A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Cessna Model 650 airplanes was published in the Federal Register on March 28, 2002 (67 FR 14893). That action proposed to require a one-time inspection of the side brace mechanism assemblies of the left and right main landing gears (MLG) to detect any incorrect part number, and corrective actions if necessary.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the single comment received.

The commenter supports the proposed rule.

After careful review of the available data, including the comment noted above, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

There are approximately 353 Model 650 airplanes of the affected design in the worldwide fleet. The FAA estimates that 282 airplanes of U.S. registry will be affected by this AD, that it will take approximately 10 work hours per airplane to accomplish the required actions, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $169,200, or $600 per airplane.

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

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

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

The Austro Control GmbH (Austro Control), which is the airworthiness authority for Austria, recently notified FAA that an unsafe condition may exist on all Diamond Models H-36 “Dimona”, HK 36 R “Super Dimona”, HK 36 TC, HK 36 TS, HK 36 TTC, HK 36 TTC-ECO, HK 36 TTC-ECO (Restricted Category), and HK 36 TTS sailplanes. The Austro Control reports that during the preflight of one sailplane, the long aileron push rod was found to be broken. On several sailplanes, the aileron push control rods in both wings were found damaged due to contact or interference with the support for the aileron bellcrank.

If the damaged aileron push control rods are not detected and corrected, the damage could result in failure of the aileron push rods and decreased control. Such failure could lead to aeroelastic flutter.

We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to all Diamond Models H-36 “Dimona”, HK 36 R “Super Dimona”, HK 36 TC, HK 36 TS, HK 36 TTC, HK 36 TTC-ECO, HK 36 TTC-ECO (Restricted Category), and HK 36 TTS sailplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on May 20, 2002 (67 FR 35459). The NPRM proposed to require you to inspect the long aileron push rods in both wings for damage and modify the push rods.

The FAA encouraged interested persons to participate in the making of this amendment. We did not receive any comments on the proposed rule or on our determination of the cost to the public.

After careful review of all available information related to the subject presented above, we have determined that air safety and the public interest require the adoption of the rule as proposed except for minor editorial corrections. We have determined that these minor corrections:

We estimate that this AD affects 45 sailplanes in the U.S. registry.

We estimate the following costs to accomplish the inspection:

Normally, FAA uses a 10-hour TIS compliance time for urgent safety of flight conditions. However, sailplane operation varies among operators. It might take operators between 3 months to 12 months or more to accumulate 10 hours TIS. For this reason, FAA has determined that the compliance time of this AD should be 10 hours TIS to ensure this condition is corrected in a timely manner but does not unduly penalize operators.

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

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

The Direction Generale de L'Aviation Civile (DGAC), which is the airworthiness authority for France, recently notified the FAA that an unsafe condition may exist on Turbomeca S.A. Arriel models 1A, 1A1, 1B, 1D, and 1D1 turboshaft engines. The DGAC advises that two reports were received of the cantilevered axis of the free turbine moving from its design position and inducing blade trajectories outside the current design, free turbine containment area. This condition can lead to uncontainment of the free turbine during an overspeed event.

Turbomeca S.A. has issued service bulletin (SB) No. A292 72 0206, Update 2, dated October 23, 2000, which specifies installation of modification TU 254, containment shield ring made of INCO 625 material, SB No. A292 72 0207, Update 2, dated October 23, 2000, which specifies installation of modification TU 255, additional containment shield ring made of Z10CNT 18-11 material, and SB No. 292 72 0208, Update 2, dated May 13, 1996, which specifies installation of modification TU 259, double support around the reduction gearbox free turbine bearing housing, to maintain bearing centering. The DGAC classified these SB's as mandatory and issued AD 1995-069(A)R3, dated March 7, 2001, to assure the airworthiness of these Turbomeca S.A. engines in France.

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

Since an unsafe condition has been identified that is likely to exist or develop on other Turbomeca S.A. Arriel models 1A, 1A1, 1B, 1D, and 1D1 turboshaft engines of the same type design, this AD is being issued to prevent uncontainment of the free turbine during an overspeed event, resulting in damage to the helicopter. This AD requires installation of containment shield rings around the free turbine blade area, and installation of a double support around the gearbox free turbine bearing housing to maintain bearing centering. The actions must be done in accordance with the SB's described previously.

Since there are currently no domestic operators of this engine model affected by the adoption of this rule, notice and opportunity for prior public comment are unnecessary. Therefore, a situation exists that allows the immediate adoption of this regulation, and good cause exists for making this amendment effective in less than 30 days.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES. All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NE-35-AD.” The postcard will be date stamped and returned to the commenter.

This final rule does not have federalism implications, as defined in Executive Order 13132, because it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the FAA has not consulted with state authorities prior to publication of this final rule.

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

Transport Canada, which is the airworthiness authority for Canada, notified FAA that an unsafe condition may exist on certain de Havilland Models DHC-2 Mk. I, DHC-2 Mk. II, and DHC-2 Mk. III airplanes. Transport Canada reports numerous incidents of corrosion of the front fuselage struts. Further analysis of the front fuselage struts reveals that these parts are not life limited and incur corrosion and fatigue damage over time.

Corrosion damage, if not detected and corrected, could result in failure of the front fuselage and possible reduced or loss of control of the airplane.

We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain de Havilland Models DHC-2 Mk. I, DHC-2 Mk. II, and DHC-2 Mk. III airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on March 28, 2002 (67 FR 14886). The NPRM proposed to establish a life limit for the front fuselage struts and would require you to repetitively replace the front fuselage struts every 15 years or repetitively inspect the struts for corrosion or fatigue damage and replace when the damage exceeds a certain level.

The FAA encouraged interested persons to participate in the making of this amendment. We did not receive any comments on the proposed rule or on our determination of the cost to the public.

After careful review of all available information related to the subject presented above, we have determined that air safety and the public interest require the adoption of the rule as proposed except for minor editorial corrections. We have determined that these minor corrections:

We estimate that this AD affects 354 airplanes in the U.S. registry.

We estimate the following costs to accomplish the replacement:

The replacement compliance time of this AD is “initially replace upon accumulating 15 years from the date of installation of the front fuselage struts or within the next 12 calendar months after the effective date of this AD, whichever occurs later, and thereafter at intervals not to exceed 15 years.” If the repetitive inspection option is used, then the repetitive compliance time interval will be at 1 and 5 years depending on the method used (provided certain corrosion or damage limits are not exceeded).

The compliance of this AD is presented in calendar time instead of hours TIS. The need for establishing a life limit for the front fuselage struts as specified in this AD is the result of reports of corrosion found in this area on the affected airplanes. Corrosion can occur regardless of whether the aircraft is in operation. In order to ensure that the unsafe condition specified in this AD does not go undetected if the airplane was not in operation for an extended period of time, the compliance is presented in calendar time instead of hours TIS.

The Regulatory Flexibility Act of 1980 was enacted by Congress to assure that small entities are not unnecessarily or disproportionately burdened by government regulations. This Act establishes “as principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.” To achieve this principle, the Act requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions. The Act covers a wide range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the determination is that the rule will, the Agency must prepare a regulatory flexibility analysis as described in the RFA.

However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

The FAA has determined that this AD could have a significant economic impact on a substantial number of small entities. However, we have determined that we should continue with this action in order to address the unsafe condition and ensure aviation safety.

You may obtain a copy of the complete Regulatory Flexibility Analysis (entitled “Final Regulatory Flexibility Analysis”) that was prepared for this AD from the Docket file at the location listed under the ADDRESSES section of this document.

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

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

Pharmacia and Upjohn Co., 7000 Portage Rd., Kalamazoo, MI 49001-0199, filed supplemental applications to NADAs 124-309 and 125-476 that provide for use of MGA (melengestrol acetate) Premixes and RUMENSIN (monensin sodium) Premixes to make two-way, dry and liquid, combination drug Type C medicated feeds and to NADAs 138-792 and 138-870 that provide for use of MGA Premixes, RUMENSIN Premixes, and TYLAN (tylosin phosphate) Premixes to make three-way, dry and liquid, combination drug Type C medicated feeds for heifers fed in confinement for slaughter. These supplemental NADAs add the claim for use of 50 to 360 mg of monensin per head per day for prevention and control of coccidiosis due to Eimeria bovis and E. zuernii . Pharmacia and Upjohn Co. also filed supplemental applications to NADAs 138-995 and 139-192 that provide for combination use of MGA Premixes and TYLAN Premixes, and to NADAs 138-792 and 138-870, described previously. These supplemental NADAs extend the dose of tylosin to a range of 60 to 90 mg per head per day to reduce the incidence of liver abscesses caused by Fusobacterium necrophorum and Actinomyces (Corynebacterium) pyogenes and provide for use of liquid Type C medicated feeds in combinations of melengestrol acetate and tylosin with and without monensin in heifers fed in confinement for slaughter. The supplemental applications are approved as of February 26, 2002, and the regulations are amended in § 558.342 (21 CFR 558.342) to reflect the approvals. Where appropriate, the basis of approval is discussed in freedom of information summaries.

Section 558.342 is also being revised to include a table format and to correct drug labeler codes to reflect recent changes of sponsorship for single-ingredient lasalocid (66 FR 46705, September 7, 2001) and oxytetracycline (66 FR 47962, September 17, 2001) Type A medicated articles. Section 558.355 is also being revised to delete a redundant entry and to add a cross-reference.

In accordance with the freedom of information provisions of 21 CFR part 20 and 514.11(e)(2)(ii), summaries of safety and effectiveness data and information submitted to support approval of these applications may be seen in the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

The agency has determined under 21 CFR 25.33(a)(2) and (a)(6) that these actions are of a type that do not individually or cumulatively have a significant effect on the human environment. Therefore, neither environmental assessments nor environmental impact statements are required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

Elanco Animal Health, A Division of Eli Lilly & Co., Lilly Corporate Center, Indianapolis, IN 46285, filed two supplemental applications to NADA 140-863 for PAYLEAN (ractopamine hydrochloride), a Type A medicated article used to make Type B and Type C medicated feeds for finishing swine. The first supplemental NADA provides for use of a 45-g/lb strength of PAYLEAN and for amending the assay limits for Type B and Type C medicated feeds containing ractopamine. The second supplemental NADA provides for addition of cautionary statements to labeling. The supplemental NADAs are approved as of February 27 and June 1, 2001, respectively, and the regulations are amended in §§ 558.4 and 558.500 (21 CFR 558.4 and 558.500) to reflect the approval.

In addition, § 558.500 is being revised to correct the wording of the indications for the use of ractopamine alone or in combination with tylosin.

Approval of the first supplemental NADA did not require review of safety or effectiveness data; therefore, a freedom of information summary is not required.

In accordance with the freedom of information provisions of 21 CFR part 20 and 514.11(e)(2)(ii), a summary of safety and effectiveness data submitted to support approval of the second supplemental application may be seen in the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

The agency has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

Section 401(a)(2) generally requires a trust instrument forming part of a pension, profit sharing or stock bonus plan to prohibit the diversion of corpus or income for purposes other than the exclusive benefit of employees or their beneficiaries. Section 403(c)(1) of the Employee Retirement Income Security Act of 1974 (ERISA), Public Law 93-406 (88 Stat. 829), contains a parallel rule that prohibits the assets of a plan from inuring to the benefit of any employer and that requires the plan assets be held for the exclusive purposes of providing benefits to plan participants and their beneficiaries and defraying reasonable expenses of administering the plan. Under these rules, employer contributions to qualified plans were generally not refundable. However, a contribution made due to a mistake of fact was permitted to be returned to the employer within one year after the date of the contribution.

The Multiemployer Pension Plan Amendments Act of 1980 (Public Law 96-364, 410(b) (94 Stat. 1208,1308)) amended section 401(a)(2) of the Internal Revenue Code to reflect Congressional concern that the requirements of prior law for the return of an employer contribution were too narrow in the multiemployer context. Under section 401(a)(2), as amended, a contribution made to a multiemployer plan due to a mistake of fact or law may be returned within six months after the date that the plan administrator determines that it was made in error. Section 401(a)(2) was also amended by MPPAA to permit the return of any withdrawal liability payment determined to be an overpayment made due to a mistake of fact or law within six months after that determination.

The effective date of section 410(b) of MPPAA was January 1, 1975, except that in the case of any determination by a plan administrator made before September 26, 1980 (the date of enactment), that a past contribution was made by of mistake of fact or law was deemed to have been made on the date of enactment. Accordingly, the period of time for refund of these contributions was 6 months from the date of enactment.

The IRS published a notice of proposed rulemaking (EE-133-80) in the Federal Register on March 11, 1983, (48 FR 10374) to amend the Income Tax Regulations (26 CFR part 1) under section 401(a)(2) of the Internal Revenue Code of 1954 (Code). At that time, the public was invited to comment in writing, or to make a request for public hearing, upon issues addressed in the proposals. Eight comments were received, but no public hearing was requested.

The proposed amendment to the regulations would have been numbered § 1.401(a)-3. However, in the intervening period of time the IRS has changed its system of numbering regulations to more closely align the regulation number to the number of the underlying Code section. Accordingly, the regulations are being finalized as § 1.401(a)(2)-1.

After consideration of all comments, the proposed provisions are revised and adopted as final regulations under this Treasury decision.

In general, the final regulations follow the proposed regulations with minor changes described below.

1. Amount to be refunded. Several comments concerned the amount to be refunded to the employer when a determination of mistake is made by the plan administrator. Questions were raised relating to the earnings and losses attributable to the excess contribution or overpayment of withdrawal liability, and the Pension Benefit Guaranty Corporation rules regarding the refund of overpayments of withdrawal liability.

These final regulations provide a narrow exception to the general rule that trust assets not be used for, or diverted to, purposes other than the exclusive benefit of employees. That the employer may, under limited circumstances, receive a refund of a mistaken contribution does not detract from the primary purpose of ERISA to protect individual pension rights and maintain the solvency and integrity of pension funds.

In general, any earnings attributable to an excess contribution shall not be returned to the employer, and any losses attributable to an excess contribution must reduce the amount to be returned to the employer. As a further limitation on the return of contributions, the final regulations provide that a refund of an excess contribution must in no event reduce a participant's account balance in a defined contribution plan to an amount less than that amount which would properly have been in that participant's account had no mistake occurred.

In the case of an overpayment of withdrawal liability, established by the plan sponsor under section 4219(c)(2) of ERISA, the plan will not fail to satisfy section 401(a)(2) if, in accordance with Pension Benefit Guaranty Corporation regulations regarding the overpayment of withdrawal liability, the overpayment with interest is returned to the employer. ( See 29 CFR Ch. XL 4219.31(d)).

2. Amount to be included in income. In general, the amount of the excess contribution or overpayment must be included in gross income by the employer if the excess contribution or overpayment resulted in a tax benefit in a prior year. Any interest credited or paid on the refund of mistaken withdrawal liability payments must also be included in gross income by the employer.

These regulations apply for refunds made after July 22, 2002. However, plans and employers may apply the rules of these regulations to refunds made prior to that date.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the preceding proposed rule was issued prior to March 29, 1996, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply.

The principal author of these regulations is John T. Ricotta, Office of the Division Counsel/ Associate Chief Counsel (Tax Exempt/Government Entities). However, other personnel from the Service and Treasury Department participated in their development.

On March 27, 2002 (at 67 FR 14663), the PBGC published a proposed rule that would authorize a single member of PBGC's Appeals Board to decide routine appeals. The PBGC received no comments in response to the proposed rule and is issuing the final regulation without change.

Under the PBGC's regulation on Administrative Review of Agency Decisions (29 CFR part 4003), persons aggrieved by certain PBGC determinations may appeal to the PBGC Appeals Board, defined as “a board consisting of three PBGC officials.”

The PBGC has been studying its administrative appeals process to see how it can accelerate appeals processing while continuing to protect the rights of appellants. Experience has shown that many appeals involve simple factual issues or call for application of well-settled legal principles. The PBGC believes that cases that do not raise a significant issue of law or a precedent-setting issue can be properly decided by a single Appeals Board member, thereby expediting the appeals process. Accordingly, this final rule authorizes any one member of the Appeals Board to act for the Board in routine cases as described in the rule. The PBGC will continue to use 3-member panels for cases that involve a significant issue of law or a precedent-setting issue. This would include, for example, a benefit determination appeal in which the decision is expected to affect the benefits of other persons.

As a rule of agency organization, procedure, or practice, this rule is exempt from notice and public comment requirements. Because no general notice of proposed rulemaking is required, the Regulatory Flexibility Act does not apply to this rule. See 5 U.S.C. 601(2), 603, 604.

The PBGC has determined that good cause exists to dispense with the delayed effective date provisions of the Administrative Procedure Act as unnecessary. These amendments affect only the PBGC's processing of appeals and do not require any person other than the PBGC to take any action. Accordingly, the PBGC has decided to make these amendments effective immediately.

This rule is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Although the Secretary has decided to issue these final regulations without first publishing proposed regulations for public comment, we are interested in whether you think we should make any changes in these regulations. We will consider these comments in determining whether to revise the regulations.

To ensure that your comments have maximum effect, we urge you to identify clearly the specific section or sections of the regulations that each of your comments addresses and to arrange your comments in the same order as the regulations.

We invite you to assist us in complying with the specific requirements of Executive Order 12866 and its overall requirement of reducing regulatory burden that might result from these regulations. Please let us know of any further opportunities we should take to reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.

During and after the comment period, you may inspect all public comments about these regulations in room 3W115 at 400 Maryland Ave., SW., Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., Eastern time, Monday through Friday of each week except Federal holidays.

