On November 28, 2001, Congress passed section 115 of the Department of Justice Appropriations Act of 2002 (Title I of Pub. L. 107-77), which authorized the Attorney General to impose by regulation requirements for submitting electronic arrival and departure lists or manifests by any public or private carrier transporting persons to and from the United States. Prior to the passage of section 115 of Public Law 107-77, section 231 of the Act did not explicitly address the electronic submission of such information. On May 14, 2002, section 115 of Public Law 107-77 was superseded when Congress enacted section 402 of the Enhanced Border Security and Visa Entry Reform Act of 2002 (Pub. L. 107-173).

Section 402 of Public law 107-173 amended section 231 of the Act by requiring that commercial carriers transporting passengers to or from the United States deliver arrival and departure manifest information electronically to the Service, beginning no later than January 1, 2003. The carrier must submit an arrival manifest prior to the commercial vessel or aircraft's arrival at a port-of-entry in the United States. In addition, with certain exceptions, carriers must provide departure manifest information before the departure of a commercial vessel or aircraft from the United States.

Section 231(c) of the Act, as amended by section 402, provides specific elements that must be included in arrival and departure manifests. Section 402 also eliminated prior statutory exemptions from the manifest requirements of section 231 of the Act previously applicable to alien crewmembers and persons arriving from or departing to foreign contiguous territory by air.

Finally, section 402 raised the penalty for failure to comply with manifest requirements to $1,000 per violation. Under section 231(f) of the Act, as amended, the Service may impose a fine on a carrier for each person for whom an accurate and full manifest is not submitted.

Arrival and departure manifests are currently submitted as follows: in the form of a separate Form I-94, Arrival-Departure Record, or as a Form I-94W, Nonimmigrant Visa Waiver Arrival-Departure Record, or as a Form I-94T, Arrival-Departure Record (Transit Without Visa) (collectively Form I-94) for each passenger not exempt from the manifest requirements. The Form I-94 is a perforated numbered card and is composed of an arrival portion collected by the Service at the time of arrival and a departure portion that is returned to the alien passenger. Upon departure, the reverse-side of the departure portion must be completed by the departure carrier at the time of the alien's departure and submitted to the Service at the port-of-departure. In accordance with 8 CFR 231.2, the outbound carrier currently has 48 hours to submit the departure Form I-94 to the Service. The Service enters Form I-94 data into the Nonimmigrant Information System (NIIS), thus recording the alien's arrival and departure into and out of the United States.

Service regulations at 8 CFR part 231 currently provide that manifests in the form of a Form I-94 do not have to be submitted for the following passengers: United States citizens, lawful permanent resident aliens of the United States, immigrants to the United States, and certain in-transit passengers. Service regulations also exempt the manifest requirements for aircraft and vessels arriving in the United States directly from Canada, or departing to Canada. Vessels or aircraft arriving in the U.S. Virgin Islands directly from the British Virgin Islands, or departing the U.S. Virgin Islands directly to the British Virgin Islands, are similarly exempt from the manifest requirements.

Currently, crew arrival and departure manifest requirements are governed solely by section 251 of the Act and Service regulations at 8 CFR part 251. Arrival and departure manifests for vessels may be submitted on Form I-418, Passenger List-Crew List, while aircraft may satisfy this requirement by submission of a United States Customs Service Form 7507 or on the International Civil Aviation Organization's General Declaration. Pursuant to section 251(d) of the Act, the Service may impose a fine of $220 (as adjusted for inflation) for each crewmember for whom an accurate and full manifest is not submitted

Prior to the enactment of section 115 of the Department of Justice Appropriations Act of 2002, and later, section 402 of the Enhanced Border Security and Visa Entry Reform Act of 2002, the scope of section 231 of the Act was limited to alien and U.S. citizen passengers. Section 231 of the Act, as amended by section 402, no longer contains such restrictions. Section 402 authorizes the collection of information not only on passengers being transported to or from the United States on commercial aircraft or vessels but on crewmembers and other occupants transported on such conveyances. Accordingly, the Service is using its authority under section 231 of the Act, as amended, to require electronic arrival and departure manifest information on crewmembers of commercial aircraft or vessels that are transporting passengers to or from the United States.

Yes. This rule proposes to require that electronically transmitted arrival and departure manifests be submitted for all passengers and crewmembers transported on commercial aircraft or vessels, including passengers who are United States citizens, Canadian citizens, lawful permanent resident aliens of the United States, immigrants to the United States, in-transit passengers, and persons on vessels or aircraft arriving in the United States directly from Canada or departing the United States directly to Canada as well as persons arriving in the U.S. Virgin Islands directly from the British Virgin Islands or departing the U.S. Virgin Islands directly to the British Virgin Islands.

The APIS is a system where commercial air carriers collect and submit biographical data from a passport, visa or other travel document at a foreign port and transmit this information electronically to the Service and the United States Customs Service (USCS) in advance of the commercial aircraft's arrival in the United States. The Service began implementing APIS in conjunction with the USCS in 1989 as an effort to meet airport inspection challenges which included increased passenger volumes, especially during peak hours and seasons, combined with staffing and facilities limitations.

A Memorandum of Understanding (MOU) governs the administration of the APIS program and is a formal agreement between the three U.S. Federal Inspection Services (FIS) agencies (USCS, the Service, and the U.S. Department of Agriculture, Animal and Plant Health Inspection Service (USDA-APHIS)) and participating air carriers. The APIS MOU specifies national performance standards for all parties. Under this MOU, the airlines agreed to send advance passenger information to the Government agencies and in return, the FIS agencies agreed to expedite the processing of APIS flights. Pursuant to the MOU, as carriers provided additional and more accurate passenger information, the FIS agencies would improve their processing times.

Currently, over 140 carriers are signatories to the APIS MOU, and two Governments (Australia and New Zealand) electronically transmit APIS data to the USCS Data Center in Newington, Virginia. Once this rule becomes effective, the need for this MOU will be superceded.

Prior to the enactment of section 115 of the Aviation and Transportation Security Act, Public Law 107-71, 115 Stat. 597 (2001), the electronic transmission of such manifest data was voluntary.

Section 231(c) of the Act, as amended, provides that the following information must be provided for each person listed on a manifest required to be submitted in accordance with section 231 (a) or (b): Complete name; date of birth; citizenship; sex; passport number and country of issuance; country of residence; United States visa number, date, and place of visa issuance, where applicable; alien registration number, where applicable; United States address while in the United States; and such other information as the Attorney General, in consultation with the Secretaries of State and the Treasury, determines is necessary for the identification of the persons transported, for the enforcement of the immigration laws, and to protect public safety and national security.

Under some circumstances, however, not all of this information must be submitted. For example, a passport number and visa information may be omitted in the event a Canadian national is exempt from the passport and visa requirement under 8 CFR 212.1. The visa information may be omitted in the event a passenger under the Visa Waiver Program is exempt from the visa requirement under 8 CFR part 217. A passport number and visa information may be omitted in the event a U.S. citizen is exempt from the passport and visa requirement under 22 CFR part 53. All of the other data elements, however, will be required. The Service will notify the carrier industry of any policy or operational issues that affect the APIS program.

As noted previously, section 231(c) of the Act, as amended by the Enhanced Border Security and Visa Entry Reform Act of 2002 (Pub. L. 107-173), prescribes specific information that must be included in arrival and departure manifests. The current data elements transmitted via APIS do not contain all of the elements that are statutorily required by section 231(c) of the Act, as amended.

The proposed rule includes the following statutorily-mandated manifest information that is not currently collected under the APIS system:

(1) Place of visa issuance;

(2) The United States address while in the United States; and

(3) The country of residence.

It is important to note, however, that all items listed above are currently required on the paper Form I-94, which has legally sufficed for this arrival manifest. This rule proposes to amend only the format and time frame by which this information must be provided. The proposed rule requires that this information be submitted by the air and sea carriers to the Service via the USCS APIS system.

The Electronic Data Interchange for Administration, Commerce, and Trade (EDIFACT) is the technical message format that allows for the transmission of the APIS data elements to the U.S. government in a standardized way. There are two EDIFACT versions, (1) The United States EDIFACT format (US EDIFACT); and (2) the United Nations EDIFACT (UN EDIFACT) format. The USCS developed the US EDIFACT message format between 1989 and 1992 in cooperation with the governments of Australia and New Zealand during the initial implementation of the Advance Passenger Information System. The US EDIFACT standard is being used to transmit the current APIS information. The following US EDIFACT technical documentation and guidelines are available from the USCS: (1) Advanced Passenger Information for Airlines; (2) Advance Passenger Information (API) Guidelines for Customs and Air Carriers, and (3) US EDIFACT Overview. Carriers currently transmit APIS information using the US EDIFACT format. The amount of information that can be transmitted through the APIS system, via the US EDIFACT for now is limited. This format cannot accommodate the new data elements such as US address, visa number, date, and place of issuance, and country of issuance that are required by section 402 of Public Law 107-173. Given these limitations in the US EDIFACT format, the Service anticipates the carriers will convert their reservation or computer systems to the UN EDIFACT format which can accommodate the required additional data elements. Additional information on UN EDIFACT can be located at the following Web site: http://www.unece.org/trade/untdid/welcome.htm.

Converting to the UN EDIFACT format will improve the accuracy and efficiency of data, and comply with the new additional data element requirements. The USCS expects to upgrade the APIS system to accept the UN EDIFACT format in January 2003. The USCS will provide UN EDIFACT documentation and guidelines in the near future.

The Air Transport Association (ATA), International Air Transport Association (IATA), and the governments of Canada, Mexico, New Zealand, Australia, and United Kingdom all support the conversion to APIS UN EDIFACT format in an effort to establish a worldwide format standard for the electronic transmission of arrival and departure manifests.

In 2003, the Service anticipates the carriers will convert their systems from the US EDIFACT format to the UN EDIFACT format to facilitate their transmission of the new data element requirements. Until carriers convert their systems to the UN EDIFACT format, the APIS system will be able to accommodate both the US EDIFACT and the UN EDIFACT format transmissions. This conversion is not expected to affect small entities since the USCS is developing a Web-based APIS UN EDIFACT system, that is expected to be complete in April 2003.

No. The Service will not impose any fines until the regulation is published as a final rule. The Service may impose fines under section 231 of the Act in cases where the carrier fails to transmit an electronic record after the final rule becomes effective. However, before issuing any fines during the conversion period (from the effective date of the final rule through December 31, 2003), the Service will evaluate a carrier's performance to determine whether it has made a good faith effort to comply with the electronic transmission requirement. The Service will consider the following factors: (1) Whether the carrier notified the Service of any problems it was experiencing in submitting the information; (2) whether the carrier has a backorder for the purchase of additional equipment, such as document readers; (3) the completion of the APIS UN EDIFACT format by the Service and the USCS; and (4) the totality of circumstances of each carrier's attempt to comply with this regulation. The Service has the authority to mitigate or remit fines under 8 CFR 280.5.

The Service will continue to accept the current APIS arrival and departure data elements in the US EDIFACT format until carriers can convert to the UN EDIFACT format, through at least the end of 2003. The Service will require that the carriers notify the Service of when they will be able to comply with the UN EDIFACT format.

Yes. The Attorney General, in consultation with the Secretaries of State and the Treasury, may also require additional manifest information if the information is deemed necessary for the identification of the persons transported and for the enforcement of the immigration laws and to protect safety and national security. Pursuant to that authority, the proposed rule prescribes adding a Passenger Name Record (PNR) locator or a unique identifier or reservation number. The PNR locator is a unique passenger identifier that is specific to the airline industry in their reservation systems. This does not require carriers to create new identifying systems. In any database system a unique identifier is not difficult to create. This identifier is very important to the Service because this will assist the Service in matching an arrival record with a departure record. The Service is particularly interested in comments by the carrier industry to the proposal that carriers submit the PNR locator number or unique identifier electronically as part of the manifest requirement.

The Service has consulted with the USCS, the U.S. Coast Guard (USCG), and the U.S. Department of State on this proposed additional data element.

This rule proposes to require commercial carriers transporting any person by air to any port within the United States from any place outside the United States to submit electronic arrival passenger manifests to the Service no later than 15 minutes after the flight departs from the last foreign port or place. This will allow the Service to check the manifest information against appropriate security databases prior to arrival. This rule further proposes that air carriers be required to submit the arrival crew manifest electronically to the Service in advance of departure from the last foreign port or place. This is the current transmission requirement for air carriers submitting electronic arrival information under the APIS program, and this requirement will also conform to the USCS' rule published at 66 FR 67482 (December 31, 2001).

In consultation with the USCG and the cargo and cruise line industry, the Service proposes to require that a vessel on a voyage of: (1) 96 hours or more must submit the information required in the crewmember and passenger manifests at least 96 hours before entering the port or place of destination; (2) less than 96 hours but not less than 24 hours must submit the crewmember and passenger manifests not less than 24 hours before entering the port or place of destination; or (3) less than 24 hours must submit the crewmember and passenger manifests prior to departing the port or place of departure. These requirements will conform to 33 CFR 160.207(a) in the USCG's Notice of Proposed Rule Making (NPRM) published at 67 FR 41659 (June 19, 2002). These timeframes will provide the Service and USCG with adequate time to review the electronic arrival manifests for arriving vessels. In addition, these requirements are more in accord with commercial maritime operations, which differ greatly from those of the airline industry. This alignment of submission time requirements will facilitate the Government's ongoing efforts to develop a system that eliminates multiple transmissions of manifest information to both the Service and the USCG.

The proposed rule requires that carriers transporting persons to points outside of the United States submit electronic departure passenger and crewmember data lists or manifests to the Service no later than 15 minutes before the flight or vessel has departed from the United States. This will allow the Service to check the manifest information against the appropriate security databases prior to departure. If additional passengers or crewmembers board after the original manifest has been submitted, or if passengers or crewmembers exit after boarding but prior to departure, carriers will also be required to submit amended or updated passenger and crewmember manifest information electronically to the Service no later than 15 minutes after the flight or vessel has departed from the United States. This will allow the Service to continue to check any new information against the appropriate security databases. Although the number of last minute passengers will vary, the Service believes that carriers will be able to provide electronic departure passenger and crewmember data lists or manifests on approximately 80 to 95 percent of their total number of passengers when submitting the required information 15 minutes prior to departure. Failure to submit an amended manifest 15 minutes after departure, if necessary, may result in a fine.

For purposes of determining the time of departure for purposes of submitting electronic manifest information under this rule, the Service will use the same definitions already used by other agencies. For air carriers, the time of departure is the point at which the wheels are up on the aircraft and the aircraft is directly en route to or from the United States. For vessels, the time of departure is that time when the vessel gets under way on its outward voyage and proceeds on the voyage without, thereafter, coming to rest in the harbor from which it is going. See 19 CFR chapter I, part 4 (August 30, 2002).

Yes. Section 217 of the Act, relating to the Visa Waiver Program, contains similar requirements for the electronic submission of arrival and departure information pertaining to visa waiver program passengers. This rule proposes to amend 8 CFR part 217 to provide that an alien who applies for admission under the provisions of section 217 of the Act after arriving via sea or air at a port-of-entry, will not be admitted under the Visa Waiver Program unless the carrier transporting such an alien electronically transmits passenger arrival and departure data in accordance with 8 CFR 231.1, for each Visa Waiver Program passenger being transported.

In accordance with section 402 of Public Law 107-173, not later than January 1, 2003, the master or commanding officer, or authorized agent, owner, or consignee of a commercial aircraft or vessel to transmit electronically arrival and departure manifests to the Service for each passenger not currently exempt from the manifest requirements pursuant to 8 CFR 231.1, or 231.2. These manifests must contain the data elements specified in section 231(c) of the Act as amended, for each passenger listed on the manifest. In accordance with section 231(a) of the Act, arrival manifests must be electronically submitted to the Service prior to the arrival of the commercial aircraft or vessel. In addition, carriers may electronically submit departure data up to 48 hours after departure, exclusive of Saturdays, Sundays and legal holidays in accordance with 8 CFR 231.2

Until a final regulation is published, however, the Service will not require the electronic transmission of arrival or departure manifests for crewmembers because the submission of manifests containing crewmember information was not contemplated by the current regulations promulgated under section 231 of the Act.

As of January 1, 2003, carriers will no longer be required to submit Forms I-94 to the Service for the passengers they transport to or from the United States if they are electronically submitting arrival and departure manifests that include all of the data elements mandated by Section 231(c) of the Act. The carriers in full compliance with their obligations to transmit the prescribed manifest information electronically should still distribute Forms I-94 to their passengers who will be responsible for completing and submitting the Form I-94 to the Service to facilitate the inspections process. The Service will then compare and analyze the accuracy and efficiency of matching the electronic arrival and departure information with the paper arrival and departure information. In addition, not all travelers enter and exit the United States at the same location. A traveler may enter the United States at an air port-of-entry and leave at a land border port-of-entry. In this scenario, the Service will not be able to match the record of arrival with the record of departure electronically. A traveler who enters the United States via the air or sea port-of-entry may exit at a land border port-of-entry; therefore, this traveler will need a copy of the Form I-94. The traveler is required to return the departure Form I-94 at the land border port-of-entry; otherwise the Service would not know that they had exited the United States.

Until those provisions of the Service's regulations in 8 CFR part 251 requiring the submission of crew manifests in paper format are rescinded, commercial air and sea carriers transporting passengers to or from the United States shall continue to submit the Form I-418. Carriers also should continue to submit USCS Form 7507 and/or the International Civil Aviation Organization's (ICOA) General Declaration, as appropriate. Any determinations to eliminate these forms will be made by the proper agency.

The Service is requiring both an electronic and paper format to compare and analyze the accuracy and completeness of the electronic passenger manifest with the current paper process. The Service will randomly select data from the paper I-94 input manually into the Non-Immigrant Information System (NIIS) and compare that data to the same record that was input electronically and received from the airlines. The Service will compare the accuracy, time of availability of the data, and completeness of the data. If the data received through the electronic manifest is superior to that of the manually input data, then a policy decision will be made as to whether or not to continue the use of the paper Form I-94 as a manifest.

In addition, the paper Form I-418 is currently used when vessels arrive in the United States and continue coastwise to other ports within the United States (for example, from Baltimore, Maryland to Newark, New Jersey to Boston, Massachusetts). The paper Form I-418 is still required because the Service and USCS have not developed an APIS-like system for carriers that continue coastwise to other ports within the United States. Therefore, an electronic manifest is required when a commercial carrier arrives in and departs from the United States, but an electronic manifest is not required when vessels are traveling between the ports-of-entry in the United States. The Service currently is assessing the continued value of the paper Form I-418. Carriers, however, will have to continue to submit this form, when required under 8 CFR 251.1(a), until such time that the technical infrastructure is in place between ports-of-entry.

Yes. Section 231(g) of the Act, as amended, provides that if any public or private carrier, or the agent of any transportation line, has refused or failed to provide manifest information as required, or the manifest information provided is not accurate and full, such carrier, or agent shall pay the Commissioner the sum of $1,000 for each person with respect to whom accurate and full manifest information is not provided, or with respect to whom the manifest information is not prepared as prescribed. Fines for violations of section 231 and 251 of the Act may be imposed and collected in accordance with 8 CFR part 280. However, the Service, as a matter of discretion, does not intend to impose fines against carriers for violations of section 231 of the Act until a final regulation is published.

No. This proposed rule adds a definition of the term “ferry” based on the existing USCG maritime safety regulations at 46 CFR 70.10-15. The determination of whether a particular service is “ferry” service is a case-by-case determination in which, should the question arise, the Service will refer to the USCG classification of the vessel or vessels providing the service.

The Service will also refer to other relevant definitions from the USCG regulations that are applicable to the definition of “ferry.” In particular, the USCG regulations define “coastwise” service as navigation in the ocean or Gulf of Mexico 20 nautical miles or less offshore (46 CFR 70.10-13), and “ocean” service as navigation in the ocean or the Gulf of Mexico more than 20 nautical miles offshore (46 CFR 70.10-31). Vessels in ocean or coastwise service are not ferries and, therefore, the Service proposes that sea carriers must submit electronic arrival and departure manifests for those vessels. This includes all vessels that travel between the United States and foreign adjacent islands.

However, otherwise qualifying services in “lakes, bays, and sounds” such as Puget Sound or the Great Lakes will be considered ferries (see 46 CFR 70.10-23) and therefore are not required to submit electronic arrival and departure manifests.

In order to qualify as a ferry, a vessel's service must be over the most direct water route and only make provisions for deck passengers and vehicles. The Service is aware that some vessels may offer extended dining services, even overnight accommodations or gambling, that are commonly associated with the operation of a cruise ship rather than a ferry. The Service will not extend this exemption to such vessels.

The Service drafted this rule in consideration of the need to minimize its impact on small businesses. Based upon preliminary information available, the Service is unable to state with certainty that this rule, if promulgated, will not have the effect on small businesses of the type described at 5 U.S.C. 605. Accordingly, the Service has prepared the following Regulatory Flexibility Act (RFA) analysis in accordance with 5 U.S.C. 603.

This proposed rule will implement section 231 of the Act as amended by section 402 of Public Law 107-73. Section 231 of the Act provides, among other things, that commercial vessels or aircraft transporting passengers to and from the United States must electronically transmit to the appropriate immigration officer not later than January 1, 2003, arrival and departure manifests containing such information and delivered in such a manner and timeframe as may be prescribed in accordance with section 231.

The enactment of section 402 of Public Law 107-173 reflects Congress' desire to ensure that commercial air and sea carriers submit to immigration officials passenger and crewmember information within a timeframe and in a particular format in order to maximize the Government's efforts to (1) identify persons being transported to and from the United States, (2) enforce the immigration laws, and (3) protect public safety and national security.

A “small business” is defined by the RFA to be the same as a “small business concern” under the Small Business Act (SBA), 15 U.S.C. 632. Under the SBA, a “small business concern” is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) meets any additional criteria established by the SBA. It will be the duty of the appropriate officer of any commercial aircraft or vessel regardless of ownership, size or dominance in the field to provide the information prescribed in the proposed rule in the timeframe and format proposed therein.

Based upon the information available to the Service, there appear to be two distinct groups of businesses that will be affected by this proposed rule: (1) Larger commercial air and sea carriers, and (2) smaller commercial air and sea carriers ( e.g., air carriers that employ not more than 1,500 employees and sea carriers that employ not more than 500 employees) as defined by the United States Small Business Administration.

The Service estimates that there are approximately 108 large commercial carriers. Data provided by the United States Small Business Administration suggests that at least 446 small carriers will be affected by this rule. In addition, data provided by the USCG suggests that as many as 14,000 small commercial carriers potentially could be affected. Although the Service consulted with a number of the affected entities, including ATA, IATA, and the International Council of Cruise Lines (ICCL), the Service realizes that not all interested persons and entities may have been fully represented prior to the publication of this proposal. Therefore, the Service is requesting that comments be submitted to help ensure that the concerns of all interested parties are considered. Commenters may wish to identify the type of industry; including the number of companies/individuals involved and the annual income conducted; how the proposed regulatory requirements would impact that industry; and any suggestions on how the final regulations might be better tailored to the industry without compromising the intent of the statute which is to enhance national security, public safety, and the enforcement of the immigration laws through timely identification of persons being transported to and from the United States.

Commenters should note that the submission of any comments or information on these or other matters addressed by this proposed rule is entirely voluntary and the Service is not prescribing the use of any form for this information.

Pursuant to the RFA and public policy concerns, the Service encourages all affected entities to provide specific estimates, wherever possible, of the economic costs that this rule will impose and the benefits that it will bring. The Service asks affected small businesses to estimate what these regulations will cost as a percentage of their total revenues, to enable the Service to ensure that small businesses are not unduly burdened.

