the time necessary to complete the proposed activity, we have eliminated the 3-year maximum and will determine the appropriate length of suspensions on a case-by-case basis. When not otherwise specified, suspensions under MMS regulations are for a maximum of 5 years as specified in 30 CFR 250.170(a) and can be obtained multiple times when warranted.

Comment: One commenter recommended that the rule apply to a variety of salt structures other than salt sheets.

Response: We did not make this change. Companies have historically operated near salt structures, and it is not our intention to provide more time for all companies who find potential discoveries near a salt structure. This provision is intended to specifically address the needs of companies who are exploring in deep areas under or near a salt sheet.

Comments: Several commenters made recommendations concerning the specific wording of the proposed rule. In § 250.175(b)(2), one commenter recommended that “collected” be changed to “acquired” to recognize that some lessees will be purchasing or licensing rather than collecting data and that “analyzed” be changed to “interpreted” to be more representative of the work. Another commenter recommended that the rule be modified to clarify that the provision applies to leases already beyond the third year. The commenter read the rule to imply that leases beyond their third year when the rule becomes effective will not be eligible for a suspension under the new provision.

Response: Any lessee will be eligible to apply for a suspension under the new provision. We revised the wording from “collected” to “ acquired” and replaced “analyzed” with “interpreted.” All lessees who hold leases that meet the requirements of the provision and are active at the time this rule becomes effective, or are issued after that date, will be eligible to apply for the suspension.

Comment: One commenter recommended that the 3-year period in § 250.175(b)(2), during which lessees must complete specified geophysical work, be lengthened by the length of any suspensions of operations received during the 3 years.

Response: In rare cases where a suspension is directed within the first 3 years of a primary term, the suspension would not be expected to require the lessee to delay geophysical work. We therefore have not adopted the commenter's suggestion.

Comments: Several commenters made recommendations concerning the discussion of § 250.175(b)(3) in the preamble to the proposed rule which stated that as a measure of whether the lessee has conducted timely analysis of geophysical information, MMS will require the lessee to have collected and analyzed geophysical information (i.e., full 3-D depth migration beneath the salt sheet and over the entire lease area) before the end of the third lease year. The commenters stated that either (1) 3-D “time” migration, rather than depth migration, be acceptable as the seismic activity reasonably expected to have been concluded with the first 3 years of the lease term; or (2) the lessee commit financially (by contract) to perform a depth migration before the end of the third year. The preamble also stated that the lessee must have completed additional data reprocessing before MMS will grant a suspension. The commenters wanted more time to complete the pre-stack depth migration because conducting the interpretations prematurely would limit the information that would be gained from the depth migration.

Response: We did not accept this suggested change. Prior to encountering complications due to the salt sheet, the lessee should be on a schedule to drill in the primary term. The complications being addressed by this rule would not be apparent until after the lessee has completed the depth migration. If the lessee is not on a schedule to complete the depth migration by the end of the third year, then our experience has shown that the schedule would not provide for drilling during a 5-year primary term. In considering whether the interpretation of geophysical information is timely, MMS will require the lessee to have acquired and interpreted geophysical information (i.e., full 3-D depth migration beneath the salt sheet and over the entire lease area) before the end of the third lease year. This is consistent with the criteria included in the preamble to the proposed rule, and this criterion has been included in the final rule at § 250.175(b)(3).

Comment: A commenter recommended that because of the uncertainty of contractor availability, the criteria for timely analysis be that the lessee had issued a contract for depth migration rather than to have completed the depth migration by the end of the third year.

Response: MMS did not make this change. Contractors conduct a significant portion of OCS operations. Whether the work is drilling a well or conducting geophysical exploration, the lessee is ultimately responsible for the timeliness of the contractor's activities.

Comment: In § 250.175(b)(3), commenters recommended that the word “confirms” be changed to “indicates” to better reflect the geophysical phase of exploration and the term “beneath the salt sheet” be modified to recognize that a drillable objective may not be entirely under the salt sheet.

Response: We revised the final rule to reflect these recommendations, which are found in § 250.175(b)(2).

Comments: In § 250.175(b)(4), commenters recommended changing “completing” to “completing or nearing the completion of” to not penalize a company who is diligent but has not completed a specific interpretation, and adding “covering all or a portion of the applicable geophysical area” to allow the lessee to concentrate on special areas of interest.

Response: We revised the final rule to address these recommendations and to place the emphasis on the information that justifies the application.

Comment: One commenter recommended that § 250.175(b)(5) be changed to allow time to determine the best location to drill and to plan the well.

Response: MMS recognizes that determining the best location to drill and planning the well are necessary steps to be taken prior to drilling. If a lessee meets the conditions necessary to receive a suspension of operations, the lessee, in accordance with § 250.171(b), will submit a request that includes a schedule of activities leading up to commencement or restoration of the suspended activity. In this case, the lessee would include a schedule leading up to the commencement of drilling. If that schedule includes a reasonable length of time for determining a location to drill and planning the well, then the length of the suspension will, if granted, include time for those activities.

In § 250.175(b)(5), the text was revised to reflect changes made in other paragraphs.

This document is not a significant rule as determined by the Office of Management and Budget (OMB) and is not subject to review under Executive Order 12866.

Over the next 5 years, MMS anticipates that companies would make three to five requests each year under the rule. We estimate that in three of the cases each year, this new rule will prevent unnecessary drilling of wells that may not otherwise have been drilled had the geophysical interpretation been sufficient. Depending on the water depth and the well depth, we estimate that drilling each well, on average, would have cost $10 million. Selective suspensions will help reduce potential environmental impact and produce approximately $30 million in private sector savings.

(1) This rule will not have an annual effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.

(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. Issuance of a suspension for a lease does not interfere with the ability of other agencies to exercise their authority.

(3) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. This rule will have no effect on the rights of the recipients of entitlements, grants, user fees, or loan programs.

(4) This rule does not raise novel legal or policy issues.

The Department of the Interior (DOI) certifies that this rule will not have a significant economic effect on a substantial number of small entities under the RF Act (5 U.S.C. 601 et seq. ).

This rule may directly or indirectly affect lessees and operators of leases on the OCS. This includes about 130 different companies. These companies are generally classified under the North American Industry Classification System (NAICS) code 211111, which includes companies that extract crude petroleum and natural gas. For this NAICS code classification, a small company is one with fewer than 500 employees. Based on these criteria, we estimate that about 70 percent of these companies are considered small. We expect few, if any, of the small companies to apply for a suspension under this rule. This is because the wells that will be drilled into the subsalt areas are expected to be drilled to depths sometimes in excess of 30,000 feet. These wells will be substantially more expensive than the average well on the OCS. As stated earlier, the costs of the wells are expected to average $10 million. Some small companies may benefit by being included in partnerships with larger companies that are exploring in the subsalt areas.

Your comments are important. The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small business about Federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the enforcement actions of MMS, call toll-free 1-888-734-3247. You may comment to the Small Business Administration without fear of retaliation. Disciplinary action for retaliation by an MMS employee may include suspension or termination from employment with the Department of the Interior.

This rule is not a major rule under the SBREFA (5 U.S.C. 804(2)). This rule:

(1) Does not have an annual effect on the economy of $100 million or more.

(2) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(3) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises.

We do not expect this rule to have a significant effect because, as discussed above, this rule will have a positive effect on the private sector of approximately $30 million per year in avoided costs.

The PRA provides that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves a collection of information and assigns a control number, you are not required to respond. The revisions to 30 CFR 250, subpart A, refer to, but do not change the information collection requirements in the current regulations. OMB has approved the referenced information collection requirements under OMB control number 1010-0114, current expiration date of September 30, 2002. The rule includes no new reporting or recordkeeping requirements, and an OMB form 83-I submission to OMB under the PRA is not required.

With respect to Executive Order 13132, the rule does not have Federalism implications. This rule does not substantially and directly affect the relationship between the Federal and State governments. To the extent that State and local governments have a role in OCS activities, this rule does not affect that role.

With respect to Executive Order 12630, the rule does not have significant Takings implications. A Takings Implication Assessment is not required. The rulemaking is not a governmental action capable of interfering with constitutionally protected property rights.

This rule is not a significant rule and is not subject to review by OMB under Executive Order 12866. The rule may have a small positive effect on energy supplies.

With respect to Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Executive Order.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. The DOI has established that “issuance and/or modification of regulations” is considered a categorically excluded action, as it results only in administrative effects causing no significant impacts on the environment. Therefore, this action will not require preparation of an environmental assessment or impact statement. MMS has determined that this action does not represent an exception to the categorical exclusion. A detailed statement under NEPA is not required.

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the UMRA (2 U.S.C. 1531 et seq. ) is not required.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The permit application was not received in time to publish an NPRM followed by a final rule before the necessary effective date. Delaying this rule would be contrary to the public interest of ensuring the safety of spectators and vessels during this event and immediate action is necessary to prevent possible loss of life or property. The Coast Guard has not received any complaints or negative comments previously with regard to this event.

A temporary safety zone is necessary to ensure the safety of vessels and spectators from the hazards associated with a fireworks display. Based on recent accidents that have occurred in other Captain of the Port zones, and the explosive hazard of fireworks, the Captain of the Port Detroit has determined fireworks launches in close proximity to watercraft pose significant risks to public safety and property. The likely combination of large numbers of recreational vessels, congested waterways, darkness punctuated by bright flashes of light, alcohol use, and debris falling into the water could easily result in serious injuries or fatalities. Establishing a safety zone to control vessel movement around the locations of the launch platforms will help ensure the safety of persons and property at these events and help minimize the associated risks.

The safety zone will encompass all waters of the Saginaw River surrounding two fireworks launch platforms bounded by the arc of a circle with a 300-yard radius with each center in approximate positions 43°35′55″ N, 083°53′40″ W (off Veterans Park) and 43°35′55″ N, 083°53′30″ W (off Wenonah Park). The geographic coordinates are based upon North American Datum 1983 (NAD 83). The size of this zone was determined using the National Fire Prevention Association guidelines and local knowledge concerning wind, waves, and currents.

All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene patrol representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Detroit or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed this rule under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary. This determination is based on the minimal time that vessels will be restricted from the safety zone.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard considered whether this rule would have a significant impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which might be small entities: The owners or operators of commercial vessels intending to transit or anchor in the activated safety zone.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This safety zone is only in effect from 10 p.m. until 11 p.m. on the days of the event and allows vessel traffic to pass outside of the safety zone. Before the effective period, the Coast Guard will issue maritime advisories widely available to users of the Saginaw River by the Ninth Coast Guard District Local Notice to Mariners and Marine Information Broadcasts. Facsimile broadcasts may also be made.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), the Coast Guard wants to assist small entities in understanding this rule so that they can better evaluate its effects and participate in the rulemaking process. If the rule will affect your small business, organization, or governmental jurisdiction, and you have questions concerning its provisions or options for compliance, please contact Marine Safety Office Detroit (see ADDRESSES ).

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

The Coast Guard has analyzed this rule under Executive Order 13132, Federalism, and has determined that this rule does not have implications for federalism under that Order.

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

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

The Coast Guard has analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

The Coast Guard has considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph (34)(g) of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it 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.

The Coast Guard has analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that Order, because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The Coast Guard is issuing this temporary final rule, effective June 21, 2002, to provide for the security of Naval Submarine Base Bangor.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Additionally, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exist for making this rule effective less than 30 days after publication in the Federal Register .

On May 30, 2002, we issued a final rule canceling the fixed security zone around U.S. Naval Submarine Base Bangor and moving security zones around U.S. Naval submarines while underway on Puget Sound, and the Strait of Juan De Fuca, WA and adjoining waters. (67 FR 37687). This fixed security zone was canceled because regulations issued by another Federal agency would become effective at that time to provide adequate security to safeguard U.S. Naval Submarine Base Bangor and U.S. Naval submarines from sabotage, other subversive acts, or accidents, and otherwise protect Naval assets vital to national security. It has come to light that the new regulations that were to go into effect on June 20, 2002, to provide for the security of Naval Submarine Base Bangor will not be in effect until some time after 20 June 2002. Because of this, we are establishing a temporary final rule that will provide for the continued security of Naval Submarine Base Bangor. Publishing an NPRM would be contrary to public interest since immediate action is necessary to ensure the security of Naval assets.

The Coast Guard will establish a temporary fixed security zone around Naval Submarine Base Bangor, WA. The Coast Guard determined it was necessary to prevent access to this area in order to safeguard this U.S. Naval base from sabotage, other subversive acts, or accidents, and otherwise protect this U.S. Naval asset vital to national security. Events such as the bombing of the USS Cole highlight the fact that there were hostile entities operating with the intent to harm U.S. national security by attacking or sabotaging Naval assets including those in Puget Sound. The events of September 11, 2001, demonstrated that there were real, credible, and immediate threats to U.S. national security.

The Coast Guard, through this temporary final rule, will assist the U.S. Navy in protecting vital national security assets by establishing a security zone to exclude persons and vessels from the immediate vicinity of U.S. Naval Submarine Base Bangor. Entry into this zone is prohibited unless authorized by the Captain of the Port or his designee. This security zone is patrolled and enforced by Coast Guard and Navy personnel.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). We expect the economic impact of this temporary final rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary. This expectation is based on the fact that the regulated area established by this temporary final rule is of such a small area as to be of no significant economic impact.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), we considered whether this rule would have a significant economic impact on a substantial number of small entities. “Small entities” include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. This temporary final rule will not affect any small entities. Because the impacts of this temporary final rule are expected to be minimal, the Coast Guard certifies under 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) that this temporary final rule will not have a significant economic impact on a substantial number of small entities.

If you believe that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment ( see ADDRESSES ) explaining why you believe it qualifies and how and to what degree this temporary final rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the temporary final rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the ( FOR FURTHER INFORMATION CONTACT ) section.

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

We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This temporary final rule would not impose an unfunded mandate.

This temporary final rule would not effect a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This temporary final rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian tribal governments, because it 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.

We considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph (34)(g) of Commandant Instruction M16475.lC, this temporary final rule is categorically excluded from further environmental documentation.

A Categorical Exclusion is provided for security zones. A Categorical Exclusion Determination and an Environmental Analysis Checklist were prepared for the identical, previous security zone issued as regulation [CGD13-01-015]. We have determined that nothing has changed since the preparation of this Categorical Exclusion Determination and Environmental Analysis Checklist. Therefore, both remain in effect and valid for this rule. A Categorical Exclusion Determination and an Environmental Analysis Checklist are available in the docket at the location specified under the ADDRESSES portion of this rulemaking.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(3), the Coast Guard finds that good cause exists for not publishing an NPRM. Due to the date the Applications for Approval of Marine Event were received, there was insufficient time to draft and publish an NPRM. The Staten Island Yankees safety zone will have minimal impact on the waterway. Vessels may still transit through the eastern 260 yards of the 600-yard wide New Jersey Pierhead Channel, and the southern 360 yards of the 400-yard wide Kill Van Kull during the events. The zone will only be enforced for 1 and a half hours; vessels can be given permission to transit the zone for all but about 20 minutes during this time. Additionally, vessels would not be precluded from mooring at or getting underway from commercial or recreational piers in the vicinity of the zone.

The Midland Beach safety zone will have minimal impact on Lower New York Bay. Vessels may still transit around the zone during the event. The zone will only be enforced for 1 and a half hours; vessels can be given permission to transit the zone for all but about 20 minutes during this time. Additionally, vessels would not be precluded from mooring at or getting underway from commercial or recreational piers in the vicinity of the zone.

The Museum of Modern Art safety zone will have minimal impact on the East River. Vessels may still transit through the eastern 350 feet, and the 350 feet between the western boundary of these safety zones and the eastern boundary of the United Nations security zone, of the 780-yard wide East River during the event. The zone will only be enforced for 1and a half hours; vessels can be given permission to transit the zone for all but about 20 minutes during this time. Additionally, vessels would not be precluded from mooring at or getting underway from commercial or recreational piers in the vicinity of the zone.

An annual safety zone has been published for the Conference House Park fireworks on the Arthur Kill in 33 CFR 165.161 effective on July 3, 4, and 5. The date for this year's event has been moved to July 6, 2002. The zone will only be enforced for 1 and a half hours; vessels can be given permission to transit the zone for all but about 20 minutes during this time. Further, it is an annual, local event, and recreational vessels may still transit through the western 45 yards of the 625-yard wide Arthur Kill during the event.

Under 5 U.S.C. 553(d)(3), the Coast Guard further finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Any delay encountered in this regulation's effective date would be unnecessary and contrary to public interest since immediate action is needed to close the waterways and protect the maritime public from the hazards associated with fireworks launched from a barge in the area.

The Coast Guard has received an application to hold a fireworks program on the waters of the New Jersey Pierhead Channel and Kill Van Kull. This rule establishes a safety zone in all waters of the New Jersey Pierhead Channel and Kill Van Kull within a 180-yard radius of the fireworks barge in approximate position 40°39′13.5″ N 074°04′39.1″ W (NAD 1983), about 125 yards southeast of the New Jersey Pierhead South Entrance Lighted Gong Buoy 1 (LLNR 37010). The safety zone will be enforced from 8 p.m. until 9:30 p.m. on Saturday, June 22, and Thursday, July 4, 2002. The safety zone prevents vessels from transiting a portion of the New Jersey Pierhead Channel and Kill Van Kull and is needed to protect boaters from the hazards associated with fireworks launched from a barge in the area. Marine traffic will still be able to transit through the eastern 260 yards of the 600-yard wide New Jersey Pierhead Channel and through the southern 360 yards of the 400-yard wide Kill Van Kull during these events. Additionally, vessels would not be precluded from mooring at or getting underway from commercial or recreational piers in the vicinity of the zone. Public notifications will be made prior to the event via the Local Notice to Mariners and Marine Information Broadcasts.