On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these regulations. If you want to schedule an appointment for this type of aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

On January 8, 2002, the Demonstration Grants for Indian Children program and Professional Development program were revised and recodified as Sections 7121 and 7122 of Subpart 2 of Part A of Title VII of the Elementary and Secondary Education Act of 1965 (ESEA), as amended by Pub. L. 107-110. These regulations incorporate the specific program requirements for both programs. They also include the application requirements for the Professional Development program that must be met in order for applications to be considered for funding and the requirements concerning the payback provisions applicable to that program.

Under Executive Order 12866, we have assessed the potential costs and benefits of this regulatory action.

The potential costs associated with the regulations are those resulting from statutory requirements and those we have determined to be necessary for administering these programs effectively and efficiently.

In assessing the potential costs and benefits—both quantitative and qualitative—of this regulatory action, we have determined that the benefits justify the costs.

We have also determined that this regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.

Executive Order 12866 and the Presidential memorandum on “Plain Language in Government Writing” require each agency to write regulations that are easy to understand.

The Secretary invites comments on how to make these regulations easier to understand, including answers to questions such as the following:

• Are the requirements in the regulations clearly stated?

• Do the regulations contain technical terms or other wording that interferes with their clarity?

• Does the format of the regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?

• Would the regulations be easier to understand if we divided them into more (but shorter) sections? (A “section” is preceded by the symbol “§ ” and a numbered heading; for example, § 263.9 When does payback begin?)

• Could the description of the regulations in the SUPPLEMENTARY INFORMATION section of this preamble be more helpful in making the regulations easier to understand? If so, how?

• What else could we do to make the regulations easier to understand?

Send any comments that concern how the Department could make these regulations easier to understand to the person listed in the ADDRESSES section of the preamble.

Under the Administrative Procedures Act (5 U.S.C. 553) the Department generally offers interested parties the opportunity to comment on proposed regulations. However, in order to make timely grant awards in fiscal year (FY) 2002, the Secretary has decided to issue these final regulations without first publishing proposed regulations for public comment. These regulations will apply to the FY 2002 grant competition only. The Secretary takes this action under section 437(d)(1) of the General Education Provisions Act.

The Secretary certifies that these regulations will not have a significant economic impact on a substantial number of small entities.

The small entities that are affected by these regulations are small local educational agencies (LEAs) receiving Federal funds under this program. However, the regulations will not have a significant economic impact on the small LEAs affected because the regulations do not impose excessive regulatory burdens or require unnecessary Federal supervision. The regulations impose minimal requirements to ensure the proper expenditure of program funds.

The Paperwork Reduction Act of 1995 does not require you to respond to a collection of information unless it displays a valid OMB control number. We display the valid OMB control number assigned to the collection of information in these final regulations at the end of the affected sections of the regulations.

This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

This document provides early notification of our specific plans and actions for this program.

The Secretary particularly requests comments on whether these regulations require transmission of information that any other agency or authority of the United States gathers or makes available.

You may view this document, as well as all other Department of Education documents published in the Federal Register , in text or Adobe Portable Document Format (PDF) on the Internet at the following site: http://www.ed.gov/legislation/FedRegister.

To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.

(a) In order to be eligible for either pre-service or in-service training programs, an applicant must be an eligible entity which means —

(1) An institution of higher education, including an Indian institution of higher education;

(2) A State educational agency in consortium with an institution of higher education;

(3) A local educational agency in consortium with an institution of higher education;

(4) An Indian tribe or Indian organization in consortium with an institution of higher education; or

(5) A Bureau-funded school.

(b) Bureau-funded schools are eligible applicants for —

(1) An in-service training program; and

(2) A pre-service training program when the Bureau-funded school applies in consortium with an institution of higher education that is accredited to provide the coursework and level of degree required by the project.

(c) Eligibility of an applicant requiring a consortium with any institution of higher education, including Indian institutions of higher education, requires that the institution of higher education be accredited to provide the coursework and level of degree required by the project.

NARA redesignated certain sections in Part 1228 in a rulemaking on December 2, 1999 (64 FR 67667). We inadvertently failed to amend § 1228.42 to reflect the redesignation of a referenced section. This amendment makes that correction to the CFR.

Throughout this document, “we,” “us” and “our” refer to EPA.

Table 1 lists the rules we are approving with the dates that they were adopted by the local air agencies and submitted by the California Air Resources Board (CARB).

On March 15, 2002, these rule submittals were found to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.

There are no previous versions of Rules 4662 and 4663 in the SIP, although the SJVUAPCD adopted earlier versions of rule 4661 on December 9, 1999, and CARB submitted it to us on February 23, 2000. We approved this version of Rule 4661 into the SIP on August 29, 2000. The SJVUAPCD adopted revisions to the SIP-approved version of rule 4661 and adopted rules 4662 and 4663 on December 20, 2001 and CARB submitted them to us on February 20, 2002. The SJVUAPCD previously adopted rule 4662 on December 17, 1992 and CARB submitted it to us on July 23, 1999. The SJVUAPCD again adopted rule 4662 on April 19, 2001 and CARB submitted it to us on October 30, 2001. The EPA did not act on previous two submittals of rule 4662. While we can act on only the most recently submitted version, we have reviewed materials provided with previous submittals.

Rule 4661 regulates emissions of VOCs from a variety of sources and controls emissions of VOCs by limiting the amount of organic solvents that may be released into the atmosphere. This rule applies to any source operation that uses organic solvents and is not exempted by any other district rule(s). Rule 4662 controls emissions by limiting VOCs from organic solvent degreasing operations. This rule applies to all organic solvent degreasing operations except cleaning outside a degreaser. Rule 4663 controls emissions by limiting VOCs from organic solvent cleaning and from storage and disposal of solvents and waste solvent materials. This rule applies to any organic solvent cleaning performed outside a degreaser during the production, repair, maintenance, or servicing of parts, products, tools, machinery, equipment, or in general work areas at stationary sources. It also applies to the storage and disposal of all solvents and waste solvent materials at stationary sources. The technical support documents (TSDs) have more information about these rules.

Generally, SIP rules must be enforceable ( see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for major sources in nonattainment areas ( see section 182(a)(2)(A)), and must not relax existing requirements ( see sections 110(l) and 193). The SJVUAPCD regulates an ozone nonattainment area ( see 40 CFR part 81), so Rules 4661, 4662, and 4663 must fulfill RACT.

Guidance and policy documents that we used to help evaluate specific enforceability and RACT requirements consistently include the following:

1. Issues Relating to VOC Regulation, Cut Points, Deficiencies, and Deviations: Clarifications to Appendix D of November 24, 1987 Federal Register . EPA, May 25, 1988 (the “Blue Book”).

2. Control of Volatile Organic Emissions from Solvent Metal Cleaning. EPA-450/2-77-022, November 1977.

3. Determination of Reasonably Available Control Technology and Best Available Control Technology for Organic Solvent Cleaning and Degreasing operations. CARB, July 18, 1991.

4. Guidance Document for Correcting VOC Rule Deficiencies. EPA Region IX, August 21, 2001 (the “Little Blue Book”).

We believe these rules are consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. The TSDs have more information on our evaluation.

The TSDs describe additional rule revisions that do not affect EPA's current action but are recommended for the next time the local agency modifies the rules.

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by August 21, 2002, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on September 20, 2002. This will incorporate these rules into the federally enforceable SIP.

Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

VOCs help produce ground-level ozone and smog, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control VOC emissions. Table 2 lists some of the national milestones leading to the submittal of these local agency VOC rules.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that these rules will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because these rules approve pre-existing requirements under state law and do not impose any additional enforceable duty beyond that required by state law, they do not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

These rules also do not have tribal implications because they will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. These rules also are not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because they are not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. These rules do not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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 these rules 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 20, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of these rules 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).)

SNAP implements section 612 of the Clean Air Act which requires EPA to evaluate substitutes for ODSs to reduce overall risk to human health and the environment. The intended effect of the SNAP program is to expedite movement away from ozone-depleting compounds while avoiding a shift into substitutes posing other environmental problems. On March 18, 1994, EPA promulgated the initial SNAP rule establishing the program for evaluating and regulating substitutes for ozone depleting chemicals (59 FR 13044), and has since issued decisions on the acceptability and unacceptability of a number of substitutes.

In February 1999, EPA received a submission requesting review of the following foam blowing agents as substitutes for HCFC-141b: HFC-134a, HCFC-22, HCFC-142b, HCFC-124, and an HCFC-22/142b blend. In response, EPA proposed the following two determinations: (1) listing HCFC-22 and HCFC-142b as unacceptable substitutes for HCFC-141b in all foam end-uses; and (2) listing HCFC-124 as unacceptable in all foam end-uses (65 FR 42653). EPA did not address the use of HFC-134a in the proposal because HFC-134a was already listed as an acceptable substitute for HCFC-141b (64 FR 30410). In addition, EPA proposed to list HCFC-141b, -22, and -142b as unacceptable in all foam end-uses with existing users grandfathered until 2005.

During the official comment period for the proposal, EPA received approximately 45 comments on the proposal (Docket A-2000-18). After the comment period closed, EPA acquired additional information pertaining to the availability and technical viability of alternatives, and the market size and potential economic impact of the proposal on various sub-sectors of the foam industry. This information was obtained through meetings held at the request of industry representatives, letters sent from members of Congress, letters sent directly to the Agency, and through EPA's own efforts to obtain additional information in order to fully address comments received during the comment period. On May 23, 2001, the Agency published a Notice of Data Availability (NODA) making this new information available for public review and comment (66 FR 28408). The comment period for the NODA ended on June 22, 2001.

This action is divided into six sections:

Section 612 of the Clean Air Act (CAA) requires EPA to develop a program for evaluating alternatives to ozone-depleting substances. EPA refers to this program as the Significant New Alternatives Policy (SNAP) program. The major provisions of section 612 are:

• Rulemaking —Section 612(c) requires EPA to promulgate rules making it unlawful to replace any class I (chlorofluorocarbon, halon, carbon tetrachloride, methyl chloroform, methyl bromide, and hydrobromofluorocarbon) or class II (hydrochlorofluorocarbon) substance with any substitute that the Administrator determines may present adverse effects to human health or the environment where the Administrator has identified an alternative that (1) reduces the overall risk to human health and the environment, and (2) is currently or potentially available.

• Listing of Unacceptable/Acceptable Substitutes —Section 612(c) also requires EPA to publish a list of the substitutes unacceptable for specific uses. EPA must publish a corresponding list of acceptable alternatives for specific uses.

• Petition Process —Section 612(d) grants the right to any person to petition EPA to add a substitute to or delete a substitute from the lists published in accordance with section 612(c). The Agency has 90 days to grant or deny a petition. Where the Agency grants the petition, EPA must publish the revised lists within an additional six months.

• 90-day Notification —Section 612(e) directs EPA to require any person who produces a chemical substitute for a class I substance to notify the Agency not less than 90 days before new or existing chemicals are introduced into interstate commerce for significant new uses as substitutes for a class I substance. The producer must also provide the Agency with the producer's health and safety studies on such substitutes.

• Outreach —Section 612(b)(1) states that the Administrator shall seek to maximize the use of federal research facilities and resources to assist users of class I and II substances in identifying and developing alternatives to the use of such substances in key commercial applications.

• Clearinghouse —Section 612(b)(4) requires the Agency to set up a public clearinghouse of alternative chemicals, product substitutes, and alternative manufacturing processes that are available for products and manufacturing processes which use class I and II substances.

On March 18, 1994, EPA published a rule (59 FR 13044) which described the process for administering the SNAP program and issued EPA's first acceptability lists for substitutes in the major industrial use sectors. These sectors include: refrigeration and air conditioning; foam manufacturing; solvents cleaning; fire suppression and explosion protection; sterilants; aerosols; adhesives, coatings and inks; and tobacco expansion. These sectors comprise the principal industrial sectors that historically consumed large volumes of ozone-depleting compounds.

The Agency defines a “substitute” as any chemical, product substitute, or alternative manufacturing process, whether existing or new, that could replace a class I or class II substance. Anyone who produces a substitute must provide the Agency with health and safety studies on the substitute at least 90 days before introducing it into interstate commerce for significant new use as an alternative. This requirement applies to chemical manufacturers, but may include importers, formulators, or end-users when they are responsible for introducing a substitute into commerce.

Under section 612, the Agency has considerable discretion in the risk management decisions it can make under the SNAP program. In the SNAP rule, the Agency identified four possible decision categories: acceptable; acceptable subject to use conditions; acceptable subject to narrowed use limits; and unacceptable. Fully acceptable substitutes, i.e., those with no restrictions, can be used for all applications within the relevant sector end-use. Conversely, it is illegal to replace an ODS with a substitute listed by SNAP as unacceptable.

After reviewing a substitute, the Agency may make a determination that a substitute is acceptable only if certain conditions of use are met to minimize risk to human health and the environment. Such substitutes are described as “acceptable subject to use conditions.” Use of such substitutes without meeting associated use conditions renders these substitutes unacceptable and subjects the user to enforcement for violation of section 612 of the Clean Air Act and the SNAP regulations.

Even though the Agency can restrict the use of a substitute based on the potential for adverse effects, it may be necessary to permit a narrowed range of use within a sector end-use because of the lack of alternatives for specialized applications. Users intending to adopt a substitute acceptable with narrowed use limits must ascertain that other acceptable alternatives are not technically feasible. Companies must document the results of their evaluation, and retain the results on file for the purpose of demonstrating compliance. This documentation must include descriptions of substitutes examined and rejected, processes or products in which the substitute is needed, reason for rejection of other alternatives, e.g., performance, technical or safety standards, and the anticipated date other substitutes will be available and projected time for switching to other available substitutes. The use of such substitutes in applications and end-uses which are not specified as acceptable in the narrowed use limit is unacceptable and violates section 612 of the CAA and the SNAP regulations.

EPA does not believe that notice and comment rulemaking procedures are required to list alternatives as acceptable with no restrictions. Such listings do not impose any sanction, nor do they remove any prior license to use a substitute. Consequently, EPA adds substitutes to the list of acceptable alternatives without first requesting comment on new listings (59 FR 13044). Updates to the acceptable lists are published as separate Notices of Acceptability in the Federal Register .

As described in the original March 18, 1994 rule for the SNAP program (59 FR 13044), EPA believes that notice-and-comment rulemaking is required to place any alternative on the list of prohibited substitutes, to list a substitute as acceptable only under certain use conditions or narrowed use limits, or to remove an alternative from either the list of prohibited or acceptable substitutes. In this final rule, EPA is issuing its decision on the acceptability of certain substitutes in the foams blowing sector. Today's rule finalizes and incorporates decisions that were proposed on July 11, 2000 at 65 FR 42653 (referred to hereinafter as “the proposal”). The section below presents a detailed discussion of the determinations that are made final in today's Final Rule.

A major goal of the SNAP program is to facilitate the transition away from ozone-depleting substances. In 1994, EPA listed hydrochlorofluorocarbons (HCFCs), such as HCFC-141b, -22, and -142b, as acceptable replacements for CFCs because the Agency believed that HCFCs provided a temporary bridge to alternatives that do not deplete stratospheric ozone (“ozone-friendly”). At that time, EPA believed that HCFCs were necessary transitional alternatives to CFC blowing agents in thermal insulating foam (59 FR 13083). Since then, HCFC-141b, -22, and -142b have become the most common foam blowing agents. HCFCs are slated for phaseout under the Clean Air Act and Montreal Protocol on Substances that Deplete the Ozone Layer, 1 and the Agency has identified several alternatives to HCFC blowing agents, including hydrofluorocarbons (HFCs), hydrocarbons, carbon dioxide, and other compounds as acceptable substitutes in the foam blowing sector. In some foam end-uses, these alternatives have been tested and implemented in finished products that are on the market. In others, foam manufacturers are still working to formulate, test, and implement the alternatives to HCFCs in manufacturing processes.

On July 11, 2000, EPA proposed action regarding the acceptability of certain HCFCs in the foam sector. EPA subsequently solicited additional comment in a Notice of Data Availability issued on May 23, 2001. Today, EPA is making final decisions regarding the acceptability of those substitutes. EPA's decisions are based on the technical viability of alternatives, timing and availability of alternatives, the need for products that maintain thermal efficiency, structural integrity, and safety, and the potential economic implications. Table A summarizes today's final actions by foam sector end-use.

On March 18, 1994, EPA listed HCFC-141b as an acceptable substitute for CFCs in various foam end-uses. A number of foam manufacturers switched from CFC-11 and CFC-113 to HCFC-141b. Since that time, EPA has listed several non-ozone-depleting alternatives as acceptable replacements for HCFC-141b. In the July 11, 2000 proposal, EPA proposed to change its previous decision of acceptability such that use of HCFC-141b would be unacceptable for foam manufacture (65 FR 42653). However, for existing users, such use would be grandfathered until January 2005 ( i.e., existing users could continue to use HCFC-141b as a foam blowing agent until January 2005). The Agency believed that this time period was sufficient for these end-users to transition to non-ozone-depleting alternative foam blowing agents, taking into consideration the impending production phaseout of HCFC-141b effective January 1, 2003.

EPA is deferring its decision on whether to list HCFC-141b as an unacceptable substitute for CFCs in foam blowing end uses. This decision does not in any way affect the January 1, 2003 phaseout deadline for the production and import of HCFC-141b, previously established on December 10, 1993 (58 FR 65018), to reduce U.S. HCFC consumption in accordance with section 606 of the Clean Air Act and the Montreal Protocol.