The Service has drafted this proposed rule to ensure the minimum possible impact on these businesses while complying with the statutory requirements. To ensure flexibility, the regulation does not mandate a specific electronic data interchange system that must be used. The regulation provides only that the transportation provider use a system that is approved by the Service.

The carriers must contact the USCS for additional technical information. The USCS and Service have APIS account managers to work with the carriers at the San Francisco, California, Houston, Texas, and Newark, New Jersey ports-of-entry. The APIS account managers have informed and notified the carriers of the new requirements, and will respond to any APIS issues, and act as a liaison between the carriers and the Service/USCS Headquarters. The USCS also provides APIS guidelines and documentation for the air carriers' technical staff. The USCS is currently updating a guideline for the sea carriers.

The Service and USCS have been working with the carrier industry for the past 10 years developing, implementing, and improving the arrival APIS information. The Service does not know how many systems are incompatible with APIS. However, EDIFACT is an international standard with which most carriers will be able to comply. For carriers that cannot comply with this requirement, alternatives are available. The Service believes that the EDIFACT system is flexible because it is an international standard with which all carriers and other governments can comply.

Because the information must be transmitted via the USCS Data Center, it is anticipated that carriers will transmit this data via the EDIFACT message format that was developed by the USCS in connection with the initial implementation of the APIS. The USCS has specified the data elements and codes to be used. The Service and USCS are currently working with the World Customs Organizations (WCO) to inform, update, and develop international electronic arrival and departure manifest standards for all carriers. The USCS is currently in the process of converting from the US EDIFACT message format to the UN EDIFACT format.

Moreover, commercial air carriers operating passenger flights have been required to electronically submit many of the data elements prescribed in the proposed rule to the USCS in advance of arrival since December 21, 2001. Other data elements in this proposed rule are statutorily mandated and, in accordance with statute, must be provided both upon arrival and departure. The Service and USCS have consulted with ATA, IATA, and ICCL on the current and additional data elements for the arrival and departure manifests. Where the proposed rule requires data elements that are not mandated by statute, the opinions of the industry representatives were taken into consideration so as to impose no greater burden than is necessary.

The requirement in this proposed rule that carriers submit specific manifest information electronically may require large commercial carriers to purchase equipment or develop integrated systems for that purpose. As discussed below in the section on Executive Order 12866, the Service estimates that larger commercial carriers may incur programming costs of $400,000 to implement these requirements, with an ongoing operational cost of $1 per passenger.

In addition to large commercial carriers, the Service believes that there may be a large number of smaller commercial aircraft and vessel operators that will be affected by the proposed rule. The Service does not have specific information about how much of an economic impact this rule might have on smaller commercial carriers. According to the United States Small Business Administration, there are 383 scheduled air passenger transportation companies with less than 1,500 employees and 63 deep sea passenger transportation companies with less than 500 employees. The information provided by the United States Small Business Administration suggests that these 446 companies have average annual receipts of approximately $16 million. The Service believes that this rule will have a proportionally smaller economic impact upon smaller rather than larger carriers because of the volume of passengers they carry. In addition, smaller commercial carriers should not have to incur substantial initial programming costs. As discussed in the Executive Order 12866 section below, the Service estimates that the average reprogramming costs are approximately $400,000 per carrier for large carriers. A comparable conversion for a small carrier would be much less. Some vendors currently are providing equipment and software utilizing the US EDIFACT standard for small commercial carriers in the range of $6,800 to $7,200 per machine. One vendor has estimated that his conversion costs would be approximately $1,200 for his customers. This equipment automates much of the data submission process and performs functions comparable to equipment used by large commercial carriers, albeit on a much smaller scale. The Service estimates that new equipment and software that utilizes the UN EDIFACT standard should cost approximately as much as the current equipment and software.

The USCS also has an e-mail system that allows small entities to submit arrival and departure data electronically. In addition, the USCS is in the process of developing a Web-based APIS specifically for small entities, with an estimated completion date in April 2003. For either system, all that is required is a computer, e-mail, or access to the internet by the small entities to transmit the electronic arrival and departure manifests. This cost is minimal to the small entities. Indeed, the Service believes that most small carriers already will possess the necessary equipment and will not have to incur any additional costs. A carrier that decided to purchase a new personal computer should be able to do so for under $1,000. Access to the internet is estimated to cost approximately $20 per month.

While small entities will be required to submit new additional data (such as the United States address while in the United States, visa number, and place of issuance, where applicable, and country of residence), the collection of this information should not impose a significant burden on small entities. Therefore, the economic impact on small entities by this rule will be minimal.

The ongoing costs to small carriers of submitting this information to the Service is difficult for the Service to quantify. The Service believes that the number of passengers that small commercial carriers transport in a given year may vary greatly. The IATA, however, estimates this rule will cost large commercial carriers approximately $1 per transaction per passenger for additional time costs. The Service believes that this estimate also may be applicable to small commercial carriers.

The Service is requesting comment on the impact that this proposed rule would have on small commercial carriers. The Service is particularly interested in comments concerning the number of these smaller entities transporting passengers, the number of passengers they transport each year, the ongoing costs this rule would impose (including any incremental cost per passenger), and their estimates on the economic impact of this rule.

The purpose of this rule is to implement an ongoing reporting requirement for carriers. All small entities that transport passengers and crew to any seaport or airport of the United States from outside the United States will be required to comply with the arrival and departure manifest requirements. The submission of the required data elements will not require any unusual professional skills. The data that must be collected are basic and its submission should not be difficult. For purposes of complying with its Paperwork Reduction Act, the Service has estimated that 600 respondents will spend approximately 10 minutes a day in order to provide the required data. The Service based its estimate of 10 minutes on its experience in connection with the transmission of data elements under the Visa Waiver Program. See 67 FR 63246 (October 11, 2002).

This proposed rule does not duplicate, overlap, or conflict with other federal regulations. The rule was drafted after consultation with the USCS and the USCG and designed to work in coordination with their regulations. The Service, USCG, and USCS are currently coordinating their efforts to develop an electronic arrival and departure manifest system that meets the requirements of all three agencies. Submitting APIS meets the requirements of both the Service and USCS. The marine industry will have to continue to forward a separate Notice of Arrival (NOA) submission to the USCG, until such time that the technical infrastructure is in place to ensure that the USCG can obtain electronic data from APIS and import this data into a Coast Guard database.

As discussed above, the Service will require the continued submission of the paper Form I-94 in order to compare and analyze the accuracy and completeness of the electronic passenger manifest with the current paper process. The paper Form I-418 also is still required because the Service and USCS have not developed an APIS-like system for carriers that continue coastwise to other ports within the United States.

The Service has little discretion regarding the scope of this rule and its impact on small entities because of explicit requirements in section 402 of Public Law 107-173. While consulting with ATA, IATA, and ICCL, a number of issues were raised concerning the impact on passenger check-in times resulting from the collection of the data required by this proposed rule. These requirements are, with only one exception (PNR locator or unique number), statutorily required. The Service considered the need for the inclusion of the PNR, and determined that it was necessary to simplify the data submission process. The use of an unique identifier is a standard data processing tool and is extremely useful both to the Service and to commercial carriers. Its elimination would only serve to make the submission and tracking of manifests more difficult.

The Service also considered different electronic data submission requirements. The Service could not continue with the US EDIFACT standard because it will not support the data elements called for by section 402 of Public Law 107-173. The UN EDIFACT standard was selected because it will be the dominant standard throughout the world and its use will simplify the data submission process for commercial carriers. The use of another standard would only serve to balkanize the data submission process.

The Service, however, has decided to allow commercial carriers to utilize alternative methods for the electronic submission of the manifests, as long as they are approved by the Service. For example, small carriers may use a USCS e-mail system. In addition, the USCS also is in the process of developing a Web-based APIS specifically for small entities which can be used for data submission when it is available. The purpose of these options is to reduce the possible economic impact the manifest reporting requirements will have on small commercial carriers. The use of these alternatives will benefit small commercial carriers who may not have access to the resources available to large carriers. The Web-based APIS and e-mail options eliminate the need for small commercial carriers to adopt data submission processes similar to those utilized by large commercial carriers.

Large commercial carriers also may utilize these options, but because of the volume of passengers whose arrival and departure data they may be submitting, the Service does not anticipate that these options will be used frequently by large carriers. The Service continues to entertain carrier proposals for pilot projects involving the collection of the required information electronically.

The Service believes that, given the statutory mandate in section 231 of the Act requiring that manifests containing certain prescribed data elements be electronically transmitted to the Service no later than January 1, 2003, this proposed rule meets the stated objectives while reducing as much as possible the burden imposed on affected transportation providers. The Service consulted with the air and sea carrier industries in developing this rule. The Service took into account their concerns in drafting the proposed rule. The Service intends to maintain an on-going dialogue with the affected industries.

The Service welcomes comments on its analysis under the RFA.

This rule may result in approximately $124 million in operational costs and one-time programming costs of approximately $42 million on the private sector. Therefore, under the Unfunded Mandates Reform Act of 1995, this is a private sector mandate. Accordingly, the Service has conducted a cost/benefit assessment which is set forth in the Executive Order 12866 section below. This discussion assesses the costs and benefits resulting from the implementation of section 402 of the Enhanced Border Security and Visa Entry Reform Act of 2002 (Pub. L. 107-173). This rule, however, will not result in the expenditure by state, local and tribal governments, in the aggregate, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. The Service is requesting that comments be submitted to help ensure that the concerns of all interested parties are considered.

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

This rule is considered by the Department of Justice, Immigration and Naturalization Service, to be an economically significant regulatory action under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this regulation has been submitted to the Office of Management and Budget for review.

Carriers currently submit arrival and departure manifests electronically to APIS. In accordance with section 402 of Public Law 107-173, this proposed rule also requires carriers to transmit additional data elements ( e.g., U.S. address, visa information, PNR locator). These additional data elements are not currently included in the APIS data being transmitted and carriers would have to incur some costs adapting their systems to include these elements.

However, many of the carriers with which the Service consulted, informed the Service that they have decided not to add the additional data elements to their APIS submissions. Rather, carriers plan on converting their systems from the US EDIFACT format to the UN EDIFACT format.

Carriers are making this change in data format for their own business reasons because it is the format being adopted in several foreign countries, such as Canada, Mexico, Australia, New Zealand, and United Kingdom. The Service wants to emphasize that neither section 231 of the Act nor this proposed rule require carriers to convert to the UN format. This movement to the UN format was based upon international agreements between the Immigration and Customs Services of several countries and is an international standard adopted by the IATA and ATA.

The conversion in EDIFACT data formats which the carriers are undertaking on their own initiative makes it difficult for them to provide the Service with the actual costs to them resulting from the new additional data elements required by the statute and this proposed rule. The estimated cost range has been from thousands of dollars for the smaller carriers with a low volume of passengers to several million dollars for a larger carriers with a high volume number of passengers. The high-end estimates include the conversion of the US/UN EDIFACT reprogramming costs to the carrier's existing reservation systems and the hiring of additional personnel.

Carriers have informed the Service regarding the cost of new equipment they will be purchasing on their own initiative as part of their conversion to the UN EDIFACT format. Since the additional data elements this rule requires carriers to collect are not, at present, machine-readable, the Service has not included new equipment costs in its estimates below. The reprogramming costs below include both the cost of changing from the US to the UN EDIFACT format (which is not required by this rule) and the costs of processing the new data elements required by this rule, but the estimates below are the best that the carriers have been able to provide the Service regarding their non-equipment related costs of complying with this rule.

According to IATA, the average reprogramming costs are estimated at $400,000 per carrier. The total reprogramming costs are estimated at $36,800,000 (92 air carriers x $400,000).

The International Council of Cruiselines (ICCL) represents 16 passenger cruiselines. The estimated reprogramming costs reported by ICCL members is $2,000,000 (16 x $125,000).

The 108 carriers represented by IATA and ICCL account for the vast majority (75-80 percent) of passengers covered by this rule. Therefore, the Service has estimated that the remaining 20 percent of the passengers transported by other carriers at a cost of $7,760,000 ($38,800,000 × 20 percent). The Service then estimated that these other carrier (non-IATA and ICCL carriers) costs at approximately 35 percent of the IATA and ICCL carrier costs. Since, the USCS already provides an e-mail APIS account and will be developing a Web-Base APIS system for the small entities, the Service estimates that the reprogramming costs for the small and medium size entities will be much lower than the IATA and ICCL carrier costs. Therefore, the other carriers estimated reprogramming costs are calculated at $2,716,000 ($7,760,000 × 35 percent).

The IATA estimates this rule will cost carriers approximately $1 per transaction per passenger for additional time costs. The IATA has estimated that this will amount to approximately $62 million for the inbound and the same for outbound with total estimated annual costs at $124 million.

However, the Service believes that some of these processing costs can be deferred or reduced by travelers providing these additional data elements to the travel agencies, Web-based/Internet or kiosk type reservations systems, thereby reducing the check-in time.

USCS regulations already require all air carriers to submit arrival manifests electronically. In addition, Service regulations already require air and sea carriers to submit arrival and departure manifests electronically, for passengers traveling pursuant to the Visa Waiver Program. However, carriers have informed the Service that it is more efficient for them to transmit electronic manifest information for all (not just Visa Waiver Program) passengers. Over 80 percent of these carriers currently submit arrival and departure manifests electronically for all passengers. This fact suggests that the costs of this rule will not be great since a substantial majority of the carriers already provide most of the information this rule would require.

Advanced electronic manifest provide the Service with the ability to conduct advance record checks of passengers entering and departing the United States. This allows the Service to check and pre-screen the names of known inadmissible aliens, terrorists, and other dangerous criminals prior to entering the United States. With the recent improvements and enhancements to the APIS and other enforcement database(s), which can identify high-risk passengers for more intensive questioning upon arrival, the Service has been able to prevent an increase in the number of aliens attempting to enter the United States illegally.

APIS also allows the Service to check for removable aliens, terrorists, and other dangerous criminals prior to exiting the United States. With advance prescreening of passengers, the Service will be able to process low-risk travelers with minimum delay and concentrate on high-risk travelers who may pose a threat to national security. APIS allows immigration intelligence officers to analyze the patterns and associations of alien smugglers on a real-time basis.

The Service and the USCS are in the process of including the USCG's vessel crewmember manifest requirements into the APIS. Currently, the cargo industry must submit separate paper manifests, one to the Service and one to the USCG. The carrier associations have indicated that they prefer to transmit one manifest electronically that meets all of the requirements for the Service, USCS, and USCG, thereby reducing the need to submit three separate paper manifests. APIS is a joint effort supported by the Service, USCS, USCG, foreign governments, World Customs Organization (WCO), ATA, IATA, ICCL, and other intereste stakeholders.

The UN EDIFACT format will improve the transmission of the electronic arrival and departure data. Currently, all of the carriers cannot submit 100 percent of the required APIS data in the US EDIFACT format. In addition, passenger data elements sometimes get lost in the APIS transmission. The US EDIFACT does not allow the carrier to receive a confirmation message that the APIS transmission was submitted and received by the system (for example, if an e-mail message is sent, a receipt is sent back to the original sender to confirm that the e-mail was received and opened by the intended user). The potential exists that any lost records of a passenger will not be searched in the appropriate database(s), and the absence of such checks on a particular alien in advance of arrival could pose a threat to national security. In addition, each loss of records in the transmission will cause a delay in the inspection processing of passengers because the immigration inspector will have to manually enter each passenger's name in the database(s), process the information, and ask any additional immigration related questions. This delay may have an impact on the wait time of the other passengers waiting to be inspected at primary inspection for admission to the United States. These delays may cause some of the passengers to miss their connecting flights, thereby causing an additional expense to the carriers. Therefore, conversion to the UN EDIFACT is expected to greatly enhance and improve the transmission of the electronic arrival and departure manifests.

The Service welcomes comments on its assessment under Executive Order 12866.

This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

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

This rule requires that carriers provide arrival and departure manifests electronically to the Service. This requirement is considered an information collection requirement under the Paperwork Reduction Act.

Accordingly, the Service has submitted an information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

All comments and suggestions, or questions regarding additional information, to include obtaining a copy of the proposed information collection instrument with instructions, should be directed to the Immigration and Naturalization Service, Regulations and Forms Services Division, 425 I Street NW., Suite 4034, Washington, DC 20536; Attention: Richard A. Sloan, Director, (202) 514-3291.

We request written comments and suggestions from the public and affected agencies concerning the proposed collection of information. Any comments on the information collection must be submitted on or before March 4, 2003. Your comments should address one or more of the following four points:

(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the collection of the information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

Overview of this information collection:

(1) Type of information collection: New.

(2) Title of Form/Collection: Electronic arrival-departure manifests.

(3) Agency form number, if any, and the applicable component of the Department of Justice sponsoring the collection: No form number (File number OMB-32), Immigration and Naturalization Service.

(4) Affected public who will be asked or required to respond, as well as a brief abstract: Business or Individuals. Section 402 of the Enhanced Border Security and Visa Entry Reform Act requires arrival and departure manifests to be delivered electronically no later than January 1, 2003. The information collection is necessary to comply with section 402 and to ensure that the Service receives accurate passenger and crewmember arrival and departure information in a timely manner.

(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: 600 respondents at 10 minutes multiplied by 365 days.

(6) An estimate of the total of public burden (in hours) associated with the collection: Approximately 36,500 burden hours.

If additional information is required contact Richard A. Sloan, Director, (202) 514-3291.

Accordingly, chapter I of the title 8 of the Code of Federal Regulations is proposed to be amended as follows:

Comments Invited

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-142-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-142-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add an airworthiness directive (AD), applicable to certain Airbus Model A330 and A340 series airplanes, was published as a notice of proposed rulemaking (NPRM) in the Federal Register on October 4, 2001 (66 FR 50580). That NPRM would have required modification of the down drive brackets of the left- and right-hand sides of the inboard flap track 1 assembly and installation of bigger bolts and washers. That NPRM was prompted by a report that, for certain airplanes on which Airbus Modification 45326 has been accomplished, the strength of the connection bolts at the down drive bracket of the track 1 assembly on the inboard flap is not sufficient. Failure of the bolts due to flexural loads caused by transmission jam loading, if not corrected, could lead to a “flap-locked” condition, causing reduced controllability of the airplane.

Due consideration has been given to the comments received in response to the original NPRM.

One commenter requests that the original NPRM be revised to reference Airbus Service Bulletin A330-57-3067, Revision 02, dated February 2, 2002 (for Model A330 series airplanes), which increases hole tolerances, and corrects improper nut torque conversions. The commenter states that the existing tolerances in Revision 01 of the service bulletin are not obtainable when reaming the existing production fastener holes on an affected airplane.

The FAA partially agrees. Since issuance of the original NPRM, the Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, has issued French airworthiness directives 2002-368(B) (for Model A330 series airplanes), and 2002-369(B) (for Model A340 series airplanes); both dated August 7, 2002. These French airworthiness directives replace French airworthiness directives 2001-125(B) (for Model A330 series airplanes), and 2001-123(B) (for Model A340 series airplanes); both dated April 4, 2001; respectively (which were referenced in the original NPRM).

French airworthiness directive 2002-368(B) states that a conversion error with regard to applied torque values (metric units to U.S. Customary Units) specified in Airbus Service Bulletin A330-57-3067, dated October 12, 2000; and Revision 01, dated April 10, 2001; has been identified. This error might lead the operators using U.S. Customary Units to apply a torque value being less than those required, which could lead to a loose nut. Revision 02 of the service bulletin, dated February 2, 2002, takes into account the right torque values, but does not mention additional work that is necessary. The applicability of this French airworthiness directive has also been revised to include additional airplanes on which these improper procedures may have been done.

French airworthiness directive 2002-369(B) states that an identical conversion error with regard to applied torque values has also been identified in Airbus Service Bulletin A340-57-4075, dated October 12, 2000; and Revision 01, dated April 10, 2001. The applicability of that French airworthiness directive has also been revised to include additional airplanes on which these improper procedures may have been done.

Airbus has issued Service Bulletin A330-57-3067, Revision 03, dated August 7, 2002 (for Model A330 series airplanes); and Service Bulletin A340-57-4075, Revision 02, dated August 7, 2002 (for Model A340 series airplanes). These service bulletins describe procedures for, among other things, modifying the down drive brackets of the left- and right-hand inboard flap track 1 assembly; re-identifying the tracks; installing bigger bolts and washers to improve the strength of the connection at the down drive brackets; and testing the torque value of the nuts.

Accomplishment of the actions specified in the service bulletins is intended to adequately address the identified unsafe condition. The DGAC classified these service bulletins as mandatory in order to assure the continued airworthiness of these airplanes in France.

Therefore, we have revised this supplemental NPRM to reference these service bulletins as the appropriate sources of service information for accomplishing the proposed actions. We have also revised the applicability of the supplemental NPRM to include the additional airplanes listed in the French airworthiness directives.

Since these changes expands the scope of the originally proposed rule, we have determined that it is necessary to reopen the comment period to provide additional opportunity for public comment.

The FAA estimates that 9 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 13 work hours per airplane to accomplish the proposed modifications and installations, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $7,020, or $780 per airplane.

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

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

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

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

Comments Invited

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-99-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-99-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add an airworthiness directive (AD), applicable to certain McDonnell Douglas Model DC-10-10 and DC-10-10F airplanes; Model DC-10-15 airplanes; Model DC-10-30, DC-10-30F, and DC-10-30F (KC10A and KDC-10) airplanes; Model DC-10-40 and DC-10-40F airplanes; and Model MD-10-10F and MD-30F airplanes, was published as a notice of proposed rulemaking (NPRM) in the Federal Register on August 24, 2001 (66 FR 44562). That NPRM would have required an inspection of the throttle control module (TCM) on the center pedestal in the flight deck compartment to determine its part number and configuration, and modification of the TCM. Those actions are necessary to prevent chafing of wiring inside the TCM, fuel shutoff lever lights, and/or aft pedestal lightplates due to degradation of protective sleeving, which could result in electrical arcing and failure of the auto throttle/speed control system and consequent smoke and/or fire in the cockpit.

Since the issuance of that NPRM, the FAA has reviewed and approved Boeing Alert Service Bulletin (ASB) DC10-76A049, including Appendix and Evaluation Form, all dated January 29, 2002. That ASB describes procedures for repetitive visual inspections for chafing or potential chafing of wiring of the TCM module located on the center pedestal in the flight compartment. That ASB also describes procedures for repairing or repositioning electrical wiring, as applicable, if necessary.

In addition, the FAA has reviewed and approved Boeing ASB DC10-76A048, Revision 01, dated January 29, 2002, including Evaluation Form. (Boeing ASB DC10-76A048, dated August 6, 2001, was specified as the appropriate source of service information in the NPRM.) Boeing ASB DC10-76A048, Revision 01, dated January 29, 2002, adds two airplanes to the effectivity and describes procedures that are generally the same as the original service bulletin. The procedures described in Revision 01 of the ASB are for an inspection of the TCM on the center pedestal in the flight deck compartment to determine its part number and configuration, and modification of the TCM. The modification includes removing material from the throttle lever and cover plates (as applicable) for engines 1, 2, and 3; replacing the existing guide assembly with an improved guide assembly inside the TCM; replacing the existing protective sleeving on the wire bundles; removing previously installed spiral wrap tubing on the auto throttle/takeoff/go around (TOGA) wiring; and reidentifying the coverplates and TCM; as applicable.

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

Due consideration has been given to the comments received in response to the NPRM.