The size of this safety zone was determined using National Fire Protection Association and New York City Fire Department standards for six inch mortars fired from a barge, combined with the Coast Guard's knowledge of tide and current conditions in the area.

The Coast Guard has received an application to hold a fireworks program on the waters of Lower New York Bay. This rule establishes a safety zone in all waters of Lower New York Bay within a 300-yard radius of the fireworks barge in approximate position 40°34′12.0″ N 074°04′29.6″ W (NAD 1983), about 800 yards southeast of Midland Beach. The safety zone will be enforced from 8:30 p.m. until 10 p.m. on Saturday, June 29, 2002. If the event is cancelled due to inclement weather, then this safety zone will be enforced from 8:30 p.m. until 10 p.m. on Sunday, June 30, 2002. The safety zone prevents vessels from transiting a portion of Lower New York Bay and is needed to protect boaters from the hazards associated with fireworks launched from a barge in the area. Marine traffic will still be able to transit around the zone during this event. Additionally, vessels would not be precluded from mooring at or getting underway from commercial or recreational piers in the vicinity of the zone. Public notifications will be made prior to the event via the Local Notice to Mariners.

The size of this safety zone was determined using National Fire Protection Association and New York City Fire Department standards for 10 inch mortars fired from a barge, combined with the Coast Guard's knowledge of tide and current conditions in the area.

The Coast Guard has received an application to hold a fireworks program on the waters of the East River. This rule establishes two safety zones in all waters of the East River within a 180-yard radius of the fireworks barge in approximate position 40°44′51.4″ N 073°57′42.9″ W (NAD 1983), about 215 yards southeast of Roosevelt Island and all waters bound by the following points: 40°44′53.7″ N 073°57′49.3″ W; thence to 40°45′06.8″ N 073°57′39.1″ W; thence to 40°45′00.7″ N 073°57′27.0″ W; thence to 40°44′48.1″ N 073°57′37.3″ W; (NAD 1983), thence to the point of origin, between the fireworks barge and the southern 295 yards of Roosevelt Island. These safety zones will be enforced from 8 p.m. until 10 p.m. on Saturday, June 29. The safety zones prevent vessels from transiting a portion of the East River and are needed to protect boaters from the hazards associated with fireworks launched from a barge in the area. Marine traffic will still be able to transit through the eastern 350 feet, and the 350 feet between the western boundary of these safety zones and the eastern boundary of the United Nations security zone, of the 780-yard wide East River during the event. Additionally, vessels would not be precluded from mooring at or getting underway from commercial or recreational piers in the vicinity of the zones. Public notifications will be made prior to the event via the Local Notice to Mariners and Marine Information Broadcasts.

The size of these safety zones was determined using National Fire Protection Association and New York City Fire Department standards for 6 inch mortars fired from a barge, combined with the Coast Guard's knowledge of tide and current conditions in the area.

The Coast Guard has received an application to hold a fireworks program on the waters of the Arthur Kill. This rule establishes a safety zone in all waters of the Arthur Kill within a 300-yard radius of the fireworks barge in approximate position 40°30′18″ N 074°15′30″ W (NAD 1983), about 300 yards west of Conference House Park, Staten Island. The safety zone will be enforced from 8:30 p.m. until 10 p.m. on Saturday, July 6, 2002. If the event is cancelled due to inclement weather, then this safety zone will be enforced from 8:30 p.m. until 10 p.m. on Sunday, July 7, 2002. The safety zone prevents vessels from transiting a portion of the Arthur Kill and is needed to protect boaters from the hazards associated with fireworks launched from a barge in the area. Recreational vessels will still be able to transit through the western 45 yards of the 625-yard wide Arthur Kill during this event. Additionally, recreational vessels would not be precluded from mooring at or getting underway from piers in the vicinity of the zone. Public notifications will be made prior to the event via the Local Notice to Mariners and Marine Information Broadcasts.

The size of this safety zone was determined using National Fire Protection Association and New York City Fire Department standards for 10 inch mortars fired from a barge, combined with the Coast Guard's knowledge of tide and current conditions in the area.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.

This finding is based on: The minimal time that vessels will be restricted from the zones; the Conference House Fireworks is an annual, local event; recreational vessels may still transit around the zones during the events; the zones are only in effect for 1 and a half hours; and vessels can be given permission to transit the zone for all but about 20 minutes during this time. Advance notifications will be made to the local maritime community by the Local Notice to Mariners and marine information broadcasts.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the New Jersey Pierhead Channel, Lower New York Bay, East River, and the Arthur Kill during the times these zones are activated.

These safety zones will not have a significant economic impact on a substantial number of small entities for the following reasons: The Conference House Fireworks is an annual, local event; recreational vessels may still transit around the zones during these events; commercial vessels may still transit around all the zones except in the Arthur Kill; the zones are only in effect for 1 and half hours; and vessels can be given permission to transit the zone for all but about 20 minutes during this time. We will ensure wide dissemination of maritime advisories to users of the New Jersey Pierhead Channel, Lower New York Bay, East River, and the Arthur Kill via Local Notice to Mariners and marine information broadcasts.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

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

This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that might disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it 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.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that Order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We have considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph 34(g), of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. This rule fits paragraph 34(g) as it establishes five safety zones. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The permit application was not received in time to publish an NPRM followed by a final rule before the necessary effective date. Delaying this rule would be contrary to the public interest of ensuring the safety of spectators and vessels during this event and immediate action is necessary to prevent possible loss of life or property. The Coast Guard has not received any complaints or negative comments previously with regard to this event.

A temporary safety zone is necessary to ensure the safety of vessels and spectators from the hazards associated with a fireworks display. Based on recent accidents that have occurred in other Captain of the Port zones, and the explosive hazard of fireworks, the Captain of the Port Detroit has determined fireworks launches in close proximity to watercraft pose significant risks to public safety and property. The likely combination of large numbers of recreational vessels, congested waterways, darkness punctuated by bright flashes of light, alcohol use, and debris falling into the water could easily result in serious injuries or fatalities. Establishing a safety zone to control vessel movement around the location of the launch platform will help ensure the safety of persons and property at these events and help minimize the associated risk.

The safety zone will encompass all waters of the Detroit River surrounding the fireworks launch platform bounded by the arc of a circle with a 300-yard radius with its center in approximate position 42°10′4″ N, 083°09′3″ W. The geographic coordinates are based upon North American Datum 1983 (NAD 83). The size of this zone was determined using the National Fire Prevention Association guidelines and local knowledge concerning wind, waves, and currents.

All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene patrol representative. Entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port Detroit or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed this rule under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary. This determination is based on the minimal time that vessels will be restricted from the safety zone.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard considered whether this rule would have a significant impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which might be small entities: The owners or operators of commercial vessels intending to transit or anchor in the activated safety zone.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This safety zone is only in effect from 9 p.m. until 10:30 p.m. the day of the event and allows vessel traffic to pass outside of the safety zone. Before the effective period, the Coast Guard will issue maritime advisories widely available to users of the Detroit River by the Ninth Coast Guard District Local Notice to Mariners, and Marine Information Broadcasts. Facsimile broadcasts may also be made.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard wants to assist small entities in understanding this rule so that they can better evaluate its effects and participate in the rulemaking process. If the rule will affect your small business, organization, or governmental jurisdiction, and you have questions concerning its provisions or options for compliance, please contact Marine Safety Office Detroit ( see ADDRESSES ).

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

The Coast Guard has analyzed this rule under Executive Order 13132, Federalism, and has determined that this rule does not have implications for federalism under that Order.

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

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

The Coast Guard has analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

The Coast Guard has considered the environmental impact of this proposed rule and concluded that, under figure 2-1, paragraph (34)(g) of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it 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.

The Coast Guard has analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that Order, because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The Phoenix area is classified as a “serious” PM-10 nonattainment area and violates both the annual PM-10 standard of 50 μg/m 3 and the 24-hour standard of 150 μg/m 3 . 40 CFR 50.6. Between 1997 and 2001, Arizona has made several SIP submittals that collectively address the CAA's planning requirements for serious PM-10 nonattainment areas for both PM-10 standards. We have acted on these submittals in several rulemakings. For more background on the Phoenix PM-10 SIP and our actions on it, please see 65 FR 19964, 19965 (April 13, 2000) and 66 FR 50252, 50253 (October 2, 2001) and the Technical Support Documents for those actions.

In today's action, we are concerned with the Phoenix PM-10 SIP's provisions for attaining the 24-hour standard. In May, 1997, ADEQ submitted the Plan for Attainment of the 24-hour PM-10 Standard—Maricopa County PM-10 Nonattainment Area, as a SIP revision. This plan, known as the microscale plan, included attainment and RFP demonstrations for the 24-hour PM-10 standard at the Salt River air quality monitoring site as well as three other “microscale” monitoring sites in the Phoenix area (Maryvale, Gilbert, and West Chandler). The demonstration for the Salt River site showed that, with additional controls adopted by the local air quality agency, the Maricopa County Environmental Services Department, attainment at the site would occur by May 1998. We approved the attainment and RFP demonstrations for the Salt River site and Maricopa County's controls on August 4, 1997. See 62 FR 41856. Since the microscale plan, Arizona has made no other submittals that address the 24-hour exceedances at the Salt River site.

According to its approved attainment demonstration, the Salt River site should not have violated the 24-hour PM-10 standard after May, 1998. See 62 FR 31026, 31035. The site, however, continues to violate the standard. 1 Based on data recorded in EPA's Aerometric Information Retrieval System (AIRS), the Salt River monitor had 51 expected exceedances in 1999, 43 expected exceedances in 2000, and 19 expected exceedances through 3 quarters in 2001 or an average of at least 37 expected exceedances per year over the past three years. The 24-hour PM-10 standard is violated when the expected number of exceedances averages more than 1 per year over a three year period. See 40 CFR 50.6(a). Thus the continuing violations at the Salt River monitor clearly show that the existing attainment demonstration for the site is faulty.

To assure that SIPs provide for timely attainment, section 110(k)(5) authorizes EPA to find that a SIP is substantially inadequate to meet an CAA requirement, and to require (“call for”) the State to submit, within a specified period not to exceed 18 months, a SIP revision to correct the inadequacy. This requirement for a SIP revision is known as a “SIP call.”

On April 18, 2002 at 67 FR 19148, we published our proposed finding that the Arizona SIP is inadequate to assure attainment of the 24-hour PM-10 standard at the Salt River Site. Based on this proposed finding, we also proposed a SIP call that would require Arizona to revise its SIP to correct the deficiency and submit the corrections no later than 18 months after the publication of the final rule. We requested comments on our proposals and provided a 30-day comment period, which closed on May 20, 2002. We received no comments.

Because the attainment demonstration approved into the Phoenix area PM-10 SIP in 1997 is faulty and there has been no substitute attainment demonstration submitted to date, we find that the Phoenix area PM-10 SIP is substantially inadequate to attain the 24-hour PM-10 standard at the Salt River site. Therefore, pursuant to CAA section 110(k)(5), we require the State of Arizona to submit a revision to the Phoenix area SIP that corrects this deficiency and complies with all other applicable CAA requirements as described below.

We set the date for submitting the revisions to the Salt River attainment demonstration and related provisions described below as 18 months after the effective date of the final rule, or February 2, 2004.

To fully respond to this SIP call for the Salt River attainment demonstration, Arizona will need to submit the following:

(a) A demonstration based on air quality modeling that the plan will provide for attainment no later than December 31, 2006 at the Salt River site. CAA sections 189(b)(1)(A) and 188(e).

(b) Provisions for implementing BACM as expeditiously as practicable for all sources or source categories that contribute significantly to exceedances of the 24-hour PM-10 standard in the Salt River area. CAA section 189(b)(1)(B). 2 In the SIP revision, Arizona need only provide for the implementation of BACM for those significant sources or source categories for which we have not already approved BACM.

(c) A demonstration that the revised SIP includes, and provides for expeditious implementation of, the most stringent measures (MSM) found in the implementation plan or achieved in practice that are feasible for the Phoenix nonattainment area for each significant source or source category for which we have not already approved a MSM showing.

(d) A demonstration that the revised SIP provides for reasonable further progress in the Salt River area. The SIP revision must also provide for quantitative milestones for the Salt River area which are to be achieved every 3 years and which are consistent with the RFP demonstration. To be consistent with the serious area plan, the milestone dates should be December 31, 2003 and December 31, 2006.

The SIP revision must also meet the general requirements applicable to all SIPs including reasonable notice and public hearing under section 110(l), necessary assurances that the implementing agencies have adequate personnel, funding and authority under section 110(a)(2)(E)(i) and 40 CFR 51.280 to carry out the SIP; and the description of enforcement methods for the adopted controls as required by 40 CFR 51.111.

Finally, any controls adopted to demonstrate attainment at the Salt River site or to meet the BACM or MSM requirements must be applied to all similar sources in the Phoenix nonattainment area.

If Arizona fails to submit the required SIP revisions in response to a final SIP call, we are required to issue a finding that the State failed to make a required SIP submittal under section 179(a), a finding which starts an 18 month clock for the implementation of sanctions under the CAA and a two year clock for a federal implementation plan. See 40 CFR 52.31.

The Office of Management and Budget has exempted this regulatory action from Executive Order 12866, Regulatory Planning and Review.

This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under 12866.

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. This rule is not subject to Executive Order 13045 because it is not an economically significant regulatory action under Executive Order 12866.

Executive Order 13132, “Federalism” (64 FR 43255, August 10, 1999) requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs on the States, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. This SIP call is required by the Clean Air Act because the current SIP is substantially inadequate to attain the 24-hour PM-10 standard. Arizona's direct compliance costs will not be substantial because the SIP call requires Arizona to submit only those revisions necessary to address the SIP deficiency and applicable Clean Air Act requirements. Finally, EPA has consulted with the State and local agencies prior to making this SIP call.

This 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, because it is in keeping with the relationship and the distribution of power and responsibilities between EPA and the States as established by the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” Executive Order 13175 does not apply to this rule because this rule will not effect any tribal government or any tribal lands and thus will have no tribal implications.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any proposed rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule, if finalized, will not have a significant economic impact on a substantial number of small entities. For the reasons described in the proposal, EPA certified that this action does not have a significant impact on a substantial number of small entities. See 67 FR 19148, 19151.

Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to private sector, of $100 million or more in any one year. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements for any rule requiring a budgetary impact statement. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that this rule does not include a Federal mandate that may result in estimated costs of $100 million or more in any one year to either State, local, or tribal governments in the aggregate, or to the private sector and has therefore not prepared a budgetary impact statement. This proposed rule, if finalized, will not significantly or uniquely impact any small governments.

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

In making a finding of SIP deficiency, EPA's role is to review existing information against previously established standards (in this case, what constitutes a violation of the 24-hour PM-10 standard). In this context, there is no opportunity to use VCS. Thus, the requirements of NTTAA section 12(d) (15 U.S.C. 272 note) do not apply to this rule.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 3, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On April 5, 2002, we published a direct final rule (67 FR 16614) and a parallel proposal (67 FR 16625) amending the national emission standards for the portland cement manufacturing industry (40 CFR part 63, subpart LLL). The amendments made improvements for implementation of the standards, primarily in the areas of applicability, testing, and monitoring, to resolve issues and questions raised since promulgation of the rule on June 14, 1999.

We stated in the preamble to the direct final rule and parallel proposal that if we received significant material adverse comment by May 6, 2002, on one or more distinct provisions of the direct final rule, we would publish a timely withdrawal of those distinct provisions in the Federal Register . We subsequently received adverse comments on seven of the amendments:

• § 63.1340(c), related to applicability of the rule to crushers at portland cement plants with on-site nonmetallic mineral processing facilities;

• § 63.1344(a)(3), related to the temperature operating limit for an in-line kiln/raw mill equipped with an alkali bypass;

• § 63.1349(e)(3), related to requirements associated with preparation for, and conduct of, a new performance test if a source anticipates making an operational change that may adversely affect compliance with an applicable dioxin/furan (D/F) emission standard;

• § 63.1350(a)(4)(v) through (vii), related to visible emission monitoring of a totally enclosed conveying system transfer point; and

• § 63.1350(c)(2)(i), (d)(2)(i), and (e), related to operating conditions during daily visual opacity observations by Method 9 (40 CFR part 60, appendix A) and daily visual emissions observations by Method 22 (40 CFR part 60, appendix A).

Accordingly, these seven amendments are withdrawn as of July 2, 2002. We will take final action on the proposed rule after considering the comments received. We will not institute a second comment period on this action. The seventeen provisions for which we did not receive adverse comment will become effective on July 5, 2002, as provided in the preamble to the direct final rule.

Ambrosia is a genus comprising 35 to 50 wind-pollinated annual and perennial plant species in the Asteraceae (sunflower) family. The perennial taxa range from woody shrubs to herbaceous plants with rhizome-like roots. Rhizomes are underground stems that produce leafy shoots. Self-pollination and self-fertility contribute to strong inbreeding among species of Ambrosia (Payne 1976). Members of the genus occur predominantly in the Western Hemisphere, especially North America. Species are generally found in arid or semiarid areas and some are weeds of cultivated fields or strand species of Pacific and Caribbean beaches.