After the comment period for the July 11, 2000 proposal closed September 11, 2000, EPA acquired additional information pertaining to the availability and technical viability of alternatives and the market size and economic impact of the proposal on various industries. This information was obtained through meetings held at the request of industry representatives, letters sent through congressional representatives, letters sent directly to the Agency, and through EPA's own efforts to obtain additional information in order to fully address comments received during the comment period. The Agency published a Notice of Data Availability (NODA) on May 23, 2001 making the additional information pertaining to the foam industry available for public comment (66 FR 28408). As part of the proposed HCFC allowance allocation rulemaking, the Agency has also received comments and information pertaining to the use and availability of HCFCs and alternatives in the foam industry (66 FR 38064). The proposed HCFC allowance system is intended to control the U.S. production and consumption of class II controlled substances, the hydrochlorofluorocarbons (HCFCs) in accordance with U.S. obligations under the Montreal Protocol.

Several commenters on the proposed SNAP rule suggested that EPA should not list HCFC-141b as unacceptable for existing users because of a lack of feasible alternatives. In fact, these commenters, as well as commenters on the proposed HCFC allocation rule, requested that the Agency extend the January 1, 2003 phaseout deadline for production of HCFC-141b for use in specific applications such as spray foam. As part of the separate regulatory program governing HCFC production and allocations under sections 605 and 606 of the Clean Air Act (66 FR 38081), the Agency will address the comments pertaining to limited, continued production of HCFC-141b for use in applications where feasible alternatives are not yet fully developed and available. A final HCFC allocation rule is expected to be published by the fall of 2002. More detailed and up-to-date information on this issue can be found on EPA's Ozone Depletion World Wide Web site at http://www.epa.gov/ozone/title6/phaseout/hcfc141b.html.

Because a decision on exempted HCFC-141b production will have implications for continued use of HCFC-141b in the foam industry, we are deferring a final decision on the use of HCFC-141b. By deferring, EPA is allowing continued use of stockpiled HCFC-141b (produced prior to January 1, 2003) and use of limited amounts of HCFC-141b that may be produced after January 1, 2003 to address technical constraints of some existing HCFC-141b users.

In the July 11, 2000 proposal, EPA proposed to list HCFC-22, HCFC-142b and blends thereof as unacceptable in all foam end-uses; existing use of HCFC-22/HCFC-142b would have been grandfathered until January 1, 2005. On March 18, 1994, EPA listed these HCFCs as acceptable substitutes for CFC-11, -12, -113, and -114 in various foam end-uses. A number of foam manufacturers switched from those CFCs to HCFC-22 and HCFC-142b as transitional blowing agents. Since that time, EPA has listed several non-ozone-depleting substitutes as acceptable replacements for HCFCs. Under the proposal, companies not currently using HCFC-22 or HCFC-142b would be prohibited from switching to HCFC-22 or HCFC-142b while existing users of HCFC-22 and HCFC-142b could continue to use HCFC-22 and HCFC-142b as foam blowing agents, but only until January 1, 2005. The Agency believed that time period was sufficient time for existing users to transition from HCFC-22 and HCFC-142b to non-ozone depleting alternative foam blowing agents.

Based on comments received on the proposal and NODA, the Agency is taking the following final actions today: (1) Withdrawing its proposed decision to list HCFC-22 and HCFC-142b as unacceptable substitutes for CFCs ( i.e., existing users of these chemicals can continue use); (2) listing HCFC-22 and HCFC-142b as unacceptable substitutes for HCFC-141b in rigid polyurethane/ polyisocyanurate laminated boardstock, rigid polyurethane appliance, and rigid polyurethane spray foam applications; and (3) listing HCFC-22 and HCFC-142b as acceptable substitutes, with narrowed use limits, for HCFC-141b in commercial refrigeration, sandwich panels, and rigid polyurethane slabstock and other foams applications.

EPA is withdrawing the proposal to restrict existing use of HCFC-22 and HCFC-142b as substitutes for CFCs because the Agency believes there are technical and economic constraints in switching to ozone-friendly alternatives for these users within the next several years. Foam manufacturers who are existing users of HCFC-22 and HCFC-142b can continue to use these HCFCs but only under the conditions described here. Existing use is defined as current use of HCFC-22 and/or HCFC-142b to manufacture actual foam products that are sold into commercial markets and meet all relevant code approvals, where required, prior to the date of publication of this final rulemaking. Manufacturers who have conducted trials or limited production runs are not considered existing users. Foam manufacturers who use HCFC-141b in blends with HCFC-22 or HCFC-142b may continue to use the current percentage by weight of HCFC-22 and HCFC-142b based on the overall formulation. However, in those end-uses identified in today's action where substitution of HCFC-141b with HCFC-22 or HCFC-142b is unacceptable (rigid polyurethane/polyisocyanurate laminated boardstock, rigid polyurethane appliance, and rigid polyurethane spray foam applications), foam manufacturers may not replace HCFC-141b in current formulations with HCFC-22 or HCFC-142b. In these end-uses, HCFC-141b can only be replaced by SNAP approved alternatives. For example, if a formulation contains 8% HCFC-141b (by weight) and 2% HCFC-22 (by weight), the user cannot increase the total content of HCFC-22 in the formulation when replacing HCFC-141b with other SNAP approved alternatives. In addition to combined use of HCFC-141b and HCFC-22 in blends, EPA recognizes that a manufacturer may run separate production lines, some with HCFC-141b and some with HCFC-22, or may have multiple production facilities. Although such a manufacturer is an existing user of HCFC-22/HCFC-142b for some production lines, he may not convert the HCFC-141b lines or facilities, in whole or part, to HCFC-22 or HCFC-142b, except for those end-uses in which such substitution is deemed acceptable, subject to narrowed use limits ( e.g., commercial refrigeration, sandwich panels, and rigid polyurethane slabstock). In those end-uses where substitution of HCFC-141b with HCFC-22 or HCFC-142b is deemed unacceptable, SNAP approved alternatives for HCFC-141b must be used in those lines or facilities.

In today's action, EPA is also addressing use of HCFC-22 and HCFC-142b as replacements for HCFC-141b. EPA is finalizing its proposed determination that HCFC-22 and HCFC-142b are unacceptable as replacements for HCFC-141b in polyurethane boardstock and spray foam, and appliance end-uses; as of the effective date of this rule, these HCFCs cannot be used as substitute foam blowing agents for HCFC-141b. EPA believes that polyurethane boardstock, spray foam, and appliance manufacturers have identified and, in many cases, implemented viable non-ozone-depleting alternatives to HCFC-141b.

For commercial refrigeration and sandwich panel applications, and the polyurethane slabstock and other foams end-use, EPA is listing HCFC-22 and HCFC-142b, with narrowed use limits, as acceptable replacements for HCFC-141b. These end-uses are comprised of a wide range of diverse applications with unique technical considerations and fragmented HCFC use. EPA is strongly opposed to listing HCFCs as acceptable where non-ozone-depleting alternatives are available. However, EPA believes that ozone-friendly alternatives to HCFC-141b have not yet been fully developed and implemented across the spectrum of applications within these end-uses. In these situations, EPA believes switching to HCFC-22 and/or HCFC-142b as a bridge to non-ozone-depleting alternatives presents a lower risk than continued use of HCFC-141b.

In prior SNAP program regulations, substitutes have been permitted under a narrowed range of use within a sector end-use because of the lack of alternatives for specialized applications. The narrowed use limit means that users intending to adopt HCFC-22 or HCFC-142b, and blends thereof in the commercial refrigeration and sandwich panels, and the “slabstock and other foams” end-uses, must ascertain that other acceptable alternatives are not technically feasible. These narrowed use requirements are summarized in a table at the end of this document and will be incorporated into Appendix J, Subpart G of the Code of Federal Regulations (CFR) at 40 CFR part 82. Under these provisions, companies must document the results of their evaluation, and retain the results on file for the purpose of demonstrating compliance. This documentation must include descriptions of substitutes examined and rejected, processes or products in which the substitute is needed, reason for rejection of other alternatives, e.g., performance, technical or safety standards, and the anticipated date other substitutes will be available and projected time for switching to other available substitutes. The use of HCFC-22, HCFC-142b, and blends thereof in applications which are not specified as acceptable in the narrowed use limit is considered unacceptable and violates section 612 of the CAA and the SNAP regulations. In addition, foam manufacturers should be aware that EPA is continuing to review the commercial refrigeration, and sandwich panels and slabstock and other foams end-uses to determine the progress of non-ozone-depleting alternatives. As non-ozone-depleting alternatives become more widely available, the Agency will reevaluate the acceptability of HCFCs in these end-uses. Therefore, foam manufacturers within these applications that are using HCFCs should begin using non-ozone-depleting alternatives as soon as they are available in anticipation of future EPA action restricting the use of HCFCs.

In the July 11, 2000 proposal, EPA proposed to list HCFC-124 as unacceptable in all foam end-uses. Because HCFC-124 has never been listed as an acceptable foam blowing substitute for CFCs, EPA believed there were no current users of the chemical and, therefore, did not address existing users separately.

Today's final rule lists HCFC-124 as unacceptable in all foam end-uses. Although HCFC-124 has a lower ODP than HCFC-141b, it was never submitted as a replacement for CFCs and therefore has never been commercialized for use as a blowing agent in the U.S. EPA is not aware of any uses of HCFC-124 as a foam blowing agent anywhere in the world. Comments on the proposal indicate that HCFC-124 has been tested on a limited scale as a foam blowing agent for rigid polyurethane foam only in the appliance industry. EPA believes that introduction of an HCFC into the foams industry to replace an existing HCFC is not necessary or appropriate in light of the ability of the appliance industry to convert directly from HCFC-141b to technically viable zero-ODP foam blowing alternatives.

Because EPA is not taking final action today on its proposed decision to list HCFC-141b as unacceptable, the Agency is not responding to comments at this time. However, EPA would like to note the following issues raised in comments: (1) Import of pre-blended HCFC-141b polyurethane systems; and (2) use of stockpiled HCFC-141b. Commenters' concerns are summarized below along with EPA's preliminary views on these issues and information on the Agency's regulatory authority to address them.

Some commenters expressed concern that there was a potential for HCFC-141b, produced in the U.S. after the production ban for domestic use but subsequently exported from the U.S., to be re-imported in pre-blended polyurethane systems and used to produce foam in the U.S. Polyurethane foam systems generally consist of two components. One contains polyols, surfactants, blowing agents and other chemicals, the other contains isocyanate. These components are mixed on site to produce foam. Information specifically addressing or referencing these issues can be found in Air Docket A-2000-18 reference numbers IV-E-7, IV-D-80, IV-D-93, and IV-D-96. Currently there are no regulations prohibiting insulating foam products containing HCFC-141b from being sold in the U.S. after January 1, 2003. 2

These comments are outside the scope of the present rulemaking. However, EPA will continue to monitor the situation closely and collect information in order to decide if any action is necessary and if so, the appropriate timing of such action. Available information does not now indicate the extent to which import of HCFC-141b systems may occur. However, if this activity becomes widespread and compromises or undermines the intent of the U.S. HCFC-141b phaseout, disadvantaging companies that have made good faith investments in developing and implementing alternative technologies, EPA could consider establishing a SNAP use restriction under section 612 of the Clean Air Act or other appropriate actions; expanding the definition of “controlled product” or “bulk substance” under the U.S. phaseout regulations at 40 CFR part 82 to specifically address polyurethane pre-polymers; and/or establishing a labeling requirement under section 611 of the Clean Air Act for foams blown with HCFC-141b and any products containing such foam. These labels would inform the public that these products contain HCFC-141b, an ozone-depleting chemical that destroys stratospheric ozone. Other possible actions that could occur if the import of pre-blended HCFC-141b systems is seen to be compromising the U.S. phaseout of HCFC-141b include: (1) Section 610 of the Clean Air Act could be amended to remove the exemption for foam insulation products which would allow EPA to restrict the sale and distribution of products containing HCFC-141b; and (2) international discussions under the Montreal Protocol might result in a re-classification of polyurethane pre-polymers to include all pre-blended polyurethane systems as controlled bulk substances subject to the import restrictions or other such changes that could prevent import of pre-blended polyurethane systems.

Another issue identified in the NODA was the potential for users to stockpile large enough quantities to delay the transition from HCFC-141b to non-ozone-depleting chemicals. Comments in the docket show that there are conflicting views on the amount of HCFC-141b that could be stockpiled for use after January 1, 2003. Some comments stated that the amount of HCFC-141b that could be stockpiled was limited by production and storage capacity and those limitations would prevent use of HCFC-141b after 2005 regardless of EPA's proposed unacceptability listing. Opposing this position, a commenter estimated that enough HCFC-141b could be collected, stockpiled, and sold to last more than 5 years past the production phaseout date.

The Agency does not have evidence that use of stockpiled HCFC-141b will significantly impede the transition away from HCFC-141b after the production phaseout. As the phaseout nears and access to HCFC-141b becomes more limited, the Agency believes that greater numbers of HCFC-141b users who have not yet transitioned to alternatives will do so. EPA encourages foam manufacturers to follow the lead of the polyisocyanurate boardstock industry, certain appliance manufacturers, and other foam manufacturers that are undertaking commendable efforts to transition to ozone-friendly alternatives. EPA will continue to monitor the situation closely and collect information in order to decide if any action is necessary and if so, the appropriate timing. The Agency may address this issue in more detail at the time we address the question of limited, continued production of HCFC-141b as part of the HCFC allocation rulemaking.

In today's action, EPA is withdrawing its proposal to list HCFC-22 and HCFC-142b as unacceptable substitutes for CFCs. Comments on the July 11, 2000 proposal and May 23, 2001 NODA regarding existing use of HCFC-22 and HCFC-142b fall under the following four summarized statements which are addressed in detail below:

1. Alternatives to HCFC-22 and HCFC-142b have not been fully developed for U.S. foam markets and, therefore, they are not technically viable for existing users of these chemicals.

2. There would be a significant impact on small businesses if EPA finalized its proposed action to list HCFC-22 and HCFC-142b as unacceptable for existing users.

3. EPA should not de-list chemicals without new evidence suggesting that these chemicals are more harmful than previously known or that eliminating their use would benefit the environment.

4. EPA should not use the SNAP program to accelerate the phaseout of HCFC-22 and HCFC-142b.

EPA's proposal was based on published and other publicly available information indicating that technically viable alternatives to HCFC-22 and HCFC-142b are available in all foam end-uses. Although some commenters agreed with EPA and supported the proposed decision, many commenters argued that EPA had insufficient data and that technically viable alternatives are not available. Commenters who disagreed with EPA recommended that EPA withdraw portions of the proposal that would affect existing users of HCFC-22 and HCFC-142b or extend the grandfathering period, for example, to 2008 instead of 2005. Based on these comments, EPA decided to collect more information in those foam sectors where publicly available information and published literature are limited. This additional information was made available for public review in a May 23, 2001 Notice of Data Availability (NODA) (66 FR 28408). The NODA included a technical analysis of comments received from the extruded polystyrene industry and a review of challenges facing the polyurethane spray foam industry and other systems house based applications. Both of these reports can be found in Docket A-2000-18, reference number IV-D-77 and IV-D-78, respectively. 3

The polystyrene industry represents the largest foam end-use of HCFC-142b, with some minor HCFC-22 use. Key concerns raised during the comment periods relate to the technical feasibility of alternatives coupled with the cost and timing of the transition to non-ozone depleting chemicals. Polystyrene manufacturers commented that while zero-ODP alternatives have been implemented in Europe, conversion to non-HCFC alternatives in the U.S. would require more than 5 years of research and development due to differences in building codes and product requirements. The major challenges facing the polystyrene industry relate to balancing density and thickness ( i.e., insulation value) of the foam and compliance with safety requirements. For example, current building codes limit the use of polystyrene to either thin, high density foam or thicker, low density foam. Any changes that result in higher density or lower R-value (thicker) foam would result in products that cannot meet current building codes. Existing building codes are not expected to be revised in the near future and EPA agrees with comments indicating that it could take longer than 4 years to finalize the development of new codes to account for increased “fire loads” ( i.e., denser or thicker foam) that the polystyrene industry indicates would result from switching to non-HCFC alternatives.

The technical analysis of comments received from the extruded polystyrene industry, Air Docket A-2000-18, IV-D-77, shows that the polystyrene industry needs to maximize its efforts between now and 2010 in order to transition to alternatives in time for the HCFC-22/HCFC-142b production phaseout. EPA believes that research and development to modify existing blowing agent options and/or building codes in the U.S., and to also conduct trials and plant modifications, could take up to 8 years. EPA urges polystyrene manufacturers to examine research and development applied in Europe to further develop non-HCFC blowing agent options in order to achieve foam densities and insulation values that will meet building codes and be marketable in the U.S. at the earliest possible date. The Agency will continue to monitor the development of alternatives in the polystyrene sector and work with this industry to establish a time-frame for transitioning away from HCFCs.

As indicated in footnote 3 above, end-uses other than polystyrene account for a small percentage of the total existing HCFC-22 and HCFC-142b use in the foam industry. HCFC-22 and HCFC-142b are used in polyurethane appliance, commercial refrigeration, sandwich panels, and slabstock and other foam end-uses. Many comments on the July 11, 2000 proposal stated that EPA had not identified all entities potentially affected by the proposed HCFC-22/HCFC-142b restrictions or failed to assess the impact of the proposal on these users, many of which are small businesses. In response to comments, EPA expanded its effort to identify users of HCFC-22 and HCFC-142b and analyze the current status of alternatives in these applications. EPA reviewed comments and hired a foam industry expert to collect information from spray polyurethane foam representatives and systems house representatives on the viability of alternatives in each application that could be identified. Due to the fragmentation of the industry, it was difficult to identify specific applications, blowing agents used, and the viability of alternatives for each end-user.