Three commenters request that the compliance time for the modification that would be required by paragraph (a) of the proposal be extended from 18 months to 5 years. Two commenters state that there may be a problem with parts availability, and that they would be unable to meet an 18-month compliance time. Additionally, the commenters note that a 5-year compliance time would also align with the modification of the thrust reverser activation system (TRAS) that is required by AD 2001-17-19, amendment 39-12410 (65 FR 44950, August 27, 2001). That AD requires the TCM to be removed in order to access the TRAS. One commenter requests that, for certain airplanes, the compliance time be extended to 36 months. That commenter did not provide any justification for the extension. One commenter, the manufacturer, states that it has released a new service bulletin (Boeing ASB DC10-76A049, including Appendix and Evaluation Form, all dated January 29, 2002, as described earlier in this Supplemental Notice of Proposed Rulemaking (SNPRM)) that specifies repetitive visual inspections for chafing or potential chafing of the TCM wiring located on the center pedestal in the flight compartment. The manufacturer states that, if the repetitive inspections described in the new service bulletins are accomplished every 18 months, a 5-year compliance time for the modification should be adequate to ensure operational safety of the affected airplanes.

The FAA agrees with certain commenters that the compliance time may be extended for the reasons they specified. We have revised the original NPRM to extend the compliance time for the modification until 5 years after the effective date of the AD. Additionally, we have added a new paragraph (a) to this SNPRM that specifies repetitive visual inspections for chafing or potential chafing of the wiring every 18 months, until the modification is accomplished.

Two commenters disagree with a need for the rule as proposed. The commenters state that they are unaware of any report of smoke or fire in the cockpit of the Model DC-10 fleet that resulted from wire chafing in the TCM. The commenters conclude that supporting documentation of such incidents of smoke or fire is absent. The FAA infers that the commenters are requesting that the original NPRM be withdrawn.

The FAA does not agree. We acknowledge that we are unaware of any specific reports of smoke or fire due to wire arcing or chafing associated with the TCM on the airplanes specified in this SNPRM. However, we find that there have been numerous incident reports describing wire chafing that emanated from other systems, which has been identified as the ignition source for some in-flight smoke and/or fires. Therefore, we consider that an unsafe condition has been identified that is likely to exist or develop on other products of these type designs, and that issuance of this SNPRM is warranted.

The commenters request that the Cost Impact section be revised to reflect a more realistic work hour estimate of 24 hours for the accomplishment of the modification. (The original NPRM estimates between 4 and 7 hours.)

The FAA agrees that the cost information should be revised. However, we have revised the estimated cost for accomplishing the modification based on the current work hours estimated in Boeing ASB DC10-76A048, Revision 01, dated January 29, 2002. The estimated work hours to accomplish the modification specified in that service bulletin (excluding work hours to remove, install, and test) are approximately 15 work hours. We estimate that the average labor rate is $60 per work hour, and that required parts would cost approximately $1,712 per airplane. Based on those figures, we estimate that the modification cost impact of the proposed AD would be $2,612 per airplane.

Additionally, we have added an estimated cost of the inspection specified in Boeing ASB DC10-76A049, dated January 29, 2002. We estimate that each inspection would take 2 work hours to perform, at an estimated average labor rate of $60 per work hour, per inspection. Based on those figures, we estimate that each inspection would cost approximately $120 per airplane, per inspection cycle.

Since an unsafe condition has been identified that is likely to exist or develop on other products of these type designs, this SNPRM would continue to require an inspection of the TCM on the center pedestal in the flight deck compartment to determine its part number and configuration, and modification of the TCM. This SNPRM also would add repetitive inspections for chafing or potential chafing of the TCM wiring, and corrective actions if necessary. This SNPRM also would require adding airplanes to the applicability of this AD. The actions would be required to be accomplished in accordance with the service bulletins described previously.

Since these changes expand the scope of the originally proposed rule, the FAA has determined that it is necessary to reopen the comment period to provide additional opportunity for public comment.

The FAA has revised the applicability of the original NPRM to identify model designations as published in the most recent type certificate date sheet for the affected models.

There are approximately 401 McDonnell Douglas Model DC-10-10 and DC-10-10F airplanes; Model DC-10-15 airplanes; Model DC-10-30, DC-10-30F, and DC-10-30F (KC10A and KDC-10) airplanes; Model DC-10-40 and DC-10-40F airplanes; and Model MD-10-10F and “MD-10-30F airplanes; of the affected design in the worldwide fleet. The FAA estimates that 321 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 15 work hours per airplane to accomplish the proposed modification, and that the average labor rate is $60 per work hour. Required parts would cost approximately $1,712 per airplane. Based on these figures, the cost impact of the modification proposed by this AD on U.S. operators is estimated to be $838,452 or $2,612 per airplane.

We estimate that it would take approximately 2 work hours per airplane to perform the proposed inspections, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the inspections proposed by this AD on U.S. operators is estimated to be $38,520, or $120 per airplane, per inspection cycle.

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

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

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

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

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-54-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-54-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The Federal Aviation Administration (FAA) recently completed a review of in-flight entertainment (IFE) systems certified by supplemental type certificate (STC) and installed on transport category airplanes. The review focused on the interface between the IFE system and airplane electrical system, with the objective of determining if any unsafe conditions exist with regard to the interface. STCs issued between 1992 and 2000 were considered for the review.

The type of IFE systems considered for review were those that contain video monitors (cathode ray tubes or liquid crystal displays; either hanging above the aisle or mounted on individual seat backs or seat trays), or complex circuitry ( i.e. , power supplies, electronic distribution boxes, extensive wire routing, relatively high power consumption, multiple layers of circuit protection, etc.). In addition, in-seat power supply systems that provide power to more than 20 percent of the total passenger seats were also considered for the review. The types of IFE systems not considered for review include systems that provide only audio signals to each passenger seat, ordinary in-flight telephone systems ( e.g. , one telephone handset per group of seats or bulkhead-mounted telephones), systems that only have a video monitor on the forward bulkhead(s) (or a projection system) to provide passengers with basic airplane and flight information, and in-seat power supply systems that provide power to less than 20 percent of the total passenger seats.

Items considered during the review include the following:

• Can the electrical bus(es) supplying power to the IFE system be deenergized when necessary without removing power from systems that may be required for continued safe flight and landing?

• Can IFE system power be removed when required without pulling IFE system circuit breakers ( i.e. , is there a switch (dedicated to the IFE system or a combination of loads) located in the flight deck or cabin that can be used to remove IFE power?)?

• If the IFE system requires changes to flight crew procedures, has the airplane flight manual (AFM) been properly amended?

• If the IFE system requires changes to cabin crew procedures, have they been properly amended?

• Does the IFE system require periodic or special maintenance?

In all, approximately 180 IFE systems approved by STC were reviewed by the FAA. The review results indicate that potential unsafe conditions exist on some IFE systems installed on various transport category airplanes. These conditions can be summarized as:

• Electrical bus(es) supplying power to the IFE system cannot be deenergized when necessary without removing power from systems that may be required for continued safe flight and landing.

• Power cannot be removed from the IFE system when required without pulling IFE system circuit breakers ( i.e. , there is no switch dedicated to the IFE system or combination of systems for the purpose of removing power).

• Installation of the IFE system has affected crew (flight crew and/or cabin crew) procedures, but the procedures have not been properly revised.

As part of its review of IFE systems, the FAA has determined that an unsafe condition exists on all Boeing Model 767-300 series airplanes modified by STC ST01783AT-D. The IFE system on these airplanes is connected to an electrical bus that cannot be deactivated without also removing power from airplane systems necessary for safe flight and landing. There is no other means to remove power from the IFE system. Additionally, the airplane manufacturer's published flight crew and cabin crew emergency procedures do not advise the flight crew and cabin crew that power cannot be removed from the IFE system. This condition, if not corrected, could result in inability to remove power from the IFE system during a non-normal or emergency situation, and consequent inability to control smoke or fumes in the airplane flight deck or cabin.

The FAA has reviewed and approved TIMCO Service Bulletin TSB-767-23-009, Revision IR, dated August 22, 2001. That service bulletin describes procedures for modifying the IFE system by installing two new relays to control power inputs to the IFE system, and a new circuit breaker to protect the wiring of the IFE system. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

The FAA also has reviewed and approved TIMCO AFM Supplement TIM-AFM-01035, dated March 13, 2002, which revises the procedures under the heading “Electrical Smoke or Fire” in the “Emergency Procedures” section of the AFM to provide instructions for the cabin crew to remove power from the various components of the IFE system in an emergency.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously. The proposed AD also would require revising procedures to be followed in the event of smoke or fire in the airplane by including the information in the AFM supplement described previously. Accomplishment of these actions is intended to adequately address the identified unsafe condition.

In developing an appropriate compliance time for this action, the FAA considered not only the degree of urgency associated with addressing the subject unsafe condition, but the amount of time necessary to accomplish the proposed actions, and the practical aspect of accomplishing the proposed actions within an interval of time that parallels normal scheduled maintenance for the affected operators. In consideration of these factors, the FAA has determined that 18 months after the effective date of this AD represents an appropriate interval of time allowable wherein an acceptable level of safety can be maintained.

While TIMCO Service Bulletin TSB-767-23-009, Revision IR, and TIMCO AFM Supplement TIM-AFM-01035 specify that they are effective for “Boeing Model 767-300ER” series airplanes, this proposed AD would apply to Boeing Model 767-300 series airplanes. The model designation in this proposed AD is consistent with the most recent type certificate data sheet for the affected model.

The FAA has previously issued several ADs that address unsafe conditions and require corrective actions similar to those that would be required by the proposed AD. These other ADs, and the airplane models and STCs to which they apply, are as follows:

There are approximately 37 airplanes of the affected design in the worldwide fleet. The FAA estimates that 37 airplanes of U.S. registry would be affected by this proposed AD.

It would take approximately 66 work hours per airplane to accomplish the proposed modification, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the proposed modification on U.S. operators is estimated to be $146,520, or $3,960 per airplane.

It would take approximately 1 work hour per airplane to accomplish the proposed AFM revision, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the proposed AFM revision on U.S. operators is estimated to be $2,220, or $60 per airplane.

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

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

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

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

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-19-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 200-NM-19-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add an airworthiness directive (AD), applicable to certain Boeing Model 727, 737-100, 737-200, and 737-200C series airplanes, was published as a notice of proposed rulemaking (NPRM) in the Federal Register on May 20, 2002 (67 FR 35464). That NPRM would have required a one-time inspection to determine the part number of hydraulic accumulators installed in various areas of the airplane, and follow-on corrective actions if necessary. That NPRM was prompted by reports of several incidents on various Boeing Model 747 series airplanes, and one incident on a Boeing Model 737-200 series airplane, in which aluminum end caps on hydraulic accumulators have fractured. That condition, if not corrected, could result in high-velocity separation of a barrel, piston, or end cap from a hydraulic accumulator. Such separation could result in injury to personnel in the accumulator area; loss of cabin pressurization; loss of affected hydraulic systems; or damage to plumbing, electrical installations, or structural members.

Due consideration has been given to the comments received in response to the NPRM. Certain comments, as discussed below, have resulted in changes to the proposed AD.

One commenter concurs with the proposed AD, and another commenter states that it has no technical objection to the proposed AD because it does not operate any affected airplanes.

One commenter, the airplane manufacturer, requests that the FAA revise the proposed AD to include additional requirements. The commenter points out that Boeing Special Attention Service Bulletin 737-78-1068, Revision 1, dated March 1, 2001, addresses a hydraulic accumulator, Boeing part number (P/N) BACA11E2 (vendor P/N 2660472-2 or 2660472M2), installed in the thrust reverser actuation system on certain Boeing Model 737-100, -200, and “200C series airplanes. Boeing Special Attention Service Bulletin 737-32-1334, Revision 1, dated March 1, 2001, which is one of the service bulletins that would be required by the proposed AD, addresses the same hydraulic accumulator as installed in the landing gear brake system.

The FAA concurs with the commenter's request. We have reviewed and approved Boeing Special Attention Service Bulletin 737-78-1068, Revision 1. That service bulletin describes procedures for a one-time inspection to determine the part number of the hydraulic accumulator in the thrust reverser actuation system, and follow-on corrective actions. Corrective actions include replacing the existing hydraulic accumulator with an improved or modified accumulator having stainless steel end caps. The service bulletin refers to Parker Service Bulletin 2660472-29-63, dated December 12, 2000, as the appropriate source of service information for modification of the hydraulic accumulator.

We have added a new paragraph, paragraph (e), to this supplemental NPRM to propose to require accomplishment of the actions in Boeing Special Attention Service Bulletin 737-78-1068, Revision 1. Also, we have added Note 6 to this supplemental NPRM to state that the service bulletin refers to Parker Service Bulletin 2660472-29-63 as the appropriate source of service information for modification of the hydraulic accumulator.

One commenter requests that we revise paragraphs (b)(2) and (c)(2) of the proposed AD to remove certain P/Ns. The commenter points out that the accumulators with those particular P/Ns have steel end caps. The only necessary action is installation of new accumulator clamps and mounting hardware. The commenter suggests that we move the specified P/Ns to a separate paragraph to clarify that replacement of these accumulators with new accumulators is not necessary.

We concur that moving the specified part numbers to separate paragraphs would more clearly state our intent. We acknowledge that the P/Ns identified by the commenter do not need to be replaced. Therefore, we have revised paragraphs (b)(2) and (c)(2) of this supplemental NPRM to remove the subject P/Ns, and have included those P/Ns in new paragraphs (b)(3) and (c)(3) of this supplemental NPRM. Those paragraphs would require replacing existing accumulator clamps and mounting hardware with stronger accumulator clamps and mounting hardware, per the referenced service bulletin.

The same commenter requests that we remove a certain accumulator, P/N BACA11E4S, from paragraphs (b)(2) and (c)(2) of the proposed AD. The commenter states that, while that accumulator has aluminum end caps, the end caps are thicker and the design of the accumulator is different from that of the accumulators that have failed in service. The commenter notes that there have been no reported failures of that accumulator. The commenter asserts that no action is necessary if this accumulator is installed.

We partially concur. We do not agree that no action is necessary if an accumulator with the subject P/N is installed. However, if an accumulator with the subject P/N is installed, it is necessary only to replace existing accumulator clamps and mounting hardware with new, stronger clamps and hardware. Therefore, we have removed the subject P/N from paragraphs (b)(2) and (c)(2) of the proposed AD and instead have included it in new paragraphs (b)(3) and (c)(3) of this supplemental NPRM, which were described previously.

Because the language in Notes 2 and 6 of the proposed AD is regulatory in nature, those notes have been redesignated as paragraphs (f) and (g) of this supplemental NPRM. Remaining notes have been renumbered accordingly.

Also, paragraphs (a), (b), (c), (d), and (e), have been revised in this supplemental NPRM to clarify that we do not intend to require completing the Evaluation Form attached to the service bulletin.

Since certain changes described previously expand the scope of the originally proposed AD, the FAA has determined that it is necessary to reopen the comment period to provide additional opportunity for public comment.

There are approximately 1,832 Model 727 series airplanes and 1,033 Model 737 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 1,294 Model 727 series airplanes and 376 Model 737 series airplanes of U.S. registry would be affected by this proposed AD.

We estimate that it would take approximately 1 work hour per airplane to accomplish the proposed one-time inspection, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the proposed one-time inspection on U.S. operators is estimated to be $100,200, or $60 per airplane.

For an airplane subject to the replacement per Boeing Service Bulletin 727-29-0064, we estimate that it would take approximately 5 work hours per accumulator (two hydraulic system accumulators per airplane), at an average labor rate of $60 per work hour. Required parts would cost between $1,400 (new part) and $2,810 (vendor-modified part) per accumulator. Based on these figures, the cost impact of this replacement, if necessary, would be between $1,700 and $3,110 per accumulator.

For an airplane subject to the replacement of both the mounting clamps and hardware and the hydraulic accumulator per Boeing Service Bulletin 727-32-0410, we estimate that it would take approximately 6 work hours per airplane to accomplish (one landing gear brake accumulator per airplane), at an average labor rate of $60 per work hour. Required parts would cost between $2,500 (new part) and $3,975 (vendor-modified part) per airplane. Based on these figures, the cost impact of this replacement, if necessary, would be between $2,860 and $4,335 per airplane.

For an airplane subject to the replacement of both the mounting clamps and hardware and the hydraulic accumulator per Boeing Service Bulletin 727-52-0148, we estimate that it would take approximately 6 work hours per airplane (one aft airstairs hydraulic accumulator per airplane) to accomplish, at an average labor rate of $60 per work hour. Required parts would cost between $2,500 (new part) and $3,975 (vendor-modified part) per airplane. Based on these figures, the cost impact of this replacement, if necessary, would be between $2,860 and $4,335 per airplane.

For an airplane subject to the replacement per Boeing Service Bulletin 737-32-1334, we estimate that it would take approximately 5 work hours per accumulator (two landing gear hydraulic brake accumulators per airplane) to accomplish, at an average labor rate of $60 per work hour. Required parts would cost between $2,175 (operator-modified part) and $2,410 (vendor-modified part) per accumulator. Based on these figures, the cost impact of this replacement, if necessary, would be between $2,475 and $2,710 per accumulator.

For an airplane subject to the replacement per Boeing Special Attention Service Bulletin 737-78-1068, we estimate that it would take approximately 5 work hours per accumulator to accomplish, at an average labor rate of $60 per work hour. Required parts would cost between $2,175 (operator-modified part) and $2,410 (vendor-modified part) per accumulator. Based on these figures, the cost impact of this replacement, if necessary, would be between $2,475 and $2,710 per accumulator.

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

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

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

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

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-154-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-154-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add an airworthiness directive (AD), applicable to certain Airbus Model A330 and A340 series airplanes, was published as a notice of proposed rulemaking (NPRM) in the Federal Register on October 12, 2001 (66 FR 52066). That NPRM would have required repetitive inspections for foreign objects between the slider and the girt bar attachment fittings of the emergency escape slides; a one-time inspection for correct adjustment of the slide release mechanism and the girt bar attachment fittings, which would terminate the repetitive inspections; a one-time test for correct extension of the girt bar through the sliders; and corrective action, if necessary. The original NPRM was prompted by a report indicating that, during escape slide deployment tests on a Model A330 series airplane, the girt bar of the emergency escape slide became detached from the airplane when the escape slide was deployed. That condition, if not corrected, could result in failure of an emergency escape slide, which could result in a delayed evacuation in an emergency and consequent injury to passengers or crew.

Since the issuance of that NPRM, operators have reported difficulty with certain inspection procedures described in the service bulletins. Problems encountered in measuring the gap between the sliders and the girt bar in some cases resulted in asymmetrical adjustment of the girt bar assembly. The manufacturer has since revised the service bulletins to improve the rigging procedures.

In addition, the Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, has advised that the identified unsafe condition may apply to additional airplanes. Airbus Model A300, A300-600, and A310 series airplanes are equipped with the same escape slide installation as that on Model A330 and A340 series airplanes.

The original NPRM cited Airbus Service Bulletins A330-52-3064 and A340-52-4076, both dated April 4, 2001, as the appropriate sources of service information for the proposed actions. Since the original NPRM was issued, Airbus issued Revision 01 of each service bulletin on June 12, 2002, to revise certain inspection procedures and add airplanes to the effectivity. The remaining procedures are essentially unchanged.

Airbus has also issued Service Bulletins A300-52-0174, A310-52-2066, and A300-52-6062, all Revision 01, all dated August 23, 2002, which describe essentially the same procedures as those described in revised Service Bulletins A330-52-3064 and A340-52-4076.

Accomplishment of the actions specified in the revised service bulletins is intended to adequately address the identified unsafe condition. The DGAC classified these service bulletins as mandatory. To ensure the continued airworthiness of these airplanes in France, the DGAC issued French airworthiness directives 2002-296(B) and 2002-297(B), both dated June 12, 2002; and 2002-525(B), dated October 16, 2002.

Based on the DGAC's findings, the FAA has determined that it is necessary to revise the applicability of the original NPRM to add certain Model A300, A300-600, and A310 series airplanes.

For clarification, the FAA has also revised the definition of a “general visual inspection” (Note 2) in this supplemental NPRM.

Since these changes expand the scope of the originally proposed rule, the FAA has determined that it is necessary to reopen the comment period to provide additional opportunity for public comment.

The FAA estimates that 103 airplanes of U.S. registry would be affected by this proposed AD.

It would take approximately 2 work hours per airplane to inspect for foreign objects between the slider and the girt bar attachment fittings, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this inspection on U.S. operators is estimated to be $12,360, or $120 per airplane, per inspection cycle.

It would take approximately 4 work hours per airplane to determine whether the slide mechanism and girt bar attachment fittings are adjusted correctly, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this inspection on U.S. operators is estimated to be $24,720, or $240 per airplane.

It would take approximately 4 work hours per airplane to determine whether the girt bar extends through the sliders correctly, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this inspection on U.S. operators is estimated to be $24,720, or $240 per airplane.

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

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

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

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

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-301-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-301-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The Direction Ge ne rale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified the FAA that an unsafe condition may exist on certain Airbus Model A319 and A320 series airplanes. The DGAC advises that it has received reports from operators of loss of fuel quantity indications (FQI) of the center fuel tank. Investigation of the inside of the center fuel tank revealed that the source of the fault was an FQI probe touching the adjacent structure. Further investigation revealed that, during production of these airplanes, the support bracket for FQI probe 38QT had been installed in the position for FQI probe 39QT, and the support bracket for FQI probe 39QT had been installed in the position for FQI probe 38QT, which resulted in inadequate clearance. These conditions, if not corrected, could result in loss of FQI of the center fuel tank, and electrical arcing between the FQI probes and the adjacent structure in the event the airplane is struck by lightning. Such arcing could create a potential ignition source within the center fuel tank and an increased risk of a fuel tank explosion and fire.

Airbus has issued Service Bulletin A320-28A1096 including Appendix 01 and Reporting Sheet, all Revision 01, all dated July 4, 2001. The service bulletin describes procedures for an inspection for proper clearance space between the FQI probes located in the center fuel tank and the adjacent structure; an inspection of the position of the support bracket for each probe; an inspection of the part number for each support bracket; and corrective action if necessary. The corrective action includes removal and re-installation of the probe and its support bracket. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition. The DGAC classified this service bulletin as mandatory and issued French airworthiness directive 2001-271(B), dated June 27, 2001, in order to assure the continued airworthiness of these airplanes in France.

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

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

Operators should note that, although the Accomplishment Instructions of the referenced service bulletin describe procedures for the completion and submission of an inspection report (Appendix 01 and Reporting Sheet), this proposed AD would not require such reporting.

The FAA estimates that 24 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 1 work hour per airplane to accomplish the proposed inspection, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $1,440, or $60 per airplane.

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

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

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

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

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-134-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-134-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The FAA has previously received reports of five instances of failed connectors in the fuel boost/transfer pump circuit on certain McDonnell Douglas Model DC-10 and MD-11 series airplanes. The connectors returned for evaluation exhibited arcing of the contacts to the shell in the back side of the connector and between the glass insert and potting material. Arcing also caused the potting material to be displaced from the glass seal in the connector backshell, which separated the contacts and wiring. Typically, the circuit breaker was not actuated, as the arcing event was faster than the time required for the circuit breaker to detect the event. The only indication has been that failed connectors cause loss of the fuel boost/transfer pump circuit. The cause of the connector failures is under investigation. Arcing of connectors of the fuel boost/transfer pump, if not corrected, could result in a fire or explosion of the fuel tank.

We previously issued AD 2002-13-10, amendment 39-12798 (67 FR 45053, July 8, 2002), to require repetitive tests for electrical continuity and resistance and repetitive inspections to detect discrepancies of the fuel boost/transfer pump connectors; and corrective actions, if necessary. That AD applies to certain McDonnell Douglas Model DC-10-10, -10F, -15, -30, -30F, -30F (KC10A and KDC-10), -40, and -40F airplanes; Model MD-10-10F and -30F airplanes; and Model MD-11 and -11F airplanes.