Ambrosia pumila (San Diego ambrosia) was originally described as Franseria pumila by Thomas Nuttall (Nuttall 1840) based on a specimen he collected near San Diego, California, in 1836. Asa Gray (Gray 1882), after seeing specimens of the plant with fruits, decided it was closely related to members of the genus Ambrosia and published the currently accepted combination, Ambrosia pumila (Nutt.) A. Gray. This classification has been recognized by current systematic and floristic treatments (Payne 1964, Munz 1935, Keck 1959, Ferris 1960, Munz 1974, Beauchamp 1986, and Payne 1993).

Ambrosia pumila is an herbaceous perennial plant species that spreads vegetatively by means of slender, branched, underground rhizome-like roots from which the aerial (above-ground) stems arise. Plants that spread in this way are referred to as clonal species. This clonal growth pattern results in groupings of aerial stems interconnected by their underground rhizome-like roots that represent genetically identical individuals. When these underground interconnections disintegrate, aerial stems that are genetically identical are physically separate. The aerial stems sprout in early spring after the winter rains. Dead aerial stems may persist or deteriorate after their growing season. Therefore, the plant may not be in evidence at some times of the year. The aerial stems sprout in early spring after the winter rains and deteriorate in late summer. Therefore, the plant may not be in evidence from late summer to early spring. The aerial stems are 5 to 30 centimeters (cm) (2 to 12 inches (in)) tall, but may grow to 50 cm (20 in), and are densely covered with short hairs. The leaves are two to four times pinnately divided into many small segments and are covered with short, soft, gray-white, appressed (lying flat on surface) hairs. This wind-pollinated species flowers from May through October with separate male and female flower clusters (heads) on the same plant. The male flowers are yellow to translucent and are borne in clusters on terminal racemes (flower stalks). The female flowers have no petals and are yellowish-white. Female flowers are in clusters in the axils of the leaves below the male flower clusters.

Although some species of Ambrosia have breeding systems that contribute to strong inbreeding (Payne 1976), the breeding system of A. pumila has not been studied. The fruiting heads are enclosed by involucres (composed of modified leaf-like structures fused together) to form cup-like structures that have no spines, although some reports note a few vestigial (remnant) spines. Few preserved museum specimens have fertile fruits, and field collections have not provided evidence of production of significant numbers of viable seeds. None of the 22 seeds collected from three sites at Mission Trails Regional Park germinated in a test performed by Ransom Seed Laboratory (City of San Diego 2000). Although plants may flower, the annual reproductive output of fruits may be low. The lifespan of an individual plant, as well as the number and distribution of seedlings, are unknown. A. pumila may be distinguished from other species of Ambrosia in the area by its herbaceous perennial growth form, leaves which are two to four times pinnately divided, cup-like involucres lacking hooked spines, and lack of longer, stiff hairs on the stems and leaves.

Because Ambrosia pumila is a clonal species, it is difficult to determine the extent of an individual plant. Individual plants persist as a herbaceous rhizome-like root systems. These underground systems are likely intermingled at any given site. Each year a plant produces a variable number of aerial stems along its rhizome-like root system. The underground interconnections may deteriorate over time leaving genetically identical separate plants that represent clones. Thus, survey reports that record the number of “plants” at a site are in fact reporting the numbers of aerial stems that represent an unknown number of genetically distinct plants. Because this species is a clonal plant, the number of genetically different individuals in any given occurrence, especially small occurrences, may be very low. Small occurrences of A. pumila may be more susceptible to harmful effects from inbreeding, especially if only a portion of the population flowers in any given year (Barrett and Kohn 1991). Seven of the 15 extant occurrences that support 1,000 or fewer aerial stems may potentially be susceptible to extirpation (localized extinction) because of low number of aerial stems or low genetic diversity within the occurrences. There are, as yet, no data to determine a correlation between the genetic diversity and extirpations of occurrences of this species in the past that were not attributed to habitat loss. Preliminary results comparing greenhouse-grown specimens from two native populations of A. pumila indicated that there were fixed differences between specimens from the two populations represented in this study (H. Truesdale, San Diego State University Biology Department (SDSU), in litt. 2000). While the clonal structure of the populations is not known, these preliminary results indicate the importance of maintaining each of the separate occurrences to preserve the genetic variability represented in each of the occurrences.

Ambrosia pumila primarily occurs on upper terraces of rivers and drainages as well as in open grasslands, openings in coastal sage scrub, and occasionally in areas adjacent to vernal pools. The species may also be found in disturbed sites such as fire fuel breaks and edges of dirt roadways. Associated native plants include Distichlis spicata (saltgrass), Baccharis salicifolia (mule-fat), Baccharis sarathroides (broom baccharis), Eriogonum fasciculatum (California buckwheat), and Eremocarpus setigerus (turkey-mullein). In the United States, populations of A. pumila occur on Federal, State, local jurisdictional, and private lands in western San Diego and Riverside Counties.

This species has been previously reported from 49 occurrences in the United States (California Natural Diversity Database (CNDDB) 1999). The California Department of Fish and Game (CDFG) defines the term occurrence for plants as single plants, a population, or group of nearby populations found within 0.25 miles (mi) (0.4 kilometer (km)) of each other (R. Bittman, CDFG, in litt. 2002). Since publication of the proposed rule, additional information concerning an additional historical occurrence in the Arlington area of the City of Riverside in Riverside County, has become available (Provance et al. 2001). Also, an extant occurrence that supports six concentrations of aerial stems was found in the Alberhill area of Riverside County (Hewitt and McGuire 2000). Two occurrences, one northwest of Sweetwater Dam and another near Gillespie Field, were combined with other adjacent occurrences because of their close proximity. Six occurrences were based on misidentified specimens. Three occurrences consist of plants transplanted from other locations that were subsequently partially or totally eliminated (CNDDB 1999).

Based on the analysis of this current information, we believe that there are 40 verifiable native reported occurrences of this species. However, 21 of these 40 occurrences have been extirpated, most since the 1930s and nearly all by urban development and highway construction. One of these 21 occurrences, an occurrence near Graves Avenue in the City of El Cajon, San Diego County, that was included as extant in the listing proposal, has been extirpated by commercial and housing development (C. Burrascano, in litt. 2001). Of the remaining 19 extant occurrences, 2 were based on old collections where the species has not been documented since 1936 (CNDDB 1999), including the recently reported historical occurrence in the City of Riverside (Provance et al. 2001) which no longer exists. One occurrence, near a city sidewalk, reduced to a single stem in 1996 (CNDDB 1999), is considered non-viable and therefore is not considered as an extant occurrence. Subtracting these 4 occurrences, we now believe that there are 15 extant native occurrences of this species, 12 are in San Diego County and 3 are in western Riverside County. Knowledge of the full extent of the historical range of any organism is limited by the surviving records. In the case of Ambrosia pumila in San Diego County, the pattern of extirpated occurrences reflects a significant loss of occurrences from each of the watersheds in which the species occurs rather than a complete loss from those watersheds. The pattern in Riverside County is different in that the recently discovered record of a historical occurrence reflects a significant loss to the geographical extent of the range in that county.

Five of the 12 remaining occurrences of Ambrosia pumila in San Diego County are within the Sweetwater River watershed; a sixth near El Cajon was apparently extirpated in 1999 or 2000. Two of the five occurrences are in the San Diego National Wildlife Refuge (SDNWR). The largest occurrence, in the northern portion of the SDNWR, was reported to cover 5.6 hectares (ha) (13.8 acres (ac)) and supported tens of thousands of aerial stems in 1998 (CNDDB 1999). Recent surveys by Service biologists reported this occurrence to be 1.4 ha (3.5 ac) in 1999 and 1.3 ha (3.2 ac) in 2000 (GIS database Carlsbad Fish and Wildlife Office). Differences in the acreage may be due to different survey methods or the scope of the surveys. Numbers of aerial stems present were not recorded. The second occurrence on the SDNWR was reported to support aerial stems in 1996. A survey of the second occurrence in 1998 (J. Vanderwier, USFWS, in litt. 1998) reported that this site covered less than 0.1 ha (less than 0.1 ac) and supported hundreds of aerial stems (CNDDB 1999). Another occurrence on private land near the junction of Jamul Road and Steele Canyon Road was reported to be 0.1 ha (0.3 ac) in size in 1996, and less than 0.1 ha (less than 0.1 ac) in 1998 (CNDDB 1999; J. Vanderwier, in litt. 1998). Numbers of aerial stems have not been reported in the various surveys of this site. The 1998 survey indicated an unknown number of stems at this site and the extension of this occurrence to accommodate a few plants nearby to the northeast. This extension was recognized as a separate occurrence that supported about 100 stems in 1998 (CNDDB 1999). The remaining occurrence in the Sweetwater River watershed in El Cajon is on adjacent vacant lots totaling less than 0.1 ha (0.1 ac) owned by California Department of Transportation (Caltrans) and supported an estimated 10,000 stems in 1997 (J. Vanderwier, in litt. 1997). A. pumila is still present on these Caltrans owned lots (B. April, Caltrans, pers. comm., 2002). Caltrans purchased these lots in the 1960s as right-of-way for the proposed connector between I-5 and I-8. This proposal, although still part of the Regional Transportation Plan, is not funded and at some point in the future Caltrans may auction off the parcels (B. April, pers. comm., 2002). In the proposed listing rule we included an additional occurrence in El Cajon on a group of vacant lots 1.9 ha (4.8 ac) in size that supported 6,500 plants (aerial stems) in 1998 (CNDDB 1999). This occurrence was apparently extirpated by development (C. Burrascano, in litt. 2001).

Three of the 12 occurrences in San Diego County are within the San Diego River watershed. The largest of these occurrences is in Mission Trails Regional Park (MTRP), managed by the City of San Diego, and extends to adjacent private land. The portion of the occurrence on MTRP occupied 13.6 ha (34 ac) and supported 1,500 stems in 1994 (CNDDB 1999). One of the areas in MTRP identified as Patch C encompasses 1.0 ha (2.5 ac) (City of San Diego 2000). A portion of that patch, identified as C6 and calculated to be 0.7 ha (1.7 ac), supported approximately 178,624 aerial stems in 2001 (City of San Diego 2001). The adjacent privately owned portion of this occurrence is afforded protections under the City of San Diego's Subarea Plan of the Multiple Species Conservation Program (MSCP) (City of San Diego 1997). The second occurrence within the San Diego River watershed and also in MTRP supports an unknown number of individuals (CNDDB 1999). Both occurrences in MTRP are afforded protection under provisions of City of San Diego's Subarea Plan (City of San Diego 1997). The third occurrence within the San Diego River watershed occurs at Gillespie Field, a small general aviation airport, where there are small remnants of the native occurrence scattered near the south side of the airfield. The current status of these remnants is unknown.

One of the 12 occurrences in San Diego County is within the San Dieguito River watershed in the County of San Diego's Subarea Plan area of the MSCP on a privately owned site. In 1997, 2,000 stems were reportedly found in a less than 0.1 ha (0.1 ac) area (CNDDB 1999). During a site visit in 1999 fewer than 100 stems were found in an area estimated to be less than 0.1 ha (less than 0.1 ac) (G. Wallace, USFWS, in litt. 1999). The uphill slope immediately adjacent to the site was graded in conjunction with a residential development (G. Wallace, in litt. 1999).

The three remaining occurrences in San Diego County are within the San Luis Rey River watershed near Bonsall. Two occur within the planning boundary of the North County MSCP Subarea Plan. These may receive protection if this plan is approved. At one occurrence, some plants are presumed extant in a fenced area on Caltrans lands adjacent to State Route 76, and some are on private land. However, the current number of aerial stems or the areal extent of this occurrence is not known. The second occurrence in the area is estimated to be 2.6 ha (6.6 ac) in size and reportedly supported about 700 aerial stems in 1996. The third occurrence is within the planning area for the Multiple Habitat Conservation Plan (MHCP) on private and Caltrans lands near Bonsall and reportedly supported 2,000 to 3,000 aerial stems in 1997 (CNDDB 1999). The areal coverage of the eight patches at this occurrence was calculated to be less than 0.1 ha (0.2 ac) in 2000 (American Realty Trust, Inc. 2002).

The three extant occurrences known from Riverside County are on privately owned lands. One occurrence, along Nichols Road in the City of Lake Elsinore, supported an estimated 3,400 stems in 1997; a westward extension of the Nichols Road occurrence was documented by a specimen collected in 2001 and deposited in the Herbarium at Rancho Santa Ana Botanic Garden (RSA), Claremont, CA. Another occurrence at a biological preserve at Skunk Hollow supported about 100 to 300 stems in 1998 (B. McMillan, USFWS, in litt. 1999). Since publication of the proposed rule to list Ambrosia pumila, an additional occurrence has been located near Alberhill (Hewitt and McGuire 2000). This occurrence is about 3.5 km (2.1 mi) to the northwest of the Nichols Road site and reportedly consists of about 12,800 aerial stems in six concentrations, with most of the stems in a single concentration (Hewitt and McGuire 2000). Also, since the listing proposal, a specimen documenting a historical occurrence in the Arlington area of the City of Riverside, Riverside County has been reported (Provance et al. 2001).

The current documented range of Ambrosia pumila in Mexico extends from Colonet south to Lake Chapala in north-central Baja California. Two of the three documented sites were confirmed by D. Hogan, Southwest Center for Biological Diversity (now Center for Biological Diversity ) and C. Burrascano, San Diego Chapter, California Native Plant Society (CNPS) (1996). Although additional occurrences may exist in Baja California Mexico, the species is not considered to be widespread because of the lack of appropriate habitat and impacts from agriculture and urban development, especially near the coast.

Federal Government action on this species began pursuant to section 12 of the Act, which directed the Secretary of the Smithsonian Institution to prepare a report on those plants considered to be threatened, endangered, or extinct in the United States. This report, designated House Document No. 94-51, was presented to Congress on January 9, 1975. Ambrosia pumila was not included in this document. A revision of the Smithsonian report (Ayensu and DeFilipps 1978) provided new lists based on additional data on taxonomy, geographic range, and endangered status of taxa, as well as suggestions of taxa to be included or deleted from the earlier listing. A. pumila, not included in the first Smithsonian report, was recommended for threatened status in the Ayensu and DeFilipps (1978) report. We published an updated Notice of Review (NOR), on December 15, 1980 (45 FR 82479). This notice included A. pumila as a category 1 candidate species. Category 1 candidate species were taxa for which we had sufficient information on biological vulnerability and threats to support preparation of listing proposals.

The 1978 Smithsonian report (Ayensu and DeFilipps 1978), which included Ambrosia pumila , was accepted as a petition. Section 2(b)(1) of the 1982 amendments to the Act required that all petitions pending on October 13, 1982, be treated as having been newly submitted on that date. Section 4(b)(3)(B) of the Act further requires the Secretary to make findings on petitions within 12 months of their receipt. Consequently, on October 13, 1983, we found that the petitioned listing of this species was warranted but precluded by other pending listing actions, in accordance with section 4(b)(3)(B)(iii) of the Act. Notification of this finding was published in the Federal Register on January 20, 1984 (49 FR 2485). Such a finding requires the petition to be recycled annually, pursuant to section 4(b)(3)(C)(i) of the Act. On November 28, 1983, we published a supplement (48 FR 53639) to the December 15, 1980, NOR of plant taxa for listing. In this NOR, the status of A. pumila was changed to a category 2 candidate species. Category 2 candidate species were taxa for which information then in our possession indicated that proposing to list the taxa as endangered or threatened was possibly appropriate, but for which substantial data on biological vulnerability and threats were not currently known or on file to support proposed rules. The status of A. pumila remained unchanged through, and including, the September 30, 1993 NOR (58 FR 51143). On February 28, 1996, we published an NOR (61 FR 7595). In that notice we announced changes to the way we identify species that are candidates for listing under the Act that included our discontinuance of the maintenance of a list of species that were previously identified as category 2 candidates. Thus, as a category 2 candidate, A. pumila was not included in the February 28, 1996, NOR.

On January 9, 1997, we received a petition dated November 12, 1996, from the Southwest Center for Biological Diversity and the San Diego Chapter of the California Native Plant Society, requesting that Ambrosia pumila be listed as endangered pursuant to section 4 of the Act. Additionally, the petition appealed for emergency listing pursuant to section 4(b)(7) of the Act. The petitioners further requested that critical habitat be designated for A. pumila concurrent with the listing pursuant to 50 CFR 424.12 and the Administrative Procedure Act (5 U.S.C. 553). On January 23, 1997, we notified the petitioners that we received their petition and that it would be processed based on the listing priority guidance then in effect.

Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition presents substantial information indicating that the action may be warranted. To the maximum extent practicable, this finding should be made within 90 days of the receipt of the petition and it should be published promptly in the Federal Register . If we determine that listing the species may be warranted, section 4(b)(3)(B) of the Act requires us to make a finding within 12 months of the date of the receipt of the petition on whether the petitioned action is (a) not warranted, (b) warranted, or (c) warranted but precluded from immediate proposal by other pending proposals of higher priority. However, because of budgetary restraints, we processed petitions in accordance with the 1997 listing priority guidance published in the Federal Register on December 5, 1996 (61 FR 64475). This guidance identified four tiers of listing activities to be conducted by us with appropriate funds. Tier 1, the highest priority, covered emergency listings of species facing an imminent risk of extinction as defined under the emergency listing provisions of section (4)(b)(7) of the Act. Tier 2, the second priority, included processing of final determinations for species currently proposed for listing. Tier 3, the third priority, addressed efforts under the Act to resolve the conservation status of candidate species and process administrative findings on petitions to add species to the lists or reclassify threatened species to endangered status. Tier 4, the lowest priority, covered the processing of critical habitat determinations, delisting actions, and reclassification of endangered species to threatened status. Under the priority system and because of the backlog of species proposed for listing and awaiting final listing determinations at that time, we deferred action on listing petitions except where an emergency existed and where the immediacy of the threat was so great to a significant portion of the population that the routine listing process would not be sufficient to prevent large losses that might result in extinction.