In developing the proposed rule, based on information available to the Agency at the time, we concluded that non-ozone-depleting chemicals which reduce the risk to human health and the environment were available as replacements, and that existing users of HCFC-22 and HCFC-142b could switch to these alternatives. Based on comments and EPA's data collection efforts, the Agency learned that HCFC-22/HCFC-142b alternatives have been identified and developed by some polyurethane foam manufacturers. However, due to unique technical considerations for many HCFC-22/HCFC-142b users in the polyurethane industry, EPA believes that technically viable alternatives cannot be implemented across the spectrum of applications at this time. Consequently, EPA believes that for many polyurethane manufacturers that have been relying on HCFC-22 and HCFC-142b, switching to alternatives by 2005 would be difficult and prohibitively costly.

Thus, because of the infeasibility in the near term of alternatives for existing users in the polystyrene industry and the availability and technical viability of alternatives in other end-uses, EPA is withdrawing the proposed restriction on HCFC-22 and HCFC-142b for existing users. However, EPA believes that there are certain polyurethane applications, particularly non-insulating applications, that may currently have technically viable alternatives that are economically feasible. EPA is conducting a complete review of the spray, commercial refrigeration, and sandwich panels and slabstock and other foams end-uses to determine the current status of specific applications and products within these end-uses and the progress being made to implement non-ozone-depleting alternatives. As non-ozone-depleting alternatives become more widely available and implemented, the Agency plans to reevaluate the acceptability of HCFCs in these end-uses. In order to anticipate future EPA action restricting the use of HCFCs, EPA urges foam manufacturers to implement non-ozone-depleting alternatives as soon as they are available and economically feasible.

At the time of the proposal, EPA did not believe that a significant number of small entities would be affected by the proposed action. However, EPA acknowledged that this decision would reverse a prior acceptability determination and current users could be disadvantaged if forced to quickly switch to other substitutes. For that reason, the Agency proposed to grandfather existing users of HCFC-22 and HCFC-142b until January 1, 2005. Through comments to the proposal, it came to the Agency's attention that we were not aware of some users of these HCFCs. Commenters argued that the flexibility EPA proposed to allow individual users to demonstrate need for continued use of HCFC-22 and HCFC-142b beyond 2005 was not appropriate because a case-by-case review to provide extensions to the grandfathering period would create a new SNAP process that would place an undue burden on many small businesses. In reaction to these comments, EPA expanded its effort to identify existing users of HCFC-22 and HCFC-142b that would be affected if EPA made final a decision to make HCFC-22 and HCFC-142b unacceptable for existing users. As discussed above, on May 23, 2001, EPA published a NODA that identified many of the existing HCFC-22/HCFC-142b users in the foam industry as small businesses (66 FR 28408). Because EPA is withdrawing the proposed action, there will be no effect on small businesses that are existing users of HCFC-22 and/or HCFC-142b. If the Agency takes future action to restrict the use of HCFCs based on its review of commercial refrigeration, and sandwich panels and slabstock and other foams end-uses, small business impacts will be fully considered prior to an EPA proposal.

Commenters argued that the environmental benefit of the proposal had not been quantified and that an analysis would have shown minimal benefit. Specifically, these commenters claimed that a decision to list HCFC-22 and HCFC-142b as unacceptable would not significantly reduce damage to the ozone layer and that EPA had not shown how the proposal would reduce overall risks to human health and the environment. One commenter stated that “any phaseout of HCFCs in the U.S. foam-blowing sector would have a de minimis impact on the recovery of the stratospheric ozone layer.”

Under the SNAP program, EPA does not rank various risk factors ( e.g., toxicity, flammability, ozone depletion potential) for each alternative being considered. Instead, EPA considers all relevant health and environmental information in a comparative framework. Today's decision is to list HCFC-22 and HCFC-142b as unacceptable substitutes for HCFC-141b in certain applications because of the availability of non-ozone depleting alternatives. Because of the risks they pose to the stratospheric ozone layer, HCFC-22 and HCFC-142b are being phased out of production under the provisions of the Montreal Protocol and the Clean Air Act. Under SNAP, EPA's mandate is to determine that it is “unlawful” to replace an ODS with a substitute where other alternatives are available and would reduce the overall risk to human health and the environment. EPA's decision to list HCFC-22 and HCFC-142b as unacceptable in specific end-uses is based on the conclusion that other non-ODS substitutes are available and, considering all risk factors, create less overall risk to human health and the environment.

Because of technical constraints faced by existing users of HCFC-22 and HCFC-142b, EPA is withdrawing the proposal affecting existing users. However, EPA maintains that use of these chemicals continues to destroy the ozone layer (estimates gathered by EPA and provided in the NODA show that 35 million pounds of HCFC-142b and HCFC-22 are used annually) and that there will be an environmental benefit to transitioning from ODSs as soon as technically viable, energy efficient alternatives are fully developed and available. EPA encourages companies to continue efforts to develop and implement these alternatives.

Many commenters viewed EPA's proposed listing decision for HCFC-22 and HCFC-142b as an attempt to accelerate the phaseout of these HCFCs. Many commenters argued that prohibiting use of HCFCs under SNAP would amount to an acceleration of the established January 1, 2010 production phase-out of HCFC-22 and HCFC-142b established under section 605 of the Clean Air Act (CAA), and that such action is not authorized under the SNAP program (section 612).

EPA recognizes that some foam manufacturers viewed the 2010 production phaseout of HCFC-22 and HCFC-142b as equivalent to an end-of-use date because after that time supplies of these chemicals will significantly diminish. However, the 2010 deadline only relates to consumption of HCFCs as defined under section 601 of the CAA (consumption = production + import−exports). SNAP determinations under section 612 of the CAA do not affect consumption, defined under section 605 of the CAA. If finalized, EPA's determination would have only restricted use of HCFC-22 and HCFC-142b in the foam sector. Nevertheless, this issue is moot because under today's action, existing users of HCFC-22 and HCFC-142b can continue using these chemicals beyond January 1, 2005.

EPA also received comments that SNAP should not be used in order to reduce consumption of ozone depleting chemicals. Use restrictions under SNAP may have the effect of reducing the production and import of ozone-depleting substances. However, the SNAP program does not directly regulate or constrain HCFC consumption. Compliance with HCFC consumption requirements for the U.S., specified in the Montreal Protocol and Clean Air Act, are addressed in separate regulatory actions by the Agency. In the proposal, EPA was following its mandate to review ODS alternatives and make determinations on their acceptability in order to ensure that substitutes for ODSs that are determined acceptable present a lower risk to human health and the environment. EPA's basis for the proposal was that the Agency believed technically and economically viable non-ozone depleting alternatives were available. Because the goal of the SNAP program is to facilitate an expeditious movement to these alternatives, EPA believed its proposed action was appropriate at the time. However, as provided above, EPA is withdrawing its proposed decision because EPA now believes that technically feasible alternatives are not widely available for polystyrene manufacturers. Additional information will be collected on the viability and timing of non-ozone-depleting alternatives for polyurethane manufacturers currently using HCFC-22 and/or HCFC-142b.

A major objective of the SNAP program is to facilitate the transition from ozone-depleting chemicals by promoting the use of substitutes which present a lower risk to human health and the environment (40 CFR 82.170(a)). Today's rule lists HCFC-22 and HCFC-142b as unacceptable replacements for HCFC-141b in rigid polyurethane and polyisocyanurate boardstock, and polyurethane appliance and spray foam applications. EPA has concluded based on the available information that technically viable, non-ozone depleting (zero-ODP) alternatives are currently or potentially available for HCFC-141b for these end-uses. The Agency believes that the use of HCFC-22 and HCFC-142b in applications where non-ozone depleting chemicals are available is unnecessary and presents greater risk to human health and the environment by contributing to the continued depletion of the ozone layer.

In the boardstock and appliance foam sectors, many companies have already switched to non-ozone-depleting alternatives or plan to do so in the near future. In the spray foam sector, alternatives other than HCFC-22 or HCFC-142b have been identified as eventual replacements for HCFC-141b. At this point, however, the spray foam industry believes that additional time is needed to test and implement any alternatives to HCFC-141b. The Agency is currently reviewing a request that limited quantities of HCFC-141b be made available for spray foam applications beyond the January 1, 2003 phaseout deadline. EPA intends to issue a proposed determination pertaining to this request later this year as part of the HCFC allocation rulemaking.

Today's rule lists HCFC-22 and HCFC-142b as acceptable replacements, under narrowed use limits, for HCFC-141b in commercial refrigeration, sandwich panels, and slabstock and other foams applications. Users intending to adopt HCFC-22 or HCFC-142b, and blends thererof in the commercial refrigeration and sandwich panels, and the “slabstock and other foams” end-uses, must ascertain and document that other acceptable alternatives are not technically feasible. EPA believes that at this time, technically viable, non-ozone depleting (zero-ODP) alternatives to HCFC-141b are not fully developed for all applications within these end-uses. With the production phaseout of HCFC-141b approaching, several comments indicated that many companies are aggressively testing non-ozone-depleting alternatives and plan to implement them in the near future. However, these end-uses are comprised of extremely diverse products and non-ozone-depleting alternatives may not be fully developed in every unique application within these end-uses. Additionally, these end-uses comprise thousands of small businesses and EPA believes that, in this situation, it is appropriate to allow the narrowed use of HCFC-22 and/or HCFC-142b where necessary. Although EPA encourages continued efforts to implement non-ozone-depleting alternatives, the Agency feels that allowing narrowed use of HCFC-22 and/or HCFC-142b will facilitate the impending HCFC-141b transition by providing flexibility to small businesses who have not yet successfully identified suitable alternatives.

Comments on the July 11, 2000 proposal and May 23, 2001 NODA regarding new use of HCFC-22 and HCFC-142b as replacements for HCFC-141b indicate opposing views on the following four major issues which are addressed in detail below:

EPA's proposal was based on our understanding that technically feasible alternatives are available in all foam sectors. However, some comments suggested that feasible alternatives were not available for all end-uses and that EPA should have proposed acceptability determinations by end-use rather than across the entire foam sector. EPA's SNAP program has defined ten major end-uses in the foam sector. Of these ten end-uses, manufacturers in the following four use HCFC-141b: 4

• Rigid Polyurethane and Polyisocyanurate Laminated Boardstock

• Rigid Polyurethane Appliance

• Rigid Polyurethane Spray, Commercial Refrigeration, and Sandwich Panels

• Rigid Polyurethane Slabstock and Other Foams

Based on data collected by the Agency (Air Docket A-2000-18, IV-D-79), rigid polyurethane/polyisocyanurate laminated boardstock makes up 60% of the total foam manufacturing use of HCFC-141b in the U.S., the rigid polyurethane appliance end-use and spray foam application each use approximately 18% of the total HCFC-141b, and the remaining 4-5% of HCFC-141b use is combined in rigid polyurethane commercial refrigeration, sandwich panels, slabstock and other foam applications. Below is a discussion, by end-use, on the technical feasibility of non-ODS alternatives to HCFC-141b (Table B lists the SNAP approved alternatives).

COGEMA Mining, Inc. is the only regulated entity affected by today's action. COGEMA will derive some economic benefit as a result of this approval because the accelerated restoration will reduce the volume of waste being disposed and close the site more quickly. There is no other impact on regulated entities.

The Safe Drinking Water Act (SDWA) established the Underground Injection Control (UIC) Program, which protects underground sources of drinking water  1 (USDWs) from potential contamination from injection well practices. The UIC program regulations also provide for exempting aquifers from the definition of USDWs stated in 40 CFR 144.3. The UIC regulations, specifically 40 CFR 144.7 and 146.4, define and provide criteria for exempting aquifers.

On September 25, 2000, the EPA Regional Office in Denver, Colorado (Region 8) received a request from the Wyoming Department of Environmental Quality (WDEQ), dated September 9, 2000, submitted on behalf of COGEMA Mining, Inc. (COGEMA), for EPA to grant an aquifer exemption for the Lance Formation. This exemption surrounds two Class I  2 Non-Hazardous deep injection wells in Johnson County, WY. The exemption area includes two cylindrical volumes with centers in the wells COGEMA DW No. 2 and COGEMA DW No. 3 respectively, and a radius of 1320 feet. These volumes were determined to be required to protect adjacent portions of the USDW from contamination from the injection activity. Traditional algorithms were used to determine the minimum distance from the wells that would be affected by the injection of the restoration waste. Both wells are located in the Christensen Ranch, in Johnson County WY. The COGEMA DW No.2 is located at approximately 2,290 feet from the North line and 1130 feet from the East line SW1/4 SE1/4 NE1/4 of Section 7, Township 44 North, Range 76 West. The COGEMA DW No. 3 is located approximately 3300 feet from the North line and 1340 feet from the West line center of SW1/4 of Section 5, Township 44 North, Range 76 West. The upper boundary of the exemption is at 3800 feet below ground surface and the lower boundary is at 6500 feet below ground surface.

EPA has reviewed this aquifer exemption request and approves the request to exempt the designated portions of the Lance Formation from classification as a USDW. The technical review done by EPA included the verification of the volume of the Lance formation that would be affected by the waste. Part of this verification included determination that all contaminants injected in the wells would be precipitated out of solution, neutralized, diluted or adsorbed by the formation matrix within the volume of the exemption. The January 30, 2001 Federal Register document (66 FR 8234, January 30, 2001) contains a detailed discussion of the justification of this aquifer exemption approval. Today's approval exempts two cylindrical volumes with centers in the wells COGEMA DW No. 2 and COGEMA DW No. 3 respectively, and a radius of 1320 feet (approximately one square mile of the Lance Formation, at depths between approximately 3,800 to 6,500 feet below the surface). On March 26, 1999, EPA approved a similar exemption of an nearby portion of the Lance Formation for two other COGEMA Class I wells located within 2 miles of the Class I wells involved in today's final rule. EPA published a Request for Public Comment on a Substantial Modification to the Wyoming 1422 Underground Injection Control Program in the Federal Register on August 27, 1998 (63 FR 45810). EPA received no public comment and subsequently published approval of the aquifer exemption in the Federal Register on March 26, 1999 (64 FR 14799).

The procedures to follow for approval or disapproval of State program revisions in the UIC program are codified in 40 CFR 145.32 and described in UIC Guidance #34, Guidance for Review and Approval of State UIC Programs and Revisions to Approved State Programs. EPA UIC Guidance #34 also identifies criteria that EPA generally uses to determine whether or not a State program revision is substantial. The Lance Formation ground water contains less than 3,000 milligrams per liter total dissolved solids (TDS), and the aquifer exemption is associated with a Class I injection well permit. For these two reasons this aquifer exemption is a substantial revision of the Wyoming UIC program as approved under section 1422 of the Safe Drinking Water Act.

WDEQ determined that the Lance Formation in the exemption area is located at such a depth below the surface so as to make its use economically impractical as a possible source of drinking water. Previously, WDEQ's request for public participation in issuing the well permits focused on the poor quality of the water in the Lance formation to justify the exemption. Subsequent analysis of the water quality and geological data by EPA determined that this criterion was not adequate and was replaced with the * * * (2) It is situated at a depth or location which makes recovery of water for drinking water purposes economically or technologically impractical; * * * § 146.4(b)(2)). The depth of the Lance Formation in the exemption area is between approximately 3,800 to 6,500 feet below ground surface, based on its depth at the nearer of the two other COGEMA Class I Non-Hazardous deep injection wells. WDEQ issued a public notice in local newspapers, the Casper Star Tribune and the Johnson County Buffalo Bulletin on October 2, 2000 inviting public comment on its intent to issue a permit for the two new wells. The public comment period began October 2, 2000, and ended October 31, 2000, but WDEQ did not receive any public comments or requests for a public hearing.

On January 30, 2001, EPA published a notice in the Federal Register (66 FR 8234, January 30, 2001) requesting public comment on the aquifer exemption request by COGEMA, based on both the contamination (§ 146.4(b)(3)) and the location (§ 146.4(b)(2)) criteria. 3 EPA did not receive comments or requests for a public hearing.

Until August 2000, COGEMA operated the Christensen Ranch in-situ leaching uranium mine within the Wasatch Formation in Johnson and, Campbell Counties WY. The mining operation included five well fields operating under a UIC Class III  4 permit. The mining process contaminated ground water within the mined portions of the Wasatch Formation. To fulfill the mine permit closing requirements, COGEMA is engaging in large-scale ground water restoration throughout the entire mined portion of the Wasatch Formation.

COGEMA must conduct ground water restoration upon completion of mining activities to return the ground water affected by mining to baseline condition or to a condition consistent with its pre-mining or potential use. Once the ground water within the Wasatch is restored, the concentrations of contaminants in the ground water will be below drinking water standards. Complete restoration of the ground water quality within the mined-out areas of the Wasatch Formation will require a wastewater disposal capacity of 300 to 500 gallons per minute (gpm) over the next 4 to 6 years.

While mining was active, COGEMA used two Class I Non-Hazardous deep injection wells permitted in 1997 to inject mining, mineral process and ground water restoration waste fluids into the Lance Formation. Under the previously planned mining closure and aquifer restoration process, the disposal capacity of the two previously permitted Class I wells (and the volume of the previously granted aquifer exemption) would have been adequate for the long-term (18 years) restoration waste stream as COGEMA sequentially mined, then closed each Class III well field. However, now that COGEMA is restoring all areas of the mine site simultaneously, large-scale, accelerated restoration will produce a larger volume of waste fluids more quickly than the existing two Class I wells can inject it into the Lance Formation at the permitted injection rate.