In the final rule for AD 2002-13-10, we note that, subsequent to the issuance of the notice of proposed rulemaking (NPRM) for that AD, the manufacturer issued Boeing Alert Service Bulletin DC10-28A228, including Appendix, Revision 02, dated December 7, 2001. Revision 02 of the service bulletin contains no new procedures beyond those in previous revisions of the service bulletin, but adds a single airplane, fuselage number 0106, to the effectivity listing. That airplane had been inadvertently omitted from the previous issue of the service bulletin.

We state in AD 2002-13-10 that we may consider additional rulemaking to require accomplishment of the actions in that AD on the airplane added to Revision 02 of the referenced service bulletin. We have determined that such rulemaking is indeed necessary, and this proposed AD follows from that determination. We have included Note 1 in this proposed AD to clarify that this proposed AD is related to AD 2002-13-10.

As specified previously in AD 2002-13-10, we previously reviewed and approved Boeing Alert Service Bulletin DC10-28A228, including Appendix, Revision 02, which describe procedures for repetitive tests (using a digital multi-meter and Quadtech 1864 megohm meter) for electrical continuity and resistance and repetitive general visual inspections to detect discrepancies ( e.g , damage, arcing, loose parts, wear) of the fuel boost/transfer pump connectors (alternating current pumping unit); and corrective actions, if necessary. The corrective actions include replacement of the connector/wire assembly with a serviceable connector/wire assembly, and replacement of the pump with a serviceable fuel boost/transfer pump, as applicable. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

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

Although the Accomplishment Instructions of Boeing Alert Service Bulletin DC10-28A228, including Appendix, Revision 02, refer to a reporting requirement using the form in the Appendix of the service bulletin, this proposed AD would not require such reporting. We do not need the information described in the Appendix to the service bulletin.

This is considered to be interim action. The manufacturer has advised that it currently is developing a modification that will address the unsafe condition addressed by this AD. Once this modification is developed, approved, and available, we may consider additional rulemaking.

This proposed AD applies to one airplane and that airplane is of U.S. registry. It would take approximately 65 work hours to accomplish the proposed tests and inspections on that airplane, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the proposed AD on the single U.S. operator is estimated to be $3,900, per test or inspection cycle.

The cost impact figure discussed above is based on assumptions that the operator has not yet accomplished any of the proposed requirements of this AD action, and that the operator would not accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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

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

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

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-268-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-268-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The FAA has received a report indicating that two tie-bolt nuts were missing from a main landing gear (MLG) wheel, and that the remaining nuts were loose on a Raytheon Model Hawker 800XP airplane. Investigation revealed that the airplane manufacturer supplied to operators tie-bolt nuts with an incorrect part number, which were then installed on the MLG wheel tie-bolts. Tie-bolt nuts that have the incorrect part number have a lesser locking capability than the correct tie-bolt nuts. Installing incorrect tie-bolt nuts could lead to the nuts loosening due to the nuts not locking properly, which could result in the failure of the tie-bolts on the MLG wheel. This condition, if not corrected, could result in separation of an MLG wheel due to loose or missing tie-bolts or tie-bolt nuts, with consequent damage to airplane structure or systems, decompression, loss of full braking ability, or injury to personnel on the ground.

The tie-bolt nuts installed on the MLG wheels of the Raytheon Model BAe.125 series 800A, 800A (C-29A), 800A (U-125), and 800B airplanes; Model BH.125 series 400A airplanes; Model DH.125 series airplanes; Model Hawker 800, 800 (U-125A), and 800XP airplanes; Model HS.125 series F3B, F3B/RA, F400B, F403B, 1B, 1B-522, 1B/R-522, 1B/S-522, 3B, 3B/R, 3B/RA, 3B/RB, 3B/RC, 400B, 400B/1, 401B, 403A(C), and 403B airplanes may be identical to those installed on the affected Raytheon Model Hawker 800XP airplanes. Therefore, all of these airplane models may be subject to the same unsafe condition.

The FAA has reviewed and approved Raytheon Service Bulletin SB 32-3522, dated September 2002, including Service Bulletin/Kit Drawing Report Fax, which describes procedures for inspecting the MLG wheels to determine the part numbers of the tie-bolt nuts, and replacing the tie-bolt nuts with new nuts if necessary. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

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

Operators should note that, although the Accomplishment Instructions of the referenced service bulletin describe procedures for the completion and submission of a Service Bulletin/Kit Drawing Report Fax for reporting the relevant airplane and modification details, this proposed AD does not include such a reporting requirement.

There are approximately 166 airplanes of the affected design in the worldwide fleet. The FAA estimates that 84 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 1 work hour per airplane to accomplish the proposed inspection, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $5,040, or $60 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions. Manufacturer warranty remedies may be available for labor costs associated with this proposed AD. As a result, the costs attributable to the proposed AD may be less than stated above.

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

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

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

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-395-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-395-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

On October 21, 1998, the FAA issued AD 98-22-12, amendment 39-10859 (63 FR 57577, October 28, 1998), applicable to certain Boeing Model 767 series airplanes, to require repetitive detailed inspections to detect cracked, corroded, or stained collar fittings on both inboard trailing edge flaps; and follow-on corrective actions, if necessary. That action was prompted by a report indicating that a collar fitting suffered a complete fracture as a result of stress corrosion cracking. The requirements of that AD are intended to prevent separation of the inboard trailing edge flap from the airplane due to fractured collar fittings.

In the preamble to AD 98-22-12, the FAA indicated that the actions required by that AD were considered “interim action” and that further rulemaking action was being considered. We now have determined that further rulemaking action is indeed necessary, and this proposed AD follows from that determination.

Since the issuance of AD 98-22-12, the airplane manufacturer has received reports indicating corrosion of the splined components of the inboard support of the trailing edge flap. The root cause of the corrosion was determined to be a breakdown of the MIL-G-23827 grease in the joint, which subsequently allowed moisture to enter the joint. Eventually, the splined components corroded and, in two instances, stress corrosion cracking of one component occurred. We now have determined that it is necessary to require additional inspections on airplanes affected by the existing AD and to expand the applicability of the existing AD to include airplanes that were assembled with the corrosion inhibiting compound (CIC) BMS 3-27 and delivered before the Maintenance Planning Document (MPD) was revised by the manufacturer in April 1999. The MPD was revised to include the 12-year/24,000-flight-cycle teardown inspection as part of normal airplane maintenance for airplanes assembled with BMS 3-27.

We have reviewed and approved Boeing Alert Service Bulletin 767-57A0066, Revision 3, including Appendices A and B, dated December 19, 2001, and Evaluation Form. (The existing AD shows Boeing Alert Service Bulletin 767-57A0066, Revision 1, dated August 6, 1998, as the appropriate source of service information for accomplishment of the actions required by that AD.) Revision 3 of the service bulletin adds Part 5—Titanine Inspection and Rework, which describes procedures for doing Part 1-Inspection, Part 3-Spline Inspection, and Part 4-Spline Rework; then repeating the spline inspection at the intervals specified if it is determined that the CIC Titanine JC5A was used per Revision 2 of the service bulletin, dated February 18, 1999, or if the maintenance records are inconclusive on the type of CIC used. Subsequent to issuance of Revision 2 of the service bulletin, it was determined that Titanine JC5A does not provide adequate corrosion protection for the joints specified in the service bulletin. Revision 3 of the service bulletin also describes procedures for light wear rework of the splines if no corrosion or corrosion pits are found, in lieu of a complete spline evaluation and overhaul. Appendix A, titled “Guide for Determining the Level of Rework Required,” was added to assist operators in determining if the light wear rework procedure can be used. Part 3—Spline Inspection describes procedures for repetitive spline inspections in lieu of terminating action as routine scheduled maintenance, and defines procedural clarifications and changes. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would supersede AD 98-22-12 to continue to require repetitive detailed inspections to detect cracked, corroded, or stained collar fittings on both inboard trailing edge flaps; and follow-on corrective actions, if necessary. This new action would expand the applicability in the existing AD, and would add repetitive inspections for discrepancies of the collar fittings, torque tube, and splined bushings on both inboard trailing edge flaps; and follow-on and corrective actions, if necessary. The actions would be required to be accomplished in accordance with the service bulletin described previously, except as discussed below.

Operators should note that the number of airplanes to which this proposed AD is applicable is larger than that published in the service bulletin. Additional line numbers of airplanes have been included (line numbers 1 through 749 inclusive), as advised in Boeing Letter B-H210-01-0432, dated December 14, 2001.

We have changed all references to a “detailed visual inspection” in the existing AD to a “detailed inspection” in this AD. We also have added Part 4-Spline Rework, specified in Revision 3 of the service bulletin, to paragraphs (a)(3) and (a)(4)(ii) of the existing AD for the repair of corrosion, as an alternative to repairing per the Manager, Seattle Aircraft Certification Office.

There are approximately 738 airplanes of the affected design in the worldwide fleet. The FAA estimates that 306 airplanes of U.S. registry would be affected by this proposed AD.

The actions that are currently required by AD 98-22-12 take approximately 2 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the currently required actions is estimated to be $120 per airplane, per inspection cycle.

The new inspections and refinishing that are proposed in this AD action would take approximately 2 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the proposed requirements of this AD on U.S. operators is estimated to be $36,720, or $120 per airplane, per cycle.

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

Should an operator be required to do the replacement proposed in this AD action, it would take approximately 63 work hours per wing, at an average labor rate of $60 per work hour. Parts costs are not available at this time. Based on these figures, the cost impact of the replacement is estimated to be $3,780 per wing, per airplane.

Should an operator be required to do the rework proposed in this AD action, it would take approximately 63 work hours per wing, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the rework is estimated to be $3,780 per wing, per airplane.

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

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

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

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, economic, environmental, and energy-regulated aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2002-13936/Airspace Docket No. 02-AEA-22”. The postcard will be date/time stamped and returned to the commenter.

An electronic copy of this document may be downloaded through the Internet at http://dms.dot.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at http://www.faa.gov or the Superintendent of Documents web page at http://www.access.gpo.gov/nara. Additionally, any person may obtain a copy of this notice by submitting a request to the Federal Aviation Administration, Office of Air Traffic Airspace Management, ATA-400, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-8783. Communications must identify both docket numbers for this notice. Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

The FAA is considering an amendment to Part 71 of the Federal Aviation Regulations (14 CFR Part 71) to establish Class E airspace area at Ridgely, MD. The development of SIAPs to serve flights operating IFR into Ridgely Airpark makes this action necessary. Controlled airspace extending upward from 700 feet AGL is needed to accommodate the SIAPs. Class E airspace designations for airspace areas extending upward from 700 feet or more above the surface are published in Paragraph 6005 of FAA Order 7400.9K, dated August 30, 2002, and effective September 16, 2002, which incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation—(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) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that would only affect air traffic procedures and air navigation, it is certified that this proposed rule would not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR Part 71 as follows:

An electronic copy of today's notice is available on the Worldwide Web through the Technology Transfer Network (TTN). Following the Assistant Administrator's signature, a copy of this notice will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at http://www.epa.gov/ttn/oarpg. In addition, electronic versions of all these proposed NESHAP that are affected by this notice are also currently available on the TTN at http://www.epa.gov/ttn/oarpg/new.html. The TTN provides information and technology exchange in various areas of air pollution control. If more information regarding the TTN is needed, call the TTN HELP line at (919) 541-5384.

In accordance with section 112(e)(1) of the Clean Air Act (CAA), EPA issued a schedule for promulgation of NESHAP that specified that the NESHAP for Stationary Combustion Turbines, Surface Coating of Metal Cans, and Primary Magnesium Refining were to be promulgated as final rules by November 15, 2000. We are now considerably past that date. In addition, the requirements of section 112(j) of the CAA specify that all sources in these source categories must submit permit applications for case-by-case determinations of the maximum achievable emissions reductions of hazardous air pollutants in the absence of a final rule. It is imperative that these proposed rules be finalized as soon as possible to avoid the unnecessary expenditure of resources by affected sources and permitting authorities.

The proposed NESHAP were signed by the Administrator on November 26, 2002, and were available on the TTN on the same day. Therefore, the proposed NESHAP have been widely available to the public since that time. We do not anticipate that any of the proposed NESHAP will be published in the Federal Register prior to December 26, 2002. If we allow a comment period of 30 days from actual publication in the Federal Register , the proposed NESHAP will still have been widely available to the public for 60 days or more.

Section 9004 of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6991c, authorizes EPA to approve state underground storage tank programs to operate in lieu of the Federal UST program. EPA may approve a State program if the Agency finds pursuant to RCRA section 9004(b), 42 U.S.C. 6991c(b), that the state's program is “no less stringent” than the Federal program in all seven elements set forth at RCRA section 9004(a) (1) through (7), 42 U.S.C. 6991c(a) (1) through (7), meets the notification requirements of RCRA section 9004(a)(8), 42 U.S.C. 6991c(a)(8), and also provides for adequate enforcement of compliance with UST standards in accordance with RCRA section 9004(a), 42 U.S.C. 6991c(a).

The Pennsylvania Department of Environmental Protection (PADEP) is the implementing agency for UST activities in the State. PADEP's Underground Storage Tank Program is dedicating a substantial effort to prevent, control and remediate UST-related contamination. PADEP's Underground Storage Tank Program maintains a strong field presence and works closely with the regulated community to ensure compliance with regulatory requirements.

The Commonwealth's regulations contain several requirements that are broader in scope than the Federal program which are not part of the program being authorized by today's action. EPA cannot enforce these broader in scope requirements. Although compliance with these provisions is required under Commonwealth law, they are not RCRA requirements. Such provisions include, but are not limited to, the following:

(1) Unlike the Federal program, Pennsylvania's program includes a definition of, and imposes obligations on, a “responsible party.” To the extent that Pennsylvania's definition of a “responsible party” includes entities that go beyond the owner and operator of an UST, it is in this respect, broader in scope than the Federal program.

(2) Unlike the Federal program, the Commonwealth's statute establishes a certification program for installers of underground storage tanks. In this respect, the Commonwealth's program is broader in scope than the Federal program.

(3) Pennsylvania's regulations require a person to obtain a “Site Specific Installation Permit” from PADEP prior to installing a field-constructed UST. Additionally, these systems need a “General Operating Permit.” Because the Federal program does not require any type of permit for tank installations or operations, the Commonwealth's program, in this respect, is broader in scope.

(4) Under Pennsylvania's regulations, underground storage tank owners or operators must have their underground storage tank facilities inspected by a state-certified inspector at the frequency established by Pennsylvania's regulations. The Federal regulations do not require third-party inspections, nor do they provide for a certified inspector program; therefore, in this regard, the Commonwealth's program is broader in scope than the Federal program.

(5) Unlike the Federal program, section 1311 (“Presumption”) of Pennsylvania's Storage Tank and Spill Prevention Act establishes a rebuttable presumption that a person who owns or operates a storage tank shall be liable, without proof of fault, for all damages, contamination or pollution within 2,500 feet of the perimeter of the site of an UST that contained a regulated substance of the type which caused the damage, contamination or pollution. This provision of Pennsylvania's program is broader in scope than the Federal program.

The Pennsylvania Department of Environmental Protection submitted to EPA a final application for approval on November 25, 2002. Prior to its submission, the State provided an opportunity for public notice and comment in the development of its underground storage tank program, as required by 40 CFR 281.50(b). EPA has reviewed the State's application, and has tentatively determined that the State's program meets all of the requirements necessary to qualify for final approval. However, EPA intends to review all timely public comments prior to making a final decision on whether to grant approval to the State to operate its program in lieu of the Federal program.

In accordance with section 9004 of RCRA, 42 U.S.C. 6991c, and 40 CFR 281.50(e), the Agency will hold a public hearing on its tentative determination on February 19, 2003, at 7 p.m. at the United States Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania, unless insufficient public interest is expressed. The public may also submit written comments on EPA's tentative determination until February 13, 2003. Copies of the State's application are available for inspection and copying at the locations indicated in the ADDRESSES section of this document.

EPA will consider all public comments on its tentative determination received at the public hearing, if a hearing is held, and during the public comment period. Issues raised by those comments may be the basis for a decision to deny approval to the State. EPA will give notice of its final decision in the Federal Register ; the notice will include a summary of the reasons for the final determination and a response to all significant comments.

This proposed rule will only approve State underground storage tank requirements pursuant to RCRA section 9004 and imposes no requirements other than those imposed by State law ( see SUPPLEMENTARY INFORMATION, section A. Background). Therefore, this proposed rule complies with applicable executive orders and statutory provisions as follows:

1. Executive Order 12866: Regulatory Planning Review —The Office of Management and Budget has exempted this proposed rule from its review under Executive Order 12866. 2. Paperwork Reduction Act —This proposed rule will not impose an information collection burden under the Paperwork Reduction Act. 3. Regulatory Flexibility Act —After considering the economic impacts of today's proposed rule on small entities under the Regulatory Flexibility Act, I certify that this proposed rule will not have a significant economic impact on a substantial number of small entities. 4. Unfunded Mandates Reform Act —Because this proposed rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act. 5. Executive Order 13132: Federalism —Executive Order 13132 does not apply to this proposed rule because it will not have federalism implications ( i.e. , 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). 6. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments —Executive Order 13175 does not apply to this proposed rule because it will not have tribal implications ( i.e. , substantial direct effects 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). 7. Executive Order 13045: Protection of Children from Environmental Health & Safety Risks —This proposed rule is not subject to Executive Order 13045 because it is not economically significant and it is not based on health or safety risks. 8. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use —This proposed rule is not subject to Executive Order 13211 because it is not a significant regulatory action as defined in Executive Order 12866. 9. National Technology Transfer Advancement Act —EPA approves State programs as long as they meet criteria required by RCRA, so it would be inconsistent with applicable law for EPA, in its review of a State program, to require the use of any particular voluntary consensus standard in place of another standard that meets the requirements of RCRA. Thus, section 12(d) of the National Technology Transfer and Advance Act does not apply to this proposed rule.

The flat-tailed horned lizard ( Phrynosoma mcallii ) is a small phrynosomatid lizard that reaches a maximum adult body length of 8.4 centimeters (cm) (3.3 inches [in]) (Muth and Fisher 1992). The flat-tailed horned lizard has a dorso-ventrally flattened body; long, broad flattened tail; and dagger-like head spines common to horned lizards. The species is cryptic in color, ranging from pale gray to light rust brown dorsally, and white or cream ventrally. It can be distinguished from the only other horned lizard known to occur within its range, the desert horned lizard ( Phrynosoma platyrhinos ), by its dark vertebral stripe, two rows of fringed scales on each side of the body, lack of external ear openings, and unmarked white ventral surface in most individuals (Foreman 1997). Apparent hybrids between the two species, exhibiting a mix of morphological characteristics, have been observed in the vicinity of Ocotillo, California (Stebbins 1985), and southeast of Yuma, Arizona (K. Young, Utah State University, pers. comm. 2002).

The flat-tailed horned lizard is endemic (restricted) to the Sonoran Desert in southern California, southwestern Arizona, and adjoining portions of Sonora and Baja California, Mexico (Turner and Medica 1982). Within California, the flat-tailed horned lizard ranges from the Coachella Valley, the northernmost extent of its range, south along both sides of the Salton Sea and Imperial Valley. On the west side of the Salton Sea and Imperial Valley, the species ranges into the Borrego Valley, Ocotillo Wells area, West Mesa, and the Yuha Desert (Yuha Basin). On the east side of Imperial Valley, the species occurs in the vicinity of the Dos Palmas Bureau of Land Management (BLM) Area of Critical Environmental Concern (ACEC), but predominantly occurs in East Mesa and in areas adjoining the Algodones Dunes ( i.e. , Imperial Sand Dunes, Glamis Sand Dunes). In Arizona, the flat-tailed horned lizard is found in the Yuma Desert south of the Gila River and west of the Gila and Butler Mountains (Rorabaugh et al. 1987). The flat-tailed horned lizard is patchily distributed throughout its range, and has been recorded at elevations as high as 520 meters (m) (1,706 feet [ft]) above sea level, but is more commonly found below 250 m (820 ft) in areas with flat-to-modest slopes (Turner et al. 1980).

The range of the flat-tailed horned lizard extends into Mexico from the international border in the Yuha Desert in California, south to Laguna Salada in Baja California, and from the international border in the Yuma Desert in Arizona, south and east through the Pinacate Region to the sandy plains around Puerto Penasco and Bahia de San Jorge, Sonora (Johnson and Spicer 1985, Gonzales-Romero and Alvarez-Cardenas 1989).

The distribution of the flat-tailed horned lizard is not contiguous across its range, because of fragmentation by large-scale agricultural and urban development, primarily in the Imperial Valley and the Coachella Valley. In addition, the Salton Sea, Colorado River, East Highline Canal, New Coachella Canal, and All American Canal are barriers to movement of flat-tailed horned lizards.

Due to this habitat fragmentation and existing geographic barriers, the distribution of flat-tailed horned lizards appears to be currently divided on a broad scale into at least four geographically discrete populations: three in California and one in Arizona. The three populations in California are located in the Coachella Valley, the west side of the Salton Sea/Imperial Valley, and the east side of the Imperial Valley.

The Coachella Valley population of flat-tailed horned lizards was likely much more extensive and connected to other populations in California in the past. Now it is isolated by extensive agricultural development in the southern half of the Coachella Valley and by the Salton Sea. The other two populations of flat-tailed horned lizards, on the west side of the Salton Sea/Imperial Valley and the east side of the Imperial Valley, are isolated from the Coachella Valley population and each other by agricultural and urban development of the Imperial Valley and by the Salton Sea. The Arizona population is isolated from populations in California by agricultural and urban development around Yuma, and ultimately by the Colorado River.

Hodges (1997) estimated that the flat-tailed horned lizard historically (prior to agricultural or urban development of either the Coachella or Imperial Valleys) occupied up to 979,037 hectares (ha) (2,419,200 acres [ac]) in Arizona and California. Approximately 51 percent (503,173 ha [1,243,340 ac]) of this historical habitat remains in the United States, with about 56,770 ha (140,300 ac) in Arizona and 446,390 ha (1,103,040 ac) in California (Hodges 1997). The Salton Sea area could arguably be considered ephemeral historical habitat, present at some points and absent at others, as the area changed through time. Hodges (1977) included the Salton Sea as historical habitat. If the area the Salton Sea currently occupies is not considered historical habitat, then approximately 57 percent (557,072 ha [1,376,525 ac]) of historical habitat remains in the United States.

Johnson and Spicer (1985) estimated that in 1981 approximately 59 percent of the species range occurred in Mexico, with the majority of the range in Mexico occurring in the state of Sonora. However, the distribution of the species in Mexico is poorly understood because few surveys have been conducted to determine where the species occurs in Mexico (CEDO 2001). In Sonora, about 14 percent of the habitat was estimated to be threatened by urban, agricultural or recreational use, and habitat degradation in 1981 (Johnson and Spicer 1985). In Baja California Norte, considerable habitat loss has occurred in the Mexicali Valley, where urban and agricultural development extends from Mexicali to the Colorado River (Johnson and Spicer 1985, Foreman 1997).

The majority (about 60 percent) of the species' range in Mexico lies within two federally protected areas: (1) The Upper Gulf of California and Colorado Delta Biosphere Reserve, and (2) the Pinacate and Gran Desierto de Altar Biosphere Reserve (CEDO 2001). The National Park of Pinacate is an area administered by the Mexican government with use restrictions similar to those in a national park in the United States. The Pinacate area is primarily a volcanic zone within which flat-tailed horned lizard habitat is probably limited to the sandy perimeters of Volcan Pinacate. The Upper Gulf of California Biosphere Reserve includes flat-tailed horned lizard habitat in the vicinity of the Colorado River Delta in Sonora, Mexico.