We reviewed the petition and supporting documentation to determine whether Ambrosia pumila warranted emergency listing pursuant to section 4(b)(7) of the Act. On July 15, 1997, we concluded that emergency listing and the designation of critical habitat were not warranted, and that the petition should be processed as a Tier 3 priority task pursuant to the listing priority guidance for fiscal year 1997 (61 FR 64475). On October 23, 1997, a notice published in the Federal Register (62 FR 55268), announced the extension of the fiscal year 1997 listing priority guidance until such time as the fiscal year 1998 appropriation bill for the Department of the Interior became law and new final guidance was published in the Federal Register . In this notice there were no changes made in the tier system.

On October 1, 1998, Southwest Center for Biological Diversity and the California Native Plant Society filed a lawsuit in the United States District Court for the Southern District of California, challenging our failure to produce timely administrative 90-day and 12-month findings for Ambrosia pumila.

On May 8, 1998, new listing priority guidance for Fiscal Years 1998 and 1999 was published in the Federal Register (63 FR 25502). This new guidance changed the four-tier priority system to a three-tier priority system. Highest priority, Tier 1, was assigned to processing emergency listing rules for any species determined to face a significant and imminent risk to its well-being. Second priority, Tier 2, was processing final decisions on proposed listings; resolving the conservation status of candidate species; the processing of administrative findings on petitions to add species to the lists, and petitions to delist species, or reclassify species; and delisting and reclassifying actions. Lowest priority, Tier 3, was the processing of proposed or final critical habitat designations. Under that guidance, the administrative review process for this petition fell under Tier 2. We published a 90-day finding on the petition to list Ambrosia pumila as endangered in the Federal Register (64 FR 19108) on April 19, 1999. We found that substantial information existed indicating listing may be warranted and solicited comments and information regarding the finding. However, we did not receive any comments by May 19, 1999, the close of the comment period. On October 28, 1999, the District Court (Case No. 98-CV-1785 J(RBB)) ordered us to complete a 12-month finding for A. pumila on or before December 10, 1999.

On December 9, 1999, we sent the proposed rule to list Ambrosia pumila as endangered to the Federal Register . On December 29, 1999, it was published (64 FR 72993). This proposed rule constituted the 12-month finding on the petition. In the proposed rule we indicated that designation of critical habitat was prudent for A. pumila, but we did not propose critical habitat at that time because of budgetary constraints and our current listing priority guidance. Due to limited resources and the need to undertake other, higher-priority listing actions, the Service was unable to make a final determination for this species within the 12-month statutory timeframe provided pursuant to the Act. In August 2001, the Department of the Interior reached an agreement in principle with the Center for Biological Diversity, Southern Appalachian Biodiversity Project, and the California Native Plant Society on a timeframe to make final listing determinations for 14 species, including A. pumila. The agreement was formalized in October 2001 ( Center for Biological Diversity, et al. v. Norton, Civ. No. 01-2063 (JR) (D.D.C.). The publication of the final rule to list A. pumila complies with the terms of that court-approved settlement agreement.

In our December 29, 1999, proposal to list Ambrosia pumila as endangered (64 FR 72993), we requested that all interested parties provide information concerning the status and distribution of the species and threats to the species and its habitat. During the 60-day comment period that closed on February 28, 2000, we contacted appropriate Federal and State agencies, county and city governments, scientific organizations, and other interested parties and requested comments on the proposal. In addition, legal notices announcing the publication of the proposed rule and opening of the public comment period were published in the North County Times and The San Diego Union-Tribune on January 6, 2000, and in the Riverside Press Enterprise, on January 7, 2000. We received no requests for a public hearing during the public comment period. We received two letters during the comment period, one from the petitioner and one from a peer reviewer. The comments provided information regarding the condition of several of the occurrences of the species and are incorporated in this final rule. On March 30, 2000, in response to a request, we reopened the comment period (65 FR 16869) for this proposed action for an additional 60 days, until May 30, 2000. No further comments were received during the reopened comment period.

In accordance with interagency policy published on July 1, 1994 (59 FR 34270), we solicited the expert opinions of three independent specialists regarding pertinent scientific or commercial data and assumptions relating to the taxonomic, biological, and ecological information for Ambrosia pumila presented in the proposed rule. The purpose of such a review is to ensure that listing decisions are based on scientifically sound data, assumptions, and analyses, including the input of appropriate experts. We received peer review comments from one of the persons contacted. The peer reviewer stated that the proposed action to list A. pumila as endangered was clear and complete. The peer reviewer also included some statements about translocations carried out for the species. Those comments are incorporated in this final rule where appropriate. There were no other responses to our requests for peer review of this listing action.

Where applicable, we have incorporated factual information provided by the commenters in this final rule. Other statements or comments are addressed below.

Comment 1: The commenter stated that two additional populations have been reported for Riverside County, bringing the total to four known occurrences in Riverside County.

Our Response: Two new occurrences have been reported since the publication of the proposed rule in December 1999. A new historical occurrence of the species is based on a voucher specimen from the Herbarium of Riverside Community College. The specimen, which was verified by Andrew Sanders, Curator of the Herbarium at UCR, was collected in 1940 in the Arlington area of the City of Riverside (Provance et al . 2001). The other occurrence is near Alberhill where a series of six subpopulations supporting over 12,000 aerial stems was reported in 2000 (Hewitt and McGuire 2000). Currently, we are aware of three extant occurrences in Riverside County.

Comment 2: The commenter did not think transplantation of Ambrosia pumila plants from a Caltrans site in the Sweetwater River drainage to a site in Penasquitos Canyon, a different watershed, or to multiple sites, was an appropriate use of those plants.

Our Response: Transplantation has been used to salvage plants where the occurrence was to be totally or partially extirpated. The above-mentioned activities were carried out by Caltrans in the summer of 1996, as a mitigation measure for the unavoidable extirpation of Ambrosia pumila associated with construction of State Route 125/54. This was done prior to publication of the proposed rule to list the species. As part of the recovery planning process, protocols for the collection and use of salvaged materials will be developed, taking into account the reproductive biology and clonal structure of A. pumila. In collecting material for propagation, consideration must be given to maximize genetic variation and equal numbers of progeny should be obtained from each line (Given 1994). Caution will be used in employing translocation, relocation, and reintroduction as mitigation for project impacts (CDFG 1991).

Section 4 of the Act and implementing regulations (50 CFR Part 424) set forth the procedures for adding species to the Federal list of endangered and threatened species. We may determine that a species is endangered or threatened due to one or more of the five factors described in section 4(a)(1) of the Act. These factors and their application to Ambrosia pumila are as follows.

A. The present or threatened destruction, modification, or curtailment of its habitat or range. Twenty-one of the 40 documented native occurrences of this species are believed to have been extirpated by human activities, including, but not limited to, urban development as well as highway and utility corridor construction and maintenance (CNDDB 1999). Of the remaining 19 occurrences, the occurrence adjacent to a sidewalk in National City (CNDDB 1999) was not considered viable because of the small size of the population, and three additional occurrences have not been verified in many years. Five of the remaining 15 extant native occurrences, including 3 of the larger occurrences, are threatened with habitat destruction associated with highway expansion or highway rights-of-way maintenance activities including mowing (CNDDB 1999). Three known extant occurrences are within the San Luis Rey River watershed and are potentially threatened by highway maintenance and expansion of State Route 76 (CNDDB, 1999). Since issuance of a Notice of Preparation (NOP) in 1999 regarding widening of State Route 76, the scope of the project has been reduced and Caltrans has recently had internal scoping meetings to discuss alternatives (J. D'Elia, USFWS, in litt. 2002). One of these occurrences is west of the Bonsall Bridge and reportedly supported 2,000 to 3,000 stems in 1997 (CNDDB). While this occurrence is within the boundary of a proposed project on Jeffries Ranch, (along the south side of State Route 76), current project design avoids all of this occurrence (American Realty Trust, Inc. 2002). However, the occurrence is still threatened by highway expansion along the northern boundary of the property. A portion of this same occurrence was inadvertently impacted in 1996 by a San Diego Gas and Electric (SDG&E) utility project. The species was found on the site during the latter stages of planning for the project. Some of the aerial stems were salvaged by Pacific Southwest Biological Services, Inc. and have been maintained for future translocation. Ambrosia pumila still occurs at this locality. We have recently received a request from SDG&E for assistance in replanting the A. pumila at this site (Sempra Energy in litt. 2001). One of the five remaining occurrences within the Sweetwater River watershed, near El Cajon, reportedly supports more that 1,000 stems, and is potentially threatened by highway construction (CNDDB 1999) although no project is currently funded for the site (B. April, pers. comm., 2002). In Riverside County, highway expansion or highway and utility rights-of-way maintenance threaten a large occurrence (500 to 1,000 stems reported in 1998) along Nichols Road near Lake Elsinore (CNDDB 1999).

Development of recreational facilities has also affected Ambrosia pumila (CNDDB 1999). One occurrence that reportedly supported 2,000 aerial stems in 1997 was apparently significantly degraded by the construction of a golf course near Del Dios Highway in the San Dieguito River watershed, San Diego County (G. Wallace, in litt. 1999). Fewer than 100 aerial stems were found on the site which was less than 0.1 ha (less than 0.1 ac) in size (G. Wallace, in litt. 1999). Construction of a campground facility in MTRP by the City of San Diego resulted in the loss of less than 0.1 ha (0.1 ac) or 10 percent of this major population. This impact was the anticipated loss allowable under provisions of the City of San Diego's MSCP Subarea Plan (City of San Diego 1997). Biological monitoring, a requirement of MSCP, is in place and biologists periodically evaluate the status of this species and make management recommendations.

Urban development continues to threaten this species. A large occurrence in the City of El Cajon that reportedly supported 6,500 stems of Ambrosia pumila in 1998 (CNDDB 1999) was apparently extirpated by commercial and residential development (C. Burrascano, in litt. 2001). In Riverside County, the recently reported occurrence near Alberhill (reportedly supporting about 13,000 aerial stems in 2000) is threatened by development associated with the Alberhill Sports and Entertainment project (Hewitt & McGuire 2000).

B. Overutilization for commercial, recreational, scientific, or educational purposes. Overutilization is not known to be a factor affecting Ambrosia pumila at this time. The potential threat to this species from over-collection may increase upon publication of this rule, although we are not aware of any incidents of collection of this species resulting from the proposal to list A. pumila as an endangered species. This species has been offered for sale locally, however, the source of the material is unknown (J. Bartel and B. McMillan, USFWS, pers. comm., 1999; CNPS, in litt. 2000).

C. Disease or predation. Disease and predation are not known to be factors affecting this plant species.

D. The inadequacy of existing regulatory mechanisms. Existing regulatory mechanisms that could currently provide some protection for this species include (1) Federal laws and regulations including the National Environmental Policy Act (NEPA), the Endangered Species Act in those cases where this species occurs in habitat occupied by other listed species, the Fish and Wildlife Coordination Act, and section 404 of the Federal Clean Water Act; (2) State laws, including the Native Plant Protection Act (NPPA), California Endangered Species Act (CESA), California Environmental Quality Act (CEQA), and section 1603 of the California Fish and Game Code; (3) local land use processes and ordinances; and (4) protection under Mexican laws.

NEPA (42 U.S.C. 4321 to 4347) requires disclosure of the environmental effects of projects within Federal jurisdiction. NEPA requires that the project alternatives include recommendations for protecting, restoring, and enhancing the environment. NEPA does not, however, require that the lead agency select an alternative with the least significant impact to the environment, nor does it prohibit implementing a proposed action in an environmentally sensitive area (40 CFR 1500 et seq. ).

The Endangered Species Act (Act) may afford protection to Ambrosia pumila if it co-occurs with species already listed as threatened or endangered. A number of federally listed species are known to or are likely to co-occur within the range of A. pumila. Protection afforded by these species through sections 7 and 10 of the Act, however, is minimal due to the lack of significantly overlapping habitat requirements. These species include the endangered least Bell's vireo ( Vireo bellii pusillus ) and the threatened coastal California gnatcatcher ( Polioptila californica californica ). These species are not known to consistently co-occur in the same vegetation communities with A. pumila although they may occur in nearby associated communities.

The Fish and Wildlife Coordination Act and section 404 of the Clean Water Act may afford some protection to Ambrosia pumila where it occurs in waters of the United States that require a permit from the U.S. Army Corps of Engineers (Corps). Under section 404 of the Clean Water Act, the Corps regulates the discharge of fill material into waters of the United States, which may include terraces of streams where A. pumila is found. Through the Fish and Wildlife Coordination Act, we may recommend discretionary conservation measures to avoid, minimize, and offset impacts to fish and wildlife resources resulting from a water development project authorized by the Corps. Section 404 regulations require that applicants obtain a nationwide, regional, or individual permit for projects that discharge fill material into waters of the United States. However, because the distribution of this species occurs mainly in non-wetland habitats and may not co-occur with other listed species, the Fish and Wildlife Coordination Act and section 404 of the Clean Water Act provide only limited opportunities to protect A. pumila.

Although State laws, including CEQA, CESA, and NPPA at times may provide a measure of protection to species, these laws are not adequate to protect species in all cases or may not be applicable to a particular species.

Ambrosia pumila is not listed under the CESA although it may be eligible for State listing under section 1901, chapter 10 of the California Department of Fish and Game Code. Its inclusion in List 1B of the California Native Plant Society Inventory (CNPS 2001) may satisfy the threat requirement of that section. The State was petitioned to list this species as endangered, under CESA, in June 1997. This petition was rejected by the State because it was not accurate. The same petitioner submitted another petition in February 1998 to list the species as threatened but subsequently withdrew the petition in March 1998. The State did not comment on our proposal to list this species.

CEQA (Public Resources Code, section 21000 et seq. ) pertains to projects on non-Federal lands or activities and requires that a project proponent publicly disclose the potential environmental impacts of proposed projects. The public agency with primary authority or jurisdiction over the project is designated as the lead agency. The lead agency is responsible for conducting a review of the project and consulting with other agencies concerned with the resources affected by the project. Section 15065 of the CEQA Guidelines requires a finding of significance if a project has the potential to “reduce the number or restrict the range of a rare or endangered plant or animal” including those that are eligible for listing under the NPPA or CESA. However, under CEQA, where overriding social and economic considerations can be demonstrated, a project may go forward even where adverse impacts to a species are significant.

We are not aware of any existing regulatory mechanisms in Mexico that would protect Ambrosia pumila or its habitat. If A. pumila was specifically protected in Mexico, the portion of the range in Mexico alone would not be adequate to ensure long-term conservation of this species.

E. Other natural or manmade factors affecting their continued existence. Non-native plants are considered a threat to virtually all of the extant occurrences of Ambrosia pumila (CNDDB 1999; J. Vanderwier, in litt. 1998). Non-native species of grasses and forbs have invaded many of southern California's plant communities. Their presence and abundance are often an indirect result of persistent and repeated habitat disturbance from development, discing, mowing, alteration of local hydrology, and the presence and maintenance of highways and trails. Overgrowth and competition by non-native plants likely affect the reproductive potential of this low growing, wind-pollinated species (CNDDB 1999). Non-native plants found with A. pumila include Brassica spp. (mustard), Vulpia spp. (annual fescue), Erodium spp. (crane's-bill), Bromus spp. (brome grass), and Foeniculum vulgare (sweet fennel). While scientific studies on the effects of non-native plants on A. pumila have not been undertaken, the presence of these and other non-native plants is likely to affect (1) pollen and fruit dispersal by impeding flow of wind-blown pollen and local dispersal of seeds; (2) fire patterns by increasing the fuel loads due to the influx of non-native plants; (3) hydrological conditions by decreasing the amount of water available for A. pumila; and (4) the cumulative effects by reducing the vegetative productivity and the apparently low seed production for this species.

Several occurrences of Ambrosia pumila are threatened by periodic mowing or discing which can reduce the vegetative vigor of the plants and may greatly reduce or eliminate the chances of reproductive output for the year. If the plants were mowed in mid summer to early fall, it is likely that the flowering portions of the aerial stems would be removed. Vegetation in a fuel modification zone in a portion of one of the occurrences in the SDNWR is periodically mowed or disced (J. Vanderwier, in litt. 1998; A. Davenport, in litt. 2002). In the future, populations on the SDNWR will be flagged prior to discing for fire breaks to avoid this species (A. Davenport, in litt. 2002). The extant occurrence in El Cajon, owned by Caltrans, is also impacted by periodic mowing by an adjacent landowner (CNDDB 1999; B. April, pers. comm., 2002).