Limiting the rate of the restoration process results in the generation of a bleed stream (discussed below) which constitutes an additional volume of waste fluids. Much of the mined portion of the Wasatch is on “standby” until either (a) the two new wells increase the disposal capacity, or (b) COGEMA sequentially restores each well field and completes the restoration process in other mined-out areas. In the standby areas, it is necessary to keep underground water flow directed into the mined portions until COGEMA can begin the restoration process there. Ground water flowing into the unrestored mined areas prevents contaminated water migration from the mined part of the aquifer outward into the surrounding high water quality areas of the Wasatch Formation. In order to allow underground water to flow into the standby areas, COGEMA must continuously pump ground water out of them. The term “bleed stream” refers to the ground water that COGEMA extracts for this purpose. 5

The injected wastewater consists of the bleed stream described above and fluids from the restoration of the Wasatch Formation. The injectate also includes yellow cake wash water from washing any residual uranium recovered during the restoration process, laboratory wastewater, reverse osmosis brine, and ground water sweep solutions. 6 The bleed streams are non-hazardous, beneficiation  7 wastes exempt from regulation as hazardous waste under the Resource Conservation and Recovery Act as stipulated by the Bevill Amendment (40 CFR 261.4(b)(7).

Bringing the two new Class I wells on line to handle an increased volume of restoration waste water will increase the rate of the restoration process and will allow restoration to begin more immediately in the standby areas. These two new injection wells will decrease the time these mined areas will have to remain in standby mode, producing a continuous bleed stream. Use of the two new Class I injection wells will prevent the production of an additional 31 million gallons of bleed stream requiring disposal. 8 The increased rate of restoration will allow COGEMA to complete the restoration of the Wasatch Formation two years sooner than without the two additional wells.

EPA approves the exemption of the designated portions of the Lance Formation because the formation meets the following criteria for exempted aquifers:

The California tiger salamander was first described as a full species, Ambystoma californiense, by Gray in 1853, based on specimens that had been collected in Monterey, California (Grinnell and Camp 1917). Storer (1925) and Bishop (1943) also considered the California tiger salamander to be a species. Dunn (1940), Gehlbach (1967), and Frost (1985) stated the California tiger salamander was a subspecies of the more widespread tiger salamander ( Ambystoma tigrinum ). However, based on recent studies of the genetics, geographic distribution, and ecological differences among the members of the A. tigrinum complex, the California tiger salamander is now considered to be a distinct species (Shaffer and Stanley 1991; Shaffer et al. 1993; Jones 1993; Shaffer and McKnight 1996; Irschick and Shaffer 1997; Petranka 1998).

The California tiger salamander is a large, stocky, terrestrial salamander with small eyes and a broad, rounded snout. Adults may reach a total length of 208 millimeters (mm) (8.2 inches (in)), with males generally averaging about 203 mm (8 in) in total length, and females averaging about 173 mm (6.8 in) in total length. For both sexes, the average snout-vent length is approximately 91 mm (3.6 in). The small eyes have black irises and protrude from the head. Coloration consists of white or pale yellow spots or bars on a black background on the back and sides. The belly varies from almost uniform white or pale yellow to a variegated pattern of white or pale yellow and black. Males can be distinguished from females, especially during the breeding season, by their swollen cloacae (a common chamber into which the intestinal, urinary, and reproductive canals discharge), more developed tail fins, and larger overall size (Stebbins 1962; Loredo and Van Vuren 1996).

California tiger salamanders are restricted to California and their range does not naturally overlap with any other species of tiger salamander (Stebbins 1985; Petranka 1998). Based on genetic analysis, there are seven populations of California tiger salamanders, which are found on the Santa Rosa Plain in Sonoma County, the Sacramento Valley area (Yolo, Solano, Colusa, Contra Costa, Alameda, and Sacramento Counties), Stanislaus County, the east Central Valley (Madera, Fresno, and north Tulare Counties), the Diablo Range (western Merced and San Benito Counties), the Inner Coast Range (Monterey and San Luis Obispo Counties), and Santa Barbara County (Shaffer et al. 1993). The California tiger salamander on the Santa Rosa Plain in Sonoma County inhabits low elevation (below 60 meters (m) (200 feet (ft)) vernal pools and seasonal ponds, associated grassland, and oak savannah plant communities. The historic range of the species also may have included the Petaluma River watershed, as there is one historic record of a specimen from the vicinity of Petaluma from the mid-1800s (Borland 1856, as cited in Storer 1925).

California tiger salamanders on the Santa Rosa Plain in Sonoma County are geographically separated from other California tiger salamander populations. The closest California tiger salamander populations to Sonoma County are located in Contra Costa, Yolo, and Solano Counties, which are separated from the Sonoma County population by the Coast Range, Napa River, and the Carquinez Straits, a distance of about 72 kilometers (km) (45 miles (mi)).

The known breeding sites of the California tiger salamander in Sonoma County are restricted to Huichica-Wright-Zamora and Clear Lake-Reyes soils series/associations as defined by the U.S. Department of Agriculture (USDA 1972, 1990). The poorly drained soils in the Huichica-Wright-Zamora association (yellow outlined in red on Soil Map) are considered prime soils for containing wetlands, and more specifically, prime soils for habitat containing California tiger salamander (P. Northen Sonoma State University pers. comm.). The Huichica-Wright-Zamora association is restricted to the Santa Rosa Plain and the vicinity of the town of Sonoma (USDA 1972, 1990). The poorly drained soils in the Clear Lake-Reyes association are considered suitable to marginal soils for containing wetlands or habitat for California tiger salamander (Northen pers. comm.). The Clear Lake-Reyes association is found from the Cotati region south and east of Petaluma to the tidelands of northern San Francisco Bay where the salt marsh habitat is unsuitable for the California tiger salamander. There are also scattered areas of the Clear Lake-Reyes association found south and southwest of the town of Sonoma (USDA 1972, 1990). There are no known records of the California tiger salamander from the area around the town of Sonoma (D. McGriff California Department of Fish and Game pers. comm.) and there is now extensive urban and agricultural development in this portion of the County. The remainder of areas in Sonoma County outside of the two soil series/associations discussed above contain soils that are well drained, rocky, or otherwise unsuitable for habitat for the California tiger salamander.

Subadult and adult California tiger salamanders spend the dry summer and fall months of the year estivating (a state of dormancy or inactivity in response to hot, dry weather) in the burrows of small mammals, such as California ground squirrels ( Spermophilus beecheyi ) and Botta's pocket gopher ( Thomomys bottae ) (Loredo and Van Vuren 1996; Petranka 1998; Trenham 1998a). During estivation, California tiger salamanders eat very little (Shaffer et al. 1993). Once fall or winter rains begin, they emerge from these retreats on nights of high relative humidity and during rains to feed and migrate to the breeding ponds (Stebbins 1985, 1989; Shaffer et al. 1993). The salamanders breeding in, and living around, a seasonal pool or pools, and associated uplands where estivation can occur, constitute a breeding site. A breeding site is defined as a location where the animals are able to successfully breed in years of “normal” rainfall and complete their estivation. Normal rainfall in Santa Rosa is 76 centimeters (cm) (30 in) per year (National Weather Service 2002).

Adult California tiger salamanders may migrate up to 2 km (1.2 mi) from their estivation sites to the breeding ponds (Sam Sweet, University of California, Santa Barbara, in litt. , 1998). The distance between these areas depends on local topography and vegetation, and the distribution of ground squirrel or other rodent burrows (Stebbins 1989; Lawrence Hunt, consultant, in litt. ,1998). Males migrate before females (Twitty 1941; Shaffer et al. 1993; Loredo and Van Vuren 1996; Trenham 1998b). Males usually remain in the ponds for an average of about 6 to 8 weeks, while females stay for approximately 1 to 2 weeks. In dry years, both sexes may stay for shorter periods (Loredo and Van Vuren 1996; Trenham 1998b). Although most marked salamanders have been recaptured at the pond where they were initially captured, in one study approximately 20 percent were recaptured at different ponds (Trenham 1998b). The rate of natural movement of salamanders among breeding sites depends on the distance between the ponds or complexes of ponds and on the intervening habitat ( e.g. , salamanders may move more quickly through sparsely covered and more open grassland versus more densely vegetated lands) (Trenham 1998a). As with migration distances, the number of ponds used by an individual over its lifetime will be dependent on landscape features and environmental factors.

The adults mate in the ponds and the females lay their eggs in the water (Twitty 1941; Shaffer et al. 1993). Females attach their eggs singly, or in rare circumstances, in groups of two to four, to twigs, grass stems, vegetation, or debris (Storer 1925; Twitty 1941). In ponds with limited or no vegetation, they may be attached to objects, such as rocks and boards, on the bottom (Jennings and Hayes 1994). After breeding, adults leave the pond and return to the small mammal burrows (Loredo et al. 1996; Trenham 1998a), although they may continue to come out nightly for approximately the next 2 weeks to feed (Shaffer et al. 1993). In drought years, the seasonal ponds may not form and the adults cannot breed (Barry and Shaffer 1994).

Eggs hatch in 10 to 14 days, with newly hatched larvae ranging from 11.5 to 14.2 mm (0.45 to 0.56 in) in total length. The young salamanders (larvae) are aquatic. They are yellowish gray in color and have broad heads, large, feathery gills, and broad dorsal fins that extend well onto their back. The larvae feed on zooplankton, small crustaceans, and aquatic insects for about 6 weeks after hatching, after which they switch to larger prey (Anderson 1968). Larger larvae have been known to consume smaller tadpoles of Pacific treefrogs ( Pseudacris regilla ) and California red-legged frogs ( Rana aurora ) (J. Anderson 1968; P. Anderson 1968). The larvae are among the top aquatic predators in the seasonal pond ecosystems. The larvae often rest on the pond bottom in shallow water, but also may be found at different layers in the water column in deeper water. The young salamanders are wary and when approached by potential predators will dart into the vegetation on the bottom of the ponds (Storer 1925).

The larval stage of the California tiger salamander usually lasts 3 to 6 months, as most ponds dry up during the summer (Petranka 1998). Amphibian larvae must grow to a critical minimum body size before they can metamorphose (change into a different physical form) to the terrestrial stage (Wilbur and Collins 1973). Individuals collected near Stockton in the Central Valley during April varied from 47 to 58 mm (1.85 to 2.28 in) in length (Storer 1925). Feaver (1971) found that California tiger salamander larvae metamorphosed into terrestrial juveniles and left the breeding ponds 60 to 94 days after the eggs had been laid, with larvae developing faster in smaller, more rapidly drying ponds. The longer the ponding duration, the larger the larvae are able to grow, and the more likely they are to survive as metamorphosed juveniles and reproduce as adults (Semlitsch et al. 1988; Morey 1998). The larvae will perish if a site dries before they complete metamorphosis (P.R. Anderson 1968; Feaver 1971). Pechmann et al. (1988) found a strong positive correlation between ponding duration and total number of metamorphosed juveniles in five salamander species.

When the metamorphosed juveniles leave their ponds, in the late spring or early summer, before the ponds dry completely, they settle in small mammal burrows at the end of their nightly movements (Zeiner et al. 1988; Shaffer et al. 1993; Loredo et al. 1996). Like the adults, juveniles may emerge from these retreats to feed during nights of high relative humidity (Storer 1925; Shaffer et al. 1993) before settling in their selected estivation sites for the dry hot summer months. Juveniles have been observed to migrate up to 1.6 km (1 mi) from breeding ponds to estivation areas (Austin and Shaffer 1992).

Lifetime reproductive success for California and other tiger salamanders is low. Trenham et al. (2000) found the average female bred 1.3 times and produced 8.5 young that survived to metamorphosis per reproductive effort; this resulted in roughly 11 metamorphic offspring over the lifetime of a female. Preliminary data suggest that most individuals of the California tiger salamanders require 2 years to become sexually mature, but some individuals may be slower to mature (Shaffer et al. 1993). Some animals do not breed until they are 4 to 6 years old. While individuals may survive for more than 10 years, many may breed only once, and, in some populations, less than 5 percent of marked juveniles survive to become breeding adults (Trenham 1998b). With such low recruitment, isolated populations can decline greatly from unusual, randomly occurring natural events as well as from human-caused factors that reduce breeding success and individual survival. Factors that repeatedly lower breeding success in isolated ponds that are too far from other ponds for migrating individuals to replenish the population can function to quickly extirpate a population.

The life history and ecology of the California tiger salamander on the Santa Rosa Plain in Sonoma County make it likely that this population has a metapopulation structure (Hanski and Gilpin 1991). A metapopulation is a set of local populations or breeding sites within an area, where typically migration from one local population or breeding site to other areas containing suitable habitat is possible, but not routine. Movement between areas containing suitable habitat (i.e., dispersal) is restricted due to inhospitable conditions around and between areas of suitable habitat. Because many of the areas of suitable habitat may be small, and support small numbers of salamanders, local extinction of these small units may be common. A metapopulation's persistence depends on the combined dynamics of these local extinctions and the subsequent recolonization of these areas by dispersal (Hanski and Gilpin 1991, 1997; McCullough 1996; Hanski 1999).

We believe habitat loss has reduced the sizes and connectivity between patches of suitable and occupied salamander habitat on the Santa Rosa Plain. The reduction in the extent and amount of suitable water bodies, grasslands, and other suitable upland habitats likely has eliminated connectivity among most of the known breeding sites, making recolonization of some sites more difficult following local extinction. In addition, the reduction of habitat below a certain size threshold has the effect of reducing the quality of the remaining habitat by reducing the size of habitat boundaries, and making effects of other factors such as amount of food, availability of rodent burrows, pesticide use, mortality from vehicles, and predators more pronounced given the smaller area now exposed to such impacts. There is not enough data to determine what the size threshold for habitat might be, whereby any further reduction would lower the quality of the remaining habitat. But it is probable that the acreage is dependent on factors such as the type of building occurring along habitat boundaries ( i.e., residential, industrial, community park), number of roads bordering the habitat and the amount of traffic those roads experience, amount of pesticide use within the breeding pool watershed, or whether domestic animals or people have access to the site during periods when salamanders are vulnerable such as migrating to or from estivation sites. It is likely that there is a size beyond which the combination of various impacts will result in the loss of more salamanders than the Sonoma County California tiger salamander population can produce, and thus local extinction will occur.

On September 18, 1985, we published the Vertebrate Notice of Review (NOR) (50 FR 37958), which included the California tiger salamander as a category 2 candidate species for possible future listing as threatened or endangered. Category 2 candidates were those taxa for which information contained in our files indicated that listing may be appropriate but for which additional data were needed to support a listing proposal. The January 6, 1989, and November 21, 1991, candidate notices of review (54 FR 554 and 56 FR 58804, respectively) also included the California tiger salamander as a category 2 candidate, soliciting information on the status of the species.

On February 21, 1992, we received a petition from Dr. H. Bradley Shaffer of the University of California at Davis (UCD), to list the California tiger salamander as an endangered species. We published a 90-day petition finding on November 19, 1992 (57 FR 54545), concluding that the petition presented substantial information indicating that listing may be warranted. On April 18, 1994, we published a 12-month petition finding (59 FR 18353) that the listing of the California tiger salamander was warranted but precluded by higher priority listing actions. We elevated the species to category 1 status at that time, which was reflected in the November 15, 1994, NOR (59 FR 58982). Category 1 candidates were those taxa for which we had on file sufficient information on biological vulnerability and threats to support preparation of listing proposals.

We discontinued the use of different categories of candidates in the NOR, published February 28, 1996 (61 FR 7596), and defined “candidate species” as those meeting the definition of former category 1. We maintained the California tiger salamander as a candidate species in that NOR, as well as subsequent NORs published September 19, 1997 (62 FR 49398), October 25, 1999 (64 FR 57533), and October 30, 2001 (66 FR 54808).

On June 12, 2001, we received a petition dated June 11, 2001, from the Center for Biological Diversity (CBD) and Citizens for a Sustainable Cotati to emergency list the Sonoma County population of the California tiger salamander as an endangered species and to designate critical habitat. On February 27, 2002, CBD filed a complaint for our failure to emergency list the Sonoma County population of the California tiger salamander as endangered ( Center for Biological Diversity v. U.S. Fish and Wildlife Service (Case No. C-02-0558 WHA)). On June 6, 2002, based on a settlement agreement between ourselves and CBD, the court signed an order requiring us to submit for publication in the Federal Register , a proposal and/or emergency rule to list the species by July 15, 2002. This emergency listing rule, and the concurrently published proposed rule, complies with the settlement agreement.

Under the Act, we must consider for listing any species, subspecies, or, for vertebrates, any Distinct Population Segment (DPS) of these taxa if there is sufficient information to indicate that such action may be warranted. To implement the measures prescribed by the Act and its Congressional guidance, we, along with the National Marine Fisheries Service, developed policy that addresses the recognition of DPSs for potential listing actions (61 FR 4722). The policy allows for a more refined application of the Act that better reflects the biological needs of the taxon being considered, and avoids the inclusion of entities that do not require its protective measures. Under our DPS policy, we use two elements to assess whether a population segment under consideration for listing may be recognized as a DPS. The elements are: (1) The population segment's discreteness from the remainder of the species to which it belongs; and (2) the significance of the population segment's to the species to which it belongs. If we determine that a population segment being considered for listing represents a DPS, then the level of threat to the population is evaluated based on the five listing factors established by the Act to determine if listing it as either threatened or endangered is warranted.