The flat-tailed horned lizard is most commonly found in sandy flats and valleys in a creosote ( Larrea tridentata )—white bursage ( Ambrosia dumosa ) plant association (Turner et al. 1980; Muth and Fisher 1992; Foreman 1997). Turner et al. (1980) stated the best habitats are generally low-relief areas with surface soils of fine packed sand or pavement, overlain with loose, fine sand. Flat-tailed horned lizards are also known to occur at the edges of vegetated sand dunes, on barren clay soils, and sparse saltbush communities, but Turner et al. (1980) suspected that these recorded occurrences were actually individuals that had dispersed from more suitable habitats. Within a creosote plant community in West Mesa, California, Muth and Fisher (1992) found that flat-tailed horned lizards preferred sandy substrates with white bursage and Emory dalea ( Psorothamnus emoryi ), and avoided creosote and Tequilia plicata . In Arizona, Rorabaugh et al. (1987) found flat-tailed horned lizard abundance correlated with big galleta grass ( Hilaria rigida ) and sandy substrates, but suggested that the presence of sandy substrates were more important than that of big galleta grass.

Several researchers have investigated the relationship between density of perennial plants and flat-tailed horned lizard abundance. The relationships observed varied among studies (Altman et al. 1980, Turner and Medica 1982, Beauchamp et al. 1998). Altman et al. (1980) and Turner and Medica (1982) found the relative abundance of horned lizards was significantly and positively correlated with perennial plant density in creosote-white bursage plant communities. However, Beauchamp et al. (1998) found flat-tailed horned lizards to be present in higher relative densities in sparsely vegetated areas with large patches of concretions, gravel, and silt, than they were in sandy or densely vegetated areas. Altman et al. (1980) also reported finding flat-tailed horned lizards in desert pavement areas. Foley (2002) found little correlation in substrate texture and distribution of flat-tailed horned lizards when using three experimental treatments consisting of sandy, rocky and mixed substrates. However, Grant and Wright (2002) found flat-tailed horned lizard abundance was positively correlated with percentage of sand cover.

Information concerning population dynamics of flat-tailed horned lizard populations is limited and inconclusive. Since 1979, population trends were monitored using a combination of scat counts and lizards observed along transects (Wright 2002). Different methods of transect selection, numbers and experience of observers, numbers of repetitions, and lengths and shapes of transects have been used from year to year (Wright 2002).

The relationship between scat counts and lizard abundance is unclear, or weak at best (Wright 2002). Wright (2002) states that while differences in scat abundance could indicate differences in lizard abundance, the observed decline in the rate at which scat is found could also be a result of an increase in Off-Highway Vehicle (OHV) activity resulting in crushed or buried scat, lower deposition rates, greater wind eradication, different observers, or additional factors. Furthermore, the use of scat counts does not account for variations in lizard activity, misidentification of scat from other species, scat production due to fluctuating food resources, weather conditions that affect scat production or longevity in the field, observer differences, and small sample sizes (Muth and Fisher 1992, Rorabaugh 1994). Consequently, scat abundance may not be positively correlated with lizard abundance under varying conditions (Rorabaugh 1994, Beauchamp et al. 1998). In addition, the use of a relative index, such as scat counts, to indicate population trends is not reliable due to uncorrected bias that exists (discussed further below). Relative index techniques assume that any changes or differences in survey results are proportional to true changes or differences in the populations of interest (Thompson et al. 1998). Thus, due to the significant limitations of scat count data, we consider the use of scat count information useful primarily in determining the distribution and presence of flat-tailed horned lizards.

Two measures of abundance trends ( i.e. , lizards detected per 10 hours, and lizards per transect) used between 1979 and 2001 for the East Mesa, West Mesa, and Yuha Basin, did not include scat data (Wright 2002). No statistically significant trends were found in the rate at which lizards were detected or the number of lizards per transect on any of the areas from 1979 to 2001 (Wright 2002). The measure of lizards per transect has inherent error due to differences in transect lengths surveyed among years. More importantly, the methodologies used between 1979 and 2001 have varied and the data have not incorporated detection probabilities (see Thompson et al. 1998). Because flat-tailed horned lizards are very difficult to find in the field due to their cryptic coloration and behavioral characteristics, incorporating the probability of detecting them into survey results is very important.

Detectability is a common source of bias that is ignored for relative index techniques, such as the techniques used to collect the data between 1979 and 2001. Numerous factors may affect the detectability of animals within selected sampling plots. These include physical structure and cover, weather, individual behavior, and survey methodology. However, it is possible that differences in relative abundance found using uncorrected data may result from only a difference in detectability of animals between areas or within the same area across time (Thompson et al. 1998). Uncorrected bias could seriously affect the validity and usefulness of data in indicating abundance trends (Thompson et al. 1998).

The BLM recently estimated the population size on the Yuha Basin Management Area (MA) (one of five management areas identified in a management strategy for the species) by using capture-mark-recapture (CMR) techniques incorporating detection probabilities (see Thompson et al. 1998, Williams et al. 2002). In the summer (June to August) of 2002, the population of flat-tailed horned lizards for the Yuha Basin MA (24,122 ha [59,605 ac]) was estimated at 18,494 adults (95 percent CI = 14,596 to 22,391) (Grant and Wright 2002) and 8,685 juveniles (95 percent CI = 6,860 to 10,510) (derived from Grant and Wright 2002). “Adults” included all lizards greater than 60 millimeters (mm) (Young and Young 2000), while “juveniles” included all lizards 60 mm or less in snout-to-vent length. Population estimates for the other four MAs using a CMR methodology will be conducted soon, for the first time (Gavin Wright, BLM biologist, pers. comm. 2002).

Greater than 95 percent of the diet of flat-tailed horned lizards consists of ants of the genera Messor, Pogonomyrmex, Conomyrma, and Myrmecocystus (Turner and Medica 1982, Pianka and Parker 1975). Flat-tailed horned lizards are oviparous (egg-laying), early maturing, and may produce multiple clutches within a breeding season (Howard 1974). Flat-tailed horned lizards produce relatively small egg clutches (N = 31; mean clutch size = 4.7; range = 3 to 7; Howard 1974), compared to most other horned lizards (Pianka and Parker 1975). The first cohort hatches in July to August (Muth and Fisher 1992; Young and Young 2000), and in some years a second cohort may be produced (Howard 1974, Young and Young 2000). Hatchlings from the first cohort may reach sexual maturity after their first winter season, whereas hatchlings born later may require an additional growing season to mature (Howard 1974, Young and Young 2000). Flat-tailed horned lizards can live up to at least 6 years in the wild (FTHL-ICC 2002), and up to 9 years in captivity (Baur 1986).

Flat-tailed horned lizards can have relatively large home ranges (Foreman 1997). Muth and Fisher (1992) found the mean home range for lizards (N = 22) was 2.7 ha (6.7 ac) from a minimum of 19 locations in West Mesa. In the Yuma Desert of Arizona, Young and Young (2000) found mean home ranges for males differed between drought and wet years, while those of females did not. The mean home range for males was 2.5 ha (6.2 ac) during a dry year versus 10.3 ha (25.5 ac) during a wet year. Female mean home ranges were smaller at 1.3 ha (3.2 ac) and 1.9 ha (4.7 ac) in dry and wet years, respectively (Young and Young 2000). Young and Young (2000) noted a wide variation in movement patterns, with a few home ranges estimated at greater than 34.4 ha (85 ac).

Flat-tailed horned lizards generally lie close to the ground and remain motionless when approached (Wone 1995); however, but on occasion they may bury themselves in loose sand if it is available (Norris 1949). More rarely they may flee. Their propensity to remain motionless and bury themselves in the sand, along with their cryptic coloration and flattened body, make them very difficult to find in the field (Foreman 1997). During the summer, a flat-tailed horned lizard may escape extreme surface temperatures either by burying the main part of its body below the surface layer (Norris 1949) or by retreating to a burrow (Rorabaugh 1994, Young and Young 2000).

Adult flat-tailed horned lizards are reported to be obligatory hibernators (Mayhew 1965), although individuals have been noted on the surface during January and February (Eric Hollenbeck, Ocotillo Wells SVRA biologist, pers. comm. 2002). Hibernation may begin as early as October and end as late as March (Muth and Fisher 1992). Hibernation burrows appear to be self-constructed (constructed by the lizards themselves versus using burrows constructed by other animals) and are within 10 cm (3.9 in) of the surface (Muth and Fisher 1992). Mayhew (1965) found that the majority of lizards hibernated within 5 cm (2.0 in) of the surface. The greatest depth recorded was 20 cm (7.9 in) below the surface. While most adults apparently hibernate during winter months, some juveniles may remain active (Muth and Fisher 1992).

In June of 1997, seven Federal and State agencies signed a Flat-Tailed Horned Lizard Conservation Agreement (CA) to implement a Flat-tailed Horned Lizard Rangewide Management Strategy (Management Strategy). The purpose of the Management Strategy is to provide a framework for conserving sufficient habitat to maintain several viable populations of the flat-tailed horned lizard throughout the range of the species in the United States. The Management Strategy was developed by an interagency working group over a two-year period. As part of the CA, agencies delineated specific areas under their jurisdiction as Management Areas (MAs). Approximately 181,100 ha (447,600 ac) of the remaining flat-tailed horned lizard habitat managed by signatories of the CA exists within five MAs, which occur in the Borrego Badlands, West Mesa, Yuha Desert, East Mesa, and the Yuma Desert. These managed areas are believed to represent approximately 35 percent of flat-tailed horned lizard habitat remaining in the United States.

The five MAs were designed to identify large areas of public land where flat-tailed horned lizards have been found, as well as to include most flat-tailed horned lizard habitat identified as key areas in previous studies (Turner et al. 1980, Turner and Medica 1982, Rorabaugh et al. 1987, Foreman 1997). MAs were proposed based on accepted principles of good preserve design, utilizing the best information available at the time (FTHL-ICC 2002). Furthermore, the MAs were delineated to include areas as large as possible, while avoiding extensive, existing and predicted management conflicts ( e.g. , OHV open areas). The MAs are meant to be the core areas for maintaining self-sustaining populations of flat-tailed horned lizards in the U.S. (FTHL-ICC 2002).

The flat-tailed horned lizard commonly occurs in additional areas outside of the MAs. These areas include the Ocotillo Wells State Vehicle Recreation Area (Ocotillo Wells SVRA), Coachella Valley, the areas adjoining the Algodones Dunes, and east of the Algodones Dunes between Ogilby and the Mexican border (Norris 1949, Turner et al. 1980, Turner and Medica 1982). The Ocotillo Wells SVRA is currently a Research Area under the Management Strategy, and studies on the flat-tailed horned lizard have been encouraged and funded by the California Department of Parks and Recreation (CDPR) Division of Off-Highway Motor Vehicle Recreation (Foreman 1997).

The majority of the potential flat-tailed horned lizard habitat is within and adjacent to the Algodones Dunes is within the Imperial Sand Dunes Recreation Area. Over 47,754 ha (118,000 ac) of the Imperial Sand Dunes Recreation Area is used as an OHV open area. The majority of the Algodones Dunes north of Highway 78 is a designated wilderness area.

The Coachella Valley has been developed to a much larger extent than any other geographic area within the flat-tailed horned lizard's current range, and does not have nearly as much Federal land as the other areas in which the MAs were established. There are only about 16,610 ha (41,040 ac) of flat-tailed horned lizard habitat remaining, representing 19 percent of the approximately 86,820 ha (214,540 ac) of historical habitat in the Coachella Valley (Katie Barrows, pers. comm. 2002), about 3 percent of the current habitat rangewide in the U.S., and roughly 1 percent of the species range overall, including Mexico (we derive these figures using Hodges' 1997 figure for current habitat within the U.S., and Johnson and Spicer's [1985] estimate of overall range). Of the remaining habitat in the Coachella Valley, only about 2,150 ha (5,314 ac) of suitable flat-tailed horned lizard habitat is estimated to be protected as part of the Coachella Valley Fringe-Toed Lizard Preserve System (Coachella Valley Mountains Conservancy 2001).

Approximately 75 percent of the flat-tailed horned lizard habitat in the Coachella Valley is either private or Tribal land and subject to development in the near future. An area with the largest amount of remaining habitat outside the fringe-toed lizard preserve system is the Big Dune area between Palm Springs and Indian Wells, south of I-10. However, this area is fragmented with major roads and new development ( e.g. , residential housing, shopping centers, Agua Caliente Casino, and California State University of San Bernardino Extension) and is increasingly subject to new development because of its central location within the Coachella Valley.

Signatories of the CA, which include the Service, Bureau of Reclamation (BOR), BLM, U.S. Marine Corps, U.S. Navy, Arizona Game and Fish Department (AGFD), California Department of Fish and Game (CDFG), and CDPR, committed to implementation of conservation measures for the species over the life of the CA. These measures included: (1) Continued monitoring of lizard populations and new surface disturbance within MAs; (2) limitation of new surface-disturbing projects within MAs to 1 percent of the area of MAs between 1997-2002; (3) collection of compensation fees from project proponents who conduct activities within and outside of MAs; (4) reduction in off-highway vehicle (OHV = all vehicles used off-road, including automobiles, dune buggies, motorcycles, all-terrain-cycles, four-wheelers, etc.) routes within MAs; (5) prohibition of off-highway competitive events within MAs; (6) support of continued flat-tailed horned lizard monitoring and research; (7) mitigation for surface-disturbing activities in lizard habitat; and (8) attempting to acquire all private inholdings within MAs. An Interagency Coordination Committee (ICC) and a Management Oversight Group, composed of biologists and managers from CA signatory agencies, respectively, were established to formulate and oversee implementation of the Management Strategy. The signatories agreed to review the CA and its effectiveness annually to determine whether it should be revised. Within a year of completing the tasks identified in the implementation schedule, the involved parties shall review the CA and either modify, renew, or terminate it. The CA may at any time be amended, extended, modified, supplemented, or terminated by mutual concurrence. Participation in the CA/Management Strategy is voluntary, and agencies may withdraw from participation with 60 days' notice. The Management Strategy is currently being revised.

A flat-tailed horned lizard Population Viability Analysis (PVA) was conducted by a conservation team convened both to share research results involving this species and to evaluate the Management Strategy. The preliminary PVA provided no estimate of the minimum viable population size and did not determine whether populations contained within the MAs were viable, due to a lack of population demographic and stochastic ( i.e. , random events relevant to a population) information. However, the analysis illustrated the sensitivity of flat-tailed horned lizard population viability to certain factors, particularly changes in mortality and fecundity. Recommendations in the PVA report included controlling activities that result in mortality of flat-tailed horned lizards and degradation of their habitat. Large management areas were found to be desirable as a conservative approach to ensuring the long-term population persistence.

Based on information obtained since the withdrawal of the proposed listing rule in 1997 and information documented in the proposed rule, we have identified potential threats to the flat-tailed horned lizard, including the following: urban development, agricultural development, OHV activity, energy developments, military activities, introduction of non-native plants, pesticide use, and habitat degradation due to Border Patrol and illegal drive-through traffic along the United States-Mexico border. These threats and their effects on flat-tailed horned lizards and their habitat are discussed in further detail in the section “Summary of Factors Affecting the Species.”

In 1982, we first identified the flat-tailed horned lizard as a category 2 candidate species for listing under the Act (47 FR 58454). Service regulations defined category 2 candidate species as “taxa for which information in the possession of the Service indicated that proposing to list as endangered or threatened was possibly appropriate, but for which sufficient data on biological vulnerability and threats were not currently available to support proposed rules.” In 1989, we elevated the species to category 1 status (54 FR 554). Category 1 included species “for which the Service has on file sufficient information on biological vulnerability and threat(s) to support issuance of a proposed rule.” Subsequently, on November 29, 1993, we published a proposed rule to list the flat-tailed horned lizard as a threatened species pursuant to the Act (58 FR 62624).

On May 16, 1997, in response to a lawsuit filed by the Defenders of Wildlife to compel us to make a final listing determination on the flat-tailed horned lizard, the District Court in Arizona ordered us to issue a final listing decision within 60 days. A month after the District Court's order, several State and Federal agencies signed a CA implementing a recently completed rangewide management strategy to protect the flat-tailed horned lizard. Pursuant to the CA, cooperating parties agreed to take voluntary steps aimed at “reducing threats to the species, stabilizing the species” populations, and maintaining its ecosystem.”

On July 15, 1997, we issued a final decision to withdraw the proposed rule to list the flat-tailed horned lizard as a threatened species (62 FR 37852). We based the withdrawal on three factors: (1) Population trend data did not conclusively demonstrate significant population declines; (2) some of the threats to the flat-tailed horned lizard habitat had grown less serious since the proposed rule was issued; and (3) we believed that the recently approved “conservation agreement w[ould] ensure further reductions in threats.”

Six months following our withdrawal of the proposed listing rule, the Defenders of Wildlife filed a lawsuit challenging our decision. On June 16, 1999, the District Court for the Southern District of California granted summary judgement in our favor upholding our decision not to list the flat-tailed horned lizard. However, on July 31, 2001, the Ninth Circuit Court of Appeals reversed the lower court's ruling and directed the District Court to remand the matter back to us for further consideration in accordance with the legal standards outlined in its opinion. The case was remanded back to us because (1) the withdrawal did not expressly consider whether the flat-tailed horned lizard is likely to become an endangered species within the foreseeable future in a significant portion of its range; and (2) the withdrawal did not “address the lizard's viability in a site-specific manner with regard to the putative benefits of the Conservation Agreement.”

On October 24, 2001, the District Court ordered us to reinstate the previously effective proposed listing rule within 60 calendar days and, thereafter, commence a 12-month statutory time schedule for a final listing decision, and render our final listing determination in compliance with the mandate of the Ninth Circuit Court's order. Accordingly, we published a notice on December 26, 2001, announcing the reinstatement of the 1993 proposed listing of the flat-tailed horned lizard as threatened and the opening of a 120-day public comment period on the reinstated proposed rule (66 FR 66384).

In compliance with our requirements and for the purpose of adequately soliciting public comment, we published legal notices of the reinstatement of the 1993 proposed rule and the opening of the public comment period in the San Diego Union Tribune on January 7, 2002; Imperial Valley Press on January 7, 2002; The Desert Sun on January 8, 2002; and The Yuma Daily Sun on January 7, 2002; inviting the general public to comment. On May 30, 2002, we published a notice reopening the public comment period for an additional 60 days (67 FR 37752) and announced that we would be holding public hearings from 1 to 3 p.m. and from 6 to 8 p.m. on June 19, 2002, in El Centro, California. Additionally, on May 30, 2002, we published public notices in the San Diego Union Tribune, Imperial Valley Press, and The Desert Sun, announcing the June 19, 2002, public hearings in El Centro, California.

On September 24, 2002, we published an additional notice (67 FR 59809) announcing the reopening of the public comment period for 15 days to allow for peer review, additional public comment on the proposed rule, and submittal of information that has become available since our 1997 withdrawal. In this current final determination to withdraw our proposal to list the flat-tailed horned lizard as threatened, we address the Court's order that we determine: (1) Whether the flat-tailed horned lizard is likely to become an endangered species within the foreseeable future in a significant portion of its range; and (2) the lizard's viability in a site-specific manner with regard to the putative benefits of the CA.

In the 3 notices announcing the public comment periods, we requested all interested parties to submit the following types of information pertaining to the flat-tailed horned lizard: current status, ecology, distribution, threats, and management/conservation efforts in place. We requested this information in order to make a new final listing determination based on the best scientific and commercial data currently available. During the three public comment periods, we received written comments from a total of 58 entities, and 10 speakers gave verbal comments at the public hearings.

Substantive information provided in all public comments either has been incorporated directly into this withdrawal or is addressed below. Similar comments are grouped together.

Comment 1: One commenter supported the listing of several populations of flat-tailed horned lizards, including the population in the Coachella Valley and Arizona. The commenter further stated that independent of the proposal to list the flat-tailed horned lizard as a threatened species rangewide, the Coachella Valley population must be listed as an endangered species.

Our Response: In our 1993 proposed rule, we proposed to list the flat-tailed horned lizard as a threatened species throughout its range.

However, under the Act and our regulations, a species will still warrant listing if it is threatened or endangered in a significant portion of its range. As discussed in the “Finding” section of this withdrawal, we have determined that the flat-tailed horned lizard is not threatened throughout all or a significant portion of its range.

We considered whether the flat-tailed horned lizard population in the Coachella Valley would warrant listing pursuant to our joint Service and National Marine Fisheries Service Policy Regarding the Recognition of Distinct Vertebrate Population Segments (61 FR 4722). According to this policy, to be listed as distinct vertebrate population segments populations have to qualify as both “discrete” and “significant.”

A population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions: (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors; or (2) it is delineated by international government boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act. If a population segment is considered discrete under one or more of the above conditions, its biological and ecological significance will then be considered. Significance is determined by the importance or contribution, or both, of a discrete population to the species throughout its range. The policy (61 FR 4722) lists four examples of factors that may be used to determine significance: (1) Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon; (2) evidence that loss of the discrete population segment would result in a significant gap in the range of the taxon; (3) evidence that the discrete population segment represents the only known surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range; and (4) evidence that the discrete population segment differs markedly from other populations of the taxon in genetic characteristics. In carrying out this analysis, the Service will consider available scientific evidence of the discrete population segment's importance to the species as a whole.

If a population segment is found to be discrete and significant ( i.e. , it is a DPS) its evaluation for endangered or threatened status will be based on the Act's definitions of those terms and on a review of the species' status relative to the factors described in section 4(a)(1) of the Act for listing a species as endangered or threatened.

As outlined in this withdrawal, we currently believe there are four disjunct geographic areas occupied by flat-tailed horned lizards. They are disjunct due to fragmentation of habitat by agricultural and urban development, the Salton Sea, and the Colorado River. We recognize that of the four geographically discrete populations, the Coachella Valley population is the smallest and most fragmented by development and roads, and faces existing and future threats to the remaining habitat. Current scientific evidence does not suggest that the Coachella Valley population is genetically, behaviorally, or ecologically unique; is a large population of flat-tailed horned lizards; or contributes individuals to other geographic areas through emigration. Therefore, we conclude that this population, even if discrete, is not significant within the meaning of the DPS policy. If additional information becomes available that indicates the Coachella Valley population is biologically or ecologically significant pursuant to the Policy Regarding the Recognition of Distinct Vertebrate Population Segments (61 FR 4722), we may reconsider the status of the Coachella Valley population for the purpose of listing under the Act. At this time, the threats to the remaining populations (as described below) do not suggest that they warrant consideration for listing as a separate DPS.

Comment 2: One commenter noted that the population of flat-tailed horned lizards in the Coachella Valley is isolated from all other populations and is at the northern limit of the species range, and that preliminary genetic work being conducted at Utah State University suggests that the Coachella Valley population has a unique genetic structure.

Our Response: We agree that the population of flat-tailed horned lizards in the Coachella Valley is isolated from all other populations, and is at the northern limit of the species range. We have contacted the Utah State University scientist who is conducting the genetic research on the species, and he indicated that the work is still ongoing and that no conclusions have been drawn yet on the genetic structure of flat-tailed horned lizard populations.

Comment 3: Several commenters have remarked on the apparent lack of implementation of the planning actions in the Management Strategy, and its overall ineffectiveness with regards to conservation of flat-tailed horned lizard populations.