In one documented instance in 1999, the occurrence of Ambrosia pumila at a fenced biological preserve at Skunk Hollow in Riverside County, was grazed by sheep (C. Moen, USFWS, in litt. 1999). Grazing would likely eliminate or severely reduce the annual reproductive output of A. pumila and could also reduce the vegetative portions of the plants to a degree that would threaten their capacity to persist. Grazing was not a covered activity in the Rancho Bella Vista Habitat Conservation Plan that encompasses this area (USFWS 2000).

Trampling by hikers, horses, and vehicles is likely a threat to any of the occurrences that are found along trails, access roads, rights-of-way, and utility easements. At least four of the larger occurrences of Ambrosia pumila are known to be threatened by trampling, including the occurrences at the SDNWR (J. Vanderwier, in litt. 1998; T. Roster, SDNWR, pers. comm., 1999; A. Davenport, in litt. 2002). While the effects on the rhizome-like roots by soil compaction from vehicle traffic has not been quantified, no aerial stems occur in a wide trail used by hikers and horseback riders that traverses an occurrence in the SDNWR (A. Davenport, in litt. 2002). As an avoidance measure, some of the trails that cross and fragment occurrences of the species at the SDNWR will be abandoned, while those that remain will have increased signage to direct hikers and equestrian users away from the A. pumila populations (T. Roster, pers. comm., 1999). In addition, SDNWR will consult under section 7 of the Act for any proposed actions that may affect A. pumila.

The occurrence at Skunk Hollow in Riverside County is reportedly threatened by indirect impacts from urbanization, including a park, surrounding the occurrence (CNDDB 1999). These activities could include increased impacts from trail use by mountain bikes, horses, or hikers.

Two occurrences are in MTRP. Coincident with their subarea plan (City of San Diego 1997), the San Diego Ambrosia Management Plan (City of San Diego 2000) includes several conservation measures already in place at MTRP. These include fencing at area C which supports the highest concentration of stems of San Diego ambrosia (City of San Diego 2000). Social trails that disperse foot traffic from main trails have been closed by fencing or signage noting sensitive habitat and an interpretive sign is posted in the area (P. Kilburg, Senior Ranger, MTRP, pers. comm., 2002). The management plan (City of San Diego 2000) states that 26 percent of all mapped patches and 24 percent of the total area supporting this species are impacted by trails. The document also notes that Ambrosia pumila cannot withstand trampling from routine foot traffic and that trampling compacts the soil. Compacted soil may reduce the percolation of water into the soil and small patches may be in greater jeopardy than larger patches from this type of altered hydrological condition (City of San Diego 2000). Therefore, the plan recommends enhancement of the population of A. pumila. The plan cautions that strategies should be carefully tested prior to large-scale implementation or acceptance as a reliable enhancement method (City of San Diego 2000). Two strategies were proposed, one to increase the areal extent and absolute numbers of rhizome-like roots in a given patch. The other strategy involves increasing the range of the species in MTRP. Removal of exotic non-native species and planting of native grassland species should be included as funding permits (City of San Diego 2000). Enhancement protocols would likely require inclusion of sampling methodologies to identify specific genetic composition of occurrences and obtain material of the desired genotypes. Success criteria will be determined based in part on genetic composition and dynamics of natural populations.

Two extant occurrences (CNDDB 1999) are within the Metro/Lakeside/Jamul segment of the San Diego County Subarea Plan of the MSCP (County of San Diego 1997). At least one of these occurrences is threatened by the parking of cars on the site and discing of the site (CNDDB 1999). This same occurrence is affected by trampling during maintenance activities on SDG&E utility towers (J. Vanderwier, in litt. 1998) and trampling associated with children using the area as a playground for walking and riding bicycles (A. Davenport, in litt. 2002). The area where the plants occur appears to be mowed periodically (A. Davenport, in litt. 2002).

As described above in the background section, small occurrences composed of a low number of aerial stems or those consisting of few genetically distinct genotypes are likely at a greater risk of negative impacts from random events. This could include fire, which could eliminate the reproductive output at an occurrence, kill all of the plants, or severely reduce the vegetative capacity of the plants to sustain reproductive structures for some period of time.

We have carefully assessed the best scientific and commercial information available regarding the threats faced by this species in developing this rule. Based on this evaluation, listing Ambrosia pumila as endangered is warranted. The species is threatened with extinction due to present or threatened destruction, fragmentation, and degradation of habitat primarily by construction and maintenance of highways, maintenance of utility easements, development of recreational facilities, and residential and commercial development; inadequate regulatory mechanisms; potential competition, encroachment, and other negative impacts from non-native plants; mowing and discing for fuel modification; and trampling as well as soil compaction by horses, humans, and vehicles. These threats are compounded by the fact that this species is a clonal perennial plant that has wind-pollinated flowers and may rarely produce viable seeds. The number of genetically different plants at any given site is unknown, but there are likely multiple aerial stems per plant. This means that some of the smaller occurrences could represent a single plant. Seven of the 15 occurrences are on private lands, some of these with rights-of-way access where regular maintenance activities may impact the plants. Conservation measures, provided by MSCP, are in place for 5 of the 15 occurrences. Even with full protection, this represents only one-third of the known occurrences and will likely not protect sufficient numbers of genetically different plants. Other occurrences may be conserved in future habitat conservation plans. Also, there are no known examples of transplanted or reintroduced occurrences of this species in which sexual reproduction has occurred to sustain either a viable population or exhibit the genetic diversity found in a naturally occurring population.

Critical habitat is defined in section 3(5)(A) of the Act as-(i) the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of the Act, upon a determination by the Secretary that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures needed to bring the species to the point at which listing under the Act is no longer necessary.

Critical habitat designation, by definition, directly affects only Federal agency actions through consultation under section 7(a)(2) of the Act. Section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of a listed species or destroy or adversely modify its critical habitat.

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

Ambrosia pumila is potentially vulnerable to unrestricted over-collection or vandalism. We are concerned that these threats might be exacerbated by the publication of critical habitat maps and further dissemination of locational information. However, at this time we do not have specific evidence of over-collection or vandalism of A. pumila. This species has been offered for sale locally, but the origin of the material is unknown. Consequently, consistent with applicable regulations (50 CFR 424.12(a)(1)(i)) and recent case law, we do not expect that the identification of critical habitat will increase the degree of threat to this species from over-collection or vandalism.

In the absence of a finding that critical habitat would increase threats to a species, if there are any benefits to critical habitat designation, then a prudent finding is warranted. In the case of this species, there may be some benefits to designation of critical habitat. The primary regulatory effect of critical habitat is the section 7 of the Act requirement that Federal agencies refrain from taking any action that destroys or adversely modifies critical habitat. While a critical habitat designation for habitat currently occupied by this species would not be likely to change the section 7 consultation outcome because an action that destroys or adversely modifies such critical habitat would also be likely to result in jeopardy to the species, there may be instances where section 7 consultation would be triggered only if critical habitat is designated. Examples could include unoccupied habitat or occupied habitat that may become unoccupied in the future. There may also be some educational or informational benefits to designating critical habitat. Therefore, we determine that designation of critical habitat for Ambrosia pumila is prudent.

However, the deferral of the critical habitat designation for Ambrosia pumila will allow us to concentrate our limited resources on higher priority listing actions, while allowing us to put in place protections needed for the conservation of A. pumila without delay. This is consistent with section 4(b)(6)(C)(i) of the Act, which states that final listing decisions may be issued without concurrent designation of critical habitat if it is essential to the conservation of the species that such determinations be promptly published. We will prepare a critical habitat designation for this species in the future at such time when our available resources allow it.

Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain activities. Recognition through listing encourages and results in conservation actions by Federal, State, and private agencies, groups, and individuals. The Act provides for possible land acquisition and cooperation with the States, local agencies, private groups, and organizations and requires that recovery actions be carried out for all listed species. We discuss the protection required by Federal agencies and the prohibitions against taking and harm, in part, below.

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

Several Federal agencies are expected to potentially have involvement with section 7 of the Act regarding this species. The association of Ambrosia pumila with terraces of streams may result in the Corps becoming involved through its permitting authority under section 404 of the Clean Water Act and the issuance of permits related to the discharge of fill material into waters of the United States. The Federal Highway Administration may be affected through potential funding of future highway construction affecting this species. The Federal Energy Regulatory Commission may be involved through its permitting authority for utility projects that may potentially affect this species. The two occurrences of A. pumila on the SDNWR receive the protection afforded biological resources on the refuge. In addition, SDNWR is managed in accordance with San Diego MSCP. In the long-term, the SDNWR will develop a comprehensive conservation plan that addresses this species and other biological resources.

In 1991, the State of California established the Natural Community Conservation Planning (NCCP) program to address conservation needs of natural ecosystems throughout the State. The initial focus of the NCCP program is the coastal sage scrub community in southern California. Regional habitat conservation plans have been approved, are in development, or are being planned in San Diego, Orange, Riverside, San Bernardino, and Los Angeles Counties pursuant to the State of California Natural Community Conservation Planning Act of 1991 and section 10(a)(1)(B) of the Act.

The San Diego MSCP establishes a 68,800-ha (172,000-ac) preserve and provides for monitoring and management for the 85 covered species addressed in the permit, including Ambrosia pumila. Additionally, A. pumila is defined in the MSCP as a narrow endemic species. The Service approved subarea plans under the MSCP for the City of Poway in July 1996, the City of San Diego in July 1997, the County of San Diego in March 1998 and the City of La Mesa in January 2000.

All of the 12 extant occurrences in San Diego County are in approved or proposed regional habitat conservation planning areas. Eleven of the 12 extant occurrences in San Diego County are in the MSCP planning area. Two of these occurrences are in the SDNWR. Five of the nine known occurrences in the MSCP planning area are provided protection within approved permitted Subarea Plans. Two of the occurrences, both at MTRP, are addressed under the approved City of San Diego's Subarea Plan (City of San Diego 1997) and in the San Diego Ambrosia Management Plan (City of San Diego 2000). Several conservation measures are in place at MTRP. These include fencing of the largest concentration of Ambrosia pumila, closure of several trails that impact the species, and interpretive signage in the area (City of San Diego 2000, P. Kilburg pers. comm., 2002). According to the City of San Diego's Subarea Plan (City of San Diego 1997), 90 percent of the only major population will be conserved and 100 percent of the adjacent portion of the occurrence on private lands near the radio tower will be preserved. The site-specific monitoring plan, with management plan and directives, include measures to protect against detrimental edge effects (City of San Diego 1997). This Subarea Plan also treats this plant as a narrow endemic species requiring impacts within the preserve to be avoided. Outside the preserve, narrow endemic species will be protected through one of the following measures: (1) Avoidance; (2) management; (3) enhancement; and (4) transplantation to areas identified for preservation. Unavoidable impacts associated with reasonable use or essential public facilities would need to be minimized and mitigated (City of San Diego 1997).

Under the County of San Diego's Subarea Plan, Ambrosia pumila is a narrow endemic species requiring avoidance to the maximum extent possible. Where avoidance is infeasible, a maximum encroachment may be authorized of up to 20 percent of the population on site. Where impacts are allowed, in-kind preservation shall be required at a 1:1 to 3:1 ratio depending upon the sensitivity of the species and population size, as determined in a biological analysis approved by the Service and the CDFG. The occurrences near Del Dios Highway in the San Dieguito River watershed, as well as two occurrences near Steele Canyon Road are within the approved County of San Diego's Subarea Plan (County of San Diego 1997).

Two existing occurrences remain within the City of El Cajon. The City of El Cajon submitted a draft MSCP Subarea Plan dated January 2, 1997 (City of El Cajon 1997). Neither of the two occurrences is included within the 100 percent habitat preserve areas. The draft plan notes that the plant is considered a narrow endemic species by MSCP and the intention of the City of El Cajon to address species and habitat protection through the CEQA process. The City of El Cajon has not yet completed their MSCP subarea plan. The last time this plan was an agenda item at a meeting with the City of El Cajon was on May 20, 1999.

The draft Environmental Impact Statement/Environmental Impact Report for the MHCP in northwestern San Diego County was released for review by the San Diego Association of Governments (SANDAG) and the Service in December 2001. The only known occurrence of this species within the planning area is proposed to be conserved. Under the draft MHCP, the plant would be treated as a narrow endemic species requiring surveys of suitable habitat and onsite conservation of 80-100 percent of each occurrence discovered in the area. Two occurrences of Ambrosia pumila in San Diego County are within the North County MSCP Subarea Plan, which is also in the planning phase. This plan is projected to be completed in 2004.

The County of Riverside anticipates completion of the Western Riverside Multiple Species Habitat Conservation Plan (MSHCP) by December 2002. Ambrosia pumila has been proposed for coverage under this plan and will be treated as a narrow endemic species. The three known extant occurrences of this species in Riverside County are within the planning boundaries of the MSHCP. One of these is within an area already managed for conservation. The other two occurrences are within the criteria area where conservation is proposed. The narrow endemic species policy will require pre-project surveys and onsite conservation of a portion of any new populations identified (County of Riverside 2002).

SDG&E prepared a subregional Natural Communities Conservation Plan. The Service, CDFG, and SDG&E signed an implementation agreement and memorandum of understanding in December 1995. Under the provisions of this plan, Ambrosia pumila is a covered species and a narrow endemic species. The plan prohibits impacts to occupied habitat except in emergency situations.

While four of the 12 extant occurrences of Ambrosia pumila in San Diego County are in areas where regional habitat conservation planning is ongoing, the plans have not yet been approved. These regional planning efforts include MHCP, the North County MSCP Subarea Plan, and the City of El Cajon Subarea Plan. The details of protections for each of the occurrences of Ambrosia pumila under each of these plans are being developed and thus are not currently in place. Protections for the eight remaining occurrences in San Diego County are discussed above. All three of the only known extant occurrences in Riverside County are in the planning area for the Western Riverside Multiple Species Habitat Conservation Plan. Because this plan is not yet approved, two of these occurrences, including one of the largest, are not currently afforded any protections under the MSHCP.

Listing Ambrosia pumila provides for the development and implementation of a recovery plan for the species. This plan will bring together Federal, State, and local agency efforts for conservation of the species. A recovery plan will establish a framework for agencies to coordinate their recovery efforts. The plan will set recovery priorities and estimate the costs of the tasks necessary to accomplish the priorities. It will also describe the site-specific management actions necessary to achieve conservation and recovery of the species. Based on the biology of this species and preliminary data regarding the clonal structure of the species, attention should be given to preservation of as many genotypes as possible. This is most easily accomplished by preserving as many different occurrences as possible, determining their clonal structure, and protecting the occurrences from direct effects of habitat destruction or degradation and the indirect effects of encroachment by invasive non-native species.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered plants. All prohibitions of section 9(a)(2) of the Act, implemented by 50 CFR 17.61 for endangered plants, apply. These prohibitions, in part, make it illegal for any person subject to the jurisdiction of the United States to import or export, transport in interstate or foreign commerce in the course of a commercial activity, sell or offer for sale in interstate or foreign commerce, or remove and reduce to possession from areas under Federal jurisdiction any endangered plant species. In addition, for plants listed as endangered, the Act prohibits malicious damage or destruction on areas under Federal jurisdiction, and the removal, cutting, digging up, or damaging or destroying of such plants in knowing violation of any State law or regulation or in the course of any violation of a State criminal trespass law. Certain exceptions to the prohibitions apply to agents of the Service and State conservation agencies.

The Act and 50 CFR 17.62 and 17.63 also provide for the issuance of permits to carry out otherwise prohibited activities involving endangered plant species under certain circumstances. Such permits are available for scientific purposes and to enhance the propagation or survival of the species. It is anticipated that few trade permits would ever be sought or issued because this species is not common in cultivation or common in the wild. Requests for copies of the regulations concerning listed plants and general inquiries regarding prohibitions and permits may be addressed to the U.S. Fish and Wildlife Service, Endangered Species Permits, 911 NE. 11th Avenue, Portland, OR 97232-4181 (telephone 503/231-2063; facsimile 503/231-6243).

It is our policy, published in the Federal Register (59 FR 34272) on July 1, 1994, to identify to the maximum extent practicable those activities that would or would not be likely to constitute a violation of section 9 of the Act if a species is listed. The intent of this policy is to increase public awareness of the effect of the species' listing on proposed and ongoing activities within its range. Collection of listed plants or activities that would damage or destroy listed plants on Federal lands are prohibited without a Federal endangered species permit. Such activities on non-Federal lands would constitute a violation of section 9 of the Act if they were conducted in knowing violation of California State law or regulation, or in the course of violation of California criminal trespass law. Otherwise, such activities would not constitute a violation of the Act on non-Federal lands.

Questions on whether specific activities would likely constitute a violation of section 9 should be directed to the Field Supervisor of the Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT section).

We have determined that Environmental Assessments and Environmental Impact Statements, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act. A notice outlining our reasons for this determination was published in the Federal Register on October 25, 1983 (48 FR 49244).

This rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ). Any information collection related to the rule pertaining to permits for endangered and threatened species has OMB approval and is assigned control number 1018-0094, which expires on July 31, 2004. For additional information concerning these permits and associated requirements, see 50 CFR § 17.62.

A complete list of all references cited herein is available, upon request, from the Field Supervisor, Carlsbad Fish and Wildlife Office (see ADDRESSES section).

The primary author of this final rule is Gary D. Wallace, Ph.D., U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office (see ADDRESSES section).

The mountain yellow-legged frog is in the family of true frogs, Ranidae, which consists of frogs that are more closely tied to water bodies for breeding and foraging than other frog or toad species. Mountain yellow-legged frogs were originally described by Camp (1917) as a subspecies of Rana boylii. Zweifel (1955) demonstrated that frogs from the high Sierra Nevada and the mountains of southern California were somewhat similar to each other, yet were distinct from the rest of the R. boylii (= boylei ) group. Since that time, most authors have treated the mountain yellow-legged frog as a full species, Rana muscosa, following Zweifel's treatment.