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

The Sonoma County population of the California tiger salamander (Sonoma County population) is discrete in relation to the remainder of the species as a whole. The population is geographically isolated and separate from other California tiger salamanders. The Sonoma County population is widely separated geographically from the closest populations which are located in Contra Costa, Yolo, and Solano Counties. These populations are separated from the Sonoma County population by the Coast Range, Napa River, and the Carquinez Straits, a distance of about 72 km (45 mi). There are no known records of the California tiger salamander in the intervening areas (Dee Warenycia, California Department of Fish and Game (CDFG), pers. comm., 2002). There is no evidence of natural interchange of individuals in the Sonoma County population with other California tiger salamander populations. As detailed below, this finding is supported by an evaluation of the genetic variability of the species.

Dr. H. Bradley Shaffer analyzed the population genetics of the California tiger salamander (Shaffer et al. 1993). Allozyme variation (distinct types of enzymes (proteins) in the cells, which are formed from an individuals inherited genes) and mitochondrial DNA sequence data indicate that there are seven distinct populations of the California tiger salamander. These seven populations differ markedly from each other in their genetic characteristics, with the Sonoma County population having gene sequences not found in any other populations (Shaffer et al. 1993). The sequence divergence between the Sonoma County population was found to diverge on the order of 2 percent from other populations of this species. This high level of genetic divergence indicates that there has been little, if any, gene flow between the Sonoma County population and other California tiger salamanders populations. Shaffer's mitochondrial DNA sequence data (Shaffer and McKnight 1996) suggest that the seven distinct populations differ markedly in their genetic characteristics, with Sonoma County California tiger salamanders having gene sequences not found in other California tiger salamanders. These levels of divergence justify separate species recognition between the Sonoma County population and the other California tiger salamander populations and may warrant separate taxonomic recognition (Shaffer et al. 1993; Shaffer and McKnight 1996).

Under our DPS policy, once we have determined that a population segment is discrete, we consider its biological and ecological significance to the larger taxon to which it belongs. This consideration may include, but is not limited to, evidence of the persistence of the discrete population segment in an ecological setting that is unique for the taxon; evidence that loss of the population segment would result in a significant gap in the range of the taxon; evidence that the population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range; and evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics. We have found substantial evidence that two of these significance factors are met by the population of the California tiger salamander that occurs on the Santa Rosa Plain in Sonoma County.

The extinction of the Sonoma County population would result in the loss of a significant genetic entity and the curtailment of the range of the species. As discussed above, the Sonoma County population is genetically distinct from other populations of California tiger salamanders. Loss of the Sonoma County population would eliminate the most northern coastal extent of the range of the species. The Sonoma County population is geographically isolated. Genetic analysis of the species supports the hypothesis that no natural interchange of the Sonoma County population occurs with other California tiger salamander populations.

We evaluated the Sonoma County population as a DPS, addressing the two elements which our policy requires us to consider in deciding whether a vertebrate population may be recognized as a DPS and considered for listing under the Act. We conclude that the Sonoma County population is discrete, as per our policy, based on its geographic separation and genetic divergence from the rest of the California tiger salamander populations. We conclude that the Sonoma County population of the California tiger salamander is significant because the loss of the species from the Santa Rosa Plain in Sonoma County would result in a significant reduction in the species' range and would constitute loss of a genetically divergent portion of the species. Because the population segment meets both the discreteness and significance criteria of our DPS policy, the DPS qualifies for consideration for listing. An evaluation of the level of threat to the DPS based on the five listing factors established by the Act follows.

Section 4 of the Act (16 U.S.C. 1533) and regulations (50 CFR part 424) promulgated to implement the listing provisions of the Act describe the procedures for adding species to the Federal list. We may determine a species 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 Sonoma County DPS of the California tiger salamander (Sonoma County California tiger salamander) are as follows:

The Sonoma County California tiger salamander population, as well as the population in Santa Barbara County, which we listed as endangered (65 FR 57242), are considered to be the most vulnerable of the seven populations of the California tiger salamander (Shaffer et al. 1993; LSA Associates 2001). Urban development is the primary threat to the Sonoma County California tiger salamander. The species now occurs in scattered and increasingly isolated breeding sites within a small portion of its historic range on the Santa Rosa Plain in Sonoma County. Four known breeding sites have been destroyed in the last two years. All of the seven known extant breeding sites are distributed in the City of Santa Rosa, and the immediate associated unincorporated areas, an area approximately 8 km (5 mi) by 6 km (4 mi) wide. Within this area and south to the Cotati area, there are scattered records of adult salamanders crossing roads during the fall and winter rains, and also instances of breeding in roadside ditches. However, these roadside ditches likely do not represent viable breeding sites because they either do not have sufficient ponding duration and/or associated uplands for estivation.

The seven known breeding sites are imperiled by the construction of high-density housing, office buildings, road construction, and other development. The survival and viability of the Sonoma County California tiger salamander is directly related to availability of breeding pools with hydrological and other factors conducive to their reproduction. There also must be adequate upland acreage, with associated small mammal burrows, in the vicinity of the Sonoma County California tiger salamander breeding pools to accommodate estivation. The Santa Rosa Plain once contained extensive valley oak woods, native grasslands, riparian, and vernal pools. Vernal pools and seasonal wetlands likely were extensive, due to the flat terrain, clay soils, and relative high rainfall (CH2M Hill 1995). Based on the topography and habitat type of the lands that have been converted to urban development and agriculture on the Santa Rosa Plain, the number of breeding ponds, the extent of upland habitats, and the quality of the remaining habitats has been greatly reduced since Europeans first settled the region.

The extent of the historic range of the California tiger salamander within the Santa Rosa Plain in Sonoma County is uncertain due to limited information collected on this population prior to the 1990s (Shaffer et al. 1993; Jennings and Hayes 1994). However, based on the habitat requirements of the species for low elevation, seasonally filled breeding ponds and small rodent burrows, the ecology of the taxon, the general trend of urban development into suitable and occupied habitat, and other adverse factors affecting the species, we believe that it once occupied a more extensive, but still limited area within the Santa Rosa Plain.

There are no available estimates of the total number of individual Sonoma County California tiger salamanders. The difficulty of estimating total California tiger salamander population size has been discussed by a number of biologists (Shaffer et al. 1993; Jennings and Hayes 1994). However, estimates have been made for only a few populations in Monterey County (Barry and Shaffer 1994; Trenham et al. 1996). This is due to the lack of data about the numbers of individuals of the Sonoma County California tiger salamander, the fact that these amphibians spend much of their lives underground, and the fact that only a portion of the total number of animals migrate to the ponds to breed every year.

A 1990 study of the Santa Rosa Plain found that 25 percent of an 11,300 hectare (ha) (28,000 acres (ac)) study area had been converted to subdivisions, “ranchettes,” golf courses, and commercial buildings (Waaland et al. 1990). An additional 17 percent of the study area had been converted to agricultural uses. Since 1990, many more acres have been urbanized and converted to intensive agriculture, particularly vineyards. Even relatively minor habitat modifications, such as construction of roads, storm drains, and road curbs that traverse the area between breeding and estivation sites, increase habitat fragmentation, impede or prevent migration, and result in direct and indirect mortality (Mader 1984; S. Sweet, in litt., 1993, 1998; Findlay and Houlahan 1996; Launer and Fee 1996; Gibbs 1998). All of the known Sonoma County California tiger salamander breeding pools are within 450 m (1,476 ft) of roads and residential development, and five of the seven remaining viable breeding locations are within 100 m (328 ft) of major development activities.

Urban development poses a significant threat to all of the known breeding sites of the Sonoma County California tiger salamander. All of these sites are found in and around the former Santa Rosa Air Center that is located in west Santa Rosa. This area contains one of the largest undeveloped blocks of land within the city limits of Santa Rosa. Urban development is proposed on or near locations containing three of the seven known breeding sites in the Santa Rosa area (Santa Rosa Department of Community Development 1994; EIP Associates 2000). The airport was closed and the property sold to the City of Santa Rosa in the mid-1980s. The City of Santa Rosa is proposing the majority of the area be developed as part of their Southwest Area Plan (Santa Rosa Department of Community Development 1994; EIP Associates 2000). Urban development of this area is proceeding rapidly. Demographic data obtained from the City of Santa Rosa Housing and Community Development Commission indicate that since 1980, Santa Rosa has experienced a greater than 53 percent increase in its population. From 1980 until 1997, the number of housing units grew by 66 percent from 35,403 units in 1980 to 53,558 units by January 1, 1997 (Michael Enright, City of Santa Rosa, pers. comm., 2001).

Four known breeding sites were lost within the past two years, two of which were lost due to urban development/housing with another lost to commercial development. As recently as June 2002, the fourth breeding site near Cotati was destroyed when the pond was filled for unknown reasons (David Cook, The Wildlife Society, in litt., 2002; Liam Davis, CDFG, in litt., 2002). The Cotati location was considered highly productive for salamanders (D. Cook, in litt., 2002).

California tiger salamanders require a large amount of barrier-free landscape for successful migration (Shaffer et al. 1993; Loredo et al. 1996). Roads and highways are permanent physical obstacles that can block the animals from moving to new breeding habitat, or prevent them from returning to their breeding ponds or estivation sites. Road construction can reduce or completely eliminate a breeding site, and in some cases, larger portions of a metapopulation.

All the pools at the known extant Sonoma County California tiger salamander breeding sites are within 460 m (1,509 ft) of roads of various sizes. Findlay and Houlahan (1996) found that roads within 2000m (1.2 mi) of wetlands adversely affected the number of amphibian species. The Federal Emergency Management Agency (FEMA)/Broadmore North Preserve, and Hall Road Preserve are the only lands with known breeding sites where salamanders can access breeding pools from estivation areas without crossing roads.

Large numbers of California tiger salamanders at some locations in the Central Valley, up to 15 or 20 per mile of road (Joe Medeiros, Sierra College, pers. comm., 1993), have been killed as they crossed roads on breeding migrations (Hansen and Tremper 1993; S. Sweet, in litt., 1993). Estimates of losses to automobile traffic range from 25 to 72 percent of the breeding population for several different populations of the species (Twitty 1941; S. Sweet, in litt., 1993; Launer and Fee 1996). Curbs and berms as low as 9 to 13 cm (3.5 to 5 in), which allow salamanders to climb onto the road but can restrict or prevent their movements off the roads, can effectively turn the roads into sources of high mortality (Launer and Fee 1996; S. Sweet, in litt., 1998). Automobile traffic along Stony Point Road in western Santa Rosa has probably quadrupled in the past 5 years (D. Cook, pers. comm., 2002). This was once a moderately used rural road and is now a major route for commuter traffic. Between November 21, 2001, and December 5, 2001, 26 California tiger salamanders were found killed by cars on this road between Santa Rosa and Cotati. Fourteen of these dead California tiger salamanders were found along Stoney Point Road near Meachum Road (D. Cook, pers. comm., 2002).

Except for the Hall Road Preserve and the FEMA/Broadmore North Preserve, all of the known breeding sites of the Sonoma County California tiger salamander are found on small locations in areas being rapidly converted from low-intensity farming, cattle grazing, and low-density housing, to high density housing, and office buildings. The Hall Road Preserve and the FEMA/Broadmore North Preserve have hydrologic regimes that are adequate to provide recruitment for SCTS in normal to dry years. All other known breeding locations are either slated for development or will have their hydrology altered by disrupting the natural runoff from surrounding uplands. A description of the known extant breeding sites of the Sonoma County California tiger salamander is presented below.

(1) Hall Road Preserve: This 74 ha (183 ac) site is owned by CDFG. It is the largest preserved area where the Sonoma County California tiger salamander is currently known to occur. It contains two pools with ponding levels adequate for successful breeding during drought years. This preserve contains seven additional breeding pools that are relatively shallow and do not pond water long enough for successful breeding in years of moderate to low rainfall. Surveys conducted over the past 2 years indicate this preserve does not function as a highly productive breeding site (Cook and Northern 2001). The land surrounding the preserve is privately owned, and the City of Santa Rosa has issued permits for urban development. Urban development has occurred on adjacent lands to the east and west, and agriculture to the north of the preserve. Exotic predators of the salamander, such as Louisiana crayfish ( Procrambus clarkii ), sticklebacks ( Gasterosteus aculeatus, a fish), and possibly bullfrogs ( Rana catesbeiana ) are present at the Hall Road Preserve.

(2) FEMA/Broadmore North Preserve: This breeding site consists of two properties, the FEMA Preserve and the Broadmore North Preserve. The 24 ha (59 ac) FEMA Preserve is owned by CDFG and it contains one of the most productive Sonoma County California tiger salamander breeding sites. The 6.5 ha (16 ac) Broadmore North Preserve is a conservation area that was set aside as mitigation by the Bellvue School District. It is also managed by CDFG. The two breeding sites are contiguous and encompass 30 ha (75 ac) containing three breeding pools. The FEMA Preserve has two large, deep pools that remain ponded late in the season. Salamanders probably breed there during most years. The one breeding pool on Broadmore North is shallow and does not contribute salamanders to the population in dry years (i.e., there is no recruitment) (D. Cook, pers. comm., 2001). While there is no hydrological connection between this site and the deeper pools contained on the FEMA Preserve, the FEMA Preserve probably allows the salamanders at the Broadmore North Preserve the opportunity to breed during dry years. Urban development has occurred to the north and east sides of the preserves. Although these breeding sites are protected, urbanization imperils upland habitats on private land to the east and west of them. A new road and housing development on lands adjacent to the preserves' western boundaries have been permitted by City of Santa Rosa. This new road and construction will eliminate the western migration route between Southwest Air Center and the FEMA and Broadmore North preserves for salamander from this breeding site.

(3) Northwest Air Center: This breeding site is composed of one breeding pond and is located on private land. Much of the associated upland has recently been developed. This site is bordered on the west and north by roads subject to heavy traffic from housing developments that have been constructed under the City of Santa Rosa's Southwest Area Development Plan. Housing has eliminated migration routes to the east and south, thus leaving this site as an isolated breeding site with less than 22 ha (55 ac) of remaining undeveloped upland area and pool with private lands surrounding it to the south and east (M. Enright, pers. comm., 2001).

(4) Southwest Air Center: This breeding site is located on private land and it contains one breeding pool. The City of Santa Rosa has issued permits for a residential development that likely will result in the elimination of the salamanders at this location. Preparation of this site for construction has been initiated. The grading of the upland areas in the summer dry season likely will eliminate estivating salamanders at this site. The salamanders at this location also may utilize the breeding ponds at the FEMA and Broadmore North preserves by an existing migration corridor to the east. The destruction of this breeding site likely will further isolate the animals inhabiting this location. Loss of this breeding site will contribute to the overall isolation of the remaining breeding sites. Based on the completion time of the construction of other approved projects in the area, the West Air Center breeding site likely will be lost by September 2002.

(5) North Air Center: There is one breeding pool on this privately owned site. Recent residential and commercial developments which border this breeding site on three sides severely restrict the potential for migration. The City of Santa Rosa has approved residential and road projects for this location that will adversely affect the salamanders. This site is bordered by houses to the west, a road with high levels of automobile traffic to the north, and a corporate park to the east. There is a small tract of undeveloped private land to the south. No protection exists for the uplands or breeding pool which is located directly south of Sebastopol Road. The upland area is about 15 ha (37 ac). Portions of Sebastopol Road have been widened to four traffic lanes, including the construction of storm drains and curbs. The curbs likely funnel migrating salamanders into storm drains where they perish after being washed into the sewer system. Residential and commercial projects currently are under construction in this area, and this breeding site likely will be significantly degraded and completely isolated by September, 2002.

(6) Wright Avenue: This breeding site is located on private land. Approved development described in the City of Santa Rosa's Southwest Area Development Plan will isolate this breeding site through increased automobile traffic and residential development along Wright and Ludwig avenues. Additionally, there is no construction specifically proposed for this property, but no protection exists to prevent the breeding site and associated uplands from being developed.

(7) South Ludwig Avenue: This breeding site is located on private land and current threats to the salamanders include increased traffic along Ludwig Avenue due to increasing residential development. The breeding site and associated uplands are currently not protected from potential development on the property.

Maintenance of tracts of habitat between breeding sites will likely play a pivotal role in maintenance of the Sonoma County California tiger salamander metapopulation dynamics. If breeding sites are eliminated and the metapopulation becomes so fragmented that individuals are unable to disperse between suitable patches of habitat, the probability of natural recolonization will not offset the probability of extinction, with a result of population extinction. Some of the salamander breeding sites, such as the FEMA Preserve/Broadmore North Preserve and the pools at the Hall Road Preserve, are linked to each other by suitable habitat. If movements through these linkages are disrupted or precluded (e.g., by urban development), then the stability of the metapopulation (i.e., the exchange of individuals between breeding sites) will be affected. Isolation, whether by geographic distance or ecological factors, will prevent the influx of new genetic material, and may result in inbreeding and extinction (Levin 2002). We believe that the Sonoma County California tiger salamander is at risk from increasing fragmentation and isolation that is the result of urban development.

The larvae of non-native tiger salamanders are used as bait by some fishermen and are still sold in California for this purpose. The extent of the use of the Sonoma County California tiger salamander for this purpose is unknown.