Our Response: There are nine planning actions with associated subactions. The Management Strategy states that it is understood among the signatories that implementation of these actions is subject to availability of funds and compliance with all applicable regulations. The implementation of the planning actions from May 1997 through June 2002 was as follows.

Planning Action 1: Delineate and designate five flat-tailed horned lizard MAs and one flat-tailed horned lizard research area. Management Areas have not been fully designated, although participating agencies have continued to recognize the boundaries of MAs. Precise boundary descriptions have been completed. Naval Air Facility-El Centro has designated the portions of the MAs under Department of Defense jurisdiction through the Naval Air Facility-El Centro Integrated Natural Resources Management Plan. In order to implement the Management Strategy, the Yuma and El Centro BLM field offices have drafted a document entitled “The Proposed Amendment to the California Desert Conservation Area Plan and the Yuma District Resource Management Plan to Expand the East Mesa ACEC, West Mesa ACEC, and Gran Desierto Dunes ACEC Boundaries and To Implement the Flat-Tailed Horned Lizard Rangewide Management Strategy in Imperial County, California and Yuma County, Arizona.” An Environmental Assessment (EA No. CA-067-EA-1998-023) was associated with the proposed amendment, and is still in the process of being finalized. Public scoping meetings concerning the proposed amendment were held. While the environmental assessment has not been completed, the Conservation Agreement has been signed and the Management Strategy has been implemented to the degree mentioned below.

Planning Action 2: Define and implement management actions necessary to minimize loss or degradation of habitat. Most subactions were implemented as follows. Appropriate mitigation measures were enforced for all authorized projects that impacted flat-tailed horned lizards or their habitat. Compensation funds were required for most projects that had residual impacts to flat-tailed horned lizard habitat. The limit of discretionary land use authorizations (not including impacts from OHV activity) to 1 percent cumulatively for each MA was not exceeded. No disposal of lands within MAs occurred. No new roads were authorized in MAs. Members of the ICC for the Management Strategy held several flat-tailed horned lizard orientation sessions with Border Patrol agents in the Yuma and El Centro sectors to reduce impacts to flat-tailed horned lizard habitat along the international border. The BLM El Centro office implemented an aggressive education strategy with Border Patrol to reduce impacts to flat-tailed horned lizard habitat. Competitive off-highway vehicle races have not been permitted in MAs. No new recreation facilities were allowed in MAs. A camping closure was implemented and enforced as mitigation in the East Mesa MA. However, important subactions to designate routes “open,” “closed,” or “limited;” to reduce route density; and to limit camping to within 15 m (50 ft) from the centerline of a designated open route in MAs were not implemented; or were implemented to a limited degree. The effects of this inaction are discussed under Factor A of the section “Summary of Factors Affecting the Species.”

Planning Action 3: Rehabilitate damaged and degraded habitat in MAs. BLM staff have been rehabilitating routes inside the Yuha Basin MA. They have focused on proliferation (unauthorized development of new routes by users) and parallel routes off of designated routes; and have rehabilitated approximately 32 to 40 km (20 to 25 mi) of non-designated routes.

Planning Action 4: Attempt to acquire through exchange, donation, or purchase from willing sellers all private lands within MAs. Lists prioritizing parcels for acquisition have been maintained by the California OHV Division office headquarters in Sacramento and by BLM's El Centro office. BLM's El Centro office has contacted all landowners within the East Mesa MA to advise them of BLM's desire to acquire their lands through purchase or exchange. Approximately 6,273 ha (15,500 ac) of Arizona State land within the Yuma Desert MA was acquired by the Department of Defense, a signatory to the Management Strategy. Consequently, all land within this MA is owned by signatory agencies. Anza Borrego Desert State Park acquired private lands totaling 299 ha (740 ac) within and adjacent to the Borrego Badlands MA. BLM-El Centro acquired 97 ha (240 ac) within the East Mesa MA and 32 ha (80 ac) within the West Mesa MA. California Department of Transportation has purchased one section (259 ha [640 ac]) in the northern portion of the West Mesa MA as compensation for a project outside the MAs. This section may be conveyed to BLM in the future.

Planning Action 5: Maintain or establish effective habitat corridors between naturally adjacent populations. No new corridors have been established, but no new projects were authorized that would block movement across existing corridors between MAs. Currently, MAs that may still be connected by corridors include the Borrego Badlands MA, West Mesa MA, and Yuha MA. An OHV open area and I-8 lie between West Mesa and the Yuha MAs, but two underpasses may facilitate some movement between these MAs. All corridors across the U.S.-Mexico border are currently intact, according to the ICC.

Planning Action 6: Coordinate activities and funding among the participating agencies and Mexican agencies. The signatory agencies formed the ICC, which has met quarterly to discuss implementation of planning actions under the Management Strategy. The signatory agencies also formed a Management Oversight Group to provide management-level leadership, coordination, and oversight in the implementation of the Management Strategy. A study to investigate the distribution of flat-tailed horned lizards in Sonora and Baja California, Mexico, was initiated with funding from BOR and BLM.

Planning Action 7: Promote the purposes of the strategy through law enforcement and public education. Annual reports (ICC 1999 a , ICC 1999 b , ICC 2002) stated that insufficient law enforcement personnel were available to prevent most of the illegal off-highway vehicle traffic and illegal dumping that occurs in the West Mesa, Yuha Basin, and East Mesa MAs. The annual reports state that given the funding situation of most of the agencies involved, sufficient law enforcement is unlikely to occur. Information pamphlets addressing the flat-tailed horned lizard were prepared by the CDPR staff at Ocotillo Wells SVRA and Naval Air Facility El Centro and distributed to relevant agencies and the public. Flat-tailed horned lizard signs were posted on most access points into the Yuma Desert and East Mesa MAs. BLM's El Centro office produced range-user brochures and wallet cards to educate all range users of the presence of flat-tailed horned lizards and procedures to avoid impacting lizards and to report any accidental impacts to lizards.

Planning Action 8: Encourage and support research that will promote the conservation of flat-tailed horned lizards or desert ecosystems and will effectively define and implement necessary management actions, both within and outside of MAs and the Research Area. Ocotillo Wells SVRA funded four studies (Young 1999, Setser and Young 2000, Setser 2001, and Gardner 2002) to collect information on flat-tailed horned lizard demographics, habitat use, and the effects of OHV activity. Various sampling methodologies to assess population trends were tested. ICC members consulted with Colorado State University regarding monitoring population trends. Flat-tailed horned lizard life history and demographic data were collected by several researchers from Utah State University. In 2001, BLM's El Centro office conducted a pilot CMR study that led to a population estimate study in 2002 for the Yuha Basin MA. Tissue samples were taken from the disjunct populations throughout the range of the flat-tailed horned lizard and are to be analyzed by Utah State University to determine any genetic differences between populations.

Planning Action 9: Continue Inventory and Monitoring. BLM's Palm Springs office conducted surveys in the Coachella Valley. Surveys were also conducted across Baja Norte and Sonora, Mexico, with the help of ICC personnel and funding from BOR and BLM. Additional surveys were conducted along the peripheral areas of the Borrego Badlands MA. Surveys of flat-tailed horned lizards and their scat continued on MAs each year between 1997 and 2001. ICC annual reports monitored the habitat loss authorized by Management Strategy/CA signatories. The Navy contracted Tierra Data Systems in 1997 to take aerial photographs and digitally map the five MAs and the Research Area to document habitat loss and disturbance. The El Centro BLM office quantified vehicular impacts at a finer resolution than Tierra Data Systems by using a step-point method on the West Mesa, Yuha Basin, and East Mesa MAs. A similar analysis was conducted in the Yuma MA by the Service and the Arizona Game and Fish Department.

In conclusion, while the Management Strategy has resulted in actions that provide protections for the flat-tailed horned lizard and has contributed to reductions in particular threats to the species (see Factor D below), the stated objectives of the Management Strategy have not yet been fully achieved. Specifically, the four of the Management Strategy's priority 1 planning subactions have not been fully implemented. These are the following: (1) Finalizing the designations of the MAs; (2) reducing route densities in MAs; (3) signing routes closed, limited, or open; and (4) providing adequate law enforcement.

Comment 4: One commenter stated that one of the management areas is within the boundaries of an ORV Open Area (Ocotillo Wells SVRA) and asked what has been done on the ground in the Ocotillo Wells SVRA to actually protect the lizard's habitat.

Our Response: None of the Management Areas contains OHV open areas. The Ocotillo Wells SVRA is designated as a Research Area and is not a designated Management Area under the Management Strategy. The Ocotillo Wells SVRA was not established to protect the flat-tailed horned lizard's habitat. It is one of six State Vehicular Recreation Areas within California that serve as OHV parks for the public. While OHV freeplay, racing, and touring are permitted, the Ocotillo Wells SVRA prohibits most permanent surface disturbing activities. In order to encourage studies on the flat-tailed horned lizard, the Ocotillo Wells SVRA was proposed as a Research Area in the Management Strategy. Funding was to be provided by the California Department of Parks and Recreation Division of Off-Highway Motor Vehicle Recreation.

Comment 5: One commenter stated that large areas within the BLM-managed deserts of California and Arizona, as well as significant portions of Anza-Borrego Desert State Park and the Ocotillo Wells SVRA, have been closed to protect the flat-tailed horned lizard and its habitat from OHV intrusion.

Our Response: No areas have been closed to OHV use to protect the flat-tailed horned lizard or its habitat. Within the Anza-Borrego Desert State Park, OHV activity is limited to designated routes. Most of the BLM managed lands within the range of the flat-tailed horned lizard are currently open to OHV use in some capacity. The entire Ocotillo Wells SVRA is open to OHV use in some form, and the majority is completely open to freeplay (unlimited access and use). The Ocotillo Wells SVRA is in fact the largest of the State Vehicular Recreation Areas in California, comprising approximately 85 percent of land in the program. In addition, there are two BLM Open Areas that have unrestricted OHV use, the BLM's Plaster City (16,592 ha [41,000 ac]) and Superstition Hills (5,261 ha [13,000 ac]) Open Areas.

Comment 6: One commenter mentioned that the data show a weak, almost nonexistent correlation between OHV use and alleged declines in flat-tailed horned lizard populations, and that by contrast, other threats such as predation by ravens, shrikes, and round-tailed squirrels have been substantiated with hard evidence.

Our Response: Past indices of population abundance of the flat-tailed horned lizard have not used similar methodologies, nor have they incorporated detection probabilities. Population trends based on such data potentially include error related to numerous variables, including variation in detectability, scat counts, sampling methods, study areas sampled, number of transects surveyed, number of observers, temperature, year, etc. The BLM (Wright 2002) reported data that can be used as an indication of abundance from 1979 to 2001 and the correlation of OHV activity and population abundance, conditional on a number of assumptions.

Wright (2002) reported that flat-tailed horned lizards were encountered at the highest rates in the Navy and Limited use areas of West Mesa, at intermediate rates in the Yuha Desert and East Mesa, and at the lowest rates in the West Mesa ACEC, Plaster City, and Superstition Mountains Open Areas. If detection rates were assumed to be equal across all variables involved, then an inference could be made that the areas used most by OHVs, the open areas, have the lowest abundance of flat-tailed horned lizards. If we assume that the main difference between open and the other areas is a higher rate of use of open areas by OHVs, we could reasonably conclude that OHV impacts were responsible for this difference. However, the previously mentioned bias and error associated with the data collection make this inference weak and unreliable.

Further hypothesis testing of the relationship of OHV use and flat-tailed horned lizard abundance incorporating detection probabilities in a rigorous sampling design would be valuable. The BLM has recognized the importance of incorporating detection probability into their flat-tailed horned lizard sampling designs and has recently employed such a design to estimate population size in the Yuha Basin MA, referred to previously in the “Background” section of this notice.

OHV activity has also been documented as the direct cause of mortality of individual flat-tailed horned lizards (Luckenbach 1975; Luckenbach and Bury 1983; Muth and Fisher 1992). However, the number of documented flat-tailed horned lizard mortalities due to OHVs is limited.

The fact that ravens, shrikes, and round-tailed squirrels have been documented as predators of flat-tailed horned lizards does not make them threats to the survival of the species. We assume that flat-tailed horned lizards have coevolved in a predator-prey relationship with most of the predators they encounter in the Sonoran Desert. There are no data showing that round-tailed ground squirrels or other predators depend on flat-tailed horned lizards as a primary food source. To the contrary, round-tailed ground squirrels are omnivorous and rely on plant material for a major part of their diet (Ernest and Mares 1987).

Anthropogenic threats ( i.e. , human caused habitat destruction and degradation; e.g. , OHV activity) and introduced predators or competitors are generally regarded as more severe threats to the survival of native species than are predators or interspecific competition with which the species has coevolved (Pimm et al. 1995). There is also the potential for natural predators to increase their predation rate on certain prey given human subsidies available. For example, increased predation rates on flat-tailed horned lizards by loggerhead shrikes and American kestrels have been reported in localized areas where human-provided perches ( e.g. , power lines or planted palm trees) have been used by shrikes and kestrels as points from which to hunt (Young and Young 2000, Cameron Barrows pers. comm, 2002). However, areas in which these increased predation rates occur are small in size and occur within relatively short distances of the perches in the abovementioned examples.

Comment 7: One commenter stated that it is absolutely critical that we not issue a final decision until after we have conducted the studies necessary to address flat-tailed horned lizard abundance and viability on private lands. The commenter further recommended that all future studies do the following: (1) Abandon scat counts as a way of deriving species densities, (2) use different, more reliable methods for counting flat-tailed horned lizards, and (3) be repeatable over time, so that trend data on the lizard can be developed.

Our Response: The schedule for the final listing determination was mandated by the Southern District Court of California under the direction of the Ninth Circuit Court of Appeals, to be made within 12 months of reinstating the proposed listing. A notice announcing the reinstatement of the 1993 proposed rule was published in the Federal Register on December 26, 2001. Consequently, on the basis of the best scientific and commercial data currently available, we must make a final listing determination for the flat-tailed horned lizard by December 26, 2002.

While our listing determination undoubtedly would be aided by further studies on flat-tailed horned lizards, we can not delay the decision. Additionally, we do not currently have the funding to conduct additional research prior to making our decision. Despite this shortcoming, several of the commenter's recommendations have already been enacted. We have not used any scat count information to derive lizard density or abundance estimates, and the BLM has begun to use the previously mentioned CMR methodology to conduct population estimates on the MAs, which can then be replicated in the future to gain information on population trends.

Comment 8: One commenter remarked that a large flaw in the management strategy was that little or no baseline data were gathered on the abundance of the lizard or the condition of its habitat at the time the conservation agreement was put in place.

Our Response: While there were no data leading to population estimates, there were data gathered on flat-tailed horned lizard abundance using transects between 1979 and 1997, as discussed previously. In addition, the U.S. Navy (signatory agency) funded aerial photography of the MAs, and Tierra Data Systems subsequently analyzed the photographs to establish baseline levels of surface disturbance within MAs. We have since analyzed aerial photos taken in 2002 in an attempt to document disturbance on MAs using a methodology similar to that used by Tierra Data Systems in 1997. We then compared the 1997 disturbance information to that of 2002 to assess the change in amount of disturbance during that time period. The results of this comparative analysis can be found under our discussion of Factor A in the Summary of Factors Affecting the Species.

Comment 9: Several commenters have expressed concern that Border Patrol is not a signatory to the Conservation Agreement associated with the Management Strategy, and that its activities pose one of the main threats to the flat-tailed horned lizard.

Our Response: The Border Patrol declined the opportunity to sign the CA, but has encouraged education of new agents and continues to coordinate with signatory agencies to identify ways to reduce the impacts of Border Patrol activities. ICC members held several flat-tailed horned lizard orientation sessions with Border Patrol agents in the Yuma and El Centro sectors to reduce impacts to flat-tailed horned lizard habitat along the international border. These briefings were designed to familiarize Border Patrol agents with flat-tailed horned lizard natural history, habitat requirements, and the importance of minimizing vehicular traffic off of designated patrol routes/roads, and were well received by Border Patrol personnel. However, the Border Patrol's OHV activities and their impacts on flat-tailed horned lizard conservation have not been monitored and assessed.

Comment 10: One commenter remarked that while the MAs may be large enough to ensure viability of the species, because only approximately 35 percent of the current range of the flat-tailed horned lizard is included in the MAs, the species will at some point cease to be a part of the ecological community.

Our Response: Assessing a species' role in an ecosystem is often a complex task. We believe that the flat-tailed horned lizard will continue to be a self-sustaining, functioning component of their ecosystem into the foreseeable future. The roughly 65 percent of the current range of the flat-tailed horned lizard found outside of the MAs, if not developed, may continue to serve as habitat for flat-tailed horned lizard populations.

Much of the habitat outside the MAs is managed by Federal agencies such as the BLM, or the State. These agencies have the capacity to manage their lands to conserve flat-tailed horned lizard habitat into the future. The Management Strategy is applied to lands owned or managed by Federal signatories outside MAs as well, albeit to a lesser degree than is done for lands inside MAs. BLM lands outside of designated open areas are managed for limited use under the California Desert Conservation Area Plan. The flat-tailed horned lizard is also a sensitive species in the California Desert Conservation Area Plan, which states the goal for such designated species is to manage the species and their habitats so that the potential for Federal or State listing is minimized. In addition, the BLM must adhere to directives such as Executive Orders 11644 and 11989, which established policies and provided for procedures to control and direct, among other things, the use of OHVs on Federal lands in order to protect the resources of those lands.

Any habitat within the current range of the flat-tailed horned lizard that is in the Anza-Borrego Desert State Park is managed favorably for the conservation of the flat-tailed horned lizard, because of the emphasis placed on resource protection and regulations limiting OHV activity to designated trails. Some of the California state land outside the MAs is in the Ocotillo Wells SVRA. The mission of the Off-Highway Motor Vehicle Recreation Division (CSDPR 2002) includes insuring “that quality recreational opportunities remain available for future generations by providing for education, conservation, and enforcement efforts that balance OHV recreation impact with programs that conserve and protect cultural and natural resources.” In addition, projects on State lands must adhere to the California Environmental Quality Act (CEQA). CEQA requires a full public disclosure of the potential environmental impact of proposed projects. Moreover, there is no evidence of private lands in flat-tailed horned lizard habitat being developed at a rate that would pose a significant threat to the species or its habitat, except in the Coachella Valley.

In the Coachella Valley, Regional Habitat Conservation Plans in preparation by the Coachella Valley Association of Governments and the Agua Caliente Band of Cahuilla Indians would conserve a yet-to-be-determined amount of flat-tailed horned lizard habitat, leaving the rest subject to development. However, these Habitat Conservation Plans are in progress and are subject to approval in the future; therefore, their completion and implementation cannot be relied upon for conservation purposes.

Comment 11: One commenter responded that BLM studies have shown that flat-tailed horned lizard populations have remained at levels found in the 1970s, regardless of the increased use of the desert by Border Patrol, OHVs, and other development.

Our Response: The BLM population trend data from the 1970s until 2001 used scat counts, which have been acknowledged to be unreliable indicators of lizard abundance (Muth and Fisher 1992, Rorabaugh 1994, Beauchamp et al. 1998) that should not be used to analyze population trends. Other problems associated with these studies have been stressed in our response to comment 6. In 2002, the BLM started to use the CMR methodology (described previously) incorporating detection probability to estimate population sizes on the MAs. This is a much more reliable and promising methodology that BLM will continue using in the future to monitor population trends. The increased use of the desert by Border Patrol, OHVs, and other development and the resulting effects on flat-tailed horned lizard populations has been difficult to monitor. Intuitively, we know these impacts cannot keep increasing without resulting in negative impacts to habitat. However, based on the best available information, we have determined that such possible negative impacts do not currently, or in the foreseeable future, pose a threat to the species. Land use thresholds resulting in population declines can only be derived through sound research and monitoring. See also discussion in Factor A below.

Comment 12: Several commenters stated that we should take economic impacts into consideration when we decide whether to list the flat-tailed horned lizard, because the areas surrounding the lizard's habitat are in danger of suffering economic harm should the listing and any resulting land use restrictions occur.

Our Response: The Act requires us to make listing determinations solely on the basis of the best scientific and commercial data available after conducting a review of the status of the species (section 4(b) of the Act). Congress also made it clear in the Conference Report accompanying the 1982 amendments to the Act that “economic considerations have no relevance to determinations regarding the status of species.” We do not consider economic impacts in the listing process, except when designating critical habitat; during this latter process, we conduct an economic analysis.

Comment 13: One commenter noted that reported habitat loss resulting from urbanization may not be accurate, because cities such as Imperial, El Centro, and Brawley have alkali, heavy clay, and silty clay soils, respectively; and these soil types are not preferred habitat for the flat-tailed horned lizard.

Our Response: These soils and habitats in Imperial Valley may not have been preferred or high quality habitat for the flat-tailed horned lizard, but they still more than likely provided habitat of some quality. Historically, the Imperial Valley may not have consisted of contiguous habitat quality but probably consisted of a patchy mosaic of different qualities of flat-tailed horned lizard habitat, as is seen today in the different geographic areas. Flat-tailed horned lizards do not require fine sandy habitats as was described in the past, but appear to be more flexible in their use of different soil types (Beauchamp et al. 1998). They have been found to occur on clay soils (Turner et al. 1980); concretions, gravel, and silt (Beauchamp et al. 1998); and desert pavement areas (Altman et al. 1980); in addition to the fine sandy habitats in which they are commonly found. They have even been found on the rocky lower slopes of Superstition Mountain coexisting with chuckwallas (Turner et al. 1980). Furthermore, the areas the commenter notes above may have been beneficial to populations for reasons other than providing quality habitat ( e.g. , corridors or “stepping stones” providing gene flow among populations). Flat-tailed horned lizards have been documented in what are now the towns of Westmorland, Seeley, and Holtville (Klauber 1932).

Comment 14: A few commenters noted that although the Management Strategy and Conservation Agreement were produced in 1997, an environmental assessment to officially authorize the Management Areas has not been completed.

Our Response: While this is true, the Yuma and El Centro BLM field offices drafted a document to implement the Management Strategy. This document is “The Proposed Amendment to the California Desert Conservation Area Plan and the Yuma District Resource Management Plan to Expand the East Mesa ACEC, West Mesa ACEC, and Gran Desierto Dunes ACEC Boundaries and to Implement the Flat-tailed Horned Lizard Rangewide Management Strategy in Imperial County, California, and Yuma County, Arizona.” An environmental assessment (EA No. CA-067-EA-1998-023) is attached to this proposed amendment. Public scoping meetings concerning this proposed amendment have been held, and work is in progress to finalize the environmental assessment. While the environmental assessment has not been completed, the Conservation Agreement has been signed, and the Management Strategy has been implemented to the degree mentioned previously.

In accordance with our July 1, 1994, Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities (59 FR 34270), we solicited the expert opinions of six independent specialists. The Policy for Peer Review states that it is the policy of the Service to incorporate independent peer review in listing decisions during the public comment period in the following manner: (1) Solicit the expert opinions of a minimum of three appropriate and independent specialists regarding pertinent scientific and commercial data and assumptions relating to the taxonomy, population models, and supportive biological and ecological information for species under consideration for listing; and (2) summarize in the final decision document the opinions of all independent peer reviewers received on the species under consideration. The purpose of such review is to ensure that listing decisions are based on scientifically sound data, assumptions, and analyses, including input of appropriate experts and specialists.

We specifically asked the reviewers to review both our proposal to list the flat-tailed horned lizard as threatened (58 FR 62624) and our subsequent withdrawal of the proposed rule (62 FR 37852), and also to provide comments and information on the following issues: (1) Any additional data that may assist us in making our listing decision, (2) the status and threats to the species—in particular, the four geographic areas in which the species occurs in the United States, and (3) the effectiveness of the conservation strategy to provide adequate protection and management for the species. Four peer reviewers responded to our solicitation.