Mountain yellow-legged frogs are moderately sized, about 40 to 80 millimeters (mm) (1.5 to 3 inches (in)) from snout to urostyle (the pointed bone at the base of the backbone) (Zweifel 1955, Jennings and Hayes 1994). The skin pattern of the mountain yellow-legged frog is variable, ranging from discrete dark spots that can be few and large, to smaller and more numerous with a mixture of sizes and shapes, to irregular patches or a poorly defined network (Zweifel 1955). The body color is also variable, usually a mix of brown and yellow, but often with gray, red, or green-brown. Some individuals may be dark brown with little pattern (Jennings and Hayes 1994). Folds are present on each side of the back (dorsolateral folds), but usually are not prominent (Stebbins 1985). The throat is white or yellow, sometimes mottled with dark pigment (Zweifel 1955). The belly and undersurface of the hind limbs are yellow, which ranges in hue from pale lemon yellow to an intense sun yellow. Eye coloration consists of a gold-colored iris with a horizontal, black counter shading stripe (Jennings and Hayes 1994).

The mountain yellow-legged frog is a near-endemic species to California (primarily restricted to California and a small area of Nevada), historically ranging in distribution from southern Plumas County in northern California to northern San Diego County in southern California. Within the range of the species, there are two major clades (a group of organisms that includes all descendants of one common ancestor) separated by a biogeographic break between the central and southern portions of the Sierra Nevada. These two clades can be further divided into four subgroups, the northern Sierra Nevada, central Sierra Nevada, southern Sierra Nevada, and southern California (Macey et al. 2001). In the Sierra Nevada of California, the mountain yellow-legged frog ranges from northern Plumas County (G. Fellers in litt. 2000) to southern Tulare County (Jennings and Hayes 1994), at elevations mostly above 1,820 meters (m) (6,000 feet (ft)). The frogs of the southern Sierra Nevada are isolated from the frogs in the mountains of southern California by the Tehachapi Mountains and a distance of about 225 kilometers (km) (140 miles (mi)).

Mountain yellow-legged frogs were historically documented from approximately 166 localities in creeks and drainages in the mountains of southern California (Jennings and Hayes 1994). Of these, an estimated 164 localities were from creeks and drainages in the San Gabriel, Big Bear, and San Jacinto Mountains of Los Angeles, San Bernardino, and Riverside Counties. The two remaining occurrences were documented on Palomar Mountain in San Diego County and were considered to represent an isolated population (Zweifel 1955). Currently the mountain yellow-legged frog is known from only seven locations in southern California in portions of the San Gabriel, San Bernardino, and San Jacinto Mountains (Backlin et al. 2002).

Localities of extant populations of mountain yellow-legged frogs in southern California are reported to range in elevation from approximately 370 m (1,200 ft) to 2,290 m (7,500 ft) (Stebbins 1985). Historical localities demonstrating the wide elevation range that mountain yellow-legged frogs inhabited in southern California include Eaton Canyon, Los Angeles County (370 m (1,220 ft)), and Bluff Lake, San Bernardino County (2,290 m (7,560 ft)).

Southern California mountain yellow-legged frogs are diurnal (active during the daylight hours), highly aquatic frogs, occupying rocky and shaded streams with cool waters originating from springs and snowmelt. Water depth, persistence, and configuration ( i.e., gently sloping shorelines and margins) appear to be important for mountain yellow-legged frogs, allowing for shelter from predators along shores or in deeper waters, and habitat for breeding, foraging, egg-laying, thermoregulation (to regulate the body temperature through behavior), and overwintering (Jennings and Hayes 1994).

Juvenile and adult mountain yellow-legged frogs feed primarily on small, streamside insects such as beetles, flies, ants, bees, and similar small insects (Jennings and Hayes 1994). The coldest winter months are spent in hibernation, probably underwater or in crevices in the streambanks. Mountain yellow-legged frogs emerge from overwintering sites in early spring and breeding soon follows. Breeding activity typically begins in April at lower elevations, to June or July at upper elevations and continues for approximately a month (Zweifel 1955). Egg masses vary in size from as few as 15 eggs to 350 eggs per mass (Vredenburg et al., in press), which is considered low, relative to a range of several hundred to several thousand for other true frogs such as the California red-legged frog ( Rana aurora draytonii ) (61 FR 25813, 66 FR 14626). Egg masses are normally deposited in shallow waters where they may be attached to rocks, gravel, vegetation, or similar substrates (U. S. Forest Service (USFS) 2002). As larvae develop, they tend to gravitate towards warmer waters to elevate body temperatures (Bradford 1984) which may facilitate larval and metamorphic development by allowing for a higher metabolic rate. Even with this behavior, “larvae apparently must overwinter at least two times for 6 to 9 month intervals before attaining metamorphosis because the active season is short and the aquatic habitat maintains warm temperatures for only brief intervals” (USFS 2002). Time to develop from fertilization to metamorphosis appears to be variable, ranging up to 3.5 years (Vredenburg et al., in press; Zweifel 1955), with reproductive maturity reached from 3 to 4 years following metamorphosis (Zweifel 1955). Little is known about adult longevity, but the species is presumed to be long-lived due to adult survivorship ( i.e., observed survival of adults from year to year) (Mathews and Pope 1999, Pope 1999a in USFS 2002). Further, Pope (1999a in USFS 2002) suggests that mountain yellow-legged frogs may have strong site fidelity for wintering and summer habitats.

The decline of mountain yellow-legged frogs from more than 99 percent of their previously documented range in southern California (Jennings and Hayes 1994) may be part of a well-known larger pattern of native ranid frog extirpations in the western United States (Hayes and Jennings 1986, Drost and Fellers 1996). Some of the western ranid frog species experiencing noticeable declines are the threatened California red-legged frog (61 FR 25813), the spotted frog ( R. pretiosa and R. luteventris ), the Cascades frog ( R. cascadae ), and the threatened Chiricahua leopard frog ( R. chiricauhensis ) (67 FR 40789). Nowhere have the declines been more pronounced than in southern California, where, in addition to declines in mountain yellow-legged frogs, the California red-legged frog has been reduced to a few small remnant populations (61 FR 25813, 66 FR 14626) and the foothill yellow-legged frog ( R. boylii ) may be extirpated (Jennings and Hayes 1994).

The mechanisms causing the declines of western ranid frogs are not well understood and are certain to vary somewhat among species. The two most common and well-supported hypotheses for widespread extirpation of western ranid frogs are: (1) Past habitat destruction related to activities such as logging, mining, and habitat conversions for water development, irrigated agriculture, and commercial development (Hayes and Jennings 1986, 61 FR 25813); and (2) non-native predators and competitors such as introduced trout and bullfrogs (Hayes and Jennings 1986, Bradford 1989, Knapp 1996, Kupferberg 1997). However, in the case of the southern populations of mountain yellow-legged frogs, habitat destruction related to activities such as logging and commercial development does not appear to have been a significant factor in their precipitous decline because these activities are not prominent within mountain yellow-legged frog habitat in southern California. Overall, all of these factors, operating alone or in combination, may result in the direct extirpation of local populations of mountain yellow-legged frogs. Further, these factors may disrupt the natural cyclical population dynamics on the local and regional levels such that it may be difficult for populations to recover from localized impacts or extirpations.

Other environmental factors that may adversely affect mountain yellow-legged frogs and other amphibian populations over a wide geographic range include pesticides (Sparling et al. 2001), certain pathogens (Blaustein et al. 1994, Fellers et al. 2001), ultraviolet-B (beyond the visible spectrum) radiation (Blaustein et al. 2001, Belden and Blaustein 2002), or a combination of the above factors (Kiesecker and Blaustein 1995, Blaustein et al. 2001, Kiesecker et al. 2001). However, these factors, their interactions, and their effects on the decline of amphibian populations are not well understood (Wake 1998, Fellers et al. 2001). We believe that these environmental factors are still operating, and unless moderated or reversed, a high probability exists that mountain yellow-legged frogs may become extirpated in southern California in the foreseeable future. Consequently, additional research on the effects of the factors on amphibian populations is necessary. To that end, the Department of the Interior (DOI) has supported an initiative to fund research on the causes of amphibian declines (USFWS 2000).

Mountain yellow-legged frogs in southern California are found primarily on public land within the Angeles and San Bernardino National Forests. Therefore, the majority of mountain yellow-legged frog habitat is now protected or managed through management plans established for the Forests and sensitive species and habitat contained therein (refer to the Available Conservation Measures section for a further discussion of these measures). However, prior to the development of these management plans, dams or diversions were placed in many of the major streams flowing through the southern California mountains historically inhabited by mountain yellow-legged frogs. These dams and diversions alter natural hydrologic flow and may negatively impact mountain yellow-legged frog breeding and foraging habitat and further exacerbate the decline of populations in southern California.

Surveys in 2000 and 2001 by the U.S. Geological Survey (USGS) found mountain yellow-legged frogs in five small streams in the San Gabriel Mountains, one stream, City Creek, a tributary of the Santa Ana River, in the San Bernardino Mountains, and one stream in the upper reaches of the San Jacinto River system in the San Jacinto Mountains (Backlin et al. 2002, USFS 2002). The results from the USGS surveys differ somewhat from the distribution of mountain yellow-legged frogs described in the proposed listing rule (64 FR 71714). Areas where mountain yellow-legged frogs were found during the surveys and adult population estimates for each area are described below. Areas where frog populations were reported in the proposed rule, but were not found during recent surveys, are also noted.

San Gabriel Mountains, Angeles National Forest, San Bernardino County: Mountain yellow-legged frogs were detected at 5 of 17 San Gabriel Mountains sites surveyed in 2001: Bear Gulch, Devil's Canyon, Little Rock Creek, South Fork of Big Rock Creek, and Vincent Gulch. No frogs were detected at Alder Gulch during a summer 2001 survey, but they were reported at this site in 1995 (Jennings 1995). Adult population estimates and 95 percent confidence intervals (CI) for the five sites were: 47 (95 percent CI = 22-108) for Bear Gulch, five (95 percent CI = 2-20) for Little Rock Creek, seven (95 percent CI = 1-7) for South Fork of Big Rock Creek, and 7 (95 percent CI = 1-7) for Vincent Gulch (Backlin et al. 2002). No population estimate was made for Devil's Canyon, but four adults were found (Backlin et al. 2002).

San Jacinto Mountains, San Bernardino National Forest, Riverside County: Only one site out of five surveyed in the San Jacinto Mountains in 2000 and 2001 was reported to be occupied (Backlin et al. 2002). One adult was found on Fuller Mill Creek during the five surveys conducted. No frogs were detected on the North Fork of the San Jacinto River from four surveys conducted in 2001, or in Dark Canyon during three surveys conducted in 2000 (Backlin et al. 2001). Mountain yellow-legged frogs were documented in Dark Canyon as recently as 1998 (Jennings 1999). Hall Canyon was not surveyed in 2000 and 2001. While frogs were not documented in this canyon during surveys in 1998 (Jennings 1999), eight adult mountain yellow-legged frogs and larvae were documented in 1995 (Jennings 1995).

San Bernardino Mountains, San Bernardino National Forest, Riverside County: Only one of 21 San Bernardino Mountains locations surveyed in 2001 had mountain yellow-legged frogs (Backlin et al. 2002). This site, the East Fork of City Creek, has an estimated adult population size of 13 (95 percent CI = 5-74) (Backlin et al. 2002). Similarly, the East Fork of City Creek was the only creek of the 15 locations surveyed in 2000 that was documented as supporting mountain yellow-legged frogs (Backlin et al. 2002).

Based on available recent information, it appears that mountain yellow-legged frogs have only been currently documented in seven creeks and drainages in the San Gabriel, San Jacinto, and San Bernardino Mountains of southern California, in contrast to the 166 documented historic localities. In 1994, Jennings and Hayes (1994) suggested that mountain yellow-legged frogs in the San Gabriel and San Jacinto Mountains (an estimated eight isolated localities) numbered fewer than 100 adult frogs. Their estimate was based on a compilation of the results of visual surveys generally conducted on a single day, not on standard abundance estimation techniques. The current estimate of mountain yellow-legged frogs in southern California based on extrapolation from a mathematical formula is estimated to be approximately 79 adult frogs, not including direct observations in Devil's Canyon (4 adults in 2001) and Fuller Mill Creek (1 adult in 2001), in which estimates were not calculated (Backlin et al. 2002). We acknowledge, however, that some creeks may have small populations that were not detected by recent 2000 and 2001 surveys efforts by Backlin et al. (2001; 2002).

We evaluated populations of mountain yellow-legged frog according to the February 7, 1996, joint Service and National Marine Fisheries Service Policy Regarding the Recognition of Distinct Vertebrate Population Segments (61 FR 4722). Three elements are considered in a decision regarding the status of a possible DPS as endangered or threatened under the Act. These are applied similarly for addition to the lists of endangered and threatened wildlife and plants, reclassification, and removal from the lists and include: (1) Discreteness of the population segment in relation to the remainder of the species to which it belongs; (2) the significance of the population segment to the species to which it belongs; and (3) the population segment's conservation status in relation to the Act's standards for listing.

Discreteness refers to the isolation of a population from other members of the species and is based on two criteria: (1) Marked separation from other populations of the same taxon resulting from physical, physiological, ecological, or behavioral factors, including genetic discontinuity; or (2) populations delimited by international boundaries.

We determine significance either by the importance or contribution, or both, of a discrete population to the species throughout its range. Our policy lists four examples of factors that may be used to determine significance: (1) Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon; (2) evidence that loss of the discrete population segment would result in a significant gap in the range of the taxon; (3) evidence that the discrete population segment represents the only surviving natural occurrence of the taxon that may be more abundant elsewhere as an introduced population outside its historic range; and (4) evidence that the discrete population segment differs markedly from other populations of the taxon in its genetic characteristics.

If we determine that a population segment is discrete and significant, we evaluate it for endangered or threatened status based on the Act's standards. Endangered means the species is in danger of extinction throughout all or a significant portion of its range. Threatened means the species is likely to become endangered within the foreseeable future throughout all or a significant portion of its range.

Discreteness: The range of the mountain yellow-legged frog is divided by a natural geographic barrier, the Tehachapi Mountains, which geographically isolates frogs in the southern Sierra Nevada from those in the mountains of southern California. The distance of the geographic separation is about 225 km (140 mi). The geographic separation of the Sierra Nevada and southern California frogs was recognized in the earliest description of the species by Camp (1917), who treated frogs from the two localities as separate subspecies within the R. boylii group. He designated the Sierra Nevada frogs R. b. sierrae and the southern California frogs R. b. muscosa, based on geography and subtle morphological (outward appearance; structure and form) differences. Zweifel (1955) reevaluated the morphological evidence used by Camp and found it insufficient to warrant recognition of two subspecies.

Using a limited sample size, Ziesmer (1997) analyzed the calls of Sierra Nevada (Alpine and Mariposa Counties) (n = 86 utterances) and southern California (San Jacinto Mountains, Riverside County) mountain yellow-legged frogs (n = 23 utterances). The calls of Sierra Nevada frogs differed from southern California frogs in pulse rate, harmonic structure, and dominant frequency (Ziesmer 1997). Ziesmer (1997) concluded that the differences in calls supported the hypothesis that mountain yellow-legged frogs from the Sierra Nevada and southern California are separate species.

In addition, two different genetic analyses have been conducted that support the concept that mountain yellow-legged frog populations in southern California are different from those in the Sierra Nevada. As noted in the proposed listing rule (64 FR 71714), a previously unpublished allozyme study was used to compare mountain yellow-legged frogs for the central Sierra Nevada and southern California (Green in litt., 1993). He found a fairly significant genetic difference between the two populations, but without frogs from the southern Sierra Nevada for comparison, it was not clear whether the difference reflected two ends of a cline (a character gradient), or distinct populations. Thus, due to the small sample sizes, the results were interpreted cautiously. More recently, a phylogenetic analysis of mitochondrial DNA sequences was performed on Rana muscosa throughout its distribution (Macey et al. 2001). Mitochondrial DNA sequences provide a more robust analysis of relationships than the allozymic data (Macey et al. 2001). Macey et al. (2001) found that eight populations of mountain yellow-legged frogs form two major clades separated by a biogeographic break in the Sierra Nevada. The break occurs between Kings Canyon National Park and a region slightly north of Yosemite National Park (Macey et al. 2001). The northern clade consists of populations from the northern and central Sierra Nevada, while the southern clade contains populations from the southern Sierra Nevada and the San Gabriel, San Jacinto, and San Bernardino Mountains in southern California. The two major clades, or groups, within R. muscosa are estimated to have diverged about 2.2 million years ago (Macey et al. 2001).

The two major clades each contained two subgroups, suggesting at least four evolutionarily distinct units within this taxon (Macey et al. 2001). Macey et al. (2001) found statistical support for evolutionarily distinct populations from the northern Sierra Nevada, central Sierra Nevada, southern Sierra Nevada, and southern California mountains (San Bernardino, Los Angeles, and Riverside counties). The southern Sierra Nevada and southern California subgroups are estimated to have diverged about 1.4 million years ago (Macey et al. 2001).