Tiger salamanders are considered to be excellent pets by amateur herpetologists (Porras 2002). The Sonoma County California tiger salamander does not appear to be particularly popular among amphibian and reptile collectors; however, Federal listing could raise the value of the species within wildlife trade markets and increase the threat of unauthorized collection above current levels (Special Agent Ken McCloud, Service, pers. comm., 2002). Even limited interest in the species could pose a serious threat to the small population of this species.

The specific effects of disease on the Sonoma County California tiger salamanders is not known and the risks to the animal have not been determined. Large numbers of dead and dying California tiger salamanders were observed in a pond in the Los Alamos Valley in Santa Barbara County, but the cause was not determined (S. Sweet, pers. comm., 1998). Several pathogenic (disease-causing) agents, including at least one bacterium (Worthylake and Hovingh 1989), a water mold (fungus) (Kiesecker and Blaustein 1997; Lefcort et al. 1997), and a virus (McLean 1998), have been associated with die-offs of tiger salamanders, as well as other amphibian species. Since Sonoma County California tiger salamanders are found in only a few sites in a relatively small area, a disease outbreak could devastate one or all of the known extant breeding sites if introduced into Sonoma County.

Worthylake and Hovingh (1989) described repeated die-offs of tiger salamanders ( Ambystoma tigrinum ) at Desolation Lake in the Wasatch Mountains of Utah. Affected salamanders had red, swollen hind legs and vents, and widespread hemorrhage of the skin and internal organs. The researchers determined that the die-offs were due to infection from the bacterium Acinetobacter. The number of bacteria in the lake increased with increasing nitrogen levels as the lake dried. The nitrogen was believed to come from both atmospheric deposition and waste from sheep grazing in the watershed (Worthylake and Hovingh 1989). Acinetobacter are common in soil and animal feces.

Lefcort et al. (1997) found that tiger salamanders raised in natural and artificial ponds contaminated with silt were susceptible to infection by the water mold Saprolegnia parasitica at a location in Georgia. The fungus first appeared on the feet, spread to the entire leg, and then infected animals died. Die-offs of western toads ( Bufo boreas ), Cascades frogs ( Rana cascadae ), and Pacific treefrogs also have been associated with Saprolegnia infections (Kiesecker and Blaustein 1997). Saprolegnia is widespread in natural waters and commonly grows on dead organic material (Wise 1995).

In addition to the Acinetobacter, viruses associated with die-offs of tiger and spotted salamanders in Maine and North Dakota, have been isolated (McLean 1998). In 1995, researchers reported similar die-offs attributed to an iridovirus in southern Arizona and near Regina, Saskatchewan, Canada (McLean 1998). Iridoviruses are found in both fish and frogs and may have been introduced to some sites through fish stocking programs. Little is known about the historical distribution of iridoviruses in salamander populations. The virus may be carried by birds, such as herons and egrets (Family Ardeidae), that feed on the salamanders. Such a virus could be devastating to the Sonoma County California tiger salamanders.

Predation and competition by introduced or non-native species potentially affects all of the seven known Sonoma County California tiger salamander breeding sites. Bullfrogs prey on California tiger salamander larvae (P.R. Anderson 1968; Lawler et al. 1999). Morey and Guinn (1992) documented a shift in amphibian community composition at a vernal pool complex, with California tiger salamanders becoming proportionally less abundant as bullfrogs increased in number. Although bullfrogs are unable to establish permanent breeding populations in unaltered vernal pools and seasonal ponds, dispersing immature frogs take up residence in pools during winter and spring (Morey and Guinn 1992), and may prey on native amphibians, including larval salamanders. One of the pools at the Hall Road breeding site, and two of the pools contained at the FEMA/Broadmore North preserves, are located within 46 m (150 ft) of ditches or creek channels known to contain bullfrogs or crayfish. Bullfrogs likely occur in Roseland Creek , which is near the FEMA/Broadmore North preserve (D. Cook, pers. comm., 2002). Bullfrogs are likely present in ditches that cross the Hall Road Preserve (D. Cook, pers. comm., 2002).

Mosquito fish ( Gambusia affinis ), rather than pesticides, are often placed into ponds by vector control agencies to eliminate mosquitoes. Salamanders may be especially vulnerable to mosquito fish predation due to their fluttering external gills, which may attract these visual predators (Graf 1993). Loredo-Prendeville et al. (1994) found no California tiger salamanders inhabiting ponds containing mosquito fish. Mosquito fish prey on other amphibian species, such as the California newt ( Taricha torosa ) (Gamradt and Kats 1996) and Pacific treefrog (Goodsell and Kats 1999) tadpoles in both field and laboratory experiments, even given the optional prey of mosquito larvae (Goodsell and Kats 1999; Lee Kats, Pepperdine University, pers. comm., 1999). Robert Stebbins observed mosquito fish ingesting and then spitting out California newt larvae, causing severe damage to the newts in the process (Graf 1993). Given the effects of mosquito fish on other amphibian species, they are likely to have similar effects on California tiger salamanders. If they have the same effects, the use of mosquito fish in California tiger salamander habitat threatens the persistence of the species, especially in the isolated and decline Sonoma County California tiger salamander population.

Other fish, such as sticklebacks, may prey on the Sonoma County California tiger salamander. One pool at the Hall Road Preserve appears to have all of the biological components for successful California tiger salamander breeding, but has a small connector to a drainage ditch containing stickleback. Sonoma County California tiger salamanders have never been found at this site, and it is suspected that predation of their eggs and larvae by this fish is the limiting factor (D. Cook, pers. comm., 2002).

Crayfish also apparently prey on California tiger salamanders (Shaffer et al. 1993) and may have eliminated some populations (Jennings and Hayes 1994). The crayfish prey on California newt eggs and larvae, in spite of toxins produced by these amphibians, and they may be a significant factor in the loss of newts from several streams in southern California (Gamradt and Kats 1996). These crayfish have been found at both the FEMA/Broadmore North and Hall Road Preserves. At the FEMA property, crayfish were found in the pool (D. Cook, pers. comm., 2002). The crayfish likely came from the adjacent Roseland Creek Channel. Louisiana crayfish have been found in the ditches that cross the Hall Road Preserve, but not at any of the pools known to support Sonoma County California tiger salamander populations (D. Cook, pers. comm., 2002). The presence of both stickleback and crayfish, along with the suspected presence of bullfrogs, could affect the Hall Road Preserve. The Hall Road Preserve is one of only two breeding sites that still contain pools with migration corridors that accommodate the transfer of genetic material between pools, while also allowing for the repopulation of individual pools in the event of a randomly occurring catastrophic event.

California tiger salamander larvae also are preyed upon by many native species. In healthy salamander populations, such predation is probably not a significant threat. But when combined with other impacts, such as predation by non-native species, contaminants, migration barriers, or habitat alteration, it may cause a significant decrease in population viability. Native predators include great blue herons ( Ardea herodias ) and egrets, western pond turtles ( Clemmys marmorata ), various garter snakes ( Thamnophis spp.), larger California tiger salamander larvae, larger spadefoot toad ( Scaphiopus hammondii ) larvae, and California red-legged frogs (Mike Peters, Service, in litt. , 1993; Hansen and Tremper 1993).

The primary cause of the decline of the Sonoma County California tiger salamander is the loss, degradation, and fragmentation of habitat from human activities. Federal, State, and local laws have been insufficient to prevent past and ongoing losses of the limited habitat of the Sonoma County California tiger salamander.

Under section 404 of the Clean Water Act (CWA) (33 U.S.C. 1344 et seq. ), the U.S. Army Corps of Engineers (Corps) regulates the discharge of fill material into waters of the United States, including wetlands. Section 404 regulations require applicants to obtain a permit for projects that involve the discharge of fill material into waters of the United States, including wetlands. However, normal farming activities are exempt under the CWA and do not require a permit (53 FR 20764; Robert Wayland III, Environmental Protection Agency (EPA), in litt. , 1996). Projects that are subject to regulation may qualify for authorization to place fill material into headwaters and isolated waters, including wetlands, under several nationwide permits. The use of nationwide permits by an applicant or project proponent is normally authorized with minimal environmental review by the Corps. No activity that is likely to jeopardize the continued existence of a threatened or endangered species, or that is likely to destroy or adversely modify designated critical habitat of such species, is authorized under any nationwide permit. An individual permit may be required by the Corps if a project otherwise qualifying under a nationwide permit would have greater than minimal adverse environmental impacts.

Three federally endangered plants, Sonoma sunshine ( Blennosperma bakeri ), Sebastopol meadowfoam ( Limnanthes vinculans ), and Burke's goldfields ( Lasthenia burkei ) occur on the Santa Rosa Plain of Sonoma County in the vicinity of Sonoma County California tiger salamander. However, little overlap occurs between the viable breeding sites of this species and these federally listed vernal pool species. Any Corps consultation requirement for fill of pools on the Santa Rosa Plain would be triggered by the listed plants. Since the salamander and the federally listed plants do not substantially overlap, salamander breeding pools are unlikely to be protected by presence of the plants or their habitat. Furthermore, even if breeding pools of this animal are avoided due to the presence of a federally listed plant species, this protection may only extend to the pool itself with a small upland buffer. Since Sonoma County California tiger salamanders spend up to 80 percent of their life in small mammal burrows in upland habitats surrounding breeding pools, the protection of the pool itself, with concurrent loss of uplands surrounding the pool, would still result in the loss of local Sonoma County California tiger salamander breeding sites.

Recent court cases may further limit the Corps' ability to utilize the CWA to regulate the fill or discharge of fill or dredged material into the aquatic environment within the current range of the Sonoma County California tiger salamander ( Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC)). The effect of SWANCC on Federal regulation of activities in wetlands in the area of the Sonoma County California tiger salamander has recently become clear by the Corps' failure to assert its jurisdiction over fill of several wetlands within the range of the Sonoma county California tiger salamander. In a letter from the Corps dated March 8, 2002, concerning the fill of 0.18 ha (0.45 ac) of seasonal wetlands southwest of the intersection of Piner and Marlow Roads (Corps File Number 19736N), the Corps referenced the SWANCC decision and reiterated that the subject wetlands were not “waters of the United States” because they were: (1) Not navigable waters; (2) not interstate waters; (3) not part of a tributary system to 1 or 2; (4) not wetlands adjacent to any of the foregoing; and (5) not an impoundment of any of the above. The letter further stated that the interstate commerce nexus to these particular waters is insufficient to establish CWA jurisdiction, and therefore, not subject to regulation by the Corps under section 404 of the CWA. The Corps also cited the SWANCC decision as their reasoning for not taking jurisdiction over fill of Sonoma County California tiger salamander breeding pools at the recently constructed South Sonoma Business Park.

The CDFG recognizes the California tiger salamander as a species of special concern. This designation does not provide the species with any protection from actions that injure or kill them, or damage or destroy their habitat. The California tiger salamander is not protected under the California Endangered Species Act.

The California Environmental Quality Act (CEQA) (Public Resources Code Sec. 21000-21177) requires a full disclosure of the potential environmental impacts of proposed projects. The public agency with primary authority or jurisdiction over a project is designated as the lead agency and is responsible for conducting a review of the project and consulting with the other agencies concerned with the resources affected by the project. Section 15065 of the CEQA Guidelines, as amended, 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.” Once significant effects are identified, the lead agency has the option of requiring mitigation for effects through changes in the project or to decide that overriding considerations make mitigation infeasible (CEQA Sec. 21002). In the latter case, projects may be approved that cause significant environmental damage, such as destruction of listed endangered species and/or their habitat. Protection of listed species through CEQA is, therefore, dependent upon the discretion of the lead agency involved.

We are not aware of any specific county or city ordinances that provide protection for the Sonoma County California tiger salamander.

Several other factors, including contaminants, ground squirrel and gopher control, hybridization with non-native salamanders, predation, and competition with introduced species may have negative effects on California tiger salamanders and their aquatic and upland habitats. These factors are discussed below.

Sonoma County California tiger salamanders probably are exposed to a variety of pesticides and other chemicals throughout their range. Sonoma County California tiger salamanders also could die from starvation by the loss of their prey base. Hydrocarbon and other contamination from oil production and road runoff; the application of numerous chemicals for roadside maintenance; urban/suburban landscape maintenance; and rodent and vector control programs may all have negative effects on tiger salamander populations, as detailed below.

Road mortality is not the only risk factor associated with roads, as oil and other contaminants in runoff have been detected in adjacent ponds and linked to die-offs and deformities in California tiger salamanders and spadefoot toads, and die-offs of invertebrates that form most of both species' prey base (S. Sweet, in litt. , 1993). Lefcort et al. (1997) found that oil had limited direct effects on 5-week-old marbled ( Ambystoma opacum ) and tiger salamanders ( A. t. tigrinum ). However, it was found that salamanders from oil-contaminated natural ponds metamorphosed earlier at smaller sizes, and those from oil-contaminated artificial ponds had slower growth rates, than larvae raised in non-contaminated ponds. Their studies did not address effects on eggs and early larval stages, where the effects may be more pronounced.

Hatch and Burton (1998) and Monson et al. (1999) investigated the effects of one component of petroleum products and urban runoff (fluoranthene, a polycyclic aromatic hydrocarbon) on spotted salamanders ( A. maculatum ), northern leopard frogs ( Rana pipiens ), and African clawed frogs ( Xenopus laevis ). In laboratory and outdoor experiments, using levels of the contaminant comparable to those found in service station and other urban runoff, the researchers found reduced survival and growth abnormalities in all species and that the effects were worse when the larvae were exposed to the contaminant under natural levels of sunlight, rather than in the laboratory under artificial light. In Sonoma County, there are a number of records of California tiger salamanders using roadside ditches. Many are in areas where there are no known breeding ponds, and these animals are utilizing the only marginal habitat remaining. Also, many pools in these areas have likely been destroyed, leaving these marginal sites as the only option for breeding. In light of the increased urbanization occurring in this area, with concurrent increases in traffic, the risk factor associated with contaminants in runoff likely will rise in both roadside ditches and across the general landscape.

In Sonoma County, over 1.4 million kilograms (3.1 million pounds) of agricultural chemicals were used in 2000 on grapes, apples, rights of way, structural pest control, and landscape maintenance (California Department of Pesticide Regulation (CDPR), Internet Website). Chemical use occurring on or near tiger salamander breeding sites in Sonoma County is primarily associated with rights of way, structural pest control, and landscape maintenance. These chemicals included metam-sodium, methyl bromide, mancozeb, petroleum oil, phosmet, chlorpyrifos, pendimethalin, parathion, paraquat dichloride, fosetyl-aluminum, acephate, cryolite, and malathion, some of which are extremely toxic to aquatic organisms, such as amphibians and the organisms on which they prey.

Even if toxic or detectable amounts of pesticides are not found in the breeding ponds or groundwater, salamanders may still be affected, particularly when chemicals are applied during the migration and dispersal seasons. All of the remaining seven documented salamander breeding sites in Sonoma County may be directly or indirectly affected by toxic landscaping chemicals due to the presence of housing developments within their drainage basins.

California tiger salamanders spend much of their lives estivating in underground retreats, typically in the burrows of ground squirrels and gophers (Loredo et al. 1996; Trenham 1998a). Widespread ground squirrel control programs were begun in California as early as 1910, and are carried out on more than 4 million ha (9.9 million ac) in California (Marsh 1987). It is unclear how effective such control programs were in reducing ground squirrel populations. According to Marsh (1987), when a ground squirrel population is at or near carrying capacity, it must be reduced by at least 90 percent annually for several years to significantly reduce the population. However, it may not be practical to attain such high reduction rates over large areas of rangelands, but it may be possible to reduce populations to low numbers (Salmon and Schmidt 1984). In some primarily agricultural counties, the ground squirrel population has been reduced and maintained at perhaps 10 to 20 percent of the carrying capacity. Rodent control programs are conducted by individual land owners and managers on grazing, vineyard, and crop production lands (Rosemary Thompson, Science Applications International Corporation, in litt. , 1998).

Pocket gopher and ground squirrel burrows are most often used by California tiger salamanders in Sonoma County (D. Cook, pers. comm., 2001). Both of these animals are classified as nongame mammals by CDFG. This means that if they are found to be injuring growing crops or other property, including garden and landscape plants, they may be controlled at any time and in any legal manner by the owner or the tenant of the premises (University of California Integrated Pest Management (UCIPM), internet website 2002).

Legal methods of pocket gopher control include trapping, strychnine-treated grain bait, and anticoagulant baits. Poisoned grains (anticoagulant baits) are the most common method used to control ground squirrels around homes and other areas where children, pets, and poultry are present (UCIPM 2002; Jon Shelgrin, CDPR, pers. comm., 2002). Zinc phosphide is highly toxic to freshwater fish and to non-target mammals (EXOTONET 1996). Zinc phosphide, a rodenticide and restricted material, turns into phosgene gas, a toxic gas once ingested by the rodents. There is little risk of California tiger salamanders ingesting any of these baits; however the use of these grains may impact the California tiger salamanders indirectly if washed into burrows or ponds used by the species.

Two of the most commonly used rodenticides, chlorophacinone and diphacinone, are anticoagulants that cause animals to bleed to death. They can be absorbed through the skin and are considered toxic to fish and wildlife (EPA 1985; Extension Toxicology Network (EXTOXNET) 1999). These two chemicals, along with strychnine, are used in Sonoma County to control rodents (R. Thompson, in litt. , 1998). Although the effects of these poisons on California tiger salamanders have not been assessed, use along roadways or surrounding residential areas may result in contamination of salamander breeding ponds, with undetermined effects. Gases, including aluminum phosphide, carbon monoxide, and methyl bromide, can be introduced into burrows either by using cartridges or by pumping. When such fumigants are used, all animals inhabiting the burrow are killed (Salmon and Schmidt 1984).