One reviewer noted that his comments are limited to the Coachella Valley population and stated that the Coachella Valley has experienced higher levels of urbanization and habitat fragmentation than any of the five MAs identified in the Management Strategy. The reviewer mentioned that the Coachella Valley historically had a substantial flat-tailed horned lizard population and that the largest remaining unfragmented habitat patch represents just 3 to 4 percent of its original extent. The reviewer stated that the Management Strategy has had no apparent benefit within the Coachella Valley, because there is no MA established within the Coachella Valley due to the lack of public land containing flat-tailed horned lizard habitat.

Two reviewers recommended the species be listed as threatened, as proposed in 1993, and the fourth reviewer recommended the species not be listed. The two reviewers who recommended listing the species stated that more research was necessary on the demographics of flat-tailed horned lizard populations.

One reviewer's opinion was that if immediate and strong action is not taken, the species is likely to disappear in most or all of its range in the immediate future. However, this reviewer noted that critical demographic data necessary to demonstrate population stability are still lacking. The reviewer remarked that the quality of data on flat-tailed horned lizards is so poor that all analyses are suspect. The following recommendations for continued research relevant to developing the necessary information to make a convincing argument for listing this species were offered: (1) Long-term capture-recapture data; (2) phylogeography studies to determine historic patterns of dispersal and present effects of fragmentation; (3) comparative ecological studies in areas impacted by chemicals that might affect ant populations versus areas where no detectable affects of insecticide exist; (4) physiological studies to determine whether dietary shifts (away from ants) might negatively effect growth rates and size at sexual maturity; and (5) close examination of the illegal OHV threat with the intent of developing a strategy of effective enforcement.

One reviewer, who has conducted research on flat-tailed horned lizards in Arizona and California, expressed that the designated MAs and the current protective measures are adequate, and the species does not warrant Federal listing as threatened. This reviewer stated that the main reason that the species does not warrant Federal listing is that even without population estimates for the MAs, it is reasonable to believe there are large, viable, self-sustaining populations that are being protected in the MAs.

We respectfully disagree with the two reviewers who recommended listing the flat-tailed horned lizard rangewide, because we do not feel the available data indicate that the species is likely to become endangered within the foreseeable future throughout all or a significant portion of its range. While one reviewer stated that critical demographic data necessary to demonstrate population stability are still lacking, reliable demographic data showing population declines are also lacking.

Section 4 of the Act (16 U.S.C. 1531 et seq. ) and the regulations (50 CFR part 424) that implement the listing provisions of the Act set forth the procedures for adding species to the Federal list of endangered and threatened species. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act. These factors and their application to the flat-tailed horned lizard rangewide are discussed below.

There were some threats of habitat loss and modification identified in the 1993 proposed rule that have been reduced since 1993 or for which we have limited new information since 1993. The proposed rule stated that 95 percent of the remaining optimal habitat in California is threatened by one or more impacts, and that urban growth is an important component of these threats. At this time, habitat loss due to urbanization does not appear to be a significant threat in the foreseeable future, due to Federal and State land ownership of most of the remaining habitat, with the exception of that in the Coachella Valley and Borrego Valley. The Imperial Valley has been developed up against the borders of MAs, and additional BLM lands on both sides of the Imperial Valley largely prevent further urban and agricultural development. The proposed rule also mentioned gold mining as a potential threat. There are currently no gold mines in flat-tailed horned lizard habitat, and gold mines are not expected to become a threat in the foreseeable future.

The relative abundance index that was used in the 1993 proposed rule to document a decline in the Yuha Desert has since been found to be based on erroneous assumptions and inconclusive data. The information on population trends presented in the proposed rule was derived in part from scat count data collected between 1979 and 1991. The use of scat counts for this purpose has problems that were previously mentioned in the Background section of this rule, and therefore we do not consider scat counts scientifically reliable as indicators of population abundance. At this time, the available data do not indicate that populations of flat-tailed horned lizard are declining or threatened in any of the geographic areas, with the exception of the Coachella Valley, discussed later.

The distribution of the flat-tailed horned lizard was described by Turner and Medica (1982) as the desert areas of southeastern California and southwestern Arizona and adjoining portions of Sonora and Baja California Norte, Mexico. The historical distribution of the flat-tailed horned lizard in California was arguably connected to an unknown extent from the Imperial Valley north through the Coachella Valley. Locality records report flat-tailed horned lizards occurring within the Imperial Valley in the towns of Westmorland, Seeley, and Holtville (Klauber 1932). Bryant (1911) reported locality records from Mecca (southern end of Coachella Valley) and “Salton Lake.” The development of the Imperial Valley and southern half of the Coachella Valley for agriculture and urbanization, and the filling up of the Salton Sea, have essentially fragmented the range of the flat-tailed horned lizard in California into the following disjunct areas: (1) Coachella Valley, (2) west side of Salton Sea and Imperial Valley, and (3) the east side of the Imperial Valley. Additionally, the Colorado River separates the Arizona population of flat-tailed horned lizards from populations in California. Consequently, we will further analyze Factor A using the four disjunct areas within the United States: (1) Coachella Valley, (2) west side of Salton Sea/Imperial Valley, (3) east side of Imperial Valley, and (4) Arizona.

There has been substantial loss and fragmentation of flat-tailed horned lizard habitat within the Coachella Valley. We use the term fragmentation to refer to the breaking up of a habitat or ecosystem into smaller parcels (Foreman 1997). Fragmentation stems from Interstate 10 (I-10), which runs through the middle of the Coachella Valley; an associated network of roads south of I-10; and associated urban and agricultural development. An important effect of habitat fragmentation is the decreased movement of a species ( i.e. , the flat-tailed horned lizard) across a landscape. Some highways, such as I-10, act as complete barriers to movement of flat-tailed horned lizards. Other roads may decrease the probability that flat-tailed horned lizards will cross the road, or may result in increased mortality rates for flat-tailed horned lizards within an unknown distance of roads. The decrease in movement of flat-tailed horned lizards due to roads can have negative impacts to local populations, including: (1) Decreased dispersal rates of juveniles, (2) decreased likelihood for rescue of small populations due to immigration, (3) decreased genetic flow between local populations, and (4) other unknown impacts to a population's spatial structure.

The amount of contiguous and total habitat remaining in the Coachella Valley is far less than that found in the other three geographic areas. There are about 16,610 ha (41,040 ac) remaining, which represent 19 percent of the approximately 86,820 ha (214,540 ac) of historical habitat in the Coachella Valley (Barrows, pers. comm. 2002), and about 3 percent of the current habitat rangewide in the U.S. (We derive these figures using Hodges 1997 figure for current habitat within the U.S.) Approximately 75 percent of the flat-tailed horned lizard habitat in the Coachella Valley is either private or Tribal land and subject to development in the near future. The remainder is either in Federal or State ownership. Between 1996 and 2002, an estimated 2,428 ha (6,000 ac) of flat-tailed horned lizard habitat was developed in the Coachella Valley (Kim Nicol, CDFG biologist, pers. comm. 2002).

The largest patch of habitat is on the Coachella Valley Preserve and consists of about 1,480 ha (3,660 ac). In total, there are about 2,150 hectares (5,314 acres) of suitable flat-tailed horned lizard habitat that are protected as part of the Coachella Valley Fringe-Toed Lizard Preserve System (Coachella Valley Mountains Conservancy 2001). An area with the largest amount of remaining habitat outside the fringe-toed lizard Preserve System is the Big Dune area between Palm Springs and Indian Wells, south of I-10. However, this area is fragmented with major roads and new development ( e.g. , residential housing, shopping centers, Agua Caliente Casino, and California State University of San Bernardino Extension) and is increasingly subject to new development because of its central location within the Coachella Valley.

Regional Habitat Conservation Plans in preparation by the Coachella Valley Association of Governments and the Agua Caliente Band of Cahuilla Indians would conserve a yet-to-be-determined amount of flat-tailed horned lizard habitat and the rest would be subject to development. However, these Habitat Conservation Plans are in progress and are subject to approval in the future; therefore their completion and implementation cannot be relied upon for conservation purposes.

This geographic area spans from Borrego Valley east to Salton Sea, and south to the border with Mexico, bounded on the west by the Peninsular Mountain ranges and to the east by the Salton Sea and agricultural development of the Imperial Valley. The majority of the private land that is potential flat-tailed horned lizard habitat is in the Borrego Valley and Ocotillo Wells area just south of State Route (SR) 78, west of the West Mesa MA. The geographic area contains three MAs (Borrego Badlands, West Mesa, and Yuha Basin) and the Ocotillo Wells SVRA research area.

This geographic area is fragmented from north to south by SR22, SR78, Interstate 8 (I-8), and SR98. Habitat loss has also resulted from the towns of Borrego Springs, Salton City, Ocotillo Wells, and Ocotillo. The largest of these towns is Borrego Springs, with a population of approximately 3,000 people. Due to the small size of these towns, it is unlikely that urban or agricultural development in or around these small towns is a significant threat to the flat-tailed horned lizard or its habitat in the foreseeable future.

The Borrego Badlands MA is composed of about 17,159 ha (42,400 ac), of which 14,771 ha (36,500 ac) is habitat managed by signatories to the Management Strategy/CA, and 2,388 ha (5,900 ac) are private land. When we compared habitat disturbance and loss from aerial photographs taken in 2002 with the habitat loss and disturbance documented by Tierra Data Systems in 1997, we found that the length of dirt roads had slightly increased from 154 kilometers (km) (96 miles [mi]) to 192 km (120 mi), and the area disturbed had increased from 142 ha (351 ac) to 761 ha (1,881 ac). However, this increase in disturbed area may have been an artifact of what we designated disturbed versus what Tierra Data Systems called disturbed. The majority of the increase in disturbed habitat was attributed to an area that appeared to be an abandoned airfield.

The West Mesa MA consists of approximately 55,079 ha (136,100 ac), of which 46,257 ha (114,300 ac) is habitat managed by signatories to the Management Strategy/CA, and 8,822 ha (21,800 ac) are private land. No geothermal activity was found during BLM disturbance surveys, but about 2 percent of the surface has been affected by mining. In 2001, the BLM estimated that 11.4 percent of the West Mesa MA was covered with vehicle tracks (Wright 2002). Wright (2002) reported that the West Mesa and Yuha Basin MAs have relatively high levels of vehicular disturbance throughout and lack protected core habitats when compared with the East Mesa MA. The number of OHV routes in the West Mesa MA increased roughly fourfold from 1985 to 2001 (Wright 2002).

The Yuha Basin MA consists of about 24,363 ha (60,200 ac), of which 23,149 ha (57,200 ac) of habitat is managed by signatories to the Management Strategy/CA. This MA is bounded by I-8 to the north and fragmented by SR98 running east to west across the entire MA. In 2001, the BLM estimated that 10.5 percent of the eastern Yuha Basin MA was covered with vehicle tracks (Wright 2002). Wright (2002) estimated there was a 23 percent increase in routes and graded roads on this MA from 1994 to 2001, and commented that the vehicle track levels along SR98 in the eastern Yuha Basin MA are more consistent with an Open Area than they are with a limited area. Part of the high level of vehicle track disturbance in this area can be attributed to the increase in illegal drive-through traffic in the recent past from the border into the U.S. (BLM 2002). Drive-through traffic consists of vehicles that drive illegally across the International boundary, the majority off-road, without being inspected by Federal officers. The Border Patrol is planning to erect an “Anti-Vehicle Barrier System” along the international order that will decrease this specific OHV threat in the future. This system has been effective in reducing illegal drive-through traffic near the Algodones Dunes.

The primary reason for the proliferation of trails in limited use areas is most likely due to the lack of route signing and law enforcement available not only on the Yuha Basin MA, but across all MAs. “Federal Lands: Information on the Use and Impact of Off-highway Vehicles,” a U.S. General Accounting Office (USGAO) report to Congress (USGAO 1995), reported that BLM has “not completed inventories of their OHV areas, roads, and trails, and they have not finished preparing maps and posting signs to indicate where OHVs may or may not be used. Without such inventories, maps, and signs, neither the public nor the staff can be certain whether specific areas, roads, or trails are available for OHV use.” The report did not specifically look at the resource areas containing flat-tailed horned lizard habitat, but it does illustrate the difficulty BLM offices across the western United States have in complying with their agency's own regulations requiring the designation of lands for OHV use be communicated to the public. Without maps and signs to identify OHV routes, the USGAO (1995) concluded that restricted-use areas are, in effect, used and managed as open-use areas.

Our analysis showed that, between 1997 to 2002, the percentage of area disturbed increased from 6.6 to 9.7, the area of disturbance increased from 1,376 ha (3,400 ac) to 2,145 ha (5,300 ac), and the length of roads increased from 394 km (246 mi) to 655 km (409 mi). We consider the BLM figures for vehicle track coverage to be more accurate for strictly measuring vehicle tracks, because of the finer resolution in sampling. BLM measured track coverage on the ground, while our measurements were derived from aerial photographs with obviously much coarser resolution.

The Ocotillo Wells SVRA manages about 31,040 ha (76,700 ac) between the Borrego Badlands MA and the West Mesa MA, west of SR86. The Ocotillo Wells SVRA allows unrestricted use by OHVs across approximately 20,640 ha (51,000 ac) of this area, while the remaining land is a restricted area zone limited to OHV use on designated trails only (Hollenbeck, pers. comm. 2002). In addition to the Ocotillo Wells SVRA, in this geographic area unrestricted OHV use is also allowed in the BLM's Plaster City (approximately 6,070 ha [15,000 ac]) and Superstition Hills (approximately 14,164 ha [35,000 ac]) Open Areas.

The California State Department of Parks and Recreation (CSDPR 2002) has reported an increasing popularity of OHV activity in California, with a 30 percent increase in dirt bike registrations, a 96 percent increase in the number of All-Terrain Vehicle registrations, and a 96 percent increase in Dune Buggy and Sand Rail registrations from 1983 to 2000. The number of 4 wheel-drive vehicles registered in the state increased 74 percent from 1994 to 2001. The visitation rate to State Vehicular Recreation Areas in California increased 52 percent from 1985 to 2000. The Ocotillo Wells SVRA contains the majority of the greater than 36,423 ha (90,000 ac) in California's six SVRAs. These upward trends in OHV use in California can be expected to continue as the U.S. Census Bureau estimates California's population to increase by 39 percent, from 32 million to 45 million people by the year 2020.

OHV activity can result in direct mortality of flat-tailed horned lizards and other sand dwelling lizards (Luckenbach 1975; Luckenbach and Bury 1983; Muth and Fisher 1992). Road mortality has also been documented to occur (Turner and Medica 1982, Muth and Fisher 1992, ICC 1999 b , Young and Young 2000). Flat-tailed horned lizards may be more prone to road and OHV caused mortality than other lizards due their tendency to remain motionless when approached. OHV activity can also crush burrows used by flat-tailed horned lizards and modify habitat because of impacts to vegetation (Luckenbach 1975, Vollmer et al. 1976, Bury et al. 1977, Luckenbach and Bury 1983, Wilshire 1983), soil disturbance (Luckenbach 1975, Bury et al. 1977, Webb 1983, Strittholt et al. 2000); and introduction of non-native plants.

Past studies of OHV impacts on lizards (Busack and Bury 1974, Bury et al. 1977, Luckenbach and Bury 1983, Klinger et al. 1990, Beauchamp et al. 1998, Setser and Young 2000, Setser 2001, Gardner 2002, Grant and Wright 2002, Knauf 2002) have been largely inconclusive or cannot be readily applied across the species' range ( i.e. , have limited inference space; Ratti and Garton 1994). Luckenbach and Bury (1983) reported that a pronounced reduction in flat-tailed horned lizard abundance around the Algodones Dunes had been anecdotally noted by scientists. Marked declines in herbaceous and perennial plants, arthropods, lizards and mammals in OHV-used areas compared with nearby control areas were also reported by Luckenbach and Bury (1983). The declines, however, were for the Colorado Desert fringe-toed lizard ( Uma notata ) and beetles, and did not include flat-tailed horned lizards or ants. Similarly, the BLM (Knauf 2002) found that preliminary results from a comparative study on fringe-toed lizard abundance in OHV open and closed areas showed that abundance of fringe-toed lizards in the OHV-used areas of the Algodones Dunes was significantly lower than in areas closed to OHVs.

Research was conducted in creosote-dominated habitats in the Mojave Desert. Researchers compared reptile metrics (measures) between sites used differentially by OHVs and control sites (Bury et al. 1977). Bury et al. (1977) found a significant decrease in numbers of reptiles on ORV-used areas compared with numbers on control sites in the Mojave Desert. However, the highest number of desert horned lizards ( Phrynosoma platyrhinos ) on any one plot occurred on a moderately used OHV site. In research conducted by both Busack and Bury (1974) and Bury et al. (1977), there appeared to be an inverse relationship between increased use of OHVs and the abundance of lizards. Grant and Wright (2002) reported that OHV use was negatively correlated with flat-tailed horned lizard abundance on 12 plots on the Yuha Basin MA; however, the correlation was not statistically significant.

Research in the Ocotillo Wells SVRA found flat-tailed horned lizards at higher densities in non-sandy habitats than sandy habitats within the SVRA, which differed from most other research findings (Beauchamp et al. (1998). It was unclear, however, if flat-tailed horned lizards were found in these atypical habitat types because they are more plastic in habitat use than previously thought, these habitat types are more available in the Ocotillo Wells SVRA than other areas in which flat-tailed horned lizards have been studied, or as a response to OHV activity (Beauchamp et al. 1998). Beauchamp et al. (1998) stated that most of the sandy areas were heavily affected by OHV activity compared to the habitat types where flat-tailed horned lizards were more dense.

Setser and Young (2000) and Setser (2001) found flat-tailed horned lizards avoided OHV disturbed areas. However, there was no difference in flat-tailed horned lizard habitat use between areas within 10 m (33 ft) of OHV trails and sites further away from OHV trails (Setser and Young 2000, Setser 2001). Setser and Young (2000) and Setser (2001) concluded that (1) OHV use might render sites less suitable to flat-tailed horned lizard use, because of the impacts of OHV activity on vegetation and soil characteristics; or (2) OHV trails occur on sites not preferred by flat-tailed horned lizards ( e.g. , barren ground with no plants or rocks). However, Gardner (2002) suggested that OHV activity did not have an effect on flat-tailed horned lizards at two different areas in the Ocotillo Wells SVRA, on the basis of observations. Similarly, Grant and Wright (2002) found that abundance of flat-tailed horned lizards was more correlated with percentage of sand cover than level of OHV disturbance.

In conclusion, while there has been some research on the adverse effects of OHV activity on vegetation, soils, and flat-tailed horned lizards, its applicability to flat-tailed horned lizard populations is limited and unreliable, because of the lack of scientific rigor associated with the research designs. Additionally, the effects of OHV activity on flat-tailed horned lizard populations were not the primary research questions. Nevertheless, these studies have utility in generating hypotheses concerning variation in degree of OHV use and flat-tailed horned lizard abundance. At this time, we feel that the available studies do not collectively show that OHV activity causes declines in flat-tailed horned lizard populations in the four different geographic areas in the United States, or that adverse OHV impacts pose a significant threat to these populations. Management activities, including efforts to reduce conflicts with actions that impact flat-tailed horned lizard habitats, would be enhanced by focused research. Impacts of OHV activity on flat-tailed horned lizard populations should be studied using rigorous research designs to yield conclusions with high degrees of certainty (Ratti and Garton 1994) regarding the effects of OHV activity on flat-tailed horned lizard populations across the geographic areas previously mentioned.

The Management Strategy includes specific planning actions to “Maintain information exchange and coordination of monitoring, management activities, and research” and “Encourage and support research that will promote the conservation of [flat-tailed horned lizards] or desert ecosystems.” Research priorities include techniques for assessing abundance, life history, demographics, and effects of activities (including OHV use and associated activities). The research is conducted by the appropriate land management agency. We expect that future studies on these research priorities will provide the Service with the information necessary to reevaluate the status of the flat-tailed horned lizard and threats at a population level.

This geographic area is fragmented north to south by the New Coachella Canal, which separates the East Mesa populations from peripheral Algodones Dunes populations. Additional fragmentation is caused by SR78, I-8, and the All American Canal running mostly in an east to west direction. On the east side of the Algodones Dunes, Ogilby Road further fragments the area, although to a far lesser degree, running from I-8 to SR78.

The East Mesa MA is 46,661 ha (115,300 ac) in size, and consists of 43,869 ha (108,400 ac) managed by signatories to the Management Strategy/CA, and 2,792 ha (6,900 ac) of private land. In 2001, BLM estimated that about 4.8 percent of the surface area in the southern portion of the East Mesa MA was covered with OHV tracks (Wright 2002). Our disturbance analysis showed that, between 1997 and 2002, the percentage area disturbed increased from 7.3 to 7.8, acreage of disturbance increased from 3,278 ha (8,099 ac) to 3,311 ha (8,181 ac), and length of roads increased from 224 km (140 mi) to 944 km (590 mi).

In 2001, BLM disturbance surveys detected about 5 percent of the surface area in the southern East Mesa MA to be affected by agriculture, mining, and geothermal activity (Wright 2002). A live bombing area controlled by the U.S. Navy, El Centro Naval Air Facility is located in the northernmost portion of the MA. Based on our review of currently available information, we believe the limited nature of the activities discussed above, do not individually or collectively pose a significant threat to the species and/or its habitat such that the species warrants listing under the Act.

The Imperial Sand Dunes Recreation Area is over 60,704 ha (150,000 ac) of habitat directly to the east of the East Mesa MA. Unrestricted OHV activity is permitted on more than 47,754 ha (118,000 ac) of the area, while about 12,950 ha (32,000 ac) are designated as a wilderness area, with no vehicle use allowed. Habitat has been degraded in the open area of the Imperial Sand Dunes Recreation Area by OHV activity and associated camping. The main impacts to the population in this area are most likely along the western periphery of the Dunes, where people camp and ride OHVs to and from the Dunes and around camp, and to a lesser extent on the eastern periphery. The Dunes have heavy OHV use; however, surveys have shown that the Dunes have a low abundance of flat-tailed horned lizards (Turner et al. 1980, Luckenbach and Bury 1983, Wright 2002), even in the wilderness area of the Dunes (Luckenbach and Bury 1983, Wright, pers. comm. 2002).

There has been loss of flat-tailed horned lizard habitat on the west side of East Mesa due to geothermal development on both BLM and private land in an area termed the Known Geothermal Resource Area (KGRA). Historically, approximately 28,240 ha (69,760 ac) of potential flat-tailed horned lizard habitat were subject to geothermal development in the form of construction, maintenance and operation of geothermal powerplants within the KGRA. Ormesa LLC currently operates six geothermal power plants and 80 geothermal wells on nearly 5,463 ha (13,500 ac) of BLM land in the KGRA (D. Campbell, Ormesa LLC Plant Manager, in litt. 2002).

Based on our review of currently available information, we believe the limited nature of the geothermal activities discussed above and their location on the periphery of East Mesa, do not constitute a significant threat to the species and/or its habitat such that the species warrants listing under the Act.