The vocalization differences found by Ziesmer (1997) support the discreteness of southern California mountain yellow-legged frogs from the Sierra Nevada populations. The genetic study conducted by Macey et al. (2001) also strongly supports the conclusion that the population of mountain yellow-legged frogs in southern California is discrete. The results from these studies together with the geographic separation of the southern population from the rest of the populations in the Sierra Nevada satisfy the criterion of “marked separation from other populations of the same taxon” and qualify as discrete according to the Policy Regarding the Recognition of Distinct Vertebrate Population Segments (61 FR 4722).

Significance: One of the most striking differences between Sierran and southern California mountain yellow-legged frogs is the ecological setting they each occupy. Zweifel (1955) observed that the frogs in southern California are typically found in steep gradient streams in the chaparral belt, even though they may range into small meadow streams at higher elevations. In contrast, Sierran frogs are most abundant in high elevation lakes and slow-moving portions of streams. Bradford's (1989) southern Sierra Nevada Mountain study site, for example, was in Sequoia and Kings Canyon National Parks, at high elevations between 2,910 to 3,430 m (9,600 to 11,319 ft). The rugged canyons of the arid mountain ranges of southern California bear little resemblance to the alpine lakes and streams of the Sierra Nevada. The different ecological settings between mountain yellow-legged frogs in southern California and those in the Sierra Nevada distinguish these populations from each other.

The extinction of this southern group would be significant because it would substantially reduce the overall range to only the Sierra Nevada. The mountain yellow-legged frogs of southern California comprise the southern limit of the species' range, and the loss of the southern California frogs on the periphery of the species' range could have significant conservation implications. Peripheral populations may be genetically and morphologically divergent from central populations. As such, distinct traits found in peripheral populations may be crucial to the species, allowing adaptation to environmental change. Peripheral populations often are important for the survival and evolution of species and will often have high value for conservation (Lesica and Allendorf 1995).

Based on the differences between the ecological settings for the mountain yellow-legged frog in southern California (steep gradient streams) and the Sierra Nevada (high elevation lakes and slow moving portions of streams), elevation, and the importance of the southern California population to the entire range of this species, the mountain yellow-legged frogs inhabiting the mountains of southern California meet the significance criteria under our Policy Regarding the Recognition of Distinct Vertebrate Population Segments (61 FR 4722).

Based on our determination that the southern California population of mountain yellow-legged frogs meets the first two criteria for a distinct vertebrate population segment per our policy, discreteness and significance, we must evaluate its conservation status and make a determination relative to the Act's standards for listing as endangered or threatened. Please refer to the Summary of Factors Affecting the Species for our discussion of the status of the species.

On July 13, 1995, we received a petition dated July 10, 1995, from D.C. Jasper Carlton of the Biodiversity Legal Foundation, Bonnie M. Dombrowski, and Michael C. Long to list as threatened or endangered the southern California population of the mountain yellow-legged frog pursuant to the Act. Accompanying the petition was supporting information related to the taxonomy, ecology, and past and present distribution of the species. We reviewed the petition, supporting documentation, and other information to determine if substantial information was available to indicate that the requested action may be warranted. On July 8, 1997, we published a 90-day administrative finding on the petition to list the southern California population of the mountain yellow-legged frog (62 FR 36481). In our finding, we discussed our determination that the petition presented substantial information indicating that listing of the species may be warranted and that we believed the southern California population to be a distinct vertebrate population segment.

Once we determined that the petition presented substantial information, we commenced a status review pursuant to section 4(b)(3)(A) of the Act. However, consistent with the applicable Listing Priority Guidances (62 FR 55268, 63 FR 25502), we worked on higher priority listing actions before completing the 12-month administrative finding and proposed listing rule on December 22, 1999, to list this DPS of the mountain yellow-legged frog as endangered (64 FR 71714). The processing of the 12-month administrative finding and the proposed listing rule conformed with our Listing Priority Guidance published in the Federal Register on October 22, 1999 (64 FR 57114).

On May 19, 2000, we published a notice of reopening of the comment period in response to a request from the California Department of Fish and Game (CDFG) for additional time to obtain biological information regarding the mountain yellow-legged frog and to comment on the proposed rule (65 FR 31870). Due to limited resources and the need to undertake other, higher-priority listing actions, the Service was unable to make a final determination for this species within the 12-month statutory timeframe provided by the Act. In August 2001, the Department of the Interior reached an agreement in principal with the Center for Biological Diversity, Southern Appalachian Biodiversity Project, and the California Native Plant Society on a timeframe to make final listing determinations for 14 species, including the mountain yellow-legged frog (southern California DPS). The agreement was formalized in October 2001 ( Center for Biological Diversity, et al. v. Norton, Civ. No. 01-2063 (JR) (D.D.C.)). The publication of the final rule to list the southern California distinct vertebrate population segment of the mountain yellow-legged frog complies with the terms of that court-approved settlement agreement.

Additionally, on February 10, 2000, we received a petition dated February 8, 2000, to list as endangered the Sierra Nevada population of the mountain yellow-legged frog as a distinct vertebrate population. The petition addresses the remainder of the entire species' range, in the Sierra Nevada from Tulare County, CA, in the south to Plumas County, CA, in the north. On October 12, 2000, we published an administrative 90-day finding indicating that the petition presented substantial information and that the petitioned action may be warranted (65 FR 60603), and we initiated a status review for the mountain yellow-legged frog. The results of this review will be addressed in our 12-month administrative finding on the petitioned action.

In the December 22, 1999, proposed rule (64 FR 71714), we requested all interested parties to submit factual reports or information that might contribute to development of this final rule during the 60-day public comment period which closed on February 22, 2000. We requested comments from appropriate Federal agencies, State agencies, county and city governments, scientific organizations, and other interested parties. We published public notices of the proposed rule in the Los Angeles Times in Los Angeles County on December 27, 1999, The Press-Enterprise in Riverside County on December 29, 1999, and The Sun in San Bernardino County on December 30, 1999, inviting the general public to comment. On February 7, 2000, we received a request for a public hearing; however, at a later date the same individual provided comments on the proposed rule and retracted the request for a public hearing. On May 19, 2000, we reopened the public comment period for an additional 30 days (65 FR 31870) to obtain biological information and to receive further comments on the proposed rule.

During the two public comment periods, we received written comments from a total of 18 individuals or agencies. All commenters supported the listing of the mountain yellow-legged frog DPS in southern California, but several expressed concern over our discussion and analysis of the potential factors affecting the species.

In accordance with our July 1, 1994, Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities (59 FR 34270), we solicited the expert opinions of six independent specialists regarding pertinent scientific or commercial data and assumptions relating to the taxonomy, population status, and supporting biological and ecological information for the taxon under consideration for listing. The purpose of such review is to ensure that listing decisions are based on scientifically sound data, assumptions, and analyses, including input of appropriate experts and specialists. All six peer reviewers responded and supported the listing of this taxon. Information and suggestions provided by the reviewers were incorporated or addressed as applicable.

Comments on the proposed listing rule and our responses are either summarized below or directly incorporated into this final rule:

Comment 1: A peer reviewer requested additional discussion of the potential effects of water projects in drainages where mountain yellow-legged frogs occur.

Our Response: Currently, we lack specific information to address adequately the effects of water projects in drainages on the mountain yellow-legged frog in this final rule. However, we recognize that these projects may affect the mountain yellow-legged frog and its habitat. We will continue to gather information and attempt to address this issue in the future.

Comment 2: One peer reviewer noted our statement that all nine known populations of southern California mountain yellow-legged frog occur on USFS lands may not be true because Fuller Mill Creek flows through private property in the community of Pinewood.

Our Response: We have made that correction in this final rule. As one of the conservation measures for the mountain yellow-legged frog, the USFS identified a portion of the private land along Fuller Mill Creek (approximately 24 hectares (ha) (60 acres (ac)) for acquisition (USFWS 2001). In January 2001, the USFS acquired 97 ha (240 ac) of private land along Fuller Mill Creek in Pinewood (Regelbrugge in litt. 2002). While this land acquisition included the original 24 ha (60 ac) targeted, along with additional mountain yellow-legged frog habitat, portions of the creek that contain suitable, occupied habitat remain under private ownership.

Comment 3: One commenter requested that future proposals of critical habitat undergo a public comment period similar to the proposed listing.

Our Response: Pursuant to the Act and implementing regulations, we are required to solicit public comments on proposed rulemakings, including proposed critical habitat designations.

Comment 4: One commenter responded that there is relatively little information on the life history of stream-dwelling mountain yellow-legged frog populations, and our conclusion in the proposed listing rule that wherever rainbow trout ( Oncorhynchus mykiss ) and mountain yellow-legged frogs co-occur, trout are likely to eliminate mountain yellow-legged frogs was unsubstantiated, because the data was collected from high elevation lakes in the Sierra Nevada.

Our Response: In our proposed listing rule, we stated that trout may keep populations of mountain yellow-legged frogs low and limit dispersal. Although all studies that have concluded trout negatively affect the distribution of mountain yellow-legged frogs were conducted on lakes and ponds in the Sierra Nevada (Bradford 1989, Knapp 1996, Knapp and Matthews 2000), the inference that trout in southern California streams would have the same or similar adverse effects on mountain yellow-legged frog populations is strong and should not be overlooked. In these studies, it was documented that nonnative trout may be the most severe threat affecting mountain yellow-legged frogs (Backlin et al. 2001) by predating larvae and metamorphs (Hays and Jennings 1986, Bradford 1989). Furthermore, research has shown adverse effects of trout on frog tadpoles in a stream-setting (Rattlesnake Creek) within the Santa Ynez Mountains (Cooper et al. 1986). Cooper et al. (1986) stated that their experiments showed that trout eliminated treefrog ( Hyla spp.) tadpoles.

We are currently funding a study through section 6 of the Act, to examine the natural history of the southern California DPS and interactions with trout.

Comment 5: One commenter stated the proposed rule unnecessarily focused on potential public impacts, and was worried that as a result, the USFS would respond to the final listing with forest closures that are not warranted. The commenter noted human activities such as day use, hiking and camping were being singled out in the proposed rule.

Our Response: Although we did not specifically identify recreational activities as a significant factor in the precipitous decline of the southern California DPS of mountain yellow-legged frog, the few remaining occurrences of this species in southern California are now at risk of extinction. Any activity that results in disturbance to the species or which may harm eggs, tadpoles or adult frogs could negatively affect the continued survival of this DPS. We have conferred with the USFS on their activities which may affect the mountain yellow-legged frog and have identified actions to prevent impacts to the species (USFWS 2001). The small number of mountain yellow-legged frogs in southern California occur in a few stream reaches within the Angeles National Forest (ANF) and San Bernardino National Forest (SBNF). We believe that actions undertaken by the USFS to reduce impacts to this species on USFS lands in southern California will have a limited effect on current recreational activities within the Angeles and San Bernardino National Forests.

Comment 6: One peer reviewer indicated that the recent genetic research conducted by Macey et al. (2001) suggested that the southern DPS of the mountain yellow-legged frog is in fact a separate species instead of a DPS, and that he had submitted a paper for review concerning this proposed taxonomic change.

Our Response: In this final rule, we rely on the results of the recent genetic study by Macey et al. (2001) as further evidence that the southern populations of the mountain yellow-legged frog meet the policy definition of a distinct vertebrate population segment. While the results of this study provide substantial information concerning the taxonomy and evolutionary history of the mountain yellow-legged frog, Macey et al. (2001) do not suggest the four subgroups constitute separate species. We appreciate the information concerning the proposed taxonomic changes; and look forward to reviewing this new information following publication in a peer-reviewed journal.

Section 4 of the Endangered Species Act (16 U.S.C. 1531 et seq. ) and the regulations (50 CFR part 424) that implement the listing provisions of the Act set forth the procedures for adding species to the Federal list of endangered and threatened species. A species may be determined to be endangered or threatened due to one or more of the five factors described in section 4(a)(1). These factors and their application to the southern California DPS of mountain yellow-legged frogs are discussed below:

The seven remaining occurrences of the southern California DPS of mountain yellow-legged frog occur within three drainages; five are within a drainage in the San Gabriel Mountains, one population inhabits a drainage in the San Bernardino Mountains, and one is in the San Jacinto Mountains. Most of the known locations of this DPS occur on lands administered by the USFS. The extremely limited number and small size of the remaining populations makes this DPS of mountain yellow-legged frog particularly vulnerable to extirpation resulting from localized habitat alteration or degradation, and stochastic (random, naturally occurring) events such as fire or drought (Backlin et al. 2002).

Alteration or degradation of habitat for this DPS within ANF and SBNF could result from recreational activities including hiking, mountain climbing, camping, swimming, stocking of trout for fishing, and suction dredge mining for gold; or other human-related impacts including release of toxic or hazardous materials into stream reaches inhabited by the DPS (Jennings 1995, Backlin et al. 2002, USFS 2002). In areas occupied by this DPS, human use in and along streams can disrupt the development, survivorship, and recruitment of eggs, larvae, and adult frogs (Jennings 1995; Stewart in litt. 1995), and can change the character of a stream and its bank and associated vegetation in ways that make whole sections of a stream less suitable for the species.

The following table identifies known recreational activities or other factors that may affect one or more of the remaining populations of the southern California DPS of mountain yellow-legged frog.

Suction dredge mining for gold has occurred in a portion of the East Fork, San Gabriel River within the Sheep Mountain Wilderness Area. The dumping of trash and toxic materials (soap, motor oil, mercury) has also occurred in this area. (Jennings 1995). Some of the habitat effects of suction dredging on streams are described by Harvey (1986), who found that dredging may locally alter substrates and change habitat for fish and invertebrates. Consequently, disturbance to streambed substrates and water quality resulting from extensive suction dredging activity at or near a mountain yellow-legged frog breeding site could have harmful effects on eggs and developing larvae. Dumping of trash and toxic materials can degrade water quality, also with adverse effects on eggs and developing larvae.

Numerous museum specimens from many localities document that mountain yellow-legged frogs from the southern DPS have been collected for scientific purposes for decades (Jennings and Hayes 1994). Because the DPS has declined precipitously, resulting in a limited number of small populations, little scientific collecting of the southern DPS would likely be authorized. Collecting for scientific or recreational purposes, if it did occur, could seriously increase the probability of extirpation of any of the remaining populations, potentially reducing the ability of the DPS to survive and recover.

Predation by introduced fish, primarily rainbow trout, is one of the best-documented causes of the decline of Sierran mountain yellow-legged frogs. Careful study of the distributions of introduced trout and mountain yellow-legged frogs over several years has shown conclusively that introduced trout have had negative impacts on mountain yellow-legged frogs over much of the Sierra Nevada due to predation of tadpoles and other life stages (Bradford 1989, Knapp 1996, Knapp and Matthews 2000). Bradford (1989) and Bradford et al. (1993) concluded that introduced trout eliminate many populations of mountain yellow-legged frogs and the presence of trout in intervening streams sufficiently isolates other frog populations so that recolonization after stochastic local extirpations is essentially impossible. This mechanism is sufficient to explain the extirpation of Sierra Nevada mountain yellow-legged frogs from the majority of sites they once inhabited. Alone or in combination with other factors, introduced trout may have contributed to the widespread decline of the southern DPS as well.

Virtually all streams in the mountains of southern California contain populations of introduced rainbow trout, and until recently, trout were routinely released by California Department of Fish and Game in Dark Canyon and Fuller Mill Creek in the San Jacinto Mountains, and City Creek in the San Bernardino Mountains. Most of the other streams still occupied by mountain yellow-legged frogs have histories of trout introductions. However, the remaining frog occurrences in these streams are almost all in the small headwater sections where barriers restrict upstream movement of trout. While there have been no studies that specifically looked at the interaction between trout and stream-dwelling mountain yellow-legged frogs in southern California, Cooper et al. (1986) found trout eliminated stream-dwelling treefrog ( Hyla spp.) tadpoles in Rattlesnake Creek within the Santa Ynez Mountains. Wherever the two species co-occur, trout are likely to heavily impact mountain yellow-legged frog populations by eliminating or keeping populations low and limiting dispersal (Bradford 1989, Bradford et al. 1993). Knapp and Matthews (2000) suggested that mountain yellow-legged frog populations co-occurring with trout generally represent “sink” populations (a population in which the mortality rate exceeds the birth rate). Consequently, co-occurrence of mountain yellow-legged frogs and trout is insufficient evidence that trout have had relatively minor effects on frogs, because the persistence of these frog occurrences is likely dependent on immigration from source populations (Knapp and Matthews 2000). The widespread occurrence of introduced trout and continued releases in the mountains of southern California may make it very difficult to recover the DPS.

Another introduced predator that could have effects on the DPS similar to those of the trout, but on a more limited scale, is the bullfrog ( Rana catesbeiana ). Bullfrogs have been listed among the threats to other western frogs (61 FR 25813, Kiesecker and Blaustein 1998) and arroyo toads (59 FR 64859). Bullfrogs are now widespread in southern California and occur in many drainages formerly occupied by mountain yellow-legged frogs. The negative effects of bullfrogs on mountain yellow-legged frogs in the mountains of southern California are probably less widespread than those of introduced trout because there is less overlap in their occurrence. Any habitat alterations that are favorable to bullfrogs, however, will likely cause them to become locally abundant. In areas where mountain yellow-legged frogs occur, an increase of bullfrogs could further isolate the remaining populations; thereby potentially reducing the ability of the DPS to survive and recover.

Bradford (1991) documented the loss of a Sierra Nevada population of mountain yellow-legged frogs due to the combined effect of “red-leg” disease (caused by the freshwater bacterium Aeromonas hydrophila ) and predation by Brewer's blackbirds ( Euphagus cyanocephalus ). Another pathogen that is generating concern among those who study amphibian declines is the chytrid fungus Batrachochytrium dendrobatidis. Chytrid fungus may be seriously affecting amphibians by attacking the mouthparts of tadpoles affecting their ability to feed. Chytrid fungus occurs in many places around the world, and has recently been discovered on larval and recently metamorphosed mountain yellow-legged frogs in the Sierra Nevada (Fellers et al. 2001). Because of the small and isolated nature of the remaining occurrences in southern California, disease could be significantly detrimental.

Existing regulatory mechanisms have not stopped the decline of mountain yellow-legged frogs in southern California. Existing regulatory mechanisms that could provide some protection for the mountain yellow-legged frog include: (1) State laws, including the California Endangered Species Act (CESA), California Environmental Quality Act (CEQA), and section 1603 of the California Fish and Game Code; (2) Federal laws and regulations including the National Environmental Policy Act (NEPA), the Endangered Species Act in those cases where this species occurs in habitat occupied by other listed species, Fish and Wildlife Coordination Act, and section 404 of the Federal Clean Water Act; and (3) local land use processes and ordinances.

The State of California considers the mountain yellow-legged frog a species of special concern, but it is not listed as a threatened or endangered species under the CESA. Consequently, the species receives no protection under CESA. California Sport Fishing Regulations include the mountain yellow-legged frog as a protected species that may not be taken or possessed at any time except under special permit from the CDFG, however, the protection afforded by this regulation does not address the significant threats to the DPS presented by such factors as habitat alteration or predation by nonnative species.

CEQA requires a full public disclosure of the potential environmental impact of proposed projects. The public agency with primary authority or jurisdiction over the project is designated as the lead agency, and is responsible for conducting a review of the project and consulting with other agencies concerned with resources affected by the project. Section 15065 of CEQA guidelines require a finding of significance if a project has the potential to “reduce the number or restrict the range of a rare or endangered plant or animal.” Species that are eligible for listing as rare, threatened, or endangered but are not so listed are given the same protection as those species that are officially listed with the State. Once significant impacts are identified, the lead agency has the option to require mitigation for effects through changes in the project or to decide that overriding considerations make mitigation infeasible. In the latter case, projects may be approved that cause significant environmental damage, such as elimination of endangered species or their habitats. Protection of listed species through CEQA is, therefore, at the discretion of the lead agency involved. CEQA provides that, when overriding social and economic considerations can be demonstrated, project proposals may go forward, even in cases where the continued existence of the species may be threatened, or where adverse impacts are not mitigated to the point of insignificance.

The arroyo toad ( Bufo californicus ), a federally listed endangered species, is present in the San Gabriel Mountains. Because the two species occupy different areas and habitats in the San Gabriel Mountains and the arroyo toads are not known to occur elsewhere in the limited range of the mountain yellow-legged frog, we believe there is limited benefit to the mountain yellow-legged frog from the presence of the arroyo toad.

The Fish and Wildlife Coordination Act and section 404 of the Clean Water Act will afford some protection to mountain yellow-legged frogs where they occur in waters of the United States that require a permit from the U.S. Army Corps of Engineers (Corps). Under section 404 of the Clean Water Act, the Corps regulates the discharge of fill material into waters of the United States. Through the Fish and Wildlife Coordination Act, we may recommend discretionary conservation measures to avoid, minimize, and offset impacts to fish and wildlife resources resulting from a water development project authorized by the Corps. Section 404 regulations require that applicants obtain a nationwide, regional, or individual permit for projects that discharge fill material into waters of the United States.

The U.S. Forest Service's Angeles and San Bernardino National Forests manage lands containing all known locations of mountain yellow-legged frogs in southern California. The USFS has included mountain yellow-legged frogs on its Region 5 list of sensitive species as of June 8, 1998. The USFS has been formulating a conservation assessment and strategy for the mountain yellow-legged frog in southern California in a cooperative effort with other agencies, but this effort is still in progress (USFS 2002). As noted in the discussion of the factors above, the presence of introduced trout on USFS lands is believed to be a serious threat to the mountain yellow-legged frog. Additionally, because the DPS has been reduced to small isolated remnant populations, recreational activities ( e.g., bathing, camping, hiking, etc. ) occurring on USFS lands may threaten the remaining frogs. The perilous status of the mountain yellow-legged frog reflects the overall inability of existing CEQA, National Environmental Policy Act, and other Federal, State, and local ordinances and statutes to protect and provide for the conservation of this DPS.

The southern California DPS of mountain yellow-legged frog is considered at high risk of extirpation because very few locations remain, the locations are isolated from one another, and each location likely contains only a small number of frogs. Few populations and restricted habitat make the southern California DPS of mountain yellow-legged frog susceptible to extinction or extirpation from all or a portion of its range due to random events such as fire, flood or drought. In addition, small population size may increase the susceptibility of the remaining mountain yellow-legged frog populations in southern California to extirpation from random demographic, environmental and/or genetic events (Shaffer 1981, 1987; Lande 1988; Noss and Cooperrider 1994; Meffe and Carroll 1997, Primack 1998). Finally, disruption of source population and dispersal dynamics ( e.g., source populations that provide individuals that can disperse to other populations or colonize new areas which assists in the stability and recovery of the species) may increase the risk of extinction of the southern California populations of the frog (Noss and Cooperrider 1994). These effects are discussed briefly below.

Unpredictable events such as fire could potentially eliminate entire populations of this DPS (Stewart in litt. 1995, Jennings 1995). Several of the remaining populations of mountain yellow-legged frog in southern California occur within areas where vegetation and fuel levels have increased. The increased fuel levels could lead to fires that burn more intensely, removing most of the vegetation which would affect the amount of available stream shade and could increase sedimentation within a stream channel due to exposed soils (USFS 2002).

Mountain yellow-legged frog populations in the southern California DPS are also at risk from floods and drought. Unlike the lake environments utilized by the Sierra Nevada populations of the species, the streams inhabited by the southern California DPS flow through narrow canyons that provide little opportunity for off-channel refuge for the species during flood events (USFS 2002). Stewart ( in litt. 1995) believed that flooding during the winter of 1969 was a major factor in the disappearance of mountain yellow-legged frogs from Evey Canyon in the San Gabriel Mountains.

Mountain yellow-legged frogs are almost always found in or immediately adjacent to water (USFS 2002). Periods of prolonged drought could have a significant effect on one or more of the remaining populations of this DPS as a result of reduced reproduction and reproductive success (i.e., mortality of eggs and tadpoles) (USFS 2002).

Demographic events that may put small populations at risk involve chance variation in age, sex ratios, and other population characteristics, which can change birth and death rates (Shaffer 1981, 1987; Lande 1988; Noss and Cooperrider 1994; Meffe and Carroll 1997). A limited survey conducted by Jennings (1995) found skewed sex ratios in the populations of mountain yellow-legged frogs in the San Gabriel Mountains.

Small, isolated populations are also vulnerable to genetic drift (random changes in gene frequencies) and inbreeding (mating among close relatives). Genetic drift and inbreeding may lead to reductions in the ability of individuals to survive and reproduce ( i.e., reductions in fitness) in small populations. In addition, reduced genetic variation in small populations may make any species less able to successfully adapt to future environmental changes (Shaffer 1981, 1987; Noss and Cooperrider 1994, Primack 1998).

Finally, we believe that the connectivity of populations within this DPS has been substantially reduced compared to the recent past. Loss of one or more of the remaining populations within the southern California DPS would cause the remaining populations to become even more isolated from one another, thereby reducing the likelihood of its long-term survival and recovery.

We have evaluated the best available scientific and commercial information regarding the status of, and threats to, the southern California DPS of mountain yellow-legged frog in determining its eligibility for listing pursuant to the Act. Based on our evaluation, we determine that listing of the southern California DPS of mountain yellow-legged frog as endangered, under the Act, is warranted and appropriate.

Critical habitat is defined in section 3 of the Act as: (i) the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the provisions of section 4 of the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection, and (ii) specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species (16 U.S.C. 1532(5)). “Conservation” means the use of all methods and procedures needed to bring an endangered or threatened species to the point at which protection under the Act is no longer necessary.

Critical habitat designation directly affects only Federal agency actions through consultation under section 7(a)(2) of the Act. Section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of a listed species or destroy or adversely modify its critical habitat.

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

Due to the small number and sizes of populations, the mountain yellow-legged frog is vulnerable to unrestricted collection, vandalism, or other disturbance. We are concerned that these threats might be exacerbated by the publication of critical habitat maps and further dissemination of location information. However, we have examined the evidence available for the mountain yellow-legged frog and have not found significant specific evidence of taking, vandalism, collection, or trade of this species or any similarly situated species. Consequently, consistent with applicable regulations (50 CFR 424.12(a)(1)(i)) and recent case law, we do not expect that the identification of critical habitat will increase the degree of threat to this species of taking or other human activity.

In the absence of a finding that critical habitat would increase threats to a species, if there are any benefits to critical habitat designation, then designating critical habitat is prudent. In the case of the southern California DPS of mountain yellow-legged frog, there may be some benefits to designation of critical habitat. The primary regulatory effect of critical habitat is the section 7 requirement that Federal agencies refrain from taking any action that destroys or adversely modifies critical habitat. While a critical habitat designation for habitat currently occupied by this species would not be likely to change the section 7 consultation outcome because an action that destroys or adversely modifies such critical habitat would also be likely to result in jeopardy to the species, there may be instances where section 7 consultation would be triggered only if critical habitat is designated. Examples could include unoccupied habitat or occupied habitat that may become unoccupied in the future. There may also be some educational or informational benefits to designating critical habitat. Therefore, we find that critical habitat is prudent for the southern California DPS of the mountain yellow-legged frog.

However, the deferral of the critical habitat designation for this DPS of the mountain yellow-legged frog will allow us to concentrate our limited resources on higher priority critical habitat designations and other listing actions, while allowing us to put in place protections needed for the conservation of the southern California DPS of mountain yellow-legged frog without further delay. This is consistent with section 4(b)(6)(C)(i) of the Act, which states that final listing decisions may be issued without concurrent designation of critical habitat if it is essential to the conservation of the species that such determinations be promptly published. We will prepare a critical habitat designation for this species in the future at such time when our available resources allow it.

Conservation measures provided to species listed as endangered or threatened under the Act include requirements for Federal protection, prohibitions against certain practices, and recovery actions. The Act provides for possible land acquisition/exchange and cooperation with the States. The protection required of Federal agencies and the prohibitions against certain activities involving listed species are discussed, in part, below. Listing of the southern California DPS of the mountain yellow-legged frog as endangered will provide for recovery planning including the development of a recovery plan if it will promote the conservation of the DPS. Such a plan will bring together both State and Federal efforts for the mountain yellow-legged frog's conservation. The plan will establish a framework for cooperation and coordination among agencies in conservation efforts. The plan will set recovery priorities and estimate costs of various tasks necessary to accomplish them. It will also describe site-specific management actions necessary to achieve conservation and survival of the southern California DPS of the mountain yellow-legged frog.

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

Federal agencies expected to have involvement with consultations under section 7 of the Act regarding the southern California DPS of mountain yellow-legged frog include the USFS through its management activities and the Corps through its permit authority under section 404 of the Clean Water Act. These agencies either manage lands containing the DPS or authorize, fund, or otherwise conduct activities that may affect the DPS.

In 2001, the Service issued its biological and conference opinions on the Land and Resource Management Plans (LRMP) for the four southern California National Forests (USFWS 2001) addressing activities on the Angeles and San Bernardino National Forests. The southern California DPS of mountain yellow-legged frog, proposed for listing as endangered, was included in a conference opinion. Measures contained in a conference opinion are advisory in nature.

Conservation recommendations for the southern California DPS of mountain yellow-legged frog included: (1) Installation of signage along trails adjacent to areas occupied by the DPS to encourage the public to remain on designated trails; (2) removal of picnic equipment or campsites (barbeque pits, picnic tables) adjacent to areas occupied by the DPS; (3) organization of workshops to educate campground permittees about this DPS of mountain yellow-legged frog; (4) acquisition of habitat for the DPS within private inholdings; (5) assignment of additional patrols to prevent illegal suction dredge mining within the Sheep Mountain Wilderness Area of Angeles National Forest; and (6) relocation of a trail adjacent to an area occupied by the DPS within Little Rock Canyon.

The conference opinion addressing the southern DPS of mountain yellow-legged frog may be adopted as a biological opinion following the listing of this DPS under the Act, if we review the proposed action and determine there have been no significant changes in the action as planned or in the information used during the conference. If we determine the conference opinion may be adopted as the biological opinion, no further consultation pursuant to section 7 will be necessary, unless: (1) The amount of incidental take is exceeded; (2) new information reveals effects of the agency action that may affect the species or critical habitat in a manner and to an extent not considered in the conference opinion; (3) the agency action is subsequently modified in a manner that causes an effect to the species or critical habitat that was not considered in the conference opinion; or (4) a new species is listed or critical habitat designated that may be affected by the action.

The Act and implementing regulations found at 50 CFR 17.21 set forth a series of general prohibitions and exceptions that apply to all endangered wildlife. These prohibitions under section 9 of the Act, in part, make it illegal for any person subject to the jurisdiction of the United States to take (including harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt any such conduct), import or export, transport in interstate or foreign commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to agents of the Service and State conservation agencies.

It is the policy of the Service, published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practical at the time a species is listed those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of listing a species pursuant to the Act on proposed and ongoing activities within the species' range. We believe the following actions would not likely result in a violation of section 9:

Possession, delivery, or movement, including interstate transport and import into or export from the United States, involving no commercial activity, of dead specimens of this taxon that were collected prior to the date of publication in the Federal Register of the final regulation adding this taxon to the list of endangered species.

Activities we believe will result in a violation of section 9 of the Act include, but are not limited to:

(1) Take of southern California mountain yellow-legged frogs without a permit, which includes harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting, or attempting any of these actions;

(2) Possessing, selling, delivering, carrying, transporting, or shipping illegally taken mountain yellow-legged frogs;

(3) Interstate and foreign commerce (commerce across State and international boundaries) and import/export (as discussed earlier in this section);

(4) Introduction of non-native species that compete or hybridize with, or prey on, mountain yellow-legged frogs;

(5) Destruction or alteration of mountain yellow-legged frog habitat by suction dredging, channelization, diversion, in-stream vehicle operation or rock removal, or other activities that result in the destruction or significant degradation of cover, channel stability, substrate composition, temperature, and habitat used by the species for foraging, cover, migration, and breeding; and

(6) Discharging or dumping toxic chemicals, silt, or other pollutants into waters supporting mountain yellow-legged frogs by mining, or other developmental or land management activities that result in destruction or significant degradation of cover, channel stability, substrate composition, temperature, and habitat used by the species for foraging, cover, migration, and breeding.

Questions regarding whether specific activities may constitute a violation of section 9 should be directed to the Field Supervisor, Carlsbad Fish and Wildlife Office ( see FOR FURTHER INFORMATION CONTACT ). Requests for copies of the regulations and inquiries regarding them may be addressed to the U.S. Fish and Wildlife Service, Ecological Services, Endangered Species Permits, 911 NE. 11th Avenue, Portland, OR 97232-4181 (Telephone 503/231-6241; FAX 503/231-6243).

Permits may be issued to carry out otherwise prohibited activities involving endangered wildlife species under certain circumstances. Regulations governing these permits are at 50 CFR 17.22 and 17.23. Such permits are available for scientific purposes, to enhance the propagation or survival of the species, for incidental take in connection with otherwise lawful activities, and/or for economic hardship.

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act of 1973, as amended. A notice outlining the Service's reasons for this determination was published in the Federal Register on October 25, 1983 (48 FR 49244).

This rule does not contain any collections of information that require Office of Management and Budget (OMB) approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An information collection related to the rule pertaining to permits for endangered and threatened species has OMB approval and is assigned control number 1018-0094, which expires July 31, 2004. This rule does not alter that information collection requirement. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

A complete list of all references cited herein are available upon request from the Carlsbad Fish and Wildlife Office (see ADDRESSES ).

The primary author of this final rule is the Carlsbad Fish and Wildlife Office (see ADDRESSES ).

In 1997, Amendment 5 to the FMP established a limited entry program for the Illex squid fishery in response to a concern that fishing capacity could otherwise expand to overexploit the stock. At the time the program was established, there were concerns that the capacity of the limited entry vessels might prove, over time, to be insufficient to fully exploit the annual quota. In response to this concern, a 5-year sunset provision was placed on the Illex squid limited entry program, and it was scheduled to end July 1, 2002. However, in recent years the limited entry fleet has demonstrated that it has sufficient capacity to harvest the long-term potential yield from this fishery. The Mid-Atlantic Fishery Management Council (Council) must prepare an amendment to the FMP to evaluate whether or not the limited entry program should be extended permanently. In the meantime, this action extends the Illex squid moratorium through July 1, 2003, to prevent overcapitalization while the amendment is being prepared and considered by the Council. This extension complies with the criteria in section 303(b)(6) of the Magnuson-Stevens Fishery Conservation and Management Act. The extension will allow the Council additional time to consider long-term management for the Illex squid fishery, including the limited entry program. Vessels that took small quantities of Illex squid in the past may continue to do so under the incidental catch provision of the FMP.