In addition to possible direct effects of rodent control chemicals, control programs probably have an adverse indirect effect on California tiger salamander populations. Control of ground squirrels could significantly reduce the number of burrows available for use by the Sonoma County California tiger salamander (Loredo-Prendeville et al. 1994). All of the remaining Sonoma County California tiger salamander breeding locations exist in areas that are likely to experience a heightened degree of rodent control due to landscaping concerns surrounding residential developments. Because the burrow density required to support California tiger salamanders in an area is not known, the loss of burrows as a result of control programs cannot be quantified at this time. However, Shaffer et al. (1993) stated that rodent control programs may be responsible for the lack of California tiger salamanders in some areas. Active ground squirrel colonies probably are needed to sustain tiger salamanders because inactive burrow systems become progressively unsuitable over time. Loredo et al. (1996) found that burrow systems collapsed within 18 months following abandonment by or loss of the ground squirrels. Although the researchers found that California tiger salamanders used both occupied and unoccupied burrows, they did not indicate that the salamanders used collapsed burrows. Rodent control programs must be analyzed and implemented carefully in California tiger salamander habitat so the persistence of the animals is not threatened. One of the remaining Sonoma County California tiger salamander sites is currently occupied by cattle. Most owners of livestock seek to eliminate ground squirrel burrows because of the threat of cows ( Bos bos ) breaking their legs if they accidentally step into a burrow.

A commonly used method to control mosquitoes, used in Sonoma County (Marin/Sonoma Mosquito and Vector Control District, internet website 2002), is the application of methoprene, which increases the level of juvenile hormone in insect larvae and disrupts the molting process. Lawrenz (1984) found that methoprene (Altosid SR-10) retarded the development of selected crustacea that had the same molting hormones (i.e., juvenile hormone) as insects, and anticipated that the same hormone may control metamorphosis in other arthropods. Because the success of many aquatic vertebrates relies on an abundance of invertebrates in temporary wetlands, any delay in insect growth could reduce the numbers and density of prey available (Lawrenz 1984). The use of methoprene could have an indirect adverse effect on the California tiger salamander by reducing the availability of prey. In more recent studies, methoprene did not cause increased mortality of gray treefrog ( Hyla versicolor ) tadpoles (Sparling and Lowe 1998). However, it caused reduced survival rates and increased malformations in northern leopard frogs ( Rana pipiens ) (Ankley et al. 1998), and increased malformations in southern leopard frogs ( R. utricularia ) (Sparling 1998). Blumberg et al. (1998) correlated exposure to methoprene with delayed metamorphosis and high mortality rates in northern leopard and mink ( R. septentrionalis ) frogs. Methoprene appears to have both direct and indirect effects on the growth and survival of larval amphibians.

Introduced species can have negative effects on California tiger salamander populations through competition and hybridization (Shaffer et al. 1993; H. Bradley Shaffer, UCD, in litt. , 1999). Competition from fish that prey on mosquito larvae and other invertebrates can reduce the survival of salamanders. Both California tiger salamanders (Stebbins 1962; J. D. Anderson 1968; Holomuzki 1986) and mosquito fish feed on micro- and macro-invertebrates; large numbers of mosquito fish may out-compete the salamander larvae for food (Graf 1993). As urban areas continue to expand, the introduction of mosquito fish into previously untreated ponds may result in the elimination of California tiger salamanders from additional breeding sites. The introduction of other fish either inadvertently or for recreational fishing or other purposes may also affect the prey base, reducing growth and survival rates of salamanders. They may also prey on tiger salamander larvae, reducing or eliminating populations (Shaffer et al. 1993).

The practice of importing the non-native tiger salamander for fish bait is no longer legal in California (CCR Title 14, Division 1, Subdivision 1, Chapter 2, Article 3, Section 4 2000). Non-native tiger salamanders have been documented in Sonoma County, although not in habitat utilized by California tiger salamanders (Shaffer et al. 1993). Non-native tiger salamanders were being sold as pets in a store directly across the street from one of the breeding sites (David Wooten, Service, pers. obs., 2002). If salamander population ranges overlap or come in contact through expansion, then hybridization may occur in closely related species and certain subspecies (Rudd 1955). Over time, a population of a subspecies could become genetically indistinguishable from a larger population of an introgressing subspecies such that the true genotype of the lesser subspecies no longer exists (Levin 2002). The Sonoma County California tiger salamander breeding sites in west Santa Rosa may be threatened by hybridization with non-native tiger salamanders because of the ability of the animals to disperse over upland areas, or through intentional introduction to the pools (Cook and Northern 2001).

Introduced salamanders may out-compete the California tiger salamander, or interbreed with the natives (Bury and Lukenbach 1976; Shaffer et al. 1993). Evidence suggests that the hybrids are viable, and that they breed with California tiger salamanders (H. Shaffer in litt., 1999). With so few remaining breeding sites of California tiger salamanders in Sonoma County, the loss of any to hybridization, with or competition from, introduced species is of serious concern.

Grazing in many cases has positive, or at least neutral, effects on the California tiger salamander (H. B. Shaffer and Peter Trenham, UCD, pers. comm., 1998; S. Sweet, pers. comm., 1998, 1999). By keeping vegetation shorter, grazing can make areas more suitable for ground squirrels, whose burrows are used by California tiger salamanders. Only one of the seven viable Sonoma County California tiger salamander breeding locations is currently being grazed. However, cattle drink large quantities of water, sometimes causing temporary pools to dry faster than they otherwise would (Sheri Melanson, Service, in litt., 1993), and possibly causing breeding pools to dry too quickly for salamanders to be able to metamorphose (Feaver 1971). Melanson (1993) noted that although vernal pool species continued to reproduce under a November-to-April grazing regime, California tiger salamanders were either absent or found in low numbers in portions of pools that were heavily trampled by cattle. Continued trampling of a pond's edge by cattle can increase the surface area of a pond, and may increase water temperature and speed up the rate of evaporation and thus reduce the amount of time the pond contains enough water (S. Sweet, pers. comm., 1998).

Reduction in water quality caused by cattle excrement may negatively affect the California tiger salamanders by increasing nitrogen levels. High nitrogen levels have been associated with blooms of bacteria (Worthylake and Hovingh 1989), and silt has been associated with fatal fungal infections (Lefcort et al. 1997) (see Factor C of this section). However, grazing generally is compatible with the continued use of rangelands by the California tiger salamander as long as intensive burrowing rodent control programs are not implemented on such areas, and grazing is not excessive (Thomas Jones, University of Michigan, in litt., 1993; Shaffer et al. 1993; S. Sweet, pers. comm., 1998, 1999).

The low numbers of Sonoma County California tiger salamander make it vulnerable to risks associated with small, restricted populations. The elements of risk that are amplified in very small populations include: (1) The impact of high death rates or low birth rates; (2) the effects of genetic drift (random fluctuations in gene frequencies) and inbreeding (mating among close relatives); and (3) deterioration in environmental quality (Gilpin and Soule 1986). 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).

Under section 4(b)(7) of the Act, and regulations at 50 CFR 424.20, we must consider development of an emergency rule to list a species if the threats to the species constitute an emergency posing a significant risk to its continuing survival. Such an emergency listing becomes effective upon publication in the Federal Register and expires 240 days following publication in the Federal Register unless, during this 240-day period, we list the species following the normal listing procedures. We discuss the reasons why emergency listing the Sonoma County California tiger salamander as endangered is necessary below. In accordance with the Act, we will withdraw this emergency rule if, at any time after its publication, we determine that substantial evidence does not exist to warrant such a rule.

In making this determination, we have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by the Sonoma County California tiger salamander. As discussed in the Summary of Factors Affecting the Species, the species faces a number of threats. These include habitat destruction, degradation, and fragmentation, collection, invasive exotic species, pesticides, and inadequate regulatory mechanisms. The Sonoma County California tiger salamander also is vulnerable to chance environmental or demographic events, to which small populations are particularly vulnerable. The combination of only seven known breeding sites, small range on the Santa Rosa Plain, and restricted habitat makes the animal highly susceptible to random events, such as drought, disease, and other occurrences.

Drought conditions in the last two years have resulting in many of these ponds drying up earlier in the season than expected. Only three pools were wet long enough to allow for recruitment in 2001. Any extended drought could result in such low numbers of individuals that recovery would be precluded.

Because the Sonoma County California tiger salamander has been reduced to only seven known breeding sites, and all of them are subject to various immediate, ongoing, and future threats as outlined above, we find that the Sonoma County California tiger salamander is in imminent danger of extinction throughout all or a significant portion of its range and warrants immediate protection under the Act. Emergency listing the Sonoma County California tiger salamander as endangered will increase the regulatory protections and resources available to the species.

Critical habitat is defined in section 3 of the Act as the—(i) 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) that 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.

Section 4(a)(3) of the Act and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary of the Interior (Secretary) designate critical habitat at the time the species is determined to be endangered or threatened. Our implementing regulations (50 CFR 424.12(a)) state that critical habitat is not determinable if information sufficient to perform the required analysis of impacts of the designation is lacking, or if the biological needs of the species are not sufficiently well known to allow identification of an area as critical habitat. Section 4(b)(2) of the Act requires us to consider economic and other relevant impacts of designating a particular area as critical habitat on the basis of the best scientific data available. The Secretary may exclude any area from critical habitat if she determines that the benefits of such exclusion outweigh the conservation benefits, unless to do so would result in the extinction of the species. In the absence of a finding that critical habitat would increase threats to a species, if any benefits would derive from critical habitat designation, then a prudent finding is warranted. In the case of this species, designation of critical habitat may provide some benefits.

The primary regulatory effect of critical habitat is the section 7 requirement that 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. Designating critical habitat may also produce some educational or informational benefits. Therefore, designation of critical habitat for the Sonoma County California tiger salamander is prudent.

However, our budget for listing activities is currently insufficient to allow us to immediately complete all the listing actions required by the Act. Not designating critical habitat at this time allows us to provide the necessary protections needed for the conservation of the species 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 critical habitat designations when it is essential that such determinations be promptly published. The legislative history of the 1982 Act amendments also emphasized this point: “The Committee feels strongly, however, that, where biology relating to the status of the species is clear, it should not be denied the protection of the Act because of the inability of the Secretary to complete the work necessary to designate critical habitat. * * * The committee expects the agencies to make the strongest attempt possible to determine critical habitat within the time period designated for listing, but stresses that the listing of species is not to be delayed in any instance past the time period allocated for such listing if the biological data is clear but the habitat designation process is not complete” (H.R. Rep. No. 97-567 at 20 (1982)). We will prepare a critical habitat designation in the future when our available resources allow.

We will protect the Sonoma County California tiger salamander and its habitat through section 7 consultations to determine whether Federal actions are likely to jeopardize the continued existence of the subspecies, through the recovery process, through enforcement of take prohibitions under section 9 of the Act, and through the section 10 process for activities on non-Federal lands with no Federal nexus.

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 practices. Recognition through listing encourages conservation actions by Federal, State, and local agencies. The Act provides for possible land acquisition and cooperation with the State and requires that recovery actions be carried out for listed species. We discuss the protection of Federal agencies, considerations for protection and conservation actions, and the prohibitions against taking and harm for the Sonoma County California tiger salamander, 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 to be listed or is 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. Federal agencies are required to confer with us informally 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 listed subsequently, 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 formal consultation with us. Federal agency actions that may affect the Sonoma County California tiger salamanders and may require consultation with us include, but are not limited to, those within the jurisdiction of the Corps, Natural Resources Conservation Service, Federal Farm Bureau, and Federal Highway Administration (FHA).

We believe that protection and recovery of the Sonoma County California tiger salamander will require reduction of the threats from destruction and degradation of wetland and associated upland habitats due to urban development, exotic predators, unnecessary ground squirrel and gopher control, and road construction. Threats from collection and pesticide drift also must be reduced. These threats should be considered when management actions are taken in habitats currently and potentially occupied by the Sonoma County California tiger salamander, and areas deemed important for dispersal and connectivity or corridors between known locations of this species. Monitoring also should be undertaken for any management actions or scientific investigations designed to address these threats or their impacts.

Listing the Sonoma County California tiger salamander provides for the development and implementation of a recovery plan for the species. This plan will bring together Federal, State, and regional agency efforts for the 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 also will describe the site-specific actions necessary to achieve conservation and survival of the species.

Listing also will require us to review any actions that may affect the Sonoma County California tiger salamander for lands and activities under Federal jurisdiction, State plans developed pursuant to section 6 of the Act, scientific investigations of efforts to enhance the propagation or survival of the animal, pursuant to section 10(a)(1)(A) of the Act, and habitat conservation plans prepared for non-Federal lands and activities pursuant to section 10(a)(1)(B) of the Act.

Federal agencies with management responsibility for the Sonoma County California tiger salamander include the Service, in relation to the issuance of section 10(a)(1)(A and B) permits for habitat conservation plans and other programs. Occurrences of this species could potentially be affected by projects requiring a permit from the Corps under section 404 of the CWA. The Corps is required to consult with us on applications they receive for projects that may affect listed species. Highway construction and maintenance projects that receive funding from the FHA would be subject to review under section 7 of the Act. In addition, activities that are authorized, funded, or administered by Federal agencies on non-Federal lands will be subject to section 7 review.

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, codified at 50 CFR 17.21, in part make it illegal for any person subject to the jurisdiction of the United States to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or attempt any such conduct), import, 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 also is illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to our agents and State conservation agencies.

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

It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of the listing on proposed and ongoing activities within a species' range. We believe that, based on the best available information, the following actions are not likely to result in a violation of section 9, provided these actions are carried out in accordance with any existing regulations and permit requirements:

(1) Possession, delivery, including interstate transport and import or export from the United States, involving no commercial activity, of Sonoma County California tiger salamanders that were collected prior to the date of publication of this emergency listing rule in the Federal Register ;

(2) Any actions that may affect the Sonoma County California tiger salamander that are authorized, funded, or carried out by a Federal agency, when the action is conducted in accordance with the consultation requirements for listed species pursuant to section 7 of the Act;

(3) Any action taken for scientific research carried out under a recovery permit issued by the Service pursuant to section 10(a)(1)(A) of the Act; and

(4) Land actions or management carried out under a habitat conservation plan approved by the Service pursuant to section 10(a)(1)(B) of the Act, or an approved conservation agreement.

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

(1) Unauthorized possession, collecting, trapping, capturing, killing, harassing, sale, delivery, or movement, including intrastate, interstate, and foreign commerce, or harming, or attempting any of these actions, of Sonoma County California tiger salamanders. Research activities where salamanders are trapped or captured will require a permit under section 10(a)(1)(A) of the Act;

(2) Activities authorized, funded, or carried out by Federal agencies that may affect the Sonoma County California tiger salamander, or its habitat, when such activities are not conducted in accordance with the consultation for listed species under section 7 of the Act;

(3) Discharges or dumping of toxic chemicals, silt, or other pollutants into, or other alteration of the quality of waters supporting Sonoma County California tiger salamanders that results in death or injury of the species or that results in degradation of their occupied habitat;

(4) Release of exotic species (including, but not limited to, bullfrogs, tiger salamanders, mosquito fish, bass, sunfish, bullhead, catfish, crayfish) into Sonoma County California tiger salamander breeding habitat;

(5) Destruction or alteration of uplands associated with seasonal pools used by Sonoma County California tiger salamanders during estivation and dispersal, or modification of migration routes such that migration and dispersal are reduced or precluded; and

(6) Activities (e.g., habitat conversion, excessive livestock grazing, road and trail construction, recreation, development, and unauthorized application of herbicides and pesticides in violation of label restrictions) that directly or indirectly result in the death or injury of larvae, sub-adult, or adult Sonoma County California tiger salamanders, or modify Sonoma County California tiger salamander habitat and significantly affect their essential behavioral patterns including breeding, foraging, sheltering, or other life functions. Otherwise lawful activities that incidentally take Sonoma County California tiger salamanders, but have no Federal nexus, will require a permit under section 10(a)(1)(B) of the Act.

Questions regarding whether specific activities will constitute a violation of section 9 should be directed to the Field Supervisor of the Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT section). Requests for copies of the regulations regarding listed species and 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 (503/231-2063; facsimile 503/231-6243).

We have determined that an Environmental Assessment and Environmental Impact Statement, 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 as amended. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

This rule does not contain any new collections of information other than those already approved by the Office of Management and Budget under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , and assigned control number 1018-0094, which is valid through July 31, 2004. This rule will not impose record keeping or reporting requirements on State or local governments, individuals, businesses, or organizations. 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 control number.

On May 18, 2001, the President issued an Executive Order (E.O. 13211) on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

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

The primary author of this rule is David Wooten, U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office ( see ADDRESSES section).

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2002 TAC of northern rockfish for the Western Regulatory Area was established as 600 metric tons (mt) by an emergency rule implementing 2002 harvest specifications and associated management measures for the groundfish fisheries off Alaska (67 FR 956, January 8, 2002, and 67 FR 34860, May 16, 2002).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2002 TAC for northern rockfish in the Western Regulatory Area will be reached before the end of the fishing season or year. Therefore, the Regional Administrator is establishing a directed fishing allowance of 550 mt, and is setting aside the remaining 50 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will soon be reached. Consequently, NMFS is prohibiting directed fishing for northern rockfish in the Western Regulatory Area of the GOA.

Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is contrary to the public interest. This requirement is contrary to the public interest as it would delay the closure of the fishery, lead to exceeding the TAC, and therefore reduce the public's ability to use and enjoy the fishery resource.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.