The historic range of the species in Arizona was estimated at approximately 82,360 ha (203,520 ac) by Hodges (1997), and 89,455 ha (221,043 ac) by the AGFD (Duane Shroufe, AGFD Director, in litt. 2002). By 1997, Hodges (1997) estimated about 69 percent (56,780 ha [140,301 ac]) of the species' historic range remained. Habitat losses resulted from conversion to agriculture, urbanization, and military use. AGFD similarly estimates about 72 percent (64,283 ha [158,844 ac]) of the historic range currently remains in Arizona. AGFD reported that approximately 3.7 percent of historic habitat has been lost since 1996. Conversion of habitat to agriculture has been the primary land use responsible for the loss of habitat in Arizona, eliminating about 17.5 percent of historic habitat by 1997. Conversion of habitat for urban and military use accounted for the loss of approximately 11.1 percent and 2.5 percent of historic habitat, respectively (Hodges 1997). The 1993 proposed rule noted that urban and agricultural expansion into flat-tailed horned lizard habitat on the part of the communities of San Luis, Yuma, and the Foothills was a threat. While the expansion of these communities will convert some flat-tailed horned lizard habitat, 77 percent of the remaining habitat is within the MA and 87 percent is managed by signatories to the CA. The remaining private land subject to development is adjacent to existing urban and agricultural areas and is fragmented. In addition, the potential development of this land will not fragment or degrade the contiguous habitat remaining in the Yuma Desert MA, which comprises the majority of the flat-tailed horned lizard habitat in Arizona. For these reasons, the remaining private land does not constitute a significant portion of the range of the flat-tailed horned lizard in this geographic area.

Of the current habitat, 50,384 ha (124,500 ac) are within the MA. Recently, 6,273 ha (15,500 ac) of suitable habitat owned by the State of Arizona within the Yuma Desert MA was acquired by the Department of Defense, a signatory to the Conservation Agreement. Consequently, the Management Area is completely owned by signatories to the Management Strategy.

A proposal for an Area Service Highway on the west side of the MA would reduce the MA by about 405 ha (1,000 ac), because it would revise the MA boundary. The Area Service Highway would further fragment habitat on the west side of the MA by dividing it from the adjoining habitat outside the MA. Because the Area Service Highway will only contract the MA boundary on one side by less than 1 percent, leaving the habitat in the MA contiguous, this impact does not constitute a significant threat to the species or its habitat such that the species warrants listing under the Act.

The Yuma Desert MA is relatively undisturbed compared to the Management Areas in California. Rorabaugh et al. (2002) randomly surveyed the Management Area to assess human disturbance and found the most common form was off-road-vehicle tracks, which covered 2.9 to 3.4 percent of the surface area. The Marine Corps Air Station-Yuma has a 66 ha (162 ac) target area called the “Moving Sands Target” within the MA. Based on our review of currently available information, we believe the limited nature of the activities discussed above, do not individually or collectively pose a significant threat to the species and/or its habitat such that the species warrants listing under the Act.

Currently, there is an estimated 14,876 ha (36,758 ac) of flat-tailed horned lizard habitat outside the MA. Of this habitat, 8,376 ha (20,697 ac) are owned by either the Arizona State Land Department, private interests, or the Cocopah Tribe. No immediate plans for development of this land are known; however, AGFD considers the land to be vulnerable to development. The other 44 percent is owned primarily by the BOR, which is a signatory agency of the Conservation Agreement, so the land is less likely to be developed (Shroufe in litt. 2002). However, approximately 6,475 ha (16,000 ac) of habitat managed by the BOR are within the “5-Mile Zone” of the international border with Mexico, which has been identified by the City of San Luis in their General Management Plan for potential development (Robert Kritzstein, BLM, in litt. 2002). These lands do not comprise a significant percentage of the flat-tailed horned lizard habitat in this geographic area, and the potential development of this land will not fragment or degrade the contiguous habitat remaining in the Yuma Desert MA. Therefore, these activities do not constitute a significant threat to the species or its habitat such that the species warrants listing under the Act.

Invasion of non-native plants into the desert systems has been noted as a threat (Hodges 1997, Shroufe in litt. 2002). Non-native species that have become prevalent in certain areas of the Sonoran Desert include Schismus barbatus (Mediterranean grass) and Brassica spp. (mustard). In Arizona, high densities of Mediterranean grass currently appear limited to disturbed areas in proximity to Yuma (Shroufe in litt. 2002). These species can become dense and effectively stabilize substrates that were once loose sand, likely reducing flat-tailed horned lizard habitat quality. Increased fuel load for fire is also a concern with these non-native plant species, and the effects of a new fire regime on the desert ecosystems and ultimately the flat-tailed horned lizard is unknown. Because of the limited extent to which non-native plants have established themselves in flat-tailed horned lizard habitat in this geographic area, this threat does not warrant listing the species under the Act.

At this time, much less is known about the threats of habitat loss and modification in Mexico. Urban and agricultural farming are the most immediate threats to the species in Mexico (CEDO 2001). Considerable habitat loss has occurred in the Mexicali Valley in Baja California Norte where urban and agricultural development extends from Mexicali to the Colorado River (Johnson and Spicer 1985, Foreman 1997). This development from Mexicali to the Colorado River together with the All American Canal, has isolated flat-tailed horned lizard habitat on the Andrade Mesa in Mexico from East Mesa in the U.S. and also from the Yuha Desert in Mexico. Habitat fragmentation also has resulted from a variety of human activities, such as the creation of roads and highways. Other potential threats to the habitat of the flat-tailed horned lizard include invasion of non-native plants such as Russian thistle ( Salsola kali ), mustards ( Brassica spp.), and salt cedar; cattle grazing in the Gran Desierto/Pinacate region; and the increasing use of OHVs in sandy plains, dunes, and back-roads (CEDO 2001). However, the effects of these threats have not been adequately documented (CEDO 2001).

In conclusion, after considering all the current available information, we have determined that the threats identified under Factor A are not significant enough to conclude that the flat-tailed horned lizard is likely to become endangered throughout all or a significant portion of its range in the foreseeable future. However, the Coachella Valley has experienced a significant amount of habitat curtailment and there is the potential for significant habitat destruction in the immediate future, because of the predominant private ownership of habitat and the rate of development in the Coachella Valley. The available data do not suggest that habitat modification by OHV use threatens the flat-tailed horned lizard on the west side of the Salton Sea/Imperial Valley and east side of the Imperial Valley. We conclude that the Arizona population is not likely to become endangered within the foreseeable future, because the low percentage of lands in private ownership makes for a low degree of threat from development. Further, OHV use has not been shown to be a threat to populations here and this geographic area experiences a relatively low level of OHV activity.

In the past, scientists have reported on collection of flat-tailed horned lizards. The most noted example was the collection of 381 flat-tailed horned lizards along an 11.3 km (7 mi) stretch of SR78 between the Coachella and East Highline Canals between 1961 to 1964 (Bolster and Nicol 1989). Norris (1949) noted that near Palm Springs the capture of flat-tailed horned lizards was not a common occurrence, and that collecting was good if it yielded two flat-tailed horned lizards in one day. Collection of flat-tailed horned lizards has not been reported since 1964. Because of the difficulty in locating these lizards, due to their cryptic coloration and tendency to remain motionless when approached, no threat of overutilization of this species is known or expected in the future on either public or private lands. Collection for the pet trade has not been identified as a threat to the species.

While disease is not known to be a threat to flat-tailed horned lizard persistence, flat-tailed horned lizards are depredated by a variety of predators. Flat-tailed horned lizard predators include loggerhead shrikes, round-tailed ground squirrels, grasshopper mice, snakes, canids, American kestrels, common ravens, and burrowing owls (Muth and Fisher 1992, Duncan et al. 1994, Young and Young 2000). Round-tailed ground squirrels were documented as the main predator of flat-tailed horned lizards during research conducted in California (N = 19; Muth and Fisher 1992) and Arizona (N = 26; Young and Young 2000), with loggerhead shrikes being the second most common predator. The 1993 proposed rule noted that Bolster and Nicol (1989) suggested that predation of flat-tailed horned lizards near agricultural areas and urban areas may be elevated because of the presence of house cats in urban areas and the abundance of loggerhead shrikes and other predatory birds in croplands. We were unable to find any documentation suggesting that house cats increased mortality rates for flat-tailed horned lizards adjacent to urban areas. Increased predation rates on flat-tailed horned lizards by loggerhead shrikes and American kestrels have been reported in localized areas where human-provided perches ( e.g. , power lines or palm trees) have been used by shrikes and kestrels as points from which to hunt (Young and Young 2000, Barrows pers. comm. 2002). Despite this, available evidence does not suggest that predation has caused a significant threat to the persistence of the species in any part of its range, public or private.

Existing mechanisms that could provide some protection for the flat-tailed horned lizard include the following: (1) State laws, including the California Endangered Species Act (CESA) and CEQA, and the Arizona State List of Wildlife of Special Concern and Arizona Game and Fish Commission Order 43; (2) Federal laws and regulations, including the National Environmental Policy Act (NEPA), the Endangered Species Act in those cases where this species occurs in habitat occupied by other listed species, and the Fish and Wildlife Coordination Act; (3) local land use processes and ordinances; (4) the Flat-Tailed Horned Lizard Rangewide Management Strategy and associated Conservation Agreement; (5) regional planning efforts such as the Coachella Valley Multi-Species Habitat Conservation Plan; and (6) foreign laws and regulations in Mexico, including the Mexican Endangered Species List.

The State of California considers the flat-tailed horned lizard a species of special concern, but it is not listed as threatened or endangered under CESA. Consequently, the species receives no protection under CESA. In California, the management of Anza-Borrego Desert State Park is favorable for the conservation of the flat-tailed horned lizard because of the emphasis placed on resource protection and regulations limiting OHV activity to designated trails.

The States of California and Arizona prohibit the collection of flat-tailed horned lizards pursuant to California Code of Regulations, Title 14, Section 5.60, and Arizona Game and Fish Commission Order 43, except by permit. The AGFD has included the species on the draft List of Wildlife of Special Concern in Arizona, which Arizona uses to prioritize species for planning and funding purposes. No state regulations in Arizona protect the habitat of this species at this time.

CEQA requires review of any project that is undertaken, funded, or permitted by a State or local governmental agency. If a project with potential impacts on the flat-tailed horned lizard were reviewed, CDFG personnel could determine that, although not listed, the lizard is a de facto endangered, threatened, or rare species under section 15380 of CEQA. Once significant effects are identified, the lead agency has the option of requiring mitigation for effects through changes in the project or deciding 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 or their habitat. Protection of listed species through CEQA is, therefore, dependent upon the discretion of the agency involved.

The flat-tailed horned lizard may receive some level of protection through the Act because of overlapping ranges or proximity to other federally listed species in California. These species include Coachella Valley fringe-toed lizard ( Uma inornata ), Coachella Valley milk-vetch ( Astragalus lentiginosus var. coachellae ), Pierson's milk-vetch ( Astragalus magdalenae var. peirsonii ), bighorn sheep in the Peninsular Ranges ( Ovis canadensis ), and desert tortoise ( Gopherus agassizii ).

The federally threatened Coachella Valley fringe-toed lizard is restricted to the Coachella Valley, but its distribution overlaps with the northern portion of the flat-tailed horned lizard's range in the Coachella Valley. However, the flat-tailed horned lizard may use additional habitat within the Coachella Valley in which the fringe-toed lizard does not occur. In addition, the majority of suitable habitat in the Coachella Valley in which both the fringe-toed lizard and flat-tailed horned lizard occur is not protected. Only 2,150 ha (5,314 ac) of suitable flat-tailed horned lizard habitat is protected as part of the Coachella Valley Fringe-toed Lizard Preserve System (Coachella Valley Mountains Conservancy 2001). The federally endangered Coachella Valley milk-vetch also co-occurs with the flat-tailed horned lizard only within the Coachella Valley and offers no additional conservation beyond that provided by the fringe-toed lizard. However, projects in which there is a Federal action that may affect one or both these species are subject to Section 7 consultation with the Service under the Act. Section 7 consultations on the Coachella Valley fringe-toed lizard and/or Coachella Valley milk-vetch may indirectly provide ways to avoid or minimize adverse impacts to the flat-tailed horned lizard in addition to the targeted species.

The federally endangered bighorn sheep of the Peninsular Ranges and flat-tailed horned lizards may overlap in habitat use at the edge of both of their ranges, where there is suitable habitat for both species in close proximity to the toe of slope of the mountains. However, the benefit to the flat-tailed horned lizard provided by the protection of bighorn sheep in the Peninsular Ranges is inconsequential.

The federally endangered Pierson's milk-vetch is restricted to the Algodones Dunes, in which the flat-tailed horned lizard occurs in low numbers (Wright 2002), therefore offering little protection to the flat-tailed horned lizard. The range of the federally threatened desert tortoise may marginally overlap with the flat-tailed horned lizard in certain parts of the Coachella Valley, near the east side of the Salton Sea and the east side of the Algodones Dunes; however, no conservation value to the flat-tailed horned lizard should be expected.

Through NEPA and the Fish and Wildlife Coordination Act, we may recommend discretionary conservation measures to avoid, minimize, and offset impacts to fish and wildlife resources resulting from Federal projects and water development projects authorized by the U.S. Army Corps of Engineers.

The Management Strategy/CA has been the main regulatory mechanism established for the conservation of the flat-tailed horned lizard throughout its range. The Management Strategy/CA was signed in 1997 and included an extensive list of planning actions developed as recommendations to management agencies to ensure population viability within each MA (Foreman 1997). A caveat of the Management Strategy, however, was that the implementation of these actions is subject to availability of funds and compliance with all applicable regulations. In addition, the CA is a voluntary agreement to implement the Management Strategy; a signatory agency may withdraw from the CA after giving the other signatories 60 days' notice.

Some of the planning actions have not yet been implemented. The planning action to “limit vehicle access and limit route proliferation within MAs,” has not been achieved. No action has been taken regarding the planning subactions to designate all routes either open, closed, or limited; and to reduce open and limited route density in MAs (Shroufe in litt. 2002, Wright in litt. 2002), despite these subactions' being “priority 1” actions. Priority 1 actions are defined in the Management Strategy (Foreman 1997) as “action[s] that must be taken in the near term to conserve the species and prevent irreversible population declines.” The lack of enforcement to ensure closed and limited use areas is the primary deficiency of Management Strategy implementation. Should future research demonstrate that OHV use poses a significant threat to the species, these deficiencies may need to be corrected to avoid the species being listed in the future.

While some important planning actions in the Management Strategy have not yet been implemented, the actions that have been and are being implemented do provide protection for the flat-tailed horned lizard and its habitat and have contributed to reductions in specific threats to the species. Most planning actions listed in the Management Strategy were implemented between the period of May 1997 and June 2002 (see our response to comment 3). The Management Strategy actions that contributed the most to the conservation of flat-tailed horned lizards were the exclusion of pesticide spraying within MAs, exclusion of competitive recreational events within MAs, efforts to develop and implement a monitoring strategy, and compensation for project impacts to flat-tailed horned lizard habitat.

The actions that have been and are being implemented on the MAs do provide protection for the flat-tailed horned lizard and its habitat in each of the four geographic areas, except the Coachella Valley, in which the flat-tailed horned lizard occurs. Additionally, the Management Strategy has contributed to reductions in specific threats to the species, and to the viability of the flat-tailed horned lizard in each of the five MAs and ultimately the four geographic areas. Current available information does not indicate that the viability of the flat-tailed horned lizard in each of the geographic areas in which it occurs, with the exception of the Coachella Valley, is dependent on full implementation of the Management Strategy.

Regional Habitat Conservation Plans in preparation by the Coachella Valley Association of Governments and the Agua Caliente Band of Cahuilla Indians would conserve a yet-to-be-determined amount of flat-tailed horned lizard habitat, leaving the rest subject to development. These Habitat Conservation Plans are in progress and are subject to approval in the future; therefore, their completion and implementation cannot be relied upon for conservation purposes.

The species is listed in the official Mexican Endangered Species List as threatened (CEDO 2001). Consequently, the species is protected from collection, sale, and commerce, and its habitat is afforded special protection in Mexico. The majority (about 60 percent) of the species' range in Mexico lies within two Mexican Federal natural protected areas: The Upper Gulf of California and Colorado Delta Biosphere Reserve, and the Pinacate and Gran Desierto de Altar Biosphere Reserve (CEDO 2001). The National Park of Pinacate is an area administered by the Mexican government with use restrictions similar to those of a national park in the United States. However, the boundaries are not well established, and enforcement of regulations is minimal.

In conclusion, currently available information does not indicate that inadequate regulatory mechanisms necessitate listing the species under the Act. However, if flat-tailed horned lizard populations are found to be declining in the future, it would be prudent to revisit the adequacy of the regulatory mechanisms mentioned above, including the Management Strategy.

Pesticide spraying associated with the Curlytop Virus Control Program to control the beet leafhopper ( Circulifer tenellus ) (Curlytop Program) on the east and west sides of the Salton Sea and Imperial Valley, is a threat because of its effects on the ant prey base for flat-tailed horned lizards. In the 1993 proposed rule, this threat was identified as having an impact mainly the East Mesa and Yuha Desert. Since the proposed rule, the threat from pesticide spraying has been reduced by a BLM Record of Decision on the Curlytop Program in 1997 and 2002 to prohibit pesticide spraying within MAs. The Curlytop Program or a similar program has not been conducted in the Arizona geographic area of the species range (Minch, Arizona Department of Food and Agriculture, pers. comm. 2002). However, the Curlytop Program persists outside MAs and its direct, and indirect effects on flat-tailed horned lizard populations outside the MAs are not known in any detail. Foreman (1997) stated that the effects of applying broad-spectrum insecticide to desert scrub communities over many years are potentially many and complex. Pesticide/herbicide drift from croplands also has the potential to adversely affect plant communities adjacent to agricultural areas (Foreman 1997).

The California Department of Food and Agriculture's Joint Environmental Assessment proposed that the Curlytop Program is likely to have no direct adverse effect to flat-tailed horned lizard populations, because studies (Hall and Clark 1982, Peterle and Giles 1964, and Giles 1970; all cited in CDFA 2000) have shown various lizard species have a high tolerance of malathion. However, indirect effects of the Curlytop Program to ant populations were noted as being a concern in the associated Biological Opinion (11430-2002-7FCC-2365.1). The Curlytop Program included monitoring of ant colonies in 1991. Malathion was found to negatively affect ant colonies temporarily; however, ant colonies rapidly recovered (Peterson in litt. 1991). The Biological Opinion estimated the program could affect up to 141,643 ha (350,000 ac) of flat-tailed horned lizard habitat outside the MAs; however, most treatments are localized.

Historically, treatments in the Imperial Valley are necessary 1 out of every 3 years, and the area treated may vary from 50 to a few thousand hectares (100 to several thousand acres) (CDFA 2000). The most recent treatments in the Imperial Valley were in 1998 and 1991, when 2,388 ha (5,900 ac) and 2,891 ha (7,143 ac), respectively, of flat-tailed horned lizard habitat were sprayed (CDFA 2000).

Because of the limited extent of area sprayed, the prohibition of spraying on MAs, the long intervals between applications, and the apparently temporary nature of the adverse affects, we do not believe the Curlytop Program to be a threat to the species throughout all or a significant portion of its range to the extent that the flat-tailed horned lizard would be likely to become in danger of extinction in the foreseeable future. However, because the study conducted by CDFA (mentioned earlier) was cursory, we recommend further monitoring of ant colonies and flat-tailed horned lizard populations in treated and adjacent areas.

The potential adverse impacts associated with drought were mentioned in the 1993 proposed rule. The threat that localized areas may experience long-term drought resulting in decreased local flat-tailed horned lizard populations still exists.

In our 1993 proposal to list the flat-tailed horned lizard as threatened, we identified numerous potential threats to the species and its habitat as the rationale for believing that the listing of the flat-tailed horned lizard was warranted. In this withdrawal, we have spoken directly to many of the threats discussed in our 1993 proposal in addition to other information that has become available since the publication of that proposal. We did not, however, speak directly to all threats because we believe, based on our review of currently available and credible information, that the threats not directly discussed here no longer pose a significant threat to the species and/or its habitat individually or in combination such that the species warrants listing under the Act.

The species was proposed as threatened in 1993 because much of the habitat of this species was reported to have been lost, fragmented, or degraded by human use; and relative densities were reported to have declined in at least one of five optimal habitat areas. Much of the species' habitat has been lost, fragmented, or degraded, but available data concerning population abundance, trends, and threats do not indicate that because of this habitat loss and degradation the species is likely to become endangered within the foreseeable future throughout all or a significant portion of its range.

The information on population trends presented in the 1993 proposed rule was derived in part from scat count data collected between 1979 and 1991. We no longer consider the use of these scat counts reliable for this purpose, as previously discussed in this rule. Therefore, we do not consider scat counts useful or reliable indicators of population abundance. Currently available data do not suggest that flat-tailed horned lizard populations are declining in any of the geographic areas.

On the basis of the analysis of the five factors for the four different geographic areas in which the flat-tailed horned lizard occurs in the U.S., we conclude that the species is in danger of extirpation within the Coachella Valley, because of the large amount of habitat loss, the drastic curtailment of its range, a high degree of fragmentation of remaining habitat, and the threat of habitat loss in the foreseeable future.

While we have determined that the population of flat-tailed horned lizards in the Coachella Valley is endangered with extinction within the foreseeable future, we have concluded that the current distribution of the flat-tailed horned lizard in the Coachella Valley does not constitute a significant portion of the species' range. We have made this determination based on the following: (1) Small extent of flat-tailed horned lizard habitat in the Coachella Valley relative to the overall range of the species (approximately 3 percent of the range in the U.S., and roughly 1 percent of the species range overall, including Mexico); and (2) high level of habitat fragmentation. In addition, current scientific evidence does not suggest that the Coachella Valley population is genetically, behaviorally, or ecologically unique; nor does it appear to be a large population of flat-tailed horned lizards or contribute individuals to other geographic areas through emigration.

Currently, the only geographic areas that have relatively large amounts of flat-tailed horned lizard habitat on private lands are the Coachella Valley and the west side of Salton Sea/Imperial Valley. The Coachella Valley is discussed above. Currently available information does not suggest that development of private lands on the west side of Salton Sea/Imperial Valley poses a threat in the foreseeable future. The only towns in this geographic area are Borrego Springs, Ocotillo, Ocotillo Wells, and Salton City. The largest of these towns is Borrego Springs with a population of approximately 3,000 people. It is likely the size of these towns will not change significantly in the foreseeable future. Therefore, we conclude that the threat of development of private lands in areas other than the Coachella Valley is not significant enough to endanger the species within the foreseeable future throughout a significant portion of its range.

In addition, currently available data do not suggest that the flat-tailed horned lizard is likely to become an endangered species within the foreseeable future on the west side of the Salton Sea/Imperial Valley and east side of Imperial Valley. The primary potential threat to the flat-tailed horned lizard identified for these areas is OHV use. As discussed under Factor A in the “Summary of Factors Affecting the Species” section, we believe the available studies do not collectively show that OHV activity causes declines in flat-tailed horned lizard populations, or that adverse OHV impacts pose a significant threat to these populations.

We conclude the Arizona population is not likely to become endangered within the foreseeable future, because of the relatively low level of OHV activity in this geographic area and the low degree of threats from development due to the low percentage of lands in private ownership.

Following our above analysis and discussion, we have determined that the action of listing the flat-tailed horned lizard as threatened throughout its range as proposed in 1993 is not warranted. We have made this determination because the threats to the species, as identified in the proposed rule, are not as significant as earlier believed, and current available data do not indicate that the threats to the species and its habitat are likely to endanger the species in the foreseeable future throughout all or a significant portion of its range. Consequently, we withdraw our 1993 proposal to list the flat-tailed horned lizard as threatened throughout its range.

A complete list of all references cited is available at the Carlsbad Fish and Wildlife Office (see ADDRESSES above).

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

The authority for this action is section 4(b)(6)(B)(ii) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ).